Thursday, May 27, 2021

Factually Unsupported Allegations Asserted in a New Matter in a Med Mal Case Stricken



In the case of Arens v. Remick, No. 20-CV-21 (C.P. Lacka. Co. April 30, 2021, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a detailed Order addressing Preliminary Objections filed by Plaintiffs seeking to strike numerous paragraphs in the Defendants’ New Matter under an argument that the affirmative defenses asserted by the medical malpractice Defendants are legally insufficient and/or without the requisite factual specificity or support.

In his Order, Judge Nealon emphasized that Pennsylvania is a fact-pleading state and that pleadings must advise the opposing party of the claims or defenses being asserted and summarize the essential facts supporting those claims and/or defenses.

After reviewing the standard or review in addressing a claim that a pleading lacks the requisite factual support, the court found that certain allegations in the Defendants’ New Matter did not provide the Plaintiffs with adequate notice of the defenses being raised. The court also noted that the Complaint was devoid of any allegations that made some of the defenses raised in the New Matter even applicable to the case presented.

As such, the court struck certain paragraphs of the New Matter as being in violation of Pa. R.C.P. 1019(a), which governs the required contents of all pleadings. However, the court did allow the Defendants the opportunity to file an Amended New Matter with respect to the affirmative defenses at issue.

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

Boilerplate Affirmative Defenses Stricken



In the case of Greenspan v. Platinum Healthcare Group, LLC., No. 2: CV-05874-JDW (E.D. Pa. March 16, 2021 Wolson, J.) the court struck Affirmative Defenses from a Federal Court Answer filed by a Defendant in a case where the defendant failed to assert any allegations or cite to any facts or evidence that would give rise to a good faith basis to plead the defenses that were asserted.

The court found that the Defendant's Affirmative Defenses violated Rule 11 as they were pled with conditional language that indicated that the Defendant did not have evidence to support the assertion of the defenses at the time. Rather, the court seem to indicate that it felt that boilerplate defenses had been pled in the case.

While the court acknowledge that defense counsel only had a short time to investigate the case before the pleading deadlines, the court found that this did not excuse counsel from the requirement of having a good faith basis to assert Affirmative Defenses in an Answer. 

The court pointed out that defense counsel with limited time to investigate possible Affirmative Defenses could request an extension of time to file that Answer. The court stated that such request are routinely granted by Plaintiff’s attorneys and the courts as matter of courtesy.

The court additionally noted that the defendants have twenty-one (21) days for filing their Answer to file an amended Answer as of right under Rule F.R.C. P. 15.

The court also noted that defendants could thereafter request leave to file an amended Answer beyond the twenty-one (21) day period, which leave the court was required by the Rules to allow “when justice is so requires.”

In the Opinion, the court grandly stated that “its opinion will now be public record for counsel in this case and in future cases to use as a guide and pleading affirmative defenses.”

Given the court’s finding that the Defendant had violated Rule 11, the court issued the sanction of striking the Affirmative Defenses but did so without prejudice. The court noted that if the Defendant had a good faith basis to assert any Affirmative Defense, it could seek to assert them by filing an appropriate motion to amend its Answer.

The court ended the opinion by noting that “Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks.” The court noted that Rule 11 requires lawyers to give some thought to the assertions included in pleading before they are filed.

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


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

Tuesday, May 25, 2021

Summary Judgment Denied in Football Sidelines Injury Case



In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 13, 2021 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by the Defendant, Valley View School District, in a case in which the Plaintiff's decedent was standing along the sidelines of a high school football game and was hit by players who spilled onto the sidelines during a play, which caused the decedent to be propelled backwards, as a result of which he ultimately fell backwards and struck his head on an asphalt surface which bordered the playing field. 
The decedent unfortunately suffered injuries which ultimately resulted in his death approximately ten (10) days later. The decedent’s son was on the stand with the decedent’s grandson and witnessed the incident.

The Defendant, Valley View School District, offered several reasons in support of its Motion for Summary Judgment. The school district argued that, as a political subdivision, it was entitled to immunity under the Political Subdivision Tort Claims Act. 

The school district Defendant also asserted that it was entitled to judgment under the law of the no-duty doctrine. 

The Defendant additionally asserted that it was entitled to summary judgment under assumption of risk doctrine and/or that the Plaintiff had failed to establish that the Defendant was negligent as a matter of law. 

On the claims asserted by the decedent's son, the Defendant argued that the Plaintiff had failed to put forth facts sufficient to support a cause of action for negligent infliction of emotional distress.

The court addressed each of these arguments in term and denied all of them.  In the end, the school district’s Motion for Summary Judgment was denied.

In his Opinion, Judge Gibbons provides a thorough update on the current status of the law surrounding the no-duty doctrine and the immunity provided under the Political Subdivision Tort Claims Act.

Judge Gibbons also confirmed that the assumption of risk doctrine remains a valid defense under Pennsylvania law. After outlining the elements of that defense, the court found that the Defendant had not offered sufficient proof to compel the application of that doctrine. The court emphasized that there remains a “reluctance under Pennsylvania law to find that the assumption of the risk applicable unless it is quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted.” [citation omitted] [emphasis in original citation deleted here]

With regard to the claim for negligent infliction of emotional distress asserted on behalf of the decedent’s son, the court outlined the current elements of that law and found that issues of act prevented the entry of summary judgment.


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

Eastern District Court Holds That the Long Arm of the Law Can Only Go So Far in Terms of Personal Jurisdiction


In the case of Ruffing v. Wipro Ltd., No. 20-5545 (E.D. Pa. March 29, 2021 Bartle, J.), the Eastern District Federal Court granted a Partial Motion to Dismiss on jurisdictional grounds.   

In this employment action matter, the court found that non-Pennsylvania Plaintiffs lacked personal jurisdiction over a Defendant, which was a non-Pennsylvania company because the action involved only the non-Pennsylvania conduct of the Defendant. 


