Wednesday, May 31, 2017
Judge Nealon of Lackawanna County Addresses Issues Surrounding Substitution of Estate for Deceased Defendant in Civil Litigation Matter
In his recent decision in the case of Bandru v. Fawzen, No. 2013-CV-3959 (April 21, 2017 Nealon, J.),
Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied
a Defendant’s Motion to Dismiss a Plaintiff’s Complaint for failure to
substitute the Defendant’s estate as the named Defendant within one (1) year of
the filing of the Notice of the Defendant’s Death.
The issues in this case arose out of a motor vehicle accident litigation. After the Defendant in this action died, defense counsel filed a Notice of Death pursuant to Pa. R.C.P. 2355. Defense counsel later filed a motion seeking to dismiss the case for lack of subject matter jurisdiction on the grounds that the personal representative of the Defendant’s estate was not substituted as the named Defendant within a certain period of time.
In response, Plaintiff filed a Motion to Substitute the Executrix of the Defendant’s Estate as the Named Defendant in accordance with Pa. R.C.P. 2352(b).
Judge Nealon ruled that, since the Executrix was appointed as a personal representative of the Defendant’s Estate before defense counsel filed a Notice of Death under Rule 2355, and since the Executrix had consented under Pa. R.C.P. 2352(a) to be substituted as the named Defendant, the court had subject matter jurisdiction over the case.
Accordingly, the Plaintiff’s Motion to Substitute the Executrix of the Defendant’s Estate as the named Defendant was granted, and the Defendant’s Motion to Dismiss for lack of jurisdiction was denied.
The issues in this case arose out of a motor vehicle accident litigation. After the Defendant in this action died, defense counsel filed a Notice of Death pursuant to Pa. R.C.P. 2355. Defense counsel later filed a motion seeking to dismiss the case for lack of subject matter jurisdiction on the grounds that the personal representative of the Defendant’s estate was not substituted as the named Defendant within a certain period of time.
In response, Plaintiff filed a Motion to Substitute the Executrix of the Defendant’s Estate as the Named Defendant in accordance with Pa. R.C.P. 2352(b).
Judge Nealon ruled that, since the Executrix was appointed as a personal representative of the Defendant’s Estate before defense counsel filed a Notice of Death under Rule 2355, and since the Executrix had consented under Pa. R.C.P. 2352(a) to be substituted as the named Defendant, the court had subject matter jurisdiction over the case.
Accordingly, the Plaintiff’s Motion to Substitute the Executrix of the Defendant’s Estate as the named Defendant was granted, and the Defendant’s Motion to Dismiss for lack of jurisdiction was denied.
Anyone wishing to review Judge Nealon's Opinion in Bandru may click this LINK.
Friday, May 26, 2017
Thursday, May 25, 2017
Judge Minora of Lackawanna County Addresses Medical Malpractice Discovery Issue
In his recent decision in the case of Snyder v. DeCesare, et.al., No. 2015-CV-1939 (C.P. Lacka. Co. Jan.
20, 2017 Minora, S. J.), Senior Judge Carmen D. Minora of the Lackawanna County
Court of Common Pleas addressed a Plaintiff’s Motion to Compel the production
of the Defendant nurse’s personnel file in a medical malpractice matter.
The Defendants objected to this request as not relevant, overly broad, and not reasonably calculated to lead to admissible evidence.
Judge Minora relied upon a two-part test enunciated in the case of Shedlock v. UPMC Presbyterian, Inc., 2014 W.L. 3155117, 69 D.&C. 4th 1 (C.P. Allegh. Co. Wettick, J.). After reviewing that test, the court ruled in favor of the Plaintiff finding that the Plaintiff made a prima facie showing of a relationship between the level of care alleged and the allegations pled in the Complaint, as well as a plausible argument that the information sought in discovery may assist the Plaintiffs in establishing the claims presented.
Anyone wishing to review Judge Minora's decision in this case may click this
LINK.
The Defendants objected to this request as not relevant, overly broad, and not reasonably calculated to lead to admissible evidence.
Judge Minora relied upon a two-part test enunciated in the case of Shedlock v. UPMC Presbyterian, Inc., 2014 W.L. 3155117, 69 D.&C. 4th 1 (C.P. Allegh. Co. Wettick, J.). After reviewing that test, the court ruled in favor of the Plaintiff finding that the Plaintiff made a prima facie showing of a relationship between the level of care alleged and the allegations pled in the Complaint, as well as a plausible argument that the information sought in discovery may assist the Plaintiffs in establishing the claims presented.
