Plaintiffs’ attorneys throughout Pennsylvania and from across the country have long been drawn to Philadelphia courts because they believe their clients will receive more favorable treatment there than at home in front of their local judges and juries. And since the percentage of out-of-town lawsuits has grown considerably since prominent Philadelphia judges invited such lawsuits three years ago, the American Tort Reform Association’s annual “Judicial Hellholes®” report has been justified in ranking the jurisdiction as the worst in the nation for the past two years.
But deeply concerned about Philadelphia’s increasingly negative and ultimately costly reputation for being plaintiff-friendly, judicial leaders there have acted to move their courts back toward greater fairness and the evenhanded dispensation of justice.
Upon considering comments and recommendations about the court’s Complex Litigation Center (CLC) from attorneys and others, Court of Common Pleas Administrative Judge John W. Herron on February 15 signed off on General Court Regulation No. 2012-01, which, among many other positive things, will eliminate reverse bifurcation and limit consolidation in all mass tort cases, including asbestos cases.
In limiting pro hoc vice counsel to two trials per year, Judge Herron’s order also critically acknowledges the “dramatic” explosion of the CLC’s asbestos docket that began in 2009, when “this Court’s leadership invited claims from other jurisdictions.”
Despite distracting denials and protests that came from some Philadelphia judges, plaintiffs’ lawyers and self-described consumer advocates after the jurisdiction’s fairness problems were documented in two consecutive Judicial Hellholes reports, ATRA is encouraged by serious-minded jurists who took the criticisms as they were constructively intended. Their desire to render justice fairly for all parties with matters legitimately before them in Philadelphia courts has driven creation of the new protocols detailed in Judge Herron’s 15-point order, which may go a long way in mitigating the CLC’s troubling reputation.
ATRA applauds the willingness of Philadelphia’s judiciary to listen to complaints and challenge the status quo, and it may consider an unprecedented mid-year removal of Philadelphia from its list of Judicial Hellholes if both the letter and spirit of Judge Herron’s order are lived up to in coming months. That said, it’s important not to forget the many problems that recently prompted the Wall Street Journal to refer to the jurisdiction as the “City of Unbrotherly Torts.”
Pennsylvania law provides significant flexibility to plaintiffs’ lawyers as to where to file their cases. For example, Pennsylvania law permits claims against businesses anywhere in the state that they conduct more than incidental or isolated business activity. In a 2009 ruling, a Pennsylvania court candidly acknowledged that “Pennsylvania does not forbid ‘forum shopping’ per se – to the contrary, our venue rules give plaintiffs various choices of different possible venues, and plaintiffs are generally free to ‘shop’ among those forums and choose the one they prefer.” While courts can transfer or dismiss cases “for the convenience of parties and witnesses,” Pennsylvania judges place a heavy burden on the defendant to present detailed information proving that the plaintiff’s choice of court is “oppressive or vexatious.” Such requests are often denied, even when there is little or no connection between the lawsuit and the county in which it is filed.
Philadelphia is clearly the plaintiffs’ choice – it has nearly twice the litigation per capita of other Pennsylvania counties, according to court statistics and census data. While there are a handful of other counties that have a disproportionately high number of lawsuits relative to their populations, forum shopping in Pennsylvania appears to be primarily, if not exclusively, a Philadelphia phenomenon.
Plaintiffs’ lawyers in Philadelphia courts act differently than those in other areas of Pennsylvania and in other states. According to a recent study, “Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Examination,” published by the International Center for Law & Economics (ICLE), Philadelphia courts host an especially large number of cases and have a larger docket than expected. Furthermore, the report indicates, Philadelphia plaintiffs are less likely to settle their cases before trial than are non-Philadelphia plaintiffs, and they are disproportionately likely to prefer jury trials. These findings are consistent with a conclusion that Philadelphia courts demonstrate a marked and meaningful preference for plaintiffs.
Additional data from an appendix to the ICLE study published February 6 show that in 67.2 percent of CLC personal injury cases, the plaintiffs neither reside in Pennsylvania nor claim to have been injured there. With specific respect to asbestos cases, for which Philadelphia has become particularly notorious, that figure jumps to 84 percent. Common sense suggests plaintiffs would not go to such expense if the chances of winning their cases in Philadelphia were not significantly better than in their home jurisdictions.
