Motion to Bifurcate Medical Malpractice Case Denied

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

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

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

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

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

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

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

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

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


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

Source of image: Photo from Times Leader story.

Continuing Violations Doctrine Does Not Save Civil Rights Claim From Statute of Limitations Defense Under Facts Presented

In the case of Sharr v. City of Scranton, No. 3:23-CV-00826-JFS (M.D. Pa. March 13, 2024 Saporito, C.M.J.), Chief Magistrate Judge Joseph F. Saporito, Jr. granted a Motion to Dismiss in a civil rights action brought by three (3) retirees against their former employer, The City of Scranton, relative to issues surrounding their monthly pension benefit payments that were reduced by The City.

The Plaintiffs had presented a claim that The City had violated their Fourteenth Amendment Due Process and Equal Protection Rights and had presented a 42 U.S.C. §1983 civil rights action.

The Defendant, City of Scranton, moved to dismiss the action for failure to state a claim upon which relief may be granted under an argument that the Plaintiffs’ claims were barred by the applicable statute of limitations.

The Plaintiffs attempted to argue that the time within which they could file a lawsuit was extended by the continuing violations doctrine. 

The Plaintiff contended that each reduced monthly pension benefit payment paid by The City constituted another in a series of allegedly continuing unlawful acts, all of which, when taking together, comprised an ongoing continuing practice of allegedly violating the Plaintiffs’ constitutional rights.

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

The court reviewed the law of the continuing violation doctrine and found that the Plaintiffs’ arguments did not meet the requirements of that doctrine. 

 The court found that the Plaintiffs’ claims were instead barred by the statute of limitations because the Plaintiffs were aware of their alleged injury at the time the alleged injury occurred well beyond the two (2) state of limitations applicable to civil rights actions.

As such, the court granted the Defendant’s Motion to Dismiss. Moreover, the court dismissed the action without leave to amend as the court found that it was clear from the facts alleged that any attempt to file an Amended Complaint would be futile as a matter of law.

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

Chief Magistrate Judge Saporito of Federal Middle District Court Reviews Assumption of Risk Doctrine

In the case of Hazen v. Woodloch Pines Resort, No. 3:21-CV-00174 (M.D. Pa. Feb. 16, 2024 Saporito, C.M.J.) Chief Magistrate Judge Joseph F. Saporito, Jr., of the Federal Middle District Court of Pennsylvania denied a Motion for Summary Judgment by a Defendant resort in a fall down case.

According to the Opinion, the Plaintiff was engaged in a corporate team building activity on an outdoor low ropes challenge course. During one of the challenges, the Plaintiff fell, along with other members of her team, to the ground below.  The Plaintiff allegedly suffered a significant ankle injury, including an ankle dislocation and fracture.

The Defendants filed a Motion for Summary arguing that the Plaintiff’s claims were barred under the assumption of risk doctrine.

Judge Saporito reviewed the current status of the Pennsylvania law on the assumption of risk doctrine. While the court found that it was undisputed that the Plaintiff was generally aware of the risk that she might fall from the balance beam during the activity she was engaged in, the court noted that awareness of a general risk does not amount to awareness of a specific risk under the assumption of the risk doctrine under Pennsylvania law. Here, the court did not find that the potential for serious injury such as a complex ankle fracture and other injuries could have been appreciated under the circumstances presented.

Moreover, the court noted that there is factual dispute as to whether the Plaintiff’s participation in the challenge course was voluntary as that term is defined under the assumption of the risk doctrine. The Plaintiff offered testimony that she felt that her participation in this team building activity was required rather than voluntary.

Accordingly, in light of the issues of fact presented, the court denied the Motion for 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 Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source:  Photo by Thomas Couillard from www.unsplash.com.

Court Addresses Motion To Dismiss Section 1983 Prison Case Regarding Medical Care Issues

In the case of Cyr v. Schuylkill County, No. 3:22-CV-00453 (M.D. Pa. Jan. 30, 2023 Saporito, M.J.), the court denied the Defendant nurse's and prison medical care company’s Motion to Dismiss a claim for an alleged §1983 denial of medical care and failure to intervene action after the Plaintiff's son died in prison of an alleged drug overdose.

