Wednesday, July 30, 2014

Vehicles Traveling in Same Direction Are Not Static Objects Under Sudden Emergency Doctrine

In its recent decision in the case of Drew v. Work, 2014 Pa.Super. 137 (Pa. Super. June 30, 2014 Shogan, J., Olson, J., and Wecht,J.)(Op. by Olson, J.), the Pennsylvania Superior Court provided one of its latest decisions on the application of the sudden emergency doctrine in a motor vehicle accident case. 
In this case, the Plaintiff testified that the Defendant’s vehicle clipped the Plaintiff’s vehicle while the Plaintiff was passing.   The Defendant testified, instead, that the Plaintiff cut off the Defendant’s vehicle.  
At trial, the Plaintiff’s requested Points for Charge on negligence per se related to the Defendant’s alleged unsafe departure from his lane, as well as a request for instructions on the sudden emergency doctrine.  
The trial court rejected jury instructions on both charges after deeming the Defendant’s vehicle to be a “static object” since both vehicles were traveling in the same direction.  
The jury returned a defense verdict finding the Defendant 40% negligence and the Plaintiff  60% negligent.  
On appeal, the Plaintiff argued, in part, that the trial court erred in not providing any requested jury instructions on per se negligence and the sudden emergency doctrine. 
The Pennsylvania Superior Court rejected the trial court’s determination that the fact that both parties’ vehicles were traveling in the same direction meant that the Defendant’s vehicle was a “static object.”   The court found that such an analysis to be too rigid of an application of the “static object” and “clear distance ahead” rules.  
To the contrary, the Pennsylvania Superior Court stated that the Plaintiff was entitled to an instruction on the sudden emergency doctrine under the four part standard of that doctrine, i.e., (1) an individual suddenly and unexpectedly finds himself or herself confronted with a dangerous situation, (2) that permits no opportunity to assess the danger, (3) and that such a person is entitled to the application of the doctrine if he or she responds appropriately, and (4) where the person invoking the doctrine proves that he or she did not create the emergency.
The Superior Court noted that, in the case before it, the testimony supported the jury instruction as there was evidence that the Defendant unexpectedly presented the Plaintiff with a dangerous situation that the Plaintiff responded to appropriately, and where the Plaintiff did not create or contribute to the emergency.
The Superior Court also ruled that the trial court erred in not providing the jury instruction on the per se negligence rule given that there was evidence to support such a jury instruction.   

Anyone wishing to review this decision may click this LINK.

Source:  "Case Digests."  Pennsylvania Law Weekly (July 8, 2014).


Monday, July 28, 2014

Interesting Article on Dangers Facing Right to Fair and Impartial Jury in Pennsylvania (Article by Thomas J. Foley, III)

Here is a LINK to an article by Scranton, PA attorney Thomas J. Foley, III of the Foley Law Firm in which he offers an erudite analysis of the dangers faced by the constitutional right to a fair jury in Pennsylvania.

The article is entitled "Pennsylvanians' Constitutional Right to Juries Free of Any Suspicion of Partiality in Danger?" and was published in the latest edition of the Pennsylvania Bar Association Quarterly.

Friday, July 25, 2014

Philadelphia Bar Association Issues Advisory Opinion on Facebook Issues

The Professional Guidance Committee of the Philadelphia Bar Association recently issued guidelines on how lawyers may instruct their clients on the use of social media sites after the legal representation has begun.  Among the highlights were the following notes:

-"A lawyer may advise a client to change the privacy settings on the client's Facebook page, but may not instruct or knowingly allow a client to delete/destroy a relevant photo, link, text or other content."

-"Though an opposing party may not be able to gain unrestricted access to a client's information after the privacy settings are changed, the opposing party may still obtain the information through discovery or subpoena."

"A lawyer may not instruct a client to either alter, destroy, or conceal any relevant information regardless [of] whether that information is in paper or digital form."

-"A lawyer must obtain a copy of a photograph, link or other content posted by a client on the client's Facebook page in order to comply with a Request for Production or other discovery request."

Here is a LINK to the Pennsylvania Law Weekly article on the topic by P.J. D'Annunzio which serves as the source of this Tort Talk blog post.

Here is a LINK to the Ethics Opinion.  I send thanks to Attorney Thomas Wilkinson, Jr. of the Philadelphia office of Cozen & O'Connor for securing a copy for me.

Northeastern Pennsylvania Attorney Matt Keris Takes Over as President of Pennsylvania Defense Institute

Matthew P. Keris

In notable legal news out of Northeastern Pennsylvania, Attorney Matt Keris of the Moosic, Lackawanna County office of Marshall, Dennehey, Warner, Coleman & Goggin was recently installed as the President of the Pennsylvania Defense Institute at their recent Annual Meeting at the Bedford Springs Resort in Bedford Springs, PA. 