As highlighted in past Judicial Hellholes reports and reflected in Judge Herron’s reform order, Philadelphia’s CLC also has been a major factor in the flow of cases to Philadelphia. Touted by some as a “national model for mass torts litigation,” the CLC handles mass tort litigation, such as pharmaceutical and asbestos cases. A rigid mandate to bring mass tort cases to trial within two years of filing may have contributed to the attractiveness of the CLC to plaintiffs from across the country. CLC Coordinating Judge Sandra Mazer Moss has said that nonresident plaintiffs file in Philadelphia “because they know they can get a trial in 18 months to two years.” Philadelphia Common Pleas Judge William J. Manfredi, supervising judge of the civil section of the trial division, has similarly observed that “[m]ass tort cases are being filed here because the parties are interested in coming to Philadelphia once again. It comes back to our case management system.”
A sophisticated litigation center like the CLC provides some efficiencies and advantages. The problem is that one man’s efficiency can be another’s structural unfairness. Those who are sued must have adequate time to fully assess and defend numerous claims, otherwise undue pressure is created to settle regardless of the merits. Efficiency is important, but fairness must be the top priority, and Judge Herron’s reform order appears to recognize this.
Marketing of the CLC by the Philadelphia judiciary has contributed to the concern of those who might be named as defendants. Soon after Judge Moss replaced Judge Allan Tereshko as coordinating judge of the mass tort program in 2009, she declared that “a new day” had arrived at the CLC. This new day was reflected by Common Pleas President Judge Pamela Pryor Dembe, who undertook a “public campaign to lay out the welcome mat for increased mass torts filings.” Judge Dembe had expressed a desire to make the CLC even more attractive to attorneys, “so we’re taking away business from other courts.” Some may question whether the goal of fairness can be paramount in such an environment.
A growing number of states have enacted comprehensive tort reform legislation. The litigation environment in Texas and Mississippi, formerly homes to multiple Judicial Hellholes, was transformed by such legislation. More recently a number of additional states, including Oklahoma, Tennessee and Wisconsin, have adopted significant reform packages designed to attract employers, spur job creation and economic growth, and boost tax revenues.
Pennsylvania, on the other hand, has taken little action in recent years to address excesses in its civil justice system, with two notable exceptions – adoption of medical liability reforms in 2002 and “fair share” liability last year, as discussed below.
Meanwhile, plaintiffs’ lawyers from other states may be lured to Pennsylvania and decide to file in Philadelphia, due to the state’s generally more plaintiff-friendly environment. Pennsylvania is one of only a handful of states that continues to follow an insufficiently rigorous standard for admissibility of expert testimony, which federal courts and most state courts have abandoned. It also is in the minority of states that have not placed any limits on damages for subjective pain and suffering applicable either in medical liability cases or all personal injury cases. Nor has Pennsylvania joined the majority of states that have placed statutory limits on the size of awards for punitive damages.
Philadelphia forum shopping and the impacts of lawsuit abuse initially surfaced in the context of medical malpractice litigation, which significantly contributed to the city’s development of a Judicial Hellholes reputation. In 2002 nearly half of all medical liability claims filed in Pennsylvania landed in Philadelphia’s Court of Common Pleas. Pre-reform data indicated that plaintiffs in Philadelphia were more than twice as likely to win jury trials relative to the national average, and over half of the resulting awards were for $1 million or more. The number of such awards in Philadelphia in 2001 rivaled those in the entire state of California.
In response to the adverse impact of tort litigation on access to affordable health care, the General Assembly and the Pennsylvania Supreme Court took action, addressing venue among other issues. The Medical Care Availability and Reduction of Error Act (MCARE) of 2002 directed plaintiffs to file medical liability claims “only in a county in which the cause of action arose.” Soon thereafter, the Pennsylvania Supreme Court incorporated this provision into the Rules of Civil Procedure. The year after the venue reform went into effect, medical liability claims filed in Philadelphia plummeted from 1,365 to 577, a decline of 58 percent. Yet, as Pennsylvania Supreme Court Chief Justice Ronald D. Castille has observed, “justice for our citizens is still being delivered where patients are truly injured by medical mistakes.”
Pennsylvania lawmakers deserve credit for again nudging the Keystone State toward the mainstream last year by limiting application of joint and several liability. And enactment of the Fair Share Act may prove to be a spark for even more meaningful civil justice reforms as a venue reform bill is now moving in the General Assembly. The venue bill would, consistent with medical liability claims, require plaintiffs to file all civil cases in the county where their claims arise.
Climbing out of a judicial hellhole isn’t easy, but it has been done by other, ultimately reform-minded jurisdictions. Hoping to see practical justification for removing Philadelphia from its list of Judicial Hellholes this year, ATRA encourages Keystone State policymakers to broaden their reform efforts and thereby stand up for taxpayers, consumers and jobseekers.