Tort Talk: Updates and Trends in Pennsylvania Civil Litigation Law

ARTICLE: FIVE COMMON MISTAKES TO AVOID DURING DEPOSITION

2012-05-28T20:59:00.002-04:00

Five Common Mistakes to Avoid During Deposition

By

Daniel E. Cummins

Pennsylvania Law Weekly 5/22/2012

It has been said that cases are won or lost at the deposition stage of the civil litigation process. The deposition represents the one pretrial opportunity to assess the opposing party's demeanor as well as its entire case on a face-to-face basis. Accordingly, the importance of the deposition cannot be emphasized enough.

Yet, given that the deposition is such a routine event in a civil litigator's daily practice, the danger exists for dropping one's guard, not fully honoring the importance of the deposition and running through the deposition in a robotic recitation of standard, common deposition questions.

Below are five common deposition mistakes that all attorneys may face at one time or another in their practice. Recognizing the potential for making these mistakes at a deposition may assist in avoiding their recurrence in the future.

Failing to Fully Prepare

A day or two prior to the scheduled deposition, every piece of paper in the file should be mined for information to cover during the deposition. With the many files attorneys handle on a day-to-day basis, it cannot be expected that an attorney will recall all the important aspects of any given file without reviewing the file. Furthermore, the seemingly not-so-important aspects of the file, hidden in the deep reaches of the file, may prove to be a game-changer later in the litigation.

One way to help an attorney secure an overview of the file prior to diving into the entire file in preparation for a deposition is to create a folder of all of your summary letters and memos to the file. Having all of those memos and summary letters in one folder for a quick initial review may help speed up the preparation process and avoid the aggravation of being unable to locate particular information.

In terms of being prepared to complete a deposition it is also wise to have an outline or even a set of standard questions in writing to bring with you to every deposition. Such writing will help to ensure you cover all of the important issues. While preparing for each deposition, this form can also be used to write notes from your review of the file, covering particular issues and questions to address.

The danger to avoid when using this type of form is the act of simply spitting out standard questions by rote. The key of every deposition is to actively listen to the deponent's answers and to ask follow-up questions in response to the answers in an effort to gather all available information from the witness at this one-time opportunity to complete a deposition.

The client deserves an attorney who is fully prepared to question the other side. Continually reminding yourself that, as an attorney at law, you are professionally representing another person's all-important interests and are serving as the mouthpiece of that person at the deposition may help one to avoid the mistake of not fully preparing for each and every deposition.

Breezing Over Preliminary Matters

The regularity of depositions in one's practice may also lull one into breezing over the preliminary matters that are typically reviewed at the commencement of each deposition. It should be initially confirmed on the record whether or not the depositions are proceeding by way of the "usual stipulations." Those usual stipulations typically cover the fact that all objections except those as to the form of the question are reserved for trial and that the witness is waiving the reading and signing of the deposition.

The better practice may be to not only put on the record that the usual stipulations are in place but to also actually and specifically state on the record that all objections are preserved for trial except for those objections to the form of a question. That way, there can be no question at trial whether or not an attorney preserved the right to state other objections at a later time.

Another preliminary matter sometimes overlooked at depositions is the simple act of securing the witness' basic information at the start of the deposition. Some attorneys will go into the preliminary instructions for depositions and then forget to even ask the witness his or her name, address, etc.

Accordingly, once the usual stipulations are confirmed on the record, it is best to have a practice to start with the name, address, date of birth and Social Security number of the witness even before going into the deposition instructions. Make this the first thing you do at every deposition so you don't ever forget to secure this information at the outset.

A benefit of adopting this practice is that you will know that, whenever you open a deposition transcript of any witness you deposed, that witness' basic information will be right there on the opening pages of the transcript. This will save you the time of otherwise having to scrounge through the entire transcript for an address, date of birth or Social Security number if needed.

Attorneys also sometimes develop a habit of breezing over the instructions, or ground rules, to a deposition. At the very least, the witness should be politely instructed to ask the attorney to repeat or rephrase any question that the witness did not hear or understand. It should be clearly stated on the record at the commencement of the deposition that the burden is on the witness to state, during the deposition, that he or she did not hear or understand a question. This practice will render less credible a deponent's backpedaling statements during impeachment at trial that they did not fully hear or understand the question at trial.

Remembering to fully cover the other standard instructions will also help the depositions to go quicker and smoother. Deponents should be politely requested to verbalize all of their responses, avoid "uh-huh" and "mm-hmm" and to allow the attorney to complete the question before beginning to answer. To avoid long pauses, the witness can be instructed that if he or she does not know the answer to a question, or cannot remember, it is acceptable to simply say so.

Also, to avoid any later claim by the witness that he or she was fatigued when responding to questions, it should be stated during the introductory instructions that the deponent may request a break at any time. Some attorneys also state their preference that, if a break is requested after a question is presented, the question be answered before the break is taken.

Last, but certainly not least, the witness should also be required to acknowledge on the record that he or she understands that he or she is under oath to tell the truth and that it is his or her intention to do so. In this regard, it should also be confirmed that the witness is aware that, should he or she testify differently at trial, his or her deposition transcript could be utilized to show the differences in his or her testimony.

