Friday, September 30, 2016

Judge Nealon Addresses Two Schools of Thought Defense in Med Mal Case

In his recent decision in the case of Cosklo v. Moses Taylor Hospital,, No. 2007-C-5484 (C.P. Lacka. Co. Sept. 23, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Motion to Amend its Answer and New Matter to the Plaintiff’s Complaint.  

According to the Opinion, the Defendant filed this Motion after the completion of discovery, the production of the parties’ expert reports, and the establishment of a date certain for trial.   The Defendant sought leave of court under Pa. R.C.P. 1033 to amend his responsive pleading to assert the “two schools of thought” doctrine as an affirmative defense and to pursue a crossclaim against the Co-Defendants in this obstetrical malpractice action.  

Judge Nealon noted that, under the Rules of Civil Procedure and applicable Pennsylvania law, the amendment of a pleading should be liberally allowed by the court unless it will cause unfair prejudice to an adverse party or the proposed amendment would be against a rule of law such that the parties seeking to amend will be unable to state a cognizable claim or defense based upon the amendment.

The court noted that the “two schools of thought” defense is available to a physician at trial only if there is expert evidence that a considerable number of recognized and respected physicians support the course of treatment that was provided by the defendant.  

Reviewing the record before him, Judge Nealon noted that the defense expert’s report did not provide notice to the Plaintiffs that the expert will claim that the medical care which the Defendant physician chose to provide is advocated by a considerable number of recognized and respected obstetricians.   Accordingly, the court noted that any “two schools of thought” evidence would be subject to being precluded under Pa. R.C.P. 4003.5(c).  

Consequently, the court ruled that, since the Motion to Amend was presented after the deadline for the production of expert reports, and given that the Defendant physician is presently unable to assert a “two schools of thought” defense based upon the existing record, the Motion to Amend seeking to raise that defense was found to be against rule of law and was, therefore, denied.  

However, the court further ruled that, since the Co-Defendants had not identified any prejudice that they would suffer from the belated assertion of this type of a crossclaim, the Motion to Amend was granted to the extent that it sought to assert a crossclaim against the Co-Defendants. 

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

Thursday, September 29, 2016

Cross-Examination of Life Care Planning Expert on Affordable Care Act Precluded by Collateral Source Rule

In his recent decision in the case of Bernheisel v. Mikaya, No. 3:13-cv-01496 (M.D. Pa. Aug. 9, 2016 Mariani, J.), Judge Robert D. Mariani addressed a number of Pre-Trial Motions in Limine filed by Defendants in this medical malpractice action including a request for a bifurcation of trial and motions seeking to preclude and limit medical expense and future economic damages claims.  

The Opinion is notable with respect to Judge Mariani’s recitation and application of Federal Rule of Civil Procedure 42(b) pertaining to motions to bifurcate trials.   Here, the Defendants requested a bifurcation of the liability issues from the damages issues.   Using his broad discretion on the matter, Judge Mariani denied this motion.  

With regards to the Motions pertaining to the economic damages claims, Judge Mariani ruled, in part, that he would defer ruling on the Defendant’s Motions relative to the Plaintiff’s medical cost claims until the time of trial.   The Court did generally note that Pennsylvania law requires the Plaintiff to produce evidence which establishes this type of claim with reasonable certainty and does not require the Plaintiff to establish a precise amount of damages.  

The Defendants also sought the permission of the court to cross-examine the Plaintiff’s life care planning experts on the future medical expenses claims by crossing the expert and introducing evidence pertaining to Medicaid, Medicare, and the Affordance Care Act.  

Judge Mariani, citing, in part, to the case of Deeds v. University of Pennsylvania Medical Center, noted that the collateral source rule precludes counsel from pursuing certain inquiries, including raising an individual’s access to Medicare, Medicaid, and benefits under the Affordance Care Act when opposing a future medical expenses claim.  

As such, the court in Bernheisel precluded the defense from cross-examining the Plaintiff’s life care planning expert on these issues.  

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

To review the February 9, 2015 Tort Talk post on the Deeds v. University of Pennsylvania Medical Center case, which contains a Link to that decision, click HERE.

