Multi-Million Dollar Jury Verdict in Construction Case Deconstructed by Superior Court (Non-Precedential)

In the non-precedential case of D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa.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

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

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

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

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


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

Post-Trial Motions Denied in Lackawanna County Fatal Boating Accident Case

 
In the case of Loomis v. Bomba, No. 18-CV-930 (C.P. Lacka. Co. March 12, 2021 Nealon, J.), the court addressed a number of post-trial motions filed by a Plaintiff after a defense verdict was entered in a boating fatality litigation.

In the end, after review of the record before it, the court noted that, as the ultimate triers of fact and the judges of credibility, the jury was free to accept or reject the witnesses presented.  The jury’s verdict was found to be not so contrary to the evidence as to shock one’s sense of justice.

With regards to the Plaintiff’s objection that the investigating State Trooper allegedly violated the hearsay rule by referring to a statement that he obtained from a non-testifying witness, the court found that the Trooper’s reference to this statement was permitted to explain his course of conduct in the investigation, rather than any admission of hearsay statement for the truth of the matter asserted. The judge additionally emphasized that he had provided the jury with a cautionary instruction advising the jury that the statement could only be considered for the limited purpose for which it was admitted.

Judge Nealon also rejected any contention by the Plaintiff that his jury instructions were deficient in the court’s failure to charge the jury based upon certain information from a handbook published by the Pennsylvania Fish and Boat Commission. The court noted that the jury was provided by appropriate instructions regarding a boat operator’s duties of care under the Fish and Boat Code as well as under the regulations promulgated by the Fish and Boat Commission. Judge Nealon otherwise noted that the jury instruction charged, as a whole, was not inadequate, unclear, misleading, or confusion. He also noted that the instructions did not omit any basic or fundamental principals of law.

Anyone wishing to review this Opinion may click this LINK.

Judge Terrence R. Nealon Rejects Plaintiff's Request To Have His Children and Grandchildren on Screen To Watch His Jury Trial

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas has issued an interesting decision regarding the logistics of a civil trial being conducted with COVID-19 Pandemic restrictions and precautions in place.

In Lackawanna County, certain larger courtrooms have been designated for use during trials due to the ability to allow for social distancing.  The additional measure of spreading the jury out in the jury box and out into the gallery has led the court to utilize technology to stream the trial proceedings to monitors and screens in other rooms in the courthouse in the event members of the parties' families or members of the public wish to view the proceedings.

In the medical malpractice case of Snyder v. Scranton Hospital Co., LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 31, 2020 Nealon, J.), the Plaintiffs filed a motion in limine seeking to have the court allow a displaying of the Plaintiff's children and grandchildren on monitors and screens in the courtroom via the Zoom videoconferencing platform during the course of opening statements and the closing arguments.  

The Plaintiffs' stated purpose behind this request was to allow the Plaintiff's attorney to introduce the family to the jury, to enable the jury to see and understand that the Plaintiff had a close knit and supportive family, and also to allow the family members to observe the openings and the closings.

The Defendants opposed the Plaintiff's request and asserted that the Plaintiff's request served no legitimate evidentiary purpose and was instead designed to inflame the jury from the outset of the trial and to garner improper sympathy from the jury in favor of the Plaintiffs.

Judge Nealon denied the Plaintiffs' request on several grounds and noted that granting such a request "would create more problems than it would solve."  See Op. at p. 7.

First, he confirmed that, logistically, the members of the Plaintiff's families did not have to be displayed on a screen in the courtroom in order for those family members to be able watch the proceedings on a screen in another room.

Judge Nealon additionally observed that, to the extent the Plaintiffs wanted to introduce family members during the course of the trial, the Plaintiffs could call those family members as witnesses at trial.

It was also noted, that in an effort to avoid any alleged prejudice to the Plaintiff from the absence of the Plaintiffs' family members in the courtroom during the course of the trial, the Court could issue a cautionary instruction to the jury explaining that the family members would be watching the trial from another room in the courthouse due to the jury's use of the gallery for socially distant seating purposes under the COVID-19 restrictions.

Judge Nealon also confirmed that, to the extent the Plaintiffs sought to display their family members on the screen to the jury during openings and closing arguments as proof that the family was close knit and supportive of the injured Plaintiff, such a request would constitute improper opening or closing statements in that such would be an effort to introduce evidence at improper stages of the trial  Judge Nealon noted that it is a "hornbook rule" of law that opening statements and closing arguments are not part of the evidence and may not be considered by the jury as evidence in the case.  See Op. at p. 9.

The Court also noted that, while parties at trial are permitted to utilize visual aids during opening statements and closing arguments, the continuous display of the Plaintiff's family members on the screens and monitors in the courtroom would not be a proper use of demonstrative evidence under the circumstances presented here.  

The court reasoned that, in fact, the constant display of family members, including "restless" children trying to sit through protracted opening statements or closing arguments may even prove distracting or uncomfortable to a jury, and/or may prevent Plaintiff's counsel from the utilizing the screens in the courtroom to show other visual aids to the jury, such as medical records and the like.

