Thursday, May 23, 2019

Pennsylvania Superior Court Reviews Issues of Personal Jurisdiction and Forum Non Conveniens Doctrine



In the case of Vaughan v. Olympus America, Inc., No.  2019 Pa. Super. 112 (Pa. Super. April 10, 2019 Panella, J., Olson, J., McLaughlin, J.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court found that a trial court abused its discretion in dismissing a Plaintiff’s negligence and fraud claims against a medical device maker for lack of personal jurisdiction and in dismissing other Defendants on forum non conveniens grounds.  

According to the Opinion, the decedent died after medical procedures in North Carolina using the Defendant’s medical device, allegedly because the device was contaminated.     

The device maker was a corporation organized under the laws of Japan with its principle place of business in Tokyo.   

Two New York Corporations with their principle places of business in Pennsylvania were the agents of the device maker for FDA purposes and were allegedly involved in marketing and distributing the scope. 

The administrators of the estate sued the device maker and its agents in Philadelphia County.   

The Philadelphia County trial court dismissed the case for lack of personal jurisdiction and granted the Motion of Certain other Defendants for dismissal on forum non conveniens grounds.   

This decision was reversed on appeal.  

The Superior Court noted that the device maker engaged in relevant acts with an in-state company in Pennsylvania and was liable for in-state FDA-related conduct in Pennsylvania.   The appellate court found that the in-state corporation’s activities in conjunction with the device maker at the device maker’s agent were sufficiently linked to the Plaintiff’s claims in order to support specific jurisdiction in Pennsylvania.  

The appellate court also agreed with the Plaintiff’s contention that Pennsylvania was the most appropriate forum for the case and not North Carolina as had been determined by the trial.   The appellate court noted that evidence critical to the Plaintiff’s claims could be found in Pennsylvania since the in-state corporations were the device maker’s agents for FDA purposes.   The Superior Court also found that the public interest’s factors favored Pennsylvania since the agents had robust sales and marketing departments located in Pennsylvania.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (April 30, 2019). 

Tuesday, May 21, 2019

Need CLE Credits?


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" at the Monroe County Bar Association on Tuesday May 28, 2019.  Lunch will be served at 11 a.m. and the CLE will run from Noon - 1 p.m.

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.

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.





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.


Monday, May 20, 2019

Judge Shurtleff of Sullivan County Addresses Service of Process Issues


In the case of Pennsylvania Electric Co. v. Antoine’s Timbering, Inc., No. 2016-CV-50 (C.P. Sullivan Co. Oct. 20, 2018 Shurtleff, P.J.), the court granted a Defendant’s Motion for Judgment on the Pleadings based upon a Plaintiff’s failure to complete service of original process within the applicable statute of limitations in this negligence cause of action.

According to the Opinion, this property damage matter arose out of the Defendant timbering company’s alleged negligent cutting of a tree on April 25, 2015 causing it to hit the Plaintiff’s facilities including telephone poles and wires.  

The Plaintiff instituted this action by filing a Complaint on March 7, 2016.   A little over a month later, on April 19, 2016, the Sullivan County Sheriff’s office filed an Affidavit indicating that service of process on the Defendant had not been perfected as the Sheriff was provided with an invalid address.  

Thereafter, the statute of limitations expired a little over a year later on April 25, 2017.  The court noted that the next docket entry following the previous Sheriff’s Return of Service was not lodged until October 27, 2017 when the Plaintiff filed a Praecipe to Reinstate the Complaint, which was approximately eighteen (18) months later.  

Judge Russell Shurtleff
Sullivan/Wyoming County
The court noted that, while the Complaint was filed within the statute of limitations and promptly provided to the Sullivan County Sheriff’s Department, service was not effectuated. The Plaintiff then waited approximately eighteen (18) months to reinstate the Complaint.   The court noted that simply waiting eighteen (18) months to reinstate a Complaint on the basis that the Plaintiff’s attorney was unable to locate the Defendant in the interim was not conduct of good faith.  

As such, the court granted judgment on the pleadings on favor of the defense after finding that the Plaintiff’s course of conduct in taking no action to locate the Defendant for such a prolonged period of time served to unnecessary delay the legal process in violation of the case of Lamp v. Heyman and its progeny.  

