Friday, December 17, 2010

Cook County a "Judicial Hellhole"? Looking into the claims

The American Tort Reform Association has released its annual list of Judicial Hellholes and, once again, Cook County is prominently featured.

The catchy name and scary graphics almost guarantee press coverage and strong reaction. The report hasn't made a big splash in the Chicago papers as of yet, but then again, the report was just released this week. The Daily Herald noted the pending release of the "Judicial Hellholes" report this week with a story, by Ted Cox, quoting Thomas Demetrio (speaking "only partially tongue in cheek") as saying that ATRA's poor ranking of our local courts should be viewed as a "badge of honor."

Actually, Cook County's rating slipped a little in the current report. In ATRA's 2009 ratings, Cook County was the third worst jurisdiction in the country. This year, we were no better, or worse, than fifth.

ATRA blames judges for making jurisdictions into "hellholes." According to this year's report (p. 26), "Judicial Hellhole judges... may favor local plaintiffs’ lawyers and their clients over defendant corporations. Some, in remarkable moments of candor, have admitted their biases. More often, judges may, with the best of intentions, make rulings for the sake of expediency or efficiency that have the effect of depriving a party of its right to a proper defense."

The report goes on to cite some "tricks of the trade" of "Judicial Hellhole" jurists (pp. 27-28), but the report makes no claims as to the extent to which these practices are inflicted on Cook County litigants. Instead, in its description of why Cook County again makes the list (we've been a "Judicial Hellhole, now, since 2005), ATRA cites the following (pp. 10-11):
  • Cook County has "consistently hosted nearly two thirds of the state’s litigation, while serving as home to just over 40% of its population – a proportion that has gradually grown more lopsided over the past 15 years"
The ATRA folks suggest an image of greedy tort lawyers are descending on Chicago from all over the country, plotting to take unfair advantage of our biased courts and generous juries. But the Cook County court system handles a lot of cases -- and most of them are decidedly not tort cases. Collection cases make up a huge percentage of the county docket -- at least a dozen collection cases are filed for each tort case (and medical malpractice and product liability claims make up only a small percentage of the tort cases filed in this or any other American jurisdiction). A lot of the collection cases filed here are tied to one of our larger industries, namely the commodities business. Cook County is often the venue of choice for commodity firms. Persons living from Maine or California routinely consent to be sued in Chicago if they fail to meet a margin call and a deficit remains when their trading accounts are liquidated. Readers are invited to supply other examples in the Comments. But it is neither surprising nor sinister that there would be disproportionately more litigation in a world class financial center, such as Chicago, relative to the rest of the state.
  • In February the Illinois Supreme Court affirmed "a Cook County judge’s ruling that struck down a 2005 law limiting subjective pain and suffering damages in medical liability cases."
The reference is to Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 930 N.E.2d 895 (2010). In this case, the court struck down "caps" on medical malpractice verdicts. This was the third time that the Illinois Supreme Court has invalidated an effort to put "caps" on malpractice verdicts. In other words, the court followed its settled precedent. It's usually the failure to adhere to stare decisis that gets the business groups up in arms about the judiciary.

The report makes some additional claims about the likely effect of Lebron that will be addressed in a future post.
  • "Elsewhere in the county, the litigation engine rolled on as usual with numerous questionable claims and awards, as in previous years." Three examples are provided:
  1. Suit was filed against a Cook County McDonald’s in August 2010, alleging that her hot chocolate was too hot. But no award has been made. The new suit was still pending when the report went to press.
  2. A woman is suing an Ohio vacuum cleaner manufacturer for $200,000 because it sucked hair off the back of her hand. Again, however, the report does not suggest that the suit has succeeded, only that it has been filed.
  3. A factory worker received a $30.4 million verdict in a "popcorn lung" suit alleging "that exposure to an ingredient used in the making of butter-flavored microwave popcorn can cause injury to the lungs."
This last citation sent me into Westlaw, looking for newspaper coverage of the verdict. Sure enough, both the Tribune and the Sun-Times covered the trial of Gerardo Solis, a South Elgin factory worker. According to the September 5, 2010 Tribune article, by Brian Slodysko and Erika Slife, Solis had "worked for various popcorn and popcorn-flavoring plants in the Chicago area since 1987. Over time, Solis, a father of three, developed bronchiolitis obliterans, a rare respiratory disease that has destroyed 75 percent of his lungs, leaving him with the minimum lung capacity a person needs to live. Fireworks displays or second-hand smoke can send Solis into brutal coughing fits, which can cause him to pass out." The damage was allegedly caused by exposure to the chemical diacetyl. Eventually, according to his attorney, Solis will need a lung transplant. (Maureen O'Donnell's September 6 article in the Sun-Times said that Solis is "awaiting" a lung transplant.)

The articles make clear that Solis sued 15 companies and one trade organization and that every single defendant except BASF settled out before trial. The amounts of the settlements were not disclosed.

At trial, according to O'Donnell's article, Solis put on evidence that, back in 1993, BASF's German parent, did a "study on rats that showed diacetyl caused lung damage but did not disclose the findings."

According to the Tribune article, "diacetyl is a naturally occurring compound that gives [microwave popcorn] butter its flavor. Studies have shown that the heated vapors of the chemical diacetyl lead to a breakdown of the airway branches deep in the lungs. The lung scarring is irreversible and can be fatal. " California and the Federal Drug Administration are considering a ban on the chemical and OSHA is considering rules limiting worker exposure to the chemical, although no bans or rules have yet been promulgated.

The Sun-Times noted that BASF was planning an appeal from the verdict.

The ATRA report concludes its review of Cook County (p. 11) by charging that such "rampant abuse of the civil justice system" comes with costs, citing, as an example, that Cook County spent $54 million on litigation involving just the county and its various agencies an amount that "dwarfs counties of similar size in the state and beyond." Actually, there are no counties of 'similar size' in Illinois, and few in the nation -- but it may well be that there may be other reasons, such as pinstripe patronage, that explain the high price tag -- not necessarily (or not exclusively) "the county’s 'infamously plaintiff-friendly courts.'"

Nor is ATRA optimistic about the future of the Cook County court system (p. 11): "[A]mazingly enough, Cook County voters and taxpayers also seem content with the status quo. Though several neutral legal groups deemed four circuit court judges unqualified for the bench, all were narrowly retained by voters in November 2010 elections."

For more background about the American Tort Reform Association, please turn to page two.

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