A convoluted personal injury case over a Megabus accident has quietly settled, and at the same time a defense attorney castigated during discovery was successful in striking the judge's order that took him and his client to task.
The case of Burks v. Tomaszewski, in which a jury was discharged between the compensatory and punitive damages portions of the trial, has settled for undisclosed terms, according to the docket. The settlement would appear to resolve several outstanding post-trial motions in the case, including whether a dismissal of the jury in the midst of a trifurcated trial required a new trial from the start or just a trial solely on the punitive damages portion.
On the same date the settlement was docketed, Philadelphia Court of Common Pleas Judge Mary Colins also docketed her order granting defendant Megabus and defense attorney Theodore Schaer's motion to withdraw a motion for an earlier judge in the case to recuse. It was the ruling on the recusal motion by that earlier judge, Frederica A. Massiah-Jackson, that resulted in a lengthy footnote questioning Schaer's handling of certain discovery issues.
Massiah-Jackson did ultimately grant Schaer and Megabus' request for her recusal from the case, but not before saying the motion was "baseless and brought to deflect attention from the outrageous misconduct of Megabus and their counsel."
In the footnote to her order, Massiah-Jackson referenced information she gleaned from an in camera review of documents Megabus asserted were privileged to support her finding that relevant information was withheld from the plaintiff and jury.
"This court finds that the conduct of counsel for Megabus, as described above, was outrageous and prejudiced the administration of justice," Massiah-Jackson had said.
Colins was brought in to replace Massiah-Jackson and in June denied a request by Megabus and Schaer to either strike Massiah-Jackson's order completely or seal it. They had argued Massiah-Jackson's order was inaccurate and revealed attorney-client privileged information.
Colins said in June it was a balancing test to determine whether to seal a judicial record. She said she couldn't find any case law about sealing a judge's order, but said she would treat the order as a piece of the record. Colins said there is a constitutional presumption of openness and a strong burden on the party seeking to seal a document. A party must show a strong governmental interest or ongoing harm, she said.
In terms of striking the footnote from Massiah-Jackson's order altogether, Colins had said she would review the issues Massiah-Jackson raised in the footnote as part of a review of post-trial motions in the case. Colins had declined to strike any portions of the order or footnote. That changed around the same time the parties settled.
According to the docket in Burks, Megabus, through its attorneys at Schaer's firm, Zarwin Baum DeVito Kaplan Schaer Toddy, filed August 6 a motion to withdraw its recusal motion filed with Massiah-Jackson. As part of its motion to withdraw, they also again requested Massiah-Jackson's order responding to the recusal motion be stricken. It would appear that motion was part of the settlement agreement, given the motion starts with "upon agreement of all parties." Megabus requests its recusal motion be withdrawn and Massiah-Jackson's order be stricken.
On August 6, plaintiff Candice Burks' attorneys at Kline & Specter filed a praecipe to withdraw their petition to hold Megabus and its counsel in contempt, according to the docket entry for the filing posted August 7.
Colins' August 6 order, docketed the following day, granted Megabus' motion to withdraw its motion for recusal.
"The order dated May 21, 2013, entered by Judge Massiah-Jackson in response to the motion for recusal is hereby stricken," Colins additionally ruled, according to the order.
When contacted, Thomas R. Kline of Kline & Specter said he was "pleased that this protracted and difficult lawsuit is concluded." Schaer said in an emailed statement that "we are satisfied that the case was resolved and that the court's order and footnote were stricken." Barbara Magen of Post & Schell, who represented Megabus on appellate issues, did not return a call for comment.
A Winding Road to Settlement
The case stems from a bus accident in which a Megabus traveling from Philadelphia to Toronto ran into a railroad bridge near Syracuse, N.Y., killing four people and injuring many others, including Burks.
While the case was split into three parts, the jury only reached a verdict in the first phase regarding compensatory damages and negligence, finding for Burks in the amount of $677,000 on April 9, according to court documents. On the first day of deliberations regarding whether defendant driver John Tomaszewski was reckless in the accident, the jurors were unable to reach a decision. The next day, two of the jurors did not return for deliberations. The parties in the case ultimately agreed to discharge the jury.
Burks entered a stipulation with the defendants before trial to remove any request for punitive damages against the driver, and then ultimately against Megabus.
Massiah-Jackson allowed the case to reach the recklessness phase despite the stipulation based on a motion by the plaintiffs that Megabus had not turned over thousands of documents ordered to be produced six months prior to the March trial.
Megabus turned over 3,000 pages of documents at the start of the trial and based on Massiah-Jackson's preliminary in camera review of those documents, she ruled the reckless and punitive phase of the trial could continue, finding, "'I have a reasonable belief that … no reasonable attorney would have entered into that stipulation if something that I saw had been known,'" according to Burks' response to the recusal motion.
According to the footnote of her order, Massiah-Jackson said Megabus' attorneys interviewed Tomaszewski the day after the accident and learned why the driver did not see the flashing lights or warning signs alerting drivers to the low bridge. According to the order, Megabus' counsel's notes say "'it is believed he was "looking" at his personal GPS.'" Massiah-Jackson said that, notwithstanding this admission, statements were made to the media, police, during Tomaszewski's deposition and at trial that he was not looking at the GPS, but rather listening to it.
Massiah-Jackson said it was clear Zarwin Baum and Schaer had the document in their possession.
"Nonetheless, Mr. Schaer kept his silence and allowed a distortion of the facts to be maintained" during Tomaszewski's deposition, the judge said.
She said that "concealment" allowed Tomaszewski's attorney to tell the jury the driver wasn't distracted.
According to a transcript of Schaer's opening arguments in the case, Schaer told the jury Tomaszewski pulled out a personal GPS against Megabus policy.
"'While looking at his GPS, he wasn't paying attention to the roadway,'" Schaer told the jury, according to the transcript.
According to Megabus' response to Massiah-Jackson's order, Megabus alleged Massiah-Jackson took a "parting shot" in her footnote, which it argued was dicta given her recusal and should be stricken from the record.