Friday, October 30, 2009


I submitted the following short story in the Pennsylvania Lawyer magazine's 2009 Short Story Fiction Contest but, unfortunately, it was not one of the three stories selected for publication in the November/December edition. I offer it here for your (hopefully) reading enjoyment:




For Attorney J. Benjamin Hogan III, life was good as long as he didn’t care too much. After fifteen years of practicing law, most of it spent defending insurance companies in all kinds of personal injury cases, Attorney Hogan believed he was just getting into the stride of his career. Without much effort, he had been made partner after seven years in a firm that was flourishing. Despite the current recession, there were plenty of car accidents to go around to justify his existence.

Attorney Hogan was tall and thin with broad shoulders, perfect for filling out the pin-striped double-breasted suits he was fond of wearing. He wore his jet black, wavy hair just a tad too long. On occasion, he would toy with wearing a pair of dark, rectangular reading glasses believing they gave him a more sophisticated look.

Ben, as he was known by his peers, liked to believe that he was a well respected civil litigator known for his good “people” skills. Yet, in recent years, he much preferred to simply deal with the papers stuffed in his many brown accordion style files as opposed to the various types of people who were his clients. In his career as a litigator, people had always been a nuisance who stood in the way of his ability to settle cases and move onto the next one.

As he strode off the elevator from an early lunch and into the mahogany paneled, red carpeted foyer of his firm’s office, he glanced up at his name on the wall, partly with pride and partly just to make sure it was still there. He checked his phone messages and began to make his way back to his office when he was stopped by his secretary.

“Ben,” she called from her desk, “Your deposition tomorrow in the Evans case has been cancelled.”

The case of The Estate of Tammy Evans v. Anna Novak and James Morgan, involved the death of Tammy Evans as a result of a horrific car accident. The following day, the parties to the lawsuit were set to take a deposition of Anna Novak, who was Attorney Hogan’s client. These depositions had been on Attorney Hogan’s calendar for months waiting to be completed.

“Why?” Ben asked, not really caring and thinking more about all of the other work he could get done now that the next day had opened up.

Still typing away and not looking up, the secretary casually responded, “The other attorney’s office said something about him being called to cover a golf outing with a client. Did you want me to cancel your pre-deposition meeting with Ms. Novak?”

“No,” said Ben, “Don’t call her. We’ll just have her still come in so I can go over the case with her. That way, the next time these depositions are set up, I won’t have to waste as much time with her preparing. See if you can get the depositions rescheduled to take place in the next month or so.”

* * * * * *

Anna Novak was worried sick about her impending deposition set for the next day. Sitting at a table in the food court of the mall with her mother and baby, she stared at her lunch unable to eat. Anna was a slight girl of only twenty years of age who could not afford not to eat. The lines around her eyes betrayed her and gave her a worn, defeated look so early in life.

“What’s wrong?” her mother asked. Anna’s baby boy smiled up at them from his high chair.

“I have that supposition…er…deposition, or whatever it’s called, tomorrow in Tammy’s lawsuit. I have been dreading it for months and now it’s here. What’s worse is that I haven’t even heard from that freakin’ attorney from the insurance company. I mean, he sent some letters in the beginning and some written questions about the accident I had to fill out months ago, but since then, I haven’t heard squat.” Anna’s voice began to rise. “I don’t know what to expect tomorrow and it’s totally stressing me out! I haven’t been able to eat. I can’t sleep.” Tears welled up in Anna’s eyes.

“Okay, Okay,” her mom said softly, touching Anna’s hand. “I’m sure it’s nothing to worry about. You just go in there, tell the truth, and tell them what you can remember. Now calm down or you’re gonna upset the baby.”

“The accident happened three years ago!” Anna cried in exasperation. She took a breath, and, through tears, whispered, “I can’t remember everything that happened. All I can think about is Tammy. I killed her.”

It took all Anna had in her not to break down in front of the baby. “On top of all this, my boss at the diner is pissed because I have to come in late for work.”

A thought bolted into Anna’s head, “Oh! I totally forgot – Ma, you gotta’ babysit for me tomorrow morning when I go to this thing.”

Anna’s mom withdrew her hand from Anna’s. “Geez, Anna. I don’t know. I have a dental appointment. I don’t know if I’d be able to get another appointment that quickly.”

“Mom, you have to! There’s no one else to babysit on such short notice,” Anna said a little louder than she intended with the strain becoming more and more apparent in her voice. The baby began to cry.

“I said I will see what I can do,” her mother replied sharply, getting a bit frazzled herself.

* * * * * *

That same day, Attorney Hogan left the office early, hoping to shoot over to the softball field and get in some batting practice before the game. The local attorneys had gathered a team and joined a neighborhood softball league. For some of the older guys it was a chance to keep the dream alive of someday hitting a stand-up triple. Sadly, for most of these guys, slowed and jaded by age, that dream would never be realized. Most of them hadn’t seen the likes of third base since they were on a date at a drive-in movie back in high school.

Ben had joined the team as a way to blow off some steam after work. On this nice, summer night of softball, he had decided not to bring the Evans v. Novak file home, figuring he could skim through it in the morning just before his meeting with Anna Novak.

He took a seat on the small bleachers next to his buddy, Tommy Herzog, a criminal defense attorney. Tommy Herzog was just coming off a suspension of his license to practice law on account of “borrowing” money from his clients that he eventually paid back.

“Hey Ben, what’s up?” Tommy said as he passed Ben a beer.

“Not much. Same old, same old.”

“You busy?”

“Yeah, not crazy busy, but busy enough,” Ben responded. “There’s enough car accidents to go around.”

Tommy asked, “Whaddya’ got tomorrow?”

“Just another day,” Ben said, “Had a deposition in a death case tomorrow that was cancelled, so it’s sorta’ cleared my day up for me. Maybe we can do lunch.”

Hmm. Did you call your client to tell them it was off?”

“Nah, I figured I’d have her come in and we’d go over the file a little to prepare for the next time it’s scheduled.” Ben tied up his spikes and took another slug from his ice cold beer.

Tommy looked at Ben and chuckled. “You didn’t call the client?”

“No….What?!” Ben asked, still not getting it.

