Wednesday, March 30, 2016

Law Applicable to Chain Reaction Car Accidents Reviewed

In the motor vehicle accident case of Jaurez v. Friess, No. 13-145 (W.D. Pa. Feb. 3, 2016 Conti, J.), the West District Federal Court denied summary judgment in a chain reaction motor vehicle accident case. 

In so ruling, the court reviewed the law pertaining to joint tortfeasors as well as the law of causation. 

Applying the law to the case before it, the court in Jaurez stated that, in a multi-vehicle collision, liability can still potentially be found on all involved, including with respect to vehicles that did not collide with each other under their own power, but rather, were pushed into one another.   Stated otherwise, the court ruled that it cannot be said, as a matter of law, that just because two vehicles did not collide with one another under their own power, that those operators were not liable.  The court noted that the causal negligence of those operators may be inferred from those motorists bringing their vehicles too close to one after which a third party to smash them together.  

Based upon these issues presented by the facts before the court, summary judgment in favor of certain defendants was denied.

Anyone wishing to review a copy of this decision may click this LINK

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog (Click HERE to check out Attorney Beck's blog).  

Tuesday, March 29, 2016

Eastern Federal District Court Addresses Addresses Motion to Stay/Discovery Issues in Post-Koken Bad Faith Context

In the case of the post-Koken case of Wagner v. Allstate Ins. Co., No. 5:14-cv-07326 (E.D. Pa. Jan. 19, 2016 Leeson, J.), Judge Joseph Leeson of the Federal Eastern District Court of Pennsylvania refused the UIM carrier’s effort to stay the Plaintiff’s bad faith claim but, in the end, rejected most of the insured’s bad faith discovery requests.  

According to the Opinion, the UIM carrier’s primary argument in favor of its request for a stay on bad faith discovery was that, to allow such bad faith discovery would require the UIM carrier to give up protection for work product that it prepared in anticipation of litigating the underlying breach of contract UIM claim.   The court rejected this argument and asserted that a “mere claim of bad faith is not shattered the work-product privilege.”  

Overall, the court found that a stay of bad faith discovery is not required to eliminate any prejudice or to promote economy.   The court observed the different terms in granted or denying stays of bad faith discovery in Pennsylvania’s state in federal courts but attributed this split in authority, in part, to the fact that bad faith is tried by a judge in the state court but by a jury in the federal courts.  

In reviewing the bad faith discovery issues as applied to work-product issues, the court found that an insurance company could not reasonably argue that the entirety of its claims file materials are accumulated in anticipation of litigation.   However, the court also stated that this did not mean that the work-product doctrine was wholly in applicable to insurers’ claims files.   The court stated that, at some point in its investigation, an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation.  

Accordingly, the court rejected the Plaintiff’s assertion that all of the insurers’ claims and investigation files were created in the ordinary course of business.  Rather, the court in Wagner found that “[w]hether Plaintiffs may be entitled to a subset of that information would hinge upon a fact-specific inquiry into the nature of the information that they seek, when [the insurer] reasonably anticipate litigation, Plaintiffs’ need for the particular information, and whether they can obtain the information through other means.”  

The court further noted that this inquiry requires very specific arguments and typically the need for an in-camera review of the documents by the court.   Here, the Plaintiffs were found to have made no such arguments as it was the Plaintiff’s primary position that there was no work-product privilege.  Accordingly, the Motion was denied, but without prejudice.  

Judge Leeson did go on to determine the date when the insured was deemed to have reasonably anticipated litigation.   The court found that that date occurred after the insured’s first demand for the policy limits because the carrier had asked for certain information to be able to evaluate the claim and the demand.   The court found that it was only after receiving that information that litigation could have reasonably been anticipated.  

The court also noted that, even materials prepared after litigation was reasonably anticipated by the carrier might turn out to be discoverable if exceptions to the work-privilege could be established by the Plaintiff.  In other words, if the Plaintiffs were able to show that they have a substantial need for the particular materials and cannot, without undue hardship, obtain those materials or their substantial equivalent by other means, Plaintiffs may be permitted to obtain the discovery they seek, provided that the discovery did not include mental impressions, conclusions, opinions, or legal theories of the carrier, its attorneys, or other representatives.  

Anyone wishing to read the Wagner v. Allstate case online may click this LINK.  
Source:   Pennsylvania and New Jersey Insurance Bad Faith Case Law Block (March 15, 2016) at

Latest Take on Sackett Analysis By Pennsylvania Superior Court

Another heady Sackett-type UIM stacking opinion has been handed down by the Pennsylvania Superior Court in the form of Toner v. Travelers Home and Marine Insurance, No. 53 WDA 2015, 2016 Pa. Super. 69 (Pa. Super. March 21, 2016 Ott, Stabile, Shogan, J.J.)(Op. by Ott)(Shogan, Dissenting).

This case involved an automobile insurance policy that originally only had one vehicle on it and under which the insured had waived stacking.  The insured later added two vehicles to the policy, one at a time.  The insured was not provided with a waiver of stacking form either time a new vehicle was added.

After the insured's son was seriously injured in a motor vehicle accident, the carrier paid the UIM limits available for one vehicle.  The Plaintiff filed a declaratory judgment action asserting that the UIM carrier should have provided the insured with new waiver of stacking forms to sign and that, by not doing so the carrier was required to provide stacked coverage for all three vehicles.

The Superior Court majority affirmed the trial court's decision that new waiver forms were not required under the Sackett analysis.

Anyone wishing to tackle the Superior Court's latest take on the Sackett analysis may click this LINK Judge Shogan's Dissenting Opinion can be viewed HERE.

UPDATE:  The Toner case refernced above settled just before the Pennsylvania Supreme Court was set to address the stacking issues raised therein.  As such, the Pennsylvania Superior Court's decision in the matter stands.

