The American Tort Reform Foundation (ATR) released its 2022-2023 Judicial Hellhole report. In this report, the ATR ranks the eight most dangerous jurisdictions for corporate defendants and their defense attorneys. This year the hellhole ranks had a significant shake up.
The 2022-2023 Judicial Hellholes:
- Georgia. The Peach State is now the number one Judicial Hellhole in the United States. Last year, the Georgia Supreme Court ranked number three. However, this year Georgia in its entirety has taken the infamous throne. The ATR pegged Georgia as its worst offender due to its increasingly expansive liability laws, the courts’ refusal to update the seatbelt gag rule, and a pending case challenging the punitive damages statutory cap.
- Supreme Court of Pennsylvania and the Philadelphia Court of Common Pleas. These two Pennsylvania courts climbed from the number four spot to the runner up. The Supreme Court of Pennsylvania struck down the state venue rule for medical liability lawsuits, which is projected to increase medical liability litigation in plaintiff friendly courts. Pennsylvania is also in the top three for nuclear verdicts in 2022. The legislature further recommended that the state sovereign immunity cap for catastrophic claims be increased, despite finding that the current cap covers 99% of claims.
- California. The golden state fell in rank this year, moving from first to third place. However, the ATR is quick to clarify that this movement has everything to do with the judicial abuses in the top two jurisdictions and nothing to do with any reforms in the California courts. Proposition 65 litigation continues to hinder business by forcing companies to place warning signs on any product containing a trace of any of the 1,000 non-threatening chemicals listed. Many of these chemicals, despite being labeled safe by all but a few reports, are the targets of multimillion dollar advertising campaigns by plaintiff’s attorneys.
- New York. New York moved from second to fourth place. Again, this is a result of the significant problems in the top two jurisdictions rather than any legal reforms. New York’s nuclear verdicts surged; the state has the second most nuclear verdicts per capita in the nation. New York’s new law, CPLR 4016(b), is a main factor in this surge. CPLR 4016(b) allows plaintiff attorneys to request the jury give a specific dollar value for any damages element. This law is manipulated when plaintiff attorneys give outrageous damage values to juries in an “anchoring tactic” to inflate damage valuations.
- Cook County, Illinois. Cook County has held onto the number 5 spot from the previous year. Cook County’s Biometric Information Privacy Act (BIPA), first enacted in 2008 but fully exploited starting in 2015, creates a legal right for anyone whose biometric data, such as fingerprints or facial scans, was sold or stored without significant disclosure. Thus, there is a flood of no-injury litigation; the courts have acknowledged this problem but point to the legislature for correction. Attorneys also continue to run to Cook County’s plaintiff friendly asbestos courts.
- South Carolina Asbestos Litigation. In its inaugural Judicial Hellholes appearance in 2021, South Carolina Asbestos Litigation was in last place. This year it has moved up to sixth place due, in part, to the Court of Appeals affirming the use of the “cumulative dose theory.” Under this theory, experts may testify that every exposure can lead to asbestos-caused illnesses. This results in an easier path for Plaintiffs to establish causation.
- Louisiana. Louisiana has fallen from 6th to 7th place. Louisiana remains plagued by lawsuits in which parishes sue energy companies claiming environmental damage. The courts also continue to suffer from judicial misconduct. However, the Louisiana Supreme Court made changes to Rule XXIII in 2021 and now require judges indicted or charged with misconduct to cover the costs of appointing a judge to cover their docket.
- The City of St. Louis. St. Louis fell one spot in the rankings, going from seventh to eighth place. St. Louis, like California, has been flooded with litigation due to the weak standard for scientific evidence. The city also has a longstanding tradition of nuclear verdicts. The nuclear verdicts are partly due to the courts’ tolerance for plaintiff attorneys’ anchoring tactics, resulting in exaggerated damage figures.
The 2023 Watchlist and Notable Absences
The ATR listed the Florida legislature, New Jersey, and the Texas Court of Appeals for the Fifth District on this year’s Judicial Hellhole Watchlist. Florida taxes its residents $812.52 for an annual “tort tax.” This tax, along with excessive tort costs, has kept the Florida legislature on the Judicial Hellhole Watchlist. New Jersey makes the list due to the powerful plaintiffs’ bar that frequently petitions the state legislature. Last, the Texas Court of Appeals for the Fifth District should be surveilled due to its propensity to disregard state and federal precedent. The court’s disregard for precedent resulted in the Texas Supreme Court overturning five Fifth Court decisions in the first half of 2022 alone.
Madison County and St. Clair County, Illinois are notably absent from the Judicial Hellhole rankings this year but they both make an appearance in the dishonorable mentions. Madison County has earned its spot as a dishonorable mention due to its distinction as plaintiffs’ favorite jurisdiction for asbestos claims. However, there looks to be a decline in Madison County filings as more plaintiffs shift to filing in St. Clair County with St. Clair County experiencing a 50% increase in asbestos claims in 2021.
The Mass Tort Machine
Mass Tort lawsuits have become money machines for plaintiffs’ firms. Plaintiff attorneys target Judicial Hellholes by spending significant resources on advertising in these jurisdictions to entice potential plaintiffs to file claims. They then put dubious experts in front of the jury, a practice that continues to be tolerated in hellhole jurisdictions. This results in a mass of lawsuits intended to overwhelm defendants and pressure them to settle baseless claims. Corporate defendants who are sued in any or all of these jurisdictions need to engage competent defense counsel who are familiar with the intricacies of the local courts as well as the plaintiff’s firms that practice there.