HAPPY HALLOWEEN

HAPPY HALLOWEEN GREETINGS

FROM

TORT TALK

 

 

I invite Defense attorneys to "dress up" as Plaintiff's attorneys in their mindset just for a moment on this Halloween day and picture the difficulties and pressures faced by attorneys on that side of the bar. 

I also invite Plaintiff's attorneys to don the costume of a defense attorney's mindset, if only for a brief moment, and think of the burdens and stress faced by defense attorneys. 

 

I then also invite all attorneys on both sides of the civil litigation bar "to be" claims professionals for Halloween for a moment in their minds today and realize the pressures and stresses faced by those individuals in their livelihood.

Similarly, all claims professionals are invited "to be" attorneys for a few moments as a Halloween costume and think of the responsibilities and strains that each profession imposes upon its participants day in and day out.

 

By being considerate of the position of others and by viewing the world from the perspective of the opposite side, we may all be reminded our way is not the only way and that we are all willing participants in the noble pursuit of the fair administration of justice and compensation in the civil litigation world. 

 

By working together in a reasonable and professional fashion, we can all strive to further this noble and honorable pursuit, uplift the reputation of the respective professions, and continue to ward off the scary thought of the alternative--the resolution of compensatory disputes in the absence of law and order.

 

******************************

Whew!.......enough of that heady stuff.  Now go raid your kid's Halloween bag for the good stuff.

 

 

Source of image: www.dtntech.com

 



 

Summary Judgment Denied in Rejection of UIM Coverage Case

In an Opinion and Order, the Court of Common Pleas in Franklin County in the case of Blake v. Progressive Specialty Ins. Co., 31 Franklin Co. L. J. 60 (C.P. Franklin Co. 2013 Herman, J.), denied a Plaintiff-insureds' Motion for Summary Judgment in a Declaratory Judgment action because genuine issues of material fact were found to exist with respect to whether underinsured motorist coverage (UIM) coverage was offered and discussed, and whether the insured-husband signed the UIM rejection form. 

The Blake case involved a motor vehicle accident matter in which the vehicle injured party Plaintiff was rear-ended by the tortfeasor's vehicle.  The tortfeasor's carrier tendered its $25,000 limits and the Plaintiff then turned to his own automobile insurance policy with Progressive Insurance for Underinsured (UIM) coverage.

Progressive basically said, "Not so fast" and produced an executed rejection of UIM coverage form applicable to the policy signed by the injured party's wife.

The injured part Plaintiff filed a declaratory judgment action asserting that the rejection of UIM coverage was not properly secured from the insureds.

In Blake, the insured-husband contended that during the phone conversation he had with the agent that UIM coverage was never specifically discussed and that he requested "full coverage."  Also, the insured-husband asserted that he did not know what UIM coverage was and that he had not authorized his wife to sign his name to a UIM rejection form.

According to the Opinion, the rejection form that the insurer produced contained the husband's signature but the wife who picked up the insurance forms testified that she signed her husband's name per instructions from the agent.   

The agent, however, testified that she did not recall the transaction of the purchase of the policy or the interaction with the insureds but stated that her business practice was to explain UIM coverage to clients, offer different default coverages and levels than what the insureds eventually purchased, and that she would not let one spouse sign for the other. 

The Franklin County trial court found that material issues of fact and testimony were in dispute and, as such, the carrier's motion for summary judgment was denied in order to allow the case to proceed to a jury to decide the matter.

Anyone wishing to review this Opinion in the Blake case may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.  In turn, Attorney Cooper acknowledged the efforts of Bill Mabius of the Pennsylvania Association for Justice in publicizing this Opinion.

Eastern District Federal Court Reaffirms Commencement Date for UIM Statute of Limitations

On October 28, 2013, Judge Jan E. DuBois of the Eastern District Federal Court of Pennsylvania issued an opinion in the case of Wilson v. Great American Insurance Company, NO. 2:12-CV-5700 (E.D. Pa. Oct. 28, 2013 DuBois, J.), on the issue of the commencement date for the statute of limitations in an underinsured motorist (UIM) benefits claim.

The insurance company argued that the statute of limitations in a UIM case can be deemed to start to run when the underlying liability carrier tenders its limits. The insured Claimant countered that the commencement date should be when the third party release is signed.

The Eastern District Federal Court held in Wilson that the date the release is signed is the commencement date for the statute of limitations to start to run.

It has been repeatedly held in Pennsylvania that the statute of limitations in a UIM case is four (4) years.

Anyone desiring to review a copy of the Wilson case may click HERE

Commentary:  This decision in the case of Wilson v. Great American Ins. Co. is consistent with prior cases holding that the statute of limitations in a UIM case begins to run when the third party matter is settled or when a verdict is entered in the third party lawsuit.

In Hopkins v. Erie Insurance Company, 65 A.3d 452 (Pa.Super. 2013 Gantman, Allen, and Ott, JJ.)(Opinion by Allen, J.)(Concurrence by Gantman, J.), the Superior Court held that a UIM cause of action accrues when the third party case settled and not when the contract was allegedly breached when Erie denied the claim. In so ruling ,the Superior Court followed the reasoning of the united States Court of Appeals of the Third Circuit in State Farm v. Rosenthal, 484 F.3d 251 (3d Cir. 2007).

The Superior Court in Hopkins more specifically held that "the four-year statute of limitations on underinsured motorist claims begins to run when the insured settles with, or secures a judgment against, the underinsured owner or operator.”

Click this LINK to view the Hopkins decision. 

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

Source of image:  www.sandz.net

Are You Aware of the Benefits and Risks Associated With Relevant Technology?