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


I send thanks to Attorney Stephanie Hersperger of the Harrisburg, PA office of the law firm of Pion, Nerone, Girman, Windslow & Smith, P.C. for bringing this case to my attention.   

Friday, May 17, 2019

Building Code Officials Granted Immunity Under Tort Claims Act


Whether building code officials contracted to enforce the Construction Code Act by a local governmental entity are entitled to immunity under the Tort Claims Act was addressed in the case of Hartzell v. SM Ross, Inc., et.al., No. GD 17-CV-011430 (C.P. Allegh. Co. March 25, 2019 Connelly, J.).  In this case, the court ruled in favor of the Defendants, finding that these particular Defendants were indeed afforded immunity in negligence causes of action.  

According to the Opinion, this case arose following a landslide which damaged the Plaintiff’s newly purchased home.   The Plaintiffs failed a Complaint against Building Inspection Underwriters, Inc. and other Defendants, including a local governmental agency. 

The court generally noted that the local governmental agency was entitled to the immunity provided under 42 Pa. C.S.A. §8541 of the Tort Claims Act. 

The court additionally noted that the Pennsylvania Code requires that local governmental entities appoint a building code official to enforce the Construction Code Act.  

In part, the Plaintiffs sued the Borough Code Officials for failing to enforce the code provisions relative to the premises at issue.   In response, those particular Defendants asserted that they were entitled to protections afforded by the Tort Claims Act.   In the end, the court ruled that the Tort Claims Act does indeed afford immunity to Building Code Officials contracted to enforce the Construction Code Act by a local governmental agency.

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

I send thanks to Attorney William J. Bryers of the Philadelphia law firm of Pillinger, Miller, Tarallo, for bringing this case to my attention.  

Thursday, May 16, 2019

Pennsylvania Superior Court Issues Cautions For Preserving Record and Issues for Appeal


In the case of Hassel v. Franzi, No. 2019 Pa. Super. 109 (Pa. Super. April 8, 2019 Stevens, P.J.E., Olson, J., Dubow, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court noted that a failure to include record citations in party’s statement of issues in appellate filings, so that the appellate court could establish that the objections asserted were made and what was objected to, amounts to a waiver of the issues on appeal.  

The Superior Court noted that “[i]t is axiomatic that when a court has to guess what issues a Defendant is appealing, that is not enough for meaningful review.”  See Op. at 12.  

In this regard, the court noted that this matter involved an eight (8) day trial and that the appellate only initially provided the court with notes of testimony from portions of the trial.   The Superior Court noted that the Superior Court’s Prothonotary completed an extensive effort to ascertain the remaining notes of testimony.   In its Opinion, the court reminded the appellant of its duty to ensure that the Superior Court receives all of the documents necessary to review the issues raised on appeal.   See fn. 1 at p. 13.    

The court additionally noted in this Opinion that any objections concerning an expert exceeding the scope of an expert report and/or the scope of direct examination must be specifically stated or will be considered to be waived on appeal.  

This case arose out of a medical malpractice action.  

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

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

Wednesday, May 15, 2019

Judge Minora of Lackawanna County Addresses Parameters of Neuropsychological Examinations Requested by Defense


Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently weighed in on the issue of the proper parameters for a neuropsychological IME in the case of Dellavalle v. USAA, No. 2017-CV-4668 (C.P. Lacka. Co. May 14, 2019 Minora, J.).

This case involved UIM claim(s) arising out of a motor vehicle accident. 

The issue came before the court by way of a motion to compel filed by the defense.  The defense desired to complete a neuropsychological examination of the Plaintiff with a doctor in Allentown.  The Plaintiff objected to the distance required to travel to the exam and also objected to the requested length of the deposition.

There were also disputes between the parties as to whether the examination could be videotaped, to what extent the Plaintiff's attorney or a representative of the Plaintiff could be present during the exam or testing, and whether the Plaintiff was entitled to secure any raw data generated by the defense expert during the exam.

Judge Carmen D. Minora
Lackawanna County

In addressing the issues before him, Judge Minora noted that Pa.R.C.P. 4010 allows for examination if good cause is shown and that Pa.R.C.P. 4011 grants the court discretion to avoid any discovery that causes unreasonable annoyance, embarrassment, oppression, burden, or expense to a person or a party.

