Monday, June 24, 2019

Puntive Damages Claims Based in Part on Alleged Cell Phone Use Allowed to Proceed in Monroe County


In the case of Miller v. Repasch, No. 517-Civil-2019 (C.P. Monroe Co. April 17, 2019 Williamson, J.), the court issued an Order only denying the Preliminary Objections filed by a Defendant against claims of recklessness and a claim for punitive damages in a motor vehicle accident case involving cell phone use.   The court noted that the allegations in the Complaint were sufficient to allow those claims to proceed forward.  

Reviewing the allegations in the Complaint reveal that this matter arose out of a head-on collision in which the Defendant allegedly failed to operate his vehicle at a safe and prudent speed, failed to take corrective action to avoid the impact, failed to have his vehicle under proper and adequate control, failed to keep a proper lookout, drove his vehicle in careless disregard for the safety of others, and allowed his attention to diverted or distracted thereby precluding the Defendant from being in his vehicle to a stop in sufficient time to avoid the collision.  

In the Plaintiff’s Complaint, it was alternatively pled that the Defendant reported that he crossed the center line as a result of having “blacked out,” or that, if the cause of the Defendant crossing the center line was due to knowingly operating an electronic device or other communication or listening device while operating a vehicle then such actions were done in conscious disregard of the risk that such distracted driving posed to the traveling public, including the Plaintiff.  

A copy of the Complaint is attached to the Order which can be viewed by way of the below link. 

Anyone wishing to review the Court’s Order issued in this matter (as well as a copy of the Complaint) may click this LINK. 

I send thanks to Attorney John B. Dunn of Matergia & Dunn in Stroudsburg, Pennsylvania.  

Pennsylvania Supreme Court Splits Evenly on Impact of Waiver of Liability Form


Tort Talkers may recall the case of Valentino v. Philadelphia Triathlon, 150 A.3d 485 (Pa. Super. 2016), in which the Superior Court ruled that a waiver form served to prevent a widow from suing for the death of her husband who died competing in a triathlon.

The prior Tort Talk posts on this case can be viewed HERE.

On June 18, 2019, the Pennsylvania Superior Court issued a Per Curiam Order affirming the Pennsylvania Superior Court decision upholding the waiver.  The Pennsylvania Superior Court was evenly split on the issue with Justice Wecht not participating.  As such, by operation of law, the Superior Court decision stands.

Here is a LINK to the Pennsylvania Supreme Court's Per Curiam Order.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Donohue's Dissenting Opinion can be viewed HERE,

Justice Dougherty's Dissenting Opinion can be viewed HERE.

Pennsylvania Superior Court Addresses Scope of Attorney-Client Privilege


In the case of Newsuan v. Republic Services, Inc.,  No. 1248 EDA 2018 (Pa. Super. June 20, 2019 Olson, J., Dubow, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.)(Olson, J., Concurring), the Pennsylvania Superior Court reversed and remanded a trial court's decision to grant a plaintiff's motion to compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.

The lower court opinions in this case are summarized in prior Tort Talk posts that can be viewed HERE.

According to the lower court's Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them. 

The trial court had ruled, in part, that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

The trial court also offered in a Rule 1925 Opinion that the appeal had no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation. 

The Pennsylvania Superior Court initially ruled that the issues pertaining to the attorney-client privilege were appealable under the collateral order doctrine.

The Superior Court went onto review the rules surrounding the attorney-client privilege and ruled that the witness statements at issue did fall within the privilege.  As such the lower court's ruling was reversed.

I send thanks to Attorney Matthew J. McColgan of the Philadelphia office of German, Gallagher & Murtaugh for bringing this decision to my attention.

Thursday, June 20, 2019

Pennsylvania Supreme Court Reaffirms That Risks and Complications of Surgery May Be Admissible


In Mitchell v. Shikora, 55 WAP 2017 (Pa. June 18, 2019)(Op. by Todd, J.)(Wecht, J., Concurring), a medical negligence case, the Pennsylvania Supreme Court addressed the admissibility of evidence regarding the risks and complications of a surgical procedure in a medical negligence case.

Consistent with the Court's recent decision in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), the Court found that evidence of the risks and complications of a surgery may be admissible at trial.

Anyone wishing to review the Majority Opinion of this decision may click this LINK.  Justice Wecht's Concurring Opinion can be viewed HERE.  Justice Donohue's Concurring Opinion can be viewed HERE.

Pennsylvania Supreme Court Clarifies Standard for Attorney Work Product Doctrine



In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2018)(Op. by Mundy, J.) (Donohue, J., Concurring)(Wecht, J., Concurring), the Pennsylvania Supreme Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

This matter was remanded back to the trial court for fact finding and application of the newly
articulated work product waiver analysis.


Anyone wishing to review the Opinion by Justice Mundy may click this  LINK.  Click HERE to read Justice Donohue's Concurring Opinion.  Click HERE to read Justice Wecht's Concurring Opinion.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.

