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Philadelphia, Pennsylvania

Fairly or not, “Philadelphia lawyers” have been subjected to plenty of criticism through the decades. Now some Philadelphia judges seem determined to get in on the act.

Various defendants express growing concern with Pennsylvania’s Complex Litigation Center (CLC), located in the Philadelphia Court of Common Pleas. The CLC handles mass tort litigation filed in state courts, such as thousands of pharmaceutical and asbestos cases. Various attorneys have shared with the American Tort Reform Association their criticisms of the CLC’s administration as being decidedly tilted against many lawsuit defendants. Scheduling unfairness, encouragement of “litigation tourism,” consolidation of dissimilar claims, and failure to use court reporters are among the disturbing examples.

The trouble seems to have arisen after Judge Sandra Mazer Moss, the founder and first Supervising Judge of the CLC, replaced Judge Allan Tereshko as coordinating judge of the mass tort program in 2009.  Judge Tereshko had been the CLC’s coordinating judge since 2001. Judge Moss has declared that “it is a new day” in the Philadelphia CLC, while a “public campaign to lay out the welcome matt for increased mass torts filings” has been initiated by Common Pleas President Judge Pamela Pryor Dembe.

It appears that Judge Dembe is attempting to keep the court busy after a dramatic drop in the use of the mass tort program when more than 12,000 Fen-Phen cases concluded in 2008. In a March 2009 interview with the Legal Intelligencer, Judge Dembe reportedly said that the court’s budgetary woes could be eased by making the CLC even more attractive to attorneys, “so we’re taking away business from other courts.”

In addition to generating substantial filing fees for the court, out-of-state lawyers are an economic stimulus for Philadelphia, according to Judge Dembe. These litigation tourists eat at local restaurants, stay in city hotels, and hire local counsel. So it should come as no surprise that Pennsylvania’s big time plaintiffs’ lawyers, such as Tom Kline, are ecstatic about Judge Dembe’s efforts. Out-of-state lawyers are also taking notice, and at least one believes Judge Moss’s plaintiff-friendly reputation will make it “more likely” that out-of-state lawyers will file their cases in her court. According to ATRA members and others surveyed, this strategy is working.

The mass torts program places expediency over fairness. In order to resolve cases in a predetermined amount of time, multiple cases are set for trial in a given month. These cases may involve several plaintiffs, represented by multiple law firms, all arrayed against the same defendant company. The defense attorneys’ challenge to prepare for multiple and overlapping trials, most of which typically include several weeks of testimony, places extraordinary pressure on them and their clients to settle cases, regardless of the respective merits.

In addition, the court has more recently engaged in a practice of combining the cases of multiple plaintiffs for a single trial. In such cases, the plaintiffs may be from different states and have different types of injuries, while the admissible evidence, applicable state law, and available defenses for each may vary. Many cases with no connection to Philadelphia proceed to trial. The system is overwhelmed and decisions on whether to dismiss weak cases are often not made until the eve of trial.

Philadelphia judges also use a procedure known as “reverse bifurcation” in asbestos trials wherein juries decide how much money plaintiffs should receive before considering if defendants are responsible for the alleged injuries. After hearing hours of pain-and-suffering and medical causation testimony based on matters defendants do not dispute, jurors understandably become sympathetic to plaintiffs. This places defendants in a difficult situation, as the jury becomes focused on compensating plaintiffs’ injuries even before the defendants have an opportunity to show they were not responsible.

As if that was not astoundingly unfair enough, emboldened plaintiffs’ lawyers have now asked the CLC to reverse its longstanding practice of deferring punitive damage claims in asbestos lawsuits. This sound practice, which is followed in federal courts and several other jurisdictions, prioritizes compensation for those who are injured above jackpot payouts for a few, recognizing that punitive damages serve no purpose when the conduct occurred decades ago.

There are other reasons that defense lawyers fear cases in Pennsylvania.  Verdicts over $1 million are up. The Pennsylvania courts report that the number of jury verdicts and judicial rulings of more than $1 million tripled in the Philadelphia Court of Common Pleas in the first half of 2010 compared to the same period in 2009. Among these was the $2.23 million award that a Northeast Philadelphia bar, the Empty Glass Café, was ordered to pay the family of a man shot while trying to break up a fight outside the bar, according to a local CBS News report. The small business owner declared bankruptcy, ceased operations, and instructed his lawyer not to defend against the suit, which claimed the bar should have installed metal detectors or had security to prevent patrons from bringing guns inside.

On lengthy trials, it is the experience of some ATRA members that Philadelphia judges excuse any summoned juror who claims hardship due to work responsibilities, leaving a plainly unrepresentative jury pool.

Beyond Philadelphia, the Pennsylvania Supreme Court has permitted the state government to hire private-sector contingency fee lawyers with its August 2010 ruling that a targeted business could not challenge the controversial practice. Such hiring practices encourage enforcement of state laws based on the profit interests of politically connected lawyers, not the public interest.

Another decision that month by an appellate panel of the Pennsylvania Superior Court authorized a new way to sue drug manufacturers. Nearly every state recognizes that while drug manufacturers may be liable for problems in manufacturing their products or not adequately warning of potential risks, they are not strictly liable for the design of the drug. That’s because the design of any drug must first be approved by the federal government, and it cannot be altered without fundamentally changing the product itself.  Nevertheless, the Philadelphia court permitted an open-ended “negligent design” claim to proceed, effectively asking inexpert jurors the reasonableness of the manufacturer’s conduct in the complex design of the drug.

This is not the first instance of Pennsylvania tort laws falling out of the mainstream. It also is one of only a handful of states to retain a “pure” joint and several liability law, which provides that any defendant that is found to be even slightly at fault for a plaintiff ’s injury — even 1% at fault — may be required to pay the entire amount of the plaintiff ’s damages. In many states, a defendant is only responsible for its proportion of the fault or is held not responsible. In others, a defendant may be responsible for paying the full amount, but only if it bares at least half the blame. The Pennsylvania courts struck down as unconstitutional an attempt at reform in 2006.

Moreover, while many other states have placed outer limits on the size of highly subjective pain and suffering awards, Pennsylvania has not. And though federal courts and many state courts charge their judges with serving as gatekeepers to ensure the reliability of expert testimony, Pennsylvania retains an older, less rigorous standard.

But in fairness to Philadelphia courts, this report must cite one area in which there has been improvement: in medical malpractice cases that had contributed in the past to the city’s growing Judicial Hellholes reputation. The number of malpractice filings in Philadelphia fell from a high of 1,365 in 2002, the year before the General Assembly enacted reforms, to just 491 in 2009. Those reforms eliminated the ability of plaintiffs’ lawyers to shop for favorable courts by requiring cases to be heard where the alleged medical errors occurred, and by requiring a certificate of merit from a third-party physician attesting to the validity of medical liability claims. Both measures help weed out weak claims.

On the other hand, according to a recent analysis of data collected from 1,600 hospitals between 1997 and 2007, Pennsylvania has the highest claim frequency rate in the country, nearly twice the average of most states. The state’s medical community continues to push for a limit on subjective pain and suffering awards as a means to stop insurance rates, which remain twice their 2002 level, from further burdening Pennsylvania doctors.