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After Quiet First Half, 4 Pa. High Court Cases to Watch

July 16, 2014

Law360
By Dan Packel

Although 2014 thus far has seen few blockbuster rulings from Pennsylvania’s Supreme Court – in part stemming from the residual effect of several recently resolved high-profile matters – the year’s second half could yield three key decisions affecting torts in the state, along with the resolution of a $187 million class action suit against Wal-Mart Stores Inc.

Apart from a finding that pharmaceutical companies can be held liable for negligence in the design and marketing of drugs – a substantial new tool for plaintiffs in a state known as a hotbed for mass tort litigation – the court has delivered few bombshells on the civil side.

On some closely watched cases, like the Wal-Mart matter, it has been more than a year since the court heard oral arguments. But appellate experts have attributed the slow pace in part to hard work in the previous two years on battles over matters including hydraulic fracturing, voter ID, judicial retirement and legislative reapportionment.

“With the magnitude of some of the cases here, they’re really having to write on a blank slate,” said John Hare, the chair of the appellate practice group at Marshall Dennehey Warner Coleman & Goggin PC.

Additionally, the seven-member court has been at full strength for little over a year, as Justice Correale Stevens did not replace convicted former Justice Joan Orie Melvin until July 2013.

“Every time that you have a new justice coming onto court, it takes time for that justice to get up to speed and adjust to the workload,” said Karl Myers, of counsel at Stradley Ronon Stevens & Young LLP.

Myers, a former Supreme Court clerk, also suggested that the court receives unfair criticism for its slow pace, noting that its docket includes the time- and resource-intensive process of reviewing capital appeals. It also has to weigh in on rules, in addition to the higher-profile work of writing opinions and determining what cases to hear.

“That kind of opinion comes from a lack of understanding of the complete scale of the work the court is expected to do,” he said.

The court’s current task load undoubtedly includes resolving these cases:

Terrence Tincher et al. v. Omega Flex Inc.

In a case argued in October, the court is considering whether it should adopt a more recent body of tort law that attorneys say could result in a massive shift in the burden plaintiffs face when bringing product liability lawsuits.

Omega Flex Inc. is pressing the court to adopt the American Law Institute’s Third Restatement of Torts, over the Second Restatement of Torts, after its steel tubing was found to have contributed to a house fire. A broad ruling could determine which body of law governs product liability actions in Pennsylvania.

“This is a foundational question whose answer will broadly impact product liability litigation – from case selection to the evidence needed to prove liability, to the exposure of defendants,” Chip Becker, a partner with plaintiffs’ firm Kline & Specter PC, told Law360 in December.

He added Wednesday that since the court had “punted” on the matter in the past, all eyes were now focused on how – and if – it would resolve the dispute over the differing standards this time around.

The Third Restatement introduces negligence concepts into product liability claims.

Under the Second Restatement, which the plaintiffs say Pennsylvania has used for nearly 50 years, plaintiffs can recover from manufacturers on the sole basis that a product was defective when used as intended. The Third Restatement, however, accounts for other factors, such as whether a manufacturer acted reasonably in designing a product and whether it could have foreseen the product’s risks.

Hare, the Marshall Dennehey appellate chair, emphasized that attorneys on both sides of the bar were closely watching the case, and he expected the high likelihood of a divided court was contributing to the delayed decision.

But Becker was less certain.

“You can’t read into silence,” he said.

The Tinchers are represented Mark Utke of Cozen O’Connor.

Omega Flex is represented Christopher Landau of Kirkland & Ellis LLP, and William Conroy and Katherine Wang of Campbell Campbell Edwards & Conroy PC.

The case is Terrence Tincher et al. v. Omega Flex Inc., case number 17 MAP 2013, in the Supreme Court of the State of Pennsylvania.

Alexander Bratic et al. v. Charles Rubendall et al.

Product liability litigators are also tuned in to a case that could upend Philadelphia’s reputation as a plaintiff-friendly venue. The court is mulling how state judges should deal with forum non conveniens motions, a tactic defense attorneys use to transfer cases to different venues arguing the plaintiff’s choice of forum imposes an unfair burden.

