COOK COUNTY RECORD

Madison County has once again been dubbed one of the nation’s least fair civil court jurisdictions in the American Tort Reform Association’s (ATRA) annual “Judicial Hellholes” report.

Released Tuesday, the group’s 2013-2014 report put Madison County, as well neighboring St. Clair County, fifth on the list of so-called judicial hellholes. California again came in at No. 1, followed by Louisiana, New York City and West Virginia with South Florida ranking last on the list of six.

The report, which the president of the Illinois Trial Lawyers Association (ILTA) said simply serves as an attempt to prejudice the public and perpetuate myths, also named 10 other jurisdictions to a watch list that leads with Cook County.

Cook County has been on the group’s watch list since 2011, when it dropped the hellhole distinction ATRA branded it with from 2005 to 2010.

This year’s report shows a two-spot drop for Madison County, which came in at No. 3 in last year’s report that excluded St. Clair County. The two downstate counties were ranked together at No. 5 on ATRA’s 2011 hellhole list.

“Both jurisdictions welcome plaintiffs’ lawyers, with Madison County serving as the nation’s busiest asbestos court, while St. Clair [County] hosts pharmaceutical product liability claims from near and far,” the report states.

Besides rankings, ATRA gave out some “dishonorable mentions,” one of which went to Illinois appellate courts for rulings the report states has expanded “workers’ compensation liability beyond its intended scope” and provided “excessive compensation.”

On a positive note, ATRA cited the Illinois Supreme Court’s December 2012 opinion in Fennell v. Illinois Central as a “point of light” in this year’s report.

Reversing a St. Clair County ruling that denied a motion to dismiss a Mississippi man’s asbestos suit , the majority of the high court in Fennell held that Mississippi was a more appropriate forum than Illinois and reminded trial courts to include all private and public interest factors in their forum analyses.

“The high court’s action sends an important message that it will not allow plaintiffs’ lawyers to file lawsuits on behalf of people from around the country in St. Clair or other Illinois counties simply because those Illinois jurisdictions are more likely to produce favorable outcomes than are jurisdictions in plaintiffs’ home states,” ATRA asserts in its report.

In regards to the judicial hellhole rankings, ILTA President Stephen Phillips said ATRA uses its annual report to “perpetuate the myth for their own bottom line.”

He said he believes the group’s goal is to convince members of the public into thinking their counties are “horrific” so when their time comes to serve on a jury, they will follow their prejudices and base their decision “on things other than the facts.”

Phillips said the “skeptic detector” goes off in him when ATRA reports continue to dub Madison County as a judicial hellhole and asbestos litigation magnet.

“If these asbestos manufacturers think Madison County is so bad, why don’t they move to transfer those cases?” Phillips said, noting that defendants in most asbestos suits filed in Madison and St. Clair counties could raise arguments over venue and forum.

Phillips said while defendant companies and groups like ATRA accuse trial lawyers of forum shopping, he believes they don’t try to transfer these cases because the downstate jurisdictions are more efficient and cheaper for them.

“What kind of side deal is going on down there?” he said, adding that “it speaks volumes” that defendants complain about plaintiffs filing suits there, but don’t attempt to transfer them even though the option is available.

In its report, ATRA notes that Madison County “remains the nation’s epicenter for asbestos litigation” and continues to experience an increase in asbestos filings, as well as a “significant uptick” in asbestos-related lung cancer suits.

“Despite having only .008 percent of the U.S. population, Madison County now accounts for one in four asbestos lawsuits filed in the U.S.,” the report states. “Only one in 10 of the lawsuits filed in Madison County is filed by a plaintiff who ever worked or lived in the county.”

Although the asbestos docket in St. Clair County is much smaller than Madison County’s, the report states that it too is seeing a rise in lung cancer suits as the two counties share many of the same asbestos attorneys and firms.

St. Clair County also “draws product liability lawsuits from around the country and has recently become known as an epicenter for lawsuits accusing a pharmaceutical maker of selling the diabetes drug Avandia without sufficiently warning of potential side effects.”