Notably, the court ruled that Pennsylvania cannot constitutionally subject an out-of-state Defendant to general jurisdiction in Pennsylvania simply based upon the fact that the company may have registered to do business in Pennsylvania.   


The Eastern District Court noted that the U.S. Supreme Court in Daimler AG v. Bauman, 571 U.S. 117, 125 (2014) prohibited such an expansive scope of general jurisdiction rules.   


The court in this Ruffing case noted that the United States Supreme Court decision in Bauman would become virtually meaningless if a state could mandate the exercise of general personal jurisdiction over every entity that did business within its border simply because that company had registered to do business in the state.   The Eastern District Court stated that Third Circuit precedent to the contrary was no longer valid since the United States Supreme Court handed down its decision in Bauman.   


Rather, a corporation must be “at home” in a jurisdiction to be subject to general jurisdiction in that state.   


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


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

Monday, May 24, 2021

Pennsylvania Superior Court Upholds Preclusion of Evidence of Industry Standards in Products Liability Case



In the products liability case of Sullivan v. Werner Company, No. 3086-EDA-2019 (Pa. Super. April 15, 2021 Stabile, J., King, J., and Pellegrini, J.) (Op. by Pellegrini, J.), the court upheld a trial court’s decision to preclude evidence of industry standards and the Plaintiff’s negligence.

According to the Opinion, this case involved a strict products liability action that was filed by the Plaintiff after he fell through his scaffold made by Werner Company and sold by Lowe’s companies. A jury determined that a design defect caused the accident and awarded the Plaintiff $2.5 million dollars.

On appeal, the manufacturer asserted that the trial court erred in precluding industry standards evidence. The manufacturer also asserted that it should have been allowed to argue that the Plaintiff’s negligence was the sole cause of the accident. The manufacturer additionally challenged the Plaintiff’s mechanical engineering expert’s opinion as lacking proper factual foundation.

On appeal, the court affirmed the jury’s verdict.

On the industry standards evidence, the Plaintiff filed a Pre-Trial Motion In Limine to bar the admission of any government of industry standard evidence at trial under an argument that the Pennsylvania courts have generally barred such evidence in strict liability cases and that that rule of law was unaffected by the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which erased the distinction between negligence and strict liability and products liability cases.

The Defendant manufacturer asserted the opposite view, arguing that, after Tincher, governmental and industry standards evidence was admissible in strict liability cases.

The trial court agreed with the Plaintiff’s position and granted the Motion In Limine.  As noted, the Pennsylvania Superior Court affirmed on appeal.

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

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh, PA law office of the Thomas, Thomas & Hafer for bringing this case to my attention.

Friday, May 21, 2021

Judge Julia K. Munley of Lackawanna County Addresses Service of Process Issues


In the case of Kadtka v. 81 Keystone, LLC, No. 2019-CV-7109 (C.P. Lacka. Co. May 6, 2021 Munley, J.), Judge Julia K. Munley of the Lackawanna County Court of Common Pleas addressed Preliminary Objections that raised the primary issue of whether or not the Plaintiff had made a good faith effort to notify the Defendant of the commencement of the litigation with the service of the Complaint.

According to the Opinion, the Defendant was asserting that the Plaintiff unduly delayed in completing service and engaged in non-compliance with the Rules of Civil Procedure. The Plaintiff countered that a good faith effort was made and that the Defendant allegedly evaded service.

After reviewing the current status of Pennsylvania law relative to the Lamp v. Heyman standard of review for the completion of service of process, including the Pennsylvania Supreme Court’s most recent pronouncement on the issues in the Gussom case, Judge Munley found that the Plaintiff had indeed made a good faith effort to complete service. [Click HERE to see the Tort Talk post on the Gussom case along with a link to that Pennsylvania Supreme Court Opinion].

In this Kadtka case, Judge Munley took into account that some of the delays with respect to the completion of service may have been attributable to the COVID-19 pandemic which the court acknowledged had had a significant impact upon lawyers, litigants, and the court system.

The court additionally encouraged the utilization of evidentiary hearings with regards to service of process issues as the court believed that the credibility of the claims and defenses with regard to service could be more fully addressed at an evidentiary hearing as opposed to the reliance upon submitted paperwork in the form of pleadings, affidavits or deposition testimony.

The court was also influenced to deny the Preliminary Objections on the basis of its findings that a technical non-compliance with the rules of service was excusable, particularly where the record confirmed that the Defendant received actual notice of the lawsuit and was not prejudiced by the delay in service.

The decision by Judge Munley is also notable in that the court rejected a Defendant’s Preliminary Objections in which it was asserted that, in this trip and fall case, the allegations by the Plaintiff that the exterior steps upon which the Plaintiff allegedly fell were “dangerous” and “unreasonably unsafe” were not sufficiently specific to allow the claims to go forward.  The court instead found that the Complaint as a whole put the defense on notice of the claims presented.

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

Wednesday, May 19, 2021

Pennsylvania Superior Court Upholds Application of Household Exclusion

The Pennsylvania Superior Court recently upheld a household exclusion in the case of Erie Insurance Exchange v. Mione, No. 1450 EDA 2020 (Pa. Super. 2021).  

According to the Opinion by the court in Mione, the Pennsylvania was involved in a motor vehicle accident while driving his motorcycle.  The motorcycle was insured by Progressive Insurance.  Under that policy, UIM coverage had been rejected by the Plaintiff.   


After this accident, the Plaintiff sought to recover UIM benefits from two (2) Erie Insurance policies, one of which was issued to the Plaintiff on another of his personal vehicles. The other Erie policy was issued to a family member who resided in the Plaintiff’s household relative to another personal vehicle.   


In this matter, the Plaintiff asserted that the Gallagher v. Geico decision rendered the household exclusion void and also asserted that the rejection of UIM coverage on the motorcycle was irrelevant to the question of whether the UIM coverage under the Erie Insurance polices applied.   


