Tuesday, June 30, 2009

REMINDER: Upcoming August 27th CLE Seminar at Mohegan Sun Casino in Wilkes-Barre, PA

August 27, 2009
Mohegan Sun Casino
Wilkes-Barre/Scranton, Pennsylvania

The Northeast Pennsylvania Trial Lawyers Association and the Pennsylvania Defense Institute are working together to present a CLE program currently set to take place during the afternoon of Thursday, August 27, 2009 at the Mohegan Sun Casino in Wilkes-Barre/Scranton, Pennsylvania. It is hoped that members of both the plaintiff's bar and the defense bar, along with area insurance claims representatives and professionals, will be in large attendance.

Topics and presenters are currently being finalized and will likely include an ethics hour, an auto law update, tips on jury selection, info on the new Medicare Set-Asides law, and a civil litigation (non-auto) update. I plan to present the civil litigation update.

This program will be followed by a cocktail happy hour reception to which judges from all around Northeastern Pennsylvania have been invited to attend. Of course, once all is said and done, there are many nice restaurants to have a dinner followed by some gambling if you so desire. More information to follow as it comes out.

Sunday, June 28, 2009

Summary Judgment for Defendant Store in Slip and Fall Case

In the case of Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D.Pa. June 16, 2009), the Eastern District Federal Court granted summary judgment in favor of the defendant store on a notice defense in a slip and fall case.

The plaintiff was injured when she allegedly slipped and fell on a bit of bubble bath on the floor of the store. She sued the store on a premises liability negligence claim. After discovery, the defendant store moved for summary judgment on the grounds that the plaintiff could not produce evidence of the length of time the spill remained on the floor prior to the moment the plaintiff encountered it and fell.

In reviewing the notice defense, the court stated that in order to establish actual or constructive notice on the part of the defendant, the plaintiff had to prove that the defendant had a hand in creating the dangerous condition or that the condition existed for a sufficient amount of time that the defendant should have noticed it and cleaned it up in the exercise of reasonable care towards its customers.

The Hower court noted that the courts of Pennsylvania have "'consistently required a plaintiff to provide some proof as to the length of time a spill existed on the floor to establish constructive notice....'" The court provided a thorough review other Pennsylvania decisions granting summary judgment in the absence of such evidence and confirmed that constructive notice may not be inferred from the circumstances.

In Hower, no concrete evidence was presented as to the length of time the spill was on the floor. It was additionally noted that there was no evidence presented as to any footprints or tracking through the spill, even though the store was very busy on the day of the incident. The plaintiff also admitted that she saw no dust or dirt in the spill. Consequently, the court found no evidence to even suggest that the spill existed long enough such that the defendant, in exercise of ordinary care, should have discovered it and cleaned it up.

The court also rejected the plaintiff's contention that the store negligently failed to adhere to its "safety sweep" program of periodically checking the aisles for dangerous conditions. The court refused to allow the plaintiff to utilize evidence of the lack of safety sweeps to overcome the lack of evidence pertaining to the duration of the spill. In other words, the court noted that the defendant's alleged failure to do a safety sweep "says nothing about how long the spill was present." Accordingly, summary judgment was entered in favor of the store.

Tuesday, June 23, 2009

Pennsylvania Supreme Court Upholds Validity of Household Exclusion--Again

On June 22, 2009, the Pennsylvania Supreme Court issued its decision in Erie Insurance v. Baker, 2009 WL 1741756 (Pa. 2009). In a 4-3 decision, the Court upheld Erie’s UIM “household exclusion.”

The case involved an injured party who was operating his motorcycle which was insured for UIM coverage by Universal Underwriters at the time of the subject 1999 accident. The injured party initially recovered from the third party tortfeasor as well as the limits of the Universal Underwriter’s UIM coverage that covered his own motorcycle.

The injured party then sought to stack UIM coverage from a policy he had with Erie Insurance covering other three vehicles, but not the motorcycle he was riding at the time of the accident. That Erie insurance policy had stacking affiliated with the available UIM coverage.

Erie filed a declaratory judgment action asserting that it did not owe UIM benefits to the injured party in light of the “household exclusion” in the Erie policy. This exclusion essentially provided that there was no UIM coverage available to the injured party under the Erie policy for incidents involving the insured being injured while occupying another motor vehicle owned by the insured but not covered under the Erie policy.

The exclusion had been upheld by the trial court and the Superior Court. The injured party attempted a "novel" argument to the Supreme Court that the household exclusion violated Section 1738 of the Motor Vehicle Financial Responsibility Law, pertaining to "Stacking of uninsured and underinsured benefits and option to waive," in that the exclusion prevented the injured party from stacking his Erie UIM benefits when he elected and paid for such stacked UIM benefits.

