Summary Judgment Granted in Slip and Fall Case

In the case of Toro v. Fitness Int’l LLC, PICS Case No. 16-0549 (C.P. Bucks Co. March 17, 2016 Butchart, J.), the court granted summary judgment in favor of a Defendant fitness center regarding the Plaintiff’s personal injury claims arising out of a slip and fall in the locker room. 

The Plaintiff alleged that he slipped and fell on a build up of soapy water in the bathroom in the locker room.   The Plaintiff admitted that he did not know how the floor became wet or how long the condition existed.  

The Defendant asserted that its staff regularly inspected and maintained the locker room where the alleged incident occurred.  There were no reports prior to the alleged incident that the floor was wet.  

The court granted summary judgment finding that the Plaintiff failed to establish any actual or constructive notice on the part of the Defendant.   The court also noted there was no evidence that the Defendant caused the floor to be wet.  

Summary judgment was additionally granted on the basis of the gym membership agreement which was signed by the Plaintiff.   The court noted that the liability waiver clause was emphasized in the document.   The court also found that the membership agreement was not a contract adhesion.  As such, summary judgment was granted on this basis as well.  

Anyone wishing to review a copy of this decision may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above PICS Case No. and pay a small fee.  

 

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (May 10, 2016).  

 

 

Eastern Federal District Court Rules No Third Party Bad Faith Claim Simply For Failing to Settle With Plaintiff

In a recent Pennsylvania Eastern Federal District decision in the case of Leboon v. Zurich Am. Ins. Co., No. 15-05904 (E.D. Pa. April 18, 2016 Pappert, J.), the court ruled that the party injured by an insured has no standing to bring a bad faith claim against the insurer based on allegations of a failure to settle the third party liability case in good faith.  

The court more specifically stated that “[T]he duty to negotiate a settlement in good faith arises from the insurance policy and is owed to the insured, not to a third-party Claimant.” 

The court dismissed the bad faith claims noting that the underlying Plaintiff was a stranger to the insured-insurer relationship.   

Anyone desiring a copy of this decision may click HERE.  

I send thanks to the writers of the Pennsylvania and New Jersey insurance bad faith case law blog for bringing this case to my attention.  

STILL TIME TO REGISTER FOR UPCOMING LACKAWANNA PRO BONO GOLF TOURNAMENT SET FOR JUNE 10, 2016

The Lackawanna Pro Bono Golf Tournament is set for June 10, 2016 at the Blue Ridge Trail Golf Club in Mountaintop, Pennsylvania with a shotgun start at 12:30 p.m.

The Golf Tournament will be preceded by a CLE program and Lunch at 11 a.m. that I will present entitled "Golf Lessons: Tips for Professionalism and the Ethical Practice of Law."  I will utilize video clips in a hopefully entertainingly quick hour-long ethics credit CLE that will touch on a variety of ethical rules as well as the PBA's Working Rules of Professionalism.

If you are not a golfer, you can attend the CLE and Lunch at a lesser price and still thereby support Lackawanna Pro Bono.

Please consider supporting Lackawanna Pro Bono, Inc. at this event.

Here is a LINK to the Registration form to participate in the Golf Tournament and/or the CLE program.

Western District Federal Court Denies Plaintiff's Motion to Remand Post-Koken Case to State Court

In a recent May 10, 2016 decision out of the Federal Western District Court of Pennsylvania in the case of Schutte v. GEICO, 2:16-cv-00374  (W.D. Pa. May 10, 2016 Schwab, J.), Judge Arthur J. Schwab denied a Plaintiff’s Motion to Remand a post-Koken UIM claim back to the state court. 

According the Opinion, the Plaintiff originally filed a lawsuit against GEICO alleging breach of contract, bad faith, and loss of consortium in the Allegheny County Court of Common Pleas.  That case was removed by GEICO to the federal court.  The Plaintiff responded by filing a Motion to Remand the case back to the state court.  

The Plaintiffs argued that the insurance policy at issue contained a forum selection clause which the Plaintiff asserted was valid and should be enforced.   That forum selection clause provided, as follows:  “[T]he dispute shall be resolved in a court of competent jurisdiction in the county where federal district where the insured resided at the time of the accident.”  

The Plaintiff contended that the language of the forum selection clause precluded the Defendant’s right to remove the case from state to federal court.   The Plaintiff further asserted that, as the filing party, the forum selection clause gave to the Plaintiff the sole discretion to choose whether to proceed in state or federal court and that GEICO allegedly contractually agreed to defer to that selection and waive right to move to federal court.   The Plaintiff alternatively argued that the forum selection clause was ambiguous and should therefore be construed against the carrier, which drafted the language.  

The court rejected the Plaintiff’s argument and accepted the carrier’s argument that nothing in the forum selection clause could reasonably be construed as a waiver of the right to remove the case or as a consent to submit to the Plaintiff’s chosen forum.  