According to an October 29, 2013 article entitled "Justices Add Tech Savviness to Professional Responsibility" in The Legal Intelligencer by Max Mitchell, the Pennsylvania Supreme Court has recently amended the Rules of Professional Responsibility to note a requirement that all Pennsylvania attorneys keep abreast of not only changes in the law but also, with the advancement of computer technology, the "benefits and risks associated with relevant technology" in the practice of law. 

Also emphasized was a greater need to take precautions against inadvertent exposure or disclosure of documents.

The article can be viewed online HERE.  If you have trouble accessing the article online, please let me know.

Source of image:  www.news.yahoo.com.

Motion to Bifurcate Post-Koken Trial Denied in Schuylkill County

In an October 22, 2013 Order without Opinion in the Post-Koken case of Post v. Schnerring and Liberty Mut. Ins. Co., No. S-1887-12 (C.P. Schuylkill Co. Oct. 22, 2013 Dolbin, J.), Judge Cyrus Palmer Dolbin of the Schuylkill County Court of Common Please denied Motions to Bifurcate the trial filed by both the underinsured motorists benefits (UIM) carrier, Liberty Mutual Insurance Company and the third party tortfeasor Defendant.

Anyone desiring a copy of this Order in Post v. Liberty Mutual may click this LINK.

The Tort Talk Post-Koken Scorecard has been updated with this case and other recent cases.  The Scorecard is always freely accessible by going to Tort Talk at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Post-Koken Scorecard."  Here's a shortcut LINK if you want to check it out now.

I send thanks to the prevailing Plaintiff's Attorney Michael Pisanchyn of the Pisanchyn Law Firm in Scranton, PA for bringing the Post case out of Schuylkill County to my attention.

I respectfully request the readers of Tort Talk to advise of any Post-Koken decisions you may hear of so that they can be publicized in an effort to inform all attorneys of the novel common law developing in this new era of Pennsylvania automobile litigation.

Judge Wettick Precludes Discovery of Documents Under Peer Review Protection Act

In his recent decision in the case of Scrima v. UPMC Mercy, PICS Case No. 13-2704 (C.P. Allegheny Co. Sept. 9, 2013 Wettick, J.), Judge R. Stanton Wettick ruled that the documents Plaintiff sought to discover which documents were prepared for purposes of reviewing the quality of medical services that were provided by a Defendant hospital were protected by the Pennsylvania Peer Review Protection Act (Pa. P.R.P.A.), 63 P.S. §425.1-425.4 and, therefore, not discoverable. 

Judge R. Stanton Wettick

Judge Wettick noted that, under the Pa.P.R.P.A., records and proceedings of a review committee established for the purpose of reviewing information related to the evaluation and improvement of patient care are considered confidential.  

However, documents or records that are otherwise available from other original sources are not to be construed as protected from discovery or for use in any civil action merely because they were presented during proceedings held by such a committee (known as the "original sources" exception).

After reviewing the record before him, Judge Wettick found that the original sources exception of the Rule did not apply.   Accordingly, the court ultimately ruled that the Plaintiffs remained free to examine the hospital staff concerning their knowledge of the circumstances surrounding the Plaintiff’s injuries, but that the Plaintiffs were precluded from inquiring about conclusions or recommendations resulting from the investigation into the matter. 

Anyone wishing to review a copy of this decision may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee for a copy.  

Source:  Pennsylvania Law Weekly “Digest of Recent Opinions (October 1, 2013).   

Judge Williamson of Monroe County Construes Parameters of a Release in MVA Case

In the Monroe County case of Hertzog v. Stafford, LLC, PICS Case No. 13-2524 (C.P. Monroe Co. July 10, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas ruled that a Plaintiff’s execution of a Release of “any and all claims” in favor of Enterprise Rental Company did not apply to claims that the Plaintiff raised against a Co-Defendant tortfeasor who was driving one of the Enterprise’s company cars when that Co-Defendant rear-ended the Plaintiff. 

According to a summary of the Opinion, the Co-Defendant driver tortfeasor filed Motion for Summary Judgment arguing that the claims against her were barred as the Plaintiff had signed a Release of “any and all claims” against Enterprise and “other persons” arising from the accident.  

Judge David J. Williamson
Monroe County

Judge Williamson rejected the Defendant’s argument and, citing Charles v. Giant Eagle Markets, 522 A.2d 1 (Pa. Super. 1987), reasoned that, generally speaking, unless a Release states otherwise, a Release of one tortfeasor does not serve to discharge other tortfeasors.  

The Court in this matter read the phrase “other persons” as referring to other persons within the employment of the Enterprise Rental Car Company, which the Co-Defendant driver was not.   The trial court also further pointed out that the phrase “other persons” was modified by the language “of and from” as contained in the Release and referring to Enterprise.  

As such, the court denied that Defendant’s Motion for Summary Judgment based upon the Release signed by the Plaintiff.

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

Source:  “Digest of Recent Opinions.”  The Pennsylvania Law Weekly (October 8, 2013).

Benevolent Gesture Bill Signed into Law In Pennsylvania

In follow-up to yesterday's Tort Talk blog post on the Benevolent Gesture Liability Act, I note that P.J. D'Annunzio of The Legal Intelligencer reported in today's edition of that paper that Governor Tom Corbett signed the bill into law yesterday, October 22, 2013.

Under the law Pennsylvania doctors can now apologize to patients and families in matters of medical malpractice without fear of having such apologies used against them in a court of law.

Here is a LINK to the article.  Please let me know if you can not access the article through the LINK.


Source of image: Schoolhouse Rock.

