Presenting At This Week's Monroe County Bench Bar Conference

 

Monroe County Bench Bar Conference

Friday, October 4, 2024

Northampton Community College-Pocono Campus

Click here for a list of sessions* and presenters. *Schedule subject to change.

[Daniel E. Cummins and Paul T. Oven presenting 2024 Civil Litigation Update]

If you wish to register to attend the Monroe County Bench Bar Conference set for this Friday, October 4, 2024, please click this LINK.

If you choose not to register/pay on-line, email Paige at info2@monroebar.org with attendee name(s). Checks may be mailed to MCBA, 913 Main Street, Stroudsburg PA 18360 or call MCBA to pay via credit card over the phone.

Non-members are welcome to attend.  

Non-members may use the below contact information for any questions on how to register

Questions? Please call 570.424.7288 or email MCBA.

Attorney-Client Privilege Did Not Attach With Ploy Of Routing Documents Through an Attorney

In the case of HU.S. v. CVS ealth Corp., No. 2:16-CV-01582-GAM (E.D. Pa. Aug. 15, 2024 McHugh, J.), the court addressed the applicability of the attorney-client privilege asserted against discovery requests in a civil litigation matter involving an action against the retail pharmacy chain.

After reviewing the documents in question and concluding that a majority of the communications did not relate to any legal advice or questions that required the information to be identified as privileged, the court granted Plaintiff’s Motion to Compel the production of the documents in question.

According to the Opinion, the documents at issue, involve business communications over CVS’ shipping processes.

The court noted that the broad claim of attorney client privilege asserted by the Defendant was not proper in this case given that such protections are not automatically provided simply because documents may be routed through an attorney. The court reiterated that the documents at issue did not contain or reflect legal advice or request for legal advice and did not provide any indication that they were prepared in anticipation of litigation of any kind.

Judge McHugh noted that the “ploy” of using an attorney as an intermediary with another party for what is clearly an exchange of business information should not be endorsed by a court to serve as a means for a party to assert the attorney client privilege.

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

Source: “Article – Federal Judge Rejects CVS’ Attorney-Client Privilege Claims, Orders Retailer To Turn Over Communications In Qui Tam Action,” By Riley Brennan The Legal Intelligencer (Aug. 15, 2024).

Jurisdiction Found to Exist in Pennsylvania Due to Multiple Contacts With Pennsylvania

In the case of Duvall v. Ryder Truck Rental, Inc., No. 24-1920 (E.D. Pa. Aug. 9, 2024 McHugh, J.), the court denied a Defendant’s Motion to Dismiss on jurisdictional issues.  

The case involved alleged injuries sustained by the Plaintiff when a lift gate on a Ryder truck collapsed.

The Defendant's moved to dismissed the case principally on the grounds that the accident happened in Maryland.

The court noted that, even though the accident in question happened in another state, specific personal jurisdiction existed.   In this regard, the court noted that the Plaintiff’s employer had leased the truck at issue from the Defendant in Pennsylvania. 

It was also noted that the record revealed that the alleged negligent maintenance of the truck, which was allegedly a cause of the accident, occurred in Pennsylvania.   

The court additionally noted that the Plaintiff was a Pennsylvania resident and received worker’s compensation benefits from a Pennsylvania employer.

Based on these reasons, the Court denied the motion to dismiss.

Anyone wishing to review this decision may click this LINK.

Superior Court Rules That Seat Belt Evidence Can't Be Considered Where Plaintiff Took Seat Belt Off Just Before Accident

In a non-precedential decision in the case of Lucykanish v. Flurer, No. 541 EDA 2024 (Pa. Super. Aug. 30, 2024 Murray, J., Lane, J. and Stabile, J.)(Op. by Murray, J.)(Stabile, J., concurring, the Superior Court noted that it felt compelled to reverse the entry of summary judgment in a motor vehicle accident case in which the Plaintiff alleged negligence on the part of the driver for stopping quickly at a point in time after the Plaintiff had removed a seat belt to retrieve a cell phone from the floor of the vehicle.

The court ruled that Pennsylvania’s seat belt law 75 Pa. C.S.A. §4581(e) generally prohibits evidence of seat belt non-use as being used to show contributory negligence on the part of an injured party.

After reviewing the trial court's decision in which summary judgment was granted on the basis, in part, that no negligence on the part of the defendant-driver was shown to be the cause of the Plaintiff's alleged injuries where the Plaintiff had taken their seat belt off before the Defendant driver had stopped short due to a situation on the roadway ahead, the Superior Court noted that the trial court's reliance on the fact that the Plaintiff was not seat belted was an improper consideration.  The Court noted that reference to that evidence should have been excluded from the analysis.

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.

Source of image:  Photo by Ryo Kawasaki on www.unsplash.com.

Corrected Link For Judge Nealon's Hills and Ridges Decision in White v. Nesbeth Case

Here is the corrected LINK for the case highlighted in the September 27, 2024 Tort Talk post on Judge Terrence R. Nealon's hills and ridges decision in the White v. Nesbeth case.

