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PCCJR Update — January 14, 2020

False Claims is a Bi-Partisan Threat ** PCCJR Amicus Brief Program ** The MOST Frivolous Lawsuit ** 

Push to Enact False Claims Act is a Bi-Partisan Threat

Rep. Seth Grove, Attorney General Josh Shapiro, and a bipartisan group of House and Senate members held a press conference on Monday, January 13 to advocate for enactment of a False Claims Act in Pennsylvania. This effort follows closely on the heels of a report issued by the House Government Oversight Committee which recommends adoption of a False Claims Act.

A False Claim Act has a strong appeal to many legislators who do not fully understand how it operates and are merely told that the Commonwealth will recoup money from medicaid fraud and abuse. PCCJR has reported on why this proposal is very harmful to good actors in business and the health care industry.

PCCJR will be working to educate legislators about the pitfalls of a False Claims Act and why Pennsylvania is better off continuing to allow cases to be brought under the federal act. Legislators need to understand that by the time the qui tam (relator, bounty hunter) plaintiff receives a substantial percentage of the state’s recovery, Pennsylvania will recoup less money than had it never enacted a state False Claims Act!

If you are concerned about the impact of a state False Claims Act and would like to help our effort to make sure legislators are well informed on this issue, please contact PCCJR Executive Director Curt Schroder at 717-461-3577 or curt@pccjr.org. 

PCCJR Launches Amicus Brief Program

The Pennsylvania Coalition for Civil Justice Reform, joined by the Pennsylvania Bankers Association, the National Federation of Independent Business, and the Insurance Federation of Pennsylvania (the “Associations”) filed an amicus curiae brief in the Pennsylvania Supreme Court in the case captioned Commonwealth v. Chesapeake Energy Corp. and Anadarko Petroleum Company, et al., Nos. 81 & 82 2019. In this case, the Attorney General invoked the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“Consumer Protection Law”) to challenge natural gas leasing activities of Chesapeake and Anadarko and to pursue antitrust claims and remedies against the companies for violations of the state law. Commonwealth Court sided with the Attorney General’s position, and the Pennsylvania Supreme Court accepted the companies’ appeal.

The Associations support the natural gas companies and offered the Court additional perspectives given that the decision on appeal implicates business and commercial transactions beyond the oil and gas context. On the first question involving the Consumer Protection Law, the Associations agreed with the companies that the statute only applies to protect buyers in consumer transactions. A broader reading like the one endorsed by the Commonwealth Court gives the Attorney General authority to challenge any commercial activity involving any individuals or businesses if he or she believes the transaction is somehow unfair or deceptive to one of the parties. As a result, the court’s decision exposes the business community to new threats of lawsuits brought by the Attorney General and private individuals to challenge any commercial transactions as a violation of the statute, a particularly concerning result in light of Gregg v. Ameriprise, in which a panel of the Superior Court (erroneously) created a new “strict liability” standard under the statute’s “catch-all” provision.

On the second question involving antitrust, the Associations reiterated the fact that the General Assembly has not enacted an antitrust statute. Therefore, the Attorney General only has authority to pursue antitrust claims and remedies under federal law and procedure, not under the Consumer Protection Law. The Commonwealth Court improperly made a policy choice reserved for the General Assembly by changing the well-settled legal framework in Pennsylvania that limits the Attorney General’s authority to pursue antitrust claims and remedies under federal law in federal courts. In addition, the Associations pointed out that, in the wake of the Commonwealth Court’s decision, the Attorney General proposed regulations that members of the business community and the Independent Regulatory Review Commission strongly opposed as exceeding the scope of the Attorney General’s authority under the Consumer Protection Law.

Finally, the Associations explained how the Commonwealth Court’s decision on both issues affects the business community. For example, the court’s decision (a) changes the legal framework in a way that makes it difficult for businesses to conform their behavior to settled law; and (b) creates an intolerable level of uncertainty in the statutory and regulatory framework in the Commonwealth that discourages economic investment and encourages reallocation of investments in other states where the rules are more well defined.

