In September 2017, a Philadelphia jury awarded $57.1 million to a woman who used a defective pelvic mesh implant to treat her urinary incontinence, then had a second device installed and endured several subsequent surgeries because the new implant also failed.
The verdict, against Johnson & Johnson subsidiary, Ethicon, included $50 million in punitive damages, and was the largest award so far among many cases over the mesh product that have been filed with the Philadelphia Court of Common Pleas.
The case was an example of an allegedly pro-plaintiff system that earned the court the title of “judicial hellhole” in 2018 for the second year running from the American Tort Reform Foundation, a nonprofit that annually calls out court systems which it says “systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.”
The Philly court system was No. 6 in the latest top-10 “hellholes” list, down from No. 5 in 2017, and behind other jurisdictions including top-rated California.
The latest report, issued in December, says the perceived friendliness of the Philly court to people claiming injury from medical malpractice, pharmaceuticals and asbestos continues to encourage plaintiffs’ attorneys to file thousands of suits, many of which are from out of state.
“The Philadelphia Court of Common Pleas continues to be a national epicenter for product liability litigation,” the report said. “The continued surge of new lawsuits and judges’ unabated willingness to open the court’s doors to cases from outside the city and state solidifies ‘The City of Unbrotherly Torts’ position on this year’s list of Judicial Hellholes.”
The charges of judicial bias were condemned by the Philadelphia Bar Association, which defends judges and court employees.
“The First Judicial District is the largest of the 60 judicial districts in the Commonwealth of Pennsylvania and many defendants are sued here because they do business in this jurisdiction,” said Mary Platt, 2018 chancellor of the PBA, in a statement.
The large number of torts filed in Philadelphia may reflect expectations that the city’s juries are more likely to be empathetic to plaintiffs than elsewhere but they are not the result of any bias by judges, Platt said.
“The plaintiffs make the decision and they base it on what they believe to be a proper interpretation of the law and the law allows these cases to be filed here. So ATRF should not criticize our judges for applying the law,” she said.
“Attorneys with claims of negligence love a Philadelphia jury trial because we have a history of large verdicts.”
– Former Philadelphia District Attorney Lynne Abraham
Tom Kline, a leading Philadelphia personal-injury attorney, said there’s no evidence that local juries are more likely to punish defendants than those in other jurisdictions. He noted that Philadelphia juries delivered verdicts for the defense in medical malpractice suits in 61.9 percent of cases in 2017, as reported by the Administrative Office of Pennsylvania Courts.
He rejected the idea that jurors in a traditionally working-class city are more likely to “stick up for the little guy,” especially now that demographics are changing. Because of an expanding and more professional population in Center City Philadelphia, its juries are more likely to include educated people who will take a balanced view of the charges before them, he said.
“Philadelphia County is not the county of runaway juries,” he said. “Juries are increasingly more sophisticated and more diverse.”
He said many personal-injury cases are filed in the Philadelphia court system because it has an efficient system for dealing with multiple plaintiffs, an efficient appellate system and a “fair and balanced” judiciary.
Kline, whose firm, Kline & Specter, won the $57.1 million mesh-case award, also defended the right of plaintiffs from out of state to sue in the state where companies do business. He said the Philadelphia courts are scrupulous in examining whether they are the correct jurisdiction for a case to be filed, and sometimes reject cases if they find the cases should have been filed elsewhere.
Kline slammed the ATRF report as the latest product of an organization that he said exists to represent major corporations whose products are under attack in the courts. “They are not some independent arbiter of truth and fairness. They are a corporate interest group,” he said.
He urged the courts to investigate what he called an improper attempt by ATRF to interfere with judicial independence.
“They are trying to improperly influence the courts in Pennsylvania and other states, and they’re trying to intimidate the courts into adopting their anti-consumer agenda,” he said.
The ATRF’s parent, the American Tort Reform Association, did not respond to questions about the identity of its members but said it is supported by “a breadth of businesses and organizations dedicated to reforming the civil justice system.”
A frequent target for personal injury claims in Philly is the anti-psychotic drug Risperdal which has so far drawn more than 6,700 suits to the mass tort program of Philadelphia’s Complex Litigation Center, prompted by allegations that it can cause young men to grow female breast tissue. The number of filings against the drug’s maker, Janssen Pharmaceuticals, in the court surged by 219 percent in 2017, the report said.
Suits against the blood-thinning drug Xarelto stood at 1,854 in June 2018, or 23 percent higher than a year earlier, the report said. Out-of-state plaintiffs accounted for 84 percent of the cases.
The third-biggest category was for asbestos claims, of which 561 had been filed with the CLC by November 1, 2018, giving the Philadelphia court the fourth-biggest number of those suits in the country.
Given the number of plaintiffs from out of state, the ATRF also said the Philadelphia court has turned a “deaf ear” to a 2016 U.S. Supreme Court ruling that states cannot exercise personal jurisdiction over claims brought by non-residents against non-resident companies for injuries that did not occur in the state.
The Bar Association does not dispute the Philadelphia torts data used by the ATRF, but objects to how the data are used, said PBA spokesman Tom Rogers.
Former Philadelphia District Attorney Lynne Abraham said the perceived friendliness of Philly juries toward plaintiffs explains the large number of personal-injury suits filed here.
“Attorneys with claims of negligence love a Philadelphia jury trial because we have a history of large verdicts,” said Abraham, who was a Common Pleas judge for 11 years until 1991. “They try to hold the trial here as opposed to the surrounding counties. Out there, juries are viewed as less plaintiff-friendly and definitely not as open-handed.”
Abraham, now in private practice, said tort reform has been proposed, although not implemented, for decades but she’s not sure that plaintiff-friendly juries are a problem that can or should be fixed.
“How do you stop the ordinary group of jurors from coming back with a big verdict?” she asked. “Assuming they followed the law and found the facts from the evidence presented to them in court, where, the argument might go, is the beef?”