Judge Nealon also agreed that the Defendants had articulated the possibility of prejudice in that the Defendants may be unfairly harmed before the first piece of admissible evidence is ever presented at trial if the Plaintiff's request to display family members on the screen during the opening statements was granted.  In so ruling, Judge Nealon noted that the Pennsylvania Supreme Court has recognized that opening statements could be the most important part of a trial as a juror could develop a lasting impression of the case presented that stays with the juror throughout the duration of the trial and into the deliberations room.

In this regard, Judge Nealon agreed that there was a danger that the perpetual display of the Plaintiffs' children and grandchildren on screens before the presentation of any evidence could inflame the jury or generate sympathy such that the jury's attention may be improperly diverted from the statements and arguments of all counsel at the beginning and the end of the trial.

Weighing the fact that the Plaintiff's request could be handled satisfactorily by other means against the potential harm that would result from granting the Plaintiff's request, the Court ultimately decided to deny the Motion.

Anyone wishing to review this decision may click this LINK.

Third Circuit Court of Appeals Rejects Plaintiff's Request for a New Trial Because Trial Judge Used Hand Gestures When Providing Jury With Instructions in Bad Faith Case

Just when you think you've heard all, along comes an argument that a new trial should be granted because a trial court judge improperly used hand gestures during jury instructions to explain a point.

In the case of Antonio v. Progressive Insurance Co., No. 19-1074 (3d Cir. Jan. 8, 2020 Fuentes, J., Scirica, J., Shwartz, J.), the Third Circuit Court of Appeals reviewed various evidentiary rulings by a lower court judge in a post-verdict appeal after a jury entered a verdict in favor of the carrier in a UIM bad faith case.

Of note, the Third Circuit Court of Appeals agreed that there was no abuse of discretion by the trial court judge in barring the Plaintiff’s expert testimony. The Plaintiff wanted her expert to testify for the very limited purpose of establishing a range of value for her underlying UIM claim.

The court noted that this analysis involved the expert looking at other cases not before the court in this trial. The trial court had ruled that “what other cases have paid is not relevant to this case [and] what the value of this case is [and] the jury will be instructed to use their common sense in compensating [the insured] should be prevail.”

The court of appeals found no abuse in the trial court’s discretion in finding that the proposed expert testimony would not aid the jury in the case at hand.

The Third Circuit Court of Appeals also upheld the trial court’s ruling that precluded the Plaintiff from introducing into evidence in the bad faith claim a medical report that addressed the extent of the Plaintiff's alleged injuries and damages, where that report was never provided to the carrier during the underlying claims process.

The court found that such evidence had no relevance to the issue of whether the carrier acted in bad faith as they had not been provided with any opportunity to include that information in their underlying investigation and evaluation.

The appellate court also rejected the Plaintiff’s challenge to the jury instructions. The Plaintiff was complaining that she was entitled to a new trial because the judge had used “hand gestures demonstrating [the Plaintiff’s] burden in the ‘clear and convincing’ standard as a point mid-way between proof by preponderance of the evidence and proof beyond a reasonable doubt.” The court found no error here that would merit the relief requested by the Plaintiff in this regard.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this decision to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Pennsylvania Supreme Court Provides Guidance on Preserving Appellate Issues on Jury Instructions

In the case of Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018) (Op. by Wecht, J.), the Pennsylvania Supreme Court clarified the steps necessary to preserve for appeal any objections with regards to the trial court’s instructions to the jury at trial.  

This case arose out of a motor vehicle accident negligence case.

Prior to trial, the Plaintiff filed proposed Points for Charge with the court. Within those proposed Points for Charge were three (3) proposed instructions related to the Doctrine of Negligence Per Se.  

After trial commenced, but before the case was sent to the jury, the court held a charge conference with the attorneys involved.   Thereafter, the trial court provided its instructions to the court and did not include any instructions concerning negligence per se.  

In the courtroom, after charging the jurors, the trial court judge asked counsel whether there was anything with respect to the charge that either party wanted to put on the record.   The Plaintiff’s lawyer responded “I have no issues with the charge, Your Honor.”  

The jury returned a defense verdict.

The Plaintiff filed post-trial motions asserting, in part, that the trial court erred in failing to instruct the jury as to negligence per se.   The defense asserted that the Plaintiff had waived that issue by failing to lodge a timely objection at trial. The Plaintiff responded that the issue had been preserved by filing the written Proposed Points for Charge with the court and by raising the issue in a pre-trial motion.

The trial court denied the Plaintiff’s post-trial motion and the case went up the appellate ladder, eventually reaching this decision by the Pennsylvania Supreme Court.  

The Pennsylvania Supreme Court had granted review of the case, in part, in order to clarify the steps one may take to preserve a challenge to the trial court’s jury instructions in accordance with Pennsylvania Rules of Civil Procedure  227.1.  

Ultimately, the Pennsylvania Supreme Court ruled that, since the Plaintiff failed to lodge a contemporaneous objection to the trial court’s instruction at trial or to state any objection when invited to do so by the court at the conclusion of the instructions, the Plaintiff’s challenge to the instructions was deemed to have been waived.  Accordingly, the lower court decisions were affirmed. 

