Tort Talk

Informed Consent Claim Dismissed Due to Lack of Expert Testimony

Wed, 20 Oct 2021 14:00:00 +0200

In the case of Bilinski v. Wills Eye Hospital, No. 2:16-CV-02728-GJP (E.D. Pa. Sept. 1, 2021 Pappert, J.), the court ruled a Plaintiff’s failure to produce expert medical testimony in support of a battery claim arising from lack of informed consent was fatal to the claims presented in that regard.

However, the court otherwise noted that the Plaintiff was not required to produce expert medical testimony relative to an emotional distress claim as jurors could evaluate the emotional harm allegedly inflicted upon the Plaintiff due to the Plaintiff’s allegedly being subjected to a medical procedure against his will.

According to the Opinion, the Plaintiff reported to an eye surgeon for an evaluation to be fitted with cataract lenses. The Plaintiff alleged that the doctor evaluated both of the Plaintiff’s eyes but did not prescribe glasses. Instead, the doctor allegedly grabbed the Plaintiff by the shirt telling him that he needed laser treatment immediately because his eyes were going to blow up. The doctor then allegedly looked up at the ceiling and laughed.

The Plaintiff alleged that the doctor physically grabbed the Plaintiff and led him to another room where a laser procedure was performed on the Plaintiff’s right eye. The Plaintiff alleged that the doctor, who was a surgery fellow, had not consulted with any attending physician and had completed the procedure without supervision and without the Plaintiff’s consent. All of these allegations were denied by the defense.

As noted, the court granted in part and denied in part the Defendants’ Motion to Dismiss. The court agreed with the Defendants that the Plaintiff’s failure to retain a medical expert was fatal to some of the claims presented.

The court also ruled that there was a genuine factual dispute as to whether or not the Plaintiff had consented to the laser procedure.

The court additionally noted that, while the Plaintiff was required to have produced expert medical testimony to prove that he sustained physical harm and suffering due to the alleged medical battery, the Plaintiff did not need an expert to support his claim for emotional distress as, in the court’s eyes, jurors could understand the emotional trauma of being subjected to a medical procedure without consent. As such, the Plaintiff’s emotional trauma claim was allowed to proceed.

The court otherwise ruled that the Plaintiff did need to produce an expert to support his lack of informed consent claim in order that the jury may be educated on what would constitute informed consent in a medical setting.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 23, 2021).

Source of image: Photo by David Travis on Unsplash.com

LINK to Copy of J.C. v. Horizon Medical Corp. Decision From Yesterday's Post Regarding Statute of Limitations in Sex Abuse Civil Claims

Tue, 19 Oct 2021 18:48:46 +0200

In the case of J.C. v. Horizon Medical Corp., No. 20-CV-1222 (C.P. Lacka. Co. Oct. 8, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a number of issues relating to sex abuse claims in a civil litigation matter.

According to the Opinion, an allergist allegedly sexually abused a student in his medical practice office.

After Section 5533(b)(2) of the Judicial Code, 42 Pa. C.S.A., was amended effective November 26, 2019, to extend the applicable statute of limitations to the Plaintiff’s 30th birthday, the student filed a Complaint against the allergist and his corporate employer.

The corporate employer filed a demurrer asserting that the student’s claims were time barred since the statute of limitations period that was extended by the amendment go the law should only apply to the individual perpetrators and not their employers. The employer also argued that the amendment to the loss could not be applied retroactively to revive her lapsed claim.

Judge Nealon disagreed and noted that the plain language of §5533, and its legislative history, supported the conclusion that the expanded statute of limitations period was intended to apply not only to the individual offenders, but also their alleged institutional enablers and principals.

The court otherwise ruled on other issues that the Plaintiff’s allegations in support of her fraud and punitive damages claims were sufficiently specific to provide the allergist and his employer with adequate notice of the claims against which they must defend.

Judge Nealon also noted that allegations in the Plaintiff’s Complaint regarding alleged issues between the allergist and another student were relevant to the issue of whether the employer knew or should have known of the necessity for greater supervision and monitoring of the doctor. As such, Judge Nealon denied the argument that such allegations constituted scandalous or impertinent matter and allowed those allegations to proceed.

In the end, the court overruled all of the Preliminary Objections asserted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Robert T. Moran of the Moran Law Group, LLC in Scranton, PA for bringing this case to my attention.

Source of image: Photo by Edgar Moran on Unsplash.com.

