PENNSYLVANIA: CATASTROPHIC LOSS — Set Aside: $20M Verdict
by John J. Snyder and William J. Carr
jsnyder@rawle.com; wcarr@rawle.com

On August 5, 2013, in Ruick and Holly Rolland v. Modern, et al., Philadelphia Court of Common Pleas, December Term 2009, No. 03110, the Honorable John Milton Younge vacated a $20 million verdict following oral argument on Post-Trial Motions.

The Modern defendants were represented by John J. Snyder and William J. Carr of Rawle & Henderson LLP and Thomas Reilly and Allan Scholler of the Chartwell Law Offices LLP.

Jack Snyder, Chair of the firm’s Catastrophic Loss Group, and his trial team assumed control of the defense in this case for trial after discovery had closed, motions for summary judgment had been briefed and submitted, and expert reports had been produced. 

Plaintiff Ruick Rolland and his wife sued Modern and several other defendants for personal injuries sustained when Rolland was injured by a track loader (a type of earth-moving equipment) that had been rented from Modern and was being operated on a construction site at which, according to disputed testimony in the case, Rolland was in charge.  Plaintiffs claimed that the injury occurred because the equipment was being operated by a child, but there was testimony that the child was following Rolland’s directions. According to plaintiffs’ Complaint, Rolland was holding up an inexpensive garden hose so that the machine could drive forward underneath the hose, at which time his left leg was crushed by the track loader, requiring amputation above the knee.  Rolland’s role on the job site was a hotly contested issue in the case. 

Despite disputed issues regarding, among other things, the negligence of the party to whom the instrumentality was entrusted, the negligence of the plaintiff in supervising that party and causing the accident, and the relative culpability of other defendants in the case, Judge Gary S. DiVito entered partial summary judgment against the Modern defendants on a negligent entrustment claim.  Judge DiVito’s unprecedented decision left Modern defenseless at trial.  Given that the allocation of fault is a jury function and the decisions by the trial court were such a departure from accepted judicial practice, Jack Snyder and his team pursued an interlocutory review by the Superior Court, which denied the petition.  Thereafter, defense counsel petitioned the Supreme Court of Pennsylvania, which also denied their petition.

Trial commenced on March 11, 2013, during which Modern was not permitted to contest Judge DiVito’s finding of negligent entrustment of the track loader to 10-year-old Stevie Senn or the finding that this negligent entrustment was the proximate cause of plaintiff’s accident.  Not only was the jury repeatedly reminded of this judicial determination by plaintiffs, but the charge and verdict sheet submitted to the jury specifically noted these issues.  After 14 days, the trial concluded with a verdict in plaintiffs’ favor.  Pursuant to the Court’s pre-trial rulings, the Court found itself constrained by the law of the case to pre-mark the verdict sheet accordingly.  As a direct and inevitable result of the pre-trial rulings, the jury found that plaintiff was not negligent. The jury awarded plaintiffs the sum of $20 million.

The Modern defendants filed timely post-trial motions seeking, among other things, a new trial based on a number of issues emanating from Judge DiVito’s erroneous pre-trial ruling on partial summary judgment, which included shifting the burden of proof to defendants; failing to acknowledge outstanding material issues of fact that pertained to the issue of negligent entrustment; and the jury’s apportionment of 0 % fault to plaintiff in complete disregard of the considerable evidence of plaintiff’s own gross negligence, if not recklessness.

William J. Carr argued the post-trial motions on behalf of Modern.  He stressed that the best evidence of the pre-trial Order’s effect on the trial was the jury finding that plaintiff, Ruick Rolland, was not contributorily negligent, which was against the overwhelming weight of the evidence.  He also emphasized that the pre-trial Order could not be viewed in isolation as it permeated every aspect of the trial and affected the jury’s consideration of the evidence as well as its deliberations.

Judge Younge agreed and found the verdict to be “shocking” given the facts and evidence that were presented at trial.  He understood that the pre-trial summary judgment Order of Judge DiVito was in error because, among other things, it shifted the burden of proof from plaintiffs to defendants and the Order distorted the jury’s consideration of the evidence as well as its deliberations.  Judge Younge also acknowledged that there were real issues of disputed fact that relate to liability and causation that deserve determination by a jury, but Judge DiVito’s entry of summary judgment against Modern impermissibly took those issues away from the jury’s consideration. 

Counsel for plaintiffs characterized his client as a “schlub” (a talentless, unattractive, or boorish person), to which a clearly irritated Judge Younge strongly responded that “Under these facts, the plaintiff was not the innocent bystander you make him to be.” 

It is anticipated that the plaintiffs will appeal Judge Younge’s ruling to the Superior Court of Pennsylvania, which will trigger a lengthy appellate process before final disposition comes to this litigation.

Ruick and Holly Rolland v. Modern, et al., Philadelphia Court of Common Pleas, December Term 2009, No. 03110

John J. Snyder is Chair of the firm’s Catastrophic Loss Group and focuses his trial practice on the defense of catastrophic injury, with particular emphasis on construction, industrial, pharmaceutical, medical malpractice and product liability matters.  He is a very experienced litigator, having tried a large number of trials to verdict in Philadelphia and the surrounding counties.  Jack and the Catastrophic Loss Group specialize in receiving high exposure cases (demands commonly in the $30 million–$80 million range) weeks to months before trial, and trying the cases to verdict. He is an active member of the bar in the states of Pennsylvania, New York and New Jersey.  He is also admitted to practice in the federal courts of Pennsylvania as well as the U.S. Court of Appeals for the Third Circuit.

Jack can be reached directly at (215) 575-4220 • jsnyder@rawle.com

William J. Carr focuses his trial practice on catastrophic loss cases including construction accidents, defective products, fires and explosions, industrial plant accidents, tractor-trailer and commercial vehicle accidents, crashworthiness, dram shop cases, maritime accidents, crane accidents, brain injuries, burn injuries, spinal injuries, and medical/professional malpractice.  Bill is admitted to the bar in the states of Pennsylvania and New Jersey as well as the U.S. District Court for the Eastern District of Pennsylvania, the Middle District of Pennsylvania, and the District of New Jersey. He is also a member of the Philadelphia and Pennsylvania Bar Associations.

Bill can be reached directly at: (215) 575-4221 • wcarr@rawle.com

AMERICAN COLLEGE OF TRANSPORTATION ATTORNEYS

Timothy J. Abeel, chair of the firm’s Commercial Motor Vehicle Section, attended the 2013 American College of Transportation Attorneys (ACTA) annual meeting in Chicago, Illinois in August. Mr. Abeel is a founding member of the ACTA, a nonprofit association composed of 25 nationally known transportation attorneys who have extensive experience defending the trucking industry with regulatory and litigation issues. ACTA provides motor carriers with assistance at no expense on a variety of issues that affect the trucking industry on a regular basis. The ACTA annual meeting included roundtable discussions on topics including traumatic brain injury, motor carrier insurance forms and broker issues, preparation of motor carrier witnesses, broker liability, evidence/spoilation issues, worker classification, and on-board technology.

Tim has defended transportation companies in the state and federal courts of Pennsylvania, New York, New Jersey and Delaware for more than 30 years. He was one of the founders of the Trucking Industry Defense Association (TIDA) and he served as President of TIDA in 2000-2001. From 1994 to 2003, he was a member of the TIDA Board of Directors. His clients include some of the largest transportation companies and insurers of commercial motor vehicles in the United States. He is a member of the firm’s Executive Committee.

ARKANSAS TRUCKING SEMINAR

Robert A. Fitch has been selected to speak at the Arkansas Trucking Seminar on September 26, 2013. The conference will take place at the Embassy Suites Northwest Arkansas Convention Center in Rogers, Arkansas.  Bob will be participating in a session on “Managing Surveillance & Investigations for Maximum Benefit in Casualty Losses.”

Bob is the resident partner in the Rawle & Henderson LLP New York office. He concentrates his practice in the defense of architects and engineers, construction, medical and oral surgery malpractice claims, and commercial motor vehicle litigation. He received his undergraduate degree from Syracuse University and his J.D. from Syracuse University College of Law. He is admitted to practice in New York since 1974, as well as in federal courts in Southern, Eastern and Northern Districts of New York and the Second Circuit Court of Appeals. He has tried over 100 cases to verdict and is a member of the Defense Research Institute, Federal Bar Council, PIAA and Trucking Industry Defense Association. He was selected as a New York Metro Super Lawyer by the publishers of Law & Politics in 2013. He has a peer review rating by Martindale-Hubbell of AV (the highest).

  RRV17N9.pdf