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In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa.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).

Save the Date: November 14, 2024 - Pro Bono Gala

 

Third Circuit Applies Regular Use Exclusion as a Valid Exclusion

In a recent non-precedential opinion issued by the United States Court of Appeals for the Third Circuit in the case of Eberly v. LM General Ins. Co., No. 21-2995 (3d Cir. Aug. 1, 2024),  that court determined that the regular use exclusion does not violate Section 1738 of the Motor Vehicle Financial Responsibility Law. 

In Eberly, the Third Circuit rejected the insured’s argument that Gallagher controls whether the regular use exclusions violate Section 1738 by acting as de facto waivers of stacking.

However, the Third Circuit noted that the Supreme Court, in the case of Rush v. Erie Insurance Exchange, had expressly rejected the argument that Gallagher stands for the proposition that “insurance policy provisions that conflict with the specific requirements of the MVFRL will be declared invalid and unenforceable.

The Third Circuit decided that the regular use exclusion does not act as a de facto waiver of stacked coverage because, in this case, Plaintiffs could still access stacked coverage on their cars and on any cars they drove provided they do not fit within any applicable exclusions to such coverage. 

However, the Third Circuit also noted that the regular use exclusion only applies in the limited circumstance presented in the case before it, that is, where the injured party was operating a vehicle which he did not own but that was provided to him for his regular use and which was not covered under the policy at issue.

As such, the Third Circuit ruled that the regular use exclusion did not violate Section 1738 of the MVFRL under the facts at issue in this matter.

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