Thursday, March 29, 2018

Federal Court Dismisses Products Case (in part) Due to Failure to Complete Service and Statute of Limitations Issues

The failure to complete service under the applicable statute of limitations was the issue reviewed in the case of Ginzburg v. Electrolux Home Products, No. 17-3384 (E.D. Pa. Jan. 19, 2018 Quinones Alejandro, J.).   In this matter, the Federal Court granted a Defendant’s Motion to Dismiss due to the Plaintiff’s failure to complete service of process within the applicable statute of limitation. 

In this matter, the case originally was brought in the state court but was removed to federal court.   The Federal Court noted that, even though initial service of process may have been improper in a matter, under 28 U.S.C.§1448, a Plaintiff is permitted to reserve the right to correct such deficiencies once a case has been removed to Federal Court.  

Although the Plaintiff did reserve such rights, the court found that dismissal was still proper on the grounds of improper service of process.  

More specifically, the court ruled that, under Pennsylvania law, Plaintiff’s failure to serve the Defendant properly within ninety (90) days of a filing a Praecipe for Writ of Summons precluded the Writ from tolling the statute of limitations.   Given that the two (2) year tort statute of limitations had expired, the court found that all of the Plaintiff’s products liability and tort claims must be dismissed.

In its Opinion, the court noted that a defective attempt of service at the last minute to the wrong address did not amount to proper service, or even a good faith attempt at service.   The court emphasized that the Defendant never received actual notice of the suit until after the statute of limitations had expired.  

On the breach of warranty claims, the court noted that only the filing of a actual Complaint, and not the defective service of the Writ, could serve to toll the four (4) year statute of limitations applicable to that type of cause of action.  

In this matter, the Complaint did not allege the date that the product was delivered and, as such, the Complaint was deemed to be deficient in pleading the warranty claims.  Accordingly, the court dismissed the breach of warranty claim without prejudice to the Plaintiff’s right to amend the Complaint with allegations of a delivery of the product within the four (4) year period.  

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

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

Tuesday, March 27, 2018

ARTICLE: Jury Instructions in Products Liability Cases Create More Debate Than Consensus

The below article of mine appeared in the March 20, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission:
Jury Instructions in Products Liability Cases Create More Debate Than Consensus
By Daniel E. Cummins | March 20, 2018
Pennsylvania Law Weekly

With the law of products liability cases continuing to evolve in the post-Tincher era, growing pains are being felt by both the courts and practitioners. In particular, as reported in numerous recent articles in the Pennsylvania Law Weekly and The Legal Intelligencer, the trial courts are faced with conflicting positions from the plaintiff’s bar and the defense bar on the proper language for jury instructions in post-Tincher products cases.

After the Tincher decision was handed down by the Pennsylvania Supreme Court in 2014, the civil instructions subcommittee of the Pennsylvania Supreme Court committee for proposed standard jury instructions drafted suggested standard civil jury instructions for products liability cases which were then published by the Pennsylvania Bar Institute (PBI).
The post-Tincher jury instructions drafted by the subcommittee were quickly criticized by members of the defense bar who felt that the language in the instructions was not entirely consistent with the law laid down in Tincher. In a touch of irony, it may be said that members of the defense bar view these suggested jury instructions on products liability cases as being defective.

With members of both the plaintiffs bar and the defense bar being so vociferous in their opposing positions on these suggested standard civil jury instructions for products liability claims, and given that the language of some portions of these instructions have been called into question by the recent decision of the Superior Court in Tincher, it may be advisable for the civil instructions subcommittee to go back to the drawing board in an effort to come up with a consensus on such instructions for the benefit of both the courts and the litigants.

