Cook County has avoided a spot on the list of America’s worst “judicial hellholes” this year. However, the county’s civil courts still received a “dishonorable mention” in an annual report calling attention to some of the country’s most litigious local court systems.
On Dec. 5, the American Tort Reform Association released its 2018-2019 “Judicial Hellholes” report, ranking and highlighting state and local court systems it believes are most in need of reform. The report describes these courts as places “where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.”
ATRA said the report is based on “real-time monitoring of Judicial Hellhole activity year-round” at their website, JudicialHellholes.org, as well as “feedback gathered from ATRA members and other firsthand sources.”
The report prominently featured nine states, cities, counties and other court systems it describes as “most unfair.”
While Cook County has from time to time landed on that list of top litigation hotspots, in Illinois, only the courts in downstate Madison and St. Clair counties received such billing in this report. Together, they ranked No. 8 on ATRA’s “Hellholes” list.
Last year, ATRA ranked Cook and Madison counties together at No. 7 among "Judicial Hellholes."
Madison and St. Clair Counties
Madison and St. Clair counties earned their rank as the eighth worst judicial hellhole due to an increase in “no-injury” class action lawsuits, a “hyper-litigious culture” and “grim” prospects of legal reform in Illinois.
“As of 2018, the yearly fiscal losses due to excessive tort litigation are estimated at $397.2 million in state revenues and $335.4 million to local governments. For a state with as dire of a financial situation as Illinois, these costs are extremely concerning,” the report states.
Both Madison and St. Clair counties see a “high volume of litigation overburdening the judicial system,” according to the report.
St. Clair County has become a magnet for “no-injury” class action lawsuits, which target manufacturers for their “all natural” labeling. So far, 21 “no-injury” cases have been filed in the jurisdiction.
“The Nelson & Nelson law firm of St. Clair County is leading the charge, as they have filed several ‘unnatural’ class action lawsuits over the past few years,” the report states.
Most of the “no-injury” cases filed by Nelson & Nelson have been voluntarily dismissed. In one case, the firm received $245,000 in fees and the class received nothing.
“As is most often the case, plaintiffs’ lawyers walk away with hundreds of thousands of dollars in fees, while consumers are left with nothing but higher prices and fewer choices,” the report states.
Attorney David Nelson of Nelson & Nelson filed six “all natural” class actions on behalf of a single plaintiff, including a suit alleging Schnuck Markets falsely advertised the amount of peanuts in a can of mixed nuts.
Madison County, on the other hand, remains a hotspot for asbestos lawsuits, especially for out-of-state plaintiffs. The asbestos filings for 2017 was a 13.4 percent drop from the prior year with 1,128 cases filed. However, Madison County had nearly triple the number of asbestos cases filed in the next closest jurisdiction with Baltimore seeing 495 asbestos cases filed.
Madison County has had a total of 6,071 asbestos cases filed with 68 percent filed on behalf of out-of-state plaintiffs, according to the report.
“Plaintiffs flock to the Madison County courthouse because of its plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims survive,” the report states.
St. Clair County has also seen a sharp increase in asbestos case filings, shooting up 200 percent in 2017 over 2016 with a total of 207 asbestos cases filed.
“A large reason behind this sudden increase is the Missouri legislature’s enactment of a stronger standard for the admissibility of expert testimony in March 2017,” the report states.
St. Louis saw a drop in asbestos filings by 40.3 percent as St. Clair County saw a rise.
“The Daubert standard requires judges to act as ‘gatekeepers’ to prevent ‘junk science’ testimony from being heard at trial, making it much more difficult for plaintiffs’ attorneys to be successful with dubious asbestos claims,” the report states. “The vast majority of the asbestos lawsuits now filed in St. Clair allege that exposure to asbestos caused a person to develop lung cancer, which has other causes.”
Madison and St. Clair counties have also earned their spots on the Judicial Hellholes list due to “trial-lawyer driven opioid litigation.”
In St. Clair County, State’s Attorney Brendan Kelly filed an opioid lawsuit against Purdue Pharma and Abbot Laboratories. He argues that deceptive advertising and consumer fraud has contributed to the opioid and heroin epidemic in St. Clair County.
Madison County has not filed an opioid lawsuit, but Madison County State’s Attorney Tom Gibbons is mulling over the decision. While Gibbons has discussed concerns and details of a potential opioid lawsuit, he has made it clear that the authority to make the decision remains with him.
Judiciary Chair Mike Walters said he did not want opioid litigation to resemble Madison County’s notorious asbestos docket, calling it a “terrible drain.”
“The opioid epidemic is a serious public health crisis, but regulation through litigation is not the solution,” the Hellholes report states. “The public health interests need to be the main priority, not the personal financial interests of the trial bar, which become the focus when outside private attorneys are hired to represent government entities.”
The report’s authors highlighted comments from Madison County Board member and Judiciary Chair Mike Walters, who lamented the “terrible drain” litigation has exacted on his county’s economy.
