Superior Court Affirms Order Compelling Discovery of Notes of Interviews Where No Attorneys Were Involved in the Interviews

In the case of King v. Kappa Sigma Fraternity, No. 55 MDA 2024 (Pa. Super. Jan. 13, 2025 Stabile, J., Olson, J., and Stevens, P.J.) (Op. by Stabile, J.), the court affirmed a trial court’s entry of an Order granting a Motion to Compel in this interlocutory appeal on a discovery issue involving the attorney work product privilege and attorney-client privilege.

This case arose out of alleged hazing incidents that allegedly resulted in harm to the Plaintiff.

In its decision, the Pennsylvania Superior Court addressed whether handwritten witness interview notes were properly compelled to be produced by a Defendant sorority.  According to the Opinion, the notes were factual summaries of statements made by the persons interviewed by representatives of the sorority.

The court reaffirmed the well-settled rule that a party asserting a privilege in support of a refusal to produce discovery bears the burden of establishing the validity of the assertion of that privilege.

Here, the court found that the interview notes were not created by or at the request of an attorney, but rather, were written by the Defendant fraternity’s officers. The court confirmed that the record lacked any evidence of an attorney’s role in the creation of the notes of the interviews.

Moreover, nothing established that the notes were prepared at counsel’s direction.

The court also noted that the attendance of non-legal officers of the fraternity at the interviews additionally precluded the privilege from applying.

The court also noted that the notes did not reflect any legal advice being provided. Nor were the persons interviewed, who were fraternity members, informing their attorneys of anything during the course of the interviews.

As such, the appellate court affirmed the trial court’s entry of an Order compelling the production of the notes of interviews in question.

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

Pennsylvania Superior Court Reviews Discovery Issues Involving Attorney-Client Privilege and Work Product Doctrine

In the case of Holland v. The Physical Therapy Inst., No. 1515 WDA 2021 (Pa. Super. March 17, 2023 Olson, J., Dubow, J., and Collins, J.), (Op. by Collins, J.) [non-precedential], the court addressed several discovery issues and the issue of whether an appeal from a discovery order is appropriate.

With regard to the ability of a party to appeal from a discovery order, the court noted that, generally, discovery orders are deemed interlocutory and are not immediately appealable, because they do not serve to dispose of the litigation in its entirety. 

Yet, discovery orders that require the disclosure of privilege materials are generally found to be appealable under Pa. R.A.P. 313 where the issue of privilege is separable from the underlying issues presented.

Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.

On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.

The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.

In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.

The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.

The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.

The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).

"Psychological Autopsy" Report Related to Inmate Suicide Ruled Discoverable In Case Against Prison

In the case of Williams v. The GEO Group, Inc., No. 396 E.D.A. 2021 (Pa. Super. Aug. 24, 2022 Dubow, J., McLaughlin, J., and King, J.) (Op. by McLaughlin, J.), the court affirmed the trial court’s granting of a Plaintiff’s Motion to Compel discovery of a “psychological autopsy” report that the Defendant prepared after a prison inmate’s suicide.

This case arose out of the Plaintiff's decedent's suicide while an inmate in a private prison owned by the Defendant.    

In discovery, the Defendant had provided the Plaintiff with all requested documentation except a report called a "psychological autopsy."  The Defendant claimed that the document was protected as being privileged as a peer review document, as a work product document, and due to the attorney-client privilege.

The court found that this report was not privileged under the Peer Review Act.

The court additionally found that the report was not privileged under the scope of Pa. R.C.P. 4003.5 and was relevant under Pa. R.C.P. 4003.1.  As such, the appellate court affirmed the trial court's granting of a motion to compel the production of the report at issue.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 15, 2022).

Source of image:  Photo by Rodnae Productions on www.pexels.com.

Pennsylvania Superior Court Addresses Attorney-Client Privilege and Attorney Work Product Privilege

In the case of Carlino E. Brandywine, L.P. v. Brandywine Vill. Assoc., No. 1194 EDA 2019 (Pa. Super. July 23, 2021 Stabile, J., McLaughlin, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court vacated a trial court’s decision in a land dispute matter and remanded a case for further proceedings, after ruling that, where Defendants raise the affirmative defenses of reliance upon advice of counsel and counsel’s good faith reliance upon applicable law, the Defendants opened the door to a waiver of the attorney-client and the work product privileges.

