Friday, January 29, 2016

Impact of Waivers Executed By Decedent in Wrongful Death Claims Revisited by Superior Court

In its recent decision in the case of Valentino v. Philadelphia Triathlon, LLC, No. 3049 EDA 2013 (Pa. Super. Dec. 30, 2015 Ford Elliot, P.J.E., Olson, and Wecht, JJ.) (Opinion by Ford Elliot, P.J.E.), the Pennsylvania Superior Court addressed issues surrounding waiver or release forms as applied to wrongful death claims.  

This matter arose out an incident during which the Plaintiff’s decedent participated in a triathlon in Philadelphia.  The decedent signed a waiver form when he signed up to participate in the event.

During the event, the decedent never completed the swimming portion of the competition and his body was recovered from the Schuylkill River the day after the incident.  

Wrongful death and survival claims were pursued by the decedent’s widow.   The case was eventually concluded at the trial court level by way of the entry of a summary judgment based upon the waiver executed by the decedent. The Plaintiff’s estate appealed.  

On appeal, the Superior Court reviewed Pennsylvania law with respect to punitive damages claims and found that the trial court properly dismissed such claims at the Preliminary Objections stage given that the Plaintiff had alleged facts supporting claims for ordinary negligence.   Given that there were no facts to support a claim of outrageous behavior or conscious disregard for the risks confronted by triathlon participants, the appellate court ruled that the trial court properly dismissed the Plaintiff’s allegations of outrageous conduct and, therefore, had also properly struck the claim for punitive damages.  

On the waiver/release issue, upon which the trial court had granted summary judgment, it was noted that only the Plaintiff’s decedent had signed a release or waiver form when entering the competition.  

On appeal, the Plaintiffs initially argued, in part, that a Plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, any waiver executed in this case was invalid.  

The Pennsylvania Superior Court noted that, since it had already determined in this matter that the Plaintiff did not state valid claims involving reckless or intentional conduct, the Plaintiff’s contention in this regard could not serve to disturb the trial court’s ruling.  

The Plaintiff also asserted that, pursuant to the prior appellate court decision in the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. Super. 2014), cert. denied, 134 S.Ct. 2890 (2014), a decedent’s waiver is ineffective as to third-party wrongful death claims. 

The appellate court found that the Plaintiff’s argument regarding the Pisano case to be dispositive.  The court determined that the Plaintiff’s widow could maintain a wrongful death cause of action and is not bound by the decedent’s release given that the Plaintiff pursuing the case was not a signatory of that waiver form.  

Similar to the finding in the Pisano case, the court ruled that a waiver form was not binding on the representative of the decedent’s estate as wrongful death claims are not considered to be derivative of the decedent’s rights under Pennsylvania law.   Rather, the right of action belongs to the statutory wrongful death claim claimants, not the decedent.

In the court in this Valentino case went on to note, as explained in the Pisano decision, that, in Pennsylvania, survival and wrongful death actions are separate and distinct and that wrongful death lawsuits are not merely derivative of the rights of the decedent.  

Accordingly, following the Pisano case, the Valentino court concluded that the decedent’s release agreement/waiver form signed when entering the competition did not bind the Plaintiff’s widow/representative of his estate and did not preclude her from bringing a wrongful death action.  

Rather, as confirmed by Pisano, the wrongful death action is an independent cause of action, created by statute, and is not to be considered to be derivative of the decedent’s rights at the time of death.   The release agreement/waiver form was noted to only be between the decedent and the competition and was found to have no effect on the decedent’s non-signatory heirs, including the Plaintiff’s decedent’s widow, who brought this lawsuit.  

As such, the underlying claim was allowed to proceed.
Anyone wishes to review the majority Opinion of Superior Court Judges Ford Elliot and Wecht, may click this LINK.

The dissenting Opinion of Judge Olson can be viewed HERE

 I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.   

Governor Wolf Plans to Fill Appellate Court Vacancies

According to an announcement issued by Governor  Tom Wolf found HERE, the Governor is seeking applicants to fill vacancies on an interim basis on both the Pennsylvania Superior Court and the Commonwealth Court.

