Madison County and St. Louis were named as two of the worst jurisdictions in the nation according to the American Tort Reform Foundation’s annual Judicial Hellholes report.
St. Clair County was not included on the list this year.
The American Tort Reform Foundation’s Judicial Hellholes report identifies and documents “places where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” the report states.
The hellholes report also addresses “law- and rule-making activity, much of which can affect the fairness of any given jurisdiction’s civil justice climate as readily as judicial actions.”
The Illinois Civil Justice League provided its Asbestos Trust Transparency, Litigation Imbalance and Justice for Sale reports as well as background information on its work during the Madison County opioid litigation discussion for the Judicial Hellholes report.
“Unfortunately, Madison and Cook counties have become perennial Judicial Hellholes known for disproportionate volumes of litigation and large verdicts. Plaintiff-friendly judges seem to dominate both jurisdictions in which defendants face uphill battles from their very first motions,” stated John Pastuovic, president of the Illinois Civil Justice League.
Known for disproportionate volumes of litigation and large verdicts, Madison and Cook Counties are ranked as the seventh worst judicial hellhole, down from last year’s sixth place ranking.
“[W]ith the most relevant local and state politicians comfortably in cahoots with the powerful plaintiffs’ bar, prospects for positive reforms remain remote, even as these jurisdictions’ hyper-litigiousness works against economic growth and job creation, and makes it harder for both government and businesses to find affordable insurance,” the report states.
ATRF ranked St. Louis as the third worst judicial hellhole – down from its number one spot last year – despite its “change in gubernatorial leadership, a good start by state lawmakers on an agenda of much needed statutory reforms and a powerful U.S. Supreme Court decision curbing forum shopping in 2017.”
However, according to the report, much more work is needed to improve the civil justice climate in the “Show Me Your Lawsuits State.”
ATRF also praised the Seventh Circuit Appellate Court for two “sound” decisions decertifying a “preposterous class action that claimed no compensable injuries” and excluding “any exposure” expert testimony in a workplace asbestos suit.
Courts in Florida topped the list as the worst Judicial Hellhole, followed by courts in California, St. Louis, NYCAL, Philadelphia, courts in New Jersey, Madison and Cook Counties, and courts in Louisiana.
The Illinois Trial Lawyers Association responded, calling the report "recycled" and designed to "warp public understanding of how our legal system works."
"Illinois’ courts are fair and provide an avenue for people of ordinary means who are victims of wrongdoing to hold perpetrators accountable," wrote ITLA president John Scanlon.
"They serve as a powerful deterrent against corporate misconduct and that’s precisely why ATRA is so determined to shut down the ability of individuals to access them for help. ATRA and its supporters feign concern about “frivolous lawsuits” but what they truly fear are meritorious lawsuits that force them to return ill-gotten gains to the people they have hurt. The truth is that our justice system has well established procedures that screen out the very few suits that are without merit long before they get to trial."
Despite its dip in new asbestos case filings since its record-breaking year in 2013, Madison County still reigns as the national epicenter for asbestos litigation, “with the overwhelming majority of cases having absolutely no connection to the county or the state of Illinois,” the report says.
According to a report analyzing asbestos litigation across the country, nearly 1,300 new asbestos cases were filed in Madison County in 2016, more than three times the filings of the next most popular asbestos jurisdiction. Madison County accounted for 28 percent of all new cases filed in the country in 2016, the report states.
The Washington-based consulting firm KCIC, which prepared that report, analyzes asbestos litigation across the country, including Madison and Cook counties.
“It is certainly understandable why KCIC’s report named (Madison) county the ‘preeminent mature jurisdiction for asbestos filings,’ and why the jurisdiction again ranks prominently among the nation’s Judicial Hellholes,” the report states.
ATRF partially attributes Madison County’s attractiveness for asbestos litigation to the price tag of mesothelioma claims, which are worth up to $3 million each. Further, plaintiffs’ attorneys collect 30 percent in fees, or roughly $1 million per mesothelioma claim.
The Simmons Firm in Alton and Gori Julian in Edwardsville accounted for 58 percent of all new asbestos claims filed in Madison County last year.
“Small businesses and taxpayers are footing the bill for this lucrative litigation,” the report states. “By opening their doors to cases with little connection to the area, or even the state, courts are increasing the liability insurance premiums on Illinois businesses and those costs are trickling down to consumers and undermining job creation.