However, the Pennsylvania Superior Court limited the trial court’s decision in this matter by finding that the trial court erred in finding a blanket privilege waiver and in assuming that a waiver of the attorney-client privilege would also necessarily waive the attorney work product protection.

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


Source: “Digest of Regional Opinion” Pennsylvania Law Weekly (August 17, 2021).

Pennsylvania Superior Court Quashes Appeal on Discovery Dispute Over Claim of Privilege as Premature

In the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super. June 25, 2021)(en banc), the court addressed discovery issues in terms of whether a trial court impermissibly ordered the production of claims file materials from the carrier to the court for an in camera inspection where the carrier was asserting that the materials at issue were protected by the attorney-client privilege and the work product doctrine.

Following a review of the matter, the court ended up quashing the appeal on the basis of the Collateral Order Rule.

This Opinion contains a nice summary of the current status of the Collateral Order Rule in Pennsylvania.

With respect to this particular case, the court noted that, when a discovery request has been made that, on its face, seeks protected materials, and the responding party clearly sets forth facts that leave no doubt as to the applicability of any privilege, an in camera review is not permitted and doing so would violate the privilege.

Where, however, a discovery request is made and the assertion of a privilege by the responding party and/or the proofs offered by the requesting party render a trial court unable to determine and issue a privilege, an in camera examination is appropriate and fully supported by the case law.

The Superior Court noted that this approach strikes an appropriate balance between preserving privilege and protecting a requesting party’s right to discoverable material.

In this matter, the court concluded that the discovery requests made, and the responding party’s responses and objections made thereto, did not provide the trial court with enough information to decide whether any of the requested documents were indeed subjected to a privilege. As such, the Superior Court ruled that the trial court had appropriately ordered an in camera inspection of the documents.

The court emphasized in its opinion that the issue before it involved a trial court Order directing a party to produce documents for an in-camera review and not any Order requiring the production of documents to the party that requested the discovery. It was emphasized that, since it was concluded in this matter that an in camera inspection is appropriate, the responding party had not lost its right to further contest the order production of any claim materials if so ordered by the trial court after the in camera inspection is completed, but before production of the opposing party. In other words, the Superior Court confirmed that, if the trial court ordered the production of the documents after the in camera review the documents, the responding party still retained the right to attempt to appeal that decision.

For full disclosure purposes, I note that I wrote the Amicus Curiae Brief on behalf of the Pennsylvania Defense Institute in this matter.

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

Participated in First Ever Virtual/Online En Banc Pennsylvania Superior Court Argument Session

On June 3, 2020, I participated in Pennsylvania Superior Court history by attending the first ever virtual/online en banc argument session for this Court.

The case was Fisher v. Erie Insurance, which involved a request for the appellate court to review an order of the trial court calling for the completion of an in camera review of documents created by Erie's counsel while assisting the carrier in the investigation and evaluation of a UIM claim.  Erie had objected to the request for the production of the documents by asserting the attorney-client privilege and the privilege afforded by the attorney work product doctrine.

I drafted the amicus curiae brief submitted on behalf of the Pennsylvania Defense Institute.  Here is a LINK to the amicus curiae Brief I wrote on behalf of Erie Insurance. 

Erie Insurance is being represented in the underlying matter by the Pittsburgh law firm of Robb, Leonard, Mulvihill, LLP, and the appellate argument for Erie Insurance was handled by Attorney Lou Long of the Pittsburgh office of Thomas, Thomas & Hafer. 

The Plaintiffs were represented by Attorney Joseph J. Nypaver of Holidaysburg, PA. 

The en banc court took the matter under advisement.

Superior Rejects Trial Court's Allowance of Provisional 'Attorneys' Eyes Only" Review of Privileged Documents in Discovery

In the business dispute civil litigation case of CLL Academy Inc. v. Academy House Council et al., No. 446 EDA 2019 (Pa. Super. April 6, 2020 Bowes, J. Olson, J., Ford Elliott, P. J.E.)(Op. by Bowes, J.), the court issued a decision that, as precedent, serves to bar trial judges from allowing opposing counsel to view potentially privileged documents when holding hearings to determine if those materials should be released when sought in discovery.

The Superior Court's decision overruled a Philadelphia County trial judge's order that a defendant be required to provide a plaintiff with documents to review on a provisional "attorneys' eyes only" basis as the two sides hammered out a dispute over whether or not the material was shielded by work product protections.

The Superior Court ruled that such a designation would be incompatible with Pennsylvania civil procedure and law regarding the attorney-client privilege and work product protections.

