I saw this message on the Lexis/Nexis site. I am hoping you might consider Tort Talk to be worthy of this recognition as a Top Tort Law Blog. This is different from the previous Lexis/Nexis recognition, which was for top Insurance Law Blogs.
Thanks for your time and consideration in this regard.
Nominate Your Favorite Blogs For Top Tort Blog Honors
Posted by LexisNexis Litigation Resource Community StaffChange Author: *
External URL:
http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2011/10/27/nominate-your-favorite-blogs-for-top-tort-blog-honors.aspx
Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. This year, we've expanded Top Blogs to our Litigation Resource Community, and we are asking your help to select the Top 25 Tort Blogs. We've been fortunate to host the content of a number of distinguished legal professionals who have shared their insights and expertise with our Community, and through the process of seeking what we consider to be "top blogs," we have discovered many more.
The Top Tort Blogs campaign on the LexisNexis Litigation Resource Community will move ahead in several phases. We'll start by taking nominations during a comment period that starts today and ends on Nov. 17. We've gathered a group of initial nominees, which are listed below, and we welcome our Community members to make additional nominations and support their favorite blogs. We'll select the top 25 based on our review of the sites and comments from our Community members. After we announce the Top 25 Tort Blog honorees, we'll ask our Community to vote for the Top Tort Blog of the Year.
To "talk up" or nominate your favorite Tort Blog, you'll need to be a registered Community member and be logged in. If you haven't previously registered, follow this link. Registration is free! Once you are logged in, scroll all the way to the very bottom of this page to the comment box.
Add a comment in the box at the bottom of the page to vote or nominate your favorite blog, and that's it! If you are having problems with the registration or voting process, please contact us at Gregg.lawson@lexisnexis.com I'm the Communities Manager, and I want to make sure that everyone gets to vote!
Thursday, November 3, 2011
Wednesday, November 2, 2011
Superior Court Affirms Finding of Improper Venue in Philadelphia County Personal Injury Case
In the recent Pennsylvania Superior Court decision of Schultz v. MMI Products, Inc., et al., (Pa.Super. Oct. 21, 2011 Bowes, Allen, Platt, JJ.)(Opinion by Platt, S.J.), the Court affirmed the bouncing of a case filed in Philadelphia County to Lehigh County under an argument of improper venue.
This case arose out of a construction site accident that occurred in Lehigh County.
The plaintiff appeared to assert that the basis for venue in Philadelphia was the allegation that the defendant(s) “regularly conducted business” in Philadelphia County. The defendant introduced evidence via affidavit that only .8 and 1.3 % of their business was in Philadelphia.
The Opinion provides a detailed analysis of the applicable law on the venue rules found under Pa.R.C.P. 1006 and 2179.
Although this issue is essentially the same issue as addressed by the Superior Court in its recent Post-Koken decision in Sehl v. Neff, that decision was not cited in this Opinion in the Schultz case. In Sehl, the Superior Court rejected the contention that a plaintiff could pursue a post-Koken auto accident case in any county they wanted on the grounds that the insurance company defendant regularly conducted business in every county of the Commonwealth.
Anyone desiring a copy of the Schultz v. MMI Products decision (or the Sehl v. Neff decision) may contact me at dancummins@comcast.net.
I thank Attorney Suzanne Tighe of the Scranton, PA office of Swartz Campbell for bringing this decision to my attention.
This case arose out of a construction site accident that occurred in Lehigh County.
The plaintiff appeared to assert that the basis for venue in Philadelphia was the allegation that the defendant(s) “regularly conducted business” in Philadelphia County. The defendant introduced evidence via affidavit that only .8 and 1.3 % of their business was in Philadelphia.
The Opinion provides a detailed analysis of the applicable law on the venue rules found under Pa.R.C.P. 1006 and 2179.
Although this issue is essentially the same issue as addressed by the Superior Court in its recent Post-Koken decision in Sehl v. Neff, that decision was not cited in this Opinion in the Schultz case. In Sehl, the Superior Court rejected the contention that a plaintiff could pursue a post-Koken auto accident case in any county they wanted on the grounds that the insurance company defendant regularly conducted business in every county of the Commonwealth.
Anyone desiring a copy of the Schultz v. MMI Products decision (or the Sehl v. Neff decision) may contact me at dancummins@comcast.net.
I thank Attorney Suzanne Tighe of the Scranton, PA office of Swartz Campbell for bringing this decision to my attention.
