Monday, October 29, 2012

Separate Rulings For Separate Injuries in Single Lawrence County Limited Tort Case

Summary Judgment in favor of a Defendant was recently denied in part and granted in part in the Lawrence County Limited Tort case of Dengler v. Marsh, PICS Case No. 12-1964 (C.P. Lawrence Co. Oct. 3, 2012 Motto, P.J.).

The Plaintiff in this matter was involved in a motor vehicle accident during which her vehicle was allegedly hit from the rear and caused to strike a vehicle ahead. During the course of the accident, the Plaintiff allegedly hit her forehead on the rear view mirror and was bleeding from a 3 cm abrasion. The Plaintiff was able to exit the vehicle under her own power.

About four hours after the accident, the Plaintiff reported to the emergency room where she complained of the abrasion to her forehead and neck and shoulder pain. An x-ray was negative for any cervical fracture. The Plaintiff was treated and released.

Thereafter, the Plaintiff began to experience neck and back pain. A CT scan of the Plaintiff’s back noted an old healed fracture at the level of L5 in her low back.

However, at a family doctor visit about six (6) weeks after the accident, the Plaintiff did not indicate that she was suffering any neck or back pain. At that visit, the Plaintiff’s primary physician noted that the Plaintiff appeared to be healthy and with no signs of any acute distress.

The Plaintiff, who was covered by the Limited Tort option at the time of the accident, eventually brought suit alleging serious injuries to her forehead, neck, and back. The Defendant eventually moved for summary judgment on the Limited Tort defense.

In response to the Defendant’s Motion, the Plaintiff produced an expert report from a chiropractor. The Plaintiff also offered up her own testimony that, when she performed household chores, her pain level increased. She also complained that, whenever she stood or walked for any length of time, she would be required to sit down due to her pain.

The Plaintiff’s chiropractor offered an opinion that the Plaintiff had a loss of body impairment to the extent that the Plaintiff was not able to perform all of her daily activities, such as cleaning or walking any distance, without suffering from increasing pain in her low back.

Based upon the record before the Court, President Judge Motto concluded that reasonable minds could differ on the question of whether or not the Plaintiff sustained a “serous injury” as that term is defined under the MVFRL. As such, the Court denied Defendant’s Motion for Summary Judgment with regard to the Plaintiff’s complaints of neck and back pain.

However, the Court separately considered the Plaintiff’s claim of a disfigurement and found that the Plaintiff had failed to demonstrate that she suffered a permanent serious disfigurement as a result of the 3 cm abrasion to her forehead so as to breach the Limited Tort threshold with respect to that particular injury. While the court acknowledge the presence of a scar in the form of a barely visible pale line on the Plaintiff's forehead, the scar was barely visible and could be covered by the Plaintiff wearing her hair down over her forehead.

Accordingly, after citing the case of Walsh v. Phillips, 38 Pa.D.&C.4th 178 (1997) as support, Judge Motto granted the Defendant’s Motion for Summary Judgment with respect to the disfigurement claim.

Anyone desiring a copy of this Opinion may click this LINK.

Thursday, October 25, 2012

Montour County Post-Koken Decision On Consolidation vs. Severance of Claims

In his recent October 10, 2012 decision in the case of Slaterbeck v. Sutsko and Erie Insurance, No. 237-CV-2012 (C.P. Montour Co. Oct. 12, 2012 Norton, J.), Judge Gary E. Norton of the Montour County Court of Common Pleas issued a decision in which he overruled the Preliminary Objections of the UIM carrier, Erie Insurance Company, to the joinder of actions in this post-Koken case.  As such, Montour County falls under the list of counties in favor of the consolidation claims, at least during the course of discovery.

In his decision, Judge Norton expounded on the Rule 411 evidence issue as well.   After finding that consolidation was favored due to policy considerations in terms of judicial economy, the avoidance of multiple lawsuits, and concerns regarding possible inconsistent verdicts, Judge Norton also stated that “Pa. R.E. 411, which otherwise precludes introduction of evidence regarding liability insurance, is not applicable since UM and UIM coverage does not involve third party “liability” insurance of the Defendant/alleged tortfeasor.”   Judge Norton further believed that the “[p]olicy considerations underlying the prohibition in Pa. R.E. 411 are not applicable” in post-Koken cases.

However, in this Slaterbeck decision, the court also separately upheld Erie Insurance’s forum selection clause and ordered that the case be transferred to Clinton County in light of the language of that clause which required the case to be brought in the county of the insured’s domicile at the time of the accident.  

As such, the court ultimately severed the Plaintiff’s UM/UIM claims against Defendant Erie and transferred those claims to the Clinton County Court of Common Pleas with the cost and fees related to the transfer and removal of the record to be paid by the Plaintiff pursuant to Pa. R.C.P.  1006(a).  

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

I send thanks to Attorney Lee Albright, Esquire of the Scranton, Pennsylvania Pisanchyn Law Firm for bringing this decision to my attention.

