Tag Archives: James P. Goslee

Birth Injury, Medical Malpractice

Bringing a Birth Injury Lawsuit in Pennsylvania

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Introduction

If your child has suffered a birth injury in Pennsylvania, you may be considering filing a lawsuit against the hospital or doctor responsible for the injury. Birth injuries can range from minor to severe, and they can have long-term physical, psychological, and financial consequences for your family. Knowing what to expect when bringing a birth injury lawsuit in Pennsylvania can help you prepare for the legal process and manage the emotional toll. This guide will provide an overview of the steps to filing a birth injury lawsuit in Pennsylvania.

Step 1: Review the Statute of Limitations

The statute of limitations determines the amount of time you have to file a lawsuit in Pennsylvania. Generally, the statute of limitations for medical malpractice cases in Pennsylvania is two years. However, if your child was under the age of 18 when the injury occurred, the statute of limitations will not begin to run until they reach the age of 18. It is important to be aware of the statute of limitations to ensure that you do not miss the deadline to file your lawsuit.

Step 2: Collect Evidence

To build a strong case, you will need to collect evidence to prove your claim. This can include medical records, witness statements, and other forms of evidence that can prove that the hospital or doctor was negligent and caused your child’s injury.

Step 3: Set Up a Consultation with a Birth Injury Attorney

Once you have collected the necessary evidence, it is time to set up a consultation with a birth injury attorney. During the consultation, the attorney will review your evidence and discuss the potential for a successful lawsuit. It is important to choose an attorney that has experience handling birth injury cases in Pennsylvania.

Step 4: Determine Which Parties to Name in Your Lawsuit

It is important to determine which parties you will name in your lawsuit. Depending on the circumstances and the evidence, you may be able to name the hospital, doctor, or both in your lawsuit.

Step 5: File the Lawsuit

Once you have determined the parties to name in your lawsuit, you can file your lawsuit. This involves filing a complaint with the court and serving the defendants with the complaint. The defendants will then have a certain amount of time to respond to the complaint.

Step 6: Prepare for Mediation

Mediation is a process where the parties come together to try to resolve the dispute without going to trial. A mediator, who is usually a lawyer, will facilitate the mediation. The goal is to resolve the dispute as quickly and as amicably as possible.

Step 7: Prepare for Trial

If mediation is not successful, the case will go to trial. During the trial, both sides will present evidence and witnesses to prove their case. The judge or jury will then decide who is responsible for the birth injury.

Conclusion

Bringing a birth injury lawsuit in Pennsylvania can be a challenging and emotional process. Knowing the steps to filing a birth injury lawsuit in Pennsylvania can help you prepare for the legal process and manage the emotional toll. It is important to consider the statute of limitations and to collect evidence, set up a consultation with a birth injury attorney, determine the parties to name in your lawsuit, file the lawsuit, prepare for mediation, and prepare for trial.

James Goslee is an experienced medical malpractice, personal injury and product liability trial lawyer in Philadelphia.  James Goslee can be reached at https://cprlaw.com/attorneys/james-p-goslee/ or on linked in at https://www.linkedin.com/in/james-goslee-8214415/

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Pennsylvania Superior Court Confirms a Fictional “Lord of the Rings” Character Can’t File a Lawsuit

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Who is allowed to file a lawsuit in Pennsylvania. This is a straightforward, but often overlooked question. An amusing opinion by the Pennsylvania Superior Court offers some insight. Short answer – definitely not fictional characters from Lord of the Rings.

In Ex. Rel Six et. al v. Gustafson, et al, two individual plaintiffs filed suit to regain possession of six storage containers that had, in prior landlord tenant litigation, been awarded to the Gustafsons. The named, individual plaintiffs were “Thomas E. Bombadil” and “Timothy D. Parr.” But these plaintiffs had an existential problem having nothing to do with property law or rules or procedure. They didn’t exist.

The trial court dismissed the matter after it was discovered that “Thomas E. Bombadil” was not a living, breathing person, but a fictional character from the “Lord of the Rings.” Likewise, as pointed out by the trial court, “Timothy D. Parr” did not exist and, in various pleadings, “regularly denied his own existence.”

The fictional plaintiffs appealed to the Superior Court. But, as you can imagine, the Superior Court was unmoved. In affirming the trial court’s dismissal the Superior Court offered the following insightful and humorous analysis:

In a typical case, we would dispose of an appeal by addressing the merits of cognizable claims and denying relief when none is due. We cannot even get to that point here, however, because we can only consider claims asserted by a real person or entity, and “Appellants” do not dispute the trial court’s findings that they do not exist.

There you have it. Who can file a lawsuit in Pennsylvania? Real people with real injuries. And definitely not Tolkien characters!

https://www.linkedin.com/in/james-goslee-8214415/

Insurance Law

Pennsylvania Supreme Court’s First Insurance Bad Faith Decision a Big Win for Plaintiffs

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Supreme Court Wades Into Bad Faith

On Friday, the Pennsylvania Supreme Court delivered a groundbreaking decision in Rancosky v. Washington Nat’l Ins. Co., the first decision by the Court interpreting the requirements of Pennsylvania’s Bad Faith Statute, 42 Pa. C.S. § 8371. The Supreme Court’s decision in Rancosky was critical for two reasons.  First, it formally adopted the legal test set for bad faith, first established by the Pennsylvania Superior Court 23-years ago in Terletsky v. Prudential Property & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994).  In Terletsky, the Superior Court held that in order to recover in a bad faith action, the plaintiffs must establish by clear and convincing evidence that: (1) the insurer did not have a reasonable basis for denying benefits under the policy; and (2) the insurer knew of or recklessly disregarded its lack of a reasonable basis. More significantly, the Supreme Court also held that the insurer’s motive of self-interest or ill will is not a requirement to recovering under Pennsylvania’s Bad Faith Statute. While evidence of self-interest or ill will on the part of the insurer is probative in considering the second prong of Terletsky, the Court held that “evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.” This ruling is important as the Supreme Court explicitly rejected efforts to raise the threshold evidentiary showing necessary to prove insurance bad faith.

Rancosky v. Washington National Insurance

The Rancosky case arose out of Washington National Insurance Company’s, successor by merger of Conseco Health Insurance Company, denial of insurance benefits to plaintiff for failure to pay premiums.  The plaintiff in Rancosky brought claims of breach of contract and bad faith, which were bifurcated, and plaintiff’s bad faith claim proceeded to a bench trial. The trial court determined that the insurer’s handling of plaintiff’s claim was sloppy and even negligent, but that plaintiff failed to establish that the insurer lacked a reasonable basis for denying benefits under the insurance policy because the plaintiff did not prove the insurer had a motive of self-interest or ill will. The trial court entered judgment in favor of the insurer on plaintiff’s bad faith claim. The Pennsylvania Superior Court vacated the trial court’s judgment. Consistent with its previous decisions, the Superior Court held that motive of an insurer’s self-interest or ill will is probative of the second prong of Terletsky, but is not a prerequisite to recovery. The Superior Court went further and determined that, based upon its review of the record, the evidence did not support a finding that the insurer had a reasonable basis for denying plaintiff’s benefits under the policy. The Superior Court found that the insurer lacked a reasonable basis for denying the plaintiff’s benefits to meet the first prong of Terletsky and remanded to the trial court for a determination on the second prong.

Although the Supreme Court found that Superior Court erred in making the determination of the first prong from Terletsky, that the insurer lacked a reasonable basis for denying the plaintiff’s benefits, the Court agreed with the Superior Court in adopting the two (2) prong test of Terletsky.  Further, the Supreme Court sided with the Superior Court and concluded that in proving that an insurance carrier acted unreasonably and recklessly, a plaintiff does not need to show that an insurer’s conduct was motive of self-interest or ill will. The Court remanded to the trial court for consideration of plaintiff’s bad faith claim in accordance with the test set forth by the Court.

