The American Tort Reform Foundation this morning released its annual Judicial Hellholes® report, one of the best overviews of the failings, excesses and even criminality of the U.S. civil justice system as manifested at the state and local level.

From the news release:

Washington, DC, December 15, 2009 — The American Tort Reform Foundation today released its annual Judicial Hellholes®report, naming some of the nation’s “most unfair civil court jurisdictions,” including first-time “Hellholes” New York City and the appellate courts of New Mexico, which join perennials South Florida, West Virginia, Cook County, Illinois, and Atlantic County, New Jersey.The report also cites several “Watch List” jurisdictions that are on the cusp – “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” – in California, Alabama, and former Hellholes in the Rio Grande Valley and Gulf Coast of Texas, Madison County, Illinois, and Jefferson County, Mississippi. …

“Lawsuit abuse continues to have a negative impact on both the nation’s economy and its health care system,” began ATRF president Tiger Joyce. “Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”

The full report is available here as a download. It’s an excellent read.

Coverage …

• West Virginia Record, “Hellhole report sparks debate”
• West Virginia Record, “South Florida the top ‘Judicial Hellhole’”
• St. Clair Record, “Madison and St. Clair counties on ‘Hellhole’ watch list”
• KMOX.com, “Madison County no longer a “judicial hellhole”, but concerns linger“

The “Record” publications are affiliated with the U.S. Chamber of Commerce and its legal reform arm, the Institute for Legal Reform.

The Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee met yesterday in Washington, initiating the long, consultative process that will lead to demonstration projects that will allow Congress to exclude tort reform from any health care legislation because, hey, they’re working on it. Here’s the agenda and a fact sheet on the $25 million White House initiative.

Sherman “Tiger” Joyce, president of the American Tort Reform Association, submitted a written statement to the advisory panel subcommittee, accmpanied by an ATRA news release, “ATRA to HHS: Surest Road to ‘Patient Safety’ is Access to Top Medical Specialists, Drugs and Devices.” Excerpt:

Washington, DC, October 26, 2009 — As a Department of Health and Human Services panel today convened a hearing to begin discussions of medical liability reform demonstration projects, American Tort Reform Association president Tiger Joyce reminded policymakers that, “Without access to the best specialists and live-saving drugs and medical devices, much of the recent talk about medical errors and patient safety could quickly become academic.”

ATRA’s written testimony to HHS’s Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, which conducted today’s tightly controlled hearing here in Washington, “was the only means by which to express our views and it was quite limited in length,” Joyce noted. “An effective medical liability system should provide predictability and fairness, guided by the over-arching principle of equitably and promptly compensating those who are truly injured by medical negligence,” Joyce’s written statement began. “A balanced system also would help to promote access to health care, deter harmful practices, and reduce the cost of wasteful ‘defensive medicine.’ But in these areas, the current system comes up short.

If we tend to cynicism about the medical malpractice demonstration projects — and grants – it’s because President Obama has never asked that tort reform be included in reform legislation, and he’s ruled out caps on non-economic damages. In recent remarks to the National Association of Manufacturers, Health and Human Services Secretary Kathleen Sebelius did not mention the issue. And, as former Vermont Governor Dr. Howard Dean said, “The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.”

Take a look at the American Association of Justice’s lobbying in the 3rd Quarter on the issues of health care tort reform. They’re against it.

For all the skepticism this process warrents, comments by an experienced lawyer friend of ours remind us to keep paying attention. He notes that these demonstration projects need not necessarily be directed toward cost savings or the reduction of frivolous litigation. A group could apply for a grant and use the demonstration project to undermine court rulings or past reforms. So examine those grants carefully.

By the way, did anybody see any news coverage of yesterday’s meeting?

We’ ve paid little attention to the political goings on in Wisconsin since 2007, when Gov. Jim Doyle tried to pass a tax on oil company revenues, prohibiting them from passing the tax onto consumers. The tax grab eventually died for many reasons, including its obvious violation of the Commerce Clause.

The governor is once again sending business a message: Stay away! Attempting to undo the civil justice reform measures of the 1990s, Gov. Doyle included a major expansion of business and individual liability in his budget (Assembly Bill 75). According to Wisconsin Manufacturers and Commerce’s fact sheet:

It eliminates current joint and several liability rules that compare a plaintiff’s liability to each person who negligently caused the plaintiff’s injury.  Under the budget bill provisions a plaintiff could collect damages even when he or she is more at fault for the injury than any individual defendants, as long as the plaintiff’s liability is not greater than the combined negligence of all the persons against whom recovery is sought.

