Thursday, May 29, 2014

Please Consider Registering for Tort Talk Expo 2014

September 26, 2014
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
(3 Substantive, 1 Ethics CLE Credits)

Click HERE to view the Agenda.

Click this LINK to register online for the Tort Talk Expo 2014 CLE Seminar or contact Dan Cummins at for more information on registration.

Judge Conaboy of Federal Middle District Allows UIM Bad Faith Claim to Proceed to Jury

In his recent decision in the case of Strausser v. Merchant’s Insurance Group, Case No. 3:12-cv-1551 (M.D. Pa. April 7, 2014 Conaboy, J.), United States Federal Court Judge Richard P. Conaboy of the Middle District of Pennsylvania issued an Order denying a carrier’s Motion for Summary Judgment in a UIM bad faith claim after finding issues of fact.

According to the Opinion, the insured complained that the carrier had requested 33 separate authorizations and tax returns in a sporadic fashion over a period of many months.  The Plaintiff also complained that a psychologist who could not assemble the Plaintiff’s treatment records because of computer malfunction was allegedly unreasonably subjected to a lawsuit by the carrier which resulted in a further delay in arbitrating the UIM claim.   Moreover, the Plaintiff asserted that, despite an investigation that spanned over 4 ½ years, the carrier allegedly never obtained any evidence to support its position that the insured had been disabled before the subject accident.  

The carrier countered with an argument that it investigated the UIM claim and discovered red flags in a form of a prior accident history and pre-existing financial and psychological problems.   The carrier also stated that it ultimately agreed to arbitrate the UIM claim and promptly paid the award once it was rendered.  

The insurance company additionally asserted that the 43 month time period between the insured’s filing of the UIM claim and the entry of the award was allegedly largely the result of a refusal by one of the insured’s medical providers to respond to a subpoena.   

The carrier also asserted that there was a delay beyond its control in the form of personal issues for the mediator.  

Finally, the carrier described the parties’ inability to settle the matter over a disagreement over the value of the claims presented.  

In his Opinion, Judge Conaboy observed that the arbitration award that was entered was almost four (4) times the carrier’s best offer.   The Court defined the ultimate question presented in this matter as whether, at some point before the entry of the arbitrator’s award, did the carrier have enough information to comprehend that its final settlement offer was unreasonably low.  

In its Opinion, the court acknowledged that the mere negotiation of a disputed claim does not qualify as bad faith, that the existence of a substantial discrepancy between the carrier’s settlement offer and the amount that the carrier ultimately pays on a claim does not, in every circumstance, support a finding of bad faith, that it is not always bad faith for a carrier to rely upon the results of an independent medical examination, and that the mere fact that there was a substantial delay between the time the claim was filed and the time it ultimately resolved, in and of itself, does not necessarily indicate bad faith.   

The court found that reasonable jurors could differ on the issue of whether or not the carrier was unreasonable to refuse to submit the case to mediation before obtaining a psychologist’s records in the context of a case primarily involving physical injuries.

Judge Conaboy also felt that reasonable jurors could conclude that the carrier acted unreasonably in relying upon the Opinions of an IME doctor who never saw the insured Plaintiff until approximately five (5) years after the accident in question.   The court also felt that the carrier’s piecemeal request for 33 authorizations over a period of more than a year could be viewed as an effort to pressure the insured Plaintiff to accepting a settlement that bore no resemblance to the actual damages claimed.  

In concluding his opinion, Judge Conaboy stated that his denial of summary judgment should not be viewed as an indication that the court thought it was likely that the Plaintiff would prevail at trial. The court reiterated that the Plaintiff was required to demonstrate the insurance company’s alleged bad faith by the heightened standard of clear and convincing evidence and that the insurance company would have the benefit of that jury instruction at trial. 

I send thanks to the law firm of Fineman, Krekstein & Harris for publicizing this Opinion on its excellent blog known as the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog (

Anyone wishing to review this Strausser  case can click this LINK.

Thursday, May 22, 2014

Novel Remedy Crafted in E-Discovery Decision by Judge Terrence R. Nealon of Lackawanna County

In his recent decision in the case of Sandvik, Inc. v. Mecca C & S, Inc., No. 2013-CV-4003 (Lacka. Co. May 21, 2014 Nealon, J.), Judge Terrence R. Nealon addressed a novel e-discovery dispute in the context of a case involving trade disputes between two software manufacturers.

In Sandvik, the Plaintiff-company sued one of its employees for allegedly utilizing the company's trade secrets in the creation of allegedly similar software.  The defendant denied utilizing any trade secrets of his former employer and asserted that he developed superior software by utilizing publicly recognized engineering concepts an his own ingenuity.

