Monday, December 31, 2012

Pennsylvania Supreme Court Limits Delay Damages Calculation to Molded Amount in UM Cases

Tort Talkers may recall previous reportings here on the delay damages case of Marlette v. State Farm involving the issue of whether delay damages in a UM case should be calculated upon the full verdict of a jury or the reduce verdict in a case where an excess verdict was molded down to the amount of the UM limits available under the applicable automobile insurance policy.

In its December 28, 2012 decision in the case of Marlette v. State Farm, 2012 WL 6720916 (Pa. Dec. 28, 2012)(Opinion by Todd, J.)(McCaffery, J., dissenting),(Orie Melvin, J., not participating) the Pennsylvania Supreme Court squarely addressed that very issue of whether, after a jury trial in an uninsured (UM) matter, a plaintiff is entitled to delay damages on the full amount of the jury's verdict or only on the reduced verdict after it has been molded down to the amount of the available uninsured motorists limits allowed by the automobile insurance policy at issue.

After reviewing the law surrounding Pa.R.C.P. 238 delay damages, the Court ruled that a plaintiff may only recover delay damages as calculated on the amount of legally-recoverable damages to which the plaintiff is entitled pursuant to the verdict as molded downward to the amount of the available UM limits under the policy.  The Court remanded the case back to the trial court for the correct calculation of the delay damages.

By way of background, In this case, the jury entered an award of $550,000 in favor of the injured party plaintiff and $150,000 in favor of the plaintiff's spouse on the loss of consortium claim. In a post-verdict ruling the trial court molded the award downward to the available UM policy limits of $250,000 ($50,000 per vehicle stacked on five vehicles).

The Allegheny County trial court had also molded the verdict downward even further to $233,306.98, reflecting a credit due to State Farm by virtue of a previous payment made by the carrier in the amount of $16,693.02.

The plaintiffs requested delay damages on the $550,000 portion of the jury's verdict (the parties agreed that delay damages are not permitted with respect to loss of consortium claims under Pennsylvania law). State Farm argued that the plaintiffs were not entitled to any delay damages because State Farm was only responsible to pay up to the UIM limits under the provision of the policy.

The trial court disagreed with both parties and awarded delay damages on the reduced figure of $233,306.98. The delay damages that were awarded did push the final verdict amount up to a number that was above the $250,000 UIM policy limits number.

On appeal, the Pennsylvania Superior Court held that the delay damages should have been calculated on the jury's verdict amount, i.e., $550,000. The appellate court also ruled that the Plaintiffs could recover monies from the carrier over and above the UIM policy limits number. 

As noted above, the Pennsylvania Supreme Court has reversed and sent the matter back to the trial court for a delay damages calculation consistent with its decision, i.e. on the reduced, molded amount. 

The rationale for the Supreme Court's decision in Marlette v. State Farm was based, in part, on its previous decision in the case of Allen v. Mellinger, 784 A.2d 762 (Pa. 2001), in which the Court limited the delay damages calculation to the statutory cap amount ($250,000) against a Commonweath defendant as opposed to the calculation being based upon a $2.9 million dollar verdict.

The obvious and stated  purpose of Rule 238 is to compensate a plaintiff for the delay in his recovery in a civil litigation matter.  In its Opinion, the Marlette Court quoted the Allen case in stating that it "[d]efies reason" to suggest that the basis for calculating such compensation could be anything other than the amount a defendant could actually be responsible for paying to the plaintiff.

Since the applicable law limits a plaintiff's recovery in a UM case to the amount of the UM limits under the applicable contract of insurance, then there can be no delay for the plaintiff in receiving amounts in excess of those limits as the plaintiff is not entitled to receive those excess amounts in this litigation against the carrier.

According to Marlette, it therefore follows that if there is no valid claim for a delay in receiving those excess amounts above the policy limits, then there is no basis to include those excess amounts in the calculation of delay damages.

Anyone wishing to view the Majority Opinion in Marlette may click HERE.

Anyone wishing to view the Majority Opinion in Marlette may click HERE.


I send thanks to the prevailing defense attorney, Daniel Rivetti, of the Pittsburgh law firm of Robb Leonard Mulvihill for bringing this decision to my attention.


COMMENTARY:

Given the courts' practice of generally handling UIM and UM issues in a similar fashion, it is anticipated that that underinsured (UIM) cases will be handled in a similar fashion, i.e. delay damages will be calculated based upon a reduced verdict molded down to the amount of the available UIM limits in a given case.

In a Post-Koken case, the issue may become whether there should be two separate amounts of delay damages depending upon the defendant. 

In other words, should there be a delay damages assessed on the full verdict against the third party tortfeasor defendant, and a separate delay damages assessment against the UIM carrier based only upon a molded downward verdict against the UIM carrier to the amount of the UIM limits.

Also, should a UIM carrier's delay damages assessment only be applied to those damages left against that carrier after the verdict is molded down to the limits AND after the third party credit in the amount of the liability limits due to the UIM carrier is applied? 

Sometimes it seems that the more issues that are resolved, the more others are created.

Sunday, December 30, 2012

First Party Benefits Decision Out of Dauphin County

In his recent December 13, 2012 opinion in the case of Doctor’s Choice Physical Medicine & Rehabilitation Center, P.C. (LaSelva), v. Travelers Personal Ins. Co., No. 2008-Civil-16214 (C.P. Dauphin Co. Dec. 13, 2012 Clark, J.), Judge Lawrence F. Clark, Jr., of the Dauphin County Court of Common Pleas entered judgment in favor of a medical provider Plaintiff after a non-jury trial in a first party medical benefits dispute.  The Court awarded to the medical provider the unpaid medical expenses plus statutory interest at 12% per annum, attorney’s fees, and costs of suit.

By way of background, the Plaintiff medical provider sued the carrier after that carrier’s refusal to pay for certain chiropractic treatment bills allegedly resulting from accident-related injuries suffered by the injured party, Angela LaSelva.  The carrier refused to pay based upon a decision made in a peer review process that treatments provided after a certain date were not medically reasonable or necessary.

In his Opinion, Judge Clark reviewed the applicable first party law under 75 Pa. C.S.A. §1797 pertaining to the peer review process. The Plaintiff in this matter alleged that the peer review report relied upon by the carrier was illegal and defective as to the determination made that the treatment was not reasonable or necessary after the date stated. At the bench trial, the Court heard from the treating chiropractor who testified as to the reasonableness and necessity of the treatment. The peer review expert also testified for the defense as well.

According to the Court’s Opinion, after reviewing all of the testimony and exhibits, the Court concluded that the Plaintiff medical provider established by the clear preponderance of the evidence that the questioned treatments were indeed reasonable and necessary for the Plaintiff’s ongoing pain.

This Opinion provides a nice overview of the peer review process and the standard of review of the court in these types of cases.

Anyone desiring to review this Opinion in Doctor's Choice v. Travelers may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Thursday, December 27, 2012

HAPPY NEW YEAR!


HAPPY NEW YEAR TO YOU!





SENDING BEST WISHES FROM MY OFFICE IN SCRANTON, PENNSYLVANIA TO YOU

FOR A

HAPPY, HEALTHY NEW YEAR
 
 
 
 
PLEASE DO NOT HESITATE TO CONTACT ME IF I SHOULD BE ABLE TO HELP YOU OUT EITHER WITH COPIES OF ANY CASES CITED ON TORT TALK OR IN ANY OTHER WAY THAT I MAY BE OF ASSISTANCE TO YOU IN NORTHEASTERN PENNSYLVANIA.
 



