Tuesday, January 31, 2012

Form Facebook Discovery Motion and Brief

Tort Talkers are well aware that there is an increasing trend in Social Media Discovery litigation in the Pennsylvania courts (and nationwide).

I recently had an opportunity to draft a Motion and a supporting Brief on a Motion to Compel a Plaintiff to produce his Facebook login information.  The discovery issue resolved without me having to actually present the motion in court. 

That, however, has left me with a form Motion, Brief, and proposed Order for future reference.  Anyone desiring a copy of these forms (names in the documents have been change to protect parties' privacy) in the event that they may help you to draft such a motion/brief in your case may contact me at dancummins@comcast.net.

Sunday, January 29, 2012

Plaintiff's Act of Permitting Unauthorized Person to Drive Results in Plaintiff's Vicarious Liability for Own Injuries

In its recent opinion in the case of Price v. Leibfried, No. 332 MDA 2011 (Pa. Super. Dec. 21, 2011 Gantman, Lazarus, and Olson, JJ.) (Opinion by Lazarus, J.), the Pennsylvania Superior Court addressed 75 Pa. C.S.A. §1574 which pertains to permitting unauthorized person to drive in the context of an auto accident litigation.

In this case, the evidence before the court confirmed that this matter involved a two car motor vehicle accident. The Plaintiff was a passenger in her own motor vehicle, which rear-ended a tractor trailer. The Plaintiff’s vehicle was being operated by her friend at the time of the accident  The Plaintiff named the friend as one of the defendants in the lawsuit.

Prior to the accident, the Plaintiff and her friend had been drinking alcohol throughout the evening.

In her Complaint, the Plaintiff alleged negligence against her friend and also sued a local tavern under the Dram Shop Act.

At the close of discovery, the Defendant driver filed a Motion for Summary Judgment asserting that the Plaintiff was vicariously liable for her own injuries and cited to 75 Pa. C.S.A. §1574 (Permitting Unauthorized Person to Drive).

In its opinion, the Pennsylvania Superior Court affirmed the trial court finding that there was no genuine issue of material fact that the Plaintiff knew, prior to the accident, that the Defendant driver did not have a valid driver’s license on the night of the accident.  There was no issue of fact that the Plaintiff also knew that the Defendant driver had been drinking beer and hard liquor on the night in question.

Based on these facts, the Superior Court agreed with the trial court decision that, as a matter of law, the Plaintiff was therefore vicariously liable for the Defendant driver’s negligence in the operation of the Plaintiff's vehicle pursuant to 75 Pa. C.S.A. §1574, as interpreted under the case of Terwilliger v. Kitchen, 781 A.2d 1201, 1206 (Pa. Super. 2001).

The Superior Court agreed that no reasonable minds could differ on a conclusion that the facts established that the Plaintiff had knowledge that the Defendant driver was not a licensed driver and that, despite this knowledge, the Plaintiff still authorized or permitted the Defendant driver to drive her vehicle. Since the Plaintiff therefore violated §1574 of the Motor Vehicle Code by allowing an unauthorized person to operate her vehicle, the court agreed that the Plaintiff was vicariously liable for the Defendant driver’s negligence.

The court went on to state that, since the Plaintiff was vicariously liable for the Defendant driver’s actions, she could not recover damages from that Defendant.

In so ruling, the court allowed the remaining claim by the Plaintiff against the Defendant tavern to proceed to trial where an apportionment of the percentage of liability between the Defendant driver and the tavern would be left for the jury to decide.  Based upon this ruling, however, the Plaintiff would not be permitted to recover against the Defendant driver on any verdict entered against that particular defendant.

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

Friday, January 27, 2012

Third Circuit Swerves the Other Way in Debris-in-the-Road Case

On January 26, 2012, the Third Circuit Court of Appeals issued an interesting uninsured (UM) motorists benefits decision in the debris-in-the-road case of Allstate v. Squires, No. 11-1664 (3d Cir. Jan. 26, 2011 Sloviter, Vanaskie, and Greenberg, J.J.)(Opinion by Greenberg, J.).

I previously put up a Tort Talk post on the District Court's decision in this matter last year denying coverage under the facts presented.  That post can be viewed here.  Now the Third Circuit has reversed in favor of a finding of potential coverage under the facts presented.

In Squires, the injured party insured was driving his pickup truck when he allegedly swerved to avoid a cardboard box lying in the middle of his lane.

Significantly, Allstate stipulated in this matter that an unidentified vehicle dropped the box.  Allstate rejected the injured party's claim for uninsured motorist benefits and sought a declaratory judgment. The insured responded with counterclaims for breach of contract and insurance bad faith under 42 Pa. Cons. Stat. § 8371.

At the trial court level, the District Court had entered judgment for Allstate, finding that the injuries did not "arise out of ownership, maintenance or use of an uninsured auto."

Now with this decision, the Third Circuit has reversed, rejecting the main argument by Allstate that the harm was caused by the box in the road and not by any vehicle as required to support a UM claim under the insurance policy language and Pennsylvania law.  The Third Circuit relied, in part, on the notion that physical contact with an uninsured vehicle is not required for an accident to "arise out of" the use of an uninsured vehicle.

The Court ultimately held that, accepting for purposes of appeal the stipulated facts that the debris was placed on the road by an unidentified vehicle, the Court found that the accident arose out of the maintenance and use of a motor vehicle such that there was a sufficient causal connection to support a finding of potential coverage for the claims presented.  The Third Circuit stated its belief that the Pennsylvania Supreme Court would rule in the same fashion if presented with the same case.

It is noted that this decision in Allstate v. Squires by the Third Circuit is contrary to a number of trial court decisions recently issued on the same issue, none of which was noted in this Opinion.  Summaries of those trial court opinions can be found here, here, and here.

Perhaps a significant difference between the Third Circuit's decision in Allstate v. Squires and those other trial court decisions on debris-in-the-road cases is that it does not appear that there was any stipulation in any of the trial court decisions that the debris on the road had indeed come from a vehicle.  Rather, in those cases, the injured party was without any evidence to establish how the debris came to be on the road.

The Third Circuit's decision  Allstate v. Squires also has an interesting tidbit in footnote 11 of the opinion in which footnote the Court confirmed that it was not deciding or taking any position on any aspect of the Plaintiff's bad faith claim against Allstate for its denial of coverage.  Interestingly, the Court went on to state in that footnote:

"We note, however, that our experience in addressing Pennsylvania insurance coverage disputes has demonstrated that insureds tend to bring bad faith claims when insurers reject their claims even though there are legitimate disputes over whether the claims are covered."

Anyone wishing to read the Third Circuit's Opinion in Allstate v. Squires can click on this Link.

Westlaw Cite for Xander v. Kiss Cell Phone Case

I recently reported on the Northampton County case of Xander v. Kiss in which the court dismissed a punitive damages claimed based upon allegations that the defendant-driver was using his cell phone at the time of the accident.  That post can be viewed here.

As an update, I note that I have been informed that the new Westlaw citation for that case is Xander v. Kiss, 2012 WL 168326 (C.P. Northampton Co. 2012 Zito, J.).