Summary Judgment Motions Denied in Berks County Slip and Fall Case

In a recent Berks County decision in the case of Kelley v. Rutherford, No. 11-23954 (C.P. Berks Co. Rowley, J.), the Honorable Timothy Rowley denied motions for summary judgment filed by all three Defendants in a matter involving a slip and fall on ice in a private alley.

Essentially, the court found that a genuine issue of material fact existed as to the ownership, possession, maintenance and control of the alley which was located in Reading, Pennsylvania.

The Plaintiff was an employee walking along an alley, which abutted the rear of certain homes when the Plaintiff slipped and fell allegedly due to the presence of ice.  The Plaintiff sued the abutting landowners of the alley closest to the location of the fall.

The Defendant landowners contended that they were not responsible for the maintenance, including the removal of snow and ice, of the alley.  Rather, the Defendants countered, the City of Reading was responsible for snow removal in the area of the Plaintiff's fall.

A representative of the City of Reading was deposed, who testified that not all alleys in the City of Reading are the City's responsibility.  Rather, the City of Reading was noted to have a topographical map outlining which alleys were under the City's responsibility at the time of the incident.  Therefore, Judge Rowley denied the motions  for summary judgment based upon the testimony and existence of genuine issues of material fact to be decided by a jury..

There was no formal Opinion.  The decision denying the motions for summary judgment were by Order only.  Should anyone wish to review the Orders, they may click this LINK.

I send thanks to the prevailing Plaintiff's attorney, Sean Fulmer, Esq., of the Philadelphia law firm of Master, Weinstein, Schatz, Moyer, P.C., for bringing these decisions to my attention.

Sufficiency of Reporting Accident to Police in UM Case Reviewed

Below is a link to an Opinion and Order issued earlier this year in a case involving the issue of the required reporting of an accident to the police in an uninsured motorist cases allegedly involving phantom vehicle. 

In the case of Marandure v. Erie Ins. Exch., 57 Northampton Co. Rpt. 914(C.P. Northampton Co. 2013 Roscioli, J.), the injured party Plaintiff filed a breach of contract/bad faith claim against her carrier after her claim for uninsured (UM) benefits was denied by the carrier on the basis that proper and timely notice to the police about the accident in accordance with the mandates of 75 Pa.C.S.A. Section 1702.

The underlying accident allegedly involved the Plaintiff's vehicle being sideswiped by a tractor-trailer in a hit-and-run accident.

Judge Paula A. Roscioli of the Northampton County Court of Common Pleas denied the carrier's Motion for Summary Judgment where the plaintiff testified that she called the local police through 911 from the accident scene and told the police that she had been sideswiped by an unidentified tractor-trailer.  The plaintiff contended that she also later reported the accident to the state police via a PennDOT Driver's Accident Report form. 

Significantly, after reviewing established case law precedent and the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), and in particular, Section 1702, the trial court found that merely submitting the PennDOT form is not sufficient to comply with Section 1702.

However, the trial court went on to find that the plaintiff's deposition testimony alone raised issues of fact which served to defeat the insurer's motion. 

 

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

 

Anyone wishing to review the Marandure Opinion may click this LINK.

Benevolent Gesture Legislation for Medical Malpractice Cases Advances to Governor's Desk

SB 379, pertaining, in pertinent part, to benevolent gestures in the context medical malpractice cases, has passed both the Pennsylvania House and Senate and will be on the Governor's desk for signature next.  It is expected by commentators that the Governor will sign it into law.

 

The Benevolent Gesture Medical Professional Liability Act provides that certain benevolent gestures shall be inadmissible at trial as evidence of liability.  However, this preclusion of evidence would not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or an event.

 

To view the proposed Legislation, click this LINK.

 

 

I sent thanks to Tim Bittle, a political consultant for the Pennsylvania Defense Institute for publicizing this information.

Reassignment of Luzerne County Judges Announced (Effective January 1, 2014)

Luzerne County Courthouse
Wilkes-Barre, PA
 

According to an October 21, 2013 Scranton Times Tribune article by Bob Kalinowski entitled "Luzerne County Judges Getting New Assignments," the Luzerne County Court of Common Pleas announced a planned reassignment of judges to be effective come January 1, 2014 for the civil, criminal, juvenile, and family courts. 

Here is a LINK to the article.

To the extent, that you may not be able to access the article online (because you have to pay to view, or otherwise), I note that the article reports that Judge Lesa Gelb and Judge Richard Hughes will now focus on civil matters rather than civil and criminal matters as they have in the past.  President Judge Thomas F. Burke, Jr. will also continue to handle civil matters.

Judge William H. Amesbury has been appointed as administrator of the juvenile court but will also continue to handle civil matters.

Judge Michael T. Vough will continue to handle criminal and civil matters.

No other judges were identified as being assigned to take part in civil matters after January 1, 2014.

ARTICLE: The Parameters of Independent Psychological and Vocational Exams

The below article of mine was recently published in the October 15, 2013 Pennsylvania Law Weekly and is republished here with the permission of American Law Media.  All rights reserved.

The Parameters of Independent Psychological and Vocational Exams

Pennsylvania Law Weekly

October 15, 2013

By

Daniel E. Cummins

Daniel E. Cummins

 

 

 

 

 

 

A recent recurring issue in Pennsylvania civil litigation matters has involved the parameters of an independent neuropsychological or psychological examination with respect to vocational testing arranged by the defense of an injured plaintiff.

As noted below, in the absence of any appellate guidance on this issue, the trial courts of Pennsylvania have struggled to craft appropriate remedies when disagreements in this regard arise between the litigating parties. The differing remedies allowed by the courts leave the issue in a somewhat erratic state in need of a sedative to calm the dispute.