THANKS AGAIN FOR READING AND SUPPORTING

TORT TALK



DANIEL E. CUMMINS, ESQ.

FOLEY, COMERFORD & CUMMINS
THE SCRANTON ELECTRIC BUILDING
SUITE 700
507 LINDEN STREET
SCRANTON, PA 18503
570-346-0745



The 2012 TORT TALK TOP 10

THE 2012 TORT TALK TOP 10



As another year winds down to an end, here's a look back at some of the top cases and trends of the year in the 2012 TORT TALK TOP 10:




10.  Recklessness Not Covered by Exculpatory Clauses


In its decision in Tayar v. Camelback Ski, 47 A.3d 1190 (Pa. 2012), the Pennsylvania Supreme Court held that it was against public policy to release reckless behavior in a pre-injury exculpatory clause. The court more specifically found that a ski resort's release form attempting to release the resort and its employees for liability for reckless conduct was invalid  Click HERE for more info on that case.



9.  Error in Judgment Defense Under Fire

The Pennsylvania Supreme Court agreed to review the case of Passarello v. Grumbine, 29 A.3d 1159 (Pa.Super. 2011), appeal granted, 44 A.3d 654 (Pa. 2012), to address whether medical malpractice defendants may continue to rely upon an "error in judgment" defense at trial.

Under an application of the "error in judgment" defense, the trial courts instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

This defense was first found to be invalid in the Superior Court case of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009). In its more recent decision in Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively.

Now, the issue is proceeding up to the Pennsylvania Supreme Court in Passarello for further review. The Supreme Court's decision in this regard could have a substantial impact on the defense of medical malpractice cases in the future.


  8.  Regular Use Exclusion Upheld (Again)

Over the past year, the Superior Court rebuffed several attempts by the plaintiffs bar to overturn the regular use exclusion, which upholds the all-American principle that "you can't get something for nothing."

The regular use exclusion typically comes into play where an injured party is injured in an accident while operating a vehicle that was not covered under the insurance policy that the injured party has made a claim against. The exclusion basically works to prevent an insurance company from being subjected to an additional risk of coverage for a vehicle for which the insurance company did not receive a premium or intend to insure.

Earlier this year, the Superior Court upheld a non-owned, regularly used vehicles exclusion in its nonprecedential decision in the case of Erie Insurance v. Soroka, No. 1086 M.D.A. 2011 (Pa. Super. March 8, 2012 Gantman, Allen, and Mundy, J.J.) (Memorandum by Mundy, J.).

In a September 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 Superior Court revisited the regular use exclusion issue and again affirmed the validity and enforceability of that exclusion in an underinsured motorist coverage benefits case involving alleged injuries sustained by the claimant while driving at work.

In its more recent October 18 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 Superior Court again upheld the validity of the regularly used, non-owned vehicle exclusion. 

The essential question in this case was whether the plaintiff was "regularly" using the subject vehicle in a way contemplated by the exclusion. The Pennsylvania Superior Court thoroughly reviewed the law pertaining to the test for regular use, i.e., "whether the use is regular or habitual," and found that the use of the vehicle was indeed regular under the facts of this case.

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



7.  UM/UIM Rejection Forms

Several decisions from the past year confirmed that, when it comes to rejection of UM/UIM forms, "the t's have to be crossed and thi i's have to be dotted."

The specific requirements for the language of a rejection of underinsured motorist benefits form are set forth under 75 Pa. C.S. §1731.

In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance, No. 397 W.D.A. 2011 (Pa. Super. Feb. 6, 2012 Musmanno, Alan and Mundy J.J.), (Opinion by Mundy, J.) (Alan J. dissenting), the Superior Court held that insurance carriers must strictly comply with the mandates for the form utilized for an insured's rejection of UIM benefits during an application for automobile insurance.

Noting that the other prior analogous decisions have required that the subject form "specifically comply" with the requirements of §1731(c), the Superior Court in Jones found that, by adding a sentence to the form between the required language and the signature line, the Unitrin UIM rejection form did not "specifically comply" with §1731(c) as required by §1731 (c.1) and was, therefore, void.

It is noted that U.S. District Senior Judge Edmund V. Ludwig of the Eastern District of Pennsylvania relied upon Jones in ruling in Robinson v. Travelers Indemnity Co. of America, 2012 WL 677007 (E.D. Pa. Feb. 29, 2012), that the addition of even a single word to the mandated language rendered the rejection form void. In Robinson, the carrier had changed the waiver by simply adding the word "motorists" into the phrase "underinsured coverage" in the mandated language.

Thus, there can be no question that strict compliance with the statutory mandates for UM/UIM rejection forms is required.



6.  Negligent Infliction of Emotional Distress

In a decision that was actually handed down at the end of 2011, the Pennsylvania Supreme Court addressed the expanding parameters of the cause of action for negligent infliction of emotional distress (NIED).

By was of a Supreme Court split decision in the case of Toney v. Chester County Hospital, 36 A.3d 83 (Pa. 2011), the Superior Court's decision found at 961 A.2d 192 (Pa.Super. 2008), recognizing a new variation of the tort, was allowed to stand.

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

Under Toney, the Superior Court recognized a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a "negligent breach of a contractual or fiduciary duty," absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the plaintiff alleged that her medical providers had read an ultrasound during the plaintiff's pregnancy as being normal.

Unfortunately, the plaintiff's child was later born with several profound abnormalities. The plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities. The Supreme Court's split decision on the case allowed the Superior Court's extension of the tort of NIED to stand.



5. Social Media Discovery

This a carry-over hot topic from last year's Tort Talk Top 10 list.  A slew of trial court opinions continue to come down on the issue of Social Media Discovery, particularly on the topic of whether personal injury defendants are entitled to view the private pages of a plaintiff's Facebook pages.

A split of authority has continued and, hopefully, an appellate court will be given an opportunity in 2013 to address the issue of whether such disclosures should be allowed under the liberal Rules of Civil Procedure pertaining to discovery. To review Social Media Discovery posts from over the past year, scroll through the Facebook Discovery Scorecard HERE.

Overall, the Pennsylvania trial court decisions handed down to date can be read as standing for the proposition that, where there is an initial threshold showing that discovery of the opposing party's private Facebook pages is likely to lead to the discovery of information pertinent to the claims or defenses presented, such discovery will ordinarily be allowed. 

This threshold showing may be made through admissions by the party at a deposition that the private pages may reveal pertinent information.  Another way to possibly make this threshold showing is by establishing that there is relevant information depicted on the public pages of the party's social media sites.



4. Barrick v. Holy Spirit Hospital

This is another carry-over from the 2011 Tort Talk Top Ten list.  In 2012, the Pennsylvania Supreme Court accepted the appeal in the case of  Barrick v. Holy Spirit Hospital  to address the issue of whether communications by an attorney to an expert retained by that attorney are discoverable.

By way of background, the Dauphin County trial court ruled in Barrick that these types of communications were indeed discoverable, particularly where an in camera review by the court of the written communications by the plaintiff's counsel with the plaintiff's medical expert confirmed that this contact from the attorney could have, in the words of the trial court judge, "materially impacted" the expert's formulation of his opinion.

On appeal, an original three-member panel of the Superior Court affirmed the trial court's decision that these types of communications by an attorney to an expert were discoverable. Then, on reargument, an en banc panel of the Pennsylvania Superior Court reversed and held that these communications were not discoverable.

In a one-page order filed by the Pennsylvania Supreme Court on August 31 granting allocatur, the Supreme Court noted that it will review the issue of "whether the Superior Court's interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work-product protection to all communications between a party's counsel and their trial expert."