 

Judge Nealon Addresses Rule 213(a) Motion for Joint Trial

In his recent October 1, 2012 Opinion in the case of Fraynert v. Delaware and Hudson Railway Co., Inc., No. 2005-CV-1822 (C.P. Lacka. Co. Oct. 1, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiffs’ Motion for a Joint Trial in a case involving eight (8) retired railroad workers who sued their former employer under the Federal Employer’s Liability Act (FELA) for pulmonary damage allegedly caused by negligent exposure to coal dust and diesel fumes. The Plaintiffs filed the Motion for Joint Trial under Pa. R.C.P. 213(a).

Judge Terrence R. Nealon
In his Opinion, Judge Nealon provides a thorough analysis of the test to be applied in deciding a Motion for a joint trial filed under Pa. R.C.P. 213(a).

In this matter, the court noted that the Plaintiffs sought to recover non-economic damages under the same federal statute and represented that they would present, and oppose, expert testimony from the same two medical witnesses. It was also noted that many of the Plaintiffs worked at common locations and performed identical job tasks and, as such, would offer comparable testimony regarding their working conditions and exposure to coal dust and diesel fumes at those sites.

Accordingly, the court held that the eight (8) FELA cases involved common questions of law and fact that warranted the joinder of the cases for trial.

Judge Nealon also found that the considerations of judicial economy supported the consolidation for trial as a joint trial would require only one jury and would consume 8-10 days of trial while separate trials would necessitate eight juries and 24-32 trial days.

Due to the common issues of law and fact in these separate matters, the cost savings resulting from a joint trial, and due to the lack of any prejudice from such a consolidation, the court granted the Plaintiffs’ Motion for a Joint Trial pursuant to Pa. R.C.P. 213(a).

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

Wednesday, October 24, 2012

Pennsylvania Supreme Court Allows for Electronic Filing of Appellate Documents

Here is a link to the Pennsylvania Supreme Court Order issued on October 24, 2012 allowing for the electronic filing of appellate documents as of November 1, 2012:

 
It appears from the Order that the electronic filing of documents in the Pennsylvania appellate courts is currently permissive and not mandated.  The Order indicates that, after a trial period, there may be an amendment to the Pennsylvania Rules of Appellate Procedure for more specific procedures with respect to these types of filings.

Tuesday, October 23, 2012

Lehigh County Court of Common Pleas Rejects Ostensible Agency Claim Filed Against Nursing Home

In a recent decision in the case of Pittas v. Healthcare & Retirement Corporation of America, PICS Case No. 12-1801 (C.P. Lehigh Co. July 31, 2012 Johnson, J.), the Lehigh County Court of Common Pleas held that, while a Plaintiff may proceed with her claim of vicarious liability based upon a theory of actual agency against a defendant nursing facility, her cause of action grounded in ostensible agency fails as such a claim is limited only to actions against hospitals. The court ultimately granted the Defendant’s Motion to Dismiss in part and denied it in part.

In his opinion, Judge Johnson cited the MCARE Act at §516 as “codifying the cause of action for ostensible liability against hospitals.” The court pointed out that while the MCARE Act generally applies to nursing homes, there are separate definitions for different healthcare providers. The judge ultimately concluded that, based upon his review of the case before him, along with the applicable law, there is no cause of action for ostensible agency against a nursing home.

I send thanks for Attorney Andrew L. Braunfeld of the Conshohocken, Pennsylvania law firm of Masterson Braunfeld, for bringing this case to my attention along with his analysis of the same.

A copy of this case may be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and providing the PICS Number noted above.

Another Recent Defense Verdict

Here is an excerpt of an October 23, 2012 Pennsylvania Law Weekly write-up by Ben Present on a recent defense verdict of mine secured earlier this month in a Lackawanna County Court of Common Pleas motor vehicle accident matter:




Lackawanna County Courthouse

Jury Sides With Defendant in Disputed Collision

Eisbacher v. Davidson Defense Verdict

*******

Date of Verdict: October 5.

Court and Case No.: Lackawanna County Court of Common Pleas NO. 10-CV-3348.

Judge: Judge Robert A. Mazzoni.

Type of Action: Personal injury.

Injuries: Cervical sprain, lumbar sprain, and a left knee injury.

********

Defense Counsel: Daniel E. Cummins, Foley, Comerford & Cummins, Scranton, Pa.

Plaintiffs Experts:  Dr. Hans P. Olsen IV, orthopedic surgery, Wilkes-Barre, Pa.; Fran Terry, vocationalist, Clarks Summit, Pa.

Defense Experts: Dr. Thomas A. Allardyce, orthopedic surgery, Wilkes-Barre, Pa.; Dr. Jasen Walker, vocationalist, Valley Forge, Pa.

Comment: A Lackawanna County jury has sided with a defendant after both [an independent witness] and the woman suing him alleged the [Defendant] ran a red light in their Halloween collision four years ago.

