January 19, 2021

Volume XI, Number 19


January 18, 2021

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West Virginia Legislation Impacts Asbestos Litigation

The West Virginia Legislature recently adjourned, and several important bills, which will directly affect asbestos litigation in West Virginia, were passed by both Chambers and sent to Governor Tomblin for his signature. These bills include SB 411, HB 2002, SB 13, and SB 421, with only SB 421 remaining unsigned.  Below is a brief overview of these bills and how they may impact asbestos litigation.

  • SB 411: Asbestos Bankruptcy Trust Claims Transparency Act (effective June 9, 2015).

Governor Tomblin has signed SB 411 into law, thereby establishing legal standards and procedures for the handling of certain asbestos claims. The Act requires the disclosure of current and inchoate asbestos bankruptcy trust claims. The Act provides that the filing and/or payment of these trust claims may be considered as relevant and admissible evidence to support a jury finding that the plaintiff was exposed to the products covered by the trust, and such exposure may be a substantial factor in the causation of a plaintiff’s injury.

  • HB 2002: The Modified Comparative Fault Standard (effective May 25, 2015).

Governor Tomblin has signed HB 2002 into law thereby abolishing joint and several liability in West Virginia (with some exceptions) and setting forth the new comparative fault standard to be used in computing actions for damages.  The new “modified comparative fault standard” allocates damages to each responsible defendant in direct proportion to that defendant’s percentage of fault.  Accordingly, §55-7-13d provides that juries may consider the fault of all defendants who contributed to a plaintiff’s injuries regardless of whether the defendant was named in the suit.

Despite this language, HB 2002 includes exceptions and thus, joint and several liability remains in some instances.  One of these instances occurs when defendants consciously and deliberately conspire for a common plan or design to commit a tortious act or omission.  Another instance can arise if, within one year after a final judgment is rendered, a plaintiff who is unable to collect from a defendant moves the court to reallocate this uncollectable amount against the other liable parties.  Still other exceptions to the modified comparative fault standard exist, but the other exceptions are likely inapplicable to asbestos litigation.

  • SB 13: Open and Obvious Doctrine is Reinstated (effective February 18, 2015).

Governor Tomblin has signed SB 13 into law thereby reinstating the “open and obvious doctrine,” which prior to the West Virginia’s recent decision in Hersh v. E-T Enterprises Ltd., 232 W. Va. 305, 752 S.E.2d 336 (2013), had been a well-settled and longstanding doctrine. The doctrine provides a defense to premise defendants when plaintiffs injure themselves due to a hazard on the premise defendant’s property if the hazard is “open and obvious.” For another state’s take on the matter, see Frost v. Dayton Power & Light Co., 138 Ohio App. 3d 182, 740 N.E.2d 734 (2000).

  • SB 421: Limitation on Punitive Damages (effective June 8, 2015).

This bill has passed both houses and is expected to be signed into law by Governor Tomblin. This bill would modify current common law standards in West Virginia, and limit punitive damage awards to four times compensatory damages or $500,000, whichever is greater.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume V, Number 92



About this Author

Jim Mulhall, Litigation Attorney, Steptoe Johnson Law FIrm

Jim Mulhall is the leader of the firm's Products Liability Practice Group and Toxic Torts Team.  Mr. Mulhall concentrates his practice in the areas of asbestos, product liability, toxic torts, and mass tort litigation.  He is the co-chair of the International Dispute Resolution Practice Group in TerraLex.

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