The latest ranking of America's most unfair jurisdictions in which to be sued has been revealed in the American Tort Reform Foundation's 2007 Judicial Hellholes® report, with Jefferson County and other Texas coastal counties near the top of the list.
Executive Summary
Judicial Hellholes are places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. In this sixth annual report, ATRF shines the spotlight on six areas of the country that have developed a reputation for uneven justice.
1. SOUTH FLORIDA
South Florida has a reputation for high awards and plaintiff-friendly rulings that make it a launching point for class actions, dubious claims and novel theories of recovery. This year, defendants felt the Miami heat with a $521 million award against an accounting firm. In addition, an appellate court overturned a $60 million award against an automobile manufacturer in a case in which the driver fell asleep at the wheel.
Meanwhile, South Florida's "King of Torts," a lawyer whose lifestyle included a Key Biscayne waterfront mansion, leased apartments in New York and Los Angeles, a $1.2 million condo in Colorado and a staff of servants, went to prison for stealing $13.5 million from roughly 4,500 of his clients. And the liability climate has driven many doctors from the area, though this situation has steadily improved since the Legislature enacted reforms in 2003.
2. RIO GRANDE VALLEY AND GULF COAST,TEXAS
The Rio Grande Valley and Gulf Coast of Texas have made their way into each and every Judicial Hellholes report since the project's inception. It is recognized as one of the toughest places in America for corporate defendants to receive a fair trial.
This year, there was a surge in personal injury lawsuits related to dredging, a judge's "pocket veto" of an appeal of a $32 million award against a pharmaceutical company in a case where a juror knew and had taken loans from the plaintiff, and several particularly ridiculous lawsuits filings.
Despite strong statewide legislative reforms enacted in 2004, this area stubbornly refuses to shed its Judicial Hellholes reputation.
3. COOK COUNTY, ILLINOIS
Cook County, the last standing Judicial Hellhole in Illinois (after the departure of Madison and St. Clair counties), hosts a disproportionate number of the state's large civil cases.
Personal injury lawyers know that Cook County is the place to be, and this year they blew into the windy city to file massive class actions involving pet food and peanut butter, as well as many asbestos cases.
It was a Cook County judge who threw out a state law aimed at improving access to health care with limits on payouts for immeasurable damages for pain and suffering damages in medical malpractice cases.
4. WEST VIRGINIA
West Virginia courts have earned a reputation for anti-business rulings,massive lawsuits and close relationships between the personal injury bar,state attorney general and the judiciary.
It is almost unique among the states in providing civil defendants with no assurance that they will receive appellate review,and,as one of the cases highlighted in this year's report shows,this can leave a business hit with a multimillion-dollar verdict with nowhere to turn. The West Virginia Supreme Court of Appeals,when it does act, has cast a shadow on the reputation of the state's judicial system.
This year,it rejected a rule that places responsibility of warning patients of the risks of most drugs solely with their doctors,not pharmaceutical companies who do not know the patient's medical history. In addition,this year, the U.S.Supreme Court denied review of the West Virginia high court's invalidation of a law designed to stop forum shopping by plaintiffs who came from around the country to sue in Wild, Wonderful West Virginia courts.
Despite its Hellholes reputation, however, it is important to note that there are many judges that adhere to the law in West Virginia, as the judiciary's handling of litigation stemming from a 2001 flood that was blamed on everyone but nature shows.
5. CLARK COUNTY, NEVADA
Home to the county's hottest gambling spot, Las Vegas, Clark County has joined the Judicial Hellholes list for the first time. The decks appear to be stacked in favor of local lawyers who reportedly "pay to play" in the county's courts. Judges have been criticized for issuing favorable rulings in cases that benefit friends, campaign contributors or their own financial interests.
6. ATLANTIC COUNTY,NEW JERSEY
Personal injury lawyers seem to have gained a monopoly in Atlantic County, a new addition to the Judicial Hellholes report. New Jersey is known for particularly plaintiff-friendly laws, admitting junk science in court and hosting lawsuits from all over the country against their state's own economic driver, the pharmaceutical industry.
All these elements were on display in the Vioxx litigation in Atlantic County. There is also evidence that litigation fairness is deteriorating throughout the Garden State, leading to the formation of the New Jersey Lawsuit Reform Alliance in October 2007.
High profile issues such as class action abuse, pharma- ceutical liability, asbestos lawsuits and extraordinary awards often dominate headlines. But being cited as a Judicial Hellhole is nothing to celebrate. Litigation abuse ultimately hurts the people living in these jurisdictions the most nomic growth and access to health care, among other things.
Watch List
In addition to naming Judicial Hellholes, this report calls attention to several other jurisdictions for suspicious or negative develop- ments in the litigation environment or histories of abuse. These transitional jurisdictions could either fall into the abyss of Judicial Hellholes or dig themselves out.
1. Madison County, Illinois
The #1 Judicial Hellhole from 2002 to 2004 dropped to the #4 position in 2005, and then into "purgatory" at #6 last year.
Continued progress in restoring judicial fairness led by Chief Judge Ann Callis and Judge Daniel Stack, combined with substantial drops in the filing of class action, asbestos and large claims, has led ATRF to move Madison County onto the Watch List.
2. St. Clair County, Illinois
Madison's neighboring county has long been plagued with many of the same afflictions. If to a lesser extent, St. Clair has followed Madison County's example and lawsuits have fallen significantly since 2004.
3. Hillsborough County,Florida
Tampa hosted what is reportedly the third largest medical malpractice verdict in history, $217 million, this year.