The case came before Judge Nealon on an appeal from a decision by Discovery Master Henry Burke who had ordered the Defendant-former employee to provide the Plaintiff-company with access to his software and trade secrets.  The Defendant-former employee appealed that decision, in part, because allowing his former employer access to his trade secrets might enable the Plaintiff-company to possibly replicate what the Defendant allegedly invented.

After thoroughly reviewing the Rules and law pertaining to e-discovery and discovery of trade secret information (and with no Pennsylvania case directly on point), Judge Nealon noted that, in such cases, the person claiming privilege from disclosing trade secrets must first show that the material sought constitutes proprietary information.  If the party resisting discovery makes this threshold showing, the burden would then shift to the party seeking the discovery to show a compelling need for the disclosure that outweighs any harm that may be caused by the disclosure.

In crafting a novel remedy, Judge Nealon ordered that a software expert by appointed by the court to review the parties' respective software to make an initial determination on whether the Defendant-former employee's software impermissibly integrates his former employer's trade secrets as alleged.

If there still remained a discovery dispute thereafter, Judge Nealon would review the expert's report in camera inspection for a final decision on the discoverability of the information at issue.

Anyone wishing to review a copy of this decision may click this LINK.

Summary Judgment Granted in UIM Bad Faith Case Out of Western District

In its recent decision in the case of Rowe v. Nationwide Insurance Company, Civil Action No. 3:12-81 (W.D. Pa. March 20, 2014 Gibson, J.), Judge Kim R. Gibson of the Federal District Court for the Western District of Pennsylvania ruled on a Motion for Summary Judgment filed upon bad faith claims in a UIM contract. 

On the insured Plaintiff’s personal injury UIM claims, the carrier initially secured a copy of the police report, inquired as to the status of medical treatment, and spoke with the other driver’s carrier regarding the claim.   According to the Opinion, the UIM adjuster followed up with the insured’s counsel for almost a year and a half, but was unable to fully evaluate the claim due to a lack of the complete medical file.   At one point, the insured’s counsel advised the UIM carrier that even she was unable to estimate a value for the UIM claim until she received additional medical information.  

Thereafter, when a chiropractor’s report was produced, the carrier for the tortfeasor paid the $15,000.00 in bodily injury liability limits.  The insured then turned to Nationwide as the UIM carrier and demanded an additional $313,500.00.  

Nationwide conducted its own internal evaluation of the claims presented and concluded that the Plaintiff’s claims did not reach a value in excess of the $15,000.00 bodily injury credit due to the UIM carrier.   The UIM carrier indicated that it would continue to evaluate the claims with any new additional information provided.

Thereafter, the UIM carrier completed a Statement Under Oath, a records review, and an IME.  

When the carrier offered $5,000.00 to settle the UIM claim, the counter demand was $275,000.00.   The injured insured thereafter brought suit and the UIM claim eventually settled at $50,000.00, the amount of the UIM limits. 

However, the statutory and contractual bad faith claims remained open.   At issue before this court were cross Motions for Summary Judgment.  

According to the Opinion, the basis for the Plaintiff's bad faith claims was the alleged violation of the Unfair Insurance Practices Act (“UIPA”) for refusing to pay claims, not attempting to effectuate a prompt and fair settlement in good faith in a clear liability case, compelling the Plaintiffs to file a lawsuit to recover amount due under the policy, and for allegedly attempting to settle Plaintiffs’ claims for less than what a reasonable person would believe he was entitled to recover.  

On the contractual bad faith claim, the court in Rowe found that the Plaintiff did not show that the UIM carrier’s conduct was unreasonable or negligent by clear and convincing evidence.   The court noted a general rule that, while there may be generally no breach of contract claim where the UIM carrier pays the policy proceeds, an insured may be able to pursue a claim for bad faith related to the carrier’s handling of the claim.   As stated, the court found that the injured insured did not produce any clear and convincing evidence that the carrier’s conduct was unreasonable or negligent.  

In so ruling, the Rowe court stated that the fact that the insured disagreed with the carrier’s claim evaluation was not a proper basis for a contractual bad faith claim where the insureds did not show that the carrier did not breach some contractual duty.   The court in this matter found that the UIM carrier demonstrated a reasonable basis for its conduct and, as such, summary judgment on the contractual bad faith claim was granted in favor in the UIM carrier.  

On the statutory bad faith claim, the court noted that bad faith could include such conduct as an unreasonable delay in the handling of a UIM claim, a frivolous or unfounded refusal to pay, a failure to communicate with the insured, acting in  a dilatory manner, extend settlement offers that bear no reasonable relationship to the insured’s medical treatment and expenses, or conducting an inadequate investigation into the claims presented.  

