Tuesday, December 15, 2020

ARTICLE: Shutdown Makes for a Quiet year in Civil Litigation

Here is a copy of my December 10, 2020 Year-End review article published in The Pennsylvania Law Weekly on civil litigation developments in Pennsylvania over the past year.  It is republished here with permission.

My Year-End article on developments in Motor Vehicle Accident Law is forthcoming.

Shutdown Makes for a Quiet Year in Civil Litigation

By Daniel E. Cummins | December 10, 2020

  Daniel E. Cummins of Cummins Law.

While 2020 was a year in a pandemic and political upheaval, things were relatively calm in terms of any notable civil litigation decisions. The biggest news of the year was that courts were not conducting trials which gave judges more time to issue notable decisions, some of which are outlined below.
COVID-19 Stops Civil Litigation Trials

In 2020, the rise of COVID-19 pandemic shut down the court system in March. Generally speaking, the courts were almost entirely shut down for two months before gradually opening over the summer with virtual online proceedings. Then by September, the courts began to hold trials again in courtrooms outfitted with plexiglass and jurors spread out between the jury box and the gallery in an effort to maintain social distancing. It remains to be seen how the COVID-19 pandemic will influence jury awards.

Stay of Civil Litigation Matters Pending Result of Criminal Case

In a case of first impression handed down in March in the matter of Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020), the Pennsylvania Superior Court confirmed the standards that a trial court judge must consider with respect to a request by a defendant to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test previously established by the federal courts in the case of In re Adelphia Communications, No. 02-1781, (E.D. Pa. 2003), for determining whether to stay a civil case pending resolution of a related criminal matter.

Going forward, under Keesee, the six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case included the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests.

What Happens in Pennsylvania, Stays in Pennsylvania

One of the most active areas of Pennsylvania law over the past year was on the issue of personal jurisdiction in Pennsylvania over foreign defendants.

Just recently, the judicially activist Pennsylvania Supreme Court advanced its agenda of helping plaintiff’s causes by expanding the ambit of jurisdiction over foreign defendants and opening the door even wider to hauling more potentially liable parties into Pennsylvania personal injury matters. In the case of Hammons v. Ethicon, 7 EAP 2019 (Pa. Oct. 21, 2020) (Op. by Baer, J.), the Pennsylvania Supreme Court reviewed jurisdictional issues in a pelvic mesh products liability case. In the end, the court affirmed the entry of a judgment in favor of the plaintiffs over foreign defendants who had raised issues of jurisdictional.

The Hammons case presented a law school essay type of jurisdictional challenge in a matter involving a lawsuit filed in Pennsylvania by an Indiana resident who had a surgical procedure performed in Indiana and who alleged injuries from an implanted pelvic mesh that was manufactured by New Jersey corporate defendants.

The Pennsylvania Supreme Court provided a detailed summary of the current status of the law pertaining to personal jurisdiction that was noted to be in a state of flux. The court reviewed several notable U.S. Supreme Court opinions, the most recent of which was in the case of Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2107). According to legal commentators, the Bristol-Myers decision by the Supreme Court was deemed to be a defense-friendly decision.

Concisely, after the Bristol-Myers case, the following three elements must be met in order for specific personal jurisdiction to lie over a defendant. First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state. Second, the plaintiff’s claim must have arisen out of or relate to the defendant’s activities in the forum state or directed toward the forum state. Third, a finding of jurisdiction over the defendant must be found by the court to be fair and reasonable.

In Hammons, the Pennsylvania Supreme Court diverged from the law set down by the U.S. Supreme Court in Bristol-Meyers by rejecting the defense’s arguments that, under Bristol-Myers, the jurisdictional analysis should focus on the jurisdiction’s connection to each of the plaintiff’s individual claims. Instead, the 6-1 Majority in Hammons, with Chief Justice Thomas G. Saylor dissenting, ruled that the focus should remain on the defendant’s conduct.

In the end, the court found that the defendant’s suit-related contacts justified jurisdiction in that the particular defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company. The court additionally noted that this particular defendant also worked with a Pennsylvania physician in developing and marketing the product. In favoring the plaintiffs’ position, the Pennsylvania Supreme Court rejected a more narrow jurisdiction analysis set down by none other than the U.S. Supreme Court as such a contrary view “could unnecessarily restrict access to justice for plaintiffs.”

Split of Authority on Another Jurisdiction Issue

In terms of jurisdictional issues in the federal courts of Pennsylvania, it appears that a split of authority has arisen between the federal district courts of Pennsylvania as to whether or not Pennsylvania’s long arm statute imposing general jurisdiction upon any foreign corporation registering to do business in Pennsylvania is constitutional.

On the one side, we have the case of Kraus v. Alcatel-Lucent, 441 F.Supp.3d 68 (E.D. Pa. Feb. 27, 2020 Savage, J.), in which the court ruled that Pennsylvania’s long-arm statute, which allows for general jurisdiction on any foreign corporation registering to do business in Pennsylvania, is constitutional.

