JOINT MEETING OF THE STATE CIVIL, RULES AND PROCEDURES,
MEDICAL LEGAL AND COMPULSORY ARBITRATION COMMITTEES
November 3, 2004
MEDICAL LEGAL AND COMPULSORY ARBITRATION COMMITTEES
November 3, 2004
The combined meeting of the Rules and Procedures/State Civil Committee and Medical Legal Committee and Compulsory Arbitration Committee was called to order at approximately 12:15 p.m. by Co-Chair, Kathleen D. Wilkinson, of the Rules and Procedures/State Civil Committee.
- Report of Interim Executive Committee for the State Civil Committee Litigation Section for the Nomination of Officers for 2005
Kathleen Wilkinson provided a brief history and procedural posture regarding the formation of the State Civil Litigation Section and the Interim Executive Committee of the Section chaired by Richard S. Seidel, Esquire. Ms. Wilkinson confirmed that Board of Governors has approved the Bylaws of the State Civil Litigation Section. Ms. Wilkinson emphasized that a special joint meeting of the Interim Executive Committee, formerly known as the State Civil Litigation Task Force, was held for the purpose of submitting names for nomination as Officers of the State Civil Litigation Section. As a result of that meeting, the following persons were submitted to the membership for Officers positions for 2005:
Ronald Kovler, Co-Chair
Rudy Garcia, Co-Chair
Richard S. Seidel, Treasurer
Kathleen D. Wilkinson, Secretary
Ms. Wilkinson explained that there were no further nominations and that the nominations were unopposed. There shall be a vote at the Dec. 1, 2004 Annual Meeting of the State Civil Litigation Section and Combined Meeting of the State Civil/Rules and Procedure, Medical Legal and Compulsory Arbitration Committees confirming the nominations.
- Recap of Justice Sandra Schultz Newman Address at Oct. 4, 2004 Meeting
Bob Szostak commended Justice Newman for her dynamic presentation during the Joint Meeting of the State Civil Committee and Medical Legal Committee on Oct. 4, 2004 attended by several Judges, Chancellor Gabriel L. Bevilacqua, Chancellor-Elect Andrew Chirls and Vice Chancellor-Elect, Alan M. Feldman and a packed seminar room of bar leaders, past, present and future. Justice Newman addressed multiple topics involving medical professional liability reforms with emphasis on the many Rule changes affecting Venue, Certificate of Merit, Mediation, Expert Reports, Scheduling, Juror Note Taking, Separate Damages Findings, Jury Instructions on Non-economic Losses and Remittur for Claims Excessive Non-economic Loss Damage Awards. Joe Boardman asked that the Committee follow-up on Certificate of Merit issues. Both Judge Moss and Judge Manfredi commented on Statewide professional medical judicial educational programs on new laws and reforms.
- Petitions for Extraordinary Relief
Judge Manfredi addressed the Committees explaining that for complex cases on a 24-months track, 10% to 20% of the cases are extended to a 20 to 30 month period, evidencing that many Petitions are granted. It was emphasized that where Petitions for extension of deadlines are needed, it is essential to make it clear that the parties are not extending the trial deadline. Scope of review, it was noted, is governed by the reasonableness or unreasonableness of the request. Judge Moss commented that requests for relief must be based on extraordinary circumstances - something nobody could have anticipated. Examples would include added parties, additional diagnoses, unexpected surgery, absence of expert witness (death/out of jurisdiction), and/or consolidation of a case with another case. Judge Moss stressed that attorneys must be reasonable regarding the time requested. For example, ask for 60 days, not 120 days to locate a witness. She concurs that Petitions for extension must stress that an extension of the trial date is not being sought. Judge Moss observed that the Court looks at the big picture. Under a domino theory, if too many extensions are granted, the system backs-up.
