Thursday, January 28, 2021

No Duty of Care Found on Service Companies Where Tree Limb Fell and Injured Plaintiff

In the case of Matthews v. Prospect Crozer, LLC, No. 355 EDA 2020 (Pa. Super. Nov. 23, 2020 Dubow, J., Lazarus, J., Ford Elliott, P..J.E.) (Op. by Dubow, J.), the court affirmed a trial court dismissal of the Plaintiff’s negligence claims against certain Defendants where there was no evidence that those Defendants undertook an ongoing duty to perform inspections and maintenance of trees on the property in a case where a tree limb fell and injured the Plaintiff. 

According to the Opinion, the Defendant landowner had a contract with the landscaping company and a snow removal company to periodically do work on the premises as needed. 

According to what the court termed as "hypothetical evidence" generated during the course of discovery, the landscaping Defendant and the snow removal Defendant generally noted that they would have notified the property owner if either noticed an issue with the trees on the property. 

The landscaping Defendant also noted it had occasionally performed tree-related work years prior to the incident. 

It was also generally and hypothetically noted during the course of discovery that the property owner expected both companies to inspect and maintain trees on the property as of the time of the Plaintiff’s incident.

The Superior Court affirmed the trial court’s entry of summary judgment after finding that the testimonial evidence cited by the Plaintiff in the record was hypothetical in nature and, therefore, insufficient to support any argument that the landscaping company or the snow removal company undertook a duty to inspect and maintain the trees on the property.

The court also noted that the fact that the landscaping company had occasionally performed tree-related work years before the subject incident was also insufficient to establish that the landscaping company had gratuitously agreed to inspect and maintain the trees.

The court also noted that the property owner’s stated alleged expectation that the Defendant companies would have maintained the trees was also insufficient to impose a duty upon the landscaping company and the snow removal company in the absence of any evidence that they actually undertook that duty.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image:

Encroachment By Trees Determined to Be a Continuing Trespass for Statute of Limitations Purposes

In the case of Long v. Reccek, No. 3458 EDA 2019 (Pa. Super. Nov. 25, 2020 McLaughlin, J., Pannella, J., McCaffery, J.) (Op. by McLaughlin, J.), the Superior Court reversed the entry of summary judgment in a trespass/nuisance case involving a neighborly dispute regarding overhanging trees. 

The appellate court ruled that the alleged encroachment upon the Plaintiff’s property by trees growing on the Defendant’s property constituted a continuing trespass and nuisance such that the statute of limitations had not yet run on the Plaintiff’s claim.

The court noted that, under Pennsylvania law, whether a trespass or a nuisance is permanent or continuing involves an analysis of the character or what produced the injury, whether the consequences will continue indefinitely, and whether past and future damages may be reliably ascertained.

The court noted that the trespass/nuisance in the form of overhanging trees is a continuing wrong given that trees would obviously continue to grow such that any encroachments are bound to continue to occur.

As noted, the appellate court reversed the trial court’s entry of summary judgment.

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

Source of image:

Monday, January 25, 2021



A Difference of Opinioin on the Value of a UIM Claim Does Not Equal Bad Faith

In the case of Satterfield v. Geico, No. 20-1400 (E.D. Pa. Dec. 8, 2020 Pratter, J.), the Eastern District Federal Court dismissed a bad faith action after confirming the well-settled law that a difference of opinion as to the value of a UIM claim, in and of itself, does not amount to bad faith. 

In this matter, the court found that the Complaint lacked the particularity required to state a claim for bad faith and, given that only conclusory allegations of bad faith were pled, the Complaint was dismissed.

The Plaintiff was allowed to file an Amended Complaint that more specifically identified the carrier’s allegedly unreasonable conduct.

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

I send thanks to Attorney Joseph Hudock from the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C., for bringing this case to my attention.

Friday, January 22, 2021

ARTICLE: "Does Jury Size Really Matter. Maybe. Maybe Not.

The COVID-19 pandemic has resulted in some trial court judges encouraging (pressuring?) civil litigants to consider agreeing to 6 jurors for a jury trial as opposed to the ordinary 12.  Here is a reprint of my article on the topic that recently appeared in the Pennsylvania Law Weekly comparing and contrasting the two options.

Does Jury Size Really Matter? Maybe. Maybe Not.

By Daniel E. Cummins | January 07, 2021

Daniel E. Cummins of Cummins Law.

Why do some people say, “It’s six of one, half a dozen of the other”? Why can’t they just simply say, “It’s the same difference?”

When it comes to juries these COVID-19 pandemic days, the question is becoming whether there is any difference to proceeding to trial with only six jurors as opposed to 12. Given the difficulty courts have had getting jurors to show up in courthouses in response to jury summonses, some judges have tried to convince civil litigants to agree to a six-member jury at civil trials as opposed to the standard 12-member jury that attorneys are so used to facing.

Many attorneys, who are creatures of habit and precedent, hesitate and are paralyzed by the internal debate on whether to give up a 12-member jury in favor of a six member jury. Is there really a difference? Or is six in one, the same as 12 in another jury box, when it comes to civil trials.

Reluctance of the Populace to Appear

According to a Nov. 22, Associated Press article by Dave Collins titled “Jury duty? No thanks, say the COVID-wary,” courts across the entire United States are postponing jury trials due to the difficulty in getting jurors to come to the courtroom for jury selection where they will be forced to be in close proximity to strangers from all walks of life for extended periods of time.

That difficulty has been seen here in Pennsylvania as well. Jury trials were shut down in the state and federal courts from April through August and slowly began to open again in September. Now, with the second surge of COVID-19, some courts such as the U.S. District Court for the Middle District of Pennsylvania and the Luzerne County Common Pleas Court have again chosen to postpone jury trials.

