Friday, May 22, 2020

A Vote for Tort Talk?

The Pennsylvania Law Weekly has opened up the voting for its "Best of 2020" poll.  

Hoping you might please consider voting for the "Tort Talk Blog" as a write-in vote under question No. 57 for one of the top Online Research Service platforms in Pennsylvania.

Here is the LINK to the Poll.

Thanks very much.

The Long Arm of the Law Hales NY Attorney Into Court in Pennsylvania

In the legal malpractice case of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.), the court addressed issues pertaining to jurisdiction over a non-resident under the long-arm statute and based upon minimum contacts by the Defendant attorney in Pennsylvania. 

According to the Opinion, the New York attorney was representing the Plaintiff in a personal injury matter arising out of an incident that occurred in Pennsylvania. 

The attorney allegedly initially represented the Plaintiff and pursued the claim but then allegedly advised the Plaintiff that he was terminating his representation. According to the Plaintiff, the New York attorney allegedly mistakenly advised her on the applicable statute of limitation and, as a result, the Plaintiff was barred from pursuing her claim.

The Plaintiff filed this legal malpractice suit. The Defendant responded with Preliminary Objections to the Complaint, arguing, in part, that the court could not execute jurisdiction over the New York attorney or his firm because the Defendant did not have sufficient minimum contacts with Pennsylvania. 

While the court noted that the Defendants had demonstrated that there had been no continuous and systematic business contacts by the firm within Pennsylvania, the court still found that the Defendants availed themselves to the foreign state and established minimum contact to support in personam jurisdiction by undertaking the representation of a client who had been injured in Pennsylvania. As such, the Defendant’s Preliminary Objections were overruled. 

Anyone wishing to review this decision may click this LINK.   

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 12, 2020).

Motion to Dismiss Granted in Products Case Based on Jurisdictional Issues

In the case of Winters v. Akzo Nobel Surface Chemistry, LLC, No. 19-5398 (E.D. Pa. April 27, 2020 Schmehl, J.), the court granted a Motion to Dismiss filed by a product manufacturer on the basis that the manufacturer was not subject to personal jurisdiction in Pennsylvania. 

In its decision, the court ruled that the Plaintiff could not rely upon a stream of commerce argument as a basis for specific jurisdiction.

The court also noted that the Plaintiff’s efforts to establish jurisdiction under Pennsylvania long-arm statute did not prevail. 

The court also held that jurisdiction may not be based upon a Defendant entering into contracts with Pennsylvania companies, since third party contacts are not relevant to the issue of personal jurisdiction. 

The court additionally held that an unrelated office of the Defendant located in Pennsylvania did not suffice to serve as a relevant contact. 

The court granted the Motion to Dismiss and severed the action against the product manufacturer and transferred that part of the case to Delaware, where that manufacturer was incorporated. 

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

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

Jurisdiction by Consent Concept Upheld in Two Recent Federal Court Cases

In two (2) recent Federal Pennsylvania District Court Decisions, separate courts held that the Third Circuit’s decision in the Bane case, recognizing general jurisdiction by consent, conferred by virtue of a foreign corporation’s securing a registration to do business in Pennsylvania, remains binding. 

This rule of law was relied upon in the case of Smith v. NMC Wollard, Inc., No. 19-5101 (E.D. Pa. April 24, 2020) as well as in the case of Replica Auto Body Panels & Auto Sales, Inc. v. InTech Trailers, Inc., No. 4:19-CV-02018 (M.D. Pa. April 16, 2020 Brann, J.). 

Anyone wishing to review a copy of the Smith decision may click this LINK  and this LINK for the companion Order.  

The Replica Auto decision can be read at this LINK and the companion Order at this LINK

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

Thursday, May 21, 2020

When Is A Statement in a Pleading a Judicial Admission? (Non-Precedential)

In the case of Huchko v. Blouent International, No. 1281 WDA 2019 (Pa. Super. March 13, 2020 Pellegrini, J., Bowes, J., and Bender, P.J.E.) (Op. by Pellegrini, J.) (Non-Precedential), the court reviewed the proper analysis to determine whether an allegation in a Complaint may be determined to date a judicial admission by a Plaintiff.

According to the Opinion, the Plaintiff sued the Defendants for alleged faulty maintenance of a tractor’s brake system. The jury entered a verdict in favor of the Plaintiff.

On appeal, one of the Defendants argued that the trial court had erred in denying the Defendant’s Motion In Limine to preclude the Plaintiff from testifying at trial in contradiction to an allegation in the Plaintiff’s Complaint.

The Defendant asserted that in a paragraph of the Plaintiff’s Complaint, the Plaintiff had asserted that he had been run over while trying to stop a moving tractor, but that, it was anticipated that, at trial, the Plaintiff would testify instead that the tractor was stationary when he tried to climb into it after which it then began to roll down a slope and then ran him over.

The defense asserted that the allegation in the Plaintiff’s Complaint constituted a judicial admission that was binding on the Plaintiff’s trial testimony.

On appeal, the Superior Court affirmed the trial court finding that the allegations at issue in the Plaintiff’s Complaint did not amount to a judicial admission.

The rationale of the court was that a key element of a judicial admission was that the fact to be admitted must be admitted for the advantage of the admitting party.

In this case, the Superior Court agreed with the trial court that the interpretation of this allegation in the Complaint as advanced by the defense, i.e., that the Plaintiff tried to get on to the tractor while it was moving, was not advantageous at all to the Plaintiff. The Superior Court agreed with the trial court that, since this allegation was not advantageous to the Plaintiff, the trial court had properly found that it could not constitute a judicial admission that precluded the Plaintiff testifying at trial regarding how he sustained his injuries.

The Superior Court also noted that the allegations contained in the Complaint also did not amount to a “clear and unequivocal admission of fact” as required by past precedent to allow for a statement in a pleading to serve as an admission of fact.

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

Source: Article “Finding Plaintiff’s Testimony Didn’t Contradict Complaint, Superior Court Affirms $2.2 M verdict,” by Zack Needles of the Pennsylvania Law Weekly (April 16, 2020).

Wednesday, May 20, 2020

Eastern District Federal Court Judge Allows Bad Faith Claim To Proceed Based Upon Carrier's Reliance Upon Household Exclusion

In the case of Smith v. AAA Interinsurance Exchange of the Automobile Club, No. 20-768 (E.D. Pa. May 6, 2020 Moore Wells, M.J.), a Federal District Court Magistrate Judge denied a Motion to Dismiss a Breach of Contract and Bad Faith Claim arising out of UIM matter. 

According to the Opinion, the carrier's denial of the claim was based solely upon the policy’s household exclusion. It was noted that, months before this issue came before this court, the Pennsylvania Supreme Court had generally eradicated the household exclusion’s application under Pennsylvania law under similar circumstances at issue in the case of Gallagher v. Geico

The court denied the Motion to Dismiss after finding, in part, that the carrier was fully on notice that the household exclusion was invalid under Pennsylvania under the circumstances presented. The court also noted that the record indicated that the insured’s counsel has brought the issue of the eradication of the household exclusion to the carrier’s attention when the claim before the coverage decision was made. 

The Federal District Magistrate Judge rejected the carrier’s argument that the Gallagher decision only applied to the unique facts at issue in the Gallagher case. 

The court otherwise found that the Complaint contained sufficient facts to support an allegation that the carrier did not engage in reasonable investigation efforts prior to denying the coverage. In this regard, the court noted that the carrier had denied the claim eleven (11) days after it was presented and had not otherwise produced any contrary medical documents or required a medical examination. 

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

I send thanks to Attorney Lee Applebaum for bringing this case to my attention through his excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Pennsylvania Western Federal District Court Punts Covid-19 Related Business Interruption Insurance Coverage Question Back to State Court

A Western Federal District Court rejected an effort by a carrier to remove a Covid-19 Business Interruption Insurance coverage case in the matter of Danoia's Eatery, LLC v. Motorists Mutual Ins. Co., No. 20-706 (W.D. Pa. May 19, 2020 Fischer, S.J.),

The Plaintiff's Declaratory Judgment Complaint sought a declaration that the carrier was required to provide insurance coverage for business interruption losses brought on by the mandated government closures due to the Covid-19 pandemic.

Notably, the Court issued the Order to remand the case sua sponte even before the Plaintiff filed any Motion to Remand after the carrier had filed its Notice of Removal.

