Court Denies Summary Judgment Motion Based on Mudano Rule (Pertaining to Conflicting Expert Opinions Offered by Plaintiff)

In the case of Kafaoglu v. Thomas, No. 14-CV-1842 (C.P. Lacka. Co. Dec. 21, 2018 Nealon, J.), the court applied the Mudano Rule in a case where the Defendant filed a Motion for Partial Summary Judgment asserting that conflicting opinions by medical experts for the Plaintiff prevented the Plaintiff from proceeding to the jury on certain portions of his claims.  

This matter arose out of a motor vehicle accident in which the Plaintiff alleged, in part, a cervical spine injury requiring a surgical repair.  

Evidence gathered during the course of discovery confirmed that the Plaintiff had a prior cervical spine fusion surgery.   The evidence also revealed that the Plaintiff did not treat over the first eleven (11) days following the subject motor vehicle accident.  As such, the defense contended that the alleged causation of the Plaintiff's post-accident cervical spine complaints were in question.

During the course of his treatment after the subject accident, the Plaintiff eventually underwent a cervical spine surgery for an alleged disc injury allegedly arising out of the motor vehicle accident.

The Plaintiff initially produced expert reports from the Plaintiff’s treating neurosurgeon who performed the surgery.  That neurosurgeoin opined that he was “unable to say with 100% certainty that this car accident led to [the Plaintiff’s] C3-4 disc herniation.”   The neurosurgeon advised that he did not have any pre-accident imaging studies to compare with the post-accident studies.   

In his reports, the neurosurgeon also stated that his findings that he personally observed during the course of his surgery on the Plaintiff’s cervical spine suggested that degenerative disc disease was at issue, rather than any acute process.  

During the course of discovery, the Plaintiff also secured the Plaintiff’s IME report from a physiatrist in which that physiatrist offered his conclusions that the subject motor vehicle accident aggravated the Plaintiff’s pre-existing cervical stenosis and allegedly necessitated the post-accident cervical spine surgery.  

The defense filed a Motion for Partial Summary Judgement with respect to the Plaintiff’s claims related to his cervical disc injury and cited the Mudano rule for the proposition that the opinions of the Plaintiff’s medical experts were irreconcilably inconsistent and, therefore, “legally incompetent."

The defense requested a summary judgment on the particular issue of the Plaintiff's alleged disc injury and surgery not being causally related to the accident by competent expert medical evidence.  The argument of the defense was that, if the Plaintiff's own experts could not agree on a conclusion of whether the disc injury and surgery were caused by the accident, how could a jury of lay people come to such a conclusion.

After a review of the medical evidence presented, the court concluded that, given that the Plaintiff only currently intended to present the expert opinion of his treating physiatrist, the Mudano rule was not implicated given that there would not be a presentation of two (2) contradictory expert reports on the part of the Plaintiff.   

The court additionally held that, even if the opinions of both experts was put into evidence (which would likely be done by the defense), reviewing the experts’ opinions did not reveal them to constitute fatal and absolute contradictions with one another on a fundamental issue.  Rather, to the extent that the opinions were found to conflict with one another, the court felt that this issue should be left for the jury to decide.  

As such, the court denied the Motion for Partial Summary Judgment filed by the defense.

Anyone wishing to review this decision may click this LINK.

LET YOUR VOICE BE HEARD: Comment Period Open on Proposed Rule Changes on Venue (Most Pertinent to Medical Malpractice Cases)

Tort Talkers may recall Tort Reform movements from the around the turn of the century when changes were made in response to the number of medical malpractice claims that were being pursued at that time.

The venue rules adopted in 2002 were part of medical malpractice reforms enacted. These venue rules served to lower the number of medical malpractice cases filed in the liberal jurisdiction of Philadelphia by preventing filings there unless the cause of action arose in Philadelphia. 

The impact of these venue rules are summarized in this  REPORT from the PA Supreme Court which tracks the number of medical malpractice cases filed in each county. 

For example, between 2000 and 2002, there was an average of 1204 medical malpractice cases filed in Philadelphia per year. After the change to the venue rules, that figure plunged by half in 2003 and continued to decline until just recently.

Now there is a movement underway by the statewide Civil Rules Committee to revise the Pennsylvania Rules of Civil Procedure in this regard.

The proposed rule changes can be found HERE.

Here is the reasoning from the Explanatory Comment to the proposed rule:

“The current rule provides special treatment of a particular class of defendants, which no longer appears warranted. Data compiled by the Supreme Court on case filings on medical professional liability actions indicates that there has been a significant reduction in those filings for the past 15 years. Additionally, it has been reported to the Committee that this reduction has resulted in a decrease of the amount of claim payments resulting in far fewer compensated victims of medical negligence.”

 

This raises a debate on whether the venue rules as they stand are working for their intended effect or whether they are still needed given the decrease in medical malpractice claims. 

 

If you wish to weigh in on this debate the Civil Procedure Rules Committee is taking comments, suggestions, or objections on the proposed rule until February 22, 2019.  The preferred contact is by email. The Committee can be contacted at:

Karla M. Shultz, Counsel Civil Procedural Rules Committee

Supreme Court of Pennsylvania

Pennsylvania Judicial Center
P.O. Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
civilrules@pacourts.us


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith Law firm and writer of the excellent Drug and Device Law Blog for bringing this trend to my attention.

