Tuesday, December 27, 2011

A DELVE INTO 2012 -- Article on Anticipated Changes in Civil Litigation in 2012 and Beyond

The following article of mine, which predicts expected changes in civil litigation law in 2012, appeared last week in the December 20, 2011 edition of the Pennsylvania Law Weekly.

A Year of Change for Civil Litigation

Wave of Legislation, Case Law Is Poised to Alter the Environment for Tort Cases in 2012


Daniel E. Cummins

Pennsylvania Law Weekly

December 20, 2011

My past few columns have provided year-end reviews on the topics of general civil litigation, automobile accident law and bad-faith litigation. This week, I venture to look into the future to give an overview of anticipated changes that can be expected to occur in the civil litigation arena over the next year or so.


A number of legislative changes that would impact civil litigation matters are anticipated for 2012.

According to a Nov. 29 article in The Legal Intelligencer headlined "State Legislator Eyes Changes to Jurisdiction Instead of Venue" by Amaris Elliott-Engel, there is a movement underway in the Pennsylvania legislature to change the venue rules applicable to Pennsylvania personal injury matters through a change in the law pertaining to appropriate jurisdiction by the trial courts over civil litigation matters.

Currently, under the venue rules found at Pa.R.C.P. 1006, a civil litigation defendant can be sued in the county where the underlying incident occurred, where the defendant resides, or where the defendant may be served with original process of the lawsuit.

Elliott-Engel reported state Rep. Bryan Cutler, R-Lancaster, is proposing legislation on proper jurisdiction that would add the plaintiff's county of residence to the current list of counties approved as proper venue.

One giant obstacle in the way of the passage of this potential legislation is the fact that the Pennsylvania Constitution vests the authority to create the rules for the civil litigation system solely to the Pennsylvania Supreme Court. Nevertheless, this potential legislation on jurisdiction over civil litigation matters is one to keep an eye on.

Other civil litigation related legislation that may be considered by the Pennsylvania General Assembly over the next year concerns minimum personal automobile insurance liability limits.

The current minimum liability limits for personal automobile insurance policies were first put in place approximately 30 years ago in the 1970s.

On Nov. 14, SB 1339 was introduced in the General Assembly. Under this bill, the minimum required automobile liability insurance for personal vehicles in Pennsylvania would be increased from the current amounts of $15,000/$30,000 to $30,000/$60,000. After being introduced earlier this year, the bill was quickly pulled but is expected to be addressed again in 2012.

Other legislation was actually passed over the past year that will have an impact in the automobile accident litigation arena in 2012 and beyond.

In November, Gov. Tom Corbett signed into law a prohibition against texting while driving. The new law, which will go into effect during the early part of 2012, bans sending, reading or writing a text-based message from a wireless phone, personal digital assistant, smartphone, portable or mobile computer, or other similar devices.

The law further provides that texting while driving will be a primary offense in Pennsylvania, meaning a police officer can pull a driver over for this reason alone. The offense will carry a potential $50 fine.

According to an Associated Press article on the topic, prior to the passage of this law, provisions pertaining to bans on the use of cellphones by drivers without hands-free devices were taken out. The article goes on to note that those cellphone ban provisions may be addressed in later legislation.

Social Media Discovery

Over the past year or so, there have been a handful of trial court decisions issued on social media discovery issues. Thus far, it appears that the majority of those few cases that have come down to date have ruled in favor of allowing for the discovery of the parties' Facebook and MySpace pages and the like.

Those state court cases in favor of allowing discovery of social media information include McMillen v. Hummingbird Speedway out of Jefferson County, Zimmerman v. Weis Markets out of Northumberland County and Largent v. Reed out of Franklin County. Discovery of a plaintiff's Facebook information has also been allowed in the federal Middle District Court decision of Offenback v. L.M. Bowman Inc.

Discovery in this regard was not allowed in the Bucks County case of Piccolo v. Paterson where the court apparently reviewed the request for additional photos of the plaintiff's scarring injury as cumulative where the plaintiff had already provided the defense with numerous other such photos in discovery.

Just recently, discovery of information on a plaintiff's personal and business-related Facebook and MySpace pages was not allowed in the Luzerne County Court of Common Pleas case of Kalinowski v. Kirschenheiter and National Indemnity Co.

The Kalinowski case arose out of a motor vehicle accident. During the plaintiff's deposition, the defense learned that the plaintiff had Facebook and MySpace pages both on a personal basis and separately with respect to a bar he owned and operated. At the deposition, the plaintiff refused to disclose his login information or otherwise agree to allow the defense to view the nonpublic portions of his Web pages.

Following the deposition, the defense made another request for access to the plaintiff's Facebook and MySpace pages and, when that information was not forthcoming, filed a motion to compel along with a motion for an order directing the plaintiff to preserve the contents of the Web pages.

