In its recent decision in the case of Selective Way Insurance vs. Hospitality Group Service, 2015 Pa. Super. 146 (Pa. Super. July 7, 2015), the Pennsylvania Superior Court ruled that the statute of limitations for the filing of a declaratory judgment action by an insurance company on the duty to defend and/or indemnify begins to run when the cause of action for declaratory judgment arises.
More specifically, the court stated that a determination as to when the cause of action for a declaratory judgment arises requires a determination by the trial court of when the insurance company had sufficient factual basis to support contention that it had no duty to defend or indemnify its insured in the underlying matter.
The Majority Opinion by Judge Donohue can be viewed HERE.
The Dissenting Opinion by President Judge Emeritus Ford Elliott can be viewed HERE.
The Dissenting Opinion by Judge Mundy can be viewed HERE.
Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (August 3, 2015).
Wednesday, August 12, 2015
Monday, August 10, 2015
Tort Talk Expo 2015 CANCELLED Due to Trial Schedule
I regret to announce that a looming trial schedule set for September and
October, including a two week trial in September, is forcing me to cancel the
September 24, 2015 Tort Talk Expo CLE and Cocktail reception at the Mohegan Sun
Casino.
I apologize for any inconvenience and will keep you advised as to any
future events.
If you have sent in payment for a sponsorship or to attend, a full refund will be sent back shortly.
Thank you.
Judge Minora of Lackawanna County Rules on Jury Selection Issues.
In his recent decision on post-trial motions in the medical malpractice case of Carlitz v. Delta Medix, No. 2011-CV-1458 (C.P. Lacka. Co. July 15, 2015, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed, in part, the issue of whether the court should have stricken prospective jurors for cause based upon their situation on financial relationships with a Defendant medical provider and a Defendant doctor.
The court noted that, in support of their challenge for cause during jury selection, Plaintiff cited to the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied, 102 A.3d 986 (Pa. 2014). The Plaintiffs otherwise objected to the fact that they were required to use their peremptory challenges on certain perspective jurors who had treated with a Defendant medical provider and/or the Defendant's expert witness doctor, or who had been employed by one of the Defendants. According to the opinion, overall, the Plaintiffs had objections to at least four (4) of the jurors who were empaneled.
Judge Minora reviewed the law pertaining to the granting or denying of challenges to a prospective juror and applied that law to the case before him.
Although the court found that it need not rule on this jury issue because it already determined that the Plaintiffs were entitled to a new trial based upon other statements made by defense counsel during the course of the trial, Judge Minora nevertheless concluded that the Plaintiffs’ contention that certain prospective jurors should have been removed for cause is without merit (raising a question as to whether this portion of the decision amounts to dicta -- the decision is instructive in any event). Rather, the court believed that the Plaintiffs attempted to use cause challenges where peremptory challenges were required.
Judge Minora also emphasized that, at issue in this matter, where alleged relationships between the jurors and professional corporation Defendants as opposed to party Defendant positions, as was the case in the Cordes matter. Overall, Judge Minora stated that there was no case law holding that a situation or relationship warranting removal for cause arises from the fact that a prospective juror, or his or her relative, is a patient of a professional corporation Defendant or a non-party expert witness, or is employed by a non-party expert witness or his practice group.
Judge Minora did indicate that if the prospective jurors were indeed employees of a corporate Defendant or patients of a Defendant’s position, the court would have found merit in the Plaintiffs’ argument. However, those facts are not before the court. As such, the court found that there was no error of any kind during the jury selection process.
Judge Minora ended his opinion by stating that "All parties are entitled to a fair, objective and impartial jury of their peers, but not to a jury of their choosing." [citations omitted].
A copy of Judge Minora's Opinion, which includes his analysis in support of a granting of a new trial on other grounds, can be viewed HERE.
The court noted that, in support of their challenge for cause during jury selection, Plaintiff cited to the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied, 102 A.3d 986 (Pa. 2014). The Plaintiffs otherwise objected to the fact that they were required to use their peremptory challenges on certain perspective jurors who had treated with a Defendant medical provider and/or the Defendant's expert witness doctor, or who had been employed by one of the Defendants. According to the opinion, overall, the Plaintiffs had objections to at least four (4) of the jurors who were empaneled.
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| Judge Carmen D. Minora Lackawanna County |
Although the court found that it need not rule on this jury issue because it already determined that the Plaintiffs were entitled to a new trial based upon other statements made by defense counsel during the course of the trial, Judge Minora nevertheless concluded that the Plaintiffs’ contention that certain prospective jurors should have been removed for cause is without merit (raising a question as to whether this portion of the decision amounts to dicta -- the decision is instructive in any event). Rather, the court believed that the Plaintiffs attempted to use cause challenges where peremptory challenges were required.
Judge Minora also emphasized that, at issue in this matter, where alleged relationships between the jurors and professional corporation Defendants as opposed to party Defendant positions, as was the case in the Cordes matter. Overall, Judge Minora stated that there was no case law holding that a situation or relationship warranting removal for cause arises from the fact that a prospective juror, or his or her relative, is a patient of a professional corporation Defendant or a non-party expert witness, or is employed by a non-party expert witness or his practice group.
Judge Minora did indicate that if the prospective jurors were indeed employees of a corporate Defendant or patients of a Defendant’s position, the court would have found merit in the Plaintiffs’ argument. However, those facts are not before the court. As such, the court found that there was no error of any kind during the jury selection process.
Judge Minora ended his opinion by stating that "All parties are entitled to a fair, objective and impartial jury of their peers, but not to a jury of their choosing." [citations omitted].
A copy of Judge Minora's Opinion, which includes his analysis in support of a granting of a new trial on other grounds, can be viewed HERE.
Photo From Pennsylvania Conference of State Trial Judges Presentation on Post-Koken Issues
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| L. to R.: Scott Cooper, Judge Terrence R. Nealon, Dan Cummins |
Post-Koken issues will also be the focus of my presentation at the Tort Talk Expo 2015 set for September 24, 2015 at the Mohegan Sun Casino. Judge Nealon has agreed to repeat his presentation on jury instructions in Post-Koken matters as well.
To register to attend the Tort Talk Expo CLE and Cocktail Reception, please go to www.TortTalk.com and click on the Registration Links in the upper right hand corner of the blog.
Thanks.
Thursday, August 6, 2015
No Strict Liability Claims for Medical Products/Devices
In two separate recent Pennsylvania Federal Court
decisions, courts have ruled that Pennsylvania law does not allow for strict
liability claims against prescription medical products, including medical
devices.
In Cogswell v. Wright Medical Technology, 2015 U.S. Dist. Lexis 92461 (W.D. Pa. July 16, 2015 Bissoon, J.), the court granted in part and denied in part a motion to dismiss and held that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices. The court otherwise noted that strict liability manufacturing defect claims are barred. Rather, negligence was found to be the only permitted theory. The court additionally held that express and implied warranty claims were barred.
In the separate decision of Wilson v. Synthes United States Products, LLC, NO. 2:2015-cv-00295, 2015 U.S. Dist. Lexis 92347 (E.D. Pa. July 15, 2015 Schmehl, J.), the court granted in part and denied in part a motion to dismiss in a products case. Similar to the Cogswell decision, the court reasoned that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices. This court also noted that strict liability manufacturing defect claims were barred. However, the negligence claims were found to be adequately pled. This court also noted that Pennsylvania does not recognize a claim for negligent marketing, except when the conduct rises to overpromotion.
I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith and writer of the great Drug and Device Law Blog for bringing these cases to my attention.
The Cogswell decision can be viewed HERE.
The Wilson decision can be viewed HERE.
In Cogswell v. Wright Medical Technology, 2015 U.S. Dist. Lexis 92461 (W.D. Pa. July 16, 2015 Bissoon, J.), the court granted in part and denied in part a motion to dismiss and held that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices. The court otherwise noted that strict liability manufacturing defect claims are barred. Rather, negligence was found to be the only permitted theory. The court additionally held that express and implied warranty claims were barred.
In the separate decision of Wilson v. Synthes United States Products, LLC, NO. 2:2015-cv-00295, 2015 U.S. Dist. Lexis 92347 (E.D. Pa. July 15, 2015 Schmehl, J.), the court granted in part and denied in part a motion to dismiss in a products case. Similar to the Cogswell decision, the court reasoned that Pennsylvania law does not allow strict liability claims against prescription medical products, including medical devices. This court also noted that strict liability manufacturing defect claims were barred. However, the negligence claims were found to be adequately pled. This court also noted that Pennsylvania does not recognize a claim for negligent marketing, except when the conduct rises to overpromotion.
I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith and writer of the great Drug and Device Law Blog for bringing these cases to my attention.
The Cogswell decision can be viewed HERE
The Wilson decision can be viewed HERE
Monday, August 3, 2015
Tort Talk Expo 2015 Fast Approaching - Please Registering Now To Ensure Your Seat
TORT TALK EXPO 2015
Thursday, September 24, 2015
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
(3 Substantive, 1 Ethics Credit)
Door Prizes - Vendor Giveaways - Raffle Prizes
AGENDA:
[Registration 11:30 am - 12 noon]
12:00 pm - 1:00 pm - "LESSONS FROM FORREST GUMP"
A TORT TALK AUTO LAW UPDATE
by Daniel E. Cummins, Esq. FOLEY, COMERFORD & CUMMINS
and
Lackawanna County Judge Terrence R. Nealon
and
Lackawanna County Judge Terrence R. Nealon
1:00 pm - 2:00 pm – CIVIL LITIGATION UPDATE
by Melissa A. Scartelli, Esq. SCARTELLI AND OLSZEWSKI
BREAK 2:00 pm – 2:15 pm
2:15 pm - 3:15 pm - MEDICAL HOUR
Dr. Sheryl Oleski – Low Back Pain Overview
NORTHEASTERN REHABILITATION ASSOCIATES
BREAK 3:15 pm – 3:30 pm
3:30 pm - 4:30 pm - VIEW FROM THE BENCH
Ethical Considerations for Settlement Conferences
and Other Dealings with the Court
MODERATOR:
Judith Price, Esq. Dougherty, Leventhal & Price
JUDICIAL PANELISTS
Pennsylvania Superior Judge Court Judge Christine Donohue
Luzerne County Judge Lesa Gelb
Lackawanna County Judge Margie Bisignani-Moyle
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
4:30 pm - 6 pm - POST-SEMINAR COCKTAIL RECEPTION
To Register, visit www.TortTalk.com and click on registration link
or mail check made out to "Tort Talk" and form below to:
Daniel E. Cummins, Esq.
Foley, Comerford & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503
Cost: $195 Attorneys; $25 Claims Representatives
NAME: ___________________________________________________
FIRM/COMPANY: _________________________________________
THANKS TO THE FOLLOWING TABLE VENDOR SPONSORS
FOR THE TORT TALK EXPO 2015
(Alphabetical Order)
ADR OPTIONS
AT THE SCENE
COURTSIDE DOCUMENTS
EXHIBIT A
HELBIG MEDIATION AND ARBITRATION
IME CARE CENTER
LOVE COURT REPORTING – A VERITEXT COMPANY
MEDICAL LEGAL REPRODUCTIONS
NORTHEASTERN REHABILITATION ASSOCIATES
RECORDTRAK
ROBSON FORENSIC
THE CENTER FOR FORENSIC AND ECONOMIC STUDIES
Judge Terrence R. Nealon Added to List of Presenters For Tort Talk Expo 2015 (Set for September 24, 2015)
I have added Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas to the list of presenters set for the September 24, 2015 Tort Talk Expo set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.
Judge Nealon will repeat his excellent presentation on "Jury Instructions & Practices in UM and UIM Trials" as part of my initial Auto Law Update presentation in the first hour of the CLE.
Judge Nealon has written two Opinions to date on the issue of proper jury instructions in the Post-Koken era and will cover those decisions as well as review what language other Judges have utilized in jury instructions in these new types of cases. His decisions, as well as other notable decisions, and jury instruction samples will be included in the written materials.
To register for the Tort Talk Expo 2015, please go to Tort Talk at www.TortTalk.com and view the LINKS in the upper right hand corner of the blog.
Thank you.
 |
| Judge Terrence R. Nealon |
Judge Nealon has written two Opinions to date on the issue of proper jury instructions in the Post-Koken era and will cover those decisions as well as review what language other Judges have utilized in jury instructions in these new types of cases. His decisions, as well as other notable decisions, and jury instruction samples will be included in the written materials.
To register for the Tort Talk Expo 2015, please go to Tort Talk at www.TortTalk.com and view the LINKS in the upper right hand corner of the blog.
Thank you.
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