Friday, February 14, 2025
Superior Court Rules on Applicability of Jury Instruction On Recurrence of Medical Condition in Medical Malpractice Case
Of note in this matter, the court did rule that the Plaintiff was entitled to an increased risk of medical malpractice jury instruction on recurrence in a case where the Plaintiff had cancer, but had not yet suffered any recurrence.
The court noted that, under Pennsylvania law, where a Plaintiff already has a disease, its recurrence is not a separate injury that could support a later lawsuit, but rather, a matter of damages in the original lawsuit.
Anyone wishing to review a copy of this non-precedential decision may click this LINK. Judge McLaughlin's Concurring and Dissenting Opinion can be viewed HERE.
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.
Wednesday, February 12, 2025
Superior Court Affirms Entry of Nonsuit Where Trial Court Precluded Plaintiff's Liability Expert For Giving a 'More Likely Than Not' Expert Opinion
In this decision, the Pennsylvania Superior Court again confirmed that an expert opinion on causation to a reasonable degree of engineering certainty that the condition on the Defendant’s property “more likely than not” caused the Plaintiff’s injury was properly excluded by the trial court as not actually being an expert opinion to a reasonable degree of certainty.
The court noted that the Plaintiff’s expert’s opinion only stated that the Defendant’s improper maintenance was more likely than not the cause of the injury.
The Superior Court noted that, because the Plaintiff in this case had rested his case when it became clear that a fatal expert exclusion would cause a nonsuit, and where the Plaintiff did not thereafter present any evidence of damages, any error possibly committed by the trial court in terms of entering a nonsuit would have been harmless in any event.
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.
Tuesday, February 11, 2025
Superior Court Reviews Vicarious Liability of Domino's In MVA Case, And Whether Trial Court Decision on MSJ Remains Reviewable on Appeal After Entry of Verdict
Some litigators viewed the court’s analysis in this case as setting up a framework for establishing a franchiser’s vicarious liability in cases involving alleged negligence on the part of a franchisee.
In this decision, the Superior Court found that there was sufficient evidence in the records to show that the franchiser exercised sufficient control over the franchisee to support the finding of vicarious liability.
Also of note was the fact that the Superior Court ruled that a jury’s resolution of the factual issues presented in the case, which involve, in part, factual disputes regarding Domino’s control over the franchisee, such findings by the jury rendered the propriety of the trial court’s summary judgment ruling moot. More specifically, the Superior Court in this case ruled that “[a] trial court’s denial of a fact-dependent pre-trial [motion for summary judgment] is not reviewable when the issue was subsequently resolved at trial.”
In the end, the Superior Court’s ruling in this case rendered Domino’s Pizza again responsible, at least in part, for the $2.3 million dollar judgment awarded to the Plaintiff motorcyclist who was struck by a Domino’s Pizza delivery driver’s vehicle.
Anyone wishing to review a copy of this decision may click this LINK. The Dissenting Opinion by Judge King can be viewed HERE.
Source: “Pa. Superior Court Rules Pizza Chain Liable For Franchisee Driver’s Crash” by Aleza Furman of the Legal Intelligencer (Feb. 4, 2025).
Superior Court Confirms That Auto Carriers Can Charge a Premium For Stacked Coverage on a Single Vehicle Policy
The Pennsylvania Superior Court found that there was no unjust enrichment or fraud arising from the carrier charging a premium for stacked coverage benefits to a single-vehicle policy for an insured who lived in a household with no other auto policy as there were circumstances that could arise where the single-vehicle policy holder could obtain stacked coverage.
The court cited to other previous Pennsylvania decisions in which it had been held that a single-vehicle policy holder could benefit from stacking where the individual is injured in a vehicle other than his or her own insured vehicle and is an insured under the non-owned vehicle’s policy, which also has uninsured or underinsured motorist coverage, such as an employer’s vehicle. Other additional scenarios were noted in the Opinion under which a single-vehicle policy holder may secure a benefit from stacking of UM/UIM coverages.
Accordingly, the Superior Court affirmed the trial court’s ruling granting summary judgment in favor of the carrier.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).
Superior Court Reviews Duty of Uninsured Motorist Plaintiff To Report the Accident To the Police
In this case, the Pennsylvania Superior Court reviewed the rules surrounding the notice requirements following an uninsured motorist accident.
The Pennsylvania Superior Court cited to other cases that confirm that the notice requirement is to prevent fraud in this area of automobile insurance claims.
The Superior Court noted that the most recent precedent on this case from the Supreme Court held that whether prejudice is required must be addressed on a case-by-case basis. In this regard, the court noted that a carrier can show prejudice where an insured’s delay in reporting the accident results in an inability on the part of the carrier to thoroughly investigate the claims presented.
The Pummer court noted that there can be a distinction in hit and run cases between those cases where the driver causing the accident is never identified and where the hit and run driver is identified.
One the factors relied upon by the court in this case was the fact that the injured party was a passenger in an Uber vehicle and, as such, did not have any duty to obtain the identity of the tortfeasor driver. Moreover, the court in this case emphasized that the injured party did make numerous efforts to attempt to gather information on the identity of the tortfeasor driver through requests made to the Uber driver and that driver’s carrier.
As such, the Superior Court found that the trial court erred when it granted the UM carrier’s Motion for Summary Judgment on the basis that the Plaintiff failed to report the subject accident to the police. The appellate court overruled the trial court and denied the motion on the basis that there were issues of fact that precluded summary judgment.
Anyone wishing to review a copy of this non-precedential decision may click this LINK.
Monday, February 10, 2025
Plaintiff Found To Have Offered Sufficient Expert Testimony In Support of a Delayed Cancer Diagnosis
According to the Opinion, the Plaintiffs had claimed that a physician’s assistant affiliated with a Defendant incorrectly diagnosed the Plaintiff with a separate condition other than the cancer which was later found relative to the patient. The Plaintiffs alleged that the supervising physician signed off the on the physician’s assistant’s notes without properly reviewing them and also failed to refer the Plaintiff for further screening.
The Plaintiffs claimed that the Defendant’s negligence resulted in a 13-month delay in the Plaintiff receiving a cancer diagnosis, which thereby allegedly allowed the cancer to progress from a curable stage to an incurable one.
On appeal, the Pennsylvania Superior Court rejected a Defendant’s argument that the Plaintiffs’ oncology expert failed to show that the Plaintiff experienced a worse health outcome as a result of a delayed cancer diagnosis.
The trial court and the Superior Court both agreed that the Plaintiff’s expert offered sufficient proof of an increased risk of harm caused by the Defendant’s negligence so as to allow the issuance of causation to go to the jury.
Anyone wishing to review this non-precedential decision of the Superior Court may click this
LINK.
Source – Article: “Superior Court Rejects Pa. Hospital’s Challenge to $7.3M Med Mal Judgment,” by Aleeza Furman of The Legal Intelligencer (Jan. 6, 2025).
Court Rules That Seasoned Federal Middle District Attorneys Can Expect Hourly Rates of $375 Per Hour For Attorney's Fees Requests
In his decision, Chief Judge Brann reviewed a Plaintiff’s law firm’s request for $2.45 Million Dollars in attorney’s fees and allowed for such fees but cut down the amount requested to just over $250,000.00. In coming to amount of fees awarded, the court reduced the hourly rates pled and the hours logged.
After reviewing attorney's fees awards in the Federal Middle District Court of Pennsylvania for the past five (5) years, Chief Judge Matthew W. Brann determined in this matter that the district court regularly awarded attorney fee rates ranging from $100.00 to $375.00 depending upon skill, experience, the complexity of the case, and other factors.
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Chief Judge Matthew W. Brann M.D.Pa. |
In this case, finding that the Plaintiff’s lead attorneys, who have been practicing for twenty-eight (28) years and twenty-four (24) years respectively, the court awarded those attorneys hourly rates of $375.00 per hour. The lesser involved attorneys with lesser experience were awarded hourly rates of $300.00 per hour and $250.00 per hour. The court also reduced the paralegal hourly rates down to $150.00 per hour and $115.00 per hour, based upon the factors noted.
The court otherwise cut down purported travel time and other hours of work on post-trial motions. Chief Judge Brann noted that many of the post-trial motions were not complex and did not propose novel questions.
The court also agreed with the Defendant’s argument that, overall, the fees requested should be slashed by 5% because of the Plaintiffs’ attorneys’ use of quarter-hour and half-hour increments for billing.
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 Tanks Prevailing Pittsburgh Attorneys’ $2.45M Fee Request to $250K,” by Riley Brennan, The Legal Intelligencer (Jan. 29, 2025).
Friday, February 7, 2025
Court Quashes Subpoena For Records As Too Broad in Scope
In the case of The Cincinnati Ins. Co. v. K&K Fire Protection Enterprises, Inc., No. 6060-CV-2021 (C.P. Monroe. Co. Nov. 20, 2024 C. Daniel Higgins, Jr., J.), the court laid out the law pertinent to a Motion to Quash a Subpoena and related Motions for Protective Orders on records sought by subpoenas.
This case arose out of a fire loss. The Plaintiff claimed that inadequate maintenance by the Defendant was the cause of the fire.
The entity that was subpoenaed asserted that the records in question no longer existed.
The court denied that entity’s Motion to Quash the subpoena and for a Protective Order as to those records. The court noted that it expected an affidavit from that entity to confirm, under oath, that the records requested no longer existed.
The subpoena at issue also sought additional other records that the court found were not relevant to the claims against the Defendant. The court found that the subpoena requests for those other records were too broad in scope. As such, the court quashed the subpoena for those records after find that the subpoenas submitted to the entity that was requested to produce the records amounted to unreasonable annoyance embarrassment oppression, burden, or expense.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).
Thursday, February 6, 2025
Superior Court Affirms Trial Court's Finding that No Coverage Existed Related to a COVID-19 Shutdown of a Business
In a non-precedential decision issued by the Pennsylvania Superior Court in the case of The Scranton Club v. Tuscarora Wayne Mut. Group, No. 238 MDA 2021 (Pa. Super. Jan. 27, 2025 Panella, P.J., Olson, J., and Kunselman, J.) (Op. by Kunselman, J.), the Superior Court affirmed the trial court’s dismissal of all claims filed by The Scranton Club and found that no coverage existed to the COVID shut down of the Plaintiff’s business.