The court further stated that the clear and unequivocal language of the policy provided that the Plaintiff may file suit in either the state or federal court in a county in which they reside.   The court found that the Plaintiffs did file suit in a forum of their choice but that the Defendants were well within their rights as well to remove the action to federal court.  

The court otherwise found that the jurisdictional requirements for federal court jurisdiction were met in terms of diversity of citizenship and alleged value of the case.  

Accordingly, the Plaintiff’s Motion to Remand was denied.

 

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

 

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, & Guthrie, P.C.  for bringing this case to my attention.

No Loss of Consortium Claim Allowed to Nephew Relative to Aunt or Uncle

In the case of Young v. Est. of Young, No. 658 C.D. 2015 (Cmwlth. Ct. April 12, 2016 Simpson, Wojcik, Pellegrini, J.J.)(Op. by Simpson, J.), the Pennsylvania Commonwealth Court sustained preliminary objections to a Complaint and ruled, in pertinent part, that there is no cause of action recognized in Pennsylvania for a nephew's loss of an aunt's or uncle's consortium based upon alleged mistreatment by third parties during the elderly aunt's and uncle's final days.


The strange facts of this case can be read online HERE.

ARTICLE: Expansion of Negligence Liability to Text Senders Untenable

The below article of mine appeared in the May 17, 2016 edition of the Pennsylvania Law Weekly.

 

Expansion of Negligence Liability to Text Senders Untenable

 

by

Daniel E. Cummins, Pennsylvania Law Weekly

 

May 17 2016

 

A riddle of negligence law has always been to what extent the orbit of responsibility extends outward from a tortfeasor's conduct toward an injured party so as to render the tortfeasor potentially liable as a matter of law.

As noted by Dean Prosser in his hornbook on torts and as stated by former Justice Benjamin Cardozo in his famous decision in the case of Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), "Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. 'Proof of negligence in the air, so to speak, will not do.'"
Proving that the law is a living and amorphous concept, the slippery slope of how wide liability should extend in personal injury negligence claims has now collided with the rise of rapid-fire cellphone text message communications in the electronic age.

Expansion of liability

An increasing concern with the use of cellphones while driving to call, or even worse, to text others, is leading a push by some to expand, by statute or common law, the scope of liability of third persons toward those involved in motor vehicle accidents.

Currently, Pennsylvania law outlaws texting while driving and additional legislation is being considered to outlaw all cellphone use while driving. A slew of recent Pennsylvania trial court cases have also considered a common law notion of whether or not punitive damages claims should be allowed to proceed against drivers who were utilizing cellphones at the time of an accident. Some county courts have allowed such punitive claims to proceed and some have not, with no clear trend emerging to date.

A case of first impression

Now, as reported by Ben Seal in his recent Law Weekly article titled, "Texting a Distracted Driver Could Now Bring Liability," another movement for an expansion of the law comes in the form of a recent Lawrence County Court of Common Pleas decision in the case of Gallatin v. Gargiulo, PICS No. 16-0520 (C.P. Lawrence Co. March 9, 2016 Hodge, J.).

In Gallatin, Judge John W. Hodge, in an apparent decision of first impression in Pennsylvania, overruled preliminary objections and allowed negligence and wrongful death claims to proceed, in part, against two defendants on the basis that they were texting a driver as she crashed into a motorcyclist in a fatal accident. The plaintiff also sued the defendant driver and others.
In his decision, Hodge referenced a 2013 ruling from a New Jersey appeals court in the case of Kubert v. Best, No. A-1128-12T4 (N.J. Super. Ct. 2013), that appears to be the first case in the country to allow for a such a cause of action to proceed against texters who distract drivers by sending text messages to the driver.

The court in Kubert more specifically held that the sender of a text message may be held liable in New Jersey for injuries caused by the distracted driving of the text recipient if the injured party plaintiff can prove that the sender of the text knew, or had special reason to know, that the recipient was driving, would view the text while driving, and would be distracted by it.

While the Kubert court held that such a claim is legally cognizable, it did affirm the trial court's granting of summary judgment to the defendant after finding that the plaintiff had not shown sufficient evidence to allow that claim to proceed to the jury. More specifically, as the content of the text messages were not provided to the court, there was no evidence presented that the defendant's text sender knew that the defendant driver was driving at the time the two were texting one another.
In the Lawrence County case of Gallatin, the complaint alleged that the defendant driver was traveling behind the plaintiff's decedent while texting on her phone in violation of Section 3316 of the Motor Vehicle Code. The complaint alleges that the defendant driver was thereby distracted and inattentive at the time of the accident.

The complaint in Gallatin also named the two individuals who were allegedly texting the defendant driver at the time of the accident. In this regard, the plaintiff alleged in the complaint that the defendant driver was "reading and/or responding to a text message" sent by the texting defendants when the fatal rear-end accident occurred.

