Monday, September 29, 2014

Tort Talk Expo 2014 a Success -- THANKS VERY MUCH

Over 100 people were in attendance at Friday's TORT TALK EXPO 2014 which took place at the Mohegan Sun Casino Hotel in Wilkes-Barre, Pennsylvania.  The seminar was followed by an outdoor Cocktail Reception on a beautiful Fall day.

Dan Cummins - Tort Talk Auto Law Update

I thank all who took time out of their busy schedules to attend the program.  I am grateful for your support of Tort Talk.

Thanks also to the excellent presenters including Tim Lenahan, Esq. of Lenahan & Dempsey, Scott Cooper, Esq. of Schmidt Kramer, Dr. Lucian Bednarz, Dr. Paul Horchos, and Paul Oven, Esq. of Dougherty, Leventhal & Price.

From L. to R.: Tim Lenahan, Esq., Scott Cooper, Esq., and Dan Cummins, Esq.

I also thank the Judicial Panel Presenters, including Superior Court Judge David N. Wecht, Federal Middle District Judge Malachy E. Mannion, Federal Middle District Magistrate Judge Karoline Mehalchick, Luzerne County Judge Richard Hughes, and Lackawanna County Judge James Gibbons.

From L. to R.: Paul Oven, Esq., Judge Richard Hughes III, Judge James Gibbons,
Judge Karoline Mehalchick, Judge Mal Mannion, Judge David N. Wecht

I plan to have the written materials reduced to a PDF format so it can be made available to the public should anyone wish to secure a copy.   This year's written materials contain, for the first time, a copy of the Post-Koken Scorecard.  Also included in the materials are Bad Faith Litigation Updates written by Attorney Scott Cooper and Attorney Neil O'Donnell.  I will highlight how to secure a copy of these materials in a future Tort Talk post shortly.

I also thank the Table Vendor Sponsors who supported the Tort Talk Expo.  I highly recommend the services of these vendors who are set out below in alphabetical order along with their website addresses in order that you may have their contact information should you wish to reach out to them when the need arises:


At The Scene

Courtside Documents

Exhibit A


Helbig Mediation &Arbitration


Love Court Reporting


Medical Legal Reproductions

Network Deposition Services

Northeastern Rehabilitation Associates



Robson Forensic

Tanja Adonizio
Personal Vacation Planner
(570) 319-9100


The Center for Forensic Economic Studies


The MCS Group


Next up, I will be presenting at the Lackawanna Bench Bar Conference on Friday, October 17, 2015 in Scranton.  My topic will be a Civil Litigation Update (With Lessons From the Godfather Trilogy).

Friday, September 26, 2014

A Sampling of Post-Koken Jury Verdicts From Around the Commonwealth To Date

Below is a sampling of Post-Koken jury verdict results uncovered to date from a review of cases that have gone up the appellate ladder and from research on verdicts from valid sources such as the Pennsylvania Law Weekly.

This list is NOT represented to be exhaustive.  Rather, it only lists those cases my research has uncovered to date.  There certainly could be, and likely are, many more Post-Koken jury verdicts that have not been generally publicized.

Please let me know if you are aware of any other such cases--I can be reached at

I will update this list periodically with new information.  Note that it is not my plan to identify the attorneys involved in the summaries of the verdicts reviewed.

It is my understanding that there may have been at least one other defense verdict in a Post-Koken case, but I will not reference that case until I have confirmed such results as being accurate.

An analysis of the below sampling of Post-Koken jury verdicts reveals no clear trends.  Stated otherwise, the risks attendant with proceeding to a jury trial in an auto accident case remain to be considered by all parties involved.


Allegheny County

Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013) appeal denied 11 WAL 2014 (Pa. 2014)(Allegheny County case)

Post-Koken UIM claim.   Plaintiff sued tortfeasor Defendant and UIM carrier.   Disputed negligence case over who had the red light in a pedestrian versus vehicle case.   Both tortfeasor’s defense counsel and UIM carrier’s defense counsel were allowed to participate in the defense with the only limitation being on cumulative questioning.   Jury not informed of involvement of UIM carrier as a party Defendant.  Defense verdict entered.  

