The Tort Talk 2021 Civil Litigation Update

THE TORT TALK

2021

CIVIL LITIGATION UPDATE

DANIEL E. CUMMINS, ESQ. CUMMINS LAW 610 Morgan Highway Clarks Summit, PA 18411 P. (570) 319-5899 F. (570) 319-5898 E. [email protected]

Firm Website: www.CumminsLaw.net

DEFENDING CASES IN ALL OF THE COUNTIES THAT MAKE UP THE NORTHEASTERN CORNER OF PENNSYLVANIA

www.CumminsLaw.net

Email: [email protected]

(570) 319-5899

NEED HELP BRINGING YOUR CASE TO A CLOSE? PLEASE CONSIDER CALLING UPON:

Website: Cummins Mediation Services

Email: [email protected] 570-319-5899

TABLE OF CONTENTS

PLEADINGS 8

DISCOVERY ISSUES 16

TRIAL PROCEDURE 18

POST-KOKEN UPDATE 22

AUTO LAW UPDATE 24

PREMISES LIABILITY UPDATE 35

MEDICAL MALPRACTICE 42

Daniel E. Cummins, Esq.

Email: [email protected] Phone: (570)-319-5899

Cummins Law 610 Morgan Highway Clarks Summit, PA 18411

Daniel E. Cummins, Esquire is the founder of the Clarks Summit, Pennsylvania law firm of Cummins Law, a law firm he opened with his nearly 25 years of experience in insurance defense litigation. His practice centers around defending against automobile accident claims and premises liability cases along with the defense of products liability and medical malpractice matters. Attorney Cummins also handles insurance coverage and insurance subrogation claims as well.

Attorney Cummins also serves as a Mediator and helps litigants bring their matters to a close through Cummins Mediation Services.

Attorney Cummins has been granted an AV rating by Martindale-Hubbard, which is the highest rating possible in that directory's peer review system for lawyers. Since 2015, Attorney Cummins has also been the only attorney in northeastern Pennsylvania to annually be selected in the Best Lawyers in America Directory under the categories of attorneys who practice Personal Injury-Defense law.

Attorney Cummins is a graduate of Villanova University ('90, B.A., cum laude, English) and The Dickinson School of Law ('93, J.D.). He completed his law school studies at the University of London, Faculty of Laws in London, England.

After graduating from law school, Mr. Cummins served as the Senior Law Clerk for the Honorable Harold A. Thomson, Jr. in the Pike County Court of Common Pleas. After the completion of his two year clerkship, Attorney Cummins went into private practice in 1997, practicing ever since in the insurance defense field.

In September of 2005, Attorney Cummins was recognized and honored by the American Law Media as a "Lawyer on the Fast Track." To date, he remains one of only four attorneys from Northeastern Pennsylvania to ever have been so recognized. This recognition was given to attorneys who have exhibited excellence in advocacy, advancement of the law, community service and service to the bar.

More recently, Attorney Cummins was also recognized in the Super Lawyers—Rising Stars edition of the Philadelphia Magazine as one of the top young attorneys in Pennsylvania. Thereafter, beginning in 2015, he has been listed as a Super Lawyer by the same publication every year.

In 2014, Mr. Cummins was awarded the "Distinguished Defense Counsel of the Year" honor by the Pennsylvania Defense Institute for excellence in defense litigation and service to the defense bar.

In addition to being an insurance defense litigator, Attorney Cummins also serves as a frequently contributing columnist with the Pennsylvania Law Weekly and other publications covering emerging trends in civil litigation in the Commonwealth of Pennsylvania. In the years 2006, 2007, 2010, 2011, and 2012, articles of his went on to secure First and/or Second Place Awards in the Weekly Newspaper Category of the

6 annual Schnader Print Media Awards. Over the course of his career, Cummins has published over 150 articles in newspapers, magazines, scholarly publications, and law reviews both inside and outside of Pennsylvania.

In 2010, Attorney Cummins was hired by the George T. Bisel, Inc. publishing company to be the writer of the annual Supplement to the Pennsylvania Trial Advocacy Handbook and continued in that capacity through 2012.

Attorney Cummins is also the sole creator and writer of an award-winning legal blog entitled "Tort Talk" which can be viewed at www.TortTalk.com. The blog, which was created over a decade ago in May of 2009, is designed to provide updates on important cases and trends in Pennsylvania civil litigation law. The Tort Talk blog has been selected and honored by both the ABA Law Journal and LexisNexis as one of the Top Insurance Law Blogs, as well as one of the Top Tort Law Blogs in the entire United States.

Readers of the blog may provide their email addresses in the box in the upper right- hand corner of the blog if they wish to become an email subscriber and receive notification of the periodic updates posted.

Attorney Cummins has created and presented nearly 50 CLE seminars over the years on a wide variety of civil litigation topics and practice tips.

Mr. Cummins is an active member of the Pennsylvania Bar Association, the Lackawanna County Bar Association, the Luzerne County Bar Association, the Monroe County Bar Association, and the Pike County Bar Association. He is also a former member of the Defense Research Institution (DRI) and a former member of the Claims and Litigation Management Alliance (CLM), both of which are national organizations of defense counsel and insurance professionals. Attorney Cummins is also a former board member of the Northeastern Pennsylvania Trial Lawyers Association.

He is also a former Board Member and former Vice President of the North for the Pennsylvania Defense Institution (PDI), a statewide group of insurance defense counsel and professionals. He has also been a former Co-Chairperson of the Auto Law Committee of the PDI.

Attorney Cummins resides in Newton-Ransom, Pennsylvania with his wife and three sons.

PLEADINGS

Drafting a Complaint

In the case of Greene v. Pennsylvania Power Co., No. 10336 of 2020, C.A. (C.P. Lawr. Co. Oct. 29, 2020 Hodge, J.), the court overruled the Defendant’s Preliminary Objections attacking a Plaintiff’s negligence Complaint primarily under arguments of a lack of sufficient specificity on the elements of a causation of negligence.

