Thursday, December 21, 2017

ARTICLE: Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends

The below article of mine recently appeared in the December 14, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:
Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends
By Daniel E. Cummins
Pennsylvania Law Weekly
December 14, 2017

Another year of litigation has come to a close. Given that precedent has a way of repeating itself here’s a look back at notable decisions from the past year.

Elements of Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

In Rancosky, the Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Property & Casualty Insurance, 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of: that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to note that evidence of a motive of self-interest or ill will was not a prerequisite for a plaintiff to prevail on a statutory bad faith claim.

Dead Man’s Rule

The Pennsylvania Superior Court provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930, in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the defendant’s participation in discovery when no depositions or Interrogatories were completed.

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a new matter pursuant to Pa. R.C.P. 1030 in order to be preserved.

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.

Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person’s blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Coughlin case arose out of a motor vehicle versus pedestrian accident.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court’s discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court’s related assessment of whether the evidence establishes the party’s unfitness to act in light of the alleged intoxication.

Use of Powerpoint at Trial

The use of visually stimulating powerpoint exhibits at trial has become the norm in the digital age.

In the case of W.C. v. Janssen Pharmaceuticals, 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017, Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court. This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the closing argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.

Cellphone Use

Another recurring issue in civil litigation matters is the extent to which cellphone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.), the court allowed a claim punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff alleged that the defendant rear-ended the plaintiff’s vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the plaintiff had not produced evidence in support of this claim.

Attorney-Client Privilege

The attorney-client privilege and the attorney work product doctrine were both reviewd in the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017, Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.). The Pennsylvania Superior Court affirmed the granting of a motion to compel the production of a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney-client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm. It was noted that the public relations firm was not a part of the team offering legal advice.

The court also found that the work product protection was waived for the same reason.

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney-client privilege and the work product privilege.

Limited Tort

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court’s decision that a plaintiff’s insomnia did not amount to a serious impairment of a body function for a limited tort the plaintiff under the facts presented.

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

Post-Koken Issues

A number of recurring issues in post-Koken automobile accident matters continued to be litigated across the commonwealth of Pennsylvania.

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation.

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation. The Stepanovich decision suggests, but did not decide, that post-Koken claims could be tried together.

In post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and stay orders relative to the bad faith claims. There is a split of authority among the trial courts, but the federal courts seem to be trending toward denying motions to sever and stay bad faith claims.

A Look Ahead into 2018

As this year comes to an end, there are also important rule changes and potential important decisions to anticipate in 2018.

One decision to keep an eye out for would be the one in the Pennsylvania Supreme Court case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017). The court is expected to address issues pertaining to the validity of household exclusions and stacking issues with respect to automobile insurance policies.

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court issued an order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she was suffering from the disease for years before filing the suit.

The court has agreed to address the more specific issue of whether the plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the plaintiff “did not and was financially unable to, confirm [the defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”

A split Pennsylvania Superior Court panel previously ruled in this case that the plaintiff’s claims were barred by the two-year statute of limitations.

Civil litigators should also be aware that the Public Access Policy of the Unified Judicial System of Pennsylvania is about to go into effect and that they may face sanctions if they do not comply with the mandates of this new policy pertaining to the filing of documents with the court.

By way of background, with the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective Jan. 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.”

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other certification documents will have to be filed as well. More information on this new policy may be found on the AOPC’s website or at a number of CLE courses being held around the commonwealth.

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  Attorney Cummins also provides Mediation Services at Contact him at

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.