State-court mass tort cases present challenges to the safeguards against forum-shopping, and a recent decision in the Reglan/metoclopramide litigation is a prime example.

In July, the Pennsylvania Superior Court voted, 2-1, in Hassett v. Dafoe and three companion cases not to apply pre-emption at the motion-to-dismiss stage to failure-to-warn claims involving generic versions of Reglan, a gastric pharmaceutical. Although this decision is pending further review, the ruling, if left to stand, will be an outlier, denying dismissal despite two recent U.S. Supreme Court cases (and the great weight of additional authority) holding that materially identical cases against generic drug manufacturers are pre-empted by federal law.

The result is that hundreds of cases centralized in the Philadelphia Court of Common Pleas Mass Tort Program, if they go forward would be tried in a system that inherently is not equipped to provide fair trials when plaintiffs hail from 50 different states. It also would encourage forum-shopping in an already notoriously overburdened state-court system.

Unlike federal multidistrict litigation, in which the Supreme Court’s decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach directs that cases will return to their home districts for trial, state-court coordinated mass torts retain cases in that state for trial. This results in great unfairness to defendants because they have no means to secure the appearance of critical out-of-state witnesses for trial, and the court trying the case often is not well-versed in the out-of-state law that applies to the case.

The Pennsylvania Superior Court ruling on July 29 is an example of the inequities that can result from state-court coordinated proceedings that draw plaintiffs from many different states.

When many people are injured by a single product, whether manufactured by a single company or multiple manufacturers, as with asbestos or pharmaceuticals, it can lead to hundreds or even thousands of lawsuits. Personal injury lawsuits are generally not amenable to class action treatment due to the predominance of individual issues of causation and damages.

The federal courts have dealt with such mass tort litigation primarily through the device of multidistrict litigation under 28 U.S.C. 1407. If the volume of cases warrants, and common issues exist that can be efficiently managed in a coordinated proceeding, the Judicial Panel on Multidistrict Litigation can order all cases in the federal system centralized in one court for coordinated pretrial proceedings.

But the Supreme Court made clear in Lexecon that absent-agreement cases must be returned to the courts that transferred them for trial, an important proviso that distinguishes a federal MDL from state court mass tort proceedings.

In recent years, an increasing proportion of mass tort litigation has been brought in state courts, largely in just a few states. A number of states, including California, New Jersey and Pennsylvania, have established specialized complex litigation or mass tort sessions. There are positive aspects to such centralization, as judges develop expertise in the subject matter and lawyers on both sides come to know what to expect.

But as some state courts have become more proficient at handling mass torts, they have become a magnet drawing cases from both near and far. Some state systems have gone so far as to encourage out-of-state plaintiffs’ counsel to bring nonresident plaintiffs’ cases to the forum.

The most prominent example is the Philadelphia Court of Common Pleas, which, after doing so, found itself with a backlog of asbestos and pharmaceutical mass tort cases, mostly of nonresidents, that threatened the court’s ability to hear slip-and-fall, motor vehicle accident and other cases of its own residents. It also imposes a burden on state residents to sit as jurors, a consideration recently cited by the Illinois Supreme Court in dismissing an asbestos case of a nonresident on forum non conveniens grounds in Fennell v. Illinois Central R.R.

Corporate defendants by and large prefer federal court and tend to remove on federal-question or diversity ground whenever possible. Plaintiffs often prefer state court. While the Class Action Fairness Act (CAFA) authorizes removal of mass tort actions to federal court, it is an open question the extent to which the removal provision applies to coordinated mass tort proceedings in which plaintiffs do not propose to hold trials of 100 or more plaintiffs together.

For example, the U.S. Court of Appeals for the Ninth Circuit on August 30 heard two appeals in the propoxyphene litigation that involve whether CAFA mass action removal is proper when, by statute, state coordination is for all purposes. Under the Erie doctrine, the same substantive law will apply in state and federal court, but that does not hold true for procedure. In federal court, the Federal Rules of Civil Procedure and Federal Rules of Evidence will apply, and with them the Twombly/Iqbal pleading standard, the Daubert expert testimony standards and the Celotex summary judgment standard.

In contrast, state pleading standards often are more liberal; some jurisdictions still adhere to the Frye standard for expert testimony, and to obtain summary judgment a defendant may have a higher burden to negate the plaintiff’s case.

Our system affords plaintiffs the choice of forum, and, if a plaintiff prefers to be in state court, a plaintiff can file there. But when plaintiffs’ counsel files not in the plaintiff’s home state, but instead in a distant state forum, problems arise. Apart from the burden to the court system and citizenry of a state of lawsuits having no connection to the forum, it is patently unfair to defendants and not in the interests of justice.

In truth, it deprives all parties of a fair trial. Apart from the reality that, in the mass tort context, it is practically impossible to provide actual trials for all but a few bellwether cases, any trials of nonresident plaintiffs will lack live testimony of all witnesses except for the plaintiff and hand-picked friends or family members willing to travel. Because state courts cannot compel attendance of witnesses across state lines, any witnesses favorable to the defense will appear only by deposition, a poor substitute. And the most critical witnesses in personal injury litigation, the plaintiff’s treating doctors, will only be seen by the jury, if at all, on videotape.

Furthermore, because tort law is primarily state law, the law will be applied by a judge who is less familiar with it than are judges in the plaintiff’s home state, or even federal district judges in that state who regularly apply it in diversity cases. And if there is an unsettled question of state law, there is no effective tool to answer it.

To illustrate, in the Reglan mass tort litigation, an Alabama federal court recently certified to the Alabama Supreme Court the question of whether the brand drug manufacturer could be sued if a plaintiff was dispensed only the generic form of the drug; a New Jersey mass tort judge faced with trying to answer the same question for several other states lamented the unavailability of the same procedure and proposed staying cases to see if the other states’ appellate courts might answer the question.

The pendulum generally swings back, and state courts seem lately to be pulling in the welcome mat, as evidenced by the caution issued to out-of-state plaintiffs by the Philadelphia court to seek other venues to file their claims. The Supreme Court’s 2011 personal jurisdiction decisions in Goodyear v. Brown and McIntyre v. Nicastro, rejecting the “stream of commerce” basis for personal jurisdiction, may also breathe new life into defendants’ forum challenges by requiring a nexus between plaintiff’s cause of action and the forum to establish “specific jurisdiction” over defendants who are not “at home” in the forum and thus subject to general jurisdiction.

Richard Oetheimer is a partner and Sarah Frederick is an associate in the Boston office of Goodwin Procter and are members of the products liability and mass torts practice. They represent one of the defendants in the Reglan/metoclopramide litigation.