Senior Judge Thomson Addresses Spoliation Issue in Lackawanna County Slip and Fall Case

In his July 6, 2011 Opinion and Order in the Lackawanna County slip and fall case of Trently v. Giant Food Stores, LLC, No. 2008-CIV-3961 (Lacka. Co. July 6, 2011 Thomson, S.J.), Senior Judge Harold A. Thomson, Jr. denied the Defendant's Motion for Summary Judgment after finding genuine issues of material fact on the actual or constructive notice issue existed. 

The court also appeared to be influenced in its decision to deny the Defendant's motion given the Plaintiff's assertion of spoliation of evidence on the part of the Defendant given the possible failure of the defense to produce a surveillance videotape of the Plaintiff's incident.

Judge Thomson's Opinion gives a nice recitation of the current status of the law on the duties of store owners to its business invitees along with the standards applicable to actual or constructive notice evidence.

In this case, the Court noted that the Plaintiff allegedly slipped on a puddle of a brown substance that was located on the store's white floor in close proximity to the checkout counters where the store's cashiers were working.  Judge Thomson accepted the Plaintiff's argument that the motion for summary judgment was untimely in that there were still depositions of relevant witnesses to be completed, including the cashiers.  The Plaintiff also asserted that factual issues existed on the notice issue given the number of store employees that were in the vicinity of the fall at the time of the incident.

Judge Thomson also touched upon the law of spoliation and found that additional material factual issues existed in this regard in that there was evidence that the Defendant's store manager first indicated his belief that there was a videotape of the incident that was reviewed, yet later, it was learned that there was no tape in existence.

Based upon all of these issues, the court denied the Defendant store's motion for summary judgment and allowed the case to proceed.

Anyone desiring a copy of this Opinion by Judge Thomson in the case of Trently v. Giant Food Stores, LLC may contact me at dancummins@comcast.net.

I thank the prevailing Plaintiff's attorney, Thomas Holmes, Esquire of Scranton, Pennsylvania for bringing this decision to my attention.


Image from http://www.posigrip.blogspot.com/

Summary Judgment Entered For Landlord in Lackawanna County Trip and Fall Case

Senior Visiting Judge Harold A. Thomson, Jr. sitting in on a Lackawanna County Court of Common Pleas case recently entered a summary judgment in favor of the Defendants in the trip and fall case of Higgins v. Siminski, No. 2006 -CV - 2480 (Lacka. Co. June 8, 2011, Thomson, S.J).

According to the Opinion, the Plaintiff was arrested on the night of the incident for public drunkenness.  After being taken to police headquarters to be issued a citation, the officer(s) transported the Plaintiff home.  The officer(s) assisted the Plaintiff up the outside steps to the second floor door of his apartment.  The Plaintiff fell from the officer's grasp and rolled off second floor landing and hit the asphalt below in a head first fashion.

The Plaintiff claimed that the Defendant landowners/landlords were negligent in their care of the property and breached the implied warranty of habitability.

Judge Thomson found, however, there were no witnesses to the accident, and no expert opinion regarding the condition of the property. Nobody knew exactly how the plaintiff fell, including the plaintiff, because he was in a drunken state when he fell off the second floor of the property.

Because the plaintiff could only speculate as to the cause of the fall, the court reasoned that “there are too many possibilities for explanations in this particular instance, with too much risk of a fact-finder making an assessment of liability on conjecture, rather than fact.”

The court therefore granted summary judgment in favor of the Defendant landowners/landlords on both the negligence and breach of the implied warranty of habitability counts.

The prevailing defense attorney is William Connor, Esq. of the Philadelphia law firm of Christie, Pabarue, Mortenson & Young.  I thank Attorney Matthew Shusterman of the same firm for bringing this case to my attention.

Anyone desiring a copy of Judge Thomson's Opinion in the case of Higgins v. Siminski may contact me at dancummins@comcast.net.

