JUDICIAL HELLHOLES 2016–2017 “Hundreds of Plaintiffs with Product Liability Claims
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JUDICIAL HELLHOLES 2016–2017 “ Hundreds of plaintiffs with product liability claims . have been flocking to downtown St. Louis to a venue that over the past three years has developed a reputation for fast trials, favorable rulings, and big awards.” —Bloomberg Businessweek, Sept. 29, 2016 “ By weakening the relatedness requirement, the majority‘s decision threatens to subject companies to the jurisdiction of California courts to an extent unpredictable from their business activities in California, extending jurisdiction over claims of liability well beyond our state‘s legitimate regulatory interest. Such an aggressive assertion of personal jurisdiction is inconsistent with the limits set by due process.” — California Supreme Court Justice Kathryn M. Werdegar, dissenting from decision in Bristol-Myers Squibb Co. v. Super. Ct. (Anderson), Aug. 29, 2016, which allowed hundreds of nonresidents to sue an out-of-state manufacturer in a Golden State court. “ The proliferation of case consolidations as the judicial response to burgeoning caseloads in [New York City Asbestos Litigation (‘‘NYCAL’’)], with an emphasis on expediency and case management, has led to inequitable outcomes, which in turn have raised concerns over violations of defendant due process…. [C]onsolidated trial settings create administrative and jury biases that result in an artificially inflated frequency of plaintiff verdicts at abnormally large amounts.” — Peggy L. Ableman, Peter R. Kelso & Marc C. Scarcella, The Consolidation Effect: New York City Asbestos Verdicts, Due Process And Judicial Efficiency, Mealey’s Litig. Rep.: Asbestos (Apr. 2015). “ [T]he majority assumes—without any reasoned explanation—that due process requires a particular definition of ‘reasonableness’ in the award of statutory attorney’s fees. The definition assumed by the majority categorically precludes the legislative policy requiring a reasonable relationship between the amount of a fee award and the amount of the recovery obtained by the efforts of the attorney. Certainly, this legislative policy may be subject to criticism. But there is no basis in our precedents or federal law for declaring it unconstitutional.” — Florida Supreme Court Justice Charles T. Canady, dissenting from the court’s decision invalidating a fee schedule established for workers’ compensation cases in Castellanos v. Next Door Co., Apr. 28, 2016 “ We apply our evidence rules and our court rules and that attracts plaintiffs here. They like our evidence rules, they like our expert witness rules. .” — New Jersey Supreme Court Justice Barry T. Albin, Oral Argument, McCarrell v. Hoffmann-La Roche Inc., Oct. 13, 2016 “ It is no surprise that Madison County, IL, continues to be the epicenter for asbestos filings. Madison County makes up 29% of total filings and 48% of total mesothelioma filings for 2016 thus far. This is a 10% increase in total filings from the first half of 2015, and it accounts for the majority of the increase in 2016 mesothelioma filings to date.” —Asbestos Litigation: Mid-Year Report 2016, a report prepared by KCIC, a consulting firm evaluates product liability risks. JUDICIAL HELLHOLES 2016–2017 PREFACE Since 2002, the American Tort Reform Foundation’s (ATRF) Judicial Hellholes® program has identified and docu- mented problems in jurisdictions where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants. More recently, as the lawsuit industry began aggressively seeking expansions of civil liability not only from the judicial branch but from the legislative and executive (regulatory) branches of government, too, the Judicial Hellholes report has evolved to include such law- and rule-making activity, much of which can significantly affect the fairness of civil litigation. The content of this report builds off the American Tort Reform Association’s (ATRA) real-time monitoring of Judicial Hellholes activity year-round at www.JudicialHellholes.org. It reflects feedback gathered from ATRA members and other firsthand sources. And because the program has become widely known, ATRA also continually receives tips and additional information, which are then researched independently through publicly available court documents, judicial branch statistics, press accounts, scholarship and studies. Though entire states are occasionally cited as Hellholes, specific counties or courts in a given state more typi- cally warrant such citations. Importantly, civil court jurisdictions singled out by Judicial Hellholes reporting are not the only unfair jurisdictions in the United States; they are simply among the worst. The goal of the program is to shine a light on imbalances in the courts and thereby