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When the coordinating judge of Philadelphia’s complex litigation center dismissed five PPA cases in October on the grounds that the city was an inconvenient forum for out-of-state claimants to file their suits against Pittsburgh-based Bayer Corp., local attorneys took notice. On Friday, lawyers from five plaintiffs’ firms that frequently handle claims within the CLC filed a King’s Bench brief with the Supreme Court, asking the justices to reverse Common Pleas Judge Norman Ackerman’s granting of Bayer’s forum non conveniens motions. Today, an appellate brief prepared by the same parties will be filed with the Superior Court. Ackerman’s dismissals appear to provide ammunition to defense counsel who handle suits at the CLC: While some sections of the CLC docket, such as Propulsid and asbestos, are composed of suits brought mainly by Pennsylvania residents, other sections have high rates of out-of-state claims. As of late last year, out of 16 cases listed for trial in 2004 involving the diet drug Fen-Phen, only one was filed by a Pennsylvania resident, according to court records. Of 30 suits listed for trial involving the cholesterol reducer Baycol, 11 come from Pennsylvanians. And within the section reserved for claims concerning the drug phenylpropanolamine (PPA), commonly used in cold medications, six out of 31 cases slated for trial were filed by Pennsylvanians. According to the King’s Bench brief, several similar motions have been filed in other Philadelphia mass tort cases since October, but attorneys involved in litigation before the CLC say that defense attorneys are refraining from inundating common pleas judges with forum non conveniens motions until they see how appellate courts respond to Ackerman’s decision. Plaintiffs’ attorneys say, however, that defense lawyers are using the threat of such motions as leverage during negotiations. But should Ackerman’s decision become precedent, some attorneys say, local firms, whether specializing in plaintiffs’ or defense work, could eventually experience extensive losses in clients and fees. Such a result would run counter to Philadelphia Bar Association Chancellor Gabriel Bevilacqua’s main agenda item for 2004 – lobbying to create a separate commerce court division within the Philadelphia Court of Common Pleas in the hope of making the city’s courts a more attractive destination for the filing and disposition of claims. However, Michael Scott, a Reed Smith partner who handles the defense in several Fen-Phen and PPA cases, said that the CLC’s reputation as an efficient trial program had attracted a deluge of out-of-state claims that unfairly taxes the program’s resources. “The complex litigation center has worked very, very well over the years.” Scott said. “Unfortunately, this influx of thousands of cases from [outside the state] threatens to make the system less viable for lawyers and Philadelphia citizens who have cases they want to bring.” He argued that a suit filed in Philadelphia by an out-of-state plaintiff will inevitably entail extra costs for the defense counsel, often because of the need to travel to depose the claimant’s doctor. “No matter where the defendants are located,” Scott said, “these cases turn heavily on which doctors they saw.” Plaintiffs’ attorneys counter that out-of-state claimants’ willingness to come to Philadelphia benefits the defense in many cases. Frequent PPA defendant GlaxoSmithKline has headquarters in the city. And headquarters for Bayer, also the main Baycol defendant, are closer to here than they are to, say, Washington state or Hawaii. In short, they say, there’s no logical reason for the CLC to stop hearing cases brought by out-of-state plaintiffs. “What [Ackerman's ruling] does is encourage other defendants to utilize such a motion as a wedge to attempt to settle cases,” said Arnold Levin of Levin Fishbein Sedran & Berman. Levin is a signatory to the King’s Bench brief, and his firm handles a significant number of the PPA claims. He said that his firm had filed 300 to 400 out-of-state claims before the CLC. Also attaching their firms’ names to the brief were Sol Weiss of Anapol Schwartz Weiss Cohan Feldman & Smalley; Gene Locks of the Locks Law Firm; Mark S. Levy of Levy Angstreich Finney Baldante Rubenstein & Coren; and Lee Balefsky of Kline & Specter. In the King’s Bench brief, written by Levin Fishbein’s Michael Weinkowitz, the signatories argue that the Supreme Court needs to immediately exercise jurisdiction over the cases because Ackerman’s decisions have caused Philadelphia’s mass tort docket to come to a “virtual halt” and could have “enormous implication in thousands of pending cases.” Among other points, the brief raises the issue of whether a defendant can move for a dismissal under forum non conveniens when the lawsuit in question was filed up to two years prior and rulings on Frye motions had already been entered. Plaintiffs’ attorneys have complained that defense counsel waited until right before trials were to begin before filing their inconvenient forum motions. “Quite frankly, it’s outrageous to wait [a couple of] years and take up the court’s time and utilize procedure as a club,” Levin said. And opponents of Ackerman’s decision are quick to point out the links between the CLC and Philadelphia’s economy. “Across the board, layoffs could happen at some of the city’s biggest defense firms and most prominent plaintiffs’ firms,” said Kline & Specter co-founder Shanin Specter. “All you have to do is go to one of the case management conferences in one of the pharmaceutical cases before the complex litigation center, and you’ll see dozens of lawyers, sometimes more. If these cases are dismissed in a wholesale manner, those dozens will be replaced by dozens of others. . . . Pennsylvania’s loss could be Alaska’s gain or Oklahoma’s gain.” Levin noted that because of the CLC’s ability to handle out-of-state claims, “hundreds of lawyers come here once a month or more and utilize commerce in Philadelphia. In a day and age when you’re trying to bring business to Philadelphia . . . why shouldn’t the community reap the economic benefits of [its court system's] resources?” One attorney from a firm that signed the brief, who did not wish to be named, said that Ackerman’s decision could have “a huge economic impact by virtue of loss of jobs for attorneys, paralegals and others.” “The mass tort system helps fill up a lot of hotel rooms and accounts for a lot of filing fees paid to the county,” the attorney said. Defense firms may not be able to ignore the potential loss of work, either. “More litigation does mean more business for lawyers,” Reed Smith’s Scott said.

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