Plaintiff Wins Denial of Summary Judgment Motion Without Even Filing a Response

 

In the case of Dunkel v. Dallago, No. S-1335-CV-2022 (C.P. Schuly. Co. Sept. 5, 2025 Burke, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case in which the Defendant asserted that it should be granted summary judgment in light of the Plaintiff’s failure to produce any expert medical testimony on the issues of causation.  

The Plaintiff, who was represented by counsel, failed to file any response whatsoever to the Motion for Summary Judgment. The court still denied the Motion for Summary Judgment after finding that it had the discretion to excuse this failure and otherwise rule upon the Motion.

According to the Opinion, this matter arose out of a motor vehicle accident as a result of which the Plaintiff alleged personal injuries.

Relative to the defense argument that it was entitled to judgment as a matter of law given the Plaintiff’s failure to produce expert medical testimony to support the Plaintiff’s burden of proof on causation, the court referenced the exception to the law generally requiring such expert testimony. The court noted that, under that exception, where there is an obvious causal relationship between an accident and an injury, the requirement of expert testimony may be excused. The court noted that an obvious causal relationship can be found to exist where the injuries are either an “immediate and direct” or the “natural and probable” of the alleged negligent act.

The court found that there remained factual issues in this regard supported the court's denial of the request for the entry of summary judgment.

Although the Plaintiff never filed a Response to the Motion, the court also went on to note that there were other genuine issues of material fact presented in the case.  The court noted that the Plaintiff claimed that the Defendant was negligent and the Defendant not only denied negligence in its pleadings but also asserted contributory negligence against the Plaintiff. The court also noted sua sponte that there were other issues likely to be raised at the time of trial, including the speed of the Defendant’s vehicle, whether the Defendant was distracted at the time of the accident, and whether the Defendant pled guilty to any criminal charges in connection with the accident.

Anyone wishing to review a copy of the Court’s Opinion granting summary judgment in favor of a Plaintiff who did not file any Response to the Motion may click this LINK.

Source of image:  www.urbandictionary.com.

Third Circuit Addresses Issues As To When Expert Testimony Is Required in Gun Discharge Case

In the case of Slatowski v. Sig Sauer, Inc., No. 24-1639 (3d Cir. Aug. 1, 2025 Krause, J., Bibas, J., and Montgomery-Reeves, J.) (Op. by Bibas, J.), the court affirmed the district court exclusion of the Plaintiff’s expert witnesses on the issue of causation but reversed the trial court’s entry of summary judgment in a case involving a federal immigration agent who was injured when he went to grab a gun from his holster and the gun fired a bullet into his hip and thigh.

The appellate court ruled that the trial court had properly excluded the Plaintiff’s expert testimony about what caused the gun to fire accidentally.

However, the court overruled the district court’s entry of summary judgment which was based on the district court’s finding that the Plaintiff could not proceed to a jury without expert testimony.

The appellate court noted that, given the other admissible evidence in the case, a jury would be able to determine what caused the gun to fire. As such, the entry of summary judgment was overruled.

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


Source: Article – “Lack of Causation Experts Does Not Knock Out Plaintiff’s Defective Gun Design Claims, 3rd Circuit Rules,” By Aleeza Furman The Legal Intelligencer (August 1, 2025).

Court Rules That Expert Testimony Not Required To Establish Defendant's Duty to Provide a Safe Workplace

In the case of Chirdon v. 3M Company, Inc., No. G.D. 22-16244 (C.P. Allegh. Co. March 24, 2025 Kline, J.), the trial court denied the Defendant’s post-trial motions in an alleged unsafe workplace trial involving allegations of asbestos exposure to a boilermaker.

According to the Opinion, the jury awarded $2.3 million dollars in compensatory damages and $1.5 million dollars in punitive damages against the Defendant employer.

In this Rule 1925 Opinion, by the trial court, the court addressed defenses raised with regard to statute of repose, the method in which the concept of outrageous conduct may be admitted into evidence at trial, issues regarding the bifurcation of the liability and punitive damages phases of the trial and challenges by the defense to the Plaintiff’s failure to utilize an expert to explain OSHA violations.

Notably the trial court rule that expert testimony was not required to establish the Defendant's duty to provide a safe workplace.  Rather, the court ruled that the duty to provide a safe workplace, as well as the applicable OSHA regulations were within the understanding of ordinary jurors.

