Phila. Common Pleas Court reintroduces punitive damage claims in mass tort cases

Suspension of reverse bifurcation in asbestos and other mass tort claims heard at

Philadelphia’s Common Pleas Court will continue, but punitive damage claims in pharmaceutical mass tort cases are now once again allowable.

These were some of the new civil procedural rules unveiled this week by Philadelphia Common Pleas Court Judge John W. Herron, the administrative judge overseeing the civil trial division of the city’s court system.

The announcement regarding the revised regulations in the mass tort program came in a June 18 order.

The new protocols come four months after the court adopted what it called “transitional working rules” to address concerns that the mass tort inventory at Philadelphia’s Common Pleas Court was experiencing “explosive” growth.

After the months-long comment period expired, the court revised the mass tort protocols as follows: it will now allow punitive damage claims in pharmaceutical cases to proceed, subject to decisions of mass tort coordinating judges Sandra Mazer Moss and Arnold New; it will incorporate the discovery rules written by the asbestos and pharmaceutical bars; it will relax the rules on pro hoc vice counsel by doubling the number of permissible trials; it will resume expedited listings for plaintiffs who have a medically verifiable prognosis of imminent death; and it will encourage the pharmaceutical bar to utilize voluntary mediation, which the court claims has proven successful in the asbestos program.

Herron’s order states that there were 444 filings between January and May, and that the total projected mass tort filings should come in at around 1,068 for 2012.

This is a 60 percent reduction from the 2,690 cases filed in 2011 and a return to pre-2009 filing levels, Herron wrote.

Furthermore, there has been what Herron calls a “substantial” reduction in the total number of filings from out-of-state plaintiffs.

Pharmaceutical cases have been reduced from 88 percent to 85 percent, while asbestos cases have dropped from 47 percent to 46 percent, the order states.

As for the return of punitives in such pharmaceutical mass tort cases, Herron wrote while the protocols suggest deferral of punitive damage claims, “the rule has not been applied to a single case as no case involving a punitive damage claim has proceeded to trial.”

Herron’s order also states that there has been “heightened” settlement activity, and that mediation activity in both asbestos and pharmaceutical cases has “increased notably.”

Discovery disputes have also greatly diminished as a result of adopting separate discovery rules written by the asbestos and pharmaceutical bars, according to Herron.

As for the return of punitive damage claims in mass tort cases, the announcement is receiving mixed feedback.

Some view it as a plus while others view the rule change as a step backward.

The advocacy group Taking Back Our Courts takes the position that the move is a “step towards a more just and fair judiciary for all.”

“The Philadelphia Court of Common Pleas’ has shown us again why it has been called one of the best courts in the country,” Keystone Progress Executive Director Michael Morrill said in a statement released by TBOC. “When the judicial administrators make decisions like these, it helps promote the health of our democracy and ourselves.”

Keystone Progress bills itself as Pennsylvania’s largest online progressive organization, while TBOC says it’s a civil justice project designated to “protect Philadelphia courts and promote fair access to justice for consumers.”

Those on the other side of the aisle, however, view the move to once again allow punitive damage claims in mass tort cases as something that will hurt defendants.

“The court’s decision is disappointing,” Mark A. Behrens, an attorney with the firm Shook, Hardy & Bacon, wrote in an emailed message to the Pennsylvania Record. “Business interests will now be watching closely to see if the court will promote fairness in punitive damages trials and to see if the court plans to erode other reforms it recently instituted. The court should continue its path toward progress and not begin to go back to past practices that made it American’s number one judicial hellhole for two consecutive years.”

Those comments were reflective of a similar sentiment earlier this year in response to Herron’s announcement that the mass tort program would soon be overhauled.

In a letter to Judges Herron and Mazer Moss back on Jan. 23, Behrens, writing on behalf of a number of organizations, including the Pennsylvania Business Council, the Pennsylvania Chamber of Business and Industry and the U.S. Chamber of Commerce, warned that the reintroduction of punitive damage claims, particularly in asbestos trials, would be a “marked step backward for the CLC [Complex Litigation Center], even as the Court wisely considers taking two steps forward.”

(The Pennsylvania Record is owned by The U.S. Chamber Institute for Legal Reform).

The two steps forward Behrens referred to were the elimination of reverse bifurcation in asbestos cases and the consolidation of asbestos trials.

The organizations that signed the Behrens letter were those whose members include asbestos defendants and their insurers, some of which Behrens wrote have been forced into bankruptcy under the weight of asbestos litigation, many during the past decade.

The reintroduction of punitives, Behrens wrote during the mass tort bar comment period earlier this year, would mean a return to financial ruin for many of these types of defendants.

“The financial viability of remaining solvent defendants continues to be threatened both by the enormity of the litigation and the challenging economy,” the Jan. 23 letter stated. “It would be particularly unwise now for the Court to reintroduce punitive damages to augment economic pressures on employers and raise the specter that future claimants may be left without timely or adequate recovery.”