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

HERE is the Concurring Opinion by Chief Justice Saylor.

HERE is the Dissenting Opinion by Justice Dougherty.  

HERE is the Dissenting Opinion by Justice Mundy.

Commentary: The lesson here is to, at a minimum, raise to file Proposed Points for Charge with the instructions you desire prior to the start of the trial, make your voice heard on instructions desired at the Charge Conference, and place your position on the record at the conclusion of the jury instructions when the court invites you to do so.

ARTICLE: Jury Instructions in Products Liability Cases Create More Debate Than Consensus

The below article of mine appeared in the March 20, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

 

Jury Instructions in Products Liability Cases Create More Debate Than Consensus

By Daniel E. Cummins | March 20, 2018
Pennsylvania Law Weekly

With the law of products liability cases continuing to evolve in the post-Tincher era, growing pains are being felt by both the courts and practitioners. In particular, as reported in numerous recent articles in the Pennsylvania Law Weekly and The Legal Intelligencer, the trial courts are faced with conflicting positions from the plaintiff’s bar and the defense bar on the proper language for jury instructions in post-Tincher products cases.

After the Tincher decision was handed down by the Pennsylvania Supreme Court in 2014, the civil instructions subcommittee of the Pennsylvania Supreme Court committee for proposed standard jury instructions drafted suggested standard civil jury instructions for products liability cases which were then published by the Pennsylvania Bar Institute (PBI).

The post-Tincher jury instructions drafted by the subcommittee were quickly criticized by members of the defense bar who felt that the language in the instructions was not entirely consistent with the law laid down in Tincher. In a touch of irony, it may be said that members of the defense bar view these suggested jury instructions on products liability cases as being defective.

With members of both the plaintiffs bar and the defense bar being so vociferous in their opposing positions on these suggested standard civil jury instructions for products liability claims, and given that the language of some portions of these instructions have been called into question by the recent decision of the Superior Court in Tincher, it may be advisable for the civil instructions subcommittee to go back to the drawing board in an effort to come up with a consensus on such instructions for the benefit of both the courts and the litigants.

A revised set of products liability jury instructions would not only quiet the debate but, more importantly, would further the interest of judicial economy by potentially avoiding appeals and, in those cases that are appealed, possibly avoiding the need for appellate courts to overturn verdicts on the basis of improper jury instructions utilized by the trial court.

‘Tincher’ Altered the Law (Somewhat)

Back in 2014, when the Pennsylvania Supreme Court released its much-anticipated products liability decision in the case of Tincher v. Omega Flex, the central question before the court was whether the strict liability analysis of Section 402A of the Reinstatement (Second) of Torts should be replaced with the analysis contained in the Restatement (Third) of Torts.

In its 128-page majority opinion, the Pennsylvania Supreme Court elected to stay with Section 402A of the Restatement (Second) of Torts but also chose to overrule the prior notable products liability decision of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978) and that court’s negligence/strict liability analysis which had been followed by Pennsylvania litigators for 36 years.

The prior Azzarello decision and its progeny were plaintiff-friendly in that those decisions fostered the removal of all negligence concepts from products liability cases in favor of strict liability concepts. The Azzarello decision also held that the trial court, and not the jury, was in charge of evaluating the risk/utility of a defendant’s product. Under the law set forth in Azzarello, the trial courts were additionally required to instruct juries that the manufacturer or supplier of a product was a guarantor of the safety of its product.

The Supreme Court in Tincher expressly overruled Azzarello and disapproved of that court’s support for a jury instruction that a “manufacturer is a guarantor of its product.” The Tincher court formulated an altered standard of review for Pennsylvania products liability cases that focused on both a “consumer expectation” and a “risk/utility” definition of a defect.

Under the consumer expectation test, a product may be found to be in a defective condition if the danger posed by the product is unknowable and unacceptable to the average or ordinary consumer.

The separate “risk/utility” standard, required the utilization of a balancing test to weigh the risks and utilities of the products, as stated in some cases, a cost/benefit analysis.

Under the risk/utility test, a product may be found to be defective when the probability and seriousness of harm caused by the product outweighs the burden or cost of taking precautions against the risk. The risk/utility analysis takes into account a number of many different factors, commonly known as Wade factors.

A Debate Arises

The stated goal of the civil instructions subcommittee appointed by the Pennsylvania Supreme Court is to draft clear, concise instructions that are understandable to citizen jurors, while ensuring that the proposed instructions reflect the current law and case law.

The current debate between the plaintiffs bar and the defense bar centers on whether the suggested standard civil jury instructions pertaining to products liability cases accurately reflect the law of Tincher.  Important portions of these suggested products liability instructions have been challenged by members of the defense bar as being inconsistent with the Supreme Court’s analysis and ultimate decision in Tincher.

In an unprecedented move, members of the Pennsylvania Defense Institute even drafted and published its own recommended products liability jury instructions in 2016. Since that time, trial courts have been faced with strong arguments from each side as to the proper content for the jury charge in products cases.

Areas of Contention

Several areas of contention exists between the plaintiffs bar and the defense bar on the proper wording of products liability jury instructions.

