Friday, June 15, 2018

ARTICLE: A MID-YEAR TUNEUP

As we are in the middle of the year, thought it would be a good time to re-run my article "A Mid-Year Tuneup: Ten Tips to Improve Your Practice and Reduce Your Stress." 

This article first appeared in the Pennsylvania Law Weekly about 10 years ago on June 30, 2008 and is republished here with permission.  The tips appear to be standing the test of time.

Here is a LINK to the article for your reading enjoyment.

Thanks for reading Tort Talk,

Dan Cummins






Thursday, June 14, 2018

Judge Amesbury of Luzerne County Orders Severance and Stay of Post-Koken Bad Faith Claim


In the post-Koken case of Denisco v. USAA, No. 2248-CV-2018 (C.P. Luz. Co. May 21, 2018 Amesbury, J.), the court granted a UIM carrier’s Motion to Sever and Stay a Plaintiffs’ Bad Faith Claims from the Plaintiffs’ Breach of Contract Claims.  

Judge William H. Amesbury
Luzerne County
The court further ordered that discovery and trial on the breach of contract claims would proceed separately and conclude before the commencement of any discovery with respect to the separate bad faith claims.  

 The court additional ordered that, upon completion or settlement of the breach of contract claims, a scheduling conference would be held to discuss a schedule for discovery, dispositive motions, and trial with respect to the bad faith claims.

Anyone wishing to review a copy of this Court Order without Opinion may click this LINK.

I send thanks to Attorney Lindsay B. Andreuzzi and Attorney Marni Berger of the Philadelphia office of Post & Schell for bringing this Order to my attention.




Tuesday, June 12, 2018

Cross Motions for Summary Judgment Denied in a Federal Court UIM Bad Faith Case


In the case of Parisi v. State Farm Mut. Auto. Ins. Co., No. 16-179 (W.D. Pa. May 7, 2018 Gibson, J.), the court denied cross-motions for summary judgment in a UIM bad faith case given the court’s finding of genuine issues of material fact with respect to the claims handling and settlement negotiations in the case. 

According to the Opinion, this UIM action was commenced after the insured allegedly suffered a serious head injury in a motor vehicle accident.

The UIM claims-handling process covered a time period of approximately 2 ½ years.  

According to the Opinion, the insured demanding the payment of the $100,000.00 policy limits and the carrier’s initial settlement offer was $17,000.00.   The carrier later ended up paying the policy limits on the claim.  

The insured filed a bad faith suit in which it was alleged that there was a bad faith delay in the payment of the UIM benefits.  

After both parties moved for summary judgment on the bad faith issues, the court denied both motions after finding genuine issues of material fact.  

The court in Parisi found that the insured’s attorney did not demand settlement of the claim for nearly two (2) years after the filing and, once he did, the evidence revealed that the carrier acted promptly in response.  

The court additionally noted that a jury could conclude that the initial offer by the carrier was reasonable given the evidence presented at that stage of the proceedings.   The court also pointed to testimony in the record indicating that head injuries are particularly difficult to evaluate.   Based on at least these reasons, the court denied the Plaintiff’s Motion for Summary Judgment on the bad faith issues.

As noted, the court additionally denied the carrier’s Motion for Summary Judgment on the bad faith claims.   In this regard, the court found that a jury could find that there was an unreasonable delay in the payment of the benefits and that the initial offer by the carrier was an unreasonable low ball offer.   The court also noted that the record revealed that a jury could find that the carrier failed to conduct a meaningful investigation or attempt settlement between the time of the filing and the time when the insured’s attorney demanded settlement almost two (2) years later.  

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris, and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.  

Thursday, June 7, 2018

Release Language in Ski Waiver Form Upheld as Supporting Summary Judgment


In the case of Kibler v. Blue Knob Recreation, Inc., No. 903 WDA 2017 (Pa. Super. April 19, 2018 Ford Elliot, P.J.E., Bowes, J.; Stabile, J., concurring) (Op. by Ford Elliot, P.J.E.), the court affirmed the trial court’s entry of summary judgment after finding that the Defendant’s release or waiver form was valid and enforceable in a downhill skiing accident case.  

