BSCR Firm News/Blogs Feed

Washington upholds the Construction Statute of Repose's applicability to Asbestos Claims

21 May 2026

ABSTRACT: Washington Supreme Court holds that installation of asbestos-containing insulation constituted construction of an improvement on real property, and insulation was integral to the refinery’s intended function. Claims arising from that construction are barred by Washington’s construction statute of repose under RCW 4.16.300-.310.

On April 30, 2026, the Washington Supreme Court in Polinder v. Aecom Energy & Constr. Inc. found that a former refinery maintenance worker could not bring claims against an insulation company arising from his alleged asbestos exposure in the 1970s. RCW 4.16.300-.310 – Washington’s Construction Statute of Repose – generally requires claims against improvements to real property to be brought six years after substantial completion of the improvement. This decision arises from construction of the Cherry Point refinery in the late 1960s and early 1970s. During construction, an insulation company supplied and installed asbestos containing insulation — including selecting products, purchasing them from manufacturers, arranging delivery, and installing them throughout the refinery. Decedent Lee Hetterly later worked at Cherry Point and alleged exposures to asbestos from the insulation.

The procedural history includes a split in the Washington Court of Appeals Divisions 1 and 2 application and understanding of the breadth of Washington’s Construction Statute of Repose, resulting in an interlocutory review to resolve the conflict. There was no dispute that the claims accrued decades after substantial completion, so the applicability of the statute turns on whether the insulation installation contributed to the “construction of an improvement upon real property” and whether the claims “arose from” that construction.

The Supreme Court unanimously concluded that installation of thermal insulation at Cherry Point during refinery construction both contributed to the construction of an improvement on real property and involved systems that are a normal and integral part of a refinery required for it to function as intended. Accordingly, Hetterly’s claims arising from insulation installation (a “construction activity”) were barred by the construction statute of repose. Specifically, the Court found that “‘improvement’ is a broad term, and the protections of the construction statute of repose are not limited to individuals working on the structural aspects of a building, nor are they limited to improvements that are buildings.” In addressing “improvements,” the Court relied on evidence including design plans, specifications and expert testimony that thermal insulation is necessary for refineries to operate and that, without it, the refinery could not function as intended. The Court rejected the notion that insulation is a mere “accoutrement” to manufacturing, finding instead that it is an integral component of refinery systems. The majority further interpreted the statute’s “arising from” language, finding that the repose applies broadly to claims tied to construction, alteration, or repair of improvements.

The Court did, however (with one partial dissent), set boundaries on the application of the Construction Statute of Repose: when a defendant’s alleged liability can be established without proving its construction activity—i.e., based on independent obligations as a product seller or supplier—those claims are not barred. The majority acknowledged that line-drawing may be difficult, but rejected the concern that recognizing independent seller/supplier liability would undermine the statute. The majority additionally confirmed that plaintiffs do not avoid the repose issue by relabeling construction claims as product claims.

Accordingly, the majority reversed the trial court’s order denying the insulation company’s summary judgment motion on construction-based claims.

Justice McCloud concurred and dissented in part, arguing that the majority should not have addressed “seller liability,” and ruled that to the extent Hetterly’s claims were based on Brand’s activities as a product seller or as a negligent supplier of asbestos-bearing insulation, those claims were not so barred. Justice McCloud asserted that seller liability was not raised at the appellate level for direct discretionary interlocutory review, was not part of the conflict between the appellate court’s decisions, and was not decided by the trial court order under review. Consequently, he would reverse on the construction issue and remand, leaving any independent seller/supplier claims for the trial court to address in the first instance.

This decision reaffirms and clarifies the robust protection of Washington’s Construction Statute of Repose for contractors whose work contributes to the construction of improvements on real property. The Court strengthens predictability around long-tail liability and resolves uncertainty created by conflicting appellate decisions. While independent seller and supplier claims may still proceed if they can be established without proof of construction activity, the Court’s line-drawing ensures cannot circumvent the statute simply by relabeling construction claims.

Judicial Hellholes 2025: St. Louis and Illinois Under the Spotlight Again

18 Mar 2026

ABSTRACT: For 2025, Madison and St. Clair Counties return to the Judicial Hellholes® list alongside Cook County, collectively ranked #7. Together, these three Illinois jurisdictions have developed reputations as plaintiff-friendly venues, attracting high volumes of asbestos filings, no-injury BIPA class actions, and increasingly, the same types of emerging litigation seen across the river in St. Louis—including lawsuits targeting manufacturers of medically necessary infant formula used to treat premature infants. This regional concentration of mass-tort and high-exposure litigation, coupled with the prevalence of nuclear verdicts, also contributes to St. Louis’s placement as the #6 Judicial Hellhole.

Nuclear Verdict Trends in St. Louis and Illinois

St. Louis City Circuit Court has ranked among the top six jurisdictions nationwide for the highest combined nuclear verdicts against businesses, a trend that has persisted for more than a decade issuing $957 million in verdicts across just two cases in 2024.

One of those verdicts, a $462 million award against Wabash Trucking Company arose out of a fatal highway collision in September 2024 where plaintiff rear-ended a big rig that was stopped in traffic and slid underneath its trailer. The accident occurred in broad daylight, plaintiff had a blood alcohol concentration above the legal limit, and neither the driver nor the passenger wore seatbelts. However, the jury was prevented from hearing this critical evidence, in part due to Missouri’s “seat belt gag rule,” which restricted Wabash’s ability to rebut Plaintiff’s theory that, but for the rig allegedly failing, Plaintiffs would have survived striking the truck at approximately 55 miles per hour.

Other nuclear verdicts in St. Louis include a $48.1 million medical liability award and a $25 million product liability award, both occurring in March 2025. Illinois courts, too, maintain a reputation for nuclear verdicts ranking sixth in the country for most verdicts over $10 million over a ten-year period, particularly in Cook, St. Clair, and Madison Counties.

Asbestos Litigation Expands Following Illinois Supreme Court Ruling

Illinois’ burgeoning asbestos litigation was abetted by the Illinois Supreme Court’s January 2025 decision in Martin v. Goodrich Corp., 2025 IL 130509, 486 Ill. Dec. 157, 268 N.E.3d 170. In Martin, the Court upheld the 2019 amendment to the Illinois Workers’ Occupational Diseases Act which expanded the ability of employees (or their heirs) to bring tort claims for latent occupational diseases like asbestos or other long-latency conditions that would have been barred under the old workers’ compensation exclusivity and repose rules.

In 2024, Madison County ranked the top jurisdiction for asbestos fillings nationwide, with 882 filings followed second by Saint Clair County with 820 filings, a 22% increase from 2023. Cook County landed in the top 5 with 176 filings. The decision in Martin will further increase these numbers in 2026.

Jurisdictional Expansion and Forum Shopping in Illinois

Further opening the floodgates in Illinois courts, in July 2025, Governor J.B. Pritzker signed S.B. 328 into law, a measure critics say will make Illinois an even more attractive forum for out-of-state litigation. The law expands general personal jurisdiction by treating a corporation’s registration to do business in Illinois as consent to be sued in Illinois courts, even for claims unrelated to the company’s conduct in the state. Plaintiffs’ lawyers can assert that even unregistered companies should be “deemed” to have consented to Illinois jurisdiction based on business activity conducted in the state.

The statute applies broadly to claims involving exposure to any substance capable of causing injury, extending beyond asbestos to include lawsuits involving food, medication, infant formula, and other products. As plaintiffs’ lawyers continue to funnel out-of-state cases into Cook, Madison, and St. Clair Counties due to their plaintiff-friendly reputations, Illinois residents will increasingly bear the cost, through crowded dockets, strained court resources, and longer delays in having their own disputes resolved efficiently.

Infant Formula, Roundup and Expert Testimony Challenges

St. Louis, Madison and St. Clair Counties alike have further been criticized in the 2025 report by the prevalence of junk science, particularly in plaintiff-driven “failure to warn” and consumer-protection claims targeting life-sustaining infant formula. In these cases, plaintiffs’ attorneys, advance theories that prescribed fortified infant formula increases the risk of necrotizing enterocolitis (“NEC”) in premature infants. However, the FDA does not require NEC-related warnings for these products. Moreover, the American Academy of Pediatrics and the NEC Society have publicly expressed concern that these lawsuits and verdicts risk harmful consequences for infant care, including discouraging the use of medically necessary formulas prescribed by physicians in neonatal intensive care units. State courts in St. Louis City have rejected the defense doctrine protecting manufacturers who have warned the prescribing physician who ultimately makes recommendations to the patient.

On the Illinois side, Mead Johnson and Abbott, neither of which are Illinois based companies, have continued to wage jurisdictional and venue challenges to baby formula litigation in Madison and St. Clair, with little success. In June 2025, the Illinois Fifth District Appellate Court rejected Abbott’s and Mead Johnson’s venue challenges, allowing thousands of baby formula cases to remain in Madison County. Jupiter v. Mead Johnson & Co., 2025 IL App (5th) 230248. Mead Johnson has since petitioned the Illinois Supreme Court, arguing the appeal was dismissed on technical captioning grounds, that the lower courts relied on outdated corporate filings, and that the venue standard is unworkable given baby formula sales occur indirectly through wholesalers and retailers.

Similar critiques on the use of junk science and questionable expert theories are waged against St. Louis in Round-Up lawsuits filed against Monsanto alleging that glyphosate, an active ingredient causes non-Hodgkin lymphoma. In February 2025, the Court of Appeals of Missouri, Eastern District, affirmed a St. Louis jury’s $1.25 million failure-to-warn verdict against Monsanto which is now pending before the U.S. Supreme Court. The Missouri Court of Appeals agreed that Roundup bottles should carry a cancer warning, contradicting federal regulators that do not require such labeling. The court held that Missouri’s failure-to-warn standard is not preempted by federal law, blurring the lines of uniformity within the regulatory system.

ADA, BIPA and GIPA: High-Volume Statutory Litigation

The 2025-2026 report further evidences a wave of ADA litigation targeting St. Louis businesses involving alleged website accessibility barriers over ADA’s Web Content Accessibility Guidelines (WCAG), largely driven by Kansas-City based attorneys. In one example, a legally blind plaintiff sent a demand letter to a small sandwich shop located more than 200 miles away, despite the fact that the restaurant does not offer delivery and the plaintiff lives over three hours from the business. Since September 18, 2025, this serial plaintiff has filed 69 cases alleging nearly identical ADA violations. Critics point to the irony that while these attorneys aggressively pursue WCAG-based claims, their own websites have reportedly been flagged for similar accessibility issues.

Consistent with last year’s report, the Illinois Biometric Information Privacy Act (“BIPA”) remains a powerful and attractive vehicle for class action litigation. This trend was fueled in large part by the Illinois Supreme Court’s 2019 decision holding that plaintiffs need not allege or prove actual injury beyond a statutory violation to pursue damages and injunctive relief. Although BIPA continues to be a favored weapon of the Illinois plaintiffs’ bar, the statute saw meaningful reform with the August 2024 enactment of S.B. 2979. The amendment limits the number of actionable violations to a single instance, regardless of how many times a business scans or transmits an individual’s biometric information, eliminating the “per scan” damages theory recognized by the Illinois Supreme Court in Cothron v. White Castle Sys., 2023 IL 128004, 466 Ill. Dec. 85, 216 N.E.3d 918. Litigation over the scope of this reform is ongoing, including a case currently before the U.S. Court of Appeals for the Seventh Circuit, originating in Cook County, that could determine whether the 2024 amendment applies retroactively.

Even with these reforms, BIPA filings have persisted and plaintiffs’ attorneys in Illinois have now pivoted to the Genetic Information Privacy Act (“GIPA”), enacted in 1998 to protect disclosure of genetic information. As with BIPA, GIPA creates significant statutory liability, authorizing damages of $2,500 per negligent violation or actual damages, whichever is greater, and $15,000 per violation for intentional or reckless violations. Six class action GIPA lawsuits were filed in Illinois in 2025 challenging pre-employment questions about family medical history and targeting the statute’s broad definition of “genetic information.” These suits were concentrated in Cook County and the federal courts that encompass it, as well as the Southern District of Illinois covering Madison and St. Clair Counties, further reinforcing these jurisdictions as preferred venues for high-volume, plaintiff-driven class actions and adding strain to already congested dockets.

Illinois and Missouri still face significant work if they hope to move off the “Judicial Hellholes” list, where they are accompanied by #1 Los Angeles, #2 New York City, #3 South Carolina, #4 Louisiana Coastal Litigation, #5 The Philadelphia Court of Common Pleas, and #8 King County and Washington Supreme Court.

Fashioning Justice: Lack of Expert Testimony Unravels Defective Uniform Case

19 Feb 2026

ABSTRACT: In 2025, the District Court for the Northern District of Illinois granted two defendants Daubert motions in a toxic tort lawsuit alleging injury from exposure to chemicals used in airline uniforms. According to the court, the plaintiffs’ expert witnesses failed to provide a plausible biological theory of exposure, because any such theory had not been tested, peer reviewed, or scientifically accepted. The court also noted that the plaintiffs’ experts failed to show any statistical association between exposure to the uniforms and the plaintiffs’ alleged injuries.

In 2015 American Airlines (“American”) ordered new uniforms for its pilots, flight attendants, and customer service agents to wear. American contracted with Twin Hill Acquisition Company, Inc. (“Twin Hill”) to provide American with the new uniforms. American employees alleged that the new uniforms contained harmful chemicals that caused rashes, hives, headaches, and throat swelling. Plaintiffs filed suit alleging American engaged in battery and intentional infliction of emotional distress and suit against Twin Hill under strict and negligent products liability.

On April 11, 2025, the District Court for the Northern District of Illinois took up the defendants’ motion for summary judgment based on the plaintiffs’ two experts’ failure to use reasonable methodologies to establish a causal link between the uniforms made by Twin Hill and the harm alleged by the plaintiffs.

The defendants also filed Daubert motions along with the Motion for Summary Judgment to disqualify the plaintiffs’ expert witnesses. The Court ruled in favor of the defendants on their Daubert motion by disqualifying the plaintiffs’ expert reports for lacking reliable testimony. The Court recited Rule 702 of the Federal Rules of Evidence states that a party seeking to introduce expert testimony must first establish by a preponderance of the evidence that “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact,” “the testimony is based on sufficient facts or data,” “the testimony is the product of reliable principles and methods,” and “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

The Court used the Daubert threshold to state that both of the plaintiffs’ experts failed to connect a “biologically plausible theory” for how the plaintiffs’ negative reactions to the uniforms could be related to chemical exposure.

Because the plaintiffs’ toxicologist expert failed to provide a plausible biological theory of exposure, and because any such theory would not have been tested, peer reviewed, or scientifically accepted, the expert’s methodological basis for his causation opinion was insufficiently reliable to be admitted under the Daubert standard and Federal Rule 702.

The plaintiffs maintained that their experts did not need such a theory because one of the experts was able to infer the causal relationship between the symptoms and Twin Hill uniforms by applying the Bradford Hill methodology by using the complaints submitted by American’s employees.

The Bradford Hill criteria is a well-established methodology for showing that correlation between two variables is representative of a causal relationship. It involves first determining whether a statistically significant association exists between two phenomena and then analyzing that association along nine criteria: strength of association, consistency, specificity, temporality, biological gradient, plausibility, coherence, experiment, and analogy.

The court reasoned that the plaintiffs’ experts failed to show any statistical association between the exposure to the uniforms and the plaintiffs’ alleged ailments. The experts failed to cite any epidemiological or toxicological study linking the uniforms, or any of the chemicals they contained, to any type of adverse reaction. The plaintiffs’ experts attempt to identify an association also suffered from a related but deeper flaw: the complaints drawn upon were not a reliable indicator of the rate of symptomology among even the exposed treatment group. The court reasoned that the complaint volume alone only revealed the rate at which American employees filed complaints, not an association to a design defect in the uniforms and adverse reactions.

