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In Leight v. UPMC, the Pennsylvania Superior Court declined to expand the Mental Health Procedure’s Act (“MPHA”) to cover claims concerning voluntary outpatient mental health treatment. This claim arose from a March 8, 2012 shooting incident, wherein John Shick killed one person and injured several others, including Kathryn Leight, who was working as a receptionist at Western Psychiatric Institute and Clinic (“WPIC”) when the shooting occurred. Mr. Shick had a long-standing history of mental illness, and ultimately came under the outpatient care of UPMC/WPIC. On February 10, 2012, Shick appeared at his family physician to have blood drawn for testing, and inappropriately brandished a baseball bat in a threatening manner, causing the nurse to be upset. Dr. Weiner reported the incident to “Resolve,” the program within WPIC that, among other functions, takes and responds to calls about involuntary civil commitments, and sends mobile teams to evaluate and transport individuals requiring same. Resolve endeavored to take Mr. Shick to WPIC for evaluation, but Mr. Shick refused. On February 17, 2012, Dr. Weiner called resolve and spoke with a Resolve clinician, asking to have involuntary commitment papers faxed to him to accomplish the involuntary commitment of Shick. The clinician informed Dr. Weiner that Western Psych does not fax involuntary commitment papers and suggested that Dr. Weiner go to Western Psych to fill out the forms; however, this process was not advanced. On February 20, Shick was evaluated by UPP orthopedic foot & ankle surgeon, Dr. Prisk, M.D., who recognized that Shick clearly had uncontrolled schizophrenia, and really needed psychiatric care. Dr. Prisk contacted “the case managers” for psychiatric help, who he documented were unable to come. On that same day, another physician, Dr. Kirby called WPIC, on an emergent basis, and spoke with Resolve clinician Valerie Krieger, seeking assistance to have Shick involuntarily committed; however, Dr. Kirby did not attempt to or file a commitment petition. On February 28, Dr. Kirby sent Shick a letter notifying him that his practice would no longer provide medical care to him effective thirty days from that date. On March 7, Shick called for and received emergency care at his residence for his complaints of shortness of breath, vomiting blood, and parasites in his intestines and eyes. He was taken to UPMC Presbyterian Hospital's emergency department, where he repeated that history, demanded pain medication, refused to discuss his medications with the examining physicians, and left. On March 8, 2012, Shick went to WPIC, armed with 9mm semiautomatic handguns and extra ammunition. In the unguarded WPIC lobby, he shot and injured at the unprotected receptionist’s desk, and shot several other people, killing one of them, before he was himself shot and killed by an armed University of Pittsburgh police officer stationed nearby, but not in or assigned to WPIC, who responded to reports of the incident. Kathryn suffered physical injuries in the nature of gunshot wounds to the left chest and abdomen, including entry wounds there and exit wounds from her back, and related internal injuries to her muscles, ligaments, nerves and internal organs, and complications including pneumothorax and respiratory failure. She required intubation and exploratory surgery, and long-term subsequent hospitalizations; she also suffered from post-traumatic stress disorder. The Leights sued UPMC, and others, alleging gross negligence for UPMC’s failure to warn Kathryn of the dangers associated with Shick. UPMC filed preliminary objections, arguing that there was no duty to warn or protect Kathryn from Shick and that there was no duty owed to Kathryn under the MHPA. The trial court dismissed the Leights’ MHPA claims, finding that the MHPA does not apply to voluntary outpatient treatment. Upon appeal to the Pennsylvania Superior Court, the Leights argued that the trial court erred in “finding that the absence of mention of voluntary outpatient treatment in the MHPA’s scope language immunized physicians providing voluntary outpatient medical treatment from their grossly negligent involuntary examination decisions.” Further, the Leights argued that the trial court’s interpretation of the MHPA is flawed, as a determination that an involuntary commitment examination is necessary is involuntary, not voluntary, treatment. The Pennsylvania MPHA establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons. 50 P.S. § 7103. The immunity provision of the MHPA provides as follows: In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences. Id. § 7114(a); see also Farago v. Sacred Heart Gen. Hosp., 562 A.2d 300, 304 (Pa. 1989) (stating that the clear intent for enacting Section 7114 of the MHPA was “to provide limited protection from civil and criminal liability to mental health personnel and their employers in rendering treatment in this unscientific and inexact field.”). In this case, the Superior Court determined, based upon a plain reading of the MPHA, that while a plaintiff may maintain a cause of action where the parties treating or examining a patient under the MHPA have acted with gross negligence, the MHPA only applies to all involuntary inpatient or outpatient treatment, and voluntary inpatient treatment of mentally ill persons. See 50 P.S. § 7103; see also McNamara by McNamara v. Schleifer Ambulance Serv., Inc., 556 A.2d 448, 449 (Pa. Super. 1989) (stating that the MHPA “establishes rights and procedures for all involuntary treatment and voluntary inpatient treatment of mentally ill persons.”). Thus, the immunity and cause of action provisions under section 7114 of the MHPA did not apply to voluntary outpatient treatment. See McKenna v. Mooney, 565 A.2d 495, 496 (Pa. Super. 1989) (holding that section 7103 clearly states that the MHPA does not apply to voluntary outpatient treatment); see also DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d 271, 284 (3d Cir. 2007) (noting that “Pennsylvania courts have held that the MHPA does not apply to voluntary outpatient treatment.”).

