The Legal Intelligencer Blog

Two Named to Fill Vacancies on U.S. Middle District Court

By Saranac Hale Spencer
Of the Legal Staff

President Obama has nominated Matthew Brann and Malachy Mannion for the two vacant seats on the bench in the Middle District of Pennsylvania.

Brann, a partner at Brann Williams Caldwell & Sheetz in Bradford County, is a former chairman of the county’s Republican committee and is a graduate of Penn State’s Dickinson School of Law.

Mannion has been a magistrate judge in the Middle District since 2001 and, before that, was an assistant U.S. attorney there. For four years, he was in private practice as a principal at Hourigan, Kluger, Spohrer & Quinn in Scranton.

"Malachy Mannion has served the public as a U.S. attorney and as a federal magistrate judge, and I will push for a speedy confirmation process in the Senate. I have known Mal for years and he is an excellent lawyer whose integrity is beyond reproach," Senator Robert P. Casey Jr., D-Pa., said in a press release. "Matthew Brann, along with an impressive career in private practice, has demonstrated a commitment to the community that will make him an outstanding judge.”

"On a bipartisan basis, I have been working closely with Sen. Casey on judicial nominations for our state to help confirm qualified, experienced individuals with unquestioned honesty and integrity. I am confident that these two nominees will live up to these standards and hope that the Senate confirms them in a timely manner," Senator Pat Toomey, R-Pa., said in a press release.

The seats became open upon A. Richard Caputo’s retirement in 2009, and Thomas Vanaskie’s elevation to the U.S. Court of Appeals for the Third Circuit in 2010.

The reinforcements, if confirmed, would restore the Middle District bench to full strength.

“We try not to dwell on it,” Yvette Kane, chief judge in the Middle District, said earlier this week of the four active judges who have been saddled with heavy caseloads in absence of a full complement on the bench.

The national average number of days from the announcement of a vacancy to the nomination to fill it is 399, according to Russell Wheeler, of the Brookings Institute. Wheeler has published several studies on the judicial nomination process and its politics.

No Contempts for First 2 Weeks of New Fugitive Court

By Amaris Elliott-Engel
Of the Legal Staff

Court leaders have agreed that any defendants voluntarily surrendering on bench warrants won’t face contempt proceedings for the first two weeks of the First Judicial District’s new bench warrant court starting Monday, defense attorney Michael J. Engle said today.

Engle said he was one of many people meeting with state Supreme Court Justice Seamus P. McCaffery on the new court Thursday.

Engle said that the Pennsylvania Association of Criminal Defense Lawyers and other members of the defense bar were unsuccessful in getting the court to delay the start of the court by two weeks, but court leaders did agree to phase in contempt proceedings for defendants who voluntarily surrender.

However, defendants picked up involuntarily will face potentially contempt trials immediately, Engle said.

The FJD is starting a dedicated courtroom to hold contempt proceedings and bench warrant hearings for defendants who have failed to appear for prior court dates. Philadelphia Municipal Judge Joseph C. Waters Jr. will preside.

About 40 to 45 attorneys attended a training convened by the PACDL, the Philadelphia Bar Association’s criminal justice section and the Defender Association of Philadelphia, Engle said.

There are close to 100 attorneys who have agreed to take court appointments to handle the lists of fugitives in the court.

As the system is set up right now, there is no way to do a conflict check, Engle said.

The plan is to have lists of cases called at 9:30 a.m., 11:30 a.m. and 1:30 p.m., Engle said.

The afternoon list is supposed to involve the defendants in custody, Engle said. Court leaders have expressed an interest in having the bench warrant hearings held over video-link between the Philadelphia Prison System and the Criminal Justice Center, Engle said.

The defense community has raised the issue that mandating video appearances for defendants in custody “infringes upon the defense constitutional rights,” Engle said. “It makes it impossible for defense attorneys to meet with and adequately consult with the client.”

One idea to address that problem is to have the defense attorney go up to the prison in the morning and meet with the defendants in preparation for the afternoon list, Engle said.

But if the case proceeds into a contempt trial, the question has not been resolved if the lawyer should stay up at the prison and be there in person with his or her client or if the lawyer should be in the courtroom where the evidence is, Engle said.

