Tuesday, July 31, 2012

Summary Judgment Granted in Monroe County Slip and Fall Case



In her recent Decision in Paybon v. Miggy’s Corp Five, PICS Case No. 12-1228 (C.P. Monroe Co., April 3, 2012, Harlacher Sibum, J.),  Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas granted summary judgment in favor of a Defendant possessor of land in a slip and fall case involving a puddle of water near an ice machine in a grocery store.  

According to a report on this case, Plaintiff entered the Defendant’s grocery store to shop.   After about 15 minutes in the store, the Plaintiff slipped and fell on water that was located approximately 12 feet from an ice machine.  

Apparently, during discovery, the Plaintiff admitted that she did not know what caused the water to be on the floor or how long it was there before she fell.   It was also reported that a store employee did not seem to know how the water became to be on the floor.  

Although the Plaintiff alleged that the water could have come from the nearby ice machine, the court observed that this was mere speculation.   The Court also reiterated that the Plaintiff did not know what caused the water to come on the floor and there was no evidence for a jury to determine the cause of the water on the floor.  

It was also noted that the Plaintiff did not establish any actual or constructive notice on the part of the Defendant that there was a puddle on the floor.  Judge Harlacher Sibum also stated that notice could not be inferred by the mere fact that an employee was allegedly in close proximity to the allegedly hazardous condition at the time of the incident.  

Accordingly, given the absence of any evidence that the Defendant caused the water to come on the floor or had notice of its presence, there is no issue to be submitted to a jury and summary judgment was granted.  

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service by calling 1-800-275-7427 and paying a small fee.  

Source:  "Case Digests" Pennsylvania Law Weekly (2012).


To view summaries of other Premises Liability cases here on Tort Talk, click this LINK.

Reckless Conduct Allegations Allowed to Remain in Monroe County Auto Accident Complaint

In his recent decision in the case of Ocasio v. Biney, PICS Case No. 12-1217 (C.P. Monroe Co., April 24, 2012, Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas denied a Defendant’s Motion to Strike Plaintiff’s allegations of reckless conduct and punitive damages in a motor vehicle accident Complaint.   The Court essentially ruled that it could not determine, at the pleadings stage of the litigation, whether the Defendant’s alleged conduct while operating his vehicle, if proven as alleged, was not undertaken with a reckless state of mind.  

Judge Zulick noted that, in order to establish the reckless state of mind necessary to support a punitive damages claim, a Plaintiff must prove that the Defendant knew, or had reason to know, that his conduct created an unreasonable risk of harm to an other and that the risk created by his conduct was substantially greater than the risk necessary to establish negligence.  

In this matter, the Plaintiff alleged that the Defendant was negligent and reckless and careless in that he failed to operate his vehicle at a safe speed and failed to bring his vehicle to a stop without contacting the Plaintiff’s vehicle.  

As noted above, Judge Zulick allowed these claims to proceed through the pleadings stage.  The Court left the door open for the Defendant to revisit the issue prior to trial on the question of whether the evidence produced was sufficient to allow a punitive damages claim to proceed to a jury.   As such, the Court overruled the Defendant’s Preliminary Objections in the nature of a demurrer to the Plaintiffs’ punitive damages claim.  

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service by calling 1-800-275-7427 to request a copy at a small fee.

To view Tort Talk blog posts on other cases addressing allegations of reckless conduct in standard negligence cases, skim this list of posts at this LINK.

Monday, July 30, 2012

Still Time To Register for August 30th CLE With the Phillies



Registration is still open until August 6th for the PBI "CLE with the Phillies" seminar that I will be presenting on Thursday, August 30, 2012 at Citizens Bank Park in Philadelphia before the Phillies vs. Mets game day game.

Check-in time for the seminar is 11 a.m. The seminar is from 11:30 a.m. to 12:30 p.m. Game time is 1:05 p.m.

Your game ticket and lunch are included in the price for registration.

Please consider joining this day out of the office and at the ballpark as a nice way to end the summer and pick up a CLE credit. Hopefully, the Phillies will be back to their winning ways by then.

I will be providing a Civil Litigation Update as well as presenting my article, "Take Me Out to the Ballgame: Little League Tips for Big League Lawyers."

To register for this August 30, 2012 CLE at Citizens Bank Park. visit http://www.pbi.org/ and type 7376 in the "Search Our Entire Catalog" box and hit enter--then follow instructions on the page you are taken to in order to complete the registration. Your ticket to the game is included in the price.

Note that parking is not included and CLE coupons may not be used for these Ballpark CLE seminars.




Source of image:  www.community.active.com

Recent Post-Koken Decisions on Severance vs. Consolidation

I was recently advised of the following post-Koken cases in which the Court addressed the issue of severance vs. consolidation of the third party negligence actions against the defendant driver and the breach of contract UIM claim against the UIM carrier:



Philadelphia County


Parsons v. Hinton and State Farm Insurance Company, No. 02137, August Term, 2010 (C.P. Phila. Co. Dec. 1, 2011, Tereshko, J.) (Court grants tortfeasor Defendants’ Motion to Sever actions filed by Plaintiff against third party tortfeasor and UIM carrier).


Burke v. Burke and State Farm Insurance Company, No. 1875, August Term, 2011 (C.P. Phila. Co. Jan. 27, 2012) (Court denies Motion to Consolidate filed by UIM carrier).


