A Southeastern Pennsylvania woman is suing Texas-based Reddy Ice Corp.

Gerald B. Baldino, Jr.

over a torn ligament she sustained allegedly as a result of slipping on a leaking bag of ice packaged by the defendant.

Loretta Sfamurri, of Clifton Heights, Delaware County, filed a federal civil action Jan. 2 at the U.S. District Court for the Eastern District of Pennsylvania accusing Reddy Ice Corp. and Reddy Ice Holdings Inc. of negligence for failing to inspect, maintain and repair an ice machine at the Bottom Dollar Food store at 48 W. Baltimore Avenue in Lansdowne, Pa.

The plaintiff was a customer at the store on Aug. 18, 2012, when she slipped on a wet surface created by a leaking ice bag, the complaint states.

The lawsuit asserts that a self-service ice machine located within the store was either not functioning or malfunctioning, with the above-freezing temperature causing the ice to partially melt.

The defendants were the owners of the self-service ice machine and were responsible for the machine’s maintenance and inspection, the suit states.

“Defendants knew, by reasonable inspection should have known, or were otherwise constructively aware of the dangerous condition created by the malfunctioning ice machine and the melting ice,” the complaint reads.

As a result of the defendants’ negligence, the suit says, Sfamurri sustained traumatic injury to her right leg, including internal derangement and tear of the ACL, or anterior cruciate ligament.

The plaintiff claims she has suffered great physical pain, mental anguish, nervous system shock, and that she has been compelled to expend various sums of money to cure her of her leg injuries.

She also alleges that she suffered a permanent impairment of her earning power and capacity as a result of her fall.

Sfamurri seeks more than $150,000 in damages.

The complaint was filed by Media, Pa. attorney Gerald B. Baldino, Jr., of the firm Sacchetta & Baldino.

The federal case number is 2:14-cv-00007-JD.

A three-judge Commonwealth Court panel has overturned a decision by the

Pa. Commonwealth Court Judge Mary Hannah Leavitt

Workers’ Compensation Appeal Board that upheld a workers’ compensation judge’s decision to dismiss a petition filed by a man who alleged his lung cancer was caused by his exposure to paint chemicals while on the job.

In a Jan. 3 decision, the three appellate judges on Commonwealth Court, a lower-tier state appeals court, determined that a claim by David D. Wagner, II, shouldn’t have been tossed by the workers’ compensation judge because Wagner failed to present his medical evidence in accordance with a schedule set by the judge.

Wagner, who worked for Ty Construction Co., was diagnosed with lung cancer in January 2011, after which he requested total disability benefits and payment of his medical expenses.

An initial hearing was held in mid-June 2011, at which time Wagner’s lawyer said he was waiting for Wagner’s oncologist to issue a report stating that his patient’s lung cancer was caused by exposure to paint chemicals in the workplace.

A month later, Ty Construction moved to dismiss the petition because the report from the oncologist had not yet been produced, records show.

Wagner’s lawyer notified the workers’ compensation judge that the doctor “flatly refused to become involved in any legal matters,” and would therefore not produce a medical report, the Commonwealth Court ruling states.

The attorney then began searching for an opinion by an industrial hygienist.

Meanwhile, the workers’ compensation judge ordered Wagner’s lawyer to schedule a deposition by Aug. 19, 2011.

Following an Aug. 23, 2011, hearing, the judge gave Wagner another month to produce a medical report, the record shows.

Wagner was able to secure a medical report on causation from a pulmonologist at Hershey Medical Center, and subsequently scheduled the doctor’s deposition for early October 2011.

Ty Construction then requested a delay in the deposition so that it could obtain an independent medical examination of Wagner, the court decision states.

The IME report was produced in early January 2012, after which the employer sought dismissal of Wagner’s petition because he had not yet obtained the deposition of the physician.

Wagner’s lawyer argued that he had been “trying valiantly to reschedule” the deposition, but that he was having trouble because the pulmonologist was a “busy practitioner,” the court ruling notes.

Wagner’s attorney also argued that because Ty Construction’s owner would be offering testimony about the paints and chemicals used in the business, it would make sense to schedule the medical deposition after the deposition of the business owner.

The workers’ compensation judge ended up granting the employer’s motion to dismiss because Wagner had failed to produce “supportive evidence” within a time frame set by the judge.

In its 11-page ruling, the Commonwealth Court panel noted that Wagner’s lawyer encountered an “unforeseen hurdle” when he found out the oncologist would not participate in the litigation in any way.

“Claimant was given one month to schedule a medical deposition, which was a tight schedule, considering that Claimant had, first, to find a new expert, who cannot be expected to author a reliable medical report overnight,” the appellate panel wrote.

The judges noted that the workers’ compensation judge’s sole factual finding to support his dismissal was that Wagner did not abide by the judge’s order to have a medical deposition by Aug. 19, 2011, a finding that is “inconsistent with the record.”

“The WCJ seems to have forgotten that he extended this deadline to September 24, 2011, and he overlooked Employer’s acknowledgement that Claimant’s medical report met that deadline,” the ruling states. “The WCJ also overlooked the fact that Claimant had arranged for the deposition of his expert for October 2, 2011.”

That deposition, however, didn’t take place precisely because the employer, not Wagner, requested a continuance, the judges wrote.

“In fact, the deposition had to be delayed for three months while the parties waited for Employer’s physician to produce an IME report,” the ruling states. “Claimant’s counsel told the WCJ that he was working diligently to reschedule the deposition of Claimant’s expert, and Employer did not dispute this representation of Claimant’s efforts.”

The judges wrote that Wagner’s lawyer had met the workers’ compensation judge’s schedule for producing a medical report, had successfully scheduled the medical deposition once, and was actively attempting to reschedule the deposition.

A “significant part” of the delay, the Commonwealth Court wrote, was caused by the employer’s expert.

The panel concluded that the workers’ compensation judge abused his discretion when he dismissed Wagner’s petition.

The judges reversed the Workers’ Compensation Appeal Board’s decision to uphold the workers’ compensation judge’s decision, and remanded to the WCJ for further proceedings on the merits of Wagner’s claim petition.

The decision was written by Commonwealth Court Judge Mary Hannah Leavitt.

The other participating judges were Bonnie Brigance Leadbetter and Anne E. Covey.

Like professional sports organizations, youth athletic leagues cannot be

Senior Pa. Superior Court Judge James Fitzgerald, III

held liable for injuries to spectators in Pennsylvania, the state Superior Court decided in a ruling issued in late December.

Taking up the appeal of Tracy and John DeBrigida, an appellate panel affirmed a decision by a Lehigh County Common Pleas Court judge to grant summary judgment to Lehigh Valley Stealth Baseball Team and Lehigh Valley Baseball Academy in a lawsuit the couple initiated over injuries the wife claims she sustained by an errant baseball.

Tracy DeBrigida alleged in the couple’s lawsuit that she was struck on the right side of her face by a baseball that was thrown wide to the first baseman during a game the plaintiffs attended on July 11, 2009.

She was seated with her family on a blanket on the ground behind the first base line at the time of the incident.

There were apparently no bleachers for spectators to sit on during the game.

The DeBrigidas sued in late June 2011, asserting claims of premises liability against the defendants.

In the lawsuit, the couple claimed that the defendants failed to cordon off a spectator area so that those in attendance would be in the “line of fire,” according to the Superior Court ruling.

