Madison, St. Clair and Cook Counties together ranked No. 5 in the American Tort Reform Association’s (ATRA) annual “Judicial Hellholes” report, up from last year’s No. 8 ranking.
“This trio of Illinois counties is a magnet for asbestos litigation and ‘no-injury’ lawsuits stemming from the state’s Biometric Information Privacy Act,” the report states. “Making matters worse, the Illinois General Assembly is one of the most plaintiff-friendly legislatures in the country and Governor J.B. Pritzker (D) supports a liability-expanding agenda to the detriment of Illinois citizens.”
Illinois earned a special recognition this year as an “Everlasting Judicial Hellhole.”
“Jurisdictions in Illinois have been named Judicial Hellholes every year since the report’s inception,” it states. “Recurring issues over the past 20 years include asbestos litigation, lawsuits that do not actually claim any sort of injury occurred, including these jurisdictions welcoming those related to data privacy, and out-of-state lawsuits.”
Asbestos
According to the Dec. 7 report, Madison and St. Clair Counties saw an increase in asbestos case filings despite an 11 percent decrease nationwide in 2020.
“Plaintiffs flock to these county courthouses due to their plaintiff-friendly reputations, low evidentiary standards, and judges’ willingness to allow meritless claims to survive,” the report states.
Specifically, Madison County saw an increase from 1,159 asbestos cases filed in 2019 to 1,168 asbestos cases filed in 2020, maintaining its reputation as the most popular asbestos jurisdiction in the country. Madison County accounted for 31.7 percent of all asbestos cases filed nationwide in 2020, up from 28 percent in 2019, the report states.
Neighboring St. Clair County saw the second most asbestos cases filed in the country with “dramatic” 12.5 percent increase from 2019. St. Clair County accounted for approximately 11.5 percent of the asbestos case filings nationwide in 2020.
While Cook County saw a 21.6 percent decrease in asbestos case filings in 2020, it is still the eighth most popular asbestos jurisdiction in the nation. Collectively, Madison, St. Clair and Cook Counties accounted for 46 percent of the nation’s asbestos case filings in 2020.
Biometric Information Privacy Act
The counties also earned their ranking due to the “no-injury” BIPA lawsuits. BIPA allows individuals to file claims when their biometric information, such as a fingerprint, is collected, disseminated or stored without their written consent. Any “aggrieved” person may seek an award of more than $1,000 or actual damages for each negligent violation and more than $5,000 for each intentional or reckless violation.
BIPA was passed by Illinois lawmakers in 2008, “but it lied dormant until 2015 when plaintiffs’ lawyers discovered its business potential,” the port states.
Between 2008 and 2018, 163 BIPA class actions were filed. Then in 2019, those numbers almost doubled with over 300 BIPA class actions filed.
In 2019, the Illinois Supreme Court ruled that plaintiffs do not need to show any actual harm in order to collect damages.
“Class action lawyers are cashing in by targeting businesses of all sizes that use iris scans, fingerprints and facial recognition data that are used increasingly to keep physical workplaces and sophisticated communications and cyber systems safe,” the report states. “These lawsuits do not allege any harm from collection of the information (which is encrypted) but seek substantial civil penalties along with attorneys’ fees and litigation costs.”
Then in September, an Illinois appellate court ruled that the five-year statute of limitations applies to most BIPA claims. A one-year statute of limitations only applies in cases involving the publication of a plaintiff’s information.
Most BIPA cases are brought by employees suing their employer. The Illinois Supreme Court is currently hearing an appeal on a case out of Cook County against nursing home operator Symphony Bronzeville Park LLC, in which the court will decide whether BIPA claims are preempted by the Illinois Workers’ Compensation Act.
Illinois legislature
ATRA states in its report that the Illinois legislature “used a variety of questionable tactics to successfully pass priority bills” to align with the trial bar agenda. The legislatures in 2021 pushed late-night amendments and last-minute substitutions through.
Locally, the Illinois legislature passed S.B. 2406 in the middle of the night on the last day of the legislative session without a public hearing. The bill breaks up the 20th Judicial Circuit Court, which includes St. Clair County.
The report states that proponents of the bill argue that making St. Clair County its own judicial circuit will help ease the burden of the jurisdiction’s caseload, “but the real purpose seems to be to protect one of America’s premier personal injury destinations.”
While St. Clair County has maintained its ranking as a “Judicial Hellhole,” the report notes that the surrounding counties within the 20th Judicial Circuit are trending away from being plaintiff friendly.
The Democrat-controlled Illinois legislature also redrew the supreme court districts with a vote on party lines. The new map would shrink the Third District, which is the district that made history when it did not vote to retain Justice Thomas Killbride in 2020. He was the first state Supreme Court Justice to lose a retention vote in Illinois history.
The report notes that the plaintiffs’ bar suffered a blow when former Illinois Speaker of the House Michael Madigan stepped down in February 2021. He stepped down after ComEd was charged with bribery after allegedly attempting to influence an Illinois official fitting Madigan’s description through “financial benefits.”
ComEd agreed to pay a $200 million fine while Madigan has not been charged.
In another example, the Prejudgment Interest Act (Illinois S.B. 72) was enacted in May, which holds that prejudgment interest of 6 percent begins to accrue the day the action is filed.
“As a result, parties named in a lawsuit will have to weigh the increased risk of defending themselves in court because, while the case is litigated, the potential award is rising,” the report states.
The Prejudgment Interest Act was introduced by Senate President Don Harmon as a “loaded amendment” after the previous bill called for 9 percent and was set to die. The bill, which originally dealt with mortgages, passed the House on Jan. 13 at around 3 a.m.
“It is small businesses and their employees who will ultimately pay the price when astronomical litigation costs force businesses to raise prices across the board, simply to keep up,” the report states. “In turn, this will increase the ‘tort tax’ burden on consumers, while simultaneously increasing payouts for trial lawyers. It opens defendants in civil cases to unnecessary financial exposure, and at a time when many businesses across the state already are struggling.”
The report also suggests that excessive tort costs have had an economic impact on Illinois, costing 140,630 jobs, $9.57 billion in wages and $27.51 billion in economic output annually.
“Lawsuit abuse results in less investment in businesses, less productivity, and more time and money being spent on litigation,” the report states.
It adds that “lawsuit abuse imposes a ‘tort tax’ of $1,049 per Illinois resident.”
The report also highlights legal advertising spending in Illinois, noting that advertising has increased 70 percent in the last five years. More than $38 million was spent on local TV advertising in 2020 with roughly 249,447 ads aired.
Those estimates increased in 2021, which saw roughly $55.4 million spent on legal advertisements in Illinois in the first three months.
Other report highlights
Across the Mississippi River, the City of St. Louis was ranked No. 7 in the Judicial Hellholes report due to its “open-door policy for out-of-state plaintiffs,” it allows “junk science” in courtrooms, and the “uncertainty around standard for punitive damages.”
“The future success is contingent on the St. Louis court’s proper application of the new statutes,” the report states. “Some St. Louis judges have a history of ignoring both state law and U.S. Supreme Court precedent regarding expert evidence standards, personal jurisdiction and venue, and damage awards.”
St. Louis has made headlines in recent years in regards to its talc litigation. In July 2018, a St. Louis jury awarded $4.69 billion to a group of 22 women who claimed they developed ovarian cancer after years of using Johnson & Johnson baby powder for genital hygiene. The award was reduced to $2.12 billion by an appellate court in June 2020. The Missouri Supreme Court refused to review the verdict in November 2020.
More recently, a St. Clair County jury reached a defense verdict in an ovarian cancer lawsuit against Johnson & Johnson in September. The plaintiff’s counsel had asked jurors to award the estate of Betty Driscoll between $10 and $50 million.
The top 8 Judicial Hellholes include:
- California
- New York
- Georgia Supreme Court
- Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania
- Cook, Madison and St. Clair Counties, Illinois
- Louisiana
- City of St. Louis
- South Carolina Asbestos Litigation