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

Novel Decision on Statute of Limitations for Medicare Recovery Actions

In the case of United States v. Stricker et al., the United States District Court for the Northern District of Alabama ruled on the applicable statute of limitations in a Medicare recovery action.

This matter involved a suit instituted by the government against the tortfeasors, plaintiff attorneys, and insurers that were involved in a $300 million toxic tort settlement reached in 2003.

Notably, the Medicare Secondary Payer Act does not indicate a deadline for filing a claim for recovery.

Therefore, the relevant statute of limitations for the government’s claims is governed by the Federal Claims Collection Act (FCCA). See 28 U.S.C. § 2415.

The parties in this matter argued over whether the FCCA’s six (6)year or three (3)year statue of limitations applied.

The Strickler court held that the claim against the corporate defendants was based in tort, and therefore, a three (3)year statute of limitations applied, which resulted in the dismissal of these claims which were not filed until 2009, i.e. six (6) years after the underlying event.

The court in Strickler also held that the government’s claim against the attorney defendants was based on contract law, and therefore, the six (6) year statute of limitations applied to those claims. The court reasoned that the defendant attorneys acted as agents pursuant to the contractual relationship between the government the Medicare beneficiaries, and the attorneys’ obligation to pay their clients monies allegedly owed to the government for Medicare reimbursement arose from an express contractual relationship with the Medicare beneficiaries.

The court further held that when the statutes of limitations periods began to run was different for the two groups of defendants. As to the corporate defendants, the cause of action arose at the execution and court approval of the settlement. In contrast, the cause of action as to the attorney defendants arose was held to start when payment of the settlement was made.

I send thanks to Allen Henry of State Farm for bringing this apparent case of first impression to my attention. I also cite to the Medicare Secondary Payer Act Blog which can be found at http://themedicarespa.com/.

Thursday, October 21, 2010

PLEASE RSVP FOR NEPATLA HOLIDAY HAPPY HOUR AT MOHEGAN SUN CASINO


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

Wednesday, October 20, 2010

Mercer County Post-Koken Decision Favors Severance of Claims

On October 15, 2010, Mercer County Court of Common Pleas President Judge Francis J. Fornelli issued a decision in the post-Koken case of Gravatt v. Smith and Unitrin Auto and Home Ins. Co., 2010-Civil-2155 (Mercer Co. Oct. 15, 2010 Fornelli, P.J.), in which he granted the tortfeasor's Preliminary Objections/Motion to Sever Negligence Action from Underinsured Motorist Claim.

In his Opinion, Judge Fornelli noted that his research confirmed that the appellate courts of Pennsylvania still have not addressed the issue of consolidation vs. severance of claims yet.

Judge Fornelli's Opinion confirms that his rationale in favor of severance largely dealt with Pa.R.E. 411 which precludes the mentioning of insurance during the trial of negligence claims. The court noted that allowing the claims to remain together would impermissibly allow the insurance issues pertinent to the UIM claim come into evidence on the negligence aspect of the claim.

Judge Fornelli felt that the introduction of evidence of the UIM insurance and the tortfeasors insurance would serve to confuse the jury and/or cause the jury to ignore the issue of whether the tortfeasor was negligent and instead focus on the fact that there were two insurance companies available to compensate the plaintiff.

The court more specifically noted that the joinder of these claims presents the problem of, in order to prove the UIM claim, the plaintiff would have to introduce evidence of insurance that, in a normal negligence claim, "would result in a mistrial." With some of the strongest language seen to date on this issue, Judge Fornelli further stated that "[i]t is simply not possible for either Defendant to get a fair trial unless these claims are tried separately."

Accordingly, the Court sustained the Preliminary Objections filed by the tortfeasor and dismissed the UIM claim without prejudice to the right of the plaintiff to re-file the UIM claim under a separate docket number.


I thank Attorney John Robb of the Pittsburgh, Pennsylvania office of Robb, Leonard & Mulvihill for bringing this case to my attention. The prevailing attorney from his office who handled this matter was Attorney Diana Frank.

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

I note that I have updated the Post-Koken Scorecard and that can be accessed by clicking on the date noted under "Post-Koken Scorecard" down on the right hand column of the blog.

Tuesday, October 19, 2010

Teleseminar Held on Barrick v. Holy Spirit Hospital

On October 19, 2010, I participated, as the defense perspective, in the Pennsylvania Association for Justice's teleseminar on the recent expert discovery decision of Barrick v. Holy Spirit Hospital. The panel of presenters also included Attorneys Scott Cooper, William Roeger, and Veronica Richards.

