Madison and St. Clair counties are again considered two of the worst jurisdictions in the nation according to the American Tort Reform Foundation’s annual Judicial Hellholes Report.
“[O]ur 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,” stated American Tort Reform Association president Tiger Joyce.
The report also considers “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."
Madison and St. Clair counties are ranked eighth out of nine jurisdictions. Last year, Madison and Cook Counties were ranked seventh and St. Clair County wasn’t included on the list.
Cook County was included on the Dishonorable Mention list this year.
The City of St. Louis also worked its way down the list as the fourth worst judicial hellhole. St. Louis was ranked third last year.
California, Florida, New York City, the City of St. Louis, Louisiana, Philadelphia Court of Common Pleas, New Jersey Legislature, Madison and St. Clair counties, and the Twin Cities in Minnesota round out this year’s Judicial Hellholes list.
Madison and St. Clair Counties
Madison and St. Clair counties earned their rank as the eighth worst judicial hellhole due to an increase in “no-injury” class action lawsuits, a “hyper-litigious culture” and “grim” prospects of legal reform in Illinois.
“As of 2018, the yearly fiscal losses due to excessive tort litigation are estimated at $397.2 million in state revenues and $335.4 million to local governments. For a state with as dire of a financial situation as Illinois, these costs are extremely concerning,” the report states.
Both Madison and St. Clair counties see a “high volume of litigation overburdening the judicial system,” according to the report.
St. Clair County has become a magnet for “no-injury” class action lawsuits, which target manufacturers for their “all natural” labeling. So far, 21 “no-injury” cases have been filed in the jurisdiction.
“The Nelson & Nelson law firm of St. Clair County is leading the charge, as they have filed several ‘unnatural’ class action lawsuits over the past few years,” the report states.
Most of the “no-injury” cases filed by Nelson & Nelson have been voluntarily dismissed. In one case, the firm received $245,000 in fees and the class received nothing.
“As is most often the case, plaintiffs’ lawyers walk away with hundreds of thousands of dollars in fees, while consumers are left with nothing but higher prices and fewer choices,” the report states.
Attorney David Nelson of Nelson & Nelson filed six “all natural” class actions on behalf of a single plaintiff, including a suit alleging Schnuck Markets falsely advertised the amount of peanuts in a can of mixed nuts.
Madison County, on the other hand, remains a hotspot for asbestos lawsuits, especially for out-of-state plaintiffs. The asbestos filings for 2017 was a 13.4 percent drop from the prior year with 1,128 cases filed. However, Madison County had nearly triple the number of asbestos cases filed in the next closest jurisdiction with Baltimore seeing 495 asbestos cases filed.
Madison County has had a total of 6,071 asbestos cases filed with 68 percent filed on behalf of out-of-state plaintiffs, according to the report.
“Plaintiffs flock to the Madison County courthouse because of its plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims survive,” the report states.
St. Clair County has also seen a sharp increase in asbestos case filings, shooting up 200 percent in 2017 over 2016 with a total of 207 asbestos cases filed.
“A large reason behind this sudden increase is the Missouri legislature’s enactment of a stronger standard for the admissibility of expert testimony in March 2017,” the report states.
St. Louis saw a drop in asbestos filings by 40.3 percent as St. Clair County saw a rise.
“The Daubert standard requires judges to act as ‘gatekeepers’ to prevent ‘junk science’ testimony from being heard at trial, making it much more difficult for plaintiffs’ attorneys to be successful with dubious asbestos claims,” the report states. “The vast majority of the asbestos lawsuits now filed in St. Clair allege that exposure to asbestos caused a person to develop lung cancer, which has other causes.”
Madison and St. Clair counties have also earned their spots on the Judicial Hellholes list due to “trial-lawyer driven opioid litigation.”
In St. Clair County, State’s Attorney Brendan Kelly filed an opioid lawsuit against Purdue Pharma and Abbot Laboratories. He argues that deceptive advertising and consumer fraud has contributed to the opioid and heroin epidemic in St. Clair County.
Madison County has not filed an opioid lawsuit, but Madison County State’s Attorney Tom Gibbons is mulling over the decision. While Gibbons has discussed concerns and details of a potential opioid lawsuit, he has made it clear that the authority to make the decision remains with him.
Judiciary Chair Mike Walters said he did not want opioid litigation to resemble Madison County’s notorious asbestos docket, calling it a “terrible drain.”
“The opioid epidemic is a serious public health crisis, but regulation through litigation is not the solution,” the Hellholes report states. “The public health interests need to be the main priority, not the personal financial interests of the trial bar, which become the focus when outside private attorneys are hired to represent government entities.”
The report states that the Illinois legislature’s failure to advance “common sense reforms” maintains the “’pro-plaintiff’ status quo.”
House Bill 4249, which failed to gain traction, “would have eliminated venue-shopping and made it more difficult for plaintiffs from around the country with no connection to Madison and St. Clair Counties to flock to those courthouses,” according to the report.
The bill would have also “limited how much could be recovered for medical care and treatment expenses to the amount actually paid rather than amount initially billed.”
“Legal reform legislation also faces an uphill battle in Illinois because some people embrace the counties’ Hellhole status. Plaintiffs’ lawyers argue it is good for the area and community because it leads to an increase in court filing fees, and increased business and tax revenue generated by new satellite law offices opening in the counties.
“This ignores the fact that lawsuit abuse drains the economy and drives businesses out of the state … Companies know that they do not face a fair and balanced playing field in the courtrooms, and as a result, choose not to do business in the state, taking their revenue and jobs with them,” the report states
City of St. Louis
Dubbed the “Show Me Your Lawsuit State” by the Judicial Hellholes report, the City of St. Louis earned its place on the list thanks to “massive verdicts, blatant forum shopping, and legislative ineptitude.”
“A reasonable observer would have to conclude that Republican lawmakers, who hold the majority in both legislative chambers, either condone lawsuit abuse and thus are aligned with the Missouri Association of Trial Attorneys or are incapable of taking on a wealthy entrenched interest,” the report states.
The report states that St. Louis has become a hot spot for forum shopping by out-of-sate plaintiffs thanks to loose venue rules and reluctant judges to properly apply U.S. Supreme Court precedent.
The report points to the talc litigation as an example of forum abuse, which allege women developed ovarian cancer from the use of Johnson & Johnson talcum powder. After a St. Louis jury awarded $72 million in a talc suit, St. Louis City has attracted a wave of similar cases.
In July, a St. Louis jury awarded $550 million in actual damages and $14.4 billion in punitive damages to a group of 22 plaintiffs alleging they developed ovarian cancer as a result of asbestos exposure from Johnson & Johnson’s baby powder. Only five of the plaintiffs had a connection to Missouri.
Johnson & Johnson plans to appeal the verdict following a successful appeal in a similar case based on jurisdictional arguments. Another Johnson & Johnson appeal is currently pending before the Missouri Supreme Court, the report states.
The report also states that St. Louis City judges allow plaintiffs’ lawyers to introduce junk science in talc litigation.
“Plaintiffs’ ‘experts’ tell jurors that talcum powder causes ovarian cancer, even as the American Cancer Society has found that research regarding this link is ‘mixed’ and potentially ‘biased,’ and that if there is an increased risk, the risk ‘is likely to be very small,’” the report states.
St. Louis is also considered a judicial hellhole because of “abusive consumer class actions.”
According to the report, plaintiffs’ lawyers file class actions “alleging that product labels, advertisements, or other business practices are misleading where no reasonable consumer has been misled or lost money.”
For example, class action lawyers have targeted candy companies, alleging consumers are misled because candy packages aren’t filled to the max with candy – even though amounts are clearly listed on the packaging.
The report also takes issue with the Missouri Supreme Court’s “pro-liability” reputation, including its decision to strike down limits on noneconomic damages and punitive damages and its adoption of a more expansive claim for medical monitoring.
According to the report, the trial bar maintains a “stronghold” on judicial selection at all levels. The current commission consists of three personal injury lawyers specializing in different areas of civil liability and three non-lawyers. The three non-lawyers appointed to the commission by former Gov. Jay Nixon, a Democrat, include a former paralegal at a plaintiffs’ firm, a union representative and a Democratic Party staffer. The commission serves a six-year term.
Aiding in the forum shopping reputation, St. Louis is inundated with lawsuit advertising.
In the second quarter of 2018, residents in the St. Louis media market saw about 14,000 local ads soliciting claims – an average of 12 ads per day.
The report further states that the Missouri legislature failed to pass necessary legal reform, including venue reform, Missouri Merchandising Practices Act reform, punitive damages reform, asbestos trust transparency reform, and reform regarding evidence of seatbelt nonuse during collisions.
Venue reform “would have restricted the ability of plaintiffs’ lawyers to combine the claims of out-of-state clients with those of Missouri residents.”
Missouri Merchandising Practices Act reform “would have reduced the opportunity for ‘no-injury’ lawsuits and attorney-generated litigation” and “there would have been no award of damages unless consumers have actually lost money.”
Reform regarding evidence of seatbelt nonuse “would have allowed a jury to consider evidence of a plaintiff’s failure to wear a seatbelt when deciding who is at fault for injuries resulting from auto accidents.”
Punitive damages reform would have made punitive damages available “based only on clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.”
Asbestos trust transparency reform “would have prevented plaintiffs’ lawyers from alleging that insolvent companies are responsible for their clients’ exposure to asbestos in order to obtain compensation from trusts set up by those companies, then hide this information when suing solvent companies in court.”
However, the report points out that Missouri adopted reform legislation that increases transparency “and protects the public purse when the state hires private attorneys on a contingency fee basis.”
Cook County earned a spot on the Dishonorable Mentions list due to the increased number of Biometric Information Privacy Act (BIPA) lawsuits.
Lawsuits making BIPA claims allege biometric information was improperly collected, used, sold, disseminated or stored.
“This has opened Illinois-based businesses up to massive potential liability, but nowhere has it hit quite as hard as Cook County, which has become ‘ground zero’ for BIPA lawsuits,” the report states.
More than 40 proposed class action complaints alleging BIPA violations have been filed in Cook County from August 2017 to March 2018.