Thursday, January 28, 2016

Waiver Form Signed by Plaintiff At Gym Upheld as Support For Summary Judgment

In the case of Hinkal v. Gavin Pardo & Gold’s Gym, Inc., No. 165 MDA 2014, 2016 Pa. Super. 11 (Pa. Super. Jan. 22, 2016) (en banc) (Op. by Stabile, J.), the Pennsylvania Superior Court affirmed a trial court’s entry of summary judgment in favor of the Defendant’s on the basis of a waiver agreement signed by the injured party Plaintiff as part of a membership at Gold’s Gym.

The Court noted that the issue before it was whether the agreements the injured party Plaintiff signed for membership at Gold’s Gym released the Defendants from liability for injuries she sustained while under that direction of a personal trainer at the gym.  

According to the Opinion, the Plaintiff asserted claims against the personal trainer for negligence as well as negligence claims against Gold’s Gym premised on respondeat superior liability.   The Plaintiff alleged a serious neck injury that required two (2) separate surgeries.  

The more specific allegations were that the personal trainer put too much weight on a piece of equipment that injured the Plaintiff and negligently instructed the Plaintiff to continue with the work out without recognizing that the Plaintiff had sustained a serious injury.  

The Pennsylvania Superior Court agreed with the trial court’s decision that the waiver language set forth in the Gold’s Gym Membership Agreement was valid and enforceable.  Accordingly, the entry of summary judgment in favor of the Defendant was affirmed.

Anyone wishing to review a copy of Judge Stabile's Majority decision may click this LINK.

Judge Lazarus's Dissenting Opinion may be viewed HERE.

Source of

Judge Minora of Lackawanna County Reviews Jury Selection Issues

In his recent decision in the case of Yaduouga v. Denis,, No. 2009-CIV-53 (C.P. Lacka. Co. Dec. 10, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed various issues raised by a Plaintiff in a Motion for Post-Trial Relief following a medical malpractice case.

Of note, the Plaintiffs sought a new trial on the grounds that the Plaintiff allegedly suffered presumed prejudice because the Plaintiff was denied the right to individually voir dire jurors who knew the Defendant doctors and/or may have had a situational relationship with one or more of the Defendants.

In his Opinion, Judge Minora noted that, Plaintiff’s counsel inquired whether any of the prospective jurors knew any of the physicians involved, along with follow up questions in terms of whether those prospective jurors who knew a member of the Defendant medical facilities would be able to render a fair and impartial verdict.

According to the Opinion, while counsel for the parties and the court were striking jurors for cause, Plaintiff’s counsel asked the court to be permitted to individually voir dire prospective jurors, specifically the ones who indicated that they knew a member of one of the Defendant medical facilities. In doing so, Plaintiff’s counsel cited the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied 102 A.3d 986 (Pa. 2014). At trial, the court rejected the Plaintiff’s request and a jury was eventually chosen.

The Plaintiff later raised this issue again in post-trial motions, which the court again denied. In so ruling, the court noted that a party’s right to impartial jury does not entitle that party to a jury of his choice. See Op. at 7 citing Com. v. Carson, 913 A.2d 220, 235 (Pa. 2006). Ultimately, the decision on whether or not to disqualify a juror was found to be within the trial court’s sound discretion. Id. [citation omitted].

After reviewing the test for determining whether a prospective juror should be disqualified, the court found that there were no improprieties with regards to the selection of the jury in this matter.

Judge Minora noted that a review of the record indicated that the prospective jurors at issue indicated that they did not know the named Defendant doctors but only indicated that they knew or that they or a family member may have been treated by other non-party members of the Defendant medical practice. Those prospective jurors were questioned on whether or not they could be fair and impartial and indicated that they could.

Judge Minora emphasized that none of the impaneled jurors knew any of the Defendant doctors personally, had worked with them, had been treated by them as patients, or were in any employer-employee relationship with those doctors. As such, the court found that the Plaintiff had failed to establish that any of the jurors at issue had any direct close familial, financial or situational relationship with any of the Defendants. Accordingly, the court again rejected the Plaintiff’s claim of a presumptive prejudice by virtual of possible indirect relationships between the jurors and the Defendants.

