In his recent Opinion in the case of Owens v. Wal-Mart Stores East, L.P., 2010 W.L. 4867, 3:10-CV-862 (M.D. Pa. Oct. 12, 2012 Mariani, J.), Judge Robert D. Mariani of the United States District Court for the Middle District of Pennsylvania addressed a Plaintiff’s failure to identify any experts during the course of discovery in a federal court slip and fall matter.
The Plaintiff’s attorney indicated that he intended to bring his medical experts to testify live at trial. In Owens, the defense filed a Motion In Limine seeking to preclude the Plaintiff from presenting any medical experts at trial given the Plaintiff’s failure to designate experts or supply any expert reports prior to trial as required by F.R.C.P. 26(a)(2)(B).
The Court ruled that, because the Plaintiff never produced a medical expert report from the treating physician prior to trial, but instead only indicated that the physician would be testifying live at trial, the treating physician’s testimony would be limited to what was contained in the treating physician’s medical records. Accordingly, the Court ruled that the treating physician was not permitted to give testimony on causation except to the extent that it was expressed unambiguously in the treating physician’s records.
In this decision, the Court also precluded the Plaintiff from introducing any lay opinion testimony regarding her medical condition, prognosis, or on the issue of causation.
I send thanks to Attorney Bill Mabius for forwarding this case to my attention.
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
Tuesday, November 6, 2012
Thursday, November 1, 2012
Two Recent Notable Decisions From Lackawanna County Judge Carmen D. Minora
Standard for Motion for Recusal
In his October 1, 2012 Opinion in the case of Minor v. Erie Insurance Company, No. 2009 - CV - 1579 (C.P. Lacka. Co. Oct. 1, 2012 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas rejected the carrier’s Motion for the judge to recuse himself from further involvement in this matter involving an insurance coverage dispute.
This matter arose out of a first party medical benefits dispute involving approximately $20,000.00 in medical bills and attorney’s fees. The case initially went through a court system arbitration at which the Plaintiff prevailed, followed by an appeal up to the jury trial level.
The parties came before Judge Minora at a Settlement Conference. At the conference, the Court recommended that the parties settle, given the time commitment, the costs associated with a jury trial, and given the relatively small amount of money at issue.
The Defendant moved for the Court to recuse itself under an argument that the Court had shown bias towards the Plaintiff at the conference. The Court denied the motion and the Defendant moved for a reconsideration of that decision.
In this Opinion, Judge Minora denied the Defendant’s Motion for Reconsideration. Judge Minora's detailed Opinion provides a thorough recitation of the standard of review by a trial court judge for a motion for recusal.
In its ruling the Court in this matter noted that, generally speaking, a party seeking to recuse a judge must show evidence of bias, interest, unfairness, or other disqualifying factors. The Court must then make an independent self-analysis of its ability to be impartial, followed by an analysis of whether the Court’s continued involvement in the case would create an appearance of impropriety.
The Court in this matter concluded that it made an impartial decision that the Defendant had not made a good faith effort to resolve the case during the Settlement Conference as required by the Pennsylvania Rules of Civil Procedure. The Court also determined that its continued involvement in the case would not create an appearance of impropriety. The Court noted that it would be the jury, not the Court, that would render the ultimate decisions on the issues presented at trial. As such, the motion for recusal was denied.
Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.
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| Judge Carmen D. Minora Lackawanna County Court of Common Pleas |
Negligent Entrustment
Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently had another opportunity to address the issues surrounding a cause of action for negligent entrustment in the case of Guffey v. Kyriazis, No. 2009 - CV - 2308 (C.P. Lacka. Co. Sept. 21, 2010 Minora, J.).
In this matter, Plaintiff’s vehicle was rear-ended by the Defendant driver, who was allegedly under the influence of alcohol at the time of the accident. After the accident, the Defendant driver fled the scene and hid in his basement. When the police arrived at his home, the Defendant allegedly fled through the back door. The Plaintiff claims that the Defendant driver fled because he was intoxicated.
The Plaintiff filed a Complaint against the Defendant driver and the owner of the Defendant’s vehicle. According to the Opinion, both Defendants co-owned the vehicle.
