Friday, February 27, 2015

Article Notes Potential For Ghostwriting of Expert Reports Under the Protection of Barrick v. Holy Spirit Hospital

Here is a LINK to an excellent article by Attorney Will Sylianteng of the Doylestown office of WES Litigation that appeared in the February 17, 2015 edition of the Pennsylvania Law Weekly and is entitled "District Court Sanctions Attorney for Ghostwriting Expert Report."

In reference to a case involving sanctions applied to an attorney in a Michigan federal court case, Attorney Sylianteng analyzes the pros and cons of the Pennsylvania court decisions in the case of Barrick v. Holy Spirit Hospital which limits discovery of communications between an attorney and a retain expert.

In his article, Attorney Sylianteng notes that while some members of the bar favor the Barrick decision, others have denounced the ruling (I'm not alone!) as opening the door for "unscrupulous [attorneys] to mold, if not create, their own expert's opinions."

If you are unable to access this interesting article via the link above please let me know and I will send you a copy.

I note that I was the writer of the Pennsylvania Defense Institute's amicus briefs at the Superior Court level in Barrick.  Click HERE to review my later May 6, 2014 Tort Talk article on the same topic entitled "A Sad Day for the Truth."

Thursday, February 26, 2015

Reference to Opinions in Police Report Prohibited at an Auto Accident Trial

In the case of Harris v. Phila. Facilities Mgmt. Corp., No. 39 C.D. 2014 (Pa. Cmwlth. Dec. 2, 2014 Simpson, McCullough, and Covey, J.J.)(Op. by McCullough, J.), the Pennsylvania Commonwealth Court addressed the propriety of a reference to a police report in a jury trial arising out of a motor vehicle accident.

In this matter, the Plaintiff motorcyclists wished to make reference a police officer's observations in his police report concerning a pothole in the area of the accident, which was allegedly a central fact and/or issue in the happening of the accident.  While the trial court noted that some basic facts contained in a police report may be referenced at trial under appropriate circumstances, since the pothole issue was central to this matter, the trial court excluded the police report as a whole.

In this matter, on cross-examination by Plaintiff's counsel, a police officer witness admitted that, prior to taking the witness stand, he had referred to the police report another officer wrote up.  The testifying officer did this to refresh his recollection but stated, on the stand, that he was otherwise testifying from his memory and without reference to the report while sitting on the stand.

In Harris, the Commonwealth Court reiterated the general rule that a police accident report is inadmissible in an auto accident case as hearsay evidence. 

However the appellate court went on to find that, under Pa.R.E. 612, it was within the trial court's discretion to allow for the witness to review the police report as part of an effort to refresh the witness's recollection.  Such a refreshing of a witness's recollection could be accomplished by presenting the witness with documents to review either before the witness takes the stand, or during the time the witness is on the stand.

This decision also supports the long-standing proposition that an expert accident reconstructionist may rely upon, and refer to, a police report in reconstructing an accident.  Citing to Pa.R.E. 703, the court noted that a police report is the type of data that such an expert witness is permitted to rely upon in formulating is opinion.  Here, the defense expert merely stated that he had relied upon the police report in formulating his opinion and there was no effort on the part of that expert to simply, and impermissibly restate, opinions contained in the police report on central issues to the case.

The Harris court likewise upheld the trial court's rejection of the efforts by the Plaintiff to introduce favorable opinions contained in the police report through the testimony of the Plaintiff's experts.  The appellate court cited to 75 Pa.C.S.A. Section 3751(b)(4) to support the ruling that a police report prepared by a police officer who did not witness the accident is inadmissible hearsay evidence and should not be admitted into evidence.  The court also noted that a party is not allowed to get such a report into evidence in an indirect manner.

Accordingly, based upon these rulings the appellate court did not find any errors that would require the granting of a new trial as requested.

The Harris decision can be viewed online HERE.

Tuesday, February 24, 2015

Superior Court Revisits Standard for Proper Expert Medical Testimony ("Non-Precedential Decision)

In its recent "Non-Precedential" decision in the medical malpractice case of Hickman v. Shor-Conroy, No. 2336 EDA 2014 (Pa. Super. Jan. 23, 2015 Donohue, Wecht, Jenkins, J.)(mem. op.), the Pennsylvania Superior Court applied the current status of the law on the admissibility of expert opinions and the doctrine of res ipsa loquitur and affirmed a lower court's entry of summary judgment.

Although "Non-precedential," the case could serve to assist in your research on the current status of these two legal concepts.

In Hickman, the Plaintiff attempted to rely upon the contents of her treating providers office notes as serving as the Plaintiff's expert reports.  The court noted that even "[a]ssuming arguendo that the records constitute expert reports, none of the records state, within a reasonable degree of medical certainty" that the Plaintiff's injuries were the result of the medical malpractice alleged.

While the court noted that the Plaintiff need not utilize "magic words," the use of terms of causation such as "most likely" or "in all likelihood" were not sufficient.

As stated the court also rejected the Plaintiff's res ipsa loquitur argument and, in doing so, concisely stated the current status of Pennsylvania law in that regard (referring to Section 328D of the Restatement (Second) of Torts).

Anyone wishing to review this "Non-precedential" Opinion of the Superior Court in Hickman, may click this LINK.

Source:  "Medical Reports Don't Count as Expert Reports, Panel Says," by P.J. D'Annunzio The Legal Intelligencer (Jan. 27, 2015).

Friday, February 20, 2015

ARTICLE: Improve Your Practice, Reduce Stress, and Prevent Nightmares

The below article of mine was published in the February 9, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission from the publisher, American Law Media.  All rights reserved.       
Legal Profession

Improve Your Practice, Reduce Stress and Prevent Nightmares

, The Legal Intelligencer             
We are all getting older, and possibly more forgetful. Here, then, is a list of some things to remember to improve your practice, reduce stress and prevent late-night terrors.

Check Statute of 
Limitations Date

Make sure you emphatically highlight the statute of limitations date on any new case that comes in and continually check that date every time you look at the file, up to the time suit is formally commenced. Once suit is commenced, don't fully relax in this regard until service on all defendants is perfected.

Similarly, on the defense side, when a new file comes in, counsel should not assume that the statute of limitations has been satisfied merely because the new suit has made its way to counsel's office for a defense. In addition to checking if the suit was filed in time, don't forget to also check if service was properly perfected.

Moreover, remember to also review the complaint to confirm that the suit was filed in the proper county so as to prevent any forum-shopping by the plaintiff.

Keep Clients Apprised

It has been repeatedly stated that the main client complaint on either side of the bar is the lack of timely communication and updates from counsel.

