Court Addresses Whether Topic of Expert Opinion Is Outside Scope of Understanding of Lay Jurors

In the case of Dragann v. Florey Lumber Co., No. 2020-CV-4118 (C.P. Lacka. Co. July 18, 2025 Nealon, J.), the court addressed a Motion for Summary Judgment filed by an Additional Defendant relative to a Joinder Complaint. 

According to the Opinion, this case arises out of issues related to the construction of a residential home. More specifically, after the Plaintiffs moved into the home, issues allegedly arose with regard to the white limestone that had been utilized as part of the construction of the exterior of the home. The Plaintiffs alleged that the limestone had deteriorated, which allowed for water infiltration.

One of the original Defendants asserted a claim against an Additional Defendant and asserted that, due to the original Defendant’s lack of prior experience in using limestone on exterior surfaces on homes in Northeastern Pennsylvania, that original Defendant allegedly relied upon the Additional Defendant and its expertise with limestone to determine whether and how the limestone could be installed safely in the climate of Northeastern Pennsylvania.

The claim in the original Defendant’s Joinder Complaint sounded in negligent misrepresentation against the Additional Defendant.

Judge Nealon provided a current overview of the status of the law pertaining to negligent misrepresentation claims.

One of the essential questions in this case was whether expert testimony is required to sustain a negligent misrepresentation claim. The court noted that the litigants did not produce any precedent in this regard and that the court’s own research revealed that such expert evidence is generally unnecessary.

The court noted that, the subject matter at issue was not so related to a particular science, profession, business or occupation as to be beyond the ordinary knowledge or information customarily possessed by the average layperson or juror. Accordingly, the court ruled that no expert report was required in order to establish a case of negligence on the part of the Additional Defendant.

Rather, the court found that jurors would be capable of determining whether the Additional Defendant’s representative made the alleged representations regarding the suitability of exterior limestone in the local climate, that the Additional Defendant failed to conduct a reasonable investigation as to the truthfulness of those representations, that the original Defendant justifiably relied upon the misrepresentations and that the original Defendant’s justifiable reliance upon the misrepresentations ultimately caused the harm alleged by the homeowners.

Accordingly, based on the above law and findings, the court denied the Additional Defendant’s Motion for Summary Judgment.

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

Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Link for the Marhunova v. Fitler Constr. Group Case

Here is the LINK  for the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), which was highlighted in yesterday's Tort Talk blog post.  In this case, the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

Apologies for any confusion or consternation caused by the Link not being included in yesterday's post.

Thanks for reading Tort Talk.

Multi-Million Dollar Jury Verdict Upheld By Philadelphia Court

In the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

According to the Opinion, the Plaintiff's decedent fell from the fifth floor of a building to his death.  Among the claims presented was that the Plaintiff's decedent was not presented with fall protection equipment.

In reviewing post-trial motions, the trial court judge wrote in his Rule 1925 Opinion that the Plaintiff had presented sufficient evidence to support the jury's verdict.  The court noted that the Plaintiff had presented sufficient evidence to enable the jury to make a determination as to who the alleged general contractor on the job was and who, therefore, was responsible for the provision of safety equipment on the site. 

In response to the challenges to the amount of the award, the court otherwise held that there was no evidence that the jury's award resulted from bias, impartiality, prejudice or ill will.  The court instead found that the verdict was supported by the evidence presented and that the verdict was not grossly excessive under the circumstances and, therefore, did not shock the court's conscience.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Phila. Judge Upholds $68.5M Verdict Over Construction Worker's Death" by Aleeza Furman of The Legal Intelligencer (Dec. 27, 2024).

Source of above image:  Photo by Sylvia Brazzoduro on www.unsplash.com.

Multi-Million Dollar Jury Verdict in Construction Case Deconstructed by Superior Court (Non-Precedential)

In the non-precedential case of D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa. Super. Feb. 28, 2024 Lazarus, J., Panella, P.J.E., Colins, J.)(Op. by Colins, J.), the Pennsylvania Superior Court ruled that a new trial should be granted in a construction injury case in which the jury had awarded $6.4 million to the Plaintiff.

The Pennsylvania Superior Court held that the trial court’s jury charge improperly omitted an instruction on a key liability issue, rendering the jury instructions misleading and inaccurate.

