Jim Boyle Dec. 16, 2014, 7:26am


With the third consecutive year of keeping the Philadelphia court system off of the

American Tort Reform Foundation's annual list of the top 10 Judicial Hellholes, it's safe to say that outgoing Administrative Judge John W. Herron left the city's Court of Common Pleas in a better state than when he took the post in 2011.

The ATR Foundation, which is dedicated to tort and liability reform through education and legislative avenues, compiles a yearly list of the most unfair, plaintiff-friendly court systems in the country. According to the report, the list consists of "permissive courts willing to entertain sometimes preposterous consumer class actions, rogue judges willing to disregard the authority of the other two branches of government and steadily spreading disability-access lawsuits that cynically target small businesses that can’t afford to defend themselves in court."

It's a report that Philadelphia found itself at the very top for a few years until Herron stepped in with aggressive changes that curtailed out-of-state litigation and put the city in the ATR Foundation's Watchlist.

"In early 2012," the report says, "[Herron] acknowledged an explosion of mass tort cases in Philadelphia, withdrew the judiciary’s open invitation for out-of-state claims, and instituted significant procedural reforms."

The report is supportive of Herron's work, but several factors keep the foundation's eye closely on Philadelphia's progress. Mass tort filings fell 70 percent from 2,690 in 2013 to 813 in 2013, the report says, but the numbers are creeping back up. As of June 2014, more than 1,000 mass tort claims had been filed at the Court of Common Pleas, with Philadelphia remaining a popular destination for what the ATR Foundation calls "litigation tourists."

Asbestos claims filed by out-of-state plaintiffs have fallen significantly in Philadelphia from 47 percent in 2011 to 21 percent in 2014, the report says, but the slack has  been taken up by pharmaceutical claims. According to the ATR Foundation, four out of five pharmaceutical suits are filed by out-of-state plaintiffs. The complex litigation center created a mass tort program for pelvic mesh suits in February 2014, and filed claims reached more than 900 within just six months.

"Leaders of the local plaintiffs’ bar expect pelvic-mesh cases to become the largest mass tort program in Philadelphia in recent memory, surpassing the litigation surrounding the anti-inflammatory drug Vioxx," the report says.

The report is also concerned about the imminent change of leadership in the Philadelphia courthouse. Herron has reached the mandatory retirement age for judges this year, and the Pennsylvania Supreme Court named Judge Kevin Dougherty as his replacement, taking over the job on Dec. 1.

The Supreme Court was also taken to task by the ATR Foundation, earning dishonorable mention for its acceptance of the negligent design defect argument by a plaintiff in a pharmaceutical tort. The court ruled 4-2 in Lance v. Wyeth that the plaintiff could argue the marketing of a drug and failing to withdraw it from the market made the pharmaceutical liable for the product's design.

"[It's] a theory of liability not traditionally recognized in pharmaceutical cases because a drug’s design is approved by the FDA and cannot be changed without fundamentally altering the product," the report says. "The Lance decision contradicts years of established law in Pennsylvania. It will now allow Keystone State juries to second-guess the FDA about medicines’ benefits and risks."

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