No “Ill Will” Needed for Bad Faith

The significance of Rancosky cannot be understated.  Given the Pennsylvania Supreme Court’s ruling, insurers will no longer be able to rely upon a failure to show self-interest or ill will to defeat bad faith claims.  As such, insureds do not need the “smoking gun” evidence some courts had previously demanded. This is a big win for insureds, as it preserves the ability to recover under the Bad Faith Statute. Had the Court found the other way, with motive of self-interest or ill will being a prerequisite to a bad faith claim, it would have effectively put an end to bad faith claims.  Indeed, as Justice Bear stated in his opinion, if a plaintiff were required to show that an insurance company acted with ill will, bad faith claims would be limited to “the most egregious instances” and “only where the plaintiff uncovers some smoking gun evidence indicating personal animus towards the insured.” Although it is still true that insureds have an uphill battle in establishing a bad faith claim given the clear and convincing evidentiary standard, the Supreme Court, with its well-reasoned decision, permits bad faith claims to continue. Therefore, insurers permitting delay in adjusting claims, inadequate investigations and/or unreasonable interpretations of policy provisions, all of which fail to reach the level of self-interest or ill will, continue to be subject to bad faith claims.

This article was co-written with James G. Begley, Esq.  James Goslee is a trial attorney in Philadelphia and can be reached at https://gosleelaw.com/about/

Courts, James P. Goslee

Where to File a Lawsuit? Proper Venue in Pennsylvania

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City Hall

Where to File a Lawsuit in Pennsylvania

Where to file a lawsuit?  It is one of the first questions a trial attorney asks when representing a new client.  And it is one of the most important questions.  The county in which a lawsuit is brought can have a major impact on both the value of the claim and how quickly it can be resolved. For instance, some counties are known for higher verdicts, which can drive up the settlement value of a claim.  Also, civil litigation moves at a different pace depending on which county you find yourself in.  Some counties, like Philadelphia, move cases quickly and a plaintiff usually gets a trial date within 1 or 2 years of filing suit.  But, in other counties, it can be 4 or 5 years before there is a trial date and thus take half a decade (or longer) before a claim can be resolved.  Because the venue of litigation is so important and directly impacts the value of a claim and how quickly it can be resolved, it is important for trial lawyers to identify the best viable venue before filing a Complaint.

Naturally, corporate defendants have the opposite incentive as plaintiffs.  If possible, corporate defendants want to make sure a lawsuit is filed in a jurisdiction known for small jury verdicts and a slow docket.  Because venue is so important, the Pennsylvania Rules of Civil Procedure set out specific rules controlling where a corporate defendant can be sued.  Under Rule 2179, a corporation can be sued:

  • in any county where its principal place of business is located;
  • in any “county where it regularly conducts business”; or
  • in the county where the accident occurred.

In cases where a plaintiff files suit in the defendant’s home county, or where the accident or incident giving rise to the claim took place, there is nothing really to fight over.  In these cases, venue is proper and the corporate defendant cannot object.  The area of contention is when a plaintiff files a claim in a county where the incident didn’t happen and where the defendant does not have a principal place of business, but where the plaintiff alleges that the defendant “regularly conducts business.”

“Regularly Conducting Business”

What does it mean to “regularly conduct business” in a county?  Over the years courts in Pennsylvania have issued rulings clarifying what that means and increasing the burden on a plaintiff to prove that a defendant “regularly conducts business” in the chosen jurisdiction. To this end, the Pennsylvania Superior Court has adopted a two prong “Quality and Quantity” test.  In determining whether a corporate defendant “regularly conducts business” in a specific county, courts must consider both the quantity or business conducted in the county, and the quality of the defendants contacts with the forum.  The Superior Court explained this test in Zampana-Barry v. Donaghue:

In determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis. A business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established. Quality of acts will be found if an entity performs acts in a county that directly further or are essential to the entity’s business objective; incidental acts in the county are not sufficient to meet the quality aspect of the test. Acts that aid a main purpose are collateral and incidental while those necessary to an entity’s existence are direct.

An issue that has arisen over the years involves cases where a defendant “solicits” business in a specific county, but does not actually conduct business “directly” in that county. This sort of “indirect” contact often becomes an issue where a car manufacturer is a defendant.  Car manufacturers, with limited exceptions, do not sell automobiles directly to customers.  Rather, they sell cars to consumers through independent automobile dealerships. And although these manufactures extensively advertise and get the economic benefit of sales to customers in various counties, they have successfully managed to get cases removed from the plaintiff’s chosen forum because they do not have “direct” contact with that county. To this end, the Pennsylvania Supreme Court has specifically ruled that “mere solicitation” in a particular county does not amount to conducting business. Purcell v, Bryn Mawr Hospital.

Faust v. BMW

Recently, the Superior Court of Pennsylvania had an opportunity to consider proper venue in a case involving a car manufacturer. In Faust v. Bayerische Werke AG and BMW of North America, the plaintiff brought a claim for a faulty airbag against BMW in Philadelphia.  BMW filed a preliminary objection arguing that venue in Philadelphia was not proper because, under existing Pennsylvania law, it does not regularly conduct business in the City. The plaintiff responded with record evidence showing that BMW regularly advertises its cars in Philadelphia and, through independent licensed dealerships, sells and leases a significant amount of cars to Philadelphia citizens.

Despite an obvious argument as to fairness (i.e. BMW makes a lot of money selling and leasing cars to Philadelphia citizens, and intentionally markets in Philadelphia, why can’t they be sued there?), 2 of the 3 judges on the appellate panel upheld the trial court’s ruling transferring the case to Lancaster County.  The majority opinion cited BMW’s primary business purpose as follows:  “to sell or lease vehicles to individual consumers, which is facilitated by a national distribution network of authorized, affiliated, and independently-owned BMW dealership.”  According to the majority, because BMW does not “directly” sell or lease cars to Philadelphia residents, but instead does so through independent dealerships, it cannot be said that it conducts business in Philadelphia.  Further, the majority held that although BMW regularly markets in Philadelphia, that sort of conduct is mere “solicitation” insufficient to allow for proper venue.

Time to Reconsider the Law?

The majority opinion in Faust is not wrong from a legal perspective. The majority followed prior precedent set by the Supreme Court.  But it is unfortunate because it is expanding a legal rule that is unprincipled and at odds with the realities of modern economics.  BMW makes a tremendous amount of money from customers in Philadelphia. Why should it matter if that money comes directly from Philadelphia citizens via direct sales, or passes through a dealership acting as a middle man?  If the company is going to receive the bottom line economic benefit of doing business with Philadelphians, and intentionally market its goods in Philadelphia, why is it unfair to hold the company to account in Philadelphia?

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

 

James P. Goslee, Medical Malpractice

Amending a Civil Complaint in Pennsylvania After the Statute of Limitations? Beware of the “New Theory of Liability” Myth

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For trial lawyers, drafting and filing a Civil Action Complaint is an obvious and important step in litigation. The Complaint is the document that literally starts a lawsuit. But it is more than that. Much more. Although it is filed at the very beginning of a case, the Complaint, and specifically the allegations and causes of action set out in the Complaint, is the foundational document that controls the scope of the litigation and the availability of remedies. So you better get it right.

A plaintiff can only purse the specific claims (causes of action) against a defendant that are “pled” (i.e “alleged”) in the Complaint. If you don’t plead a cause of action, you cannot pursue it and you cannot recover for it. So needless to say, it is important to understand what causes of action you have before filing a Complaint.

Unfortunately, what constitutes a “cause of action” is not always clear and a number of sloppy Superior Court opinions in recent years have made it even more challenging.

“Causes of Action”

But lets start with the basics. What is a cause of action and why does it matter? Say, for example, you undergo surgery and things go badly. Sadly, you are permanently injured. Assume also that you believe your surgeon did two things wrong that caused your injury. First, he made a mistake during surgery and that mistake contributed to your injury. Second, the surgery he performed was different from the surgery you agreed on. In this scenario, you have at least two different causes of action. One cause of action is medical negligence (the doctor made a mistake). The second cause of action is one for lack of informed consent (the doctor did not have permission to perform the surgery). In this scenario, you need to include both causes of action in your Complaint. If you forget to plead one of the causes of action and the statute of limitations expires, you are out of luck.