Overall, the trial court ruled that the Defendant failed to meet the standard of review for a judgment notwithstanding the verdict or for a new trial.  As such, the Defendant's post-trial motions were denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken Behrend of the Behrend Law Group, LLC located in Pittsburgh, Pennsylvania for bringing this case to my attention.

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

Superior Court Overturns Med Mal Defense Verdict Based on Erroneous Evidentiary Rulings by Trial Court

In the case of Hagelauer v. Mainline Emergency Medicine Associates, LLC, No. 2064 EDA 2024 (Pa. Super. June 2, 2025 Panella, P.J.E., Beck, J., and Ford Elliot, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court addressed various issues raised following the entry of a defense verdict in a medical malpractice case.

According to the Opinion, the allegations pertained to the treatment, or lack thereof, relative to a deceased Plaintiff who suffered cardiac arrest.

The Pennsylvania Superior Court overruled the defense verdict based upon a finding, in part, that the trial court had improperly barred the Plaintiffs from cross-examining the Defendants’ expert about an article that the expert had authored which conflicted with his trial testimony.

The Superior Court noted that an expert's authoring of an article and including a reference to the article in his CV constituted an adoption of the information contained in the article by that expert. The appellate court found that it was not credible that an expert would author an article that she or he did not adopt and support.

As such, the preclusion by the trial court of the cross-examination of the Defendant's expert on that article was found to be reversible error as the Superior Court ruled that the jury missed out on important information that might have colored its evaluation of that expert’s credibility.

The Superior otherwise addressed a separate issue of hearsay within hearsay that arose during the course of the trial.

The appellate court noted that it was not an abuse of discretion by the trial court to have excluded a note written by the Plaintiff as inadmissible double hearsay.

The note at issue included a compound statement referred not only to the Plaintiff's state of mind, but also referenced medical instructions.

While the portion of the statement that referenced the Plaintiff's state of mind may have been admissible under Pa.R.E. 803(3)'s hearsay exception related to a declarant's statement of their then-existing state of mind or condition, here, the court noted that compound statements such as the one at issue were not admissible.

Rather, the court noted that, given the existence of hearsay within hearsay, the trial court properly excluded the evidence.

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


Source: “Bad Evidentiary Ruling In Med Mal Trial Spurs Pa. Appeals Court To Toss Hospital’s Defense Verdict,” By Aleeza Furman of The Legal Intelligencer (June 4, 2025).

Soure of image: Photo by Katrin Bolovtsova on www.pexels.com.

Trial Court Addresses Use of Hearsay Evidence During a Medical Malpractice Trial

In the case of Koesterer v. Thomas Jeffersons Univ. Hosp., Feb. Term 2021, No. 01051 (C.P. Phila. Co. Feb. 13, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in a medical malpractice case and held, in part, that a judgment in favor of the Plaintiff should be affirmed given that the medical malpractice Defendant did not suffer any prejudice to the point of warranting a new trial where the Plaintiff’s attorney was permitted to briefly cross-examine a Defendant physician with the expert opinions of the Plaintiff’s non-testifying expert in violation of the hearsay rule.

According to the Opinion, the Plaintiff sued the medical Defendants for professional liability after the Plaintiff’s mother died allegedly as a result of a pulmonary embolism after hip surgery.

At trial, the Plaintiff’s attorney was permitted, over the Defendants’ hearsay objection, to cross-examine a Defendant doctor and the Defendant doctor’s expert with the expert opinions issued by one of the Plaintiff’s non-testifying expert.

In this regard, the trial court pointed out that, immediately before the questioning at issue, the Defendant physician testified that there was a disagreement in the field of medicine regarding the issues raised in the non-testifying expert’s opinion.

Accordingly, the court stated that, while the questioning from the Plaintiff’s attorney briefly drew in an outside hearsay opinion from a non-testifying expert, the trial court found that it was impossible to conclude that the momentary reference would have had an significant impact on the jury’s decision. 

The court also noted that this was essentially the only reference to the opinions of the Plaintiff’s non-testifying expert at trial. Accordingly, in this Rule 1925 Opinion, the trial court asserted that it did not err or abuse its discretion in denying the medical Defendants’ request for a new trial based upon the alleged prejudice in this regard.

