Wednesday, March 16, 2011

Judge Terrence Nealon of Lackawanna County Addresses Issue of Discovery of Prior Similar Incidents

On March 7, 2011, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued an Opinion and Order in the premises liability case of Walsh v. Generations Management Services, LLC, et.al., No. 2009-Civil-5715 (Lacka. Co. March 7, 2011, Nealon, J.) in which the Court ruled on various issues pertaining to the discovery of evidence of prior falls at an assisted living residence.

An action was brought on behalf of a resident who fell at an assisted living residence on several occasions. The claim was that the facility had allegedly not provided proper supervision of its residents and/or training for its staff.

The Plaintiff had inquired whether there have been other similar incidents at the same location as well as at other locations owned by business in the surrounding counties. The Defendant objected to these discovery requests on the grounds that the “information requested is not reasonable calculated to lead to the discovery of relevant evidence.”

When this matter was initially before the Lackawanna County Special Trial Master, the Defendants were ordered to produce responses to these discovery requests for a time frame of seven (7) years prior to the incident and up to the present time.

On appeal up to Judge Nealon, the court reviewed the law pertaining to the discovery of prior incidents and held that the Defendant should be required to produce information relating to prior falls. The Court ruled in this fashion after the Plaintiff’s attorney agreed to narrow the discovery request to prior falls at the facility which required the residents to receive outside medical attention.

Judge Nealon did, however, overrule that part of the discovery order issued by the Special Trial Master requiring the production of information concerning falls which occurred after the date of the Plaintiff’s last fall and up to the present as evidence of subsequent falls could not be used to demonstrate any prior notice or knowledge of any allegedly dangerous condition.

The Court also sustained the defense objection to the Interrogatories seeking information regarding prior falls at other facilities owned by the same Defendants.

In his Opinion, Judge Nealon also addressed the discovery dispute over the requested production of the facility’s quality management plan, emergency medical plan and staff training relative to proper care for residents with dementia or cognitive problems. After noting that the Pennsylvania Code requires these types of facilities to maintain such documentation, the Court held that such information was discoverable regardless of whether the facility at issue was licensed as a personal care home or an assisting living residence.

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

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