Further, it repeals current law where the liability of a person who is less than 51 percent negligent for an injury is limited to that person’s percentage of the total negligence.  Finally, it repeals current law that limits joint and several liability to a person whose negligence for the injury is 51 percent or more of the total liability.  Assembly Bill 75 provides that any person whose negligence is equal to or greater than the negligence of the person seeking recovery is jointly and severally liable for all the damages award to the person seeking recovery.

Inclusion of policy provisions in fiscal bills is generally frowned upon, but it’s not clear whether the Legislature will remove the language as in years past. Democrats took control of the Assembly in the 2008 elections and expanded their control of the Senate, so trial lawyers are seeing an opportunity for major policy gains. See also:

• Wisconsin Civil Justice Council Fact Sheet
• Wisconsin Civil Justice Council Memo to Legislature
• Wisconsin Law Journal, “Lawyers divided over proposal”
• Legislative Analysis, via Hamilton Consulting Group.

Unfortunately, Wisconsin is just one state of many where the trial lawyers are trying to expand the opportunities to cash in on the litigation lottery. Sherman “Tiger” Joyce of the American Tort Reform Association summarizes the activity in the state legislature in the April issue of Metropolitan Corporate Counsel, “Rampant “Litigation Legislation” (Except Southeast) Threatens Recovery.”

UPDATE (1:05 p.m.): The Capital Times of Madison reports today, “Legislature set to change limits in personal injury cases.” Cutting to the chase…

“This is simply about the trial lawyers seeking out those who have the deepest pockets,” said Bob Fassbender of the Wisconsin Civil Justice Council Inc., a coalition representing Wisconsin employers that was formed earlier this year to fight such legislation. “But it’s going to have a chilling effect on the state’s business climate at exactly the wrong time.”

Victor Schwartz, general counsel for the American Tort Reform Association (who has also represented the NAM on occasion), issued a statement in reaction to the Supreme Court’s ruling in Wyeth v. Levine. From ATRA:

Personal injury lawyers will applaud today’s Supreme Court decision, but we caution against any over-reading of the Court’s ruling. As the Court’s decision makes clear, implied preemption cases are fact-intensive, turning on what information the agency considered in a specific instance.

The Supreme Court’s decision focuses more attention on the flipside of the federal preemption coin. Several states have already determined, through courts or legislatures, that due deference should be given to the FDA in assessing the validity of a medicine’s warnings, particularly when there has been no wrongdoing by the defendant. The unfortunate truth is that all medicines come with risks. States should pick up the baton left for them today and join these other states in yielding to FDA scientists when, after years of earnest study, the FDA stamps a drug as safe and effective when accompanied by warnings explaining a medicine’s known risks.

U.S. Secretary of Agriculture Ed Schafer headlines this week’s “America’s Business with Mike Hambrick,” highlighting the benefits of trade to the U.S. economy even during the tough times of recession. Secretary Schafer looks at prospects for the pending U.S. free trade agreements, and sees hope for congressional action next year on Colombia and Panama, if not Korea. (For more from this interview, see this post on Shopfloor.org.)

Also on the program this week is Peter Buffett, musician, composer and son of mega-investor Warren Buffett. Peter will be attending the Future Capitals Summit in Abu Dhabi on January 13-15. This conference is taking place to discuss which countries will emerge as centers of commerce in the coming years, a topic of the younger Buffet’s expertise.

The American Tort Reform Association has released its latest “Judicial Hellholes” detailing the states and venues where frivolous and abusive lawsuits drive up costs and destroy justice. ATRA’s general counsel, Victor Schwartz, joins Mike to tell us which jurisdictions are improving and which are becoming even more hell-like. We’ll follow that up with our “Legally Insane” case of the week with Renee Giachino of the American Justice Partnership.

Wind power promises to be an important part of America’s energy portfolio in the coming year. Here to give the lowdown on wind’s potential is Greg Wetston, Senior Director for Government Affairs at the American Wind Energy Association. And for another perspective on wind power, on the program is Steve Lockard, President and CEO of TPI Composites. TPI Composites manufactures the blades you see on those large wind towers.

