Wednesday, August 26, 2015

Lackawanna County Judge Nealon Addresses Forum Non Conveniens Motion For Transfer of Venue

In his recent August 3, 2015 Opinion in the case of Horst v. Union Carbide Corporation, No. 2015-CV-1903 (C.P. Lacka. Co. Aug. 3, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant’s Petition to Transfer Venue of a personal injury asbestos action on forum non conveniens grounds.

According to the Opinion, the Defendant, who maintained its principal place of business in Lancaster County, petitioned the court to transfer venue to Lancaster County under a primary argument that the litigation of this matter in Lackawanna County was vexatious and/or oppressive to the Defendants.

Judge Nealon reviewed the current status of the standard of review on a petition for a transfer of venue on the Pa. R.C.P. 1006(d)(1) in a thorough Opinion.

Concisely, Judge Nealon noted that, in order to prevail on such a Petition for Transfer of Venue under the doctrine of forum non conveniens, the Defendants must establish "with detailed information on the record" that the Plaintiffs’ choice of forum is either (1) designed to harass the Defendants, or (2) appreciably burdensome in terms of access to witnesses and trial evidence.

After noting that the record before him did not support a finding that the Defendant had met the required elements of the test, Judge Nealon denied the Petition to Transfer Venue to Lancaster County under Rule 1006(d)(1) as the Defendants had not met their "heavy burden" imposed under Pennsylvania law. 

Anyone wishing to review this Horst Opinion by Judge Nealon may click this LINK.

Friday, August 21, 2015

ARTICLE: Vexatious Attorneys Should be Put in their Place

Below is a reprinting of my August 11, 2015 article from the Pennsylvania Law Weekly.  It is republished here with permission from the editor/publisher.  All rights reserved.

Legal Profession

Vexatious Attorneys Should Be Put in Their Place

Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly

August 11, 2015

Is there anything worse than a regularly rude, obnoxious, vexatious opposing counsel who acts purposefully to make the lives of other attorneys difficult? How about a judge either unwilling or unable to police his or her courtroom by resolutely stepping into the fray and swiftly putting the unnecessarily overzealous attorney into his or her place?

The Rules of Professional Conduct, the Code of Civility and the Pennsylvania Bar Association's Working Rules of Professionalism outline what is expected of the professionals who partake in the profession of the practice of law.

Yet, unless such ethical rules and codes of professionalism are enforced, those few wayward attorneys out there will, with impunity, continue to wreak havoc, bully their way through their careers, and cause unnecessary stress to others.

Overzealous Litigating is Unethical

In his Dec. 16, 2014, column in the Law Weekly, Chester County attorney Samuel Stretton, an analyst of attorney and judicial ethics, addressed the following inquiry: "I am dealing with a lawyer on the other side of litigation who calls himself extremely zealous. There is no issue he does not fight, there is no motion he does not file, and he treats me as if I was a mortal enemy. Is this kind of conduct acceptable and ethical?"

Stretton responded with a resounding and unequivocal, "No, this conduct is not acceptable."

Stretton went on to acknowledge in his article that attorneys are required to zealously represent their clients in a vigorous fashion, but still within certain limits. As examples, Stretton pointed to Rules 3.3 and 3.4 of the Rules of Professional Responsibility, which deal with fairness and candor to opposing counsel and to the court system.

The descent of properly zealous litigation down to just plain ignorance and bullying can possibly be partly blamed upon what young lawyers see on TV shows and movies glorifying smart alecky or downright rude attorneys. On the other hand, remember all the baby sharks that populated your law school class? Those former classmates, believe it or not, are now practicing lawyers with basically the same personality they had in law school.

For some lawyers, being rude and vexatious is innate. And, if allowed to continue unchecked, that poor behavior and unprofessionalism exhibited by some will continue to grow and expand, as the unfortunate natural tendency of such persons is to keep pushing the envelope until they are stopped.

As Stretton emphasized in his article, a "good lawyer doesn't focus on being overzealous or a bulldog." Rather, lawyers who excel in the practice focus on developing their knowledge of the law and advocate on behalf of their clients with the desired end in mind, as opposed to tangentially seeking to make every step of the litigation difficult for the opposition.

Duty of Judges to Police Their Courtroom

While bully attorneys attempt to intimidate and push their way through litigation outside of the courtroom, in the face of authority in the courtroom, they typically become as obsequious and magnanimous as Eddie Haskell from the old "Leave It To Beaver" episodes.

One typical tactic of such attorneys is to wrongfully withhold discovery and, when brought before the court on motion to compel, finally relent and agree to produce the requested, totally appropriate discovery. Such an attorney may even go so far as to make a grand pronouncement to the court that the parties were able to amicably resolve the issue prior to the need for any argument, knowing full well that their position was without merit in the first place and required needless expense, time and travel for the opposing counsel or that attorney's client relative to the court appearance.

