Saturday, December 22, 2012

ARTICLE: Year-End Review of Important Civil Litigation Cases and Trends

A Shifting Landscape: Changes Keep Things Interesting for Civil Litigators


Daniel E. Cummins

Pennsylvania Law Weekly
December 12, 2012

With the recent re-election of President Obama, the recurring issue of national tort reform, which was quiet during this presidential campaign, goes back on the shelf to gather more dust until another election day. In the meantime, jurisprudence in Pennsylvania meandered on and off the straight path of stare decisis with notable shifts in the law over the past year.

This second part of a two-part column analyzes the important trends and cases of the year 2012 in general Pennsylvania civil litigation matters.

A Short-Handed High Court

With a number of important issues headed toward, or already before, the Pennsylvania Supreme Court, it is unfortunate that there are now only six sitting justices on that bench. Earlier this year, Justice Joan Orie Melvin was suspended from the court to address criminal allegations filed against her pertaining to charges that she used legislative and judicial staff to perform campaign work.

Now with only six justices sitting on the bench, under the applicable rules, whenever the Pennsylvania Supreme Court comes down with a 3-3 split decision on any matters before it, the lower appellate court's ruling will be allowed to stand.

Such results are rife with uncertainty and do not provide the strong guidance derived from final word on the matter by the highest court in the state as intended under the judicial system set up by the Pennsylvania Constitution.

As noted by The Legal appellate law columnist Howard J. Bashman, one wise proposal to remedy this precarious situation would be to have appeals from the Superior Court heard by the six Supreme Court justices and a randomly assigned Commonwealth Court judge and vice versa for appeals from the Commonwealth Court.

It is unclear if the Pennsylvania Supreme Court could adopt this proposed procedure on its own or if legislative action would be required. Either way, something should be done to remedy this unfortunate and troublesome situation for now and in the event it recurs in the future.

Products Liability Mixed Signals

One important issue that could benefit from a full complement of Pennsylvania Supreme Court Justices is the issue of whether the standard found in the Restatement (Second) of Torts or the different standard adopted in the Restatement (Third) of Torts should be utilized in products liability cases.

To date, the Pennsylvania Supreme Court has not squarely ruled upon this issue.

While the Restatement (Second) calls for a more narrow application of negligence principles in the products liability context, the Restatement (Third) decreases the emphasis upon the concepts of "intended use" and "intended user," along with placing a greater emphasis on the doctrine of "reasonable foreseeability," all of which changes arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product.

The Pennsylvania federal courts have struggled with this very issue in the past year or so in the absence of concrete guidance from the Pennsylvania Supreme Court. Although the U.S. Court of Appeals for the Third Circuit has repeatedly stated or suggested in its recent decisions in Berrier v. Simplicity Manufacturing, 563 F.3d 38 (3d Cir. 2009), Covell v. Bell Sports, 651 F.3d 357 (3d Cir. 2011), and Sikkelee v. Precision Automotive, 2012 U.S. App. LEXIS 22185 (3d Cir. 2012),that federal trial courts should apply the Restatement (Third) in products liability cases, several federal district court judges have disagreed.

Several federal district court judges have noted that while the Third Circuit has made repeated predictions that the Pennsylvania Supreme Court would adopt the Restatement (Third), the Pennsylvania Supreme Court declined to adopt the Third Restatement analysis despite an opportunity to do so in the decision of Beard v. Johnson & Johnson, 41 A.2d 823 (Pa. 2012).

According to a recent compilation by Law Weekly reporter Amaris Elliott-Engel, those federal district court judges who have presently chosen to follow the Restatement (Second) in products liability cases contrary to the Third Circuit's analysis include Judge John E. Jones of the Middle District of Pennsylvania in Sikkelee v. Precision Automotive, 2012 U.S. Dist. LEXIS 91497 (M.D.Pa. 2012), Judge Nora Barry Fischer of the Western District of Pennsylvania in Gross v. Stryker, 858 F.Supp.2d 466 (W.D.Pa. 2012), and Judge Arthur J. Schwab of the Western District in Konold v. Superior International Industries, 2012 U.S. Dist. LEXIS 156200 (W.D.Pa. 2012).

