Thursday, January 31, 2019

Forrest Gump-Themed Civil Litigation Update CLE - REGISTRATION OPEN


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.


First Party Benefits/UIM Carrier's Reliance on IME Report in Evaluation Not Bad Faith

In the case of Phillips v. State Farm Mut. Auto. Ins. Co., No. 4:18-cv-01672 (M.D. Pa. Dec. 17, 2018 Brann, J.), the court dismissed a Plaintiff’s bad faith claim which was based upon an allegation that it was bad faith for the carrier to rely upon its own medical expert’s opinion rather than the insured’s medical expert.   The court found that such allegations alone did not make out a bad faith case.  

This case involved disputes between an insured and her own auto carrier over a first party benefits claim and a UIM claim.

Judge Matthew W. Brann
M.D.Pa.
In his Opinion, Judge Brann stated that it “is well-settled that, when making a claim determination, an insurer may reasonably rely on the findings of an independent medical examination - - even in the face of contrary medical opinion.”  

When reviewing the allegation that the carrier “improperly favored” its own expert’s conclusions, the court noted that “an insurer is not required to give greater credence to opinions of treating medical providers.” 

Judge Brann additional stated that, even if the carrier’s reliance upon its own medical expert amounted to alleged negligence or bad judgment, this did not rise to the level of statutory bad faith under Pennsylvania law.  

Accordingly, the bad faith count in the Plaintiff’s Complaint was dismissed but the Plaintiff was given the right to file an Amended Complaint if the deficiencies could be cured.

Anyone wishing to review this Opinion may click this LINK.


I send thanks to Attorney Lee Applebaum of the Philadelphia office of Fineman, Krekstein & Harris for bringing this case to my attention.   Check out Attorney Applebaum’s excellent blog, the Pennsylvania New Jersey Insurance Bad Faith Case Law blog HERE.   




Bad Faith Complaint Dismissed for Conclusory Allegations; But Leave to Amend Granted

In the case of Amica Mut. Ins. Co. v. Das, No. 18-1613, 2018 WL 6435332 (E.D. Pa. Dec. 1, 2018 Jones, J.), the Eastern Federal District Court of Pennsylvania granted a carrier’s Motion to Dismiss a claim for bad faith in a case arising out of a declaratory judgment dispute over whether the injured party was a “resident relative” under an automobile insurance policy.  

The court noted that, in the context of a Motion to Dismiss a bad faith claim, the party bringing the bad faith claim must describe who, what, where, when, and how the alleged bad faith conduct occurred.  

The court reaffirmed the well-settled rule of law that carriers do not act in bad faith simply by investigating claims to protect the carrier’s interests during litigation, unless there is some evidence of dishonest purpose shown.

In this case, the pleadings were found to be conclusory and lacking in details to support the bad faith claim.  

More specifically, the court found that the bad faith claim was not supported by any fact that explained how the alleged bad faith conduct occurred.   The court stated that there were no particular facts alleged to show how the carrier lacked a reasonable basis in its interpretation, administration, or investigation of the claim for UIM benefits.  The general, conclusory allegations that the carrier “unreasonably investigated” the claim were not supported by any facts indicating how the carrier’s handling procedures were deficient.

Moreover, the claims of alleged delays failed to set forth the specific dates of any acts or omissions that could show that the delays were allegedly unreasonable. 

The court also found no specific facts were alleged to support the assertions of obstructive tactics utilized by the carrier to allegedly force an inadequate settlement.  

Despite granting the Motion to Dismiss, the court did grant leave to the insured to file an amended pleading.  

Anyone wishing to review this decision online, may click this LINK.  The companion Order can be viewed HERE.

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.

Wednesday, January 30, 2019

SAVE THE DATE FOR THE FORREST GUMP THEMED CLE CIVIL LITIGATION UPDATE


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.


Tuesday, January 29, 2019

Judge Nealon of Lackawanna County Reaffirms Rule that Fishing Expeditions Are Not Permitted in Discovery





In the case of The Pennsylvania Trust Co. v. Wilkes-Barre Hospital Company, LLC, No. 17-CV-465 (C.P. Lacka.  Co. Jan. 3, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed objections to records subpoenas in a medical malpractice action.  