Apologies for any confusion or consternation caused by the incompleted Link in the original post.

Summary Judgment Granted in Lackawanna County Slip and Fall Case

In the case of White v. Nesbeth, No. 2022-CV-2147 (C.P. Lacka. Co. Sept. 17, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted summary judgment in favor of a Defendant homeowner under the hills and ridges doctrine in a slip and fall case.  The Opinion provides an excellent, thoroughly researched overview of the current status of the hills and ridges doctrine in Pennsylvania.

According to the Opinion, the Plaintiff, who was considered to be an invitee, and who was making a Door Dash delivery to the Defendants’ residence during an ongoing storm of “freezing rain and sleet,” allegedly slipped and fell on the homeowner’s sidewalk.

According to the record before the court, the Plaintiff’s deposition testimony acknowledged the existence of persistent freezing precipitation falling at the time of the incident. The Plaintiff additionally conceded that he did not observe or feel “any kind of an accumulation.” The Plaintiff additionally confirmed that he did not “notice anything” on the sidewalk.

After the completion of discovery, the Defendants filed a Motion for Summary Judgment relying upon the hills and ridges doctrine.

The Plaintiff responded by arguing that, since the landowner applied rock salt to the sidewalk approximately forty-five (45) minutes before the Plaintiff arrived, the hills and ridges doctrine was in applicable due to “human intervention” which allegedly altered the “natural accumulation” that was falling at the time.

In granting summary judgment, Judge Nealon noted that there was no dispute that general slippery conditions prevailed at the time of the incident as a result of a continuous winter event and precipitation.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon also emphasized that no party or witness had identified or specifically described the condition upon which the Plaintiff allegedly fell.

In his Opinion, Judge Nealon pointed to appellate case law holding that a landowner is not obligated to salt their sidewalk while winter precipitation remains in progress.  He also ruled that, in any event, since the record lacked any evidence that the application of rock salt somehow created dangerous condition or increased the natural hazards of the existing ice, the hills and ridges doctrine still applied and governed the negligence claim presented.

Judge Nealon ultimately held that, even when the record is examined in the light most favorable to the Plaintiff as required by the applicable motion for summary judgment standard of review, the evidence presented was insufficient to establish a prima facie cause of action under the hills and ridges doctrine.

Accordingly, summary judgment was entered in favor of the homeowner.

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

Judge Nealon Provides Thorough Review of Current Status of Law on Proper and Timely Service of Process

In his recent detailed decision in the case of Potts v. Notariani, No. 2022-CV-1161 (C.P. Lacka. Co., Sept. 19, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas provided a thorough analysis of the current status of the law applicable to the requests for dismissals of civil litigation matters due to a Plaintiff's failure to complete service in a timely fashion.

In this case involving a pro se prisoner Plaintiff, the record confirmed that the Plaintiff did not follow the Rules of Civil Procedure for the completion of service of original process.  Service had not been completed over the 30 months since the lawsuit was filed.

As such, Judge Nealon ruled that the Court had no jurisdiction over the matter and the case was therefore dismissed.

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

Sponsorship Opportunities Available For Lackawanna Pro Bono Annual Fundraising Gala

Motion To Dismiss Personal Injury Claims Against Lyft Denied

In the case of Doe v. Lyft, Inc., No. 2:23-cv-03990-KSM (E.D. Pa. July 19, 2024 Marston, J.), the court addressed a Motion to Dismiss filed by a transportation network company, Lyft, Inc., and its former driver in connection with an alleged sexual assault committed by the driver.  The court granted the Motion to Dismiss but allowed the Plaintiff the right to amend.  

In part, the court held that the Plaintiff failed to allege an actionable claim for negligent supervision where she alleged, for the first time in opposition to the Defendant’s Motion to Dismiss, that its driver was the subject of four prior passenger complaints.  The court allowed the Plaintiff leave to file an Amended Complaint to more specifically plead the negligent supervision claim.  

The court also found that the Plaintiff’s negligent undertaking claim failed for two reasons. First, the court found that the Plaintiff failed to allege that the Defendant undertook to protect her from its ride share driver.  While the Plaintiff seemed to link the Defendant’s provision of ride share services with a duty to protect her from harm as a rider, the Plaintiff did not allege a “specific undertaking” by the Defendant in that regard.  

Additionally, the court found that, even if the Defendant allegedly undertook a duty to protect the Plaintiff, the Plaintiff failed to state a claim for negligent undertaking because she asserted only that the Defendant should have provided additional safety features on its platform, not that it implemented its existing scheme negligently.  

Accordingly, the court dismissed the Plaintiff’s negligent undertaking claim.  However, this claim was dismissed without prejudice to the Plaintiff’s right to file an Amended Complaint.

The Plaintiff’s separate negligent misrepresentation claim broadly alleged that the Defendant falsely advertised itself as a safe rideshare option.  The court dismissed this part of the claim after finding that, to the extent the Plaintiff did allegedly identify actionable statements by the Defendant in its marketing materials, the Plaintiff still failed to plead facts suggesting that these statements were false and, as such, the Plaintiff had not stated a valid claim of negligent misrepresentation.  Although the court dismissed this claim as well, the Plaintiff was again allowed an opportunity to file an Amended Complaint.

The court also dismissed the Plaintiff’s claim for punitive damages, without prejudice.  The court allowed the Plaintiff the opportunity to replead those allegations should she have facts to support the same. 

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

Source “The Legal Intelligencer Federal Case Alert,” www.Law.com (Aug. 9, 2024). 

Source of above image: Photo by Thought Catalog on www.unsplash.com.

Pennsylvania Superior Court Provides Ruling on Stacked UIM Coverage Issues

In the case of Baclit v. Sloan, No. 793 WDA 2023 (Pa Super. Aug. 16, 2024 Lazarus, P.J., Panella, P.J.E., and Beck, J.) (Op. by Beck, J.), the Pennsylvania Superior Court addressed an issue regarding UIM stacking and coverage in a case it labeled as a one of first impression.

The Plaintiff sustained injuries while aiding another driver who had been involved in a single car accident. The driver who had been involved in an accident had crashed into a retaining wall of a bridge.

The Plaintiff, who had been driving a vehicle owned by his mother, had stopped and gotten out of his vehicle to provide assistance.  While the Good Samaritan Plaintiff was assisting the injured driver of the other vehicle, the Plaintiff fell from the bridge retaining wall and suffered injuries that resulted in his death.

The liability carrier for the driver who had crashed into the bridge tendered its $100,000.00 limits to the Plaintiff’s estate.

The Plaintiff’s estate also recovered the UIM benefits available under the vehicle he was operating which was owned by his mother.

At the time of the incident, the Plaintiff’s decedent was also insured by Progressive relative to his separate motorcycle, which policy included $15,000.00 in UIM coverage. Progressive paid those limits in accordance with the terms of that policy.

At the time of his death, the Plaintiff’s decedent was also the owner of a trucking business. Under that trucking business, there was a commercial automobile insurance policy under which the company was the named insured and the Plaintiff's decedent was designated as a driver.

There was no waiver of stacking signed by the deceased under that policy. The decedent had paid the premiums for stacking.

Under the facts of this case, the insurance company  that covered the decedent's business had charged a premium for stacking when there was just one (1) vehicle on the policy.  That carrier then denied that stacking applied.  The Plaintiff asserted that this position by the carrier should have been viewed as an improper de facto waiver of stacking.

Both the trial court and the Superior Court cited to the Pennsylvania Supreme Court of Gallagher v. Geico and emphasized that the Plaintiff's decedent paid increased premiums to obtain stacked UIM benefits under the policy and, as such, reasonably expected to receive those benefits.

Here the Superior Court reasoned that, unless the Plaintiff's decedent was a named insured under the policy, that carrier’s limited definition who can constitute an “insured’ for purposes of collecting stacked UIM benefits under this single vehicle business automobile insurance policy would violate the Motor Vehicle Financial Responsibility Law. The court found that this was so given that the carrier, based on its argument, would be asserting a waiver of stacking despite the premium charged and paid, without having secured any signed waiver of such stacking coverage of the injured party.

Ultimately, the Pennsylvania Superior Court ruled that the decedent was an insured under the policy and was entitled to stacked UIM coverage.

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


I send thanks to Attorney Walt McClatchy of McClatchy Law in Philadelphia for bringing this case to my attention.

Court Chides Parties' Post-Trial Submissions in Medical Malpractice Case

In the case of Melendez v. Mo, Aug. Term 2018, No. 01939 (C.P. Phila. Co. Oct. 2, 2023 Levin, J.), a court addressed post-trial motions in a medical malpractice case.

In its decision, the court noted, at the outset, that it was surprised by the parties’ post-trial submissions in terms of the quality of the same. The court noted that the Defendants’ post-trial motion was a scattershot, stream of consciousness list of complaints with no discernable order or plan. The court also noted that the Defendants’ post-trial brief in support of its post-trial motion appeared disconnected from the post-trial motion itself, never referring to the motion or any of the various arguments. The court noted that some of the Defendant’s arguments from the brief were waived as they were not even mentioned in the motion itself.

With respect to the Plaintiffs’ responsive brief, the court also found this submission to be rambling in failing to address many of the issues raised by the Defendant at any meaningful length, if at all.

The court noted that it was unaware of a sanction that might apply where a non-moving party failed to address the majority of a moving party’s issues in a court ordered brief but that if such a sanction existed, it would have applied in this case. See Op. at 16-19.

In the end, the court found that the issues raised in the Defendants’ post-trial motions in this case involving an $18 million dollar verdict were either waived or without merit.