Recently, in Brewington v. Walter G. Smith Elementary School, et al., the Pennsylvania Supreme Court determined that the lack of padding of a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Political Subdivision Tort Claims Act’s (“Act”), real estate exception. On May 9, 2012, nine-year-old Jarrett Brewington sustained a significant head injury during a gym-class relay race when he tripped and was propelled head first into a concrete wall. Jarrett was diagnosed with a concussion; he missed almost two months’ of school and continued to experience headaches and memory problems years later. Jarrett’s mother, Syeta Brewington, sued Walter G. Smith Elementary School and the School District of Philadelphia (collectively, the “School”) claiming that Jarrett’s injuries occurred because the School allowed a defective and dangerous condition of the premises, i.e. concrete and un-padded gym wall. In response, the School claimed that it was immune from suit based on the defense of governmental immunity. The Political Subdivision Tort Claims Act (“Act”), 42 Pa.C.S. §§ 8541 et seq., grants governmental immunity from tort liability to local political subdivisions, including public schools. However, there is, among others, a real property exception to governmental immunity ― and, in particular, whether the absence of padding on a gym wall, into which a student ran during gym class, causing injury, falls within the exception. The trial court granted the school’s motion for summary judgment, finding that padding was personal property, not real property; and, that the claim of an unsafe concrete wall was a design defect case, and did not fall under Ms. Brewington’s negligence claim pursuant to Rieger v. Altoona Area School District (Pa. Cmwlth. 2001). An en banc panel of the Commonwealth Court reversed, holding that the Act’s real property exception, applies to a governmental agency’s negligence in the care, custody, and control of real property that rendered the property unsafe for its intended and foreseeable use fall within the real property exception to governmental immunity. The Commonwealth Court acknowledged Rieger, and, the Supreme Court case of Blocker v. City of Philadelphia, which held that chattel that is not affixed to real property, is personal. However, it relied on Singer v. School Dist. of Philadelphia (Pa. Cmwlth. 1986), wherein the Act’s real estate exception applied to a gymnast’s fall on an un-padded floor. In Singer, the Court held that while the padding was personal property, the floor, which caused the injury was real property. The Commonwealth Court concluded that Rieger “misconstrued Blocker as overruling Singer” and misconstrued Singer as “holding that personalty placed on real property to render it safe for its intended use is considered to be real property for purposes of governmental immunity.” After an extensive analysis, the Supreme Court agreed the Commonwealth Court’s analysis and found that the unpadded wall directly caused Jarrett’s injuries, and that the wall constitutes real property. For those reasons set the Court held that the lack of padding of a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Act’s real estate exception.

For much of the past decade plus one of the most confusing and hotly litigated issues in Ohio oil and gas law has been the Ohio Dormant Mineral Act. In theory, the law was created to make it easier to identify the owners of severed oil and gas interests and make oil and gas leasing easier. With the billions of dollars at state in the shale play, however, major fights have brewed. The biggest fight has been over the apparent conflict between the two different versions of the law. The first version was passed in 1989 and it was amended in 2006. Both law start with the premise that a surface land owner could obtain the ownership of the severed oil and gas rights under their property if the prior owner had not used the minerals in certain ways over a 20-year period. Questions such to what constituted using the minerals and/or what 20-year period do you look at previously dominated the dispute. Most believed that the 1989 law was automatic or self-executing. That would have meant that the surface owner really did not have to do anything to claim the minerals. Once the applicable 20-year window passed without and mineral use the minerals automatically went back to the surface owner. In 2016 the Ohio Supreme Court, however, ruled that the law was no automatic or self-executing. The mineral owner had to do something to assert the claim. That something was probably a quiet title legal action. The Ohio Supreme Court ruled, additionally, that after 2006 even if you had potential claim under the 1989 act, you still had to follow the notice requirements and provisions of the new law. That meant some sort of effort to identify the prior owner and provide notice that the abandonment was to occur. Unfortunately, this meant that many people who had assumed they owned their minerals under the provisions of the 1989 law and whom had signed leases did not, in fact, clearly own their minerals because they had not followed the provisions of the new law. People who had signed leases and received their bonus money are now not receiving royalty payments. A new cottage industry of legal issues has arisen arguing that many people who believe that they had pursued the ODMA provision appropriately had not, if fact, done so. A new major issue seems to lie with the nature of the search that landowners and their attorneys did to try and locate and notice prior mineral owners or their heirs. How much of a search was or is necessary? Was proper notice provided? Was publication notice appropriate? The 7 th Appellate District recently had the occasion to weigh in on the issue. In Sharp v. Miller, 2018-Ohio-4740, the Court determined that upon the facts of that particular case the search of available courthouse records was sufficient. This had long been considered sufficient for title search purposes. With the advent of new people and family search tools on the internet parties have argued that more is now necessary. The 7 th Appellate District could not and did not provide a bright line rule as to how much of search is necessary. The issue remains a case by case analysis. At a minimum, it looks like every search could or should include some type of internet search.  Whether that is a simple Google or other search engine search, or some sort more intense people or family history search depends on the results of the search. Maybe one can find obituaries which identify heirs? Maybe the family is well known enough that there are references to them in news articles? What is clear is that person doing such a search should keep clear notes as to what they have done, why they did it and why they stopped when they did. People have hoped that ODMA issues would be resolved with each new decision from the Courts. Unfortunately, each new decision seems to breed additional confusion rather than clarification. With so much money at stake it is difficult to see a one size fits all approach to these cases. Image courtesy of Unsplash.