In such scenarios, there may be no way for the court to act to curtail such behavior. However, when such issues do go to argument, and the court can sense shenanigans being played by one attorney in discovery or otherwise, opportunities arise for the court to let such counsel know that vexatious conduct in litigation will not be tolerated in that judge's courtroom.

As set forth in the Pennsylvania Trial Advocacy Handbook at Section 6.02, "in our courts, the trial judge is not a mere referee or moderator confined to calling fouls and making rulings when counsel require him to do so. It is his duty to see that the trial is conducted in an orderly fashion and that counsel, the parties and the witnesses conduct themselves properly."

In this regard, the courts of Pennsylvania have held that trial court judges have significant authority to police the proceedings in their own courtrooms as may be required by conduct of counsel, as in Commonwealth v. Sojourner, 408 A.2d 1100 (1978).

Misconduct in the courtroom, even in the form of a lack of professionalism toward the court or opposing counsel, should be treated as a serious matter, and the "onus is on the trial judge to avert or cure it" in order to ensure a fair trial on the merits for all parties, as the court held in Sojourner.

Under Pennsylvania law, any misconduct can and "should be checked immediately by the court on its own motion."

It has also repeatedly been held that the question of whether or not a lawyer's conduct goes beyond the limits of legitimate advocacy is "primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused," as in Abrams v. Philadelphia Suburban Transportation, 264 A.2d 702, 704 (1970), and Ace American v. Lloyds, 939 A.2d 935 (Pa. Super. 2007).

However, in order to fully keep these wayward bully attorneys in check, it may be necessary not only for the trial court judge to put them in their place in the courtroom but to consider referring the attorney and the matter to the Disciplinary Board. Surely, a referral of a matter of discipline to the board by a judge, as opposed to an attorney, would have more weight. By and large, attorneys are reluctant to report other attorneys for unprofessionalism, believing that a proper remedy to the situation will not be forthcoming, thereby leaving the reporting attorney to have to deal with a now vengeful bully attorney for the rest of his or her career.

If, however, the matter is referred to the board, the issue becomes to what extent the board desires to uphold the applicable rules pertaining to professionalism and professional conduct.

Notably, reading the periodically published notices of discipline put out by the board fails to reveal any regular public reprimands for such conduct pertaining to unprofessionalism and unnecessarily vexatious conduct. If such cases are instead being handled only by way of private reprimand by the board, a question remains as to whether such handling is effective in correcting the aberrant behavior at issue.

Unfortunately, overzealous, rude and obnoxious attorneys will always be around to make things difficult and give the practice of law a bad name. Fortunately, these attorneys are the exception and not the norm. But it sure would be nice to see one of them put in his or her place once in a while. 

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at

Wednesday, August 19, 2015

Judge Williamson of Monroe County Addresses Parameters of Discovery of Cell Phone Information

In his recent decision in the case of Reilly v. Lanzerotti, PICS Case No. 15-1150 (C.P. Monroe Co. May 20, 2015 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Plaintiff’s Motion to Compel a Defendant to execute an authorization for release of cell phone records in a motor vehicle accident case.

According to a summary of the Opinion, in this motor vehicle personal injury matter, the Plaintiff alleged that the Defendant was operating his vehicle in an negligent manner when he crossed the center line and struck the Plaintiff’s vehicle. The Plaintiff also made a claim for punitive damages on the basis that the Defendant was allegedly driving drunk at the time of the accident.

The Plaintiff requested a signed authorization to secure the Defendant’s cell phone records for the date of the accident.  The Plaintiff argued that the cell phone records were necessary to track the Defendant’s whereabouts that day in conjunction with allegedly being intoxicated, as well as to obtain information regarding people he may have spoken to on the day of the accident who may have relevant information.

The defense argued that the cell phone information would only be relevant to show whether or not the Defendant was talking on the phone at the time of the accident. Accordingly, the Defendant contended that only the records for the day of the accident, with the times of the calls showing, but all of the phone numbers being redacted, was relevant and discoverable.

Judge David Williamson
While the Judge Williamson acknowledged the Defendant’s claim of a general right to privacy regarding his cell phone records, the court found that the relevant information, and also information that would possibly leading to the discovery of other relevant information, that may be generated by the release of the full cell phone records for the day of the accident outweighed the privacy concerns.

As such, the court granted the Plaintiff’s Motion to Compel the execution of the authorization for the release of the cell phone records. Judge Williamson further ordered that neither the Plaintiff nor his counsel could release the records to anyone else other than the Defendant or Defendant’s counsel. The court also ordered that the Plaintiff only utilize the cell phone information in the course of the subject litigation.

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

Source: "Digest of Recent Opinions" Pennsylvania Law Weekly (July 28, 2015).

