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Philadelphia Court of Common Pleas & the Supreme Court of Pennsylvania

Last year’s #1 Judicial Hellhole, the Philadelphia Court of Common Pleas once again stole the show in 2020, and this year, the Supreme Court of Pennsylvania was intent on joining the city at the top of the list.

A pervasive liability-expanding approach has permeated through the state’s civil justice system. Plaintiffs from across the country continue to flock to the Court of Common Pleas because of its reputation for excessive verdicts and its “open door” policy to out-of-state plaintiffs. This policy clogs the courts, drains court resources, and drives businesses (and jobs) out of the state. The Supreme Court made the state even more appealing with a ruling that solidified the state’s low standard for expert witness testimony. It issued another ruling that openly defied the U.S. Supreme Court and will open the floodgates for filings from out-of-state plaintiffs. The high court also increased potential liability for asbestos defendants. No industry is safe as the courts look to expand liability for all defendants, including those in the essential health care industry.

MASS TORT LITIGATION IN THE COURT OF COMMON PLEAS

PELVIC MESH LITIGATION

In July 2020, Judge Kenneth Powell, a key driver behind Philadelphia securing the #1 spot in 2019, was once again in the news for biased behavior in another mass tort case pending in his court. The Court of Common Pleas Complex Litigation Center hosts litigation alleging that pelvic mesh implants, which are widely used to address stress urinary incontinence in women, are improperly designed despite FDA approval. Philadelphia juries have hammered Johnson & Johnson subsidiary Ethicon with more than $345 million in verdicts.

Judge Powell is overseeing pelvic mesh litigation against Ethicon, and it came to light that his mother also is suing J&J over injuries caused by another product. Ethicon requested that Judge Powell recuse himself, but he refused. Ethicon’s lawyer argued, “When you have something that is going to pull at you in ways that you do not even know, which has to be the case when you are adjudicating issues that have to do with the same thing that you personally are experiencing with somebody as close to you as your mother, the appearance itself requires that you step aside.”

Ethicon petitioned the Supreme Court of Pennsylvania to step in and remove the judge from the case, but it refused to do so. Ethicon faces more than 70 cases in Philadelphia, including one case where the trial court judge voided a jury’s finding that the company was not liable For a plaintiff’s injuries. This decision was upheld in April 2020 by an appellate court. As of Spring 2020, there had been eight verdicts for plaintiffs totaling $346 million in damages.

RISPERDAL LITIGATION

The Philadelphia Court of Common Pleas was propelled to the top of the 2019 Judicial Hellholes list by an outrageous $8 billion verdict against a Johnson & Johnson subsidiary, Janssen Pharmaceuticals, in a single-plaintiff Risperdal case. Judge Powell also oversaw this case and decreased the award to $6.8 million in early 2020. He found that the $8 billion award was largely disproportionate to other verdicts awarded to similarly situated plaintiffs, including a $680,000 compensatory damages award to a Maryland man.

Judge Powell engaged in questionable behavior throughout the trial leading up to the massive verdict. As Janssen stated in its motion for a new trial, “To a defendant who had sat through unbalanced ruling after unbalanced ruling … the message was clear: the jury had received and acted on the pro-plaintiff message that the judge had sent.” Janssen asked that the judge recuse himself from the requested retrial, a request that was later denied. The motion alleged classic Judicial Hellhole-type conduct: Lopsided rulings that did not allow the company to present key evidence about the benefits and risks of the drug, the label, or the company’s compliance with regulations, while allowing the plaintiffs’ lawyers to present a case designed to punish the company on behalf of “the children of the world.”

In September 2020, the Supreme Court of Pennsylvania refused to review a $70 million verdict awarded to a Tennessee plaintiff who chose to file his lawsuit in the Court of Common Pleas. Outsized verdicts like these reinforce the Philadelphia Court of Common Pleas’ “open door” policy and encourage plaintiffs’ lawyers across the country to flock to the court. Decisions such as these benefit out-of-state plaintiffs to the detriment of Pennsylvania citizens. The increased litigation clogs the courts and wastes taxpayer dollars.

MEDICAL LIABILITY ON THE RISE

In 2019, Pennsylvania paid out $30.79 per state resident in medical liability suits – a total of $394 million, placing it in the top five states with the highest payouts per capita and second only to New York for total payouts. By contrast, jurisdictions with the lowest payouts, such as California, Wisconsin, and Texas paid out between $4 and $6 per person. The number will most likely increase in 2020 due to last year’s Pennsylvania Supreme Court decision striking down the state’s seven-year time limit to bring medical liability claims.

A RETURN TO FORUM SHOPPING IN MEDICAL LIABILITY CASES?

Constraints that have prevented lawyers from picking the most plaintiff-friendly jurisdiction for filing medical liability actions are in jeopardy. This is yet another development that would contribute to a rise in medical liability payouts.

