General Liability eNotes

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TT&H eNotes: Liability: June 2017



We are proud to announce that a number of our attorneys received recognition in the most recent Super Lawyers issue.

Super Lawyers

James J. Dodd-o; Daniel L. Grill; Edward H. Jordan, Jr.; Louis C. Long; R. Burke McLemore, Jr.; Paul A. Pauciulo; Mark J. Powell; Peter J. Speaker; James F. Swartz, III

Super Lawyers "Rising Stars"

Katherine E. Bavoso; Joseph S. Cardile; Matthew Clayberger; Caroline Diehl; Bernard T. Kwitowski; Catherine A. McLaughlin; C. Ben Peoples



Supreme Court Rules Committee declares a mulligan in amending Pa.R.C.P. No. 1033.

A new amended rule on amendments, which went into effect on April 1, 2017, now allows for relief from a hazard once used to the advantage of defendants when the wrong party was named and served and the right party was later identified after the statute of limitations had already expired. Although Plaintiffs naming Defendants in civil actions (and Defendants naming Additional Defendants via Joinder Complaints and Cross-Claims) have always been required to investigate, name, and serve the right party to a lawsuit, a recent amendment to Pa.R.C.P. No. 1033 provides limited relief to parties who mistakenly name and serve the wrong party and only later learn of their mistake after the statute of limitations has expired.  Under long standing case law developed under the rule that existed before April 1, 2017, absent fraud or concealment, a party naming an incorrect Defendant/Additional Defendant was forever barred from bringing the right party into court after the running of the applicable statute of limitations, which in that circumstance, provided a complete defense to the right party regardless of the merits of the claim.  In many cases, the case was dismissed on a motion for summary judgment filed by the wrong party.  After that, the party who made the error was out of court and counsel who filed the action was subject to a claim of legal negligence by their client. 

The new amendment now provides:

(b)  An amendment correcting the name of a party against whom a claim has been asserted in the original pleading relates back to the date of the commencement of the action if, within ninety days after the period provided by law for commencing the action, the party received notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

The amendment allows the right party to be substituted for the wrong party as long as the right party had notice of the lawsuit involving the wrong party within 90 days after the period provided by law for commencing the action, the party received notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.  The change brings Pennsylvania law in line with recent court decisions, but does not fully adopt Rule 15(c) of the Federal Rules of Civil Procedure, which grants more liberal relief when there is no prejudice to the right party who should have been named, but was not named, without any specific time limit, and relates the substitution of the right party back to the time the original action was filed, regardless of the running of the statute of limitations.

According to the new amendment language, the courts will have to determine, on a case-by-case basis, whether the right party: (1) within ninety days after the period provided by law for commencing the action, received notice of the institution of the action; (2) will not be prejudiced in maintaining a defense on the merits; and (3) knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

Questions regarding this new amendment can be directed to Joe Holko, at (610) 332-7005 or


PENNSYLVANIA   |    MD    |    NEW JERSEY    |   D.C.    |   VA


Ridolfi v. State Farm Mut. Auto. Ins. Co.

United States District Court for the Middle District of Pennsylvania

No. 15-859 MDA 2017

Decided: April 10, 2017

Careful investigation of UIM claim, including obtaining complete medical records, taking an examination under oath, and waiting for the underlying case against the tortfeasor to resolve, does not constitute bad faith as a matter of law.


The Middle District for Pennsylvania recently granted summary judgment to a UIM insurer with respect to claims of bad faith arising out of various delays in the investigation of the claim. There, the Plaintiff was alleging that misstating its coverage limits, slow claims processing, insistence on a statement under oath, and failure to provide periodic status notices to the insured were all evidence in support of their bad faith claim. However, for each of these allegations, there was a reasonable explanation for the actions taken.

The misstatement of coverage limits was merely a mistake based on a typographical error, which had been quickly amended by the carrier once it was discovered. The slow claims processing was due in part to miscommunications with the Plaintiff’s attorney and delays in obtaining complete medical records. The insistence on a statement under oath was permitted under the insurance contract and useful in investigating the claim, even though the Plaintiff had been deposed in the case against the tortfeasor two years previously. The notices were admittedly not provided, but the Plaintiff’s attorney and the UIM carrier were nevertheless in frequent communications.