Court Finds Extension of Statute of Limitations in Sex Abuse Civil Cases Also Applies to Related Employers of Perpetrators

Tue, 19 Oct 2021 14:00:00 +0200

Source of image: Photo by Edgar Moran on Unsplash.com.

Court Dismisses UIM Bad Faith Claims Based Upon Disagreements Over Value of the Claim

Mon, 18 Oct 2021 14:00:00 +0200

In the case of DeLuca v. United Financial Cas. Co., No. 3:19-CV-01661 (M.D. Pa. Sept. 22, 2021 Wilson, J.), the court granted summary judgment to the carrier in this uninsured motorist bad faith claim where the claim was based, in part, on the fact that the settlement offer was a small fraction of the demand.

The court ruled that the record before it only revealed a valuation dispute. The court additionally noted that the records confirmed that the insurance company had conducted a detailed and timely investigation into the claims presented before making its settlement offers, whatever the size of the offers were during the course of the matter.

According to the Opinion, the UM policy had a $300,000.00 limit, which was demanded. During the course of the matter, the carrier offered a small fraction of that amount to settle, while stating that its investigation was ongoing.

The record revealed that the carrier had initially offered the Plaintiff $7,500.00 to settle the UM claim based upon the information secured as of that time. After considering that offer, the insured demanded the policy limits, which demand the carrier reviewed. After a subsequent discussion, the insured then lowered her demand to $100,000.00. However, a month later, the demand was raised back to $300,000.00.

The carrier continued to negotiate and offered $9,000.00 which was rejected. Thereafter, additional medical records were produced, which were reviewed by the carrier, resulting in an increase of the settlement offer to $11,500.00. The Plaintiff’s demand remained at the $300,000.00 policy limits.

Thereafter, additional medical care was completed and medical records were provided to the carrier. The carrier reviewed those additional records. There were no additional demands before suit was filed.

Judge Wilson noted that the Third Circuit and the Middle Federal District Court of Pennsylvania have made clear that disagreements over the value of an insured’s claim and failing to merely offer the policy limits does not equate to bad faith, without more, on the part of the carrier. In the end, Judge Wilson found that the Plaintiff had not provided any evidence that would cause the court to find that the carrier did not have a reasonable basis for denying the benefits claimed.

After reviewing the current status of bad faith law in Pennsylvania, the court granted summary judgment.

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

I send thanks to Attorney Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention. Attorney Applebaum is affiliated with the Philadelphia law firm of Fineman, Krekstein & Harris.

Federal Court Dismisses Bad Faith Claims Asserted Directly Against to Claims Adjusters in a UIM Case

Mon, 18 Oct 2021 07:00:00 +0200

In the case of Holohan v. Mid-Century Ins. Co., No. CV 20-6903 (E.D. Pa. Sept. 27, 2021 Tucker, J.), the court denied bad faith claims asserted by a Plaintiff against two (2) automobile insurance adjusters. Other bad faith claims asserted against the carrier were allowed to proceed.

According to the Opinion, this case involved claims against an automobile insurance carrier regarding two (2) distinct motor vehicle accidents. The insured husband alleged personal injuries as a result of a first accident that were exacerbated in a second accident. The Plaintiff alleged that he was underpaid on the first loss for medical benefits and asserted that his UIM claim was mishandled relative to the second accident.

The Plaintiff brought various claims for breach of contract and bad faith as well as claims under the Unfair Trade Practices and Consumer Protection Law against the two (2) individual claims representatives.

The Defendant carrier filed a Motion to Dismiss the claims against it as well as the individual claims representatives.

The court found that the claims against the individual adjusters failed after finding that, while insurance adjusters have a duty to their principals and should conduct investigations in a proper manner, this duty does not create a contractual obligation between the adjuster and the insured. Rather, only the principal, that is, the insurance company, could have such contractual liability.

The court dismissed the claims against the individual adjusters for these reasons and given that there were no facts pled by the Complaint to support any claims of deceptive or fraudulent conduct under the Unfair Trade Practices and Consumer Protection Law.

The court did allow the statutory bad faith claims asserted against the carrier to proceed after finding that the Plaintiff had stated sufficient factual allegations in support of the same. In particular, the Plaintiff alleged, in part, that the carrier and one of the adjusters conducted seven (7) peer reviews with respect to the Plaintiff’s treatment in an effort to challenge causation and deny benefits.