Sunday, August 16, 2015

Pennsylvania Superior Court Holds that Quality of Care Reviews Conducted by Blue Cross are Discoverable in Med Mal Cases

In its recent August 7, 2015 Opinion in the case of Venosh v. Henzes, 2015 Pa.Super. 169 (Pa.Super. 2015)(Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the trial court discovery decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas requiring Blue Cross to produce information concerning a quality-of-care review that it conducted regarding the underlying incident in this medical malpractice action.

This appears to be the first Pennsylvania appellate court decision on the issue.

Anyone wishing to review this Venosh decision may click this LINK.

UPDATEOn March 1, 2016, the Pennsylvania Supreme Court issued an Order denying a Petition for Allowance of Appeal.  Click HERE to view that Supreme Court Order.

Wednesday, August 12, 2015

Pennsylvania Superior Court Addresses Statute of Limitations for a Declaratory Judgment Action

In its recent decision in the case of Selective Way Insurance vs. Hospitality Group Service, 2015 Pa. Super. 146 (Pa. Super. July 7, 2015), the Pennsylvania Superior Court ruled that the statute of limitations for the filing of a declaratory judgment action by an insurance company on the duty to defend and/or indemnify begins to run when the cause of action for declaratory judgment arises.

More specifically, the court stated that a determination as to when the cause of action for a declaratory judgment arises requires a determination by the trial court of when the insurance company had sufficient factual basis to support contention that it had no duty to defend or indemnify its insured in the underlying matter.

The Majority Opinion by Judge Donohue can be viewed HERE.

The Dissenting Opinion by President Judge Emeritus Ford Elliott can be viewed HERE.

The Dissenting Opinion by Judge Mundy can be viewed HERE

Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (August 3, 2015).

Monday, August 10, 2015

Tort Talk Expo 2015 CANCELLED Due to Trial Schedule

I regret to announce that a looming trial schedule set for September and October, including a two week trial in September, is forcing me to cancel the September 24, 2015 Tort Talk Expo CLE and Cocktail reception at the Mohegan Sun Casino.

 I apologize for any inconvenience and will keep you advised as to any future events.
If you have sent in payment for a sponsorship or to attend, a full refund will be sent back shortly.
Thank you.


Judge Minora of Lackawanna County Rules on Jury Selection Issues.

In his recent decision on post-trial motions in the medical malpractice case of Carlitz v. Delta Medix, No. 2011-CV-1458 (C.P. Lacka. Co. July 15, 2015, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed, in part, the issue of whether the court should have stricken prospective jurors for cause based upon their situation on financial relationships with a Defendant medical provider and a Defendant doctor.

The court noted that, in support of their challenge for cause during jury selection, Plaintiff cited to the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied, 102 A.3d 986 (Pa. 2014). The Plaintiffs otherwise objected to the fact that they were required to use their peremptory challenges on certain perspective jurors who had treated with a Defendant medical provider and/or the Defendant's expert witness doctor, or who had been employed by one of the Defendants. According to the opinion, overall, the Plaintiffs had objections to at least four (4) of the jurors who were empaneled.

Judge Carmen D. Minora
Lackawanna County
Judge Minora reviewed the law pertaining to the granting or denying of challenges to a prospective juror and applied that law to the case before him.

Although the court found that it need not rule on this jury issue because it already determined that the Plaintiffs were entitled to a new trial based upon other statements made by defense counsel during the course of the trial, Judge Minora nevertheless concluded that the Plaintiffs’ contention that certain prospective jurors should have been removed for cause is without merit (raising a question as to whether this portion of the decision amounts to dicta -- the decision is instructive in any event). Rather, the court believed that the Plaintiffs attempted to use cause challenges where peremptory challenges were required.

Judge Minora also emphasized that, at issue in this matter, where alleged relationships between the jurors and professional corporation Defendants as opposed to party Defendant positions, as was the case in the Cordes matter. Overall, Judge Minora stated that there was no case law holding that a situation or relationship warranting removal for cause arises from the fact that a prospective juror, or his or her relative, is a patient of a professional corporation Defendant or a non-party expert witness, or is employed by a non-party expert witness or his practice group.

Judge Minora did indicate that if the prospective jurors were indeed employees of a corporate Defendant or patients of a Defendant’s position, the court would have found merit in the Plaintiffs’ argument. However, those facts are not before the court. As such, the court found that there was no error of any kind during the jury selection process.

Judge Minora ended his opinion by stating that "All parties are entitled to a fair, objective and impartial jury of their peers, but not to a jury of their choosing." [citations omitted].

A copy of Judge Minora's Opinion, which includes his analysis in support of a granting of a new trial on other grounds, can be viewed HERE.

