2021-2022 Judicial Hellholes Report
The 2021-2022 Judicial Hellholes® report shines its brightest spotlight on eight jurisdictions 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® SUMMARIES
#1 CALIFORNIA “The Golden State” once again regains its position as the No. 1 Judicial Hellhole® thanks to its relentless pursuit of liability-expanding principles. California’s appellate courts are the first to hold e-commerce companies strictly liable for products sold on their sites. Baseless Prop-65 lawsuits thrive in courts and the volume of litigation continues to skyrocket. Small businesses are weighed down by frivolous Private Attorney General Act (PAGA) and Americans with Disability Act (ADA) lawsuits and the state’s unique Lemon Law provides windfalls for plaintiffs’ lawyers. In addition to the troublesome courts, the activist attorney general continues to push an expansive view of public nuisance law and the legislature ignores the need for reform and pushes a liability-expanding agenda.
#2 NEW YORK The “Empire State” is mounting a strong challenge for the No. 1 spot as the state’s leadership seems intent on creating the worst legal climate in the nation. The gap between California and New York is narrow, as the two jurisdictions battle it out for the most “no-injury” class action lawsuits and the most claims under the Americans with Disabilities Act. New York also has an activist attorney general that is on the front lines of the battle between climate change activists and energy companies. The state is a preferred jurisdiction for asbestos litigation and, like California, the legislature ignores the need for reform and continues to push a liability-expanding agenda.
#3 GEORGIA SUPREME COURT The significant deterioration of the “Peach State’s” civil justice system has propelled the state supreme court to its highest-ever ranking at No. 3. The Georgia Supreme Court eliminated apportionment of fault in certain cases and expanded bad faith liability for insurers. It also adopted an expansive view of jurisdiction of its courts over out-of-state businesses. Nuclear verdicts are bogging down business and third-party litigation financing is playing an increasing role in litigation.
#4 PHILADELPHIA COURT OF COMMON PLEAS & THE SUPREME COURT OF PENNSYLVANIA The “Keystone State’s” fall from the No. 1 position was in no way a reflection of progress or improvements made in the state, but rather indicative of the number of issues plaguing other jurisdictions. The Philadelphia Court of Common Pleas continues to be a preferred court for mass torts. Plaintiffs from across the country flock to the Court of Common Pleas because of its reputation for excessive verdicts and its “open door” policy to out-of-state plaintiffs. The state’s comparative fault system is in jeopardy and the Pennsylvania Supreme Court issued several liability-expanding decisions, including one that will spur more consumer class actions.
#5 COOK, MADISON AND ST. CLAIR COUNTIES, ILLINOIS This trio of Illinois counties is a magnet for asbestos litigation and “no-injury” lawsuits stemming from the state’s Biometric Information Privacy Act (BIPA). Making matters worse, the Illinois General Assembly is one of the most plaintiff friendly legislatures in the country and Governor J.B. Pritzker supports a liability-expanding agenda to the detriment of Illinois citizens and small businesses.
#6 LOUISIANA The optimism expressed in last year’s Judicial Hellholes® report that Louisiana’s litigation environment was moving in the right direction faded in 2021. State leadership impeded progress and the state’s civil justice system failed to improve. 2021 brought a veto of a much-needed bill to rein in deceptive lawsuit advertising practices and coastal litigation continues to drain state resources. Judicial misconduct appears to run rampant across the state and the investigation continues into a massive scheme to defraud commercial truckers and insurers in Louisiana courts.
#7 CITY OF ST. LOUIS A perennial Judicial Hellhole®, the City of St. Louis once again finds itself on the list; however, the “Show-Me-Your-Lawsuit” state has made important progress through legislative reforms. While the legislature has prioritized civil justice reform, there is more work to be done. The City of St. Louis Circuit Court is notorious for allowing blatant forum shopping and permitting “junk science” to permeate the court room. Additionally, there is uncertainty around the state’s standard for punitive damages, which is dangerous in a court known for excessive awards.
#8 SOUTH CAROLINA ASBESTOS LITIGATION A newcomer to the Judicial Hellholes® list in 2020, South Carolina’s consolidated docket for the state’s asbestos litigation has developed a reputation for discovery abuse, unwarranted sanctions, low evidentiary requirements, and multi-million-dollar verdicts. As a result, the state has become a hot spot for asbestos claims. While the volume of litigation dramatically decreased this year, in large part due to COVID-19 shutdowns, the court’s tendency to favor plaintiffs continues.
Beyond the Judicial Hellholes®, this report calls attention to five additional jurisdictions that bear watching due to their histories of abusive litigation or troubling developments. These jurisdictions may be moving closer to or further away from a designation as a Judicial Hellhole®, and they are ranked accordingly.
FLORIDA LEGISLATURE Despite all the work done by the Florida Supreme Court and Governor Ron DeSantis to mitigate lawsuit abuse, much-needed reforms continue to stall in the Florida Legislature. Without these reforms, the trial bar is still able to capitalize, and they know it. Issues that need to be addressed include inflated medical damages, bad faith reform, litigation financing, and attorneys’ fees multipliers.
COLORADO The “Centennial State” remains on the Watch List due to its courts allowing scientifically dubious expert testimony and the state legislature’s propensity to enact liability-expanding legislation that targets the state’s employers.