The court otherwise dismissed the Plaintiff’s common law bad faith claims after finding that those claims were subsumed in the breach of contract claims.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog HERE.

Source of image: Photo by Adolfo Felix on Unsplash.com.

Please Consider Attending These Upcoming CLEs

Fri, 15 Oct 2021 14:30:00 +0200

Below is a listing of upcoming virtual and live CLEs that I am participating in as a presenter. Should you need CLE credits, I am hoping you might consider these CLEs.

October 22 - 10 a.m. - Wayne County Bench Bar Conference (LIVE ATTENDANCE ONLY, BUT MY PRESENTATION WILL BE ZOOMED IN TO THE EVENT)

"Back to School With Tort Talk: A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

This LIVE CLE will take place at Tick Toc's On the Terrace, 760 Terrace Street, Honesdale, PA. Although this all day CLE is a live event my presentation at 10 a.m. will be via Zoom as I am presenting at the Lackawnna Bench Bar Conference in Scranton on the same day.

Non-members are invited and welcome to attend. The cost to attend is $50. The price includes a light breakfast, lunch and the CLE credits.

To review the full Agenda of courses for this event and/or to register, please email the Chairman of the Wayne County Bench Bar, Attorney Joseph Rydzewski at joerr@poconolawyers.net. Payment must be made when you arrive at the CLE.

October 22 - Lackawanna County Bench Bar Conference (VIRTUAL)

"Best Litigation Practices in the Covid Era"

Tips for improving your practice while utilizing advanced commuication technology such as Zoom. Presented by Daniel E. Cummins of Cummins Law, Paul Oven of Dougherty, Leventhal & Price, and JP Cardoni and Leah Kane of Exhibit A. Program to be Moderated by Thomas P. Cummings of Dougherty, Leventhal & Price.

Free to Lackawanna County Bar Members.

Please contact Kaitlin McDonough of the Bar Association at kmcdonough@lackawannabar.org to register. Must register by Friday, October 15, 2021.

October 29 - Pennsylvania Defense Institute (Non-members welcome)(VIRTUAL)

"Back to School With Tort Talk: A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

Free for PDI Members

Non-Members welcome and invited to attend; Fee for Non-Members is $35.00.

REGISTRATION AND PAYMENT METHODS:

Complete Form and mail with check (if applicable) payable to “PDI” to: Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112 and e-mail Registration to cwasilefski@padefense.org or lgamby@padefense.org.

Register online https://us06web.zoom.us/webinar/register/WN_6nqKJwHUTdyKESaf4tlF4g and mail a check (if applicable) payable to “PDI” at Pennsylvania Defense Institute, P.O. Box 6099, Harrisburg, PA 17112.

Go to PDI website: www.padefense.org and register using for provided on Events Page and pay via PayPal.

Upon receipt of Registration and Fee, Registrant will receive information for joining Webinar and required submission following Webinar via e-mail.

November 4 - 1:15 p.m. - Luzerne County Bench Bar Conference (LIVE)

"Using Social Media as a Weapon for the Plaintiff and the Defendant"

Attorney Daniel E. Cummins of Cummins Law and Attorney Jamie Anzalone of Anzalone Law will co-present and provide an overview of the law of Pennsylvania regarding the discoverability and admissibility of social media evidence in civil litigation matters. The presenters will also review how social media evidence has been used for the benefit of Plaintiffs and Defendants at trial.

The Fee to register for Wilkes-Barre Law Library Association Members is $49 if paid by October 26th. After that date the Fee is $69.00.

Non-members welcome and invited to attend. Fee for Non-Members is $100 if paid by October 26th.. After October 26th, that fee for non-members jumps to $125.

You can register for this CLE through the Bar Association's website HERE.

Time To Schedule Your Year-End Mediation

Fri, 15 Oct 2021 14:30:00 +0200

SCHEDULE YOUR END-OF-THE YEAR MEDIATION NOW

BRING YOUR CASE TO A CLOSE

CALL (570) 319-5899

EMAIL dancummins@Cumminslaw.net

Trial Court Addresses Peer Review Privilege Claimed by Hospital

Thu, 14 Oct 2021 20:00:35 +0200

In the case of Limprevel v. Children’s Hospital of Philadelphia, No. 18082309 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court found that a Defendant hospital failed to demonstrate that documents identified in its privileged log in this medical malpractice case were protected under the Peer Review Protection Act where the evidence illustrated that those documents were not in fact produced for a peer review.