Defense attorney Daniel E. Cummins said the case turned on several inconsistencies between plaintiff Jessica Eisbacher's deposition testimony and her statements to the jury. ********

*******

According to pretrial pleadings, Eisbacher v. Davidson was a "classic 'he said vs. she said' scenario."

According to the court filings, Eisbacher crashed into Davidson in the middle of an intersection in Scranton.

But during the four-day trial, Cummins said, he caught [the Plaintiff] giving several inconsistent statements, which the attorney thought turned the case. First, in her deposition testimony, Eisbacher said she didn't look both ways before she entered the intersection. In a pretrial mediation memorandum filed by Davidson, the defendant argued that because Eisbacher stated she looked straight ahead, she violated state law requiring drivers to be aware of their surroundings.

But "come trial time, she said, 'I looked both ways and didn't see anything,'" Cummins said.

At her deposition, Eisbacher said she was going 20 miles per hour, which Davidson questioned in pretrial court filings given the damage to each vehicle.

Eisbacher's attorney, Michael J. Pisanchyn Jr., was not available for comment.

Davidson was the chief financial officer of a local Goodwill Industries company at the time of accident, according to Cummins, and was driving back from making a bank deposit for work.

********

Eisbacher's insurer, Geico Indemnity Co., was a silent defendant, meaning the insurance company would not appear or be mentioned at trial. However, if the jury had sided with the plaintiff, she could possibly collect the [$15,000] in [UIM] limits for which her policy allowed.

Davidson's insurer, State Farm, offered to settle for $10,000.

According to a joint pretrial order, the plaintiff's case rested on the theory that it was Davidson, in fact, who blew the red light. Eisbacher said she had an independent eyewitness to back it up.

According to Cummins, he polled the jury in open court immediately before they were dismissed.

The jury was unanimous that Davidson was negligent and was 11-1 on whether the plaintiff was negligent, Cummins said.

However, on comparative negligence, the jury was 10-2 that the plaintiff shouldered 60 percent of the blame while Davidson held 40 percent.

Cummins said he spoke with one member of the jury after the verdict who said the crux of their debate was over negligence.

The jury was out for four-and-a-half hours.

Sunday, October 21, 2012

Eastern District Court Predicts Law On Statute of Limitations for Common Law Bad Faith Claim

In the case of Katzenmoyer v. Allstate, 2012 WL 3764998 (E.D. Pa. 2012), Judge Norma Shapiro of the Eastern District Federal Court of Pennsylvania issued an Opinion in which she predicted how Pennsylvania law would address the statute of limitations period in a common law bad faith action arising out of a motor vehicle accident.

According to the Opinion, the underlying facts involved an ATV accident in which the rider of the ATV was injured near the driver’s property. After the property owner’s home insurance company declined to settle with the injured driver for the $100,000.00 liability limits under the policy, a jury rendered a $1.5 million verdict against the property owner in the personal injury case brought by the ATV rider.

Thereafter, the property owner assigned all the claims he had against Allstate Insurance Company, the homeowner’s insurer, to the injured rider. The injured rider then brought a common law bad faith claim against Allstate for its refusal to settle with her in 2004.

In response, Allstate argued that the four (4) year statute of limitations began to run on the date they refused to settle. The injured party rider argued that the statute of limitations did not start until the jury returned its verdict in the personal injury case in 2009.

In her decision, Judge Shapiro stated that neither side presented an on-point, binding decision.

Judge Shapiro ultimately ruled that, "[a]lthough Pennsylvania law is unclear on this issue, it seems unlikely the Pennsylvania Supreme Court would adopt a rule requiring Plaintiffs to file bad-faith suits within four years of a failure to settle without an explicit, unambiguous denial of coverage.”

Judge Shapiro instead ruled that the limitations period would not begin to run until 2009 at which point the jury rendered its verdict in the underlying matter. The judge noted that, when Allstate refused to settle, it was still unclear as to whether Allstate had any duty at all. At that point in time, the insured property owner could not have maintained a suit against Allstate for bad faith in 2004 because the insured had not yet suffered any damages.

Anyone desiring a copy of this decision, may click this LINK.

Source: “Exposure to Damages Starts Limitations Clock in Common Law Bad-Faith Cases” by Saranac Hale Spencer of The Legal Intelligencer (September 11, 2012).

Friday, October 19, 2012

Regular Use Exclusion Upheld (Again)

In its October 18, 2012 decision in the case of Rother v. Erie Insurance Exchange, No. 1770 MDA 2011, 2012 Pa. Super. 228 (Pa. Super. Oct. 18, 2012 Bowes, Ott, and Straussburger, JJ.) (Opinion by Bowes, J.), the Pennsylvania Superior Court reversed the granting of summary judgment in favor of the Claimant and ordered the entry of summary judgment in favor of Erie Insurance Exchange in a declaratory judgment action involving the applicability of the regularly used, non-owned vehicle exclusion.

In this matter, the Plaintiff was injured in a motor vehicle accident at which time the Plaintiff resided with his mother. The vehicle in which the Plaintiff was located in at the time of the accident was owned by his father, who restricted the Plaintiff’s use of this vehicle only to work or emergency purposes. The Plaintiff had only begun to drive the vehicle to and from work a short period of time before the subject accident.

