Harry Stump, Esq.

Blog

  • TRAUMATIC BRAIN INJURIES (TBI)

     

    There are many types of TBI.

    A skull fracture is a fracture of the hard, bony covering of the head.  A closed skull fracture is occurs when there is a break in the bony covering of the skull without a break in the skin.  An open skull fracture occurs when there is also a break in the skin or scalp.

    A contusion occurs when the force of an impact forces the brain to hit the skull.  A coup contusion occurs at the point of impact with the skull.  A contrecoup contusion occurs opposite the point of impact with the skull.

    A concussion is an injury deep in the brain that can cause problems with consciousness.

    A hematoma occurs when a blood vessel is broken after an impact.  This can cause a blood clot of the brain.

    A penetrating head injury occurs when some outside force penetrates an object into the brain.

    An anoxic brain injury results when the brain is deprived of oxygen.

    A subarachnoid hemorrhage occurs when a clot forms between the brain and under the arachnoid membrane space.

    A subdural hemorrhage occurs when a clot forms between the dura and the brainl

    Other hemorrhages and hematomas are location specific, such as intraventricular, intracerebral and epidural blood clots.

    A diffuse axonal injury is damage to the white matter (axions) of the brain.

    Second impact syndrome occurs when a person suffers a second TBI before the first one is fully healed.

    Each of these brain injuries can be very serious and deserve immediate medical attention in a well-equipped hospital setting.

  • DOES ‘SPRING FORWARD’ INCREASE CAR ACCIDENTS?

    Will car accidents increase in the week beginning March 8, 2020?
    According to a recent University of Colorado Boulder study published in the Current Biology journal, the change to Daylight Savings Time in the spring results in a 6% to 8% increase in fatal car accidents during the following week. The relevant factors are the decrease in sleep, circadian misalignment and driving to work in the darkness are important factors.

    This effect is more pronounced in the western part of the time zones.

    Several states are considering abandoning the switch between Daylight Savings Time and Standard Time.

  • BRAIN INJURIES

    March is National Brain Injury Awareness Month.  The Brain Injury Association of America has sponsored this campaign for over 30 years.  The Association estimates that 153 persons die in the United States every day from this injury and that more than 280,000 persons are hospitalized per year.

    There are different categories of brain injury.  Some occur at birth, either by genetics, congenital or birth injury.  Others are acquired, or occur after birth.  An acquired brain injury can be either traumatic or non-traumatic.

    There are many types of non-traumatic brain injuries, some of which are caused by:  stroke, lack of oxygen, drug overdose or tumors.

    Traumatic brain injuries (TBI) can be classified as closed (non-penetrating) or open (penetrating). Traumatic brain injuries can occur from a motor vehicle accident, fall, domestic violence, sports injury or criminal activity.

  • CLAIMS AGAINST BUSINESS AND PROPERTY OWNERS FOR VIOLENT CRIME

    If you, a relative or friend were injured by a criminal assault or other crime in a store, a shopping mall, a parking lot, a bar or tavern, an apartment building or other such commercial establishment, you should consider consulting an attorney for a possible claim against the property owner.

    Actual or constructive notice of past criminal activity on or near the premises is an important factor in these cases.

    • A grocery store customer was stabbed and robbed in their adjacent parking lot where the store had actual or constructive notice of prior criminal activity in and around the store including car thefts, purse snatching and muggings.
    • The owner of a firearm may be liable for allowing the firearm to be possessed by a child, or a person prohibited by law to possess a firearm or for failing to use a safety lock.
    • A landlord, who does not provide adequate security, locks on doors or windows resulting in criminal assaults.
    • A shopping mall without security patrols or surveillance cameras resulting in serious injuries.
    • Schools, churches, childcare centers, organizations that do not check the background of their employees resulting in sexual assaults.

    The National Crime Victim Bar Association estimates that 24 million Americans are victimized by crime each year.  Many of these claims involve sexual assault, inadequate security, broken locks, negligent hiring, violence in bars and many other criminal acts.

    These can be very serious injuries and may result in significant cash settlements.  You should call an attorney for an evaluation of every claim.

  • PENNSYLVANIA VICTIMS COMPENSATION ASSISTANCE PROGRAM

    Pennsylvania law provides that persons who are the innocent victim of a crime may be eligible for compensation including: medical expenses, counseling expenses, loss of earnings, loss of support, relocation expenses, funeral expenses, crime-scene cleanup, transportation expenses, childcare, home health care expenses, and stolen case.  Pain and suffering and most stolen or damaged property is not covered.  The overall maximum award shall not exceed $35,000 except in limited cases.

