Friday, December 30, 2022

ARTICLE: 2022 Year-End Review: Use of Zoom Becomes the Norm, Several Law Changes

 Here is a republication of my year-end review article outlining the important trends and cases from over the past year in Pennsylvania civil Litigation matters.  The article was published in the Pennsylvania Law Weekly on December 22, 2022 and is republished here with permission.


2022 Year-End Review: Use of Zoom Becomes the Norm, Several Law Changes


By Daniel E. Cummins

December 22, 2022, Pennsylvania Law Weekly


As the world came out of this side of the COVID-19 pandemic in 2022 with many changes, so did the practice of law in Pennsylvania. The past year has confirmed, much to the satisfaction of many lawyers, parties, witnesses and judges, that the new widespread use of advanced communication technologies (ACT) like Zoom in litigation matters is here to stay. Moreover, 2022 marked another year of changes in the law that favored plaintiffs in their efforts to secure recovery within the Pennsylvania court systems.

Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.

Zooming Into the Future

Without question, the use of Zoom for minor court conferences as well as for depositions, at which a witness’s demeanor and credibility can still be assessed, has fostered the interest of judicial economy and has advanced the efficiency of the practice of law as a whole.

While large big city law firms have attempted to push back against this now entrenched and favorable advancement in the practice of law, the loss of hundreds of billable hours from travel time lost due to the increased use of Zoom in civil litigation matters is not a valid reason to go back to the ways of old. Gone are the days of lawyers inefficiently and expensively billing clients for driving to a court an hour each way and then walking 20 minutes each way from a parking garage in order to attend a simple 10 minute court conference.

According to a recent Sept. 27, 2022, article by Aleeza Furman of the Pennsylvania Law Weekly titled “Rules Committees Discontinue Proposals to Expand Remote Tech in Pennsylvania Courtrooms,” in January, five of the Pennsylvania Supreme Court’s eight procedural rules committees had submitted proposals for change to rules of procedure to cover the use of ACT in their respective divisions. Regrettably, the Pennsylvania Supreme Court missed a great opportunity for uniformity across the commonwealth in this regard when all of those proposals were inexplicably discontinued in September. Hopefully, the Pennsylvania Supreme Court will see fit to override that decision and will not stand in the way of the county courts of common pleas in enacting local rules regarding the use of ACT. In 2023, look for the county common pleas courts to attempt to enact their own proposed local rules to codify the permissible scope and parameters of the continued use of Zoom for court proceedings, some of which local rules proposals are already before the Supreme Court for consideration.

Business Interruption Coverage Cases

In 2022, while the pandemic waned business interruption insurance coverage disputes continued to work their way through the court system.

Under the business interruption cases, business owners who had been shut down by governmental closure orders during the COVID-19 pandemic are pursuing business interruption coverage under the insurance policies covering their company for losses sustained as a result.

Insurance company defendants have continued to prevail with their defenses available under their policies. Several courts have ruled that, where the presence or suspected presence of the virus that causes COVID-19 at a business property did not materially alter the property in such a way as to constitute a “direct physical loss of damage,” business owners were not entitled to secure insurance benefits under their business interruption business coverage. See Hirschfeild-Louik v. Cincinnati Insurance, PICS Case No. 22-1259 (W.D. Pa. Oct. 24, 2022 Hornak, J.).

Some of those same courts also found in other cases that the business owners’ requests for coverage under these circumstances were also barred by the plain and unambiguous virus exclusions found in the policies. See In re Erie COVID-19 Business Interruption Protection Insurance Litigation, No. 1:21-mc-1 (W.D. Pa. Oct. 14, 2022 Hornak, J.). It is anticipated that these business interruption coverage cases will work their way through the courts and possibly even up the appellate ladder in 2023.

Lingering Impact of Pandemic on Litigation

In 2022, the COVID-19 pandemic also made its lingering presence known by way of parties seeking to use the pandemic in legal arguments in an effort to secure a favorable decision on a variety of civil litigation issues.

In the case of Bellan v. Penn Presbyterian Medical Center, 271 A.3d 508 (Pa. Super. Feb. 22, 2022), the Pennsylvania Superior Court rejected a plaintiff’s argument that the closure of a defendant’s medical office during the pandemic should have served as an equitable reason to allow a plaintiff more time to complete service in a medical malpractice case. In Bellan, the Superior Court affirmed a trial court’s dismissal of a plaintiff’s medical malpractice complaint with prejudice based upon service of process issues.

In the Bellan case, the record confirmed that the plaintiff did not reinstate the complaint after the initial 30-day period expired and that the plaintiff did not attempt service thereafter until five months later, which additional effort was by improper means. As such, in addition to rejecting the COVID-19-based argument by the plaintiff, the court in Bellan also found that the plaintiff failed to make a good faith effort to complete service.

The defense bar also ran into difficulty in 2022 in attempting to rely upon the pandemic to further a defense favorable argument. In at least two separate decisions over the past year, the courts of Pennsylvania have rejected arguments by defense counsel that the time that the courts were closed due to COVID-19-related judicial closure Orders should be carved out of the delay damages calculations following the entry of a verdict. See Getting v. Mark Sales & Leasing, 274 A.3d 1251 (Pa. Super. 2022); Yoder v. McCarthy Construction, May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.).

These courts noted that the delay damages rule found at Pa.R.C.P. 238 is designed to encourage settlement negotiations between the parties. The courts essentially noted that, while the courts may have been closed, which may have resulted in some delays in the matter, nothing prevented the parties from continuing to pick up the phone or emailing one another in a continued effort to attempt to negotiate a settlement in the interim.

These courts reiterated the mandate of Rule 238 that the only time periods that may properly be carved out of the delay damages calculations are those periods of time where the plaintiff was the cause of the delay and where there is a a case under which the plaintiff secures a jury verdict that is no more than 125% a previously submitted settlement offer.

Rule Changes of Note

There were several notable rule changes issued by the Pennsylvania Supreme Court that went into effect over the past year.

On April 1, an amendment to Pa.R.C.P. 223.2, titled “Conduct of the Jury Trial. Juror Note Taking,” became effective. The rule on juror note taking was expanded to allow for jurors to now take notes during the opening statement and closing argument. The new amendments also provide that a trial court judge is no longer able to prohibit juror note taking in trials of less than two days’ duration.

On July 1, another notable rule change went into effect, this one applicable to appeals from courthouse arbitrations. This rule change amended the monetary cap noted under Pa.R.C.P. 1311.1, titled “Procedure on Appeal. Admission of Documentary Evidence.”

Under the old rule, the parties could agree that, on an appeal from a courthouse arbitration, the amount that a jury could award on the case would be up to $25,000 and that the case would proceed primarily on documents in lieu of expert testimony.

Under this new amended Rule 1311.1 handed down by the Pennsylvania Supreme Court, plaintiffs will now have the benefit of higher caps at such arbitrations. The amended rule provides that the monetary limit on arbitration appeals in civil litigation matters is the “amount equal to the jurisdictional limit of the judicial district in which the action was filed.”

Most county courts have a higher jurisdictional limit, typically amounting to $50,000. Going forward, given that there are differing jurisdictional limits in different counties, civil litigators should make a mental note to check the jurisdictional limit applicable to the particular county in which the case is pending before agreeing to a Rule 1311.1 appeal from an arbitration award.

Another plaintiff-friendly rule change that was handed down in 2022 by the Pennsylvania Supreme Court will go into effect on Jan. 1, 2023. On that date, amendments to Pa.R.C.P. 1006, 2130, 2156 and 2179 venue rules will become effective and will allow a medical malpractice plaintiff to file their lawsuit in any county where the medical provider regularly conducts its business or has significant contacts.

Given that, under the old rule, which was in place for the past 20 years, plaintiffs could only bring suit in the county where the medical treatment was completed, this amendment handed down by the Pennsylvania Supreme Court this year greatly expands the plaintiffs’ abilities to engage in favorable forum shopping for their medical malpractice claims.

Lessons in Proper Pleading

Over the past year, several notable decisions were handed down that provide lessons in proper pleading in civil litigation matters.

Lessons in complaint drafting were provided by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Gowden v. Pennsylvania Department of Transportation, No. 21-CV-3046 (C.P. Lacka. Co. March 31, 2022). In Gowden, Nealon confirmed that, under the mandates of Pa.R.C.P. 1019, each defendant is entitled to be separately apprised as to the allegations asserted against that particular defendant. As such, generalized lump sum pleadings in the body of the complaint against “all defendants” were ruled to be improper.

Nealon also held that lumping all of the defendants under a single count of liability in the complaint was improper under Rule 1019. The court held that each defendant is entitled to have the claims asserted against it set forth in separate counts in the complaint for the sake of clarity and in order to be fully apprised of the claims presented.

Another repeatedly presented lesson in proper pleading handed down by the courts over the past year confirmed that, wherever a plaintiff alleges a violation of a statute, ordinance, or regulation, the plaintiff is required to provide the citation to that statute, ordinance, or regulation in the complaint.

In the federal court case of trucking accident case Fuhrman v. Mawyer, No. 1:21-CV-02024 (M.D. Pa. June 28, 2022 Kane, J.), the plaintiff generally alleged violations of Federal Motor Carrier Safety Regulations. The court ruled that where a plaintiff asserts that a defendant violated statute or regulation, the plaintiff should cite to that statute or regulation. Given that the plaintiff’s complaint in this case was deficient in this regard, the court granted the defendant’s F.R.C.P. 12(e) motion for a more definite statement but allowed the plaintiff the right to file an amended complaint to correct the error.

A similar ruling was issued in the state courts. In the premises liability case of Comerford v. Burrier, No. 20-CV-1368 (C.P. Lacka. Co. July 22, 2022 Nealon, J.), the court ruled, under Pa.R.C.P. 1019, that if a plaintiff alleges that a defendant violated a statute or ordinance, then the plaintiff should cite that statute or ordinance in the complaint in order to provide proper notice to the defense of the claims presented. In this case, where that did not occur, preliminary objections were granted and the plaintiff was allowed the right to amend.

In 2022, defendants were also given lessons in pleading drafting. A couple of courts handed down reminders that even new matter pleadings are required to have factual allegations pleaded to support the defenses asserted and to put the plaintiff’s on proper notice of the same. See Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. Oct. 1, 2021 Williamson, J.); J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.).

In the Philips case, Judge David J. Williamson of Monroe County provided the reminder that a new matter is a pleading and that all pleadings are subject to the mandates of Pa.R.C.P. 1019. One of the mandates of Pa.R.C.P. 1019 is that the “material facts on which a … defense is based shall be stated in a concise and summary form. Williamson confirmed that even new matter pleadings must have a factual specificity that enables the plaintiff to prepare a response to the same and that new matter pleadings that do not meet this mandate may be stricken in the face of preliminary objections filed by a plaintiff.
 
Allegations of Recklessness

Over the course of 2022, the trial courts continued to hand down conflicting decisions, sometimes even within the same county court, on the proper pleading of allegations of recklessness in civil litigation matters. Then, on Nov. 21, the Pennsylvania Superior Court provided much needed appellate guidance on the issue in the case of Monroe v. Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam). 

In a split decision, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action. As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally and without regard to the sufficiency of the underlying facts averred.

The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the previous split of authority among the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove any doubt that, so long as a plaintiff’s complaint specifically alleges facts to state a prima facie claim for the tort of negligence, and also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.”

In two separate dissenting opinions in the case, one by President Judge Emeritus John Bender and one by Judge Victor Stabile, the alternative rule was advocated, based upon 50 years of precedent, that a plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, the point of view, as found in the dissenting opinions, was not adopted by the majority of the judges in the en banc decision in this case.

Therefore, under the rule enunciated by the majority in this Monroe case, a plaintiff may plead recklessness in any case whatsoever with reckless abandon and without regard to the facts presented. The majority suggested that a defendant can revisit the issue of the validity of the recklessness claims by way of a summary judgment motion after discovery has been completed.

Pleading the Fifth at a Deposition

Over the past year a couple of decisions were handed down by trial courts on the important issue of when a tortfeasor defendant can assert his or her Fifth Amendment right against self-incrimination in a personal injury civil litigation matter that arises out of the same conduct for which the tortfeasor may face criminal charges.

In the case of Sweet v. City of Williamsport, No. 20-CV-00512 (C.P. Lyc. Co. June 27, 2022 Linhardt, J.), the author of this article argued that his client should be permitted to assert his Fifth Amendment right against self-incrimination relative to efforts to depose the defendant in a fatal motor vehicle accident case.

The opposing parties asserted that the defendant should not be permitted to assert his right against self-incrimination because the defendant had already been charged with traffic citations and that, in light of the same, the defendant did not face the prospect of further prosecution under 18 Pa.C.S.A. Section 110(1)(ii).

However, in Sweet, the trial court confirmed that there was an exception under the law that allowed for further prosecutions in situations where evidence in support of an additional criminal offense was not known to the prosecuting officer at the time of the filing of the first set of charges against the defendant.

Therefore, since the defendant was found to have a reasonable basis to fear the prospect of self-incrimination by his own deposition testimony, the court found that it was not “perfectly clear” that the defendant was mistaken in this apprehension that he might incriminate himself. Consequently, the court refused to override the defendant’s assertion of his Fifth Amendment privilege and denied the motion to compel the defendant to answer deposition questions about the accident.

The court did go on to note that, if the defendant was able to secure an immunity agreement from the district attorney, then the fear of self-incrimination would be eradicated and that the defendant could then be compelled to answer questions at a later deposition.

This issue and the same result can also be found in the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), in which the alleged tortfeasor defendant was also represented by the law firm of the author of this article.

Enforceability of the Regular Use Exclusion

In two recent cases over the past year or so, the Pennsylvania Superior Court has ruled that the regular use exclusion found in automobile insurance policies is unenforceable as it is in violation of the mandates of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL). See Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. 2021); Jones v. Erie Insurance Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022).

The regular use exclusion basically posits that, where an insured has another vehicle regularly available for his or her use that is not covered under the applicable insurance policy, the policy will not provide UM or UIM coverage if the insured is injured while utilizing that other non-covered vehicle. The scenario typically arises where an insured is injured while driving a work vehicle and then seeks to recover UIM benefits provided under a separate personal vehicle owned by the injured party at home.

In the Rush case and the Jones v. Erie Insurance cases the Pennsylvania Superior Court essentially utilized the same rationale that the Pennsylvania Supreme Court utilized in the household exclusion case of Gallagher v. Geico, 201 A.3dd 131 (Pa. 2019). That rationale is that the regular use exclusion was unenforceable in the eyes of these Superior Court judges in that the exclusion, by excluding coverage in certain scenarios, improperly acted as a de facto waiver of UIM coverage when the MVFRL requires insurance companies to secure a knowing and written waiver of UM or UIM coverage from its insureds in order for for the waiver to be valid.

What to Watch for in 2023

There are several notable issues that are set to be decided by the Pennsylvania Supreme Court in 2023.

The above-noted case of Rush v. Erie Insurance on the enforceability of the regular use exclusion is currently pending before Pennsylvania’s highest court.

With respect to the enforceability of the household exclusion, which the Pennsylvania Supreme Court has repeatedly shot down, that issue is back before the high court in the case of Erie Insurance Exchange v. Mione. The primary question in that case is whether the household exclusion remains otherwise valid in those cases where a plaintiff had validly rejected UIM coverage in writing such that the de facto waiver of coverage argument is inapplicable.

Another anticipated decision from the Supreme Court of Pennsylvania involves the issue of whether an employer who holds a social event, such as a golf outing, should be considered to be a social host and thereby afforded the protections afforded under the law when one of the attendees is allegedly involved in a motor vehicle accident while allegedly under the influence. Keep an eye out for the court’s decision on this issue in the case of Klar v. Dairy Farmers of America.

In the upcoming year, in the case of The Bert v. Turk, the Pennsylvania Supreme Court will also address the issue of whether a punitive damages award in a personal injury matter that is many times higher than the compensatory award is constitutionally sound if the allegedly excessive amount of punitive damages is divided up among several tortfeasors.

The Pennsylvania Supreme Court’s decisions in these cases will signal whether the court will remain firmly entrenched in favor of plaintiff’s causes as it has been in recent years or will instead move back more toward the center.


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

Wednesday, December 28, 2022

THE TORT TALK 2022 TOP TEN


Here is the 2022 Tort Talk Top Ten -- an annual listing of some of the notable cases and top trends in Pennsylvania civil litigation law from over the past year or so as highlighted in Tort Talk blog posts:


10.  BUSINESS INTERRUPTION COVERAGE CASES TREND

The state and federal courts of Pennsylvania grappled with the issue of whether the business interruption coverage provisions under business insurance policies were triggered by the governmental shutdown orders issued during the COVID-19 pandemic.  While the carriers have generally prevailed in the cases presented, plaintiffs recently scored a victory in the Pennsylvania Superior Court.  

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Business Interruption Coverage" to get to the Tort Talk posts on that topic.


9.  DELAY DAMAGES NOT IMPACTED BY COVID-19 PANDEMIC

In 2022, the court's rejected efforts by defense counsel to limit their client's exposure to delay damages by arguing that the time associated with delays caused by the closure of the courts during the COVID-19 pandemic should be subtracted from the delay damages calculation.  See Getting v. Mark Sales & Leasing, Inc., 274 A.3d 1251 (Pa. Super. 2022)

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Delay Damages" to get to the Tort Talk posts on that topic.


8.  RULE CHANGES OF NOTE

On April 1, an amendment to Pa.R.C.P. 223.2 regarding Juror Note Taking went into effect, allowing for more instances of note taking during a civil litigation trial.

On July 1, an amendment to Pa.R.C.P. 1311.1 went into effect allowing for the jurisdictional limit for appeals from arbitration to be the jurisdictional limit of the judicial district in which the suit was filed, which is typically $50,000.

And on January 1, 2023, under another Rule change allowed by the Pennsylvania Supreme Court will go into effect in the context of medical malparctice cases, amendments to venue rules found at Pa.R.C.P. 1006, 2130, 2156 and 2179.  These amendments will allow plaintiffs to file a medical malpractice suit in any county where the medical provider regularly conducts its business or has significant contacts.

To gather more details on any of the above Rule changes, please go to www.TortTalk.com and type in any of the Rule numbers into the "Search This Blog" Box in the upper right hand corner and click on "Search."


7.  SPEAKING OBJECTIONS AT DEPOSITIONS PROHIBITED

Attorneys on both sides of the bar seemed to be pushing back more on speaking objections at depositions in recent years.  So much so that the issue came before the Court and resulted in an Opinion in which the rules of that game were clarified in the case of The Fiduciary Trust Co. Int'l. of Pa v. Geisinger-Community Medical Center, No. 20-CV-4775 (C.P. Lacka. Co. March 4, 2022 Nealon, J.).

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Objections at Depositions" to get to the Tort Talk posts on that topic.


6.  VIDEO OF ACCIDENT/INCIDENT MUST BE PRODUCED PRIOR TO DEPOSITION

In what appears to be a decision of first impression, the Allegheny County Court of Common Pleas issued a decision in the case of Capenos v. Greentree Hardware & Electric, Inc., No. GD-20-010087 (C.P. Alleg. Co. Dec. 17, 2021), in which the court ruled that surveillance footage of an automobile accident was required to be produced prior to a plaintiff's deposition.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Video of Accident" to get to the Tort Talk posts on that topic.


5.  PENNSYLVANIA SUPREME COURT HELPS PLAINTIFF MEDICAL MALPRACTICE ACTIONS

In addition to formulating and putting into effect venue Rule changes that dramatically expands where a medical malpractice plaintiff may file suit, i.e., to where ever the medical provider conducts its business or has significant contacts, in the case of Reibenstein v. Barrax, No. 32 MAP 2021 (Pa. Dec. 12, 2022), the Pennsylvania Supreme Court addressed the extent to which the tolling provision in the MCARE act may apply in given cases.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Medical Malpractice" to get to the Tort Talk posts on that topic.