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


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

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

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

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

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

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

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

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

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

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


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

Court Addresses Admissibility of Expert Testimony Under the Federal Employer's Liability Act

In the case of Lindsay v. Delaware and Hudson Railway Co., Inc., No. 2019-CV-3949 (C.P. Lacka. Co. March 3, 2025 Nealon, J.), the court addressed a pre-trial Motion In Limine filed by the Defendants seeking to preclude the opinions of a Plaintiff’s medical expert in a personal injury claim arising out of the Federal Employer’s Liability Act. The Defendants contended that the Plaintiff’s medical expert’s causation opinions were inadmissible since they were based upon methodologies that were not generally accepted in the relevant scientific community.

After reviewing the expert’s report and noting that the expert had a section of his report entitled “Methodology” in which the doctor described the methodologies he utilized in formulating his general causation and specific causation opinions, the court denied the Defendant’s Motion In Limine.

The court note that the materials submitted for the court’s review confirm that the Plaintiff’s medical expert based his causation opinions upon his knowledge, experience, and training in internal medicine, oncology, and hematology, the review of the Plaintiff’s medical records and deposition testimony, the Defendant’s discovery responses, other expert reports, along with the application of the generally accepted methodologies for general causation and specific causation.

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

Source of image: Photo by Todd Trapani on www.pexels.com.

Court Addresses Admissibility of Expert Opinions

In the case of Twigg v. Varsity Brands Holding Co., No. 4:23-CV-00067 (M.D. Pa. March 7, 2025 Brann, C.J.), the court provided the latest pronouncement on the Rules of Admissibility for an expert witness under Federal Rule of Evidence 702.

This products liability case arose out of an accident during which a baseball coach was struck by a batted ball that went through an L-screen net while he was pitching batting practice.

In his decision in this case Chief Judge Matthew W. Brann granted in part and denied in part Rule 702 motions regarding experts in the case. In so ruling, the court noted the following principles of law.

An expert’s lack of technical background does not render an expert unqualified where that expert has sufficient practical experience.

The court also ruled that an expert need not have familiarity with a product in order to evaluate the adequacy of a manufacturer’s testing protocols.

The court also noted that an expert may rely solely upon material provided to the expert by counsel. However, that expert is not permitted to rely upon material that has not been disclosed to the opposing party.

The court also reaffirmed the rule that an expert may not testify about matters outside the scope of their opinions.

The court also noted that experts may assume the truth of the contested facts asserted by the parties who hired them. The weight of such opinions depends on how the jury ultimately views the underlying facts.

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


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

Link To Decision Corrected for Yesterday's Post: Court Rules that Plaintiff Can't Wing It In Terms of Expert Testimony

The Link to the court decision in yesterday's post has been fixed.  Sorry about that error.  You can view yesterday's Tort Talk post here at this LINK and click the corrected Link to the case therein.

Thanks for reading Tort Talk.

Court Rules That Plaintiff Can't Wing It In Terms of Expert Testimony

In the case of Boruch v. Catty Corner Neighborhood Pub & Pie, 2025 Pa. D. & C. Dec. Lexis 6 (C.P. Leh. Co. Jan. 2, 2025 Reichley, J.), the court granted summary judgment in an alleged food poisoning case involving Buffalo Wings.

In this case, the court noted that the Plaintiff’s expert’s report only addressed the fact of the happening of the alleged food poisoning and did not contain a causation opinion linking the Plaintiff’s illness to the Plaintiff’s consuming the Defendant’s food.

The court recognized that, absent an obvious causal relationship, a personal injury Plaintiff must have expert testimony to establish causation. 

The court generally agreed that such an obvious relationship can arise from an immediate and direct injury or as a natural probable result following alleged negligence.

However, the court found that becoming ill several hours after consuming food is not such a relationship of cause and effect as noted above. Here, the court noted that the causal connection would require guesswork and/or conjecture on the part of a jury.

Given the failures of the Plaintiff’s expert report, summary judgment was granted.

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 Sergio Arreola on www.pexels.com.

