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Statutory Employer Test Applied in the Context of the Provision of Professional Services

In the case of Smith v. Supportive Concepts for Families, Inc., No. 21-2038 (C.P. Berks Co. Jan. 25, 2025 Nevius, J.), the court addressed a Motion for Summary Judgment filed by a provider of outpatient psychiatric services in a case in which the Plaintiff alleged that she was assaulted by a patient during a psychiatric medical examination.

The Plaintiff was attacked when she visited a group home owned and operated by the Defendant. The Plaintiffs allege that the Defendant knew of the assailant’s violent pre-disposition but failed to adequate safeguard against harm.

In significant part, the Defendant relied upon the statutory employer defense in its Motion for Summary Judgment. The court noted that there was no dispute that, at the time of the incident, the Plaintiff was an employee of the separate entity that sent her to this facility to complete the medical examination. 

Nevertheless, the Defendant in this case was asserting immunity as a statutory employer of the Plaintiff pursuant to the five (5) part test set forth in the case of McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (Pa. 1930).

The court in this Smith case noted that the McDonald factors are under current review in the Pennsylvania Supreme Court. The court refused to speculate on whether or not the statutory employee test would survive that Supreme Court review. The court instead applied the McDonald factors to arrive at its decision to deny the Defendant’s Motion for Summary Judgment.

Notably, this court noted that the Defendant did not provide any authority for the application of the McDonald factors in the context of the provision of professional services. The court noted that the McDonald test is typically used in connection with construction cases.

The court in this Smith case also noted that, in any event, the Defendant had not offered sufficient evidence to establish that it met all of the factors of the statutory employer test.

As such, the Motion for Summary Judgment was denied.

The court additionally denied the defense arguments set forth under the assumption of the risk doctrine and relative to the alleged exculpatory release involved in the case.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 23, 2025).

Philadelphia Trial Court Rules in Favor of Transfer of Med Mal Case to New Jersey Under Doctrine of Forum Non Conveniens

In the case of Duxbury v. Reconstructive Orthopedic Assoc., June Term, 2023 No. 1031 (C.P. Phila. Co. Feb. 10, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in support of its decision to transfer this medical malpractice case under the doctrine of forum non conveniens.

The Plaintiffs sued the medical Defendants for professional liability arising out of alleged negligence in the treatment of the Plaintiff’s complaints of back pain.

The trial court noted that it had ruled in this fashion where weighted reasons supported the dismissal of this Philadelphia County case and the re-filing of the action in New Jersey, which was where the Plaintiff received medical treatment and where the Plaintiff’s medical providers, medical records, and most potential witnesses were located.

While certain Defendants had their principal place of business and corporate headquarters in Philadelphia, and while one of the Defendant physicians was licensed to practice in Pennsylvania and had certain other connections to the state of Pennsylvania, the court found that other factors weighed more heavily in the decision to dismiss the matter and ordered that the case to be refiled in New Jersey.

The trial court noted that it had granted the Defendant’s motion and directed that the action refiled in New Jersey.

In this Rule 1925 Opinion, the trial court requested the appellate court to affirm the trial court Order dismissing the matter under the doctrine forum non conveniens.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Philadelphia County Court of Common Pleas Transfers Case to Centre County as Proper Venue

In the case of Pickering v. Associated Realty Prop. Mgt., Inc., Oct. Term 2023, No. 0613 (C.P. Phila. Co. Nov. 22, 2024 Bright, J.), the court issued a Rule 1925 Opinion in support of its granting of a Motion to Transfer of Venue be upheld in this wrongful death action involving a case in which the appellant’s decedent fell down a defective trash shoot in a building owned and/or operated by several of the Defendants.

In this matter, the trial court sustained the Defendants’ Preliminary Objections to venue in Philadelphia County and transferred the case to Centre County where the accident occurred.

The court noted that there was no evidence to establish that any of the Defendants regularly conducted business in Philadelphia County for purposes of venue. 

More specifically, the court noted that one of the Defendants had only made eight (8) sales in Philadelphia County over a seven (7) year period. That Defendant had approximately $73,000.00 of total sales in Philadelphia County over the $45 million dollars that the company had made over the seven (7) year period.

As such, the court found the record confirmed that none of the Defendants’ contacts with Philadelphia were regular or habitual enough to make Philadelphia proper venue for this cause of action. As such, the trial court requested the Superior Court to affirm its decision to transfer venue to Centre County where the Plaintiff’s cause of action arose.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 2, 2025).

Superior Court Addresses the Quality-Quantity Test for Proper Venue Over a Corporation in a Given County

In the case of Mendoza-Colon v. Luscomb, Inc., No. 65 MDA 2024 (Pa. Super. April 10, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Olson, J.), the Superior Court ruled that the trial court had erroneously granted a transfer of venue motion rather than first ordering venue-related discovery where the evidence indicated that the Defendants offered business services to the county where the case was initially filed.

According to the Opinion, the Plaintiff was a resident of Lancaster County who sued Defendants who had a principal place of business in Lycoming County. The Plaintiff also asserted that one of the Defendants also conducted business in Luzerne County.

According to the Opinion, the Plaintiff alleged that she was tasked by her employer with driving her delivery truck to one of the Defendants’ locations in Lycoming County. After the Plaintiff arrived and her truck was loaded, one of the improperly stacked boxes fell on the Plaintiff’s hand, causing injuries.

Although the defendant was primarily located in Lycoming County and although the accident happened in Lycoming County, the Plaintiff filed suit in Luzerne County. The Defendants filed Preliminary Objections to venue and requested that the case be transferred from Luzerne County to Lycoming County.

In support of their Preliminary Objections, the Defendants argued that venue was improper in Luzerne County and that the only proper venue was Lycoming County, the location of Gary’s Furniture only place of business. The Defendants noted that no party was a resident of Luzerne County and it was additionally asserted that Gary’s Furniture had never conducted business in Luzerne County.

In response, the Plaintiff asserted that Gary’s Furniture offered free delivery within fifty (50) miles of its retail store, and noted that parts of Luzerne County were within that fifty (50) mile radius.

The trial court ordered a transfer of the venue from Luzerne County to Lycoming County.   

The Pennsylvania Superior Court vacated the trial court’s transfer of venue order and remanded the case for further proceedings. 

The appellate court reviewed the law of venue under Pa.R.C.P. 2179 applicable to corporations.  The Superior Court noted that the determination of whether a corporation  "regularly conducts business" in a particular county depends on the "quality" and "quantity" of the business conducted in a given county.

The Superior Court held that offering free delivery to residents to Luzerne County constituted a furtherance of the Defendants’ business activities that satisfied the “quality” prong of the “regularly conducts business” test.

The Superior Court also held that this evidence was sufficient to warrant the granting of the Plaintiff’s request for venue-related discovery to ascertain the extent or “quantity” of the Defendants’ business activities in Luzerne County. As such, the case was remanded.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (April 28, 2025).

Court Upholds Assault and Battery Exclusion in Liability Policy Related To Shooting Incident

In the case of The Farmers Fire Ins. Co. v. S.W. Krauss, LLC, No. 2023-CV-5087 (C.P. Lacka. Co. May 12, 2025 Gibbons, J.), the court granted a liability carrier’s Motion for Judgment on the Pleadings based upon an assault battery exclusion contained in the subject policy relative to a shooting incident that occurred on the insured’s premises.

According to the Opinion, this matter involved an injured party who suffered a gunshot wound after gunfire was exchanged between unidentified individuals who were engaged in an dispute.

President Judge James A. Gibbons
Lackawanna County

The carrier for the landowner filed a declaratory judgment action and asserted that coverage was barred under the assault and battery exclusion contained in the policy. After reviewing the policy as compared to the facts alleged in the underlying civil litigation Complaint, the trial court here agreed and granted the carrier’s Motion for Judgment on the Pleadings.

The trial court also rejected the injured party’s efforts to create issues of fact based upon affirmative defenses raised in the injured party’s New Matter responses to the declaratory judgment Complaint. In this regard, the trial court noted that there were boilerplate allegations in the New Matter pleadings and no factual allegations in support of the same.

