Tuesday, June 18, 2019

Failure By Plaintiff to Produce Expert Report Leads to Dismissal of Med Mal Case

In the case of Warrick v. Scranton Quincy Hospital Co., LLC, No. 16-CV-1923 (C.P. Lacka. Co. March 25, 2019 Nealon, J.), the court granted Defendants’ Motions for Summary Judgment in a medical malpractice case where a Plaintiff failed to produce expert reports in support of the claims presented by the expiration of the Plaintiff’s expert deadline imposed upon the Plaintiff.  

According to the Opinion, the Plaintiff filed this malpractice action against numerous Defendants asserting a failure to timely and correctly diagnose and treat abdominal complaints, which negligence allegedly caused the Plaintiff to develop other issues requiring a surgical repair.  

The Plaintiff was originally represented by counsel who filed Certificates of Merits in support of the claims presented.   Later in the case, the Plaintiff’s attorneys withdrew their appearance.

The Plaintiff then failed to produce any expert report by the time of a court imposed deadline for the production of Plaintiff’s expert’s reports.  

Relying upon the law that holds that, except in cases of obviously malpractice where a lay juror could recognize negligence just as well as any expert witness, the court ruled that a Plaintiff must present expert testimony to establish the applicable standard of care in a medical malpractice action, the deviation from that standard, medical causation, and the extent of the alleged injuries and damages. 

Given that the Plaintiff had failed to produce an expert medical opinion following the completion of discovery and prior to the expiration of the deadline for the production of expert reports, the court found that the Plaintiff was unable to establish a prima facie case.   As such, the court granted summary judgment in favor of the Defendants. 

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

Monday, June 17, 2019

Gallagher v. GEICO Webinar Rescheduled for July 8th at Noon

The Pennsylvania Supreme Court's January 2019 decision in the case of Gallagher v. GEICO has reversed many years of precedent and created a seismic shift in the law.

At the request of the Pennsylvania Bar Institute (PBI), Attorneys Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, have developed this engaging 1-hour live webinar, reviewing the history of the law on the validity of the Household Exclusion in automobile insurance policies in Pennsylvania.

The fallout from the Gallagher v. GEICO decision will be reviewed, including whether the decision will have any retroactive effect.

The Live Webinar will take place on Monday, July 8, 2019 from noon to 1 p.m.  Attendees will earn 1 substantive CLE credit.

Please consider registering for this CLE Webinar that you could listen to and view a powerpoint presentation from your own desk.

Here is a LINK to the Registration page on the PBI's website.

Thanks for considering this CLE opportunity.

Friday, June 14, 2019


Need help bringing your case to a close?  Please consider utilizing CUMMINS MEDIATION SERVICES

Both sides will be pushed and/or pulled in a polite but firm and professional manner to that point where both sides are somewhat dissatisfied with the result but more than satisfied to agree to settle the matter.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

An Oldie But Goodie

It's hard to believe we are getting into June already--the sixth month of the year.  As we are at the mid-point of the year, I thought I would republish the below article of mine from the June 30, 2008  edition of the Pennsylvania Law Weekly.

A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress


Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.


By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.


Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.


A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.


Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.


Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.


Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.


There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.


In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.


It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.


Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.''

Daniel E. Cummins is a partner in the Scranton, PA law firm of Foley, Comerford & Cummins.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com

Thursday, June 13, 2019

Latest Pennsylvania Superior Court Decision on the Admission of Intoxication Evidence in a Personal Injury Matter

In the case of Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazrus, J., Kunselman, J.) (Op. by Colins, J.), the court affirmed the entry of a judgment in favor of the Plaintiff following post-trial motions in a motor vehicle accident matter. 

On appeal, the appellate court noted that evidence of alcohol or drug consumption by a person involved in an accident is admissible in a personal injury action only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.   

The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the Plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment. 

On the issue of punitive damages, the court reiterated a general rule of law that such damages can be awarded against the Defendant only if the Plaintiff shows that the Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk of injury.   The court noted that the fact that a Defendant knew of a possibility of accidents and did not undertake additional safety measures is not sufficient in and of itself to support a claim for punitive damages.  

Conversely, the court also noted that, in a case of a defendant who does not admit to knowledge of a danger, punitive damages may still be pursued where other circumstantial evidence can prove that the defendant had subjective knowledge of the risk of harm.  

In this matter, there is no evidence in the record to show that a corporate defendant consciously disregarded the risk of driver drowsiness. However, the court noted that a corporate defendant can be vicariously liable for the reckless conduct of an employee without proof that the employer’s conduct itself satisfied the standard of punitive damages.  

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

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

Wednesday, June 12, 2019


July 8, 2019 at noon:  
Gallagher v. GEICO:  A Seismic Change in UIM Litigation 

I have been advised by the PBI that the Webinar: Gallagher v. GEICO:  A Seismic Change in UIM Litigation created by myself and Scott Cooper has been rescheduled to take place on July 8, 2019 at noon.

Once the online Registration form is created, I will post it here.

July 11, 2019 at 9:30 a.m.:  
A Forrest Gump Themed Civil Litigation Update

I will be doing an encore presentation of A Forrest Gump Themed Civil Litigation Update at the Pennsylvania Defense Institute's Annual Meeting at the Bedford Springs Resort in Bedford Springs, PA on July 11, 2019.

Click HERE for the online registration form or contact the PDI at this LINK for more information.

Motion To Remand Denied After Federal Court Finds that Complete Diversity Exists

The standards for a federal court Motion to Remand a Case were recently addressed in the matter of Gentry v. Sikorsky Aircraft Corp., No. 15-1326 (E.D. Pa. April 22, 2019 Pratter, J.).   According to the Opinion, the corporate Defendants in this matter removed the case from Pennsylvania state court where the Defendants were citizens of Delaware and Connecticut and had complete diversity from the Plaintiff, who was a citizen of Tennessee, and were all of the real and substantial Defendants to the action had consented to the removal. 

The Plaintiff had filed a Motion for Remand which was denied.   The court found that there was complete diversity between the parties such that the removal was proper.  As such, the Plaintiff’s Motion to Remand was denied.  

Anyone wishing to review a copy of court's Opinion in this case may click this LINK.  

Source: “Digest of Recent Cases.”  The Legal Intelligencer (Online Edition) (May 23, 2019).