WSJ Clueless About Philadelphia Mass Torts Lawsuits
Just in time for Mesothelioma Awareness Day (which is tomorrow), yesterday the Wall Street Journal recycled the same canned attack on the Philadelphia Complex Litigation Center that the Chamber of Commerce and other special interests have been pushing for some time. (See here and here for more about the attacks on Philadelphia’s courts.)
Ashby Jones at the Wall Street Journal retreads over Judge Pamela Dembe’s remarks about out-of-state plaintiffs from early 2009, taking the Chamber of Commerce’s bait hook, line and sinker:
When the Philadelphia court system faced budget cuts in early 2009, an influential judge there invited plaintiffs to bring the court their cases — and their filing fees.
The plan backfired.
After Philadelphia Court of Common Pleas Judge Pamela Pryor Dembe told defense lawyers she wanted to “take business away from other courts” by making Philadelphia’s more attractive to lawyers, “mass-tort” filings—made up mostly of asbestos and pharmaceutical claims—skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage.
“Buried in lawsuits and scrambling to repair the damage” of 2,700 filings sounds just terrible. As the WSJ ominously notes, “Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month.”
As Churchill said, “truth is so precious that she should always be attended by a bodyguard of lies.” Let’s unpack this supposed “surge” in filings, and figure out what’s causing the Philadelphia Complex Litigation Center to be “buried in” a “blacklog” of 6,100 lawsuits.
First, let’s look at what those 6,100 lawsuits are. You can see the numbers yourself by going to the “case list” under each type of mass tort on the CLC’s website. 2,294 of the pending cases, or more than one-third of the total, are Reglan cases. 1,843 of the pending cases, nearly one-third of the total, are Yaz / Yasmin / Ocella cases.
Judge Dembe’s remarks about making the Philadelphia mass torts center so efficient that parties preferred it over other courts (a laudable goal; notice how Judge Dembe’s remarks were made to defense lawyers) were in March 2009. Check those case lists again and you can see when the lawsuits started piling up. The Yaz / Yasmin lawsuits against Bayer in Philadelphia state court began in July 2009, but fewer than twenty had been filed until October 2009. That uptick had nothing to do with Judge Dembe: it had to do with the August 14, 2009 issue of the British Medical Journal, which published two studies (here and here) showing Yaz and Yasmin had twice the blood clotting risk of comparable hormonal contraceptives. Similarly, only two Reglan cases were filed against Wyeth and Teva before October 2009, when they started coming in quickly — because in February 2009, the FDA had mandated a “black box” warning on Reglan for the possibility of tardive dyskinesia.
Following so far? Reglan and Yaz — cases primarily against Bayer USA and Wyeth, both Pennsylvania companies (Wyeth is literally in Philadelphia) — together account for just over two-thirds of the overall Philadelphia mass torts cases. Both of these mass torts were prompted not by anything Judge Dembe said, but by the public revelation that the drugs were far more dangerous that the pharmaceutical companies had said.
Second, let’s see why the Philadelphia Complex Litigation Center isn’t resolving those cases more quickly. For Yaz, There’s a federal multi-district order for that case, and the District Court overseeing the MDL has stayed them since last December (orders here and here) while the parties mediate the claims. The Philadelphia Complex Litigation Center has done nothing more than go along with the MDL, which is exactly what they should be doing; the side effect is that it has left them unable to clear the Yaz docket at the speed it normally would.
For the Reglan cases, in mid-2011 the United States Supreme Court decided PLIVA v. Mensing (which I wrote about here and here), and since then the cases have been stalled by the defendants’ various filings and appeals in Philadelphia and Pennsylvania courts. Those cases are all stayed at the request of the defendants.
Third, is there really a problem here? Two-thirds of the Philadelphia mass torts cases involve just two drugs, and both of those cases were slowed for reasons outside of the Philadelphia Court of Common Pleas’ control. What should they do, launch those cases into trial? Trust me, that would thrill plaintiffs’ lawyers like me — it’s the defendants who are asking to slow everything down, apparently just so they can complain about the very same “backlog” they requested.
Want a historical comparison? Right now the Court is supposedly “buried” under 6,100 mass torts cases, two-thirds of which are two drugs with litigation delayed for other reasons. Consider this data point: at the end of 2004, there were 15,123 mass tort cases, including over 12,000 Fen-Phen diet drug cases. Four years later, there were only 2,966 cases. Philadelphia’s mass torts programs can move cases when they’re ripe to be moved.
The complaints about Philadelphia mass torts are all just a tempest in a teapot.
But! I suppose there’s always a “but.” And here the “but” that tort reformers and others would likely raise would be the asbestos cases. There are 736 of them pending, and as Judge Herron noted in his February 2012 order altering some of the mass torts procedures, over the past five years, filings have been rising modestly faster than the cases have been resolved, and only 42% of the the cases are resolved within two years of filing and 20% of cases remain pending after three years. That is indeed behind the general American Bar Association standard of resolving civil cases — everything from a fender bender to lung cancer caused by asbestos exposure at two dozen different employers — in two years.
I don’t consider this to be a huge problem worthy of the Wall Street Journal launching into fits of hyperbole — and it’s telling that the complaints here come from defendants, who are the ones who delay these cases — but, more to the point, this sort of modest growth in asbestos lawsuits is to be expected: as I discussed before, the number of mesothelioma diagnoses was predicted by epidemiologists to rise through this year, which means case filings would be expected to rise modestly over the next two years (because there is typically some time between diagnosis and filing).
But even beyond that normal statistical rise, I think the problem is overstated. Again, just peruse the Asbestos case listings and click on some random cases. On the surface, there looks like a number of lead defendants with out-of-state headquarters like John Crane (Illinois), Honeywell International (New Jersey), Georgia-Pacific (New Jersey), and Owens-Illinois (Ohio), but whenever you see those, you see a plaintiff who resides in Pennsylvania. Given the scope of the problem — as linked above, there’s an additional 60,000 expected mesothelioma diagnoses over the next forty years — the overall numbers of filings are low.
All in all, the Philadelphia courts systems are doing a tremendous job. They should be applauded, not condemned, for ensuring that justice is not delayed for thousands of people literally given cancer and strokes by corporate negligence and greed.