From a release by the American Tort Reform Association…
With a transitional online release of its latest Judicial Hellholes ® report today, the American Tort Reform Association named civil courts in South Florida, Louisiana’s St. Landry Parish and the Gulf Coast of Texas as some of the worst in the nation. The group also cited reforms adopted by the Florida Legislature as “Points of Light” while unveiling a new website that will serve as the program’s principal platform in the future.
“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explained ATRA general counsel Victor Schwartz. “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”
Addressing the specific substance of the report, ATRA president Tiger Joyce said, “South Florida continues to inspire fear in those who are unfortunate enough to be hauled into court there. It remains the epicenter of the nation’s tobacco litigation, with several recent verdicts in the tens of millions of dollars for a single plaintiff, and where defendants’ evidentiary arms are tied behind their backs.
“The tradition of excessive awards spills into other areas, such as a $14 million award in an asbestos claim in Miami Dade County this year,” continued Joyce, “and turmoil in the legal profession also continues in South Florida and beyond, with several lawyers and a doctor who worked with them facing suspension, disbarment, indictment, and even a 50-year sentence for a wide range of nefarious conduct that significantly damages the public’s faith in the civil justice system.”
Turning to St. Landry Parish, Joyce observed that when Louisiana’s attorney general hired politically supportive plaintiffs’ lawyers on a contingency fee basis to sue Johnson & Johnson, “Their lawsuit claimed that the manufacturer overstated the benefits of an antipsychotic drug – not that anyone was injured – and led to an astounding $258 million judgment. We believe this is the largest judgment ever assessed in the parish and one of the largest in the history of the state.
“As for The Gulf Coast of Texas, it has long been recognized as one of the toughest places in America for corporate defendants to receive a fair trial,” Joyce said. “Once a perennial Judicial Hellhole, the area, which includes several of Houston’s surrounding counties, is at the center of numerous mass litigations, and is infamous for huge awards. Although the Texas legislature enacted significant reforms that helped improve the litigation climate throughout the state last decade, significant concerns about Gulf Coast, courts remain. A Harris County jury, for instance, recently broke records for the largest verdict for a single incident of wrongful death when awarding $82.5 million to the family of a worker killed in a natural gas explosion.”
Schwartz then wanted to emphasize that the Judicial Hellholes program was transitioning from an annual document to a year-round online format, featuring regular reports and updates on important civil justice developments.
“As both technology and the liability-expanding strategies of the always formidable litigation industry evolve,” Schwartz said, “we believe our Judicial Hellholes program must evolve, too. And while our reporting will remain largely focused on the judicial branch, we will occasionally include coverage of legislative and executive branch actions that affect the civil justice system, too.
“We still intend to write our year-end reports that rank the Judicial Hellholes, note lesser offending jurisdictions, and applaud civil justice reforms and other positive news. But we’ve concluded that the Judicial Hellholes program will be a much more useful tool for the media, policymakers and the public throughout the year as it moves to its new online platform. Of course, those interested can be alerted to content postings on our new website by following us on Twitter at ‘JudHellholes,’” Schwartz concluded.
Full text of the latest Judicial Hellholes report is posted at www.judicialhellholes.org. For easy reference, an executive summary follows immediately below.
JUDICIAL HELLHOLES 2010/2011
This ninth annual Judicial Hellholes report focuses primarily 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 remain hostile to reform efforts. 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 PHILADELPHIA, PENNSYLVANIA
Philadelphia is a source of great concern due to the philosophy and trial practices of its Complex Litigation Center, as well as the area’s reputation for excessive verdicts. The judicial leadership is engaged in a campaign to draw in massive personal injury lawsuits from around the country, viewing the increase in lawsuits and out-of-town lawyers as a boost for the court’s revenues and the local restaurants and hotels. Controversial practices, such as “reverse bifurcation,” unfairness in multiple trials against the same defendant at the same time, and combining multiple cases into a single trial provide incentives for plaintiffs’ lawyers to bring their claims to the City of Brotherly Love. Punitive damage awards over $1 million have reportedly tripled in Philadelphia courts. State tort law that is out of the mainstream further encourages lawsuits.