The Plaintiff attempted to get around the waiver form he signed by asserting that his accident was caused when the Plaintiff attempted to ski over an area where there were wheel ruts left in the snow by an ATV used by a resort employee.

The Superior Court affirmed the trial court’s finding that wheel ruts left by a vehicle operated by the Defendant’s employees are an inherent risk of downhill skiing for which the Defendant ski resort had no duty to protect skiers.   The court additionally noted that tire tracks in snow do not amount to evidence of reckless conduct on the part of the ski resort so as to get around the terms of the release signed by the Plaintiff. 

Relative to the waiver signed by the Plaintiff, the court found that the release terms did not contravene law or public policy.  

The court additionally reaffirmed the well-settled principle of law that the alleged failure to read a release is not a defense.  

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

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


Wednesday, June 6, 2018

Superior Court Quickly Reissues Decision in Berg - No Substantial Change


In an Opinion handed down yesterday (June 5, 2018), the Pennsylvania Superior Court issued its reconsidered Opinion in the case of Berg v. Nationwide.

The latest Opinion by the Superior Court remained consistent on all substantive fronts when compared to its previous April 9, 2018 decision in which the court erased a $21 million dollar bad faith award in favor of the Plaintiff. 

It appears that the only change noted in the new decision was a removal by the court of a reference made in the April 9th Opinion to a the burden of proof that had been used when the Plaintiff's Unfair Trade Practices and Consumer Protection Law claims were tried before a jury in 2004.  This change from the previous Opinion is of no import in the end.

To review this June 5 2018 Opinion by the Superior Court in Berg click HERE.  President Judge Emeritus Stevens' Dissenting Opinion can be viewed HERE.

To review the Tort Talk entry on the April 9, 2018 decision that was vacated and which now has essentially been reinstated, click HERE.

Continuing updates will be provided on this case.  Commentators expect that there will be an request for re-argument en banc.

Source:  "$21M Bad Faith Verdict is Tossed Again on Reconsideration" by Max Mitchell of The Legal Intelligencer (June 6, 2018)


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Tuesday, June 5, 2018

REMINDER TO RENEW YOUR PA LAW LICENSE BY JULY 1 TO AVOID LATE FEES


Just a quick and friendly reminder to watch your emails for the notification that your PA license registration is due. You will not receive a notice by mail, only email.
 
Note that substantial late fees will be incurred if the Registration is not completed by July 1st.

 

 

Pennsylvania Supreme Court Agrees to Review the Validity of Unlisted Resident Driver Exclusions in Automobile Policies



In an Order handed down yesterday in the case of Safe Auto Ins. Co. v. Oriental-Guillermo, No. 791 MAL 2017 (Pa. June 4, 2018), the Pennsylvania Supreme Court agreed to look at the validity of unlisted resident driver exclusions in automobile insurance policies.  To paraphrase, the court agreed to decide the following issues:  

(1)  Did the Superior Court err in upholding the “unlisted resident driver exclusion” in a personal auto policy as valid and enforceable and not in conflict with the MVFRL; and 

(2)  Is the “unlisted resident driver exclusion” inherently in conflict with public policy in Pennsylvania as embodied in Section 1786 of the MVFRL, which implicitly allows for permissive users of an insured vehicle to also be considered insureds under the owner’s policy?

Click HERE to view the Supreme Court's Order.
 
I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Eastern District Products Liability Case Transferred to Western District as Proper Venue

In the products liability case of Kershner v. Komatsu Ltd., No. 17-CV-4787 (E.D. Pa. April 10, 2018 Rufe, J.), the Eastern District Federal Court of Pennsylvania granted a Defendant’s Motion to Transfer Venue to the Western District Court of Pennsylvania where the court found that the Eastern District lacked personal jurisdiction over the Defendants and where more convenient access to the evidence and witnesses weighed in favor of the transfer.  

According to the Opinion, the Plaintiff was working as a bulldozer operator on a pipeline project in Ohio. The Plaintiff was injured when he attempted to exit his bulldozer.   The bulldozer was manufactured by the Defendant.

