Sunday, March 31, 2013


Please consider registering for fast-approaching April 18, 2013 TORT TALK EXPO 2013 CLE SEMINAR at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.


Third Circuit Chooses Substance Over Form In UIM Rejection Case

Tort Talkers may recall previous posts here, and even an article, outlining the numerous Pennsylvania cases holding that UM/UIM rejection forms are required to follow the mandates of the applicable statute (75 Pa.C.S.A. Section 1731) to the letter in order to be upheld as valid.  Here is a LINK to my article on this topic entitled "Rejecting the Rejection."

The courts that have ruled on this issue to date have strictly applied the statute to the point that the addition or deletion of even one word to the mandated form has been deemed to render the rejection form invalid. Among the courts that have followed the state court decisions in ruling in this strict manner was the Federal Eastern District Court in the case of Robinson v. Travelers Indemnity Co. of America. 

That decision however was vacated and reversed late last week by the United States Court of Appeals for the Third Circuit in a non-precedential Opinion issued in in Robinson v. Travelers Indemnity Company of America, No. 12-1888 (3rd Cir. March 21, 2013)(Rendell, Ambro, Vanaskie, J.J.)(Opinion by Rendell, J.)(marked non-precedential).

In this case, the underinsured motorist waiver form at issue contained the additional word of "motorist" in the phrase "underinsured coverage."  The word "motorist" is not found in the form mandated by the statutory language. 

The Claimant asserted that the inclusion of the additional word invalidated the form under Section 1731 of the MVFRL because it was not in specific compliance with the MVFRL.  As noted above, this argument was accepted as valid by the Eastern Federal District Court which invalidated the rejection form and ruled that the Claimant was entitled to UIM coverage.

In a non-precedential Opinion, the The Third Circuit reversed and ruled that the addition of the word "motorists" to the form served to clarify the wording of the form.  The Third Circuit stated that it did not desire to "elevate form over substance in a hyperliteral interpretation" of the law. 

Anyone wishing to review this decision may click HERE.

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

Thursday, March 28, 2013


This morning I participated as a presenter at the CLE seminar entitled "Ipad for Lawyers."  The seminar took place in Scranton, PA and featured JP Cardoni and Leah Cardoni of Exhibit A, a digital pre-trial and trial support company, along with Attorney Melissa Scartelli of the Scranton, PA law office of Scartelli & Olszewski.
In conjunction with that presentation, I thought I would reprint my article below on the power of powerpoint presentations at trial.

Computer-powered case presentation may be a necessity to persuade today’s juries


Daniel E. Cummins, Esquire

In today’s society, computer powered presentations and displays are seen everywhere one looks.  With the world’s reliance on the internet for information, it seems as if no data or news is disseminated anymore without some colorful and eye-catching computer graphics.  In other words, the idea of a future world where information is provided primarily through the use of computers has arrived.

As such, when jurors are summoned to the courtroom in this day and age, they may come with the expectation that the case will be presented in a manner that is consistent with how they receive all of their other information in society, i.e. in a visually stimulating and computer generated fashion.  An attorney who instead simply presents as a dull talking head who relies on index cards or notes along with enlarged exhibits on posterboard may thereby sorely disappoint jurors to the detriment of his or her client.

Accordingly, there has been increasing trend in civil litigation in the use of computer generated presentations at mediations, binding arbitrations, and trials in both the federal and state court contexts.  As a result, various companies offering computer consulting services to litigators have prospered across the Commonwealth.

 One such company, Exhibit A, is run by Joe Cardoni with offices in Northeastern Pennsylvania, Philadelphia, and New Jersey.  Cardoni and his colleagues have been in the business of providing digital services to attorneys for the past nine years and have participated in hundreds of trials and ADR proceedings.  The following review of the increasing use of computer services in civil litigation matters is generated from an interview with Joe Cardoni as well as from prior personal experience in the use of computer powered presentations at trial.

 Computer Friendly Cases

Obviously, not every case demands a computer powered presentation.  Although demonstrative exhibits should still be used in simple cases of clear liability and straightforward damages, such cases may not require a computer generated presentation from either a plaintiff or defense perspective.

In terms of a proper case for a computer powered presentation on the plaintiff’s side, Cardoni noted that cases involving photos showing significant property damages or graphic personal injuries may benefit from the use of computer graphics.  Additionally, in cases having a lack of a prior medical history and/or a lengthy and continuous post-accident treatment history, the use of a timeline in a powerpoint display can be visually compelling way to convey to the jury that all of the plaintiff’s damages are all related entirely to the subject accident.

On the defense side, automobile accident cases with liability issues may benefit from the use of photographs of the accident scene or photos depicting minimal property damages through a powerpoint presentation or the Trial Director computer program in an effort to bring the liability defense to life.  Also, cases involving soft tissue injuries with minimal treatment, or gaps in treatment, can be emphasized through a defense-oriented timeline up on the big screen for all the jury to see.

Projected Costs

Cardoni estimated that the cost for a powerpoint presentation could range from $2500 in simple matters, such as a one day mediation or arbitration, to a range of $8500 or more for a complex multi-day trial.

Obviously, the consulting fee includes a series of pre-trial collaborative meetings with the attorney to create the presentation, the setting up of all of the necessary equipment, as well as the consultant’s attendance and technical support during the proceedings.  With the computer consultant providing a high quality viewing of materials for all to see in the courtroom through the use of a high-resolution notebook computer, a data projector, as well as a document camera, the trial attorney is given the freedom to command center stage in front of this colorful and visually stimulating big screen presentation.

‘But I’m Not Computer Literate’

An attorney’s fear of technology should not serve as a roadblock to the opportunity for a better result on behalf of the client through the use of computers.  Cardoni emphasizes that, when working with a company such as Exhibit A to prepare a powerpoint display or computer generated presentation, the attorney will never have to even touch a computer if he or she does not want to. 

Rather, the role of an attorney in preparing the presentation is the same as if computers were not going to be used.  The trial attorney will still focus all of his or her attention and energy on fully preparing the case for trial.  With or without computer powered displays, the attorney will still have to come up with a theory of the case and gather and highlight any and all exhibits in support of that theory.  The use of powerpoint and other computer programs designed for trial use simply allows for a more visually compelling presentation of the case. 

In fact, Cardoni noted that the attorney should not even meet with a computer consultant until he or she has finalized the theory of the case presented and gathered the appropriate exhibits.  Once an attorney’s case-in-chief is in “first draft” form, a meeting can be scheduled with a consultant about two weeks or so before trial to review how to apply the case to a computer presentation.  At that point, the consultant will get to work on scanning the necessary documents, creating a digital archive, preparing relevant highlights and creating demonstrative exhibits in an effort to bring the case to life.

Cardoni additionally noted that, during the course of the actual trial, the attorney again will not be required to worry about the equipment or in any way work a computer.  Rather, it is the job of the computer consultant to set up the computer, the screens, and all the necessary wiring in the courtroom.  It is also the job of the consultant to remain at trial at counsel’s table to work the computer and pull up documents and exhibits onto the big screen as the attorney presents the case and questions the witnesses.  In this way, the attorney remains free to channel all of his energies on presenting the case in the most compelling and entertaining fashion.

Another beautiful thing about the use of computers in the courtroom is the ability of the consultant to immediately scan and display up on the big screen a document that suddenly becomes relevant during the course of the actual trial.  This clean maneuver of displaying a new document to the jury will take the place of an attorney scrambling to have the document blown up as a posterboard exhibit overnight or the time-consuming and momentum-ending process of producing the document to the jury by having it passed from juror to juror.

 Allowance by Court

Another factor in determining whether to retain a computer consultant is the extent to which the judge presiding over the trial will allow such a presentation.

The computer generated presentation can be considered to be a form of demonstrative evidence and the finalized work product can be marked as an exhibit.

Whether or not an attorney will be allowed to use the powerpoint or computer presentation during opening statements usually depends upon the judge.  More innovative judges will typically allow the computer generated presentation to be used during openings, assuming everything in the presentation will be placed in evidence during the course of the trial.

Cardoni noted that, in his experience, a proven analogy used to convince judges to allow for the use of computer generated information is the argument that having bullet points appear up on a screen through the computer is the same as if the attorney was writing on an easel.  The use of computer generated bullet points will surely prove to be faster and easier to read.

Other judges may, within their discretion, and with the presumable goal of keeping opening statements shorter, preclude the use of computer generated displays during an attorney’s initial address to the jury.  Still other judges may allow its use during openings only when there is an agreement between counsel that demonstrative exhibits can be used at that time.

Once the trial is underway, attorneys will usually have free rein to use the powerpoint and other computer programs during the direct and cross-examinations of witnesses as well as during closing argument.  The proviso is, of course, that anything being displayed up on the screen by the computer consultant to the jury is properly stated and displayed, is admissible, and has been previously disclosed to the opposing counsel. 

As a professional courtesy and in an effort to avoid any interruptive objections, the attorney using a computer presentation may be wise to first attempt to clear with opposing counsel the particular uses of the powerpoint and other computer programs anticipated during the trial. 

Uses At Trial

Cardoni reviewed the many ways a computer presentation can be used as an effective tool at trial or ADR proceedings to present one’s case to the jury in a more vivid and memorable fashion.

As noted above, timelines may be utilized to visually display to the jury the injured party’s prior medical history, or lack thereof, as well as the extent of the post-accident treatment.  In addition to laying out the various important dates on the timeline, the powerpoint presentation also allows an attorney to have the corresponding documents be brought to the screen immediately while discussing that timeline event, such as an emergency room record, or a treatment note.  In this way, the jurors will be more likely to stay with the argument as you move along rather than zoning out due to information overload.

Even better, under the Trial Director computer program, the consultant will be able to immediately magnify and yellow highlight the pertinent portions of the documents being displayed so as to drive the attorney’s specific point home to the jury.  This software also allows the computer consultant to display two or more documents simultaneously as may be necessary to compare and contrast evidence, or support or discredit a witness’s testimony.

Another effective tool, for both the plaintiff and the defense side, is the use of calendars to show post-accident treatment histories.  With all twelve months of a calendar year placed up on the screen on a single page in a concise fashion, the consultant can mark each date of treatment with colored dots, including a different color for each doctor or physical therapy visit. 

In this manner, a plaintiff’s attorney with a client who has treated frequently and consistently, may end up with a calendar year that is as chock full and colorful as a gumball machine, thereby visually conveying to the jury in a compelling fashion the extensive medical treatment completed by the plaintiff as a result of an accident. 

Conversely, a defense attorney may utilize the same device to show few colored dots spread out in a wide fashion for a plaintiff who has had minimal treatment, or who has large gaps in treatment.  Through this clear display of minimal or sporadic treatment, the defense counsel may visually call into serious question the plaintiff’s claims of great pain and suffering.

Cardoni also noted that the computer consultant should have the ability to create 3D models of objects involved in the litigation as well as animations as to how the injury-causing event occurred.   Whether these items will be allowed into evidence during trial may become an issue.  Certainly, in the less formal ADR mediation and arbitration proceedings, such displays are generally permitted.

It was additionally noted that the computer consultant should also have technical ability to play back video depositions and surveillance tapes.  In this manner, the party may save on the cost of separately retaining another video playback company to appear at trial.  The video playback by a computer consultant can also have the additional benefits of including closed captioning, cuts to screens showing and highlighting the actual documents being referred to by the expert during his testimony, as well as the creation of clips of the important parts of the testimony to be played back during closing argument.

