WHEREAS, Pennsylvania Constitution, Article 1, Section 6, amended May 18, 1971, provides in part, “Trial by jury shall be as heretofore, and the right thereof remain inviolate;” and

WHEREAS, House Bill 605, Printer’s No. 1142 (“HB 605”), would require that all personal injury cases “relating to COVID-19” shall be subject to compulsory arbitration by a panel consisting of three members of the bar; and

WHEREAS, HB 605 provides that all claims “relating to exposure to COVID-19” are to be arbitrated, including those involving severe injury or death, resulting in a one-size-fits-all approach to claims that will span the spectrum from simple to complex, and from minor amounts to multi-million dollar sums; and

WHEREAS, proposed subsection (b)(1) permits the attorney for the plaintiff, or the plaintiff if not represented, to file with the complaint a certificate affirming that the personal injury or death resulted from the defendant’s failure to comply with health directives in effect at the time of the alleged misconduct. That certification removes the case from compulsory arbitration. A separate certificate must be filed as to each defendant.

WHEREAS, this proposed subsection (b) (1) is deficient in the following respects:

  1. Since there is no requirement for a Certificate of Merit such as that required in professional liability cases, plaintiffs could routinely file the certificate as to each defendant in every case and avoid compulsory arbitration whenever they considered it strategically advantageous. There appears to be no means for defendants to challenge or invalidate these certificates.
  2. If the plaintiff’s attorney files a certificate as to some but not all defendants, the parties will be forced to litigate on dual tracks, some in arbitration and some in court, thereby spawning more, potentially overlapping litigation and possibly contradictory results.
  3. There is no rationale for allowing claims where a defendant allegedly failed to comply with public health directives to automatically bypass compulsory arbitration. If potential damages are within the compulsory arbitration threshold, such cases may still be efficiently addressed through court annexed arbitration; and

WHEREAS, subsection (c) provides that the arbitrators shall have powers and proceed as prescribed by the general rules of court; and under Pa. RCP 1305(b) (1) (iv), expert reports are admissible and the experts would not be subject to cross examination; and

WHEREAS, proposed subsection (c) is deficient in the following respects:

  1. Under PA. RCP 1305(b)(1)(iv), expert reports are admissible in arbitration and the experts would not be subject to cross examination. In smaller cases currently subject to compulsory arbitration, expert reports are typically admitted into evidence in lieu of live testimony. Proposed subsection (c) would subject all actions alleging personal injury or death relating to exposure to COVID-19 to this rule, and cases involving serious injury or death where the awards range into the millions of dollars would be decided by a panel that never sees or hears direct or cross examination of the experts. The same would be true of the records and reports of health care providers.
  2. In some judicial districts such as Philadelphia and Allegheny County, discovery in compulsory arbitration cases is limited by local rule (See Local Rules 1301.1). Consequently, in high value cases where liability and causation are likely to be hotly contested, a trial de novo is virtually guaranteed, regardless of which side prevails at arbitration, making the litigation both more lengthy and expensive for all parties; and

WHEREAS, subsection (d) provides that actions subject to this section “shall receive a hearing on an expedited schedule.” There is no definition of what “expedited” means. In Philadelphia County, for example, a case subject to compulsory arbitration receives a hearing date 270 days from the filing of the Complaint. If “expedited schedule” is meant to shorten the above interval, it is unlikely that there will be sufficient time for discovery, exchange of expert reports and trial preparation in complex cases with severe injuries and/or multiple parties; and

WHEREAS, subsection (e) grants all parties the right to a trial de novo in court. However, the party seeking the trial de novo “shall pay all or a portion of fees and costs…” There is no explanation of what is included in “fees and costs” or what determines when a party must pay “all or a portion” of those fees and costs. Depending upon how those terms are defined, the cost of seeking a trial de novo may be out of reach for many parties; and

WHEREAS, in some judicial districts a party that fails to appear for the scheduled arbitration hearing loses the right to seek a trial de novo, raising the question of whether HB 605, should it become law, would preempt those rules; and

WHEREAS, there appears to be no provision in the bill for the filing of motions for summary judgment, which is normally a vehicle for disposing of non-meritorious claims or defenses prior to trial; and

WHEREAS, although “COVID-19” is defined in the bill, there is no definition of “relating to exposure to COVID 19,” allowing overly broad and subjective interpretation and application of the bill to any lawsuit filed during the pandemic time period; and

WHEREAS, the defects in HB 605 as proposed are likely to result in COVID-19 claims taking more time and expense to resolve than other personal injury claims; and

WHEREAS, The Philadelphia Bar Association believes that the current compulsory arbitration system, perhaps with some increase in the damages maximum, provides a better opportunity for prompt and inexpensive resolution of cases brought by plaintiffs who have not suffered serious injuries.

NOW THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes House Bill 605, Printer’s No 1142 and any similar legislation as being flawed in several material respects, as described herein.

AND BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor’s designee(s) to communicate the Philadelphia Bar Association’s position on House Bill 605, Printer’s No. 1142 and any similar legislation to the General Assembly, the Governor, the legal profession, the media, and the public and take whatever additional action is necessary to effectuate this resolution.

Adopted: April 29, 2020