Spoliation Sanction Granted in Med Mal Case

In his recent decision in the case of Hughes v. Wilkes-Barre Hospital Company, No. 16-CV-6463 (C.P. Lacka. Co. April 18, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion In Limine seeking to impose spoliation sanctions against the Defendant healthcare providers in an effort to secure an adverse inference instruction based upon the alleged failure of one of the Defendant doctors to collect an umbilical cord blood gas sample at the time of the birth of the child in this obstetrical medical malpractice claim.  

After review the record before the court and comparing the same to the current status of Pennsylvania law pertaining to sanctions for alleged spoliation of evidence, the court ruled that the Plaintiffs were entitled to an adverse witness jury instruction that the Plaintiff’s counsel would be permitted to cross-examine the defense experts regarding the failure to collect the blood gas sample and its impact upon determining the timing and cause of the minor’s alleged brain injury.   The court denied the Plaintiff's request for greater sanctions as not warranted by the record before the court.

 

Anyone wishing to review this decision, may click this LINK.

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I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

Latest Stacking Opinion From Pennsylvania Superior Court (Non-Precedential)

In a recent non-precedential decision in the case of Newhook v. Erie Ins. Exch., No. 1917 EDA 2017 (Pa. Super.  April 25, 2018 Panela, J., Lazarus, J., and Strassburger, J.), the Pennsylvania Superior Court affirmed a trial court’s decision which held that the carrier was required to provide a new rejection of stacking waiver form when cars are added to a policy where stacking was previously rejected. 

The carrier attempted to argue that Sackett II applied and that the additional cars were continuous coverage.   In this memorandum opinion, the Superior Court instead concluded that the Pennsylvania Supreme Court’s decision in Sackett I and the Pennsylvania Superior Court’s en banc decision in Bumbarger controlled.

As such, the insured was allowed stacked UIM coverage.

In this Newhook decision, the Superior Court noted that the analysis for determining when a carrier was required to secure new rejection of stacking forms following the addition of a new vehicle to a policy involved (1) a review of how the new vehicle was added to the policy, i.e., via endorsement or a newly acquired auto clause, and (2) a review of what was the specific language of the relevant clause(s) in the insurance policy.  See Mem. Op. at p. 7.

Anyone wishing to review this non-precedential decision may click this LINK.

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

DON'T FORGET: ADMINISTRATIVE PROFESSIONALS DAY IS TODAY - SHOW SOME APPRECIATION

 

 

 

UIM Carrier's Post-Koken Motion for Severance/Bifurcation of Trial Denied in Lehigh County

In the Post-Koken Lehigh County Court of Common Pleas case of Holland v. Yankauskas and Erie Insurance Exchange, No. 2015-C-1866 (C.P. Lehigh Co. Nov. 2, 2017 Reichley, J.), the court denied the UIM carrier’s Motion for Severance in which the carrier requested a separate trial.   The Motion was denied without prejudice to the carrier's right to restate the Motion closer to trial.

While noting that it had the power under 213 to order separate trials of any parties or issues in furtherance of convenience or to avoid prejudice, the court felt, at this early juncture of the case (which was still in the discovery phase), that it was not established that there was a need to bifurcate the trial at that point.  

In so ruling, the court noted that it recognized the “additional challenges posed by presenting both issues concurrently to one jury.”   However, the court also noted that appropriate jury instructions could be provided if necessary in a joint trial to clarify and distinguish the issues with respect to each Defendant.

In the end, the court denied the Motion without prejudice to the carrier's right to restate the Motion at the conclusion of discovery.  

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

I send thanks to Attorney Richard (Ricky) E. Santee of the Bethlehem, Pennsylvania law firm of Shay, Santee & Kelhart for bringing this case to my attention.

Bloomberg Law Article on Punitive Damages Claims in Texting While Driving Cases

I was recently interviewed by Bruce Kaufman for his article on the Bloomberg Law Website entitled "Texting and Driving May Soon Cost You."  The article analyzes the rise of punitive damages claims in driving while texting cases around the nation.  Mr. Kaufman interviewed me regarding this issue in Pennsylvania.

If you are interested, here is a LINK to his article.