Monday, March 28, 2016

ARTICLE: Brief Rewriting Tips for the Young (or Any) Lawyer

The below article of mine appeared in last week's March 17, 2016 edition of the Legal Intelligencer and is reprinted here with permission.  All rights reserved.

Brief Rewriting Tips for the Young (or Any) Lawyer


Daniel E. Cummins, Esquire
The Legal Intelligencer

March 17, 2016

The use of simple words, short ­sentences, and narrow paragraphs will render your work product clear and concise. Pointed sentences composed of tight words will keep a grasp on the reader, allowing their minds to flow continuously through your written argument in a focused fashion.

A long sentence that goes on and on and moves from idea to idea with words and notions will surely lose the reader at midpoint and make that reader then have to go back and re-read the sentence more than once in order to understand what is being conveyed, thereby puzzling the reader and possibly making him or her lose interest in reading the rest of what you have written because the reader has forgotten what point the sentence is attempting to convey in the first place about long sentences. See?

Whenever possible, sentences should ­instead be limited to the conveyance of one idea. Where two or more ideas are put forth in a single sentence, see if that sentence can be broken into two.

With paragraphs, every attempt should be made to keep your paragraphs limited to one main idea. This main idea of the paragraph should be emphasized in a topic sentence written in an active voice, (i.e., place the subject before the verb).

Also, keeping paragraphs to five ­sentences or less will also make your brief more pleasing to the reader's eye. Readers coming to a page in your brief that has words broken down into only two paragraphs are likely going to sigh before attempting to wade through such verbosity.

And remember, there is no rule against utilizing a one-sentence paragraph to ­emphasize an important point.

Avoid Redundant Use of Words

The redundant use of the same words can be annoying to a reader. Wherever possible, seek out and utilize a synonym of the repeated word, first making sure that the meaning of the alternate word is appropriate.

The exception to this rule in brief-writing is that the terms "plaintiff" and "defendant" should be repeatedly used so as to keep clear to whom the writer is referring in any given sentence. These terms should even be used on appeal in the place of "appellant" or "appellee" for clarity's sake.

In fact, Pennsylvania Rule of Appellate Procedure 2131 cautions the appellate brief writer to keep the use of the terms "appellant" and "appellee" to a minimum. When using such terms, perhaps the clearer way would be to utilize "appellant-defendant" the first time that party is identified and then sticking with "defendant" throughout the remainder of the brief.

Be Redundant in Your Position

While redundancy in word use is to be avoided, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.

The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. Repeatedly end each section of the brief with a statement that the motion at issue should therefore be granted or denied, whatever the case may be.

Be Conversational

Legal writing courses in law school wrongfully kill creativity in brief writing in favor of arid, brittle, crisp statements of the law as applied to colorless adjective-free facts. The result is lifeless law review writing, and who seeks out law review articles to read after they are written? No one.

So be conversational in your writing and bring the story of your case to life within your argument with descriptive but concise words and sentences. Let your recitation of the facts flow as if you are relaying the story of the case to a friend. Leave out slang words, but don't be overly formal either. Use your natural speaking language in your writing.

Robert Frost has been quoted as writing or saying, "No tears in the writer, no tears in the reader. No surprise in the writer, no surprise in the reader."

Similarly, if there is no feeling conveyed in the writing of the brief in the form of colorfully vigorous and compelling statements that the law and facts in support of the ­position of your client, then there is going to be no similar feeling born in the reader.

Being conversational includes being polite. Know your place and never tell a judge that he or she "shall" or "must" accept your position. Rather, soften such statements by instead writing that "it is respectfully submitted" that the rule of law requires or mandates the result requested.

Question Presented

A lot of attorneys glaze over the "Question Presented" section of a brief and, in doing so, miss another opportunity for the court to read their client's argument as set forth in a concise and forceful format that foreshadows the conclusion desired.

It is a waste to simply state in the "Question Presented" that the motion at issue should be granted or denied.

Always begin your "Question Presented" with a phrasing that suggests your position should carry the day. For example, for the movant, the "Question Presented" should be positively phrased as, "Whether the motion of the defendant, John Smith, to compel should be granted where..." and vice versa.

Then, as concisely as possible, include in the "Question Presented" the pertinent facts of your case as applied to the rule of law in a manner that favors your position. In the end, the "Question Presented" should be a detailed statement of your legal position in a question format that asks whether your position should be accepted by the court. As noted below, the language in your "Question Presented" and conclusion sections should mirror one another as concise, but not identical, affirmations of your ­client's position.

Cite the Law

Whenever you cite a legal principle of law, lend it credence by adding a citation to a case rule or statute after the end of the sentence. Without citations, your stated legal principles will appear to be your philosophy of the law and the reader knows that you are no philosopher of the law.

Lawyers are trained to cite everything. Judges are lawyers. For lawyers, a citation is like whipped cream on an ice cream sundae—you don't really take notice of it when it is there, but you sure do know and protest when it is missing.

The absence of a citation for a stated position raises a belief in the reader that there must be no citations supporting the position taken or that the lawyer was too lazy to look one up. Either way, the instantaneous conclusion of the reader is that they should therefore not accept the argument put forth as valid or worth consideration. Avoid this by listing citations wherever possible.

Although not required, it may be a good idea to identify in the citation the judge who wrote the decision cited. Judges know each other from traveling in the same circles and an opinion written by one judge may carry weight with your judge.

Use Conclusion Section for More than a Conclusion

Some attorneys may have a ­misperception that the final conclusion section of a brief can only be utilized for a one-line statement of the relief requested, i.e., "For the above-stated reasons, it is respectfully requested that the plaintiff's motion to for summary judgment be granted."

Surely the last sentence of the brief should be a respectful request for the granting of the relief requested, but there is no rule stating that one is precluded from utilizing the conclusion of a brief as one last great opportunity to encapsulate your client's legal argument. An excellent way to accomplish is to recast your "Question Presented" as a strong final statement that the relief requested should be allowed by the court.

Focused Edits

One can become sick of looking at a written product after a few edits and thereby lose focus. One way to counter this ­phenomenon is to conduct focused edits of the document.

Do a focused edit of only looking at the citations for proper format and punctuation. Do an edit focused on keeping sentences short and tight. Do another edit focused only on making sure you have good transitions from one paragraph to the next and from one section of the brief to the next. Another edit of your brief can be completed with an eye centered on ensuring that each section of your brief begins and ends with a concise statement of the legal relief requested.

At another run-through, start by editing a section near the end of the brief and then going back to the beginning in order to have fresh eyes on the latter sections of a lengthy brief.

It can be safely said that no great brief was ever written on a first draft. And so as you work on crafting the best-written product you can produce to which your paying client is entitled, keep in mind the words of former U.S. Supreme Court Justice Louis Brandeis: "There is no great writing, only great rewriting."

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, March 23, 2016

ONE TO WATCH: Pennsylvania Supreme Court Agrees to Hear Important Voir Dire Issue

The Pennsylvania Supreme Court has agreed to review an important voir dire issue in the case of Shinal v. Toms, No. 897 MAL 2015 (Pa. March 23, 2016).

The Tort Talk blog post on the Superior Court's decision in Shinal can be viewed HERE.

In Shinal, a 2-1 majority of a three-judge  Superior Court panel declined to follow the plurality opinions authored by now Justice Wecht and now Justice Donohue in Cordes which had held that "indirect" relationships (e.g., defendant physician treated juror's spouse or parent) constituted grounds for per se prejudice and disqualification of jurors regardless of their voir dire responses asserting that they could be fair and impartial.

The Tort Talk blog post on the Superior Court's decision in Cordes can be viewed HERE.

Anyone wishing to review the Pennsylvania Supreme Court's Order in Shinal outlining the specific issues to be reviewed may click this LINK.

UPDATE:  The Pennsylvania Supreme Court reversed the Superior Court's decision in this case at 162 A.3d 429 (Pa. 2017).

Recent Post-Tincher Decision of Note Out of the Western District

In the Western Federal District Court case of Rapchak v. Haldex Brake Products Corp., No. 2:13-CV-1307 2016 WL 1019534 (W.D. Pa. March 15, 2016 McVerry, J.), the court denied a defendant’s summary judgment motion in a Post-Tincher products liability case.

This matter arose out of a fatal incident involving a Plaintiff who was performing maintenance under his motorhome when the vehicle descended upon him.

The court concluded that the central question of whether adding a filter to an air flow system would have made the product harder to use because the filter would have to be changed too often was a question for the jury to determine. 

The court in Rapchak referred to the Wade factors for risk/utility and an “ordinary consumer” test for consumer expectation. 

Also, in a footnote, the court in Rapchack described one of Tincher’s “principal impacts” as being the elimination of the Azzarello negligence/strict liability dichotomy and the other being that the Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts relative to Pennsylvania Products Liability claims.  See n. 15.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith, and the main blogger for the Drug and Device Law Blog  for bringing this case to my attention.

Proper Parameters for Neuropsychological IME Addressed by Pennsylvania Superior Court

In its recent decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9, 2016 Panella, J. Ott, J., and Jenkins, J.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a Defendant’s Motion for a Protective Order prohibiting the presence of third party observers during the standardized test portion of a neuropsychological evaluation.  

According to the Opinion, this matter arose out of a motor vehicle accident.   Among the injuries claimed by the Plaintiff was cognitive harm allegedly triggered by the accident.   The Plaintiff treated with a neuropsychologist and, during that treatment, the Plaintiff’s treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the Plaintiff’s attorney or any other third party.  

During the course of the litigation, the defense hired a doctor to complete an independent neuropsychological examination.   Plaintiff’s counsel demanded to be present during all components of the neuropsychological examination.   The IME doctor objected to this request, including the Plaintiff’s counsel’s request to audio tape the testing evaluation.   The IME doctor pointed to an official statement of the National Academy of Neuropsychology as indicating that third party presence and/or audio taping during testing may represent a threat to the validity and reliability of the test data.   The IME doctor indicated that he would allow the Plaintiff’s attorney to be present during the interview portion of the examination.  However, the IME doctor would not permit either the presence of the Plaintiff’s counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

This proposed compromise by the IME doctor was not acceptable to Plaintiff’s counsel.  

The issue then came before the trial court, which entered an Order granting the Defendant’s request for protective order.  That order stated that, although Plaintiff’s counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the Plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing.   The order further provided that no recording device would be permitted in the evaluation room.  

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant’s right to counsel during a psychological examination.   As noted, on appeal, the Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue.  The court also found support for the trial court’s decision under Pa. R.C.P. 4010, pertaining to Physical and Mental Examination of Person.  

The Superior Court also noted that, although there was “no case law [that] address of the application of Rule 4012 to Rule 4010,” the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive Rule which covers all depositions and all discovery.   Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.  

The Superior Court went on to note that Rule 4012 did not empower the trial court to issue protective orders carte blanche.  Rather, the moving party still had the burden of showing “good cause” for the issuance of a protective order.   The court noted that the good cause standard “strikes an appropriate balance between competing interests, including a litigant’s privacy interest (however they be defined)…. and the court’s obligation to administer justice efficiently and prevent abuse of the discovery process.”   See Op. at 11 [citation omitted].  

Here, the Superior Court found that the Defendants had established good cause for the trial court’s issuance of the protective order.  In the end, the Superior Court found that the trial court’s decision represented a fair and thoughtful balance of both the patient’s interests and the presence of counsel during a neuropsychological examination and the court’s obligation to administer justice efficiently and to prevent abuse of the discovery process.   See Op. 12.   As such, the trial court’s order was affirmed as the Superior Court found no abuse of the trial court’s discretion in this regard. 

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

Additional Commentary: For one of the first decisions on this same issue with the same result (which decision actually predates and is cited by the trial court in its decision in Shearer), see Lackwanna County Judge Carmen D. Minora’s Opinion in the case of Marion v. Lukaitis in this Tort Talk post HERE.

UPDATE:  This decision was later vacated by the Pennsylvania Supreme Court who ruled that the Superior Court erred in considering the appeal in the first place as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court's order only met one of the three prongs of the collateral order doctrine. 

To view this decision by the Pennsylvania Supreme Court, click HERE.  The Concurring Opinion by Justice Wecht, and the Dissenting Opinion by Justice Mundy are not Linked here.

Post-Tincher Products Decision out of Eastern District of PA

In the case of Hatcher v. SCM Group North America, Inc., No. 15-1630 (E.D. Pa. March 1, 2016 Schiller, J.), the Eastern District Federal Court addressed Post-Tincher products liability issues in a case in which a machinist Plaintiff alleged injuries to three (3) fingers while working with an industrial woodworking sawing machine.  

According to the Opinion, on the front of the machine, there was a warning label that stated, in capital letters, “DON’T RUN THE MACHINE WITHOUT NECESSARY SAFETY GUARDS.”  

The court additionally noted that the operation and maintenance manual that came with the machine explained in detail how to use and assemble the safety guards, including a fence system and the blade guard.   The manual contained the warning, “Before starting machine, make sure all guards are in place.”  

At the time of the incident, the blade guard was not in use.  

According to the Opinion, the Plaintiff had been hired three (3) months before the accident to operate the subject machine.   However, the record before the court indicated that the Plaintiff had only used the machine once before the accident. 

Moreover, the Plaintiff had not received any formal training on the machine, aside from a demonstration with verbal instructions by the primary operator of that machine.  That demonstration with instructions took place on the date of the incident.  

The record confirmed that, prior to the accident, neither the Plaintiff, nor the primary operator of the machine had ever read the operating manual.  The Plaintiff also admitted that he never read the capital letters warning on the machine.    

Additionally, the Plaintiff and the primary operator of the machine, as well as other individuals, each testified that they never knew that a blade guard even existed for the machine.  

Other evidence indicated that the company had not had any problems with the machine since purchasing it at an auction over twenty-five (25) years before.   The primary operator, and another individual, testified that they still believed, despite the accident, that the machine was safe to use even without a blade guard.  

The Opinion also noted that the Plaintiff asserted that the blade guard would have prevented his injury and that he would not have used the machine without the blade guard if he had known it existed.  

The case came before the court on a summary judgment motion by the Defendant.  

The court noted that the Plaintiff initially presented four (4) claims in the Complaint:

                        (1)       Breach of Expressed and Implied Warranty;

                        (2)       Defective Manufacturing;

                        (3)       Defective Design, and,

                        (4)       Failure to Warn.

The court noted that the Plaintiff conceded that there was no manufacturing defect.   The Plaintiff also conceded that the Defendant’s evidence established that the Plaintiff’s breach of warranty claim was time barred.  

The court also found that the Plaintiff failed to distinguish between the defective design claim and the failure-to-warn claim, offering no evidence to support an independent defective design claim.  

The court additionally found that the Plaintiff’s failure-to-warn claim failed because the danger of the spinning blades on the machine was open and obvious and the existing warnings adequately addressed the danger of operating the machine without safety guards.  

Accordingly, the court granted summary judgment to the Defendant on all of the claims presented.  

In so ruling, the court held that extended periods of safe product use establishes that the alleged lack of proper warnings did not make the product “unreasonably dangerous.”   In its decision, the court also applied the pre-Tincher rule that there is no duty to warn of risk that only arises when existing warnings are ignored.  

Anyone wishing to read this Hatcher Opinion online may click this LINK and the Order HERE.

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

Third Circuit Addresses Crashworthiness Claim Under New Tincher Products Liability Standards

In the recent Third Circuit Court of Appeals Opinion in the case of Rupert v. Ford Motor Co., No. 15-1731 (3d Cir. Jan. 28, 2016 McKee, Ambro, Scirica, J.J.) (Opinion by McKee, J.)(Marked "Not Precedential), the Third  Circuit Court of Appeals affirmed the entry of summary judgment in favor of a Defendant in a products liability case.  

In this case, the court found that the Plaintiff’s expert report was properly excluded given the faulty support offered by the expert in favor of his opinion.  The court ruled that the expert’s conclusions had not been tested and had only been articulated based upon apparent intuition.   The court affirmed the ruling that, without an expert, the Plaintiff could not establish the elements of crashworthiness. 

This Opinion is also notable in that the Third Circuit held that, under the Pennsylvania Supreme Court decision in Tincher, there was no change to the requirement in crashworthiness cases that a Plaintiff prove that a safer design would have lessened injury.

This Non-Precedential decision can be viewed online HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog.  



Thursday, March 17, 2016

A Shiny Floor Does Not Equal Negligence

In the case of Daniels v. Sears & Sears Roebucks & Co., No. 15-4827 (E.D. Pa. Feb. 10, 2016 Surrick, J.), the Eastern District Federal Court granted summary judgment in favor of a Defendant store owner after finding that the Plaintiff had failed to present sufficient evidence to establish that an unsafe condition caused her to fall.  