In terms of the location of the expert, the court noted that it hesitated to infringe upon the right of any party to try the case they choose, including with respect to the selection of an expert.  As such, the court rejected the Plaintiff's objection to the location of the expert but ruled that the defense would have to bear any expenses related to the travel required for the Plaintiff to attend the exam.

As for the duration of the neuropsychological IME, the court limited the exam and testing to six hours over two days.  In this regard, the court noted that it was balancing the defense's right to the examination against the Plaintiff's right to be protected from unreasonably burdensome discovery.

With regards to presence of Plaintiff's counsel or a representative of the Plaintiff at the examination, the court noted that there was no binding appellate court precedent on the issue.  Judge Minora reviewed prior trial court opinions on the issue.  In the end, the court ruled that the Plaintiff could have a representative present only for the interview portion of the neuropsychological examination.  The court further ruled that a representative of the Plaintiff would not be allowed in the room during the standardized testing portion of the exam.

Judge Minora additionally ruled that no part of the examination by the doctor and/or the standardized testing could be videotaped.  However, he did allow for videotaping of the interview portion of the exam, i.e., the part at which the Plaintiff's representative was allowed to be present.

The court also ruled that the Plaintiff was to be provided with any raw data generated during the examination.  The court's Order also required that all examination and testing materials were to be returned to the Plaintiff upon the conclusion of the case.

Anyone wishing to review this decision, may click this LINK

I send thanks to Attorney Bruce Zero, Esq. of the Scranton, PA office of Powell Law for bringing this decision to my attention.

For other Tort Talk entries on this issue, check out the Label of "Neuropsychological Review" way down on the right hand column of the Tort Talk blog at www.TortTalk.com.




Tuesday, May 14, 2019

Superior Court Rules that Internist Can Testify as Plaintiff's Expert on Musculoskeletal Issues in a Slip and Fall Case


In the case of Wright v. Residence Inn by Marriott, Inc., 2019 Pa.Super. 110 (Pa. Super. April 9, 2019 Kunselman, J., Bowes, J., Shogan, J.) (Op. by Kunselman, J.) (Shogan, J., concurring in result), the Pennsylvania Superior Court ordered a new trial on damages only in a case where the appellate court found that the Plaintiff’s medical expert was improperly excluded by the trial court below.   

According to the Opinion, the Plaintiff in a slip and fell ice and sustained injuries in the form of shoulder and hip.  At trial, the Plaintiff presented an internist as a medical expert who had been practicing for over 37 years in the field of internal medicine, which the expert described as covering all aspects of medicine including the musculoskeletal system.  

The Pennsylvania Superior Court reaffirmed the rule that experts in one area of medicine may be qualified to address other areas where the specialties overlap, or where the expert has experience in the other field of medicine.  

The Superior Court emphasized that the matter before it was not a medical malpractice case and that the witness was not asked to evaluate the care of a different specialty.  Rather, the expert was only present at trial at the request of the Plaintiff to offer an opinion on causation, treatment, and prognosis.  

The court noted that the expert in this case routinely treated patients with injuries similar to that alleged by the Plaintiff. The court also noted that the Plaintiff’s expert’s specialty was not wholly unrelated to the type of treatment necessary for the Plaintiff’s alleged injuries.   While a different type of medical specialist may have been more qualified, this fact alone did not support the trial court’s exclusion of the Plaintiff’s expert at trial.  

As the Pennsylvania Superior Court found that the exclusion of the Plaintiff’s trial expert was prejudicial given that it left the Plaintiff without any expert witness on the causation issue and extent of injuries issue, a new trial was ordered on the issue of damages only.  

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

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

Pennsylvania Superior Court Addresses Fair Scope of Expert Report Rule



In the case of Hassel v. Franzi, No. 311 EDA 2018 (Pa. Super. April 8, 2019 Olson, J., Dubow, J., Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court addressed the fair scope of expert testimony in a medical malpractice action.  

This matter involved a Plaintiff who was immobilized after she fractured her leg and who developed a blood clot that allegedly caused a fatal cardiac arrest.  

