Pennsylvania Supreme Court Addresses Standards For Granting New Trial on Damages

In the case of Mader v. Duquesne Light, No. 33 WAP 2019 (Pa. Nov. 18, 2020) (Op. by Todd, J.), the court addressed whether a Plaintiff was entitled to a new trial on damages in a personal injury case.

According to the Opinion, the Plaintiff was working on a project at a home and, in the course of his work, a metal ladder of his came into contact with an electric powerline and the Plaintiff was electrocuted and sustained personal injuries as a result. 

The Plaintiff sued the owner of the powerline under allegations of negligence in maintaining the electric lines too close to the ground. 

At the conclusion of a trial by jury, the Defendant was found to be 60% negligent and the Plaintiff was 40% negligent. 

The Plaintiff filed a Motion for Post-Trial Relief requesting a new trial on the issue of damages. 

While the defense acknowledged that the Plaintiff was entitled to a new trial on the claim for damages for pain and suffering up through the date his wounds healed and for his disfigurement claims, the defense disputed that the Plaintiff was entitled to a new trial on future non-economic damages, or either past or future lost earnings. 

The trial court granted the Plaintiff’s request for a new trial on all damages.

The Pennsylvania Supreme Court in this decision agreed with the Pennsylvania Superior Court that the trial court had abused its discretion in ordering a new trial on all damages. 

In its decision, the Pennsylvania Supreme Court stated that it was considering the limits on a trial court’s discretion to order a new trial on all damages where the jury’s award on some of the damages alleged was based upon stipulations and/or was otherwise unimpeachable.

As stated, the Pennsylvania Supreme Court asserted that the trial court should have only granted a limited new trial with regards to only certain damages and not with respect to all of the damages that were in issue.


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

Justice Mundy's Dissenting Opinion can be viewed HERE.

Pennsylvania Superior Court Rules Jury Cannot Award Damages That Were Neither Sought or Proven

In the case of Stapas v. Giant Eagle, Inc., 2016 Pa. Super. 303 (Pa. Super. Dec. 23, 2016 Stabile, J. Bowes, J. Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed, in part, the trial court’s denial of post-trial motions in a personal injury matter arising out of a shooting incident. 

Of note was the fact that the court found that the amount of $1.3 million dollars awarded the Plaintiff for future income loss was not supported by the evidence and was not even sought by the Plaintiff.  As such, the court ruled, under the rationale that a verdict must bear a reasonable resemblance to the proven damages, that a jury cannot award damages that were neither sought nor proven.   In so ruling, the court also stated that, even though the jury was not required to itemize its award of damages, it chose to do so, and those findings revealed the unsupported award.   

This decision is also notable in the Superior Court’s decision that the brief mention of the Plaintiff’s lack of health insurance did not require a new trial.  The court noted that this testimony was immediately stricken by the trial court.   The Superior Court also reasoned that the prohibition against the mentioning of insurance in civil litigation matters under Pa. R.E. 411 generally applies to a Defendant’s possession of liability insurance.  

The Stapas court also addressed the assumption of risk defense raised in this matter and stated that getting into a fight should not be considered the assumption of the risk of being shot.   The court emphasized that, in the case before it, the Plaintiff did not know that his attacker was armed.  

 The court returned the case to the trial court for a new trial on damages only.  

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.    

Zero Verdict Overturned by Superior Court (Non-Precedential)

In the non-precedential Memorandum decision in the case of Hernandez-Lerch v. Gray, No. 842 MDA 2015 (Pa. Super. May 17, 2016 Panella, Lazarus, Platt, J.J.)(Op. by Lazarus, J.), by Pennsylvania Superior Court ruled that a trial court erred in denying the Plaintiff’s Motion for a New Trial on the issue on damages after the jury awarded an automobile accident Plaintiff damages for medical bills and wage loss but nothing for pain and suffering.  The court found that uncontested evidence of the Plaintiff’s injuries showed that she had suffered compensable pain that amounted to more than a mere transient rub of life.  

According to the Opinion, the Plaintiff alleged soft issue injuries along with wage losses and medical expenses.   The Superior Court noted that uncontested evidence revealed that the Plaintiff’s injuries were treated with an epidural steroid injection, physical therapy, along with the use of a TENS unit and a home traction unit.   The court reiterated that the evidence of the injury was uncontested and that the Plaintiff’s treating doctor and physician’s assistant offered testimony in records to substantiate the Plaintiff’s alleged injuries.  

More specifically, the court noted that the evidence showed that the Plaintiff suffered cervical and lumbar sprain and strain injuries with resultant pain, along with an aggravation of a pre-existing back injury.  The court also noted that the injuries took at least four (4) months to heal.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 31, 2016).  

Ability of Parent To Recover Damages In Own Right Where Child Injured In MVA

A common question in automobile accident personal injury matters is to what extent a parent can recover damages in a case where claims are pursued on behalf of a minor Plaintiff. 

This issue was addressed in a recent decision by Lycoming County Court of Common Pleas Judge Richard A. Gray in the case of Ritter v. Makos, No. 14-02653 (C.P. Lycoming Co. Nov. 5, 2015 Gray, J.).

In Ritter, the Plaintiff-mother was driving with the Plaintiff-minor, i.e., her daughter, when they were involved in a motor vehicle collision.  A Complaint was filed for personal injuries to the minor Plaintiff.  The Plaintiff-mother did not sustain any permanent personal injuries.

