Tort reform by fiat in Philly

By Alison Frankel
February 17, 2012

In a mere five pages issued late Wednesday, Administrative Judge John Herron of the Philadelphia Court of Common Pleas singlehandedly effected defense-friendly changes that it usually takes a state legislature to enact.

The judge, reacting to what he said were “concerns and criticisms of this court’s mass tort program,” found that filings by out-of-state plaintiffs in asbestos and pharmaceutical cases have become a serious problem. Since the mass tort court rolled out a welcome mat in 2009, Herron said, Philadelphia has been attracting filings from plaintiffs and lawyers with no connection to Pennsylvania; “an astonishing 47 percent” of the court’s asbestos filings in 2011, the judge said, were by out-of-state claimants.

Herron didn’t cite similar statistics for pharmaceutical products liability cases, but Bayer sure complained loudly about the out-of-state issue in an extraordinary filing at the Pennsylvania Supreme Court last November. Bayer’s lawyers at Eckert Seamans Cherin & Mellott called Philadelphia’s Court of Common Pleas “a mecca for lawsuits from across the country with little or no connection to Pennsylvania.” The petition asked the high court to overrule a decision that nine cases involving alleged injuries to out-of-state plaintiffs who took Bayer birth control drugs shouldn’t be dismissed on forum non conveniens grounds. The Supreme Court denied the petition last week, but Bayer’s cry for help led to Herron’s call for comments on the mass tort program last November.

After hearing from 32 commenters and reviewing the court’s docket, Herron concluded in no uncertain terms that the mass tort docket has become clogged. Asbestos suits, Herron said, were the most backed up, but he said cases involving hormone replacement therapy drugs, the antidepressant Paxil, the pain reliever Vioxx, and other medications were also taking too long to resolve.

The judge ordered 15 reforms. Many are directed specifically at Philadelphia’s asbestos cases, but others will have an impact across the mass torts docket. And overall, they seem to be designed to make Philadelphia considerably less attractive a destination for plaintiffs lawyers.

Most significantly, punitive damages in all mass tort cases “shall be deferred.” There’s no explanation of exactly what “deferred” means, but I can’t think of a definition that’s good for claimants. That’s not all, though. Mass tort cases can’t be consolidated without the consent of defendants. Discovery has to be conducted in Philadelphia, “unless otherwise agreed by defense counsel or upon showing of exigent circumstances.” And those out-of-state plaintiffs lawyers are only allowed to try two cases a year, limiting their leverage in settlement talks.

Herron’s order also said that the mass tort judge who has presided over the court (and made the 2009 comments that were perceived as an invitation to out-of-state plaintiffs) will take senior status at the end of 2012. Another judge will immediately join her on the mass torts bench and will take over the entire docket at the beginning of 2013.

If you need proof of the implications of Herron’s order, look no farther than the American Tort Reform Foundation, which named Philadelphia its No. 1 judicial hellhole for 2010 and 2011. ATR’s Judicial Hellholes website applauded the new Philly rules as “sweeping” changes “that should go a long way in mitigating the complex litigation center’s troublingly plaintiff-friendly reputation.” I called two Philadelphia plaintiffs lawyers and leading asbestos lawyer Perry Weitz of Weitz & Luxenberg for an alternative view of Herron’s new rules but didn’t hear back.

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