One of the texting defendants filed preliminary objections based upon Pennsylvania Rule of Civil Procedure 1028(a)(4), asserting that the claims were insufficient as a matter of law. That defendant more specifically asserted that there is no statute or case law imposing a duty of liability on a person who merely sends a text message to a person operating a vehicle.

While the court in Gallatin glossed over the fact-pleading requirements of the Rules of Civil Procedure and allowed the claim to proceed beyond the preliminary objections stage, the court also noted that, for liability to attach against a text-sending defendant, that individual must know or have reason to know at the time of the accident that the person they are texting is driving, will view the text, and will thereby be distracted by the text.

Negligence In the Air

In other words, the Gallatin case liberally allows a claim for negligence to proceed when there is simply negligence literally in the air in the form of text message signals flying back and forth between the text sender and the driver.

Currently, there is no Pennsylvania statute circumscribing when text messages can be sent by one person to another. Such a law would likely be ruled an unconstitutional limitation on one's right to freely communicate with others in any event. Nor is there any common-law basis to extend liability for causing a car accident to a third person not even present at the scene.

In his famous Palsgraf decision, Justice Benjamin N. Cardozo wrote that "the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one's neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform."

Similarly with respect to text messaging, the notion that one should not send a text message to another person without first determining that the recipient is not driving is too extravagant a notion to expect human nature to conform to the idea. Rather, to paraphrase Cardozo, the wrongdoer as to the injured party plaintiff should only be the driver who chooses to look down and read the text while driving, not the sender of the text who sends it without suspicion of any danger.

A slippery slope

This Kubert and Gallatin decisions create a slippery slope and stretches the malleable concepts of duties owed and foreseeability of injury in negligence actions to unrecognizable bounds.

While the Gallatin and Kubert decision note a standard whereby liability attaches if the text sender knew, or should have known, that the recipient was driving, would read the text, and would thereby be distracted, it is likely that trial courts, as did the Gallatin court, would err on the side of caution in the face of demurrers and allow such claims to proceed beyond the preliminary objections stage and into discovery even if facts were not specifically pleaded in the complaint to meet this standard.

The increasing costs of having to defend against such claims through discovery to a motion for summary judgment would be passed onto consumers in the form of increased auto insurance premiums. In the end, allowing such claims to proceed against texters goes against the recognized public policy and legislative concern in Pennsylvania in favor of efforts in the law to decrease the spiraling consumer costs of automobile insurance.
These increasing costs of litigation may expand further if the slippery slope created by the Kubert and Gallatin slips into other additional classes of potential auto accident defendants as a result of these decisions.

For example, if the sender of a text could be sued in this scenario, is the next slip down the slope to allow telecommunications companies to also be sued for allowing us to all have the ability to send text messages? The question would become, but for the telecommunications company creating the ability for text messages to be sent, would the plaintiff have been injured? Perhaps Verizon could change their motto to, "Can you sue me now? Can you sue me now?"
 
How long then until a lawsuit is allowed against the manufacturers of GPS devices on the basis that the voice instructions made the driver look at the device at which point there was an accident?
Why not then could even a front-seat passenger of the defendant's vehicle be sued simply because he or she was talking to the thereby distracted defendant driver who looked over at the passenger at the time of an accident?

While not the barometer of negligence, running any of these potential lawsuit defendant scenarios across a lay person, i.e. the reasonable person, would likely elicit the response, "that's just ridiculous." The notion that a sender of a text could be held liable to a person injured in a car accident because the driver chose to read the text while driving falls within these types of untenable lawsuit claims.

Simply put, where can the line of liability be drawn in a concrete and workable fashion in negligence actions if outlier decisions like Kubert and Gallatin are allowed to stand? The orbit of liability in car accident cases should circle the negligent driver who took his or her eyes off the road by looking over at a passenger, by looking at a GPS device, or by making the poor choice of picking up a cellphone and looking down to read a text. •

                                                   

 

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 www.TortTalk.com.

Judge Zulick of Monroe County Enforces Expert Deadline

In his recent decision in the case of Rushen v. Hordis, No. 5760 CV 2013 (C.P. Monroe Co. Dec. 17, 2015 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas granted a Defendant’s Motion In Limine to preclude the Plaintiffs from calling expert witnesses due to a Plaintiff’s failure to produce expert reports within the deadline required by a discovery Order of court.  

According to the Opinion, earlier in the case, the defense requested a court conference to establish discovery and expert report deadlines.   The court entered an Order after that conference setting such deadlines. 

When the Plaintiff failed to produce their expert reports by the Plaintiff’s expert report deadline, the defense filed the Motion In Limine at issue seeking to preclude the Plaintiff from thereafter relying upon an expert report at trial.   According to the Opinion, although the Plaintiff’s counsel appeared at oral argument on the Defendant's Motion in Limine, no response or brief in opposition to the Motion was filed by the Plaintiff.   Plaintiff’s counsel indicated to the court at the argument that the Plaintiff was attempting to comply with the discovery Order of Court.  

