Unless your eyes have started to glaze over at frequent mentions of the meaningless term “judicial hellhole” in media stories, you may have noticed that the American Tort Reform Association (ATRA) has released its annual “judicial hellhole” list. California claimed the top spot, followed by Florida.
What you might not know is that the ATRA is funded by the insurance industry and a variety of businesses in the chemical, tobacco, drug, and medical industries that regularly harm consumers by their careless conduct. Because juries hold defendants in those industries accountable for the harm they cause, ATRA was formed to engage in lobbying efforts that are designed to make it more difficult to win lawsuits against misbehaving corporations.
A New York Times investigation of ATRA’s “Judicial Hellholes” report found that ATRA had no apparent methodology for adding states or counties to its list. The organization simply condemns jurisdictions as “judicial hellholes” because those jurisdictions have not adopted the corporation-friendly laws that ATRA advocates.
Unfortunately, some news organizations report ATRA’s corporate propaganda as if the term “judicial hellhole” is a legitimate and unbiased designation. Media organizations that care about accuracy take the time to report the sources of ATRA’s funding. Responsible news organizations ignore the list, treating it as noise churned out by an organization that wants the public to be more concerned about “hellholes” than the immense harm caused by uncaring drug companies, negligent doctors, and other corporate defendants that are sued for their dangerous behavior.
The Fight Against Fair Trials
A judicial hellhole is any state or county that still allows injury victims to have a fair trial. When juries are allowed to hear the full story about corporate wrongdoing, they typically hold the corporation accountable. Jurisdictions that allow juries to do their job have been branded “judicial hellholes” by the ATRA and the politicians who succumb to its lobbying efforts.
The efforts to undermine the right to a fair trial take many forms. One is the battle against expert witnesses. Many states have passed laws that require experts in medical malpractice cases to practice in the same field of medicine as the physician who is accused of negligence. For example, a court might decide that a cardiologist cannot testify about an internist’s negligent failure to diagnose heart disease because cardiologists and internists practice in different fields of medicine. The fact that the cardiologist is eminently qualified to express an opinion about the standard of care an internist should follow when presented with symptoms of heart disease is not seen as a legitimate reason to let the cardiologist testify as an expert.
Lobbyists try to restrict the availability of expert witnesses because they know that doctors do not like to testify against other doctors. Finding experts in a medical malpractice case can be challenging. Finding an expert who practices in the same field and (as some states require) is licensed in the same state might be nearly impossible. Since lawyers might overcome that obstacle by recruiting a retired physician as a witness, medical industry lobbyists have persuaded some states to bar experts from testifying if they have not actively practiced medicine within the last few years.
The Judicial Hellhole meme is just one of ATRA’s many efforts to vilify plaintiffs (who are inevitably labeled as “fraudulent”), trial lawyers (but only those who represent plaintiffs), juries (but only when they return a verdict against a corporate or medical defendant), and judges (except for the judges who bend over backwards to keep plaintiffs from having a fair trial). Efforts to undermine the civil justice system include persuading the public that most lawsuits are frivolous and that juries are “out of control,” notwithstanding all the studies showing that the opposite is true.
Other “tort reform” efforts championed by ATRA and like-minded organizations include limiting the compensation that injury victims can receive, limiting the circumstances under which punitive damages can be awarded, and limiting the attorney’s fees that can be paid to plaintiff’s lawyers (but not to insurance company lawyers). The U.S. Chamber of Commerce has embarked on a long-term mission to promote the election of business-friendly judges, often by portraying them as “tough on crime” while concealing their true agenda.
Our civil justice system is meant to give ordinary people a fair chance to prove that they were harmed by the careless actions of another person or business. When powerful industries try to undermine the civil justice system by condemning places as “judicial hellholes” because they still give ordinary people a fair chance to prove their case, they risk destroying the only branch of government that is designed to be fair to everyone.