Thursday, May 12, 2022

Trial Court Directs Defense Forensic Economist Expert To Issue An Amended Expert Report To Comport With Law on Damages or Be Precluded From Testifying At Trial

In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022 Nealon, J.), the court addressed several Motion In Limine issues in a medical malpractice action.

This medical malpractice action arose out of a claim against an emergency room physician who allegedly failed to diagnose and treat a minor’s aortic dissection which caused the minor’s death one day later.

The Plaintiff’s filed a wrongful death action seeking damages for their own losses and, in that regard, the parents advanced a claim for the pecuniary value of the services that the decedent would have provided to them. In the survival action, the decedent’s estate sought to recover damages for the decedent’s loss of her future earnings, minus her personal maintenance expenses, during her estimated work life expectancy.

The Plaintiffs filed a Motion In Limine against the opinion of the Defendants Forensic Economists in that the expert excluded health insurance from the fringe benefits calculations for the decedent’s loss of future earnings based upon a rationale that the decedent’s family members did not lose health insurance as a result of the minor’s death. 

The Plaintiffs also objected to the defense forensic economist expert’s inclusion of transportation cost and personal care products and services cost in the estimation of the decedent’s personal maintenance expenses to be deducted against the decedent’s loss of future earnings. The Plaintiffs asserted that Pennsylvania law does not recognize those types of cost as components of a decedent’s personal maintenance expenses.

In addressing this Motion In Limine, the court found that the defense economist expert fundamentally misconstrued the damages recoverable under the Wrongful Death and Survival Act and, as such, the court directed the Defendant’s expert to issue an amended report that complies with Pennsylvania law by including health insurance benefits in the fringe benefits estimation and by excluding the cost for transportation and personal care products and services from the personal maintenance expenses computation. The court held that, if the Plaintiff failed to submit such an amended report, the expert would be precluded from testifying at trial.

On a separate Motion In Limine filed by the Plaintiffs, the Plaintiffs asserted that the defense medical liability expert witness who expressed opinions regarding the complexities of the treatment involved and the difficulty in recognizing an aortic dissection in pediatric patients, did not opined that any physician complied with or deviated from the applicable standard of care. As such, the Plaintiffs asserted that the medical liability expert witnesses opinions were not relevant to the issues presented.

The court rejected this Motion In Limine filed by the Plaintiff after finding that the opinions expressed and the observations made by the defense pediatric cardiothoracic surgeon were relevant to the medical issues to be considered by the jury. The court also found that this expert possessed the requisite qualification to testify on those medical issues presented. As such, the Plaintiff’s Motion In Limine in this regard was denied.

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

Court Reaffirms The Rule That A Plaintiff Cannot Sue a Tortfeasor's Liability Carrier For Bad Faith

In the case of Gitelman v. Wilkinson, No. 2:21-CV-1696 (W.D. Pa. March 24, 2022 Stickman, J.), the court confirmed that a Plaintiff has no standing to sue a tortfeasor Defendant’s carrier for bad faith.

In this matter, the Plaintiff had settled her personal injury case and the tortfeasor Defendant’s carrier issued a settlement check for over $100,000.00. The Plaintiff never deposited the check and took the position that she was defrauded and that she was entitled to more money from her own carrier and from the Defendant’s carrier.

The Plaintiff filed a bad faith claim against the tortfeasor Defendant’s carrier on the basis that that insurance company owed her a duty of good faith and fair dealing.

The court granted the Motion to Dismiss this claim and, citing the Pennsylvania Superior Court case of Strutz v. State Farm, 609 A.2d 569 (Pa. Super. 1992), confirmed that a tortfeasor’s carrier owes no duty of good faith in dealing to third party Plaintiffs.

Accordingly, the court found that the Plaintiff in this matter was found not to have any standing to sue the tortfeasor’s carrier for bad faith.

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

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

Tuesday, May 10, 2022

Proper Jurisdiction for Social Media Defamation Claim Reviewed

In the case of Gorman v. Shpetrik, No. 2:20-CV-04759-CMR (E.D. Pa. March 10, 2022 Rufe, J.), the court addressed jurisdiction issues, and other issues, arising out of a claim of defamation related to online post and tweets that allegedly damaged the Plaintiff’s reputation.

With regard to the jurisdiction issue, the court found that the defendant allegedly directed allegedly defamatory messages to a person within the jurisdiction, with the intent to damage the reputation of another person also in that jurisdiction.  The court found that the defendant had therefore been involved in activity expressly directed at the jurisdiction such that the exercise of personal jurisdiction was proper over the case presented.

Relative to a statute of limitations issues raised by one of the Defendants, the court noted that the limitations period began to run when defamatory material was published.

The court also noted that the Plaintiff’s lack of knowledge as to the Defendant’s identity could not support an application of the discovery rule under the facts presented in this case. 

However, the court found that the Plaintiff had sufficiently pled a claim of fraudulent concealment by alleging that the Defendant had provided false information when registering on the social medial platforms on which the allegedly defamatory material was allegedly published. As such, the court allowed discovery on this issue before making a determination as to whether the doctrine of fraudulent concealment could serve to toll the statute of limitations on some of the Plaintiff’s claims in this matter.

The court additionally dismissed the Plaintiff’s claims of intentional infliction of emotional distress after finding that this claim failed because the Plaintiff had not alleged any physical injury connected to or caused by the Plaintiff’s alleged emotional distress.

The court also found that the Plaintiff’s claims for civil conspiracy failed because the Plaintiff had not alleged that all members of the purported conspiracy shared a common purpose, but rather, merely alleged that they took acts that furthered the alleged purpose of the conspiracy.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Monday, May 9, 2022

Motion To Dismiss Punitive Damages Claim Granted Where Evidence of Recklessness Was Lacking in "Run-of-the-Mill Intersectional Collision" Case

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 25, 2022 Nealon, J.), the court addressed a Motion for Partial Summary Judgment filed by a Defendant in a motor vehicle accident case seeking to dismiss punitive damages asserted against the Defendant on the ground that the evidence presented by the Plaintiff was insufficient as a matter of law to sustain the Plaintiff’s claims of recklessness.

The employer Defendant also sought to dismiss the Plaintiffs’ direct liability claim for negligent hiring, training, and supervision of the employee under an argument that the employer’s admission that the employee was acting within the scope of her employment at the time of the accident.

Relative to the punitive damages claims, after noting that there was no evidence in the record that the Defendant driver was speeding, driving while impaired or distracted by cell phone use, or otherwise engaged in unreasonable conduct manifesting a conscious disregard of a known or obvious risk posing a high probability of harm to others, the court granted the Defendant's Motion to Dismiss the claim for punitive damages.

The court additionally noted that, based upon the facts of this “run-of-the-mill intersectional collision,” the Plaintiffs’ expert was not permitted to express a legal opinion that the Defendant driver was chargeable with “reckless indifference” as defined by Pennsylvania law, particularly since the record did not contain an adequate basis in fact for that opinion.

The court also rejected the Plaintiffs’ attempt to assert that the Defendant employer’s post-accident investigation of the collision did not cause or contribute to the accident or the harm that the Plaintiff had suffered and, as such, could not serve as a basis for the Plaintiff’s punitive damages claims. Judge Nealon otherwise stated that there was no other evidence in the record that the Defendant employer acted in a willful, wanton, or reckless manner.

As such, the Motion to Dismiss the Punitive Damages Claim was granted.

On the separate claim of direct employer liability for the alleged negligence in selecting, training, and supervising employees and their activities, the court allowed this claim to proceed after finding that Pennsylvania case law provides that a Plaintiff may pursue such a claim against an employer on theories of direct and vicarious liability, either at the same time or alternately, and Plaintiffs need not surround a direct liability claim against the employer if the employer acknowledges an agency relationship with the employee. As such, the employer’s Motion for Partial Summary Judgment with regards to the independent claim for negligent hiring, training, and supervision was denied.

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

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?


Friday, May 6, 2022

Another Court Rules That the Time Courts Were Closed Due to COVID-19 Pandemic Are Not To Be Deducted From the Delay Damages Computation

In the case of Yoder v. McCarthy Construction, Inc., May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), the trial court issued Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million dollar verdict of the Plaintiff.

Of note, the court rejected the Defendant’s assertion that the trial court erred in awarding delay damages for the period that the court was closed due to the COVID-19 pandemic. 

The court ruled that the plain language of Rule 238 indicates that delay damages are appropriate due to the delay that is not the fault of any party. The court found that a court closure due to a pandemic falls within this definition. 

The court additionally noted that the trial court’s closure during the pandemic “did not prevent defense counsel from picking up the telephone, scheduling a Zoom hearing, or sending a text message to opposing counsel indicating the desire to make an offer to settle this case.” See Op. at 11. 

The trial court judge indicated that the court’s closure could have served as an encouragement to the parties to settle and that, the fact that it did not, did not entitle the Defendant to a reward when the underlying purpose of delay damages is to discourage dilatory conduct.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 19, 2022).

Liquor Liability Exclusion Found Not To Apply Against a Multi-Claim Complaint

In the case of AIX Specialty Ins. Co. v. American Legion Department of Pennsylvania, No. 2:21-CV-023380-MAK (E.D. Pa. March 14, 2022 Kearney, J.), the court addressed a declaratory judgment action regarding coverage potentially owed to an American Legion relative to an underlying personal injury claim filed by a Plaintiff who was injured by a gun shot wound in an American Legion after the assailant was allegedly served alcohol while that assailant was allegedly visibly intoxicated.

After the court’s review of the liquor liability exclusion contained in the policy and determined that certain claims asserted by the Plaintiff could potentially fall within such coverages allowed by the policy, the court found that the exclusion at issue did not apply in this matter involving a multi-claim complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).