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MEDICAL MALPRACTICE-PEER REVIEW PROTECTION ACT-OUTSIDE CONTRACTOR

April 18th, 2018 by Rieders Travis in Medical Malpractice

Reginelli v. Boggs, et al., No. 23 WAP 2016 (Pa. S. Ct. March 27, 2018) Donohue, J.  The Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 (“PRPA”), provides a narrow evidentiary privilege to protect the “proceedings and documents of a review committee” conducting peer review activities by professional health care providers in conformity with its provisions. In this medical malpractice action, Monongahela Valley Hospital (“MVH”) contracted with UPMC Emergency Medicine, Inc. (“ERMI”) to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA’s statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. (“Dr. Boggs”) that had been prepared and maintained by Brenda Walther, M.D. (“Dr. Walther”), who served as the director of MVH’s emergency department and was Dr. Boggs’ supervisor.1 Dr. Boggs and Dr. Walther were employees of ERMI. Under the facts presented in this case and the applicable statutory language of the PRPA, neither ERMI nor MVH may claim the evidentiary privilege. ERMI is not a “professional health care provider” under the PRPA, and the performance file at issue here was not generated or maintained by MVH’s peer…

PRODUCTS LIABILITY-DEFECTIVE PRODUCTS-HIP REPLACEMENT SYSTEM

April 18th, 2018 by Rieders Travis in Products Liability

Shuker v. Smith & Nephew, PLC, No. 16-3785 (3rd Cir. March 1, 2018) Krause, C.J.  With the Medical Device Amendments of 1976, Congress added comprehensive medical device approval processes to the Federal Food, Drug, and Cosmetic Act, prescribing tiers of federal requirements for certain devices corresponding to the device's inherent risk level. In exchange for compliance with the strictest federal mandates, Congress afforded manufacturers express preemption from state laws imposing different or additional "safety or effectiveness" requirements for those devices. 21 U.S.C. § 360k(a)(2). This case presents an issue of first impression among the Courts of Appeals: how courts should apply that express preemption provision to state law tort claims challenging the design and manufacture of a medical device comprised of multiple components, some of which are from "Class III" medical devices subject to federal requirements, Riegel v. Medtronic, Inc., 552 U.S. 312, 322-23 (2008), and some of which are from medical devices that carry a different class designation and are not subject to those requirements, see Medtronic, Inc. v. Lohr, 518 U.S. 470, 475-78, 494-95 (1996). Because the plaintiffs' negligence, strict liability, and breach of implied warranty claims in their…

Digital Realty Trust v. Somers

April 18th, 2018 by Rieders Travis in Constitutional Law

Digital Realty Trust v. Somers, 2018 U.S. LEXIS 1377 (S. Ct. February 21, 2018) Ginsburg, J.  Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002, 116 Stat. 745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Most notably, Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank delineates a more circumscribed class; it defines “whistleblower” to mean a person who provides “information relating to a violation of the securities laws to the Commission.” 15 U. S. C. §78u– 6(a)(6). A whistleblower so defined is eligible for an award if original information he or she provides to the SEC leads to a successful enforcement action. §78u–6(b)–(g). Most relevant here, a whistleblower is protected from retaliation for, inter alia, “making disclosures that are required or protected under” Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation proscription at 18 U. S. C. §1513(e), or…

NEGLIGENCE-SLIP AND FALL-HILLS AND RIDGES

April 18th, 2018 by Rieders Travis in Negligence

Collins v. Philadelphia Suburban Development Corporation and Ross’s Home Improvement, Inc., 2018 Pa. 17, No. 1484 EDA 2017 (Pa. Super. January 31, 2018) Stevens, P.J.E.   David Collins appealed from a judgment entered in a slip and fall case.  It was claimed tha the trial court erred in granting motion for summary judgment.  Summary judgment was affirmed. The bottom line is that the fall occurred during a blizzard and a large amount of snow had accumulated over many hours.  There was no dispute that Mr. Collins slipped and fell on ice and snow from an active blizzard.  It was therefore claimed that there was no breach of duty.  The court noted that to recover for a fall on ice or snow covered surface it must be shown:  (1) that the snow and ice had accumulated on the sidewalk in ridges or elevations in such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling; (2) that the property owner had notice, either actual or constructive of the existence of the condition; and (3) that it was a dangerous accumulation of snow and ice which caused…

INSURANCE-ENVIRONMENTAL-BURDEN OF PROOF

April 12th, 2018 by Rieders Travis in Insurance

Conrail v. Ace Property & Csualty Insurance Co., 2018 Pa. Super. LEXIS 261 (March 23, 2018) Gantman, P.J.  The court found that summary judgment should be denied and a question of fact existed for a jury as to whether pollution-related liabilities should be covered.  The existence of a principal-agent relationship is ordinarily one for the jury to determine.  The policy defines “occrrence" as “an event, continuous repeated exposure to conditions which cause personal injury, property damage or evacuation expenses.”  The case discusses what “property damage” is in this context.  The lower court opinion is cited frequently.  As a practical matter, the burden shifts to the insurance company to proffer evidence that the polluting discharge was expected or intended.  The question of whether designer-induced burps were expected or intended by Conrail is an issue of fact for trial.  Not all of the spills documented at the site during Conrail’s tenure were burps, so some of the spills may well prove to have been unexpected and unintended.  The lower court’s sound analysis was praised.

