Monday, March 29, 2010

It's Always Convenient in Philadelphia

The authors of this blog live and work in the Philadelphia area. And that suits us right down to the ground. Despite a bad reputation from fans throwing snowballs at Santa (or the Mayor throwing them at the Dallas Cowboys), Philly is a terrific place, with unsurpassed historical (Independence Hall, Betsy Ross House, Valley Forge, Larry Fine) and cultural attractions (the Franklin Institute, Mutter, and Mummer museums - and soon the Barnes (thanks to its Lower Merion neighbors for running it into town).

Philly is an even more terrific place to be a litigator, especially in drug and device law. Look at a map and see how major pharmaceutical companies ring the Delaware Valley and line up from the top of the New Jersey Turnpike down to Wilmington, Delaware. Add to that the presence of extraordinarily aggressive and creative plaintiff lawyers in the City of Brotherly Love, and it's no surprise that so many of the most prominent drug and device lawsuits end up in our backyard.

Plaintiff lawyers love -- absolutely love -- to file mass tort lawsuits in the Philadelphia Court of Common Pleas (the good old "CCP"). And we're not just talking about Philadelphia plaintiff lawyers. There's no shortage of cowboy boots in City Hall (where CCP is located), because Texas plaintiff lawyers spend almost as much time here as in their home on the range, since the Lone Star state saw fit to pass real-live tort reform. Maybe that's because Philadelphia has been in and out of ATRA's "hellhole jurisdiction" list for years- not as bad as some places (most of West Virginia), but a lot worse than others (say, the state of Delaware, or Chester County PA (more on that later)). We have personally been in courtrooms where, in between the rumblings of the subway (rolling loudly directly underneath the building) judges issue rulings that can sometimes charitably be described as peculiar. (In a recent pharma case, the husband of a decedent was claiming loss of consortium. A plaintiff witness sadly described the husband as, in one word, "alone." The defendant was never permitted to mention that the husband had remarried. Explain that one.)

A number of the judges have a background as plaintiff lawyers (and the pay isn't very good, so a lot of what we get are former criminal defense and prosecutors who need a lot of on the job training in other legal areas). Judges here are elected, one party is all powerful (guess which one has 80%+ of all partisan registered voters), and plaintiff lawyers have been known to make the occasional campaign contribution - and no, there are no limits to individual contributions to judges in Pennsylvania.

All that being said, we think the pro-plaintiff reputation of Philly judges can be a bit overblown. Most of the judges apply the rules fairly and rigorously and prevent plaintiff lawyers from choking the life out of the Pennsylvania Rules of Evidence. No matter what one's background or political predilections, there's only so much of plaintiff lawyer overreaching, empty-pleading, lawsuit-warehousing, and jury-baiting that one can take.

If Malcolm Gladwell is right about huge amounts of experience (he said 10,000 hours) being the key factor in producing excellence, then we ought to see lots of excellence in Philly lawyers and judges when it comes to pharma litigation. Most of the people in the courtroom (including the clerical staff) have pretty much seen it all before. Experience produces efficiency and predictability....

...Except maybe when it comes to jury verdicts. It's probably more the reputation of Philadelphia juries that makes CCP so alluring to plaintiff lawyers. Some verdicts coming out of City Hall can themselves cause whiplash (we remember a couple of 9-figure verdicts - almost immediately set aside - to no-present-injury drug plaintiffs). Nevertheless, we feel compelled to rise to the defense of our brethren, as we've seen other Philly juries apply their well-honed cynicism (most are Eagles fans, after all) against bogus plaintiff claims and send those plaintiffs empty-handed back to Georgia, Utah, Texas, or wherever they come from.

And yet like army ants plaintiffs keep marching into our CCP. They come to Philly from far-flung nooks and crannies of the US -- or globe -- and sue companies that are (and even aren't) based in Philly. That sure keeps the local judges and juries busy, but with the city facing a huge deficit, it's hard to believe that's spending all this money to provide courtrooms, judges, juries, and all the rest for plaintiffs from all over will be looked upon favorably by city taxpayers facing budget cuts and a 12% property tax increase. Maybe the visitors bring some sort of jolt to the economy (some of those high-flying plaintiff lawyers down a lot of creme brulee and Johnny Walker Black at the Four Seasons), but we doubt that makes up for the strains imposed upon the local judicial system. We'll leave the economics of Philadelphia as a lawsuit capital to the Chamber of Commerce.