4.  REGULAR USE EXCLUSION UNDER FIRE

The All-American Rule that you can't get something for nothing continues to be under fire in Pennsylvania civil litigation matters.

More specifically, the notion that you can't get insurance coverage you did not pay for is under fire.

In the wake of the the court decisions on the validity of the Household Exclusion in recent years, the Regular Use Exclusion also had a target on its back this year.

Both the Household Exclusion and the Regular Use Exclusion protect carriers from having to pay out UM or UIM insurance benefits in cases involving vehicles for which no coverage was provided for, or paid for, under the policy at issue.

In the last year or so, the Pennsylvania Superior Court ruled that the Regular Use Exclusion was invalid in two separate cases, namely, Rush v. Erie Ins. Exchange, 265 A.3d 794 (Pa. Super. 2021), and Jones v. Erie Ins. Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022).

Note that the Rush case is currently before the plaintiff-friendly Pennsylvania Supreme Court for a decision.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Regular Use Exclusion" to get to the Tort Talk posts on that topic.


3.  FAIR SHARE ACT REMAINS SOMEWHAT UNSETTLED

In 2022, there were several decisions in which the question of whether the Fair Share Act should apply in cases involving an innocent plaintiff was again addressed.  These cases arise out the dicta handed down in the Spencer v. Johnson decision in which the Pennsylvania Superior Court expounded on the issue even though that particular issue wasn't before them in that matter.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Fair Share Act" to get to the Tort Talk posts on that topic.


2.  APPELLATE GUIDANCE ON ALLEGATIONS OF RECKLESSNESS

In the case of Monroe v. Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 2022)(en banc)(per curiam), the Pennsylvania Superior Court provided appellate guidance on the issues of the proper allegation of recklessness in state court personal injury Complaints.  

That court adopted the plaintiff-friendly notion that a plaintiff may plead recklessness in any Complaint whatsoever with reckless abandon and regardless of the facts presented.  

The remedy for the defendant is to attack the allegations of recklessness by way of a motion for summary judgment and to hope for the best, that is, hope that a trial court judge does not deny the motion for summary judgment under the onerous standard of review just for the sake of keeping the pressure on for a potential settlement.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Allegations of Recklessness" or "Recklessness" to get to the Tort Talk posts on that topic.


1.  A MORE EFFICIENT PRACTICE OF LAW THROUGH ADVANCED COMMUNICATIONS TECHNOLOGY IS HERE TO STAY

The rise of the more common use of Advanced Communications Technology (ACT) such as Zoom allowed the wheels of justice to keep turning during the pandemic and, thankfully, is here to stay for a more efficient, less expensive practice of law going forward.

Here's a LINK to my article on tips on how to improve your appearance on Zoom and/or what to tell your clients to help improve their appearance at their depositions.  One notable tip in this regard is to tell your clients to look into the camera when they are answering so as to appear to be looking into the questioner's eyes as they provide information.

For more information on this topic, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Zoom" to get to the Tort Talk posts on that topic.



Thank you for reading Tort Talk and thank you for providing me with cases of note to highlight here on Tort Talk.


Hoping you can please keep me in mind should I be able to assist you in bringing 

your cases to a close via a Mediation.


(570) 319-5899

dancummins@CumminsLaw.net


Source of top image:  Photo by Magda Ehlers on www.pexels.com.

Tuesday, December 27, 2022

Pennsylvania Supreme Court Addresses Tolling Provision Found in MCARE Act


The Pennsylvania Supreme Court addressed MCARE’s tolling provision recently in the case of Reibenstein v. Barrax, No. 32 MAP 2021 (Pa. Dec. 12, 2022) (Op. by Wecht, J.) (Sallie, Mundy, J. and Dougherty, J., concurring/dissenting).

According to the Opinion, the Plaintiff in this medical malpractice action had brought her claims against the Defendant after the two (2) year statute of limitations had expired.

The court noted that the Plaintiff’s death certificate indisputably and correctly noted the medical cause of the decedent’s death.

In this decision, the court made a distinction between a reference to a decedent's manner of death and a decedent's cause of death.  In the context of the operation of the statute of limitations as stated under the MCARE Act, the court noted that the issue involved the legal cause of death and the medical cause of death.

The Court noted that MCARE provides a two year statute of limitations in death actions with the statute beginning to run at the time of the decedent's death.  The Act provides that the statute of limitations will be tolled where there is an affirmative misrepresentation or fraudulent concealment of the cause of death.    

Here, the Plaintiff brought their claims against one of the medical defendants after the two year period had run.  The Court noted that the decedent's death certificate undisputedly and correctly noted the medical cause of the decedent's death.

The trial court had ruled that the phrase “cause of death” referred specifically and only to the direct medical cause of death.  Accordingly, the trial court granted summary judgment to the Defendant doctor under §513(d) of the Medical Care Availability and Reduction of Error Act (MCARE Act).

The Pennsylvania Superior Court reversed the trial court decision and interpreted the “cause of death” on the death certificate more broadly to cover considerations associated with the manner of death, that is, the legal cause.

The Pennsylvania Supreme Court reversed the decision by the Superior Court and held that MCARE’s tolling provision could not support the breadth of the reading suggested by the Pennsylvania Superior Court.

The court in this matter essentially ruled that the reference to the “cause of death” refers only to the medical meaning of the phrase and not the legal interpretation.

This decision is otherwise notable in that Pennsylvania Supreme Court majority determined that the tolling provision under the MCARE Act for instances when the decedent’s cause of death has been allegedly concealed refers only to the medical cause of death.

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

The Concurring and Dissenting Opinion by Justice Dougherty may be viewed HERE.

The Concurring and Dissenting Opinion by Justice Sallie Mundy may be viewed HERE.


Source of image:  Photo by Manasvita on Unsplash.com.

Pennsylvania Supreme Court and Phila. County Court of Common Pleas Earn Second Place in ATRA's 2022 List of Judicial Hellholes

 


Here is a LINK to the annual article put out by the American Tort Reform Foundation outlining the top "Judicial Hellholes" of 2022-2023.  The article outlines what the authors suggest are abuses of the civil litigation system that favor personal injury plaintiffs.

The Pennsylvania Supreme Court and the Philadelphia County Court of Common Pleas scored a Second Place ranking in the entire nation.

Here is the LINK to the more specific reasons as to why these Pennsylvania Courts earned such a distinction.


Thursday, December 22, 2022

Chief Judge Matthew W. Brann of Middle District Addresses Admissibility of Alleged Contributory Negligence of Plaintiff in Products Case



In the case of Cote v. Schnell Industries, No. 4:18-CV--1440 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court addressed several issues with respect to the admissibility of alleged misconduct by a Plaintiff in a products liability case.

According to the Opinion, this case involved a machine involved in a workplace accident that nearly severed the Plaintiff's hand.

The court noted that a Plaintiff’s comparative negligence is not admissible in a strict liability action, except as a superceding cause where the Plaintiff is the sole cause of the accident. The court otherwise noted that negligence that relates to the product itself cannot be a sole cause.

Here, the court found that the Plaintiff’s conduct in putting his hand in a dangerous position in the product relates to the product and was, therefore, inadmissible to be used against the Plaintiff.

The court also noted that the Plaintiff’s conduct is not relevant to the consumer expectation or risk-utility factors applicable to a products liability action because these tests to determine a product defect are concerns with the actions of an “ordinary” person, and not any particular Plaintiff.

However, the court did note that evidence of a Plaintiff’s voluntary assumption of the risks, misuse of a product, or highly reckless conduct is admissible to prove the issue of causation.

Chief Judge Matthew W. Brann
M.D. Pa.


Chief Judge Matthew W. Brann stated that, under Pennsylvania law, the assumption of the risk doctrine requires a knowing and voluntary exposure of oneself to a known risk. The court found that his assumption of the risk doctrine is inapplicable where a Plaintiff was required to use equipment provided by an employer.

Judge Brann additionally noted that product misuse and highly reckless conduct involve a Plaintiff’s unforeseeable, outrageous, and extraordinary use of a product. Whether a Plaintiff’s conduct meets this standard is for a jury to decide.

However, because a Plaintiff’s misuse and highly reckless conduct cannot be a sole cause of the accident, the court found the evidence of such conduct was inadmissible. 

On another issue before the Court, Judge Brann additionally noted that the Defendants could not use a Motion In Limine as a belated substitute for a Rule 702 motion relative to the competency of an expert’s opinion.

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


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

Judge Williamson of Monroe County Finds that Transit Authority Had No Duty Where Plaintiff Assumed Risk of Injury


In another decision out of the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority in a matter where a Plaintiff was injured after exiting a bus at a bus stop and being struck by an oncoming vehicle under nighttime conditions.

According to the Opinion, the Plaintiff alleged that the Defendant, Monroe County Transit Authority, was negligent relative to the selection of the location of the bus stop which was allegedly inherently dangerous.

The court applied the Sovereign Immunity Act, 42 Pa. C.S.A. §8542.

Under the Sovereign Immunity Act, local governmental agencies are not liable for damages unless (1) the damages would be recoverable under common law, and (2) the injury was caused by a negligent act of the local government of its agent that fell within one of the enumerated exceptions to tort immunity. 

One of the exceptions under 42 Pa. C.S.A. §8542(b)(1) includes accidents caused by the operation of any motor vehicle.

The Plaintiff based their claims for a recovery based upon an allegation that the location of the bus stop was dangerous and that the harm to the Plaintiff was a foreseeable risk.

The court agreed that the stopping of the bus at the bus stop for passengers to disembark was part of the operation of the bus that was owned by the governmental agency.

However, the court found that, based upon the evidence presented, the acts or omissions by the Monroe County Transit Authority were not the proximate cause of the decedent’s harm. While the Defendant chose the location of the bus stop, that Defendant was not responsible for the narrow shoulder, the lack of guardrails, sidewalks, lights, bus shelters, or cut-a-ways in the roadway for passengers to the cross the street.

Rather, the road was owned by PennDOT and the Monroe County Transit Authority had no control over the conditions of the roadway.

The court also noted that the record before the court also showed the decedent was wearing dark clothing during this nighttime accident and was also wearing headphones plugged into his phone when he was crossing street. 

As such, the court found that the allegedly defective conditions at the site did not cause the Plaintiff’s death. The court noted that wider shoulders, guardrails, sidewalks, lighting, a bus shelter, or a road cut-a-way would not have protected the decedent from the accident. 

Rather, the court stated, the accident occurred, according to the facts gathered during discovery, because the decedent was distracted and crossed the road in front of an oncoming vehicle under nighttime conditions. The court also noted that there was no evidence that better lighting in the area would have prevented the accident.

The court also agreed with the Defendant, Monroe County Transit Authority, that the bus stop was generally safe. There was no prior notice of any other accidents at the stop or that the bus stop was dangerous in any way.

The court additionally noted that the decedent did not have to get off at this stop. There were a total of five (5) stops in the area where the Plaintiff had disembarked. As such, the court found that the decedent assumed the risk of getting off at this particular stop, when he could have gotten off at other stops. As such, the court found that any duty that the Defendant, Monroe County Transit Authority may have had in this matter was extinguished by the actions of the decedent and his assumption of the risk of his injury.

As such, for these multiple reasons, Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).


Source of image: Photo by Darren Viollet from www.pexels.com.

Monday, December 19, 2022

Court Rules That Peer Review Documents Sought In Medical Malpractice Action are Discoverable


In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Leh. Co. Oct. 3, 2022 Caffrey, J.), the court ruled that patient safety reports that the Plaintiff sought in discover from the Defendants in this medical malpractice action were solely prepared for compliance with the Medical Care Availability and Reduction of Error Act reporting requirements. 

The court noted that the Peer Review Protection Act grants qualified immunity for healthcare providers participating in a peer review process and establishes an evidentiary privilege applicable to peer review proceedings to protect the process which is designed to improve the practice of medicine.

However, the court noted that these documents were not immune from discovery because they did not arise out of matters reviewed by a patient safety committee.  It was emphasized that the documents at issue consisted of information that was otherwise available from original sources.  As such, the court vacated a prior Order and issued a new Order granting discovery.

The court granted this Motion after an in-camera review of the documents at issue.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 6, 2022).


Source of image:  National Cancer Institute on www.unsplash.com.

Judge Mariani Excuses Technical Error In Service of Process Where Plaintiff Made Good Faith Efforts



In the case of Kerr v. Sagan, No. 3:21-CV-0459 (M.D. Pa. Oct. 13, 2022 Mariani, J.), the court denied a Motion to Dismiss in a Federal Court motor vehicle accident matter, which Motion was based upon issues regarding service of process and the statute of limitations.

The defense argued that the Plaintiff's claims were time-barred because the Plaintiff did not effectuate service before the statute of limitations expired.  This case initially started in the state court and was then removed to Federal Court.

The defense proceeded with a Rule 12(b)(6) Motion to Dismiss for failure to state a cause of action upon which relief may be granted and a Rule 12(b)(5) Motion to Dismiss for failure to complete service.    

The Court noted that because the record confirmed that service was finally completed before the case was removed to Federal Court, the validity of the service upon the out-of-state defendant would be determined under an application of Pennsylvania law.

The court found that the case before it was not facially barred by the statute of limitations.

Judge Robert D. Mariani
M.D.Pa.


Judge Mariani noted that, although the initial effort at service by First Class Mail was technically improper under Pennsylvania law, and although the Complaint was not reinstated until after the expiration of the statute of limitations, in the interim, the Plaintiff had made good faith efforts to try to complete service where the Plaintiff had actually tried to complete service in a timely fashion.

The Court also noted that the parties had engaged in active settlement negotiations which demonstrated that the Defendant had adequate notice of the pendency of the litigation.

The court additionally noted that a Plaintiff who incorrectly but genuinely believes that he or she has effectuated service cannot be expected to make continuing service efforts.

Notably, Judge Mariani distinguished between "a plaintiff who attempts service of process, knows it was a failed attempt, and declines to remedy it, and a plaintiff who incorrectly but genuinely believes he has effectuated service and therefore does not make additional attempts.

In light of the above, the court found that the Plaintiff did not intentionally stall the litigation such that dismissal under the law of Lamp v. Heyman was required.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order 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.


Source of image:  Photo by Nathan Dumlao on www.unsplash.com.

Default Judgment Worth $1 Million Dollars Opened Due to Fatal Defects in the Record


In the case of Grady v. Nelson, No. 2115 EDA 2021 (Pa. Super. Oct. 21, 2022 Stabile, J., Dubow, J., and Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed a trial court Order in which the trial court denied a Defendant’s Petition to Strike or Open a Default Judgment.

On appeal, the Pennsylvania Superior Court ruled that a Sheriff’s Return of Service indicating the non-existence of an address was conclusive on its face to render a Petition to Strike or Open Default Judgment meritorious as it was apparent from the record that the Defendant had not been afforded notice of the proceedings.

According to the Opinion, this matter arose out of a shooting incident on premises owned by the Defendant. The court noted that a default judgment was entered against the Defendant in the amount of $1 million dollars.

The Superior Court opened the judgment after finding two (2) fatal defects that existed on the face of the record. One, the court found that there was conclusive evidence that the Plaintiff had served the Complaint and the judgment notices on a non-existent address, thereby depriving the Defendant of notice that this action was pending against him.

Also, the court found that the Plaintiff’s 10-Day Notice of Intent to Enter a Default Judgment did not substantially comply with the language required under Pa. R.C.P. 237.5 and 237.1.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 15, 2022).

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

Friday, December 16, 2022

HAPPY HOLIDAYS - Annual Holiday Gift From Tort Talk

Here is the LINK to a complimentary copy of the 161 paged 2022 Tort Talk Civil Litigation Update booklet that I created for use at my recent year-end civil litigation update CLE. 

The 2022 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here free of charge for the readers of Tort Talk.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2022 Civil Litigation Update, please simply go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which there should be a LINK to the actual Opinion.

I not that the PBI sells its annual Civil Litigation Update Booklet for approximately $69.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

To the extent you may have a desire to pay it forward this holiday season, I would politely propose considering making a small donation to a charity or a non-profit organization such as Lackawanna Pro Bono or The Children's Advocacy Center, or send out some act or acts of kindness this holiday season and beyond.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is much appreciated.

HAPPY HOLIDAYS!



Source of top image:  Photo by Monstera on www.pexels.com.

Thursday, December 15, 2022

Court Denies Plaintiff Right to File Amended Complaint to Correct Name of the Defendant Driver After Plaintiff Waited Too Long To Do So


In the case of Myrick v. Hall, April Term 2020, No. 00794 (C.P. Phila. Co. Aug. 15, 2022 Shreeves-Johns, J.), the court affirmed the trial court’s Order granting a Motion to Dismiss and denying a Plaintiff’s Motion for Leave to file an Amended Complaint to correct the name of the Defendant driver. in the Complaint.

In its decision, the court focused upon the fact that, although the Plaintiff knew that they had sued the wrong party in the Complaint’s caption, the Plaintiff did not seek to cure this defect until after the applicable statute of limitations had expired.

The court pointed to Supreme Court precedent holding that, where the statute of limitations has run, amendments will not be allowed to introduce a new cause of action or to bring in a new party.

The court emphasized that, based upon the Plaintiff’s own admission, the Plaintiff was aware that an adult male was driving the vehicle involved in the subject accident, but nevertheless chose to name a female as the Defendant driver in the Complaint. It turned out that the husband of the named Defendant driver was the actual driver during the course of the accident.

The court noted that the Plaintiff did not act with haste and took over six (6) months to attempt to cure the defects in their pleading after having become aware of the actual driver’s identity.

As such, in the Rule 1925 Opinion, the trial court asserted that the it did not abuse its discretion by granting the named Defendant driver’s motion to dismiss and denying the Plaintiff’s request for leave to amend the Complaint to identify the correct driver.

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

Source of Image:  Photo by Varvara Grabova on www.unsplash.com.



Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

 



Tuesday, December 13, 2022

Strict Liability Failure to Warn Claims Fail Where Plaintiffs Did Not Read Warnings


In the case of Mains v. The Sherwin-Williams Co., 5:20-CV-00112 (E.D. Pa. Nov. 10, 2022 Gallagher, J.), the Eastern District Court of Pennsylvania addressed the validity of a warning defect theory put forth by a Plaintiff in a products liability case.

This matter arose out of an incident during which the Plaintiff's deck caught on fire.  The Plaintiffs alleged that the product they used to stain their deck self-heated and caused a fire on their property.  More specifically, the Plaintiff's alleged that they placed application materials with the product left on it on the lawn next to the dect after which those items spontaneously caught fire.   

The court ruled that the Plaintiff’s warning defect theory failed as a matter of law because the Plaintiff admitted in this case that they never even read the warning label on the Defendant’s product.

The court therefore found that an unread warning could not be a cause of an injury in a products liability claim. 

The court also noted that the Plaintiff did not show any way that a “reminder warning” might have prevented the accident.

In this particular matter, the court also found that the Plaintiff’s failure to warn claim was also preempted by the Hazardous Substances Act because that Act did not require the Defendant to include a spontaneous combusting warning on the label as a principal hazard.

The court also confirmed that, in any event, the warning label on the product contained the words 'DANGER' and 'COMBUSTIBLE,' and further informed users of the product that 'rags, steel wool, other waste soaked with this product...may catch fire if impropertly discarded.'  Users were advised to discard such waste in a sealed water filled metal container.     

The court additionally noted that the Plaintiff was unable to establish any design or manufacturing defect because the Plaintiff’s lacked any expert evidence that the product, whether it was defective or not, actually caused the fire that injured them.

The court confirmed that the Plaintiff did not identify a cause and origin expert with regards to the fire in question. It was additionally held that lay opinion testimony is speculative and no substitute for expert fire causation testimony, particularly where there were possible alternative origins for the fire in this case. The court also noted that scientific knowledge about the chemical components of the product and their corresponding combustibility was beyond the understanding of a layperson and, therefore, required the testimony of an expert.

The court also found that the Plaintiff could not rely upon a malfunction theory of liability to establish an alleged manufacturing defect because the Plaintiffs did not have the expert testimony necessary to eliminate other possible causes.

The court also found that the Plaintiff’s implied warranty of merchantability claim was similar to a strict liability claim and that this implied warranty of merchantability claim failed because the Plaintiffs were not able to establish a product defect.

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


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


Source of Image:  Photo by Pontius Wellgraf on www. Pexels.com.

Monday, December 12, 2022

Court Addresses Admissibility of Photographs at Trial


In the case of Saahir v. Albert Einstein Med. Center, December Term 2017, No. 03298, (C.P. Phila. Co. Aug. 25, 2022 Foglietta J.), the court found that photographs documenting a decedent’s painful injuries while the decedent was in the hospital were relevant to the Plaintiff’s wrongful death and survival claims. The court, in this Rule 1925 Opinion, recommended affirmance of its ruling in favor of the admission of the photographs at trial.

In its Opinion, the court noted that the Defendant’s argument regarding a discrepancy in the date of the photos went to the weight of such evidence and not the admissibility of the evidence.

The court in its Opinion provides a nice summary of the law of admissibility at trial in this regard, including with respect to whether the prejudicial effect of the evidence outweighs any probative value of the evidence.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2022).

Friday, December 9, 2022

Legal Malpractice Claim Found to be Barred By Statute of Limitations


In the case of Am. Mushroom Coop. v. Saul Ewing Arnstein & Lehr, LLP, No. March Term, 2020 No. 02211 (C.P. Phila. Co. Aug. 17, 2022 Padilla, J.), the court issued a Rule 1925 Opinion requesting that the Pennsylvania Superior Court affirm the trial court's previous Order granting a Defendant’s Motion for Judgment on the Pleadings in a legal malpractice claim.

The court found that the claims presented by the Plaintiff in this action were barred by the statute of limitations.

After reviewing the record before it, the court held that the Plaintiffs’ malpractice claims were time-barred since the Plaintiff first knew or should have known that they had been allegedly injured by allegedly erroneously legal advice back in 2004.

The case revolved around the Plaintiff’s execution of a consent judgment in a Department of Justice investigation of the business practices of the Plaintiff that were purportedly based upon the same legal advice.

As noted, the court found that the Plaintiff’s claims were time-barred and entered judgment on the pleadings in favor of the Defendant law firm.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2022).

Court Addresses Ability of Non-Settled Defendant To Have Settled Defendants On the Verdict Slip



In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 7, 2022 Nealon, J.), the court considered a motion filed by a Defendant doctor for reconsideration of the court’s previous Orders which discontinued the case as to other named Defendants which previous dismissal from the case of those Defendants was based upon those Defendants entering into earlier joint tortfeasor settlement agreements with the Plaintiff.

According to the Opinion, this case arose out of a medical professional liability action against numerous Defendants related to a slip and fall event that occurred on the premises after which the alleged negligent treatment by the medical Defendants allegedly resulted in the death of the Plaintiff.

After reviewing Pennsylvania Rules of Civil Procedure 229 regarding the Discontinuance of actions, the court rejected the moving medical Defendant’s argument that the settled Defendants must remain in the case and on the Verdict Slip.

In this regard, the court found no evidence presented by the moving Defendant that warranted keeping the settling Defendants in the case. Of note, the court stated that there was no valid expert evidence that would be presented by the moving Defendants to keep the settled Defendants in the case. 

The court also noted that the moving Defendants reference to certain standard of care and causation opinions of one of the experts in the case was not admissible as such testimony constituted hearsay. The court reiterated the rule of law that one expert may not act as mere conduit or transmitter of the content of an admissible evidence or other expert opinion where the testifying expert does not bring to bear on it his own expertise or judgment.

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

Thursday, December 8, 2022

Federal Court Reviews Five Factor Test for Imposition of Discovery Sanctions


In the case of Garcia v. S&F Logistics, No. 5:21-CV-04062-JMG (E.D. Pa. Oct. 24, 2022 Gallagher, J.), the court granted discovery sanctions against a Defendant in the form of a default judgment of liability against those Defendants where the Defendants had repeatedly failed to respond to discovery requests or appear for depositions despite Court Orders to do so.

According to the Opinion, this case arose out of a trucking accident.

In entering its Order, the court additionally noted that defense counsel had trouble establishing contact with the Defendants.

In the Opinion, the Court reviewed the Federal Court standard of review for the imposition of discovery sanctions, which includes an analysis of five factors set forth in the decision, and also noted that the trial court judge had wide discretion in this regard.    

The court found that the Plaintiff had been materially prejudiced by the Defendants’ discovery violations. Because the court anticipated that there would be no change in the Defendants’ behavior, the court concluded that the most effective sanction would be to bar the Defendants from contesting liability at trial.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 10, 2022).

Source of image: Photo by Ekaterina Bolovtsova from www.pexels.com.


Wednesday, December 7, 2022

Court Addresses Proper Damages Recoverable in a Medical Malpractice Action Involving An Older Retired Adult



In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 4, 2022 Nealon, J.), Judge Terrence R. Nealon addressed the proper damages recoverable and the supporting evidence required in a medical professional liability action involving the death of a retired older adult.

In particular the court addressed this issue in terms of a Plaintiff’s effort to seek to recover damages under the Wrongful Death Act, 42 Pa. C.S.A. §8301, and the Survival Act, 42 Pa. C.S.A. §8302.

After outlining what types of damages are available to be recovered under each of these elements of avenues of damagers,

After reviewing the record before him, the court found that, since the Plaintiff had not produced an expert report to provide the jury with evidence of the effect of productivity and inflation over time, the applicable discount rate required by the law, and the decedent’s personal maintenance cost, for food, clothing, shelter, medical attention, and some recreation, the Plaintiff could not satisfy her burden of proof under the law in order to advance and sustain a claim in the Survival action for the decedent’s loss of earnings or income.

The court further found that the Plaintiff’s intended use of the decedent’s adjusted gross income as the measure of his estate’s recoverable economic damages would erroneously include forms of income that did not arise from the decedent’s intellectual or body laborer and, as such, are not proper items of damages under the Survival Act.

