[UPDATE II, February 7, 2012: Mike Tremoglie at Legal News Line (which is owned by the U.S. Chamber of Commerce’s Institute for Legal Reform) has published two follow-up stories in which I was quoted, one about the issue in general, and one about follow-up data the ICLE published on the location of plaintiffs in Philadelphia mass torts cases.]
[UPDATE, December 3, 2011: More than a month after my post, the Wall Street Journal chimed in with an editorial parroting the “study” I discussed below. The WSJ, too, noted that, in medical malpractice trials, “Philadelphia juries find in favor of plaintiffs more often than non-Philly juries” without pointing out that four out of five medical malpractice plaintiffs in Philadelphia lose at trial. That’s compared to nine out of ten across Pennsylvania. So, yes, a plaintiff is nearly one-quarter more likely to win in Philadelphia, but they’re still most likely going to lose.
Truth is, across Pennsylvania and across the United States the deck is stacked against injured plaintiffs. In Philadelphia, the problem is not as pronounced, but it is still present. We shouldn’t be trying to get cases out of Philadelphia — we should be trying to make all of the counties less unfair to injured plaintiffs.]
Another day, another claim by some corporate shill tort reform group that Philadelphia’s courts are terrible because they move cases along in a timely fashion. This time, via Overlawyered, I see a new study by some corporate shill organization (this time it’s “the International Center for Law and Economics,” or ICLE) that claims it has found “systematic biases in Philadelphia courts,” but which really comes down to concluding:
Philadelphia courts host an especially large number of cases, Philadelphia courts have a larger docket than expected, Philadelphia plaintiffs are less likely to settle than other non-Philadelphia Pennsylvania plaintiffs, and Philadelphia plaintiffs are disproportionately likely to prefer jury trials.
The first two conclusions about docket size are underwhelming, which makes it even more disappointing that they’re also meaningless. As the study itself admits then ignores, “That a large city would attract more than its proportional share of the state’s litigation is not surprising in its own right. There are several reasons to expect higher litigation rates in more densely populated cities.” Indeed.
Philadelphia has a faster docket than the surrounding counties and has coordinated programs for mass torts. When a plaintiff’s lawyer is considering filing dozens or hundreds of lawsuits against GlaxoSmithKline, or AstraZeneca, or Teva Pharmaceuticals, or Siemens Medical, or McNeil Laboratories, or Merck, or Wyeth — all of which have a significant presence in or around Philadelphia — the obvious choice is to file in the quicker venue with more experience and more resources to handle the cases. Philadelphia’s Complex Litigation Center (CLC) has over 2,200 cases relating to Reglan alone. Throw in asbestos, denture cream, and all the rest of the mass torts and you’re talking 10, 20 or 30 thousand cases depending on recent recalls and FDA warnings and the like.
Chester County’s Court of Common Pleas has 14 judges, including those in senior status. Philadelphia has 90 active judges. Do you think the court staff in Chester County says among themselves, “I wish we had tens of thousands more cases”? The cases gravitate to Philadelphia for the same reason the people do: it has the infrastructure to handle them.
The core of the report, though, relates to the second part of their conclusions, that “Philadelphia plaintiffs are less likely to settle than other non-Philadelphia Pennsylvania plaintiffs, and Philadelphia plaintiffs are disproportionately likely to prefer jury trials.”
That may be true, but it does not necessarily follow that Philadelphia is unduly favorable to plaintiffs. ICLE’s argument that Philadelphia is a biased county just because it’s more favorable to plaintiffs than other counties requires a big assumption, i.e. the assumption that all Pennsylvania counties other than Philadelphia are perfectly fair for plaintiffs.
Allow me to make an entirely unoriginal observation: the non-Philadelphia counties are unduly unfavorable to plaintiffs.
To see why the ICLE logical leap is so wrong, some basic reasoning skills are needed. Let’s say you have 10 apples. One apple is much larger than the others. Does that mean that one apple is larger than it should be?