Other acts of negligence were also averred in the complaint.

Attorneys representing Lehigh Valley Stealth Baseball Team filed for summary judgment on Nov. 30, 2012, denying liability under the “no duty rule,” arguing that the rule “applies to situations where spectators or participants of baseball are injured by “inherent risks of the game.”

The defendant also claimed it owes no duty of care to warn, protect or insure against risks that are “common, frequent and expected” and “inherent” in an activity.

In their appeal, the plaintiffs sought to have the Superior Court overturn the “no duty rule” in instances where no ticket sales are involved and where spectators are on a field that has no protection, such as netting, to shield attendees from game play.

The trial court judge, in granting summary judgment to the defense, had written that in sports such as baseball, “a patron voluntarily participates in the sport as a spectator and knowingly exposes herself to the reasonable risks inherent and incident to the game.

“Foul balls, wild throws, and the odd bounce are all part of the attraction of the game,” the trial judge continued. “The risk of being the victim thereof is obvious and is common knowledge. In the observation of the risks, the spectator must exercise … her own reasonable care.”

The trial judge also noted that the plaintiffs failed to identify any liability experts or to produce expert reports.

The appeals judges ended up siding with the trial court, writing that the plaintiffs failed to establish that the purportedly “unique facts” of their case require evasion of the “no duty” rule.”

The alleged “unique facts” included the fact that the plaintiff had just arrived at the game, set up a blanket in an area amongst other spectators along the first base line, and was only there for a few minutes at the time she was struck in the face by the wild ball.

“Their arguments on appeal do not respond to the trial court’s reasoning that a player overthrowing a ball to first base, such that the ball goes off the field and possibly into the spectator area, is a common occurrence in the game of baseball,” the ruling states.

The appeals judges noted that the couple appeared to emphasize the fact that they had no choice but to sit too close to the first base line.

“We decline to hold that [the defendants] owed a duty to ensure the spectator area was situated a specified distance away from the field or had a duty to erect a screen or other protection,” they wrote.

The appellate panel also said they could not overrule the “no duty rule,” writing that “any … change in the law is beyond the mandate of this Court.”

Superior Court, they wrote, will continue to follow “controlling precedent as long as [a] decision has not been overturned by our Supreme Court.”

The non-precedential decision was written by Superior Court Senior Judge James J. Fitzgerald.

The other participating jurists were President Judge John T. Bender and Judge Anne E. Lazarus.

Two attorneys representing General Electric Co. in litigation stemming

Eric H. Weitz

from an alleged workplace injury contend the matter belongs in federal, not state, court because the amount of damages sought by the plaintiff is likely to exceed the jurisdictional limit in a Pennsylvania courtroom.

John E. Salmon and Zachary J. Ballard, of the firm Salmon Ricchezza Singer & Turchi, filed a removal notice Jan. 3 seeking to transfer a civil action commenced this fall by Chester County resident Timothy Jones from the Philadelphia Court of Common Pleas to the U.S. District Court for the Eastern District of Pennsylvania.

Jones is suing General Electric over a Sept. 22, 2011, incident that he says left him with permanent shoulder damage.

On that date, Jones, who was employed by Sikorsky Aerospace Services as a lead mechanic, was dispatched to perform maintenance on a helicopter owned by the defendant at one of the company’s facilities in New York State.

Jones and members of his team were tasked with pressure testing and re-packing emergency flotation bags on one of General Electric’s helicopters, according to the plaintiff’s complaint.

After he finished the main portion of his assigned duties, Jones performed a final check and inspection with one of his employer’s quality assurance inspectors, the lawsuit states.

It was at this point, while the helicopter was up on jacks in order to expose the chambers on the underside of the craft where the emergency flotation bags were stored, that Jones was struck by one of the chamber’s doors, which exploded and sent the plaintiff “catapulting” across the hangar floor.

The incident occurred while, unbeknownst to the plaintiff, General Electric mechanics were performing an electrical check of the helicopter’s circuitry, the complaint states.

The mechanics ended up triggering the explosive charges on the emergency flotation system, which caused the flotation bag chamber doors to explode onto the plaintiff’s left shoulder.

Jones claims he sustained a host of serious and permanent injuries to his shoulder that includes a decrease range of motion and loss of functional capacity.

He is seeking damages relating to past and future pain and suffering, medical expenses, lost earnings, past and future humiliation and embarrassment, and past and future emotional and psychological trauma.

General Electric is accused of a variety of negligent actions, including failing to properly train its mechanics regarding safety precautions, failing to properly create safety policies and procedures for its mechanics, failing to follow existing safety policies and procedures for working on helicopters, failing to ensure that the blast zone was clear before performing an electrical check of the craft, and failing to warn Jones, the plaintiff, that an electrical check of the helicopter was going to be performed.

In his suit, Jones says he is seeking damages in excess of $50,000, but in their removal notice, General Electric’s lawyers maintain the plaintiff’s sought damages will exceed $75,000.

The defense attorneys also argue that the matter belongs in federal court because there is diversity in citizenship among the parties.

Jones is being represented by Philadelphia lawyer Eric H. Weitz of Messa & Associates.

The state case ID number is 130901107 and the federal case number is 2:14-cv-00018-EL.

A western Pennsylvania coal miner claims in a recently filed civil suit that

Julie Wieczorek Fritsch

he sustained facial fractures, including a broken jaw, when the brakes on the device in which he was riding in a mine failed, causing the plaintiff to careen into a pole.

Thomas Peters, who lives in Penfield, Clearfield County, filed suit last month in a Pennsylvania state court against Amfire Mining Co. and Alpha Natural Resources Inc. over injuries he says he sustained on Jan. 18, 2012, at the Dora #8 Deep Mine in Hamilton, Jefferson County.

Peters was operating a device called a mantrip downhill to enter the mine when the brakes malfunctioned, causing the Johnson four-wheeler maintrip to collide with a telephone pole at a high rate of speed, according to the civil complaint.

The defendants, who were responsible for the maintenance and care of the mantrip, are accused of negligence for failing to properly inspect, repair and maintain the device; failing to adequately warn the plaintiff of the faulty mantrip; failing to ensure that the brakes on the device were in working order; and allowing the mantrip to be maintained without a proper braking system.

As a result of the incident, Peters sustained a fractured jaw, extensive facial lacerations, a left-sided orbital fracture requiring surgery, a nasal fracture, eight rib fractures, a left elbow fracture requiring numerous surgical procedures, and tendon tears, the complaint states.

Peters says he experienced great pain and suffering, embarrassment, inconvenience and mental anguish as a result of his ordeal.

He also maintains that he suffered earnings losses due to his inability to work while recovering from his injuries, and that he suffered “substantial facial and bodily disfigurement.”

The complaint says that in the organization of a coal company, “it is incumbent upon the controlling entity of a mine to ensure that all persons working in or about its premises or mine are provided a safe place to work free from hazards.”

“Defendant Alpha Natural Resources, Inc. negligently failed to put in place any standardized operating and safety procedures for the Dore #8 Deep Mine and/or negligently failed to monitor Defendant AMFIRE Mining Company, LLC’s compliance with standardized operating and safety policies and training for the Dore #8 Deep Mine,” the complaint states.

