HARRISBURG – Trial lawyers given the power by the state Supreme Court to overturn state law are connected to law firms that would benefit from a proposed change - and whose attorneys poured more than a half-million dollars into getting a Democrat majority on the court.
A Supreme Court rulemaking committee is proposing a new rule that will allow medical malpractice lawyers to file their lawsuits in the counties of their choosing, undoing the results of a 2002 law passed in response to a so-called health care crisis in Pennsylvania.
But a look at the makeup of the committee shows five lawyers, including its chair, who work at firms that file medical malpractice cases in Pennsylvania.
And research shows that lawyers at these firms gave heavily to a PAC that spent millions of dollars in the record-setting 2015 Supreme Court election in support of the three Democrat victors who gave the court a 5-2 majority.
Three of these lawyers have been appointed since the Democrat majority took over with the elections of Kevin Dougherty, Christine Donohue and David Wecht. Since 2016, half of the committee’s openings have been filled with plaintiffs lawyers.
Former committee chair Peter Hoffman says members are picked by individual justices, not by a majority of the court. Basically, there are seats that each justice is in charge of filling without a need for approval from others.
“I know who appointed me, and I’m honored to have served on that committee, of the three years as the chairman and of what the committee did while I was involved,” says Hoffman, an attorney at Eckert Seamans in Philadelphia who was picked for med-mal committees by both the governor’s office and state Senate.
“I know that when I was chairman, and the committee went along with it, that we weren’t going to have our agendas come to bear. People come with different perspectives, but we worked together in a professional and collegial way.”
It’s unclear what prompted the proposed rule. Statistics show med-mal filings are down, particularly in Philadelphia. There, only 406 med-mal cases were filed in 2017, which is more than 800 less than the three-year average preceding the MCARE Act.
Four of the lawyers who work at firms with med-mal practices did not respond to questions asking whether they recused themselves from the rulemaking process.
Undoing the venue measure created as a result of the MCARE Act would let med-mal lawyers select from counties allowed by regular jurisdiction rules rather than be required to file suit in the county in which the alleged conduct occurred.
Critics say this will result in lawyers flocking to Philadelphia, a court with a reputation for high-dollar verdicts, with lawsuits that should have been filed in other counties. Thousands of out-of-state plaintiffs come to the court for lawsuits over pharmaceuticals like Risperdal and Xarelto.
Insurers would be at a greater risk of having to cover these lawsuits and, in turn, would charge higher malpractice rates to doctors, the health care industry says.
Doing that harms the incentive to become a doctor in Pennsylvania, leading to fewer health care options for patients, it says.
But proponents, including the trial bar, say med-mal lawsuits shouldn’t be subject to different venue rules than other cases.
Since the current Democrat majority took the bench in 2016, the 14-member Civil Procedural Rules Committee has experienced turnover in six of its spots.
The court has filled those spots with three plaintiffs lawyers, two judges and Stanley Stein, whose Pittsburgh firm focuses on commercial litigation. The six spots were vacated by one judge, one plaintiffs lawyer, two defense attorneys and two lawyers who work a blend of personal injury plaintiffs and defendants.
All three plaintiffs lawyers appointed during the Democrat majority work at firms that file med-mal cases. One of the lawyers, David Caputo, even boasts in his bio of a large med-mal verdict he obtained in Delaware County.
Caputo started on the committee in 2016 after his colleague at Kline & Specter, Andrew Youman, left it. The next year, the two founded Philadelphia’s Youman & Caputo, which also maintains a medical malpractice focus. Caputo had worked for many years at Kline & Specter, the largest plaintiffs firm in the state.
His bio celebrates a $21.8 million med-mal verdict in Delaware County in 2015 on behalf of a man who lost his vision after back surgery. It also highlights a $5.6 million recovery and a $3.7 million recovery in two med-mal/product liability cases.
Court records from one of his cases in Camden, NJ, federal court show how lucrative the field can be. In that case, he had to petition the court, pursuant to New Jersey law, for approval of attorneys fees in a settlement worth at least $2 million.
Working on a contingency fee, Caputo charged his client one-third of the first $500,000; 30% of the next $500,000; 25% of the next $500,000; and 20% of the next $500,000.
This means Caputo made $540,000 on the first $2 million on that case. It is unknown how much higher the settlement went. He sought 33% of the funds over $2 million
Caputo, himself, isn’t highly active in judicial elections, with his largest judicial donation being $1,000 to Democrat Max Baer in 2003’s Supreme Court election.
