Philadelphia Personal Injury Lawyer Blog

Prosecutors have launched a campaign to crack down on SEPTA riders and others who fake injuries in bus crashes and other accidents, Philadelphia District Attorney Seth Williams and SEPTA general manager Joseph Casey said Thursday.

SEPTA has installed video surveillance cameras on SEPTA vehicles in an effort to give prosecutors a new weapon in fighting fraudulent claims.  SEPTA displayed videos at a press conference Thursday that showed a man running to get on a SEPTA bus that had been involved in an accident, so that he could lie down on a seat and claim a back injury.  Another video showed a woman getting out of her bus seat to check an accident scene before returning to her seat to sprawl out and instruct her six-year-old daughter to feign injury, too.

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Although video cameras were installed to defend against fraudulent claims, the introduction of cameras on SEPTA busses will benefit both prosecutors and accident victims.  Video surveillance footage will help SEPTA weed out and defend against fraudulent claims.  Phony passengers and bus riders who fake injuries are likely to face criminal charges such as fraud.  

On the other hand, video surveillance will help SEPTA bus accident victims who suffer legitimate injuries to establish the authenticity of their claim.  Video surveillance can provide compelling evidence concerning how the passenger was injured, prove the victim's presence on the bus and possibly show which party was at fault in the accident.  These aspects of the case are frequently disputed and difficult to prove.  

All too often, bus passengers don't know how the accident occurred or offer a description of the accident that contradicts that of the bus driver.  Since the bus driver's job is on the line, it is commonplace for the driver to deny all liability and allege that the impact was minor and injury claims are fabricated.  Contradicting such testimony is challenging due to the perception that all bus accident injuries are bogus.  Video surveillance capturing how the accident occurred can remove the "faker" stigma from your injury case and provide positive support for your injury claim. 

On Sept 19, 2011, an Allegheny County jury found an $80 million global settlement of more than 500 claims relating to the release of radiation at two Pennsylvania nuclear plants was fair and reasonable.  As a result, it is likely that American Nuclear Insurers will need to cover the settlement paid out by the two companies (Arco and B&W) that ran the plants.

The insurance company had argued the defendants never should have settled, particularly without the insurer's consent, because the plaintiffs' claims were based on "junk science" and the defendants would have won at trial.  The underlying case involved in Babcock & Wilcox v. American Nuclear Insurers has a long and complicated history that resulted last month in a three-week trial consisting mainly of litigators testifying as to why settlements are made and why this one in particular was or was not fair and reasonable.

A bellwether case of eight plaintiffs was tried in the U.S. District Court for the Eastern District of Pennsylvania in 1998.  During pretrial proceedings, the plaintiffs offered to settle the case for $100 million for all claimants, but, according to B&W's court papers, ANI would not entertain the possibility of a settlement.  Arco and B&W decided to settle the claims on their own and out of their own pockets.  In 2008, B&W paid $52.5 million and Arco paid $27.5 million and the two companies settled any claims against one another.  The settlement was approved in the Western District in April 2009.  The two companies then looked to be reimbursed by American Nuclear Insurers.

Although the case is not over yet, the verdict puts B&W and Arco in a better position to prevail.  B&W and Arco filed post-trial motions seeking more than $11 million in prejudgment interest and will also be seeking attorneys' fees and costs.

Insurer Lloyd's Syndicate has withdrawn its $215 million lawsuit against the Kingdom of Saudi Arabia and others for providing financing to the 9/11 terrorist attacks.  Lloyd's sued the Saudis and a few of their banks and charities to recoup money it paid out following 9/11 to insured airlines, jet manufacturers, airport authorities, security companies and other parties.

Attorney Stephen Cozen of the Philadelphia law firm Cozen O'Connor said Wednesday that, "I am instructed to make no comments, other than to say the lawsuit was voluntarily dismissed."   The case - filed in U.S. District Court in Johnstown - was dismissed "without prejudice."  When a suit is dismissed without prejudice it can be re-filed on later date.

Withdrawing the case could signify any number of things:  A settlement may have been reached (although unlikely since it was filed just two weeks ago), that it's being handled through diplomatic channels, or that the plaintiff has determined the case is too weak to proceed.

Pennsylvania has an express privilege between mental health providers and patients.  The purpose of the psychologist/patient privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.  The privilege is based upon a strong public policy designed to encourage and promote effective treatment and to insulate the client's private thoughts from public disclosure. 

42 Pa.C.S. § 5944 provides:

No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L.136, No.52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

The privilege of confidentiality of communications to licensed psychologists and psychiatrists created by 42 Pa. C.S. § 5944 is not absolute.  The privilege may be waived in civil actions where the client places the confidential information at issue in the case.  For instance, if a personal injury claim contains allegations of mental injury or severe emotional trauma requiring treatment, this may result in a waiver of privilege protecting confidential communications pertaining to prior treatment for those conditions.  Courts have held that placing one's mental condition at issue in a civil trial is an implicit waiver of pertinent statutory privileges.

Recently in Gormley v. Edgar, 2010 Pa. Super. 71 (2010) the Superior court distinguished between general allegations of noneconomic damages, which do not warrant discovery of psychiatric/psychological records, and allegation of mental injury, severe emotional trauma requiring treatment or psychiatric/psychological conditions, which do allow for such discovery.  The Court held that averments of "shock, mental anguish and humiliation" did not place a party's mental condition at issue nor result in a waiver of privilege.  However, the Plaintiff's allegation of anxiety, a recognized mental condition, rendered the mental health records discoverable.  

In Passarello v. Grumbine, the Pennsylvania Superior Court found no impediment to retroactive application of the holding in Pringle v. Rappaport in which it explored the history of the error in judgment rule and precluded its use in Pennsylvania on its basis of inconsistency with standard of care.  The error in judgment rule holds that a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care.

In Passarello, a three judge panel granted a new trial to the parents and estate of a two-month old baby who died while under his physician's care. The trial court gave the jury instruction beyond the standard of care instruction and also discussed the error in judgment rule. The trial judge instructed the jury that "Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." At trial, defense counsel gave several examples of "error in judgment" to the jury and told the jury that doctors don't practice medicine by textbook and don't have applications on their Blackberrys to look up cures for certain symptoms. Defense counsel asserted that requiring doctors to be perfect is impossible. The Court stated that it was defense counsel's exploitation of the error in judgment charge locked in its decision.

The holding in Passarello reaffirms the Pringle decision which held the error in judgment rule is precluded in Pennsylvania and extends this ruling to apply retroactively to cases which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle.

Mediation is a tool plaintiff's lawyers should consider using to resolve a case fairly and quickly.  My experience is that too often since the mediation process is so different from the familiar course of litigation, lawyers are often hesitant to go down this path.  Instead, we hold course, as we have grown accustomed to the frustrations of the litigation process. 

Although mediation may not be the answer to all cases, it can be attractive in certain instances.  One such instance is when there are multiple parties and claims.  In such cases, you may not be able to get resolution to your client's "cut and dry" case because of problems with claims from other parties.  Here, mediation may be a much faster process than civil litigation.  It allows the opportunity for parties to work together and reach a settlement without the frustration of litigation. 

Another scenario where mediation may be useful is when a party's injuries are clear, but liability is disputed.    An experienced mediator can address the issues in dispute and help parties find a common ground.   Because both parties have taken a stance on who has the better side of the liability argument, a mediator is helpful in underscoring to the plaintiff the chances of defense verdict and to the defendant that because of the substantial damages, the there is real value in the case, even if liability is questionable. 

Critics of mediation claim that the process may not be advantageous to plaintiffs due to an imbalance of power or because emotions that may be elicited in the courtroom are less likely to sway a weathered mediator.  To the contrary, the right mediator can help point out strengths and weaknesses in the case and bring both parties down to earth.   Although mediation is less likely to succeed if parties are extremely hostile or not motivated to settle, this is usually a minority of cases.  

