Thursday, December 30, 2010

HAPPY NEW YEAR



Wishing you and yours a Happy New Year and all the best in 2011.

Thanks for reading Tort Talk,

Dan


Source of Photo: Image: Filomena Scalise / FreeDigitalPhotos.net

Luzerne County Update

Here's a link to an article by staff writter Michael P. Buffer from today's Citizen's Voice providing an update on the status of the matters surrounding former Judge Toole of the Luzerne County Court of Common Pleas:

http://citizensvoice.com/news/court-suspends-attorney-who-bribed-former-judge-toole-1.1083726


On a Luzerne County related note, former Judge Ciavarella's trial is still on track to begin in February of 2011.

Wednesday, December 29, 2010

Status of Total Offset Method In Pennsylvania

I have received permission from the writers of the Drug and Device Law Blog to copy their below recent December 23, 2010 post of note by David Walk here as a guest post.

I recommend that you check out their blog for excellent updates in this area of the law. Here's a link to their blog:

http://druganddevicelaw.blogspot.com/


Pennsylvania Supreme Court Appears Ready to Reconsider Its Unique Total Offset Method

In almost every jurisdiction in the U.S., an award of damages to compensate an injured plaintiff for wages the plaintiff would have earned in the future must be discounted to present value. In oversimplified form, the basic idea is clear: if you give someone in one lump sum the total amount of wages that the person would have earned over the next 20 years and the person invests it conservatively, that person will have more money after 20 years than the person who worked for 20 years, because the recipient of the lump sum will earn interest in excess of inflation. If you want to compensate the person accurately and put the person in the same position he or she would have occupied after working for 20 years, then you must give the person less than the total of 20 years of wages. If not, the person receives a windfall.

Pennsylvania marches to the beat of a different drummer in many ways, which we have chronicled repeatedly. This is one of them. For 30 years, Pennsylvania has followed its own unique rule called the “total offset method.”


Under the total offset method, a court does not discount the award to its present value but assumes that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating any need to discount the award to its present value. . . . Since over the long run interest rates, and, therefore, the discount rates, will rise and fall with inflation, we shall exploit this natural adjustment by offsetting the two factors in computing lost future earning capacity.

Kaczkowski v. Bolubasz, 421 A.2d 1027, 1036-38 (Pa. 1980). The rule has the virtue of simplicity, but simplicity is not the highest virtue, or else Sarah Palin would be Pope.

We could be charitable and say that Kaczkowski made sense in 1980, when the inflation rate was 13.5%. After all, the Captain and Tennille and leisure suits made sense in 1980 to some people. But in fact, Kaczkowski was criticized from the moment it was decided. See, e.g., Michael T. Brody, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U. Chi. L. Rev. 1003 (1982). The comments from people who actually know something about the relationship between inflation and interest rates have been particularly biting: “Untroubled by economic theory, and characterized by spectacular award error rates, Kaczkowski epitomizes junk science in the courtroom.” Robert F. Pelaez, Pennsylvania’s Offset Rule: Fantasy Masquerading as Economics, 5 J. Legal Econ. 1 (Winter 1995). And, of course, the total offset rule totally overcompensates plaintiffs. One study found that the overcompensation to a young plaintiff with many years of lost wages could approach 100%. Id.

What Kaczkowski did was take a momentary economic blip – the “oil shock” generated inflation spike of 1979-80 – and cast it in the stone of stare decisis. The economic history of the next thirty years demonstrates that the economic assumptions in Kaczkowski are, with all due respect, 100% hogwash. A real interest rate does, in fact, exist. If it didn’t, that is, if inflation always equaled return on investment, then nobody would have much incentive to invest and the economy would have collapsed long ago.

All of this brings us to Helpin v. Trustees of University of Pennsylvania, Nos. 36 & 37 EAP 2009 (Pa. Dec. 21, 2010). Helpin was a breach of contract case brought by a doctor against Penn, and the doctor won an award of lost future income from the profits of a business. For whatever reason (it seems odd to us, but we are loath to second-guess counsel’s litigation strategy without knowing more than what is stated in the opinions), Penn did not ask the Pennsylvania Supreme Court to overturn Kaczkowski. Majority op. at 10 n.3, 17 n.6. Instead, Penn argued that Kaczkowski applied only to lost wages and not to lost profits. The Court rejected that argument and affirmed the damage award. Majority op. at 13-17.

That’s not what’s fascinating about Helpin. What’s far more interesting from our perspective is the dissent.

Even though Penn had purposely refrained from attacking Kaczkowski frontally, three Justices (out of seven on the Court) joined a dissenting opinion that eviscerated Kaczkowski and concluded that “lump-sum awards based on lost future income should be discounted to present value.” Dissent at 1. The dissent noted that most everyone agrees that the inflation rate actually does not totally offset rates on safe investments: “simply because the two rates ‘rise and fall’ together, it does not follow that they are numerically identical.” Id. at 3. The dissent also found that the total offset method was “overly compensatory,” widely criticized, and not required in any other jurisdiction. Id. at 6.

The majority responded to the dissent’s criticisms of the total offset method in a final footnote. Majority Op. at 17 n.6. The majority reiterated that the only question before the Court was whether Kaczkowski should be applied in this context, not whether it should be overturned. Id. The majority stressed that “[t]he instant case does not present an appropriate forum for a consideration of whether Kaczkowski was wrongly decided and ultimately should be overturned.” Id. The majority also noted that Kaczkowski’s flaws were not argued or ruled on below. “Thus, in the absence of any testimony or other evidence of record, it would be imprudent to conclude here that Kaczkowski’s theoretical underpinnings are weak and its basic assumptions are unsupportable.” Id.

In other words, even the majority did not say Kaczkowski was right, only that the issue was not properly presented. That does not bode well for the poor sap who will defend Kaczkowski after all these years when the issue is properly presented.

Here’s what this case means for defense lawyers handling personal injury cases governed by Pennsylvania law: now is the time to ask the Pennsylvania Supreme Court to overturn Kaczkowski. The three dissenting Justices appear poised to reverse this relic from 1980. Reading between the lines of footnote 6 of the majority opinion, one or more Justices in the majority might entertain reconsidering the total offset method if the question were properly presented. Although the ideal case would follow the majority’s suggestion to have “testimony or other evidence of record” showing that “Kaczkowski’s theoretical underpinnings are weak and its basic assumptions are unsupportable,” majority op. at 17 n.6, at least three Justices apparently would not require such a record. If an objection to the total offset method were lodged in the trial court and properly preserved, the basic economic facts that interest rates do not cancel out inflation rates can be established from many sources that the Court should accept.

So, Pennsylvania lawyers, eat your roast beast and figgy pudding or Chinese food, and then come back after the holidays and begin the assault on Kaczkowski. It is time to bring this outdated slice of Pennsylvania law into line with economic reality.

Posted by David Walk

Monday, December 27, 2010

Changes Proposed to Pa.R.C.P. 4003.5 Regarding Expert Discovery

Tort Talkers may recall that, on November 19, 2010, the Pennsylvania Superior Court granted the Plaintiff’s Petition for Re-argument and withdrew its opinion in Barrick v. Holy Spirit (affirming trial court's decision that written communications between counsel and a testifying expert that "materially impact" expert's formulation of his or her opinion are discoverable). To date, a re-argument date has not been set.

In the meantime, it has come to light that the Supreme Court Civil Procedural Rules Committee has drafted Proposed Recommendation No. 248, seeking to amend PA.R.C.P. 4003.5, which pertains to expert discovery.

This Proposed Recommendation from the Supreme Court Civil Procedural Rules Committee brings State practice more in line with Federal Practice. Significantly, it expressly prohibits the discovery of any kind of communications between any attorney and his or her expert.

I am uncertain as to whether this recommendation came about because of the recent changes to the Federal Rules of Civil Procedure in this regard, because of the Barrick decision, or a combination of both events. The proposed Explanatory Note does make reference to the recent amendments to the Federal Rules of Civil Procedure on this topic.

Anyone wishing to view Proposed Recommendation No. 248 of the Supreme Court of Pennsylvania Civil Rules Committee may click on this link:

http://www.aopc.org/NR/rdonlyres/B81D5E75-68B5-45C8-849E-15FA20F82339/0/Rec248civ.pdf

There appears to be at least two schools of thought on this issue. Those falling in one group fear that the ruling of Barrick, allowing for the discovery of communications between attorneys and experts may create a slippery slope that may lead to the erosion of the protections that the attorney work product doctrine provides to an attorney's thoughts, conclusions, and mental impressions regarding strategy or the merit of any claim or defense. The thought is that attorneys should be able to freely litigate their cases to the benefits of their clients, including the fine tuning of the opinions of their expert witnesses, without fear of the attorney's litigation strategy being laid bare for all to see in the discovery process.

The other school of thought believes that the ruling of Barrick is a correct decision that prevents any tampering with the litigation process by over-zealous attorneys, plaintiff or defense, seeking a favorable result for their clients. The recognized purpose of a jury trial is to uncover the truth of the claims and defenses pled and requires a transparency in the process, which includes, in part, the ability of a party to be able to cross-examine an opponent's experts as to whether or not the expert's opinion is really the opinion of the expert or was, instead, the opinion suggested to the expert by the attorney. The thought is that , in order to cross-examine the expert in this regard, discovery of the communications between the attorney and the expert is necessary. In the end, a tangential benefit may be that the knowledge that communications between the attorney and the expert are discoverable may prevent attorneys from attempting to influence the expert's opinion in this truth-seeking process.

What do you think? Feel free to click on the word "comment" below this post to list your thoughts.

I thank David Cole, Executive Director of the Pennsylvania Defense Institute, for bringing this matter to my attention.

