Philadelphia Top Injury Lawyer Blog

As a Philadelphia accident lawyer, one thing I want all injured people to know is that insurance companies are not their friends. After a bad accident, insurers or other representatives from an at-fault company may approach the victims with money, offering a relatively small payment in exchange for a signature. You should never, ever sign anything or take money from anyone representing the party that caused your accident! This is sometimes a legal document in disguise, and your signature may legally bar you from pursuing any more compensation in the future. That was the case in Gonzalez v. Union Pacific Railroad Company, a Nebraska Supreme Court case involving a waiver of liability unwittingly signed by a grieving mother. The court ultimately sent her case back to trial court, ruling that she should have a chance to prove that the waiver was void because it fraudulently failed to explain that it was a binding mutual understanding.

Efrain Ramos-Domingo, age thirteen, died after being struck by a train at a railroad crossing. His mother, Manuela Domingo Gaspar Gonzalez, was approached two days later by Union Pacific, which offered $15,000 in exchange for her signature on a document releasing the company from liability. Gonzalez spoke no English and had no money. In later court proceedings, she claimed she did not understand the release and the Union Pacific representative did not explain its legal consequences. She later filed a wrongful death and breach of fiduciary duty lawsuit, alleging that the intersection was defectively designed; Union Pacific's operation was negligent; and the release should be void because it was fraudulently obtained. The trial court dismissed the wrongful death claim, citing the release, and also dismissed the fiduciary duty claim after discovery. Gonzalez appealed both decisions.

The Nebraska Supreme Court upheld the trial court on the fiduciary duty claim, but reversed on the issue of the waiver. Union Pacific argued that contracts are generally upheld when the signer had the chance to read them and failed to do so. But in this case, the high court found, Gonzalez had no chance to read it because she expressly pleaded that she cannot read English. Because the Union Pacific representative also didn't explain the meaning of the release, the high court found that this raised enough triable facts to survive a motion to dismiss. It dismissed Union Pacific's argument that Gonzalez had to return the $15,000 in order to rescind the contract. This is true in the case of a legal rescission of a contract, the court said, but in this case, Gonzalez is arguing for an equitable rescission based on the circumstances of the signing. This is essentially a declaration that no contract ever existed. Furthermore, the court said, rescinding a contract for fraud carries no obligation to return money at all. In addition, it said, it would be inequitable to ask Gonzalez to return the money in order to pursue her claim when she has likely spent it on Efrain's funeral. However, the Supreme Court agreed with the lower court that Union Pacific created no fiduciary duty to Gonzalez by "offering to help." It sent the case back to trial court for further proceedings on the wrongful death claim.

This case contains a lesson that all personal injury victims and their families should understand: It pays to be careful when approached by an at-fault company. Any company with enough money, or its insurance company, will try to limit the amount it pays out. While most Philadelphians are fortunate enough to be able to read and speak English, unscrupulous people can still take advantage of them in the time of emotional distress right after an accident. I advise all victims to politely decline offers from insurance company representatives until they have at least had a chance to discuss the offer with me. In fact, if I am your Philadelphia personal injury lawyer, they should never contact you directly; they should always go through my office. While it's tempting to be polite, it is much more important in cases of severe injury or wrongful death to protect your legal rights, including your right to pursue fair compensation.

Continue reading "Nebraska Supreme Court Finds Release of Liability in Child's Death May Be Void as Fraud - Gonzalez v. Union Pacific" »

Here in Pennsylvania, our legislature requires each legal claim for medical negligence against an individual doctor to be followed within 60 days by a certificate of merit written by a medical expert witness. As a Pennsylvania medical malpractice lawyer, I was therefore interested to see a ruling about a similar state law in Maryland. In Breslin v. Powell, the Maryland Court of Appeals ruled that Dr. Jeffery Breslin should not have been granted summary judgment in a medical malpractice case filed by the family of Jackie Powell. Instead, the Powells' case should have been dismissed without prejudice when the trial court found that his Certificate of Merit did not meet legal standards. The decision still ends the case, but allows the Powells to try again if they choose and can produce a proper Certificate of Merit.