Judge Minora also noted that there was no civil mandate or rule of procedure otherwise requiring the court to allow individual voir dire in a medical malpractice case. 

Judge Minora ended his discussion of this issue by reiterating that, while all parties to a trial are entitled to a fair, objective and impartial jury of their peers, no party is entitled to a jury of their own choosing.

Anyone desiring a copy of this decision may click this LINK.

Wednesday, January 27, 2016

Recent Medical Malpractice Decision of Note by Judge Terrence R. Nealon Reviewed in The National Law Review

The Vaccaro v. Scranton Quincy Hospital decision regarding discovery of internal hospital documents in a medical malpractice case issued by Judge Terrence R Nealon of the Lackawanna County Court of Common Pleas which was the subject of a December 17, 2015 post here on the Tort Talk Blog has also been reviewed by The National Law Review.

To review that January 27, 2016 National Law Review article entitled Peer Review Protection Act Does Not Shield All Internal Hospital Documents" written by Michael C. Ksiazek of Stark & Stark click this LINK.

Tuesday, January 26, 2016

Interesting and Helpful Article Regarding Handling of Law Firm's IOLTA Account

Here is a LINK to an interesting and helpful January 21, 2016 article on handling IOLTA accounts entitled "5 Tips for Attorneys to Avoid Suspension" from the Case Funding Blog. 

Lancaster County Decision on Cell Phone/Punitive Damages Pleading Issue

Another Opinion has been uncovered in which a court has found that allegations of cell phone usage alone are insufficient, without more, in a motor vehicle accident case to support a claim for punitive damages. This decision was rendered by Judge Joseph C. Madenspacher back on August 27, 2015 in the case of Ebersole v. Baum, No. CI-15-00026 (C.P. Lanc. Co. Aug. 27, 2015, Madenspacher, J.).

In this matter, the Plaintiff asserted in her Complaint that the Defendant was liable for punitive damages for being inattentive due to alleged cell phone use at the time of the subject motor vehicle accident.

In his Opinion, Judge Madenspacher reviewed the law of Pennsylvania on punitive damages and found that the Plaintiff’s factual allegations did not support a claim that the Defendant acted with a bad motive or reckless indifference as required to support the imposition of punitive damages. As such, the court struck the claim for punitive damages from the Complaint.

Anyone desiring a copy of this decision may contact me at

I send thanks to Attorney Jason McNicholl of the Lancaster, Pennsylvania law firm of Flanagan and DiBernardo, LLP for forwarding this decision to my attention.

Friday, January 22, 2016

Judge Nealon of Lackawanna Addresses Parameters of Discovery of a Defendant Doctor's Opinions in a Med Mal Case

In his recent decision in the case of Karim v. Reedy, No. 2011-CV-4598 (C.P. Lacka. Co. Jan. 11, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues pertaining to the parameters of a deposition of a Defendant doctor and a Defendant hospital’s nurse.  The issues surrounded a Plaintiff's attorney's demand that the witnesses answer certain questions that their counsel instructed them not to answer during the course of their depositions in the medical malpractice matter.  

The deponents contended that their opinions, including those related to the standard of care which govern their conduct, cannot be discovered without their consent, and that, to the extent that any such opinions are subject to discovery, those opinions should be restricted their evaluation of the labor and delivery issues at the time they provided their care, rather than their retrospective or current assessment of those matters.  

These Defendants also asserted that, if they stipulated that they would not address these standard of care issues during the trial testimony, their opinions in that regard could not be discovered.  

Judge Nealon rejected these contentions and ordered the Defendant doctor and nurse to submit to a second deposition to answer the questions presented.  

In so ruling, Judge Nealon wrote in his thorough Opinion that the Pennsylvania Rules of Civil Procedure and controlling precedent generally provided that medical malpractice Plaintiffs are permitted to discover the past and present opinions of a Defendant and a Defendant’s agent concerning the health care treatment at issue.  

