Category: Defenses

Defenses / Risk Management

Forum Shopping? Choose Philadelphia

America’s birthplace, home of the Liberty Bell, cheesesteaks and Rocky, the City of Brotherly Love is a destination for history, arts, culture…and personal injury cases. Once again, Philadelphia has been named America’s number one judicial hellhole in the annual ranking by the American Tort Reform Foundation for 2019. This is based on Philadelphia’s outrageous verdicts, amount spent on lawsuit advertisements, percent of out of state plaintiffs, and courts loosely applying venue rules.

Some highlights from 2019:

  • A major pharmaceutical company hit with an $8
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Defenses

New AOM Notices in New Jersey

Over the years, we’ve shared posts regarding the nuances of Affidavit of Merit (AOM) requirements in professional malpractice actions. Of course, many states have enacted some version of an AOM requirement and we’ve discussed the significance and potential advantages from a defense perspective when a plaintiff fails to comply. By strict rule of law, the failure to timely submit an AOM should signal dismissal, but does it in practice? Does it seem like courts are a bit too lenient in permitting a malpractice claim to …

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Defenses / Long Term Care

AOMs and Nursing Home Litigation in New York

Many jurisdictions require some version of an affidavit of merit (AOM) in order to proceed with a malpractice claim. (Here’s a helpful 50-state survey of AOM requirements LINK). In New York, CPLR Section 3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney has reviewed the facts of the case, and has consulted with at least one physician, and that there is a reasonable basis for the commencement of the action. This …

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Defenses / Privileges

Pennsylvania Modifies Work-Product Rule

In a recent decision, the Pennsylvania Superior Court clarified the application of the attorney work-product doctrine in the context of an e-mail exchange to a third-party consultant. The decision addresses the question of whether the work-product doctrine in Pennsylvania applies to otherwise confidential communications sent to a public relations company.

In Bousamra v. Excela Health, a hospital retained an outside consultant to manage the results of peer reviewed studies regarding arterial blockages and inappropriately implanted stents.  The hospital was concerned with publicly disclosing the …

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Defenses / Legal Malpractice / Malpractice Defenses

Timed Out: Continuous Rep Doctrine Denied in Maine

You generally know the drill: a plaintiff has limited time to file suit. Generally, the statutory period begins when the plaintiff knows or reasonably should know that she has been harmed and that the defendant caused that harm. You also generally know that statute of limitations defenses are not nearly that simple. There are variables including the discovery rule and the gist of the action doctrine which may impact the argument. The continuous representation doctrine is another wrinkle that could affect whether a malpractice claim …

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Defenses

Third Circuit Reaffirms Heightened Securities Fraud Standard

One of the most difficult aspects of defending investor misrepresentation claims is that they naturally occur after a financial calamity. In retrospect, there is almost always an argument that a statement here, or omission there, was “misleading” in light of the company’s ultimate fate. It is for this very reason that common law imposes a heightened standard for investors attempting to bring such a claim for what is essentially statutory fraud. In a recent decision from the Third Circuit, the Court reiterated this heightened pleading …

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Defenses

NJ Considering Bill to Shorten Malpractice Statute of Limitations

A measure that would shorten the statute of limitations for New Jersey malpractice claims against certain licensed professionals, including attorneys, from six years to two years, passed the Assembly Judiciary Committee on March 18 in Trenton. Although a small step, this is encouraging for many New Jersey professionals, and the attorneys who defend them.

Under A-4880, malpractice suits against licensed accountants, architects, engineers and land surveyors would also have to be filed within two years, and attorney fees could not be awarded in any action …

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Defenses / Risk Management

Pennsylvania Opens Door to Lawsuits Against Foreign Companies

The Due Process Clause of the Fourteenth Amendment to the US Constitution limits the authority of courts to exercise jurisdiction over non-resident defendants.  Before a court can exercise personal jurisdiction over a party, the Constitution requires that the party have certain “minimum contacts” in the state where the court sits.  Jurisdiction may be satisfied  when the suit arises from the foreign person’s activities in the forum state.  Further, with respect to foreign companies, jurisdiction may be satisfied regardless of the nature of the lawsuit if …

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Accountants / Defenses / Legal Malpractice

How Long Is Too Long to Wait for Malpractice Actions?

One of the most common problems facing a would-be plaintiff considering a malpractice case is when to file suit. Similarly, those that defend professionals must consider whether to move to stay proceedings if applicable. Especially with accountants and attorneys, causation and damages are difficult to calculate until the underlying matter has concluded. This means that the notoriously long legal process can often come into conflict with the statute of limitations, or create evidentiary problems. The decision is whether to wait many years for the underlying …

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Defenses

Electronic Notifications for Affidavits of Merit?

The New Jersey Supreme Court recently declined to dismiss a medical malpractice case for an attorney’s failure to file a timely affidavit of merit (AOM). The court based its decision in large part on the trial court’s failure to schedule a preliminary conference (called a “Ferreira” conference in NJ) to discuss the sufficiency of the AOM. The court further stated that it would order improvements to the courts’ automated case management system to ensure the electronic notification of both the AOM filing obligation and the …

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