Court Rules That Peer Review Documents Sought In Medical Malpractice Action are Discoverable

In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Leh. Co. Oct. 3, 2022 Caffrey, J.), the court ruled that patient safety reports that the Plaintiff sought in discover from the Defendants in this medical malpractice action were solely prepared for compliance with the Medical Care Availability and Reduction of Error Act reporting requirements. 

The court noted that the Peer Review Protection Act grants qualified immunity for healthcare providers participating in a peer review process and establishes an evidentiary privilege applicable to peer review proceedings to protect the process which is designed to improve the practice of medicine.

However, the court noted that these documents were not immune from discovery because they did not arise out of matters reviewed by a patient safety committee.  It was emphasized that the documents at issue consisted of information that was otherwise available from original sources.  As such, the court vacated a prior Order and issued a new Order granting discovery.

The court granted this Motion after an in-camera review of the documents at issue.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 6, 2022).

Source of image:  National Cancer Institute on www.unsplash.com.

Judge Mariani Excuses Technical Error In Service of Process Where Plaintiff Made Good Faith Efforts

In the case of Kerr v. Sagan, No. 3:21-CV-0459 (M.D. Pa. Oct. 13, 2022 Mariani, J.), the court denied a Motion to Dismiss in a Federal Court motor vehicle accident matter, which Motion was based upon issues regarding service of process and the statute of limitations.

The defense argued that the Plaintiff's claims were time-barred because the Plaintiff did not effectuate service before the statute of limitations expired.  This case initially started in the state court and was then removed to Federal Court.

The defense proceeded with a Rule 12(b)(6) Motion to Dismiss for failure to state a cause of action upon which relief may be granted and a Rule 12(b)(5) Motion to Dismiss for failure to complete service.    

The Court noted that because the record confirmed that service was finally completed before the case was removed to Federal Court, the validity of the service upon the out-of-state defendant would be determined under an application of Pennsylvania law.

The court found that the case before it was not facially barred by the statute of limitations.

Judge Robert D. Mariani
M.D.Pa.

Judge Mariani noted that, although the initial effort at service by First Class Mail was technically improper under Pennsylvania law, and although the Complaint was not reinstated until after the expiration of the statute of limitations, in the interim, the Plaintiff had made good faith efforts to try to complete service where the Plaintiff had actually tried to complete service in a timely fashion.

The Court also noted that the parties had engaged in active settlement negotiations which demonstrated that the Defendant had adequate notice of the pendency of the litigation.

The court additionally noted that a Plaintiff who incorrectly but genuinely believes that he or she has effectuated service cannot be expected to make continuing service efforts.

Notably, Judge Mariani distinguished between "a plaintiff who attempts service of process, knows it was a failed attempt, and declines to remedy it, and a plaintiff who incorrectly but genuinely believes he has effectuated service and therefore does not make additional attempts.

In light of the above, the court found that the Plaintiff did not intentionally stall the litigation such that dismissal under the law of Lamp v. Heyman was required.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


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

Source of image:  Photo by Nathan Dumlao on www.unsplash.com.

Default Judgment Worth $1 Million Dollars Opened Due to Fatal Defects in the Record

In the case of Grady v. Nelson, No. 2115 EDA 2021 (Pa. Super. Oct. 21, 2022 Stabile, J., Dubow, J., and Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed a trial court Order in which the trial court denied a Defendant’s Petition to Strike or Open a Default Judgment.

On appeal, the Pennsylvania Superior Court ruled that a Sheriff’s Return of Service indicating the non-existence of an address was conclusive on its face to render a Petition to Strike or Open Default Judgment meritorious as it was apparent from the record that the Defendant had not been afforded notice of the proceedings.

According to the Opinion, this matter arose out of a shooting incident on premises owned by the Defendant. The court noted that a default judgment was entered against the Defendant in the amount of $1 million dollars.

The Superior Court opened the judgment after finding two (2) fatal defects that existed on the face of the record. One, the court found that there was conclusive evidence that the Plaintiff had served the Complaint and the judgment notices on a non-existent address, thereby depriving the Defendant of notice that this action was pending against him.

Also, the court found that the Plaintiff’s 10-Day Notice of Intent to Enter a Default Judgment did not substantially comply with the language required under Pa. R.C.P. 237.5 and 237.1.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 15, 2022).

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

HAPPY HOLIDAYS - Annual Holiday Gift From Tort Talk

Here is the LINK to a complimentary copy of the 161 paged 2022 Tort Talk Civil Litigation Update booklet that I created for use at my recent year-end civil litigation update CLE. 

The 2022 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here free of charge for the readers of Tort Talk.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2022 Civil Litigation Update, please simply go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which there should be a LINK to the actual Opinion.

I not that the PBI sells its annual Civil Litigation Update Booklet for approximately $69.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

To the extent you may have a desire to pay it forward this holiday season, I would politely propose considering making a small donation to a charity or a non-profit organization such as Lackawanna Pro Bono or The Children's Advocacy Center, or send out some act or acts of kindness this holiday season and beyond.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is much appreciated.

HAPPY HOLIDAYS!

Source of top image:  Photo by Monstera on www.pexels.com.

Court Denies Plaintiff Right to File Amended Complaint to Correct Name of the Defendant Driver After Plaintiff Waited Too Long To Do So

In the case of Myrick v. Hall, April Term 2020, No. 00794 (C.P. Phila. Co. Aug. 15, 2022 Shreeves-Johns, J.), the court affirmed the trial court’s Order granting a Motion to Dismiss and denying a Plaintiff’s Motion for Leave to file an Amended Complaint to correct the name of the Defendant driver. in the Complaint.

In its decision, the court focused upon the fact that, although the Plaintiff knew that they had sued the wrong party in the Complaint’s caption, the Plaintiff did not seek to cure this defect until after the applicable statute of limitations had expired.

The court pointed to Supreme Court precedent holding that, where the statute of limitations has run, amendments will not be allowed to introduce a new cause of action or to bring in a new party.

The court emphasized that, based upon the Plaintiff’s own admission, the Plaintiff was aware that an adult male was driving the vehicle involved in the subject accident, but nevertheless chose to name a female as the Defendant driver in the Complaint. It turned out that the husband of the named Defendant driver was the actual driver during the course of the accident.

The court noted that the Plaintiff did not act with haste and took over six (6) months to attempt to cure the defects in their pleading after having become aware of the actual driver’s identity.

As such, in the Rule 1925 Opinion, the trial court asserted that it did not abuse its discretion by granting the named Defendant driver’s motion to dismiss and denying the Plaintiff’s request for leave to amend the Complaint to identify the correct driver.

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

Source of Image:  Photo by Varvara Grabova on www.unsplash.com.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

 

Strict Liability Failure to Warn Claims Fail Where Plaintiffs Did Not Read Warnings

In the case of Mains v. The Sherwin-Williams Co., 5:20-CV-00112 (E.D. Pa. Nov. 10, 2022 Gallagher, J.), the Eastern District Court of Pennsylvania addressed the validity of a warning defect theory put forth by a Plaintiff in a products liability case.

This matter arose out of an incident during which the Plaintiff's deck caught on fire.  The Plaintiffs alleged that the product they used to stain their deck self-heated and caused a fire on their property.  More specifically, the Plaintiff's alleged that they placed application materials with the product left on it on the lawn next to the dect after which those items spontaneously caught fire.   

The court ruled that the Plaintiff’s warning defect theory failed as a matter of law because the Plaintiff admitted in this case that they never even read the warning label on the Defendant’s product.

The court therefore found that an unread warning could not be a cause of an injury in a products liability claim. 

The court also noted that the Plaintiff did not show any way that a “reminder warning” might have prevented the accident.

In this particular matter, the court also found that the Plaintiff’s failure to warn claim was also preempted by the Hazardous Substances Act because that Act did not require the Defendant to include a spontaneous combusting warning on the label as a principal hazard.

The court also confirmed that, in any event, the warning label on the product contained the words 'DANGER' and 'COMBUSTIBLE,' and further informed users of the product that 'rags, steel wool, other waste soaked with this product...may catch fire if impropertly discarded.'  Users were advised to discard such waste in a sealed water filled metal container.     

The court additionally noted that the Plaintiff was unable to establish any design or manufacturing defect because the Plaintiff’s lacked any expert evidence that the product, whether it was defective or not, actually caused the fire that injured them.

The court confirmed that the Plaintiff did not identify a cause and origin expert with regards to the fire in question. It was additionally held that lay opinion testimony is speculative and no substitute for expert fire causation testimony, particularly where there were possible alternative origins for the fire in this case. The court also noted that scientific knowledge about the chemical components of the product and their corresponding combustibility was beyond the understanding of a layperson and, therefore, required the testimony of an expert.

The court also found that the Plaintiff could not rely upon a malfunction theory of liability to establish an alleged manufacturing defect because the Plaintiffs did not have the expert testimony necessary to eliminate other possible causes.

The court also found that the Plaintiff’s implied warranty of merchantability claim was similar to a strict liability claim and that this implied warranty of merchantability claim failed because the Plaintiffs were not able to establish a product defect.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


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

Source of Image:  Photo by Pontius Wellgraf on www. Pexels.com.

Court Addresses Admissibility of Photographs at Trial

In the case of Saahir v. Albert Einstein Med. Center, December Term 2017, No. 03298, (C.P. Phila. Co. Aug. 25, 2022 Foglietta J.), the court found that photographs documenting a decedent’s painful injuries while the decedent was in the hospital were relevant to the Plaintiff’s wrongful death and survival claims. The court, in this Rule 1925 Opinion, recommended affirmance of its ruling in favor of the admission of the photographs at trial.

In its Opinion, the court noted that the Defendant’s argument regarding a discrepancy in the date of the photos went to the weight of such evidence and not the admissibility of the evidence.

The court in its Opinion provides a nice summary of the law of admissibility at trial in this regard, including with respect to whether the prejudicial effect of the evidence outweighs any probative value of the evidence.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2022).