Congratulations to a great lawyer and a great person.  The PDI lucky to have him at the helm for the next year.

Thursday, July 24, 2014

DRINKS ALL AROUND: Centre Co. Trial Court Lets All Kinds of Alcohol Evidence In

Judge Thomas King Kistler of the Centre County Court of Common Pleas recently addressed pre-trial motions in limine pertaining to the admissibility of consumption of alcohol by both parties in a motor vehicle versus pedestrian accident in the case of Losch v. Bittner and GEICO, No. 2011 – Civil – 5746 and 5747 (C.P. Centre Co. May 30, 2014 Kistler, J.).

According to the opinions, the consolidated cases involved a pedestrian who was struck while standing or lying on a highway at 1 a.m. in the morning.  Although the pedestrian claimed he ended up on the highway due to first being struck by a phantom vehicle that fled the scene (giving rise to a UM claim against GEICO), followed by the pedestrian then being run over by the tortfeasor defendant’s vehicle, there was evidence gathered in discovery that the Plaintiff had been drinking alcohol during the evening leading up to the accident.
There was also evidence gathered during discovery in this matter that the tortfeasor defendant driver had also been separately drinking during the evening in question.  The tortfeasor hit the pedestrian and continued on to his nearby home. 

The next day, the driver called 911 and reported seeing body on the roadway but did not mention that he had hit the pedestrian.  During the subsequent investigation by the police, the tortfeasor defendant admitted that he had indeed hit the pedestrian.
GEICO prevailed on its motion in limine seeking permission to offer evidence at trial on the pedestrian’s alleged intoxication so as to support GEICO’s argument of contributory negligence on the part of the pedestrian plaintiff.  Judge Kistler’s opinion on that motion in limine provides a thorough review of the case law on the analysis of whether such evidence should be admitted, or excluded as prejudicial.  Here the evidence of intoxication (slurred speech, odor of alcohol, BAC in excess of legal limit) was found admissible.
Judge Kistler also granted the pedestrian plaintiff’s motion in limine to offer into evidence admissions by the defendant driver that he had a few beers to drink during the evening leading up to the accident even though there was no other substantial evidence presented that the driver was intoxicated at the time of the accident. 
However, Judge Kistler, who condemned the driver for leaving the scene and not immediately advising the 911 operator that he had hit the pedestrian, took a novel approach by finding that it was within his broad discretion to find that the defendant driver’s drinking earlier that evening was admissible (even without evidence of intoxication) because the driver had left the scene and basically destroyed the evidence by not reporting the accident until the next day and by not submitting to police scrutiny at the time of the accident.
The court noted that it had the discretion to infer that the driver's fleeing of the scene evidenced the driver's consciousness of guilt or an attempt to conceal his inebriation.
It was otherwise reported that, with all of this intoxication evidence being allowed in, the case was settled prior to trial. (Perhaps this was a motivating factor in the judge allowing all of the evidence in and thereby putting pressure on all of the parties involved.).
Anyone wishing to review the Losch decision pertaining to the admission of intoxication evidence against a plaintiff on a contributory negligence theory, click HERE.
Judge Kistler's decision allowing the admissibility of evidence that a defendant driver who fled the scene was drinking alcohol in the evening leading up to the accident may be viewed at this LINK.
I send thanks to Attorney Gary Weber of the Williamsport law firm of Mitchell Gallagher  for bringing these decisions to my attention.

Tuesday, July 22, 2014

A Split of Authority Develops on Admissibility of Bad Faith Expert Testimony

In his recent decision in the case of Monaghan v. Travelers, No. 3:12CV1285 (M.D.Pa. July 16, 2014 Munley, J.), Judge James Munley bucked the recent trend of Pennsylvania court decisions holding that expert testimony is unnecessary in insurance bad faith cases by ruling that, under F.R.E. 702, each bad faith case should be decided on its own merits in determining whether such expert testimony would be beneficial in assisting a jury of lay people in understanding the issues presented.

In denying the defense motion in limine to preclude the Plaintiff's bad faith expert, the court deferred its decision on whether the Plaintiff's proposed bad faith expert testimony impermissibly addresses the ultimate issues presented.  The court granted the defense the right to raise this objection at trial if necessary.

Anyone wishing to review this decision of Judge Munley in the Monaghan case may click HERE.

I send thanks to Attorneys Scott Cooper and Michale E. Kosik, both of the Harrisburg law firm of Schmidt Kramer, for bringing this case to my attention.

