Tuesday, March 31, 2015
The court ruled that once the standardized testing portion of the neuropsych IME began, no one other than the doctor and the Plaintiff would be allowed in the room and no recording device would be permitted in the room.
The court also ruled that, once the IME was completed, the Plaintiff's attorney would be entitled to a copy of the standardized testing that was completed.
Anyone desiring a copy of this Order may click this LINK
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.
For other neuropsychological IME decisions summarized on Tort Talk, click HERE and HERE.
Monday, March 30, 2015
In the medical malpractice case of Brady v. Urbas, No. 74 MAP 2014 (Pa. March 25, 2015)(Op. by Saylor, C.J.), the Pennsylvania Supreme Court ruled that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.
In other words, the Court ruled that evidence of informed consent is irrelevant in a medical malpractice case in which there is no allegations presented specifically with respect to informed consent.
The rationale is that the simple fact that a patient was aware of the risks of the treatment prior to agreeing to undergo the same is not a defense against a medical provider's allegedly negligent conduct.
This case can be read online HERE.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.
Friday, March 27, 2015
According to information secured on the case, the Plaintiff, as a business invitee,was walking on the sidewalk in the Abington Professional Plaza center in Clarks Summit, Pennsylvania, and was intending on entering a medical lab located in the plaza for a medical procedure.
The Plaintiff averred that the Defendant was allegedly admittedly aware of the condition over the several months leading up to the accident but nevertheless allowed the condition to remain while allegedly waiting for better weather to fix the condition.
On appeal, the Superior Court noted that the medical evidence presented by the Plaintiff contained references to expert testimony from the Plaintiff's side that the Plaintiff sustained a lumbar spine disc herniation as a result of the subject accident that not only impaired the Plaintiff in his every day activities but also made the Plaintiff more susceptible to the work injury he sustained three months after the accident. The Plaintiff's evidence also included references to neck and mid-back injuries, pain, and residual limitations.
The court also noted that while the Plaintiff, who was in his mid-twenties, admitted that he did not feel pain on the date of the accident, he quickly developed low back pain in the days that followed the accident. When the pain allegedly became severe, the Plaintiff sought out treatment. The Plaintiff advised that he stopped treating approximately four months after the accident after being allegedly advised by his medical providers that his injuries could not be fixed.
The record before the court also confirmed that with regards to substantial impairments, the Plaintiff had testified at trial that he had difficulty playing with his young daughter and that he could no longer run or jump, as compared to prior to the accident when the Plaintiff enjoyed bowling, playing basketball, and ice skating.
As noted, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's request for a new trial.
The Majority Opinion in Brown v. Trinidad can be viewed HERE.
For other recent Limited Tort decisions of note from around the Commonwealth, click this LINK.
Tuesday, March 24, 2015
Link To Philadelphia County Court of Common Pleas Sanction Opinion Re: Violation of a Preclusion of Evidence Order for Trial
The issue before the court was whether or not the Plaintiff was entitled to summary judgment under the negligence per se doctrine given the Defendant’s alleged failure to annually inspect the smoke detectors at the Mill Rift Inn in violation of Pennsylvania Code Provisions.
After reviewing the record before the court, Judge Kameen found that the Plaintiff had established that the Defendant’s violation of the applicable law was sufficient to trigger the doctrine of negligence per se. In his opinion, Judge Kameen set forth the law pertaining to his doctrine and the four (4) elements that a party must meet to establish the application of the negligence per se doctrine.
|Judge Joseph F. Kameen|
With regards to the Defendant’s Motion for Summary Judgment which argued, in part, that the Plaintiff was ever a tenant at the Mill Rift Inn, Judge Kameen found that the record established that an oral agreement existed that was sufficient to create a landlord/tenant relationship under Pennsylvania law. The court found that the verbal agreement with regards to the Plaintiff living in the apartment was sufficient to establish the existence of a month-to-month rental agreement between the parties under Pennsylvania law.