In another case, a plaintiff turned down what his lawyers suggested could be millions in punitive damages after he lost his wife in an accident, declaring that there had already been enough pain and suffering.
4. Northern New Mexico
Evidence is mounting that several counties in Northern New Mexico may be developing into a Judicial Hellhole. An Albuquerque court rendered the state's highest personal injury verdict this year and, in another case, a family traveled 200 miles from their home to sue in San Miguel County over a car accident that had no connection to the area.
5. Delaware.
Delaware courts are generally known to be fair, but reforms by judges in Madison County, Illinois that limit forum shopping there have prompted personal injury lawyers to file asbestos cases in Delaware. Benzene and pharmaceutical cases followed.
This year, the first of the asbestos cases to reach trial ended in a $2 million verdict. California.
6. California
ATRF continues to watch Los Angeles County, formerly known as "the Bank"and San Francisco, which are repeatedly noted as places of concern by ATRA members.
Small business owners are under fire by plaintiffs' attorneys looking for a quick buck with lawsuits alleging technical violations of accessibility requirements for the disabled.
7. Other areas to watch include Philadelphia, Pennsylvania and Tucson, Arizona for their lawsuits against doctors; Mississippi where a prominent plaintiffs' attorney bribed two judges for favorable rulings; Cuyahoga County (Cleveland), Ohio where lawyers reportedly motivated by profit, not disability rights, use "professional plaintiffs" to sue small businesses for alleged violations of the Americans with Disabilities Act; Baltimore, Maryland for its asbestos litigation; and Providence, Rhode Island for a 2006 ruling approving of broad public nuisance lawsuits and, this year, the largest medical malpractice verdict in the state's history.
Dishonorable Mentions
Dishonorable mentions recognize particularly abusive practices, unsound court decisions,or legislative action that creates unfairness in the civil justice system. This year's dishonorable mentions include:
1. District of Columbia.
In a case that made international headlines, an administrative law judge sued his dry cleaners for $54 million for misplacing his pants, using the District's consumer protection law. The case went on for two years and took a two-day trial before it was finally dismissed. Missouri Supreme Court.
2. Missouri Supreme Court.
Missouri will become known as the "Show Me the Money"state if its high court continues to issue outlier, pro-plaintiff rulings. This year, the court permitted individuals that had experienced no injury to sue for medical monitoring, an approach rejected by most other states that have recently considered the issue. Michigan Legislature.
3. Michigan Legislature.
Michigan is generally known as a fair jurisdiction, but a recent full scale assault on the civil justice system by personal injury lawyers in the state legislature is cause for concern. The plaintiffs' bar is seeking to turn back the clock on past reforms while creating new ways to sue.
4. Georgia Supreme Court.
This year, the Georgia Supreme Court invalidated two legislative reforms intended to improve the fairness of asbestos and medical malpractice litigation.
5. Oklahoma.
The Oklahoma Supreme Court invalidated a law requiring a plaintiff to provide an affidavit from a physician when bringing a medical malpractice case. The Legislature reacted by rewriting the law to address the concerns of the court and including that provision in a comprehensive tort reform package. Governor Brad Henry, who had long expressed support for such a proposal, surprised the legislators by vetoing the bill, saying he had problems with two of its 49 provisions.
Points of Light
There is good news in some of the Judicial Hellholes and beyond. "Points of Light" provide examples of judges adhering to the law and reaching fair decisions as well as legislative action that has yielded positive change. This year's points of light include:
1. Legislative reforms implemented by West Virginia Legislature in 2003 have dramatically reduced medical malpractice premiums and brought new doctors to the state.
2. Ohio Judge Harry A. Hanna barred the law firm Brayton Purcell from practicing before his court after he caught its lawyers involved in a double-dipping scheme in which the firm blamed its client's death on asbestos exposure as a shipyard worker to collect from asbestos trusts and then blamed his death on smoking cigarettes with an asbestos- containing filter to try to collect again from Lorillard.
3. Florida appellate courts overturned excessive verdicts, including a breathtaking $145 billion award against cigarette manufacturers and a $1.58 billion verdict against Morgan Stanley.
4. The Mississippi Supreme Court rejected recognition of a claim for medical monitoring where a plaintiff has no identifiable injury, placing it in stark contrast with a ruling by the Missouri Supreme Court that earned it a dishonorable mention.
5. The Ohio Supreme Court upheld one of the most basic principles "How a Bill Becomes a Law," telling the governor that he cannot veto a bill after it becomes law. That is precisely what Governor Ted Strickland attempted to do to a tort reform law enacted in the final days of the previous legislative session.
6. Several courts around the country have held the line on runaway public nuisance lawsuits, resisting pressure from personal injury lawyers to create "super tort" that circumvents traditional products liability requirements.
Solutions
Finally, the report briefly highlights several reforms that can restore balance to Judicial Hellholes, including stopping "litigation tourism," enforcing consequences for bringing frivolous lawsuits, stemming abuse of consumer laws, providing safeguards to ensure that pain and suffering awards serve a compensatory purpose, strengthening rules to promote sound science, addressing medical liability issues to protect access to health care and prioritizing the claims of those who are actually sick in asbestos and silica cases.
Experience shows that one of the most effective ways to improve the litigation environments in Hellholes is to bring the abuses to light so everyone can see them. By issuing its Judicial Hellholes report, ATRF hopes that the public and the media can persuade the courts in Hellholes to provide "Equal Justice Under Law" for all.