Monday, July 28, 2014

Interesting Article on Dangers Facing Right to Fair and Impartial Jury in Pennsylvania (Article by Thomas J. Foley, III)

Here is a LINK to an article by Scranton, PA attorney Thomas J. Foley, III of the Foley Law Firm in which he offers an erudite analysis of the dangers faced by the constitutional right to a fair jury in Pennsylvania.

The article is entitled "Pennsylvanians' Constitutional Right to Juries Free of Any Suspicion of Partiality in Danger?" and was published in the latest edition of the Pennsylvania Bar Association Quarterly.

Friday, July 25, 2014

Philadelphia Bar Association Issues Advisory Opinion on Facebook Issues

The Professional Guidance Committee of the Philadelphia Bar Association recently issued guidelines on how lawyers may instruct their clients on the use of social media sites after the legal representation has begun.  Among the highlights were the following notes:

-"A lawyer may advise a client to change the privacy settings on the client's Facebook page, but may not instruct or knowingly allow a client to delete/destroy a relevant photo, link, text or other content."

-"Though an opposing party may not be able to gain unrestricted access to a client's information after the privacy settings are changed, the opposing party may still obtain the information through discovery or subpoena."

"A lawyer may not instruct a client to either alter, destroy, or conceal any relevant information regardless [of] whether that information is in paper or digital form."

-"A lawyer must obtain a copy of a photograph, link or other content posted by a client on the client's Facebook page in order to comply with a Request for Production or other discovery request."

Here is a LINK to the Pennsylvania Law Weekly article on the topic by P.J. D'Annunzio which serves as the source of this Tort Talk blog post.

Here is a LINK to the Ethics Opinion.  I send thanks to Attorney Thomas Wilkinson, Jr. of the Philadelphia office of Cozen & O'Connor for securing a copy for me.

Northeastern Pennsylvania Attorney Matt Keris Takes Over as President of Pennsylvania Defense Institute

Matthew P. Keris

In notable legal news out of Northeastern Pennsylvania, Attorney Matt Keris of the Moosic, Lackawanna County office of Marshall, Dennehey, Warner, Coleman & Goggin was recently installed as the President of the Pennsylvania Defense Institute at their recent Annual Meeting at the Bedford Springs Resort in Bedford Springs, PA. 

Congratulations to a great lawyer and a great person.  The PDI lucky to have him at the helm for the next year.

Thursday, July 24, 2014

DRINKS ALL AROUND: Centre Co. Trial Court Lets All Kinds of Alcohol Evidence In

Judge Thomas King Kistler of the Centre County Court of Common Pleas recently addressed pre-trial motions in limine pertaining to the admissibility of consumption of alcohol by both parties in a motor vehicle versus pedestrian accident in the case of Losch v. Bittner and GEICO, No. 2011 – Civil – 5746 and 5747 (C.P. Centre Co. May 30, 2014 Kistler, J.).

According to the opinions, the consolidated cases involved a pedestrian who was struck while standing or lying on a highway at 1 a.m. in the morning.  Although the pedestrian claimed he ended up on the highway due to first being struck by a phantom vehicle that fled the scene (giving rise to a UM claim against GEICO), followed by the pedestrian then being run over by the tortfeasor defendant’s vehicle, there was evidence gathered in discovery that the Plaintiff had been drinking alcohol during the evening leading up to the accident.
There was also evidence gathered during discovery in this matter that the tortfeasor defendant driver had also been separately drinking during the evening in question.  The tortfeasor hit the pedestrian and continued on to his nearby home. 

The next day, the driver called 911 and reported seeing body on the roadway but did not mention that he had hit the pedestrian.  During the subsequent investigation by the police, the tortfeasor defendant admitted that he had indeed hit the pedestrian.
GEICO prevailed on its motion in limine seeking permission to offer evidence at trial on the pedestrian’s alleged intoxication so as to support GEICO’s argument of contributory negligence on the part of the pedestrian plaintiff.  Judge Kistler’s opinion on that motion in limine provides a thorough review of the case law on the analysis of whether such evidence should be admitted, or excluded as prejudicial.  Here the evidence of intoxication (slurred speech, odor of alcohol, BAC in excess of legal limit) was found admissible.
Judge Kistler also granted the pedestrian plaintiff’s motion in limine to offer into evidence admissions by the defendant driver that he had a few beers to drink during the evening leading up to the accident even though there was no other substantial evidence presented that the driver was intoxicated at the time of the accident. 
However, Judge Kistler, who condemned the driver for leaving the scene and not immediately advising the 911 operator that he had hit the pedestrian, took a novel approach by finding that it was within his broad discretion to find that the defendant driver’s drinking earlier that evening was admissible (even without evidence of intoxication) because the driver had left the scene and basically destroyed the evidence by not reporting the accident until the next day and by not submitting to police scrutiny at the time of the accident.
The court noted that it had the discretion to infer that the driver's fleeing of the scene evidenced the driver's consciousness of guilt or an attempt to conceal his inebriation.
It was otherwise reported that, with all of this intoxication evidence being allowed in, the case was settled prior to trial. (Perhaps this was a motivating factor in the judge allowing all of the evidence in and thereby putting pressure on all of the parties involved.).
Anyone wishing to review the Losch decision pertaining to the admission of intoxication evidence against a plaintiff on a contributory negligence theory, click HERE.
Judge Kistler's decision allowing the admissibility of evidence that a defendant driver who fled the scene was drinking alcohol in the evening leading up to the accident may be viewed at this LINK.
I send thanks to Attorney Gary Weber of the Williamsport law firm of Mitchell Gallagher  for bringing these decisions to my attention.