The Plaintiff objected to subpoenas that a Defendant hospital wanted to serve on various non-parties for the production of medical, education, and employment records of the minor Plaintiff’s parents.  The Plaintiff was attempting to avoid a fishing expedition by the defense in terms of discovery information.  

The court noted that the parents of the minor were not asserting any claims seeking damages in their own right.  The court also noted that the Complaint only demanded economic and non-economic damages on behalf of the minor Plaintiff under allegations of medical malpractice related to the birth of the minor.  

In terms of the subpoena for medical records, the court also confirmed that genetic testing of the minor following her birth as well as DNA testing for any genetic disorder were within normal limits.   The parents also both testified at their depositions that they themselves had not undergone any genetic testing and that they had no family history of any genetic disorders.   

With respect to the subpoenas for employment records of the parents, the court noted that the parents were questioned during their depositions regarding their educational and employment backgrounds.

In this matter, the Defendant hospital was seeking educational records for the father’s educational history as well as employment records and medical records over a 43-year history.   The court also noted that the Defendant hospital was seeking medical records and employment records on the mother relative to a 37-year period of her history.  

The Plaintiffs objected on the grounds that the proposed subpoenas were unlimited in scope and timeframe and were therefore overly broad and were requesting information that was entirely irrelevant to the subject matter of this action.  

 The Defendant hospital countered that the subpoenas were necessary to discover whether or not the parents had any medical history of any genetic disorders, in order to secure more information on the mother’s smoking history, and that the employment records were relevant to the Plaintiff’s claims that the minor had suffered a loss of future earning capacity.  

In ruling on the discovery dispute before him, Judge Nealon noted that discovery is liberally to be allowed with respect to any matter which is relevant and not privileged.  He also noted that the trial court is granted with broad discretion in overseeing discovery between the parties.   The judge also noted that any doubts regarding the relevancy of information requested in discovery are generally to be resolved in favor of allowing discovery.   Here, the court granted in part and denied in part the Plaintiff’s objections to the subpoenas.  

The court held that, although discovery should liberally be allowed as a general rule, “fishing expeditions” are not permitted under the guise of discovery.   Judge Nealon returned to his previous quoting of the late Judge John J. McDevitt, III, in noting “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’”  [citation omitted].  

The court more specifically ruled in this case that, since the parents were not advancing any individual claims, such as a claim for negligent infliction of emotional distress, their medical records dating back many years were found to be irrelevant.   Discovery requests for these medical records were also found not to be narrowly tailored to request genetic testing information as desired by the hospital. Rather, the overly broad subpoenas as worded would require the production of information that was entirely irrelevant and privileged.   Accordingly, this portion of the subpoena was not allowed.  

The court also held that the hospital’s desire to explore a possible connection between the mother’s smoking history and the issues present in this case did not justify cart blanche access to her lifetime of medical records.  

Therefore, the request for 37 years of medical records on the Plaintiff’s mother from a dozen different healthcare providers was found to be unreasonable and was not allowed.   

However, the court did allow the Defendants to request by subpoena any genetic testing information that may be contained in the medical records of each parent.  

With regards to the employment records of the parents, the court also found the subpoenas for any and all records over the entire work history of the parents to be unreasonable, particularly where the Defendants had obtained the earnings histories from the parents from the Social Security Administration.   The court noted that request for production for each parents’ employment and educational records, including disciplinary actions, incident reports, attendance records, and worker’s compensation claims, were unreasonable and tantamount to an unbridled fishing expedition.   As such, the subpoena was not allowed in this respect.  

Anyone wishing to review this detailed Order online may click this LINK.

Monday, January 28, 2019

PLEASE CONSIDER SIGNING 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.

Friday, January 25, 2019

Another Court Rules No Liability Under Hills and Ridges For Fall During Winter Event

Another decision has been rendered whereby a trial court has granted summary judgment to a Defendant under the Hills and Ridges Doctrine in a case where the Plaintiff allegedly slipped and fell during an active winter storm. 

Image result for walking in a blizzard
Could Any Court Ever Find Any Liability For a Fall During a Snowstorm?!

