Auto Law
By Joshua Romirowsky, Esq. (215.575.2742 or jhromirowsky@mdwcg.com)
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.
Kraft v. State Farm Mut. Auto. Ins. Co., CV-042409/09, 2011 N.Y. Slip Op. 21413, 2011 N.Y. Misc. LEXIS 5537, (Civil Ct. - Queens Cty. Oct. 6, 2011) (Velasquez, J.)
A chiropractor was entitled to recover no fault benefits from an insurer for chiropractic services provided to an insured because the chiropractic manipulation under anesthesia (MUA) performed was not prohibited by the Education Law §6551(1). The law did not prohibit a chiropractor from performing spinal MUA, although the chiropractor was not allowed to administer the anesthesia. The insurer's witness cited no authority to support his contention that a second opinion was necessary before an MUA procedure was performed on a chiropractic patient. The plaintiff's assignee, Dana Schepanski, had been involved in a motor vehicle accident on October 28, 2008, which left her with headaches, neck pain radiating to the shoulders and lower back pain radiating to the left buttocks and hip region. The plaintiff, as co-surgeon, performed five manipulations of the assignee's spine and hip joints while she was under anesthesia. The defendant, State Farm, denied payment of all services rendered by the plaintiff. At trial, the parties stipulated that the sole issue to be determined by the court was the medical necessity of the chiropractic MUA performed by the plaintiff. The court concluded that MUA does not exceed the scope of lawful chiropractic service under the Education Law, which provides that: the practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column. The court found that the plaintiff, as a licensed chiropractor, was authorized to perform the disputed manipulations under anesthesia and that the defendant failed to rebut the presumption of medical necessity of these procedures by a fair preponderance of the credible evidence. Accordingly, the court found in favor of the plaintiff.
Pennsylvania
No expert testimony needed for prescription DUI cases in criminal context.
Commonwealth v. Griffith, PICS No. 11-4443 (Pa. Nov. 2, 2011) (McCaffery, J.)
The Pennsylvania Supreme Court has ruled that the state does not need to present expert testimony in DUI cases where the defendant was under the influence of a prescription drug. Here, the defendant-driver had submitted blood revealing Valium and its active metabolite, although "just below and in the therapeutic concentration range," and admitted to consuming another prescription pain killer earlier in the day. The defendant-driver further exhibited physical signs of intoxication, including loss of balance. "An experienced police officer closely observed [defendant's] behavior, demeanor, unsteadiness, and inability to perform field sobriety tests, all of which led him to request laboratory tests for the detection of controlled substances in [Griffith's] blood," McCaffery said. The Supreme Court concluded that the state had met its burden of proving the defendant-driver was under the influence. It should be noted that the burden of proof by the state in criminal matters is "beyond a reasonable doubt," which is a heavier burden than that required in civil matters, which generally is a "preponderance of the evidence" standard. As such, plaintiffs pursuing civil actions in similar fact patters can submit DUI evidence without incurring the cost and submitting the opinion of an expert to support such a claim.
Pennsylvania State Legislature passes ban on texting by drivers.
The Pennsylvania Senate recently and overwhelmingly approved legislation that prohibits motorists from sending, receiving or reading text messages while driving. A day after the measure passed in the House, senators voted, 45-5, to send it to Governor Corbett, who is expected to sign it. The legislation makes it a "primary offense" to send, receive or read a text message while operating a vehicle, meaning a police officer can stop and ticket a driver seen using a texting device. The Bill sets a $50 penalty for texting while driving. The ban is to take effect 120 days after Corbett signs the measure. Originally, texting while driving was to be a secondary offense, meaning a police officer could cite a driver for it only if the motorist had been stopped for another offense, such as speeding or running a red light, but was later upgraded to a primary offense. Nine states ban the use of handheld cellular phones while driving, and 34 states have banned texting while driving.
As a matter of first impression, text messages are inadmissible hearsay without proper authentication and circumstantial evidence corroborating the identity of the sender.
Commonwealth v. Koch, PICS Case No. 11-4106 (Pa. Super. Sept. 16, 2011) (Bowes, J.)
Text messages admitted into evidence by the trial court constitute inadmissible hearsay. Authentication of electronic communications requires circumstantial evidence that tends to corroborate the identity of the sender. In this case, appellant Amy Koch appealed the judgment of sentence imposed following her conviction of possession with intent to deliver marijuana and possession of a controlled substance as an accomplice. A confidential informant told police that Norman Koch was selling cocaine. Koch resided with his sister, the appellant. During a search of the residence, police found marijuana, cash and other paraphernalia in the house. In addition, the appellant's cell phone was seized. The text messages on her phone were transcribed, and the Commonwealth offered, over objections to authenticity and hearsay, testimony and a transcript of 13 drug-related text messages.
