Hunton Retail Law Resource

The American Tort Reform Association recently released the 2016–2017 edition of its “Judicial Hellholes” report. This annual report identifies venues it deems least favorable for civil defendants based on recent decisions and verdicts, as well as state laws and policies. The following jurisdictions were named the nine worst “Judicial Hellholes”:

• St. Louis, Missouri
• California
• New York City Asbestos Litigation (NYCAL)
• The Florida Supreme Court and South Florida
• New Jersey
• Cook, Madison and St. Clair Counties in Illinois
• Louisiana
• Newport News, Virginia
• Hidalgo County, Texas

St. Louis vaulted to the top of this year’s list due to increased claims and high jury verdicts in talcum powder cases. To date, talcum powder plaintiffs have recovered $197 million from three St. Louis juries, and more cases are on the court’s docket. The report also cited Missouri’s unwillingness to adopt the Daubert standard and the state’s venue provisions that invite out-of-state plaintiffs as reasons for the explosion of tort claims in the state.

California, a mainstay on the “Judicial Hellholes” list, was cited for a number of issues including several recent Supreme Court decisions. A December decision created a new duty of care owed by employers and premises owners to prevent exposure to asbestos to the immediate family members of their employees. More broadly, an August decision held that a California court could exercise specific jurisdiction over an out-of-state pharmaceutical company despite the fact that the company had neither designed or manufactured the drug in question in the state, and the plaintiffs had not purchased or used the drug in the state.

The report cited the NYCAL’s pro-plaintiff summary judgment and product identification standards, as well as the adverse effects case consolidation has on asbestos defendants. Florida’s lax evidentiary rules and various abuses by plaintiffs’ attorneys kept that state in this year’s report. The report criticized New Jersey’s vague take home-liability doctrine, as well as two of its consumer protection statutes. It noted that New Jersey’s Consumer Fraud Act and TCCWNA have been called “one of the state’s most complicated statutes,” and a “feeding frenzy for plaintiffs’ lawyers,” respectively.

The report cited numerous problems in the other “Hellholes” as well. For example, in Newport News, asbestos plaintiffs maintain an 85 percent winning percentage due to pro-plaintiff evidentiary and causation standards. In Illinois, plaintiffs’ firms contributed $32.25 million to politicians over the last 15 years and top personal injury firms have given $7 million to judicial candidates. Louisiana plaintiffs’ firms were no different, donating $2 million in 2016 alone. The report also cited numerous other issues in jurisdictions across the country.

However, the report also highlighted some positive trends. These included North Carolina and the District of Columbia’s formal adoption of the Daubert standard, the Arizona Supreme Court’s acceptance of the “Learned Intermediary Doctrine,” and Tennessee’s asbestos trust transparency laws, among others.

View the full report.