The court reiterated that clear and convincing evidence was required to support such claims.  

The Rowe court also stated that, at the summary judgment stage on a statutory bad faith claim, the insured’s burden is to meet this high level of evidence required.  However, if the court found that a reasonable jury could find that the carrier did not have a reasonable basis for denying benefits under the policy and move, or recklessly disregarded this fact, summary judgment would not be appropriate.

Reviewing the evidence against this standard lead the court to also enter summary judgment in favor of the carrier in a statutory bad faith claim.   Of note, is the court’s finding that the Plaintiff’s claims that the carrier failed to provide 30 days/45 day updates as required by the Pennsylvania Code, even if accepted as true, was not the type of negligence that amounted to bad faith in the context of this case where the record was otherwise replete with evidence of regular written and oral communications from the carrier to the insureds and their lawyers regarding the status and progress of the investigation.  

Anyone wishing to review a copy of this Opinion may click HERE.

I send thanks to the excellent writers of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog at the Philadelphia law firm of Fineman, Krekstein & Harris (including Attorney Lee Applebaum, Esquire) for publicizing this case.  


Monday, May 19, 2014

Proper Procedures for Subpoenas Addressed to the Pennsylvania State Police

I was recently advised of a link to a Pennsylvania State Police web page outlining the procedures required to be followed in order to issue subpoenas to the Pennsylvania State Police to secure a State Trooper's deposition or to secure State Police records.

Here is the LINK.

I send thanks to Lieutenant Sean P. Jennings, Staff Service Section Commander of the Pennsylvania State Police for getting this information out.

Now if we could only get statewide procedures and set appearance fees in place so that we could stop getting fleeced by local police officers when we try to secure their appearance for depositions (Very few things aggravate me more in the practice of law).

Friday, May 16, 2014

Federal Middle District Court Addresses Parameters of Discovery of Claims File in UIM Bad Faith Case

In her recent March 10, 2014 Opinion in the case of Shaffer v. State Farm Mutual Automobile Insurance Company, Civil Action No. 1:13-cv-01837 (M.D. Pa. 2014 Rambo, J.), Judge Sylvia Rambo of the Federal District Court for Middle District of Pennsylvania issued a discovery Opinion in the UIM insurance bad faith context.  

In this matter, the judge originally ordered the insurance company to submit unredacted versions of all of the redacted and partially redacted pages of the log notes for an in camera review by the court.     

The court evaluated the redactions under the attorney work product privilege and Federal Rule 26(b)(3).  

More specifically, with regards to the carrier’s redaction of all reserves information, the court found that, because the Plaintiff had alleged that the carrier acted in bad faith during its investigation of the UIM claim, the amount set aside for reserves by the carrier could be relevant to the determination of whether or not the carrier acted in bad faith in processing the claim.  Accordingly, the court allowed the disclosure of such information in this limited context.  

With regards to the discovery of the insurance claims representative’s impressions, conclusions, or opinions, the court initially noted that such information is generally not protected under the Work Product Doctrine unless such information is prepared in anticipation of litigation.

Accordingly, the test of whether the Work Product Protection applies requires an assessment of when litigation was anticipated.   The court generally noted that this assessment is not subject to a bright line rule.   The court did recognize that the Third Circuit of Court Appeals has indicated that "[p]rudent parties anticipate litigation and begin preparation prior to the time suit is formally commenced.”  

While this assessment of when litigation was anticipated is ordinarily a fact-dependent inquiry, the court here reviewed the claims file with the standard of review in mind and found that certain portions of the requested documents were indeed prepared in anticipation of litigation and should therefore be protected from any discovery.  

Anyone desiring a copy of this Opinion may click this LINK.  The Order accompanying the Opinion can be viewed HERE.

I send thanks to the writers of the PENNSYLVANIA AND NEW JERSEY INSURANCE BAD FAITH CASE LAW BLOG at the Philadelphia law firm of Fineman Krekstein & Harris for publicizing this decision.  


Thursday, May 15, 2014

Third Circuit Issues Important Decision on Federal Court Jurisdiction Over Insurance Coverage Questions

In what the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog is describing as one of the Third Circuit’s most important decisions on the exercise of federal jurisdiction in insurance declaratory actions in recent times, the court in the case of Reifer v. Westport Insurance Corporation, No. 13-2880 2014 W.L. 1674112 (3d Cir. April 29, 2014 Van Antwerpen, J.), revisited the issue of whether or not a federal court could reject an insurance company's effort to bring a declaratory judgment action against an insured on an issue of coverage in the federal courts of Pennsylvania.  

