Trial Judge Criticized for Tossing Wrongful-Death Suit

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The Pennsylvania Superior Court has criticized a Montgomery County trial judge for tossing out a protracted wrongful-death and survival suit after the plaintiff moved to delay the trial due to illness.

In an unpublished opinion in Jones v. Mercy Suburban Hospital, a three-judge panel unanimously ruled to reverse Montgomery County Court of Common Pleas Senior Judge Arthur R. Tilson's order dismissing the case and remanded the matter for trial.

Judge Anne E. Lazarus, writing for the majority, said that even though the case was more than a decade old and trial had already been delayed several times, Tilson abused his discretion by dismissing the suit when there was no evidence that delaying the trial again would prejudice the defendant hospital and doctors.

Lazarus called Tilson's order "troubling" and said it "placed justice second to arbitrary compliance with procedural rules."

"Upon review of the record, it is clear that there were ample delays on both sides," Lazarus said. "However, it does not appear that the doctors or hospital have suffered prejudice sufficient to warrant the severe sanction of dismissal. Further, in his Rule 1925(a) opinion, Judge Tilson provided little explanation of what prejudice, if any, he felt the doctors and hospital suffered. While we acknowledge that delays can be costly and inconvenient for both the courts and the parties, they are not a reason to deprive either party of its day in court."

Lazarus was joined by Judge John T. Bender and Senior Judge James J. Fitzgerald III.

But Fitzgerald penned a concurring opinion to note that he was concurring in the result "with the utmost reluctance."

"I greatly sympathize with the trial court's apparent frustration," Fitzgerald said. "Given the nature of the claims, the age of this case is staggering."

Fitzgerald said he was nevertheless constrained to agree with the majority but noted that trial should commence as soon as possible.

In Jones, according to Lazarus, plaintiff Donna Jones, the executor of decedent Marie C. Mulgrew's estate, filed suit against defendants Mercy Suburban Hospital, Dr. Lee Konecke and Dr. Hugh Lipshutz in March 2002.

After several years of discovery, trial was originally scheduled for October 2012, but Jones' attorney sought a continuance due to his wife's illness and trial was rescheduled for April 8, 2013, Lazarus said.

But on March 11, 2013, Jones' counsel filed a motion to adjourn trial, this time citing Jones' health issues and the unavailability of the plaintiff's experts, according to Lazarus.

Jones' counsel said in the motion that his client would not be able to proceed with trial for another 60 to 90 days, Lazarus said.

Tilson, however, denied the motion, according to Lazarus.

On April 8, 2013, the day trial was scheduled to start, Jones' counsel again informed Tilson that his client was ill and unable to appear, but counsel for the defense opposed another continuance, Lazarus said.

Tilson dismissed the case, saying, "'This is one of the oldest cases in Montgomery County right now and it could have been brought to fruition earlier and it wasn't. ... I think it's unfair to the doctors. ... I feel sorry for the family. So, because [Jones is] not prepared to go forward, this case is dismissed,'" according to Lazarus.

In his Rule 1925(a) opinion, Tilson said he thought the motion to adjourn was simply a delay tactic, according to Lazarus.

But Lazarus said Jones' motion to adjourn included a certification from her treating physician stating that she was too ill to appear at trial for 60 to 90 days and therefore met the requirements for granting a continuance under Pa.R.C.P. 216.

Lazarus called it "troubling that Judge Tilson dismissed Jones' case because it was old."

"This court has repeatedly held that a court's legitimate interest in controlling its docket should not unnecessarily infringe upon a litigant's right to a trial," Lazarus said, citing the state Supreme Court's 1972 ruling in Budget Laundry v. Munter, in which it held that "'courts must not overreach in their zeal to move cases to such an extent as to allow for no deviations from strict and literal adherence to policies justifiably laid down to improve the condition of the courts.'"

Lazarus also said there was no evidence as to how delaying the trial prejudiced the defense.

The doctors argued that delaying trial in a case that's been going on for so long creates more potential for memories to fade and evidence to get spoiled. In addition, they said they have to note the action pending against them on applications for insurance and privileges, according to Lazarus.

"This generalized argument fails to demonstrate any truly significant prejudice," Lazarus said.

But Fitzgerald said that, while he concurred in the result, he might be inclined to change his mind if trial doesn't commence soon.

"I find it inexplicable that Jones or her counsel has not retained additional counsel given the long history of this case and her counsel's numerous issues," Fitzgerald said. "But for the procedural posture, as well as my inability to fault Jones for her illnesses and the apparent unforeseen circumstances of her experts, I would have been inclined to affirm the order below."

Counsel for Jones, Ronald S. Pollack of PollackSteinberg in Feasterville, Pa., said he felt the Superior Court "got it right."

"Yes, this case has had a long and arduous history, but that's as a result of all sides, and the plaintiff did everything in her power to comply with the court rules," Pollack said.

Counsel for Mercy Suburban, William H. Pugh V of Kane, Pugh, Knoell, Troy & Kramer in Norristown, Pa., could not be reached for comment.

Counsel for the doctors, Denise L. Juliana of Young & McGilvery in King of Prussia, Pa., also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 10-page opinion in Jones v. Mercy Suburban Hospital, PICS No. 14-0139, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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