Friday, February 15, 2019

Forrest Gump Themed Civil Litigation Update CLE Set for Next Week in Monroe County


Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at dburdge@monroebar.org   to register.


The Lackawanna Bar Association presentation will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email kmcdonough@lackawannabar.org.

The Lackawanna County CLE Lunch & Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at dancummins@comcast.net or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.


 
 
Thank you to Joe Cardoni at Exhibit A for helping with
the technical aspects of the Powerpoint presentation.
 
 




Thank you to Network Deposition Services for assisting with
the playback of the Powerpoint presentation.


Thursday, February 14, 2019

Scope of Civil Liability Under the Mental Health Procedures Act

In the case of Leight v. Univ. of Pittsburgh Physicians, No. 2018 Pa. Super. 359 (Pa. Super. Dec. 31, 2018 Bender, P.J.E., Lazarus, J., and Musmanno, J.) (Op. by Musmanno, J.), the Plaintiffs appealed from a dismissal of their personal injury claims under the Mental Health Procedures Act against the University of Pittsburgh Medical Center and other physicians who had treated a mentally ill person that had injured the Plaintiff in a shooting incident.  

The Plaintiffs filed suit against the medical providers alleging a failure to warn and negligence of their treatment of the shooter.   The Plaintiffs alleged that, although the shooter had increasingly violent encounters and had been treated for both schizophrenia and medication non-compliance, the medical providers allegedly failed to file commitment papers and had, instead, terminated their relationship with that mentally ill patient.  
 The Defendants filed Preliminary Objections asserting that there was no duty to warn or to protect the Plaintiff from the shooter under the Mental Health Procedures Act.  

The Superior Court affirmed the trial court's dismissal of the claims based upon a ruling that the Mental Health Procedures Act did not apply to voluntary outpatient treatment.  

More specifically, the Superior Court noted that the physicians’ mere consideration, during voluntary outpatient treatment of a patient, of  possibly initiating an involuntary examination of a suspected mentally ill person was insufficient to trigger the scope and provisions of the Mental Health Procedures Act.  

The court further specified that a plain reading of the Act showed that it only applied to involuntary treatment and voluntary inpatient treatment of mental ill persons.   Accordingly, the court held that the cause of action provision of the Act did not apply to the voluntary outpatient treatment that the shooter had received from the physicians in this case.   

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

Source: “Digests of Recent Opinions.” Pennsylvania Law Weekly (Jan. 22, 2019).  
 

Wednesday, February 13, 2019

New Trial Granted in Post-Koken UIM Zero Verdict Case


In the Post-Koken case of Singer v. State Farm Mut. Ins. Co., No. 2015-CV-2859 (C.P.  Lacka. Co. Jan. 24, 2019 Gibbons, J.), the court addressed a Plaintiff's post-trial motion for a new trial after the entry of a zero verdict by the jury.

According to the Opinion, the Plaintiff had previously settled with the third party tortfeasor and this matter involved a jury trial on the Plaintiff's claims against the UIM carrier.  The Plaintiff asserted that the jury's verdict of $0 bore no rational relationship to the evidence produced at trial, and defied common sense and was shocking.

The court noted that liability was admitted in this rear end accident matter.  The court also noted that it was uncontested by both the Plaintiff's experts and the Defendant's experts that the Plaintiff had sustained a cervical sprain strain as a result of the accident.  The Plaintiff's experts additionally testified that this type of injury resulted in pain for the Plaintiff.  The Defense expert also agreed that this type of injury ordinarily takes six to twelve months to resolve.

The court reviewed other zero verdict cases and noted that under the law, a cervical sprain/strain injury is a type of objective injury that normally involves pain and suffering.  Without noting any of the other evidence that was presented at trial, the court in Singer concluded that, based on the experts' testimony, the jury had no reason to believe that [the Plaintiff] did not suffer pain.  The court also noted that there was no evidence that the Plaintiff had a pre-existing condition or injury prior to the accident which could have been a cause of his alleged pain.

As such, the court ruled that the jury's decision to disregard what the trial court judge viewed as the uncontested evidence of the Plaintiff's injury and to award zero damages for pain and suffering constituted, in the court's eyes a decision that bore no rational relationship to the evidence produced at trial.  Accordingly, the trial court judge found that the jury's verdict was contrary to the weight of the evidence.

The court therefore set aside the jury's verdict and awarded the Plaintiff a new trial.

Anyone wishing to review this Opinion may click this LINK.

