Judge Joseph Leeson of Eastern District of The US District Court dismissed the plaintiff’s complaint where she alleged she fell while walking in the “water aisle” of the defendant’s supermarket having averred she had no medical condition and believed “…that there must have been a substance in the aisle which caused her to fall.” The defendant moved to dismiss the Complaint for failure to state a claim and the court granted the motion with leave to amend the Complaint.

The court pointed out that the only factual allegation regarding a dangerous condition is the averment stating: “as plaintiff has no medical condition, plaintiff believes and avers that there must have been a substance in the aisle which caused her to fall.” Considering that the mere happening of an accident does not give rise to an inference of negligence, the court concluded that plaintiff is asking the court to draw an impermissible inference based on the averment of what “must have been.” As is often the case, the court allowed plaintiff seven days to amend the Complaint to make the sufficient factual pleadings.

The maxim of accepting as true all the allegations in the Complaint, however, is not applicable to legal conclusions. The trial court further noted the law of premises liability wherein the plaintiff must establish a condition that would involve an unreasonable risk of harm to the customer.

The concepts described by the court in this opinion are worth bearing in mind where the plaintiff is asserting a claim based on vague and open-ended descriptions as to how a slip and fall or auto accident occurred. Language like this requires inquiry into the specifics of the event in the pre-litigation context.

Forum non-conveniens motions are hard for a defendant to win. The issue begins with the proposition that a plaintiff’s choice of forum should rarely be disturbed and is entitled to great weight and deference. To overcome this hurdle, the defendant must show that the chosen forum is oppressive or vexatious, not merely inconvenient. However, in Doe v. Bright Horizons Children’s Center, the Superior Court upheld a Philadelphia trial court decision moving a case from Philadelphia to Berks County after defendants filed a forum non-conveniens motion.

The plaintiffs originally filed in Philadelphia on January 16, 2020 alleging that their son suffered sexual abuse perpetrated by the defendants at their daycare center in Reading, Pennsylvania. The daycare center argued that Philadelphia would be oppressive as a venue and provided an affidavit in support of that position. The defendants’ affidavit stated that if four or more staff members had to be at court at the same time, the daycare center would fall below a Pennsylvania mandate for minimum teacher-to-student ratio. Testimony in Philadelphia would require an all-day commitment from the staff whereas a trial in Berks County would be only 10 to 15 minutes from the daycare center. The trial court noted the daycare center’s affidavit that it had 30 employees. Of those 30 employees, nine teachers were named in the Third Amended Complaint and 20 of the teachers worked with the victim of the abuse. Therefore, the court accepted the defendants’ argument that it would take “a dynamic feat of scheduling to comply with the minimum staffing requirement. Also significant to the trial court was that when these events were investigated by the Berks County District Attorney, it required only “a 10-to-15-minute drive” between the courthouse and the daycare center.

The Superior Court opinion does not change the law on forum non conveniens. However, the opinion lays out a roadmap for defendants in trying to obtain a transfer of venue. Clearly, a fact specific affidavit from the defendants is the key point in the motion. It remains to be seen whether this is an isolated case or indicates a trend either in Philadelphia or in the Superior Court.

For any questions or input feel free to reach out to Steve Bruderle at Margolis Edelstein. He can be reached at 215-931-5852 or sbruderle@margolisedelstein.com.

While the plaintiff driver was waiting to make a left turn exit out of a shopping center parking lot onto a main thoroughfare, a helpful defendant about to enter the lot from the roadway, yielded to the plaintiff and waved to her indicating she should proceed to exit onto the street. As the plaintiff entered the roadway her vehicle was struck by another car which had driven around the waving defendant’s car. The plaintiff alleged she relied upon the waving defendant and that the waving defendant was negligent in gesturing she proceed when it was not safe to do so.

In denying the waving defendant’s Motion for Summary Judgment, the Court noted the plaintiff testified she did not look to her left as she entered the roadway as she concluded the waving defendant had indicated it was safe to make the turn. The Court observed this theory of liability is supported by Section 324A of the Restatement Second of Torts (1965) and the case of Askew by Askew v. Zeller. The Restatement and the Askew case hold that a person is negligent for failing to exercise reasonable care, even if the duty was undertaken gratuitously. The decision was rendered on June 24, 2020.

If you have any questions regarding this decision please contact the author, Steve Bruderle, at 215-931-5852 or sbruderle@margolisedelstein.com

 

A private arbitration to assess liability and damages involving a motor vehicle accident was agreed to by counsel for both plaintiff and defendant. After considering the evidence presented, the Arbitrator submitted her “recommendation” and “Arbitration Findings in Support of Recommendation to the parties,” recommending a judgment of $22,500 against the defendants and the case was subsequently marked on the docket “Settled, Discontinued, and End.” The coverage provided to the defendant exceeded the $22,500 figure.