Last but certainly not least, the trial attorney can also benefit from having a computer consultant at his side at trial in that the consultant can keep an eye on the tone of the jury when the attorney is otherwise preoccupied with the case.  The attorney may also secure from the layperson computer consultant his viewpoint on how the case is going and what changes in strategy may be advisable based upon what has already developed during the course of the trial up through the time of closing argument.

Closing Argument

The most compelling use of a computer generated presentation at trial will come during the closing argument.

As stated, information is generally disseminated nowadays in a visual, computer-powered fashion.  Today’s younger generations, i.e. tomorrow’s jurors, are totally immersed in computer generated information sources at work, at school, and at home.  Without rapid fire, visually stimulating blips of information, these tech-savvy jurors may simply tune out and daydream the trial away and thereby reach the deliberation room to decide the case in a manner not based in any way on one’s presentation of the evidence in the courtroom.

 Additionally, it has been said that people generally retain about 25% of what they hear, 30% of what they see, and an impressive 50% of what they both hear and see.  In courtrooms where a judge allows jurors to take notes, the retention rate could be has high as 80-85% with the use of a computer powered presentation.  By using powerpoint for openings and closings the jury will obviously hear and see information a piece at a time as they follow along in the presentation of the case. 

During closing argument, all of the forms of a computer generated presentation noted above that may have appeared during the course of the trial can be reiterated in a single, coherent and memorable fashion for all the jury to see, hear and, most importantly, retain in their memory. 

Even better, the digital presentation displayed up on the screen as a timeline or in the form of bullet points of information can serve as the attorney’s notes, enabling counsel to present the closing argument free from reliance on any notes.  The closing argument will flow through the courtroom in a more forceful and credible fashion as the jurors not only listen to counsel’s argument but also see it unfold before them up on the large video screen in an unforgettable fashion.

Thus, there should be no question about the importance of computer powerpoint presentations in the courtroom, particularly with respect to closing argument where counsel has the widest latitude to make his last pitch to persuade the jury, arbitrator, or mediator to accept the theory of the case presented. 

Surely, an attorney utilizing a computer powered presentation in support of his client’s case will appear to present the more visually compelling case than an attorney who does not.  In today’s computer age, where the computer oriented transfer of information is the norm, sometimes that may be all it takes to win a trial or ADR proceeding. 


Daniel E. Cummins, Esquire is an insurance defense attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins (  In addition to being a civil litigation columnist with the Pennsylvania Law Weekly, Attorney Cummins also writes for his blog entitled Tort Talk (, which provides updates on Pennsylvania law.

This article is reprinted here, with permission, from the August 25, 2008 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC.  Further duplication without permission is prohibited. All rights reserved.

Tuesday, March 26, 2013

Pennsylvania Supreme Court to Address Proper Restatement Analysis for Products Liability Cases

The Pennsylvania Supreme Court has accepted an appeal in the case of Tincher v. Omega Flex, No. 842 MAL 2012 (Pa. March 26, 2013) to specifically address the issue of whether the Restatement (Second) or the Restatement (Third) standards govern Pennsylvania products liability cases.  Click this LINK to view the Order.

In its Order accepting the appeal, the Court wrote, in pertinent part, as follows:

"AND NOW, this 26th day of March 2013, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. . . .

The issue, slightly rephrased, is:

Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.

In addition, the parties are directed to brief the question of whether, if the Court were to adopt the Third Restatement, that holding should be applied prospectively or retroactively."

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith and the great Drug and Device Law Blog for this tip.  I also thank Attorney Kenneth T. Newman of Thomas, Thomas & Hafer, and Attorney Francis P. Burns III of the Philadelphia law firm of Lavin, O'Neil, Ricci, Cedrone & DeSipio for sending this my way too.


Here is a LINK to my recent article published in the Westlaw Journal: Automotive outlining the current status (as of January, 2013) of the split of authority amongst the Pennsylvania courts on the issue of whether products liability cases should be governed by the Restatement (Second) analysis or the Restatement (Third) analysis.

This article was previously published in the Westlaw Journal: Automotive, Vol. 32, Issue 17 (Feb. 12, 2013) and is reprinted at the link with permission.



Scranton, PA

[UPDATED January 15, 2015]

DANIEL E. CUMMINS, ESQUIRE is an AV-rated insurance defense attorney with the Scranton, Pennsylvania law firm of FOLEY, COMERFORD & CUMMINS.

In addition to being a civil litigator, he also writes a regular column for the Pennsylvania Law Weekly on important cases and emerging trends under Pennsylvania law.  He is also the former author of the annual Supplement for The Pennsylvania Trial Advocacy Handbook.

One of those emerging issues in Pennsylvania civil litigation has to do with whether Pennsylvania products liability cases should be analyzed under a Restatement (Second) analysis or a Restatement (Third) analysis. Here's an updated list of the conflicting Pennsylvania State Supreme Court and Federal cases uncovered to date on the issue.

I have created a link on the right hand column of Tort Talk ( entitled "Products Liability Restatement Scorecard" that will be continually updated. The Scorecard will remain up on the blog for you to click whenever you need this information. Just click on the date below "Products Liability Restatement Scorecard" to access the Scorecard at any time.

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

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



Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.)(Pennsylvania Supreme Court overrules Azzarella, confirms that Restatement (Second) of Torts still applies, and provides proper analysis to be applied in Pennsylvania products cases.  The Pennsylvania Supreme Court's majority Opinion in Tincher can be viewed HERE.  The Dissenting and Concurring Opinion by Justice, now Chief Justice, Saylor can be viewed at this LINK


Cancelleri v. Ford Motor Co., No. 2011-CV-6060 (C.P. Lacka. Co. Jan. 9, 2015 Gibbons, J.)(Judge Gibbons of Lackawanna County appears to be the first trial court judge to apply the Tincher ruling;  defense request for application of Restatement (Third) denied and, instead, Restatement (Second) of Torts applied as mandated by Tincher.)


Restatement (Second) of Torts (1965)

Section 402A of the Restatement (Second) of Torts, which first came back into play in 1965, provides, in pertinent part, that “[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer” may be held strictly liable to the injured party even if the “seller has exercised all possible care in the preparation and sale of this product."

Generally speaking, under the Restatement (Second) of Torts analysis, manufacturer defendants are held to be strictly liable for any manufacturing defects in their products. 

With regards to design defect claims, since approximately 1984, the Pennsylvania courts have used a risk-utility analysis to initially determine, as a matter of law, whether a product may be considered by the jury to be defective.   Daumbacher v. Mallis, 485 A.2d 423, n. 6 (Pa.Super. 1984) and Surace v. Caterpillar, Inc. 111 F.2d 1039 (3d Cir. 1997).  If the case makes it beyond this threshold finding, the matter will be permitted to proceed to the jury for a determination as to whether a product’s design was defective and the cause of the injury alleged.  Id.

Restatement (Third) of Torts (1998)

Under Section 2 of the Restatement (Third) of Torts, recognized product defects that may subject a defendant to liability include (1) manufacturing defects, (2) design defects, and (3) failure to warn defects.

In Section 2 of the Restatement (Third) of Torts, the definition of a manufacturing defect is essentially identical to that contained in the Restatement (Second), i.e., strict liability is owed to the injured party for any injuries caused by a manufacturing defect of the product.

However, in contrast to the principles espoused under the Restatement (Second) of Torts, claims asserting a design defect or a failure to warn are to be analyzed with reference to certain negligence principles and concepts delineated under the Restatement (Third) of Torts.

For example, the Restatement (Third) of Torts: Products Liability, § 2(b) states, in pertinent part, that a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and that the omission of the alternative design renders the product not reasonably safe.

Stated otherwise, while the analysis of design defect cases under the Restatement (Second) of Torts focuses on the actual design of the product, the basis for liability under the Restatement (Third) of Torts in this context includes a consideration of the reasonableness of the defendant’s conduct. Essentially, while Restatement (Second) standard focuses on an intended user making an intended use of the product, the Restatement (Third) places the emphasis of the analysis on the foreseeable risks of harm and whether an alternative design could have minimized or eliminated that risk.

Another difference with the Restatement (Third) of Torts in the products liability context is that, under Restatement (Third) analysis, the plaintiff’s own acts or omissions, i.e., contributory negligence, are made an important part of the analysis of whether or not a product should be determined to be defectively designed.

Pennsylvania State Supreme Court

Webb v. Zern, 220 A.2d 853 (Pa.1966)(Pennsylvania Supreme Court adopts Restatement (Second) of Torts as the appropriate standard for Pennsylvania Products Liability cases).

Phillips v. Cricket Lighters, 841 A.2d 1000, 1012, 1019 (Pa. 2003)(In his concurring Opinion, Justice Saylor suggests the need to consider the Restatement (Third) in products cases).

Bugosh v. I.U. North America, Inc., 942 A.2d 897 (Pa. 2008) appeal dismissed as improvidently granted 971 A.2d 1228, 1229 (Pa. 2009)(Pennsylvania Supreme Court agrees to decide the Restatement (Second) versus (Third) debate but then dismisses the appeal as improvidently granted.).

Schmidt v. Boardman Co., 11 A.3d 924 (Pa. 2011)(Pennsylvania Supreme Court acknowledged that “foundational problems” existed in Pennsylvania products liability law based upon the Restatement (Second) of Torts. However, the court noted that the case before it was not selected to address those “foundational concerns.”  References Third Circuit's prediction in Berrier but does not decide issue.).

Beard v. Johnson & Johnson, 41 A.3d 823 (Pa. 2012) (Most recent on-point pronouncement by Pennsylvania Supreme Court on the Restatement (Second) versus (Third) debate in which the court reiterated, as it has since 1966, that the standards set forth in § 402A of the Restatement (Second) of Torts are to be applied in Pennsylvania products liability cases.).

Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012)(A shorthanded Pennsylvania Supreme Court issued a 5-1 decision recognizing that "highly reckless" conduct is an affirmative defense in products liability cases under which defendants could attempt to avoid liability by showing that a plaintiff's highly reckless conduct was the sole or superseding cause of the plaintiff's injuries. In so ruling, the majority, in an opinion written by Justice Max Baer, relied, in part, upon Section 402A of the Restatement (Second) of Torts, evidencing continuing viability of that standard).

Lance v. Wyeth, ___ A.3d ___ (Pa. Jan. 21, 2014)(Split court addresses products liability issues and the result of this case calls into question whether the Pennsylvania Supreme Court would fully adopt the Restatement (Third) if squarely faced with the issue.).

Pending before Pennsylvania Supreme Court: 

Tincher v. Omega Flex, No. 842 MAL 2012 (Pa. March 26, 2013)(Court granted allocatur to specifically address the issue of whether the Restatement (Second) or the Restatement (Third) standards govern Pennsylvania products liability cases.  Argument in the Supreme Court on the appeal was held on October 15, 2013.)

U.S. Third Circuit Court of Appeals

Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009)(Third Circuit, seeing that the Pennsylvania Supreme Court has agreed to decide the issue in the case of Bugosh v. I.U. North America, Inc. predicts that the Pennsylvania Supreme Court will adopt the Restatement (Third) analysis.  Pennsylvania Supreme Court thereafter dismissed the appeal in Bugosh as improvidently granted and, even later in 2012, reaffirms the Restatement (Second) in Beard v. Johnson & Johnson.).

