Holding: In a pharmaceutical liability claim against a drug manufacturer, in order to avoid having the claim barred by the learned intermediary doctrine, the plaintiff must prove that the prescribing physician would not have prescribed the drug had the manufacturer provided a different.
1.2. Evidence – Intoxication
► Commonwealth Court of Pennsylvania
♦ Lock v. City of Philadelphia
No. 1637 C.D. 2005 (March 27, 2006)
Holding: When recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication. Blood alcohol content alone may not be admitted for the purpose of proving intoxication; there must be other evidence showing that the actor's conduct suggests intoxication. Although this case does not change existing law, it does provide an excellent summary of the law and related issues.
1.3. Medical Malpractice – MCare Fund
► Commonwealth Court of Pennsylvania
♦ Bender v. Pennsylvania Insurance Dept.
No. 912 C.D. 2005 (February 15, 2006)
Holding: Under the MCare Act, 40 P.S. § 1303.101 et seq., a doctor is not entitled to first dollar indemnity and cost of defense coverage in an indemnification action separate from the underlying malpractice action, to which the doctors were not a party.
1.4. Motor Vehicles Claims – Limited Tort Threshold
► Superior Court of Pennsylvania
♦ Long v. Mejia
2006 PA Super 69 (March 30, 2006)
Holding: Affirming the long-standing rule that a defendant takes a plaintiff as he finds him, the Court rules that the determination of whether a particular injury rises to the level of a serious bodily injury under the Motor Vehicle Financial Responsibility Law requires an examination of how a particular injury effects the specific person injured. Thus, a broken pinky may not be a serious bodily injury to most people, but would be to a violinist or neurosurgeon who requires fine motor skills to retain employment.
1.5. Motor Vehicle Insurance – UM/UIM Coverage Elections
► Superior Court of Pennsylvania
♦ Blood v. Old Guard Insurance Co.
2006 PA Super 44 (March 2, 2006)
Holding: When a motor vehicle insurance coverage form contains an explicit option for selecting lower underinsured motorist benefits, and the selection was not made, nor was it crossed off or otherwise rendered inoperable, the statutory presumption of UIM policy limits equivalent to the bodily injury liability limits applies.
1.6. Negligence -- Restaurants
► Superior Court of Pennsylvania
♦ Campbell v Eitak, Inc.
2006 PA Super 26 (February 10, 2006)
Holding: The prompt summoning of medical assistance satisfies a restaurant's duty to a patron who is choking, and restaurant employees are under no legal duty to administer the Heimlich maneuver or take similar action.
1.7. Unfair Trade Practices and Consumer Protection Law
► Superior Court of Pennsylvania
♦ Lesoon v. Metropolitan Life Insurance Co.
2006 PA Super 67 (March 28, 2006)
Holdings: (1) The UTPCPL is governed by a six-year statute of limitations. If the injured party is reasonably unaware of its right to sue, the statute of limitations is tolled by the discovery rule.
(2) Compensatory damages under the UTPCPL should be calculated in relation to the terms of the underlying transaction that gave rise to the UTPCPL violation.
2. Workers' Compensation
2.1. Average Weekly Wage Calculations
► Commonwealth Court of Pennsylvania
♦ Borough of Heidelberg v. Workers' Compensation Appeal Board (Selva)
No. 1627 C.D. 2005 (March 15, 2006)
Holding: Under Section 601 of the Workers' Compensation Act, a volunteer emergency medical technician who suffers a work-related injury is entitled to an irrebuttable presumption that his or her wages shall be at least equal to the statewide average weekly wage.
♦ Burkhart Refractory Installation v. Workers' Compensation Appeal Board (Christ)
No. 2275 C.D. 2005 (March 28, 2006)
Holding: When an application of Section 309(d.2) does not permit a determination of an employee's average weekly wage that reflects economic reality, the WCJ may use an alternative method of calculation the AWW. In this case, because claimant had worked less than 13 weeks at the time of the injury, did not have an expected number of weekly hours to work, only worked 12 of the 16 weeks during which he was employed, calculating the AWW by dividing claimant's gross wages by 12 was permissible.
2.2. Injuries and Diseases
► Commonwealth Court of Pennsylvania
♦ City of Philadelphia v. Workers' Compensation Appeal Board (Cospelich)
No. 1003 C.D. 2005 (February 15, 2006)
Holding: Hepatitis C, found to be contracted while working as a fireman, constitutes an occupational disease under both Section 108(m), before its amendment, and subsection (m.1) of the Act (the 2001 amendment to the Act).
