Phila. courts temporarily scrap reverse bifurcation in mass tort drug cases

Mass tort drug cases originating from the Philadelphia Common Pleas Court’s Complex Litigation Center will be tried individually and without reverse bifurcation beginning in January, the court announced this week.

In a statement posted on the court’s website, Common Pleas Court Judge John W. Herron, the newly appointed administrative judge in charge of the trial division, said the decision, which was announced to members of the asbestos bar late last month, could eventually be reversed, with the return to the old practice of consolidating cases for trial, but for now the court will move forward with trying cases individually and straight through.

In the process known as reverse bifurcation, which is most often used in asbestos litigation, trials are split up into two phases. Damages are assessed during the first phase, and liability in the second.

Last month, Philadelphia Common Pleas Court Judge Sandra Mazer Moss, coordinating judge of the Complex Litigation Center, which handles and groups mass tort cases, announced that after nearly a quarter-century of trying asbestos cases through the process of reverse bifurcation, she was allowing some cases to proceed as “straight-through” trials in which it is uncontested that plaintiffs contracted malignant mesothelioma because of asbestos exposure.

In a story in Philadelphia’s Legal Intelligencer newspaper last month, Moss was quoted as saying that her decision to forgo reverse bifurcation in some instances was agreed to after holding discussions with both plaintiffs and defense attorneys.

“I think they thought I was just going to say, ‘We’re going to do reverse bifurcation and we’re just going to have to duke it out in the appellate courts,’” Moss said in an interview with the paper.

Moss decided that reverse bifurcation would be eliminated in cases in which the defendants were not contesting that a plaintiff’s lung cancer was caused by asbestos exposure, but were contesting that their specific product is what allegedly caused the injury, the paper reported.

On Thursday, Herron, the administrative judge, posted another announcement on the court’s website that stated that consolidation and reverse bifurcation of all mass tort actions will be temporarily suspended during the study period, allowing for written comments to be submitted to the court on or before Jan. 31, 2012.

Meanwhile, the announcement stated, mass tort cases will proceed to trial on an individual basis.

Once the study period is complete, which will most likely be around February, consolidation of cases and reverse bifurcation may be reinstated “if the Court is convinced adequate safeguards and protocols are in place to assure fair and just disposition of actions filed,” Herron’s statement read.

Meanwhile, Herron announced, consolidation and reverse bifurcation for all pharmaceutical cases will end permanently as of Jan. 1.