Andre J. Webb served as Program-Chair of ALFA International’s 2022 Future Leaders Forum Seminar held at the Omni Hotel in Louisville September 21-22nd. Entitled “A Peek Behind the Curtain: See the Future of Our Legal Practice,” the conference featured ALFA International member firm attorneys and clients from a wide range of companies and corporations speaking on many topics with a forward-focused lens, homing in on areas such as the future of litigation, the future lawyer’s toolbox, how to keep future lawsuits from spinning out of control and preparing a client for a 30(b)(6) deposition. For more information, please reach out to Mr. Webb at email@example.com.
Matthew McColgan will present at the ALFA International’s 2022 Future Leaders Forum Seminar on Thursday, September 22, 2022. The presentation is entitled “The Future Lawyer’s Toolbox,” the program will look at how we, as a practice, have utilized the recent technological developments to achieve success in defending and advocating for our clients. The program will also explore what the future generation of practitioners should aim to master to support their position at trial as plaintiff and defense tactics advance and evolve. For more information, please reach out Mr. McColgan at firstname.lastname@example.org.
Matthew McColgan and Francis Bovio Successfully Obtained the Dismissal of a National Transportation Client Following a Motion to Dismiss in the Philadelphia County Court of Common Pleas
Highlighting a recent trend in federal courthouses that have applied the principle, Matthew and Francis argued that duplicative claims of an employer-defendant’s negligent entrustment, supervision, and training (“NEST claims”) should not stand for trial when the employer-defendant has admitted in responsive pleadings that the employee-defendant was acting within the course and scope of employment at the time of the alleged negligent conduct. The Court’s holding precludes an employer-defendant from appearing on a verdict sheet, leaving only the alleged negligence of the employee-defendant to be assessed by a fact finder. This outcome continues the development of the defense in commercial vehicle accident cases in an effort to manage inflammatory jury verdicts and minimizing the company’s potential exposure to duplicate and redundant claims.
On August 25, 2022, the Supreme Court of Pennsylvania, upon recommendation of the Civil Procedural Rules Committee, issued an Order amending the Pennsylvania Rules of Civil Procedure related to venue. Most significantly, the amendments remove the rule that required medical malpractice cases to be filed in a county where the cause of action arose. The Order also suspends the statutory venue provision in the MCARE Act. The committee’s Adoption Report contains a synopsis of its reasons for recommending an end to the venue limitation on medical malpractice cases.
Under the amended Rule 1006, an action against an individual may be brought “in a county where: (1) the individual may be served; (2) the cause of action arose; (3) a transaction or occurrence took place out of which the cause of action arose; (4) venue is authorized by law; or (5) the property or part of the property, which is the subject matter of the action, is located provided that equitable relief is sought with respect to the property.” As before, an action may be brought against all defendants in any county in which venue is proper as to any one defendant; the exception for medical malpractice cases was removed. The prior restriction for medical malpractice cases was similarly removed from the venue rules pertaining to partnerships (Rule 2130), unincorporated associations (Rule 2156), and corporations (Rule 2179).
The amended Rule 1006 maintains the provisions for transferring venue for the convenience of the parties and witnesses (Rule 1006(d)), and the requirement to raise improper venue by preliminary objection (Rule 1006(e)). New subsection (g) of the amended rule requires the Civil Procedural Rules Committee to reexamine the amendments two years after the effective date.
The amendments take effect January 1, 2023. A copy of the Order, amendments, and committee’s report can be found here. In light of the new rules, healthcare defendants should evaluate all complaints filed on or after January 1, 2023 to determine if venue should be challenged through preliminary objections and/or a motion to dismiss based on forum non conveniens.
On August 22, 2022, Jacqueline Schneiders and Jack Shusted obtained a defense verdict on behalf of their client, a radiologist, after a four-day trial in the Court of Common Pleas of Montgomery County in Norristown, Pennsylvania.
Plaintiff claimed that the radiologist failed to identify a fibula fracture on an x-ray and to recommend further imaging studies. Several weeks later, Plaintiff was found to have a displaced, comminuted fibula fracture. Post-surgery healing was delayed for several years due to nonunion.
Mrs. Schneiders and Mr. Shusted showed the jury how the radiologist met the standard of care in reading and reporting on the x-ray, and that there was no causal connection to the subsequent displaced fracture.
GGM is proud to announce that Yana N. Shapiro has been selected to The Best Lawyers in America, and Andre J. Webb has been named to The Best Lawyers in America: Ones to Watch.
The Best Lawyers in America recognizes the top four percent of practicing attorneys in the nation and is based on confidential client and peer evaluations, as well as extensive editorial research. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. For more information, please visit https://www.bestlawyers.com.
NJ Appellate Division Determines that Employment Separation Agreement does not Constitute Payment for Disputed Workers’ Compensation Claim filed Outside Two Year Statute of Limitations
In the case of Donald Servais v. Ocean Wholesale Nursery, LLC., A-2988-20, (App. Div. July 14, 2022), the legal question presented was whether a Separation Agreement constituted a payment for a contested workers’ compensation case. In this matter, Petitioner alleged that he suffered an amputation of three fingers on his right hand while at work on January 26, 2016. Petitioner failed to file a workers’ compensation claim within the two-year statutory limitations period. Additionally, Respondent never paid Petitioner any temporary disability benefits as Respondent believed the injury happened while Petitioner was at home. Further, Respondent disputed the employee relationship with Petitioner as he was hired as a consultant rather than an employee. On October 26, 2018, Petitioner filed a formal claim petition. The claim was denied, and Respondent filed a motion to dismiss the claim petition. Petitioner argued that under a January 31, 2017 Employment Separation Agreement, Respondent paid Petitioner $5,000.00 to resolve their business relationship. Petitioner argued that at least part of this payment was for the loss of his fingers; therefore, the claim petition was timely filed from the date of separation agreement.
The issue was litigated and the Compensation Judge determined that Petitioner was in fact an employee and that Section 7 of the Separation Agreement was ambiguous. Despite there being no mention in the Agreement of Petitioner’s injury to his fingers, the Judge found that the Separation Agreement included any and all claims, including the loss of fingers, and apportioned $1,000.00 of the $5,000.00 paid under the separation agreement to the injury to the fingers. Therefore, a judgment was entered in favor of Petitioner. Respondent then appealed the decision. The Appellate Division ultimately reversed in favor of the Respondent. The Appellate Division determined that the language of the Agreement expressly excluded Petitioner’s workers’ compensation claim, stating:
“Paragraphs five and six of the Agreement would not reasonably lead a person to believe that the $5,000 payment under the Agreement was also a partial payment for his work-related injury because paragraph seven of the Agreement, clearly entitled in bold ‘Exceptions,’ expressly stated that the release in the Agreement did not ‘affect or limit’ his right to receive benefits for occupational injury under the Workers’ Compensation Law.”
The Appellate Division therefore held that Petitioner failed to file his claim petition in timely manner. It reversed the Order denying Respondent’s motion to dismiss and vacated the final judgment.
On July 20, 2022, Jack Shusted and Garrett Field obtained a unanimous defense verdict on behalf of their clients, a radiologist and radiology practice, after an eight-day trial in the Lackawanna County Court of Common Pleas in Scranton, Pennsylvania.
The trial centered on Plaintiff’s allegations that the radiologist failed to identify a pancreatic head mass on a MRI. The defense maintained that the radiologist interpreted the MRI and reported the findings in accordance with radiological standards of care. Mr. Shusted and Mr. Field were able to demonstrate that the radiologist’s MRI report met all standards of care and that no action or inaction on the radiologist’s part caused the Plaintiff’s injury.
The Workers’ Compensation Appeal Board recently amended its rules in a way that will significantly change appellate practice before the Board. The new rules take effect July 11, 2022 and should significantly expedite the resolution of appeals to the Board. However, because the changes to the rules are so significant, workers’ compensation practitioners should be wary regarding certain pitfalls regarding the new deadlines contained in the updated rules. There are two significant changes: expansion of virtual hearings and changes to the timing for submission of parties’ briefs.
Currently, a party appealing a decision from a Workers’ Compensation Judge has 20 days to file an appeal. Once the appeal is received, a hearing is scheduled for a hearing at which the appellant’s brief will be due. The Board schedules hearing dates at a number of locations throughout the Commonwealth and travels as a body to each location to hear cases, once per month at each site. After the hearing his held, the appellee then has 30 days after the hearing date. Under this current system, it takes an average of 72 days after the appeal to hold a hearing and 102 days to have the appeal submitted for decision. Appeals are taking over 180 days after a Judge’s decision to resolve.
Cosmetically, the new rules change the designation of the parties to Petitioner and Respondent from Appellant and Appellee.
The new rules change this in several important ways. First, the Board now has explicit authority to conduct hearings via teleconference and is changing its schedule and practice to take advantage. Traditional in-person hearings will now be held only every other month in each location. Virtual hearings will be held much more frequently and will be accessible regardless of the parties’ location. The Board’s previous practice of “riding circuit” around the Commonwealth and hearing only cases from a specific area on each day will be curtailed. Virtual hearings will allow the Board to hear cases from anywhere, on a first come, first served basis. The Board expects this will result in significant savings of both time and money in holding hearings.
Parties can still choose an in-person hearing, and in the event of a conflict between the parties over holding a hearing in person or virtually, an in-person hearing will be the default. In addition, disfigurement cases will always be held in-person.
More significantly, there will be changes to how the Board accepts the Parties briefs and the deadline for submission of those briefs. As it stands now, a Petitioner/Appellant has until the date of the hearing to submit its brief, currently running to an average of 72 days. Under the new rules, the brief will be due before the hearing, 30 days after the appeal is accepted by the Board. Thus, the Petitioner must be ready with its brief well in advance of the hearing and about 40 days earlier than current practice.
The Respondent must also submit its brief prior to the hearing date, now 30 days after the Petitioner’s brief is submitted. Note that this is a floating deadline – the Respondent’s due date will depend on submission of the Petitioner’s brief. Once Petitioner submits, Respondent’s clock to submit its brief starts ticking. This shifting deadline may prove a trap for unwary or inattentive counsel who calculate the deadline from the due date of their opponent’s brief.
The Board is shifting to hard deadlines through WCAIS as well. Parties will not be able to submit a brief past the due date and will be locked out of submitting briefs in WCAIS. Extensions can be requested, but only prior to the due date. Parties will be unable to request a last-minute extension via WCAIS on the due date of the brief.
Cases with cross appeals will generate duplicate briefing schedules. With each party having the briefing schedule of both a Petitioner and Respondent, with the deadlines appropriate to each. Parties may submit separate briefs on the cross appeals or waive briefs on one and submit a consolidated brief for both.
These changes should speed up the resolution of appeals before the Board. Instead of having 70 to 100 days before an appeal is fully submitted, briefs should now be submitted no more than 60 days from when the appeal is filed. Increased virtual hearings should also result in more efficiency and earlier hearing dates, meaning appeals to the Board should be resolved much earlier than they are now. How much remains to be seen, but the judicial economy of the new practice seems obvious.
The new rules also require submission of a one page summary of argument separate from the brief itself. This summary can be either uploaded by itself or copied into a provided box in WCAIS when the brief is submitted. In addition, when the brief is submitted via WCAIS, the party must choose its hearing preference, either virtual or in-person. Waiving oral argument is also an option.
These changes are effective July 11, 2022 and are some of the most extensive in the Workers’ Compensation Appeal Board’s 50 year history. While there will be undoubtedly be some issues and growing pains with the new practice, they should work to shorten appellate decision times and provide parties with additional certainty and review of Judges’ decisions.
Jacob Lehman served as Co-Chair of ALFA International’s 2022 Insurance and Professional Liability Seminar held at the Logan Hotel in Philadelphia June 22-24th. Entitled “In the Eye of the Beholder: Viewing Professional Liability and Insurance Issues from Modern Perspectives” the conference featured ALFA International member firm attorneys and clients from a wide range of insurance companies and corporations speaking on a variety of timely topics in the insurance and professional liability fields. For more information please reach out to Mr. Lehman at email@example.com.