The Court first noted that as this issue was coming before it on a Motion for Summary Judgment, it was to view all facts in the light most favorable to the Plaintiff. However, explaining that it is “not bad faith for an insurance company to conduct a thorough investigation into a questionable claim,” the Court held that Plaintiff would be unable to sustain its burden at trial. It noted that “red flags” such as the Plaintiff’s policy limits demand against the UIM carrier and a settlement with the tortfeasor for less than his policy limits properly prompted a careful investigation. Awaiting that settlement with the tortfeasor was likewise warranted, as “the UIM claim is inextricably linked to the underlying negligence claim and the adequacy of insurance coverage on that claim.” In sum, the careful investigation of the claim, including awaiting complete medical records, taking Plaintiff’s statement under oath, and awaiting the settlement with the tortfeasor, could not form the basis for a claim of bad faith. Summary judgment was accordingly granted in favor of the insurer.

Questions about this case can be directed to Lindsey Cook, at (717) 237-7111 or

Lacava v. SEPTA

Pennsylvania Commonwealth Court

No. 96 CD 2016

Decided: March 29, 2017

The pothole exception will not pierce sovereign immunity unless the sovereignty has received actual written notice of the condition. Likewise, governmental immunity is not waived even where a local agency receives notice of a pothole, fails to forward the notice to the responsible sovereignty, and gratuitously undertakes negligent repairs of the condition.


The Plaintiff, Joseph Lacava, was operating a motor scooter near the intersection of 11th and Catrell Streets in Philadelphia on July 13, 2013. His scooter struck a discontinued and exposed trolley track. The Plaintiff initiated suit against the City of Philadelphia and SEPTA. The Plaintiff advanced theories of negligence and premises liability. Evidence during trial demonstrated that the City of Philadelphia owned the streets in which the trolley tacks were situated. Further, SEPTA was responsible for the maintenance of the trolley tracks, the roadway between the tracks, and the eighteen (18) inches of roadway on each side of the trolley tracks. Prior to Plaintiff’s incident, the City of Philadelphia had received a complaint regarding a defect within SEPTA’s scope of responsibility. Certain patchwork was performed to the pavement surrounding the subject trolley rails. Evidence suggested the City of Philadelphia did not notify SEPTA of the condition, and it opted to perform the patchwork.

After trial, the jury returned a verdict in an amount of $700,000. The jury attributed seventy percent liability to SEPTA and thirty percent to the City of Philadelphia. The City of Philadelphia and SEPTA proceeded to advance post-trial motions to appeal the verdict, citing immunity, among other reasons. The City of Philadelphia argued governmental immunity shielded it from suit, as Plaintiff failed to proffer sufficient evidence to fall within the streets exception. SEPTA argued sovereign immunity shielded it from suit, as Plaintiff failed to proffer sufficient evidence to overcome the real property and pothole exceptions. The Trial Court held that the City of Philadelphia was estopped from asserting an immunity defense because it voluntarily undertook repairs of an area outside its scope of responsibility. Further, the Trial Court found SEPTA was not entitled to immunity because the defect existed within the reality to which SEPTA was responsible.


In reviewing the Trial Court’s holdings, the Commonwealth Court first addressed the governmental immunity of the City of Philadelphia. The City remains immune to suit unless a street owned by it contains a dangerous condition; the City had actual or constructive notice of the dangerous condition; and the City had reasonable time prior to the incident to remedy the dangerous condition. In reversing the Trial Court, the Commonwealth Court found the City of Philadelphia did not own the area of the street in which Plaintiff suffered injury. Therefore, the streets exception did not apply. The City of Philadelphia did not waive the defense of governmental immunity by failing to notify SEPTA of the dangerous condition. Further, governmental agencies cannot act gratuitously. Thus, the City did not waive its defense of governmental immunity by making certain repairs to the area subject to Plaintiff’s claims.

