eNotes: Liability – October 2020
October 01, 2020
MARYLAND CLIENT ADVISORIES
Maryland adopts Daubert factors when considering admissibility of expert testimony
In its last opinion of the 2019 term, Maryland’s Court of Appeals, in a 4-3 decision, overruled its prior case law on expert testimony and formally adopted the Daubert reliability factors for all expert testimony. See Rochkind v. Stevenson, No. 47, September Term, 2019. Maryland now joins the super-majority of jurisdictions who follow Daubert.
The underlying dispute involved the admissibility of expert testimony of a pediatrician who had opined that the plaintiff’s ADHD was causally related to lead poisoning as a small child. On appeal, the defendant invited the Court to consider adopting the standard for admitting expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The Court determined Maryland’s current scheme has “led to a duplicative analytical process.” Under Maryland’s prior standard, the trial courts evaluated expert testimony twice – first using Frye-Reed, and then using Maryland Rule 5-702(3). Now, the Court seeks to chart a new course forward under a single analytical standard by which trial courts will evaluate all expert testimony. The impetus behind the decision to adopt Daubert was “to refine the analytical focus when a court is faced with admitting or excluding expert testimony.”
Effective October 1, judgment creditors can no longer seek license suspension though the Motor Vehicle Administration
Effective October 1, 2020, under Chapter law 149, Sections 17-204 to 17-207 of the Transportation Article are repealed. Previously, these sections of the Transportation Article permitted a judgment creditor to request the Motor Vehicle Administration to suspend the license of a judgment debtor upon proof of a certified judgment and a certificate of facts from the District Court of Maryland. Now, judgment enforcement mechanisms are limited to garnishing the debtor’s wages, garnishing the debtor’s bank account, and seizing the debtor’s personal property or real estate. This new statute is also retroactive. As of October 1st, the Motor Vehicle Administration will withdraw any prior suspension of driver’s license or driving privilege previously entered.
Questions regarding these advisories can be directed to Lauren Upton, at (443) 641-0572 or firstname.lastname@example.org.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Bachtell v. General Mills, Inc.
United States District Court for the Middle District of Pennsylvania
2020 U.S. Dist. LEXIS 153667
Decided: August 25, 2020
Medical negligence Defendants are not joint tortfeasors vis-à-vis product liability Defendants who had already settled with the Plaintiffs in a separate action.
After their son died from choking on a plastic cap from a Betty Crocker cake icing tube, the Plaintiff-parents filed a products liability action, and other claims, against the manufacturers of the product. The manufacturer Defendants joined several health care providers, including the hospital, emergency room physicians, surgeons and their medical groups, as Third Party Defendants and alleged that they were liable to the manufacturer Defendants under common law contribution claims for not saving Plaintiffs’ son’s life. Thereafter, the medical malpractice Defendants filed Motions to dismiss those claims and argued that they were not joint tortfeasors vis-à-vis the manufacturer Defendants.
Relying on Pennsylvania case law developed over 30 years, the Court held that “a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors.” Despite that line of cases, the Court grappled with the significance of a lone Pennsylvania Supreme Court decision that indicated “if treatment negligently exacerbates the original injury both the original tortfeasor and the healthcare providers become tortfeasors and both must answer to each other in compensating the injured for the losses they [each] inflict.” The Court called that language “prototypical dicta” and ignored it, but found the thrust of that statement essentially true. Although both the manufacturer Defendants and the medical malpractice Defendants are in fact separate “tortfeasors,” they are not “joint tortfeasors.” The Court also distinguished a decision from Allegheny County where the Plaintiffs had sought damages from the original tortfeasor that included damages for the harm caused by the medical malpractice Defendant as permitted by Pennsylvania law. In this case, since the parents had already settled with the medical malpractice Defendants before they were joined as third party defendants by the manufacturer Defendants, the parents’ claims were focused entirely on the damages caused by the manufacturer Defendants and not the damages allegedly caused by the health care providers. Since any amendments to the pleadings under the circumstances would be futile, the Court granted the medical malpractice Defendants’ Motions to dismiss as a matter of law.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or email@example.com.
PENNSYLVANIA CASE SUMMARIES
Kurach v. Truck Ins. Exch.
Pennsylvania Supreme Court
No. 12 EAP 2019, No. 13 EAP 2019
Decided: August 18, 2020
Court affirms that insurer was entitled to withhold general contractor’s overhead and profit expenses from actual cash value payment.
Plaintiff’s Kurach and Wintersteen each purchased insurance policies from Defendant Truck Insurance Company to cover their residential dwellings situated in Pennsylvania. Each paid an additional premium for “replacement cost coverage.” Both sustained water damage to their houses and filed a claim with the insurer under their policy. The policies set forth a “two-step” settlement process. The first step of the process required the insurer to pay the actual cash value (ACV) of the property at the time the policyholder sustained a loss. The second step required the insurer to pay the depreciated value of the damaged property and also the expense of hiring a general contractor, unless the law of Pennsylvania required payment of general contractor’s overhead and profit (GCOP) to be paid with the ACV payment. Each used their own claims’ expert to opine as to the costs of repair and replacement of the damaged property. Those costs included the services of a general contractor, and it was undisputed that the services of a general contractor would be reasonably necessary to complete the repairs. The insurer made the step one payment to each Plaintiff for the ACV of their damaged property, excluding depreciation of the property and GCOP. Neither carried out any repairs to their damaged property. Both filed individual suits against the insurer for breach of contract for failing to include the GCOP as part of the step one ACV payment. The Trial Court consolidated both actions.
The Trial Court found that the policy language was ambiguous, and held that Pennsylvania law requires estimated GCOP to be included in ACV payments when the use of a general contractor is reasonably likely to be necessary to repair damage to a home. The Superior Court reversed based on the explicit policy language. The policy language included a definition of ACV and added additional restrictive terms to that definition specifically limiting the payment of GCOP unless and until the policyholder retained a general contractor and began repairs. The Superior Court held that explicit policy language can supersede definitions established by case law. Further, the Court found that the policyholders did not identify any case that set forth a public policy that ACV must include GCOP.
The Supreme Court affirmed the Order of the Superior Court and held that under the terms of the replacement cost coverage policies, the insurer was permitted to withhold from any ACV payment the GCOP expenses, unless and until the policyholders undertook repairs of the damaged property, even though the services of a general contractor were reasonably likely to be needed to complete the repairs, because the policies, by their plain terms, specified that payment of the GCOP was conditional in that such payment would not be made unless and until the policyholders actually incurred and paid such costs. The law of Pennsylvania did not otherwise require payment of the GCOP before repairs began and the policyholders did not undertake such repairs.
Questions about this case can be directed to Amanda Hennessey, at (717) 237- 7103 or firstname.lastname@example.org.
Kozak v. West Vincent Township
Pennsylvania Superior Court
No. 292 EDA 2020
Decided: September 15, 2020
Summary Judgment affirmed where Plaintiffs lack expert testimony to establish causation of injury.
In an action against a landowner, Plaintiff alleged that she tripped and fell on a defective walkway, she sustained a traumatic brain injury, and suffered an episode of temporary paralysis requiring hospitalization. A neuropsychological examination seven months after the accident noted that Plaintiff landed on her hands and knees, but did not strike her head, and Plaintiff had been evaluated twice for suspected strokes and was diagnosed with a transient ischemic attack. Defendant sought summary judgment because the Plaintiff failed to present expert testimony to establish that she was diagnosed with a traumatic brain injury or that her conditions were caused by the alleged accident. Plaintiff contended that her own lay testimony was sufficient to satisfy her burden of proof. The Trial Court entered summary judgment in favor of Defendant.
The Superior Court disagreed with Plaintiff that no medical expert testimony was required because the injury complained of was not the type that one would reasonably expect to result from the accident in question. The Court observed that even her own neuropsychological report was suspect of a concussion from Plaintiff’s description of this incident and it was unlikely that her cognitive symptoms resulted from a concussion. Plaintiff failed to make out a prima facie cause of action because she offered no evidence to explain the causal relationship between the fall and her claimed injuries.