Rule of Professional Conduct 1.4 requires that a lawyer communicate with a client and keep the client updated. The Pennsylvania Bar Association's Working Rules of Professionalism recommend the same.

One way to avoid forgetting (or avoiding) continual updates to clients would be to set up a process where, on the first (or last) day of every month, you stand in front of your filing cabinets with a portable dictaphone in hand and spit out a short status update to each client in each file. More sophisticated attorneys who have brought their file handling into the 21st century can do this while sitting in front of their computers and scrolling through their files.

This may sound like a daunting, boring task, but once you start to do it, your letters and emails in the subsequent months will flow out smoothly and quickly and you will become very aware of the status of all of your cases from this repeated checking and reporting.

Review Pleadings and Interrogatory Answers 
with Witnesses

At depositions, once you have exhausted all of your standard questions, take a moment to review the pleadings and interrogatory answers of the opposing party. Such a review may trigger additional important questions to ask.

At a minimum, secure an agreement from the witness that he or she reviewed the pleadings and the discovery and that the signature on the verification is indeed the signature of the witness. Take it one step further and secure the witness' agreement that by signing the verification, he or she agrees that the information is true and correct to the best of his or her knowledge.

Get Answers to Expert Interrogatories

Expert interrogatories are generally sent out to opposing counsel as a matter of course at the beginning of a file. Opposing counsel usually replies to such interrogatories by indicating, "No experts retained to date. Discovery ongoing. Right to supplement and all objections preserved." The expert interrogatories are then forgotten.

Few things are more frustrating in civil litigation than fully preparing to cross an opponent's expert at a trial deposition but being unable to show bias of that expert toward the party because you forgot to follow up on securing complete answers to your expert interrogatories. Typically, an opposing expert will coyly assert that he or she cannot recall what his or her fee was to generate the report or to participate in the deposition.

So, when a file reaches the point where expert reports are produced, remember to follow up with opposing counsel to request that the expert interrogatories previously submitted be supplemented as promised or as required under Pennsylvania Rule of Civil Procedure 4007.4 or Federal Rule of Civil Procedure 26(e).

If necessary, file a motion to compel and request permission of the court to file Cooper v. Schoffstall expert interrogatories to discover the extent to which a "professional witness" expert has previously participated in litigation and has financially gained from it.

Arguably, if the opposing counsel has not previously objected to your expert interrogatories within 30 days of having received such interrogatories, any objections are waived.

This gives rise to another point: Don't forget to send out valid objections to your opponent's expert interrogatories the day you receive those interrogatories to avoid a waiver argument down the road.

Put Rule 238 Language in Settlement Offer Letters

When making any settlement offers to a plaintiff in any personal injury civil litigation matter, defense counsel should remember to include, verbatim, the language required by the delay damages rule, Pennsylvania Rule of Civil Procedure 238, so as to put a cap upon, or even prevent, the addition of such damages to any verdict.

Rule 238(b)(2) provides that, in order to have any effect under this rule, a written offer of settlement "shall contain an express clause continuing the offer in effect for at least 90 days or until commencement of trial, whichever occurs first," and the offer shall be set forth as a specific sum or in the form of a structured settlement.

Several courts in Pennsylvania have ruled that the word "shall" in Rule 238 requires that such language comport to the exact wording set forth in the rule in order to be valid. As such, don't forget to dictate the verbatim Rule 238 language into a form paragraph.

Accordingly, whenever you send out a settlement offer, ask your assistant to include the form Rule 238 paragraph in the letter so as to comply with the rule and potentially limit the plaintiff's recovery.

Stand When Addressing 
the Court

Apparently, showing respect to the court and members of the bench is a dying trend. Seasoned attorneys may become casual with the traditions of the courtroom, while new lawyers may somehow believe that the nonsense they see in courtroom scenes of television legal dramas is acceptable.

So don't forget to always stand whenever you address the court for whatever reason. When commencing an argument, it is traditional to begin with, "May it please the court." Throw in some, "Yes, your honor," and, "No, your honor." Don't forget to ask for permission to approach a witness.

Moreover, no matter what, whenever a judge starts speaking, stop whatever you are saying no matter how eloquent you may be. If a judge asks you a question, listen to that question and, more importantly, directly answer that question. Judges are lawyers like us and know when their questions are not being answered, so don't even try it.

Mimic Jury Instructions in Your Closing Argument

When preparing for a closing argument at trial, don't forget to review the jury instructions, standard or otherwise, that you know or can reasonably anticipate will be utilized by the court. Incorporate some of the verbatim language, or key phrases, from the instructions that are favorable to your case into your closing argument and say those same words and phrases to the jury.

Perhaps nothing will make you seem more trustworthy to the jury, or that you know what you are talking about, than having the judge say many of the same things in his jury instructions that you just said in your closing argument.

Take Care of Yourself

Perhaps more important than anything else in this article, don't forget to take care of yourself. If you are not in good mental and physical shape, your practice won't be in good shape.

We are at the beginning of a new year. Look ahead and plan some time off now while your calendar is clear. Mark those days or weeks as "Keep Open" or "Vacation." When you do take that time off, forget your phone.

And don't limit yourself to only those days off—take other days along the way if your schedule and time should permit for brief respites (perhaps with your phone at hand to keep emails at bay and matters moving along).

Eat well and make sure you secure sufficient sleep. Exercise, or at a minimum, as some fitness articles suggest, stand every time you are on the phone at your desk. Take a daily brisk walk after lunch. Join a gym, or join the yoga/meditation trend, for stress relief and good health habits.

Say Please and Thank You

Last, but certainly not least, don't forget to say "please" and "thank you" whenever you can throughout your day.

Say it to opposing counsel. What goes around, comes around. Kindness begets kindness.

Say it to the court. But don't say "thank you" whenever you win an objection—that's just plain tacky. While in court, don't forget to be equally polite to other court personnel, such as tipstaff, clerks, court reporters and the like. Those people have close contact with and regularly converse with isolated judges. Perhaps they will portray you in a positive light to the judge, which, in the end, will benefit your clients.

Perhaps most importantly, always say "please" and "thank you" to your co-workers and office staff—that is, the ones who make things go smoother for you day in and day out. 

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, can be viewed at

Read more:

Thursday, February 19, 2015

Judge Mariani of Middle District Tackles the Post-Tincher Era in Products Case

In what appears to be the first Post-Tincher federal court decision in Pennsylvania relative to products liability cases, Judge Robert D. Mariani of the Federal District Court for the Middle District of Pennsylvania applied Tincher retroactively and granted in part and denied in part a Defendant's motion for summary judgment in the case of Nathan v. Techtronic Industries of North America, Inc., No. 3:12 - CV - 00679 (M.D. Pa. Feb. 17, 2015 Mariani, J.).

