eNotes Liability: January 2021

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Graham v. Check
Pennsylvania Supreme Court
No. 42 WAP 2019
Decided: December 22, 2020

The Pennsylvania Supreme Court declares that the sudden emergency doctrine is no longer a defense, but rather a factor in determining negligence.

Background

While it was still dark, Plaintiff-pedestrian was struck by Defendant’s car while walking at a normal pace and crossing a street within the crosswalk at a T-intersection. Defendant testified at trial that he did not see Plaintiff until he was approximately 7-10 feet away since it was dark out, Plaintiff was wearing dark clothing, and Defendant’s view was obstructed by the presence of another vehicle near the intersection. Although Defendant hit his brakes at, before, and/or after, the time he stuck Plaintiff, testimony at trial indicated that Defendant should have been able to see Plaintiff from 54 feet away. According to Defendant, he was traveling below the speed limit, but could not stop in time.

Defendant requested that the jury be charged on the sudden emergency defense. Over Plaintiff’s objection, the Court instructed the jury that they could find that Defendant was not negligent if he was confronted by a sudden emergency that was not of his making and that despite the sudden emergency, he acted reasonably in response to it. The jury returned a verdict in Defendant’s favor. Plaintiff’s Motion for post-trial relief were denied, judgment was entered in favor of the Defendant, and Plaintiff appealed. The Superior Court affirmed and Plaintiff filed a Petition for allowance of appeal to the Supreme Court, which granted allocator.

Holding

In a 5-2 decision, the Supreme Court held that the Trial Court erred in charging the jury on the sudden emergency defense since the trial record did not support the instruction. Pursuant to the Pennsylvania Motor Vehicle Code, Defendant had a higher duty to be vigilant when approaching a crosswalk under the circumstances and should have been on the lookout for a pedestrian at the location where Plaintiff eventually was struck. While Plaintiff did not request it, amicus counsel requested that the Court abolish the sudden emergency doctrine altogether, citing opinions from other jurisdictions that have rejected the defense. Although the Court deferred a ruling on that point for another time, and until it was properly raised by a party to an appeal from a fully developed trial record, the Court nevertheless opined that “a sudden emergency” is really not a defense at all, but is a factor to be considered by the jury in determining negligence in an appropriate case. The opinion of the Superior Court was reversed and the case remanded for a new trial without the taint of the sudden emergency instruction.

Questions about this case can be directed to Joe Holko at (610) 332-7005 or jholko@tthlaw.com.

Bourgeois v. Snow Time, Inc.
Pennsylvania Supreme Court
2020 Pa. LEXIS 6280
Decided: December 9, 2020

Pennsylvania Supreme Court reverses Superior Court’s affirmation of Trial Court’s grant of summary judgment because both Courts failed to view the Plaintiffs’ expert reports in the light most favorable to Plaintiffs and rejected the expert reports on the basis that they did not establish a duty and standard of care.

Background

Ray Bourgeios and his wife, Maryann, purchased Ski Roundtop snow tubing passes on February 16, 2013. As part of the purchase, each signed a release assuming all the risks of snow tubing and releasing Ski Roundtop from liability. The Bourgeoises completed several runs that same day. The next day, on February 17, 2013, Ray Bourgeios returned to Ski Roundtop. After completing several runs, he rode his snow tube in a prone position, head-first down the hill. His tube went over a flat deceleration mat (a kitchen anti-fatigue mat), which did not slow him down, before colliding with a second, folded mat, which caused his tube to stop abruptly. As a result of the collision, Mr. Bourgeios hyperextended his spinal cord, resulting in quadriplegia. The Bourgeioses filed suit against Snow Time and Ski Roundtop alleging claims for negligence, gross negligence and recklessness.

Ski Roundtop filed a Motion for summary judgment. The Trial Court granted the Motion, and, on appeal, the Superior Court affirmed. The Trial Court held that the release agreement barred the negligence claims. Plaintiffs did not produce sufficient evidence that Ski Roundtop had actual knowledge that folding the mats increased the risk of harm to its snow tubing patrons or that Ski Roundtop’s conduct was reckless or grossly negligent. The Superior Court held that the Plaintiffs did not establish a prima facie claim for recklessness or gross negligence. The Superior Court reasoned that the Plaintiffs failed to articulate an appropriate standard of care for the use of deceleration mats.

