When the American Tort Reform Association declares that it has “very good news” about a court it loves to loathe, it’s sure to be bad news for the plaintiffs bar.
Long attacked by ATRA and Big Pharma as a haven for opportunistic plaintiffs lawyers, the Philadelphia Court of Common Pleas is going through some big adjustments. Responding to what he called “number of concerns and criticisms,” Administrative Judge John Herron issued a five-page order last week instituting a series of reforms that appear to benefit defendants. Some of the big changes that had ATRA cheering include the deferral of punitive damages, an end to reverse bifurcated trials, limits on out-of-state plaintiffs lawyers and discovery, and new leadership in the court’s mass tort program.
Plaintiffs lawyers with connections to the court told us it’s too early to gauge exactly how the changes will affect current and future cases, but a some of them conceded that the news wasn’t good. “We have changes that will hopefully not hurt plaintiffs too much but are certainly being put in place to accommodate the defendants,” said Clayton Clark of Clark, Burnett, Love & Lee, a Houston lawyer who has been involved in Paxil and Accutane litigation in Philadelphia.
Last week’s order, first reported by The Legal Intelligencer, promises to have its greatest effect on Philadelphia’s asbestos docket. (Judge Herron cited a “significant backload” of 770 asbestos cases.) But the plaintiffs lawyers behind the court’s broader 6,220 mass tort caseload are likely to feel the sting as well.
Judge Herron appears particularly bent on making it tougher for out-of-state plaintiffs to take advantage of the Philadelphia court’s jurisdiction by targeting Pennsylvania-based subsidiaries of deep-pocketed corporate parents. “This new regulation is seeking to turn that around and discourage out-of-state filings I believe,” said Judy Leone, a defense partner at Dechert. Among other things, the order prohibits out-of-state lawyers who aren’t members of the Pennsylvania bar from participating in more than two trials a year, and it bars litigants from pursuing discovery beyond Philadelphia. The order also limits case consolidation without an agreement from all parties.
Leone said the changes may encourage plaintiffs to file lawsuits in their own states. Clark predicted that the order could also lead to busier dockets in other states with many pharmaceutical companies, particularly New Jersey, New York and Boston. “You really can’t get away from the fact that the skylines of the northeast are painted with drug company logos, and that’s where we have to bring our cases,” he said.
ATRA cited out-of-state filings when listed the Court of Common Pleas as its No. 1 “Judicial Hellhole” for the last two years straight. Drug companies have been fighting hard on the jurisdiction issue too, but so far without much success: Earlier this month lawyers for Bayer AG at Eckert Seamans Cherin & Mellott failed to convince the state’s Supreme Court to hear their arguments that Pennsylvania was not the most convenient jurisdiction for cases involving Yaz and Yasmin birth control pills.
The new discovery provisions, meanwhile, could increase costs for out-of-state plaintiffs since they and their witnesses would need to travel to the city. Clark said those changes would force plaintiffs lawyers to be more selective about the cases they bring. With seven-figure cases, “you can afford these new mandates,” he said. But with cases worth $100,000 to $200,000, Clark added, “likely you have to take a second look if these mandates become prohibitively expensive.”
In a statement on last week’s order, ATRA praised Judge Herron’s decision that the mass tort program’s supervising jurist, Judge Sandra Mazer Moss, would take “senior status” by the end of the year. “Many defendants are quietly relieved by that news,” ATRA said in a statement. Among her other rulings, Judge Moss in November refused to throw out 2,000 suits against generic makers of Reglan despite a U.S. Supreme Court ruling that, according to the defendants, required dismissal. Her decision is on appeal.
Still, some plaintiffs lawyers, after decades of tort reform efforts, are sanguine when asked about the new Philadelphia rules. “It’s just an administrative change in how these cases are being addressed, and we’ll live with it,” said Fred Thompson III of Motley Rice, who had Paxil and Digitek cases in the court. “Philadelphia’s always been a place where people get a fair shake, and it’ll continue to be that way.”