On September 18, 2015, the Honorable Stephanie A. Mitterhoff, J.S.C. denied YMCA’s Motion for Reconsideration of the denial of its Motion for Summary Judgment as to whether it is a charitable organization and entitled to immunity pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53-7 (see “CIA”). Judge Mitterhoff found that the core business of the “modern day YMCA” is a fitness center providing gym memberships including classes for various physical activities (e.g. aerobics and racquetball) for a fee.

A comprehensive analysis was conducted by Judge Mitterhoff to determine that the YMCA is not organized exclusively for religious or educational purposes, and that the sole basis for such an argument were documents such as the Articles of Incorporation, Certificates of Incorporation, and Mission Statements, which generally stated that it is an organization established to “promote a moral, spiritual, physical and mental welfare of the young men and boys of the community.”

Continue Reading No Charitable Immunity for YMCA

By way of a decision by the Superior Court of New Jersey, Appellate Division in October 2015, a case was remanded for a new trial following the Trial Court’s granting of Motions under N.J.R.E. 702 and determining that the Emergency Medicine expert was “not qualified to render opinions as to the standards of care applicable to either defendant nurse.”

This arises out of the matter of Lauckhardt v. Jeges, 2015 N.J. Super. Unpub. LEXIS 2393. Plaintiff’s emergency medicine expert, Dr. James Bagnell, was offered to provide testimony as to the emergency room doctors and nurses. Even after Dr. Bagnell had substantially completed his testimony, both as to the doctor and the nurses, there was a Motion to bar his testimony as to the accepted standards of emergency nursing care. The Court granted the Motion pursuant to 702 based on the determination that plaintiff’s expert was “not qualified to render opinions of standards of care applicable to either defendant nurse.” The Court did not just strike the expert’s testimony regarding the nursing care, instead provided an instruction that read in substance:

Dr. Bagnell was qualified as an expert in the field of Emergency Medicine and in that regard he can render and did render opinions as to the deviations from the standards of care with regard to Dr. Jeges, but he cannot as a matter of law do that for either of the nurses…

Continue Reading An Emergency Medicine Expert Can Be Qualified to Offer Opinions as to Deviations by Emergency Room Nurses

If you were previously convicted of a crime and served your time, this will show up on your criminal record. Most employers require each job applicant undergo a criminal record check, which can mean the difference between securing a new job and losing the position to a competitor. One way to prevent this issue is to have the conviction removed from your criminal record through a process called expungement. While the law in Pennsylvania makes it difficult for individuals to have a past crime removed from their record, in some cases, it is possible.

Currently, Pennsylvania permits the expungement of misdemeanors or felonies where:

  1. The individual is 70 years of age and has been free of arrest or prosecution for 10 years following their final release from confinement or supervision; or
  2. The individual has been dead for 3 years; or
  3. The individual was convicted of a summary offense and has been free of arrest or prosecution for 5 years following the conviction.

Continue Reading Expungements in Pennsylvania

An initial meeting was held in late February 2015 to update classroom and behind-the-wheel training requirements for professional truck and bus drivers. The Advisory Committee for this meeting was formed by the U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA).

In December 2014, the FMCSA initially announced that they would be forming a committee to examine minimum training requirements. This meeting would include determining the duration of classroom sessions and behind the wheel training, as well as weighing the differences between the “accreditation” versus “certification” of commercial drivers’ license training programs. Additionally, the FMCSA planned to reexamine instructor qualifications as well.

This meeting was first prompted by the Moving Ahead for Progress in the 21st Century Legislation (MAP-21), which requires the FMCSA to establish new regulations for entry level driver training. This new legislation created a certificate system for the requirements drivers must meet, as well as requiring training providers to aptly demonstrate that their training meets uniform standards. These new requirements would apply to any individuals who are obtaining a CDL to operate commercial motor vehicles pursuant to 49 CFR 383.5.

In August 2014, it was announced that the FMCSA would explore the process of discussing and negotiating any new rules that might be necessary for entry level driver training. Later that December, it was further announced that the FMCSA would instead establish a committee that would develop the proposed regulations for the entry level driver training.

