California reclaims top spot on 'Judicial Hellhole' list; ATRA bemoans state's adoption of 'innovator liability'

By John Breslin | Dec 4, 2018


WASHINGTON (Legal Newsline) - California tops the list of jurisdictions regarded as "Judicial Hellholes" by a national civil justice reform group.

In its annual list of what is considered to be the most unfair to defendants faced with civil litigation, the American Tort Reform Association put courts in California at the top, with Florida, New York City and St. Louis following behind.

“(O)ur Judicial Hellholes program since 2002 has documented troubling developments in jurisdictions where civil court judges systematically apply laws and court process in an unfair and unbalanced manner, generally to the disadvantage of defendants,” said ATRA president Tiger Joyce.

ATRA named nine specific Judicial Hellholes. They are California, Florida, New York City, St. Louis, Louisiana, Philadelphia Court of Common Pleas, the New Jersey Legislature, Madison and St. Clair counties in Illinois, and the Twin Cities in Minnesota.

California, the organization claims, is "a perennial judicial hellhole," as it was also named number one in 2015-2016, 2013-2014 and 2012-2013. It ranked No. 2 behind Florida in 2017's report.

“California judges and legislators expand liability at almost every given opportunity,” Joyce argued.

"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."

ATRA named Florida at No. 2. It came to its conclusion, in part, because 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."

This Daubert standard is applied in all federal courts and in more than 30 states. It allows the defense, or a plaintiff, in any case to question more closely the bona fides of an expert witness and provides that the judge can keep that expert from testifying if his or her science is not reliable. The Frye standard allows such experts to present so-called "junk science" and requires the jury to weigh the credibility of the witness.

“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.”

In New York, ATRA complained that it is achieving distinction beyond having venues where those suffering from the effects of asbestos have a voice.

"The distinction expands to include other types of litigation in the city," ATRA said.

“While NYCAL (New York City Asbestos Litigation) 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.”

At No. 4 on the ATRA list is the city of St. Louis, which the organization said saw a year "plagued by scandal, legislative ineptitude and continued lawsuit abuse." Joyce said St. Louis is a "top contributor" to Missouri being characterized as the "Show Me Your Lawsuit State."

“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," Joyce said. "The legislature had the opportunity to address many of the litigation abuses plaguing the courts, but failed to pass the much-needed reforms.”

ATRA named Louisiana at No. 5, laying the blame at what it called "a multitude of lawsuits and Governor John Bel Edwards’ hiring of private attorneys."

“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.”

In sixth place is the Philadelphia Court of Common Pleas. The organization included the court on the list because of the "excessive pharmaceutical litigation pending in the court," and the large percentage of out-of-state plaintiffs. Traditionally, more than 80% of plaintiffs in the court's mass torts program who are suing over pharmaceuticals have come from outside of Pennsylvania.

“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.”

Others on the list include the New Jersey state legislature, which ATRA said has "pursued a liability-expanding agenda."

“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, adding that the New Jersey Supreme Court has enacted the Daubert standard.

St. Clair and Madison counties in Illinois make the list due to the increase in "no injury" consumer class action lawsuits, many of which, ATRA said, target food producers for their labeling. The two counties also remain among the bar's favorite jurisdictions for asbestos lawsuits.

The Twin Cities make the ATRA list because of what it calls "Attorney General Lori Swanson’s mishandling of a 3M groundwater contamination case," which. the organization claimed, "ended in an $850 million grant settlement, with $125 million in contingency fees going to an out-of-state firm who handled the case."

"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," Joyce said. "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.”

ATRA said it is watching the state supreme courts of Colorado, Georgia, Montana, Pennsylvania, and West Virginia, as well as the city of Newport News, Virginia, and the Ohio 8th District Court of Appeals.

The American Association for Justice, the country's trial lawyer group, did not immediately respond to a request for comment from Legal Newsline.

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Organizations in this Story

American Association for Justice American Tort Reform Association Florida Supreme Court Governor John Bel Edwards New Jersey Supreme Court New York City Asbestos Litigation Philadelphia County Court of Common Pleas

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