Thursday, January 30, 2020

Third Circuit Applies Statute of Limitations Discovery Rule in Med Mal Context



Should a Plaintiff be charged with knowledge of an injury being the result of a defective product to start the clock running on the statute of limitations where the product was implanted in the Plaintiff's body during a medical procedure?

That was the issue in the case of Adams v. Zimmer US, Inc., No. 18-3011 (3d. Cir. Nov. 20, 2019), in which the Third Circuit Court of Appeals held that the district court erred in granting the Defendant’s summary judgment based upon the statute of limitations in a products liability suit involving a hip implant.  The Court of Appeals ruled that the Plaintiff could not be charged with constructive knowledge of an allegedly defective hip implant where even her own doctor did not realize there was a problem with the implant until the Plaintiff underwent revision surgery.

The Court of Appeals noted that, under Pennsylvania’s discovery rule, the commencement of the limitations period is based upon an inquiry notice, which is tied to some knowledge of some form of significant harm and of a factual cause linking that harm to another’s conduct. The Court noted that the discovery rule does not require notice as to the full extent of the injury, the fact of actual negligence, or the precise cause of the injury.

The court also emphasized that, under the discovery rule, the statute of limitations begins to run when the Plaintiff knew, or in the exercise of reasonable diligence, should have known that she was injured and that the injury was caused by another person. The court noted that, in a medical malpractice context, “diagnostic uncertainty usually creates a jury question.”

The court further noted that the discovery rule does require a patient to have a precise medical diagnosis to start the running of a statute of limitations. Rather, a lay person in the medical malpractice context is only charged with the knowledge communicated to him or her by the medical professionals who provided treatment and diagnosis.

Here, the court found that, if the treating doctor did not realize a problem with the implant that was injuring the Plaintiff until the revision surgery, then the Plaintiff certainly could not be charged with such constructive knowledge. Therefore, given that factual disputes remained regarding the application of the discovery rule to the case presented, the court held that the lower court had erred in granting the Defendant summary judgment.

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

Wednesday, January 29, 2020

Trial Court Judge Rejects Uber's Effort To Enforce Binding Arbitration Clause Against Plaintiff Injured While In Uber Vehicle Accident





As the public’s use of Uber vehicles increasingly becomes the norm, cases pertaining to accidents involving Uber vehicles are on the rise.

Notably, when a customer downloads Uber’s app, the customer agrees that the customer is older than 18 and that the customer will not use a stolen credit card to pay your driver. One other possible provision of the agreement entered into with Uber when the app is downloaded is that the customer will agree to arbitrate all claims asserted against Uber.

That issue came to a head in the case of Kemenosh v. Uber Technologies, No. 181102703(C.P. Phila. Co. Jan. 3, 2020 Fletman, J.), which involved a Plaintiff who was injured as a passenger in an Uber vehicle when the Uber driver allegedly ran a red light and was involved in an accident in Center City Philadelphia.

After the Plaintiff filed suit against Uber and others, Uber filed preliminary objections asserting that the Plaintiff had agreed to resolved all claims by way of arbitration.

Uber argued that, by approving the ride-share’s “terms and conditions” when she downloaded the app prior to the accident, the Plaintiff had forfeited her right to a jury trial and had agreed, instead, to resolve any legal disputes only through binding arbitration.

Judge Abbe F. Fletman
Philadelphia County

Judge Abbe F. Fletman of Philadelphia Common Pleas Court disagreed and ruled that, because Uber was not able to prove that the Plaintiff actually read the company’s terms and conditions as she downloaded the app or before she rode in the Uber car that ran a red light, she cannot be forced to proceed to arbitration instead of her chosen forum of a jury trial.

The court found that, because the app makes it possible to register for Uber’s services without clicking on a hyperlink to review the company’s terms of service, “the registration process did not properly communicate an offer to arbitrate under Pennsylvania law.”

Judge Fletman did note that if the Plaintiff had been required to click the hyperlink to the binding arbitration clause language, and had checked a box confirming that she read and agreed to Uber’s terms and conditions, or received email notice of the company’s policies, Uber’s arbitration-only rule would perhaps be valid.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken O'Neill of the Law Offices of Kenneth S. O'Neill for bringing this case to my attention.


UPDATE: On February 10, 2020, the trial court judge granted Uber's Motion for Reconsideration of this decision and vacated this decision.  


Tuesday, January 28, 2020

Pennsylvania Superior Court Provides Guidance to Trial Courts on What To Do (And What Not To Do) if Jury Returns a Zero Verdict


In the case of Avery v. Cercone, 2019 Pa. Super. 366 (Pa. Super. Dec. 23, 2019 Kunselman, J., Bender, J., and Musmanno, J.) (Op. by Kunselman, J.), the court reversed in part and vacated in part the lower court’s decision on the Plaintiff’s post-trial motions in a case in which the jury awarded damages for economic damages but zero dollars for the Plaintiff’s pain and suffering claim. 

The court reaffirmed the rule of law that a jury is always free to award zero dollars on a pain and suffering claim. However the court noted that, in some instances, such a verdict can be against the weight of the evidence, particular where the injury is not contested by the defense. 

The appellate court noted that the trial court erred by providing an additional jury instruction suggesting that the weight of the evidence did not support the jury’s initial verdict. Providing the jury with such an instruction invades the province of the jury. 

