Two of Philadelphia’s leading trial lawyers discussed the merits of proposed and recently adopted rules that affect product liability, medical malpractice and other cases involving torts during a visit to the law school on March 12.
Kline & Specter founding partner Shanin Specter and Lavin O’Neil partner Joseph O’Neil discussed the impact of numerous recent and pending changes in the way liability is determined in Pennsylvania courtrooms, including the level of analysis required to determine liability in product liability cases and the impact of the state’s Fair Share Act.
O’Neil predicted that the Pennsylvania Supreme Court will adopt a “foreseeability analysis” to be used in product liability cases, which will enable defense attorneys to introduce evidence about design considerations that were made in the development of products. Existing rules prevent companies from admitting evidence about safety standards that their products might meet or exceed, undermining the defense in product liability cases, O’Neil said.
But Specter argued that skillful defense attorneys manage to present favorable evidence and that there will be relatively minor impact if the state Supreme Court does indeed move from “strict” to “foreseeability” analysis in product liability cases.
Either way, Specter said, “a good product liability case is going to be successful.”
In contrast, the Fair Share Act has significantly reduced the number of liability cases that are tried in Pennsylvania, Specter said.
Under the law, individual defendants found to be less than 60 percent liable in civil cases bear responsibility for their proportionate share of a judgment. Previously, Specter said, defendants with deep pockets could be held liable for damages even if another party held a greater degree of liability.
The law represents “a more fair approach,” O’Neil said, noting that it mirrors the one in New Jersey.
Both attorneys said a change in procedural rules the Pennsylvania Supreme Court adopted in the last decade had a significant effect on the volume of medical malpractice cases in Philadelphia.
The rules, which require medical malpractice cases to be litigated in the county where the cause of action occurred, contributed to a 40 percent reduction in filings, Specter said.
Previous rules put an onerous burden on health-care providers, O’Neil said, citing the closure of 11 maternity wards in Philadelphia between 1997 and 2003.
Specter said, however, that medical malpractice claims are less to blame than the shifting economics of health care delivery, which have driven consolidation of services that have greatly affected neighborhood hospitals.
Just two-tenths of 1 percent of health care dollars are spent on medical malpractice cases, Specter said.
Though the attorneys have been courtroom adversaries on numerous occasions, they agreed that the limits Pennsylvania places on liability for drivers and for government entities pose serious burdens for injury victims and plaintiffs’ attorneys.
The discussion was sponsored by the Civil Litigation Society, Drexel Republicans, the American Constitution Society and the Health Law Society.