Saturday, January 2, 2010


(Published in Pennsylvania Law Weekly Monday, December 28, 2009)

A Wild Ride
A multitude of landmark decisions in civil law make 2009 a year to remember

Special to the Law Weekly

Editor's note: First of two parts.

As the wild legal ride of 2009 winds down, the time has come to take a look back at some of the notable events and decisions handed down over the past year across the commonwealth of Pennsylvania.

In the first part of a two-part article, we take a look at the many changes in the law brought on by cases across the spectrum of civil litigation matters outside of the auto law context. Part two of this article, next week, will cover the important auto law cases of 2009.


A number of new appellate court judges were selected in the November general elections. Superior Court Judge Jane Orie-Melvin, the Republican candidate, defeated fellow Superior Court Judge Jack Panella, a Democrat, for the open Pennsylvania Supreme Court seat.

Winners at the Superior Court level included Judge Judy Olson from Allegheny County, Judge Paula Ott from Chester County, Judge Anne Lazarus from Philadelphia County, and Sallie Mundy, a private attorney from Tioga County. The two open seats on the Commonwealth Court were won by private practice attorneys Kevin Brobson from Harrisburg and Patricia McCullough from Pittsburgh.

In other state judicial election news, Luzerne County voters elected not to retain Judge Peter Paul Olszewski Jr. for a second 10-year term on the trial court bench. Receiving only 44.5 percent of the "yes" vote, he may have fallen victim to the ongoing negative publicity surrounding the judicial scandal involving former Judges Michael T. Conahan and Mark A. Ciavarella Jr. Meanwhile, the other Luzerne County judge up for retention, Thomas F. Burke Jr., received 61.6 percent of the "yes" vote, thereby retaining his position.

In the Federal Court system, Pennsylvania Middle District Judge Thomas I. Vanaskie and New Jersey District Judge Joseph A. Greenaway were tapped by President Obama as nominees to fill open seats on the 3rd U.S. Circuit Court of Appeals. Their nominations are still pending and are expected to be approved.

It is anticipated that Obama may finally move ahead in 2010 with appointments for the many vacancies currently existing on the federal bench, including in Pennsylvania.


In my Oct. 26 article, "You'd Better Watch Your Step," I noted 2009 was a banner year for premises liability defendants in Pennsylvania.

In the U.S. District Court for the Eastern District of Pennsylvania, two separate decisions were handed down by judges granting summary judgment in favor of store owner defendants under a notice defense, i.e., that the plaintiff failed to show that the store owners had actual or constructive notice of the conditions that allegedly caused the plaintiffs to fall. Significantly, in both Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D. Pa. June 16, 2009, Surrick, J.) and Murray v. Dollar Tree Stores, 2009, WL 2902323 (E.D. Pa. Sept. 10, 2009 Kelly, S.J.), the Eastern District judges also rejected the plaintiff's efforts to attach liability by arguing that the stores negligently failed to follow their own established inspection procedures. Both courts noted that such evidence still did not serve to establish how long the slippery substances were on the floor prior to the time the plaintiffs encountered them.

Also this year, Judge Gregory H. Chelak of the Pike County Court of Common Pleas utilized the "trivial defect doctrine" to grant summary judgment in favor of a gas station owner in Melchiorre v. Lords Valley Xtra, 2009 WL 2430339 (C.P. Pike June 19, 2009). In Melchiorre, the plaintiff tripped and fell allegedly because of the raised edge of a concrete pad at a gas station being a mere one inch above the surrounding asphalt. Significantly, Chelak noted that, under the doctrine, the defendant possessor of land bore no liability for such a minimal condition even though the defendant had prior notice of that defect.

The trend continues. Just last month Judge C. Gus Kwidis of the Beaver County Court of Common Pleas granted summary judgment to a defendant bowling in a claim brought by a plaintiff who tripped and fell while entering a bathroom at a bowling alley. In Orlowski v. Magg's Inc., PICS Case No. 09-1822 (C.P. Beaver, Oct. 27, 2009), the court noted that the step into the bathroom was painted bright yellow, which sharply contrasted with the surrounding floor.

