The Philadelphia Court of Common Pleas had 70 percent fewer mass-tort case filings in 2012 than in 2011, but out-of-state plaintiffs continued to predominate.
The final number of filings in 2012 was even lower than the court leadership had projected. The civil court leadership had projected in the fall that there would be 60 percent fewer mass-tort cases.
During a joint interview with Judge Arnold L. New, supervising judge of the trial division’s civil section and coordinating judge of the Complex Litigation Center, Judge John W. Herron, administrative judge of the trial division, said since he wrote new protocols for the mass torts program “to add structure and predictability to the mass tort program and to begin to manage what we viewed then as a crisis in the number of filings, we have had an exceptional result where we have now greatly reduced the filings to a much more manageable number … Judge New and I have discussed this on a regular and frequent basis during the year and we both feel this is a remarkable turnaround which restores our confidence in our ability to manage the filings.”
The number of filings spiked up to 2,690 in 2011, an increase that correlated with President Judge Pamela Pryor Dembe making remarks in the spring of 2011 that more mass tort cases could help the court during a budget crisis as well as help local attorneys and their books of business.
There were 550 filings in 2008, 1,701 filings in 2009, 2,382 filings in 2010, 2,690 filings in 2011 and 816 filings in 2012, according to the First Judicial District’s statistics.
Of the 816 filings in 2012, 489 were pharmaceutical cases and 327 were asbestos cases, according to court statistics.
Herron attributed the drop-off in filings to the fact that by exercising his “bully pulpit, the message has gotten out we are not interested in having all mass torts in America filing in Philadelphia” and because “I’m a tougher gatekeeper” in approving cases for mass tort programs. Herron said he denied approval for Zoloft and also decertified nursing home cases and Accutane as mass tort programs.
There was no bright-line on how many cases are necessary to have a mass torts program, Herron said. There were 20 filings in the Accutane program.
The percentage of non-Pennsylvania plaintiffs was down only slightly in 2012. In 2011, 88 percent of pharmaceutical cases involved out-of-state plaintiffs, but, in 2012, 86 percent of pharmaceutical cases involved out-of-state plaintiffs. In 2011, 47 percent of asbestos cases involved out-of-state plaintiffs, but, in 2012, 44 percent of asbestos cases involved out-of-state plaintiffs.
The court also disposed of more cases than new cases were filed. The overall inventory decreased by 14 percent, according to court statistics.
New said one of the great pluses of the protocols are simply that they are written and out-of-town lawyers can see what is going on. When Philadelphia was tagged as a “judicial hellhole” by a conservative, defense-oriented group in favor of changing tort law, New said that some of that was because the functioning of the mass torts program within the Complex Litigation Center was not recorded.
“The story of the protocols is adding structure to the mass tort programs where both plaintiffs and defendants feel they have a court that is interested in their perspective and responsive to their concerns and the ability to address those concerns with rules that are a product of a consensus of both sides,” Herron said.
An example of those sorts of rules are discovery rules specifically tailored to the asbestos program and to the pharmaceutical programs.
According to New, the new discovery rules were developed after the “plaintiffs bar was particularly upset over” Herron’s initial rule, which said that all discovery had to occur in Philadelphia unless the defense agreed.
The result is a very “balanced protocol,” New said.
There is “nothing in there that leans plaintiff or leans defendant. They are just to set up the way things are going to go forward,” New said.
Other changes under Herron’s protocols include New addressing in advance of trials whether punitive damages will go to juries.
The new protocols encourage the mediation of cases with five former state and federal judges.
The judges said they would be interested in learning from the mediators if parties are not participating in the mediations with good faith.
New said he has not had to implement any sanctions, but that, if he did, the protocol would give him the option to list five cases instead of three to be tried at one time, and that he could set aside cases picked by the parties and put in other cases.
In 2012, 51 percent of major jury civil verdicts were for defendants, and 49 percent of verdicts were for plaintiffs.
“An urban jury can step to the plate and can be fair and that’s demonstrated with the major jury verdicts,” Herron said.