Trial Court Requests Superior Court to Affirm Rulings in Medical Malpractice Action

In the case of Jordan v. Lynde, No. 2021-CV-02616 (C.P. Bucks Co. March 12, 2024 Trauger, J.), the court issued a Rule 1925 Opinion to the Superior Court requesting that the Superior Court affirm the trial court’s entry of summary judgment in favor of the Defendant medical providers in this medical malpractice action.

The court concluded that its Order dismissing the case should be affirmed where the Plaintiffs failed to present any expert testimony to establish that the care provided by the Defendants deviated from acceptable medical standards.

The court also found that, in this case where the Plaintiffs filed their lawsuit two (2) years and two (2) months after the event which gave rise to the claim, the Plaintiffs’ claims were barred by the statute of limitations and not saved by any reference to the discovery rule.

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


Source “The Legal Intelligencer Common Pleas Case Alert,” ww.law.com (June 19, 2024).

 

Trial Court Addresses Fair Scope of Expert Report Rule

In the case of Hamari v. Ford, No. Feb. Term, 2021, 210201504 (C.P. Phila. Co. Jan. 18, 2024 Jacquinto, J.), the court addressed the fair scope rule relative to expert testimony at trial as compared to the pre-trial expert report.

According to the Opinion, in this case, the Plaintiff’s medical expert testified at trial with regards to the Plaintiff’s need for a fusion surgery. The defense asserted that such testimony regarding spinal surgery was outside of the Plaintiff’s expert’s pre-trial report and was therefore in violation of the fair scope rule.

The doctor’s pre-trial expert report provided, “I would recommend that the patient see a spine surgery for further evaluation of his neck symptoms and possible pain management.”

During the doctor’s trial deposition, on direct examination, the doctor testified that, “…the main treatment for this would be a spinal fusion, with plates and screws, at 5 different levels.”

On cross-examination, the expert was questioned with regards to the line quoted above from his expert report. In response to that question, the expert stated that, “Well it’s – that may not be stated clearly. It would be pain management and also seeing a spine surgery. When I send someone to a spine surgery, it’s not just for medication. It’s because I think the patient will ultimately require surgical intervention.”

In determining whether or not the expert’s trial testimony was within the fair scope of his pre-trial report, this trial court relied upon guidance from the Pennsylvania Superior Court case of Woodard v. Chatterjee, 827 A.2d 433, 440 (Pa. 2003) and the terms of Pa. R.C.P. 4003.5(c), for the law on the fair scope rule.

The trial court in this case noted that the fair scope rule favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise at trial. 

However, no specific rule exists as to determining when expert testimony exceeds the fair scope of a pre-trial expert report and that the determination of this issue is to be on a case by case basis.

In this case, the trial court found that it did not abuse its discretion in finding that the Plaintiff’s expert’s trial testimony complied with the fair scope rule. The court held that the testimony did not go beyond the report and was not inconsistent with the report. Rather, the doctor provided a reasonable explanation as to what was contained in the report, which explanation fell under the fair scope rule.

Here, the court felt that the Defendant could have and should have reasonably anticipated the Plaintiff’s expert testimony regarding future spinal surgery from the relevant language in the expert report.

The court also seemingly placed a burden on the defense to conduct additional discovery to gather more information on the Plaintiff’s expert report when the court wrote in this Opinion that the Defendant “failing to conduct discovery to obtain a full explanation of the relevant portion of [the expert’s] report is not the trial court’s error, but the [the Defendant’s]. See Op. at 6.

The trial court ruled that the allowance of the Plaintiff’s expert testimony as the spine surgery was fair under the law cited because any discrepancy between the expert report and the trial testimony did not prevent the Defendant from making any meaningful response and did not mislead the Defendant. The trial court reiterated that the Defendant could have sought clarity of the relevant portion of the expert report in discovery before receiving such elaboration during the cross-examination at the trial deposition. 

The trial court did not provide any further guidance on how such discovery on an expert's opinion could have been completed under the Pennsylvania Rules of Civil Procedure.

In concluding its statements on this issue, the trial court stated that the allowance of the Plaintiff’s expert’s testimony complied with the fair scope rule and Pennsylvania law such that there is no mistake made at trial by the court.  The trial court ruled that there was, therefore, no need for a new trial as requested by the defense.

In this decision, the trial court otherwise ruled that it did not abuse its discretion or err when it denied the Defendant’s post-trial motions seeking a new trial due to an allegedly excessive verdict and/or with regards to the trial court’s denial of the Defendant’s request for an remittitur.

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


Source: The Legal Intelligencer Court of Common Pleas Case Alert at www.law.com

(July 10, 2024).

Source of above image:  Photo by Sora Shimazki on www.pexels.com.

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Court Refuses To Let Party Call Court Reporter As a Witness at Trial Regarding Testimony At Deposition

In the case of Radzierez v. Kunkle, No. 002277-CV-2021 (C.P. Monroe Co. April 23, 2024 Zulick, J.), the court addressed several issues in a Rule 1925 Opinion arising out of a breach of contract claim.

Of note, the court ruled that the Defendant was not entitled to call a court reporter at trial to testify regarding an alleged error in a witness’ deposition transcript.

The court noted that it is “highly inappropriate” to call an official court reporter to testify about what is said at a deposition. The court noted that “[t]he transcript is the transcript.”

The court ruled that an official court reporter types what they believe they heard. If the court reporter keeps an audio recording, as most do, that can help the court reporter when transcribing their notes. The court noted that, typically, court reporters transcribe from what they typed at the time of the deposition and may use audio for assistance thereafter, if necessary.

Judge Zulick noted that it would be impractical to call in court reporters to testify about a transcript when court reporters are simply going to testify that they typed what they believed that they heard.

The court additionally noted that anyone who disagrees with the content of a transcript of a deposition is generally given time to review the transcript and object as to its accuracy or provide corrections. In this case, the court noted that, although this option was apparently not stated to the witness following his deposition, that witness could have requested to do so in an effort to note if there were any mistakes in the transcript.

The court additionally noted that it had properly declined the party’s request to call the court reporter as a witness at this trial as there is no notice of the intent to do so provided by that party in the party’s previous discovery responses, in any Pre-Trial Conference Memorandums, or at the Pre-Trial Conference. The record revealed that the party who wished to call the court reporter had known of the alleged error for months prior to trial and never provided any such notice. As such, the party could not claim any surprise as to the alleged error in the transcript as the alleged error had been a topic of dispute between the parties in the months leading up to trial.

Finally, the court also noted that there was other discovery in the case with which the party could have used to cross-examine the witness relative to any alleged error in the transcript.

For all of these reasons, the trial court indicated in its Rule 1925 Opinion that it was not error to preclude the party from calling the official court reporter from a deposition to testify at trial.

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


Source: The Legal Intelligencer Weekly Case Update - www.Law.com (July 4, 2024).

Evidence of Compliance With Industry Safety Standards Not Admissible in Products Cases

Back in December of 2023, in the case of Sullivan v. Werner Co., No. 18 EAP 2022 (Pa. Dec. 22, 2023) (Op. by Mundy, J.) (concurring Op. by Justice Donohue) (dissenting Opinion Todd J., jointed by Brobson, J.), the Pennsylvania Supreme Court held that evidence of a product’s compliance with industry and governmental safety standards remains inadmissible following the Pennsylvania Supreme Court’s decision in the case of Tincher v. Omega Flex, Inc., 104 A.3d 368 (Pa. 2014).

Anyone wishing to review the decision in this case may click this LINK.

Justice Donohue's Concurring Opinion can be viewed .

Chief Justice Todd's Dissenting Opinion can be viewed HERE. 

Trial Court Judge Rules That Hills and Ridges Doctrine Does Not Apply To Falls That Occur under an Awning

In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), the court denied a Motion for Summary Judgment in a slip and fall case that occurred during a winter storm event.  The Plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.

The court denied the motion based upon issues of fact. More specifically, the court noted that the Plaintiff had cited to the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004) for the proposition that the hills and ridges doctrine is not applicable where the incident occurred in an area that was covered by a roof or awning.

Judge Lindhart noted that, in the Heasley case, the Plaintiff’s slip and fall occurred while the Plaintiff was walking in a shed that had three walls, with the fourth side open, and an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the hills and ridges doctrine did not apply to a fall occurring inside an outdoor storage shed. 

In the Heasley case, the court reasoned that the hills and ridges doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice.  The court in Heasley found that the Defendant did not present anything that demonstrated that, keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the hills and ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the hills and ridges doctrine to an incident that occurred in a structure covered by a roof and/or an awning.

Judge Linhardt applied the Heasley case to this Johnson case in which the Plaintiff alleged that he fell on the top step of the Defendant’s covered porch which step was allegedly covered by an awning and on which was allegedly some black ice. Judge Linhardt noted that, under the current status of Pennsylvania law, if that allegation is proven, then it appeared that the hills and ridges doctrine would not be applicable to this litigation.

The court found that genuine issues of material fact must be resolved by the jury in this regard and that, therefore, the Motion for Summary Judgment was denied.

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

Source of image:  Photo by Jay Wennington on www.unspash.com.

Issues of Fact On Whether Condition That Caused Slip and Fall Was Open and Obvious Results in Reversal of Entry of Summary Judgment

In its Non-Precedential decision of Robinson v. Seven Springs Mountain Resort, No. 313 WDA 2023 (Pa. Super. June 12, 2024 Bowes, J, Kunselman, J., and Murray, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed the trial court’s entry of summary judgment in a trip and fall matter.

According to the Opinion, the Plaintiff was involved in playing a disc golf (golf with a frisbee) at the time of the incident.  She slipped and fell on a steep slope that had gravel on it and sustained a fractured ankle.

The trial court granted summary judgment after noting that the natural condition at issue was known and obvious since the Plaintiff knew she was walking down a steep slope with patches of rocky and loose dirt when she fell.  The trial court had ruled that the defendant landowner did not owe any duty to protect the Plaintiff from the natural conditions of the terrain that led to the Plaintiff's fall.

On appeal, the Pennsylvania Superior Court ruled that there were issus of fact as to whether the conditions at issue were open and obvious.  

The Court also noted that, even if the condition on the Defendant’s playing field that cause the Plaintiff’s fall was an open and obvious condition, the Defendant was not relieved of its duty of care when it had reason to expect that the invitee’s attention might be distracted.  Here, the appellate court noted that the Plaintiff's attention could have been distracted while playing disc golf.

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

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

Source of image:  Photo by Priscilla Du Preez on www.pexels.com.

Trial Courts Are Not Rubber Stamps When It Comes To Requests to Seal a Settlement

No Rubber Stamps

In the case of Moore v. JB Hunt Transport, Inc., No. 2024-CV-3773 (C.P. Lacka. Co. July 10, 2024 Nealon, J.), the court addressed the novel issue of a request by a Plaintiff’s attorney to seal the amount of a settlement in light to the alleged effect of that settlement on the potential settlement of companion cases.

This case arose out of a fatal motor vehicle collision.  According to the Opinion, several individuals were injured during the course of the accident. 

With regard to this request to seal the judicial record, the counsel for the settling Plaintiff noted that the parties had agreed that the records regarding the settlement should be sealed. The Plaintiff in this case also was requesting a sealing of the record in order to ensure that members of the public, who could potentially be jurors in the cases brought by the other injured parties, could be shielded from information regarding the settlement amount in this particular case. 

At the time of the argument and hearing on the issues presented, the settling Plaintiff’s attorney also argued that the public disclosure of the amount of the settling parties’ settlement could complicate the potential resolution of the claims being asserted by other claimants as a result of the subject accident.

In this Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the standard of review for a court faced with a Motion to Seal a Settlement in a personal injury matter.

Judge Nealon noted that to warrant the sealing of public judicial records reflecting the terms and the amount of a settlement, a party requesting the same must demonstrate that the interest in secrecy outweighs a well-settled presumption in favor of public access to judicial records. In order to satisfy a burden of proof in this regard, a party must establish that public access must be prohibited by the court in order to prevent “a clearly defined and serious injury.”

Judge Nealon noted that the sealing of court records is not a perfunctory judicial task that is automatically granted by the agreement of the parties or at the request of a party.  Rather, a sealing of court records is instead only permitted after an informed analysis of the issues presented and approval granted the court in compliance with precedent on the issue.

Here, the court found that the Plaintiff’s stated reasons in support of the request to seal the settlement did not establish the requisite “good cause” for sealing the court record to avoid a “clearly defined and serous injury.” The court also found that the Plaintiff’s stated reasons in support of its request for a sealing of the settlement did not warrant the granting of the court-sanctioned secrecy of the parties’ settlement filings and the records of the state funded judicial system.

As such, the Plaintiff’s request to seal the judicial record was denied.

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

Issues in Motion in Limine Deferred By Court Until Trial Must Be Formally Raised Again At Trial

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court issued a Rule 1925 Opinion addressed to the Superior Court and requested the Superior Court to reverse the trial court’s previous decision to grant the Plaintiffs a new trial.  

The trial court made this request in this Opinion after the trial court revisited the issue and found that the Plaintiffs had waived their objections to the Defendant’s medical expert witness by failing to renew the issues raised in the Plaintiff’s Pre-Trial Motion In Limine until after that expert for the defense had testified at trial.

According to the Opinion, this case arose out of a motor vehicle accident matter. During discovery, the Defendant produced reports from medical expert who offered an opinion that the Plaintiff’s back pain complaints were unrelated to the accident.

Prior to trial, the Plaintiff filed a Motion In Limine to preclude the Defendant’s expert from testifying. The trial court issued an Order indicating that the motion would be decided at the time of trial. 

However, at trial, the Plaintiff did not restate the issues raised in their Motion In Limine until after the jury had heard the testimony from the Defendant’s medical expert. 

The jury entered a defense verdict.

Although the trial court had initially granted the Plaintiff a new trial after the entry of the defense verdict, in the post-trial proceedings, the trial court ruled in this Rule 1925 Opinion for the Superior Court's review that, under Pennsylvania law, where a decision on a Motion In Limine is deferred by the trial court until the time of trial, a party who presented such a motion is obligated to restate the issues raised at trial in order to have them formally addressed by the trial court.   According to the law cited by this trial court, the failure to re-raise the Motion in Limine issues in a timely fashion at trial results in a waiver of those issues. 

In this regard, the trial court cited to the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222, 1223 (Pa. Super. 2011).

As such, in this Rule 1925 Opinion, the trial court requested the Superior Court to reverse the trial court Order that granted the Plaintiff a new trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Superior Court Affirms Grant of New Trial Based On Counsel Persistently Asking Questions About Inadmissible Matters

In the Non-Precedential decision by the Pennsylvania Superior Court in the case of Lopez v. Crown Equipment Corp., No. 3146 EDA 2022 (Pa. Super. May 21, 2024 Dubow, J., McLaughlin, J. and King, J.) (Op. by Dubow, J.), the Court affirmed a trial court’s granting of a new trial to a Plaintiff after a verdict was entered for a Defendant in a products liability case.

On appeal, the Superior Court noted that the defense counsel’s persistent questions about matters that were inadmissible in this strict liability matter served to prejudice the Plaintiff, thus requiring a new trial.

The Superior Court noted that the trial court judge was in the best position to observe how a trial is being conducted and to determine whether statements by counsel or a witness could have a prejudicial effect on the jury.

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 office of the Reed Smith law firm for bringing this case to my attention.

Judge Hertzberg of Allegheny County Rules That Act 6 Reductions Need Not Be Applied to Expenses for Treatment by Out-of-State Doctor

In the case of Yurek v. Bower, No. GD18012387 (C.P. Allegh. Co. July 3, 2024 Hertzberg, J.), the trial court issued a Rule 1925 Opinion following a motor vehicle accident and, as part of the post-trial issues presented, considered whether medical bills related to treatment provided to the Plaintiff by an out-of-state doctor are subject to reduction under Act 6 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1797.

According to the Opinion, following the subject accident, the Plaintiff underwent a cervical spine fusion surgery which was performed in Florida.

The case eventually went to trial and, as part of the verdict, the jury awarded $150,000.00 in past medical expenses, most of which was related to the cost of the surgical treatment that took place in Florida.

During the post-trial proceedings, one of the issues raised was the trial court’s refusal to reduce the amount of the past medical expenses award any more than down to the figure of $148,000.00.  This amount was the specific amount that was presented in evidence as to the actual cost of the surgery. 

The defense asserted that the trial court erred in denying the defense motion to mold the jury’s $150,000.00 past medical expenses award down to $9,882.00 under an application of Act 6, 75 Pa. C.S.A. §1797(a), of the Pennsylvania Motor Vehicle Financial Responsibility Law.

Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law allows for a recovery of medical bills at up to 110% of what Medicare would pay a provider for the same service.

According to the Opinion, at trial, Judge Hertzberg allowed the Plaintiff to introduce medical bills into evidence before they were reduced under the MVFRL.  The court noted at trial that it would allow for and consider any post-trial motions to mold any medical expenses award.   The court stated that it took this approach based upon the Superior Court’s decision in the case of Pittsburgh Neurosurgery Associates v. Danner which allowed for awards involving these types of bills to be presented at trial in full, subject to being molded in a post-trial proceeding.

In this Yurek case, the court emphasized that, during trial, the treating doctor from Florida testified that he was not licensed in Pennsylvania and that he did not perform any medical work in Pennsylvania. 

There was testimony that there were allegedly no doctors in Pittsburgh who would do the type of cervical spine fusion surgery that the Florida doctor performed on the Plaintiff in Florida. The doctor also testified that he charged $120,000.00 for performing the surgery.  An additional $28,000 was charged by the surgical center.  As such, the total expenses for the treatment performed in Florida was $148,000.

At trial, the Plaintiff also testified as to her belief that no other doctors in Pennsylvania would perform the type of surgery at issue. 

In his decision, Judge Hertzberg noted that his review of the evidence led him to conclude that, at least $148,000.00 of the $150,000.00 award of past medical expenses was related to the treatment provided by the Florida doctor. 

The judge agreed with the Plaintiff’s argument that because the Florida doctor was not a Pennsylvania licensed provider, the expenses related to the treatment provided by that out-of-state doctor was not subject to reduction under Act 6 of the Motor Vehicle Financial Responsibility Law.

Judge Hertzberg reasoned that the express language of “cost containment” provision in the MVFRL, which is applicable to medical expenses in a motor vehicle accident case, “twice references medical bill amounts ‘applicable in this Commonwealth under the Medicare program.’" 

Judge Hertzberg noted that this language also signaled to him that the statute’s application was limited to only apply to Pennsylvania licensed providers.  

In so ruling, Judge Hertzberg also reviewed a regulation regarding the act that was issued by the insurance department. Those regulations, found at 31 Pa. Code §69.11 state, in pertinent part, that the cost containment or payment limitation provisions apply to care rendered by Pennsylvania licensed providers.  

As such, Judge Hertzberg used this additional analysis to find that Act 6 reductions did not apply to the care rendered by the doctor at issue in this case where the doctor at issue was not a Pennsylvania licensed provider, where the treatment did not take place in Pennsylvania, and where the treatment rendered was not available in Pennsylvania.

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

Source: Article – “Motor Vehicle Law Doesn’t Require Reduction of Medical Bills For Procedure That Wasn’t Available in PA., Judge Rules,” By Riley Brennan of the Pennsylvania Law Weekly (July 9, 2024).

No Loss of Consortium Claims Recognized for Injury to Pets

In the case of Witters v. Smith, No. 1:23-CV-1441 (M.D. Pa. June 10, 2024 Connor, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving claims of intentional and negligent infliction of emotional distress relative to the shooting of the Plaintiff's dog.

In this matter, the only injury claimed was to the Plaintiff’s dog.  In this case, members of the Pennsylvania Board of Probation and Parole allegedly entered the Plaintiff's backyard without their permission and shot their pet dog.  The Plaintiff's pursued various claims.

The court ruled the Pennsylvania law requires that both intentional and negligent infliction of emotional distress claims require that the Defendant caused some physical harm to the Plaintiffs.  Here, no physical harm to the Plaintiffs was alleged.

The court additionally ruled that the law of loss of consortium claims does not extend to the loss or injury to pets of a plaintiff.

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

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

Source of image:  Photo by Charles Deluvio on www.pexels.com.  

Monroe County Judge Awards Dog Attack Plaintiff Over $500,000 After Entry of Default Judgment

Monroe County Court of Common Pleas

In the case of Porter v. Voelkl, No. 2341-CV-2022 (C.P. Monroe Co. April 26, 2024 Zulick, J.), the court entered an award of damages in a dog bite case in favor of the Plaintiff after the Plaintiff had secured a default judgment against the dog’s owners.

Based upon the evidence presented, the court awarded the Plaintiff $502,400.00.

According to the Opinion, the Plaintiff had been knocked to the ground and injured when a loose dog attacked the Plaintiff’s dog in the parking lot of the Plaintiff's veterinarian.  As the dog fight occurred, the leash of one of the dogs wrapped around the Plaintiff and the Plaintiff was dragged around the parking lot by the leash.  The Plaintiff suffered injuries to his knee and shoulder.

The Plaintiff sought treatment for injuries to his knee and shoulder, including physical therapy, surgery and other treatment modalities. The Plaintiff also presented claims for economic damages.

After the trial, the court entered an award in favor of the Plaintiff consisting of $200,000.00 for pain and suffering, $64,800.00 for loss of earnings or earning capacity, and $237,600.00 for loss of future earnings or earning capacity.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Issues of Fact Preclude Summary Judgment in Case of Fall Through Porch Railing

In the case of Rockey v. Stearns, No. CV-2022-00791 (C.P. Lyc. Co. Feb. 29, 2024 Carlucci, J.), the court denied a Defendant’s Motion for Summary Judgment in a case where a Plaintiff allegedly fell off of a porch when the railing broke loose from a structural post and collapsed.

The court denied the Motion for Summary Judgment after finding that there were genuine issues of material fact to be considered by a jury.

More specifically, the court noted that the fact that the railing collaposed allegedly under only a light load, and given the condition of the railing as described by the Plaintiffs, there was support in the records that a jury could find that the railing was in a defective condition.

The court also noted that, the fact that the railing had been repaired earlier, and that the homeowner had owned the home for forty (40) years, supported a possible conclusion by a jury that the homeowner had either actual or constructive notice of the allegedly defective condition of the railing.

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

Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Eastern District Court Finds Spoliation of Evidence Relative to Failure To Preserve Video After Plaintiff's Attorney Requested Preservation

In the case of Peronace v. City of Philadelphia, No. 2:23-CV-03943-KSM (E.D. Pa. April 16, 2024 Marston, J.), the court denied the city’s Motion for Summary Judgment in a prisoner’s rights case involving Monell issues.

According to the Opinion, the Plaintiff alleged that he had sustained multiple seizures while incarcerated and that the correctional officers delayed in providing him with medical assistance.

As part of this decision, the court addressed a Motion for Sanctions filed by the Plaintiff under an allegation that the prison officials intentionally failed to preserve video footage from outside of the prisoner’s cell.

The court reviewed this motion under F.R.C.P. 37(e) and found that, because the city should have known to preserve the video footage after receiving correspondence from an attorney for the Plaintiff to do so, and because there was no evidence that the city took any such steps, let alone reasonable steps to preserve the video footage, the court found that the videos were spoliated.

In terms of what sanction to impose, the court reviewed the factors set out under Rule 37(e) and ruled that, since it found that the city intentionally allowed relevant video footage to be overwritten by the video surveillance system, and considering the prejudice to the Plaintiff, the court fashioned a sanction and ruled that a jury may be instructed that the Defendant intentionally failed to preserve the disputed video evidence and that, therefore, the jury may presume that the lost video footage was unfavorable to the Defendant.

In a different portion of this Opinion, the court denied the city Defendant’s Motion for Summary Judgment after finding that issues of fact and testimonial differences existed on the case presented.

However, after finding that the Plaintiff did not submit evidence of any custom or policy of correctional officers violating inmates’ constitutional rights in the ways that the officers allegedly violated Plaintiff’s rights in this case, the court found that the city could not be held liable under the policy or custom prong of Monell. However, the court did find that the case against the city based upon an alleged failure of the city to supervise its correctional officers could proceed.

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


I send thanks to Attorney Jeffrey D. Schmidt of the Feasterville, PA law firm of Rovner, Allen, Rovner, Zimmerman and Schmidt for bringing this case to my attention.

Judge Mariani of Federal Middle District Court Addresses Trucking Accident Liability Issues

In the case of Galovich v. Morrissette, No. 3:21-CV-1523 (M.D. Pa. June 12, 2024 Mariani, J.), the court granted a partial summary judgment in a motor vehicle accident case that involved an accident between two tractor trailers on a highway.

The court noted that the Defendant’s filed Statement of Undisputed Facts presented in this case was deemed admitted due to the Plaintiff’s failure to file a response to the same as required by the local rules of court despite being put on notice of the need to file such a response.

The court otherwise ruled that there was no evidence to support the Plaintiffs’ punitive damages claim. The court noted that punitive damages are an “extreme remedy” that is only available in the most exceptional cases.

Here, the court found that there was no evidence to suggest that the Defendant driver had any subjective appreciation that anything he did was dangerous.

The court noted that a claimed violation of a traffic statute is not relevant to a driver’s subjective state of mind in assessing a claim for punitive damages.

The court additionally noted that the lack of any evidence to support punitive damages claims also barred any attempt by the Plaintiff to impose punitive damages vicariously on the driver’s employer.

The court additionally stated that an employer could not be held directly liable for punitive damages in any event.

The court also noted that a plaintiff cannot pursue a claim against an employer for negligent entrustment, hiring, supervision, or training when the employer admits that its employee was acting within the scope of employment when the accident occurred.

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

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

Source of image:  Photo by Brian Stalter on www.pexels.com.

Trial Court Requests Superior Court To Reverse Trial Court's Own Venue Ruling

In the case of Martinez v. Elsner Engineering Works, Inc., No. 230102505 (C.P. Phila. Co. Feb. 15, 2024 Anders, J.), the trial court issued a Rule 1925 Opinion in which it requested the Superior Court to reverse the trial court’s previous ruling that sustained a Defendant’s Preliminary Objections as to venue and transferred the case from Philadelphia County to York County. 

The trial court noted that, in this case, the Plaintiff sued multiple Defendants in Philadelphia County for personal injuries allegedly caused by a defective industrial product/equipment.

The Plaintiff’s Complaint alleged that one (1) Defendant designed, manufactured and sold the industrial equipment in Philadelphia County and that another Defendant was a successor-in-interest to the manufacturer.

The successor-in-interest Defendant filed Preliminary Objections and asserted that Philaelphia County was an improper venue.  In its original decision, the trial court agreed and ordered that the case be transferred to York County.

With this Opinion, the trial court concluded that, upon further review of the matter, its Order should be reversed and that Philadelphia should be found to be a proper venue for the case because a transaction or occurrence took place in Philadelphia County out of which the Plaintiff’s cause of action arose. More specifically, the Plaintiff had alleged that the original equipment manufacturer had defectively designed, manufactured, and sold the disputed equipment in Philadelphia County.

The trial court noted that it had reviewed additional case law authority that offered guidance as to whether proper venue in a particular county existed based upon business activity of a predecessor corporation of a current defendant in a matter. In that regard, the court found that a predecessor corporation’s activities could be attributed to its successor for purposes of a determination of proper jurisdiction.

As such, the trial court was now concluding that Philadelphia County was a proper venue in light of the Plaintiff’s allegations that the Defendant at issue was a successor-in-interest of the original equipment manufacturer.  The trial court, therefore, requested the Superior Court it reverse the trial court's prior decision.

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


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (June 5, 2024).

Source of image: Photo by Nick Fewings on www.pexels.com.

Trial Court Transfers Case Out of Philadelphia Under Doctrine of Forum Non Conveniens

In the case of Van Horn v. The Giant Company, No. 220303215 (C.P. Phila. Co. Nov. 13, 2023 Carpenter, J.), the court filed a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s Order granting the Defendant’s Motion to Transfer Venue on this slip and fall case from Philadelphia County to Montgomery County.

The Plaintiff filed suit after the Plaintiff fell at the Defendant’s store which was located in Montgomery Township. The Defendant filed a Motion to Transfer the case to the Montgomery Court of Common Pleas.

The Plaintiff failed to appear at the argument and the court granted the motion. A Motion for Reconsideration filed by the Plaintiff was denied.

The Plaintiff then filed a Notice to Appeal asserting that the trial court erred when it granted the Defendant’s Motion to Transfer Venue pursuant to the doctrine of forum non conveniens.

The court stated that the record before it revealed that only connection of this case to Philadelphia was that the Defendant, Giant, operated some supermarket stores in Philadelphia.

The Defendant submitted to the court some sworn affidavits from material witnesses confirming the difficulty in time commitment in terms of traveling to Philadelphia for trial.

The court found that the evidence clearly established that the hardship for the moving Defendants was more than a mere inconvenience and that there was no substantial relationship to any activities, events, or transactions in Philadelphia County.

As such, the trial court asked the Superior Court to affirm its Order transferring the case to Montgomery County under the doctrine of forum non conveniens.

Anyone wishing to review this decision may click this LINK.

