Friday, January 18, 2019

Personal Injury Medical Expenses and Wage Loss Evidentiary Issues Addressed by Pennsylvania Superior Court


In the case of Mader v. Duquesne Light Co., No. 609 W.D.A. 2018 (Pa. Super. Nov. 30, 2018 Murray, Bender, Shogan, J.) (Op. by Murray, J.), the Pennsylvania Superior Court addressed several trial issues pertaining to damages in a personal injury matter.   In the end, the court affirmed in part and reversed in part the trial court’s granting of post-trial motions after a verdict in favor of the Plaintiff.  

The court noted that Stipulations between the parties as to the amount of recoverable medical expenses are binding upon the court as well as upon the parties reaching such a stipulation. As such, the Superior Court ruled that an award of stipulated medical expenses was supported by the record.

The court also found that the jury’s award for future medical expenses was reasonable, even though it was closer to the projections offered by the defense in evidence.  

The Superior Court noted that the jury apparently resolved the conflicts in the testimony and found the Defendant’s evidence on future medical expenses to be more credible.   As such, the Superior Court found that the trial court’s granting of a new trial based upon alleged inadequacy of the future medical expenses award was an abuse of the trial court’s discretion.  

The court also noted that the granting of a new trial on one category of damages does not, in and of itself, justify a new trial on a different category of damages.   

In that regard, relative to the wage loss claims, the Superior Court found that, since the experts of both parties testified as to the Plaintiff’s inability to perform his job following the accident, the court found that the jury’s failure to award any lost wages to the Plaintiff justified a new trial in this particular category of damages.  

While the Superior Court found that an alleged failure on the part of the Plaintiff to seek alternative employment following an accident and thereby mitigate the damages alleged, can justify a lower award for wage loss, such evidence did not support a finding that the Plaintiff should not be awarded any wage losses at all.

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

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

SAVE THE DATE FOR FORREST GUMP THEMED CIVIL LITIGATION UPDATE CLE


Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

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.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at burdge@monroebar.org to register.

The Lackawanna Bar Association presentation will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email kmcdonough@lackawannabar.org .

The Lackawanna County CLE Lunch & Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at dancummins@comcast.net or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.

 
 
 
Thank you to Joe Cardoni at Exhibit A for helping with
the technical aspects of the Powerpoint presentation.
 
 




Thank you to Network Deposition Services for assisting with
the playback of the Powerpoint presentation.



 

Wednesday, January 16, 2019

PLEASE SIGN UP TO BE A MOCK TRIAL JUROR


High School Mock Trial Competition is upon us all across the Commonwealth of Pennsylvania.  Hoping you might consider serving as a Juror in the Competition in your County. 

Serving as a Juror can be a great learning experience and a rewarding endeavor for just a couple of hours of your time for a good cause.  Here is a LINK to my article extolling the benefits attorneys can realize from participating in the program for the benefit of high school students all across Pennsylvania.

Please consider checking in with your County Bar Association for more details on the Mock Trial Competition in your County.  Let's fill those Jury Boxes with attorneys willing to help give these students a great experience.

There are no CLE credits available for Mock Trial Competition participation yet, but I am helping a movement to work on that.  Here's a LINK to the Tort Talk blog post on the status of that movement.


Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on the following dates in Lackawanna County:


Trial Dates:

Round I
Tuesday, January 29, 2019 at 6:00 p.m.

Round II
Wednesday, February 6, 2019 at 6:00 p.m.

Makeup Round
Tuesday, February 12, 2019 at 6:00 p.m.

Semi-Finals
Wednesday, February 20, 2019 at 6:00 p.m.

Finals
Wednesday, February 27, 2019 at 6:00 p.m.

Please contact Ryan Campbell, Esq. at
hrlaw04@gmail.com
or
Katie Munley, Esq. at knealon@munley.com 
To Volunteer or for more information.

Split of Authority on Severing Bad Faith Claims in Allegheny County Post-Koken Matters Continues

In the case of Stoots v. Mutual Benefit Ins. Co., No. GD 16-024731 (C.P. Allegh. Co. Dec. 7, 2018 Colville, J.), the court granted a carrier's Motion to Sever and Stay the Bad Faith portion of this Post-Koken matter by Order only.

This Order can be viewed HERE.

As such, a split of authority in Allegheny County continues on this particular issue.  The split authority also continues all across the Commonwealth in the continuing absence of appellate guidance on whether bad faith claims should be severed and stayed in Post-Koken matters until the underlying UIM or UM claim is resolved first. 

