Tuesday, October 16, 2018

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors


In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.


Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA


Monday, October 15, 2018

BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION SERVICES


Please call 570-346-0745 or email me at dancummins@comcast.net to schedule your Mediation.

HOPE TO SEE YOU THERE: Presenting Forrest Gump Themed Civil Litigation Update Seminar at Nov. 8, 2018 Luzerne Co. Bench Bar Conference


On November 8, 2018, Daniel E. Cummins of the Scranton law firm of Foley, Comerford & Cummins along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price,  will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.

Friday, October 12, 2018

TORT TALK TIP



HANDLE YOUR MAIL THE DAY IT COMES IN


One of the best ways to keep your files moving is to answer the regular mail that comes in on the day that it comes in -- as you open your mail, dictate a letter or email in response to the mailing or to the client with a status update.

Give any mailings that provide notice of appointments for your calendar to your assistant with the rule being that the assistant must mark it down on the calendar the same day as opposed to being able to put it aside to do later.

When you run through your mail right away, it's done.  And the case is one step, however small, moved forward and closer to its eventual conclusion, whatever that may be.

As Ben Franklin once said, "Don't put off until tomorrow what you can do today."

Punitive Damages Claims Allowed Against Tractor Trailer Driver Allegedly Using Cell Phone in White Out Conditions

Reckless?

In the case of Ehler v. Old Dominion Freight Line, No. 2018 -00307 (C.P. Lebanon Co. Aug. 30, 2018 Charles, J.), the court denied Preliminary Objections filed by a trucking Defendant against claims of recklessness and punitive damages based upon allegations that the commercial truck driver was allegedly using a cell phone at the time of the accident. 

This matter arose out of a multi-vehicle accident involving 64 vehicles under wintry conditions on a highway.  

After reviewing the general law pertaining to punitive damages, the court also pointed to Pennsylvania’s Distracted Driving Law, 75 Pa. C.S.A. §1622, which prohibited commercial drivers from utilizing hand held mobile devices while driving, except in emergency situations.  

The court otherwise noted that a review of case law from Pennsylvania and other jurisdiction did not provide a clear consensus as to whether the use of a cell phone while driving, in and of itself, constituted recklessness.

However, the court noted that, under the facts before it, driving a commercial truck while using a cell phone was a violation of state law.  

The court additionally noted that the weather involved white out conditions at the time of the accident.   The court included this factor in determining that the Preliminary Objections should be denied on claims of recklessness in terms of using a cell phone while driving a commercial vehicle in white out conditions.  

Although the court denied the Preliminary Objections, it noted that the issue could be subject to further review once discovery was completed on issues presented.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Thursday, October 11, 2018

Assumption of Risk Doctrine Valid and Can Support Entry of Summary Judgment (But Summary Judgment Denied Here)

In his recent decision in the case of Smerdon v. GEICO, No. 4:16-cv-02122 (M.D. Pa. Sept. 21, 2018 Brann, J.), the court granted in part and denied in part a Motion for Summary Judgment filed by Defendant GEICO, and granted a Motion for Partial Summary Judgment by the Plaintiffs in a Post-Koken uninsured motorist matter.

According to the Opinion, the Plaintiff was shopping at a Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash from a customer service employee.   The Plaintiff and several others chased the robber out into the parking lot and towards the robber’s car, which the robber had left running.  

While these individuals scuffled with the robber, the Plaintiff entered the passenger side of the vehicle and attempted to remove the keys from the ignition.  The robber put the vehicle in drive, stepped on the gas, and the Plaintiff was injured by the vehicle as a result.  

As the robber had no car insurance, the Plaintiff pursued an uninsured motorist claim against GEICO.  

Under the GEICO uninsured motorist provisions of the policy, it was provided that the Plaintiff must prove that she was “legally entitled to recover” from the operator of an uninsured motor vehicle in order to recover UM benefits.   

The Plaintiff filed a Complaint against GEICO alleging breach of contract and bad faith.  Under the breach of contract claim, the Plaintiff sought a declaratory judgment requiring GEICO to cover her for uninsured motorist coverage.  The Plaintiff filed a bad faith count seeking damages, arguing that GEICO’s handling of her claim amounted to bad faith under 42 Pa. C.S.A. §8371.   

A main issue before the court was whether the assumption of risk doctrine operated as a total bar to the Plaintiff’s recovery such that she was not "legally entitled to recover" against the uninsured operator of the vehicle that injured her.  

