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PROCEDURE-INJUNCTIONS-PRELIMINARY INJUNCTION

June 22nd, 2017 by Rieders Travis in Procedure

Reilly, et al. v. City of Harrisburg, No. 16-3722 (3rd Cir. May 25, 2017) Ambro, C.J.  This “clarifies” when preliminary injunction should be granted.  The context of this case was protests in front of an abortion clinic.  We follow our precedent that a movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief. In assessing these factors, Judge Easterbrook’s observation bears repeating: “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d…

NEGLIENCE-LANDOWNERS LIABILITY-CITY OBLIGATION TO CLEAR ICE AND SNOW

June 22nd, 2017 by Rieders Travis in Negligence

Stuski v. Philadelphia Authority for Industrial Development, CBRE, et al., 2017 Pa. Commw. LEXIS 277 (May 25, 2017) Covey, J. Michael Stuski (Stuski) appeals from the Philadelphia County Common Pleas Court’s (trial court) April 11, 2016 order granting the Philadelphia Authority for Industrial Development (PAID), CBRE, Inc. (CBRE) and CB Richard Ellis, Inc.’s (collectively, Defendants) motion for summary judgment (Motion) and dismissing Stuski’s complaint (Complaint) with prejudice. The sole issue before the Court is whether the trial court erred by granting summary judgment in Defendants’ favor and dismissing Stuski’s Complaint. After review, we affirm.  On February 9, 2013, at approximately 6:40 a.m., Stuski arrived for work, parked in the Parking Lot and, as he got out of his car, slipped and fell on snow and/or ice. Stuski claims that, as a result of the fall, he suffered injuries and damages. On November 5, 2014, Stuski filed the Complaint against Defendants, alleging therein that the Defendants’ negligence and/or carelessness caused his injuries. Stuski also asserted in the Complaint that PAID contracted with CBRE to provide the property management services at the Property, and CB Richard Ellis, Inc. was responsible for snow…

PHARMACEUTICALS-ZOLOFT

June 14th, 2017 by Rieders Travis in Pharmaceutical Drugs

In re Zoloft Products Liability Litigation, No. 16-2247 (3rd Cir. Op. Filed June 2, 2017) Roth, C.J.  This case involves allegations that the anti-depressant drug Zoloft, manufactured by Pfizer, causes cardiac birth defects when taken during early pregnancy. In support of their position, plaintiffs, through a Plaintiffs' Steering Committee (PSC), depended upon the testimony of Dr. Nicholas Jewell, Ph.D. Dr. Jewell used the “Bradford Hill” criteria  to analyze existing literature on the causal connection between Zoloft and birth defects. The District Court excluded this testimony and granted summary judgment to defendants. The PSC now appeals these orders, alleging that 1) the District Court erroneously held that an expert opinion on general causation must be supported by replicated observational studies reporting a statistically significant association between the drug and the adverse effect, and 2) it was an abuse of discretion to exclude Dr. Jewell's testimony. Because we find that the District Court did not establish such a legal standard and did not abuse its discretion in excluding Dr. Jewell's testimony, we will affirm the District Court's orders.  Central to this case is the question of whether statistical significance is necessary to prove…

CONSTITUTIONAL LAW-FIRST AMENDMENT-RETALIATION

June 7th, 2017 by Rieders Travis in Constitutional Law

Oliver v. Roquet, 2017 U.S. App. LEXIS 9017 (May 24, 2017) Krause, C.J.  A state-employed medical professional charged with assessing the clinical progress of a civilly committed sexually violent predator considered this detainee's First Amendment activities in connection with her recommendation that he not advance to the next phase of his treatment program. On interlocutory appeal, we are asked to determine whether the medical professional has qualified immunity from the resulting First Amendment retaliation claim. Because the detainee has pleaded facts reflecting that the medical professional based her recommendation on the medically relevant collateral consequences of his protected activity, but has not sufficiently pleaded that the recommendation was based on the protected activity itself, the detainee has not alleged the necessary causation to state a prima facie case of retaliation. Accordingly, we will reverse and remand.  We recognize there may be cases where a medical report purporting to focus only on the collateral consequences of a detainee's First Amendment activity could be sufficient to establish a prima facie case of retaliation plaintiff where the plaintiff is able to plead “consideration plus,”—i.e., where, in addition to consideration of the protected activity…

INSURANCE-FINANCIAL RESPONSIBILITY LAW-UM/UIM COVERAGE-STACKING-AFTER-ACQUIRED VEHICLE PROVISION

June 7th, 2017 by Rieders Travis in Insurance

The insured possessed two insurance policies.  One is a multi-vehicle policy and the other is a single-vehicle policy, under which they executed stacking waivers for uninsured and underinsured motorist coverage.  The issue is whether Standard Fire Insurance Company was required to secure a new stacking waiver from the insured when they added a 1990 Ford F-150 vehicle to their multi-vehicle policy by amending the policy’s declaration pages at the time they assumed ownership of the vehicle.  At issue are interpretation of the Sackett v. Nationwide cases.  The trial court had granted summary judgment in favor of the insureds and denied the insurance company’s motion for summary judgment.  Vehicles, as indicated, were replaced under the continuous after-acquired vehicle provision of the standard fire policy and were not replaced by endorsement or through the purchase of new insurance.  Therefore there was arguably not the requirement of execution of new waivers rejecting stacked underinsurance motorist benefits.  The insureds notified their agent of the new vehicle, the 1990 Ford F-150, and requested proof of coverage before the purchase was completed.  The agent then faxed a copy of the insurance card at issue and amended…