Tuesday, December 21, 2010

Happy Festivus


According to a December 13, 2010 ABA Journal article by Martha Neil, the holiday of Festivus, made famous by Frank Costanza in Seinfeld, was recognized as a valid holiday in a court Order issued by a California Superior Court in a case involving a prison inmate's religious rights. Here's the link to the article:




For all you closet Festivus celebrators, you now have the recognition you have been looking for with the Order issued by the California Superior Court. Feel free to break out your unadorned aluminum Festivus pole ("I find tinsel distracting.") into the living room and publicly practice your "Airing of Grievances," and "Feats of Strength."

Happy Festivus for the Rest of Us.

Monday, December 20, 2010

Punitive Damages Allowed for Cell Phone Use During Car Accident?


Tort Talkers may recall that I have previously written on the ability of plaintiffs to pursue punitive damages in automobile accident cases based upon the allegation that the defendant driver was using a mobile phone as a phone call, to text, or surf the internet while driving. To date, such a claim has not been recognized in Pennsylvania as far as I am aware--here's a link to my previous article on the topic: http://www.jdsupra.com/post/documentViewer.aspx?fid=3739c741-1e0b-4365-9398-53b9117a48cf

It has now come to my attention that Judge Michael E. McCarthy of the Allegheny County Court of Common Pleas has allowed such a claim to go forward beyond the Preliminary Objections stage in an Order issued without an Opinion in the case of Deringer v. Li, No. GD10-019081 (Allegh. Co. Dec. 16, 2010).

In this matter, the Plaintiff alleged, on information and belief, that the Defendant was using a mobile device at the time he rear-ended a motorcycle on which was the husband and wife Plaintiffs. The motorcycle was allegedly stopped to make a left turn.

The Defendants filed Preliminary Objections to the Plaintiffs' claim for punitive damages based upon the allegedly reckless conduct of the Defendant in utilizing a mobile communications device while driving. The defense attempted to argue that such conduct only amounted to negligence and did not support any claim for punitive damages. The Defendant also argued that the Pennsylvania legislature has not made cell phone use while operating a car illegal.

It is noted that, in overruling the Preliminary Objections filed by the Defendant, the Allegheny Court of Common Pleas did note in its Order that "The arguments may be more appropriately raised and addressed by motion for summary judgment."
Anyone desiring a copy of the Order or the Briefs in this matter may contact me at dancummins@comcast.net.


UPDATE: If you look at the "comments" (click on the word "comment" below), you will note a reference to the docket number of another case allowing such a claim to proceed beyong the Preliminary Objections stage in Fayette County.

Friday, December 17, 2010

SEASON'S GREETINGS


I send my SEASON'S GREETINGS and Best Wishes to you and yours for a Happy Holiday Season and a Happy New Year!


Thanks for reading and following TORT TALK--I hope you find it informative and, at times, even entertaining.


Think warm and take care,


-Dan

Wednesday, December 15, 2010

Philadelphia Lands on Top of the Judicial Hellholes Report

Philadelphia, Pennsylvania has been selected as the Number 1 "Judicial Hellhole" by the American Tort Reform Foundation apparently for its decidedly plaintiff-oriented bent and allegedly excessive verdicts. Here is a link to the Report: http://www.judicialhellholes.org/.

I don't practice in Philadelphia so I can not comment on this report and I do not endorse it in any way--I just pass it along should anyone be interested in reading what they have to say about the Philadelphia court system.

Tuesday, December 14, 2010

Former Ciavarella Case Being Litigated Back in Luzerne County

A case entitled Joseph v. The Scranton Times, No. 3816-Civil-2002 (Luz. Co. Dec. 13, 2010, Van Jura, J.), formerly handled by Mark A. Ciavarella when he was a Luzerne County Judge, is back at the trial court level and is being litigated now in front of Judge Joseph Van Jura.

The Citizens’ Voice matter stems from a verdict Ciavarella entered in favor of Joseph following a non-jury trial in 2006. The case centered on a series of articles the newspaper ran in 2001 regarding searches that were conducted at the home and business of Joseph and William “Billy” D’Elia. Joseph was never charged with any crime in connection with the searches. He filed suit against the newspaper, alleging the articles damaged his reputation.

You may recall that the Pennsylvania Supreme Court previously overturned Ciavarella's $3.5 million defamation verdict against The Citizens’ Voice newspaper and ordered a new trial, ruling there was a “pervasive appearance of impropriety” in how the case was assigned to and handled by former Luzerne County judge Mark Ciavarella.

On remand for a new trial, the case was assigned to Judge Van Jura in Luzerne County. With his December 13, 2010 Opinion and Order, Judge Van Jura addressed an Omnibus Motion for Summary Judgment filed on behalf of all of the Defendants.

After applying the facts to the law on a variety of defamation-type issues, the court granted the Defendants' Motion in part and denied it in part.

Anyone desiring a copy of this Opinion by Judge Van Jura, which contains thorough recitations of the law applicable to defamation actions, may contact me at dancummins@comcast.net.

Saturday, December 11, 2010

Delay Damages Above Policy Limits Allowed in Post-Koken UM Case

In a case that is sure to grab headlines, the Pennsylvania Superior Court handed down a decision on Friday, December 10, 2010 holding that a Plaintiff may secure delay damages in a Post-Koken case against a UM carrier even though the amount of such damages goes above the UM limits available under the policy.

In the case of Marlette v. State Farm and Jordan, 2010 WL 5030894 (Pa.Super. Dec. 10, 2010, Musmanno, Bender, Bowes, J.J.)(Opinion by Musmanno, J.), the Plaintiff, a Florida resident, was injured in a car accident that occurred in Pittsburgh when his vehicle was hit by a vehicle being driven by Defendant Jordan, who was uninsured at the time.

The Plaintiff had $250,000.00 in uninsured (UM) motorist coverage with State Farm.

According to the Opinion, pursuant to the terms of State Farm's post-Koken policy requiring a lawsuit to resolve any disputes as opposed to arbitration, the Plaintiffs filed this action in Allegheny County, naming Jordan and State Farm as Defendants.

The Plaintiffs sought damages for Mr. Marlette’s bodily injuries and lost wages arising out of the accident and Mrs. Marlette’s loss of consortium. Liability was uncontested and the case proceeded to trial on the issue of damages.

After a two-day trial, the jury returned a verdict in favor of the Plaintiffs, awarding Mr. Marlette $550,000 and Mrs. Marlette $150,000.

The trial court then molded the verdict downward to reflect the Marlettes’ UM policy limits of $250,000 and also applied a credit of an earlier payment of $16,693.02 made by State Farm, resulting in a verdict of $233,306.98 for the Plaintiffs.

Thereafter, the Plaintiffs filed a Motion for Delay Damages pursuant to Pa.R.C.P. 238. The Plaintiffs requested that the delay damages be calculated based upon the $550,000.00 award by the jury. State Farm argued that its exposure was limited to its policy limits and that, therefore, no delay damages should be allowed.

The trial court awarded delay damages in the amount of $28,223.76, which was calculated by applying the appropriate interest rates to the molded verdict of $233,306.98. The Plaintiffs and State Farm both appealed.

On appeal, the Superior Court rejected State Farm's contention that its exposure was set by its policy limits. In so ruling, the Court pointed to analogous decisions, that did not involve the policy limits issue, supporting the awarding of delay damages beyond agreed upon caps.

The Marlette Court also noted that State Farm's current policy language arguably allowed for delay damages beyond the policy limits in the UM context. The Court wrote:

"Turning to the language of the Policy, we note that it imposes a limit on damages for bodily injury only. Pre-award interest or delay damages are not specifically mentioned in the UM context; however, the Policy provides that they are recoverable in the liability context. Under the policy provisions regarding UM coverage, State Farm agreed to pay “damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” The Policy at 18 (emphasis in original). This language places UM damages recoverable from State Farm on the same footing as damages for third party liability, which generally includes damages for delay and costs. Arguably, by placing State Farm on the same footing as the third party tortfeasor, vis a vis the insured, the Policy allows delay damages in excess of the policy limits. In any event, we discern no language in the Policy that can be construed as limiting liability for delay damages or pre-award interest in the UM context. State Farm’s failure to specifically mention interest or delay damages in the Policy it drafted renders it ambiguous on this point, and, therefore, it must be construed against the insurer. See Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983). Since there is no language in the Policy that prohibits an award of delay damages in excess of the UM policy limits, nor is such an award precluded by law, State Farm’s cross-appeal fails."

Looking at the language of Rule 238 and noting the policy considerations behind the Rule, including the encouragement of settlements, the Superior Court also agreed with the Plaintiff's contention that the calculation of the delay damages award should be based upon the jury's original verdict and not the lower, molded verdict.

As such, the Superior Court remanded the case back to the trial court for a proper calculation of the delay damages based upon the jury's original verdict.

I will keep an eye on this case to see if it continues up the appellate ladder and I will report any updates I come across.

In the meantime, it remains to be seen whether the carriers will move to limit their exposure by revising their policy language to expressly provide that delay damages will not be paid in underinsured or uninsured litigation matters or, in the alternative, will only be paid up to the amount of the available policy limits.

The Marlette v. State Farm and Jordan case may be viewed online by clicking this link:

http://www.aopc.org/OpPosting/Superior/out/A36031_09.pdf

Wednesday, December 8, 2010

Defense Verdict Secured in Luzerne County Auto Accident Case

I am happy to report that I was able to secure a defense verdict yesterday (12/8/10) in favor of my client in the automobile accident case of Brunson v. Caldwell which was tried over two days in front of a jury and presiding Judge Joseph Cosgrove in the Luzerne County Court of Common Pleas.

Basic Facts:

Seven (7) years ago, on September 29, 2003, the Defendant was traveling on Coal Street and came upon a line of traffic and came to a stop. After a minute or two, and after seeing other cars in the line of traffic move out to the left and proceed up to the left turn lane a couple hundred yards ahead, the Defendant decided to do the same.

As she pulled out and began to proceed up the lane, almost simultaneously, i.e. a second or two later, the Plaintiff's vehicle came out from a stop sign on a side street and attempted to make a left hand turn across the path of the Defendant's vehicle. A low speed collision resulted.

Both parties agreed that, under the Motor Vehicle Code, the Defendant's maneuver of coming out of the line of traffic to move up ahead was permitted as long as it was safe to do so.

The now 36 year old Plaintiff argued that the Defendant was negligent in that she pulled most of her vehicle across the double yellow line as she pulled ahead and that it was not safe for her to have attempted this maneuver given that the Plaintiff was making a left hand turn.

We argued on the defense that the Defendant was adamant that she remained in her lane of travel, which was very wide, as she did this maneuver and that the Plaintiff's vehicle came out in such a sudden fashion as the Defendant had no opportunity to avoid the accident.

We also argued that, under the law, it was of no moment that the Defendant allegedly crossed the double yellow line during her maneuver. It was our position that the Motor Vehicle Code allowed her to do this as long as it was safe to do so. We also argued that the evidence supported the Defendant's testimony that it was safe for her to proceed as she did--i.e., since the Plaintiff proceeded with his left hand turn, there must have been no vehicles coming up in the opposite direction at the same time the Defendant was doing her maneuver.

We also asserted on the defense, that not only was the Defendant not negligent, but that the Plaintiff's negligence in coming out from a stop sign and making a left turn when it was not safe to do so was the true cause of the accident.

Damages Claims:

The Plaintiff primarily asserted neck and low back injuries. The Plaintiff also claimed, through expert testimony by neurosurgeon, Dr. David Sedor, that he needed surgery on both his cervical spine and lumbar spine.

The Defense asserted, through expert testimony by orthopedic surgeon, Dr. Michael P. Banas, that the Plaintiff sustained soft tissue sprain/strain injuries to his neck and back along with an aggravation of pre-existing degenerative disc disease in the cervical spine. Dr. Banas asserted that the Plaintiff was not a surgical candidate and also confirmed that none of the Plaintiff's other physicians had found him to be a surgical candidate.

It was also asserted by the defense on cross-examination of the Plaintiff that the Plaintiff was not as hurt as alleged. The force of the impact was minimized (no airbags activated in either vehicle) and pictures showing minimal property damages were shown to the jury.

It was additionally established that the Plaintiff did not seek out any medical treatment until about a week after the accident. Also, after an initial course of treatment, there was a three and a half year gap in any treatment before the Plaintiff went to see Dr. Sedor for the first time. There was also another one and a half year gap in treatment between the Plaintiff's last treatment with Dr. Sedor and the date of trial.

The jury was also advised through cross-examination efforts, that the Plaintiff had continued to work over the past seven years since the accident as the owner-operator of his own hair salon, had been on trips to multiple trips to both Europe and Florida, and had even been on one or two roller coasters on a trip to Great Adventure in New Jersey.

The Verdict:

The jury was out in deliberations for about 40 minutes. When they came back, they announced that they had unanimously answered "No" to the first question on the verdict slip, i.e. "Was the Defendant negligent?"





Of course, past results are no guarantee of future results and each case must be handled on its own merits.

Friday, December 3, 2010

2010 Year-end Review Article (Non-Auto Law Context)

Defense-Oriented Decisions Dominated 2010's Biggest Non-Automotive Cases

by

Daniel E. Cummins


Pennsylvania Law Weekly/The Legal Intelligencer
November 23, 2010

Author's note: In the first of a two-part column, I review the 'Tort Talk' Top Ten cases and trends of 2010 in the non-automobile law context. In next month's column, I plan to do the same for automobile law.


As the plaintiff's bar can attest, in either context, 2010 was a tough one for them given the number of defense-favorable decisions handed down over the past year.

Perhaps leading the pro-defense wave in 2010 was the news of further decline in medical malpractice cases.

According to an April 27 article in The Legal , medical malpractice case filings and verdicts in 2009 revealed a continuing decline in the number of suits filed against health care providers in Pennsylvania. The numbers, secured from the Pennsylvania Supreme Court, dropped for the fifth straight year.

More specifically, the article noted that there were only 1,533 such filings in 2009, which was a 43.9 percent decline from the base years used of 2002-2003.

Some have attributed the decline in the number of cases to the rule requiring plaintiffs to produce a certificate of merit before being allowed to pursue the case. Another factor cited was the effort by the courts to prevent forum shopping by plaintiffs. Still another factor limiting the number of new suits was the overwhelming litigation costs to pursue medical malpractice litigation.

The plaintiffs bar has lamented that the ripple effects of the decreasing number of medical malpractice claims include the inability of legitimate victims of malpractice to obtain justice and compensation for their injuries. Also, there is a fear that, without accountability for errors by those in the practice of medicine, opportunities for correction of unacceptable medical care may be lost.

Expert Witnesses

One of the more recent state Supreme Court decisions, Freed v. Geisinger Medical Center, is also one of its most notable for the impact it could have on expert witnesses.

In that case's Sept. 29 opinion, the court, after having granted a rare re-argument on the issues presented, reaffirmed its own previous decision that nurses may testify as expert witnesses on causation issues in a negligence action in which it was asserted that a breach of the accepted nursing standard of care resulted in the patient's condition.

More specifically, the court reaffirmed its prior holding "that an otherwise competent and properly qualified nurse is not prohibited by the Professional Nursing Law, 63 P.S. §§ 211 et seq., from giving expert testimony at trial regarding medical causation."

The Freed decision was followed in a May 28, 2010 memorandum and order in Earls v. Sexton and Landstar Ranger, Inc. , in which U.S. District Court Judge for the Middle District of Pennsylvania James M. Munley also ruled that a nurse would be allowed to testify on causation at trial in a trucking accident case.

The impact of this decision on civil litigation matters, i.e., whether nurses will actually be used as expert witnesses more frequently — perhaps as a costs-savings measure — remains to be seen.

Expert Discovery

Less than two weeks before the high court's decision in Freed , a Superior Court panel addressed an important issue of first impression pertaining to expert discovery. In a Sept. 16 opinion, the panel rejected a plaintiff's contention that letters and e-mails discussing trial strategy sent between a party's expert witness and that party's attorney are discoverable were protected by the attorney work product doctrine.

The plaintiff argued in Barrick v. Holy Spirit Hospital that those documents need not be produced as they were attorney work product between the doctor and the plaintiff's attorney regarding the doctor's role as an expert witness and the plaintiff's attorney's suggestions as to how the doctor should formulate his opinion in the case.

Rather, the court found that it was "compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications."

In so ruling, the panel adopted a bright line rule in favor of the production of such written communications to a trial expert by counsel. The court stated that litigants are entitled to discover whether an expert's opinions are his own or a mere parroting of what he or she was told by counsel.

It is noted that there is currently a petition for re-argument en banc filed by the plaintiff pending before the Superior Court in this matter. It should also be noted that this author wrote an amicus brief in the case on behalf of the Pennsylvania Defense Institute.

Mental Health Records

The issue presented in the Superior Court case of Gormley v. Edgar , was whether a Philadelphia trial court judge correctly ruled that the defense was entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims as a result of a motor vehicle accident.

The plaintiff argued that she was only pleading the ordinary emotional distress claims attendant with a personal injury action.

The defense argued that, once the plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress, anguish and anxiety, the discovery of the pre-accident record should be allowed.

The panel ruled that, where the plaintiff made allegations in the complaint that she sustained "anxiety" as a result of the accident, which is a recognized mental health disorder, the plaintiff put her mental health status at issue. As such, the Superior Court found that the defense was entitled to discovery of the plaintiff's pre-accident mental health treatment records.

In the opinion, the panel did also note that the ordinary and general averments of shock, mental anguish and humiliation, which are routinely pled in personal injury complaints in Pennsylvania, were not sufficient to place a plaintiff's mental condition at issue or cause a waiver any privilege against the production of mental health records.

In the interest of full disclosure, this author wrote an amicus brief on behalf of the Pennsylvania Defense Institute in this case.

Social Networking Discovery

In the novel Jefferson County case of McMillen v. Hummingbird Speedway Inc. , the court held that where a person's social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

During discovery in this car accident matter, defendant Hummingbird Speedway Inc., in its interrogatories, inquired if the plaintiff belonged to any social networking computer sites. The defendant also requested the name of the site, the plaintiff's user name, login name, and password.

The plaintiff disclosed that he belonged to Facebook and MySpace, but maintained that his user name and login name information were confidential and should not have to be provided. The defense responded with a motion to compel.

The trial court in McMillen pointed to the liberal rule in Pennsylvania that a party may obtain discovery regarding any information that is relevant and not privileged.

The court found that the plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge emphasized that these social networking websites themselves expressly advised the users of the sites of the possibility of the disclosure of the information posted on the sites.

Accordingly, the court found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the plaintiff's sites in McMillen was found to be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal of the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

Assumption of Risk

The continuing validity of the assumption of risk doctrine in Pennsylvania was noted in an April Superior Court decision, Montagazzi v. Crisci .

Montagazzi involved a 15-year-old minor plaintiff who was injured from lighting the fuse of an improvised explosive device that he and the other minor defendants created. The defendants defended in part under the assumption of risk doctrine.

A Superior Court panel did not accept plaintiffs' argument that the doctrine of voluntary assumption of risk should be abolished. The panel noted that it was without authority to abolish the doctrine and left that decision for the Supreme Court on another day.

The appellate court noted that the injured minor conceived and executed the design for the improvised explosive device, procured the wick that served as a fuse, allowed it to be lit, and held it in his hand on two successive occasions before he was injured.

As such, the Superior Court noted that the injured party proceeded in the face of a known danger of explosion and assumed the risk that the device would explode, i.e., the injured party voluntarily and knowingly exposed himself to the very danger the device was supposed to do. Thus, any liability on the part of the defendants was found to be negated by the assumption of risk doctrine.