Applicable Pennsylvania Rules

Under Pennsylvania Rule of Civil Procedure 4010(a)(2), "when the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party's custody or legal control."

Rule 4010(a)(4)(i) expressly provides that "the person to be examined shall have the right to have counsel or other representative present during the examination." Also under Rule 4010(a)(5)(i), an audio recording of the examination is allowed. There is no provision for any video recording of any examinations in the rule.

Under Rule 4010.1, pertaining to "Evaluation of Earning Capacity" by vocational experts, it is provided, under Subsection (b) that "the evaluation shall be subject to the provisions of Rule 4010(a)(3) through (b)(3) inclusive." In other words, the above-quoted rules also apply to interviews and testing that may be requested by vocational experts in their assessment of a plaintiff.

Trial Courts Differ

In an older Pennsylvania trial court opinion, former Luzerne County Court of Common Pleas Judge Michael T. Conahan (ahem) issued an order without any opinion in the case of Monahan v. Manitowoc, No. 465 - Civil - 2005 (C.P. Luz. Co. 2007), addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological independent medical exam arranged by the defense.

The order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, Pa., office of the expert by the plaintiff's own means or by means paid for by the defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, either by the plaintiff's own means or by means paid for by the defense.

More recently, Pennsylvania's discovery guru, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr., held in the case of Rotunda v. Petruska, No. GD08-018798 (C.P. Alleg. Co. 2010, Wettick, J.), that a neuropsychological IME could not be performed in the absence of plaintiffs counsel if an objection to that was lodged by the plaintiff.

Defense counsel had objected that the presence of another person at the psychological testing could alter the results and influence the test scores.

Wettick held that the wording of Rule 4010 "is clear" in allowing a party the right to have counsel or a representative present during the examination. Wettick also allowed the plaintiff to audio-record the proceeding, as allowed by the rules.

Earlier this year, in the case of Marion v. Lukaitis, No. 11-CV-7451 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), Lackawanna County Court of Common Pleas Judge Carmen D. Minora 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.

In taking the middle-of-the-road approach, Minora relied upon Rule 4010, cited Wettick's opinion in Rotunda, and stated that, "although 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."

The defense in Marion also pointed to Rule 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, 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 additionally held that audio or video recording of the standardized testing portion of the examination would be prohibited as well.

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, Coates allowed for wider parameters for the defense-arranged examinations of the plaintiff than that allowed by Minora in the Lackawanna County case.

By order only, 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.

Coates also ruled that the "plaintiff, at her expense, shall be permitted to audio-record the entire IME, including the objective testing portion." The prevailing plaintiffs attorney in this matter, Robert F. Claraval of Harrisburg, Pa.-based Claraval & Claraval, advised that this portion of the order applied to all of the exams set up by the defense.

The court in Sanderson 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. Plaintiffs 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, Coates additionally 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 experts obtained the same information.

As can be seen from the above, different state trial court judges have crafted different remedies in the absence of any appellate guidance to date.

The Issue in Federal Court

Over in the federal courts, Federal Rule of Civil Procedure 35(a)(1) provides that "the court where the action is pending may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner."

Unlike its state rule counterpart, there is no express provision in the federal rule allowing a third-party representative to attend an examination with the plaintiff.

In the U.S. District Court for the Middle District of Pennsylvania case Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie (now a member of the U.S. Court of Appeals for the Third Circuit) issued an order without any opinion holding that the plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation.

The defense brief in that case relied upon Federal Rule 35 and argued that a majority of federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere, as in Shirsat v. Mutual Pharmaceutical, 169 F.R.D. 68 (E.D.Pa. 1996), and Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981). In Showell v. Trump Taj Mahal Casino, No. CIV. A. 98-2141 (E.D.Pa. 2000), plaintiffs counsel was allowed to attend independent psychiatric examination, but only if he did not interrupt and sat silently behind his client.

As noted, Vanaskie chose to follow what the defense termed was the majority rule in the federal courts by precluding the attorney or any representative from attending the independent psychological examination with the plaintiff.

In the more recent Middle District case M.S. v. Cedar Bridge Military Academy, No. 1:08-CV-2271, PICS Case No. 11-0912 (M.D.Pa. May 13, 2011 Carlson, M.J.), Chief Magistrate Judge Martin C. Carlson also ruled that under Federal Rule 35, the plaintiffs attorney is not permitted to be present at a psychiatric examination of a minor party in a negligence action filed by parents on behalf of a minor plaintiff.

Need for Guidance

Until a remedy is provided by way of appellate guidance, it appears that litigants and the trial courts of Pennsylvania will have to continue to struggle in an unsettled fashion over the proper parameters for these types of examinations.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

Copy of Campbell v. Safeco Decision Secured (Standard of Review of Appeal from Private UM Arbitration)

Monroe County Judge Williamson's Opinion in the case of Campbell v. Safeco on the issue of the standard of review from a privately agreed upon arbitration of an uninsured (UM) motorist claim was recently summarized here.

Judge Williamson held that, in the absence of a formal arbitration agreement, the case should be considered as if the parties submitted the matter to common law arbitration under 42 Pa. C.S.A. §7341.  Under that statute, an arbitrator’s decision could only be set aside if there was “clear, precise, and convincing evidence" that the parties were denied a hearing or that there was fraud, misconduct, corruption, or some other irregularity which caused the rendering of an unjust, inequitable award.  

Attorney Gerard J. Geiger of the Stroudsburg, PA law firm of Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri was kind enough to send me a copy of the Campbell v. Safeco decision and I thank him for that.  Anyone wishing to review the decision may click this LINK.

