by Mark Bauman | Mar 23, 2023 | Legal News, Other News
The Supreme Court of Pennsylvania recently overturned the Superior Court’s reversal of a trial court’s decision to transfer a case from Philadelphia to Dauphin County. In doing so, the Supreme Court lowered the bar for defendants to show a venue change is proper based on forum non conveniens.
In Bratic v. Rubendall, the plaintiff originally brought suit in Philadelphia County and was met with a motion for change of venue from defendants. Defendants argued venue transfer was warranted because eight of their witnesses were located in Dauphin County. Plaintiff argued the affidavits provided by defendants were lacking in detail and were repetitive. Judge Eakin ultimately agreed with the defendants.
Under the then existing law as outlined in Cheeseman v. Legal Exterminator, a change of venue was only warranted when the plaintiff’s choice of venue was “vexatious and oppressive” – a high burden for defendants to overcome. In the Bratic opinion, Judge Eakin explained that the standard of “vexatious and oppressive” does not require the defendants to provide detailed specifics about how the chosen venue would impact the parties. He further explained that trial courts have the discretion to balance several factors, including distance traveled and court congestion, to make the determination of whether a venue change is warranted.
It is yet to be seen whether this “lowering of the bar” will lead to an increase in forum non conveniens motions. Plaintiffs’ attorneys believe there will be a surge of forum non conveniens motions, while defense attorneys maintain that these motions have routinely been filed in the past, despite the heavy burden of Cheeseman. Since the Bratic decision, it is anticipated that trial judges will have more confidence granting forum non conveniens motions and that their decision after weighing the relevant factors will be affirmed.
While the Bratic decision may impact personal injury and motor vehicle litigation, it will not affect medical malpractice cases. Section 1303.514 of the Medical Care Availability and Reduction of Error Act requires the creation of an Interbranch Commission on Venue, which has resulted in a change in the rules of civil procedure. Pennsylvania Rule of Civil Procedure 1006 now provides that medical professional liability claims must be brought in the county in which the cause of action arose, or any county where there can be venue against one of the providers in cases of multiple healthcare providers as defendants.
by Mark Bauman | Mar 22, 2023 | Legal News, Other News
On June 6, 2012, the Pennsylvania Supreme Court entered an order amending the Pennsylvania Rules of Civil Procedure for production of documents and things, 4009.1, et seq. and 4011, to provide for discovery of “electronically stored information.” The amendments take effect on August 1, 2012. Specifically, the term “electronically stored information” has replaced the prior language in Rule 4009.1 referring to “electronically created data . . .” The amendments to Rule 4009.1 further provide that the party requesting electronically stored information may specify the format in which it is to be produced. However, the party or non-party to whom the request is directed has the right to object to the request. If no format is specified by the requestor, the electronically stored information is to be produced in the form in which it is ordinarily maintained or in a reasonably usable form. Additionally, an explanatory note has been added to Rule 4009.11 which states that a request for electronically stored information “should be as specific as possible.” The note further places emphasis on limitations as to time and scope, and favors agreements between the parties. Rules 4009.12, 4009.21, 4009.23, and 4011 were amended to include a note referencing the changes to Rule 4009.1.
The term “electronically stored information” is also found in the Federal Rules of Civil Procedure, but the Supreme Court has cautioned that the change in language to Rules 4009.1 et seq. are not intended to incorporate the federal interpretation of the term. Rather, in Pennsylvania, discovery of “electronically stored information” will continue to be governed by the traditional principles of proportionality, i.e., the just, speedy and inexpensive determination and resolution of litigation disputes. Thus, in the event of a discovery dispute, this proportionality standard requires the courts to consider (i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.
Healthcare providers must keep in mind that producing “electronically stored information” during discovery is about more than printing off copies of email messages – it is the entire process of accessing, using and preserving information, data, and records created or maintained in electronic form and can be extremely costly. For a healthcare provider, discovery of electronic data could involve the process of identifying and validating the identity of every user of a patient’s electronic medical record. It can also involve searching and analyzing the data behind the data, known as “metadata.”
