Wednesday, January 8, 2014

Pennsylvania Deposition Objections



In Pennsylvania deposition objections are a source of confusion and consternation for attorneys.  Some attorneys rarely object during depositions while others object after every question.  Because Pennsylvania courts seem to approach this issue on a case by case motion basis revolving around a broad, general rule (Pa.R.C.P. 4003.1) deposition objections are often abused by well-intentioned and unscrupulous attorneys alike (at least in the humble opinion of this author).  Beyond objections, what causes this attorney the most aggravation are instructions by opposing counsel for their client not to answer a question.

On this last point, Pennsylvania Rule 4003.1 suggests that the only areas of inquiry which are completely off limits are matters of privilege (“a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter”).  It could also be argued that completely irrelevant inquiries, those matters not calculated to lead to relevant information, are similarly off limits.  Curiously, I have rarely encountered an objection during a deposition  on the basis of relevance.  Additionally, it would be valid to instruct a witness not to answer questions that would violate a Court’s order or violate a contractual or settlement agreement provision (there may be some other technical situations that I am not thinking of, trade secrets, etc.).

Beyond the above, I see no other permissible reason for an attorney to instruct their witness not to answer a question.  Nevertheless, I seem to encounter this deposition obstacle often. 

For instance I just encountered such an instruction by opposing counsel.  The lawsuit concerns a slip and fall on tile floor in a fast food restaurant.  Pre-deposition discovery revealed that this establishment had had multiple instances of slips and falls prior to the subject fall.  The restaurants response thereto was questionable at best.

I asked the restaurant’s store manager who was on duty at the time of the fall a series of questions about whether, in his opinion, he believed it would be reasonable for the restaurant to act in certain ways in response to learning of a slipper condition on its property.  I eventually asked the witness whether he believed it would be wrong to ignore customer reports of a slipper condition.  This question drew a great deal of speaking from the other attorney (not necessarily an objection) followed by a blanket instruction not to answer the question.  When asked whether a privilege was being asserted the attorney indicated that the witness was not an expert and could not answer such question.  That was the end of that- quite frustrating.

Sadly, it appears that the only recourse to this type of improper instruction from an attorney defending a deposition is to file a motion to compel with the court and hope for the best.  Personally, I think the Pennsylvania procedural rule as to instructions not to answer should be more clearly delineated i.e an instruction prohibiting witness response may only be given for X, Y and Z.  Until that happens plan accordingly to minimize the opportunity of other attorneys to make such instructions and get to work on a well crafted motion to compel!
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Wednesday, June 5, 2013

Failure to Timely Treat Plagiocephaly Leads to Surgery, Disfigurement

 While deformational plagiocephaly in infants is not life-threatening, it can lead to disfigurement detrimental to children's well-being.  See, Diagnosis and management of deformational plagiocephaly.



The current recommendations for the prevention and treatment of infant plagiocephaly is: 1) more parental education is needed to minimize the development and progression of deformational plagiocephaly; 2) mild deformity can be treated with repositioning and physical therapy protocols; and 3) severe deformity is likely to be corrected more quickly and effectively with cranial orthosis (when used during the appropriate period of infancy) than with repositioning and physical therapy. See, Diagnosis and management of deformational plagiocephaly.

In 2008 a verdict was rendered for a child left with permanent deformity due to a failure to diagnose plagiocephaly.  As a result of their newborn's untreated plagiocephaly condition (which prevented conservative treatment), the child's parents brought legal action against the five physicians at the child's pediatrics group. The family was represented by Ronald M. Schiffman.

The child's parents maintained that their child was born with plagiocephaly. At four months of age, one of the physicians noted the disorder and told the parents to alter the way the infant lay in his crib. The parents alleged that the pediatrics group treating the infant did not properly treat the disorder and a window closed for conservative treatment. The parents maintained that instead of repositioning therapy, the child should have been prescribed an orthotic helmet to normalize the shape of the skull.

As a result, the child's condition was not addressed with helmet therapy until ten months but by which time such treatment was futile. Unfortunately, the infant was caused to undergo extensive craniofacial surgery at 13 months of age. He had a second related surgery at six years of age and now has a scar across the top of his skull from the area of the left ear to the right ear. The plaintiff parents contended that the child suffers emotional distress due to the scarring.