Powell was admitted to Good Samaritan Hospital in Baltimore for renal surgery that was intended to keep him off dialysis. Unfortunately, the anesthesia caused a spinal cord injury that paralyzed Powell from the waist down, and his family alleged that this led to his death 15 months later. The family filed suit against the hospital and the anesthesiologist, a Dr. Monford Wolf; they later added more hospital defendants and Breslin. In support, they filed a Certificate of Merit authored by a Dr. Ronald Burt, an anesthesiologist. At deposition, Burt acknowledged that he was not qualified to testify as an expert about Breslin's specialty, vascular surgery. Breslin moved to dismiss or, in the alternative, for summary judgment.

The Powells had other experts waiting in the wings, but this was not enough for the trial court, which granted summary judgment. The Powells then moved to reconsider, arguing that Maryland law requires dismissal without prejudice, not summary judgment, which is essentially dismissal with prejudice. This too was denied. The Powells appealed to the Maryland Court of Special Appeals and won a reversal. Breslin appealed to the Maryland Court of Appeals. On appeal, the court reviewed the history of medical malpractice laws in Maryland, then turned to the task of interpreting the statute. Its plain language says a claim "shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert[.]" Breslin argued that this passage refers to failure to file any certificate at all, but caselaw, legislative intent and the plain language of the statute all say otherwise, the Court of Appeals said. Thus, it upheld the special appeals court.

As a Pennsylvania medical negligence lawyer, I can hardly see how the appeals court could have come to any other conclusion, given the language of the law. This is a good reminder that even when a trial court makes a mistake, you can and often should keep asking higher courts to reverse that mistake. It is also a reminder that it's best to have an attorney's help preparing required legal documents like this certificate, to ensure that the case is not delayed unnecessarily and its costs don't spiral out of control through mistakes. While the Powells are entitled to a second chance at their case, their first chance could have succeeded with a better expert. As a Philadelphia birth injury lawyer, I work hard to ensure that my clients' cases are free of procedural problems and can be considered on the merits.

Continue reading "Inadequate Expert Certificate Requires Dismissal of Case, Not Summary Judgment, Maryland Court Rules - Breslin v. Powell" »

As a Philadelphia injury lawyer, I was interested to read a rare case that reversed penalties against an attorney accused of misconduct during a personal injury trial. In Yolanda Adams v. Ford Motor Company, the Third U.S. Circuit Court of Appeal reversed the judgment of the district court for the U.S. Virgin Islands, which had sanctioned attorney Vincent A. Colianni for contacting a juror after the verdict was reached. Colianni was representing Yolanda Adams, who suffered a serious brain injury in an accident involving a Ford vehicle.

At the trial on the brain injury to Adams, she was awarded $2.3 million in damages, but apportioned 77.5 percent of the fault, while Ford was apportioned 22.5 percent. Thus, Adams was only eligible to collect 22.5 percent of the $2.3 million verdict, or $517,500. After the verdict was reached, Colianni apparently thought there was a clerical error on the verdict form, and got in touch with a juror to explain what he thought was the mistake. Juror Alicia Barnes felt uncomfortable with the conversation and hung up after only about a minute, then contacted the judge to report the conversation. The judge eventually sanctioned Colianni for violation of ABA Rule of Professional Conduct 3.5(c), which restricts post-verdict communications with jurors. Rather than reprimand or suspend Colianni according to local rules, the judge referred him to the Virgin Islands Bar Association for formal investigation. He also refused to seal the record. Colianni appealed.

On appeal, the Third Circuit noted that this was a new issue: whether a formal finding that the rule was violated, and a referral to the local bar association, constitutes a sanction. Ultimately, it held that this was indeed a sanction. The judge's actions affected Colianni's professional reputation, which is a major asset for any attorney and may be especially important in a small community like the Virgin Islands. This decision only gave Colianni standing, however. The court turned next to whether the judge abused his discretion by sanctioning Colianni. The judge must have believed Colianni was guilty of violating the rule's prohibition on "misrepresentation, coercion, duress or harassment," the Third said. The court found no harassment in Colianni's behavior, noting that he had a legitimate purpose for calling, called only once and hung up as soon as Barnes expressed discomfort. Thus, it agreed that there was an abuse of discretion. Finally, the Third found that Colianni's due process rights were violated by a lack of explicit notice that he was facing sanctions, the lack of a hearing and by the court's failure to follow local disciplinary rules. Thus, it vacated the district court's order.

As a Philadelphia accident lawyer, I'd like to note that Colianni was likely trying to do what was best for his client -- make sure she was getting the best judgment possible under the circumstances. If Adams suffered a serious brain injury, as this opinion finds, she likely needs at least some health care and personal care for the rest of her life. Brain damage is irreversible, and when it affects physical movement or mental stability, it can make it impossible to live an ordinary adult life. For that reason, it tends to be very, very expensive to treat, which is why Adams likely needs much more than $517,500 to cover her treatment. If Colianni can be believed, his phone call was an attempt to make sure the judgment was made with all of the available information, to ensure that he missed no opportunity to get Adams the money she needed.

If you or someone you love was seriously injured in Philadelphia or eastern Pennsylvania, Rosenbaum & Associates can help. For a free, confidential evaluation of your case, call us today at 1-800-7-LEGAL-7 or send us a message online.

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As a Pennsylvania medical malpractice lawyer, I was interested to read a federal medical malpractice appeal about a veteran who claimed a Veterans' Administration hospital in Illinois failed to recognize and take steps to prevent his stroke. Gerald Morisch and his wife, Bette Morisch, sued under the Federal Tort Claims Act for medical malpractice and loss of consortium. A federal district judge held a bench trial on the malpractice claim and the Morisches lost. They appealed to the Seventh U.S. Circuit Court of Appeals, but the court ruled in Morisch v. United States that the appeal was waived for procedural reasons and in any case, the VA's actions were not the proximate cause of Gerald's stroke.

Gerald went to the emergency room in 2003 with pain in his jaw and neck. A doctor prescribed pain medicine and sent him to the dentist, suspecting he had a bone problem called Eagle's syndrome. A follow-up appointment with his primary care doctor produced a recommendation to go to an ear, nose and throat specialist. The primary care doctor also counseled Gerald about controlling his weight, blood pressure and cholesterol, all of which are stroke risk factors. The ENT specialist found a mass in Gerald's neck and ordered a CT scan for about two weeks later. The doctor who interpreted the CT scan suggested an ultrasound, but this recommendation was not followed up. On the way home from both appointments, the plaintiffs said Gerald began experiencing symptoms of mini-strokes; Bette testified that she called the VA about it both times. About two weeks later, Gerald went to a local emergency room with stroke symptoms. He was transferred to a Kentucky hospital, where he underwent emergency surgery to remove plaque in his arteries, but the damage of the stroke was already done. Two days after the emergency room visit, Bette received a call from the VA suggesting an ultrasound for the neck problem.

The Morisches sued, alleging that the VA doctors breached the standard of care by not following up earlier with the ultrasound or noticing the stroke symptoms. At trial, an expert witness for the government testified that the neck ultrasound was unlikely to have found the stroke symptoms. The Morisches' own witness testified that it could have helped, but the real problem was the VA's failure to act on Bette's phone calls. Phone records showed no such calls, even after Bette changed her story about which phone she used. Thus, the trial court found no breach by VA personnel and, in a footnote, no proximate causation allowing the tests for the neck mass to prevent the stroke.

The Morisches appealed their Federal Tort Claims Act claim. On appeal, however, the Seventh Circuit found a fatal mistake by the couple: They did not submit a transcript of the entire bench trial (only the testimony of the government's expert), or submit a statement of issues they intended to present on appeal and serve it on the government. To make matters worse, the Seventh said, Gerald had ample time to correct the problem and did not. The filings submitted were not enough to overcome the highly deferential standard applied to findings of fact in bench trials, the court said. It deemed the appeal forfeited. It then examined the merits of Gerald's claim based on the record and found none. Under the FTCA, Illinois law on medical malpractice should control this case, the court said, and Gerald's claim fails under that standard. Bette was not a credible witness due to contradictions in her testimony. And in any case, nothing in Gerald's CT scan or neck exam could have prevented or lessened the effects of the stroke. The Seventh upheld the federal district court's judgment in favor of the VA.