This case involved a products liability claim arising out of injuries from the Plaintiff's use of a table saw.

Notably the court retroactively applied Tincher and its analysis, including the analysis with respect to the application of the Restatement of Torts (Second) test, i.e. the risk/utility test.

In denying the Defendant's motion, the court noted feasible alternative designs that could have possibly avoided the injury.

Judge Robert D. Mariani
M.D. Pa.
Judge Mariani also noted in his Opinion that the Plaintiff's alleged removal of a safety device associated with the table saw - more specifically, the saw blade guard - was foreseeable due to the design of the guard.

The court granted summary judgment with respect to the failure to warn claims and breach of implied warranty claims in light of the Plaintiff's apparent concession on those issues.

Anyone wishing to review this notable Opinion of first impression in the federal courts in the Post-Tincher era may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.  I invite you to check out Attorney Beck's nationally recognized Drug and Device Law Blog HERE.

Wednesday, February 18, 2015

Additional Testing for Psych IME Denied by Judge Minora

In  a recent February 10, 2015 decision in the case of Trojanowicz v. Ford Motor Co., No. 2013 - CV - 223 (C.P. Lacka. Co. Feb. 10, 2015 Minora, J.), Judge Carmen D. Minora addressed issues raised by a Defendant in a motion to compel a Plaintiff to undergo additional testing requested by an Independent Psychiatric Medical Examiner in a personal injury matter arising out of a motor vehicle accident.

In this matter, the defense referred the Plaintiff to a psychiatric IME to address the Plaintiff's complaints of post-traumatic stress disorder.  The Plaintiff completed an examination with the defense expert.  The defense filed a motion to compel the Plaintiff to undergo additional psychiatric tests as part of, and to complete, the IME process.

The Plaintiff countered by arguing that the tests were not medically necessary, that the test were not identified to Plaintiff's counsel prior to the evaluation, and that the tests were not even going to be completed by the evaluating psychiatrist.

Judge Carmen D. Minora
Lackawanna County
Judge Minora essentially denied the Defendant's appeal from the decision of the Lackawanna County Special Trial Master as untimely but went on to note how he would have ruled on the merits.  As such, Judge Minora's findings noted below are arguably dicta.

Citing to Pa.R.C.P. 4010, Judge Minora noted that whether or not to allow additional examinations was a decision left to the broad discretion of the trial court.  Given that the psychiatric IME doctor wrote in his initial report that he was able to come to accurate conclusions and opinions based upon the review he had completed to date, Judge Minora found that additional testing would not be allowed.

With respect to the defense argument that there would be no prejudice to the Plaintiff in allowing for additional testing, Judge Minora pointed out that prejudice to the Plaintiff was not a part of the analysis in the determination of whether to require the Plaintiff to submit to an IME.

The court also accepted as valid the Plaintiff's objections noted above with respect to the lack of notice being provided as to the type of testing, the identity of the person performing the testing, and that the additional testing was not medically necessary.

Anyone desiring a copy of this decision may contact me at

I send the prevailing Plaintiff's attorney, Christine Lezinski, Esquire of the Scranton, PA law office of Lenahan & Dempsey for forwarding this decision to my attention.

Updates, Trends and Thoughts Regarding Pennsylvania Civil Litigation Law
by Northeastern Pennsylvania Insurance Defense Attorney Daniel E. Cummins

Summary Judgment Entered Under Hills and Ridges Doctrine in Lawrence County Slip and Fall Case

In his recent decision in the case of Heichel v. Smith Paving and Construction Company, PICS Case No. 14-2058 (C.P. Lawrence Co. Oct. 15, 2014 Cox, J.), Judge J. Craig Cox granted summary judgment in favor of the Defendant landowner and snow removal company after finding that the Plaintiff failed to establish a valid case for negligence in that the Plaintiff failed to prove a causal relationship between the Plaintiff’s fall and the snow or ice the Plaintiff alleged was allowed to unreasonably accumulate upon a parking lot surface.  

According to the summary of the Opinion, the Plaintiff failed to explain whether the parking lot, including the immediate area of her fall, was actually covered with snow or ice.  The Plaintiff was also unable to recall many of the details from the incident including what type of shoes she was wearing or what time the fall occurred.   She also could not state the cause of her fall.  

The Defendants filed a summary judgment motion arguing that the Plaintiff was unable to establish the cause of her fall and was unable to demonstrate that any snow or ice had accumulated in ridges or elevations of such size as to unreasonably obstruct travel and create a dangerous condition as required by the Hills and Ridges Doctrine.   The trial court agreed with the defense position.  

The court noted that testimony suggested that there were generally slippery conditions in the parking lot that were caused by a sudden change in the weather.   The only testimony with regard to ice in the parking area was provided by one of the Plaintiff’s co-workers, who described the entire parking lot as being a sheet of ice due to a sudden change in the weather conditions.  

Moreover, there was no specific information or testimony regarding the conditions in the very specific area where the Plaintiff allegedly fell.  

In addition to granting summary judgment in favor of the landowner, the court also granted summary judgment in favor of Smith Paving, who performed snow removal services on the premises.   The court concluded that, since there was no evidence concerning the condition of the area where the Plaintiff fell, there was no evidence to support any reasonable inference that any icy conditions on the lot were due to the negligence by or improper procedures utilized by Smith Paving.  

As such, summary judgment motions filed by both Defendants were granted.  

Source: "Digest of Recent Opinions" in Pennsylvania Law Weekly.  Call Instant Case Service at Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee to secure a copy.

Tuesday, February 17, 2015

Crawford County Post-Koken Decision in Favor of Severance and Stay of Bad Faith Claims Pending Resolution of UIM Claim

In what appears to be the first such Post-Koken decision out of Crawford County, Judge Mark D. Stevens has ruled in favor of the UIM carrier's severance of and stay of bad faith claims in the combined UIM Breach of Contract and Bad Faith cause of action in the case of Rucci v. Erie Insurance Exchange, No. A.D. 2014 - 803 (C.P. Crawford Co. February 5, 2015 Stevens, J.).

In a thorough Opinion issued in the matter, Judge Stevens noted that the parties were in agreement that, in this state court action, the UIM breach of contract action was required to be decided by way of a jury trial and the bad faith claim via a bench trial.

Arguing under the doctrine of judicial economy, the Plaintiffs asserted that they should be allowed to conduct discovery relative to all claims even before the breach of contract claim was tried.  The Plaintiffs also asserted that they would be prejudiced by a refusal of the trial court to allow bad faith discovery.