The Superior Court held that the trial court should have let the verdict stand and left it to the Plaintiff to file post-trial motions to challenge the verdict as being against the weight of the evidence. 

 As such, the revised verdict was found to be in error and was vacated. The case was remanded back to the trial court to determine whether the verdict was indeed against the weight of the evidence under the “shocks the judicial conscience” standard. 

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

Jury Comes Back with $20,000 Verdict After First Handing Down Zero Verdict



Here is a case that highlights the uncertainty associated with sending a jury back out to deliberate further after they have entered a zero ($0) in an admitted liability case.

In the case of Vella v. Hopkins, No. 16-S-1314 (C.P. Adams Co. Aug. 12, 2019 Campbell, J.), the court denied a Plaintiff’s Motion for a New Trial after finding that the jury did not ignore the court’s jury instructions and that the verdict was not against the weight of the evidence.

This matter arose out of a motor vehicle accident. At trial, the Defendant admitted liability such that the only issue at trial was on damages. The court also noted that, although medical experts for both the Plaintiff and the Defendant agreed that the Plaintiff had sustained some level of injury, the experts disagreed on the extent of injury.

The jury initially returned a verdict of zero ($0) for all damages alleged.

The court ordered the jury to return to its deliberations because the parties had stipulated that the Defendant was at fault for causing the accident and, in the eyes of the court, the jury had to award at least some damages.

After a further short deliberation, the jury returned with a verdict in favor of the Plaintiff for Twenty Thousand Dollars ($20,000.00). The verdict included damages for past, present, and future pain and suffering but did not provide any award for loss of earning capacity or disfigurement.

In a post-trial motion, the Plaintiff sought a new trial on damages under an argument that the jury had ignored the court’s instructions and that the final verdict was so low that it was against the weight of the evidence. The Plaintiff argued, in part, that the jury did not carefully consider damages the second time around during deliberations because it spent no more than fifteen (15) minutes before returning with its $20,000.00 verdict.

The court held that the length of time that the jury spent deliberating did not serve to nullify the award. The trial court also noted that it had polled the jurors after they returned from their final deliberations and that the required number of jurors were in agreement regarding the amount of damages.

The court otherwise found that the verdict did not shock one’s sense of justice and, therefore, the Plaintiffs claim that it was entitled to a new trial based upon the weight of the evidence was rejected. The court found that the verdict had a reasonable relationship to the evidence presented, particularly where the experts differed on the extent of injury.

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


To review an article on the law of litigating a zero verdict, please click HERE.



Sunday, January 26, 2020

Mock Trial Jurors Needed


The Lackawanna Bar Association Young Lawyers Division is in need of volunteer jurors for the 2020 High School Mock Trial Competition. As in years' past, the YLD is excited to bring local attorneys into the courtroom to help evaluate our local high school students as they present a case in front of a local judge. Please come out and support by being a juror!

- Round 1 begins Tuesday-
January 28 at 6:00 p.m.
5 Trials

**SNOW DATE - Wednesday, January 29**

Contact
Ryan

or

Kaitlin
kmcdonough@lackawannabar.org or (570)969-9161


Jurors also needed for Round II
Tuesday, February 4, 2020
6:00 p.m.
**SNOW DATE - Wednesday, February 5**


The Lackawanna Bar Association Young Lawyers Division is in need of volunteer jurors for the 2020 High School Mock Trial Competition. As in years' past, the YLD is excited to bring local attorneys into the courtroom to help evaluate our local high school students as they present a case in front of a local judge. Please come out and support by being a juror!

- Round 1 begins Tuesday-
January 28 at 6:00 p.m.
5 Trials

**SNOW DATE - Wednesday, January 29**

Contact
Ryan

or

Kaitlin
kmcdonough@lackawannabar.org or (570)969-9161


Jurors also needed for Round II
Tuesday, February 4, 2020
6:00 p.m.
**SNOW DATE - Wednesday, February 5**

Friday, January 24, 2020

CAN YOU PLEASE SERVE AS A MOCK TRIAL JUROR?


The Lackawanna Bar Association Young Lawyers Division is in need of volunteer jurors for the 2020 High School Mock Trial Competition. As in years' past, the YLD is excited to bring local attorneys into the courtroom to help evaluate our local high school students as they present a case in front of a local judge. Please come out and support by being a juror!

- Round 1 begins Tuesday-
January 28 at 6:00 p.m.
5 Trials

**SNOW DATE - Wednesday, January 29**

Contact
Ryan

or

Kaitlin
kmcdonough@lackawannabar.org or (570)969-9161


Jurors also needed for Round II
Tuesday, February 4, 2020
6:00 p.m.
**SNOW DATE - Wednesday, February 5**

Eastern Federal District Court of PA Rules That Snowtubing Activities Do Not Fall Under Skier's Responsibility Act


Does Pennsylvania's Skier's Responsibility Act apply to snowtubing?

In what appears to be a case of first impression, the court in the case of Amadeo v. Spring Mountain Adventures, Inc., No. 18-2472 (E.D. Pa. Nov. 1, 2019 Kenney, J.), denied a Defendant's motion for summary judgment and ruled that protections afforded to defendant ski resorts under Pennsylvania Skier’s Responsibility Act do not apply to snowtubing activities.

According to the short matter-of-fact Opinion of the court, the Plaintiff injured her ankle when her snow tube hit a barrier at the end of a run.

The defense filed a motion for summary judgment under Pennsylvania's Skier's Responsibility Act and argued that, under that Act, snowtubing activities carry inherent risks that a participant assumes when engaging in such activities.

The court here noted that no prior decisions had ruled that snowtubing activities fell under the ambit of the Act which is focused on downhill skiing activities.  The court in this Amadeo case predicted that, if faced with the issue, the Pennsylvania Supreme Court would fall on the side that favors plaintiffs and would rule that snowtubing should be viewed as an "inherently benign" activity under Pennsylvania law.

As such, since the court found that the Skier's Responsibility Act did not support the granting of the Defendant's motion for summary judgment, the motion was denied.

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

Postscript:  According to this LINK to a page on the defendant's website, the defendant is no longer able to offer snowtubing activities at its location due to a change in insurance coverage, which coverage does not provide liability protection for snowtubing activities.

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

Skiing Accident Case Survives Summary Judgment


In the case of Kozlowski v. JFBB Ski Areas, Inc., No. 3:18-cv-353 (M.D. Pa. Dec. 12, 2019 Mariani, J.), the court addressed a Motion for Summary Judgment filed on behalf of a Defendant in a case arising out of a skiing accident that occurred at the Big Boulder Ski Resort. The Plaintiff filed a Complaint alleging a claim of negligence and a count in gross negligence/recklessness.

In his Complaint, the Plaintiff alleged that he was skiing at Big Boulder ski resort and, as it came to an intersection of trails, he followed tracks which led to an embankment at the edge of a catwalk. The Plaintiff additionally alleged that, as he skied down the embankment, he suddenly and unexpectedly collided with partially exposed snowmaking pipes which alleged could not be seen from a reasonable safe distance in the area where he was skiing. The Plaintiff alleges injuries as a result.
Before the court was a Motion for Summary Judgment by the Defendant asserting that the Plaintiff’s claims were barred by the Pennsylvania Skier’s Responsibility Act, the common law construing that act, and the release found on Big Boulder’s ski lift ticket.

The court denied the motion on various grounds.

Judge Robert D. Mariani
M.D.Pa.
Relative to the defense claim that the Plaintiff’s negligence count was barred by the assumption of risk doctrine as bound under the Skier’s Responsibility Act, the court noted that the Defendant had not established, as a matter of law, that the risk at issue (colliding with hidden snowmaking pipes) is inherent in the sport of downhill skiing.

On the claims of gross negligence and/or recklessness, the court decided that judgment could not be entered on the current record as the case was not entirely free from doubt. As such, the court allowed this issue to go to the jury. 

Relative to the validity of the Release language contained on the Big Boulder lift ticket, the court noted that, since it had ruled that the question of gross negligence and/or recklessness could not be determined that this stayed the proceeding, the validity of the lift ticket release provision, and whether it applied to claims of gross negligence and recklessness, also could not be determined on the current record before the court. 

For these reasons, the court denied the Motion for Summary Judgment filed by the Defendant.

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

Pennsylvania Skier's Responsibility Act Applies to Plaintiff Hurt While Standing in Line at Ski Lift


In the case of Borden v. Grossberger, No. 187-Civil-2019 (C.P. Monroe Co. Dec. 10, 2019 Harlacher-Sibum, J.), granted a Defendant’s Motion for Judgment on the Pleadings in a snowboarding accident case.

According to the Opinion, the Plaintiff asserted that she was injured when the minor Defendant, who was snowboarding at the time, struck the Plaintiff as she waited in line to board the ski lift. 

The Plaintiff filed suit against the minor, the parents of the minor, and the ski resort. 

The minor Plaintiff filed a Motion for Judgment on the Pleadings alleging that the Plaintiff’s claims against him were barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. §7102(c). 

The court in this snowboarding case noted that previous appellate court decisions have held that the Pennsylvania Skier’s Responsibility Act applies equally to snowboarders. 

Also, from the perspective of the skier Plaintiff, Judge Harlacher Sibum also noted that the sport of downhill skiing to which the Pennsylvania Skier’s Responsibility Act is to be interpreted broadly and is not strictly limited to those times where a person is actually skiing downhill. Rather, the courts have held that other activities directly and necessarily incident to the act of downhill skiing, such as boarding a ski lift, riding a lift up the mountains, a lighting from the lift, and engaging in other skiing activities, all fall under the scope of the act. 

In this matter, the Plaintiff, who was standing at the base of a hill and waiting to get on a ski lift, was attempting to assert that she was not in engaging the sport of downhill skiing at the time she was struck by the snowboarder. 

The court ruled that the language of the Plaintiff’s Complaint, which confirmed that the Plaintiff was in line to board the ski lift, brought the Plaintiff’s case under the Act. The court noted that it would be “a tortured reading of the Complaint to reach the conclusion that Plaintiff was in the line for any other purpose.” 

Having determined that the Plaintiff was engaged in the sport of downhill skiing, the court continued its analysis under the Act and determined that the case law confirms that being struck by other skiers is an inherent risk of the sport of downhill skiing. 