The court went through the standard of review under 28 U.S.C. Section 1447(c) and emphasized that the federal courts are courts of limited jurisdiction.

The Court noted that it had questions as to whether there was complete diversity between the parties to enable the Court to exercise subject matter jurisdiction over the case.

Significantly, the Western Federal District Court also noted that, even if there was diversity, the Court would still choose to exercise its discretion under the Declaratory Judgment Act not to exercise jurisdiction over the Covid-19 business interruption coverage question presented due to the fact that Pennsylvania state law on the issue was unsettled.

The Court held that the "Plaintiff's Complaint raises novel insurance coverage issues under Pennsylvania law which are best reserved for the state court to resolve in the first instance."  See Op. at p. 5.

Anyone wishing to review this case may click this LINK.

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

Tuesday, May 19, 2020

Western Federal District Court Narrows Application of Gallagher v. Geico To Its Facts

Light at the end of the Tunnel

A Federal Western District Court Judge has joined those judges who have breathed life into the Household Exclusion by limiting the Gallagher v. Geico decision to its facts and rejecting a reading that the Pennsylvania Supreme Court's decision eradicates the exclusion across the board.

In the case of Dunleavy v. Mid-Century Ins. Co., No. 2:19-CV-1304 (W.D. Pa. May 19, 2020 Ranjan, J.), Judge Ranjan of the Pennsylvania Western Federal District Court held that the Pennsylvania Supreme Court’s decision in Gallagher v GEICO, in which that court ruled that the household exclusion was no longer valid, did not apply to invalidate a household exclusion in this case where the insured had waived UIM coverage on a motorcycle insured with another carrier. 

The Court in Dunleavy therefore ruled that the claimants were not entitled to stacked UIM coverage from their automobile insurer because there was no coverage on the motorcycle with which to stack. In other words, the claimants had waived stacking on the motorcycle policy, which had been issued by a different carrier.

In its decision, the Court also held that, because the Plaintiff’s claims failed with respect to the household exclusion issue, the Plaintiff’s claims for bad faith and under the Unfair Trade Practices and Consumer Protection Law also failed.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Patricia A. Monahan of the Pittsburgh office of the Marshall Dennehey law firm for bringing this case to my attention.

Monday, May 18, 2020

Jury Trial By Zoom Takes Place in Texas -- More to Come?

Here's a LINK to a news article by Nate Raymond entitled "Texas Tries a Pandemic First:  A Jury Trial by Zoom" which was posted on telling the story of what may have been the first jury trial in America by Zoom.  The summary trial, which was non-binding, involved an insurance dispute and took place in Texas.

The article also notes that other jurisdictions in America are moving towards allowing for jury selection to take place remotely if that procedure is agreed to by the parties.

Here's a LINK to another article on the same case providing more interesting details on the proceedings.  That article, entitled "Juror Walks Off to Take a Phone Call as Texas Tests First Jury Trial Via Zoom," appeared on and was written by Angela Morris

Is this the wave of the future?

Judge Williamson of Monroe County Addresses Gist of the Action Doctrine

In the case of Artisan and Truckers Cas. Co. v. Travelcenters of America, Inc., No. 9778-CV-2019 (C.P. Monroe Co. Feb. 26, 2020 Williamson, J.), the court overruled a Defendant’s Preliminary Objections based, in part, on the gist the action doctrine.

According to the Opinion, the Plaintiff insurance company had issued a policy to a trucking company who owned a tractor trailer. The tractor trailer had been taken for repairs at a station owned by the Defendant. Later on the same day that the repairs were completed, the truck caught fire.

An allegation was made that the repair facility made improper repairs that caused the fire. In this insurance subrogation action, the Plaintiff insurance company asserted that it was required to pay its insured $200,000.00 under the policy. The carrier filed a Complaint against the Defendant repair facility asserting claims of negligence, breach of contract, breach of express and/or implied warranties, and other claims.

The Defendant filed Preliminary Objections asserting that the negligence count violated the gist of the action doctrine.

