Sunday, September 27, 2009

Upcoming Seminars of Note in Northeastern Pennsylvania

I note the following upcoming seminars in Northeastern Pennsylvania. For more information, please contact me at dancummins@comcast.net:

Friday, October 9, 2009
28th Annual Lackawanna County Bench Bar Conference
Hilton, Scranton
(I will be presenting a 2009 Civil Litigation Update)

Thursday, November 5, 2009
Luzerne County Bench Bar Conference
Genetti's Convention Center, Wilkes-Barre
(I will be repeating the 2009 Civil Litigation Update)

Tuesday, November 17th
Pennsylvania Bar Institute (PBI)
Auto Law Update
Radisson Hotel, Scranton
8:30 a.m. - 12:45 p.m.

Wednesday, December 9, 2009
Pennsylvania Association for Justice (PAAJ)
Auto Law Update
9 a.m. - 1:30 p.m.
(I will be presenting a seminar on Arbitrations/Mediation Tips)


I thank Joe Cardoni and his computer presentation company Exhibit A for assisting me in the creation of powerpoint presentations for each of the CLE courses I will be presenting. I highly recommend the services of Exhibit A for any trials you may have, plaintiff or defense. Using Exhibit A to assist you in presenting your case can be the difference between winning or losing your case.

Exhibit A has offices in Northeast Pennsylvania, Philadelphia and New Jersey. Their website is www.exhibitadigital.com.

Saturday, September 26, 2009

A Lesson in Civility At Depositions

In the case of Huggins v. Coatesville Area School Dist., 2009 WL 2973044, PICS Case No. 09-1575 (E.D. Pa. Sept. 16, 2009), Judge Pratter provides a thorough lesson in the requirement of civility between attorneys at depositions and carved out a unique sanction to address the vexatious conduct between the attorneys involved. (A copy of this opinion can be secured, for a small fee, from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427 and giving the PICS Case Number noted above).

Judge Pratter began his opinion with this comment, "When lawyers place a higher value on being heard than on being understood, when they trample on civility, or when their supposed devotion to their clients leads to stridency or worse, they undercut the belief in the law and in the legal profession. At a minimum, uncivil, abrasive, abusive, hostile or obstructive conduct by lawyers impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Because such conduct tends to delay, and can even deny, justice, a presiding judge may be called upon to determine whether one or more adversary has committed sanctionable conduct. Events in this case present the Court with that unwelcome task."

In addressing the issue presented the Court emphasized that the first Rule in the Pennsylvania Bar Association's “Working Rules for Professionalism” reads, as follows:


Treat with civility the lawyers, clients, opposing parties, the Court, and all the officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.


A reading of the case in its entirety serves as a good reminder of the parameters of civility and professionalism for depositions.

Interestingly the court in Huggins declined to award a monetary sanction in response to defense counsel's motion for sanctions. Rather, the court found it more appropriate to order plaintiffs’ counsel to attend a continuing legal education course in civility and professionalism. Plaintiff’s counsel was also ordered to sit down with defense counsel for an informal meal “to facilitate the repair of their professional relationship.” Both attorneys were ordered to submit a joint letter to the court thereafter to confirm their compliance with this order.

Wednesday, September 23, 2009

Recent Slip and Fall Cases of Note

The below recent slip and fall cases of note were found in the Digests in the August 21, 2009 Pennsylvania Law Weekly. Copies of the opinions can be purchased from the Law Weekly for a nominal price by calling 1-800-276-7427 and providing the noted PICS Case Numbers.

In the case of Davis v. City of Chester, PICS Case No. 09-1536 (E.D. Pa. Sept. 9, 2009, Fullam S. J.), Defendants City of Chester and Amtrak were both granted summary judgment in a slip and fall case involving ice on a sidewalk.

The city was found to be immune from suit because the claims presented did not arise under any of the exceptions to the Pennsylvania Political Subdivision Tort Claims Act. More specifically, the real property exception does not apply to sidewalks. Also, the streets exception does not apply where the accident was not in a street.

The Court also noted that, for the sidewalk exception of the Tort Claims Act to apply, the cause of the fall must be an artificial condition or defect of the sidewalk itself. Under Pennsylvania law, ice and snow do not count under this exception even if it is shown that city employees often cleared the sidewalk.