A revised set of products liability jury instructions would not only quiet the debate but, more importantly, would further the interest of judicial economy by potentially avoiding appeals and, in those cases that are appealed, possibly avoiding the need for appellate courts to overturn verdicts on the basis of improper jury instructions utilized by the trial court.
‘Tincher’ Altered the Law (Somewhat)

Back in 2014, when the Pennsylvania Supreme Court released its much-anticipated products liability decision in the case of Tincher v. Omega Flex, the central question before the court was whether the strict liability analysis of Section 402A of the Reinstatement (Second) of Torts should be replaced with the analysis contained in the Restatement (Third) of Torts.
In its 128-page majority opinion, the Pennsylvania Supreme Court elected to stay with Section 402A of the Restatement (Second) of Torts but also chose to overrule the prior notable products liability decision of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978) and that court’s negligence/strict liability analysis which had been followed by Pennsylvania litigators for 36 years.

The prior Azzarello decision and its progeny were plaintiff-friendly in that those decisions fostered the removal of all negligence concepts from products liability cases in favor of strict liability concepts. The Azzarello decision also held that the trial court, and not the jury, was in charge of evaluating the risk/utility of a defendant’s product. Under the law set forth in Azzarello, the trial courts were additionally required to instruct juries that the manufacturer or supplier of a product was a guarantor of the safety of its product.
The Supreme Court in Tincher expressly overruled Azzarello and disapproved of that court’s support for a jury instruction that a “manufacturer is a guarantor of its product.” The Tincher court formulated an altered standard of review for Pennsylvania products liability cases that focused on both a “consumer expectation” and a “risk/utility” definition of a defect.

Under the consumer expectation test, a product may be found to be in a defective condition if the danger posed by the product is unknowable and unacceptable to the average or ordinary consumer.
The separate “risk/utility” standard, required the utilization of a balancing test to weigh the risks and utilities of the products, as stated in some cases, a cost/benefit analysis.

Under the risk/utility test, a product may be found to be defective when the probability and seriousness of harm caused by the product outweighs the burden or cost of taking precautions against the risk. The risk/utility analysis takes into account a number of many different factors, commonly known as Wade factors.
A Debate Arises

The stated goal of the civil instructions subcommittee appointed by the Pennsylvania Supreme Court is to draft clear, concise instructions that are understandable to citizen jurors, while ensuring that the proposed instructions reflect the current law and case law.
The current debate between the plaintiffs bar and the defense bar centers on whether the suggested standard civil jury instructions pertaining to products liability cases accurately reflect the law of Tincher.  Important portions of these suggested products liability instructions have been challenged by members of the defense bar as being inconsistent with the Supreme Court’s analysis and ultimate decision in Tincher.

In an unprecedented move, members of the Pennsylvania Defense Institute even drafted and published its own recommended products liability jury instructions in 2016. Since that time, trial courts have been faced with strong arguments from each side as to the proper content for the jury charge in products cases.
Areas of Contention

Several areas of contention exists between the plaintiffs bar and the defense bar on the proper wording of products liability jury instructions.
While the suggested standard jury charges published by the PBI do not contain language pertaining to whether a product is “unreasonably dangerous,” the jury charge published by the defense bar adds that language. The defense bar also proposes the removal of language from the subcommittee’s instructions indicating that a product is dangerous if it lacks any element necessary to make it safe for its intended use as such language is only supported by the Azzarello decision which, as noted, was overruled.

Perhaps the sharpest area of dispute is the contention that the PBI’s suggested standard jury instructions maintains other language that is also consistent with the overruled Azzarello decision, namely that the product manufacturer or supplier is a guarantor of the safety of its product.  In the jury instructions propounded by the members of the defense bar, the Azzarello “guarantor” language is not included.
Some of these areas of contention can now be addressed in light of the Pennsylvania’s Superior Court’s most recent February 2018, decision issued in the ongoing saga of the Tincher case.

Latest Pronouncement

In its recent Tincher decision, the Pennsylvania Supreme Court confirmed that the inclusion of language in jury instructions consistent with the law set forth in Azzarello should be avoided as that decision was overruled by the Pennsylvania Supreme Court in its 2014 decision in Tincher.
The Pennsylvania Superior Court in Tincher more specifically determined that a new trial was necessary in that case, in part, because the jury instructions that were provided by the trial gave the jury an outdated definition of “defect” rooted in the overruled Azzarello case. The Superior Court noted that the trial court, relying upon the law of Azzarello, had instructed the trial court that a product is defective if it “lacks any element needed to make it safe for its intended use.”

