In his recent decision in the case of Delvecchio v. St. Joseph’s Center, No. 2003-Civil-2950 (C.P. Lacka. 2011 Minora, J. ), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas reviewed the law pertaining to negligent supervision claims in a case in which the Plaintiff accused the employer, St. Joseph’s Center, of negligently supervising its employee with respect to that employee’s care of a mentally disabled patient. According to the opinion, this matter stems from allegations of sexual assault against the patient by an employee of the Defendant, St. Joseph’s Center.
The case came before the court by way of the Defendant’s summary judgment on various issues, including an argument that the actions of the employee were outside the scope and course of the employee’s employment and that there was no factual basis to support a claim of negligent supervision.
After setting out the applicable law in great detail on the various claims presented, Judge Minora ultimately ruled that the Plaintiff would be allowed to proceed to the jury on the claim of vicarious liability against the employer given the factual issues presented.
The court also denied the Defendant employer’s Motion for Summary Judgment on the issue of negligent supervision over the employee.
The court also allowed the Plaintiff’s claim for punitive damages to proceed to a jury as well.
Judge Minora did grant the Defendant’s Motion for Summary Judgment on the issue of negligent hiring of the employee as there was no evidence that the employer knew or should have known, at the time of hiring, that the employee would harm a third party. The record before the court revealed that the employer had completed a criminal background check and obtained a child abuse clearance on the employee.
The decision by Judge Minora in the case of Delvecchio v. St. Joseph’s Center serves as a nice primer on the liability of employers for the acts of their employees causing injury and damages to third persons. Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.
Thursday, January 5, 2012
Auto Law Medical Expenses Case of Note Out of Middle District Federal Court
Judge Connor in the Middle District of Pennsylvania recently issued an detailed Order regarding a Motion in Limine on a medical expenses issue in Bieber v. Nace, 2011 WL 6180719 (M.D.Pa. Dec. 13, 2011).
This mattter arose out of a motor vehicle accident. The Defendants filed affirmative defenses in their Federal Court response to the Complaint in which they asserted that the Plaintiffs' recovery was reduced or barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).
The Plaintiffs filed a pre-trial motion in limine arguing that these defenses should be stricken since the medical bills were paid by a self-funded ERISA plan which was making a claim for reimbursement. The Plaintiffs produced evidence to support their contentions in this regard.
Judge Connor reviewed the pertinent statutes and case law and finds that the MVFRL cannot serve to reduce or bar the plaintiff's recovery of medical expenses paid for by ERISA. As such, the court granted the Motion in Limine.
This mattter arose out of a motor vehicle accident. The Defendants filed affirmative defenses in their Federal Court response to the Complaint in which they asserted that the Plaintiffs' recovery was reduced or barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).
The Plaintiffs filed a pre-trial motion in limine arguing that these defenses should be stricken since the medical bills were paid by a self-funded ERISA plan which was making a claim for reimbursement. The Plaintiffs produced evidence to support their contentions in this regard.
Judge Connor reviewed the pertinent statutes and case law and finds that the MVFRL cannot serve to reduce or bar the plaintiff's recovery of medical expenses paid for by ERISA. As such, the court granted the Motion in Limine.
Tuesday, January 3, 2012
Plaintiff Prevails on Philadelphia County Facebook Discovery Issue
Philadelphia County Court of Common Pleas Judge William J. Manfredi has denied a defendant's general discovery request for access to a plaintiff's Facebook pages in the case of Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila Dec. 13, 2011 Manfredi, J.).
The Martin decision is a one line Order. According to the filings in the matter, the plaintiff argued the insurer had not identified any public information on the plaintiff's Facebook site, relevant to the case or not, that would trigger a right to further discovery.
As noted by Ben Present in his recent article in the Legal Intelligencer/Law Weekly, "the defense-favored trend driving the early precedent in Pennsylvania social media litigation doesn't appear to have lost any steam following Martin v. Allstate Fire and Casualty Insurance Co . Rather, while the earlier defense opinions hinged on testimony that conflicted with publicly available Facebook information in allowing discovery, the recent plaintiffs' decisions indicate the party moving for discovery must come to the table with at least that."
Anyone desiring a copy of the Defendant's Motion to Compel, the Plaintiff's Response, and Judge Manfredi's Order in Martin v. Allstate may contact me at dancummins@comcast.net.
Source: "Plaintiffs Win Round on Discovery of Facebook Pages," by Ben Present in the Jan. 3, 2012 Pennsylvania Law Weekly.