While the suggested standard jury charges published by the PBI do not contain language pertaining to whether a product is “unreasonably dangerous,” the jury charge published by the defense bar adds that language. The defense bar also proposes the removal of language from the subcommittee’s instructions indicating that a product is dangerous if it lacks any element necessary to make it safe for its intended use as such language is only supported by the Azzarello decision which, as noted, was overruled.

Perhaps the sharpest area of dispute is the contention that the PBI’s suggested standard jury instructions maintains other language that is also consistent with the overruled Azzarello decision, namely that the product manufacturer or supplier is a guarantor of the safety of its product.  In the jury instructions propounded by the members of the defense bar, the Azzarello “guarantor” language is not included.

Some of these areas of contention can now be addressed in light of the Pennsylvania’s Superior Court’s most recent February 2018, decision issued in the ongoing saga of the Tincher case.

Latest Pronouncement

In its recent Tincher decision, the Pennsylvania Supreme Court confirmed that the inclusion of language in jury instructions consistent with the law set forth in Azzarello should be avoided as that decision was overruled by the Pennsylvania Supreme Court in its 2014 decision in Tincher.

The Pennsylvania Superior Court in Tincher more specifically determined that a new trial was necessary in that case, in part, because the jury instructions that were provided by the trial gave the jury an outdated definition of “defect” rooted in the overruled Azzarello case. The Superior Court noted that the trial court, relying upon the law of Azzarello, had instructed the trial court that a product is defective if it “lacks any element needed to make it safe for its intended use.”

The Superior Court ruled in Tincher that “if an incorrect definition of ‘defect’ under Azzarello calls for a new trial, an incorrect definition of ‘defect’ under Tincher should call for the same result.” Given that the trial court gave a charge under the law that the Pennsylvania Supreme Court explicitly overruled, the Superior Court in Tincher found this to be a fundamental error on the part of the trial court and, as such, the case was remanded for a new trial.

The decision by the Superior Court and its reiteration of the Pennsylvania Supreme Court’s notion that the Azzarello language has been disapproved supports the notion that, at a minimum, the Azzarello-type language contained in the PBI published suggested standard jury instructions is improper and should be revised to mirror the law of Tincher.

Action Needed to Quiet the Debate

The hope remains that members of the defense bar and the plaintiffs bar can work together with the civil instructions subcommittee to come to an agreement on the proposed language such that, one day in the not too distant future, there will be a set of products liability suggested standard civil jury instructions that litigants can rely upon in anticipation of trial and that trial court judges can simply read to the jury just like any other accepted instructions published by the PBI.

With a debate as loud as the one currently going on between the plaintiffs bar and the defense bar, the suggested standard civil jury instructions should be revisited, particularly since certain language contained in these instructions has been called into serious question by the reasoning in the most recent decision in the Tincher case issued by the Pennsylvania Superior Court.

Unfortunately, it may be a while before any revisions may take place. It is likely that there will be a continuing debate between the plaintiffs bar and the defense bar over whether such changes are even necessary. If a decision is eventually reached that revisions to the suggested jury instructions should be made to quiet the debate and conform the instructions more closely with the law of Tincher and its progeny, it will then likely take another extended period of time before the subcommittee can secure a consensus before a revised set of instructions are issued and published.

And so, in the meantime, given the sharp differences between plaintiffs attorneys and defense attorneys on the proper language to be utilized to charge a jury in a products case, along with the fact that a valid argument exists that that at least portions of the current PBI instructions are not entirely consistent with post-Tincher law, trial court judges should be leery of simply reading to the jury the suggested standard civil jury instructions on this topic as they are currently worded.

In an effort to avoid appellate issues, or worse, remands of products liability cases for expensive, docket-clogging new trials, trial court judges might instead order the opposing parties to work out their differences prior to trial and to stipulate to agreed-upon language for the charge of the jury.

Where, as is likely, the parties are not able to come to an agreement on the proposed language for the charge to the jury, trial court judges should alter the current PBI jury instructions with amendments to render them consistent the applicable law as may continue to be developed by the appellate courts in post-Tincher cases.

The current contested PBI instructions are, after all, only suggested jury instructions that are not binding upon trial courts of Pennsylvania.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.

 

Tincher Decision Revisited by Pennsylvania Superior Court

The courts of Pennsylvania continue attempt to move forward in the post-Tincher world of products liability cases, including in the actual Tincher case.

On remand from the Pennsylvania Supreme Court, the trial judge in the actual Tincher case denied any relief to the defense. 

However, the trial court’s denial of the Defendant’s motion for post-trial relief has been reversed by the Pennsylvania Superior Court in its February 16, 2018 decision in Tincher v. Omega Flex, Inc., No. 1285 EDA 2016, 2018 Pa. Super. 33 (Pa. Super. Feb. 16, 2018 Lazarus, J., Platt, J., Strassburger, J.)(Op. by Lazarus, J.).   The Pennsylvania Superior Court particularly found fault with the trial court’s jury instructions with respect to standards for finding a "defect" and a new trial was ordered in light of the extensive changes that the Tincher Supreme Court decision made to Pennsylvania product liability law.