Judge Arthur L. Zulick
Monroe County
 

Judge Zulick noted that the primary purpose of Pennsylvania Rules of Civil Procedure 4003.5 was to avoid unfair surprise to an adversary concerning the facts and substance of an expert’s proposed trial testimony.  Judge Zulick stated that the Scheduling Order was entered to assure that all counsel receive discovery and expert reports in a timely fashion and so as to not to delay trial and to allow for dispositive motions to be filed well in advance of the trial date.  

The court found that the Plaintiffs had disregarded the court’s Scheduling Order.   Judge Zulick noted that, if any party needed any additional time to comply with the Order, a timely filed Motion to Extend could have properly raised the issue before the court.

Given that the date for trial was less than sixty (60) days away and the Plaintiffs had not yet provided the defense with the expert opinions that the Plaintiff intended to rely upon at trial, the court granted the Defendant’s Motion In Limine.  

Anyone desiring a copy of this Opinion by Judge Zulick in the case of Rushen v. Hordis may contact me at dancummins@comcast.net.


Commentary:  More and more attorneys are running to court to secure Scheduling Orders from courts with deadlines for discovery and expert discovery, which the courts seem to summarily grant over to objections to the same.  Perhaps decisions like this one will make cause hesitation for fear that the requested deadlines could come back to haunt the parties, including the party who pushed for the deadlines in the first place. 

The better practice may be to push the case forward in the absence of deadlines by way of motions to compel and later threats of sanctions for violations of discovery orders of court rather than attempting to jam up an opposing counsel, or getting jammed up yourself, by discovery deadlines requested from the court.
 

Judge Nealon of Lackawanna County Tackles Numerous Asbestos Litigation Issues

In his recent 71 page Opinion in the case of Horst v. Union Carbide Corp. et al., No. 15 CV 1903 (C.P. Lacka. Co. April 27, 2016 Nealon, J.), Judge Terrence R. Nealon tackled a variety of issues raised in motions for summary judgments filed by twelve different defendants.

The Opinion contains useful nuggets of analysis addressing unique case law establishing special standards for medical causation, lay opinion testimony, the statute of repose, and punitive damages in asbestos litigation.

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

Tort Talk Post-Koken Scorecard

The Tort Talk Post-Koken Scorecard has been updated with the cases uncovered since November of 2015. 

The Post-Koken Scorecard, which lists decisions on a wide variety of pleadings, discovery, and trial issues in Post-Koken auto accident litigation matters, can always be freely access by going to the Tort Talk Blog at www.TortTalk.com, scrolling down the right hand column until you see "Post-Koken Scorecard"--click on the date under that title and you will be taken to the Scorecard.

Here's a LINK  to the Scorecard if you want to check it out now.

Please forward any Post-Koken decisions you generate or hear about so that the Scorecard can be updated for the benefit of all as we try to formulate a predictable common law in this emerging area of the law.  Thanks.

Several Products Liability Issues Addressed by Judge Munley of Pennsylvania Federal Middle District Court

In his recent products liability decision in the case of Bailey v. B.S. Quarries, Inc., No. 3:13-CV-3006 (M.D. Pa. March 31, 2016 Munley, J.), Judge James M. Munley of the Middle District Federal Court of Pennsylvania addressed cross  Motions for Summary Judgment filed in a products liability case.  

On one of the issues presented, the court found that, due to the actions of one of the Defendants, the Defendant was equitably estopped from claiming that it was the Plaintiff’s employer and, therefore, immune from suit under worker's compensation immunity laws.   The Court stated that defendants may not manipulate the seal of immunity in an effort to shelter whichever of their entities may be at greatest risk.  

The court also noted that, under Pennsylvania law, the fact that an accident was not witnessed does not make proof of causation impossible.   Here, the court found that the Plaintiff’s accident reconstruction expert provided sufficient causation testimony to allow the case to proceed towards a jury.  

Judge Munley also noted that sufficient evidence presented of a disregard of a known safety risk also supported allowing the plaintiff's claim for punitive damages to proceed.   Judge Munley found that the evidence presented that the product manufacturer allegedly omitted a known safer method of maintenance from its operator’s manual permitted the claim for punitive damages to go forward.  

Judge Munley also reaffirmed the current status of products liability law holding that, under the Pennsylvania Supreme Court decision in Tincher, the prior decisions of Azzarello and its progeny were no longer good law.  

Rather, the Plaintiff must prove a risk-utility analysis supporting claims that harm was caused by a defective condition or, in the alternative, must prove evidence of an ordinary consumer’s expectations as to the risk presented by the product.   The Plaintiff was found to have failed in this regard in this case and, as such, her motion for summary judgment on that particular issue was denied.



