Legislation & Litigation

West Virginia Still Ripe for Asbestos-Related Claims

Written By:
Nov 16, 2011
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Written By: Tim Povtak,
November 16, 2011

West Virginia is known as the Mountain State, well-recognized for its outdoor recreation and natural beauty, covered with forests and resting upon one of the nation’s richest reserves of coal.

It also is fertile ground for asbestos litigation.

With approximately 1.8 million residents, West Virginia is only the 38th most-populous state, but it continues to produce more than its share of well-documented, asbestos-related lawsuits, annually ranking among America’s top 10.

The reasons are varied. There are plenty of the blue-collar professions throughout the state that are known as past havens for asbestos exposure — mines, power plants, oil refineries, railroads, steel mills and factories. Much of the state’s commercial and residential construction is older, too, completed before asbestos was regulated so closely.

History shows West Virginia having plaintiff-friendly courts and sympathetic juries. There is no cap on punitive damages in West Virginia asbestos cases. And unlike other states, West Virginia has rejected efforts to discourage out-of-state residents from filing.

An exposure to asbestos can lead to serious medical conditions, including mesothelioma cancer.

Kanawha County Circuit Court in West Virginia is now a center for thousands of asbestos lawsuits. Here is a recent sampling from the West Virginia Record:

  • Earlier this month, Patricia Bowling from Greenup, Kentucky, sued 105 companies whom she believes exposed her late husband to the asbestos that caused the esophageal cancer that killed him in 2010.
  • In September, ironworker and coal miner Delbert Russell of Mason, West Virginia, filed a claim against 123 companies he said were responsible for his exposure to asbestos covering 45 years of employment, resulting in his diagnosis of mesothelioma.
  • In August, Paul Feazell of a Charleston, West Virginia, claimed against 73 companies were responsible for the lung cancer death of a family member who was exposed to asbestos materials.
  • In July, a woman from Sistersville, West Virginia — Ruth Smith — sued 60 companies that she said exposed her to asbestos during her husband’s employment of 40 years with PPG Industries. Although she smoked for 30 years, she quit the habit 40 years before she was diagnosed with mesothelioma in May.
  • In June, a couple from Kentucky (Edward and Helen Reed) sued 135 companies they said are responsible for the Edward Reed’s mesothelioma. Although Reed smoked for more than 20 years, he quit smoking in the ’70s. The defendants failed to warn him of the dangers of asbestos where he worked, the couple alleges.

West Virginia A ‘Judicial Hellhole’

West Virginia cases are typical of the trend in recent years: one plaintiff vs. a large number of defendants. This is in contrast to a decade ago when asbestos litigation was typically hundreds of plaintiffs targeting one major manufacturer.

The American Tort Reform Foundation, which traditionally works against individuals and lobbies for big business, put West Virginia on its annual Top Five list of “Judicial Hellholes” every year since it started in 2002, a distinction that accentuates its popularity with asbestos litigants.

West Virginia is No. 3 in the latest rankings, for 2010-11. The state No. 2 for 2009-10 and No. 1 on the 2008-09 list.

West Virginia also was one of six states — joining California, Illinois, New York, Pennsylvania and Texas, all considerably more populous — selected for a recent Rand Corporation study of the relationship between asbestos trusts and the U.S. tort system. The study examined how trust payments affected total plaintiff compensation in asbestos cases.

According to the latest Government Accountable Office study, 60 personal injury asbestos trusts hold $37 billion in combined assets. They operate on behalf of more than 100 companies that filed for bankruptcy reorganization. Many of the companies did at least some business in the industrial sector of West Virginia, making them responsible there.

Although there were no current studies available comparing the number of asbestos cases from state to state, a previous study by Rand Corporation listed West Virginia as one of the five states responsible for two-thirds of all asbestos litigation in America. It is home to two of America’s asbestos-contaminated Superfund sites.

West Virginia created a Mass Litigation Panel to handle asbestos personal injury lawsuits and a case consolidation process, which streamlines the litigation process, moving them quicker through the system. All cases in the state now are referred to the Circuit Court in Kanawha County and require a Plaintiff Fact Sheet that details a significant amount of personal information.

That doesn’t mean everything has gone smoothly for asbestos litigants in recent years. Although West Virginia state courts regularly rank among the most litigious in America, more than 1,400 asbestos claims filed by attorney Robert Pierce against CSX Transportation were dismissed in 2010. A reinstated fraud case against Pierce is pending.

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