General Liability eNotes

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TT&H eNotes: Liability: July 2017


Lacey U. Conn, Esquire is now licensed to practice law in the State of Maryland.  Lacey is a partner in the Washington, DC office of Thomas, Thomas & Hafer, LLP, where she represents insurers and insureds in general liability cases. Lacey also is licensed to practice law in the Commonwealth of Virginia.

Lacey can be contacted at (202) 558-5158 or


Thomas McGinnis wins defense verdict in Allegheny County nursing home negligence case.

Tom McGinnis, with assistance of fellow TT&H attorneys Thomas E. Zumpella and Karin M. Romano, won a defense verdict in a nursing home negligence case in the Allegheny County Court of Common Pleas.  Plaintiff alleged wrongful death and survival claims due to a resident-patient’s death after the administration of a breathing treatment. Plaintiff claimed the resident-patient was improperly left alone during the breathing treatment, vomited into the mask, and aspirated it causing death.  At trial, nursing home personnel testified that the resident did not vomit into the mask, and the resident died after the breathing treatment was successfully completed.  The jury returned a verdict in favor of the nursing home, finding no negligence on the part of the facility.   

Tom McGinnis is one of the firm’s Managing Partners and practices from the firm’s Pittsburgh office.  Questions regarding this case can be directed to Tom, at (412) 926-1420 or



Sayles v. Allstate Ins. Co.

United States District Court for the Middle District of Pennsylvania

3:16-CV-01534, 2017 WL 1928408

Dated: May 10, 2017

Judge Caputo of the Middle District holds that a carrier seeking a PIP IME without first obtaining a court order that “good cause” exists is not subject to statutory bad faith. However, the Court predicts that the Pennsylvania Supreme Court will not enforce a policy’s IME requirement without the carrier first establishing “good cause”.

Most auto policies include a provision substantially similar to the following: “[T]he injured person may be required to take physical examinations by physicians selected by us, as often as we reasonably require . . . .” While the MVFRL, 75 Pa.C.S. §1796(a), provides, in pertinent part, that a court “may order the person to submit to a mental or physical examination by a physician[,] [t]he order may only be made upon motion for good cause shown.” 75 Pa.C.S. § 1796(a).
A recent opinion in Sayles v. Allstate Ins. Co., No. 3:16-cv-01534 (M.D. Pa. May 10, 2017) (Caputo, J.), analyzes the effect of the policy versus the statutory language. The dispute in Sayles stems from a carrier’s refusal to pay PIP benefits arising out of an automobile accident. After receiving the PIP claim, Allstate requested that Plaintiff undergo an IME, which Plaintiff refused. Allstate made the IME request via letter to Ms. Sayles and cited the pertinent policy provision. At no point did Allstate petition a court to compel the IME. Allstate simply declined to pay Sayles's medical benefits until the IME was performed.
Ms. Sayles filed suit, alleging, inter alia, statutory bad faith and violations of the UTPCPL. Sayles contended that because Allstate did not first petition a court to compel her to submit to a physical examination, and consequently there was no court finding of “good cause”, Allstate’s request for an IME violated 75 Pa.C.S. 1796 and was in bad faith. After an analysis of Pennsylvania and federal case law, Judge Caputo dismissed Sayles’s claims for bad faith and for violations of the UTPCPL.
Judge Caputo reflected on the conflicts in the case law in the 3rd Circuit on this issue. And, he noted that the Pennsylvania Supreme Court has not ruled on the issue of whether insurers may include mandatory IME provisions in their policies without violating the MVFRL. Given the state of the law, Judge Caputo held that Allstate was reasonable and not acting in bad faith by seeking to enforce this provision in their policy. However, Judge Caputo predicted that, if faced with the issue, the Pennsylvania Supreme Court would find that the MVFRL's provision prevails over the conflicting insurance policy provision pertaining to IMEs.

