Reverse bifurcation suspended in Philly mass torts

By Michael P. Tremoglie and Jon Campisi | Dec 9, 2011

Mass tort cases originating from the Philadelphia Court of Common Pleas 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, Court of Common Pleas 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."

The CLC, having opened in 1992, was the first courthouse in the United States designed exclusively for mass tort cases.

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

Last month, Philadelphia Common Pleas Court Judge Sandra Mazer Moss, coordinating judge of the Complex Litigation Center, 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.

Stanley Thompson, the director of the CLC, was asked what the benefits would be and why the court made the change.

"It is something that we are trying to do and we are going to be monitoring the results," Thompson said. "This procedure is only for uncontested trials. We are doing it because we think it will lead to more efficiency to try cases this way.

"This is something the litigants asked for and Judge Moss agreed to. A lot of times the cases would resolve after the damages were seen.

"But since it will be uncontested as to the cause, it will be a 'straight through' trial. This way cases will move faster through the court."

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.

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.

Asbestos attorney Mark Lockett of Bonner, Kiernan, Trebach and Corciata commented last month that the plaintiffs bar would probably like it back to the "old way" because settlement numbers are "a little lower" without reverse bifurcation.

He said there has been "an increased presence of plaintiff's firms for the past two years who are from out-of-state."

Reverse bifurcation has always been controversial.

Associate professor Drury Stevenson of South Texas College of Law favors the process.

In 2006, Stevenson wrote in the Taft Law School Review:

"Modern trials involve skyscraper-sized verdicts; the parties joust for winnings that can reach hundreds of millions of dollars. The traditional, unitary trial sequence has turned modern litigation into an elaborate poker game, where the stakes grow larger as the parties try to guess the strength of their rival's hand.

"Each side has an incentive to bluff, to send mixed signals, and to stay in the game too long; all of which drive the stakes higher and higher. The random outcomes of high stakes poker are part of the game's appeal, but also can turn it into a source of social blight if too many people become trapped in a game with devastating outcomes for the losers.

"The same is true for litigation; as the stakes can escalate throughout the process, the outcome drifts further from the merits of the claims, and the results of trials become a cause of widespread social concern, instead of a source of resolution and closure.

"Reverse bifurcation rectifies this problem. Allowing the parties to determine the stakes of the case first gives them an incentive to settle, and better information with which to negotiate a reasonable settlement amount."

Others condemn reverse bifurcation.

Professor Michelle J. White is an economist at the University of California, San Diego, as well as a research associate of the National Bureau of Economic Research.

She published a paper in the Journal of Legal Studies in 2006 titled, "Asbestos Litigation: Procedural Innovations and Forum Shopping," examining how forum shopping and procedural innovations affect outcomes of asbestos trials.

The National Science Foundation Economics Program provided research support for the study.

White states that because "plaintiffs' lawyers choose where to file lawsuits, they have an incentive to file in states that have particularly favorable legal rules and in jurisdictions within these states that have particularly favorable judges and juries."

Her research indicated that when a procedural innovation such as reverse bifurcation is used, "plaintiffs' expected return from trial increases by $650,000 and $1.2 million... in a reverse-bifurcated trial, the jury would decide damages in phase 1 without hearing the evidence concerning liability and, in the example, the damage award would therefore be $500,000.

"Although juries might compensate for higher damage awards by finding defendants not liable more frequently in phase 2, this will not be observed if the parties settle after phase 1. This suggests that reverse-bifurcated trials will tend to have higher damage awards than non-bifurcated trials."

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