The Court also noted that, although a malpractice Defendant’s opinion testimony regarding the negligence of another Defendant may not be introduced at trial without the malpractice Defendant’s consent, that opinion nevertheless remains discoverable.  Judge Nealon further indicated that there was no Pennsylvania law uncovered that granted a party the right to withhold from discovery that party’s relevant opinions. 

Nor did the court find any law to provide support for a malpractice Defendant’s ability to prevent the discovery of those opinions, including opinions addressing the standard of care, by agreeing not to disclose those opinions at trial.  

On another issue, the Court also found that the doctor’s prior depositions in medical malpractice litigation may be discovered in the current case as such depositions may contain medical opinions that are relevant to the doctor’s care in the present case, or may furnish grounds for impeachment.  

I send thanks to Reporter Ben Seal of the Pennsylvania Law Weekly for bringing this case to my attention.

Anyone desiring a copy of this decision may click this LINK.

To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK.  If you cannot access the article via the Link, please let me know and I will email you a copy.

Wednesday, January 20, 2016

Commonwealth Court Affirms Entry of Summary Judgment In Favor of Municipal Defendant Under Hills and Ridges Doctrine and Tort Claims Act

In its recent decision in the case of Moon v. Dauphin County,  PICS Case No. 15-1832 (Pa. Cmwlth. Dec. 10, 2015 Covey, J.), the Pennsylvania Commonwealth Court granted a Defendant County's Motion for Summary Judgment in a slip and fall case.  

According to the Opinion, the Plaintiff resided at the Dauphin County Work Release Center in Harrisburg.  He allegedly sustained injuries as a result of a slip and fall that occurred on February 22, 2008 on the Center’s fenced-in-walkway.  

The record before the Court revealed that, when the Plaintiff entered the Center between 4:00 and 5:00 p.m. on the date in question, it was raining outside.  Within five (5) minutes after hearing that the Center’s activities were cancelled for the night, the Plaintiff left the building and saw that the walkway was wet.  The Plaintiff admitted that he sensed by the sound of pellets hitting the ground, that the rain was changing to ice.  Accordingly, he carefully continued but unfortunately slipped and fell.

The Court granted summary judgment in favor of the Defendant County, in part, under the Hills and Ridges Doctrine after finding that the evidence, and the Plaintiff’s own admissions, established that the Plaintiff’s fall occurred at the start of a weather event that created generally slippery conditions.   There was no evidence that the County had allowed any ice or snow to unreasonably accumulate in ridges or elevations.

The Court also rejected the Plaintiff’s argument that a design flaw abrogated the immunity provided by the Hills and Ridges Doctrine.  

The Commonwealth Court noted that, under §8542(a)(2) and §8542(b) of the Tort Claims Act, a local agency will retain immunity from suit unless the claim also falls within an exception to the Tort Claims Act.  

The Court went on to note that liability will not be imposed under the Real Estate Exception of the Tort Claims Act for injuries sustained as a result of a county’s alleged failure to remove a foreign substance from the real property, including ice and/or snow.   Rather, the Court could only be liable under that exception if the snow or ice on the real property resulted from a design or construction defect.  

The Plaintiff argued in this matter that the alleged improper construction defect at issue was that there in only a single exit from the Center leaving the Plaintiff with no alternative but to pass through a gate and into the icy and slippery conditions.   The Court noted that the Plaintiff admitted, however, that the walkway itself was not defective.   

Given that the law requires proof of a defect of the walkway upon which the Plaintiff fell, the Court entered summary judgment for this reason as well.   The Court found that the Plaintiff’s claim that the Center’s single exit constituted a dangerous condition of the real estate was devoid of merit.  

Accordingly, the trial court’s entry of summary judgment was affirmed.  

Anyone wishing to review the Commonwealth Court's decision in Moon may click this LINK.

Pennsylvania Superior Court Addresses Exception to Hills and Ridges Doctrine

In its recent non-precedential Memorandum Opinion in the case of Magaskie v. WaWa, Inc., PICS Case No. 15-1877 (Pa. Super. Dec. 10, 2015 Gantman, J.)(mem. op.), the Pennsylvania Superior Court affirmed the entry of summary judgment under the Hills and Ridges Doctrine.  