Judge David J. Williamson
Monroe County
Judge Williamson noted that the gist of the action doctrine prevents a Plaintiff from bringing an action for a negligence when the allegations state that the breached duty arose from a contractual relationship. The doctrine prevents Plaintiffs from filing a separate negligence claim arising solely from the contract between the parties, where the duties allegedly breached were created in the contract itself, where liability stems from a contract, or where the tort claim essentially duplicates the breach of contract claim.

After reviewing the record before him, Judge Williamson overruled the Defendant’s Preliminary Objections after finding that the alleged breach of duty went beyond the strict requirements of the gist of the action doctrine. The court noted that, despite there being numerous decisions analyzing the doctrine, “there is no clear cut standard for determining when an action falls” within the doctrine.

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

I send thanks to Attorney Dale G. Larrimore from the Philadelphia law firm of Larrimore & Farnish, LLP, for bringing this case to my attention.

Friday, May 15, 2020

UIM Bad Faith Complaint Survives Motion to Dismiss

A Plaintiff in a UIM bad faith case was found to have met the federal pleading requirements to survive a Motion to Dismiss in the case of Lowndes v. Travelers Property Cas. Co. of America, No. 19-5823 (E.D. Pa. April 17, 2020 Jones, II, J.).

In this matter, the UIM Plaintiffs alleged that the injured insured suffered serious injuries requiring ongoing treatment. The third party tortfeasor’s carrier had paid $250,000.00. The insureds were seeking the full $1 million dollar UIM coverage limit from the UIM carrier.

According to the Opinion, the UIM carrier’s highest offer was $200,000.00, which offer was made nearly three (3) years after the original claim.

The insureds filed suit and asserted a breach of contract and bad faith claims.

The Complaint asserted that the Plaintiffs had cooperated with the carrier and provided information over a thirty-two (32) month period. The Plaintiffs alleged that they had provided detailed information from which the carrier could have fairly evaluated the information and made a timely and reasonable offer on the claim.

The Plaintiffs alleged that they estimated their claim to be in excess of $1 million dollars based upon the Plaintiff’s alleged unchallenged medical records, narrative reports, vocational loss, and medical prognosis reports, all of which had been provided to the Defendant carrier. The Plaintiffs alleged that the carrier had failed to timely respond or comply with the Plaintiffs’ attorney’s request for the carrier to fairly evaluate the UIM claim.

The Plaintiffs also specifically alleged in their Complaint that the carrier “did not have a reasonable basis for delaying and/or denying underinsured motorist benefits or a partial tender of such under the policy” for nearly three (3) years. In the Complaint, the Plaintiffs characterized the carrier’s refusal to pay as frivolous and unfounded and also pled that the carrier “lacked a legal and factual basis” for its evaluation of the case presented.

The carrier moved to dismiss the claim of bad faith due to the Plaintiffs’ alleged failure to adequately plead the same.

The court reiterated the rule that, while a delay may be evidence of bad Faith, standing alone, a delay does not make out an automatic case for bad faith.

The court noted that, in evaluating whether a delay might constitute bad faith, “‘[t]he primary consideration is the degree to which a Defendant insurer knew it had no basis to deny the Claimant: if delays attributable to the need to investigate further or even to simple negligence, no bad faith has occurred.’” [emphasis in Opinion].

The court, in its Opinion recognized the potential negative impact of an alleged thirty two (32) month delay between the submission of the claim by the Plaintiff and the carrier’s offer. However, the court noted that, standing alone, this delay could not prove bad faith. However, the court found that there are additional factual allegations in the Complaint to support the bad faith delay argument.

With regards to the allegations of bad faith conduct on the part of the carrier, the court pointed out that the carrier had not sought an independent medical examination or a records review within the thirty two (32) month period as part of the effort to properly evaluate the claim presented. It was also noted that the Plaintiffs had argued that the carrier’s Motion to Dismiss did not include any argument that the “delay was attributable to the need to investigate the further or even to simple negligence.”

Based upon the entire record before him, Judge Jones II of the Eastern District found that the Plaintiff had set forth a plausible bad faith claim that focused on an alleged lack of investigation and failure to communicate on the part of the carrier. The court also noted that it was wholly plausible that the carrier did not have a reasonable basis for denying the Plaintiffs’ claims based upon the information that was provided to the carrier by the Plaintiff.