More specifically, the Superior Court ruled that the trial court’s jury charge completely omitted any instruction on the issue on which the Defendant had sought an instruction, that is, on the issue whether retention of some authority over safety and enforcement of safety requirements can constitute the kind of retention of control sufficient to find liability under Pennsylvania law.  The appellate court found that this omission by the trial court was an error of law on the central liability issue in the case.

As such, the case was remanded for a new trial.

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


Source: “PA. Appeals Court Tosses $6.4 M judgment based on faulty jury instruction,” by Aleeza Furman. Pennsylvania Law Weekly (Feb. 29, 2024)

Court Addresses Retained Control Doctrine in Workplace Accident Case

In the case of Covanta v. D’Amico, Nov. Term 2019, No. 01334 (C.P. Phila. Co. June 22, 2023 Bright, J.), a trial court issued a Rule 1925 Opinion regarding its denial of post-trial motions in a third party liability case arising out of a workplace accident.

Of note, among the sixteen (16) claims of error addressed by the trial court were issues regarding whether a landowner Defendant who engages an independent contractor to perform work on the landowner’s property is liable for injuries to the independent contractor’s employees. In this regard, the trial court reviewed the doctrine of retained control.

After reviewing the record before it, the court found that the evidence established that the landowner did indeed regain control over the project which resulted in the Plaintiff’s injuries. In this regard, the court pointed to the landowner’s long-term history of control over the contractor’s various projects, the terms of the contract with the contractor, and the events involved in the subject incident.

The court pointed to the Restatement (Second) of Torts relative to the retained control exception to non-liability of a landowner who engages an independent contractor who has an employee injured on the job.

Under the retained control exception, one who entrusts work to an independent contractor, but who retains control of any part of the work, remains subject to potential liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. 

 The court noted that the central issue to be determined in this regard is whether the employer/landowner retained control of the means and the methods of the work to be completed. In other words, did the employer/landowner successfully delegate the duty to the independent contractor to complete the entire job, or did the employer/landowner retain certain authority over the job.

As noted, the trial court had denied post-trial motions in this case.  

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2023).

Motion for Summary Judgment Based on Spoliation Argument Denied

In the case of Hein v. Master Builders Solution Admixtures U.S., LLC, No. 21-1116 (W.D. Pa. June 22, 2023 Hardy, J.), the court denied a Defendant’s Motion for Summary Judgment based upon a spoliation of evidence argument.

In this case, the court found that the record revealed that the Plaintiff had removed all of the allegedly defective building product from the property and had disposed of that product, except for one (1) bucket of material that was then later lost. All of this occurred before the Plaintiff gave the Defendant notice or opportunity to inspect.

As a result, the Defendant claimed that it was now impossible to determine if the Defendant had manufactured the now missing product.

The court noted that, although two (2) elements of spoliation were established, i.e., control of the evidence and relevance, there was no evidence revealed, to date, to conclusively establish the remaining two (2) factors, i.e., the actual withholding of evidence and the foreseeability that the evidence was discoverable.

According to the court, it was the Plaintiff’s claim that, at the time of the removal and the disposal of the product in question, the Plaintiff was not contemplating the lawsuit. The Plaintiff additionally claimed to have left one (1) bucket of the product with the buyers of the property after notifying the Defendant of the claim. The court noted that what had happened to that last bucket thereafter was not clear.

The court denied the Defendant's Motion for Summary Judgment based upon spoliation but allowed the Defendant to renew its argument after a full record was developed in the case.

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

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

Source of image:  Photo by Lucas Van Oort on www.unsplash.com.

Article: Pennsylvania Supreme Court Shows Teasing Signs of Moderation

This article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission.

Pennsylvania Supreme Court Shows Teasing Signs of Moderation


June 01, 2023


By Daniel E. Cummins | June 01, 2023 at 11:34 AM

Over the past five years or so, the Pennsylvania Supreme Court has been issuing one decision after another, along with civil litigation rule changes, most, if not all of which, have greatly favored personal injury plaintiffs’ causes.

With these plaintiff-friendly decisions and rule changes handed down by the Supreme Court, there appeared to be no end in sight to the ability of the plaintiffs bar to continue to score drastic changes in the law in favor of efforts to secure compensation for injured parties.

However, as noted below, a couple of recent decisions by the Pennsylvania Supreme Court have tempered this sense of futility for some.

The Pendulum Shift in Favor of Plaintiffs

Over the past several years, the great number of plaintiff-friendly decisions and rule changes issued by the Supreme Court has caused the pendulum of change in Pennsylvania civil litigation precedent to swing so far in favor of plaintiffs that it seems that celebrating plaintiffs attorneys should be ducking so as not to get hit by that pendulum as the good times roll on.

