eNotes: Liability – December 2018
November 30, 2018
TT&H LAWYERS IN COURT
TT&H Attorney Sarah Arosell wins defense verdict in Dauphin County death case.
Attorney Sarah Arosell recently won a defense jury verdict in Dauphin County. The action concerned claims for wrongful death and survival filed by the son of an elderly patient who allegedly died as a result of a negative reaction to heart medication prescribed by the decedent’s longtime family physician. After uncovering that Plaintiff’s expert had participated in seminars on “How to be a Better Expert Witness,” and with the help of the testimony of the client-physician and well-credentialed experts in family medicine and cardiology, Sarah successfully rebutted plaintiff’s theory that the prescribed drug was contraindicated in a patient with a history of bradycardia and severe renal impairment. After the jury unanimously found Sarah’s client to be without fault, the plaintiff unexpectedly shook the client-doctor’s hand and said “no hard feelings doc, my mother loved you.”
Questions about this case can be directed to Sarah Arosell, at (717) 255-7231 or sarosell@tthlaw.com.
Joshua Bovender secures dismissal of roofing contractor in seven-figure Hurricane Sandy claim.
Attorney Joshua Bovender won the dismissal of a roofing contractor in a Berks County lawsuit. The suit arose from a seven-figure property damage claim following Hurricane Sandy. During the course of the litigation, Josh uncovered a procedural flaw in the joinder claims against his client, the roofing contractor, who was alleged to have negligently installed temporary roofing materials at the property. This procedural flaw stemmed from the dismissal of the joining defendant, which allowed Josh to successfully argue that the Plaintiff was unable to proceed with a claim against the roofing contractor under the circumstances. The Court agreed that the joinder claims were untenable and granted summary judgment, dismissing the claims against Josh’s client.
Questions about this case can be directed to Joshua Bovender, at (717) 237-7153 or jbovender@tthlaw.com.
TT&H Attorney James Swartz, III wins defense arbitration award in Bucks County trip and fall case.
James F. Swartz, III, an attorney in TT&H’s Allentown office, recently secured a defense arbitration award in Bucks County. Plaintiff claimed that she tripped and fell over a manhole cover located within a paved walkway on the defendant homeowners’ association’s property. In connection with the accident, which was unwitnessed, Plaintiff claimed that she broke her ankle. She further claimed that after the fall, she could not walk from the area and was found by police officers next to the manhole cover. At arbitration, Jim introduced evidence that the police officers were called to an area some two blocks away from the alleged condition, where they then found the Plaintiff. Based on this evidence, Jim was able to convince the arbitration panel that the fall did not occur on the portion of the walkway at issue.
Questions about this case can be directed to Jim Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.
TT&H Attorney James Swartz, III, successfully obtains abatement in Monroe County trip and fall case.
James F. Swartz, III recently won the abatement of a trip and fall claim venued in Monroe County, Pennsylvania. The Plaintiff allegedly tripped and fell in the parking lot of a restaurant owned by Jim’s client, resulting in a fractured hip. Suit was filed in 2013 and the Plaintiff thereafter died in 2016. Four months later, Plaintiff’s counsel filed a suggestion of death. However, Plaintiff failed to take out letters of administration for the appointment of a personal representative for a period well in excess of one year. Jim filed a Petition for abatement pursuant to 20 Pa.C.S. § 3375, which requires the substitution of a personal representative within one year of the filing of the suggestion of death. The Court agreed with Jim that the delay in taking out letters was not reasonably explained and dismissed the case by entering judgment in favor of the defendant.
Questions about this case can be directed to Jim Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
In Re: Johnson & Johnson Talcum Powder
United States Court of Appeals for the Third Circuit
No. 17-2980
Decided: September 6, 2018
Court finds class action plaintiffs, who purchased J&J baby powder, did not have Article III standing simply because they claimed an economic injury when they allegedly based their decision to purchase the product on its implied safety, had entirely consumed it, and it had functioned as advertised.
Background
Lead Plaintiff, Mona Estrada, for herself and similarly situated consumers, alleged that her perineal use of J&J’s Baby Powder can lead to an increase risk of developing ovarian cancer. She did not allege that the product caused her physical injury or emotional injury or that the powder was defective or did not perform as advertised. Moreover, Ms. Estrada did not seek to be reimbursed for powder she still possessed but was afraid to use, or damages for medical monitoring expenses, or reimbursement for costs associated with reselling or returning the product. Rather, Ms. Estrada’s theory of recovery was that she suffered economic harm simply by purchasing improperly marketed baby powder, because there was no warning on the product that using the powder could lead to an increased risk of ovarian cancer. Had she been so warned, she would not have purchased the product.