A tip of the hat to James Beck of the Philadelphia office of the Dechert LLP Law Firm for securing the citation.  Attorney Beck also writes the excellent Drug and Device Law Blog which can be viewed here.

Thursday, January 26, 2012


There are now over 750 email subscribers to Tort Talk--and that number doesn't even include those who get Tort Talk by way of an RSS Feed.

I write to say Thank You Very Much for reading and for tipping me off on new cases of note from around the Commonwealth.  I really appreciate it.

Please be reminded that there are a number of tools available at the Tort Talk site (http://www.torttalk.com/) for you to go back and review cases and updates you may recall reading about previously in your emails.

On the site, down on the right hand column, is the always accessible Post-Koken Scorecard and the newly created Facebook Discovery Scorecard.

Further down on the right hand column is a section called "Labels."  That's a tool that you can use to find cases or articles on a specific topic. By clicking on the Label that's specific to your research, you will be sent to a page that list each and every Tort Talk post that touches upon that topic. You can then click on each title to read further.

Another way to conduct research on a particular topic is to use the "Search This Blog" tool that is closer to the top of the right hand column of the blog. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that mentions that topic. You can then click on each post to read further.

Down on the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the JDSupra.com website. If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles I have created along with links to some other legal and non-legal-related websites and blogs that may be of interest.

Thanks again for reading Tort Talk. I am grateful for your interest and support. If I should be able to provide you with any assistance on any matters you may have in the Northeastern Pennsylvania region where I practice, or if I can possibly help out in any other way, please do not hesitate to contact me at dancummins@comcast.net.

TORT TALK EXPO 2012 - Lineup of Presenters Finalized and CLE Credits Approved

The lineup has been finalized for the TORT TALK EXPO 2012 CLE Seminar, which is set to take place on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Also, I have received approval from the Pennsylvania CLE Board, approving 2 substantive and 1 ethics credit for the event.

In addition to my presentation of an Auto Law Update, the other presenters will include Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price on a Civil Litigation Update, as well as noted expert radiologist (and attorney) Dr. Michael Brooks presenting on diagnostic studies in personal injury matters, with an emphasis on auto accident matters.

The stellar Judicial panel for the "View from the Bench" portion of the program will consist of Pennsylvania Supreme Court Justice Michael Eakin, President Judge of the Superior Court Correale Stevens, and U.S. Third Circuit Court of Appeals Judge Thomas Vanaskie. 

President Judge Thomas F. Burke, Jr. will also provide a "State of the Luzerne County Bench" presentation, reporting on which new judge will be handling which types of cases along with an update on the current status of the Luzerne County civil trial backlog.

The View from the Bench portion will be presided over by former Luzerne County Judge Joseph Van Jura, who recently completed his appointment and has returned to private practice where he is also offering his services for Mediations and Arbitrations.

In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators.  To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):

Courtside Documents: www.courtsidedoc.com

Digital Justice: www.digitaljustice.net

Minnesota Lawyers' Mutual: www.mlmins.com

Ringler Associates:  www.ringlerassociates.com

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 continue to network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

Also, a portion of the proceeds from this event will be donated to a local charity to be determined.

The CLE Program will include the following topics and presenters:


Presented by

Daniel E. Cummins, Esquire

at the


Thursday, May 3, 2012

12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits

Followed by Cocktail Hour (4:30 – 6:30 p.m.) at Breakers in the Mohegan Sun

12:30 – 1:00 pm Registration

1:00 – 1:30 pm: The Tort Talk Auto Law Update

Presenter: Daniel E. Cummins, Esq.

1:00 – 1:30 pm: The Tort Talk Civil Litigation Update

Presenter: Paul T. Oven, Esq.

2:00 – 2:15 pm BREAK

2:15 - 3:15 pm: Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries

Presenter: Dr. Michael L. Brooks, M.D., J.D., FCLM

3:15 – 3:30 pm BREAK

3:30 – 4:30 pm A View from the Bench: Ethical Issues in Legal Writing and Advocacy Before the Court in an Electronic World

Hon. Joseph Van Jura (Ret.)


Pennsylvania Supreme Court Justice Michael Eakin
President Judge of Superior Court Correale Stevens

U.S. Third Circuit Court of Appeals
Judge Thomas I. Vanaskie 

Luzerne County President Judge Thomas Burke, Jr.



4:30p.m. - 6:30p.m.

Costs below cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives
and risk managers


Please 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.




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.


Wednesday, January 25, 2012

Judge Geroulo of Lackawanna County Addresses First Party Issues in Auto Accident Case

In the Lackawanna County case of Mehall v. Benedetto, No. 09-CIV-5849/No. 10-CIV-7224 (C.P. Lacka. Jan. 10, 2012, Geroulo, J.), Judge Vito Geroulo addressed a variety of issues in an automobile accident case in which it was alleged that the Plaintiff was the owner of a registered but uninsured motor vehicle.

By way of background, at the time of the subject accident, the injured party Plaintiff was operating a vehicle that was owned by his girlfriend. It was alleged that, at that time, the injured party Plaintiff also owned another vehicle that was registered but not insured.

The court in Mehall found that there was no genuine issue of material fact that the Plaintiff did indeed own a registered and uninsured vehicle at the time of the accident.

According to the Opinion, the parties agreed that, given the fact that the Plaintiff was the owner of a registered but uninsured vehicle, he was deemed to have chosen the limited alternative under 75 Pa. C.S.A. §1705(d).

Before the court was a Motion for Summary Judgment seeking a finding that 75 Pa.C.S. §1714 of the Pennsylvania Motor Vehicle Financial Responsibility Law precluded the Plaintiff from recovering past, present, or future medical bills, medical liens, and medical expenses as well as past, present, or future wage loss or earnings impairment, as well as any and all first party benefit type damages. In so arguing, the defense relied upon the case of McClung v. Breneman, 700 A.2d 495 (Pa. Super. 1997).

The Plaintiff countered that, under the case of Swords v. Harleysville Insurance Co., 883 A.2d 562 (Pa. 2005), the Plaintiff was entitled to not only underinsured motorist benefits under an applicable policy, but also to medical, wage loss, and other economic damages that may be afforded under that policy.

Judge Geroulo found that the Swords case controlled his decision.  The ruled that, under Swords, the Plaintiff was indeed precluded from recovering first party medical benefits and wage loss benefits as the owner of an registered but uninsured motor vehicle and also that the Plaintiff would be deemed to be covered by the limited tort option.

However, Judge Geroulo ruled that the Plaintiff was not precluded from recovering UIM damages under the circumstances presented. As such, the court ruled that the Plaintiff was indeed eligible to recover uninsured and/or underinsured motorist benefits pursuant to another person’s automobile insurance policy, if the injured party Plaintiff qualified for such coverage under that policy.

Elsewhere in his opinion, the court also denied the Defendant owner’s Motion for Summary Judgment on the negligent entrustment claim. The court found that the Plaintiff had presented sufficient evidence that the Plaintiff Defendant owner knew that the Defendant driver had prior accidents, traffic citations, criminal offenses, past drug and alcohol use, and a problem with low blood sugar. As such, the court found that genuine issues of material fact precluded the entry of summary judgment on the negligent entrustment issue.

