Commentary: Randy Coleman

State Needs To Change Jackpot Justice Culture

The Charleston Gazette, September 26, 2005

There has been a lot of talk lately about a $253.4 million jury verdict against Merck & Co., the manufacturer of the drug Vioxx. A recent letter to the editor hailed the jury verdict as proper punishment for a wrongdoer. The Charleston Gazette disagreed, calling the decision an illustration of “the jackpot nature of America’s litigation system.” One thing is for sure: The $253.4 million verdict could be a preview of coming attractions in West Virginia.

When asked how to prepare a “Vioxx-style” case, the wealthy personal injury lawyer who obtained the $253.4 million verdict against Merck had a simple answer: “Figure out where to file cases...Just figure out where best to file it.” In other words, file the case in a plaintiff-friendly court.

This is bad news for West Virginia. For the past several years, West Virginia has been the only state designated by the American Tort Reform Association as a “judicial hellhole.” Unlike Texas, where outrageous jury decisions such as the Merck verdict will be reduced, West Virginia does not place reasonable limits on damages. Nor do we do enough to prohibit forum shopping in our courts. Far too frequently, personal injury lawyers are finding ways to file and re-file lawsuits in plaintiff-friendly circuit courts. As such, our state courts have become a favorite for wealthy personal injury lawyers.

Don’t believe me. Look through your local newspaper and see if you can’t find a personal injury lawyer advertising for clients who have used Vioxx. If West Virginia weren’t a haven for such lawsuits, out-of-state personal injury lawyers wouldn’t be advertising for plaintiffs in our newspapers.

This is just one of the factors that makes our state a lawsuit breeding ground. There are other holes in our system that must be fixed. In West Virginia, mere fear of injury can be grounds for filing a lawsuit, thanks to what is often called the “No proof? No problem!” medical-monitoring rule authored by former Justice Warren McGraw. Lawsuits based on questionable facts — such as the possibility, not even the probability, of illness — drag down what should be a fair system.

People deserve the right to seek justice in West Virginia courts. But the type of “justice” administered in some health-related lawsuits defies good sense and raises the costs of health-care remedies. Our state needs to stand up to lawsuit abuse and change our jackpot justice culture.

Coleman is executive director of Citizens Against Lawsuit Abuse.