C&W Journal

May 13, 2015

2015 Legislative Session Overview

The 2015 West Virginia Legislative Session recently concluded. Multiple bills were passed during the session that will significantly impact the future of West Virginia’s legal system. These newly enacted laws will bring about much needed change that...

May 13, 2015

Significant Pennsylvania Supreme Court Decision Applied Retroactively

In November 2014, the Pennsylvania Supreme Court issued the much anticipated opinion of Tincher v. Omega Flex . While the state of product liability law was significantly altered in the Commonwealth, the Tincher opinion left open the question...

May 13, 2015

Trivial Has to Be Trivial

A daylight accident involving an open and obvious “trivial” defect is the best that one could hope for, short of a freshly poured, pristine sidewalk, when defending the typical sidewalk claim business owners routinely face. That said, the defense of ...

May 13, 2015

Under What Circumstances Can Unreasonable Contest Attorney’s Fees...

The Commonwealth Court of Pennsylvania recently decided a fascinating case, involving what was described as a “frivolous” appeal filed by the claimant. The most stunning element of the decision was the fact that even though attorney’s fees were not...

May 13, 2015

Superior Court Signals Support for Expert Opinion Testimony on...

In a May 12, 2014, Memorandum Opinion, the Superior Court affirmed a multi-million dollar verdict in a trucking case where more than one million dollars in punitive damages was awarded. In so doing, the court rejected one of the defendants’ central...

May 13, 2015

Science Matters: Expert Admissibility Changing the Course of...

Judge Nelson C. Johnson, a New Jersey State Court judge, recently barred testimony of the plaintiffs’ two general causation experts, Dr. Arthur Kornbluth and Dr. David Madigan, in the state’s multidistrict Accutane litigation.(See http://www...

March 26, 2015

Recent Case Allows Suspension of Benefits, Despite Ongoing Wage Loss

Workers’ Compensation benefits can be suspended when there is a wage loss due to economic conditions. Recently, the Commonwealth Court affirmed an employer’s petition to suspend wage loss benefits even though the claimant had returned to her pre...

March 26, 2015

Restructuring Pennsylvania’s Powers Of Attorney

 In response to the Pennsylvania Supreme Court’s decision in Vine v. Commonwealth of Pennsylvania, State Employees’ Retirement Board, 607 Pa. 648; 9 A.3d 1150 (2010), the Pennsylvania legislature made significant amendments to Pennsylvania’s Powers...

March 26, 2015

Driveway Immunity Exceptions

 A little known section of Pennsylvania law, the Driveway Immunity Provision, 35 P.S §7210.502 (b)(4)(i) of the Construction Code Act, and 53 P.S.§10508(6) of the Municipalities Planning Code, may allow a municipality to avoid damages in an accident...

January 30, 2015

New Form of Indemnity Identified in Non-Precedential Decision

The Superior Court, in a non-precedential opinion, recently acknowledged the doctrine of intermediate form indemnity. In Bracken v. Burchick , (October 10, 2014), a general contractor entered into a subcontract for masonry work on a construction...

January 30, 2015

Break Time Injuries Still Compensable

Recently the Pennsylvania Workers’ Compensation Appeal Board upheld a case where a claimant who was on his regular shift took a cigarette break while on the premises of the employer and was bitten by a co-worker’s dog; the injury was found to be...

January 30, 2015

State of Product Liability Law Significantly Altered in Pennsylvania

This past November, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex . The court overruled Azzarello v. Black Brothers , yet declined to replace it with the mandates of the Restatement (Third) of Torts...

January 30, 2015

Pennsylvania Supreme Court to Decide Use of Informed Consent...

The issue of whether the Superior Court erred in applying a blanket prohibition of evidence of a plaintiff’sconsent to surgeries and knowledge of the risks associated with the plaintiff’s surgeries in a medical malpractice case will be decided by the...

January 30, 2015

Work Effort and Personal Risk Factors: Making Sense of...

 In Renner v. AT&T (A-71-11) (068744), the petitioner was a telecommuting employee permitted to work from her home three (3) days a week. She worked for AT&T for 25 years. On September 24, 2007, the petitioner was working on a project through the...

January 30, 2015

FDA’s Proposed Labeling Changes: Uncertainty for Claims against...

 In November 13, 2013, the Food and Drug Administration (FDA) released a proposed rule on labeling changes for approved medicines to establish “parity” between Abbreviated New Drug Application (ANDA) and New Drug Application (NDA) sponsors by...

January 30, 2015

Workers’ Compensation “Exclusivity” Provision May Not Be So...

 Under the Pennsylvania Workers’ Compensation Act, an employer’s liability to an employee, legal representative, husband or wife, parents, dependents, next of kin, or anyone otherwise entitled to damages for injuries suffered by an employee in the...

January 30, 2015

Commonwealth Court Ruling Highlights Exception to “Coming and Going...

For those who deal in workers’ compensation matters, it is generally thought that a person who is injured while traveling to or from work is not entitled to workers’ compensation benefits. Indeed, this is normally the case. A recent Pennsylvania...

November 21, 2014

What Does MMI Really Mean in the Context of Impairment Rating...

Simply by being in the workers’ compensation arena allows most everyone involved to have a general understanding of maximum medical improvement (MMI). In Pennsylvania, MMI does not hold as much weight as it does in other states because Pennsylvania is...

November 21, 2014

Can a Defendant in a Professional Liability Case be Asked for His...

For those of us who practice in the area of professional liability defense, there remains the question of whether to designate a client as an “expert.” This is true whether the defendant is an attorney, doctor, accountant, or any other type of...

November 21, 2014

What to Do When an IRE and Review Petition Cross Paths

In Pinder v. WCAB (Lucent Technologies), (No. 23 C.D. 2014,) submitted July 18, 2014, the parties were litigating Termination and Review Petitions when the employer requested that the claimant attend an IRE (impairment rating evaluation). The...

November 21, 2014

No Doctor's Note Necessary- Returning To Work Without a...

In West Virginia, when dealing with an employee who has been injured on the job, it is considered a discriminatory employment practice for an employer to not reinstate the injured employee back to the employee’s pre-injury position when the employee...

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