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TT&H eNotes Liability: December 2016


TT&H LAWYERS IN COURT

Michael Burgoyne successfully defended a storm water runoff case filed against a homeowners association.

In a dispute between adjacent property owners involving storm water runoff and an alleged breach of covenants, Michael Burgoyne successfully defended the homeowners association (“HOA”). The plaintiffs alleged $100,000 in damage to their property, and also sought equitable relief which would have required the regrading of several lots.  On November 28, 2016, after a four-day trial, the Circuit Court for Howard County, Maryland denied the plaintiffs’ request for equitable relief and the jury returned a verdict against the HOA for a mere $1.00.

Questions about this case can be directed to Michael Burgoyne, at (410) 653-0460 ext. 8702 or mburgoyne@tthlaw.com.


Kevin C. McNamara wins defense verdict in property flooding case.

On November 22, 2016, Kevin McNamara won a defense verdict in the Perry County Court of Common Pleas.  The trial was conducted by the Honorable Keith Quigley.

In 2006, Attorney McNamara’s client replaced a bridge over a small creek that bisected his property.  At the time of the bridge replacement, a DEP permit was required, but the Defendant was not aware of the requirement.  The new bridge was more substantial than the one it replaced.  In 2011, in the wake of Hurricane Irene and in the midst of Tropical Storm Lee, the bridge was destroyed.  At the same time, the creek overflowed its banks and flooded three residential properties on lower lying ground. 

The Plaintiffs, owners of the flooded properties, alleged that the cause of the flooding was the obstruction of the creek by the bridge.  At trial, photographs of the area taken at the time of the flooding tended to show that the creek overflow occurred above the bridge location, likely due to a combination of extraordinary rainfall and a collection of mountain stone, sand and other debris carried down the mountain side.  These materials obliterated the stream bank leading to the flooding.  At the completion of the trial, which included multiple witnesses and experts, the jury returned a verdict in favor of Kevin’s client.

Questions about this case can be directed to Kevin McNamara, at (717) 237-7132 or kmcnamara@tthlaw.com.


Joshua Bovender wins arbitration defense award in York County.

Attorney Joshua Bovender secured a defense arbitration award in York County on November 2, 2016.  The Plaintiff was represented by a well-known Philadelphia law firm and asserted that the Defendant, an apartment complex, failed to remove an ice patch from a common area parking lot.  Josh successfully argued that the patently open and obvious patch of ice was known to the Plaintiff at the time of the fall, and in fact, that the Plaintiff tried to “tip toe” across it after realizing he was standing on it.  The arbitration panel agreed that the apartment complex did not owe a duty to Plaintiff under such circumstances.

Questions about this case can be directed to Joshua Bovender, at (717) 237-7153 or jbovender@tthlaw.com.


SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA   |   MARYLAND   |   NEW JERSEY    |   D.C.

FEDERAL CASE SUMMARY

Breen v. Millard Group, Inc.

United States District Court for the Eastern District of Pennsylvania

No. 13-6926

Decided: November 10, 2016

Without evidence of the cause or origin of spilled liquid, there is insufficient evidence for a reasonable jury to find a Defendant has constructive notice of liquid on the floor and summary judgment must be granted for Defendant.

Background

Plaintiff Breen slipped and fell on liquid while walking to the restroom at the Franklin Mills Mall. Plaintiff did not see the liquid before she fell. The liquid “was clear” and it was “dirty” or “kind of muddy,” “like somebody had already stepped in it.” There was a trail leading out of the liquid, “[a]way from [her], down the hallway,” towards the restroom. Before she fell, Plaintiff saw a group of women walking in front of her toward the restroom, but does not know if the women walked past the liquid because she did not see “exactly where they were walking”. Plaintiff did not know how the liquid got on the floor or how long it had been on the floor before she fell. She did not see a bottle, cup or can, or other debris on the floor or warning signs or cleaning carts in the hallway. Defendants claimed no actual or constructive notice of the alleged liquid and moved for summary judgement, which was granted.