Tuesday, February 12, 2019

Catch-all Allegations Stricken From Complaint in Monroe County

In the case of Delgado v. Whitestone Care Center, No. 6369-CV-2018 (C.P. Monroe Co. Dec. 12, 2018 Zulick, J.), the court sustained a Defendant’s Preliminary Objections regarding vague catchall language in a Plaintiff’s negligence Complaint arising out of a trip and fall matter.   However, the court overruled the Defendant’s separate Preliminary Objection pertaining to the Plaintiff’s inability to specifically name individual employees at the Defendant’s business relative to the vicarious liability claims.  

According to the Opinion, the Plaintiff was allegedly injured when she tripped and fell while visiting her mother at the facility operated by the Defendants.  

The Defendants initially objected to a catchall allegation by the Plaintiff that the conduct of the Defendants was “otherwise careless” and which was “presently unknown to Plaintiff but which may be learned through the discovery” process or at trial.  

Judge Arthur L. Zulick
Monroe County

Judge Zulick agreed with the Defendants that this particular language of the Plaintiff’s Amended Complaint was too vague and did not constitute a concise statement of material facts as required by the Pennsylvania Rules of Civil Procedure.   The language also found not to prevent a claim for relief. Moreover, the court stated that such language could also lead to late claims with insufficient notice for the Defendants to properly prepare the defense for trial.   As such, Judge Zulick struck these allegations from the Complaint.  

However, the court denied the Defendant’s separate Preliminary Objections relative to the Plaintiff’s vicarious liability claim.   The court rejected the Defendant’s objection that the Plaintiff did not identify or describe the alleged agents or employees who acts or omissions allegedly resulted in her injuries.  

Judge Zulick pointed to Pennsylvania case law involving unnamed employees or agent and noted that, simply because employees or agents were unnamed, or were referred to as a unit, did not preclude a claim against the employer if those unidentified individuals acted negligently during the course and scope of their employment.  

Judge Zulick otherwise stated that the identity of the agents or staff members who were working in a particular patient room on the date of the Plaintiff’s injury were known or ascertainable by the Defendants, or that such information could otherwise be obtained through the course of discovery.   Given that the allegations provided enough facts to enable the defense to prepare a proper answer and defense, the court denied this Preliminary Objection. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 15, 2019).  

Monday, February 11, 2019

COMPETITION IS HEATING UP - MOCK TRIAL JURORS NEEDED


High School Mock Trial Competition is upon us all across the Commonwealth of Pennsylvania.  Hoping you might consider serving as a Juror in the Competition in your County. 

Serving as a Juror can be a great learning experience and a rewarding endeavor for just a couple of hours of your time for a good cause.  Here is a LINK to my article extolling the benefits attorneys can realize from participating in the program for the benefit of high school students all across Pennsylvania.

Please consider checking in with your County Bar Association for more details on the Mock Trial Competition in your County.  Let's fill those Jury Boxes with attorneys willing to help give these students a great experience.

There are no CLE credits available for Mock Trial Competition participation yet, but I am helping a movement to work on that.  Here's a LINK to the Tort Talk blog post on the status of that movement.


Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on the following dates in Lackawanna County:


Trial Dates:

 
Makeup Round
Tuesday, February 12, 2019 at 6:00 p.m.

Semi-Finals
Wednesday, February 20, 2019 at 6:00 p.m.

Finals
Wednesday, February 27, 2019 at 6:00 p.m.

Please contact Ryan Campbell, Esq. at
hrlaw04@gmail.com
or
Katie Munley, Esq. at knealon@munley.com 



To Volunteer or for more information.

Pennsylvania Supreme Court To Review Case In Which Question of Presence of Trial Court Judges At Jury Selection is Implicated



Should a judge be present at jury selection?

Tort Talkers may recall the buzz caused by the Pennsylvania Superior Court's decision in the case of Trigg v. Children's Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), in which that Court noted that a trial court judge should sit in on, and preside over, jury selection, in order to be able to apply a certain standard of review on appeal.

As a status update on this case, it is noted that, in an Order handed down on January 23, 2019, the Pennsylvania Supreme Court recently granted allocatur on the appeal of this case.

In its one-page order granting allocatur, the Supreme Court agreed to hear argument on three issues:

“a. Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the ‘palpable error’ abuse of discretion standard of review and properly defer to the trial court?

b. Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?

c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?”

Anyone wishing to review the Supreme Court's Order may click this LINK.
 
