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Ken Paxton Wanted to Crack Down on Forum Shopping. Now Lawyers Say He’s Improperly Seeking Out Favorable Courts.

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Dominic Bodden for ProPublica and The Texas Tribune

In October, Texas Attorney General Ken Paxton sued pharmaceutical companies tied to Tylenol in state court, repeating claims made a month earlier by Health and Human Services Secretary Robert F. Kennedy Jr. that the pain relief drug was linked to autism and ADHD in children.

Paxton, a close ally of the Trump administration who had already announced a U.S. Senate bid, accused drugmakers of marketing Tylenol to pregnant mothers without disclosing its dangers. “The reckoning has arrived,” the state’s attorneys wrote in the lawsuit against pharmaceutical companies Johnson & Johnson, Kenvue Brands and Kenvue Inc.

“By holding Big Pharma accountable for poisoning our people, we will help Make America Healthy Again,” Paxton proclaimed in a news release that echoed Kennedy’s slogan.

Paxton hired the Chicago law firm Keller Postman to argue the case in state court. The firm had served as lead counsel in a similar case about Tylenol’s safety that was dismissed a year earlier by a New York federal judge who found the plaintiffs’ expert witnesses unreliable.

But the court the attorneys chose to bring the suit in wasn’t in Austin or any of the state’s large counties that have extensive experience and multiple judges handling large, complex litigation. It was in Panola County, a community of 23,000 residents on the Louisiana border that Trump carried by 67 points two years ago and whose sole state district court judge is a Republican.

At a hearing that month in the three-story brick courthouse in the county seat of Carthage, Kim Bueno, the lawyer representing the drugmakers, accused Paxton’s office of pushing a baseless lawsuit through forum shopping — seeking out judges and juries that plaintiffs believe will be most favorable to them, rather than filing suit in the courts that most commonly handle similar cases.

“These claims have been rejected over and over and over again in courts of law by the same plaintiff’s counsel,” said Bueno, who declined an interview request. “And now they’re trying, once again, to suggest that Tylenol is harmful for women when pregnant. And it’s been soundly rejected.”

The case was not the first that Paxton’s office had filed in a county with little connection to the allegations of wrongdoing made by his office. ProPublica and The Texas Tribune have identified at least 30 cases filed by the attorney general over the past nine years that have a tenuous connection to the counties in which they were filed.

The filings mark a striking departure from Paxton’s previous opposition to the practice. In a 2017 legal brief that Paxton wrote on behalf of 17 states, he urged the U.S. Supreme Court to crack down on forum shopping in federal courts. The practice, he wrote, “has the pernicious effect of reducing confidence in the fairness and neutrality of our Nation’s justice system.”

Paxton’s approach also subverts what the Legislature intended when it passed a law in the 1990s that required plaintiffs to file lawsuits in counties where a “substantial” part of the alleged violation took place, according to three legal experts. That was done at the behest of conservatives who felt trial lawyers were flocking to venues favorable to them to win big damage verdicts against businesses.

“It looks like the attorney general’s office is interested in engaging in litigation games that it would otherwise decry if the shoe were on the other foot,” said Michael Ariens, a professor at St. Mary’s University School of Law in San Antonio, who has studied laws regulating where lawsuits can be filed.

Neither of Paxton’s Republican predecessors, Gov. Greg Abbott and U.S. Sen. John Cornyn, appears to have employed this strategy. ProPublica and the Tribune reviewed hundreds of cases filed outside of the state’s five large urban counties during their tenures. Each had a clear connection to the venue Abbott or Cornyn chose.

Neither Abbott nor Cornyn, who Paxton is trying to unseat, responded to requests for comment. Trump on Tuesday endorsed Paxton in the race.

Texas’ major consumer protection law gives the attorney general some flexibility with those cases despite the state’s broader restriction on forum shopping. The office does not have to prove that a substantial part of the events in a consumer protection case happened in the place where it files suit but can instead file in counties where a defendant has done business.

But Paxton has stretched the boundaries of that law, too, according to legal experts and to former staffers of the attorney general’s office who argued against him in court. Last year, for example, the attorney general filed a lawsuit against the gaming platform Roblox in King County, a ranching community of about 200 people east of........

© ProPublica