“The Myth”

But in recent years, lawyers and courts have blurred the line between a cause of action (which needs to be pled), and a theory of liability, which does not. What do I mean? Well lets go back to our previous example. Say you file a Complaint after your surgery alleging both medical negligence and lack of informed consent. Assume further that your claim for medical negligence is that the doctor accidentally cut a specific nerve in your knee during surgery leaving you with limited function in your leg. When you file your Complaint you include an allegation that the doctor accidentally cut nerve A. Turns out though, that the doctor did not accidentally cut nerve A. He used the wrong medical equipment which led to your nerve injury. In either case nerve A is injured and you still can’t use your leg. If you wanted to amend your Complaint after the statute of limitations, under Pennsylvania law you absolutely should be permitted to do so. Why? Because you are not alleging a new cause of action (your claim is still that the surgeon committed medical negligence that caused nerve damage), you are only revising your theory of liability (wrong equipment instead of accidentally cutting a nerve).

Over the years, both trial courts and even the Superior Court have begun to blur the distinction between a “cause of action” and a “theory of liability.” The result is that courts have disallowed amendments after the statute of limitations, even when those amendments do not change the cause of action, but merely seek to alter or expound upon the theory liability. For instance, the Superior Courts decision in Reynolds v. Thomas Jefferson Hospital flat out ignores the distinction between a cause of action and a theory of liability. That decision is wrong, but still has not been corrected.
The upshot is that it is now common practice for defense attorneys to object to motions to amend a complaint, claiming that a plaintiff should not be permitted to allege a “new theory of liability” after the running of the statute of limitations. This is completely wrong. It is a modern legal myth in desperate need of correction.

So lets work on that correction!

The “Real” Law

The Pennsylvania Supreme Court has long held that the “right to amend should be liberally granted at any stage of the proceeding  unless there is an error of law or resulting prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). The reason for freely allowing amendments is to “secure a determination of the case on the merits whenever possible, and not enforce technical rules of pleading.” In re Francis Edward McGillick Foundation, 594 A.2d 322, 329 (Pa. Super. 1991), aff’d in part, rev’d in part on other grounds, 642 A.2d 467 (Pa. 1994).

Not only should amendments be liberally permitted, but trial courts have broad discretion to allow amendments that include more specific factual pleadings. See, e.g., Pike Cnty. Hotels Corp. v. Keifer, 396 A.2d 677, 681 (Pa. Super. 1978). The Pennsylvania Superior Court has observed that “the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise detail.” Id. at 681.

Contrary to the defense counsel “new theory of liability” myth, it is blackletter law that a Complaint does not limit plaintiff to a specific theory of liability. Indeed, as explained by the Pennsylvania Supreme Court in Kusis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974):

The notion that a complaint weds a plaintiff to a particular theory of liability is foreign to Pennsylvania pleading. Ours is a system of fact pleading, not “theory” pleading; a plaintiff is free to proceed on any theory of liability which the facts alleged in his complaint will support. Id. at 918, n.8; see also Zitney v. Appalachian Timber Prods., 72 A.3d 281 (Pa. Super. 2013).

Although a plaintiff may not assert a new “cause of action” after the statute of limitations has run, if an amendment “merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.” Connor v. Allegheny General Hospital, 461 A.2d 600, 602 (Pa. 1983). The Pennsylvania Superior Court addressed the issue of a “new cause of action” in Junk v. East End Fire Dep’t, 396 A.2d 1269 (Pa. Super. 1978), explaining:

A new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Id., at 1277.

I cite this case law because it is an accurate reflection of Pennsylvania law governing pleadings. It also obliterates the growing myth that a theory of liability is the same thing as a cause of action.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

 

Hospital Injuries, Medical Malpractice

Medical Negligence, MCARE Act and Future Medical Expenses in Pennsylvania

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Credit: Darastar, Everystockphoto.com

Back in March 2002, Pennsylvania joined a host of other states in passing legislation aimed at insulating medical providers from liability for their negligence. Rather than accepting accountability for needless injuries caused by carelessness, physicians and large medical providers successfully lobbied to have special laws passed. Laws intended to make it more difficult for injured patients to receive compensation. Or stated another way, special laws that would make it easier for medical providers to get off the hook for their misconduct.
Citing dubious studies suggesting trial lawyers were responsible for escalating medical insurance premiums in the State (as opposed to formation and consolidation of giant health networks that placed patient care a distant second to growth and profitability), Pennsylvania passed the Medical Care Availability and Reduction of Error Act (“MCARE”). MCARE, despite its pretentious title, was a clumsily drafted tort reform act.
Among the various roadblocks to seeking justice erected by the MCARE Act was a provision that arguably makes it less profitable for trial lawyers to represent people injured by medical negligence.
Virtually all lawyers representing injured clients do so on a contingency basis. Most injured clients are unable to pay a lawyer on an hourly basis, or front the costs of litigation, which can easily run into the hundreds of thousands of dollars. Contingency fee agreements provide a solution. Clients pay nothing, no fees, no costs unless there is a recovery. If litigation does result in a successful recovery, the attorney gets an agreed upon percentage of the net recovery, normally one-third.
In medical malpractice cases, as in most personal injury cases, plaintiffs can recover (among other things) the cost of future medical expenses. Historically, juries would award future medical expenses in a lump sum amount. In other words, if a jury found a defendant negligent, it would be instructed to: (1) determine how long they thought a plaintiff would live; (2) the amount of medical expenses the injured plaintiff would incur per year; and (3) multiply those two numbers and award that amount to the plaintiff in a lump sum.
Defendants often objected to this method of calculation with a credible argument. If a jury awarded a plaintiff a specific sum of money for yearly medical expenses assuming the plaintiff would live another 10 years, but the plaintiff only ended up living 2 more years, why should they have to pay the entire amount?
The MCARE Act changed this paradigm by prohibiting juries from awarding future medical costs in a lump sum. Instead, each verdict sheet should contain a specific amount of future medical expenses, itemized per year (i.e., 2018: $100,000; 2019: $102,000). The MCARE Act also specifies that a plaintiff is only entitled to future medical awards if they are alive. So if a jury awarded a plaintiff future medical awards from 2017 to 2021, and the plaintiff died in 2018, he would not be permitted to receive the amounts awarded for 2019-2021.
But the MCARE Act threw in one more twist. Instead of a plaintiff lawyer receiving a previously agreed percentage fee for the future medical component of an award, the ACT operated to reduce the fee of the lawyer. Under the MCARE Act, future medical expenses awarded by the jury need to be reduced to present value for purposes of calculating attorney fees. So, using our previous example, if a jury awarded $102,000 for future medical expenses in 2019, that amount needs to be reduced to 2017 dollars (which will be something less than $102,000), and the lawyer will receive only a percentage of that lesser amount.
But the language of the MCARE Act is so unclear, for years defense lawyers have been arguing (frivolously) that the entire award should be reduced to present value (not just the amount awarded in attorneys fees). The upshot of this argument is that a medical defendant found liable for future medical expenses years into the future should only have to pay the present value of that award.
With respect to future medical costs, the MCARE Act states:
(b) Future Damages
(1) Except as set forth in paragraph (8), future damages for medical and other related expenses shall be paid as periodic payments after the proportionate share of counsel fees and costs based upon the present value of future damages awarded pursuant to this subsection. 40 P.S. §1303.509.
Now admittedly, this provision is very poorly written. And defense counsel have seized upon this poor draftsmanship to argue that juries need to reduce the amount of future medical awards to present value. The problem with this argument is that it is inconsistent with the purpose of the MCARE Act and really doesn’t make any sense.
Contrary to the defense bar’s arguments, the MCARE Act does not require reducing the future medical costs to present value before submitting them to a jury. In fact it requires just the opposite. Future medical costs are only reduced to present value after a verdict in order to award attorney’s fees. See Pa. SSJI (Civ.) § 14.150 (commentary).
This result is also compelled by logic. One of the benefits conferred by the MCARE Act to medical providers is that an award of future medical damages is paid out in yearly increments and only if the plaintiff is still living. Thus, considering the yearly amounts awarded by the jury are only paid in the future and only if the plaintiff is living, it would make no sense for the jury to reduce its award to present value before entering the verdict.
Judge Rambo reached this exact conclusion in a case of first impression in the Middle District of Pennsylvania in 2014. See Late v. U.S., No. 13-0756, 2014 U.S. Dist. LEXIS 112999, at *5 (M.D. Pa. Aug. 14, 2014). Two years later in Shiflett v. Lehigh Valley Hospital, Judge Carol McGinely reached the same conclusion.
But it was not until last month that the issue was finally (I think) put to rest. In Tillery v. CHOP, the Superior Court finally had an opportunity to address the issue. Following the logic of Judges Rambo and McGinley, the Superior Court rejected any argument that the MCARE Act required future medical costs to be reduced to present value by the jury. To the contrary, the Superior Court held that future medical costs are only reduced to present value for purposes of calculating attorneys’ fees.
James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

