Thursday, December 30, 2010


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 /

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:

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:

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:

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:
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
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


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,

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:

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

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:

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


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 .

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:

Wednesday, December 1, 2010


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

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

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

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