Court Denies Plaintiff's Motion to Preclude Defendant From Utilizing Second Expert After First Expert Died

In the case of Roubert v. Amazon, No. 2:21-CV-03091-CMR (E.D. Pa. Feb. 24, 2025 Rufe, J.), the court addressed issues involving the death of a Defendant’s expert during the course of a personal injury civil litigation matter.

According to the Opinion, when the Defendant’s first medical expert passed away, the Plaintiff filed a Motion In Limine to preclude the medical testimony of the Defendant’s second expert as inadmissible under Federal Rule of Evidence 703 and/or to preclude that second expert from referencing or relying upon the expert report of the first expert.

The court ruled that a deceased physician’s expert opinion was still permitted to be utilized by subsequent experts in their testimony.

The court reasoned that it was common standard and practice for a doctor to review medical records and other reports when rendering their own diagnoses. Accordingly, the court found that it was proper for the Defendant’s new expert to rely upon the deceased expert’s report which was issued after the deceased expert had personally examined the Plaintiff. The court noted that this was proper given that the evaluation of medical records and reports is a liable method for an expert to form an expert opinion regarding a party’s medical condition.

The court also noted that the Plaintiff would not be prejudiced by the second expert’s testimony given that there was nothing improper about a medical report prepared solely for litigation.

The judge additionally confirmed that FRE 703 does not require that a party be able to cross-examine every author of a record upon which the testifying expert relies upon at trial. Any potential prejudice resulting from their new expert testifying regarding the deceased expert’s report could be mitigated by cross-examination of the testifying doctor as to the basis of his opinion, by presenting contrary expert testimony, or by way of the presentation of careful instructions to the jury on the burden of proof.

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


Source: Article – “Fed. Court OKs Use Of Deceased Expert’s Report In Medical Testimony,” by Riley Brennan of the Legal Intelligencer (Feb. 25, 2025).

Superior Court Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 2025).

Federal Court Rules Just Because Experts Agree That There Was An Injury Doesn't Automatically Mean That Causation Has Been Established

In the case of Gross v. Villeneuve, No. 2:23-CV-00705-NBF (W.D. Pa. Jan. 22, 2025 Fischer, S.J.), the court granted the Plaintiff’s Motion for Partial Summary Judgment with respect to a Defendant’s negligence, which had been conceded, but otherwise denied the Plaintiff’s Motion for Summary Judgment in a case involving a motor vehicle accident.

While the court granted the Plaintiff’s Motion for Summary Judgment in terms of the liability issue in this rear-end accident, the court denied the Plaintiff’s argument that, given the Defendant's concession on liability, the Plaintiff was, therefore, entitled to a further concession on the issue of causation relative to the physical injuries and damages alleged by the Plaintiff.

The Plaintiff asserted that he was entitled to summary judgment on the “factual cause” question where both parties’ medical experts attributed some degree of injury to the accident. 

Here, citing to Pennsylvania Superior Court precedent, the federal court ruled that a defense expert’s opinion that a Plaintiff suffered an injury, based on the history given to the expert, is not an uncontroverted admission on the issue of causation by a defendant. 

The court confirmed the well-settled rule that a jury was free to render its own decision on the case presented even where the experts of the parties may agree, to some extent, that the Plaintiff sustained an injury as a result of the accident. 

More specifically, the court reasoned that “[a] medical expert report concluding that, based on the evidence provided (including a Plaintiff’s history and subjective complaints), the ‘mechanism of injury’ and clinical findings were ‘consistent with’ some of the allegedly consequent injuries (i.e., some injury could be resultant from the collision), is simply not a concession. To the contrary, it is an insufficient basis on which to usurp a trial jury’s credibility determinations and broader fact-finding role.” See Op. at 5.

As such, the court denied the Plaintiff’s Motion for Summary Judgment based on the causation issues presented.

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

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

Source of image:  Photo by Nikita Nikitin on www.pexels.com.

Plaintiff Found To Have Offered Sufficient Expert Testimony In Support of a Delayed Cancer Diagnosis

In the case of Delavern v. Health Services of Clarion, Inc., No. 858 WDA 2024 (Pa. Super. Jan. 6, 2025 Bowes, J., Beck, J., and Bender, P.J.E.) (Op. by Bowes, J.), the court affirmed the entry of judgment against a medical malpractice Defendant in which a jury entered an award of $7.3 million dollars. The case involved a medical malpractice action with allegations of a delayed diagnosis.