Judge Munley's Opinion can be viewed HERE and his corresponding Orders can be viewed HERE.
 

I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The Drug and Device Law Blog.    

 

Judge Nealon of Lackawanna County Allows For Expert Opinion Testimony Regarding Alleged Pain and Suffering in Stillbirth Med Mal Action

In the case of Page v. Moses Taylor Hospital, No. 11 CV 1402 (C.P. Lacka. Co. May 6, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a defense motion in limine raising Frye issues pertaining to the Plaintiff's proposed expert testimony by an expert in neonatal and perinatal medicine.

This medical malpractice action arises out of the stillbirth of twins at 33.4 gestational age.  The court ruled that the Plaintiff's expert in neonatal and perinatal medicine would be permitted to testify that the stillborn twins experienced pain and suffering from the effects of asphyxia attributable to their mother's eclamptic seizure and placental abruption.

Judge Nealon noted that the Plaintiff had produced medical research and articles, including some articles from the New England Journal of Medicine, that supported the proffered testimony and, as such, the court found that the Plaintiff's proposed evidence was acceptable under the Frye standard in that there was no basis to preclude this opinion testimony as novel scientific evidence that has not gained general acceptance in the medical field.  Accordingly, the court ruled that a Frye hearing was not warranted on the matter.

The court noted that the evidence on this issue submitted by both sides would be allowed at trial and  would be left for the jury to weigh as conflicting expert testimony.

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

Summary Judgment Denied in Premises Liability Case for Wheelchair Left in Hallway

In his recent decision in the case of Achille v. St. Luke’s Physicians Group, PICS Case No. 16-0479 (C.P. Monroe Co. Feb. 4, 2016 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas denied a Motion of Summary Judgment in a premises liability case after finding that genuine issues of material fact existed regarding whether an unoccupied wheelchair that the Plaintiff collided with outside her doctor’s office was an unreasonably dangerous condition and whether the Defendant had notice of the same.  

According to a summary of the Opinion, the Plaintiff went to a medical appointment at the Defendant’s office.   The Plaintiff, who had previously suffered a stroke, used a motorized wheelchair that she was able to control herself.    The Plaintiff was also essentially blind after her stroke. 

An occupied wheelchair was parked in the entrance way or hallway outside the doctor’s office.   As the Plaintiff’s aide held open the door to the office, Plaintiff’s wheelchair collided with the unoccupied wheelchair, allegedly resulting in injuries to the Plaintiff.  

The Plaintiff filed suit and the Defendants eventually filed a Motion for Summary Judgment.   The defense argued that the unoccupied wheelchair was not an unreasonably dangerous condition, but rather was an obvious and avoidable condition.  

The court denied the Motion for Summary Judgment as genuine issues of material fact existed and given that the Defendants were relying primarily on oral testimony.   The court noted that the parties disagreed over the interpretation of the Plaintiff’s testimony on the issues presented.   Judge Williamson also found that the Plaintiff’s testimony was subject to a credibility determination by the jury.   

The court also found that there was a question of whether it was reasonable for the Defendant, a provider of medical services for patients with disabilities to have anticipated that a large, unoccupied wheelchair within the path of the only handicapped entrance would be a danger to, or would be unnoticed by, those patients.  The judge found that this issue was for the jury to determine.  

Judge Williamson also stated that there are genuine issues of material fact on whether or not the Defendant had actual or constructive notice of the presence of the unoccupied wheelchair near the entrance way.   This was another issue that should be left for the jury’s consideration.  

 

A copy of this decision may be secured by contacting the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and paying a small fee.  

 

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (April 26, 2016). 

Judge Williamson of Monroe County Keeps Nursing Home Personal Injury Case in Court in Light of 'Unconsionable' Arbitration Clause

In the Monroe County Court of Common Pleas case of Santiago v. Whitestone Health Care Group, LLC, No. 5281 Civil 2015 (C.P. Monroe Co. Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed various issues surrounding an arbitration agreement in a lawsuit between a decedent’s family and a nursing home facility.  

The central issue before the court is whether the trial court lacked jurisdiction over the matter due to an arbitration agreement entered into by the parties when the decedent moved into the nursing home.  The court denied the Defendant’s Preliminary Objections and rejected the argument that the trial court lacked jurisdiction.  

Judge David J. Williamson
Monroe County

In so ruling, Judge Williamson noted that arbitration clauses in contracts are not applicable to wrongful death actions. 

As such, the court found that the Defendants failed to show that either the patient/decedent signed the arbitration agreement or that an agency relationship existed between the patient/decedent and the person who signed the arbitration agreement, who was the decedent’s daughter.  

Judge Williamson stated that there can be no “knowing waiver” of a right to a jury trial by a patient who is unable to review and sign such a document such as the decedent herein who presumably was not competent to sign the document.  

Rather, for an agent to sign and bind the patient, the agent must have the authority to do so by righting or by acts or by conduct clearly implying an agency relationship.  Finding that the Defendant’s failed to present any such evidence that the daughter was authorized to bind her mother to the arbitration agreement and the resulting waiving of a right to a jury trial, the court found that the Defendants failed to meet their burden of proof on the issue of an agency relationship.  

Judge Williamson reiterated that the arbitration agreement cannot apply to the wrongful death claim and also ruled that the survival claim should not be severed.  

The court therefore found that the Defendants were barred from enforcing the arbitration agreement given that the matter before the court involved both wrongful death and survival claims.   See Op. at 3-4 citing Taylor v. Extendicare Health Facilities, Inc., 1313 A.3d 317 (Pa. Super. 2015), allocator granted, 122 A.3d 1036 (Pa. 2015).  

Judge Williamson reasoned that the Pennsylvania courts have ruled that a wrongful death action, under Pennsylvania statutory law, is a matter in which the trial court maintains jurisdiction even in the face of a valid binding arbitration agreement because a wrongful death claim accrues after the decedent’s death with beneficiaries who are not a party to arbitration agreement.   Here, Judge Williamson stated that even if the Defendants argue that the decedent’s daughter is a beneficiary who signed the arbitration agreement, the daughter was not a party to the arbitration agreement as she allegedly signed on behalf of the patient/decedent.  

Judge Williamson also noted that Pennsylvania cases have upheld a finding that a survival action should not be severed from a wrongful death action for purposes of arbitrating the survival action alone.   Accordingly, the court found that the arbitration agreement had no binding effect in this case on either the wrongful death or the survival action.

Lastly, the court found that the arbitration agreement before it was unconscionable in that it was unreasonably favorable to the drafter of the agreement.  

For these reasons, the court overruled the Defendant’s Preliminary Objections and allowed the case to remain within the Monroe County Court of Common Pleas as opposed to arbitration.  

 

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.  I send thanks to Attorney David A. Miller, Esquire of the Frackville, Pennsylvania office of Michael J. O’Connor and Associates, LLC for bringing this case to my attention.  

 

 

 

REGISTRATION FORM FOR LACKAWANNA PRO BONO GOLF TOURNAMENT SET FOR JUNE 10, 2016

The Lackawanna Pro Bono Golf Tournament is a month away.  The Golf Tournament is set for June 10, 2016 at the Blue Ridge Trail Golf Club in Mountaintop, Pennsylvania with a shotgun start at 12:30 p.m.

The Golf Tournament will be preceded by a CLE program and Lunch at 11 a.m. that I will present entitled "Golf Lessons: Tips for Professionalism and the Ethical Practice of Law."  I will utilize video clips in a hopefully entertainingly quick hour-long ethics credit CLE that will touch on a variety of ethical rules as well as the PBA's Working Rules of Professionalism.

If you are not a golfer, you can attend the CLE and Lunch at a lesser price and still thereby support Lackawanna Pro Bono.

Please consider supporting Lackawanna Pro Bono, Inc. at this event.

Here is a LINK to the Registration form to participate in the Golf Tournament and/or the CLE program.

Judge Munley of Federal Middle District Allows Claim for Negligent Infliction of Emotional Distress to Proceed

In his recent decision of Caple v. Sears Dept. Stores, No. 3: 15 - CV - 1666 (M.D. Pa. April 15, 2016 Munley, J.), Judge James M. Munley of the Middle District of Pennsylvania denied a Defendant’s partial Motion to Dismiss filed against a negligent infliction of emotional distress claim.  

In so ruling, Judge Munley found that an allegation of “severe emotional distress” in the Complaint was enough, under federal pleadings law, to plead the type of debilitation and extended emotional distress necessary to support a claim for negligent infliction of emotional distress.  

Judge Munley's Opinion can be viewed HERE  , and his corresponding Order HERE.

I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The Drug and Device Law Blog for bringing this case to my attention.    

 

ARTICLE: What Attorneys Hope Judges Know

Here is a LINK to a article of mine that appeared in the current edition of the Pennsylvania Lawyer magazine entitled "What Attorneys Hope Judges Know."

Many articles have been written providing tips to attorneys to improve their practice, including some articles written by judges.  This article takes the opposite perspective and reviews characteristics that attorneys might hope to see from judges to improve the practice of law for all involved.

Dram Shop Liability Arises Both From Statute and Common Law

In a recent decision in the case of Jones v. Scavone, No. 2015-CV-8830 (C.P. Luz. Co. April 15, 2016 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas issued a detailed Order in which she denied Preliminary Objections filed against a Plaintiff’s Complaint alleging violations of the Dram Shop Act along with common law negligence claims against, among others, a tavern defendant.  

