Editor’s note: This is the second article in a two-part series. The first part can be viewed here.
The leaders of the First Judicial District have said they want increased interest from the mass torts bar in the court’s specialized mass torts program within the Complex Litigation Center.
And the bar appears to be rewarding the court with praise over the reappointment of Common Pleas Judge Sandra Mazer Moss as the center’s coordinating judge in January.
Common Pleas President Judge Pamela Pryor Dembe’s public campaign to lay out a welcome mat for increased mass torts filings also appears to be gaining the reward of increased filings in the Avandia diabetes drug litigation.
The plaintiffs mass torts bar has before it an explicit choice when filing Avandia cases.
That’s because the federal Avandia Multidistrict Litigation is being overseen eight blocks away from City Hall in the Philadelphia federal courthouse. U.S. District Court Judge Cynthia M. Rufe of the Eastern District of Pennsylvania, who is supervising the federal litigation, says that there are more than 600 cases in the MDL.
There were only 68 Avandia cases pending in Philadelphia’s Complex Litigation Center at the beginning of the year, but there are now 138 cases pending as of March 1. That increase in filings has been touted by both Dembe and Moss.
Tom Kline of Kline & Specter and a member of the plaintiffs’ steering committee for the federal MDL over Merck & Co.’s Vioxx drug, said the real competition for cases is between federal courts and their MDLs for mass torts and the state courts that are home to defendants’ places of business.
“It is very savvy of Judge Dembe and the courts to recognize the importance of a vital mass torts program in helping to finance the cash-strapped court system,” Kline said.
Sol H. Weiss, a shareholder of Anapol Schwartz Weiss Cohan Feldman & Smalley and plaintiffs liaison counsel in the Avandia, Paxil suicide and Trasylol mass tort programs, said that there will be renewed interest from the plaintiffs and defense bars in mass torts because of Moss’ appointment as coordinating judge.
“In certain respects she’s more of an activist judge, hands on, very accessible to the parties,” Weiss said. “That’s not to say prior judges weren’t as activist, but she has demonstrated in the short time she’s been in the program a vigorous interest in getting the dockets moving.”
Everyone interviewed for this series spoke well of the center’s management of mass torts. But some members of the mass torts bar, particularly members of the plaintiffs bar, expressed dissatisfaction with the pacing of mass torts cases during the tenure of Moss’s coordinating judge predecessor, Judge Allan S. Tereshko. And some members of the plaintiffs bar also privately expressed dissatisfaction with a number of decisions that Tereshko made during his most recent tenure as coordinating judge.
A HANDS-ON MANAGER
Moss’ second tour as coordinating judge of the center has been welcomed by the mass torts bar because of her experience in the area of mass torts and her management skills.
When Moss was first assigned to be the calendar judge for asbestos cases in 1987, she organized the program that became the Complex Litigation Center’s mass torts program with the approval of former Supreme Court Justice Ralph J. Cappy, then the Supreme Court’s point person working with the FJD.
Moss recalls her horror that, because of a 7,800-case backlog dating back to 1975, plaintiffs were dying and defendants were going bankrupt before their cases were heard. She sat down one weekend with lawyers from both sides as well as courtroom staff, and Moss’ husband, a professor teaching organizational behavior and design, helped write a business plan for the program that eventually became the center.
The Complex Litigation Center has “not only been a local and regional model but it’s been a national model,” said Benjamin Shein, a plaintiffs asbestos lawyer of Shein Law Center who litigated the very first asbestos trial Moss presided over in 1988. “It’s sailed smoothly along with many judges in the program. She’s now back to continue what she started.”
Shein said Moss believes in communication with parties, and her procedures, including more frequent meetings, are all geared to communication among the parties and the court that will lead to the resolution of cases by settlement, trial or dismissal. Moss’ management style is “starting to get the vibe back and procedures back that she instituted in 1988,” Shein said.
“She is the logical choice among the many well-qualified judges in the system to be in charge of the Complex Litigation Center at a time when a stated goal is to rebuild its natural influence,” Kline said.
Kline praised Moss’ decision to appoint discovery masters to handle significant document disputes.
In his time at the helm of the center, Tereshko issued a number of high-profile rulings dismissing plaintiffs’ claims, particularly in the hormone replacement therapy and asbestos programs.
A number of those cases — over the viability of HRT cases filed outside of the regular statue of limitations but within two years of the release of a widely disseminated study linking HRT with breast cancer — are currently on appeal to the Superior Court.
Last fall, in In re Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler , Tereshko ruled that experts could not state as generally accepted science the theory that “each and every breath” of asbestos fiber is a significant contributing factor to diseases linked to asbestos.
A plaintiffs lawyer from outside of Pennsylvania said more cases are likely to be filed in the Complex Litigation Center because of Moss’ reputation. Plaintiffs are more likely to file in state court if they don’t think the supervising judge is hostile to them, the lawyer said.
“I don’t know if it was that Judge Tereshko was seen as hostile to plaintiffs’ claims,” the lawyer said, but Tereshko had granted judgment notwithstanding verdicts or summary judgment enough times against plaintiffs that it was “certainly giving people pause.”