Questions about this case can be directed to Jason Giurintano, at (717) 237-7157 or



Rarick v. Federated Serv. Ins. Co.

United States Court of Appeals for the Third Circuit

852 F.3d 223

Decided: March 28, 2017

The Third Circuit places limits on a District Court’s ability to decline to hear declaratory judgment actions.


According to the United States Supreme Court, federal courts have a “virtually unflagging obligation” to exercise jurisdiction over cases seeking legal relief. However, it has also held that federal courts have broad discretion to decline to hear actions arising under the Declaratory Judgment Act. The Act provides a vehicle by which a plaintiff can ask the courts to decide plaintiff’s rights under, among other things, a contract. A conflict between these two principles often arises in insurance coverage litigation when an insured asks for both a judicial determination that the claim is covered under the terms of an insurance policy and also alleges that the insured is entitled to monetary damages because the insurance company engaged in a breach of contract when it denied the claim.

In Rarick, two parties brought suit against Federated Service Insurance Company after it denied their requests for underinsured motorist benefits. Plaintiffs requested a determination that they were entitled to coverage under the respective automobile insurance policies and also sought damages due to the insurer’s alleged breach of contract. Although initiated in state court, the insurance company removed the matters to federal court. The district courts in both cases held that the Plaintiffs’ claims were declaratory in nature because they were primarily seeking a determination that they were entitled to underinsured motorist benefits. The Courts then exercised their discretion to refuse to consider the cases.


The Third Circuit held that the district courts had used the wrong test to determine whether they had the ability to refuse to decide the cases. According to the Third Circuit, courts are to look at whether the legal claim (in these cases, the breach of contract causes of action) was independent of the request for declaratory relief. If so, with rare exceptions, the district court must hear the matter. The Third Circuit concluded that because Plaintiffs could have obtained the result they were seeking without asking the court to declare that they were entitled to coverage under the insurance policies, the breach of contract claim was independent of the request for a declaratory judgment. As a result, the district court was required to hear the cases, unless certain extraordinary circumstances existed.

Questions about this case can be directed to Jeanette Ho, at (412) 926-1449 or

Mallory v. S & S Publishers

United States District Court for the Eastern District of Pennsylvania

No. 14-5702

Decided: May 9, 2017

Norman Mailer’s former paramour loses defamation case alleging that portions of a biography published after Mailer’s death falsely characterized their eight-year relationship.


Supermodel, writer and journalist Plaintiff Carol Mallory had an eight-year affair with Norman Mailer, an American novelist, journalist, playwright, film-maker, actor, political activist and man about town. Although Mallory wrote her memoir in 2009 entitled “Loving Mailer,” which discusses the affair, a biography published six years after Mailer’s death portrayed the affair with Mallory as nothing more than her quest for sex, money, and publicity. Mallory claimed that the characterization of the affair was false and that the author of the book never contacted her to check whether the characterizations were true or not. According to District Judge Slomsky: “[S]pecifically, Mallory objects to the [author’s] portrayal of her as a “venal harlot” who seduced celebrities to advance her career and who was only interested in Mailer for his wealth and professional assistance.”


After summarizing Pennsylvania and United States Supreme Court authority on defamation, and the First Amendment requirement that Mallory, as a “limited purpose public figure,” prove that (1) the statements were false and (2) that it was made with “actual malice,” summary judgment was granted for Defendants.
Mallory’s own words in her book “Loving Mailer” detailed how she “picked up Bobby DeNiro, Sean Connery, Richard Gere, Peter Sellers, Matt Dillon, Marcello Mastroiani, Warren Beatty, Rod Stewart, Clint Eastwood and Rip Torn.” As a result, the statement in Mailer’s biography that added Anthony Hopkins to the list, but left out Messrs. Mastroiani, Stewart and Torn, did “not imply something” nor would “the average reader . . . believe that Mallory was a prostitute, as she contends.” Additionally, since Mallory did not dispute that a character in Mailer’s book “Harlot’s Ghost” was based on her, nor could she prove that the statements in the book about Mailer’s wife not liking the book once Mailer’s wife found out that “Mallory was the model for the sluttish Maine waitress, Chloe,” those references were not defamatory. Moreover, the biography does not refer to Mallory as a “venal harlot.” According to the opinion, even if it did, “a certain amount of vulgar name-calling is tolerated.” Lastly, Mallory presented no specific facts of record that supported her claims of actual malice. Mallory’s argument that she was waiting for trial to cross-examine the author of the biography to establish actual malice by clear and convincing evidence was also insufficient to save her claims of defamation per se and false light.

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


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Stuski v. Phila. Auth.

Pennsylvania Commonwealth Court

No. 1979 CD 2016

Decided: May 25, 2017

The landlord is generally responsible for removal of snow and/or ice from a property leased to multiple tenants, unless the terms of the lease expressly assign the duty to a tenant.


Plaintiff Stuski was employed by the City of Philadelphia Police Department Traffic Division. The Traffic Division maintained an office on the second floor of Building 501, 4500 South Broad Street. Plaintiff arrived for work and parked his automobile in the parking lot for the office. As Plaintiff exited his vehicle, slipped and fell on snow and/or ice and claimed injuries from the fall. Plaintiff filed suit against the Defendants, Philadelphia Authority for Industrial Development (as owner of the Property); CBRE, Inc. (as property manager); and CB Richard Ellis, Inc. (as snow and ice removal servicer).

Discovery revealed that the City of Philadelphia was responsible for removal of snow and/or ice from the property. The relevant lease agreement clearly demonstrated that the City was responsible for all snow plowing and removal within the parking areas. Further, during lease negotiations, counsel for the City expressly stated that the City intended to perform its own snow removal. The Trial Court granted summary judgment for the Defendants holding that the City was responsible for snow and/or ice removal.


The Commonwealth Court upheld the Trial Court. Generally, the landlord is responsible for removal of snow from common areas, such as parking lots, in the absence of a contrary provision in the lease. The record demonstrated that the lease expressly delegated the snow removal to the City. Further, the subsequent conduct of the City reinforced the terms of the lease, as it routinely cleared the parking lot of snow and/or ice. Accordingly, the City, not the Defendants, had control over the parking lot, and was responsible for maintaining it.

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

Alderwoods (Pennsylvania), Inc. v. Pa. Pub. Util. Comm’n

Pennsylvania Commonwealth Court

693 M.D. 2016

Decided: May 10, 2017

The Commonwealth Court lacked jurisdiction to adjudicate a claim when the claim was being litigated before a state agency and the agency had not reached a decision on the merits.


Plaintiffs filed suit against an electrical company seeking damages for an electrical fire that caused significant damage to Plaintiffs’ building. Plaintiffs alleged that the fire was caused by a power surge and that the electrical company was negligent in restoring power to the adjoining service line without first warning that the service line would be reenergized. Given that the determination of the utility’s liability required specialized expertise, the Trial Court transferred the matter to the Pennsylvania Public Utility Commission, pursuant to the primary jurisdiction doctrine. This doctrine permits a trial court to transfer a liability determination to a state agency when its expertise is required, and then adjudicate only the issue of damages.

Once the matter was transferred to the Public Utility Commission, Plaintiffs filed preliminary objections and argued that the Commission had no jurisdiction to decide the question of the utility provider’s liability. The Commission rejected Plaintiffs’ position and overruled the preliminary objections, refusing also to certify the question for interlocutory appeal. Thereafter, Plaintiffs filed a petition for review in the Commonwealth Court’s original jurisdiction, requesting that it declare the Commission without jurisdiction over the question of the utility provider’s liability.