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

New Trial Ordered Based on Application of Open and Obvious Doctrine in Premises Liability Case

In the case of Janik v. Zoological Society of Philadelphia, No. 1590 EDA 2024 (Pa. Super. April 22, 2025 Panella, P.J.E., Lane, J., and Stevens, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court ruled that the trial court correctly granted a new trial after recognizing its error in failing to instruct the jury on the open and obvious doctrine where the trial evidence created a genuine issue of material fact as to whether a reasonable person would have recognized an architectural feature as a potential hazard.

According to the Opinion, the Plaintiff was walking in the Philadelphia Zoo’s Big Cat Falls exhibit when his left foot struck the bottom of a decorative boulder, which allegedly caused him to fall and sustain injuries.

The Plaintiff filed suit alleging that the Zoo was negligent in placing the decorative boulder adjacent to the walkway because it created a dangerous or defective condition.

The Defendant’s pre-trial Motion for Summary Judgment asserting that the boulder was an open and obvious condition was denied. At trial, the trial court denied the Zoo’s Motion for a nonsuit on the same grounds. The jury then returned a verdict in favor of the Plaintiff.

On appeal, the Zoo asserted that the trial court erred in denying the Motion for Summary Judgment and denying the Motion for a Nonsuit, and in excluding jury instructions on the open and obvious doctrine. Other issues were also raised in the post-trial motions.

In its post-trial Opinion, the trial court felt that a new trial should be granted given its own errors, in part, in failing to admit certain evidence and in failing to instruct the jury on the open and obvious doctrine.

Relative to the issue of the open and obvious doctrine, the Superior Court agreed that there were issues of fact presented at trial that should have compelled the trial court to instruct the jury on that doctrine.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (May 6, 2025).

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Certain Insurance Information Rule Inadmissible in a Post-Koken Auto Accident Lawsuit

In the case of Gilmore v. Erie Insurance Company, No. CV-2023-1140 (C.P. Wash. Co. April 23, 2025 Neuman, J.), in an Order without Opinion, the court granted a Defendant’s Motion In Limine filed in a post-Koken matter and thereby precluded the Plaintiff from introducing into evidence, any evidence or testimony regarding the amount of the tortfeasor’s liability limits, the amount of the premiums that the Plaintiff paid to his own UIM carrier, or that the Plaintiff’s UIM limits amounted to $300,000.00.

The rationale of the court was that the admission of such evidence would be overly prejudicial to the Defendant UIM carrier.

Again, there is no Opinion issued. This decision was by way of Order only.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

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

Superior Court Overturns Trial Court's Allowance of Amendment of Complaint During Trial To Add Claim of Punitive Damages

In the case of Bernavage v. Green Ridge Healthcare Group, LLC, No. 1576 MDA 2023 (Pa. Super. May 19, 2025 Bowes, J., Olson, J., and Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court affirmed the entry of a compensatory damages award by a jury after a medical malpractice trial but vacated the jury's award of punitive damages after finding that the trial court erred by allowing the Plaintiff to amend the Complaint during the trial to add the claim for punitive damages.

According to the Opinion, the underlying case involved two (2) trials, one under compensatory damages aspect of the case and a second, later trial limited to consideration of whether punitive damages should be awarded against the Defendants.

It was noted that, during the course of the first trial, the Plaintiffs moved for a directed verdict on the issues of negligence and recklessness. At that time, the Plaintiff also made a request to file an Amended Complaint to conform the evidence elicited at trial to the pleadings. The request for a directed verdict was denied but the Plaintiff was allowed to file an Amended Complaint to add allegations of recklessness and to include a claim for punitive damages. The court also severed the issues related to the punitive damages claim to be resolved at a second, later trial with a different jury.

After the jury in the first trial entered an award in favor of the Plaintiff, the pleadings were reopened by the trial court and the parties proceeded to conduct punitive damages discovery prior to the second trial.

There was then a second trial at which the jury entered an award of punitive damages.

Following the punitive damages trial, the Defendants filed various post-trial motions and, eventually, this appeal. A central issue on appeal was whether the trial court abused its discretion in allowing, in the middle of a trial and after the expiration of the applicable statute of limitations, the Plaintiff to amend the Complaint to add allegations of recklessness and the claim for punitive damages.

The Superior Court ruled that the amendment of the Complaint to allow for claims of recklessness was not barred by the applicable statute of limitations. The main rationale for the appellate court’s decision in this regard was that recklessness and gross negligence are not to be considered distinct causes of action separate and apart from claims of ordinary negligence.

However, the appellate court did find that the trial court’s decision, during the course of trial, to allow the Plaintiff to add a claim for punitive damages was improper as that resulted in an unfair surprise to the Defendants at that late hour of the case.

The appellate court noted that the record revealed that the Plaintiffs did not pursue a claim of recklessness during the course of discovery and only introduced the concept of recklessness for the first time during the course of the trial.

The Superior Court noted that the Plaintiff’s failure to develop the specific theory of recovery in the form of recklessness during the course of discovery was not, in this case, a mere technicality subject to being cured by an amendment of the Complaint to conform to the evidence at any point.  Rather, the Superior Court noted that the record in this case revealed that the Plaintiff had developed a theory of liability at trial that was substantively different from the theory developed by the Plaintiff during the course of discovery and as alleged in the original Complaint.

The Superior Court additionally noted that the Plaintiff had solicited the word “reckless” from witnesses during the course of a trial, which witnesses, in the eyes of the Superior Court, could not be expected to understand the legal significance of that term. The Superior Court noted that the witnesses’ use of the word “reckless” in their testimony was of no legal significance until the trial court subsequently permitted the Plaintiff’s Amended Complaint in which recklessness was then alleged for the first time.

Accordingly, the appellate court found that this matter did not involve simply an amendment of the pleadings in order to conform the Complaint to the evidence produced at trial. Rather, the Superior Court viewed this matter as involving an introduction of a new theory of recovery at a late date in the proceedings, which action was of the type that is frowned upon by the courts and which often results in a violation of the statute of limitations.

While the court found that the statute of limitations did not serve to bar the addition of a claim of recklessness under this set of facts and given that recklessness is only considered a state of mind in regards to a negligence claim, the Superior Court found that the unfair surprise to the opposing party from the late amendment served as grounds that should have compelled the trial court to deny permission to amend the Complaint. 

The Superior Court concluded that unfair surprise existed in this case “where a negligence Plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” 

The court noted that, if, as the Plaintiff asserted, the facts of the Plaintiff’s original Complaint were sufficient to support a recklessness theory of recovery, then the Plaintiff should have developed that theory during the course of discovery. The Superior Court noted that, while it ascribed no motive to the Plaintiff in this case, it felt that, to reach a different conclusion, would be to invite negligence plaintiffs to withhold their theory of recovery, whether it is a negligence, gross negligence, or recklessness claim, until the last possible minute for the specific purpose of creating an unfair surprise to the opposing party. 

For these reasons, the Superior Court concluded that the trial court abused its discretion in permitting the Plaintiff to amend their Complaint during the course of trial to add a claim for punitive damages.

As such, the Superior Court affirmed the jury’s verdict relative to the award of compensatory damages but vacated the second jury’s award of punitive damages. The case was remanded for further proceedings.

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


I send thanks to Attorney Joseph T. (“Jody”) Healey of the Scranton, PA law firm of Cipriani &Werner for bringing this case to my attention.

Federal Court Applies Choice of Law Analysis

In the case of Karabec-Studer v. Avis Rent A Car System, LLC, No. 23-CV3828 (E.D. Pa. March 28, 2025 Kenney, J.), the Eastern District Federal Court completed a choice-of-law analysis in deciding a Defendant’s Motion for Summary Judgment on the Plaintiff’s claims for punitive damages under claims that the Defendant negligently rented a vehicle with issues.

According to the Opinion, the Plaintiff rented a car from Avis and was involved in a motor vehicle accident while traveling through Pennsylvania. The Plaintiff more specifically alleged that the Defendant negligently and recklessly rented them a car with inadequate tire tread. The Plaintiff rented the car in the state of Virginia. 