For decisions going the other way, click HERE to review a post on the Federal Western District of Pennsylvania case of Schifino v. GEICO case,  and HERE to go to the Federal Western District Court decision in the case of Smith v. Allstate.

Click HERE to read a post the prior Federal Middle District of Pennsylvania decision issued by Judge Malachy E. Mannion in Scott v. GEICO in which Judge Mannion ruled that bad faith testimony was not necessary in this context.

Release From Liability Form Upheld in Poconos Snow Tubing Case

In his recent decision in the case of Dunlap v. Davenport v. The Villas at Tree Tops and Fairway, PICS Case No. 14-0883 (Monroe Co. April 28, 2014 Williamson, J.), Judge David Williamson of the Monroe County Court of Common Pleas upheld a release from liability form containing an exculpatory clause signed by a Plaintiff relative to the Plaintiff's participation in snow tubing at the Fernwood Hotel and Resort in the Poconos.  

The court found that the release form was a proper contract between the parties and that the Plaintiff was free to go snow tubing elsewhere or simply not go at all.  

The court also rejected the Plaintiff’s contentions that the release form should be deemed to be unenforceable in that it had extremely small printing with all of the writing on a single page.  

The court additionally rejected the Plaintiff’s contention that there was no evidence that the Plaintiff had read and understood the release terms that protected the Defendant from liability arising out of the snow tubing activities.  

The court otherwise rejected an argument that the release form violated Pennsylvania public policy.  

Judge David Williamson
Monroe County
Overall, because the release form was found to be a valid contractual agreement between the parties, Judge Williamson granted the Defendant’s Motion for Judgment on the Pleadings on the personal injury claim.  

The court additionally dismissed the husband’s loss of consortium claim as that claim was derivative of, and dependent upon, the wife’s personal injury claim.  

I do not have a copy of this one.  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: "Case Digests," Pennsylvania Law Weekly (June 2014).

Monday, July 21, 2014

Lehigh County Trial Court Dismisses Punitive Damages Claim Based Solely on Cell Phone Use During Auto Accident

In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.

In the opinion, the court noted that there were allegations that the defendant driver was distracted by her cell phone use when she made a slow left hand turn across the Plaintiff's path of travel and an accident resulted.

The court reviewed several cases handed down to date on this issue and essentially ruled that the mere use of a cell phone while driving without more, does not amount to factual support sufficient to sustain an averment of recklessness and attendant punitive damages.  Rather, such allegations only support a claim of negligence.
Anyone wishing to review this cell phone decision out of Lehigh County may click this LINK.

I send thanks to John Hendrzak of the Center Valley, PA law firm of Hendrzak & Lloyd for bringing this notable decision to my attention.

Friday, July 18, 2014

Copy of Northampton County Limited Tort MSJ Case Secured (Ramos v. Jones)

I now have a copy of the Northampton County Court of Common Pleas limited tort summary judgment decision listed in yesterday's Tort Talk post.  Anyone wishing a copy may please contact me at

I send thanks to Attorney Jill Moffitt of the Bethlehem office of Forry Ullman for providing me with a copy.

Summary Judgment Entered for Defendant Based Upon Failure to Make Good Faith Effort to Serve Complaint

In his recent decision in the Jefferson County case of Pearce v. Jones, PICS Case No. 14-0928 (C.P. Jefferson Co. May 23, 2014 Foradora, J.), Judge John Foradora addressed the issue of the applicability of the statute of limitations barring an automobile negligence claim based upon a service on process issue.  

Essentially, the court ruled that the Plaintiff’s failure to make reasonable efforts to serve the Defendant until months after the statute of limitations had expired precluded the Plaintiff from pursuing the action and, as such, the Defendant’s Motion for Summary Judgment was granted.
By way of background, the Plaintiff filed a Complaint on May 28, 2013 alleging personal injuries as a result of a May 30, 2011 motor vehicle accident.   The Plaintiff did not submit a request for service at the time of the filing of the Complaint.  