Accordingly, the court ruled that the Defendant’s Motion In Limine to preclude the Plaintiff from pursuing any type of claim for loss of earnings/income at the trial of the case was granted.

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

Tuesday, December 6, 2022

Court Rejects Carrier's Argument That Sign Down Forms Secured For One Policy Carried Over to Later Policy



In the case of Woloszyn v. Nationwide Prop. & Cas. Ins. Co., No. 10246 of 2022, C.A. (C.P. Lawr. Co. Oct. 6, 2022 Hodge, J.), the court denied a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith insurance claim.

In this matter, which arose out of a motor vehicle accident, the Defendant carrier argued that it was not obligated to provide coverage because the carrier had secured a sign down form from the Plaintiff relative to the Plaintiff’s previous policy with the carrier. The carrier noted that the more recent insurance policy provided to the Plaintiff, which was in effect at the time of the accident, was just a rewriting of the previous policy. As such, the carrier asserted that the securing of another sign down form was not requried.

The court in this matter disagreed with the carrier's argument and held that, under 75 Pa. C.S.A. §1731, the carrier was required to secure another sign down form and that, therefore, the Defendant’s argument that the old coverage limits transferred to the new policy failed as a matter of law.

The court noted that, while the Defendant carrier argued that the new policy simply assumed the sign-down provision of the Plaintiff’s previous policy, the court noted that the Defendants had failed to produce a signed copy of the previous rejection form indicating that the Plaintiffs understood that they were rejecting underinsured and uninsured motorist coverage.

Based upon these reasons, the court denied the Defendant’s Motion to Dismiss.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

Summary Judgment Motion Filed by Store Denied In Part In Case Involving Altercation Between Two Customers



In the case of Cimbat v. Old Navy LLC, No. 21-2657 (E.D. Pa. Oct. 31, 2022 Beetlestone, J.), the court ruled that a Defendant’s Motion for Summary Judgment would be denied as to the negligence claims in a premises liability case where the Plaintiff presented issues of fact regarding whether the store had sufficient protection in place for the Plaintiff after she accused another customer of shoplifting.  The summary judgment motion was granted with respect to the claims asserted of Intentional Infliction of Emotional Distress. 

According to the Opinion, the Plaintiff was assaulted by another customer at an Old Navy store after the Plaintiff approached that customer when she observed the customer attempting to shoplift.

Thereafter, the Plaintiff went to a store employee to report to the attempting shoplifting. That employee informed the store manager, after which the accused shoplifting customer when into the fitting room area. The Plaintiff, believing that the issue was being handled, continued to shop.

However, shortly thereafter, the manager later heard the Plaintiff exclaim, “How are you just going to let her take that stuff where I have to pay for it?”

The record also indicated that the Plaintiff was informed by another employee that the accused shoplifting customer was tampering with a price tag gun in the fitting room and also appeared to be under the influence of drugs or alcohol.

Shortly thereafter, the alleged shoplifting customer approached the Plaintiff in the checkout line and spat in her face. The Plaintiff reacted by throwing a punch to get the customer out of her personal space. The alleged shoplifting customer then connected with a punch to the Plaintiff and then began kicking the Plaintiff after she fell to the ground.

In reviewing the Motion for Summary Judgment filed by the Old Navy store, the court granted the Defendant’s Motion relative to the Plaintiff’s claims of intention infliction of emotional distress. The court stated that the record was insufficient to demonstrate that the employees of the store were deliberately indifferent by failing to take further precautions after discovering that the other customer was attempting to shoplift and appear to be under the influence.

However, the court declined to dismiss the Plaintiff’s premises liability negligence claims. The court found that there was no sufficient facts in the records to support a jury finding that the store had failed to exercise reasonable care in protecting the Plaintiff from harm from the accused shoplifter. The court noted that there was evidence that the store employees suspected that the shoplifter was under the influence and thereby posed a risk of starting an altercation. There was also conflicting evidence as to whether or not the employees of the store were trained to handle intoxicated customers or customer-on-customer altercations.

The court rejected the defense contention that the Plaintiff’s own actions, including falsely representing that she was a store employee and swinging a fist at the shoplifter contributed to the assault that the Plaintiff suffered. The court found that these actions by the Plaintiff were too remote in time to conclusively establish that they were a contributing factor to the assault.

As such, overall, the court concluded that the record contained facts that could allow to conclude that the store was negligent in failing to protect the Plaintiff from an assault on the premises of the store.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 18, 2022).

Denial of Motion To Transfer Venue Affirmed On Appeal

All in all, they'd rather be in Philadelphia

In the case of Ritchey v. Rutter’s Inc., No. 2219 EDA 2020 (Pa. Super. Oct. 20, 2022 Dubow, J., Pellegrini, J., Lazarus, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court properly denied Defendants’ Motion to Transfer Venue on the basis of the doctrine of forum non conveniens because, although the Defendant showed inconvenience with the venue selected by the Plaintiff, there was no showing of oppressiveness.   

The Pennsylvania Superior Court also found that there was no evidence that the trial court’s decision rose to the level of overriding or misapplying the law.  The Superior Court also found that the trial court’s decision was not manifestly unreasonable. 


According to the Opinion, the Plaintiff resided in Cumberland County and the Defendant Pennsylvania Corporation had its principle place of business place of business in York and regularly conducted business in Philadelphia.   


This case arose out of a motor vehicle accident.  The Plaintiff was treated in Dauphin County, Philadelphia County, and Cumberland County.  The Plaintiff filed suit in Philadelphia.   


Under Pa. R.C.P. 2179, a corporate Defendant may be sued in any county in which it regularly conducts business.   


The Defendant in this matter filed a Motion to Transfer Venue from Philadelphia County to either Cumberland or York County under Pa. R.C.P. 1006(d)(1).   The Defendant attached twenty (20) witness affidavits to its motion confirming that venue in Philadelphia would be a “great hardship.”   


When the trial court denied the Motion to Transfer, the Defendant appealed.  As noted, the per Superior Court upheld the trial court’s decision.   


In upholding the denial of the motion, the appellate court found that the trial court did not abuse its discretion in denying the Motion to Transfer where there is evidence that two (2) eyewitnesses to the accident noted their willingness to travel to Philadelphia to testify where the Plaintiff received three (3) months of medical care in Philadelphia County, and where the Defendants’ affidavits asserting inconvenience amounted to nothing more than a superficial showing of inconvenience.   


Also, with respect to any hardship, the Pennsylvania Superior Court noted that, in this day and age, technology to conduct remote depositions and/or to gather witness statements had become a vital and regular component of pre-trial discovery in civil litigation matters.   


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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Nov. 8, 2022).