News Service Aug. 6, 2008, 2:00am
COLUMBUS, Ohio (Legal Newsline) -- While Ohio's economic climate could be better, it has improved over the last ten years thanks in part to the election of tort reform-minded judges, according to a new report released Tuesday by the Manhattan Institute's Center for Legal Policy, an organization supporting tort reform. According to James R. Copland, the Institute's executive director, the eight-page report released Tuesday is aimed at policy shapers in Ohio. "We hope to influence" them as well as state's executive branch, he says. The information contained in the report is also important for everyday citizens, says Copland. Created 30 years ago, the Manhattan Institute began releasing reports regarding what they label as a pro-business stance in 2003. Since then, they have released five full-length reports. The first reviewed what Copland calls "the national problem" of a judicial system perceives as plaintiff-friendly, while the second and third studies documented the status of asbestos and healthcare litigation, respectively. The other two reports, about California and Illinois, were in-depth studies of each state's judicial and legislative actions regarding civil litigation and tort reform. Just prior to releasing the Ohio report, the organization published a similarly brief one about Michigan. A similar review of West Virginia's legislative and judicial activities regarding tort reform will be published soon, says Copland. The Manhattan Institute has chosen to focus on the states it has for good reason, says Copland. California was selected first primarily because of its large population. States such as Illinois, Michigan and Ohio were subsequently reviewed because they "have a lot of litigation action and a lot of tort reform taking place," says Copland. Moreover, he says, they are states with large, manufacturing states that "have been the target of trial lawyers." Those states, he says, "used to be major problems for litigation but have gotten better. There's been a lot of progress," says Copland, equating tort reform with an improvement in a state's economic climate. The battle for Ohio The political and legislative landscape in Ohio is important to the Manhattan Institute for several reasons. First, campaigns for state Supreme Court justices have been contentious since the Ohio Supreme Court struck down broad sweeping tort reform legislation enacted by the Ohio General Assembly in 1996. Of course, pro-business organizations such as The Manhattan Institute decry such judicial activity, but the way the Ohio Supreme Court took their action proved incredibly troubling to some. "There hadn't been a case brought [by anyone] but the Ohio Supreme Court granted an extraordinary writ to strike down the law," says Copland. While he concedes the Supremes have the power to act as they did, "what they did was so broad that even the Harvard Law Review said it was wrong." However, according to the Institute's report, "Ohio's litigation climate has become less hostile to economic development than it had been for years." The report attributes that to the election of Ohio Supreme Justices less partial to the plaintiff's bar. "Today, however, Ohio's once-threatening legal environment is looking friendlier and fairer, thanks in no small part to the electorate's decision to install new judges who are less willing to substitute their policy preferences for the legislature's political will," says the report. However, that improvement could be reversed should the two incumbent Ohio Supreme Court justices up for re-election this November lost their seats, according to the report. The two justices, both Republicans, "have had good records," Copland says. Ohio's "improved legal environment helps attract business to the state," says Copland. The Prince of Torts Longtime Cincinnati plaintiff attorney Stanley Chesley earned an entire section in the Manhattan Institute report. Once dubbed 'The Prince of Torts', Chesley is among the country's most successful personal injury lawyers and a powerful fundraiser for the Democratic Party. The report labels Chesley the leader of 'Trial Lawyers, Inc.,' the organization's moniker for plaintiff lawyers. "Chesley has played a major role in developing a business model which involves significant political giving, the bundling of mass tort cases and a diversification of business lines across areas of litigation," says Copland. Also, says Copland, sometimes Chesley "brings dubious claims." There's no doubt Chesley has aggressively solicited potential plaintiffs in an effort to file class action lawsuits. By doing so, "they're suing and their intentions are for their own bottom line. They are really anti-business," Copland concludes. While Copland credits Chesley for his longevity in the legal field, he pegs him as the poster child epitomizing Ohio's need for tort reform. Chesley's rise to prominence began in 1977, after the devastating fire at the Beverly Hills Supper Club just over the Ohio River in Kentucky. The fire killed 165 people and Chesley is reported to have won over $49 million for verdicts and settlements for numerous victims and their families. Since then, he's been the lead attorney in several class actions cases, including one that rendered Dow Corning bankrupt after Chesley won $5 billion through lawsuits making the "now discredited claim that breast implants caused connective tissue disease," says the report. The Ohio AG debacle The recent scandals emanating from the office of former Ohio Attorney General Marc Dann also received ink in the Institute's report. Calling Dann "an activist" and "one of the most aggressive AGs in the nation in going after business," Copland says that anyone elected Ohio AG in November would be an improvement. "It's hard to get worse" than Dann, says Copland. While he would not endorse any of the three candidates running for Ohio AG, Copland did say the role of a state attorney general is "significant" in shaping the executive branch's attitude towards business and economic development in the state. However, he advises Ohio voters to be knowledgeable about which candidate is the most pro-business, meaning anti-tort reform. "It's important for Ohioans to take into account if the Ohio Attorney General is either anti-business or pro-business," says Copland. Copland says he's "nervous" that Richard Cordray, the democratic candidate for AG and the current state treasurer, would emulate Dann's aggressive tactics, interpreted by Copland to be anti-business. Copland says some of Cordray's past statements point to his intention to "generate prosecutorial and/or civil litigation for the state. If that happens, it could generate a lot of litigation for private attorneys acting as outside counsel or as private lawyers picking up the cause." Ohio is a leader According to Copland, Ohio is ground zero in the battleground of asbestos litigation. He attributes that to what he calls the brave actions of Cuyahoga County Court of Common Pleas judge Harry Hanna. In January 2007, Hanna barred a California law firm from appearing in his court room for what he calls 'double dipping.' While representing a World War II veteran who died in 2000 of a deadly form of lung cancer related to asbestos exposure, that firm filed several other suits claiming the plaintiff had been exposed to asbestos in different places. "The double-dipping scandal before Judge Hanna highlighted the lack of transparency in the ongoing asbestos litigation as well as the asbestos trusts, which have some $17 million in assets," says the report. As the "national focal point" of the asbestos litigation debate, Copland urges the Ohio General Assembly to adopt the Asbestos Claims Transparency Act or comparable legislation. "There's a big concern among business litigators that this is just the tip of the iceberg," says Copland.