At this year’s DRI conference, I sat in on the opening panel where Sherman Tiger Joyce of the American Tort Reform Association discussed jurisdictions in America where asbestos defendants have a difficult time — otherwise known as “judicial hellholes”. The panelist discussed these places where the law or other state-specific issues or judicial relationships make it difficult for defendants to get a fair shot. Since KCIC regularly reviews asbestos complaint filings to determine where defendants get hit harder with sheer volume of suits, I thought it would be interesting to compare our data to Mr. Joyce’s analysis.
New York, NY
The first of three locations that the speaker looked at was New York, NY. This is a top “hellhole” right now due to the court’s practice of consolidating cases for trial, thereby grouping different claimants together (with different disease and product allegations, exposure dates, etc.). This often forces comingled defense and can confuse juries, resulting in more favorable results for plaintiffs. There also is the fear that with a new case management order, punitive damages may be brought back to New York to also favor the plaintiffs. But that’s perhaps to be expected from a place where the convicted former state assembly speaker, Sheldon Silver, has strong ties to the plaintiffs bar.
As for complaint filings, KCIC hasn’t seen a large increase in New York filing trends. However, for 2015 and 2016 through September, the total filings are just under 10 percent of total filings nationwide – keeping it in the top three jurisdictions for asbestos filings nationwide. Even so, the majority of the filings in this state are from one plaintiff firm. Historically we have seen a large number of filings of asbestos complaints not specifying disease allegations in New York. While that continues, we have started to see a slight shift towards filings that include known diseases and, in particular, mesothelioma allegations. It will be interesting to see if this trend holds, especially given the case consolidation practice in New York.
Madison County, IL
It’s no surprise that Madison County in southern Illinois is on this list, given its notoriety as the “hub” of U.S. asbestos filings. Mr. Joyce mentioned that the courts here are so busy, on one day in August 2015, they had over 300 cases set for trial. The reason for so many asbestos filings may be the close relationship between the plaintiffs bar and local judges and politicians. One does have to wonder how this relatively small community can sustain such a large volume of lawsuits. Mr. Joyce noted that in a recent study, the Illinois Civil Justice League assessed that the economic value of the asbestos litigation to this community is around $1.74 billion.
KCIC’s data supports Madison County’s reputation as an asbestos litigation hellhole. Madison County made up roughly 22 percent of total asbestos cases fielded in the U.S. in 2015, and 30 percent so far in 2016 through September. Additionally, roughly 47 percent of all mesothelioma filings for 2016 (through 3rd quarter) are in Madison County.
We also are keeping an eye on St. Louis, MO, which is in close proximity to Madison County and has burst onto the asbestos scene in recent years.
Newport News, VA
One last city Mr. Joyce mentioned is Newport News, VA. According to the American Tort Reform Foundation’s 2015-16 report: “Plaintiffs’ lawyers bringing asbestos claims in the Circuit Court for the City of Newport News have the highest win rate in the country”. This city was added to their report mid-year due to how juries often are instructed on causation — to impose liability as long as exposure to a defendant’s product occurred.
While not as popular as other locations in the U.S., we at KCIC noticed that Newport started to show up more in 2015 filings. For 2015, we noted a significant lag time between the filing date of a lawsuit and the date on which the defendant was served — with over 150 filings from 2015 received in the fourth quarter of 2015 or in the first half of 2016. This late service alone equals about three times the total 2015 filings received the first three-quarters of 2015. The clear majority of these lawsuits were non-malignant cases filed by the law offices of Paul Weykamp. While 2016 Newport News filings are not as numerous through the third quarter of 2016 as they were in 2015, we must wait and see what happens in the next few weeks to see if a significant lag time for service occurs again.
While these cities are being monitored closely, Mr. Joyce did offer that there is hope for reforming these jurisdictions to make them more defendant-friendly, or at least level the playing field a little. He mentioned Philadelphia, PA, and West Virginia as examples where bad law and precedent has been reformed due to the vigilance of lawyers and the state legislature. As monitoring and awareness of the issues in these locations continues to rise, hopefully we will see reforms in other jurisdictions, as well.