Amtrak was granted summary judgment because it did not own or control the sidewalk in question. The Court also ruled that Amtrak had no liability for an abutting sidewalk unless the sidewalk conferred some benefit to Amtrak. As the sidewalk in question was across the street from the station, it conferred no benefit to Amtrak. Accordingly, the court granted summary judgment to both Defendants.


In the case of Murray v. Dollar Tree Stores, 2009 WL 2902323, PICS Case No. 09-1532 (E.D. Pa. Sept. 10, 2009 Kelly, S. J.), the court granted summary judgment to the Defendant store under a notice defense.

The Plaintiff asserted that she slipped and fell on a liquid on the floor of an aisle in a Dollar Tree Store. The Plaintiff admitted at her deposition that she did not know how long the liquid was there before she fell and there was no evidence about when the spill occurred. There was also no evidence presented that there was any tracking through the liquid or dirt in the spill so as to show it may have been there a while.

The only evidence the Plaintiff offered was that she was in the store for about 15 minutes prior to her fall and, therefore, the spill must have been present for that length of time as well. The Court summarily rejected this speculation.

The Murray Court ruled that a store owners is not an insurer of its patrons’ safety. Rather, a plaintiff must prove that the defendant store owner had actual or constructive notice of the condition. Constructive notice requires proof that the condition was present long enough that in the exercise of reasonable care the defendant should have known of the spill. This in turn requires evidence of the duration of the spill. Without such evidence, as here, a plaintiff cannot make out a case of negligence to proceed to a jury.

Significantly, the Court also rejected the Plaintiff's contention that the store failed to follow its own inspection procedures to keep the floors of the store safe. In addition to noting that the Plaintiff failed to offer any evidence of the inspection procedures of the store or any violation thereof, the Court also found that such evidence was immaterial in any event as it did not serve to establish how long a spill lasted on the floor to satisfy a showing of constructive notice of the condition on the part of the store owner.

In so ruling, the Court cited to Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D.Pa. June 16, 2009), another notice defense case with essentially the same analysis and result. That case was previously highlighted in this blog and can be found by going to the "Label" in the right-hand column of this blog and clicking on "Premises Liability" or "Slip and Fall."

Thus, these cases show an increasing willingness of the Pennsylvania courts to grant summary judgment to defendant store owners on a notice defense where a plaintiff admits that they can not state how long a spill was on the floor prior to the incident and where there is no evidence of foot tracks or dirt in or around the spill.

The courts have also repeatedly rejected plaintiffs efforts to attach liability to the defendant store owner in such cases under an argument that the store failed to follow its own floor inspection procedures. The courts have stated that such evidence does not offer any support to show how long a specific spill remained on the floor so as to establish constructive notice on the part of the defendant.

No Claim for Respondeat Superior Liability Against Municipality Under Section 1983 Civil Rights Action

In the recent case of Binder v. Kenderski, 2009 WL 2929778, PICS Case No. 09-1554 (E.D. Pa. Sept. 4, 2009 Stengel J), the Eastern District Federal Court of Pennsylvania again confirmed that there is no respondeat superior liability against a municipality under 42 U.S.C. § 1983. This has been a rule of law since at least the 1992 United States Supreme Court case of Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1992)

In this case, an Allentown police officer responded to an emergency call at a convenience store where he found the bloodied plaintiff sitting in front of the store asserting that he had been assaulted by another customer. The officer allegedly ignored the plaintiff's complaints and, instead, asked her if she had been drinking. He told her not to drive home. The officer allegedly did not do anything in terms of capturing any assailant or calling for medical help for the plaintiff.

Shortly thereafter, the plaintiff began to drive home and was pulled over by the same officer, who allegedly was waiting for her to drive away. The plaintiff was charged with driving under the influence.

The refused to submit to a blood test, and as a result, automatically lost her license for a year under the appliable law. However, the charges of DUI were later withdrawn at a preliminary hearing.

The pro se plaintiff later filed this action under 42 U.S.C. § 1983 against the officer and the city of Allentown for civil rights violations, including allegations of false imprisonment. The city moved to dismiss.