The Commonwealth Court dismissed the petition for review based on lack of jurisdiction. Since the action was instituted by filing a complaint in the Trial Court, the Commonwealth Court did not have original jurisdiction over the matter that would allow it to adjudicate the petition for review. Instead, the Court explained that the proper procedure would be for the Commission to adjudicate the question of liability and reach a final order based on the merits. At that point, Plaintiffs could challenge the Commission’s jurisdiction before the Commonwealth Court in its appellate jurisdiction. Ultimately, Plaintiffs needed to develop a record on the merits and exhaust administrative remedies before the Commonwealth Court could assume jurisdiction over the action.

Questions about this case can be directed to Matthew Clayberger, at (717) 237-7150 or

Galeano v. Susq. Health Sys.

Pennsylvania Superior Court

No. 1182 MDA 2016

Decided: May 17, 2017

A three-judge panel of the Pa. Superior Court reversed the grant of summary judgment in favor of Defendant Hospital as the Trial Court erred by classifying the claim as professional negligence rather than a “garden variety” premises liability action.


Plaintiff slipped and fell on an automated door-mat while leaving the physical therapy department of the Defendant Hospital and thereafter filed a negligence claim alleging premises liability. Plaintiff had a significant medical history and as recently as three months before the fall had undergone an amputation of his great right toe. Prior to leaving the department, Plaintiff acknowledged that he was tired after his examination but declined the offer of a wheelchair to assist him to his car. As a result of the fall, Plaintiff sustained various injuries including, most notably, a fractured left ankle. Defendant Hospital filed a motion for summary judgment arguing that the claim was akin to a professional negligence action – thereby requiring medical expert testimony to support the claim. The Trial Court ruled that the claim sounded in professional negligence; that Plaintiff’s engineering expert was not qualified to offer opinions relating to medical judgment or causation; and that Plaintiffs could not prove their case without a medical expert.


The Superior Court reversed the Trial Court Order reasoning that Plaintiffs’ action was simply a “garden variety” negligence claim asserting an action for premises liability against Defendant Hospital relating to an automated door-mat in the hallway of the Defendant medical facility. Plaintiffs fall occurred as he was making his way toward the building’s exit, not in the course of treatment or any professional relationship with Defendant Hospital. As such, a jury’s common knowledge was enough to determine whether the Defendant Hospital breached a duty to provide safety to Plaintiff by failing to use safe materials for the mat, failing to conduct inspections of the area, and/or failing to provide him with a wheelchair, escort, or additional assistance. The Appeals Court did, however, affirm the dismissal of Plaintiff’s claim for corporate liability, as such a claim requires a certificate of merit and expert testimony unless the medical provider’s negligence is obvious.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or

Windows v. Erie Ins. Exch.

Pennsylvania Superior Court

362 WDA 2016

Decided: May 1, 2017

Superior Court held that Trial Court’s Order denying summary judgment did not establish the law of the case because the exact basis was not established.


Erie Insurance Exchange denied a claim made by the Plaintiff homeowners following the infiltration of raw sewage into their home. Erie filed a Motion for Summary Judgment, arguing that the general exclusion for water damage unambiguously excluded coverage for the homeowners’ losses. The Allegheny County judge ruling on the motion denied summary judgment in a one-line order, which did not specify the basis for the denial. Prior to trial, Erie filed a Motion in Limine, arguing that the law of the case did not apply and that Erie should not be precluded from presenting evidence of its coverage defense. The trial judge denied the Motion in Limine and Erie was not allowed to present evidence that the exclusion should be applied against Plaintiffs. After trial, the jury entered a judgment in the Plaintiffs’ favor for $75,073.56. Erie appealed the denial of summary judgment and the denial of the Motion in Limine.


The Superior Court declined to overturn the denial of the Motion for Summary Judgment. However, the Superior Court held that the trial judge improperly applied the “law of the case” doctrine in ruling on Erie’s Motion in Limine. The Superior Court held that the Order denying summary judgment did not contain reasoning for the denial, and it was unclear whether the denial meant that the water damage exclusion did not apply at all, or whether the water damage exclusion was ambiguous and required further litigation to determine its meaning. As a result, it was improper for the trial judge to speculate that the denial of summary judgment meant that the water damage exclusion did not apply at all.