The Commonwealth Court next addressed the exceptions to the sovereign immunity defense of SEPTA. The first exception is referred to as the “real estate” exception. In order for the real estate exception to apply, the subject area must contain a dangerous condition and be owned or leased by SEPTA. Here, the real estate exception did not apply because there was no defect in the trolley rail owned by SEPTA. Rather, the dangerous condition lied in the surrounding pavement, which is specifically covered by the pothole exception, not the real property exception. The Commonwealth then proceeded to address the pothole exception. The pothole exception applied if SEPTA received actual written notice of a dangerous condition created by a pothole, sinkhole, or other similar condition. Here, there was no evidence to suggest SEPTA received written notice of the subject condition. Although the City of Philadelphia received written notice, the notice was never forwarded to the attention of SEPTA. Accordingly, the pothole exception did not apply, and SEPTA was immune to Plaintiff’s claims.

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

Am. Honda Motor Co. v. Martinez

Pennsylvania Superior Court

No. 445 EDA 2015

Decided: April 19, 2017

Pennsylvania Superior Court addresses post-Tincher product liability issues while upholding $55 million verdict against Honda.


Plaintiff sued American Honda after becoming paralyzed from a vehicle roll-over accident. Plaintiff was awarded $55 million by the jury. After the jury’s verdict, the Pennsylvania Supreme Court decided Tincher v. Omega Flex which, among other matters, ruled that it is for the jury, and not the court, to decide the threshold question of whether or not a product is “unreasonably dangerous.”

After its post-trial motions were denied, Honda appealed to the Superior Court arguing, in part, that because Tincher’s holding was retroactive, the pre-Tincher instructions given to the jury were in error, thus justifying a new trial.


On appeal, the Superior Court affirmed the Trial Court’s refusal to grant a new trial. In doing so, the Superior Court made the following, significant rulings:

  • The jury did not need to explicitly find that the product was “unreasonably dangerous;” rather, same could be determined implicitly through the jury’s finding that the seriousness of the harm caused by the product outweighed the burden or costs of taking precautions.
  • Although Tincher overruled the prior Pennsylvania Supreme Court case of Azzarello v. Black Bros., this did not require the Trial Court to remove from the jury charge Azzarello’s language about the manufacturer being the “guarantor” of the product’s safety.
  • Tincher did not affect prior precedent which prohibited defendants from introducing evidence of their compliance with federal regulatory and industry standards.

Although Martinez is not a favorable decision for product liability defendants, it is an unpublished and hence non-precedential opinion.

Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or

Johnson v. Austin

Pennsylvania Superior Court

No. 1122 EDA 2016

Decided: April 19, 2017

Court affirms Defendant’s Motion for Judgment on the Pleadings on the basis that Defendant was not timely served with the complaint and Plaintiff failed to show a good faith effort in effectuating service.


On June 11, 2015, Terrance Johnson instituted a negligence action averring that Anthony Austin was negligent in causing a motor vehicle accident on July 17, 2013. The statute of limitations expired on July 17, 2015. Johnson made his first attempt at service on June 13, 2015 at Austin’s last known address on Zeralda Street to no avail. On July 9, 2015, Johnson hired an investigator, CIS, to locate Austin. On October 29, 2015, CIS informed Johnson of its failed efforts to locate Austin. On November 2, 2015, Johnson requested Austin’s address from the PA Department of Transportation. On November 5, 2015, CIS indicated that Austin did in fact reside on Zeralda Street. Johnson subsequently filed a Motion for Alternative Service which was granted. Johnson then filed an affidavit of service averring that Austin had been served by posting the Complaint at Austin’s home and by first class mail on December 9, 2015.
Austin ultimately filed a Motion for Judgment on the Pleadings arguing that he was not timely served with the complaint and that Johnson had not made a good faith effort at service. The Trial Court granted the Motion and entered judgment in favor of Austin. Johnson appealed arguing that he made a good faith effort to locate Austin and at no time acted to stall the judicial process.


