Court Addresses Admissibility of Expert Opinions

In the case of Twigg v. Varsity Brands Holding Co., No. 4:23-CV-00067 (M.D. Pa. March 7, 2025 Brann, C.J.), the court provided the latest pronouncement on the Rules of Admissibility for an expert witness under Federal Rule of Evidence 702.

This products liability case arose out of an accident during which a baseball coach was struck by a batted ball that went through an L-screen net while he was pitching batting practice.

In his decision in this case Chief Judge Matthew W. Brann granted in part and denied in part Rule 702 motions regarding experts in the case. In so ruling, the court noted the following principles of law.

An expert’s lack of technical background does not render an expert unqualified where that expert has sufficient practical experience.

The court also ruled that an expert need not have familiarity with a product in order to evaluate the adequacy of a manufacturer’s testing protocols.

The court also noted that an expert may rely solely upon material provided to the expert by counsel. However, that expert is not permitted to rely upon material that has not been disclosed to the opposing party.

The court also reaffirmed the rule that an expert may not testify about matters outside the scope of their opinions.

The court also noted that experts may assume the truth of the contested facts asserted by the parties who hired them. The weight of such opinions depends on how the jury ultimately views the underlying facts.

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 office in Philadelphia for bringing this case to my attention.

Federal Court Remands Case To State Court After Finding Diversity Jurisdiction Defeated by Joinder of Store Manager as a Defendant

In the case of Jones v. Wal-Mart Stores East, LP, No. 2:24-CV-05521-KNS (E.D. Pa. Feb. 4, 2025 Scott, J.), the court granted a Plaintiff’s Motion to Remand this case from federal court back to the Philadelphia Court of Common Pleas.

According to the Opinion, this case arose out a trip and fall case that occurred at a Wal-Mart store.

The Plaintiff filed the lawsuit in the Philadelphia Court of Common Pleas. The Plaintiff sued Wal-Mart and the store manager.

Wal-Mart removed the case to federal court asserting that the store manager Defendant was fraudulently joined and that, therefore, the requirements for a federal diversity jurisdiction were satisfied.

The federal court disagreed and held that remand was required where complete diversity jurisdiction did not exist in light of the fact that the Plaintiff had asserted a valid negligence claims against an individual store manger who, like the Plaintiff, was a Pennsylvania citizen.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (March 7, 2025).

Court Finds That Arbitration Agreement on a Website Was Invalid as it Was Not Conspicuously Noted

In the case of W.W. v. Allegheny Health Network, No. 2:23-CV-01163-CCW (W.D. Pa. Feb. 27, 2025 Wiegand, J.), the court denied a Defendant’s Motion to Compel Arbitration of the Plaintiff’s claims after finding that the Arbitration Agreement, which was contained in a document that could be accessed through a link to the Defendant’s website, was not sufficiently conspicuous enough to put the Plaintiff on notice that the Plaintiff was agreeing to Arbitration.

According to the Opinion, in this matter, the Plaintiff alleged that Alleghany Health Network unlawfully collected confidential health information from users to visited the Defendant’s website and then disclosed the visitor’s information to third parties in violation of federal and state law.

In response to the Complaint filed, the Defendant moved to compel Arbitration pursuant to the Arbitration Agreement appearing in the network’s Terms of Service, a link to which appeared on the Defendant’s website.

The court determined that the Arbitration Agreement was not valid because the Plaintiff did not have actual or constructive notice of the agreement.

The Defendant had contended that the continued use of the website by visitors constituted acceptance of the terms of service contained in the link on the website.

According to the Opinion, the Plaintiff denied ever seeing the terms at issue or clicking the link to the terms of the Arbitration Agreement. As such, the Plaintiff asserted that there was no valid contract because he was never aware of the Arbitration Agreement since he never read, reviewed, or opened the Terms of Service.

