Suing the City of Philadelphia and Other Municipalities

NeuwirthLawUncategorized

I recently received an inquiry from a caller from the internet who was hoping to force the City to clean up the Kensington neighborhood. This is not something you can sue over as the City has immunity for quality of life issues like this. Nevertheless, what is to be done? Kensington is a mess, an eyesore, a failure of our social compact where we pay taxes and the City maintains the City in good working order. If you don’t know what I am talking about, google tik toks on Kensington. It’s not pretty. When I asked a local Kensington resident if there were any positives or green shoots or hope, he said, well, there is no obesity epidemic here.

While Kensington is perhaps an outlier, this is a problem occurring in various forms in other cities. When opiods were ravaging Appalachia, it was less obvious or apparent. Now, homelessness and drug use are more apparent and the solutions remain unproductive or ineffectual.

Regardless, you can only sue the City of Philly, or Norristown, or Allentown for certain prescribed offenses. No matter how negligent an employee is, that does not open them to suit unless they are driving a city vehicle or failing to maintain property or sidewalks etc.

So, what are the requirement to sue the City or the Commonwealth? They are minimally different. To sue the City, you must have a sidewalk or real estate owned by the City that causes your injury or be hit by a City vehicle. Those are the popular ones in my caseload. For example, you are riding your motorcycle and hit a pothole and are injured. That’s a case. Or, you are at City Hall and a beam falls and hits you. That’s a case. Or you are walking past a City building and the sidewalk rises up and trips you. That’s a case.

But, that is not all. You have to give notice to the City within six months of the injury, have $2,500 in medical bills, and have “permanent impairment of a bodily function.” That is hard bar to meet. Fortunately, scarring meets this test. I had a client who suffered back scarring after a motorcycle crash and that met the test. Often, any surgery meets this threshold. But, this is a serious threshold to be evaluated before filing suit. Finally, damages against the City are capped at $500,000.  In major cases, this is painfully unfair. In most cases, this is fine. However, if you are suing the Commonwealth, damages are capped at $250,000.

Finally, there has to be notice to the City of the defect. This is usually discoverable and is an important part of a lawyer’s work in these cases.  You need to prove actual written notice of a defect to sue the Commonwealth, as opposed to constructive notice against the City. Actual notice is hard to establish. I have never failed to prove this, but it is still a high bar. Often, if a road is in poor shape or a sidewalk looks like it has never been repaired, you will be able to find complaints and that is actual notice. I had one case where drivers were complaining that driving on Vare Avenue was like playing a game of dodgeball because it was so pitted with holes. That is good notice to all involved.

Originally published Sept 26, 2023

 

If you are a litigator, it’s time to get out the popcorn: Donald Trump Civil Trial

NeuwirthLawCase Matters, Courts, In the News

So, there are a lot of things that the general public does not know about litigation in the real world that lawyers who actually litigate cases consider litigation 101. Trump’s trial is going to reveal the basics to the public I guess.

What are the basics so far? 1) request a jury trial at the time of your first pleading. In New York, you have to simply check a box.  In Pennsylvania, you have to check a box when you file a complaint. Or, the defendant can request one in their answer or first pleading. It is pretty basic stuff. You always request one. It adds $400 or so in cost to the first filing of the lawsuit, but it covers your tail and you don’t have to think about it further. You can ALWAYS withdraw your request for a jury trial. So, Trump’s lawyers failed to do that. That is pretty basic malpractice in my mind unless there was a memo saying save the $400 or do not request the jury trial. For Attorney Habba to stand up in Court and ask why there was no jury trial, suggests that she did not read the case file, which is embarrassing. It also seems like nobody wanted to tell Trump about this error. I would guess that he will file a malpractice claim against Habba and/or refuse to pay her bills. Odds are that he is not paying her bills and her firm is going to be on the hook for a lot of lost time.