The Administration intends to complete the regulatory negotiation process for proposed rules within the first half of 2015 and will publish notice of the proposed rule making sometime in 2015, with the final rules to be completed by 2016. It is strongly encouraged that anyone looking to obtain a CDL to operate commercial motor vehicles pays close attention to this process, as it will be affecting them soon.

In the case of Brown v. Trinidad, 2015 Pa. Super. 46 (2015), the Superior Court of Pennsylvania affirmed an $85,000 jury verdict in favor of a Plaintiff who had elected the limited tort option. In a March 9, 2015 opinion authored by Judge Lazarus, the court stated that the Philadelphia County jury’s determination that Plaintiff, Andrew Brown, sustained a serious impairment of bodily function as the result of a November 3, 2011 accident was proper.

At trial, Plaintiff presented testimony from medical expert Dr. Geoffrey Temple, who opined that Brown sustained a disc herniation at L5-S1 due to the subject accident. This injury was confirmed by MRI. Dr. Temple further testified that Brown’s injuries will have permanent effects on his life and he may require future medical treatment, including injections and/or surgery.

The jury was also presented with evidence that Brown began treatment with a chiropractor approximately three weeks after the accident when his pain became more severe. This treatment lasted for approximately five months, at which time Brown was informed that he had reached maximum medical improvement. Brown testified that he is no longer able to play with his daughter and that he has difficulty running and jumping due to his injuries.

Continue Reading Superior Court of Pennsylvania Affirms Limited Tort Verdict

In previous posts, I have written about the ever-evolving status of Facebook discovery in Pennsylvania. To briefly summarize, Pennsylvania Courts have generally held that the party seeking discovery of Facebook contents must make a threshold showing of relevance that an individual’s Facebook account is likely to contain relevant information before conducting further discovery. Such a showing is most commonly made through the discovery of relevant information within an individual’s public Facebook profile. A recent decision out of the U.S. District Court for the Western District of Pennsylvania lends some clarity regarding the limits of Facebook discovery even after a threshold showing of relevance has been made.

In the case of In re Milo’s Kitchen Dog Treats, Civil Action No. 12-1011 (WD PA 2015), a class of Plaintiffs alleged that their dogs were harmed by treats manufactured by Milo’s. One such Plaintiff, Lisa Mazur, posted a Facebook entry on her public profile in which she allegedly blamed another manufacturer’s dog treat for the harm to her dog. Upon discovering this, Defendants sought further information from Mazur’s private Facebook profile.

Continue Reading Defendants Not Entitled to “Limitless” Access to Plaintiff’s Facebook Account

UPDATE – Since I originally wrote this piece, the defendant in this case filed a motion for reconsideration and, in June, the Court granted that motion, ultimately reversing the previous decision regarding the sentinel event report. Continue to visit our blog for further updates on the developing law regarding the discoverability of JCHAO sentinel event reports, as well as other issues in Pennsylvania medical malpractice law.

In a case of first impression, the Lackawanna County Court of Common Pleas has ruled that a hospital’s Sentinel Event Report to the Joint Commission on Hospital Accreditation (JACHO) is not privileged and must be produced in litigation.

JACHO is a private, independent, non-profit organization that evaluates and accredits hospitals and healthcare organizations throughout the country. One of the things JACHO does is investigate and analyze “sentinel events.” Sentinel events are incidents involving patients, unrelated to the patient’s normal hospital course and treatment, which result in death or serious harm to the patient. Some of the more common “sentinel events” are surgical materials or devices retained or left behind inside patients, falls that occur at hospitals and hospital-acquired infections. When sentinel events occur, JACHO-accredited hospitals report them to JACHO by way of a Sentinel Event Report. JACHO analyzes the events and then works with the hospital to help them learn from the events and improve patient safety moving forward.

Continue Reading Court Rules that Sentinel Event Report to JCHAO is not Privileged

In a recent decision in the case of Zangenberg v. Weis Markets, Inc., et al., 10500 Civil 2012 (CCP Monroe Counrty, April 1, 2015), Judge Stephen M. Higgins granted Defendant, Weis Markets’ Motion for Summary Judgment on the grounds that Plaintiff had failed to set forth sufficient evidence that Weis was on notice of the slippery condition that allegedly caused Plaintiff’s fall.

