Tuesday, December 30, 2014

The 2014 Tort Talk Top Ten

As another year winds down to an end, here's a look back at some of the top cases and trends of the year in the 2012 TORT TALK TOP 10:

10.  Prospect for Medicare Set-Asides in Third Party Lawsuits Dead

According to a press release from The American Association for Justice, the Centers for Medicare & Medicaid Services (CMS) withdrew its proposed rule in tort actions on future medicals called the “Medicare Secondary Payer and Future Medicals” rule.  According to the AAJ, this means that, currently, there is no future medicals rule pending from Medicare and the prospect of having to do Medicare Set-Asides in third party liability matters is now dead.

9.  Doctrine of Forum Non Conveniens

In Lee v. Bower Lewis Thrower Architects, 2014 Pa.Super. 240 (Pa. Super. Oct. 22, 2014 Gantman, P.J., Bender, P.J.E., and Platt, J.)(Op. by Gantman, P.J.), the Pennsylvania Superior Court upheld a Philadelphia Court of Common Pleas judge’s ruling granting a Defendant’s Motion to Transfer under the Doctrine of Forum Non Conveniens.   This case represents one of the first appellate decisions applying the Pennsylvania Supreme Court’s recent Forum Non Conveniens ruling in the case of Bractic v. Rubendall.  

Anyone wishing to review the Pennsylvania Superior Court's decision in the Lee case, may click this LINK. 

8.  Right to Assign Bad Faith Claim Upheld

In Allstate Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014)(Op. by Saylor, J.)(Castille, C.J, Dissenting Without Opinion), the Pennsylvania Supreme Court ruled that a third party defendant tortfeasor hit with an excess verdict in a trial on personal injuries arising out of a motor vehicle accident may assign to the plaintiff his potential rights to sue his own automobile liability insurance carrier for a bad faith refusal to settle the case prior to trial.
The Supreme Court's decision may viewed at this LINK.

7.  Exercise of Federal Court Jurisdiction Over Insurance Coverage Actions Clarified

The case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), has been touted as the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.  While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a general proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court.  Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  The Third Circuit clarified the factors to be considered in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage is anticipated. 

Anyone wishing to review the Reifer Opinion by the Third Circuit Court of Appeals may click this LINK.

6.  Discovery of Attorney-Expert Opinions is Barred

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.

On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

5.   A Short-handed Pennsylvania Supreme Court – Again.

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again.  Time to consider a switch to merit selection process where the nominees are fully vetted in the same rigorous manner as Federal Court Judicial nominees are subjected to?

4.  Much Needed (Not Appellate) Guidance on Proper Jury Instructions for Post-Koken Cases  

In Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed cases from within and without Pennsylvania in an effort to formulate even-handed jury instructions designed to inform the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this particular matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims and defenses presented as opposed to the type of parties involved.  

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may click this LINK.

3.  Statutory Caps in Cases Against Governmental Agencies Upheld

 In Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014 ),  the Pennsylvania Supreme Court upheld the constitutionality of the statutory cap of $500,000 protecting local governmental agencies in personal injury tort claims.

The Court's Opinion in Zauflik can be viewed HERE. 

Justice Baer's Concurring Opinion can be viewed HERE.

2.  Right to a Fair and Impartial Jury Upheld 

In Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), the Pennsylvania Superior Court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that party’s peremptory challenges.  According to the Opinion, the jury that resulted in the Cordes case included a husband of a patient of the defendant doctor, the daughter of a patient of the defendant doctor, and an employee of the parent medical corporation whose subsidiary employed the defendant doctor.   The Opinions issued by the Cordes court all essentially agree with the notion that an important goal of jury selection is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of partiality to a disinterested observer.   In the end, it was held that the trial court erred in refusing, after the exhaustion of a party’s peremptory challenges, to strike for cause those jurors who had a close relationship to a Defendant doctor and/or were employed by the same company as that doctor despite those jurors’ assurances of impartiality.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.

1.  A New Analysis for Pennsylvania Products Liability Cases Adopted

In Tincher v. Omega Flex, Inc.,  the Pennsylvania Supreme Court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis.  The import of the Court’s lengthy Opinion is still being debated and is likely to lead to ongoing litigation on the proper analysis to be utilized in products cases in the years to come.

Concisely, the new strict products liability analysis adopted by the Pennsylvania Supreme Court was enunciated, as follows:

"...we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a  preponderance of the evidence."

The Court went on to emphasize that the issue of whether or not a product is in a defective condition was a question of fact to be considered by a jury and could only be decided by a court on a motion for summary judgment if the court found that no reasonable minds on a jury could differ on a conclusion that a product was not defective.

To review a copy of the Pennsylvania Supreme Court's lengthy decision in Tincher v. Omega Flex, click HERE.

In his Dissenting and Concurring Opinion, which can be viewed HERE, Justice Saylor noted, in part, that he favored the adoption of the Restatement (Third) of Torts analysis for products cases.

-Still awaiting appellate guidance on wide variety of Post-Koken issues
-Still awaiting appellate guidance on Facebook discovery issues
-Still awaiting appellate guidance on Cellphone Use in auto accident cases (punitive damages)
-Hudak-Bisset v. County of Lackawanna et al., No. 2007-CV-2401 (C.P. Lacka. Co. March 19, 2014 Minora, J.): recognizes cause of action for recovery of damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the negligence of a tortfeasor defendant in a car accident case.
-Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.

NOTE:  Portions of this blog post are copied from other previous Tort Talk blog post as well as my November 25, 2014 Pennsylvania Law Weekly Article entitled "THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME: A Review of Important Civil Litigation Cases and Trends in 2014"

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