Monday, September 30, 2013

Copy of Dauphin County Hills and Ridges Decision Secured

In yesterday's Tort Talk, I reviewed the summary Judgment decision that was entered for a Defendant lessee under the Hills and Ridges Doctrine in a recent decision out of the Dauphin County Court of Common Pleas under the case of Williams v. Dialysis Prop., 125 Dauphin 270 (May 31, 2013).   I originally noted in that post that I did not have a copy of that decision.

A copy of the case was forwarded to my attention by Paralegal Clare McManus of Robert J. Casey, Jr. and Associates as well as by Attorney Wade E. Manley of the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner and I thank them for that.

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

Dauphin County Defendant Prevails Under Hills and Ridges Doctrine

Summary Judgment was entered for a Defendant lessee under the Hills and Ridges Doctrine in a recent decision out of the Dauphin County Court of Common Pleas under the case of Williams v. Dialysis Prop., 125 Dauphin 270 (May 31, 2013).  
According to the summary of this Opinion, a Plaintiff was allegedly injured when the Plaintiff slipped while walking up an outdoor pedestrian ramp covered in snow.
Generally speaking, under the Hills and Ridges Doctrine, in order to prevail, a plaintiff must show that generally wintry conditions existed and that the premises owner allowed the snow and ice to unreasonably accumulate into hills and ridges upon the walking surfaces of the property.
The synopsis the Williams decision notes that summary judgment was granted when the court found the records failed to show any evidence that the Defendant permitted ice and snow to accumulate unreasonably upon the walking surface.  
Source:  “Court Summaries By:  Timothy L. Clawges Pennsylvania Bar News (September 16, 2013).  
Anyone wishing to review this Williams decision, may click this LINK.
Source of photo (NOT the actual ramp in this case):

Changes Being Considered to Federal Rules of Discovery

Here's a LINK to a post from the excellent Drug and Device Law Blog last week (9/26/13) outlining changes being considered to certain Federal Rules of Procedure pertaining to the scope of allowable discovery.  The blog post provides information on how interested parties may weigh in on the issue.

Friday, September 27, 2013

Excess Verdict Bad Faith Complaint Allowed to Stand in Pennsylvania Federal Middle District Court

In a bad faith decision which was handed down back around the beginning of 2013 in the case of Dolph v. Ill. Nat’l Ins. Co., NO. 3:12-2167, 2013 U.S. Dist. LEXIS 20158 (M.D. Pa. Feb. 11, 2013 Mannion, J.), Judge Malachy E. Mannion of the Federal Middle District Court addressed a motion to dismiss a bad faith claim that was filed after the entry of an excess verdict in an underlying motor vehicle accident litigation.

In this matter, the defendant insurance carriers were sued for bad faith and breach of contract by plaintiffs from an underlying tort suit stemming from injuries they sustained in a car accident. 

The plaintiffs had secured an assignment of the right to sue for bad faith from the underlying defendant who had $50,000 in liability coverage but was hit with a jury verdict that amounted to a little over $1.9 million dollars.  According to the Opinion, the underlying alleged tortfeasor defendant was allegedly driving under the influence at the time of the subject accident and died as a result of his own injuries from the accident.

 The assignees filed suit against two insurers, the named carrier and another insurance company that claimed to be a holding company.

The assignees alleged that the insured had a contract of insurance with the second insurer, entitling the assignees to proceed with their bad faith and breach of contract suit against both carriers.

The second insurer filed a motion to dismiss, arguing that it is not an “insurer” under Pennsylvania’s bad faith statute, but rather only a holding company that did not issue policies or collect premiums.

While Judge Mannion acknowledged that dismissal may be appropriate if that entity was not found to be an insurer, the court nevertheless denied the secondary insurer's motion because there were sufficient allegations in the Complaint asserting that an agent of both insurer-defendants handled the investigation of the assignor’s claims following the underlying personal injury trial.

Click HERE to review a copy of the Dolph Opinion.

I send thanks to Attorney David Rosenberg of the Pittsburgh law firm of Weber Gallagher for bringing this case to my attention along with the synopsis of the case found on the excellent "Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog" put out by the Philadelphia law firm of Fineman, Krekstein & Harris, which blog can be viewed HERE.

ARTICLE: The Battle Over Wage-Loss Claims

The below article of mine recently appeared in the Pennsylvania Law Weekly and is republished here with permission from the publisher ALM, Inc.

The Battle Over Wage-Loss Claims


Daniel E. Cummins, Esq.
Pennsylvania Law Weekly
September 17, 2013

One important part of the litigation of personal injury matters involves a battle of the experts over the wage-loss claims presented by the injured party.

Typically, the expert analysis of a plaintiff's wage-loss claims begins with the plaintiff securing and producing a vocational expert or economic expert report.