The court found that the Plaintiff had adequately pled a denial of medical care and a failure to intervene in the Complaint. The court found that the allegations sufficiently pled a plausible claim against the medical company.

More specifically, after reviewing the Complaint, the court noted that the Plaintiff asserted in the Complaint that the son’s serious medical need was “so obvious” that a layperson could recognize it.

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

The court additionally found that the Complaint sufficiently alleged deliberate indifference to substantiate a denial of medical care claim.

Judge Saporito also pointed to the fact that the Plaintiff had identified several policies, customs, or practices that the nurses and medical company allegedly violated which allegedly caused the deprivation of the son’s constitutional rights. Those alleged policies included alleged insufficient staffing, failing to train employees on diagnosing intoxicated or overdosing inmates, and not monitoring inmates in need or emergency care.

The court additionally found that the Plaintiff plausibly pled a failure to intervene claim.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 14, 2023).

Issues of Fact Preclude Entry of Summary Judgment in Case of Slip and Fall Sustained by Ice Skater

In the case of Murphy v. Pines, No. 3:20-CV-00320 (M.D. Pa. Nov. 21, 2022 Saporito, M.J.), the court denied summary judgment after finding genuine issues of material fact existed on whether the Plaintiff, an experienced skater, was entitled to a recovery when she slipped and fell while skating on ice.  The court noted that the Plaintiff had never before skated on synthetic ice.   

In his Opinion, Judge Joseph F. Saporito, Jr., noted that, while falling while ice skating is an inherent risk of that activity, the risks of alleged damaged surfaces are not.  The court found that the issue of assumption of the risk was for the jury to decide under the conflicting facts presented in this case.   

The court also addressed the “no duty” rule.  While the court noted that the “no duty” rule precludes liability for injuries from risk that are common, frequent, expected, and inherent in a sporting activity, and while that rule can apply when the assumption of the risk doctrine does not, the court found that issues of fact in this case prevented the entry of summary judgment in favor of the Defendant.

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

Judge Saporito additionally addressed separate arguments raised relative to the scope and impact of the release that was signed by the Plaintiff prior to engaging in the ice skating activity at the facility.  

The court noted that the release language was boilerplate and was only located on a rental receipt.  The language was not conspicuous and was never explained to the Plaintiff or even brought to the Plaintiff’s attention.   As such, given these issues, the court ruled that the issue of whether the Release was effective to preclude a recovery would be left for the jury’s consideration. 

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 top image: Photo by Efrem Efre on www.pexels.com.

Issues of Material Fact Exist On Whether Plaintiff Properly Reported Uninsured Motorist Accident to Police

In the case of Calestini v. State Farm Mut. Auto. Ins. Co., No. 3:19-CV-01995 (M.D. Pa. April 13, 2021 Saporito, M.J.), the court addressed a Motion for Summary Judgment filed by the carrier in an uninsured motorist case on the issue of whether or not the underlying motor vehicle accident had been properly reported to the police as required under the policy.

According to the Opinion, the Plaintiff did not report the accident to the police on the date of the incident. The Plaintiff did report the accident, in person, to his insurance agent within six (6) days of the accident.

The Opinion also confirms that Plaintiff’s counsel reported the accident to the police after meeting with his client, which was approximately 106 days after the accident.

The court denied the carrier’s Motion for Summary Judgment after finding that there genuine issues of material fact presented on the issue of whether the Plaintiff reported the accident to the police in light of the evidence that the Plaintiff had reported the incident to his insurance agent and in consideration of the Plaintiff’s alleged learning disability and associated issues.

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


I send thanks to Attorney James J. Conaboy, of the Scranton, Pennsylvania law firm of Abrahamsen, Conaboy & Abrahamsen for bringing this case to my attention.