Notably, even acknowledging the Gallagher v. Geico decision, the Pennsylvania Superior Court in this Mione case acknowledged that “this area of the law is not particularly clear and straightforward.”   


After reviewing numerous household exclusion decisions, the Pennsylvania Superior Court in Mione stated that “Gallagher does not seem to invalidate household exclusions in all cases, despite Appellants’ suggestion to the contrary…. Instead, Gallagher…hold[s] that a household exclusion cannot be used to evade §1738’s explicit requirements for waving stacking.”   See Op. at p. 19.


The Pennsylvania Superior Court went on to note that the case before it did not involve a stacking issue given that the motorcycle in which the Plaintiff was injured did not have any UIM coverage upon which to stack the coverage from the personal automobile insurance policies that had been issued by Erie Insurance.  As noted above, the Plaintiff had rejected UIM coverage on his motorcycle policy with Progressive Insurance. 


In this case, the court ruled that the Plaintiff was attempting to use the Erie automobile insurance policies to “procure” UIM coverage in the first place.   


The court ruled that, because this case did not involve stacking issues, the Gallagher case did not apply.  Because the Gallagher case was found to be inapplicable, the court in this Mione case held that the household exclusion remained enforceable.   


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


In a humorous irony, in its Opinion, the Pennsylvania Superior Court scolded the trial court for utilizing lengthy single-spaced footnotes in its Opinion because doing so made the trial court's Opinion difficult to read. The Superior Court then goes on to utilize 14 lengthy single-spaced footnotes in its own appellate Opinion.


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.  I also send thanks to Attorney Benjamin P. Novak of the Lancaster, Pennsylvania law firm of Fowler, Hirtzel, McNulty & Spaulding, LLP, for bringing this case to my attention. 


Claim Based on Res Ipsa Loquitur Doctrine Rejected in Elevator Trip and Fall Case



In the case of Pyle v. Otis Elevator Co., No. 20-2393 (3d Cir. April 13, 2021) (Matey, J., Shwartz, J., Porter, J.) (Op. by Matey, J.)[Not Precedential], the Third Circuit Court of Appeals affirmed the entry of summary judgment in an elevator accident case.
According to the Opinion, an uneven elevator door allegedly caused the Plaintiff to trip and fall.    

In affirming the lower court decision, the appellate court reiterated the rule that the mere happening of an accident or injury does not establish negligence, inference or presumption of negligence, or a prima facie case of negligence. 

The court additionally ruled that a misleveled elevator, in and of itself, is not sufficient to satisfy the requirements of the res ipsa loquitur doctrine and does not necessarily imply negligent elevator maintenance. The court also found that the res ipsa loquitur doctrine did not apply here because the Plaintiff failed to rule out any non-negligent reasons for his injuries, such as losing his balance or moving too quickly.

The court also confirmed that, in an elevator accident case, the Plaintiff must show that the elevator was in a defective or dangerous condition that was discoverable by reasonable inspection.

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


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

Tuesday, May 18, 2021

Monday, May 17, 2021

Business Losses Due to Covid-19 Pandemic Not Covered


In the case of Chester County Sports Arena v. Cincinnati Specialty Underwriters Ins. Co., No.: 20-CV-02021-MMB (E.D. Pa. March 30, 2021, Baylson, J.), the court addressed a number of declaratory judgment complaints filed against a carrier asserting that the carrier had wrongfully denied coverage for the Plaintiff’s business losses related to the Covid 19 pandemic.  

The court found that dismissal was appropriate given the policies’ requirement of a “direct physical loss" before coverage would be implicated.  Court found that government orders in response to a virus simply do not fit this physicality requirement. 


The court more specifically noted that, under Pennsylvania law, clear and unambiguous terms like “direct physical loss”  must be given their plain meaning and, when there is no alteration to physical structure, Third Circuit precedent points in the direction of the finding of no physical loss sufficient to trigger coverage.  The Court found that to rule otherwise would be to expand the policy language beyond its plan meaning to encompass purely economic losses. 


As such, the court found that the Plaintiffs contention that they had suffered a covered loss in light of the Covid-19 pandemic failed.


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


I send thanks to Attorney Lawrence M. Silverman of the Philadelphia Pennsylvania Law Firm of Litchfield Cavo for bring this case to my attention.


Thursday, May 13, 2021

Defense Verdict Secured by Cummins Law in Lackawanna County Rear End Accident Case




Pleased to report that I secured a defense verdict in a rear end auto accident case yesterday in Lackawanna County.  

Negligence was admitted, causation was disputed.  The details follow:


Cholewka v. Restaino


Defense Verdict in a Rear End Accident Case



Date of Verdict: May 13, 2021


Court and Case No: C.P. Lackawanna, No. 2016-CV-3842


Judge: Margie Bisignani-Moyle


Type of Action: Third Party Auto Negligence


Injuries: Plaintiff alleged bilateral shoulder injuries.


Defense Counsel: Daniel E. Cummins of Cummins Law


Comment:



This personal injury civil litigation trial was held with Covid-19 social distancing measures in place in the Lackawanna County Court of Common Pleas.

The jury selection took place in a ballroom at the Scranton Cultural Center. All of the participants wore masks at these proceedings and the jurors were spread out in the large room. Attorneys were permitted by the Court to take off their masks when asking questions of the jurors. Sheriff’s deputies carried a microphone on a long handle and held the microphone up to the jurors’ mouths when they answered questions.

Once the jury of 12, plus two alternates, was selected the trial moved to Judge Margie Bisignani-Moyle’s courtroom on the second floor of the Lackawanna County Courthouse. The jurors were spread out in the area that used to be the gallery of the courtroom. The witness testified from what was the jury box. The jurors could either look at the witness directly or also see the witness more close up from TV monitors in the courtroom. The witnesses were allowed to take off their masks when testifying and the attorneys were allowed to take off their masks when speaking.

There were six men and six women on the jury.  Most of the jurors appeared to range in age from 45-59.  Two of the jurors appeared to be in their 30s.

One of the out-of-town lay witnesses for the defense was not able to get out of work to attend the trial.  The court accomodated the request to allow for that witness to be presented via Zoom.  The digital trial presentation company, Exhibit A, who was retained by the defense at trial assisted with that Zoom presentation.

This third party personal injury litigation matter arose out of a minor low speed, low impact rear-end tap of a motor vehicle incident that occurred almost (7) years ago at approximately 11:57 a.m. on July 2, 2014 on Jefferson Avenue in Scranton, Lackawanna County, Pennsylvania.

The then 55 year old Full Tort Plaintiff, Ronald Cholewka, was a front seat restrained passenger in a 2014 Chrysler 300 driven by a Paul Phillips. The Plaintiff’s vehicle was on Jefferson Avenue in Scranton, Pennsylvania and was stopped at a red light at the intersection of Mulberry Street. The Plaintiff was being driven by a car service to a medical appointment relative to his prior history of over 30 years of treatment for neck and back pain complaints dating back to a 1988 motor vehicle accident. The Plaintiff’s pre-existing conditions had also been aggravated as a result of a prior 1995 accident as well. 

At the same time and place, the Defendant, Theresa Restaino, was stopped in her 1999 Buick LeSabre on Jefferson Avenue behind the vehicle in which the Plaintiff was located. When the light turned green, Ms. Restaino thought that the vehicle(s) ahead of the one in which the Plaintiff was located had started to move. The Defendant took her foot off her brake but did not apply the gas. The Defendant allowed her vehicle to roll forward and the front of her vehicle tapped the rear of the vehicle in which the Plaintiff was located.

The Defendant described the impact as minimal and confirmed that her airbag did not deploy. Ms. Restaino also confirmed that she did not see any damage to the front of her vehicle or the rear of the vehicle in which the Plaintiff was located. The Defendant also confirmed that she did not require any repairs to her vehicle after the accident. Moreover, Ms. Restaino was not injured and required no treatment.

At the time of the accident, two friends of the Defendant located in a vehicle to the rear of the Defendant as they were following the Defendant to a location at the time. Those two witnesses testified at trial that they saw the Defendant’s vehicle roll forward but that any contact was so subtle that they asked each other if the Defendant's vehicle had even contacted the vehicle ahead. Those witnesses testified that they got out of their vehicle and went up to the two involved vehicles and confirmed that neither vehicle had any visible damage.

Photographs confirmed that there was no visible damage to either vehicles.


The driver of the vehicle ahead described the impact as significant but admitted that there was no damages to the vehicles as a result. That witness, who was admittedly not injured in the accident, passed away prior to trial from unrelated conditions. His deposition was read to the jury at trial.

The Plaintiff never got out of the vehicle at the scene. He asserted that he felt a pop in his back from the impact which he described as significant. He alleged that he could not feel his legs and thought that he had been paralyzed. He was removed by an ambulance crew and transported to the local emergency room. He was eventually treated and released.

At trial, the Defendant accepted responsibility for causing the accident but challenged the issues of causation and disputed whether the Plaintiff had been injured at all.

This Plaintiff had an extensive prior medical history that includes unrelated, multiple surgeries to many parts of the Plaintiff’s body and extremities. The Plaintiff’s prior medical history was also positive for conditions of an insulin dependent diabetes and coronary artery disease.

The Plaintiff confirmed that he had been totally disabled since 1988 for his persistently painful and limiting neck, back, and knee conditions, which disability continued up to the time of the subject accident. It was the Plaintiff’s allegation at his deposition in this matter that his neck and mid-back conditions had quieted down in the years leading up to this subject 2014 accident. However, he admitted that he was still having significant issues with regards to his low back in terms of pain and limitations by the time this accident occurred.

As noted, after the accident, the Plaintiff remained in the vehicle until help arrived. He was eventually assisted by the ambulance crew, placed on a stretcher and transported to the nearby Community Medical Center emergency room, a few blocks away.

Following the accident, the Plaintiff continued with his same pre-accident treaters for his ongoing neck and back pain.

Approximately two years and four months after the accident, the Plaintiff visited an orthopedic surgeon for treatment of left shoulder complaints. At that visit, the Plaintiff advised that doctor that his shoulder complaints had begun a few weeks before that visit. The Plaintiff also confirmed that he had not had any recent injuries.

Although the Plaintiff alleged in his Complaint that he was making claims for neck and back injuries, and did not mention any shoulder injuries in his Complaint, at trial, he stipulated to the granting of the Defendant’s non-suit motion on his neck and back claims as he wanted to instead pursue a claim for shoulder injuries.

After he rested his case at trial, the Plaintiff was allowed to amend his Complaint over the Defendant’s objection to instead state that he was pursuing a claim for bilateral shoulder injuries that required multiple surgical procedures which did not resolve his complaints. The Plaintiff’s theory was that he had sustained a left shoulder injury in the subject car accident but that his shoulder pain had been masked by his neck pain. The Plaintiff also asserted that his right shoulder problems, which had allegedly developed from overuse due to his left arm being in a sling from his surgeries, was also related back to the car accident.

The court denied the defense’s motion for a non-suit on the Plaintiff’s claims of shoulder injuries and allowed the case to proceed.  The court noted that the defense had defended against the Plaintiff's claims of shoulder injuries during the Plaintiff's case-in-chief and was, therefore, not prejudiced by the allowance of this amendment.

The Plaintiff relied upon the office notes of his shoulder surgeon as well as upon the reports of a PIP IME doctor, both of whom had opined in multiple records that the Plaintiff’s shoulder complaints were due to the subject accident. Rather than calling those out-of-state doctors as experts at trial, Plaintiff’s counsel retained a local physiatrist, Dr. Michael Wolk, to testify for the Plaintiff.

The defense confirmed on cross-examination of the Plaintiff’s medical expert that the Plaintiff’s surgeon, the PIP IME doctor, and the Plaintiff’s expert were all advised by the Plaintiff that the subject accident involved a high speed rear end accident. The defense also confirmed that the Plaintiff’s expert had not been provided with all of the medical records and also had not been provided with any films to review. It was additionally confirmed that the Plaintiff’s expert was not provided with any photographs of the vehicles to review or any of the deposition transcripts of the parties or witnesses.

The defense also asserted at trial that the Plaintiff regularly treated with his many pre-accident doctors following this accident and, for two and half years, never mentioned his shoulders as being problematic. With respect to the Plaintiff’s theory that his left shoulder pain being masked by his neck pain, the defense showed through the records that the Plaintiff’s primary complaints of pain were not only to the right side of his body but were also down in the mid-back area.

The defense called orthopedic surgeon, Dr. Thomas Allardyce, as an expert witness. Dr. Allardyce had issued an IME report in which he opined that the Plaintiff had sustained a soft tissue back injury as a result of the accident. The defense medical expert also opined that the Plaintiff’s alleged shoulder injuries and treatment were not related to the incident. The defense expert also confirmed that right-sided mid-back pain would not mask left shoulder pain or prevent a person from realizing that they had a left shoulder injury.

At trial, neither the Plaintiff’s expert nor the defense expert were questioned with respect to whether the subject accident impacted the Plaintiff’s neck and back condition. Rather, the Plaintiff’s expert limited his opinion to confirming that the Plaintiff’s shoulder complaints and concluded that they were related to the accident. The Plaintiff’s expert also testified that, due to the Plaintiff’s ongoing shoulder problems, the Plaintiff would require ongoing treatment into the future that would cost over $875,000.00.

The defense purposely avoided having the the IME doctor testify as to his IME opinion that the Plaintiff had sustained a minor soft tissue injury to his mid-back as a result of the incident.  Plaintiff's counsel did not bring this out on cross-examination.  Rather, the defense focused the questioning of the defense expert on that expert's opinion that the Plaintiff's shoulder injuries were not related to this accident.

The defense medical expert expanded upon his opinion that the Plaintiff’s shoulder complaints, treatments and surgeries were not related to the subject accident. The defense expert additionally opined that the Plaintiff’s bilateral shoulder conditions instead involved degenerative joint disease and degenerative rotator cuff tears that were all unrelated to the subect accident.

At trial, it was the defense assertion that this matter arose out of a tap incident from seven years ago.  The defense theory was that this matter involved a fender bender incident as a result of which neither fender was bent and no one was injured.  

The defense also asserted that it defied common sense to assert that the Plaintiff's shoulder complaints, which did not appear in the records until a first note that was from two years and four months after the accident, were related to this minor incident.

In terms of the Plaintiff's argument that the Plaintiff was an Eggshell Plaintiff, the defense argued in closing argument that even Humpty Dumpty sat on a high wall and had a great fall.  Analogizing to this case involving a tap of an incident and an over 2 year gap in any complaints by the Plaintiff, it would have been as if Humpty Dumpty were sitting on the ground and rolled onto his side and was attempting to assert that two cracks on his shoulders that had appeared two years after the fact related back to the time he had rolled onto his side two years before.

The Defendant was covered by an automobile insurance liability policy providing liability limits of $100,000 per person, $300,000 per occurrence.

Over the years prior to trial, the Plaintiff continually demanded the policy limits. On the eve of trial, the Plaintiff demanded $75,000. The defense had a long-standingin offer of $20,000 to settle on the table.

At trial, liability was admitted. The jury deliberated for only 35 minutes before returning its verdict in favor of the Defendant after finding that the Defendant’s negligence was not a factual cause of the Plaintiff’s alleged injuries.



The defense retained Exhibit A to assist with a visually compelling powerpoint presentation to drive the defense theory home to the jury.  I thank Leah Kane, JP Cardoni, and Joe Cardoni for their excellent work and highly recommend their services for digital trial presentations and videotaped trial depositions.




Issues of Fact Preclude Entry of Summary Judgment in Limited Tort UIM Case



In the case of Depretis v. State Farm Mut. Auto. Ins. Co., No. 2:20-CV-02193-JP (E.D. Pa. April 14, 2021 Padova, J.), the court denied a carrier’s Motion for Summary Judgment based upon the Plaintiff’s selection of the limited tort option in an underinsured motorist benefits matter.

After reviewing the current status of the law regarding the standard of review with respect to the limited tort question and whether or not a Plaintiff sustained a serious injury as a result of the subject accident, the court rejected the defense argument that the Plaintiff’s case, at best, only showed that the Plaintiff suffered a minor aggravation of pre-existing injuries to his neck and shoulder. The defense argued that, although the Plaintiff testified as to an aggravation of his previous injuries to his neck and shoulder, the medical records allegedly showed that the Plaintiff was suffering from the same impairments shortly before the accident occurred.

The defense also asserted that the absence of any evidence showing any serious damage to the Plaintiff’s vehicle (a dent to the rear bumper that the Plaintiff did not have repaired) supported the defense argument that the Plaintiff did not suffer any serious impairment of bodily function as a result of the subject accident. The court noted that it would draw an adverse inference that the Plaintiff’s vehicle did not sustain serious damage given that the Plaintiff failed to produce photographs of the vehicle’s damages and failed to explain the reason for his failure to produce that information.

The defense additionally relied upon an IME report in support of its limited tort defense.

The court noted that the Plaintiff had otherwise presented sufficient medical evidence and testimony to create a genuine issue of material fact as to whether or not he sustained a serious injury as a result of the subject accident. As such, the question was left for the jury to consider.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 29, 2021).

Issues of Material Fact Exist On Whether Plaintiff Properly Reported Uninsured Motorist Accident to Police



In the case of Calestini v. State Farm Mut. Auto. Ins. Co., No. 3:19-CV-01995 (M.D. Pa. April 13, 2021 Saporito, M.J.), the court addressed a Motion for Summary Judgment filed by the carrier in an uninsured motorist case on the issue of whether or not the underlying motor vehicle accident had been properly reported to the police as required under the policy.

