Tuesday, May 21, 2019

Need CLE Credits?

Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Monroe County Bar Association on Tuesday May 28, 2019.  Lunch will be served at 11 a.m. and the CLE will run from Noon - 1 p.m.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at dburdge@monroebar.org   to register.

Thank you to Joe Cardoni at Exhibit A for helping with
the technical aspects of the Powerpoint presentation.

Thank you to Network Deposition Services for assisting with
the playback of the Powerpoint presentation.

Monday, May 20, 2019

Judge Shurtleff of Sullivan County Addresses Service of Process Issues

In the case of Pennsylvania Electric Co. v. Antoine’s Timbering, Inc., No. 2016-CV-50 (C.P. Sullivan Co. Oct. 20, 2018 Shurtleff, P.J.), the court granted a Defendant’s Motion for Judgment on the Pleadings based upon a Plaintiff’s failure to complete service of original process within the applicable statute of limitations in this negligence cause of action.

According to the Opinion, this property damage matter arose out of the Defendant timbering company’s alleged negligent cutting of a tree on April 25, 2015 causing it to hit the Plaintiff’s facilities including telephone poles and wires.  

The Plaintiff instituted this action by filing a Complaint on March 7, 2016.   A little over a month later, on April 19, 2016, the Sullivan County Sheriff’s office filed an Affidavit indicating that service of process on the Defendant had not been perfected as the Sheriff was provided with an invalid address.  

Thereafter, the statute of limitations expired a little over a year later on April 25, 2017.  The court noted that the next docket entry following the previous Sheriff’s Return of Service was not lodged until October 27, 2017 when the Plaintiff filed a Praecipe to Reinstate the Complaint, which was approximately eighteen (18) months later.  

Judge Russell Shurtleff
Sullivan/Wyoming County
The court noted that, while the Complaint was filed within the statute of limitations and promptly provided to the Sullivan County Sheriff’s Department, service was not effectuated. The Plaintiff then waited approximately eighteen (18) months to reinstate the Complaint.   The court noted that simply waiting eighteen (18) months to reinstate a Complaint on the basis that the Plaintiff’s attorney was unable to locate the Defendant in the interim was not conduct of good faith.  

As such, the court granted judgment on the pleadings on favor of the defense after finding that the Plaintiff’s course of conduct in taking no action to locate the Defendant for such a prolonged period of time served to unnecessary delay the legal process in violation of the case of Lamp v. Heyman and its progeny.  

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

I send thanks to Attorney Stephanie Hersperger of the Harrisburg, PA office of the law firm of Pion, Nerone, Girman, Windslow & Smith, P.C. for bringing this case to my attention.   

Friday, May 17, 2019

Building Code Officials Granted Immunity Under Tort Claims Act

Whether building code officials contracted to enforce the Construction Code Act by a local governmental entity are entitled to immunity under the Tort Claims Act was addressed in the case of Hartzell v. SM Ross, Inc., et.al., No. GD 17-CV-011430 (C.P. Allegh. Co. March 25, 2019 Connelly, J.).  In this case, the court ruled in favor of the Defendants, finding that these particular Defendants were indeed afforded immunity in negligence causes of action.  

According to the Opinion, this case arose following a landslide which damaged the Plaintiff’s newly purchased home.   The Plaintiffs failed a Complaint against Building Inspection Underwriters, Inc. and other Defendants, including a local governmental agency. 

The court generally noted that the local governmental agency was entitled to the immunity provided under 42 Pa. C.S.A. §8541 of the Tort Claims Act. 

The court additionally noted that the Pennsylvania Code requires that local governmental entities appoint a building code official to enforce the Construction Code Act.  

In part, the Plaintiffs sued the Borough Code Officials for failing to enforce the code provisions relative to the premises at issue.   In response, those particular Defendants asserted that they were entitled to protections afforded by the Tort Claims Act.   In the end, the court ruled that the Tort Claims Act does indeed afford immunity to Building Code Officials contracted to enforce the Construction Code Act by a local governmental agency.