Succumbing to Opposing Counsel's Tactics

Another mistake to avoid at depositions is allowing opposing counsel's antics and tactics to have an impact on how you conduct and complete your deposition.

One subtle, and perhaps unplanned, tactic of opposing counsel is the appearance of seeming extremely bored with the whole proceeding. Out of courtesy to a friendly opposing counsel, the deposing attorney may feel compelled to move matters along and get the deposition done. Such feelings can be dispelled by reminding oneself that the duty to the client demands that all information that can possibly be gathered at the deposition be secured.

The opposite of the bored opposing counsel is the boorish opposing counsel. These churlish opposing attorneys sit on the edge of their seats at depositions ready to pounce with an objection at every opportunity, even though the usual stipulations are in place. Even worse, they often utilize speaking objections in a loud, ornery, oafish manner.

These antics are best ignored. Do not engage the opposing counsel — that is all he or she wants in order to throw you off your track. Similar to a petulant child's tantrum, the less these antics are acknowledged, the less they will escalate or continue.

The better tactic is to direct your focus on the witness, ignore the opposing attorney and await an answer to the question presented. If there is no answer forthcoming, ask the question politely again. If the witness is instructed by the opposing attorney not to answer the question, simply state that you reserve the right to file a motion with the court and redepose the witness on the question presented. Then simply move ahead with your deposition.

If the opposing attorney continues with repeated questions, continue with the same process above. If the deposition is being totally sabotaged by a bullying opposing counsel, a phone call to the court may be required to get things back on track. Usually, the threat to call the court calms things down and gets them moving ahead again.

Simply put, you are there to depose the witness and gather information from that witness. Focus your attention on the witness and ignore the opposing counsel.

Forgetting to Cover Social Media

There is no question that, with the explosion of social media, a portion of a deposition of a plaintiff or a defendant should be dedicated to inquiring as to the witness' online presence and whether there has been any mention of the subject accident or issue in question on any of the deponent's social media sites.

Typically, prior to the deposition, the opposing party will have already stated an objection to any written discovery requests for social media access information (username and password). At least one Pennsylvania trial court decision has indicated that before a party can have such an objection overruled, the court must be convinced there is relevant information to be garnered from such discovery.

Accordingly, at the very least, deposition questions on this topic should confirm that the witness does indeed have an online presence (Facebook, Myspace, Twitter, etc.) that the witness has added to or deleted from since the subject accident or incident. In this way, a foundation can be laid for the filing of a motion to strike the opposing party's objection and compel the discovery desired.

Obviously, if the witness concedes that he or she has an online presence, and that he or she has added to or deleted from that presence, follow-up questions should be presented for more specific information in that regard. While the username and password necessary for entry into the deponent's site may be initially objectionable under privacy concerns, general questions as to the content of the site will usually be allowed by opposing counsel as obviously relevant to the claims presented.

Forgetting to Go Over Pleadings and Discovery Responses

Perhaps a good way to end every deposition, so you do not ever forget to do so, is to pull out the opposing party's pleadings and discovery responses and go over any issues or unanswered questions raised therein.

With the pleadings, a party may have raised some factual issues that should be explored. The pleadings may also contain exaggerated statements verified by the opposing party to be true and correct to the best of his or her knowledge. Confirming those exaggerated statements as being true and correct according to the opposing party may serve as fodder for cross-examination at trial.

In terms of the opposing party's discovery responses, there are sure to be a number of interrogatories or requests for production of documents and things that were objected to or given a pat response. At the deposition, the witness could be pressed on these issues for a response, or a more complete response.

In the event the discovery objections are restated during the deposition, the questioning attorney will at least learn the stated parameters of that objection and that a motion to compel may be necessary prior to trial to remove the objection.

Again, it is important to remember that the deposition is the one and only opportunity for a pretrial face-to-face inquisition of the opposing party and the opposing party's case. By going over objected to and unanswered written discovery requests, the questioning attorney may gather nuggets of golden information to advance the client's case at trial.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com.

This article originally appeared in the May 22, 2012 edition of the Pennsylvania Law Weekly and is republished here with permission from ALM Media (C).

Registration Open for CLE with the Phillies Set for August 30, 2012

2012-05-25T12:31:00.001-04:00

Registration has been opened by the PBI for the "CLE with the Phillies" seminar that I will be presenting on Thursday, August 30, 2012 at Citizens Bank Park in Philadelphia before the Phillies vs. Mets game.

I have been told that these CLE seminars, which allow up to about 95 attendees, "sell out" quickly and this one is expected to as well (not because of me, of course--because it's a day out of the office and at the ballpark for a nice way to pick up a CLE credit--and, hopefully, the Phillies will be back to their winning ways by then).

I will be providing a Civil Litigation Update as well as presenting my article, "Take Me Out to the Ballgame: Little League Tips for Big League Lawyers."

To register for this August 30, 2012 CLE at Citizens Bank Park. visit http://www.pbi.org/ and type 7376 in the "Search Our Entire Catalog" box and hit enter--then follow instructions on the page you are taken to in order to complete the registration. Note that parking is not included and CLE coupons may not be used for these Ballpark CLE seminars.

Hope to see you there!

