Tuesday, December 27, 2011

The 2011 Tort Talk Top 10


As another year comes to an end, here's a look back at some of the top cases and trends of the year in the 2011 TORT TALK TOP 10.  Each selection is linked to the post(s) from over the past year where you can read more info on the selected Top 10 topic:

10.  Changes to the Federal Removal Statute

This one is recent. President Obama recently signed into law the Federal Courts Jurisdiction and Venue Clarification Act of 2011.  As part of the Act, certain changes and clarifications were made with regards to the procedures for the removal of state court actions to federal court.  Just when you think you have the old procedures figured out, they go and change things on you.  Here is a link to the Tort Talk post that refers you to an excellent post by the Drug and Device Law Blog providing a nice summary of the changes along with a link to the legislation.

9.  Recovery of Medicaid Liens Upheld

In 2011, the long-standing procedures regarding the recovery of Pennsylvania Department of Public Welfare Medicaid liens were upheld as valid by the United States Court of Appeals for the Third Circuit on June 29, 2011 in its fifty-nine (59) paged decision in the case of Tristani v. Richman, 652 F.3d 360 (3rd Cir. 2011 Hardiman, J.).  To view more information on this topic, click here and here.

8.  Settlements and Medicare Liens

In both the Cambria County case of Vincent v. Buck, No. 2011-CV-456 (Cambria Co., April 4, 2011, Swope, S.J.), and the Monroe County case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (Monroe Co. May 18, 2011, Zulick, J.), the trial court judges relied upon the Zaleppa case to support a granting of a plaintiff’s motion to compel a defendant to pay a settlement over the Defendants’ objection that Medicare lien issues were not yet resolved. In both decisions, the trial courts emphasized that there was nothing in the releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure that the Medicare lien was addressed prior to the issuance of the settlement check.  Both cases rely upon last year's Superior Court decision in the case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010).  Seems like both plaintiff and defense counsel are happy with these decisions.  For more, read thisthis, and this.

7.  Covell v. Bell Sports Inc.

On July 12, 2011, the U.S. Third Circuit Court of Appeals issued an important decision in the products liability case of Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011 Aldisert, J.).  In Covell, the Third Circuit affirmed the Eastern District Court's application of the Third Restatement of Torts and negligence concepts to claims of injuries allegedly caused by a defective product.  Better get to the library and brush up on the Third Restatement.  To read more on Covell, go to this link.

6.  Williams v. GEICO

In its decision in Williams v. GEICO, 2011 WL 4953433 (Pa. Oct. 19, 2011 Orie Melvin, J.), the Pennsylvania Supreme Court affirmed the lower courts' decisions that  the “regular use” exclusion contained in a personal automobile insurance policy was valid to preclude payment of underinsured motorist (“UIM”) benefits to a police officer injured in the course of employment while operating a police vehicle.  This decision basically leaves first responders without UIM coverage in certain, common situations.  Might see some legislation on this with respect to first responders in the future.  To read more on this decision, click here.

5.  GEICO v. Ayers

On April 28, 2011, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Orie Melvin having recused herself from the matter, in the household exclusion case of GEICO v. Ayers, 18 A.3d 1093 (Pa. 2011) which decision served to affirm the Superior Court's ruling that an insured was barred by the exclusion from collecting stacked UIM benefits to compensate him for injuries sustained in a motor vehicle accident under a case involving a plaintiff who had insured multiple vehicles through one insurance company but on separate policies.  For more on this decision, click here.

4.  Sehl v. Neff

On July 25, 2011, the Pennsylvania Superior Court handed down its opinion in the Post-Koken case of Sehl v. Neff, 26 A.3d 1130 (Pa. Super. 2011), in which the court found proper venue in cases where the UIM carrier’s policy did not have a forum selection clause would be in the county where the defendant tortfeasor could be served, where the defendant tortfeasor resided, or where the accident occurred as venue against the UIM carrier was also proper in those counties as well.  In other words, the court rejected the plaintiff's contention that, since the UIM carrier defendant conducted business in all of the counties of the Commonwealth, venue of this action was likewise proper in any county of the Commonwealth.  This opinion therefore effectively prevents rampant and widespread forum shopping with respect to Post-Koken cases.  Click here to read more on this case.

3.  Social Media Discovery

A slew of trial court opinions continue to come down on the issue of Social Media Discovery, particularly on the topic of whether personal injury defendants are entitled to view the private pages of a plaintiff's Facebook pages.  A split of authority has developed and, hopefully, an appellate court will be given an opportunity in 2012 to address the issue of whether such disclosures should be allowed under the liberal Rules of Civil Procedure pertaining to discovery.  To review Social Media Discovery posts from over the past year, scroll through the listing of related blog posts at this link here.

2.  Barrick v. Holy Spirit Hospital

On November 23, 2011, an en banc panel of the Pennsylvania Superior Court issued an Opinion that served to provide blanket protection to litigating attorneys against having to disclose the content of the letters and emails they send to their trial experts on how the expert should write his report.  And that's a good thing?!  A Petition for Allowance of an Appeal to the Pennsylvania Supreme Court has been filed.  To read more on this case, click here, here, here, here, and here

1.  The Fair Share Act

The biggest event in the civil litigation arena over the past year occurred when the Pennsylvania Legislature passed the Fair Share Act on June28, 2011 (remember that date--the Act only applies to causes of action accruing on that date and forward).  Now all really is fair in love and war.  Click here to read more.

I am sure I left out some cases or trends that should have been included and perhaps included some that you may not think worthy.  In any event, I hope you enjoy this list and you are left with a sense of some of the more important topics of civil litigation from 2011.

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