The majority in the Pennsylvania Supreme Court decision (Greenspan, Castille, Eakin and Saylor) held that the exclusion was a valid and unambiguous preclusion of coverage for risks that Erie had not accounted for when they determined the premium to be paid by the injured party. In other words, Erie was found not to be required to pay out UIM benefits for a vehicle that, although a vehicle in the same household, was not a vehicle covered under the Erie policy. The Court also concluded that the “application of the household exclusion in this case does not involve 'stacking' at all.”

As such the Erie Insurance Exchange v. Baker case involves yet another example of the Pennsylvania Supreme Court upholding the validity of the "household exclusion" in automobile insurance policies. This policy exclusion has been repeatedly upheld by the Supreme Court as valid and enforceable time and time again. See, e.g., Prudential Prop. & Cas. Ins. Co. v. Colbert,813 A.2d 747 (Pa. 2002); Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998). See also Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa.1994)(upholding similar "family car exclusion").

Thanks to David Cole, Executive Director of the Pennsylvania Defense Institute for bringing this decision to my attention.


In the June 22, 2009 post below entitled "Recent Jury Verdict Entered in Pike County in Automobile Accident Case," I incorrectly listed the Plaintiff's counsel in the Beach v. Schaefers and Diaz case. The correct identity of the Plaintiff's attorney is Danielle Mulcahey, Esquire of the same law firm listed of Wright and Reihner of Scranton, Pennsylvania. The correction has been edited into the post below as well.

President Obama Nominates New Jersey U.S. District Court Judge Joseph A. Greenaway, Jr. for a seat on the Third Circuit Court of Appeals

Over this past weekend, on Saturday, June 20, 2009, President Obama nominated Judge Joseph A. Greenaway, Jr. for a seat on the United States Court of Appeals for the Third Circuit. Judge Greenaway currently sits on the United States District Court for the District of New Jersey located in Newark.

Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and also currently teaches at Cardozo School of Law.

Judge Joseph A. Greenaway, Jr., 51, has served as a U.S. District Court Judge in New Jersey for more than 12 years. Prior to coming to the federal bench as appointed by President Clinton in 1996, he was an in-house general attorney at Johnson & Johnson for six years. Before that, Judge Greenaway served as an Assistant U.S. Attorney in Newark where he worked in the Criminal Division. Prior to that he also worked in private practice and clerked for Judge Vincent Broderick in the U.S District Court for the Southern District of New York.

The Judge is a graduate of Columbia University and Harvard Law School, the law school being President Obama's alma mater.

Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and currently teaches at Cardozo School of Law. If his nomination is approved, he will fill the seat vacated when Judge Samuel A. Alito was elevated to the United States Supreme Court.

There remains one more seat to be filled on the Third Circuit. There is speculation that that vacancy will be filled by way of a nomination of a Pennsylvania Judge.

Information for this post was obtained from www.webnewswire.com/node/459055 and other news sources.

Monday, June 22, 2009

Recent Jury Verdict Entered in Pike County in Automobile Accident Case

According to the June 19, 2009 edition of the Pike County Legal Journal a recent jury verdict was handed down on June 12, 2009 in the Pike County automobile accident case of AURORA AND DONALD BEACH, Plaintiffs v. CHRISTINE SCHAEFERS, JESUS DIAZ, and DELBY DIAZ, Defendents, Docket No. 76-2005-Civil.

The case arose out of a car accident that occurred at around 7 p.m. on February 14, 2003 on U.S. Route 6 in Westfall Township at the light for the on-ramp to Interstate 84 around 7 p.m. The Plaintiff was a passenger in a vehicle being operated by Defendant Diaz.

Defendant Schaefers, prior attempting to make a left turn onto the I-84 on ramp, came to a stop in straight travel lane, as opposed to the left-hand turning lane. While stopped in the traffic lane, Defendant Schaefer's vehicle was rear-ended by Defendant Diaz's vehicle in which the Plaintiff, Aurora Beach, was located as a passenger. The Plaintiff alleged injuries to her to both her right knee and lower back.

It was undisputed that Defendant Schaefers was not in the left hand turning lane and was stopped in the wrong long lane of travel for such a turn. It was also undisputed that the left hand turning lane had a red light while the remaining straight lanes of travel, in which Schaefers’ vehicle was stopped, had a green light.

Both sides submitted the testimony of medical experts concerning the injuries Plaintiff sustained as a result of the accident and her need for future medical treatment. Testimony revealed Plaintiff had a herniated disc in her lower back and that she had undergone two knee surgeries and would probably need a knee replacement in the future. At the time of trial, Plaintiff was 23 years of age and had a life expectancy of 64.9 years.

