Stained glass green dome in the Supreme Court Chamber in the Pennsylvania State Capitol building.

WASHINGTON – The Pennsylvania Supreme Court, Philadelphia Court of Common Pleas and Allegheny County Court of Common Pleas made the watch list of American Tort Reform Association's 2016-17 Judicial Hellholes list, issued earlier today.

"We're on the watch list," National Federation of Independent Business Executive Director for Pennsylvania Kevin Shivers told the Pennsylvania Record. "But it means we're sliding in the wrong direction."

Small businesses in Pennsylvania, of which the NFIB represents about 15,000, watch reports like they ATRA's Judicial Hellhole list because can't afford to fight needless and frivolous litigation, which means they often they have a difficult time accessing justice, Shivers said. That tumbles into concerns about making it as a business, which in turn tumbles into job security for the business owners and their employees, Shivers said. 

"This most recent election played that out," Shivers said. "There are people worried about jobs going away, especially here in the rust belt."

Pennsylvania's high court made the watch list, in part, for scandals leading to the resignations of two justices, while the Allegheny County court in Pittsburgh was cited for its reputation for ruling in favor of plaintiffs in asbestos cases.

Making the watch list was an improvement for the Philadelphia Court of Common Pleas, an ATRA press release said, as that judicial body is listed by the ATRA as a recovering Judicial Hellhole. In fact, it once ranked as the No. 1 judicial hellhole in the country on the annual report.

"Philadelphia has significantly improved its litigation environment but continues to serve as a national hub for mass tort litigation," the press release said. "While only a few years ago, nine out of 10 pharmaceutical cases filed in the City of Brotherly Love came from other states, that proportion is now down to 65 percent."

However, the Philadelphia Court of Common Pleas still has a ways to go, so far as the ATRA is concerned. "Still, when a case goes to trial, it often results in a whopper of a verdict," the press release said. "A recent rewrite of the jury instructions for product liability claims may further tilt the scales for the plaintiffs’ bar."

There are very different reasons why the Pennsylvania Supreme Court made the ATRA's latest Judicial Hellholes watch list.

"The Commonwealth’s high court has gone through a series of turbulent scandals, judicial resignations and a flip in the composition of the court," the ATRA press release said. "There is great uncertainty as to whether the new court will take a balanced and sound approach to deciding liability issues or begin catering to Philadelphia’s personal injury bar. Two appeals before the court may point the way to its future course."

Two justices resigned over the contents of emails, tarnishing the reputation of the state's highest court: Justice Seamus P. McCaffery, when sexually explicit emails were revealed, and Justice J. Michael Eakin, over emails involving offensive jokes.

The Allegheny County court made ATRA's watch list for rulings favoring plaintiffs in asbestos cases. "For instance, after one judge issued a ruling that would have limited the defendant’s damages, the case was reassigned to a second judge who subjected the defendant to expansive liability," the press release said.

Problems in Allegheny County don't stop with asbestos cases in the common-pleas court, but also extend to the U.S. District Court for the Western District of Pennsylvania, according to the ATRA.

"In addition, Pittsburgh’s federal court has seen a spike in extortionate lawsuits against businesses of all sizes alleging that they have not provided the vision-impaired with sufficient access to their websites," the ATRA press release said regarding lawsuits brought under the Americans with Disabilities Act.

While the criticism for Pennsylvania seems biting, it is mild compared to the Circuit Court for the City of St. Louis, which ATRA named the nation's most unfair civil court jurisdiction for embracing junk science and generating outlier verdicts.

“This year, thanks to the Show Me Your Lawsuits State’s lax standard for expert testimony, ‘junk science’ is driving groundless lawsuits and monstrous verdicts that have made the Circuit Court for the City of St. Louis the #1 ranked Judicial Hellhole,” ATRA President Tiger Joyce was quoted as saying in the press release.

ATRA issued the first of its yearly Judicial Hellholes lists in 2002 to publicize various abuses within the civil justice system, largely focusing on jurisdictions where courts have been radically out of balance, according to the ATRA's Judicial Hellhole website.

More recently, the Judicial Hellholes list has, on occasion, expanded to include the growing influence of legislative and executive branches of government on the courts. "Of course, most judges do a diligent and fair job for modest pay," the ATRA's Judicial Hellhole website says. "Even in Judicial Hellholes jurisdictions, including some that have received national attention, the clear majority of judges are fair, and the negative publicity can be blamed on a few bad apples.

"Because judges generally set the rules in personal injury lawsuits, and those rulings weigh so heavily on the outcomes of individual cases, it may only take one or two judges who stray from the law to sully the reputation of an entire jurisdiction."

Shivers praised the ATRA for its Judicial Hellhole report. "Kudos to the American Tort Reform Association for having the courage to call out the highest court in Pennsylvania," he said. "And for raising concerns on behalf of all of us who want a good judiciary in our state."

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