Philadelphia Top Injury Lawyer Blog

As a Philadelphia accident lawyer, I handle many cases of auto accidents. In the majority of auto accident cases, one or both drivers caused the crash by negligently failing to pay attention or make good decisions. But every now and then, a case comes along in which the fault lies with the automobile itself, or one of its parts -- which means real responsibility for the crash can be assigned to the company that made the defective part. That was the allegation in Bender v. Mazda Motor Corp., a decision from the Eleventh U.S. Circuit Court of Appeals. Peggy Bender of Alabama alleged that a defective airbag in a Miata caused the death of a family member. Mazda attempted to remove the case to federal court on diversity grounds, but the federal court denied the motion and the Eleventh Circuit affirmed. In this ruling, the Eleventh says an intervening decision did not change its mind.

For federal courts to have diversity jurisdiction, the amount of money being asked for must exceed $75,000. In opposing the motion to remove the case, Bender alleged that there was no evidence that the amount in controversy reached that much. In its answer, Mazda cited a similar case, Roe v. Michelin North America, in which the federal court found that even if the amount in controversy was not pleaded in court, it was "clear" and "readily deductible" that it would exceed $75,000. Mazda asked the district court to follow this ruling, or in the alternative, stay the case until an Eleventh Circuit ruling in Roe. The district court denied this and moved the case back to state court. After the Eleventh Circuit's ruling in Roe, which ultimately stayed in the federal courts, Mazda moved in district court to reconsider in light of the new decision. The district court denied this on the grounds that the case was out of its hands, remanded back to state court. Mazda appealed.

Before the Eleventh Circuit, Mazda argued that under a 1987 Eleventh Circuit case, Ritter v. Smith, the district court should have granted its motion to bring the case back to federal court. Bender counter-argued with another Eleventh Circuit case, 1992's Harris v. Blue Cross/Blue Shield of Alabama. The Eleventh found Harris most persuasive. That case cited 28 USC sec. 1447, which says in part that orders to remand are not reviewable on appeal or otherwise. In Harris, the Eleventh expressly found that district courts may not review their own remand orders. This trumps the motion to reconsider filed by Mazda, the appeals court found. The appeals court further found that the outcome of Roe did not matter in this case. Even if the remand to state court was legally erroneous, it said, review by the district court or the Eleventh Circuit is still barred by sec. 1447: "The case has been removed to state court, and that is where it will stay." Thus, it affirmed the district court's refusal to reconsider.

As a Philadelphia personal injury lawyer, I am familiar with cases in which large, well-funded companies pull out all the legal stops to avoid liability. This is common because large companies generally have the money to fight cases all the way up to federal appeals courts, when necessary. Because facing legal liability can be very expensive in the long run -- and because fighting a case in appeals courts is expensive for individual litigants like Bender -- it actually does make sense for defendants with a lot of funding to fight small issues to death. This tactic does not give defendants a better argument on the facts, of course -- it helps defendants dodge legal liability by removing facts from consideration.

Continue reading "Court Rules Wrongful Death Case Involving Defective Car Allegations Belongs in State Court - Bender v. Mazda Motor Corp." »

As I've recently discussed, Pennsylvania has a requirement in medical malpractice cases to submit a written affidavit from a medical professional whose specialty is similar to that of the defendant. This is intended to weed out frivolous medical malpractice cases, but as a Pennsylvania medical negligence lawyer, I dislike that it also erects another barrier to seeking justice. A similar requirement exists in Connecticut, and it's the subject of that state's Supreme Court's decision in Morgan et al. v. Hartford Hospital et al.. In this case, Winston and Edna Morgan sued a surgeon over the death of Una Morgan, of complications from heart surgery. The defendants, argued that the Morgans' case should be dismissed because they submitted an affidavit from the wrong type of medical expert. But the Connecticut Supreme Court found that by waiting more than 19 months to make that argument, the defendants had waived it.

Una Morgan underwent a heart catheterization on Jan. 3, 2005, and developed bleeding and an abdominal hematoma afterward. The next morning, Dr. Robert Lowe examined Morgan, noticed signs of bleeding and "recommended an interventional approach." Later on the same day more examination found an area of active bleeding, and metal coils were placed to help the blood clot. Nonetheless, Morgan died of multiorgan failure on Jan. 5. The plaintiffs, executors of her estate, sued Lowe and the hospital in March of 2009 for failure to timely diagnose and treat Morgan, causing her death. Connecticut law required a written opinion from a similar health care provider; they attached an opinion from a board-certified internal medicine specialist with a subspecialty in cardiac disease. Lowe is a thoracic surgeon with a subspecialty in vascular surgery. An amended complaint in April of 2008 included a written opinion from a vascular surgeon. Litigation proceeded until November of 2008, when the defendants successfully moved to dismiss the case on the basis that the written complaint was not from a similar health care provider.