The Plaintiff was initially transported to a hospital for treatment in Wheeling, West Virginia.  He was then later transferred to the University of Pittsburgh Medical Center where he spent two (2) weeks in recovery.  The Plaintiff was then transferred to a healthcare facility in Williamsport, Pennsylvania, near his home to further recuperate. 

The Plaintiff initially filed this action in state court in Philadelphia County.  The Defendants removed the case to Eastern District Federal Court on the basis of diversity jurisdiction and then filed the Motion to Transfer Venue to the Western District Federal Court.  

The court in the Eastern District first ruled that the Eastern District of Pennsylvania was not a proper venue given that the Defendant and its affiliates did not “reside” in the district.  The Defendants also did not have sufficient minimum contacts to warrant the exercise of long-arm jurisdiction as none of the events given rise to the causation of action occurred in the Eastern District, nor were any witnesses or evidence located in the Eastern District.  

Given that the Plaintiff spent a significant amount of time receiving treatment for his injuries in the Western District of Pennsylvania, and given that many of his medical records would be located in that district, was found to weigh in favor of the transfer of the matter.   The court noted that other practical considerations such as the location of witnesses and evidence in or near the Western District supported a finding that more convenience to the parties would result by a transfer to the Western District Court.  As such, the Motion to Transfer was granted. 

The Court's Opinion can be viewed at this LINK.

The companion Order in this case can be viewed HERE.

Source:  "Digest of Recent Cases."  Pennsylvania Law Weekly (April 24, 2018).

Monday, June 4, 2018

Motion To Quash Subpoena Addressed in Medical Malpractice Case



In the case of Smith v. Pancholy, 16 - CV - 1789 (C.P. Lacka. Co. March 22, 2018 Nealon, J.), the court granted in part and denied in part Motions to Quash Subpoenas filed by medical malpractice Defendants.  

According to the Opinion, the Plaintiff initiated this wrongful death action following the death of the Plaintiff’s husband after a cardiac procedure.  

During the course of discovery, the Plaintiff served subpoenas on non-parties, which included the hospitals at which the decedent was treated.  The subpoenas requested the production of any and all information regarding screens, data, visuals, monitors, televisions, and computers that were available for use in a specified lab for doctors to review, observe, or use to assist during any cardiology procedure.  The subpoenas requested such information over a four (4) year period. 

The hospitals argued that the requests were overly broad and vague and that the requests caused an unreasonable annoyance and embarrassment by potentially disclosing confidential information about other patients. The hospitals also asserted that the subpoena created an unreasonable burden and expense to locate, gather and produce all such documents and items.  

The court found that the requests spanning the four (4) year period was indeed overly broad.    The subpoenas were also found to lack reasonable particularity. The court additionally noted that, even if private medical information was redacted, the Plaintiff’s requests would result in an unreasonable burden and expense to the hospital.  

Given that the only potentially relevant information in the specified lab were the screens, visuals, monitors and computers that were available for a physician to utilize during the month of the Plaintiff’s husband’s surgery, the court allowed discovery with respect to that month only and otherwise quashed the subpoenas in all other respects.

Anyone wishing to review this decision may click this LINK

Summary Judgment Granted to Carrier in UIM Bad Faith Case


In the case of Shaw v. USAA Cas. Ins. Co., No. 3:17-947 (M.D. Pa. May 11, 2018 Mannion, J.), the court granted the carrier’s Motion for Partial Summary Judgment with respect to the Plaintiff’s bad faith count in a UIM case.   Overall, the court ruled that a reasonable jury could not conclude that the Defendant carrier acted in bad faith under the case presented.  

By way of background, the Plaintiff was injured as a pedestrian in a motor vehicle accident.   The Plaintiff settled her bodily injury claim against the third party tortfeasor for $50,000.00 out of the available $100,000.00 liability limits. Thereafter, she submitted a claim for UIM benefits with her own carrier.  

During its investigation, the Defendant carrier determined that the overall value of the Plaintiff’s liability claim against the tortfeasor did not exceed the $100,000.00 liability limits available to the tortfeasor.  

In the bad faith claim, the Plaintiff asserted that the Defendant did not fully investigate or revise its initial assessment despite the Plaintiff submitting additional medical records and expert reports.  