According to the Opinion, the Plaintiffs had claimed that a physician’s assistant affiliated with a Defendant incorrectly diagnosed the Plaintiff with a separate condition other than the cancer which was later found relative to the patient. The Plaintiffs alleged that the supervising physician signed off the on the physician’s assistant’s notes without properly reviewing them and also failed to refer the Plaintiff for further screening.

The Plaintiffs claimed that the Defendant’s negligence resulted in a 13-month delay in the Plaintiff receiving a cancer diagnosis, which thereby allegedly allowed the cancer to progress from a curable stage to an incurable one.

On appeal, the Pennsylvania Superior Court rejected a Defendant’s argument that the Plaintiffs’ oncology expert failed to show that the Plaintiff experienced a worse health outcome as a result of a delayed cancer diagnosis.

The trial court and the Superior Court both agreed that the Plaintiff’s expert offered sufficient proof of an increased risk of harm caused by the Defendant’s negligence so as to allow the issuance of causation to go to the jury.

Anyone wishing to review this non-precedential decision of the Superior Court may click this
LINK.


Source – Article: “Superior Court Rejects Pa. Hospital’s Challenge to $7.3M Med Mal Judgment,” by Aleeza Furman of The Legal Intelligencer (Jan. 6, 2025).

No Right To a New Trial Found After Trial Court Re-Opened Evidence After First Non-Jury Verdict And Then Entered Identical Second Non-Jury Verdict

In the non-precedential decision in the case of Graffia v. Thomas, No. 1497 WDA 2023 (Pa. Super. Dec. 30, 2024 Murray, J, McLaughlin, J., and King, J.) (Op. by King, J.), the court affirmed a trial court’s verdict in a non-jury case following the entry of a default judgment against the Defendant.

In this non-jury trial matter, the trial court issued a verdict prior to rendering a decision on whether the rebuttal testimony of the Plaintiff’s expert was admissible.

The trial court ultimately found that the rebuttal testimony was admissible.  As such, the trial court vacated its original verdict in order to take all of the evidence into consideration.

The trial court then issued a second verdict that was identical to the first verdict.

The Plaintiff appealed and argued that the trial court did not have the authority to vacate the first verdict after forty-three (43) days. The Plaintiff requested a new trial.

The Superior Court found that the trial court committed harmless error. The court noted that, since all of the evidence was taken into consideration prior to the rendering of the second verdict, the Plaintiff failed to demonstrate any prejudice.

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


I send thanks to Attorney Kasey E. Cahill of the Pittsburgh, PA office of Summers, McDonell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

Court Grants Summary Judgment on Recklessness and Punitive Damages Claims in a Trucking Accident Case

In an Opinion that is tersely worded at times in the case of Medina v. One Stop Center, Inc., No. 2:22-CV-01031-CB (Jan. 2, 2025 Bissoon, J.), the court granted a Defendant’s Motion for Summary Judgment on a claim for punitive damages in a trucking accident case. In so ruling, the court also reject the Plaintiff’s liability expert’s opinion.

As to the Plaintiff’s expert, the court found that the expert’s opinion did not meet the standards required by Federal Rules of Evidence 702. The court additionally faulted the expert for veering into areas reserved for the jury, that is, by offering opinions based on his assessment of the credibility of witnesses and parties.

Overall, reviewing then facts of the case, which involved an accident when the drivers encountered unexpected black ice on the roadway, did not support a finding of reckless indifference on the part of the Defendant driver. Accordingly, the court granted the Motion for Summary Judgment filed by one of the Defendant.

Relative to a separate decision in this Opinion on a Borrowed Servant Doctrine issue raised by a different Defendant, the Court denied that Defendant's Motion for Summary Judgment on that issue   

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

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh, PA law firm of Zimmer Kunz, PLLC, for bringing this case to my attention.

Medical Malpractice Plaintiff Must Show Systemic Negligence to Support a Corporate Negligence Claim in a Med Mal Case

In the non-precedential decision in the case of Wandell v. Robert Packer Hospital, No. 1532 MDA 2023 (Pa. Super. Aug. 7, 2024 Stevens, P.J.E., Olson, J., and Kunselman, J.)(Mem. Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a Defendant hospital in a medical malpractice case.