In this Rule 1925 Opinion, the trial court recommended that the Superior Court affirm its Discovery Order.

According to the Opinion, this medical malpractice case arose out of an outbreak of an adenovirus in the neonatal intensive care unit in the Children’s Hospital of Philadelphia in 2016. The hospital medical director began an investigation into the outbreak.

In this case, the Plaintiff sought certain discovery from the hospital, including materials relative to the notice provided to the medical director after receiving notification of the outbreak.

The trial court ordered the hospital to produce certain documents and unredacted versions of other documents. The hospital filed this appeal, which prompted this Rule 1925 Opinion by the trial court.

As stated, the court ruled that the documents at issue were discoverable because the hospital had failed to establish that the documents at issue were created for purposes of a peer review. As such, the court found that the peer review privilege did not apply.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 5, 2021).

Source of image: Photo by Karolina Grabowska on Unsplash.com.

Notable Pennsylvania Supreme Court Decision on Scope of Peer Review Privilege (From August, 2021)

Thu, 14 Oct 2021 19:52:14 +0200

In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021)(Op. by Saylor, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act.

In its decision, the court held that a hospital’s credentials committee qualified as a “review committee” for purposes of the Peer Review Protection Act to the extent it undertook peer reviews.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Databank to queries submitted to it, regardless of any contrary state law.

This matter arose out of a medical malpractice action. The Plaintiff sought the credentialing file of a certain doctor. The Plaintiff was seeking this information to support their claim that the hospital’s credentialing was inadequate and allegedly led to the injuries sustained by the Plaintiff during surgery.

During the course of discovery, the hospital, while providing portions of the credentialing file, refused to disclose certain documents that contained evaluations prepared by other practitioners of the Defendant doctor’s performance, as well as responses to queries submitted to the National Practitioner Databank.

After the Plaintiffs filed a Motion to Compel in this regard, these issues worked their way up the appellate ladder to the Pennsylvania Supreme Court’s decision summarized here.

The majority Opinion in the Pennsylvania Supreme Court Ledbitter noted that the Peer Review Protection Act privilege only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital that a credentials committee is a “review committee” to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

On the Federal Healthcare Quality and Improvement Act issues, the Pennsylvania Supreme Court found that the language of the statute and the purpose of the statute supported the hospital’s position that responses to the queries submitted to the National Practitioner Databank are privileged and that federal privilege trumps state law that would otherwise permit disclosure of that information.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK. The Concurring Opinion by Justice Wecht can be viewed HERE.

I send thanks to Attorney Laura A. Endler, counsel for the Geisinger Health System, for bringing this case to my attention.

Source of image: Photo by Hush Naidoo on Unsplash.com.

Please Consider Supporting a Good Cause -- Tickets on Sale Now

Wed, 13 Oct 2021 14:00:00 +0200

For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.

Superior Court Upholds Transfer of Venue Under Doctrine of Forum Non Conveniens

Tue, 12 Oct 2021 14:00:00 +0200

Headed Back to Reading

In the case of Doe v. Bright Horizons Children’s Center, LLC, No. 1733 EDA 2020 (Pa. Super. Sept 10, 2021 Bowes, J. and Musmanno, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a request to transfer a case under the doctrine of forum non conveniens.

The Plaintiffs had filed suit in Philadelphia County on claims that their child had allegedly been abused at a daycare center located in Reading, Berks County, Pennsylvania.

After reviewing the record before the court, the appellate court agreed that all relevant actions took place in Berks County over a two (2) year period. The court additionally noted that none of the parties or witnesses were located in Philadelphia where the case was filed.

The court otherwise noted that, given the logistical issues that a Philadelphia trial would entail, the trial court did not abuse its discretion in transferring venue.

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

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

Upcoming CLE Presentations

Mon, 11 Oct 2021 14:30:00 +0200

Below is a listing of upcoming virtual and live CLEs that I am participating in as a presenter. Should you need CLE credits, I am hoping you might consider these CLEs.

October 22 - 10 a.m. - Wayne County Bench Bar Conference (LIVE ATTENDANCE ONLY, BUT MY PRESENTATION WILL BE ZOOMED IN TO THE EVENT)

"Back to School With Tort Talk: A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

Non-members are invited and welcome to attend. The cost to attend is $50. The price includes a light breakfast, lunch and the CLE credits.

October 22 - Lackawanna County Bench Bar Conference (VIRTUAL)

"Best Litigation Practices in the Covid Era"

Free to Lackawanna County Bar Members.

