Wade Clark Mulcahy LLP

News Can Nurses Opine on Medical Causation? PA's Supreme Court Seems Set to Decide the Issue. December 4, 2009 < Back Share to: In most personal injury cases, an independent medical examination referral is a necessary evil. In low value cases, this can be problematic in that the usual $1,500 cost of an IME (by a doctor) can be worth almost as much as the case itself (especially in Philadelphia’s arbitration court). The nature of the business may, however, be about to change. Earlier this week the PA Supreme Court heard arguments in the case of Freed v. Geisinger Medical Center . At issue in this case is whether a registered nurse can opine on both the standard of nursing care and medical causation under PA's Medical Care Availability and Reduction of Error Act. If the court rules that a registered nurse can opine on medical causation (assuming they otherwise meet the expert standards), there may suddenly be a much larger pool of experts to draw from. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202436044407&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20091204&kw=High%20Court%20Considers%20Scope%20of%20Nurses'%20Testimony%20Again&slreturn=1&hbxlogin=1 Previous Next Contact

News PA Court Vacates $35 Million Award due to Plaintiff's Potential Negligence May 25, 2018 < Back Share to: Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries. In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP). Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million. The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff. As a result, the Superior Court reversed the trial court’s motion for summary judgment and vacated the $35 million verdict. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News "Stalker" Imperils Jury Verdict (NY) November 20, 2013 < Back Share to: A favorable defense verdict is a precious item. It is secured by thorough preparation, a persuasive presentation, favorable facts, and a little luck. The last thing a party wants to see is the verdict overturned because of some unauthorized contact with the jury. Bohn v. Forba took fifteen days to try. The jury returned a unanimous defense verdict and the trial judge, as was her custom, privately thanked them for their service. When she asked if they had any questions, the jurors inquired about the person “stalking” them throughout the trial. The jurors further described him as “creepy” and “seedy” and related that he seemed to follow them in the courthouse elevators, lobby and local restaurants. Some expressed concern that the "stalker" was videotaping them. After one juror observed this person talking to defense counsel and his two clients, the juror concluded that he must be associated with the defense team. The mystery man was, in fact, a partner “in a New York City law firm” who was monitoring the case for the insurer of several defendants and reporting back to his client on issues involving insurance coverage. He later denied any attempts to speak with the jurors and explained that his proximity to them in the courthouse and surrounding restaurants was merely coincidental. After speaking with one of the jurors without the attorneys but on the record, and taking sworn testimony from the coverage attorney in the presence of all counsel, the court concluded that coverage counsel “made improper contact with the jury.” The trial judge believed that he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevators.” Sensing that their favorable jury verdict was in peril, the defense attorneys argued that the court’s ex parte interview of the jury was improper and that if anyone was harmed by the perception of stalking by a suspected defense representative, it was the defendants. On this critical issue, the court held that prejudice would be presumed. It further found that the jurors were likely influenced by the alleged improper conduct, speculating that they may have felt intimidated and compelled to render a defense verdict. In matters involving the jury, the court’s message is clear: keep a wide berth of the jury so that even the appearance of improper contact can never be raised. We suspect that the court’s approach of questioning the jurors outside the presence of trial counsel will become a major issue on appeal since defense counsel was never given the opportunity to explore what prejudice, if any, resulted from the perceived conduct of coverage counsel. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News WCM Victorious in Second Department Appeal Arising Out of a Personal Injury Burn Case February 1, 2013 < Back Share to: New York, NY Counsel Cheryl Fuchs and Associate Gabriel Darwick successfully convinced the Second Department to reverse a Brooklyn trial court decision that denied our client’s motion for summary judgment in a case involving burns allegedly sustained in a bathtub. In Mauskopf v. 1528 Owners Corp., the decedent was found in his bathtub with burns to the left side of his body. The then 95-year old died a month and a half later. There were no witnesses to the accident, but the decedent’s son claimed his father told him he was burned in the bathtub. We represented G. Bauer, Inc., a boiler service company that, upon request, performed repair and maintenance work on the burner of the building and otherwise performed annual Department of Building inspections of the boiler. We moved for summary judgment on the basis that plaintiff could not identify the cause of the decedent ’s injuries without resorting to hearsay or speculation. We also argued, that even if the decedent was burned in the bathtub, G. Bauer did not have a contract with the building to perform routine or systematic maintenance of the boiler, and never performed work on, or inspected the mixing valve that controlled the hot water temperature. The trial court judge denied our motion on the basis that there were “issues of fact”. The alleged "issues of fact" were not identified in the court's order. On appeal, the Second Department reversed the trial court and granted our motion on the basis that G. Bauer owed no duty to the plaintiff, as there was no evidence that G. Bauer’s work involved inspection or maintenance of the mixing valve. Previous Next Contact