We provided a case analysis along with the plaintiff and defense perspectives on how this decision will impact civil litigation matters, particularly on the issue of the discoverability of written communications from counsel, plaintiff or defense, to that party's experts, whether they be a medical expert, a liability expert, or an economic expert. Tips were also provided on how to address correspondence to experts in the most neutral fashion possible given that the letters or emails are now discoverable.


By way of a status report on the case, the Petition for Re-Argument en banc before the Pennsylvania Superior Court filed by the Plaintiff's side is still pending. I will let you know when a decision comes down in that regard.



In the meantime, please do not hesitate to contact me if you have any questions regarding this decision or how to handle it in your practice in dealing with experts from this point forward. I can be reached at dancummins@comcast.net.

Free Auto Law Update Materials and Powerpoint Presentation Available from Tort Talk







If any claims professionals are interested, I am offering up free copies of materials providing a Pennsylvania Auto Law Update that I just presented to two other insurance company clients of mine. The update covers the following topics:

-Rescissions and Cancellations of Policies,

-Auto Policy Exclusions
-An Overview of the Litigation Process in Auto Law Cases

-Limited Tort Update

-Basic Anatomy Lessons pertaining to the Neck and Back

-The Tort Talk Top Ten Cases of 2010

-A Post-Koken Update

-Claims Rep Pet Peeves – a look at common claims rep complaints and suggestions on how to deal with them.


I also have a companion powerpoint presentation to go along with these written materials and I am available to give this presentation if desired. The presentation is approximately 90 minutes long.


Anyone desiring a free copy of these materials or a free powerpoint presentation of the materials in your offices, please contact me at dancummins@comcast.net.



The above photo was secured from www.freedigitalphotos.net and the photo was created by renjith krishnan. His portfolio may be viewed at


Monday, October 18, 2010

Pennsylvania Superior Court Upholds Multi-Million Dollar Medical Malpractice Verdict out of Lackawanna County

The Pennsylvania Superior Court has upheld a $27.3 million verdict from a Lackawanna County medical malpractice case that involved a baby who developed a brain injury and a diagnosis of cerebral palsy as a result of complications during the birth.

In an unpublished decision, the Superior Court dismissed the issues raised on appeal by the defendants, doctor Richard Behlke of OB-GYN Consultants Ltd. and Community Medical Center. Behlke was found 60 percent liable for the plaintiff's injuries and the medical center was found 40 percent liable.

According to an October 19, 2010 article by Gina Passarella in the Pennsylvania Law Weekly, the Community Medical Center settled its portion of the award and only Dr. Behlke and his practice pursued the appeal. In the interim, Behlke has reportedly assigned his rights to the Whites who just recently initiated a bad faith claim against his insurer.

Saturday, October 16, 2010

Judge Minora of Lackawanna County Rules on UIM Coverage Issue

Farmers New Century Ins. Co. v. Lambert, PICS Case No. 10-3232 (Lacka. Co. Oct. 4, 2010 Minora, J.).

This matter involved a declaratory judgment action brought by Farmers New Century Insurance Company seeking a judicial declaration that the carrier need not provide UIM coverage to the injured party because that party did not meet the definition of an insured under the policy.

The underlying facts involved a 2005 motor vehicle accident. The injured party was a passenger in one of the vehicles involved and sustained injuries as a result of the accident. It was undisputed that the injured party did not have any automobile insurance policy of his own and was not an insured under any other policy of insurance.

However, the injured party's mother had a policy with Farmers New Century Insurance Company and the insured attempted to tap into the UIM coverage available under that policy.

This was rejected by the Court on the basis that the undisputed evidence confirmed that the injured party did not reside with his mother on the date of the accident as required by the policy terms to implicate coverage for resident relatives of named insureds.

Judge Minora also rejected the injured party's argument that, because the insurance company had agreed to set up an underinsured arbitration panel, it was estopped from subsequently denying coverage. The Court noted that the fact that carrier agreed to set up an arbitration panel did not constitute a waiver of, or estoppel from, a denial of coverage. Simply put, Judge Minora concluded that the doctrines of waiver and estoppel could not serve to create a contract where none existed.

For these reasons, the Court granted Farmers' motion for summary judgment and entered a declaratory judgment of no coverage in favor of the carrier.

Source: Pennsylvania Law Weekly Case Digests.

Anyone desiring a copy of this case may call the Law Weekly's Instant Case Service at 1-800-276-7427 to request a copy for a small fee.

