Philadelphia Courts – Structural Bias and Reverse Bifurcation

When I studied federal courts in law school, some of the most interesting cases involving federal diversity and removal jurisdiction were decisions of the Third Circuit, on appeals from the Eastern District of Pennsylvania.  At the time, it did not occur to me that there must be strong incentives to push the boundaries of federal jurisdiction so hard to avoid state court.  A few years later, when I started to try cases in the Philadelphia County Court of Common Pleas, I “got it.”

You probably do not need to have a doctorate in economics to object when someone pisses on you, and calls it rain.  Still, it is comforting to have corroboration from someone with a doctorate.

Joshua D. Wright, a professor of law and economics at George Mason University School of Law, has written up the results of a study, “Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Examination,” published by the International Center for Law & Economics.  Professor Wright finds that the Philadelphia civil court system contains significant structural biases, which makes the Philadelphia Court of Common Pleas (PCCP) a magnet for plaintiffs from around the country, and which inflates verdicts and settlements in civil cases.

One such structural bias is the existence of a Complex Litigation Center.  Some of the judges and administrators in charge of the Center have seen their role to be rain makers, to bring litigation business to Philadelphia.  Of course, proper venue and the doctrine of forum non conveniens may tend to get in the way of such an official business plan.

Another structural bias in the Philadelphia courts is the automatic, unthinking use of a procedure called reverse bifurcation.  Typically bifurcation requires plaintiff to establish liability before proceeding to causation and damages, but reverse bifurcation puts causation and damages first.  This bizarre procedure was first urged by Johns-Manville lawyers in asbestos litigation, to avoid the shame and shock of having the jury hear their company’s liability case at the same time that the jury heard the evidence whether plaintiff was injury.  Reverse bifurcation gave them a chance to sanitize the trial on medical causation.  If they lost an up-or-down medical issue, the Johns-Manville lawyers could settle to avoid having the ugly liability evidence shared with the jury.

Johns-Manville soon filed for bankruptcy, but the plaintiffs’ bar learned that reverse bifurcation was a wonderful procedure.  They could get a verdict after three days of trial, and the second phase of the case was virtually untriable by the defense.  Why?  Because the plaintiffs’ lawyers found that they could inject their liability case surreptitiously into the first phase.  Claiming a relevancy to fear and emotional distress, plaintiffs’ counsel asked their clients whether they ever contemplated the horror of living with the increased risks of disease they now supposedly faced, and plaintiffs responded that they had no idea of the risks when they worked at the shipyards, refineries, or other workplaces.  In summation, plaintiffs’ counsel would slip in something like “After the last few days, you, members of the Jury, now know more about asbestos than my client did after 30 years of working in the shipyard.”  Defense objections and motions in limine were studiously ignored.  Who needs to prove a failure to warn, when you can simply assert it?

Egregiously, the reverse bifurcation procedure stuck, even when defendants, unlike Johns-Manville, had potent defenses.  Some Philadelphia judges, in second phase trials, tolerate indignant arguments from plaintiff’s counsel, to the effect that first the (recalcitrant) defendant caused this injury to his client, and now that defendant wants to take away plaintiff’s money, which the jury so thoughtfully, carefully, and justly awarded in the first phase.  Winning a second phase trial, in a case that has been reverse bifurcated, is a bit like cleaning out the Augean stables.

Some judges even went so far, in phase II liability trials as to sever crossclaims of the non-settling defendant.  This procedural maneuver required the defendant to post a bond for the entire judgment, without any offsets, in order to pursue an appeal.  The lack of a final judgment seemed not to disturb anyone other than the victimized defendant.

Not all Philadelphia judges were keen on these inequitable procedures.  I recall trying an asbestos case in front of Judge Levan Gordon, who refused to be bullied by the head of the Complex Litigation Center into reverse bifurcating asbestos trials.  (O’Donnell v. Celotex Corp., PCCP July Term 1982, No. 1619; May 1989)  Judge Gordon had his own strong medicine for defendants:  he tried the cases all issues, with no bifurcation of punitive damages.  Judge Gordon tried my case, which was prosecuted by now Philadelphia Judge Sandy Byrd, straight through.  Because my adversary, Sandy Byrd, insisted on pressing negligence and punitive damages, I was able to try an empty-chair defense against the United States government, which owned and ran the Philadelphia Naval Shipyard, where plaintiff worked.  I was also able to put on a state-of-the-art defense.  And my jury saw what juries rarely see in Philadelphia, the complete story.  They refused to hold my clients responsible for what really was the negligence of the government, even though I had a weak medical defense.

The head of the Complex Litigation Center was furious that Judge Gordon had taken up three weeks of courtroom time.  Her Honor was deaf to explanations that it was plaintiffs’ choice to pursue negligence and punitive damages, which claims opened the door to the sophisticated intermediary and state-of-the-art defenses.  Somehow it was the defendants’ fault for tying up a courtroom, and for derailing the all-important case statistics.

Then, as now, there are some excellent judges in Philadelphia, who are intent to try cases fairly and impartially, with even-handed procedures.  And then there are other judges, who have helped create Philadelphia’s reputation, and the statistics that support Professor Wright’s conclusions.

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