The Pennsylvania Rules of Civil Procedure provide a mechanism for a defendant to secure a vocational assessment of the plaintiff's claims as well under Rule 4010.1, titled "Evaluation of Earning Capacity."

Several wage-loss experts were interviewed for this article, including vocational expert William Walker of Walker & Associates in Fleetville, Pa., Sean Hanahue of Pennsylvania Advocates in Clarks Summit, Pa., and James W. Primm of Expert Vocational Services in Bridgeville, Pa. Economics expert Chad Staller of the Center for Forensic Economic Studies in Philadelphia was also consulted.

Documents Reviewed

All of the wage-loss experts interviewed noted that with a vocational and economic loss assessment, a review of the injured party's earnings history record is of paramount importance. All of the experts recommended securing documentation that would confirm the injured party's earnings history for at least the past 10 to 15 years.

Obviously, any documentation substantiating earnings after the event should also be secured and provided to the expert to analyze.

Hanahue said this documentation could include tax returns, W-2 statements and Schedule C forms for those who are self-employed. According to Hanahue, these more specific tax documents may spell out an individual's earnings in situations where that individual files a joint tax return with a spouse. Primm recommended securing this type of documentation for at least several years before and after an accident.

Walker also advocated attempting to secure the individual's Social Security earnings statement printout to provide a nice overview of a person's earnings history.

The experts all emphasized that employer's records are important, especially the file of the injured party's employer at the time of the injury. The vocational experts interviewed additionally suggested securing the employment files for the plaintiff's employers within the 10 years leading up to the injury and any subsequent employment record.

Most wage-loss experts will also require a review of the deposition transcript of the injured party, and may additionally find it helpful to also read the deposition of the plaintiff's spouse.

In terms of medical records, Walker emphasized the importance of select documents, such as the treating physician's office notations. Also, operative reports, narrative reports and independent medical examination reports are all pertinent to the analysis. Hospital records are important but can be limited to the admission record and discharge summary.

Other medical records that may prove important in the analysis include any functional (or physical) capacities evaluation forms. Such forms may outline an injured party's functional capacity to work, including any limitations or restrictions placed upon the party in terms of sitting, standing, walking, bending, squatting, driving and the like.

Primm said that in addition to the medical documentation, he also seeks out work release forms in the medical records to determine if such information is consistent with the party's return to work after an accident.

Walker also recommended that parties be on the lookout for other pertinent records, such as Social Security Administration records or any records pertaining to the receipt of short- or long-term disability benefits.

Primm and Hanahue emphasized that a vocational expert can never have enough documentation. They said that the best attorneys they work with send them all discoverable information contained in the file. Not only does this expand the scope of the expert's testimony as supported by documentation, but the provision of more information to the expert may eradicate any cross-examination based upon the expert having insufficient information for the analysis.

In terms of records to be reviewed by an economic expert, Staller said that in addition to the vocational experts' reports, economists typically request the pleadings to be sure as to the types of economic damages that have been pleaded and are at issue. Economists also benefit from a review of any and all tax information that may be secured.

Another document economists like to review that is often overlooked in injury matters is the plaintiff's employment file. The employment file often provides a cornucopia of information, from personal historical wage growth, attendance and propensity to work overtime hours to actual fringe benefits received.

The economist should also be provided all relevant medical reports (independent medical evaluations, vocational reports, functional capacity evaluations). Economic damages do not occur in a vacuum. The assumptions made by the economist must be tied to the facts in the case, which may include pre-existing medical conditions and prior drug or alcohol abuse that may impact work or life expectancy.

Advice for Attorneys at Depositions

All of the experts interviewed noted that it is obviously helpful when appropriate questions are directed to the injured party at the deposition regarding their work history and tax information.

Both Primm and Walker noted that, all too often, counsel only ask generalized questions on the wage-loss claims before quickly moving on to other topics at depositions. Often, there are gaps in the party's employment history that are not fully explored during the deposition.

Where a wage-loss claim is anticipated, the experts recommend direct and pointed questions exploring in detail where the plaintiff worked, the name of the employers, the injured party's job titles, the duration of each employment (from this date to that date), the rates and manner of pay, and annual earnings.

Hanahue also recommended that a plaintiff's tax records be reviewed prior to the deposition in order to discover areas that may need to be clarified at the deposition.

Hanahue also noted that if there has been an interruption in workforce participation, deposition questions as to whether this work interruption is health-related, related to an inability to find work or a lack of job availability may be helpful in the analysis.

Where a loss of future earnings is claimed, or a claim is made that a plaintiff may have to retire early as a result of the subject accident, it may also be advisable to explore the plaintiff's family medical history to determine if there is any history of morbid conditions that may otherwise serve to shorten the injured party's anticipated lifespan.