Social Host Liability Case Out of Erie County
In the Erie County trial court case of Boyd v. Miller, 11321 - Civil - 2011 (C.P. Erie. Co. Oct. 28, 2011 Connelly, J.), the court addressed preliminary objections to a Complaint filed against a social host who provided marijuana to a guest, both of whom were under age 21.
The guest thereafter allegedly caused an accident while driving impaired resulting in alleged injuries to the plaintiff.
In response to the preliminary objections filed by the homeowner social host defendants the Court found that the plaintiff had stated a negligence cause of action based upon a violation of the Controlled Substance Act and also the Restatement (Second) Torts Section 876 (acting in concert).
In so ruling, the court rejected the Defendant host's argument that this case should be treated like an underage drinking case, and since both host and driver were underage, there should not be liability on the host under the current status of Pennsylvania law on that issue (which holds that there is no liability for a social host who provides alcohol to a guest who later gets into an accident--cases cited in the Opinion).
Court disagreed finding that the cases cited were limited to the provision of alcohol given how the Pennsylvania Legislature has elected to treat drug offenses differently from alcohol offenses, i.e. as being "more egregious" offenses.
As such, the Court dismissed the claims asserting liability based upon the furnishing of alcohol to the guest, but overruled the preliminary objections to the allegations pertaining to the provision of controlled substances to the guest.
Anyone desiring a copy of this decision in Boyd v. Miller may contact me at dancummins@comcast.net.
I thank Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.
The guest thereafter allegedly caused an accident while driving impaired resulting in alleged injuries to the plaintiff.
In response to the preliminary objections filed by the homeowner social host defendants the Court found that the plaintiff had stated a negligence cause of action based upon a violation of the Controlled Substance Act and also the Restatement (Second) Torts Section 876 (acting in concert).
In so ruling, the court rejected the Defendant host's argument that this case should be treated like an underage drinking case, and since both host and driver were underage, there should not be liability on the host under the current status of Pennsylvania law on that issue (which holds that there is no liability for a social host who provides alcohol to a guest who later gets into an accident--cases cited in the Opinion).
Court disagreed finding that the cases cited were limited to the provision of alcohol given how the Pennsylvania Legislature has elected to treat drug offenses differently from alcohol offenses, i.e. as being "more egregious" offenses.
As such, the Court dismissed the claims asserting liability based upon the furnishing of alcohol to the guest, but overruled the preliminary objections to the allegations pertaining to the provision of controlled substances to the guest.
Anyone desiring a copy of this decision in Boyd v. Miller may contact me at dancummins@comcast.net.
I thank Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.
Tuesday, November 1, 2011
Medical Event Defense Upheld in Monroe County Car Accident Case
A medical event defense was successfully asserted in a motor vehicle accident matter by the defendant in the Monroe County Court of Common Pleas case of Maness v. Hock, No. 3444-Civil-2010 (C.P. Monroe Co. September 19, 2011 Miller, J.).
In Maness, the defendant filed a motion for summary judgment asserting a medical event defense and arguing that, because the defendant suffered a first epileptic seizure immediately prior to the subject accident, which was not foreseeable, the plaintiff was unable to establish a viable cause of action for negligence.
Judge Linda Wallach Miller of the Monroe County Court of Common Pleas issued a detailed opinion reviewing the defendant’s motion. After reviewing all of the evidence, the Court found that the defendant’s medical records, including an expert report by a board certified neurologist offered by the defense, all served to confirmed that the defendant had indeed suffered a first, unforeseeable epileptic seizure at the time of the motor vehicle accident.
Noting that the Court could not find any case law directly on point, and relying in part upon a decision from an appellate court in Maryland, Judge Miller held that the competent and unrebutted medical evidence presented in this case established that the defendant suffered an unforeseeable seizure that resulted in the defendant’s car colliding with the Plaintiff’s car. In reaching this decision, Judge Miller noted that, had the defendant had prior seizures and drove with that knowledge, reasonable minds may have been able to infer negligence.
However, under the facts presented in this case, the court found that the Plaintiff failed to establish a cause of action for negligence. As such, summary judgment was entered in favor of the defense.
Anyone desiring a copy of this opinion in Maness v. Hock may contact me at dancummins@comcast.net.
In Maness, the defendant filed a motion for summary judgment asserting a medical event defense and arguing that, because the defendant suffered a first epileptic seizure immediately prior to the subject accident, which was not foreseeable, the plaintiff was unable to establish a viable cause of action for negligence.
