Friday, April 29, 2011

Pennsylvania Supreme Court Hands Down Split Decision on Household Exclusion Issue

On April 28, 2011, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Orie Melvin have recused herself from the matter, in the case of  GEICO v. Ayers which decision serves to affirm the Superior Court's decision that an insured was barred from collecting stacked UIM benefits to compensate him for injuries sustained in a motor vehicle accident.

Here's a link to the Tort Talk posting providing more background on the case presented and the exact issue addressed by the Court:  http://www.torttalk.com/2010/07/pennsylvania-supreme-court-agrees-to.html


Here's a link to the Supreme Court's Order issued in GEICO v. Ayers

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-21-2011pco.pdf


Here's the link to the Supreme Court's Opinion by Justice Saylor in support of Affirmance: 

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-21-2011aff.pdf


I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for bringing this decision to my attention.  Attorney Joe Hudock from the same office handled the matter for GEICO.

Thursday, April 28, 2011

Written Materials from Tort Talk Expo Are Now Available as a PDF

To the extent you may be interested in the same, I have the written materials from the recent Tort Talk Expo available as a PDF.  The materials include a civil litigation update, articles on litigating neck and back injuries, and articles on tips for improving chances for success at a Mediation or Arbitration.  Note that the materials are over 80 pages long and may take some time to download and/or print.

Anyone desiring a free copy of the written materials from the recent Tort Talk Expo 2011 may contact me at dancummins@comcast.net to let me know and I will email them to you.

Sunday, April 24, 2011

Tort Talk Expo 2011 Well Attended

The Tort Talk Expo 2011 took place last Wednesday, April 20, 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.  There were 107 people in attendance, made up of plaintiff's attorneys, defense attorneys, and claims professionals.

In the first half hour, I presented the Tort Talk Top 10 (or so) Cases.  I followed that with a half hour presentation called "Take Me Out to the Ballgame:  Little League Tips for Big League Lawyers" in which I took common baseball coaching tips and applied them to the practice of law ("Hustle!", "Keep your eye on the ball!", etc.).

In the second hour, Dr. Lucian Bednarz, a physiatrist provided an Anatomy for Lawyers presentation focusing on neck and back injuries.  Also, Dr. Thomas Allardyce, an orthopedic surgeon, performed an IME on me for all to see how that process works.

The last hour was a View From the Bench.  During the first hour, retired Judge Thomas Raup and retired Judge Thomas Wallitsch, both of ADR Options, Inc., provided tips on how to improve one's chances for success at at mediation or an arbitration.

The second half hour had Judge Robert Mazzoni, and, appearing for the first time together ever on any CLE stage, Judge Terrence R. Nealon and his father, Judge William J. Nealon, providing the audience with tips on how to approach pre-trial settlement conferences.

The event was followed by a cocktail reception at the Breakers Bar in the Mohegan Sun Casino that was well attended as well.

I thank everyone who attended and hope you enjoyed the event.  I also thank the following table vendors who appeared at the Tort Talk Expo:

At the Scene, Inc.: http://www.atthescene.com/


Courtside Documents: http://www.courtsidedoc.com/



Innovative Nursing Consultants, Inc.


Minnesota Lawyers' Mutual: http://www.mlmins.com/


Northeastern Rehabilitation Associates:

Strategic Financial Planners: http://www.strategicfinancialplanners.com/

Surveillance Professionals Investigations:



THANKS TO ALL PRESENTERS, ATTENDEES, VENDORS, AND SPONSORS





Photos from Tort Talk Expo (April 20, 2011)



Judge Terrence Nealon, Judge William Nealon, and Judge Robert Mazzoni

Tuesday, April 19, 2011

Push Back on Confirmation of Medicare/Medicaid Liens Issue

A relatively recent trend in the settlement of civil litigation matters has included requests by the liability insurance company that the Plaintiff produce final lien information with regards to Medicare and/or Medicare before the matter can be finally concluded.  This is so because of the potential penalties that may exist if Medicare and/or Medicaid liens are not addressed out of the settlement funds.

In response, there has been a more recent push back by Plaintiff's counsel objecting to such requests for documented lien information, particularly where there has been previous confirmation that no such liens exist.

In an April 4, 2011 Order, in the case of Vincent v. Buck, No. 2011-CV-456 (Cambria Co., April 4, 2011, Swope, S.J.), Senior Judge Thomas A. Swope, Jr. of the Cambria County Court of Common Pleas granted a Plaintiff's Motion to Enforce a Settlement in a case where the carrier refused to issue a settlement check in a motor vehicle accident case until the Plaintiff produced documentation confirming the status of any Medicare/Medicaid Lien.

In Vincent, the Plaintiff's attorney had provided the liability carrier with copies of letters from Medicare confirming that there were no liens for the two Plaintiffs involved in this matter (these letters were not "final" confirmation lien letters).  The attorney also confirmed that, with respect to one of the Plaintiffs, that person's first party medical benefits coverage had not yet even been exhausted.

The Plaintiffs also emphasized that, in the Release, which was authored by the carrier, there was no requirement that the Plaintiffs provide any final lien documentation before the payment of the settlement funds as demanded.  Furthermore, the Release provided that the Plaintiffs agreed to remain responsible for any and all liens, including any liens asserted by any federal entity or agency.  In the Release, the Plaintiffs also specifically agreed to indemnify and hold the liability carrier and its counsel harmless for any and all liens that may arise.

In addition to arguing the above, the Plaintiffs also pointed to the recent Pennsylvania Superior Court case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa.Super. 2010) in which the appellate court held that neither the liability carrier or the defendant tortfeasor had any legal standing to attempt to act on behalf of Medicare in terms of protecting a lien. 

Accordingly, when the settlement draft was not forthcoming, Plaintiff's filed a Motion to Enforce the Settlement which, as noted, was granted by the trial court in this matter.  In its Order, the trial court also allowed for interest on the delayed payment and attorney's fees and costs associated with the motion.

The prevailing Plaintiffs' attorney in this matter was Joseph J. Nypaver, Esq. of the Altoona, Pennsylvania law firm of Serbin, Kovacs & Nypaver, L.L.P.

Anyone desiring a copy of this Order (without opinion) in Vincent v. Buck may contact me at dancummins@comcast.net.

Friday, April 15, 2011

Judge Van Jura of Luzerne County Addresses Motion For Coordination in a Post-Koken Case

I recently reported on Judge Terrence R. Nealon’s Lackawanna County Court of Common Pleas Opinion in the case of Bingham v. Poswistilo Ritz, and Erie Ins., No. 10-CIV-6020 (Lacka. Co., April 8, 2011, Nealon, J), in which Judge Nealon ruled that third party liability claims and UIM claims may be consolidated under one caption in the post-Koken world but in which Judge Nealon also ruled that such claims should be severed in the case before him under venue issues,

At the end of his Opinion in Binghman, Judge Nealon noted that the Court took no position as to whether a plaintiff may attempt to thereafter coordinate a UIM claim in Lackawanna County with the severed tort claims in Lehigh County under the different standards applicable under Pa. R.C.P. 213.1(a)(c), pertaining to “coordination of actions in different counties.”

On the heels of Judge Nealon's opinion, comes a Luzerne County decision by Judge Joseph Van Jura in the case of Orsulak v. Penn National Mutual Cas. Ins. Co. and Penn National Ins., No. 12255-Civil-2010 (Luz. Co., April 12, 2011, Van Jura, J.), addressing the open issue of coordination that was raised by Judge Nealon in the Bingham decision.

Judge Van Jura tackled this very issue in the Orsulak case and set forth the various factors to be considered on a Motion for Coordination/Petition to Transfer Venue that filed by the Defendant carrier pursuant to Pa. R.C.P. 213.1.

Under Pa. R.C.P. 213.1(a), it is provided that “[i]n actions pending in different counties which involve a common question of law or fact or which arise from the same transactions or occurrence, any party, with notice to all other parties, may file a motion requesting the court in which a complaint was first filed to order coordination of the actions. Any party may file an answer to the motion and the court may hold a hearing.”

Pennsylvania Rule of Civil Procedure 213.1(c) sets forth at least six (6) factors to be used by the Court in determining whether to order coordination and to determine which location is appropriate for the coordinated proceedings. Judge Van Jura noted that the “basis for the rule is the avoidance of multiple trials and proceedings in these separate actions and the resultant economy to both the parties and the judicial system.” Orsulak at p. 4.

In addition to reviewing the factors noted under Rule 213.1, Judge Van Jura also noted guidance from the Explanatory Comment to the rule “which explains that the ultimate determination that the Court must make is whether coordination is ‘a fair and efficient method of adjudicating the controversy.’” Id.

In Orsulak, the Plaintiffs’ claims arose from a motor vehicle accident that occurred in Monroe County. The Plaintiffs filed a Writ of Summons in Monroe County against the tortfeasors only.

The case in Monroe County sat dormant with a Writ only filed while the Plaintiffs attempted to resolve their claims with a worker’s compensation carrier and with Penn National as the UIM carrier.

When the claim with the UIM carrier and the worker’s compensation carrier could not be resolved, the Plaintiffs filed a separate Complaint against Penn National as the UIM carrier alleging causes of action for breach of contract (UIM) and bad faith in Luzerne County.