Following a two-day jury trial, the jury entered a verdict in favor of the Plaintiff in the amount of $310,000. The jury found Defendant Schaeffers 80% negligent for stopping in the wrong lane of travel and found Defendant Delby Diaz 20% negligent for rear-ending the Schaefer vehicle.

The jury awarded the Plaintiff $300,000 for future medical expenses, but only $5,000 for pain and suffering, and only $5,000 for loss of enjoyment of life, for a total award of $310,000. The jury made no award for disfigurement or embarrassment and humiliation.

It appears that the Pike County jury bought into an argument that the Plaintiff may need future medical treatment, including surgery. Showing that the county is still relatively conservative when it comes to pain and suffering awards, the jury may have felt that, as long as the Plaintiff is able to treat with the medical expenses damages awarded, then the Plaintiff should have less pain and suffering. Of course, this is speculation and only a suggestion as to how the jury may have come to their decision.

The Presiding Judge at trial was the Honorable Gregory H. Chelak. Plaintiff's counsel was Danielle Mulcahey, Esquire from the Scranton law firm of Wright & Reihner. Defendant Schaefer was represented by Kevin Hayes, Esquire of the Scranton law firm of Scanlon, Howley & Doherty. Defendant Diaz was represented by the Scranton law firm of Byrne, Neyhart & Higgins.

Sunday, June 21, 2009

Pennsylvania Supreme Court Declines Opportunity to Add Negligence Principles to Strict Liability Doctrine

Last week, in the case of Bugosh v. I.U. North America, 2009 WL 1663998, PICS Case No. 09-1010 (Pa. June 17, 2009), the Pennsylvania Supreme Court declined an opportunity to address an important issue of whether negligence concepts should be introduced into the strict liability doctrine currently employed under Pennsylvania law.

The appeal arose out of a 2005 jury verdict that held I.U. North America, a successor of a supplier that sold non-asbestos products, liable for Edward Bugosh's exposure to asbestos. Bugosh, who died while his case was in trial, worked with asbestos provided by Pittsburgh Gage, I.U. North America's predecessor, until 1966. His wife, Judith R. Bugosh, pursued the case in her own right and as administrator of her late husband's estate.

During arguments before the Supreme Court before the case was dismissed as improvidently granted, the Defendant Corporation argued that the company should be allowed to present expert testimony that mesothelioma -- the disease caused by exposure to asbestos -- was a medical unknown until 1965. The defense was raising the concept of foreseeability in this strict liability case by arguing that, since the danger was unknown and not foreseeable, blame could not be attached to the defendant for an alleged failure to warn.

Such an argument would apparently be allowed under the proposed adoption of the Third Restatement of Torts but is currently not allowed under the present status of Pennsylvania strict liability law, which does not allow for consideration of negligence principles of law; rather, if a plaintiff proves the case, a defendant is "strictly liable."

In a one-line Order and without explanation, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted." However, two justices -- Thomas G. Saylor and Chief Justice Ronald D. Castille -- dissented from the majority and wrote that "adjustments [to the state's current law] are long overdue."

One wonders why the Court, after having the issues briefed and after having heard oral argument from the attorneys, simply did not see the matter through and settle the issues presented with a decision and a reasoned opinion. Apparently, the majority of the court did not feel that the case before them properly and fully presented the issue for their full consideration.

In his lengthy dissent, noting his disagreement with that proposition, Justice Saylor reviewed the currently recognized strict product liability law under Section 402A of the Second Restatement of Torts, and why he explained why he felt the Pennsylvania courts would be better served to replace it with Section 2 of the Third Restatement of Torts, which allows for consideration of negligence concepts in strict liability cases.

According to Justice Saylor, "the court should no longer say negligence concepts have no place in 'strict-liability' doctrine in Pennsylvania, when this simply is not accurate in our tort scheme, or in any scheme purporting to recognize that manufacturers and distributors are not outright insurers for all harm involving their products."

Justice Saylor also stated that the "reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind. The Restatement would serve as a far more rational platform from which to make modest future adjustments, if necessary."

This dissenting opinion will surely assist defendants in attempting to push through this change in the law in the future. Until then products liability litigators will have to await another day for either the Court or the Legislature to update Pennsylvania law in this regard.

Tuesday, June 16, 2009

Pennsylvania Supreme Court Reverses Itself and Allows Nurses to Testify as Experts in Certain Medical Malpractice Actions

In a decision handed down yesterday, the Pennsylvania Supreme Court in the case of Freed v. Geisinger Medical Center, 2009 WL 1652856, 77 MAP 2007 (Pa. June 15, 2009) took the rare step of overturning one of its own prior decisions that precluded nurses from offering medical opinions when testifying as experts in a civil trial.