According to the cases listed in the Post-Koken Scorecard on www.TortTalk.com, a vast majority of the county courts have ruled in favor of severing the bad faith claims.  The Scorecard can be accessed by going to Tort Talk and scrolling down the right hand column til you see "Post-Koken Scorecard."  Click on the date under that title and you will be taken by Link to the Scorecard.  Here's a quick LINK to the Scorecard for your easy reference.

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh law firm of Zimmer Kunz, PLLC for bringing this decision to my attention.


UIM Bad Faith Complaint Allowed To Stand

In the case of Baldridge v. GEICO, No. 18-CV-1407 (W.D. Pa. Dec. 3, 2018 Schwab, J.), the court denied a Defendant’s Motion to Dismiss the Plaintiff’s Complaint in a bad faith claim.

The court found that the Plaintiff adequately pled a statutory bad faith claim in this UIM case based upon allegations of improper claims handling.  

According to the Opinion, the Plaintiff alleged serious injuries, extensive treatment, and over a million dollars in lost wages and benefits.  

The Plaintiff complained that, although he voluntarily provided the carrier with medical records, sworn statement, other information, and also participated in an IME, the carrier allegedly did not respond to the Plaintiff for three (3) months and then abruptly denied the claim presented.  

The court found that the Plaintiff pled sufficient facts to support allegations both that the Defendant lacked a reasonable basis for denying the Plaintiff’s claim for UIM benefits and that the Defendant allegedly knew or recklessness disregarded its lack of a reasonable basis in denying the claim. 

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

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

Lessons in Bad Faith Complaint Drafting From Several Federal Middle District Court Decisions

As reported in the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog by Attorney Lee Applebaum, there were three (3) recent Federal Middle District Court of Pennsylvania Opinions handed down in December, 2018 in which the court found that the Plaintiff’s bad faith pleadings constituted conclusory allegations that had to be dismissed under the standard of review pertinent to validity of federal Complaints.  However, the Plaintiffs in all of these cases were permitted to file Amended Complaints.  All of the cases involved UIM claims.  

These cases include the following (click on the case name to be linked to the actual opinion):

Clark v. Liberty Insurance Company, No. 3:18-cv-01925 (M.D. Pa. Dec. 10, 2018 Caputo, J.) (an insured’s belief about a claims value that differs from the carrier’s evaluation is not enough to state a claim without actual facts objective supporting that belief; the failure to make a settlement offer after receiving documents is not bad faith without additional factual support such as facts pertaining to the complexity of the claim and the time that past between the date the information was supplied and the date that the Complaint was filed; the failure to submit to policy limits demands alone is not bad faith)

Moran v. USAA, No. 3:18-cv-02085 (M.D. Pa. Dec. 12, 2018 Caputo, J.) (general pleading delays on the part of the carrier in various respects and failure to act in good faith dismiss due to failure to plead supporting factual allegations). 

Winslow v. Progressive Specialty Ins. Co., No. 3:18-cv-01094 (M.D. Pa. Dec. 12, 2018 Rambo, J.) (conclusory allegations of bad faith lead to dismissal of Plaintiff’s Complaint on claims of bad faith pertaining to delays by the carrier and failures to make reasonable settlement offers or to pay the limits).  

Monday, January 14, 2019

A CALL TO ACTION FOR LACKAWANNA PRO BONO

I am republishing the below post at the request of Lackawanna Pro Bono.  I plan to attend the meeting as well unless I get jammed up by a doctor's deposition currently scheduled for the same time.  


Have no fear--this is just an informational meeting.  No commitments will be imposed.  Hope to see you there.  Thanks.




Please Join Members of the Judiciary,
Current Volunteers & Lackawanna Pro Bono Staff
for a
Pro Bono Volunteer Informational Session
Thursday, January 17, 2019
at 3:30 PM
Jury Lounge,
Lackawanna County Courthouse
PLEASE RSVP to Pam at
or by calling
570-961-2714
See You There!

Plaintiff Need Not Name Every Actor in a Med Mal Complaint

In the Lycoming County Court of Common Pleas decision in the case of Lutz v. Williamsport Hospital, No. 18-CV-0384 (C.P. Lycoming Co. July 5, 2018 Linhardt, J.), the court reaffirmed the well-settled principle that a Plaintiff was not required to specifically name every potential actor involved in the Plaintiff’s care at a defendant hospital when pleading vicarious liability claims against the hospital.  

As such, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s vicarious liability claims in this matter.  

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

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (Nov. 20, 2018). 


