Opposition to MSJ Requires Rebuttal Evidence, not just Rebuttal Allegations (PA)

American Southern Insurance Company, Inc. was victorious recently when its summary judgment decision regarding a contractual indemnification dispute was upheld on appeal. In American Southern Ins. Co. v. James A. Halbert , et al., PA Superior Court, No. 504 MDA 2018, the Pennsyvlania Superior Court upheld the trial court’s granting of summary judgment in favor of American Southern.

The underlying case involved a performance surety bond for public improvement in North Cornwall Township, PA.  Back in 2006, American Southern had entered into an indemnity agreement with the Halbert family (on behalf of the Oaklea Corporation) wherein the Halberts agreed to indemnify American Southern from any claim or liability arising from the issuance of a performance bond.  Subsequently, American Southern issued a performance bond in favor of North Cornwall Township to secure completion of improvements for local development by the Oaklea Corporation.  In July 2016, the Township informed American Southern that Oaklea refused to respond or perform certain improvements that were demanded by the Township.  The Township demanded compensation from American Southern, who in turn, demanded indemnification from the Halberts.  The Halberts responded that the improvements demanded by the Township were unnecessary.

In October 2017, American Southern moved for summary judgment asserting that there were no genuine issues of material fact in dispute and that American Southern was entitled to indemnification against the Halberts, as a matter of law.  In response, the Halberts cited their Answer and defense that the improvements were unnecessary and also argued that the indemnification agreement was an unconscionable contract of adhesion.  The trial court concluded that Halbert failed to show that the improvements were unnecessary and that the agreement was not a contract of adhesion. The Halberts appealed.

On appeal, the Superior Court explained that the Pennsylvania rules governing summary judgment explicitly prohibit a non-moving party from merely relying on the allegations or denials of the pleadings, thus rendering the Halberts’ position deficient.  The Halberts conceded that an operative provision of the indemnification agreement granted American Southern the exclusive right to determine whether claims such as the ones brought by the Township should be settled or defended; thereby nullifying Halberts’ repeated defense that the demanded improvements were not necessary.  Furthermore, while the court entertained the Halberts affirmative defense that the indemnification agreement was a contract of adhesion, it concluded that the Halberts failed to cite to any evidence detailing the circumstances that would support their assertion that the contract was, in fact, a contract of adhesion.

Ultimately, the Superior Court denied the Halberts appeal and affirmed the granting of summary judgment in favor of American Southern, emphasizing the Halberts’ failure to cite evidence of record that would support their claims.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)

The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums.  This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.

Decedent was allegedly injured when he fell on the stairs at defendant’s premises.  His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.

Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident.  The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.

It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident.  When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice.  As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action.   Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Forman Decision Cited by First Department in Allowing Defendant’s Expert Access to Plaintiff’s Social Media (NY)

Last year, Wade Clark Mulcahy won a significant victory, both for our client and for the defense bar in general, in Forman v. Henkin In a unanimous reversal of the underlying First Department decision, the Court of Appeals held that a plaintiff’s social media posts are discoverable, so long as the defendant demonstrates some need for the materials therein.  The Court of Appeals held that social media relevancy trumps privacy interests, which thereby created new law in New York, and a new means for defendants to gauge plaintiffs’ damages claims.

Since the Forman decision in February 2018, we have been keeping tabs on how the various appellate divisions have been applying the new law.   Last week, the First Department not only followed Forman, but actually broadened a defendant’s rights, in Vasquez-Santos v Mathew.  The plaintiff in that case claimed an injury, and defense counsel became aware of photos of plaintiff playing basketball, which were posted on social media after the accident.  Plaintiff testified that even though the photos were posted after the accident, they had actually been taken before the accident, and therefore, were not relevant to damages.

Defense counsel wasn’t buying plaintiff’s account, and although counsel’s motion to compel was denied at the trial level, the First Department wasn’t buying it either.  The First. Department unanimously reversed the trial court, citing cited Forman in its decision.   The Court took the additional step of granting defendant access, through a third-party data-mining company, to plaintiff’s devices, email accounts, and social media accounts, to assist in defendant’s damages evaluation.

The fact that Forman is being followed and even broadened — particularly by the First Department — is welcome news for the defense bar, and illustrates the significance of WCM’s victory at the Court of Appeals last year.  Please call Mike Bono or Brian Gibbons with any questions about the Forman decision, and its impact on personal injury litigation.

Self-Destructive Selfies (NY)

Defense attorneys have increasingly turned to social media  to defend against exaggerated claims of personal injuries. In Smith v. Brown, 2018 NY Slip Op 28299, the plaintiff commenced an action in Supreme Court, Bronx County, to recover for personal injuries allegedly sustained in a motor vehicle accident.

At the discovery stage, one of the defendants served plaintiff with a notice to admit, seeking to admit: (1) whether plaintiff owns and maintains an Instagram account with a specific “handle”; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs obtained from the Instagram account — and whether those photographs were taken after the accident. Defendant served copies of each of the 33 photographs for which admissions were sought along with the notice. The photographs appeared to depict a young woman (presumably the plaintiff), engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk.

Plaintiff filed a motion seeking a protective order to vacate or strike the notice to admit arguing that defendant was attempting, impermissibly, to use the notice to admit in lieu of other disclosure devices, such as a deposition. Plaintiff also argued that the notice to admit was improper because it sought admissions on material issues in the litigation. Defendant opposed the motion, arguing that the admissions sought in the notice to admit were relevant to the issue of the extent of plaintiff’s damages, and not to any ultimate questions of fact or any legal conclusions.

The Court agreed with defendant, and plaintiff’s motion was denied. The Court ultimately held that the notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, those matters on which defendant sought admissions could be explored at a deposition and were thus within the proper scope of a notice to admit.

Social Media is now, much like post-deposition surveillance, a valuable tool in gauging a plaintiff’s credibility, and also, mitigating a future pain and suffering claim.   Thanks to Tyler Rossworn for his contribution to this post.  Please email Brian Gibbons with any questions.

Decedent’s Statements to His Wife Admissible as Hearsay Exception, Defeating Estate’s MSJ (NY)

In Caminiti v Extell West 57th Street LLC, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1st Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he “should have known better” than to use a ladder as he did.  He later died.  Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project.

Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint.  Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants.  Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections.

The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1).  The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest.  The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective.

However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly.”  Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains.  As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed.

Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions.

The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to liability.  Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased.

Thanks to Jonathan Pincus for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ High Court Moves toward Daubert

The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible.

In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease.  Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease. 

 The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven.  The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions.  It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion.

New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.”

 The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony:

  1. Whether the scientific theory can be, or at any time has been, tested;
  2. Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;
  3. Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; and
  4. Whether there does exist a general acceptance in the scientific community about the scientific theory.

Applying this standard, the Court determined that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”

Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report.  It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions.  The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination.

Thanks to Michael Noblett for his contribution to this post.


Attorney Client Privilege Under Siege in Philadelphia.

An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees.  The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).

This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly).  In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg.  The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services.  In the regular course of discovery, the defense attorney identified 16 employee fact witnesses.  He then interviewed them and took their statements.  Privileged, right?

“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege.  The Waste Services’ attorney was ordered to produce all of the interview notes and statements.

Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal.  Where the appellate court ultimately comes down remains to be seen.  But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent.  Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.

For more information about this post, please e-mail Bob at RCOSGROVE@wcmlaw.com

Plaintiff Allowed To Take Swing against City For Fall at Citi Field (NY)

In Henn v. City of New York, Sterling Mets, et. al, plaintiff allegedly sustained injuries as a result of tripping and falling upon the sidewalk abutting Citi Field on July 6, 2014. Plaintiff alleges that defendants were responsible for the maintenance of the sidewalk and created the defective condition of the sidewalk. Defendants moved to dismiss under 3211(a)(7) – failure to state a cause of action. The lower Court denied defendants’ motion to dismiss and the defendants appealed.

The Appellate Division Second Department concurred with the lower court and ruled that defendants did not reach their burden to dismiss. The sole criterion on a 3211(a)(7) motion is whether the factual allegations articulated in the four corners of the complaint itself manifest any cognizable cause of action. “When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

The Second Department held that the documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law. Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action. That the complaint alleged the ballpark defendants owned, operated, managed, maintained, or controlled the subject sidewalk upon which the plaintiff was injured was sufficient to go forward on a cause of action and the documentary evidence submitted by the ballpark defendants—a “Stadium Lease Agreement” and a “First Amendment to Stadium Lease Agreement” – was insufficient to show they did not own, operate, manage or control the subject sidewalk and therefore, was insufficient to provide a basis for dismissal under that subsection.

The case was allowed to move forward to discovery and depositions of all parties.

Thanks to Paul W. Vitale for his contribution to this post.

(Preserve) All The Evidence, Men (NY)

Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured.  But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information.  As the recent First  Department decision in Davis v. Pathmark makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous.

In Davis, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall.  The problem was that the defendant deleted all other footage from that day.  According to  the trial court and the First  Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident.  Thus, the court struck the defendant’s answer.

It may well be that the defendant in Davis acted in good faith by providing what it thought was relevant evidence.  But insureds often make poor judges of what may or may not be relevant or discoverable in litigation.  Davis should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted.  Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony

In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg.  After the accident, plaintiff’s wife told Shop-Rite she was fine, not in need of medical attention.  Four days later, however, she was transported to the hospital where she died.  The following day, a Certificate of Death was issued.  It stated the cause of death was complications of blunt trauma to the right leg.  Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand.  Instead, plaintiff sought to rely on the Certificate only.

The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation.  The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible.  The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings.

This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed.

Thanks to Michael Noblett for his contribution to this post.