Antrim v. Bullard and State Farm Mutual Automobile Insurance Company, No. 294, June Term, 2011 (C.P. Phila. Co. Oct. 11, 2011, Manfredi, J.) (Court grants tortfeasor Defendants’ Preliminary Objections and severs the claims against the tortfeasor against the claims against the UIM carrier; court also transfers claims against the tortfeasor Defendants to Delaware County as the Plaintiff did not allege any basis for venue in Philadelphia as to the tortfeasor Defendants).  



Luzerne County


Weitoish v. Heck and State Farm Mutual Automobile Insurance Company, No. 13831 OF 2009 (C.P. Luz. Co. July 6, 2012, Amesbury, J.) (Court denies Preliminary Objections of UIM carrier seeking severance of actions against UIM carrier from claims filed against third party tortfeasor).  



Anyone desiring a copy of these decisions may contact me at dancummins@comcast.net.

I send thanks to Attorney Lori Miller of the Philadelphia law firm of Goldberg, Miller & Rubin as well as Attorney Stephen Fendler of the Kingston, PA law firm Fendler & Associates, P.C. for advising me of these decisions.

Pennsylvania Eastern District Federal Court Agrees to Sever Bad Faith Portion of Post-Koken Case


In her recent detailed Order in the case of Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.), Federal Eastern District Judge Mary A. McLaughlin granted Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation. 

In so ruling, the Court cited to Federal Rule of Civil Procedure 42(b) which provides that, “For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues [or] claims.”  

Judge McLaughlin found that it “makes sense” to separate out the UIM claims from the bad faith claims in this matter.   The court noted that UIM claim require a determination of the liability and damages issues.   The issue of the process that the insurer went through in its investigation as to the Plaintiffs’ claims “is not relevant” to the liability and damages issues.

The court also noted that the difference between the two types of claims against Allstate Insurance Company was also “obvious when discovery is considered.”   More specifically, the discovery on the UIM claim “should” be rather limited with respect to Allstate as opposed to the wider discovery that may be permitted in a bad faith claim.  

Judge McLaughlin also concluded her Order by indicating that “[i]n addition, it may be that the bad faith claim will become moot as the underlying case is litigated, or its focus may end up being Allstate’s conduct in the future.”   Based on this reasoning, the court granted Allstate’s Motion to Bifurcate and Stay the bad faith claim in a post-Koken case.  

Anyone desiring a copy of this detailed Order in the case of Moninghoff v. Tilet and Allstate Insurance Company may contact me at dancummins@comcast.net.



I send thanks for the prevailing defense attorneys, Kristin H. Jones and Marshall Walthew of the Philadelphia office of Pepper Hamilton LLP for forwarding this Decision to my attention.    

Thursday, July 26, 2012

ARTICLE: Show Me The Money: Medicare Liens and Personal Injury Matters

The below article of mine was recently published in the July 17, 2012 Pennsylvania Law Weekly and is republished here with permission:


Show Me the Money: Medicare Liens and Personal Injury Matters

Courts Repeatedly Rule That Settlements Cannot Be Upheld by Medicare Liens

By

Daniel E. Cummins
Pennsylvania Law Weekly
July 17, 2012


A recent trend in the settlement of personal injury matters involves demands by the tortfeasor's liability insurance company requesting a plaintiff to produce final lien information in regard to Medicare before the matter can be finally concluded and a settlement draft issued. This is so because of the potential penalties that may arise if Medicare liens are not addressed out of the settlement funds.

In response to these demands by liability carriers, there has been a more recent push back by plaintiffs counsel objecting to such requests for documented lien information, particularly where there has been previous confirmation that no such Medicare liens exist.

It seems that the Medicare rules and regulations surrounding the payment of Medicare liens are so obtusely intertwined and worded that even lawyers need other lawyers to fully explain the mandates and requirements of the law.

This makes lawyers nervous. And when lawyers get nervous, litigation is likely to result as they turn to the courts for guidance on how to proceed.

The recurring dispute over whether or not final lien letters from Medicare are required before a settlement can be completed has resulted in a number of recent court decisions. All of these decisions appear to support the conclusion that the settlement of a personal injury action cannot be held up by a demand that a final lien letter be secured from Medicare.

Framework of Medicare Liens

As noted, the Medicare rules on liens are difficult to follow. However, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. aptly summarized the framework of the law in his recent opinion in the case of Wimberly v. Katruska, PICS Case No. 12-1060 (C.P. Allegheny Co. May 23, 2012 Wettick, J.).

Wettick explained that, under the federal Medicare Secondary Payer Act, Medicare can only pay bills not paid by a "primary payer." Under the law, if Medicare initially makes a payment of a medical expense and a primary payer is later identified, the primary payer must reimburse the U.S. government for the payment made.

Wettick went on to note that under the Medicare Secondary Payer Act, automobile or liability insurance carriers meet the definition of a primary payer. Therefore, under the law, a liability insurance company paying a settlement can be required to reimburse Medicare under the applicable regulations. The regulations also give Medicare and the Centers for Medicare Services a direct right of action to recover the lien amount from any primary payer.