There is a legal doctrine that's supposed to act as a check on blatant forum shopping: forum non conveniens. We recently blogged about a New York court that sent Lipitor plaintiffs back on a midnight train to Georgia because the plaintiffs lived in Georgia, ingested the product in Georgia, suffered the alleged injuries in Georgia, all the doctors were in Georgia, and all the plaintiffs' witnesses were in Georgia. Pretty straightforward, right?

Not so much in Philly. In Hunter v. Shire, Inc., 2010 WL 937279 (Pa. Super. March 17, 2010), the court allowed a Georgia (what's with this Georgia diaspora?) plaintiff to maintain an action in Philly CCP even though, just like the plaintiff in the NY case, the plaintiff lived in Georgia, ingested the product in Georgia, suffered the alleged injuries in Georgia, all the doctors were in Georgia, and all the plaintiffs' witnesses were in Georgia. Why?

There's a long answer and a short answer. The short answer is that in the usual tug-of-war between plaintiff and defendant, where the plaintiff says the case is mostly about the defendant's conduct, and the defendant says the case is mostly about the plaintiff's conduct and injuries, the plaintiff won. The Hunter court agreed that the central issues in the case concerned the development, testing, and marketing of the drug, all of which were carried out by defendant's employees in Pennsylvania.

The long answer involves the usual forum non conveniens analysis. As a preliminary matter, the defendant cannot make the FNC argument without showing an alternative forum exists. That was no problem in Hunter, because Georgia actually has a court system. That's nice - even if Georgia plaintiffs don't like to use it. Next comes the balancing of the private and public factors. Here, the Hunter court reached a bad result by relying on an earlier bad decision, Wright v. Aventis Pasteur, Inc. 905 A.2d 544 (Pa. Super. 2006). Wright involved Texas plaintiffs, but change "Texas" to "Georgia" and you end up with an almost complete transposition of the Wright court's reasoning into the Hunter decision. Wright was wrong for a number of reasons, but the most maddening is that the appellate court reversed the trial court's decision to dismiss on FNC grounds, even though such dismissals are reviewed for abuse of discretion.

Anyway, back to the private-and-public-factor balancing test (and, as we all know, balancing tests are just fancy ways of reaching the result you want at the outset). The first private factor involves the deference given to the plaintiff's choice of forum. There must be "weighty reasons" to overturn the plaintiff's preference. The defendant pharmaceutical company argues that it is burdensome to travel to Georgia to depose plaintiff's medical providers. But the court concluded that the "central issue in this case does not involve [plaintiff's] consumption of the drug." Hunter, at *4. Huh? Rather, the case "primarily concerns [defendant's] development, marketing, testing, and knowledge of the risks of heart attacks associated with its use." Id. at *2. And then, of course, there is the "public factor" that the case involved the actions of a pharmaceutical company that marketed its products in Pennsylvania; in light of that fact, "the conclusion that the citizens of this state had no interest in the action was unsubstantiated." Sure. The citizens of Pennsylvania are desperately interested in raising their property taxes to let out-of-state litigants clog up their court system.

Here's what's wrong with Hunter (and Wright). First, the deference to plaintiff's choice of forum was overblown. In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the Supreme Court made clear that the assumption that a forum is convenient is "less reasonable" when a plaintiff is foreign and therefore should be applied with less than maximum vigor. See also Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007) ("When the plaintiff's choice is not its home forum ... the presumption in the plaintiff's favor applies with less force, for the assumption that the chosen forum is appropriate is in such cases less reasonable"). Relaxing the presumption in favor of plaintiff's choice of forum is especially appropriate when it appears that the plaintiff's choice was made based on forum shopping reasons, as opposed to some other rational basis. See Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) ("[T]he more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping ... the less deference the plaintiff's choice commands.") Let's face it, the plaintiffs in Hunter and Wright (and their lawyers) were engaged in pure, unmitigated forum shopping. You'll see further proof of that shortly.

