WASHINGTON – In the latest annual report of “Judicial Hellholes” released today by the American Tort Reform Association, Pennsylvania courts have taken the No. 1 ranking for the second consecutive year – due to high-dollar mass tort verdicts, expanding medical liability litigation and a lower reliability standard for expert witness evidence, among other issues.
The American Tort Reform Association’s yearly report ranks legal jurisdictions considered unfriendly to businesses and where they are perceived not to be given a fair shake in court.
In last year’s report, the Philadelphia County Court of Common Pleas ranked No. 1, with it now retaining its spot from the top of the list in 2019 and adding the Supreme Court of Pennsylvania to stand alongside it.
The report cites “a pervasive, liability-expanding approach that has permeated through the state’s civil justice system”, featuring an open-door policy for out-of-state plaintiffs, large plaintiff jury verdicts, expansion of liability for medical and asbestos defendants and the retaining of the Frye standard in judging scientific expert witnesses, as just four reasons the Philadelphia County Court of Common Pleas and the Supreme Court of Pennsylvania are on top of the list.
Philadelphia County Court of Common Pleas Judge Kenneth J. Powell Jr. made news headlines in July, when it was revealed that his mother was suing Johnson & Johnson and Bayer for injuries connected to her use of the companies’ blood-thinning drug, Xarelto.
That wouldn’t necessarily be controversial in and of itself, but what made the discovery notable was that Powell was presiding over litigation for plaintiffs alleging personal injuries from the use of pelvic mesh products, where Ethicon, a Johnson & Johnson subsidiary, was the defendant company.
Ethicon called on Powell to recuse himself to avoid a potential conflict of interest, and he refused. When Ethicon filed a petition to the Supreme Court of Pennsylvania to remove Powell from the case, the court declined to do so.
Pelvic mesh products are widely used to address stress urinary incontinence in women and despite receiving FDA approval, plaintiffs argue they were defectively-designed. To date, Philadelphia juries have handed down verdicts penalizing Ethicon to the tune of $345 million and counting for pelvic mesh injuries.
Meanwhile, in October, the Supreme Court of Pennsylvania also rendered a key decision in pelvic mesh litigation when it turned away from U.S. Supreme Court precedent in Bristol-Myers Squibb v. Superior Court of California, in issuing its permission for Indiana resident Patricia Hammons to proceed with her case against a New Jersey-based company in Hammons v. Ethicon.
In Bristol-Myers-Squibb, a ruling lauded by companies facing injury claims, it was decreed that out-of-state plaintiffs are not permitted to sue companies where the defendants are not “at home” or haven’t done business.
Judge Powell was also a key component in the Philadelphia County Court of Common Pleas taking the No. 1 ranking in last year’s “Judicial Hellholes” report, presiding over a bifurcated Risperdal trial in Murray v. Janssen Pharmaceuticals.
Risperdal was originally developed for use by adults diagnosed with schizophrenia. Maryland plaintiff Nicholas Murray was prescribed Risperdal at the age of nine in 2003, for off-label treatment of symptoms associated with his Asperger’s Syndrome. Like other plaintiffs who stepped forward, Murray also developed gynecomastia.
Plaintiff counsel sought to prove that Risperdal’s makers, Johnson & Johnson subsidiary Janssen Pharmaceuticals, knew and deliberately disregarded evidence that it could lead to gynecomastia, the development of female breast tissue, in young males, and nonetheless promoted the drug off-label and released the drug into the open market for use by patients without disclosing the side effects.
There, Janssen was hit with a record-shattering $8 billion punitive damages verdict. It was later reduced to $6.8 million on appeal.
Counsel for Janssen accused Powell of showing a clear bias towards the plaintiff and asked he recuse himself from the requested retrial, a request which Powell denied. Appeals in the case remain pending.
In addition to high-dollar mass tort verdicts, the “Judicial Hellholes” report pointed to a number of other issues as further proof for two Pennsylvania courts taking the top spot on the list this year:
• $394 million being paid out in medical malpractice cases statewide (about $30.79 per state resident);
• Signs that forum-shopping could return to medical malpractice cases with a discussed proposal of easing restrictions on the filing of such litigation;
• In Walsh v. BASF Corp., the state Supreme Court’s upholding of the Frye standard for evaluating the fitness of scientific expert witness testimony, where scientific methods that are “generally accepted” by the scientific community are admissible – as opposed to the Daubert standard, which requires the court to first make an assessment of whether or not the testimony is based on “scientifically valid reasoning or methodology, and whether the testimony can be applied properly to the issue at hand.”; and
• The city’s continuing to be a magnet for asbestos litigation. ATRA explained that overall, asbestos lawsuit filings in the U.S. as a whole decreased 13% in the first half of the year, but in Philadelphia, increased nearly 12%.
The Philadelphia County Court of Common Pleas and its Complex Litigation Center have long been a sanctuary for out-of-state plaintiffs. The percentage of claims belonging to out-of-state plaintiffs has traditionally been in the high 80s.
Presently, about 86% of these cases were filed by out-of-state plaintiffs.
The remainder of ATRA’s list of “Judicial Hellholes” is as follows:
2. New York City – ATRA cited the rescinding of COVID-19 protections against health care entities, alleged improper interpretation of the Americans with Disabilities Act of 1990 by plaintiffs’ lawyers, excessive and high-dollar injury verdicts damaging the state economy and the “legitimizing” of third-party litigation funding in its remarks about New York City.
“New York State buckles under the weight of increasing taxes, the highest tort costs per household, the exorbitant cost of living, the highest taxpayer exodus, and the devastating financial impact of COVID-19,” the report says. Moving up one place on the list, New York City was ranked No. 3 in last year’s report.
3. California – ATRA highlighted California’s implementation of Assembly Bill 5, which sought to decide whether a worker is classified as an employee or contractor, trial lawyers looking to exploit the state “Lemon Law” for maximization of attorney’s fee payouts and further exploitation of Proposition 65 by the plaintiffs’ bar, in its reasoning for including California on the list.
“In a year when many states saw a significant decrease in litigation, California plaintiffs’ lawyers continued to target businesses, while the legislature and judiciary pursued innovative new ways to expand liability. Businesses, small and large, are struggling to stay afloat, yet California’s leadership failed to ease unjust liability burdens and further stacked the deck against their survival,” per the report. Switching places with New York City this year, California was ranked No. 2 in last year’s report.
4. South Carolina Asbestos Litigation – ATRA almost exclusively looks to Judge Jean Toal’s handling of the state’s asbestos litigation as its reason for South Carolina being ranked No. 4 in its debut appearance this year, saying she “has shown a concerning pattern of allowing abuse of the discovery procedure, unwarranted penalties during trials and low standards for expert evidence.”
“South Carolina Asbestos Litigation was included on the Watch List in 2019, thanks to its reputation for pro-plaintiff rulings and unfair treatment of defendants in the court overseeing these cases. A concerning pattern of discovery abuse, unwarranted sanctions, low evidentiary requirements and multi-million-dollar verdicts solidified its position as a Judicial Hellhole.” As mentioned, South Carolina went officially unranked in last year’s report, but was included in its “Watch List.”
5. Louisiana – ATRA references lawsuit abuse and scams leading to increased auto insurance rates, abusive coastal litigation continuing to hamper the state’s economy, costly and widespread lawsuit advertising and scandals of judicial misconduct as reasons for Louisiana being ranked No. 5 in 2020.
However, ATRA also praised the enacting of the Civil Justice Reform Act of 2020 to address the state’s auto insurance crisis and COVID-19 liability protections for individuals, businesses, schools and manufacturers during the pandemic, calling them “the most significant legal reforms in Louisiana since the 1990’s.”
