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Judicial Hellholes 2007

Judicial Hellholes 2007 Report Cover
Read the full Judicial Hellholes 2007 Report.

Executive Summary

Judicial Hellholes are places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. In this sixth annual report, ATRF shines the spotlight on six areas of the country that have developed a reputation for uneven justice.

1. SOUTH FLORIDA

South Florida has a reputation for high awards and plaintiff-friendly rulings that make it a launching point for class actions, dubious claims and novel theories of recovery. This year, defendants felt the Miami heat with a $521 million award against an accounting firm. In addition, an appellate court overturned a $60 million award against an automobile manufacturer in a case in which the driver fell asleep at the wheel. Meanwhile, South Florida’s “King of Torts,” a lawyer whose lifestyle included a Key Biscayne waterfront mansion, leased apartments in New York and Los Angeles, a $1.2 million condo in Colorado and a staff of servants, went to prison for stealing $13.5 million from roughly 4,500 of his clients.And the liability climate has driven many doctors from the area, though this situation has steadily improved since the Legislature enacted reforms in 2003.

2. RIO GRANDE VALLEY AND GULF COAST,TEXAS
The Rio Grande Valley and Gulf Coast of Texas have made their way into each and every Judicial Hellholes report since the project’s inception. It is recognized as one of the toughest places in America for corporate defendants to receive a fair trial. This year, there was a surge in personal injury lawsuits related to dredging, a judge’s “pocket veto” of an appeal of a $32 million award against a pharmaceutical company in a case where a juror knew and had taken loans from the plaintiff, and several particularly ridiculous lawsuits filings. Despite strong statewide legislative reforms enacted in 2004, this area stubbornly refuses to shed its Judicial Hellholes reputation.

3. COOK COUNTY, ILLINOIS
Cook County, the last standing Judicial Hellhole in Illinois (after the departure of Madison and St. Clair counties), hosts a disproportionate number of the state’s large civil cases. Personal injury lawyers know that Cook County is the place to be, and this year they blew into the windy city to file massive class actions involving pet food and peanut butter, as well as many asbestos cases. It was a Cook County judge who threw out a state law aimed at improving access to health care with limits on payouts for measurable damages for pain and suffering damages in medical malpractice cases.

4. WEST VIRGINIA
West Virginia courts have earned a reputation for anti-business rulings,massive lawsuits and close relationships between the personal injury bar,state attorney general and the judiciary.It is almost unique among the states in providing civil defendants with no assurance that they will receive appellate review,and,as one of the cases highlighted in this year’s report shows,this can leave a business hit with a multimillion-dollar verdict with nowhere to turn. The West Virginia Supreme Court of Appeals,when it does act, has cast a shadow on the reputation of the state’s judicial system. This year,it rejected a rule that places responsibility of warning patients of the risks of most drugs solely with their doctors,not pharmaceutical companies who do not know the patient’s medical history. In addition,this year, the U.S.Supreme Court denied review of the West Virginia high court’s invalidation of a law designed to stop forum shopping by plaintiffs who came from around the country to sue in Wild, Wonderful West Virginia courts. Despite its Hellholes reputation, however, it is important to note that there are many judges that adhere to the law in West Virginia, as the judiciary’s handling of litigation stemming from a 2001 flood that was blamed on everyone but nature shows.

5. CLARK COUNTY, NEVADA
Home to the county’s hottest gambling spot, Las Vegas, Clark County has joined the Judicial Hellholes list for the first time. The decks appear to be stacked in favor of
local lawyers who reportedly “pay to play” in the county’s courts. Judges have been criticized for issuing favorable rulings in cases that benefit friends, campaign contributors or their own financial interests.

6. ATLANTIC COUNTY,NEW JERSEY

Personal injury lawyers seem to have gained a monopoly
in Atlantic County, a new addition to the Judicial
Hellholes report. New Jersey is known for particularly
plaintiff-friendly laws, admitting junk science in court
and hosting lawsuits from all over the country against
their state’s own economic driver, the pharmaceutical
industry. All these elements were on display in the Vioxx
litigation in Atlantic County. There is also evidence that
litigation fairness is deteriorating throughout the Garden
State, leading to the formation of the New Jersey Lawsuit
Reform Alliance in October 2007.

High profile issues such as class action abuse, pharma-
ceutical liability, asbestos lawsuits and extraordinary awards
often dominate headlines. But being cited as a Judicial Hellhole
is nothing to celebrate. Litigation abuse ultimately hurts the
people living in these jurisdictions the most nomic growth and access to health care, among other things.

Watch List

In addition to naming Judicial Hellholes, this report calls attention
to several other jurisdictions for suspicious or negative develop-
ments in the litigation environment or histories of abuse. These
transitional jurisdictions could either fall into the abyss of Judicial
Hellholes or dig themselves out.

1. Madison County, Illinois
The #1 Judicial Hellhole from
2002 to 2004 dropped to the #4 position in 2005, and then
into “purgatory” at #6 last year. Continued progress in
restoring judicial fairness led by Chief Judge Ann Callis and
Judge Daniel Stack, combined with substantial drops in the
filing of class action, asbestos and large claims, has led ATRF
to move Madison County onto the Watch List.

2. St. Clair County, Illinois
Madison’s neighboring county
has long been plagued with many of the same afflictions. If
to a lesser extent, St. Clair has followed Madison County’s
example and lawsuits have fallen significantly since 2004.

3. Hillsborough County,Florida
Tampa hosted what is reportedly the third largest medical malpractice verdict in history, $217 million, this year. In another case, a plaintiff turned
down what his lawyers suggested could be millions in punitive damages after he lost his wife in an accident, declaring
that there had already been enough pain and suffering.

4. Northern New Mexico

Evidence is mounting that several
counties in Northern New Mexico may be developing
into a Judicial Hellhole. An Albuquerque court rendered
the state’s highest personal injury verdict this year and, in
another case, a family traveled 200 miles from their home
to sue in San Miguel County over a car accident that had
no connection to the area.

5. Delaware.
Delaware courts are generally known to be fair,
but reforms by judges in Madison County, Illinois that
limit forum shopping there have prompted personal injury
lawyers to file asbestos cases in Delaware. Benzene and
pharmaceutical cases followed. This year, the first of the
asbestos cases to reach trial ended in a $2 million verdict.
California.

6. California
ATRF continues to watch Los Angeles County,
formerly known as “the Bank”and San Francisco, which are
repeatedly noted as places of concern by ATRA members.
Small business owners are under fire by plaintiffs’ attorneys
looking for a quick buck with lawsuits alleging technical
violations of accessibility requirements for the disabled.

7. Other areas to watch include Philadelphia, Pennsylvania
and Tucson, Arizona for their lawsuits against doctors;
Mississippi where a prominent plaintiffs’ attorney bribed
two judges for favorable rulings; Cuyahoga County
(Cleveland), Ohio where lawyers reportedly motivated by
profit, not disability rights, use “professional plaintiffs” to
sue small businesses for alleged violations of the Americans
with Disabilities Act; Baltimore, Maryland for its asbestos
litigation; and Providence, Rhode Island for a 2006 ruling
approving of broad public nuisance lawsuits and, this year,
the largest medical malpractice verdict in the state’s history.

Dishonorable Mentions

Dishonorable mentions recognize particularly abusive practices,
unsound court decisions,or legislative action that creates unfairness
in the civil justice system. This year’s dishonorable mentions include:

1. District of Columbia. In a case that made international
headlines, an administrative law judge sued his dry cleaners
for $54 million for misplacing his pants, using the District’s
consumer protection law. The case went on for two years
and took a two-day trial before it was finally dismissed.
Missouri Supreme Court.

2. Missouri Supreme Court.

Missouri will become known as
the “Show Me the Money”state if its high court continues
to issue outlier, pro-plaintiff rulings. This year, the court
permitted individuals that had experienced no injury to
sue for medical monitoring, an approach rejected by most
other states that have recently considered the issue.
Michigan Legislature.

3. Michigan Legislature.
Michigan is generally known as a fair
jurisdiction, but a recent full scale assault on the civil justice
system by personal injury lawyers in the state legislature is
cause for concern. The plaintiffs’ bar is seeking to turn back
the clock on past reforms while creating new ways to sue.

4. Georgia Supreme Court.
This year, the Georgia Supreme
Court invalidated two legislative reforms intended to
improve the fairness of asbestos and medical malpractice
litigation.

5. Oklahoma.
The Oklahoma Supreme Court invalidated
a law requiring a plaintiff to provide an affidavit from a
physician when bringing a medical malpractice case. The
Legislature reacted by rewriting the law to address the
concerns of the court and including that provision in a
comprehensive tort reform package. Governor Brad Henry,
who had long expressed support for such a proposal,
surprised the legislators by vetoing the bill, saying he had
problems with two of its 49 provisions.

Points of Light

There is good news in some of the Judicial Hellholes and beyond. “Points of Light” provide examples of judges adhering to the law and reaching fair decisions as well as legislative action that has yielded positive change. This year’s points of light include:

1. Legislative reforms implemented by
West Virginia
Legislature in 2003 have dramatically reduced medical malpractice premiums and brought new doctors to the state.

2. Ohio Judge Harry A. Hanna
barred the law firm Brayton
Purcell from practicing before his court after he caught
its lawyers involved in a double-dipping scheme in which
the firm blamed its client’s death on asbestos exposure as
a shipyard worker to collect from asbestos trusts and then
blamed his death on smoking cigarettes with an asbestos-
containing filter to try to collect again from Lorillard.

3. Florida appellate courts overturned excessive verdicts,
including a breathtaking $145 billion award against
cigarette manufacturers and a $1.58 billion verdict against
Morgan Stanley.

4. The
Mississippi Supreme Court rejected recognition of
a claim for medical monitoring where a plaintiff has no
identifiable injury, placing it in stark contrast with a ruling
by the Missouri Supreme Court that earned it a dishonorable mention.

5. The Ohio Supreme Court upheld one of the most basic
principles “How a Bill Becomes a Law,” telling the governor that he cannot veto a bill after it becomes law. That is
precisely what Governor Ted Strickland attempted to do to
a tort reform law enacted in the final days of the previous
legislative session.

6. Several courts around the country have held the line on
runaway public nuisance lawsuits, resisting pressure from
personal injury lawyers to create “super tort” that circumvents traditional products liability requirements.

Solutions

Finally, the report briefly highlights several reforms that can
restore balance to Judicial Hellholes, including stopping “litigation tourism,”
enforcing consequences for bringing frivolous lawsuits,
stemming abuse of consumer laws, providing safeguards to ensure
that pain and suffering awards serve a compensatory purpose,
strengthening rules to promote sound science, addressing medical
liability issues to protect access to health care and prioritizing the
claims of those who are actually sick in asbestos and silica cases.

Experience shows that one of the most effective ways to
improve the litigation environments in Hellholes is to bring the
abuses to light so everyone can see them. By issuing its Judicial
Hellholes report, ATRF hopes that the public and the media can
persuade the courts in Hellholes to provide “Equal Justice Under Law”
for all.

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