As a matter of first impression, the appellant challenged the admissibility of the text message evidence and what is necessary to authenticate a text message. Here, the appellant claimed that because there was no evidence substantiating that she was the author of the text messages or evidence that the texts were directed to her because there was evidence that another person was using her phone for some of the time. The court noted that electronic communications, such as e-mail and instant messages, can be authenticated under Pa.R.E. 901 and case law. Such evidence is evaluated on a case-by-case basis as any other document. In this case, police could not confirm that the appellant was the author. The court found that "authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required."
Here, there was no evidence to substantiate that the appellant wrote the drug-related text messages, nor was there testimony from persons who sent or received the messages, and no contextual clues revealing the identity of the sender. Accordingly, the court found that the text messages constituted inadmissible hearsay.
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.
Tomsky v. Ean Trust, PICS Case No. 11-4132 (Ct. Com. Pls. - Lawrence Cty, Sept. 12, 2011)
The plaintiffs' complaint, which arose out of a multi-vehicle chain reaction automobile accident, was inadequate where it failed to specify the order in which the vehicles involved in the accident were positioned and whether the vehicles were static or in motion. As a result, the defendant's preliminary objections were sustained.
A multi-vehicle, chain reaction automobile accident occurred on New Butler Road in Shenango Township. Allegedly, driver Michael Lowry diverted his attention from the roadway and struck the vehicle immediately in front of his, starting a chain reaction. Plaintiffs Anita and Eugene Tomsky, individually and as administrator of the estate of decedent Eugene Tomsky, brought this action after the accident.
The plaintiffs' amended complaint stated only that Lowry's vehicle was at the end of the chain. The Tomskys alleged that the other three vehicles, one driven by the plaintiffs and the other two driven by defendants Hochendoner and Francis, were positioned somewhere in front of Lowry's vehicle. However, the plaintiffs failed to plead the specific location of the vehicles in the accident or which vehicle was initially struck by Lowry's vehicle. According to the defendants, the amended complaint violated the specificity requirements of Pa.R.Civ.P. 1019 in that the plaintiffs intentionally pled vaguely in regard to the actual facts of the alleged accident. The defendants objected to the plaintiffs' failure to specify the order in which the vehicles involved in the accident were positioned and whether the vehicles were static or in motion. According to the defendants, such factual knowledge was readily available to the plaintiffs and the plaintiffs purposefully excluded these facts so as to avoid any potential motions for judgment on the pleadings.
The court agreed with the defendants, noting that the positioning of the vehicles involved in such a chain reaction accident, and whether the vehicles were moving or static, were essential components of the plaintiffs' case. The complaint did not contain any facts from which the court could determine the order of the vehicles and their movement. The court also agreed with the defendants that the plaintiffs had pled insufficient general averments of negligence and/or statutory violations in contravention of the holding in Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). As such, the court sustained the defendants' preliminary objections but granted the plaintiffs' leave to amend.
Pennsylvania Supreme Court denies "negligent spoliation of evidence" as an independent cause of action.
Pyeritz v. Commonwealth of Pennsylvania, State Police Dept., 2011 Pa. LEXIS 2831 (Pa. Nov. 23, 2011)
The appellants, an estate Administratrix and others, sought review of an order from the Commonwealth Court, which affirmed a trial court order that granted summary judgment to appellees, the state police department and various troopers, in the appellants' action that alleged negligent spoliation of evidence. "Spoliation of evidence" is the non-preservation or significant alteration of evidence for pending or future litigation. When a party to a suit has been charged with spoliating evidence in that suit, courts have allowed trial courts to exercise their discretion to impose a range of sanctions against the spoliator. However, courts have never imposed a duty in tort not to commit negligent spoliation of evidence, and such a cause of action is not viable in Pennsylvania.
This matter arose from destruction of a safety harness that was allegedly crucial evidence in another action. A decedent had used a black nylon tree stand safety harness to hold himself to a tree stand. However, he was found dead at the bottom of the tree with the harness ripped in two. The harness was seized during the criminal investigation of the death. Although a state police officer had agreed to retain the belt in police custody for the appellants' later use, it was destroyed before it was returned to appellants. The harness was allegedly crucial evidence in a separate civil action, and the appellants sued the appellees based on the destruction of personal property. The Court affirmed that Pennsylvania law does not recognize a cause of action for negligent spoliation of evidence. Upon analysis as to whether to impose a duty under a negligence standard, the Court concluded that, on balance, the negative consequences of imposing a duty not to commit negligent spoliation of evidence outweighed any benefits the recognition of the tort might afford.