The jury in the trial of the case ultimately determined that one of the doctor’s conduct failed to meet the standard of care but that his negligence was not a factual cause of the Plaintiff’s death.  The jury also found that another doctor’s conduct met the standard of care.  

On appeal, the verdict and judgment was affirmed.    The appellate court rejected the Plaintiff’s contention that the trial court had erred in permitting the Defendants’ experts to testify to matters outside the scope of their reports.  

In this regard, the appellate court noted that the Plaintiff initially failed to specifically object to those portions of the testimony that were alleged outside the scope of the expert reports.  

The Superior Court also ruled that, in any event, the Plaintiff was fairly on notice as to the anticipated expert testimony and/or was able to conduct a productive cross-examination of the experts regardless.  

The Superior Court additionally found that the Plaintiff failed to assert specific objections to the causation testimony by those experts.  

The appellate court additionally rejected the Plaintiff’s contention that the Defendants had been allowed to introduce excessively duplicative expert testimony despite precluding the Plaintiff from presenting cumulative testimony at trial.   The Superior Court affirmed the trial court’s finding that the challenged testimony was corroborative rather than cumulative, as each expert was testifying from the viewpoint of his own specialty.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (April 30, 2019).


Monday, May 13, 2019

Summary Judgment Entered In Negligence Action Where Plaintiff Precluded From Offering Evidence Due to a Discovery Sanctions Order


In the case of Johnson v. Milewski Towing, No. 15 - CV - 1372, 2019 WL 1302459 (C.P. Lacka. Co. 2019 Nealon, J.), the court addressed a Motion for Summary Judgment filed by a Defendant after a discovery sanctions Order had been previously entered by another judge on the same bench barring the Plaintiff “from offering evidence at the trial of this matter.”   

According to the Opinion, this matter arose out of a single vehicle accident after which there was an altercation between the Plaintiff and the driver of the Defendant's tow truck.

The court reaffirmed the general rule that, in negligence matters, unless the causal connection between the Defendant’s alleged negligence and the Plaintiff’s alleged harm is so obvious as to be within the common knowledge of the average juror, expert medical testimony is required to establish causation.

Due to the sanctions Order and the Plaintiff’s continuous failure to respond to his attorney’s request for information, the Plaintiff was found to be unable to produce sufficient evidence to establish all of the elements of the negligence cause of action.  

As a result, the court ruled that the Defendant was entitled to judgment in its favor. Accordingly, the Motion for Summary Judgment. 

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

Friday, May 10, 2019

SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT ON JUNE 10, 2019


Please Consider Registering for Encore Presentation of Forrest Gump CLE Set for May 28th at Monroe Co. Bar Association


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" at the Monroe County Bar Association on Tuesday May 28, 2019.  Lunch will be served at 11 a.m. and the CLE will run from Noon - 1 p.m.

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.

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.





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.


Thursday, May 9, 2019

Philadelphia County Court Grants Forum Non Conveniens Motion Regarding Case with New York Facts


In the case of Zevola v. B. Braun Medical, Inc., May Term 2017, No. 4162, 2011 EDA 2018 (C.P. Phila. Co. Feb. 14, 2019 New, J.), the court granted a Defendant’s Motion to Dismiss a Plaintiff’s products liability suit filed in Philadelphia County under the doctrine of forum non conveniens.  

According to the Opinion, this matter involved a plaintiff who was a resident of New York, and who underwent surgery in New York for the implantation of the product medical device at issue in the case.  The product involved was manufactured by a company located in France.  

The court acknowledged that, under a forum non conveniens analysis, a plaintiff’s choice for forum should not be disturbed except for weighty reasons.  The court also noted that there must be an alternative forum available to the plaintiff such that the action could be transferred.   As part of the analysis, the trial court is required to examine public and private interests to determine whether reasons exist to overcome the plaintiff’s chosen forum.  

In this matter, the court noted that an application of these factors and interests weighed in favor of dismissing the action. 

In so ruling, the court stated that deference to the plaintiff’s chosen forum was less stringently applied in this matter given that the Plaintiff was not a Pennsylvania resident.   It was additionally noted that the surgery involving the implantation of the medical device did not occur in Pennsylvania. Rather, the plaintiff’s alleged injury from the device was discovered in New York by the plaintiff’s New York doctors.   Accordingly, the key witnesses and evidence were located in New York.  

