"Judicial Hellholes" - A trio of Illinois Counties Move Up the List while the City of St. Louis Remains an Honoree

ABSTRACT: To no one's surprise, three Illinois Counties (Cook, Madison and St. Clair) and the City of St. Louis are again included in the 2021/2022 American Tort Reform Foundation's "Judicial Hellholes Report."

Yet again, Cook, Madison and St. Clair Counties in Illinois and the City of St. Louis are included in the 2021/2022 “Judicial Hellholes Report” from the American Tort Reform Foundation. This year, the trio of Illinois counties moves up from 8^th place on last year’s list to 5^th place, and the City of St. Louis remains in 7^th place. The list is rounded out with California (#1), New York (#2), the Georgia Supreme Court (#3), the Philadelphia Court of Common Pleas & the Supreme Court of Pennsylvania (#4), Louisiana (#6), and South Carolina asbestos litigation (#8). The trio of Illinois Counties lay across the Mississippi River from the City of St. Louis and are all plaintiff-friendly venues, with a mass influx of product liability litigation (including talc and asbestos lawsuits), highlighting the need for liability reform.

While asbestos cases decreased nationwide by 11% in 2020, both Madison and St. Clair Counties in Illinois have seen an increase in filings in asbestos litigation in the last year. Plaintiffs’ firms continue to seek out these venues for their overall low evidentiary standards, plaintiff-friendly judges, and persistent ability to find new and unique defendants, despite the increase in defendant bankruptcy filings over the last few years. Additionally, Cook County remains a hotbed for asbestos litigation. Despite limited resources due to the Covid-19 pandemic, Cook County has hosted 3 asbestos trials to verdict since October 2021, with more on the horizon for early 2022.

Illinois is also flooded with “no-injury” Biometric Information Privacy Act (“BIPA”) lawsuits, a majority of which are brought by employees against their employers, due to the fact that a 2019 Illinois Supreme Court decision held that a plaintiff does not need to show any harm in order to collect damages under the Act, which requires companies to inform an individual in writing and receive a written release prior to obtaining or retaining his or her biometric data. This has triggered a slew of litigation for any company that uses fingerprints, voiceprints, hand or facial scanning as identifiers for specific access to its systems or for clocking in and clocking out. Unsurprisingly, this has been further complicated by a September 2021 Illinois appellate court decision that found that a five-year statute of limitations applies to most BIPA claims, so long as there is no dispute that the person’s information was publicized (in which case a one-year statute of limitations would apply).

Other factors pushing Illinois Counties back up in the rankings include various legislative enactments, including the Prejudgment Interest Act and S.B. 2406 which will break up the 20^th Judicial Circuit Court and redraw the supreme court districts for the first time since 1964.

The City of St. Louis, similar to the Illinois Counties described above, continues to draw a product liability litigation crowd, including in cases involving talc, Roundup® weed killer, and asbestos. This summer, the United States Supreme Court got in on the action, when in June 2021, it announced that it would not review a landmark Johnson & Johnson cosmetic talcum powder case which resulted in a $4.69 billion verdict ($550 million in actual damages and $4.14 billion in punitive damages) in the St. Louis Circuit Court but was reduced by the Missouri Court of Appeals for the Eastern District to $2.12 billion ($500 million in actual damages and $1.62 billion in punitive damages).

Missouri courts continue to push the boundaries when it comes to unreasonable punitive damages awards, as can be noted in the J&J talc litigation. Moreover, in March 2021, the Missouri Supreme Court affirmed a lower court’s decision to award punitive damages in a medical malpractice case, applying a relatively lax standard. Specifically, the Court in Rhoden v. Missouri Delta Med. Ctr., ruled that “acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.” Effective and applicable to causes of action arising after August 28, 2020, newly enacted legislation - SB 591 - takes this issue head on and requires that a jury find “the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.” § 538.210.8, RSMo. (2020). Further, the statute explicitly states that: “Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.” The legislation was enacted as a counter to the intermediate appellate court’s decision in Rhoden, and its failure to recognize the distinction between negligence and intentional or malicious misconduct. This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards. The implications of this decision have yet to be seen, but the hope is that at least for cases filed after August 28, 2020, decisions like Rhoden will have become a thing of the past.

While the Missouri legislature is moving forward in enacting stricter reform related to lawsuit abuse, it remains to be seen what impact, over time, those laws will have on litigation in the City of St. Louis. Until then, we will likely continue to see it included on the list of “Judicial Hellholes”.