The court also denied the Defendant’s Motion for Summary Judgment based upon its status as a landlord out of possession.
First of all, the court noted that there were no support for this argument by the Defendant with respect to the control of the “hard wired” electrical systems on the premises such that the landlord could be considered a landlord out of possession.
Judge Kameen also noted that, even if the court found that the Defendant was a landlord out of possession, the reserved control exception of the general rule that landlords out of possession are protected from liability was found to apply where the hardwired items such as the smoke detectors were not serviceable by the tenants who lack lawful excess to the main electrical lines in the building. The court also noted that the Plaintiff had no right of access to the basement where the fuse boxes were located.
Accordingly, there were no reasonable expectation that the decedent would have been able to repair the smoke detectors in her apartment. As such, the Defendant’s Motion for Summary Judgment in this regard was denied.
Judge Kameen did grant the Defendant’s Motion for Summary Judgment on the Plaintiff’s allegations of a breach of implied warranty of habitability as there was no evidence to show that the tenant gave notice to the landlord of any alleged defect or condition such that the landlord had a reasonable opportunity to make the necessary repairs prior to the incident. Here, there was no evidence that the tenant notified the Defendant of any defects at issue in this case, including the allegedly non-functional smoke detectors. As such, this claim was stricken under the summary judgment standard.
I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, Pennsylvania for providing me with a copy of this Opinion in the case in which he is the Plaintiff’s counsel.
Anyone desiring a copy of this may email me at email@example.com.
More specifically, State Farm sought a dismissal of a Count of Breach of the Duty of Good Faith and Fair Dealing, a Count for Breach of Contract, a Count of Negligence, and a Count of Vicarious Liability, all asserted against the Uninsured Motorist (UM) Benefits carrier.
According to the Opinion, this matter arose out of personal injuries allegedly sustained as a result of a motor vehicle accident involving an uninsured vehicle. Following the accident, the Plaintiff submitted a claim for uninsured motorist benefits.
Prior to retaining any attorney, the Plaintiff attended an independent medical examination at the request of the carrier and, thereafter, attempted to settle the claim for a period of seven (7) months. When the settlement discussions failed to be successful, the Plaintiff retained counsel.
Plaintiffs’ retained counsel made a demand of the $100,000.00 UM limits, and supplied State Farm with additional documentation in support of the claims presented. Defendant, State Farm responded with a $30,000.00 offer.
The Plaintiff proceeded to file suit alleging that the offer presented by State Farm was unreasonable and inconsistent with the documentation provided by the Plaintiff in terms of medical treatment and wage loss information.
With respect to the Defendant’s motion for the dismissal of the Plaintiff’s allegations of a violation of a contractual duty to observe the covenant of good faith and fair dealing, the court noted that the Pennsylvania Supreme Court has held that “there is no cause of action for a breach of the implied duty of good faith and fair dealing in a case for first party insurance benefits, like this one, where an insured is suing his insurer." See Cicon at p. 5-6 citing D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 507-10 (1981). As such, this claim was dismissed by the court.
|Judge Richard P. Conaboy|
Federal Middle District
Judge Conaboy went on to dismiss Count 6 of the Complaint which sounded in Negligence and was based upon an allegation that the Defendant, State Farm, owed a duty of care to the Plaintiff, failed to discharge that duty, and was allegedly therefore liable in tort.
In this regard, the court accepted the defense argument that the “gist of the action” doctrine operated to preclude the Plaintiffs’ negligence count as an improper attempt to characterize an ordinary breach of contract claim as a tort action. The court ruled in this fashion despite recognizing the Plaintiffs’ argument that the Supreme Court of Pennsylvania have never adopted the gist of the action doctrine in an insurance coverage dispute context.
However, Judge Conaboy felt that, after his review of the Superior Court case law, that the Pennsylvania Supreme Court would rule that the Plaintiff’s negligence count should be barred by the gist of the actions doctrine under the circumstances presented if that Court was ever faced with the issue.