The Defendants moved for partial summary judgment under an argument that one co-owner of a vehicle cannot “entrust” the vehicle to the other co-owner under the context of a negligent entrustment claim.
Judge Minora noted that §308 of the Restatement (Second) of Torts defines the tort of negligent entrustment as when an actor permits another person to use a thing or engage in an activity when the actor knows or should know that the individual is likely to create a risk of harm to others. The Court also noted that Pennsylvania law has further established that the tort of negligent entrustment applies in a motor vehicle accident case when the owner of a vehicle entrusts that vehicle to an intoxicated person.
However, Judge Minora noted that, under the facts of the Guffey case, each of the co-owners of the vehicle had unfettered access to the vehicle and there was no legal right of one co-owner to withhold access to the vehicle from the other co-owner. As such, given that the Defendants were co-owners of the vehicle, “the act of entrustment never actually occurred.”
Accordingly, the Court dismissed the non-driver co-owner Defendant from this matter.
Judge Minora further ruled that the Plaintiffs did not have sufficient evidence of the Defendant driver’s alleged intoxication to support a claim of reckless indifference against that Defendant. The Court noted that proof of intoxication is relevant to a recklessness claim and that some Courts have held that a Plaintiff must present corroborating evidence on the issue of intoxication in order to pursue such a claim.
In this matter, the Plaintiff was unable to present any evidence of intoxication on the part of the Defendant driver because he had fled on the night of the accident. Judge Minora held that the mere act of fleeing was not enough to establish that the Defendant driver was intoxicated as there may have been numerous possible reasons for that Defendant’s actions. As such, the Plaintiff’s claim of reckless indifference was dismissed as well.
Anyone desiring a copy of this decision in Guffey v. Kyriazis may contact me at dancummins@comcast.net.
Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently had another opportunity to address the issues surrounding a cause of action for negligent entrustment in the case of Guffey v. Kyriazis, No. 2009 - CV - 2308 (C.P. Lacka. Co. Sept. 21, 2010 Minora, J.).
In this matter, Plaintiff’s vehicle was rear-ended by the Defendant driver, who was allegedly under the influence of alcohol at the time of the accident. After the accident, the Defendant driver fled the scene and hid in his basement. When the police arrived at his home, the Defendant allegedly fled through the back door. The Plaintiff claims that the Defendant driver fled because he was intoxicated.
The Plaintiff filed a Complaint against the Defendant driver and the owner of the Defendant’s vehicle. According to the Opinion, both Defendants co-owned the vehicle.
The Defendants moved for partial summary judgment under an argument that one co-owner of a vehicle cannot “entrust” the vehicle to the other co-owner under the context of a negligent entrustment claim.
Judge Minora noted that §308 of the Restatement (Second) of Torts defines the tort of negligent entrustment as when an actor permits another person to use a thing or engage in an activity when the actor knows or should know that the individual is likely to create a risk of harm to others. The Court also noted that Pennsylvania law has further established that the tort of negligent entrustment applies in a motor vehicle accident case when the owner of a vehicle entrusts that vehicle to an intoxicated person.
However, Judge Minora noted that, under the facts of the Guffey case, each of the co-owners of the vehicle had unfettered access to the vehicle and there was no legal right of one co-owner to withhold access to the vehicle from the other co-owner. As such, given that the Defendants were co-owners of the vehicle, “the act of entrustment never actually occurred.”
Accordingly, the Court dismissed the non-driver co-owner Defendant from this matter.
Judge Minora further ruled that the Plaintiffs did not have sufficient evidence of the Defendant driver’s alleged intoxication to support a claim of reckless indifference against that Defendant. The Court noted that proof of intoxication is relevant to a recklessness claim and that some Courts have held that a Plaintiff must present corroborating evidence on the issue of intoxication in order to pursue such a claim.
In this matter, the Plaintiff was unable to present any evidence of intoxication on the part of the Defendant driver because he had fled on the night of the accident. Judge Minora held that the mere act of fleeing was not enough to establish that the Defendant driver was intoxicated as there may have been numerous possible reasons for that Defendant’s actions. As such, the Plaintiff’s claim of reckless indifference was dismissed as well.
Anyone desiring a copy of this decision in Guffey v. Kyriazis may contact me at dancummins@comcast.net.
