SIGNIFICANT LEGAL DECISIONS

Riegel v. Medtronics
U.S. Supreme Court
February 20, 2008

United States Supreme Court holds that makers of medical devices, such as implantable defibrillators or breast implants, are immune from civil liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and the device meets the FDA’s specifications.

Background:  In an 8-1 decision the U.S. Supreme Court held that makers of medical devices that had gone through the FDA’s pre-market approval process specified by the Medical Device Amendments of 1976 are immune from civil liability. Because federal law makes no provision for damage suits against makers of medical devices, injured patients have turned to state law to obtain recovery, many of which have been substantial. The Court determined that devices subject to the pre-market approval process tend to be more technologically advanced, expensive, and, in some instances, risky. In the majority opinion, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device “disrupts the federal scheme” under which the FDA has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use.

Outcome:  The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The patient died subsequent to the initiation of the lawsuit. The device in question had won FDA approval in 1994, two years before the accident. The medical device statute contains a pre-emption clause that bars states from imposing any requirement related to a medical device that is “different from, or in addition to” a federal requirement. The holding of the Court turned on the interpretation of what Congress meant by the phrase “any requirement”. Justice Scalia’s opinion said that state tort law, by imposing duties of care on medical product makers, amounted to just such an additional requirement which was specifically pre-empted by the Medical Device Amendments of 1976.

It appears that the scope of the Court’s ruling is limited to claims based upon a theory of improper design. To the extent that a claim is based upon improper manufacture of the device, i.e. a deviation from the approved design, the Court’s ruling does not appear to foreclose such lawsuits.

The Court is scheduled to hear an appeal to determine whether pre-emption applies in cases where the FDA has approved a drug, as opposed to a medical device.

Any questions regarding this opinion should be directed to C. Kent Price at (717) 255-7632 or kprice@tthlaw.com.

C.C.H. v. PHILADELPHIA PHILLIES, INC.
2008 Pa. Lexis 99
Decided February 19, 2008

The Pennsylvania Supreme Court rules that consent cannot be asserted as an affirmative defense to a civil claim for sexual battery where the victim is less than thirteen years of age.

Background:  An eleven-year-old girl was sexually assaulted by three sixteen-year-old boys during a Philadelphia Phillies baseball game. The girl’s parents, on her behalf, sued the three teens and the Phillies. At the trial, the teen Defendants presented evidence of the minor Plaintiff’s consent to the sexual contact. Plaintiffs objected to the evidence of consent, asserting that consent would not be a defense if the teens were charged criminally; thus, consent should not be available as a defense in a civil action. The trial court and the Superior Court disagreed with Plaintiffs, and the jury found for all Defendants. The Phillies were sued solely on a negligence theory for not following their “lost people policy” because a stadium usher did not aid the minor Plaintiff when she requested his help in locating her parents after she became separated from them. The jury found that the Phillies were not negligent.

Outcome:  In a case of first impression, the Supreme Court held that testimony concerning a plaintiff’s consent to sexual contact cannot be introduced in support of the affirmative defense of consent where the plaintiff is under age thirteen, and remanded for a new trial.

Plaintiffs had requested a jury instruction based on the Pennsylvania Crimes Code, which makes it a crime to engage in intercourse with a minor under thirteen years of age regardless of the minor’s consent. The trial court denied this requested instruction, which the Supreme Court stated was error. The Pennsylvania Supreme Court found that the Pennsylvania Legislature, by enacting the criminal statute at issue, expressed an intent to protect children under thirteen from sexual exploitation, and to reject “in equal force” in both civil and criminal contexts that a child under thirteen years of age has the capacity to consent to sexual contact.

Any questions regarding this case can be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.

Brink v. Erie Insurance Group
2008 Pa. Super. 7
Decided: January 4, 2008

The Pennsylvania Superior Court upholds an exclusion deleting coverage for the regular use of a non-owned vehicle, where a police vehicle fleet was available for the regular use of a police officer.

Background: Brink, a police officer, responded to an accident in a police vehicle and was injured. The other motorist did not have sufficient liability insurance, and Brink submitted a underinsured motorist claim to his personal insurer, Erie. Coverage was denied, based upon a non-owned vehicle exclusion (deleting coverage for injury while using a non-owned vehicle available for the regular use of the insured). The trial court held in favor of Erie.

Outcome: On appeal, the Superior Court affirms the trial court holding. Brink made two arguments on appeal: 1) the exclusion was ambiguous; 2) his use was not “regular”. Citing a prior case upholding an exclusion which deleted coverage arising out of the regular use by a family member, and federal court cases, the court found the exclusion not ambiguous. It held that the vehicle must be habitually used, as opposed to occasionally or incidentally used. Although Brink did not always use the particular police vehicle involved in the accident, or any police vehicle on a daily basis, the police fleet was available to him, and the court finds that the use was regular within the meaning of the exclusion. The court also rejects arguments that reasonable expectations dictated coverage, based on Erie’s own agent representations, or that public policy requires coverage to be afforded.

Any questions regarding this case can be directed to Paul Walker at 717-441-7061 (pwalker@tthlaw.com).