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).

Trial Court Grants Preliminary Objections Asserting Improper Venue in Philadelphia County

In the case of Smith v. Rodriguez, No. 220602304 (C.P. Phila. Co. Nov. 14, 2023 Carpenter, J.), the court sustained Preliminary Objections raising improper venue and, as a result, transferred this Philadelphia County case to Northampton County.

In this Rule 1925 Opinion addressed to the Superior Court, the trial court requested an affirmance of its trial court Order sustaining the Preliminary Objections to improper venue.

The trial court reviewed the evidence and found that the Defendant’s conduct of coordinating shipments via the Philadelphia Airport or the Philadelphia Seaport was insufficient to meet the test of proper venue for Philadelphia County pursuant to Pa. R.C.P. 2179.

The court stated that there was no evidence in the record to support a finding that the Defendant did business in Philadelphia that was regular, continuous, and habitual.

The court found that venue was proper as to all Defendants in Northampton County. Given that the Plaintiff did not request another county as an alternative venue, the case was ordered to be transferred to Northampton County.

In this Rule 1925 Opinion, the trial court requested the Superior Court to affirm the trial court’s Opinion.

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

Source: The Legal Intelligencer Common Pleas Case Alert” Law.com (June 12, 2024).

Source of image:  Photo by Nick Fewings on www.unsplash.com.

Photos From Abington Heights National High School Mock Trial Champions' Trip to Meet the President

Back on Memorial Day, the National Champion High School Mock Trial Team from Abington Heights High School traveled to Washington D.C. on invitation to have breakfast in the White House with the President.  

With the Team being a bunch of kids from the Scranton area who made their name nationally by winning the National Championship in Wilmington, Delaware, it was only fitting that their next stop would be the White House.

Following the breakfast, each member of the team got to shake hands and say hello to President Biden himself, followed by a tour of the White House.  The President also asked his staff to show the team the Oval Office.

Congratulations once again to a great bunch of students from the Abington Heights High School in Clarks Summit, PA (including my son, Christopher).

Team Photo with the President

Team Photo in the Oval Office

Team Photo at the President's Podium

Court Addresses Proper Method of Serving Out-of-State Defendants

In the case of Morgan v. Compton, No. CV-22-01100 (C.P. Lyc. Co. Carlucci, J.), the court found that a pro se Defendant satisfied the three prongs required to open a default judgment entered against him on a Plaintiff’s Complaint for personal injuries.

According to the Complaint, the parties were formerly in a romantic relationship. With regards to that relationship, the Plaintiff filed a three (3) Count Complaint alleging various personal injury allegations against the Defendant, who resided in California.

The court confirmed that the Plaintiff mailed the Complaint to the Defendant by certified mail but the certified mail was returned marked “unclaimed.”

The Plaintiff then mailed the Complaint to the Defendant by regular mail, which was not returned.

Thereafter, the Plaintiff mailed the Defendant a Notice of Intention to take a Default Judgment by first class mail and certified mail. The certified mail envelope was returned as unclaimed.

No responsive pleading was filed by the Defendant thereafter. A default judgment was then entered.

When the Plaintiff requested a trial on damages, the Defendant attended a conference by telephone and advised the court that he intended to defend the case.

Thereafter, the Defendant filed a Petition to Open the Default Judgment and the court held a hearing by Zoom. The Defendant claimed that he mailed a written response to the Complaint but that filing did not appear in the court file.

Judge Carlucci ruled that Pa. R.C.P. 4003 and 4004 governed service by mail on out-of-state parties. Under those Rules, if service by mail is returned as unclaimed, then the Plaintiff must make service by another means that does not include ordinary mail.

The court found that, at the time the default judgment was entered, the court lacked jurisdiction over the Defendant due to a lack of any completion of service of process.

The court also found that the Defendant had promptly filed a Petition to Open a Default Judgment, had explained the reasons for the delay due to the improper service, and had alleged not only a defense of improper service under Rule 403 but had also denied the allegations in the Complaint.

As such, the court granted the Defendant’s Petition to Open the Default Judgment and the ordered the Defendant to file an Answer within twenty (20) days.

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


Source: Law.com, “The Legal Intelligencer Common Pleas Case Alert” (May 22, 2024).

Source of image:  Photo by Abstrakt XXcelence studios on www.pexels.com.