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Litigation

Attendance at Defense Medical Examinations – An Update in New Jersey

By: Paul J. Smyth, Esquire

In the course of personal injury matters filed in the State of New Jersey, it is common practice for defense counsel to retain medical professionals to conduct examinations of plaintiffs to investigate the veracity and extent of the claimed injuries.  The scope of claimed injuries is obviously vast and specific to any particular case and may include medical and/or psychological components. 

Plaintiffs’ counsel may have concerns over the method with which a professional retained by defense counsel conducts his or her examination.  In such instances, plaintiffs have sought to record the examinations, either with audio or video.  As expected, defense counsel has at times objected to the examinations being recorded.  Defense counsel concerns included the potentially obtrusive nature of such a recording and the proprietary information of the examiner for the manner in which he or she conducts the examinations.  Also at issue is the proprietary nature in which an examiner conducts the examination and the desire to protect same. 

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The “Sudden Medical Emergency” Defense in New Jersey: Suggested Approaches

By: Paul J. Smyth, Esquire

Your client is involved in a motor vehicle accident in the State of New Jersey.  He claims to have suffered a loss of consciousness due to a medical condition that he never experienced before or was otherwise diagnosed with any condition that may have led to his losing consciousness.  Surely New Jersey case law has addressed this issue before, right?  Not so fast.

As of October 2022, New Jersey case law has yet to address the sudden medical emergency issue.  There is, however, established case law addressing the “sudden emergency” doctrine.  In
Harpell v. Public Service Coordinated Transport, 20 N.J. 309 (1956), the New Jersey Supreme Court affirmed the Appellate Court’s ruling affirming the trial court’s judgment entering a verdict in favor of plaintiff, Albert E. Harpell.  Mr. Harpell was a passenger on an electric trolley who was struck by a piece of concrete that had been thrown by a 15-year-old boy from a spot outside the fenced-in area that bordered the trolley route.  Plaintiff was seated by a trolley window that was equipped with a metal screen that extended half-way up the window.  The screen was designed to prevent injuries to passengers’ arms.

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Pennsylvania Supreme Court: Intentions Ambiguous in Shooting During Fistfight

By Patrick T. Casey, Esquire

The Pennsylvania Supreme Court recently issued an opinion on an insurer’s duty to defend in the case of Erie Insurance Exchange v. Tracy L. Moore, Harold E. McCutcheon, III, individually and as administrators of the Estate of Harold Eugene McCutcheon, Jr. and Richard A. Carly, No. 20 WAP 2018, 2020 WL 1932642 (Pa. April 22, 2020).  The court found that there was a duty to defend an insured where the acts complained of by the plaintiff were deemed potentially unintended, despite the insured’s several prior and subsequent acts of intentional violence.

The facts of the case arose from the murder of Terry McCutcheon by her ex-husband Harold E. McCutcheon, Jr. and his subsequent suicide.  Prior to these events, McCutcheon had left a note to his adult children explaining his intention to murder his ex-wife and commit suicide.  In accordance with his stated plan, McCutcheon intentionally shot and killed his ex-wife at her home.  Before he could shoot himself, however, he was interrupted by the arrival of his ex-wife’s current boyfriend, Richard A. Carly.  Carly began knocking on the door and eventually tried to enter when there was no answer.  At this point, McCutcheon suddenly opened the door and pulled Carly inside.  Continue reading →

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Waiver of Attorney Work Product and Attorney-Client Privilege Protections

Pennsylvania Supreme Court: Waiver of Attorney Work Product and Attorney-Client Privilege Protections

by Patrick Casey, Esquire

The attorney-client privilege and attorney work product doctrine are two well-known evidentiary protections. Although both protect otherwise relevant and “discoverable” materials from disclosure, the two evidentiary protections serve different purposes and are subject to different standards.

The purpose of the attorney-client privilege is to foster the free and open communication of information between the lawyer and client. Whereas, the purpose of the work product doctrine is to protect the mental impressions of an attorney acting on behalf of a client. Consistent with the purposes of these evidentiary protections, the attorney-client privilege is held by the client, while the work product protection is held by the attorney.

Recently, the Pennsylvania Supreme Court clarified the circumstances under which attorney work product protection may be waived, while distinguishing such waiver from the standard for waiver of the attorney-client privilege. Continue reading →

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Summary Judgement affirmed in Malpractice case against NJ Insurance Producer.

Summary Judgment was affirmed by the Appellate Division in a professional malpractice case against an insurance producer in a New Jersey Superior Court case. Amelia M. Lolli, Esquire was successful in obtaining summary judgment in favor of a Camden County insurance agency in a 2014 case. The summary judgment decision was appealed by the Plaintiff and oral argument was conducted by Ms. Lolli in front of the Appellate Division in January 2019. The Appellate Division affirmed the dismissal of the case by the trial court and found the insurance producer did not breach a fiduciary duty to its client.

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Pennsylvania Superior Court: No Deference Where Trial Judge Fails to Observe Voir Dire

By: Pat Casey

A common practice in many state civil courtrooms throughout Pennsylvania, certainly in its two busiest courts – the Philadelphia and Allegheny Courts of Common Pleas – has recently been found to be lacking by the Superior Court: jury selection outside the presence of a judge. When civil litigators select a jury, they use a process in which the attorneys and the court work together to search for potential hardship, bias and prejudice among the prospective jurors through a series of written and oral questions, known as voir dire (meaning roughly “to tell the truth”). Commonly in civil litigation, the trial judge does directly not participate in this process. Instead, the trial judge will delegate one of his or her staff to handle this sometimes time-consuming endeavor of narrowing down a potential juror pool of hundreds to the 8 or 12 jurors who will ultimately hear the case, along with 1 or 2 alternate jurors.

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PA Supreme Court: Minor Deviations from Underinsured Motorist Coverage Rejection Form

by Patrick Casey

Pennsylvania Supreme Court: very minor deviations from underinsured motorist coverage rejection form permitted

In Ford v. American States Insurance Company, the Pennsylvania Supreme Court recently clarified that “de minimis,” or minor, deviations from the underinsured motorist (UIM) coverage rejection form set out in Section 1731 of the Motor Vehicle Financial Responsibility Law can nevertheless “specifically comply” with Section 1731.  Ford v. American States Ins. Co., No. 13 WAP 2016, 2017 WL 694744 (Pa. February 22, 2017).

Section 1731 requires that insurers obtain the signature of any insured wishing to reject UIM coverage on a form that contains specific language dictated by the General Assembly.  Continue reading →

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Determining Realty Or Personalty For Liability Under PA Subdivision Tort Claims Act

Determining Whether Something Is A Part Of Realty Or Personalty For Purposes Of Liability Under The Pennsylvania Subdivision Tort Claims Act

By: Steven M. Liero, Esquire

When an action is brought against a political subdivision, such as a school district or a municipality, a question arise whether the claim falls within an exception to the immunity enjoyed by the subdivision.

Most often claims are brought pursuant to the real estate exception contained in 42 Pa. C.S.A. § 8542(b)(c). To invoke this section, the plaintiff must show that a) the injury resulted from a defective condition that b) stemmed from the care, custody or control of real estate, not personalty. Mellon v. City of Pittsburgh Zoo, 768 A.2d 921 (Pa. Cmwlth 2000). The question becomes more complicated when the real estate contains not only a building or grounds around the building, but a device attached to the building. As an example, a question arises whether a metal cleat, attached to a gym wall in a school on which a person is injured is part of the realty itself or simply an item of personalty. If the latter, the plaintiff’s injury would not fall within the real estate exception to immunity and that person could not recover for pain and suffering. Continue reading →

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Delay Damages in a UM Case are Based on the Molded Verdict and Not the Jury Award

By: Steven M. Liero, Esquire

On December 28, 2012, the Pennsylvania Supreme Court, in Marlette, et al. v. State Farm Mutual Automobile Insurance Company, 57 A.3d 1224 (2012) a series of consolidated cases held that delay damages in an uninsured motorist action are calculated on the verdict as molded by the Court, not on the full amount originally awarded by the jury. Continue reading →

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