Many of these Avandia suits were filed in groups of less than 100 plaintiffs, ATRA states in its report, adding that this was likely done to avoid the suits from being removed to federal court as “mass actions” under the Class Action Fairness Act, “a law sparked by abuses in the Metro East region.”

When it comes to Cook County’s placement on ATRA’s watch list, the report contends that it is “a preferred place for personal injury lawyers to file their claims.”

While it is no longer listed as a judicial hellhole, ATRA asserts that Cook County “unfortunately, is a jurisdiction that warrants continued close scrutiny.”

Saying that Cook County has become home to consumer class action lawsuit abuse, the report points to federal class action lawsuits accusing Subway of violating consumer protection laws and engaging in deceptive advertising because its “foot-long” sandwiches sometimes measure less than 12 inches.

Similar lawsuits were filed in jurisdictions across the nation, but the report notes that one of Illinois suits was brought by attorney who went on to use the same named plaintiff in the Subway case in a different class action suit over the Fair and Accurate Credit Transactions Act.

The report also cites an October ruling from the First District Appellate Court in Taylor v. Lemans Corp. that ATRA contends may cause Cook County dockets to “get more crowded.”

This case was brought by a Fulton County man who injured himself in a motocross bike accident in Bureau County. The man filed his product liability suit in Cook County against some Wisconsin corporations and a Whiteside County, Ill. company.

The Cook County trial court denied the defendants’ motion to transfer the suit to Bureau County, according to the report. The appeals panel affirmed, saying an analysis of public and private interest factors did not favor transfer and that the defendants failed to prove Cook County would be inconvenient for them.

“The appellate court’s faulty reasoning not only impacts where Taylor’s case is heard, it could have a wide-reaching impact on automobile, pharmaceutical, and other lawsuits that arise in the state,” ATRA states in its report.

It adds, “The ruling lays out a welcome mat for personal injury lawyers to file product liability lawsuits at the Richard J. Daley Center, no matter where in the state the injury occurred.”

Phillips, ILTA’s president, said he does not believe Cook County should be on ATRA’s watch list.

He said he’s been told on numerous occasions that he won’t be able to get a verdict in certain jurisdictions and is better off in Cook County, but hasn’t found that to be the case at all. He said jurors are jurors and the smart ones decide cases on the facts, not on where the case is filed.

In a statement released in response to ATRA’s report, ILTA counters with its own statistics to show that “contrary to popular myth, few Americans file lawsuits.”

For instance, ITLA asserts, the number of civil cases filed in Illinois has been on a steady decline since 2007 and is down nearly 25 percent. It also states that the number of medical malpractice suits is dropping and has decreased nearly 40 percent since 2003.

In addition, ILTA notes that “a significant majority of cases in our courts today involve businesses suing other businesses and businesses suing individuals^.”

Travis Akin, president of Illinois Lawsuit Abuse Watch (I-LAW), an affiliate of ATRA, said in a statement that trial lawyers continue to flock to Madison County with frivolous claims, which clog the court docket and waste taxpayer resources.

In regards to Cook County, Akin said the county’s past ranking as a judicial hellhole and its current status on the watch list hampers job growth.

He also said “the city of Chicago has spent almost $500 million fighting off lawsuits since 2008, with almost $200 million in litigation costs drained from the city’s budget just since last year.”

This money, he claims, could have been used to fill gaps in the city’s budget, such as those that forced teacher layoffs and recent school closures.

Ed Murnane, president of the Illinois Civil Justice League (ICJL), said the legal environment in Illinois “has not changed in a number of years.”

From the standpoint of his group, which aims to protect business interests, Murnane said, “We are not likely to change the judicial environment in Illinois until we bring about some change in the way we select judges.”

He said  politics need to be taken out of the process and suggests the state use bipartisan commissions to nominate candidates, but acknowledges that such reform “is not in the cards this year” as lawmakers gear up for the upcoming election.

An alternative way to change the process, Murnane said, would be to remove the state’s judicial races from the November ballot and include them in the April local election.

He said this could have “a tremendous impact” in drumming up attention for judicial races, which are often overshadowed by statewide and federal races.

“It’s frustrating,” Murnane said. “We are a state that has a lot of potential and  we should not be looked upon as one of the worst judicial environments in the United States.”