    The crime must have occurred in Pennsylvania.  The crime must be reported to the proper authorities or a Protection From Abuse order filed within 3 days of the crime, with limited exceptions.  You must cooperate with law enforcement authorities, the courts and the Victims Compensation Assistance Program.  You must have paid or owe at least $100 arising from the crime unless you are age 60 or older.  The claim must be filed within 2 years of discovery of the crime with exceptions if the victim is a child.

    Further information and application forms can be received from Help For Victims Of Crime in Pennsylvania at (800) 233-2339; online at www.pacrimevictims.com.

    Pittsburgh has a local office located at Centers for Victims, 3433 East Carson Street, Suite #300, Pittsburgh, PA  15203 (412) 482-3240.  They provide comprehensive support and services for victims of Domestic Abuse, Sexual Assault and all other criminal victims.  Their 24-Hour Crisis Hotline number is 1-866-644-2882.

  • PRODUCTION OF SECURITY ACCIDENT SCENE VIDEO WITHOUT DELAY

    Attached is a Memorandum of Law that I recently submitted in a slip and fall case in an attempt to secure the security video evidence of the fall before my client’s deposition.  The defense argued that it should not be produced prior to the plaintiff’s deposition because of its impeachment value.  The court focused on the word “solely” in Rule 26 and ordered the production before the plaintiff’s deposition.

     

    UNITED STATES DISTRICT COURT

    FOR THE WESTERN DISTRICT OF PENNSYLVANIA

     

    JAMIE E. MASSUNG,

    Plaintiff,

    vs.

    DOLGENCORP, LLC t/d/b/a DOLLAR GENERAL and DOLLAR GENERAL,

    Defendants.

    CASE NO. 2:19-CV-01081-PLD

    PLAINTIFF’S MEMORANDUM IN SUPPORT OF PRODUCTION OF SECURITY ACCIDENT SCENE VIDEO WITHOUT DELAY

    Plaintiff slipped and fell in the direct view of a Dollar General Security video camera.  Plaintiff seeks the production of the entirety of that day’s video of the accident scene prior to and after the slip and fall of the plaintiff.  Defendant has stated that it will defer the production of this video until after the deposition of plaintiff.  Plaintiff needs the security video to aid in the establishment of liability and to prepare for a scheduled mediation conference.  Delay of production of the video will result in less than a two week window between the December 4, 2019 deposition of plaintiff and the scheduled mediation on December 18, 2019.  Plaintiff contends that there is a difference between the instant security video and a post-accident surveillance video.

    Rule 26. Duty to Disclose; General Provisions Governing Discovery provides as follows:

    (a) Required Disclosures.

    (1) Initial Disclosure.

    (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

    (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

    The Third Circuit has not reviewed this issue.  Viola v. Costco Wholesale Corporation, No. 18-cv-4661 (E.D. Pa. 2019) ordered the production of the security

    video: “the entirety of the video footage Defendants have in their possession which allegedly records the events on the day plaintiff…fell inside Defendants’ store within seven (7) days of the date of this Order.  Only thereafter may Plaintiffs’ depositions be taken.”  (Order attached hereto.)

    Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) held that it was error for the defendant not to disclose a surveillance video pursuant to Rule 26.

    In Williams v. D.P. Fence-North, LLC, No. S=1344-10 (Schuykill County 2011) illustrates that a Pennsylvania Common Pleas court held that a security video tape was not a surveillance tape made in anticipation of litigation and acts as an eyewitness to the event which must be produced before any depositions take place. (Opinion attached hereto.)

    The two Circuit courts that have ruled on this issue focus on the meaning of the word “solely.”   In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the court held that a post-accident surveillance tape was discoverable because it contained both substantive evidence and impeachment evidence.  The court defined substantive evidence as that offered to establish the truth of a matter as opposed to impeachment evidence designed to discredit a witness.  Klonoski v. Mahlab, 156 F.3d 255 (1st Cir. 1998), cited Chiasson in characterizing letters kept for impeachment as both substantive and impeachment evidence, therefore discoverable under Rule 26.

    In Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018), that court reviewed the issue with respect to a security video taken at the scene of an arrest.  That court noted that Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) had ruled that even in a secret video taken for post-accident injury evaluation that the term “solely” in Rule 26 was limited to evidence that has no potential utility other than impeachment; if the video had substantive value, it must be produced.