The action was first filed in the United States District Court for the Eastern District of California, which dismissed the action for lack of standing. Thereafter, Ms. Estrada filed an amended complaint. Her action was then consolidated as part of a Multi-district Litigation and transferred to the United States District Court for the District of New Jersey. There the Court also dismissed the action for lack of standing, finding that her claims did not fall within one of three different theories of economic harm.
In order to have standing under the Federal Court’s Article III jurisdiction, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Here the District Court held she did not show that she suffered an invasion of a legally protected interest; a concrete and particularized injury; and, her injury was not actual or imminent.
Holding
The Third Circuit held that Plaintiffs lacked standing under Article III. In affirming the District Court, the Third Circuit held that “buyer’s remorse, without more, is not a cognizable injury under Article III of the United States Constitution.” In dissent, Circuit Judge Julio Fuentes opined that Ms. Estrada had standing because the alleged false representation concerning the products inherent safety was part of her “benefit of the bargain.” Plaintiffs will have 90 days to file a petition for certiorari to the United States Supreme Court.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.
Murray v. City of Philadelphia
United States Court of Appeals for the Third Circuit
No. 16-3145
Decided: August 21, 2018
An individual who is not the beneficiary of an estate may not conduct a federal court case on behalf of the estate if they are not an attorney.
Background
Tracy Murray was named the administrator of her son’s estate after he was shot and killed by two Philadelphia police officers. The estate’s sole beneficiary was Ms. Murray’s granddaughter, the deceased’s daughter. Ms. Murray hired an attorney and brought an action against the officers on behalf of the estate. A jury found the officers not guilty. Ms. Murray subsequently filed a pro se notice of appeal.
Holding
The Court held that Ms. Murray could not represent the estate pro se because it would require her to represent the interests of other parties, i.e. beneficiaries (her granddaughter). Given that non-attorneys cannot represent the interests of others, her appeal was dismissed.
Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.
Higman v. State Farm Mut. Auto. Ins. Cos.
United States District Court for the Western District of Pennsylvania
No. 2:18-cv-00662
Decided: October 22, 2018
Bad faith claim dismissed where Complaint failed to plead sufficient facts to support a plausible bad faith claim.
Background
Plaintiff sustained a left shoulder injury in an auto accident on June 2, 2017. He treated conservatively for six months before he underwent surgery on October 27, 2017. Defendant paid $5,000 in no-fault medical pay coverage and $5,000 in no-fault income loss coverage. Plaintiff had underinsured motorist limits of $100,000. The 3rd party tortfeasor tendered its limits of $15,000. On November 28, 2017, one month after the surgery, Plaintiff submitted a UIM demand for limits, which included evidence of lost income of $74,000. In February 2018, Defendant advised Plaintiff of the need to further investigate Plaintiff’s UIM benefits claim to determine causation. No offer of settlement of Plaintiff’s UIM claim was made, prompting Plaintiff to commence his civil action on April 19, 2018. The action included claims for UIM benefits, breach of contract and Bad Faith.
Defendant filed a Motion to dismiss the bad faith claim for failing to plead sufficient facts to support a plausible bad faith claim. Defendant also sought dismissal of the claims for UIM benefits and breach of contract, arguing that the claims were duplicative. Plaintiff contended that the suit was about Defendant’s dragging out payment of benefits which it owed, arguing that Defendant had information necessary to make an offer since it already collected medical records and wage loss information under the first party claim and had already paid its limits for first party medical and wage loss coverage. Defendant maintained that it had the right to further investigate the claim and doing so did not amount to bad faith.
Holding
The Trial Court held that since the UIM claim was presented only one month following the surgery, Defendant had not had a substantial amount of time to investigate the claim and did not deny the claim, but simply indicated a need to investigate. In dismissing the bad faith count, the Court stated that “formulaic recitals of the elements of a bad faith claim” without factual support are insufficient to state a plausible bad faith claim. The Court noted that the Complaint failed to allege when Defendant knew the full extent of Plaintiff’s injuries or what records it possessed before the demand was presented. It further noted that suit was filed before Defendant could fully investigate the claim, thereby precluding any settlement discussions or offers. The claim was dismissed without prejudice, and Plaintiff was granted leave to amend the Complaint. The Court denied Defendant’s Motion to Dismiss the UIM and contract claims, ruling that the claims were not duplicative because they encompassed distinct elements and standards of proof.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.
Urda v. Darden Rests., Inc.