Staller, the economist, also recommended a review of any fringe benefits a party may be entitled to in his or her employment. Another topic typically overlooked at depositions from the economist's analysis is an exploration of the extent of the injured party's provision of household services at home.

Vocational Interview of the Plaintiff

Whether on the plaintiffs side or the defense side, after a review of the records provided, including the transcript of the plaintiff's deposition, the vocational expert will typically conduct a vocational interview of the injured party as part of the analysis.

The vocational experts interviewed generally noted that the vocational interview process usually lasts between 45 minutes and two hours, depending upon the complexity of the case and the thoroughness of the previously completed deposition of the injured party.

Hanahue generally noted that regardless of whether the expert is retained by the plaintiff or the defense, areas covered in a vocational interview typically include a person's work history, educational history, daily living skills and feedback regarding how the accident under review has impacted the inured party's ability to work.

Questions requiring injured parties to describe how the injuries have affected them physically are generally allowed. This topic is usually followed by questions seeking an updated status on the plaintiff's current condition, treatment and medication regimen to determine if the subjective complaints of the plaintiff are being medically addressed.

Direct Examination of Expert

All of the experts interviewed were consistent in their tips for conducting the direct examination of a vocational or economic expert at trial. The experts recommended allowing the expert to control the testimony by asking the expert short, open-ended questions that follow the format of the expert's report. The direct examination should be utilized to emphasize important points and point out differences between your expert and the opposition's expert.

Keep in mind that by the time the vocational or economic expert testifies, the jury usually has already heard much of the medical and wage information at least once. As such, this additional testimony on the topic should be as concise and to the point as possible.

The objective foundation for the expert's opinion should be emphasized and explained to the jury or fact-finders in each case in as basic terms as possible.

Cross-Examination of Expert

On cross-examination, the experts noted that you should not expect to get the opposing expert to change his or her opinion in favor of your client's position.

It is instead recommended that counsel ask pointed questions to bring out useful information for closing argument.

The experts interviewed noted that, at times, they discover on cross-examination that the retaining attorney has not provided them with all of the pertinent information to include in the opinion, which can prove uncomfortable on the witness stand. Attorneys should therefore look for gaps in the information provided to the opposing expert.

The experts interviewed additionally noted that engaging in badgering arguments with the witness typically does not play out well in front of the jury and often results in a loss of the focus of the cross-examination.


The utilization of a vocational expert or an economic expert for trial can drastically alter the value of a particular claim. Application of the above tips from such experts may serve to assist the litigating attorneys in realizing the full potential of retaining such an expert. 

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

Wednesday, September 25, 2013

Encouraging Attorney Civility During Depositions

Here is a LINK to an excellent article by Thomas G. Wilkinson, Jr., Esq. and Jordan Fox of the Philadelphia office of Cozen & O'Connor entitled "Encouraging Attorney Civility During Depositions: The Enduring Impact of Hall v. Clifton Precision" which was published in the July 2013 edition of the Pennsylvania Bar Association Quarterly.

The article serves as an excellent primer for young and old alike regarding professionalism and proper conduct to be utilized at depositions. 

The article begins with a quote from United States Supreme Court Chief Justice Warren E. Burger in part of which Justice Burger states, "I submit that lawyers who know how to think but have not learned to behave are a menace and a liability, not an asset, to the administration of justice."

The article goes on to review the 1993 decision in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993 by the late Judge Robert S. Gawthrop III as a guide for the regulation of attorney conduct at depositions.  Generally, the decision all but abolished attorney-client conferences before answering a pending question, attempted to prevent witness coaching, and limited the type and manner of objections allowed.

The article goes on to give interesting examples from actual depositions.  Overall, the article is an excellent read.

I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this article to my attention.  I also thank Attorney Wilkinson for granting permission to link to the article from Tort Talk.

Tuesday, September 24, 2013


Lackawanna Pro Bono's
5th Annual Fundraising Gala
Michael and Nada Gilmartin
Attorney Andrew J. Hailstone
Monsignor Joseph P. Kelly


6:30PM to 8:30PMScranton Cultural Center Ballroom

Major Sponsor: Lackawanna Bar Association

Honorees will receive the Attorney Robert W. Munley Distinguished Service Award
Cocktails and Hors D'Oeuvres
Tickets $150 per person  

Program Book Ad Opportunities Available from $100 through $5,000

Ad Deadline: October 10, 2013 ¨ RSVP by October 17, 2013

Please contact Lackawanna Pro Bono at (570) 961-2714 or

The official registration and financial information of Lackawanna Pro Bono, Inc. may be obtained from the Pennsylvania Department of State by calling toll-free, within Pennsylvania, 1-800-732-0999.   Registration does not imply endorsement.
Lackawanna Pro Bono has requested me to advertise this event here on Tort Talk.  Neither I nor Tort Talk are otherwise affiliated with this event.

