News Methodology Means Most Under Frye (PA) April 3, 2018 < Back Share to: On April 2, 2018, the Superior Court of Pennsylvania affirmed the trial court’s decision to admit expert testimony in Deivert v. Pittsburgh Chauffeur, LLC., over the objection of defendants. On the night of February 1, 2014, plaintiff Matthew Deivert attended a birthday celebration for one of his friends from Allegheny College. Several other people attended, and they rented a limousine bus to take them to a bar and back. Around 2:00 a.m., the bus came to pick everyone up. It could seat ten people, though twenty crammed in. On the ride back, Deivert’s right leg became pinned between several passengers, causing excruciating pain. When they managed to exit the bus, Deivert found that the friction from the ride had caused severe burns on his leg, requiring a later skin graft. A jury returned a verdict against the bus company of $500,000 for Deivert. Pittsburgh Chauffeur appealed, stating that the court incorrectly admitted Deivert’s medical expert testimony. The court, and later Superior Court, denied this appeal on the basis that Pittsburgh Chauffeur was merely challenging Deivert’s expert on the basis that his conclusion was not generally accepted by the medical community. Under the Frye test in Pennsylvania, the court only looks at whether an expert’s methodology is generally accepted, not their conclusion. The court cited the fact that Deivert’s expert reviewed his records, conducted a physical exam, looked at photos, and reviewed deposition testimony, methodology which is generally accepted in the community. This case sheds light on issues with the Frye test that is used in Pennsylvania courts. As stated above, courts will focus on an expert’s methodology, and not the conclusion - however unique it may be from general opinion. This is important to keep in mind when making Frye challenges in Pennsylvania and putting together motions in limine. By properly focusing on the methodology used by the other side, instead of their end conclusions however odd, one can properly attack an opponent’s expert and try to keep out testimony from trial. But if the expert "connects the dots" between the accident and the treatment with accepted methodology, the Court will likely allow that testimony. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Follow The Rules! Plaintiff’s Claims Dismissed For Failure To Comply With Court Orders (PA) December 15, 2021 < Back Share to: In Vilgosas, et al. v. Janssen Research & Development LLC, et al., the Pennsylvania Superior Court affirmed the trial court’s dismissal of the plaintiff’s claims after he failed to comply with the court discovery order. The court reasoned that the plaintiff’s failure to comply with the discovery order impeded the defendants’ ability to defend the case. From 2013 to 2014, plaintiff Alfred Vilgosas (“Vilgosas”) suffered complications from the drug prescribed medication Xarelto including internal bleeding. Vilgosas was not the only Xarelto user with complications and by 2019, nearly 2,000 civil claims had been filed in Philadelphia County against Xarelto manufacturer for similar complications. In March 2019, the plaintiffs in all Xarelto claims negotiated a $750 million settlement to resolve all outstanding Xarelto claims. As part of the settlement, the court issued a case management order with several obligations for the plaintiffs. Vilgosas failed to comply with the discovery order. Janssen filed a notice of deficiencies with the court. Vilgosas then continued to defy the court order when he failed to produce required documents to Janssen at the show cause hearing. The trial court dismissed Vilgosas’ claims. Vilgosas then appealed to the Pennsylvania Superior Court. In affirming, Superior Court found Vilgosas’ failure to produce records impeded Janssen’s ability to defend itself. Specifically, Vilgosas failed to produce hospital records that would have had information on his underlying conditions and treatment. This information was necessary for the defense. Further, the court found that Vilgosas’s noncompliance was willful and in bad faith. Thanks to John Lang for his assistance in this article. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact

News Storm in Progress - Fall At Your Own Risk (NY) July 6, 2017 < Back Share to: Under the “Storm in Progress” doctrine, a property owner cannot be held liable for a hazardous condition created by precipitation unless “it had a reasonably sufficient time from the cessation of the precipitation to remedy the condition.” In O ’Sullivan v. 7-Eleven, Inc., a mini-market was able to convince a judge that it had taken all reasonable steps during a storm to defeat a slip and fall claim. The plaintiff was injured when she slipped and fell on an accumulation of slush in front of a counter in a 7-Eleven store, during an ongoing snowstorm. In dismissing the case, the court found that defendants were not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm. The court was persuaded by evidence that the store had placed out a rain mat and an orange cone on the floor in warning and had mopped the store during the