AMICUS CURIAE POSITION ADVOCATED FOR PENNSYLVANIA DEFENSE INSTITUTE PREVAILS AT SUPERIOR COURT LEVEL

I am happy to report that the amicus curiae brief and oral argument I presented on behalf of the Pennsylvania Defense Institute in the case of first impression of Barrick v. Holy Spirit Hospital has prevailed in the Superior Court as confirmed by the Court's Opinion handed down yesterday. The prevailing defense attorney is Attorney Stephanie L. Hersperger of the Harrisburg, PA office of Thomas, Thomas & Hafer.

The appeal involved the novel expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.

This issue was raised through the actions of the Plaintiff's attorney in the matter. The Plaintiff's attorney wrote letters and emails to the Plaintiff's medical provider that admittedly addressed the strategy of how the doctor should frame his expert report. When the defense pursued the production of those letters in discovery by way of a subpoena for the doctor's file, Plaintiff's counsel objected.

The trial court allowed for the discovery, and it was the Plaintiff's attorney who appealed the matter up to the Superior Court.

On September 16, 2010 the Superior Court issued an Opinion affirming the trial court's decision in Barrick v. Holy Spirit Hospital, 2010 Pa.Super. 170 (Pa.Super. Sept. 16, 2010, Musmanno, Lazarus, Olson, J.)(Opinion by Olson, J.).

Noting that it was faced with a case of first impression, the Superior Court rejected the Plaintiff's contention that the letters and emails at issue were protected by the attorney work product doctrine. Rather, the court found that it was "compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications."

In so ruling, the Superior Court adopted a bright line rule in favor of the production of such written communications to a trial expert by counsel. The Court stated that litigants are entitled to discover whether an expert's opinions are his own or a mere parroting of what he or she was told by counsel. The Court further warned that, since the attorney work product doctrine is not an absolute privilege against disclosure, counsel took a risk in communicating as he did with the expert.

It is noted, parenthetically, that the Superior Court favorably pointed to prior trial court decisions on this issue by Lackawanna County Court of Common Pleas Judge Carmen D. Minora in Shambach v. Fike, 82 Pa.D.&C. 4th 535 (Lacka. Co. 2006) and Pike County Court of Common Pleas Judge Harold A. Thomson, Jr. in Pavlak v. Dyer, 59 Pa.D.&C. 4th 353 (Pike Co. 2003).

Obviously, this decision will impact defense counsel and their communications with independent medical examination (IME) experts as well. But seasoned defense counsel have long known to keep such letters neutral with the understanding that they may have to be produced in discovery. Now, with Barrick v. Holy Spirit Hospital, there is no question that plaintiff's counsel will likewise have to produce their correspondence to plaintiff's medical experts for trial as well.

Here's a link to the Superior Court's Opinion in Barrick v. Holy Spirit Hospital:

http://www.aopc.org/OpPosting/Superior/out/a20042_10.pdf


If you have any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.

Lackawanna County Trial Court Decision in Favor of Severance of UIM and Bad Faith Claims

Another post-Koken case involving a bad faith claim has been handed down - - this time in Lackawanna County. On August 18, 2010, visiting Senior Judge Howard A. Thomson, Jr. issued an Order in the case of Smith v. GEICO, No. 10-CIV-2024 (Lacka. Co. Aug, 18, 2010, Thomson, S.J.), sustaining GEICO’s Preliminary Objections to the extent that the bad faith claim contained in the Plaintiff’s Complaint would be severed from the action and the parties would proceed with the claims bifurcated. Although defense counsel also requested a stay of any bad faith discovery, that part of the Defendant’s request was not addressed in the Court Order.

This decision creates an apparent split of authority on the issue in Lackawanna County. A few years ago, in the slightly different scenario presented in the case presented in Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008, Minora, J.), Judge Carmen D. Minora allowed for the consolidation of a bad faith action against UIM carrier with the companion declaratory judgment action regarding coverage.


Anyone desiring a copy of Judge Thomson's Order (without Opinion) may contact me at dancummins@comcast.net.