Holding

The Supreme Court found that the Superior Court erred by not viewing the Plaintiffs’ expert reports in the light most favorable to Plaintiffs. According to the Supreme Court, the expert reports presented genuine issues of material fact for a jury to resolve. Further, the Supreme Court found that the Superior Court erred by rejecting the expert reports on the basis that they did not establish a duty and standard of care. The resort had a duty to exercise reasonable care to bring its patrons to a safe stop at the end of their runs. In the reports, the experts analyzed how the resort breached its duty by failing to protect its patrons against unreasonable risks, while also increasing the risk of harm to its patrons through a number of conscious acts, including using folded deceleration mats in an inadequate run-out area under fast conditions. Accordingly, the entry of summary judgment was reversed.

Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or ahennessey@tthlaw.com.

McMichael v. McMichael
Pennsylvania Supreme Court
No. 50 WAP 2019, 2020 Pa. LEXIS 5893
Decided: November 18, 2020

Pennsylvania Supreme Court reverses jury award of zero dollars for non-economic damages which had no reasonable relation to the proffered evidence of the wife’s loss.

Background

Seth McMichael (“Decedent”) was killed by a falling tree cut by Michael Hudak while clearing a property for the installation of a natural gas pipeline. Decedent’s widow, Tina McMichael, filed a wrongful death and survival action. The jury awarded Decedent’s widow $225,000 in survival damages and zero dollars in wrongful death damages. Decedent’s widow appealed both awards. The Superior Court affirmed in part, and reversed in part, finding that the award of zero dollars for the wrongful death damages was improper as there was sufficient evidence of spousal services that were rendered by Decedent and, therefore, the services had value. As a result, the Superior Court remanded the issue of wrongful death damages. Decedent’s employer appealed to the Supreme Court.

Holding

The Supreme Court affirmed in part, and reversed in part. The Supreme Court found that, with regard to economic damages, the jury was permitted to discount spousal services provided by Decedent where Decedent’s spouse and her expert failed to provide specific values for the services. However, the Supreme Court held that non-economic damages, i.e. loss of “companionship, comfort, society, guidance, solace, and protection,” are compensable even though they do not have a mathematical formula in which to calculate their value. Therefore, the award of zero damages was improper. Accordingly, the matter was remanded for a new trial on damages for wrongful death, limited to non-economic damages.

Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or jdanko@tthlaw.com.

Heimbecker v. Trevlyn
Pennsylvania Superior Court
No. 3465 EDA 2019
Decided: December 16, 2020

After Plaintiff’s decedent was misdiagnosed after hurting his shoulder at the beach, Court affirms judgment for Defendant where some of Plaintiffs’ experts’ opinions lacked “reasonable certainty” and the jury believed Defendant’s experts.

Background

Mr. Heimbecker injured his shoulder while pulling a cart. After being told to take 2 aspirins and call back in the morning, he was referred to Dr. Trevlyn, an orthopedic surgeon, who diagnosed him with gout, prescribed Indocin, and ordered an MRI of his shoulder. A few days later, Mr. Heimbecker was found unresponsive, taken to a local hospital, then transferred to a major city hospital where he died 3 days later. At trial, Plaintiffs’ experts testified that Mr. Heimbecker was misdiagnosed by Dr. Trevlyn, who failed to properly treat a developing bacterial infection that “showered [Mr. Heimbecker’s] bloodstream and his brain and likely his heart” which ultimately caused his death less than a week later.

However, the Trial Court had earlier granted Defendant’s Motion in limine and precluded two of Plaintiffs’ experts from testifying at trial because their written opinions were not rendered with the requisite degree of medical certainty. Although other experts testified for Plaintiffs, a jury returned a verdict in favor of Dr. Trevlyn. Plaintiffs’ Motion for post-trial relief was denied and judgment was entered in favor of Dr. Trevlyn. The Trial Court explained that the jury simply believed Dr. Trevlyn’s experts regarding the appropriate standard of care and the cause of his patient’s untimely death.