 As such, Judge Harlacher Sibum held that the Pennsylvania Skier’s Responsibility Act applied and served to support a finding that the Plaintiff’s claims against the minor Plaintiff were barred by the assumption of risk doctrine as preserved under that Act. Accordingly, the court entered judgment as a matter of law in favor of the Defendant snowboarder who allegedly crashed into the Plaintiff.

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

I send thanks to Attorney Hugh J. Gillespie of the Plymouth Meeting, Pennsylvania Law Offices of Lester G. Weinraub for bringing this case to my attention.

Thursday, January 23, 2020

PLEASE SIGN UP TO BE A MOCK TRIAL JUROR


The Lackawanna Bar Association Young Lawyers Division is in need of volunteer jurors for the 2020 High School Mock Trial Competition. As in years' past, the YLD is excited to bring local attorneys into the courtroom to help evaluate our local high school students as they present a case in front of a local judge. Please come out and support by being a juror!

- Round 1 begins Tuesday-
January 28 at 6:00 p.m.
5 Trials

**SNOW DATE - Wednesday, January 29**

Contact
Ryan

or

Kaitlin
kmcdonough@lackawannabar.org or (570)969-9161


Jurors also needed for Round II
Tuesday, February 4, 2020
6:00 p.m.
**SNOW DATE - Wednesday, February 5**

Wednesday, January 22, 2020

Pennsylvania Superior Court Holds that Defendants Can Pursue Cross-Claims Even After Plaintiff Settles Out


In the case of Bollard & Assoc., Inc. v. PA Assoc., 2019 Pa. Super. 345 (Pa. Super. Nov. 19, 2019) (Op. by Collins, J.), the Pennsylvania Superior Court found that a trial court committed reversible error when it marked the case discontinued in its entirety based upon the settlement and the discontinuance of the Plaintiff’s claims against all Defendants where there is no evidence that the settlement of the Plaintiff’s claims resolved or barred the Defendants’ cross-claims.

This case arose out of allegations of fraudulent transfers.

The appellate court noted that the Defendants should have been able to continue to pursue their cross-claims for indemnity and contribution even though the Plaintiff had settled out.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).



Tuesday, January 21, 2020

Summary Judgment Granted in Bad Faith Matter Involving Unlicensed Driver


In the case of Lewandowski v. Nationwide Mut. Ins. Co., No. 18-1441 (W.D. Pa. Dec. 20, 2019 Bissoon, J.), the court granted the carrier’s Motion for Summary Judgment on coverage and bad faith issues. 

According to the Opinion, the Plaintiff loaned her car to her boyfriend. Unbeknownst to her, the boyfriend’s license was suspended. The boyfriend got into an accident and, thereafter, the carrier denied coverage based upon an exclusion for drivers driving with suspended licenses. 

The Plaintiff sued for breach of contract and bad faith. The parties filed cross motions for summary judgment. 

The court analyzed the exclusion at issue and found that it applied to support the carrier’s denial of coverage. In so ruling, the court denied the insured’s efforts to read the policy differently. The court noted that it was applying the words of the policy in their natural, plain, and ordinary sense. 

As such, the court held that the insured’s attempts to read ambiguity into the policy where none existed cannot demonstrate bad faith or breach of contract as a matter of law. 

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for continuing updates on important Pennsylvania bad faith cases.


Bad Faith Victory for Plaintiff in Lehigh County


In the case of Unterberg v Mercury Ins. Co., No. 2016-C-806 (C.P. Lehigh Co. Dec. 27, 2019 Pavlack, J.), the court entered judgment in favor of a Plaintiff and against the carrier on both a breach of contract claim and on a statutory bad faith claim with the bad faith damages to be determined in a separate hearing. 

This case arose out of the carrier’s denial of a theft and/or vandalism claim relative to the insured’s vehicle. 

According to the findings of the court, there was no reason to believe that the insureds had anything to do with the theft or the vandalism of their vehicle. 

The carrier had issued a denial letter that contained reasons for the carrier’s denial of the claim which included, in part, a determination by the carrier that there was insufficient evidence to support the claim that the vehicle was stolen. Although this determination was based, in part, upon statements under oath, the claims handler testified that she could not remember what statements under oath led the carrier to deny the claim.

The court also noted that the claims department had been advised that the insured-wife was uncooperative with the investigation by the carrier because she failed to bring unredacted tax returns and cell phone records to her examination under oath.

The court found in its Findings of Fact that it found that the Plaintiff-wife had indeed cooperated with the investigation. The court noted that the record confirmed that the Plaintiff had brought redacted documents to her examination under oath as instructed but could not comply with the request for phone records due to HIPAA privacy laws. 

The court additionally noted that, under the denial letter, it was indicated that, with respect to the examination of the vehicle, the carrier found no evidence of a forced entry into the vehicle and that the ignition switch were intact. However, elsewhere in the opinion, it was indicated that the ignition switch had been vandalized by being filled with and covered with glue.

The court also otherwise held that forced entry into a vehicle was not required to establish theft pursuant to the policy. Therefore, the court found that the alleged lack of evidence of a forced entry into the vehicle was not a reasonable basis for denying a theft claim. 

After reviewing other issues to support its opinion, the court found that the carrier breached its contract and that the carrier had no basis to deny the claim particularly where employees of the carrier had admitted that the vehicle was vandalized based upon the investigation completed. 

