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‘Lull’ In Philadelphia Mass Torts? Quoted in the Legal Intelligencer

This week in The Legal Intelligencer daily newspaper I was quoted alongside other attorneys and judges in the Philadelphia Mass Tort arena about the caseload in the city’s courts. The general consensus of the others interviewed was that there is a a ‘lull,’ however our firm’s Risperdal gynecomastia cases are very active. We are continuing to take new cases and filing more weekly.

Philadelphia colleagues, what’s your experience? Practitioners from other areas, what’s the caseload like in your courts?

 

‘Lull’ Seen by Attorneys in Phila.-Based Mass Tort Litigation

Philadelphia has traditionally been a hotbed of mass tort litigation, but some attorneys say the city’s courts are currently experiencing a break in the number of new mass tort cases filed.

P.J. D’Annunzio

2013-11-05 12:00:01 PM

Philadelphia has traditionally been a hotbed of mass tort litigation, but some attorneys say the city’s courts are currently experiencing a break in the number of new mass tort cases filed.

Conversely, court officials indicate that there has been an increase in certain types of mass tort cases, namely pharmaceutical filings from out-of-state plaintiffs.

Philadelphia Court of Common Pleas Judge John W. Herron, the administrative judge of the court’s civil trial division, said that within this year there has been a noticeable drop-off in new asbestos filings from out of state, as well as a large number of cases disposed.

“Based on the most recent nine months, we’ve been very pleased to see that the inventory has decreased. There’s been a 5 percent decrease in the number of new case filings in out-of-state plaintiffs in the asbestos inventory,” he said.

 Claudine Homolash said that mass torts appeared to be quieting down in the city’s courts, but noted that her firm is involved with litigation regarding Johnson & Johnson’s Risperdal, an antipsychotic drug.  According to Homolash, the litigation surrounds gynecomastia, or the growth of breasts in males allegedly caused by the drug.

Additionally, chief deputy court administrator for the civil trial division, Charles A. Mapp Sr., said that 1,035 Yaz, Yasmin and Ocella birth control case records were closed out this year through disposition.

However, Mapp said that the court’s pharmaceutical inventory has seen a 5 percent increase in filings from out-of-state plaintiffs. Of the pharmaceutical filings, 373 out of 409 were from out-of-state plaintiffs.

In June, Herron told The Legal that since he wrote new protocols for the mass torts program “to add structure and predictability to the mass tort program and to begin to manage what we viewed then as a crisis in the number of filings, we have had an exceptional result where we have now greatly reduced the filings to a much more manageable number.” Herron said he and Judge Arnold L. New—supervising judge of the trial division’s civil section and coordinating judge of the Complex Litigation Center—felt that the protocols produced a “remarkable turnaround which restores our confidence in our ability to manage the filings.”

But Herron said in an interview last week that the claims from some attorneys that Philadelphia is no longer plaintiff-friendly are misguided.

“I think there’s a disparity in Pennsylvania lawyers’ views of complex mass tort and lawyers who aren’t as familiar with the protocols,” Herron said. “Ever since I wrote the protocols there has been some concern from out-of-state lawyers that Philadelphia is not a friendly forum. That is not the attitude of Pennsylvania lawyers, who actually helped write the protocols. While there were changes to the process, they were more procedural than substantive.”

Sol H. Weiss, who focuses on complex litigation at Anapol Schwartz, said that he has seen a “lull in the action” concerning mass torts in Philadelphia, and that federal policy could have something to do with it.

“Mass torts are cyclical; I’ve been doing them since the mid-90s and part of it has to do with what goes on in D.C., if you’re talking about pharma,” Weiss said. “The FDA under the Bush administration was not too great at stressing a lot of warnings. Obama has been more proactive in putting out more label changes, warning physicians about the side effects of prescription drugs. That takes away a lot of the failure-to-warn claims.”

Weiss also explained that recent U.S. Supreme Court rulings could affect the number of pharmaceutical cases coming to Philadelphia, such as in Pliva v. Mensing.

“In the Mensing case, the court said that generic drug manufacturers have no independent duty to warn,” Weiss said.

But Weiss said the current lull won’t last forever.

“There are still a number of mass torts that are in the federal system. There are peaks and valleys, and right now we’re in the trough,” he said.

Peter J. Neeson of Rawle & Henderson said he noticed the drop-off in asbestos cases in Philadelphia and attributed it to better shipyard safety measures implemented in past years.

Neeson also said that mesothelioma has a very long latency period, meaning that people who were exposed to asbestos 40 or 50 years ago may have died before the disease could manifest itself.

“There are just less of them around,” he said.

“We should also see more motions for summary judgment being granted as per the Howard decision in the Supreme Court, and Betz,” Neeson said.

L. Leonard Lundy, managing partner at Lundy Law, also said that the current slowdown is part of the cyclical nature of mass torts.

“Mass torts ebb and flow depending on what the plaintiffs bar perceives as drugs upon which they can take action,” Lundy said.

“It depends, to a certain degree, what the FDA does,” Lundy continued, “what science is producing, the risk associated with the drugs that are uncovered or revealed that lawyers believe are actionable. It’s hard to say when that occurs, it’s very spontaneous.”

Lundy said that there are still many mass torts “out there” but “it just seems that they’re not as large in number as things we’ve had in the past like hormone replacement therapy, which numbered in the tens of thousands.”

Another reason for a reduction in mass tort claims coming to Philadelphia, according to James M. Beck of Reed Smith, are new determinations in corporate citizenship for large companies.

“There was a big fight over the citizenship of GlaxoSmithKline. The Third Circuit said GSK was a Delaware company. The same thing may happen if Johnson & Johnson is a resident of New Jersey, which could have ripple effects in Philadelphia,” Beck said.

Claudine Q. Homolash said that mass torts appeared to be quieting down in the city’s courts, but noted that her firm is involved with litigation regarding Johnson & Johnson’s Risperdal, an antipsychotic drug.

According to Homolash, the litigation surrounds gynecomastia, or the growth of breasts in males allegedly caused by the drug.

Of recent trends stemming from mass torts in Philadelphia, Herron said he noted that “there seems to be less willingness on the part of companies to settle matters, so we’re experiencing greater resistance to the settlement process. There are weaker cases in the systems, so there is a hardening of attitudes in the mediation process.”

Lundy said that, looking at emerging Philadelphia-based mass tort litigation, transvaginal mesh cases and litigation surrounding the nausea drug Reglan are worthy of attention.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI. •

Link

“‘Lull’ Seen by Attorneys in Phila.-Based Mass Tort Litigation” The Legal Intelligencer, November 5, 2013

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