Thursday, August 29, 2013

Judge Minora of Lackawanna County Holds That the Law is Not an Ass


In his recent August 27, 2013 decision, in the case of White v. The Medical Protective Company,, No. 2010-CV-7058 (C.P. Lacka. Co. Aug. 27, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas disagreed with Charles Dickens' assessment above in an Opinion addressing a discovery dispute in a medical malpractice action.  
According to the Opinion, the discovery dispute arose from an underlying case involving alleged medical malpractice in the delivery and birth of a minor Plaintiff.   That 2003 lawsuit went on to a jury verdict on November 17, 2008 in favor of the Plaintiff in the amount of $20,500,000.00.   That verdict was modified to include delay damages, which increased the verdict to the amount of $27,352,195.21.   This verdict was later affirmed by the Pennsylvania Superior Court.  
According to the Opinion, the size of the verdict far surpassed the insurance coverages of the Defendants.  Accordingly, the Defendants assigned their potential causes of action against their insurers and their counsel to the Plaintiff which gave rise to the instant lawsuit before Judge Minora.  
Judge Carmen D. Minora
Lackawanna County
Before the Court on this Opinion were disputed Orders issued by the Lackawanna County Special Trial Master.   The specific issue before Judge Minora was the Plaintiff’s Motion to Strike on Procedural Grounds the Defendant’s appeal of the decisions of the Special Trial Master on certain discovery issues.  The particular issue before Judge Minora was whether the Defendant’s appeal was properly filed or was procedurally fatally deficient.
The Plaintiff’s argument was that, in order to properly appeal an Order of the Special Trial Master in Lackawanna County, the appellant must present an appeal motion to the designated motions court judge under Lackawanna County Local Rule of Civil Procedure 206.4(c) together with proof of payment of the appropriate fee.  
After reviewing Lackawanna County Local Rule 206.4(c) along with Lackawanna County Local Rule 4000.1(b), Judge Minora agreed that the Plaintiff correctly stated the prescribed procedure.  
Lackawanna County Local Rule 4000.1(b) provides that “An Order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the designated Motion Court Judge in accordance with Lacka. Co. R.C.P. 206.4(c) together with proof of payment to the Clerk of Judicial Records of an appeal cost in an amount to be set by the Court from time to time.  The appeal motion shall be filed within ten (10) days of the Order of the Special Trial Master and shall be considered by the Court pursuant to Lacka. Co. R.C.P. 4000.  
Judge Minora also stated that, under Lackawanna County Local Rule 206.4(c) as incorporated by reference in Lackawanna County Rule 4000.0(b), one seeking to obtain a Rule to Show Cause in such an appeal must present a Petition to the Motions Court pursuant to Lackawanna County Local Rule 208.3(a) requires the moving party to serve all counsel with a copy of the Motion or Petition that will be presented advising them of a date certain when the presentation will take place and provide, at a minimum, three (3) business days of notice prior to that presentation.  
While the Court stated that the Plaintiff’s arguments and positions appeared to be correct, the Court disagreed with the conclusion proposed by the Plaintiff that the appeal was dead and could not be revived. 
In reaching this conclusion, Judge Minora noted that it was the Defendant’s contention that they have proceeded in good faith on the appeal but were relying upon an outdated version of the Lackawanna County Local Rules of Civil Procedure that was posted on the Lackawanna County official website.   Judge Minora reviewed the Rules on the website and found it to be an older version that read differently from the current version that was actually in effect, particularly with respect to Local Rule 4001.1.   
The Defendants also argued that, in addition to proceeding in good faith, they had, in any event, timely filed their motions on the appeal and paid the appropriate filing fees.  
Thus, as stated, the issue before Judge Minora of whether or not the procedural defect resulting from the Defendant’s reliance upon the old Rule was fatal to the appeals.   The Opinion of the court confirmed that it was uncontested by the Plaintiff that the Defendant’s appeals were timely and that all appropriate fees were paid.  
Judge Minora additionally stated that the only prejudice to the Plaintiff’s claims presented would be the need to proceed through the appeals process if the Court ruled in favor of the Defendant.  
After reviewing the applicable law, including Pa. R.C.P.  126, entitled "Liberal Construction in Application of Rules," the Court overruled the Plaintiff’s Motion to Strike the Appeals and asserted that the “Plaintiff ha[d] clearly elevated process over substance and overstated the consequences of Defendant’s predicament.”  
Under Pa. R.C.P. 126, which Judge Minora construed to also apply to to local rules, it is stated that the Rules of Civil Procedure “shall be liberally construed.”   The rule also states that the “Court at every stage of such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”  
Judge Minora concluded his Opinion with a Dickensian reference by stating that “[c]ontrary to Charles Dickens, the law is not an ass.” [Emphasis in Opinion at p. 12].  
Judge Minora further stated that “the trial of a lawsuit is not a sporting event where the substantive legal issues are subordinated to the rule of the game.”  He additionally noted that “procedural rules are not ends in themselves, but means whereby justice as expressed in legal principles is administered; they are not to be exalted to the status of substantive objectives requiring rigid adherence.”  
Accordingly, Judge Minora ruled that “the Court should not be astute in enforcing technicalities to defect apparently meritorious claims.”   Ultimately, the Court denied the Plaintiff’s Motion to Strike the Appeal of the Defendants from the Orders of the Special Trial Master. 

Anyone wishing to review this interesting Opinion issued by Judge Minora in the case of White v. The Medical Protective, may click this LINK. 
The Civil Rules Committee of the Lackawanna County Bar Association is currently in the process of reviewing the various Lackawanna County Local Rules in a concerted and purposeful effort to come up with a correct and current version of the same.  
Once this process is completed, it is anticipated that the updated version of the Lackawanna County Local Rules will be made publicly available on either the Lackawanna County’s website and/or the Lackawanna Bar Association’s website.  
If possible, I will also establish a Link to the Lackawanna County Local Rules from Tort Talk as well.

Wednesday, August 28, 2013

Superior Court Addresses Issue of "Occupying" Vehicle Under Household Exclusion

In its recent decision in the case of Swarner v. Mut. Ben. Ins., 2013 Pa. Super. 198 (July 18, 2013), the Pennsylvania Superior Court addressed the household exclusion in the context of an application of the Utica Mutual factors as to whether or not an injured party was “occupying” a vehicle at the time of the accident.

According to a summary of this case, the injured party was thrown from one vehicle and then hit by another vehicle while lying unconscious on the road.   The original vehicle was apparently owned by the injured party’s spouse. 

After applying the factors applicable to the test of whether or not a person is “occupying a vehicle,” the court held that the household exclusion did not apply as the insured injured party was lying in the roadway after she ceased to occupy the original vehicle after being thrown from that vehicle during the first collision.

Anyone wishing to review the Swarner decision may click this LINK.

Source:  “Court Summaries” by Timothy L. Clawges, Esquire Pennsylvania Bar News (August 19, 2013).

Monday, August 26, 2013

Judge Terrence R. Nealon Addresses Fair Scope of Expert Report/Opinion Rule

In his August 23, 2013 Opinion in the case of Shields v. Fafard, No. 2009 - CV - 8636 (C.P. Lacka. Co. Aug. 23, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Plaintiff's Post-Trial Motion asserting that the defense medical expert was impermissibly allowed to testify beyond the fair scope of his report in an auto accident trial.

After thoroughly reviewing the applicable law on the issue presented, Judge Nealon found, as follows:

  • that the Plaintiff waived the issue by failing to properly lodge an objection during the course of the testimony of the defense medical expert witness;
  • that the defense medical expert's testimony was within the fair scope of his written report such that the Plaintiff was not unfairly surprised by the expert's reasonable explanation of his written words; and,
  • that, "more importantly," the Plaintiff was able to secure expert medical testimony to rebut the testimony of the defense medical expert at issue such that the Plaintiff was not prejudiced by the admission of the defense medical expert's testimony.

Anyone wishing to review this decision by Judge Nealon in the Shields case may click this LINK.

Wednesday, August 21, 2013

Bench Trial Bad Faith Verdict in Favor of Lackawanna County Plaintiff

In his recent August 15, 2013 decision in the case of Davis. v. Fidelity National Insurance Company, No. 2009-CV-6154 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), Judge Carmen D. Minora issued a Memorandum and Order at the end of which he entered a verdict in favor of the Plaintiffs under the Bad Faith Act, 42 Pa. C.S. §8371, in the total amount of $2,062,746.59.  

According to the detailed Opinion, the case came before the court as an insurance bad faith and breach of contract action arising out of a title insurance policy.   The parties proceeded to a bench trial after both parties waived their right to a jury trial.  

Judge Carmen D. Minora
Lackawanna County
Concisely, after a thorough review of the facts and the current status of bad faith law in the Commonwealth of Pennsylvania, Judge Minora concluded, in pertinent part, that the evidence before the court showed that the carrier did not have a reasonable basis for taking almost five (5) years to resolve the Plaintiffs’ claim.    The court noted that the carrier took 20 months to complete its investigation and notify the Plaintiff that the claim was covered under their policy.  However, the Defendant was found to have been delayed payment for almost three (3) years thereafter, and, according to the court, only finally tendered an inadequate offer once suit was filed.

The court found that the “extreme delay” found in the record before the court in this case constituted bad faith under 42 Pa. C.S. §8371.   The court found that that inaction of the Defendant carrier to be outrageous and recklessly indifferent to the rights of its insured.  

As such, the court entered a verdict comprising of compensatory and punitive damages that in the above amount.  

Plaintiff’s counsel was Carl J. Guagliardo of the Kingston, Pennsylvania law firm of Selingo & Guagliardo.  
Anyone wishing to review this Opinion may click this LINK.

Judge Williamson of Monroe County Addresses Allegations of Recklessness in Complaint

In his recent decisions in the case of Burger v. Jaggers, No. 1858-Civil-2013 (C.P. Monroe Co. July 22, 2013, Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed a series of Preliminary Objections in a strict liability action.  

According to the Opinion, the case arose out of an incident during which the Plaintiff and the Defendant were on the Defendant’s property to cut up trees.   While the Plaintiff was cutting up a fallen tree, the Defendant allegedly cut down a nearby standing tree, without warning, which fell onto the Plaintiff, allegedly causing injuries.  

The Defendant’s Preliminary Objections requested the Court to strike allegations of “reckless conduct,” “recklessness,” and “deliberate disregard” as being the alleged inclusion of scandalous and impertinent matter.  The Court also was requested to dismiss a count on strict liability.   The claim for strict liability was apparently based on the fact that the parties were cutting trees with chainsaws.

Judge Williamson overruled the Preliminary Objections and held “obviously, recklessness is relevant to the claim and therefore cannot be impertinent.” and found that there was nothing scandalous about such allegations under the facts presented.  

The Court also denied the Preliminary Objections on the strict liability claim indicating that, while “the Court must determine, as a matter of law, whether an activity is abnormally dangerous so that strict liability will be imposed…[accepting] all well-pleaded allegations…as true…Plaintiff has sufficiently averred the factors to establish a claim for strict liability.”  

I send thanks to Attorney Joseph F. Kulesa of Fischer and Fischer Law Offices in Mount Pocono for bringing this decision to my attention.

Anyone wishing to review this decision, may click this LINK.

Friday, August 16, 2013

Judge Nealon of Lackawanna County Addresses Novel Issue of Viability of Punitive Damages Claim For Distraction by GPS While Driving

Judge Terrence R. Nealon has written an excellent and thoroughly researched Opinion on the novel case of first impression of whether a punitive damages claim may be pursued in an auto accident case against a defendant driver on the basis that the defendant was distracted by looking down at a GPS on a smart phone at the time of the accident.

In the case of Rockwell v. Knott, No. 12 CV 1114 (C.P. Lacka. Co. Aug. 13, 2013 Nealon, J.), the defendant filed a motion for partial summary judgment on this punitive damages claim.

Judge Terrence R. Nealon
Lackawanna County
In his detailed Opinion, Judge Nealon noted there were a few Pennsylvania court of common pleas decisions involving cell phone use (which does not divert the driver's eyes and attention from the roadway), but nothing involving texting while driving, or use of a cell phone GPS, which could cause far greater driver distraction. 

The court also reviewed similar cases from other jurisdictions to round out the analysis on the issues presented of driver distraction by mobile devices.

While Judge Nealon noted in his Opinion that looking away from the road at a GPS on a smart phone to the point of distraction could arguably amount to reckless conduct to support a punitive damages claim, the record before the court in this particular matter failed to contain any evidence to support the claim that the defendant driver was indeed so distracted at the time of the accident.

As such, the defendant's motion for partial summary judgment on the punitive damages claim was granted by the court.

This case has settled since the issuance of the Opinion and, therefore, there will be no appellate review of this case.

Anyone wishing to review this Opinion by Judge Nealon in the case of Rockwell v. Knott may click on this LINK

PDI North Region CLE Continued to December 4, 2013 to Coincide with Holiday Happy Hour

The Pennsylvania Defense Institute has announced that their annual North Regional CLE progam, which was set for August 22, 2013 at Mohegan Sun at Pocono Downs, has been postponed to December 4, 2013 to coincide with a Holiday Happy Hour on the same date

The program is co-sponsored by the Northeast Pennsylvania Trial Lawyers Association.

The afternoon CLE program will be followed by the evening reception.

The program will feature new Pennsylvania Supreme Court Justice Correale F. Stevens, and a panel of local judges.

The cost for lawyers is $175 for the program and reception, and free for all others (insurance claim professionals, law clerks, paralegals, etc...).

For an agenda and registration click here (But be reminded that the new date is December 4, 2013).

You can also contact PDI Executive Director Dave Cole at more information.

Tuesday, August 13, 2013

Another Decision in Favor of Severance of UIM and Bad Faith Post-Koken Claims in York County

In his recent decision in the case of Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York Co. July 15, 2013 Linebaugh, P.J.), President Judge Stephen P. Linebaugh of the York County Court of Common Pleas granted a Motion to Sever and Stay the bad faith claim filed Defendant, Erie Insurance Exchange in a combined UIM/bad faith litigation.  

The Court further ordered that all further pleadings, discovery, and trial of the bad faith claim was severed and stayed until after the Plaintiff’s claims for UIM benefits have been concluded by settlement or final verdict.  

In support of its argument, the carrier argued that severance was required to advance the interest of judicial economy and to prevent prejudice to the Defendant.  The carrier argued that, in terms of its prejudice argument, discovery in the bad faith claim may involve matters related to claims valuation, strategy, and analysis, none of which matters were germane or relevant to the underlying claim for UIM benefits.  

The Plaintiffs countered by arguing that discovery of all claims presented, in the presentation of evidence of all claims at the same time, was economical, convenient, and would prevent undue delay.  

The trial court noted that, while UIM claims are decided by a jury, bad faith claims in Pennsylvania state courts must be decided by a judge at a bench trial. 

In this matter, the Defendant wanted to ensure that the presentation of evidence of the bad faith claim would be separate from the presentation of the evidence of the UIM claim, as opposed to all of the evidence being presented during a jury trial with the trial judge disposing of the bad faith claim immediately following the jury reaching its verdict.  

Judge Linebaugh noted that the fact alone that the bad faith claim must be decided by the judge while the UIM claim would be decided by the jury did not convince the court that severance and a stay was appropriate.  

Rather, utilizing the discretion of the court and applying Pa. R.C.P. 213(b), the court felt that severance was appropriate.   In his Opinion, Judge Linebaugh reviewed a number of decisions on the same issues from around the Commonwealth, including decisions by Judge Wettick out of Allegheny County.  

In the end, Judge Linebaugh of York County sided on the split of authority in favor of severance of these types of claims.  

Anyone wishing to review the detailed opinion of Judge Linebaugh on this particular issue may contact me at  I send thanks to Attorney John A. Statler of the Lemoyne, Pennsylvania law office of Johnson, Duffie, Stewart & Weidner.  

Wednesday, August 7, 2013

BOOK REVIEW: An Excellent Resource for Litigators Preparing for Depositions

Here is a LINK to my book review that appeared in the recent edition of the Pennsylvania Lawyer magazine reviewing Attorney Scott Cooper's treatise on depositions entitled The A to Z of Civil Depositions in Pennsylvania.

The author of the treatise, Scott Cooper, Esquire from the Harrisburg, PA law firm of Schmidt Kramer, has written an excellent primer on depositions that may assist you in your future depositions.  Information on how to purchase the book is included in the book review.

Monday, August 5, 2013

PDI/NEPATLA Northeastern Pennsylvania CLE - August 22, 2013 -- Mohegan Sun Casino

The Pennsylvania Defense Institute is proud to announce their annual regional CLE progam, August 22, 2013 at Mohegan Sun at Pocono Downs.  The program is co-sponsored by the Northeast Pennsylvania Trial Lawyers Association. An afternoon CLE program is followed by an evening reception. The program features new Pennsylvania Supreme Court Justice Correale F. Stevens, and a panel of local judges. The cost for lawyers is $175 for the program and reception, and free for all others (insurance claim professionals, law clerks, paralegals, etc...). For an agenda and registration click here. (Or contact PDI Executive Director Dave Cole at

Judge Williamson of Monroe County Grants Summary Judgment in Limited Tort Case

In his recent decision in the case of Bachman v. Lassell, PICS Case No. 13-0989 (C.P. Monroe Co. Apr. 15, 2013, Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted summary judgment to a Defendant in a limited tort case after finding that reasonable minds on a jury would not differ on a conclusion that the Plaintiff’s injuries did not result in a serious impairment of a bodily function.  

According to a report on the case, the court noted that, after the accident, Plaintiff did not immediately seek out medical attention.   The day after the collision, the Plaintiff drove himself to the hospital and was treated and released under a diagnosis of a lumbar sprain and contusion.  

Thereafter, an MRI revealed a mild disc herniation and bulge.   The Plaintiff visited a doctor four times over a three month period and attended six sessions of physical therapy.  

The Plaintiff’s deposition testimony indicated that he alleged ongoing neck and back pain with headaches.   The Plaintiff testified that he was restricted in his activities at times, but did not take any medication, and was not disabled.   The evidence established that the Plaintiff was restricted by his doctors from lifting, pushing, or pulling more than 10 pounds for six weeks.  

The Plaintiff worked as a tow truck driver and missed two and half months of work.   He also never returned to an auto repair shop where he had worked periodically.

The court ruled that, despite the Plaintiff’s subjective complaints, there was no objective medical proof provided that the Plaintiff’s injuries amounted to a substantial impairment of a bodily function.   Accordingly, the court granted partial summary judgment barring the Plaintiff from seeking non-economic damages for pain and suffering due to the Plaintiff’s failure to offer evidence of a substantial impairment of a bodily function.  

Anyone desiring a copy of this decision, may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427, provide the above PICS Case No and pay a small fee.

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 9, 2013). 

Friday, August 2, 2013

ARTICLE: Accident-Prone Plaintiffs Face Quandary Over Multiple Trials

The below article of mine recently appeared in the July 23, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media. 

Accident-Prone Plaintiffs Face Quandary Over Multiple Trials

On occasion, a plaintiff comes along who has separate claims for personal injuries arising out of different accidents that occurred close in time.

The dilemma for such a plaintiff becomes whether or not to attempt to pursue both claims under one complaint, or if the cases were filed under two separate complaints, whether to move to consolidate those matters into one trial.

Recent cases handed down confirm that while a plaintiff is not permitted to plead claims for two entirely separate accidents under a single complaint, once two separate complaints are filed by the plaintiff, the plaintiff may be able to consolidate those two actions for purposes of a single trial.

Joinder of Claims Not Permitted in Complaint

Under Pennsylvania Rule of Civil Procedure 2229(b), it is provided that a "plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action."

According to the case of Richner v. McCance, 13 A.2d 950 (Pa.Super. 2011), each element of this test must be met in order for separate claims to be stated under the caption of one complaint, i.e., joinder is permitted only if both (1) the lawsuits arose out of the same series of transactions or occurrences and (2) a common question of law or fact exists.

For example, in the Pennsylvania Superior Court case of Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007), a plaintiff attempted to plead in one complaint claims arising out of separate motor vehicle accidents that occurred in different counties seven months apart. Turning to Pa.R.C.P. 2229(b), the Kalker court ruled that this joinder of claims was not permissible because the two accidents did not arise out of the same occurrence.

Such a joinder under a single complaint will not be allowed even where the plaintiff alleges an injury to the same body part from both accidents. In the Philadelphia case of Alpher v. Yellow Cab, 12 Pa.D.&C.3d 355 (C.P. Phila. 1979), a plaintiff attempted to plead claims in one complaint from two separate motor vehicle accidents that occurred 14 months apart on the basis that both accidents resulted in injuries to the same body part. The court in Alpher found that the two causes of action should not be joined because there was no common question of law or fact and because the claims did not arise out of the same transaction or series or occurrence.

As such, the law of Pennsylvania requires a plaintiff to bring claims arising out of separate motor vehicle accidents under separate complaints. The question remains whether that plaintiff who has filed separate lawsuits may thereafter successfully move to consolidate those separate complaints into one trial.

Consolidation of Separate Claims for Trial

Judge R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas recently addressed this very issue and allowed the consolidation of two separately filed motor vehicle accident lawsuits brought by the same plaintiff in the case of Jackson v. Drew, PICS CASE No. 13-1015, No. GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).

In Jackson, the plaintiff was involved in two separate car accidents in Allegheny County with similar injuries resulting. The plaintiff filed separate complaints against the drivers.

Thereafter, the plaintiff filed a motion under Pa.R.C.P. 213 to consolidate the cases. The plaintiff asserted a concern that each defendant would try to blame the other for any of the injuries asserted.
Under Pa.R.C.P. 213(a), it is provided that "when actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay."

In Jackson, Wettick granted the motion pursuant to Pa.R.C.P. 213(a) and consolidated the cases under the rationale that both accidents arose out of a common question of law, i.e., the common question of fact as to what injuries were caused by which accident.

In his decision, Wettick distinguished the separate standards applicable to the permissive joinder of separate claims in a complaint under Pa.R.C.P. 2229 and to a motion for consolidation under Pa.R.C.P. 213(a). Whereas, the joinder Rule 2229(b) required both elements of the test — that is, actions arising out of the same occurrence and a common question of law or fact — the consolidation Rule 213(a) only mandated that one or the other elements of the test exist.

In the context of the Jackson case, although the separate actions arose out of separate occurrences, where the cases involved the common questions of fact as to which injury caused which accident, Wettick allowed for the consolidation.

Another example of a trial court opinion in which separate complaints were allowed to be consolidated for purposes of trial is Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991). In Scoggins, the plaintiff allegedly sustained similar injuries as a result of two separate motor vehicle accidents that occurred several months apart.

The Scoggins court felt that the chances of the plaintiff receiving a fair trial would be enhanced by the consolidation, as one jury would hear the totality of the case and neither defendant would be able to point the finger at a missing defendant. The court also noted that with consolidation, the plaintiff would only need to call her medical experts to testify once and thereby avoid excessive fees. The court additionally noted that if the cases were not consolidated, there was the risk that the plaintiff might be able to collect twice for the same injuries. In granting the motion to consolidate, the Scoggins court pointed to the case of O'Meara v. Wilson, 12 Mercer L.J. 292 (1973), in support of its decision.

In the case of Hamilton v. Gallo, 334 A.2d 692 (Pa.Super. 1975), the Superior Court affirmed a trial court's consolidation of cases arising out of separate motor vehicle accidents that occurred several months apart. The Hamilton court adopted the trial court's reasoning that consolidation prevented the defendants from pointing the finger at the other defendant in separate trials and also prevented the plaintiff from downplaying the injuries from the one accident while emphasizing the other during separate trials.

While the decisions handed down to date all appear to favor the consolidation of separate complaints for separate accidents resulting in similar injuries, such consolidation is not automatic. Rather, under Rule 213, the courts retain broad discretion to consider whether or not to grant such requests to consolidate.

Moreover, as indicated in dicta in the Kalker decision referenced above, a consolidation request may be denied if the accidents arose in different counties, as venue issues may possibly serve to prevent the joinder of the two actions.

Damned If You Do, Damned If You Don't

Regardless of whether or not a decision is made to consolidate the claims, plaintiffs pursuing a recovery for injuries arising out of two separate accidents face challenges.

If separate trials occur, the plaintiff faces the greater risks attendant with the defendant blaming a missing defendant and another accident in the trial at hand. The same problem still exists in a consolidated trial but perhaps to a lesser degree, as the jury may be turned off by defendants casting blame at each other and refusing to accept responsibility for their own actions.

Plaintiffs claiming similar injuries in two separate accidents that occurred close in time may also have serious problems attempting to prove through expert testimony which accident caused which injury.
Where a plaintiff's medical expert fails to offer an unequivocal opinion, to a reasonable degree of medical certainty, as to which accident was responsible for which portion of the alleged injury, the plaintiff may be faced with a pretrial motion in limine seeking to preclude the testimony of the plaintiff's expert or a motion for nonsuit at the close of the plaintiff's case-in-chief at trial.

The courts of Pennsylvania have routinely held that an expert's opinion must be unequivocal, as in Hamil v. Bashline, 392 A.2d 1280, 1285-1286 (Pa. 1980). Stated otherwise, an expert's opinion that amounts to a mere guess or conjecture is not admissible in evidence, as in Laubach v. Haigh, 252 A.2d 683 (Pa. 1969), and Collins v. Hand, 246 A.2d 398, 403 (Pa. 1968).

Thus, the defense argument will be that if the plaintiff's medical expert witness is unable to unequivocally conclude which injuries and symptoms are related to which accident as required by law, it logically and necessarily follows that a jury of laypeople will likewise be unable to render such a decision.

Burden of Proof

As was attempted in the case of Pennfield v. Meadow Valley Electric, 413 Pa. Super 187, 604 A.2d 1082, 1085 (1992), a plaintiff may attempt to shift the burden of proof on the apportionment of the damages to the defendants under the Restatement (Second) of Torts, Section 433B, which pertains to the burden of proof of multiple defendants who have combined to cause an injury.

Similarly, in Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995), the court noted that since "most personal injuries are by their very nature incapable of division," a plaintiff should not be burdened with attempting to apportion the damages among multiple defendants. The court in Smith essentially treated the two separate defendants as joint tortfeasors in a case where the first defendant had rear-ended the plaintiff's vehicle and, shortly thereafter, the second defendant came along and rear-ended both vehicles as they were pulled off the side of the road.

However, defendants may counter with the argument that the rules pertaining to the apportionment of damages amongst multiple defendants only applies to joint tortfeasors, which generally cannot be so in the context of a matter two entirely distinct accidents separated by time.

Such was the finding of the court in a case involving two car accidents in Shamey v. State Farm Mutual Automobile Insurance, 331 A.2d 498 (Pa.Super. 1974). In Shamey, the plaintiffs had been driving up a hill when their vehicle became stuck in snow and ice. The plaintiff's vehicle was then struck in quick succession by two other vehicles.

As to the potential liability of the driver of the first vehicle that hit the plaintiff's vehicle, the Shamey court stated that it would be inappropriate to hold him liable for damages that were not the result of his negligence. Rather, where there were two separate collisions by two allegedly negligent drivers, each could only be found to be responsible for the injuries caused by his negligence.

In McGuire v. Hamper Coal Mining, 49 A.2d 396, 397 (Pa. 1946), the plaintiff suffered an injury to the same spot on his head as a result of two separate accidents two weeks apart.

On the apportionment of damages, the Supreme Court in McGuire reasoned that, since each defendant was only responsible for his own negligence, "it was incumbent upon plaintiff to individuate the injuries and damages" sustained from each accident. In this regard, the court found that the plaintiff was required to offer proof on the damages issues "not with absolute exactitude, but at least with reasonable approximation" so as to prevent impermissible conjecture on the part of the jury in their deliberations.

Ultimately, the Supreme Court in McGuire stated that "it might seem at first blush as though an injustice is being visited upon plaintiff in denying him a recovery from defendant of damages to which he might otherwise be entitled merely because he was unlucky enough to have a second accident and cannot now apportion his injuries between two occurrences. On more mature reflection, however, it should be apparent that it would be at least equally unjust to impose upon defendant a liability for damages which it was not shown to have caused."

Thus, the plaintiff who has the misfortune of having been injured in multiple accidents will have many issues to consider in addressing the quandary of whether to seek recovery at one trial or two.

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


Thursday, August 1, 2013

Bad Faith Decision Out of Blair County

Senior Judge Charles Brown, Jr. recently issued a bad faith decision in the Blair County case of Rhodes v. USAA Cas. Ins. Co., No. 2004 GN 2279 (C.P. Blair Co. July 18, 2013 Brown), that had gone up and down the appellate ladder before this decision.

Central issues in the case involved whether the time the carrier took to evaluate and settle the claim was unreasonable and whether the carrier had a reasonable basis for defending the claim.

After conducting an extensive review of the facts presented as applied against the current status of bad faith law, the court found that the carrier had acted reasonably.  In so ruling, the court noted that there were times that the carrier was without the information necessary to complete its full evaluation.  The court also noted that "[d]elays in this case were caused by the reasonable pace of the litigation."

As such, the court entered a verdict in favor of the carrier in this non-jury case.

Anyone desiring a copy of this case to review may click this LINK.

I send thanks to Attorney Patricia Monahan of the Pittsburgh office of Marshall, Dennehey, Warner, Coleman & Goggin, as well as David Cole, the Executive Director of the Pennsylvania Defense Institute, for providing me with a copy of this case.