Questions about this case can be directed Eric Horst, at (215) 564-2928 or


Copsey v. Park

Maryland Court of Appeals

No. 34, September Term, 2016

Decided: May 24, 2017

Evidence of a non-party’s medical negligence is admissible to prove intervening and superseding cause of injuries.


Lance Copsey fell and hit the back of his head playing racquetball. He presented to the emergency room with complaints of nausea and headaches. He was released after displaying normal cranial CT scan results. He returned to the emergency room three months later with complaints of recurring dizziness. Another CT scan revealed normal results. Two weeks later he was diagnosed with signs of neurological problems and was advised to return to the emergency room. Mr. Copsey returned to the emergency room. Dr. Park, a radiologist, interpreted the CT scan and reported an allegedly normal CT scan and MRI/MRA. In the days following, several doctors reviewed the CT and MRI/MRA scans and confirmed that there were no abnormalities. Mr. Copsey was discharged. He died days later after suffering a stroke. A review of his medical records revealed that Mr. Copsey suffered several neurological abnormalities as a result of his fall.

His wife, Mrs. Copsey, sued on behalf of his estate. The initial lawsuit involved Dr. Park and three subsequent treating physicians. Prior to trial, the Copsey Estate settled with two of the subsequent doctors and dismissed the third doctor a day after trial began. Dr. Park, and his practice, remained as the sole Defendants. Dr. Park sought to raise the defense that the negligence of subsequent treating physicians was an intervening and superseding cause of Mr. Copsey’s death. The Estate filed a motion in limine seeking to oppose Dr. Park’s ability to admit evidence of subsequent medical negligence. The trial judge denied the Estate’s motion. The Court of Special Appeals held that the trial judge properly denied the Estate’s motion. The Estate filed a petition for writ of certiorari and the Court of Appeals considered the issue of whether the trial judge erred in admitting evidence of negligence of non-party subsequent physicians.


The Court of Appeals held that evidence of a non-party’s negligence was relevant and necessary in order to give Dr. Park a fair trial, as it tended to show that he was not negligent and thus the claimed prejudice did not outweigh its probative value. The Court also explained that causation was an issue for the jury and that Dr. Park presented sufficient evidence for a reasonable jury to conclude that he was not negligent and, if found to be negligent, that his negligence was superseded by the independent and extraordinary negligence of others.

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

Women First OB/GYN Assoc. v. Harris

Maryland Court of Special Appeals

No. 00315, September Term, 2016

Decided: May 31, 2017

The voluntary dismissal of a tort claim against an employee for no consideration and in the absence of a release does not bar a plaintiff from prosecuting the same claim against the employer based solely on vicarious liability.


Plaintiff filed a one count complaint alleging medical negligence against Women First OB/GYN Associates, LLC and its employee LaKeischa Martin, M.D., for an alleged negligently performed laparoscopic hysterectomy. Plaintiff claimed that Dr. Martin was liable for negligence and Women First was liable under the doctrine of respondeat superior. There was no independent claim for negligence against the employer.

On the first day of trial, Plaintiff dismissed the employee, with prejudice, and the parties stipulated that Dr. Martin was acting within the scope of her employment during the incident. No party executed a written release. At the close of the Plaintiff’s case, Women First moved for judgment arguing that the dismissal of Dr. Martin, with prejudice, operated as a release or adjudication on the merits in favor of Dr. Martin. Because she was the sole agent who Women First could be vicariously liable for, there could be no liability against Women First as a matter of law. The Court denied the motion and Women First renewed the motion for judgment at the close of its case. After the jury returned a verdict in favor of the Plaintiff, the court denied Women First’s motion for judgment notwithstanding the verdict. Women First appealed.