SAVE THE DATE - JUNE 11, 2018 - LACKAWANNA PRO BONO'S GOLF TOURNAMENT

Appeal of Denial of Motion to Disqualify a Court Appointed Neutral Quashed

In the case of Haviland v. Kline & Specter, No. 1791 EDA 2017 (Pa. Super. March 22, 2018 Murray, J., McLaughlin, J., and Stevens, J.) (Op. by Murray, J.), the Pennsylvania Superior Court addressed the rules of pertaining to permissible appeals from the trial court. In this particular case, the question was whether a trial court’s denial of a motion to disqualify a court appointed neutral arbitrator was appealable.   The court ruled that it was not and, therefore, he appeal was quashed.  

This matter arose out of a dispute between law firms over fees.   In the trial court proceedings, the court appointed a neutral arbitrator to hear the matter.   One of the parties involved filed a motion to disqualify that arbitrator.   After the trial court denied the motion to disqualify the neutral arbitrator, the case was appealed.  

A main portion of this court’s Opinion dealt with whether the trial court’s denial of the motion to disqualify the arbitrator was appealable as a non-final order.   In this regard, the Superior Court stated that it was unable to locate any case directly on point. However, the court concluded that the case law addressing the interlocutory nature of pre-trial recusals of trial court judges to be persuasive and instructive.  

The court held that “an order denying a motion seeking the recusal or disqualification of an arbitrator, as with an order denying the recusal of a trial judge, is not a final order or an interlocutory order appealable as of right or as a collateral order.  

Given that the Superior Court found that the trial court’s Order denying a party’s motion to disqualify an arbitrator is not a final order or an interlocutory order appealable as of right or as a collateral order, the Superior Court quashed this appeal as it, therefore, did not have jurisdiction to the merits of the issue presented. 

Anyone wishing to read this case may click this LINK.

Judge Nealon Addresses "Regularly Conducting Business Element" of Improper Venue Challenge

The intersection of quality and quantity in the context of an improper venue challenge was recently addressed by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Espinosa v. J & J Limousine Service, No. 18-CV-0302 (C.P. Lacka. Co. Feb. 26, 2018 Nealon, J.).

In addressing the quantity and quality of contacts by a Defendant in a particular county, the court in Espinosa found that venue in this personal injury matter was improper in Lackawanna County where the Defendant conducted less than 1% of its commercial activities within the county.  As such, Judge Nealon transferred the case to Lehigh County where the accident occurred, which was also the county in which the Plaintiffs resided and where the Defendant regularly conducted business.  

According to the Opinion, the Defendant operated a passenger van which transported the Plaintiff to a park in Lehigh County.   While the parties were in Lehigh County, the door of the passenger van allegedly swung open, which caused one of the Plaintiffs to fall forward and allegedly sustain personal injuries.

The record before the court confirmed that the Defendant's principal place of business was in Lehigh County.  

The Defendants filed a Preliminary Objection asserting improper venue in Lackawanna County and asserted that the only connection with that county was that the Plaintiffs’ attorney’s law office was located in that county.  

In response, the Plaintiff pointed to the Defendant’s website which advertised that its services included multiple locations within Lackawanna County.   However, the court noted that other information presented in the record before the court revealed that the work by the Defendant within Lackawanna County was substantially less than 1% of the Defendant’s annual transportation business. 

The court accepted the Defendant’s arguments that its contacts within Lackawanna County did not occur with sufficient frequencies to satisfy the quantity component of the venue standard.   The court’s review of case law did not reveal any case where a court had found that the venue standard was met where Defendant’s contacts within a county were less than 1% of the total revenues.  

Accordingly, Judge Nealon ruled that the Defendant’s business activities in Lackawanna County were not sufficiently continuous or habitual to quality as to “regularly conducting business” in Lackawanna County.

The Defendant’s Preliminary Objections were sustained and the case was transferred to Lehigh County.

Anyone wishing to review this Opinion by Judge Nealon may click this LINK.

To review other Tort Talk posts on cases applying the Quantity vs. Quality Test for proper venue, click this LINK.

ARTICLE: Authentication in the Digital Age: In Recent Cases, Old and New Collide

This article of mine appeared in the April 10, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.