A separate Complaint was filed on behalf of the Plaintiff-mother for her alleged damages arising out of the same accident.  Included in the Plaintiff-mother's Complaint was a claim for a recovery by the Plaintiff-mother of health care costs expended, or to be expended, out-of-pocket by the mother for treatment for the child up to the child reached the age of 18. 

A claim for the pecuniary value of any services the child would have provided to her mother during child's minority if the child was not injured was also asserted on behalf of the Plaintiff-mother.

The defense filed Preliminary Objections asserting that the Plaintiff-mother's claims should be dismissed for failure to state a claim upon which relief may be granted. 

The court denied the Preliminary Objections and noted that the defense had only cited to 75 Pa.C.S.A. Section 1722 of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), but no caselaw.

Judge Richard A. Gray
Lycoming County
 

Judge Gray ruled that the MVFRL did not generally preclude a claim by a parent of a minor child injured in a motor vehicle accident.

The court noted that, under Pennsylvania law, a personal injury to a minor child gives rise to two separate and distinct causes of action.  First, there is a recognized claim for pain and suffering to the child and for losses after the child reaches the age of majority.  Also recognized under Pennsylvania law is a claim by a parent(s) of the injured child for medical expenses and the loss of the minor's services during the minority period of the child's life.

The court noted that, while Section 1722 of the MVFRL precludes double recoveries in auto accident personal injury cases, the claims of the parent and child asserted were separate and distinctly recognized recoverable claims such that no double recovery was involved.

As such, the Preliminary Objections were denied in this regard.

The Preliminary Objections were sustained to the extent the parent was attempting to recover damages for health care expenses and related costs recoverable by the guardian of the minor on the separate claims pursued on behalf of the minor Plaintiff.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Jan. 12, 2016).

Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.



Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.


Source of image:  www.appraiseractive.com

Chester County Court of Common Pleas Addresses Admissibility of Medical Bills

As evidenced in the recent Chester County Court of Common Pleas decision in the case of Hall v. Rite Aid, 61 Chester Co. L. R. 306 (2013 Tunnel, J.), civil litigators across the Commonwealth of Pennsylvania continue to struggle with the issue of the admissibility of a plaintiff's medical expenses at trial.

In his detailed Order in Hall, Chester County Judge Mark L. Tunnel denied a defendant's motion in limine to limit the admission of plaintiff's medical bills

The court permitted the plaintiff to introduce medical bills that have not been accepted [as paid in full] by her healthcare providers.  The court additionally held that, in terms of the plaintiff's unpaid and future medical bills, the fair market value for such services would be applied as the appropriate measure of damages.

Anyone wishing to review Judge Tunnel's detailed Order in the case of Hall v. Rite Aid may click this LINK.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

Source of image: www.robertpeterslaw.com.
 

Judge Nealon Addresses Lack of Expert in FELA Claim

In the case of Mullin v. Delaware and Hudson Railway Company, Inc., No. 2005-Civil-3088 (C.P. Lacka. Co. Nov. 15, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas dismissed a Federal Employers’ Liability Act (FELA) claim alleging occupational exposure pulmonary damage on the grounds that the proof of medical causation was insufficient as a matter of law.

In this matter, the Plaintiff filed suit against his former employer, Defendant, Delaware and Hudson Railway Company, Inc., d/b/a Canadian Pacific Railway a/k/a CP Rail System alleging permanent pulmonary damage as a result of prolonged exposure to dust during the course of his employment as a conductor. 


Judge Terrence R. Nealon
Lackawanna County

 This case came before the Court by way of a Motion for Summary Judgment filed by the Defendant in which the Defendant asserted that the Plaintiff had not produced an expert report from a medical witness opining that the Plaintiff had developed any pulmonary condition due to heavy dust exposure, and, as such, the Plaintiff was unable to satisfy his burden of proof under the FELA.

Judge Nealon noted that, in order to prevail on a claim under the FELA, Plaintiff must prove: (1) that the Defendant was a common carrier by railroad engaged in interstate commerce; (2) that the Plaintiff was employed by Defendant and assigned to perform duties that further such commerce; (3) that Plaintiff’s injuries were sustained while the Plaintiff was employed by the common carrier; and (4) that the Plaintiff’s injuries resulted from the Defendant’s negligence. [citations omitted].

The Court also noted that FELA claims are subject to a relaxed standard of causation which standard provides for a recovery if the employee’s negligence played any part, no matter how small, in bringing about the employee’s injury. [citations omitted]. Judge Nealon noted that, in light of this liberal burden of proof, a Court was justified in granting summary judgment “only in those extremely rare instances where there is 0 probability either of employer negligence or that any such negligence contributed to the injury of the employee.” [citation omitted].

After applying the record before him to the applicable law, Judge Nealon ruled that, where the Plaintiff neglected to produce an expert medical report substantiating, or even addressing, his occupational exposure claim, the Motion for Summary Judgment should be granted. The Court also noted that this particular Plaintiff had never been deposed in this matter which was consolidated with a number of other matters, and there was no record indicating that this particular Plaintiff had ever been diagnosed with a pulmonary alignment or that any such alleged condition was in any way attributable to his occupation.