    The relevant excerpt from Mulero:

    (2) Exclusion of the Surveillance Video:

    Next, Defendant Sheposh argues he is owed a new trial because I erroneously prohibited admission of a surveillance video.  Federal Rule of Civil Procedure 26 requires the disclosure of certain information at the start of discovery. Specifically, this Rule requires parties to disclose, without request, “a copy—or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” FED. R. CIV. P. 26(a)(1)(A)(ii). This disclosure must occur within fourteen (14) days following the parties case management conference. FED. R. CIV. P. 26(a)(1)(C). The Rules explicitly provide for sanctions if the mandates of Rule 26 are ignored. FED. R. CIV. P. 37(c)(1). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial, Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) unless the failure was substantially justified or is harmless.” Id.  The burden of establishing that a failure to disclose was either substantially justified or harmless rests on the party facing a request for exclusion. See R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010); Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D. Pa 2002) (Vanaskie, J.).

    Notably, information used “solely for impeachment need not be disclosed pursuant to Rule 26(a)(1)(A), (C).[10] But, this exception to the broad rule favoring disclosure is quite limited. In fact, a number of courts have held that the impeachment exception is limited to evidence that has no potential utility other than impeachment. See, e.g., Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (5th Cir. 2015) (explaining that the term “solely” modifying the word “impeachment” is to be interpreted strictly); Chiasson, 988 F.2d at 517-18 (holding that a video tape, “regardless of its impeachment value,” must be disclosed because it is a the very least partially substantive); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (same).

    Defendants were required by Rule 26(a) to produce the surveillance video within 14 days of the case management conference. The parties participated in a Rule 26(f) case management conference on April 14, 2016. (Docs. 13, 17.) This means that disclosures required by Rule 26(a) were to be provided to opposing counsel no later than April 28, 2016. On August 18, 2017-the day of the final pre-trial conference-Defendants provided Plaintiff with a surveillance video that purported to document the events giving rise to the instant dispute. I decided, like the majority of courts confronted with this issue, that the video was both substantive and impeaching in nature.[11] Thus, the video should have been produced by the end of April 2016. Because Defendant failed to comply with the mandates of Rule 26(a),

    Defendant was sanctioned in accord with Rule 37(c)(1): I prohibited the use of the video at trial for substantive and impeachment purposes.

    Defendant relies upon Snead v. Am. Export-Isbrandsen Line, 59 F.R.D. 148 (E.D Pa. 1973), Machi v. Metro. Life. Ins. Co., No. 07-1754, 2008 WL 2412947, at *1-2 (W.D. Pa. June 10, 2008, and Delacruz v. Walmart Store 5103, Walmart Associates, Inc., No. 10-5932 (E.D. Pa) cases.

    It is important to note the distinction between a security video recording of an accident scene and a surreptitious/secret surveillance video recording of a plaintiff performing physical acts inconsistent with their claims of injury.  The accident scene security video has predominantly substantive value as evidence of the underlying facts surrounding this accident.  The secret surveillance video of inconsistent claimed disabilities, restrictions and limitations are limited in use by the defendant solely for impeachment.

    Both Snead and Machi, supra. involved the secret types of videos created solely for impeachment purposes, or surveillance videos,  and have a plausible argument that they were created solely for the impeachment purpose of disputing a claim of disability and did not contain substantive evidence.  Delacruz, supra., involved an accident scene security video as does the instant case.  That court cited Snead and Machi, without discussing the security video v. surveillance video difference of  the two videos or why it did not feel compelled to follow Rule 26 (a) (1) (A) (ii).  As noted above, the same Eastern District court reached an opposite and more recent decision, compelling production of the security video in Viola v. Costco Wholesale Corporation.

    As noted above, Rule 26 compels production of this video as it does statements of eye witnesses and other evidence that plaintiff could use for trial.  The primary value of this video is to ascertain substantive evidence exists to prove facts relevant to liability of defendant.  The video is relevant to proof of facts surrounding the incident at issue in this case.  Denial of production will only serve to delay and limit plaintiff’s preparation of this case and impair the value of the scheduled mediation.

     

     

  • STAIR-RELATED INJURIES

    Stairs can be dangerous especially for the very young and senior citizens.  The consequences of a fall from the top of the steps to a story lower can be devastating.  Even a fall at the bottom of the steps can cause a serious injury.