You may also click here to go to the Law Weekly's Instant Case Service online order form:

http://www.law.com/jsp/pa/pics_webform.jsp

As yet another alternative to secure a copy of this case, by the time you have received this email, I should have secured a copy of the Opinion and you may contact me for a copy of the same if you like at dancummins@comcast.net.

Tuesday, October 12, 2010

Times Leader Article on the Status of Luzerne County UIM Claims

Here's a link to an interesting article by Terri Morgan-Besecker from the October 12, 2010 Times Leader, a Luzerne County newspaper, providing a status on the handling of UIM claims in Luzerne County and around the state:

http://www.timesleader.com/news/After_high_awards__arbitration_avoided_10-11-2010.html


I send thanks to Attorney Matt Keris of the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this article to my attention.

SAVE THE DATE - Thursday, November 18th - NEPATLA 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

Monday, October 11, 2010

Judge Van Jura Weighs in on Collateral Source Rule and Enforceability of Release Issues

Balliet v. Toyota Motor Sales, USA, Inc., et. al. (Luz. Co. 2010 Van Jura, J.)

In the case of Balliet v. Toyota Motor Sales, USA, Inc., et. al., No. 358-Civil-2004 (Luz. Co. July 2, 2010, Van Jura, J.), Judge Joseph Van Jura of the Luzerne County Court of Common Pleas addressed a Plaintiff’s Motion In Limine to preclude evidence of (1) Social Security Disability Benefits, and (2) worker’s compensation benefits. The Court also addressed a Plaintiff’s Motion In Limine to preclude the testimony of a defense expert.

Balliet involved a products liability action arising out of an incident during which a Toyota forklift allegedly hit a fixed object, causing that object to strike and injure the Plaintiff. The Plaintiff allegedly sustained a serious neck injury that required a surgical repair.

As the incident occurred during the course of the Plaintiff’s employment, he was entitled to and did receive worker’s compensation benefits for both medical expenses and indemnity for lost wages. According to the Opinion, the entire worker’s compensation lien was waived by the insurance carrier. The Opinion notes that the Plaintiff also applied for and was awarded Social Security Disability Benefits.

In his pre-trial Motion In Limine, the Plaintiff sought to preclude reference to the Social Security Disability Benefits and the worker’s compensation benefits he received as being inadmissible under Pennsylvania’s Collateral Source Rule.

Although it was the Plaintiff who desired to keep out the amount of these benefits, it was the Plaintiff who, through his vocational expert, who wanted to bring in evidence of his total disability as adjudged by the Social Security Administration and in the worker’s compensation proceedings.

Judge Van Jura noted that the Collateral Source Rule is a rule of evidence that was intended to protect tort victims, by prohibiting a Defendant in a personal injury accident from introducing evidence of the amount of any benefits the Plaintiff may have received from a collateral source for the same injuries.


However, in this matter, it is the Plaintiff who wanted the jury to know that he was receiving these benefits which was a result of a determination that the Plaintiff was indeed disabled within the means of the Social Security Act and the rules pertaining to worker's compensation proceedings. Accordingly, Judge Van Jura found that the purposes of the underlying Collateral Source Rule, i.e., the protection of the Plaintiff and the prevention of a benefit to the alleged wrongdoer, were not implicated in this case. Consequently, the Court noted that such evidence may be admissible in this matter.

But Judge Van Jura did not go so far in ruling. Rather, since the Court noted that it was not in a position to determine the precise manner in which the Plaintiff intended to introduce this evidence at trial, the Court denied the Plaintiff’s Motion as premature.


The Court did state, however, that the Defendant obviously could not initiate the introduction of such evidence of the amount of Social Security or worker’s compensation benefits unless the Plaintiff had “opened the door” for such evidence to come in.



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





McDonald v. Whitewater Challengers, Inc., et al. (Luz. Co. 2010 Van Jura, J.)

In the case of McDonald v. Whitewater Challengers, Inc., et al., No. 6750-Civil-2008 (Luz. Co. September 15, 2010, Van Jura, J.), the Court denied a Defendant’s Motion for Summary Judgment based upon a Plaintiff’s signature on a Release form provided by the Defendant whitewater rafting company.

This matter involved a Plaintiff who was a school teacher and who was required by her employer to chaperone 8th grade school children on a whitewater rafting field trip down the Lehigh River. During the course of that trip, the Plaintiff’s raft struck a large rock, ejected the Plaintiff from the raft and onto a rock, allegedly causing her to sustain personal injuries.

According to the Court's opinion, two days prior to the field trip, the Plaintiff had signed a form “RELEASE OF LIABILITY” which, by its terms, released the Defendants “to the fullest extent permitted by law.”