At the time the accident occurred, the Plaintiff was admittedly not driving to or from work. The Plaintiff claimed that he was on his way to help a friend. While on his way to help his friend, the Plaintiff was involved in the subject accident that was caused by an allegedly intoxicated driver.

The tortfeasor’s carrier tendered the policy limits under the liability policy. The Plaintiff then pursued a UIM claim against the Erie Insurance Exchange policy that was issued to the Plaintiff’s mother.

While Erie acknowledged that the Plaintiff was otherwise covered as a “resident relative” under his mother’s policy, Erie denied coverage pursuant to the “regular use” exclusion in the policy. That exclusion provided that coverage was inapplicable in the following circumstances:

“Bodily injury to…a resident using a non-owned motor vehicle…which is regularly used by [that] resident, but not insured for Uninsured or Underinsured Motorist Coverage under the policy.”

The essential question in this case was whether the Plaintiff was “regularly” using the subject vehicle in a way contemplated by the exclusion. The trial court judge had found that the Plaintiff’s position to use the subject vehicle was limited by his father such that there were genuine issues of material fact as to whether or not the Plaintiff was “regularly” using the vehicle so as to come within this “regular use” exclusion found in the policy.

On appeal, the Pennsylvania Superior Court disagreed. After thoroughly reviewing the law pertaining to the regular use exclusion, including the test for “regular use,” i.e., “whether the use is regular or habitual,” the court ruled that where both parties filed Motions for Summary Judgment and alleged that there no genuine issues of material fact, the coverage question was a question of law for the court to decide.

Erie argued that the Plaintiff’s use of his father’s vehicle to go to and from work constituted regular use even though the Plaintiff had only just begun to use the vehicle in this regard a short period of time before the subject accident.

Comparing the facts of this case with the facts of other regular use exclusion cases, the Superior Court noted that the Plaintiff did routinely and habitually use the vehicle within the scope of his father’s permission to go to and from work four days per week. Despite the use being restricted, the court still found the use to be regular within the meaning of the exclusion.

The Pennsylvania Superior Court further stated that the application of the regular use exclusion to these facts did not violate any public policy grounds. To the contrary, the regular use exclusion has been repeatedly upheld on policy grounds as that exclusion generally promotes the cost containment policy under the MVFRL.

Based upon the above rationale, the Pennsylvania Superior Court reversed the trial court’s decision and remanded the case for the entry of summary judgment in favor of Erie Insurance Exchange.

A copy of this case may be viewed HERE

Motion to Bifurcate Bad Faith Claim in Post-Koken Case Denied

In its recent decision in the case of Cracker v. State Farm Mut. Auto. Ins. Co., No. 11-0225, 2012 U.S. Dist. Lexis 109357 (W.D. Pa. Aug. 3, 2012 Lancaster, C.J.), Judge Gary L. Lancaster of the United States District Court for the Western District of Pennsylvania denied State Farm’s Motion In Limine to bifurcate a breach of contract and bad faith post-Koken lawsuit.

In this matter, State Farm asserted that bifurcation was appropriate because the issues to be decided on the UIM claim were entirely separate from the issues to be decided on the bad faith claim. State Farm also argued that a verdict in its favor on the UIM claim could render the bad faith claim moot.

The Claimant opposed the Motion by arguing that bifurcation would be ineffective in this case because the issues and evidence overlapped and because the UIM and bad faith claims were not dependent upon each other under Pennsylvania law.

After noting that the bifurcation of a trial is within the court’s broad discretion under the Federal Rules of Civil Procedure, and after outlining the factors to be utilized in determining whether such a motion should be granted, the court found that bifurcation of the trial was not appropriate in the case before it.

Judge Lancaster noted that the there was a considerable overlap in the issues presented in that essentially the only issue in dispute in the UIM claim was the valuation of the Claimant’s injuries, which issue was noted to be a central issue in the companion bad faith claim. The court also noted that the parties’ Pre-Trial Statements confirmed that many of the same witnesses would be required to testify in both phases of the trial.

As such, Judge Lancaster felt that it would be a waste of judicial resources and cause inconvenience to require those witnesses to testify twice in the same trial. The court also rejected State Farm’s argument that both parties will be prejudice if bifurcation is not granted as the testimony of the trial counsel may prove relevant in the bad faith claim. The court noted that both parties had the ability to use substitute trial counsel, if necessary.

Overall, the judge found that the potential prejudice to a party presented by this situation was outweighed by the court’s obligation to promote the expeditious resolution of the matter, i.e. the interest of judicial economy, particularly given the overlap of the issues and evidence. Based upon this rationale, the court denied State Farm’s Motion In Limine to Bifurcate the Trial.

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

I send thanks to Attorney James Albert of the West Pittston law firm of Cefalo & Associates for bringing this case to my attention.

