The American Tort Reform Foundation issued its annual Judicial Hellholes report this week, identifying courts or legislatures in California, Florida, New York, Missouri, Louisiana, Pennsylvania, New Jersey, Illinois, and Minnesota among the nation’s “most unfair” in their handling of civil litigation.
In this year’s Judicial Hellholes, judges failed to reject “junk science” and allowed consumer class-action lawsuits to proceed with no actual injury or loss demonstrated. These same courts loosely applied venue laws and allowed blatant “forum shopping.” Lawyers flocked to these jurisdictions to file cases, taking advantage of plaintiff-friendly rules and procedures.
Injury used to be a core requirement of filing a lawsuit, but trial lawyers chip away at that requirement every day. Claims brought are based on speculation, risk of future harm, or creative theories of potential financial loss. Courts in California, New York City, St. Louis, and St. Clair County, Illinois, are filled with lawsuits challenging food advertising and packaging, but no one was harmed or misled. Lawyers filing these claims have a lucrative practice and misuse vague consumer protection laws. Meanwhile, judges are reluctant to dismiss absurd claims.
Judges in Judicial Hellholes further stack the deck against defendants by refusing to adopt the Daubert standard for expert testimony, allowing “junk science” to infiltrate courtrooms. The U.S. Supreme Court directed judges to serve as “gatekeepers” to weed out “junk science” and prevent its use as evidence, but many judges fall short.
Supreme Courts in Minnesota and Florida rejected the Daubert standard this year, refusing to align themselves with federal courts and more than 30 state courts. Florida’s legislature enacted an expert evidence statute in 2013 based on the Daubert process, but in October, Florida’s Supreme Court deemed it unconstitutional. A month later, Minnesota’s Supreme Court refused to enact an evidence rule based on Daubert, even after the court’s advisory committee recommended adoption.
California and St. Louis judges allowed “junk science” to support massive damage awards this year. St. Louis was home to a multibillion-dollar judgment against Johnson & Johnson in a class action lawsuit claiming asbestos in talcum powder caused ovarian cancer, though the American Cancer Society has stated the link is “mixed” and “biased.” Then a California jury handed down a $289 million damage award in a case based on the unsubstantiated theory that Roundup causes cancer.
Trial lawyers flock to these jurisdictions and depend on judges’ failure to enforce venue rules, thereby permitting blatant forum shopping. For example, in St. Louis, 17 of 22 plaintiffs in the recent talc case were from out-of-state, and in the Philadelphia Court of Common Pleas, more than 80 percent of the plaintiffs in their Complex Litigation Center are not residents of Pennsylvania. This unfair practice robs taxpayers of their right to a speedy trial and unnecessarily clogs local courts with out-of-state cases, draining state resources.
Like other businesses, trial lawyers market their services. In the second quarter of this year, trial lawyers spent $186 million nationwide on TV advertisements, focusing heavily on California, New York, Missouri, and Florida. California Bay Area and Los Angeles trial lawyers spent a combined $9.4 million to subject viewers to nearly 60,000 ads, while in New York City, they spent $6.4 million on a smaller barrage of 22,000 TV ads inviting New Yorkers to join class action lawsuits. The larger the class, the more pressure on defendants to settle — and without needing to show injury or loss, it becomes easier to find potential class members.
More than a mere irritant, these ads are unexpectedly harmful. The Food and Drug Administration documented that 61 patients stopped using their prescribed blood-thinner medications in 2016 after viewing these commercials. Six of those 61 patients died — three from stroke, one from cardiac arrest, one from a pulmonary embolism, and one from an unreported cause.
Where does it end? Trial lawyers pour millions of dollars into advertisements to find potential plaintiffs just to file abusive lawsuits.
Let’s restore integrity to these unfair civil justice systems and encourage legislatures to adopt reforms and prevent further abuses. It is ATRA’s hope that this year’s Judicial Hellholes report serves as a catalyst for change in the nation’s most imbalanced courts.
Sherman “Tiger” Joyce is president of the American Tort Reform Association in Washington, D.C.