Thereafter, the UIM carrier filed its Motion for Coordination/Petition to Transfer. After applying the six factors under Rule 213.1(c), along with a guidance from the Explanatory Comment, to the case before him, Judge Van Jura ruled that the Motion for Coordination should be granted and that venue in the Luzerne County case should be transferred to Monroe County.

Judge Van Jura noted that Luzerne County had no, or virtually no, connection with, the issues involved, the facts or site of the accident in question, the potential witnesses, or other sources of proof.

Judge Van Jura also noted that the Plaintiffs reside in Northampton County and that their residence was less than 33 driving miles from the Monroe County Courthouse, but over 61 driving miles to the Luzerne County Courthouse.

The court was also influenced by the fact that both the Luzerne County case and the Monroe County case were in their seminal stages and that coordination would, therefore, not result in any unreasonable delay, expense, or prejudice to any party in the action. Judge Van Jura additionally pointed to the benefits of judicial economy that would result from a coordination of the actions together in Monroe County.


Anyone desiring a copy of this Opinion in the case of Orsulak v. Penn National by Judge Van Jura may contact me at dancummins@comcast.net.

New A.3d Cite for Richner v. McCance Case

The new Atlantic Third citation for the recent case in which the Pennsylvania Superior Court skirted the consolidation verses severance issue in post-Koken cases is, as follows:


Richner v. McCance, 13 A.3d 950 (Pa. Super. 2011) (Insurance company’s Preliminary Objections objecting to the joinder of a Plaintiff’s third party tort claim with a count for declaratory judgment against the insurance company sustained; however, the Superior Court “emphasize[d] that [it was] not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims).

Fair Share Legislation Passes in House -- Now Goes to Senate

On Monday, April 11, 2011, Pennsylvania’s House of Representatives passed HB 1 by a vote of 112-81. The bill would replace Pennsylvania’s joint/several liability with “fair share” liability, i.e. in most cases the defendant would only be required to pay that percentage of liability assessed to that defendant by the jury's verdict.

The bill now moves on to the Pennsylvania Senate but it is currently unclear as to when the Senate will tackle this issue. Governor Corbett has previously and publicly acknowledged his support of the Fair Share legislation.

Thursday, April 14, 2011

TORT TALK EXPO ALL SET FOR NEXT WEDNESDAY

The Tort Talk Expo 2011, set to take place from 1pm - 5pm (Registration 1pm - 1:30pm) on Wednesday, April 20, 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania, is just two weeks away. This CLE program has been approved for 2 substantive and 1 ethics CLE Credit.

The seminar will be followed by a Cocktail Reception at the Breakers bar in the Mohegan Sun Casino from 5pm - 6:30 pm where attendees can continue to network and mingle.

Seats are being filled up quickly by Plaintiff's attorneys, Defense counsel, and Claims Professionals. Currently, there are over 90 attendees signed up and nearly a dozen vendor tables with different legal-related companies hoping to show you the services they can offer.

Here is an alphabetical listing of the table vendors currently scheduled to exhibit at the Tort Talk seminar:


At the Scene, Inc.:  www.atthescene.com



Courtside Documents: www.courtsidedoc.com


Digital Justice: www.digitaljustice.net




Innovative Nursing Consultants, Inc.


Love Court Reporting: www.lovecourtreporting.com


Minnesota Lawyers' Mutual: www.mlmins.com




Northeastern Rehabilitation Associates:


Strategic Financial Planners: www.strategicfinancialplanners.com


Surveillance Professionals Investigations: 



If you are interested in attending this seminar/networking event, please use the Registration Form below:

TORT TALK EXPO 2011

Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011

1 p.m. - 5 p.m.

[Registration 1 p.m. - 1:30 pm]
 
(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)

Followed by a Cocktail Reception at the

Breakers Nightclub

in the Mohegan Sun Casino
The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

The TORT TALK EXPO 2011 will include door prizes for every attendee and chances to win raffle prizes (gift cards, sporting event tickets, etc.). There will also be vendor tables for attendees to visit with a variety of service providers in the legal field.

Also, a portion of the proceeds from this event will be donated to the Janet Weis Children's Hospital in the Geisinger Health System in Danville, Pennsylvania.

The CLE Program will include the following topics and presenters:
THE TORT TALK TOP TEN (or so) CASES

Presenter: Daniel E. Cummins, Esquire
LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS

Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)


ANATOMY FOR LAWYERS: NECK AND BACK

(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates


Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon

 
A VIEW FROM THE BENCH:

Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire

Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration

Presenters: Federal District Judge William J. Nealon, Lackawanna County Judge Robert A. Mazzoni and other members of judicial panel to be identified - Tips for Pre-Trial Conferences
Networking Cocktail Reception Follows at Breakers

5 p.m. - 6:30 p.m.

