If It Ain’t Broke, Don’t Fix It

Regular readers of this column are probably quite familiar with Kanawha County and its seat, Charleston, West Virginia. For those who are new to these web pages and the issues we cover, Kanawha County is a place that corporations like to refer to as a “judicial hellhole”–a jurisdiction in which courts more often find in favor of the plaintiffs in injury lawsuits against negligent manufacturers and employers. Unfortunately, there have been substantial numbers of people–both laypersons and legal professionals–who have been abusing the system over the past several years. While this number is likely not as high as corporate-friendly members of state and federal legislatures would have us believe, such abuse has consumed time and resources for the benefit of people who are not ill, taking them away or making them unavailable for those who are. This is the basic official argument in favor of “tort reform”–to halt such abuses. Recently, the West Virginia legislature has seriously discussed ways to shield companies from asbestos liability, unless there is solid evidence of the plaintiff’s illness.

Not so fast, says Andrew MacQueen, who spent twenty-two years as a circuit judge for Kanawha County prior to his retirement seven years ago. During that time, Judge MacQueen heard thousands of asbestos cases, and is considered an expert on such issues. Changing the way West Virginia courts deal with asbestos claims would not only be a mistake, says MacQueen, but is unnecessary. He points out that …for such a small state, for a number of reasons, West Virginia used an inordinate amount of asbestos-containing products.” Judge MacQueen developed a plan that for several years has been used to deal effectively with the large number of asbestos claims filed in West Virginia. He believes that changes proposed by the state legislature would threaten this plan, which even defendant companies and their attorneys have acknowledged as a fair one.

Not surprisingly, the insurance industry and the West Virginia Chamber of Commerce are the main lobbyists pushing for the changes to the law. WV state senator Ron Stollings (D-Boone Co.), who is a physician, claims such reform is necessary, referring to a recently published libertarian manifesto entitled Unleashing Capitalism by an economics professor at West Virginia University. The author, Russ Sobel, writes that an unfettered, unregulated, free market would provide solutions to the problems of asbestos litigation. In response, MacQueen cited two of Sobel’s colleagues in the Political Science Department, who find no validity in the book’s thesis as applied to civil actions in the state. According to MacQueen, Sobel’s work also portrays his work as a jurist “unfairly and inaccurately.” He remarked: “I’d like a half-hour to cross examine Professor Sobel.”