Deposition of Corporate Designee of Insurance Company Allowed; But Scope of Deposition Limited by Court

In the case of Evanina v. The First Liberty Ins. Corp., No. 3:20-CV-00751 (M.D. Pa. Nov. 4, 2020 Saporito, M.J.), the court granted in part and denied in part a Motion for a Protective Order field by the Defendant, The First Liberty Insurance Corporation, relative to the Plaintiff’s desire to complete a deposition of a corporate designee of the insurance company on issues related to the regular use exclusion. 

After reviewing the rules of discovery under Federal Rule of Civil Procedure 26, which also covers the standards for a Motion for a Protective Order, Magistrate Judge Joseph F. Saporito, Jr., narrowed the scope of the requested corporate designee deposition to only cover those issues set forth in the Plaintiff’s Complaint.

The court also noted that the deposition of the corporate designee was allowed in a breach of contract claim that did not include a statutory bad faith claim given that there is also a duty of good faith and fair dealing imposed under an insurance contract which could be a part of a breach of contract action.


Given that the regular use exclusion was being relied upon by the carrier as a potential defense, the court ordered that this area of inquiry under the corporate designee deposition would be allowed.

However, other requested areas to be reviewed, as noted in the deposition notice, such as questions pertaining to the household exclusion, the family car exclusion, and the unlisted driver exclusion were precluded as irrelevant to the issues presented in this particular case.

In its decision, the court also rejected the carrier’s contention that the requested deposition was disproportionate to the needs of discovery in the case. After reviewing the factors pertinent to this inquiry, the court agreed with the Plaintiff’s arguments on this part of the issue.

Anyone wishing to review a copy of this Order and Decision by the United States Magistrate Judge Joseph F. Saporito, Jr., may click this LINK.

Court Addresses Apportionment of Costs of Expert Depositions in Federal Court Civil Litigation Matter

In the case of Hunter v. Kennedy, No. 3:17-cv-00007 (M.D. Pa. Dec. 4, 2018 Saporito, Mag. J.), the court addressed discovery disputes involving the apportionment of expert witness fees in a medical malpractice matter. 

According to the Opinion, the case arose out of an incident during which Plaintiff fell from a ladder and injured her left ankle which was allegedly followed by negligent medical care by her healthcare providers. 

During the course of discovery, the parties completed some depositions of expert witnesses and a dispute arose between the parties over the allocation of expert witness fees.

The Defendants filed a Joint Motion for the Apportionment of the Expert Deposition Costs.   More particularly, the issues involved whether the Plaintiff’s treating physician, a podiatrist, was also to be treated as an expert witness, and what, if any, apportionment of her deposition fees should be made amongst the parties.   A secondary issue was whether the deposition fees for the remaining expert witnesses should be apportioned.

Relative to the deposition fees requested by the Plaintiff’s treating podiatrist, the court noted that the Plaintiff had previously designated that doctor as an expert witness by correspondence to all parties in the matter.   The Plaintiff also produced two (2) reports prepared by that doctor.  

In this matter, the court was being asked to decide whether the Plaintiff’s treating podiatrist was deposed as an expert witness or a fact witness and, if the deposition was of the doctor as an expert witness, whether the Defendants were obligated to pay that doctor a reasonable expert witness fee or the statutory witness fee under Federal Rules.  

The Defendants were arguing that, as a treating doctor, the witness was a fact witness rather than an expert witness and that they we were only obligated to pay the statutory $40.00 witness fee under the Federal Rules.    The Defendants argued that the two (2) one (1) page reports issued by this doctor did not satisfy the extensive report requirements relative to expert witness reports under the Federal Rules.  Judge Saporito noted that the Federal Rules of Evidence do not distinguish between lay and expert witnesses, but “rather between expert and lay testimony.”   See Op. at p. 3.

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

 

Federal Magistrate Judge Saporito noted that, under Third Circuit precedent, treating physicians may testify as lay witnesses regarding diagnoses and treatment under some circumstances.  However, the testimony of treating physicians on prognosis and causation will inherently be based upon scientific, technical, or specialized knowledge within the scope of Rule 702 of the Federal Rules of Evidence pertaining to expert testimony.   Accordingly, the court noted that, to the extent a party intends to offer the testimony of a treating physician on issues of prognosis or causation, that party is required to disclose the treating physician as an expert witness under Rule 26(a)(2)(A).  

