After restructuring the rules for mass tort cases, First Judicial District leaders are projecting a decrease in suits begun this year, Judge John W. Herron, the administrative judge of the common pleas court’s trial division, told the annual meeting of the Philadelphia Association of Defense Counsel this week.
Herron, along with Judge Sandra Mazer Moss, co-coordinating judge of the mass tort program, and Judge Arnold L. New, the other co-coordinating judge of the Complex Litigation Center — and who is set to succeed Moss as the sole coordinating judge at the end of the year — provided an update on measures the court has taken since the winter to change the mass tort program.
While Herron said he pays attention to news coverage of the courts, including that the conservative legal advocacy group the American Tort Reform Association “has blessed us with that sobriquet” as a “judicial hellhole,” the judicial leadership’s priority is trying to make sure that the court can carry its caseload and meet fixed trial dates, he said.
It was of concern that there was a 40 percent increase in the number of filings when court leaders said in 2009 they would like to see more civil cases filed in Philadelphia, Herron said.
It also was of concern that 45 percent of asbestos cases and 88 percent of pharmaceutical cases were filed by out-of-state plaintiffs, Herron said.
“We’re not here for that. We’ve restructured the mass tort program for one reason and one reason only”: to identify if the court can carry its caseload and meet firm and fixed trial dates, Herron said.
With the court projecting a decrease in mass tort filings, Moss said she thinks the cases are being filed in federal court instead.
Among many other changes, Herron’s order took consolidation, reverse bifurcation and punitive damages off the table for mass tort cases. Herron retained consolidation for asbestos cases in order to deal with a case backlog. Punitives have been deferred for asbestos cases since the 1980s, and the court is currently accepting comments on whether punitive damages should still be deferred for pharmaceutical cases. Comments are being accepted until June 15, but Herron said they may extend the comment period.
In January 2009 and in the wake of proposed budget cuts to the court, Philadelphia Court of Common Pleas President Judge Pamela Pryor Dembe told a meeting of the PADC that she was looking at the civil side of the court to generate revenue for the court. She said she wanted to make the CLC and the Commerce Program for commercial litigation even more attractive to attorneys “so we’re taking business away from other courts,” The Lega l previously reported.
The invitation was accepted, and the number of filings shot up, Herron said. Herron also said that he knew Dembe had made the invitation out of concern for the court’s budget picture.
But “one of the concerns we have: Are we able to meet trial deadlines for Pennsylvania residents and Pennsylvania exposure cases?” Herron said.
The court can’t shift judges from criminal cases to civil cases, Herron said. The CLC has relied upon senior judges, but they are only paid for seven months a year and many take five months off the rest of the year, Herron said, so the court’s leadership plans to shift senior judges out of the CLC in favor of commissioned judges.
It’s significant to have 6,000 mass tort cases when there’s only eight or nine judges available to staff the CLC, Herron said.
New said that there was a backlog of 30,000 civil cases in Philadelphia in 1995 until the court implemented strict case management of its civil dockets. The bench and the bar must remember that history of the buildup of backlogs or Philadelphia would be doomed to repeat it, New said.
New said he is “extremely concerned, as a new crop of lawyers and new crop of judges come on board, they don’t remember what happened,” New said.
One sea change in the mass tort program, Moss said, is that the new protocols encourage the mediation of cases with five former state and federal judges.
“Obviously as a court we can’t make you mediate,” Moss said. “These protocols do not mandate mediation. They encourage mediation.”
Since mediations started, only one group of asbestos cases has been tried per month, which has freed up judges to deal with pharmaceutical cases and appeals from arbitrations, Moss said.
Another sea change in the mass tort program is that Philadelphia will no longer follow the state discovery rule, and the asbestos bar and the pharmaceutical bar have both written their own discovery rules in lieu of the discovery rule that Herron wrote, the administrative judge said.
The number of discovery disputes has decreased, Moss said.
New said that during his period of leadership overlap with Moss that he is learning from the most knowledgeable person in Philadelphia about mass torts, including the importance of working cooperatively with other jurisdictions with cases in the same type of litigation.
“I’m a huge believer in case management and judicial control of the calendar,” New said. “I’m going to maintain that case management principle.
“I recognize the difficulty under the ABA standards of [resolving] the pharmaceutical cases [to meet those standards]. At the same time the pharmaceutical cases only work and only resolve themselves with case management.”
Moss said she is part of a group of federal and state judges that will be making a proposal to the American Bar Association and the Conference of Chief Justices that a special standard for resolving complex cases should be established.
New also said that he will recuse himself from all cases involving the Brookman, Rosenberg, Brown & Sandler firm because of his relationships with members of that firm.