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

I send thanks to Attorney William J. Bryers of the Philadelphia law firm of Pillinger, Miller, Tarallo, for bringing this case to my attention.  

Thursday, May 16, 2019

Pennsylvania Superior Court Issues Cautions For Preserving Record and Issues for Appeal

In the case of Hassel v. Franzi, No. 2019 Pa. Super. 109 (Pa. Super. April 8, 2019 Stevens, P.J.E., Olson, J., Dubow, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court noted that a failure to include record citations in party’s statement of issues in appellate filings, so that the appellate court could establish that the objections asserted were made and what was objected to, amounts to a waiver of the issues on appeal.  

The Superior Court noted that “[i]t is axiomatic that when a court has to guess what issues a Defendant is appealing, that is not enough for meaningful review.”  See Op. at 12.  

In this regard, the court noted that this matter involved an eight (8) day trial and that the appellate only initially provided the court with notes of testimony from portions of the trial.   The Superior Court noted that the Superior Court’s Prothonotary completed an extensive effort to ascertain the remaining notes of testimony.   In its Opinion, the court reminded the appellant of its duty to ensure that the Superior Court receives all of the documents necessary to review the issues raised on appeal.   See fn. 1 at p. 13.    

The court additionally noted in this Opinion that any objections concerning an expert exceeding the scope of an expert report and/or the scope of direct examination must be specifically stated or will be considered to be waived on appeal.  

This case arose out of a medical malpractice action.  

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.  

Wednesday, May 15, 2019

Judge Minora of Lackawanna County Addresses Parameters of Neuropsychological Examinations Requested by Defense

Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently weighed in on the issue of the proper parameters for a neuropsychological IME in the case of Dellavalle v. USAA, No. 2017-CV-4668 (C.P. Lacka. Co. May 14, 2019 Minora, J.).

This case involved UIM claim(s) arising out of a motor vehicle accident. 

The issue came before the court by way of a motion to compel filed by the defense.  The defense desired to complete a neuropsychological examination of the Plaintiff with a doctor in Allentown.  The Plaintiff objected to the distance required to travel to the exam and also objected to the requested length of the deposition.

There were also disputes between the parties as to whether the examination could be videotaped, to what extent the Plaintiff's attorney or a representative of the Plaintiff could be present during the exam or testing, and whether the Plaintiff was entitled to secure any raw data generated by the defense expert during the exam.

Judge Carmen D. Minora
Lackawanna County

In addressing the issues before him, Judge Minora noted that Pa.R.C.P. 4010 allows for examination if good cause is shown and that Pa.R.C.P. 4011 grants the court discretion to avoid any discovery that causes unreasonable annoyance, embarrassment, oppression, burden, or expense to a person or a party.

In terms of the location of the expert, the court noted that it hesitated to infringe upon the right of any party to try the case they choose, including with respect to the selection of an expert.  As such, the court rejected the Plaintiff's objection to the location of the expert but ruled that the defense would have to bear any expenses related to the travel required for the Plaintiff to attend the exam.

As for the duration of the neuropsychological IME, the court limited the exam and testing to six hours over two days.  In this regard, the court noted that it was balancing the defense's right to the examination against the Plaintiff's right to be protected from unreasonably burdensome discovery.

With regards to presence of Plaintiff's counsel or a representative of the Plaintiff at the examination, the court noted that there was no binding appellate court precedent on the issue.  Judge Minora reviewed prior trial court opinions on the issue.  In the end, the court ruled that the Plaintiff could have a representative present only for the interview portion of the neuropsychological examination.  The court further ruled that a representative of the Plaintiff would not be allowed in the room during the standardized testing portion of the exam.

Judge Minora additionally ruled that no part of the examination by the doctor and/or the standardized testing could be videotaped.  However, he did allow for videotaping of the interview portion of the exam, i.e., the part at which the Plaintiff's representative was allowed to be present.

The court also ruled that the Plaintiff was to be provided with any raw data generated during the examination.  The court's Order also required that all examination and testing materials were to be returned to the Plaintiff upon the conclusion of the case.

Anyone wishing to review this decision, may click this LINK

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

For other Tort Talk entries on this issue, check out the Label of "Neuropsychological Review" way down on the right hand column of the Tort Talk blog at www.TortTalk.com.

Tuesday, May 14, 2019

Superior Court Rules that Internist Can Testify as Plaintiff's Expert on Musculoskeletal Issues in a Slip and Fall Case

In the case of Wright v. Residence Inn by Marriott, Inc., 2019 Pa.Super. 110 (Pa. Super. April 9, 2019 Kunselman, J., Bowes, J., Shogan, J.) (Op. by Kunselman, J.) (Shogan, J., concurring in result), the Pennsylvania Superior Court ordered a new trial on damages only in a case where the appellate court found that the Plaintiff’s medical expert was improperly excluded by the trial court below.   

According to the Opinion, the Plaintiff in a slip and fell ice and sustained injuries in the form of shoulder and hip.  At trial, the Plaintiff presented an internist as a medical expert who had been practicing for over 37 years in the field of internal medicine, which the expert described as covering all aspects of medicine including the musculoskeletal system.  

The Pennsylvania Superior Court reaffirmed the rule that experts in one area of medicine may be qualified to address other areas where the specialties overlap, or where the expert has experience in the other field of medicine.  

The Superior Court emphasized that the matter before it was not a medical malpractice case and that the witness was not asked to evaluate the care of a different specialty.  Rather, the expert was only present at trial at the request of the Plaintiff to offer an opinion on causation, treatment, and prognosis.  

The court noted that the expert in this case routinely treated patients with injuries similar to that alleged by the Plaintiff. The court also noted that the Plaintiff’s expert’s specialty was not wholly unrelated to the type of treatment necessary for the Plaintiff’s alleged injuries.   While a different type of medical specialist may have been more qualified, this fact alone did not support the trial court’s exclusion of the Plaintiff’s expert at trial.  

As the Pennsylvania Superior Court found that the exclusion of the Plaintiff’s trial expert was prejudicial given that it left the Plaintiff without any expert witness on the causation issue and extent of injuries issue, a new trial was ordered on the issue of damages only.  

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.  

Pennsylvania Superior Court Addresses Fair Scope of Expert Report Rule

In the case of Hassel v. Franzi, No. 311 EDA 2018 (Pa. Super. April 8, 2019 Olson, J., Dubow, J., Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court addressed the fair scope of expert testimony in a medical malpractice action.  

This matter involved a Plaintiff who was immobilized after she fractured her leg and who developed a blood clot that allegedly caused a fatal cardiac arrest.  

The jury in the trial of the case ultimately determined that one of the doctor’s conduct failed to meet the standard of care but that his negligence was not a factual cause of the Plaintiff’s death.  The jury also found that another doctor’s conduct met the standard of care.  

On appeal, the verdict and judgment was affirmed.    The appellate court rejected the Plaintiff’s contention that the trial court had erred in permitting the Defendants’ experts to testify to matters outside the scope of their reports.  

In this regard, the appellate court noted that the Plaintiff initially failed to specifically object to those portions of the testimony that were alleged outside the scope of the expert reports.  

The Superior Court also ruled that, in any event, the Plaintiff was fairly on notice as to the anticipated expert testimony and/or was able to conduct a productive cross-examination of the experts regardless.  

The Superior Court additionally found that the Plaintiff failed to assert specific objections to the causation testimony by those experts.  

The appellate court additionally rejected the Plaintiff’s contention that the Defendants had been allowed to introduce excessively duplicative expert testimony despite precluding the Plaintiff from presenting cumulative testimony at trial.   The Superior Court affirmed the trial court’s finding that the challenged testimony was corroborative rather than cumulative, as each expert was testifying from the viewpoint of his own specialty.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (April 30, 2019).