The Defendant moved for partial summary judgment on the punitive damages issues.

After reviewing the choice-of-law factors, the court concluded that Virginia’s punitive damages law, including that state's cap on damages would apply.

The court otherwise denied the Motion for Partial Summary Judgement after finding that there were genuine issues of material fact as to whether or not the Defendants recklessly disregard the probability that their conduct would result in injury to the Plaintiffs. The court noted that the record indicated that the tire treads were below the Defendant’s standards as well as the legal limits regarding 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 (April 24, 2025).

Trial Court Reaffirms that Plaintiffs May Plead Recklessness With Reckless Abandon

In the case of Kafley v. Breneiser, No. 24-CV-3508 (C.P. Lacka. Co. April 24, 2025 Gibbons, J.), the court overruled Preliminary Objections filed by the Defendant to claims of recklessness asserted in a rear-end motor vehicle accident case. 

President Judge James A. Gibbons
Lackawanna County

In this decision, President Judge James A. Gibbons of the Lackawanna County Court of Common Pleas confirmed the current status of the law that allows Plaintiffs to plead recklessness in any given case so long as allegations of negligence are likewise asserted. 

In this regard, the court relied upon the Pennsylvania Superior Court decision of Monroe v. CBH2O, LP, 286 A.3d 785, 799 (Pa. Super. 2022).

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

Discovery Sanctions Entered Against Defendant Who Was Not Cooperating With Discovery Requirements

In the case of Jones v. STR8 FROM US, LLC, No. 2:24-CV-05370-GJP (E.D. Pa. April 23, 2025 Pappert, J.), the court entered a sanctions Order against the defense in a motor vehicle accident matter where the Defendant driver refused to speak with his defense counsel that were hired by the Defendant’s insurance carrier, refused to respond to the discovery requests and deadlines, and refused the efforts to complete his deposition.

After discovery Orders were entered, the Plaintiffs moved for sanctions pursuant to F.R.C. 37(b) related to the Defendant’s continued failure to obey the court’s discovery Orders.

In assessing the justification of any discovery sanctions, the court applied what is known as the Poulis factors, which are a series of six (6) separate factors that a trial court should review and apply before granting an award for sanctions. In this regard, the court cited the case of Poulis v. State Farm, 647 F.2d 863, 868 (3d Cir. 1984).

Judge Pappert noted that Rule 37 authorizes courts to sanction conduct that obstructs the completion of discovery. After reviewing the matter before him, Judge Pappert granted sanctions and precluded the Defendant from testifying at trial or offering evidence concerning how the car accident involving the Plaintiff occurred and/or who was at fault. 

The court also noted that, after reviewing the Poulis factors, it was also appropriate to strike all of the Defendant’s affirmative defenses that did not pertain to the issues of causation or damages.

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 Hobbles Trial Defense After Client Refuses To Cooperate With His Lawyers” By Riley Brennan of The Legal Intelligencer (April 24, 2025).

Quoted in National Article Analyzing Recent Pennsylvania Supreme Court Decision on a Medical Malpractice Decision of Note

Was recently quoted in an nationally circulated article entitled "Pa. Mental Health Rejection Suits Could Rise, Atty Says" by Y. Peter Kang that appeared in the national online publication of Law360.

The article reviewed a recent Pennsylvania Supreme Court decision in the case of Matos v. Geisinger Medical Center in which that Court addressed the extent to which an injured party may pursue a medical malpractice claim against medical providers who rebuffed an individual who wished to voluntarily submit themselves for mental health treatment who then thereafter end up injuring another person or themselves.

The article is not freely accessible online. To the extent you may wish to read a portion of the article please do not hesitate to contact me at dancummins@cumminslaw.net.

The Tort Talk write up of this decision is forthcoming.

Eastern District Federal Court Transfers Personal Injury Case to Western District Federal Court

In the case of Seidman v. Hamilton Beach Brands, Inc., No. 2:24-CV-06033 (E.D. Pa. March 21, 2025 Weilheimer, J.), the Eastern District Federal Court granted a Defendant’s Motion to Transfer a products liability case filed by a Pittsburgh Plaintiff who treated for his injuries in Pittsburgh to the Western District Federal Court.