According to the Opinion, the Plaintiff fell in a changing room in the store but could not state what caused her to fall. She admitted that she could point to no foreign substances on the floor either before or after her fall.  Rather, the Plaintiff attempted to get beyond the summary judgment stage by arguing that a juror could potentially and reasonably infer that the floor was slippery and dangerous with the presentation of evidence that the floor was unusually shiny.

Of note in this decision was the court’s conclusion that evidence that a floor was shiny does not, in and of itself, establish that an unsafe condition existed.  The court found that, to allow this case to proceed to a jury, would have subjected the case to impermissible speculation and conjecture on the part of the jury on the liability issues.

As such, summary judgment was granted in favor of the Defendant store.

Anyone wishing to review this decision in Daniels may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog.  

Wednesday, March 16, 2016

Crawford County Post-Koken Decision In Favor of Consolidaton of Negligence/UIM Claims, But Severance and Stay of Bad Faith Claim

In the case of Lamagna v. Keffer, No. A.D. 2015-630 (C.P. Crawford Co. March 1, 2016 Stevens, J.), Judge Mark D. Stevens of the Crawford County Court of Common Pleas addressed Preliminary Objections filed by all Defendants to a Plaintiff’s Complaint along with a Motion to Sever the negligence claim from UIM claims and a companion Motion to Stay and Sever the Bad Faith Claims.  

In this case, the Plaintiff sued the third party tortfeasor along with his own UIM carrier and asserted bad faith claims against the UIM carrier with respect to their handling of the UIM claim.  

Judge Stevens noted that he was faced with two (2) issues. First, whether the breach of contract action (UIM action) should be severed from the negligence claim.  

The second issue was whether the breach of contract action (UIM action) and/or the third party negligence claim should be severed from the bad faith claim and whether the bad faith claims should then be stayed.  

The court reviewed the first issue, i.e., whether the UIM claim should be severed from the negligence claim, under Pa. R.C.P. 2229(b) which pertains to joinder of actions that arise out of the same transaction, occurrence, or series of transactions or occurrences.   If any common questions or law or fact affecting the liabilities of all such persons would arise in the action.  

Judge Stevens noted that the Pennsylvania Courts of Common Pleas are split on this issue and that he was unaware of any binding authority within the Crawford County Court of Common Pleas that matched the facts of this case.  

To date, there have been no appellate court decision on this issue.  

After comparing and contrasting the Plaintiff’s UIM claim against the third party negligence claims against the alleged tortfeasor, the court declined to sever the UIM claims from the negligence claims during the course of discovery.   The court found no meritorious basis that the Defendants would be prejudice by the claims proceeding together.  

Judge Stevens noted that, should the UIM carrier raise additional defenses in the UIM claim that were contractual in nature and unrelated to the negligence issues against the Defendant driver, the court would reconsider the possibility of a future severance at a later time.  

Judge Stevens also noted that, with this decision in favor of a consolidation of claims, “[t]he question becomes whether the Court can effectively manage the insurance issue before the jury by appropriately grafting the instructions and a verdict slip and controlling the proceedings in a way that does not prejudice any of the parties but allows the fact finder to make the appropriate, fundamental decisions necessary to dispose of the common questions of liability and damages.”  

The court found that, at this early stage of the matter, it appeared that discovery could be effectively managed by allowing the third party and contract claims to proceed together as no prejudice existed on the service with respect to the discovery phase of the matter.   Judge Stevens was careful to note in his Opinion that he would address the issue of how to proceed at trial, including whether or not the case should be tried in a consolidated fashion, at a later time, if necessary.  

On the separate issue of whether the bad faith claims should be severed from the UIM claim in the underlying negligence claims, Judge Stevens granted the defense Motion to Sever and Stay.   In so ruling, Judge Stevens pointed to his prior decision in the case of Rucci v. Erie Insurance Exchange, No. 2014-803 (C.P. Crawford Co. Feb. 5, 2015, Stevens, J.).   In Rucci, Judge Stevens had severed the Plaintiffs’ bad faith claim from their breach of contract claim and stayed discovery on the bad faith claim.  

Judge Stevens felt that the logic of the Rucci decision applied in a more compelling fashion in this matter where the Plaintiff was additionally asserting negligence claim along with the bad faith claim.   In this regard, the court reasoned, as follows:

“Here, the Plaintiff alleges negligence along with the bad
faith claim.   [The UIM carrier] owes the Plaintiff a
fiduciary duty of good faith and fair dealing pursuant to
its insurance contract.    However, provided that a factual
basis exists, [the UIM carrier] has the right to argue that
it is not contractually obligated to pay the claim.  In this
case, that contractual obligation seems to turn, at least at
this stage, on the question of who was the responsible
driver at the time of the motor vehicle accident.   In the
event that the Plaintiff was in fact the responsible driver,
which is a defense that [the UIM carrier] suggests that it
has a legitimate basis to assert, and [the UIM carrier] would
not be contractually obligated to provide UIM benefits
under most typical policies of automobile insurance.  To
require [the UIM carrier] to simultaneously attempt to
balance a pending bad faith claim subject to discovery
while asserting that no contractual obligation exists creates
an unfair and prejudicial circumstance.  This circumstance
is compounded even more by the fact that there exists at
third party claim where the decedent Defendant appears
prepared to defend on grounds that the Plaintiff was the
driver.   While arguably the applicable standard for the
Defendant in the third party claim to assert that the
Plaintiff was the driver is different than [the UIM
carrier’s] standard for asserting such under the breach
contract claim, the reality is that the factual question is
still the same.
Regardless of the pendency of the bad faith claim,
[the UIM carrier] must always conduct itself in
conformity with its obligations to act appropriately
towards its insured.  However, the posture of that
situation changes dramatically if there is ongoing,
active bad faith litigation.”