After a review of the record before it, Judge Mannion found that the Plaintiff had not produced sufficient evidence to support the claims that the Defendant carrier had acted outrageously and in bad faith in its handling, investigation, and adjustment of the Plaintiff’s UIM claim.  

In his decision, Judge Mannion provides a thorough recitation of the post-Rancoski bad faith law in support of his decision.  

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

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall Dennehey Warner Coleman & Goggin for bringing this case to my attention.  




Friday, June 1, 2018

Summary Judgment Granted on Basis of Release in Membership Agreement With Gym



In the case of Hill v. LA Fitness, No. 2017 - CV - 2092 (E.D. Pa. April 10, 2018 Joyner, J.), the court granted summary judgment for the Defendant on the Plaintiff’s personal injury claim where the Plaintiff knowingly and voluntarily agreed to a valid and enforceable exculpatory waiver or release of liability. 

According to the Opinion, the Plaintiff was allegedly injured when he tripped and fell over a yoga mat mistakenly left on the floor on the basketball court at an LA Fitness facility.  

The defense filed a summary judgment asserting that the Plaintiff’s action was barred by the exculpatory waiver in the Plaintiff’s membership agreement.  

In opposition to the motion, the Plaintiff did not challenge the validity or enforceability of the agreement but instead argued that there was a genuine issue of material fact as to whether he signed the agreement.

The court noted that, although the Plaintiff testified at his deposition that his then girlfriend signed his name to the first page of the agreement, the Plaintiff otherwise admitted that he did read the agreement and initialed the remaining pages of the same.   The court found this to be evidence that the Plaintiff understood that he was entering the membership agreement, including the exculpatory waiver.  

Because the Plaintiff was found to have entered a valid enforceable exculpatory waiver, the court ruled that the Plaintiff’s negligence claims were barred by that waiver and, therefore, granted the Defendant’s Motion for Summary Judgment. 


The Court's Opinion can be viewed at this LINK.  Here is the LINK to the companion Order.

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Exculpatory Clause in Gym's Membership Agreement Supports Summary Judgment in Slip and Fall Case

In the case of Vinson v. Fitness & Sports Clubs, LLC, No. 2018 Pa. Super. 113 (Pa. Super. May 4, 2018 McLaughlin, Bowes, Musmanno, J.J.) (Op. by McLaughlin, J.), the court affirmed a trial court’s entry of summary judgment based upon a Plaintiff’s execution of a recreational release. 

This case involved a plaintiff who was allegedly injured when she slipped and fell due to a wet floor mat.

The court ruled that recreational releases, such as those required by gyms are valid and are enforceable.   The court additionally noted that an alleged failure to read the release is not a valid defense. 

The court also noted that voluntary athletic or recreational activities are not matters of public or state interests.  

The Vinson court upheld the exculpatory clause contained in gym's membership agreement under which the member agreed to release the gym for any liability for any injuries sustained in the gym.

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 the Reid Smith law firm for bringing this case to my attention.  



Dauphin County Court of Common Pleas Issues Discovery Orders in Peer Review Case

The Dauphin County Court of Common Pleas recently addressed a discovery issue in the context of a lawsuits filed for the payment of three (3) separate chiropractors’ unpaid bills following peer reviews.  

During the course of these actions, Plaintiff’s counsel served written discovery on the PIP medical benefits carrier requesting the production of the peer review section of its Medical Management Automobile Policy and Procedure Manual.  The carrier refused to do so unless the Plaintiff signed a Confidentiality Agreement, which the Plaintiff refused.  

The carrier then filed for protective orders in the cases presented.  
Judge Andrew Dowling of Dauphin County Court of Common Pleas held a hearing and eventually issued order ruling that the pages of the manual at issue did not constitute any trade secrets.  The court also indicated that the carrier failed to offer any evidence as to what harm the carrier would suffer if the five (5) pages at issue were released to the public and/or to the carrier’s competitors. 
As such, the court ordered that the documents be produced and further ordered that the Plaintiff’s counsel was not required to execute a Confidentiality Agreement.  