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


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

Allegations of Recklessness Continue to Be Upheld

In the case of Celli v. Endless Mountain Extended Care, LLC, No. 2023-CV-5141 (C.P. Lacka. Co. Sept. 12, 2024 Nealon, J.), the court addressed various issues regarding the pleadings in a trip and fall case.

According to the Opinion, a Lackawanna County Plaintiff was undergoing in-patient treatment at a Wyoming County facility when he fractured his ankle during recreational activities on the Plaintiff’s sports field.

The court addressed various Preliminary Objections filed by the Defendant clinic and the Defendant landowner.

With regard to one of the Preliminary Objections, the court denied the objection to the allegations of recklessness and continued to trend of cases holding that recklessness can be pled in any case where negligence is alleged.  Judge Nealon again referenced the rationale that, given that recklessness is an allegation as to a state of mind, under Pa.R.C.P. 1019 and appellate precedent reviewing the same, allegations of recklessness are permitted to be generally pled under Pa. R.C.P. 1019.  

As part of its analysis of this issue, the court pointed, in part, to the article entitled "Pleading for Clarity:  Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters" by Daniel E. Cummins, 93 Pa. B.A.Q. 32 (Jan. 2022).

The court also separately allowed the claims of punitive damages to proceed after finding that sufficient facts were pled to support that claim..

Judge Terrence R. Nealon
Lackawanna County

With regards to other issues raised, the court found that, given that the patient had charged the owner of the premises with misfeasance for personally participating in the tortious activity, the Plaintiff did not need to pierce the clinic’s corporate veil in order to sue the owner. 

Rather, the court found that the Plaintiff may instead impose the individual liability on the owner under a participation theory where it is alleged that the owner of the premises allegedly directed the drilling and digging of the various holes in that field as part of a proposed facility expansion.  It was also noted that the landowner had also encouraged the clinic’s patient to participate in recreational activities on that field even though the owner knew that other patients had been previously injured due to the numerous holes the field that were allegedly concealed by overgrown grass.

Lastly, the trial court rejected any venue challenge by the Defendants after finding that the venue in Lackawanna County was proper as to the owner given that the owner resided in Lackawanna County and was served with original process in Lackawanna County.  Judge Nealon also reasoned the venue was proper as to all Defendants where the patient was asserting joint and several liability against the clinic and the owner. Accordingly, the court found that the venue was proper as against both Defendants under Pa. R.C.P. 1006(c).

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

Case Dismissed For Lack of Activity Where Plaintiff Did Not Document Any Steps To Complete Service

In the case of Villacreses v. Kalahari Resorts, No. 4259-CV-2023 (C.P. Monroe Co. April 17, 2024 Zulick, J.), the court granted the Defendants’ Preliminary Objections against the Plaintiff’s failure to timely serve original process and also due to the fact that the statute of limitations had expired.

According to the Opinion, the case involved a slip and fall that occurred on August 1, 2021.

The Complaint was filed on July 12, 2023 but was not served on the Defendants with in the thirty (30) days required by Pa. R.C.P. 401(a).

Approximately three (3) months later on October 11, 2023, the Complaint was reinstated. The reinstated Complaint was served on the Defendants on October 23, 2023 and on another set of Defendants on November 1, 2023. The Defendants then filed the Preliminary Objections at issue.

In its decision, the court noted that, in the Plaintiff’s Response to the Preliminary Objections, the Plaintiff did not provide any further information about her efforts to obtain service. Nor did the Plaintiff request a hearing to present evidence on her efforts to make service. Nor did the Plaintiffs submit any documentary evidence or depositions on the issue.

Although the Plaintiffs asserted in their response that they did make efforts, the court noted that the court’s docket did not reflect any action on the Plaintiffs’ part from the date of the filing of the Complaint in July of 2023 until a Praecipe to Reinstate was filed in October of 2023, three months later.

Judge Zulick noted that, based upon the recent Supreme Court precedent, including the Gussom decision, where the evidentiary burden is placed upon the Plaintiff to show a good faith effort to complete service and where the law states that “proof” is required, the Plaintiff cannot rely upon a docket that shows no activity or a response to Preliminary Objections that does not detail any good faith effort to complete service.  Judge Zulick also noted that a Plaintiff cannot rely upon statements in a Brief in opposition to the Preliminary Objections. 

The court noted that, in this case, similar to the facts in the Gussom case, an attempt at service was timely made by the Sheriff, but the Plaintiff allowed 3 ½ months to then go by from that point with no further activity.

Judge Zulick reiterated that the Supreme Court made clear in Gussom that a Plaintiff’s attorney must make a record of the good faith attempts that have been completed to obtain service.  Given that no such record was created in this matter, the court sustained the Preliminary Objections based upon a lack of timely service and dismissed the Complaint.