The court went on to note that, if a jury ultimately concluded that the Plaintiff was the operator of the motor vehicle at the time of the accident, a successful bad faith claim would obviously be difficult, if not impossible.  
Judge Stevens also stated that, even if the court determined that the Defendant was the driver of the vehicle, the Plaintiff’s bad faith claim would not be established by the mere fact that the carrier contested the issue of who was driving during the subject accident.   The court noted that typically, when a bad faith claim is filed, the allegations of bad faith have already substantially occurred.   In the case before the court, Judge Stevens felt that it appeared almost certain that, as the underlying UIM claim progressed, the allegations of bad faith the theories of and facts upon which the bad faith claim would be asserted, would likely develop and change.  
Accordingly, the court ruled that, even assuming for arguments sake that bad faith conduct had occurred at this early stage of the litigation, severing and/or staying the bad faith action would not in any way harm the Plaintiff nor would it serve to excuse any bad faith conduct of the carrier.   Judge Stevens felt that, as this UIM claim developed, especially where it appeared that the UIM carrier was prepared to vigorously defend under the contract as to who the responsible driver was, it was almost certain that the bad faith claims would become more complex as the case proceeded.  
Accordingly, Judge Stevens held that “[t]o force [the UIM carrier] to assert its contractual defenses pursuant to the policy while simultaneously defending itself on a bad faith claim appears to create an obvious and immediate prejudice.”
Judge Stevens also noted that “[c]onversely, assuming arguendo that the cases proceeded simultaneously, the only benefit to the insured, besides some minor, if not illusory, efficiencies, is the leverage the Plaintiff could use to attempt to prevent [the UIM carrier] from vigorously asserting its contractual defenses for fear of the open, pending bad faith claim.” 
As such, the court granted the Defendant’s Motion to Sever and Stay the Bad Faith Claim.   The court stated that the bad faith claim would be allowed to proceed only upon further Order of the Court.  

Anyone desiring a copy of this Lamagna  decision by Judge Stevens of Crawford County may contact me at
I send thanks to Attorney Joseph Hudock of the Pittsburgh, PA law office of Summers, McDonnell, Hudock & Guthrie for bringing this decision to my attention.


Monday, March 14, 2016

Superior Court Reviews Law of Duty in Cheerleading Injury Case

In the case of Kennedy v. Robert Morris University, No. 1844 EDA 2014, 2016 Pa. Super. 16 (Pa. Super. Jan. 29, 2016 Bowes, Olson, Stabile, J.J.) (Opinion by Bowes, J.), the Pennsylvania Superior Court granted summary judgment in favor of the Defendants in a negligence claim arising out of injuries sustained by the Plaintiff at a cheerleading camp.

The court reasoned that a college did not have any duty under the law of negligence with respect to activities that were conducted off-campus and operated by an independent contractor.   The court rejected the Plaintiff’s argument that, since the camp was a mandatory extra-curricular activity required by the college, a duty must have been created.  

The court also rejected the Plaintiff’s claims of liability given that there was no allegations that the operator of the camp was negligently selected.  

The court additionally emphasized that no employee of the Defendant college was supervising the Plaintiff at the time of the accident.   Rather, the record revealed that all of the supervision was provided by the independent contractor event operator.  

Anyone wishing to review this Opinion, may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog (click HERE).  


Friday, March 11, 2016

Pennsylvania Superior Court Decision on Sufficiency of Evidence To Corroborate and Render BAC Evidence Admissible [Non-Precedential]

In its recent non-precedential decision in the case of Coughlin v. Massaquoi, No. 3367 WDA 2014 (Pa. Super. 2016 Ford Elliot, P.J.E., Stapile, and Strassburger, J.J.) (Strassburger, J., concurring) (Mem. Op. by Ford Elliot, P.J.E.) the majority of the Superior Court concluded that the expert testimony presented at the trial below in this matter was sufficient corroborating evidence to permit the admission of the decedent’s BAC in a civil litigation matter.   

This matter involves a Plaintiff’s decedent, who was struck and killed by a motor vehicle while the decedent was crossing the street.   Evidence was presented in the  matter that the decedent was heavily intoxicated at the time of the accident.  

The trial court had denied the Plaintiff’s Pre-Trial Motion In Limine to exclude evidence of the decedent’s intoxication, including the toxicology report and the expert testimony of a toxicologist.   Ultimately, the jury determined that the Defendant’s negligence was not a factual cause of the Plaintiff’s decedent’s fatal injuries.  

On appeal, the Plaintiff argued, in part, that the trial court had erred in denying its Motion In Limine seeking to preclude evidence of the Plaintiff’s decedent’s post-mortem BAC of .313 when there was allegedly no additional independent cooperative evidence of intoxication.  The Plaintiff also asserted that the trial court erred in allowing the testimony of the Defendant’s toxicologist expert.  

The Pennsylvania Superior Court noted that the Plaintiff was arguing that the decedent’s BAC was inadmissible as a matter of law where there is no independent corroborated evidence of intoxication such as slurred speech, odor of alcohol, unsteady gait, etc.   Moreover, the Plaintiff asserted that there was no evidence as to the decedent’s whereabouts prior to the accident or any independent eyewitness testimony to support any inference that the decedent had been drinking and/or was heavily intoxicated prior to the accident.   The Plaintiff further asserted that the decedent’s BAC, in and of itself, was insufficient for the issue of intoxication to go to the jury.  In response to these contentions by the Plaintiff, the Pennsylvania Superior Court wrote, “We disagree.”   See Coughlin at p. 6.  

The Pennsylvania Superior Court stated its analysis by noting that the trial court judges enjoy a broad discretion regarding the admissibility of evidence.   The court also noted that it is well-settled law of this Commonwealth since 1927, under the case of Critzer v. Donovan, 289 Pa. 381, 137 A. 655 (1927), that, where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication.  [Other citations omitted].  

