The mass tort inventory in the Philadelphia Court of Common Pleas saw modest growth since the start of the year, as the emerging litigation over vena cava filters has begun to see a significant uptick and the newly formed Essure birth control device litigation has started to see its first filings.

According to statistics recently released by the First Judicial District, the mass tort inventory saw an overall increase of 746 cases, or a less than 8% increase over the 9,716 total cases that were pending at the beginning of the year. The total 10,462 cases that were pending as of the beginning of the month are down only slightly from the record high 10,984 cases that were on the dockets at the start of 2018.

Judge Arnold New, supervising judge of the Complex Litigation Center, said none of the changes to the programs so far this year were surprising.

"They are moving exactly where I expected them to move," New said.

The big jump the court saw between 2017 and the peak in 2018 was almost entirely due to the Risperdal mass tort, and that program again saw the biggest growth of any pending litigation in 2019.

According to the numbers, 588 new cases were filed and 13 were transferred into the Risperdal program since the beginning of the year, but with nearly 250 being disposed, the program grew by little more than 350 cases total. With 6,899 cases pending in the Risperdal mass tort program at the start of September, that's a 5% increase over the 6,543 cases that were pending at the beginning of the year.

Photo: Philadelphia Court of Common Pleas

The program, which was consolidated in 2010 and saw the start of its first trial on punitive damages Tuesday, makes up more than 65% of the Complex Litigation Center's inventory. The program has been the dominant mass tort in Philadelphia for several years, and saw exponential growth between 2017 and 2018, with more than 4,000 being added in that timeframe.

New said the new Risperdal cases are likely plaintiffs who began taking the medication while they were minors, which would extend the statute of limitations out until two years after the plaintiff's 18th birthday. The state Supreme Court is also reviewing how the discovery rule should apply to broader statute of limitations in the litigation, which, New noted, could cause significant fluctuation for Philadelphia's inventory.

Although Risperdal continues to be the largest mass tort by far, two much more recently consolidated mass tort programs have begun to emerge.

The vena cava filter litigation focuses on allegations that the cage-like devices, which are implanted into the inferior vena cava to prevent blood clots, were defectively designed and can migrate or break down in the body. Since being consolidated in 2017, the mass tort has grown to 729 cases as of the beginning of September.

According to the FJD's numbers, there were 438 vena cava filter cases at the start of the year, and since then, 289 new cases were filed, increasing the program by 66% since January. The growth was the second largest intake for any single program so far in 2019, and, year-to-date, it saw the highest percentage of growth as well. However, in terms of the overall program, the litigation only makes up 7% of the total mass tort inventory.

The other emerging mass tort program to see strong growth so far this year is the litigation over the Essure birth control device. That litigation was consolidated into a mass tort program in March, and, as of Sept. 1, it had 93 cases pending. According to the court's statistics, 34 new cases were filed since January, and 59 cases were transferred into the program.

Essure is composed of metal coils placed in a woman's fallopian tubes to create a blockage intended to prevent pregnancy, according to court papers filed in federal litigation. Plaintiffs have alleged that the device migrates from the implant area, breaks into pieces and perforates organs, causing "severe and permanent injuries."

More than 1,000 cases had been filed over the device in federal court as of March. Although the primary defendant, Bayer Healthcare Pharmaceuticals Inc., had removed numerous cases to federal court, the judge overseeing the litigation in the U.S. District Court for the Eastern District of Pennsylvania last year determined that those cases had been improperly removed, and sent those lawsuits back to Philadelphia court.

The only other program to see significant growth over the past nine months was the Xarelto litigation, which reached a global settlement for $775 million in March, resolving thousands of lawsuits filed in state and federal courts. Since January, 101 new Xarelto lawsuits were filed in Philadelphia.

The pelvic mesh program, which has seen numerous multimillion-dollar verdicts over the past few years, declined by 10 cases, from 88 to 78 since January, according to the numbers, and the asbestos litigation continued to see steady decline, falling from 571 to 528 since the start of the year. Asbestos has steadily fallen from its most recent peak in 2012, when there were 762 cases pending.

The most recent numbers released by the court did not include the number of new lawsuits that were filed by out-of-state plaintiffs—a statistic that the court has tracked for several years.

New said those statistics were not included on the latest numbers as a result of lingering compatibility issues stemming from the six-week shutdown of the court's digital system after it was hacked. However, he said, the court is continuing to collect those figures and should be releasing them soon.

"We're working on those, and should be able to provide them in a month or two," New said.