Tuesday, March 10, 2015

Judge Mazzoni of Lackawanna County Reviews Parameters for Site Inspections by Experts

In his recent decision in the case of Gardner v. MIA Products Co., et.al., No. 2011-CV-1560 (C.P. Lacka. Co. No. 10, 2014 Mazzoni, J.), Judge Robert Mazzoni of the Lackawanna County Court of Common Pleas denied a Plaintiff’s appeal from an Order issued by the Special Discovery Master of Lackawanna County with respect to issues raised relative to a site inspection of the Defendants’ facility.  

By way of background, this case involved a slip and fall on the Defendant's premises.  During the course of discovery, the Plaintiff filed a motion to compel the Defendant to allow entry on the property for a site inspection.  The defense responded that it had no objection to a site inspection but required that those entering the premises would be required to sign in and present valid photo identification.  The defense also requested copies of all photos and videos taken on the date of the inspection.

The Plaintiff argued that, under the applicable Rules, the Plaintiff was not required to disclose the identity of various individuals that would be participating in the site inspection as such disclosures would permit the Defendants to learn the Plaintiff’s trial strategy, including but not limited to, the identity of potential experts, which would allegedly be prejudicial to the Plaintiff’s case.

Judge Robert A. Mazzoni
Lackawanna County
The Plaintiff also asserted that the production of all photos and videos completed during the inspection, including those not intended for trial, was not permitted under the attorney work product privilege.  

Judge Mazzoni noted that the defense presented evidence that its sign in and photo I.D. requirement had long been in place and was not specific to this case.

The court additionally reviewed the applicable law under Pa.R.C.P. 4003.5 pertaining to "Discovery of Expert Testimony.  Trial Preparation Material."

While the court agreed that, under that Rule, disclosure of the opinions of experts that a party retained but did not intend to present at trial was protected, the Rule is silent on the issue of the mere "identification" of such experts.  Judge Mazzoni went on to note that he did not see how the identification of experts in this regard would compromise the trial strategy of a Plaintiff in a slip and fall case.  No opinions would be disclosed with such information.  The court also noted that the Defendant had bona fide reasons behind its policy of generally requiring those entering the premises to sign in and identify themselves.

Judge Mazzoni also found the Plaintiff's reliance upon the work product doctrine to be misplaced with respect to the assertion that Plaintiff need not turn over photos or videos generated during the site inspection.  The court noted that no attorney mental impressions, conclusions, or opinions would be disclosed by way of the production of such photos or videos.

As stated, Plaintiff’s appeal of the Special Discovery Master’s Order was denied.  

Anyone desiring a copy of this Opinion by Judge Mazzoni relative to certain parameters for site inspections may contact me at dancummins@comcast.net.

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