The prevailing Plaintiff’s attorney in this matter was Attorney Max Kennerly, Esquire of the Philadelphia law firm of Kennerly Loutey, LLC.  I send thanks to Attorney  Michael A. O’Donnell of the Kingston, Pennsylvania O’Donnell Law Offices for bringing this decision to my attention.   

Wednesday, September 28, 2016

Another Dauphin County Order Compelling Production of Virtual Surveillance (Facebook Info, etc.) Before Deposition of Plaintiff is Completed

The Dauphin County Court of Common Pleas has issued another decision compelling a defendant to produce virtual surveillance, i.e. online surveillance of a plaintiff's social media activity on Facebook, Instagram, etc, prior to the deposition of the plaintiff.  The Order only was handed down in the case of Appleby v. Erie Ins. Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, 2016 Dowling, J.).

In the Order the court again also held that any ordinary surveillance completed of the Plaintiff need not be produced until after the deposition was completed.

Anyone wishing to review this Order may click this LINK.

The other Tort Talk posts on the other previous Dauphin County decisions in other cases in this regard, along with Links to those decisions can be viewed HERE and HERE.

I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.

Tuesday, September 27, 2016

Lackawanna Trial Court Grants Motion to Preclude Cumulative Expert Opinion Testimony in Med Mal Case

In his decision in the case of Oscarson v. Moses Taylor Hospital,, No. 2013-CV-1523 (C.P. Lacka. Co. Aug. 26, 2016 Nealon, J.), the court addressed a Plaintiff’s Motion In Limine seeking to limit alleged cumulative expert testimony in a medical malpractice litigation.  

By way of background, this medical malpractice litigation involved claims against various Defendants under allegations that a doctor interpreted the results of a needle biopsy as malignant, after which the Plaintiff underwent various surgeries only to allegedly find out from post-operative pathology studies that the surgical specimens were non-malignant.  

In a Pre-Trial Motion In Limine to preclude cumulative medical expert testimony, the Plaintiff sought to bar separate Defendants from presenting the expert testimony of two (2) separate pathologists at trial.   The Defendant countered with an argument that there is no requirement that multiple Defendants in an action must share or utilize the same standard of care expert in their defense.  

Judge Terrence R. Nealon
Lackawanna County
After his review of the issues presented and applicable Rules of Evidence and law related thereto, Judge Nealon noted that the expert pathologists at issue expressed essentially identical opinions from the same clinical perspective as pathologists.  

The court also noted that this litigation did not involve separate claims against multiple pathologists who could be jointly or severally liable for their independent negligence.  

Ultimately, the court found that there is no need for the separate Defendants to offer duplicate expert testimony of the same character from the same clinical perspective.  

The court found that allowing such evidence would result in the needless presentation of cumulative evidence in violation of Pa. R.E. 403.  

In so ruling, the court noted that testimony by medical experts with different specialties and different clinical perspectives would have presented a different scenario and would have been regarded as corroborative, rather than needlessly cumulative evidence.  

Overall, the court granted the Plaintiff’s Motion In Limine to preclude cumulative medical expert testimony under the circumstances presented in this matter.  

Anyone wishing to review this Opinion by Judge Nealon in the Oscarson case may click this LINK.

Monday, September 26, 2016

Lunchtime is Your Time

Here's an article I came across that I thought would be worth sharing that gives ideas as to what successful people do with their lunch hour.  The article "12 Things Successful People Do During Their Lunch Break" by Jacquelyn Smith and Yu Han from the Business (9/26/16) can be read HERE.

Friday, September 23, 2016

Summary Judgment Granted in Fall Down Steps Case

In the Lehigh County Court of Common Pleas decision of Vasilik v. Voipoch, No. 2015-CV-904 (C.P. Leh. Co. June 7, 2016 McGinley, J.), the court entered summary judgment in favor of an out of possession landlord Defendant in negligence action involving a slip and fall on steps allegedly due to a lack of a handrail.    

In so ruling, the court noted that the language of the commercial lease permitted the landlord to make repairs but did not require him to do so.  

The court otherwise noted that the landlord did not undertake to make general repairs to the premises by previously installing a handicap ramp, paving the parking lot, installing landscaping, and/or installing a handrail between other floors as such improvements were note deemed to establish a general undertaking of property repair.  

Anyone wishing to review this decision may click this LINK.

Source:  “Court Summaries,” Pennsylvania Bar News (August 22, 2016) By Timothy L. Clawges.  

