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

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

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

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

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

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

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

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

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

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

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

Superior Court Affirms Entry of Defense Verdict Even Though Defendant's Answer to Complaint Was Stricken Prior to Trial

In the case of Derbyshire v. Jefferson Frankford Hospital, No. 1409 EDA 2023 (Pa. Super. Dec. 20, 2024 Olson, J., Stabile, J. and Colins, J.) (Op. by Stabile, J.), the Superior Court found that a trial court judge did not commit any error in post-trial proceedings by denying a Plaintiff’s Motion for a New Trial limited to the issue of damages.

This matter arose out of a slip and fall event.

According to the Opinion, prior to the trial in the underlying matter, a motions court judge had stricken the Defendant’s Answer to the Complaint with prejudice due to untimeliness under Pa. R.C.P. 1029(b).

Later, another judge who presided over the trial, refused the Plaintiff’s request to direct the jury to find in the Plaintiff’s favor on the issues of negligence and causation and, instead, allowed these issues to go to the jury.

The jury then returned a verdict in favor of the Defendant on the issue of causation and awarded zero damages.

The Superior Court held that, while the Defendant’s failure to answer the Complaint resulted in a deemed admission of the facts alleged in the Plaintiff’s Complaint, at trial, the Plaintiff still had a burden to prove a legal causal connection between the Defendant’s alleged negligent conduct and the Plaintiff’s alleged damages. In its ruling, the Superior Court noted that, since the jury found the Defendant negligent, the Plaintiff suffered no prejudice from the trial court’s refusal to deem that issue admitted. The Superior Court therefore focused its attention on the issue of causation.

In ruling in the manner it did, the Superior Court found a 1984 decision from the Supreme Court of Texas to be persuasive. That court in Texas had concluded that a plaintiff who obtains a default judgment in a personal injury matter must still prove damages apart from the deemed admission of liability. 

Here, in this Derbyshire case, the court found that the striking of the Defendant’s Answer and New Matter resulted in a deemed admission of all facts but only an admission of “liability” by the Defendant. 

The Superior Court ruled that the Plaintiff still had to proceed to trial on the issue of damages and, in this regard, the Plaintiff had a burden to establish that the Defendant’s conduct caused the Plaintiff’s damages. 

As noted, in this case, the jury was not convinced that the Plaintiff’s alleged damages were related to the Defendant’s negligent conduct.

The Superior Court ruled that, based upon a review of the evidence in the record, it was within the jury’s prerogative to award zero damages.

Accordingly, the Superior Court ultimately ruled that the trial court did not err in denying the Plaintiff’s Post-Trial Motions seeking a new trial on damages.

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

Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).

Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Source of image:  Photo by Blue Bird on www.pexels.com.

No Medical Expert Testimony Needed To Establish Causation Where Causal Relationship is Obvious

In the case of Bixler v. Lamendola, No. 3:20-CV-01819-CCC (M.D. Pa. July 5, 2022 Connor, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case after finding that expert medical testimony was not required to establish causation given that the driver’s testimony would allow the jury to infer that the claimed injuries resulted from the accident.

According to the Opinion, at the time of the accident, the Plaintiff was driving an empty tractor trailer at a speed of approximately 45-50 mph when the Defendant, who was traveling in from of the Plaintiff in the same direction, attempted to make a U-turn. More specifically, the Defendant’s vehicle moved towards the right side of the road and/or the right shoulder and then, as the Plaintiff’s vehicle approached, the Defendant pulled back onto the road and attempted to turn his vehicle into the opposing lane of travel. The Plaintiff was unable to avoid a collision which occurred while the tractor trailer was still moving at about 25-30 mph.

It was noted that the vehicle that the Plaintiff was operating at the time of the accident was rendered inoperable for about four (4) months following the accident due to the damages sustained.

The Plaintiff testified that, although he was wearing a seat belt at the time of the accident, he believed he struck parts of the interior of his vehicle because he had a bump on his head as well as bumps and bruises on his knees and arm. The Plaintiff did admit that he did not immediately notice any pain and declined medical treatment at the scene of the accident. 

Approximately two (2) days later, the Plaintiff began to experience left hand numbness and then sought out medical treatment with his family doctor the day after that at which point he was referred to a neurologist and then began to treat on a continuing basis thereafter.

Post-accident diagnostic tests including x-rays, an MRI, and a nerve test lead the neurologist to diagnose the Plaintiff with a bulging disc in his neck, causing a pinched nerve, which was noted to explain the complaints of left hand numbness.

During the course of the matter, the Defendant filed a Motion for Summary Judgment arguing, in part, that the Plaintiff's failure to produce an expert medical opinion on causation defeated the Plaintiff's claim. 

The court cited to the law of Pennsylvania generally requiring expert medical opinion testimony to prove causation in personal injury cases. 

However, the court noted that expert opinion is not required if there is an obvious causal relationship between the alleged negligent act and the injury complained of. The court stated that a causal relationship is “obvious” if the injury is “either an ‘immediate and direct’ or the ‘natural and probable’ result of” the alleged negligence.

The court further noted that, in those cases in which expert testimony is not required, there are typically two common traits, that is, (1) the Plaintiff began to exhibit symptoms of the injury immediately after the accident or within a relatively short time thereafter, and (2) the alleged injury is the type that one would reasonably expect to result from the accident in question.

