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 .

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