Anyone wishing to review Judge Minora's decision in this case may click this
LINK.
Certificate of Merit Required to Support a Direct Corporate Negligence Claim Against a Licensed Medical Corporation
In his recent decision in the case of Goodfellow v. Camp Netimus Inc., 2017
U.S. Dist. Lexis 68140 (M.D. Pa. May 4, 2017, Mannion, J.), the court granted
in part and denied in part a Motion to Dismiss in a case involving a claim of
direct corporate negligence.
A copy of this decision can be viewed online HERE.
I send thanks to Attorney James Beck of the Philadelphia
office of the Reed Smith law firm for bringing this case to my attention.
Wednesday, May 24, 2017
Evidence of Prior Accidents and Injuries Precluded as Irrelevant to Claimed Injuries
In his recent decision in the case of Piczon v. Moody, No. 2012 - CV - 3634(C.P. Lacka. Co. April 6, 2017
Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common
Pleas addressed a Motion In Limine filed by a Plaintiff seeking to preclude the
defense medical witness from referencing the Plaintiff’s prior complaints and
treatment involving her low back, hip, leg, knee, foot, and ankle in an
automobile accident case where the Plaintiff was seeking to recover damages for
alleged injuries to her neck and head.
The court granted the Motion and found that, to be admissible,
evidence of previous medical complaints voiced by a Plaintiff must be connected
to the Complaints at issue in the pending case. Where such evidence is not connected to the
Complaints at issue, the court will exclude the same as irrelevant and
prejudicial.
Here, the court found that the Plaintiff did not seek to
recover any damages in the subject litigation for injuries to her low back,
hip, knee, leg, foot or ankle. The
court therefore found that the Plaintiff’s prior complaints and treatment
relating to those body parts were irrelevant and unduly prejudicial. As such, Plaintiff’s Motion In Limine to
preclude that evidence was granted.
Anyone wishing to review a copy of this decision may click this LINK.
For another recent decision from Judge Nealon along the same lines, see the case of Familetti v. Thyssen Krupp Elevator Corp., No. 2013-CV-1486 (C.P. Lacka. Co. April 27, 2017 Nealon, J.) by clicking HERE.
According to the Opinion, the Plaintiff alleged neck and hand injuries as a result of an elevator accident in 2011.
During discovery, it was disclosed that the Plaintiff had a prior motor vehicle accident in 1991 or 1992 as a result of which she sustained a whiplash injury to her neck that resolved after six (6) weeks of treatment. The Plaintiff was also involved in another prior accident in 2001 or 2002 and sustained injuries to her low back and knee for which she received chiropractic treatment. The Plaintiff additionally had a prior fall down event in 2009 and was treated for left arm pain with one (1) emergency room visit.
The court noted that, in the defense IME report, the IME doctor noted that the Plaintiff’s past medical history was generally benign. It was additionally noted that the defense medical expert did not suggest that the Plaintiff’s current complaints were in any way related to her prior traumatic events.
The court reviewed the rule of law that, to be admissible, evidence of previous medical complaints must be connected to the complaints at issue and, if they are not, the trial court should exclude the evidence as irrelevant and prejudicial. Based upon this law, the court granted the Plaintiff’s Motion In Limine.
For another recent decision from Judge Nealon along the same lines, see the case of Familetti v. Thyssen Krupp Elevator Corp., No. 2013-CV-1486 (C.P. Lacka. Co. April 27, 2017 Nealon, J.) by clicking HERE.
In Familetti v. Thyssen Krupp Elevator, Judge Nealon of the Lackawanna
County Court of Common Pleas addressed a Motion In Limine filed by a Plaintiff
seeking to preclude any reference to her prior accidents and associated
treatment under an argument that such evidence was irrelevant, confusing,
misleading, and prejudicial as there was no evidence presented to prove that
the prior accidents and injuries caused or contributed to any of the
Plaintiff’s current complaints at issue in this trial.
According to the Opinion, the Plaintiff alleged neck and hand injuries as a result of an elevator accident in 2011.
During discovery, it was disclosed that the Plaintiff had a prior motor vehicle accident in 1991 or 1992 as a result of which she sustained a whiplash injury to her neck that resolved after six (6) weeks of treatment. The Plaintiff was also involved in another prior accident in 2001 or 2002 and sustained injuries to her low back and knee for which she received chiropractic treatment. The Plaintiff additionally had a prior fall down event in 2009 and was treated for left arm pain with one (1) emergency room visit.
The court noted that, in the defense IME report, the IME doctor noted that the Plaintiff’s past medical history was generally benign. It was additionally noted that the defense medical expert did not suggest that the Plaintiff’s current complaints were in any way related to her prior traumatic events.
The court reviewed the rule of law that, to be admissible, evidence of previous medical complaints must be connected to the complaints at issue and, if they are not, the trial court should exclude the evidence as irrelevant and prejudicial. Based upon this law, the court granted the Plaintiff’s Motion In Limine.
Tort Talk Post-Koken Scorecard Updated With Recently Discovered Additional Decisions
Cooper v. MetLife Auto
& Home, No. 13-CV-687 (W.D. Pa. Aug. 6, 2013 Conti, J.) (Court denied Defendant’s
Motion to Bifurcate the Plaintiff’s bad faith claim from the UIM breach of
contract claim after finding that the potential prejudice presented by the
situation does not outweigh the interests of judicial economy). Click HERE to view this decision online.
Consugar v. Nationwide
Ins. Co., No. 3:10-cv-2084, 2011 WL 2360208 (M.D. Pa. 2011 Munley, J.)
(Court denied Defendant’s Motion to Bifurcate because Plaintiff’s bad faith and
UIM claims were based on the same facts and evidence). Westlaw citation provided.
Yellowbird Bus Co. v.
Lexington Ins. Co., Civ. No. 09-5835, 2010 WL 2766987 (E.D. Pa. July 12,
2010) (Court denied Motion to Bifurcate because discovery with respect to the
Plaintiffs’ bad faith and UIM claims would substantially overlap). Westlaw citation provided.
Steele v. Erie Insurance Exchange, No. 4005-2016 (C.P. Westmoreland Co. Dec. 9, 2016)(Court grants Motion to Sever and Stay Bad Faith Claim in Post-Koken matter; Court also orders that the defendant carrier's Motion for a Protective Order was granted such that all bad faith discovery was stayed until the resolution of the UIM claim). Click HERE to view this decision online.
Butts v. Erie Ins., No. 10036-2016 (C.P. Beaver Sept. 8, 2016 Kunselman, J.)(When the defendant moved to sever the UIM and bad faith cases and to stay all bad faith discovery, the plaintiff agreed to voluntarily stay bad faith discovery but objected to the severance request arguing that bifurcation was the proper procedural option to avoid alleged prejudice. The trial court held that, going forward, bifurcation would be the preferred procedure for handling UIM and bad faith cases in Beaver County.). Click HERE to view this decision online.
Ainsley v. Erie Ins. Exch., No. 1876 of 2014 (C.P. Westmoreland June 2, 2015 Regoli, J.)(Court granted UIM carrier's motion to sever and stay bad faith claim for purposes of discovery and trial. Court specified that bad faith claim was severed and stayed pending resolution of UIM claim).
These decisions have been added to the updated Tort Talk Post-Koken Scorecard, which can always be freely accessed by going to www.TortTalk.com and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on the date thereunder. In the meantime, here is a quick LINK to the Scorecard.
Steele v. Erie Insurance Exchange, No. 4005-2016 (C.P. Westmoreland Co. Dec. 9, 2016)(Court grants Motion to Sever and Stay Bad Faith Claim in Post-Koken matter; Court also orders that the defendant carrier's Motion for a Protective Order was granted such that all bad faith discovery was stayed until the resolution of the UIM claim). Click HERE to view this decision online.
Butts v. Erie Ins., No. 10036-2016 (C.P. Beaver Sept. 8, 2016 Kunselman, J.)(When the defendant moved to sever the UIM and bad faith cases and to stay all bad faith discovery, the plaintiff agreed to voluntarily stay bad faith discovery but objected to the severance request arguing that bifurcation was the proper procedural option to avoid alleged prejudice. The trial court held that, going forward, bifurcation would be the preferred procedure for handling UIM and bad faith cases in Beaver County.). Click HERE to view this decision online.
Ainsley v. Erie Ins. Exch., No. 1876 of 2014 (C.P. Westmoreland June 2, 2015 Regoli, J.)(Court granted UIM carrier's motion to sever and stay bad faith claim for purposes of discovery and trial. Court specified that bad faith claim was severed and stayed pending resolution of UIM claim).
These decisions have been added to the updated Tort Talk Post-Koken Scorecard, which can always be freely accessed by going to www.TortTalk.com and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on the date thereunder. In the meantime, here is a quick LINK to the Scorecard.
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