One result of these plaintiff-friendly decisions by the Supreme Court has been that injured parties have realized even wider avenues to secure money in civil litigation matters. Another result is that plaintiffs have been emboldened in their settlement postures with the confidence that, under the current climate, if any legal issues in their case have to go up the appellate ladder to the Supreme Court, the plaintiff will more than likely prevail.

In terms of plaintiff-favorable rule changes in personal injury civil litigation matters, the Supreme Court has expanded the Rules of Civil Procedure relative to the proper venue for medical malpractice actions. This, as expected, has led to an increase of the filings of such cases in Philadelphia County as compared to before.

Another plaintiff-friendly change in the venue rules was handed down by the Supreme Court by way of its decision in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021). In the Fox decision, the plaintiff was successful in persuading the Supreme Court to rule that internet-based defamation claims can be filed in any county where the defamatory statements were viewed and understood as defamatory.

In another rule change, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration proceeding.

Other recent plaintiff-friendly decisions by the Supreme Court have been described as resulting in “seismic” changes in decades-long Pennsylvania precedent. For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Supreme Court to overrule long-standing precedent that limited the liability exposure of PennDOT in personal injury matters. In Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent that had previously upheld governmental immunity in personal injury matters in a more expansive way.

Also, in almost gleeful language in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the Supreme Court overruled the 20 years of precedent that had previously and repeatedly upheld the validity of the household exclusion in the UIM context of personal injury automobile accident matter. As noted below, in a more recent decision on the validity of the household exclusion, that plaintiff-friendly ruling in Gallagher was found to be so inappropriately expansive in its effort to eradicate that exclusion across the board that even the high court acknowledged that it had to draw back on Gallagher a bit.

A Return to Moderation?

In two recent decisions, both of which were expected to result in plaintiff-favorable rulings, the Supreme Court surprised some with opinions that were not plaintiff-friendly.

In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Supreme Court, without acknowledging that it had attempted to eradicate the household exclusion in UIM cases across the board in the Gallagher v. Geico case, rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania. In Mione, the court instead wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”

The court instead confirmed in the Mione decision that the Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”

This decision came as a welcome surprise to some and a hopeful harbinger that the court was stepping away from its penchant for decisions that resulted in seismic, plaintiff-friendly changes to long-standing precedent in Pennsylvania law.

In the other example of a recent Supreme Court decision that seemed to indicate that the court may be signaling a return to more balanced application of long-standing law, the court addressed issues of the stacking of UIM coverage in automobile insurance personal injury actions.

In the case of first impression of Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure another written waiver of stacked coverage from the insured under Section 1738(c).

The basic rationale of the court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, the court found there was no requirement under a plain application of the applicable law for the insurance company to secure a new waiver form.

Might the above decisions by the plaintiff-friendly Pennsylvania Supreme Court be a signal that the pendulum had finally reached its apex and was going to start its descent back toward moderation relative to issues in personal injury civil litigation matters?

Not So Fast

On the heels of the above recent decisions indicating a possible step back toward at least moderate decisions in personal injury civil litigation matters, the Pennsylvania Supreme Court then recently issued yet another very plaintiff-friendly decision in the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting). With this decision, the Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained on a property by allowing such claims to be brought even if the contractor had completed his work on the property years before.

In Brown, the plaintiff allegedly tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before the incident. The plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library.

The case went up the appellate ladder and the Pennsylvania Supreme Court addressed the scope of Section 385 of the Restatement (Second) of Torts, which is titled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

The issue before the court was whether Section 385 imposed liability upon a contractor to a plaintiff whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the plaintiff, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

After reviewing the law, the Supreme Court concluded that a contractor may indeed be subjected to liability to plaintiffs under Section 385 under such circumstances. Obviously, this decision is another one in which the Supreme Court once again increased the number of parties plaintiffs may sue and widened the scope of possible monetary recoveries for injured-party plaintiffs.

So You’re Saying There’s a Chance?

One benefit of the two recent moderate decisions issued by the Pennsylvania Supreme Court in the Mione case and the Franks case is that those decisions give rise to some uncertainty, however minimal, as to which way the Pennsylvania Supreme Court may rule on a personal injury civil litigation issue before it. While it appears that the Supreme Court will likely remain plaintiff-friendly for the foreseeable future, the two recent decisions in which the defense argument prevailed serves to restore some faith in a belief that a plaintiff-favorable decision on any given issue before the court may not be automatic.

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

Pennsylvania Supreme Court Approves Personal Injury Claim by Plaintiff Against a Contractor Based Upon Work Completed Years Before

In the case of Brown v. City of Oil City, No. 6 WAP 2022 (Pa. May 16, 2023) (Op. by Todd C.J.)(Mundy, J., Dissenting), the Pennsylvania Supreme Court addressed the issue of whether §385 of the Restatement (Second) of Torts imposes liability upon a contractor to a third party whenever the contractor, during the course of his or her work for a possessor of land, creates a dangerous condition on the land that injures the third party, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor of the land was aware of the dangerous condition.

The court noted that §385 of the Restatement (Second) of Torts is entitled “Persons Creating Artificial Conditions on Land on Behalf of Possessor, Physical Harm Caused After Work Has Been Accepted.”

Section 385 addresses the liability of a party erecting or repairing a structure on behalf of a possessor of land after that work has been completed and accepted.    

This case arose out of an incident during which a Plaintiff tripped and fell on deteriorated sections of concrete steps outside of a library, which steps had been replaced by a contractor years before. The Plaintiff sued the owner of the library as well as the contractors who performed work on the exterior stairs to the library.  According to this decision, the Plaintiff stated cognizable causes of action.

After reviewing the law, the Pennsylvania Supreme Court concluded, as did the Commonwealth Court below, that a contractor may indeed be subjected to liability under §385 in such circumstances. As such, the judgment of the Commonwealth Court was affirmed.

Anyone wishing to review a copy of this decision may click this LINK.  Justice Mundy's Dissenting Opinion can be viewed HERE.


I send thanks to Attorney Kenneth T. Newman of the Pittsburgh, PA office of Thomas, Thomas & Hafer, LLP  for bringing this case to my attention.

No Jurisdiction Found Over Out-of-State Contractor in Construction Litigation Case

In the case of Bean Sprouts LLC v. Life Cycle Const. Serv., LLC, No. 1467 EDA 2021 (Pa. Super. Feb. 17, 2022 Panella, P.J., Dubow, J., McCaffery, J.) (Op. by Panella, P.J.), the Pennsylvania Superior Court held that the trial court did not err when it found that the Defendant did not have the requisite minimum contacts with Pennsylvania for the trial court to exercise jurisdiction.

According to the Opinion, this case arose out of a construction contract dispute.

The Plaintiff was a construction and excavating company and the Defendant was a contractor engaged in construction projects throughout the country.

The Plaintiff filed a breach of contract action in Pennsylvania. The Defendant contractor filed Preliminary Objections asserting that it did not have the requisite minimum contacts with Pennsylvania such that a Pennsylvania court could not exercise personal jurisdiction over the Defendant.

The trial court sustained the Preliminary Objections and the appellate court affirmed.

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

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

Photo by skitterphoto on www.pexels.com.

No Duty to Defend or Indemnify Found Relative to Alleged Faulty Workmanship in a Home Construction Case

In the case of Main St. Am. Assurance Co. v. Conolly Contractors, Inc., No. 2:19-CV-04241-JHS (E.D. Pa. Feb. 28, 2022 Slomsky, J.), the court granted the carrier’s Motion for Judgment on the Pleadings in its declaratory judgment action.

The issue in this case is whether the carrier had a duty to defend and indemnify a contractor or builder who was sued by homeowners for alleged home construction defects.

The court found that the carrier had no duty to defend and indemnify because the homeowners’ claims of faulty workmanship did not allege that the property damage was caused by an “occurrence” as required by the contractor’s policy of insurance.

The court additionally found that the builder was not listed as an additional insured under the contractor’s policies.

As such, the carrier’s Motion for Judgment on the Pleadings in this declaratory judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 24, 2022).

Summary Judgment Granted in Construction Area Trip and Fall Case

In the case of Cappolella v. R & R. Constr., No. 4526-CV-2017 (C.P. Monroe Co., Sept. 22, 2020, Williamson, J.), the court entered summary judgment in favor of a tenant Defendant in a trip and fall case. 

According to the Opinion, the moving Defendant was a tenant in a commercial building that was under construction. The Plaintiff’s Complaint alleged that he sustained injuries when he fell while performing construction work elsewhere on the premises. The moving Defendant was a tenant on the premises and operated a pizzeria. Other Defendants were construction companies performing work on the premises. 