In the end, the court held in this Rule 1925 Opinion that the important aspects of the case were clearly outside of Pennsylvania and, given that there was an alternative forum available to the Plaintiff, the Defendant’s Motion to Dismiss based upon the doctrine of forum non conveniens had been granted and should be upheld on appeal before the Superior Court. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 26, 2019). 

Wednesday, May 8, 2019

Punitive Damages Allowed to Proceed in Case Involving Alleged Driving While Intoxicated


In the case of Yzkanin v. Hammerjax, LLC, No. 18-CV-2260 (C.P. Lacka. Co. March 1, 2019 Nealon, J.), the court addressed Preliminary Objections seeking to strike allegations of reckless, willful, and wanton conduct along with a claim for punitive damages in a Dram Shop liability action.  

According to the Opinion, this matter arose out of an accident that occurred after the Plaintiff was a patron at the Defendant’s tavern and the tavern’s employees allegedly continued to serve the Plaintiff alcohol even though he was allegedly visibly intoxicated due to the fact that the Plaintiff was allegedly drinking excessively for an extended period of time.  

In other words, the Plaintiff Yzkanin alleged that he was drinking excessively on the night on question and then got into an accident after he left the tavern and then sued the tavern for continuing to serve him alcohol when he was visibly intoxicated. 

According to the Opinion, this case was also consolidated with the claim of the other Plaintiff who was in the other vehicle that was involved in the accident with Plaintiff Yzkanin.   That Plaintiff also sued the tavern Defendants under a Dram Shop action and may claims for recklessness and punitive damages.  

In his Opinion, Judge Nealon cited to the law that holds that punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

Wanton or reckless conduct was further defined to refer to those instances when an actor has intentionally completed an act of unreasonable character in disregard of a risk known to him or a risk so obvious that he must have been aware of it and so great as to make it highly probable that harm would result.   The court additionally referred to the law that a mere showing of negligence, or even gross negligence, will not support a claim for punitive damages.  

After applying the law to the facts alleged in the Plaintiff’s Complaint, the court overruled the Defendant’s Preliminary Objections filed against the Plaintiff’s allegations of wanton, willful, and reckless conduct and also overruled the Preliminary Objections to the claims for punitive damages.   In so ruling, the court noted that the Defendants remained capable of testing the viability of the punitive damages claims later by way of a Motion for Summary Judgment.  

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

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP.  

Tuesday, May 7, 2019

Claims for Negligent Hiring, Retention and Supervision in Trucking Accident Cases Fail Where No Punitive Damages Alleged



In what may be a case of first impression in Pennsylvania state court, Judge David J. Williamson ruled that a claim against a truck driver's employer for negligent hiring, retention, supervision or entrustment cannot stand in the absence of a related claim for punitive damages.

In the case of Sullivan v. Crete Carrier Corp., No. 8716 - CV - 2015 (C.P. Monroe Co. Jan. 18, 2019 Williamson, J.), the court granted the Defendant’s Motion for Partial Summary Judgment on the Plaintiff’s claims for negligent entrustment, hiring, and retention against the trucker’s employer arising out of a trucking accident case.  

In the Complaint, the Plaintiff sued a Defendant truck driver and the trucking company for personal injuries.  The Plaintiff asserted claims for negligent entrustment and negligent hiring
and retention.   The Plaintiff did not make a claim for punitive damages in the Complaint.  

The defense asserted in its motion for summary judgment that, since the Plaintiff had not asserted a punitive damages claim, the Plaintiff's claim for negligent entrustment, hiring and retention must be dismissed as a matter of law.

Judge Williamson noted that the courts have generally dismissed claims for negligent supervision and negligent hiring when a supervisor concedes an agency relationship with a Co-Defendant, such as was the case in this matter.   However, a recognized exception exists when a Plaintiff has made a claim for punitive damages against a supervisor.  

Judge David J. Williamson
Monroe County
Citing to unpublished Federal District Court cases in Pennsylvania, the court stated that, where no punitive damages claim has been asserted against a supervisor Defendant, under Pennsylvania law, a trial court must dismiss negligent supervision and entrustment claims.  