Judge Matthew W. Brann
M.D. Pa.
In his Opinion, Judge Brann reaffirmed the continuing validity of the assumption of risk defense under Pennsylvania law.   The court noted that, “[a]lthough disfavored and narrowly applied, assumption of the risk remains a viable affirmative defense under Pennsylvania law.”   See Op. at p. 7 [citations omitted].

Notably, the court additionally confirmed that summary judgment can be granted on the assumption of risk doctrine as a matter of law.   Id.  

In this regard, Judge Brann stated that, “to grant summary judgment on assumption of the risk as a matter of law, the court must – conclusively and beyond question – find that the Plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk.”  Id.  citing with “See, e.g.” signal, Zeidman v. Fisher, 980 A.2d 637, 641, Pa. Super. 2009).

Here, the court denied GEICO’s motion and granted the Plaintiff’s motion on the assumption of risk issue.   In this regard, Judge Brann found that there were no facts that demonstrated that the Plaintiff was aware of the particular danger from which she was ultimately injured.  

More specifically, there were no facts to establish that the Plaintiff was specifically aware of the risks that the robber would run her over with his vehicle or otherwise cause her to fall down and strike her head on the pavement.   

The Court noted that awareness of a general risk of harm does not amount to an awareness of a specific risk as required by the assumption of risk doctrine.   

The court also held that, under the assumption of risk doctrine, a court should look at what a Plaintiff actually knew, appreciated, and assumed in terms of the risks, rather than what a Plaintiff should have known under the circumstances.   Here, the court found that there were no facts to demonstrate that the Plaintiff was subjectively aware of the danger that would eventually befall her.  

Judge Brann also found that there were no circumstances where the risk of harm was so obvious with this case in that the Plaintiff implied relieved the robber from exercising due care for the Plaintiff’s safety.   

Accordingly, based upon the above factors, the court concluded that the assumption of risk doctrine did not serve to bar the Plaintiff’s claims.  
 
The court also added that, to the extent that GEICO questions the reasonableness of the Plaintiff’s actions at trial, that is an inquiry that should be resolved through comparative negligence principles and not assumption of the risk principles.  The court noted that whether the Plaintiff acted reasonably under the circumstances remains an issue for the jury to decide.   

On the separate bad faith claim, GEICO asserted that it did not act in bad faith because it had a reasonable basis to assert the assumption of the risk doctrine as an affirmative defense and given that GEICO did not unreasonably delay the matter in evaluating the case presented.  

After reviewing the law of bad faith under §8371, Judge Brann held that the Plaintiff cannot sustain her burden of proof on the bad faith claim.   The court found that GEICO had a reasonable basis to question coverage because the assumption of risk doctrine remains a valid defense under Pennsylvania law.   

The Court found that the fact that GEICO ultimately erroneously relied upon that doctrine in this case, did not advance the Plaintiff’s bad faith claim because the presence or absence of bad faith does not turn on the legal correctness of the basis for a carrier’s denial of an insured’s claim.   

The court additionally noted that, even if it was assumed that GEICO lacked a reasonable basis to rely upon the assumption of risk doctrine as an affirmative defense, the Plaintiff still failed to present clear and convincing evidence that GEICO knew or recklessly disregarded that lack of a reasonable basis as required by bad faith liability.   

Judge Brann reiterated that, under the bad faith statute, the Plaintiff’s burden of proof is “substantial: ‘Bad faith must be proven by clear and convincing evidence and not merely insinuated.  This heightened standard requires evidence so clear, direct, weighty, and convincing as to enable a clear conviction, without hesitation, about whether or not the Defendants acted in bad faith.’”   [citations omitted].  

The court additionally found that the Plaintiff could not show that GEICO unreasonably delayed in the handling of her claim as the parties communicated with each other over several months in an effort to resolve the case.   Judge Brann also noted that, by the time the Plaintiff filed her Complaint, she had still not produced certain documentation, including the police report, requested by the carrier.   As such, the court found that any delay incurred in GEICO’s resolution of Plaintiff’s claims cannot be construed as unreasonable.  

In the end, the court noted that, because no reasonable jury could find in the Plaintiff’s favor, GEICO’s Motion for Summary Judgment on the bad faith claim was granted. 
 

