WEST VIRGINIA REFORMS

Appeal Bond Reform: S.B. 194 (2007). Limits appeal bond amounts to $50 million, adjusted for inflation.

Appeal Bond Reform: SB 661 (2001).  Limits the amount a defendant can be required to pay to secure the right to appeal to $200 million.  Provides that an appeal bond may not exceed $100 million for compensatory damages and $100 million in punitive damages.

Good Samaritan Liability Reform: Volunteer Fire Equipment: HB 2986 (2002).  Limits the civil liability of an entity donating used or obsolete fire equipment to a volunteer fire department.      

Joint and Several Liability Reform – SB 421 (2005).

Bars the application of joint and several liability for defendants 30 percent or less at fault.  In such situations, defendants pay only percentage of fault as determined by the jury.  Provides that if a claimant has not been paid after six months of the judgment,         defendants 10 percent or more responsible are subject to reallocation of uncollected amount.  Defendants less than 10 percent at fault or whose fault is equal to or less than the claimant’s percentage of fault are not subject to reallocation.

Joint and Several Liability Reform: W.V. Code Ann.  § 55-7B-9.  Bars application of the rule of joint and several liability in the recovery of damages, where the defendant is found to be less than 25% at fault.

Medical Liability Reform/ Expressions of Sympathy – HB 3174 (2005).

Provides that no statement, affirmation, gesture or conduct of a healthcare provider who provided healthcare services to a patient, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, to the patient, a relative of the patient or a representative of the patient and which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence of an admission of liability or as evidence of an admission against interest in medical liability civil actions.

Medical Liability Reform/Innocent Prescriber (2005).

Provides that no health care provider is liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed or used by a healthcare provider in accordance with instructions approved by the U.S. Food and Drug Administration regarding dosage and administration of the drug, the indications for which the drug should be taken or device should be used, and the contraindications against the drug or using the device.  The liability exemption does not apply if: (1) the health care provider had actual knowledge that the drug or device was inherently unsafe for the purpose for which it was prescribed or used or (2) a manufacturer of such drug or device publicly announces changes in the dosage or administration of such drug or changes in contraindications against taking the drug or using the device and the health care provider fails to follow such publicly announced changes and such failure proximately caused or contributed to the plaintiff's injuries or damages.

Medical Liability Reform: Noneconomic Damages: HB 2122 (2003).  Limits noneconomic damages to $250,000 to $500,000.

Medical Liability Reform: Trauma Care Liability: HB 2122 (2003).  Limits trauma care awards to $500,000.

Medical Liability Reform: Joint and Several Liability: HB 2122 (2003).  Liability is several among defendants who go to trial, but does not take into account settling defendant’s liability.

Medical Liability Reform: Medical Review Panel: HB 2122 (2003).  Requires that the Board of Medicine to investigate claims after 3 judgments or 5 settlements within 5 years.

Medical Liability Reform: Certificate of Merit: HB 601 (2001).  Establishes a certificate of merit in medical liability actions, abolishes third-party bad faith lawsuits in medical liability actions, and permits parties to submit their claim to either pretrial mediation or a summary jury trial.  Increases the number of jurors from 9 to 12 in jury trials.  Allows adjudication of a claim if at least nine members of the jury agree.

Medical Liability Reform: Good Samaritan Liability Reform: SB 744 (1998).  Limits liability for physicians who volunteer for certain athletic events sponsored by a public or private elementary or secondary school.

Medical Liability Reform: Noneconomic Damages Reform: W.V. Code Ann. § 55-7B-8.  Limits noneconomic damages in medical liability cases to $1 million.  The $1 million limit on noneconomic damages awards in medical liability actions did not violate the equal protection, due process, or right to remedy provisions of the State Constitution.  Robinson v. Charleston Area Medical Center, Inc., 414 S.E.2d 877 (W.Va. 1991); Estate of Verba v. Ghaphery, 2001 WL 703840 (W. Va. June 19, 2001) (reaffirming Robinson decision). 

Monitoring Settlements in Lawsuits Against State Agencies: SB 667 (2002).  Requires anyone planning to sue a state agency to notify the agency 30 days before filing in court.  Requires an agency defendant to alert the Senate President and the House Speaker.  The purpose of S.B.667 is to avoid the kind of settlements that occurred previously in the Recht School and the Hartley cases.  In those cases, agencies settled without aggressively defending the state's interests, leaving the Legislature to foot the costs of the settlements by rebuilding schools and revamping the mental health system.