In ruling in favor of the Plaintiff, the court noted that the Defendant’s Terms of Service do not require or allow users to ‘signed’ the Terms of Service, thereby calling into question whether or to the Plaintiff ever saw the Terms of Service at issue. The court additionally found that the link itself to the Terms of Service was not sufficiently conspicuous.

The court also noted that the Defendant failed to have an “explicit textual notice” informing visitors to the site that the continued use of the website constituted acceptance of the terms. Here, visitors to the website had to scroll past numerous sections of content to even reach a footer that contained the link to the terms of service. Once a visitor got to that area of the website, the link at issue was one of over forty other links in the footer. As such, the court found that the link at issue and/or the Terms of Service themselves, were not reasonably conspicuous.

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

Source: Article – “Arbitration Agreement Linked On Healthcare Website Isn’t Binding, Fed. Judge Rules,” By Riley Brennan of the Pennsylvania Law Weekly (Feb. 28, 2025).

Source of image:  Photo by Christin Hume on www.unsplash.com.

PLEASE CONSIDER REGISTERING TO ATTEND THIS UPCOMING CLE LIVE OR VIRTUALLY

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Medical Battery Claim Dismissed From Medical Malpractice Case

In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.

In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.

The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.

The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.

However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.

The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.

Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.

The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 6, 2025).

You've Got To Know When To Hold 'Em, Know When to Fold 'Em

In the case of Dhaduk v. Patel, No. 2024-CV-5196 (C.P. Lacka. Co. March 31, 2025 Nealon, J.), the court granted demurrers against a Plaintiff’s claim in a case arising out of a neurologist and his wife who sued an internist seeking to recover $700,000.00 for gambling losses that allegedly occurred at a Florida casino.

The Plaintiffs allege that the neurologist agreed to play blackjack on behalf of the internist with the express understanding that the internist would be responsible for any resulting gambling losses suffered by the neurologist in the process. The Plaintiffs claimed that the internist had not reimbursed the neurologist for $200,000.00 for chips that the neurologist purchased and lost and for an additional $500,000.00 that the neurologist obtained from his casino line of credit and ultimately lost playing blackjack.

According to the Opinion, the Defendant doctor filed demurrers to the Plaintiff's claims of breach of contract, promissory estoppel, fraud, and unjust enrichment. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a lengthy Opinion outlining the current status of the law on these types of claims in the context of request for payment of gambling indebtedness.

Judge Nealon noted that, unlike other states with comparable statutes barring the collection of gambling debts and voiding any contracts for the payment of gambling indebtedness, the Pennsylvania legislature has never amended the Pennsylvania prohibitory statute in order to restrict its debt collection ban to illegal gambling or to create an exception for debts resulting from lawful gambling activities. 

Judge Nealon confirmed that the law in Pennsylvania remains that gambling debts between private individuals are uncollectible and that any related contracts regarding gambling are void.

As such, based upon the plain language of the applicable Pennsylvania statute, as well as a review of Florida’s corresponding statute, the court ruled that the Defendant could not be found liable in this case. Accordingly, the Defendant’s demurrers to all of the claims asserted by the Plaintiff were sustained.

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

Source of image: Photo by Anna Shvets on www.pexels.com.

New Rule Requiring Judges To Be In Courtroom For Jury Selection Goes Into Effect

The Pennsylvania Supreme Court's amendment of the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement goes into effect today, April 1, 2025.

This Rule can be found under Pa. R.C.P. 220.3 and can be seen at this LINK.

Here is a LINK to my article on this topic that appeared in the Pennsylvania Lawyer magazine five years ago in a March/April 2020 edition of the magazine.  The article reviews the jurisprudence on the issue back then, which jurisprudence has since led to the current amendment to the Pennsylvania Rules of Civil Procedure regarding voir dire.  The article also reviews the benefits of having a Judge stay on the bench during voir dire, especially for the prospective members of the jury.

Source of image:  Photo by Nothing Ahead on www.pexels.com.