Please contact Kaitlin McDonough of the Bar Association at kmcdonough@lackawannabar.org to register. Must register by Friday, October 15, 2021.

October 29 - Noon - Pennsylvania Defense Institute (Non-members welcome)(VIRTUAL)

"Back to School With Tort Talk: A Civil Litigation Update" (encore presentation)

A review of the notable civil litigation decisions from around the Commonwealth of Pennsylvania as highlighted on the Tort Talk blog presented by Daniel E. Cummins of Cummins Law.

Free for PDI Members

Non-Members welcome and invited to attend; Fee for Non-Members is $35.00.

November 4 - Luzerne County Bench Bar Conference (LIVE)

"Using Social Media as a Weapon for the Plaintiff and the Defendant"

The Fee to register for Wilkes-Barre Law Library Association Members is $49 if paid by October 26th. After that date the Fee is $69.00.

Non-members welcome and invited to attend. Fee for Non-Members is $100 if paid by October 26th.. After October 26th, that fee for non-members jumps to $125.

You can register for this CLE through the Bar Association's website HERE.

Latest Stacking Case from Pennsylvania Superior Court

Fri, 08 Oct 2021 14:00:00 +0200

In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 2784 EDA 2019 (Pa. Super. Sept. 24, 2021) (en banc) (Op. by Lazarus, J.) (dissenting Op. by McCaffery, J.), a majority of an en banc Pennsylvania Superior Court panel reversed a prior three (3) judge Pennsylvania Superior Court’s panel’s decision and held that the removal of a vehicle from a policy does not constitute a purchase of coverage that requires the insured to be provided the opportunity to wave stacking in writing at the time of that removal of the vehicle.

After providing a detailed review of Pennsylvania jurisprudence on the issue of stacking under the trilogy of Sackett cases, all of which involved the issue of adding or replacing vehicles on auto insurance policies, the Court in this Franks case noted that there did not appear to be any prior decisions covering the facts of this case which involved the removal of a vehicle from a multi-vehicle policy.

In the end, the Court in this case found that the deletion of a vehicle from the policy could not be viewed in any way as a "purchase" of coverage as that term is utilized under 75 Pa.C.S.A. Section 1738 so as to trigger any need to secure new written stacking waivers.

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

I send thanks to Attorney Thomas Helbig for bringing this case to my attention via an email blast to all of his contacts.

Source of image: Photo by James Sutton on Unsplash.com.

UM Bad Faith Claim Regarding Disagreement Over Value of Claim Dismissed

Thu, 07 Oct 2021 14:00:00 +0200

In the case of Brown v. LM Gen. Ins. Co., No. 21-2134 (E.D. Pa. Aug. 24, 2021 Pratter, J.), the court granted a Defendant carrier’s Motion to Dismiss a Plaintiff’s bad faith claim in a UM matter after finding that the Plaintiff could not sustain a bad faith claim against the insurance company where the allegations in her Amended Complaint boiled down to a disagreement between the parties over the amount of a settlement for uninsured motorist benefits.

In this matter, the Plaintiff had alleged that the carrier, among other things, failed to conduct a medical evaluation, review the Plaintiff’s medical records, or otherwise invest the claims presented prior to offering a settlement. The Plaintiff also claimed that the carrier was dilatory in its claims handling practices when it allegedly mispresented that it would resolve the claim and then continuously and endlessly requested documentation before ignoring that documentation.

The defense argued that the Plaintiff had simply recycled the same allegations as in the initial pleading. The carrier also asserted that the Amended Complaint again came down to a claim by the Plaintiff that, because the carrier allegedly failed to offer an amount to which the Plaintiff believed she was entitled, the carrier allegedly acted in bad faith. The carrier also emphasized that there was a serious dispute in this case as to whether or not the Plaintiff was even entitled to coverage under the applicable policy.

After reviewing the current status of Pennsylvania law regarding bad faith claims, the court found that, although the Plaintiff’s Amended Complaint listed thirty-eight (38) ways in which Liberty Mutual allegedly acted in bad faith, the list was a list of conclusions, not facts. The court found that there were no details offered by the Plaintiff that would describe or was supposedly unfair about the process.

Relative to the claim that the carrier acted in a dilatory fashion, the court noted that the Plaintiff failed to meet her requirement of asserting specific facts to support that allegation such as the number of months between a demand and a settlement offer.