The next time you have a case that just won't settle, why not try mediation?  You may be pleasantly surprised with the result! 

If you are involved in a personal injury lawsuit you simply should not post personal information online.  Even though most social networking sites give users control over their privacy settings, posting this information creates unnecessary risks that may damage your case. 

In the lawsuit, a woman sued an office furniture company, Steelcase, claiming she was seriously injured after falling off a Steelcase chair.  Steelcase argued that the woman's Facebook and Myspace postings

"reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation." For example, Steelcase said Romano's public profile on Facebook depicted her "smiling happily in a photograph outside the confines of her home despite her claim that she ... is largely confined to her house and bed."

The judge ordered the information turned over stating that it is "reasonable to infer from the limited postings on Plaintiff's public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence."

On Tuesday, I was summoned for jury duty, along with several hundred others, for what could only be described as a day of sitting and waiting.  At  8:15 a.m., I reported to the Criminal Justice Center where I filled out a juror questionnaire.  From there, I waited.  Around 10:00 a.m., my name was called and I was assigned a jury pool.  We then went to our courtroom, and we waited. 

For the remainder of the day, attorneys for the plaintiff and defendant interviewed 25 of the 30 jurors in a process known as voir dire.   During voir dire, prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury.  This questioning lasted from around 10:30 A.M. until 3:30PM (with a break for lunch) when finally, a jury was selected, and we were released for the day.

As a trial attorney, I wanted to use this opportunity to learn what is going through the minds of potential jurors so I could later apply this knowledge to my practice.  Here are some general observations I made:

- Jurors, in general, are not happy to be there.  The most common conversation topics that took place in the panel included:  1) I am so sick of waiting, how long is this going to take?  2) I hope they don't pick me, how can I get out of this?  3) Can you believe we only get $9 a day?;

- Jurors, even if they are annoyed to be there, are curious about what's going on;

- Informed jurors have more patience for the process;

- Jurors notice what counsel is doing, how they act, and their manners;

- Jurors make observations and form opinions about the plaintiffs and defendants prior to trial.

The Takeaway:

By far, the most important takeaway of the day was that you cannot thank the jury enough for their time.  Even the most uninterested and annoyed jurors became more hospitable when genuine thanks was given.  An attorney that shows he appreciates a juror's time and service will gain respect from the jury which will benefit his client.  Counsel can use voir dire as an opportunity to develop a rapport with the panel and set the stage for a more receptive jury. 

Continue reading "My Personal Experience with Jury Duty in Philadelphia County" »

Serious injuries often result in sizable medical expenses that will continue to accumulate after the trial is over.  Typical expenses include follow up appointments, future surgeries, future medical care, pharmaceuticals and supplies, replacement of medical devices, and rehabilitation services.    It is important to have an expert create a credible life care plan that details future expenses for the jury so that these costs are included in the award.

A life care plan is a document that carefully details all of the future care a client will need and explains how much it will cost.  It should be created by an expert who has background and training to understand the medical components of your case.  Such experts may include doctors, life care planners, certified nurses and rehabilitation counselors.    

A life care plan is an incredible opportunity to build the credibility of your case.  A juror is much more likely to award future expenses if he understands why they are needed.   By crafting a credible life care plan the plaintiff can explain why expenses will be incurred and justify these costs.   However, your life care plan must be credible or you could also destroy the credibility of the claim.  Your entire case may be put in jeopardy by bolstering future expenses that are unlikely to occur or are greatly exaggerated.   Accordingly, your expert should be prepared to defend every aspect of the plan as reasonable otherwise the jury may suspect foul play.  It is my opinion that life care plans should be conservative, erring on the side of caution, so not to create a spell of doubt over a case.

By taking the time to create a detailed and justifiable life care plan you can enhance your case by supporting your underlying claim and building credibility.