State AGs, supreme courts don't go unnoticed in Hellholes report

John O'Brien Dec. 15, 2009, 5:19am

WASHINGTON (Legal Newsline) - Several state attorneys general and state supreme courts were put under the microscope by the American Tort Reform Foundation in its annual "Judicial Hellholes" report, released Dec. 15.

Four state supreme courts made the ATRF's "Dishonorable Mentions" list, while the actions of Alabama Attorney General Troy King landed his state on the "Watch List." West Virginia Attorney General Darrell McGraw is also listed as a reason his state is the No. 2 Judicial Hellhole.

King hired trial lawyer Jere Beasley to sue more than 70 pharmaceutical companies. Some companies have settled, but two won victories at the trial court level and a recent Alabama Supreme Court decision overturned more than $270 million in verdicts against three companies.

"As this pharmaceutical litigation shows, Attorney General King is one of several state attorneys general who have used private, contingency-fee lawyers to bring actions on behalf of the state, raising questions as to whether law enforcement is about profiting lawyers and campaign contributors or about the public interest," the report says.

"The practice also siphons from taxpayers millions of dollars that the state would otherwise recover had it used its own lawyers rather than outside counsel."

King has set an example for other officials in the state, the report says. Five district attorneys hired private attorneys to file lawsuits this year, though King moved to have them dismissed.

"(O)ne can hope he did so out of a sense of fairness. But a cynic might argue that the line between the district attorneys' blatantly extortionist lawsuits and those which King has authorized Beasley to pursue is a rather fine one," the report says.

ATRF Counsel Victor Schwartz said the state Legislature needs to restrict the attorney general's ability to grant state power to contingency fee lawyers, while ATRF President Sherman Joyce said he doesn't want to see the state revert to the "tort hell" status it had 10-15 years ago.

The ATRF similarly criticized McGraw for hiring private attorneys to represent the State. Often, those lawyers have contributed to McGraw's campaign fund.

This year, the Arkansas Supreme Court nullified two significant legal reforms, the ATRF says.

The first allowed a defendant to offer evidence that a third-party was responsible for a plaintiff's injury. The case concerned a plaintiff injured by a starter bucket and was filed against a company that was not allowed to introduce evidence that the starter bucket had been modified by the plaintiff's employer.

Another decision struck down reform that was designed to prevent plaintiffs from using inflated figures when determining how much they were owed in medical malpractice cases.

"As a result of the court's strained rulings, those sued in Arkansas are no longer able to point the finger at other culprits as the actual cause of an injury unless they are already a party in the case and defendants may be on the hook that inflate the plaintiffs' true losses," the report says.

The report says rulings by the supreme courts of North Dakota and Minnesota will increase the amount of suits in those states. The Minnesota Supreme Court said a six-year statute of limitations still applies to certain types of personal injury lawsuits that have no connection to the state.

"Indeed, the court's recent ruling allows more than 4,000 out-of-state plaintiffs to proceed with a case against a Pennsylvania-based pharmaceutical manufacturer in Minnesota that would be dismissed as untimely in their home states," the report says.

The North Dakota Supreme Court reinstated an asbestos case in June where 13 of the 15 plaintiffs had missed the statute of limitations in all other jurisdictions except the state.

Also this year, the Massachusetts Supreme Court allowed a claim for medical monitoring damage, drawing the ire of the ATRF.

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Arkansas Supreme Court
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