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:
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."
Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again.
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.
"...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.
HONORABLE MENTIONS:
-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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