Judge Conaboy also agreed that the Plaintiffs’ allegations of vicarious liability on the part of the Defendant State Farm, based upon the alleged negligent and intentional misconduct of its adjusters, supervisors, and defense counsel, should be dismissed.
In so ruling, the court noted that the only party in this case was the Defendant and that, as such, the party Defendant could not be vicariously liable for its own conduct. Judge Conaboy additionally noted that vicarious liability is a creature of tort law, which caused him to reiterate his finding that the gist of the action doctrine required that this case be determined under contract law concepts and not tort law principles.
Overall, the court granted the Defendant’s Motion to Dismiss in part and denied it in part.
Judge Conaboy’s Opinion can be read as supporting an argument by a Defendant carrier that the sole cause of action in a first party case for an alleged breach of good faith is pursuant to 42 Pa. C.S. §8371. This decision also arguably stands for the proposition that there is no common law cause of action for a breach of the duty of good faith and fair dealing, with its attendant consequential damages, in a first party case.
Monday, March 23, 2015
Extent to Which Expert Witness May be Cross-Examined for Bias Circumscribed by Pennsylvania Superior Court
In Flenke v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015 Stabile, Bowes, Ott J.J.)(Op. by Stabile, J.), the Pennsylvania Superior Court ruled that, while e expert witnesses may be impeached for bias, including frequent work for the same side in litigation, including for insurance carriers, there are limits to such cross-examination.
This case arose out of a motor vehicle accident. The specific evidentiary issues in this matter centered around the Plaintiff's cross-examination of the defense medical expert.
Under the well-established rule of law that holds that a witness cannot be cross-examined on collateral matters, see J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa.Super. 2004), the court in Flenke noted that even bias evidence can become too intrusive and collateral.
In this matter, as is becoming more and more frequent in civil litigation matters ever since the Cooper v. Schoffstall and Feldman v. Ide decisions set down the parameters for gathering discovery on an expert's litigation-related activity and compensation, the jury heard, and plaintiff hammered home during closing argument, the income and litigation-activity bias evidence concerning the defendant’s expert.
The Superior Court also ruled that evidence of the expert’s work for defendant’s "insurance company" was properly excluded as it would have introduced the impermissible topic of insurance into the case.
In the end, the Superior Court affirmed the trial court's denial of the Plaintiff's request for a new trial.
Anyone wishing to review this notable opinion pertaining to the cross-examination of experts at trial on the issue of bias may click this LINK.
I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention. I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.
Friday, March 20, 2015
Judge Kosik of PA Federal Middle District Court Addresses Interplay Between Future Medical Expenses Claim and Medicare
Wednesday, March 18, 2015
According to the Opinion, this matter involved a motor vehicle accident during which each party claimed that the other driver crossed the centerline resulting in the fatal accident. Accident reconstruction experts offered by each party came to opposite conclusions.
The Defendant filed a Motion In Limine to preclude evidence that the Defendant driver had a BAC of .257 at the time of the accident as confirmed by an autopsy report, testimony that the Defendant had been drinking prior to driving that day, and evidence that there was beer in the Defendant’s vehicle at the time of the accident. The Defendant contended that the BAC evidence was inadmissible absent proof of intoxication.
Judge Anderson noted that, while the court agreed with the principle argument presented by the defense, the court found that the defense argument did not apply as there was indeed proof of intoxication in the record.
For example, in the autopsy report, an expert forensic pathologist concluded that the Defendant was “markedly” intoxicated at the time of the accident. In a supplemental report, the pathologist reiterated this opinion of intoxication and noted the mental effects that would result from such intoxication.
Accordingly, the court found that the evidence of intoxication presented was more than sufficient to support the evidence of consumption of alcohol which the defense sought to preclude.
The Defendant filed an additional motion preclude the supplemental report of the forensic pathologist on the basis that it was submitted outside the discovery deadline and given that the opinion of the expert was allegedly beyond the scope of that pathologist’s expertise.