The statute of limitations then expired on May 30, 2013.
Thereafter, on June 12, 2013, the Plaintiff’s counsel provided the Defendant’s liability carrier’s adjuster with a copy of the Complaint.  
Later, under a September 11, 2013 letter to the Prothonotary, Plaintiff’s counsel enclosed a Praecipe to Reinstate the Complaint, another copy of the Complaint, and a check for the Sheriff’s service fee.  
On September 27, 2013, the Prothonotary advised the attorney as to the correct amount of the fee.  Nearly six (6) weeks later, counsel forwarded a second Praecipe and the correct fee, both of which were delivered to the Sheriff for service.   Service was then unsuccessful. 
On January 24, 2014, Plaintiff’s counsel sent another Praecipe and service was completed upon the Defendant a few days later on January 27, 2014.  
The Defendant filed a summary judgment motion based upon the Plaintiff’s failure to promptly effectuate service.   After finding that the Plaintiff did not make any effort to notify the Defendant of the claim until well after the applicable statute of limitations had expired, the court granted the Motion.
In so ruling, Judge Foradora noted that a Plaintiff making a good faith effort to complete service does to wait nearly four (4) months after the filing to even try to have the Defendant served and then an additional six (6) weeks upon learning of the attorney’s noncompliance with the Prothonotary’s requirement to submit the necessary documents and payment to insure compliance with the service rules.  
The trial court further found that the liability carrier’s knowledge of the suit in June of 2013 did not excuse the Plaintiff’s lack of good faith effort to complete service.  

 I do not have a copy of this one.  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: "Case Digests," Pennsylvania Law Weekly (June, 2014).

Limited Tort Summary Judgment Granted in Northampton County

In his recent decision in the case of Ramos v. Jones, PICS Case No. 14-1051 (C.P. Northampton Co. June 18, 2014 Baratta, J.), Judge Stephen G. Baratta of the Northampton County Court of Common Pleas granted a Defendant’s Motion for Partial Summary Judgment in a limited tort case and dismissed the Plaintiff’s claims for non-economic damages.  

According to a summary of the Opinion, the Plaintiff alleged severe, serious and disabling injuries from the accident including sprains and strains of her neck and back as well as injuries to her disc, shoulders, head, and right knee.  She also alleged mental damages such as depression, fear, anxiety, and other emotional injuries.   The Plaintiff additionally asserted that she was unable to pursue her usual occupation as a result of her injuries.  

 In filing a Motion for Partial Summary Judgment, the Defendants asserted that the Plaintiff’s non-economic damages claims were barred by the Plaintiff’s limited tort selection.

 The court granted the Motion for Summary Judgment after indicating that the Plaintiff’s alleged injuries appeared to be soft tissue in nature.   The court also found that the Plaintiff failed to show that these injuries resulted in any substantial interference with any body functions so as to permit a conclusion by the Court that the injuries were serious.  

 The court also found that the Plaintiff failed to prevent objective medical evidence that any pain she experienced following the accident was a result of the accident.    The court noted that the record contained references to long-standing pre-existing neck pain.  

 In granting the Motion for Summary Judgment, the court also noted that the Plaintiff’s post-accident treatment was sporadic and not extensive.

 Given that the court found that no reasonable minds on a jury could differ that there was no serious impairment of a body function on the case presented, summary judgment on the pain and suffering claims was granted.  

Anyone desiring a copy of this decision may contact me at

Source:  "Case Digests" Pennsylvania Law Weekly (July 8, 2014).


Thursday, July 17, 2014


Here is a LINK to my recent article published in the Pennsylvania Lawyer Magazine entitled "Trial Tips 101" which reviews fundamental tips offered in order to try to help make your next trial a bit smoother in terms of preparation and presentation.  Hope you find it somewhat helpful, either as new information or a refresher. 

I send thanks to the editors of the Pennsylvania Lawyer Magazine, Don Sarvey and Geoff Yuda, for agreeing to publish the piece.

ABA Says Its Ethical To Research Jurors Through Social Media

The American Bar Association has issued a report indicating that it is ethical for lawyers to scour online for publicly available information regarding jurors.   However, the report does caution attorneys against actively “following” or “friending” jurors or otherwise attempting to invade the private internet areas of the potential jurors.   Among the online sites noted for such research purposes were Facebook, LinkedIn, and Twitter.  

Click HERE to Review the Formal Opinion entitled "Lawyer Reviewing Jurors' Internet Presence" by the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (April 24, 2014).

Tuesday, July 15, 2014

A New Civil Cause of Action is Born

The Governor of Pennsylvania recently signed into law HB 2107, effective 60 days from July 8, 2014, which not only creates a new criminal offense for the dissemination of nude or sexually explicit images of a current or former partner with the intent to harass, annoy, or alarm, but also provides for a new statutory private civil cause of action for the victim.

According to the bill, the damages recoverable are the greater of the actual damages sustained or $500.00, along with reasonable attorney's fees, court costs, and any additional relief the court deems necessary and proper.

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

Monday, July 14, 2014

More Commentary on Barrick v. Holy Spirit Discovery Rule Barring Discovery of Communications By Attorney to Expert

Here is a LINK an article from today's The Legal Intelligencer entitled "Pa. Adopts Rule Banning Attorney-Expert Discovery" by Gina Passarella who called for a comment on the issue.