The methodological basis for the plaintiffs’ expert testimony was deemed insufficiently reliable to be admitted under Rule 702. The misapplication of the Bradford Hill framework further underscored the methodological unsoundness of the plaintiffs’ experts’ approach. The decision to ignore alternative explanations for the plaintiffs’ symptoms—explanations made plausible by substantial supporting evidence in the record—provided an independent basis to exclude any of the plaintiffs’ experts’ testimony.

Practical Considerations:

In jurisdictions using the Daubert standard, to properly rely on an expert’s testimony in toxic tort cases, the expert’s report must identify a “biologically plausible theory” of causation between the alleged defect and the harm that it caused. The report should identify the particular toxic dose or doses that led to the injury caused. Further, the report should also address any likely alternative causes and potentially disprove the alternatives by evidence presented in other reports. It is not enough to merely rely on the complaints of the plaintiff. Rather, the expert must associate the complaints with scientific evidence to support such a “biological plausible theory.”

Illegality Defense Still Alive and Well in the 10th Circuit

28 Oct 2025

ABSTRACT: The Tenth Circuit recently confirmed that the illegality defense offered by a defendant in a product liability case – that is, where the defendant asserts that a plaintiff’s claims are barred due to the plaintiff’s illegal conduct while utilizing a product – is alive and well under Kansas law and that it applies to product liability claims.

The Tenth (10^th) Circuit, in Messerli v. Aw Distributing, Inc., recently confirmed that the illegality defense offered by a defendant in a product liability case – that is, where the defendant asserts that a plaintiff’s claims are barred due to the plaintiff’s illegal conduct while utilizing a product – is alive and well under Kansas law and that it applies to product liability claims. We previously reported on this issue here, here, and here.

As previously reported, a Kansas federal district court applied Kansas’s illegality defense to bar product liability claims where the plaintiff (father of the decedent) admitted the decedent inhaled toxic vapors from computer duster canisters, resulting in his death. Such use of these canisters violates Kansas law. Plaintiff nonetheless sued four defendants who design and manufacture computer dusters—which the decedent purportedly inhaled—alleging seven claims under Kansas law: (1) strict products liability—design defect; (2) strict products liability – failure to warn; (3) negligent design defect; (4) negligent failure to warn; (5) wrongful death; (6) breach of the implied warranty of merchantability; and (7) breach of express warranty. One defendant moved to dismiss all claims arguing the decedent’s conduct that caused his death was illegal, and that the illegality defense should apply to bar these claims caused by the decedent’s illegal conduct. The federal district judge, finding that the complaint alleged facts confirming decedent’s illegal conduct (prohibited by Kan. Stat. Ann. § 21-5712) that caused the death, dismissed the product liability claims against the moving defendant-manufacturer. A few weeks after the ruling, the remaining defendants filed identical Motions to Dismiss based on the same argument.

Kansas courts have applied the illegality defense to bar other tort claims, but Messerli marked the first instance a Kansas federal court applied the illegality defense to bar product liability claims. After the District Court’s original 2023 ruling, the plaintiff filed a Motion to Certify the question to the Kansas Supreme Court, and soon thereafter, the Kansas federal district court denied Plaintiff’s Motion to Certify (for various reasons we discussed here), and granted the remaining defendants’ similar Motions to Dismiss, effectively ending the case, pending an appeal.

On appeal to the 10th Circuit, the Plaintiff claimed that the Court erred in dismissing his claims because 1) no Kansas court had ever applied the illegality defense to products liability claims, and it would be inappropriate to do so here and 2) due to Kansas adopting comparative fault framework, the question of the decedent’s culpability in his death should be left to the jury, not foreclosed by the court.

But the Court of Appeals affirmed the decision of the district court, confirming that absent abrogation by the Kansas Legislature or Kansas Supreme Court, the illegality defense is available under Kansas law and may be applied to product liability cases like the one at hand.

In so finding, the Court recognized that under Kansas law, tort claims are barred when the plaintiff’s illegal act has a causal connection to his injuries. Applying this logic to this case, the Court briefly discussed the background as to why Kansas outlawed “possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system” (Kan. Stat. Ann. § 21-5712) and why Kansas outlawed DFE abuse, including due to the serious health complications that can result from such abuse.

The 10th Circuit went on to briefly discuss the Kansas Product Liability Act (KPLA) adopted by the Kansas legislature, which merges all legal theories of products liability into a single product liability claim. However, when the KPLA is silent, the Court explained how such gaps are filled by Kansas common law, which, in this case means that the manufacturer’s duty extends to any “reasonably foreseeable” use (which include misuse). Yet, as the Court notes, defendants still have affirmative defenses available to them to be asserted in response to a pleading, including illegality.

The 10th Circuit also explicitly recognized that not only was the defense not explicitly abrogated or affirmed by the KPLA, but also that Kansas courts have and continue to apply the illegality defense to tort actions, and that “[p]roduct liability is, of course, a species of tort action.” The Court also identified other jurisdictions that have applied illegality or wrongful-conduct defense to product liability claims (not Missouri – yet), ultimately finding no reason why Kansas law would differ.

The 10th Circuit further addressed why Kansas’ adoption of comparative negligence does not prevent the application of the illegality defense to completely bar a cause of action. Specifically, the policy behind the illegality defense is not one based on allocating fault (as comparative fault is), but rather is meant to prevent a plaintiff from benefiting from his own illegal act. Indeed, as articulated by the 10th Circuit, under comparative negligence, the jury assigns fault and the injured party’s recovery is reduced by their percentage of liability (if under 50% liability – if at or above 50%, the injured party takes nothing). The statute, Kan. Stat. Ann. § 60-258a, explicitly abrogates contributory negligence and the Kansas Supreme Court expanded its scope, recognizing a preference for comparative liability and sweeping aside all or nothing concepts. Here, however, the 10th Circuit found nothing in Kansas statutes or caselaw explicitly abrogating the illegality defense, and did not find the defense inconsistent with comparative negligence where it would be found to be implicitly abrogated. Dismissal was therefore appropriate.

Ultimately, the 10th Circuit has made clear that the illegality defense is alive and well in Kansas, including for product liability claims, as well as has made clear that general misuse and illegal use of a product are separate considerations. However, this case also serves as a red flag for both those filing and responding to complaints. On one hand, the language used in complaints matter and can, in fact, support early dismissal where the language used, on its face, clearly shows the application of a defense that bars a plaintiff’s claim (e.g., making allegations that the plaintiff or the decedent was utilizing the product in an illegal manner). On the other hand, defendants should be sure to consider the language used in complaints and whether same support immediate dismissal or if initial more aggressive discovery is needed to support an early dispositive motion based on an anticipated successful defense supporting the full dismissal of plaintiff’s claims (e.g., the complaint contains allegations that allude to illegal use of the product, but does not clearly allege same).

We anticipate that as a result of this decision, we will be seeing more dispositive motion practice in Kansas product liability cases based on the illegality defense. We may also see the Messerli decision cited in other jurisdictions that have not yet explicitly applied the defense to product liability claims. Stay tuned…we will report on future developments concerning the use and application of this defense in the product liability arena.

Mind the Gaps: Unreliable Expert Testimony Dooms Plaintiff's Toxic Exposure Suit in Airline Uniform Case

16 Jul 2025

ABSTRACT: A federal court recently dismissed claims brought by American Airlines employees who alleged health issues from chemically treated uniforms, finding the plaintiffs' expert testimony failed to meet the reliability standards required under Daubert and Rule 702. The ruling reinforces the high burden toxic tort plaintiffs face in proving causation and the importance of rigorous expert analysis in litigation involving chemical exposure.