Costs to cover both CLE Seminar and Cocktail Reception:
Claims professionals/representatives and risk managers
$25.00

Lawyers who are Tort Talk Email Subscribers
$145.00
Lawyers who are not Tort Talk Email Subscribers
$165.00


Make checks payable to "Tort Talk."
For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.
 
Name(s)____________________________________

Firm/Company_______________________________

 

MAIL REGISTRATION FORM AND PAYMENT TO:

TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503
For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.

 
HOPE TO SEE YOU THERE!

Monday, April 11, 2011

Judge Terrence Nealon Thoroughly Weighs In on Joinder and Venue Issues in Post-Koken Matters

On April 8, 2011, in the case of Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.)(32 pages), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued the most thorough Opinion to date on the issues of venue and the consolidation vs. severance of third party claims and UIM claims in post-Koken Matters.

I proudly note that, in his Opinion, Judge Nealon actually cited to Tort Talk, with its compilation of cases in the Post-Koken Scorecard, as being part of his research on the issues presented.

Concisely, Judge Nealon held in Bingham that tort and UIM claims can be joined under Rule 2229(b) since (1) the tortfeasor and UIM insurer may be "separately" liable to the plaintiff, that is, the tortfeasor up to the liability coverage limits and the UIM carrier for any amount in excess of the liability coverage, (2) both claims arise out of the same occurrence, and (3) both claims involve common questions of fact or law affecting the liabilities of the tortfeasor and UIM insurer.

In so ruling, Judge Nealon emphasized that Rule 2229(b) does not require the tortfeasor and UIM carrier to be jointly and severally liable in that it uses the disjunctive "or" in the phrase "right to relief jointly, severally, separately or in the alternative...." [Emphasis added here].

After reviewing the split of authority on the issue of consolidation vs. severance of claims from around the Commonwealth, as well as the split of authority on the issue in his own County of Lackawanna, Judge Nealon came down on the side of allowing for the consolidation of such claims.

As for the evidentiary issue(s) involving insurance that may come into play when a consolidated case of a third party claim and a UIM claim reaches trial, Judge Nealon concluded that that issue was a matter for the presiding trial judge rather than a matter to be decided at the preliminary objections stage in the case before him.

Judge Nealon nevertheless went on to provide a thorough analysis of how the evidentiary issue has been discussed and/or handled by other courts, both in the Commonwealth of Pennsylvania and in other jurisdictions.  The Judge reviewed the different approaches adopted by other states i.e., trying the case as a tort case with the UIM insurer removed from the caption, but bound by the verdict, and insurance not referenced vs. allowing UIM insurance to be mentioned, but not on the issue of whether the tortfeasor "acted negligently or otherwise wrongfully," and considering such evidence as being "offered for another purpose" as permitted by Rule 411.

Ultimately, Judge Nealon decided that it should be the trial judge who could revisit the evidence of insurance issue closer to the time of trial and determine, again, at that time, whether the cases should remain consolidated for trial purposes. 

At this preliminary objections stage of the matter, the Bingham court felt that the better approach was to leave the cases consolidated for at least discovery purposes as a matter of judicial economy and to lessen the burden and expenses on the parties and the court.

While Judge Nealon ruled that the claims could be consolidated under one caption, he ultimately ruled that the cases should be severed under the venue issue presented in this matter.

Under the facts of the Bingham case, the accident occurred in Lehigh County and the tortfeasors were not residents of Lackawanna County and could not be served in Lackawanna County.

The Plaintiff filed the Complaint in Lackawanna County on account of the fact that the Plaintiff's UIM policy with Erie Insurance Exchange had a forum selection clause that required the lawsuit to be pursued in the county of the insured's domicile or residence (which was Lackawanna County). 

Judge Nealon noted that Erie's forum selection clause had been previously upheld as valid by the Pennsylvania Superior Court in the separate case of O'Hara v. First Liberty Ins. Corp., 984 A.2d 938 (Pa.Super. 2009) appeal denied, 995 A.2d 354 (Pa. 2010).

The Plaintiff argued that all of the claims could be pursued in Lackawanna County under the venue Rules of Civil Procedure (Pa.R.C.P. 1006(c)(1)) which essentially states that, where venue was good for one of the defendants, the other defendants could also be brought to suit in that same county.

However, Judge Nealon noted that Pa.R.C.P. 1006(c)(1) only applies in actions "to enforce a joint or joint and several liability," and because the UIM insurer could never be responsible for the full amount of the jury award, it could not be considered to ever be potentially jointly and severally liable with the tortfeasor(s).