In this case, the Plaintiffs initially filed the lawsuit in state court venue that was within the Eastern District Federal Court venue. The Defendants removed the case to federal court. The court initially noted that the Eastern District Federal Court had venue and jurisdiction to review the Motion to Transfer given that the case had been properly removed to its attention.

Moving on to the merits of the Motion to Transfer, the court noted that, when a Plaintiff chooses to file a lawsuit outside of their home forum, the Plaintiff’s choice will receive less difference. The court noted that the facts of the matter had nothing to do with the Eastern District Federal Court. The court also noted that the convenience of counsel is not irrelevant factor in addressing whether or not to grant a Motion to Transfer.

The court also noted that jury duty should not be imposed upon the people of a community who have no relationship to the litigation.

For all of these reasons, the Eastern District Court granted the Motion to Transfer this matter to the Western District Court.

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

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ARTICLE: Use of Exhibits in Opening Statements: Win Your Case Before Any Witness Even Takes the Stand

 

Here is a LINK to an article of mine that appeared in the May/June 2025 edition of The Pennsylvania Lawyer Magazine published by the Pennsylvania Bar Association.  

The article is entitled "Use of Exhibits in Opening Statements is Allowed" and analzyes the recent decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Webb v. Scranton Quincy Hosp. Co., LLC.  

In his Opinion in the Webb case, Judge Nealon laid out, for the first time, the law that supports the use of exhibits during Opening Statements in personal injury matters.  

Gone are now the days where lawyers could only utilize exhibits during Opening Statements if the opposing counsel has no objection to the same.  Now there is law that can support a desire to utilize exhibits during an Opening even if the opposing counsel objects.

I send thanks to Patricia Graybill, editor of The Pennsylvania Lawyer Magazine for agreeing to publish this article.

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Court Confirms that Wrongful Death Claims are Derivative to Underlying Liability Claims

 In the case of Byers v. Finishing Systems, Inc., No. 1:20-CV-02110 (M.D. Pa. March 31, 2025 Wilson, J.), the court granted summary judgment in a wrongful death case arising out of a products liability claim.

According to this Opinion, the Court had previously granted summary judgment to the Defendants on certain claims but did not grant summary judgment on the Plaintiff's Wrongful Death claims because the Defendant had not ask for it in the motion.

In this decision, the Court treated the more recent filings presented by the defense as adding a request for summary judgment on the Plaintiff's Wrongful Death claims.

The court noted that, where all substantive negligence claims had been dismissed in a given matter, the Plaintiff’s wrongful death claim also necessarily failed as matter of law.  The court affirmed that wrongful death claims are derivative of other substantive causes of action.  

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.  

Plaintiff Waived Issues At Trial that Were Raised in an Undecided Pre-Trial Motion in Limine

In its decision marked Non-Precedential in the case of Wingate v. McGrath, No. 2879 EDA 2023 (Pa. Super. April 10, 2025 Panella, P.J.E., Stabile, J., and Nichols, J.) (Op. by Panella, P.J.E.), the Superior Court reviewed various post-trial issues and confirmed that a pre-trial Motion In Limine filed by the Plaintiff that was not decided prior to trial and which was not revisited until after trial was waived.

According to the Opinion, the Plaintiff filed a Motion In Limine to exclude the Defendant’s causation expert. However, the trial court did not resolve that motion prior to trial.

The record confirmed that, during trial, the Plaintiff did not re-raise the issues from the pre-trial motion in limine until after testimony was heard and the jury had retired to deliberate.

When the issue was raised again at that point, the trial court held that the issues regarding the Defendant’s expert had been waived. However, after a defense verdict was handed down by the jury, the trial court granted the Plaintiff a new trial.

On appeal, the Superior Court rejected the Plaintiff’s argument that the Defendant had failed to properly preserve his argument that the Plaintiff had waived the issues regarding the defense expert.