In our regular segments, NAM commentator Hank Cox recalls “The Way It Was.” And the National Association of Manufacturers President Gov. John Engler will close the program with “The Last Word.”

For more about “America’s Business” and to listen to the program online, please visit www.americasbusiness.org.

The American Tort Reform Foundation’s latest “Judicial Hellholes” report adds a useful new chapter, a review of the unjust connection between politically ambitious state attorneys general and private attorneys they hire on a continency basis to sue business on behalf of the state. The short essay is entitled, “Dangerous Liaison.” Thesis:

[The] actions of a handful of state attorneys general also contribute to growing concerns in the business community about the ability of defendants to receive fair trials. This happens when what are essentially private lawsuits are filed, often in a plaintiff-biased local court, with the backing of the state government and a strong incentive to obtain the highest monetary award possible. It’s a system of legal kickbacks known as “pay to play,” wherein lawyers who contribute to the campaigns of the state’s highest ranking attorney can then get a contract for a piece of the action and, in some cases, develop the action themselves and get a go-ahead to pursue it in the state’s name.

Cited are examples of this undemocratic, abusive process in Mississippi, Ohio, West Virginia and Rhode Island, the last state being notable for the public nuisance suit against lead paint manufacturers, eventually thrown out by the state Supreme Court.

Having covered the R.I. lead-paint litigation, Jane Genova of the Law and More blog also follows cases involving ambitious politicians turning to contingency fee arrangements to sue business. She recently noted another case of private lawyers being hired on spec to do the state’s work in Pennsylvania. From “Contingency - Philly Judge allows it in govt case against BigPharma“:

The use of contingency in cases filed by government entities probably will eventually wind up in the U.S. Supreme Court - and sooner than later with the emboldened state attorneys general and plaintiff bar. 

The latest ruling on that controversial issue has been by a Philadelphia County Court of Common Pleas.  That state judge Howland Abramson gave his okay to the participation of private law firm Bailey Perrin Bailey of Houston in the lawsuit filed by Pennsylvania Governor Ed Rendell against Janssen Pharmaceuticals.  The firm is accused of off-labeling marketing of drug Risperdal. 

As John O’Brien reports in LEGAL NEWSLINE, the defendant objects to the use of contingency based on the argument of violation of due process.  O’Brien states, “The Due Process Clause requires Rendell to be guided by the sense of public responsibility for the attainment of justice, Janssen says. ‘The risk that Bailey Perrin’s financial stake in the outcome will affect government decision-making in connection with this action is real and serious.’”  A number of legal experts view the due-process argument as the strongest against contingency in cases filed by government entities.

Manufacturers are also closely watching a case in California where the county of Santa Clara used contingency fee attorneys in lead-related lawsuits against ARCO and Sherwin-Williams.

The American Tort Reform Association today released its “Judicial Hellholes” report, highlighting the jurisdictions where arbitrarily practiced caprice distorts the rule of law and raises costs to business, consumers and taxpayers.

From the news release:

Washington, DC, December 16, 2008 — The American Tort Reform Foundation today released its annual Judicial Hellholes® report, naming some of the nation’s “most unfair civil court jurisdictions,” including perennial “Hellholes” West Virginia, South Florida and Cook County, Illinois; relative newcomers Clark County, Nevada, and Atlantic County, New Jersey; as well as Los Angeles County, California, and Alabama’s Macon and Montgomery counties, which are returning to the unwanted spotlight after respective absences.

The report also cites several “Watch List” jurisdictions that are on the cusp - “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” - in the Rio Grande Valley and Gulf Coast of Texas; the once notorious Madison County, Illinois; Baltimore, Maryland; St. Louis (the City of), and St. Louis and Jackson counties, Missouri. Also noted less severely as “other areas to watch” were Orange County, California; St. Clair County, Illinois; Madison, Wisconsin; Seattle, Washington; New Orleans, Louisiana; Santa Fe, New Mexico; and the states of Minnesota and Oklahoma.

“Lawsuit abuse continues to have a negative impact on the nation’s economy, as well as particular state economies,” began ATRF president Tiger Joyce. “Every dollar spent defending against a speculative lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”

Lots of very good, very interesting observations and analysis. To read the entire report in .pdf (3 MB), go here.