The report also mentions Ford’s jurisdictional appeal at the Fifth District Appellate Court on order by the Illinois Supreme Court. Ford Motor Company argues that Madison County is not an appropriate venue because it is not at home in Illinois.
ATRF states that the recent Aspen decision out of the Illinois Supreme Court, in which the court ruled that the location of Interstate Warehousing Inc.’s Joliet warehouse was insufficient to subject it to jurisdiction in the state.
“If Illinois’ lower courts hue to this high court decision and properly dismiss cases involving parties with insufficient ties to the state, plaintiffs’ lawyers may find it more difficult to continue exploiting Madison County’s plaintiff-friendly courts and be forced to file their cases where they belong,” the report states.
ATRF also states that asbestos trust transparency reform is needed in Illinois to address double-dipping as “plaintiffs’ lawyers have learned to exploit the informational disconnect that exists between administrators of asbestos bankruptcy trust funds and civil courts.”
“The problem arises because trust administrators are not obligated to share claims information with attorneys defending asbestos lawsuits and, by intentionally delaying the filing of asbestos trust claims until lawsuits conclude, plaintiffs’ lawyers can hide critical evidence about products their clients were allegedly exposed to and thus increase the likelihood that juries will hold still-solvent defendant companies solely liable for their clients’ alleged injuries,” the report states.
The report pointed to asbestos defendant Avocet Enterprises’ appeal to the Fifth District seeking to sanction the Gori Julian firm. Avocet alleges Gori Julian engaged in “a conscious and repeated effort to hold Avocet hostage to the byzantine world of asbestos litigation and to then seek its settlement ransom.”
Avocet alleges the firm has filed over 400 similar cases against it, and all but four resulted in dismissal without settlement.
“On principle, Avocet has spent $720,000 defending the lawsuits, which they claim have no factual basis and are intended only to harass the company and force settlements. But principles don’t get asbestos defendants very far in Madison County,” the report states.
Madison County also earned its spot on the Judicial Hellholes list for considering joining the opioid litigation trend against pharmaceutical companies regarding their production, marketing and distribution of federally regulated opioid-based pain-relievers.
ATRF notes that Illinois “faces severe budgetary problems, and officials see this litigation as a means to solving some of those problems.”
However, “Madison County seems as determined to pursue adversarial litigation as it is to hire politically influential personal injury lawyers on a contingency-fee basis to run that litigation,” the report continues.
The report criticizes Madison County State’s Attorney Tom Gibbons for appearing to have already made up his mind about hiring contingency fee lawyers to run the potential lawsuit.
ATRF adds that “on the off chance that anyone’s inclined to believe that Madison County’s hyper-litigiousness hurts no one other than the deep-pocket corporations often targeted there,” insurance carriers Brit and Hudson declined to submit new bids to provide insurance coverage this year, citing the unacceptable risk of litigation.
“A county official said various insurers over the years have declined to write policies in Madison County ‘because of the litigation factor,’” the report states. “And when fewer insurers are willing to offer policies, county residents and businesses – both as taxpayers and private consumers alike – pay bigger bills, as wealthy area trial lawyers laugh all the way to the bank.”
Also ranked seventh on the Judicial Hellholes list, Cook County has experienced a “litigation explosion” as the county accounts for roughly two-thirds of Illinois’ major civil litigation.
“Judges consistently display a pro-plaintiff bias and a disregard for truth and fairness,” the report states. “The Cook County court has been plagued by unqualified and unethical judges, yet somehow most continue to be reelected.”
However, two Cook County judges were removed from the bench this year for misconduct.
Judge Jessica O’Brien was indicted on federal mortgage fraud charges, and Judge Richard Cooke was forced to step down after he refused to work in traffic court and defied orders to do so for months.
Cook County is also notorious for its “meritless lawsuits filed there each year as personal injury lawyers scramble for the next ‘golden ticket,’” the report states.
“These lawyers spend millions of dollars on advertising that encourages Illinoisans to sue over anything and everything, clogging the county courthouse with litigation that invariably delays justice for those with legitimate claims.
“These very same lawyers then contribute millions to Cook County judges’ election campaigns, hoping to cultivate a plaintiff-friendly bench,” the report continues.