I send thanks to Attorney Cindie Banks, from the Law Offices of Cynthia E. Banks, GEICO staff counsel, for forwarding this Order to my attention.

Bad Faith Claim Allowed To Proceed in First Party Benefits IME Case

In a recent decision, Judge Harold A. Thomson, Jr., senior judge specially presiding in Lackawanna County, denied a carrier's preliminary objections seeking to preclude a bad faith claim in the automobile insurance first party benefits case of Skiro v. Erie Ins. Exchange, No. 09-CV-7077 (Lacka Co. May 19, 2010 Thomson, S.J.).

In Skiro, Erie had paid first party medical benefits over the first five years following a motor vehicle accident to its insured. The insured exhausted his $100,000 in PIP medical benefits and then began to receive additional benefits under his extra ordinary medical benefits where he had a $1 million dollar policy limit available.

Erie referred its insured for an independent medical examination [IME] pursuant to 75 Pa.C.S. Section 1796 (as opposed to engaging in a peer review under 75 Pa.C.S. Section 1797). The IME doctor found that the insured had reached maximum medical improvement and that the ongoing treatment was not medically reasonable or necessary for the alleged injuries from the subject motor vehicle accident.

Accordingly, Erie stopped the medical benefits payments. The insured responded by suing Erie for breach of contract and bad faith. Erie responded to the Complaint by filing preliminary objections to the Complaint asserting that the bad faith claims brought under the bad faith statute (Section 8371) must be dismissed because the Motor Vehicle Financial Responsibility Law [MVFRL] provided, under 75 Pa.C.S. Section 1798, for the sole remedies available for the denial of benefits pursuant to the mental and physical evaluation process.

Under Section 1798, if it is determined that the carrier acted unreasonably in refusing to pay benefits, the carrier would be compelled to pay the medical expenses, any interest, and a reasonable attorneys fee to the injured party for having to fight the issue [but punitive damages are not provided for]. The Plaintiff apparently pursued a bad faith claim under Section 8371 in part because that statute provides for the additional remedies of additional interest, costs, and punitive damages.

While Erie attempted to analogize the issues presented in this matter involving an IME in the first party context to those peer review cases where it has been held that MVFRL provides the exclusive remedies for first party disputes, the insured countered with the argument that the issue presented under the first party benefits IME scenario had not been definitively decided by the appellate courts.

Judge Thomson issued a one line Order, without an Opinion, on May 19, 2010 overruling Erie's preliminary objections and allowing the bad faith claim to proceed in this context.

I note that Judge Thomson's decision is consistent with a prior decision issued by Judge Carmen Minora also out of Lackawanna County in the case of Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.) [I do not have a copy of this decision--UPDATE (6/13/10) I have now secured a copy of this opinion should anyone need a copy--contact me at dancummins@comcast.net].

In Veltri, Travelers’ decided to terminate first party benefits after a favorable IME pursuant to 75 Pa.C.S. Section 1796. This led to the filing of a breach of contract and bad faith Complaint by the Plaintiff.

Travelers responded with Preliminary Objections to the bad faith count of the Complaint alleging that the general tenants of the bad faith statute at 42 Pa. C.S.A. §8371 are essentially trumped by the specific remedies of the MVFRL found at 75 Pa. C.S.A. §1716 and §1798.

Judge Minora denied Travelers’ Preliminary Objections and rejected the carrier's contention that the rules of statutory construction mandate that the provisions for the nonpayment of first party benefits found under the MVFRL negate or trump the general bad faith statute.

The court in Veltri essentially ruled that where the Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the remedies under the general bad faith statute at §8371 (i.e., punitive damages, costs and interest) may additionally apply as well.

For more info on Judge Minora's decision in the Veltri case, click on this link to the Tort Talk post on that case:

http://www.torttalk.com/2009/11/lackawanna-county-judge-carmen-minora.html


Also of note on this issue is the fact that Judge Zulick of the Monroe County Court of Common Pleas reached the opposite decision in the case of O'Connor v. Erie Ins. Exchange, No. 8654 CV 2009 (Monroe Co. Feb. 9, 2010 Zulick, J.).