FOREIGN SOVEREIGN IMMUNITIES ACT

May 31st, 2017 by Rieders Travis in Miscellaneous

Bolivarian Republic of Venez v. Helmerich & Payne Int’l Drilling Co., 2017 U.S. LEXIS 2802 (May 1, 2017) Breyer, J.  The Foreign Sovereign Immunities Act of 1976 (FSIA or Act), provides, with specified exceptions, that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States . . . .” 28 U.S.C. §1604. One of the jurisdictional exceptions—the expropriation exception—says that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (3) in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency or instrumentality of the foreign state . . . engaged in a commercial activity in the United States.” §1605(a)(3). The question here concerns the phrase “case . . . in which rights in property taken in violation of international law are in issue.” Does this phrase mean that, to defeat sovereign immunity, a party need only make a “nonfrivolous” argument that the case falls within the scope of the exception? Once made,…

INSURANCE-HOMEOWNERS-EXCLUSION-SEWAGE BACKUP

May 31st, 2017 by Rieders Travis in Insurance

Windows v. Erie Ins. Exch., 2017 Pa. Super. LEXIS 309 (May 1, 2017) Moulton, J.  Erie Insurance Exchange ("Erie") appeals from the February 24, 2016 judgment entered in the Allegheny County Court of Common Pleas in favor of Howard Windows, Jr. and Eleanor Windows ("Homeowners"). We reverse and remand for further proceedings. This matter arises from Erie's denial of an insurance claim made by the Homeowners following the infiltration of raw sewage into their home in May 2012. Erie denied the claim, and on May 2, 2013, the Homeowners filed a complaint, alleging that Erie breached its policy. On March 9, 2015, Erie filed a motion for summary judgment, arguing that the policy's "general exclusion for water damage unambiguously excludes coverage for the Homeowners' losses because the back up of raw sewage and water through the Warner Alley sewer system and the drain in the Homeowners' basement contributed to their losses." On summary judgment, Erie argued that the water damage exclusion unambiguously precluded coverage for the Homeowners’ losses.  We disagree. Here, the water-damage exclusion in the Homeowners' insurance policy provides that losses caused by "water or sewage which backs up…

PRODUCTS LIABILITY-STRYKER GAMMA3 NAIL SYSTEM

May 31st, 2017 by Rieders Travis in Products Liability

Smith v. Howmedica Osteonics Corp, et al., 17-1174 (E.D. Pa. April 27, 2017) Beetlestone, J. This Court predicts that the Pennsylvania Supreme Court would not bar strict liability claims asserting a manufacturing defect against medical device manufacturers under Comment k. of Restatement 402A and Tincher. Here, Plaintiffs have plausibly alleged a manufacturing defect strict liability claim. The existence of a manufacturing defect is satisfied by the allegation that the Stryker Gamma 3 Nail System broke down after it was implanted into Mr. Smith, where it was subjected to normal and anticipated use, and that there were no reasonable secondary causes. That it existed at the time it left Defendants’ control is plausibly suggested by the allegation that the product was manufactured and shipped by Defendants to Grand View Hospital, where it was ultimately 11 implanted into Mr. Smith. And causation follows from the allegation that the failure of the Stryker Gamma 3 Nail System necessitated a subsequent surgery to remove it, as well as a total hip replacement, which gave rise to a secondary infection. Therefore, the motion to dismiss the strict liability claim insofar as it asserts a manufacturing…

CONSTITUTIONAL LAW-DUE PROCESS-SUBSTANTIVE DUE PROCESS-SEGREGATION IN PRISON

May 31st, 2017 by Rieders Travis in Constitutional Law

Yusef Steele v. Warden Cicchi, et al., 14-3127 (3rd Cir. May 3, 2017) Restrepo, C.J.  Plaintiff/Appellant Yusef Steele was a pretrial detainee housed at the Middlesex County Adult Correction Center (“MCACC”) in New Jersey in late 2008 and early 2009. During the course of his detention at MCACC, officials at the facility received credible information that Steele was involved in a scheme with an outside bail bonds service, Speedy Bail Bonds. Officials believed that Steele was threatening other detainees in order to coerce them into using Speedy and that 4 Steele was receiving some form of compensation from Speedy for his efforts. After interviewing Steele and advising him of the allegations against him, officials placed him in administrative segregation while they continued to investigate his conduct. During his time in segregation, Steele’s telephone privileges were restricted to legal calls only. Steele claims in this Section 1983 suit that the Defendant/Appellee MCACC officials violated his due process rights when they transferred him to administrative segregation in the facility and restricted his phone privileges, which interfered with his ability to attempt to find a co-signer for his own bail. The District Court…

Improving Work Zone Safety in Pennsylvania

May 30th, 2017 by Rieders Travis in Personal Injury

PA Work Zone Accident Lawyer
Road construction work zones are a hassle to navigate, and they present a major hazard to both motorists and workers. According to the Pennsylvania Department of Transportation (DOT), 47% of the work zone crashes in Pennsylvania in 2014 resulted in fatalities or injuries. In 2015, PennDOT reported 1,935 work-zone crashes – the most of any year in the preceding decade. These accidents resulted in 23 fatalities, including those of two road workers. The large number of accidents is due partially to the increase in roadwork projects since the state raised the gas tax in 2013 to pay for road repairs. Work zone collisions are sometimes caused by drivers speeding or breaking safety laws, but often construction companies or workers are to blame. Work zones may be poorly designed or maintained; work zone signs, speed limits and barriers may be inadequate; or workers may fail to take proper safety precautions. Negligence in any of these areas can lead to tragic results. There are safety protocols, manuals, statutes and regulations promulgated both by federal and state authorities. There may even be local regulations that control. Violation of these protocols may define who…