United States District Court for the Eastern District of Pennsylvania
No. 18-3282
Decided: October 18, 2018
U. S. District Court, Eastern District of Pennsylvania, remands slip and fall case back to the Philadelphia County Court where the lawsuit was filed as an arbitration level case and, therefore, did not meet the amount in controversy requirement for diversity jurisdiction.
Background
Plaintiff Urda filed a Complaint against the Defendant Restaurant in the Philadelphia Court of Common Pleas alleging that an interior walkway at a Longhorn Steakhouse was obstructed causing her to fall and suffer injuries. The Complaint contained one count alleging negligence and sought damages in an amount less than $50,000. Defendant filed a Notice of Removal contending that the Federal Court possessed jurisdiction over the matter due to Plaintiff’s counsel’s unwillingness to stipulate to limiting damages to $75,000. Plaintiff filed a Motion to Remand on alleging that the Federal Court lacked subject matter jurisdiction because the Plaintiff did not seek damages in excess of $75,000. Defendant contended that the $75,000 jurisdictional limit has been met because the Philadelphia Arbitration limit of $50,000.00 is non-binding.
Holding
The federal court held that the Plaintiff’s ability to recover damages exceeding $50,000 in a de novo appeal from arbitration does not establish subject matter jurisdiction, and Plaintiff’s refusal to stipulate to a damage award of less than $75,000 does not, by itself, satisfy Defendant’s burden of proof.
Questions about this case can be directed to Christopher Gallagher, at (215) 564-2928 or cgallagher@tthlaw.com.
PENNSYLVANIA CASE SUMMARIES
Dittman v. UPMC
Pennsylvania Supreme Court
2018 Pa. LEXIS 6051
Decided: November 21, 2018
Pennsylvania Supreme Court modifies economic loss doctrine by holding that recovery for purely pecuniary damages is permissible under a negligence theory provided that plaintiff establishes the defendant’s breach of a legal duty arises under common law and independent of any duty assumed pursuant to contract.
Background
Plaintiffs filed a class action against UPMC for negligence and breach of contract after a data breach which occurred to the medical center’s computer system. The breach exposed personal and financial information of the employees, which was given to UPMC as a condition of the employees’ employment. UPMC filed preliminary objections to complaint arguing that, inter alia, the negligence claim failed as a matter of law pursuant to the economic loss doctrine because the employees did not allege any physical injury or property damage, only pecuniary loss. The Superior Court affirmed.
Holding
The Pennsylvania Supreme Court found that UPMC did owe a common law duty to employees to exercise reasonable care in collecting and storing their personal and financial information on its computer systems. The Court then held that because the employees asserted UPMC breached its common law duty to act with reasonable care in collecting and storing their personal and financial information, and because this legal duty existed independently from any contractual obligations between the parties, the economic loss doctrine did not bar the pecuniary claims made.
Questions about this case can be directed to Jolee Bovender at (717) 255-7626 or jmbovender@tthlaw.com.
The Hartford Ins. Group on behalf of Chen v. Kamara
Pennsylvania Supreme Court
No. 24 EAP 2017, ___ A.3d ___
Decided: November 21, 2018
The Pennsylvania Supreme Court rules that absent assignment or voluntarily joinder by an injured employee, a workers’ compensation insurer may not enforce its statutory right to subrogation by filing an action directly against a tortfeasor.
Background
On October 10, 2013, Chen was injured while in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle operated by Kamara. At the time of the incident, Chen was working for Reliance Sourcing, which maintained workers’ compensation coverage through the Hartford Insurance Group. Hartford paid workers compensation medical and wage benefits to Chen as a result of the incident.
Subsequently, Chen did not file an action against Kamara or Thrifty Rental Car, nor did she assign any relevant cause of action to Hartford. Nonetheless, Hartford brought a cause of action against Kamara and Thrifty Car Rental “on behalf of” Chen. The complaint was objected to by the Defendants, who alleged that Hartford improperly filed a suit which could only have been brought by the injured employee. Accepting that argument, the Trial Court dismissed the complaint, with prejudice. The matter was then appealed to the Superior Court, which vacated the Trial Court’s order and remanded the matter for further proceedings. In so ruling, the Superior Court emphasized that Hartford was not attempting to “split” Chen’s cause of action, as it sought the full amount of recovery due to Chen, not merely the amount representing its own subrogation interest.
Holding
On further appeal to the Pennsylvania Supreme Court, the Superior Court’s ruling was vacated and the Trial court’s order was reinstated. The Court found that an action brought by an insurer could be detrimental to the injured employee’s interests because the insurer would be faced with an “insurmountable conflict of interest,” as it has no incentive to expend time or resources to prosecute an injured employee’s independent claims for pain and suffering.