TORT TALK TIP

DON'T BE A JERK

That's it.  That's the Tip for 2019 and Beyond:  Don't be a Jerk.
 

Summary Judgment Granted in Store Slip and Fall Case

Summary Judgment was granted to a Defendant in the slip and fall case of Thomas v. Family Dollar Stores of Pennsylvania, LLC, No. 2:17-CV-04989 (E.D. Pa. Nov. 19, 2018 Kelly, J.).

In this matter, the Plaintiff alleged that she slipped and fell on a thick, yellow substance on the floor of the Defendant’s store while she was looking at the store shelves.   The court noted that the substance on the floor was next to a broken glass bottle.  

In its Motion for Summary Judgment, the Defendant argued that the substance was an open and obvious condition and that it owed no duty of care to the Plaintiff as it had no actual or constructive notice of the condition.  

The court in this matter noted that the record confirmed that the Plaintiff had acknowledged that there were no visual obstructions surrounding the liquid that concealed it from her view.   However, the Plaintiff was arguing that she was focused on the products on display on the store’s shelves at the time she fell. The Plaintiff contended that this was reasonable conduct for a shopper.  

The court rejected the Plaintiff’s argument in this regard, finding that it was “hornbook law in Pennsylvania that a person must look where he [or she] is going.”  

Judge Kelly also reviewed various Pennsylvania and Federal Court decisions applying Pennsylvania law that had rejected similar arguments by other Plaintiffs.    The court noted that the Pennsylvania Supreme Court had observed in the case of Rogers v. Max Azen, Inc., 16 A.2d 529 (Pa. 1940), that, although a lesser degree of attention was required of customers in stores as compared to those walking along sidewalks, the general rule that a Plaintiff must still watch where he or she was walking still applied and that, where one is injured as a result of a failure on his or her part to observe and avoid an obvious condition, the claim fails.  

Turning to the record before it, the court in Thomas ruled that the evidence revealed that the substance on the floor next to the broken glass in this case posed an obvious condition such that its danger should have been readily apparent to a person exercising normal perception and judgment.   Based on these findings, the court ruled that the Defendant did not breach any duty of care to the Plaintiff.  

The court in Thomas went on to also find that the Plaintiff’s claim failed due to the failure of the Plaintiff to show actual or constructive notice on the part of the Defendant of the condition.   The Plaintiff’s general assertion that the Defendant was negligent based upon a lack of policies and procedures for maintenance and safety in the Defendant’s store was rejected as insufficient to show that the Defendant had constructive notice of the spill.  

The court additionally noted that the Plaintiff failed to provide any evidence as to how long the spill was on the floor.   The court noted that an alleged failure to perform a safety sweep said nothing about how long the spill was actually present.   As such, the Defendant’s Motion for Summary Judgment was granted on this additional ground as well. 

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

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (Dec. 4, 2018)

Pennsylvania Superior Court Finds that Defense Verdict in Trip and Fall Case Was Not Against the Weight of the Evidence

In its recent decision in the case of Koziar v. Rayner, 2018 Pa. Super. 331 (Pa. Super. Dec. 7, 2018 Strassburger, Stabile, and Stevens, J.) (Op. by Strassburger, J.), the court reversed a trial court’s decision granting the Plaintiff a new trial under a rationale that the jury’s verdict was against the weight of the evidence in a trip and fall case.  

The Superior court ruled that the jury’s verdict that the Defendant’s negligence was not the cause of the Plaintiff’s alleged injuries should not have been reversed by the trial court as against the weight of the evidence. The Superior Court noted that the Plaintiff gave several different versions of the accident such that the jury could have disbelieved the Plaintiff as to how the accident occurred.  

The Superior Court also noted that the jury could have believed that the Plaintiff was contributorily negligent to the point that recovery was not permitted.  

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

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

Pennsylvania Supreme Court Rules That Lack of Padding On Public School Gym Walls Falls Within Real Estate Exception to PSTCA

In the case of Brewington v. City of Philadelphia, 23 EAP 2017 (Pa. Dec. 28, 2018)(Maj. Op. by Todd, J.)(Concurring Op. by Wecht, J.), the court considered the current status of the real property exception to the governmental immunity provided by the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. Section 8541 et seq.

In this case, the Court found that the lack of padding on a gym wall in a public school may constitute negligence in the care, custody, and control of real property, and thereby fall within the Act's real estate exception to immunity.  In this matter, a student was injured when he ran into the gym wall during a relay race.

As such, the defendant's motion for summary judgment was denied.

The Majority Opinion by Justice Todd can be viewed at this LINK.  The Concurring Opinion by Justice Wecht can be viewed HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

SAVE THE DATE: Encore Presentations of Forrest Gump Themed Civil Litigation Update CLE in February

Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at dburdge@monroebar.org to register.

The Lackawanna Bar Association will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email kmcdonough@lackawannabar.org.

The Lackawanna County CLE Lunch & Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at dancummins@comcast.net or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.