Superior Court Holds That Notes Created by Investigator Retained by Attorney Are Not Protected From Discovery

In its recent decision in the case of McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017 (Pa. Super. June 7, 2018 Panella, J., Olson, J., and Stevens, P.J.E.) (Op. by Panella, J.),  the Pennsylvania Superior Court addressed the following two discovery issues:

1.         Are notes and memoranda of witness interviews by a private investigator, acting at the express direction of defense counsel, protected by the attorney work-product doctrine, as defined in Pennsylvania Rules of Civil Procedure  No. 4003.3, to the same extent as if the interviews were conducted by counsel, and

2.         Whether the defense should be estopped from relying upon the attorney work-product doctrine because it pursued disclosure of the identical materials from the claimant’s attorney. 

Pennsylvania Superior Court ultimately ruled that, when an investigator is hired expressly by the attorney of the Defendant, then the investigator’s notes of witness interviews are not privileged or protected from discovery even though the investigator was acting at the express direction of the attorney.   In its decision, the court noted that Pa.R.C.P. 4003.3 sets different restrictions in terms of production of material prepared by a party’s attorney as compared to material prepared by a party’s representative.   The court noted that there is a higher bar of protection in relation to the discovery of the work product of an attorney.  

In contrast, as to materials produced by any other representative of a party, Rule 4003.3 only prohibits the disclosure of the representative’s mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.  

Here, the court found that the work product doctrine under Pennsylvania Rules of Civil Procedure  4003.3 could not be used to preclude the disclosure of notes and summaries written by an investigator as opposed to by the party’s attorney.   The court rejected the notion that the notes and memoranda completed by a private investigator acting at the expressed direction of counsel, are protected by the attorney work product doctrine to the same extent as if the documents were drafted by counsel.   The court stated that to accept such an argument would be an impermissible expansion of the language of Pa.R.C.P. 4003.3.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh law firm of Thomas, Thomas & Hafer for bringing this case to my attention.

TORT TALK PRACTICE TIP

A GOOD WAY TO BEGIN A DEPOSITION

Oftentimes, attorneys may dive into a deposition without securing basic background information to start a depositions.  There have even been depositions completed where an attorney has not even asked the deponent to state their name.

A good way to being a deposition, even before you introduce yourself or lay out the ground rules for the deposition, is to start by asking the person's name, address, and basic background information so that you have this information on the first page of the deposition transcript for your easy reference.

A suggested way to start may be, as follows:

Good morning, can you please start by stating your full name and address?

What is your date of birth?

How old are you as you sit here today?

It is my understanding that you were ____ years old back when this accident occurred?

[Ask to go off the record, and then ask for the deponent's social security number]


Once you have the above basic information, you can then review with the witness the basic ground rules of a deposition to help the proceeding flow smoothly from that point on.

Summary Judgment Granted in Products Case Based Upon Intended User Analysis

In a decision in the case of Hysick v. Razor United States, No. 1:2015-CV-00745 (M.D. Pa. Jan. 9, 2018 Jones, J.), the court granted in part and denied in part a summary judgment motion in a product’s liability case.  

The court reaffirmed the rule of law that strict liability is imposed only where the product is used by an intended user.

Here, where the Defendant manufacturer’s owner’s manual and warning stated that the product was not for use by children under 12, a 6 year old injured party was deemed not to be an intended user of the product as a matter of law.

The court otherwise held that a manufacturer cannot be held liable for failing to design a product that was safe for use by any reasonably foreseeable user.   Rather, only intended users are relevant to the strict liability analysis. 

The court additionally noted that no reasonable consumer would believe that a 6 year old was an intended user of a product that was fully equipped with explicit age recommendations for use of the product by much older children.  

The court otherwise did note that a claim for breach of warranty extend beyond the intended users of a product.   The court also noted that foreseeable unintended users might have negligence claims to present as well.

I do not have a copy of this case to provide.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  

ARTICLE: A MID-YEAR TUNEUP

As we are in the middle of the year, thought it would be a good time to re-run my article "A Mid-Year Tuneup: Ten Tips to Improve Your Practice and Reduce Your Stress." 

This article first appeared in the Pennsylvania Law Weekly about 10 years ago on June 30, 2008 and is republished here with permission.  The tips appear to be standing the test of time.

Here is a LINK to the article for your reading enjoyment.

Thanks for reading Tort Talk,

Dan Cummins

Judge Amesbury of Luzerne County Orders Severance and Stay of Post-Koken Bad Faith Claim

In the post-Koken case of Denisco v. USAA, No. 2248-CV-2018 (C.P. Luz. Co. May 21, 2018 Amesbury, J.), the court granted a UIM carrier’s Motion to Sever and Stay a Plaintiffs’ Bad Faith Claims from the Plaintiffs’ Breach of Contract Claims.  

Judge William H. Amesbury
Luzerne County

The court further ordered that discovery and trial on the breach of contract claims would proceed separately and conclude before the commencement of any discovery with respect to the separate bad faith claims.  

 The court additional ordered that, upon completion or settlement of the breach of contract claims, a scheduling conference would be held to discuss a schedule for discovery, dispositive motions, and trial with respect to the bad faith claims.

Anyone wishing to review a copy of this Court Order without Opinion may click this LINK.

I send thanks to Attorney Lindsay B. Andreuzzi and Attorney Marni Berger of the Philadelphia office of Post & Schell for bringing this Order to my attention.

Cross Motions for Summary Judgment Denied in a Federal Court UIM Bad Faith Case

In the case of Parisi v. State Farm Mut. Auto. Ins. Co., No. 16-179 (W.D. Pa. May 7, 2018 Gibson, J.), the court denied cross-motions for summary judgment in a UIM bad faith case given the court’s finding of genuine issues of material fact with respect to the claims handling and settlement negotiations in the case. 

According to the Opinion, this UIM action was commenced after the insured allegedly suffered a serious head injury in a motor vehicle accident.

The UIM claims-handling process covered a time period of approximately 2 ½ years.  

According to the Opinion, the insured demanding the payment of the $100,000.00 policy limits and the carrier’s initial settlement offer was $17,000.00.   The carrier later ended up paying the policy limits on the claim.  

The insured filed a bad faith suit in which it was alleged that there was a bad faith delay in the payment of the UIM benefits.  

After both parties moved for summary judgment on the bad faith issues, the court denied both motions after finding genuine issues of material fact.  

The court in Parisi found that the insured’s attorney did not demand settlement of the claim for nearly two (2) years after the filing and, once he did, the evidence revealed that the carrier acted promptly in response.  

The court additionally noted that a jury could conclude that the initial offer by the carrier was reasonable given the evidence presented at that stage of the proceedings.   The court also pointed to testimony in the record indicating that head injuries are particularly difficult to evaluate.   Based on at least these reasons, the court denied the Plaintiff’s Motion for Summary Judgment on the bad faith issues.

As noted, the court additionally denied the carrier’s Motion for Summary Judgment on the bad faith claims.   In this regard, the court found that a jury could find that there was an unreasonable delay in the payment of the benefits and that the initial offer by the carrier was an unreasonable low ball offer.   The court also noted that the record revealed that a jury could find that the carrier failed to conduct a meaningful investigation or attempt settlement between the time of the filing and the time when the insured’s attorney demanded settlement almost two (2) years later.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris, and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.  

Release Language in Ski Waiver Form Upheld as Supporting Summary Judgment

In the case of Kibler v. Blue Knob Recreation, Inc., No. 903 WDA 2017 (Pa. Super. April 19, 2018 Ford Elliot, P.J.E., Bowes, J.; Stabile, J., concurring) (Op. by Ford Elliot, P.J.E.), the court affirmed the trial court’s entry of summary judgment after finding that the Defendant’s release or waiver form was valid and enforceable in a downhill skiing accident case.  

The Plaintiff attempted to get around the waiver form he signed by asserting that his accident was caused when the Plaintiff attempted to ski over an area where there were wheel ruts left in the snow by an ATV used by a resort employee.

The Superior Court affirmed the trial court’s finding that wheel ruts left by a vehicle operated by the Defendant’s employees are an inherent risk of downhill skiing for which the Defendant ski resort had no duty to protect skiers.   The court additionally noted that tire tracks in snow do not amount to evidence of reckless conduct on the part of the ski resort so as to get around the terms of the release signed by the Plaintiff. 

Relative to the waiver signed by the Plaintiff, the court found that the release terms did not contravene law or public policy.  

The court additionally reaffirmed the well-settled principle of law that the alleged failure to read a release is not a defense.  

Anyone wishing to review a copy of this decision may click HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.