Pennsylvania Superior Court Upholds Forum Shopping by Plaintiffs

In the case of Zappala v. James Lewis Group, 2009 WL 2922862, PICS Case No. 09-1533 (Pa.Super. Sept. 11, 2009), the Superior Court held that a plaintiff could engage in forum shopping as long as it did not constitute vexatious conduct.

The Plaintiff, a Delaware County resident, was injured while working as a flag person at a construction site in Chester County. She sued some Defendants from Chester County and some Defendants from Philadelphia in a case filed in Philadelphia County.

The Philadelphia Defendants were eventually dismissed by an unopposed Motion for Summary Judgment filed on the grounds that such Defendants had no ownership interest or responsibility over the subject construction site. This would seem to suggest that such Defendants were joined in the matter simply for the purpose of securing venue in Philadelphia.

After the Philadelphia Defendants were dismissed the Chester County Defendants filed a motion to transfer venue under the forum non conveniens doctrine. The trial court granted this motion noting that the Plaintiff had engaged in forum shopping. However, the Superior Court reversed.

In its opinion, the Superior Court noted that the Plaintiff's selection of the venue of the forum is but one factor to consider in the analysis. The Court held that forum shopping by a plaintiff, in and of itself, is not forbidden under Pennsylvania law. Such forum shopping would only be found to be improper if the plaintiff was engaging in vexatious conduct, i.e. the purpose of choosing the forum was to harass a defendant.

Here, the Chester County Defendants only asserted inconvenience to the witnesses and parties along with other traditional arguments typically found in a forum non conveniens motion. There was no showing of vexatiousness or harassment. As such, the Superior Court reversed the trial court's granting of the motion.

A copy of this opinion can be purchased from the Pennsylvania Law Weekly's Instant Case Service by calling 1-800-276-7427 and giving the above PICS Case Number.

Case in Point As To Why Complete Bar of Assumption of Risk Doctrine Still Needed

As you may recall, I have posted a couple of entries to this blog dedicated to the question of whether the Assumption of Risk Doctrine remains as a valid defense in the Commonwealth of Pennsylvania.

According to the previous posts, the Commonwealth Court of Pennsylvania appears to be firm in its belief that the doctrine is still a viable defense, while the Superior Court continues to question the ongoing validity of the defense as a complete bar to a Plaintiff's cause action. To view these posts, scroll down the right side of this blog to the "Labels" section, and then click on "Assumption of Risk."

Clearly, there is a need for a clarification from the Pennsylvania Supreme Court on this issue.

I wanted to share with you a September 18, 2009 article on the assumption of risk doctrine in California entitled "Burning Man Fire Victim's Suit Goes Up In Smoke." The article was written by Bob Egelko from the San Francisco Chronicle. The article can be found at found at:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/17/BAHN19OMPU.DTL&tsp=1#ixzz0RlQTRt9N

According to this article, a plaintiff attended a bonfire at which it was customary to throw items into the bonfire. After the bonfire collapsed but was still burning, the plaintiff chose to voluntarily walk 7 to 10 feet into the flames, then took a few steps more in order to throw a photograph into the fire. As he was taking the last few steps into the inferno, he tripped, fell and was badly burned. The plaintiff later sued the San Francisco-based promoter of the event for negligently allowing people to approach the bonfire without safe pathways.

On September 16, 2009, the California Supreme Court handed down a unanimous decision upholding the trial court's dismissal of this suit under the assumption of risk doctrine. I offer this story as further support for the proposition that the defense of the assumption of risk doctrine as a complete bar to a plaintiff's cause of action has a continually valid place in the law.

In cases such as this, where a plaintiff knowingly and voluntarily places himself or herself at the risk of injury from a known danger (this guy walked INTO a bonfire, for crying out loud), a defendant should not have to undergo the risks associated with a lawsuit by defending it under comparative negligence principles in the hopes of a favorable result. Rather, such extreme cases of a plaintiff voluntarily assuming the dangers of a known risk should be summarily dismissed early on in the case under the assumption of risk doctrine in its primary and strict sense as that has been defined by Pennsylvania cases on the issue.

WHAT DO YOU THINK? Please feel free to comment.

For a more detailed review of some of the recent Pennsylvania cases on this issue, as noted above, please click on the Label in the right column of this blog for "Assumption of Risk" or review my articles on the topic at:

http://www.jdsupra.com/post/documentViewer.aspx?fid=8a0f9813-ab34-44f8-b016-8e58321faf82

AND

http://www.jdsupra.com/post/documentViewer.aspx?fid=fda3f4da-9ebf-4f6c-b37c-ab0b1f69f528


I thank Pete Hall, my editor at the Pennsylvania Law Weekly, for bringing this story to my attention.