The Plaintiff in Freed sued various medical institutions alleging that the nursing staff at the facilities were negligent in preventing and treating his pressure wounds, or bedsores, resulting in the Plaintiff needing surgery and therapy. At trial, the Plaintiff presented a registered nurse as his expert witness to testify regarding the relevant nursing standard of care and to offer her medical opinion on the causation issue.

The trial court sustained the Defendants' objections to the nurse offering her medical opinion on the grounds that she was not a medical doctor. The trial court would go on to grant a compulsory nonsuit in favor of the Defendants when the Plaintiff failed to offer any other medical testimony on the causation issue.

In it Rule 1925 opinion relative to the Plaintiff's appeal, the trial court asserted that, under the prior Pennsylvania Supreme Court decision of Flanagan v. Labe, 690 A.2d 183 (Pa. 1997), the nurse was not competent to offer a medical opinion on the causation issue because such an opinion constituted a medical diagnosis, which the nurse was prohibited from making under the Professional Nursing Law, 63 P.S. Section 211, et seq.

On appeal, the Superior Court disagreed with the trial court and felt that the nurse was competent to provide her expert opinion both on the appropriate standard of nursing care and on the issue of causation. The Defendant medical facilities then appealed to the Supreme Court, arguing that the Superior Court's opinion was in conflict with the Flanagan decision.

In Freed, the Pennsylvania Supreme Court felt that the time had come to overturn the Flanagan decision for several reasons. First, the Flanagan rule was found to conflict with Pennsylvania's well established liberal standards regarding expert testimony. The Court also felt that the Flanagan decision did not have any support for its application of the Professional Nursing Law to the liberal rules governing the competency and admissibility of expert testimony. Also, the Freed Court noted that the Flanagan decision had led the lower courts to engage in repeated efforts to carve out exceptions to that prior decision.

Accordingly, the Supreme Court in Freed held that its prior decision in Flanagan must be overruled "to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion regarding medical causation."

In footnote 8 of its opinion, the Freed court acknowledge that its decision to overrule Flanagan may only have limited impact given the Legislative enactment of the MCARE Act, effective since 2002. That Act mandates that, in medical professional liability lawsuits, in order for expert witnesses to be qualified to testify on issues such as the appropriate standard of care, causation, and the nature and extent of injuries, the expert witness must be a physician licensed to practice medicine and must be engaged in, or recently retired from, active clinical practice or teaching.

This would obviously preclude nurses from serving as experts in medical professional liability lawsuits. However, the Freed Court noted that its decision may allow nurses to testify as experts in cases that did not involve medical professional liability actions against physicians, such as cases against non-physician health care providers or other like professional liability actions. The Court suggested that nurses may also be permitted to testify as experts in criminal cases.

The Freed court opted to apply its drastic change in the common law regarding experts retroactively to the case before it. As such, the Superior Court's reversal of the entry of a nonsuit in favor of the medical institution Defendants was affirmed and the case was remanded back to the trial level for a trial at which the court was instructed to assess the competency of the Plaintiff's expert medical witness nurse under the standards set forth in the MCARE Act and the case of Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995)("...the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.").

Given the admitted limited application of this decision in a typical medical malpractice action against a physician where it still appears that only doctors will be permitted to testify as experts against defendant doctors, it remains to be seen if this decision will have any great impact in medical malpractice cases against defendants other than doctors. For example, although the decision opens the door for plaintiffs to secure cheaper experts in the form of nurses, consideration will have to be given as to how such nurse experts will hold up in the proverbial battle of experts against an expert doctor retained by the defense.

Saturday, June 13, 2009

The Assumption of Risk Doctrine is Alive and Well in Pennsylvania

The following two recent cases confirm that the Assumption of Risk Doctrine remains alive and well in Pennsylvania. Copies of these cases may be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and providing them the below noted PICS Case Nos.

Cochrane v. Kopko, 2009 WL 1531646, PICS Case No. 09-0956 (Pa.Cmwlth. June 3, 2009)

Recognizing the continuing validity of the assumption of the risk doctrine in Pennsylvania, the Commonwealth Court affirmed a trial court's decision that a county did not breach any duty of care to a prison inmate injured in his cell. In so ruling, the appellate court noted that saying that the inmate assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor of land to protect an invitee against such dangers.

Concisely, in Cochrane, the court found that an inmate assumed the risk of his own injuries when he allegedly tried to slide open his malfunctioning cell door from his top bunk bed as opposed to getting down off the bed and too the floor first and attempting to open the door from that safe position. The inmate fell off his top bunk, hit the sink in the cell and struck the cell door, allegedly resulting in personal injuries to the inmate.

