Update on Mass Tort Rules in Busy Court

We posted before about potentially important changes in the administrative rules for Philadelphia's busy mass tort system.  General Court Regulation No. 2012-01 represented the first general overhaul of the Complex Litigation Center’s practices in many years. The order was designed to revise and streamline the conduct of mass tort litigation in Philadelphia in a number of ways.  The order noted the pronounced upward trend in mass tort filings in this court, and the fact that the court’s disposition rate had not kept pace with filings; thus, a significant backlog developed. The order noted the impact of past policy which invited the filing of cases from other jurisdictions. A "dramatic increase in these filings" occurred after the court’s leadership invited claims from other jurisdictions.

In a recent report to the mass tort bar, Administrative Judge Herron of the Philadelphia Court of Common Pleas noted a significant percent reduction in mass tort filings from 2011 to 2012. There were 70% fewer filings in 2012 than 2011.  The overall inventory of mass tort cases declined by about 12%. Out-of-state filings declined slightly by percentage, and discovery disputes also declined, while settlement activity reportedly increased. The court thus indicated that the revised protocols would be continued.

While there are a number of factors that could impact filing rates, the decline in filings is significant, and it is hard to escape the conclusion that new protocols must have had some impact.  Judge Herron labeled the changes an "exceptional result" leading to a much more manageable number for the court.  Of the 2012 filings, 489 were pharmaceutical cases and 327 were asbestos, according to the court statistics. 

The court also disposed of more cases than new cases were filed, contributing to the decease in inventory. The new protocols encourage mediation of cases before former state and federal judges.



ATRA Releases "Judicial Hellholes" Report

The American Tort Reform Association has released its latest edition of the Judicial Hellholes report.  Of particular interest, ATRA ultimately chose to move formerly #1-ranked Philadelphia (home base of your humble blogger) off the list of Judicial Hellholes and into the top slot on the marginally less critical "Watch List."   ATRA wanted to acknowledge various efforts taken by the local court recently to step back from prior administrative steps that seemed designed to attract out of state mass tort plaintiffs.

ATRA now ranks California -- the entire state – as the new #1 Judicial Hellhole (it was #2 last year).  "Lingering troubles with an unbalanced playing field" earn West Virginia the second-place ranking; Madison County, Illinois earned the #3 ranking with filings of new asbestos lawsuits in the small, rural jurisdiction poised to set another record. And New York City’s mounting tort liability, and Baltimore because of its asbestos litigation, led to fourth- and fifth-place rankings for those jurisdictions.

This latest report also debuts a new feature scrutinizing some of the worst (and best) federal appellate decisions of the year, and they also added a special focus on the explosion of consumer protection litigation, particularly that which targets “Big Food.”



Busy Mass Tort Court Revises Punitive Damages Rule

The Philadelphia Court of Common Pleas, a busy mass tort jurisdiction, to say the least, has continued to tinker with its mass tort general rules, last week issuing General Court Regulation No. 2012-03, amending the protocols for cases in the mass tort program.

The biggest change was to allow punitive damages in some pharmaceutical cases subject to the approval of the Complex Litigation Center coordinating judges, Judge Sandra Mazer Moss and Judge Arnold L. New. The Court said it continues to review recommendations concerning
punitive damages and will likely further amend this rule. But until a final version is established, the following procedure was adopted: Punitive damage claims may be litigated in pharmaceutical mass tort cases provided that the Coordinating Judges, following appropriate motion practice by defense counsel at least 60 days in advance of trial, rule that there are sufficient requisite proofs to support the claim going to trial.

Philadelphia is of course the home base of MassTortDefense, and we have posted on the evolving rules before.  Other than a few outliers, the defense bar had generally supported the continuation of the deferral of punitive damages because this practice furthered the Court’s stated goal of meeting the American Bar Association’s suggested standards for the disposition of cases. Deferral of punitive damages claims in these cases can remove a major obstacle to settlement of mass tort litigation and open the way for the prompt resolution of the damage claims of many thousands of injured plaintiffs. 

Furthermore, when mass tort claims involve pharmaceutical and medical device defendants that market life-saving or life-enhancing products, additional policy considerations support deferral. Drugs and devices are subject to comprehensive regulation by the FDA. Absent extraordinary circumstances, a defendant that has complied with the FDA requirements should not be deemed to have engaged in punishable conduct with the potential for repeat sanctions.

We will keep an eye on this one for you.