Humorous Story About "My Cousin Vinny"-Like Jailing of Attorney

7th Circuit Affirms Conviction Despite Lawyer’s ‘Vinny’-Like Jailing


A federal appeals court has affirmed the attempted murder conviction of a man whose lawyer was jailed during trial for “obstinate behavior” in an opinion that compared the case to the movie My Cousin Vinny.

The Chicago-based 7th U.S. Circuit Court of Appeals noted similarities and differences between the jailing of the Illinois lawyer and the fictional defense lawyer, Vincent LaGuardia Gambini, the Wisconsin Law Journal reports.

Unlike “Vinny,” the Illinois lawyer claimed his overnight jail stay during his client’s trial left him sleep-deprived and without the presence of mind to continue the defense of his client William Riley Sutherland III, later convicted of attempted murder.

Vinny, on the other hand, emerged rested from his night in jail and won the case for his client, Judge William Bauer wrote in the opinion affirming Sutherland’s conviction. Bauer said the real-life lawyer should have moved for a continuance upon returning to court.

“We cannot accept that an attorney functioning on little rest, whether it be three hours of sleep or no sleep at all, would lack the presence of mind even to request a simple continuance,” he said.
A footnote noted the similarities to My Cousin Vinny. “Unlike defense counsel here, Vinny, a New York lawyer struggling to adapt to the rural-Alabama trial setting, found that the accommodations in jail offered the best night’s sleep he could find away from the Big Apple,” Bauer wrote. “Upon his return to the courtroom, a revitalized Vinny dismantled the credibility of the state’s circumstantial case and cleared the names of the ‘two yutes’ he represented. (And again we see that life follows art).”

The above article was posted on September 16, 2009 on the ABA Journal website and was written by Debra Cassens Weiss.

Expert Testimony on Fibromyalgia Allowed In Lackawanna County

In my preparations for my upcoming 2009 Civil Litigation Update presentation for the Lackawanna County Bench Bar Conference (Oct. 9th at the Scranton Hilton), I was advised of the following recent trial court opinion by Judge Terrence R. Nealon out of the Lackawanna County Court of Common Pleas.

I recently profiled the July 7, 2009 opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), in which he showed that the trial courts of Pennsylvania are continuing to struggle with the issue of whether or not expert testimony should be allowed to support a plaintiff's effort to link his or her alleged fibromyalgia condition to the traumatic event at issue in the case.

In the George case, the Judge could not even issue an opinion on the issue based on what he had before him, but rather, ordered the parties to provide him with more information and articles from the general medical community on the methodology associated with a fibromyalgia diagnosis to assist the court in determining whether such information should be accepted.

In Lackawanna County, back on January 9, 2009, Judge Terrence R. Nealon issued an opinion in the case of Crossman v. Delisi, 2009 WL 221941 (Lacka Co. 2009) in which he denied a Defendant's Motion in Limine seeking to preclude the Plaintiff's medical expert, Dr. Scott K. Epstein, a physiatrist, from testifying that the Plaintiff's fibromyalgia symptoms were related to the motor vehicle accident at issue.

According to the opinion, Dr. Epstein remained firm in this opinion during the cross-examination of his videotaped deposition. Judge Nealon also considered the contrary testimony of the defense medical expert, orthopedic surgeon, Dr. Thomas Allardyce, who questioned any conclusion that fibromyalgia has been definitively linked to trauma.

Judge Nealon applied the test of admissibility set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) as required by the Pennsylvania Supreme Court decision in Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1, 4 (Pa. 2000). Under Frye, novel scientific evidence is admissible if the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community.

Relying upon Dr. Epstein's allegation that a majority of the medical literature recognizes that fibromyalgia may be caused by trauma, as well as relying upon the court's own independent research into articles stating the same as cited in other cases, Judge Nealon held that "[a]ssuming arguendo that Dr. Epstein used a particular methodology in formulating his opinion regarding the cause of the plaintiff's fibromyalgia, the expert testimony submitted for our review and the relevant medical literature discovered during our own research,...reflect that it has gained the requisite level of acceptance in the medical community."

As such, the Defendant's Motion in Limine was denied and the Plaintiff was permitted to present Dr. Epstein's testimony that the Plaintiff's fibromyalgia was related, or caused, by the motor vehicle accident in question.

Several years ago, back in April of 2005, I issued an article exploring this very topic and suggesting, at least back at that time, there was no general agreement in the medical community that fibromyalgia can result from trauma so as to support the admissibility of such testimony. That article, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases," may be viewed by clicking on the title to this post.

Conahan and Ciavarella Plead Not Guilty

On the morning of Tuesday, September 15, 2009, former Luzerne County Judges Mark A. Ciavarella Jr. and Michael T. Conahan appeared in federal court for the first time since a grand jury hit them with a 48-count indictment last week.

To review a copy of the indictment, click on the title to this post.

Ciavarella, 59, and Conahan, 57, were arraigned before U.S. Magistrate Judge Thomas M. Blewitt on charges including racketeering, bribery, extortion and money laundering. Both judges pleaded not guilty.

Federal prosecutors requested new bail conditions including electronic monitoring for the judges, claiming there was evidence they tried to protect assets that could be seized in the case and that the new charges in the indictment carried sentences of nearly 600 years as opposed to the 25 years the judges faced on the original charges.

Defense attorneys argued the government was aware of all the judges’ assets and any transfers they might have made to family members, so those assets were available in the event of forfeiture. It was also argued that the judges had obeyed all previous conditions.

In the end, Federal Magistrate Judge Blewitt decided to retain the current bail conditions set in February by U.S. District Judge Edwin M. Kosik. More specifically, the former Judges were allowed to remain free on bail backed by the $700,000 Florida condominium owned by their wives. The former Judges were also restricted to traveling only within Northeastern Pennsylvania.

Both judges declined comment as they left the courtroom.

Information for this post was gathered from an online Citizen's Voice article found at http://www.citizensvoice.com/conahan_ciavarella_plead_not_guilty_to_new_charges.

New Indictment//New Court Date for Former Luzerne County Judges Ciavarella and Conahan

On Wednesday, September 9, 2009, a new indictment was handed down by a grand jury in Harrisburg against former Luzerne County Judges Mark A. Ciavarella and Michael T. Conahan. The indictment essentially contains the same allegations lodged against the former judges in the original indictment filed by the U.S. Attorney’s Office in January of this year. However, the judges now face 48 charges instead of two, and if convicted on all counts, they could spend decades in prison, instead of the 87 months that had been negotiated in the original plea deal that was rejected by Federal Middle District Judge Edwin Kosik.

Former Luzerne County judges Mark Ciavarella and Michael Conahan are scheduled to be arraigned on charges contained in the indictment at 10 a.m. Tuesday, September 15, 2009 before U.S. Magistrate Judge Thomas Blewitt at the Federal Courthouse in Scranton. Judge Blewitt will make a determination as whether the Defendants can remain free pending trial.

Professional Announcements

The recent Pennsylvania Defense Institute/Northeast Trial Lawyers Association CLE Seminar at the Mohegan Sun Casinos in Wilkes-Barre was deemed a success. Thanks to all who sponsored or attended the seminar.

I am happy to note that as a reward for my efforts in assisting in putting on the seminar I have been named to the Board of the Pennsylvania Defense Institute as one of two Directors covering the Northern Region of Pennsylvania in this organization.


I also had the below announcement published in the most recent edition of The Voice, an online newsletter of the Defense Research Institute, which is a nationwide organization of defense counsel and insurance professionals:

And The Defense Wins

On June 18, 2009 DRI member, Daniel E. Cummins of the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins won a pre-trial dismissal of a case against his client, C&A Industries, in a property damage case. The plaintiff-tenant electronics company alleged that it had sustained thousands of dollars in property damages 14 years ago when its possessions located in a building owned by the defendant-landlord were allegedly damaged as a result of a collapsing of an allegedly negligently maintained roof on the premises.

The case was actually a property damage subrogation claim being pursued by Federal Insurance Company. However, the case remained stagnant over the last 14 years, and the defense finally filed a Motion to Dismiss the case for failure to prosecute it in a timely fashion.

During oral argument, defense counsel emphasized the inappropriate age of the case by noting that the year the underlying event occurred, 1994, was the same year that: Nancy Kerrigan was clubbed by cohorts of Tonya Harding; President Clinton and Boris Yeltsin were in office; George W. Bush was elected governor in Texas; and O.J. Simpson allegedly murdered two people. That's how old this case was.

After the defense argued that the docket sheet on the case and the passage of an inordinate amount of time established that the plaintiff had failed to move the case with reasonable promptitude, with no compelling reason for the delay and to the irreparable prejudice of the defendant in the form of missing witnesses and faded memories, the trial court granted the Motion to Dismiss filed by the defense.