Wednesday, September 21, 2016

Superior Court Reaffirms Requirement of Expert Medical Evidence to Support Intentional Infliction of Emotional Distress Claims

In the case of Gray v. Huntzinger, No. 1882 EDA 2015, 2016 Pa.Super. 194 (Pa.Super. Aug. 30, 2016 Gantman, P.J., Lazarus, J., and Platt, J.)(Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court erred by not entering a JNOV in favor of a defendant on the Plaintiff's intentional infliction of emotional distress claim.

This case arose out of incidents related to the termination of the Plaintiff from his employment.

The Superior Court noted that the Plaintiff failed to present expert medical testimony at trial in support of the intentional infliction of emotional distress which was a violation of the Pennsylvania Supreme Court's ruling in Kazatkzy v. King David Mem'l Park Inc., 527 A.2d 988 (Pa. 1987), in which that Court  held that, to the extent the tort of intentional infliction of emotional distress was recognized in Pennsylvania, recovery was limited to those cases in which competent medical evidence of emotional distress was presented by the Plaintiff.

Anyone wishing to review the Superior Court's decision in Gray may click this LINK.

Source:  "Instant Case Digest," Pennsylvania Law Weekly (Sept. 13, 2016).

Tuesday, September 20, 2016

Tips for Persuading Others To Your Point of View

I came across this article by a Dr. Travis Bradbury entitled "Powerful Habits of Super Persuasive People" that I thought was worth sharing.

Whether you are attempting to persuade an opposing counsel or party to settle a matter with you, prevail upon a judge to adopt your legal position, or even convince a jury to accept your client's position at trial, the tips in this article may carry the day.

The article can be viewed online at this LINK.

Monday, September 19, 2016

Federal Middle District Court Judge Munley Allows Punitive Damages Claims to Proceed in Trucking Accident Case

In his recent decision in the case of Delamarter v. Couglar and Cargo Transporters, Inc., No. 3:16-cv-665 (M.D. Pa. July 21, 2016 Munley, J.), Judge James M. Munley of the United States District Court of the Middle District of Pennsylvania denied a Defendant’s Motion to Dismiss a Plaintiffs’ punitive damages claims in a trucking accident case after finding that the Plaintiffs had sufficiently pled such a claim to allow the issue to proceed into discovery.  

According to the Opinion, the Plaintiff alleged that the Defendants negligently operated a tractor trailer during which the Defendant driver allegedly fell asleep at the wheel and, therefore, failed to slow down or stop in anticipation of the traffic ahead.   The accident occurred on interstate highway. 

The court noted that, at the time of the accident, there was ongoing construction on the interstate highway that reduced the highway to a single lane.   The Plaintiff had stopped in the construction zone due to an earlier, unrelated accident.  The Defendant tractor trailer driver allegedly fell asleep at the wheel and struck the rear of the Plaintiff’s vehicle during the course of the accident.  

Judge Munley reviewed the standard for a federal court Motion to Dismiss along with the current status of the law pertaining to punitive damages and found, in part, that other courts have ruled that violations of the Federal Motor Carrier Safety Regulations, coupled with allegations of a conscious disregard for the safety and rights of others, is sufficient to properly assert a claim for punitive damages.   

Here, the Plaintiff alleged that the tractor trailer driver acted recklessly by driving while fatigued and while falling asleep, which allegedly amounted to outrageous conduct on the part of the tractor trailer driver.   The Plaintiff further asserted that the tractor trailer driver’s reckless conduct violated various federal and state statutes.   Accordingly, the court found that such allegations were sufficient to allow the claims for punitive damages to proceed against the tractor trailer driver.  

With regards to the tractor trailer company, the Plaintiff pled that the company entrusted a tractor trailer to the tractor trailer driver without ascertaining his ability to operate the vehicle safely despite the obvious risk of highly probable harm that could follow.  The Plaintiff additionally asserted that the tractor trailer company allowed the driver drive the vehicle when the company knew or should have known that the driver was too fatigued to drive, which constituted a violation of federal statutes.  

In his Opinion, Judge Munley denied the Motion to Dismiss but noted that the Defendants could revisit this issue at the Motion for Summary Judgment stage.    