According to the Opinion, the decedent died as a result of an accident that occurred when he reported to work as a bus driver and was assigned to drive an empty bus for a practice run. As the decedent rounded a curve on the roadway, his side mirror sideswiped a utility pole near the edge of the roadway. That impact allegedly caused several high voltage wires to fall to the ground and onto the bus. The decedent suffered severe burns from an electrocution and died the same day.

A lawsuit was filed on behalf of the decedent claiming negligence against the companies responsible for the power lines.

The Defendants filed Preliminary Objections challenging the sufficient of the allegations in the Plaintiff’s Complaint.

The court ruled that while Pa. R.C.P. 1028(a)(4) does set a high bar of what must be alleged in a Complaint in order to allow a Complaint to proceed, the rule does not require “a tell-all chronicle verbosely stuffed with details” or an exhaustive inventory of the evidence underlying the claim presented.

The court found that the allegations in this Complaint were sufficient to enable the Defendants to prepare their defense to the claim presented.

The Complaint outlined the identity of the Defendants and asserted that those Defendants owned, operated and maintained the subject utility pole and that the Defendant’s breached their duty of care to maintain them safely. The Complaint also described a number of ways in which the Defendants allegedly deviated from that duty, including the placement of the pole near the roadway and in an unsafe condition.

The court also rejected the Defendants’ objections to the Complaint based upon the case of Connor v. Allegheny Hospital. After reviewing the Plaintiff’s Complaint in detail, the court did not find any vaguely worded, catch all allegations. As such, the Preliminary Objections were denied in this regard as well.

Drafting a Complaint

In the case of T.D.A.P. v. Lawrence County Soc. Serv., Inc., No. 10071 of 2020, C.A. (C.P. Lawr. Co. Oct. 7, 2020 Hodge, J.), the court overruled a Defendant’s Preliminary Objections asserted against a premises liability Complaint filed by the Plaintiff.

According to the Opinion, the Plaintiff’s child was enrolled at an early learning center. The child was at the center and under the care of the Defendant when he was injured in the facility’s gymnasium.

The Plaintiff filed a personal injury lawsuit and the Defendant responded with Preliminary Objections alleging that the Plaintiffs were not sufficiently specific. The defense asserted that it could not prepare an adequate defense because the Complaint did not provide enough facts regarding how the minor Plaintiff fell, how the fall led to his alleged injuries, or how the Defendant’s conduct contributed to those injuries.

The Plaintiff responded by asserting that the Complaint did contain enough facts in this regard.

After reviewing the Complaint, the court found that the Complaint alleged that the Defendant, as the operator of a daycare center, had the duty to supervise children under its care and to protect them from harm. The Plaintiff had also alleged that the child was on the premises as a registered student in the Defendant’s program when the incident occurred. It was additionally noted that the Plaintiff had alleged that the Defendants failed to provide adequate supervision to ensure that the child was not injured. The court also found that the

9 causal relationship between the Defendant’s alleged conduct and the child’s injuries was easily implied from the facts presented. It was also noted that the Plaintiff’s Complaint gave details about the child’s injuries and the various treatments provided.

The court rejected the Defendant’s argument that the Complaint should have provided more details about the fall down event, such as, how it occurred, what activity immediately preceded it, and what the Defendant’s staff members were doing at the time.

The court noted that such a level of detail was not required in the Complaint. Rather, the Complaint contained all of the facts necessary to support the elements of a negligence claim and that the parties could use the discovery process to discover additional information.

Based on these rulings, the Defendant’s Preliminary Objections were overruled.

Drafting a Complaint

In the case of Kleinhans v. John Doe and Chubb Limited Ins. Co., et.al., No. CV-20-0678 (C.P. Lycoming Co. Oct. 2, 2020 Tyra, J.), the court addressed Preliminary Objections filed by an insurance carrier in a hit and run uninsured motorist case.

According to the Opinion, the Plaintiff’s wife was finishing checking out in a retail store while the Plaintiff-husband went out to get the couple’s vehicle. When the wife came out of the store, she saw her husband laying on the ground surrounded by a puddle of blood. A bystander had already called 911 and the Plaintiff was taken to hospital by ambulance. The identity of the driver who allegedly struck the Plaintiff was never discovered and, according to the Opinion, the Plaintiff did not have any memory of the details of the accident.

The Plaintiff filed an uninsured motorist claim. The carrier filed Preliminary Objections to the Plaintiff’s claim for breach of contract, uninsured motorist benefits, medical payments, bad faith, and under the Unfair Trade Practices and Consumer Protection Law.

In part, the court rejected the UM carrier’s assertion that the Plaintiff’s Complaint failed in that the Plaintiff neglected to attach a copy of the police report to his Complaint. The court noted that, in uninsured motorist cases, Pennsylvania law requires that in order for the claim to proceed, the injured party must report the accident to the police or a proper governmental

10 authority and notify his carrier within thirty (30) days of the accident, or as soon as practicably thereafter. See 75 Pa. C.S.A. §1702.

The court emphasized that the statute only requires that the Plaintiff report the accident to the police or another governmental agency as well as his carrier. There is no requirement in that statute that a police report be attached to the Complaint.

The court otherwise denied the Defendant carrier’s Preliminary Objections to the Plaintiff’s Unfair Trade Practices and Consumer Protection Law claims. After reviewing Pennsylvania law on the requirements of this type of claim, the court found that the Plaintiff only generally pled the claim and provided only legal conclusions as to the Defendant’s conduct and the Plaintiff’s reliance upon this conduct. As such, the court granted these Preliminary Objections but allowed the Plaintiff the right to amend the Complaint.

With respect to the Defendant’s assertion that the Plaintiff failed to attach a copy of the insurance policy to this Complaint which allege, in part, a breach of contract, the court found that the Plaintiff was required to do so. As such, these Preliminary Objections were granted but the Plaintiff was allowed the right to file an Amended Complaint with a copy of the insurance policy attached.