I send thanks to Attorney M. Lee Albright of the Pisanchyn Law Firm in Scranton, PA for advising me of this decision.

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

Summary Judgment for Defendant in Lancaster County Trip and Fall on Steps Case

In the recent trip and fall case of Harbison v. JPS Getty, Inc., PICS No. 12-0074 (C.P. Lancaster, Dec. 22, 2011 Knisely, J.) Judge Howard F. Knisely of the Lancaster County Court of Common Pleas ruled that the alleged danger caused by uneven steps at a convenient store should have been known or obvious to a plaintiff and, with the plaintiff having a duty under the law to look where she was walking and see that which was obvious, the court granted the Defendants’ Motion for Summary Judgment.

According to the Opinion, the Plaintiff admitted that she had visited the subject convenient store on numerous prior occasions.

On the day of the incident, as the Plaintiff walked up to the steps to reach the concrete apron surrounding the store, she noticed a woman with a walker exiting the store. The Plaintiff attempted to hold the door open for that person and, without looking down, stepped backwards and fell to the pavement.

The Plaintiff had apparently assumed that there was two steps down off the concrete pad but it turned out that there was only one. The Plaintiff sued, alleging that the steps to the store constituted a dangerous or hazardous condition.

After discovery, the Defendants filed a Motion for Summary Judgment asserting that the Plaintiff had failed to establish a case of negligence.

In agreeing with the Defendant’s position, the trial court relied upon the Superior Court's decision in Villano v. Sec. Sav. Assoc., 407 A.2d 440 (Pa. Super. 1979), in which the court held that uneven steps could be an obvious condition that a defendant was not required to protect a plaintiff against.

The trial court in this Harbison case felt that the alleged danger caused by the steps at the store should have been known and obvious to the Plaintiff. Accordingly, the Defendants were found not to be responsible for the Plaintiff’s injuries.

The Court emphasized in this Opinion that the Plaintiff admitted that she was not looking down when she stepped backwards. It was reiterated in the Opinion that the Plaintiff had a duty to look where she was walking and to see what was obvious.

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-PICS and pay a small fee.

Source: Pennsylvania Law Weekly “Digest of Recent Opinions” (Jan. 17, 2012).

Sunday, January 22, 2012

Post-Koken Scorecard Updated

Yesterday, I posted my newly created Facebook Discovery Scorecard.  I also had an opportunity to update the Post-Koken Scorecard and you can click on the title of this post to access that Scorecard.  Both Scorecards are always accessible by scrolling down the right hand column of Tort Talk (http://www.torttalk.com/) and clicking on the date below each Scorecard title. 

The decisions in the Post-Koken arena appear to have quieted down a bit.  Now that an increasing number of Post-Koken cases are reaching the trial stage, it can be anticipated that new trial court decisions will be handed down on trial-related issues, including but not limited to, the issue of whether or not consolidated post-Koken cases should be bifurcated into two separate trials, i.e. one trial for the negligence claims against the Defendant driver, and a second trial for the breach of contract claims against the Defendant UIM carrier.




Clarks Summit, PA

firm website: www.CumminsLaw.net

Email: dancummins@CumminsLaw.net

[UPDATED January 1, 2024]

DANIEL E. CUMMINS, ESQUIRE is an insurance defense attorney with the Clarks Summit, Pennsylvania law firm of CUMMINS LAW. In addition to being a civil litigator, he also writes a regular column for the Pennsylvania Law Weekly on important cases and emerging trends under Pennsylvania law.  He is also the former author of the annual Supplement for The Pennsylvania Trial Advocacy Handbook

In 2014, Attorney Cummins was selected as the "Distinguished Defense Counsel of the Year" by the Pennsylvania Defense Institute.

Every year since 2015, Attorney Cummins has earned an annual inclusion in The Best Lawyers in America directory under the category "Personal Injury - Defense."  To date, he is one of only a few Northeastern Pennsylvania attorneys to earn this distinction in this category.  In 2023, Cummins Law was selected by the same Directory for inclusion as one of the Best Law Firms in the Nation.  Cummins Law is the first, and only, insurance defense law firm in northeastern PA to be so selected.

He has also been selected as a Super Lawyer every year since 2015.

One trending issue in Pennsylvania civil litigation has to do with Social Media Discovery.  Here is a LINK to my ONLINE VIDEO on this topic with Ben Present, a reporter with the Pennsylvania Law Weekly.

Here's an updated list of the Facebook or Social Media Discovery cases uncovered to date, broken down by county-to-county decisions.  This Scorecard was created in January of 2012 and has been updated ever since.

I have created a link on the right hand column of Tort Talk (http://www.torttalk.com/) entitled "Facebook Discovery Scorecard" that will be continually updated.  The Scorecard will remain up on the blog for you to click whenever you need this information.  Just click on the date below "Facebook Discovery Scorecard."

The below list cases may not be exhaustive and there may be other decisions out there that I am not aware of at present. As such, it is recommended that you conduct your own additional research on the issue.

In the absence of appellate guidance, it is important that these decisions be publicized so that a consistent common law in this novel area can be developed. I would appreciate it if you could please advise me of any new cases that you may come across on this topic so that those decisions can be highlighted here.

I am in possession of a copy of most of the decisions noted below.  If you desire a copy of any of the following cases, please contact me at dancummins@CumminsLaw.net.  Wherever possible, I have also created a link to certain decisions below that are generally available online.



U.S. Federal Court for Middle District of Pennsylvania

Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D.Pa. June 22, 2011 Carlson, M.J.)(In Opinion by Federal Middle District Magistrate Judge, Court grants requests of Defendant and Plaintiff for in camera review of Plaintiff's private Facebook page;  court picks and chooses what is to be disclosed).

U.S. Federal Court for Western District of Pennsylvania

Ogden v. All-State Career School, 299 F.R.D. 446 (W.D. Pa. 2014 Cercone, J.)(Limited Facebook discovery on Plaintiff allowed).

Franklin County

Largent v. Reed, 2009 – Civil – 1823, 2011 WL 5622688 (C.P. Franklin Co. Nov. 7, 2011 Walsh, J.)(In thorough Opinion, Court outlines why Facebook discovery should be allowed.  Plaintiff's claim of privilege rejected.  Court limits defense access to Facebook page for 21 days after which Plaintiff was permitted to change login info.). But see Franklin County case below where discovery not allowed.

Indiana County

Simms v. Lewis, 2012 WL 6755098, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case;  discovery granted where predicate showing that private pages of one site may generate relevant information, but denied as to other sites because defendant did not make predicate showing with respect to those sites.)

Jefferson County

McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.)(In what appears to be the first Pennsylvania decision on the issue, court holds, in a detailed decision, that Facebook postings were discoverable and ordered the Plaintiff to provide his username and password to the defense.).

Lancaster County

Perrone v. Lancaster Regional Medical Center, No. CI -11-14933, 2013 WL 4011633 (C.P. Lanc. Co. 2013 Cullen, J.),(Judge James P. Cullen crafted a novel method of handling a Facebook Discovery dispute in a civil litigation personal injury case by ordering the parties to hire a neutral forensic computer expert to determine whether photos and video on Plaintiff's Facebook page were posted before or after subject slip and fall incident in order to determine whether or not such information was discoverable.).

Monroe County

Kelter v. Flanagan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018, Williamson, J.), the court granted a Defendant’s Motion to Compel a Plaintiff to provide the Defendant’s counsel with her Instagram account log-in information.   The Order further mandated that the Plaintiff would not remove or delete any content from that account.   Judge Williamson also ordered defense counsel not to share this information with any one not related to the case.  

Mazzarella v. Mount Airy Casino Resort, No. 1798 Civil 2009, 2012 WL 6000678 (C.P. Monroe Co. Nov. 7, 2012 Williamson, J.)(Judge David J. Williamson of the Monroe County Court of Common Pleas granted a defendant's motion to compel the plaintiff to allow for social media discovery in a premises liability slip and fall case.).

Montgomery County

Gallagher v. Urbanovich, No. 2010 - 33418 (C.P. Mont. Co. Feb. 27, 2012 Carpenter, J.)(JudgeWilliam R. Carpenter of the Montgomery County Court of Common Pleas granted a Plaintiff's Motion to Compel a Defendant to produce his user name and password for the Defendant's Facebook page.  The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff.  While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.).

Northumberland County

Zimmerman v. Weis Markets, Inc., No. Civil - 2009 - 1535, 2011 WL 2065410 (C.P. Northumberland Co. May 19, 2011 Saylor, J.)(In an Opinion, court grants defense motion to compel but, in a footnote, cautions that Facebook discovery not automatically allowed--threshold showing must first be made by party seeking discovery that private pages of opposing party's Facebook page may have information relevant to case.).

Washington County

Prescott v. Willis, No. 2012-Civil-2207 (C.P. Wash. Co. Mar. 3, 2013 O’Dell-Seneca, P.J.)(In an Opinion, court granted a Defendant’s Motion to Compel a Plaintiff to produce her Facebook username and password in a motor vehicle accident case. Court found that Defendant made the requisite predicate showing from pictures from the public profile of the website.  Defendant was granted 7 days access after which Plaintiff was allowed to change her username and/or password.)


U.S. Federal Court for the Western District of Pennsylvania

Hanna v. Giant Eagle, Inc.2016 U.S. Dist. LEXIS 107253 (W.D. Pa. 2016 Mitchell, J.)(Court precludes unfettered access to Plaintiff's social medial account).

In re Milo's Kitchen Dog Treats Consolidated Cases, 307 F.R.D. 177, No. 12-1011 (W.D.Pa April 14, 2015 Kelly, M.J.).( Federal Magistrate Judge denied a Defendant's motion to compel unfettered and complete access of the Plaintiff's profile page along with a disclosure of the Plaintiff's user name and password in a case where plaintiff had already disclosed many of the private pages of her Facebook profile.).

Allegheny County

Trail v. Lesko, No. GD-10-017249, 2012 WL 2864004 (C.P. Alleg. Co. July 3, 2012 Wettick, J)(In a detailed opinion, Judge Wettick denied both a Plaintiff's and a Defendant's motions to compel access to the opposing party's Facebook pages, finding the requests were unreasonably intrusive under Pa.R.C.P. 4011 in that, in this particular case, "the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case.").

Bucks County

Piccolo v. Paterson,, 2009 - Civil - 04979 (C.P. Bucks Co. May 5, 2011 Cepparulo, J.)(In a one line Order, court denies defense motion to compel discovery of Plaintiff's Facebook pages in a facial scarring personal injury case. Defense had requested that the court order the Plaintiff to accept a "friend" request from defense counsel.  Defense wanted to secure other photos of Plaintiff via Facebook pages; Plaintiff argued that defense had already secured numerous pre-accident and post-accident photos of Plaintiff and that this motion to compel was essentially overkill on the issue.).

Franklin County

Clapsadle v. Barkman, No. 2015-1896 (C.P. Franklin Co. Sept. 15, 2016) (The court denied a defendant's motion to compel plaintiff to answer interrogatories regarding the content of the plaintiff's private portions of his Facebook profile after finding that the information contained on the public pages did not support an argument that relevant information would be revealed from a review of the private pages.  The court did order a hearing to address issues of spoliation after finding that the plaintiff violated a prior court order that specifically directed the plaintiff not to delete or erase any information on the profile.)  But see above Franklin County decision where Facebook Discovery was allowed.

Arcq v. Fields, No. 2008 – Civil – 2430 (C.P. Franklin Co. Dec. 7, 2011 Herman, J.)(In Opinion, court denies motion to compel access to Plaintiff's private Facebook pages where Defendant did not first offer threshold showing that Plaintiff even had a Facebook page or that the Plaintiff's private Facebook pages may reveal evidence that information relevant to the Plaintiff's claims of injury and disability would be discovered on the private pages).  See also Franklin County case above where discovery is allowed.)

Indiana County

Simms v. Lewis, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case; discovery granted where predicate showing that private pages of one site may generate relevant information, but denied as to other sites because defendant did not make predicate showing with respect to those sites.)

Lackawanna County

Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lackawanna County 2013 Nealon, J.)(In a detailed Opinion, Judge Nealon denies motion to compel disclosure of user name and password as Plaintiff had not established that relevant information would be found on private pages.  Judge Nealon also ruled that a demand to produce the user name and password to a person's social media sites was not a discovery request tailored with reasonable particularity but instead represented an effort at an impermissible fishing expedition.).

Commonwealth v. Pal, No. 13-CR-2269, 2014 WL 1042276 (C.P. Lacka. Co. March 14, 2014)(Judge Nealon utilizes civil litigation Facebook Discovery decisions, at pgs. 27-34 of Opinion, to address issues raised with search warrant relative to Facebook information.)

Luzerne County

Kalinowski v. Kirschenheiter and National Indemn. Co., No. 6779 of 2010 (C.P. Luz. Co. 2011 Van Jura, J.)(In an Order, Court denied motion to compel discovery of private pages of Plaintiff's Facebook page where Plaintiff had argued that (1) defense was only seeking to embarrass Plaintiff, (2) that defense had ample access to information on public pages of sites, and (3) where Plaintiff contended that private pages related in part to Plaintiff's business and that no wage loss claim was being presented.  Court denied motion "without prejudice," apparently leaving the door open for the issue to be revisited later)(For this one, I have copies of the Court's order and some of the filings by the parties).

Lycoming County

Harkey v. Stojakovich, No. CV-19-1295 (C.P. Lycoming Co. Oct. 26, 2020 Linhardt, J.), Judge Eric R. Linhardt of the Lycoming County Court of Common Pleas denied a Defendant’s Motion to Compel Facebook Discovery from a Plaintiff in a tractor trailer accident case.  While defense presented a factual predicate was established to allow for access to the private pages of the Plaintiff's Facebook profiles, the court found that the request that the Plaintiff produce all of his social media postings lacked the requisite particularity required of the Rules of Civil Procedure to avoid any embarassment or undue burden.