Holding

In affirming the judgment entered in favor of Dr. Trevlyn, the Superior Court, in large part, adopted the opinion of the Lower Court. With regard to precluding Dr. Dorsky’s expert testimony, the Court held that his repeated use of the phrase “more likely than not” in his written report failed to express the requisite degree of medical certainty. Although the Court found that Plaintiffs had not preserved their objection to the Lower Court’s preclusion of the expert opinion of Dr. Sicherman, the Court indicated that even had the issue been preserved, Dr. Sicherman’s use of “it is more probable than not” also fell short of the hallmarks of medical certainty. Moreover, Dr. Sicherman’s testimony was duplicative of one of Plaintiffs’ other experts who was permitted to testify at trial.

Plaintiffs also complained that the Trial Court abused its discretion in precluding a 3 minute video of Mr. Heimbecker showing his “vibrancy” before his misdiagnosis. According to the Trial Court, the video consisted of “a series of photographs that [were] orchestrated or choreographed to music along with texts and some voice over top of it.” The Superior Court agreed that the video’s prejudicial effect outweighed its probative value and was offered at the end of Plaintiffs’ case in chief to “merely elicit sympathy from the jurors.” Additionally, since the jury never assessed damages, the video was irrelevant. Lastly, because Plaintiffs failed to object to the alleged demonstrated prejudicial effect of the Trial Judge’s behaviors and comments during sidebars, testimony, a snow storm, and while instructing the jury, those issues were waived.

Questions about this case can be directed to Joe Holko at (610) 332-7005 or jholko@tthlaw.com.

Zitney v. Wyeth LLC
Pennsylvania Superior Court
No. 2020 Pa. Super. 278
Decided: December 1, 2020

Court affirms summary judgment in favor of drug manufacturers, finding that Pennsylvania law does not impose a duty on drug manufacturers to convey safety warnings to prescribers in a manner other than including them in drug packaging.

Background

Plaintiff’s physician prescribed metoclopramide (Reglan) to treat nausea associated with migraines. Plaintiff took the medication for several years. Eventually, after suffering bouts of muscle spasms, she was diagnosed with tardive dyskinesia caused by her use of the drug.

Plaintiff filed suit against fifty Defendants, including the relevant drug manufacturers, arguing, inter alia, failure to warn. Plaintiff argued that the drug companies were negligent because they failed to warn Plaintiff’s physician about updates to the Reglan/metoclopramide labels. Essentially, Plaintiff based her failure to warn claim on the manner in which the drug companies notified physicians of warnings, and not the contents of the warnings themselves. Thereafter, two drug companies, PLIVA and Teva filed motions for summary judgment, arguing that they did not breach a duty to warn. The Lower Court agreed finding that Pennsylvania law does not impose a duty on drug manufacturers to convey safety warnings in any manner other than including them in a product’s package insert.

Holding

On appeal, the Court applied the learned intermediary doctrine, which provides that drug manufacturers must direct required drug safety warnings to physicians and not to patients. In applying this doctrine, the Court considered whether the warning that was given to the prescribing physician was proper and adequate. The Court noted that Plaintiff did not dispute that the relevant labels were adequate to satisfy the duty to warn; rather, she argued that the learned intermediary doctrine imposes a duty to warn physicians individually through a “Dear Health Care Provider” (“DHCP”) letter of the risks imposed by metoclopramide. Ultimately, the Court found that the drug companies fulfilled their duty to warn by including adequate safety warnings within the packaging of the drug. Additionally, the Court found that Pennsylvania law does not impose on drug manufacturers a duty to send DHCP letters to prescribing physicians.

Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or jdenicola@tthlaw.com.

Weimer v. UPMC Somerset Hosp.
Pennsylvania Superior Court
No. 151 WDA 2020
Decided: November 30, 2020

Plaintiff’s claims for malpractice, false imprisonment and punitive damages arising out of a Section 302 and/or Section 303 Involuntary Treatment Application did not overcome the immunity afforded by Pennsylvania Mental Health Procedures Act (“MHPA”).

Background

Police officers notified Plaintiff that his ex-wife, with whom he resided, had committed suicide. After being notified, Plaintiff became violent and attempted to retrieve a firearm. After a brief struggle, Plaintiff insisted that he was going to kill and/or harm himself. The responding officer thereafter completed an Application for Involuntary Emergency Examination and Treatment pursuant to Section 302 of the MHPA. Plaintiff was then transported to the hospital for further evaluation. Upon further evaluation, it was determined, by the treating physician, that Plaintiff required further treatment and a Section 303 Application for Extended Involuntary Treatment was completed. Following a hearing, the trial court entered an Order granting the Section 303 Application. On the same date, however, Plaintiff was released from care.