While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court.  

After reviewing the law on the issue of abstention in this regard, the Third Circuit stated that there is no bright line rule permitting the District Courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  

This Reifer decision is to be distinguished from the Third Circuit's prior decision in the case of State Auto Insurance v. Summy, 234 F.3d 131 (3d Cir. 2000), in which the Court greatly limited the circumstances under which a federal district court would exercise jurisdiction over a declaratory judgment action concerning insurance coverage.   A factual distinction between these two cases is that, in Reifer, there was no pending parallel state action, as was the case in the matter of State Auto vs. Summy. 

The court in Reifer found that the absence of a parallel state proceeding would weigh significantly in favor of the federal court exercising jurisdiction over an insurance coverage question.   The Reifer court rejected any reading of the Summy case that would support an argument for an automatic declining of jurisdiction in every case where state law was firming established.   In this more recent Reifer Opinion, the Third Circuit clarified the factors a district court should consider in ultimately determining whether or not to exercise jurisdiction.  

Anyone wishing to review the Reifer Opinion by the Third Circuit Court of Appeals may click this LINK.

I send thanks to the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog by the law firm of Fineman Krekstein & Harris for bringing this case to my attention along with Attorney Brian C. Bevan, Esquire of the Pittsburgh law firm of the DiBella, Geer, McAllister & Best, P.C.  

Judge Conaboy of Federal Middle District of PA Limits Discovery in Auto Insurance Breach of Contract Case

In McBride v. Infinity Prop. & Cas. Corp., Case No. 3:13-CV-1737 (M.D. Pa. March 24, 2014 Conaboy, J.), Judge Richard P. Conaboy of the U.S. District Court for the Middle District of Pennsylvania addressed an insurer’s subpoenas to third parties in a breach of contract/bad faith claim arising out of the carrier's refusal to pay first party medical benefits to the plaintiff for personal injuries allegedly sustained from an auto accident.

The carrier had refused to pay first party medical benefits on the basis that the insured allegedly misrepresented his state of domicile at the time he made his application for insurance by that stating that his residence was in Bushkill, Pennsylvania rather than New York.  The carrier stated that this was a material misrepresentation on the application that, therefore, no coverage was due.

It was the insured's contention that he moved to Pennsylvania in 2012.

The discovery issue presented in this case centered around the scope of discovery on the pertinent issue of residency.  Overall, the court limited the carrier's discovery efforts to the years 2012 and forward for such items as the insured's tax returns, voter identification records, credit card statements, bank statements, records pertaining to the insured's receipt of governmental benefits, documents related to the insured's driving of a motor vehicle, and real property records.

The court rejected the carrier's efforts to secure copies of the insured's third party personal injury litigation file as the claim before this court only involved issues surrounding the denial of first party medical benefits.  Judge Conaboy felt that the carrier could gather the same information that may be relevant to the payment of medical expenses and the residency issue by a review of the medical records and by deposition of the insured.

Anyone wishing to read this Opinion by Judge Conaboy in the McBride case may click this LINK.

I send thanks to the writers of the excellent PENNSYLVANIA AND NEW JERSEY INSURANCE BAD FAITH CASE LAW BLOG at the Philadelphia law firm of Fineman Krekstein & Harris for publicizing this decision.  

Monday, May 12, 2014

Rejection of UM/UIM Mandates Apply to Commercial Fleet Vehicles

In its recent April 2, 2014 notable but "non-precedential" decision in the case of Egan v. USI Mid-Atlantic, Inc., --- A.3d --- (Pa. Super. Ct. April 2, 2014), the Pennsylvania Superior Court held that the UM/UIM rejection form requirements under the MVFRL applied to commercial fleet vehicles.  The court also held in this case that an insurance agent could be held liable for punitive damages under certain circumstances.

This Superior Court opinion addresses the applicability of the rejection of uninsured and underinsured waiver on a corporate fleet policy.  The court in Egan thoroughly reviewed the entire MVFRL and the mandates of 75 Pa.C.S.A. Sections 1731 and 1738. 

The Superior Court ultimately ruled, as a matter of law, that Section 1731 mandates that UM/UIM coverage must be offered on a commercial fleet vehicle, and any rejection form must likewise comply with Section 1731.

The court additionally ruled that an insurance broker can be held liable for punitive damages for his or her actions in the handling of the uninsured and underinsured motorist claim.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Anyone wishing to review this case, may click HERE.