As a Pennsylvania birth injury lawyer, I know suing for medical malpractice is a very fact-intensive job that requires a strong case and a lot of research. As a rule, if you have a medical malpractice claim, you can expect the attorneys for the medical provider to build a very strong defense. For that reason, it's vital to ensure that your claim is strong and you don't get upset or flustered enough to give contradictory testimony. Medical care is big business, and the people who provide it are unlikely to concede a malpractice case without a fight.

Continue reading "Seventh Circuit Dismisses Appeal of Failure to Diagnose Stroke Lawsuit at VA Hospital - Morisch v. United States" »

As a Philadelphia injury lawyer, I was interested to see a Third Circuit decision that could change how federal courts in Pennsylvania determine jurisdiction in personal injury cases involving more than one state. In Washington v. Hovensa LLC, Gloria Washington sued Hovensa and Triangle Construction and Maintenance, Inc., after Triangle employees working on Hovensa property in the Virgin Islands injured her. Washington owned a home in Texas but was back in the islands for work. The district court dismissed her suit for lack of subject-matter jurisdiction, saying she was properly a Virgin Islands resident, not a Texas resident. The Third reversed that and remanded it, saying the district court did not give enough weight to her intent to return to Texas.

Washington worked for Sabine Storage Operations, a Texas company that sent her to the islands to work as a pipe inspector for an indefinite period of time. She had been born in St. Croix and had family in the islands, who she saw regularly while she was there. She owned a home in Baytown, Texas and had rented an apartment in the islands. She had not returned to Texas for several months before she drove onto Hovensa's property, where she was assigned to work at a Hovensa refinery. She drove her rental car past a site where Triangle employees were conducting sandblasts that she said were improperly supervised and used faulty equipment. She sued Triangle and Hovensa in Virgin Islands federal court, based on diversity of citizenship. The defendants moved to dismiss for lack of diversity, arguing that Washington was a VI citizen, not a Texas citizen. The district court granted this, overriding an affidavit by Washington stating her intent to return to Texas. Washington appealed, repeating her intent to return to Texas when the assignment was over.

The Third Circuit started by noting that caselaw requires courts to presume in favor of an old domicile over a new one, although the person seeking diversity (in this case, Washington) still has the burden of proof. It's not clear that the district court took that into account, the Third said, despite the list of facts weighing in favor of finding that Washington lived in Texas: home ownership, driver's license, doctor, vehicle registration, mobile phone and bank account. The Third acknowledged that Washington's affidavit was "self-serving," in that it could easily have been engineered to give Washington the outcome she preferred. But it did not see why the district court relied on the Third Circuit's own 1968 decision in Korn v. Korn, a decision that said affidavits must be disregarded as self-serving -- but only when they are contradicted by inconsistent behavior. Because Washington's behavior has not been inconsistent, it said, the district court was wrong to disregard her affidavit. It also wrongly disregarded certain evidence, the court noted. Thus, it reversed the district court and remanded the case.

This case is mostly about jurisdiction, not the injury to Washington, so one might wonder why a Philadelphia accident lawyer like me would be interested. As it happens, where a lawsuit is heard can make a big difference. In this case, because the Virgin Islands is a relatively small community, Washington might feel that her chances of objective treatment are better in the federal courts than in Islands courts, whose judges might socialize with business leaders from Hovensa and Triangle. Federal court might also be more advantageous if federal law offers causes of action or rules of court that state law does not have. When the connection is strong, as with Washington's connection to Texas, this practice can offer injured people an opportunity to make the strongest case they can to hold the negligent party financially and legally accountable.

Continue reading "Third Circuit Rules Courts Must Consider Intent to Return to Another State When Deciding Jurisdiction - Washington v. Hovensa LLC" »