The court applied that law to this case and held that the record revealed facts under which expert medical testimony on causation was not required. As such, the Defendant’s Motion for Summary Judgment in this regard was denied as a jury could easily find that the Plaintiff’s injuries were the natural and probable consequence of the accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Plaintiff's Vehicle Need Not Have Been Actually Impacted by Defendant's Vehicle To State A Valid Claim of Negligence in Chain Reaction Accident

In the case of Sutcliffe v. Bernese, No. 4:19-cv-00317 (M.D. Pa. Aug. 12, 2019 Brann, J.), Judge Matthew W. Brann, denied a defendant’s Motion to Dismiss in a multi-vehicle accident case.  The court ruled that liability in a multi-vehicle accident situation does not require that the plaintiff’s vehicle have actually been impacted by the Defendant’s vehicle. 

In this matter, it was asserted by the defendant tractor trailer driver that his actions did not factually cause the plaintiff’s alleged injuries in this multi-vehicle accident during which numerous vehicles hit the plaintiff’s vehicle.   This particular defendant asserted that, because his tractor-trailer never came into contact with the plaintiff’s vehicle, that defendant could not be found to be a factual cause of the plaintiff’s injuries or damages.  

Judge Matthew W. Brann
M.D. Pa.

However, Judge Brann found that the Complaint alleged sufficient facts to state a claim that, but for this tractor-trailer’s alleged negligent collision with another tractor-trailer, the plaintiff would not have traveled into the left lane to avoid that collision, resulting in the subsequent collision with her vehicle by the other defendants.  

Given that the court felt that the plaintiff had pled sufficient facts both on factual and proximate causation issues, this Motion to Dismiss was denied. 

The Memorandum Opinion issued by Judge Brann can be viewed at this LINK.  The Court's companion Order can be viewed HERE.

Summary Judgment Entered In Negligence Action Where Plaintiff Precluded From Offering Evidence Due to a Discovery Sanctions Order

In the case of Johnson v. Milewski Towing, No. 15 - CV - 1372, 2019 WL 1302459 (C.P. Lacka. Co. 2019 Nealon, J.), the court addressed a Motion for Summary Judgment filed by a Defendant after a discovery sanctions Order had been previously entered by another judge on the same bench barring the Plaintiff “from offering evidence at the trial of this matter.”   

According to the Opinion, this matter arose out of a single vehicle accident after which there was an altercation between the Plaintiff and the driver of the Defendant's tow truck.

The court reaffirmed the general rule that, in negligence matters, unless the causal connection between the Defendant’s alleged negligence and the Plaintiff’s alleged harm is so obvious as to be within the common knowledge of the average juror, expert medical testimony is required to establish causation.

Due to the sanctions Order and the Plaintiff’s continuous failure to respond to his attorney’s request for information, the Plaintiff was found to be unable to produce sufficient evidence to establish all of the elements of the negligence cause of action.  

As a result, the court ruled that the Defendant was entitled to judgment in its favor. Accordingly, the Motion for Summary Judgment. 

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

Failure to Produce Object that Allegedly Caused Injury Results in Summary Judgment

In the case of Swartwood v. Denny’s Restaurant, No. 9983 of 2016 (C.P. Luz. Co. Nov. 21, 2018 Polachek-Gartley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that he suffered severe dental injuries and damages from a foreign substance or particle that was in his breakfast that he had purchased from the Defendant.  

According to the record before the court, the Plaintiff indicated that he was eating breakfast with his son when he felt something in his mouth that felt like hard plastic.   The Plaintiff asked his son to look into his mouth what it was but his son was unable to see anything.

The Plaintiff then went to the bathroom and saw that a tooth was hanging.   The Plaintiff left Denny’s and went immediately to a dentist for treatment.

The Plaintiff did not know what happened to the alleged piece of plastic and opined that he may have swallowed it or spit it out.   The Plaintiff also asserted that he did not have any problems swallowing it or possibly later passing it.  

The court additionally noted that the Plaintiff could not describe what color the object was and had only testified that it felt like a little, hard chip.   The Plaintiff additionally admitted that he was not able to isolate the piece of plastic in his mouth with his tongue.  

The court also noted that the Plaintiff did not tell anyone at Denny’s about the broken tooth before he left the restaurant.   It was also confirmed that his son did not tell anyone.   After the Plaintiff went to the dentist and his tooth was repaired, he then returned to Denny’s in order to explain what happened.  

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to meet his burden of proof of negligence due to the Plaintiff’s failure to produce the piece of plastic or the foreign object alleged to have been in the food.  

In granting the Motion for Summary Judgment, the court noted that the Plaintiff not only failed to produce the foreign object for inspection, but the Plaintiff never even saw the item himself and was unable to describe it with any particularity.   

Judge Tina Polachek-Gartley
Luzerne County
 

Judge Polachek-Gartley noted that the Superior Court has held that permitting claims of potentially defective products to proceed where the consumer throws the product away after an accident would encourage false claims and would make the defense of the same more difficult and would potentially put a Plaintiff in a position of deciding whether to keep the item based upon whether that retention of the product would help or hurt the Plaintiff’s case.  

The trial court in this Swartwood case found that the Defendant was prejudiced by the fact that the object cannot be examined and given that the defense had no opportunity to address whether or not this piece of plastic or foreign body originated from its own kitchen or was a product from the food supplier. 

The court additionally noted that the Defendant did to present any medical evidence or records that connected the object to the broken tooth.

There was no evidence that a foreign substance or object likely caused the tooth injury.   Nor was any circumstantial evidence presented in this regard. Given that the facts placed on record by the Plaintiff were found to be insufficient to make out a prima facie cause of action for negligence against the Defendant, the court found that there was no issue to be submitted to the jury and, therefore, the Defendant’s Motion for Summary Judgment was granted.  