Hospital Injuries

Hospital Falls, Injuries and Corporate Negligence in Pennsylvania

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Photo Credit: jynmeyer

The risk of hospital acquired infections has generated a lot of publicity in recent years.  And rightfully so.  Infections can be dangerous and hospitals have a poor track record of keeping patients safe.  This issue has garnered particular attention recently given the growing list of antibiotic resistant bacterium and recently discovered, widespread contamination of crucial medical equipment (e.g., https://jamiegoslee.com/2016/09/13/unsuspecting-patients-exposed-to-deadly-mycobacteria-infection/).  But one of the most persistent and significant risks facing hospital patients remains overlooked, under-reported and preventable.  What is this risk?  Falling.

Believe it or not, the biggest risk you likely face going into a hospital for surgery is not an infection, surgical complication or medical malpractice, but a post-operative fall.  This is especially true for older patients undergoing procedures involving anesthesia.  Older patients are especially sensitive to anesthesia and the drugs well known cognitive side effects.  It is not uncommon for patients to have some disorientation as anesthesia begins to wear off.  But older patients are at an increased risk for confusion, often unable to remember or follow instructions (such as “don’t get out of bed”) for days after receiving anesthesia. Also, older patients often remain physically infirm and unsteady for days (sometimes weeks) after surgery.  In short, older patients are not only more likely to fall, they are more likely to suffer serious injuries.

For decades, hospitals have recognized the danger patients face if they fall. For decades’ hospitals recognized that too many patients were falling down and suffering catastrophic injuries.  Many of these patients were suffering injuries that left them permanently disabled.

Hospital falls and injuries became a national epidemic. To address this problem, the Joint Commission on Accreditation of Health Care Organizations (“Joint Commission”) requires accredited hospitals to adopt policies and procedures to reduce the risk of patient falls.  These policies and procedures are called “fall precaution guidelines.”  And nurses are primarily responsible for implementing these guidelines.

Normally, fall precaution guidelines utilize a two-step process. The first step for nurses is to identify which patients are at an increased risk for falling.  The second step is for nurses to implement specific tools or interventions to prevent high risk patients from falling.

One of the most popular, evidence based fall prevention guidelines used by hospitals is called the Hendrich II Model.  The Hendrich II is popular because it has a predictive accuracy rate of about 70%.  In other words, it is correct in identifying high risk patients about 70% of the time.

Here is how it works. At least once every 24 hours, nurses rounding on patients are supposed to assign a fall score to their patients.  A fall score is a numeric score that is used to identify who is at risk for falling.  Following the guidelines, nurses are supposed to consider various factors that have been shown to put patients at risk for a fall.  Each factor has a number associated with it.  The nurses go down the list of factors and check the box next to each one that applies to a patient.  They then add up the numbers associated with each box they check, and that is a fall score.

So for instance, patients who are unable to stand up on their own are at higher risk for falling.  If you are a patient who can’t stand up on your own (for instance if you just had major knee surgery), under the Hendrich II model, you get a fall score of 4.  Certain medicines can also increase your risk of falling. Under the Hendrich II if you are taking certain medicines, you get additional points. If you are on pain medicines, you may get 2 additional points because pain medications can cause confusion, drowsiness and balance problems.

Using the Hendrich II, a patient with a score of 5 or higher is considered a “high fall risk.”  And once a patient is identified to be a high fall risk, the guidelines have a list of preventative measures that can be used to reduce the risk of a fall or injury.  For example, nurses rounding on high-risk patients should:

  • Instruct the patient that under no circumstances should they try to get out of bed without first notifying a nurse.
  • Make sure all the nurses and staff are aware that the patient is a fall risk. Preventing falls takes a team effort, so the entire staff must be aware of the risk.
  • Make sure a call bell is within easy reach of the patient so the patient does not need to get out of bed to contact a nurse.
  • Make sure that the patients bed is in the lowest position possible. This is important because if a patient does try to stand up and falls, they are closer to the ground.
  • Make sure the patient has on non-slip socks.
  • Using a bed alarm. A bed alarm is an alarm that goes off if a high-risk patient tries to get out of bed. This is important for two reasons. One, it serves as an audible reminder to patients that they should not try to stand up. Second, it alerts the nursing staff so that they can enter the room and assist the patient.
  • For elderly patients, particularly those who recently had anesthesia or are taking medications known to cause drowsiness or disorientation, notify the patients loved one that they have been identified as a fall risk and encourage them to stay with the patient. This is important because elderly patients can become confused, especially at night and try to get out of bed.  Having a loved one nearby can reorient a patient and keep them in bed.

Fall precaution guidelines have proven effective for reducing the risk of patient falls.  But they are only effective if they are used.  What is troubling is that many hospitals go to great lengths to formulate and “officially” adopt fall precaution procedures to comply with the Joint Commissions mandate, but don’t actually use those procedures and do not adequately train nurses to use them.  In other words, hospitals create the procedures to get the Joint Commission off their back and then put them on a shelf, never to be seen again. Unenforced policies are worth less than the paper they are printed on.

And this problem, of formulating, but not enforcing fall prevention procedures brings me to a critical legal issue in Pennsylvania.  For 30-years Pennsylvania has recognized that hospitals owe non-delegable duties to ensure the safety of their patients.  Indeed, since the seminal case of Thompson v. Nasson, hospitals have been subject to direct negligence (as opposed to the vicarious negligence of its staff) for breaching 4 specific duties.  These duties include the following:

(1) a duty to use reasonable care in the maintenance of safe and adequate facilities
and equipment;
(2) a duty to select and retain only competent physicians;
(3) a duty to oversee all persons who practice medicine within its walls as
to patient care; and
(4) a duty to formulate, adopt and enforce adequate rules and policies to ensure
quality care for patients.

The last duty, the duty to formulate, adopt and enforce rules and policies has particular importance in hospital fall cases. This is true because, as noted above, hospitals are good at adopting fall prevention policies, but often fail to enforce them (which requires allocation of time and resources).  But a review of the case law in Pennsylvania shows that direct negligence cases involving the duty to formulate, adopt and enforce policies and procedures focus primarily on whether policies and procedures were adopted and whether they were adequate.  There is almost no case law dealing with a frequently encountered scenario where a hospital adopts adequate policies, but does not require or adequately train its nurses to use them.

The lack of precedent on the issue is likely the result of lawyers not advancing this theory through trial. For whatever reason, the focus of plaintiffs’ lawyers has been on whether a hospital has procedures and whether those procedures work. In my opinion this is a mistake.  As noted above, even the best policies and procedures are pointless if they are not used.  And although not presented with the square issue, the Pennsylvania Supreme Court has made clear that a hospital’s failure to actually enforce its policies can give rise to a claim of negligence: “hospitals [have] obligations to observe, supervise, or control a patient’s treatment approved by multiple physicians, and to apply and enforce its consultation and monitoring procedures.”