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

Plaintiff's Attorney's Reference to A Busy Schedule Rejected as an Excuse for Failure to Timely Serve a Defendant

Being Busy as a Bee No Excuse

In the case of Gunter v. Drexel University, No. 2:24-cv-01443-JDW (E.D. Pa. July 12, 2024 Wolson, J.), the court denied the Plaintiff’s request for relief from the court’s Order of dismissal which had been entered due to the Plaintiff’s failure to timely serve the Defendant with her federal court Complaint. 

The court held that the excuse preferred by Plaintiff’s counsel, namely that she was a solo practitioner with a busy schedule, failed to demonstrate good cause or excusable neglect for her failure to timely serve the Defendant.

According to the Opinion, over two (2) months after the Plaintiff filed suit against the Defendant for alleged disability discrimination, the court sua sponte ordered that the Plaintiff accomplish service by a specified date and cautioned the Plaintiff that her suit would be dismissed if she failed to provide proof of service by the court’s deadline. When the Plaintiff did not complete service, the court dismissed the Complaint.

With regards to the follow-up Motion addressed in this decision, the court dismissed the Plaintiff’s Motion for Relief from the dismissal and held that she failed to demonstrate grounds for relief pursuant to F. R.C.P. 60(b)(6).

The court rejected the Plaintiff’s attorney’s reference to her busy calendar as an excuse and noted that counsel was accountable for all of the cases that she took on and was obliged to manage her case load accordingly.

Judge Wolson started his Opinion by writing, "Lawyers are busy people.  It's an inescapable part of the profession.  But that doesn't excuse them from complying with deadlines, both personal and professional."

The court otherwise noted that the Plaintiff failed in the requirement to show that, without relief from the court’s order, “an extreme and unexpected hardship would occur.”  

Accordingly, the court denied Plaintiff’s Motion for Reconsideration of its Order of Dismissal, which the court noted had been entered without prejudice.

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


Source “The Legal Intelligencer Federal Case Alert,” www.Law.com (Aug. 9, 2024).

Authentication of Text Messages and Emails Addressed by Superior Court

In the case of Walker v. Walker, No. 787 WDA 2023 (Pa. Super. Aug. 9, 2024 Dubow, J., Kunselman, J., and Nichols, J.) (Op. by Dubow, J.), which involved a criminal court case, the Pennsylvania Superior Court found that the trial court did not abuse its discretion in admitting text message and emails into evidence after a finding that those messages were sufficiently authenticated by the testimony of a witness.

The appellate court found that the trial court did not abuse its discretion and had properly applied Pa.R.E. 901 which Rule of Evidence governs the authentication of evidence.

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

Although this is a criminal court case, the rationale of the court regarding the admissibility of text messages and social media would likely equally apply in a civil litigation context.


Source “The Legal Intelligencer State Appellate Case Alert” www.Law.com (Aug. 27, 2024).

Federal Court Vacates Default Judgment Where Record Confirms Defendant Was Not Served

In the case of McLaughlin v. Amazon.com, Inc., No. 3:23-cv-839 (M.D. Pa. Aug. 27, 2024 Munley, J.), the court granted a Defendant’s Motion to Vacate a Default Judgment in a case involving a playpen that was sold on Amazon.com that allegedly caused the death of the Plaintiff’s child.

According to the Opinion, the defense argued that the Defendant was not properly served within ninety (90) days of the Complaint being filed. Rather, Amazon claimed that the Plaintiff sent to the Defendant a request for a waiver of service to which Amazon did not reply. The Plaintiff relied upon an argument of service based upon a return receipt indicating that the Plaintiff had been sent to Amazon’s legal department and that it had been received by an agent identified only by initials. The Plaintiff’s claims that these receipts were proof of service of the Complaint on the Defendant.

Judge Munley noted that the distinction between sending a waiver of service to the Defendants and serving the Complaint on the Defendants was critical to the Plaintiff’s request for the entry of a default judgment.

Judge Julia K. Munley
M.D. Pa.

After reviewing the Plaintiff’s exhibits again, the Court confirmed that Amazon was correct in that it had not been served with the Summons or the Complaint.

The Court agreed with the Defendants that the default judgment should not been entered in the first place given that service had not been completed.  The court found that the default judgment was, therefore, void.

With regards to the Defendant’s related Motion to Dismiss the Complaint, the Court granted the Plaintiffs a thirty (30) day extension to serve the Defendant with the Summons and the Complaint. The Court found that the Defendants would most likely not be prejudiced by that extension of time.

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


Source: Article – “Judge Voids Default Judgment Against Amazon Due to Procedural Error, Grants Extra Time for Proper Service” by Riley Brennan of the Legal Intelligencer (Aug. 29 2024).

Save the Date: November 14, 2024 - Lackawanna Pro Bono Gala

 

Federal Court Reduces $20 Million Dollar Punitive Damages Award

In the case of Holmes v. American Homepatient, Inc., No. 4:21-CV-01683 (M.D. Pa. Sept. 6, 2024 Brann, C.J), the court addressed a number of post-trial issues following the entry of a $20.5 million verdict in favor of a Plaintiff in a Section 1981 hostile work environment claim.

Of note, the jury awarded the Plaintiff $500,000.00 in compensatory damages and $20 million dollars in punitive damages.

While the judge held up most of the jury’s findings in his Opinion, the court did find that the award of punitive damages was unconstitutional. After reviewing the law and settling on a 2 to 1 ratio, Judge Brann reduced the punitive damages award to $1 million dollars.

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

Source: Article – “Federal Judge Cuts $20M Punitive Damages Award To $1M Over Constitutionality Concerns” By Riley Brennan of the Legal Intelligencer (Sept. 6, 2024).

Third Circuit Affirms Denial of Post-Trial Motions in a Trucking Accident Case

In the case of Sweigart v. Voyager Trucking Corp., No. 23-2397 (3d Cir. July 29, 2024 Bumb, J., Jordan, J., and Smith, J.) (Op. by Bumb, C.J.), the Third Circuit affirmed a trial court decision denying post-trial motions in a trucking accident case that resulted in verdict for the Plaintiff in the amount of $25 million.

In this case, the court ruled that there was no abuse of discretion by the trial court in denying a bifurcation of the liability and damages issues.  The defense sought bifurcation given the serious nature of the Plaintiff's injuries and the fear that that evidence would "infect" the jury's decision on the liability issues.   The court noted that many personal injury case involved serious injuries. The Third Circuit also stated that to hold that a trial court abuses its discretion in denying bifurcation just because a case involves serious personal injuries would flip the presumption against bifurcation. Under the law, the jury is presumed to be able to follow jury instructions to compartmentalize the evidence.

The court also noted that the fact that a juror fainted at trial in response to the presentation of graphic injury evidence does not require a mistrial. The appellate court found that it was not an abuse of discretion by the trial court to deny a mistrial motion where the jury questioning confirmed that the juror could continue and remain impartial.

The appellate court also found that the fact that the Plaintiff’s treating physician rendered medical help to the juror that fainted also did not support a mistrial since the physician was only a witness and to an opposing party.

The court noted that, on appeal, a trial judge’s estimation of a prospective juror’s impartiality shall not be second guessed.

Turning to other issues, the appellate court held that the trial court properly balanced the sudden emergency doctrine with an instruction on the assured clear distance rule. The court agreed that it was for the jury to decide if a sudden emergency existed.

The appellate court also found that it was not an abuse of discretion to exclude evidence of the Plaintiff’s lack of a motorcycle license. The court noted that there was no causal connection between the accident and the Plaintiff’s lack of a motorcycle license. 

The court also found that it was not an abuse of discretion to exclude videos of reckless driving by the Plaintiff at other times. The court noted that prior bad acts cannot be admitted to show a propensity to act in the same way all the time. The evidence at issue in this case did not rise to the level of habit evidence.

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


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

Summary Judgment Granted in Favor of Porsche Due to Failure of Plaintiff's Expert Testimony

In the case of Riad v. Porsche Cars M.A. Inc., No. 18-5175-KSM (E.D. Pa. July 30, 2024 Marston, J.), the court granted summary judgment to the defense in a products liability action.

The court noted that the Plaintiff failed to prove causation, which is necessary element in a products liability action. The court additionally noted that causation requires expert testimony where the issues are medically complex and such testimony must be to a reasonable degree of medical certainty in order to be admissible.

In this case, the court noted that the Plaintiff’s expert denied having any opinion to a reasonable degree of medical certainty. The court noted that testimony using phrases like “likely” or referring to “possibilities” do not equate to testimony to a reasonable degree of medical certainty.

Given that the Plaintiff was found to be without admissible causation evidence, the Defendant was granted summary judgment.

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

Speaking at Lackawanna County Bench Bar Conference on September 27, 2024 -- Need CLE Credits?

 

Partial Summary Judgment Granted in favor of Pharmacist

In the case of Wolking v. Linder, No. 3:23-CV-806 (M.D. Pa. Aug. 8, 2024 Mannion, J.), the court granted partial summary judgment in a case involving a negligence action against pharmacists.

The court ruled that pharmacists owe a duty of care to their patients to act on obvious facial discrepancies with prescriptions.

In this matter, the court dismissed the Plaintiff’s allegations of punitive damages given that the Plaintiffs had not produced evidence in support thereof,

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

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

Source of image:  Photo by Alexander Grey on www.pexels.com.

Dead Man's Act Still Alive And Well

Although the Dead Man's Act is riddled with exceptions, it can still sometimes apply to dramatically affect a case.

In the case of Loeffler v. Douglass, No. CI-22-00454 (C.P. Lanc. Co. Aug. 13, 2024 Brown, J.), the Court held that the Dead Man’ s Act applied to prevent a plaintiff from testifying as to any element of negligence. 