Tom Hurd then raised the issue in the context of cases on 12-month and 18-month tracks. He noted that in two cases, his request for extension was denied when he did not seek an extension of the trial date. In one case, there was difficulty scheduling a witness before getting an expert report. The request was uncontested yet denied. In the other case, an out-of-state deposition had to be accomplished. Judge Moss recommended, under those circumstances, that a Petition for Reconsideration be filed emphasizing that all parties agree, setting forth the basis for extraordinary only. She also noted that she would entertain a 10 or 15 minute conference in her chambers. Judge Manfredi commented that attorneys need to know the practice of each of the four Team Leaders. He stressed that professional, informal agreements among counsel without Court involvement should be encouraged. Alan Herman voiced concern over non-complex cases where there are shorter and overlapping discovery, expert and trial deadlines. Typically, there are only 9 months within which to accomplish pretrial proceedings. The Case Management Conference does not occur until 3 months out. It fosters a difficult environment. Mr. Herman endorsed the concept that parties be afforded 30 days after discovery to submit expert reports. Judge Moss suggested that if the parties believe the case is on an inappropriate track, they could motion to change the track. Judge Manfredi then commented that as a result of the recent review by the National Center for State Courts, it has been recommended that a discovery plan should be part of every case.
- Sept. 4, 2004 Final Report of National Center for State Courts on Civil Programs in the Philadelphia Court of Common Pleas
Judge Manfredi informed the Committees that the Report is on the Courts Web site. He drew attention to the conclusion that the Philadelphia Court of Common Pleas Management Programs are among the finest and most successful for any of the urban trial courts in the country. Our local civil caseflow system was deemed exemplary. With great pride and enthusiasm, Judge Manfredi stressed that we went from one of the worst systems in 1992 to one of the best in 2004.
There will be focus groups formed because of concern over the present inventory, 47% of which is mass tort involving 12,000 to 15,000 cases. In addition, 5,000 to 6,000 major cases plus arbitrations and statutory appeals in the inventory.
It was decided that the Dec. 1, 2004 meeting of the Committees would be reserved to address this Report in detail.
- Discovery Court - Memos of Law
It was confirmed that no Memorandum of Law is required for Philadelphia Discovery Motions. Judge Manfredi pointed out that this is published on the Courts Web site. Attorneys must use the Web site to know the Local Rules.
- Concerns Regarding Ad Hoc Rule Changes
Joe Foster stressed that the thoughts of our group have been brought to the State Civil Rules Committee. He noted that Judge Manfredi knows a lot about our problems and is protecting the Philadelphia Bar Association and Court interests as a member of the Committee. Per Judge Manfredi, it was echoed that Joe Foster, as Vice Chairman is also voicing the interests of the Philadelphia Bar. A discussion was then developed on a possible rule change involving the desire of certain corporations to practice without attorneys (i.e., landlord vs. tenant).
- ABA Proposed Jury Trial Standards
Ruby Garcia informed the Committees about the proposed jury trial standards contemplated by the ABA Civil Litigation Section. A draft report has been circulated and is still under review. Under the proposal, jurors will be allowed to discuss evidence before they deliberate. Other recommendations included providing the jury with a written charge. Mr. Garcia emphasized that many have challenged this idea because jurors could focus on a single instruction as opposed to the charge as a whole. By providing written instructions, jurors would likely lose focus. Judge Bernstein noted that these proposed standards may pass in some form at the February ABA House of Delegates Meeting. It was noted that some of the changes are not tethered to reality. Another change discussed was allowing Judges to place time limits on trials. The recommendation to permit jurors to question Judges and witnesses was apparently rejected. Further, while a notation that unanimous verdicts are not necessary in civil cases, the standard was not endorsed for criminal cases. There is no 12-juror mandate for civil cases. Juror note taking has received favor. Finally, peremptory strikes have been deemed essential for a fair jury trial.
There being no further business and no new business raised, the meeting was adjourned at approximately 1:15 p.m.
ROBERT T. SZOSTAK
Nov. 3, 2004