Plaintiff Permitted to Amend Med Mal Complaint to Conform Pleadings to Additional Information Gathered During Discovery


In the case of Kellock v. Wilkes-Barre Hospital Co., LLC, No. 17-CV-4655 (C.P. Lacka. Co. Dec. 20, 2018 Nealon, J.), the court addressed issues pertaining to a request to amend a medical malpractice Complaint to conform to the evidence adduced during discovery.  

According to the Opinion, the Plaintiffs in this matter filed a medical malpractice Complaint against various Defendants involved with the birth and neonatal care of their child.  

Following the deposition of one of the Defendant doctors, the Plaintiff sought to amend their Complaint to add additional allegations of negligence against that particular Defendant doctor and one of the hospitals involved based upon the information gathered at the deposition.   The Plaintiffs asserted that they should be permitted to amend their pleading under Pa.R.C.P. 1033 and given that the statute of limitations had not expired relative to the claims brought on behalf of a minor Plaintiff.  

Applying the liberal standards pertaining to amendment of pleadings and noting that the Defendants had not established any prejudice in this context, the court allowed the requested amendments.   The court also noted that the proposed amendments served to merely amplify the Plaintiff’s already existing allegations.   Based, in part, on these factors, the Plaintiff’s Motion to Amend was granted.   

Anyone wishing to review this decision by Judge Nealon in the Kellock case may click this LINK.

Friday, January 11, 2019

Lower But Reasonable Settlement Offers Do Not Constitute Bad Faith in UIM Claims

In the case of Rau v. Allstate Fire & Cas. Ins. Co., No. 3:16-cv-0359 (M.D. Pa. Dec. 6, 2018 Mariani, J.), Judge Robert D. Mariani ruled that a carrier's rejection of a policy limits demand, in and of itself, is not evidence of bad faith absent other evidence of unreasonable and intentional under-evaluation of the claims presented.  

This matter arose out of an alleged UIM bad faith case.   The basic allegations by the Plaintiff were that the carrier failed to provide a reasonable basis for its evaluation of the Plaintiff’s claims and that the carrier failed to negotiate in good faith.  

In its opinion, the court provided a detailed review of the discovery completed on the Plaintiff's medical history along with a review of the treatment of the Plaintiff (or lack thereof) and the medical examinations completed.  The court also analyzed the parties’ negotiations (during which the Plaintiff never wavered from a policy limits demand) and the details of a high/low arbitration that ultimately resulted in the carrier paying less than the policy limits but more than its evaluation.  

Judge Robert D. Mariani
M.D.Pa.
Based upon the record before the court, summary judgment was granted in favor of the carrier.  Judge Mariani found that the carrier came forward with sufficient evidence to establish an absence of any genuine issues of material facts as to its conduct in its dealings with the insured.  

More specifically, the court found that, in evaluating the case, the carrier relied upon expert reports and the absence of any documentation from the Plaintiff showing any surgical history for which more damages might be due.  

The court noted that, while the carrier’s settlement offers were lower than the policy limits demand submitted by the Plaintiff and the eventual arbitration award, this fact, in and of itself, does not support a finding of bad faith.   

To the contrary, the court noted that a low but reasonable evaluation does not constitute bad faith.   The evaluation by the carrier in this case was found to be reasonable based upon the carrier’s investigation and the sum it was willing to pay in setting the high/low arbitration parameters.  

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

A Split of Authority Continues With Respect to Allowing Expert Testimony in Insurance Bad Faith Cases


In the case of Debellis v. Mid-Century Ins. Co., No. 18-CV-214 (W.D. Pa. Nov. 25, 2018 Schwab, J.), the court addressed a Plaintiff’s Motion In Limine to preclude the carrier’s bad faith expert in this UIM bad faith litigation.  

The court observed that there continues to be a split of authority on whether expert testimony concerning a carrier’s bad faith is permissible and noted that this was a controversial issue.  

Nevertheless, this particular court allowed the carrier to put on its bad faith expert with certain limitations.

The court in Debellis found that expert testimony may be appropriate with respect to issues such as insurance claims adjusting procedures, a carrier’s compliance with industry customs and standards, and whether the carrier lacked a reasonable basis for denying a Plaintiff’s claim.  

In this federal court case, after noting that this matter involved a non-jury trial and that the court was familiar with bad faith law, the Debellis court concluded that the expert testimony offered by the carrier might assist the judge as the trier of fact “assuming [the carrier’s] claims handling procedures are complex.”   

However, the court otherwise held that the expert could not testify or give opinions that the court ultimately construed as legal conclusions.  

Judge Schwab additionally noted that he would give the expert testimony appropriate weight and caution that the testimony could be disregarded if it appeared to be nothing more than speculation unsupported by any specialized knowledge. 

