Out-of-state suits on asbestos and pharma products have slowed

Posted: February 09, 2013

The flood of out-of-state lawsuits filed in Philadelphia over alleged asbestos injuries and defective pharmaceutical products has slowed dramatically after a series of procedural changes to reduce the case backlog of the city's Court of Common Pleas.

Asbestos and pharmaceutical filings, called mass torts, declined from a high of 2,690 in 2011 to 816 in 2012, according to Judge John Herron, administrative head of the court's trial division.

"From the court's perspective it is an excellent reversal of the trend," Herron said. "There were uncontrollable filings and we were very pleased to see that we could bring the flow down."

The changes were set in motion early last year by Herron and other court leaders out of concern that the city had attracted an avalanche of filings by out-of-state lawyers. The city's reputation for high jury awards and lax oversight in some instances proved a powerful lure, Herron said.

As a result, he deferred action on the awarding of punitive damages in asbestos cases and, for a short time, ordered that all discovery take place in Philadelphia.

The discovery restriction was modified, but the court retained the rule on punitive damages and other changes, including a requirement that asbestos cases be consolidated in groups of eight to 10 with identical medical issues.

In each group, only three are permitted to go to trial, with the others settling. If those nontrial cases fail to settle, the group is dissolved and relisted for future trials.

The rule changes apply to the Complex Litigation Center, a division of the court established in the early 1990s to handle the then-growing number of asbestos cases.

The idea was that a separate court division with its own full-time judges was needed to handle cases that involved complex science and uncertain legal precepts.

The center later came to handle pharmaceutical cases as well, and gained a national reputation for legal sophistication and efficient processing of a huge volume of highly technical cases.

The legal basis for many of these filings is the fact that many pharmaceutical companies are based in the region or have operations here. There is a long history of asbestos litigation here that traces back to the Philadelphia Naval Shipyard, where asbestos was used in shipbuilding.

But there has been a backlash as defense lawyers alleged that the system was tilted toward big awards for defendants.

The American Tort Reform Association (ATRA), an advocacy group representing the National Federation of Independent Business, the American Medical Association, and other interests, for two years running branded Philadelphia the nation's number-one "judicial hellhole," asserting that its plaintiff-friendly climate resulted in over-sized jury awards and settlements.

Philadelphia juries have the reputation among plaintiffs' lawyers for giving larger awards than juries outside the city, although ATRA has since removed its Philadelphia designation.

Herron contended the changes were not intended to favor one side or the other in the debate over the fairness of justice in Philadelphia, but simply to reduce a substantial backlog of cases. Herron said Philadelphia juries and judges should be primarily adjudicating the cases of Pennsylvania plaintiffs, not plaintiffs from out of state.

"We want our jurors hearing Pennsylvania cases, and not deciding the case of a Utah plaintiff," Herron said, "and that is what has been happening."

Contact Chris Mondics

at 215-854-5957 or cmondics@phillynews.

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