Northampton County

Allen v. Sands Bethworks Gaming, LLC., No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.)(In an Opinion, court denies defense motion to compel access to Plaintiff's private pages of social media sites where defense failed to establish factual predicate to support such inquiry.  The court also noted that it would be disinclined to allow carte blanche discovery in this regard in any event as being too intrusive).

Philadelphia County

Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila Dec. 13, 2011 Manfredi, J.)(In a one line Order, court denies motion to compel access to Plaintiff's private Facebook pages where Defendant did not first show that the Plaintiff's deposition testimony and/or public pages of the Plaintiff's Facebook pages revealed evidence that information relevant to the Plaintiff's claims of injury and disability would be discovered on the private pages)(For this one, I have copies of the defense motion, plaintiff's response, and the court's Order).

Schuylkill County

Hoy v. Holmes, No. S-57-12, 107 Sch.L.R. 19 (C.P. Schuylkill Co. 2013 Domalakes, J.)(In an Opinion, Judge John E. Domalakes denied a Defendant's Motion to Compel access to a Plaintiff's social media sites, including Facebook, in a motor vehicle accident case where no factual predicate shown that relevant information may be discovered on private pages.). 

York County

Hunter v. PRRC, Inc., No. 2010-SU-3400-71 (C.P. York   Linebaugh, P.J. )(President Judge Stephen P. Linebaugh ruled that a defendant must meet a threshold showing of relevant information on a Plaintiff's public social media/Facebook pages before access to the private pages of the site would be allowed.  There must be a showing of a reasonable probability that relevant information will be also found on the private pages of the site.  The court also noted that a Plaintiff also retained the right to request a protective order if the allowance of the discovery would cause unreasonable annoyance, embarrassment, etc. under Pa.R.C.P. 4012.  Court denies motion after finding defense did not make required threshold showing.).

United States v. Browne, 834 F.3d 403 (3d Cir. 2016 Fisher, Krause, Roth, J.J.)(Op. by Krause, J.)(Court addressed the proper authentication and admissibility of social media posts.  The case involved an appeal of a  criminal case from the U.S. Virgin Islands.  Although this decision arises out of a criminal case, the rationale regarding the authentication and admissibility of Facebook chats may prove useful in the context of a civil litigation matter.)

To review blog posts on these cases, as well as other related Social Networking litigation issues, click here.

To review a form Motion, Brief, and proposed Order I created on a Motion to Compel a Plaintiff to Produce his Facebook login information (names have been changed in the documents to protect privacy of parties), click here.


Dauphin County

Appleby v. Erie Ins. Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, 2016 Dowling, J.)(Court grants Plaintiff's motion to compel and orders Defendant to produce results of social media discovery on the Plaintiff prior to Plaintiff's deposition.  The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.)

Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, 2016 Bratton, J.)(Court grants Plaintiff's motion to compel and orders Defendant to produce results of social media discovery on the Plaintiff prior to Plaintiff's deposition.  The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.)

Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, 2016 Dowling, J.).(Court granted Plaintiff's motion to compel and ordered the defendants to provide all social media research or investigation including Facebook, Linkedln, Twitter, You Tube, Instagram,Tumblr or any other similar research. The defendants' objection that this investigation is the same as surveillance and should not be produced until after plaintiff's deposition was overruled. The defense objection that it was work product was also overruled.  In its Order the court did also hold that the defense did not need to produce video surveillance completed on the Plaintiff prior to her deposition.)


Federal Middle District Court

Bryant v. Wilkes-Barre Hosp. Co., LLC, 2016 LEXIS 87103 (M.D. Pa. 2016 Mannion, J)(Court allows admission of Facebook posts to challenge Plaintiff's credibility at trial).

Federal Western District Court

Newill v. Cambpell Transp. Co., No. 2: 2012-CV-1344, 2015 U.S. Dist Lexis 4350 (W.D. Pa. 2015 McVerry, J.)(Court reviewed a Plaintiff's motion in limine to preclude the Defendant from introducing several of the Plaintiff's Facebook posts into evidence in a personal injury matter on the basis they were irrelevant, unfairly prejudicial, and potentially embarrassing.   Facebook posts, which showed allegedly injured Plaintiff engaged in a variety of physical activities found relevant and admissible; that the posts may be embarrassing to Plaintiff found not to be grounds to preclude the evidence.)

Thursday, January 19, 2012

Judge Nealon of Lackawanna County Provides Guidance on Request for Expenses for Out-of-State Expert Deposition for Trial

Tort Talkers may recall that, last week, I produced a summary of Lackawanna County Court of Common Pleas Judge Terrence R. Nealon’s Decision in the case of Locker v. Henzes regarding the admissibility of certain expert testimony in medical malpractice cases.

It has come to my attention that Judge Nealon also issued another decision in the case of Locker v. Henzes, No. 05-CIV-3174 (C.P. Lacka. Co. Jan. 9, 2012 Nealon, J.) addressing a Rule 4008 Motion for Payment for Travel Cost and Fees for an Out of State Trial Deposition.

More specifically, the medical malpractice Defendants filed a joint motion for attorney’s fees and expenses and sought a court order compelling the Plaintiff to pay defense counsel’s fees and travel expenses in connection with an upcoming video tape deposition for trial of the Plaintiff’s medical expert in Austin, Texas.

In its Opinion, the Court noted that, upon receipt of the Defendants’ joint motion, Plaintiff’s counsel offered to make arrangements for defense counsel to participate in the Plaintiff’s medical expert’s trial deposition by way of video conferencing at a rate of $125.00 per hour charged by the video conferencing company. However, since Plaintiff’s counsel planned to attend the trial deposition in person, defense counsel declined the video conferencing alternative offered.

The court noted that the Defendants premised their Motion for Counsel Fees and Travel Expenses upon   Pa.R.C.P. 4008 which provides that “[i]f a deposition is to be taken by oral examination more than 100 miles from the courthouse, the court upon motion may make an order requiring the payment of reasonable expenses, including attorney’s fees, as the Court shall deem proper.”

The Plaintiff countered that requiring the Plaintiff to pay such expenses would create an undue financial burden upon the Plaintiff.

Judge Nealon noted that there was “an absence of appellate precedent or any recent trial court analysis addressing whether an award of counsel fees and expenses is appropriate under Pa. R.C.P. 4008.” See Opinion at p. 4.
Reviewing the language of the rule, and referring to the commentary in Goodrich Amram 2d §4008: 3 (2d Ed.) along with trial court opinions, the court noted that the entry of an order compelling such a payment is “purely discretionary.”

Judge Nealon noted that the relevant factors to be considered under Rule 4008 in this regard included:

-the importance of the deposition,

-the financial status of the parties,

-the importance of cross-examination by trial counsel, and

-the difficulty of retaining and briefing local counsel to conduct that cross-examination at the deposition to site.

Applying these factors to the case at hand, the court in Locker v. Henzes ruled that the defense request for fees and expenses under Rule 4008 should be denied. More specifically, the court found that the Plaintiff’s trial expert’s opinion testimony was vital to the Plaintiff’s malpractice claim, the parties relative financial conditions indicated that the Plaintiff lacked the financial means to pay the defense counsel’s requested costs, and the court also found that a viable and less costly alternative existed in the form of a video conferencing participation.  Judge Nealon therefore ruled that these factors all weighed against granting the Defendants’ motion under Rule 4008.

