Friday, April 30, 2021

Summary Judgment Granted in Dental Malpractice Case Where Plaintiff Sued Defendant Personal and Not His Corporate Entity

In the case of Buarotti v. Terrery, No. 2013-CV-2018 (C.P. Monroe Co. Jan. 28, 2021 Harlacher Sibum, J.), the court granted a Defendant dentist’s Motion for Summary Judgment in a dental malpractice case.   

According to the Opinion, the Plaintiff saw the dentist for an examination and evaluation.  During the examination, the Plaintiff underwent x-rays and, while the Plaintiff was biting down on the radiographic sensor, the dental hygienist tripped over the wires to that sensor.  As a result, the sensor was ripped from the Plaintiff’s mouth and her head was pulled back.  The Plaintiff allegedly sustained a neck strain, vertigo, and TMJ as an alleged result of this incident.   

The Plaintiff and her husband then sued the dentist only on a personal basis.   

The dentist moved for summary judgment asserting that the Plaintiff had failed to establish a negligence claim against him as they had sued the wrong party.  More specifically, the dentist asserted that he did not administer the x-ray and was not even in the room at the time of the incident. 

 The dentist also asserted that he did not, in his personal capacity, hire the hygienist who administered the x-ray.   Rather, the dentist had his office set up under his name as a corporate entity which was a separate legal entity from his individual capacities.   The dentist asserted that the corporation had hired the hygienist as an independent contractor.   

Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas confirmed that the Plaintiff did not present any evidence to rebut the defense assertion that the individual Defendant dentist did not hire the dental hygienist.     As such, the court found that the individual dentist could not be held liable for the hygienist’s actions.   

The court also found that the Plaintiff did not demonstrate any factors that would warrant piercing the corporate vail such as the factors of gross undercapitalization, failure to observe corporate formalities, non-payment of dividends, and insolvency of the debtor corporation, and/or non-functioning of officers and directors.   

The court also rejected any suggestion that the individual dentist was potentially liable for the dental hygienist’s actions under an ostensible agency theory.  

In this matter, the Plaintiff did not also sue the hygienist.   The court ruled that, under Pennsylvania law, absence the agent’s presence in the lawsuit, liability on the part of the principle is extinguished.   

As noted, the court granted summary judgment in favor of the individual dentist Defendant.   

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 9, 2021). 

Claim of Negligent Infliction of Emotional Distress Allowed to Proceed in Med Mal Case

In the case of J.J.W. v. Suppiah, No. 2020-SU-002045 (C.P. York Co. Jan. 25, 2021 Adams, J.), the court denied the Preliminary Objections filed by medical malpractice Defendants to a Plaintiff’s claim for negligent infliction of emotional distress.   

According to the Opinion, the Plaintiffs were the parents of a minor who was four (4) years old at the time he underwent eye surgery at a hospital.   During the course of the surgery, the minor was administered 10 mg of Morphine, which was allegedly approximately eight (8) times the recommended dose.   

When the minor was discharged from the hospital, he was not fully conscious.  It was alleged that, during the discharge process, the parent Plaintiff did not receive any information that anyone had administered Morphine to the child, nor were they given instructions or warnings regarding the potential harmful effects that Morphine could cause their child.

Later, when the parent Plaintiffs noticed that they child was not waking up, they took him to the emergency room at the hospital.  The child was transferred to a pediatric intensive care unit at another hospital.  Testing revealed that the Plaintiff suffered from opioid toxicity.  The minor Plaintiff had to undergo extensive rehabilitation.   

The Plaintiffs filed a medical malpractice lawsuit.  The hospital filed Preliminary Objections arguing that the Plaintiff’s claims for negligent infliction of emotional distress should be dismissed because the Plaintiff did not demonstrate the necessary special relationship with the hospital and because the Plaintiff did not witness the administration of the Morphine.   

With regard to the special relationship argument, the parent Plaintiff responded that they were required to sign all consent forms due to the child’s age and that the discharged papers were provided to them.   They additionally argued that the child’s inability to understand his medical care meant that the hospital had a duty to provide his parents with important information and discharge instructions, which the Plaintiffs alleged were grossly inadequate and incomplete.   