The court additionally stated that, “viewing the time lapse in conjunction with the lack of an independent medical evaluation by Defendant, it is plausible that Defendant knew of, or recklessly disregarded, its lack of a reasonable basis for denying Plaintiffs’ benefits of the policy.”

In the end, the court also disagreed with the defense argument that the matter before him was merely a disagreement over a fair evaluation of the case presented. Rather, the court found that, under the standard of review which required the court to assume the truth of the Plaintiffs’ factual allegations, the allegations were found to have set out a plausible Complaint that the carrier had made an unreasonably low offer, or no offer, which potentially constituted bad faith conduct under Pennsylvania 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 firm 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.   

Motion To Consolidate Two Separate Post-Koken Cases Denied in Lackawanna County

In the case of Pikula v. Ciabocchi, No. 18-CV-1753 (C.P. Lacka. Co. May 11, 2020 Nealon, J.), the court denied a motion by a tortfeasor Defendant to consolidate, for trial, two (2) separate post-Koken matters arising out of the same motor vehicle accident. 

According to the Opinion, the case involved a Plaintiff-driver and a Plaintiff-passenger, who were located in the same vehicle during the course of a rear-end accident. These Plaintiffs filed separate personal injury lawsuits. 

The Plaintiff-passenger filed suit against the tortfeasor Defendant as well as her own UIM carrier. 

The Plaintiff-driver, however, only sued the tortfeasor and did not present any UIM claim to date. 

The court also noted that, during the course of discovery, the tortfeasor Defendant had admitted liability for causing the accident. 

It was also noted that the Plaintiff-passenger had certified her case for trial but that the Plaintiff-driver had not yet had her separte case under a separate docket number certified as ready for trial. 

After the Plaintiff-passenger had filed a Certificate of Readiness for Trial, the tortfeasor Defendant filed a motion requesting the consolidation of both cases for a joint trial pursuant to Pa. R.C.P. 213(a).  
In his Opinion, Judge Nealon noted that, generally speaking, cases may be consolidated for trial under Rule 213(a) if they involve a common question of law or fact or arise from the same transaction or occurrence. 

The court ruled that, since the tortfeasor had admitted liability, these two (2) car accident lawsuits “no longer present any common question or law or fact and instead involve individual injuries, different items of damages, and distinct supporting evidence.” 

The court also noted that the tortfeasor’s acceptance of liability also eliminates the prospect of inconsistent verdicts regarding liability. 

The court additionally noted that, the Plaintiff-passenger’s case was scheduled for trial to take place in less than four (4) months, while the Plaintiff driver’s lawsuit has not yet been certified for trial. 

For these reasons, the court found that the consolidation of these matters for a joint trial is not warranted and the Motion to Consolidate these post-Koken actions for trial was denied. 

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

Thursday, May 14, 2020

Standards for Sealing Judicial Record Reviewed

In the case of Moses Taylor Foundation v. Coverys, No. 19-CV-7423 (C.P. Lacka. Co. May 8, 2020 Nealon, J.), the court addressed a Plaintiff’s request to seal an insurer bad faith liability case. 

The Plaintiffs in this matter are a hospital and its self-insurance trust. The Plaintiff filed a breach of contract and bad faith liability case against the hospital’s excess liability carrier and its underwriter. The Plaintiff hospital and its self-insurance trust assert bad faith conduct on the part of the Defendant carriers in refusing to resolve a malpractice case pursuant at the request of the hospital and the trust which allegedly caused the avoidable depletion of the excess coverage funds, thereby resulting in less aggregate excess coverage being available for the hospital to cover other malpractice cases against it. 

With respect to this particular motion before the court, the hospital and the trust were seeking to seal its Complaint and the entire record in this litigation on the basis that such a sealing of the record was necessary to preserve the confidentiality of its settlement negotiations, evaluation methods, and payments in the medical malpractice case as well as other issues. 

The Defendant carriers opposed the motion by arguing that the hospital and trust had not identified a clearly defined serious injury that any of the parties will suffer from public access to the record in this litigation. The Defendants described the matter as nothing more than a run-of-the-mill action alleging a breach of contract and bad faith conduct on the part of a carrier, which does to warrant the sealing of a record. 

Overall, the court noted that, in order to warrant the closure of an entire judicial record, a moving party must establish that their interest in secrecy outweighs the longstanding common law presumption in favor of public access to the records of the taxpayer-subsidized judicial system. 

The court noted that many of the topics that the Plaintiff wanted protected from public disclosure were already matters of public record in the underlying malpractice action. It was also noted that the settlement discussions, evaluation methods, and claims handling practices that the hospital and trust were attempting to have remain confidential are the types of information that are routinely disclosed in courts of law involving bad faith claims against insurance companies. 

In the end, the court found that the secrecy interests cited by the hospital and the trust do not supersede the presumption in favor of open access to the judicial records so as to justify a court-sanctioned closure of the record.

As such, the Motion to Seal the Records in the case was denied. 

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

Wednesday, May 13, 2020

An Example of Statements Made By Counsel At Trial That Could Result in a Mistrial (Non-Precedential)

In the case of Steltz v. Meyers, No. 179 EDA 2019(Pa. Super. April 14, 2020 Ford Elliot, P.J.E., Olson, J., and Bowes, J.) (Op. by Ford Elliot, P.J.E.) (Bowes, dissenting)(Non-Precedential, the court affirmed the trial court’s granting of Post-Trial Motions following a verdict in favor of the defense.

The appellate court agreed with the trial court that the misconduct of defense counsel in asking a question at trial that implied facts not in evidence was so serious that a mistrial was properly granted.

More specifically, defense counsel had questioned the Plaintiff at trial as to whether the Plaintiff was unable to find any medical provider in a relevant field that could testify in support of the Plaintiff’s case.  The court noted that such a witness did in fact exist but was not called to testify at trial.

The appellate court reiterated the rule that statements by counsel, not based on evidence, which tend to influence the jury in resolving issues before them solely by an appeal to passion and prejudice was not proper.

The court also noted that no curative jury instruction from the court could have adequately dispelled the prejudice caused by defense counsel.

As such, the granting of a mistrial was upheld.

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

Judge Bowes Dissenting Opinion can be viewed HERE.

Tuesday, May 12, 2020


Bring Your Cases to a Close

I recently was successful in assisting parties to settle an automobile accident personal injury matter through Cummins Mediation Services by way of a mediation conducted entirely online via Google Meet.

As we all wait for the courts to reopen, I invite you to please consider attempting to bring your cases to a close through Cummins Mediation Services.

With trial dates likely to be pushed back to a distant future, new trial dates to be given 12+ months into the future, and with carriers currently looking to move their files sooner rather than later, the time is ripe to get cases resolved.  

Who better to get carriers to listen than an insurance defense attorney as the mediator?  

Who better for defense and plaintiffs attorneys to trust as a mediator than an attorney who has treated them and their clients fairly over the years?

The calendar is filling up quickly but dates for mediation remain.  Please email or call now to reserve your date to work with Cummins Mediation Services to try to bring your case to a close.

I pledge to push and to pull in order to get both parties to the number that works to resolve the case.

Resume and Fee Schedule available upon request.  Please contact me at or at 570-319-5899.

Daniel E. Cummins, Esq.


Monday, May 11, 2020

Remedy Crafted to Address Med Mal Discovery Disputes

In the case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. April 17, 2020 Nealon, J.), the court addressed a Motion to Compel filed by a Plaintiff in a medical malpractice action along with a Motion for a Protective Order by the defense.

The Plaintiff filed a motion seeking to compel discovery and a deposition of a non-party pathologist. The Plaintiff also presented the defense with sixty (60) pages of a Request for Admissions that the Plaintiff first served almost two (2) months after the discovery deadline.

According to the Opinion, these motions were filed in a malpractice case which was scheduled for trial and in which the discovery deadline had expired approximately 3 ½ months before the issue arose.

The court split the baby in its decision and crafted a remedy to address the discovery dispute.  The court noted that, since the Plaintiff had repeatedly requested the production of her pathology slides and attempted to schedule the pathologist’s deposition on several occasions prior to the expiration of the discovery deadline, the Plaintiff’s motion would be granted with respect to those matters. The court did place some limitations on the parameters of the deposition that was allowed.  The court noted that, in the event that the pathologist is substantially involved in responding to the COVID-19 public health emergency, the deposition could be delayed. In all other respects, the Plaintiff’s Motion to Compel was denied.