Judge Linda Wallach Miller of the Monroe County Court of Common Pleas issued a detailed opinion reviewing the defendant’s motion. After reviewing all of the evidence, the Court found that the defendant’s medical records, including an expert report by a board certified neurologist offered by the defense, all served to confirmed that the defendant had indeed suffered a first, unforeseeable epileptic seizure at the time of the motor vehicle accident.
Noting that the Court could not find any case law directly on point, and relying in part upon a decision from an appellate court in Maryland, Judge Miller held that the competent and unrebutted medical evidence presented in this case established that the defendant suffered an unforeseeable seizure that resulted in the defendant’s car colliding with the Plaintiff’s car. In reaching this decision, Judge Miller noted that, had the defendant had prior seizures and drove with that knowledge, reasonable minds may have been able to infer negligence.
However, under the facts presented in this case, the court found that the Plaintiff failed to establish a cause of action for negligence. As such, summary judgment was entered in favor of the defense.
Anyone desiring a copy of this opinion in Maness v. Hock may contact me at dancummins@comcast.net.
Sunday, October 30, 2011
Limited Tort Case Out of Westmoreland County
I recently came across the case of Phillipi v. Carey, 93 Westmoreland 119 (C.P. May 6, 2011), in which the Westmoreland County Court of Common Pleas granted summary judgment for the Defendant in a limited tort case.
According to the Opinion, the Court found that the Plaintiff’s injuries were not serious in a case where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.
The Court noted that, although the Plaintiff offered evidence that his standing and walking abilities were affected, there was no evidence of any restrictions as a result of the injuries.
This is one of a only few recent limited tort decisions I have seen. Another recent limited tort decision was out of the Monroe County Court of Common Please by Judge Linda Wallach Miller in the case of Stout v. Deleo, No. 970-Civil-2007 (C.P. Monroe Co. 2011, Miller, J.), in which the Court also granted a defendant’s summary judgment motion on the limited tort issue.
Anyone desiring a copy of the above limited tort decisions may contact me at dancummins@comcast.net.
Source: “Court Summaries” Pennsylvania Bar News By Timothy L. Clawges, Esquire (Chief Public Defender in Cumberland County).
According to the Opinion, the Court found that the Plaintiff’s injuries were not serious in a case where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.
The Court noted that, although the Plaintiff offered evidence that his standing and walking abilities were affected, there was no evidence of any restrictions as a result of the injuries.
This is one of a only few recent limited tort decisions I have seen. Another recent limited tort decision was out of the Monroe County Court of Common Please by Judge Linda Wallach Miller in the case of Stout v. Deleo, No. 970-Civil-2007 (C.P. Monroe Co. 2011, Miller, J.), in which the Court also granted a defendant’s summary judgment motion on the limited tort issue.
Anyone desiring a copy of the above limited tort decisions may contact me at dancummins@comcast.net.
Source: “Court Summaries” Pennsylvania Bar News By Timothy L. Clawges, Esquire (Chief Public Defender in Cumberland County).
Thursday, October 27, 2011
Judge Terrence Nealon Holds Claims Reps' Mental Impressions From Before Suit Filed Are Protected
The issue in this case arose from a subpoena sent by the Plaintiff to secure a "complete copy" of the adjuster's file, including all documents related to the initial handling of the file in this property damage case. The defendant carrier objected to the wide scope of the subpoena request, particularly with respect for the request for the production of the adjuster's mental impressions, conclusions and opinions on the file.
The Plaintiff argued that only those mental impressions, conclusions, and opinions of the adjuster created after the filing of the lawsuit were protected under the Rules of Discovery. Judge Nealon disagreed.
Rule 4003.3 provides work product protection for an attorney's mental impressions prepared in anticipation of or connection with litigation, as well as for a non-attorney representative's opinions regarding the value or merit of a claim or defense that were prepared in anticipation of litigation (e.g., a claims representative, property loss adjustor, etc.).
Noting that there were no appellate cases on point on the question presented, and a dearth of any trial court opinions to refer to for that matter, Judge Nealon found that since there was no temporal limitation expressed in the Rules, all mental impressions, conclusions, or opinions generated in anticipation of litigation were therefore protected from discovery in that litigation.
In other words, the court found that there was no definitive line of demarcation---the filing of suit---for non-attorney mental impressions to be deemed "in anticipation of litigation." As such, according to this ruling by Judge Nealon, Rule 4003.3 protects the adjuster's or claims representative's mental impressions expressed and documented in the file both before and after the commencement of the lawsuit.
