Partial Summary Judgment Granted in favor of Pharmacist

In the case of Wolking v. Linder, No. 3:23-CV-806 (M.D. Pa. Aug. 8, 2024 Mannion, J.), the court granted partial summary judgment in a case involving a negligence action against pharmacists.

The court ruled that pharmacists owe a duty of care to their patients to act on obvious facial discrepancies with prescriptions.

In this matter, the court dismissed the Plaintiff’s allegations of punitive damages given that the Plaintiffs had not produced evidence in support thereof,

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

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

Source of image:  Photo by Alexander Grey on www.pexels.com.

Dead Man's Act Still Alive And Well

Although the Dead Man's Act is riddled with exceptions, it can still sometimes apply to dramatically affect a case.

In the case of Loeffler v. Douglass, No. CI-22-00454 (C.P. Lanc. Co. Aug. 13, 2024 Brown, J.), the Court held that the Dead Man’ s Act applied to prevent a plaintiff from testifying as to any element of negligence. 

The Dead Man's Act precludes "any person whose interest shall be adverse" to the interests of the deceased party from testifying "to any matter occurring before the death" of the deceased.  42 Pa.C.S.A.  Section 5930.  The Act was passed to prevent the injustice that may arise from permitting a surviving adverse party to give testimony that is favorable to himself or herself and to the detriment of the decedent's interest and that the decedent's representative cannot rebut.

This case arose out of a motor vehicle accident. The plaintiff filed suit against the allegedly negligent defendant driver. 

The defendant-driver served plaintiff with interrogatories and requests for production of documents. 

Thereafter, before plaintiff responded to defendant's discovery, the defendant driver died.  Counsel for the defendant-driver withdrew the discovery. 

Subsequently, the administrator of the estate of the defendant driver was substituted as a defendant. 

The defendant administrator served plaintiff with requests for production of documents and served several non-parties with subpoenas.  Notably, the defense did not serve interrogatories and had not yet requested any depositions.  The defendant administrator also filed a motion in limine, based on the Dead Man’s Act, to preclude plaintiff from testifying as to any element of negligence. 

The plaintiff claimed that the protections of the Dead Man’s Act had been waived by virtue of the discovery which had taken place. 

The Court rejected these arguments and found that neither the type discovery propounded by the defendant-driver, while alive, nor the discovery propounded by the defendant administrator after the death of the defendant-driver served to waive the protections afforded by the Dead Man’s Act.  The Court reviewed the Dead Man's Rule and emphasized that here, the defense had not served interrogatories and had not yet requested testimony by any other means.  As such, the discovery waiver did not apply because the defense had not requested any testimony with the discovery requests propounded.

Accordingly, based on an application of the Dead Man's Act, the Court held that plaintiff was precluded from testifying as to any element of negligence.  The Court added that, if plaintiff could establish a prima facie case of negligence by other means, then plaintiff would be allowed to testify about the extent of plaintiff’s damages.

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

I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLC for bringing this case to my attention.

Presenting at Monroe County Bench Bar - Early Bird Registration Open - Non-members Welcome

 

Monroe County Bench Bar Conference

Friday, October 4, 2024

Northampton Community College-Pocono Campus

Early Bird Registration is OPEN!

Click here for a list of sessions* and presenters. *Schedule subject to change.

[Daniel E. Cummins and Paul T. Oven presenting 2024 Civil Litigation Update]

To register and pay on-line go to monroebar.org or

scan the QR code below.

On-line purchases are subject to processing fees.

If you choose not to register/pay on-line, email Paige at info2@monroebar.org with attendee name(s). Checks may be mailed to MCBA, 913 Main Street, Stroudsburg PA 18360 or call MCBA to pay via credit card over the phone.

Non-members are welcome to attend.  

Non-members may use the below contact information for any questions on how to register

Questions? Please call 570.424.7288 or email MCBA.

Summary Judgment Granted in Premises Liability Case Due to Lack of Actual or Constructive Notice

In the case of Cummins v. Wal-Mart Stores East, L.P., No. 1:22-CV-01205(M.D. Pa. July 24, 2024 Schwab, Mag. J.), the court granted a Motion for Summary Judgment in a slip and fall case after finding that the Plaintiff failed to produce any evidence of actual or constructive notice of any allegedly defective condition on the part of the store.

The court noted that the record confirmed that the lack of actual notice was not disputed. In terms of any allegation of construction notice, the court confirmed that there was no evidence that the claimed spill had existed for a significant period of time such as evidence of any footprints through the area.

The court also ruled that the fact that the spill was allegedly in multiple aisles did not, in and of itself, establish a duration of the subject spill.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


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

Summary Judgment Granted in Case Where Plaintiff Did Not Know What Caused Her to Fall

What caused you to fall?

In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa. Super. Aug. 2, 2024 Olson, J., Stabile, J., and McLaughlin, J.) (Op. by Olson, J.), the court affirmed the entry of summary judgment in a premises liability fall down case.

According to the Opinion, the Plaintiff denied knowing what caused her to fall at a brew pub and offered no other factual evidence in support of her claims presented.

According to the Opinion, the Plaintiff confirmed that there was no food or liquid on the floor that could have caused her to fall.  Although she initially suggested that her fall may have been caused by uneven floor tiles, or an uplifted section of a floor mat, or a wave in a floor mat, she confirmed that she was not certain.  

The Plaintiff then testified that uneven floor tiles did not cause her to fall and that perhaps she instead fell due to the heel of her shoe catching a rubber edge of a floor mat.  The Plaintiff confirme that she did not know how her heel might have caught the rubber edge of a mat or whether or not the edge of that rubber mat was sticking up at the time she allegedly encountered it.

The court additionally noted that the trial court had properly precluded the Plaintiff’s liability expert because that expert’s opinion expressed no specialized knowledge, failed to explain the expert’s conclusions with specific references to cited standards, and where the expert failed to offer opinions specifically tailored to the facts established by the record. 

With regards to spoliation issues raised by the Plaintiff in this matter, the court indicated that the record revealed that no notice was given to the Defendant about the need for the videos until after the surveillance videotapes were routinely overwritten.

The court emphasized that the duty to preserve evidence is not boundless.

It was also emphasized that a deleted video causes little prejudice to a litigant who has no proof of liability such as was the case in this matter. The court noted that absent any affirmative evidence of liability, spoliation allegations in and of themselves cannot take the place of carrying the Plaintiff’s burden of proof on the liability issues presented.

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


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

Lessons In Federal Court Complaint Drafting

In the case of Fike v. Global Pharma Healthcare Private, Ltd., No. 5:23-CV-2981 (E.D. Pa. July 18, 2024 Leeson, J.), the court granted in part and denied in part a Motion to Dismiss filed by Amazon in a products liability case.

In his decision, Judge Leeson ruled that the Complaint was sufficiently pled so as to avoid dismissal under an argument of a shotgun pleading. However, the court noted that the allegations against “Defendants” were improperly grouped together.

The court also struck the Plaintiff’s claims alleging a post-sale duty to recall in this products liability case since no such claim is recognized under Pennsylvania law.

The court additionally ruled that shippers or distributors of products do not owe a duty of inspection or investigation into the products that they ship on to customers.

In this case, the court noted that the risk of a bacterial contamination from the product at issue was not foreseeable as to impose a duty upon the shipper. Imposing such an inspection duty on a shipper could hamper the shipper’s ability to distribute and ship products, which is an extremely socially useful service provided to the public at large.

The court additionally struck the punitive damages claim alleged by finding that punitive damages allegations cannot be based on allegations presented “on information and belief.”

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


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

Source of image:  Photo by Christian Wiediger on www.unsplash.com.

Federal District Judge Crafts Sanction for Discovery Violations

In the case of Domus BWW Funding, LLC v. Arch Ins. Co., No. 2:23-CV-00094-JDW (E.D. Pa. Aug. 12, 2024 Wolson, J.), the court issued discovery sanctions against the Defendant insurance company related to discovery issues and “sloppy” discovery responses by the carrier. The court declined to impose a monetary sanction and instead decided to create jury instructions regarding the carrier’s actions.

More specifically, the court noted that the deletion of emails during discovery was considered troubling but was also procedural as the insurance company underwent a company wide transition.

In the end, the carrier was hit for sanctions due to his “cavalier attitude” towards its discovery obligations after the carrier was found to have failed to preserve evidence related to the lawsuit.

The judge imposed sanctions under FRCP 37(e)(1) after finding that the Plaintiff was prejudiced by the carrier’s deletion of emails by an underwriter of the policy at issue. As a remedy, the court noted that it was craft appropriate jury instruction regarding evidence of the insurance company’s failure to preserve the emails.

In his decision, the court also faulted the Plaintiff for not bringing the issues to the attention of the court until a summary judgment motion was filed. The court noted that a post-hoc Motion for Sanctions is not the appropriate vehicle to address the prejudice of the insurance company’s negligent approach towards the discovery obligations.

Judge Wolson noted that, although the discovery may, at times, amount to drudgery that lawyers may not enjoy, lawyers have an obligation to take their discovery duties seriously.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


Source: Article - “Citing ‘Sloppy’ Discovery, Pa. Federal Judge Imposes Sanctions on Insurance Carrier, Calls Out Counsel,” By Marianna Wharry of the Legal Intelligencer (Aug. 15, 2024).