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Jury Pools & Selection Strategy Post Covid-19

The COVID-19 pandemic led to the shutdown of a large portion of our country. The psychological impact of quarantine is wide-ranging, substantial, and can be long-lasting.

Download Jury Pools & Selection Strategy (PDF)

Jacob Lehman Presents Webinar on Hot Topics in Professional Liability Litigation

As part of ALFA International’s Summer CLE Webinar Series, GGM Partner Jacob Lehman recently teamed up with Jeff Hengeveld of the Detroit, Michigan ALFA firm, Plunkett Cooney, and Todd Lubben of the St. Louis firm, Brown & James to deliver a presentation entitled “Updates On Professional Liability Law: What You May Have Missed With Everything Going On”.

The hour-long talk given on September 30^th covered recent updates in professional liability law including claims against attorneys, insurance professionals, director and offices and others. The webinar is recorded and persons interested in obtaining a copy may reach out to Mr. Lehman at lehmanj@ggmfirm.com.

Deceased Workers’ Suit Unlikely to Overcome Exclusivity Provisions of the Act

The ongoing COVID-19 pandemic has caused over one hundred and fifty thousand deaths in the United States and brought with it widespread disruption to all aspects of American life.  Large-scale quarantines, business closures and moves to remote work have all been instituted in order halt the spread of the disease amongst workers.  Employers that do remain open have taken steps to protect employees and the public from exposure to COVID-19 through use of PPE and reconfiguration of workplaces.

COVID-19 may result in compensable injury under the Pennsylvania Workers’ Compensation Act.  Proof may be difficult to come by – an injured worker will need to be able to show the disease was contracted at work.  This may be difficult given the prevalence of the disease, its ease of spread and the possibility of asymptomatic carriers.  However, COVID-19 is clearly compensable as an occupational disease under the Act.  See, 77 P.S. § 27.1(n).

Recently, the family of a deceased employee of a meatpacking plant in Philadelphia filed suit against his employer, alleging the employer’s failure to take proper precautions or close the facility lead to the employee’s fatal COVID-19 infection.  See, Estate of Benjamin v. JBS, Case Id# 200500370 (Philadelphia Ct.Cm.Pleas.).  However, the suit is likely to be barred by the employer’s workers’ compensation immunity found in Section 303 of the Act.  77 P.S. § 481.

The case involves the death of Enock Benjamin, an employee at JBS USA Food Company’s Souderton plant.  Mr. Benjamin died of respiratory failure brought on by COVID-19 on April 3, 2020.  The suit alleges that JBS failed to provide proper precautions to prevent the spread of COVID-19, leading to the decedent’s contracting COVID-19 and his eventual death.  The plant at which Mr. Benjamin worked had several confirmed cases of COVID-10 and was shut down March 30, 2020, but eventually reopened.  The suit alleges several causes of action, including negligence, wrongful death, fraudulent misrepresentation and intentional misrepresentation.

Section 303 provides almost complete immunity for employers against suits stemming from workplace injuries.  In exchange, described as the “grand bargain” of workers’ compensation law, employees need only show a causal relationship between the disability and employment.  This lower standard obviates the need to show negligence or any other tort.

There are certain very narrow exceptions to this immunity.  Most relevant to the present suit is the intentional fraud exception found in Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992).  The facts of Lancaster Battery involved an egregious course of willful deception by the employer.  The employer had a testing program to monitor lead exposure in its employees.  The employer first withheld, then fraudulently altered, the test results for the claimant.  This fraud kept the employee from seeking transfer away from lead-exposed parts of the job and from seeking potential medical treatment to alleviate the exposure, leading him to become much more seriously ill.  The Pennsylvania Supreme Court allowed the employee’s suit to proceed on the theory that damages at issue were not those of the work injury itself, but from the aggravation of the injury caused by the employer’s lies.  That took the dispute out of the Section 303 immunity.

Subsequent cases declined to expand the exception beyond the willful fraud found in Lancaster Battery.  In an especially relevant case, Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333 (Pa.Super. 2012), the Superior Court held that the lack of adequate safety measures was insufficient to establish an exception to Section 303.  The claims in the Benjamin case amount largely to a failure to enact proper safety protocols and cite the employer’s failure to adhere to OSHA guidance as proof of wrongdoing.  This is likely not enough for the suit to clear the workers’ compensation bar – failure to enact a proper procedure, even in a clearly negligent manner, still falls under the Section 303 immunity.  Only an intentional fraud that leads to injury can clear the immunity bar.

Andre J. Webb authors article on Effectuating Lasting Change

Andre J. Webb, a member of the Firm’s Casualty Litigation Group, recently authored an article titled “Effectuating Lasting Change” which highlights the importance of this moment in time for our associations and leaders.