The Plaintiffs additionally asserted that, when the child was near death, it was foreseeable that the parent’s shock and emotional distress resulted in anxiety, headaches, sleep disturbance, crying spells, fear, depression, and mental and emotional anguish.  

The court overruled the Preliminary Objections after finding that the Plaintiff had provided sufficient facts to support their claim for negligent infliction of emotional distress.   The court agreed that the Plaintiff did not need to witness the negligent administration of the Morphine to support their claim because that was only one aspect of the underlying claims against the hospital.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2021).

Thursday, April 29, 2021

Court Upholds Regular Use Exclusion and Rejects Extension of Gallagher v. Geico Argument

In the case of Shepherd v. Talotta, No. 2:20-CV-01046-CFK (E.D. Pa. April 22, 2021 Kenney, J.), the court upheld a regular use exclusion and, in the process, rejected the Plaintiff’s arguments under Gallagher v. Geico, as well as public policy arguments.

According to the Opinion, the Plaintiff was seeking UIM coverage for injuries suffered by the Plaintiff in a car accident while driving a UPS delivery truck in the course of his employment with UPS.

After resolving the claim against the tortfeasor, the Plaintiffs turned to their UIM coverage under their own car insurance policy. That policy provided for UIM coverage but excluded from that coverage injuries sustained while driving a non-owned vehicle provided for the insureds’ regular use.

The Plaintiff was urging the court to find that the carrier had breached its automobile insurance contract by failing to provide UIM coverage because the “regular use exclusion” violated Pennsylvania law and was contrary to public policy.

The court rejected this argument and granted summary judgment in favor of the carrier.

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

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall Dennehey for bringing this case to my attention.

Wednesday, April 28, 2021

Superior Court Addresses Issues Regarding Competency of Expert as well as Delay Damages

In the case of Povrzenich v. Ripepi, No. 1764 WDA 2019 (Pa. Super. March 19, 2021 Bowes, J., Olson, J., and Musmanno, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court found that the trial court abused its discretion in precluding a certified life care planner from testifying in the Plaintiff’s medical malpractice case after the appellate court found that the expert had sufficient specialized knowledge and experience to offer an expert opinion regarding future medical expenses associated with the care at issue.

According to the Opinion, the Plaintiff argued that the trial court’s concerns went to the weight of the testimony rather than the admissibility of the expert opinion and that the exclusion of the evidence by the trial court led to the Plaintiff’s future medical damages not being submitted to the jury.

On appeal, the Superior Court found that evidence was presented to establish that the Plaintiff’s expert has sufficient specialized knowledge and experience to offer her expert opinions. The court found that the fact that the life care planner had little experience with regards to the particular types of patients at issue in this case did not disqualify the expert from using her skills and experience to analyze the cost that would be associated with the future medical treatment required.

Notably, the appellate court also agreed that the claim for damages for future medical expenses was sufficiently independent and discrete from the other damages to permit a new trial limited to future medical expenses issues only.

The appellate court also addressed delay damages issues. The Plaintiff asserted that the trial court had erred in calculated delay damages.

According to the Opinion, the trial court excluded from the calculations of delay damages, three periods of time when the Plaintiff sought and obtained discovery extensions. Those times periods were excluded from the calculation of delay damages because those delays were attributable to the Plaintiff.

The appellate court declined to follow the trial court’s position that every extension of discovery sought by a Plaintiff in a complicated medical malpractice action constituted a delay of trial. The court noted that the trial date had not yet been set in the matter until after discovery was closed.

The case was remanded to the trial court to determine whether the Plaintiff displayed a lack of due diligence that delayed the trial during the times that the Plaintiff sought and obtained discovery extensions.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2021).

Tuesday, April 27, 2021

Third Circuit Court of Appeals Confirms that Any Writing Can Serve as a UIM Sign Down Form

In the case of Gibson v. State Farm Mut. Auto. Ins. Co., No. 20-1609 (3d Cir. Jan. 21, 2021 Hardiman, J., Roth, J., and Pratter, J.) (Op. by Pratter, J.), the court addressed the requirement under §1734 of the Motor Vehicle Code with respect to the valid election for reduced underinsured motorist coverage.

