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2016 West Virginia Legislative Update

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Senate Bill 7 - Prohibiting Recovery of Damages for Certain Wrongful Conduct

Senate Bill 7 is designed to limit a plaintiff's recovery of damages for wrongful conduct when the conduct is related in whole or in part to the plaintiff's commission or attempted commission of an illegal or immoral act.

The bill was drafted to overrule the decision of the Supreme Court of Appeals in Tug Valley Pharmacy v. Mingo County, 773 S.E.2d 627 (2015), which permitted persons who had engaged in criminal conduct to recover against those who prescribed and dispensed certain controlled substances. The proposed bill prohibits plaintiffs from recovering for damages as a result of negligence or gross negligence where the damages arose out of the plaintiff's commission or attempted commission of an illegal or immoral act. An illegal or immoral act or transaction includes the commission of a felony, the commission of a misdemeanor crime of violence or a violation of the Uniform Controlled Substances Act. In order to prove this defense, the defendant must establish that the participant has been convicted of the illegal or immoral act or transaction, either by conviction, a guilty plea or a plea of no contest, or proof of the attempted commission by a preponderance of the evidence.

Senate Bill 9 - Creating an Intermediate Court of Appeals

Senate Bill 9 proposes the creation of an Intermediate Court of Appeals. As proposed, the Court would consist of a Northern and a Southern District, each with three judges. All judges would initially be appointed by the governor and would be elected in staggered 10 year terms thereafter. The Court would use the offices and Clerk of the West Virginia Supreme Court of Appeals and would hear matters transferred to it by the West Virginia Supreme Court of Appeals. The court would confirm its rulings in written decisions, which would have presidential effect unless stated by the court to be per curiam or unpublished.

Senate Bill 15 - Learned Intermediary Doctrine

Senate Bill 15 proposes adopting the learned intermediary doctrine as a defense in civil actions for failure to warn. The purpose of the bill, which would be incorporated into 55-7-30, was to adopt and codify the learned intermediary doctrine as a defense to civil actions against a manufacturer or seller of a prescription drug based upon inadequate warnings or instructions.

Senate Bill 29 - Tolling of Statute of Limitations re: Third-Party Complaints

Senate Bill 29 provides for the tolling of the statute of limitations for instituting third-party complaints in connection with pending civil actions. Specifically, it provides that any defending party who wishes to bring a third-party complaint has 180 days from the date of service on that party or the time remaining for the applicable statute of limitations in which to bring a third-party complaint, whichever is longer. In addition, any new party brought into the litigation shall also have the benefit of a 180 day period in which to institute any additional third-party complaint of its own.

Senate Bill 295 - Abolishment of Tort of Outrage

Senate Bill 295 abolishes the tort of outrage. The proposed bill provides that, to the extent that the tort of outrage is separate from the tort of intentional infliction of emotional distress, the tort is abolished.

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