Thursday, May 28, 2015

Judge Mariani of Middle District of PA Explores Parameters of Discovery of Claims Files in Auto Bad Faith Claim

Judge Robert D. Mariani of the Federal Middle District Court of Pennsylvania ruled in Lane v. State Farm, No. 3-14-CV-01045 (M.D. Pa. May 18, 2015 Mariani, J.), that the mental impressions of the carrier’s claims professionals recorded after the Plaintiff’s Complaint was filed, as well as notes of the carrier's auto evaluation which referenced the carrier's defense attorneys' mental impressions, were considered privileged information and were, therefore, not discoverable.  Plaintiff's motion to compel was denied.

In this matter, the carrier produced redacted documents from the claims file along with a privilege log.  The Plaintiff filed a motion seeking an Order requiring that certain redacted portions of State Farm's privilege log to be revealed.  The Plaintiff claimed, in part, that could not confirm whether the portions redacted by the carrier did constitute privileged information.

Judge Robert D. Mariani
M.D. Pa.
The court ruled that the redacted portions did not have to be produced because the privileged nature of the documents were adequately described in the privilege log by defense counsel as an officer of the court.  For example, the redacted pages were marked as billing invoices for legal services or letters between the carrier and its defense counsel.

In ruling that the redacted portions need not be disclosed, the court noted that a hypothetical suggestion that representations made by a duly licensed attorney and officer of this court could be found to be utter fabrications is insufficient to carry plaintiff's burden in overcoming the privilege,.

The court also rejected the Plaintiff’s request for an in camera review of the redacted portions by the court to confirm the propriety of the redactions by defense counsel.

Judge Mariani otherwise provided instruction in his decision on the extent to which the post-Complaint mental impressions of a claims representative may be discoverable in a bad faith claim.  Concisely, Judge Mariani held that the mere existence of a bad faith claim in a Complaint “does not make otherwise privileged information per se discoverable.” 

Rather, a party seeking such discovery must meet its burden of persuading the court that such documents are not protected from discovery under the particular facts of the case.

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

Judge Mark of Monroe County Grants Summary Judgment in Slip and Fall Case

In a recent Monroe County decision in the case of Smith v. Chelsea Pocono Fin. LLC, PICS Case No. 15-0602 (C.P. Monroe Dec. 29, 2015 Mark, J.), Judge Jonathan Mark of the Monroe County Court of Common Pleas granted summary judgment in favor of a landowner Defendant on the basis that the Plaintiff had failed to establish any evidence of actual or constructive notice of that Defendant of any defective condition on the stairway where the Plaintiff allegedly fell and was injured.

According to a summary of the Opinion, the Plaintiff was injured while at The Crossings Premium Outlets in the Poconos. The Plaintiff was walking down a stairwell and slipped and fell, allegedly sustaining injuries.

While the Plaintiff did not know what caused her to fall, her eyewitness husband testified that the Plaintiff slipped on a french fry or a hamburger bun fragment on the steps.

Although the court found that the Plaintiff had presented evidence to establish a jury question as to the existence of a defective or dangerous condition of the stairwell, the court granted summary judgment after finding that the Plaintiff had not established that the Defendant had any actual or constructive notice of the condition that caused the fall.

More specifically, the court found nothing in the record to suggest that the condition on the steps was traceable to the Defendants or their agents, or that the Defendant otherwise had any actual or constructive notice of the condition.

The Plaintiff attempted to argue that the Defendant’s had actual notice because this type of defect occurred frequently on the premises.

This argument was rejected under the Restatement (Second) of Torts §344 as that Section, and cases related thereto, inferring actual notice under a recurring situation scenario. Judge Mark noted that those decisions came to such a finding on the basis of recurring events or conditions that had caused harm to invitees in the past in an obvious fashion.

In this Smith case, Judge Mark found that there was only an argument that the specific condition which allegedly caused the injury at issue had allegedly occurred generally in the past. Here, while there was evidence presented to show that food and other debris had been generally found on the property in the past, there was no allegation or proof that patrons slipping on food had become an epidemic on the premises.

The court also rejected the Plaintiff’s claim that the absence of any cleaning or maintenance records was sufficient to deny and otherwise properly supported Motion for Summary Judgment. The court rejected this argument as an effort by the Plaintiff to improperly reverse the burden of proof and place it upon the Defendant.

Lastly, the court also found that the Plaintiff had failed to offer any evidence as to how long the debris had been located on the steps, or that anyone had observed it prior to the Plaintiff’s incident so as to support an argument of constructive notice. The court also rejected the Plaintiff’s constructive notice argument on the basis that the debris/food on the step was crushed.

The court otherwise found that the Defendant had exercised reasonable precautionary steps to prevent accidents, including the placement of a trash can within ten (10) feet of the stairway and repeated checking of the area, specifically around restaurants. 

Copies of this case are available by calling the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 800-276-PICS and giving the above PICS Case Number and paying a small fee.

Tuesday, May 26, 2015

Preliminary Objections Against Allegations of Recklessness in Negligence Auto Accident Suit Sustained

In the recent decision in the case of Roma v. Finney, PICS Case No. 15-0641 (C.P. Northampton Co. Feb. 23, 2015 Beltrami, J.), the trial court sustained a Defendant’s Preliminary Objections in an automobile accident matter and ordered that the words “reckless,” “recklessness,” and “recklessly” be stricken from the Complaint. 

