This article originally appeared in Goldberg Segalla’s Product Liability Playbook. Read the issue here.

Pennsylvania wrestling anew with an old question: Where should lawsuits be filed?

The quiet suburban street where Jesse Duke fell to his death from a bucket truck while painting a street- light is in Delaware County, Pennsylvania.

So is the place where Duke’s wife was living when she sued over the accident, alleging an unsafe parking brake caused her husband’s death.

And the automobile repair business where Duke’s employer has the truck serviced is in Chester County.

But Tara Duke’s attorneys filed her product-liability lawsuit in Philadelphia County—and there it stayed, although Goldberg Segalla associate Michael W. Aceto argued that Philadelphia had nothing to do with the case. The judge denied a change-of-venue motion by Mike and Goldberg Segalla partner Christopher McGowan, complicating their defense of one of the businesses named in the multi-party suit—the shop that maintains and performs regular state inspections on the truck Duke was using at the time of the accident.

Chris and Mike knew their client would take a big chance stepping into a courtroom in plaintiff-friendly Philadelphia—so big that once the judge ruled out moving the case the idea of settling it out of court began figuring more prominently in their calculus. Tara Duke was asking for millions in damages from every defendant. The parking brake was not safe for use on an incline such as the 10-percent grade on which the big Ford F650 was parked at the time of the accident, the suit alleged. With Jesse Duke three stories up in the truck’s bucket, the strain on the homemade wood chock behind the driver’s-side front tire grew too great. The chock broke in two and the truck rolled a short distance and hopped the curb, ejecting the 32-year-old Duke.

The accident would not have happened had the truck been properly designed, made, and maintained, Tara Duke alleged. Mike and Chris didn’t lack evidence to counter that claim. In fact, they had an expert-witness engineer who found the only problem with the truck’s parking brake to be that Duke hadn’t properly set it. They also had what Mike calls “the big reveal”—an eye-opening statement by the tow-truck driver who hauled the bucket truck away from the scene of the accident. But in October 2019, they negotiated a settlement that shielded their client from the expense of a trial—one in another county, no less—and the risk of a high jury award.

“If the change in venue motion had been granted, the value of this case drops significantly and the potential for an outright defense verdict rises significantly,” Chris says. As it was, Chris and Mike were left to defend against a sympathetic plaintiff, Tara Duke, in a venue difficult for defendants.

“Ultimately, this case came down to managing risk,” Mike says. “The main factor driving settlement for us was that the case was venued in Philadelphia County, which had no connection to the case and can be an extremely difficult jurisdiction for defendants.”

VENUE-SHOPPING HITS HOME

The Duke case is not uncommon. The important, if seemingly mundane, question of where lawsuits should be filed and adjudicated informs litigation across the country every day, from product-liability cases such as Chris and Mike’s to toxic tort claims over asbestos exposure.

Perhaps nowhere else today is the question of venue more fraught than in Pennsylvania. Although the idea of Philadelphia as a legal vortex is nothing new—attorneys from across the state and beyond have long “venue- shopped” into Pennsylvania’s largest city with many lawsuits having virtually nothing to do with it—the state Supreme Court has injected fresh urgency into the debate over how many cases are filed there. In 2019, the court proposed a controversial rule change that would eliminate a ban on venue-shopping in medical-malpractice cases.

The Legislative Budget and Finance Committee of the Pennsylvania General Assembly is expected to issue a report on the proposed measure’s anticipated impact in January 2020, but critics of the proposal say the writing’s on the wall. Before the ban on venue-shopping in medical-malpractice cases was enacted, in 2002, the tactic created a medical-liability crisis in Pennsylvania. With plaintiffs’ attorneys using business ties to seek and score big payouts in Philadelphia’s high-verdict court system, many doctors in high-risk specialties left the state, countless family practices struggled, and people from Pittsburgh to Philadelphia had a hard time finding doctors. For Pennsylvanians who never had set foot in a courtroom and likely thought of a legal venue as a quibbling detail if they thought of it at all, the odd question of where cases should be adjudicated hit home.

The state Supreme Court ultimately addressed the crisis by requiring medical-liability suits to be filed only in the county where the alleged malpractice occurred. As a result, the number of malpractice suits filed in Philadelphia decreased by half.

‘MAY BE VERY EXPENSIVE’

The careful attention paid to venues shows how important it is to a case.

“Certain venues in Illinois, such as Cook County or Madison County, are nationally known for being areas in which high verdicts have been awarded,” according to the National Law Review. “Depending on the facts of the case and the parties involved, there may be great advantage or disadvantage in a case being filed in the ‘home base’ of one of the parties involved.”

Venues can also affect the convenience and expense associated with litigating a case. “Litigation that occurs far from a business’s primary location may be very expensive to that business,” according to the National Law Review.