Thus, there is a valid fear for automobile and liability insurance carriers that, if they pay out a settlement, Medicare could later come after the insurance carrier to pay back a Medicare lien if that lien is not satisfied by the injured party plaintiff out of the settlement proceeds. To guard against this, the insurance carriers have demanded, before the settlement check is issued, that the injured party plaintiffs provide written confirmation from Medicare that there is no Medicare lien to be addressed. In some instances, as a further means of protection, some insurance carriers have even demanded that Medicare be listed as a payee on the settlement draft.

Guidance from Superior Court

In its 2010 decision in the case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa.Super. 2010, Allen, Mundy, and Colville, JJ.), the Pennsylvania Superior Court addressed the propriety of a liability carrier's demand that Medicare be listed as one of the payees on a settlement check.

In Zaleppa, the plaintiff obtained a $15,000 jury verdict against the defendants, $5,000 of which was for future medical expenses and the remainder of which was for pain and suffering.

In post-trial motions, the defendants argued that the trial court erred in denying the defendants' request that the court enter an order directing the defendants to pay the verdict either (1) by naming Medicare, along with the plaintiff and her attorneys, as payees on the check satisfying the verdict, or (2) by paying the verdict into court pending notification from Medicare that all outstanding Medicare liens had been satisfied.

In its opinion, the Superior Court noted that there was no evidence presented at the trial court level that any of the plaintiffs' past medical treatment had been paid by Medicare to date. The Superior Court additionally noted that there was no claim presented by the plaintiff at trial for any past medical expenses because she was precluded from doing so by 75 Pa.C.S.A. 1722 in that the first-party medical benefits under the plaintiff's own automobile insurance policy had not been exhausted. The Zaleppa court further emphasized, in any event, that the jury did not enter any award for past medical expenses.

The Superior Court therefore upheld the argument by plaintiffs counsel Lenahan & Dempsey of Scranton that there was no legal basis under either federal or Pennsylvania law for the insurance carrier to assert the interests of the U.S. government as to the reimbursement of Medicare liens. As such, the Superior Court held that the trial court properly denied the defendants' request for an order granting leave to the carrier to list Medicare as a payee on the settlement draft.

It is noted that the Superior Court provides a nice analysis in Zaleppa of a defendant's (and arguably a plaintiff's) obligations under the Medicare Secondary Payer Act.

A String of Trial Court Opinions
After the Superior Court took away the possible protection offered by naming Medicare as a payee on settlement drafts, automobile and liability insurance carriers sought out protection from potential Medicare liens by demanding that injured party plaintiffs provide written confirmation from Medicare as to whether or not any Medicare liens existed before a settlement draft would be issued. In response, plaintiffs have refused, demanded immediate payment of the agreed-upon settlement amount and proceeded to courts on motions to enforce the settlement.

These disputes have led to a series of trial court opinions over the past year, all of which have held that a settlement of a claim cannot be held up in this regard. The recent decisions suggest that, instead, the insurance carriers and their insureds should seek to protect themselves by way of clearly worded indemnification clauses in the general release mandating that the injured party agree to protect the insurance carrier should any Medicare lien issue arise in the future.

In both the Cambria County case of Vincent v. Buck, 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 the granting of a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objections that Medicare lien issues were not yet resolved. In both decisions, the trial courts emphasized that there was nothing in the general releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure the Medicare lien was addressed prior to the issuance of the settlement check.
In Dailey-Console, Judge Arthur L. Zulick granted a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved.

The Dailey-Console case arose out of a motor vehicle accident. The parties eventually agreed to settle the claims and the plaintiffs signed a general release. However, the defendants did not tender payment of the settlement because they asserted that a Medicare lien existed that had to be satisfied prior to payment as the defendants could potentially be liable for the lien.

The plaintiffs argued that the terms of the release executed by the parties governed the dispute and that, under the release, they were entitled to an immediate payment of the settlement funds. The court agreed.

Reviewing the release between the parties, Zulick found that, although the release contained provisions holding the defendants harmless from payments to a third party and specifically stated that the plaintiffs would be responsible for the satisfaction of any separate Department of Public Welfare Medicaid lien from the settlement proceeds, the release was silent as to any obligation by the plaintiff to obtain clearance from Medicare.

Since the court in Dailey-Console determined that the release was valid as written and that the terms of the release did not address any Medicare lien, the Medicare lien issue could not be relied upon as a roadblock to the enforcement of the release terms, including the payment of the settlement amounts to the plaintiff. In so ruling, Zulick pointed to the Pennsylvania Superior Court Decision in Zaleppa v. Seiwell.

Similarly, 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 either of the two plaintiffs involved in this matter (these letters were not, however, "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 (meaning the first party automobile insurance carrier would be responsible to pay the medical bills, not Medicare).

The plaintiffs also emphasized that in the release, which was authored by the automobile insurance carrier, there was no express 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 Pennsylvania Superior Court decision of Zaleppa v. Seiwell, in which the appellate court held that neither the liability carrier nor the defendant tortfeasor had any legal standing to attempt to act on behalf of Medicare in terms of protecting a lien.

Based on these facts, the court granted the plaintiffs' motion to enforce the settlement. In its order, the trial court also granted the plaintiffs' requests for interest on the delayed payment and attorney's fees and costs associated with the motion.

This issue was also more recently addressed by Wettick in his May 23 opinion in Wimberly v. Katruska.

