In the wake of several major changes to the First Judicial District’s handling of mass tort cases, the Philadelphia Trial Lawyers Association sent a six-page, single-spaced letter this week to court leaders asking for rescission of some of the new court protocols, including the deferral of punitive damages in all mass tort claims.
Philadelphia Common Pleas Court Judge John W. Herron, the administrative judge in charge of the trial division and the main author of the court regulation, said during a meeting at the Philadelphia Bar Association’s offices Wednesday that “we’re anxious to consider if punitives are appropriate” outside of asbestos cases and the protocol is open to revision.
“If you look up the definition of ‘protocol,’ you’ll see there’s nothing final about a protocol,” Herron said at the meeting. “A protocol is a first step before ratification.”
In the case of asbestos litigation, punitive damages were first deferred starting in 1986 because of the threat of bankruptcies of the defendants, Herron said. Before the court regulation was promulgated last month, both the defense and plaintiffs asbestos bars indicated that they would be open to keeping punitive damages off the table, Herron said.
Herron said court leaders would like to have the same kind of dialogue they had with the asbestos bar with lawyers in other mass torts about changing the new rules.
The “General Court Regulation No. 2012-01, In re: Mass Tort and Asbestos Programs,” was promulgated out of the court leadership’s concern that only 42 percent of asbestos cases are meeting the American Bar Association’s standards for resolving cases in 24 to 25 months and because there was an increase of out-of-state plaintiffs, The Legal previously reported.
Philadelphia Trial Lawyers Association President Laura Feldman said in the letter that the deferral of punitive damages in mass tort cases is unconstitutional and contrary to the common law.
“Since much of the evidence relevant to the establishment of basic liability is also relevant to a claim for punitive damages, the deferral of claims for punitive damages will result in retrials of much of the basic cases before different juries, duplicating the time by the court and expenses incurred by the parties, thus, creating an additional backlog and imposing an oppressive burden on the plaintiffs’ right to pursue a claim for punitive damages,” Feldman wrote.
Feldman also wrote that requiring that discovery be conducted in Philadelphia is counter to the Pennsylvania Rules of Civil Procedure, which permit the taking of depositions anywhere that a witness may be located.
Feldman wrote that it was contrary to the principle of equal protection of the law to allow defense counsel the right to take depositions anywhere a witness is located while not affording plaintiffs the same right.
Feldman also wrote that the new rule — that eight asbestos cases will be grouped together for trial and that the cases must be from the same firm — “will create backlog” and is unfair to plaintiffs represented by lawyers who may not have enough cases, or at least enough asbestos cases involving the same kind of asbestos-related disease, to group together.
Feldman also wrote that regulations that only apply to out-of-state plaintiffs may be unconstitutional.
The letter was sent to Herron, Judge Allan L. Tereshko, supervising judge of the civil section, Judge Sandra Mazer Moss, coordinating judge of the Complex Litigation Center, and Judge Arnold L. New, who is set to become co-coordinating judge of the CLC with Moss later this year.
Pennsylvania Chief Justice Ronald D. Castille, the liaison justice to the FJD, and Justice Seamus P. McCaffery, the only other Philadelphia-based justice, also were copied on the letter.
Thomas R. Kline and Shanin Specter of Kline & Specter also wrote to Herron about the new rules.
When contacted for comment Thursday, Herron provided a copy of the two-page, single-spaced letter he sent to Feldman, Kline and Specter and on which Castille, McCaffery, Moss, New, Tereshko and Gerald J. Valentini, the president of the Philadelphia Association of Defense Counsel, were copied.
In his letter, Herron said that both letters addressed the deferral of punitive damages claims and the restrictive discovery rule. Herron wrote that the asbestos bar, both plaintiff and defense, were in favor of deferring punitives.
Herron also wrote that the court leadership found there has been an increase of 3,551 in the number of mass tort cases over those being disposed from 2008 to 2011.
“Whether you believe we have a backlog or not, there are a plethora of reasons otherwise for the protocols,” Herron said. “These protocols serve as a useful effort to raise and address a number of issues which Judge Moss was attempting to address piecemeal and which her successor named in the protocols, Judge New, will have to address. We felt the need to address several concerns, e.g., the increased filings from out of state, now at 47 percent; meeting the ABA standards in only 42 percent of the asbestos cases; the present inventory of 770 asbestos cases; an increase of 101 asbestos cases in 2011 over those disposed; an overall increase of 930 cases in the mass tort program for 2011; the need for voluntary mediation; the need for predictability in how cases were grouped; and the many other issues addressed in the protocols.”
Feldman said in an interview Thursday that following the meeting at the bar association, her plaintiffs colleagues and she “feel as if our reading of the rules and the concerns raised by that [about where discovery can be conducted] are going to be addressed.”
Overall, Feldman said she was optimistic that the court was open to adjusting the protocols.
Feldman also said that the two main issues for the trial lawyers are the deferment of punitive damages and requiring discovery to take place in Philadelphia.
“Like any change of protocol it’ll develop over time,” Feldman said.
During the bar association meeting, Herron also asked for a joint submission from the plaintiffs and defense bars on the court protocol requiring, at least for the time being, that discovery, including depositions, be conducted in Philadelphia except for exigent circumstances.
Herron also said that the concern with that part of the rule was raised more by the defense bar on behalf of the plaintiffs bar than by the plaintiffs bar itself.
Herron also said that Moss would likely adjust the limitation on pro hac vice counsel trying no more than two cases per year in the Philadelphia court system if there is a great outcry from pro hac vice counsel.
Moss, Tereshko and New all attended the meeting.
Amaris Elliott-Engel can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow her on Twitter @AmarisTLI. •