The Complex Litigation Center in Philadelphia, Pa., has terminated the practice of consolidating mass tort cases without agreement of all parties, and also of using "reverse bifurcation," whereby juries determine damages before determining whether a defendant was liable for them. These procedures prejudice manufacturers, and the NAM joined with other business groups to support making the Center's changes permanent. These procedures have helped make Philadelphia a magnet jurisdiction for plaintiffs' attorneys. The NAM's comments also urged the Center not to reintroduce punitive damages claims into asbestos litigation, both to prevent further bankruptcies and to preserve resources for future asbestos claimants.
On February 15, 2012, the court adopted the protocols above, with the exception of special rules for asbestos cases. In addtiion, out-of-state attorneys appearing in cases before the Complex Litigation Center are limited to no more than two trials per year. The court's protocol also states that "All punitive damages in mass tort claims shall be deferred." Unfortunately, on May 3, 2012, it notified the mass tort bar that it was inviting comments on this last protocol, suggesting the possibility that it was reconsidering the procedure.
Consequently, the NAM and others filed comments on 6/1/12 supporting the continued deferral of all punitive damage claims for mass tort litigation. While the focus of the litigation is on asbestos and pharmacological claims, the letter applies to all mass tort claims. We noted that the need to punish defendants in asbestos cases is unnecessary to prevent repeated acts, because the large number of bankrupt companies clearly established the deterrence. Furthermore, awarding large sums to early plaintiffs would prevent other injured parties from gaining just compensation. Finally, the letter noted that regulations in the medical field were comprehensive, and to allow punitive damages would create a potential disincentive for investing in life-enhancing and life-saving products. Having met these regulations and working to advance these products and customers’ lives, these companies should not be punished with repeated sanctions.
The court issued an order 6/18/12 continuing to prohibit reverse bifurcation of mass tort cases unless agreed upon by all counsel. It also will allow punitive damages claims in pharmaceutical mass tort cases provided there is enough proof to support such a claim, and will allow expedited trials for plaintiffs facing imminent death. It also will allow out-of-state lawyers to participate in up to 4 cases every year.