The Plaintiff alleged that he slipped and fell on a patch of ice in the parking lot of the WaWa store.   The jury returned a defense verdict at trial after finding that the Defendant was not liable for the Plaintiff’s slip and fall.  

On appeal, the Plaintiff asserted that the trial court erred in failing to give an “isolated patch of ice” exception instruction to the Hills and Ridges Doctrine.   The other error complained on appeal did not pertain to the Hills and Ridges issue. 

The Superior Court affirmed the trial court’s ruling that the Plaintiffs were not entitled to an instruction for the “isolated patch of ice” exception as the mere existence of a harmful condition in a public place of business was not per se evidence of a breach of the landowner’s duty of care owed to invitees and did not otherwise raise a presumption of negligence.  

Under the Hills and Ridges Doctrine, the Court also found that, because a snow storm had hit the area several hours prior to the slip and fall, the community was experiencing generally slippery conditions.   Also, there is no evidence presented or witnesses to testify as to the existence of any patches of ice such that an instruction for the isolated patch of ice exception was not appropriate.  

In other words, the Court found that the occurrence of a snow storm several hours prior to the Plaintiff’s slip and fall created generally slippery conditions in the community that negated the application of the isolated patch of ice exception to the Hills and Ridges Doctrine. 

The Court also found that, in any event, the Plaintiff failed to establish that the landowner had any actual constructive notice of the ice. 

If you wish to review this unpublished non-precedential memorandum opinion in Magaskie, please click this LINK.

Although non-precedential, perhaps this case can serve to kickstart your research in a Hills and Ridges Case where there is a claim that the isolated patch of ice exception applies.

Monday, January 18, 2016

Post-Koken Severance and Stay of Bad Faith Claim Decision Out of Philadelphia

In a January 7, 2016 Order without Opinion in the case of Arabatlian v. American Southern Insurance Company¸ Feb. term, 2015, No. 3325, Commerce Program, Control No: 15112981 (C.P. Phila. Co. Jan. 6, 2016 McInerney, J.), Judge McInerney of the Philadelphia Court of Common Pleas granted a Defendant carrier’s Motion to Sever the Plaintiff’s bad faith claim from the breach of contract and further ordered that the Plaintiffs’ claim for bad faith was stayed pending resolution of the Plaintiffs’ claim for breach of contract.    

Anyone desiring a copy of this decision may contact me at 
I send thanks to Attorney Robert Cahall from the Wilmington, Delaware office of McCormick & Priore, P.C. for providing me with a copy of this decision.  

Thursday, January 14, 2016

Judge Minora of Lackawanna County Addresses Bad Faith Discovery and Severance Requests in a Non-Post-Koken Case

In the case of Custom Designs and Manufacturing Company, Inc. v. Atlantic States Insurance Company, No. 2006-CV-2790 (C.P. Lacka. Co. Dec. 4, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion for a Protective Order and granted in part and denied in part a Defendant’s Motion to Sever and Stay the Plaintiff’s Bad Faith Claim.

This matter arose out of a fire loss. The Plaintiff’s factory was destroyed during a fire that occurred in November of 2002. At the time of the loss, the Plaintiff carried an insurance policy with the Defendant carrier.

The Plaintiff filed a bad faith and breach of contract litigation against the carrier relative to the handling of the claim. During the course of that litigation, the Defendant carrier filed the Motion for Protective Order and Motion to Sever and Stay Plaintiff’s Bad Faith Claim.

In support of their motion, the Defendants asserted that the Plaintiffs were seeking nondiscoverable information and further argued that allowing the Plaintiffs to proceed with their bad faith claim at this early stage of the litigation would prevent and impede the expeditious and judicially and economical conclusion of the entire case as engaging in discovery on both the breach of contract claim and the bad faith claim would unnecessarily delay adjudication of the underlying contractual claim. The Defendants more specifically argued that allowing the combined discovery efforts would result in a large volume of time consuming objections and motions practice, much to the detriment of the concerns of judicial economy and efficiency. As such, the defense requested that the Plaintiff’s bad faith claim be severed and stayed pending the resolution of the breach of contract claim.