Maybe the remaining 9 are California holly (Heteromeles arbutifolia). You wouldn’t know from looking at it — the fruit is only a couple millimeters across — but it’s an apple, a member of the Maloideae subfamily, just an unusually small one. You could fit two dozen of them into any one of the delicious Braeburn apples I picked with my family up at Solebury Orchards in Bucks County (which also has just a fraction of the judges of Philadelphia and no mass torts program) last week, none of which are particularly large.
It’s quite possible you have 9 tiny apples and 1 small apple.
The same may be true of Pennsylvania: most of the counties are downright unfair to plaintiffs, while one, Philadelphia, is merely difficult to win in. It may be that Philadelphia is the only fair county in the whole state, or maybe even just the least unfair county.
The study spends a lot of time drawing conclusions about verdict size from medical malpractice data, which is understandable, because it’s often the only detailed data we have, but it’s where the absence of any supporting data for their wild theories becomes the most apparent:
While non-Philadelphia Pennsylvania juries returned favorable verdicts for plaintiffs around 15% of the time across the time period, Philadelphia juries consistently found in favor of plaintiffs more often – by as much as 23.7% in absolute terms in 2005
Left unsaid by the study and its reference to “absolute” percentage differences from six years ago — when pre-MCARE malpractice tort reform cases were still being tried — is the fact that most medical malpractice plaintiffs in Philadelphia lose at trial. Last year in Pennsylvania outside of Philadelphia, four out of five malpractice plaintiffs lost at trial. In Philadelphia, three out of four malpractice plaintiffs lost at trial. Some “systematic bias.”
If anything, it’s another “systematic bias” in favor of defendants like doctors and hospitals, just a little less severe than the bias outside of Philadelphia. Of course, as I’ve discussed here before, we know from the Harvard Medical School study on medical malpractice lawsuits that one-quarter of bona fide medical malpractice victims — patients whom even the Harvard panel of doctors through had been injured by malpractice — nonetheless lose in court. The whole legal system is biased against injured people, and that’s true in Philadelphia and everywhere else.
There’s ample reason to believe that Philadelphia isn’t a “plaintiff-friendly” venue; indeed, there’s reason to believe there are no “plaintiff friendly” venues in the country, just venues that are defendant-friendly to varying degrees. Economists have estimated that medical negligence cause nearly $20 billion in economic damage every year, yet the entire malpractice system pays out to victims well under $5 billion a year in settlements and verdicts. There is thus a minimum of $15 billion in economic harm caused by healthcare errors that goes completely uncompensated.
Of course, anyone who actually spent time in Philadelphia’s courts could have told you they’re not unfair to defendants. Even apart from the fact that Philadelphia’s juries are defense-friendly — remember that three out of four statistic — the judges, too, routinely dismiss plaintiff’s cases without even letting them go to trial.
A larger point needs to be mentioned: trial judges like the ones in the Philadelphia Court of Common Pleas aren’t the last word on everything; they’re often not the last word on anything. Particularly in these mass torts cases that form the bulk of the numbers cited by the ICLE, the cases are often appealed up and down the entire chain, from state trial courts to the federal Supreme Court. Consider those 2,200+ Reglan cases in Philadelphia: back in July, the Supreme Court’s decision in Pliva, Inc. v. Mensing — a Reglan case from Minnesota — changed the landscape considerably, and the case is now back in front of Judge Sandra Moss on the generic drug manufacturers’ motions to dismiss the cases entirely. Take a look at the plaintiffs’ and defendants’ briefs, which are together more than 100 pages to discuss just one Supreme Court case.
Multiply that across the two dozen or so mass torts cases in the Philadelphia CLC and the hundreds of legal issues that arise every week and you can get a sense of the scope of the work that needs to be done.
There’s a simple reason the tort reformers keep attacking Philadelphia’s Complex Litigation Center: it’s one of the few courts in the country capable of keeping up with that volume of legal work. For the big companies that fund tort reform efforts, it’s not enough that they control Congress and control many state legislatures — they need to attack the courts that actually decide these issues.
The plan is quite simple: justice delayed is justice denied. The question is if we let them get away with it.