Friday, May 9, 2014

Tort Talk Expo 2014 (Set for September 26th) Approved for 3 Substantive, 1 Ethics Credit

I have been notified by the Pennsylvania CLE Board that the Tort Talk Expo 2014 CLE Seminar program has been approved for 3 Substantive CLE credits and 1 Ethics credit

The cost to attend the seminar at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania is $195.00 for Attorneys and $25.00 for claims professionals.  Click HERE to view the Agenda.

or mail check made out to "Tort Talk" to:
Daniel E. Cummins
Foley, Comerford & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503


In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
SEPTEMBER 26, 2014

Thursday, May 8, 2014

Federal Court Remands Post-Koken Case Back to State Court Where PA Resident Claims Reps Also Named as Defendants

In a recent Memorandum Opinion by United States Magistrate Judge Robert C. Mitchell of the United States District Court for the Western District of Pennsylvania in the case of Kapton v. Ohio Cas. Ins. Co., Civil Action No. 2:14-69 (W.D. Pa. April 17, 2014 Mitchell, M.J.), the court granted a Plaintiff’s Motion for Remand in a post-Koken case and sent this litigation back to the state court in this lawsuit for underinsured motorist benefits.

In this matter, the Plaintiff not only sued the carrier but two of the carrier’s claims professionals.   This was a breach of contract and bad faith action relative to a UIM claim. 

After suit was filed, the Defendants removed the action from the Beaver County Court of Common Pleas of the Western District of Pennsylvania.  The Plaintiff responded with a Motion to Remand.  

The court granted the Motion to Remand after noting that the Plaintiff and the two claims representative Defendants were all citizens of Pennsylvania. 

The federal court ruled that it would only have jurisdiction over this case if the individual Defendants were fraudulently joined in the matter by the Plaintiff's to avoid a potential removal of the case to federal court.  

After finding no fraudulent joinder, the Federal District Magistrate Judge granted the Plaintiff’s Motion to Remand.   The court accepted the Plaintiff’s argument that the claims representative Defendants allegedly acted with misfeasance by improperly handling the underinsured motorist claims and thereby creating a claim under the Unfair Trade Practices and Consumer Protection Law.   The court rejected the Defendant’s argument that their conduct in allegedly mishandling the Plaintiff’s claim only possibly rose to the level of nonfeasance and not misfeasance (with the argument being that nonfeasance was not actionable under the UTPCPL).  

Accordingly, the Federal District Court found that the Defendants had not demonstrated that the Plaintiff had fraudulently joined the individual Defendants in an effort to destroy diversity of citizenship among the parties.   As such, the Motion for Remand was granted and the case was sent back to state court.

Anyone wishing to see a copy of this Opinion may click this LINK.

I send thanks to Attorney Timothy D. McNair of the McNair Law Offices in Erie, Pennsylvania for bringing this case to my attention.  

Wednesday, May 7, 2014

Erie Forum Selection Clause Allows for Federal Court Venue Too

In its recent decision in the case of Otto v. Erie Insurance Exchange, NO. 13-6722 (E.D. Pa. March 31, 2014 Brody, J.), Judge Anita B. Brody of the U.S. Federal Court for the Eastern District of Pennsylvania addressed the application of Erie Insurance's forum selection clause in a Post-Koken matter.

Based upon diversity that existed at the time of filing the suit, the Plaintiff filed suit in the Eastern District of Pennsylvania.  

The Erie policy mandated that a suit "must be filed in a court of competent jurisdiction in the county and state of [the Ottos’] legal domicile at the time of the accident." 

Erie asserted that this language required the case be filed in state court only. The Plaintiff countered with the argument that the forum selection clause should be broadly construed to possibly include both the federal and state courts.

Applying the Third Circuit case of Jumara v. State Farm Insurance Company, 55 F.3d 873 (3d. Cir. 1995), the court in Otto ruled that that the language in the Erie Insurance forum selection clause would be construed to include the federal court located in the county the insured resides at the time of the accident. 

Since the Eastern District federal court included Montgomery County where the Ottos’ resided at the time of the accident, then the Eastern District federal court was found to be a proper venue under the clause.

Accordingly, the court denied Erie Insurance’s motion to dismiss based upon forum non conveniens because the Plaintiff's decision to file suit in federal court complied with the terms of the forum selection clause.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Anyone wishing to review this case may click this LINK.
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Tuesday, May 6, 2014

An Original Article For Tort Talk: A SAD DAY FOR THE TRUTH


Barrick Supreme Court decision will embolden tinkering with experts with impunity

Daniel E. Cummins

The Pennsylvania Supreme Court’s much-anticipated decision in the case of Barrick v. Holy Spirit Hospital is disappointing in more ways than one. 