In the case of Beauford v. Second Nature Landscaping & Construction, Inc., No. 2016-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court held that a Defendant landowner was not liable for alleged injuries suffered by a Plaintiff in a slip and fall event that occurred during an active storm since the Defendant had no obligation under Pennsylvania law to correct the conditions until reasonable time after the storm ended.  

In its Opinion, the court noted that the facts pertaining to the weather conditions leading up to and after the Plaintiff’s event were uncontested.  More specifically, the court found that there was no factual dispute that the Plaintiff allegedly slipped and fell on an alleged ice puddle during an active weather event, that is, at a time when generally slippery conditions prevailed in the community.  

The court noted that, under applicable Pennsylvania law, a landowner has no obligation to correct any wintry conditions until a reasonable time after a winter storm has ended.   In this regard, the court cited Collins v. Phila. Suburban Dev. Corp., 179 A.3d 69 (Pa.Super. 2018), in which the Superior Court also held that there is no liability to landowners to persons injured as a result of a fall that occurs while a winter weather event is still active.   The Tort Talk post on the Collins case, as well as a Link to that decision, can be reviewed HERE.

In this Rule 1925 Opinion issued by the Delaware County Court of Common Pleas in the Beauford case, the court requested the Superior Court to affirm its entry of summary judgment. 

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

Zero Verdict in Dog Bite Case Upheld on Appeal (Non-Precedential)


In a non-precedential decision issued by the Pennsylvania Superior Court in the case of Anthony v. Rizzo, No. 1067 M.D.A. 2017 (Pa. Super. April 3, 2018 Bowes, J., Murray, J., and Blatt, J.) (Non-precedential Op. by Murray, J.), the Pennsylvania Superior Court affirmed the trial court decision by the Honorable Lesa S. Gelb following an appeal from the judgement entered in favor of the Defendants after a jury awarded the Plaintiff $0 damages in this negligence cause of action arising out of an alleged dog bite by a poodle.  

According to the Opinion, the Plaintiff was employed as a house cleaner for the Defendants.   The Plaintiff had walked up to the Defendant’s car in which a poodle was located, unrestrained and in the rear seat with the windows opened.  As the Plaintiff approached the car, the dog “came into contact” with the Plaintiff’s right forearm. 

 The Opinion indicates that the Plaintiff was treated for what was described as a dog bite which involve an avulsion, or tearing of the skin, on the Plaintiff’s right forearm. The Plaintiff treated with her family doctor who cleaned the area, applied steri-strips, prescribed antibiotics, and administered a tetanus shot.    The Plaintiff had a follow-up visit with the family doctor one (1) month later at which point the Plaintiff's injury was noted to appear to be healing. The Plaintiff was not referred to any plastic surgeon to discuss any scarring-related issues.

As reflected on the verdict slip, the jury found that the Defendants were negligent and that the negligence of the Defendant was a factual cause of the Plaintiff’s harm.   However, the jury also attributed 50% of the causal negligence to the Plaintiff.  As for damages, the jury wrote down $0 on the verdict slip.  

The Plaintiff raised two (2) issues on appeal, first the Plaintiff asserted that the trial court committed an error in denying the Plaintiff’s Motion to Preclude a Verdict Slip Question and Jury Instruction on factual cause when it was not disputed that the Plaintiff had suffered some injury as a result of the accident.

The Plaintiff’s second issue was whether the trial court committed an error of law in denying the Plaintiff’s Motion for a new trial on damages since the jury’s verdict was so contrary to the evidence that it shocked one’s sense of justice.  

As to the first issue, the Superior Court stated that its review of the trial court’s jury instruction on factual cause revealed that that instruction was nearly identical to the Pennsylvania Standard Jury Instruction.   As such, the Superior Court found that the trial court provided an adequate instruction for factual cause to sufficiently guide the jury in its deliberation.   The Superior Court also noted that, even if an error had occurred in this regard, such error would be harmless because the jury found that the Defendant’s negligence was indeed a factual cause of the Plaintiff's harm in any event.  

 The appellate court also rejected the Plaintiff’s contention that the jury’s verdict was against the weight of the evidence.   Given that the appellate court agreed that the Plaintiff did not offer sufficient evidence in support of a claim for “compensable” pain, there was no need to overturn the decision below.   This was particularly so in this case where the Plaintiff had not presented any expert medical testimony about her alleged pain and suffering and where the Defendants asserted that the Plaintiff had suffered a mere scratch that represented a minor injury.  