Accordingly, the Judge sustained the venue preliminary objection asserted by the tortfeasor defendants, severed the tort and UIM claims, and transferred the tort action to Lehigh County and kept the UIM claim in Lackawanna County as per the forum selection clause.

In his Opinion, Judge Nealon went on to note that the court took no position as to whether the Plaintiff may thereafter attempt to coordinate his UIM claim in Lackawanna County with the tort claims in Lehigh County under the different standard applicable under Pa.R.C.P. 213.1(a) and (c).


Anyone desiring a copy of this thorough Opinion by Judge Nealon in the Bingham case may contact me at dancummins@comcast.net.

Former Luzerne County Judge Michael Toole Sentenced

Here is a link to an April 9, 2011 article by Terrie Morgan-Besecker of the Times Leader regarding the sentencing of former Luzerne County Judge Michael Toole to 30 months (Two and a half years) in federal prison:

http://www.timesleader.com/news/Ex-judge_rsquo_s_new_chambers__A_cell_04-08-2011.html?searchterm=Toole

Sunday, April 10, 2011

Post-Koken Decision Out of Warren/Forest Counties in Favor of Severance of UIM/Bad Faith Claims

On April 6, 2011, Judge Gregory Hammond of the 37th Judicial District in Pennsylvania (Warren and Forest Counties combined) issued an Order in the post-Koken case of Burr v. Erie Ins. Exchange, No. 008-Civil-2011/Forest County Branch (Warren and Forest Co., April 6, 2011, Hammond, J.), in which he ruled that a combined UIM and Bad Faith lawsuit would be severed and that the discovery and trial in the Bad Faith aspect of the case could only occur after the resolution of the UIM case by verdict or settlement.

According to a review of the Post-Koken Scorecard, which you can always view by scrolling down the right hand column of this blog and clicking on the date noted under "Post-Koken Scorecard,"  Judge Hammond's ruling is consistent with the majority rule in this Commonwealth (8 counties in favor of severance of UIM and Bad Faith claims [counting this decision as covering 2 counties] and 4 counties in favor of consolidation).

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

Preliminary Objections Granted in Luzerne County Post-Koken Case

Another post-Koken decision on a pleadings issue has come out of Luzerne County. On February 28, 2011, in the case of Price v. Price, Auto Glass Unlimited, Inc., and State Farm, No. 13625-Civil-2010, Judge Tina Polachek Gartley, issued an Order on various Preliminary Objections filed by both State Farm and the Plaintiff.

In Price, a post-Koken Complaint was filed by the Plaintiff where the Plaintiff joined the tortfeasor and the UIM carrier, State Farm under one caption.

State Farm filed Preliminary Objections solely on the basis that the Plaintiff’s breach of contract cause of action against them was really a claim for bad faith.

In response, Plaintiff filed Preliminary Objections to State Farm’s Preliminary Objections, arguing that State Farm Preliminary Objections were vague in that they failed to state specifically the grounds for the Preliminary Objections in violation of the requirements of Pa. R.C.P. 1028(b).

Judge Gartley sided with the Plaintiff and granted the Plaintiff’s Preliminary Objections to State Farm's Preliminary Objections and also denied State Farm's Preliminary Objections.

I am uncertain as to how State Farm or its defense counsel has followed up since.


I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, Pennsylvania for forwarding this decision to my attention.

I note that this decision was by Order only without much any explanatory rationale. However, should you wish to obtain a copy of this Order, please do not hesitate to contact me at dancummins@comcast.net.

Friday, April 8, 2011

Recent Articles on the Status of the Fair Share Act

Here are links to recent articles, one by John L. Micek of the Allentown Morning Call and one by Mark Scolforo of the Philadelphia Inquirer on the status of the Fair Share Act in the Pennsylvania House of Representatives.

The Fair Share Act, which will essentially mandate that, in most cases, defendants in civil litigation matters will only be responsible for their share of percentage liability as assessed by a jury, is expected to pass in the House and move onto the Pennsylvania Senate.

Under the current law, if a defendant is found even only 1% liable, that defendant is on the hook for 100% of the verdict and can try to recoup his or her overpayment from the co-defendant(s).  As such, if the Fair Share Act passes, it will represent a dramatic shift in how civil litigation matters are handled.

Here are the links to the articles:


http://www.mcall.com/news/nationworld/pennsylvania/mc-pa-legal-reform-20110404,0,1795953.story


http://articles.philly.com/2011-04-07/news/29392816_1_amendment-minority-leader-frank-dermody-fair-share-act

Thursday, April 7, 2011

Judge Terrence Nealon of Lackawanna County Addresses Propriety of Punitive Damages Claims in Med Mal Context

On March 31, 2011, Judge Terrence R. Nealon issued an Opinion in the medical malpractice case of Lasavage v. Smith, et.al., No. 10-CV-2183 (Lacka. Co. March 31, 2011 Nealon, J.), pertaining to Preliminary Objections filed by Defendant against allegations of “reckless,” “outrageous, wanton and grossly indifferent conduct” and “reckless indifference to the rights of Plaintiff’s decedent” as contained in the Complaint. Essentially, the Defendants filed Preliminary Objections against the claim for punitive damages in the Plaintiff’s Complaint.