The moving tenant Defendant filed a Motion for Summary Judgment arguing that it had no involvement with the work being performed by the construction Defendants. Under the lease in the records, the moving Defendant was only responsible for any repairs to its portion of the lease premises and that it had no responsibility for the maintenance for the rest of the building. 

The moving Defendant asserted that it had no knowledge of any of the construction being performed elsewhere on the premises at the time of the Plaintiff’s alleged injuries. The moving Defendant also asserted that it did not even know about the accident until notified of the same by the Plaintiff’s attorney. 

In the Plaintiff’s response, it was asserted that the tenant Defendant was generally liable as a possessor of land. 

The court disagreed and granted summary judgment in favor of that particular Defendant after finding that the Plaintiff failed to allege sufficient fact to make out a claim that the tenant Defendant had acted negligently. The court emphasized that there was no evidence that the tenant Defendant had hired, directed, or managed any of the work being performed by the construction Defendants. It was also emphasized that the Plaintiff was not injured on the portion of the premises leased by the moving Defendant. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 10, 2020). 

Need assistance in bringing your slip or trip and fall case, or your construction case, to a close.  Please consider CUMMINS MEDIATION SERVICES.  

Contact Dan Cummins today at dancummins@CumminsLaw.net or at 570-319-5899 to schedule your Mediation.

Building Inspector Found to Be Immune From Claims of Negligence

In the case of Brown v. Taylor Construction and Demolition, No. 13-CV-2727 (C.P. Lacka. Co. April 2, 2020 Nealon, J.), the court addressed a request from a building official for a finding of immunity from claims liability relative to residential construction work.

According to the Opinion, residential property owners, who allegedly suffer damage as a result of negligent construction work by a contractor, filed suit against the contractor and the entity that was hired to act as the borough’s building construction code official to perform inspections and to grant approvals for construction activities upon request by the contractor. 

The Plaintiffs alleged that the contractor completed substandard work without requesting any inspection or obtaining the proper approvals of the work completed. 

The Plaintiffs separately asserted that the building official was allegedly negligent in conducting inspections and in failing to issue stop work orders.

The case came before the court by way of a Motion for Summary Judgment filed by the building official. The building official asserted that he was immune from liability under the International Residential Code and the Political Subdivision Tort Claims Act. 

Judge Nealon noted that, under the International Residential Code, a building construction code official is immune from liability for any act or omission in the discharge of his or her official duties for the borough which occurred while acting “in good faith and without malice.” 

The court noted that, in this matter, the records lacked any evidence to support a claim that the borough construction code official acted with any malice or bad faith. 

Accordingly, the court held that it was free and clear from doubt that the building construction code official was entitled to judgment as a matter of law. As such, summary judgment was granted.

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

Building Code Officials Granted Immunity Under Tort Claims Act

Whether building code officials contracted to enforce the Construction Code Act by a local governmental entity are entitled to immunity under the Tort Claims Act was addressed in the case of Hartzell v. SM Ross, Inc., et.al., No. GD 17-CV-011430 (C.P. Allegh. Co. March 25, 2019 Connelly, J.).  In this case, the court ruled in favor of the Defendants, finding that these particular Defendants were indeed afforded immunity in negligence causes of action.  

According to the Opinion, this case arose following a landslide which damaged the Plaintiff’s newly purchased home.   The Plaintiffs failed a Complaint against Building Inspection Underwriters, Inc. and other Defendants, including a local governmental agency. 

The court generally noted that the local governmental agency was entitled to the immunity provided under 42 Pa. C.S.A. §8541 of the Tort Claims Act. 

The court additionally noted that the Pennsylvania Code requires that local governmental entities appoint a building code official to enforce the Construction Code Act.  

In part, the Plaintiffs sued the Borough Code Officials for failing to enforce the code provisions relative to the premises at issue.   In response, those particular Defendants asserted that they were entitled to protections afforded by the Tort Claims Act.   In the end, the court ruled that the Tort Claims Act does indeed afford immunity to Building Code Officials contracted to enforce the Construction Code Act by a local governmental agency.

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

I send thanks to Attorney William J. Bryers of the Philadelphia law firm of Pillinger, Miller, Tarallo, for bringing this case to my attention.  

Intermediate Form of Indemnity Agreement in Contractor-Subcontractor Construction Agreement Found

In its recent unpublished "non-precedential" decision in the construction accident case of Bracken v. Burchick Construction, 1432 WDA 2012 (Pa. Super. Oct. 10, 2014 Panella, J.), the Pennsylvania Superior Court found that language used in the parties’ Subcontractor Agreement was sufficient to establish an intent to enter into an intermediate form of an indemnity agreement such that, after waiving its immunity under the Workers’ Compensation Act, a subcontractor may be deemed to possibly be required to reimburse the general contractor for a $3.1 million dollar settlement owed after the death of the subcontractor’s own employee as a result of a work place accident.  

According to the Opinion, the decedent Plaintiff’s representative filed a lawsuit against the general contractor for the construction project.  The general contractor then filed a Complaint to join the Plaintiff’s decedent’s employer, who was a subcontractor on the same work site.  

The court found that under language contained in the Subcontractor Agreement, the subcontractor agreed to assume the entire liability for any injury or death suffered by its employees as a result of the subcontractor’s negligence.   The court viewed the language of the subcontract to be considered an intermediate form of an indemnity agreement.   Accordingly, the subcontractor was found to have agreed to indemnify the general contractor for the entire liability if the liability stems from the subcontractor’s partial or sole negligence.

 

Judge Panella's majority Opinion can be viewed HERE.

 

Judge Olsen's dissenting Opinion can be viewed HERE.

 

 

 

 

 

 

Duties Owed in Construction Accident Case Reaffirmed

 

In its recent decision in the case of Nertavich v. PPL Electric Utilities, 2014 Pa. Super. 184 (Pa. Super. Aug. 27, 2014 Ford Elliott, P.J.E., Ott, J., Strassburger, J.)(Op. by Ott, J.) (Strassburger, J., dissenting), the Pennsylvania Superior Court addressed the duties owed in a case involving an injury to an employee of an independent contractor.    

The court more specifically ruled that the electric company Defendant was entitled to a judgment notwithstanding the verdict in a case arising out of injuries to an employee of an independent contractor hired to paint electric transition pole. 

 

The court found that there was an insufficient degree of control for liability purposes even though there was a designation of a contract field representative by the defendant to be responsible for monitoring safety practices, and even though internal company documents setting forth safety guidelines for employees were produced.

 

Such evidence was found to be insufficient to establish that the Defendant electric company retained control of job sites as an owner such that liability could be imposed for injuries to employees of the independent contractor.  

 

In so ruling, the Nertavich court relied heavily upon the Pennsylvania Supreme Court's decision in the case of Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. 2011) which was summarized in this TORT TALK POST. 

 

The Majority Opinion by Judge Ott can be viewed HERE.

 

Judge Strassburger's dissenting Opinion (a simple two-line affirmation of the trial court opinion) can be viewed HERE.

 

 

 

A Supreme Victory for Residential Homebuilders

In its August 18, 2014 decision in the case of Conway v. Cutler, No. 80 MAP 2013 (Pa. Aug. 18, 2014)(Op. by McCaffery, J.), the Pennsylvania Supreme Court ruled that a subsequent purchaser of residential real estate cannot pursue a contractual claim for implied warranty of habitability as that claim is limited to original homeowners who had a direct contractual relationship with the builder/vendor. 

According to some who practice construction litigation, this case is an enormous victory for residential homebuilders in Pennsylvania who have been subjected to litigation involving water intrusion into stucco clad homes.  In the majority of these cases, the negligence claim is extinguished pursuant to the gist of the action doctrine and there is no express warranty claim for a subsequent purchaser.  Without the implied warranty claim, these remote purchasers are left with no recourse.

I send thanks to Attorney Joe Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention hot off the presses along with explaining the impact of the same in construction litigation matters.
 

Anyone wishing to review this case may click this LINK.

Pennsylvania Supreme Court Addresses Scope of Statutory Employer Immunity

In its recent decision in the case of Patton v. Worthington Associates, Inc., 2014 WL 1236499 (Pa. March 26, 2014) (Opinion by Saylor, J.) (concurring Opinion followed by Baer, J.), the Pennsylvania Supreme Court held that neither a subcontractor nor a subcontractor’s sole shareholder was an “independent contractor” relative to the statutory employer provisions of the Workers’ Compensation Act. 

 

By way of background, a subcontractor in this matter brought a negligence action against the general contractor to recover for injuries alleged sustained at a work site from a 14 foot fall.  

 

After a trial in the Bucks County Court of Common Pleas, the trial court entered judgment on the verdict in favor of the Plaintiffs and denied the general contractor’s Motion for Judgment Notwithstanding the Verdict (JNOV).   The general contractor appealed the Supreme Court ruled as noted above.  

 

The Pennsylvania Supreme Court noted that, pursuant to the Workers’ Compensation Act, general contractors are deemed to bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors and, in this sense, general contractors are considered to be “Statutory Employers” relative to workers’ compensation liability, even though they are not common-law employers of the subcontractor’s employees.

 

Accordingly, the court went on to note that such Statutory Employers, including general contractors, could enjoy a measure of immunity from liability under the Workers’ Compensation Act for tort claims pertaining to work-related injuries.  

 

The Supreme Court went on to note that the governing law should have been applied by the trial court at the summary judgment stage before this case ever reached a trial in which the jury ruled in favor of the Plaintiff.  

 

In light of this decision in the case of Patton v. Worthington Associates, many general contractor and subcontractor Defendants in construction cases where a construction worker has been injured on the job have been amending their Answer and New Matter, or in federal court, their Answer and Affirmative Defenses, to include the statutory employer defense in order to preserve that defense to be raised at the Motion for Summary Judgment stage of the case.  

 

Anyone wishing to review a copy of Justice Saylor's majority opinion in the case of Patton v. Worthington Associates, Inc., may click this LINK.  Justice Baer's concurring opinion may be viewed HERE.  

Judge Williamson of Monroe County Addresses Necessity of Expert Testimony in Support of Negligence Claim

In his recent decision in the case of S&S Family Partnership v. William H. Lane, Inc., No. 7858 - CV - 2007 (C.P. Monroe Jan. 16, 2014 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed the necessity of a Plaintiff producing expert testimony in support of its negligence claim in order to be able to proceed beyond the motion for summary judgment stage and to trial.

The Plaintiff in this case owned a restaurant that sustained runoff water damage as a result of a nearby drainage basin that was allegedly constructed and maintained by the defendants.

The Defendants filed a Motion for Summary Judgment on the grounds that the Plaintiff had failed to produce any expert opinion on the issues of negligence and causation.  The Defendants asserted that where engineering or professional negligence was alleged, a plaintiff must produce expert testimony to support such claims.

The Plaintiff's countered with the argument that the claims presented were based on basic negligence principles and were not grounded in any professional negligence claim.  The Plaintiff asserted that allegations against the construction contractor Defendants could be addressed by lay people on the jury in the absence of any expert testimony.



Judge David J. Williamson
Monroe County

While Judge Williamson agreed with the Plaintiff that the claims presented did not amount to a professional negligence claim, the court nevertheless held that the case presented facts and circumstances of alleged negligence and causation pertaining to the design, maintenance, and care of a drainage basin to that would be beyond the ordinary knowledge of the lay people who would make up the jury.

Accordingly, the court ruled that the Plaintiff was indeed required to present expert testimony and the failure to do so resulted in the entry of summary judgment in favor of the Defendants.

Anyone wishing to review Judge Williamson's Opinion in the case of S&S Family Partnership may click this LINK.

It is noted that Attorney Kimberly M. Kostun, special counsel with Scranton office of the firm of Hinman, Howard & Kattell, LLP represented Defendant, William H. Lane, Inc., in this matter.

ARTICLE: Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014

The below article of mine appeared in the December 24, 2013 Pennsylvania Law Weekly and is republished here with the permission of the publisher, American Law Media, Inc.

Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014

by

Daniel E. Cummins

Pennsylvania Law Weekly

December 24, 2014

 

In last week's column, I reviewed the important cases and trends in Pennsylvania civil litigation matters over the past year. As President John F. Kennedy once said, "Change is the law of life." Here's a look into anticipated developments in the law that may change life as we know it as civil litigators in Pennsylvania.

Currently, there are a number of important civil litigation issues pending before the Pennsylvania appellate courts, the results of which could significantly impact the way litigators practice in the years ahead. Moreover, notable changes over the past year in Pennsylvania statutory law, as well as the Rules of Professional Responsibility, are expected to have a significant impact.

Products Liability

In a case of paramount importance to civil litigators, the Pennsylvania Supreme Court heard argument in Tincher v. Omega Flex on Oct. 15. The central issue presented in that case is whether the strict liability analysis of Section 402A of the Second Restatement that most of us learned in law school should be replaced by the Restatement (Third) of Torts analysis, and whether the court's holding in this regard should be applied prospectively or retroactively.

While the Second Restatement calls for a narrow application of negligence principles in the products liability context, the Third Restatement decreases the emphasis upon the concepts of "intended use" and "intended user," while placing a greater emphasis on the doctrine of "reasonable foreseeability."

The changes advocated by the Third Restatement standard would arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product. However, the balance will be shifted in favor the manufacturers of allegedly defective products by creating a higher hurdle for injured parties on the question of liability.

Expert Witness Discovery

Another civil litigation issue that could impact most trial attorneys was argued before the Pennsylvania Supreme Court in the case of Barrick v. Holy Spirit Hospital in April. For full disclosure purposes, note that I drafted the amicus curiae brief on behalf of the Pennsylvania Defense Institute in support of the defense position at the initial Superior Court level only.

In Barrick, the Cumberland County trial court originally ruled that the written communications between a plaintiffs attorney and a medical expert retained for purposes of trial testimony were indeed discoverable. The trial court ruled in this fashion after conducting a confidential in camera review of the communications by plaintiffs counsel with the plaintiff's medical expert and found that such communications could have "materially impacted" the expert's formulation of his opinion.

On the initial appeal, the original three-member panel of the Superior Court affirmed the trial court's decision in favor of the defense argument that the written communications between the plaintiff's attorney and the plaintiff's expert were indeed discoverable.

However, on reargument before an en banc panel of the Pennsylvania Superior Court, the original Superior Court decision was reversed. Based in part upon the application of the attorney work-product doctrine, the en banc panel of the Superior Court instead ruled that these communications between an attorney and an expert in preparation for the creation of an expert opinion for trial testimony were not discoverable. The case was then appealed up to the state's highest court.

The Supreme Court's decision in Barrick will be closely watched by civil litigators, as it could substantially impact how, and to what extent, attorneys may confidentially confer with their experts prior to trial.

Post-Koken Litigation

In terms of other post-Koken issues, here's to hoping that the appellate courts will have many opportunities in 2014 to address numerous other novel questions of importance in the post-Koken era of motor-vehicle accident cases so as to provide much-needed guidance.

Such recurring and troublesome issues include the consolidation versus severance of claims, written discovery issues, whether depositions of UM/UIM claims representatives should be allowed (and, if so, to what extent), bifurcation of trial, admissible trial evidence, and proper jury instructions, just to name a few.

Medical Malpractice

In terms of important legislative changes, the Benevolent Gesture Medical Professional Liability Act was signed into law in October.

Under this new law, in certain limited circumstances, Pennsylvania doctors may now be able to apologize to patients and families in matters of medical malpractice without fear of having such apologies used against them in a court of law.

The act provides that certain benevolent gestures shall be inadmissible at trial as evidence of liability. However, this preclusion of evidence would not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or an event.

The apparent rationale behind the law is that the number of medical malpractice claims may be diminished by such apologies. Whether this change in the law actually results in a decrease in claims in reality remains to be seen.

Construction Litigation

In the area of construction litigation, the Pennsylvania Supreme Court recently granted allocatur in the case of Conway v. Cutler, No. 954 MAL 2012 (Pa. Oct. 15, 2013), to address an issue regarding implied warranty claims and remote/subsequent purchasers of newly constructed residential homes.

According to attorney Joseph Walsh of Walsh Pancio, an attorney who defends a number of construction defect claims, these implied warranty claims are generally at the center of complaints filed by homeowner plaintiffs. Consequently, the Pennsylvania Supreme Court's decision in Conway has great potential ramifications for the building industry and insurers who are still providing defenses in these types of claims under a reservation of rights on any coverage questions.

The Wave of the Future

On the ethical front, as reported by the Law Weekly's Max Mitchell in an Oct. 29 article titled "Justices Add Tech Savviness to Professional Responsibility," the Pennsylvania Supreme Court has recently amended the rules of ethics that govern attorney conduct.

The amended ethical rules now add a requirement that all Pennsylvania attorneys keep abreast of not only changes in the law but also, with the advancement of computer technology, the "benefits and risks associated with relevant technology" in the practice of law. Also emphasized was a greater need to take precautions against inadvertent exposure or disclosure of documents online or otherwise.

As such, it seems that, from this point forward, lawyers need not only be ethical bookworms but, at least in some fashion, computer-literate "techies" as well. 


Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.