The defendants contended that the disorder was not severe in the infant plaintiff's case, that they treated the child appropriately and properly, and maintained that the infant plaintiff had not required the surgeries that were performed.

After several days of trial, the jury found three of the defendant physicians, plus a non-party physician, to be liable and awarded the plaintiff $ 590,000 for past pain and suffering and $ 1,410,000 for 66 years of future pain and suffering.

Such lawsuits can be easily avoided through better parent education and more vigilant examination of infant's skulls during the first few months of life.  Plagiocephaly is a condition that can be easily prevented at little to no cost.  Pediatric offices should make it standard practice to have detailed conversations with parents about plagiocephaly and torticollis shortly after a child is born.  There is really no reason for anything otherwise.

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Tuesday, March 19, 2013

Customer Left Alone on Treadmill in Sears Falls Down

Sears Corporation was sued in premises liability for a fall sustained by a customer enticed to try out a treadmill.  Pennsylvania personal injury lawyer  Joseph Chaiken of Philadelphia, Pennsylvania obtained a $150,000 verdict in this fall down lawsuit of Gerben v. Sears Roebuck.

In this case, the female plaintiff, in her 60's at the time, suffered injury in a fall which occurred at the defendant's department store as an alleged result of the negligence of a store employee in leaving the plaintiff on an activated treadmill for an extended period of time. The plaintiff contended that she fell as she attempted to deactivate the treadmill. The plaintiff customer testified that a sales representative employed by the defendant Sears invited her to try out one of the floor model tread mills on display. As the plaintiff was operating the treadmill, the salesman walked away. The plaintiff testified that before the salesman walked away, she specifically asked him how to deactivate the machine. The plaintiff related that when she attempted to deactivate the machine as per the salesperson's previous instructions, the machine failed to turn off and instead, began to run faster, causing her to be thrown to the floor.

The plaintiff introduced an incident report of the accident written by the defendant's manager. The report stated that "customers should not be left alone on the treadmills." The statement was allowed into evidence as an admission by a party.

The plaintiff's treating physician testified that the plaintiff suffered epicondylitis (inflammation) of the elbow as a result of the fall, for which surgery was performed. The plaintiff's husband testified that as a result of the injuries suffered in the accident, he is now forced to perform all duties required of maintaining the household.

The defendant denied that the plaintiff was left alone on the treadmill and argued that the plaintiff was comparatively negligent in attempting to operate the equipment on her own. The defendant additionally argued that the plaintiff's complaints pre-existed the subject accident, noting that the plaintiff had been previously treated for arthritic hip problems prior to the subject fall.

The jury found the defendant 75% negligent and the plaintiff 25% comparatively negligent. The $ 150,000 gross award was molded accordingly.

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Wednesday, March 13, 2013

Target Employee Sees Puddle and Leaves to Get Safety Cones, Patron Falls in Mean Time

Pennsylvania personal injury attorney Edward Chacker of Gay, Chacker & Mittin obtained a great result in a slip and fall case against a Pennsylvania Target Store.  On July 21, 2003, plaintiff Christina Walker, 40, retail clerk, was in a Target store in the Philadelphia area when she slipped and fell on water in an aisle resulting in a premises liability lawsuit.

Claiming premises liability, Walker sued Target Stores Inc. and Target Corp. The plaintiff maintained that a pharmacist on duty at the time of the incident was in the aisle when a customer reported a spill. After being notified, the pharmacist left the aisle to retrieve warning cones. Walker then slipped on the spilled liquid. Plaintiff's counsel argued that the pharmacist was negligent for leaving the hazardous spill in the aisle and failing to protect Target's customers.

The defendants denied the allegations. Defense counsel contended that Walker was at fault because she was not paying attention where she was walking.

