Tuesday, April 21, 2020

Judge Minora of Lackawanna County Addresses Several Notable Discovery Issues Including Permissible Scope of Vocational Assessment

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. Nov. 14, 2019 Minora, J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed several notable discovery issues arising out of a motor vehicle accident matter.

On one issue, the Plaintiff sought sanctions against the Defendant due to the Defendant’s failure to provide full and complete discovery responses following a previous Motion to Compel Order issued by the court.

According to the Opinion, the defense counsel noted that he had informally responded to the discovery requests at issue following the entry of that Order and asserted that the Plaintiff’s Motion for Sanctions filed on the basis that formal supplemental responses were not provided was, in essence, exalting form over substance.

While the court appreciated defense counsel’s position, the court nevertheless determined that the Defendant should have filed formal responses to the written discovery requests at issue after an Order to compel had been entered by the Court. However, Judge Minora chose not to impose sanctions as to the court found the failure to comply formally with the directive of the Court under the circumstances presented in this case which confirmed that the lack of compliance by defense counsel was unintentional in nature and not designed to be an affront to the Court. The defense was directed to provide formal supplemental discovery responses.

In this decision, the court also addressed the proper parameters of a vocational evaluation of the Plaintiff sought by the Defendants.

According to the Opinion, the Plaintiffs objected to the proposed length of the evaluation, which was to include an interview followed by standardize testing, all of which would take approximately 4-5 hours in duration.

Plaintiff’s counsel also were seeking an Order compelling the evaluation to take place in either Lackawanna County or Luzerne County.

The Plaintiffs also sought to limit the type of questioning by the vocational expert and to prevent the expert from performing any type of psychological testing.

The Plaintiff also requested the right to have counsel or representative present during the entirety of the examination.

Judge Minora relied upon his own previous decision in the case of Dellavalle v. USAA, 2017-CV-4688 (C.P. Lacka. Co. 2019 Minora, J.), in which the court laid out a framework for a proper neuropsychological independent medical examination. The court found that the evaluation requested by the vocational expert in this matter was sufficiently analogous to the neuropsychological IME requested in the Dellavalle case so as to allow the court to rely upon that prior decision for guidance.

As he has ruled in previous matters,with respect to the location of the IME, Judge Minora noted that traveling any distance, especially where the physical condition of the commuter may be impaired, was an annoyance and possibly a burden. In this matter, the court found that the burden associated with traveling from northeastern Pennsylvania to Valley Forge, Pennsylvania for the vocational evaluation was  “unreasonable” so as to warrant the entry of a Protective Order under Pa. R.C.P. 4012.

The court ruled that the Defendants having chosen the vocational expert from out of the area as an expert should bear the reasonable expenses related thereto. The court also noted that the vocational expert could travel to Luzerne or Lackawanna County and find a place to complete the examination of the Plaintiff. The Court ordered the cooperation of the parties in this regard and ordered the defense to reimburse the Plaintiff for any reasonable costs that may be incurred by the Plaintiff as a result.

With regard to the conduct and duration of the IME, Judge Minora noted that he would “refrain from micromanaging at this stage of the proceedings [the vocational expert’s] customary evaluation processes.” See Op. at 6.

Judge Minora declined to limit in any significant manner the duration of the subject evaluation as he found nothing inherently unreasonable in the anticipated length of the proposed vocational assessment. However, the court was hesitant to allow the length of time to be open ended and, as such, ordered that the evaluation could not exceed 4 ½ hours in duration.

With regard to the presence of the Plaintiff’s attorney or representative during the vocational review, the court rejected the Plaintiff’s request to have a representative present during the entirety of the evaluation. Rather, the court ruled that under Rule 4010(a)(4)(i) allows the representative to be present only during the interview portion of the evaluation, but not during any part of the testing portion.

Lastly, the court denied the Plaintiff’s Motion to Designate the Defense Vocational Expert as a Professional Witness. The Plaintiff pursued this motion under the case of Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006).

Judge Minora found the Cooper case to be distinguishable and, therefore, dismissed the Plaintiff’s Motion as premature and as an improper attempt to seek from the court a declaratory judgment on the expert’s designation as a professional witness at this stage of the litigation. This decision was entered without prejudice to the Plaintiff’s right to properly present this issue to the trial judge via a Motion in Limine.

The court in this case distinguished Cooper on the grounds that, in the Cooper, case the Plaintiff had first served the written discovery seeking bias information from the expert after which the Defendants objected and the case became before that court by way of a Motion for a Protective Order. In this case, the Plaintiffs had not yet served any discovery requests upon the vocational expert or with respect to the vocational expert and was instead looking for the court to “green light their ability to do so.”

Judge Minora noted that, while such an inquiry by the Plaintiff of the vocational expert may, in the end, be proper, Judge Minora felt that it was not the role of the court to give the Plaintiffs permission to do so at that stage of the litigation.

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

Commentary:  Judge Minora's decision in this Barbarevich case highlights the difficulty presented by the Cooper v. Schoffstall case in that that case allows for certain additional discovery to be conducted with respect to the potential financial bias of an expert if it is established that the expert is a "professional witness" but the Court in Cooper did not provide any test or standards by which to make that determination.

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