 

Authentication in the Digital Age:

In Recent Cases, Old and New Collide

By Daniel E. Cummins | April 05, 2018                     

 

Daniel E. Cummins

As they say, “The more things change, the more they remain the same.” And so it is with the changing forms of evidence in the digital age including various types of electronic messages and a wide variety of social media platforms designed for the exchange of information, photos and videos. But what has not changed are the long-standing and staid Rules of Evidence applicable to all forms of evidence.

The old and the new are colliding in recent cases in which the state and federal courts of Pennsylvania have addressed the novel issues of how different forms of digital evidence are to be authenticated before such evidence may be ruled admissible in a court of law.

While the seminal decisions laying down the requirement and parameters of the authentication of digital evidence have all come out of the criminal court context, it can be anticipated that identical rulings will be handed down in the civil litigation context as well in the future.

Rule of Evidence 901

Under Pa.R.E. 901(a), which is consistent with its counterpart Federal Rule of Evidence, it is provided that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

The rule goes on to give specific examples of how different types of evidence may potentially be authenticated. Currently, there is no specific example provided with respect to the new situation of social media or digital evidence. Perhaps there is a need for an amendment of Rule 901 in this regard in light of the recent case law on the issue.

According to the commentary under Pa.R.E. 901, “the authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection,” see Pa.R.E. 901, Commentary, citing Commonwealth v. Hudson, 414 A.2d 1381 (1980); Commonwealth v. Pollock, 606 A.2d 500 (1992).

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Recent decisions handed down in Pennsylvania have begun to confirm that the mandates of Rule 901 apply to all forms of electronic and social media messages.

A Case of First Impression

In a 2005 decision issued during the dawn of the digital age, the Pennsylvania Superior Court addressed, for the first time, the issue of authentication of evidence of instant messages in a criminal court matter in the case of In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005).
In the case of F.P., the Superior Court rejected the argument that instant messages, which were the precursor to emails and text messages, are inherently unreliable because of their relative anonymity and the occasional difficulty connecting a message with its author given that any person could be using the computer from which the message originated (assuming that person had the appropriate password).

The court in F.P. noted that these issues were no different from letters or other paper documentary evidence that could be forged or denied by the alleged writer. While the court in F.P. acknowledged that, “unless the purported author is actually witnessed sending the email, there is always the possibility it is not from whom it claims, … the same uncertainties exist with traditional written documents.” For example, a “signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen.”

The court reiterated its belief that that email messages and similar forms of electronic communication could be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law and without the need for the creation of new rules or law for this new form of evidence.
As such, the court in the F.P. case held that, like documentary evidence, electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901.

The F.P. case laid out the framework for authenticating digital evidence by first reaffirming the basic principle that the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion.

It was additionally noted that, like paper evidence, evidence of paperless electronic messages could also be authenticated by either direct proof or by circumstantial evidence. The court noted that, under Pa.R.E. 901, such direct evidence in support of authentication could be in the form of testimony of a witness with personal knowledge that the evidence is what the proponent claims it to be.

The court also held that proof of any circumstances which will support a finding that the writing is genuine can also suffice in court to authenticate the writing.

In the F.P. case, the court pointed to circumstantial evidence relating the content of the messages to prior statements and actions by the alleged sender. The court also was influenced to allow the evidence of the text message as it appeared that the alleged sender sent the message given that he used his own first name in the message sent.

Accordingly, the court in F.P. found that the evidence of the instant messages had been properly authenticated and were, therefore, properly admitted into evidence.

 Another Case of First Impression

Six years later, another case of first impression, this time pertaining to text messages, was handed down in the matter of Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014). The split affirmance by the Supreme Court leaves the Superior Court decision in Koch as good law.

Koch involved an appeal by a criminal defendant from a Cumberland County conviction for drug offenses based, in part, on evidence from text messages allegedly sent by the defendant. On appeal, the defendant challenged the admissibility of the evidence of text messages on the basis of lack of authentication.

The Pennsylvania Superior Court in Koch ruled that text messages were not admissible unless they were properly authenticated, i.e., unless there was evidence presented that the messages did indeed come from the alleged sender.

