Friday, October 22, 2021

Tickets Still Available -- 13th Annual Lackawanna Pro Bono Gala


For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.





 

Court Compels Deposition of Defendant Over Defendant's Covid-19 Pandemic Fears


In the case of Espinosa v. Luthercare, No. 2019-CV-02130 (C.P. Leb. Co. July 28, 2021 Charles, J.), Judge Bradford H. Charles of the Lebanon County Court of Common Pleas issued a decision ordering a witness to give a videotape deposition testimony without a mask but while sitting in a room without anyone else present. The court granted the Motion to Compel at issue filed by a Plaintiff against a Defendant in a professional negligence action against a doctor and a nursing facility in which it was alleged that the decedent’s death was allegedly caused by the Defendants’ failure to evaluate and treat the decedent.

In this matter, the Plaintiff sought the Defendant doctor’s deposition.

The Defendant doctor asserted that he should be permitted to wear a mask due to concerns over COVID-19 during the deposition.

The Plaintiff argued that the Defendant should not be allowed to wear a mask but that the Plaintiff would agree to videotaping the Defendant’s deposition such that the Defendant’s doctor would be the only person in the room.

In rendering his decision, Judge Charles reviewed the Pennsylvania case law that stressed the importance of the fact-finder in being able to assess the demeanor of the witness.

The court additionally noted that witnesses in its courtroom had never been allowed to wear masks while testifying during the pandemic, noting it was the court’s belief that the fact-finder should be able to see the witnesses clearly as they testify.

The court noted that the facial expressions of a witness contribute to the overall demeanor of the witness and that the demeanor of the witness was a touch stone of any credibility assessment.

As noted above, the court, while noting the seriousness of the COVID-19 concerns, found that the proposed process of having the witness unmasked and in a room by himself would reduce the risk of infection to almost a de minimus level.

Under the discretion granted to trial court judges to manage the discovery process, the court crafted an Order compelling the unmasked, videotape deposition of the Defendant.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of above image:  Photo by Anshu A on Unsplash.com.
 


dancummins@CumminsLaw.net
(570) 319-5899

Thursday, October 21, 2021

Motion for Summary Judgment Denied in Slip and Fall Case


In the case of Yearwood v. Mountain Valley Orthopedics, No. 10812-CV-2014 (C.P. Monroe Co. July 15, 2021 Higgins, Jr., J.), the court found genuine issues of material fact existed in a slip and fall case such that a Defendant’s Motion for Summary Judgment was denied.

In this matter, the Plaintiff alleged that he slipped and fell on the premises occupied by Mountain Valley Orthopedics.

While the Defendants asserted that they could not be held liable under Pennsylvania law as the Plaintiff slipped and fell during the course of an ongoing snowstorm, the Plaintiff’s countered with the argument that the cause of the icy patch upon which the Plaintiff fell was frozen water runoff from an overhead metal canopy.

The court noted that deposition testimony in the matter showed that runoff was a common problem at the premises. As such, the court noted that there was a genuine issue of material fact as to whether the icy patch was form by runoff, was the product of a premise snowstorm, or was the product of the snowstorm that was occurring on the same day of the incident.

The court also found issues of material fact with regards to the Defendants raising the Choice of Ways Doctrine. The court noted that the Plaintiff testified that he did not perceive the risk of the icy patch as it was covered by snow at the time of the incident. As such, the court found that issue of fact regarding the Plaintiff’s awareness of any risk barred the entry of summary judgment.

Finally, the court noted that there were issues of material fact relative to whether or not the Hills and Ridges Doctrine should be applied since there were issues of fact about the cause of the icy patch and whether the runoff from the canopy constituted a defect. For this additional reason, the Defendant’s Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 28, 2021).

Source of image:  Photo by Damian McCoig on Unsplash.com.


LOOKING TO TRY TO SETTLE YOUR SLIP OR TRIP AND FALL CASE

BRING YOUR CASE TO A CLOSE BEFORE THE END OF THE YEAR


dancummins@Cumminslaw.net
(570) 319-5899

Wednesday, October 20, 2021

Informed Consent Claim Dismissed Due to Lack of Expert Testimony


In the case of Bilinski v. Wills Eye Hospital, No. 2:16-CV-02728-GJP (E.D. Pa. Sept. 1, 2021 Pappert, J.), the court ruled a Plaintiff’s failure to produce expert medical testimony in support of a battery claim arising from lack of informed consent was fatal to the claims presented in that regard. 