Another Eastern District Federal Court Decision Holding that Gallagher Household Exclusion Case Applies Retroactively



Another Federal Eastern District Court has ruled that the the Pennsylvania Supreme Court decision in Gallagher v. GEICO applies retroactively.

The court in Stockdale v. Allstate, No, 19-845 (E.D. Pa.  June 17, 2019 Beetlestone, J.), basically same holding but with a slightly different rationale than the Eastern District of Pennsylvania Memorandum and Order in Butta v. GEICO decided a few weeks ago.  

Also, in Stockdale, the District Court holds that the application of Gallagher applies back four years from when the suit was filed.

Please click this LINK to view the Stockdale decision online.

I send thanks to Attorney Scott Cooper of the Schmidt Kramer law firm in Harrisburg, PA for bringing this case to my attention.

I note that Scott and I will be presenting a PBI sponsored Webinar on July 8, 2019 in the Gallagher v. GEICO case and its import on UM/UIM law.   Please click HERE if you would like to register for that CLE program.

Pennsylvania Superior Court Rules that Rear End Accident is Evidence of Negligence Per Se


In the case of Smith v. Wells, No. 2254 EDA 2018 (Pa. Super. June 7, 2019 Kunselman, J., Murray, J., and Pelligrini, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court granted a Plaintiff a new trial in a case where the trial court refused to grant the Plaintiff judgment as a matter of law in a case where the trial court erroneously refused to find that the Defendant’s actions in rear-ending the Plaintiff’s vehicle on the Pennsylvania Turnpike and causing a chain reaction accident amounted to negligence per se under the assured clear distance ahead rule found under 75 Pa. C.S.A. §3361.  

According to the Opinion, the Plaintiff was driving on the Pennsylvania Turnpike when he saw traffic braking ahead. The Plaintiff successfully brought his vehicle to a stop within the assured clear distance between himself and the car ahead without striking any vehicles.   The Defendant, who was traveling behind the Plaintiff’s vehicle, did not. 

During his testimony, the Defendant admitted that he did not stop quick enough and rear-ended the Plaintiff’s vehicle in front of him.  

In his opening statement to the jury, the defense counsel advised the jury that the collision was the Defendant’s fault “no question about it.”   At trial, the defense focused on the issue of whether the accident actually caused any injuries to the Plaintiff.   The defense also asserted that the Plaintiff had an extensive prior medical history and was already suffering from the same symptoms that he sought to attribute to the Defendant’s conduct in this matter.  

The Plaintiff moved for a directed verdict on the grounds that the Defendant negligently drove his vehicle into the rear of the Plaintiff's vehicle and breached the standard of care as a matter of law. The trial court denied that motion and submitted a verdict slip to the jury that contained a question of whether or not the Defendant was negligent. The jury answered that question in the negative.

The Plaintiff moved for a judgment notwithstanding the verdict on the question of negligence which was denied.  The Plaintiff also filed a post-trial motion seeking the same result.  The trial court denied that motion as well.  This appeal followed. 

On appeal, the Pennsylvania Superior Court reversed and rejected a prior statement by the Pennsylvania Supreme Court in a case from 1938, Cirquitella v. C.C. Callaghan, Inc., 200 A.588 (Pa. 1938), in which that Court noted, in part, that “the mere happening of a rear-end collision does not [at common law] constitute negligence as a matter of law on the part of the driver in the rear….” 

The Pennsylvania Superior Court in this Smith v. Wells case limited the Cirquitella decision to its facts and its ancient time period of 1938. The Superior Court noted that, in the recent times, the Pennsylvania legislature had passed 75 Pa. C.S.A. §3361 in which it is provided, in pertinent part, that “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.   * * *”

The Pennsylvania Superior Court in Smith v. Wells noted that “§3361 is a unified statute on safe-driving speeds and distances.”   The Smith v. Wells court held that this statute prohibits two distinct forms of illegal driving.  “The first is driving at any speed that is unreasonable and imprudent for the conditions and hazards of the road.   The second is driving at any speed that prevents a driver from fully braking before striking a car, pedestrian, or other object ahead."  

The Superior Court noted that a violation of these provisions of this statute amount to negligence per se on the part of the driver.  

In review the facts before it, the court stated that the evidence firmly established that the Defendant drove at a speed that made it impossible for him to stop his vehicle within the assured clear distance ahead and that the trial court, therefore, erred when it did not find that the Defendant’s violation of §3361 amounted to negligence per se. 

Significantly, the Pennsylvania Superior Court also noted that there was no claim by the defense that a sudden emergency existed or any other affirmative defenses “such as brake-failure, ice on the highway, or the Plaintiff’s contributory negligence to excuse this rear-end collision."  

As such, the Superior Court vacated the judgment entered in favor of the Defendant below and also reversed the Order denying the Plaintiff’s request for judgment notwithstanding the verdict.   The case was remanded for a new trial on the issues of causation and damages only (with the issue of negligence being considered decided).

Anyone wishing to review this decision may click this LINK.