Last month, the American Tort Reform Association (ATRA) issued its always anticipated annual report on Judicial Hellholes. Not surprisingly, asbestos litigation remained a common engine driving the same familiar jurisdictions to repeated billing on the list. ATRA’s report attempts to shine a light on the conduct of all tort litigation in the United States, with attention to the uneven application of equal justice under the law, pretrial rulings, decisions during trial, unreasonable expansions of liability, and reflections on judicial integrity. Below, we’ll offer a summary of the impact of nationwide asbestos litigation on ATRA’s list.
According to ATRA, Florida found its way to the number two Judicial Hellhole for 2018-2019 in part due to a ruling from the Florida Supreme Court in the Delisle v. Crane mesothelioma case which threw out the Daubert standard mandated by the state legislature in 2013, and opined that a weaker standard was the appropriate method of evaluating expert testimony in the jurisdiction, thus eroding the requirement for such testimony to be based on sound science. Pure volume of asbestos filings was noted as a factor in including Philadelphia in the number six spot on the list, with a pending docket of 561 cases as of November 1, 2018, and the second most mesothelioma filings in the country after Madison County, IL. Madco held the eighth spot, along with St. Clair County, IL. To support its inclusion, ATRA noted that of the 6,071 asbestos cases filed in Madison County between 2014 and 2017, 68 percent of the plaintiffs were not Illinois residents. They further recognized an increase in asbestos filings in St. Clair, IL because of a shift in the standards of admissibility of experts across the river in St. Louis, MO. Despite this shift, St. Louis saw itself gain the number four spot on the list in no small part because of the staggering $550 million dollar compensatory, and $4.14 billion dollar punitive damage verdict issued in July against Johnson & Johnson arising out of allegations that their asbestos-contaminated talc products caused the ovarian cancer of 22 plaintiffs. ATRA further admonished the Missouri legislature for failing to enact asbestos trust transparency legislation.
New York City held the number three spot on the list, thanks in part to “Plaintiff-friendly procedures and high awards in asbestos cases” in NYCAL. To support NYC’s inclusion, ATRA specifically called out trial rulings which allowed the admission of jury-inflaming deathbed videos of the plaintiff Pietro Macaluso during the trial of his mesothelioma case, leading to a verdict that was eight times the national average for a mesothelioma case. They further admonished a NYCAL jurist for failing to reign in the defense-abusing behavior of the plaintiff’s counsel during the trial of the plaintiff J. Walter Twidwell’s case, which resulted in a $40.1 million dollar plaintiff’s verdict. ATRA criticized NYCAL for instability in its management despite its robust docket, given the very short term served by its previous coordinating judge. Finally, ATRA noted that New York failed to pass asbestos trust transparency legislation, despite the highly publicized corruption conviction of one of its legislators, Sheldon Silver.
ATRA dishonorably mentioned the Maryland Court of Appeals for refusing to apply the Statute of Repose in asbestos cases in 2018, but commended Kansas, Michigan and North Carolina for enacting asbestos trust transparency litigation.