Liberal Group Defends Phila. Courts in Report

By Amaris Elliott-Engel
Of the Legal Staff

In the wake of criticism of the Philadelphia civil court system from defense-minded and conservative quarters, Keystone Progress, a Pennsylvania liberal advocacy group, said in a report today that the First Judicial District “has an appropriate number of cases relative to its size, but it handles them quickly and efficiently with no apparent favoritism towards plaintiffs.”

The report was written by David Ward and Michael Morrill of Keystone Progress.

For two years in a row, Philadelphia was called a “judicial hellhole” by a conservative judicial watchdog, the American Tort Reform Foundation. ATRA said that reverse-bifurcation in asbestos trials put defendants in a quandary because juries were focusing on the plaintiffs’ injuries before focusing on whether the defendants could have caused the alleged injuries and that the First Judicial District was the site of “forum shopping.” ATRA said it was mulling the removal of Philadelphia from its “hellhole” list because of an order issued by Philadelphia Common Pleas Court Judge John W. Herron, administrative judge of the trial division.

The order asked that lawyers for out-of-state asbestos plaintiffs file their cases in other forums in order to allow the FJD to get its asbestos case inventory back into compliance with American Bar Association standards. The order also ended reverse-bifurcation in all asbestos cases, limited pro hoc vice counsel to trying two cases a year in Philadelphia, and barred punitive damages for all mass tort cases – at least on a foreseeable basis.

Keystone Progress criticized ATRA’s report.

“Though recent reports have attempted to frame Philadelphia courts as extreme, they are actually well within the bell curve for total civil caseload in respect to population when compared to other counties,” the Keystone Progress report said.

Philadelphia dropped 40 percent in the median amounts awarded in tort trials between 2001 and 2005 according to Bureau of Justice Statistics, the Keystone Progress report said.

Philadelphia also ranks in the lower 30 percent of all major metropolitan areas in terms of damage amounts, the Keystone Progress report said.

Morrill said in an interview that Keystone Progress has started a new advocacy campaign regarding Pennsylvania’s courts because legal protections for the environment, consumers and women’s issues can only be protected if courts are fair.

The report on Philadelphia courts was the first part of the campaign, Morrill said.

Morrill also said that the funding for Keystone Progress’ new “Taking Back Our Courts” campaign is not funded by Pennsylvania trial lawyers, although trial lawyers did co-sponsor a Keystone Progress event a few months ago.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a judge siding with the Catholic Archdiocese of Philadelphia on the attorney-client privilege issue regarding 12 communications between outside counsel hired by the archdiocese and the former secretary of clergy charged with endangering the welfare of children allegedly abused by priests he supervised. As reporter Amaris Elliott-Engel writes, Philadelphia Common Pleas Court Judge M. Teresa Sarmina said during the last pretrial hearing before the trial opens today that she doesn’t see how defendant Monsignor William J. Lynn’s attorneys can establish that he sought counsel personally and separately from the interests of the archdiocese.

Also above the fold on Page 1, reporter Zack Needles writes that a federal judge has denied an oil and gas trade group’s petition to hold the U.S. Forest Service in contempt for allegedly delaying drilling projects.

Below the fold on Page 1, Zack Needles writes that a Philadelphia jury has awarded more than $3 million to a woman whose colon cancer went undiagnosed for nearly two years.

In more Regional News on Page 3, the 3rd U.S. Circuit Court of Appeals has ruled that admission into a pretrial intervention program bars defendants from bringing a federal civil rights suit over the underlying events of their arrest.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5 today is the Public Interest Page, as Lawrence Szmulowicz writes that the courts are showing a reluctance to protect victims of stalking.

In a Health Care Law column on Page 7, Vasilios J. Kalogredis and Karilynn Bayus write about the 3rd Circuit’s recent opinion on a physician’s employment contract dispute.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Phila. Court Collections Increase More Than 100 Percent

By Amaris Elliott-Engel
Of the Legal Staff

The First Judicial District’s collections of court fines and other costs have increased by more than 100 percent in the last five years, according to reports released by the state Supreme Court last week.

In 2007, court collections in Philadelphia were $10.9 million and in 2011, court collections were $22.4 million, according to court statistics.

Overall, in the state, the state judiciary reports that case filings have dropped 7 percent and total collections have increased 5 percent in the last five years.

The decline in court filings was due to a drop in the number of traffic citations issued, the Supreme Court said.

