Supreme Court’s Adoption of Novel Theories of Liability, Abusive ‘No-Injury’ Litigation, Place California atop Latest Judicial Hellholes List

Judicial Hellholes List
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Today, the American Tort Reform Foundation released its 2018-2019 Judicial Hellholes report. California tops the list, with Florida, New York City and St. Louis not far behind.

“With both this annual report and year-round website, our Judicial Hellholes program since 2002 has documented troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” American Tort Reform Association president Tiger Joyce said.

This year’s Judicial Hellholes report names the following as the nation’s “most unfair” in their handling of civil litigation:

  1. California
  2. Florida
  3. New York City
  4. The City of St. Louis
  5. Louisiana
  6. Philadelphia Court of Common Pleas
  7. New Jersey Legislature
  8. Madison and St. Clair Counties, Ill.
  9. The Twin Cities, Minn.

California, a perennial Judicial Hellhole, has the unfortunate distinction of once again earning this year’s No. 1 ranking. It was last at No. 1 in the 2015-2016 report, and also held the No. 1 title in the 2013-2014 and 2012-2013 reports.

“California judges and legislators expand liability at almost every given opportunity,” Joyce said. “This year, the court adopted ‘innovator liability,’ a novel and expansive theory concocted by the trial bar that has been rejected by more than 35 state and federal courts around the country. It holds brand-name drug manufacturers responsible for injuries caused by a generic drug, and serves only to disrupt innovation and hamper investment,” Joyce said.

This year’s No. 2 Judicial Hellhole is Florida, where the state’s Supreme Court issued a series of liability-expanding opinions that invalidated civil justice reforms including rejection of the Daubert standard for expert witness testimony – a standard adopted by more than 30 state and federal courts.

Davis Miles Referral

“Florida had a great opportunity to improve its ranking as a Judicial Hellhole, and they squandered it,” Joyce said. “The Florida legislature passed legislation in 2013 adopting the Daubert standard requiring judges to ensure that expert testimony in the courts is based on generally accepted scientific and technical principles, and this year the Florida Supreme Court deemed the bill unconstitutional, opening the door for ‘junk science’ in its courtrooms.”

Coming in at No. 3 is New York City which is no stranger to the Judicial Hellholes report as its asbestos court was on the list from 2013 to 2017, but this year the distinction expands to include other types of litigation in the city.

“While NYCAL (New York City’s Asbestos Litigation court) continues to cater to New York personal injury lawyers with its plaintiff-friendly procedures and some of the largest payouts in the country, the courts also have been inundated with frivolous consumer class actions targeting the food and beverage industry,” Joyce said. “The legislature also has failed to address excessive construction liability and asbestos litigation abuse, and has passed liability-expanding measures.”

Lex Reception

No. 4 on the list is the City of St. Louis.

“A year plagued by scandal, legislative ineptitude and continued lawsuit abuse makes St. Louis a top contributor to Missouri’s nickname, the ‘Show Me Your Lawsuit’ state,” Joyce said. “Judges continue to allow blatant forum shopping, disregarding U.S. Supreme Court precedent, and judges allow plaintiffs’ lawyers to introduce ‘junk science’ in the city’s talc litigation. The legislature had the opportunity to address many of the litigation abuses plaguing the courts, but failed to pass the much-needed reforms.”

Louisiana’s multitude of lawsuits and Governor John Bel Edwards’ hiring of private attorneys land the state in the No. 5 spot this year.

“Governor Edwards continues to hire former campaign donors to represent the state in litigation, putting his own personal interests ahead of those of the citizens of Louisiana,” Joyce said. “Beyond the pay-to-play schemes, the Pelican State had the worst economic performance of 2017 and its economy actually shrank. Governor Edwards’ solution has been to target the oil and gas industry with a barrel of lawsuits in an effort to shore up the state’s budget.”

This year’s No. 6 Judicial Hellholes ranking goes to the Philadelphia Court of Common Pleas, due in part to the excessive pharmaceutical litigation pending in the court. Not only was there a sizeable increase in the number of cases filed in the court’s Complex Litigation Center, but 84 percent of the cases were filed by out-of-state plaintiffs.