On Monday, attorneys Michael P. Leahey and Daniel R. Michelmore, of the Pittsburgh firm Jackson Kelly, who represent the two defendants, filed a removal notice with the U.S. District Court for the Western District of Pennsylvania seeking to have a federal judge take up jurisdiction over the litigation.

The defense lawyers wrote that they believe the amount in controversy in the case to exceed $75,000, a fact that’s supported by the plaintiff’s counsel’s pre-suit demand to the defendants of $2,750,000.

The $75,000 figure would trigger federal court oversight.

Peters is being represented by Pittsburgh attorney Julie Wieczorek Fritsch of Rudberg Law Offices, who initially filed suit on behalf of her client in early December at the Jefferson County Court of Common Pleas.

The federal case number is 2:14-cv-00021-DSC.

A suburban Philadelphia man is suing Triumph Brewing Co. for $150,000

Christopher Brill

over injuries he says he sustained when a tray of heavy dishes were dropped on him by a restaurant server.

Robert Goodwin, of Langhorne, Bucks County, filed suit in U.S. District Court in Philadelphia on Jan. 8 against Triumph Brewing Company of Princeton Inc. over a Feb. 11, 2012, incident at the defendant’s business at 138 Nassau St. in Princeton, N.J.

On that date, Goodwin was a patron of the defendant’s restaurant and brewery, seated with his wife and friends as they watched their friends’ son play in a band, when, without warning, an employee dropped a bunch of large dishes on him, hitting Goodwin in the neck, back and right foot, the complaint states.

The lawsuit alleges that the incident caused Goodwin to sustain injuries including an ankle sprain, cervical neck sprain, back sprain, severe occipital headaches, aggravation of asymptomatic degenerative disc disease, spinal stenosis of the cervical spine and other ills and injuries.

Goodwin also claims he has suffered from physical pain and mental stress, emotional upset, worry, anxiety, apprehension, frustration, humiliation, embarrassment, inconvenience, and a general loss of pleasure and enjoyment of life.

The plaintiff says he has been forced to expend various sums of money on medical treatment, and that he may have to undergo additional doctors’ care in the future.

Goodwin’s wife, Margaret, a co-plaintiff in the litigation, asserts a loss of consortium claim in which she maintains she has been deprived of the society, companionship, services and consortium of her husband due to his injuries, to her “great loss and detriment.”

They are being represented by Newtown, Pa. attorney Christopher J. Brill.

The federal case number is 2:14-cv-00116-SD.

A Bucks County man claims in a newly filed civil action that his fingers

Michael Heygood

were severely injured while using a table saw manufactured by the Japanese-based Makita Corp.

Yuri Gohen maintains that the defendant’s negligent design, manufacture, and distribution of its Model No. 2704 table saw led to his “serious and permanent” personal injuries that occurred on Jan. 11, 2012.

On that day, Gohen was using the product as it was intended to be used when his fingers came into contact with the blade on the device, causing him to suffer physical disfigurement, physical impairment and mental anguish, states the lawsuit, which was filed on Jan. 10 in U.S. District Court in Philadelphia by Dallas attorney Michael Heygood, of the firm Heygood, Orr & Pearson.

The plaintiff accuses Makita of failing to utilize available safety technology in its design of the table saw.

Like all table saws sold in the United States, the defendant’s product is required to be sold with a blade guard, but the particular blade guard on the Makita saw is very difficult to use, and must be removed for a user to make certain cuts with the device, the complaint states.

And once the blade guard is removed, it’s hard to reattach the device, meaning most consumers either assemble the saw without the guard or remove it and leave it off of the saw permanently, the suit says.

“This widespread practice was well known by Defendants, yet Defendants made no effort to improve the design of the guard to make it more user friendly until required to do so by recent changes to industry-wide standards,” the complaint reads.

The additional defendants named in the complaint are Makita U.S.A. Inc. and Makita Corp. of America.

The saw is also made with a splitter, or spreader, attached to the blade guard that is designed to prevent kickbacks of wood while cutting, but because that device is attached directly to the blade guard, it, too, is often missing when the blade guard is removed, leading to kickback injuries among users.

The complaint accuses the defendants of failing to use what is known as a “riving knife” instead of a splitter or spreader, despite the fact that that alternative is known to “substantially” reduce or eliminate kickbacks among users of the saw.

A riving knife is a small piece of metal that sits behind the blade and rises and falls with the blade, according to the lawsuit.

Even if a blade guard is removed, the riving knife would remain in place, “substantially reducing or eliminating kickbacks,” the suit reads.

Riving knives, the suit says, are required to be placed on all table saws sold in Europe.

The Makita saw used by Gohen did not have a riving knife, and if the defendant had used that technology, the plaintiff would not have been injured, or his injuries would have been “substantially reduced,” the complaint alleges.

Another technology that has also been available for use for many years is known as the SawStop, which stops the spinning blade almost immediately after the blade comes into contact with human flesh.

The lawsuit claims Makita also failed to use the SawStop technology on its table saw, despite the fact that the company was aware of the availability of this “flesh-sensing” technology.

“As a result, the Makita Saw had no flesh-detecting technology or other similar technology that would stop a spinning saw blade upon contact with human skin,” the complaint states.

The lawsuit contains counts of strict liability, breach of implied warranty and negligence.

Gohen seeks an unspecified amount of damages for pain and suffering, mental anguish, disfigurement, lost wages and future medical expenses.

He also seeks attorney’s fees, interest, and litigation costs.

The federal case number is 2:14-cv-00148-CMR.

Three attorneys for P.F. Chang’s China Bistro Inc. have filed a removal

Anne R. Myers

petition in U.S. District Court seeking to have a federal judge take up jurisdiction over an injury lawsuit brought by a suburban Philadelphia couple.

The attorneys – Anne R. Myers, Eileen Monaghan Ficaro and Gregory F. Brown – contend that a complaint initiated earlier this month by Amy and David Yontef of Lafayette Hill, Pa. belongs in federal, not state, court.

The husband and wife are suing Arizona-based P.F. Chang’s over a June 7, 2012, incident at a restaurant owned by the defendant in Plymouth Meeting, Montgomery County in which Amy Yontef claims she sustained a fractured right leg after falling at the premises.

The lawsuit, which was originally filed at the Philadelphia Court of Common Pleas, says the woman slipped as a result of a “defective condition,” although the suit doesn’t specify what exactly the plaintiff tripped over.

The litigation asserts a negligence claim against the business for failing to maintain the premises in a safe condition, failing to warn patrons of the dangerous condition, failing to provide customers with a safe means of ingress and egress to and from the premises, and failing to exercise due care.

As a result of her fall, Amy Yontef sustained a fractured right patella requiring surgical repair, as well as other injuries to her bones, muscles, ligaments and discs.

She also experienced pain and suffering and suffered earnings losses due to her inability to work while recovering from her medical procedures.

The plaintiffs, who are being represented by Conshohocken, Pa. attorney Stuart A. Carpey, say they are seeking $50,000 in damages.

In the removal notice, the defense attorneys state that the plaintiffs have since stipulated that their demand for damages in the case exceeds $75,000, which would trigger federal court oversight.

The defense team is also seeking to remove the case to the U.S. District Court in Philadelphia based on the doctrine of diversity jurisdiction.

The defense attorneys are with the Blue Bell, Pa. firm of Kaufman Dolowich & Voluck.

The state case ID number is 131203850 and the federal case number is 2:14-cv-00163-ER. 

