News Call Your Next Witness - Christon Halkiotis May 2, 2013 < Back Share to: Christon Halkiotis and I have a lot in common, in that we're both former prosecutors who sought a change after a handful of years representing the government. Christon's path took her to criminal defense, where she started her own practice in 2019 in Greensboro, North Carolina after 15 years as a prosecutor. Her practice flourished immediately, which is a testament to Christon's personality, reputation and credibility among colleagues, and also, to a ton of hard work! She shares some lessons about how to make yourself a better attorney, what it was like to "hang out a shingle," and how she has dealt with owning a business during the pandemic. You can listen here, or wherever you download podcasts. If you have questions about the podcast, or about being a guest, please email Brian Gibbons. Previous Next Contact

News Egg Hatching: Will the Salmonella Scare Finally Result in Passage of New Food Regulation? August 25, 2010 < Back Share to: We have previously reported on the Food Safety Modernization Act -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=661. Conventional wisdom held that, in this election year, the Act was unlikely to make it out of Congress for a signature by the President. The recent salmonella egg recall (http://www.philly.com/philly/wires/ap/business/101258889.html) -- which apparently arises out of a company with a history of violations (http://www.washingtonpost.com/wp-dyn/content/article/2010/08/21/AR2010082102822.html) -- might change that. Political pressure for Congress to address the Act is mounting -- http://www.claimsjournal.com/news/national/2010/08/24/112696.htm. And, of course, class action lawsuits arising out of the egg recall are also hatching -- http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202470887062&slreturn=1&hbxlogin=1. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News The EDPA Grants Summary Judgment In Products Liability Case In Favor Of Entity That Only Prepared Product’s Specifications (PA) October 29, 2020 < Back Share to: In Zielinski v. Mega Manufacturing Inc, the court granted summary judgment to the manufacturers of two pieces of equipment used in the processing of sheet metal, where one defendant prepared specifications to construct the allegedly-defect product, but did not actually manufacture or supply it. By way of background, Robert Zielinski was employed as a machine operator at a U-Haul manufacturing facility. On October 16, 2017, Zielinski was operating a Whitney 3400 XP machine to punch or stamp sheet metal. While doing so, an adjacent table being used to store metal sheets upended, causing the metal sheets to fall on Zielinski, killing him. The Whitney machine was manufactured by Mega. When U-Haul purchased the machine, Mega informed it that “Customer must supply tables or material handling devices for raw material and finished parts. Mega will supply the necessary information to build these tables.” Although Mega prepared engineering drawings for U-Haul that provided specifications to guide the design and construction of a table, it did not build the table, certify the table, or otherwise take responsibility for the table. Rather than construct a table, U-Haul purchased a scissor-lift table from Econo Lift that was “consistent” with the specifications that Mega provided. Econo Lift’s specifications called for the table to be anchored to the floor. The table contained a warning that read “PLACE LOAD ON CENTER OF TABLE.” The owner’s manual advised “Position load, so it will be centered.” U-Haul did not follow Econo Lift’s instructions. It modified the table by welding four caster wheels to the bottom frame rather than anchoring it to the floor and by welding extensions to the table. These modifications covered up the warning label. The Whitney machine was fitted with an optional piece of equipment called a PartHANDLER-II that was used to pick up raw metal sheets and place them on the machine to be stamped or punched. The PartHANDLER-II could also be used to remove finished sheets from the machine and load them onto the table. At the time of the accident, Zielinski was not using the PartHandler-II. Instead, he was loading and unloading the metal sheets manually, and using the Econo Lift scissor-lift table to stack both raw sheet metal and the finished product. While Zielinski was transferring finished sheets from the Whitney machine onto the scissor-lift table, the table upended, causing the sheets to fall on top of him. There was no evidence of what caused the able to upend. Although Mega trained U-Haul employees on the Whitney machine’s use and serviced the machine, there was no evidence that Mega or Econo Lift authorized, or even evaluated the modifications to the scissor-lift table. Both Mega and Econo Lift moved for summary judgment. Zielinski’s widow, Deborah, did not oppose Econo Lift’s motion, but she did oppose Mega’s motion. She contended that Mega was liable – not for an injury caused by its own product – but because it failed to warn her husband about the use of the table in connection with its work. In granting Mega’s motion for summary judgment, the court held that a company that did not manufacture or supply the allegedly defective product is not liable under a theory of strict liability or failure to warn. Even if the scissor-lift table caused Zielinski’s injuries when it tipped, Mega did not