The Court held that Johnson did not pursue service upon Austin in good faith as required under Pennsylvania law. There was no evidence in the record that Austin had actual notice of the commencement of the case prior to the December 15, 2016 service of the Complaint. The Court also found that Johnson did not conduct a good faith effort to serve Austin within the appropriate time period in that Johnson did not even contact CIS for a status update as to Austin’s whereabouts until October 2015, well after the statue of limitations had run. The Court noted that even after CIS informed Johnson of the proper address of Austin in November 2015, it was not until December that Johnson filed a Motion for Alternative Service. Service was not effectuated until December 16, 2015, nearly five months after the statute had run. The Court thus concluded that the Trial Court did not abuse its discretion in granting Austin’s Motion.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or

Coulter v. Lindsay

Pennsylvania Superior Court

No. 627 WDA 2016

Decided: April 7, 2017

Superior Court ruled that Pennsylvania Rule of Civil Procedure 233.1 (frivolous actions filed by pro se plaintiffs) is not void for vagueness under the federal and state constitutions and that the Pennsylvania Supreme Court had the authority under the Pennsylvania Constitution to promulgate Rule 233.1.


In 2007, Plaintiff pled nolo contendre to aggravated assault for the brutal abuse of her minor daughter. Plaintiff’s parental rights were subsequently terminated by the Butler County Court of Common Pleas. During both proceedings, Plaintiff was represented by Defendants. Over the ensuing decade, Plaintiff has filed at least 91 actions in at the appellate level and federal court. The Superior Court noted that it was impractical to calculate the exact number of cases Plaintiff initiated over that same time period. Here, Plaintiff filed an action on March 2, 2015 in the US District Court for the Western District of Pennsylvania. In that Complaint, Plaintiff alleged Defendants conspired with one another to deny her due process in the court proceedings references above. That complaint was dismissed with prejudice and will be referred to as Lindsay. On May 4, 2015, Plaintiff instituted this action. Plaintiff conceded in her Complaint that she was raising the exact claims that she raised in Lindsay. Defendants raised preliminary objections and the Complaint was ultimately dismissed pursuant to Pennsylvania Rule of Civil Procedure 233.1, which pertains to frivolous actions filed by pro se plaintiffs. Plaintiff appealed that decision on a number of grounds, including: her claim should not have been dismissed pursuant to Rule 233.1; the Supreme Court lacked authority to promulgate Rule 233.1; and Rule 233.1 is void for vagueness under the United States and Pennsylvania constitutions.


The Superior Court first found that Plaintiff’s Complaint was properly dismissed pursuant to Rule 233.1, as Plaintiff’s Complaint alleged the same or related claims which Plaintiff had raised in a prior action against the same Defendants and the claims had already been resolved. The Court also found that the Supreme Court had the authority to promulgate Rule 233.1, as it has the power to promulgate rules governing practice, procedure and the conduct of all courts. The Court also found that Rule 233.1 was not void for vagueness, as it did not violate the due process clauses of the United States and Pennsylvania constitutions. The Court held that Rule 233.1 is not vague, and in fact provides very specific guidelines for when a Trial Court may dismiss a pro se complaint.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or


Heneberry v. Pharoan

Maryland Court of Special Appeals

No. 2440, September Term, 2015

Decided: April 27, 2017

To establish a breach of contract claim for a physician’s medical malpractice, Plaintiff “must show that the physician made an additional promise separate and apart from the physician’s agreement to properly perform [a] procedure.”


On or around October 15, 2011, Valerie “(Henberry”) presented to Greater Baltimore Medical Center with abdominal pain. Dr. Bashar Pharoan (“Dr. Pharoan”) diagnosed her with acute appendicitis and recommended a laparoscopic appendectomy, a procedure to remove the appendix. Dr. Pharoan performed the surgery, but left the “stump” of the appendix in place. Thereafter, Heneberry continued to experience severe pain and was forced to undergo an additional surgical procedure to remove the “stump.”