Marlette v. State Farm, 57 A.3d 1224 (Pa. 2012) (Allegheny County case)

Uninsured motorist case.   Plaintiff’s sued uninsured tortfeasor and their own UM carrier, State Farm Mutual Automobile Insurance Company.  Liability was uncontested and the case proceeded to trial on damages for the injured husband and wife Plaintiffs.   Following a two (2) day trial, the jury entered a verdict in favor of the Plaintiff-husband in the amount of $550,000.00 for his bodily injuries and lost wages and in the amount of $150,000.00 to the Plaintiff-wife for loss of consortium.   The total $700,000.00 verdict was molded down to the uninsured motorists policy limits of $250,000.00.


Philadelphia County

Patterson v. Travelers Home and Marine Ins. Co., No. 130502892 (C.P. Phila. Co. July 9, 2014)

Plaintiff complained of neck, back, right knee injuries; tortfeasor tendered his $50,000.00 liability limits.  Plaintiff demanded Travelers’ $25,000.00 UIM limits; jury awarded $86,000.00 in UIM benefits; verdict molded to limits.

Phy v. Nikulin and Progressive Advanced Insurance Company, No. 130203316 (C.P. Phila. Co. June 14, 2014)

UM claim; rear–end accident caused by uninsured driver.  Plaintiff complains of headaches, neck pain, thoracic pain, low back pain.   Plaintiff did not report to an emergency room and did not treat for one (1) month following the accident.  Plaintiff’s primary treatment was approximately five (5) months of chiropractic treatment.  MRIs revealed bulging discs.  Uninsured tortfeasor was not represented and did not appear for trial.   Progressive’s Motion In Limine to preclude any mention of Progressive as UIM carrier was granted; however, Progressive attorney was allowed to defend the matter.   Plaintiff demanded Progressive’s $15,000.00 in uninsured motorists benefits.  Progressive offered $4,500.00.   Jury awarded $250,000.00 for pain and suffering (there were no economic damages claims for medical expenses or wage loss)).  

Casino v. Progressive Specialty Ins. Co., No. 130200693 (C.P. Phila. Co. Apr. 23, 2014)

Clear liability case.  Plaintiff alleges a torn meniscus in right knee.   After his emergency room visit on the day of the accident, there was then a 45 day gap in treatment.   Surgery was allegedly recommended but not completed by the Plaintiff allegedly due to financial constraints.  Plaintiff settled with tortfeasor for $13,500.00 out of $15,000.00 liability limits.  The Plaintiff demanded Progressive’s $15,000.00 in UIM limits.   At a court mandated arbitration, a panel ruled in favor of Progressive and the Plaintiff appealed to a jury trial.  After a jury trial, the jury entered an award in favor of the Plaintiff in the amount of $60,000.00. 

Hall v. Irving,, November Term, 2012 No.:  0220 (C.P. Phila., 1/29/2014) (Allen, J.)

A Philadelphia jury returned a verdict in favor a limited tort plaintiff and awarded $100,000.00 in a combined negligence/UM action. 

While a passenger in her husband’s automobile, plaintiff was injured when her vehicle was struck by the third-party defendant, who was operating an uninsured motor vehicle. 

The third-party defendant claimed the plaintiff’s injuries were not serious enough to entitle her to non-economic damages. 

Prior to trial, the court granted the UM carrier’s motion in limine, which precluded any  mention of the UM carrier or any reference to or introduction into evidence of any matters concerning plaintiff’s insurance coverage.  Counsel for the UM carrier was permitted to participate at trial, but the UM carrier was never identified to the jury. 

The jury found that plaintiff’s two herniated discs in her neck constituted a serious impairment of a bodily function and awarded $100,000.00 to compensate her for past and future pain and suffering.


Mitchell v. Progressive Specialty Ins. Co., No.: June Term, 2012 No.: 03679 (C.P. Philadelphia, 10/3/2013) (Maier, J.)

Limited Tort Plaintiff’s vehicle was struck by a taxi cab in Philadelphia County.  Following the accident, plaintiff settled with the driver of the taxi cab for $13,000.00 (policy limits of $15,000.00) and pursued UIM benefits against her own UIM insurer, Progressive.

At trial against the UIM carrier only, plaintiff showed that she went to work the day of the accident, but treated with an acupuncturist the next day, and received physical therapy for five months.  An MRI confirmed an aggravation of plaintiff’s pre-existing cervical herniation.

Prior to the accident, plaintiff had reached a tolerable baseline condition with respect to her previous cervical-spine injury.  After the accident, however, her condition was allegedly worsened.

The jury found that plaintiff’s injuries were sufficiently serious to pierce the limited tort threshold and awarded $70,000.00.  Post-trial, the trial court molded the award to $15,136.00 to reflect the limits of plaintiff’s UIM policy after application of a credit from the amount previously received from the third-party tortfeasor.

Luzerne County

Borthwick v. Webb and GEICO, No.  No. 2735-Civil-2010 (C.P. Luz. Co. 2012 Vough, J.)

Combined third party tortfeasor and UIM carrier case.  Limited Tort defense.  Both defense attorneys participate.

Liability admitted by third party tortfeasor thereby precluding UIM carrier from arguing contributory negligence.  Plaintiff alleges aggravation of pre-existing thoracic and lumbar spine disc disease.  Vocational claim in approximate amount of $40,000.

Tortfeasor's third party liability limits were $50,000 of which $20,000 was offered in settlement.

UIM carrier's limits were $1.2 million dollars.  No offer by GEICO.

Jury was informed that the Plaintiff had an insurance policy with GEICO.  No more detailed mentioning of insurance at trial.

Jury awarded $2,000 in wage loss and $0 for pain and suffering, equating to a UIM defense verdict.

Brobst v. Komrowski, Progressive Ins., and GEICO, No. 16180-CV-2010 (C.P. Luz. Co. 2012 Hughes, J.)

Disputed liability case.  Third party and UIM defendants.  Progressive settled out prior to trial with $4,000 payment.  Third party defense attorney and GEICO defense attorney both participate.

Plaintiff alleges soft tissue strain injuries to neck and mid-back along with contusions to elbow, right rib, and leg.  Plaintiff's demand was $40,000.

Third party tortfeasor had $100,000 in liability limits of which $8,600 was offered in settlement.

First-level UIM carrier, Progressive had $50,000 in UIM limits and, as noted, settled out for $4,000.

Second-level UIM carrier, GEICO had $100,000 in UIM limits and did not have an offer out at the time of trial.

Jury was informed that the Plaintiff had an insurance policy with GEICO.  No more detailed mentioning of insurance at trial.

Jury assessed 50% contributory negligence on the Plaintiff and awarded $3,696 for lost wages only. Equates to defense verdict for UIM carrier.


Eastern District Court of Pennsylvania 

Heebner v. Nationwide Insurance Enterprise, 818 F. Supp. 2nd 853 (E.D. Pa. 2011)

Plaintiff involved in an accident with an uninsured/underinsured motorist.   The Plaintiff’s Complaint described the motorist as “self-insured”.  As required under the Nationwide policy, the Plaintiff sued the motorist.   Jury entered an award of $85,000.00 in compensatory damages on top of which was added delay damages of $48,201.96.  

Middle District Court of Pennsylvania

Calestini v. Progressive Cas. Ins. Co., No. 3:09-CV-1679 (M.D.Pa. 2010 Caputo, J.)

Defense verdict in Limited Tort case.

Lackawanna Pro Bono's Fundraising Gala Set for October 23, 2014 at Scranton Cultural Center

Thursday, September 25, 2014


September 26, 2014
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
(3 Substantive, 1 Ethics Credit)
11:30 am - 12:00 pm
12:00 pm - 1:00 pm 
"Back to School"
Daniel E.  Cummins, Esq.
1:00 pm - 2:00 pm 
Timothy G. Lenahan, Esq.
Scott B. Cooper, Esq.
Neil T. O'Donnell, Esq.