Monday, September 23, 2013

Summary Judgment For Defendant Based Upon Exculpatory Clause in White Water Rafting Case

Western District of Pennsylvania Federal Court Judge Mark R. Hornak granted summary judgment to the defense in his recent decision in the case of Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. Lexis 119206 (W.D. Pa. Aug. 22, 2013 Hornak, J.), after finding that a release signed by plaintiff precludes liability for injuries suffered in a white water rafting accident. 

In this matter, prior to engaging in the white water rafting trip, the Plaintiff signed contract for the provider of this recreational activity which contract contained release from liability language.  The release repeatedly referenced negligence and advised the signor to read it carefully. 

The court ruled, in part, that a release does not have to be directly above the signature to be enforceable. 

Judge Hornak also ruled that the record before him established that the Plaintiff voluntarily signed the document, even if she claims she did not read it.  It was also noted that, under Pennsylvania law, an alleged failure to read does not nullify an otherwise valid contract.  The court also repeatedly emphasized that the plaintiff voluntarily chose to undertake the activity of white water rafting and its attendant risks.

As Judge Hornak was able to reach his decision based upon the release language in the contract for this recreational activity, he did not address the defendant's alternative argument that the defendant did not owe any duty to protect the plaintiff from being thrown from the raft and injured as that was an inherent risk of white water rafting.

Anyone wishing to review this Opinion by Judge Hornak in Wroblewski may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm and writer of the excellent DRUG AND DEVICE LAW BLOG for bringing this case to my attention.

Thursday, September 19, 2013

Gist of the Action Doctrine Accepted for Review by Pennsylvania Supreme Court

In the case of Bruno v. Erie Insurance Company, No. 347 WAL 2012 (Pa. Sept. 11, 2013), the Pennsylvania Supreme Court has included the “gist of the action” doctrine in one of its questions accepted.  According to Attorney James Beck of the Philadelphia Office of Reed Smith and writer for the excellent Drug and Device Law Blog, the Pennsylvania Supreme Court has never accepted or rejected this defense.

As described by Attorney Max Kennerly of the Beasley Firm in Philadelphia in his excellent Litigation & Trial blog, "the 'gist of the action' doctrine precludes negligence claims where, under the facts alleged, the defendant has no duty to the plaintiff except for those created by contract. The “gist” is contractual — there are no duties between the parties except for those created by the contract."

Attorney Kennerly cited the following:  "Under Pennsylvania law, the gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) citing Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992). The difference between a cause of action for tort and breach of contract is that “tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash, 601 A.2d at 829. A breach of contract may give rise to a tort claim only when defendant’s wrongful conduct is the gist of the action, and the contract is collateral. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 582 (Pa. Super. Ct. 2003) citing Bash, 601 A.2d at 829)."

Anyone wishing to review the Pennsylvania Supreme Court's Order in Bruno may click this LINK.

I send a "thanks" to Attorney James Beck of the Philadelphia office of Reed Smith for the heads-up on this Order.

Superior Court Reverses Limited Tort Summary Judgment in Non-Precedential Opinion

The Pennsylvania Superior Court recently issued a "non-precedential" Opinion in the limited tort case of Cadena v. Latch, No. 1891 MDA 2012 (Pa. Super.  Sept. 13, 2013 Gantman, J., Allen, J., and Mundy, J.) (mem. by Mundy, J.).

In Cadena, the Superior Court panel reversed the trial court and ruled that the trial court abused its discretion in granting Summary Judgment for the Defendant on the issue of whether the plaintiff's injuries breached the serious injury threshold of the limited tort option. 

According to the opinion, the Plaintiff was diagnosed with eight ailments related to the collision all of which allegedly changed her life.  The record before the court revealed evidence that the plaintiff continued to experience pain in neck, back, legs, along with headaches, could no longer drive, could no longer sit or stand for long periods, missed her children's' activities, and that she had decreased sexual activities. 

The Superior Court also noted that, although medical treatment discontinued years ago, it was allegedly due to lack of insurance. 

Applying the precedent of limited tort cases to the facts of the case before it, the Pennsylvania Superior Court concluded that  reasonable minds could differ as to whether plaintiff sustained a  "serious injury" and, as such, the trial court's entry of summary judgment was reversed.

Anyone wishing to review this "non-precedential" Opinion by the Superior Court in Cadena, may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA law office of Dougherty, Leventhal & Price, as well as Scott Cooper, Esq. of the Harrisburg, PA law office of Schmidt Kramer, for bringing this case to my attention.  I note that Attorney Cooper cited Bill Mabius of the Pennsylvania Association for Justice for publicizing this case as well.

Wednesday, September 18, 2013

Dauphin County Court Rules on Parameters of Neuropsychological and Vocational Exams

As noted in a recent Tort Talk blog post, Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas took the middle road in the case of  Marion v. Lukaitis while addressing the issue of third parties being in attendance during a neuropsychological IME of a plaintiff in a personal injury matter. 