In Wimberly, the plaintiff settled her personal injury claims and demanded payment. The defendant and the defendant's carrier apparently refused to issue the settlement payment until the plaintiff provided a no-lien letter from Medicare. Accordingly, the plaintiff filed a petition to enforce the settlement.

The defense in Wimberly, argued that the liability insurance company was entitled to withhold its payment of the settlement until Medicare issued a no-lien letter as that was the only way an insurance company and its insured could avoid potential double payments if the plaintiff did not satisfy any such lien out of the settlement proceeds.

Wettick rejected this argument and, like the other trial court judges, pointed to the Superior Court decision of Zaleppa v. Seiwell.

However, because the defendant in this Wimberly matter contended that the parties' settlement agreement conditioned the payment of the settlement on the receipt of a no-lien letter, the court issued a rule to show cause why the settlement agreement should not be enforced. In issuing the rule, the court noted that the defendant had the burden of establishing an agreement between the parties that the payment was conditioned on the securing of a no-lien letter.

Remedy: Spell It Out In the Release

The cases to date reviewing the impact of Medicare liens on the finalization of personal injury matters have clearly stated that the defense cannot mandate that Medicare be included as a payee on any settlement draft.

The decisions have also clarified that, unless set forth as a requirement in the general release between the parties, the defense cannot require the injured party plaintiff to produce a no-lien letter or final lien letter from Medicare before the settlement check will be issued.

Given the ridiculously slow response time of Medicare to requests for information on any Medicare liens, it is unlikely that plaintiffs will be willing to hold up any settlement payment by an agreement to produce written documentation from Medicare regarding the existence or status of any Medicare lien.

As such, it appears that the more reasonable, and judicially supported, fashion to finalize a personal injury settlement while still protecting the defense from any potential Medicare lien, would be to include language in the general release that (1) provides that the plaintiff agrees to remain responsible for any and all liens, including any liens asserted by any federal entity or agency, including but not limited to Medicare (and/or the Department of Public Welfare/Medicaid), and (2) provides that the plaintiff also specifically agrees to indemnify and hold the defendant and its liability carrier harmless for any and all liens that may arise, including but not limited to any Medicare (or Medicaid) liens.  •



Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Comerford & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.

Tuesday, July 24, 2012

PA Supreme Court Addresses Pre-Activity Releases


In its recent decision in the case of Tayar v. Camelback Ski Corp., Inc., No. 67 MAP 2010 (Pa. July 18, 2012 Todd, J.), the Pennsylvania Supreme Court addressed the issue of whether it is against public policy to release reckless behavior in a pre-injury exculpatory clause.

The Appellant, Camelback Ski Corporation, Inc., is a ski resort located in the Poconos.  Before permitting its customers to participate in snow tubing activities, Camelback requires each customer to sign a pre-printed release form.

In 2003, the Appellee was injured while engaging in snow tubing activities after having signed a release as required by the ski resort.  The injured party sustained multiple fractures in her right leg which were repaired by surgery.

The Superior Court had determined that the release at issue was valid only with respect to Camelback. and not the ski resort's employee that was involved in the event, and relieved Camelback from liability for only negligent conduct.

The Pennsylvania Supreme Court reversed the lower court's order in part, affirmed in part, and remanded the case. The Supreme Court reversed the order of the Superior Court by concluding that the ski resort's employee was indeed covered by the Release.

The Supreme Court affirmed the lower court's order with respect to the finding that "releasing recklessness in a pre-injury release is against public policy."  In other words, the ski resort's release form attempting to release the resort and its employees for liability for reckless conduct was invalid.

Anyone wishing to review this decision by the Pennsylvania Supreme Court in the case of Tayar v. Camelback Ski Corp., Inc. may click this LINK

I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price and Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Source of Image: www.snowtubes.com

Eastern District Court Rules on Certificate of Merit Issue

In its decision in the case of Mertzig et al. vs. Robert E. Booth Jr., et al., No. 11 - Civil - 1462 (E.D.Pa. April 25, 2012 Savage, J.), the United States District Court for the Eastern District of Pennsylvania addressed whether a plaintiff who sought to use expert testimony to prove elements of a claim under the res ipsa loquitur doctrine was barred due to the Certificate of Merit election imposed by Rule 1042.3(a)(1).

The court essentially held that if a plaintiff completes a Certificate of Merit and certifies that expert testimony is not necessary to prosecute the action, the plaintiff is thereafter barred from presenting expert testimony related to proving the claim including testimony related to standard of care and causation.

The Mertzig case involved a medical malpractice claim.  The Plaintiff underwent knee replacement surgery, which included a total left knee revision. During the procedure, the prosthetic was removed, cultured, and placed with a new device. Shortly thereafter, it was alleged that the prosthetic knee had been affected with staphylococcus capitis prior to placement in the plaintiff’s body during the surgery.

The plaintiff sued her medical providers claiming negligence, vicarious liability, and loss of consortium resulting from the staph infection. The plaintiff filed a Certificate of Merit pursuant to Pa. Rule 1042.3(a)(3), certifying as to each defendant that “expert testimony of an appropriate licensed professional regarding deviation from acceptable professional standards of care is unnecessary for prosecution of claim against the Defendant.”