Daniel J. Ryan Jr., a shareholder in Marshall Dennehey Warner Coleman & Goggin’s environmental and toxic tort practice group and a defense attorney for asbestos defendants, said he has the impression some rulings may have impacted the number of cases plaintiffs attorneys filed in the center.
He said all of the judges who have run the program have been reasonable, and cases usually get to trial two years to two-and-a-half years from the date they’re filed.
Michael T. Scott, a partner in Reed Smith’s life sciences health industry group and defense liaison counsel in the hormone replacement therapy and Fen-Phen programs, said he knows “some lawyers on the other side of the aisle have complained about certain judges who have run the program.”
But Scott said the number of plaintiffs lawyers from Texas and other states who file their mass tort cases in Philadelphia makes it clear that members of the plaintiffs bar believe they get a fairer shot in a Pennsylvania court.
“I’ve seen it work now under Judge Moss, Judge O’Keefe, Judge Tereshko, Judge Ackerman, Judge Panepinto and Judge Tereshko again and now we’re back to Judge Moss again,” Scott said. “Throughout it’s been well-managed, well-run. If you look at the number of cases that do get filed here, plaintiff lawyers think it gets well-run. They bring their cases here. I think it’s well-run here.”
The judges in the center have never been pro-plaintiff or pro-defendant, and the center’s judges have a great record of being affirmed when they granted summary judgment or judgment notwithstanding the verdict, or denied post-trial relief, Scott said.
LOOK AT THE MERITS
Tereshko, who was the center’s coordinating judge from 2001 to 2002 and from 2006 to 2008, said that if members of the mass torts bar are complaining about rulings he made against their cases, he’d direct them to look at the merits of their cases.
Tereshko, who is now the Day Forward 2006 team leader, said he read every motion himself, while his law clerks also wrote recommendations on the motions.
“I have to write an opinion in each one of those cases and I’ve written a lot of opinions,” Tereshko said. “I base my decision upon the merits of the case or lack thereof, based on Pennsylvania law. That’s all I can do.”
And the judge said that it is an insult to the justice system if the plaintiffs bar or the defense bar were making strategic decisions about where to bring or defend their cases because of adverse rulings.
A LEADING LIGHT UNDIMMED
In an interview, Moss has vowed that none of the mass torts programs will be out of compliance with the American Bar Association’s standard that civil cases should be concluded within two years of filing. Moss has said the HRT program involving claims that HRT causes breast cancer and the silica program involving claims that silica, a mineral found in glass and concrete, causes lung disease have been lingering for too long.
Brian McCafferty, of Kenney Egan McCafferty & Young in Plymouth Meeting and plaintiffs liaison counsel for the silica program, said the silica program has been dormant in the last couple of years, but under Moss it is clear the cases will be completed by the end of 2009.
John C. McMeekin II, a partner with Rawle & Henderson and defense liaison counsel for the silica program, said the silica cases have lingered as the federal silica MDL was pending. But Moss is moving the program because she appointed Gene D. Cohen, a former Philadelphia Common Pleas judge, as a special master for the program and because Moss has set trial dates with the expectation that the entire docket will be tried by the end of the year, McMeekin said.
Tobias L. Millrood, a partner with Pogust Braslow & Millrood in Conshohocken and plaintiffs liaison counsel for the HRT program, said there was some slowdown in the HRT program. But he said the slowdown was partially attributable to the mass torts bar and lower courts waiting for guidance from the U.S. Supreme Court in Wyeth v. Levine.
The justices ruled 6-3 earlier this month in Wyeth that federal approval of drug labels giving warnings about the effects of the drugs does not bar lawsuits under state law claiming inadequate warnings of health risks from the drugs.
The HRT program has continued to run and several cases were settled, Millrood said.
Stephen A. Sheller, managing partner and founder of Sheller, a plaintiffs firm in the areas of toxic tort and other personal injury litigation, praised Moss for immediately holding meetings on mass torts and getting the programs organized in terms of handling discovery and trials. He said that Moss’ method was a more effective method of managing cases than ruling on cases and dismissing them that way.
“Not that I’m critical of any other member of the judiciary, (but) she was by far the best manager we had,” Sheller said.
Weiss said that Tereshko had reduced the number of monthly meetings in the mass tort programs. Weiss also said he believes the Avandia and Trasylol programs will stay close to the ABA guidelines under Moss’ leadership.
Other attorneys said the program has always run well.
Robert A. Limbacher, a partner in Dechert’s litigation life sciences/pharmaceutical, mass torts and products liability areas and defense counsel in the past for GlaxoSmithKline and Wyeth pharmaceutical companies, was surprised to hear that some might feel the center’s prestige has dropped.
The center offers “some of the same efficiencies achieved in the MDL litigation we’ve been involved in,” Limbacher said.
On the asbestos side, David E. Brenner, of Howard Brenner & Nass and a plaintiffs attorney involved in asbestos litigation, reported that the program is current with the ABA standard.
“The court’s responsive to accelerated listings in cases of very ill or dying plaintiffs,” Brenner said. “It’s really a national model and has been for many years.”
Byron G. Stier, associate professor of law at Southwestern Law School in Los Angeles and editor of the “Mass Tort Litigation Blog,” said that Philadelphia’s mass torts reputation hasn’t dimmed on the national level and the center remains “one of the leading lights of mass tort court management.” •