The Supreme Court, in maintaining the proportionality standard, has specifically recognized that not all electronic information is reasonably accessible and may be costly to produce. Thus, there is an exception to production of electronically stored information that would relieve a party from having to disclose electronically stored information that is not “reasonably accessible,” that is, information that would be costly and burdensome to produce. If this objection is raised; however, the healthcare provider and/or its lawyer must be able to explain why certain data is not reasonably accessible and then document the true cost and burdens of producing the data being requested.
by Mark Bauman | Mar 22, 2023 | Legal News, Other News
Pursuant to an order issued on March 26, 2013, the Supreme Court has ruled that it will hear appellate arguments on the issue of whether the analysis of the Restatement (Third) of Torts should replace the strict liability analysis of the Second Restatement.
In the underlying case of Tincher v. Omega Flex, the defendant manufactured natural gas piping that was installed at the plaintiffs’ house. According to court papers, during the time at issue, the piping was damaged by lightning, which eventually caused the plaintiffs’ house to be damaged by fire. Following trial, the jury was instructed to follow the standard set forth in the Second Restatement and accordingly found in favor of the plaintiffs on a claim of strict liability. The defendant subsequently appealed and the Superior Court affirmed the judgment, holding that the trial court did not err by following the Second Restatement. Thereafter, a petition for allowance of appeal was filed regarding the application of the Third Restatement.
With regard to products liability law, Pennsylvania courts have traditionally adhered to Section 402A of the Second Restatement of Torts, which holds sellers “strictly liable” for harm caused to consumers by unreasonably dangerous products. In this regard, liability is attributed to sellers irrespective of any negligence, i.e. whether they exercised reasonable care, based on instead an analysis of defects within the product, the intended user, and his or her intended use of the product. The Third Restatement, on the other hand, rejects such a “no negligence” regime and holds sellers liable only for the sale of products determined to be “defective,” pursuant to various criteria which incorporate negligence concepts such as “foreseeable risk” and “care.” Notably, the Third Restatement also requires a showing of an alternative design, and whether utilization of such a design could have minimized or eliminated the risk of injury. While the additional elements of proof contained within the Third Restatement would appear to generally favor defendants, the law also benefits plaintiffs by allowing recovery for injured bystanders who are not the intended users of products.
The Supreme Court’s decision to hear the Tincher appeal is particularly significant due to several previous predictions by the U.S. Court of Appeals for the Third Circuit that the Court would adopt the Third Restatement as the applicable standard for addressing products liability. Such predictions notwithstanding, the Third Circuit has gone so far as to instruct the lower district courts to follow their precedent, given the lack of Supreme Court authority on the issue.
by Mark Bauman | Mar 21, 2023 | Legal News, Other News
The Civil Practice Rules Committee has made several recommendations for rule changes in New Jersey, which, if enacted, will affect the way lawsuits are handled in the state.
Two proposed amendments in particular affect pleadings. The first proposal would benefit plaintiffs by requiring the defendant doctor in a medical malpractice action to state his or her specialty in the answer to the complaint to ensure that the plaintiff obtained an affidavit of merit from an appropriate physician. The purpose of this amendment is to prevent plaintiffs from having their case dismissed for an improper affidavit of merit. The second proposed amendment would require personal injury plaintiffs to sign authorizations for the release of treating physicians’ medical records at the time of answering discovery. Receiving these authorizations from plaintiffs early in discovery would benefit defendants by relieving them of the burden of seeking signed releases later in the discovery process.
See N.J. Ct. R. 4: 5-3; See also N.J. Ct. R. 4:17-4.
by Mark Bauman | Mar 21, 2023 | Legal News, Other News
In a memorandum opinion, the District Court for the Eastern District of Pennsylvania held that the PA Department of Public Welfare (“DPW”) was not entitled to the full amount of its lien against the settlement between a plaintiff and the Philadelphia Housing Authority.