The court noted that Pennsylvania law also provides that evidence of intoxication must reasonably establish a degree of intoxication with producing unfitness to drive or reckless or careless driving is the matter at issue in a case.  This rule was extended under Pennsylvania law regarding the admissibility of evidence tending to establish intoxication on the part of a pedestrian.  

With regard to pedestrians, evidence of intoxication is inadmissible unless it proves unfitness to be crossing the street.   Furthermore, the rule of law is that no reference should be made to a pedestrian’s use of alcohol unless there is evidence of excessive or copious drinking.  

The court also noted that, under Pennsylvania law, the theory behind allowing a blood alcohol level to be admitted into evidence of a civil case is that it is relevant circumstantial evidence relating to intoxication.   However, blood alcohol level alone may not be admitted for the purpose of proving intoxication.   Generally, there must be other evidence showing the actor’s conduct which suggests intoxication.  In such instance, and if other safe guards are present, the courts would allow the admission of blood alcohol level evidence.  See Coughlin at p. 8-9.  

In this matter, the defense toxicologist expert testified that an individual with a BAC greater than .31 would be unfit to cross the street safely.   The expert therefore testified that, with a BAC of .313, the decedent would have been unable to safely cross the street.   The court noted that, although there was no eyewitness testimony to corroborate the fact of the decedent’s intoxication, no evidence of slurred speech, staggered gait, etc., no witness who saw the decedent consume alcohol prior to the accident, and no witness who saw the decedent attempt to cross the street, the court stated that it has been held, under Pennsylvania law that the “other” evidence of intoxication necessary to render admissible the results of a blood alcohol test do not have to consist of third-party eyewitness testimony, but may consist of expert testimony describing the effects of a particular BAC level on a person.   See Coughlin at p. 11. [citations omitted].  

In the matter before it, the Pennsylvania Superior Court found that the Defendant’s toxicologist’s expert testimony was sufficient corroborating evidence for the admission of the decedent’s BAC result.   As such, the Superior Court found that the trial court did not abuse its discretion in denying the Plaintiff’s Motion In Limine or Post-Trial Motion for a New Trial.  

Anyone wishing to review this currently non-precedential Majority Opinion may click this LINK.
The non-precedential Concurring Opinion by Judge Strassburger can be viewed HERE 

I note that the handling defense attorney, Joseph Hudock of the Pittsburgh office of Summers McDonnell, Hudock & Guthrie noted his intention to petition the court to make this decision a published Opinion (and therefore precedential). 

UPDATEThis decision has since been published by the Pennsylvania Superior Court and is, therefore, precedential.

Commentary:  It is believed that this may be the first time that a Pennsylvania appellate court has ruled that the “other” evidence necessary to secure the admission of a blood alcohol content (BAC) reading before a jury can consist of merely testimony from an expert toxicologist.  

Punitive Damages Claim Allowed to Proceed in DUI and Dram Shop Civil Actions

A punitive damages claims were allowed to proceed in a Dram Shop Act action in the Montgomery County Court of Common Pleas case of Robertson v. Valley Forge Beef & Ale, Inc., PICS Case No. 16-0225 (C.P. Montg. Co. Jan. 19, 2016 Smith, J.).  

This matter arose out of a motor vehicle accident allegedly caused by a driver who had been allegedly served alcohol while visibly intoxicated at the Defendant’s bar.   The Defendant driver was later convicted of a DUI and reckless and careless driving. 

In their civil action Complaint, the Plaintiff alleged that each of the Defendants’ conduct was separately outrageous, willful, intentional, and done with conscious indifference.  The Plaintiff sought punitive damages.  

The court applied the well-settled law that punitive damages could be sought in a case involving a DUI Defendant driver and with respect to a Dram Shop action against a tavern.

In its overruling of the Defendant’s Preliminary Objections to the Plaintiff’s Complaint, the court did state that, if discovery confirmed that the Plaintiff was unable to establish outrageous conduct and/or reckless indifference, the defense retained the right to proceed on a Motion for Summary Judgment.

 Anyone desiring a copy of any of the above cases may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the PICS Case Number noted and pay a small fee.

Source:  "Case Digests," Pennsylvania Law Weekly (March 1, 2016).


Wednesday, March 9, 2016

Liability of Employer for Negligent Supervision of Employee Who Engaged in Criminal Conduct Off Employer Premises

In his recent February 19, 2016 decision in the case of Doe v. Cruciani, No. 2012-CV-5920 (C.P. Lacka.  Co. Feb. 19, 2016 Nealon, J.), Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by a Defendant employer to a Plaintiff’s tort action seeking compensatory and punitive damages against a plumbing supply business for negligent supervision of its employee who allegedly lured the Plaintiff’s minor daughter into his company-leased vehicle and allegedly entrapped the minor in that vehicle and allegedly had indecent contact with the minor.  

The employer filed a Motion for Summary Judgment asserting that it could not be vicariously liable under Pennsylvania law for its employee’s intentional and criminal acts that were outside the scope and course of the employee’s employment.  

Judge Nealon noted that the law required that, in order to succeed with the negligent supervision claim against an employer for injuries caused by the intentional or criminal conduct of an employee committed off of the employer’s premises and outside the employee’s scope of employment, a Plaintiff must demonstrate that (1) the employee was using movable property of the employer at the time of the conduct and, (2) the employer knew or in the exercise of ordinary care had reason to know, of the necessity and opportunity to exercise control over that employee.  