According to the Opinion, the Plaintiff did not report the accident to the police on the date of the incident. The Plaintiff did report the accident, in person, to his insurance agent within six (6) days of the accident.

The Opinion also confirms that Plaintiff’s counsel reported the accident to the police after meeting with his client, which was approximately 106 days after the accident.

The court denied the carrier’s Motion for Summary Judgment after finding that there genuine issues of material fact presented on the issue of whether the Plaintiff reported the accident to the police in light of the evidence that the Plaintiff had reported the incident to his insurance agent and in consideration of the Plaintiff’s alleged learning disability and associated issues.

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


I send thanks to Attorney James J. Conaboy, of the Scranton, Pennsylvania law firm of Abrahamsen, Conaboy & Abrahamsen for bringing this case to my attention.

Wednesday, May 12, 2021

Lycoming County Court Precludes Expert Testimony Regarding Future Medical Expenses in MVA Case; Also, Limited Tort Motion Denied



In the case of Swank v. Greenaway, No. 19-CV-1830 (C.P. Lyc. Co. March 15, 2021 Linhardt, J.), the court issued a detailed Order regarding issues raised in Pre-Trial Motions In Limine by a Defendant in a limited tort motor vehicle accident case.

On one issue, the Defendants sought to preclude two of the Plaintiff’s expert witnesses from testifying at trial regarding the estimated cost of future care. The Defendants asserted that these experts based their opinions on insufficient methodology and data that was inherently unreliable. More specifically, the Plaintiff’s experts projected the future costs of the Plaintiff’s medical procedures based solely upon pricing data secured from Fairhealth.org.

The court noted that Fair Health was a non-profit entity that collected data and managed a database of privately billed health insurance claims. The court held that the data at issue could not be the sole basis for an expert opinion on future medical costs given the issues with how Fair Health came to reach its final calculations and data.

As such, the Defendant’s Motion In Limine regarding information secured from Fairhealth.org was granted.

In the Defendant’s second Motion In Limine, the Defendants sought to preclude the Plaintiff from pursuing non-economic damages based upon an argument that the Plaintiff had elected the limited tort option and had not established that a serious injury had been suffered.

The court noted that the Plaintiff alleged that she sustained a herniated disc and shoulder injuries as a result of the accident, which injuries allegedly affected her ability to perform her everyday activities including chores, self-care, hobbies, personal relationship activities, and work activities.

The court denied this Motion and stated that the issues should have raised by way of a Motion for Summary Judgment. In any event, the court found the factual issues led the court to conclude that reasonable minds on a jury could differ on the issue of whether or not the Plaintiff sustained a serious injury. As such, the Defendant’s second Motion In Limine was denied.

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


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






Monday, May 10, 2021

Judge Leeson of Eastern District Court Confirms No Direct Claim of Liability Against Trucking Company Recognized in Certain Cases




In the case of Carson v. Tucker, No. 5:20-CV-00399 (E.D. Pa. March 30, 2021 Leeson, J.), Judge Joseph F. Leeson, Jr. of the Eastern District Federal Court granted a Defendant trucking company’s Partial Motion for Summary Judgment.

This case arose out of a motor vehicle accident involving two (2) tractor trailers.

In the Motion before the court, the trucking Defendant’s Motion for Partial Summary Judgment was being considered in a case where the Plaintiff filed negligence claims including both vicarious liability and direct liability claims. 

The trucking Defendants sought summary judgment only on the direct liability claims.

Judge Leeson noted that, under Pennsylvania law, in addition to vicarious liability for that actions of its employees, a corporation may also be subject to direct liability for a negligent entrustment, instruction, supervision, monitoring and hiring of its employees. 

However, Judge Leeson noted that, under the standard “nearly universally adopted” by federal district courts applying Pennsylvania law, a Plaintiff’s direct liability claim against the Defendant driver’s trucking company employer could not survive where the employer had admitted an agency relationship with the driver and where the Plaintiff did not have a viable claim for punitive damages. 

The court found that the Plaintiff’s claim of direct liability against the trucking company therefore failed as a matter of law under the circumstances presented in this case.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 15, 2021).

Friday, May 7, 2021

Judge Nealon Addresses Issues of Proper Venue for a Med Mal Case


In the case of Champi v. Geisinger Wyoming Valley Medical Center, No. 19-CV-1780 (C.P. Lacka. Co. April 14, 2021 Nealon, J.), the court addressed issues regarding proper venue in a medical malpractice action.

According to the Opinion, the Plaintiffs filed this medical malpractice action against a Lackawanna County hospital as well as a Luzerne County hospital alleging negligent care at the different hospitals from the different counties.

The court noted that, under Pa. R.C.P. 1006(a)(1) and (c)(2), it is provided that a malpractice case may be brought in a county where the cause of action arose and that an action asserting joint and several liability against multiple Defendants may be filed in any county where venue may be laid against any Defendant. Under this rationale, venue was noted to have been proper in Lackawanna County at the time this suit was commenced.

In this matter, following the completion of discovery and the production of expert reports, the Plaintiffs voluntarily discontinued their malpractice claims against the Lackawanna County hospital three (3) months prior to trial and that hospital was dismissed as a named Defendant.

In response, the Luzerne County hospital filed a Petition seeking to transfer venue to Luzerne County on the basis that venue was no longer proper in Lackawanna County. In the alternative, that Luzerne County hospital filed a Petition to Transfer Venue to Luzerne County under forum non conveniens grounds under Pa. R.C.P. 1006(d)(1).

Judge Nealon noted that the questions of improper venue was determined by the identity of the parties at the time the case is initiated. For that reason, the court noted that a venue challenge is waived unless it is raised by Preliminary Objections. In this case, since venue was proper in Lackawanna County at the time the case was initiated, the court found that venue remain proper despite the voluntary dismissal of the only Lackawanna County Defendant.

Judge Nealon otherwise that, any concern or allegation that the Plaintiff may have initially included an uninvolved healthcare provider as a named Defendant in order to secure proper venue in a particular or desired forum is adequately addressed by the Certificate of Merit requirements which were designed to confirm that the claims filed were of arguable merit.

On the issue of the petition to the court to transfer the case under the forum non conveniens doctrine, after applying the standard of review in that regard, the court noted that there is only a 20 mile distance between the Lackawanna County Courthouse and the Luzerne County Courthouse and that, given the fact that the trial was scheduled to commence in less than three (3) weeks following the filing of the motion, the court found that the Luzerne County hospital had not satisfied its burden of demonstrating that the Plaintiffs’ chosen venue was oppressive or vexatious to that hospital.

As such, the Petitions filed by the Luzerne County hospital were denied.


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

Motion to Reinstate Punitive Damages in a Med Mal Case on the Eve of Trial Denied



In the case of Keyes v. Abington Manor, No. 16-CV-3024 (C.P. Lacka. Co. March 26, 2021 Nealon, J.), the court issued a detailed Order deciding a Plaintiff’s Motion to Amend a Complaint in order to reinstate a claim for punitive damages in this medical professional liability action which was scheduled to commence trial ten (10) days after the motion was filed.

The case involved claims of professional negligence against a skilled nursing facility.

Earlier in the same case, the same court (but different judge) had sustained Preliminary Objections to the Plaintiff’s claims for punitive damages. However, in that Court Order it was indicated that, if after the completion of discovery there was evidence that warranted punitive damages, the Plaintiff could file a motion to amend the Complaint to include such claims.

After reviewing the law of Pennsylvania as well as the MCARE Act regarding punitive damages, the court noted that the Defendants would have to be chargeable with willful, wanton, or reckless conduct in order for punitive damages to apply. After reviewing the record before the court, the court did not find such evidence to support these types of claims.

As the court found that the record did not contain sufficient evidence to demonstrate a triable issue in order to submit the punitive damages claim to a jury, the Plaintiff’s Motion seeking to amend the Complaint to reinstate claims for punitive damages was denied.

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

Thursday, May 6, 2021

Fitness Club's Exculpatory Clause Upheld to Defeat Plaintiff's Personal Injury Claim


In the case of Cifarelli v. RKKB Capital Partners Corp., No. 9626-CV-2019 (C.P. Monroe Co. March 1, 2021 Zulick, J.), the court granted a Defendant fitness facility’s Motion for Summary Judgment in a matter in which a Plaintiff fell while using a treadmill.

According to the Opinion, the Plaintiff was using a treadmill when the treadmill mat slipped off its track, causing the Plaintiff to fall and suffer injuries.   


The Plaintiff filed suit against the gym. In its Answer and New Matter, the gym raised a defense of a release. 


According to the Opinion, the Plaintiff had signed a membership agreement in which she agreed to release the fitness center from liability for injuries she suffered on the premises due to negligence.   



Judge Zulick noted that, in a number of cases involving fitness club agreements, the Pennsylvania appellate courts have consistently held that exculpatory provisions violate public policy only when they involved a matter of interest to the public or the state.   The court cited examples such as cases involving employer/employee relationships, public utilities, common carriers, and hospital. 


The court noted that the Plaintiff had signed a membership agreement for a gym or health club.  The court noted that the Plaintiff was free to refuse to sign the release and to look elsewhere for fitness activities.   


By signing the agreement, the Plaintiff agreed that she understood that she was giving up important legal rights and that the contract would be a full release of liability for injury.   


The court also rejected the Plaintiff’s attempt to get around the release by arguing reckless conduct.   While the court agreed that an attempt in a release to avoid liability for reckless conduct is not enforcement as a violation of public policy in Pennsylvania, the case at hand did not contain facts supporting a claim of reckless conduct.  


As such, 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 23, 2021). 


I also send thanks to Attorney Daniel D. Stofko of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.



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Court Addresses Applicability of Mediation Privilege (42 Pa.C.S.A. Section 5949)


Did you know that there was a provision in the Judicial Code codifying the rule that information exchanged at mediations should be treated as confidential by all parties involved?

In the case of Lee & Associates v. Conewago Industrial Park Associates, No. 2018-00757 Civil (C.P. Cumb. Co. Feb. 8, 2021 Peck, J.), the court addressed the concept of a mediation privilege in the context of a Motion to Compel Discovery filed by a Plaintiff in a civil action in which a commercial realtor was suing a landowner for commissions allegedly earned in connection with the sale of two (2) lots owned by the Defendant.   

In this case, the Plaintiff’s attorney sought the discovery of documents signed by persons where not parties to a mediation.   


Under the mediation privilege, all communications and documents shared during a mediation are considered to be privileged from disclosure outside of the mediation proceedings.  See 42 Pa. C.S.A. Section 5949.


The court ruled that the mediation privilege did not apply to the case at hand. As such, the Defendant was compelled to provide discovery with respect to the commissions at issue.   


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


I send thanks to Attorney Thomas E. Brenner of the Harrisburg, Pennsylvania law firm of Caldwell & Kearns, P.C. for bringing this case to my attention.  

Wednesday, May 5, 2021

Dead Man's Rule Reviewed By Pennsylvania Superior Court


In its latest pronouncement on the Dead Man’s Act, 42 Pa. C.S.A.  §5930, the Pennsylvania Superior Court, in the case of In re estate of Cerullo, 2020 Pa Super 2007 (Pa. Super. Feb. 25, 2021 Stabile, J., Nichols, J., Colins, J.) ( Op. by Stabile, J.), found that the Act precluded testimony by a spouse and several witnesses in an evidentiary hearing on an objection to a first and final account of an estate.  The court went on to rule that, without such testimony, there is insufficient evidence to support a claim of a gift made by the deceiving.  