Trivial Defect Cases

In a May Superior Court decision, Mull v. C.S. Ickes, a panel of the court reversed the entry of summary judgment in favor of the defendants, finding that a defect in their sidewalk was not so obviously trivial as a matter of law to allow for a dismissal of the plaintiff's case.

In Mull, the plaintiff was walking on the sidewalk in front of the subject premises as she had done many times before. On the day of the incident, snow had fallen but did not cover a 2-inch gap between slabs of sidewalk in the area of the plaintiff's fall.

The plaintiff testified that she was caused to fall and be injured by the alleged defect in the sidewalk as opposed to the snow. The plaintiff sued and defendants moved for summary judgment, contending that the defect in the sidewalk was trivial as a matter of law.

In reviewing the matter, the Superior Court noted that there was no definite formula to determine whether the defect was trivial as a matter of law. Thus, if the defect was not obviously trivial, the question of negligence had to be submitted to the jury.

Here, the gap measured approximately two inches, and there was a difference in height of approximately one-and-one-half inches between the slabs of concrete that surrounded the gap.

Viewing this evidence in favor of the plaintiff as required under the standard of review, the Superior Court held that the defect was not indisputably trivial.

In a separate unpublished decision from September, Melchiorre v. Lords Valley Xtra Mart , a panel of the court relied extensively on the Mull decision for the law on trivial defects to again overturn the entry of a summary judgment against a plaintiff.

In Melchiorre , a plaintiff tripped on a one-inch lip of a concrete pad that was surrounded by asphalt at a gas station. The Superior Court noted that, its review of the evidence, which showed that the lip was of slightly inconsistent height all around the pad, compelled the conclusion "that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law."

Settlements & Liens

In the case of McKinney v. PHA, a federal court judge for the Eastern District of Pennsylvania ruled that a settling plaintiff could not be automatically required to reimburse the Pennsylvania Department of Public Welfare for 100 percent of her Medicaid expenses.

In this case, DPW was seeking to recover the full amount of its $1.2 million lien in a case involving a $12 million settlement. DPW was relying upon a state law that allegedly established a presumption in Pennsylvania that half of a plaintiff's settlement should be properly attributed to the reimbursement of medical expenses where required.

The court rejected the department's position and noted that the "Department of Public Welfare's proposed rule ignores the reality of settlement," which necessarily involves compromise on the part of all parties involved in a matter.

The McKinney court recommended that DPW's lien recovery be determined in such cases by the trial judge assessing "the factors that would have influenced the parties' settlement position and [making] an ultimate determination of what portion of the settlement represents compensation for past medical expenses."

In this matter, the deciding judge, who had also presided over the proceedings and the settlement talks, concluded that the plaintiffs had settled for two-thirds of the total value of the case. As such, the court ruled, the department was entitled to two-thirds of its $1.2 million dollar lien, minus fees and costs.

Insurance Reimbursement

In an August decision, American and Foreign Insurance Company v. Jerry's Sport Center Inc. , the Pennsylvania Supreme Court addressed the issue of whether, following a court's entry of a declaratory judgment that an insurance company had no duty to defend its insured, that insurance carrier was entitled to be reimbursed for those amounts it already paid out to defense counsel for the defense of its insured in the underlying suit.

The carrier was seeking such reimbursement from its insured on the basis of a series of reservation of rights letters as opposed to any express language in the insurance policy allowing for any such reimbursement.

In its decision, the high court held that "an insurer is not entitled to be reimbursed for defense costs absent an express provision in the written insurance contract." Here, there was no such provision in the policy and, therefore, no reimbursement was allowed.

While this case involved a corporate insured, the decision appears to be a victory for the "little man" insured, protecting them from having to pay back insurance companies any defense costs in the event of a decision in favor of a carrier in a declaratory judgment action on the coverage/duty to defend issue.

Attorney-Client Privilege Cases

On January 29, 2010, the Pennsylvania Supreme Court issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mutual Insurance Co. v. Fleming. Only four justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves. Both ruled on the case when they were on the Superior Court. The court was also short a justice at the time.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Thomas G. Saylor and Chief Justice Ronald D. Castille voted to reverse. Under the rules of the court, the 2-2 split means that the Superior Court decision on the attorney-client privilege issue was affirmed.

The Superior Court in Fleming had ruled that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around.

More recently, in an order handed down March 16, 2010, the court granted allocatur in the case of Gillard v. AIG Insurance Company to revisit the issue. It will be interesting to see how this one plays out.

At first glance, it appears academic that communications from the attorney to the client should also be considered privileged — but you never know.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com .

Thursday, December 2, 2010

Scranton Attorney Robert D. Mariani Appointed As U.S. Middle District Federal Court Judge

In a December 2, 2010 article, the Scranton Times reported that President Barack Obama nominated Scranton labor attorney, Robert D. Mariani, to the federal bench Wednesday, as his choice for one of the open spots as U.S. District Court judge for the Middle District of Pennsylvania.

If confirmed by the Senate, Attorney Mariani would replace District Court Judge James M. Munley, who in January 2009 took senior status, and continues to work on a part-time basis.

In other Pennsylvania federal court news, Pittsburgh attorney Mark Raymond Hornak was President Obama's nominee for the Western District of Pennsylvania.


Here is a link to the entire article by Libby A. Nelson:

http://thetimes-tribune.com/news/obama-nominates-scranton-attorney-to-district-judge-position-1.1071544

Wednesday, December 1, 2010

A RECENT RUN OF POST-KOKEN DECISIONS

Sehl v. Neff and State Farm (Philadelphia County)

Tort talkers may recall that I previously reported on the Philadelphia County Court of Common Pleas case of Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009, Allen, J.). In that case, the issue of proper venue of a post-Koken case was raised. Although the accident and the residents of the third party tortfeasor were located in Montgomery County, the Plaintiff filed suit in Philadelphia under an argument that the UIM carrier, State Farm, regularly conducted business in Philadelphia County.

In its Order, the Sehl court sustained the tortfeasor Defendant’s Preliminary Objections on the basis of improper venue. Now, the Court has just handed down its Rule 1925 Opinion outlining its rationale in support of this Order.

In its Rule 1925 Opinion, the Sehl court noted that, while the venue Rule 1006 (c) provides, in relevant part, that “an action to enforce a joint or joint and several liability against two or more Defendants… may be brought against all Defendants in any county in which the venue may be laid against anyone of the Defendants…,” the post-Koken case before the Sehl court did not involve an action to enforce a joint or joint and several liability.

The Sehl case is on its way up to the Pennsylvania Superior Court. Note also that the same issue is going up on appeal in the separate cases of the Philadelphia County matter of Thomas v. Titan Auto Ins., Nationwide Ins. Co., Jones, and Briel, March Term 2010 No. 03050 (May 10, 2010, Tereshko, J.) and the Luzerne County case of Wissinger v. Brady, Laubach, and State Farm, No. 3792-Civil-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.).

Anyone desiring a copy of the Rule 1925 Opinions in the Sehl case or the Wissinger case may contact me at dancummins@comcast.net.

I thank Attorney John McGrath of the Philadelphia law firm of Palmer & Barr, P.C. for bringing this Opinion to my attention.


Loiacono v. Moraza and Selective Ins. Co. (Pike County)

On October 25, 2010, the Honorable Joseph F. Kameen, P.J. of the Pike County Court of Common Pleas issued a post-Koken Order on the issue of severance in the case of Loiacono v. Moraza and Selective Insurance Company, No. 902-2010-Civil (Pike Co. Oct. 25, 2010, Kameen, P.J.).

In this post-Koken case, the Plaintiff filed a single lawsuit containing third party negligence claims against the tortfeasor Defendant and a claim for uninsured and/or underinsured motorist benefits against Selective Insurance.

The tortfeasor Defendant filed Preliminary Objections in the form of a Motion to Sever the Claims against him from the claims against the UM/UIM carrier. The Plaintiff responded by filing Preliminary Objections to the tortfeasor’s Preliminary Objections asserting that they were untimely.

Judge Kameen granted the Plaintiff’s Preliminary Objections to the tortfeasor’s Preliminary Objections noting that the Pike County Court of Common Pleas “has an established general policy of granting Preliminary Objections to untimely Preliminary Objections.”

However, the Court went on to note that, under Pa. R.C.P. 213(b) the Court by its own motion, or on the motion of any other party, may order separate trials of different causes of actions or issues.

Judge Kameen emphasized that under Pa. R.E. 411 evidence of insurance is generally not admissible in a civil trial. The court stated that, allowing this case to proceed to trial on a consolidated fashion may impermissibly bring the issue of insurance into play at trial. As such, Judge Kameen “reserve[d] [the] right to severe Plaintiffs’ claims against [the tortfeasor Defendant] from Plaintiffs’ claim against Selective to a future date upon motion of either party or sua sponte."

Anyone desiring a copy of this Order/Opinion may contact me at dancummins@comcast.net.



Jordan v. White, Gonzales, and Erie Insurance (Erie County)

I also recently learned of a post-Koken case out of Erie County in which the Court denied a request for severance and kept the UIM/UM claims consolidated with the third party claims. In the case of Jordan v. White, Gonzales, and Erie Insurance Exchange, No. 15540-Civil-2009 (Erie Co. October 28, 2010, Garhart, J.), the Court denied Preliminary Objections by the UIM/UM carrier in this regard.

Although the Preliminary Objections were overruled at this stage, the Court did note in its Order that it was “reserving ruling on whether to sever those claims from the tort claims until after the completion of discovery.” As such, the Erie County Court of Common Pleas was at least allowing this case to proceed in a consolidated fashion through discovery.

Anyone desiring a copy of this Order (without Opinion) case may contact me at dancummins@comcast.net

I send thanks to Plaintiff’s attorney Sue A. Beck, Esquire of the Erie, Pennsylvania law firm of Shapira, Hutzelman, Berlin, Ely, Smith & Walsh for forwarding this Order to my attention.



