CHARLESTON, W.Va. — Three eastern railroads will file suit to stop West Virginia’s “mass litigation” process, which unfairly benefits out-of-state plaintiffs and their attorneys at the expense of the state’s citizens and businesses.
CSX Transportation, Norfolk Southern Railway and Conrail, joined by American Premier Underwriters (formerly Penn Central), will file suit in U.S. District Court for the Southern District of West Virginia against the justices of the Supreme Court of Appeals of West Virginia. The railroads seek to invalidate West Virginia Trial Court Rule (TCR) 26.01, which in 1999 established a “Mass Litigation Panel and Procedure” to consolidate asbestos- related civil cases against railroads and other parties. The railroads said TCR 26.01 deprives them of due process of law provided for in the Fourteenth Amendment to the U.S. Constitution, because in lumping together plaintiffs who worked at numerous different locations, in various jobs, during different times, with diverse mitigating factors and alleged exposures and injuries, the process will deprive the defendants of a fair trial.
Consolidation of cases, in effect, pressures railroads into settling them, rather than proceeding to trial and risking enormous verdicts skewed toward the most seriously injured plaintiffs while less injured (and even uninjured) plaintiffs obtain windfall verdicts. Further, West Virginia effectively provides no right to appeal such verdicts; the only appeals court in the state generally refuses to consider a railroad’s appeal of a verdict, the railroads said.
“TCR 26.01 is unfair and unworkable for the courts, for the railroads and for the taxpayers of West Virginia,” said Fred Adkins, attorney for the railroads. “It invites frivolous claims, misuses judicial resources, clogs local trial courts and robs the state of filing fees.” Adkins described the appeals court’s July 2002 date for resolution of all asbestos cases as “unnecessary and coercive,” since most of the cases were filed less than two years ago.
Of the 33,100 civil lawsuits of all types pending in West Virginia courts, more than 25,000 or 75 percent are asbestos-related. Of the 9,000 asbestos cases pending nationwide against the three railroads, 5,150 or 57 percent are before West Virginia courts. In those 5,150 cases, 4,440 plaintiffs are people who do not work, live or pay taxes in West Virginia. More than 4,800 of the plaintiffs in these cases are represented by a single Pennsylvania law firm.
“TCR 26.01 is part of a system that promotes forum-shopping — filing in the court that the plaintiffs’ lawyers think provides procedures and rulings that most favor them,” said Adkins. “Citizens and attorneys of other states can prosecute their claims in West Virginia, taking any money they receive in settlement or judgment back to their home states, leaving West Virginians standing in line to use their own court system.”
Carter G. Phillips, also representing the railroads, concluded, “West Virginia has allowed itself to be abused by out-of-state plaintiffs’ lawyers, which is bad enough, but its solution — to coerce defendants to settle without a trial — violates fundamental notions of fairness.
“In the long run, potential defendants will shun doing business in West Virginia. Physicians already have responded to the state’s system of justice by fleeing, and other businesses will not be far behind.”