The court noted that a treating physician is typically treated as a “non-retained” expert subject to less strenuous disclosure requirements as compared to experts specifically retained to testify in a litigation.  

To determine whether a party retained or specially employed a treating physician to supply expert testimony, the relevant test is “whether the treating physician acquired his opinion as to the cause of the Plaintiff’s injuries directly through his treatment of the Plaintiff.”  See Op. at 6.  

Applying the law to the case before him, Magistrate Judge Saporito, found that the Plaintiffs satisfied their disclosure requirements under Federal Rule 26 relative to the treating doctor as a non-retained expert witness.   The judge also ruled that it was clear that the opinions that the treating doctor was expected to offer, as evidenced in her reports, included opinions regarding prognosis and causation which opinions were acquired directly through the doctor’s treatment of the Plaintiff.   Consequently, the court found that the treating doctor had been properly identified as a witness whom that the Plaintiffs intended to use and present expert evidence at trial and that the Plaintiffs had satisfied their disclosure obligation under Rule 26(a)(2)(C).  

Judge Saporito also confirmed that the Federal Rules provide that a party may depose any person who has been identified as an expert whose opinions may be presented at trial.   The rules further provide that, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.   The court noted that the Defendants in this matter availed themselves of the Federal Rules in taking the deposition of the treating doctor and had proffered no reason why manifest injustice would be result from requiring them to pay the doctor a reasonable fee for her time spent being deposed.

The court went on to determine that the doctor’s fee request was reasonable. The fee request was $2,500.00 for the first two (2) hours and $750.00 for each additional hour.  

While the court agreed that the fee schedule noted by the doctor was reasonable, the court did not find it reasonable for the doctor to charge the amounts she charged to attend two (2) separate deposition dates as the second deposition date was effectively a continuation of the same deposition that had been adjourned on the first day due to the late hour of the deposition, the late production of medical records, and the difficulty among the parties and the witness in scheduling the second day of the deposition.  

As such, the court directed that the Defendants, as the deposing parties, were responsible for the payment of the doctor’s reasonable expert fee at an amount slightly less than what the doctor was claiming for the two (2) dates. 

As to the second issue regarding the apportionment of fees charged by the other experts in the matter, the court ruled that the method set forth in Rule 26(b)(4)(E) be followed.  Under that Rule, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for the time spent responding to the discovery.  

In so ruling, the court rejected the Defendants’ request that the obligation to pay expert fees for depositions be apportioned between the parties based on their respective percentage of time each side spent examining the expert at the deposition.  
Anyone wishing to review a copy of this decision by the United States Magistrate Judge Joseph F. Saporito, Jr. may click this LINK

I send thanks to Attorney Thomas Foley, Jr. of the Foley Law Firm in Scranton, Pennsylvania for bringing this decision to my attention.  

Federal Court Reaffirms That Plaintiffs Have No Standing to Assert Direct Bad Faith Claim Against Tortfeasor's Carrier

In the case of Starrett v. Coe, No. 3:16-cv-02272 (M.D. Pa. June 20, 2017 Saporito, M.J.) (Report and Recommendation, affirmed by Judge A. Richard Caputo under an Opinion dated August 9, 2017), it was held that third party Plaintiffs do not have a contractual relationship with tortfeasor’s liability carriers and, therefore, such Plaintiffs have no standing to assert a bad faith claim against a tortfeasor’s insurer and/or its adjuster.

The district court judge agreed with Federal Magistrate Joseph Saporito's Opinion in this regard and, thereby, dismissed the bad faith failure to negotiate claim lawsuit filed by the Plaintiff.

Anyone wishing to review Federal District Magistrate Judge Saporito's Report and Recommendations may click this LINK.

To review Judge Caputo's Opinion adopting Judge Saporito's decision, please click HERE.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog.