Thursday, April 17, 2014

"Remember the Days When We Had To..."


By virtue of an amendment to the relevant Rules handed down by the Pennsylvania Supreme Court, the ridiculous and time-consuming requirement of finding and including useless parallel citations to the Pennsylvania State Reporters in briefs filed in the appellate courts has been eradicated.

Hallelujah!  What a welcome change.

See the Rule change HERE.

I send thanks to Attorney Jim Beck of the Philadelphia law firm of Reed Smith and the writer of the award-winning DRUG AND DEVICE LAW BLOG for this excellent tip!

Federal Middle District Court Allows First Party Bad Faith Claim to Proceed

In her recent decision in the case of Neal v. State Farm, PICS Case No. 14-0387 (M.D. Pa. Feb. 18, 2014 Kane, J.), Judge Yvette Kane of the Federal District Court for the Middle District of Pennsylvania allowed a Plaintiff’s bad faith claim to proceed under allegations that the carrier knowingly used a biased independent medical examiner to provide negative reports and and thereby support the carrier’s denial of payments in a first party context. 


The Plaintiff also sued under various provisions of the Motor Vehicle Financial Responsibility Law pertaining to the dispute over the reasonableness and necessity of the Plaintiff’s treatment.  


According to a summary of the Opinion, after being involved in an accident, the insured injured party began receiving payments for her medical expenses from the first party benefits carrier.   Approximately a year later, the carrier retained a doctor to perform an independent medical examination.  


Based upon the IME, the carrier denied further payment of the insured’s medical bills.   The IME report contained conclusions that the Plaintiff had fully recovered from the accident and that the Plaintiff showed signs of symptoms magnification and inappropriate illness behavior.


The Plaintiff insured filed a bad faith suit alleging violations of the Motor Vehicle Financial Responsibility Law and the Unfair Trade Practices Law.  


According to the summary, the insured Plaintiff agreed to the dismissal of claims for breach of contract and deceit.   The Court otherwise allowed the claims for bad faith and other claims related to the carrier’s alleged nonfeasance and misfeasance for failure to pay medical bills to go forward into the discovery phase of the case.   


Anyone desiring a copy of Judge Kane's Opinion may click this LINK.  The accompanying Order can be viewed HERE.




Source:  "Case Digests," Pennsylvania Law Weekly.

Correction for Summary of Phillips v. Lock Decision


In yesterday's post pertaining to the case of Phillips v. Lock, I made an incorrect statement that a defendant must file both a Motion for a Directed Verdict and a Binding Jury Instruction in order to preserve the right to present a Motion for Judgment Notwithstanding the Verdict (JNOV) following the entry of a verdict.

To the contrary, and as reaffirmed in the Phillips v. Lock decision, a defendant must file either a Motion for a Directed Verdict or a Binding Jury Instruction in order to preserve the right to present a Motion for Judgment Notwithstanding the Verdict (JNOV) following the entry of a verdict.

I have corrected this in the original blog post and point out the correction here.

I apologize for this error and send great thanks to Attorney Ed Shaughnessy, an excellent trial attorney in Easton, PA for pointing me in the right direction.

Wednesday, April 16, 2014

Police Reports Generally Not Admissible in Auto Accident Litigations




In its recent decision in the case of Phillips v. Lock, 2014 PA Super 38, No. 1634 EDA 2013 (Pa. Super. Feb. 28, 2014 Shogan, J., Ott, J., and Platt, J.) (Opinion by Platt, J.), the Pennsylvania Superior Court found that a trial court properly denied a Motion to Amend a Complaint to add a new and distinct party on the morning of trial after the statute of limitations had run in a motor vehicle accident litigation.   The Plaintiff was attempting to join an alleged owner of a vehicle under an negligent entrustment theory. 
 
This decision is also notable for the Court’s Opinion that a police report containing statements made at the accident scene were not admissible under Pa. R.E. 803(8) or as an official record exception to the hearsay rule at 42 Pa. C.S. § 6104.
 
In addition to essentially finding that the Plaintiff had waived the evidentiary issue regarding the police report, the appellate court nevertheless noted that Section 3751 of the Vehicle Code specifically provides that a police report “shall not be admissible as evidence in any action for damages… arising out of a motor vehicle accident.”   75 Pa. C.S. §3751(b)(4).  
 
The Court additionally noted that “[a] police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence.  Nor should a party be able to get such a report into evidence in an indirect manner.”   Phillips at p. 23 citing Rox Coal Co. v. WCAB (Snizaski), 807 A.2d 906, 914 (Pa. 2002) (other citations omitted).  
 
Here, the Court found no abuse of discretion by the trial court in precluding the police report given that the police report did not witness the accident and the Motor Vehicle Code otherwise precludes the admission of such a report into evidence.  
 
The Court in Phillips additionally precluded evidence of a Social Security Disability award as such information was found not to be admissible under Pa. R.E. 803 (pertaining to a declarant’s then-existing state of mind exception; medical diagnosis of treatment exception).
 
The Plaintiffs in this matter were asserting that their medical expert should have been permitted to testify to records reviewed from the Social Security Administration Disability record and from a disability insurance carrier.  
 
In so ruling, the Court noted that the records at issue did not reference the subject motor vehicle accident.   Moreover, according to the disability records, the first date of disability was not until nine (9) months after the accident and it was indicated in those records that the Plaintiff’s symptoms had developed the night before that date of the onset of the disability.  
 
This decision is also notable for the court's reiteration of the rule that a  party must present a Motion for a Directed Verdict at the close of the case or a proposed binding jury instruction in order to support the presentation of a motion for judgment notwithstanding the verdict (JNOV) after the entry of an adverse verdict.

Anyone wishing to review this Opinion may click HERE.



Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (4/7/14).

Source of imagewww.orlandocriminaldefenseattorneyblog.com

Monday, April 14, 2014

REGISTRATION OPEN AND SPONSORSHIPS OPPORTUNITIES AVAILABLE FOR LACKAWANNA PRO BONO'S GOLF TOURNAMENT - JUNE 2, 2014


Federal Magistrate Judge Mehalchick to Join Judicial Panelist at TORT TALK EXPO CLE SEMINAR - SEPTEMBER 26, 2014

I am pleased to announce that Federal Middle District Judge Karoline Mehalchick has agreed to join the panel of Judges for the "View From the Bench" portion of the September 26, 2014 Tort Talk Expo at the Mohegan Sun Casino. 

The judicial panel hour will be an ethics hour with an emphasis on tips to improve chances for positive results at settlement conferences and/or during jury selection.

Federal Middle District
Magistrate Judge
Karoline Mehalchick

The Annual Tort Talk Expo is being moved from the Spring to the Fall this year:
 
PLEASE SAVE THE DATE
 
September 26, 2014
 
TORT TALK EXPO 2014
 
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
 
(Application to be submitted for 3 Substantive, 1 Ethics Credit)
 
 
 
 
 
TENTATIVE PROGRAM TO INCLUDE:
 
 
12:00 pm - 1:00 pm 
"Back to School"
A TORT TALK AUTO LAW/CIVIL LITIGATION UPDATE
by
Daniel E.  Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 
1:00 pm - 2:00 pm 
BAD FAITH UPDATE
by
 
Timothy G. Lenahan, Esq.
LENAHAN & DEMPSEY
 
Scott B. Cooper, Esq.
SCHMIDT KRAMER 
 
Neil T. O'Donnell, Esq.
O'DONNELL LAW OFFICES

Moderator: Daniel E. Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 {BREAK: 2:00 pm - 2:15 pm}
 
 
  2:15 pm - 3:15 pm
MEDICAL HOUR
with
 
Dr. Lucian Bednarz  - Physiatrist - on RSD
and
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
NORTHEASTERN REHABILITATION ASSOCIATES
 
 
 {BREAK:  3:15 pm - 3:30 pm}
 
 
 3:30 pm - 4:30 pm
VIEW FROM THE BENCH
Ethical Considerations
for
Settlement Conferences
and
Jury Selection
 
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
 
 
JUDICIAL PANELISTS
 
Supreme Court Justice Correale F. Stevens 
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 
[More Judges possibly to be added]
 
 
 
 4:30 pm - 6 pm
POST-SEMINAR COCKTAIL RECEPTION
 
 
THIS YEAR'S CLE SEMINAR WILL BE HELD IN A BALLROOM IN THE NEW HOTEL and SPA AREA AT THE MOHEGAN SUN


TABLE VENDOR SPONSORS TO DATE (Alphabetical):
 
At The Scene

 
Courtside Documents


 
Exhibit A
 
 
 
LexisNexis



Medical Legal Reproductions
 
 


Network Deposition Services




Northeastern Rehabilitation Associates




RecordTrak

 

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 dancummins@comcast.net 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. 
 
 
More details to follow.
 
 
 
In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
 
SEPTEMBER 26, 2014
 
 

Saturday, April 12, 2014

Repeat of Yesterday's Blog Post on Joyce v. Jack Locker Constr. (Trial Continuance Request) WITH CORRECTED LINK TO OPINION

Lackawanna County Courthouse (Right)
Scranton Electric Building (Left)


In his recent decision in the case of Joyce v. Jack Locker Const., Inc., 2013 WL 6437917 (C.P. Lacka. Co. Dec. 2, 2013 Nealon, J.), Judge Terrence R. Nealon denied a defendant's request for a continuance of a trial on the basis of the unavailability of a defense expert.


In so ruling, the court noted that the notice for the original status conference cautioned counsel to secure the availability of the parties and any expert witnesses for trial as once a trial is set in Lackawanna County "no continuances will be granted due to the unavailability of counsel or a party or expert witness."  Judge Nealon otherwise noted that, under Pa.R.C.P. 216 a trial continuance could be secured for other reasons not applicable to this matter such as, for example illness of an attorney or material witness or where circumstances beyond a party's control make it impossible or fundamentally unfair to proceed to trial.


In this matter, the motion for continuance was filed one week before trial and 2 1/2 months after the trial date was set.  Here the court noted that there had been ample time to complete the videotaped trial testimony of the expert if necessary.


Based on the above the motion for a trial continuance was denied.


Anyone wishing to review a copy of this Opinion by Judge Nealon may click this LINK