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

Punitive Damages Claim Allowed to Proceed in Legal Malpractice Action


 
In the legal malpractice case of Perez v. Mathis, et.al., No. 1769 - CV - 2018 (C.P. Monroe Co. Sept. 6, 2018 Williamson, J.), the court addressed an issue of first impression in Pennsylvania with regards to whether a claim for punitive damages should be allowed to proceed in these types of actions.  

The court noted that there was a considerable split of authority on how punitive damages are treated for purposes of professional negligence actions when reviewing cases from around the United States.  

The court noted that several states hold that punitive damages are meant to be a deterrent and a punishment for wrongdoing, which cannot be accomplished when they are assessed against anyone other than the original wrongdoer.  

Other courts emphasize the need to place the innocent client in the same position as he would have been absent the attorney’s negligence.   

In the end, the court allowed the Plaintiff to proceed on the claim for the lost punitive damages in the underlying bad faith claim as compensable damages in this legal malpractice suit.  The court ruled in this fashion as the Plaintiff was successful in the underlying lawsuit with substitute counsel and may have recovered punitive damages from the bad faith claim in that suit but for the original attorney’s alleged negligence in withdrawing the bad faith claim.  

More specifically, the Plaintiff had retained his original attorneys to pursue a lawsuit against Liberty Mutual Insurance Company.   The Plaintiff alleged that, over his objection, his original attorneys agreed to enter a stipulation to dismiss portions of the Plaintiff’s federal Complaint, including the claim for bad faith.    The Plaintiff alleged that the attorneys did so without his knowledge and indirect opposition to his expressed wishes. 

The Plaintiff eventually hired substitute counsel and ultimately secured a judgment against the insurance carrier on the remaining claims.  

In this follow-up legal malpractice case, the Plaintiff was additionally allowed to proceed on a  specific claim for punitive damages against the Defendant law firm.  The court denied the Preliminary Objections against the claim for punitive damages. 

The court found that punitive damages in the legal malpractice action were potentially warranted where the Plaintiff asserted that the attorney recklessly went against his wishes in the underlying action.  The court noted that a jury could potentially find that such acts or omissions by the Defendant law firm were outrageous.  As such, that claim was allowed to proceed.

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Motion to Dismiss Overseas Company Granted on Jurisdictional Grounds


In the case of Pearce v. Mizuho Bank Ltd., No. 18-306 (E.D. Pa. Aug. 27, 2018 Kelly, J.), the court granted a Defendant’s Motion to Dismiss for lack of personal jurisdiction.

In so ruling, the court stated that an overseas company cannot be “at home” in Pennsylvania sufficient to support allegations of general personal jurisdiction over that Defendant.  

The court additionally held that the fact that a subsidiary of the company had a branch office in Pennsylvania is not sufficient to impose jurisdiction.   The court noted that, in this case, the subsidiaries activities were not in any way related to the allegations raised in the lawsuit.  

The court also stated that the record that did not show that the overseas Defendant had engaged in any Pennsylvania-specific activities.  With this particular Defendant, its treatment of its customers did not depend upon their location.  

The court also reaffirmed the rule that an alleged failure to act does not constitute an activity in any jurisdiction.  

The court also noted that the Plaintiff in this matter had no direct transactions with the proposed Defendant.

Nor were there any Pennsylvania-centered activities by the Defendant against which to apply the “arise from”/”relate to” test.  

The court also stated that there was no evidence that the Defendant had any knowledge of the Plaintiff being located in Pennsylvania.

As such, the Motion to Dismiss for lack of personal jurisdiction was granted.  

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Wednesday, October 10, 2018

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA


Summary Judgment Entered on Claims of Negligence Against Insurance Agent Regarding Request for Increased Auto Coverage


The Opinion of Judge Thomas F. Burke, Jr. in the case of Feist v. Andes, No. 2013-2678 (C.P. Luz. Co. July 19, 2017 Burke, J.), a decision from over a year ago, was recently published in the Luzerne Legal Register.  

In this decision, Judge Thomas F.  Burke, Jr., of the Luzerne County Court of Common Pleas granted a carrier’s Motion for Summary Judgment case where the Plaintiffs asserted that their insurance carrier and agent refused to provide them with the increase UIM coverage they had requested before one of the Plaintiff was involved in a motor vehicle accident.

Judge Thomas F. Burke, Jr.
Luzerne County
The Plaintiffs alleged that they had met with the insurance agent on two (2) separate occasions and had requested increase UIM coverage at each meeting but were not granted the same by the insurance agent.  The Plaintiffs asserted that the insurance agent allegedly attempted to talk them out of such increase coverage and/or did not provide them with such coverage. 

The court emphasized that the Plaintiff’s knew at the end of their meetings with the agent that they did not secure that increased coverage. The court also noted that the Plaintiffs admitted that they were aware that they could have sought out another insurance agent or another insurance company but did not do so.

The Plaintiffs sued the insurance agent and the carrier under counts of negligence, breach of fiduciary duty and/or duty of loyalty, and breach of a duty of good faith and fair dealing.  

The court granted summary judgment on each of these theories of liability.  On the negligence theory, the court found that, as a general rule of law in Pennsylvania, insurance agents have no common-law duty to their customers unless the insurance agent receives consideration for his services apart from the premium which is paid by the customer for the insurance policy itself, or whether the agent acts as an insurance counselor through an extensive and complex course of dealings with regards to the client’s business matters.  

The court reiterated that even accepting the facts noted above as being true, the Plaintiffs knew when the left the meeting with the insurance agent that they had not been granted increased coverages and that they likewise knew that they could have switched to a different insurance agent and/or carrier.   

Applying the principles of negligence law, the court was unwilling to find that an exception to the general rule of law that insurance agents have no common law duty to their customers existed in this case.  

Given this ruling on the negligence claim against the insurance agent, the court also entered judgment in favor of the carrier on the claim that the carrier owed a duty to the Plaintiff under the doctrine of respondeat superior.   The court also noted that there is no independent cause of action for respondeat superior liability under Pennsylvania law. 

The court additionally entered summary judgment in favor of the agent and the carrier on the claim of a breach of fiduciary duty and/or duty of loyalty.  

Judge Burke noted that, under Pennsylvania law, the purchase of an insurance policy is considered to be an “arm’s length” transaction, in which the carrier owes no fiduciary duty apart from the terms defined in the insurance contact.   

The court also noted that, generally, the relationship between an insurance agent and a customer cannot be characterized as a fiduciary relationship, except in limited circumstances in which the policyholder has authorized the insurance agent to make decisions on behalf of the policyholder.  

Such was not the case in this matter based upon the court’s review of the facts.   Judge Burke found that the record was devoid of any evidence that would show that the Plaintiff had relinquished their decision-making authority to the insurance agent or that the insurance agent had an “over-mastering” influence over the Plaintiffs.  

In this regard, the court noted that both Plaintiffs indicated that they had business knowledge with regards to purchasing automobile and homeowner’s insurance over the years.   Both Plaintiffs also acknowledged that they had consulted with and received legal advice from an attorney about increasing their coverage limits.   As such, the court found that the Plaintiffs were not relying upon the insurance agent’s advice, but rather, were relying upon their own knowledge as well as the advice of their attorney.

The court ruled in this case that the Plaintiff did not rely upon any purported statement by the insurance agent that they had sufficient UM/UIM coverage limits.   Rather, the Plaintiffs testified that they did not agree with the insurance agent’s assessment in this regard and had every intention of increasing their limits at some future time. 

The court emphasized the Plaintiffs nevertheless continued to renew their insurance policies during the ten (10) month time period leading up to the accident by paying the premiums by being completed away as to the current status of their limits.  

Lastly, the court also granted summary judgment in favor of the carrier on the Plaintiffs’ claim of a breach of a duty of good faith in fair dealing.   In so ruling, the court found that there was no evidence of any contract between the Plaintiffs and the Defendant insurance agent.   The court noted that the breach of a duty of good faith and fair dealing are intertwined and arise out of contract law.  

Given that there is no contract with the insurance agent, the court entered summary judgment in favor of the insurance agent on these claims.   The court additionally entered summary judgment in favor of the carrier as the Plaintiffs attempted to latch this theory on the carrier by way of a theory of respondeat superior.   The court noted that, since there is no contract found between the Plaintiffs and the insurance agent, there could no liability on the part of the carrier as well under a respondeat superior theory of liability.  

Overall, the court entered summary judgment on all of the claims presented. 

At the end of this Opinion is an Editor’s note indicating that the Pennsylvania Superior Court affirmed Judge Burke’s decision by way of an August 21, 2018 non-precedential decision under docket number 1326 MDA 2017 (Pa. Super. Aug. 21, 2018).  

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

Claims Reps Cannot Be Sued Under Pennsylvania's Insurance Bad Faith Statute


The excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog recently highlighted the case of Reto v. Liberty Mutual Insurance, No. 18-2483 (E.D. Pa. Aug. 8, 2018 Savage, J.), in which the court confirmed that a bad faith action under the bad faith statute cannot be brought against a claims representative.

In this matter, the Plaintiff brought a UIM breach of contract, loss of consortium, and bad faith action against both the claims representative and the carrier. 

The carrier argued that the claims representative was “fraudulently joined” by the Plaintiff in an effort to defeat Federal Court diversity jurisdiction. The carrier additionally asserted that bad faith actions against claims representative are not permissible. 

The Eastern District Federal Court agreed with the carrier’s position and noted that the claims asserted against the claims representative were “wholly insubstantial and frivolous.”   

The court stated that, as a matter of law, there is no basis to support a claim against the claims representative because only the carrier may be held liable under the claims presented.   The court noted that the claims representative, who was only an agent of the carrier, did not have a separate contract with the insured.

The court additionally held that a bad faith claim could not be asserted against a claims representative as the bad faith statute only applies to insurance companies.  

As such, the court held that the Plaintiff had improperly joined the claims representative in this lawsuit.  As such, the claims representative was dismissed from the case and the Plaintiff's motion to remand was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks for 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.





Tuesday, October 9, 2018

Judge Nealon Addresses Motion to Preclude Completion of Deposition Due to Deponent's Anxiety


Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a Motion for Protective Order to Preclude the Completion of a Deposition Due to the Deponent's Anxiety in the wrongful death medical malpractice case of Ezrin v. Hospice Preferred Choice, Inc., No. 16-CV-7103 (C.P. Lacka. Co. Oct. 3, 2018 Nealon, J.).

This case arose out of a negligence action pertaining to hospice care provided by a nursing home.

After a charge nurse's deposition was recessed when her anxiety disorder reportedly became exacerbated, and after a dispute arose over the conclusion of the deposition, the nursing home filed the motion for protective order at issue.

After reviewing the record provided to the court on the issue, Judge Nealon ruled that that nursing home had not met its burden of supporting its request that the deposition be adjourned and not recommenced.

In particular, the court noted that a physician's report submitted on behalf of the anxious nurse, the nurse's physician noted that the nurse did not feel at the time of the deposition that she could complete her deposition.  In his report, the doctor also noted his opinion that the deposition should be postponed, as opposed to prohibited, in order to allow the nurse's anxiety to be brought back under control.

The court also noted that the record confirmed that the nurse was employed full-time by the nursing home and was responsible for 30 patients during each shift.

Overall, the court concluded that the nursing home had failed to show "good cause" to permanently prevent the resumption of the deposition on the grounds of unreasonable burden, oppression, or annoyance.  As such, the motion for protective order was denied and the nursing home was directed to produce the nurse to complete her deposition prior to the expiration of the discovery deadline.

In his Opinion, Judge Nealon cautioned the attorneys, including the attorney for the nursing home, against interrupting the deposition process, particularly after a question is asked and before the witness answered.  The court cited to case law confirming that there is no need for an opposing attorney to act as an intermediary, interpreting the meaning of questions for the witness or engaging in other unnecessary interruptions, during the course of a deposition.

The court noted that a less disquieting atmosphere during the recommenced deposition of the nurse may assist in keeping her anxiety at bay.

This Opinion contains a nice recitation of the standard of review for addressing motions for protective orders under Pa.R.C.P. 4012.  The Opinion can be viewed at this LINK

Friday, October 5, 2018

Rule 1925 Opinion By Trial Court Issued In Newsuan Case Regarding Contact with Witnesses in Civil Litigation Matter


In the case of Newsuan v. Republic Services, Inc., No. 1248 EDA 2018 (C.P. Phila. Co. Sept. 14, 2018 Rau, J.), the trial court judge issued a Rule 1925 Opinion supporting the trial court’s prior decision on the discovery issues presented in this matter relative to the attorney client privilege and the attorney work product doctrine. 

Tort talkers may recall a prior Tort Talk blog post on the court’s original decision in this case [June 20, 2018 - click HERE to view that post].

In this matter, the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident. According to the Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.  

In this more recent Rule 1925 Opinion, Judge Rau reiterated the rationale of the Court that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

Judge Rau also reiterated that the appeal has no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.  

Anyone wishing to review this decision may click this LINK.

Thursday, October 4, 2018

Latest Facebook Discovery Decision Uncovered (Northampton County)



For the latest social media discovery decision, check out the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, LLC, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the Plaintiff's alleged slip and fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the Plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity.  The Plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the Plaintiff's social media profiles.

In his detailed Opinion, Judge Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down around the Commonwealth by various county courts of common pleas as well as by courts from other jurisdictions.

No Pennsylvania appellate court decision was referenced by the Allen court as there are apparently still no such decisions to date.

In his Opinion, Judge Dally noted that the Defendant had pointed out discrepancies between the Plaintiff's deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the Plaintiff's Facebook profile depicting the Plaintiff engaging in certain activities.

After reviewing the record before the court, Judge Dally ruled that the defense had failed to establish the factual predicate of showing sufficient information on the Plaintiff's public pages to allow for discovery of information on the Plaintiff's private pages.

In a footnote 6, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the Defendant wishes to access further.

The court additionally noted that, in any event, "it would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party's social medial account by requiring the responding party to  to turn over their username and password, as requested by the Defendant in this case."  This the court found would be overly intrusive, would cause unreasonable embarassment and burden, and represented a discovery request that is not properly tailored with reasonable particularity as required by the Rules of Civil Procedure pertaining to discovery efforts.

In light of the above reasoning, the Defendant's Motion to Compel was denied.

Anyone wishing to review this decision may click this LINK.


To review the Tort Talk Facebook Discovery Scorecard click this LINK. 

The Scorecard can always be freely accessed by going to www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."

If you are willing to do so, please do not hesitate to send me a copy of any Social Media discovery or admissibility decisions you may come across in order that the Tort Talk Facebook Discovery Scorecard and be continually updated.  Thanks very much.  DEC






Wednesday, October 3, 2018

Application of Doctrine of Forum Non Conveniens Results in Transfer of Case from Philadelphia to Chester County



In the case of Ranck v. Coatesville Little League, Inc., September Term 2017 No. 01990 (C.P. Phila. Co. July 25, 2018 Patrick, J.), the Philadelphia Court of Common Pleas granted a Defendant’s Petition to Transfer Venue based upon the doctrine of forum non conveniens.  

This matter arose out of an incident when the Plaintiff was allegedly injured while volunteering at a concession stand during a little league baseball game and a fryer full of hot cooking oil fell upon her, causing injuries.  Although the incident apparently occurred in Chester County, the Plaintiff filed suit in Philadelphia County.
  
The Defendant moved to transfer venue based upon the doctrine of forum non conveniens.  

The Plaintiff initially asserted that the Defendant waived this argument regarding improper venue because it did not raise the issue in Preliminary Objections.  

The court explained that the issues of improper venue and forum non conveniens were two separate and distinct issues.  

The court reiterated the rule of law that the question of improper venue could be waived if not raised by way of Preliminary Objections as required by the Rules of Civil Procedure.

However, the issue of forum non conveniens was not waived by the failure to assert the same in Preliminary Objections.  

The court noted that the issue of forum non conveniens was properly raised by way of petition under Pa.R.C.P. 1006(d)(1).  As such, the court found that the Defendant’s failure to raise the doctrine of forum non conveniens by way of Preliminary Objections did not serve to defeat its request for relief in this regard.  

Turning to the merits of the motion, the court held that venue in Philadelphia County would be both vexatious and oppressive under the circumstances. The court noted that none of the parties resided or did business in Philadelphia. The incident did not occur in Philadelphia.   All of the Plaintiff’s medical providers and other witnesses were located outside of Philadelphia. The court also stated that it was foreseeable that a visit to the ball park in Chester County where the incident happened may prove necessary for the jury to obtain a full understanding of the case at trial. 

The court even ruled that, given the Plaintiff’s claim of extensive physical injuries, venue in Philadelphia County would be oppressive to the Plaintiff as well in terms of having to travel to that county for the proceedings.  

Given that the record before the court confirmed that the parties’ connection to Philadelphia County were tenuous, the court found that a transfer of the case to Chester County based upon the doctrine forum non conveniens was warranted.  

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

Source: “Digest of Recent Opinion” Pennsylvania Law Weekly (Aug. 14, 2018).

Monday, October 1, 2018

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA


SAVE THE DATE: Presenting Forrest Gump Themed CLE at November 8, 2018 Luzerne Co. Bench Bar Conference


On November 8, 2018, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, I will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.