The Philadelphia Court of Common Pleas is projecting that 60 percent fewer mass tort cases will be filed this year than were filed in 2011.
According to the First Judicial District’s statistics, there were 2,690 mass tort cases filed in 2011, which was the continuation of an influx of cases that started in 2009 after civil court leadership suggested that increased filings would benefit the court’s budget.
But only 628 cases were filed through the end of August, and court leadership projected only 1,068 cases will be filed for all of 2012.
As of September 2, there were 5,383 pharmaceutical cases pending in the mass torts program, and 744 asbestos cases pending, according to court statistics.
The key players in the court’s mass torts program — Philadelphia Court of Common Pleas Judge John W. Herron, the administrative judge of the trial division; Philadelphia Court of Common Pleas Judge Sandra Mazer Moss, who is the coordinating judge of the Complex Litigation Center until last week; Philadelphia Court of Common Pleas Judge Arnold L. New, who is taking over as the sole coordinating judge; and Charles Mapp, who is the chief deputy court administrator — sat down earlier last week to discuss the current state of the program.
Herron said he hopes the message for 2012 is that plaintiffs lawyers have taken it to heart to file their cases elsewhere. Moss, who has been the coordinating judge since 2008, also said the defense bar has become more proactive at filing forum non conveniens and other motions related to venue.
“I think they’re under control now,” Moss said.
As Moss sat down for the interview, she had just come out of settling a group of asbestos cases, and New separately reported that some cases scheduled for October had settled in front of mediator Russell Nigro, a former Pennsylvania Supreme Court justice.
After putting out new rules for mass tort cases over the winter because of the length of time it was taking to dispose of cases, including that one-fifth of the asbestos cases had not been disposed after three years, the court is seeing that 100 percent of asbestos cases resolved in 2012 resolved within 36 months. Of the 272 cases that have resolved within three years of their filing, 204 resolved within 31 to 36 months of their filing.
Herron said that, while he wrote the initial protocols, Moss and New have been on the front lines to turn around the program. “We’re all really pleased with the turnaround in the last year in terms of moving the cases through mediation,” he said.
The new protocols encourage the mediation of cases with five former state and federal judges.
New said cases are getting to mediation several weeks before they are set for trial and the court is “not losing that trial time for the judges.”
The last asbestos cases that were tried to verdict were in June, and the mediator’s recommendation actually was a little bit above what the jury rendered, New said. That sends a message, New said, and “why spend $50,000 to try the case when you know what is an average probable verdict from the jury?”
Moss said that, because “asbestos repeats itself every month,” mediators or settling judges know what cases are worth.
The mediators also know what pharmaceutical cases are worth, which is why not a single case has been tried so far in 2012 except for one Risperdal trial that opened last Monday, Moss said.
There have not been any cases nationally regarding Risperdal, New said, and when he has talked with other judges and mediators “we’re all over the place, too,” on the value of Risperdal trials.
“We need to have a jury indicate what the valuation of the case is,” New said.
But New and Moss predicted that Risperdal would start to settle after there is information about the value of those types of cases.
The largest mass torts programs right now involve Reglan, at 2,291 cases, and Yaz/Yasmin/Ocella, at 1,912 cases.
The Reglan cases are stayed on appeal, and Moss said she does not think anything will happen until the state Supreme Court ultimately rules on the effect of a U.S. Supreme Court holding that it is impossible for generic drugmakers to comply both with federal regulations and with state law.
There is a possibility in the Yaz/Yasmin/Ocella cases of a national settlement, including 1,030 Philadelphia cases, of every plaintiff who alleges they suffered an injury to their gallbladder from taking those birth control pills, Moss and New said.
The interview marked one of Moss’ last acts in the mass torts program, because she will be reaching mandatory retirement age.
Moss said, “I feel like I worked my way out of a job” because the pharmaceutical bar is much less contentious now and now works together much more closely to develop case management orders, pick bellwether cases and to select cases for mediation.
New, who overlapped with Moss as co-coordinating judge under Herron’s aegis, said Moss came in and organized the program, while he inherited a program that is already established and organized.
New said, “I have learned just about everything” from Moss.
Herron also concurred that Moss has “done a superb job over her course of stewardship of the mass tort program.”
Herron also said that, despite several changes made by the court, the level of “hysteria” regarding mass torts from conservative tort reform groups and the plaintiffs bar has actually seemed to increase, not decrease, at the same time court leadership is “trying to achieve … the thoughtful examination of the court’s management of these cases.”