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

I send thanks to Attorney Ann O. Farias of the Plains, Pennsylvania branch of the Law Offices of Lester G. Weinraub/Nationwide In-house for bringing this case to my attention. 

No Liability for Slip and Fall that Occurs During Snowstorm

In the Monroe County Court of Common Pleas case of Smith v. Riverside Rehab Center, No. 1146 - CV -2017 (C.P. Monroe Co. Oct. 9, 2018 Zulick, J.), the court found that the Plaintiff failed to establish a prima facie case of negligence in this slip and fall matter given that the hills and ridges doctrine served to prevent the Plaintiff’s recovery and since the Plaintiff provided no expert medical opinion on the issue of causation.   

The Plaintiff allegedly fell when he slipped while walking up a ramp to the entrance of the Riverside Rehabilitation Center.  

After discovery, the Defendants filed a Motion for Summary Judgment asserting, in part, that they were entitled to summary judgment based upon the hills and ridges doctrine.   

The court reiterated general rule of law that, under the hills and ridges doctrine, landowners are protected from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the snow and ice to unreasonably accumulate in ridges or elevations.  

Judge Arthur L. Zulick
Monroe Co.

In this matter, Judge Zulick found that liability was not established under the hills and ridges doctrine. The record revealed that a severe snowstorm had begun as the Plaintiff traveled to the Riverside Rehabilitation Center.   Evidence presented to the court indicated that the snowstorm was continuing when the Plaintiff arrived at the center and slipped and fell while going into the center.  

As such, the court found that the record established that there was no evidence presented which otherwise indicated that any of the Defendants allowed hills or ridges or snow or ice to unreasonably accumulate.   To the contrary, the court found that the case presented as involving a slippery ramp created by an ongoing storm.  As such, summary judgment was granted on this basis.

The Defendants’ Motion for Summary Judgment was also granted on the basis that the Plaintiff failed to provide a report by a medical expert on the issue of causation.   The court had previously directed the Plaintiff to produce a medical expert report, which the Plaintiff failed to do.  

The court agreed with the defense contention that the Plaintiff was unable to prove factual causation of the injuries allegedly sustained as a result of the slip and fall event.  In this matter, the Plaintiff had a complicated history of both pre-existing and subsequent injuries.   One of the subsequent incidents occurred only two (2) weeks after the subject slip and fall event.   The Plaintiff had allegedly struck his head in both the subject slip and fall incident as well as during the subsequent accident a few weeks after the slip and fall event.  

Moreover, the defense produced a report from the Plaintiff’s doctor indicating that the Plaintiff’s alleged trauma was related to the injuries sustained during the Plaintiff's more recent incident.  

The record also revealed that the Plaintiff was involved in a motor vehicle accident approximately two (2) months after the slip and fall event.   Other evidence showed that, in the following year, the Plaintiff sustained yet another head injury.  

Given this complicated medical history, the court concluded that the Plaintiff was required to produce expert medical testimony to prove causation with respect to the injuries alleged to have resulted from the slip and fall event at the Riverside Rehabilitation Center.   The court noted that the Plaintiff did not comply with the court’s Case Management Order requiring the production of a medical expert report within a certain deadline and the Plaintiff offered no excuse for failing to do so.

Based upon these reasons, the court granted the summary judgment motion.  

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

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (Nov. 13, 2018).  

Request for New Trial Denied Where Defendant Driver Found Negligent But Jury Found Causation Element Not Met in Fatal MVA Case

In the case of Steudler v. Keating, No. 8795 - CV - 2013 (C.P. Monroe Co. March 20, 2018 Williamson, J.), Judge David J. Williamson ruled that Plaintiffs were not entitled to a new trial based upon the jury’s failure to find causation even though it found the Defendant driver negligent in an auto accident case. 

The court ruled in this fashion after finding that it was possible for the jury to determine that the Defendant was negligent but that his negligence was not the factual cause of a fatal accident.  

According to the Opinion, the Plaintiffs, Erika Steudler and Victor Resto, were walking along a road in Monroe County when Resto was struck by a motor vehicle driven by the Defendant.  

The court noted that the accident occurred at night on a country back road with no street lighting.   Neither Plaintiff was carrying a flashlight at the time of the accident.  

Plaintiff Steudler did not see the accident but felt Resto brush against her the darkness when he was thrown in the air.  

Steudler filed a lawsuit against the Defendant seeking emotional damages due to witnessing the accident while Resto’s estate filed a wrongful death claim.

As noted, the matters proceeded to trial where the jury found the Defendant negligent but also found that his actions were not the factual cause of the Plaintiffs’ injuries.  

In the post-trial motions, the Plaintiffs asserted that the verdict was against the weight of the evidence and shocking to one’s sense of justice.   The Plaintiffs argued that, because the jury found that the Defendant was negligent, the jury should have found that he was also the factual cause of their injuries since it was undisputed that Resto died from the accident.  

The court ruled that a verdict is not against the weight of the evidence simply because the evidence at trial was conflicting or that a reasonable fact-finder could have decided the case in favor of either party.  

The trial court distinguished this case from the line of cases which suggest that when a Defendant is found negligent and both parties admit that there was some injury, then the Defendant must be found to have caused at least some portion of the injuries alleged.   Here, the court noted that the most distinguishable factor between that line of cases and this case was the issue of the Plaintiffs’ contributory negligence.   The court noted that, in the line of cases cited the Plaintiffs, the Defendants had admitted negligence and there was no difference in opinion that the Defendants’ negligence had caused those accidents, which cause some personal injury.  