In Zurbriggen v. Twin Hill Acquisition Co., the Northern District of Illinois granted summary judgment in favor of defendants American Airlines and Twin Hill, a uniform manufacturer, holding that airline employees alleging toxic exposure from chemically treated uniforms failed to present scientifically reliable expert testimony on causation. The decision highlights the rigorous evidentiary standards in toxic tort litigation, where the admissibility of expert testimony often determines the outcome and reaffirms the critical gatekeeping role of Daubert and Rule 702 in preventing jurors from filling scientific gaps with speculation.

American Airlines contracted with Twin Hill to manufacture a new line of uniforms for more than 60,000 employees. A pre-launch wear test yielded early complaints of skin irritation and similar symptoms, prompting American to retain Intertek Scientific & Regulatory Consultancy to assess the uniforms for potentially harmful chemicals. Intertek’s initial testing identified two potential sensitizers and several irritants but emphasized that these were common fragrance ingredients and appeared only in garments that had already been worn, suggesting contamination by the user rather than by the manufacturing process. Importantly, Intertek did not measure the concentration of these substances, noting whether harm could occur depended heavily on concentration.

A second round of testing several months later resulted in similar conclusions. Nonetheless, American proceeded with the uniform rollout the following year. Complaints from employees escalated almost immediately. Two flight attendant unions encouraged broad reporting of adverse reactions “regardless of whether [employees] had experienced a reaction.” One month later, American allowed employees to revert to older uniforms or choose alternatives and commissioned a third round of Intertek testing along with a health evaluation by the National Institute for Occupational Safety and Health (NIOSH).

The third Intertek analysis, conducted the following month, expanded its scope: it tested new, worn, and unworn Twin Hill uniforms, previous Twin Hill uniforms, and random off-the-rack garments. While various potential irritants and sensitizers were found across all categories, no single chemical appeared in every Twin Hill uniform. Eight chemicals were unique to Twin Hill, but Intertek concluded that they were unlikely to cause sensitization at the levels detected. NIOSH similarly concluded that while it was “possible” that textile chemicals had contributed to some reactions, testing failed to identify any single chemical responsible. NIOSH also found that exposure by mere proximity, without direct skin contact, was unlikely to cause symptoms. American ultimately terminated its contract with Twin Hill, and litigation followed.

Procedural History

Plaintiff flight attendant filed a federal class action in the Northern District of Illinois asserting claims for strict and negligent product liability, battery, and intentional infliction of emotional distress. Plaintiffs later amended their complaint twice, ultimately dropping all unintentional tort claims against American and narrowing their focus to battery and intentional infliction of emotional distress against all defendants, and product liability claims against Twin Hill.

During discovery, plaintiffs disclosed three experts, two of whom addressed causation: Dr. Carson, a physician and toxicologist, and Dr. Hauser, a textile chemist. Both experts concluded that the chemicals detected in the Twin Hill uniforms caused the plaintiffs’ symptoms.

Key Issues

American and Twin Hill filed motions for summary judgment under two main premises. First, defendants argued summary judgment was warranted because the plaintiffs could not convince a reasonable jury that they were exposed to Twin Hill uniforms with harmful defects. Second, defendants argue that no reasonable jury could reach that finding because plaintiffs failed to provide admissible expert testimony on that subject, and that, even if admissible, the plaintiffs’ experts cannot establish that their particular uniforms were defective based on the evidence.

Under Daubert and Rule 702, expert opinions must be grounded in sufficient facts, rely on sound methodology, and reflect a reliable application of that methodology to the facts of the case. Both Dr. Carson and Dr. Hauser fell short of these standards. Neither expert offered any accepted biological theory for how Twin Hill uniforms caused the plaintiff’s symptoms, declining to specify the exact chemical or set of chemicals responsible, dosage, or any associated environmental factors that may affect reaction. They failed to conduct any independent testing, relying almost exclusively on Intertek’s findings without addressing critical gaps for a lay jury to find causation. Dr. Carson opined that any level of exposure to the detected chemicals was harmful. However, both the court and the Seventh Circuit have rejected “any exposure” theories as unscientific unless supported by robust data, which was not provided here. Experts must establish a threshold dose at which a substance becomes harmful and demonstrate that the plaintiff was exposed to at least that amount. Courts expect experts to do more than repackage third-party findings. Experts must apply reliable methods and ground their opinions in specific, testable data.

To bolster his opinion and lack of reliable scientific support, Dr. Carson claimed to have invoked the “Bradford Hill criteria,” a methodology used to evaluate whether a statistical association supports a causal relationship. But as the court explained, the Bradford Hill framework begins with identifying an existing statistically significant association; it does not create one. Dr. Carson failed to establish such an association and instead relied on anecdotal complaints from American employees to infer causation without even specifying the specific chemical or set of chemicals responsible for the symptoms. This backward application undermined the reliability of his analysis. Courts have repeatedly held that Bradford Hill is not a shortcut around insufficient epidemiological data.

Finally, the court faulted plaintiffs’ experts for failing to rule out alternative explanations for plaintiffs’ symptoms. Experts must affirmatively eliminate other plausible causes, particularly when medical records or broader garment testing (like Intertek’s) raise competing possibilities. Dr. Carson failed to address potential external sources of contamination suggested by Intertek, nor did he account for alternative explanations hinted in the plaintiff’s medical records.

The court granted the defendants’ motion for summary judgment in full, finding that the plaintiffs failed to prove by a preponderance of the evidence that they were exposed to harmful defects in the Twin Hill uniforms that caused their symptoms. Employee complaints were unreliable and inconsistent, the Intertek testing provided limited insight into the source, characteristics, toxicity levels, or specific chemicals responsible for the symptoms, and both Dr. Carson and Dr. Hauser failed to fill these critical evidentiary gaps. As a result, the plaintiffs could not meet their burden.

Conclusion

Zurbriggen stands as a clear reminder that toxic tort plaintiffs face a high evidentiary bar to establish causation. When causation depends on complex chemistry or epidemiology, expert testimony must be not only credible but firmly rooted in sound methodology and reliable data. Courts will not permit juries to fill scientific gaps with speculation, especially when the connection between exposure and injury lacks a scientifically supported explanation. For defendants, Zurbriggen offers a straightforward defense playbook: rigorously challenge expert opinions for methodological weaknesses early on, and leverage Rule 702 and Daubert to exclude unreliable testimony before the matter reaches the jury.

CPSC Changes Rules for Amazon

10 Jun 2025

ABSTRACT: The CPSC has ruled Amazon a “distributor” under the Consumer Product Safety Act, expanding its liability for product safety in its Fulfilled by Amazon Program. Amazon is challenging the decision in federal court, citing the Supreme Court’s recent Loper Bright ruling limiting agency deference.

On July 29, 2024 the Consumer Product Safety Commission issued a unanimous decision and order categorizing Amazon as a “distributor” under the Consumer Product Safety Act. This ruling grew out of an ongoing dispute originating with an administrative complaint against Amazon regarding its Fulfilled by Amazon (“FBA”) Program in 2021. Nearly 400,000 products sought to be sold by Amazon were at issue in the administrative litigation.

As a “distributor,” Amazon would be subject to CPSC regulations, including reporting, recall, mandated refunds, fines and citations.

“Distributor” v. “Third Party Logistics Provider”

The CPSA defines a “distributor” as “a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such products.” U.S.C. § 2052(a)(8). Further, the CPSA defines “distribute in commerce” as “to sell in commerce, to introduce or deliver for introduction into commerce, or to hold for sale or distribution after introduction into commerce.” U.S.C. §§ 2052(a)(7).

On the other hand, a “third-party logistics provider” is defined as “a person who solely receives, holds, or otherwise transports a consumer product in the ordinary course of business but who does not take title to the product.” U.S.C. § 2052(a)(17).

In its July 2024 order, the CPSC found that Amazon’s FBA Program fit squarely within its definition of a “distributor,” primarily because of Amazon’s control over the sale and storage of goods processed. The CPSC found that Amazon warehoused goods to be sold supplied by third-party sellers for subsequent delivery within its FBA Program. The CPSC’s ruling emphasized Amazon’s control over all facets of the sale within the FBA Program, including screening products for the program, formatting sales information within the program, communicating with customers directly relating to product returns or exchanges and pricing. The CPSC found specifically that these factors, and others relating to Amazon’s distribution of goods within the FBA Program, required that it be identified as a “distributor.”