In overruling the Preliminary Objections, the court specifically stated that a “tavern owner owes a common law duty independent of statute to conduct themselves with reasonable care and prudence dispensing alcohol and to protect others from visibly intoxicated persons.”   

 

Anyone wishing to review this Order may contact me at dancummins@comcast.net.

 

 

 

 

Superior Court Rules That Orthopedist Can Serve As Expert in Med Mal Action Against a Podiatrist

In its recent decision in the case of Price v. Catanzariti, No. 1886 WDA 2014, 2016 Pa. Super. 26 (Pa. Super. March 30, 2016 Ford, Elliot, Musmanno, Bowes, JJ.) (Op. by Ford Elliot, P.J.E.)(Concurring and Dissenting Op. by Bowes, J.), the Pennsylvania Superior Court ruled that an orthopedic surgeon may serve as an expert in a case where the Defendant is a podiatrist in a medical malpractice action.  

The court ruled that an orthopedic surgeon, even one who has not practiced in several years, has the specialized knowledge sufficient to enable the expert to testify on issues pertaining to podiatric surgery.   Therefore, the court found that the Plaintiff’s expert witness was qualified to testify such that the compulsory non-suit entered by the trial court below would be reversed.

In its decision, the Superior Court noted that the portions of the MCARE Act pertaining to expert qualifications only applies to physicians and, therefore, not podiatrists.   Since the Defendant in this matter was a podiatrist, the MCARE Act was found to be inapplicable and the qualifications for expert witness were to be judged under the more lenient standards set forth under common law pertaining to qualified experts.  

The Majority Opinion by Judge Ford Elliott can be read HERE.

Judge Bowes Concurring and Dissenting Opinion can be read HERE


I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The DRUG AND DEVICE LAW BLOG.     

Source of image: www.mainepodiatrists.org.

 

 

Happy Birthday Tort Talk

 

It was on May 4, 2009 that the first Tort Talk Blog post was written -- Tort Talk is now 7 years old.

I send thanks to all the contributors of court decisions for me to write up and to all the readers of the Blog.

Judge Mariani Remands Issue Regarding Carrier's Demand for Final Medicare Lien Letter Before Payment of Settlement Funds

In a decision handed down in the Federal Middle District Court of Pennsylvania case of Mikiewicz v. Hamorski and Erie Insurance Exchange, No. 3:15-CV-02426 (M.D.Pa. May 3, 2016 Mariani, J.), Judge Robert D. Mariani granted a Plaintiff's Motion for Remand in a case involving a carrier's demand that the Plaintiff secure and produce a final lien letter from Medicare prior to any need by the carrier to issue a settlement payment following a motor vehicle accident.

This matter was originally filed by the Plaintiff in the Lackawanna County Court of Common Pleas as a Petition assterting that the carrier's requirement that the Plaintiff satisfy certain conditions as part of the settlement, i.e. produce a final lien letter from Medicare, violated Pa.R.C.P. 229.1 which requires that settlement proceeds be paid within twenty days of the execution of a Release.

The Plaintiff followed that Petition with a Motion to Enforce the Settlement in the state court.  The same day that Motion was argued, the carrier filed an Answer to the Motion and also filed paperwork to remove the case to federal court.

The carrier asserted that removal was proper given that Plaintiff's claim involved a federal statute, the Medicare Secondary Payer Act ("MSPA"), thereby giving rise to federal question jurisdiction.  The carrier also asserted that removal was appropriate because the MSPA is an extraordinary statute that completely pre-empted state law.

The Plaintiff responded by filing the federal court Motion to Remand at issue.  As noted, the court granted the Plaintiff's Motion.

Judge Robert D. Mariani
M.D. Pa.
 

In so ruling, Judge Mariani found that the Plaintiff's claims did not arise under Federal law as asserted by the carrier.  Rather, the court found, the carrier raised federal law as a defense to the Plaintiff's claims.  The court noted that a defendant can not transform a matter into a federal question case by injecting a federal law defense into the matter for purposes of the removal issue.

Judge Mariani also rejected the carrier's contention that the MSPA completely preempted State law.  The court reviewed the "complete pre-emption doctrine" and found that the elements of that doctrine had not been met under circumstances presented in this matter.  Judge Mariani cited to several Third Circuit decisions holding that a state law cause of action that references or involves the MSPA or the Medicare statute is not removable to federal court because it does not raise a federal question.

Accordingly, the court granted the Plaintiff's Motion for Remand and sent the case back to state court.  In so ruling, the court also granted attorney's fees, costs and expenses after finding that the carrier lacked an objectively reasonable basis for the removal.  The court noted that not only had the carrier failed to cite case law in support of the removal, the court also pointed out that the carrier had been repeatedly sanctioned in the past for making similar unsuccessful arguments regarding the MSPA.

Anyone wishing to review Judge Mariani's opinion in Mikiewicz may click this LINK.