The article provides more analysis on the amendments to Rule 4003.5 on the parameters of permissible expert discovery and confirming that there is a split amongst the members of the bar in favor of, and against, the new Rule.

Saturday, July 12, 2014

Please Consider Registering Now for the Tort Talk Expo 2014 Before Your Calendar Fills Up

September 26, 2014
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
(3 Substantive, 1 Ethics Credit)
12:00 pm - 1:00 pm 
"Back to School"
Daniel E.  Cummins, Esq.
1:00 pm - 2:00 pm 
Timothy G. Lenahan, Esq.
Scott B. Cooper, Esq.
Neil T. O'Donnell, Esq.

Moderator: Daniel E. Cummins, Esq.
 {BREAK: 2:00 pm - 2:15 pm}
  2:15 pm - 3:15 pm
Dr. Lucian Bednarz  - Physiatrist - on RSD
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
 {BREAK:  3:15 pm - 3:30 pm}
 3:30 pm - 4:30 pm
Ethical Considerations
Settlement Conferences
Jury Selection
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
Supreme Court Justice Correale F. Stevens 
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Court Judge Malachy E. Mannion
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 4:30 pm - 6 pm

At The Scene

Courtside Documents

Exhibit A

Medical Legal Reproductions

Network Deposition Services

Northeastern Rehabilitation Associates


Robson Forensic

The MCS Group

As in the past, there will again be door prizes and raffle prizes.
Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at for more details).
NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 
or mail check made out to "Tort Talk" and below form to:
Daniel E. Cummins
Foley, Comerford & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

NAME: ___________________________________________________

FIRM/COMPANY: _________________________________________

EMAIL: ___________________________________________________

In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
SEPTEMBER 26, 2014


Friday, July 11, 2014

Follow-Up to Post on New Barrick Rule of Civil Procedure - Not Effective Until August 9, 2014

In follow-up to yesterday's post on the amendment to the Pennsylvania Rule of Civil Procedure 4003.5 that incorporates the Barrick bright-line rule precluding discovery of communications between attorneys and their experts, it is noted that the Rule does not go into effect until August 9, 2014 as per the Supreme Court Order on the matter.  See HERE.

As such, the full search for the Truth of claims and defenses presented still has a few days left in Pennsylvania civil litigation matters.

Might be a good idea to postpone any trial depositions of experts you currently have scheduled to beyond August 9, 2014 so you can take full advantage of the Rule and prevent opposing counsel from reviewing any attorney communications to the expert that may be contained in the experts file.

ANOTHER SAD DAY FOR THE TRUTH: The Law of Barrick Has Been Added to Rule of Civil Procedure 4003.5

Rule 4003.5 has been amended to incorporate the law of Barrick v. Holy Spirit Hospital which protects from disclosure in discovery any forms of communications from lawyers to their experts.  Also protected are draft reports by experts.

The Rule, promulgated under Pa.R.C.P. 4003.5(a)(4), states that such communications and draft reports need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

The new Rule may be viewed HERE.


I believe I am in the minority camp of those who don't favor the Barrick result or, now, this official Rule of Civil Procedure pertaining to a prohibition against the discovery of communications between an attorney and a retained expert.  See my article "A Sad Day for the Truth" ( May 6, 2014) HERE.

Although the amendments to Rule 4003.5 leave the door slightly cracked open to secure the disclosure of communications between an attorney and their retained expert, the Rule does not clarify what circumstances would warrant disclosure of these communications or even how such circumstances could ever be discovered given that the communications between the attorney and expert are fully protected. 

For example, arguably an attorney in a litigation should be able to discover the fact that his or her opposing counsel has directed or told their expert what to write in their expert report.

Is it not a stretch to think that an attorney in this adversarial system driven by compensatory results, depending on which side the attorney is on, would write to their expert and say "Please make sure you state that the accident was/was not the cause of the Plaintiff's injuries" or, "Please make sure that you include in your report your opinion that the Plaintiff's alleged wage losses/medical expenses were/were not caused by the accident."

Shouldn't an opposing counsel be able to discover such communications in order to properly cross-examine the expert in front of a jury at trial to show that the expert's opinion was, at a minimum influenced, or at maximum, directed, by the opposing counsel? 

Isn't such information important for a jury to be made aware of through cross-examination (and then in Closing Argument) in order to weigh the merits of the conflicting expert opinions at a trial, many of which trials come down to who wins the proverbial "Battle of the Experts?"

As the answer to the above rhetorical questions is obviously a resounding "YES," then it is indeed a sad day for the Truth in Pennsylvania civil litigation matters as, in reality, such influencing or directing of an expert's opinion by an opposing counsel can never even be discovered unless it comes to light by some mistake.

Jumping down off my soapbox to point out a practical result of this new Rule, it is noted that attorneys should remember that, whenever an opposing counsel now requests to see the expert's file prior to commencing his or her cross-examination of the expert, the attorney offering the expert should first remove from that file any communications between the attorney and the expert, as well as any draft reports as they are not discoverable under this new rule.

I send thanks to Attorney Malcolm L. MacGregor of the Scranton, PA law firm of McDonald & MacGregor for bringing this Rule change to my attention.

Source of

ARTICLE: Automobile 'Black Box' Information Ruled Admissible in Criminal Case

Automobile 'Black Box' Information Ruled Admissible in Criminal Case By

Daniel E. Cummins, The Legal Intelligencer
July 1, 2014
Republished here with permission by American Law Media. 
Daniel E. Cummins, Esq.
Scranton, PA

Every so often in Pennsylvania jurisprudence, an appellate court criminal law decision comes along that could serve to have a substantial impact on the litigation of Pennsylvania personal injury matters.
For instance, in the case of Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), which is currently on appeal and pending before the Pennsylvania Supreme Court, the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pennsylvania Rule of Evidence 901. Obviously, that issue could have an impact on the admissibility of such evidence, or other forms of social media evidence, in civil litigation matters.

With the increasing inclusion of event data recorders, more commonly known as "black boxes," in automobiles, the time is coming when information gathered by such devices may serve to make or break an auto accident personal injury case.

According to studies, event data recorders in automobiles are capable of recording a wide variety of information, such as whether the brakes were applied, changes in velocity, speed at the time of an impact, whether the cruise control or headlights were on, whether turn signals were activated, the angle of the steering wheel at impact, and whether the seat belt circuits signaled "buckled" or "unbuckled."

Surely, the admission of such objective, scientific and presumably indisputable evidence in support of the crucial facts of any given accident could definitively resolve the many typical factual disputes that make up an automobile accident case.

Novel Auto Accident Evidence
In its recent nonprecedential memorandum decision in the criminal case of Commonwealth v. Safka, 1312 WDA 2012 (Pa.Super. June 2, 2014), the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's black box was admissible in a criminal court proceeding.

The Safka case arose out of charges of vehicular homicide and other moving violations. At trial, the defendant challenged the prosecution's admission of black-box evidence regarding speed. On appeal, the Superior Court ruled that the evidence was indeed admissible in that it was not a type of novel scientific evidence that needed to meet certain stringent expert evidentiary admissibility rules, such as the Frye test.

In his majority opinion, Judge Jack A. Panella noted that the prosecution presented evidence establishing "that the [black-box] technology has existed for almost 40 years, has been adopted by the major automobile manufacturers and has been recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle's speed prior to an impact."

It is also noted that while Judge David N. Wecht dissented on a procedural issue, he otherwise joined in the majority decision that the offered event data recorder information secured from the vehicle at issue did indeed satisfy the Frye test so as to be admissible.

Although the Safka decision was for some reason posted as a nonprecedential decision, it has served to open the door for consideration of such novel evidence. Surely, it is only a matter of time before this rule of admissibility is also tested in the civil litigation context.

The expectation is that courts addressing the issue of the admissibility of this automobile black-box information in the context of the less stringent standards applicable to civil litigation matters would find such evidence to be admissible.

Open Questions

In addition to the test of admissibility, there may also arise questions as to how such black-box information is authenticated. This issue may implicate the ruling and rationale of the Koch case on the authentication of text-message evidence. In other words, the black-box information may be treated similar to documentary evidence being authenticated under Rule 901, titled "Authenticating or Identifying Evidence."

Another open issue may involve the credibility of attacks on the veracity of the information contained in the black box. For example, technological attacks against the device similar to the need for DUI breathalyzer devices to be calibrated or otherwise confirmed to be in proper working order may give rise to a new kind of expert witness who may become common in such cases.

Moreover, once black-box information is found to be admissible in auto accident personal injury matters, the issue becomes whether a party may assert a spoliation defense against an opposing party for failing to preserve such black-box information after a car accident.

If such a spoliation defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black-box information that such information would have been adverse to that party's position.
It is noted, however, that in at least one case—Parry v. Dyer, Nos. 07-00,445, 06-00,679 (C.P. Lycoming Co. 2007), where the issue of spoliation was raised with respect to the failure of a party to preserve the black-box evidence in a car accident case—the court ruled that neither party would be charged with destruction of the evidence as issues remained as to which party had control over the vehicle following the accident.