    According to the April, 2018 American Journal of Emergency Medicine, over 1 million patients are treated in United States Emergency Rooms for stair-related falls each year.  According to the National Safety Council’s Injury Facts, falls are the third leading cause of preventable deaths and the first leading cause of preventable nonfatal injuries in the United States.

    The noted authority, John Templer, in The Staircase, Studies of Hazards, Falls and Safer Design, identifies falls on stairs, as they are designed and built, as some of the most dangerous artifacts in our environment. On page 15 of the book, he identifies Stair Maintenance (ice, snow, water, other substances on treats; articles left on stairs; broken tread; loose or torn carpet or covering; tread badly eroded; light broken or not switched on; loose nosing strip; and absent or broken handrail) and Stair Design and Construction (a single step; narrow treads; dimensional irregularity; inadequate illumination; risers that are too high or low; a step or stair in an unexpected place; no handrails; nosing strip that projects above the treat; slippery tread material; distracting views; and confusing patterns on the tread) as some of the most important factors that cause stair falls.

    One case involved a temporary set of steps in a shopping mall.  Measurement of the risers of the steps indicated that they varied in height from the bottom of the steps as follows:  5 3/4 inches; 5 3/4 inches; 5 3/4 inches; 5 inches; and 7 inches.  A person climbing these stairs would encounter three successive steps with a uniform riser, then a fourth step with a  lower riser, then a fifth step with an additional  2 inch higher riser.  An injury resulted.  The applicable building codes require riser height and tread width to be uniform throughout any flight of stairs. 

    Another case involved what appeared to be homemade outdoor steps.  The following defects were noted:  there was no handrail; the porch carpet was torn near the steps; the carpet did not extend to the edge of the steps by ½ inch; the top thread was severely warped and rose upward in the rear of the step, creating a ski slope effect, especially dangerous if snow or ice was present; the top horizontal board on the porch did not extend to the edge of the porch, creating a ½ inch mini-riser at the top of the steps.  Counting the mini-riser, the risers descending were ½ inch; 6 inches; 6 7/8 inches.  Counting the mini-tread, the treads descending are: ½ inch; 11 inches; 11 1/3 inches; and 11 ½ inches.  The carpet on the porch combined with no slip-resistance on the steps created a slipping hazard because of the change in the coefficient of friction.

    Commonly encountered trip hazards include a single step riser. Such trip hazards should be eliminated to provide an unobstructed surface or sufficiently highlighted to attract the pedestrian’s attention.  The unexpected and unmarked single step is a known tripping hazard. These steps may not be clearly seen because of placement, poor lighting or a visual merge with the extended walkway.  One banquet facility had a single step near to the exit.  The same carpet covered the entire floor, both before and after the single step. There were no obvious visual clues.  Some codes prohibit less than three steps.  Some single steps are obvious and clearly marked at the tread edge with noticeable warning markings.  The single step is unexpected except in parking lots and at curbs. 

     

     

  • PERSONAL UMBRELLA

     If you want the maximum protection possible from your automobile insurance policy, consider asking your insurance agent for a quote for a personal umbrella policy.  This coverage typically insures you for an additional $1,000,000 in liability, uninsured and underinsured motorist coverage.  While many people are not currently in the market for this amount of insurance coverage, it is a fairly inexpensive way to protect your own future earning capacity against accidental loss in a motor vehicle accident.  A typical personal umbrella policy requires you to carry $500,000 in liability, uninsured, underinsured, and homeowner’s coverage.  For an additional premium per year, your insurance overages are increased by $1,000,000. 

    Your future earning capacity is an important asset to protect.  A 30 year old wage earner, currently earning $30,000 per year, can expect to earn more than $1,000,000 over the next 35 years.  If this 30 year old person couldn’t work again because of an automobile or motorcycle accident caused by the fault of another driver, a claim could be made against that driver.  The bad news is that Pennsylvania only requires that each driver carry $15,000 in liability insurance with the average motorist carrying as little as $25,000 in coverage.  The good news is that you can protect yourself and your family with uninsured and underinsured motorist coverage.  You can also protect yourself with the personal umbrella coverage.  While this coverage may not appeal to you now, it is important to understand what is available on the insurance market.

  • THE VANISHING REMEDY IN CAR ACCIDENTS

    If you have been the victim of an automobile accident, you have certain rights which are guaranteed by law.  Basically, you have the right to be returned to the same condition that you were in before the accident occurred.

     

    ¨  You have the right:         To the very best medical care available with no out-of-pocket expense to you.

