Objection to IME Doctor's Reliance Upon Vehicle Damage Photos in Opinion Overruled

In his recent Opinion in the case of Rodriguez v. Broad, No. 7250-CV-2012 (C.P. Monroe Co. Feb. 5, 2016 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas denied a Plaintiff’s Motion In Limine seeking to preclude the testimony of the Defendant’s independent medical examination (IME) expert.  

According to the Opinion, the IME doctor issued a report indicating that he performed a history and physical examination of the Plaintiff and reviewed her medical records, radiographic studies, and photographs of the damages to the vehicles in rendering his opinion.  

The Plaintiff filed a Motion In Limine complaining that the IME doctor’s conclusions that the alleged injuries of the Plaintiff could not have been caused by the “minor trauma” of the motor vehicle collision was improperly based upon the expert’s review of photographs of vehicles after the collision.   The Plaintiff contended that the IME doctor was not an expert in the forces involved in vehicular crashes and that jurors should be able to make their own conclusions about damage to the vehicles as laypersons.   The Plaintiff contended that the IME doctor’s testimony should not be admissible as a result.  

Judge Zulick pointed out that the Plaintiff did not challenge the IME doctor’s qualifications as an expert orthopedic surgeon.  

The defense argued that the IME doctor properly considered the extent of damages to the vehicle as an aspect of his review of the Plaintiff’s complaints of orthopedic injuries in conjunction with taking the Plaintiff’s history, conducting a physical examination, and reviewing medical records and radiological studies.

Relying upon Pa. R.E. 703, which pertains to “Bases of Expert’s Opinion Testimony,” Judge Zulick denied the Plaintiff’s Motion and noted that the IME doctor’s use of photos of the vehicles is “one pillar of support of his opinion.”    Judge Zulick also noted that the IME doctor’s consideration of the photographs would be subject to cross-examination.   He additionally stated that the jury would be able to consider the damage to the vehicles themselves and use their own judgment as to whether or not they agreed with the IME doctor’s analysis as well.  

Overall, the court found that the Plaintiff’s objections to the IME doctor’s testimony went to the weight or value of the evidence, and not its admissibility.  Accordingly, these objections were denied.  

Judge Arthur L. Zulick
Monroe County
 

Judge Zulick also addressed the Plaintiff’s objections that the IME doctor’s opinion were not definite.   The court noted that the IME doctor did state, at the conclusion of his report, that all his opinions were rendered within a reasonable degree of medical certainty.  

In this regard, Judge Zulick also pointed to the well-settled rule that an IME doctor, as an expert for the defense “does not have to give his opinion to a reasonable degree of medical certainty on question where the Plaintiff has the burden of proof.”   See Op. at 5 [numerous citations omitted].  

Based on the above reasoning, the court denied the Plaintiff’s Motion In Limine asserted against the IME doctor.  

 

Anyone desiring a copy of this decision by Judge Zulick in the case of Rodriguez may contact me at dancummins@comcast.net.

 

I send thanks to Attorney G. Christopher Parrish of the Bethlehem, PA office of Forry Ullman for bringing this case to my attention.

Federal Middle District Judge Brann Reviews Peculiar Risk Exception in Landowner Slip and Fall Liability Case

Judge Matthew W. Brann of the Pennsylvania Middle District Court recently granted a Defendant's Motion to Dismiss in the slip and fall negligence case of Holt v. Lowe’s Home Centers, LLC, No. 4:15-CV-01728 (M.D. Pa. Feb. 10, 2016).  

In this case, Judge Brann ruled that a Defendant landowner could not be held liable for injuries sustained by an independent contractor’s employee when that employee slipped and fell through a snow covered greenhouse roof that the contractor was hired to clear.  

At the outset of his Opinion, Judge Brann outlined the stricter "plausibility" standard of review for federal court motions to dismiss enunciated by decisions in recent years by the Chief Justice Roberts-led U.S. Supreme Court. 

The court noted that the records confirmed that the contractors retained by Lowe's, one of which designed, manufactured and manufactured greenhouses of the type at issue, obviously knew of the existence of the snow, and also know of the possible structural damage to the area where the Plaintiff fell through the greenhouse roof.  

Judge Matthew W. Brann
M.D. Pa.

 

Judge Brann reaffirmed that a landowner will not be held vicariously liable for the negligent acts of an independent contractor hired to perform work on the land.  The court rejected the Plaintiff's request for the application of the Peculiar Risk Exception to this general rule of non-liability

The court found that there was no peculiar risk or special danger presented by the facts of this matter.   Judge Brann stated that a snowy roof in winter in Pennsylvania did not amount to a peculiar risk as that term is identified under the law.

Judge Brann also held that it could not be a peculiar risk in that the premises owner did not have any duty to inspect as that duty had been contractually assumed by the contractor.

Judge Brann also supported his decision to dismiss the matter by asserting that the record did not prove causation attributable to Lowe's as the possessor of land.   In this regard, the court noted that the Plaintiff’s injury was caused, in part, by the failure to use safety equipment and that that failure was under the contractor’s responsibility and not the landowners.  

Anyone wishing to review Judge Brann's notable decision in the Holt case may click HERE

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith Law Firm.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog.    

Judge Nealon Addresses Vicarious Liability Based Upon Ostensible Agency Claim In Med Mal Case

In his recent decision in the case of Oscarson v. Moses Taylor Hospital, No. 2013-CV-1523 (C.P. Lacka. Co. Feb. 3, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant hospital’s Motion for Summary Judgment on the Plaintiff’s ostensible agency theory of liability for an independent contractor physician.  

In this medical malpractice action, the Plaintiff alleged a negligent performance and interpretation of a needle biopsy at the Defendant-hospital by the Defendant-pathologist.   The Plaintiff asserted a claim of a vicarious liability on the hospital.  This claim was based upon the assertion that the independent contractor pathologist was an ostensible agent of the hospital at the time of the biopsy.

The matter came before the court on the hospital Defendants Motion for Summary Judgment.  

Judge Nealon noted that, under 40 P.S. §1303.516, a hospital may be vicariously liable for the negligence of an independent contractor physician based upon ostensible agency if the evidence shows that either (1) a reasonably prudent person in the patient’s position would be justified in believing that the care in question was being rendered by the hospital or its agent, or (2) the care at issue was advertised or otherwise represented to the patient as being rendered by the hospital or its agent. 

Reviewing the records before him, Judge Nealon noted that there was evidence that the Plaintiff was advised by his treating surgeon that he was being referred to the hospital, not any particular pathologist, for the needle biopsy.  Moreover, the Plaintiff was contacted by the hospital’s outpatient department, as opposed to the pathologist’s office, for the scheduling of the biopsy procedure at the hospital.  

The record also established that, prior to the date of the biopsy, the Plaintiff had never met or been treated by the pathologist.  The only care that the Plaintiff received from the pathologist took place at the Defendant-hospital.   Judge Nealon also noted that the pathologist never informed the Plaintiff of his independent contractor status.   The Plaintiff additionally testified during his deposition that he thought that the pathologist was indeed a hospital employee.

As such, viewing the records in a light most favorable to the Plaintiff as the non-moving party as required by the standard of review for motions for summary judgment, Judge Nealon ruled that it could not be declared, as a matter of law, that a reasonably prudent person in the position of the Plaintiff would not have been justified in believing that the needle biopsy was being performed by the hospital’s agent.  As such, the hospital’s Motion for Summary Judgment was denied.  

Anyone wishing to review this case may click this LINK.

Nice Overview of the Law of Tincher Provided in Dauphin County Products Case

In a recent decision in the case of High v. Pennsy Supply, Inc., No. 2013-CV-06181 C.V. (C.P. Dauph. Co. Feb. 18, 2016 Dowling, J.), the court granted summary judgment in favor of the Defendant in a products liability case.  

In this Opinion, Judge Andrew H. Dowling of the Dauphin County Court of Common Pleas provides an excellent synopsis and overview of the Pennsylvania Supreme Court's products liability decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).  

The Plaintiff’s products liability case alleged that the concrete at issue in the matter was defective because it had a pH in excess of 11.5, and was allegedly capable of causing burns to the skin upon prolonged exposure.

The Defendant moved for summary judgment asserting that Plaintiffs failed to prove a case that wet concrete, which normally has a pH range of 12-13, is an unreasonably dangerous and defective product.  

According to the Opinion, two (2) homeowners ordered concrete from the Defendant for use in a basement crawlspace.   After using the product, the homeowner sustained burn injuries to his hands that allegedly later required skin grafting and resulted in a permanent injury.  

The Court noted that there was no showing by the Plaintiff that the concrete delivery was somehow defective, that it contained a pH outside of the normal range, or that it contained anything unusual.  Rather, it was the Plaintiff’s claim that the concrete itself as a product was in a “defective condition” and created a danger that was unreasonable and unacceptable to the average or ordinary customer.”

In granting summary judgment in favor of the defense, the court in High applied the new standard of review for 402(A) strict liability cases announced in the Pennsylvania Supreme Court decision of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).  

According to the court in High, the Supreme Court in Tincher held that the non-delegable duty in a strict liability case is that the “a person or entity engaging in the business of selling a product has a duty to make and/or market the product-which ‘is expected to and does reach its user or consumer without substantial change in the condition in which it is sold’- free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’”  See High at p. 3 quoting Tincher, 104 A.3d at 383.  

The High court also noted that, under Tincher, “[t]o demonstrate a breach of duty in a strict liability matter, a Plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition.’”  High at p. 3-4 quoting Tincher, 104 A.3d at 384.  

The High court also noted that, under Tincher, “the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.”   High, at p. 4 quoting Tincher, 104 A.3d at 401.   The alternative test, or standard of proof, is a “composite,” i.e., a standard of proof which states the consumer expectations test and the risk-utility test in the alternative.  High at p. 4 citing Tincher, 104 A.3d at 402.  

The High court also noted that, under Tincher, the overall standard of review mandates that “the strict liability cause of action theoretically permits compensation where harm results from risk that are known or foreseeable… and also where harm results from risks annullable at the time of manufacture or sale…...” High at p. 4 quoting Tincher, 104 A.3d at 404-05.

The High court stated that, under Tincher the consumer expectations test defines a “defective condition” as a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplations.  High at p. 4 citing Tincher, 104 A.3d at 387.  

In contrast, the risk-utility test “offers a standard which, in typical common law terms, states that:  a product is in a defective condition if a ‘reasonable person’ would conclude that the probability and seriousness of harm caused by the product outweigh the burden of costs of taking precautions.”  High at p. 4 citing Tincher, 104 A.3d at 389.   The court went on to review the at least seven (7) factors to be considered under the risk-utility test as enunciated in Tincher.   High at p. 4-5 citing Tincher, 104 A.3d at 389-390.  

Turning back to the facts before it, the court in High stated that the Plaintiffs were required to prove a defective condition by showing that a danger was unreasonable and unacceptable to the average or ordinary consumer, or that a reasonable person would conclude that the probability and seriousness of the harm caused by the product outweighed the burden or costs of taking precautions.  High at p. 5.  

After noting that no Pennsylvania court decision was found considering whether concrete is unreasonably dangerous by virtue of its capacity for causing burns while in a liquid state, and after reviewing the law and cases of other jurisdictions, the High court granted summary judgment in favor of the Defendants finding that the Plaintiffs had failed to produce evidence that wet concrete is in a defective condition. 

The court also ruled  that the Plaintiffs failed to show that the danger with wet concrete is unreasonable and unacceptable to the average or ordinary consumer.   To the contrary, the High court found that the dangers associated with wet concrete are well known and are acceptable.  

The court additionally found that the Plaintiffs failed to produce evidence that the seriousness of harm caused by concrete outweighed the burden or costs of taking precautions.  The court stated that concrete obviously is useful and provides utility to the public as whole and, when used with the proper precautions and equipment, it would seem that there would be a very low probability of serious injury.   The court also noted that no evidence was presented by the Plaintiff of the availability of a substitute product that would meet the same needs and would not be as allegedly unsafe.  

The court also noted that there did not appear to be a way to eliminate any unsafe character of the wet cement product without impairing its usefulness or making it too expensive to maintain its utility.   Moreover, the court stated that proper attire and basic safety precautions could have prevented the Plaintiffs’ injury.  

Consequently, the court found that the Plaintiffs had failed to prove that the seriousness of the harm caused by wet concrete outweighs the burden of costs of taking precautions.  As such, the court entered summary judgment in favor of the Defendant.  

 

A copy of this decision can be viewed by clicking this LINK

 

I send thanks to Attorney Kenneth T. Newman, Esquire of the Pittsburgh, PA office of Thomas, Thomas & Hafer for bringing this case to my attention. 

Judge Nealon Explains Difference Between Preliminary Objections for Improper Venue and Petition for Transfer Under Doctrine of Forum Non Conveniens Where Venue is Proper

In the case of Baltzley v. Bronson, No. 14-CV-5500 (C.P. Lacka. Co. Feb. 4, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant's Preliminary Objections to a Complaint pursuant to Pa. R.C.P. 1028(a)(1) and 1006(e) asserting improper venue in Lackawanna County in a motor vehicle accident case.   Judge Nealon’s Opinion emphasizes the difference between asserting improper venue, which can be raised only by Preliminary Objections, and inconvenient forum challenges, which acknowledged proper venue and can only be raised by petition.   

According to the Opinion, the subject motor vehicle accident occurred in Montrose, Susquehanna County, Pennsylvania.  

The Plaintiff commenced the action by filing a Writ of Summons and serving that initial process upon the Defendant through the Sheriff’s Department of Susquehanna County at the Defendant’s Susquehanna County residence.  

Thereafter, the Plaintiff filed a Complaint in which he identified the Defendant’s residence being in Susquehanna County.  

The Defendant filed timely Preliminary Objections to the Complaint pursuant to 1028(a)(1), asserting that venue was proper only in Susquehanna County since the Defendant resided in Susquehanna County and was served with original process in that county and given that the accident occurred in that county.   In his supporting Brief, the Defendant noted that Rule 1006 states that venue was proper either in the county where a Defendant may be served or in the county where the cause of action arose.  The Defendant also asserted that because no Defendant resided in Lackawanna County and given that the accident did not take place in Lackawanna County, “this action must be transferred to Susquehanna County.”  

The Plaintiff responded to the Preliminary Objections by admitting that the subject accident occurred in Susquehanna County and that the Defendant was served with original process in that county.  However, the Plaintiff contended that the Defendant’s Preliminary Objections should be denied since the Defendant “has failed to show that venue in Lackawanna County would be inconvenient” under Pa. R.C.P. 1006(d)(1).   The Plaintiff further argued that the Defendant has not provided any evidence to the court that Lackawanna County was an inconvenient forum for the parties or witnesses or that the travel to and expenses of litigating in Lackawanna County would be overly burdensome for any party.   For these reasons, the Plaintiff requested that Defendant’s Preliminary Objections be overruled.  

Judge Terrence R. Nealon
Lackawanna County
 

In his Opinion, Judge Nealon noted that venue for civil actions brought against individuals is controlled by Pa. R.C.P. 1006.   Judge Nealon also explained that, based upon Pennsylvania Supreme Court precedent, “Rule 1006 not only articulates where the plaintiff may bring the action, but also provides three (3) distinct bases upon which a defendant may challenge the plaintiff’s chosen forum:  improper venue by Preliminary Objections, forum non conveniens, and inability to hold a fair and impartial trial.”   See Baltzley at p. 3 [citation omitted].  

Judge Nealon also stated that, pursuant to Pa. R.C.P. 1006(e), improper venue must be raised by Preliminary Objection and, if not so raised, shall be considered to be waived.  

Judge Nealon went on to note that, where venue is proper in a given county, a defendant may, in the alternative, seek a change of venue either on a forum non conveniens grounds or due to the inability to obtain a fair and impartial trial in that particular county.   In such case, under Rule 1006(d)(1), a party may file a petition with the court to transfer the action to another county for the convenience of parties and witnesses.  

The court also explained that a defendant may otherwise request a transfer of venue from a county where the venue is properly laid by establishing to the court that the defendant is unable to receive a fair and impartial jury trial in that forum.   Such a petition can be filed under Rule 1006(d)(2).  

The court emphasized that, in this matter, the Defendant filed Preliminary Objections challenging improper venue, and not a petition asserting forum non conveniens or an inability obtain a fair and impartial trial in Lackawanna County.   As such, the judge noted that issues pertaining to the convenience or expenses to the parties of litigating in Lackawanna County were not relevant.  

The court ruled that the Plaintiff’s admissions in the pleadings confirmed that the Defendant was served in Susquehanna County and that the accident occurred in Susquehanna County.   There was no contention by the Plaintiff that the Defendant could have been served in Lackawanna County or that the accident occurred in Lackawanna County.   Since there is no basis in fact or law for proper venue in Lackawanna County under Rule 1006(a)(1), the court sustained the Defendant’s Preliminary Objection asserting improper venue in Lackawanna County.

Judge Nealon went on to note that under Pa. R.C.P. 1006(e) if a Preliminary Objections to venue is sustained and there is another county of proper venue within Pennsylvania, the action should be transferred to that other county.   Accordingly, Judge Nealon transferred the case to the Court of Common Pleas of Susquehanna County and required, as mandated by Rule 1006(e) that “[t]he costs and fees for transfer and removal of the record shall be paid by the plaintiff.”  

Anyone wishing to review this decision by Judge Nealon in the Baltzley case may click this LINK.

Judge Gray of Lycoming County Addresses Proper Allegations for Dog Bite Complaint

In his recent decision in the dog bite case of Wagner v. Teneyck, No. 15-01783 (C.P. Lycoming Co. Jan. 5, 2016 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas denied in part and sustained in part a Defendant’s various demurrers to a Plaintiff’s Complaint in a dog bite personal injury matter.  

The court found that Complaint contained sufficient allegations for a cause of action for negligence per se for harboring a dangerous dog and failing to keep a dangerous dog under control in violation of Pennsylvania’s Dangerous Dog Law as well as the Borough of Jersey Shore Codes pertaining to dog leash laws.  

The court rejected the Defendant’s objections to the Complaint for failing to specify the provisions of the Pennsylvania Dog Law and/or the Borough of Jersey Shore Codes pertaining to dog leash laws in the content of the Complaint.  

Judge Richard A. Gray
Lycoming Co.
 

In this regard, Judge Gray noted that Pennsylvania is a fact-pleading jurisdiction  under which the courts are presumed to know the law such that Plaintiffs need only plead facts supporting a cause of action and that the courts will take judicial notice of any statutes involved or implicated by such allegations.   Here, the court found that the Complaint sufficiently pled that the Defendants’ harbored a dangerous dog and failed to either keep the dog within a dwelling or an enclosure or to keep the dog muzzled.  As such, the Defendants’ objections based upon a lack of form or improper form in the Complaint was overruled.  

Judge Gray did sustain the Defendants’ objection asserting that the Complaint failed to specify the alleged special damages at issue.   Judge Gray noted that Pa. R.C.P. 1019(f) required that items of special damages be specifically stated in a Complaint.  

Here, the court noted that the Complaint failed to specify the amount of past medical bills to the extent known as well as the future medical bills anticipated.  Accordingly, the Complaint was found to lack sufficient specificity under Rule 1019(f).   The Defendants’ Preliminary Objection based upon lack of specificity was therefore sustained.  

Judge Gray's Opinion in Wagner can be viewed  HERE.

Another Luzerne County Post-Koken Decision in Favor of Consolidation During Discovery (But Leaving the Door Ajar for Bifurcation Later at Trial)

In a recent February 11, 2016 Order without Opinion in the case of Rhoades v. Johnson and Erie Insurance Company, No. 9659 - CV - 2015 (C.P. Luz. Co. Feb. 11, 2016 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas denied the Defendant UIM carrier's Preliminary Objections/Motion to Sever filed in response to a Post-Koken Complaint.

This matter arose out of a motor vehicle accident during which the Defendant tortfeasor driver was allegedly driving under the influence.

The Defendant UIM carrier filed Preliminary Objections asserting a misjoinder of negligence claims against the alleged tortfeasor and UIM breach of contract claims under a single Complaint.  The carrier combined the Preliminary Objections with a Motion to Sever pursuant to Pa.R.C.P. 213 asserting, in part, that it would be prejudicial for the UIM carrier to have to proceed through the same jury trial with the inflammatory facts associated with a Co-Defendant accused of a DUI and facing punitive damages.

Judge William H. Amesbury
Luzerne County
 

Following the trend in Luzerne County, Judge Amesbury denied the Preliminary Objections of the UIM carrier Defendant but noted in his Order that "Defendant Erie Insurance Company retains the right to file a Motion to Sever with the Trial Judge."

Anyone desiring a copy of this Order only may contact me at dancummins@comcast.net.