One of the most plaintiff-friendly jurisdictions in the country has recently made changes to level its playing field. On February 15, the Philadelphia Court of Common Pleas issued a new regulation and order in response to comments from the bar about the court’s Complex Litigation Center (CLC). Long known for its willingness to increase the size of its docket and its pro-plaintiff leanings, the CLC is taking steps to reduce its backlog, eliminate some of its one-sided policies, and discourage out-of-state filings. Though the new guidelines focus largely on asbestos cases, which constitute the greatest backlog on the CLC’s docket, a number of guidelines apply to all mass tort cases.

The order eliminates the controversial procedure known as “reverse bifurcation.” Under reverse bifurcation, damages were allocated to plaintiffs before liability was decided. By putting the cart before the horse in this way, the CLC gave plaintiffs an enormous advantage. They were able to gain juries’ sympathy before anyone had even decided the issue of fault. Now, reverse bifurcation is prohibited unless all counsel agree—an unlikely outcome given the prejudicial effect on defendants.

Consolidation of mass tort cases, with exceptions for asbestos cases, is no longer allowed. Another pro-plaintiff policy, consolidation offers “similar” cases to juries in the guise of efficiency. Such “efficiency” is little more than an illusion in pharmaceutical and other product liability cases, where plaintiffs often have different injuries, different physicians who may or may not have heeded the manufacturer’s warnings, and a host of individual health conditions that could support alternative causation theories. Consolidating these claims minimizes these differences and maximizes what is common to the consolidated cases—the defendant’s product. This often leads to the inevitable but illogical conclusion that the product must have caused the injuries. Again, the parties can agree to consolidation, but what defendant would agree to tip the scale in plaintiffs’ favor in this way?

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