“I talk to business owners and lobbyists who represent business owners and they would not come here for anything,” Walters said in the report. “I’m sorry I get flustered when I hear people say we are bringing in money. I’m sorry we are losing.”
While not ranking in the Top 10, Cook County still received a mention in the report. ATRA particularly pointed to Cook County’s status as a destination of choice for lawyers bringing class actions against employers and others under Illinois’ Biometric Information Privacy Act. While the law establishes Illinoisans’ privacy rights concerning their fingerprints, retinal scans and other identifying biometric information, ATRA said lawyers have exploited the law’s private right of action to bring dozens of class action lawsuits against businesses of all sizes and varieties.
These lawsuits have targeted Facebook and other social media and photosharing sites over so-called photo “tagging” features. But most recently, the lawsuits have particularly targeted employers for scanning employee fingerprints for use with employee punch clock systems to track hours worked and reduce timesheet fraud. Under the law, businesses could face damages of $1,000-$5,000 per violation.
In recent months, an Illinois appellate court ruled such no-injury lawsuits under BIPA shouldn’t be allowed, finding a mother couldn’t sue amusement park operator Six Flags for requiring her teen son to scan his fingerprints to use his season pass at Six Flags Great America in Gurnee.
But the Illinois Supreme Court is reviewing that decision, and during recent oral arguments, appeared to doubt Six Flags’ contention the fingerprint scan itself should be considered legally harmless.
ATRA said such a ruling would “open the floodgates” to BIPA class actions, particularly in Cook County. The report noted from August 2017-March 2018, Cook County courts received more than 40 BIPA class actions, and in June, eight new BIPA lawsuits were filed immediately following the state Supreme Court’s decision to take up a review of the appellate court’s decision in the Six Flags case.
ATRA also noted the failure by Illinois lawmakers to “advance commonsense reforms,” including legislation to eliminate so-called “venue shopping,” a process in which lawyers seek to bring litigation in jurisdictions with a reputation for being friendly to plaintiffs.
“Companies know that they do not face a fair and balanced playing field in the courtrooms, and as a result, choose not to do business in the state, taking their revenue and jobs with them,” ATRA said.
Across the U.S.
Nationally, the entire state of California claimed the top spot on ATRA’s list.
“California courts have adopted novel theories of liability and unique California laws and expansive court decisions have fostered abusive ‘no-injury’ litigation,” ATRA wrote. “As a result, the state has become a magnet for class actions targeting food and beverage marketing and disability access lawsuits.”
The report also highlighted California’s new data privacy law, which it called “plaintiffs’ lawyer gold.”
The state of Florida ranked No. 2.
ATRA noted the state’s Supreme Court "issued a series of liability-expanding opinions that invalidated civil justice reforms including rejection of the Daubert standard for expert witness testimony."
The Daubert standard is applied in all federal courts and in more than 30 states. It allows the defense, or a plaintiff, in any case to question more closely the qualifications of an expert witness.
“Florida had a great opportunity to improve its ranking as a Judicial Hellhole, and they squandered it,” said ATRA President Tiger Joyce. “The Florida legislature passed legislation in 2013 adopting the Daubert standard requiring judges to ensure that expert testimony in the courts is based on generally accepted scientific and technical principles, and this year the Florida Supreme Court deemed the bill unconstitutional, opening the door for ‘junk science’ in its courtrooms.”
New York City ranked third.
“Courts in New York City are filled with frivolous consumer class actions and judges permit plaintiff-friendly procedures and high awards in asbestos cases,” ATRA wrote in the report. “The state high court also further stacked the deck against defendants in personal injury litigation. Hedge funds are increasingly investing in New York litigation and driving some of the most expensive cases in the state.”
They were followed by city courts in St. Louis, which were faulted for decisions against ending venue shopping and allowing “plaintiffs’ lawyers to introduce junk science in the city’s talc litigation.”
Rounding out the list of top “Judicial Hellholes” were: the state of Louisiana; the Philadelphia Court of Common Please; the New Jersey state legislature, described as “the most plaintiff-friendly legislature in the country;” and the Twin Cities of Minneapolis and St. Paul, Minn.
“A newcomer to the Judicial Hellholes report, the Twin Cities’ position was solidified after the attorney general mishandled a lawsuit against a large Twin Cities employer and a Hennepin County trial judge stripped a company’s defenses,” ATRA wrote. “The lower courts appear to be following the lead of the state’s high court after it subjected property owners to expanded liability in 2018 and rejected a measure intended to remove ‘junk science’ from the state’s courts.”
ATRA said it is watching the state supreme courts of Colorado, Georgia, Montana, Pennsyvania and West Virginia, as well as the cities of Newport News, Va., and the Ohio 8th District Court of Appeals.
Heather Isringhausen Gvillo and John Breslin contributed to this report.