Legislative reforms and no-nonsense appellate courts have removed Southeast Texas courts from the top of this year's "Judicial Hellhole" list, but the American Tort Reform Foundation still has its eye on the Lone Star State.
According to ATRF's Judicial Hellholes Report released Dec. 16, courts along the Texas Gulf Coast and in the Rio Grande Valley have moved to the No. 1 spot on the "Watch List," a designation for jurisdictions that bear watching for negative developments in litigation, histories of abuse or laudable efforts to improve themselves. The Texas courts were in the No. 2 spot as "Judicial Hellholes" in the 2007 report.
"Watch List jurisdictions fall on the cusp – they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law," the report states.
"The positioning of Texas reflects positive developments with respect to Texas, where some trial courts had seemed indifferent to legislative changes enacted in 2005," ATRF President Sherman "Tiger" Joyce said in a Dec. 16 conference call. "And we regard the work of appellate courts as a positive shift."
In its seventh annual report, ATRF again focused on the areas of the country that have developed "reputations for uneven justice."
"Judicial Hellholes are places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits," the report's executive summary states.
Courts in the entire state of West Virginia are at the No. 1 spot in the 2008-2009 report, a move up from No. 4 in 2007.
Lisa Rickard, president of the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, said the Judicial Hellholes report shows that lawsuit abuse remains "alive and well in many jackpot jurisdictions."
The Southeast Texas Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.
"During this global economic downturn, we encourage state leaders to commit to reforming these trial lawyer-dominated jurisdictions that are driving away local jobs, revenue and opportunity," Rickard said in a statement.
According to the 2008 Judicial Hellholes report, there has been at least one Texas jurisdiction cited as a hellhole since ATRF began making the list. In recent years, counties along the Gulf Coast and Rio Grande Valley have been high on the list of problem areas.
"But this year, thanks to statewide litigation climate improvements spurred by comprehensive legislative reforms and no-nonsense appellate courts, these stubbornly problematic counties are being removed – at least temporarily – from the list of full-blown hellholes," the report states. "ATRF does so with extreme caution, recognizing that the historic unpredictability of decisions in the Rio Grande Valley and the Gulf Coast could easily result in backsliding."
Tort reform groups in Texas agree there have been some improvements, but now is not the time to stop monitoring the courts.
"Indeed Texas has made great strides to curb rogue jurisdictions where jackpot justice is commonplace," Bill Summer, president of Citizens Against Lawsuit Abuse of the Rio Grande Valley, said in a press release. "However, continued efforts by some personal injury lawyers to undue progress make our continued vigilance more important than ever. Rolling back civil justice reforms will land us back on the hellhole list in a hurry."
Among successes in Texas, the Hellhole report points to two Vioxx cases that were reversed by appellate courts as a signal there may be an end to the "anything goes" litigation environment. But, ATRF says there were a "number of disquieting developments" that could give rise to future Judicial Hellholes.
For example, as the Southeast Texas Record reported in September, as Texas celebrated the fifth anniversary of its medical liability reform legislation, the Texas Supreme Court declined to hear a case that would have settled the question of the constitutionality of the limits.
"This puts the reforms in a precarious and uncertain position, which could quickly reverse many of the hard-fought gains should a lower, plaintiff-biased court declare them unconstitutional," the ATRF writes.
But ATRF reports a recent Texas Supreme Court ruling as a reason for optimism. As the Southeast Texas Record reported on Dec. 10, in In re General Electric Co., the court ruled that the plaintiff, who had lived and worked in Maine all his life, could not sue for his asbestos exposure in the Texas asbestos multi-district litigation court in Harris County.
The Judicial Hellholes report also includes Texas courts in its "Points of Light" section, which applauds the "turnaround of Texas' medical liability crisis." Since Proposition 12 limited noneconomic damages in medical malpractice cases, insurance rates for doctor's has dropped, fewer claims have been filed, and a record number of new doctors have been licensed in the state, according to the report.