The court noted that, in the end, the Amended Complaint simply reflected a disagreement between the parties over the amount of an appropriate settlement of the claims presented. The court reiterated a well-settled law that an insured must do more than allege an allegedly “low-ball” offer.

The court also emphasized that “a policy limit- -as its name suggests- -is the theoretical maximum that an insured could recover. ‘It is not the de fecto value of a claim.’” See Op. at p. 5.

Given that the Plaintiff had failed to support her claim for bad faith with facts, this claim was dismissed with prejudice.

The court also addressed the carrier’s Motion to Strike all references in the Plaintiff’s Complaint that the carrier’s conduct was reckless, wanton, and willful relative to the declaratory judgment and breach of contract claims.

The court found that, in order to prevail on a Motion to Strike allegations, the allegations must not only be unrelated to the claim presented but the moving party must show how the moving party will be prejudiced if the allegations are allowed to remain in the pleadings.

Given that the carrier failed to explain how it will be prejudiced in this matter if the challenged allegations are not stricken, the court denied the Motion to Strike. The court also noted that a bald assertion that the carrier acted willfully or recklessly is only a legal conclusion that the court need not accept as true.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 17, 2021).

Motion For Summary Judgment Entered in Favor of PennDOT in Pothole Case

Wed, 06 Oct 2021 14:00:00 +0200

In the case of Teixeira v. Com. of Penna., Dept. of Transp., No. 7917-CIVIL-2019 (C.P. Monroe Co. Aug. 5, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendant’s Motion for Summary Judgment in a matter involving a motorcycle accident.

The Plaintiff motorcyclist alleges that he hit a large pothole on Interstate Route 80 in Monroe County as a result of which he crashed and sustained multiple injuries.

The court noted that the issue before it concerned the pothole exception to the sovereign immunity allowed under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8522(b)(5). The Commonwealth of Pennsylvania asserted that it was protected from civil suits based in tort under the doctrine of sovereign immunity unless one of the ten narrow exceptions to the law apply. As noted, the Plaintiff was arguing the potholes and other dangerous conditions exception to the Act.

The court noted that a Plaintiff seeking to utilize this exception must prove that there was sufficient prior written notice provided to the Commonwealth of Pennsylvania of the allegedly dangerous condition.

Here, the court accepted PennDOT’s argument that the Plaintiff failed to show that there was actual written notice provided to PennDOT of the pothole in question.

The court noted that, while the record revealed that various complaints were called in by members of the public and reduced to writing by the PennDOT call center, those complaints identified problems with Route 80 in general and varied widely in terms of complaints with respect to the area where potholes existed.

The court additionally noted that nothing was submitted in actual writing by the actual complainants themselves to PennDOT.

The court additionally confirmed that none of the complaints identified in the records reference the exact pothole that was involved in this accident. Nor were any of the complaints specific to the mile marker at the location of the accident. Rather, the complaints were generally applied to Route 80 which stretches at least 20 miles through Monroe County.

As such the court found no genuine issue of material fact was presented in this case on the question at issue of whether any actual notice of the pothole in question was provided to PennDOT prior to the subject incident. As such, the court granted PennDOT’s Motion for Summary Judgment.

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

Please Consider Attending 13th Annual Virtual Fundraising Gala

Tue, 05 Oct 2021 19:00:11 +0200

Motion To Bifurcate Lackawanna County Post-Koken Trial Denied

Tue, 05 Oct 2021 14:00:00 +0200

In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Sept 15, 2021 Gibbons, J.), the court addressed a Motion to Bifurcate the Trial in this post-Koken automobile accident litigation. After reviewing Pa. R.C.P. 213(b) and after noting that the parties had cited two (2) court decisions at the trial court level from around the Commonwealth, this court chose to deny the Motion to Bifurcate.

Judge Gibbons noted that he believed that the attorneys involved would be able to outline their respective positions on the third party negligence claims and the UIM breach of contract claims to the jury in such a way as to avoid any confusion or prejudice. The court additionally felt that any potential prejudice to the third party Defendant in having an insurance company as a Co-Defendant could be rooted out in Voir Dire.

Judge James A. Gibbons
Lackawanna County

The Court also noted that the jury would be properly instructed on the law applicable to the negligence claims as well as the breach of contract claims.

Judge Gibbons also noted that he wished to remain consistent with the prior decisions out of Lackawanna County denying Motions to Bifurcate in post-Koken matters.

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

Proper Standard of Liability for Construction Contractors Reviewed for Work Completed

Mon, 04 Oct 2021 14:00:00 +0200

In the case of Brown v. City of Oil City, No. 337 C.D. 2020 (Pa. Cmwlth. Sept. 1, 2021) (Op. by Leavitt, J.), the Pennsylvania Commonwealth Court found that a trial court erred in granting summary judgment in favor of a contractor and a subcontractor in a fatal slip and fall action. The appellate court found that the trial court failed to apply the proper standard of liability for contractors who, on behalf of the possessor of land, allegedly created a condition that caused harm after the work had been accepted by the possessor of land.

According to the Opinion, the Plaintiff’s decedent slipped and fell on library steps and died from her injuries. The Plaintiff sued the City and a library association alleging poor construction or maintenance of the steps. The Complaint was later amended to name the contractor, architectural firm and subcontractor involved in the construction of the steps.

The appellate court reviewed §385 of the Restatement (Second) of Torts along with Pennsylvania law construing that Restatement language. That Restatement governs the extent to which a contractor may be liable for work completed on behalf of a possessor of land when someone is hurt by the work completed after the work has been accepted by the possessor of land. The Commonwealth Court found that the law extends a contractor’s liability to third persons who are injured by an artificial condition of the land created by the contractor after the possessor of land has accepted the completed work.

The appellate court reversed the trial court’s entry of summary judgment in favor of the contractor Defendant and held that it was for a jury to decide whether the condition of the library steps was of a dangerous character and caused the decedent’s physical injury and death.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of image: Photo by Greyson Joralemon on Unsplash.

Peer Review Privilege for Hospital's Documents Reviewed

Thu, 30 Sep 2021 14:00:00 +0200

In the case of Gill v. Children’s Hospital of Philadelphia, No. 180900385 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court addressed a Defendant hospital’s appeal of its Discovery Order granting the Plaintiff’s Motion to Strike the hospital’s privilege objections related to hospital documents and powerpoint presentations that were created following an outbreak of a virus in the neonatal intensive care unit.

The Defendants argued that the Peer Review Protection Act and the Medical Care and Availability and Reduction of Error (MCARE) Act served to protect from discovery the documents that the Plaintiff had requested in discovery.

In this Rule 1925 Opinion issued by the trial court, the trial court disagreed with the Defendant’s arguments.

The trial court noted that the creation date and the content of the hospital’s documents at issue indicated that they were not protected by the peer review privilege. The court also noted that the hospital had already disclosed some of the information at issue to third parties, which served to waive any claimed privilege.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).

Source of image: Photo by National Cancer Institute on Unsplash.com.

Summary Judgment Denied in Limited Tort Case

Tue, 28 Sep 2021 14:00:00 +0200

In the case of Cialella v. Allstate Prop. & Cas. Ins. Co., No. 10469-CV-2018 (C.P. Lawr. Co. June 10, 2021 Motto, J.), the court denied a Defendant’s Motion for Summary Judgment based upon limited tort defenses in a motor vehicle accident case.

The court ultimately ruled that genuine issues of material fact existed as to whether or not the Plaintiff has sustained a serious injury.

According to the record before the court, the Plaintiff’s treating doctors diagnosed the Plaintiff with a cervical radiculopathy, cervicalgia, a lumbosacral strain, rotator cuff tendonitis, and a transient synovitis. During the course of her care, the Plaintiff received injections to treat the injuries to her cervical spine, elbow, and shoulder.

The Plaintiff’s medical expert also offered his opinion that the Plaintiff sustained permanent injuries and that she would require future treatments, including an annual radiofrequency ablation procedures and three (3) cervical epidural steroid injections every year for her cervical spine complaints.

The trial court in this matter reviewed the factors set forth under the care of Washington v. Baxter, 719 A.2d 733 (Pa. 1998).

In addition to reviewing the Plaintiff’s injuries and treatment, the court also noted that, after the accident, the Plaintiff had to quit her job as a housekeeper due to her limitations that prevented her from performing her duties. The Plaintiff did return to a part-time housekeeping job but alleged that she was limited to part-time work due to her left arm issues. The Plaintiff additionally testified that she could no longer enjoy her hobby of painting with arm pain.

As noted above, the court found that genuine issues of material fact prevented the entry of summary judgment on the limited tort defense.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).

Source of image: Photo by Jackson Simmer on Unsplash.com.