Joseph v. Perrotta and State Farm (Lawrence County)

I have been made aware of a post-Koken case out of Lawrence County, Pennsylvania which can be cited as Joseph v. Perrotta and State Farm, No. 10457 of 2010 (Lawrence Co. Nov. 19, 2010, Cox, J.).

This case actually involved the novel issue of a Motion to Consolidate filed by the UIM carrier, State Farm Insurance Company.

It is noted that the State Farm automobile insurance policy typically requires the Claimant to join the third party tortfeasor in any litigation being pursued against State Farm as the UIM carrier.

This case was originally instituted by the Plaintiff as two separate lawsuits under separate docket numbers, one against the tortfeasor Defendant and one against the UIM carrier. State Farm filed a Motion to Consolidate the cases.

In an Order dated November 19, 2010, Judge J. Craig Cox of the Lawrence County Court of Common Pleas granted the Motion to Consolidate. The Order noted that the cases shall be consolidated at least through discovery. The Court noted that any party could move at a later time to sever the matter for trial if desired.

I thank the prevailing defense attorney, Joseph R. Guthridge of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP, for bringing this case to my attention.

Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

Tuesday, November 30, 2010

PennDOT Not Liable for Shoulder of Roadway

In the recent case of Lambert v. Katz, 2010 W.L. 4596319 (Pa. Cmwlth. November 15, 2010), PICS No. 10-3481 the Commonwealth Court affirmed the Berks County trial court’s entry of summary judgment in favor of PennDOT in a claim involving the deaths of a motorist and a passenger following an accident where the motorist skidded out of control, crossed over guard rails, struck a tree, and slid down an embankment.

In reaching its decision, the Commonwealth Court held that allegedly out-dated guard rails and the Department’s alleged failure to maintain them did not create a dangerous condition on Commonwealth real estate so as to come within the real estate exception to sovereign immunity.

The Court also held that PennDOT did not have any duty to widen the shoulder. The Plaintiffs have presented an expert report which asserted that the motorist possibly would have been able to recover from losing control of his vehicle had the shoulder of the roadway been 10 feet wide.

Although the court agreed that PennDOT had a duty to design and construct roadways in a manner that is safe for their intended and reasonably foreseeable purposes, the Court concluded that, since the shoulder of a highway is not an area on which vehicles are intended to travel, PennDOT could not be held liable in this matter for allegedly failing to construct a wider shoulder.

A copy of this case can be secured from the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above-noted PICS number.

Source “Commonwealth Court: Highway Shoulders Not Part of ‘Roadway’” by Leo Strupczewski. The Legal Intelligencer (November 23, 2010).

Another Multi-Million Verdict by Ciavarella Overturned

In what has been described as a "sharply worded" opinion, the Pennsylvania Superior Court has handed down a decision overturning a $3.4 million dollar legal malpractice jury verdict that former Judge Mark A. Ciavarella entered in favor of a client of attorney Robert J. Powell based, in part, on ties between the two that amounted to "judicial impropriety."

Here's a link to an article on the decision from today's Citizen's Voice:

http://citizensvoice.com/news/superior-court-overturns-ciavarella-ruling-in-malpractice-case-1.1070553


Here is a link to the Superior Court's Opinion in the case of Slusser v. Laputka, Bayless, Ecker & Cohn, P.C. et al., 2010 Pa.Super. 210 (Pa.Super. Nov. 29, 2010, Allen, Mundy, Colville, JJ.)(Opinion by Colville, J.):

http://www.aopc.org/OpPosting/Superior/out/a30038_10.pdf



This case is the second case handled by Ciavarella that is being sent back for a new trial. In November 2009, the Pennsylvania Supreme Court overturned a $3.5 million verdict Ciavarella issued in the non-jury trial of Thomas Joseph vs. The Citizens’ Voice newspaper based upon evidence the case had been improperly steered to Ciavarella. That case remains pending in the Luzerne County Court of Common Pleas.

Judge Correale Stevens Elected President Judge of Pennsylvania Superior Court


Earlier this month, Judge Correale F. Stevens, who hails from Northeastern Pennsylvania, was elected President Judge of the Superior Court. Among his plans as President Judge is to arrange for a Superior Court argument day to take place at Temple Law School and the Dickinson School of Law in 2011 for educational purposes.


Source: "Elected to Lead Superior Court, Stevens Focuses on Communication" by Leo Strupczewski, The Legal Intelligencer, November 30, 2010.

Pennsylvania Supreme Court to Consider Payment of Prorated Deductibles in Property Damage Subrogation Cases


The Pennsylvania Supreme Court has granted allocatur in the case of Jones v. Nationwide Property and Casualty Insurance Company, 2010 WL 4643224 (Pa. Nov. 17, 2010), on the issue of whether a car insurer can repay only a prorated portion of an insured's deductible when recouping expenses through subrogation from a third party at fault.

The Court more specifically framed the questions presented, as follows:

AND NOW, this 17th day of November 2010, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner are:

(1) Does Pennsylvania law require that a party suffering damages be made whole before an insurer is entitled to subrogation?

(2) Does the Pennsylvania Insurance Commissioner have the authority to promulgate a regulation regarding allocation of subrogation proceeds between an insurance company and its insured following subrogation recovery?

(3) Is the Pennsylvania Insurance Commissioner's regulation allowing insurers to allocate subrogation proceeds on a pro rata basis void because it violates Pennsylvania substantive common law, the “made whole” doctrine?


Source: "State Supreme Court Takes Case on Prorating Dedectibles" by Amaris Elliott-Engel, The Legal Intelligencer, November 30, 2010.

New Jurisdictional Limit ($12,000) for District Magistrate Civil Matters

Governor Rendell signed HB 2172 on November 23, 2010. This bill raises the jurisdictional limits of magisterial district courts from $8,000.00 to $12,000.00 in civil cases, exclusive of interest and costs. As in the past, a Plaintiff may waive that much of his/her claim to bring the case into the district magistrate court, but will not be limited to that amount on appeal should a defendant appeal.

It is believed that this new jurisdictional limit goes into effect in 60 days, i.e. around January 22, 2011.

I send thanks to District Magistrate Justice James A. Gibbons, Esquire of Clarks Summit, Pennsylvania for this tip.

Sunday, November 28, 2010

Revisions to Fed.R.C.P. 26 Go Into Effect on December 1st

Revisions to Rule 26 of the Federal Rules of Civil Procedure take effect on December 1, 2010, resulting in a significant change in the long-standing federal court procedure regarding the discovery of expert witness reports.

After December 1, Rule 26 will no longer require full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the Rule’s last revision back in 1993.

Under the new Rule, these types of communications will now come under the protection of the work-product doctrine. The new Rule will prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still permitted is the full discovery of the expert’s final opinion and of the facts or data used to support the opinions.

It is noted that this same issue is still under review in the state appellate court here in the Commonwealth of Pennsylvania with the recently allowed re-argument en banc of the case of Barrick v. Holy Spirit Hospital.

The first time around, the Pennsylvania Superior Court ruled that attorney-expert communications were discoverable--that decision has been withdrawn as the full Superior Court prepares to address the issue again at a date still to be determined. I will again present the amicus curiae position of the Pennsylvania Defense Institute on this all-important issue. Stay tuned for more updates here on Tort Talk.

Saturday, November 27, 2010

Need CLE Credits? Auto Law Seminar This Thursday (12/2/10)

THE PENNSYLVANIA ASSOCIATION FOR JUSTICE

presents an


AUTO LAW SEMINAR


THURSDAY, DECEMBER 2, 2010


SCRANTON HILTON HOTEL AND CONFERENCE CENTER


9 a.m. to 1:30 pm


4 CREDITS (3 SUBSTANTIVE, 1 ETHICS)


On Thursday, December 2, 2010, I will be participating as a presenter of a Post-Koken Update at a CLE Seminar being put on by the Pennsylvania Association for Justice (PAJ) at the Hilton Scranton Hotel and Conference Center on Adams Avenue in Scranton, Pennsylvania from 9 a.m. to 1:30 p.m. The seminar offers 4 credits (3 Substantive & 1 Ethics).

Neil O'Donnell is serving as the course planner and will be joined by myself, Bill Anzalone, Richard Fine, James Gibbons, Carl Guagliardo, Lucille Marsh, Judge Joseph Musto, Jeffrey Pollock, Joe Price, Roger Roggenbaum, Joe Burke.

Judge Joseph J. Van Jura, of the Luzerne County Court of Common Pleas, will also serve as a presenter from the bench.

The program will cover Post-Koken issues, the Top 2010 Auto Law Cases, Lien issues, insight into the thoughts of the arbitrators and mediators who hear cases, and a "View from the Bench."


Click on the following to register:

http://eseries.pajustice.org/source/Events/Event.cfm?Event=ALSC1210

You may also call the Pennsylvania Association for Justice at 215 546-6451 to register.

Monday, November 22, 2010

HAPPY THANKSGIVING



I send Happy Thanksgiving greetings to all Tort Talkers. I am grateful for all of the readers, email subscribers and contributors to Tort Talk and I send to you my great THANKS! I hope you have a nice, long holiday weekend.

Sincerely,

Dan Cummins


Source of Photo: Image: Paul / FreeDigitalPhotos.net


Re-Argument En Banc Granted in Barrick v. Holy Spirit Hosptal

BREAKING NEWS: The Pennsylvania Superior Court has issued an Order granting re-argument en banc in the case of Barrick v. Holy Spirit Hospital, 5 A.3rd 404 (Pa.Super. 2010).

You may recall that this was the case in which the Superior Court held that Plaintiff's counsel must turn over, in discovery, their letters to their medical experts pertaining to the expert's formulation of his or her opinion for trial.