After an extensive review of relevant case law, the Court of Special Appeals concluded that when a dismissal with prejudice of an agent is not given in exchange for consideration, and the merits of the tort claim against the agent have not been adjudicated before dismissal, the dismissal with prejudice does not eliminate any vicarious liability on the part of the employer. The Court reasoned that in an agency relationship based on respondeat superior, the agent’s tortious conduct committed within the scope of the agency is a necessary predicate to hold the principal liable. The Plaintiff need not sue both. It is sufficient for the Plaintiff to sue the principal and put on evidence of the agent’s tortious conduct. In the absence of actual exoneration of the agent, release, or settlement in which the agent has compensated the Plaintiff, the dismissal of the plaintiff is not an adjudication against her; it is only a procedural mechanism to permanently remove her as a defendant. Therefore, her conduct is still attributable to the employer and the employer can be held liable.

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


DeCarlo v. Aqua Beach Resort, LLC et. al.

New Jersey Superior Court, Appellate Division

No. L-0428-14

Decided: June 1, 2017

Summary judgment can be granted, even in cases with photographs and video of the alleged defective condition, where Plaintiff fails to show Defendant has actual or constructive notice of the condition.


Plaintiff DeCarlo filed a negligence action for personal injuries sustained as a result of a fall at Aqua Beach Resort Hotel. Plaintiff had taken a bath, and as she attempted to stand from the bathtub, Plaintiff grabbed onto an adjacent metal bar, and the left side of the bar detached from the wall, causing Plaintiff to fall back into the tub and injure her hips, back and shoulder. Plaintiff reported the incident the following morning. At her deposition, Plaintiff testified that she used the shower in the tub area during each of the three previous days, but had not touched the metal bar prior to the incident, and she did not notice anything wrong with the bar before touching it. Plaintiff stayed in the same room the following year, and a friend staying with her touched the same metal bar, which again came out of the wall. Surprised that the bar was still broken, Plaintiff took several pictures and a video depicting the unattached bar. Defendant's employees testified that numerous employees frequently checked rooms for unsafe conditions. Specifically, the Defendant used “punch lists” at the beginning and end of each season to determine what repairs/replacements need to be made. None of the employees reported nor did the Hotel records reflect, any issue regarding the subject bathtub. Further, Defendant’s employees testified that Plaintiff's room was not equipped with ADA-approved grab bars, but instead the metal bar was a decoration that came with the prefabricated tub. Defendant moved for summary judgment, which was granted by the Trial court, and Plaintiff appealed arguing genuine issues of fact existed.


In affirming the trial court’s decision, the Superior Court explained that the summary judgment records failed to support Plaintiff’s claim that, prior to the accident, Defendant 1) had actual or constructive notice of the dangerous condition, 2) made faulty repairs to the metal bar or bathtub area, 3) did not conduct reasonable inspections to discover the alleged dangerous condition, or 4) otherwise failed to properly protect Plaintiff against such a condition. Lastly, the Superior Court summed up stating, “[w]ithout actual or constructive notice of the dangerous condition, Plaintiff’s claim failed, even if she had photographs and video of the detached bar.”

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

Haines v. Taft; Little v. Nishimura

New Jersey Superior Court, Appellate Division

Nos. A-5503-14T4; A-0727-15T2

Decided: June 1, 2017

Appellate Division rules that plaintiffs may seek recovery of medical expenses above their $15,000.00 PIP limits.


This ruling settles, for now, the common dispute as to whether personal injury plaintiffs can present juries with evidence of their medical expenses that exceeded their elected Personal Injury Protection (“PIP”) policy limits. Both Haines and Little concerned Plaintiffs injured in automobile accidents. Each Plaintiff was covered by a policy that provided for $15,000.00 in PIP coverage and each Plaintiff incurred medical expenses beyond this amount. In both cases, the trial judges entered orders barring the admission of these expenses. The Plaintiffs’ appeals followed.