However, the court otherwise noted that the Plaintiff was not required to produce expert medical testimony relative to an emotional distress claim as jurors could evaluate the emotional harm allegedly inflicted upon the Plaintiff due to the Plaintiff’s allegedly being subjected to a medical procedure against his will.

According to the Opinion, the Plaintiff reported to an eye surgeon for an evaluation to be fitted with cataract lenses. The Plaintiff alleged that the doctor evaluated both of the Plaintiff’s eyes but did not prescribe glasses.  Instead, the doctor allegedly grabbed the Plaintiff by the shirt telling him that he needed laser treatment immediately because his eyes were going to blow up.  The doctor then allegedly looked up at the ceiling and laughed. 

The Plaintiff alleged that the doctor physically grabbed the Plaintiff and led him to another room where a laser procedure was performed on the Plaintiff’s right eye. The Plaintiff alleged that the doctor, who was a surgery fellow, had not consulted with any attending physician and had completed the procedure without supervision and without the Plaintiff’s consent. All of these allegations were denied by the defense.

As noted, the court granted in part and denied in part the Defendants’ Motion to Dismiss. The court agreed with the Defendants that the Plaintiff’s failure to retain a medical expert was fatal to some of the claims presented.

The court also ruled that there was a genuine factual dispute as to whether or not the Plaintiff had consented to the laser procedure.

The court additionally noted that, while the Plaintiff was required to have produced expert medical testimony to prove that he sustained physical harm and suffering due to the alleged medical battery, the Plaintiff did not need an expert to support his claim for emotional distress as, in the court’s eyes, jurors could understand the emotional trauma of being subjected to a medical procedure without consent. As such, the Plaintiff’s emotional trauma claim was allowed to proceed.

The court otherwise ruled that the Plaintiff did need to produce an expert to support his lack of informed consent claim in order that the jury may be educated on what would constitute informed consent in a medical setting.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 23, 2021).

Source of image:  Photo by David Travis on Unsplash.com

Tuesday, October 19, 2021

LINK to Copy of J.C. v. Horizon Medical Corp. Decision From Yesterday's Post Regarding Statute of Limitations in Sex Abuse Civil Claims

In the case of J.C. v. Horizon Medical Corp., No. 20-CV-1222 (C.P. Lacka. Co. Oct. 8, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a number of issues relating to sex abuse claims in a civil litigation matter.

According to the Opinion, an allergist allegedly sexually abused a student in his medical practice office.

After Section 5533(b)(2) of the Judicial Code, 42 Pa. C.S.A., was amended effective November 26, 2019, to extend the applicable statute of limitations to the Plaintiff’s 30th birthday, the student filed a Complaint against the allergist and his corporate employer.

The corporate employer filed a demurrer asserting that the student’s claims were time barred since the statute of limitations period that was extended by the amendment go the law should only apply to the individual perpetrators and not their employers. The employer also argued that the amendment to the loss could not be applied retroactively to revive her lapsed claim.

Judge Nealon disagreed and noted that the plain language of §5533, and its legislative history, supported the conclusion that the expanded statute of limitations period was intended to apply not only to the individual offenders, but also their alleged institutional enablers and principals.

The court otherwise ruled on other issues that the Plaintiff’s allegations in support of her fraud and punitive damages claims were sufficiently specific to provide the allergist and his employer with adequate notice of the claims against which they must defend.

Judge Nealon also noted that allegations in the Plaintiff’s Complaint regarding alleged issues between the allergist and another student were relevant to the issue of whether the employer knew or should have known of the necessity for greater supervision and monitoring of the doctor. As such, Judge Nealon denied the argument that such allegations constituted scandalous or impertinent matter and allowed those allegations to proceed.

In the end, the court overruled all of the Preliminary Objections asserted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Robert T. Moran of the Moran Law Group, LLC in Scranton, PA for bringing this case to my attention.