The case involved a minor plaintiff who suffered injuries as the result of the presence of mold in a subsidized home, which triggered an asthma attack resulting in permanent brain damage. The case settled for $11,913,000.00 prior to trial. DPW paid $1,265,896.00 for plaintiff’s medical treatment as a result of the injuries sustained. Plaintiff’s counsel reached out to DPW a number of times in an effort to negotiate the lien to no avail. The Court approved the settlement on June 15, 2010 and the parties placed $1,267,611.41 in escrow, which represented more than the total DPW lien. DPW filed a motion to vacate the settlement or in the alternative to intervene and attempted to assert a lien for the full amount. The Court denied the motion to vacate, however, it granted the motion to intervene and a hearing to determine the amount DPW may collect was held on August 5, 2010.
Plaintiff argued that DPW could only collect a limited amount of its lien based on its “ratio theory.” The true value of plaintiff’s claim was over $45 million and the $11.9 million settlement represented less than a third of that value. Thus, the amount DPW would be entitled to receive would be one third of the settlement minus costs and fees, which in this case was approximately $200,000.00.
DPW admits that its recovery for reimbursement is limited in that it cannot exceed one half of the beneficiary’s recovery after deducting fees and costs (and any medical expenses paid by the beneficiary). DPW argued that Pennsylvania law establishes a presumption that half of a plaintiff’s settlement is properly attributed to compensation for medical expenses and therefore, DPW can lawfully collect its full lien because that amount does not exceed half the total settlement.
The Court disagreed with both arguments. Plaintiff’s “ratio theory” would require the Court to hold mini-trials to determine the true value of a claim and would seriously undermine the economy of settlement. In addition, the Court noted that DPW’s argument ignores the compromise that is involved with a settlement. “When parties settle, everyone sacrifices. DPW’s suggestion that it does not need to sacrifice (unless its lien is for more than half of a plaintiff’s total recovery) ignores this reality.”
Instead, the Court determined that the proper approach was for the trial judge to assess the factors that would have influenced the parties’ settlement positions and to make an ultimate determination of what portion of the settlement represented compensation for past medical expenses. In the case at hand, the Court considered each side’s potential arguments at trial and determined that the plaintiff settled for two-thirds the value of the claim, and therefore, DPW was entitled to two-thirds of its $1,265,896.00 lien (minus fees and costs) which amounted to $537,448.43.
by Mark Bauman | Mar 20, 2023 | Legal News, Other News
In a per curiam opinion, the Superior Court of New Jersey, Appellate Division, affirmed the Law Division decision refusing to allocate proceeds following a settlement after a decision from a non-binding arbitration award which specifically allocated funds for medical expenses paid by Medicare.
In Ilse Theresa Jackson v. Hudson Court, LLC, et al., 2010 WL 2090036 (NJ Super. 2010), plaintiff sued several defendants as a result of a trip and fall. In her Complaint, she sought damages for permanent bodily injury and disability, pain and suffering, emotional distress and economic losses, including medical expenses paid by Medicare. The case was referred to nonbinding arbitration wherein the arbitrator awarded plaintiff $85,000. Of that award, the arbitrator specifically earmarked $30,000 as funds in satisfaction of the Medicare lien. Thereafter, the case settled for $85,000; however, plaintiff sought a court ordered allocation of the settlement proceeds and specifically requested that no portion of her personal injury settlement be attributable to her medical expenses. The Law Division denied plaintiff’s request and plaintiff appealed.
In her appeal, plaintiff argued that the collateral source rule (N.J.S.A. 2A:15-97) bars recovery by Medicare beneficiaries of medical expenses. She interpreted the statute to prohibit recovery of any benefits paid by a “source other than a joint tortfeasor.” Thus, she argued that “no plaintiff should be obligated to reimburse Medicare-covered expenses from money recovered as a result of a personal injury claim because otherwise Medicare beneficiaries would have to satisfy Medicare liens using funds awarded for pain and suffering, or for lost wages.” The Appellate Division disagreed with plaintiff holding that the collateral source rule does not apply to reimbursable benefits paid by Medicaid, nor Medicare. Citing to, Lusby ex rel. Nichols v. Hitchner, 273 N.J. Super. 578, 590 (App.Div. 1994). The Appellate Division further pointed out that plaintiff’s settlement, as allocated by the arbitrator, included a specific amount attributable for medical expenses, and thus, the lien would not unjustly be satisfied from her non-economic award.