Johnson & Johnson’s talcum powder products are back in the news following a Reuters report that, for decades, the company knew its talcum baby powder contained asbestos. Reuters’ investigation, examining documents and sworn testimony, concluded that Johnson & Johnson failed to tell regulators or the public what its company executives, mine managers, scientists, doctors and lawyers knew, from at least from 1971 through the early 2000s, namely that the company's raw talc tested positive for small amounts of asbestos. Asbestos is an indisputable carcinogen. Even trace amounts are considered dangerous to human health. Dagger-like asbestos fibers penetrate deep into tissue and can lead to cancer of the lungs, voice box and ovaries, and to mesothelioma decades after the inciting exposure. Johnson & Johnson has consistently maintained its talc is safe, blaming plaintiffs’ attorneys “out for personal financial gain” for its troubles. But most juries have not seen it that way.  Instead they have levied huge verdict after huge verdict for cancer victims across the country for Johnson & Johnson’s concealment of the hazard potential of its talcum powder products. While Johnson & Johnson is appealing every one of these verdicts, it has been forced to run over thousands of documents in court proceedings — some of which show that from at least 1971 to the early 2000s, the company’s raw talc and finished powders sometimes tested positive for asbestos. The documents also reveal Johnson & Johnson’s successful efforts to thwart U.S. regulators’ plans to limit asbestos in cosmetic talc products and steer scientific research on the health effects of talc in its favor. Reuters’ investigative reporters found reports by a consulting lab informing Johnson & Johnson of its tainted talc as early as 1957 and 1958. Other documents revealed that, in 1976, when the U.S. Food and Drug Administration (FDA) was weighing limits on asbestos in cosmetic talc products, Johnson & Johnson assured the government that no asbestos was “detected in any sample” of talc produced between December 1972 and October 1973. But Johnson & Johnson conveniently omitted that at least three tests by three different labs from 1972 to 1975 had found asbestos in J&J talc – with levels reported as “rather high” in one case. In 1976, as the U.S. Food and Drug Administration (FDA) was weighing limits on asbestos in cosmetic talc products, J&J assured the regulator that no asbestos was “detected in any sample” of talc produced between December 1972 and October 1973. It didn’t tell the agency that at least three tests by three different labs from 1972 to 1975 had found asbestos in its talc – in one case at levels reported as “rather high.” While Johnson & Johnson continues to maintain that its talc is safe, one thing that remains clear is that the litigation over talc-caused cancers will not end anytime soon. Any talc testing J&J does today that shows no asbestos belies the fact that asbestos-caused cancers are latent diseases and take years and often decades to develop, so just because a particular J&J talc sample today shows an absence of asbestos contamination, does not mean that its talc has been historically safe. In fact, even a sample tested from a 1978 bottle of baby powder housed in J&J’s corporate museum tested positive for talc. If you believe you have contracted a talc or asbestos-caused cancer, you should contact an experienced attorney right away to explore your rights.

In the case of Schmerling v. Liberty Mutual Insurance Company, the United States District Court for the Middle District of Pennsylvania held that underinsured motorists benefit limits and 3rd party tortfeasor settlement negotiations are irrelevant, and therefore, inadmissible in an uninsured motorists claim. Schmerling sustained serious injuries as a result of being struck by a motor vehicle while walking in a parking lot. She asserted a personal injury claim against the driver of the vehicle, who had $300,000 in insurance coverage, and consented to a settlement of $275,000. At the time of the accident, Schmerling possessed $100,000 in underinsured motorists benefits by Liberty Mutual, and she commenced this action to recover those benefits. The only issue remaining was the extent of Ms. Schmerling's injuries; there was no claim for “bad faith.” In order to recover under the policy, Schmerling needed to show that the value of her damages exceeded the underlying tortfeasor's $300,000 insurance coverage. At the Final Pretrial Conference, the parties disagreed over the evidence to be submitted to the jury. More specifically, Liberty Mutual argued that the Court must prohibit evidence of the amount of Schmerling's underinsured motorist coverage and her settlement negotiations and agreement with the underlying tortfeasor because they are irrelevant and, if admitted, would be unfairly prejudicial. Schmerling claimed that both the underinsured motorist policy and the underlying settlement amount are relevant, would assist the jury in reaching a verdict, and are not unfairly prejudicial. The US District Court for the Middle District noted that evidence must be relevant to be admissible. Forrest v. Beloit Corp., 424 F.3d 344, 355 (3d Cir. 2005). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Nonetheless, relevance alone does not ensure admissibility. Coleman v. Home Depot Inc., 306 F.3d 1333, 1343 (3d Cir. 2002). Alternatively, the court noted that relevant evidence may be ruled inadmissible "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "Unfair prejudice" is more than simply "damage to the opponent's cause" but rather is "prejudice of the sort which cloud impartial scrutiny and reasoned evaluation of the facts, which inhibit neutral application of principles of law to the facts as found." Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 670 (3d Cir. 2002) Previously, Pennsylvania Courts have been divided as to the relevancy and potential for prejudice of admitting the amounts of underinsured motorists benefits available to the policy holder. See Ridolfi v. State Farm Mut. Auto. Ins. Co., No. 15-859, 2017 WL 3198062 (M.D. Pa. July 27, 2017) Here, Schmerling relaid on Noone v. Progressive Direct Ins. Co., No. 12-1675, 2013 WL 8367579,(M.D. Pa. May 28, 2013) wherein the court concluded that evidence of the underinsured motorist coverage, "even if it is merely background information, will assist the jury in completely understanding and evaluating the case" and that the evidence was "not overly prejudicial" to the defendant. Liberty Mutual, on the other hand, cited Lucca v. Geico Ins. Co., No. 15-4124, 2016 WL 3632717 (E.D. Pa. July 7, 2016), a case subsequent to Noone wherein the court determined that the underinsured motorist policy limit did not reach even the "low bar" of being relevant, because it presented no facts for the jury to decide (noting Noone failed to explain how an underinsured motorist policy "would be helpful to the jury or to what disputed issue in the case the information related"). The Lucca court further stated that the same evidence "may very well serve to prejudice by giving the jury an anchor number that has no bearing on damages." In this case, the plaintiffs argued that the policy limit is relevant in establishing defendant's contractual duties, but the Court determined that the defendant's contractual duties were not in dispute. Thus, the Court concluded that the amount of the policy limit was irrelevant to the sole issue for the jury to resolve: the extent and value of Ms. Schmerling's injuries. In assessing Ms. Schmerling's injuries, the jury is expected to focus on her symptoms, medical bills, and evidence of future medical needs. The Court concluded that the underinsured motorist policy limit does not assist the jury in making these determinations. In addition, the the Court found that the relevance of this evidence is substantially outweighed by the danger of unfair prejudice in that it gives the jury an "anchor number" that does not reflect Ms. Schmerling's actual damages. For example, the Court was concerned that the policy limit might cause the jury to inflate its damages calculation based on an improper assumption that Ms. Schmerling's injuries exceed the policy amount. Thus, the Court ruled the evidence of the underinsured motorist policy limit must be excluded. Image courtesy of Pixabay.

Recently, in the case of Swanger v. Warrior Run School District, the United States District Court for the Middle District of Pennsylvania addressed the duty of school officials to warn third parties of potential harm. Plaintiff Bobbie Jo Swanger was a mentally challenged student in Warrior Run School District's special education and life skills program. Defendant Duane Mattison was also a student in the special education and life skills program, and under the legal and physical custody of the Tioga County, Pennsylvania Department of Human Services. Prior to being placed at Warrior Run, Defendant Mattison had a history of inappropriate sexual behavior. During his time as a student at Warrior Run, Mattison was alleged to have made an inappropriate sexual advance against another student. The allegations were unfounded, however, because Mattison was found to have had sexual contact with a chicken at his foster home, he was removed from Warrior Run, and placed in an alternative education program (“DTA”) to complete the 11th grade. Warrior Run was not notified of the specific events giving rise to his removal from school since they did not involve school students or personnel. After successfully completing the 11th grade at DTA without incident, Mattison was permitted to return to Warrior Run. Warrior Run was not provided any records from DTA. Prior to the events leading to the subject claim, and while Mattison was a student at Warrior Run, he was again admonished for allegedly making a comment about touching a girl’s breasts, but he was not disciplined. Instead, Warrior Run noted that teachers were keeping a “watchful eye” on Mattison. Soon thereafter, Mattison, after allegedly securing Bobbie Jo’s consent, touched her private areas during class while the teacher was assisting other students. Another student observed and reported the incident and Mattison was removed from Warrior Run that day. After completing its investigation, Warrior Run determined that it would not proceed with disciplinary action since Mattison was to return to DTA. The District Court dismissed plaintiffs’ Title IX claim for sexual discrimination because she could not establish that Warrior Run was "deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis Next Friend LaShona D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Moreover, the Court found that Warrior Run School District's response to the likelihood of peer harassment was not "clearly unreasonable.” In other words, the plaintiffs could not show that Warrior Run’s actions in keeping a “watchful eye” on Mattison were unreasonable. The Court held that for Plaintiffs to succeed on their Title IX claim and establish that the school was deliberately indifferent, there would have to be evidence in the record to demonstrate that a school official either knew that Mattison was a substantial danger to the other female students or knew that Mattison was sexual harassing Bobbie Jo or other students at Warrior Run, and took insufficient, or no, measures to attempt to remedy the situation. Plaintiffs also filed a claim under Section 504 of the Rehabilitation Act, which provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .29 U.S.C. § 794(a). To establish a violation of Section 504, a plaintiff must show that "(1) he is `disabled' as defined by the Act; (2) he is `otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school." Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007) Here, Plaintiffs asserted that Warrior Run knew was a sitting duck for this sexual predator who was repeatedly acting out in the classroom setting and, that her disability of mental retardation rendered her most vulnerable to his predations. However, the Court determined that plaintiffs failed to point to any causal relationship between Bobbie Jo's disability and Mattison's misconduct towards her or shown that her disability affected the decisions of Warrior Run. More specifically, the Court found no record evidence that the Warrior Tun discriminated against female students in special education classes in any way, nor is there evidence that Warrior Run took any actions based on the special education students' disabilities that rendered them more vulnerable to Mattison's potential sexual misconduct. In sum, there was no evidence to suggest that Bobbie Jo was treated differently than any other student, disabled or not. Plaintiffs also brought a claim under 42 U.S.C. § 1983, wherein the plaintiff must demonstrate a violation