day, including within 15 minutes before plaintiff's accident. The court found that this proof demonstrated reasonable maintenance measures to prevent such a condition. The record also showed that defendants did not have constructive notice of the specific wet condition that the plaintiff alleged was dangerous. The fact that it was snowing, with water and slush tracked in, was not sufficient notice of a particular dangerous situation, warranting more than the laying of floor mats. This case highlights the importance of making a prima facie showing of an entitlement to summary judgment as a matter of law. The defendant might not have such a favorable result without admissible proof of reasonable maintenance measures. When contemplating such a motion, a defendant must be able to call upon evidence such as employee or non-party witness testimony, and good record keeping of the accident report and maintenance logs. It is generally not enough to simply argue that there was a storm in progress, rather proof must be established that defendants did something in response and could prove that it had. Thanks to Vincent Terraski for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Experts Require Objective Evidence to Survive Net Opinion Rule (NJ) April 12, 2018 < Back Share to: Dining at the Cheesecake Factory is normally an enjoyable event. However, in Piper v. The Cheesecake Factory a plaintiff in New Jersey filed suit for personal injuries after her lunch was ruined when a server allegedly dropped a plate onto the floor. The dish shattered when it hit the floor, and the fragment allegedly struck the plaintiff in the left eye. Noami Piper filed suit against the Cheesecake Factory claiming that the clumsy server caused her to suffer a corneal abrasion. In support of her claim, the plaintiff served an expert report prepared by her treating ophthalmologist, Dr. Hitesh Patel. Dr. Patel did not find any evidence of a foreign body in the plaintiff’s eye, or a corneal abrasion. However, in his report, Dr. Patel opined that, based on his experience with other patients, a trauma may have exacerbated the plaintiff’s pre-existing conditions and prolonged her discomfort. N.J.R.E. 703 addresses the foundational requirements for expert testimony. It requires an expert to ground their opinion in facts or data derived from one of the following sources: (1) the expert's own personal observations; (2) evidence admitted at trial; or (3) evidence of "the type . . . normally relied upon by experts." However, an expert is also required to "give the why and wherefore" in support of their opinion. In other words, an opinion consisting of "bare conclusions" or speculative hypotheses "unsupported by factual evidence" is inadmissible as a net opinion. The Cheesecake Factory filed a motion for summary judgment, arguing that Dr. Patel’s report constituted an inadmissible net opinion. The court agreed, and dismissed plaintiff’s complaint. On appeal, the court upheld the decision, finding that Dr. Patel’s report was not based on objective medical evidence. Without a medical expert, the plaintiff could not satisfy her burden of proof with respect to the element of proximate cause. This case is important, since it highlights the need for a medical expert to support their conclusion with objective evidence. Thanks to Heather Aquino for her contribution for this post. Please write to Vito A. Pinto for further information.       Previous Next Contact

News No Negligence Needed: Court Upholds Broad Application of Additional Insured Endorsement (NY) January 3, 2020 < Back Share to: In Fireman's Fund Ins. Co. v State Natl. Ins. Co., the New York Appellate Division, First Department addressed the issue of how to construe broadly worded additional insured endorsements. The coverage dispute arose out of an underlying slip and fall personal injury that occurred on a newly refinished catwalk passageway. While navigating this passageway, Mary Jane Schudde fell and sustained injuries due to the color of the floor surface which made it difficult to perceive the change in elevation and caused her to trip. She sued her building and management company, Windsor and Argo, for negligence. Windsor and Argo in turn commenced a third-party action for contractual indemnification against Upgrade, the contractor that refinished the passageway. The building had contracted with Upgrade to waterproof the passageway, but Upgrade did not choose the surface color. Upgrade’s insurance policy with State National contained a blanket additional insured clause which provided coverage to Windsor and Argo “with respect to operations performed by or on behalf of” Upgrade and stated that it was primary for damages to any additional insured arising out of Upgrade's operations. On the other hand, Windsor and Argo’s insurance policy, issued by Fireman’s Fund, provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available. On this basis the Supreme Court held that Windsor and Argo were additional insureds because the accident “arose out of” Upgrade’s operations of painting the steps where the injury occurred. On appeal, defendant argued that Windsor and Argo were not additional insureds because there was no finding of negligence against Upgrade since Upgrade did not choose the ill-fated color and thus did not proximately cause the accident. But the First Department did not buy it. The court held that even though Upgrade was not at fault for the injury, the accident still “arose out of” Upgrade's operations and therefore it fell within their policy’s broadly worded additional insured clause. This decision underscores the importance of policy drafting on the part of insurers, especially for insurers of contractors and subcontractors, since New York Courts will broadly construe additional insured clauses even without a finding of negligence by the contractor. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Sometimes, De Minimus Contacts Equals Maximum Damage Award! (PA) March 12, 2021 < Back Share to: In a recent en banc opinion, the Pennsylvania Superior Court found that a couple should not be prevented from suing in their choice of venue even where only a small percentage of the defendant company’s $1.4 billion in revenue is derived there. In Hangey, et al. v. Husqvarna Professional Products, Inc., et al. plaintiffs, husband and wife, brought suit after Mr. Hangey fell off a Husqvarna lawn mower and both of his legs were maimed when the lawn mower’s blades did not stop. Mr. Hangey purchased the lawn mower in Bucks County, Pennsylvania and the incident occurred at the Hangeys’ home in Wayne County, Pennsylvania. However, the Hangeys brought suit in Philadelphia County, Pennsylvania—which is known as an extremely favorable plaintiff’s forum. Husqvarna filed preliminary objections arguing—among other things—improper venue. Discovery revealed that Philadelphia did not fall within Husqvarna’s target market area, Husqvarna did not conduct regular business in Philadelphia, Husqvarna was not incorporated in Philadelphia, and only 0.005% of Husqvarna’s sales came from its authorized dealer in Philadelphia County. As such, the trial court granted Husqvarna’s preliminary objections raising improper venue. The Pennsylvania Superior Court, however, reversed the trial court’s decision in its en banc opinion. The Pennsylvania Superior Court reasoned that although Husqvarna’s business in Philadelphia could be categorized as de minimus, it was nonetheless regular, continuous, and habitual, and therefore sufficient for proper venue. The opinion indicated that trial court must consider several factors when considering appropriate venue and not just a defendant’s business revenue. Two judges on the Pennsylvania Superior Court dissented, saying that the trial court did not abuse its discretion and that the trial court has “considerable discretion” when determining proper venue. Thank you to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Health Insurer's Subrogation Right Survives in New York March 15, 2009 < Back Share to: As medical costs continue to rise, the health insurer's role in personal injury actions is certain to increase. In Fasso v. Doerr, the health insurer intervened in a medical malpractice action to recoup the $780,000 it had paid for plaintiff's medical bills. The Court of Appeals held that a settlement below plaintiff's claimed damages did not extinguish the health care carrier's subrogation claim because there was still available insurance coverage. Further, an agreement between the tortfeasor and injured party cannot extinguish the health carrier's claim without it consent. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01320.htm Previous Next Contact

News NY Court Orders 911 Tape Produced in Fatal LIE Accident Action January 8, 2016 < Back Share to: In Anderson v. State of New York, Arthur William Reece, Jr., drove his vehicle over a traffic counting device on the Long Island Expressway. The device was missing a protective pole, shattered upon contact with the vehicle and punctured the vehicle’s gas tank, sparking a fire. Tragically, Recce and his two children were trapped in the car and died in the fire. The estate administrators for the children killed in the fire commenced a wrongful death action against the State of New York, and served a non-party subpoena on the County of Suffolk, seeking production of certified copies and transcripts of the 911 calls relating to the accident. The County moved to quash the subpoena on the ground that, pursuant to County Law Section 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated agencies and emergency medical providers. The Supreme Court denied the motion, ordering the records to be produced and the County appealed. In an issue of first impression, the Second Department held that the statute is not intended to prohibit disclosure of matter that is material and relevant in civil litigation. Plaintiff argued that the tapes were relevant as to how the accident happened, the length of time the occupants experienced conscious pain and suffering, and the amount of time it took police to respond to the scene. The Second Department agreed that the material was discoverable and affirmed the Supreme Court’s decision. Thanks to Brett Kuller for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News An Arbitrator’s Award In Excess Of Policy Limit Constitutes Grounds For Vacatur (NY) May 6, 2022 < Back Share to: New York Appellate Court holds once an insurer has paid the full monetary limits set forth in its insurance policy, the insurer’s duties to the policyholder under the policy cease. Accordingly, where an arbitrator’s award directs payment in excess of the monetary limit of a policy of insurance, the Appellate Division, First Department has held that the award is subject to vacatur. In Allstate Fire And Casualty Insurance Company v. Branch Medical P.C., 2022 WL 1163074 (1st Dep’t 2022), Petitioner-Respondent Allstate Fire & Casualty Insurance Company (“Allstate”) issued a policy of insurance to an insured that included a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 policy limit for Optional Basic Economic Loss coverage. (the “Policy”). Subsequently, the insured received medical treatment from Respondent-Appellant Branch Medical, P.C. (“Branch Medical”). As such, Branch Medical sought to recoup fees from Allstate and the two parties submitted to arbitration. At the conclusion of the arbitration, the master arbitrator’s award directed payment to Branch Medical in excess of the monetary limit of the Policy. Consequently, Allstate petitioned to have the arbitrator’s award vacated, whereas Branch Medical submitted a cross-motion to confirm the arbitrator’s award. Ultimately, the Civil Court vacated the master arbitrator’s award and denied respondent’s cross-motion, resulting in Branch Medical filing an appeal with the First Department. Upon review of the appeal, the First Department held the arbitrator’s award directing payment in excess of the monetary limit of the Policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award. In essence, Allstate’s submissions of evidence—including the testimony of Allstate’s claims adjustor, policy declarations page, and ledgers listing the dates any claims were received and paid—were deemed sufficient to establish the Policy had been exhausted by payments of no-fault benefits to other health care providers and lost wages to the assignor before Allstate was obligated to pay the claim at issue. Although Branch Medical attempted to assert new arguments throughout the appellate process, the Court noted that it would not consider different theories or new questions that were not presented to the Civil Court. Ultimately, the First Department upheld the Civil Court’s Order that granted the petition of Allstate to vacate the master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Property Owner Is Not Neighbor's Keeper (NY) June 14, 2013 < Back Share to: In order for a plaintiff to maintain a viable claim under the labor law against a property owner, the property owner must own, or at least have some interest in the property where a plaintiff is injured. In Alvarez v Hudson Val. Realty Corp., 23 NY Slip Op 04300, plaintiff commenced an action against Hudson Valley Realty Corp., alleging violations of Labor Law §§§ 240(1), 241(6), and 200. In defense of the matter, Hudson Valley argued that it did not own the property where plaintiff was injured, but rather, was the owner of the abutting property. The Appellate Division, Second Department, upheld the trial court’s ruling, granting Hudson Valley’s motion for summary judgment. The Court held that Hudson Valley demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action asserting violations of Labor Law §§ 240(1) and 241(6) by establishing that it was an abutting property owner with no property interest in the premises upon which the plaintiff was injured, and it neither contracted for nor controlled the construction work on the premises. Further, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 by establishing that it did not own, occupy, or control the premises and that it did not have the authority to supervise or control the manner in which the work was performed. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

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 Pre-Approved Medical Devices Immune From Personal Injury Liability February 26, 2008 < Back Share to: In Riegel v. Medtronic, patient Charles Riegel was injured in 1996 when a balloon catheter burst while being inserted to dilate a coronary artery. Prior to this accident, in 1994, this medical device was awarded premarket approval from the Food and Drug Administration. In affirming the dismissal of plaintiff's state lawsuit, the United States Supreme Court held that medical devices that are approved by the F.D.A. cannot be subject to personal injury lawsuits unless the device was made improperly, in violation of F.D.A. specifications. At the center of this decision was the interpretation of the Medical Device Amendments Act of 1976 that bars states from imposing "any requirement" related to a medical device that is "different from, or in addition to" a federal requirement. http://www.nytimes.com/2008/02/21/washington/21device.html?_r=1&ei=5088&en=e6cfcd2157d5881f&ex=1361336400&adxnnl=1&oref=slogin&partner=rssnyt&emc=rss&adxnnlx=1204027980-HTNIGylhY9c5usXyxbVczg Previous Next Contact