While West Virginia has been “almost heaven” for trial lawyers in the past, the state legislature has worked hard to be known as “almost heaven” for a fair and balanced lawsuit system.
Over the years, lawmakers passed several reforms designed to help turn the state’s reputation from pro-trial lawyer to pro-business, including preventing over-naming in asbestos litigation, COVID-19 liability protections for health care providers and businesses, and creating an intermediate court of appeals.
The latest step to improve the state’s lawsuit climate was SCR 58, which passed the Senate in March but stalled in the West Virginia House. The Senate requested the Joint Committee on Government and Finance study the common law cause of action for public nuisance. A cause of action is a set of facts sufficient to justify suing to obtain money, property, or the enforcement of a legal right against another party. The study would have looked at how the state’s public nuisance law is used and suggest ways to protect it from being abused.
Public nuisance has roots in medieval England and is traditionally limited to claims over issues that interfere with a public right, like access to public roads and waterways. However, plaintiffs’ lawyers have recently tried to expand its use through lawsuits over serious public policy issues, like the opioid crisis and climate change.
Solutions to these issues should come from elected officials, not private lawyers searching for big paydays. A study should be a welcome development for those who want to defend the rule of law and make sure West Virginians are put first, not trial lawyers.
While SCR 58 did not make it through the West Virginia House before the end of the legislative session, there is still an opportunity to revisit it later this spring during interim committee meetings. West Virginia lawmakers have worked hard to improve the state’s lawsuit climate. Studying how to provide clarity to its public nuisance law and how to protect the law from being used to file abusive lawsuits would help keep it on the right path to improving its lawsuit climate.