By a split decision no less, six Justices of the Pennsylvania Supreme Court in Barrick equally differed on the all-important the issue of whether or not communications between an attorney and his expert witness are discoverable.  With this split decision, the hell or high water results-oriented decision by the en banc Pennsylvania Superior Court stands.  The en banc Superior Court ruled that information given by an attorney to that attorney’s expert and pertaining to the creation of that expert’s opinion is not discoverable.

By way of background, the Dauphin County trial court ruled that such information was indeed discoverable where an in camera review of the communications by Plaintiff's counsel to a medical expert revealed that the communications could have “materially impacted” that expert's opinion.

On appeal, an original three-member panel of the Superior Court initially affirmed the trial court's decision that the communications were discoverable in order that any “parroting” by the expert of a requested opinion from an attorney could be made the subject of cross-examination at trial.  For full disclosure purposes, I represented the Pennsylvania Defense Institute in its amicus curiae submissions at the Superior Court stage of the litigation only.  Thereafter, on re-argument before an en banc panel of the Pennsylvania Superior Court, the previous decisions were reversed and that court held that the communications from the attorney to the expert were not discoverable.  By default, the Supreme Court’s split on the issue allows the Superior Court en banc decision to stand.


No Place for Split Decisions

It is initially noted that the Pennsylvania Supreme Court’s decision in Barrick is frustratingly disappointing by the fact that there is no reason why split decisions should be allowed to exist at the highest level of this Commonwealth’s court system. 

All too often in recent times, there have been equally split decisions at the Supreme Court level on a variety of issues.  If an issue is important enough to be accepted for review by the Pennsylvania Supreme Court, there should be a mechanism in place to ensure that there are seven Justices to rule upon, and finally settle, the pressing question presented.

Pennsylvania Law Weekly writer Howard Bashman, Esquire proposed that where a Justice is unable to sit in on a matter for one reason (or another), another appellate court judge from the Superior Court or Commonwealth Court should be allowed to sit in on a random, rotating basis (to avoid politics), with a Commonwealth appellate court judge sitting in on Superior Court appeals and vice versa in order to avoid conflicts.  Seems a simple enough solution.

Perhaps the disappointing split decision by the Pennsylvania Supreme Court in Barrick will serve as an impetus for that Court to explore and create a proper mechanism to prevent split decisions, i.e. moot decisions from Pennsylvania’s highest court, in the future.

A Roadblock to the Quest for the Truth At Trial

More importantly, the split decision by the Pennsylvania Supreme Court in Barrick amounted to a disappointing day for the Truth.

The specific issue before Court in Barrick involved the question of whether the attorney work product doctrine protects from disclosure letters and e-mails from a party’s attorney to that party’s medical expert where the correspondence specifically and purposefully addresses the role of the expert witness and the strategy on how the expert opinion should be framed.  The question, which essentially answers itself, was an issue of first impression in the Pennsylvania appellate courts. 

Taking a step back from the very specific discovery issue presented and looking at the big picture, it is well established under Pennsylvania jurisprudence that “the purpose of…civil trials is to discover the truth….”  Bailey v. Tucker, 621 A.2d 108, 113 (1993)[emphasis in original]. 

As a sometimes crucial part of the truth-finding process of trial, parties are permitted to present expert witnesses to provide opinion testimony on matters that may be beyond the common knowledge of lay persons on the jury panel.  See Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004);  see also Pa.R.E. 702-706.

Pre-trial discovery of information given to witnesses is therefore important as it is well-settled that, in the search for the truth at trial, it is for the jury to determine the credibility of the witnesses, including expert witnesses, along with the weight to be given to the testimony of the witnesses.   See Ludmer v. Nernberg, 640 A.2d 939, 942 (1994).  

Stated otherwise, in a case where the credibility of the witnesses is at issue, for example as where there is a “battle of the experts,” the weight to be assigned to its testimony of various witnesses is within the exclusive province of the jury.  See Smith v. Shaffer, 515 A.2d 527, 528-529 (1986). 

In this regard, a jury is permitted to believe all, a part of, or none of the testimony of any witness.   Neison v. Hines, 653 A.2d 634, 636-637 (1995).  Ultimately, a jury is under no obligation to accept as true the testimony presented by either side of the case, but must compare the conflicting evidence to determine the truth.   Metz v. Travelers Fire Ins. Co., 49 A.2d 711, 713 (1946).  In fact, a jury may even disbelieve the testimony of expert witnesses, even when that testimony is uncontradicted.   Douglass v. Licciardi Construction Co., 562 A.2d 913, 916 (1989); Janson v. Hughes, 402, 455 A.2d 670, 671 (1982).  Thus, pre-trial discovery of information fed or provided to a witness, and particularly an expert witness, may prove important in the process of exploring the credibility of that witness through the truth-seeking tool of cross-examination. 

