The state Supreme Court has reinstated a Montgomery County defense verdict in the cases of four test "bellwether" plaintiffs suing a handful of defendants for alleged property damage to their homes and illnesses after thousands of gallons of gasoline were released due to a gasoline leak at a local gas station.

The court on a 5-1 vote determined that the Superior Court incorrectly reversed the trial court and improperly speculated about what could have happened had the Montgomery County Court of Common Pleas not severed off the bellwether plaintiffs, ordered a reverse-bifurcated trial and barred the mentioning of any of the 41 plaintiffs who were not part of the trial.

The majority, led by Justice Seamus McCaffery, effectively said the trial court did not abuse its discretion in ordering the test cases to proceed first.

McCaffery wrote that the Superior Court had misapplied Pennsylvania Rule of Civil Procedure 213(b), on severance, when the 2-1 court weighed the interests of severance against the "’danger’" of a jury seeing only a small part of the case. In total, 45 individuals had filed complaints against six initial defendants. Some of the excluded plaintiffs following the bellwether order were the co-dwelling parents and children of the test litigants.

"Rule 213 does not provide for ‘weighing’ the factors suggested by the Superior Court, and the Superior Court cites no authority for the proposition it advances," McCaffery said. "Rule 213 gives the trial court discretion to sever ‘in the furtherance of convenience or to avoid prejudice.’ That is what the trial court did here, providing detailed reasons for its actions."

In a 21-page opinion in Ball v. Bayard Pump & Tank, McCaffery highlighted the three ways in which the Superior Court majority, in an October 2009 memorandum opinion, held the plaintiffs were prejudiced by the common pleas court’s pretrial orders.

McCaffery rejected the Superior Court’s reasoning in three main respects.

First, the majority of the three-judge Superior Court panel said the plaintiffs in mass tort cases could be prejudiced if the number presented at trial is "’so limited that their credibility is called into question,’" according to McCaffery.

Addressing what he called the plaintiffs’ "fallback position" that they should have been able to present evidence of their live-in relatives’ claims (a fallback from their overall claim that every plaintiff should have been presented to the jury), McCaffery said that very argument "implicitly underscores the deference that must be accorded" to the trial court.

"How, for example, would evidence relating to other plaintiffs’ claims have rendered the existence of facts relating to their own claims more probable?" McCaffery said. "How would evidence that other people were asserting claims have increased the probability that the jury would have determined, based on the evidence, that gasoline had entered the bellwether plaintiffs’ homes?"

Second, McCaffery said, the Superior Court incorrectly opined the plaintiffs had been prejudiced because the difference between the "’scale of disaster’" and the number of plaintiffs may have led the jury to make unjustified inferences.

The justices said the intermediate appeals court failed to offer a concrete reason to reject the trial court’s decision.

The Superior Court panel majority, McCaffery said, "furnishes no indication as to how this could have been the case."

And third, McCaffery took issue with the Superior Court majority’s conclusion that isolating the test cases may have trivialized plaintiffs’ claims and caused the jury to perceive them as hypersensitive and unsympathetic.

"Apart from there being no legal requirement or entitlement for a plaintiff to have a jury consider him or her to be sympathetic, the Superior Court’s assumption that somehow the jury failed to sympathize with the bellwether plaintiffs is based on speculation; the majority cites no evidence of record to support its conclusion," McCaffery said.

He added it was equally possible, if not probable, that the jury sympathized with the trial plaintiffs but determined based on expert testimony that gasoline never reached or entered their homes.

McCaffery lastly disputed the Superior Court’s acceptance of the plaintiffs’ argument that the bellwether trial did not promote efficiency or save time, pointing to the fact that two of the eight total defendants settled with all plaintiffs before trial.

The settlements would also lead to less confusion when the non-bellwether plaintiffs’ trials reach the liability phase, which, as part of the reverse-bifurcation order, would come second. That is, McCaffery acknowledged, if those phases would be necessary under the trial court’s order.

According to McCaffery, the trial court listed five reasons for the reverse-bifurcated bellwether strategy: avoiding prejudice through lesser numbers of witnesses, promoting efficiency and judicial economy, keeping the parties’ expenses lower, increasing the prospect of settlements, and making things more organized in being presented to the jury.

In the trial court’s order, as it was presented in McCaffery’s opinion, the court ordered several issues to be tried in the damages phase, including whether gasoline reached the plaintiffs’ property, whether it entered the property, whether exposure to the gas caused the injuries claimed, and the plaintiffs’ damages.

The judge then said the parties would have 90 days to negotiate a settlement after a verdict was reached. If no settlement was reached, the order said, the original four cases would proceed to trial on the issue of liability before a second jury.

McCaffery left out a fourth line of the pretrial order, and the order’s fifth and final directive said remaining plaintiffs would try the issues of exposure, causation and damages before a fourth jury.

The court also ordered the preclusion of "’any mention, testimony and/or other evidence of the claims of non-trial plaintiffs or nonparties in this litigation, outside of mention of the same as part of the recitation of the "history" of the case,’" according to McCaffery.

The bellwether plaintiffs proceeded to trial for the damages phase, and the jury found that gasoline from the leak had not entered the homes of three plaintiffs and that it had not even reached the home of a fourth.

None of the plaintiffs suffered damages attributable to the leak, the jury found, according to McCaffery. The judge denied a motion for a new trial and the plaintiffs — all 45 of them — appealed.

The gas leak was expansive, McCaffery said, as thousands of gallons of gasoline moved underground to surrounding neighborhoods. The plaintiffs complained gas had traveled underground and, through soil and groundwater, had reached their homes, causing property damage and illness. The leak also caused an explosion in the springhouse of a realty office across the street from the gas station at which it originated.

The six original defendants were Bayard Pump & Tank Co., Gulf Oil, E.O. Habhegger Co., Titeflex Corp., Veeder-Root Co., and Wagner and T.F.W. Those original defendants added Marley Pump Co. and Containment Technologies Corp., according to the opinion.

There are 17 lawyers of record docketed in the case. Calls requesting comment were made Friday to an attorney representing each party, and most did not return messages. None of the attorneys reached chose to comment for the record.

In a lone dissent, Justice Thomas G. Saylor highlighted the fact that it was not until eight years after all the plaintiffs filed their initial complaint, and apparently after trial was scheduled, that the defendants proposed the "’trial-management plans.’"

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 25-page opinion in Ball v. Bayard Pump & Tank, PICS No. 13-1214, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •