|
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.
|