More specifically, Judge Minora  held that a Plaintiff was allowed to have counsel present during the first two components of a neuropsychological examination.  However, the Lackawanna Court ruled that, once standardized testing began, a Plaintiff was precluded from having a third party present.  Click HERE to view that Tort Talk post, which contains a link to Judge Minora's actual Opinion as well as a link to a decision by Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas on the same issue.

Another recent decision along these lines was recently handed down in the Dauphin County Court of Common Pleas by Judge Bernard L. Coates, Jr. in the case of Sanderson v. Geiger, 2011-CV-8539 (C.P. Dauphin Co. Aug. 22, 2013 Coates, J.).  As noted below, Judge Coates allowed for wider parameters for the defense-arranged examinations of the plaintiff.

By Order only, Judge Coates ruled in Sanderson that the "Plaintiff's attorney or representative shall be permitted to be present during all aspects of the examinations, without exception," in reference to the neuropsychological exam, the independent medical exam, and the vocational interview and testing set up by the defense.

Judge Coates also ruled that the "Plaintiff, at her expense, shall be permitted to audio record the entire IME, including the objective testing portion."  I was advised that this portion of the Order applied to all of the above-noted exams set up by the defense.

The court additionally ruled that the defense had to pay for the expenses for a hotel room for the Plaintiff to stay in the night before her examinations to which she had to travel a distance.  Plaintiff's counsel sought out this relief so as to allow the Plaintiff to walk into the testing "fresh" and to prevent the Plaintiff from having to undergo such examinations after a long drive, which could arguably impact the Plaintiff's ability to test and alter the results.

In his Order, Judge Coates also required the Plaintiff's experts and the defense experts to engage in a simultaneous exchange of all raw data, testing documents, expert reports, and any other documents generated by the experts so as to prevent one side's experts from having information before the other side's expert obtained the same information.

Anyone wishing to review Judge Coates detailed Order may click this LINK.

I send thanks to Attorney Robert F. Claraval of the Harrisburg, Pennsylvania law firm of Claraval & Claraval for bringing this decision to my attention.

Source of image:

Tuesday, September 17, 2013

Judge Williamson of Monroe County Denies Summary Judgment in Premises Liability Case Based on Constructive Notice Issue

In Signorile v. Fernwood Hotel and Resort, PICS Case No. 13-1525 (C.P. Monroe Co. May 29, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas denied a Defendant’s Motion for Summary Judgment in a premises liability case.  
Judge David J. Williamson
Monroe County

According to a summary of the Opinion, the Plaintiff was allegedly injured on the Defendant’s premises when she entered the sauna area of the resort and stepped on a rusty screw which pierced her foot.

After discovery on the matter, the Defendant moved for summary judgment asserting that the Plaintiff failed to establish actual or constructive notice of the dangerous condition of the screw on the floor that allegedly caused the Plaintiff’s injury. 

Reviewing the record in the light most favorable to the Plaintiff as required by the applicable standard of review, Judge Williamson noted that there was evidence presented that, at the time of the incident, a pool attendant was monitoring the area.   The record before the court also established that all pool attendants received three (3) days of training during which they were instructed to sweep the area once every hour.  

Judge Williamson stated in his Opinion that “[t]he amount of time that a dangerous condition existed is one of the most important factors when analyzing whether a Defendant has constructive notice” of a dangerous condition.  

In this matter, the Court found that their was a genuine issue of material fact as to whether or not the Defendant had constructive notice of the screw being present on the deck of the pool at the time of the accident.   The Court stated that there was evidence presented that the screw could have been on the floor for an hour that the issue of constructive notice remained an open issue of fact to be decided by the jury at trial.  

Stated otherwise, the Court found there was a jury issue as to whether or not the Defendants had the reasonable ability to discover and correct the problem before the Plaintiff’s alleged injury.  

The court also noted that the Plaintiff testified that she had a conversation with two (2) witnesses who believed that the screw came from a nearby sauna door that had a maintenance problem.    Judge Williamson further noted that, if a jury were to believe the testimony of those witnesses, that evidence was also enough to create a genuine issue of material fact on the constructive notice issue.  

Accordingly, the Defendant’s Motion for Summary Judgment was denied thereby preventing the Plaintiff from getting screwed twice. 

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

Source:  “Digest of Recent Opinions," Pennsylvania Law Weekly (August 27, 2013)”    

Monday, September 16, 2013

Federal Western District Court of PA Decision Allowing Punitive Damages Claim Based Upon Alleged Cell Phone Use in Trucking Accident Case

In his recent decision in the case of Scott v. Burke, 2013 U.S. Dist. Lexis 123432 (W.D. Pa. Aug. 29, 2013 Hornak, J.), Western Federal District Court Judge Mark R. Hornak granted a plaintiff's motion to amend the Complaint to add a punitive damages claim based upon a defendant tractor trailer driver's alleged cell phone use at the time of the subject accident.  The court also denied the defendant's motion for judgment on the pleadings on this issue and other issues presented.