Recognizing § 319 of the Workers’ Compensation Act, which provides for the subrogation right of a workers’ compensation insurer, the Court discussed the dichotomy presented where an injured worker declines to file a third-party claim. The Court noted that a procedure allowing a workers’ compensation insurer to sue a third-party tortfeasor, without detrimentally affecting an injured employee’s independent cause of action, would further the purposes of § 319. However, the Court also noted that it was not in a position to create a “remedy to cure a possible deficiency in the Workers’ Compensation Act.” Thus, the Court explicitly held that unless the injured employee assigns his/her cause of action, or voluntarily joins the litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against a tortfeasor.
Takeaway
In light of the Supreme Court’s decision, workers’ compensation insurers seeking to pursue subrogation would be wise to seek the active participation of the injured worker. Alternatively, efforts should be made to obtain an assignment of the claim from the injured worker.
Questions about this case can be directed to Ryan Blazure, at (570) 820-0240 or rblazure@tthlaw.com.
Stapas v. Giant Eagle, Inc.
Pennsylvania Supreme Court
No. 44 WPA 2017
Decided: November 21, 2018
Objection to jury’s verdict premised on trial errors, correctible before the jury is discharged, must be raised before the jury is discharged.
Background
In this premises liability case, Plaintiff sustained gunshot wounds at a convenience store during an altercation between a customer and an employee, resulting in, inter alia, a loss of six weeks of work for a past lost wage claim of approximately $3,000. At trial, the jury heard evidence of past wage loss, but no evidence of future wage loss. Plaintiff’s counsel’s closing argument acknowledged that there was no claim for future wage loss. The Trial Court instructed the jury to award damages in a single lump-sum for damages sustained in the past as well as damages he would sustain in the future, without any instruction on lost wages. The verdict slip was agreed upon by the parties and included five categories of damages awardable, including “wage loss.” The jury returned a verdict which itemized the damages assessed for each category, including an award of future wage loss in the amount of $1,300,000.
Defendant failed to object to the verdict at trial but, instead, filed Post-trial motions challenging the weight of the evidence. The Trial Court denied the motion, opining that objection to the jury’s calculation of the general verdict had been waived by not raising the objection before the jury was discharged. On appeal, the Superior Court disagreed holding that a party does not have to raise a challenge to the weight of the evidence before the jury is discharged.
Holding
The Supreme Court reversed and reinstated the jury’s verdict, holding that Defendant had waived its challenge to the verdict by failing to raise a contemporaneous objection to a trial error which could have been corrected before the jury was discharged. It reasoned that Defendant’s challenge was not to the weight of the evidence, but to the jury’s ability to award damages for future lost wages despite the lack of evidence or instruction on that measure of damages. It noted that Defendant had a basis to object because the verdict did not conform to the Trial Court’s instruction to return a single lump-sum and because the jury awarded damages for which the Plaintiff was not entitled as a matter of law. Had Defendant objected before the jury was discharged, the Trial Court could have required the jury to clarify the award.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.
Dolan v. Hurd Millwork Co.
Pennsylvania Supreme Court
No. 51 MAP 2017
Decided: October 17, 2018
Pennsylvania Supreme Court holds that when a Rule 1925(a) opinion is deemed inadequate in a pending appeal and the Trial Judge is unavailable to provide a supplemental opinion, the Appellate Court should review the legal issues raised in the Rule 1925(a) statement of errors complained of on appeal.
Background
The Dolans filed suit against multiple entities, including Bentley Homes, alleging several substantial defects in the construction of their new home. The case proceeded to a non-jury trial before Judge Proud, and the Court entered a general verdict in favor of the Dolans.
Bentley filed a timely appeal. In response, Judge Proud issued a three-page 1925(a) opinion stating, inter alia, that the verdict was against the Appellees jointly and severally. Bentley filed its brief, raising nine issues on appeal. A panel of the Superior Court issued a memorandum decision noting that the Trial Court’s 1925(a) opinion was inadequate to allow effective appellate review, and accordingly remanded the case to the Trial Court for a supplemental opinion. However, Judge Proud had retired from the bench at this point. The panel issued a memorandum noting that without further explanation from the Trial Court, it was unable to address the issues raised on appeal. The panel, therefore, vacated the judgment and remanded for a new trial on liability and damages. The Supreme Court granted allowance of appeal to consider the appropriate role of the Appellate Court under these circumstances and to determine the scope and standard of review to apply if the appellate court is required to reach the merits of the Trial Court’s decision.