Trend Toward Preserving Evidence

Although unfortunately listed as nonprecedential, Safka represents at least a foreshadowing of a trend that can be expected to rise not only in criminal matters but also in civil litigation matters in the form of increasing references to and, eventually, reliance upon information gathered from motor vehicle black boxes relative to the facts of an automobile accident.

As such, it may be wise for litigants on both sides of the bar to consider developing procedures to preserve event data recorder information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at  Attorney Cummins focuses his practice on the defense of personal injury matters in the context of motor vehicle, premises liability, and products liability litigation.

Tuesday, July 8, 2014

Judge Zulick Allows for Severance and Stay of Bad Faith Claims in Monroe Co. Post-Koken Matter

Judge Arthur Zulick

In his recent decision in the case of Comrie v. Atlantic State Ins. Co., PICS Case No. 14-096 (C.P. Monroe Co. May 29, 2014 Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a UIM carrier’s Motion to Sever and Stay the bad faith portion of the claims asserted in a post-Koken matter.  
In Comrie, the Plaintiff filed a breach of contract UIM claim along with a companion bad faith claim following a motor vehicle accident.  
In granting the Motion to Sever and Stay the Bad Faith Claim, the Court noted that, while a UIM claim is decided by a jury in state court, a bad faith claim is decided by the Court after a bench trial.  

Judge Zulick noted that if the cases had been tried together, evidence pertaining to the allegations of bad faith in handling the UIM claim would not be relevant to a jury’s determination of the UIM liability and damages claims.   Judge Zulick more specifically stated that the handling of the claims presented occurred after the collision and had nothing to do with the collision itself.  
In addition to ruling that the UIM count would be severed from the bad faith count, Judge Zulick also held that discovery and trial of the bad faith claims would be stayed pending the settlement for verdict or further order in the UIM claim.

I do not have a copy of this one.  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: "Case Digests," Pennsylvania Law Weekly (June, 2014).

No Liability for Valet Service for Returning Car to Visibly Intoxicated Patron

In its recent decision in the case of Moranko v. Downs Racing LP, 2014 Pa.Super. 128 (Pa.Super. June 24, 2014 Panella, J., Mundy, J., and Platt, J.)(Op. by Panella, J.), the Pennsylvania Superior Court held that Pennsylvania law does not impose a duty upon a casino's valet service to withhold the keys from a motorist if that person appears to be visibly intoxicated.
In so ruling the court upheld the entry of summary judgment in favor of the defense entered by Judge William H. Amesbury of the Luzerne County Court of Common Pleas and addressed the issue of first impression of the issue of the duty and ultimate liability of a valet service when a vehicle is returned to an allegedly intoxicated person.
The court found that no such duty exists under Pennsylvania law and reasoned that, even accepting as true the allegation that the Plaintiff's decedent was visibly intoxicated when he retrieved his vehicle from the valet service, Pennsylvania law did not impose any duty upon the casino or its valet service to withhold keys from a visibly intoxicated patron. 
Applying bailment law, the court noted that the valet service was, instead, duty bound to return the vehicle to its owner when requested.  Once the demand was made for the return of the car, the defendant no longer had control over the vehicle such that a duty could be imposed upon the valet service or the casino for returning the vehicle to a visibly intoxicated person.
I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, Attorney Brian Bevan of the Pittsburgh law firm of DiBella, Geer, McAllister & Best, P.C., and Attorney Walt McClatchy, Jr. of the Philadelphia law firm of McClatchy & Associates for bringing this case to my attention.
Anyone wishing to review this Opinion may click this LINK.

Wednesday, July 2, 2014

Pennsylvania Defense Institute Announces Annual Awards

I write to thank those members of the Pennsylvania Defense Institute, a statewide organization of defense counsel and insurance claims professionals, for selecting me to receive the Pennsylvania Defense Institute's 2014 Distinguished Defense Counsel of the Year Award.  I send a special thanks to Attorney Matt Keris, current PDI President, as well as Attorney Thomas McDonnell for suggesting my name in the first place.  I appreciate the honor of this surprise selection and thank you all very much for the same.

The PDI has also announced that they have awarded their Distinguished Insurance Claims Executive to Mark S. Hofer, their Legislator of the Year to Honorable Jake Corman, and their Distinguished Service Award to Justice J. Michael Eakin.

The Award will be handed out at the PDI's Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, Pennsylvania on July 18, 2014.