Judge Nealon denied the employer Defendant’s Motion for Summary Judgment with respect to the compensatory damages claims finding that evidence in the record confirm that the employee used the employer’s vehicle during the alleged assault.   Judge Nealon also noted that the record established that the employer knew that the employee, who previously owned the plumbing supply business, had been previously convicted ten (10) years earlier of indecent assault of a minor girl in his company vehicle and had been required to register as a sexual offender for ten (10) years.  

Accordingly, Judge Nealon ruled that, although the employer contended that they did not know if the need to move closely regulate or restrict the employee’s use of the company vehicle while not on the employee’s premises, issues of fact precluded the entry of summary judgment on the compensatory damages claim where reasonably prudent employer should have known of the necessity for exercises such control due to the potential for recidivism by a sexual offender.  

Judge Nealon also noted that, while there was ample evidence to sustain the Plaintiff’s punitive damages claim against the individual employee, summary judgment was granted in favor of the employer on the punitive damages claim as the record did not contain sufficient evidence that the employer had engaged in intentional, willful, wanton, or reckless conduct based upon its subjective appreciation and conscious disregard of the risk of arm to others.  Accordingly, the employer’s Motion for Summary Judgment on the punitive damages claim was granted.  


Anyone desiring a copy of this Opinion by Judgment Nealon may contact me at

Monday, March 7, 2016

Judge Nealon Tackles Assertion of Privilege Against Self-incrimination at Depositions

In a decision handed down a few months back in the case of Rogers v. Thomas, No. 2012-CV1464 (C.P. Lacka. Co. Nov. 25, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the right of a Defendant to assert a Fifth Amendment privilege against self-incrimination in a case brought by the estate of a shooting victim against the adult shooter and his father.  

In this matter, the estate of the shooting victim filed a wrongful death suit against the adult shooter and the shooter's father, alleging that the gun used during the shooting was owned by the father, that the father was present at the time of the shooting, that the father knew that his son had a mental disability which rendered his unfit to use a gun, and that the father allegedly knew that the son had previously harmed or threatened another person with the gun.   The father filed a Motion for Summary Judgment on the liability issues presented. 

The court noted that, during his discovery deposition, the son asserted his Fifth Amendment privilege against self-incrimination and declined to answer any questions concerning the facts at issue.  

However, Judge Nealon noted that the son later testified about the same facts during his criminal trial and was convicted of voluntary manslaughter.  The court also noted that the Plaintiff had exhausted his direct appeal in the criminal proceedings and, as a result, the son’s criminal prosecution had been concluded.  

The father filed a Motion for Summary Judgment based, in part, upon the son’s criminal trial testimony.   The estate opposed the Motion for Summary Judgment on the ground that it was entitled to adverse inference based upon the son’s assertion of his Fifth Amendment privilege and that, therefore, the Defendant's Motion should be denied and the case be allowed to proceed to a civil jury trial.

Judge Nealon reasoned in his Opinion that the Supreme Court of Pennsylvania has held that a Plaintiff cannot satisfy its burden of proof in a civil case solely in reliance upon a Defendant’s failure to testify based upon the assertion of a Fifth Amendment privilege.  

However, the court in this matter went on to rule that, since the son’s criminal prosecution had concluded such that the son was no longer facing the threat of further criminal prosecution or self-incrimination, the son was found to no longer possess the right to refuse to answer the Plaintiff’s deposition questions.  

Accordingly, Judge Nealon ordered the parties to conduct a second deposition of the son and to thereafter submit the deposition transcript along with their supplemental briefs so that the summary judgment motion could be decided at that later point in time.

Anyone wishing to review a copy of this decision by Judge Nealon may click this LINK.



Thursday, March 3, 2016

'Transient Rub of Life' Doctrine Upheld Again by Pennsylvania Superior Court

In its recent decision in the case of Gold v. Rosen, No. 3303 EDA 2014, 2016 Pa. Super. 44, (Pa. Super. Feb. 19, 2016 Stevens, Lazarus, Ott)(Op. by Stevens, J.), Pennsylvania Superior Court affirmed the trial court’s denial of post-trial motions following the entry of a defense verdict.  

This matter arose out of a motor vehicle accident.  The evidence showed that the Plaintiff had also sustained similar injuries in a prior motor vehicle accident about a year before the subject accident. 

The parties in this matter proceeded to a jury trial after an appeal from an arbitration in the court system.  The case was tried on reports alone and the parties stipulated that the defendant was negligent and that the plaintiff sustained a cervical sprain as a result.  The defense contested the amount of the alleged harm from the cervical spine injury and also challenged whether the plaintiff's other injuries were related.  As noted, the jury returned a defense verdict.

The Plaintiff appealed and asserted, in part, that the jury's verdict was against the weight of the evidence as negligence, causation, and an injury had been conceded by the defense.

In Gold, the Pennsylvania Superior Court held that an award of no damages following a verdict of negligence is within a jury’s discretion where the injuries claimed by the Plaintiff were speculative and subjective.   The court reiterated well-settled rule that a jury need not believe the Plaintiff’s damages evidence and may believe in the evidence presented of pre-existing conditions.  

The court also reaffirmed the well-settled rule of Pennsylvania law that not all alleged injuries warrant compensation, even where a plaintiff voices some subjective pain complaints.  The Pennsylvania Superior Court in Gold stated, "This Court recognizes that not all injuries are serious enough to warrant compensation, even though there may be some pain."  Gold at p. 9.  

The Court went on to again recognized the well-settled principle that some injuries alleged by plaintiffs may be so minor as to amount to a "transient rub of life" that may not compensable under Pennsylvania law if so determined by a jury.

The test before the Court was whether the jury's finding that the injuries were so minor that they did not warrant compensation was a decision that defied common sense and logic.

Finding that the jury's decision did not defy logic or common sense, the Superior Court in Gold affirmed the trial court's denial of the plaintiff's post-trial motions.

This Opinion can viewed HERE.
I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog.