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December 18. 2013 12:23AM

NH makes tort reform group's 'Judicial Hellholes' list

New Hampshire made the "watch list" in the American Tort Reform Foundation's annual "Judicial Hellholes" report. The group singled out last spring's $236 million verdict against ExxonMobil for MtBE contamination as a sign of justice being meted out in an "unfair and unbalanced manner."

That case showed New Hampshire's liability environment to be "awash with plaintiff-friendly rulings, contingency-fee lawyers, and legislators looking to use a record $236 million verdict as a windfall to fatten state coffers, instead of the environmental cleanup for which it was intended," according to the report.

But "Judicial Hellholes" is itself awash with hyperbole, according to a veteran law professor.

Albert "Buzz" Scherr, professor of law at the University of New Hampshire School of Law, said "it's a stretch to draw any conclusion whatsoever from this case."

"I don't think there's any civil trial lawyer in New Hampshire who thinks it's a plaintiff-friendly state," Scherr said in a phone interview. "It really isn't."

The MtBE case is not a regular tort case, where a party is suing, say, an international fast food chain for liability, Scherr said. "This is a case where the state of New Hampshire was going after the entities that they were suing."

A jury in Merrimack County Superior Court found on April 9 that ExxonMobil was liable for cleaning up groundwater contaminated by MtBE, Methyl tertiary butyl ether. It was the largest verdict won by the state, former Attorney General Michael Delaney said.

ExxonMobil promised to appeal.

The American Tort Reform Foundation's "watch list" reference takes issue with New Hampshire Superior Court Justice Peter Fauver for trial decisions, the report says, are inconsistent with long-settled state law.

The American Tort Reform Foundation goes on to accuse the attorney general and other state officials of trying to "fleece out-of-state corporations as a means to easier reelection." The attorney general in New Hampshire is nominated by the governor and confirmed by the New Hampshire Executive Council.

The state Department of Environmental Services told the Union Leader last spring that an estimated 600 wells had known MtBE contamination and that as many as 5,500 wells could be contaminated.

Earlier this December, the New Hampshire Executive Council approved using $22.3 million of $81.6 million in settlement funding to establish and implement an MtBE assessment and cleanup plan. The state Attorney General's Office sued gas manufacturers and marketers in 2003 for damages related to contamination, and the state settled with all except one of the defendants. The $81.6 million is separate from the ExxonMobil lawsuit and verdict.

ExxonMobil, based in Irving, Texas, trades on the NYSE as "XOM."

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