Commentary: Given how UIM and UM issues are typically handled in a similar fashion by the courts, one can anticipate a similar result in the context of an attempt to appeal from a privately agreed upon UIM arbitration as well.

LACKAWANNA PRO BONO'S 5th ANNUAL FUNDRAISING GALA SET FOR NEXT THURSDAY OCTOBER 24th

Lackawanna Pro Bono's

5^th Annual Fundraising Gala

Honoring

 

Michael and Nada Gilmartin

Attorney Andrew J. Hailstone

Monsignor Joseph P. Kelly

 

THURSDAY, OCTOBER 24, 2013

6:30PM to 8:30PM – Scranton 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 lpbinc@juno.com.

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.

Pennsylvania Supreme Court to Address Important Issue on Implied Warranty Claims in Construction Defect Cases

The Pennsylvania Supreme Court has granted allocator in the case of Conway v. Cutler, No. 954 MAL 2012 (Pa. Oct. 15, 2013), to address an issue regarding implied warranty claims and remote/subsequent purchasers of newly constructed residential homes. 

According to Attorney Joe Walsh of the Lansdale, Pennsylvania law firm of Walsh Pancio LLP, an attorney who defends a number of construction defect claims (including cases involving water intrusion issues in home with stucco cladding), this case has great potential ramifications for the building industry and insurers who are still providing defenses under reservation of rights.  Attorney Walsh notes that these implied warranty claims are generally at the center of the homeowners’ complaints together with other contract, tort, and UTP claims.

Anyone wishing to review the Pennsylvania Supreme Court Order granting allocator, may click this LINK.

Update on Products Liability Restatement (Second) vs. (Third) Dispute

According to an October 15, 2013 article by Max Mitchell of The Legal Intelligencer (what a great name for a reporter), the Pennsylvania Supreme Court heard argument in the case of Tincher v. Omega Flex on October 15th. The central issue presented in this case is whether the "strict liability analysis of Section 402A of the Second Restatement should be replaced by the Restatement (Third) of Torts analysis, and whether the Court's holding should be applied prospectively or retroactively."

It should be interesting to see how this one plays out.  For more information on this issue, 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.

Click HERE to review the Tort Talk "Products Liability Restatement Scorecard," which outlines a number of recent cases on the debate over whether the Restatement (Second) or (Third) should be utilized in Pennsylvania strict liability matters.  Note that that page can always be viewed by going to Tort Talk and scrolling down the right hand column and clicking on "Products Liability Restatement Scorecard."

Judge Williamson of Monroe County Rules on Applicable Standard of Review of Award From UM Arbitration

In the Monroe County Court of Common Pleas case of Campbell v. SafeCo Ins. Co. of Ill., PICS Case No. 13-2525 (C.P. Monroe Co. July 10, 2013 Williamson, J.) Judge David J. Williamson denied a Plaintiff’s Petition to Set Aside an Arbitration Award in a motor vehicle accident case.  

This matter arose out of a claim for uninsured (UM) motorist benefits after the Plaintiff was allegedly injured when an unknown driver struck the Plaintiff while the Plaintiff was walking through a parking lot.  

The Plaintiff and the UM carrier agreed to refer to the matter to an attorney for a private arbitration.  No formal arbitration agreement was ever executed between the parties.

After the arbitrator granted the Defendant UM carrier's motion to dismiss, the Plaintiff filed a Petition to Vacate the Arbitrator’s Decision as contrary to law.  

Judge David J. Williamson

Judge Williamson concluded that, in the absence of a formal arbitration agreement, the case should be considered as if the parties submitted the matter to common law arbitration under 42 Pa. C.S.A. §7341.  

The court noted that, under that statute, an arbitrator’s decision could only be set aside if there was “clear, precise, and convincing evidence" that the parties were denied a hearing or that there was fraud, misconduct, corruption, or some other irregularity which caused the rendering of an unjust, inequitable award.  

As the Plaintiff made no allegations consistent with the wording of the statute, the court denied the Plaintiff’s Petition and confirmed the arbitration award.  

In its ruling, the court rejected the Plaintiff’s reliance upon Tannembaum v. Nationwide Ins. Co., 919 A.2d 267 (Pa. Super. 2007) in support of an argument that the court could set aside the arbitrator’s award based upon an error of law or abuse of discretion.   Judge Williamson noted that the Tannembaum case was distinguishable in that the ruling in that case only applied to arbitration awards arising out of contracts specifically calling for arbitration under the Pennsylvania Arbitration Act. 

Given the number of Post-Koken cases proceeding to private arbitrations by agreement of the parties, this decision may come in handy in determining the applicable standard of review on any motion to confirm, vacate, or modify the arbitrator's award in the absence of any agreement between the parties in that regard.

Attorney Gerard J. Geiger of the Stroudsburg, PA law firm of Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri was kind enough to send me a copy of the Campbell v. Safeco decision and I thank him for that.  Anyone wishing to review the decision may click this LINK.
Source:  Pennsylvania Law Weekly “Digest of Recent Opinions (October 1, 2013).  

Need CLE Credits Before End of Year? UPCOMING PDI CLE SEMINARS

Do you need CLE credits before the end of the year?

Below is a general listing of upcoming CLE seminars open to all being sponsored in whole or in part by the Pennsylvania Defense Institute across the Commonwealth of Pennsylvania.

The PDI will hold a CLE seminar in Philadelphia on November 11, 2013 at the DoubleTree Hotel from 10:30 am to 1:30 pm.

The NEPATLA and the PDI have announced a CLE program and Holiday Happy Hour set to take place on November 13, 2013 at the Mohegan Sun Casino at Pocono Downs in Wilkes-Barre. 

The PDI's final program is in Pittsburgh on December 5, 2013 with more details to follow.

 Contact David Cole, Executive Director of the PDI for more information on the cost to attend, the agenda, and to register:

P: 800-734-0737
E: coled01@padefense.org



Note:  For full disclosure purposes, I note that I am a member of both the PDI and the NEPATLA.  Also, neither I nor Tort Talk are in any way involved with these events.  Rather, I have simply posted this information in response to a request from the PDI to advertise the events here on Tort Talk.  In exchange for the advertisements, I have requested a waiver of the attendance fee(s) that would be assessed to me should I attend any of these events. 

First On Point Post-Koken Appellate Decision Handed Down by Superior Court Answers Some Questions, Leaves Others Open

The Pennsylvania Superior Court has finally had a chance to weigh in on a Post-Koken issue of importance--whether or not it is a denial of due process to a Plaintiff in a Post-Koken case not to identify the UIM carrier as a Defendant to the jury.

In the Superior Court's decision yesterday in the case of Stepanovich v. McGraw and State Farm, No. 1239 WDA 2013, No. 1296 WDA 2012 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), the court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant.

This Post-Koken third party/UIM matter proceeded to a jury trial in Allegheny County identified to the jury as "Stepanovich v. McGraw" and without reference to State Farm as a UIM carrier Defendant even though a defense counsel for the third party tortfeasor and a defense counsel for the Defendant UIM carrier, i.e., two defense attorneys, were allowed to participate in all aspects of the trial from Voir Dire to Closing Arguments.

The trial court noted that both defense attorneys could participate so long as there was no duplication in the questioning of the witnesses.  All parties were precluded from mentioning insurance during the course of the trial.

This matter involved a Plaintiff-pedestrian who was struck by the tortfeasor's Defendant's vehicle while cross at an intersection.  The Plaintiff contended that the tortfeasor Defendant was speeding and ran a red light thereby caused the accident.  The defense contended that the Plaintiff attempted to walk across the intersection against the light and outside of the crosswalk area and thereby caused the accident.

The jury returned a 10-2 defense verdict in favor of the tortfeasor Defendant, McGraw, after a finding that the tortfeasor was not negligent.  The verdict was molded to reflect a verdict in State Farm's favor as well as the UIM carrier.

At the Post-Trial Motions stage, the trial court judge, Judge Timothy P. O'Reilly, found that his own handling of the trial in this regard resulted in a Due Process violation to the Plaintiff in light of the failure to identify State Farm as a party Defendant in the matter.

For prior Tort Talk blog posts on this case at the trial court level and to view the trial court's Rule 1925 Opinion explaining its rationale, click HERE and HERE.

As noted, on appeal the Superior Court reversed the trial court decision allowing for a new trial and remanded the case with the direction that judgment be entered in favor of all Defendants.

The Stepanovich court noted that references to Pa.R.E. 411's prohibition against the mentioning of insurance at trial in this case was misplaced as that Rule specifically refers to the preclusion of any mentioning of the availability liability insurance, and does not reference UIM insurance as was at issue in this case.  As such, the court noted that a course of action identifying State Farm as the UIM carrier would not "run afoul" of Pa.R.E. 411.

The Superior Court went on to note that, even accepting for purposes of argument that the Plaintiff was entitled to inform the jury of State Farm's participation in the trial, the Plaintiff was still not entitled to the relief requested of a new trial as neither the Plaintiff nor the trial court provided any legal support for the finding of a due process violation in this regard was per se prejudicial.  Op. at p. 8.

The court found that the was no showing of prejudice as required by Pennsylvania law before a due process violation could be found and relief granted.  Accordingly, it was held that the failure to identify State Farm as a Defendant at trial, in and of itself, was not reversible error that would require the granting of a new trial.  Op. at p. 8-9.

Rather, in order to prove prejudice, the Plaintiff would have to show that "but for the jury's ignorance of State Farm's identity, it would have found McGraw negligent." Op. at p. 9.  The Superior Court in Stepanovich found that neither the Plaintiff nor the trial court established a legal or logical connection between the two.  Op. at p. 9.  Stated otherwise, the mere possibility that the Plaintiff could secure UIM benefits from his own carrier did not dictate a finding that the tortfeasor Defendant was liable.  Id.  Therefore, the Superior Court concluded, the jury's verdict that the tortfeasor Defendant was not negligent cannot be said to have been dependent upon or connected to the identity of the UIM carrier.

Interestingly, in footnote 5, the Superior Court noted that the State Farm policy required any UIM claims against it be tried in the same trial as the trial against the third party tortfeasor.  The Superior Court noted that it "[t]herefore,..assume[d] that State Farm, and other insurers who have a similar provision, have considered how to proceed in this circumstance without causing prejudice to the alleged third party tortfeasor."  Op. at p. 8.

In her concurring and dissenting Opinion, President Judge Emeritus Kate Ford Elliott joined in the majority's reasoning that Pa.R.E. 411's prohibition against the mentioning of liability insurance was inapplicable in this UIM context.

President Judge Ford Elliott however dissented from the ultimate ruling and felt that the trial court's decision to grant the Plaintiff a new trial should have been affirmed.  President Judge Ford Elliott reasoned that it was the trial court judge who was the one who sat through the trial and who had determined that the "double-teaming" of the Plaintiff by the defense counsel was prejudicial and that, on a re-trial, he would structure the trial differently.  President Judge Ford Elliott felt that this exercise of discretion by the trial court judge should not be disturbed and that his decision to allow for a new trial should have, therefore, been affirmed.