Anyone wishing to review this decision may click this LINK.

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

Statewide Split of Authority Continues: Motion to Sever and Stay Bad Faith Claims Denied in Eastern District PA Federal Case

In the case of Goldstein v. Am. States Ins. Co., No. 18-CV-3163 (E.D. Pa. Nov. 28, 2018 Baylson, J.), the Eastern District Federal Court of Pennsylvania denied a Defendant carrier’s Motion to Sever and Stay an Plaintiff’s Bad Faith Claim in a post-Koken litigation.  

In this matter, the defense argued that the bad faith claim should be resolved through a bench trial in federal court and the breach of contract claim was to be tried in front of a jury.   The defense additionally argued that the resolution of the breach of contract claim could serve to moot the bad faith claim.   The defense additionally relied upon an argument that each of the claims presented would require different types of evidence such that the defense would be prejudice if the jury heard evidence on both the bad faith claims and the breach of contract UIM claim.  

The court ultimately ruled that bifurcation would not serve the interests of judicial economy.

The court additionally noted that it could address concerns of the jury considering irrelevant and/or prejudicial evidence when deciding the breach of contract claim through the use of appropriate jury instructions. 

In addition to the above-noted rationale, the court in this matter noted that the bad faith claim might not be rendered moot by a resolution of the breach of contract claim given that the claims of bad faith could arise for more than just the refusal to provide coverage. 

It was noted that, in this matter, the Plaintiff had additionally alleged bad faith conduct in the form of allegations that the Defendant carrier had failed to conduct a reasonable investigation of their claims, failed to adopt reasonable standards for prompt investigation, and otherwise breached other fiduciary duties owed to the Plaintiff.  

As noted, in the end, the court denied the carrier’s Motion to Sever and Stay the Bad Faith Claims.  

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

Consider visiting the Post-Koken Scorecard on the Tort Talk Blog to review the split of authority across Pennsylvania on this issue.  To get to the Scorecard, go to Tort Talk at www.TortTalk.com, scroll down the right hand column until you see "Post-Koken Scorecard," and click on the date below that title.

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 11, 2018)

Thursday, January 10, 2019

Standards for Damages in a Civil Trespass Action Reviewed by Judge Nealon of Lackawanna County


In the case of Huffsmith v. PPL Electric Utilities Corp., No. 11-CV-1012 (C.P. Lacka. Co. Nov. 3, 2018 Nealon, J.), the court addressed the appropriate standard for the assessment of damages in a trespass action.  

This case arose out of a trespass action filed by the Plaintiff against various Defendants seeking to recover damages for the allegedly intentional removal of fully-grown evergreen trees along the Plaintiffs’ property.   In this decision, the court addressed various Motions In Limine filed by the Defendant, PPL, which motions were joined in by the certain other Defendants as well.

In his Opinion, Judge Nealon reaffirmed the rule of law in Pennsylvania that a person is subject to liability for trespass on land in accordance with the provisions of the Restate (Second) of Torts §158.

Under that Restatement (Second) of Torts §158, a party is subject to liability to another for trespass if that party intentionally enters another’s land or causes a thing or a third person to do so.  

The court also noted that a person who authorizes or directs another to trespass upon another person’s land is also liable himself or herself as a trespasser to the extent if the trespass was committed directly by the person directing the activity.   Judge Nealon noted that this rule of law applies even if the authority or direction is given to one who is an independent contractor.   

Based upon the allegations of the Plaintiff that the subcontractor intentionally entered their land and unlawfully removed trees at the direction of PPL, the court found that liability for trespass may also be imposed upon PPL under the circumstances presented.   The court also rejected the contention of PPL that the Plaintiffs were barred from offering evidence of damages at trial as the Plaintiff’s never produced an expert report to document their damages.   The Plaintiffs countered with an argument that all landowners are competent to testify as to the value of their property.

In ruling on this issue, Judge Nealon noted that the proper measure of damages in trespass actions seeking to recover damages to injuries for land is well settled.   Under this settled rule of law, if the land is repairable, the measure of damage is the lesser of: (1) the cost of repair, or (2) the market value of the damage property (before it suffered the damage, of course).  

If the land is not repairable, the measure of damages is the decline in market value as a result of the harm.  

