In the opening paragraph of his paper, Professor Kadane quotes from the Supreme Court’s opinion that “the premise that statistical significance is the only reliable indication of causation … is flawed,” Matrixx Initiatives, Inc. v. Siracusano, ___ U.S. ___, 131 S.Ct. 1309 (2011).  The quote is accurate, but Professor Kadane proceeds to claim that this quote represents the holding of the Court. Kadane, supra at 1. The Court held no such thing.

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.

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.