The Martin decision is a one line Order. According to the filings in the matter, the plaintiff argued the insurer had not identified any public information on the plaintiff's Facebook site, relevant to the case or not, that would trigger a right to further discovery.
As noted by Ben Present in his recent article in the Legal Intelligencer/Law Weekly, "the defense-favored trend driving the early precedent in Pennsylvania social media litigation doesn't appear to have lost any steam following Martin v. Allstate Fire and Casualty Insurance Co . Rather, while the earlier defense opinions hinged on testimony that conflicted with publicly available Facebook information in allowing discovery, the recent plaintiffs' decisions indicate the party moving for discovery must come to the table with at least that."
Anyone desiring a copy of the Defendant's Motion to Compel, the Plaintiff's Response, and Judge Manfredi's Order in Martin v. Allstate may contact me at dancummins@comcast.net.
Source: "Plaintiffs Win Round on Discovery of Facebook Pages," by Ben Present in the Jan. 3, 2012 Pennsylvania Law Weekly.
Judge Nealon of Lackawanna County Addresses Alleged Release in Medical Malpractice Case
Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a declaratory judgment action, filed in relationship to a medical malpractice suit, in which certain defendants and their primary liability insurance carrier sought a judicial declaration that the factual stipulations contained in bankruptcy court motions filed by the tort plaintiff effectively released the emergency room physician from malpractice liability, extinguish the alleged vicarious liability of the defendant hospital, and also reduced the liability of the other alleged joint tortfeasor defendants in the case of Moses Taylor Hospital v. Carnevale, No. 11-Civil-3999 (C.P. Lacka. Dec. 8, 2011 Nealon, J.).
By way of background, a defendant physician in this medical malpractice suit filed for bankruptcy thereby triggering an automatic stay. In an effort to secure relief from the automatic stay to allow the tort case to proceed, the plaintiff filed a motion with the bankruptcy court seeking relief from the automatic stay in which motion the plaintiff noted an agreement not to execute any malpractice judgment against the debtor physician’s personal assets and, instead, to only pursue the physician’s liability insurance coverage (primary and MCare).
In response, the physician’s hospital-employer filed a declaratory judgment action in the Lackawanna County Court of Common Pleas seeking a declaration that the plaintiff's agreement not to execute against the doctor’s personal assets constituted a release of the physician, extinguished the vicarious liability claim against the hospital-employer based upon the conduct of that physician, and also resulted in a pro rata or a pro tanto reduction of the other defendant physicians’ tort liability.
According to Judge Nealon’s opinion, the bankruptcy court denied the Motion for Relief from the automatic stay until the state court decided this declaratory judgment action. The case came before Judge Nealon by way of a demurrer filed by the plaintiff to the declaratory judgment Complaint.
The underlying tort plaintiff sought to dismiss the declaratory judgment action on the grounds that his bankruptcy motion specifically stated that the motion should not be considered to be a release of the bankrupt tortfeasor or any other malpractice Defendant and, to the contrary, the motion reflected a clear intent to pursue, rather than abandon, his malpractice claim against the various defendants.
After reviewing the underlying matters and the applicable law, Judge Nealon ruled that the unambiguous language of the claimant’s agreement not to execute against the debtor doctor’s personal assets could not possibly be construed as a release of that tortfeasor or any other malpractice defendant or result in a reduction of their joint tortfeasor exposure.
Judge Nealon sustained the tort claimant’s demurrer after finding that it was “clear and free from doubt” under the governing law that the parties pursuing the declaratory judgment could not obtain their requested relief based upon the facts set forth in the bankruptcy motion.
In so ruling, the court provided a detailed review of the pertinent law relevant to the effects of alleged releases.
Anyone desiring a copy of this decision in the case of Moses Taylor v. Carnevale by Judge Nealon may contact me at dancummins@comcast.net.
By way of background, a defendant physician in this medical malpractice suit filed for bankruptcy thereby triggering an automatic stay. In an effort to secure relief from the automatic stay to allow the tort case to proceed, the plaintiff filed a motion with the bankruptcy court seeking relief from the automatic stay in which motion the plaintiff noted an agreement not to execute any malpractice judgment against the debtor physician’s personal assets and, instead, to only pursue the physician’s liability insurance coverage (primary and MCare).
In response, the physician’s hospital-employer filed a declaratory judgment action in the Lackawanna County Court of Common Pleas seeking a declaration that the plaintiff's agreement not to execute against the doctor’s personal assets constituted a release of the physician, extinguished the vicarious liability claim against the hospital-employer based upon the conduct of that physician, and also resulted in a pro rata or a pro tanto reduction of the other defendant physicians’ tort liability.
According to Judge Nealon’s opinion, the bankruptcy court denied the Motion for Relief from the automatic stay until the state court decided this declaratory judgment action. The case came before Judge Nealon by way of a demurrer filed by the plaintiff to the declaratory judgment Complaint.
The underlying tort plaintiff sought to dismiss the declaratory judgment action on the grounds that his bankruptcy motion specifically stated that the motion should not be considered to be a release of the bankrupt tortfeasor or any other malpractice Defendant and, to the contrary, the motion reflected a clear intent to pursue, rather than abandon, his malpractice claim against the various defendants.
After reviewing the underlying matters and the applicable law, Judge Nealon ruled that the unambiguous language of the claimant’s agreement not to execute against the debtor doctor’s personal assets could not possibly be construed as a release of that tortfeasor or any other malpractice defendant or result in a reduction of their joint tortfeasor exposure.
Judge Nealon sustained the tort claimant’s demurrer after finding that it was “clear and free from doubt” under the governing law that the parties pursuing the declaratory judgment could not obtain their requested relief based upon the facts set forth in the bankruptcy motion.
In so ruling, the court provided a detailed review of the pertinent law relevant to the effects of alleged releases.
Anyone desiring a copy of this decision in the case of Moses Taylor v. Carnevale by Judge Nealon may contact me at dancummins@comcast.net.
PLEASE SAVE THE DATE: MAY 3, 2012 - TORT TALK EXPO CLE SEMINAR
As you break in those new 2012 calendars, I am hoping you might be willing to consider marking May 3, 2012 for the 2012 TORT TALK EXPO CLE Seminar set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania from around noon to 4:30 pm, followed by a Cocktail Reception.
I will present an hour long Civil Litigation/Auto Law Update.
The second hour will be presented by Dr. Michael Brooks who will talk on "Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries." Dr. Brooks will go through a variety of commonly seen injuries in auto accident cases along with tips on interpreting x-ray and MRI reports.
The final hour will be a "View from the Bench" hour. So far, the judicial panelists include Supreme Court Justice Michael Eakin and Judge Correale Stevens, the President Judge of the Superior Court.
More details to follow.....
I will present an hour long Civil Litigation/Auto Law Update.
The second hour will be presented by Dr. Michael Brooks who will talk on "Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries." Dr. Brooks will go through a variety of commonly seen injuries in auto accident cases along with tips on interpreting x-ray and MRI reports.
The final hour will be a "View from the Bench" hour. So far, the judicial panelists include Supreme Court Justice Michael Eakin and Judge Correale Stevens, the President Judge of the Superior Court.
More details to follow.....
Sunday, January 1, 2012
Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress
The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).
According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”). The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).
The above rules constitute three distinct variations of NIED claims. Now, with Toney v. Chester County Hospital, comes a fourth variation.
In Toney, the Court granted an appeal to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.
The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal. Unfortunately, the Plaintiff's child was later born with several profound abnormalities. The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.
The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted. The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint; the Superior Court reversed the trial court).
After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."
More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."
In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."
The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."
Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice. As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.
That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.
The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.
To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.
To read Justice Todd's concurring Opinion in support of affirmance, click here.
To read Chief Justice Castille's Opinion in support of reversal, click here.
To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.
I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.
According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”). The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).
The above rules constitute three distinct variations of NIED claims. Now, with Toney v. Chester County Hospital, comes a fourth variation.
In Toney, the Court granted an appeal to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.
The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal. Unfortunately, the Plaintiff's child was later born with several profound abnormalities. The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.
The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted. The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint; the Superior Court reversed the trial court).
After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."
More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."
In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."
The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."
Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice. As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.
That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.
The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.
To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.
To read Justice Todd's concurring Opinion in support of affirmance, click here.
To read Chief Justice Castille's Opinion in support of reversal, click here.
To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.
I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.
Six New Luzerne County Judges Sworn In
Here is a link to a December 30, 2011 article by Sheena Delazio of the Times Leader reporting on the swearing in of the six new Judges to the Court of Common Pleas in Luzerne County:
http://www.timesleader.com/news/A_new_court__a_new_spirit_12-31-2011.html?searchterm=gelb
http://www.timesleader.com/news/A_new_court__a_new_spirit_12-31-2011.html?searchterm=gelb
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