Plaintiff alleged that her fall occurred due to a slippery condition caused by an excessive buildup of wax on the floor of the supermarket. In support of this theory, Plaintiff relied upon an invoice indicating that the supermarket floor was waxed sometime during the week of her fall. Plaintiff further relied upon the testimony of her daughter who stated that she saw a black skid mark on the floor after her mother’s fall. However, Plaintiff’s daughter was not present at the time of the fall, nor did she closely examine the area of the skid mark to determine whether there was wax on the floor. Plaintiff testified that the floor was very slippery but she did not notice any foreign substance on the floor either before or after her fall. She further stated that she did not notice anything on her body or clothing after the fall. A Weis employee testified that she examined the area of the fall after it occurred and found nothing.

Continue Reading Monroe County Court Grants Summary Judgment in Supermarket Slip and Fall

As reported by various local and national news outlets, bottled water sold at several local stores under several different brand names has been recalled due to possible E. Coli contamination. The company, Niagara Bottling, has disclosed that it had a positive indication of E. Coli at one of its spring sources. The water was produced at the company’s Hamburg, PA and Allentown, PA facilities between June 10, 2015 and June 18, 2015. In addition to other stores, the possibly contaminated bottled water was sold at the following local stores:

  • Acme
  • ShopRite
  • Wegman’s
  • 7-11

If you recently purchased bottle water from any of these stores, check the product code stamped on the bottles. The potentially contaminated water will have codes that begin with letter “A” or “F” and will have dates between June 10, 2015 and June 18, 2015. We recommend you discard and do not drink the affected water.

E. Coli is a type of bacteria that comes from human or animal waste. It can cause food poisoning symptoms, such as nausea, vomiting, and diarrhea and, in some at-risk populations like young children and the elderly, can cause life-threatening kidney failure. To date, there have not been any reported illnesses from this bottled water.

If you have any questions concerning this recall, are not sure whether water you purchased may be subject to the recall, or if you believe you may have suffered an illness as a result of drinking the affected water, you may contact Stark & Stark for free information.

In a recent non-precedential opinion in the case of Gordon v. JFBB Ski Areas, Inc., No. 1454 EDA 2014 (Pa. Super. April 28, 2014), the Superior Court of Pennsylvania affirmed a Philadelphia County ruling ordering that the case be transferred to Carbon County based upon preliminary objections alleging improper venue.

In this case, Plaintiffs had filed a complaint in Philadelphia County against multiple defendants, including Jack Frost Ski Area, seeking recovery for injuries sustained while at the Carbon County skiing destination.  Plaintiffs alleged that venue was proper pursuant to Pa.R.C.P. 2179 as defendants regularly conduct business in Philadelphia County.  Defendants filed preliminary objections seeking to have the case transferred to Carbon County alleging that their business activity in Philadelphia was not sufficient to sustain venue there.  After reviewing evidence on this issue, the Philadelphia Court agreed and transferred the case to Carbon County.

The evidence submitted indicated that Jack Frost’s lift tickets can be purchased either over the internet or at the facility in Carbon County.  While all transactions could not be tracked, roughly 4.7% of all lift tickets were purchased by residents of Philadelphia.  The evidence further indicated that Jack Frost conducts significant advertising activities and promotional events in Philadelphia.  Nonetheless, the Superior Court affirmed the ruling of the trial court.

This ruling is a bit of surprise in light of some other recent Superior Court decisions holding that a corporate defendant deriving as little as 2% of their revenue from Philadelphia County was sufficient to establish venue under Pa.R.C.P. 2179.  See Lugo v. Farmers Pride, Inc., 967 A.2d 963, 971 (Pa. Super. 2009); Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Super. 2007).  It would appear that the Gordon Court focused on the fact that no actual lift ticket sales occurred in Philadelphia County.  The Court emphasized the fact that tickets purchased through the Jack Frost website, which is administered by a California company, involves transferring money through a third-party bank.  All other tickets were sold at the mountain itself in Carbon County.  The Court further determined that all Philadelphia-based promotional events and advertising were incidental to Jack Frost’s business and insufficient to establish venue.