The plaintiff opposed the motion to compel arguing that the defense was seeking additional information on tangential issues and as part of an effort to embarrass the plaintiff. The plaintiff also argued that compelling him to grant access to his Web pages would compromise his privacy interests. The plaintiff additionally noted that the request for access to his business-related Web pages was irrelevant given that the plaintiff was not pursuing any wage loss claims. Finally, the plaintiff asserted that the defense had already discovered information from the publicly available portions of the Facebook and MySpace pages.

In his order without opinion, Luzerne County Common Pleas Court Judge Joseph Van Jura denied the defense motion to compel without prejudice, apparently leaving the door open for the issue to be revisited. The court also granted the defense motion to preserve and ordered the plaintiff not to delete any of the content on the websites.

With this growing split of authority on social media discovery issues, it can be reasonably anticipated that this issue will continue to trouble the trial courts across Pennsylvania in 2012. If we are lucky, perhaps this issue will make it up the appellate ladder over the next year so as to provide the courts and litigants with some guidance on how these types of discovery requests should be handled.

Expert Discovery

On Nov. 23, an en banc panel of the Pennsylvania Superior Court issued an opinion that served to overturn the trial court's decision to allow one party to review written communications sent by the opposing counsel to the opposing party's expert in the case of Barrick v. Holy Spirit Hospital. For the purposes of full disclosure, I note that I wrote the amicus curiae briefs on behalf of the Pennsylvania Defense Institute in this matter.

The en banc Superior Court's decision in Barrick serves to clarify how that court views the interplay between Pa.R.C.P. 4003.3 and 4003.5 — that is, the balance between the protections of the attorney work-product doctrine and the discoverability of the bases for an expert's opinion. In its most recent decision, the Barrick court provided blanket protection to litigating attorneys in terms of the content of the letters and e-mails they send to their trial experts in anticipation of the trial.

As of the writing of this article, it still remains to be seen whether the Barrick decision will be appealed up to the Pennsylvania Supreme Court.

In any event, the Supreme Court may address the issue by way of an amendment to the Pennsylvania Rules of Civil Procedure.

Earlier this year, the Pennsylvania Supreme Court Civil Procedural Rules Committee published a draft of its Proposed Recommendation No. 248, seeking to amend Pa.R.C.P. 4003.5, which pertains to expert discovery. Significantly, the proposed amendment, like the recent Barrick decision, expressly prohibits the discovery of any kind of communications between any attorney and his or her client's expert.

This proposed recommendation, if adopted, will have the effect of bringing the state court practice more in line with new federal practice that went into play about a year ago.

Revisions to Rule 26 of the Federal Rules of Civil Procedure, which took effect about a year ago on Dec. 1, 2010, resulted in a significant change in the long-standing federal court procedure regarding the discovery of expert witness reports.

Relying upon the work-product doctrine, Federal Rule of Civil Procedure 26 now no longer requires full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the rule's last revision back in 1993. Still permitted is the full discovery of the expert's final opinion and of the facts or data used to support the opinions.

It remains to be seen whether additional court decisions or rule changes on this important expert discovery issue will take place in 2012.

Post-Koken Litigation

With many of the novel post- Koken automobile accident line of cases now moving beyond the pleadings and discovery phases and reaching the trial stage, it is anticipated that a number of decisions on trial-related issues will be handed down over the next year by the courts of common pleas across the Commonwealth.

Among those recurring issues will be whether the negligence claims asserted against the defendant driver should be bifurcated into a separate trial from the trial on the companion breach of contract claims asserted against the plaintiff's underinsured motorists insurance carrier.

At least one such decision was handed down on this issue in the Lehigh County Common Pleas Court post- Koken case of Purta v. Blower and Erie Insurance Exchange.  In Purta, Judge Edward D. Reibman addressed a motion to severance filed by the UIM carrier defendant to bifurcate the jointly filed third party and underinsured motorist claims into separate trials.

In a detailed order, Reibman granted the UIM carrier's motion for severance and ordered that the case proceed to a first trial on the negligence claims presented with only the plaintiffs and defendant tortfeasor being involved. That trial would be followed, if necessary, by a second trial of the plaintiff's case against the UIM carrier on the breach of contract claim.

Reibman held that "pursuant to the criteria set forth in Pa.R.C.P. 213(b), and so as to avoid confusion of the threshold issues of alleged liability and damages caused by the Defendant Blower as the tortfeasor, the claims against Erie will be severed and addressed in a subsequent trial if necessary."

It is noted that this bifurcation issue is also currently pending in two cases in the Lackawanna County Common Pleas Court. One case, Eisbacher v. Davidson and Geico, is pending before Judge Robert A. Mazzoni, and the other case, Isles v. Smith and Erie Ins. Exchange, is currently before Judge Carmen D. Minora.

As these and other cases make it through the trial stage and beyond in 2012, the trial courts and litigators can hopefully anticipate that a variety of these novel post-Koken issues will finally reach the Pennsylvania Superior Court for long-awaited appellate guidance.

Author's note: I plan to touch upon all of these topics at the CLE seminar sponsored by my blog Tort Talk (www.TortTalk.com), the Tort Talk Expo 2012 [on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.].

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