The stated rationale is that the employer's liability is a derivative claim fixed by a determination of the employee's negligence.  Therefore, evidence of negligent hiring, retention, or supervision become irrelevant and prejudicial if the employer has already admitted to an agency relationship and where no claim for punitive damages exists.

In the end, the court ruled that, since the trucking company admitted that the trucker was acting within the scope of his employment at the time of the accident, and given that the Plaintiff had failed to plead a punitive damages claim against the trucking company, the Defendant’s Motion for Partial Summary Judgment against the Plaintiff’s claims against the company for negligent entrustment, hiring, and retention, must be granted.  

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

Monday, May 6, 2019

New Rule Pertaining to John Doe Designations in Pleadings Recently Went Into Effect - Pa.R.C.P. 2005



On April 1, 2019, Pa.R.C.P. 2005, which governs the use of “John Doe” or “Jane Doe” designations in pleadings, took effect.

According to the Comment to the Rule, the Rules of Civil Procedure were silent as to this issue prior to the implementation of Pa.R.C.P. 2005.

The rule allows a plaintiff or a defendant joining party to designate an unknown defendant by use of a Doe designation provided certain conditions are met. Under the Rule, the Doe defendant’s actual name must be unknown to the plaintiff or the defendant joining party after the completion of a reasonable search for the person using due diligence.

According to the Comment, an effort to list as parties, “Defendants John Doe 1-10 is frowned upon.

The Rule also requires a specific allegation in the pleading confirming that the Doe designation is a designation of a fictitious person or entity.  Also included in the pleading must be a factual description of the unknown defendant which must contain sufficient particularity for identification. 
Moreover, the plaintiff or defendant joining party must aver that a reasonable search to determine the actual name of the Doe defendant has been conducted.

Any named defendant in the action is granted authority under Rule 2005(e) to file Preliminary objections on the grounds of nonconformity with this Rule 2005 by the Plaintiff or on the grounds of prejudice.

The Rule additionally provides that once the actual name of the unknown defendant is determined, the plaintiff or joining party must file a motion to amend the Complaint pursuant to this Rule 2005 and in accordance with Pa.R.C.P. 1033, by replacing the “Doe” designation with the defendant’s actual name.  Such a motion must be supported by an affidavit explaining the nature and extent of the investigation utilized to determine the Doe defendant’s actual identity and to provide the date that the identity was determined.

Under the Rule, it is also provided that subpoenas in aid of discovery relating to an unknown Defendant may not be issued or served without leave of court.

Rule 2005 also confirms that a judgment may not be entered by the court against an unknown Defendant.

Source:  Article “New Rule of Civil Procedure Governing Unknown Defendants Took Effect April 1, 2019” by Matthew E. Salmasska, Esq. in the PBA’s Civil Litigation Sections Civil Litigation Update Newsletter at p. 13 (Spring, 2019).  See also Pa.R.C.P. 2005.

Friday, May 3, 2019

Celebrating a Decade of Tort Talk


On tomorrow, the Tort Talk blog will turn 10 years old.  Tort Talk was born one very late night a decade ago after I had read some articles on a new form of writing that was coming into vogue called blogging and I took my then regular practice of compiling a running list of notable recent cases and trends on my computer and turned that practice into a blog for the benefit of all.

Here's a LINK to my very first post.

The blog continues on, going strong nearly 2,500 blog posts later.  There are now currently almost 2,000 Email Subscribers to the blog, better known, at least to me, as Tort Talkers.  Tort Talk has won some awards and recognition over the years, and has even been cited at times in trial court opinions around the Commonwealth of Pennsylvania, particularly with respect to the Post-Koken Scorecard.

Tort Talkers - I thank you for reading.  I thank you for your tips on new cases and trends. And I hope to continue to keep you interested and informed going forward.  Thanks very much.

DAN CUMMINS







Thursday, May 2, 2019

Superior Court Addresses Adverse Inference Penalty for Spoliation of Video in a Slip and Fall Case


In the case of Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. March 27, 2019 Bowes, J., Stabile, J., and McLaughlin, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court ruling after finding that the trial court erred in refusing to give an adverse inference instruction based upon the Defendant’s alleged spoliation of videotape evidence in a grocery store slip and fall case.  