PDI CLE SEMINAR PITTSBURGH - JUNE 28, 2012

2012-05-25T12:20:00.004-04:00

PENNSYLVANIA DEFENSE INSTITUTE

CLE SEMINAR - PITTSBURGH

Sheraton Station Square Hotel, Pittsburgh, Pennsylvania

Thursday, June 28, 2012

1:00 – 1:30 PM Registration

1:30 – 2:00 PM “Reflections on Pennsylvania’s New Fair Share Law”

Brian Kane, Esquire

Dapper, Baldasare, Benson, Behling & Kane

2:00 – 3:00 PM “Online Investigations: The Use and Discovery of Social

Media in Claim Investigations”

Dana Pescatore

InSight Investigations

Lexington Wolff, Esquire

Meyer, Darragh, Buckler, Bebenek & Eck

3:00 – 3:15 PM Break

3:15 – 3:45 PM “Vocational Reports: What is Needed, What They Say”

James Primm

Associates in Rehabilitation Management, Inc.

3:45 – 4:45 PM “Ethics in Tort Litigation: Discovery of Expert

Communications after Barrick v. Holy Spirit Hospital,

Discovery of Expert Information after Cooper v. Schoffstall,

Uninsured/Underinsured Litigation after IFP v. Koken

Panel:

Honorable Ronald Folino

Allegheny County Court of Common Pleas

Thomas McDonnell, Esquire

Summers, McDonnell, Hudock, Guthrie & Skeel

Louis Long, Esquire

Pietragallo, Gordon, Alfano, Bosick & Raspanti

William Wagner, Esquire

Marnen, Mioduszewski, Bordanaro, Wagner & Sinnot

2 Substantive and 1 Ethics credits

CLE program:

• Lawyers: $125

• Claim representatives: FREE

Name(s): ________________________________________________________________

Firm/Company: __________________________________________________________

Make checks payable to:

Pennsylvania Defense Institute

P.O. Box 697, Camp Hill, PA 17001-0697

For more information, contact us at 800-734-0737 or coled01@padefense.org

Pennsylvania Supreme Court Addresses Admissibility of Expert Opinions in Products Cases

2012-05-24T19:52:00.004-04:00

Here's a LINK to an excellent post from the Drug and Device Law Blog by Attorney James Beck of the Philadelphia office of the Reed Smith law firm on the just handed down Pennsylvania Supreme Court opinion in the case of Betz v. Pneumo Abex LLC, No. 38 WAP 2010 (Pa. May 23, 2012)(slip op.) regarding asbestos-related products liability expert issues under a Frye analysis.

As noted in the Drug and Device Law Blog post, although the context of this case centers around asbestos litigation, the reasoning of the opinion could have implications in all products cases (and even other types of cases) in terms of the test for the admissibility of a particular expert's opinion, particularly on a novel scientific theory. I note that the Drug and Device Law Blog post also has a link within it to the Betz opinion by the Pennsylvania Supreme Court.

I give a tip of the hat to Attorney Beck for allowing me to bring his post to your attention with this link.

Commonwealth Court Addresses Zero Verdict Law in Unpublished Decision

2012-05-24T19:23:00.002-04:00

Tort Talkers may recall that the trial court opinion in the case of Anastasi v. Old Forge was previously highlighted here in which the trial court denied a motion for a new trial in a case where there was a 50-50 finding by the jury on the liability issue in a trip and fall case but in which the jury did not enter any award in favor of the Plaintiff on the damages issues. The trial court denied the post-trial request by the Plaintiff for a new trial on the issue of damages only based upon an allegedly improper zero verdict under the circumstances.

It has been brought to my attention that the Commonwealth Court, in a 2-1 unpublished memorandum opinion has referred that case back for a new trial. See Anastasi v. Old Forge Borough, No. 1327 C.D. 2011 (Pa.Cmwlth. May 18, 2012 Leadbetter, Brobson, Oler, JJ.)(Majority Op. by Brobson, J.)(Dissent without Op. by Leadbetter, J.).

The appellate court noted that the main injury, an Achilles' tendon tear, is commonly known as a painful injury and the court also emphasized that while the extent of injury sustained was contested by the defense at trial, there was no dispute that the type of injury occurred as a result of the incident. The appellate court stated that, since the jury also found in favor of the Plaintiff on the causation issue, the zero verdict on damages could not stand under this scenario. As such, the case was remanded for a new trial.

Anyone desiring a copy of the Commonwealth's Courts' recitation of the current status of the applicable law on zero verdict issue in its unpublished Anastasi decision may contact me at dancummins@comcast.net.

Motion to Amend Complaint Denied In Flood Insurance Coverage Dispute

2012-05-24T09:44:00.002-04:00

In his recent May 4, 2012 Opinion in the case of AJT Properties, Inc. v. Lexington Insurance Company, No. 2008 - CV - 4252 (C.P. Lacka. May 4, 2012 Nealon, J.), Judge Terrence R. Nealon denied a Plaintiff's request to amend its Complaint to state an additional breach of contract claim based upon an allegation of unilateral mistake.

After a review of the law pertaining to amendments of pleadings as well as the elements of a contractual unilateral mistake claim against the facts of the case, the court noted that the requested amendment did not state a viable claim and, as such, the amendment would be a futile effort. Accordingly, the motion to amend was denied.