The Superior Court noted that hospital corporate negligence is limited to instances in which a Plaintiff demonstrates systemic negligence.

The court additionally noted that, except in obvious cases that are within a layperson’s general understanding, a Plaintiff must present expert testimony establishing the generally accepted standard of care in a medical malpractice case along with the healthcare provider’s breach of duty.

More specifically with respect to this case, the court agreed with the trial court that the fact that a nurse left a room during the course of treatment did not automatically establish a hospital’s negligence. The court noted that medical issues regarding the standard of care and whether the nursing staff deviated from the standard of care required expert reports. 

In this case, the court noted that the Plaintiff had failed to offer any expert testimony relative to the applicable standard of care. As such, the entry of summary judgment by the trial court was affirmed.

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

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

Plaintiff's Med Mal Experts Permitted to Testify But Scope of Testimony Somewhat Curtailed

In the case of Rotella v. Community Medical Center, No. 2022-CV-3943 (C.P. Lacka. Co. Sept. 5, 2024 Nealon, J.), the court addressed motions seeking to preclude defense expert witnesses in a medical malpractice case.

According to the Opinion, the Plaintiffs filed a Motion In Limine seeking to preclude the testimony of various expert witnesses for the defense on several grounds.

First, the Plaintiff asserted that the experts do not satisfy the competency requirements as set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa. C.S.A. §1303.512.

The Plaintiffs additionally asserted that the testimony of the multiple defense experts concerning causation was needlessly cumulative.

Third, the Plaintiff asserted that two (2) of the experts discussed irrelevant and unfairly prejudicial information in their Pre-Trial Reports regarding unrelated medical conditions.

After his review of the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that, based upon the expert reports and the CVs submitted, the defense experts at issue were found to possess the necessary qualifications to address the medical causation issues.

Judge Nealon additionally found that the opinions of the various defense experts were from different medical specialties and distinct clinical perspectives and, as such, constituted corroborative, rather than needlessly cumulative evidence.

As to the third issue, Judge Nealon granted the Plaintiff’s Motion In Limine and found that, since the infectious disease care provided to the male Plaintiff was not a subject of the Plaintiffs’ negligence claims, the defense infectious disease expert would be precluded from offering opinions that the infectious disease treatment in the matter complied with the standard of care.

Judge Nealon additionally ruled that, given that the COVID-19 pandemic did not affect the care involved in this case or otherwise impact the applicable standard of care, the defense corporate liability expert would be barred from mentioning “hospitals across the country were be inundated with patients who were victims of the COVID pandemic” at the time of the male Plaintiff’s hospitalization.

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

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

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

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

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

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

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

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

Defendant's Post-Verdict Request for Damages Denied by Court on Basis Of Defense Counsels' Conduct During Trial

In the case of McManus v. Walgreens Co., Inc., No. 2:21-CV-02285-CFK (E.D. Pa. March 11, 2024 Kenney, J.), Judge Chad Kenney of the Eastern District Court of Pennsylvania denied a Defendant’s post-verdict bill of cost, thereby precluding the Defendants from securing more than $130,000.00 in legal fees.

The court rejected the motion after finding that “evasive” conduct by defense counsel, including allegations that defense counsel misled the court during the course of trial, supported the court’s decision.

According to the Opinion, during the trial the defense expert testified about his findings from a site inpsection.  On cross-examination, it was brought to light that the expert had completed the site visit "sub rosa" (meaning 'in secret') during the first week of trial.

According to the Opinion, the court noted that it had later come to the court’s attention, after the entry of a defense verdict, that the Defendants’ expert witnesses had allegedly lied during his trial testimony when he claimed that the defense attorneys were not aware that the expert had performed that additional site visit relative to his expert testimony.   The court admonished the defense attorneys for not correcting this testimony while the expert witness was on the stand at trial.

Relative to the Motion for Costs presented by the Defendants as the prevailing party, the court noted that it was denying this motion given the defense counsel’s conduct in the trial, finding that the defense counsel “were in flagrant disregard for the Federal Rules of Civil Procedure.”

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


I send thanks to Attorney Stephen Scheuerle of the Philadelphia law firm of Hohn & Scheuerle, LLC for bringing this decision to my attention.