Thursday, October 27, 2011

Judge Terrence Nealon Holds Claims Reps' Mental Impressions From Before Suit Filed Are Protected

In an apparent case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed an important discovery issue surrounding the scope of discoverability of a claims representative's mental impressions in yet another of his opinions handed down in the case of Church of the Forgotten Souls v. NGM Ins. Co., No. 2010 - CV - 7078, 2011 WL 5244490 (C.P. Lacka. Co. Oct. 5, 2011 Nealon, J.).

The issue in this case arose from a subpoena sent by the Plaintiff to secure a "complete copy" of the adjuster's file, including all documents related to the initial handling of the file in this property damage case.  The defendant carrier objected to the wide scope of the subpoena request, particularly with respect for the request for the production of the adjuster's mental impressions, conclusions and opinions on the file.

The Plaintiff argued that only those mental impressions, conclusions, and opinions of the adjuster created after the filing of the lawsuit were protected under the Rules of Discovery.  Judge Nealon disagreed.

Rule 4003.3 provides work product protection for an attorney's mental impressions prepared in anticipation of or connection with litigation, as well as for a non-attorney representative's opinions regarding the value or merit of a claim or defense that were prepared in anticipation of litigation (e.g., a claims representative, property loss adjustor, etc.).

Noting that there were no appellate cases on point on the question presented, and a dearth of any trial court opinions to refer to for that matter, Judge Nealon found that since there was no temporal limitation expressed in the Rules, all mental impressions, conclusions, or opinions generated in anticipation of litigation were therefore protected from discovery in that litigation.

In other words, the court found that there was no definitive line of demarcation---the filing of suit---for non-attorney mental impressions to be deemed "in anticipation of litigation."  As such, according to this ruling by Judge Nealon, Rule 4003.3 protects the adjuster's or claims representative's mental impressions expressed and documented in the file both before and after the commencement of the lawsuit.

Anyone desiring a copy of this opinion by Judge Nealon in the case of Church of the Forgotten Souls v. NGM Insurance Company may contact me at  Please be sure to specify that you would like the "discovery" opinion on this case as I posted a summary of a more general opinion by Judge Nealon in this same case last week pertaining to property damage subrogation issues.  Thanks.

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