The court found that there is no respondeat superior liability against a municipality under section 1983. Any state claims asserted against the city in the Complaint were found to be barred by the Pennsylvania Political Subdivision Tort Claims Act, as the complaint did not allege a negligent act within any of the eight exceptions of that Act. As such, the claims against the city were dismissed.

A copy of this opinion can be secured, for a small fee, from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427.

Pennsylvania Superior Court Upholds Forum Shopping by Plaintiffs

In the case of Zappala v. James Lewis Group, 2009 WL 2922862, PICS Case No. 09-1533 (Pa.Super. Sept. 11, 2009), the Superior Court held that a plaintiff could engage in forum shopping as long as it did not constitute vexatious conduct.

The Plaintiff, a Delaware County resident, was injured while working as a flag person at a construction site in Chester County. She sued some Defendants from Chester County and some Defendants from Philadelphia in a case filed in Philadelphia County.

The Philadelphia Defendants were eventually dismissed by an unopposed Motion for Summary Judgment filed on the grounds that such Defendants had no ownership interest or responsibility over the subject construction site. This would seem to suggest that such Defendants were joined in the matter simply for the purpose of securing venue in Philadelphia.

After the Philadelphia Defendants were dismissed the Chester County Defendants filed a motion to transfer venue under the forum non conveniens doctrine. The trial court granted this motion noting that the Plaintiff had engaged in forum shopping. However, the Superior Court reversed.

In its opinion, the Superior Court noted that the Plaintiff's selection of the venue of the forum is but one factor to consider in the analysis. The Court held that forum shopping by a plaintiff, in and of itself, is not forbidden under Pennsylvania law. Such forum shopping would only be found to be improper if the plaintiff was engaging in vexatious conduct, i.e. the purpose of choosing the forum was to harass a defendant.

Here, the Chester County Defendants only asserted inconvenience to the witnesses and parties along with other traditional arguments typically found in a forum non conveniens motion. There was no showing of vexatiousness or harassment. As such, the Superior Court reversed the trial court's granting of the motion.

A copy of this opinion can be purchased from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427 and giving the above PICS Case Number.

Tuesday, September 22, 2009

Case in Point As To Why Complete Bar of Assumption of Risk Doctrine Still Needed

As you may recall, I have posted a couple of entries to this blog dedicated to the question of whether the Assumption of Risk Doctrine remains as a valid defense in the Commonwealth of Pennsylvania.

According to the previous posts, the Commonwealth Court of Pennsylvania appears to be firm in its belief that the doctrine is still a viable defense, while the Superior Court continues to question the ongoing validity of the defense as a complete bar to a Plaintiff's cause action. To view these posts, scroll down the right side of this blog to the "Labels" section, and then click on "Assumption of Risk."

Clearly, there is a need for a clarification from the Pennsylvania Supreme Court on this issue.

I wanted to share with you a September 18, 2009 article on the assumption of risk doctrine in California entitled "Burning Man Fire Victim's Suit Goes Up In Smoke." The article was written by Bob Egelko from the San Francisco Chronicle. The article can be found at found at:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/17/BAHN19OMPU.DTL&tsp=1#ixzz0RlQTRt9N

According to this article, a plaintiff attended a bonfire at which it was customary to throw items into the bonfire. After the bonfire collapsed but was still burning, the plaintiff chose to voluntarily walk 7 to 10 feet into the flames, then took a few steps more in order to throw a photograph into the fire. As he was taking the last few steps into the inferno, he tripped, fell and was badly burned. The plaintiff later sued the San Francisco-based promoter of the event for negligently allowing people to approach the bonfire without safe pathways.

On September 16, 2009, the California Supreme Court handed down a unanimous decision upholding the trial court's dismissal of this suit under the assumption of risk doctrine. I offer this story as further support for the proposition that the defense of the assumption of risk doctrine as a complete bar to a plaintiff's cause of action has a continually valid place in the law.

In cases such as this, where a plaintiff knowingly and voluntarily places himself or herself at the risk of injury from a known danger (this guy walked INTO a bonfire, for crying out loud), a defendant should not have to undergo the risks associated with a lawsuit by defending it under comparative negligence principles in the hopes of a favorable result. Rather, such extreme cases of a plaintiff voluntarily assuming the dangers of a known risk should be summarily dismissed early on in the case under the assumption of risk doctrine in its primary and strict sense as that has been defined by Pennsylvania cases on the issue.