Pleading a New Matter

In the case of Barnes v. Williamsport Petroleum, Inc., No. 20-0092 (C.P. Lycoming Co. Oct. 22, 2020 Linhardt, J.), the court sustained a Plaintiffs’ Preliminary Objections asserted against a Defendant’s affirmative defenses listed in a New Matter as such defenses were pled without any factual support.

The court allowed the Defendants to file an amended pleading to contain factual allegations rather than a boilerplate listing of defenses in the New Matter.

This matter arose out of a slip and fall event.

The court agreed with the Plaintiff’s argument that facts were required to support New Matter defenses and that it would be inequitable to put the burden on the Plaintiff to conduct discovery to disprove a factually unsupported allegations, rather than requiring a Defendant to put forth some facts in the first place to support the defenses asserted.

Opening a Default Judgment

Entrance to Monroe County Courthouse

Stroudsburg, PA

In the case of Yasdiman v. Watson, No. 3652-CV-2019 (C.P. Monroe Co. Oct. 13, 2020 Williamson, J.), the court granted a Defendant’s Petition to Open a Default Judgment.

The court reviewed the general requirements of the opening of a default judgment which included a timely filed petition, a reasonable explanation or excuse for the delay that resulted in the entry of a default judgment, and the presentation of a responsive pleading setting forth a meritorious defense.

The court emphasized that, under Pa. R.C.P. 237.3(a)(2), there is no need to meet the first two (2) requirements if the Petition to Open was filed within the first ten (10) days after the entry of the judgment.

In this matter, the Plaintiff filed a Praecipe for a Default Judgment on March 9, 2020. However, the Prothonotary did not enter the judgment and mail notice to the parties until March 13, 2020.

The Defendants filed the Answer and New Matter on March 12, 2020, which would have been the day before the Prothonotary entered the judgment on the docket and mailed out a notice of the same to the parties.

The Defendants filed a Petition to Strike or Open the Judgment on March 23, 2020, which would have been the tenth day after the Prothonotary had entered the judgment on the docket and mailed out the notices to the parties, but would have been more than ten (10) days after the date the Plaintiff actually filed the Praecipe for Default Judgment.

The court noted that the Defendant’s Petition to Open or Strike was filed on the tenth day filing the entry of default judgment. As such, the court applied Pa. R.C.P. 237.3(a)(2) and held that the Defendants only had to provide a responsive pleading with the meritorious defense to open the judgment. The court reviewed the Answer and New Matter that was filed and noted several possible defenses, including assumption of the risk, lack of causation, and the statute of limitations. As the court found that the Defendants’ pleading was sufficient to meet the requirements of the rule, the Motion to Open was granted.

Judge Williamson went on to note that, even if the judgment was deemed to be filed on March 9, 2020, the court found that the Defendant still met all three (3) elements of the requirements to support the opening of a default judgment.

Since the Petition to Open was granted, the court did not address whether the judgment should be stricken as was also requested by the defense.

Standards for Motion for Reconsideration

In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Dec. 4, 2020 Nealon, J.), the court denied a Plaintiff’s Motion for Reconsideration of a Partial Summary Judgment entered in favor of the Defendant insurance company on the bad faith claim.

This latest decision is notable for Judge Nealon’s recitation of the standard of review for a Motion for Reconsideration.

Judge Terrence R. Nealon

Lackawanna County

The court noted that a Motion for Reconsideration is subject to the sound discretion of the trial court judge. Under 42 Pa. C.S.A. §5505, a trial court may reconsider one of its earlier Orders only if the Motion for Reconsideration is filed within thirty (30) days of the entry of the disputed Order.

Judge Nealon also noted that, to be granted, a Motion for Reconsideration generally requires an intervening change in the law, newly discovered evidence, or a clear error of law.

The court found no support for the Plaintiff’s Motion for Reconsideration in this case.

DISCOVERY ISSUES

Responding to Requests for Admissions

To Admit or Deny?

In the case of Loughery v. Mid-Century Ins. Co., No. 2:19-CV-00383-WSH (W.D. Pa. Oct. 13, 2020 Hardy, J.), the court addressed a Defendant’s Motion to Strike Objections and have its Requests for Admissions addressed to the Plaintiff deemed admitted. The court granted the motion in part and denied it in part.

In his Opinion, Judge W. Scott Hardy of the United States District Court for the Western District of Pennsylvania provided the current status of the law pertaining to Requests for Admissions and responses thereto under Federal Rule of Civil Procedure 36.

In his Opinion, the court provided the excellent advice that the “substance of the requests themselves should contain statement of fact that are simple and concise so that they can be denied or admitted with minimal need for explanation or qualifications, and be answered yes, no, the answerer does not know, or a very simple and direct explanation given as to why an answer cannot be supplied such as when a privilege is invoked.” See Op. at p. 2. [citations omitted].

The court also noted that “[a] denial is a perfectly reasonable response when it an issuing dispute is requested to be admitted.” See Op. at p. 2. [citations omitted].

The court additionally noted that “an answer may be qualified if the request posits a statement that contains some truth but conveys unwarranted and unfair inferences when standing alone and out of context of the whole truth". See Op. at p. 3. [citations omitted].

The court additionally stated that, “while the responding party may qualify a response when a request contains a statement that is only partially true, the responding party may not make ‘disingenuous, hair-splinting distinctions whose unarticulated goal is to unfairly burden an opposing party.’” See Op. at p. 3. [citations omitted].

The court additionally noted that, once a responding party answers or objects, the requesting party may seek a judicial determination as to the appropriateness of the responses produced by the answering party.

Judge Hardy noted that, in evaluating the answers and objections to a Request for Admission, the court shoulder consider (1) whether the denial fairly meets the substance of the request; (2) whether good faith requires that the denial be qualified; and (3) whether any ‘qualification’ which has been supplied is a good faith qualification.” See Op. at p. 3 [citations omitted].

As noted, the court in this matter granted the Motion and denied the Motion in part.

GENERAL LITIGATION ISSUES

Scope of a Release

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment.

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart.

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00.

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver.

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

Attorney Malpractice

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable to a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule.

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time- barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable

19 statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

Attorney’s Fees

In the case of King v. Alpha Sigma Tau Nat’l Found. Inc., No. $:20-CV-00778 (M.D. Pa. Dec. 1, 2020 Brann, J.), the court ruled that 28 U.S.C. §1447(c) allowed the Plaintiffs to recover attorney’s fees in a federal court action even when the Plaintiffs were represented on a contingency.

The court awarded attorney’s fees to the Plaintiff after remanding a case to the state court that the Defendants were found to have improperly removed to the federal court.

This matter arose out of allegations that the Plaintiff’s college age son died during a fraternity rush party.

The court rejected the Defendant’s argument that the language of the statute limited attorney’s fee awards to only those fees that were actually incurred by a party. The Defendants had argued that, since none of the fees were technically charged to the Plaintiff, who was represented on a contingency, the Plaintiff was excluded from recovering any attorney’s fees under the statute. As noted, the court disagreed and pointed to other circuit court decisions allowing Plaintiff to recover attorney’s fees even when they were represented on a contingency.

Notably, the court also reviewed other decisions within the Middle District of Pennsylvania and came to a determination that the reasonable hourly rate for an attorney in this forum,

20 and more particularly in the Williamsport, Pennsylvania area, range from $180.00 to $325.00 per hour, depending upon the skill, expertise, and experience of the attorney working on the case at hand.

In the end, $11,377.75 in attorney’s fees was awarded, as well as additional compensation for money spent on an expert.

POST-KOKEN UPDATE

Bifurcation and Stay of Bad Faith Claim

In the case of Gramaglia-Parent v. Travelers Home & Marine Ins. Co., No. 20-3480 (E.D. Pa. Dec. 22, 2020 Rice, M.J.) (Mem. Op.), the court granted a Motion by the Defendant insurance company to bifurcate the Plaintiff’s breach of contract and bad faith claims regarding coverage for injuries in an automobile accident.

The court additionally found that trying the breach of contract claim first would result in efficiency and judicial economy.

The court additionally stayed any discovery under bad faith claim.

The court reasoned that trying the breach of contract claim before the bad faith claim would narrow the issues to be decided in the bad faith matter.

As stated, the Motion to Bifurcate was granted to further the interests of judicial economy.

Bifurcation of Trial

The court additionally found that trying the breach of contract claim first would result in efficiency and judicial economy.

The court additionally stayed any discovery under bad faith claim.

The court reasoned that trying the breach of contract claim before the bad faith claim would narrow the issues to be decided in the bad faith matter.

As stated, the Motion to Bifurcate was granted to further the interests of judicial economy.

AUTO LAW UPDATE

Bad Faith - Statute of Limitations

In the case of McAteer v. State Farm Ins. Co., No. CV-20-101 (E.D. Pa. Nov. 23, 2020 Goldberg, J.), the court granted a Motion to Dismiss a UIM bad faith claim but allowed the Plaintiff the right to file an Amended Complaint. In so ruling, the court addressed statute of limitations issues.

The two year statute of limitations for 42 Pa.C.S.A. Section 8371 bad faith claims was reaffirmed by the court.

The court generally noted that the claim arises when the Plaintiff is harmed and not when the precise amount or extent of damages is determined. The court also noted that a bad faith claim can accrue when a carrier definitively denies coverage.

The court also confirmed that a Plaintiff cannot avoid the statute of limitations period by asserting that a continuing refusal to cover a claim was another, separate act of bad faith. The court additionally noted that repeated or continuing denials of coverage do not constitute separate acts of bad faith that give rise to a new statutory period.

Applying this law to the case presented, the court found that the Plaintiff’s claim for statutory bad faith under 42 Pa.C.S.A. Section 8371was barred by the statute of limitations.

Bad Faith - Difference of Opinion on Value

In the case of Satterfield v. Geico, No. 20-1400 (E.D. Pa. Dec. 8, 2020 Bratter, J.), the Eastern District Federal Court dismissed a bad faith action after confirming the well-settled law that a difference of opinion as to the value of a UIM claim, in and of itself, does not amount to bad faith.

In this matter, the court found that the Complaint lacked the particularity required to state a claim for bad faith and, given that only conclusory allegations of bad faith were pled, the Complaint was dismissed.

The Plaintiff was allowed to file an Amended Complaint that more specifically identified the carrier’s allegedly unreasonable conduct.

Household Exclusions

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. January 13, 2020 Kunselman, J., King, J., Colins, J.)(Non-precedential)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

Household Exclusion

Stacking Cars and Bikes

The debate on the effect of the Pennsylvania Supreme Court's decision in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), continues on.

This question was most recently addressed by a panel of Pennsylvania Superior Court Judges in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.).

In Petrie, the Pennsylvania Superior Court held that the carrier improperly denied a UIM claim of an insured who had rejected stacking on two separate policies with two different companies and, in so ruling, credited Gallagher v. GEICO with widespread effect.

According to the Opinion, the Plaintiff was fatally injured in an accident while he was riding a motorcycle.

Relative to the UIM claims, the Plaintiff had recovered UIM benefits under a policy issued to him by Foremost Insurance for the motorcycle. At the time, the Plaintiff also had another policy in the household with Erie Insurance that covered four other vehicles in the household, unstacked.

In addition to Erie having secured a rejection of stacking from the insured, the Erie policy also contained a Household Exclusion. The Household Exclusion relieved Erie of having to provide UIM benefits relative to any accident that occurred where the insured was in another vehicle of the household that was not insured by Erie Insurance.

Erie asserted that the executed rejection of stacking precluded the Plaintiff’s efforts at inter- policy stacking between the Erie policies and the Foremost policy that covered the motorcycle.

Erie filed this Declaratory Judgment action and filed a motion for judgment on the pleadings. The trial court granted the motion and the Plaintiff appealed. As noted, with its decision the Superior Court reversed and remanded the case for further proceedings.

The Pennsylvania Superior Court found that the waiver of inter-policy stacking was ineffective under Craley v. State Farm Fire & Cas. Co., 895 A.2d 530 (Pa. 2006). More specifically, the Superior Court, relying upon a footnote in Craley which the carrier in this matter asserted was dicta, agreed with the Plaintiff that the waiver form did not clearly put the insured on notice that he was waiving inter-policy stacking at the time he purchased insurance. The Plaintiff had argued in this matter that the waiver form only referenced a “policy” and not “policies” and that the Plaintiff was, therefore, not put on clear notice that the waiver of stacking would also apply to policies issued by other companies.

The Superior Court also ruled that the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO which invalidated the household exclusion is not limited to its facts. The Superior Court in this Petrie case also held that the Household Exclusion was invalid as a de facto waiver of stacked coverage when Pennsylvania law required that carriers secure written waivers or rejections of stacked coverage from its insureds. As such, the Superior Court judges weighing in on this case took the view that Gallagher v. GEICO was not limited to its facts which involved the same carrier issuing both policies at issue in that case.

In footnote 7 in this Petrie decision, the Pennsylvania Superior Court noted that the Pennsylvania Supreme Court is addressing the Craley issue in the case of Donovan v. State Farm but that the Superior Court was required to decide this Petrie case based upon the law at present.

In the end, the Superior Court reversed the trial court’s granting of a motion for judgment on the pleadings in favor of the carrier and remanded the case for further proceedings.

Stacking Issues

In the case of Thiry v. LM General Ins. Co., No. GD18-0143 (C.P. Allegh. Co. Dec. 30, 2020 Connolly, J.), the court addressed issues with respect to UIM stacking.

According to the Opinion, the Plaintiff’s father purchased automobile insurance coverage from the carrier in 2012 and, as part of the application process, signed appropriate UM/UIM coverage forms. As part of the forms executed, the Plaintiff’s father waived stacked limits of UIM coverage for himself and members of his household. At that time, three (3) vehicles were insured under the policy.

That policy was renewed for the three (3) original vehicles on two (2) subsequent occasions. Non-stacking endorsements were issued at each renewal.

Then, in March of 2015, the family purchased a fourth vehicle that was added to the policy. An amended Declarations page was issued listing four (4) vehicles, as well as an identification card for the new vehicle. However, no other paperwork was issued at that time.

The policy, which now covered four (4) vehicles was again renewed in September of 2015.

Almost a year later, in August of 2016, the Plaintiff was involved in a motor vehicle accident while riding as a passenger in a U-Haul vehicle being driven by a friend.

The Plaintiff collected the liability limits of the driver’s personal policy and the UIM limits from the U-Haul’s insurer.

The Plaintiff then sought UIM coverage from the Defendant carrier in this matter, arguing that he was a resident relative under his father’s policy.

The UIM carrier that provided coverage under the father’s policy paid the Plaintiff the non- stacked UIM limits of $250,000.00 but refused to agree to stacked coverage for the other remaining three (3) vehicles under that policy.

The Plaintiff filed this coverage action, claiming that he was entitled to stacked UIM coverage because the addition of the fourth vehicle on the policy represented a new purchase of insurance and that, therefore, a new waiver of stacking was required in order for the carrier to take the position it was asserting in this matter.

After his analysis of the facts and the current status of Pennsylvania law, the court ruled that the policy should be read to provide stacked limits on all four (4) vehicles, thereby entitling the Plaintiff to pursue additional UIM benefits under the policy. In so ruling, this court reviewed the appellate court’s decisions in Sackett I, Sackett II, and Sackett III.

The court ruled that, under these Sackett decisions and other on point state court decision compel the conclusion that a new stacking waiver was required under the facts presented in this case. As such, the court found that the Plaintiff was entitled to stacked UIM benefits under the policy in question.

Reformation of UIM Policy

In the case of Matthews v. Erie Insurance Group, 2021 Pa. Super. 6 (Pa. Super. Jan. 12, 2021 Bender, P.J.E., Lazarus, J., and Stevens, P.J.E.) (Op. by Bender, P.J.E.), the court addressed issues of venue in a UIM case.

According to the Opinion, the Plaintiff was injured in a motor vehicle accident while operating a vehicle insured by the carrier under a policy issued to a construction company.

The injured party filed suit for UIM coverage under the Erie policy under an argument that the construction company had never validly rejected UIM coverage.

The carrier filed Preliminary Objections to venue seeking to transfer the case from Philadelphia County to Bucks County. Those Preliminary Objections were sustained in the trial court and the case was transferred.

The trial court had ruled that the reformation of the insurance policy to provide UIM coverage must also include the forum selection clause that would have accompanied the policy if it had been properly issued.

On appeal, the injured party argued that Erie should not be entitled to a forum selection clause that was not included in the original policy and which had been reformed by the court. The injured party attempted to argue that the reformation should only be with respect to a provision of UIM benefits and should not be expanded to include additional contract provisions such as a forum selection clause.

The Pennsylvania Superior Court rejected the injured party’s argument and affirmed the trial court’s Order. The appellate court agreed with the carrier’s position that the injured party’s position would afford greater rights to those insureds that did not select UIM coverage as compared to those customers who did select UIM coverage and, therefore, would be subject to the forum selection clause in the carrier’s UIM coverage provisions.

The court further found that, if the injured party argues that he is entitled to UIM coverage, it would be just and fair that he should also be subject to the forum selection clause asserted with that coverage.

Accordingly, the court affirmed the trial court and found that the trial court did not abuse its discretion in applying the terms of a forum selection clause in transferring the case to Bucks County.

Sudden Stop

In the case of Cleveland Brothers Equipment Co., Inc. v. Vorobey, No. 4:19-CV-01708 (M.D.Pa. 2020 Brann, J.), the court addressed whether the sudden stoppage of a vehicle ahead on the roadway, which is followed by a rear-end collision, can result in liability on the stopping vehicle.