Holding
The Pennsylvania Supreme Court reversed and held that the proper procedure in a case where the 1925(a) opinion is deemed inadequate and the Trial Judge is unavailable to supplement the opinion is for the Superior Court to review the legal issues raised in the statement of errors complained of on appeal. Noting that an appellate court’s standard of review as to questions of law is de novo and its scope of review plenary, the Court found that the Appellate Court could review the entire record and determine whether the Trial Court correctly decided the legal issues raised in Bentley’s appeal. As to any factual findings implicated in the issues raised on appeal from the nonjury trial, the Superior Court was directed to determine whether the same were supported by competent evidence.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.
Nicolaou v. Martin
Pennsylvania Supreme Court
No. 44 MAP 2017
Decided: October 17, 2018
Whether plaintiffs were reasonably unaware of an injury or its cause, so as to toll the statute of limitations, was a jury question under the circumstances.
Background
Plaintiffs alleged that Defendant medical providers were negligent in failing to timely diagnose and treat Lyme disease sustained by Plaintiff-patient as a result of a tick bite in 2001. From 2001 through 2008, Defendants treated the patient for multiple sclerosis (MS), and did not administer the standard antibiotic therapy for Lyme disease. Four tests for Lyme disease were negative, and despite treatment, the patient developed symptoms, including increased inability to walk, fatigue, incontinence, and lesions of the brain and spine. An MRI in 2006 indicated the patient had either MS or Lyme disease. The patient acknowledged that in 2007, she suspected she may have Lyme disease and not MS. She began treating with a non-party nurse specializing in Lyme disease on July 20, 2009.
The nurse confirmed the possibility of Lyme disease and prescribed antibiotics, which improved some symptoms. She suggested a new test to confirm the diagnosis, but the patient declined for months purportedly due to inability to pay. The patient took the test on February 1, 2010, and was given the positive results on February 13. Suit was filed on February 10, 2012. Defendants filed a motion for summary judgment, arguing that no later than February 1, 2010, Plaintiffs reasonably should have known that the health issues may have been caused by Defendants’ failure to properly diagnose and treat Lyme disease, and that the action was time-barred as the two-year statute of limitations was not tolled beyond February 1, 2012. The Trial Court and an en banc panel of the Superior Court agreed, holding that reasonable minds could not differ.
Holding
The Pennsylvania Supreme Court noted “the discovery rule tolls the statute of limitations where the plaintiff is reasonably unaware that he has been injured and that his injury has been caused by another party . . . .” While “the reasonable diligence standard is objective,” it is normally a fact-intensive jury determination. With the record viewed most favorably to Plaintiffs, the Court held that the Lower Courts erred in concluding, as a matter of law, that Plaintiffs knew or should have known more than two years before suit was filed that the Plaintiff-patient suffered from Lyme disease and that her problems could have been caused by Defendants’ failures. Instead where there was evidence that the patient had been diagnosed with MS by several doctors, four tests were negative, and she had no insurance to pay for more testing, the question of reasonableness was for a jury.
Questions about this case can be directed to Matthew Ridley, at (717) 255-7239 or mridley@tthlaw.com.
Kelly Systems, Inc. v. Leonard S. Fiore, Inc.
Pennsylvania Superior Court
No. 1714 WDA 2017
Decided: October 31, 2018
Trial Court properly held that a contractor did not need to file a Certificate of Merit with its joinder complaint against an architectural firm because the allegations in the joinder complaint were related to the breach of contract action claimed by the subcontractor in the original complaint.
Background
A subcontractor filed an action against the general contractor for negligence arising out of the general contractor’s failure to pay additional costs incurred by subcontractor to correct issues during the construction of a building. The general contractor filed a third-party complaint against the architectural firm that provided the general contractor with the architectural designs. The architectural firm filed a Notice of Intent to Enter Judgment of Non Pros against the general contractor for failure to file a certificate of merit (COM) with the joinder complaint. The general contractor filed a Motion to seek determination by the Trial Court as to whether they were required to file a COM to the joinder complaint. The architectural firm argued that the joinder complaint was tort-based, not contract-based, and that the professional negligence claim alleged by the general contractor required a COM. The Trial Court entered an Order declaring that the general contractor was not required to file a COM because the general contractor’s negligence claim was related to the breach of contract claim raised by the subcontractor in the original complaint, even if the original complaint contained allegations of negligence.