A contractor doing work for residents at a suburban Philadelphia

George Szymanski

condominium complex has filed a civil action against the real estate group that owns the complex over claims that he became injured after slipping on black ice at the property.

Albert Jimenez, who resides in Delran, New Jersey, alleges he suffered a host of injuries, including a slipped disc in his lower back, left hip tendonitis, post-traumatic stress, and other physical ailments, following a fall on Jan. 17, 2012, at The Fairmont, a residential complex located at 41 Conshohocken State Road in Bala Cynwyd, Montgomery County.

On that date, at about 8 in the morning, the plaintiff went to the premises to perform tasks for residents in connection with his job as an independent contractor when, without warning, he came across a patch of black ice while he was walking through the parking lot carrying his work tools.

The plaintiff then fell “violently” onto his left hip, causing him to sustain injuries to his neck, leg, and middle and lower back, according to the lawsuit.

Jimenez ended up missing work for four months due to his injuries, which he alleges cost him $24,000 in lost wages.

He says he has also suffered a “permanent diminished earning capacity as the result of this accident,” according to the complaint.

The plaintiff accuses the defendant, which is listed as The Council of the Fairmont, of negligence for failing to identify the dangerous defect in the parking lot, in this case, the patch of black ice, and failing to correct the hazardous condition.

“The plaintiff’s accident would not have occurred absent negligence on the part of the defendant,” the lawsuit reads.

Jimenez seeks an unspecified amount of compensatory damages, plus interest and litigation costs.

He is being represented by Laurel Springs, N.J. attorney George R. Szymanski.

The federal case number is 2:14-cv-00232-MMB.

Defense attorneys have petitioned the federal court in Philadelphia to

Kenneth A. Murphy

handle a products liability lawsuit initiated early last month by an Illinois plaintiff over allegations that she became injured by pelvic mesh.

A team of lawyers from Drinker Biddle & Reath filed a notice of removal with the Eastern District of Pennsylvania seeking to have the federal bench take jurisdiction over a lawsuit filed on July 2 at the Philadelphia Court of Common Pleas by counsel for Carla Hibler, an Illinois resident who claims she was injured soon after having a pelvic repair mesh product implanted in her body in early January 2010.

The lawsuit claims that the defendants’ mesh products and/or mesh components can erode and cause infection, inflammation, organ perforation, pelvic floor damage, blood loss, recurrent urinary incontinence and other problems in patients who have the product surgically implanted in their bodies.

Hibler claims she sustained severe and permanent pain, suffering, disability, impairment, loss of life’s enjoyment, and other problems as a result of having had the pelvic mesh product placed inside her body.

Records show that the pelvic mesh product that had been placed inside the plaintiff was the Gynecare TVT System manufactured by Ethicon Inc., which is named as a defendant in the litigation along with Ethicon Women’s Health & Urology, Gynecare, Johnson & Johnson, Prodesco Inc. and Secant Medical Inc.

The notice of removal, which was filed on Aug. 23 at U.S. District Court by lawyers Kenneth A. Murphy, Melissa A. Graff and Andrew P. Reeve, says that the matter should be litigated inside a federal courtroom because the amount of damages sought by the plaintiff appears to exceed $75,000, the threshold for removal to U.S. District Court.

The defense lawyers wrote that the Hibler case is factually similar to thousands of cases currently pending in six separate multidistrict litigation proceedings playing out against the defendants over pelvic mesh injury allegations.

The attorneys representing the defendants also wrote that complete diversity of citizenship exists between the parties, another requirement that must be shown before an action is transferred out of state court and into a federal venue.

The removal petition also notes that Gynecare Inc. no longer exists, having since been acquired by Ethicon Inc.

Johnson & Johnson, the notice states, is a citizen of New Jersey that has its primary place of business in the Garden State.

The removal petition further maintains that Secant’s presence in the litigation doesn’t defeat diversity jurisdiction because the company was fraudulently joined to the case.

Secant, the defense attorneys wrote, has played an extremely limited role in the development of the Gynecare TVT System, and therefore should not be named in the lawsuit.

The company has never designed, marketed, promoted, sold, packaged or distributed the product, and it has never conducted pre-clinical testing or clinical trials on TVT, it never submitted applications to regulatory agencies to permit the marketing of TVT, and it never developed or published the package inserts, labels or other materials associated with the pelvic mesh system, the lawyers wrote.

“Accordingly, Secant cannot be held liable under the Biomaterials Access Assurance Act of 1998 and, in the alternative, on the substantive merits of the claims brought by Plaintiffs,” the petition reads.

The plaintiff is being represented by Thomas R. Kline, Lee B. Balefsky and Michelle L. Tiger, of the Philadelphia firm Kline & Specter.

Hibler is asserting claims of strict liability, negligence, common law fraud, negligent misrepresentation, negligent infliction of emotional distress, breach of warranty, gross negligence, and violation of consumer protection laws.

The federal case number is 2:13-cv-04932-TON. 

A New Jersey attorney representing retailer PetSmart Inc. has removed to

Andrew S. Turkish

U.S. District Court a personal injury suit initiated last month at the Philadelphia Court of Common Pleas by a city woman who says she sustained serious bodily injuries after falling at one of the defendant’s stores.

Lawyer Andrew S. Turkish, of the firm Clausen Miller, filed the transfer petition Jan. 16 at the Eastern District of Pennsylvania.

Turkish asserts Maria Chirico’s lawsuit, which was filed in mid-December in state court by Philadelphia attorney Arthur S. Novello, of the firm Dashevsky, Horwitz, Kuhn and Novello, belongs in the federal venue because there is diversity of citizenship among the parties.

Chirico resides in Philadelphia while PetSmart is a Delaware corporation with its principal place of business in Arizona.

In his filing, Turkish wrote that on Jan. 9, he sent Novello a letter requesting that Novello stipulate the amount in controversy is $75,000 or less.

Turkish then spoke with the plaintiff’s lawyer by phone, he noted, and was told he would be hearing back about the matter, but he never did.

“Having not heard back from the plaintiff, I must assume he cannot stipulate to damages and therefore have decided to file this removal application,” the defense lawyer wrote.

In her complaint, the plaintiff says she was shopping at the PetSmart store at 2360 W. Oregon Avenue back on June 22, 2012, when she slipped on a wet area of the floor near the checkout aisle.

Chirico faults the business for allowing water, urine and other liquids to accumulate on the floor, an obvious safety hazard to business invitees.

As a result of the incident, the plaintiff claims she suffered a host of physical injuries, including, but not limited to, neck and back disc injuries, sprains and strains, spinal stenosis, contusions, muscle and tendon tears, and aggravation of degenerative issues.

Chirico alleges she had to spend various sums of money on medical care and that she suffered a loss of earnings and earning capacity as a result of her inability to work while recovering from the accident.

She accuses PetSmart of negligence for failing to keep the premises in a safe condition, knowingly permitting a dangerous and unsafe condition to exist at its store and disregarding the rights and safety of the shopping public.

In her suit, the plaintiff says she is looking for damages in excess of $50,000.

The state case ID number is 131201440 and the federal case number is 2:14-cv-00274-TON.

The state’s highest court has agreed to take up the appeal of a Bucks

Tom Kline

County student who was originally awarded $14 million by a jury after she lost her leg in a school bus accident, an award that was later reduced to $500,000 because of a damages cap against localities.