Given the prevalence of injuries caused by hospital falls and the recurring pattern of hospitals not enforcing policies aimed at preventing these occurrences, lawyers would be wise to pursue a broader approach in representing injured clients.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

Constitution, Courts, James P. Goslee

High Profile Lawsuit Against Attorney General Kathleen Kane Dismissed (For Now)

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Earlier this week a federal district court judge dismissed a high-profile lawsuit against Attorney General Kathleen Kane brought by former employees.  But the legal reasoning of Judge Harvey Bartle in dismissing the claims is probably less interesting than his summary of the allegations, which provide a detailed look at an evolving political grudge match between Pennsylvania’s sitting Attorney General and a high level State prosecutor.

I have written about the ongoing legal/political battle between Attorney General Kathleen Kane and former prosecutor Frank Fina before, see http://wp.me/p6DFYU-2g.   Judge Bartle’s opinion sheds more light on the origin of this controversy and his ruling resolves, at least temporarily, some of the contentious civil claims being made against Attorney General Kane.

The lawsuit in question was brought by Fina and a few other former employees of the Attorney General’s Office.  Fina and the other plaintiffs sued Attorney General Kane claiming she retaliated against them for exercising their right to free speech and defamed them publically.  Judge Bartle summarized the factual allegations underlying Fina’s lawsuit, which more or less go as follows:

In 2012, Kathleen Kane announced her candidacy for Attorney General.  Around the time she announced her candidacy, allegations that Jerry Sandusky had been molesting children dominated the news. As part of her platform, Kane criticized the OAG’s handling of the Sandusky investigation under Tom Corbett’s leadership. Specifically, she claimed the OAG’s office both delayed charging Sandusky and failed to allocate the appropriate resources to the investigation.  As part of her campaign for Attorney General, Kane promised she would “investigate” the OAG’s handling of the Sandusky investigation. 

When Kane assumed office in January 2013, Fina (who handled the prosecution of Sandusky) was overseeing a long-running bribery investigation. As part of the investigation, Fina was utilizing an informant named Tyron Ali.  Ali had signed a cooperation agreement with the OAG’s office and, in exchange for avoiding prosecution, was recorded offering bribes to various Philadelphia officials.   According to Fina’s lawsuit, he immediately informed Kane that she could not oversee the investigation because she had a conflict of interest.  According to Fina, the investigation could potentially implicate Joshua Marrow, a friend and former campaign employee of Kane’s.

Kane disagreed with Fina and immediately suspended the investigation.  She publically claimed that the investigation run by Fina had improperly targeted minorities and, as such, was discriminatory and could not be prosecuted.  For their part, Fina and the other plaintiffs made statements critical of Kane and denying that the investigation was racially motivated or flawed.

Around the same time, Kane began her investigation into the Sandusky prosecution.  A report summarizing the inquiry into the Sandusky investigation was completed in May 2014. The same day the report was released publically, Kane made public statements claiming that Fina and the other plaintiffs improperly delayed the prosecution of Sandusky and, as a consequence, Sandusky had an opportunity to molest two additional minors.   In response, Fina held a press conference where he maintained that Kane’s investigation was a sham and the report was false. 

Fina’s Complaint alleged that in response to his criticisms, Kane launched a retaliatory conspiracy to besmirch his record.  Fina claimed that Kane illegally leaked confidential grand jury records from a 2009 grand jury investigation into the former head of the Philadelphia chapter of the NAACP, J. Whyatt Mondesire.  That grand jury investigation ended without indictment.  Kane believed the grand jury records she leaked proved that it was Fina’s misconduct that resulted in the failed grand jury investigation.  The grand jury materials were turned over to Daily News Reported, Christopher Brennan.  Brennan, in turn, used the material to write a story accusing Fina of impeding and improperly terminating the investigation into Mondesire.   

The problem with leaking confidential grand jury information is that it is illegal. When Fina learned of the leak, he reported it to the Supervising Judge of the grand jury.  Fina was then called as a witness into a grand jury investigation into the leak.  Before he could testify, however, he was confronted by one of Kane’s employees who, allegedly, attempted to physically intimidate him.

Kane was criminally charged with leaking the grand jury information and is awaiting trial.  However, according to Fina’s Complaint, Kane further retaliated against him by kicking off the porn-gate controversy http://wp.me/p6DFYU-2g.  In short, according to the Complaint, Kane tipped off reporters that Fina had received pornographic and otherwise inappropriate emails on his work computer. Fina’s Complaint alleged that Kane “selectively” released a portion of emails to emphasize his role in the scandal. 

According to the Complaint, Kane also appeared on CNN and suggested that she had uncovered emails to and from state employees that were pornographic, racist and misogynistic. During the interview she suggested that some of the emails contained child pornography, an allegation her office later retracted.

Fina and his fellow plaintiffs alleged that Kane’s conduct in: (1) criticizing the bribery investigation as racially motivated; (2) leaking grand jury material; (3) releasing allegedly improper emails was done in retaliation for their public criticisms of Kane’s performance. According to Fina and the other plaintiffs, this retaliation was illegal and violated their First Amendment rights.  Fina and the other plaintiffs also brought claims under state law for defamation.

Judge Bartle dismissed all of the Section 1983 (First Amendment) claims because Kane’s alleged retaliatory conduct was not significant enough to give rise to a lawsuit.  For a public official to be held accountable for retaliating against an employee exercising rights protected by the First Amendment, the retaliation must involve a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will be immediately followed.”  In this case, according to Judge Bartle, Kane’s criticisms of Fina did not involve threats of sanction or punishment.  Rather, according to Judge Bartle:

“Fina was not terminated, demoted, disciplined, or subjected to any other adverse employment action as a result of his criticisms of Kane. Instead, he merely bore the effects of a generalized critique of an investigation in which he took part under a former Attorney General.”

Judge Bartle found plaintiffs’ claim that Kane retaliated against them by releasing emails containing inappropriate and pornographic material absurd, holding that “it would defy logic to conclude that Kane violated the constitutional rights of plaintiffs by bringing to light their use of state-owned computers and email systems to exchange pornography.”

Judge Bartle also dismissed the plaintiffs’ claims for defamation, but without prejudice.  Having dismissed all of the federal claims for retaliation, Judge Bartle declined to retain jurisdiction over plaintiffs’ claims for defamation.  Those claims, presumably, will be brought in state court.

Acknowledging the political back story to the lawsuit, Judge Bartle concluded his opinion by noting as follows:

“In essence, the [plaintiffs’ Complaint] details a long-standing political battle between the Attorney General of Pennsylvania and former high-ranking state officials who served in the administration of her adversaries.  The battle has been hard fought and is not pretty.  Each party, however, has exercised his or her rights under the First Amendment, and there has been alleged no illegal retaliation giving rise to a claim under Section 1983.”

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Credit: Darastar, Everystockphoto.com

Constitution, Courts

A Trial Lawyer in Federal Court- Grappling With Pseudo-Law

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Litigation is often compared to sports.  An imperfect analogy, but not a bad one.  There are usually at least two “teams” (the “plaintiff” or “prosecutor” and the “defendant”) and normally a winner and a loser.  The stakes for the players are often high.  In criminal cases, the defendant’s very liberty is at risk.  In the civil context, a monetary award can change the lives of both plaintiffs and defendants.  This is particularly true for plaintiffs who have suffered catastrophic injuries and can no longer work, or are facing enormous medical bills.  Because of the high stakes, both sides prepare zealously for their day in court. Trial is a winner-take-all proposition.  It is an unscripted and unpredictable match, filled with drama, shifting strategy and gamesmanship.  At the end of the trial, 12 random jurors (people with their own unique life experiences, education and inherent biases) will decide the winner and the loser.  The decision is a profound one, often altering the lives of those involved.

In the mist of the inherent unpredictability of litigation, litigants and lawyers take some small comfort in knowing the process is at least governed by rules.  And these “rules” are enforced by a judge, who plays a role very similar to a referee.  The judge makes sure both sides play a fair game.  So although litigants don’t know what the outcome of litigation will be, they at least know how the game is supposed to be played.  And that is important.  Because the thin line separating what is just from what is arbitrary is called predictability.

In large part, our entire legal system is set-up to establish predicable rules.  This isn’t news.  Our nation began with a bunch of colonist fed up with the arbitrary impositions of a monarch sitting on a throne across the Atlantic.  It wasn’t so much the ridiculous taxes that had colonist fuming, it was the fact that they were being imposed out of left field, with no rhyme or reason. How can anyone live that way?  With such uncertainty! We need rules because rules create predictability.  Predictability, in turn, gives us at least a sense of control and allows us to plan our tomorrows.  This isn’t so much a legal principle as it is an element of human nature.

But law is a reflection of human nature.  So for the system to work, the law needs to be predicable. The law does not always need to be right. It does need to be consistent.

Written judicial opinions are a linchpin of our nation’s legal system and are paramount to ensuring consistent, predictable rules.  One important point of a written opinion is to allow a judge to explain and justify his or her legal decision to specific parties in specific cases.  But more important, judicial opinions either create or follow precedent.   They either create new legal rules (for instance in cases where no rule has ever been established or where a prior rule is no longer viable), or they follow the legal rules that have been established in prior cases.  In situations where there is a well-established legal precedent that still works, judges are expected and normally required to follow those established rules.

But let’s be clear. The point of legal precedent is not to create the “best,” the “most practical” or the “most rational” rules.  That’s not it at all.  The purpose of legal precedent is to create consistent rules that are consistently applied. In a simplified sense, legal precedent serves a similar purpose to a rule book in sports. You might believe that a specific rule is not fair or illogical.  You might believe a specific rule is outdated and should be changed (happens all the time in professional sports).  But as long as everyone knows the rules ahead of time and those rules are followed during “the game,” there is at least a rough sense of justice.

But, imagine a situation where two professional sports teams square off in championship game.  Both teams put in a tremendous amount of work to get to this final game and made significant personal sacrifices. This “game,” this moment in time, will impact the future of these players. The outcome is not just about deciding the “winner” and the “loser.”  It is bigger than that.  There are financial stakes, careers and legacies on the line.  No doubt there will be unpredictable moments, key turning points in the match.  Both sides are hoping to play their best and catch a few lucky breaks along the way.  As they walk out onto the field to start the match, neither side knows exactly what is going to happen.  In fact they live every day in a world of stress and uncertainty.  The only comfort these players have is that they know how to play the game.  They may not know the outcome, but they know the rules. And that is something vital.  Crucial.  Because at its core, this “game,” inherently influenced by unpredictability and randomness, has a set of consistent principles that the players can rely upon.  They can plan around these principles! Without them there is only chaos.

The whistle blows, the game starts.  But then something funny happens.  It is not truly funny, it is bizarre and utterly frightening.  The referees who are supposed to be enforcing the rules are acting strangely, unpredictably.  In fact they are not following the rules at all.  They are making arbitrary decisions. They are not enforcing the written rules.  They are making calls that seem to make no sense.  Refusing to blow the whistle when it is clearly appropriate. The players are confused, tentative.  They are not sure what is happening and not sure what to do.  The game being played on the field is completely different than the game they have played throughout their career.  They look to the referees for answers, but get no explanation that makes sense. With no guidance, the players throw out their game plan, ignore the rule book and start doing whatever the referees will allow.

At some point the game ends.  One team is declared the winner.  But everyone understands it is not a just result because the game was not played according to the rules.  It was chaos.  The losing team is demoralized and angry. They were never given a fair shot.  The rug had been pulled out from under them by referees who decided, apparently on their own, to change the rules during the game.  They feel betrayed, but utterly powerless.  Although they are reluctant to say anything critical of the referees, even the winning team will concede that the game was strange and the rulings unpredictable.

The losing team really does not have much of an option.  They can only complain to the league’s front office.  They file a formal petition, a protest, and ask that the game be replayed.  They point out that the referees were acting erratically and did not follow the rules. In fact their protest points out specific examples of the referees’ mistakes and demonstrates beyond question that the mistakes cost them the game.  The response they get is cold comfort.  The league’s front office sends a letter to the losing team and acknowledges that things went a little sideways during the game.  The league concedes that the referees did not apply the rules as written and “yeah, okay, maybe some mistakes were made.”  But, from the league’s perspective, it’s no big deal.  It was only one game after all and no-one is perfect!  Although the referees did not follow the rules in this particular game, it’s not like they created a whole new rule book.  Next year, when the seasons starts again, the same old rule book that had always been in place will still be used. Next year the referees will be expected to follow the old rules – not the random decisions made by the referees in last season’s championship game.  Maybe the losing team got the short end of the stick in this single game, they lost unfairly.  But life is not always fair and in the scheme of things, all will be well.  We don’t need to “replay” the game, because it was only a minor, one-time hiccup.  The letter concludes by “reassuring” the losing team that if other referees in future games start applying different rules, if it becomes a consistent problem, the league will take formal action “to do something about it.”  Until then, let’s all just move along.

The losing team is clearly not satisfied with this response.  “Ok, great,” the team thinks, if it happens again the league will “do something about it.”  But “what about us,” they say?  “We lost a game we should have won!”  “Where is the justice for us?”  What is really frustrating though, is that everyone else in the league seems to be okay with the league’s explanation.  Everyone seems to be okay with the fact that the losing team was treated unfairly.  Justice for one particular team doesn’t matter, as long as unfair treatment does not become a systemic problem.  So long as it does not happen again next year . . .

This fictional scenario seems absurd, even outrageous.  It is an embellishment, to be sure.  But the truth is that our federal appellate courts actually operate in an analogous manner.  Today, federal courts of appeal decide most cases by issuing written opinions that are designated as “non-precedential.”  The idea of a “non-precedential” opinion is to expeditiously resolve specific disputes between litigants without creating precedent.  In fact, these non-precedential opinions contain a specific disclaimer that the decision is not precedential and “does not bind the court.”  In other words, the circuit courts are basically saying, “Okay, well we decided this particular case this particular way.  But, that doesn’t mean we won’t change our mind and do the opposite next time. Carry on and good luck.”

The fundamental problem with this approach are easy to see.  But before discussing the problems with non-precedential opinions, why do these things exist in the first place? Ultimately, non-precedential opinions became a thing because of volume.  Historically, federal appellate court decisions were published in bound books sometimes called “Reporters.” Still are in fact.  In the 1950s and 1960s the volume of appeals began to rise dramatically and, thus, so did the volume of written appellate decisions.  The consequence of this increase in appellate decision was that the official bound Reporter containing appellate court opinions was becoming too large and unwieldy.  The Judicial Conference noted this problem, and also recognized that a lot of the opinions being crammed into the Reporter were redundant and only addressed well-established legal rules.  Because these opinions were not creating new precedent or clarifying old precedent, they really were not all that important.  So why take up space in the Reporter with these run-of-the-mill opinions?

The second issue, also the result of an uptick in volume, was that the number of appellate court judges was not keeping pace with the number of appeals.  So as the number of appeals continued to grow, appellate judges were forced to churn out more and more opinions.  The strain on judicial time and resources started becoming a problem.

So the Judicial Conference came up with a simple solution that would reduce the size of the federal appellate Reporter and relieve the strain on appellate court judges.  Instead of the appellate courts deciding each appeal with a precedential opinion, why not create “non-precedential opinions”?  The idea being that for run-of-the-mill cases, those that do not involve new issues of law or novel issues of fact, why not let appellate court judges dispose of these cases quickly, without much effort? A lot of time and attention is spent on precedential judicial opinions because litigants rely on those decisions and lower court judges are required to follow them (trial court judges are “bound” by the appellate court decision). Precedential opinions have a ripple effect, they impact everyone, not just the parties involved in the specific lawsuit being decided by the appellate court.  But if we allow appellate judges to designate an opinion as “non-precedential,” we can do away with this ripple effect! Other litigants will not be allowed to rely on “non-precedential decisions” and lower courts will not be bound by them.  It’s like it never happened!  These non-precedential opinions don’t really exist!  And if they don’t really exist and won’t impact anyone else, appellate court judges do not need to spend as much time on them.  If they get it wrong, it’s no big deal because the damage will be limited. Plus, these “non-precedential opinions” will not be placed in the federal Reporter so they would not take up valuable space on the bookshelf.  Sounds like a great plan, right?

For their part, the various circuit courts of appeal were really digging this new “non-precedential” opinion deal.  In fact, non-precedential opinions became so popular that the in the past 10 years, the vast majority of all appellate court decisions are non-precedential.  From 2000 through 2008, for instance, approximately 85% of the Third Circuit’s decisions were non-precedential (the Third Circuit includes Pennsylvania, New Jersey and Delaware).

But this “non-precedential” opinion approach has its problems.  In fact it is a quintessential example of a plan looking really good on paper, but having really troubling implications.  One of the prime problems being that non-precedential opinions appear fundamentally unfair.  Another is that non-precedential opinions turn the entire concept of predictable rules on its head.

Let’s start with the issue of fairness.  First of all, allowing judges to “decide” which cases to designate as non-precedential (i.e. not worthy of publication or precedent) gives the unmistakable impression that appellate courts prejudge certain cases before even getting to the merits.  From the outside, it looks like appellate courts are imposing a subjective and opaque classification system. Deciding, without explanation, which cases are worthy enough for publication (and, some would argue, entitled to more time and attention) and which are not. From an optics perspective, this is problematic.  Although it is true that most appeals do not implicate broad social, political or financial concerns, that doesn’t mean they are insignificant.  You can bet that even a “run-of-the-mill” case is vitally important to the litigants involved.  For “the little guy,” when their appeal is dispatched with a short, terse opinion, it looks like the appellate court did not take their case seriously.  It feels like they didn’t get a fair shake.  Perception and all of that.

The length and quality of non-precedential opinions often make matters worse.  I have not done any research on this issue and I don’t have any empirical evidence, data or metrics supporting my position.  However, in my experience as a practicing trial lawyer (including my time as a federal law clerk), non-precedential opinions are often significantly shorter and contain less rigorous analysis than precedential decisions.  There are exceptions of course.  But, in general non-precedential opinions appear hastier. The product of a system valuing quantity over quality.  But is this what we want from our courts of appeal?

Fairness aside, it is difficult to square non-precedential opinions with a legal system that values consistency, predictability and, quite frankly, due process.  As I noted above, at the very top of every non-precedential opinion is a disclaimer that the opinion you are about to read is not binding precedent.  That allows the same circuit court to decide the same legal issues differently in different cases.  Applying the law differently to different people is inconsistent with bedrock constitutional principles, namely due process.  To be fair, our nation is dual sovereignty with 50 states and 13 federal circuits.  So we are bound to end up with inconsistent legal rulings across the federal circuits (called “Circuit splits”) from time to time. But when different circuits decide the same legal issue differently, when there is a Circuit Split, the Supreme Court usually steps in to resolve the inconsistency.

But this is different.  It’s different because non-precedential opinions allow and arguably encourage individual circuit courts to render inconsistent rulings. Simply by designating an opinion as non-precedential, a circuit court is explicitly reserving the right to change its mind next time it hears the same issue.  The practical impact of such a discretionary system is that it provides zero clarity to litigants.  It provides zero predictability.  Today the court of appeals is saying the law is X, tomorrow it is Y, and next week it is Z. It doesn’t matter though, because the opinions are “non-precedential!”  They don’t really count!!!!

Sounds questionable, right?  Sounds fundamentally flawed?  It is, and the inherent problems are exposed when a losing party asks the circuit court for a rehearing en banc.  Normally an appeal to a circuit court is heard and decided by a three judge panel.  On rare occasions, the entire court of appeals for a circuit will decide a case together.  So, for instance, in the Third Circuit there are presently 14 active judges.  Normally a case appealed to the Third Circuit is sent to a panel of 3 judges. This is done for efficiency reasons.  If all 14 judges had to decide every case not a lot of cases would be decided. When a three judge panel makes a decision, the losing party can ask for a rehearing en banc, meaning that all of the judges on the Third Circuit reconsider the case together.

An en banc hearing is extraordinarily rare and requests for a rehearing en banc are almost always denied.   The criteria for granting an en banc rehearing is very limited.  One of the primary factors the Third Circuit will consider in deciding to proceed with an en banc rehearing is whether the panel’s decision “involves a question of exceptional importance.”  Naturally, when a losing party requests an en banc hearing they typically argue that not only was the panel’s decision wrong, but the legal issue is so important it requires an en banc rehearing to fix the mistake.  And here is where the justification and rational for non-precedential opinions begin to break down.   If the winning party files a response to the request for a rehearing en banc, it often argues that the panel’s decision was correct AND even if it is wrong, the decision is not of “exceptional importance.”  Why not? Well if the panel’s decision was non-precedential (and it almost always is), the winning side usually argues that because it is a non-precedential opinion, other courts and other judges don’t need to follow it. In fact they can ignore the decision and “fix it” next time.  In other words, there is no ripple effect.  The panel’s decision may be wrong, but the only person impacted is the guy who lost.  That may be sad for him, it may be unfair, but life is not fair and his unfortunate loss is not “exceptionally important.”

The crazy thing is, this is a legitimate argument.

So what’s the solution?  The easy answer is to do away with non-precedential opinions altogether.  The historic justification for creating non-precedential opinions is dubious and at the very least outdated.  Most attorneys do their case research online these days so ongoing concerns about thick, unwieldy hard-copy Reporters are questionable. Nobody really uses them!  It is also fair to question the argument that non-precedential opinions can be drafted faster and more efficiently than precedential decisions. If the justification is that non-precedential opinions are reserved to routine decisions based on well-established law, well then why can’t these decisions be made just as quickly without assigning a “non-precedential” label?  Shouldn’t appellate judges make the same effort in all cases? Shouldn’t they stand by the quality and clarity of their work?

Look, I get it.  Some will argue there are still advantages to non-precedential opinions.  It’s faster (again I doubt this).  It’s more efficient!  Maybe.  If you value speed and efficiency in appellate review, maybe this is a good thing.  But if you value individual justice, if you value predictability, well, you may have some legitimate concerns.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Government

ARE YOU FROM PENNSYLVANIA? CONGRATULATIONS, HERE’S A 10 MINUTE PRIMER ON WHY YOUR GOVERNMENT SEEMS TO BE IMPLODING

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It’s tough to be a Pennsylvanian these days.  Especially if you are from Philadelphia.  Our State is on the verge of shutting down because we can’t pass a budget.  Our public school systems are still a problem and habitually underfunded.  And we can’t even take solace in our diversion of choice – sports (at least those of us in Philadelphia). The Flyers are terrible, the Eagles are worse and the Sixers are trying to lose games and have been for 3 years.

But compared to what’s going on in the upper echelon of our government, these seem like minor annoyances.  Because just now, Pennsylvania’s entire democratic government appears to be imploding.

