Thursday, October 7, 2010

Judge Van Jura of Luzerne County Weighs in on Permissible Scope of Supplemental Expert Discovery

On October 1, 2010, Judge Joseph Van Jura of the Luzerne County Court of Common Pleas issued an Opinion and Order in the case of Glushefski v. Sadowski and Erie Insurance Exchange, No. 1189-Civil-2009 (Luz. Co. October 1, 2010, Van Jura, J.), in which he ruled upon a Plaintiff’s Motion to Dismiss the objections of the Defendant, Erie Insurance Exchange to various written discovery requests of the Plaintiff seeking to compel the production of bias information on the defense independent medical examination doctor.

By way of background, the Plaintiff sent discovery to Defendant Erie in this Post-Koken case including Interrogatories seeking the number of independent medical examinations performed by the defense IME doctor on behalf of or at the request of Erie Insurance over a four (4) year period and the number of depositions completed by the defense IME doctor on behalf of or at the request of Erie Insurance over a four (4) year period.

The Plaintiff also forwarded a Request for Production of Documents requesting a copy of the transcripts of the depositions of the defense IME doctor in which the doctor testified on behalf of or at the request of Erie Insurance.

Erie objected to these written discovery requests as being beyond the scope of discovery allowed by the Pennsylvania Rules of Civil Procedure. Erie also objected that the requested information would cause unreasonable annoyance, burdensome, and expense to the party Defendant. With regards to the request for transcripts of the depositions of the IME doctor, Erie also asserted that the production of that information would be in violation of the HIPAA regulations.

In his Opinion, Judge Van Jura noted that the essential objection of Defendant Erie Insurance was that the discovery requests exceeded the scope of supplemental expert discovery allowed by the case of Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), in which case the Pennsylvania Supreme Court applied and interpreted Pa. R.C.P. 4003.5(a)(2).

The judge noted that, in the Cooper case, the Pennsylvania Supreme Court held that the threshold showing to establish “cause” with respect to supplemental expert discovery, relating to potential bias of a non-party expert witness retained for trial preparations, is a showing of “reasonable grounds” to believe that the witness may have entered the “professional witness” category. In Cooper, this initial threshold shown was met by showing that the IME doctor had performed more than 200 IMEs over a few year period.

According to the Cooper decision, once that threshold shown is met, a number of supplemental expert discovery inquiries could be made to the expert witness to cover information, including the amount of income earned by the doctor each year, for up to a three year period.

In his decision in Glushefski, Judge Van Jura rejected Erie’s position that the nature and scope of the Plaintiff’s permissible supplemental expert discovery is limited to the permissible areas of inquiry as set forth in Cooper in the context of this case where the discovery requests were directed to the opposing party as opposed to the opposing party's expert.

The Judge also rejected Erie's contention that Cooper limits the scope of supplemental expert discovery propounded to both a non-party expert retained for trial (as in Cooper) as well as the scope of supplemental expert discovery propounded to a party to the action (as in this matter).

Judge Van Jura noted that supplemental expert Interrogatories directed to a party who hired the expert are not per se governed by the holding in Cooper, but rather, are governed by the permitted general scope of discovery to a party under Pa. R.C.P. 4003.1, as limited by Pa. R.C.P. 4003.2 to 4003.5 and Pa. R.C.P. 4011.

Nevertheless, Judge Van Jura noted that “the balanced and incremental approach to expert discovery, approved by the Court in Cooper, must now, by implication, inform the methodology of supplemental expert discovery directed to a party, as in this case.”

Applying that rationale to the issues before him, and after reviewing other related Rules of Civil Procedure and appellate decisions, Judge Van Jura ruled that the holding in Cooper “can only be reasonably construed to formulate and apply to a procedural model of an incremental and progressively measured approach to supplemental expert discovery so as to provide for relevant and reasonable discovery consistent with the avoidance of unreasonable burden or expense on the part of any party.”

The judge noted that, with the “expert driven” litigation of today, the trial court “must, in its sound discretion, monitor and, where necessary, moderate discovery, particularly in the areas of expert bias, which, while the issue can and should be explored, must not be permitted to expand to an overarching and disproportionately costly and time consuming component of the litigation process.”

In opposition to the Plaintiff’s Motion to Compel, Erie had argued that, in order to fully respond to the Plaintiff’s written discovery requests in this regard, Erie employees would have to manually pull and review tens and thousands of individual files at Erie’s four branch offices to determine if this particular IME doctor has performed an IME and/or given deposition testimony for an Erie insured in the past.

Judge Van Jura ruled that this was too burdensome and that, at this stage of the litigation, Erie would only be required to provide to the Plaintiff the number of IMEs and depositions completed by the IME doctor at the request of Erie over a three year period. However, Erie would not be required to undertake the overly burdensome task of setting forth the case caption and docket number for each case, or the identity of Plaintiff’s counsel in each matter as requested. Judge Van Jura also held that Erie need not produce a copy of the transcripts of the depositions identified.

The judge’s rationale was that, allowing for this type of limited discovery over a three year look back period “would track the philosophy of incremental and leased invasive discovery as approved by the Supreme Court in Cooper.” The judge also noted that this decision would honor the Plaintiffs’ entitlement to inquire into the issue of potential favoritism on the part of the IME doctor and the issue of whether or not the IME doctor had entered into the “professional witness category,” while, at the same time, protecting Erie from unduly intrusive and burdensome discovery obligations in violation of the Pennsylvania Rules of Civil Procedure.

Anyone desiring a copy of Judge Van Jura’s decision in the Luzerne County case of Glushefski v. Sadowski and Erie Insurance Exchange may contact me at

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