At the outset of its Opinion, the Third Circuit noted that, although basic UIM coverage is typically offered in an amount equal to the bodily injury limits set forth in an automobile insurance policy, an insured in Pennsylvania can reduce premium costs by opting for a lower amount of underinsured motorist coverage. The court noted that, to accomplish this result, the Pennsylvania law requires, under  75 Pa. C.S.A. §1734, that the insured make a “request in writing.” 

The Third Circuit indicated that the statute says “little beyond that. But that silence speaks volumes. As we reiterate today, the statute means what it says: an insured can make that choice “in writing” in any writing as long as the choice is clear.”  See Op. p. at 4.

In this matter, the Plaintiff signed an insurance application with the carrier for bodily injury coverage of $250,000.00 and $100,000.00 in stacked UIM coverage. The Plaintiffs had three (3) cars under the policy.

The court emphasized that the court signed an application that included language that stated “the limits and coverages [in the application] were selected by me.” The application also referenced another “required” document, an acknowledgement of coverage selection form for UIM. The carrier did not supply that form and the Plaintiff did not sign it at that time.

The Plaintiff was seriously injured in a motor vehicle accident shortly after signing the application for the insurance. Three (3) weeks after the accident, the Plaintiff signed an Acknowledgement of Coverage Selection form in which she acknowledged that she had been given opportunity to purchase UIM coverage with limits up to her liability coverage for bodily injury but had instead selected a lower UIM limits.

In the end, the court found that the Plaintiff’s signature on the application, with the language contained in the application, confirmed that the Plaintiff was electing lower UIM limits.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 22, 2021).


Monday, April 26, 2021

Judge Terrence R. Nealon Addresses Claims of Recklessness Under MCARE Act

In the case of Doughitt v. Saber Health Care Group, LLC, No. 20-CV-3136 (C.P. Lacka. Co. April 22, 2021 Nealon, J.), the court addressed issues regarding claims of punitive damages in a medical malpractice action involving Wrongful Death and Survival claims.

This case was brought by an estate and daughter of a former nursing home resident under a medical professional liability claim alleging corporate and individual negligence and recklessness by the Defendants which allegedly resulted in the nursing home resident’s death.

In the Complaint, the Plaintiff confirmed that she was seeking damages under the Wrongful Death Act and the Survival Act, including demands for compensatory and punitive damages.

The Defendants filed Preliminary Objections in the nature of a demurrer seeking to strike the claims for punitive damages on the grounds that those claims were insufficient as a matter of law under §505(a) of the medical care availability and reduction of error (MCARE) Act, 40 P.S. §1303.505(a).

Judge Nealon noted that §505(a) of the MCARE Act is consistent with other Pennsylvania case law governing punitive damages in that the Act provides that punitive damages are recoverable for a healthcare provider’s “willful or wanton conduct or reckless indifference to the rights of others.”

Reiterating his previous rationale as stated in other decisions regarding claims of recklessness, Judge Nealon noted that, although wanton and willful misconduct and recklessness are considered under the law to be conditions of the mind such that they may be averred generally pursuant to Pa. R.C.P. 1019(b), the court found that the Plaintiff in this matter still alleged sufficient facts in any event that would factually support a finding of wanton or reckless indifference by the Defendant’s in any event.

More specifically, the court noted that the Plaintiff alleged that the Defendant’s intentionally increased a number of infirm residents with complex health conditions in order to increase their governmental reimbursements, knowingly establish staffing levels that were insufficient, repeatedly ignored staff reports regarding alleged alarming increases in infections and illnesses within the facility, and other allegations.

Judge Nealon went on to note that, generally speaking, in a Survival action, the decedent’s estate is permitted to pursue claims that the decedent could have asserted if he or she had lived. In contrast, the Wrongful Death action is brought by specified relatives of the decedent to compensate those surviving family members for the losses that they have sustained as a result of the decedent’s death.

The court noted that, consequently, the decedent’s estate may recover punitive damages in a Survival action if the decedent could have recovered those types of damages had he or she survived. However, under Pennsylvania, punitive damages are not recoverable in a Wrongful Death action.

As such, the court sustained the Defendant’s demurrer to the punitive damages claims only with respect to the Plaintiff’s punitive damages claims asserted in the Wrongful Death action. The Defendant’s demurrer was overruled in all other respects.

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

Summary Judgment Granted in Monroe County Slip and Fall Case Where Precipitation Continued Up to Time of the Fall

In the case of Kulb v. Exeter 2086 Corp. Center, LLC, No.388-CV-2019 (C.P. Monroe Co. Feb. 5, 2021 Zulick, J.), the court granted a Defendant’s Motion for Summary Judgment in this slip and fall case because the Plaintiff failed to show that the Defendant owed a duty of care under the facts presented.   

According to the Opinion, the Plaintiff worked at a warehouse and sustained injuries when she slipped and fell when she left work shortly after midnight.   

The court noted that intermittent freezing rain had been occurring since the morning of the day leading up to the Plaintiff’s post-midnight fall.    The court also noted that the intermittent freezing rain had continued up through to the time of the incident.   

The Defendant snow removal company that was sued in this matter moved for summary judgment arguing that the hills and ridges doctrine protected it from liability.   

Judge Arthur K. Zulick of the Monroe County Court of Common Pleas noted that circumstantial evidence indicated that the rain had frozen on the surface of the sidewalk and the parking lot before the Plaintiff had left the building.   

The Plaintiff asserted that, when she left the building, the weather was clear and everything just appeared to be wet.  

However, when the Plaintiff stood up after her fall, she found that the parking uniformly slippery and that she had to walk very carefully to reach her vehicle.  When she reached her car, she discovered her car door was covered in ice and she had a difficult time opening her car door.  The Plaintiff also confirmed that she had to scrape ice off of her windshield before she could leave the parking lot area.   

The Defendant asserted that the ice was a natural accumulation.   The snow removal contractor asserted that it had worked on the subject premises on the day leading up to this post-midnight incident in an effort to remove the snow or ice.   

The court found that the Plaintiff did not identify any facts which suggested that the work completed by the Defendant caused the melting and refreezing of ice in the area where the Plaintiff fell.   

The court also held that the Plaintiff failed to demonstrate that the snow removal company had a duty to clear the generally slippery conditions that existed at the very moment that she fell.   In this regard, Judge Zulick reiterated Pennsylvania law that recognizes that it was not possible to keep walks and parking areas perpetually free of ice in the winter climate.   

Because the Plaintiff had failed to show that the Defendant snow removal contractor had breached any duty of care, the Defendant’s Motion for Summary Judgment was granted.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 9, 2021). 





(570) 319-5899

Thursday, April 22, 2021

Court Allows for Jurisdiction in Pennsylvania Over Connecticut-Based Company Based, in part, On Website Activity

In the case of D&S Auto Sales v. Commercial Sales & Marketing, No. 19-CV-7494 (C.P. Lacka. Co. Feb. 19, 2021 Nealon, J.), the court ruled that a Connecticut-based auto dealership can be sued in Pennsylvania because its website specifically targeted consumers from Pennsylvania and actively pursued their business.

After reviewing the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that enough buyer-seller activity occurred on the Defendant’s interactive website to establish general jurisdiction to allow the case to move forward in Pennsylvania.

In his decision, Judge Nealon noted that a number of activities occurred over the interactive website as opposed to visitors to the site just gathering information, including customers scheduling vehicle maintenance, requesting parts to be ordered, checking availability of vehicles, and inquiring about pricing.

The Court found that this level of interaction activity sufficient to form a basis for general jurisdiction over the Defendant.

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

Pennsylvania Superior Court Allows for Statute of Limitations Issue to be Addressed by way of Preliminary Objections

In the case of Sayers v. Heritage Valley Medical Group, Inc., No. 405 WDA 2020 (PA Super March 15, 2021, Bowes, J. Olson, J. and Musmanno, J.) (Op by Olson, J.), The Pennsylvania Superior Court found that the trial court property dismissed a Plaintiff’s medical malpractice action on statute of limitations grounds even though the Defendants raised the issues by way of Preliminary Objections instead of through their New Matter.

According to the opinion, there were delays in reissuing and completing the service on the writ of summons.

One of the Defendants asserted a statute of limitations defense by way of Preliminary Objections. The Plaintiffs filed a Preliminary Objection to the Defendant’s Preliminary Objections. The main argument put forth by the Plaintiffs was that a statute of limitations defense must be raised in a New Matter.

After finding that the record clearly established that the writ of summons filed by the Plaintiff failed to toll the statute of limitations, the trial court elected to address the status of limitations defense in the interest of judicial economy and, as a result, dismissed the Complaint.

The Pennsylvania Superior Court stated that generally speaking, a statute of limitations defenses is indeed properly raised in a New Matter and not in Preliminary Objections. 

However, the court noted that there is an exception to the rules that permits the trial court to address in affirmative defense on the merits when it has been brief, argued, considered, by the trial court, and if it is apparent from the record that, if the affirmative defense were properly raised in a New Matter, the Defendant party would have the right to assert the issue in a Motion for Judgment on the Pleadings.

Pennsylvania Superior Court also stated that the affirmative defense may be raised by Preliminary Objections were it is established under phase of a Complaint that the same is of merit or where the Plaintiff failed to object to this procedural irregularity, i.e. by failing to file Preliminary Objections to improper Preliminary Objections asserted by the Defendant.

In this case, the court found that there is no evidence or information that the Writ that was filed by the Plaintiff was ever delivered to the Sheriff's Department for service.  Nor was there any other evidence to show a good faith effort on part of the Plaintiff to complete service. 

As such, the appellate court found that it was proper for the trial court to have addressed the statute of limitations issue. The appellate court also affirmed the entry of the Order of the trial court sustaining the Defendant's Preliminary Objections and dismissing the Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 30, 2021).

Wednesday, April 21, 2021

Report of Consulting Firm Retained By Defendant After Industrial Accident Ruled Discoverable

In the case of Vimelson v. Johnson Mathey, Inc., 2021 Pa. Super. 20 (Pa. Super. Feb. 17, 2021 Bender, P.J.E., Lazarus J., Stevens, P.J.E.) (Op. by Lazarus, J.), the Pennsylvania Superior Court affirmed the trial court’s decision that a Defendants’ consulting firm's report, which was prepared after an employee died in an industrial accident, was discoverable because the consulting firm was not hired, and their report was not prepared, in anticipation of litigation. 

According to the Opinion, after the decedent fell to his death while working at a plant, the Defendants retained a consulting firm five (5) days after the event to conduct a site safety investigation and determine the cause of the accident.

During the course of discovery, the Plaintiff became aware of the report and filed a Motion to Compel to secure the same. The Defendants argued that the report was prepared in anticipation of litigation and was, therefore, privileged. The Defendants asserted that the consulting firm was a non-testifying expert consultant and no exceptional circumstances existed to entitle the Plaintiff to access to the report.

The Plaintiff responded by arguing that it was the Defendants, and not the Defendant’s attorneys, who had hired the consulting firm. The Plaintiffs also asserted that the report by the consulting firm had not been prepared in anticipation of litigation.

The Defendants had also filed a Motion for a Protective Order in response to the Motion to Compel.

As noted, the Superior Court affirmed the trial court’s ruling that the report was discoverable.  The trial court had agreed that the consulting firm had not been retained in anticipation of litigation.  The appellate court agreed that it appeared from the record that the consulting firm had been retained for a business purpose, that is, to find the cause of the accident and to enable the Defendant to implement changes to prevent such accidents from reoccurring in the future.

The court ruled that the fact that litigation may have been foreseen did not, in and of itself, support a ruling that the discovery should be precluded.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 2, 2021).

Monday, April 19, 2021

Court Excuses Delays Related to COVID-19 Pandemic With Respect to Completion of Service of Process

In the case of Pasquariello v. Manwiller, No. C-48-CV-2020-00607 (C.P. North. Co. Jan. 11, 2021 Murray, J.), the court denied a Defendant’s Preliminary Objections against the Plaintiff’s Complaint in which the Defendants asserted a lack of personal jurisdiction based upon untimely service.

The court rejected the Defendant’s contention that the Plaintiffs had stalled the legal machinery that they had set in motion by way of the filing of the lawsuit. Rather, the court found that the Plaintiffs had made a good faith effort to complete service.

The court emphasized that, when the Plaintiff filed a Writ of Summons, the Plaintiffs sent a copy of the Writ to the claims adjuster for the Defendant’s carrier and inquired whether the carrier would accept service in order to avoid expenses to the Defendants (and the Plaintiffs). This request was rejected by the carrier.

The court also noted that, around the time of this request, the COVID-19 pandemic shut down the normal operations of the Sheriff’s Departments throughout the Commonwealth of Pennsylvania.

The record confirmed that the Plaintiff had reissued the Writ of Summons as soon as the local Sheriff’s Office reopened.

The court found that the delay in service was due to the pandemic and not because the Plaintiff had stalled the legal machinery that had been set in motion.

It was noted, however, that the Plaintiff had failed to complete service within the time allowed. As such, in its decision, the court required the Plaintiff to file a Praecipe to Reinstate the Writ and to serve the Defendants within thirty (30) days from the date of the reinstatement.

The court also addressed other Preliminary Objections in this case.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 23, 2021).

Friday, April 16, 2021

U.S. Supreme Court Latest Pronouncement on Personal Jurisdiction Over Out-of-State Defendants In a Products Liability Case

The United States Supreme Court recently issued a notable decision in the case of Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368 (U.S. March 25, 2021), in which the Court affirmed a decision finding the existence of personal jurisdiction over products liability claims by an in-state plaintiff for in-state injuries against an out-of-state defendant.

Defendant Ford had sought to extend the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), which rejected personal jurisdiction over claims by out-of-state plaintiffs against out-of-state defendants for out-of-state injuries.

Ford asserted that, under the Bristol-Myers analysis, specific jurisdiction requiresd a “causal link” between the defendant’s forum contacts and the plaintiff’s claims, which was not present in this Ford case because the cars involved in the accidents were not designed, manufactured, or first sold in-state.

The five-justice majority disagreed.  The majority rejected a strict causal link standard and distinguishing the forum-shopping circumstances of Bristol-Myers from the claims in Ford by in-state plaintiffs for in-state injuries. The majority held that the Court’s specific jurisdiction standard includes suits that sufficiently “relate to” a defendant’s forum contacts, even in the absence of a causal link.

Applying this standard to the two cases before it, the majority held that Ford’s activities in Montana and Minnesota, including marketing, selling, and servicing the same models of cars at issue in the cases, enticed residents to purchase Ford cars and, as such, were sufficiently related to the plaintiffs’ claims to create specific jurisdiction over their suits. The Court held: “Ford had systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those States. So there is a strong ‘relationship among the defendant, the forum, and the litigation,’—the ‘essential foundation’ of specific jurisdiction.”

Commentators have noted that now, following the Ford decision, it appears that a defendant’s showing that a plaintiff’s claim does not arise out of or is not causally linked to the defendant’s conduct in the forum state may not be enough to prevail on a defense argument that a court lacks personal jurisdiction if a plaintiff can show that the claim sufficiently “relates to” the defendant’s conduct in the state.

Commentators have also noted that the Bristol-Myers analysis still also stands.  Those commentators have asserted that the Ford decision does not disturb the U.S. Supreme Court’s previous rejection in Bristol-Myers of specific jurisdiction over claims by non-resident plaintiffs against a non-resident company whose product allegedly injured the plaintiffs. 

Anyone wishing to review this decision may click this LINK.

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

Thursday, April 15, 2021

Pennsylvania Superior Court Addresses Claims of Corporate Negligence in a Medical Malpractice Case


In the case Ruff v. York Hospital, 2021 Pa. Super. 39 (Pa. Super. March 11, 2021 Shogan, J., Stabile, J., and Murray, J.) (Op. by. Shogan, J.), the court affirmed the lower court's denial of a Plaintiff’s post-trial motions in a medical malpractice case in which a defense verdict was entered. In so ruling, the Pennsylvania Superior Court touched upon a number of different issues pertinent to medical malpractice cases.

The Superior Court emphasized that, in the context of a medical malpractice case, corporate negligence is a doctrine under which a hospital owes a direct duty to its patients to ensure their safety and well-being while the patients are in the hospital.

The Court noted that, in order to establish a claim of corporate negligence, the Plaintiff must show that the hospital had actual or constructive knowledge of the alleged defect or procedures that allegedly created the harm. The court noted that corporate negligence typically involves claims of systemic negligence in the actions and procedures of the hospital itself, rather than any individual acts of its employees.

The Court otherwise ruled that a hospital’s oversight duty does not require that the hospital direct or override a physician’s clinical judgment in any given case.

The Superior Court also found that the jury instructions utilized the trial court on corporate negligence, which conformed to the Suggested Standard Jury Instruction, were adequate.

On an evidentiary issue, the Superior Court ruled that the Plaintiff’s expert was properly allowed to reference a learned treatise as support for the expert’s opinions, but that the Plaintiff was properly precluded by the trial court from placing the learned treatise itself into evidence.

The Superior Court also found that the Plaintiff’s expert was properly precluded by the trial court from offering any opinion that the Defendant’s conduct was reckless. The Superior Court noted that, whether conduct was reckless was to be determined by the jury and was not a proper subject of expert testimony. In this regard, the court noted that expert witnesses are not permitted to render legal opinions and may not offer opinions on whether conduct complied with the law.

As stated, overall, the appellate court affirmed the trial court’s denial of the Plaintiff’s post-trial motions.

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.

Wednesday, April 14, 2021



REMEMBER:  A week from today (i.e., April 21st) is Administrative Professional's Day.  Don't forget to thank those in your office who make your life easier.

Tuesday, April 13, 2021

Eastern District Court in Philadelphia Transfers Wal-Mart Slip and Fall Case to Middle District Court

In the case of Darrup v. Wal-Mart Stores East, LP, No. 2:20-CV-05450-JDW(E.D. Pa. Feb. 18, 2021 Wolson, J.), the court granted a Defendant store’s Motion to Transfer the Case from the Eastern District Federal Court in Philadelphia to the Middle District Court of Pennsylvania.

Judge Joshua D. Wolson began his Opinion by writing, "Philadelphia has much to recommend it. World class cuisine. Great universities. Gritty. But one thing that Philadelphia, and the Eastern District of Pennsylvania as a whole, lacks is any connection to this case."  See Op. at p. 1.

Judge Wolson noted that, in this case, the Plaintiff was "channel[ing] her inner W.C. Fields and argues she'd rather be in Philadelphia."  See Op. at p. 1.

According to the Opinion, the Plaintiff resided in Northumberland County and was alleging personal injuries as a result of a slip and fall that had allegedly occurred at a Wal-Mart store located in Northumberland County.  By the time the lawsuit was filed, the Plaintiff lived in Arizona and asserted that it would be more convenient for her to have to travel to Philadelphia for the litigation as opposed to a courthourse located in the Middle District of Pennsylvania.

The court found that everything about this case happened in the Middle District of Pennsylvania except for the Plaintiff filing suit in the Eastern District Court in Philadelphia.

The court noted that all of the relevant witnesses were located within the Middle District of Pennsylvania.

The court stated that, when a Plaintiff’s choice of forum has little or no connection to the operative facts of the case and, where the Plaintiff lives outside of the chosen forum, that Plaintiff’s choice of forum should receive little weight.

As stated, the court granted a Motion to Transfer the case up to the Middle District of Pennsylvania.

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

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.

Pennsylvania Superior Court Reverses Trial Court Decision to Transfer Venue of a Products Liability Case Out of Philadelphia County

In the case of Hangey v. Husqvarna Professional Products, Inc., No. 3296 EDA 2017 (Pa. Super. March 8, 2021) (en banc), the court reversed the trial court’s granting of Preliminary Objections on venue issues.

The court found that it was an abuse of discretion to change venue out of Philadelphia based solely on the Defendant conducting only de minimis business in that county.

The Superior Court noted that “regular” conduct of business does not mean “principal,” and a Defendant may perform acts regularly even though such acts are only a small part of its total activities.

On the venue question, the courts must determine whether the evidence, including the scope of the Defendant’s business, established that a Defendant’s contacts with the venue satisfied the quantity prong of the quality/quantity test.

The Pennsylvania Superior Court noted that the number and dollar figure of sales by the Defendant in Philadelphia, and the fact that the Defendant has an authorized dealer in Philadelphia to sell its products, is relevant to the determination of whether its contacts with Philadelphia satisfy the “quantity” prong of the venue analysis. The court additionally stated that he percentage of sales of a corporation in a venue is only one factor to be considered under this analysis.

Anyone wishing to review a copy of this Majority Opinion of this decision may click this LINK.  The Dissenting Opinion by Judge Stabile can be viewed HERE

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.

Friday, April 9, 2021

Cummins Mediation Services Can Help Bring Your Case to a Close


(570) 319-5899

Federal Court Addresses Validity of Direct Claims of Liability Asserted Against Trucking Company

In the case of Miller v. M.H. Malueg Trucking, Co., LLC, No. 2:20-CV-00413-RJC (W.D. Pa. March 8, 2021 Colville, J.), the court granted a Defendant trucking company’s Motion to Dismiss a Plaintiff’s direct negligence claim against the trucking company arising out of a motor vehicle accident after the court found that the Plaintiff had conceded that she had not pled facts sufficient to support a claim for punitive damages that could serve as the predicate for a direct negligence claim against that trucking company.

The court noted that the parties had previously filed a Stipulation agreeing that the Defendant driver was an agent of the Defendant trucking company.

The Plaintiff had alleged in her Complaint that the Defendant trucking company was vicariously liable for the driver’s negligence and was also liable for negligent hiring, training, monitoring, and supervising the driver, for failing to ensure PennDOT regulations were followed, and was also negligent for failing to maintain a proper driver safety program for its drivers.

The Defendant moved to dismiss all direct claims of liability and did not move to dismiss the vicarious liability count.

Citing the case of Sterner v. Titus Transp., 2013 WL 6506591 (M.D. Pa. 2013)[other citations omitted], the court held in this Miller case that the claims of direct corporate negligence was subject to dismissal when the agency relationship was admitted and when the Plaintiff had not pled a basis for punitive damages.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 25, 2021).

Wednesday, April 7, 2021

Jurisdiction Challenge Rejected Given that Defendant Company Was Registered in Pennsylvania as of the Date the Claim Was Filed

In the exposure to asbestos case of Data v. AO Smith Corp., No. 2:19-CV-00879-CRE (W.D. Pa. Feb. 11, 2021 Eddy, Mag. J.), a federal magistrate judge issued a Report and Recommendation it which it was recommended that the District Court deny a Defendant’s Motion to Dismiss the case based upon jurisdictional arguments.

The court ruled that Pennsylvania’s statute imposes general jurisdiction on all companies registering to do business in Pennsylvania is constitutional.

Notably, the court ruled that jurisdiction exists over a Defendant even for causes of action that arose prior to Defendant's registration in Pennsylvania as a foreign company so long as the corporation is so registered as of the time the lawsuit is filed.

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.

Friday, April 2, 2021

Snow/Ice is Not On/Of Real Estate for Real Estate Exception to Sovereign Immunity to Apply

Judgment was entered in favor of the Defendant in the case of Temple v. Housing Auth. of City of Meadville, No. AD 2020-243 (C.P. Crawford, Co. March 18, 2021 St. John, S.J.), which involved a slip and fall incident due to wintry conditions on the property of the Housing Authority of the City of Meadville. 

The Plaintiff allegedly fell on a driveway in her aunt’s housing complex due to snow that had allegedly come upon the driveway after being blown there by a snowblower operated by an employee of the Defendant.

The Housing Authority moved for summary judgment on the grounds that, as a Commonwealth of Pennsylvania agency, it had immunity from any tort claims under the Sovereign Immunity Act.

The Court emphasized within the opinion that the Plaintiff had conceded that the Housing Authority qualified as a Commonwealth entity and that the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8521, et seq., applied.

The Plaintiff attempted to have this case read as falling under the real estate exception to immunity for the Defendant.

The Court analyzed the “on/of” distinction  under the real estate exception under the Sovereign Immunity Act as it related to snow and ice that had accumulated on the Housing Authority’s property. 

The Court noted that the case law of Pennsylvania has not interpreted the language of the Act regarding a “dangerous condition of Commonwealth agency real estate” to include substances, like ice or snow, that were merely lying on the real estate. The Court noted that the inapplicability of the real estate exception was the same even if the snow came upon the surface by being thrown there by a snowblower operated by an employee.

Ultimately, the Court determined the Plaintiff offered no facts that could prove that the snow and ice derived, originated from, or had the Commonwealth realty as its source.  Accordingly, the real estate exception to the immunity provided by the Act was found not to be implicated by the facts of the accident.

As a result, the Court ruled the Plaintiff’s claims and evidence were insufficient to abrogate the Housing Authority’s immunity under the Sovereign Immunity act.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Brian J. Murren and Attorney Jon McAnney of the Lemoyne, PA law firm of Tucker Arensberg, P.C. for bringing this case to my attention.