New rules make Philadelphia court less attractive to out-of-state lawyers

Posted: June 17, 2012

Philadelphia is no longer quite the draw it was only a few months ago for out-of-town lawyers filing asbestos and pharmaceutical lawsuits.

Court administrators say that filings have dropped precipitously since the enactment of rules aimed at reducing the growing case backlog. In particular, the rules target filings by out-of-state lawyers alleging harm from prescription medications and asbestos.

Through the end of this year, court officials project about 1,068 filings involving asbestos and pharmaceutical claims, a 60 percent decline from 2011. Last year, out-of-state plaintiffs accounted for 83 percent of the asbestos and pharmaceutical lawsuits handled by the court's Complex Litigation Center.

"There are many other fine courts in this country," said John Herron, administrative judge for the trial division of Philadelphia Common Pleas Court, suggesting that out-of-state lawyers go elsewhere.

In recent years, the Philadelphia court system has been a lightning rod for criticism by corporate defense lawyers and business groups, who argue that it is tilted toward plaintiffs. And the courts here do have a reputation for larger jury awards than in some other jurisdictions. Plaintiffs' attorneys typically prefer to file in the city rather than in the suburbs for that reason. They also argue that their cases move along more quickly in Philadelphia.

Herron, asserting that the evidence of a tilt one way or another was unclear, said his objective was not to weigh in on that dispute, but rather to address a growing backlog of cases in the Complex Litigation Center that threatened the ability of litigants to resolve disputes in a timely manner.

"Based on five months' experience, we see a substantial reduction in the out-of-state filings, and we are very pleased with the projected numbers," he said.

The Complex Litigation Center was formed in the early 1990s to cope with the explosive growth of asbestos cases, which, because of the highly technical nature of the evidence and often uncertain legal precepts, began to require ever greater amounts of time from trial judges and court administrators. The center later came to handle thousands of lawsuits against pharmaceutical makers by people claiming they were harmed by prescription drugs, among other complex matters.

Its founders, including Common Pleas Court Judge Sandra Mazer Moss, set procedural deadlines aimed at accelerating the pace of litigation. And judges were assigned to the center on a long-term basis so they could become expert on the abstruse legal principles and science, in an effort to improve efficiency.

The court became a model for judicial systems in other cities and states. It also apparently appealed to plaintiffs' lawyers. Over the last five years, the caseload, or what the court calls "inventory," of asbestos and pharmaceutical cases grew from 2,542 active lawsuits to 6,174, a 143 percent increase.

That growth accelerated markedly in 2009, when Common Pleas Court President Pamela Pryor Dembe suggested that the court should encourage filings by out-of-town lawyers, "so we are taking business away from other courts."

On Friday, Herron said the new rules are aimed, in part, at countering that notion.

"We do not want to emphasize filings as a way to bolster the budget of the court," he said.

Herron issued the first set of new rules in February. He deferred action on punitive-damages claims, often the largest portion of a jury award, until the court dealt with the backlog. He also ordered that all discovery be conducted in Philadelphia.

In addition, the new rules called for consolidating asbestos cases in groups of eight to 10 involving identical medical issues. In each group, only three cases would go to trial, with the others settling. If those cases failed to settle, the group would be dissolved and re-listed for trial.

On Monday, Herron plans to release an amended order that reinstitutes punitive-damages proceedings. The new protocol instructs judges to determine 60 days in advance of trial whether a commercial defendant's conduct was so egregious that it might be subject to punitive damages if the case were to go to trial, an effort to accelerate the pace of settlements. He also is expected to change the protocol to permit discovery outside Philadelphia in asbestos cases, provided the side seeking discovery arranges for video or telephone conferencing.

Herron's amended order comes partly in response to pushback from city trial lawyers, who wrote after publication of the first rules that the deferral of punitive damages is unconstitutional.

Laura Feldman, president of the Philadelphia Trial Lawyers Association, said in a letter to Herron that the protocol described the mass tort backlog in an "unduly negative manner," and said that regulations applying only to out-of-state plaintiffs may also be unconstitutional.

Contact staff writer Chris Mondics at 215 854 5957 or

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