Holding
The Superior Court held that the Trial Court’s analysis was proper, because it had looked to the gist of the subcontractor’s complaint, which sounded in contract, and the general contractor’s joinder of the architectural firm did not change the nature of the underlying action. As such, the general contractor was not required to file a COM, even if the joinder was based on acts of professional negligence as those acts of negligence were related to the allegations claimed by the subcontractor in the original complaint. The Superior Court noted when joining an additional defendant under Pa.R.C.P 2252(a)(1), the claim does not move from the plaintiff to the additional defendant, but rather is an assertion by the defendant that the plaintiff’s claim is actually against the additional defendant.
Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.
MARYLAND CASE SUMMARIES
Schatz v. John Crane, Inc.
Maryland Court of Special Appeals
No. 1300, September Term 2017
Decided: November 2, 2018
Maryland law imposes no duty on a manufacturer to warn the household member of a worker who used the manufacturer’s product about potential dangers.
Background
Concetta Schatz died from mesothelioma. Her estate filed a products liability action against Defendant John Crane, the manufacturer of products containing asbestos that her husband used for work, then brought his asbestos-covered clothing home, and Ms. Schatz would clean them—exposing her to asbestos. The Trial Court dismissed Plaintiff’s complaint after it found Defendant had no duty to warn Ms. Schatz. Plaintiff appealed.
Holding
The Court of Special Appeals affirmed the dismissal. It found that in a household member’s failure to warn products liability case, the existence of the duty is based on whether the manufacturer knew or reasonably should have known about the dangers posed to household members and the weighing of foreseeability of harm against other policy based factors, including the relationship between the parties and the feasibility of providing warnings. The greater weight is given to the second factor and the focus is on the warning to the household members themselves—not the intermediary, e.g., the worker. The Court found that it was not foreseeable for the Defendant to warn Ms. Schatz because they had no relationship to her. Further, there was insufficient evidence in the record to prove that even if the Defendant gave Ms. Schatz a warning that such a warning would have limited her exposure to the asbestos. Thus, there was no evidence that the warning would have been effective.
Questions about this case can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.
Harvey-Jones v. Coronel
Maryland Court of Special Appeals
September Term, 2017, No. 1232
Decided: November 1, 2018
In determining whether a punitive damages award is warranted under the circumstances, a court must consider six factors: (1) the gravity of the wrong, (2) ability to pay, (3) deterrence value, (4) legislative sanctions, (5) comparison to other awards, and (6) relationship to compensatory damages.
Background
Michael Scott and Raychel Harvey-Jones (Harvey-Jones) were dating. During that time, Scott was receiving anonymous harassing text messages and e-mails that Harvey-Jones told him were from his ex-girlfriend, Susan Coronel (“Coronel”). The messages were not from Coronel. They were from Harvey-Jones. However, to convince Scott that the messages were from Coronel, Harvey-Jones fabricated a statement of charges to misrepresent that Coronel had a prior history of harassment as a course of conduct, electronic mail harassment, and telephone misuse.
When Coronel learned of the fake statement of charges, she sued Harvey-Jones for defamation per se in the Circuit Court for Baltimore County. Coronel received a default judgment award in her favor when Harvey-Jones failed to timely answer. The Trial Court awarded Coronel $10,000.00 in compensatory damages and $200,000 in punitive damages. Harvey-Jones appealed to the Court of Special Appeals, presenting the following issues of whether the Trial Court erred in awarding (1) compensatory damages; (2) punitive damages that were grossly excessive and violated due process, and (3) an excessive monetary judgment where it was based on unverified admissions by default?
Holding
The Court of Special Appeals affirmed the Trial Court’s findings. The Court explained that the Trial Court’s award of compensatory damages was not in error, because Harvey-Jones admitted that the defamatory statements were made with actual malice. It also held that the Trial Court’s award of punitive damages was not error because the $200,000 award was not disproportionate to the gravity of Harvey-Jones’s wrong, and the record showed that Harvey-Jones had ability to pay the punitive damages award. Finally, the Court explained that the Trial Court did not award “an excessive monetary judgment” because it was established both that Harvey-Jones had the ability to pay the judgment, and the judgment was not disproportionate to the gravity of her wrong.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.
NEW JERSEY CASE SUMMARIES
Cichoski v. Turick
New Jersey Superior Court, Appellate Division
2018 N.J. Super. Unpub. Lexis 2439
Decided: November 2, 2018
Unless a dog owner “purposefully or negligently conceals a particular known hazard,” an independent contractor, such as a dog groomer, who agrees to care for a dog could not assert a claim under the dog-bite statute.
Background
Plaintiff Cichoski sued Defendants Richard and Carol Turick seeking damages for injuries sustained when Plaintiff, who was a dog groomer, was bitten by Defendants’ dog, Harrison – a golden retriever. Plaintiff alleged Defendants were strictly liable under N.J.S.A. 4:19-16 – the “dog- bite statute” and negligent in failing to control their dog. Plaintiff obtained her dog-grooming certification in June 2010. Beginning in 2011, Defendants brought Harrison to Plaintiff for grooming and informed Plaintiff the dog “was a little problematic.” Plaintiff claimed she understood this statement to mean Harrison did not “care to be groomed.” Plaintiff placed a muzzle on the dog every time she groomed him because she did not “want any of [her] employees to get hurt and [she] felt it was safer.” Plaintiff groomed Harrison six or more times before June 6, 2013 when Plaintiff was bitten. On that date, Defendant arranged to have Plaintiff bathe the dog, cut his hair, clean his ears and trim his nails. As she had done in the past, Plaintiff put a muzzle on the dog. After Harrison was bathed/dried and with no indication the dog was agitated or aggressive, Plaintiff began to trim the dog’s hair around his rear, when the dog suddenly pulled the muzzle off, whipped around and bit Plaintiff once on her left arm.
Defendants filed a summary judgment motion, which the Trial Court granted, enunciating the principles of Reynolds v. Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999), which held that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner under N.J.S.A. 4:19-16 unless the dog owner “purposefully or negligently conceals a particular known hazard from the” independent contractor. The Trial Court found that Reynolds applied to persons like Plaintiff, who are engaged in the commercial dog-grooming business.
Holding
The Appellate Court affirmed detailing the prima facie case for a Plaintiff to recover under the dog-bite statute and explaining the exception to the imposition of strict liability cited in their decision in the Reynolds case. The Appellate Court clarified that the principles enunciated in Reynolds were not confined to veterinarians and applied to any independent contractor who “agree[s] to care for a dog.” The Appellate Court further stated: “Such persons include individuals like plaintiff, who are engaged in the business of grooming dogs. These individuals are ‘aware of the risk that any dog, regardless of its previous nature, might bite while being’ groomed.”
Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.
MacKenn v. Agios Haralambos Corp.
New Jersey Superior Court, Appellate Division
No. A-1688-17T2
Decided: October 31, 2018
Superior Court affirms Trial Court’s grant of summary judgment because Plaintiff could not establish notice of a dangerous condition.
Background
Plaintiff MacKenn claimed that, as she entered the diner, owned and operated by Defendant Agios Haralambos Corp., she fell on a raised portion of a weather mat located in the diner’s vestibule area and sustained injuries. The diner moved for summary judgment which was granted by the Trial Court. Plaintiff appealed.
Holding
The Court affirmed the Trial Court’s decision and held that there was no evidence of how long the mat had been raised prior to the fall. Thus, Plaintiff could not establish that the diner had actual or constructive notice of the alleged dangerous condition. Interestingly, the Superior Court noted that the record included a security video that showed the mat and Plaintiff’s fall. Giving Plaintiff the benefit of all favorable inferences, the video depicted the mat having a slightly raised portion in the right-hand corner nearest to the door. However, the video clearly depicted that Plaintiff did not trip on the raised portion of the mat as alleged.
Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.
Alevras v. Barletti
New Jersey Superior Court, Appellate Division
No. A-0956-17T2, 2018 N.J. Super. Unpub. LEXIS 2388
Decided: October 29, 2018
Under the “litigation privilege,” a statement made in the course of judicial proceedings, by a person authorized to make the statement, to achieve the objectives of the litigation, and related to the underlying action, is absolutely privileged.
Background
Plaintiff Alevras appealed the dismissal of his defamation complaint. Alevras worked as a paralegal. Although he had a law degree, he was not admitted to practice law in New Jersey. Alevras was hired by an attorney, Audwin Levasseur, Esq., to assist in the representation of a client. Defendant Barletti represented the parties sued by Levasseur’s client. In May 2017, Barletti submitted a letter in opposition to a motion filed on behalf of Levasseur’s client. In addition to referring to the motion as baseless, Barletti wrote: “Importantly, I must note that it is apparent to me that it is plaintiff’s paralegal, Chris Alevras, who is a convicted felon and a pathological liar, that is filing these motions.”
Alevras sued for defamation, alleging that Barletti’s characterization of him as “a pathological liar” was false and that the letter falsely implied that he was engaging in the unauthorized practice of law. The Trial Court dismissed Alevras’s complaint, finding that Barletti’s statements were absolutely immune from a defamation claim under the “litigation privilege” because the statements were made in a judicial proceeding, by a person authorized to make those statements, to achieve the objectives of the litigation, and had some connection or logical relation to the underlying action. The Appellate Division affirmed for the reasons expressed in the Trial Court’s opinion.