Tuesday, July 22, 2014

A Split of Authority Develops on Admissibility of Bad Faith Expert Testimony

In his recent decision in the case of Monaghan v. Travelers, No. 3:12CV1285 (M.D.Pa. July 16, 2014 Munley, J.), Judge James Munley bucked the recent trend of Pennsylvania court decisions holding that expert testimony is unnecessary in insurance bad faith cases by ruling that, under F.R.E. 702, each bad faith case should be decided on its own merits in determining whether such expert testimony would be beneficial in assisting a jury of lay people in understanding the issues presented.

In denying the defense motion in limine to preclude the Plaintiff's bad faith expert, the court deferred its decision on whether the Plaintiff's proposed bad faith expert testimony impermissibly addresses the ultimate issues presented.  The court granted the defense the right to raise this objection at trial if necessary.

Anyone wishing to review this decision of Judge Munley in the Monaghan case may click HERE.

I send thanks to Attorneys Scott Cooper and Michale E. Kosik, both of the Harrisburg law firm of Schmidt Kramer, for bringing this case to my attention.

For decisions going the other way, click HERE to review a post on the Federal Western District of Pennsylvania case of Schifino v. GEICO case,  and HERE to go to the Federal Western District Court decision in the case of Smith v. Allstate.

Click HERE to read a post the prior Federal Middle District of Pennsylvania decision issued by Judge Malachy E. Mannion in Scott v. GEICO in which Judge Mannion ruled that bad faith testimony was not necessary in this context.

Release From Liability Form Upheld in Poconos Snow Tubing Case

In his recent decision in the case of Dunlap v. Davenport v. The Villas at Tree Tops and Fairway, PICS Case No. 14-0883 (Monroe Co. April 28, 2014 Williamson, J.), Judge David Williamson of the Monroe County Court of Common Pleas upheld a release from liability form containing an exculpatory clause signed by a Plaintiff relative to the Plaintiff's participation in snow tubing at the Fernwood Hotel and Resort in the Poconos.  

The court found that the release form was a proper contract between the parties and that the Plaintiff was free to go snow tubing elsewhere or simply not go at all.  

The court also rejected the Plaintiff’s contentions that the release form should be deemed to be unenforceable in that it had extremely small printing with all of the writing on a single page.  

The court additionally rejected the Plaintiff’s contention that there was no evidence that the Plaintiff had read and understood the release terms that protected the Defendant from liability arising out of the snow tubing activities.  

The court otherwise rejected an argument that the release form violated Pennsylvania public policy.  

Judge David Williamson
Monroe County
Overall, because the release form was found to be a valid contractual agreement between the parties, Judge Williamson granted the Defendant’s Motion for Judgment on the Pleadings on the personal injury claim.  

The court additionally dismissed the husband’s loss of consortium claim as that claim was derivative of, and dependent upon, the wife’s personal injury claim.  

I do not have a copy of this one.  Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source: "Case Digests," Pennsylvania Law Weekly (June 2014).

Monday, July 21, 2014

Lehigh County Trial Court Dismisses Punitive Damages Claim Based Solely on Cell Phone Use During Auto Accident

In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.

In the opinion, the court noted that there were allegations that the defendant driver was distracted by her cell phone use when she made a slow left hand turn across the Plaintiff's path of travel and an accident resulted.

The court reviewed several cases handed down to date on this issue and essentially ruled that the mere use of a cell phone while driving without more, does not amount to factual support sufficient to sustain an averment of recklessness and attendant punitive damages.  Rather, such allegations only support a claim of negligence.
Anyone wishing to review this cell phone decision out of Lehigh County may click this LINK.

I send thanks to John Hendrzak of the Center Valley, PA law firm of Hendrzak & Lloyd for bringing this notable decision to my attention.