The Defendant carrier argued that it would be prejudicial to allow bad faith discovery to proceed prior to the resolution of the UIM claim as such discovery would give the Plaintiff an unfair tactical advantage in that the mental impressions, conclusions, and impressions of the claims handler protected under Pa.R.C.P. 4003.3 would be disclosed prior to the resolution of the UIM claim.

The Plaintiff countered with the argument that Pa.R.C.P. 4003.3 refers to "representatives" of the Defendant and that, here, the discovery was being requested instead from the Defendant as a party.
The Plaintiff's also asserted that the Defendant carrier should be required to assert more specific objections to requested discovery rather than being allowed a blanket stay of all discovery.

Judge Stevens also reviewed a number of cases from around the Commonwealth on the same issue and noted that the other cases also emphasized the issues of judicial economy and prejudice.

On the prejudice issue, Judge Stevens agreed with those cases finding that it would be unfairly prejudicial to the UIM carrier defendant to have to provide bad faith discovery prior to the completion of the UIM matter.  Judge Stevens wrote, "The Court agrees that the information gleaned from bad faith discovery has the potential to give Plaintiffs an unfair advantage in the UIM litigation or unfair leverage in compelling settlement of the contract case."  Op. at p. 5.

On the judicial economy argument put forth by the Plaintiff, the court also noted that to allow the claims to proceed together and also allow bad faith discovery prior to the completion of the UIM claim would actually be less efficient.   More specifically, the court noted that, in such a scenario, more motions practice would result in the form of repeated motions for protective orders and the possibility of the court having to repeatedly review documents in an in camera fashion to decide the discovery disputes.  Judge Stevens noted that this could be simply avoided by severing the actions.

Judge Stevens also emphasized that UIM claims and bad faith claims are distinct and that, therefore, it was questionable as to what extent the discovery would overlap in the two claims.  As such, the Plaintiff's judicial economy argument in favor of combined discovery was rejected for this additional reason.

In this regard, Judge Stevens wrote, "The Court believes that there is little efficiency to be gained by combining discovery on these claims, and these proceedings would be more efficiently concluded if discovery advanced solely on the UIM claim until such time that that claim is resolved."  Op. at p. 7.

Judge Stevens also held that "bifurcating the claims and discovery causes Plaintiff no real harm, as the bad faith claim may continue beyond the resolution of the UIM claim."  Op. at p. 9.

In light of the above, Judge Stevens severed the UIM and Bad Faith claims and stayed discovery on the Bad Faith issues until the resolution of the UIM claim.

Anyone wishing to review this detailed Opinion by Judge Stevens in the Rucci case may contact me at

I note that the Post-Koken Scorecard on the Tort Talk blog will be updated with this decision.  Here's a quick LINK to the Scorecard, which is always freely accessible by going to the Tort Talk Blog at

I send thanks to the prevailing defense attorney, William Wagner, Esquire of the Erie, Pennsylvania law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott for bringing this case to my attention.

Pennsylvania Supreme Court to Address Issues Surrounding Video Depositions of Non-Expert Witnesses

In Dougherty v. Heller, No. 443 EAL 2014 (Pa. Feb. 4, 2014), the Pennsylvania Supreme Court has issued an order agreeing to review several issues raised with respect to a request to videotape a pre-trial deposition of a witness in a defamation action. 

Obviously, the Court's ruling on this issue will have an impact on the increasing trend of the Plaintiff's bar videotaping the depositions of party defendants in personal injury actions.

The Court's Order outlining the issues it will determine can be viewed HERE.

The Superior Court's en banc Majority Opinion can be viewed HERE (or at 97 A.3d 1257), and the Concurring and Dissenting Opinion HERE.

Monday, February 16, 2015

Northeastern Pennsylvania Jurists Dominate 2014 List of 25 Most Requested Opinions

In follow-up to last week's blog post touting Northeastern Pennsylvania attorneys leading statewide attorney associations (Matt Keris Esq. leading the PDI, Malcolm MacGregor leading the PAAJ, and Francis X. O'Connor leading the PBA), this blog post highlights the fact  that Opinions by several Judges from across Northeastern Pennsylvania dominated the Top 25 Most Requested Opinions from the Pennsylvania Instant Case Service (PICS) offered by the Pennsylvania Law Weekly.

Each year, the PICS service summarizes hundreds and hundreds of decisions.  The service recently publicized the list of the 25 most requested Opinions between August 1, 2013 and July 31, 2014.

Judge Carmen D. Minora
Lackawanna County
Lackawanna County Judge Carmen D. Minora led the way locally with 3 of the Top 25 most requested opinions in 2014.  Monroe County Judge David J. Williamson had 2 decisions on the list.

In terms of the Opinions by Northeastern Pennsylvania jurists in the 2014 Top 25, coming in at No. 2 on the list was a limited tort decision in which summary judgment was granted in by Judge David J. Williamson of Monroe County in the case of Bachman v. Lassell, No. 13 - CV - 0989 (C.P. Monroe Co. April 15, 2014 Williamson, J.).  The Tort Talk blog post on this decision can be viewed HERE.

At No. 3 on the list was  Lackawanna County Judge Carmen D. Minora's decision in the case of Davis v. Fidelity National Insurance, No. 2013 - CV - 2489 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), in which the court found that the defendant carrier violated Pennsylvania's bad faith statute along with other statutes pertaining to the prompt resolution of insurance claims.  Click this LINK to view the Tort Talk blog post on this decision--the blog post has a link to the actual Opinion as well.

Judge Terrene R. Nealon
Lackawanna County
Judge Terrence R. Nealon of Lackawanna County had the 8th most requested Opinion from PICS in 2014 with his decision in Venosh v. Henzes, No. 2013 - CV - 2223 (C.P. Lacka. Co. July 17, 2013 Nealon, J.).  In this medical malpractice action, Judge Nealon concluded that two event reports generated by the hospital involved as a result of two surgeries performed at the hospital were not protected from discovery under state and federal laws governing peer reviews and patient safety reporting.

At No. 12 on the Top 25 list was Judge Minora's Opinion in the case of Menard v. Pennymac Loan Services, No. 2013 - CV - 3062 (C.P. Lacka. Co. Oct. 13, 2013 Minora, J.).  With this Opinion, Judge Minora granted summary judgment to a defendant in a quiet title action after finding that the defendants were entitled to enforce the note and mortgage pertaining to the property despite a lost assignment.

Judge Minora's third entry on the Top 25 of 2014 list came in at No. 18 in the form of his decision in the case of Hudak-Bisset v. County of Lackawanna, No. 2014 - CV - 0509 (C.P. Lacka. Co. March 19, 2014 Minora, J.).  In this case, Judge Minora disagreed with a previous line of cases and allowed a Plaintiff to amend a Complaint to add wrongful death and survival action claims against a common carrier defendant where the Plaintiff allegedly committed suicide due to pain and depression suffered as a result of the subject accident.  To review the Tort Talk blog post on this one and secure a Link to the decision online, click HERE.