As such, the Plaintiff’s appeal was denied and Judge Gelb’s decision below was affirmed by the Pennsylvania Superior Court. 

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

I send thanks to Attorney Stephen T. Kopko of my office for bringing this decision to my attention. 

Thursday, January 24, 2019

A Primer on the Rules Pertaining to Use of Depositions At Trial


In the case of Mueller v. 20th Century Glove Corp., No. 11901-2016 (C.P. Erie. Co. 2018 Domitrovich, J.), the court allowed, over the objections of various Defendants, a Plaintiff's attorney to use a deposition of a Plaintiff at trial where the Plaintiff had died during the litigation.  In so ruling the court noted that the defense counsel had an opportunity during the deposition to cross-examine the Plaintiff.

The case provides a nice overview of hearsay rules and Pa.R.C.P. 4020 pertaining to the use of depositions at trial.

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

I send thanks to Attorney Craig Murphey of the Erie, PA law firm of Purchase, George & Murphey for providing me with a copy of this decision.

A Primer on Interlocutory Appeals


In the case of DSP II, LP v. Dr. Matt Vegari 2012 Irrevocable Trust, No. 18-CV-517 (C.P. Lacka. Co. Nov. 27, 2018 Nealon, J.), the court ruled that an Order overruling Defendant’s Preliminary Objections as to venue did not constitute an appealable Interlocutory Order.   The court therefore ruled, in its Rule 1925 Opinion, that the Defendant’s appeal should be dismissed. 

Judge Terrence R. Nealon
Lackawanna County

 
The court noted that an appeal from a ruling on the Defendant’s Preliminary Objections constituted an Interlocutory Order and that an appeal of such Order is only permitted “as of right” pursuant to Pa.R.A.P. 311, or if the Defendant had secured permission to appeal the Interlocutory Order under Pa.R.A.P. 312.  

Since the Defendant did not petition for permission to appeal and given that the language required under 42 Pa. C.S.A. §702(b) was not included in the Order, the Defendant was not entitled to appeal the court’s decision on the Preliminary Objections pertaining to venue. As such, in this Rule 1925 Opinion, Judge Nealon concluded that the appeal should be dismissed.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 18, 2018)




Wednesday, January 23, 2019

BREAKING NEWS: Pennsylvania Supreme Court Rules That Household Exclusions Are Unenforceable As A Matter of Law




In a 5-2 decision, in the case of Gallagher v. GEICO, 35 WAP 2017 (Pa. Jan. 23, 2019)(Op. by Baer)(Dissenting Op. by Wecht), handed down by the Pennsylvania Supreme Court today, the Court held that the household exclusion impermissibly narrows the mandates of Section 1738 and, as a result, violates the Pennsylvania Motor Vehicle Financial Responsibility Law.  As such, the household exclusion is impermissible as a matter of law. 
In this matter, the Plaintiff was operating a motorcycle when he was involved in an accident with another vehicle.
At the time of the accident, the Plaintiff had two policies with GEICO.  One policy, which included $50,000 of UIM coverage, only covered the motorcycle.  The second policy purchased by the Plaintiff from GEICO covered two other vehicles owned by the Plaintiff and provided for $100,000 of UIM coverage for each vehicle.  The Plaintiff opted and paid for stacked UM and UIM coverage when purchasing both policies.  Thus, when stacked, the policies amounted to $250,000 in UIM coverage if the household exclusion in the Automobile policy was found not to apply.
GEICO asserted that the household exclusion in the Automobile policy precluded the Plaintiff from recovering the UIM benefits under that policy.  The Plaintiff argued that the household exclusion stripped him of the stacked coverage he was entitled to under the MVFRL because he did not waive stacked UIM coverage.
The Court in Gallagher turned to Section 1738 of the MVFRL and noted that that provision provides that the limits of coverage for each vehicle owned by an insured “shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.”  The court noted that this Section specifically applies “[w]hen more than one vehicle is insured under one or more policies” providing UM/UIM coverage.  The Supreme Court stated that, “[i]n other words, stacked UM/UIM coverage is the default coverage available to every insured and provides stacked coverage on all vehicles and all policies.”  See Op. at p. 10.
The Supreme Court sided with the Plaintiff under the basic rationale that the household exclusion “is inconsistent with the unambiguous requirement of Section 1738 of the MVFRL under the facts of this case insomuch as it acts as a de facto waiver of stacked UIM coverage provided for in the MVFRL, despite the indisputable reality that [the Plaintiff] did not sign the statutorily prescribed UIM coverage waiver form.”  See Op. at p. 11.
The Court went on to note that in a case such as this one where the same carrier issued all of the policies at issue, it could have charged higher premiums and/or secured a valid waiver of stacked coverage between the policies from the insured in order to avoid the result of this decision.
Anyone wishing to read this decision, including the dissent, may click this LINK
Commentary:  Going forward, instead of now attempting to rely upon now invalid household exclusions, carriers may be charging higher premiums for stacked coverage or requiring its insureds to sign more stacking waiver forms.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this decision to my attention.  I also send thanks to the numerous other attorneys who forwarded this decision as well.  Thank you.