“Man, your client’s probably nervous as hell, all worried about this thing.”

Ben smiled and still didn’t think anything of it. “Oh well, not much I can do about it now. Let’s go!” Ben picked up a bat and trotted to the plate for some swings before the game.

* * * * * *

That night Anna lay awake in bed crying, feeling alone and scared. The next day’s deposition was bringing back the terror of the car accident in full force.

The accident had happened on a perfect, spring night. Anna was driving her friend Tammy to a party. They were both set to graduate high school and the prom was only two weeks away. The girls had already planned a senior week at the shore following graduation. Then Tammy would soon be on her way to Cornell on a full ride to study to become a veterinarian. Anna, who had not done as well in high school, was planning to start at a local community college.

Everything changed in an instant. Anna had entered an intersection on a green light and slowed to make a left hand turn. She was changing the channel on the radio and chatting with Tammy, who was relaying their conversation to another friend on her cell phone. Laughter filled the car.

As Anna began her left turn, she suddenly realized that the oncoming pickup truck was closer and faster than she thought. Horrified, Anna felt adrenaline reach every cell in her body as she stomped on the gas to outrun the truck, but it was too late. The pickup truck slammed into the passenger side door, crushing Tammy and her dreams instantly. Anna was left with a broken body that eventually healed, flashbacks, and a lifetime of guilt.

* * * * * *

Getting home from the softball, Ben pulled his silver Jaguar into his circular driveway pleased with how he had played in the game. As he normally did after a game, Ben walked through the gate of the cedar wood fence that surrounded his two-story Tudor style home and trotted back to the pool area.

There he threw off his shirt, cleats, and socks and, to the shouts of “Daddy!,” dived into the deep end of the pool. He swam under the cool, refreshing water to the shallow end, climbed up the steps of the pool, and, dripping all the way, walked over to the patio table where he kissed his wife, Beverly, and his two young blonde haired daughters, Brittany and Brianna, who were waiting for him with a barbecue dinner.

“How was your day, dear?” his wife asked him while handing him an ice cold Corona (with a lime twist, of course). The bottle glistened with condensation on this muggy night.

“It was quiet,” Ben replied. “And tomorrow looks even better now that my deposition was cancelled.”

Ben enjoyed his dinner with his family and then took his daughters up for a little play time and a bath before they would be put to bed promptly at 8 p.m. After the kids were asleep, he enjoyed some quiet time watching T.V. with his wife and discussing the trip to the shore they had planned for the upcoming weekend. When Ben later went to
bed that evening after the news, it seemed as if he fell asleep as soon as his head hit the pillow.

* * * * * *

Anna eventually fell asleep around 3 a.m. only to have the baby’s cries wake her up at 3:30 a.m. After finally settling the baby back to sleep, Anna tossed and turned for a few more hours before getting up at dawn to get ready for her 9:30 a.m. meeting with Attorney Hogan.

Her mom had called the night before to indicate she switched her dental appointment and could babysit after all. Anna was so nervous that she left for Attorney Hogan’s office without eating as soon as her mother arrived at her apartment at around 8:30 a.m.

Anna arrived at the law office a half hour early for her appointment and was escorted to wait on a couch surrounded by months old, wrinkly magazines. Anna could barely breathe, her palms were wet, and she repeatedly fought back tears. To make matters worse, her appointment time of 9:30 a.m. came and went with no signs of Attorney Hogan. For twenty minutes she had continued to stare at the words of the same page of a Sports Illustrated she had absentmindedly picked up.

A little after 10 a.m., a tall man with dark wavy hair wearing a blue blazer, crisp khakis, and saddle shoes came off the elevator, strolled through the reception area and right past Anna without even looking at her. Ten minutes later, that same man walked back up to Anna, and with a fake, toothy grin, introduced himself as “Attorney Hogan,” shook her clammy hand, and invited her into a conference room.

When they sat down, Attorney Hogan opened up with, “You may be happy to know that your deposition has been continued.”

“Continued?” Anna asked. “What…what does that mean?”

“Uh, postponed,” Attorney Hogan replied. “We’re working on a new date now. I figured I’d still have you come in today anyway so we could prepare for it.”

Anna went numb. As Attorney Hogan droned on about the deposition process, he began to sound to Anna like the teacher from the Charlie Brown cartoons. Still unable to process the news that she would not be getting her deposition over and done with, Anna stared out the window longing for the meeting to end so she could flee and cry.

When the meeting finally ended about twenty minutes later, Attorney Hogan obliviously escorted Anna to the elevator and told her he’d let her know when the deposition was rescheduled. He never apologized and did not inquire of Anna what day or time would be convenient to her. Anna was still dazed as she stepped into the elevator and only half-heartedly waved good-bye to the smiling attorney. When the elevator door finally closed on Attorney Hogan’s office, Anna leaned against the wall, burst into tears, and hugged herself.

Attorney Hogan turned and whistled as he sauntered back to his office. He stopped and called out to his secretary, “Hey, call Tommy Herzog for me and see if he’s around for lunch.”

Wednesday, October 28, 2009

Appeal to Pennsylvania Supreme Court Filed in Recent Monumental UIM Decision of Pusl v. Means

I recently reported on the monumental decision by the Pennsylvania Superior Court in the case of Pusl v. Means, 2009 WL 3065089 (Pa.Super. September 23, 2009, Judges Bowes, Freeburg, and Popovich).

The prevailing was defense counsel in the case, Craig E. Murphey from the Erie law firm of MacDonald, Illig, Jones & Britton. Attorneys Thomas A. McDonnell and Joseph A. Hudock of the Pittsburgh law firm of Summers McDonnell, Hudock, Guthrie & Skeel authored an amicus curiae brief for the defense at the request of the Pennsylvania Defense Institute.

Attorney Murphey has advised me that the Plaintiff in Pusl has filed a Petition for Allowance of Appeal to the Supreme Court on the issues presented. It remains to be seen whether the Supreme Court will agree to hear the case.

In Pusl v. Means, the Plaintiff was injured in a car accident and sued the tortfeasor. Before trial, the Plaintiff settled her UIM claim with her own insurer, State Farm, for its $75,000 policy limits. At the later trial against the tortfeasor, the Plaintiff secured a verdict of $100,000.

At the Defendant's request after the verdict in the lawsuit matter, the trial court molded the verdict down to reflect Pusl's recovery of UIM benefits for the same accident. The verdict was thereby reduced to $25,000.

In affirming the trial court's decision on appeal, the Superior Court reasoned that the lower court's decision was supported by 75 Pa.C.S. Section 1722 of the Motor Vehicle Financial Responsibility Law which recognizes the longstanding public policy against allowing Plaintiff's any double recoveries for the same loss.

The Superior Court rejected the plaintiff's claim that allowing the molding down of the verdict, or a set-off for previously received UIM benefits, was a violation of the collateral source rule.

Finally, the Court in Pusl also found that the decision does not offend the notion that a tortfeasor should have to pay for all losses he has caused because the UIM carrier could, if it wished, preserve its subrogation claim against that tortfeasor. In that regard, the defendant would still be responsible for the entire verdict while the Plaintiff was still precluded from recovering more than the amount the jury determines is necessary to compensate the plaintiff.

This decision has a great impact on the handling of automobile insurance litigation matters in Pennsylvania, and it will be interesting to see how the Supreme Court addresses the issue, assuming they agree to hear this appeal.

Amicus Curiae Brief Filed on Behalf of Pennsylvania Defense Institute on Important Discovery Issue

I just authored and filed an amicus curiae brief at the request of and on behalf of the Pennsylvania Defense Institute in the Pennsylvania Superior Court Case of Gormley v. Edgar.

The main issue presented is whether the trial court correctly granted the Defendant’s motion to compel the Plaintiff’s compliance with securing the production in discovery of a pre-accident mental health evaluation report completed on the Plaintiff’s with regards to her prior emotional and mental condition in a case where the Plaintiff alleges severe and continuing emotional distress, anxiety, and mental anguish as a sole result of the motor vehicle accident which was the subject of the pending litigation.

Stated otherwise, the issue is whether the Plaintiff waived any asserted privilege against the disclosure of her pre-accident mental health records when she asserted claims of severe, disabling, and continuing emotional distress and mental anguish as part of her personal injury claim in a motor vehicle accident case.

It is anticipated that the Gormley case will be scheduled for oral argument in the near future. If you would like more information on this issue, please do not hesitate to contact me at

Tuesday, October 27, 2009

Recent Unpublished Northeastern Pennsylvania IME Cases of Note

I recently posted the article “Recurring Symptoms of IME’s: Independent medical examinations have given rise to many complex issues,” 30 Pennsylvania Law Weekly 475 (May 7, 2007) outlining recent caselaw on a wide variety of issues pertaining to IME.

The following additional, recent unpublished Northeastern Pennsylvania IME cases of note were brought to my attention by Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee. I thank Attorney Gilmartin for sending these cases my way.

In the case of Monahan v. The Manitowoc Company, Inc., et al., No. 465 - Civil - 2005 (Luzerne County, November 2, 2007), then Judge Michael T. Conahan (ahem) issued an Order without any opinion addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological IME.

The Order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, PA office of the expert by the plaintiffs own means or by means paid for by the Defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, PA either by the plaintiff's own means or by means paid for by the defense.

In the separate, more recent IME case of Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie issued an Order without any opinion holding that the Plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation (IPE).

According to the Defendant's Brief filed in Chisarick, the issue was governed by an application of Fed.R.C.P. 35, pertaining to physical and mental examination prior to trial. Unlike the similar Pennsylvania state Rule of Civil Procedure 4010 pertaining to expert examinations, Federal Rule 35 is silent on the issue of whether counsel or a representative of the plaintiff may be present during such examinations.

The defense brief argued that a majority of Federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint and/or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere. See Shirsat v. Mutual Pharma. Co., 169 F.R.D. 68 (E.D.Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981); but see Showell v. Trump Taj Mahal Casino, 2000 WL 1514108 (E.D.Pa. 2000)(Plaintiff's counsel allowed to attend IPE but only if he did not interrupt and sat silently behind his client).

As noted, Judge Vanaskie chose to follow what the defense termed was the majority rule and he precluded the attorney or any representative from attending the IPE with the Plaintiff in this matter.

Thursday, October 22, 2009

Products Liability: Pennsylvania Supreme Court Clarifies Burden of Proof in Malfunction Theory Case

In the recent October 2, 2009 case of Barnish v. KWI Building Co., 2009 WL 3161492 (Pa. 2009), the Pennsylvania Supreme Court unanimously clarified the burden of proof on a malfunction theory claim in a products liability action.

The case revolved around a spark detection device that was designed to detect sparks along a conveyor belt system through the use of multiple sensors.

On February 13, 2001, employees of one of the co-defendants were using a torch outside of the factory. Sparks allegedly entered the building through a gap in the wall and landed on the conveyor belt, which was transporting combustible materials. An explosion and fire killed two workers and injured others. Suit was brought against multiple defendants including the manufacturer of the spark detection device.

The Plaintiffs alleged that the sensors were defective under a strict products liability claim. However, the Plaintiffs were unable to present direct evidence of a defect in the sensors because the sensors were lost after the explosion. Therefore, the Plaintiffs attempted to proceed under the malfunction theory. Under this theory, the law allowed the Plaintiff to proceed on circumstantial evidence.

However, the Pennsylvania Supreme Court affirmed the decisions of the trial court and the Superior Court that the Plaintiff had failed to present sufficient circumstantial evidence to get beyond a summary judgment motion and proceed to the jury.

More specifically, the Supreme Court noted that although the Plaintiffs presented evidence of a malfunction and expert testimony that the injuries resulted from the malfunction, the Plaintiffs' failed to present required evidence, circumstantial or direct, that the product was defective at the time it left the manufacturer’s control.

The Court was influenced by the fact that the Plaintiffs failed to present any explanation as to how the sensors could function properly for ten years prior to the subject incident and yet be defective at the time the sensors left the manufacturer’s control. The court held that the Plaintiff’s acknowledgment of prior successful use of the device undermined the inference that the product was defective when it left the manufacturer’s control.