For more details to the Superior Court's original decision, click this link to my former blog post on the matter:

http://www.torttalk.com/2010/09/amicus-curiae-position-advocated-for.html

Friday, November 19, 2010

New Atlantic Second Citation for Important UIM Case

Here's the recently published citation to a the recent important UIM case of D'Adamo v. Erie Ins. Exchange, 4 A.3d 1090 (Pa.Super. 2010)(UIM carrier was entitled to credit on arbitration awards to injured parties in the amount of the tortfeasor's personal umbrella policy).

New Superior Court Case Regarding Naming Medicare on Settlement Drafts

In its recent November 17, 2010 decision on an appeal from a Luzerne County case, the Pennsylvania Superior Court addressed the issue of naming Medicare on settlement checks in the case of Zaleppa v. Seiwell, 2010 Pa.Super. 208 (Pa.Super. Nov. 17, 2010, Allen, Mundy, and Colville, JJ.).

At trial, the Plaintiff had obtained a $15,000.00 jury verdict against the Defendants, $5,000 of which was for future medical expenses and the remainder of which was for pain and suffering.

On post-trial motions, the Defendants argued that the trial court erred in denying the Defendants' request that the court enter an Order directing the Defendants to pay the verdict either (1) by naming Medicare, along with the Plaintiff and her attorneys, as payees on the check satisfying the verdict, or (2) by paying the verdict into court pending notification from Medicare that all outstanding Medicare liens had been satisfied.

In its Opinion, the Superior Court noted that the Plaintiff was 69 years of age at the time of the car accident that was the subject of this litigation. However, there was no evidence presented at the trial court level that any of the Plaintiffs' past medical treatment had been paid by Medicare to date. The Superior Court additionally noted that there was no claim presented for any past medical expenses by the Plaintiff because she was precluded from doing so by 75 Pa.C.S.A. 1722 in that the first party medical benefits under her own automobile insurance policy had not been exhausted. The Zaleppa Court further emphasized that the jury did not enter any award for past medical expenses.

The Superior Court held that there was no legal basis under either federal or Pennsylvania law to assert the interests of the United States government as to the reimbursement of Medicare liens. As such, the Superior Court held that the trial court properly denied the Defendants' request in this regard.

It is noted that the Superior Court does a nice analysis of a defendant's (and arguably a plaintiff's) obligations under the Medicare Secondary Payer Act (MSPA). To review this Opinion, click on this link:

http://www.aopc.org/OpPosting/Superior/out/A30027_10.pdf


I was made aware of this recent, important decision by Attorney Ron Marrero, of Robert J. Casey & Associates (State Farm house counsel, Philadelphia) and I send a "thanks" his way..

Tuesday, November 16, 2010

Medicare Reporting Deadline Postponed - Again

I have obtained permission to re-publish this November 16, 2010 blog post on the Medicare reporting requirements by Dave Walk, Esquire from the Drug and Device Law Blog as a guest post here. Attorney Walk provided this update:

We have reported to you occasionally, but not consistently or reliably or intelligibly, about the new obligation of product liability defendants and others to report settlements and other payments on personal injury claims to Medicare authorities. See, for example, our posts titled Boring Stuff We Need to Know and More Boring Stuff We Need to Know. The reporting obligation has been extended several times and was scheduled to kick in starting on January 1, 2011 – an extension we did not tell you about. We told you we are not reliable chroniclers of boring stuff. What can we say? We'd rather write about preemption or Daubert or TwIqbal.

Last week, the Centers for Medicare & Medicaid Services, which goes by the confusing acronym CMS instead of the more logical CMMS, announced that the reporting deadline for some but not all entities and some but not all settlements has been postponed for one full year. The CMS alert states: “The required submission of liability insurance (including self-insurance) initial claim reports has been changed from the first calendar quarter of 2011 to the first calendar quarter of 2012 for all liability insurance (including self-insurance) TPOC amounts with no ORM involvement. Liability insurance (including self-insurance) ORM reporting is not subject to this delay.”

We speak bureaucratese about as well as we speak jive (R.I.P., Barbara Billingsley). Here is a rough translation: The deadline for reporting personal injury settlements and other payment obligations (that’s TPOC) has been extended for one year, until the quarter starting January 1, 2012, but only for settlements or other payments paid by liability insurance or the defendant itself (that’s self-insurance) and not for no-fault insurance and workers’ compensation. The extension does not apply to settlements or other payment obligations that include an ongoing responsibility for paying the injured party’s medical bills (that’s ORM).

This is complicated stuff that is very important to our clients, so if you have an issue in this area, please read the CMS alert and consult with professional translators of CMS bureaucratese.

--
Posted By David Walk to Drug and Device Law at 11/16/2010 01:23:00 PM

The Drug and Device Law blog can be accessed by clicking on this link:

http://druganddevicelaw.blogspot.com/

Friday, November 12, 2010

2011 Annual Supplement to Pennsylvania Trial Advocacy Handbook Released

I am pleased and proud to announce that the 2011 Supplement to the Pennsylvania Trial Advocacy Handbook I authored has been released by the George T. Bisel Co., Inc.

On the dedication page, I dedicated this volume "To my good friend, William G. Rice, Esquire (1961-2010)."

Anyone who may wish to purchase this treatise may contact the George T. Bisel Co., Inc. at 710 S. Washington Square, Philadelphia, PA 19106-3591, (215) 922-5760, (800) 247-3526, or by email at gbisel@bisel.com.

For full disclosure purposes, I note that I am entitled to receive a small royalty for each book sold to a new subscriber.

Thursday, November 11, 2010

Next Thursday (Nov. 18, 2010) - Holiday Happy Hour


The Northeast Pennsylvania
Trial Lawyers Association

is hosting a


Holiday Happy Hour

Thursday, November 18, 2010
5:30pm to 7:30pm

at

Bar Louie
Mohegan Sun at Pocono Downs
Wilkes-Barre, PA

RSVP by November 12
to Dan Cummins
570-346-0745
dancummins@comcast.net


Members: FREE
Non-Members/Guests: $25


Make check out to "Northeastern Pennsylvania Trial Lawyers Assocation"
and send to:


Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503

Further Nationwide Exposure for Tort Talk

I have been requested by the PLRB/LIRB, a national group designed to assist and educate those working in the liability insurance claims field, to serve as their "go-to" person for updates on important cases and trends in Pennsylvania civil litigation law.

The updates I provide to them on Pennsylvania law will be sent out by email to over 30,000 claims professionals, from CEO's and Claims Vice Presidents to the frontline claims handlers as well as being posted on the PLRB/LIRB website at http://www.plrb.org/.

Upcoming Auto Law CLE Seminar of Note

On Thursday, December 2, 2010, I will be participating as a presenter of a Post-Koken Update at a CLE Seminar being put on by the Pennsylvania Association for Justice (PAJ) at the Hilton Scranton Hotel and Conference Center on Adams Avenue in Scranton, Pennsylvania from 9 a.m. to 1:30 p.m. The seminar offers 4 credits (3 Substantive & 1 Ethics).

Neil O'Donnell is serving as the course planner and will be joined by myself, Bill Anzalone, Richard Fine, James Gibbons, Carl Guagliardo, Lucille Marsh, Judge Joseph Musto, Jeffrey Pollock, Joe Price, Roger Roggenbaum, Joe Burke.

Judge Joseph J. Van Jura, of the Luzerne County Court of Common Pleas, will also serve as a presenter from the bench.

The program will cover Post-Koken issues, the Top 2010 Auto Law Cases, Lien issues, insight into the thoughts of the arbitrators and mediators who hear cases, and a "View from the Bench."


Click on the following to register:

http://eseries.pajustice.org/source/Events/Event.cfm?Event=ALSC1210


You may also call the Pennsylvania Association for Justice at 215 546-6451 to register.

Products Liability Claim For Faulty Construction of a Building Rejected

In the case of Cooper v. Gerald W. Erdley General Contracting, et.al., No. 09-Civil-0478 (Union Co. Oct. 21, 2010, Sholley, J.), Judge Michael H. Sholley addressed the issue of whether or not a products liability claim can be asserted in a matter arising from the property losses sustained by Plaintiffs incident through the destruction by fire of their home, garage, and personal property.

The case became before the Court by way of Preliminary Objections by the general contractor Defendant. The Plaintiffs were attempting to assert a cause of action in strict/products liability against the contractor under allegations that the contractor was strictly liable for producing the subject premises in a defective condition. More specifically, it was alleged that the contractor failed to install fire/rated sheet rock or drywall in the common wall adjacent to the living space in the residence and the garage such that a fire in the garage would not have spread to the home.

The Defendant contractor objected to the Plaintiff’s cause of action based upon §402A of the Restatement (Second) Torts on the grounds that the contractor was not a “seller” nor was the constructed residence a “product” as contemplated by the strict products liability law.

The trial court noted that they were unaware of any Supreme Court decision directly addressing the issue of whether a deficient construction of a home could give rise to a products liability claim. However, in the Superior Court case of Cox v. Shaffer, 302 A.2d 456 (Pa. Super. 1973), the Superior Court stated that a constructed building is not a product within the intent and meaning of §402A. The trial court in this matter noted that its research revealed that Cox v. Shaffer remained good law (other citations omitted).

In so ruling, the trial court in Cooper did also acknowledge the Plaintiff’s reliance on Judge William J. Nealon’s Federal Court Opinion in which Judge Nealon predicted in Bednarski v. Hideout Homes & Realty, Inc., 711 F. Supp. 823 (M.D. Pa. 1989), that the Pennsylvania Supreme Court may decide that builders may be held liable under §402A. However, the Cooper court noted that the federal court’s decision in Bednarski was not binding precedent.

As such, the trial court in Cooper dismissed the strict liability claim in this context.

Anyone desiring a copy of this Cooper Opinion may contact me at dancummins@comcast.net.

Schuylkill County Decision by Judge Russell in favor of Severance of Post-Koken Claims

In what appears to a be case of first impression in that county, Judge Jacqueline L. Russell of the Schuylkill County Court of Common Pleas entered a November 5, 2010 Order sustained the Preliminary Objections of the tortfeasor Defendant in the post-Koken case of Corridoni v. Temple and MetLife Auto & Home et.al., No. S-1470-2010 (Schuylkill Co. Nov. 5, 2010, Russell, J.), severing the claims against the tortfeasor from the claims asserted against the insurance company Defendants for UIM benefits.

In her Order, Judge Russell stated that “[t]his Court does not find it appropriate to allow Plaintiff’s tort cause of action in negligence against [the tortfeasors] to be joined in the same Complaint with Plaintiff’s claims that he is entitled to damages in contract against his insurer(s) relative to the alleged underinsured status of Temple.” [bracket inserted].

The judge also noted that, with respect to the Plaintiff’s argument that a severance of the claims would result in a duplication of litigation efforts, the Court anticipated that the parties would be able to cooperate to avoid such duplicative efforts. Judge Russell further noted that, if the parties were not able to cooperate in this regard, the Court, upon proper motion, may direct the consolidation of the separate actions for discovery purposes.

Judge Russell further ordered that the Plaintiff should file an Amended Complaint on the claims against the tortfeasor under one docket number and should file a separate Complaint against the insurance company Defendants under a second docket number, with all costs to be paid for by the Plaintiffs.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

I thank the prevailing defense attorney, Joseph F. Murphy, of the Harrisburg office of Forry Ullman for forwarding this case to my attention.

I will update the Post-Koken Scorecard in the near future to add the recent cases noted.

Wednesday, November 10, 2010

Million Dollar Jury Verdict Entered in Lackawanna County Trial

Here's a link to a November 10, 2010 article in Scranton's Times-Tribune reporting on a million dollar jury verdict in a Lackawanna County Court of Common Pleas automobile accident personal injury case earlier this week:

http://thetimes-tribune.com/news/jury-awards-1-1-million-to-gouldsboro-woman-hurt-in-car-crash-1.1061920

Rule 1925 Opinion Issued By Luzerne County Judge Van Jura in Post-Koken Transfer of Venue Case

Tort Talkers may recall reading here that Judge Joseph Van Jura of the Luzerne County Court of Common Pleas recently issued an August 16, 2010 Order in the post-Koken case of Wissinger v. Brady, Laubach, and State Farm, No. 3792-CIVIL-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.), granting the Preliminary Objections of a third party defendant asserting improper venue under Pa. R.C.P. 1006.

I have secured a copy of the Judge's Rule 1925 Opinion issued in this matter now that the case is going up on appeal.

The plaintiff involved in this matter was from Northumberland County. The accident occurred in Northumberland County. The tortfeasor defendants were from Montour County. Under Pennsylvania's venue Rule (Rule 1006), it would appear that venue in this matter was proper at least in the place where the accident happened or where the tortfeasor resided or could be served.

According to Judge Van Jura's Opinion, the plaintiff was arguing that suit could be filed in Luzerne County on account of the fact that State Farm did business in that county.

The Court rejected this argument and also noted that there was no joint and several liability between the third party defendant and the UIM carrier to otherwise support venue in Luzerne County.

I thank the prevailing defense attorney, Aaron Decker from the Plains, Pennsylvania office of Snyder & Associates, in-house counsel for Nationwide, for forwarding this Opinion to my attention.

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

Tuesday, November 9, 2010

New Westlaw Citation for Recent Social Media Discovery Case

Tort Talkers may recall that I recently highlighted the case of McMillen v. Hummingbird Speedway, Inc., PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), in which Jefferson County President Judge Foradora held that where a person’s social networking sites contain information that may be relevant to the claims or defenses presented in a personal injury lawsuit, access to those sites during discovery should be freely granted.

I have just learned that this case has been given a Westlaw citation. Here it is: 2010 WL 4403285 (Jefferson Co. 2010).

I thank Attorney James Beck of the Philadelphia law firm of Dechert, LLP for securing and providing this citation from Westlaw. Consider visiting Attorney Beck's blog, the Drug and Device Law Blog at http://druganddevicelaw.blogspot.com/ , which, in my opinion, is the best of its kind on that topic.

Monday, November 8, 2010

Consider Claiming Your Online Attorney Profile at Avvo.com

I have added a link down on the right-hand column of Tort Talk to enable you, if you'd like, to claim your online profile on the Avvo.com website. Scroll down on the right hand column of this blog and click on "Claim your FREE profile today" and you will be sent to the site.

Avvo.com has created a basic online attorney profile for every attorney who is listed as a licensed attorney in any state. Your profile is there for you to claim and update and expand with more pertinent background information. It's easy to do too.

The claiming and expanding of your profile is FREE. There are ways, of course, of using the additional Avvo.com website services for a fee, but the basic, ongoing usage of the site and continuing updating of your profile is FREE.

I have claimed and updated my profile for FREE as a means of increasing my online exposure. I figure the more online exposure an attorney has, the more likely that attorney is going to appear at the top of a Google search by a potential client for an attorney in your area.

For full disclosure purposes, I note that Avvo.com has agreed to pay me a small fee on a cost-per-action (CPA) basis for every profile claimed.

Sunday, November 7, 2010

Superior Court Reaffirms No Stacking of First Party Benefits

In its "non-precedential" Opinion in the case of Rosiecki v. Erie Insurance Exchange, No. 44 MDA 2010 (Pa.Super. 2010, Allen, Mundy, and Colville, JJ.), the Pennsylvania Superior Court essentially reaffirmed the notion that first party benefits can not be stacked in Pennsylvania. See 75 Pa.C.S. Section 1717.

This case of apparent first impression involved a Plaintiff who had been involved in six motor vehicle accidents over the course of her lifetime. She attempted to argue with respect to this matter, arising from her most recent accident, that her injuries from all of the accidents were cumulative and that this matter involved an exacerbation of all of her related injuries such that she should be entitled to recover under her first party wage loss benefits six times over.


On the basis of the evidence presented, the Court rejected this argument by the Plaintiff and accepted Erie's argument that the Plaintiff was only entitled to recover wage loss benefits under the first party wage loss limits implicated by the last accident alone. As such, the Superior Court affirmed the entry of summary judgment in favor of Erie originally haCheck Spellingnded down in the Lackawanna County Court of Common Pleas.

I thank the prevailing defense attorney, Robert T. Panowicz of Panowicz Law Offices in Wilkes-Barre, Pennsylvania, for bringing this decision to my attention.



Anyone desiring a copy of this unpublished, non-precedential decision by the Superior Court in Rosiecki may contact me at dancummins@comcast.net.

Recent Articles Updating Status of Matters in Luzerne County Scandals

Here's a link to a November 3, 2010 article by David Janoski of the Citizens Voice regarding former Judge Michael Toole's guilty plea to accepting an illegal gratuity while on the bench. In the article is an interesting note as to who Toole wishes to subpoena to testify at the hearing on his sentence:

http://citizensvoice.com/news/toole-pleads-guilty-to-accepting-illegal-gratuity-1.1058587


Here is a link to a November 5, 2010 article by Michael R. Sisak of the Citizens Voice reporting that Federal Court Judge Edwin M. Kosik has again denied former Judge Mark A. Ciavarella's request that Judge Kosik recuse himself from Ciavarella's upcoming February of 2011 trial:

http://citizensvoice.com/news/judge-stays-on-ciavarella-s-case-1.1059715

Saturday, November 6, 2010

Judge Wetzel of Luzerne County Rules Reserves Information Not Discoverable in Post-Koken Bad Faith Claim

Judge Lewis W. Wetzel in Luzerne County sustained in part and denied in part a UIM carrier's objections to discovery of insurance reserves in the Post-Koken case of Migatulski v. Nationwide, Eberts, et al., No. 7269 - Civil - 2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.) which case involved claims against various tortfeasors along with underinsured motorist benefits and bad faith claims against the UIM carrier. The Court also issued a more recent October 25, 2010 Order denying the Plaintiff's Motion for Reconsideration.

Judge Wetzel granted the Plaintiff's Motion to Compel the UIM carrier to produce a privilege log of documents as well as the work product of the adjusters handling the first party and underinsured motorist claims of the plaintiff. The UIM carrier was permitted by the judge to redact impressions, conclusions or opinions of the adjuster directed to the UIM carrier's defense counsel. The UIM carrier was also allowed to withhold any information deemed to be protected by the attorney-client privilege.

Any information claimed to be privileged for any of these reasons was subject to a further in camera review by the court if requested by the Plaintiff.


The above parts of the Order are consistent with other decisions on the extent of discovery allowed in Post-Koken matters involving bad faith claims. Those decisions may be reviewed in the Post-Koken Scorecard by scrolling down the right hand side of this blog and clicking on the date listed under "Post-Koken Scorecard."


The Judge further ordered the UIM carrier to produce any claims handling manuals pertaining to first party claims and UIM claims. The Order stated that both parties were bound by a previously agreed upon confidentiality clause pertaining to that disclosure.


Judge Wetzel's decision is also notable for his handling of the issue of the Plaintiff's attempt to discover the UIM carrier's reserve information in this context.


In his Order, the judge refused to allow for the discovery of the first party or UIM reserves information. In so ruling, the court relied upon the Superior Court decision of Peco Energy Co. v. Ins. Co. of North America, 852 A.2d 1230 (Pa.Super. 2004), which also held that such information was not discoverable as reserves information kept by carriers was a means by which a carrier, as required by the Pennsylvania Insurance Commissioner, put aside money to cover the potential worse case scenarios of claims in order that the carrier may see what needs to be done to remain solvent as opposed to the reserves being any reflection of the carrier's assessment of the true value of claims presented.


This ruling may come to serve as a roadblock for insureds who try to obtain and use reserve information in an effort to assert that an offer by a carrier on a claim less than than the amount of reserves constitutes a bad faith offer on that claim.



