West Virginia Legislature Looks to Address COVID-19 Liability

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Trial lawyers’ spending on covid ads last year surpassed $260,000

As West Virginia legislators prepare to send critical COVID-19 legislation to the governor’s desk, new data from the American Tort Reform Association (ATRA) demonstrates the need to prioritize liability protection.

From March through December last year, plaintiffs’ lawyers and aggregators spent more than $260,000 to air more than 3,300 legal services TV ads mentioning COVID-19 or coronavirus in West Virginia.

“It is as critical as ever for West Virginia to pass a legislative solution to support health care providers, small businesses, and their employees who have been on the frontlines, responding to the pandemic, as they’re targeted with lawsuits” ATRA President Tiger Joyce said.

S.B. 277, the Creating COVID-19 Jobs Protection Act sponsored by Senate President Craig Blair (R-Martinsburg), addresses liability claims stemming from the COVID-19 pandemic with respect to exposure claims, medical liability lawsuits and products liability actions. The House passed the bill today on a 76-24 vote and is expected to go to Gov. Jim Justice for signature soon if the Senate approves amendments made in the House. The Senate passed the original bill on February 19 by a 25-9 vote.

“It is encouraging to see West Virginia’s legislature work toward enacting reasonable liability protections for local businesses, health care providers and others to protect them from entrepreneurial trial attorneys who seek to profit from the pandemic,” Joyce said. “I look forward to seeing Gov. Justice’s signature on this important piece of legislation to protect West Virginians.”

Excessive tort costs in West Virginia resulted in a loss of 5,600 jobs and a “tort tax” of $307 per person according to a 2020 study. West Virginia was previously named a “Judicial Hellhole®” by the American Tort Reform Foundation but in its most recent report is included in the “Watch List.”

To date, 24 states and the District of Columbia have enacted some level of COVID-19 liability protections. 

“While a national solution would create a more predictable system for all and would ease the burden on companies that operate across state lines, the onus has fallen on the states,” Joyce said.

Recent polling reveals broad bipartisan support for elected officials to respond to pandemic-related issues – rather than trial lawyers filing lawsuits to address such concerns. Key findings show that 74% of respondents believe that the government should support small businesses affected by COVID-19 with grants or loans, versus 6% who said lawyers should help small businesses pursue legal claims instead.

“The data shows that the public is tired of trial lawyers’ schemes,” Joyce said. “When it comes to COVID-19 recovery efforts, the evidence is clear – a majority of Americans want their elected officials – not trial lawyers – to handle COVID-19 relief and aid.”

Despite the lack of public support for COVID-19 litigation, law firms marketed their services aggressively. Moreover, an analysis by the Wall Street Journal found that dozens of top law firms received millions in Paycheck Protection Program (PPP) loans. Some firms spent those dollars to increase their advertising, including a U.S. powerhouse personal injury law firm, Morgan & Morgan, which has a Charleston office. ATRA’s report found that Morgan & Morgan was the top sponsor nationwide for COVID-19 legal services TV ads from March through December, airing approximately 70,000 ads at a cost of $10.5 million.

“This money was meant to help struggling businesses cover operating expenses including rent and employee salaries and benefits, but at least some of the money was used by law firms to recruit potential plaintiffs for future litigation,” Joyce said. “Unfortunately, it’s healthcare and frontline workers, small businesses and employees, who will ultimately pay the price when astronomical litigation costs force them to close or raise prices, simply to keep up.”

Nationally, 176,053 advertisements for legal services and/or soliciting legal claims mentioning COVID-19 or coronavirus aired in the United States between March and December 2020 at an estimated cost of $34.4 million. When compared with legal services ads soliciting medical device claims, three times as many COVID-19 legal services ads aired. During that same time period, 7,734 lawsuits related to COVID-19 were filed in the U.S.

The full report is available at ATRA.org.

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