WHAT DO YOU THINK? Please feel free to comment.

For a more detailed review of some of the recent Pennsylvania cases on this issue, as noted above, please click on the Label in the right column of this blog for "Assumption of Risk" or review my articles on the topic at:

http://www.jdsupra.com/post/documentViewer.aspx?fid=8a0f9813-ab34-44f8-b016-8e58321faf82

AND

http://www.jdsupra.com/post/documentViewer.aspx?fid=fda3f4da-9ebf-4f6c-b37c-ab0b1f69f528


I thank Pete Hall, my editor at the Pennsylvania Law Weekly, for bringing this story to my attention.

Friday, September 18, 2009

Humorous Story About "My Cousin Vinny"-Like Jailing of Attorney

7th Circuit Affirms Conviction Despite Lawyer’s ‘Vinny’-Like Jailing


A federal appeals court has affirmed the attempted murder conviction of a man whose lawyer was jailed during trial for “obstinate behavior” in an opinion that compared the case to the movie My Cousin Vinny.

The Chicago-based 7th U.S. Circuit Court of Appeals noted similarities and differences between the jailing of the Illinois lawyer and the fictional defense lawyer, Vincent LaGuardia Gambini, the Wisconsin Law Journal reports.

Unlike “Vinny,” the Illinois lawyer claimed his overnight jail stay during his client’s trial left him sleep-deprived and without the presence of mind to continue the defense of his client William Riley Sutherland III, later convicted of attempted murder.

Vinny, on the other hand, emerged rested from his night in jail and won the case for his client, Judge William Bauer wrote in the opinion affirming Sutherland’s conviction. Bauer said the real-life lawyer should have moved for a continuance upon returning to court.

“We cannot accept that an attorney functioning on little rest, whether it be three hours of sleep or no sleep at all, would lack the presence of mind even to request a simple continuance,” he said.
A footnote noted the similarities to My Cousin Vinny. “Unlike defense counsel here, Vinny, a New York lawyer struggling to adapt to the rural-Alabama trial setting, found that the accommodations in jail offered the best night’s sleep he could find away from the Big Apple,” Bauer wrote. “Upon his return to the courtroom, a revitalized Vinny dismantled the credibility of the state’s circumstantial case and cleared the names of the ‘two yutes’ he represented. (And again we see that life follows art).”

The above article was posted on September 16, 2009 on the ABA Journal website and was written by Debra Cassens Weiss.

Thursday, September 17, 2009

Expert Testimony on Fibromyalgia Allowed In Lackawanna County

In my preparations for my upcoming 2009 Civil Litigation Update presentation for the Lackawanna County Bench Bar Conference (Oct. 9th at the Scranton Hilton), I was advised of the following recent trial court opinion by Judge Terrence R. Nealon out of the Lackawanna County Court of Common Pleas.

I recently profiled the July 7, 2009 opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), in which he showed that the trial courts of Pennsylvania are continuing to struggle with the issue of whether or not expert testimony should be allowed to support a plaintiff's effort to link his or her alleged fibromyalgia condition to the traumatic event at issue in the case.

In the George case, the Judge could not even issue an opinion on the issue based on what he had before him, but rather, ordered the parties to provide him with more information and articles from the general medical community on the methodology associated with a fibromyalgia diagnosis to assist the court in determining whether such information should be accepted.

In Lackawanna County, back on January 9, 2009, Judge Terrence R. Nealon issued an opinion in the case of Crossman v. Delisi, 2009 WL 221941 (Lacka Co. 2009) in which he denied a Defendant's Motion in Limine seeking to preclude the Plaintiff's medical expert, Dr. Scott K. Epstein, a physiatrist, from testifying that the Plaintiff's fibromyalgia symptoms were related to the motor vehicle accident at issue.

According to the opinion, Dr. Epstein remained firm in this opinion during the cross-examination of his videotaped deposition. Judge Nealon also considered the contrary testimony of the defense medical expert, orthopedic surgeon, Dr. Thomas Allardyce, who questioned any conclusion that fibromyalgia has been definitively linked to trauma.

Judge Nealon applied the test of admissibility set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) as required by the Pennsylvania Supreme Court decision in Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1, 4 (Pa. 2000). Under Frye, novel scientific evidence is admissible if the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community.

Relying upon Dr. Epstein's allegation that a majority of the medical literature recognizes that fibromyalgia may be caused by trauma, as well as relying upon the court's own independent research into articles stating the same as cited in other cases, Judge Nealon held that "[a]ssuming arguendo that Dr. Epstein used a particular methodology in formulating his opinion regarding the cause of the plaintiff's fibromyalgia, the expert testimony submitted for our review and the relevant medical literature discovered during our own research,...reflect that it has gained the requisite level of acceptance in the medical community."

As such, the Defendant's Motion in Limine was denied and the Plaintiff was permitted to present Dr. Epstein's testimony that the Plaintiff's fibromyalgia was related, or caused, by the motor vehicle accident in question.

Several years ago, back in April of 2005, I issued an article exploring this very topic and suggesting, at least back at that time, there was no general agreement in the medical community that fibromyalgia can result from trauma so as to support the admissibility of such testimony. That article, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases," may be viewed by clicking on the title to this post.

Tuesday, September 15, 2009

Conahan and Ciavarella Plead Not Guilty

On the morning of Tuesday, September 15, 2009, former Luzerne County Judges Mark A. Ciavarella Jr. and Michael T. Conahan appeared in federal court for the first time since a grand jury hit them with a 48-count indictment last week.

To review a copy of the indictment, click on the title to this post.

Ciavarella, 59, and Conahan, 57, were arraigned before U.S. Magistrate Judge Thomas M. Blewitt on charges including racketeering, bribery, extortion and money laundering. Both judges pleaded not guilty.

Federal prosecutors requested new bail conditions including electronic monitoring for the judges, claiming there was evidence they tried to protect assets that could be seized in the case and that the new charges in the indictment carried sentences of nearly 600 years as opposed to the 25 years the judges faced on the original charges.

Defense attorneys argued the government was aware of all the judges’ assets and any transfers they might have made to family members, so those assets were available in the event of forfeiture. It was also argued that the judges had obeyed all previous conditions.

In the end, Federal Magistrate Judge Blewitt decided to retain the current bail conditions set in February by U.S. District Judge Edwin M. Kosik. More specifically, the former Judges were allowed to remain free on bail backed by the $700,000 Florida condominium owned by their wives. The former Judges were also restricted to traveling only within Northeastern Pennsylvania.

Both judges declined comment as they left the courtroom.

Information for this post was gathered from an online Citizen's Voice article found at http://www.citizensvoice.com/conahan_ciavarella_plead_not_guilty_to_new_charges.

Friday, September 11, 2009

New Indictment//New Court Date for Former Luzerne County Judges Ciavarella and Conahan

On Wednesday, September 9, 2009, a new indictment was handed down by a grand jury in Harrisburg against former Luzerne County Judges Mark A. Ciavarella and Michael T. Conahan. The indictment essentially contains the same allegations lodged against the former judges in the original indictment filed by the U.S. Attorney’s Office in January of this year. However, the judges now face 48 charges instead of two, and if convicted on all counts, they could spend decades in prison, instead of the 87 months that had been negotiated in the original plea deal that was rejected by Federal Middle District Judge Edwin Kosik.

Former Luzerne County judges Mark Ciavarella and Michael Conahan are scheduled to be arraigned on charges contained in the indictment at 10 a.m. Tuesday, September 15, 2009 before U.S. Magistrate Judge Thomas Blewitt at the Federal Courthouse in Scranton. Judge Blewitt will make a determination as whether the Defendants can remain free pending trial.

Thursday, September 10, 2009

Professional Announcements

The recent Pennsylvania Defense Institute/Northeast Trial Lawyers Association CLE Seminar at the Mohegan Sun Casinos in Wilkes-Barre was deemed a success. Thanks to all who sponsored or attended the seminar.

I am happy to note that as a reward for my efforts in assisting in putting on the seminar I have been named to the Board of the Pennsylvania Defense Institute as one of two Directors covering the Northern Region of Pennsylvania in this organization.


I also had the below announcement published in the most recent edition of The Voice, an online newsletter of the Defense Research Institute, which is a nationwide organization of defense counsel and insurance professionals:

And The Defense Wins

On June 18, 2009 DRI member, Daniel E. Cummins of the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins won a pre-trial dismissal of a case against his client, C&A Industries, in a property damage case. The plaintiff-tenant electronics company alleged that it had sustained thousands of dollars in property damages 14 years ago when its possessions located in a building owned by the defendant-landlord were allegedly damaged as a result of a collapsing of an allegedly negligently maintained roof on the premises.

The case was actually a property damage subrogation claim being pursued by Federal Insurance Company. However, the case remained stagnant over the last 14 years, and the defense finally filed a Motion to Dismiss the case for failure to prosecute it in a timely fashion.

During oral argument, defense counsel emphasized the inappropriate age of the case by noting that the year the underlying event occurred, 1994, was the same year that: Nancy Kerrigan was clubbed by cohorts of Tonya Harding; President Clinton and Boris Yeltsin were in office; George W. Bush was elected governor in Texas; and O.J. Simpson allegedly murdered two people. That's how old this case was.

After the defense argued that the docket sheet on the case and the passage of an inordinate amount of time established that the plaintiff had failed to move the case with reasonable promptitude, with no compelling reason for the delay and to the irreparable prejudice of the defendant in the form of missing witnesses and faded memories, the trial court granted the Motion to Dismiss filed by the defense.

Saturday, September 5, 2009

Recent Medical Malpractice Case of Note

The following recent medical malpractice case of note was identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. A copy of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below. I have also provided the Westlaw citation:

Pringle v. Rapaport, 2009 WL 2710221, PICS Case No. 09-1436 (Pa. Super. Aug. 31, 2009) Donohue, J.; Orie Melvin, J. (47 pages).

HOLDING: An “error of judgment” jury instruction is inappropriate in a medical malpractice case.

Dr. Rapaport delivered the Pringles’ child on July 31, 2002. During the delivery, the baby's shoulder became stuck behind is mother’s pubic bone, a condition called shoulder dystocia. Dr. Rapaport tried different maneuvers to remedy the situation, and the one that worked was a corkscrew procedure that involved manual turning of Austin’s shoulders.

However, the baby allegedly suffered nerve damage to the brachial plexus allegedly caused by tearing of tissue and nerves, and leading to paralysis of his right arm as a result of the doctor's maneuvers. The Pringles brought a medical malpractice action against Rapaport.

At trial, all experts agreed the procedure was acceptable, the decision to use it appropriate in the circumstances, and that the proper amount of force to apply when using the procedure was a learned skill. All of the experts further agreed that it turned out in hindsight the amount of force used here was too much. Yet, the experts disagreed with whether the procedure was performed negligently.

At the close of the case, the trial court gave a jury instruction that “physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment.” The jury returned a defense verdict.

On appeal, the Superior Court acknowledged that there had been earlier decisions suggesting an “error of judgment” defense and/or instruction was appropriate, but the Court also stated that issues were confused and that there were inconsistent rulings from its own panels in the past. It here held such an instruction was inappropriate,

The Superior Court in Pringle first explained the instruction wrongly suggested to the jury that a physician is not culpable for negligent exercise of judgment. The Court further faulted the instruction for injecting a subjective element into the objective test of standard of care.

In dissent, Judge Orie Melvin stated that the Supreme Court had never repudiated the use of such a charge. Nevertheless, the majority concluded that an "error of judgment" instruction is inappropriate in a medical malpractice case. As such, the defense verdict was reversed and the case was remanded for further proceedings.

Recent Automobile Law Cases of Note

The following recent automobile law cases of note were identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. Copies of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below:

Proximate Causation in Chain Reaction Accident

Ensor v. Slaybaugh, PICS Case No. 09-1474 (C.P. Centre Aug. 20, 2009) Kistler, J. (6 pages).

This case involved a multi-vehicle chain reaction accident. The Plaintiff was stopped in his vehicle waiting to make a left at an intersection. Defendant Slaybaugh was stopped right behind the Plaintiff, in close proximity to the rear of the Plaintiff's vehicle. The Co-Defendant, Engleman, then came along and struck Defendant Slaybaugh's vehicle in the rear, propelling it into the Plaintiff's vehicle. The Plaintiff sued both Defendants.