Wednesday, October 17, 2012

Pa.R.C.P. 1042.72 Rescinded

Yesterday, October 17, 2012, the Pennsylvania Supreme Court issued an Order rescinding Pa.R.C.P. 1042.72, effective immediately.  That Rule of Civil Procedure was entitled "Medical Professional Liability Actions.  Motions for Post-Trial Relief.  Excessive Damage Award for Noneconomic Loss."

To read the Supreme Court's Order and see the rescinded Rule, click the following links:


Decision by Judge William Nealon Reviewed in New York Times Article

A decision by Judge William J. Nealon of the United States Federal District Court of the Middle District of Pennsylvania was recently reviewed in an October 16, 2012 New York Times article by Adam Liptak entitled "Time, Pen and Paper, And Now The Ear of the Supreme Court. 

The article outlines the path of a pro se prisoner's litigation that began with a handwritten petition that was denied by Judge Nealon, whose decision was affirmed by the Third Circuit, and which matter is now poised to be addressed by the United States Supreme Court.  The issue presented pertains to the parameters of exceptions to sovereign immunity.

Anyone wishing to review the article may click this LINK.

I send thanks to Attorney Brian Corcoran of Kingston, PA for bringing this case to my attention.

Monday, October 15, 2012

ARTICLE: Tort Reform and Judicial Selection: Where the 2012 Presidential Candidates Stand

The following article of mine appeared in last week's edition of The Pennsylvania Law Weekly and is reprinted here with permission.  All rights reserved.(c)

Tort Reform and Judicial Selection:
Where the 2012 Presidential Candidates Stand


by
Daniel E. Cummins

Pennsylvania Law Weekly
10-09-2012


With the presidential election set to take place November 6, one of the issues that has not been at the forefront of this election season is the issue of tort reform. As that issue may be important to some of the readers of this column, what follows is a review of the tort reform position advocated by the presidential candidates.

Although the issue of tort reform has traditionally focused on medical malpractice and health insurance issues, changes in those areas could obviously impact other areas of personal injury litigation. In fact, if tort reform is ever passed in its entirety, these changes could drastically impact the way the plaintiffs bar and the defense bar conduct business in civil litigation matters.

Another important issue for attorneys with respect to this presidential election is each candidate's criteria for the potential selection of future members of the U.S. Supreme Court and the federal bench.

Legal Background of the Candidates

Some voters may base their votes, in part, upon the extent of the legal background of the candidates for president.

In that regard, President Barack Obama completed his magna cum laude J.D. degree at Harvard Law School in 1991. According to his biography as contained on his campaign website, following law school, Obama worked as an associate attorney for a Chicago law firm and focused on discrimination claims and voting rights cases. He was also a lecturer of constitutional law at the University of Chicago Law School before leaving the practice of law altogether to focus on his political career.

Republican candidate Mitt Romney has a law degree as well. In his campaign, he has portrayed himself as more of a businessman than a lawyer. According to the biography materials on the Romney campaign website, Romney earned a bachelor of arts degree from Brigham Young University in 1971. In 1975, Romney obtained a joint J.D. and master's of business administration degrees from Harvard University. From Romney's biography, it appears that he then went on to spend a career in the business sector and did not practice law.

The Candidates on Tort Reform

Generally speaking, opinions regarding caps on personal injury damages are split along party lines, with the Republicans usually favoring them and the Democrats generally voting against arbitrary caps on damage awards and other limitations on access to the courts.

Romney has come out publicly in favor of national tort reform. He was recently quoted in the press as saying, "Another burden on our economic future is our out-of-control tort system. Last year, U.S. health care corporations spent more money on tort claims then they did on R&D. If innovation is the key to our long-term leadership, then some tort lawyers are cashing out our country's future."

"I spoke with one member of the plaintiffs bar the other day," Romney was quoted as saying. "He said that the tort lawyers are OK with state reform, but not national reform. You know what state level tort reform means — it means that as long as there is one lawsuit-friendly state, they can sue almost any major, deep-pocket company in America. No thanks. America needs national tort reform."

According to research, from his 1994 Senate race through his campaign for governor of Massachusetts in 2002, as well as throughout his four years as the governor of Massachusetts, Mitt Romney was a strong proponent of tort reform. As governor, he supported proposed legislation for capping personal injury claims in automobile-related cases. Romney also advocated for overhauling Massachusetts' medical malpractice system.

During his campaign for governor, Romney also supported capping punitive damages. In 2003, Romney supported a bill to cap non-economic awards at $500,000. In May 2006, the Romney administration in Massachusetts also issued a tort reform proposal that called for the closing of any loopholes in the $500,000 cap on non-economic damages in Massachusetts.

In contrast to the general position of the Republican party, rather than capping jury awards, the Democrats generally favor efforts to reduce medical errors and steps to increase the reporting of errors as ways to cut the overall number of medical malpractice cases.