In his ruling, Judge Nealon overruled the Preliminary Objections filed in this regard by one of the individual Defendants but sustained the objections filed by the Defendant, Scranton Heart Institute, P.C. to the allegations of reckless indifference and any vicarious liability claim for punitive damages asserted against that Defendant.
In so ruling, Judge Nealon noted that the recovery of punitive damages in medical malpractice litigation is governed by §505 of the Medical Care Availability and Reduction of Error (MCare Act), 40 Pa. C.S. §1303.505.

Judge Nealon emphasized that the medical malpractice statute provide that a healthcare provider maybe vicariously liable for the reckless conduct of its doctors/agents only if the principal (a) knows of the wrongful conduct and (b) nevertheless allows it to occur and/or continue.

Judge Nealon stated that “[b]y virtue of this heightened standard of proof for vicarious liability “a patient must now aver and establish that the healthcare principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allow that conduct to proceed unabated.” [citations omitted] [emphasis in original].

Anyone desiring a copy of this Opinion by Judge Nealon the Lasavage case may contact me at dancummins@comcast.net.

Judge Minora of Lackawanna County Addresses Parameters of Discovery of Expert Information

In a recent March 10, 2011 Opinion, by Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas in the case of AJT Property vs. Lexington Ins. Co., No. _______ (Lacka. Co. March 10, 2011, Minora, J.), in which the Court permitted the Defendants to take the deposition of the Plaintiff’s expert witnesses, limited to information obtained not in anticipation of litigation.

This matter arises out of an insurance dispute pertaining to flood damage to the Plaintiff’s property. The issue is whether or to the Plaintiff’s property was covered under its flood insurance policy with the Defendant, Lexington Insurance Company.

Following the loss, the Plaintiff retained the services of an insurance expert and a public adjuster to assist the Plaintiff in the recovery on its claim. The public adjuster investigated events surrounding the Plaintiff’s loss. Both the public adjuster and the insurance expert evaluated the Plaintiff’s claims and reported to third parties on these issues.

At some point, the Plaintiff retained both the insurance expert and the public adjuster as experts in anticipation of litigation. However, the date of the retention of these individuals as experts was in dispute.

The Defendant, Lexington Insurance Company, served the Plaintiff with notices of intent to serve subpoenas upon the insurance expert and the public adjuster. The Plaintiff objected. A special trial master on discovery issues in the Lackawanna County Court of Common Pleas overruled the Plaintiff’s objections and allowed the insurance company to schedule the depositions of the experts. The Plaintiff then filed the Motion at issue to prevent the depositions.

The Plaintiff contended that the depositions would violate Pa. R.C.P. 4003.5(a)(1) and (2). The Defendant insurance company asserted that the experts had knowledge of facts surrounding the Plaintiff’s claims and that they were subject to discovery in that regard.

Judge Minora noted that experts who know facts or hold opinions not required or developed in anticipation of litigation are subject to discovery under the general rules of discovery. The Court found that these experts were originally hired to determine the value of Plaintiff’s losses and to assist in a possible amicable resolution of the matter, and were not initially retained in anticipation of litigation.

Although the experts were, at some point, retained as expert witnesses for trial, there was no clear evidence as to when this decision was made.

In accordance with relevant case law and the Rules of Civil Procedure, Judge Minora determined that the information obtained by the insurance expert and the public adjuster not in anticipation of litigation was discoverable by the Defendant insurance company. The Court allowed the carrier to depose the experts as to dates the experts perceived that they were retained as experts. Once that date was established, the Defendants were permitted to continue the depositions of both experts pertaining to the information they obtained prior to their retention as experts that was not in anticipation of litigation.

Judge Minora further clarified that information prepared by the insurance expert and public adjuster in their role as expert witnesses, including their expert opinions for use at trial, was not subject to discovery by deposition except as may be permitted under Pa. R.C.P. 4003.5(a).

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.


Source:  Case Digests of the Pennsylvania Law Weekly

Med Mal Jury Verdict Out of Lackawanna County

Here's a link to an April 7, 2011 article in the Scranton Times Tribune regarding a sizeable jury verdict entered by a Lackawanna County jury in a medical malpractice case: 

http://thetimes-tribune.com/news/scranton-law-firm-wins-550-000-medical-malpractice-case-1.1129283#axzz1Is9XDAe4

Tuesday, April 5, 2011

En Banc Superior Court Panel Hears Re-Argument in Barrick

On April 5, 2011, I attended the re-argument of the Barrick v. Holy Spirit Hospital case before an En Banc Superior Court Panel. 

The argument was held at a special session of the Court at the MMI Preparatory School in Freeland, Luzerne County, Pennsylvania and it was noted that this was the first time an En Banc Superior Court  had ever heard arguments in a high school setting.

You may recall that Barrick v. Holy Spirit Hospital involved the issue of whether repeated written communications by one attorney to that attorney's retained medical expert were discoverable, particularly where such communications were admittedly and purposefully designed to address the strategy of how the expert should frame his opinion and where such communications were found by the the trial court judge to have potentially "materially impacted" the expert's formulation of his opinion.

I wrote the amicus curiae appellate brief on behalf of the Pennsylvania Defense Institute in support of the appellee's position that such communications should indeed be discoverable under the Pennsylvania Rules of Civil Procedure.  The amicus brief can be viewed at this link: 

http://www.jdsupra.com/post/documentViewer.aspx?fid=13d479ae-68e2-41c2-8279-492075821e68

Judge Hess of the Cumberland County Court of Common Pleas originally ruled in Barrick at the trial court level that such communications were discoverable.  On appeal, the original Superior Court panel, which consisted of Judges Musmanno, Lazarus, and Olsen, affirmed.

When the Plaintiff's Petition for Re-Argument En Banc was granted, the Superior Court's original decision was withdrawn.

The En Banc Panel of Superior Court Judges that heard the re-argument did not consist of any of the Judges who heard the case the first time around. 

The panel instead consisted of President Judge Correale F. Stevens, Judge John T. Bender, Judge Mary Jane Bowes, Judge Jack A. Panella, Judge Christine L. Donohue, Judge Jacqueline O. Shogan, Judge Sallie Updyke Mundy, Judge Paula Francisco Ott, and Judge Robert A. Freedberg.

After a spirited debate between the panel and the attorneys over the interplay between Pa.R.C.P. 4003.3 and 4003.5, i.e. the balance between the protections of the attorney work product doctrine and the discoverability of the bases for an expert's opinion, the Court took the matter under advisement.

I will keep you advised as to any decision issued by the Court.

Large Jury Verdict In Wayne County MVA Case

Here's a link to a blurb in the Sunday, April 3, 2011 Scranton Times Tribune reporting on a $1.9 million dollar jury verdict secured by Attorney Dan Munley for his clients in a Wayne County automobile accident case:  http://thetimes-tribune.com/jury-returns-1-9-million-verdict-for-wayne-county-family-injured-in-crash-1.1127359#axzz1ISeFvE5u

Monday, April 4, 2011

TORT TALK EXPO 2011 Is Two Weeks Away (April 20, 2011)

The Tort Talk Expo 2011, set to take place from 1pm - 5pm (Registration 1pm - 1:30pm) on Wednesday, April 20, 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania, is just two weeks away.  This CLE program has been approved for 2 substantive and 1 ethics CLE Credit.

The seminar will be followed by a Cocktail Reception at the Breakers bar in the Mohegan Sun Casino from 5pm - 6:30 pm where attendees can continue to network and mingle.

Seats are being filled up quickly by Plaintiff's attorneys, Defense counsel, and Claims Professionals.  Currently, there are 84 attendees signed up and nearly a dozen vendor tables with different legal-related companies hoping to show you the services they can offer.

Here is an alphabetical listing of the table vendors currently scheduled to exhibit at the Tort Talk seminar:




Courtside Documents: www.courtsidedoc.com


Digital Justice: www.digitaljustice.net




Innovative Nursing Consultants, Inc.
 

Love Court Reporting: www.lovecourtreporting.com


Minnesota Lawyers' Mutual:  www.mlmins.com




Northeastern Rehabilitation Associates: www.nerehab.com


Strategic Financial Planners:  www.strategicfinancialplanners.com



If you are interested in attending this seminar/networking event, please use the Registration Form below:




TORT TALK EXPO 2011



Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]



(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)





Followed by a Cocktail Reception at the

Breakers Nightclub

in the Mohegan Sun Casino


The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

The TORT TALK EXPO 2011 will include door prizes for every attendee and chances to win raffle prizes (gift cards, sporting event tickets, etc.). There will also be vendor tables for attendees to visit with a variety of service providers in the legal field.

Also, a portion of the proceeds from this event will be donated to the Janet Weis Children's Hospital in the Geisinger Health System in Danville, Pennsylvania.