Holding
Under the “litigation privilege,” statements are immune from defamation claims when those statements: (1) are made in a judicial proceeding, (2) by a person authorized to make those statements, (3) to achieve the objectives of the litigation, and (4) have some connection or logical relation to the underlying action.
Questions about this case can be directed to Charles Skriner, at (908) 574-0513 or cskriner@tthlaw.com.
DC CASE SUMMARY
Steiner v. Am. Friends of Lubavitch (Chabad)
District of Columbia Court of Appeals
177 A.3d 1246
Decided: February 1, 2018
D.C. Court of Appeals adopts equitable reformation approach for interpretation of noncompete agreements.
Background
This case involves an appeal of a preliminary injunction granted by the D.C. Superior Court and the Trial Court’s application of the equitable reformation doctrine to revise noninterference and noncompete clauses in an employment contract between Rabbi Yehuda Steiner and the American Friends of Lubavitch (“AFL”), a nonprofit religious organization. Rabbi Steiner and his wife initially moved from Brooklyn, New York, to Washington, D.C. in 2008, when Rabbi Steiner was hired by AFL to run the campus outreach program at the George Washington University (GW). Rabbi Steiner butted heads with Rabbi Levi Shemtov, the head of AFL’s Washington office, who attempted to fire Rabbi Steiner. Rabbi Steiner challenged his termination before a Rabbinical Court, where he prevailed, and entered into a subsequent employment contract that included non-compete and non-interference clauses which form the basis of this appeal.
After Rabbi Steiner’s employment was terminated a second time, the Steiners continued to engage in religious outreach activities at GW. Rabbi Shemtov and the AFL sued the Steiners for breach of contract and AFL also sought and obtained a preliminary injunction to prevent the Steiners from competing or interfering with the organization’s on-campus activities at GW. The Steiners appealed the injunction and argued, among other things, that the injunction violated their rights under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act, and that the Trial Court erred in applying the doctrine of equitable reformation to the noncompete and non-interference clauses in order to make reasonable modifications to the clauses rather than employing the more rigid “blue pencil rule,” which is favored in Maryland, and would have required the Court to simply strike out unenforceable provisions.
Holding
The D.C. Court of Appeals rejected the Steiners’ arguments that the employment agreement involved religious interpretation and found that the dispute could be resolved based on neutral principles of law. The Court then formally adopted the doctrine of equitable reformation to modify overly broad or otherwise unenforceable provisions in noncompete clauses, but held that the Trial Court erred by modifying the noncompete clause to prohibit activities conducted by the Steiners in their personal capacity. The Court of Appeals vacated the preliminary injunction order and remanded the case to allow for the Trial Court to assess how to properly enforce the employment agreement consistent with the Court of Appeals’ guidance.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.
VIRGINIA CASE SUMMARY
Parker v. Carilion Clinic
Virginia Supreme Court
No. 170132
Decided: November 1, 2018
Virginia law does not create a cause of action for negligence per se where a hospital fails to protect patient’s records against disclosure in violation of HIPAA.
Background
The patient received a diagnosis of a condition from her OB/GYN at one of the Hospital’s facilities. While awaiting treatment at another Hospital facility for unrelated conditions, the patient began conversing with an acquaintance. A staff member at the second facility who knew the acquaintance accessed the patient’s file, and discovered the diagnosis. She then contacted a coworker at a third facility run by the Hospital and told the coworker about the diagnosis. The co-worker revealed the diagnosis to the acquaintance, who in turn revealed the disclosure to the patient. The patient sued the hospital for vicarious liability based on its employees unauthorized disclosures, for direct liability for failing to secure her confidential records, and for negligence per se based on HIPAA’s statutory requirements to secure records to prevent unauthorized disclosures.
Holding
Under Virginia law, the doctrine of negligence per se only applies where the duty exists at common law. A duty of care does not arise by virtue of a statute, rather the statute sets out the standard of care for the existing duty. Because Virginia has no common law tort duty requiring healthcare providers to protect confidential records from unauthorized access by employees, no negligence per se cause of action exists. The Court distinguished this duty of non-disclosure from the duty to protect the records, the former being a recognized common law duty. The Court declined to create a new duty to protect records from unauthorized disclosure, recognizing that the possibility of vicarious liability would be even more attenuated than in a negligence per se case founded upon unauthorized disclosure.
Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.