On appeal to the Connecticut Supreme Court, the Morgans argued that the original opinion was adequate; that the opinion attached to the amended complaint was also adequate; and that the law requiring a written opinion is unconstitutional. The issue of whether the defendants raised their defense in a timely manner arose in oral arguments, after which the high court requested briefing. In the end, the Supreme Court agreed with the plaintiffs' argument that the defense was waived because the written opinion is a requirement of process that should be challenged within 30 days of filing an appearance. The legislature's wording clearly showed that it contemplated dismissal for failure to submit a valid opinion early in the case, the high court said. Furthermore, under Connecticut caselaw, it said, the failure to attach a written opinion from an appropriate health care provider is insufficient service of process. That means it falls squarely under the 30-day requirement of Connecticut's Practice Book Sec. 10-30. Thus, it reversed the dismissal motion and remanded the case for further proceedings.

As a Philadelphia medical malpractice lawyer, I appreciate that the court has ruled in this way because it has taken away an incentive for defendants to waste substantial time and resources. If defendants were permitted to move to dismiss months or years after the written opinion was submitted, they would be able to drain plaintiffs' resources by drawing out many hearings and depositions, only to have them all swept under the table by a dismissal. This would make it harder for the plaintiffs to file again (if that's even possible) because they would have less money with which to pursue the case. This might be a great outcome for malpractice insurance companies and their doctors, but it does nothing for people who have been injured by the negligence of a medical professional. As a Philadelphia birth injury lawyer, I believe injured families don't deserve any more obstacles to seeking justice.

Continue reading "Connecticut Supreme Court Rules Medical Malpractice Defendants Waived Defense By Sitting on It - Morgan v. Hartford Hospital et al." »

As a Philadelphia accident lawyer, I routinely handle cases that straddle the Pennsylvania state border with New Jersey. Because New Jersey is part of the Philadelphia metro area, it's not uncommon for a New Jersey resident to be involved in an auto accident in Pennsylvania, or vice versa. Occasionally, this can cause problems for drivers making insurance claims outside their home state. In Amica Mutual Insurance Co. v. Fogel, the situation was similar: the Fogel family had moved from New Jersey to Pennsylvania, and taken their Amica insurance policy with them. Amica knew about the move. However, when the family was involved in a bad accident in Pennsylvania, the company had not yet converted the policy to a Pennsylvania policy, which would give the Fogels more compensation. In this ruling, the Third U.S. Circuit Court of Appeals ruled that New Jersey choice-of-law rules apply to the dispute, but point to Pennsylvania law.

The Fogels moved to Pennsylvania in August 2008, and father Edward Fogel called Amica in September 2008 to notify it that they had moved permanently. The company began billing in Pennsylvania immediately, but told him it could not convert his policy to a Pennsylvania policy until he and his wife had Pennsylvania driver's licenses and vehicle registration. That did not happen until early 2009. However, in October of 2008. Edward Fogel and his three daughters were hit head-on by an allegedly intoxicated driver. The crash killed daughter Melissa Fogel and seriously injured the others. The at-fault driver had liability insurance of $100,000, which was paid but did not meet the family's financial needs. The family had PIP insurance for $250,000 per family member. However, under Pennsylvania law, they would be entitled to "stack" their policies for more than one vehicle, collecting more money; New Jersey did not allow this. The Fogels sought to collect under Pennsylvania law, and Amica filed in New Jersey for a declaratory judgment that New Jersey law applies. This was transferred to Pennsylvania district court, which eventually granted summary judgment in favor of Amica. The Fogels appealed to the Third Circuit.

They had better luck at the appeals court. The Third started by noting that under existing caselaw, New Jersey law should be chosen because New Jersey was the forum in which the case began. It then applied New Jersey law to determine which state's law controls the actual insurance dispute. A 1998 New Jersey Appellate Division case, NJ Manufacturers Insurance Co. v. MacVicar, had strikingly similar facts' to the Fogels' case, the Third said; that family also sought to apply Pennsylvania law to a New Jersey policy after moving but before converting the policy. That case stayed in New Jersey state court, however, and the Appellate Division ultimately decided that Pennsylvania law applied to the crash because New Jersey follows the Third Restatement of Conflicts of Laws, which says to choose the law of the state with the most significant relationship to the parties and the transaction at issue. When the Fogels moved to Pennsylvania, the insured risk clearly also moved to Pennsylvania. Thus, it didn't matter that the Fogels hadn't yet reregistered their vehicles and gotten the rewritten policy; both parties were on notice that they were driving in Pennsylvania. Following MacVicar, the Third also ruled that Pennsylvania law should apply because Pennsylvania has a greater governmental interest in the case. Thus, it reversed and remanded the case for summary judgment on the choice of law issue.

As a Philadelphia personal injury lawyer, I'm glad to see the court apply Pennsylvania law to people who were clearly Pennsylvania citizens at the time of their accident. As the Third Circuit noted, Pennsylvania has a strong public policy interest in its stacking law, predicated on the belief that its citizens should be able to use all of the insurance they have purchased. For people like the Fogels, who are now dealing with serious injuries to three of the four remaining family members, this is significant because their financial needs could be very significant. A severe head injury, for example, could leave its victim permanently disabled, requiring retraining in basic life skills. If any of the victims is too badly injured to work, he or she will need some kind of financial help for life. That's one reason why accident victims come to our personal injury law firm -- to pass these steep financial costs on to the irresponsible people who caused them and the insurance companies that have promised to pay them.

Continue reading "Pennsylvania Law Governs Auto Insurance Coverage Dispute in Fatal Accident Case - Amica Mutual Insurance v. Fogel" »

Recently I wrote here as a Philadelphia medical malpractice lawyer about a Maryland case that turned on the sufficiency of an affidavit of merit. This requirement, a version of which also exists in Pennsylvania, asks the plaintiff in a medical malpractice case to file a written document from a medical expert attesting that the defendant did violate or could have violated the community's standard of care. Such a requirement also exists in our neighboring state of New Jersey, and that requirement was the issue in the New Jersey Supreme Court ruling in Buck v. Henry. In this case, defendant Dr. James Henry moved to dismiss a case because the affidavit of merit filed was written by a doctor who specialized in a different area of medicine from Henry's. The lower courts allowed the case to be dismissed, but the New Jersey Supreme Court remanded it for a status conference it said the plaintiff should have had.

James is a family medicine specialist whose patients used to include plaintiff Robert Buck. He diagnosed insomnia and depression in Buck and prescribed an antidepressant and the sleep aid Ambien. Ambien is known to cause people to behave oddly in their sleep. One evening, Buck alleges he fell asleep while inspecting his gun, then was awakened by what he thought was the phone ringing. Still holding his gun, he reached for the phone and somehow put the gun in his mouth, discharged it and sustained permanent injuries not described in the opinion. Buck later sued for medical malpractice, and retained a licensed psychiatrist, Dr. Larry Kirstein, to write an affidavit of merit saying Henry's treatment fell outside acceptable standards. Henry's counsel objected because Kirstein came from a different specialty. Due to a clerical error, the trial court told the litigants that all affidavit issues were addressed and there was no need for a conference to decide the issue, called a Ferreira conference. Buck was granted a deadline extension and got another affidavit, this time from an emergency medicine specialist. Nonetheless, Henry moved for summary judgment because neither affidavit was from a family medicine specialist and the case had passed a deadline for Buck to submit any further paperwork. The judge dismissed the case with prejudice and the Appellate Division affirmed.

Buck appealed to the New Jersey Supreme Court. That court's opinion not only reversed the lower courts, but set new standards for medical malpractice affidavits in New Jersey. A Ferreira conference is a conference to determine whether there are flaws in an affidavit of merit, created by a 2003 medical malpractice case that the Supreme Court said addressed the very same issue. The high court found that the trial court should have held a Ferreira conference and indeed, noted that it is required. If the trial court in this case had done so, the court said, Buck would have had time to file an affidavit of merit that me the standards of New Jersey state law. The affidavits he did file were not technically correct, the court said, but were filed in good faith. If Henry was a general practitioner, a psychiatrist's affidavit should have been sufficient; the emergency medicine affidavit grew out of Henry's board certification in emergency medicine. Furthermore, the court said, doctors answering future medical malpractice complaints should now indicate which specialty, if any, was involved in the disputed treatment. It sent the case back to trial court for a Ferreira conference. Two dissenting justices argued that this decision defies the intent of the Legislature.

I'm pleased with this decision. The affidavit of merit requirement is an attempt by the state legislature to weed out cases that are not meritorious. As a Philadelphia medical negligence lawyer, I can assure you that few frivolous medical malpractice cases exist, because they are too long and expensive to bring without any realistic chance of success. As a result, the affidavit of merit really serves to erect another roadblock for plaintiffs attempting to win financial compensation for their injuries. This case does not eliminate the roadblock, but it does require future cases to have both a Ferreira conference and a clear answer as to which specialty the affidavit should reflect. As a Philadelphia birth injury lawyer, I think requiring defendants to provide clear information is reasonable and not at all burdensome, unless they believe dealing with the consequences of their mistakes is an unreasonable burden.

Continue reading "New Jersey Supreme Court Orders New Conference for Affidavit in Medical Malpractice Case - Buck v. Henry" »