It remains to be seen to what extent the Pennsylvania Supreme Court will comment on the presence of a trial court judge at jury selection.
Here's a LINK to the Tort Talk post on the Superior Court's decision in the Trigg case.  That post contains a Link to the actual decision by the Pennsylvania Superior Court.  The Superior Court was pretty strong in its suggestion that a trial court judge should be present for jury selection.
What do you think?

A Suit Against a Dead Person Can Be Killed by the Statute of Limitations



In the case of Murphey v. Krajewski, No. 18-CV-1541 (C.P. Lacka. Co. Jan. 25, 2019 Nealon, J.), the court granted preliminary objections and dismissed a Complaint that had been filed against a deceased defendant.

According to the Opinion, this personal injury matter arose out of a motor vehicle accident.  Unbeknownst to the Plaintiff or his counsel, the defendant tortfeasor passed away a few months after the accident.  Thereafter, the Plaintiff filed suit against the deceased tortfeasor defendant, still not realizing that he had passed away.  The Complaint was filed four days prior to the expiration of the statute of limitations.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon confirmed the well-settled rule of law that a lawsuit filed against a deceased person is a legal nullity and the filing of such a lawsuit does not serve to toll the statute of limitations.  The court noted that the Plaintiff never opened an estate for the decedent or had a personal representative appointed on behalf of the decedent's estate prior to filing suit.

The court also noted that, once a statute of limitations expires, a personal representative of the estate cannot be substituted as a party defendant because the claim is time barred.  As such, the preliminary objections of the defendant were sustained and the Complaint was dismissed.

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


In the case of Vasquez v. Estate of Mosier, No. 766-CV-2018 (C.P. Monroe Co. Nov. 30, 2018 Williamson, J.), the court addressed the identical issue pertaining to how to handle pleadings when a party Defendant died before the litigation was commenced. 

More specifically, this matter arose out of a motor vehicle accident and involved claims of personal injury by the Plaintiff against a Defendant driver.  That Defendant driver later passed away after the accident but before suit was commenced.  A personal representative was appointed as the estate of the deceased Defendant.

Thereafter, the Plaintiff filed a Writ of Summons four (4) days before the statute of limitations expired on the claims presented against the deceased Defendant driver.  

The court’s Management Order issued after suit was filed directed the Plaintiff to sue the personal representative of the decedent’s estate.  

In response, the Plaintiff filed a Petition for Substitution of Successor.   The Defendants filed objections to the Plaintiff’s Petition asserting that the Writ of Summons should be stricken for failure to designate a proper and legal entity as the Defendant.  

Plaintiffs countered with an argument that the substitution of the estate of the decedent in the place of the decedent was proper because the Defendant would not suffer any prejudice as the Plaintiff had properly preserved the action by timely filing a Writ of Summons.   The Plaintiff also asserted that the personal representative could not claim prejudice because he was aware of the litigation prior to the expiration of the statute of limitations.  

In the alternative, the Plaintiff argued that, because the Writ was timely issued before the statute of limitations, the Plaintiff had until February, 2020 to reissue or serve it on any Defendants under 20 Pa. C.S.A. §3383.

Judge David J. Williamson
Monroe County

Judge Williamson disagreed with the Plaintiff’s analysis and noted that an attempt at a substitution of a successor was improper in this case because the suit was brought against a deceased person which was a nullity under the law.   Such a nullity could not be amended or cured by simply substituting parties.  

The court also found that the Plaintiff clearly knew of the decedent’s death because the Plaintiff had named the estate as a Co-Defendant.   The court found that the Plaintiff could have easily obtained information about the personal representative from the County Register of Wills office.  Judge Williamson noted that the Plaintiff’s failure to originally include the personal representative as a party Defendant meant that the Plaintiff had sued non-existent entities.  

Accordingly, Judge Williamson ruled that he was unable to grant the Petition to Substitute a Successor because the court was required to treat the Summons as if it had never existed given that it was a legal nullity.   It was additionally noted that the Plaintiff was unable to file a Praecipe for New Writ of Summons given that the statute of limitations had expired.  As such, the claim was dismissed. 

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

Source: “Digests of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 22, 2019). 
 

Friday, February 8, 2019

Forrest Gump Themed CLE Presentations Coming Up


Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at dburdge@monroebar.org   to register.

The Lackawanna Bar Association presentation will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email kmcdonough@lackawannabar.org.

The Lackawanna County CLE Lunch &  Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at dancummins@comcast.net  or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.