Opportunity to Cure: SB 456 (2005). Provides that no action may be brought until the consumer has informed the seller or lessor in writing and by certified mail of the alleged violation and provided the seller or lessor 20 days from receipt of the notice of violation to make a cure    offer.  The consumer shall have 10 days from receipt of the cure offer to accept       the cure offer or it is deemed refused and withdrawn.  If a cure offer is accepted, the seller or lessor shall have 10 days to begin effectuating the agreed upon cure and such must be completed within a reasonable time.  Any applicable statute of limitations shall be tolled for the 20-day period or for the period of time the effectuation of the cure offer is being performed, whichever is longer.  Nothing in this section shall be construed to prevent a consumer that has accepted a cure offer from bringing a civil action against a seller or lessor for failing to timely effect such cure offer.  Where an action is brought, it shall be a complete defense that a cure offer was made, accepted and the agreed upon cure was performed. If the finder of fact determines that the cure offer was accepted and the agreed upon cure performed, the seller or lessor shall be entitled to reasonable attorney's fees    and costs attendant to defending the action.

No cure offer shall be admissible in any proceeding unless the cure offer is delivered by a seller or lessor to the person claiming loss or to any attorney    representing such person prior to the filing of the seller or lessee's initial responsive pleading in such proceeding. If the cure offer is timely delivered by the seller or lessor, then the seller or lessee may introduce the cure offer into evidence at trial. The seller or lessor shall not be liable for such person's attorney's fees and court costs incurred following delivery of the cure offer unless the actual damages found to have been sustained and awarded, without consideration of attorney's fees and court costs, exceed the value of the cure offer.

Pre and Post Judgment Interest Rate Reform: S.B. 576 (2006).  Establishes that the rate for pre-and post-judgment interest may not exceed 11 percent per year or by less than 7 percent per year.

Prisoner Lawsuit Reform: SB 109 (2000).  Prohibits an inmate from filing a lawsuit until all administrative remedies against the facility have been exhausted.  Allows the facility sixty days to complete these remedies.  Permits certain court proceedings to occur at the inmate’s place of incarceration by telephone or video conference. Requires an inmate to pay for all court filing fees.  Allows time earned for good behavior to be forfeited upon finding that an inmate filed a frivolous lawsuit.  Requires any award to an inmate to be paid to outstanding court-ordered payments pending against the inmate. 

Venue Reform: SB 213 (2003).  Sets stricter parameters for non-residents to establish venue in state courts by specifying that a substantial portion of the cause of action had to have occurred in the state.  In addition, each plaintiff has to establish venue independently.

Workers’ Compensation Reform: SB 744 (2005). Strengthens requirements necessary for an employee to prove injury as a results of the employer’s “deliberate intentions” under West Virginia Code §23-4-2, which preserves an action where the employee is injured through the deliberate intention of the employer (under West Virginia Code §23-2-6, employers in good standing with the Workers’ Compensation fund are immune from suits by injured workers, except as provided under §23-4-2).  The five part test for proof of deliberate intention in §23-4-2(d) was strengthened by doing the following: (1) made clear that §23-4-2 governs actions by employees against their employers arising from workplace injuries, whether a workers’ compensation claim was filed or not.  Section §23-4-2(c) is amended to reflect that it applies whether a claim is filed or not, and §23-4-2(d)(2)(E) reflects that claims must satisfy the statutory requirements of compensability whether a claim is filed or not; (2) the second of the five part test, §23-4-2(d)(2)(B), is amended to require actual knowledge before the injury of the specific unsafe working condition and high degree of risk.  This replaces the prior language of “subjective realization and appreciation.”; (3) the third element, which encompasses violation of “commonly accepted and well-      known safety standard within the industry or business of the employer,” now requires proof “by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business.”; (4) subsection (D) contains a grammatical change that retains the requirement of intentional exposure; and (5) section §23-4-2(d)(2) is corrected to make reference to the immunity provision in §23-2-6, which was inadvertently omitted when the statute was amended.