Amaris Elliott-Engel writes for affiliated publication The Legal Intelligencer.
The Philadelphia Court of Common Pleas, recently a hotbed for mass-tort litigation, may have seen its mass claims drop by 70 percent in 2012. But that does not mean that mass torts are slackening elsewhere.
Lawyers say that mass-tort cases are being filed in other jurisdictions because of the uncertainty that was created after many administrative changes were made to the Complex Litigation Center, including the end of reverse bifurcation and the end of consolidation in pharmaceutical cases.
Defense counsel James M. Beck, counsel with Reed Smith's life sciences health industries group, compared mass torts to squeezing toothpaste out of a tube.
"If you squeeze it one way, it'll go somewhere else," he said.
The mass-tort toothpaste is being squeezed into New Jersey and federal court with its multidistrict litigation, attorneys say.
More cases may also go to Delaware because the U.S. Court of Appeals for the Third Circuit ruled that GlaxoSmithKline qualifies as a Delaware corporate citizen because of its 100-square-foot room in Wilmington, Del., said plaintiffs attorney Shanin Specter of Kline & Specter.
If GlaxoSmithKline's "amazing forum-shopping jujitsu is permitted to stand, then there will be a potential fall-off in cases in the future to be filed against GSK in Pennsylvania," Specter said.
Cases are being filed in federal court, other state courts, or, if there is not a statute of limitations problem in the cases, then those cases are just not being filed for the time being, said plaintiffs attorney Dianne Nast, co-lead counsel of the Zoloft multidistrict litigation's plaintiffs steering committee's executive committee and of NastLaw.
"A message did go out across the country to the bar that your client's cases are not welcome in Philadelphia," Specter said. "That has probably had some chilling effect on filings in some cases. Plaintiffs have a choice of forum and lawyers don't want to file cases where they have been told by highly respected judges that the filings aren't welcome."
During a joint interview in February with Judge Arnold L. New, supervising judge of the trial division's civil section and coordinating judge of the Complex Litigation Center, Judge John W. Herron, administrative judge of the trial division, said since he wrote new protocols for the mass torts program "to add structure and predictability to the mass tort program and to begin to manage what we viewed then as a crisis in the number of filings, we have had an exceptional result where we have now greatly reduced the filings to a much more manageable number. … Judge New and I have discussed this on a regular and frequent basis during the year and we both feel this is a remarkable turnaround which restores our confidence in our ability to manage the filings."
The program grew over time because it had procedures like short-form complaints that moved things along and because it had judges very familiar with mass torts like Judge Sandra Mazer Moss, Robert C. Heim and Judy L. Leone of Dechert said in a joint interview.
"Philadelphia was one of the places around the country that plaintiffs wanted to bring their cases because Philadelphia has a sophisticated mass torts docket," which leads to cases settling, Heim said.
And if cases did not settle, "Philadelphia juries were generous, were kind to plaintiffs," Heim said.
In order to deal with the crush of cases, cases were consolidated, Heim said. But defendants hate consolidation because it is very hard to argue to juries that there is no causation when more than one plaintiff has a case pending at one time, Heim said.
But every time defense lawyers argued consolidation violated their clients' due process rights, they would be told if one case at a time was tried, "we'll be here until the 22nd century," Heim said.
Attorneys are hesitant to come to Philadelphia now, said plaintiffs attorney Michael M. Weinkowitz, of Levin, Fishbein, Sedran & Berman in Philadelphia.
For example, Weinkowitz said that his firm filed Tylenol cases in the Philadelphia Court of Common Pleas and the defendants eventually removed to federal court. While plaintiffs could have won a remand motion, "with so much uncertainty here in Philadelphia with the mass tort program, we were much better having the cases stay in the Eastern District of Pennsylvania. That's how we ended up filing in the Tylenol MDL," Weinkowitz said.
U.S. District Judge Lawrence F. Stengel of the Eastern District of Pennsylvania is now presiding over an MDL for plaintiffs who allege that their use of over-the-counter Tylenol caused their livers to fail or be poisoned.
The drop-off in filings, Nast said she suspects, is because things are in flux with the Complex Litigation Center.
"We're not certain how these changes in procedures will settle out," Nast said. "My guess is a number of people are sitting back [to see] where and how things settle out."
Other times when there was a change in the presiding judge, as there was from Moss to New last year, there also was a slow-down in case filings, Nast said.
Asbestos cases are not slowing overall, said defense attorney Sharon Caffrey, chair of Duane Morris' products liability and toxic torts division in its trial practice group, but Philadelphia "really became a less attractive jurisdiction. We still have Philly juries and we have consolidation, but Philadelphia is not as attractive to out-of-state firms and forum-shopping plaintiffs."
The docket has changed from mostly nonmalignancy cases to malignancy cases, Caffrey said, and more plaintiffs with mesothelioma are filing cases because patients are being educated more to seek out counsel by physicians.
The peak of asbestos litigation is not expected for several more years, Caffrey said.
Kenneth A. Murphy, vice chair of Drinker Biddle & Reath's products liability and mass tort practice group, said the message sent by Herron in his order made it clear that "out-of-state attorneys are not necessarily welcome to dump their cases in the Court of Common Pleas."
But Murphy, who is involved with the Risperdal and Topamax litigation, said he does not think mass torts are going to any other particular jurisdiction instead of Philadelphia. The inventory of cases has not dried up in either the Risperdal or Topamax litigation, Murphy said.
But plaintiffs attorneys may no longer want to start new mass torts in Philadelphia, Murphy said.
"It may be in some of the mass torts, after having made an initial pass or run at defendants, plaintiffs lawyers are done with this litigation and are going to pursue other litigation and do it elsewhere," Murphy said.
Cases also may be dropping off in Philadelphia because mass torts are cyclical and defendants right now may not be engaging in as much tortious conduct, Specter said.
If companies are more careful and more cases are not arising, "that would be good for America," Specter said. "It may not be fruitful for individual plaintiffs attorneys and law firms. That is not as important as preventing these injuries. The lawyers will find something else to do, obviously."
The volume of mass tort cases does seem to be down around the country, perhaps because a lot of states have implemented punitive damages limitations, Leone said.
Another reason that mass torts may be slackening to some extent is that federal regulators may be being more aggressive, Beck said.
"The [federal Food and Drug Administration] has been getting problems solved faster so you don't have huge numbers injured by products, so the number of people who can claim injury is smaller," Beck said.
Further, when a state loses its manufacturing base like Pennsylvania, that leads to less litigation, Specter said.
One plaintiffs attorney said the problem with the change in the stance of the Philadelphia court leadership is the main goal of defendants is to delay litigation as long as possible,
"Bad guys don't like to have to go to trial," the lawyer said.
The policy also is "going to affect the practice of law in this region," the lawyer said. "There will be much less work for defense attorneys and many less cases being filed here and judges won't have anything to do."
Editor's note: This is the first part of a three-part series about the state of mass-tort litigation in Pennsylvania. The next installment of the series will examine the shifting business model of products liability work within defense firms.