Anyone wishing to review a copy of these Orders issued in the cases with the Plaintiff’s names of Aukerman, Turnpaugh, and Pennese, may contact me at dancummins@comcast.net.
I send thanks to Attorney Robert Claraval of Claraval & Claraval Law Offices in Harrisburg, PA for bringing these decisions to my attention.

Thursday, May 31, 2018

Berg v. Nationwide Decision Vacated and Reargument Granted by Superior Court


In an Order handed down yesterday (May 31, 2018), the Pennsylvania Superior Court vacated its previous decision in the case of Berg v. Nationwide and granted re-argument on the issues presented. 

The Superior Court's most recent decision prior to this one erased a $21 million dollar bad faith award in favor of the Plaintiff.  Now that decision has been erased.

To review the Tort Talk entry on the decision that was vacated, click HERE

Continuing updates will be provided on this case.

Wednesday, May 30, 2018

Pennsylvania Supreme Court Rules Pennsylvania State Police Not Entitled to Subrogate Against Claimant's Tort Settlement


In the case of Pennsylvania State Police v. WCAB (Bushta), No. 14 WAP 2017 (Pa. May 29, 2018) (Op. by Todd, J.), the Pennsylvania Supreme Court affirmed the Commonwealth Court’s decision which held that the Pennsylvania State Police does not have a right of subrogation against a claimant’s tort settlement with a tortfeasor for benefits that the claimant received under the Heart and Lung Act.  

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

I send thanks to the prevailing Plaintiff’s attorney, Bruce S. Zero, Esquire of the Scranton, PA firm of Powell Law for bringing this case to my attention.  


Pennsylvania Trial Court Dismisses Suit For Auto Accident That Occurred in New York

In her recent decision in the case of Ford v. Leal, No. 3471-CV-2016 (C.P. Monroe Co. Mar. 15, 2018 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas sustained the Defendants’ Preliminary Objections and dismissed a Plaintiff’s Complaint in an automobile accident case due to lack of In Personam jurisdiction over the Defendants.

According to the Opinion, the Plaintiffs were involved in a motor vehicle accident on the New York Thruway in Rockland County, New York.  

The Plaintiff filed suit in Monroe County, Pennsylvania and the Defendants filed Preliminary Objections under Pa.R.C.P. 1028(a)(1) asserting lack of jurisdiction of the Defendants.  

More specifically, the Defendants asserted that the court did not have any personal jurisdiction over the Defendants.   The Defendants asserted that they did not reside or own real property in Pennsylvania, that the subject accident did not occur in Pennsylvania, that the Defendants were not served in Pennsylvania, and that the courts of Pennsylvania lack general jurisdiction and specific personal jurisdiction under the Pennsylvania Long Arm Statute over the Defendants.  

Judge Jennifer Harlacher-Sibum
Monroe County
Judge Harlacher Sibum noted that, according to well-established Pennsylvania case law, an alleged out-of-state automobile accident alone is not enough for a Pennsylvania court to establish personal jurisdiction over a Defendant under the Long Arm Statute, even when the Plaintiff alleges a lasting injury that continues while the Plaintiff resides in Pennsylvania.   See Op. 4 citing with “See” signal DeFay v. McMeekin, 508 A.2d 324 (Pa. Super. 1986) [other citations omitted].  

On the basis of this law, the court found that the Monroe County Court of Common Pleas did not specific personal jurisdiction over the Defendants under Pennsylvania’s Long Arm Statute and, as such, the Complaint was dismissed.  


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

Monday, May 28, 2018

Eastern District Court Dismisses UIM Bad Faith Claim Due to Conclusory Allegations in Complaint

In the case of Kosmalski v. Progressive Preferred Ins., No. 17-5726 (E.D. Pa. May 2, 2018 Pappert, J.), the court dismissed a Plaintiff’s bad faith claim in a UIM action with leave to amend. 

According to the Opinion, the insured was apparently dissatisfied with the carrier’s claim evaluation and alleged that the insured had failed to evaluate the claim fairly and objectively, failed to complete a prompt and thorough investigation, failed to remit benefits promptly, failed to reasonably evaluate medical documentation, and failed to keep the insured fairly advised as to the status of the claim.