The Supreme Court's decision will be closely watched by civil litigators, as it could substantially impact how attorneys confer with their experts from this point forward.



3. Settlements and Medicare Liens

Here's another carry-over from the 2011 Tort Talk Top 10 list.  The issue of impact on Medicare Liens and settlements continued to come into play in 2012.

In 2011, both the Cambria County case of Vincent v. Buck, No. 2011-CV-456 (Cambria Co., April 4, 2011, Swope, S.J.), and the Monroe County case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (Monroe Co. May 18, 2011, Zulick, J.), the trial court judges relied upon the Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010)  decision to support a granting of a plaintiff’s motion to compel a defendant to pay a settlement over the Defendants’ objection that Medicare lien issues were not yet resolved.

In both decisions, the trial courts emphasized that there was nothing in the releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure that the Medicare lien was addressed prior to the issuance of the settlement check. 

A similar trial court result from 2012 with an excellent analysis on the issue can also be found in Wimberly v. Katruska, PICS Case No. 12-1060 (C.P. Allegheny 2012).

In 2012, federal courts also jumped into the mix on the issue. In Carty v. Clark, 2012 U.S. Dist. LEXIS 98314 (E.D.Pa. 2012), U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted a plaintiff's motion to enforce settlement after citing the clear terms of the release, which stated that, once the final demand letter was produced by the plaintiff from Medicare, as was accomplished in this matter, the settlement proceeds were to be released to the plaintiff.

Pennsylvania civil litigators have also been pointing to the District Court of New Jersey's unpublished decision in Sipler v. Trans Am Trucking, 2012 U.S. Dist. LEXIS 109278 (D.N.J. 2012), in which that court also ruled, in no uncertain terms, that a plaintiff's settlement could not be held up by Medicare lien or set-aside issues.

It seems that litigators on both the plaintiffs side and the defense side of the bar have welcomed these decisions clarifying the ability of parties to conclude personal injury matters despite existing Medicare liens.



2.  Pusl Overturned

Without a doubt, the most talked-about auto law opinion to come down over the past year was the Pennsylvania Superior Court's September 28 decision in the case of Smith v. Rohrbaugh, No. 91 MDA 2010, 2012 Pa. Super. 208 (Pa.Super. Sept. 28, 2012 Stevens, P.J., Bender, J., Panella, J., Donohue, J., Allen, J., Mundy, J., Olsen, J., Ott, J., and Wecht, J.) (Opinion by Ott, J.), in which that court took the rare step of reversing one of its notable earlier holdings.

In Smith v. Rohrbaugh, the Superior Court held that its previous decision in the case of Pusl v. Means, 982 A.2d 550 (Pa.Super. 2009), was wrongly decided and therefore overruled.

In Pusl, the Superior Court held that, where a plaintiff first obtained an underinsured (UIM) benefits recovery in a motor vehicle accident case from his or her own automobile insurance company, the defendant tortfeasor in the third-party liability lawsuit was entitled to a credit against the verdict up to the UIM amounts already received by the plaintiff.

The rationale behind this ruling was to prevent a double recovery by the plaintiff in violation of Pennsylvania's Motor Vehicle Financial Responsibility Law.

When the prior Pusl decision came down in 2009, it caused quite a stir and many litigators on both sides of the bar questioned the validity of the decision. As the auto litigation bar was anxiously awaiting a review of the Pusl case by the Pennsylvania Supreme Court, that court surprised many by denying allocatur, thereby leaving the Superior Court's decision as the rule of the land.

In the recent Smith v. Rohrbaugh case, the trial court applied a Pusl UIM credit against a jury's verdict entered against the tortfeasor defendant driver.

The plaintiff objected to this credit and appealed.

On appeal, the Superior Court in Smith noted that Pusl had been based, in part, upon the Superior Court's prior decision in the case of Tannenbaum v. Nationwide Ins., 919 A.2d 267 (Pa.Super. 2007), which pertained to the recovery of first-party benefits. However, the Superior Court decision in Tannenbaum had since been overruled by the Pennsylvania Supreme Court. Thus, a rationale underpinning the Superior Court's separate ruling in Pusl was eradicated.

In Smith, the Superior Court stated that the court in Pusl had correctly decided that a section of the Motor Vehicle Financial Responsibility Law, i.e., 75 Pa.C.S.A. Section 1722, prevented a double recovery of first-party benefits in motor vehicle accident matters. The court noted that UIM benefits are generally and colloquially considered to be first-party benefits because they come from the first-party carrier.

However, the Smith court found that the Pusl decision incorrectly equated UIM benefits with the type of first-party benefits that are specifically defined in the MVFRL by the legislature. Based upon a finding that the reasoning in Pusl was incorrect, it was held in Smith that the Pusl court had also incorrectly concluded that the Section 1722 prohibition against a double recovery of first-party benefits applied to UIM payments. The court found that to rule otherwise would represent an impermissible rewriting of the MVFRL.

As such, the Pusl credit no longer exists and it appears that a plaintiff may now, if desired, secure UIM benefits prior to proceeding on a claim against the third-party tortfeasor on the liability side.

It remains to be seen whether this case will be appealed up to the Pennsylvania Supreme Court and, if so, whether that court will grant allocatur to hear the appeal this time.



1.  Split on Proper Standard of Review for Products Cases

One of the most important, recurring issues over the past year has been whether the standard found in the Restatement (Second) of Torts or the different standard adopted in the Restatement (Third) of Torts should be utilized in products liability cases.

To date, the Pennsylvania Supreme Court has not squarely ruled upon this issue.  The Pennsylvania Federal Courts have issued conflicting decisions.

While the Restatement (Second) calls for a more narrow application of negligence principles in the products liability context, the Restatement (Third) decreases the emphasis upon the concepts of "intended use" and "intended user," along with placing a greater emphasis on the doctrine of "reasonable foreseeability," all of which changes arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product.

It appears that litigators and the lower courts will have to continue to struggle with this issue until it reaches the Pennsylvania Supreme Court again.

For more information on the cases surrounding this issue, click HERE.

Saturday, December 22, 2012

U.S. Senate Approves Two Nominees for Middle District of Pennsylvania Federal Bench

According to a December 22, 2012 article by Steve McConnell in the Scranton Times-Tribune, the U.S. Senate has unanimously approved the nominations of Bradford County attorney Matthew W. Brann and U.S. Magistrate Judge Malachy E. Mannion to become federal district judges in the Middle District of Pennsylvania.

I am not sure if the article can be accessed online but, if so, here's a LINK to it.

ARTICLE: Year-End Review of Important Civil Litigation Cases and Trends

A Shifting Landscape: Changes Keep Things Interesting for Civil Litigators

by

Daniel E. Cummins

Pennsylvania Law Weekly
December 12, 2012


With the recent re-election of President Obama, the recurring issue of national tort reform, which was quiet during this presidential campaign, goes back on the shelf to gather more dust until another election day. In the meantime, jurisprudence in Pennsylvania meandered on and off the straight path of stare decisis with notable shifts in the law over the past year.

This second part of a two-part column analyzes the important trends and cases of the year 2012 in general Pennsylvania civil litigation matters.

A Short-Handed High Court

With a number of important issues headed toward, or already before, the Pennsylvania Supreme Court, it is unfortunate that there are now only six sitting justices on that bench. Earlier this year, Justice Joan Orie Melvin was suspended from the court to address criminal allegations filed against her pertaining to charges that she used legislative and judicial staff to perform campaign work.