Notably, the Superior Court noted that the trial court’s jury instructions which relied, in part, on the law of the prior case of Azzarello v. Black Brothers, Inc., 391 A.2d 1020 (Pa. 1978), were “incorrect.”  Op. at p. 18.

The Superior Court in this Tincher opinion noted that “[t]he charge thus contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not “an insurer of [that] safety.”  Op. at p. 18.

The Superior Court, in no uncertain terms, emphasized that “[t]he Supreme Court has now overruled Azzarello and determined that this statement of product liability law was incorrect. The trial court’s jury charge, therefore, was erroneous.”  Op at p. 18.

The Tincher Superior Court went on to state, “Here, the trial court gave a charge on a determinative issue that failed to conform to the applicable law, as stated in Tincher.  We conclude, therefore, that the charge amounted to fundamental error.”  Op. at p. 20.

The court also noted, “[T]he trial court gave a charge under law that the Supreme Court has explicitly overruled in this very case. Such a charge would appear to be a paradigm example of fundamental error.”  Op. at p. 23.  The appellate court emphasized that the provision of an incorrect definition of a "defect" in conflict with the standards on the same set forth in Tincher required the granting of a new trial.

In the end, the Superior Court found that “[t]he trial court had no authority to deny a new trial on the basis of its own speculation about what the jury would do under the Supreme Court’s new formulation of the law.”  Op. at p. 27.  It further noted that “[t]he trial court’s declaration that the new legal reformulation resulting from the Supreme Court’s thorough and extensive decision … can cause no change to the verdict undervalues the importance of the Supreme Court’s decision.”  Op at p. 27.

The appellate court ultimately found that given that the jury instructions were incorrect under the new Tincher analysis, a new trial was required to be ordered.

The Superior Court otherwise confirmed that under the new Tincher analysis enunciated by the Pennsylvania Supreme Court, “only the fact-finder – in this case, the jury – may determine whether a product is defective.”  Op. at p. 28.

Anyone wishing to review the Pennsylvania Superior Court’s decision in Tincher may click this LINK.

Commentary:  In this new decision, the Superior Court makes clear that the Azzarello analysis and, therefore, any jury charge based upon that case, has been expressly “disapproved” by the Pennsylvania Supreme Court.  Accordingly, it appears that the Pennsylvania Standard Suggested Jury Instruction issued after the Supreme Court’s decision in Tincher purporting to restore the Azzarello formulation may be inconsistent with the new standards set down in Tincher.

Tort Talkers may recall that a committee of attorneys affiliated with the Pennsylvania Defense Institute formulated  alternative post-Tincher standard jury instructions that are represented to be consistent with the new analysis adopted by the Pennsylvania Supreme Court in Tincher.  A Link to these proposed jury instructions can be found HERE. 

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

Pennsylvania Defense Institute Drafts Proposed Points for Charge for Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.

 

These suggested instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.

 

The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.

 

CLE Booklet Created from Tort Talk Posts Available Online

Here is a LINK to a 218 page booklet I created over the Summer for a CLE program. 

Although the booklet is entitled "Auto Law Update," it really provides a general Civil Litigation Update as it covers other areas as well.  The booklet was derived primarily by cutting and pasting blog posts from Tort Talk over the past year.

Also included in the booklet are some sample Post-Koken jury instructions utilized by courts from around the Commonwealth.

The Post-Koken Scorecard and the Facebook Discovery Scorecard from the Tort Talk Blog are also included.

Please enjoy and Thanks for reading Tort Talk.

New Required Jury Instructions for Prospective and Selected Jurors

 

Here is a LINK to new required Jury Instructions issued by the Pennsylvania Supreme Court for "Prospective" and "Selected" jurors.

The amendments place emphasis on advising such jurors of the prohibitions against using computer or mobile devices in a manner that may violate the instructions of the court during trial, including instructions on not discussing or researching the case presented.

Transcript of Jury Instructions Secured From Dauphin Co. Post-Koken Trial That Ended in Mistrial

In yesterday's Tort Talk, the Post-Koken case of Oaks v. Erie Ins. Exch. and Austin was reviewed in which the Dauphin County court agreed to bifurcate a retrial of a Post-Koken case against both a tortfeasor Defendant driver and the UIM carrier after the jury, through questions presented to the court during their deliberations, indicated that they were looking at the issue of the tortfeasor's liability insurance coverage in violation of Pennsylvania law.  [Click HERE to review that Tort Talk post again and to access a link to the Order without Opinion].

Tort Talkers can click HERE to review the Jury Instructions utilized by the trial court in Oaks at the first trial which, as noted, ended in a mistrial when the jury began to focus on the issue of the tortfeasor's liability coverage.

A review of these jury instructions show just how difficult it can be to craft appropriate jury instructions in a Post-Koken trial involving both the tortfeasor Defendant driver and the UIM carrier Defendant.

Dauphin County Court Reconsiders and Grants Post-Koken Severance Request after a Mistrial at First Consolidated Trial

In a recent Order without Opinion in the Post-Koken case of Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.) handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier.

