CIVIL LITIGATION UPDATE
THOMAS M. HOLMES, ESQ.
BENCH BAR CONFERENCE
OCTOBER 9, 2015
By
Julia K. Munley, Esq.
and
David I. Fallk, Esq.*
*Acknowledgement to Dan Cummins, Esq. and Tort Talk for assistance in providing some cases discussed herein.
INSURANCE - MOTOR VEHICLE EXCLUSION
Appeal from Trial Court order granting Motion for Summary Judgment in favor of the insurer.
The Superior Court found that the use of the motor vehicle exclusion in insured's homeowner's policy was not ambiguous and that because decedent's death was proximately caused by the ATV, the exclusion applied and operated to exclude homeowner's coverage for the decedent's death.
Wolfe v. Ross, 115 A.3d 880 (Super. Ct. May 2015).
DAMAGES FOR MEDICAL EXPENSES OF MINORS
The Superior Court held that the common law doctrine which prohibits a minor from recovering damages for medical expenses occurred before age of 18 is no longer viable, and the minor would have an independent right to recover medical expenses before turning 18 as long as the claim is not duplicative by the parents.
Czimmer v. Janssen Pharmaceuticals, Inc., 2015 Pa. Super. Lexis 473, 2015.
5TH AMENDMENT PRIVILEGE
On appeal to the Trial Court from the Special Trial Master's denial of defendant's motion to compel a witness's testimony on certain matters that the witness invoked the Fifth Amendment privilege. Judge Mazzoni found that, based on the circumstances of the case, the witness did not have reasonable cause to exercise the privilege of self-incrimination, and that defendants were entitled to conduct another deposition to inquire into those matters where the deponent asserted his 5th Amendment privilege.
Hilburn v. Jones, 2012 C.V. 6401, C.P. Lacka. Co. 8/4/14, Mazzoni, J.) cited in Auto Law Update 2015, Tort Talk by Daniel E. Cummins, Esq.
MEDICAL MALPRACTICE - PRIVILEGE FOR AN HMO UNDER
PEER REVIEW PROTECTION ACT
The Superior Court affirmed the Trial Court's decision that the quality of care review initiated by a health maintenance organization (HMO) and medical insurer did not constitute peer review for purposes of privilege under the Peer Review Protection Act.
Venosh v. Henzes, 2015 Pa. Super. 169, WL 471 2604.
PRINCIPAL/AGENT ARBITRATION AGREEMENTS IN
NURSING HOME NEGLIGENCE CASE.
Agency cannot be inferred from familial relationships. The Court needs to look at the facts to determine whether the principal expressly or impliedly intended to create an agency relationship. The Superior Court affirmed the Trial Court's decision that the arbitration agreement was invalid in that the son lacked express authority to sign the arbitration agreement on his father's behalf and that there was no evidence presented that he was authorized to act on his father's behalf for the purpose of apparent authority.
Wisler v. Manor Care of Lancaster, Pa., LLC, ___ A.3d ___ (Sept. 8, 2015, Super. Ct. 2015 WL 5215963).
COVERAGE UNDER AUTO POLICY FOR UIM BENEFITS
FOR FOSTER CHILD/REASONABLE EXPECTATION OF INSURED
The Superior Court held insured sufficiently pled former foster child qualified as a ward of insured's family as a covered family member under the policy. Further, there was a genuine issue of material fact as to whether the insured reasonably believed the former foster child would be covered under the auto policy.
Rourke v. Pennsylvania Nat. Mut. Cas. Ins., 166 A.3d 87 (Pa. Super. 2015).
MOTION IN LIMINE - FAILED DRUG SCREENING
Plaintiff's Motion in Limine precluding evidence of a failed drug screen of the plaintiff, her testimony denying same, and her denial of use of drugs during a visit with a doctor were found by the Trial Court to be collateral matters without an independent basis for being admissible at trial.
Detrick v. Burrus, No. 2011 CV 133 (C.P. Lackawanna Co. 2/23/19, Nealon, J.) cited in Auto Law Update 2015, Tort Talk by Daniel E. Cummins, Esq.
PENNSYLVANIA MOTOR VEHICLE LIABILITY LAW --
PENNSYLVANIA RULES OF THE ROAD
In their Motion for Summary Judgment, the defendants, cab driver and cab company, argued the cab driver complied with duties under the Motor Vehicle Code with regard to making a U-turn and were entitled to summary judgment. However, the Court ruled that in viewing the summary judgment record in the light most favorable to the non-moving parties, the plaintiff and the third defendant, the driver of the second vehicle, that there was enough evidence for the matter to go to a jury for determination.
Williams v. Beavers, et al., (2015 W.L. 5456358, (Lacka. Co. C.P., Nealon, J.)
MOTION FOR CONTINUATION OF DEFENSE PSYCHIATRIC IME
An appeal that was beyond 10 days from the Special Master's decision on defendant's motion to compel additional IME evaluation was found to be an untimely appeal. Moreover, on the merits, the Trial Court found there was no good cause shown for the second IME, nor was there proper notice to the plaintiff under the Pa. Rules of Civil Procedure such that the defendants' appeal to the Trial Court was dismissed.
Trojanowicz v. Ford Motor Co., (No. 2013 CV 223, Decision 2/10/15, Minora, J. cited in Auto Law Update 2015, Tort Talk by Daniel E. Cummins, Esq.
MOTION FOR SUMMARY JUDGMENT ON PUNITIVE DAMAGE CLAIM -- CELL PHONE USE
Summary judgment granted in favor of defense dismissing the punitive damage claim based on defendant's use of a cell phone during a motor vehicle accident.
Gunsallus v. Smith, No. 2013-2765 C.P. Center Co. 4/7/15, Kistler, J. cited in Auto Law Update 2015, Tort Talk by Daniel E. Cummins, Esq.
SERVICE
Manager of McDonald’s franchisee is not a proper person to serve to obtain jurisdiction. Pa. R.C.P. 424. Affidavits filed in support of Preliminary Objections show person served not involved in day to day management so as to imbue him with authority to accept service even though in charge of restaurant at time of service. McDonald’s only owned land according to affidavits. Trexler v. McDonald’s, 118 A. 3d 408 ( Pa. Super. 2015)
AGENCY
Difference between express authority, implied authority, apparent agency, and authority by estoppel discussed. Wife could not bind husband to arbitration agreement which was separate from admission agreement, and admission not conditioned on agreement to arbitrate. Washburn v. Northern Health, 2015 WL 4712600 (Pa. Super 2015)
DAMAGES
Compromised 50-50 verdict on liability was enough to sustain verdict on damages which totaled far less than stipulated medical bills and lost wages. Award was “low enough to raise an eyebrow” but did not defy “common sense or logic” thus proved to be not shocking. Not a product of “passion, prejudice, partiality, or corruption.” ”Stipulated economic damages were $37,413.65. Verdict was $10,000 and then reduced by half for comparative negligence. Dissent of Judge Ott that verdict bore “no reasonable relationship” to the “uncontradicted evidence”. Unaddressed issue is that of jury instructions or verdict slip as to reduction where comparative negligence occurs. Kindermann v. Cunningham, 110 A. 3d 191 (Pa. Super. 2015)
MEDICAL MALPRACTICE
Difference between issues raised by informed-consent doctrine as a defense and negligent performance of procedure. Fact that patient consents to a procedure does not make it more or less probable that physician was negligent. There is no consent to negligence no matter what the known risks. Informed consent is irrelevant. Further, there is no assumption of the risk defense that vitiates duty to provide ordinary care. Brady v. Urbas, 111 A. 3d 1155 (P. 2015)(Saylor)
TRIAL/EVIDENCE
Collateral sources brought up in cross-exam of life care expert on effect of ACA and Medicaid. Although this did not go to liability could have affected jury’s thinking. Moreover, trial court allowed a “tag team” of counsel from both Trustees of Penn as well as of hospital after stipulation to proceed only against one of those entities. Deeds v. University of PA. Medical Center, 110 A. 3d 1009 (Pa. Super 2015)
EVIDENCE/BIAS
Extent of cross examination of medical expert for bias is in discretion of trial court. Limitation must cause actual prejudice. Impeachment is allowed to show partiality through financial interest. Defense doctor admitted he earned substantial income from litigation—exams and reports yielding between $100k and $150k per year. Doctor also admitted he did 85%-90% of exams for defense and that he was trying to grow his expert testimony business. He further admitted that he thought he would be less likely to be hired if his report was not helpful to the one who hired him. Trial court excluded admission that expert did not expect to see seriously injured persons or mention of insurance company referrals or of common findings in multiple reports. Flenke v. Huntington, 111 A. 3d 1197 (Pa. Super 2015)*
TRIAL/EVIDENCE
Requests deemed admitted prior to trial because of one year delay in response. However, summary judgement for Plaintiff denied. Also denied request to read admissions at trial as duplicative of evidence already adduced. Question of timing as to when request to use admissions made. Krepps v. Snyder, 112 A. 3d 1246 (Pa. Super 2015)
DISCOVERY
Broad request for discovery of past medical records, including infancy, dental and psychological records. Balance between broad discovery rights and what is reasonably calculated to lead to relevant information. Prior accident records for same areas at issue allowed. ”Open ended discovery demands are not self-proving.” General claims of damages for shock, mental anguish, agony and suffering do NOT constitute waiver of psychiatric/psychological treatment absent additional claims of mental injury, severe emotional trauma, etc. Bandru v. Fawzen, 2015 D. & C. Dec. (Lackawanna, Nealon)
WORKERS COMPENSATION
Legislature could not delegate to AMA criteria for determining partial or total disability. Most recent AMA “guides” (Sixth Edition) lacked necessary government review and adoption by General Assembly. Protz v. WCAB, 2015 WL 5474071 (Pa. Cmwlth. 2015)
WORKERS’ COMPENSATION/DAMAGES
Plaintiff’s workers’ compensation case is litigated before the personal injury case comes to trial. Comp judge finds not all claimed injuries were result of accident. No appeal taken Trial judge of personal injury case enters partial summary judgment on basis of collateral estoppel. McConnell v. Delprincipe, PICS # 14-1674 (C.P. Lawrence Co.)
NEGLIGENCE
Superior Court en banc finds 5/8” defect in sidewalk sufficient factual jury question to reverse ruling of summary judgment on basis of trivial defect doctrine. Plaintiff use expert and did not rely on res ipsa. Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80 (Pa. Super. Ct. 2015)appeal denied,117 A.3d 298 (Pa. 2015)
RECUSAL
United States Supreme Court has agreed to hear the case of Williams v. Pennsylvania #15-5040 to review whether former Pa. Supreme Court Chief Justice Castille should have recused himself on appeal from a capital case that his office prosecuted when he was the D.A. of Philadelphia.