Elliott-Engel also noted in her recent article that federal district court judges who have chosen to instead apply the Restatement (Third) under the Third Circuit's prediction include Judge Mark R. Hornak of the Western District in his decisions in the cases of Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 103734 (W.D.Pa. 2012), and Lynn v. Yamaha Golf-Car, 2012 U.S. Dist. LEXIS 115936 (W.D.Pa. 2012), Judge Donetta W. Ambrose in Zollars v. Troy-Built, 2012 U.S. Dist. LEXIS 148614 (W.D.Pa. 2012), and Judge Maurice Cohill Jr. in Spowal v. ITW Food Equipment Group, 2012 U.S. Dist. LEXIS 47614 (W.D.Pa. 2012).

It appears that litigators and the lower courts will have to continue to struggle with this issue until it reaches the Pennsylvania Supreme Court again. Hopefully, by that time, there will be a full complement of justices on the bench.

Discoverability of Attorney-to-Expert Communications

Another issue that may be hurt by the less-than-full complement of Supreme Court justices is the issue of whether communications by an attorney to an expert retained by that attorney are discoverable. Recently, the court granted allocatur to squarely address this issue in Barrick v. Holy Spirit Hospital, 52 A.3d 221 (Pa. 2012).

For full disclosure purposes, it is noted that I drafted the amicus briefs for the Pennsylvania Defense Institute at the Superior Court level.
By way of background, the Dauphin County trial court ruled in Barrick that these types of communications were indeed discoverable, particularly where an in camera review by the court of the written communications by the plaintiff's counsel with the plaintiff's medical expert confirmed that this contact from the attorney could have, in the words of the trial court judge, "materially impacted" the expert's formulation of his opinion.

Obtaining discovery on these types of communications is important in that it will allow opposing counsel to cross-examine on whether an expert's report was, at worst, written entirely by the expert or, at least, influenced by the retaining attorney's input. The need for such discovery in this regard to provide the tools and information to test the truth of the claims or defenses presented by the opposing party's expert on cross-examination runs up against the attorney work-product doctrine that arguably protects from disclosure the theories and opinions on the case given by the attorney to his or her expert.

On appeal, an original three-member panel of the Superior Court affirmed the trial court's decision that these types of communications by an attorney to an expert were discoverable. Then, on reargument, an en banc panel of the Pennsylvania Superior Court reversed and held that these communications were not discoverable.

In a one-page order filed by the Pennsylvania Supreme Court on August 31 granting allocatur, the Supreme Court noted that it will review the issue of "whether the Superior Court's interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work-product protection to all communications between a party's counsel and their trial expert."

The Supreme Court's decision will be closely watched by civil litigators, as it could substantially impact how attorneys confer with their experts from this point forward.

It is also noted on this issue that, in early 2011, 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. The amendment would bring the state expert discovery rule more in line with its companion federal rule of civil procedure and provide greater protections against expert discovery. However, that proposal was quiet in 2012 and apparently remains under consideration somewhere in the process.

Other Supreme Court Decisions

The Pennsylvania Supreme Court took action on a number of other issues of note over the past year, as well.

In its decision in Tayar v. Camelback Ski, 47 A.3d 1190 (Pa. 2012), the Pennsylvania Supreme Court held that it was against public policy to release reckless behavior in a pre-injury exculpatory clause. The court more specifically found that a ski resort's release form attempting to release the resort and its employees for liability for reckless conduct was invalid.

In another decision that was actually handed down at the end of 2011, the Supreme Court also addressed the expanding parameters of a negligent infliction of emotional distress (NIED) claim. With the Supreme Court's split decision in its long-anticipated opinion in the case of Toney v. Chester County Hospital, 36 A.3d 83 (Pa. 2011), the Superior Court's decision found at 961 A.2d 192 (Pa.Super. 2008), recognizing a new variation of the tort, was allowed to stand.

According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (impact rule). Thereafter, the requirements to state an NIED claim expanded to allow the victim to be in close proximity of physical impact (zone of impact liability). The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (bystander liability).

Now, with Toney, comes a fourth variation.

Under Toney, the Superior Court recognized a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a "negligent breach of a contractual or fiduciary duty," absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the plaintiff alleged that her medical providers had read an ultrasound during the plaintiff's pregnancy as being normal.

Unfortunately, the plaintiff's child was later born with several profound abnormalities. The plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities. The Supreme Court's split decision on the case allowed the Superior Court's extension of the tort of NIED to stand.
Another Supreme Court decision to watch for in the year ahead is in the case of Passarello v. Grumbine, 29 A.3d 1159 (Pa.Super. 2011), appeal granted, 44 A.3d 654 (Pa. 2012), in which the court accepted an appeal to address whether medical malpractice defendants may continue to rely upon an "error in judgment" defense at trial.

Under an application of the "error in judgment" defense, the trial courts instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

This defense was first found to be invalid in the Superior Court case of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009). In its more recent decision in Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively. Now, the issue is proceeding up to the Pennsylvania Supreme Court in Passarello for further review. The Supreme Court's decision in this regard could have a substantial impact on the defense of medical malpractice cases in the future.

Facebook Discovery

A recurring issue that, to date, has not yet reached the Supreme Court, or even any appellate court for that matter, is whether a civil litigant's private Facebook pages are subject to discovery in a personal injury matter.

This issue has resulted in conflicting decisions in the Pennsylvania courts of common pleas. After providing a detailed summary of the split of authority amongst the Pennsylvania trial courts, Allegheny County Court of Common Pleas Judge R. Stanton Wettick, a renowned expert on discovery issues, handed down his July decision denying Facebook discovery under the particular facts set forth in the case of Trail v. Lesko.

After providing a detailed review of the issue over a 22-page opinion, which included a background on Facebook itself along with a review of Facebook discovery decisions from both within Pennsylvania and outside jurisdictions, Wettick ruled that both the plaintiff's and the defendant's cross-motions to compel access to the other's Facebook pages would be denied in this particular motor vehicle accident litigation.

Wettick denied the requests for Facebook discovery, in part, under a rationale that, pursuant to Pa.R.C.P. 4011, such requests were unreasonably intrusive in that, under the facts of this case, "the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case."

Overall, Wettick's opinion and the other Pennsylvania trial court decisions handed down to date can be read as standing for the proposition that, where there is an initial threshold showing that discovery of the opposing party's private Facebook pages is likely to lead to the discovery of information pertinent to the claims or defenses presented, such discovery will ordinarily be allowed.

Holding Up Settlements on Medicare Liens

Another ongoing trend in civil litigation matters is the continuing concern of addressing Medicare liens asserted against personal injury settlements and verdicts.

In its 2010 decision in the case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010), the Superior Court upheld a plaintiff's argument that a defendant's statutory obligation to reimburse Medicare was separate and distinct from Medicare's statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payer Act "expressly authorizes a primary plan to assert Medicare's right to reimbursement as a pre-emptive means of guarding against its own risk of liability."

In other words, defendants and liability carriers in personal injury matters did not have a right to demand that certain steps be taken by a plaintiff to ensure that a Medicare lien was satisfied out of the money paid to the plaintiff. To the contrary, under the Medicare Secondary Payer Act, only the U.S. government, and not any private entity, may pursue a recovery of the liens.

Since the issuance of the Zaleppa decision, a few trial court decisions have come down over the past year expanding on this issue. Last year, in both the Cambria County case of Vincent v. Buck, No. 2011-CV-456 (C.P. Cambria 2011), and the Monroe County case of Dailey-Console v. Barnwell, PICS Case No. 11-1115 (C.P. Monroe 2011), the trial court judges relied upon the Zaleppa case to support granting a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved.

A similar trial court result with an excellent analysis on the issue can also be found in Wimberly v. Katruska, PICS Case No. 12-1060 (C.P. Allegheny 2012).

In 2012, federal courts have gotten into the mix on the issue. In Carty v. Clark, 2012 U.S. Dist. LEXIS 98314 (E.D.Pa. 2012), U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted a plaintiff's motion to enforce settlement after citing the clear terms of the release, which stated that, once the final demand letter was produced by the plaintiff from Medicare, as was accomplished in this matter, the settlement proceeds were to be released to the plaintiff.

Pennsylvania civil litigators have also been pointing to the District Court of New Jersey's unpublished decision in Sipler v. Trans Am Trucking, 2012 U.S. Dist. LEXIS 109278 (D.N.J. 2012), in which that court also ruled, in no uncertain terms, that a plaintiff's settlement could not be held up by Medicare lien or set-aside issues.

It seems that litigators on both the plaintiffs side and the defense side of the bar have welcomed these decisions clarifying the ability of parties to conclude personal injury matters despite existing Medicare liens.

Looking Ahead

As noted above and in the previous companion article on auto law issues, there are a number of important issues on the dockets at all levels of the Pennsylvania state and federal court systems that should keep things interesting for civil litigators in the year ahead. Developing law on post-Koken questions, UM/UIM issues, proper standards for products liability matters, and Facebook discovery requests should all continue to play a major part in the ever-changing landscape of civil litigation in Pennsylvania. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford Cummins. His civil litigation blog, Tort Talk, may be viewed at

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