Court collections in 2011 totaled nearly $470 million in Pennsylvania, according to the Supreme Court. Forty-five percent of those collections go to the state, 35 percent to counties, 11 percent to municipalities, and 7.7 percent for crime-victim restitution, the court said.

An application allowing defendants to make payment online, “e-Pay,” appears to be contributing to higher court collection levels, Pennsylvania Chief Justice Ronald D. Castille said in a press release.

Court collections through e-Pay have risen to more than $130,000 per day, the court said.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story, writes reporter Amaris Elliott-Engel, is drugmaker GlaxoSmithKline asking the judge overseeing the federal multidistrict litigation regarding the diabetes drug Avandia to limit the contingency fees of attorneys representing individual plaintiffs to 25 percent of client awards. GSK said that in litigation “where, as here, the attorneys did not perform a substantial portion of the work, but rather benefited from coordinated discovery and other work performed by the plaintiffs’ steering committee,” the court should limit such fees, according to court papers.

Below the fold on Page 1 today, reporter Gina Passarella writes about the modest class action settlement for a group of amusement park-goers who said Palace Entertainment and Festival Fun Parks violated the Fair and Accurate Credit Card Transactions Act by printing receipts that contained the consumers’ credit and debit card expiration dates. The preliminary approval for the class in Hanlon v. Palace Entertainment Holdings will give individuals in the class a single free ticket to the amusement park.

On Page 3 of today’s Legal, reporter Zack Needles writes that the state Supreme Court, in Bruesewitz v. Wyeth, has vacated a Superior Court ruling in the products liability case of an 11-year-old autistic boy. This comes less than a year after the U.S. Supreme Court ruled 6-2 in the case that the federal National Childhood Vaccine Injury Act pre-empts all vaccination design defect claims brought against vaccine makers in state court.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today’s Appellate Law column is on Page 5, as Howard J. Bashman writes about how to repair the record on appeal to ensure that it reflects the full truth in all cases. “Unfortunately, it is not unusual for the record on appeal to fail to accurately reflect what actually happened before the trial court,” writes Bashman.

On Page 7, Peter F. Vaira writes about Eastern District Practice, discussing methods for federal criminal discovery and a new book he has read that deals with the topic.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW, written by Amaris Elliott-Engel, details the state Supreme Court’s rejection of a petition by Allegheny County to exercise its King’s Bench or extraordinary jurisdiction to determine if the county’s real property assessment system is constitutional.

On the bottom of Page 1, reporter Ben Present writes an allocatur story about the state Supreme Court granting the appeal of a convicted murderer who was denied the right to testify after the evidence phase of his trial had closed.

This week’s Page 3 story comes from Zack Needles, who writes that an Allegheny County trial judge has ruled that Pennsylvania law, rather than Texas law, should be used in deciding the sufficiency of evidence linking coal tar pitch volatiles to cancer in more than 60 products liability cases involving injuries that occurred in Texas.

There’s plenty more inside this week’s PLW, including Samuel C. Stretton’s weekly Ethics Forum, in which he tackles terminating relationships with uncooperative clients; Andrew D. Taylor’s Family Law commentary regarding Pennsylvania’s new Child Custody Act; a forgetful jury foreperson leading to an ineffective assistance claim; and a special needs trust allowing an auto-accident plaintiff to collect a settlement and keep her benefits.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The big news of the day is what’s going on in Harrisburg, where preliminary hearings are currently taking place for two former high-ranking officials implicated in the Jerry Sandusky sex abuse scandal at Penn State – former Athletic Director Timothy Curley and former Vice President of Finance and Business Gary Schultz. Reporter Ben Present is in the capital, where Mike McQueary, the graduate assistant who allegedly saw Sandusky rape a young boy in a shower in 2002, is expected to be taking the stand. "I would begin in excruciating detail as to what [McQueary] claimed to have observed and or heard in the showers, as if it were a movie in slow motion," said Theodore Simon, a Philadelphia criminal defense attorney who has defended several nationally followed trials.

Ben is posting live updates from the courtroom throughout the morning on his Twitter account. Follow him @BPresentTLI.

Reporter Amaris Elliott-Engel has a story in today’s Legal about the big changes coming to Philadelphia’s mass torts program, which is ending the consolidation of pharmaceutical cases into reverse-bifurcation trials with the new year. Philadelphia Common Pleas Court Judge John W. Herron, who was recently appointed the administrative judge of the trial division, said it is "incumbent upon administrators to constantly examine our protocols and our procedures.”

Today’s Page 3 regional news story comes from reporter David Gialanella of Legal affiliate New Jersey Law Journal, who writes that a putative class action has claimed Colgate-Palmolive’s anti-bacterial hand soap has no advantage over other hand soaps and may even be harmful. The suit alleges that Softsoap Antibacterial has a deceptive name that "implies that it will destroy more bacteria than ordinary hand soap," when in fact Colgate "has no competent and reliable support for these claims."

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In an Asset Management column, Mark L. Silow takes a look at the tax aspects of foreign investment in U.S. real estate. As Silow writes, “The reach of U.S. income taxation extends to both U.S. citizens and residents on a worldwide basis, and to nonresident, noncitizens to the extent of their U.S. source income.”

In today’s Bankruptcy Update, Francis J. Lawall and James C. Carignan write that pre-petition services paid for after bankruptcy may still qualify for defense. They write about the “new value” defense, which “enables a recipient of a preferential payment potentially to reduce its liability to the extent of the value of goods or services such creditor provided to the debtor on an unsecured basis during the applicable pre-bankruptcy period.”

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Check back to the blog soon for Amaris Elliott-Engel's reporter's notebook, which will discuss some other changes coming to Philadelphia civil courts.

Fee Awards: Have Judges Separated Themselves From Practice Realities?

By Anthony S. Volpe
Special to the Legal

There have been a number of recent decisions in which judges have granted fee awards, but have been critical of the number of attorneys that contributed to the matter under consideration or the hours expended in the representation.

I wholly agree that judges need to stand as gatekeepers and every victory should not immediately translate into a fee award. I also wholly agree that every fee awards should not immediately translate into a granting of the entire petition. My concern is with the amount and type of criticism some judges level on winning counsel.

Today's litigation, especially in high stakes, bet-the-ranch cases, has produced a landscape where the attorneys are always second-guessed and, more frequently, a loss or a lower-than-expected outcome results in a malpractice suit. This has the double irony that boards of director that require corporate legal officials to the use "name counsel," so they have the cover of hiring the "best," get counsel that is compelled to staff the case with multiple attorneys to provide input on every possible contingency in an effort to avoid a disfavored result. This is followed by a result that may or may not meet the client's expectation and a judicial fee petition decision that takes counsel to task for too much effort.

As I see it, today's practice has more twist and turns than ever, and the potential for today's client to be tomorrow's plaintiff has never been greater. Everyone wants to control cost, but a general counsel who makes the decision to pick the best counsel option and makes the hard calls to pursue only the claims or defenses that are likely winners is at risk of second-guessing and Monday morning quarterbacking.

I know that most judges are hard working and overworked; however, they still need to take the time to consider the pressures on litigation counsel. Every client wants the brightest lawyers on the matter, and in today's world, they come with a price.

All of this reminds me of something my father would say. As an Italian immigrant, he often would comment that he could, when he first came to this country, buy bread for 10 cents a loaf. To this, I would remind him that he only made a dollar a day at the time. This is applicable to the judges' analysis, the curve moved to the right and that need to be recognized. Hourly rates and the effort needed to litigate matters today have changed. The greater analysis needs to focus on whether the award is justified and, given the decision to award fees, more deference may be due counsel.

Anthony S. Volpe is a founding partner of Volpe & Koenig. He can be reached at TVolpe@volpe-koenig.com.

When Common Sense Isn't so Common

By Melissa M. Gomez
Special to the Legal

I hear it in real trials. I hear it in mock trials. Just about every one. What is it? It is the following statement: "Ladies and gentlemen, you just have to use your common sense to find (insert what you want the jurors to find here)."

But the fact of the matter is that common sense isn't always so common, and what you may consider common sense may not relate to the sensibilities of a particular juror.

While this can be true in any kind of case, I find it particularly true in complex commercial cases in which the issues make it difficult for jurors to make any sense of the case, let alone consider any of it common. I remember in particular some very complex contract litigation chock full of accounting principles and financial complexities. In mock trial deliberations, knee-deep in the information, jurors laughingly referred to a "common sense" comment made by one of the attorneys. While it may have been common to the attorney, it certainly wasn't to them.

The words you use and the insinuations you project through those words can have a profound impact on the way jurors view you and your case. Be careful about making such assumptions regarding what you feel someone should consider obvious or common sense.