Basic Rule #2: No matter how much you hate the trial judge, don’t piss him or her off. Trump seems to have done this with his usual panache. It makes it very difficult for the judge to give you the benefit of the doubt on close calls if you anger him or her.

Basic Rule #3: If you lose on summary judgment, you better engage in settlement negotiations. Plainly, Trump’s lawyers do not have permission to settle the case. Nevertheless, having lost summary judgment, floundering around in Court is just going to increase the damages. No appellate court is going to reverse a verdict by this judge, so you better find a way to reduce your damages.

Moving on to more subtle points. While the media is all hot and bothered about the failure to request a jury trial, it bears asking why this matters? Would a jury trial in New York City help Trump? How? Perhaps anything is better than the judge most familiar with Trump’s misrepresentations. But, a New York jury would see fairly quickly that if you are telling taxing authorities something totally different from what you are telling lenders, then they cannot both be true. Once a jury begins to see the average person as a liar, the case is lost and anything goes. Here, where Trump is a known liar, it’s not too hard to get to the point where a jury could come back with a huge verdict against him. The only way around that would be some sort of show for the jury about how this is political persecution. That might play in Oklahoma, but in New York and Manhattan of all places? It just seems like a disaster waiting to happen for Trump.

What might happen? Well, much like Fox’s Dominion Voting Machines eleventh hour 750 million settlement, there could be a late settlement with the Attorney General in the next few weeks. If not, it’s going to be a big verdict.

Finally, the Trump Organization’s CFO, Allan Weisselberg, was not a licensed CPA and had no idea what GAAP meant. Uh oh. This is absurd and harkens back to Bernie Madoff-esque conduct. If you are running an allegedly important and busy real estate empire, it is curious to not have a CFO with an accounting degree. He claims to be an accountant by training. Well, there are a bunch of lawyers who are lawyers by training but could not pass the bar exam. This is something that interferes with their ability to find jobs as lawyers because they cannot sign legal documents. This did not occur to the Trumps? Instead, it probably did. Weisselberg could not work as an accountant outside of the Trump Organization, much like the Madoff fraud. Finally, even those who are not CPA’s could probably learn what GAAP earnings are. Weisselberg did not even do that. This is really a problem. The case is over if you are relying on Weisselberg to give you honest reasons for various valuations of the business.

 

What’s new in Mass Tort Law? Phillips CPAP and Hair Straightener Litigation

NeuwirthLawCase Matters, Medical Malpractice, Product Liability

I was recently contacted about a developing mass tort situation involving Phillips CPAP machines and decided that the client did not have a case. The issue in these cases is whether a connection can be drawn between cpap machines and a patient’s cancer. After reviewing the literature and the patient’s pathology report it appeared that the one thing I could be sure of was that the patient’s cancer was not caused by the CPAP machines. How do I know that? Well, the pathology report noted that the tumor staining revealed HPV. HPV is a highly contagious human virus. It could come from a lot of sources, but not from the CPAP. So, no case.

CPAP machines are a widely used device for sleep apnea. They basically help you have continuous oxygen flow while asleep. However, they have been found to have filters that basically either cannot be properly cleaned or leach carcinogenic fumes directly into the user. So, Phillips has now recalled ALL of its CPAP machines and paid a $700 million plus fine. That is not a big fine for them. The question is whether the machine recall and carcinogenic fume discharge can actually be tied to a particular patient’s cancer. This is a developing situation.

If you want to discuss, CPAP litigation and have a head and neck cancer diagnosis, send me an email at andrew@neuwirthlaw.com.

In some mass torts, like Round Up, victims of the product developed a very unique cancer that really could only be from the Round Up exposure. Basically, if you were a pilot crop dusting round up or around it in huge amounts and developed that cancer, you had a good case.

