Patient Safety Reports Ruled Admissible in Medical Malpractice Case

In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Lehigh Co. June 17, 2022 Caffrey, J.), the Court ruled that Defendants failed to demonstrate the certain patient safety reports generated by the medical providers while Plaintiff was in hospital to give birth were immune from discovery in this medical malpractice suit under either the Peer Review Protection Act or the privilege afforded by the Medical Care Availability and Reduction Error Act. The court granted Plaintiff’s Motion to Compel.

Anyone wishing to review this decision, may click this LINK


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Source of images: www.pexels.com.

Federal Court Addresses Potiential Liability of Drug Manufacturer in Products Liability Case

In the case of DiCair v. Gilead Sci., Inc., No. 21-CV-5486 (E.D. Pa. July 12, 2022 Schiller, J.), the court ruled that negligent failure-to-warn and strict liability product claims against a pharmaceutical manufacturer were barred as a matter of Pennsylvania law.  As such, a Defendants’ Motion to Dismiss was granted in part and denied in part.

According to the Opinion, the Defendant designed and manufactured a prescription medication sold under the trade name of Harvoni which was used to treat Hepatitis C. 

The Plaintiff’s decedent was prescribed the medication and, after taking the medication, was diagnosed with a form of liver cancer. The Plaintiff’s decedent passed away thereafter.

The Plaintiff filed this lawsuit alleging a failure to warn and design and manufacturing defect claims under both negligence and strict liability. The Plaintiffs claimed that the decedent’s development of cancer was caused by his use of the medication.

The court dismissed the negligent failure-to-warn claim, noting that it was well-settled Pennsylvania law that pharmaceutical companies do not owe a duty to warn the public. Rather, manufacturers of medications are only required to warn prescribing doctors of the risk of the medications.  The court cited to the learned intermediary doctrine which holds that drug manufacturers are only required to direct required drug safety warnings to physicians who, in turn, are required to relay the same to patients.

However, the court declined to dismiss the Plaintiff’s negligent design and manufacturing defect theories, finding that the Plaintiff had asserted a valid cause of action that the Defendants had allegedly negligently designed and manufactured the medication.

Lastly, the court did dismiss the Plaintiff’s strict liability claims after holding that strict liability claims against prescription drug manufacturers were barred by Pennsylvania products liability law.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 12, 2022).

Source of image:  Photo by Anna Shvets on www.pexels.com.

Delay Damages To Be Calculated on UIM Award After Award Is Molded Down To Policy Limits

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Aug. 19, 2022 Nealon, J.), the court addressed issues regarding the molding of a jury verdict to the amount of the UIM carrier’s policy limits and how to handle a claim for delay damages based upon the verdict in this context.

According to the Opinion, there were two (2) separate jury trials in this matter given issues that were raised following the first trial.

After the juries in the separate UIM benefits trial awarded the Plaintiff $75,000.00 in economic damages and $175,000.00 in non-economic damages, for an aggregate gross award of $250,000.00, the combined verdicts were reduced to a net UIM award of $150,000.00 after the application of a credit for the tortfeasor’s liability insurance coverage limits of $100,000.00.

Thereafter, the UIM Defendant filed a Post-Trial Motion pursuant to Pa. R.C.P. 227.1(a)(4) seeking to mold the $150,000.00 net award further downward to the amount of the UIM coverage available of $100,000.00.

At the same time, the Plaintiff filed her own Post-Trial Motion requesting an award of delay damages under Pa. R.C.P. 238 based upon the higher net award of $150,000.00.

Judge Terrence R. Nealon
Lackawanna County

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed Pennsylvania precedent and confirm that, absent bad faith liability on the part of the UIM carrier, the law of Pennsylvania limits the maximum legally recoverable damages in a UIM trial to the UIM policy limits set forth in the insurance contract and requires that an award that is in excess of those policy limits be molded down to the amount of the UIM policy limits. 

 As such, the court agreed to grant the UIM carrier’s Motion to Modify the Net UIM Verdict of $150,000.00 down to the UIM policy limit of $100,000.00.

Relative to the claim for delay damages presented by the Plaintiff, the carrier initially asserted that delay damages are not recoverable in connection with a UIM benefits claim.

Judge Nealon disagreed and noted that, although arbitrators in a UIM Arbitration proceeding do not have the authority to award delay damages under Rule 238 unless the insurance contract grants the arbitrators that authority, the parties in this case chose to litigate the UIM claim in a civil action in the Court of Common Pleas, thereby rendering Pa. R.C.P. 238 applicable to the matter.

Judge Nealon further held that, since the UIM carrier did not make a written settlement offer and did not establish that the Plaintiff caused any delay of the trial, the Plaintiff’s Motion for Delay Damages was granted. 

However, the court noted that the delay damages would be calculated upon her legally recoverable damages of the $100,000.00 UIM policy limits, rather than the net award of $150,000.00.

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

Source of image:  Photo by Olia Danilevich on www.pexels.com.

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Court Finds That Plaintiff's Claims Are Barred By Open and Obvious Doctrine

A U-Boat

In the case of Doundas v. Redner’s Market, Inc., No. 2020-CV-1747 (C.P. Leh. Co. May 9, 2022 Pavlack, J.), the court entered summary judgment in favor of a Defendant supermarket after finding the Defendant was not liable for the alleged personal injuries suffered by a Plaintiff while a business invitee in the Defendant’s store given that the condition involved was allegedly open and obvious and would be recognized by a reasonable person in the position of the Plaintiff, exercising normal perception, intelligence and judgment.

According to the Opinion, while the Plaintiff was in the Defendant supermarket, there was a “u-boat,” that is, a cart used to stock shelves, positioned in close proximity to the refrigerators in the dairy aisle.

According to the Plaintiff, when she took a step to get between the u-boat and the refrigerator door to get an item, her foot got caught under the u-boat, causing her to fall to the ground.

The Plaintiff filed a Complaint alleging that the store was negligent and caused the Plaintiff to fall and be injured. The Plaintiff alleged that the store created an unreasonable risk of harm when the store employee positioned a u-boat in a dangerous manner because the position of the u-boat allegedly funneled patrons, including the Plaintiff, towards and against the refrigerators and that caused her foot to go underneath the u-boat, which allegedly led to her fall.

The defense filed a Motion for Summary Judgment arguing that the condition was open and obvious and that, therefore, the store did not owe the Plaintiff any duty in this regard as a matter of law.

According to the Opinion, the record more specifically revealed that the Plaintiff attempted on multiple times to retrieve yogurt out of the refrigerator but that the door would only partially open because of the position of the u-boat. As such, the court concluded from the record that the Plaintiff was aware of, and understood, the position of the u-boat. The record also confirmed that the Plaintiff admitted that she had noticed the u-boat from the time she began walking down the dairy aisle and walked up to it.

The court found from the evidence that the u-boat and its position was therefore known and obvious to the Plaintiff. The court additionally found that any risk related to the u-boat or its position would be apparent to a reasonable person because a reasonable person would understand that a temporary cart could pose a risk if a person walks so close to the cart that she came into contact with it.

As such, the Defendant’s Motion for Summary Judgment was granted under the doctrine of an open and obvious condition.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Defendant Township Found Not to Be a Joint Tortfeasor With Co-Defendant Given Township's Immunity from Suit

In the case of Owens v. Huffman, No. 10612 of 2021, C.A. (C.P. Lawr. Co. July 8, 2022 Motto, P.J.), the court ruled that a Defendant Township was not a joint tortfeasor with its Co-Defendants in this lawsuit involving alleged property damages related to septic system issues.

The Court ruled that the Township was not a joint tortfeasor with the Co-Defendants due to the Township’s standing as a governmental agency and concomitant immunity.

As such, the court ruled that the Co-Defendants could not recover on or pursue a claim of indemnity or contribution from the Township. In light of this ruling, the courts sustained a Defendant Townships Preliminary Objections in this case involving damages claims arising out of issues with a septic system on the property involved.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Third Party Release Held to Bar Companion UIM Claim

In the case of Richards v. Nationwide Prop. & Cas. Ins. Co., No. 289 of 2019, G.D. (C.P. Fay. Co. Feb. 23, 2022 George, J.), the court granted the Defendant insurance company’s Motion to Dismiss a Plaintiff’s UIM claims on the basis that the Plaintiff had signed a Release which discharged the carrier Defendant from all past, present, and future claims arising out of the accident at issue.   

According to the Opinion, the Plaintiff and her husband were in a motor vehicle accident after the Plaintiff’s husband lost control of the vehicle, struck a center divider, and then were struck by another vehicle. 

At the time of the accident, there were two (2) policies issued by Nationwide that existed for the Plaintiff’s household.   The first policy covered the Plaintiff and her husband as well as the car involved in the accident and the second policy covered other household vehicles.   

As the husband was the allegedly at-fault driver in the accident, the Plaintiffs made a third party bodily injury negligence claim against her husband under the first policy, under which the Defendant carrier paid the policy limits.   

The Plaintiff, who then assisted by counsel, signed a Release with respect to that tortfeasor Defendant in terms of the accident.

The Plaintiff then attempted to assert a claim for UIM benefits under the second Nationwide policy, claiming that there was a mutual understanding of the parties that the above noted Release would not affect this request.  

The Defendant carrier denied this claim and argued that the UIM policy did not provide coverage for any motor vehicle furnished for the regular use of the Plaintiff, the Plaintiff’s resident, or the Plaintiff’s relative.  

The Plaintiff then brought suit against the Defendant alleging that the regular use exclusion in the policy conflicted with Pennsylvania’s Motor Vehicle Financial Responsibility Law. 

The Defendant carrier responded by filing a Motion for Summary Judgment in which it was separately also asserted that the Plaintiff had previously settled all claims by executing an unambiguous Release.  

The defense argued that, although the Plaintiff argued that there was a mutual mistake at the time of the signing of the settlement agreement, the court held that Pennsylvania law treats releases as contracts and that the Plaintiff was represented by counsel at the time of the signing of the settlement agreement at which point she indicated that she understood the nature of the contract.  

Based on this analysis the court granted the Defendant’s Motion for Summary Judgment.  The court emphasized that the Plaintiff was admittedly aware of the existence of the additional insurance policies when she signed the Release under which she agreed to settle all claims.

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (July 19, 2022).   

Source of image: Photo by Mikhail Nilov on www.pexels.com.