Motion for Remittitur Granted in Med Mal Case

In the case of Harker v. Chan, No. 3:15-CV-277 (W.D.Pa. July 27, 2018 Gibson, J.), Judge Kim Gibson of the Western District Federal Court granted a Defendant's Post-Trial Motion for remittitur in a case in which the jury entered a verdict in excess of $47 million dollars in a medical malpractice case.

The case arose out of allegations of medical malpractice associated with the infant Plaintiff suffering disfigurement when his head was wrapped in ACE bandage shortly after birth.  The court noted that while there was evidence that the infant was permanently disfigured and that hair would not grow in certain spots, there was evidence that such conditions could improve with time and that there was no brain damage or cognitive impairment suffered by the child.

After reviewing the standards applicable to motions for remittitur, the court found that the jury's verdict shocked the judicial conscience.  The court noted that, under the law, if the motion to remit is granted, the award cannot be lowered to below an amount that does not shock the judicial conscience.
It was also noted by the court that the law requires that the Plaintiff be given the option of a new trial on damages in conjunction with the order on the reduced amount of the verdict that will be allowed by the court.

The court reduced the $43.75 million dollar non-economic damages portion of the verdict to $16 million and gave the Plaintiff's 14 days to consider whether to accept the Court's ruling or to proceed to a new trial on damages.

Anyone wishing to review this decision may click this LINK.

Source:  Article:  "Judge Cuts $47M Med Mal Verdict by Half, Finding It 'Shocks the Judicial Conscience."  By Max Mitchell.  The Legal Intelligencer (July 30, 2018).

Minnesota Claims Rep Ordered by Federal Court To Come to Pennsylvania for Deposition in Post-Koken Auto Case

Minnesota

In his recent decision in the case of Centini v. MetLife Auto & Home, No. 3:17-cv-02144 (M.D. Pa. April 3, 2018 Munley, J.), Judge James M. Munley of the Federal Middle District Court of Pennsylvania granted a Plaintiff’s Motion to Compel the deposition of the carrier’s claims professional.  

The court additionally ordered that the claims representative’s deposition would be conducted in Pennsylvania and not in Minnesota where the claims representative was apparently located.  

The court additionally noted that the claims representative would be subjected to a complete deposition concerning the subject uninsured motorist claim at issue. 

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

Language of UIM Rejection Form Upheld in Commercial Vehicle Setting (Non-Precedential)

In its non-precedential decision in the case of Fatai King v. US Xpress Inc, et al, No. 16-2623 (3d Cir. July 11, 2018), the Third Circuit Court of Appeals affirmed a District Court's finding that an uninsured rejection form in a commercial policy was valid. 

According to a review of the Opinion, there were additional sentences in the rejection language of the form beyond that required by the 75 Pa.C.S.A. Section 1731.

The Fatai King court noted that a verbatim recitation of the statutory language was not required to render a UIM rejection form valid. The court noted that the changes to the form at issue in this case were appropriate to tailor the form to the commercial vehicle context to which it applied.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Summary Judgment Granted in Part and Denied in Part Under Tincher Analysis

In the case of Mercurio v. Louisville Ladder, Inc., No. 3:16-CV-412 (M.D. Pa. May 31, 2018 Mariani, J.), the court granted summary judgment in part and denied it in part in a design defect products liability case. 

The case arose out of a Plaintiff's fall from a ladder.

In this decision, the court noted that the admissibility of the Plaintiff’s design defect expert required a Daubert hearing on the Defendant's Motion in Limine seeking to preclude the Plaintiff's expert from testifying. 

The court additionally found that there was no basis for the Plaintiff’s expert’s opinion that the warnings on the product at issue were defective.  The court noted that the expert’s opinion in this regard was a spur of the moment comment during depositions.    The court additionally found that the Plaintiff’s expert was not qualified to evaluate the warnings at issue.  

Judge Robert D. Mariani
M.D. Pa.

Judge Mariani also concluded that, under the new post-Tincher law, compliance with industry standards by the defense is evidence that a jury may consider as relevant to a product’s risk/utility defect test.  

The court also reaffirmed that the Azzarello case was overruled by the Tincher decision.  

Judge Mariani also confirmed that, under the current status of Pennsylvania products liability law, there is no longer a bright line between negligence and strict liability theories in a given case.  

In the end, the court denied the Defendant's Motion for Summary Judgment relative to the design defect and breach of implied warranty claims.  However, the court did grant the Defendant summary judgment on the claims of a manufacturing defect, inadequate warning, and breach of express warranty.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order entered in the case.

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention.  

Bring Your Case to A Close with Cummins Mediation Services

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.

Recklessness and Punitive Damages Claims Stricken in Alleged Cell Phone Distracted Driving Case

In the Cumberland County case of Manning v. Barber No. 17-7915 Civil (C.P. Cumb. Co. June 21, 2018 Masland, J., Beck, J., and Placey, J.) (Op. by Masland, J.), the court granted a Defendant’s Preliminary Objections and dismissed a Plaintiff’s punitive damages claim in a case in which the Plaintiff alleged that the Defendant driver was texting while driving.  

According to the Opinion, the Plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The Plaintiff alleged that the Defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the Plaintiff’s vehicle. The Plaintiff additionally alleged that, at the time of the accident, the Defendant was not looking at the roadway because she distracted while looking at and/or texting on her cell phone. 

In the Complaint, the Plaintiff alleged allegations of recklessness and sought an award of punitive damages. The Defendants filed Preliminary Objections to the Complaint asserting that the allegation of cell phone use alone, absent other indicia of recklessness, was insufficient to support and award of punitive damages.  

The court initially rejected the Plaintiff’s argument that the Defendants had improperly attacked or challenged the legality of the punitive damages sought in the Complaint by way of Preliminary Objections.  The court in this matter distinguished the Plaintiff’s reliance upon a case in which a Defendant had utilized a demurrer to attack a claim of punitive damages.

In this Manning case, the Defendants asserted Preliminary Objections on the basis of a failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter...” under Pa.R.C.P. 1028(a)(2).  

The court found that the Defendant’s Preliminary Objections were appropriate given that the Defendant was requesting the court to strike the allegations of recklessness and the demand for punitive damages as improper due to the fact that those claims were based upon allegations that only constituted negligence. 

The Manning court went on to address the merits of the Preliminary Objections presented.   After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”  

The court did note that there was a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cell phone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cell phone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.  

In reviewing the Plaintiff’s Complaint, the note noted that the additional allegations presented by the Plaintiff were simply boilerplate allegations that the Defendant was inattentive and going too fast, all of which allegations the court found only amounted to a classic claim of negligence, and not  recklessness.

The court in Manning additionally rejected the Plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance, the Manning  court declined to accept the Plaintiff’s argument in this regard.  

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

I send thanks to Attorney Andrew T. Rhoades of the Camphill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.  

Summary Judgment Granted Where Plaintiff Tripped in Supermarket Over Open and Obvious Pallet Stacked with Cases of Water

(Not a picture from this case)

In the recent case of Walker v. Save-A-Lot, No. 18-CV-95 (E.D. Pa. June 12, 2018 DuBois, J.), summary judgment was granted in favor the defense in a case in which a Plaintiff fell over a pallet while stepping backwards.

According to the Opinion, the pallet was located in the middle of the aisle in the frozen foods section.  The Plaintiff walked towards the pallet and stopped her cart next to the pallet and went went to the door of the frozen foods section to grab a pizza.  As she then backed up, she tripped over the pallet.  The Plaintiff alleged that she never saw the pallet because she was focused on getting her pizza from the freezer unit.

The court found that, based upon the record before it, the pallet over which the Plaintiff tripped, was an open and obvious condition.  It was noted that the Plaintiff had walked past another pallet in the same aisle and that both pallets were stacked high with cases of water.  The court pointed to the well-settled law that landowners are not liable for injuries caused by known of obvious conditions.

Quoting the well-known case of Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), the court in Walker stated that “[a] danger is deemed to be ‘obvious’ when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.’”

While the question of whether a danger is known and obvious is typically a jury question, the court noted that where, as here, no reasonable minds on a jury could disagree on a conclusion that the danger was known and obvious, the court could decide the issue on a summary judgment motion.

The court additionally noted that it is "hornbook law in Pennsylvania that a person must look where he is walking."  

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

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention. 

Pennsylvania Federal District Court Remands Stacking Issue to State Court For a Decision

In the case of Allstate Fire and Cas. Ins. Co. v. Archer, No. 1:17-CV-331 (W.D. Pa. June 4, 2018 Hornak, J.), the Western District Federal Court declined to address a stacking issue raised in a declaratory judgment action after finding that the issue would more properly be decided by the state court given the contractual issues presented.  

As such, in this matter, the court remanded the case to the state court system for a decision.  

In so ruling, the court weighed several factors with respect to the proper exercise of federal jurisdiction primarily as set forth in the case of State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d. Cir. 2000) [citations omitted] and Reifer v. Westport, 751 F.3d 129, 145-46 (3d. Cir. 2014).  

As such, this Western District Federal Court decision raises the question as to whether the federal district courts of Pennsylvania will accept stacking declaratory judgment actions for a decision, or will continue to remand such issues back to the state court for resolution.  

Please click this LINK to view this decision online.

I send thanks to Attorney Scott Cooper, Esquire of the Harrisburg, PA office of Schmidt Kramer for bring this case to my attention.

Notable But Non-Precedential Superior Court Post-Koken Decision Noted (From Back in 2016)

I recently came across a notable, non-precedential, post-Koken decision from back in 2016 entitled Zellat v. McCulloch, No. 1610 W.D. 2014, 2016 W.L. 312486 (Pa. Super. Jan. 26, 2016) (Bowes, Olson, and Stabile, J.J.) (Mem. Op. by Bowes, J.) (Non-precedential).   

Unfortunately, this post-Koken decision on notable issues was not published by the Pennsylvania Superior Court and was, instead, listed as a non-precedential decision.  

The hope remains that the Pennsylvania Superior Court and the Pennsylvania Supreme Court will publish any and all decisions related to post-Koken issues as any guidance on these still novel and developing issues would be of great help to both the bench and the bar in litigating these types of cases.

The case of Zellat involved a post-Koken lawsuit in which the Plaintiff sued both the third party tortfeasor on a negligence claim and her own underinsured motorist carrier on a UIM claim. 

At the trial level, the Allegheny Court of Common Pleas allowed the case to proceed in front of a jury without the UIM insurance company Defendant being mentioned.  Nor was the type of insurance involved mentioned.  

At trial, the jury found that the tortfeasor’s negligence was not the factual cause of any harm. The Plaintiff appealed.  

Among the many arguments listed on appeal by the Plaintiff was that she was denied due process because the UIM carrier was not mentioned or identified at trial.   In this regard, the Plaintiff relied upon the prior decision of Stepanovich v. State Farm, 78 A.3d 1147 (Pa. Super. 2013).  

Similar to its previous decision in the Stepanovich case, the Superior Court held in Zellat that it was not per se reversible error not to identify the insurance company when the insurance company Defendant is in a joint trial with the third party tortfeasor.  

The court in Zellat found this Stepanovich decision to be on point on the issue whether a Plaintiff is able to establish prejudice when the insurance company is not identified or mentioned.   The court in Zellat stated that, similar to as to the Stepanovich decision, prejudice was not established by the failure to identify the UIM carrier at trial.  

As such, the Zellat court found that the trial court did not abuse its discretion in not identifying the UIM carrier during the joint trial with the tortfeasor.  

In this appeal, the Plaintiff also presented a secondary contention that she was unfairly “tagged-teamed” by the participation of two (2) defense lawyers, one of whom represented the tortfeasor and the other who defended the case for the UIM carrier.   

This argument was rejected by the Superior Court in Zellat given that the Plaintiff did not request a new trial as part of her appeal process with respect to the participation of both defense counsel at trial. As such, this argument was rejected.  

Anyone wishing to read this case, may click this LINK.

Bring Your Case to a Close With Cummins Mediation Services

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.

Can A Bad Faith Claim Be Pled Where There is a Finding of No Coverage Due Under Policy?

In the case of Frantz v. Nationwide Ins. Co., No. 3:18-cv-0509 (M.D. Pa. May 15, 2018 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania appeared to part ways somewhat from the notion that a bad faith claim cannot exist in a matter where there is otherwise no insurance coverage due for a variety of reasons.  

In this case, the court dismissed the insured’s breach of contract claim after finding that no insurance coverage was due under the circumstances presented.  Nevertheless, the court still gave the Plaintiff leave to file an Amended Complaint asserting common law and statutory bad faith claims. 

In his Opinion, Judge Caputo cited the standard of review requiring that a bad faith Plaintiff has to show that there was no reasonable basis to deny coverage and that the insured knew or recklessly disregarded this fact.  

However, the court then set forth another standard, indicating that “[a] plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a ‘lack of a good faith investigation into facts, and failure to communicate with the claimant.’”  

It appears that the amendment to the Complaint was allowed based upon this second standard, which was treated here as an independent basis for a §8371 bad faith claim even if no coverage is actually due under the policy.  

Judge Caputo did otherwise reaffirm that §8371 does not cover alleged bad faith in soliciting a policy and, therefore, did dismiss that claim in this matter.  

I do not have a copy of this decision handy but the docket number is provided above.

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.  

Summary Judgment Reversed in Alleged Misuse of a Safety Harness in a Products Liability Case

In its recent decision in the case of Zimmerman v. Andrew, No. 662 WDA 2017 (Pa. Super. June 1, 2018 Bowes, J., Panella, J. and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of a Defendant in a products liability case.  

According to the Opinion, the Plaintiff was injured when a safety harness he was utilizing while cutting down a tree allegedly failed when the Plaintiff was 35 feet up in a tree and the Plaintiff fell to the ground and sustained personal injuries.  

The record before the court indicated that the Plaintiff had gone to the home of his friend to cut down a dead tree at the request of the friend.   The friend had obtained the harness from another friend who had purchased the harness but never used it.   The harness came with paper instructions.  

The Plaintiff skimmed the instructions but did not thoroughly read the instructions.   The Plaintiff also admittedly saw a warning label on the harness itself but did not read it completely.  

The Plaintiff, who had limited personal experience using a harness in construction work and from seeing them used on television programs featuring people cutting trees, thought the use of the harness was self-explanatory.  

However, the Plaintiff and his friend put the harness on the Plaintiff backwards.  

Thereafter, when the Plaintiff utilized the harness to bear his weight high up in the tree, the harness failed and the Plaintiff fell to the ground.  

The Plaintiff sued the manufacturer of the harness under claims of strict product liability, negligence, and breach of warranty.  

The Plaintiff more specifically alleged that the harness was sold with insufficient strength and durability such that it was unreasonably dangerous.  The Plaintiff also asserted that the harness was sold with inadequate warnings regarding the proper use of the device.  

In its defense, the Defendant asserted the defenses of misuse of the product and comparative negligence.  

More specifically, the Defendant asserted that the harness was intended for use on construction projects by workers trained on how to use it and that the Plaintiff’s use of the device in a tree without training was a misuse, not an intended use, and further was not foreseeable.  The defense also asserted that the Plaintiff was wearing the harness backwards.

The trial court had entered summary judgment after finding that “[t]here is absolutely nothing that we would make a manufacturer think that” someone would use the product as the Plaintiff did and that “it would be a waste of time to take this to a jury” because the jury would have to find in favor of the Defendant if they followed the court’s instructions as to the law.  

On appeal, the Pennsylvania Superior Court reviewed the current status of Pennsylvania strict liability law under §402A of the Restatement (Second) of Torts as well as under general negligence principles given the Plaintiff’s separate claims in this regard.   The Superior Court confirmed that, under the current status of Pennsylvania law, the Plaintiff’s use of the harness in an unforeseeable or highly reckless manner could serve to defeat the Plaintiff’s §402A claim.  

Citing to Reott v. Asia Trend, Inc., 55 A.3d 1088, 1097 (Pa. 2012), the Superior Court noted that the Pennsylvania Supreme Court had recognized that product misuse and highly-reckless conduct are affirmative defenses to a strict liability claim.   According to Reott, to establish a misuse of the product, the Defendant must show that the use was “unforeseeable or outrageous.”  

The Reott court had noted that highly reckless conduct is akin to evidence of misuse and requires the Defendant to prove that the Plaintiff would have been injured despite the curing of the alleged product defect, or that the misuse of the product by the plaintiff was so extraordinary and unforeseeable as to constitute a superseding cause.  

The court in this Zimmerman case went on to note, citing other precedent, that it is “well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a designed defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.”   See Op. 8. [emphasis in Zimmerman].

In this Zimmerman decision, the court pointed to various issues of fact, along with issues raised by the parties' experts, to  conclude that the Plaintiff tendered sufficient evidence that, if accepted by the jury, would establish that the harness was defective, that the Defendant was negligent in the product’s design and instructions, and that these deficiencies were a proximate cause of the Plaintiff’s injuries.  

As such, the Superior Court found that it was error for the trial court to rule on the record before it that the Plaintiff’s misuse of the harness was the sole cause of the accident. 

The Superior Court also ruled that there were material issues of fact relative to the negligence issues such that the Plaintiff’s negligence claims should also be allowed to proceed to the jury.  

In light of the its other conclusions, the Superior Court additionally allowed the Plaintiff’s breach of warranty claim to also proceed to the jury.  

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

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my attention.

Passenger Grabbing Steering Wheel Does Not Amount to Lawful Possession of Vehicle

In the case of State Farm Automobile Insurance Company vs. Dooner, 2018 Pa. Super. 146 (Pa. Super. June 4, 2018 Bender, P.J.E., Lazarus, J., Kunselman, J.) (Op. by Bender, P.J.E.), the court affirmed a trial court’s granting of summary judgment in favor of a passenger’s automobile insurance carrier on a coverage question where the passenger grabbed the steering wheel from the driver and caused the car to crash.

According to the Opinion, the insured was a passenger in a friend’s vehicle when a fight broke out and the insured jerked the steering wheel, causing the car to hit an oncoming police cruiser.   The driver of the vehicle and the police officer sued the friend for the accident.  

The friend’s automobile insurance carrier filed a declaratory judgment action seeking a ruling that it had no duty to defend, indemnify, or otherwise provide liability coverage to the friend under her insurance policy.   As noted, the trial court granted the carrier’s Motion for Summary Judgment, finding that the carrier owed no duty of coverage.  

The court noted that, under the friend’s automobile insurance policy, coverage was provided for a “non-owned” car if the car was “lawful in the possession of you or any resident relative.”  

The injured parties asserted that the policy did not define “possession” or “lawful,” and was, therefore, ambiguous such that the policy had to be construed in favor of the insured and/or the injured party.  

The trial court had found that the friend’s grabbing of the steering wheel from the passenger seat did not amount to a taking of lawful possession or control of the vehicle.  On appeal, the appellate court found no abuse of discretion in the trial court’s finding in this regard.  

The appellate court also noted that, even if the friend had been in “possession” of the vehicle when she grabbed the steering wheel, such possession would not have been “lawful.”  

In this regard, the court agreed with a decision from another state in which it was held that a passenger who grabbed a steering wheel was actually interfering with the vehicle’s operation and such action did not constitute “possession” of the vehicle.  

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

Source:  “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (July 2, 2018).

Pennsylvania Superior Court Applies Intricacies of Limited Immunity Provision of the Mental Health Procedures Act in a Med Mal Case

In the case of Dean v. Bowling Green-Brandywine, No. 963 MDA 2017 (Pa. Super. July 2, 2018 Gantman, P.J., Panella, J., and Dubow, J.)(Op. by Panella, J.), the Pennsylvania Superior Court addressed the issue of whether a trial court properly entered a nonsuit against the Plaintiff under an application of the limited immunity provision of the Mental Health Procedures Act (MHPA).

Ultimately, the Superior Court affirmed the entry of the nonsuit in favor of some Defendants but not others in the matter.

The court noted that the limited immunity provision of the Act is intended to limit the criminal and civil liability of those charged with treating the mentally ill.  Under the Act, those engaged in treating mentally ill individuals "under the act" cannot be held liable absent "willful misconduct or gross negligence."

The court generally noted that the Act applies to the "voluntary inpatient treatment of mentally ill persons."  Prior to this decision, the term "mentally ill persons" had not been defined by the Act or case law.

According to the Opinion, the case involved a twenty-three year old individual who voluntarily applied to a treatment facility to address his addiction to pain medications he had been taking as prescribed for injuries following an ATV accident.  Less than ten days after his admission, the individual was found unresponsive on the floor of his room in the treatment center.  He subsequently passed away.

Thereafter, a medical malpractice suit was filed against several Defendants, some of whom pled the limited immunity provision of the MHPA as a defense.  During the course of trial, the remaining Defendants requested, and were granted, permission to add that defense to their pleadings.

At the close of the Plaintiff's case, the trial court granted a nonsuit in favor of all of the Defendants, finding that the Plaintiff had failed to show evidence of willful misconduct or gross negligence on the part of the Defendants and that, as such, the Defendants were entitled to the protections of the limited immunity provision.

In its Opinion, the Superior Court affirmed that the limited immunity provision was an affirmative defense ("immunity from suit") that has to be pled as an affirmative defense in a defendant's pleadings.

The appellate court reviewed the entry of the nonsuit with regards to each specific Defendant, finding that some Defendants were indeed entitled to a nonsuit, and others were not.  A critical question in this case was whether the treatment of the decedent's addiction amounted to a treatment of a mental illness with respect to each particular Defendant.

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

I sent thanks to Attorney Cynthia L. Brennan of the Berwyn, PA law office of Post & Post for bringing this case to my attention.

Summary Judgment Granted in Fall From Ladder Products Liability Case

In the case of White v. The Home Depot, Inc., No. 5:17-cv-4174 (E.D. Pa. May 10, 2018 Leeson, Jr., J.), the court granted Defendants’ Motion for Summary Judgment in Plaintiff’s action for strict liability, negligence, and breach of warranty due to the Plaintiff’s fall off of a ladder while painting his bathroom. 

According to the Opinion, the Defendants contended that the Plaintiff tried to move the ladder while still standing on it.   It was the Plaintiff’s contrary assertion that he did not feel the ladder move before he fell and that he did not know what happened.  

The court noted that the Plaintiff did not allege that there was any mechanically wrong with the ladder, its structure or its design.  

As part of these proceedings, the Defendants moved to exclude the testimony of the Plaintiff’s experts opining that the warnings on the ladder were inadequate.  The court found that this expert testimony was inadmissible because it did not satisfy the reliability and fit requirements.   According to the Opinion, the Plaintiff’s expert did not inspect the ladder or the bathroom floor, did not conduct any witness interviews, and did not reconstruct the accident or even perform any test on the ladder.  

Accordingly, the court held that the Plaintiffs’ claims failed because no reasonable jury could conclude that the ladder was defective.   To the contrary, the court stated that the Defendants did warn of the dangers of the ladder slipping on the surface below and that the Plaintiff knew or that warning.  As the Plaintiff never testified as to any additional warnings he felt that he needed with respect to the ladder and otherwise failed to explain while the general warning not to set the ladder on a loose or slippery surface was inadequate, the court entered summary judgment.  

To review this decision, click this LINK.

Sample Post-Koken UIM Trial Jury Instructions From Judge James A. Gibbons of Lackawanna County

My associate attorney, Stephen T. Kopko, ran the defense at a straight Post-Koken UIM jury trial last week in the Lackawanna County County Court of Common Pleas in the case of Singer v. State Farm, No. 15-CV-2859.

Here is a LINK to a copy of the printout of the UIM jury instruction Judge James A. Gibbons presented to the jury over our objection on behalf of the defense.

Judge Gibbons noted that this jury instruction was based on the instruction that Judge Terrence R. Nealon utilized in the case of Moritz v. Horace Mann Ins. Co. which is written up HERE on Tort Talk.