News PA Court Holds Instagram Account Discoverable March 30, 2018 < Back Share to: Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content. In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account. Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain. In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation. The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted. The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Defendant’s Motion To Amend Its Answer To Admit Averments It Previously Denied Two Years Previously Includes A Novel Attempt To Avoid Punitive Damages At Trial (PA) November 19, 2021 < Back Share to: A Lackawanna County judge has granted a defendant’s motion to amend his answer to admit averments that he had previously denied when filing the answer more than two years earlier. In Bellersen v. Gill, Plaintiff, Gina Bellersen, was injured in a rear- end, chain collision motor vehicle accident in October 2018. Defendant Gill was the last vehicle in the chain, and upon filing his initial answer in October 2019, Gill admitted the accident, but specifically denied that he “operated his vehicle in a negligent, careless, and reckless manner.” Two years later, Gill moved to amend his answer paragraphs 17, 18, 31, and 320 of the Complaint “to admit that his failure to use due care while driving his vehicle … caused him to rear-end the vehicle in front of him, which in turn caused that vehicle to rear-end the vehicle [Bellersen] was driving, and further caused the front of [her] vehicle to hit the vehicle in front of her.” Gill also requested that the Order granting his motion to amend expressly state that his admissions to paragraphs 17, 18, 31, and 32 “shall not be used as an admission of any type of conduct which could serve as a basis for imposition of punitive or exemplary damages.” Apparently, given that Gill had started a chain-reaction collision, he hoped that conceding negligence might preclude the need for raising that issue a trial and thereby avoid the potential for punitive or exemplary damages. Plaintiff opposed the motion to amend as untimely and objected to the inclusion of “unnecessary and prejudicial language” in the proposed Order. Judge Terrence R. Nealon rejected the untimeliness argument, noting that Rule 1033 imposed no time limit on amendments of a pleading. The prejudice sufficient to deny amendment of the pleadings must be more than an mere detriment to the other party. A delay of two years in seeking to amend a pleading, without more, does not furnish a sufficient basis for denying a motion to amend. Although Judge Nealon granted Gill’s motion to amend, he held that the request that Plaintiff be foreclosed from making any evidentiary use of those admissions in support of her punitive damages claim was not an appropriate consideration in seeking leave to amend under Rule 1033. Instead, the preclusion of evidence at trial is a proper subject for a motion in limine addressed to the trial judge. Interestingly, although Judge Nealon refused to add the language requested by Defendant Gill, he did append a footnote to clarify that only factual admissions are treated as binding judicial admissions on a party. Factual admissions by Gill that he failed “to brake his vehicle,” “keep his eye on the roadway,” “inspect the vehicle,” “record his duty status,” and “stop for traffic ahead” and that he was speeding, texting, “using a cellular phone without a Bluetooth or hands-free device,” and fell “asleep while driving,” would constitute judicial admissions.. However, legal conclusions, such as his alleged negligence, carelessness, and recklessness, would not qualify as judicial admissions. The import of this case is that a party may amended its pleadings at nearly any time during the pleadings with the consent of the other party or leave of court. The right to amend should be freely granted absent an error of law or resulting prejudice. The “resulting prejudice . . . must be something more than a detriment to the other party since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.” Thanks to Jim Scott for his contribution to this article. Should you have any questions concerning this case, please contact Thomas Bracken. Previous Next Contact

News Common Sense Prevails in PA Appellate Division? How Unusual! May 7, 2010 < Back Share to: It seems simple enough. If a plaintiff alleges that the defendant's actions caused mental health issues, then the defendant should have access to plaintiff mental health records that predate the incident. After all, without such records, how can a baseline for damages be established? Surprisingly, achieving access to such records, has not been the norm in Pennsylvania. However, a new appellate decision bodes favorably for defendants. In Gormley v. Edgar, the plaintiff was injured in an automobile accident. She alleged that the accident caused her mental injuries. However, when the defendant asked for relevant pre-accident records, she refused and objected to defendant's subpoena. The trial court rejected the objections and authorized the disclosure. Plaintiff appealed. The Superior Court has now affirmed the trial court's order. Applying common sense, it held that by putting her mental health at issue, the plaintiff had subjected herself to full disclosure. Common sense reigns supreme in the Commonwealth. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Mental Health.pdf Previous Next Contact

News New Jersey Appellate Division Upholds Dismissal of Plaintiff’s Eye Injury Claim March 20, 2018 < Back Share to: In Piper v. The Cheesecake Factory, plaintiff alleged her eye was injured by a fragment from a shattered plate when a restaurant server dropped the plate six feet from the booth where plaintiff was sitting. The matter went to trial. The trial judge dismissed plaintiff’s complaint with prejudice finding that her medical expert’s report was net opinion. The court noted that no doctors’ records showed the presence of a foreign object in her eye or a corneal abrasion. Plaintiff was treated by her eye doctor for what was diagnosed as pre-existing blepharitis. She also consulted other ophthalmologists, one of whom testified as her expert and concluded that if a foreign body hit her eye, it might have contributed to her symptoms. Defendants’ medical expert found no signs of trauma or injury to her cornea. The Appellate Division agreed with the trial court that no medically sound evidence established a causal link between plaintiff’s alleged trauma and reported symptoms. This case highlights how close scrutiny of an adversary’s medical expert report can lead to a dismissal of the adversary’s claim. Thanks to Michael Noblett for his contribution to this post.         Previous Next Contact

News Homeowner Escapes Labor Law Liability for Contractor's Ladder Fall (NY) January 26, 2017 < Back Share to: Homeowners are free from liability under common law negligence, as well as under Labor Law §§§ 200, 240(1) and 241(6), to a contractor performing work at their residence where their general awareness of the state of the premises is insufficient to impute notice of an unsafe condition and where they did not direct or control the manner in which the plaintiff performed his work, create the allegedly dangerous condition that caused the accident, or provide the plaintiff with any of his materials or equipment. In Dasilva v Nussdorf , the plaintiff was allegedly injured when he fell from a ladder while painting a cottage located on the defendants' 16-acre residential estate. The cottage had formerly served as the estate caretaker’s residence and following his departure, was being renovated by the homeowners, who had hired the company that employed plaintiff. Plaintiff testified that the ground on which the ladder was placed was uneven, soft, and filled with debris as a result of ongoing landscaping. The ladder, which plaintiff erroneously believed was owned by defendants, sunk into the ground, causing him to fall. The lower court granted the summary judgment motion of defendants, dismissing plaintiff’s complaint which alleged violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. The court found that the exemption under the Labor Law §§ 240(1) and 241(6) for owners of single and two family houses applied in this instance where the homeowners established that the work being performed directly related to the residential use of the cottage and that they did not direct or control plaintiff’s work. The court also found that dismissal of the claims pursuant to common law negligence and Labor Law § 200 ( statutory version of the common law duty of an owner to provide employees with a safe place to work ) was appropriate where the homeowners also demonstrated that they did not create the alleged dangerous conditions or have actual or constructive notice of such conditions because they did not own the ladder or provide plaintiff with any of his materials or equipment. With respect to the allegedly uneven and soft ground filled with debris, the defendants established that they did not create the condition and although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition. The Appellate Division, Second Department agreed with the ruling of the Supreme Court and accordingly, affirmed its decision regarding the dismissal of plaintiff’s complaint. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Bronx Jury's Verdict Underscores the Value of Independent Medical Examinations (NY) October 4, 2018 < Back Share to: In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages. In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan's FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff's motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had "sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff's injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court's instruction, defendant's expert had failed to find any objective evidence of injury to plaintiff's neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities. After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff's evidence as to her pain and suffering was "not compelling," and that a jury could reasonably have found that plaintiff's claims were inconsistent with the objective medical findings of defendant's expert orthopedic surgeon. The court found that plaintiff's counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury's verdict was inconsistent when counsel failed to object to the contents of the jury's verdict sheet during the charge conference. Had it not been for the defense's expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact