Wednesday, October 17, 2018

Discoverability of Claims File Info in First Party Wage Loss Litigation

In the case of Neidich v. Progressive Advanced Ins. Co., No. 17-5375 (E.D. Pa. Aug. 22, 2018 Padova, J.), the court granted, in part, a Plaintiff’s Motion to Compel production of certain entries from the Defendant’s carrier’s claim file that the Defendant had maintained were protected by the attorney work product doctrine.    This case arose out of an automobile accident claim pertaining to a first party wage loss dispute.  

During the course of discovery, the Defendant carrier refused to produce certain materials from its insurance claims file, asserting that the materials were protected by the attorney work product doctrine.   In particular, at issue in this case were the mental impressions and opinions of the claims representative and the carrier’s reserve information.   The court was provided redacted and unredacted copies of the claims file, along with a privilege log, for an in-camera review of the file.  

The court reviewed the parameters of the work product doctrine as set forth under F. R.C.P. 26(b)(3).   Noted that the “temporal trigger for work product protection in this context is the ‘point in its investigation [when] an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation’.”   See Op. at 3 [citations omitted].  

The court more specifically stated that the party asserting work product protection must demonstrate that it subjectively anticipated litigation, and that the anticipation was objectively reasonable. Id. [citations omitted].  

One issue in this case was point at which it could be considered that the carrier reasonably anticipated litigation.   

In this matter, the carrier stated that it reasonably anticipated litigation when Plaintiff’s counsel contacted the carrier seeking “to discuss and avoid litigation.”   The carrier asserted that the disputed entries in the claims file made after that event should be protected by the work product privilege.  

However, the court in this matter stated that, a lawyer’s mere suggestion of a lawsuit is not enough to make a carrier reasonably anticipate litigation when the carrier’s evaluation of the claims is ongoing.   The court pointed to a case indicating that an insured’s attorney’s threat to file suit did not serve as the trigger for the work product doctrine.  As such, this argument by the carrier was rejected by this court.  

The carrier also argued, in the alternative, that the court should, at a minimum, extend a work product protection to the carrier’s reserve information.   The court in this matter rejected the carrier’s contention that reserves are to be treated as work product on a per se basis.   Accordingly, the court rejected the carrier’s argument that insurance reserves are always prepared in anticipation of litigation and are therefore always  protected as work product.

In this matter, the court ultimately concluded that the carrier had failed to provide relative factual support for its position that the disputed materials concerning reserve information in this particular case were prepared in anticipation of litigation.  As such, the Plaintiff’s Motion to Compel was granted. 

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

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

Tuesday, October 16, 2018

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors

In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.

Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.


Monday, October 15, 2018


Please call 570-346-0745 or email me at to schedule your Mediation.

HOPE TO SEE YOU THERE: Presenting Forrest Gump Themed Civil Litigation Update Seminar at Nov. 8, 2018 Luzerne Co. Bench Bar Conference

On November 8, 2018, Daniel E. Cummins of the Scranton law firm of Foley, Comerford & Cummins along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price,  will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.

Friday, October 12, 2018



One of the best ways to keep your files moving is to answer the regular mail that comes in on the day that it comes in -- as you open your mail, dictate a letter or email in response to the mailing or to the client with a status update.

Give any mailings that provide notice of appointments for your calendar to your assistant with the rule being that the assistant must mark it down on the calendar the same day as opposed to being able to put it aside to do later.

When you run through your mail right away, it's done.  And the case is one step, however small, moved forward and closer to its eventual conclusion, whatever that may be.

As Ben Franklin once said, "Don't put off until tomorrow what you can do today."

Punitive Damages Claims Allowed Against Tractor Trailer Driver Allegedly Using Cell Phone in White Out Conditions


In the case of Ehler v. Old Dominion Freight Line, No. 2018 -00307 (C.P. Lebanon Co. Aug. 30, 2018 Charles, J.), the court denied Preliminary Objections filed by a trucking Defendant against claims of recklessness and punitive damages based upon allegations that the commercial truck driver was allegedly using a cell phone at the time of the accident. 

This matter arose out of a multi-vehicle accident involving 64 vehicles under wintry conditions on a highway.  

After reviewing the general law pertaining to punitive damages, the court also pointed to Pennsylvania’s Distracted Driving Law, 75 Pa. C.S.A. §1622, which prohibited commercial drivers from utilizing hand held mobile devices while driving, except in emergency situations.  

The court otherwise noted that a review of case law from Pennsylvania and other jurisdiction did not provide a clear consensus as to whether the use of a cell phone while driving, in and of itself, constituted recklessness.

However, the court noted that, under the facts before it, driving a commercial truck while using a cell phone was a violation of state law.  

The court additionally noted that the weather involved white out conditions at the time of the accident.   The court included this factor in determining that the Preliminary Objections should be denied on claims of recklessness in terms of using a cell phone while driving a commercial vehicle in white out conditions.  

Although the court denied the Preliminary Objections, it noted that the issue could be subject to further review once discovery was completed on issues presented.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).