of a right protected by the Constitution or laws of the United States, committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc). To meet the requirements of a state-created danger claim, a plaintiff must show (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006) The Court determined that the Plaintiffs failed to establish that Warrior Run’s teachers and administrators were deliberately indifferent to Bobbie Jo's needs by "consciously disregard a substantial risk of serious harm" posed by Mattison. Kaucher v. Cty. of Bucks, 455 F.3d 418, 427 (3d Cir. 2006) The Court reasoned that only one school official who arguably had any knowledge of Mattison's "propensity" for sexual misconduct did in fact take some action to remedy and address every specific situation each time he was made aware of an issue with Mattison. Furthermore, it is undisputed that this school official did not know of any inappropriate sexual contact between Mattison and any student at Warrior Run prior to the Bobbie Jo’s incident. Therefore, the Court held that none of the individual school defendants' conduct, in light of the circumstances known to them, could be reasonably found to be conscience shocking, nor do their affirmative actions, if any, bear a direct causal relationship to foreseeable and fairly direct harm suffered by Bobbie Jo, such that she was rendered more vulnerable to danger than had the Defendants not acted at all. Finally, the Plaintiffs filed a breach of fiduciary duty claim alleging that the defendants owed Bobbie Jo a duty to use reasonable care in carrying out their duties" and that they willfully failed to provide her with an environment that is reasonably safe from the intentional harmful acts of other students. Defendants contend that they are immune from suit with respect to this claim under the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA"). Pursuant to the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA"), a local agency cannot be held "liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa. Cons. Stat. Ann. § 8541. The Act provides for eight exceptions to this rule: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility services facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. Cons. Stat. Ann. § 8542(b) The Court found that none of the eight exceptions to the PSTCA applied, therefore, in order to proceed, the Plaintiffs must have presented evidence to create a material factual dispute as to whether the individual school defendants' conduct could amount to actual malice or willful misconduct. On that issue, the Court determined that there was insufficient evidence upon which a reasonable jury could find actual malice or willful misconduct on the part of any of the defendants. Image courtesy of Pixabay.

“Does this mean we have to go to trial?” I would have to say I hear this question from clients more than any other, generally accompanied by an anxious, pleading look. As attorneys who pride themselves on being prepared to proceed to trial in any case we take on, and doing so with a good deal of success, I think we sometimes forget the type of anxiety our clients feel when facing the possibility of having to tell their story in front of a bunch of people they have never met. As trial attorneys, taking a case to trial is the pinnacle of what we do, so we welcome the opportunity. As laypeople, our clients may not feel that same sense of excitement. So, the short answer to the question posed above is, almost always, “no”. Here’s why: Once a case is actually filed in court, most judges will enter what is called a scheduling order.  This order sets deadlines for certain things to be accomplished, like making amendments to pleadings, completing discovery, and filing motions which would dispose of the case one way or the other. Importantly, this order almost always requires the parties to participate in settlement mediation several months in advance of the anticipated trial date. It is this settlement mediation that frequently results in the case being fully and finally resolved without trial. In simple terms, mediation is a process whereby the opposing sides to a particular suit come together, along with a trained mediator, and try to reach a settlement. The mediators are lawyers who are specifically trained in ways to bring the parties closer to a resolution. It is the mediator’s job to tell each side about the particular strengths and weaknesses of their case, and how those strengths and weaknesses should cause them to alter their settlement position. As one mediator likes to tell the involved parties, “. . . a mediation is like a junior high dance. At the beginning, the boys are all on one side of the room, and the girls are all on the other side. It’s my job to bring everyone to the middle.” It’s a fitting analogy. The mediation will typically start with the parties all together in the same room, so the mediator can introduce himself/herself, and give the clients a bit of information about what to expect. After that, everyone goes to their separate corners. The plaintiffs will be in one room, the defendants in another. The mediator generally begins with the plaintiffs, asking us to present a settlement demand. He then takes that demand to the defense, talks with them about how he views the case, and the process goes on from there. Sometimes, it’s over within an hour or so, after it becomes clear that the parties are so far apart, there is pretty much no chance of reaching a resolution. More often than not, however, the process continues for several hours, with the mediator gently, and sometimes not so gently, nudging each side toward the middle. When everyone finally agrees on a figure, the attorneys sign a document acknowledging the terms of the settlement, everyone shakes hands, and it’s over. Just like that. Obviously, what I have presented here is a very, very rough outline of an important part of the litigation process. If you actually have occasion to become involved in a mediation, our attorneys will spend a significant amount of time with you, explaining what to expect. This short article was not intended to be a comprehensive overview. It was simply a means to relieve some of the anxiety you may feel about going to see an attorney if you’ve been hurt. The vast majority of the cases we handle are settled long before trial. So, try to relax. You don’t have to go to trial. Image courtesy of Unsplash.