Moderator: Daniel E. Cummins, Esq.
 {BREAK: 2:00 pm - 2:15 pm}
  2:15 pm - 3:15 pm
Dr. Lucian Bednarz  - Physiatrist - on RSD
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
 {BREAK:  3:15 pm - 3:30 pm}
 3:30 pm - 4:30 pm
Ethical Considerations
Settlement Conferences
Jury Selection
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Court Judge Malachy E. Mannion
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 4:30 pm - 6 pm


At The Scene

Courtside Documents

Exhibit A


Helbig Mediation & Arbitration


Love Court Reporting


Medical Legal Reproductions

Network Deposition Services

Northeastern Rehabilitation Associates




Robson Forensic

Tanja Adonizio
Personal Vacation Planner
(570) 319-9100


The Center for Forensic Economic Studies


The MCS Group

As in the past, there will again be door prizes and raffle prizes.
Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at for more details).
NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 
or mail check made out to "Tort Talk" to:
Daniel E. Cummins
Foley, Comerford & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

 Name:  ________________________________

Firm/Company:  _____________________________________

Email:  ____________________________________

In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
SEPTEMBER 26, 2014


Tuesday, September 23, 2014

Judge Hughes of Luzerne County Denies Severance of Post-Koken Matter But Grants Transfer of Venue

In his recent Order, without Opinion, in the case of Best v. Emsley and Progressive Insurance Company, No. 1549 of 2014 (C.P. Luz. Co. Aug. 29, 2014 Hughes, J.), Judge Richard M. Hughes, III of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant’s Preliminary Objections requesting the severance of the third party negligence claims from the contractual UIM claims asserted against the UIM carrier.  

Judge Richard M. Hughes, III
Luzerne County
In that same Order, however, the Preliminary Objection of the tortfeasor based upon an argument of improper venue was granted and the case was transferred to Lehigh County.  

In this matter, the accident occurred in Lehigh County and the tortfeasor Defendant resided in Bucks County.   The Plaintiff resided in Luzerne County. The tortfeasor Defendant was served by an Acceptance of Service by the tortfeasor’s defense counsel but without the waiver of any venue objections.  

The Plaintiff filed suit in Luzerne County despite the above facts.  As noted, the court granted the Preliminary Objection based on improper venue and transferred the case to Lehigh County, Pennsylvania.  The request for a severance of claims was denied.

Anyone wishing to secure a copy of this Order without Opinion may contact me at


It is noted that Judge Hughes will be one of the featured speakers during the Judicial Hour of this Friday's Tort Talk Expo CLE Seminar at the Mohegan Sun Casino Hotel.  The hope is that the Judicial Panel will provide tips for improving chances for success at jury selection and settlement conferences. 

For info on how to register for the Tort Talk Expo please visit and click on the links in the upper right hand corner of the blog or email

Recent Dram Shop Cases of Note

Jenkins v. Krivosh, PICS Case No. 14-1224 (C.P. Lawrence Co. July 16, 2014 Cox, J.)

Plaintiff's failed to present sufficient evidence to create question of fact to proceed to jury on issue of whether employees served alcohol to a visibly intoxicated person.  Motion for Summary Judgment by Defendant granted.

Source: "Most Wanted Opinions" in "Digest of Recent Opinions" in Pennsylvania Law Weekly (Sept. 2, 2014).  Call Instant Case Service at Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee to secure a copy.

Faust v. J.P. MacGrady's, 58 Northampton 331 (Nov. 19, 2013)

Defendant's preliminary objections to Plaintiff's punitive damages count in a dram shop case denied where Plaintiff alleged sufficient facts in support of claim of outrageous conduct by tavern where Plaintiff asserted that the tavern disregarded known risk of serving visibly intoxicated person while knowing that the patron would be driving home.  Case involved a subsequent fatal car accident.

Source: "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (Sept. 1, 2014).  Call1-800-932-0311 ext.2880 to request a copy for a small fee.