In the Steudler matter, the Defendant never admitted negligence and there were claims of contributory negligence pursued.   The defense argued that the sole cause of the accident was the Plaintiffs’ own acts or omissions.   It was the Defendant’s defense that he operated his vehicle within the posted speed limit, stayed within his lane of travel, and never saw the Plaintiffs prior to the impact.  

The court also noted that the parties presented experts with different opinions on the theory of the cause of the accident in this matter.

In the end, the court found that the jury’s verdict in this matter could have been based upon the jury’s belief that Resto was in the roadway, together with Steudler, and that, if he was not, he may not have been struck and killed. 

As such, the court denied the Plaintiff’s request for a new trial under the case presented.

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (April 10, 2018).

Superior Court Gives a Primer on How To Preserve Request for JNOV

In the case of Corvin v. Tihansky, No. 2018 Pa. Super. 91 (Pa. Super. April 20, 2018 Bender, P.J.E., Shogan, J., Strassburger, J.) (Op. by Shogan, J.), the Superior Court affirmed a trial court’s denial of a Plaintiff’s request for a new trial or a judgment notwithstanding the verdict (JNOV) after the jury found that the defendant driver’s negligence in a rear-end accident was not a factual cause of any harm.  

According to the Opinion, the court ruled in this fashion after finding that the Plaintiff waived his JNOV issue where the Plaintiff’s counsel failed to move for a directed verdict, and where the Plaintiff’s counsel withdrew his request for a binding jury instruction. 

The court additionally noted that the jury's verdict may have been supported by the fact that the Plaintiff’s allegedly concealed of his pre-accident chiropractor visits from his own physicians which  presented the jury with an issue of credibility. 

The court also noted that one of the Defendant’s experts also offered an opinion that the Plaintiff had not been injured in the subject accident.  

The Superior Court found that there was no abuse of discretion in the trial court’s refusal to substitute its judgment for that of the jury with respect to the Plaintiff's request for a new trial.  

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (May 8, 2018).  

Expert Testimony Required to Proceed on Malpractice Claim Against a Physical Therapist

In the case of Bassill v. Main Line Hospitals, Inc., No. 16-01575 (E.D. Pa. Jan. 11, 2018 Pappert, J.), the Eastern District Federal Court of Pennsylvania entered summary judgment in favor of a Defendant after finding that a claim of negligence against a physical therapist involves a claim for professional negligence for which expert testimony is required to establish the standard of care for the jury.  

In this decision, the court also noted that expert testimony establishing causation is also mandatory under Pennsylvania law.  

Given the pro se Plaintiff’s failures in this regard, the court granted summary judgment in favor of the defense. 

The Bassill court's Opinion can be viewed HERE.  The accompanying Order can be viewed HERE

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

Judge Nealon of Lackawanna County Tackles Numerous Asbestos Litigation Issues

In his recent 71 page Opinion in the case of Horst v. Union Carbide Corp. et al., No. 15 CV 1903 (C.P. Lacka. Co. April 27, 2016 Nealon, J.), Judge Terrence R. Nealon tackled a variety of issues raised in motions for summary judgments filed by twelve different defendants.

The Opinion contains useful nuggets of analysis addressing unique case law establishing special standards for medical causation, lay opinion testimony, the statute of repose, and punitive damages in asbestos litigation.

Anyone wishing to review this Horst decision may click this LINK.

Law Applicable to Chain Reaction Car Accidents Reviewed

In the motor vehicle accident case of Jaurez v. Friess, No. 13-145 (W.D. Pa. Feb. 3, 2016 Conti, J.), the West District Federal Court denied summary judgment in a chain reaction motor vehicle accident case. 

In so ruling, the court reviewed the law pertaining to joint tortfeasors as well as the law of causation. 

Applying the law to the case before it, the court in Jaurez stated that, in a multi-vehicle collision, liability can still potentially be found on all involved, including with respect to vehicles that did not collide with each other under their own power, but rather, were pushed into one another.   Stated otherwise, the court ruled that it cannot be said, as a matter of law, that just because two vehicles did not collide with one another under their own power, that those operators were not liable.  The court noted that the causal negligence of those operators may be inferred from those motorists bringing their vehicles too close to one after which a third party to smash them together.  

Based upon these issues presented by the facts before the court, summary judgment in favor of certain defendants was denied.

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 Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog (Click HERE to check out Attorney Beck's blog).  

Judge Williamson of Monroe County Addresses Necessity of Expert Testimony in Support of Negligence Claim

In his recent decision in the case of S&S Family Partnership v. William H. Lane, Inc., No. 7858 - CV - 2007 (C.P. Monroe Jan. 16, 2014 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed the necessity of a Plaintiff producing expert testimony in support of its negligence claim in order to be able to proceed beyond the motion for summary judgment stage and to trial.

The Plaintiff in this case owned a restaurant that sustained runoff water damage as a result of a nearby drainage basin that was allegedly constructed and maintained by the defendants.

The Defendants filed a Motion for Summary Judgment on the grounds that the Plaintiff had failed to produce any expert opinion on the issues of negligence and causation.  The Defendants asserted that where engineering or professional negligence was alleged, a plaintiff must produce expert testimony to support such claims.

The Plaintiff's countered with the argument that the claims presented were based on basic negligence principles and were not grounded in any professional negligence claim.  The Plaintiff asserted that allegations against the construction contractor Defendants could be addressed by lay people on the jury in the absence of any expert testimony.



Judge David J. Williamson
Monroe County

While Judge Williamson agreed with the Plaintiff that the claims presented did not amount to a professional negligence claim, the court nevertheless held that the case presented facts and circumstances of alleged negligence and causation pertaining to the design, maintenance, and care of a drainage basin to that would be beyond the ordinary knowledge of the lay people who would make up the jury.

Accordingly, the court ruled that the Plaintiff was indeed required to present expert testimony and the failure to do so resulted in the entry of summary judgment in favor of the Defendants.

Anyone wishing to review Judge Williamson's Opinion in the case of S&S Family Partnership may click this LINK.

It is noted that Attorney Kimberly M. Kostun, special counsel with Scranton office of the firm of Hinman, Howard & Kattell, LLP represented Defendant, William H. Lane, Inc., in this matter.

Federal Middle District Judge Conaboy Addresses Superseding Intervening Cause Issue In MVA Case

In his recent decision in the case of Bushta v. Hilton, Civil Action No. 3:12-CV-473 (M.D. Pa. Oct. 9, 2013 Conaboy, J.), Judge Richard P. Conaboy of the United States Federal Middle District Court of Pennsylvania issued an interesting case regarding the issues of causation and superseding intervening cause.  

According to the Opinion, the subject lawsuit arose out of a two distinct motor vehicle accidents and the Defendants asserted that the Plaintiffs could not satisfy the causation element of the negligence claims against the Defendants based upon the one-vehicle accident that actually involved the moving Defendants.

More specifically, the Plaintiff was a Pennsylvania State Trooper, who was called to assist with traffic on Interstate 81 in New Milford Township, Pennsylvania after the initial accident on Interstate 81 northbound involving a tractor trailer in which Defendant James Hilton was driving.   That accident occurred when Defendant Hilton failed to negotiate a right curve in the roadway, ended up traveling off the roadway, and rolled his tractor trailer onto its side.  
 
The Plaintiff-State Trooper stopped in a middle crossover of the median on Interstate 81 approximately ¾ of a mile to the south of the accident.   The Plaintiff was completely off the roadway.  The Plaintiff remained in his car.  The State Trooper Plaintiff did not put out any flares or sound his siren.  

The Plaintiff-State Trooper was in the crossover of the median for less than five minutes with his overhead red and blue lights on and flashers when his vehicle was struck by a tractor trailer driven by Defendant Winston J. Whitney in the second accident at issue in this matter.  

The court noted in its Opinion that approximately 30 minutes separated the initial accident involving Defendant Hilton, and the second accident involving Defendant Whitney and the Plaintiff.  

It was also noted that the Plaintiff-State Trooper never went to the scene of the accident involving Defendant Hilton and admitted that he knew nothing about that accident and was not part of that investigation.  

The Plaintiff filed a lawsuit against all Defendant drivers involved.  The Defendant, James Hilton, the person involved in the first accident, filed a Motion for Summary Judgment after the completion of discovery.

The moving Defendant asserted that he was entitled to summary judgment because his initial accident was not a proximate cause of the Plaintiff-State Trooper’s injuries.  

The court in this Bushta case provided a detailed description of the basic elements of a cause of action of negligence, including the all-important factor of proximate causation.   The court thoroughly reviewed the numerous factors involved in the determination of proximate causation, including but not limited to, the place of the accident(s), the timely involved, and the particular conduct of the Defendants involved.  

Judge Conaboy also stated that, “[w]hether an intervening act is a superseding cause of the injury which would provide insulation from liability for one whose actions have been determined to be substantial factor in bringing about the harm is governed by Restatement (Second) of Torts §447 (1965).   The court cited the case of Taylor v. Jackson, 643 A.2d 771 (Pa. Cmwlth. 1994).   

Judge Conaboy also noted that the issue of whether proximate cause is for a court or a jury to decide was addressed in Taylor, supra., in which that court stated that “our Supreme Court…observed that determination of whether an actor’s conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonably differ about whether the conduct of the actor has been a substantial factor in causing the harm.”  Id. at 776-777.  Judge Conaboy stated that the Taylor case also confirmed that the issue of whether a third person’s conduct should be considered a superseding/intervening cause of a Plaintiff’s injuries is for a jury to determine where disputed issues of material fact exist.   Id. at 778.

Applying the above law to the record before him, Judge Conaboy ruled that genuine issues of material fact existed to preclude the entry of summary judgment. 

 

Anyone wishing to review this interesting Opinion may click this LINK.

 

I send thanks to Attorney Bruce Zero of the Powell Law Firm in Scranton, PA for bringing this decision to my attention.

Judge Terrence Nealon of Lackawanna County Weighs in on Zero Verdict Issue

In his Opinion handed down on January 28, 2011, in the case of Bulger v. Pennsylvania American Water Company, No. 07 CV 236 (Lacka. Co. 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas weighed in on the somewhat recurring issue of the propriety of a jury entering a zero defense verdicts in negligence cases where both the defense expert and the plaintiff's expert agree that the plaintiff sustained some form of injury.

Some attorneys out there (like myself) may have previously been under the misconception that once a defense IME doctor agrees that the plaintiff has indeed sustained some form of injury, the jury must give some award in favor of the injured party. Not so fast.

By way of background, the Standard Jury Instructions were revised a few years ago to change the causation inquiry on verdict slips to now read whether the defendant's negligence was "a factual cause of the plaintiff's harm" (rather than the factual cause of the "accident" or "fall").