The danger is this: If you are telling a juror to use his common sense to agree with you, and he sees things differently, you not only have someone who may not see things as you do, but you just alienated that person. The end result is that you may have created a stronger adversary than otherwise. You have insulted his common sense for disagreeing with your position, after all.

It all makes common sense, doesn't it?

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. If you have questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.

Reporter's Notebook: More on Koken & Auto Accident Law

By Amaris Elliott-Engel 
Of the Legal Staff

I wrote a story earlier this month about how motor vehicle practice has changed after the state Supreme Court overruled in 2006 an insurance regulation mandating the arbitration of all uninsured and underinsured motorist disputes before three lawyers chosen by plaintiff and defense counsel.

After talking with lawyers from both the defense and plaintiff bars, I learned that there are a couple major phenomena in post-Insurance Federation of Pennsylvania v. Koken practice: one, arbitration -- albeit just with a solo arbitrator -- remains a popular way of resolving claims made by the insured against their insurers for coverage under uninsured and underinsured (UM/UIM) motor vehicle polices; and, two, and this area of law will remain unsettled until appellate courts weigh in or procedural rules are drafted. (See my previous story here.)

In a talk Tuesday given to the Philadelphia Association for Defense Counsel, Louis E. Bricklin, a defense attorney with Bennett Bricklin & Saltzburg in Philadelphia, provided more insight on the unsettled nature of this area of law.

Bricklin said he has not seen specific statistics on how often UM/UIM breach of contract claims are brought with bad faith claims, but his firm is seeing cases with the combined causes of action about 50 percent of the time. The cost to file another count, when many cases are initiated electronically now, is just "throw[ing] in a couple more electrons," Bricklin said.

When defense attorneys are considering the removal of cases to federal court, they should be aware that the right of removal expires one year after the suit is initiated, Bricklin said. Even if opposing counsel agrees to cap the amount in controversy, the cap won't be binding during an appeal from arbitration, he said.

On the other hand, defense attorneys must be aware -- if they remove cases to federal court when they are not permitted to do so -- that they are creating the grounds for plaintiffs attorneys to file a claim for bad faith, Bricklin said.

In the wake of Ashcroft v. Iqbal, in which the U.S. Supreme Court held that a party can only survive a motion to dismiss because of sufficient factual material that supports their claim, the 3rd U.S. Circuit Court of Appeals has "zealously acted to close the courthouse door," Bricklin said.

"You need to plead facts," Bricklin said. "From the plaintiff's point of view, you have to show what information was submitted … and what the insurance company did in response."

The Superior Court in O'Hara v. First Liberty Corp. has ruled that insurers can include venue selection clauses in their insurance contracts, Bricklin said.

Venue selection clausues are important because venue will hold for insurers as long as they do business in the venue, which includes places like Philadelphia, Lackawanna and Luzerne counties that are less popular with defense attorneys, Bricklin said.

There is no question that joinder of the claims of the negligence lawsuit against the tortfeasor who caused the accident, a UM/UIM claim against a plaintiff's own insurance company, and a bad-faith claim against the UM/UIM carrier are proper because the actions have common questions of fact, Bricklin said.

But Bricklin said that it is not clear if the claims should stay joined for trial.

Some states say that while it may be prejudicial to a tortfeasor to have a jury informed about the existence of insurance because the insurer is also a named defendant, the prejudice can be cured with instruction and all modern juries know of the existence of insurance, Bricklin said.

New Jersey and other states, however, cloak the fact that there is UM/UIM coverage and have the trial judge mold the verdict in accordance with the liability coverage and the UM/UIM coverage, Bricklin said.

The latter course raises the issue of whether the UM/UIM carrier should also participate in the defense and the ethics of a UM/UIM carrier's counsel standing before the jury and indicating that they are representing the tortfeasor, even though they are representing the UM/UIM carrier whose existence is cloaked from the jury, Bricklin said.

The other problem of consolidating the claims is that plaintiffs lawyers might be able to do discovery regarding insurance adjusters' evaluations of cases, Bricklin said. There has not yet been an instance of an adjuster, sitting in the witness box, being asked what his or her view of the case is, he said.

But that is another issue that has to be tested in the post-Koken era, Bricklin said.

  Amaris Elliott-Engel is a reporter for The Legal. She can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter: @AmarisTLI.