The Superior Court ruled in Tincher that “if an incorrect definition of ‘defect’ under Azzarello calls for a new trial, an incorrect definition of ‘defect’ under Tincher should call for the same result.” Given that the trial court gave a charge under the law that the Pennsylvania Supreme Court explicitly overruled, the Superior Court in Tincher found this to be a fundamental error on the part of the trial court and, as such, the case was remanded for a new trial.

The decision by the Superior Court and its reiteration of the Pennsylvania Supreme Court’s notion that the Azzarello language has been disapproved supports the notion that, at a minimum, the Azzarello-type language contained in the PBI published suggested standard jury instructions is improper and should be revised to mirror the law of Tincher.

Action Needed to Quiet the Debate

The hope remains that members of the defense bar and the plaintiffs bar can work together with the civil instructions subcommittee to come to an agreement on the proposed language such that, one day in the not too distant future, there will be a set of products liability suggested standard civil jury instructions that litigants can rely upon in anticipation of trial and that trial court judges can simply read to the jury just like any other accepted instructions published by the PBI.
With a debate as loud as the one currently going on between the plaintiffs bar and the defense bar, the suggested standard civil jury instructions should be revisited, particularly since certain language contained in these instructions has been called into serious question by the reasoning in the most recent decision in the Tincher case issued by the Pennsylvania Superior Court.

Unfortunately, it may be a while before any revisions may take place. It is likely that there will be a continuing debate between the plaintiffs bar and the defense bar over whether such changes are even necessary. If a decision is eventually reached that revisions to the suggested jury instructions should be made to quiet the debate and conform the instructions more closely with the law of Tincher and its progeny, it will then likely take another extended period of time before the subcommittee can secure a consensus before a revised set of instructions are issued and published.
And so, in the meantime, given the sharp differences between plaintiffs attorneys and defense attorneys on the proper language to be utilized to charge a jury in a products case, along with the fact that a valid argument exists that that at least portions of the current PBI instructions are not entirely consistent with post-Tincher law, trial court judges should be leery of simply reading to the jury the suggested standard civil jury instructions on this topic as they are currently worded.

In an effort to avoid appellate issues, or worse, remands of products liability cases for expensive, docket-clogging new trials, trial court judges might instead order the opposing parties to work out their differences prior to trial and to stipulate to agreed-upon language for the charge of the jury.
Where, as is likely, the parties are not able to come to an agreement on the proposed language for the charge to the jury, trial court judges should alter the current PBI jury instructions with amendments to render them consistent the applicable law as may continue to be developed by the appellate courts in post-Tincher cases.

The current contested PBI instructions are, after all, only suggested jury instructions that are not binding upon trial courts of Pennsylvania.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at

Monday, March 26, 2018

Federal Court Confirms Reinsurer Not An 'Insurer' Under Bad Faith Statute

In the case of Three Rivers Hydroponics, LLC v. Florists’ Mut. Ins.  Co., No. 15-809 (W.D. Pa. Feb. 20, 2018 Hornak, J.), the court held that, under the facts presented in this case, a reinsurer is not an “insurer” for purposes of the bad faith statute.  

In this matter, the insured initially filed a bad faith and breach of contract suit against its insurer.  The insured later filed an Amended Complaint alleging bad faith and breach of contract against the reinsurer.  

The reinsurer filed a Motion to Dismiss all claims.   The reinsurer argued that it was not an “insurer” for purposes of Pennsylvania’s Bad Faith Statute.  

The court ruled that “Pennsylvania law requires the Court to consider two factors when determining whether a party is an ‘insurer’ for the purposes of the bad faith statute: (1) the extent to which the company was identified as the insurer on the policy document; and, (2) the extent to which the company acted as insurer.”

In this case, the court found that the reinsurer was not listed anywhere on the policy documents.  Accordingly, under the first factor noted above, the court found that reinsurer was not a party to the policy between the insured and the insurer.  

With regards to the second factor, the court noted that “a party acts as an insurer when it ‘issues policies, collects premiums, and in exchange assumes certain risks and contractual obligations’.”