In O'Connor, Judge Zulick struck a bad faith claim against the carrier in a matter pertaining to a denial of PIP medical benefits after an IME. The Monroe County Court of Common Pleas ruled that the Plaintiff's remedy was limited to those remedies provided for under the provisions of the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to first party benefits.

For more info on the O'Connor decision, click on this link to the Tort Talk post on that case:

http://www.torttalk.com/2010/03/bad-faith-claim-dismissed-from-first.html.

The above recitation of cases is not meant to be exhaustive on this issue but only serves to point out those cases that have been brought to my attention. Based on the above cases, there appears to be a split of authority on the issue among the trial courts and no appellate case on point to provide guidance.



I send thanks to Erie's defense attorney Robert Panowicz, Esquire for bringing the Skiro case to my attention.

Anyone desiring a copy of Skiro v. Erie Ins. Exchange court filings or court Order or the decision in O'Connor v. Erie Insurance Exchange may contact me at dancummins@comcast.net.

As stated, I do not have the Veltri v. Traveler's decision but if you click on the link above to the other Tort Talk post on Veltri you will find info on how to order a copy of that case from the Instant Case Service run by the Pennsylvania Law Weekly. [UPDATE (6/13/10): I now have a copy of the Veltri opinion should anyone one need it].

New Split of Authority in Lackawanna County in Post-Koken Cases on Severance vs. Consolidation of Claims

Although there are several prior Lackawanna County decisions ruling that third party claims and UIM claims may proceed together under one lawsuit in Post-Koken cases, it was held in the recent May 12, 2010 Lackawanna County Court of Common Pleas decision in Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010 Thomson, S.J.) that such claims should be severed into two separate lawsuits.

Relying in the Pennsylvania Supreme Court case of Stokes v. Moose Lodge, 466 A.2d 134 (Pa. 1983), which held that bad faith claims could not be joined with tortfeasor negligence claims because there was no common question of law or fact, Judge Thomson ruled that Pa.R.C.P. 2229(b), pertaining to permissive joinder of claims in Complaints, did not support the joining of third party liability claims with UIM claims under one caption in a post-Koken case.

Accordingly, the court severed the claims against Erie Insurance and a John Doe Erie Insurance agent and ordered the Plaintiff to re-file the claim against those defendants under a separate caption with a new docket number.

One distinction between this case and the prior Lackawanna County cases in this regard is that, in this matter, in addition to the UIM claim against Erie, the original Complaint also contained claims of breach of contract and two negligence claims against Erie and/or the Erie insurance agent.

There was no indication in the opinion whether or not the Court was provided with copies of the prior Lackawanna County decisions on this issue before the Mehall decision was rendered.

Thanks to Attorney Robert L. Goodman of the Scranton office of the law firm of Forry Ullman for bringing this case to my attention.

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

Update on Seatbelt Defense Case

In an August 6, 2009 per curiam Order issued in the case of Gaudio v. Ford Motor Company, the Pennsylvania Superior Court denied a request to hear additional arguments regarding a defendant's right to introduce evidence concerning seat belt usage, or the lack thereof, in products liability cases involving questions about an automobile's crashworthiness.

This Order effectively upholds the Superior Court's 2-1 decision, found at ruling that the trial court should not have allowed any reference to the plaintiff's decedent's failure to wear a seatbelt in a crashworthiness case. Judge James Fitzgerald III dissented on this issue in the prior Superior Court opinion and suggested that the Courts could use guidance from the Pennsylvania Supreme Court on whether any and all evidence pertaining to the lack of seatbelt use should be precluded under all circumstances.

The original 2-1 Superior Court decision can be found on Westlaw at 2009 WL 1530669, and the Pike County trial court opinion by Judge Harold A. Thomson, Jr. can be found at 2007 WL 5077415.