In a Jan. 16 per curiam order, the Pennsylvania Supreme Court granted a portion of the petition for allowance of appeal that had been filed by lawyers representing Ashley Zauflik, whose left leg was amputated after she was run over by a Pennsbury School District bus back in 2007.

The case, which garnered big headlines in the Philadelphia region, was controversial because of the large disparity between the jury award and the reduced figure that came after an appeals court ruling.

In early July of last year, a Commonwealth Court panel affirmed a Bucks County Common Pleas Court order that molded the plaintiff’s verdict from $14,036,263.39 to $500,000 because of a damages cap against school districts and municipalities under the Pennsylvania Political Subdivision Tort Claims Act.

The Commonwealth Court panel had acknowledged the tragic circumstances of the case in its decision, but nevertheless determined that the jury award far exceeded the state law cap of damages in such personal injury cases.

“We are constrained by the precedential case law that has previously upheld the constitutionality of the statutory cap of the Tort Claims Act multiple times,” the appeals panel had written this summer. “It is the role of the General Assembly, not this Court, to make the difficult policy decisions and enact them into law if such decisions receive the support of the necessary majority.”

In its per curiam order issued on Jan. 16, the Supreme Court stated that while it would hear the plaintiff’s appeal, it would limit the number of issues to come before the court.

One issue the high court will address is whether the state’s Political Subdivision Tort Claims Act violates equal protection principles in this case, where the statutory cap reduced the jury’s verdict by more than 96 percent because Zauflik was injured by a local agency that operated the school bus that ran her over.

The plaintiff’s attorney, Tom Kline, has raised this issue in arguments, saying that the cap wouldn’t have been an issue, and his client would likely have received the full multi-million dollar award, if the bus had been operated by a private transportation company instead of the school district itself.

Another plaintiff’s argument on appeal is that the liability cap violates equal protection principles in this case since the Pennsburg School District had purchased $11 million in taxpayer-funded insurance, money that could have been used to pay the jury award.

Other issues to come before the Supreme Court are whether the liability cap violates Zauflik’s right to a jury trial, whether the cap infringes on judicial power, whether it violates the “open courts” provision in Article I, Section 11 of the Pennsylvania Constitution by forcing a more than 96 percent remittitur of the jury’s verdict and therefore denies a full redress of Zauflik’s injuries, and whether the cap violates the guarantee against liability limitations set forth in Article III, Section 18 of the state constitution, where this is not a workers’ compensation matter, according to the court order.

It was unclear when exactly the appeal would appear on the high court’s calendar.

This summer, Commonwealth Court Senior Judge Rochelle S. Friedman broke with the majority; writing in a dissent that she believes the statutory cap is unconstitutional because it violates Zauflik’s right to receive the jury’s full award.

“While there is no statutory prohibition against Pennsbury’s conduct, had transportation been provided by a private transportation company, Zauflik would have been entitled to receive the full benefit of the jury’s award of over $14,000,000,” Friedman wrote at the time. “Surely the legislature can devise legislation that more fairly and adequately addresses this gross disparity.”

Kline, Zauflik’s attorney, previously went on record calling the statutory cap a “manifest injustice.”

A state appellate court panel taking up the consolidated appeals of 19

Pa. Superior Court President Judge Susan Peikes Gantman

separate asbestos injury and wrongful death cases out of Philadelphia has upheld decisions by the trial court to transfer the mass torts out of the First Judicial District of Pennsylvania and into the Northampton County Court of Common Pleas.

The plaintiffs in the consolidated cases, who allege either they or their relatives developed various cancers due to asbestos exposure, argued the trial court was wrong to grant defense motions to transfer venue to the northeastern Pennsylvania court based on the doctrine of forum non conveniens.

Plaintiffs’ lawyers argued the trial court abused its discretion because the defendants failed to meet their burden of proof for a venue transfer.

In one of the cases, husband and wife plaintiffs Raymond and Joyce Stettler asserted the trial court abused its discretion by ordering that their case be coordinated with a prior ongoing case that had been initiated by Raymond Stettler in Northampton County.

The allegations in the various cases are similar, namely that individuals were diagnosed with illnesses due to their exposure to asbestos in the workplace.

Most of the plaintiffs or their decedents worked at Bethlehem Steel.

Some cases contain claims of secondary exposure of workers’ family members of asbestos fibers in the home, mostly through the workers’ clothing, the record shows.

The record further shows that none of the appellants live in Philadelphia; most reside either in Northampton County, or adjacent Lehigh and Carbon Counties.

A parallel set of cases, many of them containing the same plaintiffs, is already playing out in Northampton County.

The main distinction between the Philadelphia and Northampton cases, the appellate ruling states, is that those filed in Philadelphia involve malignancies while those that had been brought in Northampton County involve non-malignant injuries.

In their motions to transfer venue, Hobart Brothers Co. and other co-defendants argued that venue in Philadelphia was inconvenient, vexatious and oppressive because the actions do not in any way involve or relate to Philadelphia, other than the fact that several of the defendants did other business in Philadelphia that was unrelated to the underlying litigation.

At the same time, the defendants argued that venue was proper in Northampton County because most of the plaintiffs lived, worked or sought medical treatment in that county, and that that venue would provide easier access to witnesses, worksites, and medical records.

The Superior Court panel even noted that during oral arguments on the transfer motions, attorneys representing the plaintiffs conceded that their clients chose Philadelphia in which to file suit “based on counsel’s perception that Philadelphia juries would generally be more sympathetic to plaintiffs than juries might be in Northampton County.”

The trial court granted the defense motions to transfer venue at various times throughout 2012, the record shows.

On appeal, the plaintiffs raised two issues: whether the trial court abused its discretion in not requiring the defendants to show with detailed on-the-record information that the plaintiffs’ chosen forum, Philadelphia, was oppressive or vexatious to the defendants, and whether the trial court, in the Stettler case only, abused its discretion by ordering that the case be coordinated with the prior Stettler case.

In their ruling, the appellate judges struck down the argument on the first issue, determining that venue was properly transferred.

“After review, we discern no abuse of discretion in the trial court’s determination that where the exposure allegedly occurred in Northampton County, where access to most fact witnesses and evidence, in particular, medical treatment records, are in, or must closer to, Northampton County, and where there is ongoing litigation of previous filed, related asbestos cases, that ‘trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute,’” the ruling states.

The panel further wrote that the second issue, the one involving only the Stettler case, was rendered moot by the fact that the panel affirmed the transfer of all of the cases to Northampton County.

“We conclude that the trial court properly determined that transfer to Northampton County, where parallel cases were already in progress, would provide easier access to witnesses or other sources of proof,” the appellate panel wrote. “If there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand.”

Those who heard the appeal were Superior Court President Judge Susan Peikes Gantman, Judge Jacqueline Shogan and Senior Judge William H. Platt.

The United States has been dismissed as a defendant in a lawsuit initiated

U.S. District Judge J. Curtis Joyner

by a woman who says she was severely injured when her vehicle was struck by a van operated by a member of the military who didn’t have permission to drive the government-owned vehicle at the time.

U.S. District Court Judge J.Curtis Joyner, sitting in the Eastern District of Pennsylvania, granted a motion to dismiss that had been filed by government lawyers in a case brought by Crystal Pollard.

The plaintiff claimed she was injured on Nov. 23, 2011, when, while driving on Front Street toward Oregon Avenue in South Philadelphia, she was struck by a General Services Administration van operated by Army Sgt. John Wold.

The lawsuit stated that Wold at the time was coming off of the Interstate 95 access ramp without properly looking out for other traffic, without having his vehicle under proper control, and without checking to make sure his vehicle had a clear distance to cross through the intersection.

The collision occurred at about 3:30 in the morning.

Records show that at the time of the accident Wold was on leave from his post at Fort Dix in New Jersey and was intending to go home for the Thanksgiving holiday.

He had been driving to Philadelphia International Airport at the time.

Court records show that Wold had been made aware of a governmental policy that limited use to General Services Administration vans by military members to “very specific cases.”

“In general, GMV’s may be used to transport official travelers; when service is necessary because of emergency situations; to meet security requirements, or when DOD scheduled bus service or public transportation is unresponsive and use of taxicab or other commercial service is not practical,” reads Fort Dix’s Joint Base Policy, which was referenced in the judge’s Jan. 8 memorandum and order.

An attachment to the policy states that travel to commercial terminals in general by military members is not an authorized use of the vans, according to the judicial ruling.

Wold was also governed by a Department of Defense regulation that says the use of all DOD motor vehicles shall be restricted to official purposes only.

In a sworn affidavit, Maj. Alfred C. Lenhard, II, Wold’s supervisor, asserted that Wold’s use of the van violated both the Joint Base Policy and the DOD regulation.

Lenhard also stated that the accident occurred outside of Wold’s working hours and was not within the scope of Wold’s duties.

In seeking dismissal, government lawyers contended that the plaintiff lacked subject matter jurisdiction because the vehicle accident occurred outside of the scope of Wold’s U.S. Army employment.

The plaintiff alleged in her complaint that the defendant violated the Federal Tort Claims Act, which provides a limited waiver of the United States’ sovereign immunity.

In her response to the government’s motion to dismiss, Pollard, the plaintiff, admitted that she didn’t have any substantive evidence with which to rebut the scope-of-employment certification by Lenhard, the supervisor.

“The Plaintiff has clearly represented to the Court that she cannot bear her burden of proof of establishing the Court’s jurisdiction,” Joyner, the judge, wrote in his memorandum. “In contrast, Defendant United States of America has provided evidence that Sergeant Wold was using the GSA van contrary to governing base policy at the time of his accident with the Plaintiff.

“Accordingly,” Joyner continued, “the Court finds that Sergeant Wold was acting outside of the scope of his employment at the time of the accident, and dismisses the claims against Defendant United States of America for lack of subject-matter jurisdiction.”

The Pennsylvania Commonwealth Court has denied an appeal by the state

Pa. Commonwealth Court Judge Mary Hannah Leavitt

Department of Transportation in a case in which the agency was sued over a crash at a busy western Pennsylvania intersection, an accident that resulted in the deaths of four-people following a two-vehicle accident.

The three-judge panel in its Jan. 22 opinion affirmed two prior orders by the Beaver County Court of Common Pleas, one denying PennDOT’s motion for summary judgment and the second denying the defendant’s post-trial motion for judgment notwithstanding the verdict.

The litigation stemmed from an Oct. 24, 2009, accident involving two vehicles at the intersection of state routes 51 and 168 in South Beaver Township, Beaver County.

One vehicle, a Dodge Neon operated by Louis Young, IV, struck the passenger side of a Ford F-150 pickup truck as the pickup was crossing Route 51.

PennDOT’s expert estimated that the Neon was traveling at 116 miles per hour at the time of the collision, which took the lives of Young, his passengers, Bryan Atkinson and Joshua Tate, and Jessica DeMarco, who was the passenger and wife of Daniel DeMarco, the driver of the Ford.

Daniel DeMarco survived the accident but was seriously injured.

At the time of the accident, there were stop signs on Route 168, but none on Route 51.

The intersection is not typical, with Route 168 jogging across Route 51 at a “skewed” angle of about 50 degrees, the record shows.

Records further show that there had been about 45 collisions, several involving fatalities, in the decade before the accident.

Because of its history, township officials and residents appealed to PennDOT for a traffic study to look into the installation of a traffic signal; the agency stated it would only conduct the study if the municipality agreed to finance the installation of the traffic signal, the record shows.

After the accident, Daniel DeMarco and the estates of Jessica DeMarco, Young, Tate and Atkinson filed suit against PennDOT over claims that the absence of a traffic signal at the intersection was a major factor in causing the accident and that the agency failed to maintain its roads in a safe manner.

In September 2011, PennDOT moved for summary judgment, arguing that it had no duty to install a traffic signal and that the Neon’s high rate of speed was the superseding cause of the accident.

The trial judge subsequently denied summary judgment.

Jurors ended up finding Young 67 percent liable for the accident and PennDOT 33 percent liable.

In a post-trial motion, PennDOT maintained that it had adopted a regulation that transferred the duty to install traffic signals on state roads to municipalities.

PennDOT ultimately argued that it was the responsibility of the municipality in which the accident occurred to install the traffic light.

The appeals judges pointed out that while the Pennsylvania Motor Vehicle Code grants both PennDOT and localities the ability to install traffic signals and other traffic control devices on state roads, a municipality must obtain PennDOT approval to install a traffic device on a state road.

By contrast, PennDOT doesn’t need municipal permission to install traffic control devices.

PennDOT attorneys argued that it couldn’t be held liable for accidents where the absence of a traffic signal device has made the highway unsafe because its regulation has transferred responsibility for such traffic signals to municipalities.

The trial court held that the regulation didn’t relieve PennDOT of its duty to maintain a state highway in a “safe” condition, records show.

PennDOT argued that the trial court erred given case law.

The plaintiffs, meanwhile, countered that the regulation doesn’t effect the outcome of their case because PennDOT’s duty extends beyond the installation of traffic signals.

They argued that the agency has a duty to make state roads safe, and that the duty cannot be delegated by a regulation.

“Plaintiffs argue the key question is not whether PennDOT had a duty to install a traffic signal but whether the intersection in question constituted a dangerous condition, rendering each state road not safe for its intended purpose,” the appellate ruling stated.

The appeals judges wrote that they agree with PennDOT that the vehicle code doesn’t require it to install traffic control signals, but they determined that the agency still has a duty to ensure that state highways are safe for their “reasonably foreseen uses.”

“Indeed, no agency can, by regulation, relieve itself of a duty of care or expand its own sovereign immunity beyond the scope allowed by the legislature,” the panel wrote. “In summary, the failure to remedy a dangerous condition amounts to a breach of PennDOT’s duty of care.”

The appeals judges further noted that what constitutes a dangerous condition is a question of fact for the jury.

“Here, Plaintiffs introduced evidence sufficient for a jury to find that the intersection of State Routes 51 and 168 was a dangerous condition due to the design of the intersection and the absence of a traffic signal,” the ruling states. “The jury so found.”

The appellate panel determined that the trial court didn’t err in denying PennDOT’s motion for judgment notwithstanding the verdict.

On the second issue, the plaintiffs asserted that even if a criminal or negligent act of a third party, such as speeding, occurred, a defendant is not absolved from liability if the act was foreseeable.

The plaintiffs argued that PennDOT was not entitled to summary judgment because it is foreseeable that vehicles will speed, and foreseeability is a question of fact for the jury to decide.