Holding

In granting the Defendants’ motion, the Court explained that since Plaintiff presented no evidence that the Mall Defendants caused the liquid to be on the floor or that the Mall Defendants had actual notice of the liquid on the floor, Plaintiff had to rely on constructive notice to establish the Mall Defendant’s duty of care. Multiple factors are considered in determining whether possessors had constructive notice of a dangerous condition, including the number of persons using the premises, the frequency of such use, the nature of the defect, its location, it probable cause, and the opportunity which defendant, as a reasonably prudent person, had to remedy it. The Court stressed that the “duration of the hazard” is one of the most important factors – “if the hazard existed for a short period of time before causing any injury, then the possessor…would not discover the hazard,” even if exercising reasonable care, and “would owe no duty to protect invitees from the hazard.” Applying the above, the Court rationalized that without more evidence, a jury would be left to speculate on whether the liquid spilled on the floor moments before the group of women walked down the hallway, dirtied the liquid and created the trail, or spilled at an earlier time.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmanounas@tthlaw.com.

PENNSYLVANIA CASE SUMMARIES

Amato v. Bell and Gosset/Vinciguerra v. Bayer CropScience

Pennsylvania Supreme Court

Nos. 4 EAP 2016/5 EAP 2016

Decided: November 22, 2016

Pennsylvania Supreme Court dismisses Amato/Vinciguerra appeals as improvidently granted.

Background

Amato and Vinciguerra were both asbestos cases, wherein Plaintiffs obtained sizable verdicts against Crane Co. and other Defendants. Crane appealed to the Superior Court. Though Crane presented several issues on appeal, the most significant was a challenge to the Trial Court’s failure to warn instruction. Crane argued that the instruction was inappropriate in light of the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex. Because Tincher had overruled the prior Supreme Court decision of Azzarello v. Black Brothers and, with it, its strict separation of negligence and strict liability principles, Crane argued that the failure to warn instruction submitted to the jury should have included consideration of the reasonableness of Crane’s conduct under the circumstances.

The Superior Court rejected Crane’s argument that the Trial Court’s failure to warn jury instruction was in error. Crane’s argument at trial was not that the product was not unreasonably dangerous; rather, its argument was that the product was not dangerous at all. Accordingly, a lack of reasonableness or a state-of-the-art instruction was harmless error at best, since those were not a basis of Crane’s defense.

Crane appealed to the Pennsylvania Supreme Court arguing, among other things, that just because Crane argued that its product was not dangerous at all did not mean that it could not argue in the alternative, that if a jury found its product was dangerous, then it was not unreasonably dangerous within the meaning of Tincher. The Pennsylvania Supreme Court granted Crane’s Petitions for Allowance of Appeal in Amato/Vinciguerra, limited to the following issue:

Whether, under the Court’s recent decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), a defendant in a strict-liability claim based on a failure-to-warn theory has the right to have a jury determine whether its product was “unreasonably dangerous[?]”

Holding

The Pennsylvania Supreme Court entered per curiam Orders dismissing the Amato/Vinciguerra appeals as improvidently granted. As a result, the Superior Court’s decision in Amato stands. This decision had some good language from a defense perspective. First, the Superior Court recognized that though Tincher was a design defect case, its holding rejecting Azzarello and its strict negligence/strict liability dichotomy, also has implications in failure to warn cases. Second, Amato recognized that Tincher can require jury instructions on negligence concepts, such as reasonableness of the defendant and state of the art, where so warranted by the allegations in the case.

Questions may be directed to Kenneth Newman, at (412) 926-1425 or knewman@tthlaw.com.


Valentino v. Philadelphia Triathlon, LLC

Pennsylvania Superior Court

No. 3049 EDA 2013, 2016 Pa. Super. 248

Decided: November 15, 2016

Superior Court grants summary judgment in favor of triathlon company on the basis that the deceased participant signed a valid waiver disclaiming liability.

Background

Philadelphia Triathlon, LLC organized an event known as the Philadelphia Insurance Triathlon Sprint in and around the City of Philadelphia in 2010. The Triathlon consisted of three events, including a one-half mile swim in the Schuylkill River, a 15.7 mile bicycle race and a 3.1 mile run. The deceased, Derek Valentino, registered for the event on January 24, 2010. As part of the registration process, Valentino executed a waiver and release form and paid an entrance fee. The registration process had to be completed prior to participation in the event. On June 26, 2010, at 8:30 AM, Valentino entered the Schuylkill River to compete in the first portion of the Triathlon. The following day Valentino’s body was retrieved from the Schuylkill River.

Plaintiff, Michele Valentino, in her own right and as administratrix of the estate of Derek Valentino, appealed from the Philadelphia Court of Common Pleas grant of Philadelphia Triathlon’s Motion for Summary Judgment. On appeal, Plaintiff asserted that the Trial Court committed error in granting summary judgment in favor of Philadelphia Triathlon arguing that a question of fact remained as to whether the waiver and release in question was effectively executed by Valentino and, if it was, whether it was enforceable as a matter of law.

Holding

The Superior Court affirmed the Trial Count’s entry of judgment. The Superior Court concluded that Valentino executed a valid liability waiver under which he expressly assumed the risk of participating in the Triathlon. According to the Court, this confirmed that Philadelphia Triathlon owed no legal duty to Valentino and cannot be found to be negligent. As a result, Valentino’s waiver not only defeated the negligence claims asserted in the context of Plaintiff’s survival action, but also the negligence claims asserted in the context of Plaintiff’s wrongful death action.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.


Infinity Select Ins. Co. v. Fleming

Pennsylvania Superior Court

No. 2079 EDA 2015

Decided: October 18, 2016

Absent a waiver and as to innocent third parties, automobile insurer must provide indemnification for its insured, although the policy holder made a misrepresentation to the insurer.

Background

On July 16, 2003, Infinity Select Insurance Company issued an automobile insurance policy to Defendant, Ms. Terrie Fleming. The policy was effective from said date through January 16, 2014. Thereafter, on October 4, 2013, at 12:01 A.M., the Policy was cancelled by Infinity for non-payment of the premium. Later that day, at 11:00 P.M., Fleming operated her vehicle in a manner that caused it to collide with a pedestrian. Thereafter, on October 5, 2013, Fleming made the premium payment, which contained a certification that she had not been involved in a motor vehicle accident during the period in which the Policy lapsed.

Infinity commenced this action seeking a declaration that at the time of the accident, the Policy had lapsed due to non-payment. Accordingly, Infinity did not owe Fleming a duty to defend or indemnify her for the accident on October 5, 2013. Thereafter, Infinity filed a motion for summary judgment, which was granted in part and denied in part. The Trial Court opined Infinity did not have a duty to defend or indemnify Fleming, except as to potential claims of innocent third parties. Infinity appealed.

Holding

Generally, where a premium payment is received after the loss, the acceptance of the premium merely reinstates the policy as of the date of the receipt. However, Infinity accepted the premium payment and agreed to reinstate the Policy without lapse. By reinstating the Policy without lapse, Infinity expressly waived the default period. Even though the policy lapsed during the accident and Fleming did not pay the premium to reinstate the Policy until after the accident, Infinity expressly waived the default period, and Fleming was entitled to indemnification and defense. Absent a waiver of the period of default, the Policy would have recommenced after receipt of payment of the overdue premium. The Superior Court further held the certification of no motor vehicle accidents during the lapse in coverage did not preclude indemnity by Infinity to an innocent third party. In essence, Infinity was required to provide coverage to the innocent third party victim, even though Fleming fraudulently procured coverage.

Questions about this case can be directed to Shayne McGrady, at (570) 820-0240 ext. 8608 or smcgrady@tthlaw.com.


Finch v. American Premier Underwriters, Inc.

Pennsylvania Superior Court

No. 1416 EDA 2015

Decided: September 30, 2016

A Defendant must meet a “heavy burden” to transfer venue based on forum non conveniens. A showing of mere inconvenience to the Defendant is not enough.

Background

Plaintiff Finch filed a Complaint in the Court of Common Pleas of Philadelphia County pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §51, et seq., alleging that during the course of his employment with the Defendants, he was exposed to toxic substances that caused bladder cancer. The Defendants moved to transfer venue to the Court of Common Pleas of Blair County based on Pa.R.C.P. 1006(d)(1), forum non conveniens. The Trial Court granted the Motion, finding that trying the case in Philadelphia County posed unnecessary hardship and inconvenience on the Defendants due to costs associated with witness trial attendance and business disruptions, specifically because the Plaintiff’s exposure occurred in Blair County, his medical providers were located in Blair County, and his former supervisors and co-workers resided in Blair County.

Holding

On appeal, the Plaintiff argued that the Trial Court abused its discretion in transferring the case. The Superior Court agreed finding the Defendants had not met their “heavy burden” of establishing that Plaintiff’s choice of forum was vexatious or oppressive and more than merely an inconvenience. To the contrary, the evidence revealed that many former supervisors and co-workers were retired and some had moved to the Philadelphia area; therefore, their testimony would not present a business disruption as they no longer worked, they would not be required to travel extensively for the trial, and that most, if not all, of the Plaintiff’s treating physicians would be called via video testimony which would not pose any added burden on the Defendants. In sum, the Trial Court had abused its discretion in finding factors of mere inconvenience rose to the level of harassment or oppression. The case was remanded for further proceedings.