Second, the weighing of the factors was simplistic and one-sided. How can it reasonably be said that the case is all about defendant's conduct, when issues of specific causation, reliance, and damages are at least as likely to lead to resolution of the case? It's hard to believe that the number of company witnesses will add up to more than than the plaintiff, friends, family, and doctors. Moreover, at least some company witnesses are likely to come to trial, even if they must travel a considerable distance. By contrast, there is no way to compel treating doctors to interrupt their busy medical practices and fly up to Philadelphia to describe their care of the plaintiff. We hope that, at a minimum, the defendants in Wright and Hunter are allowed to argue to the jury that, "Ladies and Gentlemen, the treating doctors are the most important witnesses in the case. They have no axe to grind. The proper care of the plaintiff is their highest concern. As you heard from the reading of their deposition transcripts [or saw in the video], they think the plaintiff needed this medicine, that the medicine helped the plaintiff, and that the medicine didn't harm the plaintiff at all. Now, we would have liked for you to have been able to see the doctors here in court, live and in person. But plaintiff's lawyers made the decision to file their lawsuit in a jurisdiction hundreds of miles away from where the plaintiff and his doctors live, so that, unfortunately, just wasn't possible." You can even get an adverse inference instruction in Pennsylvania against a plaintiff who fails to call treating physicians. Bowman v. Plumbarama Co., 53 D. &. C.4th 434, 437-38 (C.P. Philadelphia Co.2001), aff'd mem., 797 A.2d 367 (Pa. Super. 2001) (full text at 2001 WL 34394456).

We mentioned above that the plaintiff in Hunter was engaged in unadulterated forum shopping. What's our proof of that? It arrives in the last part of the Hunter opinion. 2010 WL 937279, at *5-6. The issue in that case wasn't just whether the action should have been in Pennsylvania or Georgia, it was also whether the case should have been filed in Philadelphia County or Chester County. Pa. R. Civ. P. 1006(d)(1) "embodies the doctrine of forum non conveniens as between counties in Pennsylvania." Remember how the court decided that the Pennsylvania forum was convenient because the case was about Shire's conduct and Shire was located in Pennsylvania? The location of the defendant's employees was a really big deal to the court. Well, Shire is located in Chester County, not Philadelphia County. To be more specific, Shire's corporate headquarters are located in Chester County. As the Supreme Court recently held in a case on diversity jurisdiction, a corporation's principal place of business is almost always going to be its corporate headquarters. Hertz Corp. v. Friend, 2010 U.S. LEXIS 1897 (Feb. 23, 2010).



But a lawsuit in Chester County means a suburban court, with a suburban (probably Republican) judge and, egad, a suburban jury. Plaintiff sure as heck didn't want that. Why, that would be as bad as a Georgia jury!

But facts are facts, and geography is as plain as a map, so how does the case remain in Philadelphia County? The court offers three reasons. The first is that old bugaboo, deference to plaintiff's choice of forum. 2010 WL 937279, at *5. But, again, plaintiff is a foreigner so such deference is attenuated. Second, "Chester and Philadelphia Counties are adjacent to each other and are readily accessible in a short amount of travel time." Id. at *6. Now that's a rarefied judicial principle. There are several counties adjacent to Chester. In actual fact, Philadelphia County is NOT adjacent to Chester County. But it is adjacent to a county that's adjacent to Chester County. And it's certainly the nearest county that has occasionally been designated a Judicial Hellhole. And, aside from that fact, there is no imaginable reason for the case to be litigated in Philadelphia. Third, the defendant did not "demonstrate with detailed averments in its petition and accompanying brief why the chosen forum was vexatious or burdensome to it." Id. We don't know what evidence was submitted by defendant, and we don't know what sort of issues would have passed muster under the Rule 1006 FNC "test" (child care issues for company employees, erection of a Berlin Wall along the County Line, a pathological fear of cheesesteaks?), but the lesson seems to be that a defendant had better be energetic and creative in cobbling together evidence of inconvenience.

Finally - Irony alert: Chambers this year ranked the Pennsylvania judicial system as 34th best in the country in terms of "fairness of litigation environment." That's a swell improvement over 2008, when we were only 36th. Want to take a stab as to Pennsylvania's highest ranking category? "Having and enforcing meaningful venue requirements."

In the meantime, welcome to Philadelphia. Enjoy our judicial system (while we pay for it). Have a pretzel. And call us.

1 comment:

Anonymous said...

Maybe that's because Philadelphia has been in and out of ATRA's "hellhole jurisdiction" list for years-

I stopped reading there. Hard to believe anyone would cite such nonsense as an argument for anything.