A six-justice Pennsylvania Supreme Court, divided evenly along political lines, will hear two politically charged matters this week — one regarding the state’s controversial voter ID law and the other regarding its second review of the Pennsylvania Legislative Reapportionment Commission’s redistricting efforts.

The voter ID law, which withstood a constitutional attack before a Commonwealth Court judge last month, heads to the justices as proponents have called it a valid measure against voter fraud. Its opponents, on the other hand, claim the law is a thinly veiled Republican effort to disenfranchise poor and minority voters.

The closely-watched matters highlight a busy three-day session for the justices starting today in Philadelphia. Among other cases of interest are a legal malpractice suit against Margolis Edelstein, an insurance case asking whether emotional distress absent physical injury can be covered under an insurance policy’s definition of “bodily injury,” an appeal dealing solely with whether punitive damages should have been awarded in a drug products liability case, and two cases over whether juveniles can be subjected to mandatory life sentences without the possibility of parole.

Take Two For Reapportionment

For the legislative reapportionment challenges, which go before the court on Thursday as a block of 13 individual challenges, the arguments mark the second time the 2011 maps have gone before the high court this year. In February, the court explained its unprecedented decision to toss the commission’s first set of maps in an 87-page opinion from Chief Justice Ronald D. Castille, who switched party lines to write for the otherwise-Democratic majority.

In Castille’s landmark opinion in Holt v. Legislative Reapportionment Commission, which was argued in January, the chief justice said petitioner Amanda Holt’s challenge to the commission’s final House of Representatives and Senate maps “overwhelmingly” showed the commission divided too many political subdivisions.

Holt was one of several petitioners to first challenge the district.

Another was commission member and Senate Minority Leader Jay Costa, D-Allegheny.

Castille said the petitioners seeking to throw out the maps had made a “concrete showing” that the commission’s plan ran contrary to law, demonstrating the commission split counties, municipalities and wards when it was not “absolutely necessary.”

That is the standard the commission, a five-member team of which the majority is Republican, will argue it has accomplished on remand. The challengers will renew arguments that the commission again divided districts where it was not absolutely necessary.

The 4-3 court’s majority opinion did not, however, require the commission to adopt Holt’s plan, nor did it instruct the body, specifically, how it should draw the new lines.

The state’s primary elections ran along maps drawn by a former commission in 2001.

The reapportionment challenges go before a court that lost one of its Republican tiebreakers in Justice Joan Orie Melvin, who remains suspended without pay on criminal charges. Orie Melvin wrote a dissenting opinion when the court initially rejected the maps in February.

Voter ID on the Fast Track

Orie Melvin’s suspension could also affect the court’s decision on the state’s voter ID law, which Commonwealth Court Judge Robert Simpson upheld last month following a constitutional challenge.

Simpson denied the petitioners’ application for a preliminary injunction, making his ruling even as the state government lawyers stipulated that they could not offer any evidence that in-person voter fraud has occurred in Pennsylvania. Further, the petitioners presented the comments of House Republican Majority Leader Mike Turzai that passage of the voter ID law “is going to allow [former Massachusetts] Governor [Mitt] Romney to win the state of Pennsylvania.”

That ruling came August 15 and the case heads to the justices less than a month later.

Simpson, in a 70-page opinion, pointed out that voters could bring constitutional challenges to the law as the law applies to them in the future. The petitioners proved an as-applied case, he added, but they brought a facial challenge under the state constitution.

Can Emotional Distress Be Bodily Injury?

On a busy Tuesday for the Supreme Court, the justices will hear arguments in Lipsky v. State Farm Mutual Automobile Insurance over whether emotional distress without physical injury can be covered under an automobile insurance policy’s definition of bodily injury.

The policy at issue in the case provides coverage for bodily injury defined as “bodily injury to a person and sickness, disease or death which results from it.”

According to the lower court’s opinion in Lipsky, a parent and siblings who witnessed a family member struck by a car and killed are seeking damages under the bodily injury portion of the policy insuring the car involved. In a September 2011 opinion, the Pennsylvania Superior Court ruled the family could collect damages under the policy because witnessing a family member killed by a car is a distinct bodily injury covered under the policy’s definition of “bodily injury.”

The high court granted State Farm’s appeal, limited to two issues. The court will review whether the family’s damages do in fact meet the policy’s bodily injury definition. If so, the court will also look at whether the family members’ claims are subject to the “each accident” liability limits rather than the “each person” limits despite the fact that their emotional distress resulted from the bodily injury suffered by their family member and the policy includes in the “each person” limits “all injury and damages to others resulting from this bodily injury.”

The split three-judge panel of the Superior Court had ruled that the two brothers and the father of victim Benjamin Lipsky each had their own bodily injury claim for a potential maximum of $100,000 rather than having a single claim based on the victim’s injuries.

The panel upheld a Philadelphia trial court’s ruling that the definition of “bodily injury” in State Farm’s policy agreement was ambiguous enough to allow for negligent infliction of emotional distress (NIED) to be included as a bodily injury, but the court did so on slightly different grounds.

The Superior Court found the definition wasn’t ambiguous, but rather was simply broad enough to include emotional harm without physical injury, according to the memorandum opinion written by President Judge Correale Stevens.

Legal Malpractice After Settlement?

The justices were also set to weigh in on a legal malpractice suit against Margolis Edelstein, stemming from a case in which one of Margolis’ clients’ insurers paid a $5 million policy limit before trial but was then found not liable by a jury.

In Ingerman Affordable Housing v. Margolis Edelstein, Margolis attorney Walter J. Timby III represented a low-income housing company and the similarly owned construction company it uses to build properties.

The case stems from a toddler’s fall from a screened window at his low-income housing unit in Philadelphia. In the ensuing litigation, Timby represented both the housing company — Ingerman Affordable Housing — and its construction component — Ingerman Construction — which are insured under separate “towers” by different insurance companies.

Ingerman Affordable Housing was the first to enter into a partial settlement, through its insurer — TIG Insurance Co. — leaving Ingerman Construction exposed.

Ingerman Construction then settled through its insurer, Ohio Casualty, for the full limit of its excess policy — $5 million.

The case proceeded to trial because there were remaining cross claims, but a jury found that Ingerman Affordable Housing was alone liable to the tune of $7 million. The jury found in favor of Ingerman Construction.

Ohio Casualty, as assignee of Ingerman Construction’s claim, followed with a legal malpractice action against Margolis, claiming that Timby, the attorney, was presented with a conflict of interest by representing all of the Ingerman entities.

The insurer argued it would not have paid the $5 million policy limit had Timby not been in the conflicted position of representing all of the Ingerman entities, which faced competing legal postures.

In other words, it was not an adverse verdict that constituted the legal malpractice, but a conflict of interest that led to an adverse settlement. 
So far, a Philadelphia judge and a split panel of the Superior Court have found in favor of Margolis, noting the absence of damages attributable to the Margolis defendants.

The justices are set to hear that case today.

HRT Punitive Damages

Also scheduled Tuesday are arguments from Pfizer that $8.6 million in punitive damages should not have been awarded in a hormone-replacement therapy case without evidence that the drugmaker’s subsidiary misled federal regulators or knew the dangers of the drug were greater than consumers had been warned of.

The Supreme Court granted allocatur in the case of Daniel v. Wyeth Pharmaceuticals late last year on one issue: whether punitive damages should have been allowed in a drug products liability case for a drug that was reviewed by the federal Food and Drug Administration. There was no evidence, the defendant says, that it misled the FDA about the risk of the drug by hiding scientific facts and data.

Wyeth is now owned by New York-based Pfizer.

Plaintiff Mary Daniel and her husband, Thomas Daniel, alleged that her hormone-dependent breast cancer was promoted by her use of Wyeth’s Prempro and that the warnings for Prempro failed to adequately inform her of the risk of breast cancer incurred by taking the drug.

Pfizer argues that punitive damages in the case should not be awarded because Wyeth did not act in subjective appreciation that the risk of using its HRT drug was actually greater than what was acknowledged in its HRT labeling. Pfizer also argues that Wyeth did not act in conscious disregard of that alleged risk.

The state Superior Court panel that upheld the punitive damages award said there was sufficient evidence to permit the jury to conclude Wyeth acted intentionally to not perform adequate tests of the risk of breast cancer from using Prempro because it did not want to lose drug sales.

Mandatory Life Sentences For Juveniles

Wednesday’s scheduled headliner is the argument over whether the U.S. Supreme Court’s recent decision in Miller v. Alabama banning mandatory life sentences without parole for minors applies retroactively to a Pennsylvania prisoner who has otherwise exhausted his appeals.

The court agreed to hear on an expedited basis the case of Commonwealth v. Cunningham, involving the 1999 arrest for murder and robbery of Ian Cunningham, who was 17 at the time. He was convicted of those crimes in 2003 and sentenced to life in prison.

Cunningham’s allocatur request has been pending for some time. According to the docket in the case, the court reserved judgment on the petition for appeal in October 2009 until it ruled in Commonwealth v. Batts. The Batts case was also on hold, however, while the court awaited the decision in Miller, which came down from the nation’s highest court in June.

Last month, nearly three years after granting allocatur in the case, the Pennsylvania Supreme Court scheduled Batts for oral argument. Both arguments are set to take place Wednesday.

The question taken up on appeal in Cunningham is whether the trial court erred in imposing a life sentence without parole for the crime of second-degree murder. The Supreme Court directed the parties to address whether the U.S. Supreme Court’s June ruling in Miller retroactively applies to an inmate serving such a sentence when he or she has exhausted his or her direct appeal rights and is proceeding under the Post-Conviction Relief Act.

The issue has been frequently addressed in Pennsylvania appellate courtrooms this year.

In the cases of twin brothers sentenced to life without parole, the Superior Court recently ruled that such a mandatory sentence was unconstitutional. In two cases captioned Commonwealth v. Knox, the panels held that Pennsylvania law requiring sentences of life in prison for juveniles violated the Eighth Amendment of the U.S. Constitution and Article 1, Section 13 of the Pennsylvania Constitution, both of which bar cruel and unusual punishment.

Tardy MDJ

Also on the justices’ docket is the case of a Lehigh County magisterial district judge whom the Court of Judicial Discipline removed from the bench after finding she told her staff she would not be coming to court 116 days over a two-year period. When she did come to court, the CJD found, she was habitually tardy.

The court only issued an order and not an opinion last October as to why former Magisterial District Judge Maryesther S. Merlo should be sanctioned with removal from the bench and a ban on ever serving in judicial office again.

Merlo, who is an attorney, was elected in 2004 as the MDJ for a district in Allentown, Lehigh County.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.