APPELLATE; HEALTHCARE

In Tong-Summerford v. Abington Memorial Hospital, the Superior Court of Pennsylvania addressed whether a hospital waived its appellate issue by failing to specify the grounds of its evidentiary objection at trial. At trial and in its subsequent court-mandated concise statement of errors complained of on appeal, the hospital generally objected to the admission of an adverse event notification letter. For the first time in its appellate brief, the hospital objected to the letter’s admission because the Medical Care and Reduction of Error (MCARE) Act prohibited the letters’ use as an admission of liability. The court found the MCARE-prohibition argument waived because it was not raised before appellate briefing. (June 13, 2018)

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CLASS ACTIONS

In China Agritech, Inc. v. Resh, the United States Supreme Court held that, upon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations. The Court reasoned that the efficiency and economy of litigation that support tolling of individual claims do not support maintenance of untimely successive class actions. (June 11, 2018)

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CONSTRUCTION AND SURETY

In G4S Technology LLC v. Massachusetts Technology Park Corporation, the Supreme Judicial Court of Massachusetts addressed whether construction-contract breaches should continue to be covered by the common-law rule (that in relation to building contracts, a contractor cannot recover on the contract itself without showing complete and strict performance of all its terms) or whether the court should adopt a materiality rule to address construction-contract breaches. Here, the project was completed as specified, but the contractor had intentionally filed false certifications of timely payments to subcontractors. The court concluded that complete and strict performance is still required for all construction-contract terms relating to the design and construction itself but that ordinary contract principles, including the traditional Massachusetts materiality rule, would apply for breaches of other provisions, such as the certification requirement at issue here. The court further held that the breach-of-the-certification requirement was a material breach which precluded recovery for breach of contract. (June 13, 2018)

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GENERAL COMMERCIAL LITIGATION; REAL ESTATE

In 936 Coogan’s Bluff, Inc. v. 936-938 Cliffcrest Housing Development Fund Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether building residents’ claims for fraud and conspiracy to commit fraud were sufficiently detailed. The residents alleged that the management company and the Department of Housing Preservation and Development conspired together to induce the building residents to purchase units by making knowingly false representations about their intention to complete renovations and that the residents relied on these representations. In support of the fraud allegations, it was alleged that the renovation work was contracted to a defunct entity, that the management company and the Department of Housing Preservation diverted funds given to them by the residents, and that the residents were left with defective homes and an uninhabitable building. The court held that these allegations were sufficiently detailed to state causes of action for fraud and conspiracy to commit fraud. (June 12, 2018)

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GENERAL LITIGATION

In Caltagirone v. Cephalon, Inc., the Superior Court of Pennsylvania addressed whether the decedent’s father’s wrongful death and survival claims, premised on asserted violations of the federal Food, Drug, and Cosmetic Act (FDCA), were pre-empted by the federal system of regulation and enforcement by the United States Food and Drug Administration. The court held that the general rule is that no private right to enforce the law and regulations of the FDCA exists. (June 8, 2018)

In Anthony v. Parx Casino, the Superior Court of Pennsylvania held that a corporation is not subject to venue in a county based solely upon the business activities of a sister corporation in that county. The court held that a license awarded to a corporation, but not issued, did not create the quality or quantity of acts necessary to sustain venue in a county. (June 12, 2018)

In Pisack v. B & C Towing, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether under the Towing Act, towing companies that engage in non-consensual towing at the direction of the police are immune from liability under the Tort Claims Act (TCA) for claims related to the fees they charge. The TCA applies to private entities in limited circumstances where those private entities act under the control and supervision of a public entity to perform a governmental service. If the driver complained about the authority to tow which was derived from the police’s authority, immunity would apply. Because the driver complained about the imposition of fees which were not supervised by the police, the towing company is therefore not entitled to immunity. (June 14, 2018)

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INSURANCE COVERAGE AND BAD FAITH

In State Farm Fire and Casualty Company v. McCabe, the New York Supreme Court, Appellate Division, 3d Department, addressed whether an insurance carrier was entitled to a declaration that a homeowner’s insurance policy did not cover an underlying action arising from an assault because the injuries fell within an exclusion for intended injuries or willful and malicious acts. The court held that because the issues as to insurance coverage and exclusions were not identical to the issues decided in the related criminal proceeding and the insured did not have a full and fair opportunity to address some of the issues in the criminal proceeding, collateral estoppel did not apply. The court also held that the insurer failed to establish that some of the insured’s injuries were unintended so as to bar coverage under the policy exclusion. (June 14, 2018)

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LABOR AND EMPLOYMENT

In Carr v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether the Department of Transportation violated a probationary employee’s First Amendment rights when the Department terminated the employee based upon the employee’s off-duty personal Facebook posts. In the Facebook posts, the employee discussed her frustration with the poor driving habits of local school bus drivers and she stated that she would gladly crash her vehicle into a school bus full of babies. The court determined that the employee’s speech, while reprehensible, was of public (not private) concern. The court then determined that the employee’s speech was protected and her employment should be reinstated. (June 12, 2018)

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LABOR AND EMPLOYMENT; HEALTHCARE

In Gillispie v. RegionalCare Hospital Partners Inc., the United States Court of Appeals for the Third Circuit addressed whether it was proper to dismiss a claim brought under the “whistleblower” protection provision of the Emergency Medical Treatment and Active Labor Act (EMTALA), where an employee was terminated after she disagreed with her employer’s decision not to report a potential violation of the EMTALA. The court held that to resolve whistleblower claims under the EMTALA, absent direct evidence of retaliation, courts should apply the burden-shifting scheme used in Title VII disparate-treatment claims. The court held that the EMTALA’s whistleblower provision protects employees who inform personnel in a covered facility of a possible EMTALA violation even where the employee does not also inform any governmental or regulatory agency. The employee-nurse was not protected under the whistleblower provision because she did not make a report; rather, she disagreed with a decision regarding reporting. (June 12, 2018)

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PROFESSIONAL LIABILITYINSURANCE COVERAGE AND BAD FAITH

In Cohen v. Sive, Paget & Riesel, P.C., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a law firm committed malpractice by failing to advise its client to promptly notify its insurer of its claim as required by the client’s policy. The law firm argued that its client knew of the claim a month before it retained the law firm, and therefore the insurer would have denied the claim anyway. The court held that the record did not conclusively demonstrate that a month’s delay would have precluded coverage; entry of summary judgment was therefore inappropriate. (June 14, 2018)

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