The court also found that the carrier knew or recklessly disregarded its lack of a reasonable basis in denying the claim presented. Accordingly, the court held that the carrier acted in bad faith when it denied the insurance claim of the Plaintiff. 

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

I send thanks to the prevailing Plaintiff’s attorney, Steven A. Bergstein of the Allentown, Pennsylvania law office of Engle, Wiener, Bergstein & Fleischaker for bringing this decision to my attention.

Monday, January 20, 2020

Eastern District Federal Court Reviews Proper Procedure For Removal to Federal Court



In the case of Brown v. Teva Pharm., Inc., 19-3700 (E.D. Pa. Oct. 23, 2019 Bartle, J.), the court found that a Plaintiff correctly argued that, where the Defendants filed a Notice of Removal in federal court before being served with the Complaint, but filed a copy of the Notice of Removal in the state court after they were served, removal was not properly completed.

As such, the court granted the Plaintiff’s Motion to Remand.

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

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

Appellate Court Affirms Refusal by Trial Court to Issue Adverse Inference Instruction Regarding Allegedly Altered Medical Records in Med Mal Case


In the case of Cragle v. O’Brien, 2019 Pa. Super. 360 (Pa. Super. Dec. 20, 2019 Gantman, P.J.E., McLaughlin, J., and Ford Elliot, P.J.E.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court ruled that a medical malpractice Plaintiff was not entitled to an adverse inference instruction relative to the alleged destruction of medical records.  The judgment entered below in favor of the Defendants was affirmed.

The appellate court more specifically noted that it agreed with the trial court that the Plaintiff had failed to expressly request the standard jury instructions for alteration or destruction of medical records. The Superior Court additionally noted that the Plaintiff failed to ensure that a transcript of the charging conference was included in the certified record on appeal. 

The appellate court also appointed to the fact that the Plaintiff had failed to submit a proposed jury instruction for the applicable statute to the trial court below. 

Lastly, the appellate court reiterated that, in any event, the parties all agreed that the events described in the allegedly altered portion of the doctor’s office notes never happened. 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Jan. 7, 2020).

Friday, January 17, 2020

Issues of Fact Stall Decision on Whether Defendant Employer Protected by Worker's Compensation Immunity Provisions

Source:  Shutterstock

In the case of Ravier v. Gearhart, No. 6676-CV-2017 (C.P. Monroe Co. Nov. 1, 2019 Williamson, J.), the court denied a Motion for Judgment on the Pleadings filed by Additional Defendants in a personal injury action involving a workplace accident.

The Plaintiff filed suit against various Defendants who had joined certain Additional Defendants. The Additional Defendants filed a Motion for Judgment on the Pleadings asserting that they were immune from suit in this personal injury action under the Workers’ Compensation Act as the Plaintiff’s employer at the time of the accident.

The court denied the motion based upon their being issues of fact and uncertainty as to which entity was the Plaintiff’s employer at the time of her accident. The court noted that additional discovery was necessary before it could rule on the Additional Defendants’ claims of immunity.

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

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

Thursday, January 16, 2020

Superior Court Rules That Default Should Have Been Opened Where Defects in Service Noted


In the case of Digital Commc’n Warehouse, Inc. v. Allen Inv., LLC., 2019 Pa. Super. 341 (Pa. Super. Nov. 15, 2019) (Op. by Bender, J.), the Pennsylvania Superior Court ruled that a trial court was obligated to grant a Petition to Open a Default Judgment where the Defendant was found to have offered a valid dispute as to the validity of service of the Complaint. The court noted that improper service would negate the trial court’s jurisdiction over the Defendant.

This matter arose out of a contract dispute. A default judgment was entered when the Defendant did not respond to the Complaint or enter an appearance.

As noted, on appeal, the court accepted the argument that the entry of a default judgment was a nullity because the trial court lacked jurisdiction given that the Plaintiff allegedly failed to properly serve the underlying Complaint.

While the court noted that the Defendant was not entitled to have the judgment stricken under a procedural rationale, the Defendant was entitled to have the judgment opened on an equitable basis for the reasons noted.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Motion To Remand Denied; Joinder of Store Manager As Non-Diverse Defendant Was Not Frivolous


In the case of Badman v. Wal-Mart Stores, Inc., No. 19-4246(E.D. Pa. Nov. 6, 2019 McHugh, J.), the federal court granted a Motion to Remand the case back to state court.

The federal court rejected the claim by the Defendant that the Plaintiff fraudulently joined a non-diverse party in an effort to defeat diversity jurisdiction. Here, the Plaintiff sued the store manager in addition to Wal-Mart.  The store manager was a resident of Pennsylvania like the Plaintiff.

The court held that the store manager may be liable for injuries suffered by an invitee to the store that the manager helped to manage.  The court noted that, while such a claim against the store manager may be found to be weak or invalid, given the potential liability of the store manager under Pennsylvania law, it could not be said that the joinder of the store manager as a party Defendant was frivolous.   As such, a fraudulent joinder in the context of a removal of the case to federal court was not found.

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

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

Superior Court Affirms Dismissal of Case Due to Service of Process Issues

In the non-precedential case of Phillips v. Triple G Farms, Inc., No. 514 MDA 2019(Pa. Super. Oct. 22, 2019 Nichols, J., Dubow, J., Musmanno, J.) (Op. by Nichols, J.) (non-precedential), the court affirmed summary judgment in favor of the Defendant due to the Plaintiff’s failure to properly complete service of process. 