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


Source:  “Court summaries,” by Timothy L. Clawges of the  Pennsylvania Bar News (April 5, 2021). 


Insufficient Lighting Found To Fall Under Real Estate Exception to Sovereign Immunity Where Tree Blocks Light from Light Pole


In the case of Wise v. Huntingdon County Housing Dev. Corp., No. 97 MAP 2019 (Pa. April 28, 2021 (Majority Op. by Baer, J.), the court ruled that insufficient lighting on a Commonwealth property relative to a slip and fall event could constitute a “dangerous condition” of the property for purposes of the real estate exception of sovereign immunity under 42 Pa. C.S.A. §8522(b)(4).   

According to the Opinion, the Plaintiff alleged that there was insufficient lighting on the property that occurred because of the location of a light pole near a tree, which was blocking the light from the light pole.  


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


The Concurring Opinion by Justice Donohue can be viewed HERE.


The Concurring Opinion by Justice Wecht can be viewed HERE.



Federal Middle District Court Addresses Issues of Alleged Hazing and the Applicablity of an Arbitration Agreement on Such Allegations

In the case of Jean v. Bucknell University, No. 4:20-CV-01722 (M.D. Pa. April 16, 2021 Brann, J.), the court granted Bucknell University’s Motion to Dismiss a Plaintiff’s Complaint arising out of allegations that the Plaintiff was hazed during an event on campus.   

The Plaintiff alleges that, after the alleged hazing events, Bucknell University attempted to keep word as to what happened within the campus walls in an effort to avoid the publicity associated with taking adverse or disciplinary action against the students involved or the fraternity involved.   


In his Complaint, the Plaintiff asserted three claims against Bucknell, including claims for hazing, negligence, and negligence per se.   


Bucknell University filed a Motion to Dismiss under F.R.C.P. 12(b)(6).   


Judge Matthew W. Brann noted that, under the Twombly/Iqbal analysis, in order to survive a Motion to Dismiss, “a Complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”   See Op. at 7


The court went on to note that “[a] claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.”   Id.   


After reviewing the case before it, the court concluded that Bucknell did not owe a duty to the Plaintiff under the circumstances presented.   The court rejected the Plaintiff’s request that the court articulate a new duty encompassing Bucknell’s conduct in this case.   It appeared to the court that the duty that the Plaintiff’s sought to have imposed was to require colleges to regulate and control fraternities that the college specifically knows are likely to engage in hazing of pledges.   The court rejected the Plaintiff’s request for the creation of such a duty.   


The court also rejected the Plaintiff’s request that a duty be imposed upon the university under various sections of the Restatement (Second) of Torts.   


The court additionally dismissed the Plaintiff’s claims for hazing and negligence per se, both of which claims were predicated upon Bucknell University’s alleged violation of Pennsylvania’s anti-hazing statute.   


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


I send thanks to Attorney Owen Coleman of the Law Offices of Harry Coleman in Carbondale, Pennsylvania for bringing this case to my attention.


___________   


In the case of Jean v. Bucknell University, No. 4:20-CV-01722 (M.D. Pa. April 16, 2021 Brann, J.), Judge Matthew W. Brann, issued a separate decision in this case addressing various Motions to Compel Arbitration in a case involving hazing allegations.  


The court noted that every student who receives a bid to join the fraternity must a complete a new member registration form on the fraternity’s website.  Under that document, the new member consented to mandatory arbitration of any legal claims or disputes between the member and the fraternity.   


In this decision, the court addressed various issues on whether the mandatory arbitration provisions should be imposed upon the parties given that a separate personal injury litigation was also pending.   


In a 50 page Opinion, the court declined to sever any unconscionable terms of the arbitration agreement and instead ruled that the agreement should be allowed to stand.   In the end, however, the court denied the various Motions to Compel Arbitration.   


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




I send thanks to Attorney Owen Coleman of the Law Offices of Harry Coleman in Carbondale, Pennsylvania for bringing this case to my attention.   


Tuesday, May 4, 2021

CELEBRATING 12 YEARS OF TORT TALK



 Tort Talk is 12 years old today.  It was on May 4, 2009 that I wrote the first Tort Talk blog post.


Over 3,200 posts later and 2,870,047 views later, Tort Talk is still going strong thanks to your support and readership for which I am grateful.


THANK YOU!!






Monday, May 3, 2021

Claims of Recklessness Based Upon Following Too Closely in a Construction Zone Allowed to Proceed



In the case of Crowell v. PSX, Inc., No. 2020-00551-TT (C.P. Chester Co. Oct. 26, 2020 Tunnell, J.), the court addressed Preliminary Objections filed by a Defendant driver against a Complaint in a motor vehicle accident case in which the Plaintiff alleged reckless conduct.

The court noted that this matter involved a rear-end accident that occurred in an area where there was ongoing construction.

The Defendant driver filed Preliminary Objections against the Plaintiff’s claims of recklessness which were based upon an allegation that the Defendant had failed to maintain a safe distance and was following the Plaintiff’s vehicle more closely than was reasonably prudent under the circumstances presented.

The court found that this alleged conduct could plausibly qualify as reckless conduct. The court noted that following too closely could involve mere inattentiveness or, alternatively, such conduct could be purposeful.

The court noted that this accident occurred in an area where roadwork was occurring and that driving in such areas generally required drivers to exercise a heightened degree of care. Under the legal standard with respect to addressing Preliminary Objections, the court noted that it had to draw all reasonable inferences in favor of the non-moving party.  Under this standard, the court overruled this Preliminary Objections and allowed the claims of recklessness to proceed.

The court also otherwise found that a general allegation by the Plaintiff that the Defendant “failed to use due care under the circumstances” was overly broad and failed under Pa. R.C.P. 1019(a) to describe what exactly the Defendant failed to do. The court also found that these allegations were mere legal conclusions. The court sustained the Defendant’s Preliminary Objections and struck this overly broad language found in the Plaintiff's Complaint.

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


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