Amazon argued that it was a “third-party logistics provider” and not a “distributor” because it did not take title or ownerships in the products sold on the platform as required within the common law understanding of the role of a distributor. Amazon argued the common law definition should be used to “fill the gap,” as there was ambiguity in the statute’s definition of “distributor.” Further, Amazon argued it simply holds or otherwise transports a product but does not take title as is required to be categorized a distributor under the CPSA. The CPSC summarily denied any ambiguity in the statute.

Amazon has since filed suit for judicial review of the CPSC’s decision in the United States District Court for the District of Maryland arguing the CPSC expanded its jurisdiction with additional remedial requirements in its July 2024 ruling and further arguing Amazon should be classified as a third-party logistics provider.

Loper Bright and Its Impact

In 2024, the United States Supreme Court issued its decision in Loper Bright Enters. v. Raimondo, reducing the deference the district courts are required to accord federal agency interpretation of their own statutes. Under this new framework of administrative review, Amazon and like distributors may have an opportunity to challenge the CPSC’s designation of them as distributors. Amazon has cited to Loper Bright in its petition for judicial review.

Moving Forward

The CPSC’s ruling reflects a broader concern regarding consumer safety in the era of e-commerce. The CPSC’s ruling now requires Amazon, and other online distributors who provide a sales platform as well as warehousing, delivery, and customer service, to do the heavy lifting when it comes to product safety including reporting, recalls, mandated refunds, etc. — responsibilities that have historically fallen to manufacturers and retailers of products within the chain of distribution.

In the wake of the CPSC’s ruling, online platforms utilizing hybrid fulfillment or sales models like Amazon’s FBA Program should be aware of heightened regulatory scrutiny of their activities. While Amazon was historically successful in arguing that it was merely a platform for the sale of products by others, its control over the process has, for the moment, expanded its liability to the CPSC and potentially others for the sale of hazardous products. Online platforms facilitating the sale of products for others should watch these developments closely as Amazon’s suit for judicial review of the CPSC designation proceeds before the United States District Court for the District of Maryland.

U.S. Supreme Court Expands the Scope of Potential Civil RICO Claims

30 Apr 2025

ABSTRACT: The United States Supreme Court has resolved a circuit split on the question of whether a plaintiff may bring a civil RICO claim for business or property loss resulting from a personal injury. In a 5-4 ruling, the Supreme Court determined that a civil RICO claim may be brought for a business or property loss even if it is derivative of a personal injury, potentially leading to a significant increase in civil RICO claims.

In Medical Marijuana Inc. v. Horn, the United States Supreme Court has resolved a circuit split, holding that a plaintiff may bring a civil RICO claim for business or property harm resulting from a personal injury. Douglas Horn, a commercial truck driver, injured his back and shoulder in an accident. Months later, after unsuccessfully trying numerous treatments for his chronic pain, he began using “Dixie X,” a product sold by Medical Marijuana, Inc., which was infused with CBD and which Medical Marijuana marketed as being THC-free. Several weeks later, Horn’s employer selected him for a random drug screening, which detected THC in his system. After refusing to complete a substance-abuse program, Horn’s employment was terminated.

Horn sued Medical Marijuana in federal district court, asserting a number of state-law claims as well as a civil RICO claim. Horn alleged that Medical Marketing was a RICO enterprise engaged in the marketing, distributing, and selling of Dixie X. He also alleged that Medical Marijuana’s false or misleading advertising involved mail or wire fraud and constituted a pattern of racketeering activity. The district court granted summary judgment on the RICO claim, finding that Horn’s lost employment arose from the personal injury he suffered due to the THC introduced into his system. Therefore, his lost employment was derivative of his personal injury, and he was not injured in his business or property such that he could pursue a cause of action under RICO. On appeal, the Second Circuit reversed, finding that the term “business” could encompass an individual’s employment and was not strictly limited to a commercial or industrial enterprise, concluding that Horn was “injured in his business” when he lost his job.

The Supreme Court granted certiorari to resolve the circuit split on whether economic harm resulting from personal injury constitutes an “injur[y] to business or property” under RICO or are only personal injury damages. The Supreme Court limited its holding to the interpretation of the term “injured,” noting that it did not decide the underlying questions of whether Horn suffered a personal injury when he ingested THC or whether the Second Circuit correctly interpreted the term “business” to include employment.

Section 1964(c) provides that “[a]ny person injured in his business or property by reason of a violation of [RICO] may sue…” The Court determined that the ordinary meaning of the term “injured” is to “cause harm or damage to,” and therefore, a plaintiff is injured in his business or property under Section 1964(c) if his business or property has been harmed or damaged. The Court noted that Section 1964(c) implicitly excludes recovery of damages for personal injury but noted that the “business or property” requirement applies to the “kinds of harm for which the plaintiff can recover, not the cause of the harm for which he seeks relief.” In other words, a plaintiff may recover damages for business or property loss under RICO even if the loss resulted from personal injury.

In doing so, the Supreme Court rejected Medical Marijuana’s and the principal dissent’s arguments that the definition of the term “injured” as used in Section 1964(c) should be limited to the “invasion of a legal right,” noting that the context of the statute cut in favor of using the ordinary meaning rather than the specialized legal meaning. The Court also dismissed Medial Marijuana’s assertions that the presence of the term “damages” suggests that “injured” conveys a specialized meaning because otherwise the terms would be interchangeable as meaning “loss, hurt, or harm.” The Court responded that the term “damages” already has a specialized legal meaning referring to monetary damages, rather than general loss or harm, so there was meaningful variation in the use of the two separate terms.

The Court majority rejected the defendant’s argument that Court rulings in antitrust cases compel the conclusion that RICO does not apply to personal injury losses or damages. First, the Court denied that antitrust law requires plaintiffs to assert business or property claims that are consistent with particular common-law torts. Second, the Court pointed out that a violation of antitrust law requires a particular type of injury, “an injury of the type the antitrust laws were intended to prevent.” However, the Court specifically declined to extend a similar requirement to civil RICO claims. In other words, the Court has held that a civil RICO plaintiff does not have to specifically allege a racketeering or RICO-type injury, only that a business or property harm resulted from the defendant’s RICO activities.

The Court also rejected Medical Marijuana’s proffered definition of “injured” due to the difficulty of determining whether a plaintiff has asserted a qualifying “legal right.” The Court noted that Medical Marijuana’s proposed sources—the complaint, state law, and general tort principles—would create a lack of consistency in what constitutes a “legal right.” The Court reasoned that it would be difficult to fit the allegations of a complaint asserting a civil RICO claim into a particular business or property tort, because a number of RICO offenses do not have obvious tort analogues, such as harboring undocumented immigrants and trafficking in counterfeit labels for phonorecords. Additionally, torts are not neatly categorized under “business,” “personal,” or “property” torts under state law, and relying on state law to determine a “legal right” would create significant choice-of-law issues. Finally, the Court noted that applying “general tort law” to determine a “legal right” does not solve the issue because tort law is not static or uniform, and there would be circumstances in which no majority rule exists, the law is unsettled, or there is no analogous tort.

The Supreme Court attempted to assuage fears that its ruling would “eviscerate RICO’s ‘business or property’ limitation” by potentially converting any personal injury claim into a RICO claim. The Court emphasized that RICO still requires a direct relation between the injury asserted and the injurious conduct alleged. Specifically, the Court noted that this requirement may present an “insurmountable obstacle” in Horn’s case, due to the number of steps in his theory and the actors involved. RICO also requires a plaint to establish a pattern of racketeering activity. Finally, the Court noted that RICO will not be implicated by all monetary harms because “business” may not include all aspects of employment and “property” “may not include every penny in the plaintiff’s pocketbook.”

Finally, the Court recognized that “civil RICO has undeniably evolved ‘into something quite different from the original conception of its enactors’” since suits are more often brought against ordinary business than “archetypal, intimidating mobsters.” However, the Court noted, “[i]f the breadth of the statute leads to the undue proliferation of RICO suits, the correction must lie with Congress.”

Despite the assurances of the Court, the Court’s ruling in this case potentially opens the door to a vast influx of civil RICO filings because plaintiffs can now allege that they suffered a business or property loss as a result of a personal injury. As a result, businesses may be subject to increased RICO lawsuits, though it remains to be seen whether plaintiffs’ claims will ultimately be successful.

Missouri State Appellate Panel Allows Plaintiff to State a Claim for Products Liability Against Lyft for its Mobile Ridesharing App

09 Apr 2025

ABSTRACT: In a matter of first impression, a Missouri Court of Appeals Eastern District panel has held that mobile ride sharing apps may in appropriate circumstances qualify as “products” for purposes of products liability claims.

In a matter of first impression, a majority of a three-member panel of the Missouri Court of Appeals Eastern District held that in certain circumstances mobile ride sharing applications may be considered products to support product liability claims at the motion to dismiss stage. In doing so, the panel applied a new test. The dissenting member concurred with the new test but would have sustained the trial court’s dismissal of the claims on the grounds that the allegations in Plaintiff’s Petition did not satisfy that test. Plaintiff’s lawsuit asserted both products liability and negligence claims; this blog focuses on the former.

The Alleged Incident and Plaintiff’s Claims

The case arose from the death of a Lyft driver, Andrew Ameer, who was killed when he stopped to pick up a passenger. Two minors had requested a Lyft ride using a false name, false email address, and an anonymous form of payment. When Mr. Ameer stopped at the requested pick-up location, one of the defendants and another minor pulled guns on Mr. Ameer to rob him. During this altercation, Mr. Ameer was shot and killed.

The plaintiff, Mr. Ameer’s mother, filed a petition alleging products liability and negligence claims against Lyft along with other claims against the minor defendants. The products liability claims alleged that Lyft’s rideshare app was defective because it did not have proper identity, age, and GPS verification technology and data pattern analysis to screen out fraudulent riders like the assailants in this case. Further, the petition claimed that Mr. Ameer’s death was caused by this defect in the app.

The circuit court dismissed all products liability and negligence claims against Lyft. When evaluating a motion to dismiss, a court assumes all facts alleged are true. But here there was an important threshold question for the court to decide: to survive Lyft’s motion to dismiss, plaintiff’s product liability claims for strict liability defective design, negligent design, and negligent failure to warn all required that the allegedly defective Lyft app is considered a product.

The Appellate Court’s Analysis

On appeal, the Court first evaluated whether the Lyft app and other mobile ridesharing apps are products. In past decisions, Missouri courts have found that scouting programs, the supply of electricity, medical services, and services in general are not products for the purpose of product liability claims. On the other hand, tangible items such as cigarettes, seats in a car, plane parts, and chain and rachet systems are products.

Writing for the majority, Judge Clayton first noted that mobile ridesharing apps are not comparable to either tangible items or services. Instead of analyzing the claim through the lens of traditional products liability categories, the Court applied a new test, i.e.: to survive a motion to dismiss, a products liability claim against a mobile ridesharing app must allege facts that indicate (1) the app has sufficient similarities to a tangible product, and (2) the injury or death resulted from the defect in the app itself, whether in the design or functionality, rather than from problems with the app developer’s services or some other aspect of its business model.

Assuming all the alleged facts and reasonable inferences therefrom were true, all members of the panel found that the Lyft app was sufficiently similar to a tangible product under the first part of the test. To purchase or sell a ride, both the passenger and driver must download and use the Lyft app. The alleged facts indicate that Lyft is comparable to designers of tangible products because Lyft profits from the Lyft app and creates a demand for and reliance on the app for both drivers and passengers.

The Majority’s Reasoning

The Court of Appeals majority further held that the petition alleged Mr. Ameer’s death resulted from a defect in the Lyft app itself, satisfying the second part of the test. The petition alleged that the Lyft app was defective and unreasonably dangerous because it failed to protect drivers from fraudulent passengers through data verification technology of age, identity, violent propensity, and GPS coordinates. Additionally, the petition alleged that the minors took advantage of the defects of the Lyft app to fraudulently request a ride and ultimately shoot and kill Mr. Ameer. Notably, the petition alleged that Lyft has implemented measures in other states to verify the identity of potential passengers, indicating that the defect could be have been avoided in Missouri.

Accordingly, the panel reversed the dismissal of the product liability claims against Lyft and allowed the case to continue in the trial court. While not discussed in depth here, the Court also reversed the dismissal of the negligence claims against Lyft.

The Dissenting Opinion

In his dissenting opinion, Judge Torbitzky criticized the finding that the purported defect which caused Mr. Ameer’s death arose from the app itself. Instead, Judge Torbitzky described the issue as a failure to screen and verify potential passengers – which arises from Lyft’s business model and how it provides its ridesharing service. The alleged facts indicate that Lyft has access to information and technology which could verify the identity of passengers thus preventing criminal actors. However, this faults Lyft for the way it runs its business, not the app itself. In other words, the fact that Lyft chose not to utilize identification verification in Missouri is a business decision, not a defect in the app.

According to Judge Torbitzky, the facts of this case are unlike the two cases cited by the majority. One of these cases involved a Lyft driver who, while distracted by the Lyft app, hit and injured the plaintiff while driving. There the plaintiff alleged that the way the app was designed distracted the driver and caused the accident. The other case involved a verified Lyft driver who uploaded a current photo and another person’s license, with photos that did not match. This Lyft driver later sexually assaulted a passenger. There the passenger claimed that the app was defective because it failed to distinguish between the actual driver’s photo and the photograph on the driver’s license when verifying the driver.

Both of these cases involve an existing function of the app which allegedly caused the plaintiffs’ injuries. Judge Torbitzky notes that to allege a defect in the Lyft app, the defect must arise from a function of the app which was defectively performed, not a new function that the plaintiff asserts the app should have performed. Thus, because the Lyft app never intended to verify the passengers’ identities, there was no defect in the app itself.

Implications Moving Forward

For now, according to the panel, to survive a motion to dismiss, a products liability claim against a mobile ridesharing app must allege facts that indicate (1) the app has sufficient similarities to a tangible product, and (2) the injury or death resulted from the defect in the app itself, whether in the design or functionality, rather than from problems with the app developer’s services or some other aspect of its business model. This decision did not hold that the Lyft app is necessarily a product or that it has a defect– it only allowed plaintiff to survive the pleading stage. Considering that this case is a matter of first impression, this decision may not be the last word on the issue. We will continue to monitor future developments in this case (including possible review by the Missouri Supreme Court) and will report on any future cases that address if and when a ride-sharing app may be considered a defective product, under Missouri law.

Ameer v. Lyft, Inc., No. ED112455 (Mo. Ct. App. Mar. 4, 2025).

Judicial Hellholes 2024/2025: A Rising Storm of Litigation Abuse

19 Feb 2025

ABSTRACT: The Judicial Hellholes report for 2024/2025, released by the American Tort Reform Foundation (ATRF), shines a harsh but not unexpected spotlight on the ten jurisdictions across the U.S. where civil litigation has continued to spiral into imbalances favoring plaintiffs and excessive verdicts/damage awards. The report paints a particularly grim picture of the current climate, jury trends and excessive awards in a system in which "nuclear verdicts" and plaintiff-friendly rulings are more the norm, driving economic disruption and rising litigation abuse.

Cook County’s Litigation Crisis: Top 10 Judicial Hellhole Status Cemented by Rising BIPA Claims, Asbestos Filings, and Nuclear Verdicts

While Cook County, Illinois dropped slightly from its perch as the second largest so-called “Judicial Hellhole,” it stayed within the top 10, now ranked as the sixth largest Judicial Hellhole, and remains one of the most plaintiff-friendly jurisdictions across the United States.

As we have been reporting on for the past two years, filings of “no injury” Biometric Information Privacy Act (“BIPA”) litigation have a stranglehold on Illinois courts. BIPA filings spiked up 65% in 2023 following two major Illinois Supreme Court rulings, the first of which drastically expanded the statute of limitations for filings, leading to larger class-action suits. The Illinois Supreme Court’s second ruling then multiplied liability claims by counting each biometric scan or transmission to a third-party as a separate claim, exponentially increasing potential damage claim amounts. At the time, the Illinois Supreme Court refused to be influenced by policy arguments related to excessive verdicts in BIPA litigation, leaving the issue to be addressed by Illinois’ legislature. See Cothron v. White Castle System, 2023 IL 128004 (2023). In an encouraging first step, in August 2024, Governor J.B. Pritzker signed into law S.B. 2979, which reversed Cothron, limiting BIPA claims to a single violation per plaintiff regardless of the number of biometric scans or transmissions of that data to a third party. Even under S.B. 2979, which rolled back the claim limit to that which existed prior to the 2023 Illinois Supreme Court decision, the potential for unreasonable judgments or settlements remain, given that the number of claimants in the class typically rests in the hundreds or thousands. Illinois is expected to continue to be plagued by an inordinate amount of information privacy act cases of all types.

Asbestos litigation filings also continue to grow in Cook County, with filings up in 2024 approximately 33% over the prior year, no doubt spurred by astronomical nuclear jury verdicts and plaintiff-friendly rulings by the trial court bench in asbestos talc litigation, which we reported on in December 2024, including drastically limiting the scope of what a business’ representative can testify to at trial. Another disheartening ruling from the Ramirez case involved barring the business’ expert witness from providing any testimony regarding genetic causes of cancer, despite her expertise in that field, gutting one of the defense’s key medical causation theories. There was pushback in asbestos litigation from at least one Illinois business against the Simmons Hanly Conroy LLP firm, with J-M Manufacturing filing a complaint in federal court in the Northern District of Illinois, alleging fraud and racketeering against the Simmons firm based on a pattern of “perjured testimony, suppressed evidence, and baseless claims,” including examples of filings involving dozens of defendants being named, regardless of any good-faith belief that the plaintiff was exposed to asbestos related to that defendant. The Simmons firm expanded its footprint in Cook County in 2024, increasing the number of filings in the jurisdiction over 2023, and was also the firm representing the plaintiff in the Ramirez trial verdict.

These nuclear verdicts from 2024 are continuing to raise Cook County and Illinois’ notoriety and long history for nuclear verdicts. In 2024, the U.S. Chamber of Commerce reported on a study of nuclear verdicts nationwide from 2013 – 2022, where Illinois ranked fifth nationwide over that period, with “all but a handful” of the Illinois nuclear verdicts coming from Cook County. If Illinois’ Attorney General Kwame Raoul and the plaintiffs’ bar get their requested relief of abolishing the doctrine of intrastate forum non-conveniens, Cook County can expect an even greater flood of suits being filed of all types.

Based on these developments in 2024, Cook County, Illinois remains a very dangerous jurisdiction for businesses to defend themselves, replete with plaintiff-friendly judges and a jury pool ready to hand out record verdicts.

The City of St. Louis, Missouri (#7): The Asbestos Litigation Hub and Ground Zero for Nuclear Verdicts

St. Louis City continues its long-standing reputation as a Judicial Hellhole, maintaining a position within the top 10 for yet another year. The City has firmly entrenched itself as a national hub for asbestos and toxic tort litigation, driven by its plaintiff-friendly legal environment and permissive approach to scientific evidence. Asbestos litigation in St. Louis is not only prolific but increasingly dominated by out-of-state plaintiffs drawn to the jurisdiction by its history of generous verdicts, which are often not tied to any meaningful evidence and are purely based on speculation and emotion.

In September 2024, a St. Louis City jury delivered a staggering $462 million verdict against Wabash National Corp. over a fatal highway crash, including $450 million in punitive damages. Plaintiffs' attorneys in that case argued that Wabash saved this amount by manufacturing trailers with allegedly defective rear impact guards (RIGs) for decades—despite the fact that the RIG in question met federal standards when built.

A driver of damages in this case was also the Court’s decision to keep key evidence was withheld from the jury due to Missouri’s “seatbelt gag-rule,” preventing the defense from pointing out that neither plaintiff was wearing a seatbelt, while plaintiffs’ attorneys were allowed to claim the crash would have been survivable with a better RIG. The jury also never heard that the driver was over the legal blood alcohol limit, despite the clear weather and daylight conditions suggesting impairment may have played a role in the fatality.

Another notable highlight of 2024 was the staggering $745 million verdict in the “Whip-It” nitrous oxide case, where a jury assigned United Brands Products 70% responsibility for a fatal crash involving a driver under the influence of inhaled nitrous oxide canisters. This case was tried in St. Louis County – the county just west of the actual City of St. Louis, which was for a long time considered much more conservative and defendant-friendly. The verdict is emblematic of the metropolitan area’s alarming trend toward nuclear verdicts, where damages awarded bear little connection to the actual harm/evidence proven at trial. Cases and verdicts like this set a dangerous precedent for causation, effectively expanding liability far beyond reasonable limits.

Efforts to curtail excessive awards in Missouri have stalled in the state legislature in 2024. Proposed reforms to rein in inflated damage calculations, particularly the use of “phantom damages” based on inflated medical bills, have met with significant resistance. This lack of legislative inertia leaves defendants vulnerable to outlandish damage claims and undermines efforts to restore balance to the tilted system.

Another troubling aspect of St. Louis courts is the growing reliance on questionable scientific evidence. Courts have frequently allowed testimony from experts whose methodologies fail to meet rigorous scientific standards, stacking the deck against defendants. This trend is particularly evident in asbestos/talc litigation, where plaintiffs’ experts often present speculative theories of causation that go unchallenged for the most part.

The legal landscape in St. Louis also faces additional risks from forum-shopping practices. Plaintiffs from across the country seek to exploit Missouri’s lenient procedural rules and favorable jury pools, further exacerbating the jurisdiction’s reputation for “jackpot or lottery” style awards. For the immediate future, we believe that St. Louis will likely remain a preferred venue for high-stakes litigation, to the detriment of defendants, insurers and the broader economy.

King County, Washington (#9): A Growing Threat with Troubling Trends

In an award that no one wants, we would like to highlight King County, Washington for making its debut on the Judicial Hellholes list, reflecting a rapid and concerning shift in its legal environment in the Pacific Northwest. Once considered a relatively neutral venue, King County courts are now becoming a focal point for litigation abuses, characterized by innovative but problematic procedural practices and an openness to adopting plaintiff-friendly legal standards/damage models.

A key driver of King County’s emergence as a Judicial Hellhole is the increasing use of group trials. In one highly publicized 2024 case, the court consolidated multiple claims into a single trial, severely limiting defendants’ ability to present individualized defenses. This procedural tactic undermines due process and fairness by forcing juries to consider complex issues en masse, leading to inflated awards that bear little relation to the specific circumstances of each case/injury.

Another troubling trend is the selective application of laws from other jurisdictions when doing so benefits plaintiffs. King County judges have shown a willingness to override Washington state law in favor of more permissive statutes from other states, further tilting the scales of justice. This practice not only creates uncertainty for businesses but also erodes the integrity of Washington’s legal system.

Expert testimony with questionable scientific underpinnings is frequently admitted, skewing outcomes in favor of plaintiffs. In cases involving product liability and environmental claims, this leniency has opened the door to speculative theories of causation.

King County’s inclusion in the Judicial Hellholes report serves as a warning for businesses operating in the Pacific Northwest. Without intervention from state lawmakers or higher courts, Washington risks the slippery slope of inclusion for opportunistic litigation that undermines both the local economy and the broader legal system.

Oregon: A State on the Brink of Judicial Hellhole Status

While Oregon has not yet broken into the top tier of Judicial Hellholes for 2024-2025, the state’s legal landscape is trending in a troubling direction. Like Washington, we identified a growing wave of toxic tort litigation, with a sharp increase in cases and decisions targeting the timber industry and pesticide use. Oregon courts have shown a marked sympathy for these claims, often adopting expanded interpretations of liability that pave the way for more lawsuits.

The state’s willingness to entertain class-action lawsuits on tenuous grounds is another red flag. Recent cases have demonstrated a troubling propensity to certify large classes based on minimal commonality among plaintiffs, effectively amplifying the risk for defendants. This trend has been particularly pronounced in environmental and product liability cases, where courts have allowed broad theories of harm to proceed despite weak evidence of causation or damages.

Oregon’s legal system also faces challenges from a burgeoning plaintiffs’ bar that is increasingly targeting the state as a fertile ground for litigation. If current trends continue, Oregon risks becoming a more prominent player in the Judicial Hellholes report, with significant implications for businesses operating within its borders.

The Path Forward

The ATRF report highlights the need for comprehensive reforms and new messaging related to judicial balance in Illinois, Missouri, Washington, and Oregon. Without action, these states risk further erosion of their legal systems and the economic stability of their businesses. Legislative leaders and courts must prioritize fairness over opportunistic litigation to prevent these jurisdictions from slipping further into legal chaos.

Right to Repair Laws: An Overview and Legislative Update

09 Apr 2024

ABSTRACT: As manufacturers seek to limit the ability of consumers and third parties to repair their products, state and federal legislators introduce "right to repair" legislation that would loosen those restrictions.

Repairing complicated digital equipment has become increasingly difficult in recent years. In most instances, a consumer in need of a repair of any digital equipment has few, if any, choices for where and how the equipment is repaired. The original equipment manufacturer (OEM) will typically only offer the tools, parts, and information necessary to make those repairs through the OEM itself or a licensed dealer. As a result, consumers and independent repair providers lack the tools and expertise necessary to make these repairs. Further, many products’ warranties are voided if a piece of equipment is repaired by someone other than the OEM or an officially licensed dealer.

There is now a growing effort to enact “right to repair” laws to give consumers more flexibility to repair their own equipment. Generally, these laws grant consumers and independent repair companies access to the tools, parts, documentation, and software required to diagnose, maintain, and repair certain types of equipment. These laws typically require the OEM to provide manuals with specifications, schematics, and software updates to consumers at no cost, to allow the devices to be repaired without voiding the warranty, and to give independent repair companies access to the same tools and repair parts as the OEM on “fair and reasonable terms.” These laws are primarily introduced in the digital equipment industry (typically defined as anything requiring a computer chip), motor vehicles, and the agricultural and construction equipment industry. There have also been attempts to introduce similar legislation covering medical equipment, wheelchairs, educational devices, and motorcycles.

Proponents of these bills argue these laws provide consumers with more freedom to repair their own equipment or choose their own repair shop. They further argue these laws will drive repair costs down by increasing competition and will reduce electronic waste. The opponents of these laws, including the OEMs themselves, argue providing detailed specifications and schematics to consumers and third-party repair companies would reveal valuable trade secrets and proprietary information. They argue this would disincentivize innovation, research, and development of new products. Further, allowing the consumer full repair and maintenance access could lead to modifications that would make the product unsafe or non-compliant with applicable safety or emissions regulations, potentially leading to more injuries or liability to the OEMs.

To date, six states have passed right to repair laws. Massachusetts was the first, passing a motor vehicle right to repair law in 2012 and another in 2020, which required vehicle manufacturers to provide a standardized open data platform to vehicle owners and independent repair facilities. Since 2022, Colorado, New York, Minnesota, Maine, and California have passed various right to repair laws. Currently, approximately twenty-seven states have some form of a right to repair law introduced or pending.

Federal efforts to pass right to repair laws have so far been unsuccessful, although one bill is still active. Rep. Joseph Morelle (D-NY) introduced the “Fair Repair Act,” which would apply to digital electronic equipment, in June 2021. It was referred to the House Energy and Commerce Committee in June 2021 and died shortly thereafter. Sen. Ben Ray Lujan (D-NM) introduced the Fair Repair Act to the Senate in March 2022. As with the House bill, it was referred to committee, where it did not advance. Most recently, Rep. Neal Dunn (R-FL) introduced the “Right to Equitable and Professional Auto Industry Repair Act” or “REPAIR ACT”, seeking to require motor vehicle manufacturers to provide the vehicle’s owner with direct, real-time data related to diagnostics, repair, service, wear, and calibration of parts and systems of the vehicle. It has 50 bipartisan co-sponsors. It was referred to the House Energy and Commerce Committee, where it was most recently forwarded to the full committee for a voice vote in November 2023. The result of that vote has not been reported.

Missouri, Kansas, or Illinois have yet to pass any right to repair legislation. Certain Missouri legislators have attempted to pass these bills on multiple occasions. House Bill No. 975, introduced by Rep. Barry Hovis (R-Cape Girardeau County), would have guaranteed the right to repair any “construction machinery, any mobile heavy equipment or heavy machinery designed for construction or earthwork tasks[.]” The bill was introduced in January 2021 and died in committee in May 2021. Rep. Hovis re-introduced the same bill two more times, HB 2402 and HB 698, in January 2022 and January 2023, respectively. They suffered the same fate, dying in committee shortly thereafter. The Missouri Chamber of Commerce and Industry, a private organization, officially spoke out against HB 2402, arguing it would “threaten [agricultural equipment manufacturers and dealers] security, intellectual property and warranty agreements—not to mention opening them up to undue liability.” Missouri Senator Tracy McCreery (D-St. Louis County) introduced Senate Bill 554 in January 2023. Senate Bill 554 was significantly broader than the house bills, covering all electronic equipment. This also died in committee in May 2023.

Missouri currently has five proposed right to repair bills: 1) HB 1618, introduced by Rep. Brian Seitz (R-Taney County), would protect the right to repair any products “that depend on digital electronics embedded in or attached to them” (excluding motor vehicles); 2) HB 2041, introduced by Rep. Emily Weber (D-Jackson County), would guarantee consumers the same rights to diagnostic and repair information as independent repair providers and authorized repair providers for any electronic product; 3) HB 2475, introduced by Rep. Hovis, seeks the same protections as his earlier bills; 4) SB 1472, introduced by Sen. McCreery, seeks the same protections as her prior SB 554; and 5) HB 2800, a motorcycle right to repair bill introduced by Rep. Seitz. All the proposed bills would make any violation an unlawful practice under the Merchandising Practices Act. These bills are currently in committee and have not received a vote.

Illinois also has active right to repair laws pending. Illinois SB 2669, introduced by Sen. Jill Tracy (R-Quincy), seeks to protect the right to repair agricultural equipment. It was introduced in January 2024 and is currently awaiting committee assignment. Similarly, SB 2680, introduced by Sen. Laura Fine (D-Glenview), was introduced in January 2024 and is awaiting committee assignment. It seeks to guarantee the right to repair home electronic products or appliances. On the House side, Rep. Michelle Mussman (D-Schaumburg) introduced three right to repair bills in February 2023. HB 3593 seeks to guarantee the right to repair digital electronic equipment. HB 3601 looks to protect the right to repair educational technology, and HB 3602 seeks to protect the right to repair electronically powered wheelchairs. All three of these bills are currently in committee and have yet to receive a vote. Similar to the Missouri bills, the Illinois bills make any violation an unlawful practice under Illinois’s Consumer Fraud and Deceptive Business Practices Act.

Kansas does not currently have any right to repair laws proposed or pending. The most recent attempt was House Bill No. 2122, introduced as a committee bill by the Committee on Federal and State Affairs. It was introduced in January 2017 and ultimately died in committee in May 2018. There have been no official attempts to introduce any right to repair laws since.

As these laws are still relatively new, the total effect they may have on repair prices, competition, and liability remains to be seen.