I send thanks to the prevailing Plaintiff's attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.

NEGLIGENCE IS IN THE AIR: Lawrence County Judge Allows Case to Proceed Against Persons Who Texted Driver Involved in Accident While Using Cell Phone

In the Lawrence County case of Gallatin v. Gargiulo, No. 10401 of 2015, C.A. (C.P. Lawrence Co. March 9, 2016 Hodge, J.), Judge John W. Hodge, in an apparent case of first impression in Pennsylvania, overruled Preliminary Objections and allowed negligence and wrongful-death claims to proceed, in part, against two men who were texting a driver as she crashed into a motorcyclist in a fatal accident.

In his decision, Judge Hodge referenced a 2013 ruling from a New Jersey appeals court in the case of Kubert v. Best which appears to have been the first case in the United States to allow a cause of action against those who knowingly distract drivers by sending text messages. 

That New Jersey decision was mocked as being too expansive on the issue of causation in a Tort Talk post that can be read HERE (and which contains a Link to the New Jersey decision).

In Gallatin, the Complaint alleged that the Defendant driver was traveling behind the Plaintiff’s decedent while texting on her phone in violation of Section 3316 of the Motor Vehicle Code.  The Complaint alleges that the Defendant driver was thereby distracted and inattentive at the time of the accident. 

The Complaint also named the two individuals who were texting the Defendant driver at the time of the accident.  In this regard, the Plaintiff alleged in the Complaint that the Defendant driver was "reading and/or responding to a text message" sent by the texting Defendants when the accident occurred.  The Plaintiff also averred that the texting Defendant knew or should have known that the Defendant driver was driving at the time and that the texting Defendant knew or should have known that the Defendant driver would read the text sent while driving.

One of the texting Defendants filed preliminary objections based upon Pennsylvania Rule of Civil Procedure 1028(a)(4), asserting that the claims were insufficient as a matter of law.  That Defendant more specifically asserted that there is no statute or case law imposing a duty of liability on a person who merely sends a text message to a person operating a vehicle.

While the court in Gallatin allowed the claim to proceed beyond the preliminary objections stage, the court also noted that, for liability to attach against a text-sending defendant, that individual must know or have reason to know at the time of the accident that the person they are texting is driving and will view the text.

Anyone wishing to review the Lawrence County decision in Gallatin v. Gargiulo may click this LINK.

Source:  “Texting a Distracted Driver Could Now Bring Liability” by Ben Seal, Pennsylvania Law Weekly (April 29, 2016).


UPDATE:  The case against the sender of the text was later dismissed by Stipulation by the Plaintiff shortly before a Motion for Summary Judgment on the issue was to be argued to the court.  Defense counsel was prepared to argue that the Plaintiff failed to produce facts that the sender of the text knew that the recipient was driving at the time the text was sent.  See the updated Tort Talk post HERE.

Zero Verdict for Pain and Suffering Upheld Even When Medical Expenses Awarded

In the case of Zielke v. Mullen, PICS Case No. 16-0406 (C.P. Del. Co. Dec. 18, 2015 Green, J.), the court issued a Rule 1925(a) Opinion asserting that it had properly denied the Plaintiff’s Motion for Post Trial Relief and/or Request for a New Trial on the issue of non-economic damages after a trial in which the jury entered a zero award for the Plaintiff’s non-economic damages claims in a slip and fall case.  

According to the Opinion, the jury ruled in favor of the Plaintiff on the liability issues but declined to award any non-economic damages.  

In support of its decision to deny the Plaintiff’s request for post-trial relief, the court cited to case of Davis v. Mullen, as controlling.  In Davis, the Pennsylvania Supreme Court affirmed the denial of a new trial after jury’s verdict awarding zero non-economic damages.   The court in Davis emphasized deference to a jury’s verdict and confirmed the possibility that a jury can award medical expenses without awarding damages for pain and suffering in appropriate circumstances.  

In this Zielke case, the court noted that the jury, as the ultimate finder-of-fact, was free to believe or disbelieve any of the evidence presented.  

The trial court also rejected the Plaintiff’s argument that there should be a per se rule barring juries from awarding medical damages without a corresponding award for pain and suffering.   The trial court in Zielke noted that such an argument was rejected by the Pennsylvania Supreme Court in Davis v. Mullen decision.  

Moreover, in this case, the trial court stated that the evidence at trial regarding the Plaintiff’s numerous prior injuries and medical conditions gave the trial court a reasonable basis to conclude that the jury either found that the Plaintiff did not experience pain and suffering as a result of the subject incident, or that any alleged pain and suffering was a result of the Plaintiff’s pre-existing conditions.  

A copy of this case may be secured by calling the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and paying a small fee.  
 

Source:  “Digest of Recent Opinions.”   Pennsylvania Law Weekly (April 5, 2016).