In Nicolaou v. Martin, No. 44 MAP 2017 (Pa. Oct. 17, 2018) (Op. by Baer, J.), the Pennsylvania Supreme Court ruled that it is the jury who determines whether a plaintiff has acted reasonably in pursuing her claim with reasonable diligence once aware that she has been injured due to the negligence of another. In 2001, Nancy Nicolaou was bitten by a tick on her ankle, which caused a rash, numbness and tingling in her left toe, fatigue, and lower back pain. Based on this information, Lyme disease was a primary diagnosis for consideration. From 2001 through 2007, Mrs. Nicolaou treated with no less than four different health care professionals, who all considered the diagnosis of Lyme disease; however, because lab tests were negative for Lyme diseas-*e professionals did not treat her for same. Several years elapsed and Mrs. Nicolauo’s conditioned worsened and she became incontinent and confined to a wheelchair. In 2006, an MRI revealed processes consistent with MS or Lyme disease. Again because repeat Lyme disease lab results were negative Mrs. Nicolauo did not receive standard antibiotic therapy. Instead, the health care professionals treated Mrs. Nicolaou as having MS, and administered steroids. The health care professionals reasoned that Mrs. Nicolaou did not have Lyme disease since all four standard laboratory tests for Lyme disease were negative. Importantly, in all of the laboratory reports, the laboratory advised the health care professional of the very real possibility of a false negative due to limitations of the tests. Notwithstanding her health care professionals’ opinions, Mrs. Nicolaou suspected that she had Lyme disease, and stopped treating with her primary health care professionals in 2007. In 2009, Mrs. Nicolaou commenced treatment with a Lyme disease specialist, who acknowledged that Mrs. Nicolaou might have Lyme disease despite the negative lab tests, and treated her with standard antibiotic therapy for Lyme disease. Ultimately, Mrs. Nicolaou was offered a specialized test to test for Lyme disease, which she deferred because she did not have insurance or the funds to pay for the specialized test. Moreover, she wanted to determine the efficacy of the antibiotics. After a few months, Mrs. Nicolaou’s urinary problems abated and she started feeling better. She accumulated sufficient funds to pay for the specialized test and it was done. On February 13, 2010, almost nine (9) years from the time she was bitten by the tick, Mrs. Nicolaou received her test results, and learned that she did in fact have Lyme disease. Later that day, Mrs. Nicolauo posted a message on her Facebook page stating that her test results were positive for Lyme disease. She also stated that she had been telling everyone for years that she thought she had Lyme disease, and that her doctors had ignored her. On February 10, 2012, Mrs. Nicolaou sued her health care professionals that treated her from 2001-2007, alleging negligence for failing to diagnose and treat her Lyme disease. She further claimed that due to her health care provider’s negligence, her Lyme disease infection became chronic and permanent, confining her to a wheelchair. After discovery was completed, the defendants filed a motion for summary judgment claiming that Mrs. Nicolaou’s claims should be dismissed because she filed her claim beyond the statute of limitations. More specifically, the defendants argued that Mrs. Nicolaou should have known that she had a compensable claim well before February 13, 2010 due to her Facebook post, and the fact that she was getting better on antibiotics administered to treat Lyme disease. The trial court agreed with the defendants and dismissed Mrs. Nicolaou’s claim; and the Pennsylvania Superior Court affirmed. The Pennsylvania Supreme Court agreed to hear Mrs. Nicolaou’s appeal. In Pennsylvania, the statute of limitations for filing an action to recover damages for injuries to the person caused by the wrongful act, neglect, or negligence of another is two years. 42 Pa.C.S. § 5524(2). An exception to this general rule is the discovery rule, whichthe tolls the statute of limitations where the plaintiff is reasonably unaware that she has been injured and that her injury has been caused by another party’s conduct. Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). Under the facts of this case, and pursuant to the application of the discovery rule, the Pennsylvania Supreme Court felt the determination of the point in time Mrs. Nicolaou should have reasonably been aware that she had suffered a compensable injury is a factual issue best determined by the collective judgment, wisdom and experience of jurors. Moreover, the Court held that it was for the jury, and not a court, to determine whether a person in Mrs. Nicolaou’s circumstances acted reasonably in delaying the administration of a fifth Lyme disease test to confirm the probable diagnosis. Image courtesy of Unsplash.

Monsanto’s weed killer Roundup is in the news this week, once again, for all the wrong reasons. A new report from the Environmental Working Group (“EWG”) finds that dozens of common breakfast cereals and snack bars – including staples like Cheerios and Quaker Oates – are contaminated with glyphosate, the cancer-causing herbicide found in the weed killer Roundup, at levels higher than what EWG scientists consider protective of children’s health. Nearly every sample of conventionally grown oats tested by the EWG was contaminated with glyphosate at levels considered to be higher than those protective of children’s health. An earlier report found similar results in over thirty oat-based foods. This food contamination comes from use of Roundup on the oat and grain crops from which popular breakfast foods are processed. The EWG’s report found glyphosate contamination of some foods on the order of 1,000 parts per billion (by comparison 160 ppb is considered a benchmark safety level for lifetime risk). Although measured in parts per billion, it is widely known that even small exposures can accumulate and add up over a lifetime to significantly increase one’s risk of developing cancer. As a parent, it is highly concerning to think that all the while my kids have been eating their “heart health” Cheerios, they were getting dosed with carcinogenic weed killer. And while Monsanto (now Bayer AG) and other companies that profit mightily from Roundup use continue to deny any cancer risk from it, just this week the California Court that presided over the country’s first Roundup/cancer trial (resulting in a $289 million verdict in favor of the cancer victim) rejected Monsanto’s Motion to vacate the verdict finding that sufficient evidence existed for the jury to concluded that the plaintiffs’ Roundup exposure caused his non-Hodgkin’s lymphoma. Not everyone is taking this disturbing news lying down. To date more than 156,000 people have signed a petition from EWG and Just Label It calling on General Mills, Quaker and Kellogg’s to eliminate glyphosate from its food. Other companies, including MegaFood, Ben & Jerry’s, Stonyfield Farm, MOM’s Organic Market, Nature’s Path, One Degree Organic Foods, Happy Family Organics, Patagonia, PCC Community Markets and Amy’s Kitchen, have joined this effort as well. If you believe that chemicals linked to cancer have no business being in children’s food, click the link above and add your name to the petition. To see just how much glyphosate is in some of your favorite breakfast foods, click here for a complete listing of the products most recently tested. If you or a loved one believes they may have gotten cancer from exposure to Roundup, you should contact an experienced attorney right away to discuss your rights. Image courtesy of Unsplash.

