PENNSYLVANIA RECORD

WASHINGTON

– Philadelphia's civil courts system has been named the nation's worst by the American Tort Reform Foundation for a second consecutive year.

The city, home to the Complex Litigation Center, hosts a disproportionate amount of the state's lawsuit and is seen as a haven for plaintiffs attorneys, says the annual "Judicial Hellholes" report. Philadelphia tops a list of eight jurisdictions deemed hellholes by the ATRF, up from six last year.
The No. 2 hellhole is California, followed by West Virginia, South Florida, the counties of Madison and St. Clair in Illinois, New York City and Albany, N.Y, Clark County, Nev., and McLean County, Ill.
"Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits," American Tort Reform Association president Tiger Joyce said.
"The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research."
Philadelphia's problems include plaintiff-friendly juries, the CLC's quick resolution process for mass tort claims and judges who encourage lawsuits, the ATRF feels. It blames Sandra Mazer Moss, the founder of the CLC who reclaimed her spot as coordinating judge of the mass tort program in 2009, and Common Pleas President Judge Pamela Pryor Dembe for wanting to make the city attractive to plaintiffs attorneys.
"Judge Dembe has expressed a desire to make the CLC even more attractive to attorneys, so we're taking away business from other courts,'" the report says. In an interview with Legal Newsline in November, Jim Copland of the Manhattan Institute called the CLC a "profit center."
The report says the CLC's approach seems to be working, as the docket has grown from 2,498 cases in 2007 to 5,244 in 2010. The CLC puts most cases on a two-year trial schedule, and ATRF worries that it is placing efficiency over fairness.
Critics of the system received good news this month, when the court announced it would be suspending the use of reverse bifurcation, a process that splits a trial into two parts. The first determines damages if the defendant is found liable, and the second determines if the defendant is liable. The steps are normally reversed in bifurcated trials.
"It is something that we are trying to do and we are going to be monitoring the results," said Stanley Thompson, the executive director of the CLC.
"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."
Another change of note that also applies to all of Pennsylvania was this year's passage of the Fair Share Act, which limited the doctrine of joint and several liability. That doctrine 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.
Now, a defendant that is less than 60 percent of the plaintiff's injuries only pays its share. The Pennsylvania General Assembly is also mulling a venue reform bill.
"Philadelphia is clearly the plaintiffs' choice," the report says. "It has nearly twice the litigation per capita of other Pennsylvania counties, according to court statistics and census data. While there are a handful of other counties that have a disproportionately high number of lawsuits relative to their populations, forum shopping in Pennsylvania appears to be primarily, if not exclusively, a Philadelphia phenomenon."
A study released in October by Joshua Wright, a law and economics professor at George Mason University School of Law in Virginia, says plaintiffs attorneys handle cases differently in Philadelphia.
"(T)he report indicates Philadelphia plaintiffs are less likely to settle their cases before trial than are non-Philadelphia plaintiffs, and they are disproportionately likely to prefer jury trials," ATRF's report says. "These findings are consistent with a conclusion that Philadelphia courts demonstrate a marked and meaningful preference for plaintiffs."
The rest of the list features jurisdictions that have long been on ATRA's radar.
Last year, ATRF put a pair of California counties at second place on its list.
This year, it has expanded to the entire state, noting a survey of corporate chief executives that placed the state as the worst in which to do business.
The report says lawyers who have combined disability access standards in the Americans with Disabilities Act with a state law have created thousands of lawsuits for minute technical violations, such as faded paint on a parking space. Small businesses are being destroyed, the report says.
"Unlike legislatures in most other states, California's General Assembly rarely acts to limit lawsuit abuse," the report says. "Though voters have occasionally taken matters into their own hands, directly passing reform referenda at the ballot box, the effectiveness of such reforms is sometimes eroded by periodic waves of liability-expansion that emanate from the California Supreme Court."
Though ATRF actually placed two happenings from the Mountain State in its "Points of Light" portion, West Virginia again made the list of hellholes – just as it has every year since 2002. It cited a lack of an intermediate appellate court and the actions of state Attorney General Darrell McGraw.
West Virginia also allows claims for medical monitoring, which establishes a health care program for plaintiffs who have not yet been caused harm by a defendant's alleged actions. Also, a $91.5 million verdict against a nursing home in October did not help the state's cause. After an 87-year-old woman died, a jury awarded $80 million in punitive damages.
"(I)t is important to recognize that such an astronomically high award does not solely affect that losing defendant company," the report says. "The danger in awarding sums approaching $100 million is that it will result in higher insurance rates for nursing homes across the state, which in turn will make long-term care less affordable for all West Virginians, driving some facilities to relocate to other states and others simply to shut down altogether."
In South Florida, which was No. 1 in 2009, ATRF says lawsuits are to blame for high auto insurance rates and that courts are still jammed with tobacco cases. Years ago, the Florida Supreme Court decertified a class of smokers but allowed them to file their cases individually.
Neighboring counties of Madison and St. Clair in southern Illinois are noted for their asbestos dockets. Madison County's is the largest in America, though only approximately 1 of every 10 cases is filed by a plaintiff who lives or works there, the report says.
It adds that St. Clair County's asbestos docket is growing and it hosts "significant" pharmaceutical litigation filed by out-of-state plaintiffs.
New York City has paid out $561 million for tort lawsuits in the 2011 fiscal year, and NYC Corporation Counsel Michael Cardozo says tort reform could save the city $100 million a year.
"But as regular readers of this report know, enactment of reasonable tort reforms in Albany is about as likely as a Bronx slushball's survival in a hellhole – especially considering that past bar association president Stephen Younger suggested... that his members would only back 'tort reform when it is supported by data,'" the report says.
He made the comments after NYC Mayor Michael Bloomberg asked the bar to support reasonable measures in January.
The spot of Nevada's Clark County's was "cemented" during a week in October, the report says. The week included a $162 million punitive damages award and a $104 million award that featured $90 million in punitives.
McLean County of Illinois jumped from the Watch List because of one type of case – "a McLean County phenomenon in which lawyers do not present evidence that their clients worked for any of the employers named in the lawsuit, or that their clients were exposed to asbestos from any of the named defendants' products."
The report says each case is allowed to go to trial, though any case resulting in a plaintiffs verdict is ultimately reversed.
Jurisdictions on the Watch List are: the U.S. District Court for the Eastern District of Texas; Cook County, Ill.; Southern New Jersey; Atlantic County, N.J.; Franklin County, Ala.; Smith County, Miss.; and Louisiana.
A dishonorable mention went to a Mississippi Supreme Court decision against Honeywell over an allegedly faulty seatbelt buckle that it did not manufacture. The court said the plaintiff could sue Honeywell because it had merged with the company that designed the seatbelt.
Another went to the Arkansas Supreme Court's recent decision to strike a limit on punitive damages and a third went to Missouri appellate courts that let stand a class action settlement that provided $20 to class members and $21 million to attorneys.