In this Huffsmith case, the trees removed were at least 70 feet tall and that it would take several decades before newly planted trees could become full grown to that height.   Given that the Plaintiffs were unable to find comparable affordable replacement for the twelve (12) trees that were removed that were 60-70 feet in height, the court found that the claimed damage to the Plaintiffs’ property by the removal of the trees was irreparable and that the proper measure of damages would be the decline in the market value as a result of the harm.   Judge Nealon additionally ordered that the Plaintiffs would be allowed to offer their lay opinions at trial as to the decline in the value of their property that was allegedly caused by the removal of the trees.  


Judge Terrence R. Nealon
Lackawanna County
Judge Nealon noted that any objection to that testimony by the Defendants would relate to the weight of that testimony rather than its competency or admissibility.  

On another issue, the court also ruled that, under Pennsylvania law, a tortfeasor’s actions in intentionally removing another party’s trees has been deemed sufficient to warrant the imposition of punitive damages in a trespass case.   Moreover, in this matter, the Plaintiffs allege that PPL directed the removal of their trees in retaliation for the Plaintiffs’ earlier objections to a PPL project, thereby arguably evidencing a state of mind to support a claim for punitive damages. 

Therefore, based upon the record before the court, Judge Nealon allowed the Plaintiffs’ punitive damages claims to proceed.  


This decision can be viewed online at this LINK.

Court Finds That Email Exchange Evidencing Basic Terms of Demand, Offer, Acceptance Supports Settlement of Claims


In the case of Hatchigan v. Kaplin Stewart, No. 3040 EDA 2018 (C.P. Phila. Co. Oct. 25, 2018 Anders, J.), the court found that the Defendants were entitled to enforce a settlement agreement of the parties reached by way of emails containing the essential terms of the Defendants’ settlement offer, the Plaintiff’s acceptance of the same, and the required consideration necessary to make a contract enforceable.

According to the Opinion, the Plaintiff also executed a Release that referred back to the email exchanges.  Issues arose in this matter between the parties thereafter and the defense filed a motion to enforce the settlement.

In this Rule 1925 Opinion issued by the trial court, that court recommended that the Superior Court affirm its decision enforcing the party’s settlement agreement.

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

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (Dec. 4, 2018)

Wednesday, January 9, 2019

Court Finds that Homeowner's Carrier Required to Defend Insureds Against Claims that Insured Caused Another's Suicide by Cyber-Bullying


In what may be a case of first impression, in State Farm Fire and Cas. Co. v. Motta, No. 18-3956 (E.D. Pa. Dec. 11, 2018 Kearney, J.), Judge Mark A. Kearney of the Federal Eastern District Court of Pennsylvania held that a homeowner’s policy was required to defend a case on behalf of a Defendant-homeowner whose son allegedly bullied another high school student with text messages, allegedly causing that other student to commit suicide as a result.  

After the parents of the deceased student sued the harasser and his parents for negligence, the defendants turned to their carrier for liability coverage under their homeowner's policy.  The policy provided coverage for any "occurrence" which was defined in the policy as an "accident."

In this declaratory judgment action on coverage, the carrier argued that, because the harasser sent a text message to the victim, there was no "accident" as to his actions.

In response, the insured defendants argued that Pennsylvania law requires, in the analysis of whether an "accident" occurred in the context of the policy, that the question of foreseeability be viewed from the insured's perspective.  In this regard, the insured defendants asserted that, although it cannot be disputed that the insured sent the text message, the victim's suicide thereafter constituted an extraordinary intervening event far beyond anything contemplated under the circumstances and was therefore unforeseeable to the insured and, in the end, fell within the definition of an "accident."

The court noted that "[t]he parties have not cited, and we cannot find, Pennsylvania law addressing whether the [insured'] alleged negligence possibly leading to this ever more prevalent tragedy among our students is an occurrence mandating coverage."

Ultimately, after analyzing the facts before it, the court held that the homeowner's insurance carrier was indeed required to provide a defense and possible indemnity on negligence claims presented in this unfortunate case.

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

Student Suicide Case Allowed to Proceed Under Rehabilitation Act and ADA Claims

In the case of Beam v. Western Wayne School District, No. 3:15-CV-01126 (M.D. Pa. 2018 Caputo, J.), the Federal Middle District Court of Pennsylvania denied a Defendant school district’s motion for summary judgment relative to claims filed by parents following their son's suicide.

In this case, the Plaintiffs alleged that the school district failed to properly implement an educational plan under Section 504 of the Rehabilitation Act and the ADA on behalf of a disabled student who had ADHD.  According to the allegations, the student committed suicide on the last day of school allegedly as a result of academic failures stemming from the failures of the school to implement the educational plan.  The parents asserted that the school was responsible for their son's suicide because officials failed to notify them that their son was struggling academically, which was allegedly required under the education plan.