 
 
Thank you to Joe Cardoni at Exhibit A for helping with
the technical aspects of the Powerpoint presentation.
 
 




Thank you to Network Deposition Services for assisting with
the playback of the Powerpoint presentation.


Wednesday, February 6, 2019

Good Faith Effort To Complete Faulty Service of Original Process Found By Court





In the case of Mandarano v. Plink, No. 18-CV-2099 (C.P. Lacka. Co. Jan. 8, 2019 Nealon, J.), the court addressed Lamp v. Heyman, service of process issues in a premises liability action. 

According to the Opinion, the Plaintiff commenced this premises liability action one day prior to the expiration of the two (2) year statute of limitations and served the President of the Defendant limited liability company with original process at its principal place of business on a timely basis under the Rules of Civil Procedure.  However, service was improperly completed by a private detective agency rather than the Sheriff as required by the Pennsylvania Rules of Civil Procedure 401, et seq.

After the Defendant company filed a Preliminary Objection asserting improper service of process and seeking a dismissal based upon the expiration of the statute of limitations, the Plaintiff reinstated the Complaint and had it timely served by the Sheriff upon that company’s President at the same principal place of business.   

The Defendant company asserted in its Preliminary Objections that this action was barred by the statute of limitations due to the Plaintiff’s alleged failure to make a good faith effort to effectuate proper service of original process.  

Judge Terrence R. Nealon
Lackawanna County
After reviewing the law of Lamp v. Heyman and its progeny, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that the record was devoid of any indication that the Plaintiff intentionally acted in a manner that was designed to stall the judicial machinery by delaying the proper service of process. The court also found that the Defendant company had not identified any prejudice that it allegedly suffered as a result of the Plaintiff’s defective service of original process previously by a detective instead of a Sheriff.

The court also noted that, since the Defendant company’s officer was furnished with timely notice of the filing of this suit, the purpose of the statute of limitations had been satisfied in this case.  

As such, the Preliminary Objections filed by the Defendant company seeking the dismissal based upon improper service of original process were overruled.  


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

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

Monday, February 4, 2019

MOCK TRIAL JURORS NEEDED FOR ADDITIONAL ROUNDS


High School Mock Trial Competition is upon us all across the Commonwealth of Pennsylvania.  Hoping you might consider serving as a Juror in the Competition in your County. 

Serving as a Juror can be a great learning experience and a rewarding endeavor for just a couple of hours of your time for a good cause.  Here is a LINK to my article extolling the benefits attorneys can realize from participating in the program for the benefit of high school students all across Pennsylvania.

Please consider checking in with your County Bar Association for more details on the Mock Trial Competition in your County.  Let's fill those Jury Boxes with attorneys willing to help give these students a great experience.

There are no CLE credits available for Mock Trial Competition participation yet, but I am helping a movement to work on that.  Here's a LINK to the Tort Talk blog post on the status of that movement.


Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on the following dates in Lackawanna County:


Trial Dates:

 
Round II
Wednesday, February 6, 2019 at 6:00 p.m.

Makeup Round
Tuesday, February 12, 2019 at 6:00 p.m.

Semi-Finals
Wednesday, February 20, 2019 at 6:00 p.m.

Finals
Wednesday, February 27, 2019 at 6:00 p.m.

Please contact Ryan Campbell, Esq. at
hrlaw04@gmail.com
or
Katie Munley, Esq. at knealon@munley.com 



To Volunteer or for more information.

Court Addresses Apportionment of Costs of Expert Depositions in Federal Court Civil Litigation Matter

In the case of Hunter v. Kennedy, No. 3:17-cv-00007 (M.D. Pa. Dec. 4, 2018 Saporito, Mag. J.), the court addressed discovery disputes involving the apportionment of expert witness fees in a medical malpractice matter. 

According to the Opinion, the case arose out of an incident during which Plaintiff fell from a ladder and injured her left ankle which was allegedly followed by negligent medical care by her healthcare providers. 

During the course of discovery, the parties completed some depositions of expert witnesses and a dispute arose between the parties over the allocation of expert witness fees.

The Defendants filed a Joint Motion for the Apportionment of the Expert Deposition Costs.   More particularly, the issues involved whether the Plaintiff’s treating physician, a podiatrist, was also to be treated as an expert witness, and what, if any, apportionment of her deposition fees should be made amongst the parties.   A secondary issue was whether the deposition fees for the remaining expert witnesses should be apportioned.