Another new mass tort that is developing is hair straightener litigation. Women using hair straightener were 2.5 times more likely to develop uterine cancer than a control group. So, the users were at an elevated risk of developing a very difficult to treat cancer. Uterine cancer is tough to treat because the uterus does not generate notably pain or other symptoms until the cancer has spread and cannot be cured. So, whether there is a provable link to the hair straightener, you will have a lot of uterine cancer victims who are deceased and hence have a lot of very upset family members and sympathetic jurors. That is one to watch.

If you want to discuss, hair straightener litigation, send me an email at andrew@neuwirthlaw.com.

You Get What You Pay For: Mediation

NeuwirthLawCase Matters, Courts, For Lawyers, Insurance, Law Practice Management

You cant always get what you want—but you’ll find—you get what you need.

 

I am in the middle of negotiating the end to a case with clear liability, clear damages, and some thorny legal issues. When I get towards the end of a case, mediation is often a way to resolve it. I rarely arbitrate cases these days. Mediation is basically a negotiation where both sides want the case to settle but cannot get close on settlement figures for various reasons. So, the parties turn to a mediator. Many of the courts offer a free mediation and we get all prepared to mediate the case and have it resolved only to find that the judge mediating the case is not nearly as effective as the private mediators that we all use on a regular basis. But, the court mediation is free. So, you paid nothing, but got an insufficiently effective outcome.

A friend of mine, Charles Forer, Esq. is a busy corporate litigation mediator. Before that, he was a litigator for decades at a large local law firm. This is a common career path for many mediators. Often, mediators come from the defense side so that insurance companies will agree to use them. I don’t usually care who the mediator is as long as they have proven effective in the past.

Consider the following scenario that faces many clients at a mediation: Imagine if you had to get to the hospital an hour away and your car was out of gas. You have a choice of putting pump 1,2, or 3 into your car. The pumps are unmarked. You are told one has gas, one has diesel, and one has water. Water will not get you to the hospital. Diesel will not get you there and will destroy your engine. Are you willing to guess and take a chance? Alternatively, there is a guy standing there with a 5 gallon bucket of gas that costs $10 a gallon. $10 a gallon? Outrageous. But, it gets you to the hospital. So, what do you do? Are you Phil Ivey, Phil Hellmuth, Texas Dollie? If you don’t know who these people are, I would suggest you take the bucket of gas and get to the hospital.

What makes for a good mediator? First, getting the case settled for a fair number. That is a number that is agreeable to my client and to the insurer. The insurer will have to be satisfied or else the mediator will not get future work from them. So, there is a balance between what my client wants, what the insurer can tolerate and what I think is the settlement value of the case.

A good mediator can get most personal injury cases under a million dollars settled within 3-5 hours or less.  By the point a case gets to mediation, both sides are mostly ready for trial or the case is very clear after discovery. The prospect of trial adds urgency to the mediation.

Often, the mediator has to figure out a few things. One, what is the bottom line for the plaintiff and defendant. So, what is simply unacceptable or your walking away from the table. Second, there is the mediator has to scare both sides of the risks of trial. For my clients, many have dreamed of big paydays for two years and despite me trying to tamp down expectations, the mediator is usually the first person to tell them awful war stories of plaintiffs losing cases at a jury trial. For me, that is worth the cost of the mediator. There is always the tension between me and the client where the client wants more than the case may be worth. The value of any single case does not affect how financially successful my year is. Some settlements are bigger and some are smaller, but few if any are truly year changing. But, on the off chance that the client thinks I am trying to settle the case to get my legal fee, the mediator’s experience and war stories usually make it clear that what I am saying is the truth.

So, what is your case worth? Generally, there is a ballpark number for different injuries. Lawyers for both sides know roughly what a case could settle for regardless of the minutiae of the case. The client however does not have a clue as to how we got to that number. It is just years of experience. A jury could give you 100,000 or 400,000 or 3,000. The jury has no experience and no real means by which to assign a figure. So, mediation is a way to come to a number that is a success but not a huge lottery win. For most parties most of the time, it is a lot better than the uncertainty of going to a jury.

 

Cloudy with a chance of a lawsuit?