The defendant in the criminal case asserted that there was no evidence to establish that she had sent any of the drug transaction-related text messages. She also asserted that it had not been established that the drug transaction-related texts received on the phone were specifically directed to her. Moreover, the defendant offered evidence that her cellphone was also allegedly being used by someone else at the time the messages were sent.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted into evidence during the course of the trial. The criminal conviction was overturned.

As support for its ruling, the Superior Court in Koch pointed to the above-noted Pennsylvania Superior Court decision in In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005) pertaining to instant messages.

The Superior Court in Koch agreed with the analysis of the F.P. case that electronic messages could be authenticated in the same manner that paper evidence was authenticated.  The court in Koch noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.” However, the Koch court cautioned that, while text messages and emails can almost always be electronically traced back to their source cellphone or computer, the sender of such messages is not always thereby automatically identified. In other words, particular cellphones and computers can arguably be utilized by anyone at anytime to send the messages.

The Superior Court in Koch reviewed similar decisions from around the United States and noted that, “in the majority of courts to have considered the question, the mere fact that an email bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.”

As such, the Superior Court held that there must also be “circumstantial evidence, which tends to corroborate the identity of the sender,” before an electronic message may be authenticated and admitted.

Ultimately, the court found that the trial court abused its discretion in admitting the text messages where the cellphone’s physical proximity to the defendant at the time of her arrest had no probative value with regard to whether she authored the messages.

The Koch requirements for authentication of a criminal defendant’s text messages were followed in the more recent case of Commonwealth v. Mosley, 114 A.3d 1072, 1082 (Pa. Super, 2015).  In Mosely, the court found that there was no evidence, direct or circumstantial, clearly proving that the defendant was the author of the drug-related text messages, or any corroborating witness testimony regarding authenticity of the messages. Consequently, the court in Mosely held that the trial court erred in determining that the drug-related texts were properly authenticated.

In Commonwealth v. Murray, 174 A.3d 1147 (Pa.Super., 2017), the Superior Court affirmed a trial court finding that text messages had been properly authenticated. The Murray court noted that ‘the trial court determined that the text messages in question were properly authenticated based on the contextual clues in the messages and the fact that [the officer] retrieved the phone from Murray’s person.”

A similar ruling pertaining to the authenticity of a text message was also handed down in the case of Commonwealth v. Woods, No. 1324 MDA 2013 (Pa. Super.,2014)(unpublished, nonprecedential).

A Third Case of First Impression

In a very recent March 15 decision in Commonwealth v. Mangel, No. 2018 Pa. Super. 57, the Pennsylvania Superior Court ruled, for the first time in state court, that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the posts. That is, the evidence was inadmissible unless it was properly authenticated.

The court in Mangel supported its requirement of authentication by noting that, in this day and age, social media accounts can be easily hacked or even entirely faked.

The Mangel court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.

Judge John L. Musmanno wrote in Mangel that “authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”

Consistent with the rulings in the Koch and F.P. decisions, both the trial court and the appellate court in Mangel found that merely presenting evidence that the posts and messages came from a particular social media account bearing the defendant’s name was not enough to rule the evidence admissible. Citing to the F.P. and Koch decisions, the Mangel court noted that these types of Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to the authentication of text messages and instant messages.

The Superior Court also relied upon a prior U.S. Court of Appeals for the Third Circuit decision requiring authentication of Facebook posts in the case of United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

The Third Circuit rejected the government’s argument that pursuant to F.R.E. 902(11) the contents of the “chats” exchanged over Facebook were “self-authenticating” as business records when accompanied by a certificate from Facebook’s records custodian. The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11).

The Browne court nonetheless affirmed the appellant’s conviction after finding that the trial record reflected more than sufficient extrinsic evidence to link the defendant to the chats and thereby satisfied the government’s authentication burden under a F.R.E. 901 analysis.

Anticipated impact in civil matters

While all of the above cases pertaining to the authentication of various types of electronic messages arose in the criminal law context, it is safe to predict that identical rulings will be handed down when these issues are raised in a state court or federal court civil litigation matter. The Rules of Evidence pertaining to authentication of evidence are the same regardless of in which type court and which type of litigation the issue arises.