According to information received on this case, the case proceeded through the pleadings and discovery phases in a consolidated fashion.  A motion to sever the cases was originally filed shortly before the first trial and was denied.  During jury deliberations after the first trial, the jury submitted a number of written questions that suggest that the jury was aware that the tortfeasor had insurance coverage and that the jury was focusing on matters that were asserted to be prejudicial to the Defendants.  As such, Judge Bratton granted a motion for a mistrial.  The Motion for Reconsideration which is the subject of this Oaks decision was filed after the mistrial.

 This Motion for Reconsideration was granted and in that Order the court held that the negligence claims asserted by the Plaintiff against the Defendant would be severed, for the purposes of the retrial of this matter, from the UIM claims against the carrier Defendant.

In other words, the retrial of this matter was held to proceed in a bifurcated fashion with one trial on the negligence claim against the tortfeasor, and a separate trial on the UIM claim against the carrier.

Unfortunately no rationale or reasoning behind this decision in contained in the court's Order.

Anyone wishing to review this decision, may click HERE.

I send thanks to Attorney John A. Statler of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner for providing me with a copy of this decision.


Commentary:

A review of the Post-Koken Scorecard on www.TortTalk.com confirms that there is a split of authority within the trial court decisions out of Dauphin County on the issue of consolidation versus severance of Post-Koken cases from the pleadings and discovery phases of a case.

This more recent Oaks v. Erie Ins. Exchange case summarized above confirms that at least one Dauphin County Judge has ruled that a Post-Koken case should be bifurcated into two separate trials, i.e. one trial on the negligence claims against the tortfeasor Defendant, and a separate trial on the UIM claim against the carrier.

The Post-Koken Scorecard on www.TortTalk.com confirms that, to date, there is a split of authority amongst the trial courts on whether or not to bifurcate a Post-Koken case for trial. 

The only appellate case, to date, to comment on this bifurcation of trial issue is the Stepanovich v. McGraw and State Farm case, the Tort Talk blog post on which can be viewed HERE.  My Pennsylvania Law Weekly article reviewing that Stepanovich case can be viewed at this LINK.

Judge Nealon Rules in Favor of Consolidation for Post-Koken Trials (And Also Rules on Appropriate Jury Instructions)

In his April 15, 2015 decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another notable post-Koken decision in which he became one of the first few judges from across the Commonwealth of Pennsylvania to address the issue of whether or not a post-Koken third party/UIM matter should proceed to trial in a consolidated or bifurcated fashion - - Judge Nealon came down on the side of the consolidation and against bifurcation.  

However, Judge Nealon did rule that separate coverage issues presented with respect to the UIM claim should and would be bifurcated from the liability and damages claims presented in the negligence and UIM matters.  

According to the Opinion, the issue before the court revolved around whether a Plaintiff’s third party liability claim and underinsured motorists (UIM) claim may be tried in a single proceeding before the same jury, and if so, what jury instructions should be provided regarding the named parties and the questions to be decided by the jury.

In this matter, the tortfeasor Defendant was objecting to a consolidated trial with an insurance company as a Co-Defendant.  According to the Opinion, the UIM carrier did not object to a consolidated trial. 

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon ruled that, since the potential liabilities of the tortfeasor and the UIM carrier for damages arose out of the same factual background and involved common questions of law in fact, the Plaintiff’s liability and UIM claims would be consolidated for a single trial pursuant to Pa. R.C.P. 2229(b).  

The court also ruled that, given that the identification of the UIM carrier as a real party in interest and as a potential provider of UIM coverage did not introduce evidence of the tortfeasor’s liability insurance in violation of Pa. R.E. 411, the UIM carrier would be identified to the jury as a named Defendant who was furnishing prospective UIM coverage.  Judge Nealon noted that this identification of the UIM carrier by name as well as the reason as to why that carrier was in the case was necessary so that the jury would understand the participating UIM insurance carrier’s status as an adverse party to the Plaintiff.  

As noted above, Judge Nealon separately ruled that the UIM coverage dispute involving the Plaintiff’s residency and her entitlement to UIM benefits from the UIM carrier did not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages disputes.  Accordingly, the court ruled that the trial would be bifurcated on that separate issue pursuant to Pa. R.C.P. 213(b).  The court noted that the jury would first address the merits of the Plaintiff’s personal injury claims and render a verdict on the liability and damages issues.  

Judge Nealon went on to note that, if the jury awarded damages in excess of the tortfeasor’s liability insurance policy limits, such that UIM coverage was triggered, the second phase of trial would be conducted on the coverage issue to determine whether the Plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under that UIM policy at issue.

Judge Nealon further noted that, in the event a jury awards damages in an amount less than the tortfeasor’s liability insurance limits, the issue of the Plaintiff’s residency and the applicability of her grandparents’ UIM coverage would be rendered moot.

In his thorough Opinion on the issue of joinder or bifurcation of post-Koken claims at trial, Judge Nealon confirmed that he had reviewed the law of other jurisdictions in this case as well as in his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5^th 17 (C.P. Lacka. Co. 2011 Nealon, J.), which research revealed that of the decisions on the separate, but similar, issue of consolidation/severance at the commencement of the case arising out of 33 other states, 27 jurisdictions allowed for the joinder of UM/UIM claims with civil actions against tortfeasors, while six (6) states favored severance of UM/UIM claims from tort actions.  