During the litigation, the plaintiff produced four expert reports in support of a res ipsa loquitur theory. In response, all defendants filed Motions for Summary Judgment, arguing that Rule 1042.3(a)(3) barred the plaintiff from introducing expert testimony on the standard of care and causation after having certified that such testimony was unnecessary to prosecute the claim.
The court held that while a procedural rule, Pennsylvania Rule of Civil Procedure 1042.3(a), which requires a Certificate of Merit, has the effect of state substantive law.

The court noted that 1042.3(a) clearly provides certifying that expert testimony is not required is almost always irrevocable.  The court also noted that the Pennsylvania Supreme Court has not addressed this specific issue.  The Eastern District relied upon Pennsylvania Superior Court case of Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395, 399 n.3 (Pa. Super. 2012).

In the absence of guidance from the Pennsylvania Supreme Court on the issue presented, the Eastern District went on to rule that, absent exceptional circumstances, a party is bound by its certification, and when a party certifies no expert testimony is needed, it may not introduce expert testimony on the standard of care and causation on a res ipsa loquitur claim at trial.

Because the plaintiff was unable to support the claims without expert testimony, the defendant’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision in the case of Mertzig v. Booth, may click this LINK.

I thank Attorney Stephen Franko of the Scranton office of the law firm of Cipriani & Werner for bringing this case to my attention and for allowing me to paraphrase from his synopsis of the case to serve as the basis for this Tort Talk blog post.



Sunday, July 22, 2012

Senate Committee Advances Appointments of Brann and Mannion to Middle District Federal Court


On Wednesday, July 18, 2012, the Senate Judiciary Committee approved the nominations of attorney Matthew W. Brann, 46, and U.S. Magistrate Judge Malachy E. Mannion, 59, as U.S. Middle District Court of Pennsylvania judges.

The nominations now move to the full Senate for a vote. No date has been scheduled.

STILL SPACE LEFT: REGISTER FOR MY CLE AT THE PHILLIES GAME SET FOR AUGUST 30TH



Here is a link to the Pennsylvania Bar Institute's (PBI) flyer for my upcoming Thursday, August 30, 2012 Civil Litigation Update CLE before the daytime Phillies vs. Mets game at Citizens Bank Field in Philadelphia.  Registration closes on Monday, August 6th so please sign up now if you plan on attending.  Space is limited.

Hope to see you there--should be a nice day out of the office:

https://docs.google.com/open?id=0B83Pxa3TYcXMZmhPYkhSeV9jZEU

Appointed as Vice President of the North Region of the Pennsylvania Defense Institute


I am pleased to announce that, at the recent Annual Meeting of the Pennsylvania Defense Institute, I was appointed as Vice President of the North Region of the PDI.  I thank the PDI President, Patrick Sweeney, Esquire of the Philadelphia law firm of Sweeney & Sheehan for this appointment.

I will also continue to serve as the Co-Chairperson of the Auto Law Committee of the PDI.

Anyone wishing to become a PDI member (and/or wishing to join the Auto Law Committee in the PDI), can contact the Executive Director, David Cole, at coled01@padefense.org or go to this LINK to the PDI website to join.

Wednesday, July 18, 2012

Eastern District Severs and Stays Bad Faith Claim in Post-Koken Matter



In her recent detailed Order in the case of Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.), Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation.

In so ruling, the Court cited to Federal Rule of Civil Procedure 42(b) which provides that, “For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues [or] claims.”

Judge McLaughlin found that it “makes sense” to separate out the UIM claims from the bad faith claims in this matter. The court noted that UIM claim require a determination of the liability and damages issues. The issue of the process that the insurer went through in its investigation as to the Plaintiffs’ claims “is not relevant” to the liability and damages issues.

The court also noted that the difference between the two types of claims against Allstate Insurance Company was also “obvious when discovery is considered.” More specifically, the discovery on the UIM claim “should” be rather limited with respect to Allstate as opposed to the wider discovery that may be permitted in a bad faith claim.

Judge McLaughlin also concluded her Order by indicating that “[i]n addition, it may be that the bad faith claim will become moot as the underlying case is litigated, or its focus may end up being Allstate’s conduct in the future.”

Based on this reasoning, the court granted Allstate’s motion to bifurcate and stay the bad faith claim in a post-Koken case.

Anyone desiring a copy of this detailed Order in the case of Moninghoff v. Tilet and Allstate Insurance Company may click this LINK.

I send thanks for the prevailing defense attorneys, Kristin H. Jones and Marshall Walthew of the Philadelphia office of Pepper Hamilton LLP for forwarding this decision to my attention.

Parameters of Deposition of a Claims Rep Addressed in a First Party Case


In his recent June 27, 2012 Orders of Court in the case of Mangan v. Erie Insurance Exchange, No. 2011-cv-6261 (C.P. Luz. Co. June 27, 2012 Lupas, J.), Luzerne County Court of Common Please Judge David W. Lupas addressed the issue of a claims representative’s deposition in a first party benefits case.

According to reports on this case, the Plaintiff sought to depose an Erie Insurance Exchange adjuster. When Erie Insurance refused, the Plaintiff filed a Motion to Compel. Erie Insurance responded with a Motion for a Protective Order.

In his Orders on the motion, Judge Lupas granted the Motion to Compel and denied the Motion for Protective Order, but not limited the areas of inquiry.

