The American Tort Reform Association again has listed West Virginia’s court system in its annual Judicial Hellholes report.

The 2010-11 report released Dec. 14 ranks the state as the third worst judicial system behind Philadelphia and California’s Los Angeles and Humboldt counties.

The third-place ranking is a drop from last year’s No. 2 ranking. ATRA again cited as its biggest objection the state’s lack of an intermediate appellate court that guarantees a defendant an automatic right of appeal again.

“There are certain places in the nation where a defendant cannot get a fair trial,” said Victor Schwartz, general counsel for the ATRA, referring to West Virginia and other court systems on the list.

Schwartz said West Virginia used to be No. 1 a few years ago, but has consistently dropped down the list because it has made efforts to change the state’s judicial system.

“Some efforts with the new rule changes have been made toward a right of appeal by the West Virginia Supreme Court,” Schwartz said. “The state used to have no meaningful appeal process no matter how horrendous or erroneous a case was against a defendant but has made some changes. We will see how the rule changes work and if they are effective; then we will surely give recognition for that,” Schwartz said.

According to the 2010-11 ATRA report, the Mountain State is all but unique in that its civil defendants do not have a guaranteed right to appeal adverse rulings.

“As the Supreme Court of Appeals, the state’s highest and only appeals court, has acknowledged, it is already the ‘busiest appellate court of its type in the country.’ West Virginia’s caseload exceeded by nearly 1,500 cases that of the next-busiest state, Nevada, and was more than the states of Delaware, Maine, North Dakota, Rhode Island and Wyoming combined.”

ATRA stated despite the figures, the state lacks an intermediate appellate court, and the high court can choose to deny parties’ petitions for review. The report said the state’s high court refused in 2009 to hear 2,756 of the 3,589 cases in which such petitions were filed, and it issued fully signed opinions in just 67 cases. In civil cases, the court granted review in less than one in four cases.

Schwartz said he hopes the rule changes are a step in the right direction, but questions will remain.

“Are the rule changes a step toward a meaningful appeal? I do not know, but I think it is inconceivable a court system can handle all those appeals meaningfully,” Schwartz said.

Richie Heath, attorney and executive director of West Virginia Citizens Against Lawsuit Abuse, said this year’s report shows the state is moving in the right direction with the rule changes but is a “positive reminder” more work needs to be done.

The report questions whether the court can sufficiently handle giving appeals through memorandum decisions while providing judicial guidance throughout the state,” Heath said. “The memorandum decisions will not set binding precedent.”

Heath noted that in 1997, the Supreme Courts own “Commission on the Future of West Virginia’s Judicial System” acknowledged the state had one of the busiest dockets in the country and needed an appellate court. The commission noted in 1997 there had not been a thorough review of the state’s court system since 1974. He said the court should be able to give citable opinions that provide predictable legal standards for the state.

“Only then will businesses feel safe and now going into the state that there is an automatic right for an appeal if a lower court gets the decision wrong in cases involving business,” Heath said.

Tiger Joyce, president of ATRA, also noted the state’s venue laws should also be changed.

“It may not jump out as the most significant reform needed, but in reality the current laws have a major impact,” Joyce said.

Joyce said medical liability laws have helped curtail noneconomic damages in medical malpractice lawsuits. The state enacted the limit in 2003. The state’s OB/GYN physicians had the second highest insurance premiums in the country. The report also noted a shortage of neurosurgeons, orthopedic surgeons and trauma care. The court twice has upheld a previous version of the law.

“The West Virginia court has been good about upholding the law. If the statute is overturned, it will cause significant implications that will trigger further review,” Joyce said.

The report recognized the state in its “Points of Light” section for Ohio County Circuit Court Judge Arthur Recht’s dismissal of most of 1,400 asbestos claims filed by a Pittsburgh law firm after the firm opted not to attempt to meet a court order requiring it to submit additional evidence of its clients’ alleged exposure to asbestos and their medical history. Heath said he believes the state’s venue law and the Recht decisions are directly tied together.

“The report is dead on this one. Asbestos cases are a prime example of mass litigants from out of state flooding the state’s legal system,” Heath said. “At the mass meetings in the cases at Charleston, all but two of the nearly 900 litigants were from out of state.”

Schwartz said a change in the state’s open venue laws would assure only the state’s residents and those conducting business in the state could sue.

“That would put up the green flag that West Virginia is a good place to conduct business,” Schwartz said.

Not everyone agrees with ATRA’s assessment of the state’s judicial system.

Both the American Association for Justice and West Virginia Association for Justice released statements Dec. 14 calling ATRA’s report as “corporate propaganda”, claiming ATRA is supported by corporate giants such as Philip Morris, Dow Chemical, Exxon, General Electric, Aetna, Geico, State Farm, Pfizer, Johnson Johnson and Nationwide.

The American Association for Justice stated in a Dec. 14 news release, ATRA again recycled its annual “Judicial Hellholes” report, complete with the same lies and The effort is funded by negligent corporations and industries to undermine the civil justice system and prevent American workers and consumers from getting justice. “Despite all the chemical companies and polluters behind this front group, it appears ATRA is going green – recycling the same junk report that has been debunked and ridiculed year after year,” American Association for Justice Communications Director Ray De Lorenzi said. “It’s an early holiday token of thanks to its drug, tobacco and insurance industry funders and a ploy for these corporations to continue their negligent behavior and avoid accountability.”

The West Virginia Association of Justice news release called the report “bad social science” and nothing more than propaganda released by billion-dollar special interests who want immunity when corporations break the law and risk the lives and financial security of West Virginia consumers and workers.

“The American Tort Reform Association was created for one purpose—lobbying for immunity when corporations break the law. It is a front group for big money corporate special interests, and its so-called report is not a legitimate analysis of either West Virginia‘s legal system or our business climate,” Michael J. Romano, president of the West Virginia Association for Justice, said. “ATRA is continuing its unrelenting attack on West Virginia and our civil justice system because our courts are the one place where these corporate wrongdoers can still be held accountable for their negligence and misconduct.”

A Supreme Court representative said Dec. 14 the court had no comment concerning the report and does not comment on reports put out by special interest groups.

West Virginia was the only “Judicial Hellhole” in which the full state court system was recognized. Rounding out the top five were South Florida and Cook County, Ill.