Defendant Slaybaugh, the operator of the middle vehicle moved for summary judgment, arguing that he had done nothing wrong.

The court held that a driver has no duty to stop his car at a traffic light far enough from the car in front of him to avoid the possibility of a telescopic accident, one in which being struck from behind drives one’s car forward into another vehicle in front. As such, the court granted summary judgment to Defendant Slaybaugh in this case.

The court noted that the Plaintiff argued that this case was analogous to the famous decision by Justice Cardozo, studied by all in law school regarding proximate causation--Palsgraf v. Long Island Railroad Co., 162 N.E.99 (N.Y. 1922). However, the court in Ensor rejected this argument by noting that the Plaintiff failed to understand that Justice Cardozo ruled that where there is a causal chain that was too attenuated, there was no proximate cause. Here, too, no such proximate cause was found to exist.

That is, Defendant Slaybaugh's actions of bringing his vehicle to a stop very close to the rear of the Plaintiff's vehicle without striking the Plaintiff's vehicle could not be said to have been a proximate cause of the Plaintiff's injuries when Defendant Slaybaugh's vehicle was propelled into the rear of the Plaintiff's vehicle by the negligence of another driver. Accordingly, the court granted summary judgment.


Subrogation

City of Wilkes-Barre v. Sheils, PICS Case No. 09-1445 (3d Cir. Aug. 25, 2009) Smith, J. (14 pages).

This case involved a police officer who was injured in 1996 when a Luzerne County vehicle struck his cruiser. He was unable to return to work for nine years, during which he drew benefits under the Heart and Lung Act. He also sued Luzerne County for the injuries he suffered, and during the pendency of that action filed a Chapter 7 bankruptcy action.

In 2005, the Middle District of Pennsylvania approved a settlement of the personal injury action, after which the city sought subrogation, or a pay back, of the benefits it had paid to the injured police officer. The Bankruptcy Court rejected the city's subrogation claim, and the Middle District Court agreed on the grounds that the city’s right of subrogation was barred by the Motor Vehicle Financial Responsibility Law (MVFRL).

In this decision, the Third Circuit Court of Appeals vacated the lower court's decision and remanded the case for further proceedings. The Court analogized Heart and Lung Benefits as being similar to Worker's Compensation Benefits. Given that the Motor Vehicle Responsibility Law allowed for subrogation of Worker's Compensation Benefits, the Third Circuit ruled that Pennsylvania law likewise should be construed to allow for an employer to assert his subrogation rights in the Heart and Lung Benefits context.

Accordingly, the Third Circuit has ruled that an employer may seeking to recover, or be paid back, from the plaintiff's verdict or settlement those payments the employer previously paid out under the Heart and Lung Act as a result of the accident.

It therefore follows, under Sections 1720 and 1722 of the Motor Vehicle Financial Responsibility Act, that a plaintiff may plead and present at trial the dollar amount of such benefits he or she received in an effort to convince the jury to award that additional amount to its verdict.

Friday, September 4, 2009

Upcoming CLE Seminars of Note

I note the following upcoming seminars in Northeastern Pennsylvania. I provide the information I was able to uncover. For more information, I would suggest you visit the websites of the entities putting on the seminars:

Thursday, September 24, 2009
Northeast Rehabilitation Associates
Presentations on Neck and Back Injuries by various physiatrists (Bednarz, Wolk, etc.)
(Only $50 fee to register)
Mount Airy Casino, Poconos

Friday, October 9, 2009
28th Annual Lackawanna County Bench Bar Conference
Hilton, Scranton

Thursday, November 5, 2009
Luzerne County Bench Bar Conference
Genetti's Convention Center, Wilkes-Barre

Tuesday, November 17th
Pennsylvania Bar Institute (PBI)
Auto Law Update
Radisson Hotel, Scranton
8:30 a.m. - 12:45 p.m.

Wednesday, December 9, 2009
Pennsylvania Association for Justice (PAAJ)
Auto Law Update
9 a.m. - 1:30 p.m.