Thereafter, Plaintiff filed a Complaint and Amended averring causes of action against Defendants for medical malpractice, false imprisonment, and punitive damages. Following Preliminary Objections by Defendant, Plaintiff filed an Amended Complaint. The Amended Complaint again averred causes of action for medical malpractice and false imprisonment. Following a second round of Preliminary Objections, the Trial Court sustained the Preliminary Objections and dismissed the Complaint with prejudice.

Holding

In addressing the claims for medical malpractice and false imprisonment, the Superior Court reviewed Section 7114 of the MHPA which provides for specific immunities from civil and criminal liability arising out of Applications for Involuntary Emergency Examination and Treatment. Section 7114 provides immunity for any covered “facility” which engages in the diagnosis, treatment, care, or rehabilitation of mentally ill persons, whether as outpatients or inpatients, absent a showing of willful misconduct and/or gross negligence. In reviewing the facts, as plead, the Superior Court determined that Plaintiff could not overcome the immunity afforded by the MHPA. In reviewing Plaintiff’s remaining claim for punitive damages, the Superior Court determined that the cause of action arose out of the underlying actions and absent a viable cause of action, an independent claim for punitive damages could not stand. Moreover, Section 505 of the Medical Care and Reduction of Error Act precluded such a claim as there was no showing of outrageous behavior or egregious conduct. The decision by the Trial Court to dismiss Plaintiff’s Complaint with prejudice was affirmed.

Questions about this case can be directed to John Lucy at (717) 441-7067 or jlucy@tthlaw.com.

McNeill v. Global Tel-Link
Pennsylvania Superior Court
No. 50 MDA 2020
Decided: November 25, 2020

Defendants may be shielded by repetitive and frivolous claims filed by pro se litigants under Rule 233.1 of the Pennsylvania Rules of Civil Procedure.

Background

In 2019, McNeill, an inmate, filed a pro se Complaint against Global Tel-Link, the telephone service provider for the Pennsylvania Department of Corrections, in state court alleging violation of the Uniform Trade Practices and Consumer Protection Law, fraud, and unjust enrichment, stemming from his complaint that while in the custody of the DOC, he was overcharged for several calls made while using Global’s services. Prior to this, in 2015, he had filed an action against Global in the U.S. District Court for the Middle District of Pennsylvania, making the same allegations that Global had overcharged him to use their telephone services, and also alleging that Global had violated his rights under 42 U.S.C. § 1983. In the federal action, it was recommended that McNeill’s Complaint be dismissed as frivolous because Global was not a state actor for
§ 1983 purposes. McNeill was given leave to file an amended complaint, which, when filed, claimed a violation of the Federal Communications Act and unjust enrichment. The Amended Complaint was dismissed with prejudice. While McNeill filed two motions for reconsideration, both motions were denied and McNeill did not appeal.

In the subsequent state action, Global requested, pursuant to Pa.R.C.P. No. 233.1, that McNeill’s pro se Complaint be dismissed with prejudice because his claims were previously dismissed in federal court. Rule 233.1 provides:

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.

Pa.R.C.P. No. 233.1 (emphasis added).

The Trial Court granted Global’s Motion to dismiss, concluding that McNeill’s action met the requirements of Rule 233.1, and was, therefore, frivolous, and dismissed the case. McNeill appealed, arguing that the Trial Court abused its discretion and committed an error of law, particularly when it determined that McNeill’s litigation against Global was repetitive or serial.

Holding

On appeal, the Superior Court affirmed. The Court reviewed the rationale behind the adoption of Rule 233.1, noting that it was adopted because “certain litigants [were] abusing the legal system by repeatedly filing new litigation raising the same claims against the same defendant even though the claims have been previously adjudicated.” While McNeill argued that the Trial Court erred because he only filed two claims against Global, rather than “repetitive or serial” claims, the Court found that a plain reading of the rule did not require more than one prior action to trigger its application. Moreover, McNeill’s actions were both filed against the identical party, Gobal, both stemmed from McNeill’s claims that Global overcharged him for calls made while he was an inmate, and, in both, he failed to set forth sufficient facts to support his claims. Rule 233.1 squarely applied and no error was committed by the Trial Court.

