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Philadelphia Report

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									                                             www.eckertseamans.com | info@eckertseamans.com | Vol. 1. No. 2




           Philadelphia Report
                   DEVELOPMENTS IN THE PHILADELPHIA COURT OF COMMON PLEAS

I N T HIS I SSUE
                   Governor Vetoes Latest Attempt to Reform Joint and
Page 2             Several Liability Law in Pennsylvania
FOUR RECENT
                        Pennsylvania Governor Edward G.                      The Fair Share Act originally arose out
CASES
                   Rendell vetoed Senate Bill 435 on March 24,          of Senate Bill 1089 which proposed DNA
INTERPRETING       2006 which sought to replace the traditional         testing for certain criminal offenders and
ASSUMPTION OF      doctrine of joint and several liability with         establishment of a DNA database. When
THE RISK           proportionate liability. While acknowledging         Senate Bill 1089 was reviewed and amended
PRINCIPLES         the need to set limits on joint and several          by the Senate and House, the Fair Share Act
                   liability, Governor Rendell vetoed Senate Bill       was added to the Bill as another amendment.
Page 3             435 because the Bill still created “unfair and       After some additional technical amendments
APPELLATE          inequitable results for both injured victims         by the Senate and with approval, on June 19,
PRACTICE IN        and businesses.”                                     2002, the House approved the bill and later
C.P. PHILA.: THE        Pennsylvania Courts traditionally have          that same day, former Governor Schweiker
IMPORTANCE OF
                   followed the joint and several liability doctrine.   signed the bill into law.
                   When two or more individuals act together or              The constitutionality of The Fair Share
COMPLYING WITH
                   whose independent acts come together to              Act was challenged in the Pennsylvania
RULE 1925(B)       cause one injury, the defendants are considered      Commonwealth Court in the matter of DeWeese
                   “joint tortfeasors.” Under Pennsylvania’s joint      v. Weaver, 2005 Pa. Commw. LEXIS 407, 880
PHILADELPHIA       and several liability doctrine, each defendant is    A.2d 54 (2005). The petitioners and intervenors,
NO LONGER A        liable for the full amount of judgment entered       members of the House of Representatives,
“JUDICIAL          in favor of plaintiff, regardless of the degree of   challenged the constitutionality of the
HELLHOLE”          fault on the part of each defendant. Obviously,      Fair Share Act by arguing, inter alia, that
                   this rule may produce an unfavorable result          incorporating the DNA Act and the Fair Share
Page 4             for a defendant who had minimal involvement          Act in the same bill violated Article 3, Section 3
COMMERCE           in the wrongful act because, despite the             of the Pennsylvania Constitution. Article 3,
COURT UPDATE
                   defendant’s minimal degree of fault, the same        Section 3 of the Constitution provides that no
                   defendant may be liable to plaintiff for the full    bill shall be passed which contains more than
                   amount of the verdict. After paying the full         one subject which shall be clearly stated in the
MORE CCP           amount of the verdict, the only recourse left for    bill’s title unless it is a general appropriation
TIDBITS            the minimally involved defendant is to pursue        bill or a bill codifying or compiling the law.
                   a contribution claim against the remaining           The respondents, sponsors of the legislation,
                   defendants, thereby incurring additional             argued, in part, there was no violation of the
                   expense.                                             Constitution because the bill was simply a part
                        In the last few years, Pennsylvania             of the “business of the courts” or “judicial
                   lawmakers attempted to significantly change          procedure” and fell within an exception to
                   the traditional way defendants are held liable       Article 3, Section 3 of the Constitution. The
                   to injured plaintiffs. On June 19, 2002, former      Commonwealth Court agreed with Petitioners
                   Pennsylvania Governor Mark Schweiker                 and struck down the Fair Share Act. An appeal
                   signed Act 57, a law known as the “Fair Share        to the Pennsylvania Supreme Court has been
                   Act” which became effective in August 2002.          filed.
                   Under the Fair Share Act, each defendant                  Meanwhile, the Legislature tried again.
                   would have been liable to plaintiff only for         In December 2005, the Pennsylvania Senate
                   their proportionate share of the judgment.           voted to restore the Fair Share Act in Senate
                   The Act did contain some important                   Bill 435 which was subsequently passed by
                   exceptions. The Act did not apply to:                the House and presented to the Governor
                   intentional torts; intentional mispresentation;      for signature. Unfortunately, while the
                   hazard substance releases; or dramshop               Legislature may have corrected the
                   liablity. The most important exception               constitutional infirmities of original Fair
                   provided that where a defendant was                  Share Act, Governor Rendell’s veto means
                   determined to be liable for 60% or more of the       proponents of joint and several liability
                   total apportioned liability, then the defendant      reform must keep waiting.
                   was still liable to plaintiff for the full amount         In his veto message, Governor Rendell
                   of the judgment.                                                                     continued on page 2
Governor Vetoes       (continued from page 1)                   informed her of the potential known and unknown risks
                                                                involved with the drug, and plaintiff had in fact signed a
acknowledged that although joint and several liability
                                                                detailed informed consent form mandated by statute in
has been the law for over 200 years, the “doctrine has
                                                                Utah. The Court reasoned that where the evidence was
produced inequitable and unfair results that have had
                                                                clear that plaintiff was aware of the specific risks inherent
a detrimental impact on businesses” and cited several
                                                                in taking the weight loss drug, but nonetheless voluntarily
examples where defendants were forced out of business
                                                                chose to take the drug in the face of those risks, plaintiff
when held responsible for paying 100% of the damages
                                                                could not seek compensation for her injuries.
awarded to plaintiffs. Governor Rendell stated that
                                                                     In Dinnien v. DinLi Metal Industrial Co., the family of
although limitations on the joint and several liability
                                                                John Dinnien, a 31-year old father, filed suit against the
doctrine are needed, the Fair Share Act failed to
                                                                manufacturer of an all-terrain vehicle, the seller and that
adequately and effectively set these limits. Governor
                                                                seller’s supplier. The family claimed the ATV had a
Rendell vetoed Senate Bill 435 “because it does not
                                                                design defect, specifically, that the rubber handlebar
effectively balance the critical needs of victims who should
                                                                grips could easily slip off the handlebars. Evidence
be adequately compensation for their injuries with the
                                                                was presented at trial that Mr. Dinnien, a union glazier,
reasonable needs of businesses to limit their exposure to
                                                                brought his ATV with him to his worksite and allowed a
liability for damages caused by other parties.” He then
                                                                co-worker to ride the vehicle. During that ride, the right
urged lawmakers, business leaders, consumer groups,
                                                                handlebar grip slipped off the ATV and the co-worker
union leaders, legal associations and other interested
                                                                lost control of the vehicle. Mr. Dinnien’s co-workers
individuals to work together in creating legislation that
                                                                replaced the handlebar grip shortly thereafter. A few
equally balances the rights, interests and needs of injured
                                                                hours later, Mr. Dinnien decided to ride the ATV despite
plaintiffs and defendants. Only time will tell whether there
                                                                the fact that his co-workers specifically warned him
will be another attempt to change the doctrine of joint and
                                                                about the handlebar grip problem. Mr. Dinnien
several liability in Pennsylvania.
                                                                nevertheless chose to ride the ATV, and during that ride
                                                                he lost control, fell and broke his leg. Witnesses did not
Four Recent Cases Interpreting                                  report any erratic driving, and were unable to confirm
Assumption of the Risk Principles                               whether the handlebar grip had slipped off prior to
                                                                Mr. Dinnien’s accident. Mr. Dinnien later died from a
     Four Philadelphia-based cases involving assumption         pulmonary embolism that evidence suggested was
of the risk principles reached varying conclusions over the     caused by the injuries sustained in the accident.
course of 2005. In the first case, the Common Pleas Court            The Dinnien case proceeded to trial in the face
of Philadelphia granted a manufacturer’s motion for             of evidence that the decedent was well aware of the
judgment notwithstanding the verdict after a jury awarded       alleged defect in the handlebar grips, and was even
plaintiff nearly a million dollars in a pharmaceutical defect   warned about that specific problem shortly before the
case. In the next case, a Philadelphia jury awarded             accident. The jurors were recharged on the assumption
millions of dollars to the family of a man who died from        of the risk doctrine after several hours of deliberation,
the injuries he received after he lost control of his all-      and later returned a verdict of $3 million dollars for the
terrain vehicle. In another, a split three-judge panel of       family of John Dinnien – more than double what was
the Superior Court upheld the Common Pleas Court of             reportedly demanded by plaintiffs prior to trial.