Apparently, the inmate had chosen not to come down off the bed because that process involved putting a foot down on a sink, sliding down and putting his other foot on the sink, then stepping down onto the toilet, and finally to the floor.

There's a joke in there somewhere, I just can't flush it out at the moment.

Vinikoor v. Pedal Pennsylvania, Inc., 2009 WL 1544267, PICS Case No. 09-0948 (Pa.Cmwlth. June 4, 2009)

In this separate case confirming that the assumption of risk doctrine remains a viable defense in Pennsylvania, the Commonwealth Court held that a participant in a bike tour assumed the risks inherent in biking on highways.

In Vinikoor, the defendant bike tour organizer had created a route and provided a map to the cyclists in which certain caution areas were noted. The map did not note a caution at the intersection where the front tire of the Plaintiff's bike caught a groove and caused the Plaintiff to crash and be injured.

The court found that the Plaintiff knew, or should have known that falling and encountering defective road conditions were part of the risks of cycling on roadways and, therefore, the Plaintiff was found to assume the risks associated with that activity.

The court also noted that the no-duty rule under the assumption of risk doctrine provides that a defendant owes no duty to warn, protect or insure against risks that are common, frequent, expected, or a known part of the activity at issue.

As such, the Commonwealth Court affirmed the entry of summary judgment in favor of the bike tour operator for these reasons as well as others.

For a more detailed discussion of the Assumption of Risk Doctrine I invite you to click on the following link to take you to my JDSupra.com Profile and Documents to review an article of mine entitled "Dead or Alive? The assumption of risk doctrine in Pennsylvania" which appeared in the July 31, 2006 issue of the Pennsylvania Law Weekly and summarized the status of the doctrine in Pennsylvania: http://www.jdsupra.com/post/documentViewer.aspx?fid=8a0f9813-ab34-44f8-b016-8e58321faf82.

Friday, June 12, 2009

Federal Middle District Court of Pennsylvania Addresses Post-Koken Issue

In Bukofski v. USAA Casualty Ins. Co., 2009 WL 1609402, No. 3:08-CV-1779 (M.D.Pa. 2009, Munley, J.) a decision handed down three days ago on June 9, 2009, Federal Middle District Judge James M. Munley held in a post-Koken case that a plaintiff may proceed on a bad faith claim against an insurance company who issued a new insurance policy without an arbitration clause without notifying the insured-plaintiff of the removal of the arbitration clause from the policy.

The Bukofski case arose out of a motor vehicle accident that occurred on October 11, 2007. The plaintiff eventually filed a lawsuit against her own carrier USAA alleging that, among other things, the carrier purposefully withheld first party benefits and UIM benefits with respect to the accident. The case was filed in Luzerne County, removed to the Middle District Federal Court and came before Judge Munley on the defendant carrier's Motion to Dismiss.

With respect to the allegation that the carrier had acted in bad faith by unilaterally removing the arbitration clause from the UIM portion of the policy without notice to the insured-plaintiff, the plaintiff complained that the carrier took such actions to delay the payment of UIM benefits and to attempt to secure leverage in settlement discussions by exposing the plaintiff to a protracted lawsuit as opposed to a quicker arbitration. The plaintiff was also upset that the carrier had removed the clause without explaining the ramifications of such removal on the plaintiff's ability to recover UIM benefits under the policy.

The carrier defended by arguing that the mere removal of the arbitration clause was not bad faith, particularly since the removal of the clause had happened months before the accident. The carrier also asserted that, in any event, it was within the rights of the carrier to remove the clause in light of the decision in Insurance Federation of Pennsylvania, Inc. v. Koken, 889 A.2d 550 (Pa. 2005), which held that automobile insurance policies in Pennsylvania are no longer required to include arbitration clauses.

Judge Munley noted that, after his review of the issue, he believed "it would be inappropriate to dismiss this part of the complaint at this time." The Judge was "not convinced" that the bad faith statute did not apply to the carrier's act of removing an arbitration clause from an insurance policy.

Judge Munley further noted that the "presence of an arbitration clause deals directly with the defendant's contractual obligations and clearly arise from the insurance policy." As such, the Judge ruled that "[i]f, as plaintiff asserts, the defendant removed the clause without notification to the plaintiff in order to force favorable settlements of UIM claims, then a statutory bad faith claim might be established." Accordingly, the carrier's Motion to Dismiss in this regard was denied.

Elsewhere in the opinion, Judge Munley also rejected the carrier's Motion to Dismiss the bad faith claim under a preemption argument. That is, the carrier argued that the plaintiff's bad faith claim was based primarily upon allegations of improper conduct by the carrier with respect to the carrier's handling of the plaintiff's separate first party medical benefits claim.