The law firm Keefer Wood Allen & Rahal LLP is seeking to move a wrongful use of civil proceedings suit against it from Philadelphia County to Dauphin County, and observers believe the court’s decision will have broader implications on where in the state cases are tried.

“It’s very likely that the Supreme Court will announce rules here that apply to a wide range of cases in the future,” Pennsylvania appellate specialist Howard Bashman told Law360 when the court heard the case in November.

Hare noted that since a seminal 1997 Supreme Court case governing the transfers, the state’s lower courts have ruled in different ways. The court’s decision is expected to clarify the standards parties need to meet when deciding on venue – routinely a hot-button issue in civil litigation.

The appellants are represented Jeffrey Lerman and and Glenn Rosenblum of Montgomery McCracken Walker & Rhoads LLP, and Stephen Kurens of Sirlin Lesser & Benson PC.

The appellees are represented Joseph Podraza and Richard Sprague of Sprague & Sprague, and Lloyd Parry of Davis Parry & Tyler PC.

The case is Alexander Bratic et al. v. Charles Rubendall et al., case No. 21 EAP 2013, in the Supreme Court of Pennsylvania.

Zauflik v. Pennsbury School District

The court is also considering the degree to which municipalities in the state should be shielded from tort liability, as it mulls the legitimacy of a law capping damages at $500,000.

A girl who suffered catastrophic injuries in a 2007 school bus accident is trying to salvage the full value of a $14 million jury award in her favor, arguing that the state Political Subdivision Tort Claims Act violates her constitutional rights.

Attorneys for Ashley Zauflik said in oral arguments in May that the law ran afoul of her right to full compensation for her injuries, as enshrined in the Pennsylvania Constitution’s open courts provision guaranteeing legal remedy for all individuals.

The district meanwhile argued that the justices were bound previous state Supreme Court decisions upholding the legislature’s authority to place conditions on sovereign liability.

“While the court the past several times has approved the Tort Claims Act, the plaintiffs had some really creative arguments,” Hare said. “You could possibly see a split vote here.”

Zauflik is represented Thomas Kline and Chip Becker of Kline & Specter PC.

Pennsbury is represented Stephen Cozen of Cozen O’Connor.

The case is Zauflik v. Pennsbury School District, case number 1 MAP 2014, in the Pennsylvania Supreme Court.

Braun v. Wal-Mart Stores Inc. and Hummell v. Wal-Mart Stores Inc.

Finally, in two cases heard in May 2013, Wal-Mart is seeking to overturn a $187 million award granted to a class of workers who claim they were denied paid breaks. The retail titan contends it was denied its due process rights during the jury trial.

Wal-Mart says it was subjected to an unfair “trial formula,” a method of trying class action disputes that was expressly barred the U.S. Supreme Court’s 2011 decision in Dukes v. Wal-Mart.

The award stems from two suits lodged two former Wal-Mart employees, Michelle Braun and Dolores Hummel, who claimed the company owed them $3 million for 180,000 off-the-clock hours from 1998 onward. Lawyers in the case claim that Wal-Mart made workers skip more than 33 million breaks and 2 million meal periods from 1998 to 2001.

Attorneys for Wal-Mart argue that a lower court erred when it ruled that the plaintiffs – as a collective – did not have to demonstrate the same proof that the court would have required in an individual case.

The plaintiffs, on the other hand, say they built their case on Wal-Mart’s own records, which differentiated it from Dukes.

“There are authorities going in different directions around the country on this issue,” Hare said.

The plaintiffs are represented Michael Donovan of Donovan Axler LLC and Judith Spanier of Abbey Spanier Rodd & Abrams LLP.

Wal-Mart is represented Lamb McErlane PC, Hangley Aronchick Segal & Pudlin PC and Gibson Dunn.

The cases are Michelle Braun v. Wal-Mart Stores Inc., case number 32 EAP 2012; and Dolores Hummel v. Wal-Mart Stores Inc., case number 33 EAP 2012; both in the Pennsylvania Supreme Court.

–Additional reporting Matt Fair. Editing Kat Laskowski and Mark Lebetkin.

Copyright Law360. This article has been reprinted here with permission.