Judge Arthur L. Zulick
Monroe County
With the 19th most requested opinion in 2014, Judge Arthur L. Zulick of Monroe County addressed the scope of the protections provided by the Peer Review Protection Act in the case of Besecker v. Paul, No. 2013 - CV - 2166 (C.P. Monroe June 7, 2013 Zulick, J.).  In this case, a defendant medical center was found not to have waived all of the protections provided by the act relative to the defendant's conducting a meeting with the plaintiff following his problematic surgery and briefly discussing the results of a peer review.

Judge David J. Williamson
Monroe County
Monroe County Judge David J. Williamson's second entry in the Top 25 was at No. 21 with his decision in the case of Martinez v. Uckele, No. 2014 - CV - 0134 (C.P. Monroe Co. Dec. 9, 2013 Williamson, J.).  In Martinez, Judge Williamson denied a plaintiff's motion for summary judgment on
the issue of liability in a wrongful death proceeding arising out of a case where the defendant had been convicted of involuntary manslaughter.

Judge Stephen G. Baratta
Northampton County
The No. 23 most requested Opinion from last year was issued by Northampton County Judge Stephen G. Baratta in the case of Siegfried v. PennDOT, No. 2014 - CV - 1056 (C.P. Northampton Co. June 24, 2014 Baratta, J.).  In this case, the defendants motions for summary judgment were granted in a personal injury case alleging negligent maintenance of a stretch of road upon which the Plaintiff's decedent was killed.

Rounding out the list of most requested Opinions at No. 25 was a decision by Monroe County Judge Daniel M. Higgins in the case of Rivera v. Jemmott, No. 14 - CV - 0884 (C.P. Monroe Co. May 5, 2014 Higgins, J.).  In that case, Judge Higgins struck allegations from a defendant's Answer and New Matter due to the defendant's failure to assert facts in support of defenses asserted in the New Matter.

Source:  "Most Requested Opinions - 2014" from The Pennsylvania Law Weekly.

Source of Top 25

Friday, February 13, 2015

Lawyers In Love

Not exactly sure what they mean but, on this Valentine's Day Eve, I bring you the lyrics of Jackson Browne's "Lawyers in Love" (1983):

I can't keep up with what's been going on
I think my heart must just be slowing down
Among the human beings in their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love

God sends his spaceships to America, the beautiful
They land at six o'clock and there we are, the dutiful
Eating from TV trays, tuned into to Happy Days
Waiting for World War III while Jesus slaves
To the mating calls of lawyers in love

Last night I watched the news from Washington, the capitol
The Russians escaped while we weren't watching them, like Russians will
Now we've got all this room, we've even got the moon
And I hear the U.S.S.R. will be open soon
As vacation land for lawyers in love

To witness the vid, click HERE (I'm even less sure what the heck the video means--but the song title works for today (and tomorrow)).

Judge Burke of Luzerne County Finds No Homeowner's Coverage for Insured Who Injured Cops Arresting Him During Domestic Dispute

And then there's the other side of LOVE that can give rise to litigation.......

In his recent decision in the case of Nationwide Mutual Fire Ins. Co. v. Norton, No. 6557 of 2013 (C.P. Luz. Co. Oct. 24, 2014 Burke, P.J.), Judge Thomas F. Burke, Jr. granted Nationwide’s Motion for Summary Judgment in a declaratory judgment action on the issue of coverage under a homeowner’s policy.  

Judge Thomas F. Burke, Jr.
Luzerne County
Judge Burke framed the issue before him as involving a question of whether, under the subject Nationwide Insurance policy covering the real estate and residents own by Christopher and Rose Norton, Nationwide has a duty to defend or indemnify them for injuries sustained by police officers while arresting Christopher Norton on the property due to an alleged domestic dispute.  

After a review of the policy language at issue and the relevant case law, Judge Burke ruled that Nationwide did not have a duty to defend or indemnify the insured Defendants in the underlying claim pursued by the injured police officers.  

According to the Opinion, the police officers had responded to a call placed by Norton’s wife with regards to a potential domestic dispute.  During the course of responding to the call, the police officers were injured while arresting Christopher Norton.  

The subject Nationwide policy had an Intentional Acts Exclusion as well as a Criminal Acts Exclusion.

The Criminal Acts Exclusion expressly provided that the Exclusion applied regardless of whether the insured was actually charged with, or convicted of, a crime.  

Judge Burke set forth the relevant case law for coverage declaratory judgment actions which requires that the allegations of the underlying Complaint be reviewed against the language of the insurance contract.  Moreover, where the language of the insurance contract is clear and unambiguous, the court is required to give effect to that language. 

The records before the court confirmed that the insured, Christopher Norton, was arrested, charged criminally, and pled guilty to several counts of simple assault and a single count of resisting arrest.   It was equally clear to the court that the insured  had admitted to acting with a mens rea of conduct other than negligence when he committed these criminal acts by virtue of his guilty plea to the criminal charges.  

Judge Burke also ruled that the alleged injuries sustained by the police officers were indeed a result of the insured’s criminal acts as opposed to any negligent personal acts or negligence arising out of the ownership, maintenance, or use of the real or personal property covered by the policy.  

Ultimately, Judge Burke ruled that the allegations of the Plaintiff’s Complaint failed to invoke the personal liability coverage provisions of the policy and also fell under the liability exclusions listed elsewhere within the policy.  

As such, the court granted the Motion for Summary Judgment filed by the carrier and ruled that Nationwide was not legally obligated to defend or indemnify Defendant, Christopher Norton, in the underlying action arising out of the insured's criminal assaults that resulted in injuries to police officer(s) during a domestic abuse situation that occurred in the insured's home.  

Anyone desiring a copy of this Opinion, which contains a thorough recitation of the duty to defend/indemnify analysis for insurance coverage actions under a homeowner’s policy, may contact me at 


Tuesday, February 10, 2015

Top Statewide Attorney Associations All Led by Three Northeastern Pennsylvania Attorneys

Below is a copy of a February 10, 2015 Scranton Times Tribune article by Josh McAuliffe highlighting the fact that three different attorneys, all from Northeastern Pennsylvania, are the leaders of major organizations in our field, i.e. Matt Keris, Esq. of the Moosic, PA Office of Marshall, Dennehey, Warner, Coleman & Goggin is the current President of the Pennsylvania Defense Institute, Malcolm L. MacGregor of the Scranton, PA office of McDonald & MacGregor just finished a stint as the President of the Lackawanna Bar Association and is current President of the Pennsylvania Association for Justice, and Attorney Francis X. O'Connor a solo practitioner from Great Bend, PA is the current President of the Pennsylvania Bar Association.