As such, the Court held that a plaintiff who admits that the product functioned properly in the past must present some evidence explaining how the product could be defective when it left the manufacturer’s control and yet still function properly for a period of time. As evidence of this kind was not produced by the Plaintiff in this matter, the Court affirmed the entry of summary judgment in favor of the manufacturer of the spark detection device.

According to a October 12, 2009 article, "Proving a Dormant Defect" by Peter Hall in the Pennsylvania Law Weekly commentators have viewed this decision as reinforcing the malfunction theory as a valid basis of recovery and as providing clarity on the burden of proof, particularly at the summary judgment stage, under that theory of recovery in products liability decisions.

Tuesday, October 20, 2009

Property Insurance Coverage Case

In the case of Green Street Associates v. Erie Insurance Exchange, PICS No. 09-1737 (Phila. Co. 2009), a Philadelphia County Court of Common Pleas Judge Howland W. Abramson, after a two day bench trial, rejected four policy exclusions relied upon by Erie and ruled that Erie was required to provide coverage for water damage caused to a commercial building by a dislodged PVC pipe.

The facts revealed that a tenant in the building heard a loud bang and, upon investigating, found the pipe dislodged from the roof drain it was connected to. Rainwater pouring into the building from the roof. Evidence showed that .19 inches of rain fell over the 18 hours prior to the event but there was no rain falling during the 7 hours leading up to the event.

Erie insured the premises under an "Ultrasure Policy." The carrier sent out a forensic engineering expert to investigate on two occasions. He noticed rusting of the pipe and Erie initially denied coverage because the loss was caused by a drain fastener rusting away and, therefore, the loss was deemed to fall under the wear and tear exclusion. Erie also initially relied upon the rain exclusion.

By the time of trial, Erie also asserted that the loss fell under surface water exclusion and the deterioration exclusion as well.

Judge Abramson ruled that Erie failed to sustain its burden of proving the applicability of any of these exclusions. The rain exclusion and surface water exclusions were found inapplicable because it was not raining at the time of the loss. The remaining exclusions were also found inapplicable because, according to the Judge, there was no credible evidence that the stain on the pipe that became dislodged was rust as alleged and there was no credible evidence to show that the pipe became dislodged due to the rust or other wear and tear.

Anyone desiring a copy of this case may secure one from the Legal Intelligencer by calling 1-800-276-PICS, giving the PICS Case Number noted above, and paying a small fee.

I thank Attorney Gerry Connor of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.

Sunday, October 18, 2009

Never Underestimate the Power of Just Being Nice

I recently came across the following October 15, 2009 entry on the Legal Intelligencer's blog and thought it would be a great one to share. I secured the authority to do so from the author, Melissa M. Gomez, Ph.D (UPENN), a jury consultant and owner of MMG Jury Consulting, LLC ( out of Philadelphia. I couldn't agree more with her notion that just being nice can go a very long way in the practice of law:

Never Underestimate the Power of Just Being Nice

Picture this: It is sometime in the late 1980s. I am sitting in a dingy classroom somewhere within the halls of Council Rock High School. Hair: Big. Eyeliner: Electric blue. This class is my first introduction to psychology, the field that will become my future. My teacher, Mr. Curran, a tall lanky man who did not get the memo that the sixties were over, silently writes on the chalkboard in large, block letters: “NEVER UNDERESTIMATE THE POWER OF JUST BEING NICE.” Then he sits down and lets the students marinate for a while in the statement. Twenty years later, I still regularly reflect on it.

Are Jury Trials and ‘Nice’ Incompatible?

So what does this have to do with jury trials? In my humble opinion, a lot. I have seen many a litigator make the error of believing that, in order to advocate for their clients, they need to viciously attack the witnesses on the other side. What I want to tell you is that this tactic does not work. Actually, it often backfires.

At trial, you are not only an advocate for your client, but a reflection of your client. If you decide that the best tactic is to behave aggressively, you have to be prepared for the likelihood that jurors will associate that aggression with your client and not just you. So for example, if the other side is accusing your client of being a bully that has no regard for the individual, and then you are seen verbally attacking a witness on the stand (a behavior associated with bullies), you have in essence, projected the “bully” image in the courtroom. You have personified opposing counsel’s point.

What Does ‘Nice’ Mean at Trial?

Now, of course, being nice does not mean that you fail to make your arguments or expose bad behavior. It does mean, though, that you can attack behavior without attacking the human being. I have seen people viciously and personally attacked on the stand. Jurors don’t like it. More often, the questioner looks bad, not the witness.

For example, in a trial about a contract dispute, opposing counsel was cross-examining one of our expert witnesses. Counsel was yelling. He was flailing. He was angry. Our witness tried to stay calm and answer the questions, but he was obviously shaken by the tone of the questioning. During post-trial interviews, the jurors did not remember much about the content of that cross-examination. What they remembered was the show that the attorney put on and what they relayed was that they felt bad that this witness was forced to put up with such an attack. In essence, while opposing counsel was trying to make the witness look nervous about the content of his testimony, he only succeeded in making the witness look (understandably) upset about being verbally abused.

One day, I may be proved wrong, but, in the many cases I have seen tried, I have yet to find a situation in which it is necessary or appropriate to launch a full frontal attack on a person. Attack the decisions, point out prior inconsistent statements, question the behaviors and do it in a poised, professional manner. There is an art to calmly crushing a witness’ credibility and avoiding appearing like a tyrant. Try it out. Jurors will more likely perceive the confrontation as warranted and professional, not mean. You will appear more confident, making jurors pay attention to your points over your behavior. Of course, it doesn’t hurt that jurors will find it much easier to like you if they perceive you as a “nice” person. Even if, in the battle of the trial, we can’t quite achieve “nice,” we can manage to come away avoiding being perceived as the opposite (you may enter your own term here).

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC

I note that reading of the Pennsylvania Bar Association's Working Rules For Professionalism, along with common decency and courtesy, suggest the following additional ways to be nice in the practice of law:

-Treat others with civility and with professional courtesy

-Simply say "please" and "thank you"

-Promptly return phone calls

-Promptly respond to correspondence

-Respect other attorney's schedules as your own--allow for continuances where needed

-Work with others on scheduling--reasonable requests should never be unreasonably refused

-Grant extensions when you can

-Be punctual for appointments; better yet, be early

-Do not use the Rules of Civil Procedure as a weapon

-Do not threaten, try to say it in a non-confrontative way whenever possible

-Attempt to resolve differences through negotiation and without expensive and time-consuming motions practice

-Whenever possible and warranted, give out compliments to others

-Simply smile.

Surely, being nice and courteous, but firm in your position without being trampled on, can go a long way in advancing one's case along in a quicker fashion and with less stress for all involved. Remember, what goes around, comes around. So get out there and hit them (and neutralize them) with kindness.

Wednesday, October 14, 2009

Lackawanna County Trial Judge Terrence Nealon Addresses Case of First Impression Regarding Supersedeas Bonds On Appeal

In an opinion filed on October 7, 2009 in the case of White v. Behlke, OB-GYN Consultants, LTD., et al., No. 03-CV-2663 (Lacka. Co. 2009), Judge Terrence Nealon addressed the novel issue of the amount of the appellate security/supersedeas bond that must be filed by a defendant and/or the defendant's insurer when the jury verdict far exceeds the total amount of the available insurance coverage. According to Judge Nealon, the question presented appears to be a matter of first impression in Pennsylvania and there was no reported decisional precedent found on this issue in Pennsylvania prior to this opinion.

In White, after a trial in an obstetrical medical malpractice matter, the jury entered a verdict finding Dr. Behlke and his practice group, OB-GYN Consultants, Ltd. 60% causally negligent and the CMC Hospital in Scranton 40% negligent. The November 17, 2008 verdict was in the amount of $20.5 million dollars, the largest ever in Lackawanna County.

On June 17, 2009, post-trial motions by Defendant Behlke and OB-GYN were denied (CMC previously settled out after the verdict for $6 million dollars) and the court also granted the Plaintiff delay damages that ballooned the judgment in favor of the Plaintiffs on the verdict up to $27,352,195.21.

Pursuant to the joint tortfeasor settlement previously secured by the CMC Hospital, Dr. Behlke and OB-GYN still remained responsible for their 60% of the molded judgment of over $27 million dollars. That 60% figure was $16,411,317.13.

On July 13, 2009, Dr. Behlke and OB-GYN filed an appeal to the Superior Court. Judge Nealon noted that a party filing an appeal may obtain an automatic supersedeas against an execution on that judgment "upon the filing with the clerk of the lower court an appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid." Pa.R.A.P. 1731(a). The purpose of the bond is to protect the judgment in favor of the prevailing party while the other party appeals.

In this matter, Dr. Behlke and OB-GYN filed an application to the trial court to stay the execution on the judgment along with a request to reduce the amount of the required appellate security.

It was argued that the moving defendants should not have to pay a bond to cover the 40% of the verdict that was assessed to the co-defendant CMC Hospital or a bond to cover the amount that would have to be paid by MCARE as the MCARE Fund is not required to post bond in appellate matters under Pennsylvania law. It was additionally argued by the moving defendants that the amount of the required bond should be further reduced so that the defendants would not be deprived of their right to pursue their appeal by virtue of their inability to pay the required bond to stay the execution.

Dr. Behlke and OB-GYN did post bond in the amount of over $1.6 million dollars, which represented 120% of these defendants' primary coverage and pro rata share of delay damages. The primary coverage was provided through their carrier, the Medical Protective Company (Med Pro). It was noted in the opinion that the provisions of Med Pro's policy of insurance expressly limited the bond payment to that calculation of the payment based upon the amount of available policy limits.

The moving defendants additionally asserted that their insurer should not have to post bond in an amount in excess of the available policy limits as that would expose the carrier to possibly having to make a payment above the policy limits should the opposing party prevail on appeal.

The Plaintiffs in White agreed that the moving defendants did not have to post bond to cover the 40% of the verdict assessed to CMC or to cover that portion of the verdict to be paid by the MCARE Fund. The Plaintiffs also agreed that Dr. Behlke did not have to attempt to post bond from his personal assets.

However, the Plaintiffs asserted that, since they had secured an assignment from Dr. Behlke and OB-GYN to pursue a bad faith "failure to settle" claim against Med Pro, Med Pro should be required to pay 120% of the remaining net judgment against Dr. Behlke and OB-GYN in order to obtain the supersedeas and a stay against the execution on the judgment. That bond amount would be over $17 million dollars.

The Plaintiffs argued that Med Pro assumed the risk of the verdict when they refused to enter into a binding high/low agreement prior to the entry of the verdict and should therefore be responsible to pay the appropriate bond in full. The moving defendants opposed this argument by asserting that no bad faith liability on the part of Med Pro had been established to date and, as such, that company should not be obligated to bond the full amount of the net judgment in the interim.

Judge Nealon noted that while Pennsylvania law generally allowed for reductions in supersedeas bonds in certain circumstances under Pa.R.A.P. 1737(1) and under Section 515 of the MCARE Act, there was a dearth of Pennsylvania decisions addressing the judicial reduction of a supersedeas security in appeals in civil litigation matters. Accordingly, Judge Nealon turned to a thorough review of authorities from other jurisdictions for guidance on the issue presented.

Ultimately, Judge Nealon held that "since (1) the insurer's alleged bad faith liability for the excess, uninsured verdict has yet to be established in a separate proceeding, (2) the applicable insurance policies obligate the insurer to furnish bond in an amount not to exceed its policy limits and proportionate share of delay damages and (3) the plaintiffs have already agreed not to seek collection of the excess judgment from the defendant's personal assets in exchange for the defendants' assignment of their putative bad faith claims against their insurer, the defendants have made the requisite showing under Pa.R.A.P. 1737(1) and 40 Pa.C.S.A. Section 1303.515(d) for the requested reduction of their appellate security and the concomitant issuance of a supersedeas against execution."

As such, the reduction sought by Dr. Behlke and OB-GYN (and Med Pro) was allowed.

Obviously, this case can have impact outside of the medical malpractice field and could come into play in premises liability cases and automobile cases where a large verdict is entered.

It is emphasized that, in his opinion, Judge Nealon relied upon, in part, authority from other jurisdictions holding that "the question of whether an insurer is obligated to post security or a supersedeas bond for that portion of a judgment which exceeds the insurer's policy limits depends upon the language of the applicable insurance policy." Therefore, carriers may be wise to ensure that they have such language in their policies as an additional means of limiting their exposure in terms of the amount of a the bond or security that would have to be paid to prevent execution on an excess judgment while appellate remedies are sought after.

Anyone desiring a copy of this opinion may contact me at

Tuesday, October 13, 2009

ARTICLE: Recurring Symptoms of IME's

Recurring Symptoms of IME's:
Independent medical examinations have given rise to many complex issues

By Daniel E. Cummins
Special to the Pennsylvania Law Weekly

While an independent medical examination is utilized in most personal injury actions, the law regarding the procedure for IMEs and the discovery issues that may arise is not fully developed. The recurring issues, along with the applicable law, are analyzed below.

Typically, an IME is arranged after the depositions have been completed and all of the records and films have been secured. At times, the defense may wish to attempt to settle the case prior to incurring the substantial expenses related to an IME and the trial deposition of the IME expert. Where such settlement efforts are not successful, the competing interests of the plaintiff moving the case to a prompt resolution and the defendant's desire to complete expert discovery may come into conflict.

Generally speaking, where the damages issues are in dispute, the trial courts will err on the side of caution and allow the defense time to complete expert discovery so as to avoid the creation of any appellate issues.

In this regard, the Superior Court has held that an IME may be compelled even after an arbitration hearing particularly where liability was admitted and the sole issue for the jury involved damages and the limited tort question. McGratton v. Burke, 674 A.2d 1095 (Pa. Super. 1996). One trial court went so far as to rule that an IME may be compelled even after filing a certificate of readiness. Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).

Place and Costs of Exams

In addition to the timing of an IME, the location of the IME may become an issue. Disputes may arise as to the place of the exam and the need for the examinee to travel a distance to attend the exam. In the case of Meeker v. Sarris, 40 Pa.D.&C.2d 643 (C.P. Beaver 1966), the court held that a defendant, in seeking an IME of the plaintiff under Rule 4010, is not required to have such examination completed in the county of the plaintiff's residence or the county where suit was brought.

In today's practice, where there is travel involved for the plaintiff of about an hour or more to get to the place of the IME, the courts will generally require under Pennsylvania Rule of Civil Procedure 4011 that the plaintiff be reimbursed the reasonable expenses related to the same, such as mileage, tolls or food expenses.

Persons Present

Once the time and place of the IME is set up, Rule 4010 advises who may attend the IME in addition to the plaintiff. The rule expressly states that the "person to be examined shall have the right to have counsel or other representative present during the examination."

Experience advises that among those persons who have been allowed to attend IMEs with plaintiffs, include the plaintiff's attorney, a paralegal or legal assistant from plaintiff's attorney's office, or a nurse hired by the plaintiff's attorney to monitor the exam. Although it is likely cost prohibitive, it has even been held that the plaintiff may have his own treating medical expert present at the IME. Harding v. Sears, 47 Pa.D.&C.3d 591 (C.P. Washington 1987).

The plaintiff will not be permitted to compel the defense to pay the fees associated with having the plaintiff's attorney or representative attend the examination. State Farm v. Morris, 432 A.2d 1089 (Pa. Super. 1981).


While Rule 4010 specifically allows a plaintiff or his or her representative in attendance to audio record an IME, the courts have refused to extend the rule to allow for the videotaping of the same. In State Farm v. Miller, 8 Pa.D.&C. 4th 614 (C.P. Somerset 1990), the court specifically denied the plaintiff's request to videotape an IME as an unreasonable intrusion into the examining room and an undue burden on the physician.

Additionally, under Rule 4010, if an audio recording is made, the plaintiff must produce copy of tape to the defense at reasonable cost upon receipt of a request for the same.

Multiple Examinations

Generally speaking, multiple IMEs will not be allowed by the courts except where just cause exists. Dissatisfaction with an initial IME report certainly does not constitute just cause. Farmer v. Supermarket Gen'l Corp., 10 Pa.D.&C.4th 500 (C.P. Philadelphia 1991). However, in a case where the claim was for permanent injuries and continuing pain, and a year and a half had elapsed since the defendant last had the plaintiff examined, the defendant was allowed another IME in the case of Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).

Where a plaintiff has different types of injuries, such as an orthopedic injury and a dental injury, IMEs with experts of different specialties will generally be allowed.

Production of Reports

On occasion, an IME report unfavorable to the requesting party's position may be generated. The issue becomes whether the requesting party is required to produce that report, particularly where a decision is made not to call the expert as a witness at trial.

Pennsylvania Rule of Civil Procedure 4003.5(a)(3) provides that a party may not obtain discovery regarding any expert that is not expected to be called as a witness at trial, "except a medical expert as provided in Rule 4010(b) [regarding IMEs]....." [Emphasis and bracket added].

In the relatively recent decision of Lloyd v. Lloyd, 889 A.2d 1246 (Pa. Super. 2005), the court partly relied on Rule 4003.5(a)(3) in holding that a medical expert report obtained by an opposing party must be produced. In Lloyd, a former wife submitted herself and her children to a custody evaluation performed by an expert at the request of her former husband. The former husband then initially listed the expert as a possible witness in his pre-trial memorandum. However, a decision was later made by the former husband not to call the expert as a witness at the hearing. The court ruled that the former wife was nevertheless still entitled to discovery of the expert report.

Thus, it appears that the Rules of Civil Procedure and Pennsylvania case law generally require the production of the IME report regardless of the opinion contained therein.

Utilizing an Opponent's Expert Opinion

Although a plaintiff may secure a copy of an IME report of a doctor that the defense does not intend to call as a witness, the plaintiff may not thereafter compel that expert to testify on behalf of the plaintiff at trial. Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003); see also Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. Super. 1996) aff'd. 696 A.2d 1169 (Pa. 1997). The appellate courts have also gone so far as to say the plaintiff may not otherwise utilize such an IME report at trial. Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Commw. 1992).

The rationale behind this rule is an acknowledgement of an expert's proprietary interest in his own opinion and the recognition that he or she should not be required to relinquish it without his consent. An open issue arises as to whether the expert may agree to testify for the plaintiff in exchange for a fee paid by the plaintiff where the expert essentially remains under the employ of the defendant that originally retained the expert.

However, it has been established that where an IME doctor's deposition for trial has been completed, any party may use that deposition for any purpose at trial under Pennsylvania Rule of Civil Procedure 4020(a)(5). See Wiley v. Snedaker, 765 A.2d 816 (Pa. Super. 2000). The rationale behind this rule is that, in such a situation, the defense made the witness available, the expert freely testified, and his testimony thereby became available for use by either party.

Discovery of Bias

A recent hot issue in this area is the extent to which plaintiff's counsel may obtain discovery regarding the potential bias of an IME doctor. Although the Federal Rules of Civil Procedure expressly sets forth the parameters of discovery in this regard under F.R.C.P. 26 (a)(2)(B), no such rule is found in the Pennsylvania Rules of Civil Procedure. Rather, until recently, the state trial courts have been on their own in attempting to carve out their own rules.

One issue that has arisen in the state courts is the ability of a litigant to discover written communications between the opposing party and that party's expert. One trial court that addressed this issue required the production of all written correspondence between plaintiff's attorney and plaintiff's expert witness, but allowed plaintiff's attorney to redact his opinion work product. Pavlak v. Dyer, 59 Pa.D.&C.4th 353 (C.P. Pike 2003).

In its Jan. 9, 2007 decision in Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007), the state Supreme Court attempted to clarify other issues surrounding a party's right to discovery of an expert's potential bias. In Feldman, the Court relied upon its prior holding in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), in ruling that a plaintiff in a personal injury case is not entitled to limited discovery on the financial background expert unless a threshold is first met showing that expert is a professional witness or might color his or her opinion in light of substantial financial incentives.

The Feldman court noted that the plaintiff may attempt to meet the required threshold showing through interrogatories inquiring as to "the approximate amount of compensation received and expected in the pending case, the character of the witnesses' [sic] litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same time period; the approximate portion of the witness's overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services."

From the Feldman opinion it appears that if the threshold showing is met, the courts may allow discovery into a professional witness' finances possibly up to three years back.

As IMEs remain an integral part in evaluating plaintiff's claims of personal injury, the above law will have to be continually developed. Obviously, the law surrounding the use of medical experts and particularly those cases regarding discovery on the potential bias of a medical expert, should also be deemed to apply to plaintiff's experts retained for litigation purposes as well. •

This article by Daniel E. Cummins, Esquire of the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins, first appeared in the Pennsylvania Law Weekly.

This article is reprinted here, with permission, from the May 7, 2007 issue of the Pennsylvania Law Weekly. (c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Sunday, October 11, 2009

Motor Vehicle Accident Fatalities Down 7% in First Half of 2009

According to a recently released study from the National Highway Traffic Safety Administration (NHTSA), traffic-related fatalities were down 7% in first half of 2009 (Jan. to June) when compared to the first half of 2008. According to the study there were an estimated 17,871 such fatalities in 2008. So far in 2009, there has been an estimated 16,626 such accidents involving motor vehicles.

The study cites increased vehicle safety along with the Recesssion that has led to people traveling less as factors influencing the decrease. Surely, the recent high gas prices, nearly hitting $4.00 a gallon, led many people to stay off the road. For more info on this study, you can go to

The NHTSA also reported that seat belt use is up from 83% in 2008 to 84% in 2009. For that report, see

Obviously, these factors may all have an impact on the number of motor vehicle accident claims presented as well as the number of cases that may ever eventually get into litigation. Arguably, the across the board increase in seat belt use may also provide further support for those in favor of a repeal against the ban against the seat belt defense in civil litigation matters. The seat belt defense asserts that the plaintiff may have contributed to their own injuries by not wearing a seat belt, or raises the alternative argument that the injuries would have been less if the seat belt had been worn.

The ban against the seat belt defense in Pennsylvania was originally passed about 20 years ago when a large majority of people did not use seat belts on a regular basis and were, therefore, a large number of injured parties would have been exposed to the possibility of a seat belt defense if they were ever injured in a motor vehicle accident. According to the above report on seat belt use, there is only a slight minority who would be affected by the seat belt defense in this day and age.

What better way is there to convince the last remaining holdouts to wear their seat belts than to let them know that if they do not take the simple act of applying a seat belt (click!) when they get into a vehicle like the rest of the law-abiding society, it may impact their ability to secure a monetary recovery if they are injured in a motor vehicle accident.

Just a thought. Any comments? If so, click on the "comments" link just below this blog entry. Thanks.

Wednesday, October 7, 2009

Monumental UIM Decision Issued by Pennsylvania Superior Court

On September 23, 2009, the Pennsylvania Superior Court handed down a monumental UIM decision in the case of Pusl v. Means, 2009 WL 3065089 (Pa.Super. 2009, Judges Bowes, Freeburg, and Popovich).

Under the opinion written by Judge Popovich, the Superior Court held that, where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third party defendant tortfeasor, the third party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the underinsured motorist (UIM) benefits previously secured by the Plaintiff.

By way of background, the plaintiff in Pusl had recovered $75,000.00 in UIM policy limits under his own automobile insurance policy from State Farm prior to the completion of the the trial against the tortfeasor defendant. The opinion indicated that the UIM recovery was by settlement.

At the later trial against the defendant tortfeasor, the jury entered an award in favor of the plaintiff in the amount of $100,000.00. In post-trial motions, the defense requested a molding down of the verdict to $25,000.00 after the application of a credit or set-off of the $75,000.00 UIM benefits already previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.

In so ruling, the Superior Court weighed two conflicting public policies against each other. The first was a recognized public policy against double recoveries by plaintiffs. The second policy was that a tortfeasor should be liable for the all of damages he caused.

The Court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." That statute provides that "[i]n any action for damages against a tortfeasor...arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter....shall be precluded from recovering the amount of benefits paid or payable under this subchapter...."

The Court went on to note that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law (MVFRL). The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm." Therefore, according to the court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.

As such, the trial court's molding of the verdict was found to comport with Section 1722 and the public policy of preventing double recoveries by plaintiffs for the same injuries.

