Register For May 3 Tort Talk Expo to Score 3 CLE Credits



Here's another reminder that the Tort Talk Expo 2012 CLE Seminar set to take place on May 3, 2012 at the Mohegan Sun Casino.  Here's a link to the agenda for the Seminar.

So far there are approximately 60 registrants already planning to attend. The registrants to date consist of claims professionals, plaintiff's attorneys, and defense attorneys. A number of Northeastern Pennsylvania state and federal judges are also expected to attend the Cocktail Reception following the event.

This event promises to be a great networking opportunity and a leisurely chance to secure required CLE credits. The written materials will summarize a year's worth of Tort Talk blog posts and contain other useful information for your practice. Even better, there will also be door prizes and chances to win raffle prizes.

Hope to see you there so I can say THANKS for supporting my efforts with Tort Talk.


TORT TALK EXPO 2012

Presented by

Daniel E. Cummins, Esquire

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday, May 3, 2012
12:30 p.m. to 4:30 p.m.


2 Substantive & 1 Ethics CLE Credits

Followed by Complimentary Cocktail Hour (4:30 – 6:30 p.m.)
at Breakers in the Mohegan Sun

Medical Malpractice Decision Out of Lackawanna County

In his recent decision in the case of Mills v. Green and Community Medical Center, No. 2011-Civil-5496 (C.P. Lacka. Co. March 23, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed in a medical malpractice action pertaining to issues of informed consent, agency allegations, and Connor objections.

In his Opinion, Judge Nealon addressed the law pertaining to informed consent claims against doctors, agency allegations against hospitals, and Connor objections seeking more specific allegations in support of the Plaintiff’s negligence claims.
Ultimately, the Court overruled the objection in the nature of a demurrer to the Plaintiff’s claim for lack of informed consent against the medical doctor without prejudice to the right of the Defendants to renew that objection by way of a Motion for Judgment on the Pleadings or a Motion for Summary Judgment.

With regards to the Preliminary Objections to the claims of agency liability against the hospital, as well as with regard to the connor objections, Judge Nealon granted the Plaintiff 120 days to conduct discovery on the issues of agency and negligence against the hospital so as to enable the Plaintiff to amend certain paragraphs of the Complaint within thirty (30) days thereafter in order to identify any actual or ostensible agents of the Defendant hospital by name or appropriate description and/or to provide more specific information regarding the hospital’s alleged negligence.

Anyone desiring a copy of this decision by Judge Nealon in Mills v. Green and Community Medical Center may contact me at dancummins@comcast.net.

UPCOMING PDI CLE SEMINARS IN PHILADELPHIA

PDI’s Young Lawyers Committee is pleased to announce:

A series of CLE programs for young defense lawyers in the Philadelphia area focusing on representing insurance clients.

THE PROGRAMS:


April 27, 2012: “Insurance Bad Faith and How to Avoid It” – 11:00 AM – 1:00 PM at Cozen, O’Connor, 1900 Market Street, Philadelphia


July 19-20, 2012: “Defense Counsel and Claim Representative Interaction from the Insurer’s Perspective” – at PDI’s 2012 Annual Conference at the Bedford Springs Resort in Bedford Springs



This is the chance for young defense lawyers to learn about casualty insurance companies, the basics of liability insurance policies, the claim handling process, the relationships among the insurer, insured and defense counsel, and what insurance claim representatives expect from defense counsel in handling insurance claim. Learn also about the nuances of representing insurers in non-litigation claims. Finally, learn about the state of insurance bad faith in Pennsylvania, and how counsel cam help insurers avoid bad faith litigation. Program presenters are well known Philadelphia defense counsel and insurance company representatives.



WHO SHOULD ATTEND:

These are intended as intensive programs for groups of around 25.

To reserve your spot, call PDI at 800-734-0737, fax to 900-734-0732 or e-mail us at coled01@padefense.org



THE COST:

$50 per session, which includes lunch

Make checks payable to “PDI”



Name(s):___________________________________________



Firm:______________________________________________

UPCOMING PDI CLE SEMINARS AROUND THE COMMONWEALTH

PDI’s Young Lawyers Committee is pleased to announce:

A series of CLE programs for young defense lawyers in North and Central Pennsylvania focusing on representing insurance clients:

THE PROGRAMS


April 19, 2012: “General Principles of Insurance Claim Handling, Ethical Issues Arising in the Tripartite Relationship, and Considerations in Handling Non-Litigation Claims – Part I”: 11:00 AM – 2:00 PM at the Dauphin County Bar Association in Harrisburg.