In this case, the Superior Court followed the precedent set forth in the recent Pennsylvania Supreme Court decision on similar issues in the case of Ungarean v. CNA & Valley Forge Ins. Co., 323 A.3d 593 (Pa. 2024).
The Superior Court in this case found that the trial court properly ruled that The Scranton Club did not allege any facts to establish that it incurred a “direct physical loss of or damage to property” as required to establish coverage under the policy. The court noted that, given that there was nothing that required restoration of The Scranton Club’s property as a result of the COVID shut down, there is no coverage to be provided under the insurance policy at issue.
The Superior Court noted that it also continued to affirm the trial court’s decision to dismiss the Plaintiff’s claims for civil authority coverage. The court noted that, to assert a claim for the civil authority coverage under the policy at issue, the civil authority action prohibiting access to the premises must have been in response to “damage” caused to another property. Given that there is no evidence of any damage to any neighboring properties which resulted in the Plaintiff’s property being shut down, the Superior Court held that the trial court was correct to deny coverage on this ground as well.
Lastly, the Superior Court noted that it was now affirming the trial court’s dismissal of the claim for bad faith given that coverage was not otherwise available under the policy at issue.
Anyone wishing to review a copy of this decision may click this LINK.
Vehicle Damages Photos From Accident Were Not Authenticated and, Therefore, Not Allowed
A primary issue in this case raised by the Plaintiff was whether the court erred in precluding photographs of the vehicle that were involved in the accident.
According to the Opinion, during cross-examination, both Plaintiffs confirmed that they could not recall or remember if the photographs of the vehicles presented to them fairly and accurately depicted the condition of the vehicles following the accident. Accordingly, the court found that, based upon the testimony of the Plaintiff, the Defendant was unable to authenticate the photographs.
During the direct examination of the Defendant, defense counsel again attempted to authenticate the photographs. However, when asked whether the photographs depicted the way to the Plaintiff’s vehicle following the accident, the Defendant testified, “Yes, I mean, there’s nothing different from what I’m seeing in these pictures compared to what I saw there on Cheltenham Avenue,” where the accident happened. The Defendant also testified that the photograph of the Plaintiffs’ vehicle “looks like the exact same vehicle that I was in the accident with that afternoon–evening.”
The trial court judge wrote in her Opinion that the Defendant failed to testify that the photographs fairly and accurately depicted the vehicles following the accident. Rather, the Defendant only testified that the vehicle in the photograph was the same vehicle he was in the accident with. The court noted that the Defendant was unable to confirm that the photographs fairly and accurately depicted the damage, or lack of damage, to the vehicles following the accident.
Based upon the testimony of all of the parties, the court found that the photographs were not properly authenticated and, as such, did not allow the Defendant to admit the photographs into evidence or to publish them to the jury.
In so ruling, the court cited to “Pa. R.E. 901(a), which pertains to authentication of evidence. The court additionally cited to the case of Com. v. Loughnane, 128 A.2d 806, 814 (Pa. 2015), for the proposition that a photograph “may be authenticated by testimony from a person who has sufficient knowledge that the photograph fairly and accurately reflects what the proponent is purporting the photograph to reflect.”
Also of note with regards to this decision, the court found that the Plaintiffs’ testimony regarding the accident, their injuries, and the residual impact of the injuries on the injured Plaintiff’s life, along with the Plaintiff’s expert testimony, provided the jury with sufficient testimony and evidence to make a determination as to whether or not the limited tort Plaintiffs’ injuries were “serious” such that the pierced the limited tort threshold.
Here, there is evidence that the Plaintiffs sustained soft tissue injuries to her cervical, thoracic, and lumbar spine regions along with disc protrusions and herniations in her neck and mid-back and low back. The court also noted that the Plaintiffs testified in detail as how the injuries impacted their everyday lives.
Accordingly, the trial court requested the appellate court to affirm the trial court’s denial of the Defendants’ Motion for Post-Trial Relief in this regard.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).
Wednesday, February 5, 2025
TIP FROM CUMMINS MEDIATION SERVICES
Trial Court Judge Creates a Remedy for a Bad Limited Tort Election Form
In this case, the Plaintiff argued that a Liberty Mutual Insurance standard Tort Election Form that Liberty Mutual had secured from the Plaintiff and which purported to indicate that the Plaintiff had knowingly elected the Limited Tort option, was defective. The Plaintiff argued that the form was defective in that it deviated, in several areas, from the language required by 75 Pa. C.S.A. §1705(a) for such tort election forms.
The trial court judge agreed with the Plaintiff and found not only that the tort election form was defective, but that its defective nature rendered the form invalid, which therefore rendered the Plaintiff a Full Tort Plaintiff.
The court rejected the defense argument that the statute at issue did not provide for any remedy for instances in which a tort election form is different from the language required by the statute.
As stated, the court in this case found that the discrepancies were sufficient in quantity and quality to allow the court to rule that the Plaintiff in this case should be deemed to be a Full Tort Plaintiff. The trial court stated that, here, the Plaintiff was not making a free and informed choice as to the tort election where the carrier’s form did not include alll of the required statutory language, most crucially when describing the parameters of the Limited Tort option to a customer purchasing automobile insurance.
The court stated that the statute at issue, 75 Pa. C.S.A. §1705(a)(3), is clear that, when no tort election is made the insured is presumed to have chosen the Full Tort option. Here, the court found that, given that the Plaintiff had signed a Limited Tort option form without being accurately informed as to the meaning of a limited tort election by way statutorily prescribed language, the Plaintiff effectively made no valid tort election under the statute.
The court rejected the defense argument that the deviations from the statutory language were de minimus.
As such, the court granted the Plaintiff’s Motion for Summary Judgment and provided the remedy not found in the statute that, where the language of the tort election form so substantially deviates from the statutorily required language for such forms, an insured customer of the insurance company should be deemed to be covered by the Full Tort option even though the Limited Tort Option was selected on the form.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney John H. Aitchison, of the law office of Steven L. Chung, in Philadelphia for bringing this case to my attention.
Court Finds Nursing Home Arbitration Agreement to be Unconscionable and, Therefore, Unenforceable
The court also denied Preliminary Objections filed by the Defendants against the punitive damages claims. The court noted that these punitive damages issues could be revisited during the Motion for Summary Judgment stage.
According to the Opinion, the Plaintiff filed claims for vicarious and direct corporate liability against nursing home Defendants in which the Plaintiff’s decedent resided. The Plaintiffs alleged that the decedent sustained injuries while staying at the Defendant’s premises from which the decedent eventually passed away.
A central issue in the case relative to the arguments addressed in this decision were whether the Plaintiff decedent had sufficient cognitive function and understanding to properly agree to the admission paperwork, which included an Arbitration Agreement.
It was additionally alleged that the nursing home did not have any written policies about what the Director of Admissions should do in order to prepare for initial meetings with incoming residents, in part, in terms of determining if a person is competent to sign an arbitration agreement.
Judge Lesa Gelb Luzerne County |
Judge Gelb provided a thorough review of Pennsylvania law regarding the validity and enforceability of arbitration agreements in this context. The court noted that, although Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements, the enforcement of such an agreement to arbitrate can be denied by a court where the party opposing arbitration proves a contract defense that invalidates the agreement to arbitrate. One such defense to an allegation that a valid arbitration agreement has been entered into is the defense of unconscionability.
The court noted that, to invalidate enforcement of a contract based upon unconscionability, the party challenging the contract must show both an absence of a meaningful choice, referred to as procedural unconscionability and contract terms that are unreasonably favorable to the other party, which is known as substantiative unconscionability. The court noted that these tests are assessed under a sliding-scale approach, with a lesser degree of substantiative unconscionability required where the procedural unconscionability is very high.
Applying the law to the facts of this case, the court found that the Arbitration Agreement at issue was unconscionable and, therefore, unenforceable. The court found that the Arbitration Agreement at issue was equally and procedurally substantively unconscionable.
The court noted that it found that the Plaintiff decedent did not have the legal capacity to sign the Arbitration Agreement based upon the medications that she was prescribed, the notes from the nursing staff as to the decedent’s cognition, and the other circumstances surrounding the agreement. The court also found the agreement itself to be substantively unconscionable because it imposed additional costs on the decedent and her representatives that they would not have in a court of law. The court also found that the Arbitration Agreement favored the nursing home in that it permitted the nursing home to pursue the decedent and/or her representatives for non-payment outside of arbitration.
Due to the above issues, the court held that the Arbitration Agreement was not binding.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton for bringing this case to my attention.
Tuesday, February 4, 2025
Superior Court Affirms Order Compelling Discovery of Notes of Interviews Where No Attorneys Were Involved in the Interviews
This case arose out of alleged hazing incidents that allegedly resulted in harm to the Plaintiff.
In its decision, the Pennsylvania Superior Court addressed whether handwritten witness interview notes were properly compelled to be produced by a Defendant sorority. According to the Opinion, the notes were factual summaries of statements made by the persons interviewed by representatives of the sorority.
The court reaffirmed the well-settled rule that a party asserting a privilege in support of a refusal to produce discovery bears the burden of establishing the validity of the assertion of that privilege.
Here, the court found that the interview notes were not created by or at the request of an attorney, but rather, were written by the Defendant fraternity’s officers. The court confirmed that the record lacked any evidence of an attorney’s role in the creation of the notes of the interviews.
Moreover, nothing established that the notes were prepared at counsel’s direction.
The court also noted that the attendance of non-legal officers of the fraternity at the interviews additionally precluded the privilege from applying.
The court also noted that the notes did not reflect any legal advice being provided. Nor were the persons interviewed, who were fraternity members, informing their attorneys of anything during the course of the interviews.
As such, the appellate court affirmed the trial court’s entry of an Order compelling the production of the notes of interviews in question.
Anyone wishing to review a copy of this decision may click this LINK.
Monday, February 3, 2025
Discovery Sanctions Awarded
The court found that the Defendants’ continued and willful refusal to supply timely and full responses to discovery, even after being ordered to do so, demonstrated disdain towards the court. The court found that appropriate sanctions were authorized by Pa. R.C.P. 4019(a).
The court reaffirmed the general law of Pennsylvania that the imposition of discovery sanctions is a matter that falls under the broad discretion of a trial court judge. Judge Higgins noted that the factors to be considered were (1) the prejudice endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the non-complying party’s willfulness or bad faith in failing to provide the requested discovery, (3) the importance of the excluded evidence in light of the failure to provide discovery, and (4) the number of discovery violations by the defending party.
Here, the court granted the Motion for Sanctions and ordered the Defendants to pay $750.00 in attorneys’ fees to the Plaintiffs’ attorneys. The Defendants were also ordered to provide full and complete Responses to the Request for Production of Documents at issue within thirty (30) days.
The court otherwise noted that, if the Defendants again fail to comply, the Plaintiffs were invited to apply for additional sanctions, including attorney’s fees and, possibly incarceration.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).
Trial Court Grants Discovery Sanctions After Med Mal Defendant Led Plaintiff on Wild Goose Chase
In this medical malpractice case, the Plaintiff filed a Motion for Sanctions relative to the Defendant hospital’s alleged spoliation of an audit trail for electronic medical records.
The court granted the motion in part by ordering the Defendant to pay the Plaintiffs’ attorney’s fees and costs in seeking the production of an audit trail after the Defendant only belated explained that the discovery requested was unnecessary because pertinent medical record updates were reflected on the records themselves.
The court otherwise denied the Plaintiff’s request for an entry of judgment in its favor given that the spoliation committed by the Defendant did not serve to prejudice the Plaintiffs’ ability to prove their case. This was because the details of any after-the-fact changes to the Plaintiff’s medical records were confirmed to be in the medical records themselves.
Nonetheless, the court found that the Plaintiffs were prejudiced by being led on a wild goose chase by the Defendant which had originally simply maintained that it had no responsive documents in its possession when the Plaintiff originally requested the medical record audit trail. At no time did the Defendant, early on, inform the parties or the court that an audit trail was not required because any changes would be noted on the face of the medical records themselves. This revelation was only made after the court invited the Plaintiffs to file a Motion for Sanctions.
The court noted that, whether the Defendant’s conduct was intentional or not, a timely disclosure would have saved the parties and the court from considerable needless effort.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).
Thursday, January 30, 2025
Summary Judgment Entered for UIM Carrier Where Plaintiff Did Not Fall Under Definition of a "Covered" Person
In the non-precedential decision in the case of Miller v. USAA General Ind. Co., No. 23-1934 (3d Cir. Jan. 2025 Chagares, C.J., Chung, J., and Fisher, J.) (Op. by Fisher, J.), the court affirmed summary judgment that had been granted by Judge Christopher C. Conner of the Federal Middle District Court in favor of the carrier in a UIM case.
According to the Opinion, a UIM Plaintiff sought coverage under a policy that was issued to the grandmother of the Claimant’s daughter. Both the Claimant and the daughter were living with the grandmother at the time of the accident.
The grandmother was the only named insured on the policy. The Claimant and the grandmother were not related by blood, marriage, or adoption.
The Claimant argued that her daughter was a named insured because she was listed as an “operator” on the declarations page for the applicable policy and that, therefore, the Claimant also qualified as an insured under that policy.
The Claimant additionally argued that the limitation of UIM coverage to the named insured and family members of the named insured, as defined by the policy, violated the Pennsylvania Motor Vehicle Financial Responsibility Law and the related stacking provisions. In this case, the Claimant invoked the case of Gallagher v. Geico and its precedent.
The Third Circuit Court of Appeals dismissed the Claimant’s arguments. The Third Circuit confirmed that the Claimant did not qualify as an insured under the policy and that, therefore, no UIM benefits were owed to the Claimant.
Moreover, the court found that, since the Claimant was not even an insured under the policy, no duty of good faith was owed to her by the carrier.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Christopher W. Woodward of the Camphill office of Marshall Dennehey for bringing this case to my attention.
Western District Federal Court of Pennsylvania Addresses Products Liability Claims In a Prescription Medical Device Litigation
In the case of Blair v. Abbvie, Inc., No. 2:23-CV-1871 (W.D. Pa. Jan. 9, 2025 Ranjan, J.), the court granted a Motion to Dismiss in a prescription medical device litigation.
In this decision, the Western Federal District Court confirmed that Pennsylvania’s across-the-board application of the Restatement §402A, comment k, as precluding strict liability design defect claims, but not strict liability manufacturing defect claims.
The court also ruled that, similarly, given that the elements of implied warranty claims are identical to strict liability claims, the Plaintiff’s implied warranty claims were dismissed.
The court also ruled in this case that the manufacturing defect claims asseted by the Plaintiff were inadequately pled because the claims did not reveal either any specific problem with the device or how the device allegedly failed. The court noted that the availability of a malfunction theory manufacturing defect claim does not exclude excuse failure to plead the circumstances of the alleged malfunction.
The court also ruled that the negligent design and warning claims were inadequately pled because the Plaintiff did not identify the design defect, anything about the manufacturing process, or what information should have been given to his medical providers.
Based on these issues, the trial court granted the Defendant’s Motion to Dismiss.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.