On September 11, 2014, Henberry filed a complaint in the Circuit Court for Baltimore County against Pharoan for: (1) negligence, (2) loss of consortium, and (3) breach of contract. Dr. Pharoan filed a motion to dismiss the breach of contract count for failure to state a claim. The Circuit Court granted the motion and dismissed Henberry’s breach of contract count. Henberry’s suit went to a jury based only on the negligence and loss of consortium counts. The jury found in favor of Dr. Pharoan on the negligence claim. Heneberry appealed to the Court of Special Appeals raising the issue whether she was permitted, as a matter of law, to bring a claim against Dr. Pharoan for breach of contract. Heneberry argued that Dr. Pharoan was liable for breach of contract because he had a contractual obligation to remove the entire appendix. Dr. Pharoan argued that by agreeing to perform an appendectomy, he agreed to exercise reasonable care and medical skill but he did not enter into a contract to remove an appendix.


The Court of Special Appeals affirmed the Circuit Court’s decision to dismiss the breach of contract count. It explained that Maryland courts recognize that a doctor-patient relationship is contractual in nature in that “a doctor impliedly agrees to exercise a reasonable degree of care and medical skill,” but “the failure to exercise that care is tortious and not governed by contract law.” To be governed by contract law, the Plaintiff “must show that the physician made an additional promise separate and apart from the physician’s agreement to properly perform the procedure.” The court made no such finding.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or

Deciutiis v. Six Flags America, LP

Maryland Court of Special Appeals

No. 305, September Term, 2016

Decided: April 17, 2017

Court refuses to apply res ipsa loquitur when Plaintiff never attempted to determine if actions by others may have contributed to injury or if there was direct evidence of negligence. Plaintiffs must present expert testimony to establish negligence and causation when an injury involves complex mechanical devices. The statute of limitations ran because Plaintiff failed to name or give notice to the proper defendant during the limitations period.


On July 11, 2011, Roxanne Deciutiis and her minor daughter visited Six Flags amusement park in Mitchellville, Maryland. They participated in a water rafting ride called “Penguin’s Blizzard River.” The raft in front of them became stuck for an unknown reason and collided with Ms. Deciutiis’ raft causing injuries to Plaintiffs.

Ms. Deciutiis originally filed suit against an improper defendant shortly before the running of the statute of limitations. She subsequently amended the complaint substituting the park operator, Six Flags America, LP. During discovery, Plaintiff never attempted to gather direct evidence of Six Flags’ negligence. At trial, the court granted Six Flags’ oral motion for judgment because Plaintiff did not designate an expert to explain the cause of the injuries. Plaintiff alleged she could prove negligence under the doctrine of res ipsa loquitur. The Trial Court ruled that Six Flags did not have control over all aspects of the ride, therefore res ipsa loquitur could not apply. Plaintiff appealed.


The Court of Special Appeals concluded that because the actions of others, like the people in the other raft, may have contributed to her injuries, Plaintiff could not prove that Six Flags exercised exclusive control over the ride. Further, because the ride itself involved complex mechanical devices about which the jurors would not have background knowledge, expert testimony is required to establish negligence and causation. The Court also found that Plaintiff never attempted to find direct evidence of Six Flags’ negligence. For these reasons, Plaintiff could not resort to res ipsa loquitur. Finally, the Court ruled that because Plaintiff did not name the correct defendant until after the statute of limitations had run and that defendant had no notice of the suit during the limitations period, Ms. Deciutiis’ claims were barred by the statute of limitations. The statute of limitations against her minor daughter begins to run on the daughter’s 18th birthday.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or


Crowley v. Six Flags Great Adventure

United States District Court for the District of New Jersey

2017 WL 1836155

Decided: May 8, 2017

Expert testimony will be admissible if it meets the “trilogy of restrictions” known as qualifications, reliability and fit.


Plaintiff Jonathon Crowley alleged to have suffered an injury involving the American Hi-Striker game at Six Flags, a game in which guests tested their strength by swinging a rubber mallet to hit a strike pad, causing a LED tower to light up and ring a bell for prizes. While playing the game, Plaintiff injured himself when the rubber mallet bounced off the strike pad and hit him in the face. In his complaint, Plaintiff contended Defendant negligently and defectively manufactured and otherwise placed in the stream of commerce the game causing it to be in a dangerous and unsafe condition and contended failure to warn. Defendant moved to strike Plaintiff's expert witness arguing that the expert’s report and accompanying affidavit “provided little more than a recital of his personal opinions, unsupported by reasoning or reliable methodology.” In support of their motion, Defendant stated Plaintiffs’ expert, who did not inspect the subject game, made no calculations of the forces involved and took no account of the effects of gravity, friction, the energy-absorbing characteristics of the spring, the striker pad, the rubber mallet head or even an allegedly non-functioning shock absorber.