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

I send thanks to Attorney James J. Conaboy of the Scranton law firm of Abrahamsen, Conaboy and Abrahamsen for bringing this case to my attention.  

Thursday, September 15, 2016

Pennsylvania Supreme Court to Review Admissibility of Intoxication In Civil Litigation Context

In the case of Coughlin v. Massaquoi, No. 166 EAL 2016 (Pa. Aug. 24, 2016), the court granted a Petition for Allowance of Appeal to review the issue, as stated by the Plaintiff:

In a civil trial brought on behalf of a pedestrian who was killed by a motorist, is it reversible error where the Defendant motorist admits evidence of the pedestrian’s uncorroborated post-mortem blood alcohol content (BAC) by way of a toxicology expert who merely explains the uncorroborated BAC in terms of how and equivalent BAC would render an “average” person unfit to cross the street? 

The Tort Talk post on the non-precedential Superior Court decision in this case may be viewed HERE.

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

Wednesday, September 14, 2016

Pennsylvania Supreme Court Grants Allowance of Appeal in a Sackett Type Case

In the UIM stacking case of Toner v. The Travelers Home and Marine Ins. Co., No. 170 WAL 2016 (Pa. Sept. 8, 2016), the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal to address the following issue:

"Whether the Superior Court correctly determined that an insured, who signed a UM/UIM stacking waiver at the inception of a single vehicle policy, was not entitled to stack UM /UIM benefits, even though the carrier failed to obtain stacking waivers when second and third vehicles were added to the policy?"

Here is a LINK to the Tort Talk post on the Superior Court's decision in this same case, which post contains a link to the Superior Court's Opinion.

I send thanks to Attorney Craig Murphey of the Erie, PA office of McDonald, Illig, Jones & Britton, LLP for bringing this Supreme Court Order to my attention.

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.

Tuesday, September 13, 2016

UIM Bad Faith Claim Dismissed by Western Federal District Court

In a recent Western District of Pennsylvania Federal Court decision of Homer v. Nationwide Mut. Ins. Co., No. 2:15-cv-01184-NBF (W.D. Pa. Aug. 26, 2016 Fisher, J.), the court granted an insurance company’s Motion to Dismiss a Plaintiff’s bad faith claim related to actions allegedly taken by the carrier during a previous underinsured motorist proceeding.  

Nationwide moved for the dismissal on the ground that the Plaintiff could not rely upon litigation conduct as the basis for an insurance bad faith claim under Pennsylvania law.   Nationwide also asserted that the Plaintiff had not sufficiently plead the elements of an unfair trade practices and consumer protection law claim.  

In her decision, Judge Fisher noted that the case before her appeared to present an issue of first impression with respect to litigation conduct in the context insurance bad faith allegations.  

After a review of the matter before her along with the relevant legal authority in Pennsylvania and other jurisdictions, the court granted the carrier’s Motion to Dismiss.   In so ruling, Judge Fisher concluded that Pennsylvania would likely adopt an approach where there could only be bad faith litigation conduct “in rare cases involving extraordinary facts.”  

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

I send thanks to Attorney Daniel L. Rivetti, Esquire of the Pittsburgh office of Robb, Leonard, Mulvihill, LLP for bringing this decision to my attention.  

Monday, September 12, 2016

Motion to Sever and Stay Bad Faith Claim Granted in Eastern District Federal Court Case

A motion to sever and stay a bad faith claim was granted in the Eastern Federal District Court case of Corley v. Nat'l Indemn. Co., No. 2:16-CV-00584-MMB (E.D. Pa. Sept. 9, 2016 Baylson, J.).

Anyone wishing to review the Court's Memorandum Order in this case may click this LINK.  The court's related Scheduling Order can be viewed HERE.

I send thanks to the prevailing defense attorneys, Richard L. McMonigle and Lindsay Andreuzzi of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Friday, September 9, 2016

Senior Judge Minora Grants Motion for Recusal

In the case of Schoenberg v. State Farm Insurance Company, No. 2012-CV-5005 (C.P. Lacka. Co. Aug. 10, 2016 Minora, S.J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted a Defendant’s Motion for Recusal. 

In his Opinion in the matter, Judge Minora noted that his noted that “[r]ecent United States Supreme Court cases regarding judicial disqualification and recusal dedicate a review of the new law in this area.” 