Judge Nealon further noted this particular Plaintiff had “not identified a scintilla of medical proof” or “an iota of medical evidence” in support of the causation element and, as such, based upon the record before the Court there was indeed a “zero probability” that any negligence by the Defendant employer contributed to any alleged pulmonary injury allegedly suffered by the Plaintiff.

Accordingly, summary judgment was granted.

Anyone desiring a copy of this Opinion by Judge Nealon in the case of Mullin may contact me at dancummins@comcast.net.

Pa.R.C.P. 1042.72 Rescinded

Yesterday, October 17, 2012, the Pennsylvania Supreme Court issued an Order rescinding Pa.R.C.P. 1042.72, effective immediately.  That Rule of Civil Procedure was entitled "Medical Professional Liability Actions.  Motions for Post-Trial Relief.  Excessive Damage Award for Noneconomic Loss."

To read the Supreme Court's Order and see the rescinded Rule, click the following links:

http://www.pacourts.us/OpPosting/Supreme/out/567civ.pdf

http://www.pacourts.us/OpPosting/Supreme/out/567civ.attach.pdf

Courts Continue to Refuse to Look Into Crystal Ball in Terms of Future Medical Expenses Awards

In the recent Lehigh County Court of Common Pleas case of Knauss v. Deery, No. 2010 - Civil - 1619 (C.P. Lehigh Co. June 7, 2012 Johnson, J.), Judge J. Brian Johnson addressed a Defendant's post-trial motion which, in part, sought to reduce a Plaintiff's future medical expenses recovery under the provisions of Pennsylvania's Motor Vehicle Financial Responsibility Law.

The Knauss case was a third party lawsuit arising out of a motor vehicle accident that occurred while the Plaintiff was within the scope and course of her employment.  After the Plaintiff obtained a verdict that included $28,000 in future medical expenses, the Defendant filed a post-trial motion to mold that portion of the verdict to zero.

The Defendant argued that although the Plaintiff's employer's worker's compensation insurance carrier most likely would be responsible for any future medical expenses allegedly related to the accident at issue, and thus, Plaintiff would be entitled to recover the same during trial as there would be a lien, if the worker's compensation insurance carrier should deny the claim at some point in the future, the future medical bills would be paid for, and or be payable by, Plaintiff's first party medical insurance benefits, which were $100,000.00 and which were not exhausted.

The trial court rejected this "speculation" that the worker's compensation carrier might stop paying medical benefits in the future and allowed the future medical expenses award to stand.  Anyone desiring a copy of this Knauss v. Deery decision may click this LINK.

I note that the court's rejection of this argument by the Defendant is similar to other courts' rejections of the speculative arguments by Plaintiffs that their future medical expenses awards should not be reduced by the amount of the remaining PIP benefits available under a Plaintiff's own automobile insurance carrier on account that that insurance company could go out of business in the future or may otherwise refuse to continue to pay such benefits.  For other Tort Talk posts on this future medical expenses issue click HERE.

I send thanks to the prevailing Plaintiff's attorney Jeremy D. Puglia of the Doylestown, PA law office of Drake, Hileman & Davis, P.C. for bringing this case to my attention.

Commonwealth Court Addresses Zero Verdict Law in Unpublished Decision

Tort Talkers may recall that the trial court opinion in the case of Anastasi v. Old Forge was previously highlighted here in which the trial court denied a motion for a new trial in a case where there was a 50-50 finding by the jury on the liability issue in a trip and fall case but in which the jury did not enter any award in favor of the Plaintiff on the damages issues.  The trial court denied the post-trial request by the Plaintiff for a new trial on the issue of damages only based upon an allegedly improper zero verdict under the circumstances.

It has been brought to my attention that the Commonwealth Court, in a 2-1 unpublished memorandum opinion has referred that case back for a new trial.  See Anastasi v. Old Forge Borough, No. 1327 C.D. 2011 (Pa.Cmwlth. May 18, 2012 Leadbetter, Brobson, Oler, JJ.)(Majority Op. by Brobson, J.)(Dissent without Op. by Leadbetter, J.). 

The appellate court noted that the main injury, an Achilles' tendon tear, is commonly known as a painful injury and the court also emphasized that while the extent of injury sustained was contested by the defense at trial, there was no dispute that the type of injury occurred as a result of the incident.  The appellate court stated that, since the jury also found in favor of the Plaintiff on the causation issue, the zero verdict on damages could not stand under this scenario.  As such, the case was remanded for a new trial.

Anyone desiring a copy of the Commonwealth's Courts' recitation of the current status of the applicable law on zero verdict issue in its unpublished Anastasi decision may contact me at dancummins@comcast.net.

Plaintiff's Act of Permitting Unauthorized Person to Drive Results in Plaintiff's Vicarious Liability for Own Injuries

In its recent opinion in the case of Price v. Leibfried, No. 332 MDA 2011 (Pa. Super. Dec. 21, 2011 Gantman, Lazarus, and Olson, JJ.) (Opinion by Lazarus, J.), the Pennsylvania Superior Court addressed 75 Pa. C.S.A. §1574 which pertains to permitting unauthorized person to drive in the context of an auto accident litigation.

In this case, the evidence before the court confirmed that this matter involved a two car motor vehicle accident. The Plaintiff was a passenger in her own motor vehicle, which rear-ended a tractor trailer. The Plaintiff’s vehicle was being operated by her friend at the time of the accident  The Plaintiff named the friend as one of the defendants in the lawsuit.

Prior to the accident, the Plaintiff and her friend had been drinking alcohol throughout the evening.

In her Complaint, the Plaintiff alleged negligence against her friend and also sued a local tavern under the Dram Shop Act.

At the close of discovery, the Defendant driver filed a Motion for Summary Judgment asserting that the Plaintiff was vicariously liable for her own injuries and cited to 75 Pa. C.S.A. §1574 (Permitting Unauthorized Person to Drive).

In its opinion, the Pennsylvania Superior Court affirmed the trial court finding that there was no genuine issue of material fact that the Plaintiff knew, prior to the accident, that the Defendant driver did not have a valid driver’s license on the night of the accident.  There was no issue of fact that the Plaintiff also knew that the Defendant driver had been drinking beer and hard liquor on the night in question.

Based on these facts, the Superior Court agreed with the trial court decision that, as a matter of law, the Plaintiff was therefore vicariously liable for the Defendant driver’s negligence in the operation of the Plaintiff's vehicle pursuant to 75 Pa. C.S.A. §1574, as interpreted under the case of Terwilliger v. Kitchen, 781 A.2d 1201, 1206 (Pa. Super. 2001).

The Superior Court agreed that no reasonable minds could differ on a conclusion that the facts established that the Plaintiff had knowledge that the Defendant driver was not a licensed driver and that, despite this knowledge, the Plaintiff still authorized or permitted the Defendant driver to drive her vehicle. Since the Plaintiff therefore violated §1574 of the Motor Vehicle Code by allowing an unauthorized person to operate her vehicle, the court agreed that the Plaintiff was vicariously liable for the Defendant driver’s negligence.

The court went on to state that, since the Plaintiff was vicariously liable for the Defendant driver’s actions, she could not recover damages from that Defendant.

In so ruling, the court allowed the remaining claim by the Plaintiff against the Defendant tavern to proceed to trial where an apportionment of the percentage of liability between the Defendant driver and the tavern would be left for the jury to decide.  Based upon this ruling, however, the Plaintiff would not be permitted to recover against the Defendant driver on any verdict entered against that particular defendant.

Anyone desiring a copy of this opinion may contact me at dancummins@comcast.net.

$2.7 Million Dollar Settlement in Federal Middle District Court ATV Crash Case

It was reported in today's Times-Tribune in Scranton by reporter Joe McDonald that the Foley Law Firm secured a $2.7 million dollar settlement on behalf of their client in a fatal ATV crash case.  The 19 year old decedent was a passenger on an ATV driven by an allegedly intoxicated driver during the July 4th weekend in 2009.

Here is a link to the article:  http://thetimes-tribune.com/fatal-atv-crash-suit-settled-for-2-7-million-1.1256877#axzz1jLTK4jGZ

Auto Law Medical Expenses Case of Note Out of Middle District Federal Court

Judge Connor in the Middle District of Pennsylvania recently issued an detailed Order regarding a Motion in Limine on a medical expenses issue in Bieber v. Nace, 2011 WL 6180719 (M.D.Pa. Dec. 13, 2011). 

This mattter arose out of a motor vehicle accident. The Defendants filed affirmative defenses in their Federal Court response to the Complaint in which they asserted that the Plaintiffs' recovery was reduced or barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). 

The Plaintiffs filed a pre-trial motion in limine arguing that these defenses should be stricken since the medical bills were paid by a self-funded ERISA plan which was making a claim for reimbursement.  The Plaintiffs produced evidence to support their contentions in this regard.

Judge Connor reviewed the pertinent statutes and case law and finds that the MVFRL cannot serve to reduce or bar the plaintiff's recovery of medical expenses paid for by ERISA.  As such, the court granted the Motion in Limine.

Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”).  The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).

The above rules constitute three distinct variations of NIED claims.  Now, with Toney v. Chester County Hospital, comes a fourth variation.

In Toney, the Court granted an appeal  to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal.  Unfortunately, the Plaintiff's child was later born with several profound abnormalities.  The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.

The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted.  The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint;  the Superior Court reversed the trial court).

After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."

More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."

In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."

The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."

Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice.  As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.

That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.

The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.


To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.


To read Justice Todd's concurring Opinion in support of affirmance, click here.


To read Chief Justice Castille's Opinion in support of reversal, click here.


To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.


I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.

Pennsylvania Supreme Court Decides Important Property Damage Subrogation Issue

In what they termed a case of first impression, the Pennsylvania Supreme Court issued a decison on December 21, 2011 in the case of Jones v. Nationwide, No. 61 EAP 2010 (Pa. Dec. 21, 2011)(Majority Opinion by Baer, J.)(Eakin, J., concurring), affirming the practice of property damage carriers returning deductibles to insureds on a "pro rata" basis after a subrogation recovery against a third party tortfeasor.

The court rejected the plaintiff insured's contention that this practice violate the "made whole" doctrine which according to the plaintiff required that she receive her whole deductible back.  The Pennsylvania Supreme Court ruled that the "made whole" doctrine did not apply to the collision coverage at issue in this case.  Accordingly, the court dismissed the insured's class action.

The Majority Opinion (Baer, Castille, Saylor, Todd, McCaffery, Orie Melvin, JJ) can be viewed here.