It is critical when defending an uninsured motorist (UIM) claim to determine whether the tortfeasor’s coverage limit has been exhausted. Typically, if the coverage has not been exhausted, the plaintiff was technically not injured by an “uninsured” motorist and the defendant may rely upon this argument. In this instance, a private arbitration took place and ultimately in this case, Marisol Martinez v. Nationwide Insurance Company, the federal court in Philadelphia denied a Motion for Summary Judgment in a UIM case where the case against the tortfeasor had resolved for less than the policy limit after proceeding to private arbitration.

The defendant insurer contended the Award of the Arbitrator, which was less than the tortfeasor’s coverage limit, defeated the UIM claim. The plaintiff argued in response that the Arbitrator provided a settlement “recommendation” which was accepted by the parties and did not prohibit the plaintiff from continuing with an underinsured motorist claim. The defendant’s summary judgment motion was based on the argument that (1) the plaintiff was not injured by an underinsured motor vehicle; and (2) collateral estoppel prevented plaintiff from re-litigating the amount of damages.

The issue for the court in ruling on the summary judgment motion was whether the ADR process resulted in a settlement or whether it was a binding and final judgment. The trial court, in a memorandum opinion, ruled that the “ADR process resulted in a non-binding settlement recommendation, as opposed to a binding judgment.”

The trial court in the UIM case closely examined the language of the Arbitrator’s Award in the case against the tortfeasor. That language made it clear that the Arbitrator was recommending judgment at a specific amount and was not intending to bind the parties. The court concluded that the parties had engaged in a non-binding settlement recommendation and that there existed an issue of fact as to the plaintiff’s damages to be submitted to the jury. The summary judgment motion was denied.

Steve Bruderle may be reached at (215) 931-5852 or sbruderle@margolisedelstein.com for any questions about defending UIM cases.

Handwritten notes made by a defendant on a document in evidence in preparation for deposition are not protected by the privilege extended by the attorney-client relationship or work product. The PA Superior Court ruled on 02/20/20 in the med-mal case Ford-Bey v. Professional Anesthesia Services involving the wrongful death of a patient due to respiratory failure following surgery performed by defendants, that the notes made on a medical chart by the nurse anesthetist named in the suit in preparation for his deposition were not shielded by privilege.

The nurse anesthetist testified at his deposition he made these notes as part of his preparation for deposition. Plaintiff counsel issued supplemental discovery following the deposition seeking the notes but specifically excluding “…. references to mental impressions…” and other presumably privileged information. Counsel for the nurse anesthetist objected contending the request sought information prepared in anticipation of and during the course of litigation and that the information is further protected by the attorney-client privilege and/or work product doctrine. Plaintiff argued that without any evidence that the notes were made at counsel’s request, in counsel’s presence or for purposes of obtaining counsel’s advice, the attorney-client privilege had not attached.  The trial court granted plaintiff’s motion requiring the nurse anesthetist to produce his copy of the chart including the handwritten notes and ultimately the issue was directed to PA Superior Court.

The issue before the Superior Court was whether the nurse anesthetist properly invoked the attorney-client privilege.  The elements of that privilege are (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his subordinates; (3) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter and, not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and is not waived by the client.  If the trial court concludes that the privilege was properly invoked, the burden shifts to the party seeking the disclosure to show either that the privilege has been waived or the information falls into an exception.

The Superior Court noted the trial court’s conclusion that (1) the nurse anesthetist failed to prove that the information in the handwritten notes were communicated or intended to be communicated to his attorney; and (2) that the nurse anesthetist failed to demonstrate that his notes reflected communications from his attorney, therefore, failed to establish the application of the privilege.

The Superior Court agreed with the trial court that without proof that the notes “reflected communications between attorney and client, or that they were intended for that purpose …” the nurse anesthetist failed to properly invoke the attorney-client privilege.  Additionally, the Superior Court ruled that the trial court properly concluded that the work product privilege did not apply and that this privilege belongs to the attorney not the client.

In conclusion, the Superior Court felt that the nurse anesthetist failed to satisfy the element requiring proof that the notes were communicated or intended to be communicated to his attorney or reflected communication from his attorney.  This failure prevented the attorney-client privilege from attaching.  Further, the record did not establish that the notes reflected or contained a counsel’s mental impressions or strategies and, therefore, they are not protected by the work product privilege.

This opinion is not specific to medical malpractice and would apply to any notes made by a party witness on a document in preparation for deposition. Presumably, this opinion could be applied to an insurance claims handler giving testimony in a bad faith case against an insurer. It could be argued that notes made on a copy of the claims file in preparation for deposition in bad faith litigation could be discoverable. Any client should confer with counsel regarding any notes or written documents prepared in the course of litigation.

If you have questions, Steve Bruderle can be reached at (215) 931-5852 and sbruderle@margolisedelstein.com.

The Pennsylvania Supreme Court has held that a provision in an automobile insurance policy requiring an insured who is seeking first party medical benefits to undergo an independent medical examination is void as against public policy. The Pennsylvania Supreme Court ruled on November 20, 2019 that such a requirement in a policy conflicts with 75 Pa. C.S. Section 1796(a) of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). This ruling came as a result of two consolidated cases in which insureds sought PIP benefits but were denied those benefits for failure to appear at the examination which had been demanded by the insurer. In Scott v. Travelers, the insured, William Scott, was involved in an automobile accident and submitted a claim for PIP benefits. When Travelers demanded that he attend an independent medical exam (“IME”) Scott responded by requesting that Travelers submit a list of three doctors whom Scott indicated he would consider allowing to examine him. Travelers did not issue such a list but renewed the request for Scott to undergo an examination. Scott did not attend the examination and was denied the benefits. In Sayles v. Allstate, Samantha Sayles was involved in an automobile accident, received medical treatment and a claim was submitted to Allstate for PIP benefits. Allstate requested that Sayles attend an examination by a physician to be selected by Allstate. Allstate refused to pay the benefits until Ms. Sayles attended the examination. Ms. Sales never underwent the examination and the benefits were denied.

Both claimants argued that policy language requiring an examination when demanded by the insurer directly contradicts Section 1796(a) of the MVFRL which states that “a court of competent jurisdiction… may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and the date of the examination and shall state the manner, conditions and scope of the examination and of the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.”

The Pennsylvania Supreme Court was persuaded by the argument that the policy language and the statutory language are in conflict. The statutory framework was established to provide protection for individuals insured under automobile policies and who seek benefits through those policies. Contractual language which attempts to circumvent those protections are void as against public policy.

Significantly the opinion allows the examination to occur upon agreement of the parties. This opinion only applies where the examination is requested, and the claimant refuses the request. This opinion provides no procedural guidance and opens the door to litigation wherein an insurer goes to court for an order compelling an examination.

If you have any questions please feel free to contact Stephen J. Bruderle, Esquire [Link to firm bio here].

A Pennsylvania Trial Court in Lawrence County entered an Order on October 7, 2019 overruling the Defendant’s Preliminary Objections which sought to strike Plaintiff’s claims for recklessness and/or reckless conduct where the Defendant driver was using a cell phone at the time of the relevant motor vehicle accident. In Daresse Henderson v. Elliot Palmer, Lawrence County Court of Common Pleas No. 10035 of 2019, Ms. Henderson alleged that she was stopped at a traffic light on January 19, 2017 when her vehicle was rear-ended by the vehicle operated by Defendant Palmer. The Plaintiff’s First Amended Complaint, which was at issue in the Preliminary Objections, alleged that the Plaintiff was texting and/or using his cell phone at the time of the impact. The Henderson Court was guided by case law in other jurisdictions which holds that allegations that a driver has been distracted by a cell phone or an electronic device is sufficient to withstand objections at the pleadings stage. The Henderson Court allowed the defense to raise this issue again at the end of discovery if appropriate.

If you have any questions about this you can contact Steve Bruderle at 215-931-5852 or by e-mail at sbruderle@margolisedelstein.com.

A Federal Court recently dismissed a claim for negligent infliction of emotional distress filed by the decedent’s fiancée where the fiancée used a smartphone application to locate the decedent’s cell phone.  The two people had a practice of having the decedent call his fiancée every day when he arrived at work.  When he failed to call her on the date of this fatal accident, the fiancée used a smartphone application which revealed the decedent’s phone was at the scene of the fatal crash.

Noting only certain categories of plaintiffs may recover for negligent infliction of emotional distress, and not addressing whether a fiancée has a sufficient family relationship to assert such a claim, Judge Munley of the US District Court, Middle District of Pennsylvania, granted the defendants’ 12(b)(6) Motion to Dismiss plaintiff’s claim for negligent infliction of emotional distress observing that the plaintiff did not witness the accident and only witnessed the aftermath. While her smartphone indicated that the decedent’s automobile was stopped at the crash site, Judge Munley analogized this fact pattern to a plaintiff who received a phone call from a local hospital indicating that her husband had been injured in an automobile accident.

In Erie Insurance v Bristol, 160 A.3d 123 (Pa. 2017) the Pennsylvania Supreme set forth the statute of limitations in uninsured motorist claims where the policy includes an arbitration clause. The court held held that the statute of limitations commences “upon an alleged breach of a contractual duty, which in this case would be occasioned by the insurer’s denial of coverage or refusal to arbitrate.”  Where the defendant did not refuse arbitration or deny coverage, the cause of action had not yet accrued. The trial court’s granting of summary judgment is reversed and the case remanded.

Philadelphia Attorney Stephen Bruderle speaks at the National Business Institute.  Steve presented on the topic of Defense Tactics Unique to Brain Injury Cases.