Panel: Recklessness Theory a New, Improper Addition
Judges Mary Jane Bowes, Judith Ference Olson, and Victor P. Stabile criticized the plaintiff’s tactics as a late-game shift in strategy that gave the defense no opportunity to properly prepare or respond.
“At the eleventh hour, appellee solicited the word ‘reckless’ from witnesses who could not be expected to understand the legal significance of that term,” the panel wrote. “The witnesses’ use of the word ‘reckless’… was of no legal significance until the trial court subsequently permitted appellee’s amended complaint.”
The panel found that raising a new theory of liability—recklessness—in the middle of trial violated due process principles and was procedurally improper under Pennsylvania law.
“We conclude that unfair surprise exists here, where a negligence plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time,” the court held.
Plaintiff Plans Further Appeal
Attorney Jamie J. Anzalone, who represents Vanston along with Kelly M. Ciravolo of Anzalone & Doyle Trial Lawyers, told Law360 that they strongly disagreed with the ruling.
“We believe it is inconsistent with Pennsylvania law directly on point regarding this exact issue,” Anzalone said. “The trial court judge, now federal judge, Judge Julia K. Munley, authored a well-reasoned opinion consistent with Pennsylvania precedent on amendment of pleadings related to punitive damages. We will exercise every appellate right available to the plaintiff.”