The CLE Program will include the following topics and presenters:


THE TORT TALK TOP TEN (or so) CASES
Presenter: Daniel E. Cummins, Esquire


LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS
Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)


ANATOMY FOR LAWYERS: NECK AND BACK
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates

Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon


A VIEW FROM THE BENCH:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire
Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration

Presenters: Federal District Judge William J. Nealon, Lackawanna County Judge Robert A. Mazzoni and other members of judicial panel to be identified - Tips for Pre-Trial Conferences


Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.


Costs to cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives and risk managers
$25.00

Lawyers who are Tort Talk Email Subscribers
$145.00

Lawyers who are not Tort Talk Email Subscribers
$165.00


Make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.


Name(s)____________________________________

Firm/Company_______________________________


MAIL REGISTRATION FORM AND PAYMENT TO:

TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.



HOPE TO SEE YOU THERE!

Friday, April 1, 2011

Federal Middle District Judge Caputo Construes Definition of "Occupying" in a Motor Vehicle Insurance Coverage Case

In a March 28, 2011 Memorandum Opinion in the casee of Sona v. State Farm, No. 3:10-CV-1416 (M.D.Pa. March 28, 2011, Caputo, J.), Judge A. Richard Caputo addressed the issue of whether or not the injured party was "occupying" a dirt bike at the time of an accident, since if he was, the injured party would be precluded from both first party medical benefits and UIM coverage under the terms of the State Farm policy.

The case of Sona involved an injured party who had taken his van to a garage for repairs.  Upon arriving at the garage, he removed a dirt bike from the rear of the van so that the oil could be changed on the bike as well. 

After the bike was removed, a mechanic drove the van into the garage.  The injured party was then manually pushing the dirt bike into the garage.  The injured party did not have the key for the dirt bike and never sat on it.  While the injured party was moving the bike manually across the parking lot, another vehicle backed out of its parking spot and struck the injured party's hand, causing personal injuries.

The parties went into litigation and eventually filed cross-motions on the issue of coverage for first party benefits and UIM benefits.  As noted, the issue centered around whether or not the injured party was occupying the motorcycle at the time of the accident.  If he was, exclusions under the policy would have precluded coverage.

Judge Caputo confirmed the law that a dirt bike is considered to be a "motor vehicle" under Pennsylvania law and turned to the case of Utica Mut. Ins. Co. v. Contrisciane, 473 A.2d 1005 (Pa. 1984) for the relevant factors to utilize in determining whether a person was "occupying" a motor vehicle at the time of an accident.

After applying those factors to the case at hand, Judge Caputo ruled that the injured party was not" occupying" the dirt bike at the time of the accident.  The court noted that, rather than being used as a "motor vehicle" at the time of the accident, the dirt bike was being used in a manner more akin to a situation like a person moving a piece of furniture. 

The court therefore found that the exclusions to coverage under the policy were inapplicable.  As such, Judge Caputo entered a ruling in favor of coverage.

I have been informed that the parties involved agreed that no appeal would be filed from Judge Caputo's decision.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

I send thanks to the prevailing Plaintiff's attorney Howard Rothenberg of the Scranton law office of Herlands, Rothenberg & Levine for bringing this case to my attention

Judge Kosik of Federal Middle District Court Addresses IME Issue

Judge Edwin Kosik of the Federal District Court for the Middle District of Pennsylvania recently issued an interesting discovery order in the post-Koken case of Kurland v. Santiago, Civil No. 3:10-Civ-1278 (March 28, 2011).

In that case, there was apparently a dispute on whether or not the Plaintiff could have a registered nurse accompany the Plaintiff to an medical examination arranged by the defense and whether that nurse could audio tape and/or video tape the proceedings.

In his Order, Judge Kosik allowed the Plaintiff to bring a registered nurse to “witness the examination in a professional and unobtrusive manner without any oral or video recordings.”

The prevailing attorneys in this matter were Attorneys Bryon R. Kaster and C. J. Haddick of the Camp Hill, Pennsylvania law firm of Dickie, McCamey & Chilcote.

This ruling emphasizes the difference between Federal Rule of Civil Procedure 35, which pertains to "Physical and Mental Examinations," and Pennsylvania Rule of Civil Procedure 4010, pertaining to "Physical and Mental Examination of Persons."

Fed.R.C.P. 35 is silent on the ability of a party to have a representative or nurse present at an IME.  The Rule is also silent on whether or not the proceedings can be audio taped or video taped.

In contrast, the state rule PA.R.C.P. 4010 specifically expressly allows a party to bring a representative or attorney with them to the IME.  That Rule also allows for the stenographic or audio taping of the IME.   The state rule is silent as to the issue of video taping.

Anyone desiring a copy of Judge Kosik's Order may contact me at dancummins@comcast.net.