NeuwirthLawSuing Big Box Stores

If you don’t know the children’s book Cloudy With a Chance of Meatballs and the movie, the townspeople never had to shop because their meals would fall from the sky fully prepared. Later on, climate change makes things dangerous. For me, the notion of things unexpectedly falling from the sky is instructive.  For no apparent reason, I have been on the receiving end of a series of claims against Home Depot and Lowe’s and other big box type stores.  The typical case goes as follows: A person goes to Lowe’s and is picking something off of a shelf at head level or higher.  There are no ladders around and customers are not permitted to be on ladders anyway.  So, the customer pulls a 2×4 or something large off the overhead shelf and Bam! something other than the 2×4 falls on them from above.  I have had two or three of these calls in the past six months and I am just one of many personal injury lawyers so it is safe to assume that this is a persistent problem. I used to have one a year, but that looks to have quadrupled by my count.

Is this a case? Of course, it is. You are there as a customer or a business invitee as we lawyers call you. The law says Home Depot has a legal responsibility to investigate and determine if there are dangers in their store. If they fail to detect the danger, they are liable to you. Further, if they created the danger, they are liable.

So, what’s the big deal? Well, often people have minimal injuries, but I was recently consulted by a client who was hit on collarbone by a falling “safety bar” as the big box store calls it. When you are injured by something called a safety bar, you can be pretty sure that that case is going to be settled or your lawyer will have a field day at a deposition. Why? Well, first, things are not supposed to fall out of the sky and hit you. Second, safety things are not supposed to hurt people. Overall, the big box retailer loses. The only question is when and for how much.

As a result of these indefensible situations, most big box retailers have pre-suit mediation programs that settle these cases. As with most clear liability cases, the injuries are what drive the value of the case. More injuries, more dollars for the client. Easy to understand. Basically, it’s a pretty safe bet for me to take clear liability cases and make sure to have real definable injuries. Real injuries are things like a broken this or nerve injury detectable on Emg etc.

How to Build a Book of Business or Are You Hungry?

NeuwirthLawLaw Practice Management

So, “how to” is the most searched term in the internet. Interesting right. It makes sense. How many of us have ever searched how to build a book of business? For lawyers and professional services businesses like CPA’s or architects, building a long-term book of business should be important if you want to succeed.  There are rainmakers and the worker bees, but you can ensure a long career if you are a rainmaker and not a worker bee. Worker bees are fungible. It’s SAT word day here at Neuwirth Law.

I am currently looking to meet professionals who don’t know me. If you want a free lunch and have a law degree, a CPA credential or an M.D. or D.O., I will come to you and lunch is on me.

I have a family member who I keep trying to send business to. They are a young lawyer, but they are always too busy to hop on the phone, talk to the client, and analyze whether there is a case there or not. I am referring the case because it is not my area of the law and I don’t know if it’s a case or not. I know another lawyer who worked an entire career as a defense lawyer for insurance companies and never had to and hence never did build a book of business outside of the insurers who sent them cases.

In both these situations, the lawyers are probably good lawyers doing good work on a daily basis, but they are missing the opportunity to build something. They probably don’t know what they are missing or what they should be doing. Sometimes, people are wracked with fear of risk and simply cannot leave the tried and true. But, if someone presents you with an opportunity to try something new or different, it is then up to you to follow through.

The simple process of reaching out to potential new business and seeing what works or what doesn’t is not easy for most people. I am not most people at least in my own mind. I don’t mind meeting people and chatting. I like to eat lunch. It’s fairly easy. The worst thing is that I met someone new. But, to not try is going to get you nowhere.

Mink on the Loose in Pennsylvania: Nuisance

NeuwirthLawCase Matters

Minks are a nuisance? Hold my beer…

I love a good mink story. According to the New York Post, some animal activist released 6,000 mink from a mink farm in PA. I know next to nothing about mink or minks. What I do know is that mink farming forms the basis for one of the pivotal cases in nuisance law.

I always have a few nuisance cases in my case load because they are largely indefensible and fun to work on. I currently have cases in litigation against UGI, a big gas transporter and Energy Transfer or Sunoco’s successor for being a nuisance to the community. The UGI case alleges that it operates a compressor plant that runs 24/7 compressing natural gas in northern PA and destroyed my client’s family hunting grounds as bucolic places of refuge. Bucolic is a good word. In any event, the compressor plant is not moving and nor is my client.

So, back to the minks. In this law school case, a mink farmer sued a neighboring manufacturing plant for injury to his business. Apparently, mink are anxious creatures as you or I would be if we were prey or had a future as a coat. When exposed to loud noises, the mink refuse to mate and become useless to the farmer. The case went forward and the manufacturer could not just move their plant and the minks were not changing their behavior. This is a classic case that has to go to a jury. No settlement will really be possible. The mink owner won and the manufacturer appealed, but the mink owner ultimately prevailed. Presumably, the mink owner took the verdict money and moved elsewhere, but essentially, the manufacturer’s nuisance or noise had forced the mink farmer to move.  Classic nuisance.

The interesting thing about nuisance cases is that the noisy neighbor is not going to be enough to interest a lawyer in taking your case because there is simply not enough damage to make money for the client and the lawyer. In general, if the lawyer makes money but the client does not, the client will not be happy. I have a general rule that in settlements, I will not take more as a fee than the client gets in their pocket. I don’t know if this is routine or not, but there are situations where there is a large health care lien that has to be repaid or a large litigation expense that throws the settlement out of whack. Having a happy client is an important part of running a referral-based business. In every situation where I cut my fee, the client always thanks me and appreciates it.

Influencers Gone Crazy / How it Affects the Law of Evidence:

NeuwirthLawCase Matters, Courts, For Lawyers, Product Liability

It is getting harder and harder to trust anything online these days. Be careful what you read or consume is just no longer possible. To be fooled is easy for all of us. If you are somewhat attuned to the social media world, like I am at 55 years old, it is easy to miss fakes, deepfakes, photoshops etc.  I recently saw a guy with a side hustle renting out a gulfstream jet that was under repair for influencers to use as a set showing them in their private jet on the way to fakeland. It was worth a chuckle and smh. Don’t know that abbreviation (shaking my head a/k/a people are crazy)? Suffice it to say that we will all be deceived in the future. The sheer amount of fakery out there affects perceptions of all things internet.

In Court, how a judge perceives the internet and its reliability will matter in a lot of cases.  I recently finished up a products liability case where consumer complaints about a product were a major point in my case. I was trying to establish that prior complaints meant that the company was on notice of the dangers of the product and that similar incidents had occurred.  The complaints were made online through a store’s website and responded to by the manufacturer. Many complaints were noted to be by “verified purchaser”. To me, these were admissible for a variety of reasons. To the defense, they were merely out of court statements offered for the truth of the matter asserted.  That is classic hearsay and not permissible in evidence because you cannot drag the internet commenter into court to cross-examine them.  But, the law moves slowly and painfully slowly at times.   Should internet comments and reviews be admissible?  It certainly seems like they should in my case, but reliability is the lynchpin or gravamen or touchstone of evidence and admissibility.  There are ways around the rule against hearsay, but pithy internet commenter posts are amusing and often distill the problem with the product to its very essence.

How Much Does The Personal Injury Client Affect Settlement and Deposition Preparation?

NeuwirthLawCase Matters, Courts, For Lawyers

It matters a lot. Are you a Roger Federer type or Novak Djokovic? Some people are just very genuine, approachable, and likeable people. Others are not. Most of us are somewhere in between. But, those likeable guileless people are going to get a better settlement for the same case. Why? Well, more than likely the deposition displayed the plaintiff as he or she is and the defense lawyer saw it and communicated that to the insurer. Even in cases that I have handled where liability is a close call, often we get the case settled because the plaintiff was just such a nice genuine person that jurors would just melt at their story.