Judge A. Richard Caputo
M.D. Pa.
In a previous ruling in this case, Judge Caputo had dismissed a failure to prevent suicide claim presented by the Plaintiffs.

The defense asserted that the Plaintiff's were attempting to recast a failure to prevent suicide claim as a violation of the Section 504 and the ADA.  The Court rejected this defense and noted that issues of fact compelled the Court to deny the school district's request for summary judgment on the claims presented.

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


Tuesday, January 8, 2019

Failure to Produce Object that Allegedly Caused Injury Results in Summary Judgment





In the case of Swartwood v. Denny’s Restaurant, No. 9983 of 2016 (C.P. Luz. Co. Nov. 21, 2018 Polachek-Gartley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that he suffered severe dental injuries and damages from a foreign substance or particle that was in his breakfast that he had purchased from the Defendant.  

According to the record before the court, the Plaintiff indicated that he was eating breakfast with his son when he felt something in his mouth that felt like hard plastic.   The Plaintiff asked his son to look into his mouth what it was but his son was unable to see anything.

The Plaintiff then went to the bathroom and saw that a tooth was hanging.   The Plaintiff left Denny’s and went immediately to a dentist for treatment.

The Plaintiff did not know what happened to the alleged piece of plastic and opined that he may have swallowed it or spit it out.   The Plaintiff also asserted that he did not have any problems swallowing it or possibly later passing it.  

The court additionally noted that the Plaintiff could not describe what color the object was and had only testified that it felt like a little, hard chip.   The Plaintiff additionally admitted that he was not able to isolate the piece of plastic in his mouth with his tongue.  

The court also noted that the Plaintiff did not tell anyone at Denny’s about the broken tooth before he left the restaurant.   It was also confirmed that his son did not tell anyone.   After the Plaintiff went to the dentist and his tooth was repaired, he then returned to Denny’s in order to explain what happened.  

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to meet his burden of proof of negligence due to the Plaintiff’s failure to produce the piece of plastic or the foreign object alleged to have been in the food.  

In granting the Motion for Summary Judgment, the court noted that the Plaintiff not only failed to produce the foreign object for inspection, but the Plaintiff never even saw the item himself and was unable to describe it with any particularity.   

Judge Tina Polachek-Gartley
Luzerne County
 
Judge Polachek-Gartley noted that the Superior Court has held that permitting claims of potentially defective products to proceed where the consumer throws the product away after an accident would encourage false claims and would make the defense of the same more difficult and would potentially put a Plaintiff in a position of deciding whether to keep the item based upon whether that retention of the product would help or hurt the Plaintiff’s case.  

The trial court in this Swartwood case found that the Defendant was prejudiced by the fact that the object cannot be examined and given that the defense had no opportunity to address whether or not this piece of plastic or foreign body originated from its own kitchen or was a product from the food supplier. 

The court additionally noted that the Defendant did to present any medical evidence or records that connected the object to the broken tooth.

There was no evidence that a foreign substance or object likely caused the tooth injury.   Nor was any circumstantial evidence presented in this regard. Given that the facts placed on record by the Plaintiff were found to be insufficient to make out a prima facie cause of action for negligence against the Defendant, the court found that there was no issue to be submitted to the jury and, therefore, the Defendant’s Motion for Summary Judgment was granted.  

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

I send thanks to Attorney Ann O. Farias of the Plains, Pennsylvania branch of the Law Offices of Lester G. Weinraub/Nationwide In-house for bringing this case to my attention. 

Court Denies Summary Judgment Motion Based on Mudano Rule (Pertaining to Conflicting Expert Opinions Offered by Plaintiff)


In the case of Kafaoglu v. Thomas, No. 14-CV-1842 (C.P. Lacka. Co. Dec. 21, 2018 Nealon, J.), the court applied the Mudano Rule in a case where the Defendant filed a Motion for Partial Summary Judgment asserting that conflicting opinions by medical experts for the Plaintiff prevented the Plaintiff from proceeding to the jury on certain portions of his claims.  

This matter arose out of a motor vehicle accident in which the Plaintiff alleged, in part, a cervical spine injury requiring a surgical repair.  

Evidence gathered during the course of discovery confirmed that the Plaintiff had a prior cervical spine fusion surgery.   The evidence also revealed that the Plaintiff did not treat over the first eleven (11) days following the subject motor vehicle accident.  As such, the defense contended that the alleged causation of the Plaintiff's post-accident cervical spine complaints were in question.

During the course of his treatment after the subject accident, the Plaintiff eventually underwent a cervical spine surgery for an alleged disc injury allegedly arising out of the motor vehicle accident.

