Tuesday, June 14, 2011

Judge Terrence R. Nealon of Lackawanna County Addresses Lay Witness Testimony on Speed, Delay Damages, and An Issue I Bet You've Never Seen Before

In his recent decision in the case of Hodin v. Frekey, No. 2007 - CV - 1504 (Lacka. Co. June 9, 2011 Nealon, J.), Judge Terrence R. Nealon addressed three issues--a standard auto law issue, a second issue so unique John Grisham probably couldn't have come up with it, and a third issue pertaining to a claim for delay damages after a verdict.

The auto law issue concerned the question of whether a plaintiff who introduced lay testimony regarding the defendant's speeding was required to also introduce expert testimony to establish a causal connection between the speed of the defendant's vehicle and the accident. 

On this issue, the defense filed a Motion for Judgment Notwithstanding the Verdict on the causation question.  Judge Nealon denied this post-trial motion and ruled that Plaintiff introduced sufficient lay testimony and circumstantial evidence establishing that defendant’s speeding was a factual cause of the accident.  

The court found that it was therefore unnecessary for the Plaintiff to present expert testimony to establish that causal connection since that causation determination involved a matter within the jurors’ common understanding and experience. 

Therefore, the defendant’s request for JNOV was denied.  This case supports the proposition that properly presented lay witness testimony on the speed of vehicles involved in a motor vehicle accident can be admissible at trial in the absence of related expert testimony.

The other issue involved an issue related to the jury selection process in the case.  According to Judge Nealon's Opinion, after a prospective juror was dismissed from the matter after not having been selected, she thereafter contacted the office of defense counsel in the case near the end of the first day of trial to advise that her daughter was an acquaintance to the Defendant.  The dismissed juror also noted that she herself was actually a witness to the subject accident and could offer information beneficial to the defense on the liability issues.  This information was never disclosed by the prospective juror during the voir dire proceedings.

Accordingly, the defense made a request to add the new witness to the defense's witness list.  Plaintiff's counsel objected on the grounds of late notice and given that the Plaintiff's witnesses had already testified and had been released from their subpoenas to attend trial. The court also noted that Plaintiff's attorney had emphasized information on the liability witnesses known during his opening statement that stated that there were no other witnesses that could speak to the facts of the accident.

At trial, Judge Nealon ruled that the prejudice to the Plaintiff would be insurmountable  if the prospective juror were allowed to testify as a witness.  The court reasoned:

"I can’t think of any greater prejudice for your adversary in this case than to have already opened and told the jury who all the witnesses were and told the jury what those people would say, and then be in a position where we’re down to the final witness in the case and have to suddenly say to the jury “I was wrong,…this other witness surfaced yesterday, and oh, by the way, you might recognize her, she was a member of the jury panel.”

As such, Judge Nealon denied the defense request to call the dismissed juror as a witness and, in this Opinion on the post-trial motions, offered further support for this decision.

Judge Nealon's Opinion is also notable for his pointing out that the Plaintiff's request for Rule 238 Delay Damages would be granted, in part, because the defense never made a written settlement offer prior to trial.  A reading of Rule 238 reveals that a Plaintiff's request for delay damages could be impacted where the defense has made a written offer that comports with the language required in such a written offer by the Rule.


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

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