The court also granted the Defendant hospital’s Motion for a Protective Order with respect to the Request for Admissions served by the Plaintiff given that those requests were untimely and unduly burdensome.

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

Pennsylvania Superior Court Addresses Admissibility of Expert Testimony At Trial

In the case of Rolon v. Davies, No. 2046 MDA 2018 (Pa. Super. April 28, 2020 Stabile, J., McLaughlin, J., and Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided guidance on their required elements for expert testimony to be admissible in a medical malpractice case.

In its decision, the Pennsylvania Superior reserved a trial court’s grant of a nonsuit in favor of a Defendant surgeon in a negligence case filed under allegations that one of his patients had died of a pulmonary embolism following surgery.

At the trial court level, the Defendants moved for a nonsuit under a claim that the Plaintiff’s expert did not offer his opinion to as reasonable degree of medical certain consistent with Pennsylvania law regarding the Defendant’s alleged negligence. The trial court judge granted that particular Defendant’s motion for a nonsuit and the jury eventually returned a defense verdict in favor of the other Defendants. The Plaintiff appealed asserting, in part, that the trial court judge erred in granting the nonsuit regarding the expert at issue.

The Superior Court reversed the trial court’s entry of a nonsuit after finding that the record confirmed that the Plaintiff’s medical expert stated he was certain of his opinion.  The Superior Court also noted that the Plaintiff’s medical expert also provided a thorough explanation as to how he arrived at his opinion given the evidence before him.

In its Opinion, the Superior Court provided a nice review of the requirements to allow expert testimony into evidence. The court reiterated the rule that an expert need not use the 'magic words' "to a reasonable degree of medical certainty” for her or his testimony to be admissible.   Rather, the Superior Court panel noted that, if the remainder of the expert’s opinion confirms that the expert expressed his opinion with reasonable certainty, then the opinion should be allowed into evidence as supportive of the case presented by that party offering the expert.

The court noted that an “expert fails this standard of certainty if [he] or [she] testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” See Op. at 5 [citation omitted] [bracket inserted here].

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

Source: “Article – “Court Calls for New Med Mal Trial, Reversing Ruling That Expert Testimony Was Insufficient.” By P.J. D’Annunzio Pennsylvania Law Weekly (April 30, 2020).

Friday, May 8, 2020

Various Claims in Dog Bite Case Allowed to Run Free

In the case of O’Mara-Conley v. Boudaher, No. CV-2019-11232 (C.P. North. Co. March 24, 2020 Morganelli, J.), the court overruled in part and sustained in part the Defendant’s Preliminary Objections filed in a dog bite case.

More specifically, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s claims for punitive damages but sustained the Defendant’s Preliminary Objections with respect to the Plaintiff’s claim of negligence per se based upon the Lease Law, 3 P.S§459-305.

However, the court also overruled the Defendant’s Preliminary Objections with respect to the Plaintiffs’ claim of negligence per se with respect to “The Dangerous Dog Law,” 3 P.S. §459-502A.

The court also overruled the Defendants’ Preliminary Objections to the Plaintiff’s claim for medical expenses/strict liability.

According to the Opinion, the minor Plaintiff was attacked by the Defendant’s pit bull or pit bull mix. 

On the issue of punitive damages, the Plaintiff relied upon claims that the Defendants harbored a dangerous dog and, therefore, violated the Dangerous Dog Law.

The Plaintiff additionally alleged indifference, along with allegations of willful, and/or reckless intentional conduct on the part of the Defendants.

In allowing the punitive damages claims to proceed based upon the allegations of willfulness, wantonness, or recklessness, this court fell in line with those other trial courts that have followed the Pennsylvania Superior Court case of Archbald v. Kimble, 971 A.2d 513, 519 (Pa. Super. 2009) appeal denied 989 A.2d 914 (Pa. 2010) in which that court held that, under Rule 1019(b) “[a]n example of a condition of the mind that may be averred generally is ‘wanton conduct’ and that [b]ecause recklessness is also known as ‘wanton and willful misconduct,’ ‘recklessness’ is a condition of the mind that may be averred generally.”

