In the 15 years that the American Tort Reform Foundation has published its annual Judicial Hellholes report, spotlighting some of the least fair civil court jurisdictions in the country, Virginia’s courts have rarely been mentioned. The state’s historic willingness to promote business and thus boost economic growth and job creation has generally worked to contain certain trial lawyers and judges who would rather promote lawsuit abuse.
But for the past two years, our report has cited the Superior Court in Newport News on its “Watch List” of jurisdictions that are unfair but not so bad as to rank among the nation’s worst. And, after additional research and a continuing string of blatantly one-sided rulings against asbestos defendants, my organization has decided to make a rare mid-year addendum to our report and now rank Newport News among those Judicial Hellholes.
Despite earlier warnings, Newport News has done nothing to end its plaintiff-favoring bias in asbestos litigation. Judges continue to apply the law unfairly with troubling results. Asbestos defendants lose 85 percent of the time if they choose to go to trial instead of giving in to plaintiffs’ settlement demands before trial. This losing percentage for defendants is far higher than the nationwide average of 52 percent, and even higher than in other notoriously plaintiff-friendly asbestos jurisdictions like New York City (81 percent) and Baltimore (76 percent).
In short, asbestos defendants in Newport News are denied evenhanded justice with an extremely lax causation standard and evidentiary hurdles that impose frightening double standards designed to hamstring defense counsel and force quick settlements.
Asbestos claims in Newport News are pursued under maritime law and its “substantial contributing factor” standard of causation. And judges there seem perfectly willing to let local lawyers redefine elements of that standard ever more loosely.
Juries in Newport News are instructed that any exposure to an asbestos fiber or dust particle, as long as the exposure was “real, not imaginary,” qualifies as a substantial contributing factor in an alleged illness. So, effectively, all a plaintiff has to do is identify a defendant’s product as one to which he was briefly exposed and the judge will keep the defense from arguing that the alleged exposure was too brief or insignificant to cause illness.
This causation standard stands in stark contrast to that set by the Virginia Supreme Court for non-maritime claims in 2013. The state’s high court ruled that a plaintiff exposed to multiple sources of asbestos must show that the exposure stemming from a given defendant’s product was sufficient to cause his condition in absence of other exposures.
On top of the lower causation standard, Newport News courts largely prohibit defendants from presenting scientific evidence that shows lower levels of asbestos exposure may pose no significant health risk. Certain products such as gaskets and boiler seals contain a type of asbestos that is much less likely to become airborne than the type found in thermal insulation products, but such evidence isn’t permitted. Also barred is defense evidence about what a plaintiff’s employer may have known, done or failed to do about alleged asbestos exposures.
Of course, Newport News asbestos defendants can always appeal their cases to Virginia’s Supreme Court — assuming they’re not forced into bankruptcy first. But such appeals add to defendants’ legal costs, and the problems of a stacked deck back in Newport News will stubbornly remain in any case.
Furthermore, Virginia judges and lawmakers should understand that asbestos defendants dragged into court in Newport News aren’t the only ones who can suffer from the patently unfair trials conducted there. Virginia’s hard-earned reputation as a state that wisely cultivates business investment and growth can be tarnished, even by a single court that refuses to administer civil justice in a fair and balanced manner.
A midyear designation of Newport News as a Judicial Hellhole makes clear that asbestos defendants’ prospects there will remain bleak until judges or lawmakers in Richmond take action. It’s time to stop anti-business judges in Newport News from brazenly favoring asbestos plaintiffs and undermining in the eyes of business executives Virginia’s attractiveness as a place to invest, expand and relocate.
Tiger Joyce is the president of the American Tort Reform Association, based in Washington, D.C. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