As president, Obama has repeatedly confirmed that he is not willing to consider the capping of medical malpractice judgments, a tort reform proposal consistently put forward by Republicans. Some of the alternatives to caps on limits that Obama has suggested he may be willing to consider include having medical experts review malpractice suits before they go to court to ensure that the case meets some threshold of credibility. Obama has also suggested that he may consider, when appropriate, some form of mediation or arbitration in place of lawsuits.

In a 60 Minutes interview, the president conceded that the Democrats and Republicans may not be able to reach an agreement on the specific idea of capping damages. In that regard, Obama stated, "I think there's also been philosophical issues and differences about whether or not patients who really have been subject to negligence, whether it's fair to just say to them, 'You know what? You can only get a certain amount no matter how egregious it is.' So there's been a philosophical difference within the parties."

More recently, while still stopping short of supporting federal caps on damages awards, in his 2011 State of the Union Address, the president said he would be open to "medical malpractice reform to rein in frivolous lawsuits." Based on his prior statements on the issue, it would appear that Obama and the Democrats would not be willing to go as far on the issue of tort reform as desired by the Republicans or Romney.

The Candidates on Selection of Federal Judges

Another consideration in this ?presidential election campaign could ?be the future makeup of the U.S. Supreme Court and the rest of the federal judiciary.

In terms of the Supreme Court, Justice Ruth Bader Ginsburg is 79 years ?old and dealing with health issues, Justice Antonin Scalia is 76 years old, Justice Anthony Kennedy is 76 years ?old and Stephen G. Breyer is 74 years old.

According to reports on the presidential candidates' positions in this regard, Romney has stated he would appoint judges to the Supreme Court and the federal judiciary who strictly follow the constitution and do not make laws from the bench. Romney has asserted he would support judges having philosophies similar to that of Chief Justice John G. Roberts, Justice Samuel A. Alito or Scalia. Romney is on record as having opposed the nomination of Justice Sonia Sotomayor to the Supreme Court.

Sotomayor was nominated to the Supreme Court by Obama during his term as president. Obama also selected solicitor general Elena Kagan to replace Justice John Paul Stevens.

According to his views, Obama seeks the qualities of a high intellect, an appreciation of the limited role of the judiciary and "an understanding of how the world works and how ordinary people live" in judicial appointees.

As such, it is clear that justices nominated by Obama or Romney would have much different ideas of the Supreme Court's role in construing and interpreting the law. As such, it is readily apparent that the future makeup and the philosophy of the Supreme Court as well as the federal bench across the land will be directly impacted by which candidate makes it into the White House in the next election.

Be Heard With Your Vote

Whatever one's politics may be, the most important thing is to get out and exercise your constitutionally protected right to vote. The Democratic and Republican candidates have strong and divergent views on the issues of tort reform and the makeup of the federal bench. If Pennsylvania litigators wish to be heard on these matters and have any say on the future of civil litigation practice as we know it, all it takes is a quick visit to the voting booth on Election Day. •


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 www.torttalk.com.

Source of image:  www.miamiagentmagazine.com.

Thursday, October 11, 2012

SAVE THE DATE - NOVEMBER 14th - PDI/NEPATLA CLE SEMINAR AND HOLIDAY HAPPY HOUR

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Civil Litigation Developments 2012


 
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Wednesday, November 14, 2012


 
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Thomas, Thomas & Hafer


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Dougherty, Leventhal & Price



2:00 – 2:45 PM “The Truth About IME’s: An IME Demonstration”

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Thomas, Thomas & Hafer


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3:00 – 3:45 PM “Expert Communication after Shoffstal and Barrick”

Cindy Serge, Esquire

Stephanie Hersperger, Esquire
Thomas, Thomas & Hafer



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4:00 – 5:00 PM “Ethics Hour” Panel

Michael A. Genello, Esquire, Moderator
Murphy, Piazza & Genello


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Honorable Robert A. Mazzoni

Honorable Malachy E. Mannion



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Tuesday, October 9, 2012

Judge Nealon on Test for Consolidation of Actions

In his recent October 1, 2012 Opinion in the case of Fraynert v. Delaware and Hudson Railway Co., Inc., No. 2005-CV-1822 (C.P. Lacka. Co. Oct. 1, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiffs’ Motion for a Joint Trial in a case involving eight (8) retired railroad workers who sued their former employer under the Federal Employer’s Liability Act (FELA) for pulmonary damage allegedly caused by negligent exposure to coal dust and diesel fumes. The Plaintiffs filed the Motion for Joint Trial under Pa. R.C.P. 213(a). 
Judge Terrence R. Nealon
Lackawanna County

 In his Opinion, Judge Nealon provides a thorough analysis of the test to be applied in deciding a Motion for a joint trial filed under Pa. R.C.P. 213(a).

In this matter, the court noted that the Plaintiffs sought to recover non-economic damages under the same federal statute and represented that they would present, and oppose, expert testimony from the same two medical witnesses. It was also noted that many of the Plaintiffs worked at common locations and performed identical job tasks and, as such, would offer comparable testimony regarding their working conditions and exposure to coal dust and diesel fumes at those sites. Accordingly, the court held that the eight (8) FELA cases involved common questions of law and fact that warranted the joinder of the cases for trial.

Judge Nealon also found that the considerations of judicial economy supported the consolidation for trial as a joint trial would require only one jury and would consume 8-10 days of trial while separate trials would necessitate eight juries and 24-32 trial days.

Due to the common issues of law and fact in these separate matters, the costs savings resulting from a joint trial, and due to the lack of any prejudice from such a consolidation, the court granted the Plaintiffs’ Motion for a Joint Trial pursuant to Pa. R.C.P. 213(a).

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

Recent Favorable Trial Result

I recently secured a defense verdict last month in a limited tort auto accident case.  What follows is a synopsis:


Name of Case: James Yuelling and Deborah Yuelling, his wife v. John Cessaro


Trial Verdict: Trial Verdict


Result:  Defense verdict on limited tort issue; jury awards Plaintiff $3,781.87 in medical expenses


Date: September 11, 2012


Defense Attorney: Daniel E. Cummins, Foley, Comerford & Cummins, Scranton, PA



Court/Docket No: Luzerne County Court of Common Pleas/7819-Civil-2009


Judge: Judge Michael T. Vough


Plaintiff’s Experts: Dr. Joseph Diana, Chiropractor, Hazleton, PA


Defense Expert: Dr. Thomas A. Allardyce, orthopedic surgeon, Wilkes-Barre, PA


This matter involved a motor vehicle accident that occurred on May 22, 2007 in Hazleton, Luzerne County, Pennsylvania.

At trial, the defense admitted liability and also admitted that the Plaintiff sustained a left elbow contusion, and soft tissue sprain injuries to his neck and low back.

There was no dispute between the parties that the Plaintiff was covered by the Limited Tort option at the time of the subject accident. As such, although the Plaintiff was entitled to economic damages that were proven to be related to the accident, the defense argued that the Plaintiff failed to prove that he had sustained a serious injury to allow the Plaintiff to pierce the Limited Tort threshold and recover noneconomic damages.

The Plaintiff alleged that, as a result of the accident, he sustained injuries to his neck and upper back along with symptoms into his arms and hands. He also alleged an increase in his pre-existing, long-standing low back condition. Also noted were complaints of ongoing, periodic headaches. The Plaintiff additionally claimed that he had glass in his eye following the accident that was removed without any significant ongoing residuals.

The defense offered evidence that the Plaintiff had ongoing complaints and was totally disabled with respect to his pre-existing conditions in the years leading up to the time of the subject accident.

With the Plaintiff’s limited tort status requiring the Plaintiff to prove a serious injury in order to recover non-economic damages, the defense brought forth evidence confirming that, as a result of the accident, the Plaintiff was able to exit his vehicle and walk around the scene. It was confirmed that the Plaintiff did not have any loss of consciousness and was not bleeding other than from a minor cut from shattered glass.

It was additionally established by the defense at trial that the Plaintiff’s initial treatment following his emergency room visit for his allegedly serious injuries was only with his family doctor and his chiropractor. The Plaintiff treated with his chiropractor for approximately six months after the accident before stopping treatment. Thereafter, he continued to see his family doctor periodically during the year of the accident. In the following year, the Plaintiff had a few, sporadic visits with an orthopedic surgeon for complaints of shoulder pain.

The defense submitted the expert report of an orthopedic surgeon, who concluded that, based upon his review of the records and his examination of the Plaintiff, that the Plaintiff sustained a left elbow contusion, a cervical sprain injury, and a lumbar sprain injury. It was the defense expert’s further conclusion that these types of injuries were not serious and which typically lasted over a 12 week course.

After deliberating for approximately three hours, the jury returned a defense verdict on the Limited Tort issue by finding that the Plaintiff had not sustained a serious injury. That finding precluded any recovery by the Plaintiff for non-economic damages such as pain and suffering, embarrassment, humiliation, and loss of enjoyment of life’s pleasures, and loss of consortium. The jury did award the Plaintiff’s claimed medical expenses of $3,781.17.

[Past results are no guarantee of future results and each case must be handled on its own merits.]

Monday, October 8, 2012

William A. Schnader Print Media Award for Excellence in Legal Writing




I just received notification that I have been awarded a Second Place award in the 2012 Schnader Print Media Awards Competition in the Weekly Newspapers category for my article, “Call Me from the Road” which appeared in the Pennsylvania Law Weekly

The awards honor journalistic excellence in news or feature reporting on the legal system and its operations. This annual legal writing competition is sponsored by the Pennsylvania Bar Association and the national law firm of Schnader Harrison Segal & Lewis, LLP.

This is my seventh Schnader Print Media Award over the past six years.

I thank the Pennsylvania Law Weekly for allowing me to write for them and put my Villanova University English Degree, as well as my Dickinson School of Law legal writing and analysis skills, to good use.


Here is a LINK to the article "Call Me From the Road," which provides an update, as of July of 2011when the article was published, on the status of Pennsylvania law and civil litigation on legislative bans against cell phone use while driving.