Anyone desiring a copy of Judge Nealon's Opinion in this case may contact me at dancummins@comcast.net.

Judge Caputo of Federal Middle District Addresses UM/UIM Rejection Form Issue

2012-05-21T16:17:00.003-04:00

In his recent decision in the case of Glazer v. Nationwide Mut. Ins. Co., NO. 3:10-cv-1366 (M.D. Pa. May 17, 2012 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania held that the Pennsylvania Supreme Court's decisions regarding Section 1738 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) in Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194 (Pa. 2007) (Sackett I), modified on reargument, 940 A.2d 329 (Pa. 2007) (Sackett II) do not apply to the requirements of Section 1731 relating to the outright rejection of uninsured and underinsured motorist benefits.

The Glazer Court held that the Section 1731 rejection form applies throughout the lifetime of the insured's policy as established by the Pennsylvania Superior Court's decision in the case of Smith v. Hartford Ins. Co., 849 A.2d 277 (Pa. Super. 2004).

Therefore, the Glazer decision reaffirms that, when a new car is added to a policy where uninsured and underinsured motorist coverage was already rejected, there is no requirement that a new rejection form be obtained.

Stated otherwise, Judge Caputo applied the Smith decision to rule that a new rejection form is not mandated every single time a new car is added to the policy. In contrast, under the Sackett decisions, new form are required under Section 1738 regarding stacking whenever uninsured and underinsured motorist coverage had already been previously purchased by the insured and new vehicles are added.

I send thanks to Attorney Paul Oven of the Moosic law firm of Dougherty, Leventhal & Price for bringing the Glazer decision to my attention and to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for explanatory commentary on this decision.

Anyone desiring a copy of the Glazer decision may click this LINK.

President Obama Nominates Judge Mannion and Attorney Brann to Federal Middle District Bench

2012-05-21T11:51:00.000-04:00

According to a May 18, 2012 article by Borys Krawczeniuk in the Citizen's Voice, President Obama has nominated U.S. Magistrate Judge Malachy E. Mannion and Bradford County attorney Matthew W. Brann to fill two judicial vacancies on the U.S. District Court for the Middle District of Pennsylvania. The nominees now must go through the U.S. Senate approval process.

Here is a link to the Citizen's Voice article on the topic:

http://citizensvoice.com/news/obama-nominates-mannion-and-brann-as-federal-judges-1.1316949

Pennsylvania Supreme Court to Address Issue of Authentication of Text Messages at Trial

2012-05-17T13:19:00.003-04:00

Tort Talkers may recall that I recently reprinted on Tort Talk an article of mine on the Pennsylvania Superior Court case of Commonwealth v. Koch in which that Court discussed the parameters of authenticating text messages for admission into evidence at a criminal trial--see here.

According to an article by Ben Present in the May 17, 2012 online edition of The Legal Intelligencer, the Pennsylvania Supreme Court has agreed to hear an appeal in the Koch case, in part, over whether "unauthenticated" text messages may be admitted as evidence during a criminal trial trial.

This appears to be a case of first impression for Pennsylvania's highest court and it will be interesting to see how the issue is handled. Surely, the decision could have an impact in civil litigation matters as well on the use of evidence pertaining electronic messages.

Recent Venue Decisions Out of Philadelphia County

2012-05-16T15:30:00.000-04:00

I have come across two decisions from the past six (6) months the Philadelphia County Court of Common Pleas allowed personal injury cases to remain venued in Philadelphia over the defendant's objection:

Martine v. YMCA of Brandywine Valley, et al., May Term 2011, No. 0657, Control No. 11092311 (C.P. Phila. Co. Nov. 7, 2011 Glazer, J.).

YMCA of the USA, a national entity in Chicago, Illinois objected to venue in Philadelphia County because the accident occurred in Chester County at a branch YMCA, YMCA of the Brandywine Valley, the Minor Plaintiff resides in Chester County, and it was asserted that the national branch was a completely separate and distinct corporation. The court noted evidence of contacts by the national branch with the local YMCA branch sufficient to overrule the venu objection.

Kelley v. Gillies, March Term 2011, No. 03264, Control No. 11-082762 (C.P. Phila. Co. Sept. 21, 2011 Manfredi, J.).

Court found that defendant's acts of driving into Philadelphia to deliver products which were sold to Philadelphia customers by way of internet and telephone orders were acts of a quality and quantity sufficient to demonstrate proper venue in Philadelphia County.

Anyone desiring a copy of these venue decisions may contact me at dancummins@comcast.net.

I send thanks to Attorney Ryan F. Curran of the Curran Firm in Media, PA for sharing these decisions with me.

Upcoming PDI CLE Seminar - Scranton - June 21, 2012

2012-05-16T15:28:00.001-04:00

PENNSYLVANIA DEFENSE INSTITUTE

“Handling Non-Litigation Claims – Part II,

and Pennsylvania Insurance Bad Faith”

University of Scranton

Scranton, PA

Thursday, June 21, 2012

PDI proudly presents the second in a series of programs for young defense lawyers in central

and north central Pennsylvania

10:30 – 11:00

AM Registration

11:00 AM – 12:00 PM

“Handling Non-Litigation Claims – Part II"

Suzanne Tighe, Esquire

Swartz, Campbell LLC

Susan Thundu Luquis, Esquire

Nationwide Mutual Insurance Company

12:00 PM Lunch

12:00 – 1:00 PM

“Pennsylvania Bad Faith Law Update”

R. Bruce Morrison, Esquire

Marshall, Dennehey, Warner, Coleman & Goggin

1:00 – 1:30 PM

“Use of Experts in Bad Faith Litigation”

David Cole, Esquire

Litigation Consultant

1:30 – 2:00 PM

“Counseling Insurance Clients on Avoiding Bad Faith”

R. Bruce Morrison, Esquire

David Cole, Esquire

THE COST:

$75.00 payable to “PDI”

Name(s)

________________________________________________________

Firm:

________________________________________________________

Superior Court Affirms Summary Judgment for Landlord in Dog Bite Case

2012-05-15T15:20:00.000-04:00

In its recent April 23, 2012 decision in the case of Rosenberry v. Evans, 2012 Pa. Super. 91 (Pa.Super. April 23, 2012 Bowes, Olsen, and Platt, JJ.)(Opinion by Bowes, J.), the Pennsylvania Superior Court entered summary judgment in favor of a landlord in a dog bite case.

The court essentially ruled that, although there were genuine issues of material fact pertaining to the alleged dangerous propensities of the dog that allegedly bit the child involved, the trial court's entry of summary judgment in favor of the landlord defendant was affirmed given the absence of any evidence that the landlord had knowledge of any alleged vicious propensities of the dog.

Anyone desiring to review this Opinion may click this link.

Source: "Court Summaries" by Timothy L. Clawges in the May 21, 2012 Pennsylvania Bar News.

Motion to Amend to Add Counterclaim Denied in Lackawanna County Insurance Case

2012-05-15T09:05:00.000-04:00

In his recent May 2, 2012 decision in the case of Rader v. Hospital Service Assoc. of NEPA (Blue Cross), No. 10 CV 3423 (C.P. Lacka. May 2, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the right of a defendant to amend its Answer and New Matter to state a Counterclaim in an insurance contract dispute.

By way of background, the Plaintiffs originally filed suit against the carriers for only paying a portion of the medical expenses charged by medical providers who were out-of-network. The Plaintiffs asserted that the defendants breached the contract for not paying the full amounts and for allegedly leading the Plaintiffs to believe that the entire amounts would be paid.

After filing its Answer and New Matter, the defendants came to court seeking to amend the Answer and New Matter to assert a Counterclaim asserting that it was the Plaintiff who breached the contract for failing to pay the excess medical expenses over and above the insurance coverage as required by the policy provisions.

The Plaintiffs opposed the motion arguing, in part, that the defendants lacked standing to make such a claim given that the defendants were not the entity being harmed by the Plaintiff's non-payment.

After reviewing the law of amendments of pleadings, the Court ruled that the requested amendment should not be allowed. Simply put, the Court noted that, if the defendant's payment was appropriate under the policy terms, the carrier had no right of recovery against the Plaintiff to support the defendant's breach of contract claim. Conversely, if it was determined that the defendants were required to pay more under the facts of this case, then it would be the defendants who would be required to make additional payments, not the Plaintiff.

Believing that the proposed Counterclaim did not state a valid breach of contract claim against the Plaintiff, the court denied the Motion to Amend.

Anyone desiring a copy of this decision in the case of Rader v. Hospital Service, may contact me at dancummins@comcast.net.

Recent Defense Verdict in Federal Middle District Age Discrimination Case

2012-05-11T13:47:00.001-04:00

Case: Anthony Curra v. Country Club of Scranton, Civil # 3:10-CV-591, U.S. District Court, Middle District of PA

Trial Judge: The Honorable Edwin Kosik

Case Summary:

Plaintiff, Anthony Curra filed a claim for age discrimination under the ADEA and PHRA following his termination from the Defendant, Country Club of Scranton where he worked as a cook for 22 years. Plaintiff argued that his termination was based solely on his age and claimed that the Country Club of Scranton had a pattern and specific intent to terminate its older employees. The Defense argued that the Plaintiff was terminated because of his inability to perform the duties of his employment position and was not competent to serve in the position of a head chef.

After a three day trial, the jury returned a unanimous verdict for the Defendant and held specifically that the Country Club of Scranton was not liable under the ADEA or the PHRA for any of the claims asserted by the Plaintiff. Defense counsel was James Doherty, Jr. and James Doherty, III of the Scranton law firm of Scanlon, Howley & Doherty, P.C.

Source: May 10, 2012 Times-Tribune Article by Steve McConnell:

http://thetimes-tribune.com/news/federal-jury-dismisses-suit-waged-against-country-club-of-scranton-1.1313084#axzz1uZySNxKL

Upcoming PDI CLE Seminar in Harrisburg, PA Next Week

2012-05-11T12:11:00.001-04:00

PENNSYLVANIA DEFENSE INSTITUTE

“Legal Issues in Modern Communication”

Hollywood Casino at Penn National Race Course

Grantville, Pennsylvania

Thursday, May 17, 2012

1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Social Media from the Practitioners Standpoint:

Using Social Media in Litigation”

Stephen Geduldig, Esquire

Thomas, Thomas & Hafer

Scott Cooper, Esquire

Schmidt, Kramer

Lisa Woodburn, Esquire

Angino & Rovner

2:30 – 2:45 PM Break

2:45 – 3:45 PM “Developing a Defensible E-Discovery Plan”

Peter Mansmann, Esquire

Precise, Inc.

3:45 – 4:00 PM Break

4:00 – 5:00 PM “Recent Developments in Expert Discovery and Privilege”

Jonathan Stepanian, Esquire

McQuaide, Blasko

5:00 PM Cocktail Reception

Claims Representatives: $25

Attorneys: $150

Contact Dave Cole, Executive Director of the PDI to register at coled01@padefense.org

Superior Court CLE at the Mohegan Sun - Wilkes-Barre

2012-05-11T08:56:00.004-04:00

The Superior Court of Pennsylvania

will conduct a

Continuing Legal Education Program

"APPELLATE PRACTICE IN PENNSYLVANIA"

SPONSORED BY THE

LACKAWANNA BAR ASSOCIATION

AND THE

WILKES-BARRE LAW AND LIBRARY ASSOCIATION

MONDAY, MAY 14, 2012

MOHEGAN SUN AT POCONO DOWNS

2:00 P.M. TO 5:00 P.M.

3 HOURS SUBSTANTIVE CLE CREDIT

1:45-2:00 Registration

2:00-4:00 Appellate Wheel of Fortune

Featuring Panel Members:

Hon. Jack Panella, PA Superior Court

Hon. David Wecht, PA Superior Court

Atty. Dean R. Phillips, Elliott Greenleaf

4:00-5:00 How to Deal with Expert Witnesses:

Featured Speaker:

Cyril H. Wecht, M.D., J.D.

Reception Immediately Following

Registration fee: $50 per person

YLD members fee: $35 per person

Checks payable to : "Wilkes-Barre Law & Library Assn"

Tort Talk Turns Three

2012-05-08T13:52:00.001-04:00

It was three years ago on May 4, 2012 that I started up the Tort Talk Blog. Now, it is over 850 email subscribers strong and hosts an annual CLE Conference. I thank you for your support of Tort Talk and for your contributions to the content.

I hope to continue to be able to provide updates on Pennsylvania Civil Litigation matters in a straightforward and concise yet interesting fashion while keeping my opinions to myself wherever possible.

Thanks for reading and thanks for your support. I appreciate it.

Written Materials from Tort Talk Expo 2012 Available

2012-05-08T13:48:00.001-04:00

After a successfull Tort Talk Expo 2012 last Thursday, May 3, 2012 at the Mohegan Sun, I am pleased to be able to offer up a complimentary PDF copy of the written materials that I created for that event. The written materials include a Civil Litigation Update, an Auto Law Update, a Bad Faith Update, and several articles on a variety of civil litigation topics. The Updates are largely comprised of recycled Tort Talk posts.

Anyone desiring an emailed PDF copy of the written materials from the Tort Talk Expo 2012 may contact me at dancummins@comcast.net. In exchange, I ask that you please keep me in mind should I ever be able to assist you in any way in Northeastern Pennsylvania.

Pennsylvania Supreme Court to Address Peer Review Attorney's Fees Case

2012-05-08T13:43:00.003-04:00

The Pennsylvania Supreme Court has agreed to address the issue of whether an insurer can be required to pay a medical provider's attorney fees even if the insurer properly employed the peer review process before denying coverage because it deemed the medical care unnecessary.

On April 30, the Court issued an Order granting allocatur in Herd Chiropractic Clinic v. State Farm Mutual Automobile Insurance.

At the Superior Court level, that court unanimously ruled that defendant State Farm owed attorney fees in the amount of $27,047.00 to Herd Chiropractic Clinic despite the carrier's proper use of peer review. To read the Tort Talk post on the Superior Court's decision, click here.

Here is a link to the Pennsylvania Supreme Court's Order granting the appeal in which the specific issue presented is spelled out.

Source: "High Court Takes Up Insurance Case" by Zack Needles of The Legal Intelligencer (May 8, 2012).

Great Turnout for the Tort Talk Expo 2012 CLE Seminar

2012-05-06T22:15:00.000-04:00

There was a great turnout for the Tort Talk Expo 2012 with nearly 100 attendees (96 to be exact). I thank all who attended and hope you had an enjoyable time at the seminar networking, visiting with vendors and earning CLE credits.

Here are some photos from the event:

Daniel E. Cummins, Esq. welcomes attendees

A full house at the Mohegan Sun Casino Seasons Ballroom

Daniel E. Cummins, Esq. references the Tort Talk Blog

Daniel E. Cummins, Esq. describes his background

Daniel E. Cummins, Esq. presents an Auto Law Update

Attorney Paul T. Oven starts his Civil Litigation Update

Dr. Michael L. Brooks, M.D., J.D., Director of Neuroradiology at
Mercy Diagnostic Imaging presents on Diagnostic Studies

Judge Joseph Van Jura (Ret. - Luz. Co.) Moderates Judicial Panel Hour

Distinguished Jurists Preside Over "View From the Bench" Hour:
From L. to R. Luzerne County President Judge Thomas F. Burke, Jr.,
Third Circuit Court of Appeals Judge Thomas I. Vanaskie,
President Judge of Pennsylvania Superior Court Correale F. Stevens,
and Pennsylvania Supreme Court Justice J. Michael Eakin

All photos are courtesy of Gary Wilsch of At the Scene (www.atthescene.com) I thank him for his services in this regard.

I also say thanks to the below table vendor sponsors of the Tort Talk Expo 2012 who helped to make this event possible:

BMS Consultants, Inc.: http://www.bmsconsultants.com/\

CED Investigative Technologies:

http://www.ced-aai.com/

Courtside Documents: http://www.courtsidedoc.com/

Digital Justice: http://www.digitaljustice.net/

Exhibit A: http://www.exhibitadigital.com/

Innovative Nursing Consultants

Minnesota Lawyers' Mutual: http://www.mlmins.com/

Northeastern Rehabilitation Associates: http://www.nerehab.com/

Precise, Inc.: http://www.precise-law.com/

RecordTrak: www.recordtrak.com/

Ringler Associates: www.ringlerassociates.com/

Surveillance Professionals Investigations, LLC:

http://www.survpros.com/

Veritext: http://www.veritxt.com/

Thanks again to all who attended and sponsored the

Tort Talk Expo 2012!!

UPCOMING PENNSYLVANIA DEFENSE INSTITUTE CLE SEMINARS

2012-05-06T08:22:00.002-04:00

Below is a listing of upcoming Pennsylvania Defense Institute CLE seminars. For more information visit the PDI website at www.padefense.org or contact the PDI Executive Director, Dave Cole at coled01@padefense.org.

CENTRAL PA

May 17: South Region Regional CLE Program & Reception: Hollywood Casino in Grantville

WESTERN PA

June TBD: West Region Young Lawyers Program Session 1: Location TBD

SCRANTON, PA

June 21: Joint North/South Regions Young Lawyers Program Session 2: Location TBD

PITTSBURGH, PA

June 28: West Region Regional CLE Program: Sheraton Station Square Hotel in Pittsburgh

WESTERN PA

July TBD: West Region Young Lawyers Program Session 2: Location TBD

ANNUAL MEETING - BEDFORD SPRINGS RESORT IN BEDFORD SPRINGS, PA

July 19-20: PDI Annual Meeting, including final Young Lawyers Session for all Regions: Bedford Springs Resort in Bedford Springs, PA

WILKES-BARRE, PA

August 22: North Region Regional CLE Program & Reception: Mohegan Sun Casino in Wilkes-Barre

Upcoming CLE by The Pennsylvania Superior Court

2012-05-02T14:09:00.003-04:00

The Pennsylvania Superior Court

Will conduct a Continuing Legal Education Program

Sponsored by the

Lackawanna Bar Association

and the

Wilkes-Barre Law and Library Association

Monday, May 14, 2012

3 Hours Substantive CLE Credit

"APPELLATE PRACTICE IN PENNSYLVANIA"

Mohegan Sun at Pocono Downs

2 pm to 5 pm

Reception to immediately follow at 5 pm

Internationally known forensic pathologist, attorney and medical-legal consultant Dr. Cyril H. Wecht will be the headliner at a Continuing Legal Education Seminar May 14th at Mohegan Sun.

The event is sponsored jointly by the PA Superior Court, the Wilkes Barre Law and Library Association and the Lackawanna County Bar Association.

“This is an exceptional opportunity for lawyers to earn Continuing Legal Education Credits,” according to Superior Court President Judge Correale Stevens.

“Dr. Wecht has been on nationally syndicated programs discussing the assassinations of both President John F. Kennedy and Senator Robert F. Kennedy, the death of Elvis Presley, the O.J. Simpson case, and the JonBenet Ramsey cases. His expertise has been utilized in the Mary Jo Kopechne, Sunny von Bulow and many other high profile cases,” Stevens noted.

In addition to Dr. Wecht’s presentation, the seminar will include a summary of appellate rules. Superior Court Judges Jack Panella and David Wecht along with Attorney Dean Phillips will use a “Jeopardy” format to engage the attendees in reviewing appellate rules.

“Judges Panella and Wecht and Attorney Phillips have put together an informative yet entertaining way to do an in-depth look at the appellate rules.”

“And Wilkes Barre Law and Library Association President Joseph Saporito and Lackawanna County Bar President Jane Carlonas are committed to providing lawyers with outstanding legal education seminars and it is a pleasure to work with them on this CLE presentation,’ Stevens concluded.

Lawyers should contact the Joe Burke at the Wilkes Barre Law and Library (Joseph.Burke@luzernecounty.org) to make reservations.

The event will take place from 2 pm to 5 pm at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Summary Judgment Granted in Monroe County Trip and Fall Case

2012-05-02T13:57:00.002-04:00

In the case of Fuller v. YMCA of Monroe County, No. 2239-Civil-2011 (C.P. Monroe March 28, 2012 Harlacher-Sibum, J.), Judge Jennifer Harlacher-Sibum of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Borough of Stroudsburg, in a slip and fall accident case.

By way of background, the Plaintiff alleged that the Defendant, Borough of Stroudsburg, was negligent in planting a tree in front of a Dunkin Donuts store that, during its growth, caused the section of the sidewalk to increase in height, which increase in the height of the sidewalk caused the Plaintiff to fall.

In her Opinion, Judge Harlacher Sibum noted that the Dunkin Donuts store conceded that it was the party in possession and control of the subject property at the time of the incident.

The Court also reviewed the Plaintiff’s deposition testimony and written discovery responses in which the Plaintiff essentially admitted that she was unaware as to how long the allegedly dangerous condition existed. In her responses, the Plaintiff also admitted that the “condition is open and obvious” in an apparent effort to show that the Defendant should have been aware of the condition of the sidewalk.

In its Motion for Summary Judgment, the Defendant, Borough of Stroudsburg, argued that the Plaintiff failed to establish that that Defendant was in possession and control of the open and obvious condition of the sidewalk.

Recognizing that the mere fact that a fall occurred does not give rise to an inference of negligence, the Court stated that the Plaintiff had the burden of proving negligence on the part of each Defendant named in the suit.

In this matter, the Court accepted the Defendant, Borough of Stroudsburg’s argument that it was not in possession or control of the property where the injury occurred and that the repair and maintenance of the sidewalk, including the maintenance of a tree planted by the Defendant were the responsibility of another entity based upon a borough ordinance. As noted, the Opinion further confirmed that the Co-Defendant owner of the Dunkin Donuts store conceded that they were in control of the property at the time of the incident.

The Court ruled that, since the Borough ordinance specifically shifted the duties of the maintenance of the sidewalk to the property owner, the Defendant, Borough of Stroudsburg, was not under any obligation to the Plaintiff. Accordingly, since there was no duty owed by the Defendant to the Plaintiff, the Court granted summary judgment in favor of the Defendant, Borough of Stroudsburg. The Court further indicated that, even though the borough may have planted the tree in the vicinity of the sidewalk, under the applicable local ordinance it was still the duty of the property owner to maintain the sidewalk.

Anyone desiring a copy of this decision in the case of Fuller v. YMCA of Monroe County may click this link.

I send thanks to attorney Stephen H. Franko, IV of the Scranton office of Cipriani & Werner for bringing this case to my attention.

Commercial Tort Decision by Judge Nealon of Lackawanna County

2012-05-02T13:52:00.003-04:00

In the case of Eastern Roofing Systems, Inc. v. Cestone, No. 2008-Civil-8764 (C.P. Lacka. April 13, 2012 Nealon, J.), Judge Terrence R. Nealon addressed issues raised in a commercial tort matter.

In this case, a roofing contractor filed two lawsuits against a local businessman, his residential construction firm, and an industrial building construction company, asserting contract, quasi-contract, statutory, and tort claims against them for unpaid invoices related to work the Plaintiff performed on eight construction projects.

This matter came before the Court on the Defendant’s Preliminary Objections demurring to the contractor’s claims for promissory estoppel, fraud, and negligent misrepresentation as well as with respect to the individual businessman’s personal liability in the suit involving the commercial construction company.

This Opinion is significant in that the Court held that the negligent misrepresentation claims were barred by the “Economic Loss Doctrine,” but that the corporate officer of a company involved could be potentially personally liable in tort based upon the “participation theory” in commercial litigation.

If this sounds like a case that may help you in your practice, a copy of the Judge Nealon’s Opinion in this case of Eastern Roofing Systems, Inc. v. Cestone can be viewed here.

Appropriate Statute of Limitations for Counterclaim for Property Damages in Auto Accident Litigation

2012-05-02T13:50:00.002-04:00

In the case of Conrad v. Donly, No. 2011-Civil-4828 (C.P. Lacka. April 19, 2012 Nealon, J.), Judge Terrence Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether the statute of limitations period applicable to a Plaintiff’s personal injury claim in an automobile accident litigation also governs the statute of limitations for a Defendant’s counterclaim for property damages arising out of the same accident.

In a detailed analysis, Judge Nealon noted that the law on this issue provides that the applicable statute of limitations depends on whether the counterclaim is characterized as a “set off” or a “recoupment.”
In this case, the original Plaintiff filed a Motion for Judgment on the Pleadings with respect to the counterclaim asserted by the original Defendant. The Plaintiff asserted that the counterclaim was barred by the applicable statute of limitations.

The original Defendant asserted that the property damage counterclaim was a “recoupment” which was not subject to the statute of limitations. The Defendant more specifically asserted that she was entitled to pursue her cause of action for property damage and obtain a recoupment against any award recovered by the Plaintiff in her capacity as a Plaintiff.

Judge Nealon reviewed the law and determined that the counterclaim for property damages in an automobile accident case was instead more properly defined as a “set-off” that would be governed by the same two year statute of limitations applicable to the Plaintiff’s personal injury claim. Since the counterclaim was not filed within two years of the date of the accident, the counterclaim was found to be barred by the Court.

Anyone desiring a copy of this decision may click on this link.