Center for America

State Tort Law Profile

State List

 

West Virginia

Last updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Limited

Joint liability is abolished for defendants 30% or less at fault. In such situations defendants pay only percentage of fault as determined by the jury, provided that if a claimant has not been paid after 6 months of the judgment, defendants 10% or more responsible are subject to reallocation of uncollected amount. Defendants less than 10% at fault or whose fault is equal to or less than the claimant’s percentage of fault are not subject to reallocation. 

W. Va. Code § 55-7-24.

In cases involving medical professional liability: “To determine the amount of judgment to be entered against each defendant, the court shall first, after adjusting the verdict . . . , reduce the adjusted verdict by the amount of any pre-verdict settlement arising out of the same medical injury.  The court shall  then, with regard to each defendant, multiply the total amount of damages remaining, with interest, by the percentage of fault attributed to each defendant by the trier of fact.  The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum recoverable against the defendant.”

W. Va. Code § 55-7B-9(d).

Non-Economic Damages

Limited

See above.

 

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Louk v. Isuzu Motors, Inc., 479 S.E.2d 911, 927 (W. Va. 1996); Bowman v. Barnes, 282 S.E.2d 613 (W. Va. 1981).

Market Share Liability

Undecided

 

Defenses

Comparative Negligence

Yes, modified comparative negligence.

A plaintiff may not recover if his or her negligence exceeds or equals the combined negligence of the other parties.

Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979).

 

Assumption of Risk

No

Subsumed into comparative negligence.  

Farmer v. Knight, 536 S.E.2d 140 (W. Va. 2000).  

The defense of “comparative assumption of risk” is available in product liability actions where the plaintiff continued to use the product with full appreciation of the defective condition and the plaintiff's degree of fault equals or exceeds the fault of the other parties.  

In re State Public Bldg. Asbestos Litig., 454 S.E.2d 413 (W. Va. 1994), cert. denied, 515 U.S. 1160 (1995); King v. Kayak Mfg. Corp., 387 S.E.2d 511 (W. Va. 1989).

 

Product Misuse

Yes

The defense of abnormal use is available in a product liability action.

Star Furn. Co. v. Palaski Furn. Co., 297 S.E.2d 854 (W. Va. 1982); Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979).

 

Compliance With Government Standards

No

Compliance with government standards may serve as evidence of due care, but does not constitute due care per se, nor does it create a presumption of due care.

Failure to comply with a statute or regulation constitutes prima facie negligence if an injury proximately results and the noncompliance is the type that the statute or regulation was intended to prevent.  

Miller v. Warren, 390 S.E.2d 207 (W. Va. 1990).

 

Statute of Repose

Applicable to real property improvements only

No action in contract or tort may be brought more than 10 years after the performance and furnishing of a service or construction in real property improvement project.  

W. Va. Code 55-2-6a; see also Gibson v. West Virginia Dept. of Hwys., 406 S.E.2d 440 (W. Va. 1991) (declaring statute constitutional).

 

Government Contractor Defense

Undecided in product liability cases

The West Virginia Supreme Court of Appeals has ruled that  state immunity from incidental injuries necessarily involved in the performance of a contract extends to government contractors, but has not ruled on the issue in a product liability case.

Hose v. Berkley Planning Comm'n, 460 S.E.2d 761 (W. Va. 1995).

 

McLawsuits Permitted?

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No restriction

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

Is there a statutory limit on non-economic damages?

Yes, in medical malpractice actions only

Noneconomic damages in medical malpractice actions are limited to $250,000 per occurrence.

Noneconomic damages of up to $500,000 may be awarded in cases involving (1) wrongful death, (2) permanent and substantial physical deformity, loss of use of limb or loss of a bodily organ system, or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities.  

The limit is adjusted annually for inflation. 

W. Va. Code § 55-7B-8.

Prior statutory caps on noneconomic damages awards in medical malpractice actions were upheld in Robinson v. Charleston Area Med. Ctr., Inc., 414 S.E.2d 877 (W. Va. 1991), and Estate of Ghaphery, 522 S.E.2d 406 (W. Va. 2001).

 

Is recovery for medical monitoring permitted without physical injury?

Yes

Bower v. Westinghouse Corp., 522 S.E.2d 424 (W. Va. 1999).

Punitive Damages 

Is there a statutory limit?

No

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

 

Does the state receive a portion of the punitive damage award?

No

 

What standard is used?

Preponderance of the evidence

 

Procedures 

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

Not reported

If a defendant is a corporation, venue is proper where the corporation’s principal office is, or if the principal office is not in West Virginia, where the corporation does business.  If a corporation is organized under the laws of West Virginia, but has its principal office elsewhere, venue is proper in the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located has jurisdiction over actions against the corporation.

W. Va. Code § 56-1-1.

 

In 2007, West Virginia adopted the doctrine of forum non conveniens by statute.

W. Va. Code § 56-1-1a.

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

No

Interlocutory review of an order granting class certification is only available by writ of prohibition.

McFoy v. Amergas, Inc., 295 S.E.2d 16 (W. Va. 1982).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes

The bond for a signatory to the tobacco Master Settlement Agreement may not exceed $100 million for compensatory damages and $100 million for punitive damages.

W. Va. Code § 4-11A-4.

Evidence 

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes*

*West Virginia adopted the Daubert analysis in Wilt v. Buracker, 443, S.E.2d 196 (W. Va. 1993), cert. denied, 511 U.S. 1129 (1994); see also Mayhorn v. Logan Med. Found., 454 S.E.2d 87 (W. Va. 1994).

The Court clarified the Daubert/Wilt analysis and held that it only applies if the expert testimony deals with scientific knowledge in Gentry v. Mangum, 466 S.E.2d 171, 170-82 (W. Va. 1995); see also State v. Henning, 569 S.E.2d 204 (W. Va. 2002).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Causation is required

Individual reliance - uncertain

What is the level of scienter (intent) required of a defendant?

Intent that others rely is required for some types of claims, but not others.

W. Va. Code § 46A-6-102(7).

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

Yes

Greater of actual damages or $200.

W. Va. Code § 46A-6-106(a).

In re West Virginia Rezulin Litig. v. Hutchinson, 585 S.E.2d 52, 74-75 (W. Va. 2003) (holding that the statutory requirement that a plaintiff show an "ascertainable loss" does not require a showing of actual damages, but that plaintiffs need only allege they received a product that was different or inferior to that which they believed they purchased).

 

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Does every prevailing plaintiff receive attorneys' fees and costs?

No

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

No

The statute does not specifically exempt acts or transactions in compliance with the regulations of the FTC or any administrative agency. It does, however, include a statement indicating that construction of the Act should be guided the legal interpretations of the FTC and courts' interpretations of the FTC Act.

"It is the intent of the legislature that, in construing this article, the courts be guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters. To this end, this article shall be liberally construed so that its beneficial purposes may be served."

W. Va. Code § 46A-6-101.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

W. Va. Code § 52-1-10. 

Are the grounds for obtaining an excuse from service closely defined?

No

A person may be excused from jury upon a showing of “undue hardship, extreme inconvenience, or public necessity.”

W. Va. Code § 52-1-11(b). 

 

May jurors automatically postpone and reschedule service?

No

Is a juror's employment and leave time adequately protected during service?

No

When an employee receives a summons, he or she must show it to an immediate superior the next day.  An employer must excuse an employee from work to order to respond to a juror summons.  An employer may not discriminate against an employee because he or she is summoned to jury service, and can be fined between $100. and $500. for such discrimination.  W. Va. Code § 52-3-1.

The law does not specifically address whether an employer can require an employee to use annual, vacation, or sick leave time for the period in which he or she serves. 

 

Is there a limit on the frequency of jury service?

Yes

Jury service is limited to once every two years.

W. Va. Code § 52-1-8(4). 

In any two-year period a person may not be required: (1) to serve or attend court for prospective service as a juror more than thirty court days, except if necessary to complete service in a particular case; (2) to serve on more than one grand jury; (3) to serve as both a grand and petit juror; or (4) to serve as a petit juror at more than one term of court.

W. Va. Code § 52-1-23. 

 

Is the length of service limited to no more than one day or one trial?

No

See above.

Juror per diem

$40, plus mileage

Set by West Virginia Supreme Court of Appeals.  See also W. Va. Code § 52-1-17.

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

Yes

A person who fails to respond to a summons may be held in civil contempt of court and fined up to $1,000. 

W. Va. Code §§ 52-1-7(c), 52-1-24.

Problem Jurisdictions 

Entire state

 

West Virginia has consistently been named by the American Tort Reform Association as the only statewide Judicial Hellhole.

 

 

This analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com Original material © 2009 Center for America.