manufacture, supply, sell, or even recommend the table. The fact that Mega provided U-Haul with specifications does not render it strictly liable. The specifications did not recommend a specific table, nor did they expressly or impliedly approve the Econo Lift table, or even a scissor-lift table more generally. Mega did not have a duty to warn simply because it specified the size of the table that would make the PartHANDLER-II work. In fact, Mega did not even require its customer to utilize material tables. They could stack the sheets on the floor. The court also held that Deborah Zielinski proffered no evidence that the alleged defect – the lack of a warning – was the proximate cause of death. There was no evidence as to what caused the scissor-lift table to upend. The court posited that U-Haul’s decision to weld casters to the bottom of the table, rather than anchor it to the ground, and its decision to weld extensions to the sides of the able, thereby altering its center of gravity, was just as likely to have caused the table to tip. Without any evidence, Plaintiff could not establish that the existence of a warning would have caused her husband to act differently than he did. Under Pennsylvania law the standard for establishing a strict liability claim was designed to be satisfied more easily than that for a negligence claim. Plaintiff’s negligence claim was based on Mega’s alleged failure to warn about the dangers of using the scissor-lift table that a different manufacturer – Econo Lift – made. Because Mega had no duty to warn about the use of table it did not manufacture, supply, or sell, Plaintiff’s negligence claim failed for the same reason as her strict liability claim. As with her strict liability claim, the court also held that Plaintiff was unable to establish that the breach of a duty – the lack of warning – caused her husband’s death because there was no evidence in the record that demonstrated that a warning would have lead Zielinski to act differently. The court’s reasoning in this case appears to be a straightforward application of Pennsylvania products liability law to a rather favorable set of facts for the defendants: Mega did not manufacture or supply the allegedly defective Econo Lift scissor-lift table, and Zielinski’s employer modified the table after purchasing it. The court notes that the scissor-lift table was “consistent” with Mega’s specifications, with explaining how. Left unanswered is the question of what would have happened had U-Haul constructed a materials table that complied exactly with Mega’s specifications. Under those circumstances, it is unclear whether Mega would still escape liability for defective product that it did not manufacture or supply, but which was built to its express specifications. Thanks to Jim Scott for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Suffolk County (NY) Operating Protocols – Effective February 22, 2021 February 23, 2021 < Back Share to: As COVID-19 numbers seem to be at least be trending in the right direction, NY courts are preparing to resume in-person proceedings. (For the time being, remote appearances will remain the norm, but it makes sense to be prepared for in-person litigation.) Suffolk County has issued new protocols, which you can review here. Effective February 22, 2021, the new protocols include the following: Each Judge may hold in-person proceedings on two days each week, subject to clerk staff, courtroom space and time availability, unless an exception is requested and granted by the Administrative Judge;Occupancy of all courtrooms shall be limited to the lesser of 20 people or 1/2 the posted room occupancy per code, however, an exception shall be granted for jury trials or grand juries (in those instances, occupancy shall be limited to the lesser of 30 people or 1/2 the posted room occupancy per code).The following matters may be heard in person, provided the presiding judge finds the matter cannot proceed virtually: All matters mentioned on Exhibit A of the Court’s update;Article 10 proceedings;Adoptions;Civil and Criminal Evidentiary Hearings and Bench Trials;Pleas and Sentences;Jury Trials may be scheduled to occur beginning March 22, 2021;Surrogate's Court Citations;Eviction Proceedings;Any proceeding involving a self-represented litigant where the judge determines that holding the proceeding via Microsoft Teams denies the litigant meaningful access to the proceeding; andTraffic violation proceedings. All other matters must be heard virtually via Microsoft Teams. All that being said, the Administrative Judge can exact more restrictive protocols as deemed appropriate. The Unified Court System has also issued its protocols and procedures to opt for Virtual bench trials -- a decision which will hinge on the case, and a collaboration between the attorneys and their clients. Interestingly, it appears jury trials are an exception to the courtroom occupancy limitations that otherwise govern. Even assuming the courtrooms and court staff have social distancing protocols in mind, the current framework still requires jurors to be summoned--and to appear--at the courthouse. As vaccination numbers increase, we expect jurors will be more amenable to appearing to serve. To the extent jury trials actually do return in New York in 2021, we expect those trials to take place with social distancing guidelines in mind, and with masked attorneys, witnesses, court staff and jurors. Thanks to Corey Morgenstern for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News A Plaintiff's Dream? The Unemployed Get Jury Duty Preference. June 25, 2012 < Back Share to: We tend to steer clear of more political discussions here at Of Interest, but every once in a while an idea comes along that we simply have to point out. According to Fred Clark, a well-known blogger, a solution to both the unemployment problem and the boring nature of jury duty would be to give jury duty preference to the unemployed and combine jury duty with a job fair. As if finding a fair and impartial jury isn't hard enough... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Employer’s Tort Immunity Clarified Under Workers’ Compensation Act (PA) November 21, 2019 < Back Share to: The Pennsylvania Superior Court recently issued an opinion that explained and clarified the tort immunity standard under the ‘borrowed employee’ doctrine as it applies to employers under the Worker’s Compensation Act (WCA). In Burrell v. Streamlight Inc. 2019 PA Super 335, No. 908 EDA 2019, the Superior Court affirmed the trial court’s granting of Streamlight’s motion for summary judgment that argued that Streamlight, as Burrell’s employer, was immune from tort liability following its awarding of workers’ compensation benefits. Burrell was a temporary worker who was hired by a temp agency, Aerotek, and was assigned as a temporary worker at Streamlight. Burrell was injured when he fell during his work shift at Streamlight while he was disposing of trash at Streamlight’s facility. Burrell admitted that his injury occurred in the course and scope of his employment at Streamlight and that he received workers’ compensation benefits for his injury. Subsequently, he filed a personal injury action against Streamlight and Streamlight then moved for summary judgment following the close of discovery alleging that it was immune from tort liability under the WCA. In its opinion, the Court articulated the general rule in Pennsylvania that, except in limited circumstances not present in the instant case, an employer is immune from tort liability for injuries suffered by its employees that are compensable under the WCA. The Court further noted that, under the borrowed employee doctrine, when a worker employed by one company is furnished by that company to perform work for another company, the latter company is his employer under the WCA if it has the right to control his work and the manner in which the work is done. In other words, the entity possessing the right to control the servant’s work is the employer for purposes of the WCA and its tort immunity. In concluding that Streamlight possessed the right to control Burrell’s work and therefore was his employer for purposes of the WCA, the Court emphasized that Streamight: set Burrell’s hours, job duties, and where he would be performing his work; interviewed Burrell and made the decision as to the job he would do before Aerotek assigned Burrell to Streamlight; supervised Burrell and answered Burrell’s questions about his work; and answered any questions regarding Burrell’s work hours. Furthermore, there was no claim that Burrell was operating under Aerotek’s direction or supervision when he was taking out the trash when he was injured. Therefore, the Superior Court affirmed the lower court’s granting of summary judgment in favor of Streamlight and ruled that Streamlight was Burrell’s employer as a matter of law and was therefore immune from tort liability following its provision of workers’ compensation benefits. Thank you to Gregory D. Herrold for his contribution to this post. If you have any questions please contact Vincent Terrasi. Previous Next Contact

News Surfing The Web: Authenticating Out-of-State Legal Documents March 4, 2013 < Back Share to: Many practitioners puzzle over how to admit in to evidence legal documents from other states. But, in the digital age, there appears to be a ready answer to this dilemma. Judicial notice can be defined as the authority of the court to accept as fact certain matters that are of common knowledge from sources that guarantee accuracy or are official records -- without the need for evidence establishing the facts. But do digital records pulled off an official website qualify for judicial notice? Camilla Lowther Management v. Majestic Mills, 653137/11 (Feb. 11), appears to answer that question. There the special referee took judicial notice of print-outs from a website, purporting to be complaints filed in a California court, which plaintiff was attempting to introduce into evidence. The plaintiff provided the documents, along with an affirmation detailing the process he used to access and print the documents. Plaintiff further affirmed that the documents were true and accurate representations of the records appearing on the official California court website. The special referee accepted the documents over objection, noting that the documents were a hearsay exception as a public record. Furthermore, the special referee ruled that the safeguards regarding authenticity under CPLR § 4518(a) and New York Technology Law § 306 were met permitting the pleadings filed in the California court to be taken into evidence by judicial notice despite not being certified. Special thanks to Johan Obregon for his contribution to this post. For more information, please contact Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Here Illegally? So What. October 17, 2013 < Back Share to: In Lopez v. Sunrise One, a jury awarded plaintiff $1,706,714 for future medical expenses with the award intended to compensate plaintiff over 28 years. Defendant Sunrise moved to set aside the award, contending the court improperly allowed testimony regarding plaintiff’s inability to work and improperly precluded admission of evidence of plaintiff’s immigration status. The court granted defendants motion regarding future medical expenses, as it found the award was not supported by the evidence in the record. The court, however, reaffirmed its decision to preclude evidence of plaintiff’s immigration status, relying on Angamarca v. New York City Partnership Hous. Dev. Fund Inc., 87 A.D.3d 206 (1st Dep’t 2011). The trial court, following Angamarca, noted that the issue of citizenship lacked probative value as to the jury’s calculation of damages because no evidence was presented that plaintiff was planning to return to his native country or that deportation was imminent, and no additional evidence was proffered regarding the lower cost of future medical care in plaintiff’s native country. While you can attack future medical expenses on a basic lack of proof, plaintiff’s status as an illegal alien cannot be used to attack an award of future medical expenses -- or otherwise. Thanks to Alison Weintraub for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Will the Pope Be Deposed? April 1, 2010 < Back Share to: Holy Week is a time of reflection and anticipation as the Church prepares to celebrate Easter, its holiest feast day and the key to the central mystery of the Faith. This year, however, the Church's focus may not be on the holy season, but rather on a new wave of lawsuits arising out of allegations of priestly sexual misconduct. Putting aside the merits of the claims, which is far beyond the charter of this blawg, one of the interesting legal issues to arise is whether the Pope, himself, will be deposed. The Vatican is already mounting a sovereign immunity defense. Now, we'll have to see what a Kentucky court does. It's worth remembering that Kentucky was once at the forefront of the Know Nothing movement. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.msnbc.msn.com/id/36103589/ns/world_news-europe/ Previous Next Contact

News One Word Makes All the Difference: PA Supreme Court to Weigh In on UIM Rejection Form June 8, 2016 < Back Share to: May 24, 2016, the Pennsylvania Supreme Court agreed to review a relatively discreet issue regarding the validity of an underinsured motorist coverage (“UIM”) rejection form in Ford v. American States Insurance Company. Specifically, the question before the Pennsylvania Supreme Court is whether an insurer’s UIM rejection form “specifically complies” with Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”). The underlying facts of the case arise out of a 2013 motor vehicle accident. Alisha Ford was seriously injured in a motor vehicle accident and sought UIM coverage from her mother’s insurer, American States Insurance Company (“American”). American rejected Ford’s request for UIM benefits because Ford’s mother explicitly rejected UIM coverage. Ford’s main contention is that her mother’s rejection form is invalid because the rejection form does not “specifically comply” with § 1731(c) of the MVFRL, which provides the form to be used in the context of rejection UIM coverage. The interesting part of Ford’s contention is that the rejection form signed by her mother and the form language in § 1731(c) only differs by one word. Specifically, the rejection form that Ford’s mother signed states, in part, that “Underinsured motorist coverage protects me and relatives….” Conversely, § 1731(c)’s rejection form states, in pertinent part, “Uninsured coverage protects me and relatives…” Accordingly, the only difference between the two forms is the inclusion of the term “motorist.” Both the trial court and the Superior Court found that the addition of the word “motorist” had no impact on the validity of the UIM rejection form. The Supreme Court’s decision on the issue will come down to whether strict compliance with § 1731(c) is required in order for a UIM rejection form to be valid. It will be interesting for sure to see how the Supreme Court rules in this regard. Thanks to Erin Connoly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY App. Div. Holds Landlord Liable For Lead Paint Exposure January 7, 2010 < Back Share to: In Rivas v. Cruciata & Sons, LLC, the infant plaintiffs were diagnosed with lead poisoning while they were tenants in a building owned by Cruciata. The NYC Department of Health and Mental Hygiene (DHMH) found unlawfully high levels of lead on the painted surfaces of the radiator and the exterior window casings in the plaintiffs' apartment and issued an abatement order. The plaintiffs subsequently sued Cruciata for damages arising out of their five-month exposure to lead. Cruciata moved for summary judgment arguing that it did not have notice of the lead condition until the DHMH issued the abatement order and that it promptly abated the lead once notified. The lower court granted Cruciata's motion, but the appellate court reversed holding that there were issues of fact as to whether Cruciata knew that children lived in the apartment; was aware of the dangers of lead paint; and whether there was peeling paint in their apartment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09015.htm Previous Next Contact