Law Alerts

Appeals

• Pennsylvania - Communications between counsel and trial expert are not discoverable and are shielded from disclosure by the work-product privilege.

Architectural & Engineering

• New Jersey - Regulatory violations of the Consumer Fraud Act can result in individual liability.
• New Jersey - Lawsuit dismissed after election of new home warranty arbitration remedy.
• New Jersey - Regulatory violations under the Consumer Fraud Act resulted in award of attorney fees.
• Pennsylvania - Waiver of subrogation clause in construction contract may be applied to a subsequent property owner as the third-party beneficiary.
• Pennsylvania - A contract for construction with an owner is prerequisite under Pennsylvania's Contractor and Subcontractor Payment Act, and design professionals may qualify as "contractors" under certain circumstances.

Auto

• New York - Chiropractic manipulation under anesthesia is within the scope of chiropractic services permitted and eligible for reimbursement under New York's no-fault statute.
• Pennsylvania - No expert testimony needed for prescription DUI cases in criminal context.
• Pennsylvania - Pennsylvania State Legislature passes ban on texting by drivers.
• Pennsylvania - As a matter of first impression, text messages are inadmissible heresay without proper authentication and circumstantial evidence corroborating the identity of the sender.
• Pennsylvania - Defendant's preliminary objections sustained dismissing plaintiff's claim where plaintiff failed to specify the order of vehicles positioned in a multi-vehicle chain reaction.
• Pennsylvania - Pennsylvania Supreme Court denies "negligent spoliation of evidence" as an independent cause of action.

Coverage / Bad Faith

• Delaware - Insurer complied with 21 Del. C §2118b by giving the plaintiff 30 days' notice that it was denying her medical claims related to the accident.
• Florida - Insurer had reasonable grounds to deny coverage where the plaintiff's property was not covered under the insurance policy because he did not reside there.
• New Jersey - Plaintiff's claims for common law fraud, bad faith, the New Jersey Consumer Fraud Act and punitive damages were all dismissed.
• New York - Plaintiff's various claims, including breach of the covenant of good faith and fair dealing, corporate malfeasance-tortious interference, fraud, bad faith and unjust enrichment, were all dismissed.
• Ohio - Plaintiff's declaratory judgment action did present an actual case or controversy by pleading actual harm and the significant possibility of future harm.
• Pennsylvania - Insurer did not act in bad faith by making offer below policy limits where there were legitimate issues regarding insured's entitlement.
• Pennsylvania - The gist of the action doctrine barred the plaintiff's tort claim against the insurer.

E & O Coverage (Legal, Accounting, Insurance, Real Estate, Etc.)

• New Jersey - The Appellate Division held that Correctional Medical Services was not entitled to the protections of the affidavit of merit statute because it failed to confirm its licensure.
• Pennsylvania - A Philadelphia County Court of Common Pleas trial court has held that damages for legal malpractice claims sounding in breach of contract are limited to the legal fees the plaintiff paid to his attorney. 

Employment Law

• Delaware - It seems as though there have been a significant amount of pro se employment discrimination complaint filings in the United States District Court in and for Delaware.  A review of the decision from the last six months are decisions on motions to dismiss rather than any substantive decisions.
• Federal - Plaintiff's FMLA inference claim failed where she asserted that she was improperly placed on FMLA leave.
• Federal - District Court holds that a written disciplinary consultation was not an adverse employment action to support a claim pursuant to Title VII
• Federal - District Court dismisses nurse's FMLA and disability discrimination claim when she was terminated eleven days after her return to work following a medical leave.
• Federal - Pennsylvania Commonwealth Court upholds Pennsylvania Human Relations Commission's determination that a personal care facility discharged patient because she had HIV and awarded counsel fees for a frivolous appeal.
• New Jersey - Contract provision may validly shorten CEPA statute of limitations period.
• New Jersey - Adverse unemployment finding may preclude summary dismissal of NJLAD claim.
• New Jersey - NJLAD Public Accommodation protection does not extend to a claim of harassment or a hostile environment when the good/service is actually provided.
• New Jersey - Plaintiff alleging disability discrimination and a failure to accommodate maintains the burden of showing the ability to perform the essential functions of the job with or without accommodation.  The employer is not obligated to "bump" another employee to create acceptable position.

Health Care Liability

• Delaware - Doctor who referred a patient to a specialist had no duty to the patient after the referral.
• Florida - Failure to provide a patient's medical records within ten days constitutes evidence in support of waiver of plaintiff's requirement to provide a corroborating medical opinion to filing suit for medical malpractice, despite plaintiff's failure to provide pre-payment for records.
• New Jersey - The New Jersey Supreme Court places another requirement upon litigants under the Affidavit of Merit Statute.
• Pennsylvania - Plaintiff's expert for certificate of merit purposes must have qualifications such that a trial court would find them sufficient to allow that expert to testify at trial.

Municipal Liability/Civil Rights

• New Jersey - Court stays civil case as criminal charges are pending.
• Pennsylvania - A community college, as a local agency, is not immune under the Pennsylvania Political Subdivision Tort Claims Act for alleged statutory violations of Consumer Protection Law statute.

Product Liability

• Delaware - Motion for summary judgment granted where plaintiff fails to develop expert opinions that fires were such as did not ordinarily occur if those controlling the products exercised proper care.
• Florida - Jury finds defective ladder did not cause man to fall.
• Florida - Cement mixer not to blame in workers' death.
• Florida - Smoker responsible for own death.
• Florida - Cigarette manufacturers not to blame for a man's cancer that he developed after years of smoking.
• New Jersey - The court granted the generic defendants' motion for judgment on the pleadings on all state law claims, finding that they are pre-empted by federal law.
• New Jersey - Plaintiff is entitled to discovery regarding other incidents.
• New York - Panel upholds decision barring expert testimony about the role of Tylenol in causing liver disease.
• New York - Panel allows suit over flaming rum to proceed.
• New York - Insurer spurns manufacturer's offer to pay cost of accident.
• Pennsylvania - Evidence of subsequent remedial measures only restricts introduction of remedial measures taken after occurrence of injury or harm.  Pa.R.C. 407 does not bar admission of incident reports that establish knowledge of problem before occurrence of injury or harm.
• Pennsylvania - Plaintiff's spoliation inference request denied when evidence showed that she reused the product after the incident but failed to maintain possession.
• Pennsylvania - Based on the evidence of record, the court found that "interior paint" was a technical term, and the court did not err in refusing to give the dictionary definition of "interior."
• Pennsylvania - Court denies defendant's motion for summary judgment regarding plaintiff's strict liability and negligence claims against manufacturer of rebar web assembly.

Trucking & Transportation

• Pennsylvania - SEPTA entitled to claim of sovereign immunity in a stopped bus accident.
• Pennsylvania - Pennsylvania Supreme Court denies "negligent spoliation of evidence" as an independent cause of action.

Workers' Compensation

• Delaware - A look at Wal-Mart v. Watson and the Delaware Supreme Court's outline of a reasonable job search and the use of the labor market survey.
• Delaware - The Board's decision denying the claimant's petition to determine compensation due is affirmed where there is substantial evidence to support the conclusion that the claimant's low back condition was not the result of his employment.  The court noted that the Board need not pinpoint the exact cause of the claimant's condition.
• Delaware - The Board holds that the employer is not liable to pay travel expenses for the claimant's spouse to accompany him to medical appointments absent medical evidence that the claimant requires the assistance of a travel companion.
• New Jersey - Employee v. independent contractor: the Appellate Division revisits the definition of "employee" under the New Jersey Workers' Compensation Act.
• New Jersey - The Appellate Division addresses an insanity-based challenge to the statute of limitations provision of the Workers' Compensation Act. 
• New Jersey - Goyden v. State Judiciary and the standard for compensable workplace stress. 
• New Jersey - A judge of compensation may exercise jurisdiction over an insurance coverage dispute if ancillary to a claim currently before the Division of Workers' Compensation.
• Pennsylvania - An employer must pay 100% of charges billed for acute care provided from an accredited Level I Trauma center to a claimant for immediately life threatening or urgent injuries.
• Pennsylvania - A self-insured employer that is required to pay heart and lung benefits in addition to workers' compensation benefits is entitled to reimbursement from the Supersedeas Fund, and two-thirds of the amount paid automatically represents workers' compensation benefits.
• Pennsylvania - A claimant, who lost an eye when a piece of a bowling ball he hit with a sledge hammer broke off and struck him, is held to have violated a positive work order when told to stop immediately before the incident.
• Pennsylvania - The Commonwealth Court denies a claim for a work-related psychiatric injury sustained by a liquor store clerk who was robbed at gunpoint on the basis that it was the result of normal working conditions.
• Pennsylvania - An employer who refuses to pay bills for medical treatment causally related to the work injury, without explanation and without requesting utilization review, is subject to penalties to be imposed at the discretion of the workers' compensation judge.
• Pennsylvania - An IRE that finds no objective evidence of an accepted work injury on the date of the examination may validly assign a zero impairment rating for that condition.
• Pennsylvania - The Supreme Court holds that a medical opinion based upon unsubstantiated assumptions or a proper factual foundation is insufficient to overcome the presumption of occupational disease causation.
• Pennsylvania - The claimant failed to prove that the decedent died in the course and scope of his employment - he was found dead in his home office - since there was insufficient evidence as to how, when and what the decedent was doing at the time he sustained the injury that led to his death.
• Pennsylvania - An employer can pursue termination, suspension or modification of benefits as of a date prior to the issuance of a Notice of Compensation Payable.
• Pennsylvania - A heart attack suffered at home after receipt of a letter terminating employment held not to be within the scope of employment.