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Mazer Moss responds to CLC 'plaintiff friendly' criticism

By Michael P. Tremoglie | Jul 3, 2012

Mazer Moss

Four months after a leadership shakeup at the First Judicial District courts, Judge Sandra Mazer Moss reflected on criticism she faced as coordinating judge of Philadelphia's Complex Lititgation Center (CLC).

Mazer Moss said local rules she established at the CLC were designed to bring order to a "chaotic" mass torts and asbestos docket.

Critics, however, have not been impressed with the court's innovations.

One of the most controversial local rules created by Mazer Moss - reverse bifurcation - was permanently eliminated in February by Common Pleas Court Administrative Judge John W. Herron. Reverse bifurcation, a process in which trials are separated into two phases - damages first, then liability - was deemed unfair to defendants.

Herron also assigned Common Pleas Court Judge Arnold New as co-coordinating judge of the CLC, along with Mazer Moss.

In a phone interview conducted June 20, Mazer Moss was asked about a perceived bias in favor of plaintiffs at the CLC, the new policies put in place by Herron and statements made by her colleague about the profitability of the courts

Legal Newsline: The complaint among defendants is that Philadelphia is a plaintiff friendly venue, hence the large number of out-of-state filings for mass tort cases. The response by the plaintiff bar is that Philadelphia provides efficient and effective justice. Why do you think there are a high number of filings in this court?

Mazer Moss: I think that we really do have an efficient case management system in Philadelphia. The National Center for State Courts named us the most efficient urban civil court in the United States.

I meet with the attorneys - every one of the programs I run - monthly. We sit around the conference tables in my office. I ask them to tell me what is on their minds, tell me what we can do. Because I meet with the attorneys and we have issues, I think we are able to solve a lot of things. Discovery motions are a lot less than other places because of this.

(Legal Newsline attempted to locate data to substantiate if discovery motions are less in the CLC and mass tort programs, but was unable to do so).

We have a Discovery Master chosen by attorneys, not me - usually a retired judge - who is an arbitrator or a professional mediator. We do not use them in every single program. We have them when they are needed. But they do keep the expense of discovery reduced. Because even though they do not work for free and the cost is shared by everyone. Ultimately, the motions are done once in a global fashion.

Legal Newsline: There was a recent study by Joshua D. Wright, a law and economics professor at George Mason University School of Law in Virginia. He said that there are "systemic biases" in Philadelphia's civil courts that attract plaintiffs with little or no connection to the city. The result, according to the study, is "disproportionate litigation and verdicts relative to other courts." What is your response to this study?

Mazer Moss: I think that you have to take into account how many factories using asbestos and how many pharmaceuticals firms that were or are in Philadelphia that give us venue.

There was so much asbestos used in industrial activity here. It is not unusual for a lot of asbestos cases to be tried in places where there was a lot of exposure to asbestos because of industrial activity - places like Mississippi.

You also have to look at the appellate law. As judges we are in the business of being fair. It does not pay for people to spend time and money only to have to start over again after being reversed.

One thing that is unique is that the CLC has judges who are experts in the field and rulings become consistent. The trial judges are expert in what they are doing because they have been doing it for a long time.

I am concerned with the efficiency and that both sides get even treatment. You have companies that are in danger of going bankrupt. It was terrible for so many companies to go bankrupt. My objective is that the people who should be compensated be compensated and that once a program is completed, the companies stay economically strong.

On the other hand, there are certain other venues that are also good at what they do.

Legal Newsline: Reverse bifurcation has been a controversial issue. A study by Professor Michelle J. White of the University of California, San Diego, regarding asbestos litigation (published in the Journal of Legal Studies in 200, said this was developed specifically for asbestos trials and that this procedural innovation favors plaintiffs. What do you think about this?

Mazer Moss: The funny part is it was developed for asbestos cases but it was requested by defendants. I think reverse bifurcation was a wonderful tool in its day.

I had been phasing it out for about a year. It was a good tool if you were dealing with causation. Now the cases are different - they always go into second phase. After causation was determined, a second phase was not needed.

When I took over in 1987 there was a backlog of 7,800 (cases) going back to 1975 - this was when I first became a lawyer. Defendants were going bankrupt at an alarming rate - so creative management was needed.

This is when I started meeting with the lawyers - because they knew more than I did. Reverse bifurcation and consolidation was developed in response to a real crisis.

But it is not needed anymore. Now we do not have the backlog and causation is not needed. Even when it is, the lawyers and the judges are more experienced now and the cases are disposed of quickly.

Legal Newsline: Judge Pamela Dembe said that out of state filings makes for a profitable court. But when I asked the FJD for a profit and loss statement for the CLC, they responded that they did not maintain such records. How did Judge Dembe know that more cases would bring in more money? Perhaps each case processed at the CLC loses money?

Also some have criticized Dembe's comment as being contrary to the interests of justice. For example, Prof. White wanted to know what is the judges' interest in doing this?

Should courts be in the business of making a profit?

Mazer Moss: What Judge Dembe said or meant is something you will have to ask her. I personally think we are in the business of dispensing justice.

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