Pa. civil justice system in need of reform | Opinion

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“Little attention has been paid to the issue of how lawsuit abuse and unfair courts have a significant and long-term impact on employers and the competitiveness of Pennsylvania’s job climate,” writes Curt Schroder.

The foundation of justice is good faith.
— Marcus Tullius Cicero, Roman lawyer, scholar, and statesman.

Our system of civil justice operates on the good-faith conduct of the parties and their legal representatives in court. What happens when good faith breaks down? Welcome to Pennsylvania’s civil justice system, 2017!

The Inquirer recently reported on a pharmacy, Workers First, owned primarily by three partners and the chief financial officer at the Pond Lehocky law firm. According to the story, the firm refers workers’ compensation clients to a select group of doctors and urges that the prescriptions be filled at Workers First. Some of the doctors also own a piece of the pharmacy, which, the Inquirer reported, “prescribes unproven and exorbitantly priced pain creams to injured workers” — some costing $4,300. Medical experts question the safety and effectiveness of these creams, and legal experts have raised doubts about the ethics of this arrangement. The article said the firm believes it is “on solid ethical footing.”

The Pennsylvania Coalition for Civil Justice Reform is very concerned about attorney-pharmacy relationships, and experts agree the situation is ripe for corruption.

At the very least, the Disciplinary Board of the state Supreme Court should investigate this arrangement. Pennsylvania Rule of Professional Conduct 1.8 prohibits lawyers from knowingly acquiring an “ownership, possessory, security, or other pecuniary interest adverse to a client” unless the terms are fully disclosed and transmitted to the client in writing. In other words, the lawyer should not be profiting from the client other than the direct fee for the representation.

Enacting Pennsylvania House Bill 18 would also help. The bill would establish a drug formulary that organized prescriptions, as well as dosage and treatment lengths, as either preapproved or requiring authorization, under the Workers Compensation Act. Such legislation would help eliminate current abuses in the system and, when enacted in other states, has been shown to reduce opioid dependency. Interestingly, this commonsense bill is being fought in Harrisburg by the Pond Lehocky law firm, the owners of the pharmacy.

Unfortunately, lawyer-owned pharmacies are only one example of legal bad faith in Pennsylvania. Asbestos attorneys in the commonwealth are notorious for withholding information in discovery and deceiving judges and juries alike, to extricate larger awards and therefore profits. Exposure information is needed to give a complete picture of a plaintiff’s history of asbestos exposure and all parties to a case have a right to this information. However, attorneys will deny their clients’ exposure to asbestos products of bankrupt companies but later file claims against these very same companies. In addition to being unethical, this inappropriately drains the bankruptcy trusts that are set aside for asbestos victims and results in solvent companies paying more than their responsible share for asbestos exposure — all while trial lawyers continue to double-dip.

Legislation has been introduced to return good faith to asbestos litigation. H.B. 238 requires that the claimant inform the court of all claims that have been or will be filed against an asbestos bankruptcy trust. This will allow the court system to function properly and award damages based on the true fault of all the responsible parties. Attorneys will be prevented from hiding the main culprits in order to squeeze more money out of minimally at-fault defendants.

Until now, little attention has been paid to the issue of how lawsuit abuse and unfair courts have a significant and long-term impact on employers and the competitiveness of Pennsylvania’s job climate. But it is time for the state’s legislature and its courts to restore good faith to our civil justice system.

Curt Schroder is executive director of the Pennsylvania Coalition for Civil Justice Reform. curt@pccjr.org