As reported earlier this month in LegalNewsline, Crane Co., a frequent defendant in asbestos cases brought in Philadelphia County courts, submitted a statement to the Court of Common Pleas arguing against the County’s use of a procedure known as “reverse bifurcation” in which juries determine damages first and liability second. In the statement, which was made public in July of 2010, attorneys for the company argued that the procedures used for resolving asbestos claims before the Complex Litigation Center are outdated, citing research by behavioral scientists from the University of Colorado indicating that reverse bifurcation trials tend to prejudice defendants.
As reported, according to the statement, “[t]he conclusions reached by these prominent behavioral scientists should come as no surprise to a Pennsylvania jurist…since the Superior Court has at least thrice expressed concern over jury sympathy occasioned by hearing evidence regarding the severity of a plaintiffs’ [sic] injury before liability is assessed.” The statement further points out that “[i]n a reverse-bifurcated trial, the jury begins its service by hearing a one-sided presentation of the injuries and suffering caused by a terminal cancer while the defendants are effectively silenced” and that “[b]y the time the ‘liability’ phase starts, when defendants are entitled to present a true defense, the plaintiffs have already secured an award of damages, substantial sympathy, and a finding that some defendant’s asbestos-causing product is to blame.” At that point, according to the statement, “[a]ll that remains is to ‘pin’ that blame on some or all of the trial defendants.”
Crane Co. is not the only products liability defendant to oppose the use of reverse bifurcation—representatives of the tobacco industry have also claimed that the procedure unfairly prejudices defendants. However, certain products liability defendants have welcomed the use of reverse bifurcation, such as makers of the diet drug Fen-phen, who have cited the procedure as an efficient means of dismissing claims by malingering defendants. “Our secret is very simple,” an attorney for American Home Products (now Wyeth Pharmaceuticals), Fen-phen’s manufacturer, observed in 2005. “Most of these plaintiffs are fine. In every single case that’s gone to trial, the plaintiffs are seven, eight or nine years [past when] they last used the drug and do not have a single perceptible symptom.”
Whether Crane’s statement will have any effect on the procedures employed during asbestos trials in Philadelphia remains to be seen, but one thing seems certain; how a jury hears a case — putting aside the facts and the law – often makes a big difference in who wins and who loses at trial.
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