THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME:
A Review of Important Civil Litigation Cases and Trends in 2014
By
Daniel E. Cummins
As another year of Pennsylvania jurisprudence comes to an end, a look back reveals a number of the same issues and trends that have dominated the headlines in recent years. As some say, the more things change, the more they remain the same.
Among the more notable cases from the past year is the Pennsylvania Superior Court’s decision in the medical malpractice case of Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), in which that court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that party’s peremptory challenges.
According to the Opinion, the jury that resulted in the Cordes case included a husband of a patient of the defendant doctor, the daughter of a patient of the defendant doctor, and an employee of the parent medical corporation whose subsidiary employed the defendant doctor.
The Opinions issued by the Cordes court all essentially agree with the notion that an important goal of jury selection is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of partiality to a disinterested observer.
In the end, it was held that the trial court erred in refusing, after the exhaustion of a party’s peremptory challenges, to strike for cause those jurors who had a close relationship to a Defendant doctor and/or were employed by the same company as that doctor despite those jurors’ assurances of impartiality. As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial. As noted above, the Pennsylvania Supreme Court curiously denied allocatur.
Jury Instructions in Post-Koken Matters
Continuing on the topic of jury issues, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued the first detailed opinion in Pennsylvania outlining the type of jury instructions he would provide to a jury in a Post-Koken automobile accident matter involving an insurance company defendant.
In the case of Moritz v. Horace Mann Ins. Co., No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Nealon reviewed cases from within and without Pennsylvania to formulate even-handed jury instructions informing the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims presented as opposed to the type of parties involved.
Expert Discovery
In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014). This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.
On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective. These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts, need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."
In a case of first impression, the Pennsylvania Superior Court ruled in Roth v. Ross and Erie Insurance Group, 85 A.2d 590 (Pa. Super. Feb. 7, 2014), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages after a verdict.
The Superior Court ruled that the wording of Rule 238 was clear and unambiguous in requiring the addition of delay damages to the verdict in all civil cases where a plaintiff seeks monetary relief for bodily injury. Future medical expenses were, "by definition," part of the monetary relief for bodily injuries caused by the subject accident and, as such, should be included in the delay damages calculation.
The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has described the case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), as being the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.
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.
Rather, the Third Circuit Court 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. In this Reifer Opinion, the Third Circuit went on to clarify the factors that a district court should consider in determining whether or not to exercise jurisdiction. As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage can be anticipated.
Another Short-Handed High Court
Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again, which is an obscene situation in more ways than one.
Hopefully, the unfortunate recurrence of this situation of a short-handed court may serve as an impetus for the Court to adopt a plan whereby, whenever the Court has less than seven Justices, a randomly selected Commonwealth Court Judge could be selected to sit on an appeal of a Superior Court decision before the Supreme Court, and vice versa.
Perhaps the time has also come to revisit the notion of a merit selection of Pennsylvania state court judges similar to the method utilized to select federal court judges.
In the meantime, Chief Justice Castille and the Supreme Court are going out with a bang with the Chief Justice’s important opinions issued in November in the case of Tincher v. Omega Flex, Inc., in which the court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis, and in the case of Zauflik v. Pennsbury School District, in which the Court upheld the constitutionality of the statutory caps protecting local governmental agencies in personal injury tort claims.
Cell Phone Use
The year 2014 brought forth a number of decisions on the viability of a punitive damages claim based upon a distracted defendant driver’s use of a cell phone at the time of an accident. The decisions show that this issue will be decided on a case-by-case basis.
In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident. The court reviewed essentially ruled that allegations of the mere use of a cell phone while driving, without more, does not amount to factual support sufficient to sustain claims of recklessness or for punitive damages.
In contrast, in a recent Luzerne County decision in the case of Gugliotti v. O'Rourke, No. 2012-CV-15133 (C.P. Luzerne Co. 2014 Burke, P.J.), President Judge Thomas F. Burke, Jr., by Order only, denied a defendant's preliminary objections and allowed the plaintiff’s punitive damages claim to proceed in a cell phone/auto accident case.
According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted that he rear-ended the plaintiff's car while in the process of attempting to answer not one but two ringing cell phones in his possession.
Also, according to a June 13, 2014 article by Zack Needles in The Legal Intelligencer entitled "Judge OKs Punitives Claim for Cellphone Use in Crash Case," Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted an unopposed motion to amend a Complaint filed by a plaintiff in the case of Simmons v. Lantry to add punitive damages claims in a case involving a tractor trailer driver who was allegedly distracted by his cell phone use at the time of an accident.
Collateral Estoppel Against UIM Claim After Third Party Resolution
In his January 15, 2014 Opinion in the case of Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.), Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine. In this case, the plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first and the arbitrator entered an award that was less than the tortfeasor’s liability limits.
Similarly, in USAA v. Hudson, 101 Del. 154 (C.P. Del. Co. Feb. 21, 2014), the Delaware County Court of Common Pleas ruled that the collateral estoppel doctrine precluded a subsequent UIM claim for the same accident when the same issue was previously litigated and an award was entered for less than the tortfeasor’s liability limits.
In his decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, 8 F. Supp. 3d 666 (E.D. Pa. March 26, 2014 Joyner, J.), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side where the agreed upon high parameter was below the third party liability limits and where the arbitration award was entered below that high parameter.
In her decision in the Post-Koken case of Gallagher v. Ohio Casualty Ins. Co., No. 13-0168 (E.D. Pa. April 9, 2014), Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District went even further and found that, while a non-binding ADR result did not amount to collateral estoppel, the first settlement nevertheless served to preclude a follow-up UIM claim for the same accident.
In a slightly different collateral estoppel context raised in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit. More specifically, the plaintiff was precluded from seeking a recovery for additional injuries in a lawsuit where it was judicially determined in the prior worker’s compensation matter arising out of the same accident that he only sustained cervical spine injuries.
Several important decisions are anticipated in the year ahead. First, litigators await a decision from the Pennsylvania Supreme Court in the criminal court case of Commonweath v. Koch on the proper authentication and admissibility of text messages may serve as the seminal case on the admissibility of other forms of digital and/or social media evidence.
The auto law bar is also anxiously awaiting the Pennsylvania Supreme Court’s decision in the case of Allstate Prop. and Cas. Co. v. Wolfe, No. 23 MM 2014 (Pa. April 24, 2014) on the issue of whether “[u]nder Pennsylvania law, can an insured tortfeasor assign his or her bad faith claim against an insurer, under 42 Pa.C.S. § 8371, to an injured third party?"
These anticipated decisions, as well as expected lower court decisions in Post-Koken auto accident matters and social media discovery issues should keep matters interesting for litigators in the year ahead.
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