Congratulations to all three attorneys.

Leaders of the Law:

Three NEPA attorneys head up trio of statewide associations of lawyers

Photo: N/A, License: N/A, Created: 2015:02:04 11:13:35
JAKE DANNA STEVENS / STAFF PHOTOGRAPHER Local attorneys, from left, Malcolm L. MacGregor, Francis X. O’Connor and Matthew P. Keris currently serve as presidents of, respectively, the Pennsylvania Association for Justice, Pennsylvania Bar Association and Pennsylvania Defense Institute.
Photo: N/A, License: N/A, Created: 2015:02:04 11:15:17
Attorneys from left Malcolm MacGregor, Francis O’Connor and Matthew Keris are currently serving as presidents of the three big attorneys’ organizations in the state. Jake Danna Stevens / Staff Photographer

It’s a rare feat when a Northeast Pennsylvania lawyer gets elected president of one of the major statewide attorneys organizations.

When three of them manage to head up the three biggest at once, it’s really something.

Such is the current unique situation for attorneys Francis X. O’Connor, Malcolm L. MacGregor and Matthew P. Keris, who, respectively, serve as presidents of the Pennsylvania Bar Association, Pennsylvania Association for Justice (formerly the Pennsylvania Trial Lawyers Association) and the Pennsylvania Defense Institute.

Mr. O’Connor of Great Bend Twp. has been in his position since May. Mr. MacGregor of North Abington Twp. has been in his since June, while Mr. Keris of South Abington Twp. has had his since July.

All three are year-long positions.

“To be elected by our peers to represent our respective organizations is something else,” Mr. Keris said, “because Pennsylvania lawyers in general are the best in the country.”

Not just a title

Mr. O’Connor is the 120th president of the 28,000-member PBA. He’s the first NEPA-based attorney to hold the post in about two decades.

The title is no mere honorarium but rather one that requires a fair bit of work. According to Mr. O’Connor, the time he puts into his Great Bend practice has been cut in half since he became PBA president.

“I describe myself as the chief cheerleader for the Pennsylvania Bar Association,” said Mr. O’Connor, 65. “My job is to get out there and tell people the benefits of belonging to the bar association.”

Among Mr. O’Connor’s biggest initiatives as president has been to expand the Wills for Heroes program to include military veterans along with police, firefighters and EMTs for whom it already provides free legal services.

The veterans’ initiative will continue for the next couple years, and Mr. O’Connor would love to see every lawyer in the state eventually participate in some way.

“Any veteran can call the 800 number for the PBA, and we will refer them to a lawyer in their community,” he said. “All I ask is a lawyer do something pro bono for a vet, whether (it be) a will or power of attorney. Anything they can that their practice entails. ... It’s something we need to do for veterans.”

Online law

Mr. MacGregor, 50, is the PAJ’s 46th president. There have been others from NEPA, he said, but they’ve been few and far between.

For the first six months of his tenure, Mr. MacGregor also met his duties as Lackawanna Bar Association president.

“Mike McDonald was a saint during that period,” said Mr. MacGregor with a laugh, referring to his law partner.

The PAJ serves about 2,500 trial attorneys throughout the state. Among other services, it provides computerized resources that allow members to share information, “almost like a little virtual law firm that helps people along in their practice,” Mr. MacGregor said.

Like the PBA and PDI, the PAJ works closely with lobbyists in Harrisburg on issues important to attorneys. It’s also heavily involved in the End Distracted Driving campaign, which a PAJ member founded after his daughter was killed by a driver who was texting.

“I feel lucky to do it. It’s a privilege,” said Mr. MacGregor, who is a candidate for the magisterial district judge position in the Abingtons. “It’s very humbling, and it also reinvigorates your pride in the profession to see people pitching in to volunteer.”

Room for improvement

In his role as the PDI’s 45th president, Mr. Keris, a shareholder in the Scranton office of Marshall Dennehey Warner Coleman & Goggin, oversees a membership of civil-litigation defense attorneys and insurance professionals.

So far in his tenure, Mr. Keris, 43, has worked on improving the organization’s technological capabilities to meet the needs of its younger members and adhere to the virtual law firm model.

Annually, the organization gives out an award to its defense lawyer of the year. The last three have come from NEPA and, as part of the honor, the PDI makes a donation to the charity of the winner’s choice.

“The Children’s Advocacy Center was one that has benefited from it,” Mr. Keris said.

Mr. O’Connor said that when his tenure ends May 8, he hopes he can say he left the organization in better shape than when he came in. While lawyers often are bashed, the vast majority are hardworking people trying to serve their communities. And these groups are a good way for them to do that, all three attorneys agreed.

As Mr. O’Connor likes to tell new members of the bar association, “Your legacy isn’t how much money you make in your lifetime, but how much good that you do.”

“I’ve gone throughout the commonwealth, and I’ve had the chance to meet lawyers from bigger counties and smaller counties, and found they’re all really the same,” he said. “They’re trying to do what’s right for their clients.”

Monday, February 9, 2015

Facebook Article Reviewed in Philly Voice

My recent article on Facebook Discovery in Pennsylvania Civil Litigation matters was covered by Philly Voice over the weekend.  Click HERE to review the Philly Voice article if interested.

Mentioning Affordable Care Act at Trial Violates Collateral Source Rule

A recent trend in Pennsylvania personal injury matters involves defense counsel pointing to the Affordable Care Act to support an argument against any recovery of alleged medical expenses claimed by the Plaintiff.  The argument is that such expenses are or will be covered by insurance under the Affordable Care Act and therefore, they need not be awarded by a jury.

Plaintiffs argue that the well-settled Collateral Source Rule should preclude any mention of any benefits from a collateral source in an effort to preclude or diminish the recovery of compensation from the alleged wrongdoer.

While the Collateral Source Rule has been around for a while, the Affordable Care Act is a relatively new law.

By way of background and according to the Medicaid website, "[t]he Affordable Care Act  provides Americans with better health security by putting in place comprehensive health insurance reforms that will:
  • Expand coverage,
  • Hold insurance companies accountable,
  • Lower health care costs,
  • Guarantee more choice, and
  • Enhance the quality of care for all Americans.
The Affordable Care Act actually refers to two separate pieces of legislation — the Patient Protection and Affordable Care Act (P.L. 111-148) and the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) — that, together expand Medicaid coverage to millions of low-income Americans and makes numerous improvements to both Medicaid and the Children's Health Insurance Program (CHIP).
This section focuses on the major provisions of the Affordable Care Act related to Medicaid and CHIP. If you are interested in the law as a whole, you can:

The issue of whether the defense in a personal injury litigation may refer to the Affordable Care Act during the course of a jury trial was recently addressed in the case of Deeds v. University of Pennsylvania, No. 755 EDA 2014, 2015 Pa. Super. 21 (Pa. Super. Jan. 30, 2015 Lazarus, Wecht, and Strassburger, J.J.)(Opinion by Wecht, J.).

