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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN PENNSYLVANIA WORKERS’ COMPENSATION IN 2025

What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025

December 1, 2025

by Francis X. Wickersham

1.    Pennsylvania Supreme Court holds that the compensation rate for specific loss benefits is controlled by Section 306(c) of the Act, not Section 306(a)
Jennifer Jackiw v. Soft Pretzel Franchise, 329 A.3d 1152 (Pa. Cmwlth. 2025) 

The claimant crushed her arm in a pretzel machine at work and needed it amputated. She and her employer agreed that this injury was a specific loss of the forearm, entitling her to compensation benefits for 390 weeks total: 370 weeks paired with 20 weeks of a healing period. The parties disagreed on how to calculate the weekly benefit amount. The claimant claimed that the employer’s position on her compensation rate, rooted in Section 306(a) of the Act, was too low. She argued that Section(c)(25) for specific loss benefits should apply. The workers’ compensation judge found that Section 306(a) should apply, and the Appeal Board and the Commonwealth Court affirmed. However, the Supreme Court reversed, finding that Section 306(c) was the proper formula for calculating the compensation rate for loss of use of a forearm. The court held that the General Assembly intended for the Act to utilize one formula for calculating total disability benefits and another for calculating specific loss benefits. 

 

2.    Pennsylvania Supreme Court: Treatment plan items, including cannabinoid oil, count as “medicines and supplies”; cost rules apply to providers, not claimants
Mark R. Schmidt v. Schmidt, Kirifides & Rassias, P.C., 333 A.3d 310 (Pa. 2025)

The claimant sustained a lower back injury while loading files into a trial bag. The workers’ compensation judge found that this aggravated the claimant’s pre-existing degenerative disc disease. The claimant filed a Penalty Petition against the employer for not covering his out-of-pocket expenses for CBD products to treat pain. The judge granted the petition, deeming CBD oil a “supply” under Section 306(f1)(1)(i) of the Act. Upon the employer’s appeal, the Appeal Board held that CBD oil is not a “supply” without FDA approval and the claimant did not provide necessary bills and records for payment. The Supreme Court affirmed what the Commonwealth Court held on appeal, that CBD oil is a “medicine” and “supply” under the Act, and said Act mandates providers to submit bills on specified forms for payment, not employees. Further, the Act does not require FDA approval for a “supply.” Thus, the claimant was entitled to full reimbursement from the employer for his out-of-pocket expenses. 

 

3.    Pennsylvania Supreme Court holds that a specific loss award is survivable and payable to claimant’s estate, even though claimant’s death was related to work injury 
Kristina Steets v. Celebration Fireworks, Inc., 335 A.3d 1076 (Pa. 2025)

The workers’ compensation judge granted the claimant’s Claim and Review Petitions that requested specific loss benefits, and the Appeal Board and Commonwealth Court affirmed. However, the claimant died from her injuries while the decision from the Commonwealth Court was pending. The claimant’s estate filed petitions seeking payment of the specific loss award by the judge that was under appellate review when the claimant died. The judge denied the estate’s petitions, notwithstanding the claimant’s funeral expenses. The Board and Commonwealth Court affirmed, but the Supreme Court reversed, holding that the decedent’s pending benefits were survivable and payable to her estate. Per Sections 306, 307 and, in particular, the plain language in 410 of the Act, specific loss benefits may be awarded after a death caused by a work-related injury where benefits are pending at the time of the claimant’s death. 

 

4.    Commonwealth Court upholds employer’s full subrogation lien; refusal to negotiate not bad faith
Martha Garduno Mondragon v. Jo Jo Pizza, 329 A.3d 790 (Pa. Cmwlth. 2025) 

The claimant sustained slip and fall injuries on ice in the employer’s parking lot. Her Claim Petition was granted, and the workers’ compensation case was settled by a Compromise and Release Agreement (C&R), which recognized the employer’s right to subrogation against the property owner to the extent of the employer’s lien. Claimant’s counsel then began negotiations with the employer to voluntarily release its lien. However, the employer declined and filed a petition to recover its full lien. The employer also filed a petition in civil court to enforce a judge’s subpoena for the claimant to produce all copies of checks, releases and distribution sheets, which the claimant refused to do. The trial court held claimant’s counsel in civil contempt for willful noncompliance with the subpoena, and the Commonwealth Court rejected the claimant’s appeal, remanding the case to the workers’ compensation judge. The judge granted the employer’s petition, and the Appeal Board affirmed. The Commonwealth Court affirmed, holding that the employer’s refusal to reduce or negotiate its subrogation lien does not constitute bad faith, emphasizing that the claimant agreed in the C&R that the employer’s subrogation lien was intact.

