PLEASE MARK YOUR CALENDAR FOR THE JUNE 9, 2025 LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Court Denies Plaintiff's Motion to Preclude Defendant From Utilizing Second Expert After First Expert Died

In the case of Roubert v. Amazon, No. 2:21-CV-03091-CMR (E.D. Pa. Feb. 24, 2025 Rufe, J.), the court addressed issues involving the death of a Defendant’s expert during the course of a personal injury civil litigation matter.

According to the Opinion, when the Defendant’s first medical expert passed away, the Plaintiff filed a Motion In Limine to preclude the medical testimony of the Defendant’s second expert as inadmissible under Federal Rule of Evidence 703 and/or to preclude that second expert from referencing or relying upon the expert report of the first expert.

The court ruled that a deceased physician’s expert opinion was still permitted to be utilized by subsequent experts in their testimony.

The court reasoned that it was common standard and practice for a doctor to review medical records and other reports when rendering their own diagnoses. Accordingly, the court found that it was proper for the Defendant’s new expert to rely upon the deceased expert’s report which was issued after the deceased expert had personally examined the Plaintiff. The court noted that this was proper given that the evaluation of medical records and reports is a liable method for an expert to form an expert opinion regarding a party’s medical condition.

The court also noted that the Plaintiff would not be prejudiced by the second expert’s testimony given that there was nothing improper about a medical report prepared solely for litigation.

The judge additionally confirmed that FRE 703 does not require that a party be able to cross-examine every author of a record upon which the testifying expert relies upon at trial. Any potential prejudice resulting from their new expert testifying regarding the deceased expert’s report could be mitigated by cross-examination of the testifying doctor as to the basis of his opinion, by presenting contrary expert testimony, or by way of the presentation of careful instructions to the jury on the burden of proof.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article – “Fed. Court OKs Use Of Deceased Expert’s Report In Medical Testimony,” by Riley Brennan of the Legal Intelligencer (Feb. 25, 2025).

Liability of Landowner to Passing Motorist for Falling Trees

In the case of Harris v. Felouzis, No. 85 WDA 2023 (Pa. Super. Feb. 10, 2025 Kunselman, J., Lazarus, J., and Bender, J.) (Op. by Kunselman, J.) (Bender, J., dissenting), the court affirmed the entry of a judgment in favor of a Plaintiff in a case involving a Plaintiff motorist who was injured when a 110 year old oak tree fell from a Defendant’s property onto an adjacent road.

The issue was, as Judge Bender aptly put it in his Dissenting Opinion, "[i]f a tree falls on a busy road and injures someone, does it automatically sound in negligence?"

In this case, the court reaffirmed Pennsylvania law that holds that a landowner that allows trees to grow on the property unchecked can be held liable in negligence to motorists injured when a tree falls onto an adjacent road. The court noted that no visible defect in the tree or expert testimony is required. Rather, the standard is reasonable care under the circumstances.

The court noted that, if the condition of the tree could have been known by the exercise of ordinary care, then the Defendant landowner must exercise reasonable care to prevent the tree from falling and injuring anyone who may be using the adjacent road. The law puts the burden on the landowners given that the landowners have access to their own property and the passing motorists do not.

The court noted that the public right of passage on roadways carries with it once the highways have been established, and obligation on occupiers of abutting land to use reasonable care to ensure that the passage way is safe.

Landowners are not allowed to simply let nature take its course.

The Court otherwise rejected the notion that all motorists who use the roadways assume the risk of trees falling upon them.  

This decision is also notable for the Superior Court’s noting that a Motion for Summary Judgment that was denied based upon the sufficiency of the evidence is superseded by the trial record and cannot be separately appealed once a verdict has been entered.

Anyone wishing to review a copy of this decision may click this LINK.

Judge Bender's Dissenting Opinion can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Mick Haupt on www.unsplash.com.

Abington Heights High School Mock Trial Team From Clarks Summit, PA Regional Champs and Going Back to States

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their Regional Championship Trial last night and are on their way to the State Championship.

This is the 4th Regional Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This Regional Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Below is a picture of the entire Team celebrating their win last night in Courtroom 1 of the Federal Middle District Courthouse in Scranton, PA. That's Judge Karoline Mehalchick, who presided over the trial, in the center under the Seal of the Court. Sending thanks to Judge Mehalchick for volunteering her time and expertise.

Also sending thanks to Mackenzie Wilson of Munley Law in Scranton for all of her time and effort serving as the District Coordinator and Regional Coordinator for the Competition. Also sending thanks to the Young Lawyers Divisions of both the Lackawanna Bar Association and the Pennsylvania Bar Association for running this Competition which changes students lives and helps to prepare them for their futures.

Summary Judgment Granted in Alleged Trip and Fall Case Based on Trivial Defect Doctrine

In the case of Klobusnik v. Cafaro Company, No. 2021-CV-11132 (C.P. Erie Co. Dec. 31, 2024 Walsh, J.), the court granted the Defendant mall summary judgment in a slip and fall case.

According to the Opinion, the Plaintiff was walking on the premises and alleged that her foot hit the edge of a lifted tile on the floor which allegedly caused her to fall down.

After reviewing the record before it, the court noted that the Plaintiff presented photographic evidence purportedly showing a raised tile in the area where she fell. However, the Plaintiff admitted that she did not know exactly where she fell. The Plaintiff asserted that she tripped over the tile in the photograph or a similar tile.

The record revealed that the photograph of the tile in question showed a ruler with both metric and imperial units stationed in the grout line between two (2) tiles. The imperial measurement was below the “0” inch line. The metric measurement was at the “1” millimeter line.

As such, the court granted summary judgment after finding that the Plaintiff’s claims were barred by the trivial defect doctrine. The court also found that the Plaintiff’s claims were barred by the fact that the Plaintiff could not identify the exact tile that caused her to fall. The court noted that the evidence fairly suggested that it was just as likely that the Plaintiff had tripped over the grip of her own shoe on the tile, as opposed to catching her foot on the edge of an allegedly raised tile.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Mitchell Luo on www.unsplash.com.

Motion To Dismiss Granted in Favor of Lyft in Case Where Lyft Driver Assaulted Passenger

In the case of Matos v. Uber Technologies, Inc., No. 23-5038-KSM (E.D. Pa. Feb. 3, 2025 Marston, J.), the court granted a Motion to Dismiss filed by a ride share Defendant in a case where the Plaintiff passenger was assaulted by the driver.

The court noted that, under Pennsylvania law, a ride share Defendant is not automatically liable anytime a driver hired over its App commits an assault.

The Plaintiff was noted to have failed to pled prior bad acts of the driver that should have put the Defendant on notice of the driver’s alleged dangerous propensities as required to prove a claim of negligent hiring.

The court noted that evidence of prior automobile accidents by the driver are not proof of violent propensities.

The court additionally found that there was no independent action for respondeat superior under the facts alleged.

The court additionally found that the act of assault passengers was not within the scope of a ride share driver’s employment.

The court otherwise found that the Plaintiff did not allege facts sufficient to establish a duty to train a driver on something as elementary as not assaulting passengers.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Superior Court Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 2025).