The court noted that this matter involved a negligence cause of action arising out of a rear-end motor vehicle accident.  In her Complaint, the Plaintiff alleged negligence and/or recklessness on the part of the Defendant caused the accident and injuries.   Notably, the Plaintiff did not request punitive damages in the Complaint.  

The Defendant filed Preliminary Objections in the nature of a Motion to Strike impertinent matter pursuant to Pa. R.C.P. 1028(a)(2).  

As there were no facts plead in the Complaint to support the objected to language, and given that no claim for punitive damages was pled, the court granted the Preliminary Objections as allegations of recklessness were deemed to be immaterial to proving a negligence cause of action.  

Anyone desiring a copy of this Opinion may click this LINK.

Source:  "Case Digests," Pennsylvania Law Weekly (April 28, 2015).

Wednesday, May 20, 2015

IME Expert May Rely Upon Another IME Report

In the case of Feld v. Primus Technologies Corp., No. 4:12-CV-01492, 2015 U.S. Dist. Lexis 55270 (M.D. Pa. April 28, 2015 Brann, J.), Judge Matthew W. Brann of the Middle District Federal Court of Pennsylvania relied upon Fed.R.E. 703 in ruling that Defendants in tort litigation may utilize independent medical examinations of the plaintiff prepared in separate worker’s compensation proceedings. 

The court denied a Plaintiff’s Motion in Limine in this regard reasoning that, even if such IME reports may be arguably biased, IME reports are the kind of records that a medical expert would legitimately rely upon, i.e, the records of other doctors.   

Judge Matthew W. Brann
Judge Brann did emphasize, however, that while an expert may rely on IME reports, the expert’s opinion testimony must still satisfy the usual evidentiary requirements, such as the hearsay rule, before the opinion may be admitted into evidence.

A copy of this decision by Judge Brann can be viewed online HERE.

I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  Please be sure to check out Attorney Beck’s excellent blog, The Drug and Device Law Blog HERE.

Tuesday, May 19, 2015

Transcript of Jury Instructions Secured From Dauphin Co. Post-Koken Trial That Ended in Mistrial

In yesterday's Tort Talk, the Post-Koken case of Oaks v. Erie Ins. Exch. and Austin was reviewed in which the Dauphin County court agreed to bifurcate a retrial of a Post-Koken case against both a tortfeasor Defendant driver and the UIM carrier after the jury, through questions presented to the court during their deliberations, indicated that they were looking at the issue of the tortfeasor's liability insurance coverage in violation of Pennsylvania law.  [Click HERE to review that Tort Talk post again and to access a link to the Order without Opinion].

Tort Talkers can click HERE to review the Jury Instructions utilized by the trial court in Oaks at the first trial which, as noted, ended in a mistrial when the jury began to focus on the issue of the tortfeasor's liability coverage.

A review of these jury instructions show just how difficult it can be to craft appropriate jury instructions in a Post-Koken trial involving both the tortfeasor Defendant driver and the UIM carrier Defendant.

Sunday, May 17, 2015

Dauphin County Court Reconsiders and Grants Post-Koken Severance Request after a Mistrial at First Consolidated Trial

In a recent Order without Opinion in the Post-Koken case of Oaks v. Erie Insurance Exchange and Austin, No. 2012 - CV - 3741 - CV (C.P. Dauphin Co. May 8, 2015 Bratton, J.) handed down after a mistrial in a matter, Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas granted the tortfeasor Defendant's Motion for Reconsideration of the court's prior denial of the tortfeasor's Motion to Sever the negligence claims asserted against him by the Plaintiff from the Plaintiff's UIM claims against the carrier.

According to information received on this case, the case proceeded through the pleadings and discovery phases in a consolidated fashion.  A motion to sever the cases was originally filed shortly before the first trial and was denied.  During jury deliberations after the first trial, the jury submitted a number of written questions that suggest that the jury was aware that the tortfeasor had insurance coverage and that the jury was focusing on matters that were asserted to be prejudicial to the Defendants.  As such, Judge Bratton granted a motion for a mistrial.  The Motion for Reconsideration which is the subject of this Oaks decision was filed after the mistrial.

 This Motion for Reconsideration was granted and in that Order the court held that the negligence claims asserted by the Plaintiff against the Defendant would be severed, for the purposes of the retrial of this matter, from the UIM claims against the carrier Defendant.

In other words, the retrial of this matter was held to proceed in a bifurcated fashion with one trial on the negligence claim against the tortfeasor, and a separate trial on the UIM claim against the carrier.

Unfortunately no rationale or reasoning behind this decision in contained in the court's Order.

Anyone wishing to review this decision, may click HERE.

I send thanks to Attorney John A. Statler of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner for providing me with a copy of this decision.


A review of the Post-Koken Scorecard on confirms that there is a split of authority within the trial court decisions out of Dauphin County on the issue of consolidation versus severance of Post-Koken cases from the pleadings and discovery phases of a case.

This more recent Oaks v. Erie Ins. Exchange case summarized above confirms that at least one Dauphin County Judge has ruled that a Post-Koken case should be bifurcated into two separate trials, i.e. one trial on the negligence claims against the tortfeasor Defendant, and a separate trial on the UIM claim against the carrier.

The Post-Koken Scorecard on confirms that, to date, there is a split of authority amongst the trial courts on whether or not to bifurcate a Post-Koken case for trial. 

The only appellate case, to date, to comment on this bifurcation of trial issue is the Stepanovich v. McGraw and State Farm case, the Tort Talk blog post on which can be viewed HERE.  My Pennsylvania Law Weekly article reviewing that Stepanovich case can be viewed at this LINK.