The Plaintiff initially produced expert reports from the Plaintiff’s treating neurosurgeon who performed the surgery.  That neurosurgeoin opined that he was “unable to say with 100% certainty that this car accident led to [the Plaintiff’s] C3-4 disc herniation.”   The neurosurgeon advised that he did not have any pre-accident imaging studies to compare with the post-accident studies.   

In his reports, the neurosurgeon also stated that his findings that he personally observed during the course of his surgery on the Plaintiff’s cervical spine suggested that degenerative disc disease was at issue, rather than any acute process.  

During the course of discovery, the Plaintiff also secured the Plaintiff’s IME report from a physiatrist in which that physiatrist offered his conclusions that the subject motor vehicle accident aggravated the Plaintiff’s pre-existing cervical stenosis and allegedly necessitated the post-accident cervical spine surgery.  

The defense filed a Motion for Partial Summary Judgement with respect to the Plaintiff’s claims related to his cervical disc injury and cited the Mudano rule for the proposition that the opinions of the Plaintiff’s medical experts were irreconcilably inconsistent and, therefore, “legally incompetent."

The defense requested a summary judgment on the particular issue of the Plaintiff's alleged disc injury and surgery not being causally related to the accident by competent expert medical evidence.  The argument of the defense was that, if the Plaintiff's own experts could not agree on a conclusion of whether the disc injury and surgery were caused by the accident, how could a jury of lay people come to such a conclusion.

After a review of the medical evidence presented, the court concluded that, given that the Plaintiff only currently intended to present the expert opinion of his treating physiatrist, the Mudano rule was not implicated given that there would not be a presentation of two (2) contradictory expert reports on the part of the Plaintiff.   

The court additionally held that, even if the opinions of both experts was put into evidence (which would likely be done by the defense), reviewing the experts’ opinions did not reveal them to constitute fatal and absolute contradictions with one another on a fundamental issue.  Rather, to the extent that the opinions were found to conflict with one another, the court felt that this issue should be left for the jury to decide.  


As such, the court denied the Motion for Partial Summary Judgment filed by the defense.

Anyone wishing to review this decision may click this LINK.

Monday, January 7, 2019

LET YOUR VOICE BE HEARD: Comment Period Open on Proposed Rule Changes on Venue (Most Pertinent to Medical Malpractice Cases)




Tort Talkers may recall Tort Reform movements from the around the turn of the century when changes were made in response to the number of medical malpractice claims that were being pursued at that time.

The venue rules adopted in 2002 were part of medical malpractice reforms enacted. These venue rules served to lower the number of medical malpractice cases filed in the liberal jurisdiction of Philadelphia by preventing filings there unless the cause of action arose in Philadelphia. 

The impact of these venue rules are summarized in this  REPORT from the PA Supreme Court which tracks the number of medical malpractice cases filed in each county. 

For example, between 2000 and 2002, there was an average of 1204 medical malpractice cases filed in Philadelphia per year. After the change to the venue rules, that figure plunged by half in 2003 and continued to decline until just recently.

Now there is a movement underway by the statewide Civil Rules Committee to revise the Pennsylvania Rules of Civil Procedure in this regard.

The proposed rule changes can be found HERE.

Here is the reasoning from the Explanatory Comment to the proposed rule:

“The current rule provides special treatment of a particular class of defendants, which no longer appears warranted. Data compiled by the Supreme Court on case filings on medical professional liability actions indicates that there has been a significant reduction in those filings for the past 15 years. Additionally, it has been reported to the Committee that this reduction has resulted in a decrease of the amount of claim payments resulting in far fewer compensated victims of medical negligence.”
 
This raises a debate on whether the venue rules as they stand are working for their intended effect or whether they are still needed given the decrease in medical malpractice claims. 
 
If you wish to weigh in on this debate the Civil Procedure Rules Committee is taking comments, suggestions, or objections on the proposed rule until February 22, 2019.  The preferred contact is by email. The Committee can be contacted at:

Karla M. Shultz, Counsel Civil Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
P.O. Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
civilrules@pacourts.us


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

Friday, January 4, 2019

TORT TALK TIP



DON'T BE A JERK

That's it.  That's the Tip for 2019 and Beyond:  Don't be a Jerk.
 

Thursday, January 3, 2019

Summary Judgment Granted in Store Slip and Fall Case


Summary Judgment was granted to a Defendant in the slip and fall case of Thomas v. Family Dollar Stores of Pennsylvania, LLC, No. 2:17-CV-04989 (E.D. Pa. Nov. 19, 2018 Kelly, J.).