In late 2018, the Supreme Court of Pennsylvania’s Civil Procedure Rules Committee proposed easing the court’s 17-year-old restraints on medical liability lawsuits. At issue was a 2002 court rule that required plaintiffs to file medical malpractice lawsuits in the county where treatment occurred, not where a jury might view the claim most favorably. The purpose was to reduce forum shopping and create a more fair and balanced playing field. Forum shopping increases the number of meritless lawsuits and drives up doctors’ insurance costs. It leads to increased costs for patients and reduces patients’ ability to access doctors.

The Committee’s new recommendation would allow attorneys to file suit for medical malpractice in jurisdictions not only where medical treatment took place, but also where the healthcare provider operates a hospital or office or where a physician lives, among other options. Of course, the state’s personal injury bar, through the Pennsylvania Association for Justice, supports the change. Plaintiffs will flock to areas like Philadelphia, where juries are more willing to award higher verdicts in favor of plaintiffs.

In February 2020, the Legislative Budget and Finance Committee, a joint committee of the Pennsylvania General Assembly, released its highly anticipated report on the expected impact of the proposed rule change. The report was inconclusive and said the change may or may not worsen the situation. It said there was an insufficient amount of data to assess the effects of the rule; however, it did note that the insurance market for medical liability has been stable since the reform package was passed.

SUPREME COURT REINFORCES LOW STANDARD FOR EXPERT EVIDENCE

The Supreme Court of Pennsylvania re-established the state’s low standard for expert evidence in its highly- anticipated decision in Walsh v. BASF Corp. The Court refused to recognize the role of a trial court judge as a gatekeeper over the reliability of expert testimony. Pennsylvania is one of the last remaining states to use the weaker Frye standard when evaluating expert evidence, and this decision further restricts a judge’s ability to weed out “junk science” from Pennsylvania court rooms.

The issue arose in a wrongful death suit that attempted to connect a golf course groundskeeper’s development of Acute Myelogenous Leukemia (AML) to his exposure to pesticides. In Walsh v. BASF Corp., the Allegheny County Court of Common Pleas excluded the plaintiff’s causation experts’ testimony, finding they failed to offer a study tying AML to the chemicals at issue. Their proposed testimony, the trial court found, was not supported under the Frye standard, which requires that experts follow methods generally accepted by the scientific community. However, the Superior Court reversed that decision, ruling that the trial court went beyond examining the expert’s methods and improperly considered whether the studies supported the witnesses’ conclusions.

In upholding the superior court’s decision, the Supreme Court of Pennsylvania’s majority stated, “[T] rial courts may not question the merits of the expert’s scientific theories, techniques, or conclusions, and it is no part of the trial court’s function to assess whether it considers those theories, techniques and/or conclusions to be accurate or reliable based upon the available facts and data.” It continued, “The trial court may consider only whether the expert applied methodologies generally accepted in the relevant field, and may not go further to attempt to determine whether it agrees with the expert’s application of those methodologies or whether the expert’s conclusions have sufficient factual support. Those are questions for the jury to decide.”

As a result, in Pennsylvania courts, an expert may use an acceptable methodology to gather and analyze information but then provide a conclusion that is completely unsupported. The trial court cannot exclude the scientifically unsound testimony because the trial court may only analyze the validity of the methodology. In federal courts and most other states, trial court judges have a duty to carefully scrutinize the reliability of pro- posed expert testimony and not permit unsupported theories to be presented in court.

“[T]rial courts may not question the merits of the expert’s scientific theories, techniques, or conclusions, and it is no part of the trial court’s function to assess whether it considers those theories, techniques and/or conclusions to be accurate or reliable based upon the available facts and data.”

– Supreme Court of Pennsylvania

LOOSE APPLICATION OF VENUE LAWS LEADS TO FORUM SHOPPING

Judges in the Philadelphia Court of Common Pleas have made a habit of swinging open the courtroom doors to out-of-state plaintiffs. This policy benefits plaintiffs but negatively impacts Pennsylvanians. It clogs courts, drains court resources, and drives businesses out of the state leading to job loss.

At the crux of the venue issues is the state’s venue rule, which judges have interpreted very liberally. It permits venue in any “county where it [a corporate defendant] regularly conducts business,” which allows cases to be filed in Philadelphia even when there is little to no connection between Philadelphia and the incident in question.

In addition, Pennsylvania courts have been slow to apply the U.S. Supreme Court’s 2017 ruling instructing state courts to dismiss cases that have no connection to the state. In Bristol-Myers Squibb Co. v. Superior Court of California (BMS), the Court held that a state cannot exercise personal jurisdiction over a company that is not incorporated or headquartered in that state, when the plaintiffs do not live in the state, and events related to the alleged injury did not occur there.