After conducting a thorough review of the applicable Rules of Civil Procedure, and in particular, Rules 4011 and 4012, the court found that the Defendants were not entitled to the requested protective order. 

Judge Carmen D. Minora
Lackawanna County
n this regard, Judge Minora found that the Defendants failed to show that the scope of the Plaintiff’s bad faith discovery requested information or documents protected by the attorney-client privilege or the attorney work product doctrine. The court also found that the defense failed to show how responding to the Plaintiff’s discovery requests would cause them unreasonable burden or expense. 

Accordingly, the Defendant’s Motion for Protective Order was denied without prejudice to the defense right to revisit this issue in the event that the Plaintiff did not conduct discovery in a legally responsible manner.

On the request for a severance and stay of the bad faith claim, Judge Minora noted that he had the power and discretion to grant this request under Pa. R.C.P. 213, if appropriate. Relying, in part, on the Monroe Court of Common Pleas decision in the Post-Koken case of Hakim v. Erie Insurance Exchange, 6241-CV-2013 (C.P. Monroe Co. 2015 Williamson, J.), Judge Minora found that the Defendants may be prejudiced by allowing the bad faith claim to be joined with the breach of contract claim during the course of a trial.  The court found that there may be information relevant to the bad faith claim that was not relevant to the breach of contract claim and which may prejudice the Defendants in the eyes of the jury and/or may possibly confuse the jury in its efforts to reach a verdict.

In balancing all of the issues presented, including the issues of judicial economy and possible prejudice to the Defendants, Judge Minora exercised his broad discretion and granted the Defendant’s Motion to Sever the Bad Faith Claim pending the resolution of the Plaintiff’s breach of contract claim.

However, Judge Minora refused to stay discovery on the bad faith claim as doing so would cause an unnecessary delay of the matter. The court also found that there are more efficient measures to protect the Defendants from prejudice as opposed to ordering a "blanket freeze" on all discovery with respect to the bad faith claims.

Anyone wishing to review this decision may click this LINK.

Tuesday, January 12, 2016

Judge Polachek-Gartley of Luzerne County Denies UIM Carrier's Preliminary Objections in Post-Koken Case Involving an Alleged DUI Tortfeasor Defendant

In a recent Order without Opinion in the case of Baldinucci v. Purcell and State Farm Mut. Auto. Ins. Co., No. 2015-Civil-7972 (C.P. Luz. Co. Dec. 18, 2015 Polachek-Gartley, J.), Judge Tina Polachek-Gartley of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by the UIM carrier Defendant asserting a misjoinder of the Plaintiff’s tort and UIM breach of contract claims in a case where the tortfeasor Defendant driver was alleged to have been driving under the influence at the time of the accident.  

Anyone desiring a copy of this Order without Opinion may email me at

I send thanks to the prevailing Plaintiff’s attorney, Michael A. O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of this Order.  

Monday, January 11, 2016

Plaintiff's Treating Doctors May Also Be Subjected to Cooper Interrogatories

In a notable detailed Order dated January 6, 2016 in the case of Mina v. Hua Mei, Inc., No. 2012 - CV - 7781 (C.P. Lacka. Co. Jan. 6, 2016 Mazzoni, J.), Judge Robert A. Mazzoni ruled that a Plaintiff's treating physician was required to respond to Cooper Interrogatories designed to seek discovery of financial bias information from that doctor. 

In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises.  Following the accident, the Plaintiff was treated, in part, by a physatrist. 

During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.

The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation.  Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.

Judge Robert A. Mazzoni
Lackawanna County
After reviewing Pa.R.C.P. 4003.5 and the relevant case law, Judge Mazzoni ordered the Plaintiff to respond to the Interrogatories.  The court noted that the issue of whether or not a doctor's opinions were acquired or developed in anticipation of litigation or for trial was a case-by-case determination and that the fact that the doctor was a treating physician, in and of itself, was not conclusive and did not end the inquiry.

In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors.  It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency.  This request, and the report, were written about a year before the litigation began.

Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.

What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality.  The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion.  See Op. at p. 5.

Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."

As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome.  The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.

Anyone wishing to review this decision may click this LINK.

To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK.  If you cannot access the article via the Link, please let me know and I will email you a copy.

I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.

Thursday, January 7, 2016

Superior Court Affirms Denial of Post-Trial Motions by Defense in Products Liability Case

Tort Talkers may recall that, in what may be one of the first trial court opinions to apply the new products liability analysis enunciated in the Pennsylvania Supreme Court decision in Tincher v. Omega Flex, Lackawanna County Court of Common Pleas Judge James A. Gibbons rejected a Defendant's Motion for a New Trial and/or a Judgment Notwithstanding the Verdict in the case of Cancelleri v. Ford Motor Co., No. 2011-CV-6060 (C.P. Lacka. Co. Jan. 9, 2015 Gibbons, J.).

Judge James A. Gibbons
Lackawanna County
The Cancelleri case involved claims that the airbag/restraint system in the Plaintiff's vehicle was defectively designed in that the driver's side airbag failed to deploy in the subject car accident. 

Ford primarily argued that it was entitled to a Judgment NOV because there was not enough evidence to sustain the Plaintiff's claims pertaining to crashworthiness and malfunction theories.  In addition to a myriad of other issues raised, the defense also asserted that the court failed to apply the Restatement (Third) of Torts analysis for products liability matters in Pennsylvania.

The Pennsylvania Supreme Court, in prior Opinion in Tincher, had rejected the Restatement (Third) analysis and advocated a continued use of the Restatement (Second) of Torts standard. 

After a $5.9 million dollar verdict was handed down by the jury in favor of the Plaintiff, the defense filed the post-trial motions at issue.  As noted, Judge Gibbons relied upon the Tincher decision in denying the Defendant's post-trial motions.

UPDATE:  In a January 7, 2016 "Non-precedential" Opinion in the same case of Cancelleri v. Ford Motor Co., No. 267 MDA 2015 (Pa.Super. Jan. 7, 2016 Panella, J., Lazarus, J. and Platt, J.)(mem. op. by Lazarus, J.), the Pennsylvania Superior Court affirmed the Judge Gibbons' trial court decision and, in doing so, noted the Tincher mandate that the Restatement (Second) of Torts be applied in products cases.

As this case was listed as a non-precedential decision, a detailed summary of the same is not provided.  However, if you wish to read the Opinion, you may click this LINK.

It now remains to be seen whether this case will proceed up to the Pennsylvania Supreme Court to allow that Court, and its three new Justices, to revisit the debate on whether the Restatement (Second) of Torts or the Restatement (Third) of Torts should be applied in Pennsylvania Products Liability matters.

FURTHER UPDATE:  This case settled after the Superior Court's decision and prior to any effort to take it up the Pennsylvania Supreme Court.

I send thanks to Attorney Bruce Zero of the Scranton law firm of Powell Law for bringing this decision to my attention.

Wednesday, January 6, 2016

Judge Mannion of Federal Middle District Addresses Products Liability Issues

In his recent decision in the case of Dorshimer v. Zonar Systems, Inc., No. 3-13-0553 (M.D. Pa. Nov. 18, 2015 Mannion, J.), Judge Malachy E. Mannion granted in part and denied in part a summary judgment motion in a products liability matter.  

The product at issue was a handheld device used by bus drivers to complete pre-trip and post-trip inspections of the bus.  The Plaintiff, a school bus driver, fell and was alleged injured when she attempted to reach for the device which was mounted to the inside of the bus at a location over and above the entrance steps near to the bus.

The court generally noted that a product is defective when it is unsafe for its intended use.  The also court noted that a manufacturer has a nondelegable duty to make products that are free from any defective conditions unreasonably dangerous to the consumer.    

Relative to the Plaintiff’s strict liability design defect claim, Judge Mannion found that this claim failed for lack of evidence that the design of either the product or its mounts were unreasonably dangerous.  The court noted that the Plaintiff was not injured by the product itself, but rather, fell trying to reach the product, which had been installed in a place that was difficult to reach.  The court found no evidence in the record that anything about the product itself was unreasonably dangerous or that it had to be placed in a particular location.  