Since that time, in cases where the defense medical expert acknowledges some form of injury, plaintiff's counsel would routinely object to a factual cause inquiry or finding even though the cause of the accident or fall was hotly contested by the defense at trial.

In Bulger, Judge Nealon was faced with this very issue as presented by the plaintiff in in post-trial motions.

In Bulger, Defendant Pennsylvania American Water Company denied that it was liable for the plaintiff's trip and fall event on a residential street. On the liability issues, evidence was offered that not only called the plaintiff's credibility into question but which also showed that the plaintiff had pre-existing medical conditions that left him with blurred vision and even balance issues. It was also established that the plaintiff's incident happened under dark conditions. The Defendant additionally disputed the allegation that it had actual or constructive notice of the the allegedly dangerous condition at issue.

At the conclusion of the presentation of the evidence, the plaintiff's request for a directed verdict on the grounds that the medical experts agreed on an injury or injuries as well as the plaintiff's objections to the verdict slip were all overruled.

The jury went on to enter a defense verdict despite the agreement of the medical experts that the plaintiff sustained some form of injury.

In addressing the plaintiff's post-trial motions, Judge Nealon held that notwithstanding the "harm" wording of the Standard Jury Instructions' causation question, under the current status of Pennsylvania law, the jury was still required decide whether or not the defendant's negligence was the factual cause of the accident/fall as part of its causation analysis and determination. The court ultimately denied the plaintiff's motion for a new trial on this issue.

Judge Nealon's opinion in Bulger provides a nice analysis on the issue and confirms that, where the liability question remains in dispute at trial, the defense can still pursue a defense verdict even where the defense medical expert confirms all or part of the plaintiff's claims of injury.


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

Judge Terrence Nealon of Lackawanna County Court of Common Pleas Issues Interesting Decision on Duty of Care

Judge Terrence R. Nealon issued an interesting decision on July 19, 2010 in the case of David J. Sedor, M.D. et al v. Community Medical Center et al, No. 05 CV 2143 (Lacka. Co. July 19, 2010, Nealon, J.). In this Opinion, Judge Nealon reviewed the relevant factors that governs every duty analysis in a thorough manner and with a writing style that I submit would have made Dean Prosser and Justice Cardozo proud.

This case arose out of an incident during which a noted local neurosurgeon was struck by a hospital bed as it was being pushed through the hallway of a hospital with the gratuitous assistance of an orthopedic implant sales representative. The Plaintiff, Dr. Sedor alleges that his injuries from this event and associated infections required him to eventually undergo a mid-thigh amputation of his right leg.

Judge Robert Mazzoni of the Lackawanna County Court of Common Pleas previously granted the Defendant implants distributor partial summary judgment finding that it could not be found vicariously liable for the actions of the sales representative as a master-servant was not established in that regard.

The latest Opinion, from Judge Nealon, addressed the implants distributor's follow-up motion for summary judgment which asserted that the Plaintiff was also unable to establish the duty and causation elements of a negligence cause of action for direct liability.

Judge Nealon reviewed in great detail the five factors involved in the question of whether a duty exists in a particular case: (1) the relationship between the parties; (2) the social utility of the defendant's conduct; (3) the nature of the risk and the foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the defendant; and (5) the overall public interest in the proposed solution.

The application of the above factors to the case at hand led Judge Nealon to conclude that the record did not support any finding that the implants distributor had any duty to instruct an independent contractor's sales representative who was involved in the incident to refrain from handling another party's equipment. More specifically, the Court found that the Plaintiff neurosurgeon had not established that the distributor owed a duty to train a non-employee not to handle or transport beds in a hospital as alleged in the Complaint.

As such, the motion for summary judgment filed by the implants manufacturer and distributor was granted.


Anyone desiring to read a copy of this interesting Opinion may contact me at dancummins@comcast.net

Recent Automobile Law Cases of Note

The following recent automobile law cases of note were identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. Copies of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below:

Proximate Causation in Chain Reaction Accident

Ensor v. Slaybaugh, PICS Case No. 09-1474 (C.P. Centre Aug. 20, 2009) Kistler, J. (6 pages).
This case involved a multi-vehicle chain reaction accident. The Plaintiff was stopped in his vehicle waiting to make a left at an intersection. Defendant Slaybaugh was stopped right behind the Plaintiff, in close proximity to the rear of the Plaintiff's vehicle. The Co-Defendant, Engleman, then came along and struck Defendant Slaybaugh's vehicle in the rear, propelling it into the Plaintiff's vehicle. The Plaintiff sued both Defendants.

Defendant Slaybaugh, the operator of the middle vehicle moved for summary judgment, arguing that he had done nothing wrong.

The court held that a driver has no duty to stop his car at a traffic light far enough from the car in front of him to avoid the possibility of a telescopic accident, one in which being struck from behind drives one’s car forward into another vehicle in front. As such, the court granted summary judgment to Defendant Slaybaugh in this case.

The court noted that the Plaintiff argued that this case was analogous to the famous decision by Justice Cardozo, studied by all in law school regarding proximate causation--Palsgraf v. Long Island Railroad Co., 162 N.E.99 (N.Y. 1922). However, the court in Ensor rejected this argument by noting that the Plaintiff failed to understand that Justice Cardozo ruled that where there is a causal chain that was too attenuated, there was no proximate cause. Here, too, no such proximate cause was found to exist.

