PENNSYLVANIA RECORD

The business community would like Philadelphia's courts to make permanent the suspension of mass tort cases that are tried using a process that determines damages first and liability second.

In December, the Philadelphia Court of Common Pleas Complex Litigation Center announced it would be in January suspending its usage or reverse bifurcation, which had gained criticism in recent years.

The American Tort Reform Foundation mentioned it when naming Philadelphia its No. 1 Judicial Hellhole in its annual report in 2010.

The business community sent its comments to Judge Sandra Mazer Moss, the coordinating judge of the CLC, on Monday. It's also advocating the elimination of consolidated trials.

"Consolidation of unlike claims and reverse bifurcation prejudices asbestos defendants," wrote Mark Behrens of Shook, Hardy and Bacon.

"Deciding multiple cases with different exposures and injuries in a single trial places efficiency over fairness. Reverse bifurcation taints the jury with sympathy occasioned by knowledge of the severity of the plaintiff's injuries before it considers whether the defendant is responsible for those harms.

"These procedures are among the reasons why plaintiffs' lawyers from across the United States choose to file their asbestos cases in Philadelphia."

The comments were made on behalf of several business groups, including the Pennsylvania Chamber of Business and Industry, the American Insurance Association and the U.S. Chamber of Commerce.

The Pennsylvania Record is owned by the Institute for Legal Reform, which is an affiliate of the U.S. Chamber.

Bifurcated trials usually try liability first and damages second. Moss said it would be suspended in cases in which the defendants were not contesting the plaintiff's lung cancer was caused by asbestos exposure but were contesting that their product did not cause the injury.

"It is something that we are trying to do and we are going to be monitoring the results," CLC director Stanley Thompson said in December. "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."

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