“The Philadelphia Court of Common Pleas has become a jackpot for trial lawyers across the country who need a favorable venue to file frivolous lawsuits,” Joyce said. “The cases flocking to Philadelphia that have no connection to the state, are a burden on the state’s taxpayers and create a court backlog that puts Pennsylvanians at a disadvantage. The state also remains a hotbed for asbestos litigation, thanks to its plaintiff-friendly rules and procedures.”

Coming in at No. 7 this year is the New Jersey state legislature that, with the exit of business-friendly Governor Chris Christie, pursued a liability-expanding agenda with high hopes that new Governor Phil Murphy would be sympathetic to the cause.

“While the Judicial Hellholes report typically focuses on courts, the New Jersey legislature is an exception, as it distinguished itself as the most plaintiff-friendly legislature in the country,” Joyce said.

However, the New Jersey Supreme Court made progress in its efforts to become a more judicially fair state, as shown by its enactment of the Daubert standard with regard to expert evidence.

“We applaud the New Jersey Supreme Court for its work this year to create a more balanced playing field in the courtroom,” Joyce said. “However, the trial lawyers maintain a strong hold on the state’s legislature and legislation like the Diane B. Allen Equal Pay Act only creates new opportunities for plaintiffs’ attorneys to sue employers.”

St. Clair and Madison Counties in Illinois earn the No. 8 spot due to the increase in “no-injury” consumer class action lawsuits filed in the counties. Many of these cases target food manufacturers for their labeling, claiming that products like cake mix or barbecue are not actually “all natural” as they might be labeled. The counties also remain among the plaintiffs’ bar’s favorite jurisdictions for asbestos lawsuits, and the Illinois legislature continues to turn a blind eye to the abuses.

Rounding out the list at No. 9 are Minnesota’s Twin Cities.

“Attorney General Lori Swanson’s mishandling of a 3M groundwater contamination case ended in an $850 million grant settlement, with $125 million in contingency fees going to an out-of-state firm who handled the case,” Joyce said. “The state’s high court also expanded liability for Minnesota land owners and lower courts around the state have followed the high court’s lead. To top it off, the Supreme Court recently determined that they would not employ the Daubert standard, making Minnesota an outlier as more than 30 state and federal courts have adopted the standard for their expert witness testimony.”

This year’s “Watch List” puts several state supreme courts on notice, including Colorado, Georgia, Montana, Pennsylvania and West Virginia, along with the city of Newport News, Va. and the Ohio 8th District Court of Appeals in Cuyahoga County.

“Dishonorable Mentions” call out singular actions negatively affecting the civil justice system.

This year’s list of Dishonorable Mentions include the following:

  • American Law Institute’s adoption of a troublesome Restatement on Liability Insurance
  • Cook County, Illinois’ increased number of BIPA lawsuits
  • Delaware Supreme Court’s overrule of take-home asbestos liability precedent
  • Idaho’s rollback of seat belt non-usage admissibility
  • Maryland Court of Appeals’ refusal to apply the state’s statute of repose in asbestos cases
  • Massachusetts Supreme Court’s adoption of innovator liability
  • New Mexico and North Dakota’s reversal of medical liability limits
  • Texas trial courts allow large damage awards, including the largest in the nation for 2018

Not all developments are bad, however. There are a few “Points of Light” including a favorable ruling from the U.S. Supreme Court regarding class action waivers in arbitration agreements, the 5th Circuit Court of Appeals decision to overturn a half-billion dollar verdict against Johnson & Johnson, the New Jersey Supreme Court’s series of well-balanced decisions, and the Wisconsin Supreme Court’s upholding of the limit on noneconomic damages in medical liability cases.

Additionally, eight state legislatures enacted nine civil justice reform statutes in 2018 as well.

“Finally, this year’s three ‘Closer Looks’ examine junk science in the courts, the influx of “no-injury” lawsuits, and the attempt by activist state attorneys general to regulate through litigation.


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