Now with only six justices sitting on the bench, under the applicable rules, whenever the Pennsylvania Supreme Court comes down with a 3-3 split decision on any matters before it, the lower appellate court's ruling will be allowed to stand.

Such results are rife with uncertainty and do not provide the strong guidance derived from final word on the matter by the highest court in the state as intended under the judicial system set up by the Pennsylvania Constitution.

As noted by The Legal appellate law columnist Howard J. Bashman, one wise proposal to remedy this precarious situation would be to have appeals from the Superior Court heard by the six Supreme Court justices and a randomly assigned Commonwealth Court judge and vice versa for appeals from the Commonwealth Court.

It is unclear if the Pennsylvania Supreme Court could adopt this proposed procedure on its own or if legislative action would be required. Either way, something should be done to remedy this unfortunate and troublesome situation for now and in the event it recurs in the future.

Products Liability Mixed Signals

One important issue that could benefit from a full complement of Pennsylvania Supreme Court Justices is the issue of whether the standard found in the Restatement (Second) of Torts or the different standard adopted in the Restatement (Third) of Torts should be utilized in products liability cases.

To date, the Pennsylvania Supreme Court has not squarely ruled upon this issue.

While the Restatement (Second) calls for a more narrow application of negligence principles in the products liability context, the Restatement (Third) decreases the emphasis upon the concepts of "intended use" and "intended user," along with placing a greater emphasis on the doctrine of "reasonable foreseeability," all of which changes arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product.

The Pennsylvania federal courts have struggled with this very issue in the past year or so in the absence of concrete guidance from the Pennsylvania Supreme Court. Although the U.S. Court of Appeals for the Third Circuit has repeatedly stated or suggested in its recent decisions in Berrier v. Simplicity Manufacturing, 563 F.3d 38 (3d Cir. 2009), Covell v. Bell Sports, 651 F.3d 357 (3d Cir. 2011), and Sikkelee v. Precision Automotive, 2012 U.S. App. LEXIS 22185 (3d Cir. 2012),that federal trial courts should apply the Restatement (Third) in products liability cases, several federal district court judges have disagreed.

Several federal district court judges have noted that while the Third Circuit has made repeated predictions that the Pennsylvania Supreme Court would adopt the Restatement (Third), the Pennsylvania Supreme Court declined to adopt the Third Restatement analysis despite an opportunity to do so in the decision of Beard v. Johnson & Johnson, 41 A.2d 823 (Pa. 2012).

According to a recent compilation by Law Weekly reporter Amaris Elliott-Engel, those federal district court judges who have presently chosen to follow the Restatement (Second) in products liability cases contrary to the Third Circuit's analysis include Judge John E. Jones of the Middle District of Pennsylvania in Sikkelee v. Precision Automotive, 2012 U.S. Dist. LEXIS 91497 (M.D.Pa. 2012), Judge Nora Barry Fischer of the Western District of Pennsylvania in Gross v. Stryker, 858 F.Supp.2d 466 (W.D.Pa. 2012), and Judge Arthur J. Schwab of the Western District in Konold v. Superior International Industries, 2012 U.S. Dist. LEXIS 156200 (W.D.Pa. 2012).

Elliott-Engel also noted in her recent article that federal district court judges who have chosen to instead apply the Restatement (Third) under the Third Circuit's prediction include Judge Mark R. Hornak of the Western District in his decisions in the cases of Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 103734 (W.D.Pa. 2012), and Lynn v. Yamaha Golf-Car, 2012 U.S. Dist. LEXIS 115936 (W.D.Pa. 2012), Judge Donetta W. Ambrose in Zollars v. Troy-Built, 2012 U.S. Dist. LEXIS 148614 (W.D.Pa. 2012), and Judge Maurice Cohill Jr. in Spowal v. ITW Food Equipment Group, 2012 U.S. Dist. LEXIS 47614 (W.D.Pa. 2012).

It appears that litigators and the lower courts will have to continue to struggle with this issue until it reaches the Pennsylvania Supreme Court again. Hopefully, by that time, there will be a full complement of justices on the bench.

Discoverability of Attorney-to-Expert Communications

Another issue that may be hurt by the less-than-full complement of Supreme Court justices is the issue of whether communications by an attorney to an expert retained by that attorney are discoverable. Recently, the court granted allocatur to squarely address this issue in Barrick v. Holy Spirit Hospital, 52 A.3d 221 (Pa. 2012).

For full disclosure purposes, it is noted that I drafted the amicus briefs for the Pennsylvania Defense Institute at the Superior Court level.
By way of background, the Dauphin County trial court ruled in Barrick that these types of communications were indeed discoverable, particularly where an in camera review by the court of the written communications by the plaintiff's counsel with the plaintiff's medical expert confirmed that this contact from the attorney could have, in the words of the trial court judge, "materially impacted" the expert's formulation of his opinion.

Obtaining discovery on these types of communications is important in that it will allow opposing counsel to cross-examine on whether an expert's report was, at worst, written entirely by the expert or, at least, influenced by the retaining attorney's input. The need for such discovery in this regard to provide the tools and information to test the truth of the claims or defenses presented by the opposing party's expert on cross-examination runs up against the attorney work-product doctrine that arguably protects from disclosure the theories and opinions on the case given by the attorney to his or her expert.

On appeal, an original three-member panel of the Superior Court affirmed the trial court's decision that these types of communications by an attorney to an expert were discoverable. Then, on reargument, an en banc panel of the Pennsylvania Superior Court reversed and held that these communications were not discoverable.

In a one-page order filed by the Pennsylvania Supreme Court on August 31 granting allocatur, the Supreme Court noted that it will review the issue of "whether the Superior Court's interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work-product protection to all communications between a party's counsel and their trial expert."

The Supreme Court's decision will be closely watched by civil litigators, as it could substantially impact how attorneys confer with their experts from this point forward.

It is also noted on this issue that, in early 2011, the Pennsylvania Supreme Court Civil Procedural Rules Committee published a draft of its Proposed Recommendation No. 248, seeking to amend Pa.R.C.P. 4003.5, which pertains to expert discovery. The amendment would bring the state expert discovery rule more in line with its companion federal rule of civil procedure and provide greater protections against expert discovery. However, that proposal was quiet in 2012 and apparently remains under consideration somewhere in the process.

Other Supreme Court Decisions

The Pennsylvania Supreme Court took action on a number of other issues of note over the past year, as well.

In its decision in Tayar v. Camelback Ski, 47 A.3d 1190 (Pa. 2012), the Pennsylvania Supreme Court held that it was against public policy to release reckless behavior in a pre-injury exculpatory clause. The court more specifically found that a ski resort's release form attempting to release the resort and its employees for liability for reckless conduct was invalid.

In another decision that was actually handed down at the end of 2011, the Supreme Court also addressed the expanding parameters of a negligent infliction of emotional distress (NIED) claim. With the Supreme Court's split decision in its long-anticipated opinion in the case of Toney v. Chester County Hospital, 36 A.3d 83 (Pa. 2011), the Superior Court's decision found at 961 A.2d 192 (Pa.Super. 2008), recognizing a new variation of the tort, was allowed to stand.

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

Now, with Toney, comes a fourth variation.

Under Toney, the Superior Court recognized a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a "negligent breach of a contractual or fiduciary duty," absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the plaintiff alleged that her medical providers had read an ultrasound during the plaintiff's pregnancy as being normal.