Anyone desiring a copy of this opinion by Judge Nealon in the case of Church of the Forgotten Souls v. NGM Insurance Company may contact me at dancummins@comcast.net. Please be sure to specify that you would like the "discovery" opinion on this case as I posted a summary of a more general opinion by Judge Nealon in this same case last week pertaining to property damage subrogation issues. Thanks.
Tuesday, October 25, 2011
ARTICLE: U NEED 2 AUTHENTICATE TMs
U NEED 2 AUTHENTICATE TMs
Criminal court decision provides guidance on authenticating electronic information
By
Daniel E. Cummins
Criminal court matters are not often referenced in this civil litigation column but the Pennsylvania Superior Court has handed down a decision in a criminal case that could have impact in personal injury lawsuits.
The rapidly ever-changing internet world has brought on a new issue to be considered in the courtroom. Now that most communications are arguably completed electronically, the novel question of how to authenticate electronic messages, along with information on social media sites, has come to the forefront.
As noted below, the Pennsylvania Superior Court has faced down this issue by simply applying the rules of authentication that seem to have been in place forever in terms of paper-written evidence.
A case of first impression
In a recent criminal court case, described as a case of first impression, the Pennsylvania Superior Court ruled that text messages were not admissible in court unless they were properly authenticated, i.e. unless there is evidence presented that the messages did indeed come from the alleged sender.
The case of Commonwealth v. Koch, 2011 WL 4336634 2011 PA Super 201, No. 1669 MDA 2010 (Pa.Super. Sept. 16, 2011 Bowes, Freedburg, Colville, JJ)(Opinion by Bowes, J.) involved an appeal by the defendant from a Cumberland County conviction for drug offenses.
The defendant’s cell phone had been seized by the police during a search warrant and the text messages discovered on the phone were transcribed, offered at trial by the prosecutor, and allowed in by the trial court judge over the defendant’s objections as to hearsay and authentication.
The defendant asserted that there was no evidence to establish that she had sent any of the drug-related texts. She also asserted that it had not been established that the drug-related text received on the phone were directed to her as there was evidence that the defendant’s cell phone was also allegedly being used by someone else at the time.
On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.
As further support for its ruling, the court pointed to the prior prescient Pennsylvania Superior Court decision in In the Interest of F.P. A Minor, 878 A.2d 91 (Pa.Super. 2005), in which the court dealt with the authtentication of evidence of instant messages.
In that case, the Superior Court rejected the argument that emails or text messages are inherently unreliable because of their relative anonymity and the sometimes difficulty attendant with connecting a message with its author.
The court in F.P. noted that these issues are no different from letters or other documents that can be forged or denied by the alleged writer. The court also believed that electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901 on a case-by-case basis to determine if there has been an adequate foundation laid out as to the document’s relevance and authenticity.
In the more recent decision by the Superior Court in the case of Commonwealth v. Koch, it was also noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.”
The Commonwealth v. Koch court also emphasized that, while text messages and emails can almost always be electronically traced back to their source cell phone or computer, the sender of such messages is not always thereby automatically identified. Particular cell phones and computers can arguably be utilized by anyone at anytime.
As such, the Superior Court additionally held that there must also be “[c]ircumstantial evidence, which tends to corroborate the identity of the sender,” as well before an electronic message may be authenticated and admitted.
Impact in civil matters
This emerging evidentiary issue could obviously also come into play in civil litigation matters not only with respect to authenticating text messages but also tweets, emails, and commentary and photos on social media sites such as Facebook, MySpace, Linkedin and Google Plus.
So how do you authenticate such items? Just like you would with any other “writing” or documentary evidence. Don’t be distracted by the fact that this issue involves a new form of evidence—the same Pennsylvania Rules of Evidence apply.
Under Pennsylvania Rule of Evidence 901, pertaining to authentication, “[t]he required degree of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” See Pa.R.E. 901(a).
Pennsylvania Rule of Evidence 902(b) lists examples of methods to establish authentication. Evidence may be authenticated:
-by testimony from a witness with knowledge that the matter is what it is claimed to be
-with evidence establishing distinctive characteristics of the document to confirm its authenticity (perhaps the phrasing in the text will match how the sender speaks, etc.)
-by other relevant, circumstantial evidence to show that the writing is what the proponent purports it to be (i.e. references to related places, things, or names in the text message).
As the Pennsylvania and Federal Rules of Evidence largely mirror each other, it can be anticipated that the analysis for the authentication of electronic messages would be similar in the federal court system.
Conclusion
Therefore, these different forms of electronic evidence can be authenticated—you just need to know how. If you are ever faced with the issue of the authenticity of an email, text message, or information from a social media site, the Commonwealth v. Koch case is the one to consult along with Pa.R.E. 901.
Criminal court decision provides guidance on authenticating electronic information
By
Daniel E. Cummins
The rapidly ever-changing internet world has brought on a new issue to be considered in the courtroom. Now that most communications are arguably completed electronically, the novel question of how to authenticate electronic messages, along with information on social media sites, has come to the forefront.
As noted below, the Pennsylvania Superior Court has faced down this issue by simply applying the rules of authentication that seem to have been in place forever in terms of paper-written evidence.
A case of first impression
In a recent criminal court case, described as a case of first impression, the Pennsylvania Superior Court ruled that text messages were not admissible in court unless they were properly authenticated, i.e. unless there is evidence presented that the messages did indeed come from the alleged sender.
The case of Commonwealth v. Koch, 2011 WL 4336634 2011 PA Super 201, No. 1669 MDA 2010 (Pa.Super. Sept. 16, 2011 Bowes, Freedburg, Colville, JJ)(Opinion by Bowes, J.) involved an appeal by the defendant from a Cumberland County conviction for drug offenses.
The defendant’s cell phone had been seized by the police during a search warrant and the text messages discovered on the phone were transcribed, offered at trial by the prosecutor, and allowed in by the trial court judge over the defendant’s objections as to hearsay and authentication.
The defendant asserted that there was no evidence to establish that she had sent any of the drug-related texts. She also asserted that it had not been established that the drug-related text received on the phone were directed to her as there was evidence that the defendant’s cell phone was also allegedly being used by someone else at the time.
On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.
As further support for its ruling, the court pointed to the prior prescient Pennsylvania Superior Court decision in In the Interest of F.P. A Minor, 878 A.2d 91 (Pa.Super. 2005), in which the court dealt with the authtentication of evidence of instant messages.
In that case, the Superior Court rejected the argument that emails or text messages are inherently unreliable because of their relative anonymity and the sometimes difficulty attendant with connecting a message with its author.
The court in F.P. noted that these issues are no different from letters or other documents that can be forged or denied by the alleged writer. The court also believed that electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901 on a case-by-case basis to determine if there has been an adequate foundation laid out as to the document’s relevance and authenticity.
In the more recent decision by the Superior Court in the case of Commonwealth v. Koch, it was also noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.”
The Commonwealth v. Koch court also emphasized that, while text messages and emails can almost always be electronically traced back to their source cell phone or computer, the sender of such messages is not always thereby automatically identified. Particular cell phones and computers can arguably be utilized by anyone at anytime.
As such, the Superior Court additionally held that there must also be “[c]ircumstantial evidence, which tends to corroborate the identity of the sender,” as well before an electronic message may be authenticated and admitted.
Impact in civil matters
This emerging evidentiary issue could obviously also come into play in civil litigation matters not only with respect to authenticating text messages but also tweets, emails, and commentary and photos on social media sites such as Facebook, MySpace, Linkedin and Google Plus.
So how do you authenticate such items? Just like you would with any other “writing” or documentary evidence. Don’t be distracted by the fact that this issue involves a new form of evidence—the same Pennsylvania Rules of Evidence apply.
Under Pennsylvania Rule of Evidence 901, pertaining to authentication, “[t]he required degree of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” See Pa.R.E. 901(a).
Pennsylvania Rule of Evidence 902(b) lists examples of methods to establish authentication. Evidence may be authenticated:
-by testimony from a witness with knowledge that the matter is what it is claimed to be
-with evidence establishing distinctive characteristics of the document to confirm its authenticity (perhaps the phrasing in the text will match how the sender speaks, etc.)
-by other relevant, circumstantial evidence to show that the writing is what the proponent purports it to be (i.e. references to related places, things, or names in the text message).
As the Pennsylvania and Federal Rules of Evidence largely mirror each other, it can be anticipated that the analysis for the authentication of electronic messages would be similar in the federal court system.
Conclusion
Therefore, these different forms of electronic evidence can be authenticated—you just need to know how. If you are ever faced with the issue of the authenticity of an email, text message, or information from a social media site, the Commonwealth v. Koch case is the one to consult along with Pa.R.E. 901.
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