Covell v. Bell Sports, Inc., 651 F.3d 357, 365 (3d Cir. 2011)(In this decision, which is after the dismissal of the appeal by the Pennsylvania Supreme Court in Bugosh and before the Pennsylvania Supreme Court's reaffirmation of the Restatement (Second) as the proper standard in Beard v. Johnson & Johnson, the Third Circuit Court of Appeals again predicts that the Pennsylvania Supreme Court would adopt the Restatement (Third).  As noted, the Supreme Court declined to do so in its subsequent decision in Beard.).

Sikkelee v. Precision Automotive, 2012 U.S. App. LEXIS 22185, n. 1 (3d Cir. 2012)(In a footnote in a decision clarifying its denial of an appeal, the Third Circuit again suggests that the Restatement (Third) is the proper standard for Pennsylvania products liability cases despite Pennsylvania Supreme Court decisions stating otherwise.).

The U.S. Federal Court for the Eastern District of Pennsylvania

Decisions in Favor of Restatement (Second)

Thompson v. Med-Mizer, Inc., 10-CV-2058, 2011 WL 1085621 (E.D. Pa. 2011 Gardner, J.)(In choosing to follow the Restatement (Second) analysis, Judge Gardner states, “This court is not required to follow the Third Circuit's prediction where ‘the state's highest court issues a decision contradicting that prediction or state intermediate appellate court's decisions subsequently indicate that prediction has not come to pass.’ ”) citing Sweitzer v. Oxmaster, Inc., 2010 WL 5257226, at *3–4 (E.D.Pa. 2010 Pratter, J .) and Durkot v. Tesco Equipment, LLC, 654 F.Supp.2d 295, 298–299 (E .D. Pa.2009 Hart, M.J.)

But see: Thompson v. Med-Mizer, Inc., 10-CV-2058, 2011 WL 1085621 (E.D. Pa. 2012 Perkin, M.J.)(Magistrate Judge Perkin took case over and ruled in favor of applying Restatement (Third) in light of Third Circuit's more recent Order issued in Sikkelee case).

Carpenter v. Shu-Bee's, Inc., CIV.A. 10-0734, 2012 WL 2740896 (E.D. Pa. 2012 Perkin, M.J.)(Magistrate Judge Perkin follows Restatement (Second)).

Decisions in Favor of Restatement (Third)

Reardon v. Illinois Tool Works, Inc., PICS Case No. 13-0891 (E.D Pa. April 10, 2013 Yohn, J.), (Judge Yohn of the Eastern District Federal Court chose to apply the Restatement (Third) of Torts in deciding a Defendant’s Motion to Exclude Expert Testimony and For Summary Judgment.  Ultimately, with the application of the Restatement (Third) to the facts of this case, the court denied the Defendant’s motion.).

Kordek v. Becton, Dickinson & Co.,  2013 WL 420332 (E.D. 2013)(Judge Mary A. McLaughlin applies Restatement (Third) of Torts as supported by Third Circuit Court of Appeals' decisions predicting that Pennsylvania Supreme Court will adopt Restatement (Third)).

Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 364-65 (E.D. Pa. 2010 Tucker, J.) (Judge Petrese B. Tucker of the Eastern District Federal Court of Pennsylvania, noting that, as of that time, the Pennsylvania Supreme Court had dismissed the appeal in Bugosh without deciding the issue, opted to follow the Third Circuit Court of Appeals reference to the Restatement (Third) in Berrier as “binding precedent.” In so ruling, Judge Tucker cited Richetta v. Stanley, 661 F.Supp.2d 500 (E.D. Pa. 2009 Golden, J.), and Martinez v. Skirmish, U.S.A., Inc., 2009 WL 1437624 (E.D. Pa. 2009 Padova, J.) with approval.).

Xia Zhao v. Skinner Engine Co., 2:11-CV-07514-WY, 2012 WL 5451817 (E.D. Pa. 2012 Yohn, J.)(Judge Yohn chooses to follow Third Circuit prediction on Restatement (Third).).

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

Decisions in Favor of Restatement (Second)

Gilmore v. Ford Motor Co., No. 2-12-CV-00547 (W.D.Pa. 2013 Schwab, J.)(Judge Arthur J. Schwab applies Restatement (Second) of Torts).

Gross v. Stryker, 858 F.Supp.2d 466 (W.D.Pa. 2012 Fischer, J.)(Judge Nora Barry Fischer elects to follow Restatement (Second).).

Konold v. Superior International Industries, 2012 U.S. Dist. LEXIS 156200 (W.D.Pa. 2012 Schwab, J.)(Judge Arthur J. Schwab applies Restatement (Second) of Torts).

Schif v. Hurwitz, 2012 WL 1828035 (W.D.Pa. 2012 Schwab, J.)(Judge Arthur J. Schwab applies Restatement (Second) of Torts).

Decisions in Favor of Restatement (Third)

Morris v. Phoenix Installation & Management Co., 2013 U.S. Dist. Lexis 181018 (W.D. Pa. Dec. 30, 2013 Bissoon, J.) (Judge Cathy Bissoon applies the Third Restatement applies to product liability actions in Pennsylvania but rules that it is unclear as to whether the assumption of risk doctrine applies under that Third Restatement in these types of cases.), 

Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 103734 (W.D.Pa. 2012 Hornak, J.)(Judge Mark R. Hornak applies Restatement (Third) under Third Circuit's predictions).

Lynn v. Yamaha Golf-Car, 2012 U.S. Dist. LEXIS 115936 (W.D.Pa. 2012 Hornak, J.)(Judge Mark R. Hornak applies Restatement (Third) under Third Circuit's predictions).

Zollars v. Troy-Built, 2012 U.S. Dist. LEXIS 148614 (W.D.Pa. 2012 Ambrose, J.).)(Judge Donetta W. Ambrose applies Restatement (Third) under Third Circuit's predictions).

Spowal v. ITW Food Equipment Group, 2012 U.S. Dist. LEXIS 47614 (W.D.Pa. 2012 Cohill, J.)..)(Judge Maurice Cohill applies Restatement (Third) under Third Circuit's predictions).

The U.S. Federal Court for the Middle District of Pennsylvania

Decisions in Favor of Restatement (Second)

Sikkelee v. Precision Automotive,  876 F.Supp.2d 479 (M.D.Pa. 2012)(Judge Johne E. Jones, III chose to instead follow the Restatement (Second) in products liability cases contrary to the Third Circuit's predictions.  Judge Jones respectfully noted that federal district courts are not required to follow predictions by the Third Circuit where that prediction does not appear to have been realized in state court precedent.  Leave to appeal denied 2012 WL 4953074 (3d Cir. 2012), Rehearing and Rehearing in Banc denied 2012 WL 5077571 (3d Cir. 2012)(Third Circuit issues short opinion in which it invokes doctrine of stare decisis and again stands by its prediction that Restatement (Third) will be adopted).

Decisions in Favor of Restatement (Third)

Varner v. MHS, Ltd.,No. 3:11-2138 (M.D. Pa. March 6, 2014, Mannion, J.)(Judge Malachy Mannion applied the Restatement (Third) in a products liability action arising from an incident during which the Plaintiff was injured at work while using a nylon strap or sling to lift heavy equipment.  Defendant's motion for summary judgment granted in part and denied in part).

Lynch v. Gander Mountain Co., 2013 U.S. Dist. Lexis 121322 (M.D. Pa. Aug. 27, 2013 Caputo, J.), (Judge Caputo found that because the Third Restatement of Torts should be applied, the defendant's motion to dismiss a count in plaintiff’s Complaint asserting strict liability under Restatement Second §402A was granted.  However, the court separately found that the Plaintiff had sufficiently stated a claim for breach of warranty of merchantability and breach of warranty of fitness for a particular purpose.  As such, the defendant's motion to dismiss those counts were denied.).

Vaskas v. Kenworth, 3:10 CV-1024, 2013 WL 101612  (M.D. Pa. 2013 Caputo, J.)(Judge A. Richard Caputo follows precedent of Third Circuit prediction in favor of Restatement (Third).)(In an Opinion, on Motion for Reconsideration, Judge Caputo reiterated his prior ruling under the Third Restatement and applied it to enter summary judgment on the negligence claims as well.).

Giehl v. Terex Utilities, CIV.A. 3:12-0083, 2012 WL 1183719 (M.D. Pa. 2012 Caputo, J.)(Judge A. Richard Caputo follows precedent of Third Circuit prediction in favor of Restatement (Third).).

Monday, March 25, 2013

Regular Use Exclusion Upheld Yet Again

The Pennsylvania Superior Court has upheld the "regular use" exclusion again in its non-precedential unpublished memorandum decision from last week in the case of Progressive Preferred Ins. Co. v. Kalmanowicz, No. 848 MDA 2012 (Pa.Super. March 21, 2013 Shogun, Lazarus, Ott, J.J.) (mem. op. by Ott, J.).

The claimant in this case was injured while driving his employer provided vehicle. He settled the third party case and then sought underinsured motorist (UIM) coverage on his own personal policy with Progressive.

The Progressive policy contained an exclusion that precluded UIM coverage where an insured was injured while operating a vehicle not owned by the insured but which was made available for his or her regular use. Progressive denied the claimant's UIM claim.

In this matter, the injured party claimant argued that an issue of fact existed as to whether the vehicle was being used "regularly" by the claimant since other people also drove the vehicle and since the claimant did not operate it 100% of the time.

The Superior Court upheld the exclusion and concluded that the regular use exclusion applied to the employee/truck driver who used his employer's vehicle 30% of the time during his work day. The fact that other people used the vehicle was found not to be significant.  The court also found, based upon the facts presented that the insured's use was not casual or incidental.

Anyone wishing to review this decision may click this LINK.

For a listing of previous Tort Talk posts on the Regular Use Exclusion, click HERE

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

Justice Orie Melvin to Resign from Pennsylvania Supreme Court

According to an article by Amaris Elliott-Engel in the March 25, 2013 edition of The Legal Intelligencer entitled "Orie Melvin Resigning From Supreme Court," Justice Joan Orie Melvin, who was convicted of political corruption earlier this year, has tendered a letter of resignation from the Pennsylvania Supreme Court that will be effective on May 1, 2013.

Sunday, March 24, 2013

Superior Court Addresses Proper Procedure to Challenge Venue on Petitions to Appoint UM/UIM Arbitrators

In its recent decision in the case of Cid v. Erie Insurance Group, 872 EDA 2012 (Pa. Super. Feb. 15, 2013) (Opinion by Bowes, J.), the Pennsylvania Superior Court addressed a challenge to venue in a motor vehicle accident case in which the injured party filed a Petition to Appoint a Third/Neutral Arbitrator and Compel UIM Arbitration in Philadelphia County.   A central issue in this case was the manner in which the challenge to venue could be raised in response to such a petition.

In this matter, the insurance carrier filed an Answer to the Petition and, in that Answer, argued that, according to a forum selection clause in the insurance policy, proper venue lay in Montgomery County, which was the insured’s county of residence at the time of the accident.  

The injured party argued that the carrier waived any objection to venue by failing to file timely Preliminary Objections to the Petition.  

The Superior Court ultimately ruled that the Petition fell within the definition of Pa. R.C.P.  206.1 and that, as such, Preliminary Objections are not contemplated within the petition practice delineated under that Rule.   Accordingly, the Court found that, since Erie raised this opposition to venue in its initial Answer to the Petition, the objection was properly preserved.  

The Court also ultimately agreed with the contention of the carrier that proper venue lay in Montgomery County as per the terms of the insurance policy.  

Accordingly, this Opinion offers guidance on the proper procedure to follow in challenging venue in response to a Petition to Appoint Arbitrators in a UM/UIM case.  This case also represents another decision upholding the validity of forum selection clauses in UM/UIM cases.

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

I send thanks to Attorney Joseph P. Walsh of Walsh Pancio, LLC in Lansdale, Pennsylvania for forwarding this Opinion to my attention.  

Thursday, March 21, 2013

10 Reasons to Consider Registering for the Tort Talk Expo 2013

Please consider registering for fast-approaching April 18, 2013 TORT TALK EXPO 2013 CLE SEMINAR at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania:












Judge Caputo of Middle District Reconsiders Products Liability Decision Under Restatement (Third)

In his recent decision in the Pennsylvania Federal Middle District case of Vaskas v. Kenworth, 3:10 CV-1024 (M.D.Pa. Jan. 3, 2013), Judge A. Richard Caputo followed the Third Circuit's prediction that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Torts analysis of products liability cases if squarely faced with the issue.

In so ruling, Judge Caputo granted summary judgment to the defendant on several claims arising out of an incident during which a truck driver allegedly fell from the steps of a tractor trailer.  In particular, the Court granted summary judgment on the strict liability design defect and strict liability failure to warn claims.  The negligence claims were allowed to proceed.

However, in a more recent decision in the same case, Judge Caputo addressed a Motion for Reconsideration filed by the defendants, who asserted that all of the claims should be dismissed under a Restatement (Third) analysis.  In its Brief, the defendant's argued that "[w]ith the adoption of the Third Restatement, strict liability and negligence are no longer two distinct legal theories, each potentially supporting recovery for a product-related injury." The defendant also asserted, "There is just one theory, and it requires proof of a defect."

In his Opinion and Order on the defendant's Motion for Reconsideration, Judge Caputo went further and granted summary judgment to Kenworth Truck Co. on the plaintiff's negligent design defect and negligent failure to warn claims.

Judge Caputo wrote, in part, as follows: "The court agrees with defendants that allowing plaintiffs to proceed to trial on negligent design defect and negligent failure to warn claims but not on strict liability design defect and strict liability failure to warn claims is inconsistent with the Restatement (Third)."  As such, Judge Caputo extended his entry of summary judgment to the plaintiff's negligent design and negligent failure to warn claims.

Copies of the five-page opinion in Vaskas v. Kenworth, PICS No. 13-0674, are available from The Legal Intelligencer. You can call the Pennsylvania Instant Case Service at 800-276-PICS to order for a small fee.

Source:  Article by Saranac Hale-Spencer entitled "Federal Judge Refits Case Against Kenworth to Restatement (Third).The Legal Intelligencer (March 21, 2013).

Tuesday, March 19, 2013

Post-Koken Decision Out of Philadelphia County on Proper Venue

On March 12, 2013, Philadelphia County Court of Common Pleas Judge Arnold New issued a Post-Koken decision on venue in the case of Fish v. Erie Insurance Company, No. 003411 Jan. Term, 2013 (Phila. Co. 2013 New, J.), granting Erie Insurance Company's preliminary objections and transferring venue of a UIM case from Philadelphia to Franklin County. The ruling was by Order only.

The motor vehicle accident occurred in Franklin County.  The Erie insured resided in Franklin County as well.

The Erie Insurance UIM endorsement contained a venue selection clause that provided: "Suit must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident."

Tort Talkers may recall that, previously, the Pennsylvania Superior Court ruled on an identical venue selection clause in an insurance policy in the case of O’Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938 (Pa. Super 2009) alloc. denied 2010 WL 1752268, 39 EAL 2010, May 4, 2010, and transferred that case from Philadelphia County to Delaware County.
As stated, the court in this case of Fish v. Erie Insurance Company upheld and applied the forum selection clause to rule that the case should be transferred out of Philadelphia County over to Franklin County.  The Court also required the Plaintiff to pay the costs of the transfer.

I send thanks to Attorney John Statler of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.  Attorney Statler advised that Attorney Liz Snover of that office drafted the Preliminary Objections and Brief in the case.
Anyone desiring a copy of this Order may contact me at


Judge Sibum of Monroe County Grants Summary Judgment Under Hills and Ridges Doctrine

In her recent decision in the case of Schecker v. Village Supermarkets, Inc., PICS Case No. 13-0491 (C.P. Monroe Feb. 13, 2013 Harlacher Sibum, J.), Monroe County Judge Jennifer Harlacher Sibum granted summary judgment to a defendant possessor of land in a snow and/or ice slip and fall case.

According to the opinion, the Plaintiff was dropped off at a supermarket by her husband.  She admittedly noticed that the cement walkway to the front of the store appeared wet but was not covered by snow or ice.  At the time she entered the store there was no snow otherwise in the parking lot and no precipitation was falling.

The Plaintiff exited the store about 15 minutes later pushing a shopping cart. As she walked across the cement surface outside the store she slipped and fell in an area just beyond the store's overhang.

In her Complaint, the Plaintiff alleged that she was caused to fall by a slippery walkway and due to the fact that black ice was allegedly present where she fell.  Discovery confirmed, however, that there were no areas of ice or snow present and that the area merely appeared wet.

In her Opinion, Judge Sibum reviewed the parameters of the Hills and Ridges Doctrine and the issue of actual and/or constructive notice on the part of the Defendants.

Based upon the record before it, the court found that the Plaintiff did not present any evidence that the ice on which she allegedly slipped had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger as is all required under the Hills and Ridges Doctrine.

The Court also ruled that notice to the Defendant landowners could not be inferred from an employees' mere presence near the dangerous condition at the time of the incident.  Accordingly, the Defendant's motion for summary judgment was granted.

Anyone desiring a copy of this case may call the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and give the above PICS Case No.  A small fee will be charged by the Instant Case Service.

Source:  "Case Digests." Pennsylvania Law Weekly (March 12, 2013).

Wednesday, March 13, 2013

Register For Tort Talk Expo 2013


I am proud to note that Tort Talk has gone over the number of 1,000 email subscribers to the blog.  Thanks very much for all your support, tips, cases, and readership!  


Presenting 15th Annual Personal Injury Potpourri

I have accepted an invitation from Harris Bock, Esq. to be a presenter at The Dispute Resolution Institute's

15th Annual Personal Injury Potpourri

This CLE event is set to take place on April 16, 2013 at the Philadelphia Convention Center in Philadelphia, PA. My topic will be a "Comprehensive Civil Litigation Update."

Here are the details along with this LINK to the Register Online page -- Hope to see you there:

Monday, March 11, 2013

Superior Court's Latest Opinion on Stacking

Here is a LINK to the Pennsylvania Superior Court's latest decision on the issue of stacked UM coverage in the case of Bumbarger v. Peerless Ins. Co., 2013 Pa.Super. 47 (Pa.Super. March 8, 2013 Musmanno, J., Wecht, J., and Colville, J.)(Colville, J., dissenting)(Opinion by Wecht, J.).

In this case, the Plaintiff was involved in an accident with an uninsured driver and filed suit against her own carrier for uninsured motorists benefits.  An issue arose as to whether or not the Plaintiff was entitled to stacked coverage. 

The Plaintiff had waived stacked coverage when she originally purchased the policy for coverage on two vehicles.  She eventually later separately added two more vehicles to the policy but the carrier never obtained additional waivers of stacked coverage from the Plaintiff insured.  One of the additional vehicles was added under an endorsement to the policy and, when the fourth vehicle was added to the policy, it was not by way of an endorsement.

The Plaintiff contended that pursuant to the Sackett decisions, the carrier was required to obtain additional waivers of stacking from its insured when the third and fourth vehicles were added to the policy.  The Plaintiff asserted that the carrier breached the policy by failing to allow for stacked coverage.

If it was deemed by the court that the coverage need not be stacked, the Plaintiff would be entitled to $25,000 in coverage.  If stacked coverage was found to be warranted, the stacked coverage would have been $100,000.

After reviewing the law on the issue as applied to the particular facts presented, the court ruled that new waiver of stacking forms were required and that the failure to secure the waivers resulted in the Plaintiff being entitled to stacked coverage.

As this issue is somewhat convoluted, I have provided a link to the opinion above if you wish to review the same.  Here is a LINK to Judge Colville's dissenting opinion.

I send thanks to The Legal Intelligencer/Pennsylvania Law Weekly reporter Ben Present for bringing this case to my attention.

Sunday, March 10, 2013

Split of Authority in Products Liability Standard Continues

Confusion continues to reign in Pennsylvania products liability law from conflicting decisions from Pennsylvania federal courts regarding whether the Restatement (Second) or (Third) of Torts should be applied:

Eastern District Federal Court
Kordek v. Becton, Dickinson & Co.,  2013 WL 420332 (E.D. 2013)(Judge Mary A. McLaughlin applies Restatement (Third) of Torts as supported by Third Circuit Court of Appeals' decisions predicting that Pennsylvania Supreme Court will adopt Restatement (Third)).

The Eastern District decision in Kordek v. Becton, Dickinson & Co. may be viewed HERE.

Western District Federal Court

Gilmore v. Ford Motor Co., No. 2-12-CV-00547 (W.D.Pa. 2013)(Judge Arthur J. Schwab applies Restatement (Second) of Torts in products case given that Third Circuit's predictions have not come to pass).

Source:  Article by Saranac Hale-Spencer, "Judge Adds to Restatement Rift Among Federal Courts in State."  The Legal Intelligencer (March 8, 2013).

Anyone wishing to review the Western Federal District decision of Gilmore v. Ford Motor Co. may click this LINK

Wednesday, March 6, 2013

Sudden Medical Emergency Defense Must Be Pled As Affirmative Defense

In its recent February 22, 2013 decision in the case of Shiner v. Ralston, No. 1791 MDA 2011 (Pa.Super. 2013 Bowes, Ott, Strassburger, JJ.)(per curiam), the Pennsylvania Superior Court outlined the sudden medical emergency defense for motor vehicle accident matters and held that it should be pled as an affirmative defense when applicable.

The Shiner case involved allegations that a defendant driver lost consciousness as a result of a cardiac event immediately prior to the happening of the accident.  The defendant crossed a grassy median and struck the plaintiff's vehicle.  The plaintiff sustained injuries and the defendant was pronounced dead at the scene.

In its opinion the Superior Court distinguished the sudden medical emergency doctrine from the sudden emergency doctrine.  The sudden emergency doctrine provides that an individual is not held to the same ordinary standard of care when faced with a sudden emergency while driving, but rather, must utilize his or her best judgment under the circumstances.  In contrast, the sudden emergency medical defense, if raised as an affirmative defense and if proven, allows a defendant to avoid liability altogether.

Anyone wishing to review a copy of this decision may click HERE.

Source:  Article by Ben Present: "'Sudden Medical Emergency' Ruled an Affirmative Defense," 36 Pennsylvania Law Weekly 214 (March 5, 2013).