 

5.    In seeking to add a distinct, consequential injury to NCP and to reinstate indemnity payments for related disability, petitions must be filed within three years of the date of most recent compensation payment, per Section 413(a) of the Act
Matthew Grow v. PECO Energy Company (WCAB), 329 A.3d 819 (Pa. Cmwlth. 2025) 

The claimant sustained a neck injury at work in 2013, and the employer suspended his benefits upon his return to work in 2014. The claimant underwent cervical surgery in 2021 and filed Reinstatement and Review Petitions in 2022. The workers’ compensation judge granted the petitions, and upon the employer’s appeal, the Appeal Board reversed. The claimant appealed, and the Commonwealth Court affirmed the Board’s decision, concluding that the claimant was untimely in filing the petitions. The court held that the 2021 surgery, while related to the accepted work injury of contusions and fractures at the C3-C4 level, was a distinct and consequential injury. Thus, the claimant had to file his petitions within three years of the date of the most recent compensation payment, which he did not file.

 


6.    Claimant’s receipt of administrative time while out on leave for COVID-19 is not payment in lieu of workers’ compensation benefits 
Jaime Brown v. City of Philadelphia (WCAB), 330 A.3d 12 (Pa. Cmwlth. 2025) 

The claimant, a police officer, was out of work for a work-related physical injury. The day after his November 3, 2020, return to work, he claimed that he contracted COVID-19 while in the office. He was off from work from November 4, 2020, until April 1, 2022; and at no point did he file a Claim Petition for COVID-19. While on leave, he received full pay without depleting sick or vacation time and was under the impression that his time off equated “E-time” (“excused time”/ET), which ended on March 5, 2022; from March 5 to April 1, 2022, the claimant received his normal salary through accrued vacation time. The employer then filed a Notice of Compensation Denial for the alleged COVID-19 exposure. The workers’ compensation judge dismissed the claimant’s Reinstatement and Penalty Petitions, finding that the ET payroll designation did not constitute payment of wages in lieu of workers’ compensation, that the employer did not intend to use ET pay as an agreement to pay workers’ compensation benefit and that discontinuation of ET did not constitute a unilateral cessation of benefits. The claimant appealed, and the Appeal Board and the Commonwealth Court affirmed, stating COVID-19 counts as E-time, regardless of whether the exposure is work-related. 

 

7.    Payments made by an employer to a claimant for a COVID-19 diagnosis were not in lieu of workers’ compensation’ therefore, unilaterally stopping them does not violate the Workers’ Compensation Act 
William Bolds v. City of Philadelphia, 333 A.3d 765 (Pa. Cmwlth. 2025) 

The claimant alleged that he contracted COVID-19 while working as a police officer in May 2020. He designated his time off from work due to COVID-19 as “E-Time” (“excused time”/ET), and he received full salary, with no loss of sick or vacation time. Payments continued through March 5, 2022, at which point the claimant began using accrued sick/vacation time. He did not return to work. On January 31, 2022, the claimant filed Reinstatement and Penalty Petitions, alleging the employer unilaterally terminated benefits in January 2022 and paid wages in lieu of workers’ compensation benefits. The employer filed a Notice of Workers’ Compensation Denial, denying liability for work-related COVID-19. The workers’ compensation judge denied the claimant’s petition, holding that payments made under E-Time do not constitute the employer’s agreement that the claimant had a work-related COVID-19 diagnosis. On appeal, the Appeal Board affirmed, as did the Commonwealth Court, which held that the employer’s signing off on E-Time was intended to protect workers as an emergent response to COVID-19 in 2020, regardless of whether the disability was work-related.

 

8.    Commonwealth Court: no reimbursement mechanism for insurers’ overpayments to pharmacies under Workers’ Compensation Act
Pioneer Construction Company, Inc., Eastern Alliance Insurance Company, and Employers Alliance, Inc. v. Insight Pharmaceuticals, LLC d/b/a Insight Pharmacy, 338 A.3d 234 (Pa. Cmwlth. 2025) 

A workers’ compensation carrier (the insurer) filed a Petition to Review Medical Treatment and/or Billing (Billing Review Petition), seeking reimbursement for an overpayment they made to a pharmacy for compound pain creams previously found to be not reasonable or necessary for treatment of the claimant’s work injury in a prior Utilization Review (UR) Determination. The insurer argued that the workers’ compensation judge had equitable powers under the Act to order the reimbursement. The pharmacy argued the judge lacked jurisdiction to order the reimbursement as the pharmacy could not be a party to the UR and that the Act contained no reimbursement provision for insurers who overpay providers. The judge granted the petition. The insurer then filed an enforcement action in the Court of Common Pleas, and the pharmacy’s motion to dismiss the action was denied. The pharmacy appealed to the Commonwealth Court, which held that because the pharmacy was not, and could not be, a party to the UR and the judge’s proceedings, the trial court erred by not striking the judgment against the pharmacy. The court further held that the reimbursement awarded by the judge was not contemplated by the Act, even as a matter of equity. The court said there was no mechanism in the Act, either expressly or by implication, for an employer/insurer to recoup monies it mistakenly paid or overpaid to a pharmacy.

 

9.    Commonwealth Court affirms claimant’s electrocution injury; employer received timely and adequate notice under Sections 311 and 312 of the Act
Kimberly-Clark Mill v. William Moss, Jr. (WCAB), 344 A.3d 443 (Pa. Cmwlth. 2025) 

The claimant worked for the employer for 17 years as a machine operator and firefighter. He filed a Claim Petition alleging he was electrocuted in 2018 while vacuuming at work, causing severe tremors and worsening tremors from a prior work-related electrocution in 2013. The workers’ compensation judge granted the Claim Petition, and the Appeal Board affirmed. The employer then appealed to the Commonwealth Court, primarily arguing that the claimant failed to establish that he gave timely notice of his work injury. The court, however, rejected this argument and dismissed the appeal, holding that under Sections 311 and 312 of the Act, which work together as to the timing and content of notice, the employer was provided with information concerning the time and place of injury, that it occurred at work and that a reasonable description of the injury was given.


 
10.    Commonwealth Court recognizes firefighter’s PTSD claim; infant CPR incidents were a singular, extraordinary event and deemed an abnormal working condition
Brian Ganley v. Upper Darby Township (WCAB), --- A.3d ---, (Pa. Cmwlth. 2025)

In his job as a firefighter, the claimant experienced two events within a period of roughly two and a half years in which he performed cardiac pulmonary resuscitation (CPR) on infants, both of whom were not resuscitated. The first event involved a two-week-old infant, and the claimant suffered mental issues related to the incident but continued working for the employer. The second incident involved a nine-month-old infant brought to the fire station who was not breathing. The claimant’s mental health symptoms from the first incident worsened after the second, and the claimant filed a Claim Petition, alleging he sustained post-traumatic stress disorder (PTSD). The workers’ compensation judge dismissed the petition, finding that administering CPR was not an abnormal working condition. The Appeal Board affirmed, but the Commonwealth Court reversed, holding that the incidents collectively were a singular, extraordinary event and, thus, constituted an abnormal working condition. 


What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Court Reaffirms That Actual Cash Value Includes Labor and Overhead, Not Just Materials

Greenaker v. Universal Prop. & Cas. Ins. Co., Case No. 2D2024-1964, (Fla. 2nd DCA May 8, 2026). The plaintiffs filed a breach of contract suit against Universal for refusal to pay for all of plaintiffs’ damages from a storm in November 2020. Universal filed a motion in limine to prevent the plaintiffs from introducing evidence concerning both actual cash value and replacement cost value of the loss. They argued that the plaintiffs did not complete repairs or incur any expenses in repairing the damaged property, thus being limited to actual cash value as their measure of damage and the plaintiffs’ submitted estimate of damages contained labor costs necessary for repair and, therefore, not an actual cash value estimate. Universal further asked for a directed verdict at the hearing because the plaintiffs would have no evidence to support the claim for damages. The trial court agreed and granted Universal’s motion, entering a final judgment in Universal’s favor.  The plaintiffs filed a motion for rehearing and reconsideration due to the court improperly converting Universal’s motion in limine to a motion for final summary judgment. The court denied plaintiffs’ motion and the plaintiffs appealed. The Second District Court of Appeal agreed with the plaintiffs and determined that the trial court improperly entered a final judgment based on a pretrial ruling in limine, advising there was recognized procedures, including summary judgment, judgment on the pleadings, and default judgment that could have been exercised. Further, the court continued that the improper procedure was not the only reason for the judgment to be reversed. They noted the insurance policy did not provide a definition of actual cash value nor how to calculate it, and the parties disputed the definition and calculation of such.  Universal argued that actual cash value is defined as the value of the property that suffered the direct physical loss less depreciation and deductible, i.e. costs of physical materials that were damaged.  The plaintiffs argued that actual cash value includes the amount of repair costs in addition to the value of the property that suffered direct physical loss because it is calculated as the replacement cost minus depreciation.  The court agreed with the plaintiffs, noting that Universal’s definition was not supported by the insurance contract, the statute governing replacement value insurance contracts, nor decisional authority.  The court noted that Universal “cherry-picked” the phrase “direct physical loss” from the perils insured against provision and applied it to the loss settlement provision, which doesn’t state “direct physical loss,” but instead states “insured loss.”  Further, the court conveyed that application of “direct physical loss” would be used on both actual cash value and replacement cost value, as they are both present in the loss settlement provision, which would mean insureds never got payments beyond costs of physically damaged material, which is contradictory to the replacement cost value definition.  The court advised that the Florida Supreme Court had approved the court’s interpretation of actual cash value as including costs other than damaged physical property, including overhead and profit, noting that these costs can be included in actual cash value to which a portion, like all other costs, could be depreciated. The court noted the difference between actual cash value and replacement cost value is not between types of costs, i.e. materials vs. labor, but between the valuation of the costs with the distinction of being a depreciated vs. undepreciated value. The court refused to exclude intangible costs such as labor, profit and overhead from actual cash value, finding these costs inclusions were consistent with statutory and contractual language as well as Florida Supreme Court precedent. The court reversed the judgment and remanded the case back to the trial court.

Thought Leadership

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.