That is, Defendant Slaybaugh's actions of bringing his vehicle to a stop very close to the rear of the Plaintiff's vehicle without striking the Plaintiff's vehicle could not be said to have been a proximate cause of the Plaintiff's injuries when Defendant Slaybaugh's vehicle was propelled into the rear of the Plaintiff's vehicle by the negligence of another driver. Accordingly, the court granted summary judgment.

Anyone wishing to review this decision may click this LINK.


Subrogation

City of Wilkes-Barre v. Sheils, PICS Case No. 09-1445 (3d Cir. Aug. 25, 2009) Smith, J. (14 pages).
This case involved a police officer who was injured in 1996 when a Luzerne County vehicle struck his cruiser. He was unable to return to work for nine years, during which he drew benefits under the Heart and Lung Act. He also sued Luzerne County for the injuries he suffered, and during the pendency of that action filed a Chapter 7 bankruptcy action.

In 2005, the Middle District of Pennsylvania approved a settlement of the personal injury action, after which the city sought subrogation, or a pay back, of the benefits it had paid to the injured police officer. The Bankruptcy Court rejected the city's subrogation claim, and the Middle District Court agreed on the grounds that the city’s right of subrogation was barred by the Motor Vehicle Financial Responsibility Law (MVFRL).

In this decision, the Third Circuit Court of Appeals vacated the lower court's decision and remanded the case for further proceedings. The Court analogized Heart and Lung Benefits as being similar to Worker's Compensation Benefits. Given that the Motor Vehicle Responsibility Law allowed for subrogation of Worker's Compensation Benefits, the Third Circuit ruled that Pennsylvania law likewise should be construed to allow for an employer to assert his subrogation rights in the Heart and Lung Benefits context.

Accordingly, the Third Circuit has ruled that an employer may seeking to recover, or be paid back, from the plaintiff's verdict or settlement those payments the employer previously paid out under the Heart and Lung Act as a result of the accident.

It therefore follows, under Sections 1720 and 1722 of the Motor Vehicle Financial Responsibility Act, that a plaintiff may plead and present at trial the dollar amount of such benefits he or she received in an effort to convince the jury to award that additional amount to its verdict.

Status of the Prohibition of the Seat Belt Defense in Pennsylvania

Seat Belt Defense Ban Wearing Thin

A Superior Court panel upholds the ban but illustrates its weaknesses

By Daniel E. Cummins
Special to the Law Weekly
DanCummins@comcast.net

Although a Superior Court panel in Gaudio v. Ford Motor Co., PICS Case No. 09-0927 (June 1, 2009), voted 2-1 to uphold the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e), the constrained tone of the majority opinion -- and the strong dissent by Senior Judge James J. Fitzgerald -- can be viewed as another assault on what had been previously viewed as an ironclad ban on use of the defense in civil litigation matters.

Gaudio involved a strict products liability action in which the plaintiff attempted to prove that the vehicle's airbag system was defective and caused the plaintiff's decedent's injuries in a single-car crash. During the accident, the decedent's vehicle slid off a road and landed in a ditch. The unbelted decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford Motor Co. defended the case by asserting that the airbag system was not defective and that the decedent's injuries were caused by other pre-accident factors including the fact that the decedent was not wearing his seat belt, was unnecessarily closer to the steering wheel, and was also reaching down to the floor area at the time the airbag was deployed.

The trial court, in an opinion issued by Pike County Common Pleas Judge Harold A. Thomson Jr., acknowledged the general legislative prohibition against mentioning a plaintiff's non-use of a seat belt during a civil trial. However, the trial court judge, striking a blow against the rarely questioned prohibition against the seat belt defense, held that defendants should be allowed to use the defense in very limited circumstances, such as the Gaudio case, where the plaintiff was seeking a monetary recovery in a matter where the issue of the lack of seat belt use by the injured party was a key factor in the resolution of the central question of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of a plaintiff, it could perhaps be used for other limited purposes relevant to the case.

Thomson's decision was originally analyzed in my Oct. 1, 2007, Pennsylvania Law Weekly column titled "Time to Unbuckle the Seat Belt Defense?" That article noted Thomson's finding that the seat belt defense should be allowed in a limited fashion in certain cases "raises a question as to the continuing validity of the legislative bar against the use of the 'seat belt defense' in all civil matters."

In that previous article, it was also proposed that, in this day and age, now over 20 years after the seat belt law went into effect in 1987, the time had come to allow for the seat belt defense as an additional incentive to those last remaining non-compliant drivers to use seat belts, particularly given all of the scientific evidence existing today confirming that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

However, the previous article concluded with the notion that, in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared that the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

A Constrained Superior Court

As anticipated, the judges in the majority of the Superior Court's decision in Gaudio opted to follow the letter of the law of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The majority in Gaudio also noted that it was not a proper function of the court to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the majority opinion, including the emphasis that any change in the law would have to come from a Legislative amendment, appears to indicate that the court felt constrained to follow the law in this regard. This apparent dissatisfaction of the Superior Court with the scope of the prohibition against the seat belt defense can be viewed as another chipping away of the strength of that prohibition.

Fitzgerald's Dissent

The ironclad prohibition against the seat belt defense was also dented by Fitzgerald's clear dissent on the seat belt issue and his confirmation that the state's appellate courts have struggled with some of the issues involved and would benefit from guidance from the Pennsylvania Supreme Court on the question of the continuing validity and breadth of the prohibition.

