PCCJR Update – March 16, 2018

Trial Lawyers Scramble to a Preserve Pain Cream Profits; PA Supreme Court Makes Pa Businesses Vulnerable to Out of State Consumers; Do we really want to be a magnet for mass tort cases?

Lawyers, Cream and Money| Gov. Wolf’s biggest PAC donor includes money from secretive compounding pharmacies | Philly.com — You gotta read it to believe it! Click HERE

Trial Lawyers Scramble to Preserve Pain Cream Profits!

Legislation to create a workers’ compensation prescription drug formulary is a necessary step to end the over reliance on opioids in treating injured workers.  But this bill could be stopped because of confusion and false statements by the powerful, well-funded plaintiffs’ lawyer lobby. Trial lawyers are spending huge sums in the way of political mail, radio and Internet advertising to pressure House Republicans and Democrats to vote against Senate Bill 936.

There are numerous inaccuracies and deliberate distortions in their outreach, but the truth is in what they AREN’T SAYING. For Pennsylvania’s trial lawyers, the big push against S.B. 936 is all about protecting their revenue stream – not providing good health care outcomes that would also stop the death and destruction opioids have brought to our communities.

S.B. 936 was written to help injured workers get the medications they need to return to work while at the same time protecting them from abuse and over-utilization of pain medications, like opioids, and dangerous, non-FDA approved compounds. The health benefits of this bill were reflected in the overwhelming, bipartisan support it received in the Senate, where it passed by a vote of 34 to 16.

The Senate vote caught the trial bar’s attention. You see there are large, wealthy workers’ compensation law firms that also own pharmacies. Those pharmacies increase lawyers’ profits by dispensing outrageously expensive, unproven and dangerous compounded medications that do not have FDA approval according to the reporting of The Inquirer.

The facts are important. It is well established that injured workers are in danger of developing opioid dependency in Pennsylvania. Research by the Workers’ Compensation Research Institute has shown that out of 25 states studied, Pennsylvania is the second highest state for the number of opioid pills per claim and the second highest state in the number of opioid prescriptions per claim. The Workers Compensation Research Institute also found that long-term opioid use occurs in 1 of 10 injured workers in Pennsylvania, making them vulnerable to addiction.

Twenty-one states including Texas, Ohio and California have implemented similar formularies. Ohio implemented its formulary in 2011 and by 2017, the number of injured workers considered opioid dependent was reduced by half!

S.B. 936 follows the successful model used in other states by establishing an evidence-based prescription drug formulary for the workers’ compensation system. Such formularies are commonly used in many private and public insurance plans and provide appropriate, consistent, and high-quality medications. Under this model, the doctor and patient maintain control of treatment decisions. If there was any question about S.B. 936 coming between a doctor and patient, just look at the fact that health care professionals are not opposing this bill.

S.B. 936 is a logical response that also stands to impact Pennsylvanians in a very personal way by saving the lives of family members, loved ones and friends. That is why it is troubling that law firms fighting passage of S.B. 936 are making huge political contributions to protect their profits at the expense of injured workers!

Make no mistake; the forces working against S.B. 936 are working in the best interest of profits, not workers or families. When the House brings up S.B. 936, legislators must do what is right.

Injured workers deserve the best possible treatment and medication to address their injuries and get them healthy again. They don’t deserve to fall victim to dangerous, unproven treatments or preventable opioid addiction. Neither should pharmacies owned by law firms play on anyone’s earnest hope of recovery with unproven and expensive medications that do more to line the pockets of unscrupulous lawyers than nurse people back to health. 

Call your State Representative today! Tell them to vote YES on SB 936 to protect injured workers and stop the abuses by powerful lawyers!!

Click HERE for your House member’s contact information.  

PA Supreme Court Makes Pa Businesses Vulnerable to Out of State Consumers

The Pennsylvania Supreme Court’s recent decision in Danganan v. Guardian Home Services continues a disturbing trend of liability and litigation expansion that has evidenced itself since the election of three trial bar supported justices in 2015.

The court in Danganan held for the first time that an out of state customer can sue an in-state business for issues arising from out-of-state transactions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). In doing so, the Supreme Court rejected a line of federal court cases interpreting Pennsylvania law that held to the contrary.

Danganan contracted with Guardian Protection Services at his home in Washington D.C. and prior to the three-year term of the agreement, moved to California. Guardian continued to bill Danganan after the company was notified of the cancellation of the contract and related home protection services. Guardian cited the agreement’s authorization of ongoing charges through the contract’s term. Danganan filed suit in the Philadelphia Court of Common Pleas on behalf of himself and “all others similarly situated.” The case was removed to federal court on diversity jurisdiction.

The District Court found that the UTPCPL only protected the citizens of Pennsylvania absent having engaged in a transaction within the state. On appeal, the Third Circuit certified the case to the Pennsylvania Supreme Court on the potential residential and geographical restrictions of the UTPCPL.

The Pennsylvania Supreme Court, employing principles of statutory interpretation, found that the plain language definitions of “person” and “trade” and “commerce” in the UTPCPL contain no geographic limitation or residency requirement. In addition, the court agreed with the notion that the UTPCPL is remedial legislation and should be construed liberally to “effect its objective of preventing unfair or deceptive practices.” This, the court stated, lent additional support to reading the law as protective of non-residents in the absence of statutory language to the contrary.

The court found it necessary to reject the “sufficient nexus” test employed by the District Court and advanced by Guardian. Previous federal court cases interpreting Pennsylvania law had found that a sufficient nexus was required to maintain a UTPCPL claim and that the law only provided a remedy to Pennsylvania residents. Beye v. Horizon Blue Cross Blue Shield of N.J., 588 F. Supp. 2d 556 (D.N.J. 2008, Baker v. Family Credit Counseling Corp., 440 F. Supp. 2d 413 (E.D. Pa. 2006), Lyon v. Caterpillar, Inc., 194 F.R.D. 206 (E.D. Pa. 2000).

The Danganan decision represents additional exposure to Pennsylvania businesses under the UTPCPL and could be part of a disturbing trend.  As such, PCCJR is discussing possible legislative remedies with legislative staff.

One thing seems certain though. Too many more decisions like this will see the Pennsylvania Supreme Court removed from ATRA’s Judicial Hellhole Watch List and on to the Hellhole List itself.

Opinion: Do we really want to be a magnet for mass tort cases? | The Pennsylvania Record | March 12, 2018

America may be a mecca for immigrants, but Philadelphia County has become a magnet for mass tort plaintiffs, and the wretched refuse keep coming.

Someone should put up a giant statue at the county line, with these words inscribed: “Give me your torts, your plaintiffs, your huddling lawyers yearning for big fees.” Instead of tablet and torch, “Lady Liability” could hold a briefcase and a large $ sign, thus embodying the spirit of Philadelphia County as she beckons to litigants suffering oppression in less friendly venues.

Philadelphia’s Complex Litigation Center has several mass tort programs – including Xarelto, Risperdal and asbestos cases – with the percentage of claims brought by out-of-state plaintiffs historically in the high 80s. Last year, however, that figure soared to 94 percent. Read more.

In the News

PCCJR Speaks Out| Here’s another step that policymakers can take to protect injured workers from opioid addiction| Pennlive.com

Letter to the Editor| Backs drug formulary| Scranton Times-Tribune






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