PCCJR Update – April 3, 2018

Legal Communications Privilege; Asbestos case filings in Philadelphia by 32%; 

Lawsuit Watch Welcomes PMA’s David Taylor

PCCJR Weighs in on Legal Communications Privilege Issue

Should an attorney’s work product lose attorney-client and work-product privileges if it is shared with a public relations firm retained to work on the lawsuit at issue? This question is at the heart of Bousamra v. Excela Health, Case No. 5 WAP 2018 and currently before the Pennsylvania Supreme Court. PCCJR is a party to an amicus curiae brief, arguing that privileges should not be waived when a business shares a legal document with a litigation public relations firm.

“This is a serious issue regarding the state of modern civil litigation,” said Curt Schroder, PCCJR’s executive director. “In high stakes matters, the court of law and the court of public opinion are not mutually exclusive domains.  Plaintiff’s attorneys take high profile cases to the media constantly in an attempt to vilify defendants and win over public opinion.  Defendants need to be able to fully protect themselves, which means the legal team must be able to freely share their opinions and their work with communications professionals working to uphold the image of the corporate defendant.”

In Bousamra v. Excela Health, the hospital’s in-house counsel shared its outside counsel’s legal memo with its public relations firm that was working to properly communicate the hospital’s position to the public.  During litigation, the legal memo was sought in discovery. The argument was that the hospital waived any privileges associated with the document when it was shared with the communications team.

“Every day we see how the news and social media have the power to influence all kinds of outcomes, including legal ones,” Schroder continued. “It’s absurd to think that parties might have to wall off their communications professionals from the rest of the team for fear of losing attorney-client and work product privileges.”

The National Association of Manufacturers, American Tort Reform Association, and NFIB Small Business Legal Center also signed on as parties to the brief.

Asbestos case filings declined nationally in 2017, filings up in Philadelphia by 32%!

Asbestos filings decreased anywhere from five to 10 percent in 2017, depending on the type of case, according to a report released by the consulting firm KCIC. Nationally, mesothelioma cases were down five percent, lung cancer cases decreased almost 10 percent, and other types of cancer saw a drop of nearly 12 percent.

Philadelphia, however, remains a leading venue, along with New York, and New Castle County, Delaware. Mesothelioma cases jumped 32 percent in Philadelphia in 2017. The Philadelphia Court of Common Pleas asbestos docket has traditionally been among the largest in the nation. Ironically two out of every five asbestos plaintiffs filing in Philadelphia are residents of other states.

The report cites recent court cases and new laws governing asbestos cases as having the most impact on the filings.

Recent U.S. Supreme Court decisions, like Bristol-Myers Squibb, have the potential to impact the location where cases may be filed and have begun to address litigation tourism issues.  Additionally, the U.S. House of Representatives and 13 states, not including Pennsylvania, have passed laws to require plaintiffs to disclose all claims their clients have made or will make against bankruptcy trusts. Others suggest the age of the litigation and the types of disease may also be a factor in the decrease in cases.

Pennsylvania is currently considering legislation (HB 238) to restore integrity to the discovery process in asbestos cases and prevent the manipulation of exposure evidence. This important reform would require that a plaintiff in an asbestos case inform the court of any claims it has filed or will file, against an asbestos trust. This will allow the court to properly apportion damages among all responsible parties. 

Lawsuit Watch Welcomes PMA’s David Taylor

 The March edition of PCCJR’s radio program “Lawsuit Watch featured Pennsylvania Manufacturing Association (PMA) President and CEO David Taylor and a discussion on the impact of lawsuit abuse on the productive sector.

PMA, in addition to being a board member of the PCCJR, is the state partner to the National Association of Manufacturers (NAM), which is the driving force behind the Manufacturers’ Accountability Project project through its Manufacturers’ Center for Legal Action. The project seeks to push back against the assault on manufacturers and their customers through politically motivated, strategic lawsuits. Its website—MFGAccountabilityProject.org—provides in-depth commentary, social media resources, and facts that reveal the movie-worthy plot and seeks to set the record straight.

The program also offered an update on S.B. 936, legislation which would prevent opioid medications from being over-prescribed and prevent law firm-owned pharmacies from overcharging for medications, including unproven and dangerous compounded creams not approved by the Food and Drug Administration (FDA). Trial lawyers are spending a massive amount of money to stop the bill because it would also put a stop to the controversial practice of law firmed-owned pharmacies profiting off non-FDA approved compound creams.

Lawsuit Watch airs on the fourth Monday of each month on WFYL. The program broadcasts live on 1180 AM and the web. Listeners can tune in via podcast anytime by clicking here.

In the News

PCCJR quoted: Reform is long overdueLegal reform advocates point to medical malpractice figures in New York, Pennsylvania | Legal NewsLine

Update! | Federal judge rules 1,200 Xarelto lawsuits will be removed from MDL for disposition in separate trials | Penn Record

Lawsuit Thrown Out | Lawsuit saying Home Depot tricks buyers of 4X4 lumber is deep-sixed| Reuters

Reminder: Coffee is hot! First McDonald’s, now Wawa convenience store faces negligence lawsuit over hot coffee spill | Penn Record


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