According to the Opinion, the Plaintiff allegedly slipped and fell on water in the produce aisle of a ShopRite located in Philadelphia.   The ShopRite employees came to the Plaintiff’s aid immediately after the incident and summoned medical assistance.   The manager also completed an incident report at that time. 

Approximately two (2) weeks after the incident, the store received a letter of representation from the Plaintiff’s attorney requesting that the store retain any surveillance video of the accident and/or the area in question for six (6) hours prior to the incident and three (3) hours after the incident.   The court noted that the letter from the Plaintiff’s attorney also cautioned that any failure by the store to maintain that video surveillance evidence until the disposition of the claim, it would be assumed by Plaintiff that the store intentionally destroyed and/or disposed of the evidence. The attorney also advised the store that it (the store) was not permitted to decide what evidence the Plaintiff would like to review for the case.  As such, the attorney specifically indicated in the letter to the store that “discarding any of the above evidence will lead to an adverse inference against you in this matter.”  

The court confirmed in its Opinion that the Plaintiff’s slip and fall was indeed captured on the store’s video surveillance system. 

However, according to the record before the court, the store decided to preserve only 37 minutes of the video prior to the Plaintiff’s fall and approximately 20 minutes after.   The store otherwise permitted the remainder of the film to be automatically overwritten after thirty (30) days. 

The court additionally noted that, during the course of the trial, defense counsel for the store told the jury in an opening statement that, “it is impossible to tell from the video if there was water on the floor, how it got there or when it got there.”  

At trial, the store’s manager testified that it was the store’s “rule of thumb” to preserve video surveillance from twenty (20) minutes before and twenty (20) minutes after a fall.   The store’s Risk Manager also testified that, in his opinion, the video produced was sufficient to see the defective condition, if it could be seen at all.   He additionally asserted that, since the substance on the floor could not be seen on the retained portion of the video, it “would be a fool’s errand” to go back several hours as requested.  He also asserted that it was impractical and costly to retain the requested six (6) hours of pre-incident video tape.  

At trial, the Plaintiff asserted that the store’s conscious decision not to retain the video evidence constituted spoliation for which the Plaintiff should be given an adverse inference charge to the jury.   

In opposition, the store argued that there was no relevant evidence as the video did not show drops of water on the floor.   The store also asserted that it did not act in bad faith in deleting the additional video requested.  

The trial court initially found that the fact that the video was requested did not, in and of itself, make the video relevant. The trial court also concluded that there was no bad faith on the part of the store. As such, the trial court refused to give the requested adverse inference charge.   However, the trial court did allow the Plaintiff’s counsel to argue to the jury that it should infer from the store’s decision not to retain more of the video prior to the fall supported a conclusion that the video was damaging to the store.   At trial, Plaintiff’s attorney made such an argument to the jury. 

The Superior Court noted that the defense counsel countered by asserting that, under the quality of the video, there was a question as to whether there was any expectation that, if more video had been saved, something else would have been seen particularly when the video showed an obviously small spot of water that could not be readily seen and given that one could not know when it came to be on the floor.  

The jury entered a defense verdict in favor of the store, finding no negligence.

On appeal, one (1) issue was raised for the Superior Court’s review, that being whether the trial court abused its discretion by failing to give a spoliation evidence instruction to the jury at trial.  

After reviewing the current status of Pennsylvania spoliation law and the penalty of an adverse inference, the Superior Court ruled that the trial court should have given such an instruction as the store’s conduct constituted spoliation.   

The court noted that other evidence confirmed that another fifty (50) minutes of time had passed between the last time that a store employee had inspected the area and the time noted on the video.   The court also noted that there was no testimony from anyone at the store that anyone had watched the video for the six (6) hour period prior to the fall to determine that it did not contain any relevant evidence.  Rather, the Superior Court noted that the record confirmed that the store unilaterally determined that there was no relevant evidence on the deleted tape.  

The Superior Court also noted that the trial court’s finding that there was no spoliation because the store did not act in bad faith was based upon an incorrect application of the doctrine of spoliation.   The appellate court noted that spoliation may be negligent, reckless, or intentional.   