encourage positive reforms by judges themselves and, when needed, through legislative action or the ballot box. ABOUT THE AMERICAN TORT REFORM FOUNDATION The American Tort Reform Foundation (ATRF) is a District of Columbia nonprofit corporation founded in 1997. The primary purpose of the foundation is to educate the general public about how the civil justice system operates, the role of tort law in the civil justice system, and the impact of tort law on the public and private sectors. Judicial Hellholes is a registered trademark of ATRA being used under license by ATRF. JUDICIAL HELLHOLES 2016–2017 i CONTENTS PREFACE ............................................................................................i EXECUTIVE SUMMARY . 1 JUDICIAL HELLHOLES #1 City of St. Louis, Missouri.......................................................................... 5 #2 California........................................................................................ 9 #3 New York City Asbestos Litigation (NYCAL) ........................................................16 #4 Florida Supreme Court and South Florida...........................................................21 #5 New Jersey......................................................................................25 #6 Cook, Madison & St. Clair Counties, Illinois.........................................................29 #7 Louisiana .......................................................................................33 #8 Newport News, Virginia ..........................................................................35 #9 Hidalgo County, Texas............................................................................37 WATCH LIST Georgia Supreme Court .............................................................................40 McLean County, Illinois .............................................................................42 Montana Supreme Court ............................................................................43 U.S. District Court, Northern District of Texas .........................................................43 Pennsylvania Supreme Court ........................................................................44 Philadelphia Court of Common Pleas .................................................................46 Pittsburgh (Allegheny County), Pennsylvania ..........................................................48 West Virginia . 49 DISHONORABLE MENTIONS Arkansas Supreme Court: Invalidates Ballot Measure to Curb Healthcare Liability...........................50 Indiana Supreme Court: Nullifies Statute of Repose .....................................................51 Maryland Court of Appeals: Two Liability-Expanding Decisions ..........................................51 POINTS OF LIGHT IN THE COURTS Arizona Supreme Court Adopts Learned Intermediary Doctrine ..........................................52 Arkansas Supreme Court Upholds Seatbelt-Use Admissibility Law ........................................52 Colorado Supreme Court Adopts Plausibility Standard . 53 D.C. Adopts, North Carolina Confirms, Stronger Expert Testimony Standard ...............................53 Florida’s First District Court of Appeals Says State AG Can Dismiss Qui Tam Action.........................53 New Hampshire Judge in Merrimack County Says State Lacks Authority to Hire Contingency-Fee Lawyers .....54 Oklahoma, Indiana & Delaware Supreme Courts Reject ‘Phantom’ Damages ...............................54 Oregon Supreme Court Upholds Damages Limit........................................................55 IN THE LEGISLATURES..............................................................................56 CLOSER LOOK False Claims Litigation ..............................................................................57 THE MAKING OF A JUDICIAL HELLHOLE . .61 Copyright © 2016 by American Tort Reform Foundation ii JUDICIAL HELLHOLES 2016–2017 EXECUTIVE SUMMARY The 2016-2017 Judicial Hellholes report shines its brightest spotlight on nine courts or areas of the country that have developed reputations as Judicial Hellholes. JUDICIAL HELLHOLES #1 CITY OF ST. LOUIS, MISSOURI. The City of St. Louis is a magnet for product liability lawsuits and consumer class actions. The local trial court hosted three gigantic verdicts this year, totaling $197 million, in cases asserting that talcum powder causes ovarian cancer, plus other multimillion-dollar awards. The recipients of these awards, and most of the individuals 1 CITY OF ST. LOUIS, MISSOURI filing these types of lawsuits, are not from St. Louis, or even Missouri. They travel from across the country to 2 CALIFORNIA sue in St. Louis. Why? The state’s weak venue law and a 3 NEW YORK CITY lenient standard for expert testimony that allows “junk ASBESTOS