Here, the court found that the reinsurer was not the insured’s ‘insurer’ for purposes of the bad faith statute because it did not issue the policy to the insured, it did to collect premiums from the insured, it did not make any insurance payments to the insured, and it did not assume any risk or contractual obligations towards the insured.

Accordingly, the court dismissed the bad faith claim against the reinsured because that entity was not an ‘insurer’ for purposes of the bad faith statute.

The court additionally dismissed the breach of contract claim against the reinsurer as there was no contractual privity between the reinsurer and the insured.  

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  Check out Attorney Applebaum's blog HERE.

Western District Federal Court Remands Bad Faith Claim to State Court

In the case of Sciulli v. GEICO, No. 16-1907 (W.D. Pa. Feb. 26, 2018 Flowers Conti, C.J.), the court remanded a case back to State Court under the below circumstances.

According to the Opinion, the carrier had removed the case to Federal Court based upon diversity jurisdiction. At the time of removal, there was diversity and “there was a good faith belief that the amount in controversy exceeded $75,000 because [the insured] could recover punitive damages under the Pennsylvania Bad Faith statute.”

However, the insured later agreed to voluntarily dismiss the insurance bad faith claim leaving only an $18,000 breach of contract claim.

The court applied 28 U.S.C. § 1447(c), which provides that “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”

Applying section 1447(c), the court found the case no longer involved a dispute in excess of $75,000, and the insurer agreed that remand was proper.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  Click HERE to visit that Blog (Highly Recommended!).

Thursday, March 22, 2018

Eastern District Federal Court Addresses Corporate Negligence Claims In Med Mal Case

In the case of McClure v. Parvis, No. 17-3049 (E.D. Pa. Feb. 6, 2018 Savage, J.), the court denied a Motion to Dismiss filed by a Defendant in a medical malpractice claim raising issues of corporate negligence.

The court noted that a claim for corporate negligence arises from the policies, acts, or omissions of the entity itself, and not from specific acts of the individual employees of the entity.  

Notably, while this court indicated that corporate negligence theories are not limited to hospitals, it otherwise noted that the courts of Pennsylvania have not extended such theories to apply to physician offices as such offices are not comprehensive health centers that are responsible for the total health of its patients.  

The court also noted that, to decide whether a particular health care entities owes the Plaintiff a non-delegable duty requires an examination of the extent of that entity’s oversight and control of the medical professionals directly providing the care to the Plaintiff.   As this determination is fact-based, the court ruled that this analysis could not be completed at the Motion to Dismiss stage. 

Accordingly, the court denied the Motion to Dismiss filed in this matter and allowed the case to proceed into discovery.  

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

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

Wednesday, March 21, 2018

Pennsylvania Superior Court Holds that Social Media Posts Must Be Authenticated Before Being Admissible in Evidence

Every once in a while a criminal court decision comes along that may have an impact in civil litigation matters.

In the case of Commonwealth v. Mangel, No. 2018 Pa. Super. 57 (Pa. Super. March 15, 2018 Musmanno, S.J. Ott, J., Shogan, J.)(Op. by Musmanno, J.), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked.  In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor's motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the Defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the Defendant's name was not enough to allow the evidence in.

The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and instant messages are authenticated.

Judge Musmanno wrote that "authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”

The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch which dealt with the admissibility and authentication of cell phone text messages.  Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014) (cell phone text messages); See also In the Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (computerized instant messages).

Click this LINK to view my Pennsylvania Lawyer magazine article on the Commonwealth v. Koch case.

Click this LINK to view the Tort Talk post on the split Pennsylvania Supreme Court decision in Commonwealth v. Koch.

In the recent Commonweath v. Mangel case, the court noted that the Koch court held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”

The Mangel court ruled, in a case of first impression, that the same standard should apply to social media posts in the criminal court context.

Anyone wishing to read the Commonwealth v. Mangel decision may click this LINK

Commentary:  It is safe to predict that the same standards would be applied in a civil litigation matter as well with respect to the admissibility of social media posts, emails, or text messages.