The court confirmed that, with respect to the latter portion of this argument, the Plaintiffs had agreed not to use the objected to portion of the report which was allegedly outside the scope of the expert’s expertise.
With regard to the timeliness of the report, the court noted that the Plaintiff submitted a supplemental report of the pathologist in response to the Defendant’s Motion In Limine to exclude evidence of alcohol consumption. Given that the supplemental report only addressed the issue of intoxication and further explained the statements made by the pathologist in his first report, Judge Anderson felt that it was not necessary to exclude the report on the basis of timing. The court opined that the Defendant had enough notice with the first report as to the pathologist’s opinion on the issue of intoxication such that the defense had sufficient time to seek a contrary opinion if they wished.
Overall, the defense Motions In Limine were denied.
Tuesday, March 17, 2015
Here is a LINK to my March 10, 2008 article from the Pennsylvania Law Weekly entitled "A St. Patrick's Day Parade of Proverbs" in which I take well-known Irish Proverbs and apply them to the practice of law. I hope you enjoy the article.
Monday, March 16, 2015
I know it's early, but calendars fill up fast -- hoping you can please Save the Date of Thursday, September 24, 2015 for the Tort Talk Expo 2015 CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania. The event will run from 12:30 pm to 4:30 pm and will be followed by a complimentary reception.
As in years past, there will be an Auto Law/UIM/Post-Koken Update, a Civil Litigation Update, a Doctor's hour, and a View from the Bench Hour.
More details, Registration Info, and Booking a Hotel Room Info to follow shortly. Information on Sponsorship opportunities also to follow.
Thanks very much.
Friday, March 13, 2015
After reviewing the case before him, Judge Gray granted summary judgment in favor of a tenant Defendant in a parking lot slip and fall case.
|Judge Richard Gray|
Judge Gray further indicated in his decision that the landlord’s liability was not precluded by the Hills and Ridges Doctrine. In this regard, the Plaintiff provided evidence that it was sunny on the day of her fall and that there had been no precipitation for the 34 hours leading up to the incident. The Plaintiff additionally established that she fell on a distinct patch of ice, as opposed to generally slippery conditions in the community. Accordingly, Judge Gray found that the Hills and Ridges Doctrine did not apply.
Anyone wishing to review this decision may click this LINK.
I send thanks to Attorney Anthony J. Gabriel of the Harrisburg, PA office of Thomas, Thomas & Hafer as well as Attorney Jaime S. Bumbarger of the State College, PA law firm of McQuaide Blasko, Inc. for providing me with a copy of the same.
Thursday, March 12, 2015
The Pennsylvania Supreme Court has issued two recent notable Rule changes.
Pa.R.C.P. 229 Discontinuance
Relative to Pa.R.C.P. 229, the Pennsylvania Supreme Court has amended the Rule to specifically state that, whenever a Discontinuance is sought to be entered as to less than all of the Defendants, the Discontinuance can be entered with the consent of all parties or, if that total consent is not forthcoming, a motion can be filed by the Plaintiff or the Defendant whom the Plaintiff has agreed to dismiss. Previously the Rule was silent as to who could file such a motion.
Here are Links to the Amended Rule and the Explanatory Note:
March 20, 2015
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Swartz Campbell LLC
Assessments Under Section 306 (b)
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Michael J. Smychynsky Consulting LLC
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Claim From All The Parties’ Perspective
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Mary Kugler, Sr. Workers’ Compensation Adjuster
Erie Insurance Group
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Peters & Wasilefski
Guide to the UR Process
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Wednesday, March 11, 2015
Harris Bock and the DRI will be putting on their excellent 17th Annual Personal Injury Potpourri on Tuesday, April 14, 2015 from 9:15 am to 5:00 pm at the Pennsylvania Convention Center in Philadelphia, PA.
For more information on the event, as well as access to a Registration Form, please click this LINK.
