Complex Litigation Programs in the Philadelphia Court of Common Pleas, Pennsylvania
Introduction
Most new civil cases in Pennsylvania are filed in the Philadelphia Court of Common Pleas.1 In 1993, Philadelphia was listed 44th out of the 45 largest urban trial courts in terms of length of time to dispose of civil jury cases. As a result of programs initiated in 1992 and subsequent years, Philadelphia has dramatically decreased the length of time to dispose of civil jury cases and was hailed by the National Center for State Courts in 2004 as "arguably the best-managed large urban civil trial operation in the nation."2 Currently, only a small percentage of civil jury cases have been pending for more than 24 months.3 Philadelphia continues to have a reputation for generous juries and generally liberal jurists. It was listed by the American Tort Reform Association (ATRA) as one of nine "Judicial Hellholes" in 20044 and included on ATRA’s "Watch List" in 2005 and 2006.5
This article will discuss three programs in Philadelphia which have contributed to its success in expediting the disposition of cases including the Complex Litigation Center-Mass Tort Program, the Commerce Program and Class Action Program.
Complex Litigation Center – Mass Tort Program
Philadelphia’s Complex Litigation Center (CLC) was established in 1992 pursuant to an Administrative Order of the Pennsylvania Supreme Court in order to address the growing volume of mass tort cases.6 Since then, approximately 30 different mass tort programs have been assigned to the CLC. The following programs are active as of 2009: Asbestos, Avandia, Breast Implant, Phen-Fen, phenylpropanolamine (PPA), Silica, Trasylol, Hormone Therapy, Beryllium, Lymerix, Paxil, Vioxx and firefighter hearing loss.7 The attention given to these cases and the process used have provided for consistent decisions and firm trial dates, which is part of the reason the CLC has become a center for mass tort filings from all over the country, especially major pharmaceutical mass torts. The reputation of Philadelphia juries as generous and a perception that the CLC has disposed of cases more expeditiously than federal MLD courts are additional reasons for the popularity of the CLC among plaintiffs filing new cases.8
The Honorable Sandra Mazer Moss became the Coordinating Judge for the CLC in January 2009. Judge Moss previously served in this same role and was the first judge assigned when the program was established in 1992. Stanley Thompson, Esquire, the former Supervising Civil Case Manager, was named the Director of the CLC in March 2006.
Once a mass tort program is established, liaison counsel are selected. Regular meetings are scheduled between counsel and the Coordinating Judge and/or Director at which time liaison counsel are expected to report regarding the progress of cases. Case Management Orders, which are for the most part agreed upon, are entered in a master docket and designate when and how actions are filed, pleadings served, the form of pleadings, and procedures to be used for discovery. Initially, the goal is to complete global discovery and reach trial in the initial cases on a 30-36 month track. An effort is made to bring later cases to trial 18-24 months after filing. Judicial mediation or settlement conferences are available and encouraged. Procedures vary between the individual programs based on the Case Management Orders entered, but general procedures are explained below.9
Pleadings - Generally, plaintiffs file a global long form complaint and each defendant files an answer to that complaint in the master docket. Each plaintiff also completes a short form complaint to be filed under an individual docket number providing specific facts related to that plaintiff. The entry of an appearance, by counsel for a defendant in an individual action, acts as a general denial and preserves all affirmative defenses and cross claims, without the need to answer the short form complaint A defendant may choose to file preliminary objections (similar to a motion to dismiss). A defendant may join third party defendants only with leave of court. Special arrangements may be agreed upon for the filing and service of complaints. Pro hac vice admissions are liberally granted, but counsel will be required to complete a business privilege tax form and may be subject to city wage taxes.
Discovery - Generally, plaintiffs are required to complete an agreed upon form of fact sheet and defendants answer standardized interrogatories and requests for production of documents. Documents produced must be marked with a specific identification number. Generally, defendants’ documents are produced at a depository, but more recently plaintiffs have pressed for production electronically or on line. Plaintiffs generally are required to execute authorizations for the release of medical, employment, insurance and other records. Expedited procedures are utilized to obtain commissions for out of state depositions. Unless agreed otherwise, depositions of parties are generally required to be conducted in Pennsylvania. Pennsylvania does not allow depositions of experts as a matter of right, but in mass tort programs they are generally agreed upon at least for global experts. Depositions of global experts and corporate designees are generally coordinated by agreement with litigation in other forums.