Anyone desiring a copy of Judge Nealon’s detailed Opinion Locker v. Henzes (Pa.R.C.P. 4008 issue) may contact me at dancummins@comcast.net.

Tuesday, January 17, 2012

Federal Middle District Court Judge Robert D. Mariani Issues Opinion On Coverage Question in Construction Case

Judge Robert D. Mariani, who recently took the bench in the U.S. Federal District Court for the Middle District of Pennsylvania, has handed down one of his first Opinions on insurance coverage and bad faith issues in the context of the construction-related case of L.R. Costanzo Co., Inc. v. Am. Fire & Cas. Ins. Co., et al.,3:10-CV-774, 2012 U.S. Dist. LEXIS 1655 (Jan. 6, 2012).

By way of background, L.R. Costanzo Co., Inc., a construction company was a general contractor involved in the construction of a building for a client. After the project was completed the client began to notice water damage about the building. The client filed an underlying suit against the construction company alleging (1) breach of contract; (2) breach of warranty; (3) breach of the duty of good faith; and (4) negligence in the construction of the building.

When L.R. Costanzo Co., Inc. turned to its carrier for coverage and a defense, the carrier conducted an investigation and denied coverage. The construction company sued its carrier in the Lackawanna County Court of Common Pleas for breach of contract and bad faith. The carrier removed the matter to Federal Court where it eventually came before Judge Mariani on the carrier’s motion for summary judgment.

On January 6, 2012, the Court granted the Defendants’ Motions for Summary Judgment. In its opinion, the Court addressed, among other issues, whether the carrier(s) sued had breached a duty to defend the construction company in the underlying action, and if so, whether the carrier(s) acted in bad faith in not defending L.R. Costanzo Co., Inc.

Citing well-settled Pennsylvania case law, i.e., Kvaerner Metals Div. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006), Judge Mariani stated that, in determining whether an insurer has a duty to defend the insured, a reviewing court must look only at the underlying complaint and apply the allegations of the Complaint to the insurance policy at issue. L.R. Costanzo at *9. Judge Mariani concluded that the underlying Complaint in this matter, “on its face, the Complaint alleges faulty workmanship as the basis for its counts/claims.” Id. at *11.

The insurance policy at issue allowed for coverage in the event of an “occurrence,” which was generally defined as an “accident” in the policy.

Judge Mariani went on to note that it was equally well-settled that the faulty workmanship alleged in the underlying Complaint has not been considered to constitute an “occurrence” under Pennsylvania law. Id. at *12. The court stated, “there is substantial case law in Pennsylvania and the Third Circuit stating that breach of contract, breach of warranty, and even negligence claims do not give rise to an ‘occurrence’ when it means ‘accident’ as it does here.” Id. at *13.

Relying on Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. Ct. 2007), the Court went on to note that “Even if Plaintiff’s work itself were not faulty and a subcontractor’s work were faulty, there is no duty to defend.” Id. at *15.

The Court also rejected the argument of the construction company that its work was not faulty but was in accordance with the architect’s faulty design. Judge Mariani ruled that even were the Court to decide that the underlying Complaint alleged defective design by the architect, there was still no “occurrence” because Plaintiff’s argument was analogous to asserting faulty workmanship by a subcontractor, which, under Gambone does not result in any implication of coverage.

With regards to the Plaintiff’s bad faith claim, Judge Mariani relied on Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1994), which holds, “[u]nder Pennsylvania law, to recover for bad faith, the insured must show that the insurer ‘did not have a reasonable basis for denying’ the requested relief, and ‘knew or recklessly disregarded its lack of reasonable basis in denying the claim.’” L.R. Costanzo at *18.

After reviewing the evidence presented, the Court held that “Because there was no ‘occurrence’ under the policy, Defendants did not act in bad faith in denying a defense to Plaintiff in the underlying case.” Id. at *19. The Court also found that the carrier(s) engaged in a thorough inquiry before determining that there was no duty to defend.

A copy of Judge Mariani's decision in L.R. Costanzo v. Am. Fire & Cas. Ins. Co. can be viewed here.

Source: Blog post on PDI's blog, Counterpoint Plus, by Attorney Timothy W. Stalker and Attorney Matthew J. Brasch who are both affiliated with the Blue Bell, PA firm of Stalker, Vogrin, Bracken & Frimet.

Monday, January 16, 2012

Northampton County Court of Common Pleas Dismisses Punitive Damages Claim Based on Cell Phone Use

A claim for punitive damages based upon an allegation that the defendant driver was using a cell phone at the time of a motor vehicle accident was recently dismissed in a decision issued on January 11, 2012 by Judge Leonard N. Zito of the Northampton County Court of Common Pleas in the case of Xander v. Kiss, CV - 2010 - 11945 (C.P. Northampton Jan. 11, 2012 Zito, J.).

In his decision, Judge Zito rejected the plaintiff's attempt to base such a claim upon the definition of punitive damages found under the Restatement (Second) of Torts Section 908.  Noting that the Pennsylvania Supreme Court has held that punitive damages are an extreme remedy available only in the most exceptional of circumstances, Judge Zito ruled that the allegations in the plaintiff's Complaint did not rise to the level of egregiousness required by Pennsylvania law to support such a claim.

The court stated that, to the contrary, viewing the facts pled in the Complaint in a light most favorable to the plaintiff, it was only alleged by the plaintiff that the "Defendant simply lost control of his vehicle while speaking on his cellular phone, causing a motor vehicle accident...." 

Judge Zito stated that while such alleged facts may support a claim of negligence, the allegations did not arise to a level of an evil motive or reckless indifference to the rights of the plaintiff as required for a punitive damages claim.  Without any other facts pled to show recklessness, such as excessive speed or running a red light or stop sign, etc., the court found that a punitive damages claim was not warranted in this matter.  Accordingly, the defendant's motion to strike the punitive damages claim was granted.

The prevailing defense attorney in this matter was Attorney Gerald Connor of the Scranton office of Margolis Edelstein.

Anyone desiring a copy of the court's opinion in Xander v. Kiss may contact me at dancummins@comcast.net.

Source of imagehttp://www.freedigitalphotos.net/images/view_photog.php?photogid=659

Friday, January 13, 2012

$2.7 Million Dollar Settlement in Federal Middle District Court ATV Crash Case

It was reported in today's Times-Tribune in Scranton by reporter Joe McDonald that the Foley Law Firm secured a $2.7 million dollar settlement on behalf of their client in a fatal ATV crash case.  The 19 year old decedent was a passenger on an ATV driven by an allegedly intoxicated driver during the July 4th weekend in 2009.