The court relied upon the line of cases following Lamp v. Heyman

According to the Opinion, the Plaintiff failed to serve the Defendant prior to the expiration of the statute of limitations. 

The court noted that Plaintiff’s counsel sent the Writ of Summons to the county Prothonotary for service but did not further affirmatively check on the status of service of the Writ for over six (6) months. The court found that this failure to ensure notice to the Defendant justified the dismissal of the case. 

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 Reed Smith law firm for bringing this case to my attention.

Tuesday, January 14, 2020

Corrected Link With Complete Copy of Judge Gelb's Decision in Sterba Case

Here is a corrected LINK to a copy of Luzerne County Judge Lesa Gelb's decision in Sterba v. North End Heritage Parking Co-Ops, LLC, No. 2017-074 (C.P. Luz. Co. Sept. 24, 2019 Gelb, J.), in which the court granted the Motion for Summary Judgment filed by North End Heritage Parking in a slip and fall case involving black ice in a parking lot.

The Tort Talk post came out in this case a couple of days ago but the copy of the Court's decision to which the Link was connected was missing a few pages.  The above Link should have all of the pages.  Sorry for any confusion in this regard.

Chronic Marijuana Use Found Relevant to Claim for Future Earnings But Not on Life Expectancy


In the case of Koch v. Musser, No. 17-613 (C.P. Lycoming Co. Sept. 1, 2019 Linhardt, J.), the court granted in part and denied in part a Plaintiff’s Motion In Limine to preclude a Defendant from offering any evidence of his chronic marijuana use in a civil litigation matter.

The court sustained the motion and precluded the evidence relative to the Plaintiff’s alleged use of marijuana on the date of the incident.

However, the court did find that the Plaintiff’s alleged chronic use of marijuana was relevant and admissible to the issues of his future earning capacity. The court noted that deposition testimony had established that the Plaintiff had lost employment and had difficulty obtaining and maintaining employment due to his chronic marijuana use. It is also noted that his chronic marijuana use could also bar him from certain future employment opportunities.

As such, the court found that the evidence of the Plaintiff’s marijuana use was sufficiently probative on the question of his future earnings so as to be admissible.

 However, the court held that it would exclude the evidence of the Plaintiff’s chronic marijuana use as a fact relevant to his future life expectancy unless expert medical testimony was provided in that regard.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 12, 2019).

Sayles Decision Limited to Pre-Suit Claims by Federal Court Case


In the case of Loughery v. Mid-Century Insurance Co., No. 19-383 (W.D. Pa. Dec 23, 2019 Dodge, Fed. Mag. J.),a Western District Federal Magistrate Judge addressed the issue of the proper procedure for an insurance company to compel compliance by a Plaintiff relative to attending a medical examination under a first party medical benefits claim when a first party benefits case was already in suit. 

Before the Court was a motion by the carrier, pursuant to Federal Rule of Civil Procedure 35, which is entitled “Physical and Mental Examinations,” to compel the Plaintiff to attend a medical exam.

The Plaintiff asserted that, under its recent decision in the case of Sayles v. Allstate Ins. Co., --- A.3d --- (Pa. Nov. 20, 2019), the Pennsylvania Supreme Court established the proper method for scheduling an exam under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) as requiring motions practice and the securing of a court order.

While the court agreed that the Sayles decision may apply to pre-suit requests for medical exams in the first party contest, once a first party lawsuit was filed in Federal Court, then F.R.C.P 35 was to be applied. 

Applying F.R.C.P. 35 to the case before it, the Loughery court found that there was good cause shown by the carrier for the exam.

Anyone wishing to review this decision by Western Federal Magistrate Judge Dodge may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Monday, January 13, 2020

Judge Williamson of Monroe County Rejects Request for Attorney's Fees in Trip and Fall Matter


In the case of Ezro v. Buck, LP, No. 5279-CV-2019 (C.P. Monroe Co. Oct. 25, 2019 Williamson, J.), the court denied a demurrer asserted by the Defendants in this negligence slip and fall case. However, the court did sustain Preliminary Objections regarding the existence of an agency relationship as well as with respect to the Plaintiff’s claim for attorney fees.

The court granted the Plaintiff leave to file an Amended Complaint to more specifically list Defendants under an agency relationship.

Judge David J. Williamson
Monroe County

Relative to the claim for attorney’s fees in this trip and fall matter, Judge David J. Williamson confirmed that the American Rule applied in Pennsylvania and generally holds that attorney’s fees are recoverable unless specifically provided by statute or by clear agreement of the parties. No such authorization for an attorney’s fee award was found in this case.

The court did otherwise note that the Plaintiff was entitled to pursue delay damages under Pa. R.C.P. 238(a)(1) and that a decision on the appropriateness of such damages would be reserved until after a verdict has been entered.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Judge Gelb of Luzerne County Enters Summary Judgment in Black Ice Slip and Fall Case

Black ice


In the case of Sterba v. North End Heritage Parking Co-Ops, LLC, No. 2017-074 (C.P. Luz. Co. Sept. 24, 2019 Gelb, J.), the court granted the Motion for Summary Judgment filed by North End Heritage Parking in a slip and fall case involving black ice in a parking lot.