The Concurring Opinion by Justice Eakin, agreeing with the Majority's holding but reaching it on different grounds, can be viewed here.

I send thanks to Attorney Will Sylianteng of the Philadlephia office of Bennett, Bricklin & Saltzburg for bringing this case to my attention.

Pennsylvania Supreme Court Rules on How to Handle Personal Injury Settlement Proceeds in Divorce Action

In the divorce case of Focht v. Focht, 51 MAP 2010 (Pa. Nov. 23, 2011)(Opinion by McCaffery), the Pennsylvania Supreme Court reviewed the proper handling, in a divorce matter, of personal injury settlement proceeds secured by one spouse.

The Supreme Court overruled the Superior Court's finding that, since the parties had separated prior to the settlement of the case, the settlement proceeds should not be considered marital property in the divorce action.

The Supreme Court disagreed and noted that where, as here, a cause of action accrued after the date of marriage and before the date of final separation, then any subsequent settlement proceeds are to be considered marital property subject to equitable distribution, regardless of when the settlement occurred.

Justice McCaffery's Majority Opinion can be viewed here.

Justice Saylor's Concurring Opinion can be viewed here.


I send thanks to Attorney Walt McClatchy of the Philadelphia law firm of McClatchy and Associates for bringing this case to my attention.  I also note as a source the "Case Digests" of the December 6, 2011 edition of The Pennsylvania Law Weekly.

Important ERISA Reimbursement Decision from Third Circuit

In its recent November 16, 2011 decision in the case of U.S. Airways v. McCutchen, ___ F.3d ___,  2011 WL 5557411 (3d Cir. 2011Sloviter, Fuentes, and Vanaskie, JJ.)(Opinion by Fuentes, J.), the U.S. Court of Appeals for the Third Circuit just held that an insurer is not entitled to 100 percent reimbursement of paid medical expenses when an injured employee has recovered only a fraction of his damages from a third party. 

Commentators have noted that, with this decision, the Third Circuit became the first court in the country to place clear limits on employer-based insurers' ability to recover medical expenses from injury victims.

The plaintiff in U.S. Airways v. McCutchen was a mechanic for U.S. Airways who sustained serious injuries as result of a head-on collision that allegedly left him permanently disabled.

 U.S. Airways' health  insurer paid about $67,000 for the plaintiffs medical expenses.  The plaintiff thereafter recovered only a portion of his total alleged damages from third parties, including the driver who caused the accident.  The health insurer did not make any request for repayment during the pendency of the litigation.

Then a plaintiff's attorney's nightmare came true when the health insurer turned around and sued the injured party for all of the money the health insurer had paid out for the injured party's medical treatment, i.e., the carrier sought an ERISA reimbursement.

U.S. Airways' health insurance plan relied on contract language to argue that it was entitled to all of its money regardless of how much the plaintiff had recovered from third parties.   The health insurance plan refused a request to reduce its claim by the amount of attorney's fees and costs involved.

The Third Circuit rejected the health insurer's position under equitable principles of law and remanded the case back to the Federal District Court level for a further hearing on the appropriate amount of the reimbursement in light of this decision.

The U.S. Airways v. McCutchen decision can be viewed at this link:

 http://www.ca3.uscourts.gov/opinarch/103836p.pdf


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Attorney Stephen Seach of the Drums, PA law firm of The Law Offices of Stephen Seach for bringing  this case to my attention.

Year End Review Article: GENERAL CIVIL LITIGATION CASES AND TRENDS

Below is a copy of my year end review article on general civil litigation cases and trends over the past year of 2011.  This article was published in this week's Pennsylvania Law Weekly.

Over the next month or so, I will share my year end articles reviewing the important cases and trends in the Auto Law context and the Bad Faith context.


Rule Changes Alter State Civil Litigation Landscape

by
Daniel E. Cummins


Pennsylvania Law Weekly


November 15, 2011

In civil litigation, this has been a year of big changes and shifts in how personal injury matters are to be played out in Pennsylvania courts. A seismic shift in the state's civil litigation landscape was felt on June 28 when state Gov. Tom Corbett signed into law the Fair Share Act, drastically changing the joint and several liability of defendants in civil litigation matters.

Another important rule change for state civil litigation matters came when the state Supreme Court passed amendments Pa.R.C.P. 212.3, 212.5 and 212.6, pertaining to pre-trial conferences and settlement conferences. There have also been some major substantive changes in Pennsylvania civil litigation law.

Under the prior joint and several liability law, a defendant who was found responsible for only one percent of the liability for an injury or economic loss could be required to pay the entire 100 percent of the damages owed to the injured party.

Under the Fair Share Act, Pennsylvania now joins about 40 other states that require defendants in personal injury matters to pay only the proportion of the degree of fault assessed to them by a jury. For example, if a defendant is found 25 percent liable by a jury, that defendant is only required to pay 25 percent of the verdict, i.e., his or her "fair share" of the damages.

Note that this new law applies to causes of action that "accrue on or after the effective date," — June 28, 2011. As such, all causes of action arising before this date will still proceed under the old joint and several liability rule.

Pennsylvania's Fair Share Act also provides, with certain limited exceptions, where the defendant's liability for the damage or loss is assessed by a jury at 60 percent or more, that defendant can still be held jointly liable, i.e. responsible for the full amount of damages regardless of their percentage of fault.