But in 2015, when he worked at Kline & Specter, his employers opened their checkbooks for the Committee for a Better Tomorrow, the political action committee of Philadelphia Trial Lawyers’ Association.
The Committee for a Better Tomorrow supported the Democrats in the 2015 election with close to $3 million. Kline & Specter's name partners, Tom Kline and Shanin Specter, gave $176,250 to the PAC that year.
Kwass is the chair of the committee and his presence predates the Democrat majority. Though he focuses on construction accidents, he once represented companies facing medical malpractice lawsuits.
“I’m defending medical malpractice and personal injury cases and thinking the whole time that if I were representing the plaintiff and had the funding, I could destroy this defendant,” his bio says.
Kwass now works at Philadelphia’s Saltz Mongeluzzi, which calls itself “one of the leading Philadelphia-based medical malpractice law firms.”
In 2015, Kwass gave nearly $11,000 to the Committee for a Better Tomorrow, while his co-workers at Saltz Mongeluzzi gave another $182,445.25. Name partner Bob Mongeluzzi gave more than $90,000 of that.
Senoff, named to the Supreme Court committee in 2016, also works at one of Philadelphia’s main personal injury firms – Anapol Weiss. The firm has filed medical malpractice cases for more than 40 years.
“Medical malpractice is one of the most serious professional infractions possible,” the firm’s site says.
Though Senoff gave only $100 the Committee for a Better Tomorrow, lawyers at Anapol Weiss gave $160,000. Shareholder Larry Cohan - who specializes in med-mal, asbestos and vaccine lawsuits – gave $48,000.
Directly, Senoff gave $500 to Wecht. Senoff’s bio mentions his work on med-mal cases, and he serves on the board of the Philadelphia Trial Lawyers’ Association.
Doyle, appointed in 2017, is not in the Philadelphia circle. He works in Wilkes-Barre’s Anzalone Law Offices, where he focuses on personal injury, motor vehicle, medical malpractice and sexual abuse cases.
His boss, William Anzalone, only gave $250 to the Committee for a Better Tomorrow in 2015, opting to give directly to the candidates. He and his firm donated $3,500 to Justice Dougherty, more than $6,000 to Donohue and $3,500 to Wecht. He also gave $1,000 to Republican Correale Stevens’ campaign.
Of Sprague & Sprague in Philadelphia, Podraza was already on the committee when the Democrat majority took over the court.
Podraza specializes in complex litigation and even represents doctors and hospitals, but the firm’s malpractice page highlights a $4 million verdict it believes is the highest med-mal verdict in a death case ever in Lancaster County, as well as a $6.5 million verdict on behalf of a 76-year-old man who died after colorectal surgery.
Podraza gave $1,000 to Dougherty’s 2015 campaign.
The rest of the committee is Francis Burns of Ricci Tyrell; Kathleen Bruder of McNees Wallace; Kristen Del Sole of K&L Gates; John Hare of Marshall Dennehey; Scranton lawyer Johanna Gelb; judges Daniel Anders and Christine Ward; and Judge Stanton Wettick.
Will there be "A Better Tomorrow" for med-mal lawyers?
Caputo, Doyle, Senoff and Podraza did not respond to email requests seeking comment on whether they recused themselves from the decision-making process.
The state Senate has asked for more time to study the effects of changing the venue rule, and the Supreme Court recently obliged. Should the delay carry into the summer, several committee members will be up for reappointment.
Justice Dougherty will also be facing possible fallout from the indictment of his brother on charges he steered more than $600,000 in union money to a personal slush fund.
Dozens, possibly hundreds, of submitted comments from the public are expected by the February 22 deadline.
Should the Supreme Court make the rule change official, it is not known what recourse lawmakers would have. As the Pennsylvania Record previously reported, the power to make such a decision rests with the Supreme Court.
The MCARE Act simply led to a commission that suggested the venue rule change, which the Supreme Court adopted. It did not create the venue rule itself.
Judge Wettick, a longtime committee member, served on an interbranch commission whose majority recommended the original venue rule shortly after the MCARE Act.
Wettick believed the General Assembly, though, had the power to issue the original venue rule.
Hoffman, the former committee chair, also served on a task force on medical malpractice created by then-Gov. Ed Rendell, as well as a state Senate committee on the issue. He’s proud to have helped create the measure that requires med-mal plaintiffs to find a health care provider who agrees there’s a probability the alleged care fell outside acceptable professional standards.
And he does not want to see the venue rule go.
“Would I be concerned? Yes,” he said. “Do I think it would be the best move? The answer would be ‘no.’”
Editor's note: Nicholas Malfitano contributed to this report.