Tuesday, October 30, 2012
Nine Insurance-Themed Halloween Costumes
Here is a link to a humorous list of nine insurance themed Halloween costumes put together by Caterina Pontoriero of www.PropertyCasualty360.com. Enjoy:
http://www.propertycasualty360.com/2012/10/24/9-insurance-halloween-costumes
Source of image: www.freestockphotos.biz
Monday, October 29, 2012
Separate Rulings For Separate Injuries in Single Lawrence County Limited Tort Case
Summary Judgment in favor of a Defendant was recently denied in part and granted in part in the Lawrence County Limited Tort case of Dengler v. Marsh, PICS Case No. 12-1964 (C.P. Lawrence Co. Oct. 3, 2012 Motto, P.J.).
The Plaintiff in this matter was involved in a motor vehicle accident during which her vehicle was allegedly hit from the rear and caused to strike a vehicle ahead. During the course of the accident, the Plaintiff allegedly hit her forehead on the rear view mirror and was bleeding from a 3 cm abrasion. The Plaintiff was able to exit the vehicle under her own power.
About four hours after the accident, the Plaintiff reported to the emergency room where she complained of the abrasion to her forehead and neck and shoulder pain. An x-ray was negative for any cervical fracture. The Plaintiff was treated and released.
Thereafter, the Plaintiff began to experience neck and back pain. A CT scan of the Plaintiff’s back noted an old healed fracture at the level of L5 in her low back.
However, at a family doctor visit about six (6) weeks after the accident, the Plaintiff did not indicate that she was suffering any neck or back pain. At that visit, the Plaintiff’s primary physician noted that the Plaintiff appeared to be healthy and with no signs of any acute distress.
The Plaintiff, who was covered by the Limited Tort option at the time of the accident, eventually brought suit alleging serious injuries to her forehead, neck, and back. The Defendant eventually moved for summary judgment on the Limited Tort defense.
In response to the Defendant’s Motion, the Plaintiff produced an expert report from a chiropractor. The Plaintiff also offered up her own testimony that, when she performed household chores, her pain level increased. She also complained that, whenever she stood or walked for any length of time, she would be required to sit down due to her pain.
The Plaintiff’s chiropractor offered an opinion that the Plaintiff had a loss of body impairment to the extent that the Plaintiff was not able to perform all of her daily activities, such as cleaning or walking any distance, without suffering from increasing pain in her low back.
Based upon the record before the Court, President Judge Motto concluded that reasonable minds could differ on the question of whether or not the Plaintiff sustained a “serous injury” as that term is defined under the MVFRL. As such, the Court denied Defendant’s Motion for Summary Judgment with regard to the Plaintiff’s complaints of neck and back pain.
However, the Court separately considered the Plaintiff’s claim of a disfigurement and found that the Plaintiff had failed to demonstrate that she suffered a permanent serious disfigurement as a result of the 3 cm abrasion to her forehead so as to breach the Limited Tort threshold with respect to that particular injury. While the court acknowledge the presence of a scar in the form of a barely visible pale line on the Plaintiff's forehead, the scar was barely visible and could be covered by the Plaintiff wearing her hair down over her forehead.
Accordingly, after citing the case of Walsh v. Phillips, 38 Pa.D.&C.4th 178 (1997) as support, Judge Motto granted the Defendant’s Motion for Summary Judgment with respect to the disfigurement claim.
Anyone desiring a copy of this Opinion may click this LINK.
The Plaintiff in this matter was involved in a motor vehicle accident during which her vehicle was allegedly hit from the rear and caused to strike a vehicle ahead. During the course of the accident, the Plaintiff allegedly hit her forehead on the rear view mirror and was bleeding from a 3 cm abrasion. The Plaintiff was able to exit the vehicle under her own power.
About four hours after the accident, the Plaintiff reported to the emergency room where she complained of the abrasion to her forehead and neck and shoulder pain. An x-ray was negative for any cervical fracture. The Plaintiff was treated and released.
Thereafter, the Plaintiff began to experience neck and back pain. A CT scan of the Plaintiff’s back noted an old healed fracture at the level of L5 in her low back.
However, at a family doctor visit about six (6) weeks after the accident, the Plaintiff did not indicate that she was suffering any neck or back pain. At that visit, the Plaintiff’s primary physician noted that the Plaintiff appeared to be healthy and with no signs of any acute distress.
The Plaintiff, who was covered by the Limited Tort option at the time of the accident, eventually brought suit alleging serious injuries to her forehead, neck, and back. The Defendant eventually moved for summary judgment on the Limited Tort defense.
In response to the Defendant’s Motion, the Plaintiff produced an expert report from a chiropractor. The Plaintiff also offered up her own testimony that, when she performed household chores, her pain level increased. She also complained that, whenever she stood or walked for any length of time, she would be required to sit down due to her pain.
The Plaintiff’s chiropractor offered an opinion that the Plaintiff had a loss of body impairment to the extent that the Plaintiff was not able to perform all of her daily activities, such as cleaning or walking any distance, without suffering from increasing pain in her low back.
Based upon the record before the Court, President Judge Motto concluded that reasonable minds could differ on the question of whether or not the Plaintiff sustained a “serous injury” as that term is defined under the MVFRL. As such, the Court denied Defendant’s Motion for Summary Judgment with regard to the Plaintiff’s complaints of neck and back pain.
However, the Court separately considered the Plaintiff’s claim of a disfigurement and found that the Plaintiff had failed to demonstrate that she suffered a permanent serious disfigurement as a result of the 3 cm abrasion to her forehead so as to breach the Limited Tort threshold with respect to that particular injury. While the court acknowledge the presence of a scar in the form of a barely visible pale line on the Plaintiff's forehead, the scar was barely visible and could be covered by the Plaintiff wearing her hair down over her forehead.
Accordingly, after citing the case of Walsh v. Phillips, 38 Pa.D.&C.4th 178 (1997) as support, Judge Motto granted the Defendant’s Motion for Summary Judgment with respect to the disfigurement claim.
Anyone desiring a copy of this Opinion may click this LINK.
Friday, October 26, 2012
Recent Large Luzerne County MVA Verdict
In a case not involving my firm, a Luzerne County jury issued a large verdict earlier this week in a motor vehicle accident matter involving a fatality. Here are links to local news stories on the verdict:
http://www.timesleader.com/stories/Estate-is-awarded-3-million-in-death,221897
http://m.citizensvoice.com/news/outrageous-conduct-nets-3m-verdict-1.1393898
http://www.sungazette.com/page/content.detail/id/584997/Hope-must-pay--3-1-million-to-victim-s-family.html?nav=5011
http://www.timesleader.com/stories/Estate-is-awarded-3-million-in-death,221897
http://m.citizensvoice.com/news/outrageous-conduct-nets-3m-verdict-1.1393898
http://www.sungazette.com/page/content.detail/id/584997/Hope-must-pay--3-1-million-to-victim-s-family.html?nav=5011
Thursday, October 25, 2012
Montour County Post-Koken Decision On Consolidation vs. Severance of Claims
In his recent October 10, 2012 decision in the case of Slaterbeck v. Sutsko and Erie Insurance,
No. 237-CV-2012 (C.P. Montour Co. Oct. 12, 2012 Norton, J.), Judge Gary E.
Norton of the Montour County Court of Common Pleas issued a decision in which
he overruled the Preliminary Objections of the UIM carrier, Erie Insurance
Company, to the joinder of actions in this post-Koken case. As such, Montour County
In his decision, Judge Norton expounded on the Rule 411 evidence issue as well. After finding that consolidation was favored due to policy considerations in terms of judicial economy, the avoidance of multiple lawsuits, and concerns regarding possible inconsistent verdicts, Judge Norton also stated that “Pa. R.E. 411, which otherwise precludes introduction of evidence regarding liability insurance, is not applicable since UM and UIM coverage does not involve third party “liability” insurance of the Defendant/alleged tortfeasor.” Judge Norton further believed that the “[p]olicy considerations underlying the prohibition in Pa. R.E. 411 are not applicable” in post-Koken cases.
However, in this Slaterbeck decision, the court also separately upheld Erie Insurance’s forum selection clause and ordered that the case be transferred to Clinton County in light of the language of that clause which required the case to be brought in the county of the insured’s domicile at the time of the accident.
As such, the court ultimately severed the Plaintiff’s UM/UIM claims against Defendant Erie and transferred those claims to the Clinton County Court of Common Pleas with the cost and fees related to the transfer and removal of the record to be paid by the Plaintiff pursuant to Pa. R.C.P. 1006(a).
Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.
In his decision, Judge Norton expounded on the Rule 411 evidence issue as well. After finding that consolidation was favored due to policy considerations in terms of judicial economy, the avoidance of multiple lawsuits, and concerns regarding possible inconsistent verdicts, Judge Norton also stated that “Pa. R.E. 411, which otherwise precludes introduction of evidence regarding liability insurance, is not applicable since UM and UIM coverage does not involve third party “liability” insurance of the Defendant/alleged tortfeasor.” Judge Norton further believed that the “[p]olicy considerations underlying the prohibition in Pa. R.E. 411 are not applicable” in post-Koken cases.
However, in this Slaterbeck decision, the court also separately upheld Erie Insurance’s forum selection clause and ordered that the case be transferred to Clinton County in light of the language of that clause which required the case to be brought in the county of the insured’s domicile at the time of the accident.
As such, the court ultimately severed the Plaintiff’s UM/UIM claims against Defendant Erie and transferred those claims to the Clinton County Court of Common Pleas with the cost and fees related to the transfer and removal of the record to be paid by the Plaintiff pursuant to Pa. R.C.P. 1006(a).
Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.
I send thanks to Attorney Lee Albright , Esquire of the Scranton , Pennsylvania
Judge Nealon Addresses Rule 213(a) Motion for Joint Trial
In his recent October 1, 2012 Opinion in the case of Fraynert v. Delaware and Hudson Railway Co., Inc., No. 2005-CV-1822 (C.P. Lacka. Co. Oct. 1, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiffs’ Motion for a Joint Trial in a case involving eight (8) retired railroad workers who sued their former employer under the Federal Employer’s Liability Act (FELA) for pulmonary damage allegedly caused by negligent exposure to coal dust and diesel fumes. The Plaintiffs filed the Motion for Joint Trial under Pa. R.C.P. 213(a).
In his Opinion, Judge Nealon provides a thorough analysis of the test to be applied in deciding a Motion for a joint trial filed under Pa. R.C.P. 213(a).
In this matter, the court noted that the Plaintiffs sought to recover non-economic damages under the same federal statute and represented that they would present, and oppose, expert testimony from the same two medical witnesses. It was also noted that many of the Plaintiffs worked at common locations and performed identical job tasks and, as such, would offer comparable testimony regarding their working conditions and exposure to coal dust and diesel fumes at those sites.
Accordingly, the court held that the eight (8) FELA cases involved common questions of law and fact that warranted the joinder of the cases for trial.
Judge Nealon also found that the considerations of judicial economy supported the consolidation for trial as a joint trial would require only one jury and would consume 8-10 days of trial while separate trials would necessitate eight juries and 24-32 trial days.
Due to the common issues of law and fact in these separate matters, the cost savings resulting from a joint trial, and due to the lack of any prejudice from such a consolidation, the court granted the Plaintiffs’ Motion for a Joint Trial pursuant to Pa. R.C.P. 213(a).
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
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| Judge Terrence R. Nealon |
In this matter, the court noted that the Plaintiffs sought to recover non-economic damages under the same federal statute and represented that they would present, and oppose, expert testimony from the same two medical witnesses. It was also noted that many of the Plaintiffs worked at common locations and performed identical job tasks and, as such, would offer comparable testimony regarding their working conditions and exposure to coal dust and diesel fumes at those sites.
Accordingly, the court held that the eight (8) FELA cases involved common questions of law and fact that warranted the joinder of the cases for trial.
Judge Nealon also found that the considerations of judicial economy supported the consolidation for trial as a joint trial would require only one jury and would consume 8-10 days of trial while separate trials would necessitate eight juries and 24-32 trial days.
Due to the common issues of law and fact in these separate matters, the cost savings resulting from a joint trial, and due to the lack of any prejudice from such a consolidation, the court granted the Plaintiffs’ Motion for a Joint Trial pursuant to Pa. R.C.P. 213(a).
Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.
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