Thursday, April 7, 2011

Judge Minora of Lackawanna County Addresses Parameters of Discovery of Expert Information

In a recent March 10, 2011 Opinion, by Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas in the case of AJT Property vs. Lexington Ins. Co., No. _______ (Lacka. Co. March 10, 2011, Minora, J.), in which the Court permitted the Defendants to take the deposition of the Plaintiff’s expert witnesses, limited to information obtained not in anticipation of litigation.

This matter arises out of an insurance dispute pertaining to flood damage to the Plaintiff’s property. The issue is whether or to the Plaintiff’s property was covered under its flood insurance policy with the Defendant, Lexington Insurance Company.

Following the loss, the Plaintiff retained the services of an insurance expert and a public adjuster to assist the Plaintiff in the recovery on its claim. The public adjuster investigated events surrounding the Plaintiff’s loss. Both the public adjuster and the insurance expert evaluated the Plaintiff’s claims and reported to third parties on these issues.

At some point, the Plaintiff retained both the insurance expert and the public adjuster as experts in anticipation of litigation. However, the date of the retention of these individuals as experts was in dispute.

The Defendant, Lexington Insurance Company, served the Plaintiff with notices of intent to serve subpoenas upon the insurance expert and the public adjuster. The Plaintiff objected. A special trial master on discovery issues in the Lackawanna County Court of Common Pleas overruled the Plaintiff’s objections and allowed the insurance company to schedule the depositions of the experts. The Plaintiff then filed the Motion at issue to prevent the depositions.

The Plaintiff contended that the depositions would violate Pa. R.C.P. 4003.5(a)(1) and (2). The Defendant insurance company asserted that the experts had knowledge of facts surrounding the Plaintiff’s claims and that they were subject to discovery in that regard.

Judge Minora noted that experts who know facts or hold opinions not required or developed in anticipation of litigation are subject to discovery under the general rules of discovery. The Court found that these experts were originally hired to determine the value of Plaintiff’s losses and to assist in a possible amicable resolution of the matter, and were not initially retained in anticipation of litigation.

Although the experts were, at some point, retained as expert witnesses for trial, there was no clear evidence as to when this decision was made.

In accordance with relevant case law and the Rules of Civil Procedure, Judge Minora determined that the information obtained by the insurance expert and the public adjuster not in anticipation of litigation was discoverable by the Defendant insurance company. The Court allowed the carrier to depose the experts as to dates the experts perceived that they were retained as experts. Once that date was established, the Defendants were permitted to continue the depositions of both experts pertaining to the information they obtained prior to their retention as experts that was not in anticipation of litigation.

Judge Minora further clarified that information prepared by the insurance expert and public adjuster in their role as expert witnesses, including their expert opinions for use at trial, was not subject to discovery by deposition except as may be permitted under Pa. R.C.P. 4003.5(a).

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


Source:  Case Digests of the Pennsylvania Law Weekly

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