The Court disagreed with the plaintiff's argument that the reduction of the verdict amount violated the second noted public policy requiring that a tortfeasor defendant to pay for all of the damages he or she caused. Also rejected was the plaintiff's argument that the defendant was not entitled to a "set-off" of the UIM benefits previously received under the collateral source rule because the UIM benefits were collateral source benefits.

Judge Popovich wrote that by molding the verdict down by the $75,000.00 previously received in UIM benefits, "it appears, at first glance, that the public policy underlying the collateral source rule was ignored in favor of Section 1722 by lessening the amount of damages that the jury attributed" to the defendants.

However, the Court went on to reason that the tortfeasor's liability was not lessened or reduced at all because, State Farm, the carrier that paid the UIM benefits, still had the right to pursue a subrogation claim against the defendants to recover the $75,000.00 in UIM benefits back from the defendants. In other words, even though the verdict was reduced by $75,000.00, and the defendants did not have to pay that portion to the plaintiff, the defendants were still technically liable to State Farm to pay back that amount if State Farm elected to proceed on its subrogation rights. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.

The Pusl Court reiterated that the "result of molding the verdict ensures that the [Plaintiff] will receive the full amount of damages the jury determined would make her "whole," i.e. , $100,000. To allow [plaintiff] to recover $75,000 in UIM benefits from State Farm and $100,000 in damages from [defendants] flies in the face of the established policy of this Commonwealth that an injured person is entitled to only one satisfaction for the harm incurred...."

Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously viewed by some as an anomoly or in error, was cited with approval by the Pusl Court.

The Court Pusl concluded its opinion by restating that it found no error in the trial court's decision to mold down the verdict by the amount of the $75,000 in previously secured UIM benefits "in light of the clear intention of the jury that [the plaintiff] would receive a total damage award of $100,000 for her injury."

It is noted that the plaintiff's attorney in this matter was Michael John Koehler of the Erie, PA law firm of Nicholas, Perot, Smith, Koehler and Wall. Defense counsel was Craig R. F. Murphy from the Erie, PA law firm of MacDonald, Illig, Jones & Britton. Furthermore, amicus curiae briefs were also submitted by the Pennsylvania Association for Justice on the plaintiff's side as well as by the Pennsylvania Defense Institute on the defense side.

There has been no indication to date as to whether an appeal to the Pennsylvania Supreme Court will be filed.


Although the Pusl opinion specifically holds that defense counsel is not required to do so, it may be wise to now in automobile accident matters to include a standard paragraph in the New Matter portion of an Answer and New Matter that asserts a right to a credit or set-off in the amount of any previous UIM benefits secured by a plaintiff against any jury verdict that may be entered against the defendant.

Also, the Pusl opinion teaches that the inclusion of a motion to mold the verdict in post-trial motions is a proper vehicle to bring this issue before the court.

I thank Attorney Matt Dempsey for bringing this case to my attention.

Tuesday, October 6, 2009

CAUTION: Lack of Recorded Voir Dire May Preclude Appellate Review of Objections Raised During Jury Selection

In the case of Allen v. Thomas, 976 A.2d 1279 (Pa.Cmwlth. 2009, Friedman, S.J.), the Commonwealth Court held that the lack of a recorded voir dire proceedings precluded appellate review of the claims of an improper limitation by the trial judge of voir dire questioning by the plaintiff's attorney.

The Allen case arose out out of a motor vehicle accident that occurred in a municipal parking garage. In this Philadelphia County case, the local rules required counsel to request a recording of voir dire if they desired the same. Otherwise, the jury selection process was not recorded or transcribed. Plaintiff's attorney did not request a recording in this matter.

After trial, a defense verdict was entered and the plaintiff appealed, in part, on the grounds that the Philadelphia County trial court judge (Senior Judge Jelin) abused his discretion during the jury selection process by refusing to allow the plaintiff's attorney to question the potential jurors regarding their opinions on tort reform.

In his Rule 1925 Opinion on the issue, the trial court judge denied that he had restricted the plaintiff's attorney in any way from asking questions about tort reform during jury selection.

Thus, the appellate court was faced with an attorney asserting that the judge had acted erroneously during voir dire, a trial court judge who denied that he had restricted the attorney's efforts at questioning the jury in any way, and no transcript of the jury selection proceedings to determine who had the more accurate memory of how the events unfolded.

The Commonwealth Court noted that the plaintiff's attorney's attempt to rely upon other portions of the trial transcript that did referenced the ongoing arguments over the voir dire objections were insufficient to create a reviewable record on the issues presented.

In any event, in those portions of the transcripts, the trial judge was noted to repeatedly state on the record to the plaintiff's attorney that the attorney was "entirely inaccurate and...wrong" in his assertions that the trial judge had limited the voir dire questioning.

Elsewhere in the transcript, the trial judge told plaintiff's attorney, "I gave you every opportunity to ask appropriate questions, Counsel. You chose not to do so."

Surely, where the record on appeal only comes down to a judge's word against an attorney's word, an appellate court is more likely to side with the judge, if only to be able to uphold the trial court's decisions and avoid the need for a retrial, thereby furthering the interests of judicial economy in the overburdened court system.

In this case, the Commonwealth Court noted that, in the absence of any record of the actual voir dire questions at issue or the trial court's ruling on the same, the Commonwealth Court was unable to conclude that the trial court made improper rulings or abused its discretion. Accordingly, the trial court's denial of the plaintiff's post-trial motions was affirmed on appeal.





Saturday, October 3, 2009

2009 Lackawanna County Bench Bar Conference - Friday, October 9, 2009

This Friday, October 9, 2009, the 28th Annual Lackawanna County Bench Bar Conference will take place at the Hilton Hotel in Scranton, Pennsylvania from Noon to 4:30 p.m. followed by a cocktail hour.

I will be presenting a 2009 Civil Litigation Update. There will also be a Family Law Update and a Criminal Law Update presented by other attorneys. Judge Vito P. Geroulo will put on a presentation entitled Judicial and Attorney Ethics. There will also be a Judicial Forum to end the conference. No word on who the special guest speaker will be this year.

To register, contact the Lackawanna County Bar Association at 570-969-9161.