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


Vinciguerra v. Tunstall

Pennsylvania Superior Court

No. 403 WDA 2016

Decided: September 23, 2016

The Superior Court held that the trial court properly dismissed a Plaintiff’s action against a Defendant driver involved in a motor vehicle accident because the Defendant driver had died before the action was filed, the statute of limitations had expired, and there was no evidence to show any fraudulent concealment in order to toll the statute of limitations. The Court additionally found that the Plaintiff’s own lack of due diligence precluded applying the relation back doctrine.

Background

On October 15, 2010, a vehicle driven by Defendant struck Plaintiff’s automobile. Plaintiff, through counsel, entered into communications with Defendant’s insurer shortly thereafter. Plaintiff then filed a writ of summons three days prior to the expiration of the statute of limitations. Four days later, the Sheriff’s Office notified Plaintiff that it could not effect service because Defendant was deceased. Approximately three months later, Plaintiff filed a petition for citation to direct Defendant’s heir(s) to open an estate, appoint a personal representative and that the register of wills issue letters of administration. No further action was taken with respect to that petition. Defendant filed a Motion to Dismiss, arguing that the action was a legal nullity because Defendant had died before Plaintiff filed the action, and the statute of limitations had expired. The Trial Court granted the Motion to Dismiss. Plaintiff appealed, arguing, inter alia, that the Motion should not have been denied pursuant to the doctrine of equitable estoppel because Defendant’s insurer intentionally or unintentionally concealed Defendant’s death and that the doctrine of “relation back” should be applied to Plaintiff’s case.

Holding

The Superior Court affirmed. The Court noted that fraudulent concealment of the identity of the proper Defendant can toll the running of the statute of limitations. However, in this case, Plaintiff offered no evidence to support that the insurer committed some affirmative independent act of concealment upon which Plaintiff relied. The Court also found that the doctrine of “relation back” was inapplicable in this case due to Plaintiff’s failure to act with due diligence in pursuing the matter. Plaintiff waited three months before filing an action with the register of wills after learning of Defendant’s death, and never followed through with the action, as a personal representative was never appointed. Accordingly, the Superior Court affirmed the decision of the Trial Court and found that Plaintiff’s action was barred by the statute of limitations.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or jshields@tthlaw.com.

MARYLAND CASE SUMMARY

Kunca v. Morse

Maryland Court of Special Appeals

No. 1059

Decided: August 31, 2016

Maryland Rule 2-305, as of 2012, permits recovery of damages greater than a specific amount claimed so long as the amount claimed is greater than $75,000.

Background

Plaintiff Kunda entered into an agreement to transfer her business, the Hacks Point General Store, Inc. to William and Sharon Morse. Per the agreement, the Morses would purchase the store and 99 out of 100 shares of corporate stock for $846,950. The Morses were to obtain $622,000 and Ms. Kunda would provide the Morses a loan of $224,950 to be paid back over 240 months. Pending the full repayment of the debt, all shares were to be placed in a voting trust. Kunda was the trustee and, as such, could elect the Morses as directors. In the event of default, the shares would be voted as directed by Kunda. After the agreement was signed, the Morses could not obtain financing in time for settlement so an addendum was reached. It required the Morses to make two timely deposits of $100,000 and $174,950. The addendum also required the Morses to pay $4,500. monthly as lease payments to Kunda. The Morses made the first deposit, but paid only $100,000 of the $174,950 second deposit. Kunda allowed the Morses to pay $500-$700 monthly for additional two years until the remaining $75,000 was paid. Ultimately, the Morses defaulted on the remaining $74,950, by not paying it by its due date. However, the agreement provided for a grace period of thirty days within which the Morses could make their delinquent payment without default. Prior to the expiration of the thirty day period, Kunda voted the shares to re-establish herself as the sole board member and ousted the Morses as directors.

The Morses filed a complaint against Kunda in the Circuit Court for Cecil County and sought damages in the amount of $102,600. The Trial Court found that Kunda breached her contract with the Morses and awarded the Morses $200,000 in damages. The figure represented the Morses’ two deposits of $100,000. Kunda appealed to the Court of Special Appeals and presented two questions: 1) Did the Trial Court err when it determined that Kunda breached the contract, and 2) Did the Trial Court err in its calculation of economic damages.