Motions – The CLC strongly discourages motion practice and requires an effort to resolve disputes before filing motions. Special motion practice procedures utilized for mass tort cases can be found at http://courts.phila.gov./pdf/manuals/civil-trial/complex-litigation-center.pdf. Generally, motions are in letter form and have a short response time.10 The CLC has a goal of deciding global motions within 30 days and motions in individual cases within 2 weeks, but in practice decisions are more likely made within 30 to 90 days.
Trials – In new programs, the CLC has agreed to bellwether trials for an initial group of cases on dates certain when liaison counsel agree to a mechanism for the selection of cases. Otherwise, cases are tried in chronological order by date of filing. Cases are generally assigned a trial ready date at least a year in advance with discovery to close 90 to 120 days before the trial ready date. Trial lists appear in The Legal Intelligencer for a four week period prior to trial. Any case listed during a week may be called to trial on 24 hours notice and can be assigned to one of several judges. The Coordinating Judge may have several telephone conversations with counsel in the weeks before trial, especially where settlement is a possibility. Requests for continuance must be made in writing. Juries are generally selected without a judge present. In certain programs including the asbestos program, cases have been tried in groups of as many as ten cases. Asbestos cases are tried by "reverse bifurcation" whereby medical causation and damages issues are tried prior to the consideration of liability. The liability trial phases are generally non-jury trials.
Commerce Program
The Philadelphia Court of Common Pleas, Trial Division, established the Commerce Case Management Program ("Commerce Program") in 2000.11 This program, the only one of its kind in the Commonwealth of Pennsylvania, is designed to hear cases involving intracorporate disputes and disputes between two or more businesses, where the amount in controversy exceeds $50,000.00. The disputes may involve the Uniform Commercial Code, franchise relationships, trade secrets, non-compete agreements, business torts, intellectual property, securities transactions, corporate trust affairs, declaratory judgment claims against insurers and third-party claims against insurers, to name a few.12 The Commerce Program also handles certain major non-jury cases that are viewed as document intensive.13 Recently, the Committee of Seventy14 prepared a report regarding its survey and analysis of the Commerce Program. They concluded that the program has been successful in providing a forum for the "efficient, fair and cost-effective resolution of business litigation," and are optimistic that the program may help advance "Philadelphia’s economic competitiveness."15
As of March 2009, the judges assigned to the Commerce Program are the Honorable Albert W. Sheppard, Jr., the Honorable Mark I. Bernstein, and the Honorable Arnold L. New. The Program Administrator is Catherine Hart. Procedures and preferences vary slightly between the assigned judges, but general procedures are explained below.16
Development of Case Law – One goal of the Commerce Program is to develop a body of case law regarding commercial issues, thereby creating greater predictability in business transactions.17 To accomplish this goal, the judges assigned to the Commerce Program write opinions to support most of their decisions regarding substantive motions. The judges maintain their case opinions on the website, http://courts.phila.gov/common-pleas/trial/civil/commerce-program.html, thereby providing attorneys with easy access to court precedent to help assess their cases and their assigned judge.
Case Management - All of the cases are assigned to one of the three judges in the Commerce Program, who generally rules on all pretrial motions, including discovery motions, reducing the opportunity for inconsistent rulings, and helping the judge maintain a level of familiarity with the facts of the case.18 A mandatory Case Management Conference is conducted within ninety days of the filing of the complaint, at which the parties will discuss: 1) means for early disposition (such as Alternative Dispute Resolution, scheduling limited discovery to aid in early dispositive motions, or scheduling pre-discovery dispositive motions); 2) track assignment, schedules and deadlines for the case; and 3) potential use of a Commerce Program Judge Pro Tempore, who are attorneys who have at least fifteen years of trial experience concentrated in the type of litigation assigned to the Commerce Program. Judges Pro Tempore may be used for the supervision of all discovery or for mediation, upon the stipulation of all parties and approval of the Court.19
Pleadings – Pleadings are consistent with Pennsylvania practice, but plaintiff’s counsel must certify that an action is, or is not, subject to the Commerce Program on a cover sheet when the action is initiated. Defense counsel may dispute this designation by filing a Notice of Management Program Dispute, with a response being due in 7 days. The Administrative Judge decides such disputes, with no appeal available.
Discovery – Based on their complexity, cases are assigned firm dates for completion of fact discovery and trial readiness at the initial Case Management Conference limited to one of three tracks, expedited (6 months/13 months), standard (11 months/18 months) and complex (17 months/24 months). Plaintiff’s experts reports are due at the completion of fact discovery and defense reports due two months later. Consistent with Pennsylvania practice, depositions of experts for purposes of discovery are generally not allowed in the absence of an agreement by the parties.20 Dispositive and other motions are due shortly after expert reports, with a mandatory settlement and pre-trial conference following. While counsel are encouraged to resolve discovery disputes and can agree to the informal extension of deadlines, the motions deadline will not be extended absent the filing of a Motion for Extraordinary Relief and for good and compelling cause shown. There may be more flexibility with regard to the case management deadlines if a Judge Pro Tempore has been assigned to supervise discovery.
Motions – Motion practice is consistent with state and local rules and parties should follow the procedures of the Philadelphia Civil Motions Program and Discovery Court, but the motions will generally be decided by the assigned Commerce Program judge. Each of the judges hears argument on discovery motions in cases assigned to that judge once a week.
Trial – Trials practice is consistent with other civil cases in Philadelphia with the exception that the assigned judge who has heard pre-trial issues will also preside at trial. Pretrial Statements in accordance with Pa. R. Civ. P. 212 are due by the pre-trial conference which occurs at least a month before trial. At that conference, a Trial Scheduling Order is entered which includes deadlines for filing an exchange of stipulations, exhibits, designations of deposition testimony, trial briefs, and proposed findings of fact and conclusions of law or points for charge.
Alternative Dispute Resolution – When the parties agree to ADR, the Commerce Program may allow use of the "Abramson Protocols," which generally allow for binding arbitration whereby legal issues are determined by a three judge panel consisting of the judges assigned to the Commerce Program and factual issues are resolved by one or more arbitrators agreed upon by the parties. If this procedure is used, the parties submit a written request identifying the arbitrators and suggesting a proposed schedule and scope for discovery.21
Class Actions
Until recently, class actions filed in Pennsylvania were handled by either the Complex Litigation Center or the Commerce Program depending on the subject matter of the case.22 However, by at least March 2005, all class action cases were assigned to the Honorable Mark I. Bernstein, who was identified as Class Action Team Leader at the Complex Litigation Center.23 In January 2006, Judge Bernstein was reassigned to the Commerce Program24 and new class action cases were being assigned to the Civil Motions Program. As of 2007, class actions brought on behalf of business entities or corporate shareholders are assigned to the Commerce Program, with all other class actions assigned to the Honorable Gary S. Glazer or Honorable Gary F. DiVito, who are the Civil Motions Program judges.25 Despite the administrative reassignment of class action cases, the general procedures outlined below remain the same.26
Pleadings – Pennsylvania requires a class action to be commenced by complaint and in a particular form. The case must be designated "Class Action" in the caption and contain averments of facts necessary to support the prerequisites of a class (Rule 1702) and to meet the criteria for certification (Rules 1708, 1709) under a separate heading entitled "Class Action Allegations."27
Case Management – A case management conference will be scheduled with the assigned judge within 30 to 60 days of the complaint being filed. Case management is generally divided into three phases: Resolution of Preliminary Objections,28 Class Certification Proceedings, and Post Certification Proceedings. Case Management Orders are generally issued for each phase after consultation with the parties regarding the proposed schedule.
Class Certification Phase - If a case survives preliminary objections (or no preliminary objections are filed), the Court will direct that an answer be filed to the complaint and ask the parties to meet and confer and to submit a proposed schedule for the class certification phase. Rule 1707 requires that a motion for class certification be filed within 30 days after the last required pleading although the Court may extend this time for cause shown. Rule 1707 also requires a certification hearing where testimony and other evidence is to be presented, although in practice the parties frequently agree to submit the class certification issue based on deposition testimony and exhibits. The standard Philadelphia Case Management Order anticipates that a motion for class certification will be filed, followed by discovery limited to class certification issues, followed by a response to the motion, a reply, and a hearing or oral argument. Discovery limited to class certification generally includes a schedule for the exchange of written discovery, depositions, expert reports and Frye motions, all preceding a certification hearing.29 An order denying class certification or decertifying a previously certified class is appealable as of right under Pa. R.A.P. 313. An order granting certification is not appealable as of right, but may be appealed on an interlocutory basis under Pa. R.A.P. 312.
Post Certification Phase – If a case survives through the class certification phase, an Order is entered defining the class and claims and identifying class representatives. Counsel are again directed to confer regarding a Case Management Order and to set deadlines for completion of fact discovery on substantive issues, expert disclosures (similar to Federal Rule 26 disclosures) and dispositive motions and proposed dates for a mandatory settlement conference, pre-trial conference and trial.
Contrasting Pennsylvania and Federal Rules – Pennsylvania’s class action rules are modeled on Federal Rule 23 and the Uniform Class Action Act, but contain some novel procedures. Rules 1702 and 1708 listing the prerequisites to a class action do not adopt a "superiority" requirement. Rules 1702(5) and 1708 impose a requirement that a class action be a fair and efficient method for adjudication on all class actions and add two criteria beyond Rule 23(b) to this analysis: Rule 1708(6) - whether the claims are insufficient in amount to support individual actions considering the complexity of issues or expenses of litigation; and Rule 1708(7) - whether the amount likely to be recovered by individuals in a class action justifies the effort and expense of a class action. Rule 1711 does not allow for mandatory, non-opt-out classes, but provides for an opt-in procedure. Rule 1712 requires notice to the class in all class actions, but individual notice is permissive and the defendant may be required to cooperate in minimizing the expense of notice by allowing the use of its established methods of communication with class members. Rule 1716 identifies five factors to be used in considering an award of counsel fees.30
1 www.courts.state.pa.us/Index/Aopc/Research/caseloads/2004Report.pdf (reporting more cases filed in 2004 in Philadelphia than in Pennsylvania’s other 66 counties combined). Pennsylvania has a Unified Judicial System, but local procedural rules and programs vary significantly. Information on Pennsylvania’s Unified Judicial System and copies of local rules are available at http://www.courts.state.pa.us/ or http://www.aopc.org/.
2 National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004," http://courts.phila.gov./pdf/report/NSCS-Civil-Final-Report.pdf, in part, citing John Goerdt, et al., "Litigation Dimensions: Torts and Contracts in Large Urban Courts, " State Court Journal (Vol. 19, No. 1, 1995), Appendix 8.
3 National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004," http://courts.phila.gov./pdf/report/NSCS-Civil-Final-Report.pdf.
4 http://www.atra.org/reports/hellholes/2004/.
5 http://www.atra.org/reports/hellholes/report.pdf. ATRA was founded in 1986 by the American Medical Association and the American Council of Engineering Companies and describes itself as "the only national organization exclusively dedicated to reforming the civil justice system." See http://www.atra.org/about/.
6 The CLC also administers the Major Non-Jury Docket,
7 http://courts.phila.gov/pdf/manuals/civil-trial/complex-litigation-center.pdf; http://courts.phila.gov/pdf/manuals/Civil-Administration-At-A-Glance-2005-2006.pdf. Baycol and Latex Glove remain as listed Mass Tort Programs as of April 2006, but Baycol has only one case remaining and the Latex Glove program is stayed pending bankruptcy proceedings.
8 http://courts.phila.gov./pdf/report/NSCS-Civil-Final-Report.pdf.
9 The sections in this article on pleadings, discovery, motions and trial are based on the experiences of lawyers at Daller Greenberg & Dietrich LLP and references cited elsewhere in this article including Civil-Administration-At-A-Glance-2005-2006; National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004;" and 2004 Annual Report of First Judicial District of Pennsylvania.
10 But see Davies v. Southeastern Pennsylvania Transportation Authority, 2004 WL 3021389 (Pa.Cmwlth.) (remanding because the Revised Mass Tort Motion Procedures allowing only seven days to respond to a motion for summary judgment was at odds with and substantially less than the thirty days permitted by Pa. R. Civ P. 1035.3.)
11 This overview is not intended to cover the detailed requirements of the program, which can be found in "Philadelphia Court of Common Pleas Trial Division – Civil, Administrative Docket 02 of 2003, In Re: Commerce Case Management Program," http://courts.phila.gov/pdf/regs/2003/cptad02-03.pdf.
12 A complete list of the cases heard can be found in Administrative Docket 02 of 2003, as well as a list of cases that are not included.
13 See Supplemental Notice to the Bar re Non-Jury Program, http://courts.phila.gov/pdf/notices/2003/notice-09mnsup-03.pdf, and National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004."
14 A "not-for-profit, non-partisan political watchdog dedicated to advancing good government for the city of Philadelphia and the surrounding region." http://www.seventy.org/
15 Committee of Seventy, Study and Analysis of The Philadelphia Commerce Program, January 2005, available at http://www.seventy.org/Downloads/Policy_&_Reform/Governance_Studies/2005_Study_and_Analysis_of_Philadelphia_Commerce_Program.pdf.
16 The sections in this article on case management, pleadings, discovery, motions and trial are based on the experiences of lawyers at Daller Greenberg & Dietrich LLP, information available on the Court’s website at http://courts.phila.gov./common-pleas/trial/civil/commerce-program.html, and references cited elsewhere in this article in including Civil-Administration-At-A-Glance-2005-2006; National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004;" and 2004 Annual Report of First Judicial District of Pennsylvania.
17 National Center for State Courts, "Civil Programs in the Philadelphia Court of Common Pleas, Final Report September 2004." (also noting as a negative aspect of this approach a delay in decisions due to the time taken to write opinions).
18 This goal is sometimes hampered by the reassignment of judges to and from the Commerce Program.
19 See http://courts.phila.gov./pdf/cpcvcomprg/judgesprotemlist.pdf for a list of possible Judges Pro Tempore.
20 But see Farda v. Chelsea Property Group, Inc. (4/24/06 Phila. CCP, J. Bernstein) (granting motion to depose experts under Rule 4003.5(a)(2) where factual basis for expert’s opinion not fully identified in report).
21 http://courts.phila.gov./pdf/cpcvcomprg/Protocols.pdf.
22 Those types of cases assigned to the Commerce Program were identified in an Administrative Order, "Philadelphia Court of Common Pleas Trial Division – Civil, Administrative Docket 02 of 2003, In Re: Commerce Case Management Program," http://courts.phila.gov/pdf/regs/2003/cptad02-03.pdf.
23 http://courts.phila.gov/pdf/manuals/Civil-Administration-At-A-Glance-2005-2006.pdf.
24 Judge Bernstein replaced the Honorable C. Darnell Jones, II, who was elected President Judge of the Philadelphia Court of Common Pleas on January 10, 2006.
25 Class action opinions written by the Commerce Program and Judge Bernstein are available at http://courts.phila.gov./opinions.html. Select either the Civil - Commerce Program or Civil - Class Action.
26 The sections in this article on pleadings, case management, preliminary objections, class certification proceedings and post certification proceedings are based on the experiences of lawyers at Daller Greenberg & Dietrich LLP and references cited elsewhere in this article including Civil-Administration-At-A-Glance-2005-2006 and the Philadelphia Court of Common Pleas website.
27 Pa. R. Civ. P 1703, 1704. Pennsylvania state rules pertaining to class actions are separately set forth at Pa. R. Civ. P. 1701-1716.
28 Preliminary objections are similar to motions to dismiss. In class action cases, they are often used to limit the causes of action alleged and narrow the issues. Defendants should carefully consider whether preliminary objections are in their best interest since they sometimes serve only to narrow the class increasing the chances of class certification.
29 Defendants frequently file dispositive motions along with Frye motions.
30 Pennsylvania Rules of Civil Procedure 1701-1716; Federal Rule of Civil Procedure 23; Philadelphia Court of Common Pleas Civil Practice Manual (12th ed. 2005) "Class Actions," (chapter author Burt M. Rublin, Esquire) (without citations).