“Following the 2019 elections, the Bayou State was poised to improve its civil justice system, despite the state’s plaintiff-friendly governor, John Bel Edwards (D). As with every other state, COVID-19 drastically impacted the 2020 legislative session; however, the state was still able to address the nation’s second-highest auto insurance rates in the country and place reasonable constraints on lawsuits related to the pandemic. Louisiana is moving in the right direction, but much more work remains to be done.” Louisiana was ranked No. 4 in last year’s report.
6. Georgia – ATRA states an increase of high-dollar jury verdicts and a continued expansion of both premises liability third-party litigation financing in securing Georgia’s second straight appearance on the list this year.
“The ‘Peach State’ once again finds itself on the Judicial Hellholes list thanks to a continued rise in nuclear verdicts, the increasing role of third-party litigation financing, and ever-expanding premise liability. Trial lawyers have spent millions of dollars on advertisements, publicizing their jackpot verdicts and looking for their next big pay day. And while the Georgia legislature seemed poised to address lawsuit abuse plaguing the state’s judicial system, its efforts were derailed by the COVID-19 pandemic,” the report states. Holding steady, Georgia was also ranked No. 6 in last year’s report.
7. City of St. Louis – ATRA highlighted an affirmation of a gigantic talc litigation verdict by the Supreme Court of Missouri and alleged “junk science” permitted in courtrooms as reasons for the City of St. Louis returning to the list yet again.
In July 2018, a St. Louis jury awarded $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs, who claimed their ovarian cancer was caused by exposure to talc found in Johnson & Johnson’s baby powder.
In June, an appellate court upheld the verdict, but reduced the damages award from $4.69 billion to $2.12 billion – $500 million in actual damages and $1.62 billion in punitive damages. ATRA referred to the Supreme Court of Missouri’s order from last month, declaring its refusal to review the verdict as “very disappointing.”
“Personal injury lawyers flock to St. Louis to file their lawsuits to take advantage of the plaintiff-friendly judges. These out-of-state plaintiffs clog the city’s courts, drain court resources, and drive businesses out of the state leading to job loss.” Dropping down two slots on the list, St. Louis was ranked No. 5 in last year’s report.
8. Cook, Madison & St. Clair counties, Illinois – ATRA states continued litigation centered on the Biometric Information Privacy Act, remaining a preferred jurisdiction for asbestos cases and its legislature pushing a “pro-plaintiff agenda” caused the trio of Illinois counties to again land on the list in 2020.
“This trio of Illinois counties continues to be a preferred jurisdiction for plaintiffs’ lawyers thanks to no-injury lawsuits, plaintiff-friendly rulings in asbestos litigation and the promise of a liability-expanding legislative agenda each and every year. Illinois is ground zero for no-injury lawsuits, thanks in large part to its Biometric Information Privacy Act and the courts’ expansive interpretation of the law,” according to the report. Cook, Madison and St. Clair Counties were ranked No. 7 in last year’s report.
9. Minnesota – ATRA referenced the ongoing impact of the Supreme Court of Minnesota’s decision in Warren v. Dinter, where the Court found that “a doctor can face a medical liability suit even when no traditional physician-patient relationship exists…even in the absence of a physician-patient relationship, if it is reasonably foreseeable that the third party will rely on the physician’s acts and be harmed by a breach of the standard of care”, in its reasoning for placement on the list this year.
ATRA further pointed to a sizable increase in third-party litigation financing and Minnesota Attorney General Keith Ellison’s taking aim at several oil companies in a lawsuit claiming they misled Minnesotans about climate change, taking what ATRA feels is an “activist” stance on the issue.
“The “Gopher State” once again finds itself on the Judicial Hellholes list thanks to liability expanding decisions by the Supreme Court of Minnesota, the courts’ loose application of jurisdiction laws, and Minnesota’s activist attorney general.” The Minnesota Supreme Court and Twin Cities were also ranked No. 9 in last year’s report.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com