Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act.
In essence, our Constitution recognizes that factual disputes should be decided by juries of lay citizens rather than paid, professional fact-finders (arbitrators) who may be more interested in their fees than the disputes at hand.
The admission agreements in this case contain arbitration clauses that eliminate a fundamental constitutional right: the right of the parties to have a jury trial in the West Virginia circuit court system on the plaintiffs’ personal injury claims against the defendant nursing homes.
The West Virginia Supreme Court wrote these statements last week when issuing rulings in three cases against the use of forced arbitration clauses in nursing home contracts to keep victims from taking their case to a jury of their peers. Each case involved (1) a claim that a nursing home negligently caused the death of a resident; (2) a contract signed by a representative for the resident with a clause mandating that any disputes arising from negligent treatment would be submitted to arbitration; and (3) a defense by the nursing home that the claim should be submitted to arbitration, not to a jury at trial.
The court courageously disagreed, citing Article III, ยง 13 of the state Constitution, which preserves the right of the people to a jury trial with language identical to that of the Seventh Amendment. The Justices also criticized the “tendentious reasoning” used by the U.S. Supreme Court in its rulings to turn the Federal Arbitration Act into a substantive law that preempts most state law.
Congratulations to the attorneys who pleaded these cases and won the victory for their clients. Hopefully this decision will start a trend in other courtrooms and spark a change in opinions in Congress about forced nursing home arbitration contracts. A bill to ban such clauses has been gathering dust for several years and needs to be resuscitated.