The appeals judges agreed with the plaintiffs’ argument.

The decision was written by Judge Mary Hannah Leavitt.

The other participating jurists were Commonwealth Court President Judge Dan Pellegrini and Senior Judge Rochelle S. Friedman.

A suburban Philadelphia woman is suing the Transportation Security Administration over allegations that she sustained a variety of injuries after a TSA agent knocked her to the ground while the plaintiff was preparing to board a San Francisco-bound flight at Philadelphia International Airport last year.

Freya B. Koss, who resides in Wynnewood, Pa., filed suit last week against the TSA, the John Doe agent and the U.S. Government over injuries she claims to have sustained on March 31, 2012 at the airport.

Koss had just gone through the security scanning process at the TSA checkpoint at Gate C2 when, while she was retrieving her personal belongings, she was knocked over by the male TSA agent, who is not identified by name in the lawsuit.

The man was apparently not paying attention to his surroundings when he backed up into the plaintiff, the suit claims.

The plaintiff ended up smacking her left hip on the ground and suffered injuries to her legs, back and other areas of her body, the complaint states.

The injuries included fractures, torn ligaments, bruises and contusions, muscle tears, disc herniations, as well as psychological injuries, humiliation, embarrassment, anxiety, and a loss of life’s pleasures, the suit says.

Koss, who claims she incurred medical costs due to her need for doctors’ treatment, faults the TSA agent for failing to watch where he was going at the time he allegedly backed up into her.

The defendants are accused of general negligence.

Koss, who is being represented by Bucks County attorney W. Austin Allen, II, seeks $150,000 in monetary damages, as well as interest, costs and other court relief.

The complaint was filed on Sept. 6 at the U.S. District Court in Philadelphia.

The federal case number is 2:13-cv-05208-TON. 

A truck driver from suburban Philadelphia is suing Florida-based Ryder

Marc A. Weinberg

Fleet Products Inc. and others over an incident in which je claims he suffered a crushed hand from a vehicle liftgate that was made by Ryder.

David and Nicole Orzechowski, a husband and wife from Bucks County, filed a federal civil action on Jan. 28 at the U.S. District Court in Philadelphia against Ryder, New York-based Mike’s Heavy Duty Towing Inc. and California-based Palfinger North America Group over a Feb. 4, 2012, incident that occurred at about 5:30 in the morning near 71^st and Austin Streets in New York City.

At that time, David Orzechowski, who was employed as a truck driver, realized his liftgate had broken down.

Mike’s Towing was dispatched to aid the plaintiff in fixing the malfunctioning product, the record shows.

While the Mike’s Towing mechanic was at the scene, the lawsuit states, he asked the plaintiff to help him when the liftgate came down and nearly crushed him.

At that point, Orzechowski attempted to grab the closing gate to prevent it from crushing the worker, but while doing so his left hand and right shoulder were struck by the liftgate, which is a mechanized device that is attached to the back of some commercial box trucks to assist with the lifting of items.

The plaintiff claims his hand was severely crushed in the process.

The lawsuit says that Orzechowski ended up sustaining a host of physical injuries, including, but not limited to, a crushed index finger with resultant amputation, multiple contusions, sprains and strains, chronic swelling, significant nerve damage, and emotional and psychological trauma.

Orzechowski says he has had to undergo emergency and follow-up hospitalization for treatment for his injuries, and that he will require periodic hospitalization for an indefinite time in the future.

He also claims he experienced great pain and suffering, disfigurement, limitations on his bodily movements and functions, and limitation of the ability to pursue normal occupational and social activities.

The complaint says that the plaintiff had to undergo surgery, continues to attend physical therapy sessions, both at outpatient facilities and at home, and that he has experienced financial setbacks and income losses as a result of his ordeal.

The lawsuit accuses Ryder of strict liability for designing, manufacturing and distributing a defective product.

The liftgate, the suit states, was defective in that it contained an improper sized hose that attaches to the product and its component, it failed to contain a safety guard so as to prevent the incident, it failed to contain adequate warnings, it failed to comply with various codes and standards, and that it failed to have an adequate hydraulic system.

“The defective condition of the Liftgate was a substantial factor in causing Plaintiffs’ injuries and losses,” the lawsuit reads. “As a result of the tortuous activity hereinabove described Defendant, Ryder, is strictly liable to Plaintiff for his injuries.”

The complaint also contains additional counts of breach of warranty, negligence, and loss of consortium.

The plaintiffs are being represented by Jenkintown, Pa. lawyer Marc A. Weinberg, of the firm Saffren & Weinberg.

The federal case number is 2:14-cv-00617-PD.

A federal judge in Harrisburg has been assigned a products liability case

U.S. District Judge Yvette Kane

stemming from a fire allegedly caused by a faulty heating pad, litigation that was initiated this past fall in state court in Philadelphia and later transferred to the federal venue in that city.

Records at the U.S. District Court for the Middle District of Pennsylvania show that Judge Yvette Kane will now be presiding over a case brought by Cassandra Bowman, a Chambersburg, Pa. resident who filed suit in September against Florida-based Jarden Corp. and Jarden Consumer Solutions over injuries she claims to have sustained after being burned by a malfunctioning heating pad made by the defendants.

James H. Heller, a lawyer with Philadelphia law firm Cozen O’Connor, had filed a removal petition in late November, maintaining the case belonged at the federal courthouse in Philadelphia and not the Philadelphia Court of Common Pleas, where it had been filed in September by attorney Derek R. Layser.

The Pennsylvania Record reported last year on the case, which involves claims that the plaintiff was injured by the defendant’s Sunbeam heating pad after the device became overheated and caused her bed to catch fire.

Bowman says that the incident, which occurred in the spring of 2011, caused her to sustain second-degree burns on her hands and first-degree burns on her back.

She claims to have developed permanent scarring as a result of the ordeal.

Heller, the defense lawyer, subsequently filed a petition asserting his view that the matter belonged in federal court because of diversity in citizenship.

In his Nov. 27 removal notice, Heller also wrote that the litigation should be played out in U.S. District Court because the amount in controversy is expected to be in excess of $75,000.

Citing Third Circuit Court of Appeals precedence, Heller wrote that if a plaintiff’s complaint does not state a specific damage sum, “the amount in controversy is not measured by the low end of an open-ended claim, but rather by a reasonable reading of the value of the rights being litigated.”

Heller had originally filed a petition to transfer the case to the Eastern District of Pennsylvania, citing the fact that that court is in the federal judicial district embracing Philadelphia County, where the action was originally filed.

Records show, however, that Eastern District Judge William H. Yohn, Jr., transferred the matter to the federal court in Harrisburg in late December of last year.

In a Dec. 3 motion, Heller, the lawyer representing Jarden Corp. and co-defendant Sunbeam Products Inc. had requested a transfer to Harrisburg because the federal court there was closer to the plaintiff’s Franklin County home than the federal court in Philadelphia.

Heller had written that the case had no connection to the City of Brotherly Love.

“Under the facts of this case, the convenience of the parties, the interests of justice, and sound judicial administration favor transferring this action to a forum with a connection to this litigation,” Heller had written in early December. “The Middle District of Pennsylvania is connected to this litigation because it is the home district of the Plaintiff, the place in which she suffered her injuries and the location of various witnesses and evidence identified by Plaintiff’s Complaint.”

The court agreed.