In affirming the judgment of the Trial Court, the Superior Court held that under the evidence presented, lay testimony alone was insufficient to establish that Plaintiff’s symptoms were caused by the fall.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
A.S. v. School House Day Care Ctrs., Inc.
Pennsylvania Superior Court
2020 Pa. Super. Unpub. LEXIS 2773
Decided: August 31, 2020
The admission of evidence suggesting contributory or comparative negligence on the part of parent plaintiffs was harmless to the verdict finding in favor of the day care center and, as such, it was not the basis for a new trial.
A child almost drowned during a field trip to a pool. The child could not swim and his parents sent him on the trip without any flotation devices known as “swimmies.” The Court admitted this evidence over the parents’ objection at trial. The jury found in favor of the day care center and the Trial Court denied the parents’ Motion for a new trial. The Superior Court affirmed the judgment, deeming the admission of the evidence to be a harmless error.
In affirming, the Superior Court held that an error in the course of trial is harmless if it could not have contributed to the verdict. Any purported error regarding questions of comparative or contributory negligence were not prejudicial and could not serve as the basis for a new trial because the jury found no negligence on the part of the defendant day care center.
Questions about this case can be directed to Louis Long, at (412) 926-1424 or firstname.lastname@example.org.
Spolar v. Price Chopper
Pennsylvania Superior Court
No. 119 MDA 2020
Decided: August 26, 2020
Summary Judgment affirmed where Plaintiff failed to establish hills and ridges where generally slippery conditions prevailed in the community.
On the morning of her fall, Plaintiff observed a wintry mix and ice on the ground at her house. When she arrived at the Defendant’s parking lot, she saw Defendant’s manager checking the asphalt surface with his foot, as if to check for ice. Plaintiff testified that the whole parking lot looked wet. Upon alighting from her car, Plaintiff slipped and fell on ice she described at clear, smooth and wet. The snow removal contractor who inspected the area after Plaintiff fell, described the condition as smooth, black ice. Plaintiff sought damages for injuries claimed to have resulted from negligent maintenance of the parking lot. Defendants sought summary judgment because the Plaintiff’s testimony failed to establish that precipitation was permitted to accumulate in an unreasonable form of hills and ridges so as to give rise to liability of the Defendants. The Trial Court entered summary judgment in favor of Defendants.
The Superior Court noted that the hills and ridges doctrine only applies where an entirely natural accumulation of snow or ice following a meteorological event causes injury to a Plaintiff. Proof of hills and ridges need not be established where a specific, localized patch of ice exists on a parking lot or sidewalk otherwise free of snow or ice. The Court concluded that the hills and ridges doctrine applied because the Plaintiff testified to a wintry mix that morning, together with the existence of ice at her home, and the snow removal contractor testified that the whole lot was covered with black ice. Further, since the ice was described at clear, wet and smooth, there was no evidence of hills and ridges.
In affirming the judgment of the trial court, the Superior Court held reiterated that the hills and ridges doctrine applies to business invitees who sustain injury on business property surface that are covered with snow or ice.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
Fulano v. Fanjul Corp.
Pennsylvania Superior Court
2020 Pa. Super. 166
Decided: July 10, 2020
Plaintiffs’ Complaint was properly dismissed against foreign companies for lack of personal jurisdiction.
Plaintiffs were comprised of forty-one Dominican residents who claimed that they suffered adverse health effects when they were exposed to toxic pesticides and herbicides while working as fumigators in the sugar cane industry in the Dominican Republic. Plaintiffs filed suit against four Defendants in the Court of Common Pleas of Philadelphia County, Pennsylvania, including Fanjul -a Florida corporation, Inicia -a British Virgin Islands corporation, Drexel- a Tennessee corporation, and UPL -an Indian corporation. All Defendants filed preliminary objections for lack of personal jurisdiction. Following discovery limited to the personal jurisdiction issue, including deposition of corporate-designees, the Complaint was dismissed against all Defendants for lack of personal jurisdiction.
The Superior Court affirmed as to all Defendants.
