• Are We Done Yet? The Challenges of Reaching Finality In Litigation
  • August 28, 2013 | Author: Matthew C. Wilson
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office
  • Key Points:

    • Dealing with an unreasonable plaintiff can needlessly prolong litigation.

    • Despite the best efforts of defense counsel to curtail defense and indemnity costs, in some cases, litigation expenses are bound to outstrip the actual value of the case.


    Sometimes, despite the best efforts of defense and plaintiff's counsel to bring swift resolution to litigation, a case will drag on and on due to the unreasonable expectations of the plaintiff. The Philadelphia Court of Common Pleas case of Jones v. Smith & Wollensky, PCCP March Term, 2008 No. 5072, (now more than five years old and still on appeal), illustrates some of the difficulties that counsel can encounter when trying to bring finality to a case.

    The underlying claim in Jones involved allegations of premises liability against the Smith & Wollensky restaurant located on Rittenhouse Square in Philadelphia for a slip and fall experienced by the plaintiff, Dr. Mable Jones (a neuroradiologist), due to water on the floor. On the day of the incident, Jones attended a spa appointment at the Rittenhouse Hotel and then walked into the restaurant in the same hotel to meet her daughter for dinner. She claimed that she slipped and fell as a result of water on the floor, and hit her right shoulder on a chair and table and the back of her head against the floor. Jones cancelled her dinner reservation with her daughter, but she later walked to a restaurant across the Square, had dinner and drove home. She went to the emergency room two days later. After a negative CT scan, she was diagnosed with a head injury with concussion. The single emergency room visit constituted her entire treatment for her alleged injuries.

    The litigation began innocently enough in Philadelphia County in 2008, when it was filed under the Compulsory Arbitration Program, which limits the potential value of the case to $50,000. Jones alleged pain and suffering due to conditions in her shoulder, right knee, and the back of her head and sought to claim cognitive deficits as a result of hitting her head on the floor. Following a hearing before a panel of three attorneys, an award was entered in favor of Jones in the amount of $3,800. This would have been the first occasion where defense counsel would have anticipated finality. However, while the defendant was satisfied with the award of the arbitrators, Jones felt slighted with the amount of damages awarded. Therefore, she exercised her right to take an appeal and proceed to a jury trial de novo in the Philadelphia Court of Commons Pleas.

    The appeal guaranteed that both parties would incur additional litigation expenses for a case that already had been adjudicated as having minimal value. Not wanting to "throw good money after bad," plaintiff's counsel sought to withdraw his representation. However, before a hearing could be conducted on the motion to withdraw, the court scheduled a settlement conference. Following the settlement conference, both defense counsel and plaintiff's counsel believed the case was settled for $12,000. The court marked the case as settled, and defense counsel sent a letter and a release to Jones' counsel indicating the terms of their agreement. Jones' counsel then withdrew his motion to withdraw as counsel, as it had not yet been ruled upon as of the time of the settlement. This would have been the second occasion when defense counsel assumed the litigation had concluded.

    After nearly five months, defense counsel filed a petition to enforce settlement since she had not received the executed release from Jones. Jones' counsel filed a response "in opposition" to that petition, in which he actually admitted he had been given authority to settle the case for $12,000, and submitted a proposed order that would compel his client to execute the release. The court then scheduled a hearing on the petition to enforce. Both Jones and her counsel failed to appear at the hearing. The court then entered a slightly confusing order that granted the petition to enforce the settlement of $12,000, and in the alternative, vacated the arbitration appeal and reinstated the original arbitration award of $3,800. This marked the third time when defense counsel could rightly assume the case was ready for closure. However, the very next day, Jones filed a motion for reconsideration, which was immediately granted. The order granting the petition to enforce was vacated and a new hearing was scheduled. Following testimony from Jones at the hearing, the court: denied the petition to enforce; allowed Jones' counsel to withdraw; gave Jones 60 days to find new counsel; and instructed that, thereafter, the case would be listed for a jury trial. Thus, the case was literally back to square one, despite the passage of a significant amount of time and the expenditure of money in defense and prosecution costs, which certainly exceeded the original arbitration award and the proffered settlement amount.

    Even though it took Jones seven months to obtain new counsel, the court took no interim action in the case. After the passage of another six months with the involvement of new counsel, he sought to withdraw his representation. Initially, the court denied the motion to withdraw as it was under the mistaken belief that the docket entry marking the case as settled was still valid. Ultimately, the court vacated the order denying the motion to withdraw, and counsel was allowed to withdraw representation. Jones was, once again, given 60 days to find replacement counsel, and the case was placed in the September 2011 trial pool. It was not until the middle of September that new counsel entered for Jones. He sought to defer trial based on an assertion that Jones was to undergo a functional MRI to confirm her diagnosis of cognitive problems. That motion was denied, and the case proceeded to trial.

    In advance of trial, defense counsel filed motions in limine seeking to preclude Jones from presenting evidence of cognitive impairment or physical injuries since she had not identified any medical expert witness on her behalf. The court allowed Jones to act as her own medical causation expert, based upon her training as a neuroradiologist. Jones was then permitted to render her own self-serving testimony about the "cognitive deficits" she was experiencing as a result of the fall. She even was allowed to go as far as to claim, "There is a very high risk of not being able to care for" herself in the future. On cross examination, Jones admitted that her first attorney had obtained a neurological opinion from an independent medical expert who did not support her claim of cognitive deficits. At the conclusion of the trial, the jury awarded Jones $6,675, with a finding of 49 percent contributory negligence on her part. The verdict was then molded to award Jones $3,404.25, which is eerily close to the $3,800 originally awarded to Jones at the arbitration. This should have marked the fourth time that defense could have thought that the litigation had finally reached its end.

    Not surprisingly, the story does not end here. Jones filed post-trial motions which sought: (1) a new trial based on the court not providing a jury instruction on Jones' claim of lost future earnings; and (2) in the alternative, a motion for additur, which asked the court to increase the amount awarded to Jones on the basis that the amount awarded constituted a manifest injustice to the plaintiff. The court denied relief on the jury instruction issue as it found that Jones' former position had been eliminated; therefore, there was no basis for her to claim that her loss of future earnings were based solely upon her alleged injuries. The court also denied relief on the additur issue by noting that the amount of the jury award was consistent with Jones' single emergency room visit, a lack of a her own independent causation expert, and the fact that the medical expert retained by her own prior attorney had found no cognitive impairment.

    This would have marked the fifth time that defense counsel could have reasonably considered the litigation concluded. However, Jones has appealed the denial of her post-trial motions to the Superior Court. A decision is pending with briefs having been filed and argument held in May of 2013.

    So, after five years of litigation involving an arbitration award, a settlement, two withdrawals by counsel, no independent medical expert, a jury award and a denial of post trial motions, this nominal value case lives on with no immediate end in sight.