Judge Hornak declined the defendant's invitation to conclude, as a matter of law, that allegedly merely glancing down at cell phone momentarily did not constitute valid support for a punitive damages claim.  The court noted that a dismissal of such a claim at this early pleadings stage of a matter was inappropriate particularly where it was alleged that the tractor trailer driver allegedly rear ended and killed the plaintiff as result.  The court noted that the issue may be ripe for reconsideration at the conclusion of discovery.

The court otherwise ruled that alleged evidence showing that the defendant’s driver was talking on a cell phone at or about the time of the accident creates a reasonable inference that the driver was willfully inattentive, thus permitting amendment of the complaint to add punitive damages.

Anyone wishing to review this Opinion in the Scott case by Judge Hornak may click this LINK.

Anyone wishing to review other Tort Talk blog posts on Cell Phone Use while driving, may click this LINK.  

You can also always view those posts by going to the Tort Talk blog at and scrolling all the way down the right hand side of the blog to the "Labels" section and, under that, click on the Label for "Cell Phone Use."

I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this Scott v. Burke case to my attention.

Source of

Sunday, September 15, 2013

TORT TALK as a Legal Research Tool

Most Tort Talkers receive their Tort Talk info by way of email. If you have ever had the situation where you thought "I know I've seen a recent case on Tort Talk on this issue," this blog post is for you.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve a a kickstart to your research if you actually go to the Tort Talk site at On the site itself there are a number of research tools to help you find the case or cases or article you are looking for.

Note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue presented elsewhere to ensure that you have a thorough review of the area of law in question.

Here are the Tools available on Tort Talk:

Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on each post that comes up to read further.

Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Also down on the right hand column of the blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic. By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic. You can then click on each blog post title to read further.

My Published Articles

Down in the middle of the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the website. If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

I note that the Pennsylvania Law Weekly does not allow me to post my articles on the JDSupra site as that site is considered a competitor. However, I am permitted to post my Law Weekly articles on Tort Talk which I have done since I started the blog. You can find those articles by typing in key words or terms into the Search this Blog box. Please also feel free to email me directly for a copy of any of my articles that you may be looking for(


Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support.

If I should be able to you help out in any way, please do not hesitate to contact me at

Friday, September 13, 2013

Judge Minora of Lackawanna County Takes the Middle Road on Neuropsychological IME Issue

In his recent decision in the case of Marion v. Lukaitis, No. 11-CV-7451 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas held that a Plaintiff was allowed to have counsel present during the first two components of a neuropsychological examination.  However, the Court ruled that, once standardized testing began, a Plaintiff was precluded from having a third party present.   As such, Judge Minora took a middle road and the Defendant’s Motion for a Protective Order was granted in part and denied in part in this motor vehicle accident litigation.
Judge Carmen D. Minora
Lackawanna County
Judge Minora relied on Pa. R.C.P.  4010 and stated that, “[a]lthough there appears to be no Appellate guidance on this specific matter, other Pennsylvania Common Pleas Courts have concluded the words of Pa. R.C.P.  4010 are clear, and a party being examined has the right to have counsel present during a mental examination.”  
Judge Minora cited the Allegheny County Court of Common Pleas case of Rotunda v. Petruska, (C.P. Allegheny Co. January 13, 2011).  Judge Minora stated, however, that there is an exception to Rule 4010 that provides that, if  a treating physician who performed testing in the absence of a third party “will be offering opinion testimony at trial for which an expert opinion must be filed that makes any reference to the testing.”  
The defense in this matter also relied upon Pa. R.C.P.  4012 which allowed a party to request from the court, for good cause shown, any order with justice required to protect a party or person from unreasonable annoyance, embarrassment, oppression burden, or expense.  
In order to accommodate both Rules 4010 and 4012, Judge Minora chose to allow the Plaintiff’s counsel, or a designated representative of the Plaintiff, to be present during the first two components of the neuropsychological examination involving a review of the Plaintiff’s records, medical history, and background information.   However, once standardized testing began, the Plaintiff was precluded from having a third party present.

The court also held that audio or video recording of the standardized testing portion of the examination would be prohibited as well.  

Anyone wishing to review Judge Minora's Opinion in the Marion case may click this LINK.

The Tort Talk blog post on Judge Wettick's decision in the Rotunda case on the same issue can be viewed HERE.

Source:  "Digest of Recent Opinions,"  Pennsylvania Law Weekly (September 10, 2013).