The Pennsylvania Superior Court ruled that issues raised in an undecided pre-trial motion in limine must be re-raised at trial in order to be preserved. Here, the Plaintiff did not raise the issues again until after the relevant testimony was already in evidence. As such, the Superior Court held that the admissibility of the Defendant’s expert issue had been waived by the Plaintiff.

Accordingly, the Superior Court ruled that the trial court had erred by granting the Plaintiff a new trial on this issue after a defense verdict had been entered.

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.

TORT TALK TURNS 16 ON SUNDAY

 

Happy Birthday Tort Talk!

Tort Talk was started 16 years ago on May 4, 2009.

With nearly 2,000 email subscribers, over 4,300 blog posts, and over 6.4 million views to date, Tort Talk is still going strong.

Thank you for your tips on notable cases and for your readership.

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Motion to Bifurcate Medical Malpractice Case Denied

In the case of Wolking v. Lindner, No. 3:23-CV-806 (M.D. Pa. April 14, 2025 Saporito, J.), the court denied a Motion to Bifurcate in a medical malpractice case.

In addressing the Motion to Bifurcate, Judge Joseph F. Saporito, Jr. of the Federal Middle District Court of Pennsylvania turned to F.R.C.P. 42(b), which allows a court to order a separate trial of one or more issues presented for convenience, to avoid prejudice, to expedite the case, or to further the interests of judicial economy.

The court in Wolking noted that four factors are to be considered: (1) whether the issues are significantly different from one another, (2) whether the issues require different witnesses, documents, and evidence, (3) whether the nonmoving party would be prejudiced by bifurcation, and (4) whether the moving party would be prejudiced if the request for bifurcation is denied.

Judge Joseph F. Saporito, Jr.
M.D. Pa.

Judge Saporito noted that bifurcation of trial is a matter of judicial discretion and should be viewed as the exception rather than the rule.

The court noted that a request for bifurcation solely on the basis of judicial economy alone is not sufficient to support an entry of an Order in favor of bifurcation.

Here, the court found that the contested issues of liability and damages were not significantly different, but rather were inherently intertwined. The contested issues in this case both depended upon the harm caused by the prescribed medication, which involved the same types of evidence to be presented to the jury on both the liability and damages issues presented.

As such, the court denied the Motion to Bifurcate the issues of liability and damages.

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


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

Source of image: Photo from Times Leader story.

BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION

 BRING YOUR CASE TO A CLOSE

DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net

Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

Who better to get an insurance company to increase their award

than the writer of Tort Talk and

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TRAVELERS INSURANCE IN-HOUSE COUNSEL

Superior Court Affirms Dismissal of Case Due to Service of Process Issues

In the case of Green v. Farole, No. 1483 EDA 2024 (Pa. Super. April 14, 2025 Stabile, J., Bowes, J., and Kunselman, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court issued its latest pronouncement on the law regarding proper service of process as set forth in Lamp v. Heyman and its progeny. In this case, the Superior Court affirmed the trial court’s sustaining of Preliminary Objections and dismissal of the Plaintiff’s Complaint due to service  of process issues.

In this case, the court found that the Plaintiff’s Complaint, which was filed on the last possible day before the expiration of the statute of limitations, but which was not properly and timely served as required by law, was barred by the statute of limitations.

The Superior Court noted that, under Lamp v. Heyman and the cases following that decision, a Plaintiff is required to make a diligent, timely, good faith effort to serve Defendants with original process.

In this decision, the court confirmed that violations of the rules of service of process can be pursued by a Defendant by way of Preliminary Objections.

In this case, the court found that the Plaintiff failed to ensure that original process was properly served within the required thirty (30) days. The Plaintiff also then violated the rules by engaging a private process server to complete service.

The Superior Court confirmed that the rules regarding proper service of original process must be strictly followed. The court reiterated a well-settled rule that the failure to perfect service is fatal to a lawsuit.

The Superior Court also reaffirmed the general rule of law that actual notice of a lawsuit by a Defendant does not excuse the failure of the Plaintiff to serve the Defendant with original process in accordance with the Rules of Civil Procedure.

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.