ATRA: Pass Pa. forum-shopping reform

By John O'Brien | Oct 24, 2011

HARRISBURG, Pa. (Legal Newsline) - The American Tort Reform Association is throwing its support behind a Pennsylvania bill that it says will address forum-shopping in personal injury lawsuits.

Mark Behrens - an attorney with the Washington, D.C., office of Shook, Hardy & Bacon - testified on behalf of ATRA Monday before the House Judiciary Committee. House Bill 1552 was introduced by Rep. Bryan Cutler, a Republican from Lancaster County, and referred to the committee in May.

The measure, along with liability reform passed earlier this year, would specifically help the business climate in Philadelphia, which was named the No. 1 Judicial Hellhole by ATRA in its yearly report.

"Plaintiffs lawyers are drawn to Philadelphia courts because they perceive that their clients will receive favorable treatment in the way the laws are administered," Behrens' testimony says.

"They believe they can get a better deal there than they can get at home in front of their local judge and their local jury. This is not to fault the plaintiffs lawyers. They are trying to game the system to their clients' advantage, and that is what they are paid to do.

"But that advantage comes at the cost of a corresponding disadvantage to defendants, and that is not fair. The playing field should be level."

Current venue law in the states allows the plaintiff to file a lawsuit in a county in which the defendant may be served, the cause of action arose or the transaction or occurrence out of which the cause of action took place.

Asbestos suits, for example, can be filed in Philadelphia courts if one of the defendants has a place of business there, allowing "significant discretion to plaintiffs lawyers as to where to file their cases," Behrens says.

The bill says any personal injury action must be filed in the county in which the cause of action arose, notwithstanding any other law.

In June, the Legislature passed the Fair Share Act, ending the state's joint and several liability doctrine, which requires a defendant to pay the share of a verdict that a co-defendant can't afford, no matter what percentage of liability is assessed to both.

It is up to the paying defendant to seek repayment from the non-paying one. If the non-paying one has no assets, the paying defendant gets nothing after footing the bill.

The measure came seven months after ATRA named Philadelphia the top Judicial Hellhole after not including it anywhere in its 2009 report. It blamed public statements made by judges that it said made the jurisdiction more attractive to plaintiffs attorneys.

Behrens says Philadelphia hosts a disproportionate share of the litigation in the state, noting that statistics show Philadelphia has nearly twice the litigation per capita of other counties in the state.

"Furthermore, Philadelphia court plaintiffs act differently (than) those in other areas of Pennsylvania," he says. "According to a recent empirical study by George Mason Law School Professor Joshua Wright, Philadelphia plaintiffs are less likely to settle than other Pennsylvania plaintiffs and are disproportionately likely to prefer jury trials.

"These findings are consistent with a conclusion that plaintiffs lawyers expect more favorable outcomes at trial in Philadelphia than in other areas of the Commonwealth."

Philadelphia is also home to the Complex Litigation Center, which Behrens says "places expediency over fairness" when it sets multiple cases for trial against a single defendant in a given month.

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