Also noted was a "Watch Your Step" sign outside of the bathroom. It was additionally emphasized that the plaintiff admitted that she was not watching where she was walking at the time she fell. The court held that there is no liability for open and obvious dangers and also stated that the plaintiff had a duty to look where she was walking and see that which was obvious.

The continuing validity of the assumption of risk doctrine under Pennsylvania jurisprudence remained uncertain in 2009.

The Commonwealth Court utilized the doctrine in two separate cases, Cochrane v. Kopko, 2009 WL 1531646, PICS Case No. 09-0956 (Pa. Commw. June 3, 2009) and Vinikoor v. Pedal Pennsylvania Inc., 2009 WL 1544267, PICS Case No. 09-0948 (Pa. Commw. June 4, 2009) to grant summary judgment in favor of a defendant.

In Cochrane, the Commonwealth Court barred an inmate from recovery, noting that he assumed the risk of injury when he left himself open to "the mercy of gravity" and fell from his top bunk bed while reaching for his cell door from that position. In Vinikoor, the court found that a plaintiff assumed the risk of hitting a pothole while riding a bike on a course mapped out by the defendant bike tour organizer.

On the other hand, the Pennsylvania Superior Court continued to seriously question whether the assumption of risk doctrine remained a valid defense in the case of Ziedman v. Fisher, 2009 WL 2462563 (Pa. Super. Aug. 13, 2009). In that case, the court described the validity of the defense as being in doubt and chose instead to apply general negligence principles to a case involving a plaintiff injured by an errant shot on a golf course.

This ongoing split of authority on the issue brings to mind former Pennsylvania Supreme Court Justice Stephen A. Zappala's statement more than 15 years ago in the case of Howell v. Clyde, 620 A.2d 1107 (Pa. 1993): "Until such time as this Court arrives at a clear-cut majority, we will continually muddy the waters in the sensitive areas of both comparative negligence and the assumption of risk, both of which are cornerstones of the negligence law in this Commonwealth."

In what some commentators are touting as the first time in 20 years that the Pennsylvania Supreme Court will address the issue of negligent infliction of emotional distress and the physical injury requirement, the court granted allocatur on the following question in an appeal of the Superior Court decision in Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. 2008):

"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, the case involved a mother who gave birth to a son with profound physical deformities after the mother had been previously told that an ultrasound revealed no fetal abnormalities. The plaintiff-mother was awake and coherent during the delivery and was immediately horrified 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 performed and read the pelvic ultrasound examination, the hospital where doctor was on staff, a radiological services provider and the university where the doctor was a faculty member.

A key issue in the case, which the Supreme Court will 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 2009, the Supreme Court also agreed to hear another important negligent infliction of emotional distress issue when it handed down its May 27, 2009, order granting allocatur in Schmidt v. Boardman Company, 2009 WL 1471119 (Pa. 2009).

An issue in the Schmidt case is whether a negligence claim, specifically a claim for negligent infliction of emotional distress, could be brought in a products liability case.

As noted below, the Supreme Court recently chose not to address a broader version of this issue in Bugosh v. I.U. North America.


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

In this asbestos case, the defense wished to introduce concepts of foreseeability into the issue of whether it violated any duty to warn given that it was not allegedly foreseeable, at the time, that the plaintiff could be injured as a result of the defendant's alleged acts or omissions.

In a one-line order, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted."

However, Justice Thomas G. Saylor and Chief Justice Ronald D. Castille dissented from the majority and wrote that "adjustments [to the state's current products liability law] are long overdue."

According to 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."

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." It appears that the dissent will have to await another case to review this issue again.

In another recent products case, Barnish v. KWI Building Co., 2009 WL 3161492 (Pa. Oct. 2, 2009), the Supreme Court did unanimously clarify the burden of proof on a malfunction theory claim in a products liability action. This case revolved around an alleged malfunctioning of a spark detection device that was designed to detect sparks along a conveyor belt system through the use of multiple sensors.

The plaintiffs alleged that the sensors were defective in a strict products liability claim. However, the plaintiffs were unable to present direct evidence of a defect in the sensors because the sensors were lost after the explosion. Therefore, the plaintiffs attempted to proceed under a malfunction theory. Under this theory, the law allowed the plaintiff to proceed on circumstantial evidence.

However, the Supreme Court ruled that the plaintiff had failed to present sufficient circumstantial evidence to get beyond a summary judgment motion. More specifically, the Supreme Court noted that although the plaintiffs presented evidence of a malfunction and expert testimony that the injuries resulted from the malfunction, the plaintiffs' failed to present required evidence, circumstantial or direct, that the product was defective at the time it left the manufacturer's control.

Commentators have viewed this decision as reinforcing the malfunction theory as a valid basis for recovery in a products case and as providing clarity on the burden of proof on such a claim, particularly at the summary judgment stage.

In the Superior Court opinion in Pringle v. Rapaport, 2009 WL 2710221, PICS Case No. 09-1436 (Pa. Super. Aug. 31, 2009), the court held that the previously accepted "error of judgment" jury instruction is inappropriate in a medical malpractice case.

This medical malpractice claim arose out of a situation during which the plaintiff's baby allegedly suffered nerve damage to his brachial plexus, leading to paralysis of his right arm, allegedly as a result of the doctor's maneuvers during the delivery.

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 that the amount of force used here was too much. Yet, the experts disagreed on whether, overall, the delivery was negligently performed.

At the close of the case, the trial court gave an "error of judgment" jury instruction, stating 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 or instruction was appropriate. However, the court also stated that issues were confusing and that there were inconsistent rulings from its own panels in the past. Accordingly, the Pringle court held that such an instruction should now be deemed inappropriate.

The Superior Court in Pringle 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. As such, the defense verdict was reversed and the case was remanded for further proceedings.


The Supreme Court took the rare step of overturning one of its own prior decisions and ruled in Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009), that nurses should not be precluded from offering medical opinions when testifying as experts in a civil trial.

The plaintiff in Freed sued various medical institutions alleging that the nursing staffs at the facilities were negligent in preventing and treating his bedsores. 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.

The Supreme Court in Freed held that its prior decision in Flanagan v. Labe, 690 A.2d 183 (Pa. 1997) must be overruled "to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion regarding medical causation."

However, in footnote 8 of its opinion, the Freed court acknowledged 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, only doctors may serve as experts against other doctors.

Yet, 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.

In an opinion filed Oct. 7 in the case of White v. Behlke, OB-GYN Consultants, LTD., No. 03-CV-2663 (C.P. Lackawanna 2009), Judge Terrence Nealon addressed the novel issue of the amount of the appellate security/supersedeas bond that must be filed by a defendant and/or the defendant's insurer when the jury verdict far exceeds the total amount of the available insurance coverage.

According to Nealon, the question presented appeared to be a matter of first impression in Pennsylvania and there was no reported decisional precedent found on this issue in Pennsylvania prior to this opinion.

The case involved the proper amount of bond on appeal in a case where medical malpractice defendants had been hit with a $20 million verdict that ballooned to $27 million once delay damages were added.

Nealon noted that a party filing an appeal may obtain an automatic supersedeas against an execution on that judgment "upon the filing with the clerk of the lower court an appropriate security in the amount of 120 percent of the amount found due by the lower court and remaining unpaid."

Whereas the plaintiffs were seeking the payment of a security based upon the amount of the verdict, the defendants were seeking a reduction of that amount as allowed under Pa.R.C.P. 1731(h).

Ultimately, Nealon reviewed case law from other jurisdictions and held that the defendant hospital was only required to post bond in the neighborhood of its available policy limits given that the terms of that insurance policy obligated the insurer to furnish a bond in an amount not to exceed its policy limits and its proportionate share of any delay damages awarded.

This year-end review confirms that there have been substantial changes in 2009, both on the bench and in terms of the law emanating from the bench.

It is anticipated that, in 2010, there will be continuing additions to the bench, by way of appointment, in Luzerne County as well as in the Federal District Courts across the state.

As noted above, there also appears to be a number of cases up on appeal before the Supreme Court into next year that could continue to alter the course of Pennsylvania jurisprudence in civil litigation matters as this first decade of the new century comes to a close. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at

This article originally appeared in the November 30, 2009 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(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.

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