June 21, 2012: “Considerations in Handling Non-Litigation Claims – Part II and Insurance Bad Faith and How to Avoid It”: 11:00 AM – 2:00 PM at ? in Wilkes-Barre/Scranton


July 19, 2012: “Defense Counsel and Claim Representative Interaction from the Insurer’s Perspective”: 10:00 AM – 12:00 PM at PDI’s 2012 Annual Conference at Bedford Springs


This is the chance for young defense lawyers to learn about casualty insurance companies, the basics of liability insurance policies, the claim handling process, the relationships among the insurer, insured and defense counsel, and what insurance claim representatives expect from defense counsel in handling insurance claim. Learn also about the nuances of representing insurers in non-litigation claims. Finally, learn about the state of insurance bad faith in Pennsylvania, and how counsel cam help insurers avoid bad faith litigation. Program presenters are well known defense counsel and insurance company representatives.


WHO SHOULD ATTEND:

These are intended as intensive programs for groups of around 25.

To reserve your spot, call PDI at 800-734-0737, fax to 900-734-0732 or e-mail us at coled01@padefense.org


THE COST:

$75 per session, which includes lunch

$150 for all three sessions

Make checks payable to “PDI”


Name(s): _____________________________________________



Firm: _________________________________________________



All three programs _____



Program 1____ Program 2 ____ Program 3 ____

Another Philadelphia Post-Koken Decision in Favor of Severance and on Proper Venue

Another post-Koken decision in favor of severance has been handed down by the Philadelphia County Court of Common Pleas in the case of Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2011 Manfredi, J.).

In this case, Judge William J. Manfredi granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed.

Judge Manfredi also noted that venue as to any non-insurance Defendant would be transferred to Delaware County given that there was no basis for venue against those Defendants in Philadelphia under Pa. R.C.P. 1006(c)(1).

Judge Manfredi also shipped off the claims against the insurance company Defendant to Chester County based upon the insurance contract form selection clause.

As such, the ultimate result of this order was that the post-Koken case filed in the Philadelphia County Court of Common Pleas was severed and sent elsewhere.

This decision is by order only with a short footnote containing a rationale. Anyone desiring a copy of this Order in the case of Lewis v. Fischer and Donegal may contact me at dancummins@comcast.net.

I send thanks to Attorney Ryan F. Curran of the Curran Firm in Media, Pennsylvania for forwarding this decision to my attention.

Motion for Judgment Non Pros Denied in Lackawanna County

In his recent March 28, 2012 Opinion in the case of Gallati v. Sebastian International, Inc., No. 2008-Civil-2268 (C.P. Lacka. Co. March 28, 2012 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed a Motion for Judgment of Non Pros filed by a Defendant based upon the alleged failure of the Plaintiffs to prosecute their case diligently.

This matter arises out of a cause of action of breach of implied warranties of merchantability and fitness for a particular purpose along with two derivative claims for loss of consortium. The underlying facts involve the female Plaintiff having purchased a canister of hairspray that was manufactured by Sebastian International, Inc. and sold to CVS where the Plaintiff purchased the hairspray.

The Plaintiff alleges that the hairspray canister did not notify customers that 10 and 1 ½ hours after applying Sebastian Shaper Plus Hairspray the product could cause hair to become inflamed in such a manner so as to cause injuries. More specifically, the Plaintiff stated that she originally used the hairspray at about 4:30 p.m. on January 26, 2006. Later, at approximately 3:00 a.m. on or about January 27, 2006, the Plaintiff lit a cigarette and her hair immediately caught fire resulting in burn injuries.

With regards to the subject Motion to Dismiss for failure to prosecute, the court noted that, after the filing of that motion by the Defendants, the Plaintiffs’ original attorney withdrew his appearance and was replaced by new counsel.

The Defendants argued in their motion that there had been no docket activity in the matter since June of 2009. The Defendant additionally argued that there had been no depositions scheduled or conducted. It was additionally asserted that the sale of the product at issue took place over six (6) years ago. The Defendants alleged severe prejudice in the form of an inability to locate witnesses.

In response, the new Plaintiff’s attorney asserted that the Plaintiffs had previously cooperated with their original counsel in moving the case ahead. The new counsel also indicated that they recently received the file from the former Plaintiff’s attorney and was in the process of preparing to proceed with discovery. Plaintiffs also asserted that the Defendants had not established any “actual prejudice” as a result of any alleged delay in the litigation.

After reviewing the applicable law which provides that a judgment of non pros may be properly entered only if:

(1) A party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude;

(2) There is no compelling reason for the delay; and,

(3) The delay has caused some prejudice to the adverse party.

See James Bros. Lumber Co. v. Union Banking & Trust Co. of DuBois, 247 A.2d 587 (Pa. 1968).

Judge Nealon also noted that the more recent Pennsylvania Supreme Court case of Captline v. County of Allegheny, 718 A.2d 273, 274 (Pa. 1998) required a Defendant to show “actual prejudice” in order to prevail on a Motion for Judgment of Non Pros.

After applying the law to the case at hand, Judge Nealon found that the Defendants had not identified any actual prejudice that they had suffered from the 26 month delay in the proceedings. The Court rejected the Defendants’ bald claims that they “may” experience difficulty in locating witnesses or that those witnesses’ memories “may” have faded. The court also noted that the Plaintiffs had confirmed that they have preserved the actual product as well as exemplars of the product for the Defendants’ inspection.

Accordingly, the Court denied the Defendants’ Motion for Judgment Non Pros. However, Judge Nealon went further and placed deadlines on the case to move it ahead in discovery.

Anyone desiring a copy of this Opinion of Judge Nealon in the case of Gallati v. Sebastian International, Inc. may click here.

Anyone desiring to review summaries of two other recent Motion for Judgment of Non Pros cases out of Lackawanna County with a contrary result, i.e., such motions were granted due to a Plaintiff’s lack of due diligence and prosecuting the case, may click here and here.

Assumption of Risk Defense Remains Valid in Pennsylvania

Judge Albert H. Masland of the Cumberland County Court of Common Pleas recently issued an Opinion in the case of Snoke v. Anderson, No. 03-03715 Civil Term (C.P. Cumb. Co. Feb. 10, 2012 Masland, J.), in which he addressed, in part, the continuing validity of the assumption of risk doctrine under Pennsylvania law.

The underlying facts as provided from defense counsel were, as follows.  The Plaintiff and his family rented a cabin in the Cumberland County mountains from the Defendants.

The Plaintiff was riding his dirt bike down a grassy area when he claims he struck an unidentified object that caused his vehicle to stop "like he hit a brick wall."  The Plaintiff put his left foot on the ground in an attempt to regain control, but the dirt bike fell on top of him, allegedly causing personal injuries.

Approximately two months after the accident, the Plaintiff and a friend returned to the scene of his accident and located a pipe, approximately three inches in diameter, that protruded from the grassy area about 1/4 inch to 1 1/4 inches at its maximum. The Plaintiff concluded that this pipe must have been the cause of the accident.

At trial, plaintiff testified that he had been riding dirt bikes on this property for over 30 years, and that he knew riding dirt bikes could be dangerous because you don't always know what types of things you might encounter while riding.

The Defendants' motorcycle accident reconstruction expert testified that not only could the accident not have happened in the manner described by the Plaintiff, but even if the dirt bike had encountered the pipe, it would have simply rolled right over it.

Information provided also reveals that the trial court listed the assumption of risk question as the first question on the verdict slip for the jury to consider.

The jury found that Plaintiff assumed the risk of his injury, and returned a defense verdict after approximately less than 30 minutes of deliberation.

The Plaintiff filed a motion for post-trial relief, arguing that because the court denied Defendants' motion for compulsory non-suit, it was thereafter barred from instructing the jury on assumption of the risk. The defense argued that the Plaintiff waived this issue by not specifically objecting to it during trial, and that the evidence presented during trial supported the assumption of the risk instruction.

The trial court agreed with the defense on both points and denied plaintiff's post-trial motion. Plaintiff did not appeal to the Superior Court.

Judge Masland's opinion is notable in that he held that there are cases allowing the assumption of the risk argument to go to the jury even after a non suit has been denied.

I send thanks to Christopher Reeser and Lauren Burnette of the Harrisburg, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Anyone desiring a copy of this opinion in the case of Snoke v. Anderson may contact me at dancummins@comcast.net.