Plaintiffs’ argument that Fanjul was subject to specific personal jurisdiction because of the “stream of commerce” theory was rejected because the Plaintiffs claims did not arise from any contacts with Pennsylvania. They were allegedly injured while in the Dominican Republic, not Pennsylvania. The Superior Court affirmed the Trial Court’s decision as to Inicia, a British Virgin Islands corporation, under the same analysis.
As to Drexel, a Tennessee corporation, both of Plaintiffs’ arguments that Drexel had substantial contacts with Pennsylvania and that it consented to jurisdiction by registering their products under the Pennsylvania Pesticide Control Act were rejected. Noting that general personal jurisdiction “will not lie” in a state in which a corporation is neither incorporated nor has its principal place of business unless a corporation’s activities within a state are “so substantial and of such nature as to render the corporation at home in that state”, the Superior Court found that Drexel’s contacts with the state were insufficient to establish general personal jurisdiction. Drexel’s only physical presence in the state was a leased warehouse and they did not have any Pennsylvania employees. Further, their only distributor customer in Pennsylvania accounted for less than 3% of its total gross revenue. The Superior Court also rejected Plaintiffs’ argument that Drexel consented to jurisdiction by registering its products under the Pennsylvania Pesticide Control Act, because the Act did not contain any language that would have specifically advised Drexel that they were consenting to jurisdiction.
Finally, the Superior Court also rejected Plaintiffs’ argument that UPL, an Indian corporation, was subject to general personal jurisdiction through one of its subsidiaries under an “alter ego” theory. If UPL’s subsidiary was merely an instrumentality of the parent company, the “alter ego” theory would be apply and UPL could be subject to general person jurisdiction through its subsidiary. However, when applying the “degree of control” factors, the Superior Court found that the subsidiary was a typical parent-subsidiary relationship because the subsidiary did not own any stock of UPL, the companies did not contain any common officers or directors, there were no common use of employes, and there was no interchange of managerial or supervisory personal. Accordingly, the Superior Court found no error in finding that the subsidiary did not impute general personal jurisdiction in Pennsylvania to UPL.
Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
Asmussen v. CSX Transp., Inc.
Maryland Court of Special Appeals
No. 814, September Term, 2019
Decided: September 10, 2020
There is no functional difference between a trial court’s decision to modify or to deny modification of the scheduling order and a trial court’s decision to admit or strike witnesses and other evidence that was belatedly designated.
Paul Asmussen filed suit against CSX Transportation, his former employer, alleging that his kidney cancer was caused by exposure to toxic elements while he was a trackman. Pursuant to the Scheduling Order, Asmussen submitted a bare-bones expert designation identifying four potential expert witnesses. Asmussen submitted an amended designation identifying two causation witnesses. CSX was dissatisfied with Asmussen’s amended designation and filed a Motion to compel which was denied.
Amussen withdrew one of his causation experts. After the deposition of the other causation expert, it was clear the causation expert was not qualified to opine as to the causation of Asmussen’s kidney cancer. Amussen then sought to bring back his withdrawn expert for his causation opinion. This withdrawn expert’s opinions were not provided to opposing counsel prior to the close of the discovery deadline. Amussen also filed a motion to modify the Scheduling Order on the last day of the discovery deadline. CSX moved to strike Amussen’s expert witnesses and filed a Motion for summary judgment. The Trial Court denied Amussen’s Motion to modify the Scheduling Order and granted CSX’s Motion to strike. CSX’s Motion for summary judgment was also granted.
The Court of Special Appeals held that the Circuit Court did not abuse its discretion in denying the Motion to modify the Scheduling Order or in striking Asmussen’s experts. In evaluating both Motions, the Trial Court is to consider whether the party has substantially complied with the Scheduling Order and good cause for deviation from that order has been shown by the moving party. The Trial Court did not abuse its discretion in finding that Amussen’s failure to meet the Scheduling Order deadlines was the result of indefensible lack of diligence. Furthermore, CSX was entitled to summary judgment in its favor as Asmussen had no witness able to establish the causal link between his cancer and CSX’s alleged negligence.