It can be anticipated that this issue of authentication will continue to reoccur not only with respect to authenticating emails and text messages but also tweets, along with commentary, photos, and videos on social media sites such as Facebook, Youtube, Linkedin, Snapchat, Instagram and any other social media platforms that may come into existence.

When planning to rely upon these forms of digital evidence, litigators, prosecutors, and criminal defense attorneys should be prepared to produce the related direct or circumstantial evidence necessary to authenticate the electronic evidence at issue, or risk not being able to utilize the evidence at all.


Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.
 

Personal Jurisdiction on Out-of-State Entity Not Established by Presence of Subsidiary Company in Pennsylvania

Federal court personal jurisdiction issues were reviewed in the case of Esposito v. Las Vegas Sands Corp., No. 17 - CV - 2936 (E.D. Pa. Feb. 21, 2018 Surrick, J.).

In this Esposito decision, the court dismissed a non-resident Plaintiff’s slip and fall claims against a non-resident Defendant for lack of personal jurisdiction.  The Plaintiff allegedly fell at the Venetian Hotel in Las Vegas, Nevada.

The court found that the fact that the non-resident Defendant also operated a separately incorporated Pennsylvania subsidiary, which was the Sands Bethlehem Casino in Bethlehem, Pennsylvania, did not expose that Defendant to personal jurisdiction in Pennsylvania for out-of-state claims not involving any activity of that subsidiary. 

The court noted that, under Pennsylvania law, a parent corporation does not carry on “a continuous and systematic” business through separately incorporated subsidiaries. 

The court also found that the out-of-state Defendant was not subject to general jurisdiction because Pennsylvania was neither the state of that Defendant’s incorporation nor the location of that Defendant’s principal place of business.

The court ultimately ruled that this matter would be transferred to the place where the accident happened.  

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

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.  

$21 Million Dollar Bad Faith Award Erased by Pennsylvania Superior Court (Update: Reargument Granted and Decision Vacated on May 31, 2018)

In its decision in the case of Berg v. Nationwide Mut. Ins. Co., Inc., No. 713 MDA 2015 (Pa. Super. April 9, 2018 Ott, Stabile, J.J., and Stevens, P.J.E.) (Op. by Stabile, J.) (dissenting Op. by Stevens, P.J.E.), the Pennsylvania Superior Court vacated a $21 million dollar judgment entered by a Berks County trial court judge and remanded the case for the entry of judgment in favor of the carrier in a property damage bad faith cause of action.  

As noted in the Opinion, this case has been up and down the appellate ladder over the past two decades.  This matter arose out of a property damage claim relative to the insured’s Jeep Grand Cherokee. 

According to the Opinion, this bad faith suit initially began with the filing of a Writ of Summons back in January of 1998, over twenty (20) years ago.  

The insured's Jeep Grand Cherokee was allegedly damaged in a motor vehicle accident as a result of which there were no personal injuries.  

The Plaintiffs’ causes of action against the carrier included breach of contract, negligence, fraud, conspiracy, violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL), and insurance bad faith.  

Back in 2004, the case proceeded to a jury trial and the jury entered a verdict in favor of the Defendants on all causes of action except the catch all provision of the UTPCPL.   The jury awarded the Plaintiff $1,925.00 in damages against one Defendant and $295.00 against the carrier Defendant for the UTPCPL violation.  

Thereafter, a second phase of the trial began in the form of a bench trial on the UTPCPL treble damages and bad faith.   That bench trial was in 2007 and resulted in a directed verdict in favor of the carrier.   That result was appealed and the case went to the Supreme Court before being remanded back to the trial court for another bad faith trial.  

The second bad faith bench trial took place in approximately June of 2014 before Judge Jeffrey K. Sprecher.   Judge Sprecher issued a verdict in favor of the Plaintiffs on their bad faith claim and ordered the carrier to pay $18 million in punitive damages and $3 million dollars in attorney’s fees.  

This bench trial verdict is the subject of the appeal in the above cited latest decision in the Berg case and, as stated, resulted in the Superior Court vacating that $21 million dollar bench trial verdict and entering judgment in favor of the carrier under the standard of review applicable to non-jury cases.  

In the Pennsylvania Superior Court’s detailed 61 page Opinion, the appellate court reviewed the current status of bad faith law in Pennsylvania and affirmed that clear and convincing evidence of bad faith conduct on the part of the carrier is required to support such a claim.  

The Berg court restated the basic law that “[I]n order to recover in a bad faith action, the Plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew or recklessness disregarded its lack of a reasonable basis.”  See Berg at p. 10 [citation omitted.].  

Here, the appellate court found many of the factual findings of the trial court were not supported by the record presented.  

In Berg, the basic issue raised by the Plaintiff was that the carrier allegedly acted in bad faith by repairing the Plaintiff’s Jeep rather than declaring the Jeep a total loss and compensating Plaintiffs for its value at the time of the loss.  The insured also asserted that faulty repairs were made to the Jeep and that the carrier should have been aware of such faulty repair work. 

The appellate court found that neither the Plaintiff nor the trial court had cited any legal authority supporting the conclusion that a carrier’s duty of good faith and fair dealing requires an inspection of repairs prior to returning a vehicle to an insured.  The court noted that, even if there were such a duty recognized under Pennsylvania law, the evidence in this case did not rise above a showing of negligence, and, therefore, the evidence did not support a finding of bad faith by clear and convincing evidence.  

Relative to the trial court’s findings of bad faith, the appellate court noted that it had the authority to reverse such findings when the trial court’s “critical factual findings are either unsupported by the record or do not rise to the level of bad faith.”  See Berg at p. 38 [citations omitted] .  

The Superior Court went on, at length, to describe the trial court’s findings as being devoid of merit at times and in reliance upon facts and opinions outside of the record at other times.  

The appellate court also faulted the trial court to the extent that the trial court based its findings of bad faith upon alleged discovery violations by the carrier during the course of the litigation.    The court noted that a trial court’s findings of bad faith based upon discovery violations amounted to a clear error.  See Berg at p. 48. 

The appellate court in Berg noted that, while it is true that a finding of bad faith under §8371 may be based upon an insurer’s conduct before, during, or after litigation, the courts of Pennsylvania have refused to recognize that a carrier’s discovery practices constitute grounds for a bad faith claim under §8371, absent the use of discovery to conduct an improper investigation.   Berg at p. 48-49 [citations omitted].  

 The Superior Court in Berg explained that §8371 is designed to provide a remedy for alleged bad faith conduct by a carrier in its capacity as an insurer for breach of its fiduciary duty to an insured by virtue of the parties’ insurance policy, and not as a legal adversary in a lawsuit filed against it by an insured.  Berg at p. 49.   The court went on to note that discovery violations are  to be separately governed under the exclusive provisions of the Pennsylvania Rules of Civil Procedure.   Id.  

The appellate court also rejected the trial’s findings of bad faith on the basis of allegations that the carrier allegedly hoped to overwhelm Plaintiffs with its superior resources and that the carrier had allegedly adopted a scorched earth policy towards this litigation.  Id. at 50.    The appellate court found that there was no basis in the record to support this finding by the trial court judge.   

The appellate court also found that the trial had incorrectly found that the carrier had engaged in bad faith on the basis of evidence of the extended length of this litigation.   In this regard, the Superior Court in Berg stated that “Plaintiffs had the right to prosecute their case zealously within the bounds of the law, just as [the carrier] had the right to defend itself if it believed its personnel did not act in bad faith.  We cannot arbitrarily impose a limit on the time and resources an insurer spends in defending a bad faith action.”   Berg at p. 52.  

As stated, in the end, the Superior Court in Berg vacated the judgment of the trial court primarily because of the appellate court’s finding that the record did not support many of the trial court’s critical findings of fact.   The Superior Court in Berg felt that it had no choice but to vacate the trial court’s judgment after an exhaustive review of the record before the appellate court. 

In concluding its Opinion, the majority in Berg disagreed with the dissenting judge’s assertion that the majority was improperly substituting its own findings for those of the trial court under the applicable standard of review.   The appellate court reiterated that the “trial court engaged in a limited and highly selective analysis of the facts and drew the most malignant possible inferences from the facts it chose to consider” all of which, in the eyes of the Superior Court supported a vacation of the verdict.   Berg at p. 60.  

Anyone wishing to review the Majority Opinion in Berg may click this LINK

The Dissenting Opinion can be viewed HERE.

UPDATE:  On May 31, 2018, the Pennsylvania Superior Court granted the Plaintiff's request for reargument and vacated this decision.

Pennsylvania Supreme Court Affirms Award of Quantum Meruit Damages in Attorney's Fees Dispute

In the case of Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., No. 7 WAP 2017 (Pa. March 6, 2018 Dougherty, J.), the Pennsylvania Supreme Court ruled that the Superior Court erred in reversing a trial court’s award of quantum meruit damages to a predecessor law firm because the successor counsel received and retained a benefit from predecessor counsel’s work, thereby entitling the predecessor counsel to some payment.  

This matter arose out of a wrongful death lawsuit following a motor vehicle accident.  

The Supreme Court found, in part, that the predecessor counsel had conferred a benefit upon both the client and the successor counsel who later concluded the matter.   It was noted that the predecessor’s work on the litigation contributed towards the settlement eventually negotiated by the successor firm and that the predecessor firm was not paid for that work. 

As such, the court ruled that the predecessor counsel could recover damages in quantum meruit.   The court noted that the circumstances of this case established that the successor counsel received and retained the benefit from the predecessor counsel such that it would be unjust if the predecessor counsel was not provided with some payment.  

Anyone wishing to read this case may click this LINK.

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (March 20, 2018).  

Sanctions Issued in Pike County Case Due to Plaintiffs' Alleged Failure to Comply with Multiple Discovery Orders Compelling Completion of Depositions

Sanctions were granted against a Plaintiff in the Pike County Post-Koken auto accident case of Middaugh v. Horacek and State Farm Ins. Co., No. 691-2011 Civil (C.P. Pike Co. April 2, 2018 Miller, S.J.) due to the Plaintiff's alleged failure to cooperate with the defense efforts to complete the Plaintiff's deposition.  The motion for sanctions at issue was decided by visiting Judge Linda Wallach Miller of the Monroe County Court of Common Pleas sitting by assignment in Pike County.

Due to the failure to complete depositions, each of the three named Plaintiffs were ordered to pay $1,000 each as a sanction and, as a further sanction, the Plaintiffs were additionally prohibited from providing any evidence at trial in support of a claim for damages.

According to the opinion, the case had been in litigation for six years over which the Pike County Court had issued two separate Orders compelling that depositions be completed within certain deadlines.  When such depositions were not completed, the defense filed the Motion for Sanctions at issue.

In her Opinion, Judge Miller reviewed the factors to be considered under Pa.R.C.P. 4019 when addressing a discovery motion for sanctions.

The court ultimately ruled that sanctions were warranted where the case had been pending for six years and where the Plaintiff's depositions had not been completed despite the issuance of two separate court orders compelling the same.

As the case makes for an interesting read, I provide this LINK to the Opinion.

Adverse Inference Sanction Granted Due to Spoliation of Fire Scene

In the case of Dyvex  Industry v. Agilex Flavors & Fragrances, Inc., No. 12 - CV - 0979 (M.D. Pa. Feb. 27, 2018 Mannion, J.), the court granted a defense Motion for an  Adverse Inference Spoliation Sanction under a finding that the Plaintiff had spoliated a fire scene in a products liability suit.  

According to the Opinion, the Plaintiff had identified the Defendant’s product as a likely cause but went ahead with the demolition of the fire scene without giving the Defendant an opportunity to inspect.   The court also noted that the Plaintiff had informed the Defendant that the scene was being preserved, at which point demolition had already begun.  

The court found that the Defendant was prejudice by the destruction of potential alternative cause evidence.  

While the court noted that there was no blanket rule that a Plaintiff must always preserve an entire fire scene, here, there were no exigent circumstances requiring any alteration of the scene, such as safety hazards.   The court therefore found that the fault on this issue largely lay with the Plaintiff for disturbing the fire scene without notice to the defense.  

The court found that dismissal was not appropriate as the prejudice to the Defendant was partially mitigated by photographs and preservation of some evidence from the scene.

As such, the court found that the Plaintiff’s partial failure to preserve evidence was punishable with an adverse inference instruction.  

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.  

Summary Judgment Denied in Water Park Accident Case

In the case of Deleon v. MHC Timothy Lake N. Ltd. Partnership, No. 8652 - CV - 2014 (C.P. Monroe Co. Nov. 29, 2017 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas denied a Defendant’s Motion for Summary Judgment in a case involving injuries allegedly sustained by a minor Plaintiff while riding down a water slide at the Defendant’s water park.   The court essentially found that genuine issues of material fact existed to allow the case to proceed to a jury.  

According to the Opinion, the Defendant operated a water park at which the Plaintiff visited with her family and friends.   The Plaintiff made several trips down a water slide.  On the last trip, the Plaintiff emerged with a forehead laceration.  

The Plaintiff’s Complaint alleged that the laceration was caused by a jagged edge on the water slide.  However, deposition testimony indicated that the injury may have occurred instead when the Plaintiff hit her head on the water slide.  

The Defendant moved for summary judgment, asserting that the Plaintiff admitted in discovery that the alleged jagged edge on the water slide did not exist.   In the alternative, the defense asserted that there was no evidence of actual or constructive knowledge on the part of the Defendant of the allegedly defective condition.   The Defendant also maintained that the Plaintiff’s claim under res ipsa loquitur was not substantiated, as injuries on water slides were common.

The court rejected the defense argument relative to the res ipsa loquitur argument by noting that there were genuine issues of fact to be considered by a jury.  

The court additionally found that the inconsistent allegations by the Plaintiff as to how the laceration occurred were not enough to warrant summary judgment as the factual determination in that regard should be left to the jury.  

The court also rejected the defense argument that summary judgment was warranted given that the slide had been formally inspected three (3) days prior to the Plaintiff’s alleged incident.    The court noted that, even if the Defendant had passed the inspection, that did not eliminate the possibility that the inspector had missed a defect or that some other condition had occurred between the inspection and the Plaintiff’s accident that could have caused the injury.   Again, since there were issues of fact in this regard, the court denied the Motion for Summary Judgment and allowed the case to proceed.  

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

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (Feb. 13, 2018).  

Judge Williamson Orders Production of Plaintiff's Instagram Log-In Information

In the case of Kelter v. Flanagan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018, Williamson, J.), the court granted a Defendant’s Motion to Compel a Plaintiff to provide the Defendant’s counsel with her Instagram account log-in information.   The Order further mandated that the Plaintiff would not remove or delete any content from that account.   Judge Williamson also ordered defense counsel not to share this information with any one not related to the case.  

According to the Opinion, this personal injury action arose out of a  motor vehicle accident.  

Following the deposition of the Plaintiff, the Defendant filed the subject Motion to Compel.   The defense believed that there would be relevant information on the Plaintiff’s Instagram social media account concerning the Plaintiff’s alleged injuries suffered in the accident. 

In his Opinion, Judge Williamson noted that the use of a party’s social networking account information and litigation are becoming more frequent, even though there is limited case authority on the issues presented.  

The court confirmed that, as has been held before in the Monroe County Court of Common Pleas and within other trial courts, social networking accounts can be discoverable if it appears likely that the accounts contain information that could be relevant.  

Judge Williamson noted that “[a]rguably, there does not even appear to be an expectation of privacy on social media as it relates to litigation because the account holder is sharing information with others in a public or quasi-public domain.”   See Op. at p. 2 [citations omitted].  

According to the Opinion, the Plaintiff initially testified at her deposition that she did not maintain any social media accounts. When confronted with proof to the contrary, the Plaintiff admitted that she maintained an Instagram account and asserted that she had misunderstood the question presented.  

Defense counsel then reviewed posts from the Plaintiff’s Instagram account from the time period shortly after the accident that were available for public access on the Plaintiff’s Instagram account.  According to the Opinion, those posts seem to indicate that the Plaintiff was engaged in vigorous physical activity both before and after the accident, such as references to shoveling snow and going to the gym.  

When the Plaintiff declined to provide any additional Instagram account information, the defense filed this Motion to Compel, which, as noted, the court granted.  


Anyone wishing to review this decision may click this LINK.