ABSTRACT: Cook County, Illinois jumps from number 5 to number 2 in the country on the 2023/2024 American Tort Reform Foundation’s “Judicial Hellholes Report,” with the help of BIPA, while St. Louis, Missouri, St. Clair and Madison County Illinois hold their ground thanks to asbestos litigation.
Cook County, Illinois moved up significantly within the top 10, now ranked as the second worst Judicial Hellhole, as Illinois courts and legislature continue to fortify the jurisdiction as one of the most plaintiff-friendly jurisdictions across the United States.
As we anticipated from last year’s trends, filings of “no injury” Biometric Information Privacy Act (“BIPA”) litigation have choked Illinois courts, with seminal rulings in 2023 setting the stage for spurring filings even higher. This legislation requires companies to inform an individual in writing and receive a written release prior to obtaining or retaining personal biometric data, setting statutory minimum damages from $1000 to $5000 to automatically be awarded for each BIPA violation, regardless of the actual injury suffered. February 2023 saw the Illinois Supreme Court expand the statute of limitations for BIPA lawsuits beyond the one-year default limitation period for privacy actions, to a five-year statute of limitations. Tims v. Black Horse Carriers, Inc., 2023 IL 127801, 216 N.E.3d 845 (2023).
Mere weeks later, also in February 2023, the Illinois Supreme Court exponentially expanded potential BIPA liability claims, by ruling that a BIPA claim is created each time a business scans the person’s biometric information and each time it is transmitted to a third party. Cothron v. White Castle System, 2023 IL 128004, 216 N.E.3d 918 (2023). Previously claims were only created for the initial scan and initial transmission to a third-party, but now under the Court’s ruling, new violations are created each time an employee logged into a work computer system, multiplying the viable claims hundreds or thousands of times over per employee. The plaintiffs’ bar has been paying close attention to these rulings, as BIPA filings spiked 65% in the next two months after these decisions. BIPA suits have proven so lucrative that the Illinois Supreme Court has also signaled that it will not be swayed by policy arguments related to increasing excessive verdicts from this litigation, instead punting the issue to be addressed by the legislature.
Based on laws passed by the Illinois legislature and enacted by Governor J.B. Pritzker in 2023, it does not appear that any help will be forthcoming to Illinois businesses from the legislature. In August, Governor Pritzker signed into law H.B. 219, which was fast-tracked through both houses of Illinois’ Congress on a wave of support by the Illinois plaintiffs’ attorneys’ bar association and prominent Cook County plaintiffs’ firms. This law amended Illinois’ wrongful death statute to allow for the recovery of punitive damages in most wrongful death cases. Unlike many other jurisdictions, Illinois also does not cap punitive damages generally, so the Illinois amended Wrongful Death Act now provides a forum unique to most other jurisdictions where unlimited punitive damages can now be sought in wrongful death actions. At the same time, Governor Pritzker also signed H.B. 2231 into law, removing liability protections against rideshare companies like Uber and Lyft, newly categorizing such companies as common carriers, who are now subject to vicarious liability for accidents resulting from their employee drivers.
Illinois courts’ rulings and the enactment of these new laws will likely only exacerbate the already high number of case filings and exceedingly high jury verdict awards. Illinois verdicts have historically been some of the highest in the country on average, even before the COVID-19 pandemic of 2020, ranking as high as fourth place in number of nuclear verdicts over $10 million. However, in September 2023 a Cook County jury set the Illinois record for the largest verdict for a single plaintiff in a personal injury action, awarding $363 million including $325 million in punitive damages. Susan Kamuda and Edward Kamuda et. al. v. Sterigenics U.S. LLC, et. al.No. 2018L010475. These recent court rulings and laws enacted all but make certain that this new record will soon be eclipsed.
Illinois’ courts’ rulings and newly enacted laws along with the already vibrant asbestos litigation throughout Illinois is why both Madison County and St. Clair County are, yet again this year, on the judicial hellhole “Watch list.”
Although Madison County and St. Clair County have fallen off the list, St. Louis has also held strong at number 8 for the last two years thanks to the junk science that has been allowed in cases involving Monsanto and its Roundup week killer, talc, and asbestos cases. But the juries are not just giving nuclear verdicts when junk science is involved. The Karen Chaplin et al v United Brands Products Design Development et al, 20SL-CC06071, known as the ‘Whip-it’ case, is a great example of the nuclear verdicts coming out of St. Louis. In September, a jury awarded $745 million to the parents of a 25-year-old woman killed on a sidewalk outside an urgent care center by a driver who huffed nitrous oxide canisters, “Whip-it”, right before the accident. The two-week case focused on United Brand Products distributing nitrous oxide under the name Whip-It and their conspiracy with a smoke shop to sell the product to customers they knew intended to illegally inhale the gas to get high. The jury bought into the plaintiffs’ argument that United Brands Products should be held responsible for the illegal use of their legal product Whip-It by Mr. Geiger, assessing 70% of the $745 million verdict to United Brands Products.
The Missouri Legislature is not helping as legislative reform has stalled and bills like S.B. 31 get pushed through thanks to the help of the plaintiffs’ bar. S.B. 31 included an overhaul of the collateral source rule in Missouri. It opens a loophole to inflate damages by allowing plaintiffs’ lawyer to introduce evidence of inflated medical bills to show the severity of plaintiff’s injuries, rather than the actual amount of damages sought. This causes “Phantom Damages,” an inflated damages award.
Illinois and Missouri have a long road ahead of them in order to get off the “hellhole list,” and this can only be accomplished through enacting stricter reforms that limit lawsuit abuse, and judiciaries who maintain a sense of balance.
Illinois and Missouri are not the only States with issues. The national ‘hellhole list’ is led by Georgia, the Philadelphia Court of Common Pleas, and the Supreme Court of Pennsylvania, tied at the top; and Cook County, Illinois moving up the list (#2). Holding strong at their previous status are California (#3), New York (#4), South Carolina asbestos litigation (#5), and Louisiana (#7). New to the list is Lansing, Michigan (#6) earning thanks to the Michigan Supreme Court and Michigan Legislature expanding premises and workplace liability and adopting an expansive approach to medical liability.
The upcoming year will show if Mallory v Norfolk Southern Railway Co. opens the doors for these already plaintiffs’ friendly jurisdictions. Plaintiffs’ now have the ability to drag out-of-state defendants into ‘hellholes’ that have little or no connection to the case at hand.