Here is a link to the article:  http://thetimes-tribune.com/fatal-atv-crash-suit-settled-for-2-7-million-1.1256877#axzz1jLTK4jGZ

Thursday, January 12, 2012

Judge Nealon of Lackawanna County Addresses Admissibility of Expert Testimony in Medical Malpractice Case

In a recent medical malpractice decision of note in the case of Locker v. Henzes, No. 2005-Civil-3174 (C.P. Lacka. Dec. 20, 2011 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed the admissibility of expert testimony tendered by a Plaintiff.

Locker involved a medical malpractice case pertaining to an allegedly erroneous implantation of a femoral trial component rather than the regular permanent component during a total hip replacement procedure.

Prior to trial, the medical malpractice Defendants filed Motions in Limine seeking to preclude the testimony of the Plaintiffs’ pathology expert and biomedical engineering expert. The Defendants argued that those experts should be barred from testifying since their reports were produced beyond the court-established deadlines and since the experts did not satisfy the expert witness competency criteria found in §512 of the Medical Care Available and Reduction of Error (MCare) Act, 40 Pa. C.S.§1303.512. The Defendants also asserted a Frye challenge to the biomedical expert’s analysis and opinions pursuant to Pa. R.C.P. 207.1.

Judge Nealon ultimately ruled that, although the experts’ reports were indeed produced beyond the discovery deadline, they were still served upon defense counsel more than six (6) months prior to the trial. The Court noted that the Defendants had not demonstrated any prejudice as a result of the belated production of the expert reports and, as such, this portion of the Defendants’ motions was denied.

Judge Nealon also found that the pathology expert was properly qualified under the mandates of §512(b) of the MCare Act.

The Court additionally ruled that the biomedical engineering expert would be allowed to testify, based upon his biomechanical evaluation of the trial femoral component, that the implantation of the provisional device caused increased stress shielding and resulted in bone remodeling. However, Judge Nealon ruled that this non-medical expert was not competent under §512(b) to offer opinions on medical causation, including the cause of the decedent’s pain, weakness, and physical limitations.

Judge Nealon further ruled that neither the pathologist nor the biomedical engineer was qualified to testify concerning the applicable standard of care pursuant to §512(c) of the Act.

Last but not least, the Court also denied the Defendants’ Frye Motion with respect to the biomedical engineering expert since the methodology used by that expert did not involve novel scientific evidence that has failed to attain a general acceptance in the relevant scientific field.

Anyone desiring a copy of this medical malpractice decision of Judge Nealon in the case of Locker v. Henzes may contact me at dancummins@comcast.net.

Source of photo: mountainside-medical.com

Wednesday, January 11, 2012

Third Circuit Says Producing Only Copies Can Be Spoliation

The United States Third Circuit Court of Appeals recently ruled in the case of Bull v. UPS, 2012 WL 10932 (3d Cir. Jan. 4, 2012) (Opinion by Senior Judge Richard L. Nygaard), held that producing copies of documents, as opposed to the originals, can, in certain limited circumstances, constitutes spoliation of evidence.

This matter involves a Claimant who was allegedly injured on the job at UPS. The Claimant began to receive worker’s compensation but was eventually advised by UPS that they did not have anymore work for her.  The company suggested that the Claimant seek permanent disability.

In response, the Claimant produced notes from her own doctor in the form of a second opinion as to her ability to work in a limited fashion. When UPS argued inconsistencies in the doctor's notes produced by the Claimant, noting in part that the signatures of the doctor on the two notes looked different and the amount that the Claimant could lift was changed from 50 pounds in the first note to 70 pounds in the second note, UPS sought a spoliation of evidence sanction.

It was additionally noted that the second doctor’s note produced was cut off on the bottom on the copy and some portions were illegible.

At the trial court level, a New Jersey District Judge had granted a mistrial and invited UPS to file a Motion for Sanctions regarding the alleged spoliation of evidence by the Claimant in terms of failing to produce the original documentation. The trial court judge ultimately determined that the appropriate spoliation sanction was the dismissal of the case with prejudice. The Claimant appealed the Third Circuit Court of Appeals who overruled the trial court.

The Third Circuit Court of Appeals found that the trial court judge abused his discretion in ordering the harsh sanction of a dismissal of the case. While noting that, in some instances, the production of copies of records, rather than the original documents, may constitute spoliation where the original document contains relevant evidence that is not available in the copies, the appellate court ruled that, under the circumstances presented in this case, an adverse inference sanction, albeit still harsh, would have been a more appropriate sanction under the circumstances.

The Third Circuit reviewed the record and found that there was insufficient evidence to establish that the Claimant had intentionally withheld the original doctor's notes which were in her possession. The Court also found that the record left doubt as to whether UPS had ever properly requested the original documents and, if so, whether the Claimant’s counsel had submitted that request to his client.

In a notable footnote 12 in the opinion, the court stated that, “[a]s electronic document technology progresses, the concept of an ‘original’ document is becoming more abstract.” Accordingly, the Third Circuit highlighted its “position that clarity and communications from counsel that establish a record of a party’s actual knowledge of [a duty to search for, maintain, and, where necessary, produce ‘original’ documents] will ensure that this technology-driven issue does not consume an unduly large portion of the court’s attention in future litigation.”

Anyone desiring a copy of this case may click on this link: http://case.lawmemo.com/3/bull.pdf.

Source:  "No Bad Faith, No Spoliation, 3rd Circuit Rules," Legal Intelligencer by Gina Passarella (Jan. 6, 2012).

Monday, January 9, 2012

Recent Eastern District Federal Court Bad Faith Case of Note

In a decision handed down last month, the Eastern District Court of Pennsylvania ruled in Zenith Ins. Co. v. Wells Fargo Ins. Services of Pennsylvania, Inc., 2011 WL 6210686 (E.D.Pa. Dec. 13, 2011) (mem.), that the bad faith statute, 42 Pa.C.S. Section 8371 was not limited to a claim involving a denial of benefits.

In Zenith, the court noted that the bad faith statute should be construed as a remedial statute is designed to be broadly construed as a remedy for all instances of bad faith by insurer whether occurring before, during or after litigation.

Anyone desiring a copy of the recent bad faith decision of note may contact me at dancummins@comcast.net.

Thursday, January 5, 2012

Judge Carmen D. Minora of Lackawanna County Court of Common Pleas Addresses Negligent Hiring/Supervision Issues

In his recent decision in the case of Delvecchio v. St. Joseph’s Center, No. 2003-Civil-2950 (C.P. Lacka. 2011 Minora, J. ), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas reviewed the law pertaining to negligent supervision claims in a case in which the Plaintiff accused the employer, St. Joseph’s Center, of negligently supervising its employee with respect to that employee’s care of a mentally disabled patient. According to the opinion, this matter stems from allegations of sexual assault against the patient by an employee of the Defendant, St. Joseph’s Center.

The case came before the court by way of the Defendant’s summary judgment on various issues, including an argument that the actions of the employee were outside the scope and course of the employee’s employment and that there was no factual basis to support a claim of negligent supervision.

After setting out the applicable law in great detail on the various claims presented, Judge Minora ultimately ruled that the Plaintiff would be allowed to proceed to the jury on the claim of vicarious liability against the employer given the factual issues presented.

The court also denied the Defendant employer’s Motion for Summary Judgment on the issue of negligent supervision over the employee.