The case of Weigold v. Ford Motor, No. 20-2141 (E.D. Pa. Sept. 9, 2020 Savage, J.) represents another decision in which a court held that a foreign company’s registration to do business in Pennsylvania also represents a valid consent to general personal jurisdiction over that company in lawsuits filed in Pennsylvania.

In contrast, in the case of Reynolds v. Turning Point Holding, No. 2:19-CV-01935-JDW (E.D. Pa. Feb. 26, 2020 Wolson, J.), the court granted a motion to dismiss for lack of personal jurisdiction after finding, in part, that Pennsylvania’s statutory scheme requiring foreign corporations to consent to general personal jurisdiction in Pennsylvania by virtue of registering to do business in Pennsylvania violates the due process clause of the U.S, Constitution.

According to this opinion, the defendant franchiser involved in this matter did not have any significant contacts with Pennsylvania and the store where the plaintiff was alleged injured was a separately maintained corporation. The court in Reynolds specifically ruled that the defendant’s registration as a foreign corporation to do business in Pennsylvania was insufficient to subject it to general personal jurisdiction.

Over the past year, this important issue was also watched the state court arena. The case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), was viewed as the case in which would determine the validity of the argument that Pennsylvania’s business registration law was, in and of itself, sufficient to establish jurisdiction over an out-of-state company where that company has registered with the state to do business in Pennsylvania.

However, the en banc panel of the Superior Court ruled that the plaintiff had failed to properly preserve this issue of jurisdiction before the trial court and, as such, the court found that the issue was not preserved. As a result, litigants will have to await another day for this important and unsettled issue to be decided in Pennsylvania.

Products Liability

In 2020, the Pennsylvania Supreme Court was poised to decide whether Amazon.com could be sued in a products liability action in Pennsylvania as a “seller” of a defective product.

The Pennsylvania Supreme Court agreed to accept that issue for review as certified to its attention by the U.S. Court of Appeals for the Third Circuit in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020).

In the case of Oberdorf v. Amazon.com, No. 18-1041 (3d Cir. July 3, 2019), the Third Circuit had reversed the lower court and held that Amazon.com may be sued as a “seller” in products liability cases.

The case arose out of an incident during which the plaintiff was injured when a retractable leash she was using while walking her dog allegedly malfunctioned, snapped back, and caused permanent injury to the plaintiff’s eye.

It was more recently reported that this case was settled before the Pennsylvania Supreme Court could issue a decision on the question. As such, practitioners will have to wait for another day to hear from the Pennsylvania Supreme Court on whether Amazon can be sued in products liability claims here in Pennsylvania.

Medical Malpractice

The validity of the doctrine of res ipsa loquitur in medical malpractice matters was reaffirmed in a couple of cases over the past year. In the case Lageman v. Zepp, 237 A.3d 1098 (Pa. Super. 2020), the Pennsylvania Superior Court found that a trial court had erred in failing to charge the jury on the doctrine of res ipsa loquitur. The court found that, with the help of expert opinion, plaintiff had established all three elements of the res ipsa loquitur doctrine in connection with the defendant’s performance of the medical procedure at issue.

The Pennsylvania Superior Court emphasized that, while the doctrine of res ipsa loquitur is usually associated with events that are within the common knowledge of laypersons and not requiring any expert testimony, the application of the doctrine is not foreclosed where the plaintiff also presents a medical expert offering evidence of other specific negligent conduct.

In another res ipsa loquitur case, Snyder v. Scranton Hospital, No. 19-CV-83 (C.P. Lacka. Co. Aug. 28, 2020 Nealon, J.), the court denied the defendants’ motions for partial summary judgment in which it was asserted that the plaintiff should not be permitted to rely upon the doctrine of res ipsa loquitur in support of the claims presented.

According to the opinion, the plaintiff underwent ear surgery but allegedly awoke with a severe left ulnar nerve neuropathy injury as a result of a compression injury allegedly due to the medical providers’ failure to properly position, protect and assess the plaintiff’s left arm while he was unconscious during the surgery.

The plaintiff produced expert opinion evidence that such an injury does not happen during an ear surgery in the absence of negligence on the part of the medical providers. The plaintiff asserted that that expert evidence also served to eliminate other potential causes of the injury. The defense produced its own expert testimony in support of claims that the plaintiff ‘s injury was indeed the result of other unrelated causes.

The court denied the motion given that there was a dispute between the experts as to whether the doctrine of res ipsa loquitur should be applied. In the end, that issue was left for the jury to decide.

Looking Ahead

In the year ahead, the courts will continue to navigate the coronavirus pandemic in terms of holding trials. However, it is expected that the trial courts and the appellate courts will continue to churn out notable decisions on a wide variety of civil litigation issues, including with respect to jurisdiction, proper venue, and in a wide variety of premises liability, products liability and medical malpractice matters.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

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