MOCK TRIAL JURORS NEEDED PLEASE


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.

Tuesday, January 22, 2019

Judge Nealon of Lackawanna County Denies Motion to Sever Post-Koken Claims But Foreshadows That Bifurcation of Trial May Be Warranted When Punitive Damages in Play

In the case of Martin v. Ochenduszko, No. 17-CV-3912 (C.P. Lacka. Co. Jan. 16, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the UIM carrier’s Motion to Sever the Plaintiffs’ UIM claims from the tort claims asserted against a tortfeasor Defendant against whom punitive damages claims were pled given the Defendant-driver’s alleged operation of a vehicle under the influence of controlled substances at the time of the accident.  

According to the Opinion, this Motion to Sever was filed after the tortfeasor confirmed an admission of liability for the accident and after his carrier had tendered its liability limits to the Plaintiff in settlement of the tort claims, which settlement the Plaintiff had not yet accepted.  The Plaintiff was apparently trying to strategically keep the DUI tortfeasor Defendant in the case with the UIM carrier Co-Defendant. 

The motion filed by the UIM carrier sought to sever the UIM claims from the tort claims and to stay consideration of the UIM claims until the tort claims had been concluded.

Judge Terrence R. Nealon
Lackawanna County

 
Judge Nealon reviewed the rules under Pa.R.C.P. 213(b) regarding the severance of claims and noted that, while the compensatory damages claims that are recoverable from the tortfeasor and the UIM carrier involved the same evidence and issues, the Plaintiffs’ punitive damages claims are “irrelevant to the compensatory damages determinations, and proof of the motorist’s illegal drug use could unfairly prejudice the UIM insurer by inflaming the jurors’ passions or emotions and improperly influencing the compensatory damages awards.”  See Op. at 2.

As such, although Judge Nealon noted that bifurcation of the compensatory damages and the punitive damages claims for trial appeared to be warranted under the circumstances presented, the court left that decision to be made by an assigned trial judge after discovery has been completed the case certified for trial.  

In the meantime, the court found no legitimate basis for severing the tort and UIM claims during the course of pre-trial discovery.  The court also found no basis for staying the litigation process with respect to the UIM claims as requested by the UIM carrier.

Accordingly, the UIM carrier's Motion to Sever and Stay relative to discovery and pre-trial purposes was denied and any ruling on a Motion to Bifurcate the trial was deferred to be decided by a later assigned trial judge.

Anyone wishing to review this decision may click this LINK. 

I send thanks to Attorney Stephen T. Kopko for bringing this case to my attention.   
 

Timing of Proper Removal of State Court Action to Federal Court Reviewed

In the case of Bracken v. Dolgencorp, LLC, No. 18-4703 (E.D. Pa. Nov. 289, 2018 Carney, J.) (Mem. Op.), the court addressed whether a Defendant’s removal of a case to federal court was untimely.  

According to the Opinion, a Philadelphia tractor trailer driver sued a company from outside of Pennsylvania in a Philadelphia state court in a personal injury action that arose out of injuries suffered when a trailer lift gait malfunctioned.   