In her lawsuit, Bowman claims that the defendants’ heating pad caused a fire to burn through her mattress and three comforters that were on her bed at the time.

The woman had fallen asleep at the time the device allegedly malfunctioned and caught fire.

A New Jersey woman has filed a medical malpractice and personal injury

Thomas J. Duffy

claim against a Pennsylvania healthcare facility and one of its physicians over claims that the defendants failed to detect a large malignant tumor growing inside of her abdomen despite the fact that she had had surgery in that region of her body just months prior.

Lynette Jones, who resides in Laurel Springs, N.J., is suing Rosemont, Pa.-based Academic Urology, The Bryn Mawr Urology Group and doctor Ilia S. Zeltser over injuries she allegedly sustained as a result of the defendants’ combined negligence.

The complaint says that Jones went to Zeltser for treatment of a mass on the upper pole of her left kidney in the spring of 2011.

The woman subsequently underwent laparoscopic surgery to treat the condition on May 26 of that year, and had a follow-up with the physician less than a month later on June 10.

During the consultation, Zeltser informed Jones that the pathology report for her surgery was benign and that she should return for another follow-visit in six month’s time.

When she returned to the doctor’s office on Dec. 12, Jones was told that an ultrasound performed two days earlier came back negative and that her condition remained benign.

Just over two months later, in mid-February 2012, Jones began experiencing abdominal pain and went to The Hospital of the University of Virginia, which is where she attended college.

Testing ultimately revealed that Jones had a large abdominal mass growing inside of her.

She underwent surgery that same day, and when doctors opened her up, they discovered that she had a large malignant tumor, according to the lawsuit.

Prior to that day, the complaint alleges, Jones had no means to know or discover that she had a large metastatic mass growing in her abdomen.

The lawsuit says that Zeltser, the physician, deviated from the standard of care and was negligent in rendering treatment to Jones by failing to properly perform surgery and conduct follow-up care for his patient.

Zeltser also deviated from the standard of care and was negligent in failing to properly advise the plaintiff of the true nature of her abdominal condition following the surgery he initially performed on her, the suit states.

As a result of the doctor’s alleged negligence, cancer was allowed to grow and metastasize inside of the plaintiff’s body, the complaint says.

Jones has sustained serious injuries including an increased risk of cancer and an “actual occurrence and growth of cancerous tumors, which have resulted in her need for extensive medical care and incurring extensive medical costs,” the lawsuit states.

Jones seeks unspecified compensatory damages as well as costs and delay damages.

She is being represented by Philadelphia attorney Thomas J. Duffy of the firm Duffy & Partners.

The federal case number is 2:14-cv-00736-JP.

A federal judge in Philadelphia has thrown out a premises liability action

U.S. District Judge Gene E.K. Pratter

that had been filed against a homeowners association by a woman who says she broke her ankle after slipping on black ice at the defendant’s property.

Anna Modica sued Maple Meadows Homeowners Association over a slip-and-fall incident that occurred during the early morning hours of Jan. 4, 2011, in which the woman, who was visiting her daughter at the Maple Meadows condominium complex in Conshohocken, Pa., alleged she became injured after falling on black ice.

The plaintiff claimed that she had been looking down for ice in the parking lot, but that she didn’t see any until after she fell to the ground.

A witness who inspected the area after the fall had not seen any salt, and photos taken two days after the incident showed a black ice patch at the location of Modica’s fall, records show.

In her complaint, Modica argued that Maple Meadows breached its duty to keep the premises safe.

The defendant moved for summary judgment on two grounds: the so-called “hills and ridges” doctrine and its lack of notice, either actual or constructive, of the ice upon which Modica allegedly fell.

In a Jan. 31 memorandum and order, U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, wrote that Modica had not carried her burden to articulate or identify evidence that the defendant had notice of the ice upon which she asserts she fell.

“Once Maple Meadows, in its present Motion for Summary Judgment, has pointed to evidence that it had no actual or constructive notice of the ice, Ms. Modica must then ‘rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings [or] legal memoranda,’” Pratter wrote. “But those parts of the record to which Ms. Modica points amount to mere conjecture and rhetorical supposition which ‘could not lead a rational trier of fact to find for [her], because she cannot establish that Maple Meadows had actual or constructive notice of the ice upon which she allegedly fell. The Motion for Summary Judgment must therefore be granted.”

The evidence to which the plaintiff pointed, the judge wrote, “does not support her argument that the black ice upon which [she] allegedly slipped was ‘known’ to Maple Meadows …”

Pratter wrote that Modica cannot succeed in establishing notice by claiming that Maple Meadows knew there were snow piles and knew that those piles would melt and refreeze causing dangerous conditions in the middle of the night.

The plaintiff’s fall occurred around 3 in the morning, her complaint shows.

To establish constructive notice, a plaintiff must produce evidence that the dangerous condition existed long enough such that, but for the exercise of reasonable diligence, the defendant would have discovered it, the judge noted in her memorandum.

The question under the first prong of the test, Pratter wrote, is one of actual timing, not one of knowledge.

“Ms. Modica cannot proceed under the first method because she has produced no evidence as to when ice in fact formed,” Pratter wrote. “To the contrary, Ms. Modica had been out earlier on the day before her fall, and returned just hours before the accident, at around 10:30 p.m., and she testified that she did not notice any areas of ice in the parking lot.

“The weather data itself does not provide sufficient indication as to when – or if – ice formed.”

Pratter also wrote that there was no evidence presented on the physical issue of the relationship of time, temperature and quantity of depth of layout of water, or of any chemical or other existing surface treatment of the parking lot, to persuade the court that even if there had or could have been melting and refreezing, that such changes likely occurred.

“In short, ‘[d]espite the meteorological evidence that the temperature had fallen below freezing in the hours before the accident, there was no evidence that ice had existed for any length of time before’ Ms. Modica fell on it,” the memorandum states.

Without any evidence that the black ice was observable for any significant length of time prior to the accident, a jury could not reasonably infer that the defendant had constructive notice of the hazardous condition, the judge noted.

“And without evidence of when – or if – ice actually formed on the spot on which she fell, Ms. Modica cannot show that the ice was there long enough to put Maple Meadows on constructive notice,” Pratter wrote.

The judge said what appears to be lurking in her argument was the notion that Maple Meadows should not be able to escape liability when it had failed to inspect the parking lot in the days after it had the lot plowed and salted.

Such a failure-to-inspect theory, however, is not viable under this case, the judge wrote, because it is incompatible with the “conceptual underpinnings of the constructive notice doctrine.”

“In fact,” Pratter wrote, “under the governing case law, such a theory would be tautological and would permit an end run on the general means of establishing constructive notice.

“To say that Maple Meadows had constructive notice because it would have seen ice if it had inspected, and therefore, that it should have inspected, for it if had, it would have had notice, is entirely circular reasoning.”

Pratter wrote that a defendant’s duty to inspect is subject to a reasonableness standard that informs the inquiry of whether the defendant has constructive notice.

“Constructive notice is an indirect means for imposing a duty to take reasonable steps to prevent foreseeable harm – constructive notice arises from, but does not impose, the duty to inspect,” the judge wrote.

The judge wrote that in this case, without evidence of when a dangerous condition developed, the plaintiff cannot show that the defendant would have discovered the condition even if it inspected.

In the end, the judge granted the defendant’s motion to dismiss.