Moreover, the court found that the Plaintiff offered no alternative design theory.  Accordingly, absent evidence that a product’s design was not reasonably safe, the court found that a strict liability claim for a design defect failed in this matter.

On the Plaintiff’s claims of inadequate warnings, the court generally noted that inadequate warnings could render a product unreasonably dangerous.   Whether or not a warning is adequate is evaluated, in part, on the basis of whether a better warning would have prevented an injury. 

Here Judge Mannion found that the Plaintiff’s warning claim failed for lack of causation.   The record revealed that the Plaintiff was an experienced user of the product and was well aware of its relatively inaccessible location.   As the Plaintiff had worked with this particular product for more than two (2) years leading up to the incident, the court found that the risk posed by the location of the product was obvious to the Plaintiff.  Accordingly, no warning was required under the law. 
Judge Malachy E. Mannion
Federal Middle District Court

The court also ruled that awareness of the risk presented rebuts any heeding presumption allowed in products liability law.  

Judge Mannion also found that, under the Tincher case, negligence forms an additional basis for liability separate and apart from a strict liablity claim.   Here, the court found that the Plaintiff presented sufficient facts to support a negligence claim for failure to adequately claim the Plaintiff’s employer’s product installers.  

Anyone wishing to review this Dorshimer decision by Judge Mannion may click this LINK

I thank Attorney James M. Beck of the Philadelphia office of Reid Smith for bringing this case to my attention. 

Tuesday, January 5, 2016

Civil Court Judicial Assignments Announced for Lackawanna Court of Common Pleas

The Lackawanna County Court of Common Pleas
Scranton, PA

According to a January 5, 2016 article by David Singleton in the Scranton Times-Tribune entitled "Jarbola Sworn in as Lackawanna County Judge" regarding Judge Andy Jarbola taking the bench, President Judge Michael Barasse also announced judicial assignments to the Civil Division of the same court.

According to the article, Judge Terrence R. Nealon will serve as Administrator of the Civil Division, with Judge Margie Bisignani-Moyle and Judge James A. Gibbons sharing the civil litigation workload.

While the article did not reference the following, on information and belief, now Senior Judge Carmen D. Minora will preside over the Discovery Motions court and may possibly assist with other civil matters.  Senior Judge Robert A. Mazzoni will also assist with the civil docket caseload.

Monday, January 4, 2016

UM/UIM Sign Down Form Upheld in Recent Federal Middle District Court Case

Federal Middle District Judge John E. Jones III recently ruled on the validity of UM/UIM sign down forms in the case of Kidd v. State Farm Mut. Auto. Ins. Co., No. 1:13-cv-2625 (M.D. Pa. Dec. 29, 2015 Jones, J.).

In this case the injured insured was, at one point, an insured under parent's State Farm policy.  Sign down forms were executed for the parent's policy for reduced UM/UIM coverage.

When the injured insured reached the age of majority, a decision was made by all involved that the injured insured would secure his own separate State Farm automobile insurance policy.  In the sign down forms utilized for this new coverage executed in 1998, a reference to the parent's policy number on the document was stricken and the policy number for the new, separate policy was inserted.

Later, the injured insured son purchased another vehicle and added it to his policy.  He also added his fiancĂ© to that policy.  No new sign-down forms were executed.

About eight years thereafter, the injured insured son was injured in an accident.  In following litigation, he sought higher UM/UIM limits under the policy which gave rise to this litigation.

Judge John E. Jones, III
M.D. Pa.
After a bench trial, the court ruled in favor of State Farm on the sign-down issues presented and found that, based upon the record before the court, a valid selection for reduced UM/UIM coverage in writing was effectuated in the 1998 documentation.  Plaintiff's arguments asserting that the sign-down forms created an ambiguity or that there was foul-play with the alteration of the policy number on the sign-down forms were rejected.  The court noted, in part, that the insured had paid reduced premiums for reduced coverage for years without complaint.

To review the court's Opinion in Kidd, including additional rationale not summarized here, click this LINK.

I send thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers McDonnell for forwarding this decision to my attention.