The most important tool provided to a litigant to test the credibility of the opinion of an adversary’s expert witness and thereby challenge the truth of the adversary’s claims at trial, is the right to cross-examine witnesses.   The primary purpose of cross-examination is to elicit testimony tending to refute all inferences and deductions raised by direct examination.  Collins v. Cooper, 746 A.2d 615, 617-618 (Pa. Super. 2000).  The right of cross-examination includes the right to examine the witness on any facts tending to refute those inferences or deductions.  Id.   Another crucial purpose of cross-examination is to provide an opportunity to elicit answers that will impeach the impartiality of the witness.   Catina v. Marie, 415 A.2d 413, 420 (1980), rev’d on other grounds, 447 A.2d 228 (1982).

The Rules of Discovery Support the Search for the Truth

The Courts of Pennsylvania have recognized that the cross-examining attorney is unlikely to have the requisite expertise on the topic testified to by the expert, or any knowledge as to how the expert formulated his or her opinion, without some procedural assistance from the Rules of court. 

It is for this reason that the Pennsylvania Rules of Civil Procedure require the pre-trial identification by experts along with the substance and the grounds for the expert’s opinion.  This affords the opposing counsel an opportunity to prepare an appropriate cross-examination during the search for the truth at trial.  See Freeman v. Maple Point, Inc., 574 A.2d 684, 689 (1990).  

It is reiterated, so as not to be forgotten, that the overriding purpose of civil trials is to determine the truth of the claims and defenses presented.  The courts of Pennsylvania have repeatedly held that it therefore follows that “the purpose and spirit of discovery proceedings is to avoid surprises at trial and to permit trials to be a truth-seeking devi[c]e.”  Feld v. Merriam, 1980 WL 194225, 4 Phila.Co.Rptr. 511 (Phila. Co. 1980), aff’d as modified, 461 A.2d 225 (1983), rev’d on other grounds, 485 A.2d 742 (1984).

Under the liberal Pennsylvania Rules of Civil Procedure pertaining to discovery, i.e., Pa. R.C.P.  4003.1(a), a party is generally permitted to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action” even if that discovery was prepared in preparation for litigation or trial.  42 Pa.R.C.P. 4003.1(a);  Pa.R.C.P. 4003.3.   With regards to expert discovery, the discovery rules avoid surprises and allow for a fair trial on the merits by providing that a party may require an adversary to identify the trial expert, state the subject matter on which the expert is expected to testify, state the facts and opinions to which the expert is expected to testify, and state a summary of the grounds for each opinion.   Pa.R.C.P. 4003.5(a)(1)(b). 

Rule 4003.5 specifically allows for the discovery of “facts known” and opinions held by the testifying exert witness including the grounds for each opinion, even if those facts were acquired in anticipation of litigation.  See Pavlak v. Dyer, 59 D.&C.4th 353, 355 (C.P. Pike Co. 2003 Thomson, J.).  In providing for such discovery pertaining to the expert and the formulation of his or her opinion, Rule 4003.5 has been construed as intending to allow for the effective cross-examination and rebuttal of an expert witness by opposing parties.  9 Goodrich-Amram §4003.5:2  (2008;  2009-2010 Suppl.).

The en banc Superior Court in Barrick generally held that the communications from the attorney to the expert were generally protected under the attorney work product doctrine as those communications contained mental impressions, conclusions, legal analysis, etc., of the attorney, all of which were deemed to be protected from disclosure under Pa.R.C.P. 4003.3.

The end result in Barrick’s preclusion of this type of discovery is the creation of the obvious danger that some attorneys, knowing that such activity can never be discovered, may not be able to resist the temptation to suggest, or even worse, tell their experts how to craft their opinion in favor of that attorney’s client and thereby surreptitiously impact the truth-seeking purpose of civil trials. 
In the end, depending on which side you are on, the Pennsylvania Supreme Court’s moot split decision in Barrick v. Holy Spirit Hospital turned out to be either a boon to the unscrupulous game players of civil litigation matters or a great loss for those pursuing the noble search for the truth at trial.
The only hope is that, in addition to being an impetus for a movement towards action to avoid future split decisions by the Pennsylvania Supreme Court, perhaps Barrick will also serve as a catalyst for additional discussion on the proposed Rule changes pertaining to the permissible scope of expert discovery in Pennsylvania state courts.

What do you think?

