Tuesday, December 29, 2009

Top 10 Pennsylvania Civil Litigation Cases/Issues of 2009

As we come to another year and get inundated with year-end lists, some interesting, some not--here's my list of what, in my estimation, proved be the top cases/issues in Pennsylvania civil litigation matters:

10. New Judges Across the Commonwealth

In 2009, the voters elected Joan Orie Melvin to the Pennsylvania Supreme Court along with Judge Judy Olson, Judge Paula Ott, Judge Sallie Mundy, and Judge Anne Lazarus to the Pennsylvania Superior Court.

Two open seats on the Commonwealth Court were won by private practice attorneys Kevin Brobson, from Harrisburg, and Patricia McCullough, from Pittsburgh.

In other state judicial election news, Luzerne County voters elected not to retain Judge Peter Paul Olszewski, Jr. for a second 10 year term on the trial court bench.

9. Medical Malpractice Issues

In 2009, the Pennsylvania Supreme Court took the rare step of overturning one of its own prior decisions. In the medical malpractice case of Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009), the Court went against its prior ruling and now held that nurses should not be precluded from offering medical opinions when testifying as experts in a civil trial. It is noted, however, that the import of this decision is tempered by the legislative enactment of the MCARE Act which mandates that, in medical malpractice cases, only doctors can serve as experts against doctors.

Also, in the case of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009), the Superior Court held, for the first time, that it was reversible error for a trial court judge to give the previously accepted "error of judgment" jury instruction to the jury in a medical malpractice case.

8. Seat Belt Defense Gets a Flicker of Life and Then is Killed

In the case of Gaudio v. Ford, Judge Harold A. Thomson, Jr. of the Pike County Court of Common Pleas gave the seat belt defense a flicker of life by allowing it, in part, during the course of a trial in early 2009, only to see the Pennsylvania Superior Court strike down the defense in its opinion found at Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa.Super. 2009).

An analysis of these cases can be found in my article "Seat Belt Defense Ban Wearing Thin," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=254be516-293e-462b-81db-b7a868b1f342.

7. Negligent Infliction of Emotional Distress

Constituting what some commentators are touting as the first time in 20 years that the Pennsylvania Supreme Court has agreed to address the ambit of the cause of action for negligent of infliction of emotional distress and the physical injury requirement, the Court granted allocatur on the issue in the case of Toney v. Chester County Hospital, No. 813 MAL 2008 (Pa. 2009).

This may be one of the most highly anticipated decisions from the Pennsylvania Supreme Court in 2010.

6. Household Exclusion Upheld Again

In the case of Erie Ins. Exchange v. Baker, 972 A.2d 507 (Pa.Super. 2009), the Superior Court again rebuffed the plaintiffs' bar's attempt to have a UIM carrier's household exclusion overturned. This exclusion holds that there is no UIM coverage available to an injured party when that party was injured while occupying a vehicle in the household that was not covered under the carrier's policy issued to that party--i.e. the vehicle was covered by another carrier.

Generally speaking, the Court upheld the old adage that you can't get something for nothing. In other words, if the injured party hasn't paid a premium for the coverage, they are not going to be able to secure UIM benefits under that policy.


5. Former Judges Michael T. Conahan, Mark A. Ciavarella, and Michael Toole Resign from Luzerne County Bench Amidst Scandal

Enough said.


4. Ongoing Debate over the Assumption of Risk Doctrine

Over the past year a number of decisions came down on the issue of the continuing validity of the Assumption of Risk Doctrine under Pennsylvania law. While the Commonwealth Court repeatedly upheld the doctrine to dismiss suits by plaintiffs in the cases of Cochrane v. Kopko, 975 A.2d 1203 (Pa.Cmwlth. 2009) and Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233 (Pa.Cmwlth. 2009), the Pennsylvania Superior Court continued to question the ongoing validity of the doctrine in the case of Zeidman v. Fisher, 980 A.2d 637 (Pa.Super. 2009).

This split of authority was analyzed in my article entitled "Alive and Well: Assumption of Risk Doctrine remains a valid defense," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=fda3f4da-9ebf-4f6c-b37c-ab0b1f69f528


3. Defense-friendly Premises Liability Decisions

2009 gave us a number of defense-friendly premises liability decisions whereby the notice defense was repeatedly upheld to dismiss plaintiffs' trip and fall and slip and fall cases. Basically, the courts found that where a plaintiff is unable to show how long a spill or defect existed, the plaintiff can not sustain his or her burden of showing that the premises owner knew or should have known of the defect and/or had enough time to remedy the situation.

These cases are summarized in my article "You'd Better Watch Your Step," which can be viewed at http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.


2. Puls v. Means, 982 A.2d 550 (Pa.Super. 2009)

Superior Court holds that where a Plaintiff secures UIM benefits first, defendant tortfeasor on the third party lawsuit side of the case is entitled to a set-off against the verdict in the amount of the UIM benefits previously secured in order to prevent a double recovery by the Plaintiff. Case may be working its way up to the Pennsylvania Supreme Court.

If the Supreme Court agrees to hear this issue, this too will be a highly anticipated decision.


1. Post-Koken Consolidation Cases

In 2010, we saw a slew of trial court opinions come down on the issue of whether the post-Koken cases involving both a third party claim and a UIM claim arising out of single motor vehicle accident should proceed separately or in a consolidated fashion under one caption. Overall, there have been approximately 15 cases in favor of consolidation and three cases (two from Butler County and one from York County) in favor of the cases proceeding in two separate suits.

An analysis of these post-Koken cases can be viewed by clicking on the "Post-Koken Scorecard" in the right-hand column of this blog


Here's to hoping the year 2010 proves just as interesting!

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