#2 CALIFORNIA, PARTICULARLY LOS ANGELES AND HUMBOLDT COUNTIES
California courts are known for wacky consumer class actions, extortionate disability access claims against small businesses, and expansive liability. Awards in Los Angeles are particularly generous. This year’s $208.8 million verdict for a single asbestos claimant, the largest such award in California history, is a prime example. Humboldt County, receiving its first mention in the report, hosted a $677 million class action verdict against a nursing home provider for occasionally falling below the staffing levels required by state regulations. Unfair practices during the trial led Forbes to call the case “a tort reform advocate’s dream – meaning a defendant’s worst nightmare.” And a California Supreme Court ruling that permits private personal injury lawyers to bring enforcement actions on behalf of the state, even though the lawyers’ interest in maximizing their fees may not serve justice in the public interest, also bodes poorly for the future.
# 3 WEST VIRGINIA
Last year’s report left off with West Virginia on the brink of adopting significant reforms – establishing an intermediate appellate court and a right of appeal. The end result, however, is a tremendous disappointment. Instead of following through on Governor Joe Manchin’s pledge, and an independent commission’s recommendation, to provide these basic needs, West Virginia’s highest court made only a modest change. Beginning December 1, it will issue short “memorandum decisions” in cases for which it does not grant traditional, full appellate review. This will replace a system of wholly discretionary review in which the state’s only appellate court declined to consider thousands of case each year. While the new practice may be an incremental improvement, it is a lost opportunity to provide litigants with the same level of appellate review found in practically every other state. One case that the state’s high court will fully consider this year is a challenge to the legislature’s adoption of an upper limit on pain and suffering awards in lawsuits against doctors and healthcare providers. It remains to be seen whether the court will uphold the law, as it has on two similar occasions, or engage in “judicial nullification” of a reasonable measure aimed at keeping health care accessible and affordable for West Virginia residents.
# 4 SOUTH FLORIDA
There’s a lot of positive news to report in Florida, as noted in this report’s Points of Light section. But the experience of one of the state’s most prominent tort reform advocates shows that those who seek needed reforms place themselves in the crosshairs of the plaintiffs’ bar. South Florida continues to inspire fear in those who are unfortunate enough to be hauled into court. It remains the epicenter of the nation’s tobacco litigation, with several recent verdicts in the tens of millions of dollars for a single plaintiff, and where defendants’ evidentiary arms are tied behind their backs. The tradition of excessive awards spills into other areas, such as a $14 million award in an asbestos claim in Miami Dade County this year. Turmoil in the legal profession also continues in South Florida and beyond, with several lawyers and a doctor who worked with them facing suspension, disbarment, indictment, and even a 50-year sentence for a wide range of nefarious conduct that significantly damages the public’s faith in the civil justice system.
# 5 COOK COUNTY, ILLINOIS
Cook County hosts nearly two thirds of the state’s litigation, while serving as home to just over40 percent of its population. Nothing appears to have changed this year to alter its reputation as one of the worst jurisdictions in the country in which to defend a lawsuit. It was a Cook County judge that struck down the legislature’s limit on pain and suffering damages in medical liability cases – a ruling that was upheld this year by the state’s supreme court. The result is a jump in medical malpractice premiums and an anti-doctor climate that has led Illinois medical students to practice elsewhere. Aside from frivolous lawsuits claiming that hot chocolate is “too hot” and that a vacuum is defective when it does not include a warning that it could suck a user’s hair off her head, Cook County also has developed into a national testing ground for precedent-setting litigation. The county itself bears the brunt of its litigation-friendly attitude, as the local government spends far more defending against lawsuits than other counties of similar size. But lawsuits are big business for the county and there seems little desire for reform.
# 6 CLARK COUNTY, NEVADA
Las Vegas courts are known for jackpot justice. This year, a pharmaceutical manufacturer and distributor found themselves on the receiving end of a half-billion dollar verdict. Considered “deep pockets,” they took the fall for the horrific conduct of a healthcare clinic that was shut down by health officials, and saw its top doctor indicted and charged by prosecutors, for reusing needles and keeping an unsanitary environment. The astronomical verdict came as no surprise to local legal observers, given the area’s reputation for plaintiff-friendly judges and skillful plaintiffs’ lawyers up against “big business.”
Beyond the Judicial Hellholes, this report calls attention to several additional jurisdictions that also bear watching for suspicious or negative developments in litigation, or for their histories of abuse. Watch List jurisdictions fall on the cusp – they may slip into the Hellholes abyss or rise to the promise of Equal Justice Under Law.