The Defendants argued that Plaintiffs were not entitled to admit evidence of, or to recover, any medical expenses between Plaintiffs’ elected limits of $15,000.00 and the default limit of $250,000.00. The Court rejected this position by reasoning that the statute specifically permitted policyholders to chose one of four options for lesser PIP limits and that all of these options could be selected for a “standard policy” and therefore Section 12’s limitation on liability for medical expenses applied up to whichever of the coverage amounts was selected for a standard policy rather than the “default” or “standard” coverage amount of $250,000.00. The Trial Court rulings in both Haines and Little were reversed.

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


Kelleher v. Dream Catcher, LLC

United States District Court for the District of Columbia

No. 1:16-cv-02092 APM

Decided: June 2, 2017

Refusing to stay a case pending arbitration where Defendant failed to invoke its right to arbitration in a timely manner.


Defendant removed a case to federal court and did not move to stay the case to enforce a contractual arbitration provision until over five months later.


The Court held that the Defendant failed to timely invoke its contractual right to arbitration, and thereby waived its right to arbitration. The Court explained that the five month delay in invoking the right to arbitration imposed substantial costs on the Plaintiff and required the attention of the Court. While the case was pending for five months, the Defendant filed three Motions to Dismiss, a “meet and confer” conference occurred, the Plaintiff filed an Amended Complaint, the Plaintiff filed its Expert Designation, and the Plaintiff prepared and served interrogatories and document requests and attempted to depose witnesses.

Questions about this case can be directed to Ben Peoples, at (202) 904-2362 or


Scott v. Central Virginia Family Physicians, Inc.

Virginia Supreme Court

2017 WL 2378164

Decided: June 1, 2017

Discharge instructions were enough to create a burden to mitigate damages.


Plaintiff’s decedent first appeared at an emergency room complaining of a headache on July 19, 2013. She was diagnosed with a tension headache, given pain medications, and discharged. Two days later, she appeared at Defendants’ urgent care facility again complaining of a headache. She was examined by Defendant Foster, a physician’s assistant. Mr. Foster diagnosed Plaintiff’s decedent with a tension headache, prescribed a muscle relaxer, and discharged her with instructions to “go home and rest. If [it] gets worse, then…go to the” emergency room. In the days that followed, Plaintiff’s decedent was mostly bed-ridden because of head pain and other symptoms. She took the prescription medication as well as over-the-counter medication. In addition, she smoked marijuana to alleviate the pain.

On July 29, 2013, Plaintiff’s decedent was found unresponsive. She was taken to a hospital where a CT angiogram revealed a ruptured aneurysm. She received treatment; however Plaintiff’s decedent died on August 3, 2013. At trial, evidence of Plaintiff’s decedent’s marijuanas use was admitted, over objection, for the limited purpose of showing that her pain had gotten worse in the days following her visit to Defendants’ facility. In addition, Defendants offered a mitigation of damages instruction that a patient has a duty to use ordinary care to avoid loss, or minimize or lessen the resulting damages, and that failure to use ordinary care precluded the patient from recovering for the aggravation resulting from her failure to use such care. The jury returned a defense verdict. Plaintiff appealed, assigning error to the admission of the marijuana evidence and to providing the instruction on mitigation of damages.


A medical professional’s discharge instruction is sufficient to create a burden to mitigate damages if it informs the patient to take steps for his own protection. Here, Defendant Foster’s discharge instructions were neither vague nor unclear and so, imposed a duty on Plaintiff’s decedent to mitigate her damages. Further, evidence of Plaintiff’s decedent’s marijuana use was not more prejudicial than probative, as Defendants sought to educe evidence of the marijuana use solely for the purpose of showing that her pain had in fact gotten worse after receiving Defendant Foster’s discharge instructions. Judgment affirmed.

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