The day after her fall, Walker woke up with a severe headache. She visited her family physician, complaining of dizziness, blurred vision and pain in her back, left foot and left elbow. She had a CAT scan, which came back as normal. Soon after, she had an EMG and was diagnosed with a status post-cerebral concussion, lumbar strain and sprain, right C5 and left L5 radiculopathy, bilateral C8 and right L5 radiculopathy, right epicondylitis, sprain of the plantar fascia of the left foot and post-concussion syndrome. She began physical therapy, which she underwent through May 2004.  A year after the accident, Walker still complained of blurred vision, headaches, neck and upper back pain, and some numbness and tingling in her upper extremities and lower left leg. She saw neurologist Steven Mazlin for ongoing treatment. Mazlin testified that Walker's condition resulted from her slip and fall, and that the fall exacerbated a previously quiescent migrainous disorder and "unmasked a case of so-called latent MS."Walker was also diagnosed with a disc bulge at L5-S1, for which she underwent chiropractic treatment from February 2004 to February 2006. In 2006, she received three Lidocaine injections and was fitted with orthoses.  In addition, she was diagnosed with depression and anxiety.

Walker sought $54,420 in past medical specials and $9,761 in past lost wages, having missed 18 weeks of work. She sought an unspecified amount for past and future pain and suffering.

After a three-day trial, the jury found Target liable and awarded Walker $250,000 in damages.

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Sunday, March 10, 2013

Fall Over Concrete at Renovated Target Store Leads to Verdict

A Pennsylvania Target Store was the originating site of premises liability lawsuit resulting in a sizable verdict.  In the matter of McCune v. Irwin & Leighton, Co., the plaintiff was expertly represented by Pennsylvania personal injury lawyer Brandon Swartz of top tier Philadelphia law firm, Swartz Culleton

This case arose in the course of Plaintiff's work when he was delivering rubbish containers to a Philadelphia construction site.  During his work, he exited his truck and tripped and fell over a chunk of cement. The plaintiff brought suit against the general contractor and a demolition subcontractor working on a construction project at the site. The defendant general contractor argued that the cement did not constitute a dangerous condition, the plaintiff was comparatively negligent and that it was not responsible for the cement being in the area of the plaintiff's fall.

At the time of the incident, the defendants were working on a project to renovate a Target Store in Philadelphia. The rubbish containers were delivered to a staging area which was designated for that purpose. The plaintiff testified that he pulled his truck into the staging area, opened the door, stepped out and fell over a piece of concrete. The concrete chunk was approximately 6" x 6".  Testimony established that the defendant general contractor had sole responsibility for calling the plaintiff's employer and requesting delivery of the rubbish containers. The plaintiff argued that the defendant general contractor breached its duty to make sure that the staging area was safe prior to calling for the delivery.


The plaintiff called a civil engineer who testified that the plaintiff's position, approximately four feet from the ground in the cab of the truck, precluded him from seeing the construction debris which was under his door. This expert contended that the plaintiff's field of vision was such that the obstacle would not have been visible to him as he exited his truck.

The plaintiff, age 52 at the time, was diagnosed with a ligament tear as a result of the fall. He underwent surgery to repair the ligament and complained of continuing ankle pain and difficulty ambulating. The plaintiff's orthopedic surgeon opined that a future ankle fusion or ankle replacement was possible.
At the time of trial the plaintiff had not returned to work due to the injury. The plaintiff's vocational expert testified that the plaintiff could not return to his former position and is permanently limited to sedentary employment. As a result, the plaintiff claimed a diminished future earning capacity as a result of the ankle injury.

The defendant general contractor maintained that it was not responsible for the condition which caused the plaintiff's fall and the plaintiff could not establish where the piece of concrete had come from or how long it had been in the dumpster staging area. The defense argued that the subcontractor demolition company was performing demolition work and the chunk of concrete at issue was obviously a part of the old section of the building which had been demolished. The defense also contended that the large chunk of concrete was open and obvious and should have been noticed and avoided by the plaintiff when he drove into the staging area.


After a four day trial, the jury found the defendant general contractor 90% negligent and the plaintiff 10% comparatively negligent. The defendant subcontractor was found not negligent. The plaintiff was awarded $825,000 in damages and his wife was awarded $10,000 for her loss of consortium, for a total verdict of $ 835,000, reduced accordingly.

This was a great outcome for the plaintiff given the facts of the case.  Congrats to the plaintiff and attorney Swartz for a great outcome.

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Saturday, March 9, 2013

Costco Sued for Defective Automatic Door

A Pennsylvania Costco was successfully sued for products liability and premises liability as a result of an allegedly defective automatic door.  The plaintiff in this case was well represented by Pennsylvania personal injury attorney Joe Melillo.

In this premises liability lawsuit brought against a Pennsylvania Costco and other, the plaintiff, Lear was seriously injured on December 8, 2004, when he entered a Pennsylvania Costco.  As the plaintiff entered, the store's automatic doors closed on him.The automatic doors of the Costco's Wholesale Store closed abruptly as Lear entered the store, causing him to be thrown to the groud.

Lear suffered a broken hip that left him debilitated and unable to walk. He lived in the Jewish Home after his hospital stay. He developed pressure sore ulcers as a result of his debilitation. The sores became infected, leading to his death from sepsis on June 23, 2005.

The Costco entrance was equipped with a motion sensor that caused the doorway to open. The doorway's photoelectric hold-open beams were positioned at a height above the ground that allowed the doors to close while a pedestrian was partially within the doorway. The family alleged that there was no presence sensor installed with the doorway though the technology was available when Costco and its doorways were constructed. A presence sensor aims to prevent the doorway from closing on pedestrians who move slowly through, or stop within, the doorway area.  

Costco relied on its architect Mulvanny G2 Architecture Corp. to select an appropriate doorway model and features. The plaintiffs family alleged that the architect and Kajima Construction Services Inc., the general contractor that installed Costco's automatic sliding door system, should have understood the nature of Costco's business and the characteristics of its customers. The family claimed that the accident and the plaintiff's injuries were the result of Costco's careless, reckless and negligent actions.

 The defendants agreed to pay the following amounts to the plaintiff's family: $50,000 from Costco; $50,000 from Mulvanny; $35,000 from Kajima; $25,000 Harrisburg Glass; $50,000 Overhead Door Corp.; $50,000 Automatic Door Enterprises. Each party agreed to pay its own attorney fees and costs. The parties admitted no wrongdoing or liability.

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Thursday, March 7, 2013

Great Outcome in Tough Manhole Cover Fall Down

Since I have been reviewing a lot of premises liability slip/trip and fall lawsuit outcomes in Pennyslvania I thought I would write about a great outcome recently obtained by my good friend and awesome Pittsburgh personal injury lawyer, Chris Apessos of Ainsman, Levine & Drexler.

In the case of Alegre v. Folino Construction the plaintiff and attorney Apessos had a legitimate but tough liability case.  Specifically, at about 7 am on September 25, 2010, the plaintiff was walking through a crosswalk in Bellevue when she tripped and fell on an exposed and raised manhole cover.  Before the fall, the defendant contractor had been hired by the Borough of Bellevue to remove bricks from the crosswalk and replace them with an asphalt coating.  As of the time of the fall, the defendant contractor had stripped the bricks exposing and causing to be raised from the ground the manhole cover.  This created a lip sticking up from the ground that ultimately caught the plaintiff's foot and caused her to fall.  The problem was that at the time of the fall, the defendant had not gotten around to asphalting the area such that the manhole cover was, again, flush with the ground.  It is somewhat understandable that the contractor was not able to get everything done at one.  What was unreasonable, however, was the fact that when the defendant finished pulling the bricks that exposed the manhole, they just left the condition for another day.  The defendant failed to put up any warning signs on either side of the crosswalk to alert pedestrians of the change.  Worse yet, the defendant did nothing to highlight the manhole- you often see this done with fluorescent orange spray paint.  Because of this, the raised manhole did not jump out to the plaintiff.  To her, it looked like it was still essentially flush with the ground and did not raise any additional care on her part.

As a result of her fall, the plaintiff suffered a torn meniscus and loosening of her dental implants- a pretty significant fall.

Despite the above, this is a very tough case to win.  Juries place a big burden on plaintiffs to watch where they are going.  In hindsight, jurors, like all of us, often think "well I would have seen that...why didn't she?"  And defendant's prey on this sentiment with arguments of "open or obvious" and comparative negligence that the plaintiff herself failed to exercise due care.

After a close arbitration verdict in favor of the defendant, attorney Apessos appealed the case to the Allegheny County general docket.  The case was tried two days ago in front of Judge Colville.  After hearing all the evidence, Judge Colville entered an order in favor of the plaintiff in the amount of $22,950.  Judge Colville, which seems completely fair under the circumstances all assessed that the plaintiff was 40% negligent herself.  As such, the final verdict was reduced to $13,770- a great outcome nonetheless.

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