More specifically, the Court ruled that “the deposition may not inquire about [the claims adjuster’s] mental impressions, conclusions, or opinions respecting the value or merit of the claim, defenses, to the claim, or respecting the strategy or tactics in defense of the claims by Defendant.”

Anyone desiring a copy of these Orders may click this LINK.

I send thanks to attorney Ann O. Farias, Esquire of the O’Donnell Law Offices in Kingston, Pennsylvania for forwarding this Decision to my attention.

Tuesday, July 17, 2012

A Primer on Proper Venue


In his recent June 20, 2012 Opinion in the case of Rogers v. Thomas, No. 12-Civil-1464 (C.P. Lacka. Co. June 20, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the law of proper venue and provided a detailed analysis of nearly every issue parties may wish to consider when determining the proper venue for a particular personal injury litigation matter.

By way of background, this personal injury matter arose out of a shooting that occurred in the more conservative (for litigation purposes) Susquehanna County. Various issues were raised as to whether or not the various named Defendants resided in, or conducted business in, Lackawanna County.

When the Plaintiff filed this lawsuit in Lackawanna County, the Defendants filed Preliminary Objections raising, in part, the venue issue.

After a detailed analysis of the venue law found under Pa. R.C.P. 1006 and 2179, the shifting burdens of proof on the various issues presented, and the quality vs. quantity test for proper venue of corporate defendants, Judge Nealon granted the plaintiff additional time to conduct discovery to flesh out the issue of proper venue.

If you are faced with a venue questions, this is a great Opinion to secure a general overview of how the issue should be handled. Anyone desiring a copy of this Rogers v. Thomas Opinion by Judge Nealon may click this LINK.

Wednesday, July 11, 2012

Judge Nealon Addresses Carriers' Efforts to Subrogate Against a Plaintiff's Third Party Recovery


In his May 25, 2012 Opinion in the case of Housing and Redevelopment Insurance Exchange v. Michaels, No. 2011-Civil-6121 (C.P. Lacka. Co. May 25, 2012 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed issues that arose in a case where an insurer and a claims administrator, who had both paid medical expense benefits to a police officer injured in a motor vehicle accident, filed against the officer seeking to recover subrogation liens and claims against the officer’s third party settlement with the negligent motorist.

The injured police office filed Preliminary Objections seeking to dismiss the subrogation claims for benefits paid under the Worker’s Compensation Act on the grounds that the Court of Common Pleas lacked jurisdiction to decide workers’ compensation liens. The officer also filed a demurrer to any subrogation claim based upon the Heart and Lung Act since that lien was allegedly barred by §1720 of the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. §1720. The Defendant police officer also asserted that carriers' Complaint required more specificity with regards to the exact amount of the lien being claimed.

Judge Nealon ruled that the Court of Common Pleas courts do indeed retain jurisdiction to resolve subrogation lien disputes involving the injured party and the Workers’ Compensation Act and other state laws. The Court ruled that since the subrogation controversy revolved the construction of 75 Pa. C.S. §1720 as it related to the Workers’ Compensation Act (and in particular 77 P.S. §671), the Court held that it retained jurisdiction to decide this matter.

Judge Nealon also ruled that the police officer’s demurrer to the carrier’s subrogation claim for Heart and Lung payments should be sustained since §1720 did not grant to the municipal employer’s insurer a subrogation lien against the tort officer’s recovery in this context.

The Court did deny the Defendant police officer’s request for a more specific Complaint in that the Complaint adequately notified the police officer of the claims against which he must defend. With regards to the apparently unspecified gross amounts of any subrogation lien claimed for workers’ compensation benefits, Judge Nealon noted that there was a statutorily mandated method governing the computation of such subrogation interests. Judge Nealon found that more specific information in this regard could be ascertained during the course of discovery.

Anyone desiring a copy of Judge Nealon’s detailed Opinion in the case of Housing and Redeveloping Insurance Exchange vs. Michaels may click this link.

Reappointed as Co-Chairperson of PDI Auto Law Committee



I was informed by the Pennsylvania Defense Institute (PDI) today that I have been reappointed for another year as Co-Chairperson of the PDI's Auto Law Committee.  In that capacity, I look forward to working with the Committee members in preparing Auto Law-related CLE programs, articles, blog posts, and networking events over the next year.

If you are a PDI member and would like to join the Auto Law Committee, please email the Executive Director of the PDI, David Cole at coled01@padefense.org to sign up.  Joining the Auto Law Committee is a great way to meet and network with others in the field, both on the legal side and the insurance industry side.

If you are not a PDI member and wish to become a PDI member (and also join the Auto Law Committee), you can also contact the Executive Director, David Cole, at the above email address or go to this link to the PDI website to join.

Monday, July 9, 2012

SAVE THE DATE - REGISTER NOW TO SAVE YOUR SPOT - CLE WITH THE PHILLIES - AUGUST 30TH


Registration is still open for the PBI "CLE with the Phillies" seminar that I will be presenting on Thursday, August 30, 2012 at Citizens Bank Park in Philadelphia before the Phillies vs. Mets game day game.

Check-in time for the seminar is 11 a.m.  The seminar is from 11:30 a.m. to 12:30 p.m.  Game time is 1:05 p.m.