Photo From Pennsylvania Conference of State Trial Judges Presentation on Post-Koken Issues

L. to R.: Scott Cooper, Judge Terrence R. Nealon, Dan Cummins
Here's a photo I secured from the recent presentation on Post-Koken issues at the Pennsylvania Conference of State Trial Judges in Hershey, PA with Scott Cooper of the Harrisburg law firm of Schmidt Kramer and Lackawanna County Judge Terrence R. Nealon.

Post-Koken issues will also be the focus of my presentation at the Tort Talk Expo 2015 set for September 24, 2015 at the Mohegan Sun Casino.  Judge Nealon has agreed to repeat his presentation on jury instructions in Post-Koken matters as well. 

To register to attend the Tort Talk Expo CLE and Cocktail Reception, please go to and click on the Registration Links in the upper right hand corner of the blog.


Thursday, August 6, 2015

No Strict Liability Claims for Medical Products/Devices

In two separate recent Pennsylvania Federal Court decisions, courts have ruled that Pennsylvania law does not allow for strict liability claims against prescription medical products, including medical devices.

In Cogswell v. Wright Medical Technology, 2015 U.S. Dist. Lexis 92461 (W.D. Pa. July 16, 2015 Bissoon, J.), the court granted in part and denied in part a motion to dismiss and held that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices.  The court otherwise noted that strict liability manufacturing defect claims are barred.  Rather, negligence was found to be the only permitted theory.  The court additionally held that express and implied warranty claims were barred. 

In the separate decision of Wilson v. Synthes United States Products, LLC, NO. 2:2015-cv-00295, 2015 U.S. Dist. Lexis 92347 (E.D. Pa. July 15, 2015 Schmehl, J.), the court granted in part and denied in part a motion to dismiss in a products case.  Similar to the Cogswell decision, the court reasoned that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices.  This court also noted that strict liability manufacturing defect claims were barred.  However, the negligence claims were found to be adequately pled.  This court also noted that Pennsylvania does not recognize a claim for negligent marketing, except when the conduct rises to overpromotion.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith and writer of the great Drug and Device Law Blog for bringing these cases to my attention.

The Cogswell decision can be viewed HERE.

The Wilson decision can be viewed HERE.

Monday, August 3, 2015

Tort Talk Expo 2015 Fast Approaching - Please Registering Now To Ensure Your Seat


Thursday, September 24, 2015

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA 

(3 Substantive, 1 Ethics Credit)

Door Prizes - Vendor Giveaways - Raffle Prizes 
[Registration 11:30 am - 12 noon]


12:00 pm - 1:00 pm - "LESSONS FROM FORREST GUMP"


by Daniel E.  Cummins, Esq. FOLEY, COMERFORD & CUMMINS 
Lackawanna County Judge Terrence R. Nealon


1:00 pm - 2:00 pm – CIVIL LITIGATION UPDATE

by Melissa A. Scartelli, Esq. SCARTELLI AND OLSZEWSKI 


BREAK 2:00 pm – 2:15 pm


  2:15 pm - 3:15 pm - MEDICAL HOUR

 Dr. Sheryl Oleski – Low Back Pain Overview



BREAK 3:15 pm – 3:30 pm


 3:30 pm - 4:30 pm - VIEW FROM THE BENCH

Ethical Considerations for Settlement Conferences
and Other Dealings with the Court



Judith Price, Esq.  Dougherty, Leventhal & Price



  Pennsylvania Superior Judge Court Judge Christine Donohue

Luzerne County Judge Lesa Gelb

Lackawanna County Judge Margie Bisignani-Moyle

U.S. Federal Middle District Magistrate Judge Karoline Mehalchick






To Register, visit and click on registration link

or mail check made out to "Tort Talk" and form below to:


Daniel E. Cummins, Esq.

 Foley, Comerford & Cummins

507 Linden Street, Suite 700 
Scranton, PA 18503


Cost: $195 Attorneys; $25 Claims Representatives


NAME: ___________________________________________________


FIRM/COMPANY: _________________________________________

EMAIL: ___________________________________________________
(Alphabetical Order)


Judge Terrence R. Nealon Added to List of Presenters For Tort Talk Expo 2015 (Set for September 24, 2015)

I have added Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas to the list of presenters set for the September 24, 2015 Tort Talk Expo set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Judge Terrence R. Nealon
Judge Nealon will repeat his excellent presentation on "Jury Instructions & Practices in UM and UIM Trials" as part of my initial Auto Law Update presentation in the first hour of the CLE.

Judge Nealon has written two Opinions to date on the issue of proper jury instructions in the Post-Koken era and will cover those decisions as well as review what language other Judges have utilized in jury instructions in these new types of cases.  His decisions, as well as other notable decisions, and jury instruction samples will be included in the written materials.

To register for the Tort Talk Expo 2015, please go to Tort Talk at and view the LINKS in the upper right hand corner of the blog.

Thank you.