For the past decade, West Virginia ranked in the top five among U.S. states where asbestos related lawsuits are filed, and lawmakers there have done little to change that trend. In fact, even though there is new legislation tightening up the area of mass torts, West Virginia's overall status has improved because other top states enacted significantly tougher filing limits.
Between 1998 and 2000, West Virginia and four other states accounted for two-thirds of all U.S. asbestos case filings. As of 2006, the state processed an estimated 33,000 asbestos claims. By 2008, West Virginia developed a reputation for having plaintiff-friendly courts and juries. As more and more people become aware of mesothelioma cancer and their rights to sue because of the disease, West Virginia continues to be a popular jurisdiction for new asbestos case filings.
Occupational asbestos exposure poses considerable health risks in West Virginia. Exposure to asbestos dust around coal mining areas and mining equipment can lead to serious illnesses. Although the state is best known for its coal mines, West Virginia’s power plants, oil refineries, railroads, steel mills and other industries also have high incidences of asbestos use. It is no surprise that Kanawha County, center of industry in the state, is also center stage for thousands of asbestos lawsuits.
More than 25 percent of West Virginia’s asbestos-related deaths occurred in Kanawha County. An analysis of government data shows there were at least 594 asbestos-related deaths in the state by 2001. The actual number is almost certainly higher because asbestos mortality data dates back only to 1979 and does not include mesothelioma deaths that occurred before the government began tracking such deaths in 1999. That total does not include asbestos-related lung and gastrointestinal cancers.
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During the past decade, the West Virginia Legislature and state courts established specific rules and procedures to manage the large number of asbestos claims. Experienced mesothelioma attorneys are familiar with those rules and the West Virginia case process, including the following:
West Virginia’s Supreme Court of Appeals has established a special panel to handle mass litigation cases such as asbestos personal injury lawsuits. Asbestos cases filed in West Virginia are currently referred to the Circuit Court of Kanawha County.
Procedures for filing asbestos cases are established in the MLP’s Asbestos Case Management Order. The MLP requires a "Plaintiff Fact Sheet" from each plaintiff in a pending asbestos personal injury case. Plaintiffs must provide a significant amount of personal information on the Fact Sheet, including work history, smoking history, medical providers and any benefits (e.g., workers compensation and disability).
Case consolidation is a process that courts use to group similar claims for processing. Courts typically use consolidation as a tool to reduce multiple filings, streamline case scheduling and expedite trials. West Virginia judges have supported mass consolidation of asbestos claims for many years.
In 2002, the Kanawha County Circuit Court consolidated 7715 claims. (Adkins v. Mobil Oil Corp., No. 01-50987, Kanawha Co. Cir. Ct., W.Va.)
The court consolidated over 9,000 claims in 1994. In re Asbestos Cases I-IV, Civ. Act. No. 92-C-8888 et al. (Kanawha Co. Cir. Ct., W.Va.).
Under the current MLP Asbestos Case Management Order, plaintiffs’ attorneys are directed to designate “trial groups” of twenty cases. The court schedules trials for three of these groups each year.
Asbestos cases are also divided into categories based on the severity of the plaintiffs’ illnesses. The categories are used to group cases for scheduling.
Category I Cases include living plaintiffs who have been diagnosed with malignant mesothelioma or asbestos-related lung cancer. Each plaintiff must provide a report from a board-certified pathologist. The report must state that the injury was proximately caused by asbestos exposure.
Category I plaintiffs receive first priority in any trial groups created under the Case Management Order. Any Category I plaintiff who dies before being deposed is moved to Category II.
Category II Cases include deceased plaintiffs who were diagnosed with malignant mesothelioma or asbestos-related lung cancer. A report from a board-certified pathologist is also required for each of these plaintiffs.
Category III Cases include plaintiffs who have been diagnosed with non-malignant, asbestos-related diseases (e.g., asbestosis).
Attorneys for each trial group may ask the court to replace two group members with “hardship cases.” These cases include instances where the plaintiff cannot afford critical medical care or basic living needs. Hardship cases also include plaintiffs who have been diagnosed with mesothelioma.
Hardship status is not available if plaintiffs’ lawyers knew of the circumstances causing the hardship when they first created the trial group. Any requests to substitute hardship cases must be made within 90 days after the trial group is formed. Requests must be in writing and defendants receive an opportunity to object to a proposed substitution.
West Virginia law provides for joint and several liability. This means that a plaintiff who wins a judgment may generally recover the entire amount from any one of the liable defendants. Joint and several liability applies to both economic damages (e.g., medical expenses) and non-economic damages (e.g., pain and suffering).
Experienced mesothelioma attorneys carefully review their client’s circumstances to determine which companies should be named as defendants.
Punitive damages awards are possible under West Virginia law. Unlike some states, West Virginia does not place a statutory cap on punitive damages in asbestos cases.
Punitive damages are sometimes awarded to punish losing defendants for malicious conduct or to deter them from causing more injuries.
Punitive damages were also awarded in a case involving 10,000 legal claims in 1994. In re Asbestos Cases I-IV, Civ. Act. No. 92-C-8888 et al. (Kanawha Co. Cir. Ct., W.Va.).
In 1990, a jury awarded $40,000 in punitive damages to the estate of a man who died from an asbestos-related disease. Davis v. Celotex, 420 S.E.2d 557 (1992)
Each case differs and there is no guarantee that a jury will award punitive or any other kind of damages. It is best to talk to a mesothelioma attorney about your options for compensation.
The MLP’s Case Management Order requires that plaintiffs disclose any claims that may exist against bankruptcy trusts no later than 120 days before trial. The disclosure must include information about diagnosis and work history. Plaintiffs or their counsel must include a statement that the disclosure is based on “good faith investigation” of all potential asbestos trust claims.
Information about trust claims is shared with defendants. Courts may require claimants to disclose the amounts they receive or expect to receive from bankruptcy trusts. Defendants are entitled to deduct these amounts from verdicts as “set-offs.”
Proposed legislation introduced in 2011 would also allow defendants who settle asbestos claims to receive credit for trust payments.
Joe Lahav is a lawyer and legal advisor at The Mesothelioma Center. He graduated with honors from the University of Florida College of Law in 2000, and he's licensed to practice in Washington, D.C., and Florida. Joe lost his mother to cancer, and he understands the emotional toll mesothelioma can have on families. Read More