Judge Van Jura noted that, under Pennsylvania Supreme Court precedent, in order for such releases to be binding upon the parties, each party may be a free bargaining agent and the release clause cannot be a contract of adhesion.


While Judge Van Jura noted that there is a slightly different standard applied to releases for purely recreational and sporting activities, as set forth in the recent Pennsylvania Supreme Court decision of Chepkevich v. Hidden Valley Resort, L.P., __ A.2d __ (Pa. 2010), where it was noted that participants may simply walk away from the recreational activity, in this case, the judge found that the Plaintiff-teacher was “told to sign the Agreement” by the headmaster of her school where she was employed. It was also evidenced that the Plaintiff-teacher was required, as part of her employment, to participate in after school activities, including chaperoning trips.

Given that the Plaintiff signed the release in the context of her employment and as an explicit or implicit requirement or expectation connected with her employment, based upon the record, it could not be said that she was merely free to walk away and refuse to sign the Agreement.


Since the Court was unable to conclude, based upon the evidence, that the Plaintiff signed the release under no compulsion, economic or otherwise, the Defendant’s Motion for Summary Judgment based upon the release form was denied.

Anyone desiring a copy of any of the above cases may contact me at dancummins@comcast.net.

Luzerne County Judge Joseph Van Jura Addresses Duty to Defend/Indemnify

In the case of Thyssenkrupp Elevator Corporation v. Humford Equities, No. 18390-Civil-2009 (Luz. Co. August 17, 2010 Van Jura, J.), Judge Joseph Van Jura granted summary judgment in a declaratory judgment action on the issue of a duty to defend and denied summary judgment on the issue of a duty to indemnify.

By way of background, Defendant, Humford Equities, had contacted with the Plaintiff, Thyssenkrupp Elevator Corporation, for the maintenance of three elevators located in the Wilkes-Barre Center.

While the elevator maintenance agreement was in effect, two separate personal injury actions were filed by different injured parties against Thyssenkrupp, as well as Humford, and other entities, alleging that Thyssenkrupp, failed to properly maintain one of the elevators at the Wilkes-Barre Center, allegedly resulting in personal injuries to the injured parties.

Thereafter, Thyssenkrupp filed this action for declaratory judgment alleging a breach of contact on the part of Humford Equity for failure to provide a defense and indemnity to Thyssenkrupp in the underlying personal injury actions.

In his Opinion, Judge Van Jura set forth the analysis applicable to reviewing duty to defend/duty to indemnify language. Applying the law to the contract language the Court found that the duty to defend provisions contained in the elevator maintenance agreement was sufficiently specific to evidence a clear intent of the parties. Accordingly, the Court found that Humford Equity was legally bound to defend Thyssenkrupp in the underlying lawsuits.

The court also held that, under the duty to defend language contained in the agreement, that duty was triggered by the filing of the lawsuits and Thyssenkrupp did not have to await for the resolution of the underlying lawsuits. In other words, Humford Equity’s position that Thyssenkrupp was intended, under the agreement, to have a post-litigation remedy by means of a legal action to recoup Thyssenkrupp’s self-expended defense costs was rejected.

The remaining portion of the Motion for Summary Judgment dealing with the duty to indemnify was denied as premature.

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

Upcoming October 19th CLE Tele-Seminar on Barrick Expert Discovery Case

On September 16th, the Superior Court rendered its decision in Barrick v. Holy Spirit Hospital. In a case of first impression, this decision has a far reaching impact in that all written communications between an attorney and an expert witness are now discoverable.

On October 19, the Pennsylvania Association for Justice (PAJ) is holding a 1 hour teleseminar (telephone seminar) that is worth 1 Substantive Distance Learning Credit. I will be speaking along with Scott Cooper, Bill Roeger and Veronica Richards.

We will provide a case analysis along with the plaintiff and defense perspectives on how this decision affects your future cases.

If interested, in registering for the seminar, click here: http://eseries.pajustice.org/source/Events/Event.cfm?Event=EW101910

(or call (215) 546-6451.)

Thanks.

Friday, October 8, 2010

Another Philadelphia County Post-Koken Case Transferred Out for Improper Venue

In the post-Koken case of Kochergina v. Liberty Mutual Ins. Co., et al., August Term 2010, No. 2880 (Phila. Co. October 1, 2010 Moss, J.), the court granted the tortfeasor's defendant's Preliminary Objections based upon an allegation of improper venue. The court ordered case transferred to Bucks County with all cost to be borne by Plaintiff. Judge Moss also ruled that the decision on the remainder of the Defendants' Preliminary Objections were deferred and left to be decided by the Bucks County Court of Common Pleas.