The court noted that the Plaintiff offered no further detailed facts to support these conclusory allegations.  

As such, the Eastern District Court granted the carrier’s Motion to Dismiss and held that “bare-bones” conclusory allegations that are not accompanied by factual allegations are insufficient to raise the claims to a level of plausibility required to survive a Rule 12(b)(6) Motion to Dismiss.   The court further noted that a Plaintiff must provide additional facts to show how the insured’s conduct was allegedly unreasonable and reckless.

Despite granting the Motion to Dismissed filed by the Defendants, the court did grant the Plaintiff leave to file an Amended Complaint to correct the errors noted.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog and member of the Philadelphia Law Firm of Fineman, Krekstein & Harris for bringing this case to my attention.

Check out Attorney Applebaum's excellent Bad Faith Case Law Blog HERE.  It is my go-to resource for the latest Pennsylvania and New Jersey Bad Faith cases of note.

Thursday, May 24, 2018

HOPING TO BRING YOUR CASE TO A CLOSE?



I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

New Jersey Automobile Reparation Reform Act Applied To Preclude Damages in Pennsylvania Auto Accident Case

 
In the case of Williams v. Reczynski, No. C-0048-CV-2016-3019 (C.P. Northampton Co. Dec. 14, 2017 Dally, J.), the court granted the Defendant’s Motion In Limine to preclude evidence of medical expenses and non-economic damages in a motor vehicle accident case.  

This matter arose out of a motor vehicle accident that occurred in Pennsylvania.  The Defendants were Pennsylvania residents.  According the allegations in the Complaint, the Plaintiff alleged that she was a resident of New Jersey at the time of the accident.  

During the course of discovery, it was confirmed that the Plaintiff had no insurance on her automobile at the time of the accident.  

The Defendants asserted that New Jersey law should be applied in the matter and that, under New Jersey law, the Plaintiffs should be precluded from seeking economic and non-economic damages pursuant to the New Jersey Automobile Reparation Reform Act.  

According to the Opinion, although Pennsylvania’s Motor Vehicle Financial Responsibility Law does not preclude an uninsured motorist from claiming economic damages, under New Jersey law, an uninsured motorist is precluded from seeking any damages for economic or non-economic losses.  

After completing a conflicts of law analysis, the Northampton County of Court of Common Pleas ruled that New Jersey law should indeed apply on this issue.   Applying that New Jersey law, the court granted the Defendant’s motion to preclude the Plaintiff's damages claims.  

Anyone wishing to review this case may click this LINK.


I send thanks to Attorney John A. Statler and Jason Statler of the Lemoyne, Pa law firm of Johnson & Duffy for bringing this case to my attention.   

The Days of Judges Not Being In Courtroom for Voir Dire May Be Coming to An End

 
Picking a Jury:  A View from the Bench

In the case of Trigg v. Children’s Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.  

According to the Opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire, as such the trial court judge did not have any first hand perception of the juror’s demeanor.  

Accordingly, given that firsthand perception of a juror’s demeanor is the basis for a palpable error deference standard of review, decisions on jury strikes made by judges who do not attend voir dire are not accorded this palpable error deference by the Superior Court.  

The appellate court ruled in this fashion after noting that the alleged demeanor of a perceptive juror cannot be reconstructed after the fact. by attorneys attempting to relay the same to the formerly absent trial judge.  

The Superior Court ruled that "[a] judge personally witnessing the original voir dire is essential, because it justifies our -- and the losing party's -- faith in the trial court's rulings on challenges for cause."

In her Concurring Opinion, Judge Bowes also emphasized the need for trial court judges to be in the courtroom to assess a juror's demeanor in responding to voir dire questions as part of the process of properly determining whether a juror should be stricken or not.
The Superior Court also ruled that a juror with relatives who were physicians, and who alleged showed bias as a result, should have been excused for cause.  

 Overall, the Superior Court found reversible error where a party is forced to use a peremptory challenge to exclude a juror who should have been excused for cause.  


Anyone wishing to review a copy of this decision may click this LINK.  Judge Bowes's Concurring Opinion can be viewed HERE.  

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