by Mark Bauman | Mar 19, 2023 | Legal News, Other News
On July 22, 2008, U.S. District Judge James M. Munley of the Middle District of Pennsylvania issued an opinion in Grosek v. Pather Transportation, Inc. requiring the Defendant to produce documents related to punitive damages in the discovery phase of litigation before a determination was made that punitive damages are warranted.
In Grosek, The Defendants sought a Protective Order pursuant to Federal Rule of Civil Procedure 26(c) which would have prevented Plaintiff from conducting any discovery on the Plaintiffs’ financial condition until a jury concluded that punitive damages are warranted in the case. Defendants also argued that their financial condition cannot be relevant until a determination has been made that punitive damages are appropriate.
In declining to issue the Protective Order, the Court reasoned that “Defendants have demonstrated no prejudice which would occur from allowing discovery” and also noted that “the weight of authority requires a Defendant to disclose his financial condition in pretrial discovery when punitive damages are required.” The Court distinguished those cases cited by Defendants on the basis that they stand for the proposition that discovery is not permitted in determining whether a defendant has the means to satisfy a judgment. The Court also directed the parties to enter into a confidentiality agreement which would protect the disclosure of the financial condition of Defendants.
by Mark Bauman | Mar 18, 2023 | Legal News, Other News
The Superior Court of Pennsylvania overturned an order for summary judgment on appeal to the extent that it nullified a reservation of rights clause contained in a release signed by appellant. In Maloney v. Prendergrast, appellant’s suit centered primarily on the treating physician negligently failing to disclose a lesion on the right scapula of the appellant’s decedent from a 1988 x-ray. Appellant executed a joint tortfeasor release with appellees which provided that, in acceptance of an amount of money paid, appellant released appellees from further liability. However, there was a provision regarding the treating physician that reduced his liability based on a pro rata share of legal responsibility or legal liability for which each appellee was found to be liable. Appellees filed for summary judgment asserting that the language of the release operated to insulate them from liability so that all claims against them should be dismissed. The trial court agreed. On appeal, appellant asserted that a reservation of rights provision in the release only discharged the medical facilities from direct liability while preserving issues of vicarious liability against them and that the treating physician was not so insulated.
The court followed the Uniform Contribution Among Tortfeasors ACT (UCATA), 42 Pa.C.S.A § 8326 contract law principles in finding in favor of appellants. Section 8326 of the Act provides that discharge of one joint tortfeasor does not operate to discharge the other(s) unless so specified in the release. The words of the release specifically and comprehensively effectuate the discharge of all listed health care providers save the treating physician by encompassing any and all acts capable of incurring either direct or indirect liability which extinguished all of appellant’s claims against appellees other than that of the treating physician.
The law pertaining to releases is well settled: “it is axiomatic that releases are construed in accordance with traditional principles of contract law, fundamental to which is the directive that, ‘the effect of a release must be determined from the ordinary meaning of its language.'” Clark v. Philadelphia College of Osteopathic Medicine, 693 A.2d 202, 207 (Pa. Super. 1997), appeal dismissed as improvidently granted, 557 Pa. 487, 734 A.2d 859 (Pa. 1999) [**7] (citing Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733, 735 (Pa. 1989)). Moreover, Pennsylvania contract law prescribes that, “an interpretation will not be given to one part of the contract which will annul another part of it.” Capek v. Devito, 564 Pa. 267, 767 A.2d 1047, 1050 (Pa. 2001). Further, Pennsylvania contract law, recognizing that the intention of the parties is paramount in any interpretive effort, explains that the court should adopt a construction “which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Tuscarora Wayne Mutual Ins. Co. v. Kadlubosky, 2005 PA Super 402, 889 A.2d 557, 563 (Pa. Super. 2005).
Here, the trial court’s interpretation not only annuls a major portion of the Release, but ignores the express objective of the settlement, that is, to limit further litigation while not forestalling it completely. Accordingly, the court vacated the summary judgment order and remanded for further proceedings consistent with the court’s opinion.
by Mark Bauman | Mar 17, 2023 | Legal News, Other News
Recently, the Supreme Court of Pennsylvania promulgated new Rules of Civil Procedure dealing with cross claims and joinder, certificates of merit, and notice of intent to file non pros. These rules are effective immediately.
1. Cross Claims & Joinder:
Effective June 1, 2007, all cross claims are governed by Pa.R.C.P. 1031.1 – Crossclaim. Prior to this, such claims were governed by Pa.R.C.P. 2252. Right to Join Additional Defendants, specifically under subdivision (d), now rescinded.
Under the newly amended Pa. R.C.P. 2252, Joinder of Additional Defendants is limited to the joinder of persons not already parties to the action.