The court noted that the Federal Rules of Civil Procedure allow Defendants in state court actions to remove a case to federal court where more than $75,000.00 is at issue between diverse parties.  However, the Notice of Removal is required to be filed within thirty (30) days of when a Defendant can reasonably and intelligently conclude that the case involves a value that is than $75,000.00 federal court jurisdictional limit.  

The court in this matter otherwise indicated that the Rules do not allow parties to sit on their rights and remove a state court case to federal court long after knowing that the case is within the federal court’s subject matter jurisdiction. 

In this case, the Defendant filed a Notice of Removal more than thirty (30) days after the service of the Complaint upon that Defendant.  

The court noted that the Complaint in this matter permitted the Defendants to reasonably and intelligently conclude that the Plaintiffs had suffered damages potentially in excess of $75,000.00 based on allegations of permanent spinal and nervous system injuries, ongoing medical care, lost wages, and lost earning capacity.   The court found that the Defendant was aware of these allegations by virtue of the Complaint even though the dollar amount of the alleged damages was not identified until more recently.

After a review of the case before it, the court in this Bracken case remanded the matter to the Philadelphia Court of Common Pleas given that the Complaint did indeed allow the Defendants to reasonably and intelligently conclude that the Plaintiff had suffered damages potentially in excess of $75,000.00. 

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

Federal Court Rejects Effort by Plaintiff to Join Post-Koken Negligence Action Against Tortfeasor in State Court with Federal Court Claims

In the case of Pastin v. Allstate  Ins. Co., No. 17-CV-1503 (W.D. Pa. Nov. 30, 2018 Horan, J.), the court rejected an effort by a Plaintiff to join her underlying state court negligence action against the tortfeasor in a motor vehicle accident case with her UIM bad faith and breach of contract action filed in the federal court against her own carrier.  

According to the Opinion, the tortfeasor Defendant in the state case and the Plaintiff were insured by the same carrier.  

The court rejected this motion by the Plaintiff, observing that the two (2) actions were separate and distinct.  The court found no basis to join the underlying state action with the federal bad faith action simply because of the fortuity that the same carrier was involved in both claims.  

Anyone wishing to review a copy of 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 and New Jersey Insurance Bad Faith Case Law blog, for bringing this decision to my attention.  

Monday, January 21, 2019

Application of Sudden Emergency Rule Upheld; Also, Evidence of Post-Accident Alterations of Road by PennDOT Not Admissible


In the case of Mitchell v. Milburn, No. 344 C.D. 2017 (Pa. Cmwlth. Dec. 6, 2018 McCullough, Leavitt, and Cannon, J.) (Op. by McCullough, J.), the court ruled that the sudden emergency doctrine is an absolute defense to an allegation of negligence and is available to any Defendant who suddenly and unexpectedly finds himself or herself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately.

The Plaintiff sued the two other drivers involved in the accident and also sued PennDOT apparently relative to the design of the intersection. 

The Plaintiff settled on a joint tort basis with the rear ending Defendant prior to trial for an unspecified amount, with the agreement being that that Defendant would remain on the verdict slip for purposes of apportioning the percentages of liability amongst the parties.  The other driver Defendant secured a non-suit under the facts presented.

The jury entered a $2.3 million dollar verdict in favor of the Plaintiff and assessed 100% of the liability on the rear-ending Defendant who had settled out prior to trial. 

The Plaintiff filed post-trial motions relative to the entry of a non-suit in favor of the driver-Defendant and relative to the trial court's refusal to allow into evidence the fact that PennDOT altered the intersection after this accident.

The court ruled that the Plaintiff’s version of the accident that she was hit from behind and shoved to the Defendant’s oncoming traffic lane established a sudden emergency as a matter of law from the perspective of the Defendant approaching in the oncoming lane.  

When reviewing the trial court's entry of a non-suit in favor of the oncoming Defendant-driver, the Commonwealth Court additionally relied upon the well-settled rule of law that a mere happening of an accident is not evidence of negligence.  

Also of note in this decision is the Commonwealth Court’s ruling that Defendant PennDOT’s subsequent alteration of the intersection was inadmissible in the case as evidence of a subsequent remedial measure.  

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. 

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.