Questions about this case can be directed to Julia Morrison at (717) 441-7056 or jmorrison@tthlaw.com

Matthews v. Prospect Crozer, LLC
Pennsylvania Superior Court
No. 355 EDA 2020
Decided: November 23, 2020

Summary Judgment properly entered where Plaintiff-landowner failed to establish that landscaper had a duty to inspect or maintain trees.

Background

Plaintiff was walking on a sidewalk when a large branch fell off a tree striking Plaintiff and causing serious injuries. At the time of the accident, the landowner had contracts with two landscaping companies for snow removal and landscaping, respectively, but neither contract included the inspection or maintenance of trees. Discovery revealed that the snow removal company would provide occasional ad hoc tree services, but always at the landowner’s request. Defendants filed Motions for summary judgment arguing that Plaintiff failed to prove that they owed him a duty of care. The Trial Court rejected Plaintiff’s argument that Restatement (Second) of Torts § 324(A) imposed a duty because Plaintiff failed to establish that the Defendants had “undertaken” an obligation to inspect and maintain the trees. Summary Judgment was entered for Defendants.

On appeal, Plaintiff claimed that the Trial Court erred in misapplying Section 324(A) and failed to consider Plaintiff’s expert witness testimony on the question of duty. Plaintiff argued that evidence was sufficient to establish that Defendants undertook the duty because they admitted, hypothetically, that they would alert the landowner if they noticed tree maintenance issues. However, per the Court, the fact that one of the Defendants had trimmed a tree and removed a branch ten years earlier, at the request of the landowner, was not sufficient to reasonably infer that the Defendants had gratuitously undertaken or agreed to inspect or maintain the trees for the next eight years. Even if the landowner had an expectation that they would inspect the trees, that expectation, alone, without evidence of an undertaking, was not sufficient to impose a legal obligation. Absent evidence of a duty on Defendants, Plaintiff’s expert witness testimony regarding the scope of any duty, or the breach thereof, was irrelevant.

Holding

The Superior Court affirmed the judgments in favor of the Defendants because there was no evidence that the Defendants either directly or indirectly agreed to provide tree inspection or maintenance services, and because Plaintiff could not establish that Defendants undertook a duty to do so pursuant to Section 324(A).

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

Sherry v. Sheetz, Inc.
Pennsylvania Superior Court
No. 528 WDA 2020
Decided: November 18, 2020

Summary judgment was proper where Plaintiff was unable to demonstrate that Defendant’s alleged negligence was the proximate cause of his being assaulted on Defendant’s property despite production of an expert report as to Defendant’s negligence.

Background

Robert Sherry was physically assaulted in the parking lot of the Sheetz store by Eric Hageder, who was involved in extensive criminal activity on that date. The assault took place at approximately 3:19 a.m. Plaintiff submitted an expert report that raised a number of issues of negligence on the part of Defendant Sheetz, including inadequate lighting, inadequate security/safety procedures crime risk analysis, inadequate staffing, and failure to intervene once the assault started.

Defendant Sheetz filed a Motion for summary judgment. The Trial Court, in granting Defendant’s Motion for summary judgment, found as a matter of law that Hageder’s actions were not reasonably foreseeable and were the sole proximate cause of Plaintiff’s injuries. The Trial Court focused on the time element and, in particular, that Hageder was at the Sheetz for approximately five minutes before the assault began and that the assault lasted only 33 seconds. This hardly constituted “loitering” that should have alerted the Sheetz employees that a criminal assault was about to take place. Plaintiff appealed from the entry of summary judgment.

Holding

The Superior Court affirmed noting that generally there is no duty to control the acts of a third party unless the defendant stands in some special relationship with either the person whose conduct needs to be controlled or with the intended victim which gives the intended victim a right to protection. A “special relationship” can exist between a business and its invitee. The Superior Court noted that under Restatement (Second) of Torts § 344, the possessor of land is not the insurer of the victim’s safety; he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. Applying those principles to the instant case, the Superior Court held that Plaintiff failed to establish that any of the deficiencies in the security precautions implemented by Sheetz was a proximate cause of his harm. Plaintiff also argued that the Trial Court erred in failing to consider the opinions of his security expert. The Superior Court held that an expert’s report can have no effect on a decision that is based on legal or proximate cause rather than causation and fact. The holding is consistent with recent Superior Court holdings limiting liability on the part of businesses for the criminal acts of third parties.

Questions about this case can be directed to Hugh O’Neill at (717) 255-7629 or honeill@tthlaw.com.
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MARYLAND CASE SUMMARY

Six Flags America, L.P. v. Gonzalez-Perdomo
Maryland Court of Special Appeals
No. 1620, September Term, 2019
Decided: December 16, 2020

The Trial Court erred in refusing to propound a jury instruction on the open and obvious condition defense.

Background

Plaintiff filed this matter on behalf of her minor son. The minor suffered a slip and fall injury on a pedestrian bridge near the Shipwreck Falls ride at the Six Flags Amusement Park in Upper Marlboro, Maryland. Shipwreck Falls was a water ride in the amusement park which would splash water onto the bridge and occasionally accumulate water on the floor of the walkway. There was a sign warning that the bridge was wet, but there was no non-skid material placed on the bridge.

Six Flags filed a Motion for summary judgment arguing that they owed no duty to the minor as the wet condition was open and obvious. The same arguments were presented at their Motion for judgment at the conclusion of Plaintiff’s case. The Trial Court denied both Motions. At the close of trial, the Trial Court refused to propound a jury instruction regarding the open and obvious condition. The Trial Court also denied Defendant’s request to include a question regarding this defense on the verdict sheet.

Holding

The Court of Special Appeals determined the Trial Court did not abuse its discretion in denying the Motion for summary judgment or the motion for judgment. The dangerous condition caused by the wetness was not so clearly open and obvious as to permit no reasonable factfinder to conclude otherwise. Further, the Trial Court did not abuse its discretion in denying to include a question regarding the open and obvious defense on the verdict sheet. However, the Court did abuse its discretion in refusing to propound a jury instruction on the open and obvious condition defense. The Defendants also demonstrated a probable prejudice as a result of the Trial Court’s decision. The judgment in the Trial Court was reversed and the case was remanded for a new trial.

Questions about this case can be directed to Lauren Upton at (443) 641-0572 or lupton@tthlaw.com.
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NJ CASE SUMMARY

N&S Rest., LLC v. Cumberland Mut. Fire Ins. Co.
United States District Court for the District of New Jersey
No. 20-05289
Decided: November 5, 2020

District Court upheld insurance coverage denial decision of insurer for New Jersey restaurant closed during the COVID-19 pandemic.

Background

This action arises out of an insurance coverage dispute. N&S Restaurant, the operator of the Cara Mia restaurant in Millburn, New Jersey, received property insurance from Cumberland Mutual Fire Insurance Co. N&S Restaurant was insured via Cumberland’s Business Owners Policy. On March 16, 2020, Governor Murphy issued Executive Order No. 104, suspending the operation of non-essential retail businesses in response to the ongoing COVID-19 pandemic. N&S Restaurant thereafter filed a claim with Cumberland via the Policy for loss of business income caused by the Executive Order. Cumberland denied N&S’s request for coverage, citing two primary reasons: (1) the claim was barred by the Virus Exclusion, and (2) the claim did not arise out of physical loss or damage as required by each of the applicable provisions.

N&S thereafter filed suit, seeking a declaratory judgment that Cumberland is required to provide coverage under the Business Income, Civil Authority, and Extra Expenses provisions of the Policy. N&S additionally pled a cause of action for breach of contract for failure to provide coverage under each of these provisions. Cumberland filed a Motion to Dismiss the suit.

Holding

The Court granted Cumberland’s Motion to Dismiss the suit. The Court found that the Virus Exclusion plainly applied, barring coverage. Per the opinion, the Virus Exclusion stated that “[Cumberland] will not pay for loss or damage caused directly or indirectly by . . . [a]ny virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness[,] or disease.” Additionally, the Virus Exclusion contains an “anti-concurrent causation preamble,” which states that “[s]uch loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” The Court accepted Cumberland’s argument that the Virus Exclusion “in conjunction with the anti-concurrent causation preamble, expressly excludes coverage of an otherwise covered loss that is related directly or indirectly to a virus.” Therefore, the Virus Exclusion applied because COVID-19 caused the Executive Order mandating closure of all non-essential businesses.