In ruling that liability in UIM claims may be joined for a single trial, Judge Nealon relied in part on the Pennsylvania Superior Court decision in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).

 

On the separate issue of the content of the jury instructions for a Post-Koken trial, the Plaintiff requested the court to utilize those instructions Judge Nealon had crafted in his prior decision in the case of Moritz v. Horace Mann Property and Casualty Insurance Company, 2014 W.L. 5817681 (C.P. Lacka. Co. 2014 Nealon, J.).  The court noted that Allstate objected to certain portions of those jury instructions set forth in the Moritz case.  

The tortfeasor Defendant was additionally arguing that neither the identity of the UIM carrier as a party, nor the question of the Plaintiff’s UIM claims, should be disclosed to the jury in the jury instructions.  

Judge Nealon agreed that the entirety of his proposed jury instructions as crafted in the Moritz case should not be read to the jury in this matter as the jury instructions drafted in the Moritz case were “appropriate only a case in which the Plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits.”  

For this reason, Judge Nealon agreed to somewhat limit the extent of his jury instructions in this case involving both a negligence claim against the third party tortfeasor and a UIM claim against the Plaintiff’s own carrier.  The court also tailored its jury instructions in this matter in light of the separate coverage dispute that was still pending with regards to the potential UIM claim.  

Overall, Judge Nealon agreed that the jury instructions in this matter should not reference the existence or amount of the tortfeasor’s liability insurance coverage as that would prejudice the tortfeasor in violation of the mandate under Pa. R.E. 411 prohibiting any reference to a tortfeasor's liability coverage at trial.  

In this Kujawski case, Judge Nealon stated that he would instruct the jury that the Plaintiff was required by law to establish by a preponderance of the evidence that the tortfeasor was negligent, that the tortfeasor’s negligence caused harm to the Plaintiff, and that the Plaintiff suffered damages as a result of her injuries.  

The court noted that the jury would also be informed in this Post-Koken matter that the policy of the UIM carrier (referenced by name in the instructions) provided underinsured motorists coverage, which may be available to pay some of the damages that may be awarded. 

Judge Nealon also planned to instruct the jury that the UIM carrier (again, referenced by name) should not be treated “any differently than any other Defendant in a civil action simply because [name of the UIM carrier] is an insurance company.”  

Judge Nealon also ruled that, given his ruling in favor of bifurcation on the separate coverage issue, the jury would also be advised that, depending upon its verdict at the conclusion of the liability and damages portion of the trial, the jury may be required to hear additional evidence and render a second verdict with regards to the Plaintiff’s residency at the time of the accident.    

Anyone wishing to review this Opinion may click this LINK. 

I send thanks to Attorneys Chad DeFelice and Joseph Pulcini, Jr. of the Bethlehem, PA office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.

Monumental Opinion on Post-Koken Trial Jury Instructions From Judge Terrence R. Nealon of Lackawanna County

In his recent decision in the case of Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.), Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial.  

In what appears to be the first reported decision on the issue, Judge Nealon set forth the instructions that he would provide to the jury in a UIM jury trial.  

According to the Opinion, the defense wanted minimalist instructions to the jury that this matter involved an admitted liability accident for which the jurors were to decide the amount of damages recoverable.   In contrast, the Plaintiff was requesting some explanation of the UIM coverage and claims presented.  

Judge Nealon noted that there are no standard jury instructions for UIM trials that have been promulgated to date.  Accordingly, he reviewed jury instructions from other states and then formulated his own instructions.  

Judge Terrence R. Nealon
Lackawanna County

In so ruling, Judge Nealon referred to his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5^th 17, 44 (C.P. Lacka. Co. 2011, Nealon, J.) for the proposition that not only made Pennsylvania trial courts join and try tort UIM claims in a single action without running afoul of Pa. R.E. 411, pertaining to “Liability Insurance,” and that a trial court may consider evidence of insurance as being offered for another purpose under Rule 411 such that a UIM carrier was allowed to be identified to the jury and the tort and UIM issues could be tried jointly as guided by “carefully crafted instructions to the jury.”  

Judge Nealon noted that the Pennsylvania Superior Court more recently addressed the application of Pa. R.E. 411 in a jury trial where a liability and UIM claim are joined for a single trial and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of…. Rule 411” in such a trial.  Moritz, citing  Stepanovich v. McGraw, 78 A.3d 1147, 1150 (Pa. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).  

In Moritz, Judge Nealon stated that he would instruct the jury, as follows:

(1)  Plaintiffs have brought this action against their own insurance company under coverage known as underinsured motorist coverage, which served to provide compensation to a Plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the Plaintiff’s damages from an accident;

(2) To recover against the Defendant, the Plaintiff must prove that the other driver was negligent, that the negligence caused harm to the Plaintiff, and that the other driver did not have adequate liability insurance;

(3) The Defendant had stipulated that the Plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy;

(4) The Defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the Plaintiff suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the Plaintiff;

(5)  The fact that the Plaintiffs are suing the Defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the Plaintiff;

(6) The Plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the Plaintiffs have already received from the other driver and her insurer;  and,

(7)  The jury should determine an amount of money damages that will fairly and adequately compensate the Plaintiff for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the Plaintiff may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award.  