According to the Opinion, snow squalls had occurred earlier in the day of the accident. By the time the Plaintiff got to the parking lot in question later than evening, her car did not skid or encounter any ice or snow. Additionally, the Plaintiff admitted that she did not see any ice or snow on the ground when she got out of her vehicle. 

After slipping and falling, the Plaintiff discovered a patch of black ice under her. She had to slide herself back two (2) arm lengths off of the icy area in order to be able to stand. 

The Plaintiff admitted that she did not know how long the patch of ice was on the parking lot surface before she fell. 

The record otherwise indicated that the snow that had fallen earlier in the day had been plowed and pushed against the back of the lot. 

The record also noted that the patches of black ice were concentrated towards drains in the back of the parking lot as melting snow from earlier in the day had moved towards the drains and the water had refroze. 

After reviewing the current status of Pennsylvania law regarding the duties owed by a possessor of land, the court held that, given that there was no evidence of the length of time in which the icy patches had existed prior to the Plaintiff’s fall, the Plaintiff could not sustain their burden of proof.
Judge Lesa Gelb
Luzerne County
In a footnote, Judge Gelb notably indicated that “[i]ce is more akin to a transitory spill than to a semi-permanent condition of land because it can develop suddenly and even melt in a short period of time depending on environmental conditions.” 

In light of this finding, the court stated that it was “inconsequential to the issue of constructive notice that Plaintiff saw the black ice immediately after her fall as no one saw the ice prior to the fall and the duration of its existence in the parking lot cannot be determined on this record.” See fn. 2. 

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

I send thanks to Attorney William P. Cech of the Wilkes-Barre, PA law offices of Robert T. Panowicz & Associates for bringing this case to my attention.

Summary Judgment Granted in Fall on Ice Case


In the case of Sanchez v. Snowshoe Condo. Ass’n, Inc., No. 9276-Civil-2015 (C.P. Monroe Co. Sept. 19, 2019 Williamson, J.), the court granted summary judgment in favor of a Defendant in a slip and fall case where the Plaintiff failed to establish how the icy condition was created or how the Defendant could have had actual or constructive knowledge of the condition.

According to the Opinion, the Plaintiff lived at a property located within the Defendant’s condominium association.

At approximately 6:00 a.m. on a December morning, the Plaintiff left her home to take her dog for a walk. When she returned to her unit approximately 15 minutes later, the Plaintiff slipped and fell on an icy spot on a bottom step leading into her unit.

Judge David J. Williamson
Monroe County

Judge Williamson cited to Pennsylvania law that confirmed that property owners were not required to keep the premises completely free of snow and ice at all times. Rather, under the hills and ridges doctrine, owners were not liable when there were generally slippery conditions and where the ice and/or snow had not yet accumulated into unreasonable ridges or elevations. Rather, the law only requires that a property owner act within a reasonable time, after notice, to remove snow and ice when it presents as a dangerous condition.

In this matter, both the Plaintiff and her daughter testified that they did not know when or how the ice had formed. The Plaintiff also admitted that she did not notice the ice the night before or even when she had left her home to begin to take a walk with her dogs. The court also noted that her fall occurred while it was still dark outside.

In the record before the court there were weather reports that showed that no precipitation had fallen on the date in question. The court found that, given the lack of precipitation, it was unclear how a Defendant landowner would have known about the alleged formation of any ice.

Judge Williamson stated that there was no other evidence to indicate that the icy condition had existed for such a long period of time that the Defendant knew about it or should have known about it. At most, it appeared that the condition may have existed for a few hours between the sunset and sunrise. The court held that this was not a reasonable time frame in which to expect a Defendant to locate and correct an allegedly icy condition.

Based upon the above, the court granted the Defendant’s Motion for Summary Judgment after finding that the Plaintiff had failed to establish a prima facie case of negligent in terms of how the alleged icy condition occurred or how the Defendant could have known about it.

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

Source: “Digest of Recent Opinions.” The Pennsylvania Law Weekly (Oct. 22, 2019).



Friday, January 10, 2020

PLEASE SAVE THE DATES TO VOLUNTEER FOR THE LACKAWANNA COUNTY MOCK TRIAL COMPETITION





Low But Reasonable Offer Does Not Amount to Bad Faith in UIM Context


In the case of Rau v. Allstate Fire & Cas. Ins. Co., No. 19-1078 (3d Cir. Nov. 27, 2019 Chagares, J., Jordan, J., Restrepo, J.), the Third Circuit Court of Appeals affirmed the entry of summary judgment in favor of the carrier on a bad faith in a case presided over by Federal Middle District Judge Robert D. Mariani at the trial court level. 

In this UIM case, the third party tortfeasor had paid $95,000.00 out of a $100,000.00 liability policy.

The UIM carrier initially made an offer of $10,000.00 to settle the UIM claim. The Plaintiff had demanded the full $200,000.00 UIM policy limits and filed suit when her demand was not met.

During the course of the matter, the carrier increased its offer to $50,000.00. 