In product-liability cases such as Chris and Mike’s, questions of venue can be especially complicated. Does a plaintiff sue the manufacturer in the state where she bought the product or in the home state of the distributor or manufacturer? Or does she file suit where the real-world event that led to the dispute occurred? Or can she, in the words of the U.S. Supreme Court, sue wherever the “stream of commerce” has carried the product?

The Supreme Court has twice deadlocked on the “stream of commerce” theory of personal jurisdiction, notes Daniel Klerman, the Edward G. Lewis chair in Law and History and director of the Center of Law & Social Science at the University of Southern California Gould School of Law, in the Southern California Law Review. If lowering litigation costs is a priority, Klerman concludes, then “[suing] in the distributor’s state is clearly inferior.”

“Neither witnesses to the design or manufacture of the product nor witnesses to the accident itself are likely to be located in the distributor’s state,” Klerman writes. “Similarly, neither the plaintiff’s nor the defendant’s preferred lawyers are likely to be located near the distributor, so litigating in the distributor’s state is likely to require both costly travel and the duplicative expense of local counsel.

“As between suit where the product was sold (which is usually plaintiff’s home state and where the product caused injury) and suit in the defendant’s home state (which is usually where the product was designed and manufactured), it is unclear which will minimize total litigation costs. Suit in the plaintiff’s home state is likely to reduce the plaintiff’s litigation costs, but increase the defendant’s litigation costs.

“Conversely, suit in the defendant’s home state is likely to lower defendant’s litigation costs, but increase plaintiff’s.”

‘SOMETHING UNUSUAL IN PHILADELPHIA’

Philadelphia is among the venues most popular with plaintiffs nationwide, according to the defendant-friendly American Tort Reform Foundation (ATRF).

Medical-malpractice lawsuits aren’t the only kind of case venue-shopped into that Philadelphia Common Pleas Court, which the ATRF ranks sixth on its list of “jurisdictions where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.”

The Philadelphia Court of Common Pleas “continues to be a national epicenter for product-liability litigation,” ATRF states. “The court’s Complex Litigation Center hosts a mass-torts program that attracts drug, medical-device and asbestos cases from across the county.”

According to a 2011 International Center for Law & Economics report, “Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Examination,” Philadelphia courts historically “have been the subject of considerable controversy, including accusations of structural biases in favor of plaintiffs, leading to disproportionately large shares of litigation and verdicts relative to Pennsylvania and the United States in general. … [S]omething intrinsically unusual is occurring in Philadelphia.”

Philadelphia County is so popular with plaintiffs and their attorneys it has been known to have twice as much litigation per capita than other Pennsylvania counties, some of it from well beyond the state’s borders and much of it like Tara Duke’s product-liability suit—cases with virtually no connection to Philadelphia.

Though in medical-malpractice cases questions of venue may ultimately affect more people, even those who never have set foot in a courtroom, questions of venue in product-liability cases can be uniquely puzzling.

‘THE BIG REVEAL’

Many lawsuits can seem to have little or no connection to where they’re filed. Such was the case with Tara Duke’s claim. “There was no relationship to Philadelphia County,” Mike says. “The accident occurred in Delaware County, Duke and his family lived in Delaware County, the defendants were located in Chester County, the truck was purchased in Chester County, the mechanical work and inspection procedures occurred in Chester County, and the plaintiff didn’t treat or have any medical providers in Philadelphia County.

“One defendant, who was based in Chester County, had conducted a small fraction of its business in Philadelphia County. Although that fraction of business was wholly unrelated to the substance of the operative facts, the response at oral argument from the court on this issue was that a party must be completely immobilized for the court the court to grant a venue transfer to any of the surrounding counties bordering Philadelphia.”

Because the Duke lawsuit played out in Philadelphia County, Chris and Mike were wary of the direction it might take if it went to trial, even though they had compelling evidence to show that the truck’s brake worked just fine.

Among the defense team’s evidence was the testimony of an engineer who served as an expert witness. He visited the accident site and then recreated inside a storage facility all the same conditions, including the 10-percent grade, and concluded the truck’s driveline-style brake worked. So did two other witnesses: a certified third-party mechanic and the man who towed the truck away from the site of the accident the day it occurred.

Mike calls the tow-truck driver the defense team’s “big reveal.” In his deposition, the tow driver said he would not have risked crawling under the vehicle to hook it up to his own if had thought the parking brake unsafe.

“That’s my—my body up under the front of that truck, my—my safety is on the front of that truck,” he said in the deposition. “I adjusted the knob, pulled it up, it held. … I would not have crawled underneath the Ford F650 if the parking brake was not functional.”

The Product Liability Playbook is collaborative effort of Goldberg Segalla’s Product Liability practice group examining the latest practices, emerging developments, and influential court decisions in product liability law. View our most recent issue.