Questions about this case can be directed to Michael Bishop at (908) 574-0510 or mbishop@tthlaw.com.
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DC CASE SUMMARY

Robinson v. Panera, LLC
United States District Court for the District of Columbia
2019 U.S. Dist. LEXIS 178425
Decided: October 16, 2019

Excluding Plaintiff’s slip and fall expert where expert did not visit the fall location, test an exemplar, or speak to the Plaintiff.

Background

On a snowy day, Plaintiff slipped and fell inside a Panera. Plaintiff alleged that she tripped on a floor mat that was located inside the entrance. Plaintiff filed a negligence suit involving the trip and fall. Plaintiff’s expert, opined that the fall was caused by a failure to secure the mat or place the mat in a proper location. The expert, in reaching his conclusion, only consulted depositions, interrogatories, document productions, and one angle of the Panera’s surveillance footage. Defendant filed a Motion in limine seeking to exclude the expert’s testimony.

Holding

The US District Court for the District of Columbia held that the expert’s opinion lacked a factual basis. The Court reasoned that the expert’s opinion did not comport with the undisputed facts of the case and did not even comport with Plaintiff’s testimony about the fall. The Court pointed out that the expert contended the mat was likely buckled or ripped even though the Plaintiff denied either condition in her deposition. Further, the Court noted that the expert never visited the store in question, never saw the mat at issue, and never tested an exemplar of the mat. The Court granted the Defendant’s Motion in limine, excluding the expert.

Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or rstanley@tthlaw.com.
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VA CASE SUMMARY

Graves v. Shoemaker
Virginia Supreme Court
No. 191500
Decided: December 10, 2020

Evidence of a substantial relationship between an insurance company and an expert witness may be admitted at trial even if the expert’s fees are paid by a third party.

Background

Deborah Graves sued Samantha Shoemaker after Graves was injured in a rear end auto accident. After the crash, Graves alleged she experienced pain in her back, hip and neck, as well as increased depression and anxiety. Her bills for medical treatment totaled over $26,000. Shoemaker’s carrier, State Farm, hired John Cattano to represent Shoemaker. Cattano hired Dr. William Andrews as the defense’s expert witness. Dr. Andrews opined that Graves’ injuries from the crash were minor, that most of the pain she experienced was due to pre-existing conditions, and that most of the treatment she received was not necessary to treat her injuries from the crash. Dr. Andrews testified in deposition that Cattano had hired him 30-35 times over the prior 10-12 years, that State Farm had paid him $793,198.00 between 2012 and 2018, and that he was not aware State Farm would be paying his fee until his deposition.

Shoemaker admitted liability and the case was tried solely on damages. Before trial, Graves moved in limine to introduce evidence of Dr. Andrews’ relationship with State Farm and Cattano’s law firm. The Trial Court ruled that Graves could introduce evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30-35 times in the past, but that Graves could not ask about Dr. Andrews’ prior work for State Farm because there was no “direct relationship” between him and State Farm. The Court indicated its ruling was predicated on the fact that Dr. Andrews was hired by Cattano, not State Farm, and because Dr. Andrews testified he did not know that State Farm would be paying his bill. The jury’s verdict for Graves was $3,000, plus interest. Graves’ Motion for a new trial was denied and she appealed the Court’s pre-trial ruling precluding her from introducing evidence of Dr. Andrews’ relationship with State Farm.

Holding

The Supreme Court held that the Trial Court abused its discretion in denying Graves’ request to introduce evidence of Dr. Andrews’ bias based on a purported financial relationship with State Farm by requiring a “direct relationship” between him and the insurance company. For such evidence to be admitted, only a “substantial relationship,” as opposed to a direct relationship, must be shown. The fact that an attorney may have hired the expert does not shield the expert from cross-examination on possible bias resulting from such a relationship as the existence of a “substantial relationship” does not hinge solely on who retained the expert. However, an insurer’s payment of a large sum of money to an expert for prior favorable testimony standing alone can be enough to create a potential for bias justifying admission of such evidence, and any harm from the mention of insurance can be mitigated by a limiting instruction.

Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or nphillips@tthlaw.com.