PROCEDURE-CLASS ACTION-DEFECTIVE ROOF SHINGLES-SPECIFIC DEFECT

April 12th, 2018 by Rieders Travis in Procedure

Gonzalez v. Owens Corning, 2018 U.S. App. LEXIS 6757 (3rd Cir. March 19, 2018) Hardiman, C.J.  Class action in this Third Circuit case was properly denied because there was no clear theory of the defect.  Instead of alleging a defect, to the class so it might be proved by classwide evidence, plaintiffs invited the court to equate the existence of a defect with the mere possibility that one might exist.  The problem seemed to be that many people have problems with the shingles lasting for the warranty.  The court was looking for some specific type of theory, which the court claimed was not proffered.

ARBITRATION-LOAN AGREEMENT-ILLUSORY FORUM

April 12th, 2018 by Rieders Travis in Miscellaneous

McDonald v. Cashcall, Inc., No. 17-2161 (3rd Cir. February 27, 2018) Shwartz, C.J.  This case involved class action with an arbitration agreement concerning loan agreements.  The party’s agreement directs arbitration to an illusory forum.  The forum selection clause is not severable.  The entire agreement to arbitrate, including the delegation clause, is unenforceable and the court therefore will affirm no arbitration to take place in this case.  The arbital forum provided for in a Loan Agreement is nonexistent.

NEGLIGENCE-SLIP AND FALL-INDEPENDENT CONTRACTORS-RETAINED CONTROL EXCEPTION

March 30th, 2018 by Rieders Travis in Negligence

Santiago v. Wegmans Food Market, Inc., t/d/b/a Wegmans, Wegmans Retail Service Center, Wegmans Distribution Center, No. 16-CV-1529 (C.P. Lackawanna February 2, 2018) Nealon, J.  In this slip & fall case against commercial landowner by the employee of an independent contractor that was retained by that property owner to provide janitorial services, the owner filed a motion for summary judgment.  The basis of the summary judgment is that it allegedly owed no duty of care to the employee since a landowner who retains an independent contractor cannot be vicariously liable for the negligence of an independent contractor or its employees.  Under the “retained control” exception to that theory of non-liability, a property owner who entrusts work to an independent contractor remains subject to liability if its contract with the independent contractor grants the premises owner control over the manner, method and operative details of the independent contractor’s work.  Based upon the comprehensive terms of the janitorial services contract, the landowner dictated how the contractor’s cleaning services were to be performed, what products and equipment were to be used, when designated tasks were to be completed, and the exact manner in which…

Uber Halts Project After Pedestrian Death

March 26th, 2018 by Rieders Travis in Negligence, Personal Injury

Self-driving cars are claimed to be safer than the average human driver as they eliminate human error, but they can and do crash. Recently, a self-driving Uber SUV struck and killed 49-year-old Elaine Herzberg who was walking her bicycle across a street in Tempe, Arizona. A test driver from Uber was behind the wheel of the car at the time, but the car was driving automatically. Uber has stopped testing the vehicles after the fatal crash, but companies such as GM's (GM) Cruise and Intel (INTC) are also testing. Tesla’s Model S has allegedly already caused two fatalities. While self-driving cars are revolutionizing driving, when an accident occurs, the concept raises numerous legal issues. If a driverless car causes a crash, who is liable for personal injury claims? There is no driver controlling the vehicle, so even if someone is sitting behind the wheel, that person is, in essence, a passenger. The car itself is the driver; but can you hold a car liable for an accident? If you or a loved one has suffered harm from a crash that involved a self-driving vehicle (or any vehicle), you may be entitled to compensation for your medical…

Time for Transportation to Take Sleep Apnea Seriously

March 21st, 2018 by Rieders Travis in Car Accidents, Wrongful Death

Sleep apnea can be a cause of vehicle crashes, so it has been a major concern for transportation safety advocates for years. The condition causes fatigue, and commercial drivers who are fatigued can doze off, a dangerous situation when they are driving large commercial vehicles or trains. The American Sleep Apnea Association estimates that 22 million Americans have sleep apnea and that 80 percent of moderate and severe obstructive sleep apnea (OSA) cases are undiagnosed. A recent study from the University of California, San Francisco, concluded that 41 percent of commercial motor vehicle drivers could have OSA. And a March 2016 study from the University of Minnesota, Morris, found that drivers who do not follow their prescribed treatment for OSA are five times more likely to be involved in a crash than other drivers. Recently, sleep apnea led to two commuter railroad accidents within 13 weeks of one another.  In September 2016, a New Jersey Transit train failed to stop and struck a wall of the terminal, killing one woman and injuring 110 other people. In January 2017, a Long Island Rail Road commuter train  crashed into a room beyond the end of the track,…

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