The District Court denied Defendant’s motion holding that Plaintiff’s expert met the “trilogy of restrictions on expert testimony” consisting of qualifications, reliability and fit. The Court explained that these factors, when evaluated, comprise and consider the Daubert factors. In its opinion, the District Court defined each of the afore-mentioned factors. The “qualification” requirement is liberally interpreted to include a broad range of knowledge, skills and training. “Reliability” of a proposed expert’s testimony is a determination of the methods and procedures of science an expert’s opinion was based upon as oppose to subjective belief or unsupported speculation. To be considered “fit”, the expert testimony must be relevant for the purpose of the case and must assist the trier of fact, i.e., “the scientific knowledge must be connected to the question at issue.”

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or

Holmes v. Jersey City Police Dep’t

New Jersey Superior Court, Appellate Division

No. A-1634-15T3

Decided: April 27, 2017

Appellate Division reinstates transgender Plaintiff’s claims against police department.


Plaintiff Shakeem Malik Holmes appealed an order from the Trial Court granting summary judgment, dismissing his complaint of public accommodation discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff alleged that, after arresting him for shoplifting and transporting him to the police station, several police officers subjected him to hostile treatment because of his transgender status.

Plaintiff did not challenge his classification as a female for security purposes or his assignment to a female-only jail cell. On this appeal, Plaintiff solely pursued a "hostile environment" claim based on his assertion that police officers made demeaning, insulting and threatening comments about his transgender status. The trial judge concluded that rude and insensitive comments “[did] not rise to the level of severe or [pervasive] LAD violations.”


The Appellate Division reversed the order of the Trial Court. In this case, the Court determined that the inquiry is whether Plaintiff's allegations, if true, could support a hostile environment claim under the LAD. The Court held that they could. In reaching this conclusion, the Court considered that Plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; that the individuals making the hostile comments were police officers, who wield tremendous power over arrestees; and that the comments included a physical threat. Under all the circumstances, a jury could find that the conduct was sufficiently severe that a reasonable transgender person in Plaintiff's position would find the environment to be hostile, threatening and demeaning. The Court further held that motion judge's reliance on the Heitzman case, was misplaced, as it involved a higher proof standard to LAD cases that involved religious, as opposed to racial, harassment, and was later overturned by the New Jersey Supreme Court. The Court determined that since the motion judge applied that higher standard to transgender harassment, the Plaintiff is entitled to present his claim to a jury.

Questions about this case can be directed to Robert Fodera, at (908) 574-0510 or

Rodriguez v. Wal-Mart

New Jersey Superior Court, Appellate Division

No. A-4137-14T3

Decided: April 27, 2017

In case of first impression, Appellate Division bars symptom magnification testimony by defense neurologist.


Plaintiff Alexandra Rodriguez alleged that a display rack in Defendant Wal-Mart’s store suddenly fell on her and caused injury. At trial, during which Wal-Mart contested both liability and damages, Plaintiff supported her case with testimony from medical experts, including a practitioner with expertise in Complex Regional Pain Syndrome (CRPS). Testimony was presented that Plaintiff would suffer permanently from CRPS. Wal-Mart also presented medical experts, including a neurologist who examined Plaintiff in connection with the case. Wal-Mart’s neurologist was permitted to testify that, in his opinion, the Plaintiff was magnifying her symptoms. The jury returned a no cause verdict and the issue of damages was not addressed.

Plaintiff cited several issues of error on appeal, however the portion of the Appellate Division’s opinion chosen for publication solely addressed whether the Trial Court erred in admitting Wal-Mart’s neurologist's testimony on symptom magnification. The Court noted that this was an issue of first impression in New Jersey.


