Wednesday, December 14, 2016

Year End Review Article Published In Pennsylvania Law Weekly

The below article of mine was published in the December 1, 2016 edition of the Pennsylvania Law Weekly and is republished here with permission:
Civil Litigation

A Year in Review: The Top Recurring Issues

Daniel E. Cummins

December 1, 2016/Pennsylvania Law Weekly 

Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA

A number of recurring issues rose to the top of attention in the past year, many of which are expected to remain on the forefront of civil litigation trends into 2017. Here's a look back at some of the top topics in 2016 in personal injury matters.

Facebook Discovery Issues

In past years, with the rapid expansion of social media, the primary issue was to what extent a party may seek discovery of another party's social media activity, particularly with respect to Facebook. Now that the courts have generally allowed parties to delve into the private portions of another party's social media accounts provided that a predicate showing has been made that relevant information will be uncovered, a more recent trend of cases has considered when any such discovered information must be produced, i.e., before or after a party's deposition.
Typically, the courts have previously held, at least in the case of video surveillance completed on a party, that such surveillance information need not be produced in state court civil litigation matters until after the completion of a party's deposition.
The trial court judges in Dauphin County, including Judge Andrew H. Dowling and Judge Bruce F. Bratton, appear to be among the first to address the issue of when virtual surveillance information, i.e., social media search results from Facebook, Instagram, Tumblr and the like, must be produced have taken a different approach. These judges have ruled that social media information should be produced to an opposing party before that party's deposition, as in Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, Dowling, J.); Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, Bratton, J.); and Appleby v. Erie Insurance Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, Dowling, J.).
Whether other trial court judges from around the commonwealth will rule in a similar fashion or will, instead, apply the same rule of discovery pertaining to video surveillance remains to be seen.

Claims of Privileged Information in Discovery

In its decision in the case Brown v. Greyhound Lines, No. 1167 EDA 2015, 2016 Pa. Super. 108 (Pa. Super. May 24), the Pennsylvania Superior Court addressed issues pertaining to the attorney-client privilege and the work product doctrine as applied between attorneys and third-party administrators in personal injury civil litigation matters.
The issue raised in this matter involved a request for production of documents sent by the plaintiff to a defendant carrier seeking the contents of claims files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett, a third-party adjustment company which contractually handled claims and investigations for the carrier. The defendants objected to these discovery requests on the basis that the materials were confidential under the attorney-client privilege and attorney work product privilege.
Applying the law to the case before it, the appellate court found that the defendants had failed to establish that the trial court's rulings allowing for the discovery of certain documents should be overturned. In part, the court faulted the defendants in failing to carry their burden of proof on the privilege by failing to make any specific arguments beyond citing general precepts concerning the attorney-client and work product privileges.
The issue of the admissibility of communications between defense counsel and a third-party claims administrator was also addressed in the Middle District court decision by Judge Matthew W. Brann in the case of Heller's Gas v. International Insurance of Hannover, 4:15-CV-01350 (M.D. Pa. June 1).
In this breach of contract and bad-faith case relative to a policy that provided commercial premises coverage, the plaintiff insured claimed that documents withheld or redacted in discovery did not fall within the attorney-client privilege, the work product doctrine, and did not pertain to reserve information. The plaintiff more specifically asserted that all but one of the documents at issue was either sent to or from employees of the insurer's third-party administrator or its authorized claim representative, and as neither of these entities were subsidiaries of, or owned by, the insurer, the communications were not privileged.
The carrier countered with the argument that the communications between the third party administrator's in-house counsel and the claim representative's in-house counsel with the insurer all fell within the scope of attorney-client privilege.
The court reviewed the unredacted documents during an in camera session. Thereafter the court, referring to F.R.C.P. 26, decided: "After thoroughly examining the documents, this court finds that the information redacted appropriately falls within the attorney-client privilege and work product doctrine and is consequently information directly related to or referencing legal strategy regarding the instant litigation. The correspondence further supports [the insurer's] latterly advanced argument that [the third party administrator and authorized claims representative] are essentially agents of [the insurer]." As such, the court found that the redactions were appropriate.
In a more recent decision on issues pertaining to assertions of privilege in response to discovery requests, the Superior Court emphasized that such issues were immediately appealable on an interlocutory basis as collateral orders.
In Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8), a case that involved claims of the attorney-client privilege and psychologist/patient privilege, the court held that in the event that a trial court orders the production of the privileged information in response to a motion to compel, even for the purpose of an in camera review by the trial court, the aggrieved party is allowed an immediate interlocutory appeal as of right as a collateral order.
The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them. The Superior Court also ruled that the application of privileges is subject to a de novo review.

Waiver/Release from Liability Forms

A number of decisions were handed down over the past year upholding waiver or release forms executed by injured parties prior to participating in recreational activities.
In an apparent case of first impression of Feleccia v. Lackawanna College, No. 12-CV-1960 (C.P. Lacka. Co. Feb. 2), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.
In his opinion, Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases for skiing, white water rafting, weight lifting, skating, and motorcycling, among other types of activities, no case was found involving collegiate football.
Gibbons nevertheless ruled that neither the applicable law nor the facts of this case required the court to distinguish between the inherently dangerous nature of football and these other types of sporting activities noted. As such, the court ruled that waivers of liability executed by the students precluded their recovery.
In the Superior Court case of Hinkal v. Gavin Pardo & Gold's Gym, No. 165 MDA 2014, 2016 Pa. Super. 11 (Pa. Super. Jan. 22) (en banc), the Pennsylvania Superior Court affirmed a trial court's entry of summary judgment in favor of the defendant's on the basis of a waiver agreement signed by the injured party plaintiff as part of a membership at Gold's Gym.
The Pennsylvania Superior Court agreed with the trial court's decision that the waiver language set forth in the Gold's Gym membership agreement was valid and enforceable. Accordingly, the entry of summary judgment in favor of the defendant was affirmed.
In another recent decision by the Superior Court in the case of Toro v. Fitness International, 2016 Pa.Super. 243 (Pa. Super. Nov. 10), the Pennsylvania Superior Court again affirmed the entry of summary judgment in favor of a defendant fitness center on the basis of an executed waiver form in a slip and fall case.
As part of its decision, the appellate court ruled that a release or waiver of liability signed by the plaintiff when joining the health club was valid and binding. The court stated that, where someone engages in a voluntary athletic or recreational activity, a release in a contract for the use of the facilities is not contrary to public policy. The court also ruled that a waiver of liability in this regard was not a contract of adhesion because there is no requirement for anyone to engage in recreational activities. The court also referred to the oft cited rule that a failure to read a release or waiver language before signing it does not affect its validity.

Neuropsychological IMEs

In its decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9), the Pennsylvania Superior Court affirmed a trial court's granting of a defendant's motion for a protective order prohibiting the presence of third-party observers during the standardized test portion of a neuropsychological evaluation.
Following a motor vehicle accident that gave rise to this case, the plaintiff treated with a neuropsychologist and, during that treatment, the plaintiff's treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the plaintiff's attorney or any other third party. The defense hired a doctor to complete an independent neuropsychological examination. The plaintiff's counsel demanded to be present during all components of the neuropsychological examination. The IME doctor objected to this request, including the plaintiff's counsel's request to audio tape the testing evaluation.
The IME doctor indicated that he would allow the plaintiff's attorney to be present during the interview portion of the examination. However, the IME doctor would not permit either the presence of the plaintiff's counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.
The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant's right to counsel during a psychological examination.
On appeal the appellate court affirmed the trial court's order, which stated that, although plaintiff's counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing. The order further provided that no recording device would be permitted in the evaluation room.
The Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue. The court also found support for the trial court's decision under Pa. R.C.P. 4010, pertaining to physical and mental examination of person.
The Superior Court also noted that, although there was "no case law [that] address of the application of Rule 4012 to Rule 4010," the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive rule, which covers all depositions and all discovery. Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.

Sever and Stay Post-'Koken' Bad-Faith Claims

Over the past year there was a rising trend of motions to sever and stay bad-faith claims in post-Koken automobile litigation matters.
A split of authority continues in this regard, with some courts allowing the severance and the stay of bad-faith claims, some courts severing the bad-faith claim but not staying bad-faith discovery, and some other courts denying these types of motions altogether. Summaries of at least some of these decisions uncovered, most by order only and without opinion, can be found on the post-Koken scorecard on my "Tort Talk" blog at
It remains to be seen if this issue, as well as other important post-Koken issues will make it up the appellate ladder in the year ahead. As the lower courts and the bar are craving guidance in this still novel area of the law, it is hoped that the Superior Court would publish any of its decisions on these topics as opposed to offering unpublished decisions marked "nonprecedential."


In 2016, the courts and the bar continued to grapple with how to apply the Pennsylvania Supreme Court's products liability decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), in which the court ruled that the Restatement (Second) of Torts continued to be the accepted guideline for such cases.
In Tincher, the Supreme Court more specifically held that the nondelegable duty in a strict liability case is that the a person or company engaging in the business of selling a product has a duty to make a product that is expected to and does reach its user without substantial change in the condition in which it is sold and free from a defective condition that is unreasonably dangerous to the user of the product.
The court also confirmed under Tincher, that to demonstrate a breach of duty in a strict liability matter, a plaintiff must prove that a manufacturer placed a defective product on the market. Under Tincher, a case of strict products liability requires proof, in the alternative, either of the ordinary consumer's expectations or of the risk-utility of a product.
The court in Tincher more specifically held that the consumer expectations test defines a "defective condition" as a condition, upon normal use, dangerous beyond the reasonable consumer's contemplations. In contrast, the risk-utility test offers a standard which, in typical common law terms, states that: "a product is in a defective condition if a 'reasonable person' would conclude that the probability and seriousness of harm caused by the product outweigh the burden of costs of taking precautions."
In the past year, there have been some motions for summary judgment granted and some denied on the basis of Tincher. The trial courts are also attempting to craft new jury instructions for trials of post-Tincher matters. It is anticipated that the Tincher decision will continue to have a significant impact in products liability litigation matters until the Pennsylvania Supreme Court has a chance to revisit the issue. •

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

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