In addition to finding that the Plaintiff’s Complaint generally averred the necessary conditions of the mind required for an award of punitive damages, the court also pointed to the alleged facts that the Defendants owned a large pit but/pit bull mix dog with an unknown temperament, that the dog had previously bitten another child, and that the dog routinely jumped at/on visitors to the Defendant’s property, all of which the Defendants were allegedly aware of.

The court noted that, accepting all of the allegations of the Plaintiff as set forth in the Complaint as required by the standard of review, the court could not conclude that it was free and clear from any doubt that the Plaintiff would be unable to prove their case for punitive damages. As such, this claim was allowed to proceed.

The court’s Opinion is also notable for its other analysis of the Lease Law in dog bite cases.

The court also notably allowed a claim for strict liability for medical expenses to proceed, which claim was based upon Article V-Offenses of Dogs, 3 P.S. §459-502(B). Under that section, it is provided that any cost to a victim for medical treatment resulted from a dog bite must be paid fully by the owner or keeper of the dog.

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

I send thanks to Attorney Neil O’Donnell of the Kingston, PA law firm of O’Donnell Law Offices for bringing this case to my attention.

Thursday, May 7, 2020

Judge Nealon Reiterates the Law of Identifying Agents of Hospital in Med Mal Complaints

In the case of Champi v. Geisinger Community Medical Center, No. 19-CV-1780(C.P. Lacka. Co. Feb. 20, 2020 Nealon, J.), the court denied Preliminary Objections filed by a Defendant hospital in this medical malpractice action.

The Defendants were arguing that, where the Plaintiff alleged negligent care at the Defendant hospital’s Scranton and Wilkes-Barre campuses but neglected to identify by name and with specificity which alleged agents who worked at the hospital were negligent, the Defendant was entitled to a dismissal.

This argument was rejected by the court under recent Pennsylvania Superior Court precedent in which it was held that a Plaintiff asserting a vicarious liability claim need not allege the identity of the agents by name.

As such, the court overruled the Defendant’s Preliminary Objections and directed the hospital to seek the requested information by way of pre-trial discovery efforts.

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

Tuesday, May 5, 2020

Judgment Non Pros Denied But Court Lights A Fire Under Them With A Discovery Deadlines Order

In the case of Fisher v. Correctional Care, Inc., No. 14-CV-4778 (C.P. Lacka. Co. April 20, 2020 Nealon, J.), the court denied a Defendant’s Petition for the Entry of a Judgment Non Pros for failure to pursue this civil litigation matter with reasonable promptitude.

The court noted that this matter arose out of a claim by a license practical nurse against a healthcare provider to the Lackawanna County Prison for allegations pertaining to a hostile work environment and other claims.

The Defendant employer filed a Petition for Judgment Non Pros asserting a lack of prosecution of the claim as reflected by the lack of docket activity over a two (2) year period dating from January of 2018 through January of 2020.

Judge Nealon reviewed the applicable law and noted that, to secure a judgment of non pros for failure to prosecute a civil litigation matter, the moving party must establish that (1) the Plaintiff has shown a want of due diligence by failing to proceed with reasonable promptness, (2) that there is no compelling reason for the delay, and three (3) that the delay has caused actual prejudice to the Defendant.

The court further noted that prejudice in this context consist of any substantial diminution of a party’s ability to properly present its case at trial, such as the death or absence of another material witness or the destruction or loss of relevant evidence.

While the court agreed that the Defendant had demonstrated that the Plaintiff had neglected to diligently prosecute this action without compelling reason for having failed to do so, the Defendant had not identified the actual prejudice that the Defendant had suffered as a result. As such, the petition was denied under the standard of review required.

Judge Nealon took an additional step and noted that, although the Petition was denied, given that it had been 5 ½ years since the case was instituted, and given that the Defendant was entitled to have this action timely concluded, the court was laying down deadlines for the completion of discovery, exchange of expert reports, and the filing of any dispositive motions and a Certificate of Readiness. The court issued these deadlines on a sua sponte basis.

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

Monday, May 4, 2020


Tort Talk is 11 years old today.  It was on May 4, 2009 that I wrote the first Tort Talk blog post.

Over 2,800 posts later and 2,551,033 views later, Tort Talk is still going strong thanks to your support and readership for which I am grateful.