The Court stated that symptom magnification was equivalent in meaning to malingering and then looked to a medical text, The Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, for a definition of the term. The Court then concluded that, “The connotations of that term readily can conjure up negative concepts of a person's intentionally wrongful conduct, deceit, greed, evasion of duty, or criminality. To brand a person a “malingerer” is essentially to declare him or her a faker, a liar, a slacker, or a sloth.” The Court reasoned that to permit such testimony by the defense neurologist would be inconsistent with the long-held principle that, “it is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness.” The Court cautioned that it was not establishing a rule with respect to whether the concept of malingering is per se unreliable. Instead, the Court emphasized that its concern was, “...on the capacity of such expert testimony to usurp or unduly influence, as a practical matter, a jury's paramount role in evaluating a plaintiff's credibility.” On this basis the Court held that such testimony at a civil jury trial should be categorically disallowed under New Jersey Rule of Evidence 403.8. A caveat to this broad holding is that the Court would still permit an expert’s testimony that a plaintiff’s subjective complaints appeared inconsistent with objective medical testing so long as a “pejorative classification labels such as malingering or symptom magnification” were not used. The matter was reversed and remanded for a new trial.

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or


Whitt v. Am. Prop. Constr., P.C.

District of Columbia Court of Appeals

No. 15-CV-1199

Decided: April 4, 2017

Holding that contractors were not liable for intentional infliction of emotional distress when they placed a port-a-potty near the Plaintiff’s commercial establishment, and blocked access to the Plaintiff’s commercial establishment with a boom.


Two contractors excavated an alley next to the Plaintiff’s hair salon. While doing so, they placed next to the Plaintiff’s entrance a port-a-potty that smelled like “raw sewage” and was leaking “blue-colored liquid.” The Plaintiff claimed that the port-a-potty was moved “a little closer” to her door after she complained. The contractors also used a crane to completely block the Plaintiff’s entrance at times, making travel to the salon difficult. A jury found that this conduct did not constitute intentional infliction of emotional distress.


The appellate court affirmed, explaining that this conduct did not rise to the high level of extreme and outrageous conduct required under D.C. case law to establish a claim of intentional infliction of emotional distress.

Questions about this case can be directed to Ben Peoples, at (202) 907-6046 or


Toraish v. Lee

Virginia Supreme Court

797 S.E.2d 760

Decided: April 13, 2017

Court holds doctor’s differential diagnosis was improperly admitted into evidence.


Defendant Lee is a board-certified otolaryngologist who performed a tonsillectomy and adenoidectomy on Plaintiff’s decedent, a five-year-old boy with severe obstructive sleep apnea. Although surgery was performed without complications, Plaintiff’s decedent died a short time after being discharged. Plaintiff filed a medical malpractice suit against Defendant and his practice. At trial, Defendant offered the testimony of Dr. Simeon Boyd, a board certified pediatric geneticist. Dr. Boyd testified that Plaintiff’s decedent died of cardiac arrest due to Brugada syndrome, an opinion he formed based on a differential diagnosis, or a diagnosis of exclusion. Dr. Boyd testified that in order to provide his differential diagnosis, he had either excluded all likely causes of death himself or relied on the expertise of others who were qualified to exclude them.

Plaintiff objected to Dr. Boyd’s testimony, although not his qualifications, arguing that Dr. Boyd’s differential diagnosis was not based upon adequate foundation. The jury returned a verdict in favor of Defendants and Plaintiff appealed. Whether to admit the testimony of an expert is within the sound discretion of a Trial Court and that decision will only be reversed if the Trial Court abused its discretion. Further, while an expert may rely on facts or circumstances made known to him, expert testimony cannot be based upon a mere assumption which has no evidentiary support. Here, respiratory compromise was not excluded as a possible cause of death by Dr. Boyd or any other source upon which he relied. Therefore, Dr. Boyd’s differential diagnosis was founded upon an assumption not established during trial.


The Trial Court abused its discretion by admitting Dr. Boyd’s differential diagnosis into evidence. However, the Court made clear that admitting a differential diagnosis is not always error; rather, because in the instant case no one ever ruled out respiratory compromise as a cause of death, the differential diagnosis was based on an assumption with no basis in fact.

Questions about this case can be directed to Lacey Conn, at (202) 558-5158 or