Anyone wishing to review the majority Opinion in the Stepanovich case may click this LINK.  President Judge Emeritus Ford Elliott's Concurring and Dissenting Opinion can be viewed HERE.

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


Commentary:  At least two things can be gleaned from a reading of the Pennsylvania Superior Court's decision in the Stepanovich case.  First, Pa.R.E. 411, which precludes the referencing of liability insurance at trial, cannot be relied upon to support an argument that references to UIM insurance should be precluded. 

Secondly, the Stepanovich decision stands for the proposition that the failure to identify a UIM carrier as a Defendant at trial is not, in and of itself, prejudicial or reversible error that would require the granting of a new trial.

As to the first issue finding that Pa.R.E. 411 does not serve to preclude the mentioning of a UIM carrier at a Post-Koken trial, it is noted that there is caselaw (i.e. common law), however, that can be referenced in support of an ongoing and viable argument for the continuing preclusion of the mentioning of other forms of insurance at such trials as being prejudicial to the defendant as distracting the jury from the central issues of liability and damages.  See Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995); see also Price v. Guy, 735 A.2d 668, 671-72 (Pa. 1999); DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994); Bonavitacola v. Cluver, 619 A.2d 1363, 1370 (Pa.Super. 1993);  Greenwood v. Hildebrand, 515 A.2d 963, 968 (Pa.Super. 1986).  

Such evidence of insurance issues may also arguably be precluded under the more general argument that any alleged probative value of such evidence is outweighed by the danger of prejudice. See Nigra v. Walsh, 797 A.2d 353, 360 (Pa. Super. 2002) citing Pa.R.C.P. 403.

For a decision at the opposite end of the spectrum entirely disagreeing with the above commentary and finding that essentially any and all insurance information should be allowed in a Post-Koken case so as to have a jury fully informed on all of the issues presented, see Federal Middle District Court Judge James M. Munley's decision in the case of Noone v. Progressive Direct Ins. Co., No. 3:12CV1675 (M.D.Pa. May 28, 2013 Munley, J.).  To view the Tort Talk post on that case along with a link to that decision, click HERE.  

Seemingly, while the Stepanovich  decision appears to answer some questions, it still unfortunately leaves open, and provides little, if any, concrete guidance on the main question of how Post-Koken trials should be handled in terms of whether or not to identify the presence of the insurance company defendant to the jury.

It remains to be seen if the Stepanovich case will proceed forward in the appellate process.

 

Court Rules Defendant May Cross-Examine on Fact That Plaintiff's Attorney Referred Plaintiff to Doctor

In the Philadelphia County Court of Common Pleas case of Fullam v. Miller Bros., Inc., PICS Case No. 13-2410 (C.P. Phila. Co. July 22, 2013 Smith, J.), Judge Gregory E. Smith, addressed a number of evidentiary rulings and other issues on Post-Trial Motions in a trip and fall case.  

This matter involved a Plaintiff suing the Defendant for injuries she allegedly sustained when she fell into a partially covered hole at a construction site located at 34^th and Market Streets in Philadelphia.  

The jury entered a defense verdict based upon a finding of Plaintiff’s contributory negligence of 85%.   The Plaintiff filed Post-Trial Motions which were denied and then the Plaintiff appealed.  

The trial court issued a Pa. R.A.P. 1925(b) Opinion responding to the Plaintiff’s issues raised on appeal.   Of note among the issues raised was an argument that the trial court erroneously declined to preclude evidence that the Plaintiff’s attorney gave the Plaintiff a list of treating physicians from which to choose for treatment purposes.  

According to the summary of the Opinion, the Plaintiff first treated after the subject accident with one physician.  A year later, when the Plaintiff was allegedly still experiencing pain, she went to a doctor recommended by her attorney.  

In its Opinion, the court noted that the scope of the Defendant’s cross-examination of the Plaintiff’s expert doctor to show bias or interest based upon the doctor’s relationship with Plaintiff’s counsel was admissible under the Pennsylvania Rules of Evidence.

Anyone wishing to review a copy of this decision may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee for a copy.  

Source:  Pennsylvania Law Weekly “Digest of Recent Opinions (October 1, 2013). 

Crawford County Court Addresses Priority of UIM Coverages

In the Crawford County Court of Common Pleas case of State Farm Mut. Auto. Ins. Co. v. Donegal Mut. Ins. Co., XXX Crawford Co. L. J. 52 (2013 Vardaro, P.J.), President Judge Anthony J. Vardaro recently issued an Opinion deciding a dispute between insurers regarding their respective pro rata share obligations for an underinsured (UIM) motorists benefits payment.

In the State Farm v. Donegal case, the injured victim/insured resided with her parents and was operating their vehicle with their permission when she was struck by the tortfeasor defendant driver.

According to the Opinion, there were two vehicles on parents' State Farm policy under which there was $25,000 in stacked UIM coverage.

The injured victim also had her own policy with Donegal that had $100,000 in UIM coverage, but no stacking,

After obtaining the tortfeasor's liability limits, the UIM claims made against State Farm and Donegal settled for 90,000 of which State Farm paid 50,000 and Donegal paid 40,000.

State Farm then sought a pro rata contribution from Donegal by arguing that the second vehicle on the parents' State Farm policy should be considered "secondary" and therefore of equal priority with the  Donegal policy.

After review the policy language and applicable law, the court rejected State Farm's argument.  After  citing to 75 Pa.C.S.A. Section 173, other case law, and the Pennsylvania Association for Justice's Pennsylvania Motor Vehicle Insurance book by James. R. Ronca, Esq., et al., the court held that both vehicles under State Farm's policy are to be considered first priority and the Donegal policy is solely second priority.  As such, the court rejected State Farm's pro rata request and granted defendant Donegal's motion for summary judgment.