Anyone desiring a copy of the original Order and Reconsideration Order of Judge Wetzel may contact me at dancummins@comcast.net.


I thank Attorneys Charles J. Haddick and Bryon Kaster, both of the Harrisburg, Pennsylvania office of Dickie, McCamey & Chilcote, P.C., for forwarding this decision to my attention. I also note that Attorney Haddick is the writer of the Insurance Coverage and Bad Faith Blog, which can be found at http://thelegalintelligencer.typepad.com/tli/charles-haddick/ .

Transfer of Venue Denied in Phila. County Post-Koken Case

I have been advised of an Order without Opinion by Judge Lisa M. Rau of the Philadelphia County Court of Common Pleas denying transfer of venue in the post-Koken matter of Miscannon v. State Farm, GEICO, and Norris, Term June 2010, No. 003302 (Phila. Co. Nov. 30, 2010, J. Rau) No rationale is stated in the Order.

In this matter the moving party, i.e. the tortfeasor defendants, were not seeking any severance. Rather, the moving party was just seeking to transfer the matter from Philadelphia County to Lancaster County where the tortfeasor defendants lived and where accident occurred.

I was also advised that there was an issue of the preliminary objections being untimely filed in this matter so it is uncertain whether the denial was for procedural reasons or substantive reasons.



Anyone desiring a copy of the Order in Miscannon may contact me at dancummins@comcast.net.


I send thanks to Attorney Susan Weiner of the King of Prussia Law Offices of James L. Barlow for bringing this case to my attention.

Friday, October 29, 2010

Article Reports Conahan May Testify Against Ciavarella

Here's a link to a October 28, 2010 Times Leader article by Terri Morgan-Besecker reporting that former Luzerne County Judge Michael Conahan may testify against former Luzerne County Judge Mark Ciavarella:

http://www.timesleader.com/news/105946308.html

Tuesday, October 26, 2010

ARTICLE: The New Discovery Battlefield

The New Discovery Battlefield

Novel Jefferson County trial court decision opens door to discovery of social networking sites


Daniel E. Cummins

Pennsylvania Law Weekly // The Legal Intelligencer
October 26, 2010


There's a new discovery battlefield developing across the Pennsylvania legal landscape and the defense has taken the first hill.

With the ever-expanding reach of the Internet and the willingness of people using it to put more and more personal information on social networking sites, counsel on both sides of the bar have begun to utilize Google searches and social media sites to uncover information on potential jurors during voir dire.

More recently, another trend in personal injury litigation involves counsel turning their attention and focusing their discovery efforts on social networking sites, such as Facebook and MySpace, which can be gold mines of information on plaintiffs, defendants, and witnesses in the unguarded moments of their lives when they think no one is watching.

Litigators have used various maneuvers, both covert and overt, in an effort to access these social networking sites with varying degrees of success. As noted below, in a recent decision, President Judge John H. Foradora of the Jefferson County Common Pleas Court opened the door to direct discovery efforts in this regard by approving interrogatories and request for production calling for the production of information contained on social networking sites.

Covert Ops

Some attorneys have used covert ops to gain information on the opposing party or witnesses in the case, unbeknownst to opposing counsel, by going to the public Facebook and/or MySpace profiles of the other party or witness to gather what limited information may be available there.

However, in most cases, more useful information on these social networking sites may be on personal pages that can only be accessed with the permission of the owner of that particular social networking profile.

In this regard, the professional guidance committee of the Philadelphia Bar Association issued an opinion in March 2009, 2009-02, addressing the issue of whether or not it would be ethical for an attorney to not only have a third person, such as a private investigator, attempt to access a witness' (not a party plaintiff's) personal pages by attempting to "friend" the plaintiff and get permission to view the plaintiff's more detailed profile pages, but also use the information generated if access is granted.

In the ethical opinion, it was decided that the fact that the search of the site is conducted by a third party "does not insulate the [attorney] from ethical responsibility for the conduct." The opinion goes on to conclude that such actions by the attorney in procuring a third party to attempt to communicate with the witness and gain access to the witness' social networking sites in this context would violate Professional Rule of Responsibility 8.4 in that such conduct would be "deceptive" and would represent false statements of material fact to the witness in violation of Rule 4.1 as well.

In other words, if the witness knew the true purpose of the inquirer's intention to "friend" the witness, i.e., to gather information to impeach the witness, the witness might not grant access to his or her Facebook or MySpace page.

Presumably, the same rationale and conclusion would result if the factual scenario involved a plaintiff's networking sites.

The ethical opinion did not address the ability of an attorney to utilize any information gathered in this manner in contravention of the conclusions of this ethical opinion. Rather, the committee left that issue to be decided by the courts as a matter of substantive and evidentiary law.

Outflanking the Plaintiff

Another maneuver attempted by counsel to gain access to the information on parties or witnesses is to try to outflank opposing counsel's refusal to grant access to the information by serving a subpoena directly upon Facebook, MySpace, or other relevant networking sites.

A U.S. District Court in California recently addressed the validity of this discovery maneuver in the 2010 case of Crispin v. Christian Audigier, Inc . The Crispin court reviewed the protections provided by the Stored Communications Act, which was enacted in 1986 as part of the Electronic Communications Privacy Act. The Stored Communications Act prevents providers of communication services from divulging private communications to certain individuals and entities.

The court found that, under the Stored Communications Act, an owner of a social networking profile had standing to quash a subpoena seeking the production of personal information protected by the Act.

The court also found that since social networking sites, such as Facebook and MySpace, allow for electronic communications among parties, these sites were covered under the protections afforded by the Act against unwanted disclosures. As such the court granted the plaintiff's motion to quash those aspects of the subpoena that sought production of any private messages on those sites.

However, the Crispin court did not grant or deny the plaintiff's motion to quash the defendant's subpoena addressed to the production of Facebook wall postings or MySpace comments, but rather remanded the matter back to the federal district magistrate judge for a hearing to determine the privacy settings utilized by the plaintiff on those sites. Presumably, if the privacy settings the providers of the plaintiff's various networking sites were restrictive, it appears that the California federal court would be inclined to quash the subpoena.

A Direct Assault

In the novel Jefferson County case of McMillen v. Hummingbird Speedway Inc. , Foradora held earlier this year that where a person's social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

The McMillen case involved a plaintiff who filed suit to recover damages for personal injuries allegedly caused when a defendant rear-ended the plaintiff's vehicle during a cool down lap following a 2007 stock car race.

During discovery, defendant Hummingbird Speedway Inc., in its interrogatories, inquired if the plaintiff belonged to any social networking computer sites. The defendant also requested the name of the site, the plaintiff's user name, login name, and password.

In this case, the plaintiff disclosed that he belonged to Facebook and MySpace, but maintained that his user name and login name information were confidential and should not have to be provided.

In viewing the public portion of the plaintiff's Facebook page, the defendant noted comments evidencing that the plaintiff had gone on a fishing trip and had attended the Daytona 500 race in Florida.

When the plaintiff refused to fully respond to the written discovery requests, the defendant filed a motion to compel the discovery desired.

The trial court pointed to the general rule in Pennsylvania that a party may obtain discovery regarding any information that is relevant and not privileged. The plaintiffs requested the court to find the communications shared among one's private friends on a social networking site to be confidential and protected from disclosure. Foradora noted that no binding or persuasive authority was cited by the plaintiff to support this assertion.

Foradora noted that evidentiary privileges are not favored under Pennsylvania law and should be narrowly construed. The court found that the plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge also emphasized that these social networking websites themselves expressly advised the users of the sites of the possibility of the disclosure of the information posted on the sites.

Accordingly, the court found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the plaintiff's sites in McMillen was found to be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal of the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

As such, Foradora ordered the plaintiff to produce his Facebook and MySpace user names and passwords. The plaintiff was further ordered not to delete or alter any of the information on the accounts in the meantime.

It is noted, parenthetically, that a recent decision with the same result in favor of production of information in discovery was handed down in the Suffolk County, New York trial court level case of Romano v. Steelcase Inc. The court in that case noted last month that, where the publicly viewable portions of the plaintiff's Facebook and MySpace profiles contained pictures that contradicted the plaintiff's personal injury claims, that information is discoverable.

The rationale of the New York trial court judge's opinion, in part, was that precluding the defense from accessing such information would not only be violative of New York's liberal rules pertaining to pre-trial discovery, but would also serve to "condone [p]laintiff's attempt to hide relevant information behind self-regulated privacy settings."

The Truth Can Hurt

Ultimately this new discovery battlefield pits the privacy interests of a party or witness against the goal of civil trials of searching for the truth on the claims and defenses presented.

It is well settled that the purpose of the discovery rules in Pennsylvania is to prevent surprise and unfairness to the parties and to allow for a fair trial on the merits of the case presented. Generally, under these rules, discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the case at hand.

Doesn't it follow therefore that a personal injury plaintiff should be allowed to access a defendant's Facebook or MySpace pages where there may be commentary on those pages whereby the defendant admits fault for the accident?

Surely then, on the same token, wouldn't the overriding goal of jury trials of ascertaining the truth as to the extent of the plaintiff's claims of injury and disability also be furthered by the discovery and admission of post-accident pictures from a plaintiff's Facebook and MySpace profiles of a smiling plaintiff gaining air while barefoot waterskiing, triumphantly crossing the finish line at the end of a 5K race, or vacationing at Disney World? •



Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/. This article first appeared in the October 26, 2010 edition of the Pennsylvania Law Weekly, all rights protected, Incisive Media, 2010.


Anyone desiring a copy of the McMillen v. Hummingbird Speedway, Inc. case may contact me at dancummins@comcast.net.


Also, here is a link to a draft of an article sent to me by a Jaclyn Millner, Esquire, and a Gregory M. Duhl, Associate Professor of Law at William Mitchell College of Law in St. Paul, Minnesota, which article is set to be published in the Pace Law Review on the use of social networking evidence in insurance and workers' compensation litigation.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026