    ¨  You have the right:         To recover any lost wages or loss of earning capacity which may have resulted from the incident.

    ¨  You have the right:         To be compensated for any pain, suffering and inconvenience from the incident.   

    ¨  You have the right:         To an equitable settlement for permanent disabilities which might have resulted from the incident.                           .

    These are your rights but there has to be a source of compensation to provide an adequate remedy for these rights.  Pennsylvania requires that all motor vehicles be covered by automobile insurance.  But the state minimum coverage is only $15,000-$30,000.  Automobile insurance representatives have advised that the average coverage in Pennsylvania may be as low as $25,000-$50,000.  That means a person insured with the state minimum auto insurance only has a $15,000 policy to secure your above rights.  This was the minimum coverage required in 1974 and remains the minimum coverage today.  If this were indexed for inflation, the minimum coverage would be approximately $75,000-$150,000.

    Pennsylvania State Representative Aaron D. Kaufer has proposed legislation that would raise the minimum coverage to $30,000-$60,000 with $10,000 in property damage.  While this is still inadequate, at least it is a step forward.

    To put this in perspective, in 1974 the average cost of an automobile was under $4,000 and a candy bar cost 15 cents.  Now, the average cost of an automobile is approximately $35,000.   The state minimum medical coverage in Pennsylvania has remained at $5,000 since the 1990’s.  Health insurers are now seeking to claw back every dollar spent on accident related health care costs 

    According to Representative Kaufer, Pennsylvania law provides for the second lowest auto insurance limits in the United States. Only Florida is lower with $10,000-$20,000 limits.

    The good news is that you can protect your family, yourself and your earning capacity from this problem in the auto accident situation by buying uninsured motorist coverage and underinsured motorist coverage with stacking, and a personal umbrella. 

     

  • CAR ACCIDENTS, HEART & LUNG BENEFITS AND SUBROGATION

    This office ended the unjust subrogation of Heart and Lung  from police officers and other public safety personnel involved in Pennsylvania auto accidents.  In 1993, when Workers’ Compensation benefits were again subjected to subrogation in auto accident cases, governments began to claim subrogation rights from Heart & Lung benefits paid to public safety personnel.

    Heart and Lung Act benefits were created by the Legislature to provide full payment of salary to police officers, firemen and other law enforcement officers who are injured in the performance of their duties and by reason thereof are temporarily incapacitated from performing their duties.  These benefits are different from Workers’ Compensation benefits.

    Based upon a statutory construction argument, this office was able to convince the City of Pittsburgh to waive Heart and Lung subrogation in car accident cases.  When the City of Pittsburgh changed its position and attempted to collect this subrogation, this office filed a Declaratory Judgment lawsuit against the City of Pittsburgh.  Despite the fact that the Commonwealth Court had already ruled against public safety workers on this same issue in Brown v. Rosenberger, 723 A.2d 745 (Pa.Cmwlth. 1999), Allegheny County Common Pleas Judge W. Terrence O’Brien took the unusual step of disagreeing with controlling appellate authority and ruled in our favor.

    The City of Pittsburgh appealed to the Commonwealth Court, which convened a Court en banc, consisting of seven judges.  The Commonwealth Court ruled 6-1 against our position.  Judge Doris Smith-Ribner wrote a vigorous dissenting opinion in Oliver v. City of Pittsburgh, 977 A.2d 1232 (Pa.Cmwlth.  2009)

    This office appealed to the Pennsylvania Supreme Court, which unanimously reversed the Commonwealth Court opinion and ruled in favor of the public safety workers in Oliver v. City of Pittsburgh, 11 A.3d 960 (Pa 2011). This case is the basis for the elimination of the unjustified taking of personal injury settlement money from a long list of law enforcement personnel including: city, county, local and state police; LCB enforcement officers or investigators; parole agents; drug enforcement officers; park guards, firemen; deputy sheriffs; Game Commission and Fish and Boat Commission enforcement officers or investigators; and many additional state, local and county law enforcement.

    This is important because these liens can be large compared to the third party liability insurance available in many cases.  Pennsylvania’s minimum auto liability insurance limits of $15,000-$30,000 have not been raised since the last century, while medical costs have skyrocketed.  Many injured public safety worker occupy motor vehicles not covered by underinsured motorist coverage.  An injured person could be left without a remedy for their injuries after paying subrogation costs.  It is time for the Pennsylvania Legislature to end subrogation for Workers’ Compensation benefits in auto accidents.