I have been told that these CLE seminars, which allow up to about 95 attendees, "sell out" quickly and this one is expected to as well.  Consider joining this a day out of the office and at the ballpark as a nice way to end the summer and pick up a CLE credit.  Hopefully, the Phillies will be back to their winning ways by then.

I will be providing a Civil Litigation Update as well as presenting my article, "Take Me Out to the Ballgame: Little League Tips for Big League Lawyers."

To register for this August 30, 2012 CLE at Citizens Bank Park. visit http://www.pbi.org/ and type 7376 in the "Search Our Entire Catalog" box and hit enter--then follow instructions on the page you are taken to in order to complete the registration.  Your ticket to the game is included in the price.

Note that parking is not included and CLE coupons may not be used for these Ballpark CLE seminars.

Hope to see you there to root for the

Federal Middle District Judge Jones Says Restatement (Second) Still Law in Pennsylvania

In his decision last week in the products liability case of Sikkelee v. Precision Airmotive Corp., No. 4:07-cv-0086 (M.D.Pa. July 3, 2012, Jones, J.), Federal Middle District Judge John E. Jones, III reviewed a variety of decisions on Pennsylvania products liability law and concluded that the Restatement (Second) of Torts still governs as opposed to the Restatement (Third) of Torts.

Judge John E. Jones, III
This case arises out of an airplane accident and came before the court at this time on motions for summary judgment.  Before deciding the case itself, Judge Jones needed to determine which Restatement of Torts to apply--the Restatement (Third) places a higher hurdle on a Plaintiff's burden of proof in that it requires the Plaintiff to show an element of intent on the part of the manufacturer.

Tort Talkers may recall that, in recent times, the Third Circuit Court of Appeals has predicted on at least two occasions that, if faced with the issue, the Pennsylvania Supreme Court would adopt the Restatement (Third) in the products liability context.  The Third Circuit most recently made this prediction in the Covell case, a summary of which can be reviewed here.

However, Judge Jones noted that, in recent Pennsylvania Supreme Court decisions such as the Beard v. Johnson & Johnson decision, that court had declined to adopt the Restatement (Third) of Torts.  A Tort Talk reference to the Beard decision can be viewed here.

Judge Jones held that while predictions by the Third Circuit Court of Appeals were binding upon his court absent an affirmative indication that the Pennsylvania Supreme Court would rule otherwise, he found that such an affirmative indication was seen in the Pennsylvania Supreme Court's decision in Beard where the court declined to adopt the Restatement (Third).  It was therefore Judge Jones' belief that the Pennsylvania Supreme Court has indicated that the Restatement (Second) remains the governing law of products liability cases in Pennsylvania.

Anyone wishing to review Judge Jones 38 paged Opinion in Sikkelee v. Precision Airmotive Corp. may click this LINK.


Source: "Restatement (Second) Still the Law in Pa., Federal Judge Says," by Saranac Hale Spencer of The Legal Intelligencer (July 9, 2012).

Thursday, July 5, 2012

Judge Wettick Rules on Facebook Discovery Issues



Allegheny County Court of Common Pleas Judge R. Stanton Wettick, a renowned expert on discovery issues, has handed down a July 3, 2012 decision denying Facebook discovery in the case of Trail v. Lesko, 2012 WL 2864004, No. GD-10-017249 (C.P. Alleg. Co. July 3, 2012 Wettick, J).


Judge Wettick
After providing a detailed review of the issue over a 22 paged Opinion, which includes a background on Facebook itself and a review of decisions from both within Pennsylvania and from outside jurisdictions, Judge Wettick ruled that both the Plaintiff's and the Defendant's motions to compel access to the other's Facebook pages would be denied in this motor vehicle accident litigation.


In this matter, the Defendant initially denied being a driver of a vehicle involved of the accident at the time of the accident.  The Plaintiff wanted access to the Defendant's Facebook postings around the time of the accident to seek information to confirm the Defendant's whereabouts at the time of the accident or to possibly uncover witnesses who could shed light on this issue.

In response, Judge Wettick noted that the Defendant had admitted in the filings of the case, more than once, that he was indeed the driver of the vehicle at the time of the accident.  Accordingly, the court found that the Plaintiff's request for access to the Defendant's Facebook pages should be denied in this regard.

The defense in this matter sought access to the Plaintiff's Facebook pages to seek out evidence related to the Plaintiff's claims of injury and impairment.  In support of their request, the defense provided the court with two photos from the Plaintiff's public Facebook pages which depicted the Plaintiff at a bar socializing and drinking at a party.

Judge Wettick noted that the Plaintiff did not allege that he was bedridden and found that the photos produced were not inconsistent with the Plaintiff's claims in this matter.

Judge Wettick denied the defense request for discovery of the private pages of the Paintiff's Facebook  profile and ultimately reasoned that, under Pa.R.C.P. 4011, such a request was unreasonably intrusive 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."  Trail at p. 20.


Anyone wishing to view this decision may click this LINK.

Anyone wishing to review the Tort Talk Facebook Discovery Scorecard can always scroll down the right hand column of the Tort Talk website (http://www.torttalk.com/) and click on the date under "Facebook Discovery Scorecard" to access that listing of the cases uncovered to date.  Note that when you go to that page and click on the case names, you will be linked to a copy of that Opinion.  Here is a shortcut link to that Scorecard--click HERE.

