Wednesday, June 8, 2011

Recent Cases of Note on Various Civil Litigation Issues

In the case of Silver v. Thompson, PICS No. 11-0950 (Pa.Super. May 27, 2011 Lazarus, Bender, Strassburger, JJ.)(Opinion by Lazarus, J.), the Pennsylvania Superior Court reversed a Philadelphia County trial court ruling that venue in Philadelphia was improper when a defendant had been served personally in Philadelphia.

The trial court judge had granted the Defendant's preliminary objections to venue within Philadelphia in a car accident case because the underlying car accident occurred in Bucks County, all the litigants reside in Bucks County and the witnesses are located in Bucks County.  The trial court judge transferred venue to Bucks County.

According to the Opinion, the Defendant had been personally served with the Complaint at her workplace in Philadelphia.

The Superior Court, however, pointed to Pennsylvania Rule of Civil Procedure 1006, which provides that venue is proper in the county in which the individual may be served.  The appellate court also noted that Pennsylvania Rule of Civil Procedure 402(a) allows for an individual to be served by handing a copy to the defendant or by handing a copy at any usual place of business of the defendant.

While the trial court judge had ruled that the Defendant had to be served at her place of business for venue to be proper in Philadelphia, the Superior Court instead found that Rule 402(a) "clearly states that service may be effected by 'handing a copy to the defendant.'"

According to an article on the case by Amaris Elliott-Engel in the June 9, 2011 Legal Intelligencer, the case of Silver v. Thompson was originally issued as an unpublished memorandum April 27, and was then issued as a published opinion May 27.

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In the recent case of Bloomer v. Ford Motor Company, PICS Case No. 11-0854 (Pa. Super. May 6, 2011) Allen, J.; Shogan, J., concurring and dissenting), the Pennsylvania Superior Court addressed the novel issue of the admissibility of remedial measures taken before an accident occurred in products liability cases.

The Bloomer case involved a Plaintiff who was employed as a tow truck driver who was killed while in the process of towing another vehicle when his truck ran over him. The injured party alleged that Ford’s defective design of the parking brake caused it to disengage. A jury eventually entered a verdict in favor of the Plaintiff’s estate in excess of $10 million dollars after the original amount was molded to add delay damages.
On appeal, the Ford Motor Company argued, in part, that the trial court erred in admitting evidence of design changes in the Ford truck’s brake system, claiming that the designed changes were in admissible as subsequent remedial measures.

The Plaintiff Superior Court disagreed and noted that the design changes at issue were contemplated by Ford prior to the Plaintiff’s accident. Although the design changes may have been considered “remedial measures,” the court found that the plain language of Pa. R.E. 407 only restricts the introduction of remedial measures that were made after the subject injury or harm. As such, Pennsylvania Superior Court concluded that changes in design that were devised prior to the subject accident were not barred as a subsequent remedial measure.

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Another case that has been touted as one of the most requested Opinions recently in the Pennsylvania Law Weekly Instant Case Service is the Decision of Touchete v. Weis Markets, Inc., PICS Case No. 11-0713 (Monroe Co., March 3, 2011, Worthington, J.) in which the Monroe County Court of Common Pleas ruled that a Defendant’s Motion for Summary Judgment should be granted under the argument that a Plaintiff assumed the risk of her injury when she knowing and voluntarily walked over snow and ice.  This cases supports the argument that the assumption of risk defense remains alive and well in Pennsylvania.

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In the recent Federal Middle District Court case of M.S. v. Secret Bridge Mil. Acad., No. 1:08-CV-2271 , PICS Case No. 11-0912 (M.D.Pa. May 13, 2011 Carlson, M.J.), Magistrate Judge Carlson ruled that, under the Federal Rules of Civil Procedure 35, the Plaintiff's attorney is not permitted to be present at a psychiatric examination of a minor party in a negligence action filed by parents on behalf of the minor plaintiff.

The Court in M.S. additionally ruled that the parents of the minor could not be compelled to participate in interviews as part of that psychiatric examination of the child.


Here's a link to other posts on Tort Talk regarding psychiatric IME issues: 

http://www.torttalk.com/search/label/Independent%20Psychiatric%20Examinations




Anyone desiring a copy of any of the above cases may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the PICS Case Number noted and pay a small fee.

Source:  Pennsylvania Law Weekly Digests (May 31, 2011)// Legal Intelligencer (June 9, 2011)

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