Holding

On the first issue, the Court agreed with the Trial Court that Kunda breached the contract by ousting the Morses prior to the thirty day grace period. On the second issue, the Court held that the Trial Court acted properly in awarding the Morses $200,000 in economic damages even though their Complaint sought only $102,600. It explained that Maryland Rule 2-305, as of 2012, permitted recovery of damages where the amount claimed is greater than $75,000, regardless of the amount claimed is a specific amount.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

NEW JERSEY CASE SUMMARIES

Anderson v. Stop & Shop Supermarket

New Jersey Superior Court, Appellate Division

No. 31-2-1729

Decided: November 3, 2016

Court affirms summary judgment for defense when Plaintiff lacked the requisite facts to support constructive notice by way of the Mode-Of-Operations Doctrine.

Background

Plaintiff was shopping in the frozen food aisle of Defendant’s supermarket when she slipped and fell after stepping on an unknown substance. The Plaintiff had just taken sealed bags of frozen french fries from the freezer and put them in her shopping cart when she slipped on what she described as a whitish, slippery blob. Plaintiff suffered a severe fracture of her right hip, and thereafter filed a complaint against the Defendant seeking compensatory damages. Defendant moved for summary judgment at the completion of discovery, arguing that Plaintiff could not prove the Defendant had the necessary notice of the substance that caused the slip and fall. After the Judge granted the motion in favor of the Defendant, Plaintiff moved for reconsideration, which was also denied. This appeal followed.

To recover for injuries sustained, a plaintiff must establish the defendant’s duty of care, and that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. The mode-of-operation doctrine can establish constructive notice of the dangerous condition by showing a link between that hazard and the defendant’s method of conducting business. Here, the Plaintiff argued that the Defendant had constructive notice through the mode-of-operation doctrine as applied to supermarkets, which states that the mode of operations includes the characteristics of the goods themselves and the way in which they are packaged, and the customers’ necessary handling of goods during checkout. In it’s analysis, the Court looked to the precedence in Nisivoccia v. Glass Gardens, Inc. where there was a nexus between a hazardous grape on the floor and the store’s mode of operation that did not anticipate the careless handling of grapes during checkout, creating a hazardous condition.

Holding

The Court distinguished Nisivoccia from the present case, reasoning that items in the frozen food aisle would not reasonably generate a hazardous condition in the aisle, because they are not likely to leak out of a sealed container; and therefore, there is no nexus. Following this logic, the Court stated that the record lacks the essential facts needed to establish a nexus between the store’s mode of operation and the hazardous condition. The hazardous condition cannot be connected to the store’s mode of operation without a clear description of the substance and how it ended up in the aisle. The Court therefore affirmed the lower court in finding that the motion judge properly rejected the Plaintiff’s attempt to invoke the mode-of-operation doctrine, as well as the finding that the defendant did not have constructive notice of the condition.

Questions about this case can be directed to Alicia Emili, at (610) 332-7025 or aemili@tthlaw.com.


Ray v. Danielson

New Jersey Superior Court, Appellate Division

No. A-5621-14T1

Decided: November 1, 2016

Background

Plaintiff alleges that he sustained injuries to his cervical and lumbar spine as a result of a motor vehicle accident. Defendant maintained that Plaintiff’s injuries were degenerative and existed before the accident. Plaintiff had an MRI and EMG performed which documented disc herniations and radiculopathy. The reports of these examinations did not address whether any of Plaintiff’s injuries were caused by the accident. Plaintiff was then treated by a chiropractor who testified at a de bene esse deposition that Plaintiff’s neck and back injuries were caused by the accident.

Defendant filed a motion in limine to bar the testimony of Plaintiff’s chiropractor, radiologist and EMG Specialist because the MRI and EMG reports failed to address causation. The Trial Court granted Defendant’s motion and dismissed Plaintiff’s complaint. The trial judge concluded that the chiropractor was unable to independently establish that Plaintiff sustained a permanent injury that was caused by the accident.

Holding

This is a verbal threshold case. Plaintiff was obligated to produce testimony from a medical expert to prove "within a reasonable degree of medical probability" he sustained permanent injuries that were caused by the accident. On appeal, Plaintiff contended that the MRI and EMG showed that he sustained a permanent injury caused by the accident and that he overcame the verbal threshold.