It remains to be seen now whether the defense will appeal this case up to the Pennsylvania Supreme Court.

Pike County Legal Journal Issues Tribute to Colonel Henry Thomas, former Court Crier for Pike County Court of Common Pleas

In this week's Pike County Legal Journal there is an excellent tribute to the late Colonel Henry Thomas, former Court Crier for the Pike County Court of Common Pleas. What a great guy he was--just a solid human being all around.

My first legal job was as a law clerk in the Pike County Court of Common Pleas and I was lucky enough to get to work with Colonel Thomas whenever court was in session and I can say I am a better lawyer and person for it. He helped me to learn some of the basic expectations and courtesies expected in the courtroom and even how local practice was supposed to work in Pike County.

He also was known for taking his job seriously. Being a former military policeman, he was always quick to tell anyone who appeared before the court to take their hands out of their pockets. He would always try to be the first one in the courtroom in the morning so that he could do a "bomb sweep" of the courtroom and the gallery (and he was serious about it). Yet, he would also show he was human in that he would sometimes nod off to sleep during the "eloquent" arguments of various attorneys near the end of a long argument day.

As I am sure there are many lawyers out there who have fond memories of having encountered Colonel Thomas over the years in Pike County, I invite you to submit a comment below of any memories of Colonel Thomas you may have to offer.

I also wanted to share parts of the moving tribute to him that appeared the Pike County Legal Journal:

Col. Henry G. Thomas
October 21, 1912 to October 29, 2003

Court Crier for
The Pike County Court
of Common Pleas
1979-1998


Many bar members can probably fondly recall all the times Col. Henry G. Thomas stood up to call court to order by reciting these words: “OYEZ, OYEZ, OYEZ, all you have ought to do before the Honorable Court, draw near and give your attention and you shall be heard. God Save this Commonwealth and this Honorable Court. [The Honorable President Judge, Harold A. Thomson presiding.]”

For almost two decades, Col. Thomas began every morning of court with the above greeting. He served his role as court crier with no less dedication than he served his country in the military.

Col. Thomas prided himself on checking the courtroom every morning to be certain that all the chairs and tables were cleared of any contraband. A talkative fellow, he could recall endless facts, dates, and other information seemingly effortlessly. He was famous for taking the list of jurors’ names home with him after jury selection and memorizing them. For the remainder of the trial, he knew each juror by name. When taking a verdict from a jury, many of us recall laughing at the way he would ask the jurors if they were content with the verdict ...followed up by the next question ...were they content with each other.

He also liked to help ease young lawyers’ nervousness by sharing with them secrets he learned from the military tribunal of rubbing their hands together to release nervous energy before engaging in a trial. Any time he saw a new lawyer’s face in the courtroom, he always went over to get their card so that he could properly introduce them to the court. When Tuesday morning Motions Court still existed, Col. Thomas made sure that he directed the order of attorneys appearing to present their motions so that no one went out of order of seniority. He was an integral part of court and missed by all who had the pleasure of knowing him.

Col. Henry Thomas had an interesting life. Born in Luzerne County, Pennsylvania, he went on to study at Penn State. He graduated in the late 1930s and through ROTC received a Lieutenant’s Commission in the Infantry. He was made a commander of a CCC camp just before World War II. When the war started he became a MP Officer and went to North Africa to observe the German and Italian prisoners. Later in the war he went to India and Burma as a MP Officer. At the end of the war, he was in Vienna and was involved with the four power policing of the city. He later served in Korea. In his later years, Col. Thomas faithfully served Judge Thomson by calling court to order each morning in his capacity as court crier. Col. Thomas passed away at age 91. He and his wife Naomi are buried in Arlington National Cemetery, Arlington, Virginia. The Pike County Bar Association salutes the many years of faithful service to the court by Col. Thomas. The picture of Col. Thomas with his plaque from the court is on the wall outside the Judge’s Chambers in the Pike County Courthouse.