Nationwide Has An Order to Abide

In one of the latest decisions handed down in the Commonwealth in the context of insurance bad faith litigation, Judge Jeffrey Sprecher of the Berks County Court of Common Pleas has doled out an $18 million dollar award against Nationwide Mutual Insurance along with an award of $3 million in attorney's fees in the case of Berg v. Nationwide Mutual Insurance, No. 98-813-Civil (Berks Co. June 12, 2014 Sprecher, J.).

The underlying allegations by the Plaintiffs were that the carrier, in an attempt to avoid paying replacement costs, allegedly knowingly returned a vehicle to the Plaintiffs with structural issues despite four months of repairs and then paid its defense counsel millions of dollars to allegedly drag out the litigation of the disputed insurance claim.

In his detailed Opinion, Judge Sprecher reviewed the current status of Pennsylvania insurance bad faith law as well as the applicable standard for the award of attorney's fees in this context.

Anyone wishing to review Judge Sprecher's Opinion may click this LINK.

I sent thanks to Attorney Tim Lenahan of the Scranton law firm of Lenahan & Dempsey, and Attorney Paul Oven of the Moosic, PA office of the firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Open Issue of Identifying UM/UIM Carrier as Party Defendant At Trial Reviewed

Here's a LINK to a June 30, 2014 article by Zack Needles in The Legal Intelligencer entitled "Lawyers Confused About Insurer-Naming in UM/UIM Cases" in which the ongoing issue of whether a jury should be apprised of the identity of a UM/UIM insurance company in a post-Koken trial is reviewed.  As you will see, Mr. Needles contacted me for input on this still-troubling topic.

If you have trouble accessing the article through the link please let me know and I will send you a copy of the article.

Tuesday, July 1, 2014

You Can't Get Something for Nothing: Regular Use Exclusion Upheld - Again

In its decision from yesterday, June 30, 2014 in the case of Erie Ins. Group v. Catania, 2014 Pa.Super. 136, --- A.3d --- (Pa. Super. June 30, 2014 Shogan, Olsen, and Wecht, J.J.)(Op. by Shogan, J.), the Pennsylvania Superior Court handed down its latest opinion upholding the validity of the regular use exclusion.

The Erie v. Catania involved an accident where a person was injured by an uninsured motorist while in the course and scope of his employment.  The Plaintiff pursued an uninsured motorist (UM) claim with his personal carrier, Erie, which denied coverage under a regular use exclusion.  The trial court found in favor of Erie and the insured appealed.

The Superior Court affirms the trial court decision.  Following its recent 2013 decision in Hand v. City of Philadelphia, 65 A.2d 916 (Pa. Super. 2013) as well as the Supreme Court opinion in Williams v. GEICO, 32 A.3d 1195 (Pa. 2011) and another Superior Court opinion in Brink v. Erie Ins. Group, 940 A.2d 528 (Pa. Super. 2008), the Erie v. Catania court essentially held that the Plaintiff was not entitled to relief while driving a delivery truck for his employer which he did not own, which was not insured by Erie, and which the Plaintiff regularly used. 

Once again upholding the All-American principle that you can’t get something for nothing, the Erie v. Catania court also held that the Erie policy only covered personal vehicles and that the policy’s coverage and premium terms never contemplated exposure for injuries that occurred in a non-owned work vehicle.  Accordingly, the court found that the Plaintiff did not legally have any reasonable expectation of coverage under the Erie policy.

Click HERE to review the Erie v. Catania decision.

To view other Regular Use Exclusion posts here on Tort Talk, click this LINK.

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

Current Status of Tort Reform Efforts in Pennsylvania

Here is a LINK to a Law Review article recently published by Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer and Lara Antonuk, a graduate of Widener Law School
Scott B. Cooper, Esq.
Schmidt Kramer
entitled "The Royal Nonesuch:  How Tort Reformers are Pulling One Over on Pennsylvania," which outlines the writers' analysis of the current status of Tort Reform efforts in Pennsylvania.

Obviously, I do not agree with this Plaintiff's perspective on Tort Reform and the republication of the article here is not an endorsement of the same. 

I did, however, find it to be an excellent piece of legal writing in terms of clarity and with regards to the thorough history provided with respect to the joint and several liability law in Pennsylvania.  I thought it worthy of passing along in that regard.

It is noted that Attorney Scott Cooper will be a featured presenter at the upcoming Tort Talk Expo 2014 at the Mohegan Sun Casino in Wilkes-Barre, PA on September 26, 2014.  To register for the Tort Talk Expo, please click this LINK.  To book a hotel room at the Mohegan Sun Casino and Hotel for the event, click HERE.

Here is a LINK to the Agenda for the Tort Talk Expo 2014 - Hope to see you there.