The Dead Man's Act precludes "any person whose interest shall be adverse" to the interests of the deceased party from testifying "to any matter occurring before the death" of the deceased.  42 Pa.C.S.A.  Section 5930.  The Act was passed to prevent the injustice that may arise from permitting a surviving adverse party to give testimony that is favorable to himself or herself and to the detriment of the decedent's interest and that the decedent's representative cannot rebut.

This case arose out of a motor vehicle accident. The plaintiff filed suit against the allegedly negligent defendant driver. 

The defendant-driver served plaintiff with interrogatories and requests for production of documents. 

Thereafter, before plaintiff responded to defendant's discovery, the defendant driver died.  Counsel for the defendant-driver withdrew the discovery. 

Subsequently, the administrator of the estate of the defendant driver was substituted as a defendant. 

The defendant administrator served plaintiff with requests for production of documents and served several non-parties with subpoenas.  Notably, the defense did not serve interrogatories and had not yet requested any depositions.  The defendant administrator also filed a motion in limine, based on the Dead Man’s Act, to preclude plaintiff from testifying as to any element of negligence. 

The plaintiff claimed that the protections of the Dead Man’s Act had been waived by virtue of the discovery which had taken place. 

The Court rejected these arguments and found that neither the type discovery propounded by the defendant-driver, while alive, nor the discovery propounded by the defendant administrator after the death of the defendant-driver served to waive the protections afforded by the Dead Man’s Act.  The Court reviewed the Dead Man's Rule and emphasized that here, the defense had not served interrogatories and had not yet requested testimony by any other means.  As such, the discovery waiver did not apply because the defense had not requested any testimony with the discovery requests propounded.

Accordingly, based on an application of the Dead Man's Act, the Court held that plaintiff was precluded from testifying as to any element of negligence.  The Court added that, if plaintiff could establish a prima facie case of negligence by other means, then plaintiff would be allowed to testify about the extent of plaintiff’s damages.

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

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

Presenting at Monroe County Bench Bar - Early Bird Registration Open - Non-members Welcome

 

Monroe County Bench Bar Conference

Friday, October 4, 2024

Northampton Community College-Pocono Campus

Early Bird Registration is OPEN!

Click here for a list of sessions* and presenters. *Schedule subject to change.

[Daniel E. Cummins and Paul T. Oven presenting 2024 Civil Litigation Update]

To register and pay on-line go to monroebar.org or

scan the QR code below.

On-line purchases are subject to processing fees.

If you choose not to register/pay on-line, email Paige at info2@monroebar.org with attendee name(s). Checks may be mailed to MCBA, 913 Main Street, Stroudsburg PA 18360 or call MCBA to pay via credit card over the phone.

Non-members are welcome to attend.  

Non-members may use the below contact information for any questions on how to register

Questions? Please call 570.424.7288 or email MCBA.

Summary Judgment Granted in Premises Liability Case Due to Lack of Actual or Constructive Notice

In the case of Cummins v. Wal-Mart Stores East, L.P., No. 1:22-CV-01205(M.D. Pa. July 24, 2024 Schwab, Mag. J.), the court granted a Motion for Summary Judgment in a slip and fall case after finding that the Plaintiff failed to produce any evidence of actual or constructive notice of any allegedly defective condition on the part of the store.

The court noted that the record confirmed that the lack of actual notice was not disputed. In terms of any allegation of construction notice, the court confirmed that there was no evidence that the claimed spill had existed for a significant period of time such as evidence of any footprints through the area.

The court also ruled that the fact that the spill was allegedly in multiple aisles did not, in and of itself, establish a duration of the subject spill.

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

Summary Judgment Granted in Case Where Plaintiff Did Not Know What Caused Her to Fall

What caused you to fall?

In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa. Super. Aug. 2, 2024 Olson, J., Stabile, J., and McLaughlin, J.) (Op. by Olson, J.), the court affirmed the entry of summary judgment in a premises liability fall down case.

According to the Opinion, the Plaintiff denied knowing what caused her to fall at a brew pub and offered no other factual evidence in support of her claims presented.

According to the Opinion, the Plaintiff confirmed that there was no food or liquid on the floor that could have caused her to fall.  Although she initially suggested that her fall may have been caused by uneven floor tiles, or an uplifted section of a floor mat, or a wave in a floor mat, she confirmed that she was not certain.  

The Plaintiff then testified that uneven floor tiles did not cause her to fall and that perhaps she instead fell due to the heel of her shoe catching a rubber edge of a floor mat.  The Plaintiff confirme that she did not know how her heel might have caught the rubber edge of a mat or whether or not the edge of that rubber mat was sticking up at the time she allegedly encountered it.

The court additionally noted that the trial court had properly precluded the Plaintiff’s liability expert because that expert’s opinion expressed no specialized knowledge, failed to explain the expert’s conclusions with specific references to cited standards, and where the expert failed to offer opinions specifically tailored to the facts established by the record. 