In reviewing the Motion for Summary Judgment in this case, the court reviewed the facts of a multi-vehicle accident. According to the Opinion, there was an earlier accident on the opposite side of the highway, as a result of which, some debris allegedly spilled over into the other side of the highway, causing traffic to stop or slow on that side of the highway. A tractor trailer driver came to a stop in the stopped traffic and, shortly thereafter, several vehicles were allegedly rear-ended by another commercial vehicle.

The Defendant tractor trailer driver who had stopped ahead was the party who filed a Motion for Summary Judgment in this matter asserting that the operator of rear-ending vehicle who asserted liability claims against the stopped tractor trailer driver could not establish liability on the stopped vehicle.

Judge Brann indicated that the issues of liability presented was one to be decided by a jury. The court also noted that “sudden stoppage of a vehicle on the roadway…may create factual issues surrounding the proximate cause of an accident involving rear-end collision behind the stopped vehicle.”

The court in this regard cited to the cases of Doland v. Berrios, 2014 WL 3809962 at *3 (M.D. Pa. 2014) and Gensemer v. Williams, 419 F.2d 1361, 1362 (3d. Cir. 1970) in support of its decision.

As such, the court denied the Motion for Summary Judgment and allowed the issues to proceed to the jury.

Sudden Emergency Doctrine Still Valid

In the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court addressed the standards for when the sudden emergency defense should be applied in a motor vehicle accident case.

In his Majority Opinion, Justice Wecht noted that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.” See Op. at p. 1.

In the Majority Opinion, it was reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. See Op. at p. 5. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care, the doctrine should not be applied and instructed to the jury. See Op. at p. 6.

Justice Wecht confirmed that when the evidence in a case suggests that a “sudden emergency” may be evidenced in the record at trial, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.” Id.

In this regard, Justice Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” Id. On page 6 of his Opinion, Justice Wecht reiterated that the application of the sudden emergency doctrine is “[c]ounterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections. Id.

In this pedestrian versus motor vehicle accident case of Graham v Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view, and a lack of

33 evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact were found to fail to lay a foundation for the provision of that instruction to the jury. Id.

Further on in his Opinion, Justice Wecht noted that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and [the Majority] finds it ill-advised to use the word ‘defense’ in sudden emergency [jury] instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.” See Op. at 19.

Commentary:

Commentators are already pointing to the fact that, in his Dissenting Opinion, Justice Kevin Dougherty read this language as indicating that the Majority went “beyond the question [presented] to decide sua sponte the sudden emergency doctrine is no longer a viable defense in the Commonwealth.”

However, a fair reading of the Majority Opinion reveals that the Majority did not so rule; rather, in the Majority Opinion, it was held that the facts of this particular case did not support the application of the doctrine or the judge's provision of instructions to the jury on the sudden emergency doctrine. The law of the doctrine was otherwise reaffirmed in the Majority's Opinion with the indication that the application of the doctrine should be more closely scrutinized in the context of pedestrians darting out in front of vehicles at intersections given the heightened standard of car imposed on motorists in that scenario.

PREMISES LIABILITY UPDATE

In the case of Ohler v. Fayette County Area Voc.-Tech Sch., No. 135 of 2019 G.D. (C.P. Fayette Co. April 27, 2020 Cordaro, J.), the court denied a school’s Motion for Judgment on the Pleadings in a personal injury matter in which the school asserted immunity under the Political Subdivision Tort Claims Act.

According to the Opinion, the Plaintiff was exiting a school bathroom when the door closed on her finger and severed the tip. The Plaintiff filed a lawsuit against the Defendant for her injuries and damages.

The Defendant filed a Motion on the Judgment on the Pleadings asserting that it was entitled to immunity under the Political Subdivision Tort Claims Act.

The court noted that immunity would be denied to a local agency such that a school district where there was negligence that made the government-owned property unsafe for the activities for which it was regularly used, for which it was intended to be used, or for a use that could be reasonably foreseen.

The court also noted that, under the Political Subdivision Claims Act, 42 Pa. C.S.A §8542, there was an exception to the general immunity rule for real property in possession of a local agency.

In this case, the court noted that, under the Act, personal property could become a part of the realty at the school, which would then trigger the immunity exception. As the court noted that it was unclear from the pleading whether the bathroom door was personal property or a fixture, the court held that the Motion for Judgment on the Pleadings was without merit in this respect.

The court also rejected the Defendant’s contention that the Plaintiff’s notification letter to the Defendant was outside the six-month statute of limitations stated in 42 Pa. C.S.A. §5522.

Although the record confirmed that the Plaintiff’s notification letter was outside of the six (6) month window, the court noted that the Defendant, in its motion had ignored a part of the statute.

The court confirmed that, under 42 Pa. C.S.A. §5522(a)(3), a failure to provide a timely tort claims notice was not necessarily fatal to the action if the government unit had actual or constructive notice of the event or injury.

In this matter, the Plaintiff alleged that teachers, the school nurse, and other school personnel attended to the Plaintiff on the day of her injury. As such, the court found that the Defendant school had constructive notice such that the six-month limitation under the Act did not apply.

Slip and Fall - Hills and Ridges Doctrine

In the case of Kelly v. Northampton County Area Comm. College, No. 965-CV-2019 (Monroe C.P. Nov. 5, 2020 Williamson, J.), the court granted summary judgment in a case where the Plaintiff alleged personal injuries from a slip and fall event following a snowstorm.

According to the court's Opinion, the Plaintiff was a student at the college. After a snowstorm fell, classes were delayed the following day. The Plaintiff was apparently not aware of the delay and showed up for class at 8 a.m.

It was noted that there were no other cars in the parking lot and there was snow removal work being completed on the walkways. Nevertheless, the Plaintiff still ventured out of her car and began to shuffle through a walkway that was not cleared. The Plaintiff then slipped and fell.

Judge Williamson reviewed the facts presented along with a video of the incident and, in the end, entered summary judgment.

The court ruled that the Defendant's actions in attempting to clear the snow were reasonable. The court also found that the defense was entitled to summary judgment under the Hills and Ridges Doctrine as there was no evidence of any hills or ridges in the area in question.

The court additionally found that summary judgment was warranted under a finding that the Plaintiff assumed the risk of slipping, falling, and being injured under the circumstances.

Actual or Constructive Notice

In the case of DeRito v. Wal-Mart Stores East, L.P., No. 2:19-CV-737 (W.D. Pa. Dec. 2, 2020 Horan, J.), the court granted summary judgment in a slip and fall matter involving a Wal-Mart store.

The court noted that the record confirmed that it was undisputed that the allegedly hazardous condition that allegedly caused the Plaintiff to slip and fall had existed for a mere 31 seconds before the Plaintiff fell.

More specifically, it was noted that it was snowing on the day of the event. A customer was seen on a video coming into the store and noticing that the automatic door was stuck in the open position. That customer went to tell a store employee. About 31 seconds later, another customer came in from the snowy outside and slipped and fell. About 30 seconds after that, the first customer was seen on the video returning to the door with a store manager to address the issue with the door.

The court ruled that, as a matter of law, a time period of 31 seconds is too short for the Defendant to have had legally sufficient notice of the defective condition and an opportunity to remedy the same in order to support the claim of liability.

While, generally speaking, notice of a dangerous defect may be implied if the dangerous condition has frequently recurred, there is no evidence that the equipment malfunctioned at issue in this case had ever happened before.

The court additionally noted that an alleged prolonged failure by the store to inspect the area prior to the fall was immaterial since the hazardous condition had not existed at the time.

Slip and Fall - Supermarket

In the case of Urrutia v. Wal-Mart Stores, Inc., No. 3:18-CV-01254 (M.D. Pa. Oct. 27, 2020 Mariani, J.), the court denied the store’s Motion for Summary Judgment in a slip and fall matter.

The court found issues of material fact as to whether an alleged green substance on the floor caused the Plaintiff to slip and fall and as to whether the Defendant had constructive knowledge of that alleged dangerous condition in the produce section of the store.

According to the record before the court, the store manager testified that he had walked by the area where the Plaintiff fell several times in the hour before the Plaintiff’s incident and saw nothing on the floor.

That same store manager also testified that he was about ten (10) feet away from the Plaintiff when she fell. When he went to assist the Plaintiff, the store manager admittedly saw something on the floor that was green and about the size of a half dollar.

The court noted that the time period provided by the defense as to when the manager had walked passed the area were too imprecise to establish that the manager had inspected the produce area close enough in time of the Plaintiff’s fall in order to take the issue away from the jury’s consideration on whether the Defendant should be charged with constructive notice.

The court additionally noted that the manager and an assistant manager failed to identify themselves on any of the video surveillance of the event in such a manner to support the finding that the Defendant store was entitled to summary judgment.

Slip and Fall - Gas Station

In the case of Snair v. Speedway, LLC, No. 1:18-CV-00376-CCW (W.D. Pa. Jan. 19, 2021 Wiegand, J.), the court denied motions for summary judgment filed by a gas station, a snow removal service company, and that company’s subcontractor in a Plaintiff’s action for an alleged slip and fall event that allegedly occurred in a gas station parking lot matter.

The court found that there were genuine issues of material fact as to any constructive notice on the part of the gas station.

The court also found that there were genuine issues of material fact as to whether or not the snow removal service company owed any duty to the Plaintiff. Moreover, the court found that the subcontractor was not liable for indemnity or contribution under its contract.

According to the Opinion, the Plaintiff slipped and fell at the gas station while refueling his truck.

The Defendant gas station had contracted with the snow removal service company to provide snow and ice removal services at the gas station. That snow removal service company had contracted with a Defendant subcontractor to complete the plowing the salting.

The Plaintiff argued in opposition to the Motion for Summary Judgment that, since the snow and ice were under a canopy and was dirty, a jury could infer that the snow had been present for a significant period of time such that the gas station owner should have cleared the same. The Plaintiff also presented evidence that station employees were supposed to check for snow

39 and ice around the pumps throughout the day and there was no evidence that any inspection had been performed from one day to the next leading up to the incident. As stated, the court found issues of material fact with respect to the potential liability for the gas station company and allowed the gas to proceed to a jury.

The court also found issues of fact regarding the Defendants argument that the “choice of ways doctrine” barred recovery for the Plaintiff. The court noted that there were issues of material fact as to whether the Plaintiff failed to avoid an obvious hazard and also chose a dangerous route over a safe route.

Falling Trees or Branches

In the case of Matthews v. Prospect Crozer, LLC, No. 355 EDA 2020 (Pa. Super. Nov. 23, 2020 Dubow, J., Lazarus, J., Ford Elliott, P.J.E.) (Op. by Dubow, J.), the court affirmed a trial court dismissal of the Plaintiff’s negligence claims against certain Defendants where there was no evidence that those Defendants undertook an ongoing duty to perform inspections and maintenance of trees on the property in a case where a tree limb fell and injured the Plaintiff.

According to the Opinion, the Defendant landowner had a contract with the landscaping company and a snow removal company to periodically do work on the premises as needed.

According to what the court termed as "hypothetical evidence" generated during the course of discovery, the landscaping Defendant and the snow removal Defendant generally noted that they would have notified the property owner if either noticed an issue with the trees on the property.

The landscaping Defendant also noted it had occasionally performed tree-related work years prior to the incident.

It was also generally and hypothetically noted during the course of discovery that the property owner expected both companies to inspect and maintain trees on the property as of the time of the Plaintiff’s incident.

The Superior Court affirmed the trial court’s entry of summary judgment after finding that the testimonial evidence cited by the Plaintiff in the record was hypothetical in nature and, therefore, insufficient to support any argument that the landscaping company or the snow removal company undertook a duty to inspect and maintain the trees on the property.

The court also noted that the fact that the landscaping company had occasionally performed tree-related work years before the subject incident was also insufficient to establish that the landscaping company had gratuitously agreed to inspect and maintain the trees.

The court also noted that the property owner’s stated alleged expectation that the Defendant companies would have maintained the trees was also insufficient to impose a duty upon the landscaping company and the snow removal company in the absence of any evidence that they actually undertook that duty.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

MEDICAL MALPRACTICE

Presentation of Multiple Experts on Similar Issues

In the case of Snyder v. Scranton Hospital Company, LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 14, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the admissibility of the expert testimony in a medical malpractice case.

This matter arises out of a malpractice action during which the Plaintiff alleges that he suffered permanent left ulnar damage secondary to stretching or compression trauma caused by his improper positioning and inadequate monitoring during the course of a surgery.

In support of his claims, the Plaintiff has produced expert reports from an anesthesiologist, a rheumatologist, and a nurse with regards to the relevant standards of care and medical causation, along with additional expert reports from orthopedic surgeons concerning causation and the allegedly resulting damages.

The Defendants filed a Motion In Limine seeking to limit the expert testimony that the Plaintiff intended to present. More specifically, the Defendant sought to preclude any testimony by the rheumatology expert with regards to the standard of care and causation issues. The Defendants asserted that this expert should not be permitted to testify as he is not qualified to offer opinions on the standard of care and causation under the mandates of the MCARE Act, that the expert’s opinions would be cumulative in light of the opinions being offered by the Plaintiff’s other experts, and given that the rheumatologist expert's testimony was impermissibly speculative.

After his review of the record and the expert reports, Judge Nealon found that the rheumatologist expert offered by the Plaintiff did not satisfy the standard of care familiarity, same subspeciality, and similar approved board-certification requirements set forth in §512(c) of the MCARE Act, or the “related field of medicine” criteria in §512(e) of that Act, in order to be determined to be competent to address the standard of care under the facts of this case.

However, the court also found that the rheumatologist expert offered by the Plaintiff was sufficiently qualified under §512(a)(b) of the Act in order to testify as to the medical causation.

The court additionally noted that, since the causation opinions offered by the various different types of experts presented by the Plaintiff contained discrete reasoning offered by different types of medical specialists addressing the issue of causation from distinct clinical perspectives, the causation testimony of these different experts was found to be corroborative, rather than needlessly cumulative.

The court additionally found that the defense challenges to the rheumatologist's testimony based upon Pa. R.E. 703 and Pa. R.C.P. 207.1 under an argument that the testimony was impermissibly speculative was devoid of merit. The court noted that the rheumatologist’s opinions were based upon medical reports, depositions, and other evidence in the record. It was also noted that the expert did not rely upon novel scientific evidence or methodology that has not been accepted in the field of rheumatology.

As such, the court ruled that the rheumatologist would not be allowed to testify as to the applicable standard of care, but would be allowed to testify on the causation issues.

Informed Consent

In the case of Fritz v. BNG Aesthetics, LLC, No. CV-20-0553 (C.P. Lycoming Co. Oct. 28, 2020 Linhardt, J.), the court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice claim of a lack of informed consent relative to a laser procedure to treat the Plaintiff’s vision issues.

The court ruled that the Plaintiff’s lack of informed consent claim against the Defendant doctor lacked the specificity required to establish that the doctor not only provided her with

43 negligent treatment but also knowingly provided her with a different treatment than had been discussed with the Plaintiff.

The court noted that a claim for informed consent is treated as a “technical battery” under Pennsylvania law due to an unwanted testing.

Since the court found that the Plaintiff’s lack of consent/negligence claim was not properly pled, the court did not delve into the validity of the claim for punitive damages.

Discovery of Different Versions of Medical Records

In the case of DelGuercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Nov. 16, 2020 Nealon, J.), the court addressed a motion filed by the Plaintiff in a medical malpractice case seeking to compel the production of the “templates and macros” used by the Defendant doctor in creating the electronic medical record (“EMR”) at issue in this case.

According to the Opinion, this case arose out of allegations of an incorrect diagnosis following emergency room treatment that allegedly resulted in the Plaintiff being released and subsequently developing a stroke.

The Plaintiff alleged that, after the Defendant doctor had treated the Plaintiff in the emergency room and later learned what happened to the Plaintiff, the doctor allegedly made several additions and edits to the patient’s electronic medical record regarding his care of the Plaintiff during the relevant time.

The Plaintiff alleged that discovery revealed four (4) different versions of the doctor’s emergency room note that were captured by the electronic medical record system of the hospital.

During his discovery deposition, the Defendant doctor testified that he created his own “macros” that he would use when making entries into a patient’s EMR. The doctor described his macro as a template within a template. The doctor noted that he had chosen a couple of phrases within a drop-down menu and had saved them as a macro which he would

44 then tailor to the specifics of each patient thereafter. The Plaintiff asserted that the Defendant doctor used these macros as an excuse at his deposition to explain several of his additions and deletions from the Plaintiff’s medical records.

Judge Terrence R. Nealon

Lackawanna County

In his decision, Judge Nealon noted that the Pennsylvania Rules of Civil Procedure pertaining to discovery are designed to advance the truth-seeking process of a jury trial and to prevent any unfair surprise at trial.

The court reiterated the rule under Pa. R.C.P. 4003.1 that discovery is to be liberally allowed with respect to any matter that is relevant and not privileged. The court emphasized that the relevancy standard applicable to discovery is necessarily broader than the standards used at trial for the admission of evidence.

After also reviewing the more specific pertinent rule of Pa. R.C.P. 4009.1 regarding the discovery of electronically stored information (“ESI”), the court noted that the discovery at issue in this matter would be discoverable as relevant to the questions presented. The court granted the Plaintiff’s Motion to Compel in part and denied it in part based upon different aspects of the discovery at issue.