More specifically, the defendant carrier asserted that the plaintiff's statutory Section 1783 bad faith claim was thereby preempted by the remedies provided by statutes related to first party medical benefits claims, such as Section 1797 of the Motor Vehicle Financial Responsibility Law.

Judge Munley disagreed with this assessment and found that, based upon the allegations of the Complaint, it was clear that the plaintiff was making a bad faith claim based upon the carrier's handling of the UIM claim and not the carrier's handling of the first party medical benefits claim. The Judge noted that "[m]erely because some of the bad faith evidence alleged by the plaintiff relates to first-party medical benefits claim does not mean that the bad faith claim with regard to the handling of the UIM claim is preempted." Accordingly, the carrier's Motion to Dismiss based upon MVFRL preemption was denied.

In his opinion, Judge Munley did grant some portions of USAA's Motion to Dismiss. The Court agreed with the carrier that the plaintiff's count in the Complaint of an alleged failure of the Defendant to comply with the duties of good faith and fair dealing in handling the plaintiff's insurance claims should be dismissed as Pennsylvania law does not recognize a separate common law remedy to an insured for a violation of an implied duty of good faith and fair dealing with respect to the breach of an insurance contract. Rather, this type of claim was found to merge with, and be a part of, the plaintiff's separately asserted breach of contract claim.

Similarly, the Court also granted the Defendant's Motion to Dismiss the plaintiff's claim of a breach of a fiduciary duty with regards to the facts alleged. While the Court rejected the carrier's contention that there was no fiduciary duty between the carrier and its insured, the Court did dismiss this count of the Complaint finding that the breach of fiduciary duty claim was redundant of the breach of contract claim.

Judge Munley also dismissed the plaintiff's claim that the Defendant carrier had acted negligently towards her as that claim was subsumed by the breach of fiduciary duty claim. Also, as the parties' relationship was by contract, the separate tort action was barred by the "gist of the action" doctrine under Pennsylvania law. Judge Munley also rejected the plaintiff's claim of negligent infliction of emotional distress claim in this bad faith claim.

The remainder of the opinion addresses procedural issues with respect to the wording of the Complaint.

It remains to be seen whether this case will be (or even can be at this stage) appealed to the Third Circuit. Plaintiff's counsel is Tim Lenahan of the Scranton law firm of Lenahan & Dempsey, and John Nardone, Esquire. USAA was represented by Attorneys Bryon Kaster and Charles E. Haddick, Jr. both of the Camp Hill law firm of Dickie, McCamey & Chilcote, P.C.

Thanks to Paul Oven, Esquire of the Moosic law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Sunday, June 7, 2009


The following Guide to Depositions is offered to those individuals who are faced with a requirement that they appear for a deposition and who may know nothing about the process. This Guide may also be printed out by attorneys and included as an additional enclosure in their letters to clients and witnesses providing them with a Deposition Notice or otherwise advising them of the need to appear for a deposition.


What it is, what to expect, and how to act.


Daniel E. Cummins, Esquire

Many people who have been notified or subpoenaed to attend a deposition in a lawsuit do not even know what a deposition is. Simply put, a deposition is your giving of a statement, under an oath to tell the truth, regarding your knowledge, if any, of the subject matter of a lawsuit.

A deposition may also be described as a meeting, usually in the office of one of the attorneys involved, that you are required to attend by a court order to answer questions relevant to an ongoing litigation. There will be no judge or jury present. The proceeding is generally an informal and relaxed one, but is still considered to be serious in nature.

At the beginning of the meeting, the court reporter (the person hired by one of the attorneys to type up everything that is said) will ask the witness to raise their right hand and swear that they will agree to tell the truth, the whole truth, and nothing but the truth.

The witness will then be questioned by the opposing attorney or attorneys about any knowledge, if any, the witness may have regarding the subject matter of the lawsuit. If the person being questioned is represented by an attorney, your attorney will be sitting next to you during the deposition.

Prior to the deposition being completed, the person who will be questioned will usually have an opportunity to meet with their attorney to go over the ground rules of a deposition. Some of the ground rules, or tips, for a deposition are, as follows:


The number one rule of a deposition is to tell the truth. At the beginning of the deposition, the witness being questioned will be put under oath by the court reporter. The oath is the same as the oath that one may take before testifying in a courtroom. If you tell the truth and tell it accurately, you should have no fears in terms of responding to the attorney’s questions.


If you do not hear or understand the question, politely tell the attorney that and ask him to repeat or rephrase the question. Attorneys are wordy and are routinely asked by witnesses to repeat or clarify the questions they ask. As such, the questioning attorney almost always will not be offended by your request for a rephrasing or repeating of the question.

It is important to note that, if you answer a question, it will be assumed that you heard it properly and understood the question. Therefore, it is important to speak up if you have not fully heard or understood the question presented.


You should closely listen to the question and answer only the question presented. Answer the question and then stop. The quicker and to the point your answers are, the quicker the deposition will be concluded and you will be on your way.


To repeat, listen to the question and answer only that question. The attorney will likely be asking every question under the sun regarding the subject matter. Let his questions elicit information rather than you volunteering information to the attorney. There is no need to assist the opposing attorney in doing his or her job.

Remember, as nice and as polite the other attorney is to you, he is representing your opponent in this lawsuit. Trust that it is the other attorney’s intention to use whatever information he gathers from you against you during his representation of the opposing party.


If you do not know the answer to a question presented or can not remember the answer, and that is the truth, simply say, “I don’t know,” or “I can’t remember.” Even the opposing counsel does not want you to guess at any question. Rather, he or she only wants to know what you know as you sit there at the deposition. You may be asked to provide specific information regarding times or distances. If you can provide a fair estimate as opposed to a guess, do so. If you can only guess in terms of a response, do not and simply say you are unable to provide an estimate in response to the question.


Make sure you understand the question, think about your response, and present it in a concise fashion.


For the benefit of the court reporter, who is typing every spoken word, it is requested that only one person at a time be speaking at a deposition. This also allows for a clear typewritten transcription of the testimony by the court reporter of questions by the attorney and answers by the witnesses, without overlapping testimony. Therefore, even if you anticipate where the attorney is going with his questions, please let him or her get the question out entirely before you begin your answer. The attorney will almost always extend the same courtesy of allowing you to complete your answer before moving onto the next question. The court reporter will appreciate this courtesy as well.


Speak loud enough and clearly so that everyone in the deposition room can understand your testimony.


Expect the attorneys to object during the course of the deposition. If an attorney begins to assert an objection while you are speaking, stop speaking and wait for instructions to recommence your testimony.


Treat others how you wish to be treated. Do not lose your temper. Avoid jokes and wisecracks as a lawsuit is considered to be a serious matter. Do no respond to the attorney’s questions with questions of your own.

Remember, a main purpose of the deposition is for the other attorney to assess your demeanor and behavior so that he or she can assess whether or not you will be a good witness at trial that a jury will like and believe. Also keep in mind to be on your best behavior when you are in the presence of the opposing attorney even when you are not testifying as it is likely that the attorney will continue to be observing you and your conduct

As much as you may be upset about being involved in a lawsuit, being courteous, polite, and respectful is the best way to make a favorable impression on the opposing attorney, which will only serve to benefit your case. Your overall behavior at a deposition can affect your case just as much as your testimony.

Friday, June 5, 2009

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

by Daniel E. Cummins

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.

This article is reprinted here, with permission, from the June 30, 2008 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Thursday, June 4, 2009

Pennsylvania Supreme Court Agrees to Address Negligent Infliction of Emotional Distress Issues

In what some commentators are touting as the first time in twenty (20) years that the Pennsylvania Supreme Court will addressed the issue of negligent infliction of emotional distress and the physical injury requirement, the Court granted allocatur yesterday on the following question in the case of Toney v. Chester County Hospital, No. 813 MAL 2008 (June 3, 2009):

"Whether the Superior Court erred in finding a cause of action for negligent infliction of emotional distress exists where emotional distress results from the negligent breach of a contractual or fiduciary duty, absent a physical impact or injury."

According to the Superior Court opinion in Toney, 961 A.2d 192 (Pa.Super. 2008), the case involves a mother, who gave birth to a son with profound physical deformities, including but not limited to, the child not having any arms below his elbow or legs below his knees, after the mother had been previously told that a pelvic ultrasound revealed no fetal abnormalities. The Plaintiff-mother was awake and coherent during the delivery and was immediately horrified and shocked when she saw the totally unexpected and severe abnormalities of her baby as he was born.

The mother brought professional negligence action against the doctor who the performed and read pelvic ultrasound examination, the hospital where doctor was on staff, a radiological services provider, and the university where doctor was a faculty member.

The Court of Common Pleas, Chester County, No. 05-05122, Cody, J., entered an order sustaining preliminary objections for failure to state a cause of action on behalf of all defendants, except radiological services provider. On appeal, the Superior Court affirmed in part and reversed in part essentially holding that the mother stated a claim for negligent infliction of emotional distress but not intentional infliction of emotional distress.

A key issue in the case, that the Supreme Court will apparently address, is whether a physical impact is necessary to support a claim of negligent infliction of emotional distress particularly where, as here, it is based upon a theory of a breach of a fiduciary duty, i.e. the agreed upon duty of the defendants to provide medical care to the Plaintiff.