Source:  Article by Zack Needles entitled "Superior Court Adopts Standard for Authenticating Social Media Post." The Legal Intelligencer (March 21, 2018).

Monday, March 19, 2018

Federal Court Addresses Standards for Jurisdiction Over Out-of-State Defendant

In the case of Wylam v. Trader Joe’s Co., No. 3:16 - CV - 2112 (M.D. Pa. Jan. 18, 2018 Mariani, J.), a Pennsylvania Federal Court denied a Motion to Dismiss without prejudice in this matter involving a question of proper general personal jurisdiction over an out-of-state Defendant.  

The Court ruled that there is no general jurisdiction over the moving third party Defendant in this matter.   Rather, that Defendant was noted to be a foreign  company with a principle place of business abroad.   No minimal contacts within Pennsylvania were seen in the record.   More specifically, the Opinion noted that the Defendant did not have any physical presence in the Commonwealth of Pennsylvania. 

Judge Robert D. Mariani
M.D. Pa.
Judge Robert D. Mariani noted that the Plaintiff was attempting to rely upon a stream of commerce personal jurisdiction argument.  The Court noted that this argument has never been approved by the Pennsylvania Supreme Court, while not being decisively rejected either.  

However, the court in Wylam ruled that a single in-state sale, without some additional conduct directed towards the forum state, did not support the Plaintiff's stream of commerce jurisdiction argument.  

The Court also noted that the fact that a Defendant’s products are carried by national retailers is also insufficient to establish jurisdiction in any state.  

The court also generally noted that it is the burden of the Plaintiff to establish jurisdiction and that speculation in this regard is not sufficient.  

As stated, the court denied the Motion to Dismiss without prejudice.   However, the Plaintiff was allowed to complete jurisdictional discovery, limited to the stream of commerce issue in an effort to gather further support for the jurisdictional arguments.  

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

Friday, March 16, 2018



Whenever possible try to be specific in your writing.  Being more specific brings clarity to your writing.

When describing people in your briefs or letters, it helps the reader to follow your train of thought when you use a person's name regularly in conjunction with repeated references to them as "the Plaintiff" or "the Defendant," as opposed to pronouns such as he, she, his, or her, etc.

For example, rather than saying "the injured party," periodically refer to "the Plaintiff, John Smith."  Instead of repeating a general reference to "the tortfeasor," or "the liable party," refer to the "Defendant, Jane Jones" or if there is only one defendant, simply reference "the Defendant."

In appellate briefs, an argument may be easier to follow if "Plaintiff" or "Defendant" is used as opposed to "Appellant" or "Appellee."  Some recommend that "Appellant" or "Appellee" never be used.  The use of "Appellant" or "Appellee" disrupts the flow of the reader's reading of the brief as they may have to look back up earlier in the brief for a reminder as to which party filed the appeal at issue.

During one of your multiple edits of a brief or letter, it may pay to focus one of those edits on skimming through the written product to specifically look for pronouns and asking if that sentence can be made more clear by the insertion of a more specific identification of a person in the place of a she, he, his, or her designation.

Being more specific in your writing will foster clarity in your letters and briefs and will enable your audience to easily understand your summary or argument.

Thursday, March 15, 2018

Post-Koken Scorecard and Facebook Discovery Scorecard Updated on Tort Talk Blog

Both the Tort Talk Post-Koken Scorecard and the Tort Talk Facebook Discovery Scorecard were recently updated.  To view, click on the Scorecard titles in the previous sentence.

The Post-Koken Scorecard and the Facebook Discovery Scorecard are also always freely accessible by going to and scrolling down the right hand column of the blog and clicking on the dates noted under "Post-Koken Scorecard" and "Facebook Discovery Scorecard."

I ask that Tort Talkers please continue to forward to my attention a copy of any Orders or Opinions you may generate on Post-Koken or Facebook Discovery issues in order that these Scorecards may be continually updated for the benefit of all

There is still a dearth of appellate cases on these areas of the law and, until appellate decisions are handed down, the resolution of these issues will handled on a county-by-county basis depending upon how the trial court judges of a particular county have previously decided (and there are still some splits of authority within certain counties on certain issues).