“As attorneys, our success is measured largely by the differences we make in the lives of others. The events of this year have made clear that change is necessary. With renewed focus, each of us can seize this opportunity to reshape our communities and effectuate lasting change.”

Click here to read the article.

The New Normal and Work from Home Injuries

The worldwide COVID-19 pandemic has radically altered how many Americans work.  Many businesses have shifted to work-from-home arrangements for their employees whenever possible.  The move toward remote work has several implications for workers’ compensation and workplace injuries.

Employers should note that even if an employee is working at home, the employee is able to sustain a work injury and make a claim the same as if they were working in  the employer’s premises.  It is not the employer’s control of the workplace that matters but the control of the employee that governs whether someone sustains a work injury for purposes of the Pennsylvania Workers’ Compensation Act.

The most basic element of workers’ compensation law is that compensable work injuries must be sustained in the course and scope of employment.  Under Pennsylvania’s law there are two general situations that place an employee in the course and scope.  The first is when the employee is engaged in furthering the employer’s business.  This can be both on and off the employer’s premises.  The second is when , despite not engaged in furthering the business of the employer, the employees is required to be present at the employer’s premises by the job and sustains an injury through a condition of the premises or by operation of the employer’s business there.  Both situations can be found in work-from-home situations.

An employee injured while actively working at home is covered by the Act and has sustained a compensable work injury.  If the employee is actively furthering the job, he or she is within the scope of employment, regardless of location.  WCAB (Slaugenhapt) v. United States Steel Corp., 376 A.2d 271, 273 (Pa.Cmwlth. 1977).

This is true even if the employee takes a momentary break from work to attend to personal needs, under what is termed the “personal comfort doctrine.”  A short break to eat food, use the toilet or attend some other personal errand does not pull the home-working employee out of the scope of their employment.   In the case of Verizon Pennsylvania, Inc. v. WCAB (Alston), 900 A.2d 440 (Pa.Cmwlth. 2006), the employee, who was working from a home office, received a telephone call from her boss while getting a drink in her kitchen.  The employee was returning to the office to take the call when she fell down a flight of stairs, sustaining an injury.  The Commonwealth Court found that the injury was within the course and scope of the employee’s employment, as she was on a work call and thus furthering the employer’s business at the moment of the fall.  Id.

However, the personal comfort doctrine is broader the facts of Alston in that the employee does not need to be furthering the employer’s business at the moment of injury.  Courts have found employees within the course and scope of employment when going outside to get lunch, US Airways v. WCAB (Dixon), 764 A.2d 635 (Pa.Cmwlth. 2000);  an employee returning to a home office from an appointment,  Jones v. WCAB (Rehabilitation Coordinators, Inc.), 489 A.2d 1006 (Pa.Cmwlth. 1985);  and a police officer cleaning his weapon at home, City of Harrisburg v. WCAB (Gebhart), 616 A.2d 1369 (Pa. 1992).  Each case may be somewhat fact-specific but as long as the activity does not stray far from the normal job duties and can be seen as furthering the employer’s business in some way, the employee will be found in the course and scope of employment.

Pennsylvania Medical Liability Immunity to Medical Practitioners caring for COVID-19 Patients

Since the outset of the COVID-19 pandemic, health care workers and facilities were faced with combating unimaginable circumstances and number of patients. Given that the COVID-19 pandemic is the leading health concern in 2020, and very likely 2021, health care workers and facilities were undoubtedly concerned about the potential liability they may be exposed to as a result of the pandemic.

In an ordinary medical malpractice action, the Plaintiff must establish the elements of negligence which includes:

1. a duty owed by the physician to the patient,
2. a breach of that duty by the physician,
3. that the breach was the proximate cause of the harm suffered, and
4. the damages suffered were a direct result of harm

Of course, health care workers caring for their COVID-19 patients would satisfy that first element which, in turn, could potentially expose them to liability if the patient experienced a bad outcome as a result of COVID-19. Realizing the potential for liability exposure that COVID-19 will have on the health care workers caring for COVID-19 patients, Governor Wolf issued an executive order on May 6, 2020 granting immunity for certain practitioners.

The Executor Order designates specific individuals as agents of the Commonwealth solely and exclusively for purposes of immunity from civil liability due to emergency services activities or disaster emergency response. The immunity was granted to “any individual who holds a license, certificate, registration or certification or is otherwise authorized to practice a health care profession or occupation in this Commonwealth, and who is engaged in emergency services activities or the provision of disaster services activities related to the Commonwealth’s COVID19 disaster emergency response”.