Source of image:  Photo by Edgar Moran on Unsplash.com.

Court Finds Extension of Statute of Limitations in Sex Abuse Civil Cases Also Applies to Related Employers of Perpetrators


In the case of J.C. v. Horizon Medical Corp., No. 20-CV-1222 (C.P. Lacka. Co. Oct. 8, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a number of issues relating to sex abuse claims in a civil litigation matter.

According to the Opinion, an allergist allegedly sexually abused a student in his medical practice office.

After Section 5533(b)(2) of the Judicial Code, 42 Pa. C.S.A., was amended effective November 26, 2019, to extend the applicable statute of limitations to the Plaintiff’s 30th birthday, the student filed a Complaint against the allergist and his corporate employer.

The corporate employer filed a demurrer asserting that the student’s claims were time barred since the statute of limitations period that was extended by the amendment go the law should only apply to the individual perpetrators and not their employers. The employer also argued that the amendment to the loss could not be applied retroactively to revive her lapsed claim.

Judge Nealon disagreed and noted that the plain language of §5533, and its legislative history, supported the conclusion that the expanded statute of limitations period was intended to apply not only to the individual offenders, but also their alleged institutional enablers and principals.

The court otherwise ruled on other issues that the Plaintiff’s allegations in support of her fraud and punitive damages claims were sufficiently specific to provide the allergist and his employer with adequate notice of the claims against which they must defend.

Judge Nealon also noted that allegations in the Plaintiff’s Complaint regarding alleged issues between the allergist and another student were relevant to the issue of whether the employer knew or should have known of the necessity for greater supervision and monitoring of the doctor. As such, Judge Nealon denied the argument that such allegations constituted scandalous or impertinent matter and allowed those allegations to proceed.

In the end, the court overruled all of the Preliminary Objections asserted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Robert T. Moran of the Moran Law Group, LLC in Scranton, PA for bringing this case to my attention.

Source of image:  Photo by Edgar Moran on Unsplash.com.

Monday, October 18, 2021

Court Dismisses UIM Bad Faith Claims Based Upon Disagreements Over Value of the Claim



In the case of DeLuca v. United Financial Cas. Co., No. 3:19-CV-01661 (M.D. Pa. Sept. 22, 2021 Wilson, J.), the court granted summary judgment to the carrier in this uninsured motorist bad faith claim where the claim was based, in part, on the fact that the settlement offer was a small fraction of the demand.

The court ruled that the record before it only revealed a valuation dispute. The court additionally noted that the records confirmed that the insurance company had conducted a detailed and timely investigation into the claims presented before making its settlement offers, whatever the size of the offers were during the course of the matter.

According to the Opinion, the UM policy had a $300,000.00 limit, which was demanded. During the course of the matter, the carrier offered a small fraction of that amount to settle, while stating that its investigation was ongoing.

The record revealed that the carrier had initially offered the Plaintiff $7,500.00 to settle the UM claim based upon the information secured as of that time. After considering that offer, the insured demanded the policy limits, which demand the carrier reviewed. After a subsequent discussion, the insured then lowered her demand to $100,000.00. However, a month later, the demand was raised back to $300,000.00.

The carrier continued to negotiate and offered $9,000.00 which was rejected. Thereafter, additional medical records were produced, which were reviewed by the carrier, resulting in an increase of the settlement offer to $11,500.00. The Plaintiff’s demand remained at the $300,000.00 policy limits.

Thereafter, additional medical care was completed and medical records were provided to the carrier. The carrier reviewed those additional records. There were no additional demands before suit was filed.

Judge Wilson noted that the Third Circuit and the Middle Federal District Court of Pennsylvania have made clear that disagreements over the value of an insured’s claim and failing to merely offer the policy limits does not equate to bad faith, without more, on the part of the carrier. In the end, Judge Wilson found that the Plaintiff had not provided any evidence that would cause the court to find that the carrier did not have a reasonable basis for denying the benefits claimed.

After reviewing the current status of bad faith law in Pennsylvania, the court granted summary judgment.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention. Attorney Applebaum is affiliated with the Philadelphia law firm of Fineman, Krekstein & Harris.