Thank you for reading Tort Talk and supporting the blog with your submissions.

Wednesday, March 14, 2018

Pennsylvania Superior Court Addresses Standards for Applying Doctrine of Forum Non Conveniens

In the case of Moody v. Lehigh Valley Hospital-Cedar Crest, No. 3580 EDA 2016 (Pa. Super. Jan. 18, 2018 Bowes, J. Lazarus, J. and Blatt, J.) (Op. by Bowes, J.), the Superior Court found that the trial court applied the wrong legal standard in applying the doctrine of Forum Non Conveniens.  

This Opinion provides a nice overview of the current status of the law supporting doctrine of Forum Non Conveniens.  

The court in Moody held that multiple medical malpractice Defendants may be sued in any county where venue is proper against any one Defendant, subject to the doctrine of Forum Non Conveniens.

Here, the court found that the claims asserted by the Plaintiff against one Philadelphia Defendant were not fabricated such that the claims against the Defendant in the Plaintiff’s chosen venue were not incidental or tangential.  

The court otherwise noted that the fact that all but one of the Defendants were in a different county was not controlling on the issues presented. 

The Superior Court additionally noted that the trial should not have decided the Motion for Transfer of Venue under the doctrine of Forum Non Conveniens without allowing additional discovery to be secured from most of the Defendants.  

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 law firm of Reed Smith for bringing this case to my attention. 

Proper Venue in a Medical Malpractice Claim

In the case of Kellock v. Wilkes-Barre Hospital Company, LLC, No. 17-CV-4655 (C.P. Lacka. Co. Feb. 20, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by hospital Defendants in a medical malpractice action in which the Defendants asserted improper venue of the case. 

According to the Opinion, the hospital Defendants were relying upon Pa. R.C.P. 1006(a.1), which provides that a medical professional liability action may be brought “only in a county in which the cause of action arose.” 

The Defendant hospitals asserted that, according to the allegations of the Plaintiff’s Complaint, the negligent acts and/or omissions occurred in Luzerne County and that Lackawanna County, where this case was filed, only had tangential or peripheral contact with the tort claims.  

The court reviewed the allegations before it and noted that the Plaintiff’s Complaint asserted negligent acts against the Luzerne County healthcare professionals with regards to the birth of the Plaintiff’s child.   However, the Plaintiffs also alleged that, after their newborn was transferred to the Lackawanna County hospital within 4 ½ hours of birth, the Lackawanna County medical professionals also allegedly deviated from the standard of care pertaining to the additional treatment provided.  

Based upon the allegations in the Plaintiff’s Complaint, Judge Nealon found that negligent healthcare services were allegedly also furnished in Lackawanna County such that the malpractice cause of action against the Lackawanna County hospital arose in the form of Lackawanna County. 

The court went on to note that, pursuant to Pa. R.C.P. 1006(c)(2), provides that an action seeking to enforce joint and several liability against multiple Defendants may be brought in any county in which venue is proper against any one Defendant.  

Accordingly, the court ruled that, since venue was proper in Lackawanna County as to the Lackawanna County Defendants, and given that the Plaintiffs have asserted joint and several liability against the Luzerne County and Lackawanna County Defendants, venue was found to be proper in Lackawanna County for all Defendants under the rules stated above.   

Consequently, the court overruled the Defendants’ Preliminary Objections asserting improper venue. 

 Anyone wishing to review this case may click this LINK.

Monday, March 12, 2018

Mock Trial Jurors Needed for Regional Finals

The High School Mock Trial Competition is continuing in counties across the Commonwealth.  Please consider serving as a Juror in your County's Competition to score the high school students competing in the tournament as attorneys and witnesses. 

Locally in Northeastern Pennsylvania, Attorneys are still needed to fill the Jury Box for the Finals of the Regional County Mock Trial Competition.   

These kids put hours and hours of preparation into their presentations.  It would be great for them if they could present their cases to a full Jury Box.  

If you can spare your time and expertise, it would be greatly appreciated if you could please volunteer to help the Competition by serving as a Juror.


Jurors needed for Final Round

Wednesday, March 14, 2018
William J. Nealon Federal Courthouse

6:00 p.m.

To Sign Up to Serve as a Juror

  LBA at 570-969-9161 

Jennifer Menichini

Superior Court Affiims That Discovery Rule Does Not Extend Statute of Limitations in Wrongful Death/Survival Actions (Non-Precedential)

Tort Talkers may recall the prior Tort Talk post on the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Estate of Marsh v. Lizza, No. 2106-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.) in which the court granted Preliminary Objections of a Defendant in a case where a Plaintiff attempted to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or court and beyond the applicable statute of limitations in this wrongful death and survival action.  

As an update, it is noted that the Pennsylvania Superior Court has affirmed the trial court’s decision in a non-precedential Opinion under the caption of Marsh v. Lizza, No. 532 MDA 2017 (Pa. Super. Feb. 13, 2018 Olson, J., Dubow, J., and Strasberger, J.) (Non-Precedential Mem. Op. by Olson, J.).

Notably, in affirming the trial court’s decision, the Pennsylvania Superior Court agreed that the 2-year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, and that the latest date on which the statute of limitations begins to run for wrongful death and survival claims is the date of the decedent’s death.  

Accordingly, the Superior Court found that, as a matter of law, the trial court properly sustained a Defendant’s Preliminary Objections and struck the Complaint.  

 Anyone wishing to review the Pennsylvania Superior Court's Non-Precedential Decision in this case may click this LINK.

Friday, March 9, 2018

Punitive Damages Claim Allowed to Proceed Where Tractor Trailer Driver Allegedly Fell Asleep At Wheel

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 granted in part and denied a Defendant’s Motion For Summary Judgment relative to a Plaintiffs’ punitive damages claims in a trucking accident case.  The court also denied the Defendant's Motion to Bifurcate the trial with respect to the punitive damages claims.  

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 rear end 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.  

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.   

In reviewing the record, the court pointed to facts brought to light during discovery that raised issues of fact as to whether the Defendant acted recklessly.  In particular, the court noted that there were facts discovered that could support the Plaintiff's argument that the Defendant tractor trailer driver was fatigued, had possibly fallen asleep at the wheel immediately before the accident, and that the tractor trailer driver appreciated the risk posed to others on the highway by his driving in a fatigued state. 

Accordingly, the court found that such issues of material fact were sufficient to allow the claims for punitive damages to proceed against the tractor trailer driver.  

Judge Munley also ruled that the Defendant tractor trailer driver's employer could be held vicariously liable for punitive damages if the tractor trailer driver was hit with such damages by the jury.

However, the court granted the Defendant's Motion for Summary Judgment with regards to the Plaintiff's direct claim against the tractor trailer driver's employer for punitive damages.  The court ruled that there was no evidence presented to establish that the employer knew, or should have known, that its tractor trailer driver would drive in a fatigued state at the time the accident occurred.

Anyone wishing to review this decision by Judge James Munley may click this LINK.

Judge Munley's prior decision on similar issues in the case at the Motion to Dismiss stage can be viewed in this TORT TALK Blog Post, which also contains a Link to that prior decision.

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, March 8, 2018

Punitive Damages Claims Allowed to Proceed Based Upon Distracted Driving Due to Cell Phone Use

In the case of Hilliard v. Panezich, No. 1988 of 2015 (C.P. Lawrence Co. Dec. 1, 2017 Cox, J.), the court denied a Defendant’s Motion for Partial Summary Judgment filed by a Defendant in an automobile accident case where the Plaintiff alleged that the Defendant was driving under the influence of marijuana and was also engaged in distracting driving due to looking down at his cell phone on his lap at the time of the accident.  

The court noted that the record before it contained evidence of recklessness including lab results indicated intoxication of the Defendant, the Defendant’s admission of a pattern of driving after smoking marijuana in the past, that the Defendant was traveling at 50 mph in a 45 mph speed limit zone, that the Defendant failed to observe a stop sign, and that the Defendant had looked at his phone on his lap to change music at the time of the accident.