Friday, May 2, 2014

Please Consider Registering For Tort Talk Expo 2014 Now to Reserve Your Spot

September 26, 2014
Mohegan Sun Casino and Hotel
Wilkes-Barre, PA
(Application submitted for 3 Substantive, 1 Ethics Credit)
12:00 pm - 1:00 pm 
"Back to School"
Daniel E.  Cummins, Esq.
1:00 pm - 2:00 pm 
Timothy G. Lenahan, Esq.
Scott B. Cooper, Esq.
Neil T. O'Donnell, Esq.

Moderator: Daniel E. Cummins, Esq.
 {BREAK: 2:00 pm - 2:15 pm}
  2:15 pm - 3:15 pm
Dr. Lucian Bednarz  - Physiatrist - on RSD
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
 {BREAK:  3:15 pm - 3:30 pm}
 3:30 pm - 4:30 pm
Ethical Considerations
Settlement Conferences
Jury Selection
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
Supreme Court Justice Correale F. Stevens 
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Court Judge Malachy E. Mannion
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 4:30 pm - 6 pm

At The Scene

Courtside Documents

Exhibit A

Medical Legal Reproductions
Network Deposition Services

Northeastern Rehabilitation Associates



The MCS Group

As in the past, there will again be door prizes and raffle prizes.
Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at for more details).
NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 
or mail check made out to "Tort Talk" to:
Daniel E. Cummins
Foley, Comerford & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
SEPTEMBER 26, 2014


Thursday, May 1, 2014

Judge Rambo of Federal Middle District of PA Addresses Scope of Bad Faith Discovery in Post-Koken Matter

In her recent decision in the Post-Koken case of  Keefer v. Erie Insurance Exchange, Civil No. 1:13-CV-1938 (M.D. Pa. March 7, 2014 Rambo, J.), Judge Sylvia H. Rambo of the Middle District of Pennsylvania Federal Court addressed the scope of allowable discovery in the context of a bad faith UIM claim.

With respect to reserves information in a UIM carrier’s claims file, the court in Keefer found that the amount of reserves, if any, assigned to the insured’s UIM claim by the UIM carrier should be produced in a bad faith case where the insured was asserting that that the insurer acted in bad faith during its claim investigation.  Judge Rambo ruled in Keefer that a comparison between the reserve value of the claim and the insurer’s actual actions in processing the claim could shed light on the insurer’s liability under the bad faith statute. Thus, the reserve amount was deemed relevant or, in the alternative, evidence that could potentially lead to the discovery of other relevant information.  In so ruling, the court also rejected the argument that the reserve information is protected from discovery by the work product doctrine.

On another issue of note, the insurer argued against the plaintiff’s request that claims handling manuals be produced in this case where both the UIM claim and the bad faith claims were still pending.  

The court in Keefer permitted the insured to inquire into the processes that the insurer used to investigate her claims.  The court found that the allowance of discovery of the carrier’s policies for handling claims was reasonably calculated to lead to information relevant to the bad faith cause of action. 

In Keefer, the UIM carrier also opposed the plaintiff’s request for information regarding its adjusters’ impressions, conclusions, and opinions regarding the value and merit of the claim and their evaluations of the insured’s demands and the insurer’s offers.

The court noted that mental impressions and opinions of a party and its agents are not generally protected by the work product doctrine unless they are prepared in anticipation of litigation. Thus, “work product prepared in the ordinary course of business is not immune from discovery.” The gravamen of a claim of work product protection necessarily requires an assessment of when litigation was anticipated, which, the court noted, is a determination that is not subject to a bright-line rule.

Judge Rambo found that, in this matter, the facts were not sufficiently developed yet to determine whether litigation was reasonably anticipated and, as such, the court deferred ruling on this discovery request for the moment.

In Keefer, the carrier also objected to the plaintiff’s request for discovery regarding the adjuster’s or supervisor’s rationale behind the decision not to pay the Plaintiff’s UIM claim.  In light of the liberal scope of federal discovery allowed, and the fact that the reason for non-payment may be probative on the issue of whether insurer acted in bad faith in the handling of the UIM claim, the objection was overruled.

The court in this matter also noted that the UIM carrier could rely upon the work product doctrine to reject the plaintiff’s request for the unredacted production of the carrier’s entire claims file.

 In another notable decision, Judge Rambo upheld the carrier’s objection to the plaintiff’s demand for information pertaining to unrelated bad faith claims against the insurer over the previous five years. The court found that past claims in that regard were irrelevant to the case at hand.

Anyone wishing to review a copy of the Keefer decision may click this LINK.

I cite to the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog by the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this decision to my attention.  If you are a Bad Faith litigator, regardless of whether you are on the Plaintiff's side or the Defense side, that is an excellent blog to subscribe to for continuing updates.

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