With regards to spoliation issues raised by the Plaintiff in this matter, the court indicated that the record revealed that no notice was given to the Defendant about the need for the videos until after the surveillance videotapes were routinely overwritten.

The court emphasized that the duty to preserve evidence is not boundless.

It was also emphasized that a deleted video causes little prejudice to a litigant who has no proof of liability such as was the case in this matter. The court noted that absent any affirmative evidence of liability, spoliation allegations in and of themselves cannot take the place of carrying the Plaintiff’s burden of proof on the liability issues presented.

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

Lessons In Federal Court Complaint Drafting

In the case of Fike v. Global Pharma Healthcare Private, Ltd., No. 5:23-CV-2981 (E.D. Pa. July 18, 2024 Leeson, J.), the court granted in part and denied in part a Motion to Dismiss filed by Amazon in a products liability case.

In his decision, Judge Leeson ruled that the Complaint was sufficiently pled so as to avoid dismissal under an argument of a shotgun pleading. However, the court noted that the allegations against “Defendants” were improperly grouped together.

The court also struck the Plaintiff’s claims alleging a post-sale duty to recall in this products liability case since no such claim is recognized under Pennsylvania law.

The court additionally ruled that shippers or distributors of products do not owe a duty of inspection or investigation into the products that they ship on to customers.

In this case, the court noted that the risk of a bacterial contamination from the product at issue was not foreseeable as to impose a duty upon the shipper. Imposing such an inspection duty on a shipper could hamper the shipper’s ability to distribute and ship products, which is an extremely socially useful service provided to the public at large.

The court additionally struck the punitive damages claim alleged by finding that punitive damages allegations cannot be based on allegations presented “on information and belief.”

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Christian Wiediger on www.unsplash.com.

Federal District Judge Crafts Sanction for Discovery Violations

In the case of Domus BWW Funding, LLC v. Arch Ins. Co., No. 2:23-CV-00094-JDW (E.D. Pa. Aug. 12, 2024 Wolson, J.), the court issued discovery sanctions against the Defendant insurance company related to discovery issues and “sloppy” discovery responses by the carrier. The court declined to impose a monetary sanction and instead decided to create jury instructions regarding the carrier’s actions.

More specifically, the court noted that the deletion of emails during discovery was considered troubling but was also procedural as the insurance company underwent a company wide transition.

In the end, the carrier was hit for sanctions due to his “cavalier attitude” towards its discovery obligations after the carrier was found to have failed to preserve evidence related to the lawsuit.

The judge imposed sanctions under FRCP 37(e)(1) after finding that the Plaintiff was prejudiced by the carrier’s deletion of emails by an underwriter of the policy at issue. As a remedy, the court noted that it was craft appropriate jury instruction regarding evidence of the insurance company’s failure to preserve the emails.

In his decision, the court also faulted the Plaintiff for not bringing the issues to the attention of the court until a summary judgment motion was filed. The court noted that a post-hoc Motion for Sanctions is not the appropriate vehicle to address the prejudice of the insurance company’s negligent approach towards the discovery obligations.

Judge Wolson noted that, although the discovery may, at times, amount to drudgery that lawyers may not enjoy, lawyers have an obligation to take their discovery duties seriously.

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


Source: Article - “Citing ‘Sloppy’ Discovery, Pa. Federal Judge Imposes Sanctions on Insurance Carrier, Calls Out Counsel,” By Marianna Wharry of the Legal Intelligencer (Aug. 15, 2024).

Save the Date: November 14, 2024 - Pro Bono Gala

 

Third Circuit Applies Regular Use Exclusion as a Valid Exclusion

In a recent non-precedential opinion issued by the United States Court of Appeals for the Third Circuit in the case of Eberly v. LM General Ins. Co., No. 21-2995 (3d Cir. Aug. 1, 2024),  that court determined that the regular use exclusion does not violate Section 1738 of the Motor Vehicle Financial Responsibility Law. 

In Eberly, the Third Circuit rejected the insured’s argument that Gallagher controls whether the regular use exclusions violate Section 1738 by acting as de facto waivers of stacking.

However, the Third Circuit noted that the Supreme Court, in the case of Rush v. Erie Insurance Exchange, had expressly rejected the argument that Gallagher stands for the proposition that “insurance policy provisions that conflict with the specific requirements of the MVFRL will be declared invalid and unenforceable.

The Third Circuit decided that the regular use exclusion does not act as a de facto waiver of stacked coverage because, in this case, Plaintiffs could still access stacked coverage on their cars and on any cars they drove provided they do not fit within any applicable exclusions to such coverage. 

However, the Third Circuit also noted that the regular use exclusion only applies in the limited circumstance presented in the case before it, that is, where the injured party was operating a vehicle which he did not own but that was provided to him for his regular use and which was not covered under the policy at issue.

As such, the Third Circuit ruled that the regular use exclusion did not violate Section 1738 of the MVFRL under the facts at issue in this matter.

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