FAMILY TIES IN W.VA. LEGAL SYSTEM RAISE CONCERNS DAVIS, SEGAL DENY RELATIONSHIP INFLUENCES RULINGS

Publication: CHARLESTON DAILY MAIL
Published: 11/15/2002
Page: 5A
Headline: FAMILY TIES IN W.VA. LEGAL SYSTEM RAISE CONCERNS DAVIS, SEGAL DENY RELATIONSHIP INFLUENCES RULINGS
Byline: ROBERT S. GREENBERGER THE WALL STREET JOURNAL

She is a coal miner's daughter who rose to become chief justice of the West Virginia Supreme Court. He was raised on Manhattan's gilded Sutton Place and became a top plaintiffs lawyer.

Robin Jean Davis and Scott Segal met two decades ago at West Virginia University law school, married three years later and became law partners. Davis, now 46 years old, carved out a lucrative niche representing women in family-law disputes before winning the Supreme Court seat, an elected position. Segal, 47, focuses on mega-lawsuits against corporations.

They live in a 20,000-square-foot, $5 million estate in the hills across from Charleston's gold capitol dome, where they hold an annual black-tie Christmas party that has been featured in Southern Living magazine.

Yet their career paths have raised controversy in a state where the average income was $27,982 last year, lower than all but seven other states.

Davis, as a justice, has helped make West Virginia almost heaven for trial lawyers - including her husband. In a U.S. Chamber of Commerce survey of more than 800 companies, West Virginia was cited as the second-worst place, after Mississippi, for companies to be sued.

In July 1999, while Davis was a justice, the state Supreme Court ruled that plaintiffs who claimed possible exposure to toxic substances could collect huge sums from corporate defendants for lifetime medical testing - without having to prove it was likely they ever would get ill from the exposure.

West Virginia's high court didn't invent such "medical monitoring," as it is called, but the ruling was groundbreaking. It permits, for example, lump-sum awards, with no strings on how the money is spent, which also potentially increases how quickly the lawyers involved see their portion of the award.

"The practical effect of this decision is to make almost every West Virginian a potential plaintiff in a medical-monitoring cause of action," complained Justice Elliott Maynard, the lone dissenter in the court's 4-1 ruling.

A few months before the ruling, Segal had become an attorney in an unrelated medical-monitoring lawsuit in West Virginia for people who used fen-phen, a controversial diet-drug cocktail. The state Supreme Court's ruling, which affirmed and expanded medical monitoring, cleared the path for similar suits.

The fen-phen class action eventually was settled for an undisclosed amount and, as is standard practice, Segal's firm, along with others involved, received a piece of the award.

Shortly after the high court endorsed medical-monitoring awards, Segal became involved in a suit seeking such monitoring on behalf of "healthy smokers," those who haven't yet contracted a tobacco-related disease. The lawsuit could include as many as 500,000 West Virginians, and claims could reach $2.7 billion.

Even among Charleston's insular business community, the Davis-Segal connection on medical monitoring raised some eyebrows.

"This creates, at best, an awkward situation and one that causes those who hear about it to do a double take," says Stephen Roberts, president of the West Virginia Chamber of Commerce.

Segal says he finds suggestions that his law firm benefits from his wife's rulings "tremendously offensive," adding that "my wife hands down a lot of opinions I don't agree with."

Davis responds that "I have been very diligent and careful about disqualifying myself from any case involving my husband's law firm." But she says she couldn't do her job if she skipped every case in which her husband might become involved. "There's not a personal-injury case that comes before this court that at some point, some time, couldn't affect my family," she says.

Davis adds that "there was no reason" to recuse herself from the medical-monitoring issue because her husband wasn't involved in the case before her court - though at the time he was an attorney in the fen-phen suit.

Forest Bowman, a retired law professor at West Virginia University law school, who taught legal ethics courses and knew both Segal and Davis when they were law students, says he would have recused himself from the medical-monitoring case "if I had been in her position."

West Virginia's Code of Judicial Conduct states that judges should disqualify themselves from ruling in cases if, among other reasons, their spouse or any other family member "has an economic interest" in the legal matter before the court. Judges themselves decide whether the code requires them to recuse themselves, and although challenges to their decisions may be brought, they are rare, according to Bowman and others.

Family ties between judges and the bar are hardly unusual in West Virginia. One of Davis' colleagues, Justice Warren McGraw, who authored the 1999 medical-monitoring ruling, has a son, Warren R. McGraw II, who is a plaintiffs lawyer. The younger McGraw says he has brought five medical-monitoring lawsuits in West Virginia with claims totaling billions of dollars. And Attorney General Darrell McGraw, Justice McGraw's brother, picked Segal in 1994 as one of several outside counsels to help the state in a national class-action lawsuit against tobacco companies. Segal's share of that payday was $4.5 million.

Segal's family ties to West Virginia go back two generations. His wealthy father, a shirt manufacturer, had factories in Morgantown and traveled frequently to them from New York. Scott Segal often visited the state with his father, and after college in Vermont, headed to West Virginia law school. He arrived one year ahead of Davis. After they were introduced by friends, "I don't think either one of us ever went out with anyone else," she recalls in her soft southern accent.

Davis's road to the top began in rural Van, a tiny town in the state's impoverished southern region, with no stoplights and a population of 150. Her father was a coal miner and her mother a school principal. In 1996, after her successful career as a lawyer, she gave up her practice and was elected to fill a seat on the state's Supreme Court after lending her campaign $216,737.

Segal says he became involved in the fen-phen case sometime in early 1999, just before a state circuit-court judge, Fred Risovich, agreed to accept a medical-monitoring claim in the case. The judge earlier had rejected such a claim. ("It was one the few times I changed my opinion on something," the judge says.)

Judge Risovich's 2000 re-election campaign received contributions from a number of the law firms representing plaintiffs in the medical-monitoring claim. His campaign used some $72,000 in contributions to pay off a loan he had made to his 1992 election.

According to public records in the secretary of state's office, on Aug. 6, 1999, Segal contributed $1,000 to Risovich's campaign, the maximum amount permitted under state law. Davis' parents kicked in $1,000 each as well. Davis says her parents have always been active in politics.

Risovich says that under West Virginia law, contributions to judges go directly to their campaign committee. "We don't know what the sources of the contributions are," he says. In a recent interview, Risovich adds it was news to him that Davis' parents had been contributors.

At least $750,000 of the $1.6 million in campaign funds raised from 1996 to 2000 by the state Supreme Court's five sitting justices came from plaintiffs lawyers, says Cheryl Carlson, executive director of Citizens Against Lawsuit Abuse, a business-backed group. Four of the five justices got most of their contributions from trial lawyers. The fifth, Justice Davis, financed much of her campaigns herself, including giving $500,000 to her 2000 re-election.

Segal sees nothing wrong with either the lawyers' contributions or his wife's role in a decision that has helped his practice. "We get flogged by innuendo," he says.

Reprinted by permission of The Wall Street Journal, Copyright 2002, Dow Jones & Company, Inc. All Rights Reserved Worldwide. License number 627700636354.