The Appellate Division reversed and remanded. Here, the Court held that the opinions from Plaintiff’s radiologist and EMG specialist should have been limited to the contents of the MRI and EMG reports. In other words, they could testify to what the objective testing showed, but not as to whether the injuries were caused by the accident. The Court also held that the chiropractor could testify as to causation. The Court explained that this is not a situation where Plaintiff attempted to prove permanency and causation solely through his chiropractor's interpretation of the MRI films or EMG studies. Therefore, the Court concluded that Plaintiff overcame the verbal threshold because he was prepared to produce expert opinion testimony at trial, from a radiologist, an EMG specialist, and a chiropractor, regarding the issues of permanency and causation. Whether Plaintiff would have succeeded at that attempt is for the jury to decide.

Questions about this case can be directed to Robert Fodera, at (908) 574-0510 or rfodera@tthlaw.com.


Viruet v. Maoine

New Jersey Superior Court, Law Division

No. CUM-L-842-14
Decided: November 4, 2016

Cumberland County Court rules that Plaintiff ‘s medical expenses in excess of PIP coverage are fully boardable and not limited to New Jersey’s PIP fee schedule.

Background

In a recent unpublished decision, the Superior Court in Cumberland County handed down a Plaintiff-friendly decision on the often argued issue of the recoverability of medical expenses that exceed the Plaintiff’s PIP limits. In Viruet, the Plaintiff maintained a policy with minimum PIP limits of $15,000 when he was injured in the automobile accident that gave rise to the lawsuit. Ultimately, Plaintiff’s treatment resulted in medical expenses in excess of $50,000. Prior to trial, Defendant moved to subject the claimed medical expenses in excess of the PIP limits to New Jersey’s PIP fee schedule. Defendant also argued that the boardable medical expenses to be considered by the jury should be limited to the fee schedule amounts.

Holding

In considering the Defendant’s motion, the Court recognized that the Plaintiff had elected the lowest possible medical expense coverage limit on their policy, resulting in a lower policy premium. As to the expenses within the $15,000 limit, the Court cited to N.J.S.A. 39:6A-4.6(e) for the unquestioned proposition that these medical expenses were clearly subject to the Fee Schedule. The Court then framed the issue presented as, “whether the medical expenses beyond the $15,000 coverage limit are likewise subject to the Fee Schedule and only boardable to the extent of the fee schedule amounts.” The Court answered in the negative. The Court reasoned that neither the statute nor the applicable regulation expressly addressed the question and, therefore, the charges in excess of the limits would be payable by Plaintiff himself once billed. The Court ruled that the Plaintiff was not barred from recovering the full amount of the medical bills in excess of his PIP coverage and that such bills were not subject to the fee schedule. The Court concluded that “Plaintiff’s medical bills are fully boardable to the extent they were not paid under the PIP coverage…The jury will decide the fair and reasonable value of such medical expenses if plaintiff prevails as to liability and causality.”

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or dseger@tthlaw.com.

DC CASE SUMMARY

Motorola Inc. v. Murray

District of Columbia, Court of Appeals

No. CAB-8479-01

Decided: October 20, 2016

The Court of Appeals adopts the Daubert standard for determining the admissibility of expert testimony in the District of Columbia, abolishing the Frye standard.

Background

Plaintiffs sued numerous cell phone manufacturers, service providers and trade associations alleging that long-term exposure to cell-phone radiation causes brain tumors. The Trial Court held evidentiary hearings on the admissibility of expert testimony, and concluded that some of the Plaintiffs’ proffered expert testimony would be admissible under the Frye standard, but most of the Plaintiffs’ expert testimony would be inadmissible under the Daubert standard. An interlocutory appeal was granted.

Holding

Courts generally apply one of two standards to determine whether scientific expert testimony is admissible: the Frye standard or the Daubert standard. Under the Frye standard, scientific expert testimony is admissible if it is generally accepted in the relevant scientific community. Under the Daubert standard, scientific expert testimony is admissible if the expert testimony will assist the trier of fact, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case. Most states apply the Daubert standard. D.C. applied the Frye standard, until this case, where it explicitly adopted the Daubert standard, and remanded the appeal for further proceedings.

Questions about this case can be directed to Ben Peoples, at (202) 904-2362 or cpeoples@tthlaw.com.