Other amici weighed in, including the Marcellus Shale Coalition, Pennsylvania Independent Oil & Gas Association, and the American Petroleum Institute (carrying the banner for the oil and gas industry) and the U.S. and PA Chambers of Commerce (echoing much of the Associations’ arguments and additional concerns the court’s decision below engenders for the business community).

PCCJR looks forward to taking the lead in additional amicus brief filings in 2020.

And the MOST Frivolous Lawsuit is…

We are in the midst of Awards Season. Not to be outdone, our friends at the U.S. Chamber Institute for Legal Reform bring us this winner in the Most Ridiculous Lawsuit category:

A lawsuit over the tiny amount of lip balm at the bottom of the tube glides to the number one spot on the U.S. Chamber Institute for Legal Reform’s 2019 list of the most ridiculous lawsuits.

Every year, thousands of frivolous lawsuits are filed across the U.S., but only 10 make ILR’s annual list. This year’s list includes lawsuits over labeling on vegan butter, Popeye’s chicken sandwiches, and a poster advertising the television show “Dexter.”

ILR asked followers of the Faces of Lawsuit Abuse Facebook page to pick which lawsuit they thought was the most ridiculous. People were most chapped by a woman who sued Blistex, claiming the lip balm isn’t actually .15 ounces because it’s hard to get the balm at the bottom of the stick!

ILR also released two short, fun videos asking people in New York City which lawsuit they thought is the most ridiculous lawsuit of the year. Check out all the videos for this year’s most ridiculous lawsuits at FacesOfLawsuitAbuse.org.

ATRA’s Sherman “Tiger” Joyce is Guest on Lawsuit Watch!

On this month’s Lawsuit Watch, Tiger Joyce joins PCCJR Executive Director, Curt Schroder, in a discussion on Philadelphia being named the #1 Judicial Hellhole in America! You can listen to the podcast here.

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PCCJR Update — April 30, 2019

Medical Liability: A Threat * Necessity Defense * In the News

Medical Liability: A Threat to PA Health Care, Even if Venue Rules Don’t Change

While the proposal to allow venue shopping in medical liability cases has garnered most of the attention recently, new studies show that health care professionals in Pennsylvania are already suffering under onerous medical liability burdens compared to providers in other states.

LeverageRx compiled data from the National Practitioner Data Bank and found that Pennsylvania was second only to New York in total medical liability payouts and in payouts per capita in 2018. Pennsylvania paid claimants $369,034,250. Here is a look at the five states paying the most in medical liability payouts in 2018: [Read more…] about PCCJR Update — April 30, 2019

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PCCJR Update — February 25, 2019

Venue Change Decision Delayed * Deeper Concerns About Rule Change Exposed * PCCJR Debates PA Association for Justice

Venue Change Decision Delayed… For Now

In a Valentines Day present to health care practitioners and patients, the Pennsylvania Supreme Court announced it would delay consideration of changing the venue rules for medical malpractice cases. In announcing the decision, the court said it would wait until after the Legislative Budget and Finance Committee completes a study on whether a change is needed, and the implications of any such change. That report should be completed by January 1, 2020.

“The decision by the Supreme Court is a welcome development,” said PCCJR Executive Director Curt Schroder. “A change of this magnitude should not be made without due diligence.”

Since announcing the potential venue rule change just before the Christmas holiday, PCCJR and its coalition partners have held news conferences, made media appearances, written letters and opinion editorials, testified before the legislature, and reached out to its broad constituency to rally opposition to the proposed change which would return venue shopping to medical malpractice cases. In the early 2000s, jackpot jury awards and frivolous malpractice lawsuits drove up medical malpractice insurance premiums to such levels that seriously threatened Pennsylvanians’ access to health care. In response, a new venue rule was enacted to require medical liability lawsuit to be brought only in the county where the cause of action arose. This change made malpractice insurance more affordable and returned patient access to health care and services.

In the weeks since the potential rule change was announced, hundreds of comment letters in opposition to the rule change were sent to the little-known committee the Supreme Court assigned to address the proposed change. Editorials have also cropped up in publications like the Reading Eagle and Penn Record questioning why this issue was being raised and the fact that the process would proceed largely out of public view.

PCCJR and its members have been active and vocal over the last eight weeks. We want to thank everyone who did their part calling attention to this important issue. While the delay is an interim victory for PCCJR and our partners, it is fair to say the debate is far from over. Staying engaged and sharing information within your circles of influence will be essential to the long-term effort to protect Pennsylvania health care and protect the current venue rule which has worked well and kept needless cases out of high verdict jurisdictions such as Philadelphia.

Forbes Article Exposes Deeper Concerns About Rule Change Proposal

Five lawyers, including the chair of the Supreme Court’s Civil Procedure Rules Committee, work at firms that file medical malpractice cases in Pennsylvania, according to a report in Forbes. That same report, which looked into the proposed venue rule change, also found that lawyers at these firms gave heavily to a PAC that spent millions on the 2015 state Supreme Court races. That was the year when three trial bar supported Supreme Court candidates won and significantly altered the balance on the Supreme Court.  Read the Forbes article here.

PCCJR Debates Rule Change with PA Association for Justice

Just one day before the Supreme Court announced it would delay it’s decision on the proposed venue rule change, PCCJR’s Executive Director Curt Schroder debated lawyer Cliff Rieders, representing the PA Association for Justice on WITF’s Smart Talk. The PA Association for Justice is a trial lawyer association and advocates for the pecuniary interests of personal injury attorneys.

To say that this conversation, moderated by host Scott Lamar, was “lively” would be an understatement! You can listen to the full podcast replay here.

 

 

 

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PCCJR’s Curt Schroder speaks out on ‘Judicial Hellhole’ designation

“Every plaintiff wants to file in Philadelphia and every defendant wants to stay out of Philadelphia at all costs.”

PCCJR Executive Director Curt Schroder was recently featured in a video focusing in on the Pennsylvania city’s 2017-2018 designation as a “Judicial Hellhole” by the American Tort Reform Association (ATRA). “I always say the fastest growing part of the economy in Philadelphia is litigation tourism.” That is exactly what landed the “City of Unbrotherly Torts” back on the ATRA list of shame after out-of-state mass tort filings surged, along with multi-million dollar verdicts.

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Listen Inaugural Broadcast of Lawsuit Watch

February 23, 2018|WFLY Radio

This month WFYL Radio premiered the broadcast of Lawsuit Watch; a 30-minute program dedicated to exploring the impact of lawsuits on individuals, Pennsylvania, and our economy. In our inaugural broadcast, we discussed recent efforts in Pennsylvania to end lawsuit abuse, Philadelphia’s status as a “Judicial Hellhole” and the current system of electing judges in Pennsylvania.

Listen to the full podcast here!

Lawsuit Watch airs on the fourth Monday of every month at 8:30 am on WFYL 1180 am. WFYL broadcasts live over the web and will post the program as a podcast after each airing.

 

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Philadelphia’s ‘Hellhole’ status up for debate, but group points at huge Xarelto verdict

The Penn Record

by Nicholas Malfitano |Dec. 21, 2017, 12:19pm

HARRISBURG – A recent, massive Philadelphia verdict that bucked a small national trend shows the city’s court isn’t treating businesses fairly, Pennsylvania’s legal reform group says.

But the Philadelphia Bar Association disputes the assertion that the city is a “Judicial Hellhole” – a title given annually by the American Tort Reform Association to jurisdictions it deems problematic for companies.

The verdict – the first reached in Philadelphia’s Complex Litigation Center, which is handling more than 1,500 cases over the blood-thinner Xarelto – was the first win nationally for plaintiffs and included a whopping punitive damages award.

“After three verdicts for the defense in the federal court Xarelto bellwether trials, the Philadelphia court awarded $27.8 million to a Xarelto plaintiff,” said Curt Schroder, the executive director of the Pennsylvania Coalition for Civil Justice Reform.

“Of that amount, only $1.8 million was awarded to compensate the plaintiff for alleged injuries. The punitive damages awarded in the amount of $26 million were 14 times the amount of compensatory damages.

“No one wants to be sued, but to be sued in Philadelphia often subjects a defendant to outlandish and unreasonable damages.”

Schroder stated 85 percent of businesses responding to a U.S. Chamber Institute of Legal Reform report indicate that a state’s lawsuit climate is “an important factor in deciding where to locate and grow their businesses.

The same report saw Pennsylvania rank 38th out of 50 states in litigation climate, with medical malpractice payouts in Pennsylvania being among the highest in the nation on a per capita basis. The ILR owns the Pennsylvania Record.

Earlier in December, ATRA named the city a Judicial Hellhole, focusing on Philadelphia’s CLC. The state Supreme Court is also an area of concern for ATRA.

“The ATRA Judicial Hellholes report is a stark reminder that in Pennsylvania, employers and health care providers still face an uphill struggle in court, especially in the Philadelphia County Court of Common Pleas,” Schroder said.

“The findings in this report are consistent with other studies that have been critical of the impact of Pennsylvania’s courts on job creation and health care availability.”

The CLC has long been a haven for out-of-state plaintiffs. The percentage of claims belonging to out-of-state plaintiffs has traditionally been in the high 80s. In 2016, the percentage for pharmaceutical lawsuits dropped to 74 percent.

However, in 2017, CLC stats show that figure has jumped to an unprecedented 94 percent.

Currently, more than 6,400 cases have been filed in the Risperdal mass tort litigation in Philadelphia and more than 1,560 cases in Xarelto mass tort litigation.

Schroder says it begs the question of why the suits were filed in Philadelphia County, as opposed to York County, Lancaster County or Tioga County instead.

“If Pennsylvania has jurisdiction, then certainly plaintiffs attorneys could bring suit in other parts of the state. The obvious answer is that in most counties other than Philadelphia, a defendant still has a reasonable chance at winning or a reasonable verdict if found liable. Filing suit outside of Philadelphia would not be a lucrative payday for the attorney,” Schroder said.

On the opposite side of the spectrum, Philadelphia Bar Association Chancellor Deborah R. Gross issued a statement criticizing the ATRA report on behalf of the organization, which numbers 12,000 attorney members among its ranks.

“We condemn this unwarranted and degrading attack on our courts, which undermines public confidence in our judicial system. Philadelphia’s courts are among the finest in the country,” Gross stated.

Gross explained per the 2016 First Judicial District Annual Report, approximately 90 percent of civil cases filed in Philadelphia were disposed within 24 months of their initial filing.

“Innovative programs, such as the Mortgage Foreclosure Diversion Program, Veterans Court, Mental Health Court and Project Dawn have been introduced to address the economic and social problems that plague our city. The Commerce Court program has a well-deserved excellent reputation for its expert handling of business disputes in a timely fashion, with 94 percent of its complex cases being disposed within 24 months of initial filing,” Gross said.

Gross also pointed out the court’s Complex Litigation Center (CLC) had 6,196 total cases pending in 2016, with 5,601 of them being pharmaceutical cases and 595 being asbestos cases.

“These court programs and others serve as models that other court systems seek to emulate. Each year, thousands of Philadelphians – individuals, businesses, plaintiffs and defendants – rely on our courts to deliver fair and speedy justice,” Gross said.

“This special interest group is entitled to its opinion. However, words matter and so do perceptions. The attempt to diminish faith in our judicial system is an attack on our democratic process.

“As guardians of justice, it is our responsibility as lawyers to protect and defend the courts against this unwarranted and baseless label.”

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

https://pennrecord.com/stories/511297257-philadelphia-s-hellhole-status-up-for-debate-but-group-points-at-huge-xarelto-verdict

[Read more…] about Philadelphia’s ‘Hellhole’ status up for debate, but group points at huge Xarelto verdict