In his decision, Judge Cox noted that Pennsylvania appellate courts have not yet addressed the issue of what standards allow for punitive damages claims to be raised in conjunction with fact patterns involving distracted driving and cellular phones.  

Judge Cox went on to review a number of state and federal trial court decisions from across the Commonwealth of Pennsylvania which have indicated that additional allegations of recklessness beyond mere cell phone use may be required to allow a punitive damages claim to proceed beyond the summary judgment stage.   As noted above, the court also noted the above additional factors raised in this particular case to allow the punitive damages claim to move forward.  

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

Source: “Digest of Recent Cases,” Pennsylvania Law Weekly (January 9, 2018).

Tuesday, March 6, 2018

Pennsylvania Superior Court Rules That Failure to Pretreat a Surface Prior to Winter Storm Is Not a Basis to Impose Liability in a Slip and Fall Case

In the case of Collins v. Phila. Sub. Devel., No. 2018 Pa. Super. 17 (Pa. Super. Jan. 31, 2018 Panella, J., Olson, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a premises liability Defendant under the Hills and Ridges Doctrine where the evidence before the trial court confirmed that the winter storm, described in the record as a blizzard, was still active at the time of the Plaintiff's alleged slip and fall on ice and/or snow.

According to the Opinion, there was even a video of the Plaintiff's slip and fall in which it could be seen that it was still snowing at the time of the incident.  The trial court had concluded that no reasonable person viewing the video could conclude that the weather conditions at the time of the fall were anything other than a blizzard.

As generally slippery conditions were being created at the time of the Plaintiff's fall, the Superior Court agreed with the trial court's decision that the Hills and Ridges Doctrine defeated the Plaintiff's claim.

The decision is also notable for the court's ruling that the Defendant's alleged failure to pretreat a walking surface was not a basis upon which to impose liability under Pennsylvania law.

The court rejected the Plaintiff's efforts to assert that, under an exception to the Hills and Ridges Doctrine, the dangerous condition was created by the negligence of the landowner in failing to pretreat the surface with ice melt products prior to the anticipated storm.  The court found that this theory did not fall within the neglect of the defendant exception to the Hills and Ridges Doctrine.

The Collins referenced a prior Superior Court decision noting that there is no duty imposed to salt an area during a snowstorm or even immediately thereafter;  rather, the landowner is entitled to a reasonable time to take action.  See Op. at p. 12-13.  As such, the court found that Pennsylvania law does not impose any duty on landowners to pretreat surfaces in anticipation of an impending winter storm.

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

Source:  "Court Summaries" by Timothy Clawges in the Pennsylvania Bar News Vol. 28, No. 4 (Feb. 19, 2018)


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Friday, March 2, 2018

Judge Mannion of Federal Middle District Court Addresses Punitive Damages Claims in Products Liability Context

In the case of Dyvex Industries, Inc. v. Agilex Flavors & Fragrances, Inc., No. 12 - CV - 0979 (M.D. Pa. Feb. 12, 2018 Mannion, J.), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania addressed the current status of punitive damages law in the context of a products liability case. Ultimately, the court found that the Plaintiff failed to plead facts sufficient to support a claim for punitive damages under the case presented.  

Generally speaking, the court noted that Plaintiff law requires conduct on the part of a Defendant that is so outrageous as to demonstrate willful, wanton, or reckless conduct.   The law also requires that a subjective appreciation of the risk of danger is also necessary to support such a claim.  

In this case, the court found that, since the moving Defendant did not retain any control over any aspect of the manufacturing of the subject product, that Defendant could not be found to have had the requisite culpable mental state to support a claim of punitive damages against the Defendant.  The court also noted that the record revealed that this Defendant was in compliance with all applicable regulations.  
Judge Malachy E. Mannion
M.D. Pa.
Judge Mannion otherwise noted that entering the law does not allow for punitive damages under a claim of a breach of contract.  

Ultimately, the court found that the evidence revealed that, at most, the moving Defendant’s conduct amounted to negligence, which is insufficient to support a claim for punitive damages as a matter of law.  

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 law firm of Reed Smith for bringing this case to my attention.