The parties agreed to a high/low arbitration with the high parameter being the $200,000.00 policy limits and a low parameter being $10,000.00. The arbitrator found that the total claim was worth $306,345.00 and calculated the carrier’s responsibility under the UIM policy to be $160,786.78.
In its Opinion, the Third Circuit confirmed the rule of law that a “low but reasonable estimate of the insured’s losses” does not amount to per se bad faith. The court additionally noted the rule of law that alleged negligence or bad judgment on the part of a carrier will not support a bad faith claim.

Reviewing the record before it, the Third Circuit found that the trial court had properly found that, based upon the undisputed facts in the record, the carrier has a reasonable basis for contesting the insured’s UIM claim. More specifically, the record revealed that, a large portion of the Plaintiff’s evaluation of her claim was attributable to an alleged potential future surgery. 

It was also noted that an independent medical examination disputed the Plaintiff’s claim that she would need that future surgery.
Robert D. Mariani
M.D.Pa.
The record also showed that the Plaintiff had additional health coverage that would defray the cost of the alleged need for future surgery. It was also noted in the Opinion that the carrier believed that the Plaintiff was exaggerating her symptoms during her deposition that was completed in the underlying UIM litigation.

Viewing the record as a whole, the Court of Appeals agreed that the Plaintiff could not demonstrate the absence of a reasonable basis on the part of the carrier to deny the UIM benefits. As such, Judge Mariani's entry of summary judgment for the carrier was upheld.

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 for bringing this case to my attention. Please check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for continuing updates on important bad faith cases.

Unsettled Issues of State Law Pertaining to UIM Claim Leads Federal Court to Remand Case Back to State Court



In the case of Sherer v. Federated Mut. Ins. Co., No. 19-2530 (E.D. Pa. Oct. 22, 2019) (Mem. Op. by DuBois, J.), the court granted a Plaintiff’s Motion to Remand his UIM breach of contract action back to the state court.

This matter arose out of a motor vehicle accident. The Plaintiff secured the liability limits from the other driver and then sought UIM benefits under his employer’s policy

The UIM carrier denied coverage because the employer had allegedly properly waived UIM coverage.

The Plaintiff sued in state court asserting that the rejection of UIM protection by the employer failed to comply with Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL), that the denial of UIM benefits violated the MVFRL, and that the failure of the carrier or the employer to notify the Plaintiff of the waiver of coverage violated the MVFRL.

The Defendant removed the action to federal court and the Plaintiffs filed a Motion to Remand the case to state court.

The court found that the claims raised in this matter involved unsettled issues of state law that were peculiarly within the purview of the Pennsylvania state court system. As such, the court granted the Motion to Remand.

Anyone wishing to review a copy of this case may click this LINK.  The companion Order can be viewed HERE.


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

Thursday, January 9, 2020

ARTICLE: YEAR-END REVIEW: ANOTHER YEAR OF NOTABLE DECISIONS IN Pa.

This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission.  Images have been added here that were not in the original article.

My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.



Year-End Review: Another Year of Notable Decisions in Pa.

By Daniel E. Cummins | January 02, 2020 at 10:24 AM


Daniel E. Cummins
CUMMINS LAW
















A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.

Attorney Work Product Doctrine











In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine. 

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.

Premises Liability










Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing. 

In the case of Rosatti v. McKinney Properties, No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a defendant landowner under the Hills and Ridges Doctrine. 

According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.

In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and emphasized that, under the prevailing case law, “a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.” The court additionally noted that “a property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls. As such, summary judgment was granted.

In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and 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 a reasonable time after the storm ended. 

Service of Process
In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.
The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, the Pennsylvania Superior Court ruled that a trial court erred in dismissing the plaintiff’s personal injury action against a defendant motorist for improper service. 

The central issue in the matter involved the Plaintiff properly serving an out-of-state defendant by way of a certified letter, return receipt requested. According to the opinion, the green return receipt card was lost by the U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced was a scanned signature of the person who accepted the letter. There was also additional evidence presented that the defendant driver, who was a cousin of the plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.

Bad Faith

Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.

One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint. 

Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure. 

Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer. 

As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.

For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action

Judge A. Richard Caputo
M.D.Pa.
In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted. 






Fraternities

Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.

In Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed preliminary objections filed by Gettysburg College seeking the dismissal of a plaintiff’s personal injury claim arising out of allegations that the plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus. 

The court dismissed the plaintiff’s complaint against the college based upon the case of Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990), in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests. As such, under that case, a college was found not to have any duties in loco parentis with respect to its students. 

A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part. 

Judge Matthew W. Brann
M.D.Pa.
Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.

In this regard, Judge Matthew Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving defendants who were under the age of 21. Under the Kapres case, the Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol. The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

Products Liability

In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019), the Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the plaintiff only litigated the case under the consumer expectation test. 

The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.

Medical Malpractice

Typically, a medical malpractice action is governed by a two-year statute of limitation. However, there may be some cases where a plaintiff does not discover an injury that is allegedly the result of medical negligence within that two-year period. Under the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.

In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2018), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE’s statute of repose was unconstitutional.

The rationale of the majority opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution’s guarantee of open access to the courts.

Medical Marijuana

With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.

In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no employer may discharge … or otherwise discriminate or retaliate against an employee … solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers due to the employee’s prescribed use of medical marijuana while not working in her place of employment.

The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that had violated the MMA. As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon Section 2103(b)(1).

It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.

Looking Ahead












The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.

Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.



Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters.  He also provides mediation services through Cummins Mediation Services.