Anyone wishing to review this Crawford County Court of Common Pleas decision in the case of State Farm v. Donegal may click this LINK.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

Federal Middle District Judge Mannion Allows Punitive Damages Claim to Proceed in Trucking Accident Case

Federal Middle District Court Judge Malachy E. Mannion recently allowed a punitive damages claim to survive a Fed.R.C.P. 12(b)(6) Motion to Dismiss in a trucking accident litigation with allegations of sleep deprivation in the case of Coello v. Frac Tech Services, LLC, No. 3:13-534 (M.D. Pa. Oct. 10, 2013 Mannion, J.).

According to the Plaintiff's Complaint, after working extended hours and getting minimal sleep, the Defendant truck driver allegedly fell asleep at the wheel on the rural country road of SR 267 in northern central Pennsylvania, crossed the center line and struck the Plaintiff's decedent's oncoming vehicle in a head-on fashion.

Judge Malachy E. Mannion

After setting forth the Fed.R.C.P. 12(b)(6) standard of review and providing a detailed analysis of the current prerequisites for a valid claim for punitive damages under Pennsylvania law, the Court denied the Defendant's motion to dismiss the punitive damages claim. 

Judge Mannion noted that there were sufficient facts pled in the Plaintiff's Complaint to support the punitive damages claim, including allegations regarding the Defendants' alleged knowledge of the dangers of driving with sleep deprivation allegedly caused by an intense work schedule.

Anyone wishing to review the Coello decision by Judge Mannion, may click this LINK.

SAVE THE DATE: November 13th -- NEPATLA/PDI CLE and HOLIDAY HAPPY HOUR

The NEPATLA and the PDI have announced a CLE program and Holiday Happy Hour set for November 13th at the Mohegan Sun Casino at Pocono Downs in Wilkes-Barre. The program will feature recently-appointed Pennsylvania Supreme Court Justice Correale Stevens, Pennsylvania Attorney General Kathleen Kane, and local Judges Richard Caputo, Thomas Burke, Jr., and Robert Mazzoni. Two substantive and one ethics credits are offered. The CLE program is followed by a Holiday Happy Hour at Breakers. The cost of attending the Happy Hour is included in the price of registration ($175 for attorneys; free for non-attorneys).

Contact David Cole, Executive Director of the PDI for more information and to register:
P: 800-734-0737
E: coled01@padefense.org


Note:  Neither I nor Tort Talk are involved with this event.  I have posted this information in response to a request to advertise the event here on Tort Talk.

Judge Nealon of Lackawanna County Weighs Right-To-Know Law Against Arbitration Clause in Contract Dispute

In his recent September 17, 2013 Opinion in the case of Mid Valley School District v. Warshawer, No. 13-CV-1528 (C.P. Lacka. Co. Sept. 17, 2013 Nealon, J.), Judge Terrence R. Nealon issued a Right-To-Know decision involving a contract dispute and arbitration language.

The school district in this case objected to the Right-To-Know Law (RTKL) requests that had been submitted by the attorney for a contractor that was involved in a payment dispute with the school district.

The school district argued that the parties' contract called for binding arbitration of all claims and barred any document discovery except to the extent that the arbitrator ordered the parties to produce specific documents. The district contended that the RTKL requests sought pre-arbitration discovery that was prohibited by their arbitration agreement, and maintained that the contractor could not circumvent that contractual discovery restriction by obtaining documents via a RTKL request.

Concisely, Judge Nealon held that the RTKL superseded any discovery limitation contained in the arbitration agreement, even if it resulted in extra-contractual, pre-arbitration discovery for the contractor.

Arguably, this ruling could impact any arbitrations involving a governmental defendant whose insurance policy contains arbitration provisions with discovery limitations .

Anyone wishing to review Judge Nealon's Opinion in the Mid Valley School District v. Warshawer case may click this LINK.

Luzerne County President Judge Burke Grants Protective Order Against Deposition of UIM Claims Rep in Two Post-Koken Cases

On October 4, 2013, President Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued an Order in the case of Garrett v. Griffin and Erie Ins. Exchange, No. 17274 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.) granting the Motion of Erie Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.  The prevailing defense attorney in that case was Rick Polachek of the Wilkes-Barre law firm of Polachek & Clark.

On the same date, President Judge Burke, Jr. issued an Order in the separate Luzerne County case of Krznefski v. Bish and State Farm, No. 16643 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.) granting the Motion of State Farm Mutual Automobile Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.  The prevailing defense attorney in that case was Lee Ullman of the Reading office of the Forry Ullman law firm.

Anyone wishing to secure a copy of these Orders may contact me at dancummins@comcast.net.

Chester County Court of Common Pleas Addresses Admissibility of Medical Bills

As evidenced in the recent Chester County Court of Common Pleas decision in the case of Hall v. Rite Aid, 61 Chester Co. L. R. 306 (2013 Tunnel, J.), civil litigators across the Commonwealth of Pennsylvania continue to struggle with the issue of the admissibility of a plaintiff's medical expenses at trial.

In his detailed Order in Hall, Chester County Judge Mark L. Tunnel denied a defendant's motion in limine to limit the admission of plaintiff's medical bills

The court permitted the plaintiff to introduce medical bills that have not been accepted [as paid in full] by her healthcare providers.  The court additionally held that, in terms of the plaintiff's unpaid and future medical bills, the fair market value for such services would be applied as the appropriate measure of damages.

Anyone wishing to review Judge Tunnel's detailed Order in the case of Hall v. Rite Aid may click this LINK.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

Source of image: www.robertpeterslaw.com.