Judge John Herron, Administrative Judge of the Trial Division of the Philadelphia Court of Common Pleas recently announced that the Philadelphia courts will suspend their use of consolidation and reverse bifurcation in mass tort actions . The Court had previously announced that it was studying whether consolidation and reverse bifurcation procedures have adequate procedural safeguards in place “to assure fair and just disposition of actions filed.” See Notice to the Bar – Mass Tort Program (Dec. 8, 2011). The Court also indicated that after a period of studying these procedures, the Court may reinstate reverse bifurcation and consolidation if the Court believes that the procedures are implemented fairly. Reverse bifurcation in pharmaceutical cases will end permanently as of January 1, 2012.
The procedural unfairness of Philadelphia’s handling of so-called mass torts has been described by Joshua D. Wright, a professor of law and economics at George Mason University School of Law, in his study, “Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Examination.” See also Michelle J. White, “Asbestos Litigation: Procedural Innovations and Forum Shopping,” 35 J. Leg. Stud. 365 (June 2006); Michelle J. White, “Understanding the Asbestos Crisis” (2003).
These articles only scratch the surface of what goes on in Philadelphia. See “Philadelphia Courts – Structural Bias and Reverse Bifurcation” (Oct. 27, 2011).
The United States Constitution places limits on courts’ abilities to grant separate trials. The Seventh Amendment’s Reexamination Clause provides that:
“no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
U.S. CONST, amend. VII. The Supreme Court interpreted the Reexamination Clause to prohibit a grant of a partial new trial in some circumstances:
“Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. . . . Here the question of damages on the counterclaim is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty, which would amount to a denial of a fair trial.”
Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (U.S. 1931). Lower courts have divided over whether the Reexamination Clause is an obstacle to trial bifurcation, with some courts holding that the procedure is prohibited when overlapping issues in the phases of the trial will be reexamined successively in multiple trials. See W. Russell Taber III, The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation, 73 Def. Counsel J. 63 (2006).
Philadelphia-style, across-the-board reverse bifurcation certainly has the potential to offend the Reexamination Clause, as well as other constitutional guarantees. If the bifurcated trials contain issues that are not independent, then the Reexamination Clause would seem offended. On the other hand, if the trial issues are independent, then the so-called “conjunction paradox” suggests that bifurcation undermines the jury’s evaluation of the burden of proof. The product rule of probability teaches us that the probability of multiple independent events occurring is the product of the probabilities of each event’s occurring. If, for instance, the probability of a particular plaintiff’s medical causation claim is 75%, and the plaintiff’s proximate cause claim is 75%, and the plaintiff’s negligence (breach of duty) claim is 75%, the probability of all necessary elements having occurred jointly would be 42.2%. In a bifurcated trial, plaintiff would win each separate trial easily, but in a “straight-through” trial, plaintiff should fail to carry his burden of proof. See generally Ward Farnsworth, The Legal Analyst: A Toolkit for Thinking about the Law 273-76 (Chicago 2007).
Apparently, last month, Philadelphia Common Pleas Court Judge Sandra Mazer Moss, who now coordinates the so-called Complex Litigation Center, announced certain asbestos cases – mesothelioma cases in which defendants did not contest diagnosis or asbestos etiology – would be tried in unbifurcated (“straight through”) trials. Michael P. Tremoglie & Jon Campisi, “Reverse Bifurcation Suspended in Philly Mass Torts,” Legal Newsline (Dec. 9, 2011); and The Pennsylvania Record (Dec. 9, 2011).
This policy, like its former incarnations, draws an invidious distinction between those cases in which diagnosis or medical causation is contested and those cases in which diagnosis or medical causation is uncontested. Previously, Judge Moss would “sever crossclaims,” and force a defendant to proceed to try only its own liability. The result was that a loss on both medical causation and liability required the judgment defendant to bond an entire judgment, without offset for settling defendants’ shares. The common thread appears to be pressure defendants to settle, regardless of due process or substantial fairness.
Legalline‘s coverage noted that Judge Moss limited her abandonment of reverse bifurcation in ways that perpetuate the unfairness of Philadelphia procedures:
“This is something the litigants asked for and Judge Moss agreed to. A lot of times the cases would resolve after the damages were seen.
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“But since it will be uncontested as to the cause, it will be a ‘straight through’ trial. This way cases will move faster through the court.”
This reasoning makes no sense. If defendants acquiesce in medical causation, say of a lung cancer claim, they obtain a fair chance to litigate their liability defenses. If both medical causation and liability are contested, however, defendants are subject to the backwards method of having to risk an adverse medical and damages verdict before the jury hears the defendants’ liability defenses. Given that very few lung cancer cases, and no extrapulmonary cancers, are caused by asbestos, Philadelphia’s procedures still leave a lot to be desired.