Specifically, it applies to the follow entities/individuals engaged in emergency services activities or the provision of the :

1. health care facilities
   1. i.e. a general, chronic disease or other type of hospital, a home health care agency, a home care agency, a hospice, a long-term care nursing facility, cancer treatment centers using radiation therapy on an ambulatory basis, an ambulatory surgical facility, a birth center regardless of whether such health care facility is operated for profit, nonprofit or by an agency of the Commonwealth or local government as defined by 35 Pa. Stat. § 448.802a;
2. any nursing facility;
3. personal care home; and
   1. A premise in which food, shelter and personal assistance or supervision are provided for a period exceeding 24 hours, for four or more adults who are not relatives of the operator, who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision in activities of daily living or instrumental activities of daily living.
   2. The term includes a premise that has held or presently holds itself out as a personal care home and provides food and shelter to four or more adults who need personal care services, but who are not receiving the services
      55 Pa. Code § 2600.4
4. assisted living facility
   1. Any premises in which food, shelter, assisted living services, assistance or supervision and supplemental health care services are provided for a period exceeding 24-hours for four or more adults who are not relatives of the operator, who require assistance or supervision in matters such as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.
      55 Pa. Code § 2800.4

However, the term “health care facility” does not include an office used primarily for the private practice of a health care practitioner, nor a program which renders treatment or care for drug or alcohol abuse or dependence unless located within a health facility, nor a facility providing treatment solely on the basis of prayer or spiritual means. Additionally, the term health care facility does not apply to a facility which is conducted by a religious organization for the purpose of providing health care services exclusively to clergymen or other persons in a religious profession who are members of a religious denomination. 35 Pa. Stat. § 448.802a

Thus, the Order essentially applies to those providing care in hospital and long-term care facility settings. The Order provides that these individuals “shall be immune from civil liability and shall not be liable for the death of or any injury to a person or for loss of or damage to property as a result of the emergency services activity or disaster services activity described above, except in the cases of willful misconduct or gross negligence, to the fullest extent permitted by law.” However, the immunity does not extend to health care professionals rendering non-COVID-19 medical and health treatment or services to individuals. The Order remains in effect for the duration of the COVID-19 disaster emergency.

With respect to healthcare workers in outpatient settings, the Order remains silent. Thus, presently, any healthcare workers that practice in the outpatient setting can potentially be exposed to medical liability as a result of COVID-19.

The full May 6, 2020 Executive Order can be found here.

Super Lawyers and Rising Stars 2020

GGM Announces 2020 Super Lawyers and Rising Stars
GGM is pleased to announce that Dean F. Murtagh, Gary R. Gremminger, John P. Shusted, Gary H. Hunter, Jeffrey D. Laudenbach, and Chilton G. Goebel, have been named Pennsylvania Super Lawyers for 2020.  Jacob C. Lehman has been named a “Rising Star” for 2020.
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Andre J. Webb Authors Article on Candor as a Strategy: Argument and Credibility

Andre J. Webb, a member of the Firm’s Casualty Litigation Group, authored an article titled “Candor as a Strategy: Argument and Credibility,” which highlights the importance of selecting only your best arguments when defending your client at an arbitration, alternative dispute resolution, or trial.

Click here to view the full article.

Coronavirus and Pennsylvania Workers’ Compensation

Overview of Coronavirus

The 2020 Coronavirus/COVID 19 pandemic has caused significant disruption to life in Pennsylvania and sickened dozens of people throughout the Commonwealth.  The number of reported cases continues to climb daily.  Measures to contain the spread of the pandemic have resulted in the closure of schools and businesses throughout Pennsylvania.  The disease has spread to every U.S. state, resulting in over 13 million cases and 271, 000 deaths.

The current crisis originated in the city of Wuhan, Hubei Province, China and spread rapidly around the globe.  The  elderly, those with compromised immune systems and those with underlying health conditions, especially respiratory conditions such as COPD and asthma are most at risk.   The available data suggests that although the disease can be severe in many cases and is highly contagious, many cases are relatively mild, especially in the young and the otherwise healthy.

Over several months, treatments have improved as the medical system gains a better understanding of the disease.  Work is ongoing on a vaccine, which is being developed as quickly as possible.  Initial trials have been promising and a vaccine rollout is expected in the Spring of 2021.

Compensability for Coronavirus under Pennsylvania Workers’ Compensation

Due to the contagiousness of Coronavirus and its rapid spread through the population, it is likely that a great many employees will ultimately contract the infection.  State and Federal governments have moved to close non-essential businesses, schools and large event spaces to slow the spread of the disease.  However, there are a number of exceptions to the closure orders.  In Philadelphia, exceptions include grocery and hardware stores, gas stations, construction, daycares, pharmacies, banks and post offices.  This means that a wide variety of businesses will remain open, requiring their employees to come to work and face possible exposure to coronavirus.  New rounds of closures are being implemented for the Fall and Winter months of 2020 and 2021.

A coronavirus infection contracted at work is compensable under Pennsylvania’s Worker’s Compensation Act.  The Act covers any disease caused by and related to employment.  Pawlosky v. WCAB (Latrobe Brewing Co.), 525 A.2d 1204, 1210 (Pa. 1987).  However, it is likely that employers’ exposure to workers’ compensation claims for COVID19 will me low for two reasons: proof and disability.

An especially relevant case is City of New Castle v. WCAB (Sallie), 546 A.2d 132 (Pa.Cmwlth. 1988).  In City of New Castle , the Commonwealth Court held that a fatal meningitis infection contracted from a kiss on the cheek from a coworker, was compensable under the Pennsylvania Act.  Specifically, the decedent was at a going-away party for a coworker, gave her a peck on the cheek and came down with a fatal case of meningitis two weeks later.  Testing done after the decedent’s death revealed the coworker was an asymptomatic carrier and was the only such carrier the decedent came in contact with.

City of New Castle demonstrates two issues that will likely stymie claims for COVID19 exposure.  First, a Claimant always bears the burden of proof to demonstrate all the elements to support an award, including causation and disability.  Vista Int’l Hotel v. WCAB (Daniels), 742 A.2d 649 (Pa. 2000); Inglis House v. WCAB (Reedy), 634 A.2d 592 (Pa. 1993).

In City of New Castle, the Claimant had the benefit of extensive testing that identified the source of the meningitis bacteria as a coworker.  This conclusively pinpointed the source of the infection to his work.  A worker who comes down with a COVID19 infection will have the same burden of proof.  But as the pandemic becomes more widespread, it will be difficult for a claimant to obtain such specific proof of the infection.  In essence, a claimant would have to show exposure to COVID19 at work, and nowhere else, to maintain a successful claim.  This is a high bar for the average worker to meet, especially as more people in the population are infected with this highly contagious disease.  Of course, specific circumstances will dictate the proof available.  A nurse or doctor who deals with coronavirus patients will likely have an easier time of demonstrating exposure at work than a stocker or cashier at a grocery store.  As testing for coronavirus becomes more routine, it may be easier to demonstrate exposure.  Such claims will come down to the available facts on a case by case basis.

The second challenge is regarding disability.  City of New Castle obviously involved a serious injury resulting in death and significant exposure to the employer.  However, with this outbreak even if a claimant has proof of an infection at work, most coronavirus infections have relatively mild symptoms and thus only minimal value as a claim.  Up to 80% of persons who contract the infection have mild symptoms and recover¹.  While an infected person will require quarantine and medical care, an otherwise healthy person contracting coronavirus may not be out of work for longer than the 14 days required to receive first-day benefits under 77 P.S. § 514.  A claimant may simply not be out of work long enough to collect more than a week of indemnity benefits.  More severe cases will result in longer term disability, even death, but these appear to be a minority overall.  It will likely be the rare case that results in significant exposure and possesses proof linking the infection to an employee’s work.

Medical benefits may be significant in those cases requiring hospitalization.  But, if the 80% figure is correct, most infections will not result in significant medical exposure.  However, this may change as we learn more regarding this disease and its long term effects.

The ongoing COVID 19 pandemic continues to evolve rapidly and new information is coming out daily.  As such exposure to workers’ compensation claims for this disease may change as new data is produced regarding the outbreak in Pennsylvania.

¹https://www.cnn.com/2020/02/19/health/coronavirus-china-sars-mers-intl-hnk/index.html

Jacob Lehman Presents at ALFA International Client Seminar in Marco Island, FL

Mr. Lehman recently had the honor of serving as the moderator of the plenary opening and closing sessions at ALFA’s signature legal conference, the International Client Seminar, which took place March 12-15 at the J.W. Marriot in Marco Island, Florida.

The sessions, entitled  “Reply All: Has the Attorney-Client Relationship Suffered in an Over-Connected World, Why it Matters and Can we Make it Better” were presented through the lens of a bet-the-company class action litigation and honed in on  issues in the attorney-client relationship from selection of counsel, to bill auditing and alternative fee arrangements, to good communication practices. The presentation materials, including clips of the world-famous “ICS Update” news broadcast featuring legal correspondent Saul Goodman, are available upon request. Please reach out to Mr. Lehman at lehmanj@ggmfirm.com.