Relative to the deposition fees requested by the Plaintiff’s treating podiatrist, the court noted that the Plaintiff had previously designated that doctor as an expert witness by correspondence to all parties in the matter.   The Plaintiff also produced two (2) reports prepared by that doctor.  

In this matter, the court was being asked to decide whether the Plaintiff’s treating podiatrist was deposed as an expert witness or a fact witness and, if the deposition was of the doctor as an expert witness, whether the Defendants were obligated to pay that doctor a reasonable expert witness fee or the statutory witness fee under Federal Rules.  

The Defendants were arguing that, as a treating doctor, the witness was a fact witness rather than an expert witness and that they we were only obligated to pay the statutory $40.00 witness fee under the Federal Rules.    The Defendants argued that the two (2) one (1) page reports issued by this doctor did not satisfy the extensive report requirements relative to expert witness reports under the Federal Rules.  Judge Saporito noted that the Federal Rules of Evidence do not distinguish between lay and expert witnesses, but “rather between expert and lay testimony.”   See Op. at p. 3.

Judge Joseph F. Saporito, Jr.
M.D.Pa.

 
Federal Magistrate Judge Saporito noted that, under Third Circuit precedent, treating physicians may testify as lay witnesses regarding diagnoses and treatment under some circumstances.  However, the testimony of treating physicians on prognosis and causation will inherently be based upon scientific, technical, or specialized knowledge within the scope of Rule 702 of the Federal Rules of Evidence pertaining to expert testimony.   Accordingly, the court noted that, to the extent a party intends to offer the testimony of a treating physician on issues of prognosis or causation, that party is required to disclose the treating physician as an expert witness under Rule 26(a)(2)(A).  

The court noted that a treating physician is typically treated as a “non-retained” expert subject to less strenuous disclosure requirements as compared to experts specifically retained to testify in a litigation.  

To determine whether a party retained or specially employed a treating physician to supply expert testimony, the relevant test is “whether the treating physician acquired his opinion as to the cause of the Plaintiff’s injuries directly through his treatment of the Plaintiff.”  See Op. at 6.  

Applying the law to the case before him, Magistrate Judge Saporito, found that the Plaintiffs satisfied their disclosure requirements under Federal Rule 26 relative to the treating doctor as a non-retained expert witness.   The judge also ruled that it was clear that the opinions that the treating doctor was expected to offer, as evidenced in her reports, included opinions regarding prognosis and causation which opinions were acquired directly through the doctor’s treatment of the Plaintiff.   Consequently, the court found that the treating doctor had been properly identified as a witness whom that the Plaintiffs intended to use and present expert evidence at trial and that the Plaintiffs had satisfied their disclosure obligation under Rule 26(a)(2)(C).  

Judge Saporito also confirmed that the Federal Rules provide that a party may depose any person who has been identified as an expert whose opinions may be presented at trial.   The rules further provide that, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.   The court noted that the Defendants in this matter availed themselves of the Federal Rules in taking the deposition of the treating doctor and had proffered no reason why manifest injustice would be result from requiring them to pay the doctor a reasonable fee for her time spent being deposed.

The court went on to determine that the doctor’s fee request was reasonable. The fee request was $2,500.00 for the first two (2) hours and $750.00 for each additional hour.  

While the court agreed that the fee schedule noted by the doctor was reasonable, the court did not find it reasonable for the doctor to charge the amounts she charged to attend two (2) separate deposition dates as the second deposition date was effectively a continuation of the same deposition that had been adjourned on the first day due to the late hour of the deposition, the late production of medical records, and the difficulty among the parties and the witness in scheduling the second day of the deposition.  

As such, the court directed that the Defendants, as the deposing parties, were responsible for the payment of the doctor’s reasonable expert fee at an amount slightly less than what the doctor was claiming for the two (2) dates. 

As to the second issue regarding the apportionment of fees charged by the other experts in the matter, the court ruled that the method set forth in Rule 26(b)(4)(E) be followed.  Under that Rule, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for the time spent responding to the discovery.  

In so ruling, the court rejected the Defendants’ request that the obligation to pay expert fees for depositions be apportioned between the parties based on their respective percentage of time each side spent examining the expert at the deposition.  
Anyone wishing to review a copy of this decision by the United States Magistrate Judge Joseph F. Saporito, Jr. may click this LINK

I send thanks to Attorney Thomas Foley, Jr. of the Foley Law Firm in Scranton, Pennsylvania for bringing this decision to my attention.