Other courts are attempting different tactics in an effort to keep their jury trials on track. The judges in the Lackawanna County Common Pleas Court, citing difficulties in getting jurors to show up in court and difficulties getting civil litigants to agree to proceed with trial in front of six-member juries, recently applied to the Pennsylvania Supreme Court for a modification of Pa.R.C.P. 221, which is covers “peremptory challenges.”

On Nov. 4, the Pennsylvania Supreme Court issued an order granting that application, thereby allowing the judges of Lackawanna County to reduce, or even eliminate, any peremptory challenges by any attorneys at a civil litigation trial. So far, this strategy by the Lackawanna County Court of Common Pleas to exert more control over its civil trials has not spread to other counties.

With the possibility of more courts pressing counsel to agree to six-member juries, more and more attorneys will have to weigh the pros and cons of agreeing to a smaller jury.

The Origin of 12 Jurors

The origin of juries is disputed. Although informal use of juries pre-dates the 12th century, King Henry II (1154-1189) of England is often credited with instituting the first official jury system, when in 1166 he ordered that “12 lawful men” in each village would make decisions on those accused of crimes. As the British Empire grew in the world, including over to America, English customs, such as the jury system of litigation, also spread. See

In the early United States, the right to trial by jury in a civil case was addressed in the Seventh Amendment to the Constitution, which amendment provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” No more specific rules were set down as to the number of jurors that were required to be in the jury box.

For almost two hundred years, the trend in civil litigation matters in the United States was in favor of 12-member juries. In the late 1960s, a court reform movement began that favored smaller juries, in part, as a costs-savings measure. In the 1970s, the issue of whether a six member jury was permissible in criminal and civil cases was addressed by the U.S. Supreme Court in separate decisions.

In 1970, the Supreme Court approved the use of a six-person jury in a Florida criminal case, ruling that neither the language nor the history of the U.S. Constitution mandated a 12-person jury in such proceedings. Instead, the Supreme Court, referred to the idea of a 12-person jury as a “historical accident,” and held that the purpose of a jury is to provide a cross-section of the community, and that juries of less than 12 persons in serious felony cases do not violate that purpose or the Constitution.

In Colgrove v. Battin, 413 U.S. 149 (1973), the Supreme Court held that a civil jury of six members did not violate the Seventh Amendment right to trial by jury in a civil case.

As such, history shows that a six-member jury is not without precedent. The question remains, however, whether there is a difference between a six-member jury and a 12-member jury other than the number of jurors sitting in the box (or as spread throughout the courtroom for social distancing purposes during the pandemic).

Potential Differences From Jury Size

While there is no science to picking the perfect jury and while jury selection is largely a random process, some differences have been noticed by those who have researched comparisons of six-member juries versus 12-member juries.

According to an article written in 2004 and titled “Are Six Heads as Good as Twelve?” on the American Psychological Association website, some psychologists believe, based in part by articles written in 1977 and 1997 by Michael J. Saks, Ph.D. and Mollie Marti, Ph.D, J.D., that justice is better served by larger juries. See

These psychological studies revealed that, generally speaking, smaller juries communicated in a more cohesive fashion, with more jurors sharing equally in the discussions and deliberations. Larger groups were noted to be more contentious with more vigorous debates, and better able to collectively recall more of the evidence. According to this article from the American Psychological Association website, it was also noted that a dissenter in a larger jury may be more likely to have an ally in the jury deliberations room such that those in the minority group of a larger jury may be better able to resist pressure to yield to the will of the larger group.

These findings have led some researchers to conclude that a larger jury may be more likely to render more accurate verdicts based upon a better recall of the evidence and a more thorough debate on the merits of the matter. These researchers asserted that more accurate verdicts lead to greater predictability which, in turn, could lead to more settlements of cases before trial. For these reasons, some researchers suggest that larger juries are better than smaller juries.

In another article titled “Less is not More” by Evan Moore and Tali Panken from the Cornell University Law School, it was noted that 12-member juries are more likely to be comprised of a cross-section of the members of the community with diverse backgrounds, beliefs and experiences, which is one of the main purposes of calling a jury to court. For these reasons, it appeared to be the suggestion of these commentators that 12-member juries should be favored over six member juries. See “Jury Size: Less is not more.

Although some psychologists and social scientists may have suggested that 12-member juries should be favored, those same researchers conceded that the differences in deliberations time spent on average by 12-member juries as compared to six member juries has not been associated with any differences in verdict decisions. In other words, the psychological research has not shown that juries of different size reach different verdicts based upon the size alone. See: “Is a Jury of Six as Good as One of 12?” by Marc W. Pearce, J.D., Ph.D. and Twila Wingrove, J.D. MA at For example, it was noted in one article that a case that goes to trial with evidence that greatly favors the defense would still likely come back as a defense verdict regardless of whether there were six jurors or 12 jurors on the panel, just that it might take the 12-member jury longer to deliberate and come back with its verdict.

In 2015, the state of Illinois changed from 12-member juries to six-member jurors in civil litigation matters. This change prompted one writer to interview attorneys on both sides of the bar in preparation for the writing of an article that appeared in the Illinois Bar Journal by Matthew Hector titled “Is the switch to six-person juries constitutional?.

One plaintiffs attorney interviewed for the article noted that, among the benefits of a six-member jury is that the time spent during jury selection can arguably be cut in half. That attorney believed that plaintiffs may benefit from a smaller jury in that the fewer the number of jurors that the party with the burden of proof must persuade, the more likely that that party may be to prevail.

A defense attorney interviewed for the article noted his belief that a 12-person jury may be better for civil litigation defendants. The defense counsel noted his opinion that, in a smaller jury, it may be more difficult for the members of the jury to override the obstinate stance of one dominant juror. It was noted that a 12-person panel of jurors could serve to blunt the effect of the adamant voice of a strong juror.

What to Do? What to Do?

The above research seems to indicate that plaintiffs should favor smaller juries and that the defense in civil litigation matters should generally favor larger juries, particularly in the larger value cases. The research also seems to indicate that those cases with very defense favorable evidence remain likely to come back as a defense verdict regardless of the number of jurors.

In the end, the choice for litigating attorneys on whether to agree to a smaller jury remains a tough internal debate, particularly with all of the uncertainties attendant with allowing a jury to take a case into the deliberations room and the fear that a loss at trial may be blamed on the fact that counsel agreed to go with a smaller jury. The best practice may be to review the above research with one’s client and advise the client on the pros and cons to a decision on jury size based upon the facts and circumstances of the particular case presented, and then confirm in writing with the client how the client elected to proceed to trial.

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 (, which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at

Thursday, January 21, 2021

A Defective Condition Arising 31 Seconds Before the Plaintiff Fell Is Not Enough Time to Impose Liability on a Store

In the case of DeRito v. Wal-Mart Stores East, L.P., No. 2:19-CV-737 (W.D. Pa. Dec. 2, 2020 Horan, J.), the court granted summary judgment in a slip and fall matter involving a Wal-Mart store. 

The court noted that the record confirmed that it was undisputed that the allegedly hazardous condition that allegedly caused the Plaintiff to slip and fall had existed for a mere 31 seconds before the Plaintiff fell. 

More specifically, it was noted that it was snowing on the day of the event.  A customer was seen on a video coming into the store and noticing that the automatic door was stuck in the open position.  That customer went to tell a store employee.  About 31 seconds later, another customer came in from the snowy outside and slipped and fell.  About 30 seconds after that, the first customer was seen on the video returning to the door with a store manager to address the issue with the door.   

The court ruled that, as a matter of law, a time period of 31 seconds is too short for the Defendant to have had legally sufficient notice of the defective condition and an opportunity to remedy the same in order to support the claim of liability.

While, generally speaking, notice of a dangerous defect may be implied if the dangerous condition has frequently recurred, there is no evidence that the equipment malfunctioned at issue in this case had ever happened before.

The court additionally noted that an alleged prolonged failure by the store to inspect the area prior to the fall was immaterial since the hazardous condition had not existed at the time.

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

Tuesday, January 19, 2021

Release Signed by Plaintiff Found to Preclude Other Claims

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment. 

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart. 

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00. 

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver. 

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image:

Monday, January 18, 2021

Volunteer Jurors for Virtual Mock Trial Competition Needed in Lackawanna County


Pennsylvania Supreme Court Declines to Adopt Continuous Representation Rule for Attorney Malpractice Claims

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule. 

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time-barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Friday, January 15, 2021

Admissibility of Similar Expert Opinions in a Medical Malpractice Case

In the case of Snyder v. Scranton Hospital Company, LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 14, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the admissibility of the expert testimony in a medical malpractice case. 

This matter arises out of a malpractice action during which the Plaintiff alleges that he suffered permanent left ulnar damage secondary to stretching or compression trauma caused by his improper positioning and inadequate monitoring during the course of a surgery.

In support of his claims, the Plaintiff has produced expert reports from an anesthesiologist, a rheumatologist, and a nurse with regards to the relevant standards of care and medical causation, along with additional expert reports from orthopedic surgeons concerning causation and the allegedly resulting damages.

The Defendants filed a Motion In Limine seeking to limit the expert testimony that the Plaintiff intended to present. More specifically, the Defendant sought to preclude any testimony by the rheumatology expert with regards to the standard of care and causation issues. The Defendants asserted that this expert should not be permitted to testify as he is not qualified to offer opinions on the standard of care and causation under the mandates of the MCARE Act, that the expert’s opinions would be cumulative in light of the opinions being offered by the Plaintiff’s other experts, and given that the rheumatologist expert's testimony was impermissibly speculative.

After his review of the record and the expert reports, Judge Nealon found that the rheumatologist expert offered by the Plaintiff did not satisfy the standard of care familiarity, same subspeciality, and similar approved board-certification requirements set forth in §512(c) of the MCARE Act, or the “related field of medicine” criteria in §512(e) of that Act, in order to be determined to be competent to address the standard of care under the facts of this case.

However, the court also found that the rheumatologist expert offered by the Plaintiff was sufficiently qualified under §512(a)(b) of the Act in order to testify as to the medical causation.

The court additionally noted that, since the causation opinions offered by the various different types of experts presented by the Plaintiff contained discrete reasoning offered by different types of medical specialists addressing the issue of causation from distinct clinical perspectives, the causation testimony of these different experts was found to be corroborative, rather than needlessly cumulative.

The court additionally found that the defense challenges to the rheumatologist's testimony based upon Pa. R.E. 703 and Pa. R.C.P. 207.1 under an argument that the testimony was impermissibly speculative was devoid of merit. The court noted that the rheumatologist’s opinions were based upon medical reports, depositions, and other evidence in the record. It was also noted that the expert did not rely upon novel scientific evidence or methodology that has not been accepted in the field of rheumatology.

As such, the court ruled that the rheumatologist would not be allowed to testify as to the applicable standard of care, but would be allowed to testify on the causation issues.

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

Lack of Informed Consent Claim Dismissed

In the case of Fritz v. BNG Aesthetics, LLC, No. CV-20-0553 (C.P. Lycoming Co. Oct. 28, 2020 Linhardt, J.), the court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice claim of a lack of informed consent relative to a laser procedure to treat the Plaintiff’s vision issues. 

The court ruled that the Plaintiff’s lack of informed consent claim against the Defendant doctor lacked the specificity required to establish that the doctor not only provided her with negligent treatment but also knowingly provided her with a different treatment than had been discussed with the Plaintiff.

The court noted that a claim for informed consent is treated as a “technical battery” under Pennsylvania law due to an unwanted testing.

Since the court found that the Plaintiff’s lack of consent/negligence claim was not properly pled, the court did not delve into the validity of the claim for punitive damages.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Source of Image:  Karolina Growbaska on

Thursday, January 14, 2021

A Pennsylvania Superior Court Panel Applies the Household Exclusion Despite Gallagher v. GEICO

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.  The Tort Talk post on that case, which contains a link to that decision, can be viewed by clicking this LINK.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. January 13, 2020 Kunselman, J., King, J., Colins, J.)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

Update:  While the Pennsylvania Superior Court initially inexplicably issued this decision as a non-published and therefore non-precedential decision, that status was recently changed on February 5, 2021 and the decision was reissued as a published precedential decision.

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

I send thanks to Attorney Benjamin P. Novak of the Lancaster office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this case to my attention.

Court Addresses Policy Definition of "Bodily Injury" in Context of Opioid Cases

In the case of Giant Eagle, Inc. v. Am. Guarantee & Liab. Ins. Co., No. 2:19-CV-00904-RJC (W.D. Pa. Nov. 9, 2020 Colville, J.), the court ruled that the Defendant insurance company had a duty to defend the Plaintiffs in multiple lawsuits where the Plaintiffs asserted claims of “bodily injury” allegedly caused by the insured’s distribution and sale of prescription opioids. 

The Defendant carrier argued that the Plaintiffs’ Motion should be denied as the Plaintiff failed to meet their burden of establishing that the Complaints in the underlying lawsuits sought damages for “bodily injury” caused by a single “occurrence” that first manifested during the periods of coverage.

In denying the carrier’s Motion, the court pointed to several court decisions which have interpreted similar “bodily injury” insurance policy provisions in conjunction with similar opioid and epidemic lawsuits and found that those underlying lawsuits that were seeking damages due to claims of "bodily injury."  The court found that the carriers in this case failed to sufficiently distinguish those cases.

More specifically, the court found that, although the particular Plaintiffs in these lawsuits did not allege that they personally suffered bodily injury or damages, those Plaintiffs were still seeking damages because of claims arising out of a "bodily injury."   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Borough May Face Liability for Covering Stop Sign by Snow Removal Efforts

In the case of Cupelli v. Borough of Dunmore, No. 1662-C.D.-2019 (Pa. Cmwlth. Dec. 21, 2020 Jubelirer, J., Wojcik, J., and Cannon, J.) (Op. by Cannon, J.) (Opinion not reported), the court found that snow negligently plowed by a borough can create an artificial accumulation based upon which a Plaintiff may assert a cause of action where that artificial accumulation of snow renders a traffic control device ineffective or unsafe. 

According to the Opinion, the Plaintiff was injured when the all-terrain vehicle (ATV) on which he was a passenger collided with a motor vehicle accident at the intersection of two (2) public roadways.

In the personal injury Complaint filed by the Plaintiff it was allowed the Borough had improperly piled snow in the area of that intersection and that such pile of snow resulted in the accident. More specifically, the Plaintiff alleged that the Borough’s workers failed to maintain a stop sign or the area around the stop sign at the intersection in that they had plowed snow to such heights around the stop sign as to create a reasonably foreseeable risk of injury. The court came before the appellate court by way of an interlocutory appeal by permission after the lower court’s rulings on Preliminary Objections asserted by the defense.

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

I send thanks to Attorney Bruce S. Zero of the Scranton office of Powell Law for brining this case to my attention.

Source of

Wednesday, January 13, 2021

Filing Entry of Appearance and Demand for Jury Trial in Federal Court Does Not Result in Waiver of Service of Process Defenses

In the federal court case of Orner v. International Laboratories, Inc., No. 1:20-CV-00449 (M.D. Pa. Nov. 16, 2020 Wilson, J.), the court denied a Motion to Dismiss.

Notably, the court ruled that the filing of an Entry of Appearance and a Demand for a Jury Trial does not waive objections that a Defendant may have to any issues surrounding service of process.

In any event, the court found that the service of process in this matter was successful. 

This decision is also notable for the court's rulling that a Plaintiff may serve the Defendant with the original state court process even after the Defendant had removed the action to federal court.

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

Federal Court Allows For Attorney's Fees to Plaintiff's Attorney on a Contingency By Figuring Out an Hourly Rate

In the case of King v. Alpha Sigma Tau Nat’l Found. Inc., No. $:20-CV-00778 (M.D. Pa. Dec. 1, 2020 Brann, J.), the court ruled that 28 U.S.C. §1447(c) allowed the Plaintiffs to recover attorney’s fees in a federal court action even when the Plaintiffs were represented on a contingency. 

The court awarded attorney’s fees to the Plaintiff after remanding a case to the state court that the Defendants were found to have improperly removed to the federal court.

This matter arose out of allegations that the Plaintiff’s college age son died during a fraternity rush party.

The court rejected the Defendant’s argument that the language of the statute limited attorney’s fee awards to only those fees that were actually incurred by a party. The Defendants had argued that, since none of the fees were technically charged to the Plaintiff, who was represented on a contingency, the Plaintiff was excluded from recovering any attorney’s fees under the statute. As noted, the court disagreed and pointed to other circuit court decisions allowing Plaintiff to recover attorney’s fees even when they were represented on a contingency.

Notably, the court also reviewed other decisions within the Middle District of Pennsylvania and came to a determination that the reasonable hourly rate for an attorney in this forum, and more particularly in the Williamsport, Pennsylvania area, range from $180.00 to $325.00 per hour, depending upon the skill, expertise, and experience of the attorney working on the case at hand.

In the end, $11,377.75 in attorney’s fees was awarded, as well as additional compensation for money spent on an expert.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2020).

Tuesday, January 12, 2021

ARTICLE: Hone your Courtroom Performance and Trial Skills

Here is a LINK to my article that appears in the current January/February edition of the Pennsylvania Lawyer magazine entitled "Hone Your Courtroom Performance and Trial Skills."

The article confirms how serving as a juror in the High School Mock Trial Competition put on by the Young Lawyers' Division of the PBA, and run by most county Bar Associations, can improve any attorney's skills as a litigator in the Courtroom.

Please support the Mock Trial Competition by contacting your local bar association for more information on how to participate.  As this year's competitions will be held virtually, you can participate from the comfort of your own office or home.

By participating you will be doing a good deed and and also helping yourself by reminding yourself of proper trial procedures and etiquette.

Claim Under All-Risk Policy For Coverage for COVID-Related Business Losses Dismissed

In the case 4431, Inc. v. Cincinnati Ins. Co., No. 5:20-CV-04396 (E.D.  Pa. Dec. 3, 2020 Leeson, J.), the court dismissed a Plaintiff’s Complaint for failure to state a claim in a case where the Plaintiff was seeking insurance coverage for COVID-related business income losses.  The court found that there was a lack of evidence of any direct “physical loss” required to implicate the coverage provisions of the policy.   

According to the Opinion by Judge Joseph F. Leeson, Jr., the Plaintiffs were owners and operators of restaurants in Pennsylvania that were forced to close due to state orders issued in response to the COVID-19 pandemic.  Those closures allegedly resulted in losses for each restaurant. 

The Plaintiffs sought a recovery under their “all risk” property insurance policies with the carrier.   The Complaint in this matter contained both a request for a declaratory judgment as well as breach of contract claim.   

The court additionally noted that, where a federal court Complaint contains claims for both legal and declaratory relief, a district court must determine whether the legal claims are independent of the declaratory claims.  If the legal claims are found to be independent, the court has an obligation to hear those claims, subject to exceptional circumstances.   However, if the legal claims are dependent upon the declaratory claims, the court retains the discretion to decline jurisdiction of the entire action.   

In this matter, the court found that the Plaintiffs’ breach of contact claim was independent of their claim for declaratory relief in that the breach of contract claim was sufficient in and of itself to invoke the court’s subject matter jurisdiction and was capable of being adjudicated without the requested declaratory relief.    

The court went on to find that the Plaintiff’s were not entitled to coverage under the policy because their premises had not suffered a direct “loss” as that term was defined in the policies as “accidental physical loss or accident physical damage.”  

Judge Leeson referred to two (2) other recent cases from the Eastern District of Pennsylvania reaching the same result when construing similar contractual language.   

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Dec. 24, 2020).  

Volunteer Jurors and Judges Needed for Upcoming Virtual Mock Trial Competition in Lackawanna County


Monday, January 11, 2021

Trial Court Requires Facts to be Pled to Support New Matter Defenses

In the case of Barnes v. Williamsport Petroleum, Inc., No. 20-0092 (C.P. Lycoming Co. Oct. 22, 2020 Linhardt, J.), the court sustained a Plaintiffs’ Preliminary Objections asserted against a Defendant’s affirmative defenses listed in a New Matter as such defenses were pled without any factual support. 
The court allowed the Defendants to file an amended pleading to contain factual allegations rather than a boilerplate listing of defenses in the New Matter.

This matter arose out of a slip and fall event.

The court agreed with the Plaintiff’s argument that facts were required to support New Matter defenses and that it would be inequitable to put the burden on the Plaintiff to conduct discovery to disprove a factually unsupported allegations, rather than requiring a Defendant to put forth some facts in the first place to support the defenses asserted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Complaint Need Not Be a Tell-All Tome

In the case of Greene v. Pennsylvania Power Co., No. 10336 of 2020, C.A. (C.P. Lawr. Co. Oct. 29, 2020 Hodge, J.), the court overruled the Defendant’s Preliminary Objections attacking a Plaintiff’s negligence Complaint primarily under arguments of a lack of sufficient specificity on the elements of a causation of negligence.

According to the Opinion, the decedent died as a result of an accident that occurred when he reported to work as a bus driver and was assigned to drive an empty bus for a practice run. As the decedent rounded a curve on the roadway, his side mirror sideswiped a utility pole near the edge of the roadway. That impact allegedly caused several high voltage wires to fall to the ground and onto the bus. The decedent suffered severe burns from an electrocution and died the same day.

A lawsuit was filed on behalf of the decedent claiming negligence against the companies responsible for the power lines.

The Defendants filed Preliminary Objections challenging the sufficient of the allegations in the Plaintiff’s Complaint.

The court ruled that while Pa. R.C.P. 1028(a)(4) does set a high bar of what must be alleged in a Complaint in order to allow a Complaint to proceed, the rule does not require “a tell-all chronicle verbosely stuffed with details” or an exhaustive inventory of the evidence underlying the claim presented.

The court found that the allegations in this Complaint were sufficient to enable the Defendants to prepare their defense to the claim presented.

The Complaint outlined the identity of the Defendants and asserted that those Defendants owned, operated and maintained the subject utility pole and that the Defendant’s breached their duty of care to maintain them safely. The Complaint also described a number of ways in which the Defendants allegedly deviated from that duty, including the placement of the pole near the roadway and in an unsafe condition.

The court also rejected the Defendants’ objections to the Complaint based upon the case of Connor v. Allegheny Hospital. After reviewing the Plaintiff’s Complaint in detail, the court did not find any vaguely worded, catch all allegations. As such, the Preliminary Objections were denied in this regard as well.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 15, 2020).

Friday, January 8, 2021

Judge Nealon of Lackawanna County Addresses Admissibility of Liability Expert in Trucking Accident Case

In the case of Hand v. DiMauro, No. 15-CV-4470 (C.P. Lacka. Co. Dec. 22, 2020 Nealon, J.), the court addressed several notable issues in a rear-end collision case involving a tractor trailer. 

According to the Opinion, the Defendant driver and his employer filed motions seeking to preclude the trucking safety expert’s opinions pursuant to Pa. R.E. 702(c) and Pa. R.C.P. 207.1 on the grounds that the expert’s methodology was allegedly not generally accepted in the motor carrier industry.  In the alternative, the Defendants sought to depose the expert under Pa. R.C.P. 4003.5(a)(2) in support of their Motion to Preclude.

The court ruled that the evidence submitted by the parties did not establish that the Plaintiff’s expert relied upon any novel scientific evidence or a methodology that has failed to gain general acceptance in the commercial transportation industry. 

Rather, the court found that the Plaintiff’s expert relied upon studies conducted by transportation safety organizations along with policies adopted by large commercial transportation companies and insurance companies. The expert recognized and applied a trucking industry standard requiring the removal of a commercial driver from service based upon certain a number of prior preventable crashes and traffic violations within a certain period of time.

The court therefore found the defense's Motion to Preclude the Plaintiff’s Expert Opinion to be without merit. As such, the court saw no need for an evidentiary hearing on the validity of the expert opinion or any reason to allow for a deposition of the expert.

The Defendants had also filed a Motion for Partial Summary Judgment that was addressed in this Opinion as well. 

In that motion, the Defendants sought the dismissal of any direct negligence claims against the employer for negligent supervision or retention of its driver, and all recklessness and punitive damages claims against the driver and his employer.

Judge Nealon granted the Motion for Partial Summary Judgment with regards to the Plaintiff’s claims of recklessness and punitive damages against the driver as no evidence of any reckless conduct by the driver was produced in the record. 

However, the court noted that the record did contain sufficient evidence, including opinions of an industry expert, to allow the claims of direct negligence, recklessness, and punitive damages to proceed against the Defendant employer.

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

Source of image:  Photo by Matthew T. Rader from

ARTICLE: "Mixed Results in Recent Ski Resort Liability Cases" By Daniel E. Cummins


There's a saying -- "Skiing....the only sport where you spend an arm and a leg to break an arm and a leg."

Here is a LINK to my recent article entitled "Mixed Results in Recent Ski Resort Liability Cases" which was published in the December, 2020 edition of Counterpoint, the newsletter for the Pennsylvania Defense Institute.

If you wish to review any of the decisions noted in the article, please go to and type the Plaintiff's name into the "Search This Blog" Box in the upper right hand corner and then click on the word "Search."  That will take you to the Tort Talk blog post on that case, in which you should find a link to the actual decision.

Source of Image:

Thursday, January 7, 2021

Corrected Link for Bogats v. State Farm Decision

Here is the corrected LINK the case of Bogats v. State Farm Mut. Auto. Ins. Co., No. 2:18-CV-708 (W.D. Pa. Nov. 30, 2020 Cercone, J.), that was summarized on Tort Talk yesterday and in which the court dismissed a bad faith claim based upon allegations of poor claims handling in a UIM matter. 

Apologies for the incorrect Link yesterday.

UIM Bad Faith Claim Dismissed Where No Evidence Found Sufficient To Allow Claims to Proceed

In the case of Bogats v. State Farm Mut. Auto. Ins. Co., No. 2:18-CV-708 (W.D. Pa. Nov. 30, 2020 Cercone, J.), the court dismissed a bad faith claim based upon allegations of poor claims handling in a UIM matter.

In part, the Plaintiff alleged bad faith in that the carrier allegedly failed to disclose that the Plaintiff’s stepson also had an automobile insurance policy with the carrier at the same time, which would considerably increase the potential UIM coverage.

According to the Opinion, the stepson’s policy was listed to a different home address. The stepfather advised the carrier that this was not accurate and an investigation into the stepson’s address ensued. The carrier ultimately agreed that there was additional UIM coverage available under the stepson’s policy. However, the carrier concluded that there was no factual basis to increase the settlement offer based upon the evidence presented.

The court found no support for the Plaintiff’s allegation that the carrier had misled the stepfather-insured into thinking there was less coverage then was actually available. The court also found no support for any reckless or intentional misconduct on the part of the carrier to support a bad faith claim.

The court otherwise found that the carrier’s claims handling was reasonable in that it considered multiple requests by the Plaintiff to re-evaluate the claim and had also agreed to the additional UIM coverage without significant delay once the actual address of the stepson was verified.  

Also, no evidence was found to support the argument that the carrier had engaged in course of conduct with intent to promote the carrier’s financial interests over its fiduciary duties to the Plaintiffs, or that the carrier had recklessly pursued a course of conduct that evidence bad faith towards its insured.

As such, the Plaintiff’s bad faith claims were dismissed.

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

I send thanks to Attorney Lee Applebaum Philadelphia law firm of Fineman, Krekstein & Harris. Attorney Applebaum is the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, which can be viewed HERE.

Wednesday, January 6, 2021

Court Rules That Plaintiff's Complaint Is Detailed Enough

In the case of T.D.A.P. v. Lawrence County Soc. Serv., Inc., No. 10071 of 2020, C.A. (C.P. Lawr. Co. Oct. 7, 2020 Hodge, J.), the court overruled a Defendant’s Preliminary Objections asserted against a premises liability Complaint filed by the Plaintiff.

According to the Opinion, the Plaintiff’s child was enrolled at an early learning center. The child was at the center and under the care of the Defendant when he was injured in the facility’s gymnasium.

The Plaintiff filed a personal injury lawsuit and the Defendant responded with Preliminary Objections alleging that the Plaintiff’s were not sufficiently specific. The defense asserted that it could not prepare an adequate defense because the Complaint did not provide enough facts regarding how the minor Plaintiff fell, how the fall led to his alleged injuries, or how the Defendant’s conduct contributed to those injuries.

The Plaintiff responded by asserting that the Complaint did contain enough facts in this regard.

After reviewing the Complaint, the court found that the Complaint alleged that the Defendant, as the operator of a daycare center, had the duty to supervise children under its care and to protect them from harm. The Plaintiff had also alleged that the child was on the premises as a registered student in the Defendant’s program when the incident occurred. It was additionally noted that the Plaintiff had alleged that the Defendants failed to provide adequate supervision to ensure that the child was not injured. The court also found that the causal relationship between the Defendant’s alleged conduct and the child’s injuries was easily implied from the facts presented. It was also noted that the Plaintiff’s Complaint gave details about the child’s injuries and the various treatments provided.

The court rejected the Defendant’s argument that the Complaint should have provided more details about the fall down event, such as, how it occurred, what activity immediately preceded it, and what the Defendant’s staff members were doing at the time.

The court noted that such a level of detail was not required in the Complaint. Rather, the Complaint contained all of the facts necessary to support the elements of a negligence claim and that the parties could use the discovery process to discover additional information.

Based on these rulings, the Defendant’s Preliminary Objections were overruled.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Claim Against Insurance Agent For Failing to Sell Insurance That Would Cover Business Interruption Claims Caused by COVID-19 Allowed to Proceed

In the case of Brown’s Gym, Inc. v. The Cincinnati Insurance Company, No. 20-CV-3113 (C.P. Lacka. Co. Dec. 18, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas overruled an insurance agent’s Preliminary Objections filed in a case in which a gym and fitness center, which was required to close its premises and cease its business operations in compliance with the government orders issued in response to the COVID-19 pandemic.

In addition to suing its commercial insurer under a declaratory judgment action seeking coverage for its pandemic related losses under an “all risk” policy, the gym also sued its insurance agent under claims of negligence and negligent misrepresentation for failing to provide the gym with the insurance coverage it allegedly requested. 

Based upon a review of the allegations of the Complaint, the court noted that the insurance agent arguably breached its duty to exercise reasonable care, skill, and judgment in securing and providing insurance coverage that was specifically requested by the gym. The court additionally ruled that the insurance agent need not be a named party to the insurance contract in order for the gym to state valid claims of negligence against the agent.

As such, the court overruled the Preliminary Objections in the nature of a demurer filed by the insurance agent.

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

Tuesday, January 5, 2021


Most Tort Talkers receive their Tort Talk info by way of email. If you are not already an email subscriber to Tort Talk and would like to become one (it's FREE!), please go to Tort Talk at and insert your email address into the Email Subscription box in the upper right hand corner of the blog and follow the instructions to complete the process.

Once you are up and running, you will automatically receive the updated posts added to Tort Talk (1-3 per week) on notable cases and trends in Pennsylvania Civil Litigation Law.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve to kickstart your research if you actually go to the Tort Talk site at  

On the site itself there are a number of research tools to help you find the case(s) or article(s) you are looking for.

Please note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue(s) presented elsewhere to ensure that you have a thorough review of the area of law in question.  Also, any case you find should be "Shepardized" to see if there has been any more recent, adverse rulings.

Here are the research tools available on Tort Talk to kickstart your research:

Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on the Link in each post that comes up to read the actual decision of the court.   If the blog post does not have a Link to the decision but instead notes that you can email me for a copy, please do not hesitate to send me an email request for a copy of the decision.

Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Also further down on the right hand column of the Tort Talk blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  The topics, or Labels, are listed in alphabetical order.  By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic.

Published Articles

If you type the word "Article" in the Search Box on the upper right hand corner of the blog, you will get to a number of different articles on various civil litigation issues.

You can get more specific in your search for an article as well, such as typing "Article recklessness," and that will bring you to an article on that topic.


Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support.  Please feel free to send me a copy of any notable decisions you may generate in your practice for possible highlighting here on Tort Talk.

If I should be able to you help out in any way, please do not hesitate to contact me at  

Please also contact me should you need any help with setting up a Mediation with Cummins Mediation Services.

Motion to Compel Facebook Discovery Denied in Lycoming County Case

Here's a Facebook Discovery decision -- the first one seen here in a while.  

To date, there still has not been any notable Pennsylvania appellate court decisions addressing this issue.  There are a slew of state and federal trial court decisions on the issue, many of which can be viewed on Tort Talk.

Please note that you can always review Facebook Discovery decisions on the Tort Talk Facebook Discovery Scorecard by going to and scrolling down the right hand column until you get to "Facebook Discovery Scorecard" and click on the date under that.

In the case of Harkey v. Stojakovich, No. CV-19-1295 (C.P. Lycoming Co. Oct. 26, 2020 Linhardt, J.), Judge Eric R. Linhardt of the Lycoming County Court of Common Pleas addressed a Defendant’s Motion to Compel Facebook Discovery from a Plaintiff in a tractor trailer accident case. 

According to the Opinion, the Plaintiffs filed a lawsuit against the Defendant tractor trailer driver and the tractor trailer driver’s company after the tractor trailer driver was involved in an accident with the Plaintiff who was operating the motorcycle.

During the course of discovery, the Defendants filed a Motion to Compel, including with respect to demands for copies of all of the Plaintiff’s social media postings. The defense asserted that all of the Plaintiff’s social media postings were relevant and discoverable because the Plaintiff claimed that he suffered physical disability, loss of life’s pleasures, difficulty walking, and loss of earnings as a result of the accident.

According to the record, the Plaintiff’s social media postings allegedly showed the Plaintiff taking multiple trips after the accident, including motorcycle rides. The social media post also showed the Plaintiff engaging in work at a restaurant and bar. 

Judge Linhardt noted that there was no appellate guidance on point and that the issue of the discoverability of social media postings had not been previously addressed in Lycoming County.   

Judge Linhardt reviewed cases from other Pennsylvania trial courts and reiterated the rule that, generally speaking, the parties seeking discovery of the non-public information on a party’s social media account is required to show a “factual predicate” that the sought after information could be relevant by demonstrating that relevant information has been posted on the publicly available portions of the website. 

However, the court ruled that, while the Defendants made a threshold showing that the Plaintiff’s social media account information could be relevant of the case at hand, the defense requests for the production of all of the postings from the Plaintiff’s social media sites lacked the requisite particularity for discovery requests necessary to avoid undue embarrassment and burden upon the Plaintiff and potential third parties.

As such, the defense Motion to Compel was denied in this instance.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Monday, January 4, 2021

Judge Terrence R. Nealon Rejects Plaintiff's Request To Have His Children and Grandchildren on Screen To Watch His Jury Trial

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas has issued an interesting decision regarding the logistics of a civil trial being conducted with COVID-19 Pandemic restrictions and precautions in place.

In Lackawanna County, certain larger courtrooms have been designated for use during trials due to the ability to allow for social distancing.  The additional measure of spreading the jury out in the jury box and out into the gallery has led the court to utilize technology to stream the trial proceedings to monitors and screens in other rooms in the courthouse in the event members of the parties' families or members of the public wish to view the proceedings.

In the medical malpractice case of Snyder v. Scranton Hospital Co., LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 31, 2020 Nealon, J.), the Plaintiffs filed a motion in limine seeking to have the court allow a displaying of the Plaintiff's children and grandchildren on monitors and screens in the courtroom via the Zoom videoconferencing platform during the course of opening statements and the closing arguments.  

The Plaintiffs' stated purpose behind this request was to allow the Plaintiff's attorney to introduce the family to the jury, to enable the jury to see and understand that the Plaintiff had a close knit and supportive family, and also to allow the family members to observe the openings and the closings.

The Defendants opposed the Plaintiff's request and asserted that the Plaintiff's request served no legitimate evidentiary purpose and was instead designed to inflame the jury from the outset of the trial and to garner improper sympathy from the jury in favor of the Plaintiffs.

Judge Nealon denied the Plaintiffs' request on several grounds and noted that granting such a request "would create more problems than it would solve."  See Op. at p. 7.

First, he confirmed that, logistically, the members of the Plaintiff's families did not have to be displayed on a screen in the courtroom in order for those family members to be able watch the proceedings on a screen in another room.

Judge Nealon additionally observed that, to the extent the Plaintiffs wanted to introduce family members during the course of the trial, the Plaintiffs could call those family members as witnesses at trial.

It was also noted, that in an effort to avoid any alleged prejudice to the Plaintiff from the absence of the Plaintiffs' family members in the courtroom during the course of the trial, the Court could issue a cautionary instruction to the jury explaining that the family members would be watching the trial from another room in the courthouse due to the jury's use of the gallery for socially distant seating purposes under the COVID-19 restrictions.

Judge Nealon also confirmed that, to the extent the Plaintiffs sought to display their family members on the screen to the jury during openings and closing arguments as proof that the family was close knit and supportive of the injured Plaintiff, such a request would constitute improper opening or closing statements in that such would be an effort to introduce evidence at improper stages of the trial  Judge Nealon noted that it is a "hornbook rule" of law that opening statements and closing arguments are not part of the evidence and may not be considered by the jury as evidence in the case.  See Op. at p. 9.

The Court also noted that, while parties at trial are permitted to utilize visual aids during opening statements and closing arguments, the continuous display of the Plaintiff's family members on the screens and monitors in the courtroom would not be a proper use of demonstrative evidence under the circumstances presented here.  

The court reasoned that, in fact, the constant display of family members, including "restless" children trying to sit through protracted opening statements or closing arguments may even prove distracting or uncomfortable to a jury, and/or may prevent Plaintiff's counsel from the utilizing the screens in the courtroom to show other visual aids to the jury, such as medical records and the like.

Judge Nealon also agreed that the Defendants had articulated the possibility of prejudice in that the Defendants may be unfairly harmed before the first piece of admissible evidence is ever presented at trial if the Plaintiff's request to display family members on the screen during the opening statements was granted.  In so ruling, Judge Nealon noted that the Pennsylvania Supreme Court has recognized that opening statements could be the most important part of a trial as a juror could develop a lasting impression of the case presented that stays with the juror throughout the duration of the trial and into the deliberations room.

In this regard, Judge Nealon agreed that there was a danger that the perpetual display of the Plaintiffs' children and grandchildren on screens before the presentation of any evidence could inflame the jury or generate sympathy such that the jury's attention may be improperly diverted from the statements and arguments of all counsel at the beginning and the end of the trial.

Weighing the fact that the Plaintiff's request could be handled satisfactorily by other means against the potential harm that would result from granting the Plaintiff's request, the Court ultimately decided to deny the Motion.

Anyone wishing to review this decision may click this LINK.