Unfortunately, the plaintiff's child was later born with several profound abnormalities. The plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities. The Supreme Court's split decision on the case allowed the Superior Court's extension of the tort of NIED to stand.
Another Supreme Court decision to watch for in the year ahead is in the case of Passarello v. Grumbine, 29 A.3d 1159 (Pa.Super. 2011), appeal granted, 44 A.3d 654 (Pa. 2012), in which the court accepted an appeal to address whether medical malpractice defendants may continue to rely upon an "error in judgment" defense at trial.

Under an application of the "error in judgment" defense, the trial courts instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

This defense was first found to be invalid in the Superior Court case of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009). In its more recent decision in Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively. Now, the issue is proceeding up to the Pennsylvania Supreme Court in Passarello for further review. The Supreme Court's decision in this regard could have a substantial impact on the defense of medical malpractice cases in the future.

Facebook Discovery

A recurring issue that, to date, has not yet reached the Supreme Court, or even any appellate court for that matter, is whether a civil litigant's private Facebook pages are subject to discovery in a personal injury matter.

This issue has resulted in conflicting decisions in the Pennsylvania courts of common pleas. After providing a detailed summary of the split of authority amongst the Pennsylvania trial courts, Allegheny County Court of Common Pleas Judge R. Stanton Wettick, a renowned expert on discovery issues, handed down his July decision denying Facebook discovery under the particular facts set forth in the case of Trail v. Lesko.

After providing a detailed review of the issue over a 22-page opinion, which included a background on Facebook itself along with a review of Facebook discovery decisions from both within Pennsylvania and outside jurisdictions, Wettick ruled that both the plaintiff's and the defendant's cross-motions to compel access to the other's Facebook pages would be denied in this particular motor vehicle accident litigation.

Wettick denied the requests for Facebook discovery, in part, under a rationale that, pursuant to Pa.R.C.P. 4011, such requests were unreasonably intrusive in that, under the facts of this 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."

Overall, Wettick's opinion and the other Pennsylvania trial court decisions handed down to date can be read as standing for the proposition that, where there is an initial threshold showing that discovery of the opposing party's private Facebook pages is likely to lead to the discovery of information pertinent to the claims or defenses presented, such discovery will ordinarily be allowed.

Holding Up Settlements on Medicare Liens

Another ongoing trend in civil litigation matters is the continuing concern of addressing Medicare liens asserted against personal injury settlements and verdicts.

In its 2010 decision in the case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010), the Superior Court upheld a plaintiff's argument that a defendant's statutory obligation to reimburse Medicare was separate and distinct from Medicare's statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payer Act "expressly authorizes a primary plan to assert Medicare's right to reimbursement as a pre-emptive means of guarding against its own risk of liability."

In other words, defendants and liability carriers in personal injury matters did not have a right to demand that certain steps be taken by a plaintiff to ensure that a Medicare lien was satisfied out of the money paid to the plaintiff. To the contrary, under the Medicare Secondary Payer Act, only the U.S. government, and not any private entity, may pursue a recovery of the liens.

Since the issuance of the Zaleppa decision, a few trial court decisions have come down over the past year expanding on this issue. Last year, in both the Cambria County case of Vincent v. Buck, No. 2011-CV-456 (C.P. Cambria 2011), and the Monroe County case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (C.P. Monroe 2011), the trial court judges relied upon the Zaleppa case to support granting a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved.

A similar trial court result with an excellent analysis on the issue can also be found in Wimberly v. Katruska, PICS Case No. 12-1060 (C.P. Allegheny 2012).

In 2012, federal courts have gotten into the mix on the issue. In Carty v. Clark, 2012 U.S. Dist. LEXIS 98314 (E.D.Pa. 2012), U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted a plaintiff's motion to enforce settlement after citing the clear terms of the release, which stated that, once the final demand letter was produced by the plaintiff from Medicare, as was accomplished in this matter, the settlement proceeds were to be released to the plaintiff.

Pennsylvania civil litigators have also been pointing to the District Court of New Jersey's unpublished decision in Sipler v. Trans Am Trucking, 2012 U.S. Dist. LEXIS 109278 (D.N.J. 2012), in which that court also ruled, in no uncertain terms, that a plaintiff's settlement could not be held up by Medicare lien or set-aside issues.

It seems that litigators on both the plaintiffs side and the defense side of the bar have welcomed these decisions clarifying the ability of parties to conclude personal injury matters despite existing Medicare liens.

Looking Ahead

As noted above and in the previous companion article on auto law issues, there are a number of important issues on the dockets at all levels of the Pennsylvania state and federal court systems that should keep things interesting for civil litigators in the year ahead. Developing law on post-Koken questions, UM/UIM issues, proper standards for products liability matters, and Facebook discovery requests should all continue to play a major part in the ever-changing landscape of civil litigation in Pennsylvania. •



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.



Tuesday, December 18, 2012

Centre County Rules in Favor of Consolidation in Post-Koken Cases

In what appears to be the first Post-Koken case out of Centre County on the consolidation vs. severance issue, Judge Pamela A. Ruest of the Centre County Court of Common Please ruled in favor of the consolidation of such claims in Fennessey v. Sweeney and State Farm Mut. Automobile Ins. Co., No. 2012-2865 (Centre Co. Dec. 11, 2012).

In this case, the Plaintiff filed a third party and UIM claim for her alleged personal injuries from a July 29, 2010 motor vehicle accident. State Farm was the insurance company for both the third party tortfeasor and the plaintiff for the UIM claim.

Both Defendants filed preliminary Objections to the Complaint along with Motions to Sever.

Judge Ruest overruled the joinder Preliminary Objections based upon a primary finding that the claims were properly joined under Pennsylvania Rule of Civil Procedure 2229(b) as the claims all arose out of the same transaction or occurrence, i.e., the car accident of July 29, 2010.

The court also denied the motion to sever and found that Pennsylvania Rule of Evidence 411, pertaining to the admissibility of insurance matters in civil litigation claims, did not warrant severance. The court noted that "[h]ere, evidence of Defendants' insurance coverage would be admissible to help determine State Farm's liability as the provider of underinsured motorist coverage........The Court also agrees with Plaintiffs that it would be inefficient and unfair to Plaintiffs to require two trials that would be nearly identical in many respects."  Judge Ruest also noted that remedial measures could be taken if the Plaintiff were to attempt to introduce insurance issues for an improper purpose.

In its decision, the Fennessey court also overruled Preliminary Objections with regards to a loss of consortium claim under a limited tort argument. The court held that the ability to recover for a "serious injury" is tied to the person actually injured and that the person claiming loss of consortium does not need to have sustained an independent "serious injury" in order to recover on the derivative loss of consortium claim.

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

I send thanks to Attorney Amy Kubisiak out of Pittsburgh for providing me with a copy of this decision.

Discovery Deposition of Claims Rep Precluded in Post-Koken Case

Judge Shad Connelly of the Erie County Court of Common Pleas recently issued an Order granting State Farm's Motion for a Protective Order for Corporate Designee Deposition and quashing a Notice of Deposition sent to a UIM carrier's claims representative in the Post-Koken case of Engel v. State Farm Mut. Auto. Ins. Co., No. 13083 - Civil - 2011 (C.P. Erie Co. Dec. 11, 2012 Connelly, J.).

In his detailed Order, the Judge emphasized that many of the questions posed in the Notice of Corporate Designee Deposition were previously answered in written discovery responses submitted to State Farm and that the Plaintiff did not object to any such responses. 

Judge Connelly noted that the remainder of the questions noted in the Deposition Notice were either irrelevant or impermissibly inquired into the corporate designee's (i.e. claims representative's) mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics in violation of Pa.R.C.P. 4003.3.

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

I send thanks to Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill for bringing this decision to my attention.



Superior Court Addresses Parameters of Definition of "Insured"

In its recent decision in the case of Barnes v. Keller, 2012 Pa. Super. 259, No. 2459 EDA 2011 (Pa. Super. Nov. 27, 2012 Shogan, Lazarus, and Blatt, J.J.) ( Opinion by Shogan, J.), the Pennsylvania Superior Court reversed the entry of summary judgment in favor of a Defendant insurance company in a case where the issue was, in part, whether or not the definition of an insured, an uninsured motor vehicle, and the question of who was entitled to recover uninsured motorist benefits was ambiguous under the policy language at issue.  

By way of background, the Plaintiff was employed as a field service technician for a company called McGovern, Inc.   McGovern, Inc. maintained a policy of insurance with Westfield Insurance Company and the Plaintiff alleged that he was an insured under that policy.

On the date of the subject accident, the Plaintiff’s employer had assigned him to go to a local store to work to unblock a clogged pipe.   While at the store working for his employer, the Plaintiff was holding on to a hose that was attached to a jetter machine that was attached to a trailer that was attached to a vehicle tow mount on the employer’s vehicle when the Plaintiff was hit by a car driven by an unidentified driver who was backing out of a parking spot.  

According to the Opinion, there was a number of factual disputes over whether the injured party was “vehicle oriented” or “occupying” a vehicle as required by the policy terms.   Applying the facts to its sterile analysis of the applicable law, the Superior Court concluded that a trailed vehicle can be a motor vehicle pursuant to Pennsylvania law as in the example of the tractor trailer analysis.  

The Superior Court also applied the Utica Mutual Insurance Company v. Contrisciane, 473 A.2d 1005 (Pa. 1984) test as to whether or not an injured party was “occupying” a vehicle and found that the Plaintiff had satisfied all of the elements of that test.  

Ultimately, the Pennsylvania Superior Court stated that, reviewing the case in a light most favorable to the injured party, the trial court incorrectly granted summary judgment in favor of the defense.   Because there were genuine issues of fact on the questions presented, the Superior Court reversed the trial court Order of summary judgment in favor of the defense.  

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

 

HAPPY HOLIDAYS TO YOU



HAPPY HOLIDAYS

from

Sending my best wishes to you for a Happy Holiday Season.  Thanks for reading and contributing to Tort Talk.

Dan Cummins

Thursday, December 13, 2012

Ongoing Split of Authority on Whether to Mention UIM Carrier Defendant at Post-Koken Trial

Yesterday a synopsis was posted here of the December 10, 2012 Allegheny County trial court decision in Stepanovich in which Judge O'Reilly of that Court ruled that it was not fair to allow the defense attorney for the underinsured motorist benefits (UIM) carrier Defendant to participate at the trial without identifying the UIM carrier to the jury.

An opposite result was handed down in the previous November 16, 2012 Allegheny County Court of Common Pleas decision by Judge Michael E. McCarthy in the case of Zubeck v. Yogan and State Farm, No. GD 09-014254, 1380 WDA 2012 (C.P. Alleg. Co. Nov. 16, 2012 McCarthy, J.), in which the court ruled that it was permissible to hold a Post-Koken trial without identifying the UIM carrier particularly where it appears from the Opinion that the Plaintiff was in agreement with that scenario going into the trial.

In this matter, the Plaintiff initially sued the tortfeasor defendant for injuries allegedly arising out of a motor vehicle accident.

About two months before the listed trial date, the Plaintiff separately sued State Farm as the UIM carrier Defendant.

The Plaintiff then filed a motion for continuance of the trial in the first action pending against the tortfeasor.  The Plaintiff listed the reasons for the need for the continuance as (1) involving the need for more time to assess the Plaintiff's medical prognosis for the accident-related injuries, and (2) allowing for the second filed case against the UIM carrier to be consolidated for trial with the first filed case against the tortfeasor.  The request for the continuance of the trial on the first matter was granted.

Thereafter, the motion to consolidate the two matters was also granted.  That consolidation Order also mandated, as had been requested by the Plaintiff that the consolidated case would be tried in accordance with the rulings from the case of Collins v. Zeiler and State Farm.  The rulings of Collins case mandated that insurance would not be mentioned at a Post-Koken trial.

When this matter proceeded to trial, both a defense attorney for the tortfeasor and a defense attorney for the UIM carrier Defendant participated and each presented expert witnesses.  There was no reference to the jury regarding the involvement of the UIM carrier Defendant.  A defense verdict was entered in this rear end accident matter.

The Plaintiff filed post-trial motions asserting, in part, that the Plaintiff was prejudiced by the court allowing the participation of two defense counsel without disclosure of the the identity of the UIM carrier Defendant to the jury.  The Plaintiff asserted that that prejudice could only have been cured by identifying the UIM carrier Defendant to the jury.

In this Opinion, the trial judge disagreed and noted that the jury was given standard instructions regarding numbers of exhibits and witnesses, as well as standard expert witness depositions.  The court also distinguished those decisions from other jurisdictions and other Pennsylvania courts on this issue or similar issues.

Judge McCarthy also reiterated that consolidation was allowed in this case in the first place at the request of the Plaintiff and after the Plaintiff affirmatively agreed that there would be no mention of insurance at the trial in accordance with prior Allegheny County precedent.

Like the Stepanovich case, the Zubeck case is also on its way up to the Pennsylvania Superior Court on appeal.

Anyone wishing to review this case of Zubeck v. Yogan and State Farm, may click this LINK.

I send thanks to Attorney Robert Loch of the Pittsburgh law firm of Robb Leonard Mulvihill for bringing this Opinion to my attention.

Wednesday, December 12, 2012

Rule 1925 Opinion Issued in Stepanovich Post-Koken Case

The Allegheny County Court of Common Pleas has issued its Rule 1925 Opinion in a Post-Koken case that's on its way up the appellate ladder to the Superior Court - Stepanovich v. McGraw and State Farm, No. GD 10-16523 (C.P. Allegh. Co. Dec. 10, 2012).
 
At trial, both the tortfeasor defendant's defense counsel and the UIM defense counsel defended the case--with two openings, two direct exams, two cross-exams, two closing arguments, etc.--without the jury ever being informed as to the involvement of State Farm as a UIM defendant.  A defense verdict was entered by the jury.
 
The trial court judge granted the Plaintiff a new trial after ruling, on post-trial motions, that, upon further reflection, his decision not to allow an identification of the UIM insurance company defendant at trial while still allowing two defense attorneys to defend the matter violated the Plaintiff's due process rights.
 
State Farm appealed and the Stepanovich court has now issued its Rule 1925 Opinion outlining its reasoning behind the granting of a new trial in this matter.
 
Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Tim McNair from Erie, PA, as well as to Attorney Tom McDonnell from Pittsburgh PA, for bringing this Opinion to my attention.

Monday, December 10, 2012

Summary Judgment Affirmed in Slip and Fall Case

In its recent decision in the case of Alexander v. City of Meadville, No. 664 WDA 2012 (Pa. Super. Nov. 5, 2012 Stevens, P.J., Musmanno, and Allen, J.J.) (Opinion by Allen, J.), the Pennsylvania Superior Court affirmed the trial court’s entry of judgment in favor of the Defendants in a slip and fall case.  

According to the Opinion, the Plaintiff slipped and fell on a smooth patch of ice that was covered by approximately 1 to 2 inches of snow on a ramp located on a sidewalk.  

The Superior Court addressed the liability of a municipality and the owner of land adjacent to a public sidewalk in a downtown business district area for injuries sustained by a licensee who allegedly fell while walking on a ADA sidewalk apron or ramp.   The Plaintiff was allegedly channeled to the apron by built-up long-standing ice and snow which was allegedly deposited by both owners shoveling the sidewalk and city trucks plowing adjacent streets. 

The court in this Alexander case covered a variety of subjects including the duties of possessors of land to licensees, the question of notice, the hills and ridges doctrine, the applicability of a municipal “Sidewalk Ordinance,” and the application of the Political Subdivision Tort Claims Act. 

As noted, the court ultimately affirmed summary judgment in favor of both the municipality and the owner of the commercial property.  

Although this case was originally issued as a non-precedential decision, after a motion filed by defense counsel, the Superior Court agreed to reproduce this Opinion as a published, and therefore, precedential Opinion.

Anyone wishing to review this Opinion may click HERE.  

I send thanks to Attorney Mark E. Mioduszewski of the Erie, Pennsylvania law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC, who represented Defendant, Patron’s Mutual Insurance Company.  Attorney Mioduszewski noted that the Defendant, City of Meadville, was represented by Bruce Decker of MacDonald, Illig, Jones & Britton, also of Erie, Pennsylvania.

Friday, December 7, 2012

Reportedly the Largest Allegheny County Verdict Ever Handed Down by Jury

Here is a link to an article reporting on what was allegedly the largest civil litigation personal injury verdict ever handed down in an Allegheny County case -  $109 million dollars was awarded by a jury in a negligent electrocution wrongful death suit:

http://www.post-gazette.com/stories/local/neighborhoods-east/family-wins-109-judgment-in-irwin-electrocution-death-665231/

I send thanks to Attorney William Byrne of the Wilkes-Barre, PA law firm of Hoegen & Associates for the tip.

Thursday, December 6, 2012

Two Recent Premises Liability Decisions of Note from Judge Zulick of Monroe County

 Koeppel v. PNC Bank, N.A.

In his recent decision in the case of Koeppel v. PNC Bank, N.A., PICS Case No. 12-2203 (C.P. Monroe Co. Oct. 11, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas found that the hills and ridges doctrine barred a Plaintiff’s negligence claim as the Plaintiff failed to present evidence that the Defendants allowed for an accumulation “in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians[.]”  As such, the Defendants’ Motion for Summary Judgment was granted.  

 By way of background the Plaintiffs alleged personal injuries after falling in the parking lot of the PNC Bank in Tannersville, Pennsylvania.   The record before the court was that an ice storm had passed through the area the evening before.  

Judge Zulick noted that the hills and ridges doctrine protects the possessor of land from liability for generally slippery conditions caused by ice and snowfall where the owner has not permitted the ice and/or snow to unreasonably accumulate into ridges and elevations.   It was also noted that, in order for the hills and ridges defense to apply, there must be generally icy or snowy conditions naturally arising in the area and the possessor of land must not have allowed the ice and/or snow to have accumulated into ridges and elevations.   The court emphasized that the accumulation at issue must be the result of an entirely natural occurrence, as opposed to any man made condition, for the defense to apply.  

 In this matter, the Plaintiff argued, relying upon Harvey v. Rouse Chamberlain, Ltd., 901 A.2d 523 (Pa. Super. 2006), that the hills and ridges doctrine did not apply because the accumulation at issue was not a natural occurrence, but rather, was allegedly due to the Defendant’s snow removal efforts prior to her accident.  

 In this matter, Judge Zulick found that the Plaintiff did not bring forth any evidence that the Defendants’ snow removal efforts led to the slippery conditions at issue.   Judge Zulick found the case before him to be more in line with the case of Beck v. Holly Tree Homeowners Ass’n., 689 F.Supp 2d 756 (E.D. Pa. 2001).  In this case, as in Beck, there was no evidence that the ice upon which the Plaintiff fell was formed as a result of any snow plowing efforts by the Defendant.  

 Accordingly, summary judgment was entered in favor of the defense.
This case has been appealed to the Superior Court.
Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Judge Arthur L. Zulick
Monroe County
Yohey v. Crupi
In his recent decision in the case of Yohey v. Crupi, PICS Case No. 12-2201 (C.P. Monroe Co. Oct. 16, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas entered summary judgment in favor of a Defendant after finding that a one-half inch differential in the elevation of the sidewalk where the Plaintiff fell amounted to only a trivial defect for which the Defendants were not liable under any claim of negligence.   

At the time of the incident, the Plaintiff was leaving a pizza shop under rainy conditions.   Other patrons were running towards the restaurant to escape the rain.  The Plaintiff stepped to the right in order to make room for the oncoming patrons.   As she moved, the Plaintiff stepped on to an uneven portion of the pavement and fell.    

The court noted that, during her deposition testimony, the Plaintiff admitted that she was not looking where she was stepping and did not see what caused her to fall.   However, the Plaintiff’s daughter, who was present at the time of the incident, was able to identify the location of the fall by pointing to a photograph during her deposition  testimony.   The court noted that one portion of the sidewalk was one half inch vertically lower than the surrounding sidewalk in the area of the Plaintiff's alleged fall. 

In response to the Defendant’s trivial defect defense, the Plaintiffs asserted that the Defendants’ alleged negligence was an issue to be determined by a jury.  

Judge Zulick noted the law that “[a]n elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist.”   The court also noted that there was no definite or mathematically rule that determines whether or to a defect is trivial.   Rather, each case must be determined upon its own merits. 

Judge Zulick stated that “appellate courts have found that sidewalk imperfections greater in depth and overall size than at issue here were insufficient to impose liability as a matter of law.”   citing Davis, Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963) [and other cases].  

In concluding his Opinion and granting summary judgment in favor of the defense, the court noted that “A pedestrian should not expect a perfectly level walking surface on a sidewalk in the Poconos.”  

This case has been appealed up to the Superior Court.

Anyone desiring a copy of Judge Zulick's Opinion in the case of Yohey v. Crupi may contact me at dancummins@comcast.net.



Source: "Case Digests," Pennsylvania Law Weekly (Nov. 27, 2012).

Judge Minora of Lackawanna County Allows Addition of Punitive Damages Allegations After Expiration of Statute of Limitations

In his recent decision in the case of Strain v. Cianni, PICS Case No. 12-2200 (C.P. Lacka. Co. Nov. 5, 2012 Minora, J.), Lackawanna County Court of Common Pleas Judge Carmen D. Minora allowed a Plaintiff to amend the Complaint to add punitive damages after the statute of limitations had run where the Plaintiff had already previously asserted in the original Complaint allegations of willful, wanton, and reckless conduct. 

Judge Carmen D. Minora
Lackawanna County
In the decision granting the Plaintiff’s Motion to Amend, the court ruled that the punitive damages claim in this matter was not a new cause of action and the Defendants would not be prejudice by the allowance of the amendment. 

 In this case arising out of a claim for wrongful death and survival action pertaining to the death of a decedent under allegations that her death was preventable but that the Defendants allegedly did not monitor or respond to her illness in an appropriate manner, the Plaintiff had originally filed a Complaint containing allegations of willful, wanton, and reckless conduct.   The Plaintiffs were seeking to amend their Complaint to specifically add the claim of punitive damages in an effort to avoid confusion.  

 Applying Pa. R.C.P.  1033, the court determined that there would be no statute of limitations issue regarding the addition of further allegations necessary to specifically state the claim of punitive damages where the original Complaint adequately plead the underlying averments required.  