In Deeds, a defense verdict in a medical malpractice case was reversed and remanded for a new trial. 

On appeal, the Plaintiff argued, in part, that she was "entitled to a new trial because the trial court violated the collateral source rule when it 'improperly allowed [the Defendants] to inform the jury that [the Plaintiffs’] substantial medical needs were all being attended to at little to no cost to [the Plaintiffs’] legal guardian due to the existence of state and federal education and medical benefits programs.”  Op. at p. 4.  The defense referred to Medicaid as well as to how President Obama's Affordable Care Act would impact the future care costs in the case.

The Superior Court found these references at trial to be a patent violation of the long-standing Collateral Source Rule, the purpose of which is to "avoid the preclusion or diminution of the damages otherwise recoverable from the wrongdoer based on compensation recovered from a collateral source," and, as such, remanded the case for a new trial.

Anyone wishing to review this decision may click this LINK.

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

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Intentional Infliction of Emotional Distress Claim Allowed in Med Mal Context


In his recent Opinion in the case of Young v. Jameson Memorial Hospital, PICS Case No. 15-0049 (C.P. Lawrence Co. Nov. 19, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the Plaintiff was not precluded from asserting a claim of intentional infliction of emotional distress in a medical malpractice claim.  

According to a summary of the Opinion, the Defendants filed Preliminary Objections to the Plaintiff’s Complaint alleging, in part, that the Pennsylvania Supreme Court had not adopted a tort of intentional infliction of emotional distress and that, in any event, the Plaintiff did not set forth allegations of outrageous conduct to support such a claim.  

Judge Cox noted that the tort of intentional infliction of emotional distress is set forth in the Restatement (Second ) of Torts §46.   Although the trial court agreed that the tort had not been explicated accepted, or rejected, by the Pennsylvania Supreme Court, appellate case law, including cases from the Pennsylvania Supreme Court, the Pennsylvania Superior Court and the Third Circuit consistently addressed the tort of intentional infliction of emotional distress despite the fact that the Supreme Court had not officially adopted the Restatement standard.   Accordingly, there is no indication in the case law that the Plaintiff asserting such a claim had been precluded from recovery other than for an inability to set forth adequate facts or proof in support of such claims. 

As such, Judge Cox ruled in Young that the Plaintiff was permitted to attempt to prove such a claim.  The court went on to note that the Plaintiff had asserted sufficient facts that, if proven, would sustain a claim for intentional infliction of emotional distress.   The underlying facts in this case involved a hospital staff member and/or a doctor who informed the Plaintiff that her child was stillborn after a birthing procedure when, in fact, the Plaintiff gave birth to a health child.  

The court additional overruled the Defendant’s Preliminary Objections to the Plaintiff’s for punitive damages on the grounds that the conduct necessary to support the claim of intentional infliction of emotional distress was beyond that which would also entitle Plaintiff to a recovery of punitive damages for other torts.  

As such, the trial court overruled the Defendant’s Preliminary Objections in this regard.  The court also overruled Preliminary Objections asserted by the Defendants with respect to other issues and also denied other Preliminary Objections asserted.  

I do not have a copy of this decision.   Anyone wishing to secure a copy of this decision may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427, providing the above-referenced PICS Case Number and paying a small fee.  

Source:  “Digest of Recent Cases”, Pennsylvania Law Weekly (January 20, 2015). 

Friday, February 6, 2015

Villanova Law Review Article (Online Edition) on Social Media Discovery In Pennsylvania


Tolle Lege, the online edition of the Villanova Law Review, has published my Article entitled "'NEW WINE IN AN OLD BOTTLE':  THE ADVENT OF SOCIAL MEDIA DISCOVERY IN PENNSYLVANIA CIVIL LITIGATION MATTERS," 60 Vill. L. Rev. Tolle Lege 31 (2015).

Here is a LINK to view the Article online.  (When you get to that site, click on the "DOWNLOAD" button to get to the article).

I send great thanks to Hayley Lenahan, a Villanova University School of Law J.D. Candidate for 2015 and Managing Editor of Tolle Lege/Villanova Law Review for accepting my Article for publication.  I also send thanks to the Editorial Board of the Villanova Law Review for their excellent edits to the Article.

The Article outlines those Pennsylvania trial court decisions to date on the issue of Facebook discovery and other similar issues.   As of January, 2015, there have been no Pennsylvania appellate court decisions on these emerging issues.

The Article is considered to be innovative in that, if you click on the bolded case names in the Article, it will link and take you to the actual Opinions or Orders online.

The same can be said with respect to the listing of the cases on the Tort Talk Blog Facebook Discovery Scorecard, which can always be viewed by (1) going to, (2) scrolling down the right hand column, and (3) clicking on the date under "Facebook Discovery Scorecard."

As cited in the very first footnote in the Article, the title, "New Wine in an Old Bottle," was taken from the Opinion written by Judge Terrence R. Nealon in the Brogan case, which is an excellent decision to study to obtain a thorough analysis of this area of the law.

If you wish to secure a copy of this Villanova Law Review Article in PDF format, please use this LINK.

Should you happen to come across any other Social Media/Facebook Discovery decisions, and if you are willing, please email me a copy of the decision in order that the Facebook Discovery Scorecard on Tort Talk may be updated for the benefit of all.

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Thursday, February 5, 2015

Pennsylvania Superior Court Touches Upon Spoliation in Products Liability Case Against Ford Motor Company

The Pennsylvania Superior Court’s recent decision in the case of Parr v. Ford Motor Company, 2014 Pa. Super. 281 (Pa. Super. Dec. 22, 2014)(En Banc)(Op. by Shogan, J.)(Wecht, J. Concurring), is notable due to the court’s decision, in part, that the trial court did not err in issuing a spoliation charge to the jury and permitting the introduction of spoliation evidence by the Defendant where the Plaintiffs stipulated that they had failed to preserve the vehicle in a products liability case.  It was also stipulated that the Defendant, Ford Motor Company, never had a chance to examine the vehicle.  

The court found that the defense was clearly prejudiced by the destruction of the evidence since multiple experts testified that, in examination of the vehicle, would have aided their analyses.  

Accordingly, the Superior Court in Parr found that the trial court did not abuse its discretion in given an adverse inference jury instruction as a sanction under the circumstances presented.  