Questions about this case can be directed to Lauren Upton, at (443) 641-0572 or email@example.com.
NJ CASE SUMMARY
Estate of Narleski v. Gomes
New Jersey Supreme Court
A-9/10 September Term 2019, 083169
Decided: September 17, 2020
NJ Supreme Court holds that persons under 21 years of age, but over 17 years old, who host underage persons at gatherings where alcohol is consumed, may be liable for tort committed by intoxicated underage person.
Defendant Zierzynski, then 19 years old, permitted underage persons to consume alcohol at his home. Plaintiff Decedent Narleski and Defendant Gomes left Zierzynski’s home intoxicated after having consumed alcohol. Narleski was a passenger in the Gomes’ vehicle. Gomes crashed the vehicle, and Narleski was killed in the accident.
Narleski’s parents filed a wrongful death action against Gomes, Gomes’ parents, and Amboy Food Liquor – the store where the alcohol was purchased. Zierzynski was later joined in the action. The Trial Court granted summary judgment as to Zierzynski, ruling that he did not owe a duty to supervise his friends at his home.
The Appellate Division affirmed the grant of summary judgment. However, the Court announced a new prospective rule that underage adults owe a common law duty to desist from facilitating the drinking of alcohol by underage adults in their place of residence.
The NJ Supreme Court reversed the Appellate Division. The Court held that the common law duty announced by the Appellate Division was not a new rule of law and was supported by prior precedent and statutory authority. Therefore, the rule was applicable in the present case. The Court noted that common law imposed liability on a social host who served alcohol to a visibly intoxicated guest knowing that an accident may be foreseeable. The Court held that this duty also applied to an underage adult (an adult over the age of 18 but under the age of 21), indicating that it represented a logical extension of common law and statutory law aimed at preventing driving while intoxicated.
Questions about this case can be directed to Michael Bishop, at (908) 574-0510 or firstname.lastname@example.org.
VA CASE SUMMARY
Hampton v. Meyer
Virginia Supreme Court
2020 Va. LEXIS 97
Decided: August 27, 2020
Plaintiff’s use of an incorrect name in the complaint was a misnomer; therefore, the complaint was not timed barred.
Plaintiff was a passenger in a Chevrolet Malibu struck by a GMC Suburban. According to the police report, the driver of the Suburban, Michael Patrick Meyer (Michael), ran a red light, striking the Malibu. Plaintiff filed a complaint against Michael, setting forth the facts as contained in the police report. Notably, the complaint alleged a cause of action for negligent operation of the Suburban by the person acting in the capacity of its driver and all of the alleged acts arose from the manner of the Suburban’s operation.
After filing the initial complaint against Michael, the involved insurer informed Plaintiff that Noah Meyer (Noah) had actually been driving the Suburban at the time of the accident. Plaintiff thereafter nonsuited his case and filed a new complaint against Noah. The new complaint was filed after the original statute of limitations had run, but within the statute of limitations extended by the nonsuit. Other than changing the name of the Defendant from Michael to Noah, the complaint was substantially the same. The Circuit Court granted Noah’s plea in bar, dismissing the lawsuit with prejudice because the lawsuit had not been filed against Noah within the applicable statute of limitations. Plaintiff appealed.
Whether the incorrect identification of a party is a misnomer or misjoinder is a question of law reviewed by the appellate court de novo. The key distinction between a misnomer and a misjoinder is whether the incorrectly named party in the pleading is, in fact, the correct party who has been sufficiently identified in the pleadings. When making this determination, the court considers the pleadings as a whole. Here, Plaintiff’s complaint correctly identified the entity – the driver of the Suburban – and it was clear that Plaintiff’s intent was to bring a cause of action for negligent driving against the driver. Therefore, Plaintiff sued the correct person – the driver – and simply used an incorrect name, the one shown on the police report. This was not a mistake by Plaintiff; rather it was a misnomer. Thus, the complaint against Noah was not time barred.
Questions about this case can be directed to Lacey Conn, at (571) 464-0433 or email@example.com.