Civil Justice Playbook: Hail the New Litigation Hell

Saturday, January 7, 2017 - 14:20

There’s a new sheriff in lawsuit land.

Displacing California, ranked as the top Judicial Hellhole three of the last four years, is the city of St. Louis, Missouri, which topped the annual Judicial Hellholes report released last month by the American Tort Reform Foundation (ATRF). The #1 ranking in the report, now in its 15th year, capped an amazing rise that saw the Missouri Supreme Court break into the ranking at #6 three years ago, the state of Missouri hit #4 the last year, and the Gateway City soar – or should we say sink – to the top slot in the 2016-17 report.  

According to ATRF, St. Louis’ showing required “plenty of help from the Show Me Your Lawsuits State’s highest court.” The city, which Bloomberg Businessweek deemed notorious for its fast and furious approach to civil litigation, had four of the six biggest product liability verdicts in the U.S. courtesy of its Circuit Court. That’s catnip for caserunners.

“It’s now being flooded with such claims from out-of-state plaintiffs eager to take advantage of Missouri’s lax standard for expert testimony and laws allowing easy forum shopping,” according to the report.

One type of case in particular fueled St. Louis’ rise. Those are claims that talcum powder causes ovarian cancer, which accounted through the summer of 2016 for 2,100 individual claims nationwide in more than 250 separate suits. Two-thirds of those actions were in St. Louis Circuit Court, which handed down three show-me-the-money verdicts totaling just shy of $200 million for powder plaintiffs from Alabama, South Dakota and California.

It’s not just the talc cases, however, that are dusting St. Louis. Plaintiffs lawyers are drawn by the state’s refusal to adopt the Daubert standard for expert testimony – now the more stringent law of the land in the federal courts and 40-odd state courts. Missouri’s low bar for experts is a magnet for junk science and quackery. And the state’s venue laws also contributed to its groaning docket of product liability, asbestos and consumer class actions. Reminiscent of the days when railroads were tearing up their tracks in certain loosey-goosey Texas counties, lawsuits can be filed in any Missouri county where a single claimant resided when the alleged injuries were suffered – hardly a stretch in these cases. Making matters worse, the U.S. Court of Appeals for the Eighth Circuit issued a circuit-splitter in 2010 that makes it harder to remove cases to federal court, and the ever-resourceful plaintiffs bar, by keeping the number of claimants under 100 per lawsuit, are steering clear of the federal Class Action Fairness Act’s threshold for removal to federal court.

Add it all up and the hellhole of St. Louis hellhole is heaven on Earth for the plaintiffs bar. That knocked California off its perch to #2 – a kind of lesser plaintiffs’ paradise which enacts some 800 new laws a year. According to ATRF, that makes it all but impossible for California residents to avoid being targeted in one of the million “preposterous” lawsuits filed annually over “workplace rules, pay-stub formatting, food and beverage labels, imaginary environmental hazards, disability access and novel public nuisance theories.” One suspects, however, that California will bounce back. This marks the seventh year in a row the Golden State – for plaintiffs lawyers, that is – has ranked #1 or #2 on the Judicial Hellholes list.  That’s an unrivaled track record.

Rounding out the 2016-17 list are:

New York City, where defendants are “presumed guilty unless proven innocent” in asbestos litigation.

Florida, whose Supreme Court has a “long record of liability-expanding rulings” and where the southern part of the state is giving rise to “troubling alliances between lawyers, shady medical clinics and service providers that run up expenses for lawsuits.”

New Jersey, with a high court that has “declared war on the use of arbitration.”

Illinois, thanks to three local hellholes: Chicago, the “wrong place to defend a case,” Madison County, the “epicenter” of asbestos litigation due to a deck stacked against defendants, and St. Clair County, which “hosts more than its fair share of litigation.”

Louisiana, an always-good-for-a-laugh Hellhole where the governor attempted to hire campaign contributors to run multibillion-dollar coastal erosion litigation against the state’s key energy industry.

Virginia, which generally has been quite balanced but has seen the shipping city of Newport News garner the highest win rate for asbestos plaintiffs in the country.

Texas, where you’ll want to steer clear of Hidalgo County, which is “hailing lawsuits accusing insurers of not paying for storm damage.”