Friday, January 3, 2014

ARTICLE: Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014

The below article of mine appeared in the December 24, 2013 Pennsylvania Law Weekly and is republished here with the permission of the publisher, American Law Media, Inc.

Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014

In last week's column, I reviewed the important cases and trends in Pennsylvania civil litigation matters over the past year. As President John F. Kennedy once said, "Change is the law of life." Here's a look into anticipated developments in the law that may change life as we know it as civil litigators in Pennsylvania.

Currently, there are a number of important civil litigation issues pending before the Pennsylvania appellate courts, the results of which could significantly impact the way litigators practice in the years ahead. Moreover, notable changes over the past year in Pennsylvania statutory law, as well as the Rules of Professional Responsibility, are expected to have a significant impact.

Products Liability

In a case of paramount importance to civil litigators, the Pennsylvania Supreme Court heard argument in Tincher v. Omega Flex on Oct. 15. The central issue presented in that case is whether the strict liability analysis of Section 402A of the Second Restatement that most of us learned in law school should be replaced by the Restatement (Third) of Torts analysis, and whether the court's holding in this regard should be applied prospectively or retroactively.

While the Second Restatement calls for a narrow application of negligence principles in the products liability context, the Third Restatement decreases the emphasis upon the concepts of "intended use" and "intended user," while placing a greater emphasis on the doctrine of "reasonable foreseeability."

The changes advocated by the Third Restatement standard would arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product. However, the balance will be shifted in favor the manufacturers of allegedly defective products by creating a higher hurdle for injured parties on the question of liability.

Expert Witness Discovery

Another civil litigation issue that could impact most trial attorneys was argued before the Pennsylvania Supreme Court in the case of Barrick v. Holy Spirit Hospital in April. For full disclosure purposes, note that I drafted the amicus curiae brief on behalf of the Pennsylvania Defense Institute in support of the defense position at the initial Superior Court level only.

In Barrick, the Cumberland County trial court originally ruled that the written communications between a plaintiffs attorney and a medical expert retained for purposes of trial testimony were indeed discoverable. The trial court ruled in this fashion after conducting a confidential in camera review of the communications by plaintiffs counsel with the plaintiff's medical expert and found that such communications could have "materially impacted" the expert's formulation of his opinion.

On the initial appeal, the original three-member panel of the Superior Court affirmed the trial court's decision in favor of the defense argument that the written communications between the plaintiff's attorney and the plaintiff's expert were indeed discoverable.

However, on reargument before an en banc panel of the Pennsylvania Superior Court, the original Superior Court decision was reversed. Based in part upon the application of the attorney work-product doctrine, the en banc panel of the Superior Court instead ruled that these communications between an attorney and an expert in preparation for the creation of an expert opinion for trial testimony were not discoverable. The case was then appealed up to the state's highest court.

The Supreme Court's decision in Barrick will be closely watched by civil litigators, as it could substantially impact how, and to what extent, attorneys may confidentially confer with their experts prior to trial.

Post-Koken Litigation

In terms of other post-Koken issues, here's to hoping that the appellate courts will have many opportunities in 2014 to address numerous other novel questions of importance in the post-Koken era of motor-vehicle accident cases so as to provide much-needed guidance.

Such recurring and troublesome issues include the consolidation versus severance of claims, written discovery issues, whether depositions of UM/UIM claims representatives should be allowed (and, if so, to what extent), bifurcation of trial, admissible trial evidence, and proper jury instructions, just to name a few.

Medical Malpractice

In terms of important legislative changes, the Benevolent Gesture Medical Professional Liability Act was signed into law in October.

Under this new law, in certain limited circumstances, Pennsylvania doctors may now be able to apologize to patients and families in matters of medical malpractice without fear of having such apologies used against them in a court of law.

The act provides that certain benevolent gestures shall be inadmissible at trial as evidence of liability. However, this preclusion of evidence would not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or an event.

The apparent rationale behind the law is that the number of medical malpractice claims may be diminished by such apologies. Whether this change in the law actually results in a decrease in claims in reality remains to be seen.

Construction Litigation

In the area of construction litigation, the Pennsylvania Supreme Court recently granted allocatur in the case of Conway v. Cutler, No. 954 MAL 2012 (Pa. Oct. 15, 2013), to address an issue regarding implied warranty claims and remote/subsequent purchasers of newly constructed residential homes.

According to attorney Joseph Walsh of Walsh Pancio, an attorney who defends a number of construction defect claims, these implied warranty claims are generally at the center of complaints filed by homeowner plaintiffs. Consequently, the Pennsylvania Supreme Court's decision in Conway has great potential ramifications for the building industry and insurers who are still providing defenses in these types of claims under a reservation of rights on any coverage questions.

The Wave of the Future

On the ethical front, as reported by the Law Weekly's Max Mitchell in an Oct. 29 article titled "Justices Add Tech Savviness to Professional Responsibility," the Pennsylvania Supreme Court has recently amended the rules of ethics that govern attorney conduct.

The amended ethical rules now add a requirement that all Pennsylvania attorneys keep abreast of not only changes in the law but also, with the advancement of computer technology, the "benefits and risks associated with relevant technology" in the practice of law. Also emphasized was a greater need to take precautions against inadvertent exposure or disclosure of documents online or otherwise.

As such, it seems that, from this point forward, lawyers need not only be ethical bookworms but, at least in some fashion, computer-literate "techies" as well. 

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

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