In analyzing Pennsylvania and Federal law on the issue, Judge Minora generally noted that a court proceeding begins with a presumption in favor of the court that a tribunal is fair, unbiased, and disinterested.   The trial court then has a duty to reveal any facts that would tend to show bias or interests making the tribunal arguably partial.   

At that point, the party concerns must motion to the court alleging facts as to why they believe the court is disqualified and thus seeking the court to recuse itself. 

Once the matter reaches that stage, a court must perform a subjective review of its appropriateness to handle the pending case.   Also, an objective test, a procedural test, and a code of judicial conduct review also ought to be taken.  

In the end, Judge Minora granted the Defendant’s requested recusal in part and denied it in part, resulting ultimately in the court’s decision to recuse itself.    

Anyone wishing to review a copy of Judge Minora's detailed analysis in Schoenberg for the deciding of a motion for recusal, may click this LINK.

Dauphin County Court of Common Pleas Issues Another Order on Timing of Production of Virtual (Social Media) Surveillance Gathered on a Party

Another Judge in the Dauphin County Court of Common Pleas has entered an Order requiring a Defendant to produce, prior to the Plaintiff’s deposition, all social media information gathered on the Plaintiff.   This Order was entered by Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas in the case of Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, 2016 Bratton, J.).

The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.   In this regard, the court cited Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000).  

Click this LINK to view the Tort Talk post on the other Dauphin County Court of Common Pleas case in this regard issued by Judge Dowling.

Anyone wishing to review a copy of this Order may contact me at 
I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.


Wednesday, September 7, 2016

Summary Judgment Granted in Favor of Water Park

In the case of Rabadi v. Great Wolf Lodge, LLC, No. 3:15-CV-00101 (M.D. Pa. Aug. 9, 2016 Mariani, J.), the court ranted summary judgment in favor of the Defendant water park.

The court entered summary judgment after finding that the Plaintiff had no expert to support their theory of how the Defendant’s ride malfunctioned.   In the absence of any expert, the Plaintiffs cannot prove causation.   The court ruled that the cause of the Plaintiff’s alleged injury was not so simple or obvious that an expert would not be required.  

Judge Mariani further held that in negligence cases in which water pressure is allegedly the cause of injury, expert testimony is required to proceed to a jury.   The court noted that the doctrine of res ipsa loquitur would not apply.  

In his decision, Judge Mariani also referenced the well said of principle that a mere occurrence of an accident, without more, does not establish negligent conduct on the part of a Defendant.  
Anyone wishing to review this decision may click this LINK.

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



Tuesday, September 6, 2016

Pennsylvania Supreme Court Agrees to Revisit the Elements of Statutory Bad Faith Claims

Here's a case to keep an eye on if you handle statutory bad faith litigation matters under 42 Pa.C.S.A. Section 8371.

 In the case of Rancosky v. Washington Nat'l Ins. Co., 28 WAP 2016 (Pa. Aug. 30, 2016), the Pennsylvania Supreme Court had granted an appeal on the following issue:

 "Whether this Court should ratify the requirements of Terletsky v. Prudential Property & Casualty Insurance Co., 649 A.2d 680 (Pa. Super. 1994), appeal denied, 659 A.2d 560 (Pa. 1995), for establishing insurer bad faith under 42 Pa.C.S. § 8371, and assuming the answer to be in the affirmative, whether the Superior Court erred in holding that Terletsky factor of a “motive of self-interest or ill-will” is merely a discretionary consideration rather than a mandatory prerequisite to proving bad faith?"

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris and the other writers of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this decision to my attention.  To view that blog's more detailed analysis of the bad faith question presented above as well as to access a Link to this Supreme Court Order in Rancosky, click this LINK.

Friday, September 2, 2016

Schuylkill County Court of Common Pleas Denies Post-Koken Motion to Sever UIM Claim From Negligence Claim

In the Schuylkill County Court of Common Pleas case of Smith v. Koch and Allstate, No. S-460-2016 (C.P. Schuylk. Co. July 22, 2016 Goodman, J.), the court denied a motion of the UIM carrier to sever the UIM claim from the negligence claim.

Anyone wishing to review a copy of this Order only may click this LINK.

I send thanks to Attorney Bradley Moyer of the Scranton, PA office of the Pisanchyn Law Firm for bringing this case to my attention.