2.3. Penalties
► Supreme Court of Pennsylvania en banc
♦ Snizaski v. Workers' Compensation Appeal Board (Rox Coal Co.)
No. 36 WAP 2004 (February 22, 2006)
Holding: When an employer files a timely request for supersedeas pursuant to the Appeal Board's regulations, it cannot be subject to a penalty award for failing to pay the underlying benefit during the pendency of the supersedeas petition. Fund reimbursement may be made for all payments actually made after supersedeas denial, including payment of benefits awarded retroactively for earlier periods of disability. Justice Newman filed a dissenting opinion.
2.4. Statutes of Limitation
► Commonwealth Court of Pennsylvania
♦ Budd Baer, Inc. v. Workers' Compensation Appeal Board (Butcher)
No. 1770 C.D. 2005 (February 9, 2006)
Holding: The three-year statute of limitations applies to petitions filed more than three years after approval of a commutation.
2.5. Supersedeas Fund Reimbursement
► Commonwealth Court of Pennsylvania en banc
♦ Mark v. Workers' Compensation Appeal Board (McCurdy)
No. 2753 C.D. 2005 (March 10, 2006)
Holding: Supersedeas fund reimbursement may be made for all payments actually made after supersedeas denial, including payment of benefits awarded retroactively for earlier periods of disability.
2.6. Vocational Interviews
► Commonwealth Court of Pennsylvania
♦ Linton v. Workers' Compensation Appeal Board (Amcast Industrial Corp.)
No. 1915 C.D. 2005 (March 28, 2006)
Holding: An employer is not limited to and may request that an employee undergo more than one interview by a vocational expert. The Court added that the determination to grant or deny a request for a vocational examination is within the sound discretion of the Workers' Compensation Judge, and will not be reversed absent an abuse of discretion.
♦ Hodges v. Lumberman's Feinstein, Raiss, Kelin & Booker, LLC
No. A-5903-04T3 (March 8, 2006)
Holding: A law firm representing a landlord in a summary dispossess action is a “debt collector” subject to the Fair Debt Collection Practices Act, if the firm regularly engages in a practice prosecuting summary dispossess actions.
1.2. Products Liability/Pharmaceutical Claims
► Superior Court, Appellate Division
♦ Rowe v. Hoffman-LaRoche, Inc.
No. A-4522-03T3 (February 28, 2006)
Holding: New Jersey is the proper venue, and New Jersey products liability law applies, to claims alleging that a pharmaceutical product manufactured in the state was unsafe; therefore, the domicile of plaintiff and/or the location where the injury occurred are merely fortuitous.
Remember, visit the new Pennsylvania Legal Research Links, and make www.palegallinks.com your home page for Pennsylvania research.
District Of New Jersey Court
REPORTING DECISIONS THROUGH AUGUST 1 2006
PENNSYLVANIA STATE COURT DECISIONS
1. CIVIL LITIGATION
1.1. AUTOMOBILE INSURANCE
*Superior Court of Pennsylvania
*Santorella v. Donegal Mutual Insurance Co., 2006 PA Super 202 (July 31, 2006)
Holding:An individual who owns a registered, uninsured motor vehicle – in a state other than Pennsylvania – is precluded from receiving first party medical benefits under a policy issued to another member of the individual's household. In this case, plaintiff David Santorella, Jr., owned an uninsured car registered in California. The Superior Court denied the plaintiff first party benefits under 75 Pa.C.S.A. § 1714 “because the word ‘registered” is not qualified by the words ‘in this Commonwealth' in the statute, we … refuse to read into the section an exception it does not explicitly declare…”
*Wheeler v. Nationwide Mutual Fire Insurance Co., 2006 PA Super 197 (July 31, 2006)
Holding:An individual whose motor vehicle insurance policy – on which he or she is a named insured – does not provide income loss, may not recover first party income loss benefits from the insurance policy covering the motor vehicle he or she was driving at the time of the accident.
1.2. DAMAGES
*Superior Court of Pennsylvania
*Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 2006 PA Super 164 (July 7, 2006)
Holding:A utility company is considered to be in the business of supplying information when acting in compliance with the Pennsylvania One Call System and is therefore subject to Section 552(2) of the Restatement (Second) of Torts. In addition, the Court adopts Section 552(3) for negligent misrepresentation cases that arise under the One Call Act. Finally, the Court holds that the economic loss doctrine – which states that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage – does not automatically apply when only economic losses are alleged. Rather, if, in a negligent misrepresentation claim, (1) the defendant was in the business of supplying information, and (2) it was foreseeable that the information would be used and relied upon by third parties, the claim may proceed under Section 552 of the Restatement, and the economic loss doctrine is inapplicable.
1.3. MEDICAL MALPRACTICE CLAIMS & CIVIL PROCEDURE/PLEADINGS
*Superior Court of Pennsylvania
*Rostock v. Anzalone, 2006 PA Super 191 (July 26, 2006)
Holding:A complaint may be dismissed under the doctrine of lis pendens based upon the pendency of a prior action or an agreement for alternative dispute resolution. The mere filing of a second complaint, identical in all respects to the first with the sole exception that the second complaint alleged, “This is a medical malpractice action,” does not make the defense of lis pendens unavailable.
*McSorley v. Deger, 2006 PA Super 200 (July 31, 2006)
Holding:In a claim alleging lack of informed consent, it is a jury question whether the doctor's actions were within the terms of the consent provided by the patient. In this case, the pre-surgery consent form permitted the physician to perform such surgical or other procedures as are necessary and desirable in the event of unforeseen conditions that necessitate an extension of the original procedure.
2. CIVIL PROCEDURE
2.1. FORGERY
*Superior Court of Pennsylvania
*De Lage Landen Financial Services, Inc. v. The Urban Partnership, LLC, 2006 PA Super 169 (July 12, 2006)
Holding:Generally, when an allegation of forgery is raised – in this case, it was alleged that the document conferring jurisdiction in Pennsylvania was forged – the party claiming forgery has the burden of proving the existence of a forgery by clear and convincing evidence. Because the allegation of forgery raises an issue of fact, resolution of the issue will turn upon the court's assessment of the witnesses' credibility; however, there is no legal requirement that a party alleging forgery present a handwriting expert to support the claim.
Holding:Affirming its decision in County of Allegheny (Dept. of Public Works) v. Workers' Compensation Appeal Board (Weis), 872 A.2d 263 (Pa.Cmwlth. 2005), the Court holds that, in order for disability compensation to continue following retirement, a claimant must show that he or she is seeking employment after retirement and that he was forced into retirement because of his work-related injury. It is the claimant's burden to show that he or she has not withdrawn from the entire work force.
Holding:A Notice of Compensation Payable is properly amended to include depression and anxiety when a claimant proves that the work injury was a substantial contributing factor to the psychological injury/diagnosis.
3.3. SUBROGATION
*Superior Court of Pennsylvania
*Urmann v. Rockwood Casualty Insurance Co., 2006 PA Super 201 (July 31, 2006)
Holding:A settlement agreement, which apportions a settlement between an injured worker's claim and the worker's spouse's loss of consortium claim, will not be overturned when it is adjudicated by the trial court based upon an evidentiary hearing and the execution of a settlement agreement. In this case, the facts demonstrate that the trial court attempted to assure that the apportionment was fair and consistent with Darr Construction Co. v. Workmen's Compensation Appeal Board (Walker), 522 Pa. 400, 715 A.2d 1075 (1998).
Holding:Because the claimant failed to raise/preserve the issue before the Workers' Compensation Judge of whether an impairment rating under Section 3006(a.2) of the Act, 77 P.S. § 511.2(1), precludes a termination of benefits, the Court declines to address the issue.
NEW PENNSYLVANIA RULE OF CIVIL PROCEDURE
PA.R.CIV.P. 204.11 (FORMAT OF PLEADINGS AND OTHER LEGAL PAPERS)
*Effective February 1, 2007, all pleadings, motions and other legal papers must conform to the following requirements:
1. Documents must be on 8-1/2 by 11 inch paper
2. Documents shall be on white paper (except dividers and similar sheets)
3. The first sheet shall contain a 3-inch space at the top for court stampings, filing notices, etc.
4. Text must be double-spaced
5. Quotations more than two lines long may be indented and single spaced
6. Margins must be at least one inch on all four sides
7. Letter shall be clear and legible, and no smaller than 12 point in size
8. Lettering shall be on only one side of a page (except for exhibits and supporting documents)
9. Documents must be firmly bound.
NEW JERSEY STATE COURT DECISION
WORKERS' COMPENSATION -- INTOXICATION
*Supreme Court of New Jersey
*Tluma v. High Bridge Stone, No. A-69-05 (July 19, 2006)
Holding:In order for the statutory defense of intoxication to bar the recovery of workers' compensation benefit, an employer must prove by a preponderance of the evidence that the employee's work-related injuries were caused solely by intoxication.
Remember, visit Pennsylvania Legal Research Links, and make www.palegallinks.com your home page for Pennsylvania research.
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