I send thanks to Pittsburgh Attorney Matt Rancunas for forwarding this decision to my attention.

Tuesday, July 3, 2012

Happy 4th of July

For your reading enjoyment on the 4th, here is the text of the Declaration of Independence, which was signed 236 years ago:


John Trumbell's "Declaration of Independence, July 4, 1776"


IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.


We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

--------------------------------------------------------------------------------

The 56 signatures on the Declaration appear in the positions indicated:


Column 1

Georgia:

Button Gwinnett

Lyman Hall

George Walton



Column 2

North Carolina:


William Hooper

Joseph Hewes

John Penn

South Carolina:

Edward Rutledge

Thomas Heyward, Jr.

Thomas Lynch, Jr.

Arthur Middleton



Column 3

Massachusetts:

John Hancock

Maryland:

Samuel Chase

William Paca

Thomas Stone

Charles Carroll of Carrollton

Virginia:


George Wythe

Richard Henry Lee

Thomas Jefferson

Benjamin Harrison

Thomas Nelson, Jr.

Francis Lightfoot Lee

Carter Braxton



Column 4

Pennsylvania:


Robert Morris

Benjamin Rush

Benjamin Franklin

John Morton

George Clymer

James Smith

George Taylor

James Wilson

George Ross

Delaware:

Caesar Rodney

George Read

Thomas McKean



Column 5

New York:

William Floyd

Philip Livingston

Francis Lewis

Lewis Morris

New Jersey:

Richard Stockton

John Witherspoon

Francis Hopkinson

John Hart

Abraham Clark



Column 6


New Hampshire:

Josiah Bartlett

William Whipple

Massachusetts:

Samuel Adams

John Adams

Robert Treat Paine

Elbridge Gerry

Rhode Island:

Stephen Hopkins

William Ellery

Connecticut:

Roger Sherman

Samuel Huntington

William Williams

Oliver Wolcott

New Hampshire:

Matthew Thornton



Source of text:  http://www.archives.gov/exhibits/charters/declaration_transcript.html

Source of image:  http://www.ushistory.org/




Judge Gelb of Luzerne County Addresses Parameters of Expert Discovery

In her recent Opinion in the case of Mangan v. Erie Insurance Exchange, No. 2011-Civil-06261 (C.P. Luz. Co. June 5, 2012 Gelb, J.), Judge Lesa Gelb of the Luzerne County Court of Common Pleas reviewed discovery issues in the context of a first party benefits litigation pursued by the Plaintiff against Erie Insurance Exchange.

Judge Lesa Gelb
Luzerne County
During the course of that litigation, the Plaintiff served Interrogatories addressed to Erie Insurance concerning the professional activities of a Dr. Roger Caine and a Dr. Mark Cavallo, peer review chiropractors retained by Erie Insurance. In these Expert Interrogatories, the Plaintiff sought information regarding the litigation-related activities of these medical providers over a three (3) year period.

Erie Insurance objected on the grounds that the Interrogatories exceeded the scope permitted by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006). More specifically, Erie Insurance asserted that the Plaintiff had not established a requisite threshold showing to establish “cause” with respect to the expert discovery desired, i.e., a showing of “reasonable grounds” to believe that the expert witness may have entered the “professional witness” category.

After a thorough analysis, including a review of the specific expert Interrogatories request, Judge Gelb concluded that the Plaintiffs “are entitled to inquire into the issues of potential favoritism and whether Drs. Caine and Cavallo entered the professional witness category.”

Judge Gelb went on to direct Erie to answer four (4) of the eight (8) Interrogatories at issue in order to determine whether those doctors “fall into the professional witness category as defined by the Cooper case.” Judge Gelb further ruled that, should the Defendant’s witnesses fall into the professional witness category as defined in the Cooper case based upon the Interrogatories that are required to be answered, the Plaintiff could, thereafter, send supplemental expert discovery in conformity with the Cooper Opinion.

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

Recovery Against Negligent Third Parties For Suicide Not Recognized in Pennsylvania (Absent Special Duty)


In his recent July 2, 2012 decision in the case of Ferris v. Cleaveland, No. 3:10-1302 (M.D.Pa July 2, 2012 Mannion, M.J.), Federal Middle District Court Judge Malachy E. Mannion addressed the law of causation and negligence of third parties in terms of injuries sustained by an alleged suicide attempts.

The Ferris case stems from a pedestrian/motor vehicle accident where the plaintiff was alleging a left knee injury. During discovery, the plaintiff allegedly attempted suicide. As a result of his suicide attempt, the plaintiff allegedly suffered an anoxic encephalopathy, which left him with severe cognitive injuries.

The plaintiffs, through their neuropsychological expert, claimed that the suicide attempt was a result of the injuries sustained and stressors placed upon the Plaintiff as a result of the pedestrian/motor vehicle accident.
 
The defendant filed a Motion in Limine to preclude the claims for mental and cognitive injury that occurred as a result of the suicide attempt.
 
Federal Magistrate Judge Mannion granted the motion holding that absent a special duty (generally related to mental health professionals and employers) recovery against negligent third parties for suicide is not recognized in Pennsylvania.
 
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
 
I send thanks to the prevailing defense attorneys Seth Black, Esq. and Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for forwarding this interesting decision in the Ferris case to my attention.