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2019/2020 Executive Summary

The 2019 – 2020 Judicial Hellholes report shines its brightest spotlight on 10 jurisdictions, courts or legislatures that have earned reputations as Judicial Hellholes. Some are known for allowing innovative lawsuits to proceed or for welcoming litigation tourism, and in all of them state leadership seems eager to expand civil liability at every given opportunity.

JUDICIAL HELLHOLES

#1 PHILADELPHIA COURT OF COMMON PLEAS Philadelphia is home to an astounding $8 billion product liability verdict in 2019. Mass tort cases have inundated the Philadelphia Court of Common Pleas due to judges’ loose application of venue laws, a reputation for high jury verdicts, and an overall lack of legal reform. Trial lawyers spend millions of dollars on television advertisements to increase the pressure on defendants to settle cases. The city also remains one of the preferred jurisdictions for asbestos litigation.

#2 CALIFORNIA A perennial Judicial Hellhole, California’s fall from the No. 1 spot in 2019 cannot be attributed to any improvement in the state’s liability climate, but rather results from the severity of the problems plaguing Philadelphia. California courts allow innovative lawsuits to proceed and the burdensome Prop-65 law is exploited by the plaintiffs’ bar. The state is a magnet for class action lawsuits, and given the courts’ and legislature’s anti-arbitration stance, it is not expected to improve. In addition, California has adopted expansive employment law liability that is expected to lead to extensive lawsuit abuse.

#3 NEW YORK CITY New York trial lawyers continue to target small businesses with American with Disabilities Act claims, and the number of consumer lawsuits filed against the food and beverage industry remain on the rise. The legislature pursued a very plaintiff-friendly agenda while much-needed reform to New York’s “Scaffold-Law” continued to stall. Businesses are fleeing the state, as liability expands at every given opportunity.

#4 LOUISIANA The state of Louisiana, led by Governor John Bel Edwards, has developed a propensity to hire former campaign donors to represent the state in litigation. Rampant lawsuit abuse is driving up the cost of auto insurance. The legislature has failed to address these problems. Judicial misconduct by Louisiana judges also dominated the news cycles in 2019.

#5 THE CITY OF ST. LOUIS, MISSOURI Judges in St. Louis continue to disregard both state law and U.S. Supreme Court precedent. They are reluctant to end forum shopping and allow plaintiffs’ lawyers to introduce junk science in the courtroom. The Missouri Supreme Court also issued several liability-expanding decisions and provided windfalls to plaintiffs’ lawyers in 2019. The Missouri legislature has enacted modest reforms, but there is more to be done.

#6 GEORGIA A newcomer to the list of Judicial Hellholes, Georgia makes an appearance due to the courts’ dramatic expansion of premises liability and nuclear jury verdicts. Medical liability is on the rise following the Georgia Supreme Court’s decision to strike down commonsense reforms. Several important cases also are pending before the high court. It has the opportunity to realign itself in a fair and just manner or further solidify the state’s status as a Judicial Hellhole.

#7 COOK, MADISON AND ST. CLAIR COUNTIES, ILLINOIS This trio of Illinois counties is a magnet for no-injury class action lawsuits. The courts also have allowed frivolous lawsuits to proceed under the state’s Biometric Information Privacy Act, a goldmine for the plaintiffs’ bar. The counties are a hotbed for asbestos litigation and the preferred jurisdictions by trial attorneys. There is little hope for change as the legislature is hyper-focused on a liability-expanding agenda.

#8 OKLAHOMA Another newcomer in 2019, Oklahoma makes its first appearance on the Judicial Hellholes list due in part to Attorney General Mike Hunter’s mishandling of the state’s opioid litigation. The Oklahoma Supreme Court has made a habit of issuing liability-expanding decisions and the state’s legislature has failed to address the growing problems.

#9 MINNESOTA SUPREME COURT/ TWIN CITIES The Minnesota Supreme Court issued several troubling decisions in 2019. It expanded medical liability and employer liability under workers’ compensation laws. In addition, an appellate court upheld unwarranted sanctions against an in-state employer. The legislature continues to turn a blind eye to the abuses and proposed reforms once again stalled.

#10 NEW JERSEY LEGISLATURE In 2019, the New Jersey Legislature distinguished itself as one of the most plaintiff-friendly legislatures in the country. While the Judicial Hellholes report typically focuses on the courts, the New Jersey Legislature is an exception because of its drastic liability-expanding agenda. The legislature enacted a so-called “Wage Theft” bill with excessive penalties and advanced its attack on arbitration.

WATCH LIST

Beyond the Judicial Hellholes, this report calls attention to seven jurisdictions that bear watching due to their histories of abusive litigation or troubling developments. Watch List jurisdictions fall on the cusp — they may drop into the Hellholes abyss or rise to the promise of Equal Justice Under Law.

COLORADO SUPREME COURT Following yet another year of pro-plaintiff legislative activity and a failure by the Colorado Supreme Court to push back on liability-expanding decisions by lower courts, the Centennial State is yet again on the Watch List. The legal climate in Colorado continues to deteriorate with the playing field becoming more unfair and unbalanced in 2019.

FLORIDA A former No. 1 Judicial Hellhole, Florida took great strides toward improving its legal climate in 2019. Although there is much work to be done, the election of Governor Ron DeSantis (R) has heralded a sea change in Florida’s legal landscape, beginning with the appointment of several new Florida Supreme Court justices. This new court is deferential to legislative efforts to stop lawsuit abuse and poised to correct the course set by the prior activist court.

MARYLAND GENERAL ASSEMBLY As Baltimore courts took steps toward a more fair and balanced judicial system, plaintiffs’ bar pursued a lawsuit-friendly agenda in the state legislature. The legislature considered multiple liability-expanding bills and looked for creative ways to provide benefits to the politically powerful personal injury firm of Peter Angelos. Despite pushback from Governor Larry Hogan (R), more of the same is expected in 2020.

MONTANA SUPREME COURT The Montana Supreme Court’s penchant for expanding liability, judicial activism, and defiance of U.S. Supreme Court precedent once again landed it on the Watch List.

SUPREME COURT OF PENNSYLVANIA The Supreme Court of Pennsylvania is at a crossroads – the Court is considering several important cases that will have a lasting impact on Pennsylvania’s litigation environment. In recent years, both the intermediate appellate courts and the state’s high court have issued liability-expanding decisions and have swung courtroom doors open to out-of-state plaintiffs whose claims have no connection to the state.

SOUTH CAROLINA ASBESTOS LITIGATION South Carolina asbestos litigation has developed a reputation for pro-plaintiff rulings and unfair treatment of defendants. A concerning pattern of discovery abuse, unwarranted sanctions, low evidentiary requirements, and multi-million-dollar verdicts elevated the jurisdiction to the Watch List.

WEST VIRGINIA SUPREME COURT OF APPEALS After a tumultuous 2018, the West Virginia Supreme Court of Appeals has temporarily stabilized, but all will be up for grabs in the 2020 election. Three of the five seats on the state high court will be on the primary ballot as individual non-partisan elections.

DISHONORABLE MENTIONS

Dishonorable Mentions comprise singularly unsound court decisions, abusive practices, legislation or other actions that erode the fairness of a state’s civil justice system and are not otherwise detailed in other sections of the report.

Included among this year’s list is the American Law Institute’s troublesome Restatement on Consumer Contracts, judicial nullification of liability limits in the Sixth Circuit and Kansas, and Alaska’s allowance of “phantom damages.” The Oregon Supreme Court also issued a series of liability-expanding decisions and the Utah Supreme Court struck down a law that will expose doctors to more liability.

POINTS OF LIGHT

This year’s report again enthusiastically emphasizes the good news from some of the Judicial Hellholes and other jurisdictions across the country. Points of Light are examples of fair and balanced judicial decisions that adhere to the rule of law and positive legislative reforms.

Among the positive decisions, the North Dakota Supreme Court upheld a statutory limit on noneconomic damages and the South Dakota Supreme Court refused to expand bad faith liability for insurers.

Another encouraging development occurred in Missouri. A federal court dismissed a case for lack of personal jurisdiction, after it was transferred to it from the City of St. Louis Circuit Court, this year’s #5 Judicial Hellhole.

In addition to court actions, legislatures in 7 states enacted 15 significant, positive civil justice reforms in 2019, including asbestos trust transparency legislation in Alabama, assignment of benefits and bad faith reform in Florida, and e-Discovery reform in Missouri.

CLOSER LOOKS

THE EXPANSION OF PUBLIC NUISANCE LAW AND LOCALITY LITIGATION Pushing an expansive view of public nuisance law, the trial bar is seeking to represent local and state governments in a concerted effort to hold industries liable for public crises. The flood of lawsuits creates legal chaos and confusion and lines the pockets of trial lawyers – but does little to help the victims of these crises.

A TOXIC BREW: NEW THEORIES OF EMPLOYMENT LIABILITY AND THE WAR ON ARBITRATION The trial bar has launched an ambitious effort to expand its business model of driving class action lawsuits into the employment liability arena. New theories of employment liability and the war on arbitration are creating a toxic brew that will lead to more lawsuits and less jobs.

THE COMING WAVE OF PRIVACY CLASS ACTIONS: A CAUTIONARY TALE FROM ILLINOIS Privacy and security litigation is poised to become a “feeding frenzy” as plaintiffs’ lawyers look to the next cash cow. Illinois provides a stark warning, fanning the flames of abusive privacy litigation against businesses. These no-injury lawsuits are not new, but they are becoming more prevalent and are imposing significant costs on legitimate businesses offering useful services—all without enhancing consumer privacy.

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