Philadelphia’s decision to throw out a fan’s claim for               In contrast, Loughran v. The Phillies and Marlon Byrd
damages sustained after he was hit by a ball thrown into        never reached the jury. In that case, Phillies fan Jeremy
the stands at a Phillies game. Finally, another split panel     Loughran filed suit over the injuries he sustained after
of the Superior Court reversed a trial court’s grant of         being hit by a ball thrown into the stands between innings
summary judgment, finding that it was for the jury to           by Phillies outfielder Marlon Byrd. A 2-1 panel of the
decide whether a man fully appreciated all of the dangers       Superior Court affirmed the Philadelphia Common Pleas
involved when he used a three-foot cornstalk in an              Court award of summary judgment, dismissing the claim.
attempt to dislodge a jam in a mechanized corn picker.          The Superior Court panel noted that “an operator of a
     In McMurdie v. Wyeth, plaintiff, a Utah resident, filed    place of amusement is not an insurer of his patrons and
suit in Philadelphia County alleging injury to her heart        therefore patrons will only be able to recover for injuries
after she used a weight loss drug prescribed to her by her      caused by the operator’s failure to exercise reasonable care
physician. The jury returned a verdict in favor of plaintiff    in the construction, maintenance, and management of the
in the amount of $780,000. Defendant manufacturer filed         facility.” As a result, the Pennsylvania “no duty” rule bars
post-verdict motions, maintaining that plaintiff’s claims       a plaintiff’s claim for injuries sustained as a result of all
were barred based on assumption of risk principles. The         common, frequent and expected risks inherent to the
Philadelphia Court of Common Pleas agreed with the              activity in question. The Superior Court panel found that
manufacturer and held, based on the specific facts in the       Mr. Loughran did not present sufficient evidence that a
case, that plaintiff could not recover where she had chosen     player’s act of throwing a ball into the stands between
to take the weight loss drug with full knowledge of the         innings deviated in any relevant aspect from the
known risk of serious heart injury that could occur.            established customs of a baseball game. The panel rejected
     The Court cited ample evidence that plaintiff              Mr. Loughran’s argument that a player throwing a ball
knowingly and voluntarily assumed the risk of serious           into the stands between innings was neither expected nor
heart damage. It noted that testimony of the prescribing        even part of the game itself. Instead, the panel chose to
physician and the plaintiff herself showed plaintiff knew       consider such an activity a customary part of attending a
her physician had prescribed the drug as an off-label use,      baseball game, even if that particular act was not officially
that there was no question plaintiff’s physician had fully      sanctioned by Major League Baseball regulations. The
2
panel held that Mr. Loughran failed to establish that Mr.        strictly construed this Rule, recommending that an
Byrd or the Phillies deviated from the common and expected       appeal be dismissed for the appellant’s failure to serve
practices of a professional baseball game.                       upon the trial judge its statement of matters complained
     The dissent argued that there is a clear difference         of on appeal. In Flagiello v. Genuardi’s Supermarket, et al.,
between a gratuitously thrown baseball and one hit by a          2005 Phila. Ct. Com. Pl. LEXIS 503 (Nov. 1, 2005), the
batter or thrown unintentionally into the stands while the       trial court sustained Genuardi’s objection to venue and
game is in play. It was the dissent’s position that a fan        transferred the matter to Chester County. A timely
cannot be expected to assume the risk of being struck by a       appealed followed.
ball thrown intentionally into the stands while the game is           Appellants were directed to file of record and serve
not in session.                                                  on the trial court a statement of matters complained of on
     Finally, in Hadar v. Avco Corp., 886 A.2d 225 (Pa. Super.   appeal pursuant to Rule 1925(b). While the appellants
2005), a 2-1 Superior Court panel ruled that a plaintiff did     filed their statement with the Prothonotary’s office, they
not assume the risk of his injury when he used a 3-foot          failed to serve a copy on the trial court. The trial court
cornstalk in an attempt to clear the jammed husking rollers      recommended that the appeal be quashed for failure to
of a mechanized corn picker. In that case, Charles Hadar         adhere to Rule 1925(b), observing that “‘[t]he notice
filed suit against the manufacturer and seller of the corn       requirement of Rule 1925(b) imposes waiver consequences
picker, claiming negligence and design defects. Mr. Hadar        upon an Appellant who fails to serve the trial court with a
had been using the corn picker for less than an hour when        statement of matters complained of on appeal.’” Flagiello,
the machinery experienced problems. He observed that             2005 Phila. Ct. Com. Pl. LEXIS, at *5, (quoting Forest
corncobs had created a jam between the wagon and corn            Highlands Community Assoc. v. Hammer, 2005 PA Super 235,
picker, and attempted to dislodge that jam using a 3-foot        879 A.2d 223 (Pa. Super. 2005)).