Anyone wishing to review a copy of the Majority Opinion may click this LINK.

Judge Wecht's Concurring Opinion may be viewed HERE

PA Supreme Court Says Police Owe No Duty of Care to Passengers in Fleeing Vehicles (Also--Interesting Comment by Court on MSJ Evidence)

In its recent decision in the case of Sellers v. Township of Abington, No. 97 MAP 2013 (Pa. Dec. 29, 2014) (Majority Opinion by Stevens, J.), the Pennsylvania Supreme Court affirmed the entry of summary judgment in a police pursuit case after finding that the police owed no common-law duty to a passenger in a vehicle fleeing from them in a high speed chase.

As support for this decision, the court stated that an injury to an unknown passenger is not foreseeable and imposing a duty upon the police owed to unknown passengers in a fleeing vehicle would be an unreasonable and unworkable burden, that would essentially serve to halt any police pursuits and encourage criminals to flee.  

Also of note from this decision is a statement by the Pennsylvania Supreme Court in the last few paragraphs of the majority Opinion in which the court found that there were no genuine factual disputes to preclude the entry of summary judgment where, despite conflicts in the testimony of the witnesses, the police on-board cameras’ video of the incident “blatantly contradict[ed]” the contrary oral testimony offered by the Plaintiff.  

As noted by Attorney James M. Beck of the Philadelphia office of Reed Smith who is one of the creators and writers of the highly recommended DRUG AND DEVICE LAW BLOG, and who tipped me off on this decision, such statements by the Pennsylvania Supreme Court could support other similar arguments.

For example, as noted by Attorney Beck, in the context of a summary judgment motion, not only can valid, contemporaneous video tape evidence be utilized to support a Motion for Summary Judgment despite contradicting oral testimony, but perhaps automotive “black box” information could be utilized in the same fashion to support or defeat such a motion despite testimonial evidence to the contrary on a particular issue.  

Interesting thought.

Anyone wishing to review a copy of the majority Opinion issued by Justice Stevens of the Pennsylvania Supreme Court in the Sellers case can click this LINK.
Justice Saylor's Concurring Opinion can be viewed HERE.
Justice Todd's Concurring Opinion can be viewed HERE.
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Tuesday, February 3, 2015

Pennsylvania Superior Court's Latest Take on the Trivial Defect Doctrine

The Pennsylvania Superior Court revisited the Trivial Defect Doctrine most recently in the case of Reinoso v. Heritage Warminster SPE LLC,  2015 Pa. Super. 8, No. 3174 EDA 2012 (Jan. 14, 2015 Stabile, Ford Elliott, Bowes, Allen, Wecht, Jenkins, J.)(Ott, Bender, Shogan, J., dissenting)

The Court reversed a trial court's entry of summary judgment in favor of a defendant possessor of land.  The trial court had ruled that a 5/8 inch differential  was indeed a trivial defect. 

Reiterating the law that there is no bright line rule as to what constitutes a trivial defect as a matter of law and emphasizing that the Plaintiff produced an expert who opined that the alleged defect exceeded safety standards, the Superior Court reversed the entry of summary judgment, ruling that the issue should be left for a jury to decide.

Anyone wishing to review the Superior Court's majority Opinion in Reinoso may click this LINK.

The Dissenting Opinion, in which the dissenters stated that they would have upheld the trial court's finding that a 5/8 height differential in the sidewalk surface was indeed a trivial defect as a matter of law, can be viewed HERE.

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Monday, February 2, 2015

Third Circuit Affirms Summary Judgment for UIM Carrier Due to Lack of Evidence That Tortfeasor Was "Underinsured" (DECISION IS "NOT PRECEDENTIAL")

Tort Talkers may recall that I previously reported on the Pennsylvania Eastern District Federal Court decision of Gallagher v. Ohio Casualty Insurance Company HERE in which the federal trial court ruled that a Plaintiff was barred from pursuing a UIM claim after participating in a non-binding mediation that resulted in a settlement of the third party claim at an amount less than the third party tortfeasor's liability limits.


On January 29, 2015, the Third Circuit Court of Appeals issued its "Not Precedential" decision in the case with the citation being Gallagher v. Ohio Casualty Ins. Co., No. 14-2687 (3d Cir. Jan. 29, 2015 Hardiman, Scirica, and Barry, Circuit Judges)(Op. by Barry, Circuit Judge).

The Opinion notes that the decision in this case by the Third Circuit is not an opinion of the full court and, pursuant to I.O.P. 5.7, "does not constitute binding precedent."

The third party tortfeasor was covered by a liability policy with $100,000 in liability limits.

In the third party matter, the Plaintiff agreed to a "private, non-binding arbitration" at which the arbitrator evaluated the case as having a value of $41,715.  The Plaintiff initially rejected that assessment, but later agreed to settle the third party matter for that exact same amount.

Thereafter, when the Plaintiff filed suit against the UIM carrier, the UIM carrier eventually filed a motion for summary judgment arguing collateral estoppel. 

The trial court rejected the collateral estoppel argument but found that the UIM carrier was entitled to summary judgment given the lack of evidence produced by the Plaintiff to show that the tortfeasor defendant was underinsured.  In other words, the Plaintiff failed to present evidence that her damages met or exceeded the amount of the tortfeasor's liability limits.

The Third Circuit rejected the Plaintiff's assertion that the trial court concluded that the Plaintiff was not entitled to UIM benefits because she accepted a settlement less than the liability limits--the Third Circuit found this assertion to be a mischaracterization of the trial court's reasoning.

Rather, the Third Circuit agreed with the trial court's actual finding and reasoning that the Plaintiff had failed to produce any evidence that the third party tortfeasor was "underinsured" so as to support the Plaintiff's effort to pursue UIM benefits in this matter after having settled with the tortfeasor at an amount substantially less than the available liability limits.

The court noted that the Plaintiff's allegations of "serious" or "permanent" injuries as well as economic damages, without more, only amounted to "unsupported allegations in the pleadings" which, as a matter of law, were insufficient to establish any genuine issue of material fact.  Accordingly, the UIM carrier's summary judgment motion was granted.

It is reiterated that the Third Circuit marked its decision as "Not Precedential."  Anyone wishing to review a copy of the Third Circuit's Opinion may contact me at

The trial court Opinion in Gallagher may be viewed at this LINK.  The related Court Order can be viewed HERE.

To review Tort Talk blog posts on cases that do apply the application of the Collateral Estoppel Doctrine in the context of Post-Koken third party liability/UIM auto accident cases, click this LINK.

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Updates, Trends and Thoughts Regarding Pennsylvania Civil Litigation Law by
Northeastern Pennsylvania Insurance Defense Attorney, Daniel E. Cummins