Source of image of figure at computer: http://www.freedigitalphotos.net/images/view_photog.php?photogid=1152

Thursday, October 4, 2012

Open and Obvious Condition Results in Summary Judgment


Judge David J. Williamson of the Monroe County Court of Common Pleas recently entered summary judgment in favor of the Defendant in the slip and fall case of Antolik v. Camelback Ski Corp., Inc., PICS Case No. 12-1717 (C.P. Monroe Co. July 23, 2012 Williamson J.).  
 
In this matter, the Plaintiff visited the Camelback Ski Corp., Inc.’s Camelbeach Water Park.   Before leaving for the day, the Plaintiff went to the women’s locker room to change into dry clothing. 
 
As the Plaintiff entered the locker room, she admittedly observed a wet floor sign.   At that time, a group of people began to pass the Plaintiff on their way out of the locker room.   While getting out of the way of that group of people, the Plaintiff stepped to her right and into a puddle of water that was about two inches deep and slipped and fell.  The Plaintiff sued the Defendant which, during the course of the litigation, moved for summary judgment.  
 
Judge Williamson noted that, under Pennsylvania law, a possessor of land does not owe a duty of care to a business invitee when the allegedly dangerous and hazardous condition is known and obvious and the invitee voluntarily continues on despite the presence of the conditions.  
 
Judge Williamson further noted that, in the case of Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), the Pennsylvania Supreme Court adopted §343A of the Restatement (Second) of Torts and held that a Defendant who would ordinarily have a duty of care will be released from duty when an individual undertakes a known risk.  
 
In this Antolik case, the court further stated that, although the question of whether a condition is known or obvious is typically an issue to be left for a jury, that question may be decided by the court where reasonable minds could not differ on the conclusion.  
 
Judge Williamson stated that, according to the record before him, the Plaintiff admitted that, when she saw the wet floor sign, she admittedly anticipated the presence of water in the immediate vicinity. 
 
Accordingly, the court found that no reasonable minds could differ that the water on the floor was not only a known condition, but also an obvious condition.  Accordingly, the court found that the Defendant did not have a duty to protect the Plaintiff from the dangerous condition and the Plaintiff was unable to establish negligence on the part of the Defendant.   As such, the defense Motion for Summary Judgment was granted.  
 
Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427.
 
 
Source:  Case Digests, Pennsylvania Law Weekly (September 25, 2012)
 
Source of photowww.thedistractionnetwork.com (not the image of the subject accident)
 

Tuesday, October 2, 2012

Regular Use Exclusion Upheld (Again)

In its September 25, 2012 decision in the case of Adamitis v. Erie Insurance Exchange, No. 893 EDA 2010 (Pa. Super. Sept. 25, 2012 Stevens, P.J., Lazarus, J. and Colville, J.) (Opinion by Stevens, P.J.), the Pennsylvania Superior Court again affirmed the validity and enforceability of the regular use exclusion in an underinsured motorist coverage benefits case involving alleged injuries sustained by the Claimant while driving at work. 

The Superior Court took this appeal from an agreed upon non-jury trial in Philadelphia County.   At the trial court level, the trial court judge entered a judgment order in favor of Erie and against the injured party insured.  

By way of background, this matter arises out of a motor vehicle accident that occurred on October 7, 2005.   At that time, the Claimant was working as a bus driver.  While working in the course and scope of his employment, the Plaintiff was involved in a motor vehicle accident with an allegedly underinsured motorist.  

After resolving his claims against the underinsured tortfeasor motorist, the Claimant sought UIM coverage from Erie.   At the trial court level, the Plaintiff testified that, when his UIM claim was rejected by Erie, that was the first time he knew or became aware of the regular use exclusion clause.

The Claimant previously had a UM/UIM policy with another carrier under his originally purchased policy in 2001.  It was agreed between the parties, however, that the subject Erie Insurance policy that was in effect on the date of the accident did contain the regular use exclusion clause. 

Under that clause, it was stated that Erie need not provide UM/UIM coverage “for bodily injury to you or a resident arising from the use of a ‘non-owned motor vehicle or a non-owned miscellaneous vehicle which is regularly used by you or a resident, but not insured for Uninsured or Underinsured Motorists Coverage under the policy.’”  

The Claimant alleged that he never received Erie’s notice with regards to the addition of that exclusion to the policy.   Erie offered evidence in support of its claim that the provision of notice documents to its Erie customers is an automated, computer-driven process.   Based upon the testimony of the Erie Insurance witness, the court found that the Claimant did indeed receive the notice of the addition of the regular use exclusion to the Erie policy.

Accordingly, applying the language of the regular use exclusion to the facts of the case, the Superior Court upheld the trial court’s decision in favor of Erie Insurance.  

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

 I send thanks to Attorney Suzanne Tighe of the Wilkes-Barre office of Thomas, Thomas, & Hafer for bringing this case to my attention. 

Monday, October 1, 2012

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