TEXAS’S COURT OF APPEALS FOR THE FIFTH DISTRICT A newcomer to the report, the Dallas court has developed a reputation for liability-expanding decisions. The court disregarded the state’s longstanding prohibition on introducing evidence about different products and dissimilar accidents and held a defendant liable for injuries caused by a product that exceeded safety standards. The Texas Supreme Court overturned the court’s failure to apply the apex doctrine, a rule that prevents harassing high-level executives by subjecting them to depositions where they have no first hand knowledge.
MARYLAND Maryland’s legislative session was disappointing, but not disastrous. Lawmakers abandoned two bills that would have provided much needed COVID-19 liability protections, but no significant liability-expanding bills were passed. Despite the Court of Special Appeals’ reversal of the largest medical malpractice verdict in U.S. history, Maryland’s medical malpractice climate remains unstable. The Baltimore Circuit Court is steadily working through the decades-long asbestos backlog, which primarily consists of stale, meritless filings from the notorious Law Office of Peter Angelos.
MINNESOTA After spending three years on the Judicial Hellholes® list, Minnesota drops down to the Watch List thanks to inactivity caused by COVID-19 shutdowns rather than any reforms or improvements by the courts or legislature. Minnesota still has some of the most plaintiff-friendly medical malpractice laws in the country, a lenient evidentiary standard that allows for admission of junk science and is facing the effects of a 2020 Minnesota Supreme Court ruling allowing third-party litigation financing. In addition, 2021 brought disappointing litigation developments in the “Gopher State” relating to climate change and strict liability for e-commerce platforms.
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 Utah Supreme Court’s decision to embrace the theory of ‘take home exposure’ theory in asbestos litigation and the lack of transparency surrounding the Kentucky Attorney General’s hiring of contingency fee lawyers to pursue the state’s pension plan litigation. Additionally, an Ohio federal court earned a last-minute nod when it improperly expanded public nuisance law in the opioid litigation.
Points of Light
This year’s report again enthusiastically emphasizes the good news from some of the Judicial Hellholes® states 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 Missouri Supreme Court upheld the state’s statutory limit on noneconomic damages in medical liability cases, the Texas Supreme Court prevented ‘phantom damages,’ the Oklahoma Supreme Court rejected the improper expansion of public nuisance law, and the Mississippi Supreme Court protected the ability to receive a fair trial and rejected junk science. Additionally, the report shines a bright spotlight on all the positive steps taken by the Florida Supreme Court and Governor Ron DeSantis to establish a more fair and balanced civil justice system in the state of Florida.
In addition to court actions, five state legislatures enacted significant, positive civil justice reforms in 2021, including elimination of ‘phantom damages’ in Montana, and improving the fairness of asbestos litigation in North Dakota, Tennessee and West Virginia. West Virginia also established an intermediate court of appeal and enacted legislation allowing juries to consider whether a driver or passenger wore a seat belt in civil cases.
Additionally, 20 states enacted laws that protect healthcare providers, businesses, schools, manufacturers of personal protective equipment, and others from meritless claims during the COVID-19 pandemic. These laws strike a balance that protects public safety without jeopardizing the ability of businesses to operate and reduce the threat that individuals and organizations that are providing vital medical care, products, and services during the pandemic will be rewarded with a lawsuit.
MASS ARBITRATION… THE NEW CLASS ACTION? In recent years, arbitration has come under attack by the plaintiffs’ bar and its allies. Legislatures and courts in Judicial Hellholes® like California have
tried to limit the use of arbitration, specifically in the employment law context. The plaintiffs’ bar has even been able to get Congress to consider limiting arbitration through the Forced Arbitration Injustice Repeal Act (FAIR) Act. While one faction of the trial bar seeks to eliminate arbitration entirely, another more entrepreneurial group seeks to profit from the process. Historically, arbitration preserved claims as individual matters – not ones that are treated as a monolithic “class.” That distinction, however, may be changing with recent cases being handled by plaintiffs’ lawyers as “mass arbitrations.”
COVID-19 LITIGATION AND LIABILITY PROTECTION During the COVID-19 pandemic, businesses are struggling to operate and reopen safely, healthcare providers are treating patients with limited beds and staff, and manufacturers have shifted their operations to make needed personal protective equipment. The last thing they need to worry about is more lawsuits. To help reduce this concern, many states are providing assurance to businesses and others that if they act responsibility, they will have some degree of liability protection. Many governors acted early on through executive orders, most of which addressed only healthcare liability. State legislatures followed with broader laws. Almost two years into the pandemic, employers now face additional liability concerns due to vaccine mandates.
COMMEMORATING THE 20TH ANNIVERSARY OF THE JUDICIAL HELLHOLES® REPORT The American Tort Reform Foundation began publishing its annual Judicial Hellholes® report and rankings in 2002. Over the past twenty years, some have heeded the warning of being named a Judicial Hellhole®, actively making changes to rebalance their civil justice systems. Others, however, remain in the dregs, making little improve-ment or even becoming more deeply entrenched, year after year. Introducing the “Escaped” List and the
“Everlasting Judicial Hellholes®”