The report cites a 2016 study showing campaign contributions by trial lawyers to judges and others seeking office in Illinois topped $35.25 million during the previous 15 years.
In addition to $6 million contributed through the Illinois Trial Lawyers Association’s legislative political action committee, the top 25 plaintiffs’ firms and their lawyers and family members invested a total of $29 million in additional contributions.
Further, the report further mentions recent class actions targeting Walgreens, 7-Eleven and McDonald’s for erroneously applying Cook County’s new soda tax, which has since been repealed.
“While this Judicial Hellholes distinction should certainly make the elected officials in these counties cringe with embarrassment, there is also a very real consequence,” Pastuovic stated in a press release. “The putrid legal environment has made small, medium and large business reluctant to invest in Illinois, costing hardworking families well-paid, meaningful jobs.”
St. Louis, which ATRF says is known for its “fast trials, favorable rulings, and big awards,” kicked off 2017 with a new “reform-minded” governor.
Gov. Eric Greitens signed an expert witness standards bill, adopting the Daubert standard, in March. During the bill-signing ceremony, Greitens said, “When crooked trial lawyers bring in shady witnesses who act as experts while peddling junk science, it makes it harder for justice to be done. That scares away businesses.”
However, prior to the adoption of Daubert, Missouri, and St. Louis in particular, was known as a home for talcum powder litigation due to its prior “dwindling minority of holdout states with an outdated standard for expert testimony that allowed juries to hear speculative testimony that is disallowed elsewhere.”
Four of the first five talc trials conducted in St. Louis City Circuit Court resulted in a cumulative total of more than $300 million in plaintiffs’ verdicts. The plaintiffs in those cases lived, purchased and used talc products in Alabama, California, South Dakota, Tennessee and Virginia.
However, following the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California, St. Louis Circuit Judge Rex Burlison declared a mistrial in the sixth talcum powder trial as it was under way in June.
The Missouri Court of Appeals, Eastern District subsequently reversed and vacated the first talc verdict, which was for $72 million.
“But optimism resulting from those rulings was dashed as this report went to press. Only six months after his earlier ruling, plaintiffs’ lawyers convinced Judge Burlison to preserve the latest of St. Louis’s talc verdicts – the $110 million award to a Virginia resident who bought and used talc products there.
“Rather than throw out the out-of-state claim, Judge Burlison gave the plaintiffs’ lawyers on opportunity to ‘make a record’ connecting the case to Missouri,” the report states.
ATRF noted a “sound jurisdictional” decision out of the Missouri Supreme Court in February 2017, when it entered a jurisdiction ruling similar to the BMS decision in an injury suit against Virginia-based Norfolk Southern Railway Company.
ATRF also named St. Louis a judicial hellhole due to its growing asbestos docket. The docket grew from 67 asbestos lawsuits in 2010 to about 311 in 2016, with the biggest filers being Gori Julian and New York-based Napoli, according to a KCIC Industry Report.
“Though it no longer offers a lax expert testimony standard, St. Louis is increasingly attractive to asbestos claimants for many of the same reasons it attracts other products liability litigation – plaintiff-friendly venue and joinder rules, relatively inexpensive television advertising, and the potential for excessive awards …” the report states.
Seventh Circuit Appellate Court
ATRF praised the Seventh Circuit Appellate Court for its recent Eike and Krik decisions.
In Eike, Justice Richard Posner “vacated class certification and remanded for dismissal a suit against six pharmaceutical companies that preposterously claimed eye drops manufactured by the defendant were ‘unnecessarily large’ and thus in violation of state consumer fraud statutes.”
“Comparing the eye-drops plaintiffs to ultimately dissatisfied individuals who purchased cats from a breeder who truthfully disclosed upfront all the costs of raising the cats, he called their complaint merely one of regret, not one in which an actionable injury occurred,” the report states.
In Kirk, Justice Ilana D. Rovner affirmed a decision out of the Northern District of Illinois excluding scientifically unsound expert testimony about medical causation in a workplace asbestos suit.
The Seventh Circuit held that Dr. Arthur Frank’s “any exposure” theory of causation shifted the burden of proof on causation to the defendants because it requires “a defendant to exclude a potential cause of the illness.”