Wednesday, January 29, 2025
Plaintiff's Claims For Tortious Interference with a Dead Body Kept Alive
According to the Opinion, the Plaintiff pled that the Defendant’s conspired to move the decedent from his original gravesite without consent or notice. The Plaintiff also alleged that the disinterment permit had been improperly granted.
Reviewing the claims before it, the appellate court ruled that the Plaintiff had indeed stated a valid claim for tortious interference with a dead body under the elements noted in the Restatement §868.
However, the court found that the Plaintiff’s intentional infliction of emotional distress claim failed. The court noted that such a claim requires that a Plaintiff be present when the tort occurred.
However, the appellate court did allow the Plaintiff’s negligent infliction of emotional distress claim brought against the cemetery for breach of fiduciary duty to proceed given that that claim did not require a contemporaneous observation.
Relative to a civil conspiracy claim asserted by the Plaintiff, the court confirmed that a civil conspiracy claim is a derivative claim and that, given that some of the Plaintiff’s other substantive claims were reinstated, the civil conspiracy claim would likewise be allowed to proceed.
On the issue of the Plaintiff’s claim for punitive damages, the appellate court noted that such damages are permitted on a lesser standard of outrageousness in cases involving the mistreatment of corpses.
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.
Tuesday, January 28, 2025
Eastern Federal District Court Judge Issues Rule 11 Sanctions Against Plaintiff's Counsel
In the case of Shelton v. Chaudhry, No. 24-5657 (E.D. Pa. Jan. 27, 2025 McHugh, J.), Eastern Federal District Court Judge Gerald A. McHugh ripped a scathing Opinion meting out Rule 11 sanctions against a Plaintiff's counsel for repeated violations.
According to the decision, in this case arisining out of a motor vehicle accident, the Court faulted the Plaintiff's attorney for repeatedly filing a federal court Complaint rooted in diversity jurisdiction while, at the same time, pleading facts that established that such jurisdiction did not exist.
In his decision, Judge Hughes provides a thorough review of the current status of federal law in the context mandates imposed on attorneys under Rule 11 as well as when sanctions are warranted under that Rule.
In the end, the Court's sanctions imposed included a reprimand addressed to Plaintiff's counsel, the imposition of a $7,500 fine on the attorney, and the issuance of a directive that the attorney circulate the Court's Opinion to the other members of the Plaintiff's law firm at issue.
Anyone wishing to review this decision may click this LINK.
Monday, January 27, 2025
Superior Court Affirms Entry of Defense Verdict Even Though Defendant's Answer to Complaint Was Stricken Prior to Trial
In the case of Derbyshire v. Jefferson Frankford Hospital, No. 1409 EDA 2023 (Pa. Super. Dec. 20, 2024 Olson, J., Stabile, J. and Colins, J.) (Op. by Stabile, J.), the Superior Court found that a trial court judge did not commit any error in post-trial proceedings by denying a Plaintiff’s Motion for a New Trial limited to the issue of damages.
This matter arose out of a slip and fall event.
According to the Opinion, prior to the trial in the underlying matter, a motions court judge had stricken the Defendant’s Answer to the Complaint with prejudice due to untimeliness under Pa. R.C.P. 1029(b).
Later, another judge who presided over the trial, refused the Plaintiff’s request to direct the jury to find in the Plaintiff’s favor on the issues of negligence and causation and, instead, allowed these issues to go to the jury.
The jury then returned a verdict in favor of the Defendant on the issue of causation and awarded zero damages.
The Superior Court held that, while the Defendant’s failure to answer the Complaint resulted in a deemed admission of the facts alleged in the Plaintiff’s Complaint, at trial, the Plaintiff still had a burden to prove a legal causal connection between the Defendant’s alleged negligent conduct and the Plaintiff’s alleged damages. In its ruling, the Superior Court noted that, since the jury found the Defendant negligent, the Plaintiff suffered no prejudice from the trial court’s refusal to deem that issue admitted. The Superior Court therefore focused its attention on the issue of causation.
In ruling in the manner it did, the Superior Court found a 1984 decision from the Supreme Court of Texas to be persuasive. That court in Texas had concluded that a plaintiff who obtains a default judgment in a personal injury matter must still prove damages apart from the deemed admission of liability.
The Superior Court ruled that, based upon a review of the evidence in the record, it was within the jury’s prerogative to award zero damages.
Accordingly, the Superior Court ultimately ruled that the trial court did not err in denying the Plaintiff’s Post-Trial Motions seeking a new trial on damages.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).
GROSS NEGLIGENCE: Court Denies Summary Judgment in Premises Case Involving Slip and Fall on Vomit
In the case of Johnson v. Penney, No. 2:22-CV-03665-RBS (E.D. Pa. Jan. 8, 2025 Surrick, J.), the court denied a Motion for Summary Judgment filed by the Defendant, J.C. Penney relative to a slip and fall event in a case in which the Plaintiff alleged that he slipped and fell on a substance he believed to be vomit while he was shopping at the Defendant store.
According to the Opinion, just prior to the incident, the Plaintiff was walking through the children’s department of the store, primarily looking ahead while also noticing items on the surrounding display racks. He suddenly felt a slippery substance under his feet and slipped and fell.
The Plaintiff admitted that he did not see the slippery substance on the floor prior to his fall even though his view was unobstructed. The substance on the floor was described as being 1-2 feet in diameter and was a slightly brown color that was almost the same color as the floor.
The court also confirmed that the Defendant store conceded that it did not immediately clean up the substance once it was reported prior to the Plaintiff's fall. An employee of the store testified that she had informed a manager on duty multiple times that there was vomit on the floor prior to the Plaintiff’s fall. The store employee stated that she was advised by the manager that the priority at the time was addressing a leak in the ceiling.
In this matter, the Defendant argued that the Plaintiff’s claims failed because the substance on the aisle floor was an open and obvious danger that the Plaintiff should have seen and avoided. The Plaintiff argued that genuine issues of material fact existed as to whether or not the substance was open and obvious condition.
The court denied the Motion for Summary Judgment and found that, drawing all inferences in a light most favorable to the non-moving party as required by the applicable standard of review, reasonable jurors could disagree as to whether or not, under the circumstances presented, the substance on the floor constituted an open and obvious danger.
Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed HERE.
Source: Article – “JCPenney Customer’s Slip-And-Fall From Bodily Substance Suit Best Left For a Jury to Decide, Judge Rules” by Riley Brennan of The Legal Intelligencer (Jan. 10, 2025).
Snowboarder's Estate Denied Recovery Under Skiier's Responsibility Act
According to the Opinion, the Plaintiffs sued Shawnee Mountain Ski Resort with a paralysis suffered by the then 16 year old Plaintiff who struck a light pole while snowboarding. The Plaintiffs alleged that the pole was unguarded and improperly placed.
The court ruled that, even accepting the Plaintiffs’ version of the events, that is, that the course caused the minor Plaintiff’s loss of control and, ultimately, his collision with a off-trail obstacle, the court noted that this risk was inherent to the activity undertaken by the minor Plaintiff, which was snowboarding in a terrain park.
Friday, January 24, 2025
No Right To a New Trial Found After Trial Court Re-Opened Evidence After First Non-Jury Verdict And Then Entered Identical Second Non-Jury Verdict
In the non-precedential decision in the case of Graffia v. Thomas, No. 1497 WDA 2023 (Pa. Super. Dec. 30, 2024 Murray, J, McLaughlin, J., and King, J.) (Op. by King, J.), the court affirmed a trial court’s verdict in a non-jury case following the entry of a default judgment against the Defendant.
In this non-jury trial matter, the trial court issued a verdict prior to rendering a decision on whether the rebuttal testimony of the Plaintiff’s expert was admissible.
The trial court ultimately found that the rebuttal testimony was admissible. As such, the trial court vacated its original verdict in order to take all of the evidence into consideration.
The trial court then issued a second verdict that was identical to the first verdict.
The Plaintiff appealed and argued that the trial court did not have the authority to vacate the first verdict after forty-three (43) days. The Plaintiff requested a new trial.
The Superior Court found that the trial court committed harmless error. The court noted that, since all of the evidence was taken into consideration prior to the rendering of the second verdict, the Plaintiff failed to demonstrate any prejudice.
Anyone wishing to review a copy of this non-precedential decision may click this LINK.
I send thanks to Attorney Kasey E. Cahill of the Pittsburgh, PA office of Summers, McDonell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.
Wednesday, January 22, 2025
Court Finds No Duty Owed By Landowner Where Person Hit By Wayward Target Shooting Shot Coming From the Land
In the case of Folcomer v. Craft, No. 2018-SU-0025278 (C.P. York. Co. Jan. 8, 2025 Menges, J.), the court granted a Motion for Summary Judgment filed by certain Defendants in a tragic shooting accident matter.
According to the Opinion, one of the Defendants in this case lived on the moving Defendant’s property. On the day of the incident, certain Co-Defendants were target shooting on the property.
Nearby, the Plaintiff and the Plaintiff’s decedent left their home and began a drive.
A bullet from the shooting target area of the nearby home traveled through the target, into the nearby woods, ricochet off a roadway and struck the decedent who was a passenger in the Plaintiff’s vehicle.
The Defendants who filed the summary judgment motion in this case were the owners of the property on which the target shooting was taking place.
In this decision, the court ruled that no duty exists to control the acts of third parties unless a “special relationship exists with either the actor the victim."
In this decision, the court also addressed the Nanty-Glo rule and found that this rule did not bar summary judgment in this case as the testimony relied upon by the moving the Defendant was from adversarial Co-Defendants.
The court also referred to §318 of the Restatement (Second) of Torts and found that the moving Defendant landowners had no duty to control the conduct of the shooting Defendants as there was no evidence that the moving Defendants were aware of any continuous or dangerous use of the land that would have allowed them an opportunity to intervene. In this case, it appeared that the act of target shooting on the property was not an ordinary event.
In the end, the court granted the Motion for Summary Judgment filed by the moving Defendants who were the owners of the land in question.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.
Federal Court Addresses When Time Begins To Run To Determine if Removal To Federal Court Was Filed Too Late
According to the Opinion, the Plaintiffs filed this suit in the Court of Common Pleas of Philadelphia and alleged that the damages claimed were in excess of $50,000.00.
At some point in time after the statutory thirty (30) day removal clock had expired, the Plaintiffs made it known that they were actually seeking more than $350,000.00, that is, an amount more than enough to satisfy the $75,000 amount necessary to support diversity jurisdiction.
At that point in time, the Defendants filed a Notice of Removal to the federal court. The Plaintiff then moved to remand the case back to state court, saying that the removal was too late.
The court noted that the questions before it was whether the original Complaint filed in the state court put the Defendants on notice that the amount in controversy exceeded $75,000.00.
Judge Murphy noted that the answer to this question is straightforward under the Third Circuit Court of Appeals’ bright-line test. Under the appropriate standard of review, the court noted that, if an initial pleading does not give the Defendant notice of the right to remove the case to federal court, the Defendants shall file a Notice of Removal within thirty (30) days after receipt, by the Defendant, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has indeed become removable. In this regard, the court cited to the Third Circuit’s decision in McLaren v. UPS Store, Inc., 32 F.4th 232 (3d Cir. 2022).
This federal district court noted that the Defendants were not on notice that the amount in controversy exceeded $75,000.00 until the Plaintiffs made their $350,000.00 settlement demand. As such, the court found that the Defendant’s removal was timely. Accordingly, the Plaintiff’s Motion to Remand was denied.
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 (Jan. 2025).
Monday, January 20, 2025
Many Volunteer Jurors Needed For First Round Of Mock Trial Competition in Scranton on February 4, 2025
HOPING YOU CAN PLEASE CONSIDER DONATING YOUR TIME AND EXPERTISE AS A MOCK TRIAL JUROR FOR THIS YEAR'S COMPETITION IN SCRANTON, PA.
Federal Court Judge Wolson Allows Plaintiff to Secure Claims Evaluation Documentation From UIM Carrier in Discovery
In the case of Long v. Progressive Adv. Ins. Co., No. 2:24-CV-01735-JDW (E.D. Pa. Dec. 11, 2024 Wolson, J.), the court addressed a Motion to Compel filed by a Plaintiff against a UIM carrier.
According to the Opinion, the Plaintiff was involved in a motor vehicle accident and brought a UIM claim against Progressive.
During the course of the matter, Plaintiff’s counsel sent a demand package to Progressive requesting the tendering of the limits. The court noted that the Defendant had not yet evaluated the Plaintiff’s claim but did so thereafter.
It was noted that, when Progressive produced a claim evaluation documentation in discovery, the carrier had redacted information from the document, including the value it had placed on the Plaintiff’s claim as well as with respect to the analysis with the specific elements of the Plaintiff’s claim. Progressive redacted the documents on work product grounds.
The Plaintiff filed a Motion to Compel the Defendant carrier to produce an unredacted document.
The court granted the Plaintiff’s Motion after finding that the Defendant carrier had failed to meet its burden of showing that it had created the information, which had been redacted, in anticipation of litigation.
The court noted that the UIM carrier had a duty to investigate and evaluate the Plaintiff’s UIM claim and, based on the court's review of the record before it, the carrier had not yet investigated and evaluated the claims presented by the time it created the claim evaluation document.
Although the court acknowledged that the demand letter from Plaintiff’s counsel could have prompted the Defendant to conduct the evaluation or to complete it quicker, the court found that the Defendant had a separate, business-related (i.e, not litigation-related) obligation to perform the evaluation.
Judge Wolson additionally noted that the demand letter did not demand any more than what Progressive had offered or more than the policy limits. The demand letter also did not threaten a bad faith claim. Accordingly, the court found that there were no circumstances to suggest that the evaluation by the carrier was prepared in anticipation of litigation.
Judge Wolson noted held that there was no per se rule that every document created by an insurance company after receiving a demand letter from an insured qualified as a document protected by the work product doctrine. The court ruled in this fashion after finding that a demand letter did not absolve an insurance company of its obligation to evaluate a claim.
Accordingly, the court rejected the carrier’s assertion of the work product privilege over a claim evaluation document where the carrier had a legal obligation to evaluate an insured’s claim and had not yet evaluated the claim when the insured sent a demand letter.
Accordingly, the court granted the Plaintiff’s Motion to Compel discovery.
It is noted that the court began its Opinion by indicating “[i]insurance companies evaluate claims as part of their business, and their claims evaluations often result in demands from policyholders and then litigation. In discovery, that reality poses a challenge: “litigants (and then judges) must decide when an insurance company created a claim evaluation document in the course of its business and when it did so in anticipation of litigation. The first category of documents is discoverable, but the latter is work product that Federal Rule of Civil Procedure 26(b) protects.”
Judge Wolson noted that the work product doctrine, which is codified under Federal Rule of Civil Procedure 26(b)(3) protects materials prepared in anticipation of litigation from discovery unless certain exceptions apply. The court noted that the work product immunity shelters an attorney’s mental processes, providing a privileged area for the attorney to analyze and prepare his client’s case.
The court also noted that a party claiming work product protection bears the burden of showing that the materials in question were prepared in the course of preparation for possible litigation.
The court reiterated that, because insurance companies evaluate claims made by their insureds in the ordinary course of their business, and outside of any possible litigation in the future, discovery disputes involving insurance company claims file often present problems for the parties in the court.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 9, 2025).