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The purpose of the city court system’s Complex Litigation Center is no big secret. Thousands upon thousands of torts – many of them related product liability actions built on intense medical evidence and not eligible for class status – are ushered toward settlement. Within the CLC’s various mass tort programs – Fen-Phen, latex glove, etc. – a handful of bellwethers will typically be separated from the flock and actually seen through to jury trials, but the remainder will likely be settled out of court. “What we really do is handle large numbers of cases,” said CLC Coordinating Judge Paul P. Panepinto, adding later, “We like to settle most of them.” With the CLC responsible for nearly 20 percent of the Philadelphia Common Pleas Court’s non-arbitration civil docket, a lot rides on the few test-case trials whose outcomes help set the tone for the private discussions that lead to settlements of thousands of sibling actions. As recent events in the CLC’s hormone-therapy program indicate, nobody understands how much is at stake better than the judges to whom those trials are assigned. Specifically, the judges who presided over the program’s first two trials appear to have wrestled over how to hand down sure-to-be-appealed rulings without paving the way for a retrial order from an appellate panel. After about a month of proceedings, Daniel v. Wyeth ended in late January with a $1.5 million compensatory damages jury verdict for that matter’s wife-and-husband plaintiffs. That trial was not reverse bifurcated, but was split into compensatory and punitive damages phases. However Senior Judge Myrna P. Field disagreed with the jury’s conclusion that punitive damages were warranted in the case and went on to seal the Daniel jury’s noncompensatory damages award after granting the defense JNOV on that component of the verdict. Field held that the jury’s punitive damages award can be unsealed at a later date should an appellate court reverse her and side with the jury on that issue. Just weeks later, Senior Judge Ricardo C. Jackson – who presided over the roughly monthlong trial in Nelson v. Wyeth, also not reverse bifurcated – went one step further than Field when it came to the question of punitive damages in that case: He granted a Wyeth motion for compulsory nonsuit on the matter’s punitive damages claim soon after the plaintiffs had rested. The Nelson panel went on to deliberate as to compensatory damages only, awarding that action’s wife-and-husband plaintiffs $3 million. The hormone-therapy cases generally involve claims that prescription drug treatment for women’s menopausal problems led to breast cancer and/or other serious health problems. Nelson and Daniel are the first two cases to be tried – by agreement of both sides of the hormone-therapy program aisle – as part of the program’s bellwether process, according to sources close to those cases. Daniel was a defense-side pick, while Nelson was picked by the plaintiffs side. Of the program’s eight bellwether cases, the plaintiffs have decided not to immediately pursue two of their four picks, according to Panepinto. Panepinto described the bellwether process as “essential” to the CLC’s settlement-minded goals. The former city Family Court head judge said that CLC-assigned trial judges like Field and Jackson won’t approach him mid-trial to discuss the decisions they’re mulling over. That might happen post-trial, if at all, Panepinto said. And he says that if they do, he never tells the judges they were right or wrong in handing down a particular decision. “I’m not on the appellate court yet,” joked Panepinto, a state Supreme Court candidate hoping to secure his Republican Party’s nomination during this spring’s primary. Panepinto may not have to worry about affirming or reversing Field’s and Jackson’s decisions, but there’s a good chance Pennsylvania’s appellate courts will, if the cases don’t settle first. The big question is whether appeals judges will take issue with Field’s and Jackson’s punitive damages-related rulings and remand the cases for retrials. If that occurs, lawyers close to the cases say, the best-case scenario – from a timeliness perspective – is that the retrials would be limited to punitive damages only. One former veteran of the city court system’s civil bench described Field’s method as “a unique way of reserving judicial resources.” “If it turns out that she was wrong on the issue of punitive damages, then she would have had to convene a whole new jury,” reasoned Gene Cohen of Montgomery McCracken Walker & Rhoads. Cohen, a member of The Legal‘s editorial board, said that local federal judges have routinely granted JNOV after a jury trial but retained the result in the event of reversal, while common pleas judges in similar situations have watched awards go up on appeal only to be remanded to the trial court to hash out all over again. Cohen also said that he’s never come across Field’s tactic being used in a Pennsylvania state court setting. Before assuming senior status, Field was a successor of Panepinto as head of the Family Court division. Jackson has recently devoted his time to civil cases after stints on the city’s family and criminal courts, Panepinto said. He said it’s a coincidence that this winter’s two hormone-therapy trials were presided over by senior judges. “I’m not in charge of who I get. The assignments are done above me,” he said, adding that he has deep respect for the abilities of all the judges assigned to the CLC. Panepinto said that on a given month, he’ll have roughly four to five judges available to preside over mass tort trials. “My biggest gripe is that I wish I had more full-time-staff judges,” he said. Senior judges are assisted by pool clerks and don’t have their own full-time aides. While that hasn’t led to any problems as of yet, Panepinto said he believes it would be preferable for judges presiding over complex mass tort trials – which often last several weeks – to be assisted by their own full-time staff. “The best part of this job is you work with nice people, and the lawyers are civil,” Panepinto said. “But the hardest part of the job is managing independent elected officials – working with judges who have [their own] schedules and are independent in many ways.”

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