Source of Cartoon:  "The Far Side" by Gary Larson.

Wednesday, September 11, 2013

Summary Judgment Granted in Lackawanna County Food Fight Slip and Fall Case

Summary Judgment was granted in the recent Lackawanna County Court of Common Pleas decision of Rovinsky v. Lourdesmont, No. 2011-CV-2304 (C.P. Lacka. Co. June 19, 2013 O’Brien, S.J.) by senior visiting Judge Peter O’Brien in a slip and fall case that arose out of a cafeteria food fight.  

According to the Opinion, the Plaintiff was present at the Lourdesmont facility as a business invitee.   She was performing as a lunch monitor in the cafeteria area when a food fight broke out.   As the Plaintiff was exiting the cafeteria after the food fight, she allegedly slipped on a clearest/reddish fluid and was allegedly injured.  

After discovery, the Defendant filed a Motion for Summary Judgment arguing that the Plaintiff’s deposition testimony demonstrated that the Plaintiff was aware of the risk created by the food fight and that she voluntarily chose to encounter such risk.  According to the record before the Court, the Plaintiff admitted that, prior to slipping, she saw food, water, and juice on the floor of the cafeteria.   However, immediately before she fell, she did not look at the ground in front of her when she slipped on the clearest/reddish fluid.  

Relying primarily on the assumption of risk case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), Judge O’Brien found that summary judgment should be granted as the Plaintiff was aware of the opening obvious condition of the debris on the cafeteria floor.   He also noted that the record revealed that the Plaintiff proceeded to exit the cafeteria without looking at the floor in front of her which resulted in her fall.   Judge O’Brien emphasized that the Plaintiff’s testimony demonstrated that she was aware of the danger and nevertheless chose to voluntarily navigate through it. 

Under Carrender, a possessor of land does not owe a duty of care to an invitee when the danger or hazardous condition is known or obvious and invitee continues despite the presence of the condition.   Judge O'Brien granted summary judgment on the basis of that precedent in this Rovinsky case. 

It is noted that summary judgment was entered as to less than all of the defendants.  A claim against the culinary management company that ran the cafeteria is ongoing.

I send thanks to Attorney Lauren Dobrowalski of the Scranton law firm of Cipriani and Werner for forwarding this Opinion to my attention.   The defense was handled by Attorney Daniel Stofko in her office. 

 Anyone desiring a copy of this Opinion may contact me at
Source of photo:  John Belushi from Animal House (1978).


Monday, September 9, 2013

Article Summarizing Recent Trend of Cell Phone/Auto Accident Cases

Here is a LINK to a September 9, 2013 article by Max Mitchell of the Legal Intelligencer entitled "Distracted-Driving Cases Are on the Rise in Pa." which outlines the recent trend of cell phone cases in Pennsylvania and other jurisdictions and ends with a somewhat saucy quote from myself.  Please pardon my language. (And if you have trouble accessing the article online, please let me know).

To review all of the Tort Talk posts on Cell Phone cases, you can always visit Tort Talk at and scroll all the way down the right hand column of the blog to the "Labels" section and click on the Label for "Cell Phone Use."  Here's a quick LINK to that page for your easy reference now.

Judge Williamson of Monroe County Allows Punitive Damages Claim to Survive Pleadings Stage in Slip and Fall Case

In his recent decision in the case of Ulrich v. Bracey’s Mount Pocono, Inc., PICS Case No. 13-1524 (C.P. Monroe Co. May 28, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed Preliminary Objections filed by Defendant in a slip and fall case.

Of note, the court denied the Defendant’s demurrer to the Plaintiff’s claim for punitive damages after concluded that a jury could find that the Defendants allegedly acted with reckless disregard for customer safety by failing to stop ice from forming next to a gas pump at the Defendant’s gas station. 
Judge David J. Williamson
Monroe County

According to a summary of the Opinion, the Plaintiff was allegedly injured when she slipped and fell on a patch of ice next to a gas pump that was position beneath an overhang at the mini-mart location.   The Plaintiffs alleged that the Defendants knew or should have known that defects in the overhang allowed ice to form next to the gas pump such that it created a serious and dangerous condition to business invitees.  

The Court refused to allow a demurrer to the punitive damages count based upon these allegations as, accepting the Plaintiff’s allegations as true as required by the applicable standard of review, a jury could conceivably find that the Defendants acted in reckless disregard for the safety of their customers if they allegedly knowingly allowed water to accumulate into the dangerous condition that allegedly existed at the time of the accident. 

Accordingly, foreshadowing that the issue could be readdressed after discovery, Judge Williamson found that it was premature to dismiss this particular claim at this early pleadings stage point of the litigation.

As such, the Court overruled the Defendant’s Preliminary Objections to the Plaintiff’s claim for punitive damages.  

Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source:  “Digest of Recent Opinions," Pennsylvania Law Weekly (August 20, 2013).

Household Exclusion Found Ambiguous in Blair County Case

In her August 5, 2013 Opinion and Order from the Court of Common Pleas of Blair County in Riley v. Harleysville, No. 2013 GN 19 (C.P. Blair Co. Aug. 5, 2013 Doyle, P.J.), President Judge Elizabeth A. Doyle addressed the application of the household exclusion in an underinsured motorist (UIM) case. 

At the time of the accident, the injured party was operating a vehicle owned by a plumbing company and a co-purchaser who was her husband.  The plaintiff recovered against the tortfeasor and under the UIM policy covering the vehicle she was in at the time.  

She then turned her personal auto policy with Harleysville for excess UIM coverage.  Harleysville denied the claim under the household exclusion in the policy.

Judge Doyle ruled that the exclusion did not apply in this case because it was ambiguous under the circumstances presented.  More specifically, the court found that the definition of "you" in the Harleysville policy was deemed to be ambiguous under the facts of the case.  The injured party was therefore permitted to recover UIM benefits.

A review of the Opinion itself will clarify why the court found the definition of “you” in the context of this case.  Anyone wishing to review the Riley opinion may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.


Tuesday, September 3, 2013

Postscript to Yesterday's Post on NJ Decision and Van Halen Reference

In yesterday's post, I reviewed the decision out of New Jersey allowing the sender of a text message to be potentially held liable in a distracted driver case and, in doing so, suggested that that extension of the law was a bit of a stretch.

In offering this opinion, I made a reference to an extreme example of distracted driving possibly caused by blasting "Panama" by Van Halen and playing air guitar.

It has come to my attention that a number of readers were not aware that, if you clicked on the word "Panama" in that post, it would take you to that video and on a trip down memory lane back to the 80s.  I have edited the post to prompt people to click on that link.

Anyone wishing to review the post again and experience the post in full by taking that trip back to the 80s by clicking on "Panama," can click this LINK to go back to that post.

Thanks and enjoy (just make sure the volume's not too loud on your computer before you click!).

Article Analyzes Large Bad Faith Verdicts Out of Northeastern Pennsylvania

Here's a link to a September 3, 2013 article by Zack Needles in The Legal Intelligencer entitled "For Northeastern Pa., Large Bad-Faith Verdicts Common" in which I was able to provide a quote.

Here's the LINK.

To review recent bad faith decisions from around the Commonwealth analyzed here on Tort Talk, you can always go to and scroll all the way down the right hand column of the Blog to the "Labels" section and, under that, click on "Bad Faith" to take you to all of the posts on that topic.

Here's a quick LINK to that Bad Faith Label on Tort Talk for your easy reference now.

NJ Case Opens Door (in NJ) For Liability of Text Message Sender in Distracted Driver Auto Accident Cases

Previous cases on cell phone use here in Pennsylvania have focused on the liability of a defendant driver allegedly causing an accident by being distracted from the road ahead by some form of cell phone use (dialing, answering, talking, texting, etc.).

Now comes a New Jersey Appellate Division decision in the case of Kubert v. Best, No. A-1128-12T4 in which the court held that the sender of a text message may be held liable in New Jersey for injuries caused by the distracted driving of the text recipient if the plaintiff can prove that the sender of the text knew or had special reason to know that the recipient would view the text while driving and would be distracted by it.

I usually try to remain objective and keep my opinions out of Tort Talk posts as being irrelevant but I can't resist here.

In Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), Justice Cardozo defined the concept of proximate causation by stating "the risk reasonably perceived defines the duty to be obeyed and risks imports relation;  it is to another or others within the range of apprehension." 

This Kubert opinion out of New Jersey appears to stretch Justice Cardozo's concept of foreseeability from the Palsgraf decision that we all learned in law school to unrecognizable bounds.

What's next--the ability to sue the telecommunications company for allowing us to all the ability to send text messages?  

How about allowing an injured plaintiff to sue Van Halen because the band knew or should have known that a defendant driver would take his hands off the wheel to play air guitar while blasting "Panama?

Why not then the ability to sue a gas station or a major gas company for selling gas to a defendant driver because the owners of the gas station or gas company knew or should have known that the driver could some day be in a car accident?

More realistically, will the slippery slope someday be extended to allow an injured plaintiff's to sue a passenger in a defendant driver's car because the defendant driver looked over at a passenger while the passenger was talking and, as a result, rear-ended the car ahead?

The above examples are a bit extreme, but where can the line be drawn in a concrete and workable fashion after decisions like this?

(Now you see why I keep my opinions out of it....where else could you find a reference to Justice Cardozo and Van Halen in the same context?)

Anyone wishing to review the decision of the New Jersey Appellate Division in the case of Kubert v. Best may click this LINK.

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