The sheer volume and breadth of potentially career-ending allegations being asserted against the State’s political elite is astonishing and unprecedented.  If you haven’t been able to keep up with daily allegations of widespread political misconduct and corruption (and who could blame you), here is a quick rundown on the current state of your government:

  • Your elected Attorney General’s license to practice law has been revoked by the Pennsylvania Supreme Court and she is facing trial on multiple perjury charges, allegedly for lying about her role in leaking confidential grand jury information;
  • One of your elected Supreme Court Justices (Justice Seamus McCaffery) resigned after allegations that he sent pornographic, misogynistic and racially derogatory emails to other State employees, including prosecutors;
  • Governor Tom Wolf has formally requested that a second Supreme Court Justice (Justice Michael Eakin) resign, also for sending and receiving sexually and racially offensive emails. Justice Eakin has also been accused of exchanging offensive and inappropriate emails concerning female members of his staff;
  • A third Supreme Court Justice (the Court’s Chief Justice) has been accused of implementing a clandestine scheme to save his imperiled colleague’s job by appointing a ringer to the Court of Judicial Discipline – the Court responsible for doling out potential punishment to Justice Eakin; and
  • A number of your State’s top prosecutors have been accused of pursuing a racially tainted corruption sting targeting minorities. There are calls for some of these same prosecutors to resign or be fired for exchanging pornographic and offensive emails with the above referenced Supreme Court Justices.

The bullet points above are only an outline of recent headline grabbing allegations involving the leaders of your State.  The media has been using the term “Porngate” to describe the exponentially growing investigation into hundreds of arguably pornographic emails exchanged by government officials. As far as I know, none of the upper echelon political figures identified in these controversies has been convicted of a crime.  Most have not admitted to any wrongdoing, although Justice Eakin has issued an apology.  I can’t and won’t pass judgment on the guilt or innocence of any of the parties involved.  For the most part, these are all just allegations.  That said, every new, scandalous headline is a black eye for our home State.

At this point, these high-profile scandals have assumed a life of their own.  But what is remarkable, and lost in the avalanche of new allegations, is how this entire mess appears to have started in the first place.  Believe it or not, the ongoing investigations threatening to take down a significant chunk of Pennsylvania’s political elite seems to have grown from a small squabble between prosecutors.  Really!  It is like a Shakespearean tale.  Two prosecutors who didn’t like each other inadvertently set in motion a series of events that could result in the meltdown of Pennsylvania’s government (or at least its Judiciary).

Hard to believe?  Well, let me tell you a story . . . about what “allegedly” happened:

Way back in 2012, Pennsylvania’s Democratic Party backed former prosecutor Kathleen Kane for Attorney General.  It had been an awfully long time since a Democrat had been Attorney General in Pennsylvania. In fact, before Kane, no Democrat had EVER been elected Attorney General in Pennsylvania.   But Kane liked her chances and so did her supporters.

One of Kane’s campaign strategies was to criticize then Governor Tom Corbett’s handling of the Jerry Sandusky case. Governor Corbett had been serving as Pennsylvania’s Attorney General when the Attorney General’s Office began investigating claims that Jerry Sandusky was sexually abusing minors.  The primary attorney investigating Sandusky was Frank Fina, a well-known prosecutor with a long list of high-profile convictions.

During her campaign for office, Kane suggested that Corbett and Fina had delayed prosecuting Sandusky so that it would not impact Corbett’s successful bid to run for Governor in 2010.  On the campaign trail, she promised she would review Fina’s investigation into the Sandusky matter.

Kane was eventually elected as Pennsylvania’s Attorney General.  But, a number of newspapers reported that Fina was angry that Kane wanted to review his work on the Sandusky matter and that she criticized the way the prosecution was handled.

On March 17, 2014, the Philadelphia Inquirer broke a story that Kane, in one of her first significant acts as Attorney General, had quietly shut down an undercover sting operation that had succeeded in capturing various Philadelphia politicians accepting cash payments in return for favors. That sting operation had been run by Frank Fina.

The Inquirer story was critical of Kane shutting down the sting operation.  Particularly in light of the video evidence of politicians taking money as bribes.  Reportedly, Kane believed that Fina had leaked the story to the Inquirer. For her part, Kane told the Inquirer that she had shut the sting down because she believed that the individuals conducting the operation (i.e. Fina) had improperly targeted only black politicians.

Kane, angry about the Inquirer article, allegedly decided what is good for the goose is good for the gander and decided to leak negative information about Fina.  Reportedly, Kane leaked confidential memos from a 2009 Grand Jury investigation run by Fina.  Kane believed that Fina had botched the investigation and the memos proved it.  Fina, in turn, reported the illegal leak of Grand Jury memos to a Montgomery County judge.  That kick started a separate Grand Jury investigation into who exactly leaked the confidential memos.

Kane was then called to testify in front of a Grand Jury about her involvement in leaking the memos. She denied any wrongdoing, but the Grand Jury concluded there was sufficient evidence that she lied.  Boom! Kane is now facing a criminal trial in Montgomery County for multiple counts of perjury.

Still with me?  Good – because now things get a little crazy.

While Kane and Fina were allegedly busy trying to destroy each other, Kane made good on her campaign promise to review the Sandusky investigation.  Fina, who ran that investigation, was cooperating with the probe, but he had left the AG’s office and joined the Philadelphia District Attorney’s Office.  In order to better recollect his actions in the Sandusky probe, Fina reportedly requested his emails from that investigation.  That turned out to be an inadvertent, yet fatal mistake

When Kane started searching through Fina’s old emails from the Sandusky matter, she reportedly found additional emails he had sent or received that contained offensive and/or pornographic emails. Reportedly, this gave Kane leverage she could use to strike back at Fina and potentially destroy his career.

But Kane didn’t just find offensive emails from Fina.  She also found racially insensitive and offensive emails sent to and from Supreme Court Justices Seamus McCaffery and Michael Eakin, amongst others.  A number of people were included on these email chains, including prosecutors, making the emails not only offensive but evidence of troubling conflicts of interests (Supreme Court Justices really shouldn’t be exchanging personal emails with prosecutors when a significant part of a Justices job is to review the conduct of those same prosecutors). And this is the pivotal moment in this story.  Up until this point, the story playing out was simply a scorched earth personal dispute between two prosecutors.  But now, with these offensive emails being sent to and from Supreme Court Justices and high powered prosecutors, the controversy exploded.

Justice McCaffery resigned shortly after the emails uncovered by Kane came to light.  Justice Eakin did not resign. Special Counsel was hired to investigate Justice Eakin’s involvement and determined that the emails he sent weren’t really all that bad.  It was later reported that the Special Counsel had previously assisted with Justice Eakin’s re-election for the Supreme Court in 2011 . . . but that’s a different story.

Anyway, things with Justice Eakin were status quo for a time, but of course, in a story like this, it is inevitable that the next shoe would dropped.  And it did.  In a surprising move, the Supreme Court suspended Kane’s law licenses this past summer, ostensibly because of the criminal charges pending against her for perjury. By suspending Kane’s law license, the Supreme Court left the State’s lawyer-in-chief unable to practice law.

Now, it just so happens that not long after the Supreme Court moved to suspend Kane’s law license, additional emails from Justice Eakin were “discovered.”  These emails, reportedly included email exchanges between Justice Eakin and other men that contain highly suggestive and offensive discussions about female judicial staff members.

After the content of these “new” emails became public, Governor Wolf called for Justice Eakin to resign.  But, as a sitting Supreme Court Justice, it is for the Court of Judicial Discipline to decide whether Justice Eakin is fit to remain on the bench.

Now, you would think that if a Supreme Court Justice was subject to trial before the Court of Judicial Discipline the Court of Judicial Discipline would be independent of the Supreme Court.  But, of course you would be wrong. It turns out that the Supreme Court has the authority to appoint a judge to the Court of Judicial Discipline.  A few days ago the Inquirer broke a story that Justice Eakin and the Supreme Court’s Chief Justice Thomas Saylor were attempting to nominate Karen Snider, former secretary with the Department of Welfare, to the Court of Judicial Discipline because she would be sympathetic to Justice Eakin.  Regardless of the motives for appointing Snider, it appears Eakin was permitted to vote for Snider’s appointment, which seems like a potential conflict of interest.

I could go on for another dozen pages with this stuff, but my 10 minutes are up.  And you are now caught up on the current state of Pennsylvania politics!

PJames Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/hoto Credit: Darastar, Everystockphoto.com