MADISON COUNTY, ILLINOIS
This former #1 Judicial Hellhole is again moving up the charts. Troubling signs in Madison County include annual asbestos case filings approaching their all-time high, and the growing percentage of lawsuits brought by plaintiffs with no connection to the county. A Madison County verdict recently, imposed a duty on manufacturers to design products that are virtually indestructible. During the trial, the jury got to consider the plaintiffs’ case, but highly relevant evidence of an automobile’s safety was kept from them. A “where’s the meat” lawsuit challenging whether Blimpie’s sandwiches are “Super Stacked” as advertised is yet another throwback to Madison County’s days as “America’s Class-Action Capital.”
ATLANTIC COUNTY, NEW JERSEY
New Jersey is home to two major industries: the one that manufactures life-saving prescription medicines and the one that relentlessly sues those manufacturers. Atlantic County hosts more lawsuits against drug makers than anywhere else in the country. There were several multi-million dollar awards this year, including the largest involving Accutane to date. And more than nine out of 10 plaintiffs in mass tort cases brought in New Jersey come from other states. Many small business owners also feel threatened by New Jersey justice, and physicians are particularly anxious since the state’s high court struck down a requirement that plaintiffs back up their claims with certificates of merit from qualified doctors.
ST. LANDRY PARISH, LOUISIANA
St. Landry Parish was the jurisdiction in which plaintiffs’ lawyers, hired by the state’s attorney general on a contingency fee basis, chose to wage their litigation assault on Johnson & Johnson. Their lawsuit claimed that the manufacturer overstated the benefits of an antipsychotic drug – not that anyone was injured – and led to a $258 million judgment. It is believed to be the largest ever assessed in the parish and one of the largest in the history of the state.
DISTRICT OF COLUMBIA
Depending on the outcome of a pending case in the District of Columbia, the city may become the nation’s capital for dubious consumer protection lawsuits. At issue is whether a plaintiff needs to make even a minimal showing of actual injury and loss in order to bring a claim, or whether virtually anyone can file lawsuits on behalf of the general public. Florida Congressman Alan Grayson lost his recent bid for reelection, but his legal campaign to “represent” D.C. residents in court, and get rich doing so, presses on.
NEW YORK CITY AND ALBANY, NEW YORK
New York City is gaining a reputation for litigiousness, as demonstrated by some of the shameless lawsuits highlighted in this year’s report. And the fact that the Speaker of the State Assembly, Sheldon Silver, is also a member of the personal injury bar with a financial stake in a company making litigation loans does not bode well for the entire state’s liability climate. A bill to authorize “workplace bullying” lawsuits is a current example.
ST. CLAIR COUNTY, ILLINOIS
While not as troubling as its neighbor, Madison County, St. Clair County has also experienced an uptick in litigation and is viewed as a jurisdiction that is hospitable to personal injury lawyers’ claims. Here, the transition from judge to personal injury lawyer can be seamless, as one judge recently retired from presiding over cases against a particular manufacturer and, within weeks, was filing lawsuits against the same manufacturer. Meanwhile, a civil suit against one of the area’s plaintiffs’ lawyer kingpins for outrageous behavior has languished for years.
Other areas to watch include the Gulf Coast of Texas and McLean County, Illinois.
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 Michigan Supreme Court for abusing its short-lived liability-friendly majority’s power with three bad rulings on a single day. The rulings lower the proof needed in medical malpractice cases, allow higher damages in no-fault automobile cases, and permit lawsuits without tangible injury by teachers against school boards;
- City of St. Louis Circuit Court Judge Angela T. Quigless for approving a class action settlement in which the lawyers were to receive millions in fees and expenses, while their clients each receive about $20 and three coupons worth $8.22 each; and
- The Colorado Supreme Court for ruling that plaintiffs in personal injury suits can recover costs of medical care that were billed, but not actually paid by anyone, rather than the actual cost of treatment paid by the individual or his or her insurer.
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.
- The Florida Legislature addressed three practices that contributed to the state’s poor litigation climate: the lax standard of proof for slip-and-fall cases, the inability of parents to sign waivers of liability so their children could participate in activities with some inherent risk of injury, and the need for transparency in the hiring of private lawyers to represent the state;
- West Virginia Judge Arthur Recht, after reflecting on recent instances of documented fraud in asbestos litigation, put in place various safeguards for cases filed in his court; and
- The Maryland Court of Appeals upheld the state’s statutory limit on subjective pain and suffering awards applied in personal injury cases, providing an example for other courts and legislatures.
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.