Tuesday, December 6, 2016

Superior Court Rules That Any Trial Court Orders on Discovery Privileges Can Go Right Up the Appellate Ladder



In its recent decision in the case of Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8, 2016 Bowes, Jenkins, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s decision on an interlocutory appeal taken from a discovery order.  

The case involved claims of privilege, including the attorney/client privilege and psychologist/patient privilege relative to requested information from a Defendant.  

The court ruled that the ordering of the production of the Defendant’s privileged information, even for the purpose of an in camera review by the trial court, allows for an immediate interlocutory appeal as of right as a collateral order.  

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them.  The Superior Court also ruled that the application of privileges is subject to a de novo review. 

The court went on to note that statements made to a psychologist during the course of therapy are indeed privileged.   The court also noted that this privilege covers statements made to any members of the treatment team, including social workers.  

The court also found that since the Defendant did not initiate the cause of action, the Defendant did not waive the privilege asserted.  

The court otherwise ruled in this matter that a party’s notes taken at a deposition at the direction of counsel, are protected by attorney/client privilege. 

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 




Thursday, December 1, 2016

Summary Judgment Affirmed on Basis of Fitness Center's Waiver or Release Form in Slip and Fall Case




In its recent decision in the case of Toro v. Fitness Int’l, LLC, 2016 Pa.Super. 243 (Pa. Super. Nov. 10, 2016 Solano, Bowes, and Ott, J.J.) (Op. by Solano, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of a defendant fitness center in a slip and fall case.  

As part of its decision, the appellate court ruled that a release or waiver of liability signed by the plaintiff when joining the health club was valid and binding.   The court stated that, where someone engages in a voluntary athletic or recreational activity, a release in a contract for the use of the facilities is not contrary to public policy.   The court also ruled that a waiver of liability in this regard was not a contract of adhesion because there is no requirement for anyone to engage in recreational activities.  

The court also referred to the oft cited rule that a failure to read a release or waiver language before signing it does not affect its validity.   Here, the court also found that the waiver, which was placed in a box with the bolded words “release and waiver,” was sufficiently conspicuous.  

The court otherwise ruled that the plaintiff failed to establish negligence against the defendant due to the absence of any actual or constructive knowledge or the allegedly slippery condition that allegedly caused the Plaintiff to fall.  

Anyone wishing to review the Superior Court's decision in Toro may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  



Monday, November 28, 2016

Pennsylvania Commonwealth Court Reaffirms That Heart and Lung Benefits Are Not Subject to Subrogation Under MVFRL

In a recent decision in the case of Pennsylvania State Police v. WCAB, No. 2426 C.D. 2015 (Pa. Cmwlth. Oct. 26, 2016), the Pennsylvania Commonwealth Court followed it prior decision in the case of Stermel v WCAB, 103 A.3d 876 (Pa. Cmwlth. 2014), and reaffirmed that Heart and Lung benefits are not subject to Subrogation pursuant to Section 1720 of the MVFRL. 

Stated otherwise, the court ruled that the employer, which in this case was the Commonwealth of Pennsylvania, was not entitled to subrogation from Claimant's third-party recovery in a motor vehicle accident case.

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

I send thanks to Attorney Bruce Zero of  Powell Law in Scranton, PA for bringing this decision to my attention.

Wednesday, November 23, 2016

THANK YOU



SENDING THANKS TO YOU FOR READING AND SUPPORTING TORT TALK ALONG WITH BEST WISHES TO YOU AND YOURS FOR A VERY HAPPY THANKSGIVING.

Dan Cummins

Tuesday, November 22, 2016

Issues of Corporate Negligence Addressed in Lackawanna County Nursing Home Case

In its recent decision in the case of Breslin v. Geisinger Mountain View Care Center, No. 2015-CV-5015 (C.P. Lacka. Co. Oct. 21, 2016 Braxton, S.J.), Senior Judge John Braxton, sitting for the Lackawanna County Court of Common Pleas, sustained several Preliminary Objections asserted by a nursing home care facility in a medical malpractice action.  

Of note, the court found that the Plaintiff’s allegations in the Complaint failed to state a corporate negligence claim against the nursing home facility.  

The court additionally found that the Plaintiff failed to plead allegations sufficient to proceed on a claim for vicarious liability.  In part, the defense argued that the Plaintiff failed to identify the nurses, doctors, and other medical, professional staff, who allegedly treated the Plaintiff’s decedent in a negligent manner.  

The court also found that Plaintiff failed to state a claim for punitive damages under facts alleged in the Complaint and, as such, the claim for punitive damages, along with all allegations of recklessness, were stricken.  

Anyone wishing to read this decision, may click this LINK.

Monday, November 21, 2016

Judge Nealon of Lackawanna County Denies Defense Motion to Seal Settlement in Med Mal Case

In a recent decision in the case of Vaccaro v. Scranton Quincy Hospital Company, LLC, No. 2014-CV-7675 (C.P. Lacka. Co. Nov. 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a defense request to seal settlement records in a medical malpractice case.  The court found that the defendants’ arguments about the potential impact on future settlement negotiations and loss of business did not outweigh the need to keep judicial records accessible to the public.

Anyone wishing to review this decision, may click this LINK.

Summary Judgment Granted in Federal Eastern District of Pennsylvania Slip and Fall Case

In the case of Breen v. Millard Group, Inc., No. 2:13-CV-06926 (E.D. Pa. Nov. 9, 2016 DuBois, J.), the Eastern District Federal Court granted a Motion for Summary Judgment in a slip and fall case.  

In this matter, the court found that the Plaintiff had no evidence as to the cause or origin of the spilled liquid.  As such, the Plaintiff did not have any evidence to establish actual or constructive notice on the part of the Defendant of an allegedly dangerous condition.  

The court ruled that the record confirmed that the Defendant’s documents reflected no actual notice of the condition.   The court also found that a Plaintiff was not entitled to a spoliation inference as the Plaintiff could not establish that any records were missing.   The court otherwise held that the mere lack of documentation does to establish spoliation.   

In this regard, the court found that the Plaintiff did not establish that her fall was reported to the Defendants so as to given rise to a duty to preserve any documents for evidence.

Anyone wishing to review a copy of the Court's Order in this case may click this LINK.  The actual Opinion can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 

I send thanks to Attorney Darryl J. Ligouri of the Harrisburg, PA law firm of Smigel, Anderson & Sacks for sending me a copy of the actual Opinion.