Working rule changes to the mass tort program at the Philadelphia Court of Common
Pleas that were instituted during the past year to address what was viewed as explosive growth with regard to asbestos and pharmaceutical cases has resulted in a drastic drop of mass tort filings through December 2012, court leaders recently announced.
From January through December of last year, there was a 70 percent reduction – 816 such cases were filed in total – in mass tort filings from the 2,690 that the court saw in 2011, representing a return to pre-2009 filing levels.
These figures and others were provided by John W. Herron, the administrative judge of the court’s trial division, in a notice to the mass tort bar.
The amended protocols and year-end report, which was filed on Feb. 7, also noted that there has been a slight reduction in the total number of out-of-state filings, with pharmaceutical cases having been reduced from 88 percent to 86 percent, and asbestos cases dropping from 47 percent to 44 percent.
Herron wrote that there has also been heightened settlement activity, with mediation activity in both asbestos and pharmaceutical cases increasing “notably.”
Discovery disputes have greatly diminished as a result of adopting separate discovery rules written by the asbestos bar and the pharmaceutical bar, and since the beginning of last year, two additional judges have been assigned to the mass tort program in an effort to reduce the swelling inventory, Herron’s report stated.
Furthermore, the overall inventory of mass tort cases has been reduced by 14 percent to 5,302 cases as of Dec. 31, 2012, according to the report.
During 2012, only six mass tort cases were tried to jury verdicts, Herron stated, with two resulting in verdicts for the plaintiffs and four ending in defense verdicts.
The year-end report was accompanied by an order in which Herron republished the protocols that were modified during the past year.
These changes include the following:
There will be no reverse bifurcation of any mass tort case, including asbestos cases, unless agreed upon by all counsel involved; consolidation of mass tort cases shall not occur absent an agreement of all parties, except in the asbestos program in accordance with the protocols; all punitive damage claims in asbestos cases shall be deferred, although punitive damage claims may be litigated in pharmaceutical cases provided that the coordinating judge rules that there are sufficient requisite proofs to support the claim going to trial; and pro hac vice counsel shall be limited to no more than four trials per year.
The order went on to spell out the discovery rules that had been proposed to the court by the asbestos and pharmaceutical bars and which have now been adopted by the mass tort program.
They are as follows:
Unless otherwise agreed upon by opposing counsel or upon a showing of exigent circumstances, all discovery shall take place in Philadelphia, although depositions can be taken elsewhere as long as video conferencing or telephone conferencing is provided; a notice of deposition shall be served on all parties at least seven days prior to the scheduled deposition date, unless court approval is given for a shorter time period; and all plaintiffs shall be made available for deposition in Philadelphia unless otherwise agreed by all parties or upon motion and for good cause shown.
The first two of the above rules were proposed by the asbestos bar while the third was suggested by the pharmaceutical bar.
The order also states that asbestos cases shall be grouped in groups of a minimum of eight and a maximum of 10.
Any grouping of cases less than eight to 10 in number shall not receive a trial date until the proper group is formed, the order states.
A maximum of three of the eight-to10 cases may be tried, the order states, with the other five to seven cases either resolved through settlement or returned to the coordinating judge for regrouping and relisting for trial.
The order says that once grouped and assigned a trial date, attorneys are urged to seek mediation from a special panel of former judges, whose names were provided within the order.
Any plaintiff firm’s failure to proceed in good faith in mediation may constitute just cause to remove that group of cases from the trial list and any defendant’s failure to do the same may result in an increase of the maximum three cases consolidated for trial.
All parties are expected to share the cost of mediation.
There are six former judges named on the list who will participate in the special mediation of mass tort cases, two of who are former state Supreme Court justices, Jane Cutler Greenspan and Russell Nigro.
While the changes to the mass tort program at Philadelphia’s Common Pleas Court were said to have been inspired by complaints from defense firms who claim plaintiffs’ lawyers file in Philadelphia because they are more likely to get a favorable verdict and large cash award, court leaders have stated that the revisions were done more to address a problematic backlog of mass tort cases.
Still, the changes are sure to please groups that represent business and industry, such as the American Tort Reform Association, which for two years in a row had the Philadelphia civil court system at the top of its “judicial hellholes” ranking.
Following the announced changes at the Philadelphia courts last year, the ATRA dropped Philly from its list, hailing the new mass tort protocols as a step in the right direction.
The Philadelphia Inquirer late last week quoted Judge Herron as saying that the recent drop in mass tort filings is, from the court’s perspective, “an excellent reversal of the trend.
“There were uncontrollable filings and we were very pleased to see that we could bring the flow down,” Herron told the newspaper.
Herron was further quoted as saying that Philadelphia juries and judges should primarily be adjudicating the cases of Pennsylvania plaintiffs and not plaintiffs from other states.
“We want our jurors hearing Pennsylvania cases, and not deciding the case of a Utah plaintiff,” Herron told the Inquirer. “And that is what has been happening.”