 

In his Opinion, Judge Nealon went on to more specifically apply the above to the facts of the case presented in terms of the jury instructions to be provided.  

 

The Moritz decision by Judge Nealon is also notable with respect to a Motion In Limine filed by the Plaintiff seeking to introduce evidence that the same insurance company paid for the  Plaintiff’s total treatment and surgery under the first party medical benefits coverage as a means of rebutting the carrier’s argument, as a UIM Defendant, that the Plaintiff’s shoulder injury and surgery were not accident related.

The court sustained the UIM carrier’s objections to that evidence and ruled it inadmissible.   In support of this ruling, Judge Nealon relied upon the case of Pantelis v. Erie Insurance Exchange, 890 A.2d 1063 (Pa. Super. 2006).  

In Pantelis, the same argument was raised by the Plaintiff.  However, the Superior Court noted that “[t]he statutory framework and applicable case law establishes that payment of UM/UIM claims is subject to a different analysis then payment of first party benefits.”  Pantelis, 890 A.2d at 1068.  

Accordingly, the Pantelis court ruled that “the trial court directly determined that  payment of first party benefits does not preclude an insurer and later denying third party UM/UIM benefits” since “an insurer’s payment of first party benefits does not, without more, constitute a binding admission of causation under either the statute or case law.”  Id. at 1067-68.   Judge Nealon cited a number of other federal courts reaching the same conclusion.  

Judge Nealon also ruled that, even if this evidence is found to arguably be relevant, its probative value was outweighed by the danger of unfair prejudice since the admission of that evidence could sway the jury to render a verdict on an improper basis.   The court noted that the admission of the fact that the insurance company had paid medical expense benefits could be equally prejudicial to both the injured party Plaintiff and the insurance company Defendant.  For example, the jury could conclude that those medical expense payments, like the payment that the Plaintiff already received from the liability carrier, should likewise be deducted from its award of damages and thereby reduce its verdict without prompting or suggesting by the court.  

As such, Judge Nealon denied the Plaintiff’s request to utilize the evidence at issue. 

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may utilize the above Westlaw citation or click this LINK.

It is noted that the prevailing Plaintiff's attorney in this Moritz case is Attorney John Mulcahey of the Scranton office of the Munley Law Firm.

Vehicles Traveling in Same Direction Are Not Static Objects Under Sudden Emergency Doctrine

In its recent decision in the case of Drew v. Work, 2014 Pa.Super. 137 (Pa. Super. June 30, 2014 Shogan, J., Olson, J., and Wecht,J.)(Op. by Olson, J.), the Pennsylvania Superior Court provided one of its latest decisions on the application of the sudden emergency doctrine in a motor vehicle accident case. 

 

In this case, the Plaintiff testified that the Defendant’s vehicle clipped the Plaintiff’s vehicle while the Plaintiff was passing.   The Defendant testified, instead, that the Plaintiff cut off the Defendant’s vehicle.  

 

At trial, the Plaintiff’s requested Points for Charge on negligence per se related to the Defendant’s alleged unsafe departure from his lane, as well as a request for instructions on the sudden emergency doctrine.  

 

The trial court rejected jury instructions on both charges after deeming the Defendant’s vehicle to be a “static object” since both vehicles were traveling in the same direction.  

 

The jury returned a defense verdict finding the Defendant 40% negligence and the Plaintiff  60% negligent.  

 

On appeal, the Plaintiff argued, in part, that the trial court erred in not providing any requested jury instructions on per se negligence and the sudden emergency doctrine. 

 

The Pennsylvania Superior Court rejected the trial court’s determination that the fact that both parties’ vehicles were traveling in the same direction meant that the Defendant’s vehicle was a “static object.”   The court found that such an analysis to be too rigid of an application of the “static object” and “clear distance ahead” rules.  

 

To the contrary, the Pennsylvania Superior Court stated that the Plaintiff was entitled to an instruction on the sudden emergency doctrine under the four part standard of that doctrine, i.e., (1) an individual suddenly and unexpectedly finds himself or herself confronted with a dangerous situation, (2) that permits no opportunity to assess the danger, (3) and that such a person is entitled to the application of the doctrine if he or she responds appropriately, and (4) where the person invoking the doctrine proves that he or she did not create the emergency.

 

The Superior Court noted that, in the case before it, the testimony supported the jury instruction as there was evidence that the Defendant unexpectedly presented the Plaintiff with a dangerous situation that the Plaintiff responded to appropriately, and where the Plaintiff did not create or contribute to the emergency.

 

The Superior Court also ruled that the trial court erred in not providing the jury instruction on the per se negligence rule given that there was evidence to support such a jury instruction.   

Anyone wishing to review this decision may click this LINK.

Source:  "Case Digests."  Pennsylvania Law Weekly (July 8, 2014).