California landed right behind Florida in the No. 2 spot in the annual Judicial Hellholes report this year.
The Tuesday report, published by the American Tort Reform Association since 2002, cited four Florida Supreme Court rulings in medical malpractice lawsuits among the primary reasons for ranking it the least business-friendly courts in the nation for the first time. Other top venues included New York, Pennsylvania and New Jersey.
In a statement accompanying the annual report’s release, ATRA president Tiger Joyce called California a “perennial hellhole … where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing.”
“The good news is the U.S. Supreme Court in June reversed a California high court decision that we criticized in last year’s report,” said Joyce of the High Court’s decision in Bristol-Myers Squibb v. Superior Court of California. “Had it been allowed to stand, California’s courthouse doors would have been thrown open even wider to out-of-state plaintiffs suing out-of-state defendants over alleged out-of-state injuries,” he said
➤➤ Sign up here for Critical Mass, Law.com’s new briefing by Amanda Bronstad on class actions and mass torts.
American Association for Justice spokesman Peter Knudsen took aim at the report’s general criticism of the courts.
“The authors of this report seem to think that our Seventh Amendment right to seek justice in court is something to be condemned. But that right is protected by the Constitution, just like their right to trot out this same stunt every year in an effort to help corporations avoid accountability.”
Here’s a look at some of the eight venues that made the list:
According to the report, Florida Supreme Court’s medical malpractice cases appeared to disregard the intent of the state’s legislature. The first decision granted patients access to medical records. Two other decisions pushed back against limits on attorney fees and damages. The court also upheld the privacy rights of patients.
Fort Lauderdale plaintiffs lawyer Scott Schlesinger chastised the report as “fiction” and “meaningless.” He said it’s harder than ever for plaintiffs to get compensated for malpractice committed by their doctors.
“Medical care is pretty much worse than it’s ever been and more dangerous than ever, but nobody wants to be held accountable,” said Schlesinger, of Schlesinger Law Offices. “The powers that be are able to ram through special interest legislation, and it’s the neutral courts that say, wait, this is unfair, or unconstitutional or unlawful legislation.”
The report also noted recent crackdowns on insurance fraud among Florida’s plaintiffs’ bar, some of which have landed plea agreements. And it referenced $9.2 million in sanctions against two Jacksonville plaintiffs firms for “unprofessional conduct” in tobacco cases.
“Our state has a vibrant justice system that is working to keep Floridians safe and deter insurance companies and big corporations from taking advantage of people and small businesses,” wrote Florida Justice Association spokesman Ryan Banfill. “That’s good for consumers and for business, too.”
The report cited California’s Private Attorneys General Act and public nuisance law as among the reasons the state ranked No. 2. In particular, the report mentioned an appeals court decision upholding liability in a $1.15 billion lead paint judgment.
The report acknowledged some defense wins in California, both involving alleged links between Johnson & Johnson’s baby powder and ovarian cancer and mesothelioma. And it praised the U.S. Supreme Court’s reversal of the U.S. Court of Appeals for the Ninth Circuit’s 2016 ruling in the Bristol-Myers Squibb case.
In New York, the report focused on the city’s asbestos docket, which ranked No. 4 due to a case management order issued this year that allowed claimants to pursue punitive damages.
Joyce called it “a great disappointment for defendants.”
St. Louis topped the list last year but moved to No. 3 after the governor signed legislation designed to rein in large verdicts based on what tort reformers called “junk science.” Juries in St. Louis have awarded double-digit awards against Johnson & Johnson over baby powder. The report cited those reforms, Bristol-Myers and an appeals court’s reversal of a $72 million talc verdict as reasons for St. Louis to drop in rank.
The Philadelphia Court of Common Pleas ranked No. 5 due to a surge of new lawsuits and big verdicts particularly involving pelvic mesh, antipsychotic drug Risperdal and blood thinner Xarelto. The most recent was the first Xarelto trial in Philadelphia that ended in a $27.8 million verdict on Tuesday.
The state ranked No. 6, primarily due to an appeals court ruling reviving more than 2,000 lawsuits over acne drug Accutane that had been dismissed based on scientific experts.
The report also flagged several venues to watch out for, such as Georgia, for its “growing list of outrageous verdicts.” It also chastised the Connecticut Supreme Court for upholding a $41.7 million award against a private school after a student was bit by a tick while on a class trip in China—though the judges were less than enthusiastic about their opinion.
Justice Andrew McDonald wrote in a concurring opinion: “Indeed, while the damages award in the present case shocks my conscience, our existing standard does not provide a recognized basis to conclude that the trial court’s conclusion to the contrary was improper.”