The Superior Court additionally emphasized that the party’s good faith or bad faith in the destruction of potentially relevant evidence instead goes to the type of sanction that should be imposed, not whether a sanction is warranted in the first place.  

As such, the court vacated the judgment entered below in favor of the defense and remanded the case for a new trial.  

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


I send thanks to Attorney Cheryl Wolf of the Feasterville, PA law firm of Rovner, Allen, Robner, Zimmerman, Sigman & Schmidt, as well as Attorney James Hockenberry of the office of Leon Aussprung, M.D., LLC, for bringing this case to my attention. 

Allegations Sounding in Bad Faith Stricken From Straight UIM Breach of Contract Claim

In the case of Miller-Echevarria v. LM General Insurance Company, No. 19-Civil-14 (E.D. Pa. Feb. 14, 2019 Scmehl, J.), the court granted a Defendant’s Motion to Strike Immaterial/Impertinent Matter from a breach of contract Complaint filed against a UIM carrier.

According to the detailed Order, the Complaint before the court contained one (1) count for breach of contract due to the Defendant’s alleged failure to pay underinsured motorist benefits under a policy issued to the Plaintiff. 

The court struck any and all allegations related to the Defendant’s alleged handling or investigation of the Plaintiff’s claim, or the Defendant’s non-contractual obligations, as these allegations were found to be irrelevant and immaterial to the breach of contract claim.   As such, such allegations were stricken from the Complaint with prejudice.  

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

SAVE THE DATE: June 10, 2019 Lackawanna Pro Bono Golf Tournament at Elmhurst Country Club


Tuesday, April 30, 2019

Federal Court Rules that Pennsylvania Supreme Court Decision in Gallagher (Household Exclusion Invalid) Case Applies Retroactively




In the case of Butta v. Geico, No. 19-675 (E.D. Pa. April 19, 2019 Kearney, J.), Judge Mark Kearney of the Eastern District Federal Court of Pennsylvania ruled that the January, 2019 decision by the Pennsylvania Supreme Court in the case of Gallagher v. Geico, in which that Court eradicated the household exclusion under automobile insurance policies, should apply retroactively. 

As Tort Talkers may recall, in the Gallagher case, the Pennsylvania Supreme Court ruled, in a 5-2 fashion, that a household exclusion in a Geico policy violated the Pennsylvania Motor Vehicle Financial Responsibility Law because it served as a “de facto waiver” of stacked coverage.   The Gallagher decision not only applied to that case but also across the board.   Here is a LINK to the prior Tort Talk post on the Gallagher case, along with a link to that decision.

According to an April 24, 2019 article by Max Mitchell in the Pennsylvania Law Weekly entitled "‘Seismic’ Insurance Stacking Decision Applies Retroactively, Federal Judge Rules,” since the Gallagher decision came down, five (5) Class Action lawsuits have been filed aimed at seeking compensation for those who had their stacked benefits previously denied under the household exclusion.   This Butta case is one of those proposed class actions.  

In his Opinion, Judge Kearney analyzed his thoughts on his prediction as to how the Pennsylvania Supreme Court would rule on the issue of whether Gallagher should apply retroactively.   In the end, the Butta court ruled that it should be applied retroactively and analysis that the Opinion in Gallagher did not announce a new rule of law in Pennsylvania.  

Anyone wishing to review a copy of this decision in the Butta case may click this LINK. 

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

"Low Ball Offer" Bad Faith Claim Dismissed



In the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint.  

In Moran, the court noted that the only additions previously added to an original Complaint were facts that possibly supported the Plaintiff’s evaluation of the claims presented, but the court noted that no new facts were added as to why the carrier’s settlement offer was allegedly unreasonable or any new facts to show how the carrier new or recklessness disregarded the fact that its offer was unreasonable. 

Rather, the court noted that the additional facts added to the Amended Complaint by the Plaintiff did not allow anything other than a possible finding of a negligent valuation, which did not support a claim for bad faith.  

Judge Caputo ruled that insurance bad faith cannot arise solely from discrepancies or disagreements with regards to the evaluation of a case presented.  

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


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

I also send thanks as well as to Attorney Lee Applebaum, of the Philadelphia law firm of Fineman, Krekstein & Harris as well as from the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.