cornstalk. Mr. Hadar asserted that at all times he believed           Parties contemplating filing an appeal in
that he was taking adequate safety precautions by using the      Philadelphia should heed the direction of Rule 1925(b).
cornstalk to dislodge the jam, instead of placing his bare       Failure to do so could result in a waiver of all
hand near the machine. Unfortunately, the cornstalk              arguments for appellate review.
became entangled, and Mr. Hadar was unable to loosen his
grip before the husking rollers drew the cornstalk – and his
hand – into the machine.                                         Philadelphia No Longer
     At the trial court level, a Westmoreland County judge       A “Judicial Hellhole”
granted summary judgment in favor of the manufacturer                 The 2005 Report of American Tort Reform
and seller of the corn picker, holding that Mr. Hadar had        Association has been published, and Philadelphia is
assumed the risk of his injury by using the cornstalk to         no longer a “Judicial Hellhole.” Leaving the company
dislodge the jammed corncobs. The Superior Court panel           of places like Madison County, Illinois, The City of
reversed, holding that while the plaintiff may have              Brotherly Love has been graduated to the “Watch List”
appreciated the general risk of harm that could occur if he      for the coming year. Presumably, that’s the equivalent
had placed his hand near the husking rollers, the evidence       of being moved from “critical” to “guarded” condition.
confirmed that he did not fully appreciate the specific risk     In any event, it’s an improvement.
that he would not be able to withdraw his hand from the               Philadelphia had been listed as a “hellhole” for the
cornstalk before it was fully drawn into the corn picker.        last two years, primarily as a result of the large number
The panel held that where it was not clear on the record         of medical malpractice suits filed here and the large
that Mr. Hadar had fully accepted all dangers associated         verdicts those cases have received. Driven, at least
with working near the corn picker, an assumption of the          in part, by the distinction of being identified as a
risk defense would not apply. The case was remanded for          “hellhole” and an organized and highly visible effort
further proceedings.                                             by state medical associations, Pennsylvania adopted a
                                                                 series of reforms in the last few years designed to
Appellate Practice in C.P. Phila.:                               reduce the number of medical malpractice suits and to
                                                                 funnel them away from Philadelphia to the counties
The Importance of Complying With                                 where the alleged malpractice occurred. Those reforms
Rule 1925(b)                                                     have apparently paid off. The number of medical
    Pennsylvania Rule of Appellate Procedure 1925                malpractice filings in Philadelphia is down as are the
governs opinions authored by the trial judge who entered         number of large verdicts in those cases. It is that trend
the order from which a party appeals. The Rule provides          which has moved Philadelphia out of the judicial ICU.
that an opinion be written by the trial judge who entered             The news from the Association was not all good,
the order and that the opinion be filed of record in the         however. The Report noted with concern the size of
matter being appealed. Pa. R. App. P. 1925(a).                   recent verdicts in a number of areas. It remains to be
    The Rule also permits the trial court to direct the          seen if the improvements wrought in the medical
appellant “to file of record in the lower court and serve        malpractice arena will be equaled in other types of
on the trial judge” a concise statement of the matters           cases. Interestingly, The Report also placed
complained of on the appeal. Pa. R. App. P. 1925(b)              Philadelphia’s neighbor, Delaware, on the watch list.
(emphasis added). The Rule further provides that failure         The Diamond State made the list as a result of the
to comply with such direction “may be considered by the          increasing interest shown by plaintiff lawyers in the
appellate court as a waiver of all objections to the order,      Delaware state courts. Over the last year there has been
ruling or other matter complained of.” Id.                       a large influx of asbestos and benzene cases filed in
    Recently, the Philadelphia Court of Common Pleas             Delaware state courts by out of state plaintiffs.

                                                                                                                            3
Commerce Court Update                                                    Pennsylvania Wal-Mart employees who contend that they
                                                                         were not compensated for rest and meal breaks they
     In early December 2005, C. Darnell Jones II, who was                allegedly missed over the course of the past seven years.
one of three judges in The Commerce Case Management                      More recently, Judge Bernstein ruled that class-litigation-
Program of the Philadelphia County Court of Common                       preclusion clauses in contracts of adhesion are
Pleas (“Commerce Program”), was elected as President                     “unconscionable and unenforceable,” serving to “immunize
Judge of the First Judicial District. As a result of his                 large corporations from liability by allowing them to
election, Administrative Judge James Fitzgerald selected                 preclude all class action litigation.” On the other hand,
Judge Mark I. Bernstein to replace Judge Jones.                          Judge Bernstein garnered national attention after rescinding
Administrative Judge Fitzgerald made this selection with                 a $1.4 million verdict against Fen-Phen drug maker Wyeth.
feedback from Pennsylvania Supreme Court Justice Sandra                       Judge Bernstein was elected to the bench in 1987 and
Schultz Newman, the liaison Justice to the Philadelphia                  served approximately six years in the criminal branch
courts, and Judge William Manfredi, supervisor of the                    before moving to the civil branch. He received his law
court’s civil section, and after considering several other               degree from the University of Pennsylvania in 1973. After
applicants for the sought-after position. Judge Fitzgerald               graduation, Judge Bernstein worked with the Defender
also took into account letters, written by a number of                   Association of Philadelphia before beginning private
attorneys who regularly handle cases in the Commerce                     practice, focusing on civil litigation. His private-practice
Program, requesting that Judge Bernstein by selected as                  experience includes seven years spent with the law firm
Judge Jones’ successor.                                                  which became Fineman & Bach, a litigation boutique
     Judge Bernstein is a veteran of the Philadelphia                    organized by Eckert Seamans’ Mitchell L. Bach, who was
Common Pleas civil branch who, for the past two years,                   later instrumental in the creation of the Commerce
has been in charge of class actions filed in the city court              Program as Co-Chair of the Philadelphia Bar Association’s
system. At the time of his selection, Judge Bernstein was                Business Litigation Committee.
responsible for roughly eighty class action matters that
have been filed in Philadelphia. A Los Angeles-based legal               More CCP Tidbits
website, LawDragon.com, named Judge Bernstein in its
recent “500 Leading Judges in America,” which included
                                                                         Machine Operator Awarded $20,000,000;
federal and state judges, as well as private judges,                     Jury Verdict Reduced on Post-trial Motion
arbitrators and mediators and was based upon more than                        On December 15, 2005, a female machine operator was
20,000 lawyer nominations and the judges’ significant                    awarded what is reputed to be the largest verdict of 2005.
contributions to the legal community.                                    The plaintiff had her right arm crushed against the machine
     In comments to Philadelphia’s The Legal Intelligencer,              she was operating and a forklift being used to feed the
Justice Newman described Judge Bernstein as a “brilliant                 machine. She claimed that he machine was defectively
judge who moves cases quickly, in spite of their difficulty.”            designed because the controls she was operating were
Gene Cohen, a former Commerce Program judge,                             unguarded and located at a position susceptible to being hit
commented that Judge Bernstein is “probably one of the                   by forklifts used to feed the machine. She claimed that the
most thoughtful and scholarly judges on the court.”                      accident rendered her arm essentially useless. The jury
     A review performed by The Legal Intelligencer indicated             rejected the defense contention that the accident was solely
that Judge Bernstein “declines to certify groups of plaintiffs as        caused by the negligence of plaintiff’s co-worker operating
classes as often as he allows them to go forward as classes.”            the forklift. On post-trial motion, the Trial Court remitted
In two recent decisions, however, Judge Bernstein ruled                  the jury award to $3.75 million based on the lack of future
against large corporations and in favor of consumers.                    wage losses and the relatively limited damages for medical
In a December 27, 2005 opinion, he certified as a class all              care and lost wages.

  Contributors to This Issue                                             Contacts
  Brad P. Bender                                                         Business Litigation
  bbender@eckertseamans.com                                                Mitchell L. Bach
  Albert G. Bixler                                                         mbach@eckertseamans.com
  abixler@eckertseamans.com                                              Mass Tort/Class Action
  Heather R. Fine                                                          Albert G. Bixler
  hfine@eckertseamans.com                                                  abixler@eckertseamans.com
                                                                         Product Liability/Civil Litigation
  Anita J. Murray
                                                                            Edward A. Gray
  amurray@eckertseamans.com
                                                                            egray@eckertseamans.com
  Rachel Castillo Rosser
                                                                            Dennis P. Ziemba
  rrosser@eckertseamans.com
                                                                            dziemba@eckertseamans.com


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