As lawyers who have seen, firsthand, the immense suffering innocent victims have undergone and the excruciating deaths they have experienced from asbestos exposure. It is difficult to fathom how, in this day and age, it could even be possible, but asbestos imports to the U.S. are surging on the basis of the Trump EPA’s signaling that it will do nothing to ban or even reduce the use of asbestos in our country. In fact, just the opposite. This EPA wants to expand the use of this terribly hazardous toxin throughout the U.S. Asbestos imports soared by nearly 2,000 percent between July and August of this year alone on the news, a terrifying trend that is sure to continue under the current administration. In 2016, Congress passed legislation overhauling the federal Toxic Substances Control Act (“TSCA”), giving the EPA new powers to ban and restrict dangerous substances. Asbestos, which has been known for over a century to cause fatal cancers and is the only known cause of mesothelioma (one of the very deadliest cancers), was at the top of the list. The legislative amendments to TSCA now require the EPA to consider all uses of a chemical when evaluating it for safety. However, despite this clear directive, the Trump EPA is ignoring this mandate and appears to be establishing a framework to eventually declare asbestos safe. This is an Orwellian nightmare scenario that has already had the ripple effect of bringing more asbestos into our country and potentially risking tens of thousands of additional lives. The biggest winner so far in this public health gambit appears to be . . . Russia. Go figure? Russia is one of the largest asbestos producers in the world and it has been reported that at least one Russian company, Uralabest, has emblazoned its asbestos packaging with the face of Donald Trump. In response to the administration’s about face on asbestos. But the biggest loser here is clearly the American working public, who will almost certainly face new exposure risks themselves, and carry those risks home to their loved ones, through contaminated clothing and vehicles, for instance. According to the Occupational Safety and Health Administration, there is no safe level of asbestos exposure. So, every one of the fibers contained in the 259 additional metric tons of asbestos that made it to U.S. shores this past August carries the risk of potential premature death for Americans of all stripes. But I guess “thems the breaks” when it comes to “making America great again.” Image courtesy of Pixabay.

In Chandler v. L’Oreal USA, the United States District Court for the Western District of Pennsylvania has determined that L’Oreal’s Regular Optimum Salon Haircare ® Defy Breakage Salon No-Lye Relaxer (“Defy Breakage relaxer”) is not a defective product and dismisses plaintiff’s claims. Ms. Chandler had been using L’Oreal’s Dark and Lovely ® relaxer regularly for the past decade. On one occasion, the store was out of the product, so she elected to purchase L’Oreal’s Defy Breakage relaxer for the first time. She did not observe the exterior packaging, which showed a female model with straight hair, and contained the following small print language, “IMPORTANT – READ & FOLLOW THE SAFETY INSTRUCTIONS,” which she did not read. The safety instruction, in part, instructed the consumer to perform a “strand test” before relaxing. Because she regarded her hair as “coarse,” she left the product on for 20 minutes in accordance with the instructions for use for that hair type. When she rinsed off the relaxer, some of her hair fell out and went down the drain. Ms. Chander was diagnosed with traumatic alopecia, and despite treatment, her hair had not returned to its preinjury state. Plaintiff sued L’Oreal asserting product liability claims for strict liability, negligence, breach of implied warranty, fraud and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). Defendants maintained that the plaintiff failed to establish evidence to demonstrate that the Defy Breakage relaxer was defective and that the product’s advertising contained any misrepresentations upon which she justifiably relied. In order to bring a claim for strict liability, negligence, and breach of warranties, plaintiff must prove that the product was defective. A dangerous product can be considered defective for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Davis v. Berwind Corp., 647 Pa. 260 (Pa. 1997). Under Section 388 of the Restatement (Second) of Torts, a manufacture has a duty to exercise reasonable care to inform those for whose use the article is manufactured of the facts which make it likely to be dangerous. In both strict liability and negligence claims, the plaintiff must show that the absence or inadequacy of the warnings was the cause of the injury. Igwe v. Skaggs, 258 F. Supp. 3d 596 (W.D. Pa. 2017). In this case, the Court determined that the plaintiff failed to establish sufficient proof to show that the Defy Breakage product’s warnings were inadequate, and no evidence to show that an adequate warning may have prevented her injury. The Court reasoned that the product’s warnings notified consumers that failure to follow the instructions may result in permanent hair loss. Further, the Court held that a more detailed warning would not have made a difference because the plaintiff did not read the warnings on the exterior of the package, and while she read the warnings/instructions inside the box, she ignored them. Plaintiff also asserted a claim for a manufacturing defect, i.e. strict liability and breach of the implied warranty of merchantability. A manufacturing defect can be established by direct evidence of a breakdown in the machine or a component thereof or by circumstantial evidence of a product malfunction as long as plaintiff rules out abnormal use or secondary causes of the injury. Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844 (E.D. Pa. 2017). Under the “malfunction theory,” plaintiff may be able to rely on the following types of circumstantial evidence to show a defect: (1) the malfunction of the product; (2) expert testimony as to a variety of possible causes; (3) the timing of the malfunction in relation to when the plaintiff first obtained the product; (4) similar accidents involving the same product; (5) elimination of other possible causes of the accident; and (6) proof tending to establish that the accident does not occur absent a manufacturing defect. Barnish v. KWI Bldg. Co., 602 Pa. 402 (Pa. 2009). Here, because plaintiff did not retain a portion of the product, it could not be tested to determine if it adhered to the product specifications. Similarly, she failed to establish a defect in the entire batch or line of relaxer products from which she purchased was manufactured. Finally, the Court did not believe that the plaintiff met her burden under the malfunction theory because she only used the product on a single occasion and admits that she did not adhere to all of the provided instructions and warnings in that she did not conduct a strand test to determine how her hair would react to the product or how long it should be applied. “Given these admissions, a reasonable jury could not infer that an unspecified defect caused a malfunction when the more likely explanation is the abnormal use.” Lastly, the Court addressed the plaintiff’s UTPCLP and fraud claims. The UTPCPL provides a private right of action for consumers harmed by unfair methods of competition or deceptive business practices. 73 P.S. Sec. 201-9.2(a). In order to maintain a cause of action under the UTPCPL, a consumer must show that (1) she purchased or leased the good primarily for consumer purposes, (2) she suffered some ascertainable loss, and (3) the loss resulted from an unlawful method, act, or practice under the statute. Toy v. Metro. Life Ins. Co, 928 A.2d 186 (Pa. 2007). Plaintiff is also required to prove that she justifiably relied on the defendant’s wrongful conduct or representation and that she suffered harm as a result of that reliance. Yocca v. Pittsburgh Steelers Sports, Inc., 584 A.2d 425 (Pa. 2004). With respect to fraud, plaintiff must show: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) that the resulting injury was proximately caused by the reliance. Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. 2018). Here, the Court determined that the plaintiff had not justifiably relied upon any of the alleged misrepresentations on the products’ packaging, as she did not read it. Image courtesy of Unsplash.

My case is set for mediation – what does that mean? In today’s day and age, it has become the norm for judges to require parties to a lawsuit to engage in mediation. However, many people do not understand the process of mediation and/or what the so called “mediation” will require of themselves. To put it simply, mediation is an informal process of alternative dispute resolution wherein the goal is to attempt to resolve or settle matters between people or parties using the help of a neutral third party called a mediator. Because a majority of lawsuits no longer go to trial, mediation has become one of the regular manners in which a matter gets resolved. Additionally, judges will more often than not require that mediation take place before a certain date during the litigation process. Not only do many Courts require that mediation take place, but also, Courts want to know the status of the mediation – what happened, who was there, and where did things leave off between the parties. Accordingly, if you are involved in a lawsuit, you will more likely than not be required to mediate at some point in time. Now that you understand the basics of mediation, you may ask next, who is at mediation? First, all parties and their respective attorneys as well as the mediator will be present. In addition, courts have now required that the party who is responsible for making any type of payment have an individual present at the mediation who has the authority to say yes or no to a certain settlement amount. For example, common language currently found in scheduling orders will read as follows: “The following persons shall be furnished with reasonable written notice of mediation and shall be required to appear at mediation sessions: (1) each party or the party’s representative having full decision-making discretion to examine and resolve issues; (2)   each party’s counsel of record; and (3) a representative of the insurance carrier for any insured party, and said representative shall have full, unqualified decision-making discretion to examine and resolve issues and make decisions, including settlement decisions for full policy limits, without having to contact anyone for any type of authority.” Accordingly, it is important that all of these individuals are present at the mediation in order for it to be a productive step towards accomplishing resolution of a matter. Now that you know what mediation is and who is there – your next question may be, what happens and what do I as a party have to do? The manner in which mediation begins varies not only as a result of who the mediator is, but also it may depend on the nature of the lawsuit. For example, some mediators require “opening statements” wherein each attorney will present their theory of the case. Many times, videos are used to illustrate the theory of the case. Other times, counsel for the parties simply state a few words as to where the matter stands and if the parties have engaged in any settlement discussions to date. Thereafter, the various parties will separate to different rooms or areas and the mediator will go back and forth between each wherein settlement negotiations will take place. It is the mediator’s goal to present an objective look at each side’s evaluation of the case in an to attempt to reach a mutual agreement between the parties on the value of a case. In sum, that is the basic level of understanding of the mediation process – although it may seem relatively straightforward, there is a talent to mediation and skills that both attorneys and mediators must hone in to achieve successful results.   Today's blog: Have you ever wondered what a 'mediation' entails? Erica tells us about that on the blog today and what you can expect going into one with your attorney.