In addition to arguing that a physical impact is not necessary, the Plaintiff-mother is also asserting on appeal that the requirement of a physical manifestation, or injury, from the emotional distress can be satisfied under a claim of negligent infliction of emotional distress by pleading grief, rage, hysteria, nervousness, sleeplessness, insomnia, nightmares, flashbacks, depression, humiliation, headaches, nausea, etc.

The Superior Court in Toney held that, with a negligent infliction of emotional distress claim in a case based upon an alleged breach of a fiduciary duty, i.e. a professional negligence case, a physical impact to the plaintiff is not required and the allegations noted above with respect to a physical injury or manifestation of the emotional distress were sufficient.

It remains to be seen how the Pennsylvania Supreme Court will come down on these important issues. Either way, the Court's decision will have a significant impact on medical malpractice cases in Pennsylvania.

I again thank James Beck, Esquire for tipping me off on this development in the law. Attorney Beck is affiliated with the Philadelphia office of the Dechert, LLP law firm and is the co-writer of an excellent legal blog entitled Drug and Device Law found at http://www.druganddevicelaw.blogspot.com/.

Monday, June 1, 2009

Pennsylvania Superior Court Upholds Legislative Prohibition Against Seat Belt Defense

In an opinion handed down yesterday, the Pennsylvania Superior Court, among other things, upheld the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e) in the case of Gaudio v. Ford Motor Company, 2009 Pa.Super. 102 (June 1, 2009)(Fitzgerald, J., concurring and dissenting in part). The decision was a 2-1 decision on the seat belt defense issue and the issue of the decedent's pre-impact conduct, but unanimous in all other respects.

Gaudio is a strict products liability action in which the Plaintiff attempted to prove that the vehicle's airbag system was defective and caused the Plaintiff's injuries in a single car accident. The Plaintiff's decedent's vehicle slid off the road and landed in a ditch. The decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford countered by asserting that the airbag system was not defective and that the Plaintiff's decedent's injuries were caused by other pre-impact factors including the fact that the decedent was not wearing his seat belt and was unnecessarily closer to the steering wheel, reaching down to the floor area, when the airbag activated.

The trial court in Pike County recognized the general legislative prohibition of mentioning a plaintiff's non-use of a seat belt during a civil trial but felt that perhaps defendants should be allowed to use the defense in certain very limited circumstances such as in this case where the issue of seat belt use was central to the resolution of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of the plaintiff, it could perhaps be used for other limited purposes relevant to the case.

I note that the trial court's decision was a topic of a previous article of mine from the October 1, 2007 Pennsylvania Law Weekly entitled "Time to Unbuckle the Seat Belt Defense?" To view this article, please click on this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=1d844477-c47e-4922-8adb-846662f9c1c7.

In that article, I proposed that, in this day and age, essentially twenty years after the seat belt law went into effect, the time had come to add an additional incentive to those last remaining non-compliant drivers (as well as all drivers) to use seat belts particularly with all of the scientific evidence existing today that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

I concluded the article by noting that in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared the the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

As anticipated, the Superior Court in Gaudio opted to follow the black and white letter of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The Superior Court also noted that it was not a proper function of the courts to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the suggestion was that any change in the law would have to come from a Legislative amendment.

For the reasons stated in the above-referenced article, I again suggest that the time has come for that change in the law. More specifically, there is firmly established scientific evidence that shows that the use of seat belts minimizes the extent of injuries and chances of death. Also, a large majority of motorists use seat belts on a routine basis and the seat belt defense would only be applicable to that small number of vehicle occupants lacking common sense and still foolish enough to still ride in motor vehicles without belting up. It would also appear that the abolishment of the prohibition against the seat belt defense would further the current recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who broke the law by still refusing to wear seat belts after all of these years.

The Gaudio decision is also noteworthy for the Court's additional evidentiary ruling that the decedent's other pre-impact conduct, such as reaching to the floor prior to the impact and bringing his body closer to where the air bag would activate should have been precluded by the trial court. In this regard, the Superior Court upheld the general strict products liability rule that negligence concepts, such as the comparative or contributory negligence of an injured party, except in very limited circumstances not found to exist in this matter, were not permissible in a products case.

Also of note in the Gaudio decision was the Superior Court's upholding of the continuing viability of the crashworthiness doctrine. Lastly, the Superior Court also addressed the issue of the admissibility of evidence of compliance with Federal safety standards in a products case.

I again thank James Beck, Esquire of the Philadelphia office of the Dechert, LLP law firm for advising me of this decision. I also again note that Attorney Beck is the co-writer of an excellent legal blog entitled Drug and Device Law found at http://www.druganddevicelaw.blogspot.com/. I invite you to check out his blog.