The court also allowed the Plaintiff’s claim for punitive damages to proceed to a jury as well.

Judge Minora did grant the Defendant’s Motion for Summary Judgment on the issue of negligent hiring of the employee as there was no evidence that the employer knew or should have known, at the time of hiring, that the employee would harm a third party. The record before the court revealed that the employer had completed a criminal background check and obtained a child abuse clearance on the employee.

The decision by Judge Minora in the case of Delvecchio v. St. Joseph’s Center serves as a nice primer on the liability of employers for the acts of their employees causing injury and damages to third persons. Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Auto Law Medical Expenses Case of Note Out of Middle District Federal Court

Judge Connor in the Middle District of Pennsylvania recently issued an detailed Order regarding a Motion in Limine on a medical expenses issue in Bieber v. Nace, 2011 WL 6180719 (M.D.Pa. Dec. 13, 2011)

This mattter arose out of a motor vehicle accident. The Defendants filed affirmative defenses in their Federal Court response to the Complaint in which they asserted that the Plaintiffs' recovery was reduced or barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). 

The Plaintiffs filed a pre-trial motion in limine arguing that these defenses should be stricken since the medical bills were paid by a self-funded ERISA plan which was making a claim for reimbursement.  The Plaintiffs produced evidence to support their contentions in this regard.

Judge Connor reviewed the pertinent statutes and case law and finds that the MVFRL cannot serve to reduce or bar the plaintiff's recovery of medical expenses paid for by ERISA.  As such, the court granted the Motion in Limine.

Tuesday, January 3, 2012

Plaintiff Prevails on Philadelphia County Facebook Discovery Issue

Philadelphia County Court of Common Pleas Judge William J. Manfredi has denied a defendant's general discovery request for access to a plaintiff's Facebook pages in the case of Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila Dec. 13, 2011 Manfredi, J.).

The Martin decision is a one line Order.  According to the filings in the matter, the plaintiff argued the insurer had not identified any public information on the plaintiff's Facebook site, relevant to the case or not, that would trigger a right to further discovery.

As noted by Ben Present in his recent article in the Legal Intelligencer/Law Weekly, "the defense-favored trend driving the early precedent in Pennsylvania social media litigation doesn't appear to have lost any steam following Martin v. Allstate Fire and Casualty Insurance Co . Rather, while the earlier defense opinions hinged on testimony that conflicted with publicly available Facebook information in allowing discovery, the recent plaintiffs' decisions indicate the party moving for discovery must come to the table with at least that."

Anyone desiring a copy of the Defendant's Motion to Compel, the Plaintiff's Response, and Judge Manfredi's Order in Martin v. Allstate may contact me at dancummins@comcast.net.

Source: "Plaintiffs Win Round on Discovery of Facebook Pages," by Ben Present in the Jan. 3, 2012 Pennsylvania Law Weekly.

Judge Nealon of Lackawanna County Addresses Alleged Release in Medical Malpractice Case

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a declaratory judgment action, filed in relationship to a medical malpractice suit, in which certain defendants and their primary liability insurance carrier sought a judicial declaration that the factual stipulations contained in bankruptcy court motions filed by the tort plaintiff effectively released the emergency room physician from malpractice liability, extinguish the alleged vicarious liability of the defendant hospital, and also reduced the liability of the other alleged joint tortfeasor defendants in the case of Moses Taylor Hospital v. Carnevale, No. 11-Civil-3999 (C.P. Lacka. Dec. 8, 2011 Nealon, J.).

By way of background, a defendant physician in this medical malpractice suit filed for bankruptcy thereby triggering an automatic stay. In an effort to secure relief from the automatic stay to allow the tort case to proceed, the plaintiff filed a motion with the bankruptcy court seeking relief from the automatic stay in which motion the plaintiff noted an agreement not to execute any malpractice judgment against the debtor physician’s personal assets and, instead, to only pursue the physician’s liability insurance coverage (primary and MCare).

In response, the physician’s hospital-employer filed a declaratory judgment action in the Lackawanna County Court of Common Pleas seeking a declaration that the plaintiff's agreement not to execute against the doctor’s personal assets constituted a release of the physician, extinguished the vicarious liability claim against the hospital-employer based upon the conduct of that physician, and also resulted in a pro rata or a pro tanto reduction of the other defendant physicians’ tort liability.

According to Judge Nealon’s opinion, the bankruptcy court denied the Motion for Relief from the automatic stay until the state court decided this declaratory judgment action. The case came before Judge Nealon by way of a demurrer filed by the plaintiff to the declaratory judgment Complaint.

The underlying tort plaintiff sought to dismiss the declaratory judgment action on the grounds that his bankruptcy motion specifically stated that the motion should not be considered to be a release of the bankrupt tortfeasor or any other malpractice Defendant and, to the contrary, the motion reflected a clear intent to pursue, rather than abandon, his malpractice claim against the various defendants.

After reviewing the underlying matters and the applicable law, Judge Nealon ruled that the unambiguous language of the claimant’s agreement not to execute against the debtor doctor’s personal assets could not possibly be construed as a release of that tortfeasor or any other malpractice defendant or result in a reduction of their joint tortfeasor exposure.

Judge Nealon sustained the tort claimant’s demurrer after finding that it was “clear and free from doubt” under the governing law that the parties pursuing the declaratory judgment could not obtain their requested relief based upon the facts set forth in the bankruptcy motion.

In so ruling, the court provided a detailed review of the pertinent law relevant to the effects of alleged releases.

Anyone desiring a copy of this decision in the case of Moses Taylor v. Carnevale by Judge Nealon may contact me at dancummins@comcast.net.


As you break in those new 2012 calendars, I am hoping you might be willing to consider marking May 3, 2012 for the 2012 TORT TALK EXPO CLE Seminar set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania from around noon to 4:30 pm, followed by a Cocktail Reception.

I will present an hour long Civil Litigation/Auto Law Update.

The second hour will be presented by Dr. Michael Brooks who will talk on "Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries."  Dr. Brooks will go through a variety of commonly seen injuries in auto accident cases along with tips on interpreting x-ray and MRI reports.

The final hour will be a "View from the Bench" hour.  So far, the judicial panelists include Supreme Court Justice Michael Eakin and Judge Correale Stevens, the President Judge of the Superior Court.

More details to follow.....

Sunday, January 1, 2012

Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”).  The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).

The above rules constitute three distinct variations of NIED claims.  Now, with Toney v. Chester County Hospital, comes a fourth variation.

In Toney, the Court granted an appeal  to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal.  Unfortunately, the Plaintiff's child was later born with several profound abnormalities.  The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.

The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted.  The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint;  the Superior Court reversed the trial court).

After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."

More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."

In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."

The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."

Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice.  As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.

That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.

The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.

To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.

To read Justice Todd's concurring Opinion in support of affirmance, click here.

To read Chief Justice Castille's Opinion in support of reversal, click here.

To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.

I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.

Six New Luzerne County Judges Sworn In

Here is a link to a December 30, 2011 article by Sheena Delazio of the Times Leader reporting on the swearing in of the six new Judges to the Court of Common Pleas in Luzerne County: