U.S. Chamber decries "jackpot justice" in Illinois

Rich Miller reports today on claims by the U.S. Chamber of Commerce that "Illinois has one of the five worst legal climates in the nation." The graphic at left was also on the front page of the Capitol Fax Blog today; the copy here isn't actually linked to any site.

But if you were to click on the graphic on Mr. Miller's page (as I did) it would take you to this page, which is the Illinois page of the U.S. Chamber of Commerce report discussed on the Capitol Fax Blog.

The Chamber report quotes Tom Donohue, president and CEO of the U.S. Chamber as saying, "Recent positive rulings by the Illinois Supreme Court and improvements in Madison County courts have been more than cancelled out by growing lawsuit abuse problems in Cook County courts and by a full-scale trial lawyer assault in the state legislature."

The Chamber report appears to be a companion piece for the report put out by the American Tort Reform Foundation toward the end of 2007 labeling Cook County a judicial hellhole. (The link will take you to my December 27, 2007 post on the ATRF report.)

In fact, if you take a few minutes to follow the links, you will see that the reports are very similar. What moved ATRF to declare Cook County a judicial hellhole? If you waded through the excited verbiage, there were three reasons proffered:

• A 2007 amendment to the Wrongful Death Act, 740 ILCS 180/1 et seq. Section 2 of the Act was amended to permit juries in such cases to consider, as elements of damage, the "grief, sorrow, and mental suffering" of "the surviving spouse and next of kin of the deceased person."

• Cook County Circuit Court Judge Diane Joan Larsen's order invalidating "a state legislative limit on potentially infinite pain and suffering awards in medical malpractice cases"; and

• A "Mixed Bag of Excessive Verdicts."

And what does the U.S. Chamber of Commerce offer as reasons for disparaging the court system in the entire State of Illinois? Chief among them:

• According to U.S. Chamber Institute for Legal Reform (ILR) President Lisa Rickard, trial lawyer allies in the state legislature passed a law last year creating a new amorphous category of damages in wrongful death actions likely to lead to much higher lawsuit awards.
  

• "[L]ast November, a Cook County judge struck down a significant legal reform designed to control runaway awards in medical malpractice lawsuits."

Also cited is pending legislation to revive the Structural Work Act. The original Structural Work Act was repealed on February 14, 1995 by P.A. 89-2 -- but the U.S. Chamber is clearly not saying that the years since 1995 have constituted a Golden Age for Illinois businesses.

I don't mean to be overly basic here, but legislatures enact laws, courts apply the statutes in specific cases. It's not "lawsuit abuse" if a party utilizes a lawfully enacted statute in support of a claim or a defense.

As for Judge Larsen's order on malpractice caps, the Illinois Supreme Court will eventually determine whether she was or was not correct in her analysis. I have not studied Judge Larsen's order and I have no inside information about how it might fare on appeal.

But I do know that a trial judge, like Judge Larsen, is not free to do whatever she pleases in evaluating a challenge to the constitutionality of a statute. She is required to follow the law and apply the precedents of past cases. A prior attempt to impose caps on damages in several kinds of tort cases was declared unconstitutional in Best v. Taylor Machine Works, 179 Ill.2d 367, 689 N.E.2d 1057 (1997). An attempt to impose caps on damages in medical malpractice case was found unconstitutional in Wright v. Central Du Page Hospital Association, 63 Ill.2d 313, 347 N.E.2d 736 (1976).

Is the U.S. Chamber of Commerce (or the ATRF or the ILR) really suggesting that trial judges disregard binding precedents as necessary to promote a particular partisan agenda?

I had thought these chamber of commerce types were sober-sided, gray flannel types. Apparently, however, they're really wild-eyed radicals.