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May 2016

This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

Superior Court of Pennsylvania Again Refuses to Enforce Arbitration Agreement as to Wrongful Death and Survival Claims Involving Claims of Nursing Home Negligence

The Superior Court of Pennsylvania has reaffirmed that an arbitration agreement executed by a decedent’s spouse is not binding on wrongful death beneficiaries.  In Brosius v. HCR Manorcare, LLC, 2016 WL 1625790 (Pa. Super. April 25, 2016), William Brosius died while a resident at a Manor Care facility following his admission to recover from surgery to repair a broken right femur.  The broken femur resulted from a ladder fall.  Brosius’ wife signed an arbitration agreement with Manor Care, which included a requirement that claims of malpractice against Manor Care be submitted to arbitration.

Brosius’ wife, as executrix of the estate of Brosius, filed a complaint alleging wrongful death and survival claims.  She further alleged that, due to the negligence of Manor Care, Brosius suffered a Stage III sacral ulcer, pneumonia, urinary tract infections, sepsis, C-Diff, dehydration, and malnutrition, which caused Brosius’ death.

Manor Care filed preliminary objections to the complaint seeking to have the wrongful death and survival claims compelled to arbitration.  This means that rather than have a jury decide whether Manor Care was negligent and, if so, the amount of damages to award on the wrongful death and survival claims, an impartial third-party would be the one to decide negligence and damages.

The trial court denied the preliminary objection citing the constitutional right of wrongful death beneficiaries to a jury trial and Pennsylvania’s interest in litigating wrongful death and survival claims together.

The Superior Court of Pennsylvania found the trial court did not err and that its recent decisions (Tuomi v. Extendicare, Inc., 119 A.3d 1030 (Pa. Super. 2015), Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2015), and Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015)) directly controlled the appeal.

In sum, if you have a loved one that passes away due to the negligence of a nursing home and the nursing home seeks to have claims of negligence arbitrated, you do not need to give in to to the nursing home.  Rather, the Superior Court of Pennsylvania has made clear that the claims can proceed before a jury.


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Adult Children and Wrongful Death Proceeds

In Pennsylvania, if you are an adult child and lose a parent due to an accidental or wrongful death, you need to show that you suffered a pecuniary loss in order to be a wrongful death beneficiary.

There is no requirement that the adult child has to live at home with the parent in order to recover wrongful death proceeds.  But, as stated above, the adult child must prove a pecuniary loss.  Pecuniary loss can be established by proving gifts, financial benefits, support, and services to the adult child with such frequency that it is reasonably certain they would continue had the parent not died due to an accidental or wrongful death.

As I have previously discussed in my blog postings, there is a difference between a wrongful death action and a survival action.  The survival action, under 42 Pa. C.S. Section 8302, is brought on behalf of the decedent’s estate to benefit the estate.  It involves claims the decedent could have brought during his or her lifetime.  The distribution of any damages recovered in a survival action go through the estate and are distributed pursuant to the decedent’s will, or if no will exists, then the damages are distributed pursuant to Pennsylvania’s intestacy statutes, 20 Pa. C.S. § 2101 et al.

The wrongful death action is different.  Pursuant to 42 Pa. C.S. Section 8301, only certain designated beneficiaries may recover for personal damages resulting from the decedent’s wrongful or accidental death.  Children of the deceased is one category of potential beneficiaries that is included in the wrongful death statute.  But, the Supreme Court of Pennsylvania has stated that for a wrongful death beneficiary to recover, they must suffer a pecuniary loss.  See Gaydos v. Domabyl, 152 A. 549, 551-552 (Pa. 1990).

Recently, the Superior Court of Pennsylvania addressed the issue of adult children as wrongful death beneficiaries.  In Campbell v. A.O. Smith Corp., 2016 WL 1625766 (Pa. Super. Apr. 25, 2016), the court found that the Court of Common Pleas of Allegheny County did not err in finding that the adult children of a decedent were not wrongful death beneficiaries.  In Campbell, the decedent developed mesothelioma and sued over two dozen companies alleging exposure to asbestos.  The decedent died during the pending lawsuit and the complaint was amended to include a wrongful death action.  The decedent died with a will and left all of his estate to his second wife, despite having five adult children still living from his first marriage.  The second wife pursued the wrongful death and survival actions.

Eventually, the second wife settled with the defendants.  She filed a petition to have the settlements approved and to allocate the settlement proceeds between the wrongful death and survival action.  The petition also sought to determine whether the adult children qualified as wrongful death beneficiaries or if the second wife was the only beneficiary.

The trial found that none of the adult children proved a pecuniary loss and that the second wife was the only wrongful death beneficiary.  Specifically, the trial court found the decedent did not provide his adult children with “financial support, gifts, services, or any kind of pecuniary advantage with any kind of frequency.”  Campbell at *6.  Based on the evidence in the appellate record, the Superior Court concluded the trial court did not err.

Thus, although you might lose a parent due to a wrongful or accidental death, you need to be aware that in order to recover as a wrongful death beneficiary you must show a pecuniary loss.


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Accidental Death of Towboat Engineer on Monongahela River

The captains, pilots, engineers, deckhands, cooks etc. that work on the rivers are hardworking and dedicated to their jobs trying to earn a living for their families.  As such, it is sad when you hear that one of those hardworking mariners is accidentally killed on the river.

Unfortunately, according to local media reports in Pittsburgh, Pennsylvania, on May 11, 2016, two young men fishing on the Monongahela River near the Speers Bridge, which crosses the Monongahela River running between , Speers, Washington County, Pennsylvania, and North Belle Vernon, Westmoreland County, Pennsylvania, found the body of Jace Edward Sayre.

Jace Edward Sayre, who was from Chester, Hancock County, West Virginia, worked as an engineer on a towboat for Murray American Transportation, Inc.  See Workboat.com article “Body of missing barge worker pulled from PA river”    Murray American Transportation, Inc. is a subsidiary of Murray Energy Corporation (a coal mining company), which is based in St. Clairsville, Ohio.

Apparently, Sayre was reported missing earlier in the day by his coworkers on the towboat and could not be found after a search of the Monongahela River.

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Another Large Verdict in a Talcum Powder/Ovarian Cancer Case

Two weeks ago, I reported on a  $72 million jury verdict in which the jury found that Johnson & Johnson’s talcum powder caused a woman’s ovarian cancer, which she unfortunately passed away from prior to trial.  This time after a three-week trial, again in Missouri, another jury has found Johnson & Johnson’s talcum powder products used for feminine hygiene caused a South Dakota woman’s ovarian cancer.  See  Johnson & Johnson ordered to pay $55 mln in talc-powder trial

Plaintiff, Gloria Ristesund, whose cancer is in remission, argued at trial that she used the products, containing talcum, on her genitals for decades and it caused her ovarian cancer and the related need for a hysterectomy and other surgeries.  The jury agreed with Ristesund and awarded her $55 million in damages, which included $5 million for compensatory damages and $50 million in punitive damages.  Punitive damages are meant to punish a defendant to deter them from engaging in the same conduct in the future.

According to an article from Reuters by Jessica Dye, Johnson & Johnson plans to appeal the verdict.  See  Johnson & Johnson ordered to pay $55 mln in talc-powder trial

As I mentioned in the prior post, there are numerous lawsuits that have been filed across the United States claiming a link between cancer and talcum powder.  Based on the recent verdicts, it appears the number of lawsuits alleging a link between cancer and talcum powder will continue to grow.


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