By way of background, the Plaintiff, Tatyana Kochergina, instituted this lawsuit to recover for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on or about August 22, 2008.

The Plaintiff and the tortfeasor Defendant both resided in Bucks County, the auto accident occurred there, and the Defendant was served in Bucks County. Nevertheless, the Plaintiff filed suit in Philadelphia, asserting that venue was proper there because the UIM carrier Defendant, Liberty Mutual, conducted business in Philadelphia.

The following issues were a few of those presented in in the Preliminary Objections filed by the tortfeasor Defendant in this matter:

a. Whether venue in Philadelphia County is inappropriate because the only basis for venue in this County is that plaintiff instituted a UIM claim against Liberty Mutual Insurance Company and alleges that Liberty Mutual conducts business in Philadelphia County, but Liberty Mutual and driver Evan Thaler are not “joint tortfeasors,” thus Pa.R.C.P. 1006 (c)(1) is not applicable, and defendant Thaler cannot be compelled to litigate where it might be appropriate based upon proper venue for UIM carrier, but not against him?

b. Whether defendant Thaler will be unfairly prejudiced when plaintiff seeks to prove her entitlement to “Underinsured Motorist Benefits” when the finder of fact is asked insurance coverage questions to determine if UIM coverage exists, is payable, and if Mr. Thaler was indeed “underinsured,” and if so, does Pa.R.C.P. 213 (b) mandate severance of the litigation between contractual and tort claims?

c. Whether, if the UIM claim against Liberty Mutual is transferred to Bucks County in response to Liberty Mutual’s Preliminary Objections based upon a forum selection clause, and the remaining claims against the driver, Thaler, is severed, the venue for the remaining claim against Thaler should be transferred to the Court of Common Pleas of Bucks County where plaintiff and defendant reside and was served, in which the cause of action arose, and where another action involving the same accident and same parties is pending?


It is also noted that Liberty Mutual filed Preliminary Objections as well based upon a forum selection clause in the policy.

As noted above, the Philadelphia Court of Common Pleas granted the improper venue Preliminary Objection and transferred the case to Bucks County. The decision was by Order only.

It is also noted that there is another lawsuit in Philadelphia pending filed by the passenger in the Plaintiff'’s vehicle. Another set of Objections are pending in that case.

I thank Anthony Damiano, Esquire, of West Chester, Pennsylvania, the prevailing defense attorney for the tortfeasor Defendant, for bringing this decision to my attention.

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

Lackawanna County Judge Nealon Rules on Discovery From "Treating Physician"

The trial in the personal injury claims of neurosurgeon, Dr. David J. Sedor, and his wife, against the Community Medical Center, Sky Medical, LLC, and Sky Orthopaedics, et.al., No. 05 CV 2143 (Lacka. Co. Nealon, J.) ended late last week in the Lackawanna County Court of Common Pleas before Judge Terrence R. Nealon.

Prior to the commencement of this trial, the Court issued a September 21, 2010 Opinion and Order denying the Plaintiffs’ Motion In Limine to preclude expert testimony by Seth Braunstein, M.D. was denied.

This case arose out of an incident during which a noted local neurosurgeon was struck by a hospital bed as it was being pushed through a hallway of a hospital by an orderly and another person. The Plaintiff, Dr. Sedor, alleges that his injuries from this incident, and the associated infections, unfortunately required him to eventually under a mid-thigh amputation of his right leg.

With regards to the Motion In Limine noted above, the Plaintiffs based their pre-trial motion upon Pa. R.C.P. 4003.6 which provides that, unless a Plaintiff’s treating physician is the attorney’s client or an actual or ostensible employee of the attorney’s client, “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.”

Under this Rule of Civil Procedure, if a party or an attorney privately contacts a Plaintiff’s treating physician and secures information in violation of this ban against ex parte communications, Rule 4003.6 provides a basis for precluding the culpable party or attorney from utilizing any improperly obtained information at trial.

The Defendants in this matter, in support of their medical causation argument, retained a Dr. Seth M. Braunstein of PENN Rodebaugh Diabetes Center to contest whether or not the Plaintiff’s ultimate need for an amputation of a leg related back to the subject incident or to an improper treatment of the Plaintiff’s type II diabetes.

The Plaintiffs pointed out, during the course of the Plaintiff’s treatment, the amputation procedure was performed at the hospital of the University of Pennsylvania, during which time the Plaintiff’s diabetic condition was treated by an endocrinologist who were affiliated with the PENN Rodebaugh Diabetes Center.

Although the Plaintiff did not specifically allege that Dr. Seth Braunstein personally treated the Plaintiff, the Plaintiff asserted that it was “probable” that all of the endocrinologists at the PENN Rodebaugh Diabetes Center, including Dr. Braunstein, were involved in or participated in his care and that it was “likely” that Dr. Braunstein had some contact with this colleagues regarding Dr. Sedor and his treatment.

The Defendants denied that Dr. Braunstein ever treated Dr. Sedor or billed him for any services or was otherwise in any way involved in Dr. Sedor’s care.

In his Opinion, Judge Terrence R. Nealon, reviewed the applicable case law as well as an article he himself had previously written on the topic that appeared in the Barrister magazine, and concluded that, under Pennsylvania law, “[a]lthough it is not necessary for the physician to physically touch or personally meet the patient in order to qualify as a “treating physician” under Rule 4003.6, some form of a physician-patient relationship must exist between the Plaintiff and the medical witness for the protection provided by the Rule to be applicable.”

Turning to the facts at case at hand, Judge Nealon found that Dr. Braunstein was not involved with Dr. Sedor’s treatment and there was no indication that Dr. Braunstein had ever officially, or even informally, and consulted by another other PENN Rodebaugh Diabetes Center doctor who treated Dr. Sedor.

Since there was no evidentiary basis upon which to find Dr. Braunstein to be a “treating physician” of Dr. Sedor under Rule 4003.6, the ex parte prohibition set forth in that Rule was found to be inapplicable to Dr. Braunstein in this case. As such, the Plaintiff’s Motion to Preclude the Expert Testimony of Dr. Seth Braunstein was denied.

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

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 dancummins@comcast.net.

Tuesday, October 5, 2010

An Increase of Jurisdictional Limit in Pennsylvania Magisterial District Courts Coming?

On October 5, 2010, the Pennsylvania House of Representatives passed House Bill 2172 which, in part, serves to increase the jurisdictional amount of the magisterial district courts from $8,000 to $12,000.00.

It appears that the Bill was previously approved by the Pennsylvania Senate. I believe it now goes on to the Governor for the final step of his consideration of the matter.

Here's a link to the Bill, with amendments noted: http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2009&sessInd=0&billBody=H&billTyp=B&billNbr=2172&pn=4432


This Tort Talk post takes me back to being a kid in my polyester Eagles pajamas, watching the Saturday morning cartoons, and seeing the Schoolhouse Rock cartoon song come on "How a Bill Becomes a Law" ("Oh I hope and pray that I will, but today I am still just a bill...."). Here's a link to that cartoon to take you back into time: http://www.youtube.com/watch?v=mEJL2Uuv-oQ



I thank Attorney and Clarks Summit, Pennsylvania Magisterial District Justice James Gibbons for bringing this to my attention.

Judge Sibum of Monroe County Allows For Expert Causation Testimony on Fibromyalgia

In an August 20, 2010 Order, without Opinion, in the case of Green v. Walls, No. 3512 - Civil - 2008 (Monroe Co. Aug. 20, 2010 Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas denied a Defendant's Motion in Limine seeking to preclude a Plaintiff's medical expert from testifying as to the causation of the Plaintiff's fibromyalgia condition as an alleged result of trauma.

I thank the prevailing Plaintiff's attorney, Jeremy D. Puglia, Esquire, of the Doylestown, Pennsylvania law office of Drake, Hileman & Davis, for bringing this decision to my attention.

Anyone desiring a copy of Judge Sibum's Order, without Opinion, may contact me at dancummins@comcast.net.


Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:

http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html

http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html


Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":

http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80

Monday, October 4, 2010

William A. Schnader Print Media Awards for Excellent Legal Writing

I learned that I have been selected as a second place winner in the Beat Coverage: Weekly Newspaper category of the 31st Annual William A. Schnader Print Media Awards for my Pennsylvania Law Weekly article, “A Growing Need For Guidance.” That article reviewed the ongoing struggles of the Pennsylvania trial courts to deal with the severance vs. consolidation issue with respect to third party and UM/UIM claims being asserted in the same lawsuit.

Here's a link to that article: http://www.jdsupra.com/post/documentViewer.aspx?fid=094d4288-d8da-47c7-a75f-86ae652d7ba5


I was also selected as the second place winner in the Editorial/Commentary Category for my Pennsylvania Law Weekly article “Take Me Out to the Ballgame: Little League tips for big league lawyers.” That article applied common exhortations heard during Little League baseball games to the practice of law.

Here's a link to that article: http://www.jdsupra.com/post/documentViewer.aspx?fid=203302fe-e893-40f6-aea4-e3e1099c2c94


That's now four (4) Schnader Print Media Awards in the past four years. In 2006, I was awarded first place in the Weekly Newspapers Category for two articles, “What I Learned From the Corleone Family: Lawyers can find universal principles and practical advice in The Godfather films” and “Open Umbrella: Courts face an open question about umbrella policy limits and the UIM credit."

In 2007, I was awarded first place in the Weekly Newspapers Category for second year in a row for “Dead or Alive? The Assumption of Risk Doctrine in Pennsylvania.”

These articles, as well as all of my other articles can be accessed at any time my JDSupra.com webpage at http://www.jdsupra.com/profile/danielcummins_docs/.


This annual excellence in legal writing competition is sponsored by the Pennsylvania Bar Association and the national law firm of Schnader Harrison Segal & Lewis, LLP. I will be receiving a plaque and a small prize in recognition for these articles.

Bill Rice Memorial Service This Friday

This Friday, October 8, 2010, at 2 p.m., in the Pike County Court of Common Pleas in Milford, Pennsylvania, there will be a memorial service for my friend and former co-law clerk, Attorney Bill Rice. Bill recently passed away at the too young age of 48 after a battle with cancer.

All are invited to attend the service. The service will be presided over by Senior Judge Harold A. Thomson, Jr. (for whom Bill and I worked as law clerks), President Judge Joseph Kameen, and Judge Gregory Chelak. Friends and colleagues of Bill Rice will be invited to say a few words in his honor.

The proceedings will be transcribed by the Pike County Court Reporter and the transcript will be filed for all time in the Prothonotary's Office and a copy of the transcript will be given to the Rice family which includes his wife and four young daughters.

Friday, October 1, 2010

Different Standards For Cancellations of Homeowner's Insurance Policies and Automobile Insurance Policies

In a September 10, 2010 decision, the Commonwealth Court of Pennsylvania ruled that proper cancellation of a homeowner's insurance policy, by statute, requires that the carrier establish actual receipt of the notice of cancellation by the insured.

In the case of Nationwide v. Insurance Department, No. 411 C.D. 2010, 2010 WL 3516455 (Pa.Cmwlth. 2010 Leadbetter, P.J., Leavitt, J., Kelley, S.J.)(Opinion by Kelley, S.J.), the court ruled that the cancellation of the homeowner's policy in this case, for non-payment of a premium, was not effective when the notice of cancellation was mailed to the last known address of the insured and the notice was returned to the carrier as undeliverable.

Here is a link to the Nationwide decision online:

http://www.aopc.org/OpPosting/Cwealth/out/411CD10_9-10-10.pdf


This is to be contrasted with the context of cancellation of automobile insurance policies. It has also been repeatedly held that it is not necessary in automobile insurance cases for a carrier to show that the required notice of cancellation was actually received by the policy holder; all that is required is a showing that such cancellation notice was sent. See 40 Pa. C.S.A. §991.2006; Caine v. Commonwealth, Department of Transportation, 811 A.2d 38 (Pa. Cmwlth. 2002); Beitler v. Commonwealth, Department of Transportation, 811 A.2d 30 (Pa. Cmwlth. 2002); Lewis v. Insurance Department, 935 A.2d 36 (Pa. Cmwlth. 2007).

It has additionally been held in the auto policy context that any mere denial by any party that written notice concerning a cancellation of an automobile insurance policy was received in the mail is not sufficient to overcome the presumption that the notice was indeed received. Nationwide Insurance Company v. Pennsylvania Insurance Department, 779 A.2d 14 (Pa. Cmwlth. 2001).

I recently prevailed in securing a declaratory judgment that an auto policy was properly cancelled for non-payment of a premium in the Schuylkill County case of Safe Auto v. Soto. Anyone desiring to see the Complaint, Motion For Summary Judgment, Brief, and Court Opinion from that 2010 case may contact me at dancummins@comcast.net.

(Of course, past successes do not guarantee that similar results will be secured in future cases--each case must be handled on its own merits.).

OVER FOUR HUNDRED (400) TORT TALKERS

Tort Talk email subscribers now number in excess of 400 people in the insurance and legal industry!

I send great thanks to all of the Tort Talkers who have signed up as email subscribers and hope to keep this blog informative, and (hopefully) interesting and entertaining. I am also very grateful and thank those of you who have advised me and sent me important decisions and news to post here on Tort Talk.