In his dissenting opinion, Fitzgerald cited Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), and Foley v. Clark Equipment Co., 523 A.2d 379 (Pa. Super. 1987), in support of his decision that the trial court judge had properly allowed Ford Motor Co. to introduce evidence of the decedent's seat belt use, or lack thereof. Since contributory negligence was not a valid defense in this products liability case, the use of the seat belt defense in that regard was not squarely addressed by the Gaudio court. However, Fitzgerald noted that those prior appellate decisions supported allowing the seat belt defense to be utilized at least for the purposes of showing the lack of a defect (with respect to the airbags) and attempting to defeat any causation argument put forth by the plaintiff.

Time for Change

The time has come for a change in the law. As noted in my previous article on this topic, in more than 20 years since the passage of the law prohibiting the seat belt defense, scientific evidence has clearly established that using seat belts minimizes the chances of death and can minimize the extent of injuries in motor vehicle accidents. This evidence is so well-established that the wearing of seat belts for safety purposes is now deemed as common sense by the general public.

Compared to the few people who routinely used seat belts more than 20 years ago when the seat belt law was first passed, a large majority of motorists now use seat belts on such a routine basis that a seat belt defense at trial would likely only be applicable to that small number of non-law-abiding motorists lacking common sense and still foolish enough to break the law by riding in motor vehicles without belting up.

Fears by the plaintiff's bar that unbelted parties injured or killed through no fault of their own in a motor vehicle accident may be completely and unfairly barred from recovery by virtue of the injured party's failure to wear a seat belt can be tempered by Legislative limitations on the breadth of the seat belt defense. For example, the Legislature may mandate that an injured party's recovery may be limited up to a certain percentage but not entirely barred by the seat belt defense. Plaintiff's fears in this regard may also be addressed by their ability to secure expert witnesses to defeat the seat belt defense by showing that, even if the Plaintiff had been wearing a seat belt, the forces of the impact would have resulted in the same or similar injuries.

Realistically speaking, the allowance of the seat belt defense in automobile cases would really be no different than the currently allowed defense in premises liability cases that people have a duty to exercise due care in protecting themselves from injury by watching where they are walking. Also, in almost every situation, a plaintiff has a duty to mitigate his damages. What better way is there for a motor vehicle occupant to mitigate his potential damages and injuries than by simply clicking on a seat belt? Click. Done.

Last but certainly not least, it would also appear that the abolishment of the prohibition against the seat belt defense would further the now currently recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who continue to break the law by still refusing to wear seat belts after all of these years.

Only the Legislature Can Act

Treatises have noted that a substantial minority of jurisdictions allow for the seat belt defense given the obvious effectiveness of seat belts in reducing fatalities and injuries. See ""onuse of seatbelt as reducing amount of damages recoverable," 62 A.L.R.5th 537 (1998) by Christopher Hall. In those jurisdictions, defendants are permitted to point to the injured party's failure to use the seat belt to support contributory negligence or mitigation of damages defenses in automobile accident cases.

Pennsylvania should join those jurisdictions. However, it appears that any such change in the law will have to come from the Legislature. Public support may be secured for this change by asserting that an amendment doing away with the prohibition against the seat belt defense could, as noted, ultimately serve to contain the spiraling costs of automobile insurance rates for the law abiding citizens of Pennsylvania who do wear their seat belts as required.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins.


This article is reprinted here with permission from the June 29, 2009 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Recent Cases of Note From Around the Commonwealth

According to the May 11, 2009 Pennsylvania Law Weekly, the following cases were the most frequently requested from the Law Weekly's Pennsylvania Instant Case Service (PICS) last week. See 32 PLW 521 (May 11, 2009). Copies of the opinions can be secured from the Law Weekly by calling 1-800-276-PICS and providing the PICS numbers indicated.


Minto v. J.B. Hunt Transport, Inc., PICS Case No. 09-0650(Pa. Super. April 17, 2009)
Klein, J.; Gantman, J. concurring (10 pages).

Superior Court held that the rule pertaining to the exclusivity of a workers' compensation recovery for an employee's injuries, did not bar an employee’s claims that his employer's destruction of evidence impeded his products liability claims against the manufacturer of a truck he was driving.



Schaub v. Trainer’s Inn, PICS Case No. 09-0598 (C.P. Carbon Feb. 17, 2009)
Nanovic, J. (19 pages).

An excellent analysis of the proximate causation/foreseeability issue in negligence cases. A bar’s serving of liquor to a visibly intoxicated underage patron was found not to be the proximate cause of that patron’s excessive violence in a fight outside the bar in which the patron beat another to death with a baseball bat.



Wilmington Steel Processing Co. v. Citisteel USA, Inc., PICS Case No. 09-0456 (C.P. Philadelphia, Commerce Program (Jan. 27, 2009)
Abramson, J. (15 pages).

Analysis of claim for tortious interference with existing and prospective contracts.



Berrier v. Simplicity Manufacturing, Inc., PICS Case No. 09-0692 (3d Cir. April 21, 2009)
McKee, J. (73 pages).

The Third Circuit predicted that, under certain circumstances, the Pennsylvania Supreme Court would adopt Restatement (Third) of Torts, §§ 1 and 2 and thereby allow bystanders to pursue a cause of action in strict liability.



Medallis v. Northeast Land Development, LLC, PICS Case No. 09-0494 (C.P. Lackawanna Dec. 4, 2008)
Minora, J. (14 pages).

Lackawanna County Court of Common Pleas Judge Carmen Minora held that a developer can be found liable for storm water runoff even where his water runoff system met minimal regulatory requirements.