Of note in the January rule changes to pretrial and settlement conferences is the new provision to Rule 212.3 that provides that "[a] court may require, pursuant to a court order, various parties to attend a pretrial conference, including an insurance or similar representative, who has authority to negotiate and settle the case."

The rule goes on to state that, if the pretrial conference is set up without any court order regarding the attendance of an insurance representative with settlement authority, such a person is still required by the terms of the rule to attend the conference in person "or be promptly available by phone."

The 3rd Circuit Applies Third Restatement of Torts to Products Cases


On July 12, the 3rd U.S. Circuit Court of Appeals issued an important decision in the products liability case of Covel v. Bell Sports Inc. In Covel, the 3rd Circuit affirmed the U.S. Eastern District Court's application of the Third Restatement of Torts and negligence concepts to claims of injuries allegedly caused by a defective product.

In so ruling the court reaffirmed its prediction from the case of Berrier v. Simplicity Manufacturing Inc., that, if faced with the issue, the Pennsylvania Supreme Court would move to applying the Third Restatement's standards in products liability cases as opposed to continuing with the current utilization of strict liability standards set forth in Section 402A of the Restatement (Second) of Torts (1965) .

It therefore appears that, by virtue of this opinion, until the Pennsylvania Supreme Court holds otherwise, the Third Restatement 's "reasonableness"-based form of strict liability will be utilized in federal courts applying Pennsylvania law as opposed to the strict liability theory of law espoused by the Restatement (Second) of Torts.

Under the old restatement, defendants in products liability cases could be held strictly liable to parties injured by unreasonably dangerous products, even if the defendant exercised reasonable care in the manufacturing, distribution or sale of the product. Under that analysis, negligence principles (duty of care, breach of standard of care, causation) do not come into play. Usually, the plaintiff includes a separate and distinct negligence claim in the complaint against the defendants.

Under the Third Restatement , defective products are defined under standards that incorporate negligence concepts such as foreseeable risk and care into the definition of defective.

This change basically means that a risk-utility balancing test, which is a negligence concept, would be utilized in the determination of whether or not a product is defective. Under this new analysis, defendants in products liability cases will not be strictly liable for defective products regardless of fault; rather, the liability test will be less stringent, which is a change in the law that favors the defense in these types of cases.

As noted, this decision currently only applies to Pennsylvania federal court matters. It remains to be seen how the Pennsylvania Supreme Court will address the issue if faced with it in the future.

Error of Judgment Defense Banned in Medical Malpractice Cases

The Pennsylvania Superior Court recently ruled in the medical malpractice case of Passarello v. Grumbine that its earlier ruling banning medical malpractice defendants from relying on an "error in judgment" defense at trial can be applied retroactively in certain cases.

Under the "error in judgment" defense, the courts would instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

The prior Superior Court decision in which this defense was first found to be invalid was the Superior Court case of Pringle v. Rappaport. In that case, the Superior Court reviewed the history of the error in judgment rule and held that it was no longer valid in Pennsylvania due to its inconsistency with the "standard of care" analysis utilized in medical malpractice cases.

In the more recent decision of Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively but only in those cases where the final judgment of the verdict had not been entered before the 2009 filing date of the Pringle decision. The Passarello court noted in its opinion that it felt that the number of prior cases that may arise as a result of this retroactive application of the rule of law would be limited and not open the floodgates to numerous new appeals.

Medicare/Medicaid Liens and Settlements

Another recent trend in civil litigation matters is the increasing concern of addressing Medicare liens asserted by the federal government against personal injury settlements and verdicts.

Late last year, in the case of Zaleppa v. Seiwell, the Superior Court upheld a plaintiff's argument that a defendant's statutory obligation to reimburse Medicare was separate and distinct from Medicare's statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payer Act "expressly authorizes a primary plan to assert Medicare's right to reimbursement as a pre-emptive means of guarding against its own risk of liability."

In other words, defendants and liability carriers in personal injury matters did not have a right to demand that certain steps be taken by a plaintiff to ensure that a Medicare lien was satisfied out of the monies paid to the plaintiff. Rather, the Medicare Secondary Payer Act expressly provides that only the U.S. government, and not any private entity, such as a tortfeasor defendant or liability insurance company, may pursue the rights of the government in this regard.

Since the issuance of the Zaleppa, a few trial court decisions have come down over the past year expanding on this issue.

In both the Cambria County case of Vincent v. Buck, and the Monroe County case of Dailey-Console v. Barnwell, the trial court judges relied upon the Zaleppa case to support a granting of a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved. In both decisions, the trial courts emphasized that there was nothing in the releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure that the Medicare lien was addressed prior to the issuance of the settlement check.

Pursuit of Dept. of Public Welfare Liens Upheld

While the issues pertaining to Medicare liens and settlements were clarified in 2011, longstanding procedures regarding the recovery of Pennsylvania Department of Public Welfare Medicaid liens were upheld as valid by the 3rd Circuit U.S. Court of Appeals in June. The decision came in a 59-page opinion in Tristani v. Richman.

The 3rd Circuit noted that the U.S. Supreme Court, in the case of Arkansas Department of Health and Human Services v. Ahlborn, assumed, without deciding, that such liens, when limited to the portion of a settlement or judgment constituting reimbursement for medical costs are an implied exception to the federal law that prohibits states from imposing liens on the property of Medicaid beneficiaries.

The 3rd Circuit in the Tristani case was tasked with the job of deciding "whether these liens in fact constitute such an exception." More specifically, the issue for the court to decide was "whether state agencies responsible for administering the Medicaid program have the authority to assert such liens and, if so, whether Pennsylvania's statutory framework is consistent with the Supreme Court's decision in Ahlborn."

The ultimate decision in Tristani was that its "examination of the text, structure, history and purpose of the Social Security Act leads [the 3rd U.S. Circuit Court of Appeals] to conclude that liens limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the act." Accordingly, court upheld Pennsylvania's longstanding practice of allowing for such Medicaid liens to be recovered by the Pennsylvania Department of Public Welfare in civil litigation matters.

Social Media Discovery

Another emerging trend in Pennsylvania personal injury matters is increasing litigation over the extent to which one party may gain access to information on an opposing party's social networking sites such as Facebook or MySpace. The trend of the initial trial court decisions in this regard has been to allow such discovery.

One of the initial, if not the first, decisions handed down on this issue came back in September 2010 when President Judge John H. Foradora of the Jefferson County Common Pleas Court ruled in McMillen v. Hummingbird Speedway Inc. that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defense in order that the information may be accessed.

The McMillen decision was followed by Northumberland County case Zimmerman v. Weis Markets Inc. Common Pleas Court Judge Charles H. Saylor wrote, "This court agrees with the rationale of the opinion in McMillen, authorizing access for the reasons that no privilege exists in Pennsylvania for information posted in the nonpublic sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal."

A similar ruling was also handed down by the U.S. District Court for the Middle District of Pennsylvania in the case of Offenback v. L.M. Bowman Inc. In Offenback, Magistrate Judge Martin C. Carlson granted the defendant's request for access to the plaintiff's Facebook page under Fed.R.C.P. 26(b)(1). The court conducted an in camera review of the plaintiff's Facebook page as part of the court's analysis and found that the information contained on the site should be indeed discoverable as relevant to an evaluation of the plaintiff's damages claims.

One contrary trial court decision in this area was handed down in Bucks County case Piccolo v. Paterson. In a one paragraph order, the court denied a defendant's motion to compel the plaintiff to allow the defense access to the plaintiff's Facebook page.

At issue in the Piccolo case was a scarring injury. Prior to the defendant's request for access to the plaintiff's Facebook page, the plaintiff had already provided the defense with a great number of photographs pertaining to the scarring injury claim. The court apparently found that the defendant's desire to access even more photos of the plaintiff on her Facebook page was cumulative and unnecessary.

Authentication of Text Messages At Trial

Sometimes, updates to the practice of civil litigation law can come from criminal court decisions. Such was the case with the recent criminal court appellate decision, Commonwealth v. Koch, described as a case of first impression. In Koch, the Superior Court ruled that text messages were not admissible in court unless they were properly authenticated.

In Koch, a criminal defendant's cellphone had been seized by the police during a search warrant. The text messages discovered on the phone were transcribed, offered at trial by the prosecutor and allowed into evidence by the trial court judge over the defendant's objections.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.

In the decision, the court noted that "electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated."

Pointing to the rules of evidence on the proper authentication of evidence at trial, Pa.R.E. 901-902, the Superior Court held that there must at least be "[c]ircumstantial evidence, which tends to corroborate the identity of the sender," of the text message before that evidence may be considered authenticated and admitted.

This emerging authentication issue could obviously also come into play in civil litigation matters with respect to authenticating text messages offered into evidence. Such authentication will also likely be required for Twitter postings and e-mails as well as evidence in the form of the commentary and photos found on social media sites such as Facebook, MySpace, LinkedIn and Google Plus, to name a few.

The Future of Expert Discovery

Revisions to Rule 26 of the Federal Rules of Civil Procedure took effect on Dec. 1, 2010, resulting in a significant change in the long-standing Federal Court procedure regarding the discovery of expert witness reports.

Relying upon the work-product doctrine, Rule 26 now no longer requires full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the rule's last revision back in 1993. Still permitted is the full discovery of the expert's final opinion and of the facts or data used to support the opinions.

Both the plaintiff's bar and the defense bar are keeping an eye on a highly anticipated decision by the Superior Court on the same issue in the case of Barrick v. Holy Spirit Hospital. That case revolves around the all-important issue of whether one party is entitled to discovery of correspondence written by opposing counsel to the opposing party's expert for trial.

The trial court originally ruled that such communications by the plaintiff's attorney to the plaintiff's expert were discoverable. On appeal, the original Superior Court panel affirmed.

Thereafter, the Superior Court granted the plaintiff's motion for reargument before an en banc panel and, in doing so, withdrew the Superior Court's affirming decision.

On April 5, the en banc panel heard reargument of the Barrick case and the case has remained under advisement ever since. For full disclosure purposes, I note that I assisted the defense in this matter by way of an amicus brief sponsored by the Pennsylvania Defense Institute.

The court's decision in Barrick will serve clarify the interplay between Pa.R.C.P. 4003.3 and 4003.5 — the balance between the protections of the attorney work product doctrine and the discoverability of the bases for an expert's opinion could have a major impact in how litigating attorneys communicate with their respective experts during the course of a lawsuit.

It is also noted that, earlier this year, the Pennsylvania Supreme Court Civil Procedural Rules Committee published a draft of its Proposed Recommendation No. 248, seeking to amend Pa.R.C.P. 4003.5, which pertains to expert discovery.

This proposed recommendation intends to bring state court practice more in line with new federal practice noted above. Significantly, it expressly prohibits the discovery of any kind of communications between any attorney and his or her expert.

It remains to be seen whether this issue of expert discovery will be resolved by way of the Barrick decision or a revision to the Rules of Civil Procedure or a combination of both. •

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

Pennsylvania Supreme Court to Address Delay Damages Issue From Post-Koken Case

Tort Talkers may recall that I previously reported on the Pennsylvania Superior Court decision in the post-Koken case of Marlette v. State Farm Mut. Automobile Ins. Co. and Jordan in which the issue was whether the delay damages calculation should be based upon the higher jury verdict or the lower figure that resulted after the verdict was molded down by the court to the amount of the available UIM limits.  That post can be viewed here.

In this case, the jury entered an award of $550,000 in favor of the injured party plaintiff and $150,000 in favor of the plaintiff's spouse on the loss of consortium claim.  In a post-verdict ruling the trial court molded the award downward to the available UIM policy limits of $250,000.

The Allegheny County trial court had also molded the verdict downward even further to $233,306.98, reflecting a credit due to State Farm by virtue of a previous payment made by the carrier in the amount of $16,693.02.


The plaintiffs requested delay damages on the $550,000 portion of the jury's verdict (the parties agreed that delay damages are not permitted with respect to loss of consortium claims under Pennsylvania law).  State Farm argued that the plaintiffs were not entitled to any delay damages because State Farm was only responsible to pay up to the UIM limits under the provision of the policy.

The trial court disagreed with both parties and awarded delay damages on the reduced figure of $233,30698.  The delay damages that were awarded did push the final verdict amount up to a number that was above the $250,000 UIM policy limits number.

On appeal, the Pennsylvania Superior Court held that the delay damages should have been calculated on the jury's verdict amount, i.e., $550,000.  The appellate court also ruled that the Plaintiffs could recover monies from the carrier over and above the UIM policy limits number.

The Superior Court's decision in Marlette v. State Farm and Jordan may be viewed online by clicking this link:


http://www.aopc.org/OpPosting/Superior/out/A36031_09.pdf



Now, under an Order dated November 7, 2011, the Pennsylvania Supreme Court has agreed to accept the appeal and will decide this issue after oral argument which still remains to be scheduled.  I will keep an eye out on this important case and will post any updates I come across.

Source:  "Justices Take Up Case on Molded Verdict Delay Damages" by Gina Passarella Pennsylvania Law Weekly (34 PLW 1043)(Nov. 15, 2011).

Eastern District Federal Court Rules that Delay Damages are Recoverable Under UIM Policy

I have previously reported on how the courts have grappled with the issue of how to handle delay damages in post-Koken cases.

Almost a year ago, in December of 2010, the Pennsylvania Superior Court ruled (1) that delay damages should be calculated based upon the jury’s full verdict, as opposed to the molded downward amount after the application of credits due to the UIM carrier, and (2) that a Plaintiff could recover delay damages against a UIM carrier, even if the addition of the delay damages brought the verdict amount to a number higher than the available policy limits. See Marlette v. State Farm and Jordan, 10 A.3d 347 (Pa.Super. Dec. 10, 2010, Musmanno, Bender, Bowes, J.J.)(Opinion by Musmanno, J.).

Click here to view the Tort Talk post on the Marlette v. State Farm case.

This issue of delay damages in post-Koken cases was recently addressed again by the Federal District Court for the Eastern District of Pennsylvania in the case of Heebner v. Nationwide Ins. Enterprise, No. 10-2381 (E.D. Pa. Sept. 28, 2011).

In Heebner, the court reviewed the question of whether delay damages are to be included as a component of the compensatory damages to be paid under a UIM insurance policy.

The plaintiff in Heebner secured a verdict of $85,000.00. Delay damages in the amount of $48,201.96 were tacked on, resulting in a total award of $133,201.96. Nationwide paid the $85,000 under the terms of plaintiff's policy but refused to pay the delay damages under an argument that that delay damages were not damages for which it was liable under the terms of its UM/UIM policy.
After finding that delay damages were "merely an extension of the compensatory damages necessary to make a plaintiff whole" Judge Goldberg of the Eastern District ruled that Nationwide was required to pay the full amount of the award, delay damages and all.

In so ruling, the court noted that the Nationwide policy was ambiguous in its failure to fully define the term “compensatory damages.” Citing Pennsylvania Supreme Court cases from the 1980’s, it was also noted that delay damages are generally considered under Pennsylvania law to be a part of compensatory damages in any event. The Heebner court did not cite to the Marlette v. State Farm decision noted above.

Judge Goldberg concluded his Opinion by finding that Nationwide did not act in bad faith by taking the position it did on the delay damages issue. The court noted that neither party cited any case on point so as to render Nationwide’s position so unreasonable at the time as to constitute bad faith.


Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.



Source of image:


Image: digitalart / FreeDigitalPhotos.net