Valora v. Pennsylvania Employees Benefit Trust Fund
2007 Pa. Lexis 2874
December 27, 2007

Pennsylvania Supreme Court affirms dismissal of retirement plan’s late subrogation claim for reimbursement of medical payments against a third party medical malpractice recovery on grounds of equity and waiver

Background:  A state police officer’s son, who was a dependent under the Pennsylvania Employees Benefit Trust Fund [PEBTF], was born with severe mental retardation and physical disabilities. A medical malpractice action was filed on his behalf against the hospital and physicians involved in his birth, which resulted in a structured settlement over three years later. Six months after the trial court approved the settlement, PEBTF asserted a subrogation claim in excess of $200,000 for medical expenses paid on behalf of the child. PEBTF asserted its subrogation rights pursuant to contractual language contained in the State Police Handbook. The trial court held that although there was a contractual right of subrogation, PEBTF had waived this right by failing to raise the claim until after the case was settled. The Superior Court and Supreme Court affirmed.

Outcome: The Supreme Court held that PEBTF had waived its contractual right of subrogation, since it failed to exercise reasonable diligence in pursuing its claim while the malpractice claim was pending. The Court based its decision upon principles of equity, noting that the doctrine of subrogation has its origins in equity, even where the right to subrogation is contractually declared. The Court held that the fact that a right to subrogation stems from a contract does not render equitable considerations irrelevant.

Any questions regarding this case may be directed to Cynthia O’Donnell @ codonnell@tthlaw.com (412-697-7403)

Carroll v. Avallone
2007 Pa. LEXIS 2928
Decided: December 28, 2007

Supreme Court holds that an expert’s opinion on future economic damages can be controverted through cross-examination alone.

Background:  Kelly Ann Carroll died as a result of a stroke, after which her husband instituted a medical malpractice action. During the trial, the Plaintiff introduced the expert opinions of an actuary with regard to future loss of earning capacity, fringe benefits and household services. The projections ranged between $832,498 and $1.4 million. On cross-examination, the defense brought out that the Decedent was unemployed at the time of her death and not yet trained for the nursing careers the actuary used to base his projections. The jury split liability 50/50 and returned a damages verdict equal to the stipulated amount of medical and burial expenses.

On appeal, the Plaintiff claimed the evidence offered by the actuary was uncontroverted by opposing expert testimony and that the verdict bore no reasonable relationship to the evidence presented. The Superior Court agreed and remanded the case for a new trial on damages.

Outcome:  The Supreme Court reversed, holding that the cross-examination of the Plaintiff’s expert was sufficient to call into question several of the factual assumptions underlying the expert’s projections of future economic losses. Because the defense did not concede that the Decedent would have returned to employment in any capacity mentioned by the expert and was actually earning nothing at the time of her demise, the jury was free to reject the opinion testimony offered at trial.

Any questions regarding this case can be directed to Kevin McNamara at 717-237-7132 or kmcnamara@tthlaw.com.

Nationwide Mutual Insurance Company v. Yungwirth
2008 Pa. Super. 10
Decided January 4, 2008

Superior Court holds that insurance policy may exclude ATVs from the definition of “uninsured motor vehicle.”

Background:  Anthony Yungwirth was a passenger on an all terrain vehicle (“ATV”) that was not covered by any insurance and that was involved in an accident, resulting in injury to Yungwirth. Yungwirth resided in his father’s household and was insured under two automobile policies issued by Nationwide, both of which contained UM coverage. Each of the Nationwide policies had an identical provision excluding from the definition of “uninsured motor vehicle” “any equipment or vehicle designed for use mainly off public roads except while on public roads.” Nationwide denied UM coverage to Yungwirth based upon this exclusion. A declaratory judgment action was filed and at trial, the court ruled that the provision excluding ATVs from the definition of uninsured motor vehicles was contrary to the Motor Vehicle Financial Responsibility Law (“MVFRL”) and found in favor of Yungwirth.

Outcome:  On appeal, Nationwide argued that the exclusion of ATVs from the definition of uninsured motor vehicles was not contrary to the MVFRL because the Snowmobile All Terrain Vehicle Law (“SATVL”) created a special class of vehicles which are separate and distinct from other forms of motor vehicles as contemplated by the MVFRL, and therefore the Nationwide policy did not impermissibly narrow UM coverage mandated by the MVFRL.

The Superior Court examined the interplay between the MVFRL and the SATVL. It noted that the MVFRL defines an “uninsured motor vehicle” as “a motor vehicle for which there is no liability insurance or self insurance applicable at the time of the accident.” It further noted that the MVFRL does not provide a definition of the term “motor vehicle.” The SATVL, however, provides a definition for ATV, as “a motorized off-highway vehicle . . .” and that under the SATVL, an ATV falls within the category of “a recreational vehicle not intended for highway use.” The court stated that it was clear from the plain language of the SATVL that the legislature intended to create separate and specific requirements applicable only to snowmobiles and ATVs. The court held that the specific provisions of the SATVL supersede the general definition of a motor vehicle contained in the vehicle code; therefore, the provision of the Nationwide policy which excluded ATVs from the definition of “uninsured motor vehicle” was permissible.

Any questions regarding this case can be directed to Gordon Einhorn at 717‑441‑7054 or geinhorn@tthlaw.com.

Gillette v. Wurst
2007 Pa. LEXIS 2890
Decided: December 28, 2007

The Pennsylvania Supreme Court holds that a party claiming entitlement to payment under the Wrongful Death Statute may not disclaim her share of those proceedings once offered, when her disclaimer effectively negates the valid entitlement to subrogation of a workers’ compensation insurer.

Background:  The decedent, a teacher, was shot and killed by a student while chaperoning a school dance. The school’s workers’ compensation provider paid fatal claim benefits to decedent’s widow. The widow, as executor of the decedent’s estate, then commenced a Wrongful Death action against the shooter and his parents. The limits of the homeowners’ insurance policy were offered to settle the case. Pursuant to the settlement agreement, the decedent’s widow proposed to disclaim her portion of the proceeds, with the exception of funeral expenses. The remaining settlement funds were to be distributed to decedent’s children. The parties petitioned the trial court for approval of settlement but the workers’ compensation provider filed a petition to intervene, asserting it was entitled to subrogate the widow’s share of the settlement to recover fatal claim benefits paid to her. The trial court held it was without jurisdiction to resolve the subrogation issue and approved the proposed wrongful death settlement.

Outcome:  The Pennsylvania Supreme Court reversed the trial court. The Court first found that the trial court did have jurisdiction to resolve the issue involving workers’ compensation subrogation since said issue did not arise solely under the Workers’ Compensation Act. The Court then acknowledged that “[t]he Workers’ Compensation Act provides an absolute right of subrogation, and its purpose is threefold: it prevents double recovery by the claimant for the same injury, it ensures that an employer is not required to pay for the negligence of a third party, and it prevents a third party from escaping liability for his wrongful conduct.” Although there is a right to disclaim pursuant to the Probate, Estates and Fiduciaries Code, the clear language of § 671 of the Workers’ Compensation Act provides that the employer “shall” be subrogated. The worker’s compensation provider which has paid benefits is subrogated not to the amount actually received, but rather, to the share that the person has the right to receive. Therefore, under the circumstances where workers’ compensation benefits were paid, the decedent’s widow did not have the right to disclaim.

Any questions regarding this case can be directed to Stephanie L. Hersperger at 717-255-7239 (shersperger@tthlaw.com).

Bell v. Kater
2008 PA Super 18
February 13, 2008

The Affirmative Defense of Workers’ Compensation Immunity Must Be Raised By Preliminary Objection or in New Matter to the Answer or is Deemed Waived.

Background: The defendant was involved in a car accident in her employer’s parking lot when she struck and injured the plaintiff, a co-employee, in 1999. There was an issue as to whether the defendant was acting within the course of her employment at the time. The plaintiff filed for and received Workers’ Compensation benefits and in 2000 filed a personal injury suit against the defendant. The case proceeded to trial in 2002, resulting in a verdict in favor of the plaintiff. At no time during the course of the litigation did defendant raise the issues of “co-employee immunity” and lack of jurisdiction under Section 72 of the Workers’ Compensation Act. In 2005, three years after the trial, defendant filed a petition to strike the judgment, claiming that Workers’ Compensation immunity was a jurisdictional bar which cannot be waived and that the defense of lack of subject matter jurisdiction can be raised at any time. Thus, defendant was of the position that the Act divested the lower court of jurisdiction ab initio, i.e. from the beginning.

Outcome:  The trial court denied the petition to strike the judgment and the Superior Court affirmed that decision. The appellate court noted the mere fact that both parties were employed by the same employer at the time of the accident was not sufficient to show that they were in the same employ at the time of the accident. To the contrary, the determination of that issue was a fact issue requiring resolution in the lower court prior to the conclusion of the underlying claim. Had the issue of immunity been raised and litigated, and determined in the defendant’s favor, the Act would have immunized the defendant from liability to the plaintiff. However, defendant was deemed to have waived the affirmative defense of immunity by not raising it prior to the conclusion of trial.

The Superior Court also noted that a judgment may be attacked for lack of jurisdiction at any time as any judgment rendered by a court which lacks subject matter jurisdiction is null and void. However, the Court then stated that while jurisdiction cannot be waived, “it is not conceded that there is any problem with the court’s jurisdiction in this case.” Although the defendant alleged in her petition to strike that the plaintiff’s claim was jurisdictionally barred under the Act, the Court noted that defendant had never shown that the Act applied to the plaintiff’s claim because she had never raised the issue in a timely manner before the trial court by way of preliminary objection or new matter. “Before one can say there is no jurisdiction in the common pleas court, the claim of immunity must be raised and determined in favor of the defendant.” The Court concluded that the affirmative defense of immunity was barred due to the fact that it was not raised. Therefore, although the lower court had jurisdiction to determine whether or not it was deprived of jurisdiction because of the Act, defendant’s failure to plead and present any evidence of immunity precluded her from raising the issue for the first time on appeal, filed three years after trial.

Any questions regarding this opinion should be directed to C. Kent Price at (717) 255-7632 or kprice@tthlaw.com.