2. Certificates of Merit:
According to the newly amended Pa.R.C.P. 1042.3(c)(2), similar to the Rule regarding a Defendant who joins a licensed professional as an Additional Defendant, a Defendant who asserts a cross claim against a licensed professional must file a certificate of merit if the cross claim is based on negligence that is unrelated to the acts of negligence that are the basis for the claims against the cross claiming party.
3. Notice Of Intent To File Non Pros:
Newly enacted Pa.R.C.P. 1042.6, requires a Defendant to give a thirty (30) day Notice before filing a Praecipe for a judgment of non pros for failing to file a certificate of merit. Under the new Rule, notice does not need to be given where the court has granted an extension of time to file a certificate of merit and the plaintiff fails to do so or where the court denies a motion to extend time for such filing. Pa. R.C.P. 1042.6(b). If a notice is filed, the plaintiff may file a motion to seek “a determination by the court that the filing of a certificate of merit is not required.” Filing such a motion will toll the time period for which the certificate of merit must be filed until a ruling is rendered. Pa.R.C.P. 1042.6(c). However, if it is determined that a certificate of merit is required, the new Rule provides that the certificate of merit must be filed within twenty (20) days of the entry of the order or the original time period, whichever is later – thereby, potentially providing plaintiff with additional time to file the certificate of merit.
The Rule pertaining to entry of judgment of non pros (formerly Pa.R.C.P. 1042.6, now Pa.R.C.P. 1042.7) has also been amended to conform to the new notice Rules.
by Mark Bauman | Mar 16, 2023 | Legal News, Other News
In June 2006, Governor Rendell signed into law amendments to the Pennsylvania Mechanics’ Lien Law of 1963. While these amendments change several aspects of the 1963 law, the most significant changes were made with regard to waivers of mechanics’ liens. Specifically, the amendments slightly change the technical requirements for filing and perfecting a mechanics’ lien, and extend the right to file a mechanics’ lien to sub-contractors. More importantly, the amendments render a mechanics’ lien waiver, given in advance of receipt of actual payment for work, unenforceable in non-residential construction projects.
However, certain exceptions do apply. For example, the “residential project exception” allows contractors and subcontractors to waive their lien rights on a residential project if the total contract price between the owner and the contractor is less than $1 million. A second exception, the “payment bond exception,” allows a subcontractor to waive its lien rights on all nonresidential projects and on residential projects of $1 million or more, if the contractor posts a payment bond for labor and materials.
Overall, the amendments are “contractor-oriented.” However, protection to certain lenders are also provided by amendments that grant purchase money mortgages and certain open-end mortgages “super-priority” over mechanics’ lien claims. The amendments to the Pennsylvania Mechanics’ Lien Law of 1963 will take effect January 1, 2007.
For more information, see the Mechanics’ Lien Law of 1963, 49 P.S. § 1101, et. seq.
by Mark Bauman | Mar 14, 2023 | Legal News, Other News
Rule 238 of the Pennsylvania Rules of Civil Procedure concerning delay damages was amended recently to incorporate the Superior Court’s requirements in Sonlin v. Abington Memorial Hospital, 748 A.2d 213 (Pa. Super. 2000).
The new rule incorporates three requirements established by the Sonlin case to bring an offer of settlement within the exclusion of the rule concerning the calculation of delay damages. Specifically, for the exclusion to apply, the offer of settlement must be in writing and must contain an express clause validating the offer for 90 days or until the commencement of trial, whichever occurs first. If the offer is a structured settlement, the terms of payment underwritten by a financially responsible entity, the underwriter and the cost must be disclosed.
by Mark Bauman | Mar 13, 2023 | Legal News, Other News
In Hohns v. Gain, M.D., ___ A.2d. ___ (Pa. Super. 2002), the plaintiff sued a surgeon for failure to obtain informed consent prior to the performance of a repeat breast biopsy. The plaintiff had previously undergone breast biopsies in the late 1980s due to a positive family history of breast cancer. One of her prior biopsies was positive for carcinoma in situ after which an additional biopsy was performed to assure that there was no additional cancerous tissue. The biopsy at issue was performed in 1997 after the plaintiff developed breast firmness. The biopsy was recommended to rule out the recurrence of cancer. The plaintiff alleged that she suffered an inferior cosmetic result requiring reconstructive surgery. She alleged that she was not told that substantial disfigurement could result and had she been told, she would have obtained more information and would not have come to any quick decisions about having the biopsy.
A trial, the jury determined that while the doctor failed to obtain informed consent, the failure was not a substantial factor in bringing about the harm. On appeal, the Superior Court agreed. It found that the plaintiff’s overriding reason for having the biopsy was because she wanted to be sure that she was 100% cancer free. According to the Court, “if other factors completely dominate the patient’s decision to proceed with a procedure, [the] lack of information cannot be deemed substantial.”
This case illustrates that claims for failure to obtain informed consent cannot be looked at in a vacuum and that it is helpful to consider other factors which contribute to a patient’s consent and the effect that the other factors bear on producing that consent.