In October, the Supreme Court of Pennsylvania openly defied the U.S. Supreme Court in Hammons v. Ethicon, which was the state high court’s first opportunity to apply the case to claims brought by out-of-state

plaintiffs in Pennsylvania courts. In this instance, an Indiana resident claimed that Ethicon, a New Jersey company, made a defective pelvic mesh device. The plaintiff did not receive medical treatment in Pennsylvania, and all conduct relevant to her claim took place in Indiana or New Jersey.

The only connection between the parties and Pennsylvania was that Ethicon contracted with a Pennsylvania company, Secant, to provide the mesh and the plaintiffs’ lawyer decided that Philadelphia would be a more favorable place to sue. Doing business with third parties, however, does not automatically subject an out-of-state business to personal jurisdiction where that company is located unless there is a specific connection between the forum and the injury. The U.S. Supreme Court in BMS held that the “bare” decision to contract with a California company to distribute the drug nationally did not provide a sufficient basis for juris- diction in California. As in BMS, Ethicon’s link to a Pennsylvania company should not have provided a sufficient basis for a Pennsylvania court to decide the case. Nevertheless, the lower courts allowed the Indiana resident’s claim against a New Jersey company to proceed in Pennsylvania courts, which led to a $12.8 million judgment in Philadelphia’s mass tort program.

ATRA filed a brief urging the Supreme Court of Pennsylvania to realign state law with U.S. Supreme Court precedent and end litigation tourism. The Court, however, went in the opposite direction. It ruled that Ethicon’s connection to Secant allowed Pennsylvania courts to assert jurisdiction over Ethicon. Contrary to BMS, the Supreme Court of Pennsylvania viewed it sufficient for a plaintiff to show a tie between the state and the “underlying controversy,” rather than the individual’s claim, for a state court to decide the case.

This ruling clearly undercuts the majority ruling in BMS which sought to restrict out-of-state plaintiffs from suing in plaintiff-friendly jurisdictions. Oddly, the Supreme Court of Pennsylvania appeared to follow Justice Sotomayor’s “forceful dissent” in BMS instead of the majority opinion. In fact, the Supreme Court of Pennsylvania invited review of its decision, stating that “absent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims.” Only the state’s chief justice refused to “join an opinion of a state court that does not abide by the [U.S. Supreme Court’s] latest pronouncement.”

CASES TO WATCH

A Pennsylvania Superior Court is considering whether 1 percent of national sales with no administrative locations in Philadelphia is enough to allow for venue when a man injured himself riding a Husqvarna lawn mower. The man lives in an adjacent county. After the three-judge panel of the court reversed a trial court’s decision finding the case should be heard in Bucks County, the full appellate court opted to consider the issue.

PHILADELPHIA REMAINS A MAGNET FOR ASBESTOS LITIGATION, SUPREME COURT CONTINUES TO HELP PLAINTIFFS

In a year when total asbestos lawsuit filings are down 13 percent, Philadelphia is one of the few jurisdictions that saw an increase in filings through the first two quarters of 2020. There has been an 11.7 percent rise in asbestos litigation in Philadelphia through July of 2020. The city remains in the Top 4 most popular jurisdictions to file lawsuits claiming injuries from exposure to asbestos.

In February 2020, the Supreme Court of Pennsylvania issued its long-awaited Roverano decision on the application of Pennsylvania’s Fair Share Act to strict liability asbestos actions. The court nullified the “Fair Share” concept in such cases by holding that allocation of liability shall be apportioned equally among responsible parties rather than by each party’s specific percentage share of fault. Using mental gymnastics, the court said it is impossible to apportion a strict liability offense based on fault because strict liability is not fault-based. The impact of course is that minor players may be required to pay damages that are disproportionate to their actual percentage share of fault – contrary to the basic premise of fair share liability. The court accepted the plaintiffs’ contention that illnesses caused by asbestos inhalation are “incapable of being apportioned in a rational manner because the individual contributions to the plaintiff’s total dose of asbestos are impossible to determine.” In dicta, the Roverano decision “also appears to point to a abrogation of the rule against ‘each and every fiber’ as a theory of causation.

In Roverano, the Court also ruled that the Fair Share Act permits bankrupt entities to be listed on the verdict sheet, but only if the trusts have been joined as third-party defendants or entered into a release with the plaintiff. Thus, a plaintiff can easily evade having most bankrupt entities appear on the verdict form by simply delaying the filing of any available asbestos bankruptcy trust claims until after trial. Unlike many other states, Pennsylvania has not enacted asbestos bankruptcy trust transparency legislation to require plaintiffs to file their asbestos trust claims before trial. The ruling reinforces the need for asbestos trust transparency legislation in Pennsylvania to make sure that the tort system is able to fully account for asbestos exposures related to bankrupt entities.