In Depth
ATRF Hellholes 2009-2010
01.04.2010
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New York City, New Mexico Emerge as ‘Judicial Hellholes,’ Joining Perennials in Florida, West Virginia, Illinois, New Jersey
California, Alabama, Southeast Texas and Madison County Make Report’s ‘Watch List’ As Court Rulings in Minnesota and North Dakota, and Gov. Rendell’s Pay-to-Play Contract with Outside Counsel Rate ‘Dishonorable Mentions’
West Virginia Court Commission, Various Rulings on ‘Emotional Harm’ Damages, and Legislatures in Oklahoma and Texas Lauded as ‘Points of Light’
While Corrupt Plaintiffs’ Lawyers Are Rounded up in the ‘Rogues’ Gallery’
WASHINGTON, D.C., December 15, 2009 – The American Tort Reform Foundation today released its annual Judicial Hellholes® report, naming some of the nation’s “most unfair civil court jurisdictions,” including first-time “Hellholes” New York City and the appellate courts of New Mexico, which join perennials South Florida, West Virginia, Cook County, Illinois, and Atlantic County, New Jersey.
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Hear the interview with Tiger Joyce here! |
The report also cites several “Watch List” jurisdictions that are on the cusp – “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” – in California, Alabama, and former Hellholes in the Rio Grande Valley and Gulf Coast of Texas, Madison County, Illinois, and Jefferson County, Mississippi.
Among the jurisdictions noted less severely as “other areas to watch” are Madison County neighbor St. Clair County, Illinois, Orleans and Jefferson parishes in Louisiana, and Clark County (Las Vegas), Nevada.
“Lawsuit abuse continues to have a negative impact on both the nation’s economy and its health care system,” began ATRF president Tiger Joyce. “Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”
American Tort Reform Association general counsel Victor Schwartz explained that, “In an effort to educate the public, our Judicial Hellholes report documents specific problems with certain judges in some of America’s most unbalanced civil courts while also offering solutions to those problems.”
“As those problems evolve,” Joyce added, “our report has evolved, too. And because several powerful and influential plaintiffs’ lawyers have faced serious corruption charges in recent years, we’ve again included in this year’s report a ‘Rogues’ Gallery’ as a not-so-subtle reminder to Congress about its responsibilities to investigate such criminality and wrongdoing.”
The report also includes a special section entitled, “Fueling the Fire,” which focuses on several troubling trends in some courts that could lead to costly expansions of civil liability and even an erosion of public health and safety.
“But remember,” Schwartz added, shifting gears, “the Judicial Hellholes report is not all bad news. Our ‘Points of Light’ section annually celebrates positive civil justice developments. This year’s report, for example, recognizes West Virginia’s Independent Commission on Judicial Reform for its November recommendation to establish a much-needed intermediate level appellate court in the Mountain State.
“Our report also applauds courts in several states that held the line on damages for ‘emotional harm,’ and we otherwise appreciatively cite recent positive court rulings in California, Maryland, New Jersey, Vermont and Wisconsin.”
Full text of the Judicial Hellholes 2009/2010 report is posted at www.atra.org. For easy reference, the executive summary follows immediately below.
Executive Summary
JUDICIAL HELLHOLES 2009/2010
Judicial Hellholes are places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. In this eighth annual report, ATRF shines the spotlight on six areas of the country that have developed reputations for uneven justice. Many of the jurisdictions cited this year have been cited before, and positive reforms are often fought tooth-and-nail. Not coincidentally, the local or state economies in many of these Hellholes jurisdictions have suffered more than most during the latest recession. And while reasonable people may disagree about the specific rankings assigned to each, no one can reasonably argue that the jurisdictions cited in this report do not qualify as Judicial Hellholes.
#1 SOUTH FLORIDA
South Florida, the home of WhoCanISue.com, is known for its medical malpractice claims, never-ending tobacco lawsuits and generous verdicts. Trial practices favor plaintiffs, as exemplified by a string of reversals in a Miami-Dade case against Ford Motor Company. Florida is also developing a reputation as the place to bring slip-and-fall lawsuits due to its lower burden of proof compared to other states, making the state ripe for fraudulent claims. Supermarkets, corner stores, and restaurants have no choice but to settle, regardless of whether they could have prevented accidents. In addition, Florida is one of the few states that allow those who drive under the influence of alcohol or drugs to sue the automobile manufacturer for failing to prevent their injuries by designing a safer car, while hiding from the jury the driver’s responsibility for the crash. South Florida is home to several legal scandals this year, in which lawyers enriched themselves with their clients’ money and bought hospital records to solicit business. Even the organization representing plaintiffs’ lawyers in the state has found itself in hot water.
#2 WEST VIRGINIA
West Virginia has gained its poor reputation as a place in which civil defendants often cannot receive justice. This perception is due to the state’s unique lack of appellate review; the home court advantage provided by locally elected judges to in-state plaintiffs against out-of-state corporations; unfair trial practices; and the novel, liability-expanding decisions of its high court. West Virginia is also known for its close relationships between the plaintiffs’ bar and its long-serving state attorney general. Recently, some businesses have attempted to fight back by exposing fraudulent claims. The recent recommendation of an Independent Commission on the Judiciary that West Virginia establish an intermediate appellate court and an appeal as a matter of right, as detailed in a Point of Light, provides some hope that West Virginia may be turning the corner on the road to reform. Until West Virginia shows tangible change, however, it remains a troubling Judicial Hellhole.
# 3 COOK COUNTY, ILLINOIS
Cook County is Illinois’ center of litigation, hosting 65 percent of the state’s lawsuits while serving as home to just 41 percent of its population. This disparity has widened over the past 15 fifteen years. O’Hare is not just busy with tourists, but also with lawyers bringing claims from around the state, across the country, and even from abroad. Lawsuits in hyper-litigious Cook County include claims that a dolphin at a zoo splashed spectators, that fire engine sirens are too loud, and that a camp is responsible for the deaths of teenagers who took a late night joy ride in its boats.
# 4 ATLANTIC COUNTY, NEW JERSEY & BEYOND
Atlantic County has been identified as a Judicial Hellhole since 2007 in large part because it serves as a center for mass tort actions, often directed at one of the state’s own economic generators, pharmaceutical manufacturers. Ninety-three percent of plaintiffs in New Jersey’s pharmaceutical mass torts come from outside the state. Atlantic County also spends an astronomical amount defending against lawsuits with a legal services budget that dwarfs other Garden State counties. In other New Jersey courts, advocacy groups have taken aim against food producers, alleging that hot dog makers should warn that this ballpark staple increases the risk of cancer and that restaurants commit fraud by not disclosing the sodium content of menu items.
# 5 NEW MEXICO APPELLATE COURTS
After several years on the Watch List, New Mexico’s appellate courts now get to feel some full-blown Judicial Hellholes heat. This year the New Mexico Court of Appeals even rejected the “baseball rule,” which has long recognized spectators’ inherent risk of being hit by a batted ball. In another recent case the same court found that the manufacturer of a rock crusher could be held liable for the death of a worker, even though the worker disregarded his training and climbed into the machine while it was still in operation, and even though someone else had altered the machine to expose its moving parts.
# 6 NEW YORK CITY
Start spreading the news… you can make it in New York by suing the city. The Great Gotham spent more settling slip and falls, medical malpractice, car accident and school-related claims than the next five largest American cities combined. With a personal injury lawyer serving as Speaker of the New York Assembly, it’s not surprising that many observers have also expressed concern with the trial practices of the new judge handling asbestos litigation in the state.
WATCH LIST
Beyond the Judicial Hellholes, this report calls attention to several additional jurisdictions that also bear watching for suspicious or negative developments in litigation or histories of abuse. Watch List jurisdictions fall on the cusp – they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law.
CALIFORNIA
Poorly reasoned California court decisions have placed the state’s citizens and business owners in jeopardy of expanded liability. California businesses are concerned that they will be unfairly hit with consumer and disabled-access lawsuits by those who have chosen litigation as a lifestyle. Plaintiffs’ lawyers have gamed the system to take advantage of procedural rules, and brand-name product manufacturers find themselves on the hook for injuries from competing generic products.
ALABAMA
Attorney General Troy King and personal injury lawyer Jere Beasley teamed up to sue the entire pharmaceutical industry, claiming that pricing practices known to federal and state regulators since the 1970s amounted to fraud. After receiving three multimillion-dollar verdicts in Montgomery County, the streak may have come to a sudden end this October when the Alabama Supreme Court stepped in to stop what it characterized as “regulation by litigation” and threw out all three verdicts. Meanwhile, local District Attorneys in Alabama have grabbed the baton and hired their contingency fee lawyer campaign contributors to sue pharmacies and cable companies.
MADISON COUNTY, ILLINOIS
For many years, Madison County was considered the epitome of a Judicial Hellhole. In recent times, a reform-minded court has made great strides in restoring fairness and predictability to what was once a magnet for class actions, asbestos litigation, and other big-ticket lawsuits from around the country. Madison County still remains substantially more litigious than other Illinois counties and, after a sharp decline in asbestos cases, filings doubled between 2006 and 2008. Judge Daniel Stack, who along with Chief Judge Ann Callis, is responsible for improvements in the court, will retire this year, opening a seat on the court. It remains to be seen what impact his retirement will have on Madison County’s movement forward.
JEFFERSON COUNTY, MISSISSIPPI
Comprehensive tort reforms in Mississippi between 2002 and 2004 went a long way to improve the legal climate in this former Judicial Hellhole, but there is still reason for concern. On the one hand, Jefferson County in 2009 was home to a rare plaintiffs’ verdict in a case against a lead paint manufacturer in a case in which it was alleged that the manufacturer was responsible for a child’s exposure to lead paint, even though all lead had been removed from its paints decades earlier. The plaintiff’s mother testified at trial that her child would never be able to go to college due to his injuries, but off to college he went as she took the money and went shopping. On the other hand, adjacent Claiborne County, also a past area of concern, had what appears to be its first defense verdict in a lawsuit claiming three companies were responsible for a plaintiff’s silicosis.
GULF COAST AND RIO GRANDE VALLEY, TEXAS
The area’s reputation has improved in recent years, but it is still known for being skewed toward plaintiffs. In one case this year, a judge took a rare jury verdict for a defendant and simply declared a “do over” with no written opinion. It is notable that the plaintiffs’ bar has joined with tort reform groups to stop “barratry,” a fancy legal word for ambulance chasing. Many Texas lawyers have taken to directly soliciting injured people and offering them cash upfront to represent them, even while still at the hospital.
Other areas to watch include St. Clair County, Illinois; Orleans and Jefferson Parishes, Louisiana; Las Vegas (Clark County), Nevada; and several “home run” jurisdictions for asbestos litigation.
DISHONORABLE MENTIONS
Dishonorable mentions recognize stand-alone abusive practices, unsound court decisions or legislative actions that create unfairness in the civil justice system. This year’s dishonorable mentions go to:
- The Arkansas Supreme Court for invalidating two important reforms which acted to fairly and accurately apportion liability and medical damages based on who actually caused an injury and what monies actually were expended when such an injury required medical care and treatment;
- The Minnesota Supreme Court for failing to seize an opportunity to fix a loophole that has made its courts a home for thousands of old lawsuits from around the country that could not be filed where the plaintiff lives or was allegedly injured;
- The North Dakota Supreme Court for a similar ruling that will encourage forum shopping; and
- Pennsylvania Gov. Ed Rendell for entering a no-bid contingency fee contract with a firm that made substantial donations to his campaign, and which provides private lawyers with carte blanche power to exercise the government’s enforcement power.
THE ROGUES’ GALLERY
The Rogues’ Gallery recognizes some of the cast of characters behind Judicial Hellholes: lawyers who have gone astray and, in some cases, ended up in jail. This year’s report tells several of their stories.
POINTS OF LIGHT
There is also good news in some of the Judicial Hellholes and beyond. “Points of Light” are examples of judges adhering to the law and reaching fair decisions, as well as legislative actions that have yielded positive change.
First, the report notes the recommendation of an independent commission established by West Virginia Gov. Joe Manchin that the state establish an intermediate appellate court and provide litigants with a right to an appeal. It is a positive first step to reform.
Then the report highlights several courts that took action to stem the substantial rise of subjective pain and suffering awards:
- The Maryland Court of Appeals applied its limit on noneconomic damages to all civil claims, preventing plaintiffs’ lawyers from circumventing the law by characterizing personal-injury lawsuits as consumer protection actions;
- The New Jersey Supreme Court required a new trial in a case in which the judge developed a chip on her shoulder against the defendant, leading to the highest noneconomic damage award in the state’s history;
- Vermont and California Courts rejected new emotional harm damages in cases involving injuries to pets; and
- The U.S. Supreme Court reemphasized the need for a plaintiff claiming “fear of disease” to show that the fear is “genuine and serious.”
The report also briefly highlights other good news, including Arizona’s enactment of medical liability reform, Oklahoma’s passage of a comprehensive tort reform package, the Ohio Supreme Court’s protection of the finality of written contracts, and the Texas legislature’s resistance to trial lawyer efforts to roll back the substantial progress made in the state in recent years.
FUELING THE FIRE
The organized plaintiffs’ bar is actively attempting to expand liability in the courts, legislatures and government agencies. Already it has had some success. This includes setting up discovery disputes with the objective of encouraging judges to impose extreme sanctions which permit plaintiffs to prevail in cases regardless of the underlying merits. The report also delves into the tort bar’s more indirect means to influence the development of the law and expand liability.
Commentary included in a new Restatement project of the American Law Institute, which courts in Judicial Hellholes may seize upon to radically change the traditional duties owed to persons who come on another’s property, reduce proof of causation, and admit junk science. In addition, the report identifies a new trend in which the plaintiffs’ bar has sought to hold businesses responsible for injuries from products it did not even manufacture or sell, or for injuries caused by others. Plaintiffs’ lawyers are also mounting an aggressive campaign to overturn federal preemption, a legal doctrine that restricts state lawsuits that would interfere in accomplishing federal health and safety goals.
SOLUTIONS
Experience shows that one of the most effective ways to improve the litigation environment in Judicial Hellhole jurisdictions is to bring the abuses to light. By issuing its Judicial Hellholes report, ATRF seeks to educate the public and the media, who in turn can persuade judges and other policymakers to work harder to provide Equal Justice Under Law for everyone.
This report also highlights several reforms that can help restore balance to Judicial Hellholes, including stopping “litigation tourism,” enforcing consequences for bringing frivolous lawsuits, stemming abuse of consumer laws, ensuring that pain and suffering awards serve a compensatory purpose, strengthening rules to promote sound science, protecting access to health care by addressing medical-liability issues, and prioritizing the asbestos and silica claims of those who are actually sick.
-ATRA-
The American Tort Reform Association, based in Washington, D.C., is the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation. Its members include nonprofit organizations and small and large companies, as well as trade, business and professional associations from the state and national level. The American Tort Reform Foundation is a sister organization dedicated primarily to research and public education.