In this matter, the Plaintiff alleged that she slipped and fell on a thick, yellow substance on the floor of the Defendant’s store while she was looking at the store shelves.   The court noted that the substance on the floor was next to a broken glass bottle.  

In its Motion for Summary Judgment, the Defendant argued that the substance was an open and obvious condition and that it owed no duty of care to the Plaintiff as it had no actual or constructive notice of the condition.  

The court in this matter noted that the record confirmed that the Plaintiff had acknowledged that there were no visual obstructions surrounding the liquid that concealed it from her view.   However, the Plaintiff was arguing that she was focused on the products on display on the store’s shelves at the time she fell. The Plaintiff contended that this was reasonable conduct for a shopper.  

The court rejected the Plaintiff’s argument in this regard, finding that it was “hornbook law in Pennsylvania that a person must look where he [or she] is going.”  

Judge Kelly also reviewed various Pennsylvania and Federal Court decisions applying Pennsylvania law that had rejected similar arguments by other Plaintiffs.    The court noted that the Pennsylvania Supreme Court had observed in the case of Rogers v. Max Azen, Inc., 16 A.2d 529 (Pa. 1940), that, although a lesser degree of attention was required of customers in stores as compared to those walking along sidewalks, the general rule that a Plaintiff must still watch where he or she was walking still applied and that, where one is injured as a result of a failure on his or her part to observe and avoid an obvious condition, the claim fails.  

Turning to the record before it, the court in Thomas ruled that the evidence revealed that the substance on the floor next to the broken glass in this case posed an obvious condition such that its danger should have been readily apparent to a person exercising normal perception and judgment.   Based on these findings, the court ruled that the Defendant did not breach any duty of care to the Plaintiff.  

The court in Thomas went on to also find that the Plaintiff’s claim failed due to the failure of the Plaintiff to show actual or constructive notice on the part of the Defendant of the condition.   The Plaintiff’s general assertion that the Defendant was negligent based upon a lack of policies and procedures for maintenance and safety in the Defendant’s store was rejected as insufficient to show that the Defendant had constructive notice of the spill.  

The court additionally noted that the Plaintiff failed to provide any evidence as to how long the spill was on the floor.   The court noted that an alleged failure to perform a safety sweep said nothing about how long the spill was actually present.   As such, the Defendant’s Motion for Summary Judgment was granted on this additional ground as well. 

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

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (Dec. 4, 2018)

Pennsylvania Superior Court Finds that Defense Verdict in Trip and Fall Case Was Not Against the Weight of the Evidence

In its recent decision in the case of Koziar v. Rayner, 2018 Pa. Super. 331 (Pa. Super. Dec. 7, 2018 Strassburger, Stabile, and Stevens, J.) (Op. by Strassburger, J.), the court reversed a trial court’s decision granting the Plaintiff a new trial under a rationale that the jury’s verdict was against the weight of the evidence in a trip and fall case.  

The Superior court ruled that the jury’s verdict that the Defendant’s negligence was not the cause of the Plaintiff’s alleged injuries should not have been reversed by the trial court as against the weight of the evidence. The Superior Court noted that the Plaintiff gave several different versions of the accident such that the jury could have disbelieved the Plaintiff as to how the accident occurred.  

The Superior Court also noted that the jury could have believed that the Plaintiff was contributorily negligent to the point that recovery was not permitted.  

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

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





Pennsylvania Supreme Court Rules That Lack of Padding On Public School Gym Walls Falls Within Real Estate Exception to PSTCA


In the case of Brewington v. City of Philadelphia, 23 EAP 2017 (Pa. Dec. 28, 2018)(Maj. Op. by Todd, J.)(Concurring Op. by Wecht, J.), the court considered the current status of the real property exception to the governmental immunity provided by the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. Section 8541 et seq.

In this case, the Court found that the lack of padding on a gym wall in a public school may constitute negligence in the care, custody, and control of real property, and thereby fall within the Act's real estate exception to immunity.  In this matter, a student was injured when he ran into the gym wall during a relay race.

As such, the defendant's motion for summary judgment was denied.

The Majority Opinion by Justice Todd can be viewed at this LINK.  The Concurring Opinion by Justice Wecht can be viewed HERE.

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

Wednesday, January 2, 2019

SAVE THE DATE: Encore Presentations of Forrest Gump Themed Civil Litigation Update CLE in February


Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

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.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at dburdge@monroebar.org to register.


The Lackawanna Bar Association will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email kmcdonough@lackawannabar.org.

The Lackawanna County CLE Lunch & Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at dancummins@comcast.net or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.