For those of you who may also be on Linkedin, I invite you to send me an invitation to connect with you if you are willing to do so. Here's a link to my Linkedin profile:

http://www.linkedin.com/profile/view?id=45741994


In the meantime, should I be able to assist anyone by providing a copy of any of the decisions I may have, or in any other way up here in Northeastern Pennsylvania, please do not hesitate to contact me at dancummins@comcast.net.

Here is a link to my firm's web page: http://www.foleycognettilaw.com/

Here is a link to my online resume: http://www.avvo.com/attorneys/18503-pa-daniel-cummins-610885.html

The New Discovery Battlefield: Social Networking Sites

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

The case of McMillen v. Hummingbird Speedway, Inc., PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), involving 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, 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 lawsuit, access to those sites during discovery should be freely granted.

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 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 noted 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, therefore, protect it from disclosure. President Judge Foradora noted that no binding or persuasive authority was cited by the Plaintiff.

Judge 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 stated that these communication websites expressly noted the possibility of disclosure.

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 may be relevant in proving the truth or falsity of the Plaintiff’s alleged injuries, the Court found that the overriding goal 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, Judge 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.

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and provide the PICS number noted above.

Source: Pennsylvania Law Weekly Case Digests, September 21, 2010.

I plan to expand on this topic in my next article, which is set to appear in the Pennsylvania Law Weekly near the end of October.

Pennsylvania Supreme Court Reaffirms Its Own Decision to Allow Nurses to Testify on Causation

In its September 29, 2010 Opinion in Freed v. Geisinger Medical Center, 2010 WL 3769276 (Pa. Sept. 29, 2010 Todd, J.), the Pennsylvania Supreme Court, after having granted a rare reargument 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. "

With its original holding, the Supreme Court overruled sua sponte its prior decision in Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997), wherein this Court had held a nurse was precluded from offering opinion testimony regarding the specific identity and cause of a medical condition because such testimony constituted a medical diagnosis, which a nurse is precluded from making under the Professional Nursing Law.

The Supreme Court concluded in its original Opinion "that Flanagan was inherently flawed because it applied a statute-the Professional Nursing Law-governing the specific practice of nursing to the distinct area of expert testimony in a court of law, which is governed by rules of evidence, rules of civil procedure, and common law rules regarding expert witnesses."

For more information on this case, here's the link to my Tort Talk post on the original holding:

http://www.torttalk.com/2009/06/pennsylvania-supreme-court-reverses.html


Here's the link to the Court's decision online (the links to one concurring and two dissenting opinions are not provided):

http://www.aopc.org/OpPosting/Supreme/out/J-117-2009reargmo.pdf



I send thanks to medical malpractice defense attorney Matt Keris, Esquire of the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.

Another Luzerne County Post-Koken Decision in Favor of Consolidation of Claims

On September 21, 2010, Judge Joseph M. Cosgrove of the Luzerne County Court of Common Pleas issued an Opinion and Order in the post-Koken case of Borthwick v. Webb and GEICO, No. 2735 - Civil - 2010 (Luz. Co. 2010 Cosgrove, J.), denying the Preliminary Objections of Defendant GEICO, the UIM carrier, seeking a severance of the first party claims against it(breach of contract (UIM) and Bad Faith) from the third party liability claims, and, in the alternative a severance of the UIM claims and Bad Faith claims filed against GEICO.

In his Opinion, Judge Cosgrove noted that “[t]hese questions are hardly novel, having been addressed by courts throughout this Commonwealth (including this Court) with increasing frequencies….”

In this regard, the Court, by footnote, cited my article, “A Growing Need for Guidance,” from the June 29, 2010 Legal Intelligencer [Pennsylvania Law Weekly]. The Court noted that, in that article, the Luzerne County Court of Common Pleas was noted to be consistent in refusing requests to sever underinsured or uninsured motorist claims from the third party liability case.

Judge Cosgrove found that there was nothing in the record in the Borthwick case before him which persuaded him to hold otherwise. As such, he denied the Preliminary Objections of the UIM carrier seeking a severance of the claims presented.

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


I thank the prevailing Plaintiff's attorney, James J. Conaboy, Esquire of the Scranton law firm of Abrahamsen, Conaboy & Abrahamsen for forwarding this decision to my attention for inclusion in the Post-Koken Scorecard.

The Post-Koken Scorecard can be accessed by scrolling down the right-hand column of Tort Talk and clicking on the date under "Post-Koken Scorecard." I plan to update the Scorecard over the weekend.