Tuesday, March 10, 2015
By way of background, this case involved a slip and fall on the Defendant's premises. During the course of discovery, the Plaintiff filed a motion to compel the Defendant to allow entry on the property for a site inspection. The defense responded that it had no objection to a site inspection but required that those entering the premises would be required to sign in and present valid photo identification. The defense also requested copies of all photos and videos taken on the date of the inspection.
The Plaintiff argued that, under the applicable Rules, the Plaintiff was not required to disclose the identity of various individuals that would be participating in the site inspection as such disclosures would permit the Defendants to learn the Plaintiff’s trial strategy, including but not limited to, the identity of potential experts, which would allegedly be prejudicial to the Plaintiff’s case.
|Judge Robert A. Mazzoni|
Judge Mazzoni noted that the defense presented evidence that its sign in and photo I.D. requirement had long been in place and was not specific to this case.
The court additionally reviewed the applicable law under Pa.R.C.P. 4003.5 pertaining to "Discovery of Expert Testimony. Trial Preparation Material."
While the court agreed that, under that Rule, disclosure of the opinions of experts that a party retained but did not intend to present at trial was protected, the Rule is silent on the issue of the mere "identification" of such experts. Judge Mazzoni went on to note that he did not see how the identification of experts in this regard would compromise the trial strategy of a Plaintiff in a slip and fall case. No opinions would be disclosed with such information. The court also noted that the Defendant had bona fide reasons behind its policy of generally requiring those entering the premises to sign in and identify themselves.
Judge Mazzoni also found the Plaintiff's reliance upon the work product doctrine to be misplaced with respect to the assertion that Plaintiff need not turn over photos or videos generated during the site inspection. The court noted that no attorney mental impressions, conclusions, or opinions would be disclosed by way of the production of such photos or videos.
As stated, Plaintiff’s appeal of the Special Discovery Master’s Order was denied.
Friday, March 6, 2015
Here's a LINK to an article of mine entitled "The Lessons of Forrest Gump" that was published in the current edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.
The article takes life lessons and quips from a favorite movie and applies them to the practice of law in a manner that I hope you will find to be an enjoyable read.
I am grateful to the Editors Geoff Yuda and Don Sarvey for agreeing to publish the article and I thank them and their staff for the great layout that they created for the article in the magazine.
Monday, March 2, 2015
Before the court were insurance application documents concerning an underinsured motorist claim (UIM) and the applicability of a rejection of stacking form signed when the policy was first purchased in 1998. The UIM limits under the policy were $100,000 per person. The stacking issue was important as there were three vehicles on the policy.
The Plaintiff asserted that, since there was only a rejection of stacking form signed at the inception of the policy, then stacking should apply because the policy numbers were different every time the policy was renewed. According to the Plaintiff's argument, this represented the creation of a new policy, which, in turn, arguably required the need for the carrier to obtain a new rejection of stacking form.
The insurance company argued that the last numbers were only changed but that the policy remained the same.
Judge Conaboy agreed with the defense position that, under the Sackett line of cases, once a valid rejection of stacking form was secured, the carrier need not secure a rejection of stacking form every time the same policy came up for a renewal or when a car was added to the policy.
According to the Opinion, however, the carrier never explained in its argument why the suffixes were different or why the company periodically modified the final number on the policy. In other words, the court was unable to state, as a matter of law, that there were not any substantive differences in the policy over the course of the 21 renewals in 10 years. Simply put, based upon the record before the court, Judge Conaboy could not state that the policy at issue was identical to the one originally issued at the inception of the policy back in 1998 when the rejection form was signed.
As such, the Connolly court ultimately held that.“[d]ue to uncertainty in the record, the Court must deny the Defendant’s Motion for Summary Judgment.”
Judge Conaboy also allowed the Plaintiff's bad faith claim to proceed.
Anyone wishing to read Judge Conaboy's Memorandum Opinion in Connolly v. Progressive may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this case to my attention.