 

For example, I had a client who was fairly hurt coming home in a Lyft car from a church service. The church was her social group and she was there on a Saturday night. The defense lawyer asked if she was drinking and if that was why she took a Lyft car. The client said she does not drink as her church forbids it and is one of the many paths to evil, but that she understood why the defense lawyer would ask that and it was a good question. Now, I certainly did not prepare her to say that, but I knew that her personality would come through as the person she was. Did it matter to her case? Yes, because the defense lawyer just had to chuckle and tell her insurer that you did not want to go up against her in court. The jury would love her and hand her a pile of money.

 

So, what lesson does that teach me or possibly you? Well, I like to keep my case load full of people I like and want to represent. I do represent people who are difficult or suspicious of defense lawyers or make a poor presentation through no fault of their own. For them, I try to gently explain that fighting with the other lawyer is not a good idea or that they have a tendency to speak over people that is annoying. Some clients are chatty and some are not. Most of my clients have not been deposed before and it is an anxiety producing experience, but nearly all are adults and able to handle themselves with a little practice.

In many insurance defense cases, which are most of my routine car accident and slip and fall cases, defense lawyers are overworked and not terribly invested in their cases. Often, they will prepare their witnesses for a half hour literally right before the deposition. On the Plaintiff’s side, I think that is not acceptable. I spend two to three hours preparing my clients for a one hour deposition both to get them used to what is coming, to discuss issues, and to show them that I am working hard for them and earning my fee. I call all my clients after their deposition to debrief them. The one thing I want to hear at the end of the deposition is that we anticipated and they were prepared for all the questions that were asked.

 

 

What happens When You Win a Motion for Summary Judgment or What I did this weekend on my way to Tenerife?

NeuwirthLawCase Matters, Courts, holiday, Slip and Fall, Sue The City

 

Tenerife you say? I had a chance to go visit the Canary Islands over the Labor Day holiday weekend and Tenerife is one of the largest and most visited islands in the chain. It’s a long but entertaining story. Anyway, the Islands are a bit like Europe’s Caribbean, I think.  Beautiful, volcanic islands off the coast of Africa and nearish to Morocco. They grow bananas and welcome tourists.

Anyway, while it’s supposed to be a vacation, I brought in my carry-on luggage 7 deposition transcripts and a few highlighters.

Why? Well, after a long five month wait, the Federal Judge in my slip and fall case against TSA decided a Motion for Summary Judgment in my client’s favor and now trial is on the front burner. So, I was reading transcripts to identify motions in limine subjects that I want to have the court consider.

While motions for summary judgment are rare in personal injury cases, the motions in this case addressed the discretionary function exception, which I have written about previously. In the Judge’s opinion, she agreed that the TSA floors at the Philadelphia Airport are slippery and while I always believed that to be the case, it is now a fact according to the finder of fact.

Interestingly, while I expect an effort to settle the case will be forthcoming, there is a novel issue arising. This case is brought under the Federal Tort Claims Act (FTCA). Under the FTCA, a plaintiff is only entitled to a bench trial, meaning you don’t get to have a jury decide your case. This is a way for the feds to control exposure I guess. But, one of the defendants in this case is the City of Philadelphia. The City’s regulations require it to always seek a jury trial. So, there will have to be some fighting between the defendants over whether to have a bench trial, jury trial, both or some hybrid. I do not have to take a position yet on this and doubt that I have a position to take. There is a federal statute saying I don’t get a jury trial. I think pursuing anything other than that is not likely to be successful. But, it should be a fun watch. I will bring the popcorn.

Annoyingly, the US Attorney’s Office always takes time to remind plaintiff’s counsel, like me, that the FTCA also limits attorneys to a 25% fee as opposed to our more standard 35% fee for trial cases. Again, not a lot I can do about that.