Here, the court found that the proposed amendment did not change the cause of action but merely amplified what had already been averred.   As such, the fact that the statute of limitations had expired was of no moment under these circumstances.  

The court also noted that the Plaintiff’s amendment would not prejudice the Defendant because a request for punitive damages did not constitute a cause of action but was merely incidental to a previously stated cause of action.

Accordingly, the Plaintiff’s Motion to Amend was permitted.

Anyone desiring a copy of Judge Minora's decision in Strain v. Cianni may contact me at dancummins@comcast.net.

Source:  "Case Digests."  Pennsylvania Law Weekly (Nov. 27, 2012).

Judge Nealon Applies Attorney's Fees Statute

In his recent decision in the case of Lilac Meadows Inc. v. Panko, No. 2011-CV-4375 (C.P. Lacka. Co. Nov. 9, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s request for counsel’s fees after the Defendant’s demurrer to the Plaintiff’s Complaint was sustained. The Defendant’s request for counsel’s fees was based upon an argument that the Plaintiff had acted arbitrarily, vexatiously and in bad faith in filing the suit against the prevailing Defendant.

The court's decision was governed by the attorney’s fees statute found at 42 Pa. C.S.A. §2503(9).  Section 2503(9) of the judicial code provides for the recovery of counsel fees as part of taxable costs where “the
conduct of an other party in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith.”

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon noted that, because §2503(9) “reads in the disjunctive,” a trial court need only finds that one of the statutory factors was present, i.e., that the action was initiated arbitrarily, vexatiously, or in bad faith. [citation omitted].

The Court noted that a litigant’s conduct could be deemed to be “arbitrary” under §2503(9) “if such conduct is based on random or convenient selection or choice rather than on reason or nature.” [citations omitted].

The Court stated that a party is considered to have brought a suit “vexatiously” if (1) the suit was filed without sufficient ground in either law or in fact, and (2) the suit served the sole purpose of causing annoyance. [citations omitted].

Judge Nealon also pointed to case law holding that a party is chargeable with filing a lawsuit in “bad faith” if the party commences suit for the purposes of fraud, dishonesty, or corruption. [citations omitted].

After applying the law to the record before it, the Court ruled that the Defendant had not satisfied its burden of establishing that the Plaintiff’s actions in filing and pursuing the claim at issue were either arbitrary, vexatious, or in bad faith. Accordingly, the Petition for Attorney’s Fees was denied.

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

Wednesday, December 5, 2012

PLEASE MARK YOUR CALENDAR FOR THE TORT TALK EXPO 2013

Please consider breaking in your new 2013 calendars by marking down the Tort Talk Expo 2013 CLE Seminar set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania on April 18, 2013.  Here are the details:



TORT TALK EXPO 2013 CLE SEMINAR


Presented by
and



Daniel E. Cummins, Esquire
FOLEY, COMERFORD & CUMMINS


at the


MOHEGAN SUN CASINO at POCONO DOWNS


Thursday, April 18, 2013


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


2 Substantive & 1 Ethics CLE Credits


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



CLE CREDITS - DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES




12:30 – 1:00 pm: REGISTRATION



1:00 – 2:30 pm: THE BIG 80s: AN UPDATE WITH A 1980s FLAVOR



--1:00 – 1:45 pm: THE TORT TALK AUTO LAW UPDATE
Presenter:
Daniel E. Cummins, Esq.
Foley, Comerford & Cummins

--1:45 – 2:30 pm: THE TORT TALK CIVIL LITIGATION UPDATE
Presenters:
Malcolm L. MacGregor, Esq.
Michael J. McDonald, Esq.
McDonald & MacGregor Law Firm




2:30 – 2:45 pm: BREAK


2:45 - 3:45 pm: DIAGNOSIS AND TREATMENT OF SHOULDER AND KNEE INJURIES
Presenter:
Dr. John Kline, Physiatrist
Northeastern Rehabilitation Associates


3:45 – 4:00 pm: BREAK


4:00 – 4:30 pm: A VIEW FROM THE BENCH: CANDOR WITH THE COURT AT SETTLEMENT CONFERENCES
Presenters:
Lackawanna County Judge Carmen D. Minora
Luzerne County Judge Michael T. Vough



COMPLIMENTARY COCKTAIL RECEPTION
TO FOLLOW AT BREAKERS


COST:

CLAIMS PROFESSIONALS - $25.00

ATTORNEYS - $175.00

Contact Dan Cummins at dancummins@comcast.net or 570-346-0745
for more information or to register.
 


Tuesday, December 4, 2012

Another Facebook Discovery Decision





In the Indiana County case of Simms v. Lewis, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case.

According to the Opinion, the Plaintiff alleged injuries to her head, neck, and back as a result of the motor vehicle accident all of which injuries were alleged to be, or possibly be, serious and permanent in nature.

During discovery, it was determined that the Plaintiff had Facebook, myYearbook, and MySpace accounts, and that each account was active following the accident.  When Plaintiff refused the defense's requested access to the private portions of the Plaintiff's social networking accounts by way of the production of the Plaintiff's user names and passwords, a motion to compel was filed.

The court noted that, in his motion, the Defendant asserted that the front page of the Plaintiff's myYearbook account contained a reference to the Plaintiff's plan to participate in a Zumba exercise class.

In his October 10, 2012 Opinion, Judge Bianco noted that, as of that date [and as of today's date, I note], there has been no appellate decision on this particular issue.  As such, Judge Bianco noted that a number of trial court decisions from around the state have addressed this issue.  In his Opinion, Judge Bianco specifically referenced the Zimmerman v. Weis Markets, Inc. trial court decision out of Northumberland County.

Judge Bianco noted that, by virtue of her allegations in her Complaint in this personal injury matter, the Plaintiff had placed her physical condition at issue.  Accordingly, the court held that the Defendant was entitled to conduct discovery in an effort to obtain information relevant and related to the cause of action stated, which according to Judge Bianco, in today's society may include access to a party's social networking sites.

Where, as here, the defense had made a threshold showing (i.e. the reference to attending Zumba class in the public portions of the Plaintiff's social media sites), the court found that it was "reasonable to infer that the non-public portion of the Plaintiff's account may contain additional relevant evidence."

The court in this case of Simms rejected the Plaintiff's expectation of privacy argument by noting that "the purpose of social networking sites is to share information."  The court ruled that a "Plaintiff cannot maintain a reasonable expectation of privacy  when she created the account and voluntarily posted this information, knowing that the information could become publicly available."

Accordingly, the court held that the Defendant had made a proper threshold showing that access to the Plaintiff's myYearbook account could lead to the discovery of additional relevant information.  As such, access was allowed to this particular account.  The court ordered the parties to meet within 60 days at which meeting the Plaintiff would access her myYearbook account in the presence of defense counsel for a review of the content of the account.

Judge Bianco denied the Defendant's motion to compel access to the Plaintiff's Facebook and MySpace pages on account of the fact that the Defendant had not met the threshold showing for those accounts.  The court noted that, if such a threshold showing was made by the Defendant to support a request for access to the non-public portions of those other accounts, the motion to compel would then be granted.

Anyone wishing to review this Opinion in the Indiana County case of Simms v. Lewis may click HERE.

REMEMBER:  The FACEBOOK DISCOVERY SCORECARD can always be accessed down on the right hand column of Tort Talk at www.TortTalk.com.  Also, when you get to that Scorecard, you can click on the case names to access the actual opinions/orders online.

I send thanks to Attorney Mathew G. Simon of the Indiana, Pennsylvania law firm of Simpson, Kablack & Bell, LLC.


Source of imagewww.mindjumpers.com