Work of Fiction - ATRA's So-Called "Judicial Hellhole" Report Has No Basis in Fact

WHEELING, WV, March 18, 2013

Over the last few weeks, much has been written and said about MTV's new reality show Buckwild and its negative depiction of West Virginia and the people who live here. Everyone from elected officials to business leaders to people you meet on the street are furious about how they believe the program will mislead the country about life in the Mountain State.

I have just one question: Where is this same sustained outrage over the American Tort Reform Association calling our state a "hellhole" for a decade now? Just like this MTV program, ATRA's so-called "Judicial Hellhole" report has no basis in fact. Just as much of this "reality" program is scripted and has multiple takes to ensure that what is filmed is over-the-top enough for its viewers, the Judicial Hellhole "reports" only what the corporate special interests behind it want it to say.

According to the Center for Justice and Democracy's fact sheet, the American Tort Reform Association is a Washington D. C. based organization that was created in 1986 to "represent hundreds of U. S. and foreign corporations in their bid to overhaul civil liability laws at the state and national levels." While ATRA calls its members "the average citizen looking for an end to the threat of being sued," an investigation by Public Citizen Congress Watch found that "ATRA's members are largely Fortune 500 companies with a direct finance stake in restricting lawsuits. Members have included representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries . . . Legal Times also reporters that, 'most of [ATRA's] funding comes from large corporate donors. Insurance firms . . . are each good for $50,000 or $75,000."

In 2002, ATRA launched its now infamous Judicial Hellholes "report." The truth is, however, that it's nothing more than a PR campaign to attack state court systems. The goal of the Hellhole PR campaign is to scare lawmakers into passing "tort reforms" that limit access to the courts-or risk being labeled by ATRA as a "judicial hellhole." Indeed, in her article " Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia," Southern Methodist University Dedman School of Law professor Elizabeth Thornburg writes:

"ATRA's hellhole campaign began in 2002, and falls squarely within this tradition of scaring the public, but with a twist-this time the explicit goal is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA's political goals. The choice is not based on research into the actual conditions in the courts." (West Virginia Law Review, Vol. 110 No. 3)

ATRA's report purports itself to be an analysis of court systems hostile to businesses, but Thornburg also noted in her article that in the ATRA reports, "the stories are embedded in a framework of more general statements about West Virginia's legal system-statements that are the opinions of persons quoted but that appear to be statements of fact. The reports do this by using quotations (unattributed in the text, but identified in the endnotes)-often from the local leaders of ATRA affiliates-characterizing West Virginia's legal system as if they were providing a neutral empirical analysis."

The New York Times criticized the validity of the 2007 report. "The question is whether the report's arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology." In response, ATRA acknowledged that its report was not based on an analysis of the actual facts, admitting, "We have never claimed to be an empirical study." (New York Times, December 24, 2007)

One need look no further than West Virginia to see how the facts just don't add up.

West Virginia's ranking in 2005 was based largely on two lawsuits regarding Teflon cookware that were never even filed in the state. Indeed, even the report's own footnotes listed the states where those lawsuits had been filed-and West Virginia wasn't included. When a reporter pointed out the error, ATRA said that it didn't matter. "While we regret and apologize for the error, this does not affect the ranking of West Virginia as the third worst Judicial Hellhole. The overall pattern is the same, regardless of whether the lawsuit was filed there or not" (Charleston Gazette, December 15, 2005)

West Virginia's ranking gets worse when the state legislature passes the so-called reforms pushed by ATRA and the corporate interests it represents. In 2002, West Virginia wasn't listed in the hellhole report. The state's rankings for the following years were sixth in 2003, fourth in 2004, third in 2005 and first in 2006. In that same time period, the West Virginia Legislature passed significant tort reforms pushed by ATRA including caps on medical malpractice damages, the elimination of third party bad faith, privatization of our state's workers' compensation system, and changes to joint and several liability.

In its 2009 report ATRA claimed that in West Virginia there is no right of appeal, yet every defendant has the right to petition the West Virginia Supreme Court. This same criticism was repeated in the 2010 study, yet in that same 2010 report ATRA hypocritically attacked the West Virginia Supreme Court for accepting an appeal in a medical-malpractice case.

And then there is this year. If there is any doubt that this is the real goal of the campaign, all you need to do is look at this year's report. In it ATRA says that the West Virginia Supreme Court 'can issue fair and reasonable rulings.' It notes that while sometimes corporations win in our courts, sometimes they lose. That's the way that it works in a fair and balanced court. The corporate special interests that fund ATRA don't want that. They will not stop these attacks against our courts until they win 100 percent of the time. Being labeled a 'judicial hellhole' means that our courts are carefully weighing the evidence of each case and making fair decisions-exactly what they should be doing.

The real goal of this campaign is to create two standards-one for billion-dollar corporate special interests and one for the rest of us. When our founding fathers created this country, they envisioned a place where 'all men are created equal,' not a place where you and I are held to one standard while corporations get a free pass."

The courts are starting to stand up and denounce this so-called Hellhole report for what it really is. On April 20, 2011, Illinois Circuit Judge William Mudge issued an order which disclosed that Syngenta Crop Protection Inc., a defendant in a pending water pollution case, and its Chicago public relations firm developed a prejudicial PR campaign based on the Judicial Hellhole report. The judge found that the proposal prepared for Syngenta "outlines a plan to tie the defense of this action into a negative public relations campaign that attacked the Madison County judicial system as a "'judicial hellhole' friendly to frivolous lawsuits" and a "source of 'jackpot justice'" (St. Louis Post-Dispatch, April 21, 2011)

It's time for West Virginia's elected and business leaders to do the same.

To learn more about Bordas & Bordas, please visit our personal injury website at www.bordaslaw.com.