The Superior Court found the 'attorneys' eyes only' procedure allowed by the trial court "to be wholly inconsistent with the in camera review sanctioned by our rules of civil procedure for evaluating claims of privilege."

Anyone wishing to review this decision may click this LINK.

Notes Written by Defendant in Med Mal Case in Anticipation for Deposition Not Protected From Disclosure

In the case of Ford-Bey v. Professional Anesthesia Services of M.A., LLC, 2020 Pa. Super. 42 (Pa. Super. Feb. 20, 2020 Bowes, J., Olson, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the court granted a Plaintiff’s Motion to Compel the disclosure of notes written by a medical personnel defendant on a relevant medical chart in a medical malpractice matter.

The court noted that annotations made on a relevant medical chart by the Defendant at the suggestion of his attorney did not amount to any privileged or confidential information. 

The court reiterated the rule of law that the party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches.

The court found that the privilege did not attach here where the notes by the client were not made for the defense attorney’s use and were not even shown to the attorney. As such, the court found that these notes were not communications between a client and that person‘s attorney that could be deemed to be privileged. 

The court also rejected any notion that the notes made by the Defendant were protected by the attorney work product doctrine.  The court ruled in this fashion given that the only mental impressions contained in the notes were those of the Defendant himself.   The court ruled that mental impressions of a client are not automatically protected from disclosure under the attorney work product doctrine. 

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

ARTICLE: YEAR-END REVIEW: ANOTHER YEAR OF NOTABLE DECISIONS IN Pa.

This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission.  Images have been added here that were not in the original article.

My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.

Year-End Review: Another Year of Notable Decisions in Pa.

By Daniel E. Cummins | January 02, 2020 at 10:24 AM

A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.

Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine. 

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.

Premises Liability

Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing. 

In the case of Rosatti v. McKinney Properties, No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a defendant landowner under the Hills and Ridges Doctrine. 

According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.

In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and emphasized that, under the prevailing case law, “a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.” The court additionally noted that “a property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls. As such, summary judgment was granted.

In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and held that a defendant landowner was not liable for alleged injuries suffered by a plaintiff in a slip and fall event that occurred during an active storm since the defendant had no obligation under Pennsylvania law to correct the conditions until a reasonable time after the storm ended. 

Service of Process

In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.

The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, the Pennsylvania Superior Court ruled that a trial court erred in dismissing the plaintiff’s personal injury action against a defendant motorist for improper service. 

The central issue in the matter involved the Plaintiff properly serving an out-of-state defendant by way of a certified letter, return receipt requested. According to the opinion, the green return receipt card was lost by the U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced was a scanned signature of the person who accepted the letter. There was also additional evidence presented that the defendant driver, who was a cousin of the plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.

Bad Faith

Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.

One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint. 

Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure. 

Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer. 

As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.

For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action

In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted. 

Fraternities

Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.

In Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed preliminary objections filed by Gettysburg College seeking the dismissal of a plaintiff’s personal injury claim arising out of allegations that the plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus. 

The court dismissed the plaintiff’s complaint against the college based upon the case of Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990), in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests. As such, under that case, a college was found not to have any duties in loco parentis with respect to its students. 

A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part. 

Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.

In this regard, Judge Matthew Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving defendants who were under the age of 21. Under the Kapres case, the Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol. The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

Products Liability

In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019), the Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the plaintiff only litigated the case under the consumer expectation test. 

The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.

Medical Malpractice

Typically, a medical malpractice action is governed by a two-year statute of limitation. However, there may be some cases where a plaintiff does not discover an injury that is allegedly the result of medical negligence within that two-year period. Under the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.

In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2018), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE’s statute of repose was unconstitutional.

The rationale of the majority opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution’s guarantee of open access to the courts.

Medical Marijuana

With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.

In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no employer may discharge … or otherwise discriminate or retaliate against an employee … solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers due to the employee’s prescribed use of medical marijuana while not working in her place of employment.

The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that had violated the MMA. As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon Section 2103(b)(1).

It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.

Looking Ahead

The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.

Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.



Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters.  He also provides mediation services through Cummins Mediation Services.

Amicus Curiae Brief on Behalf of the PDI in Support of the Attorney Client Privilege and the Attorney Work Product Privilege

Here is a LINK to the amicus curiae Brief I wrote at the request of the Pennsylvania Defense Institute in favor of the position put forth by the Appellant, The Erie Insurance Exchange, in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super.).

By way of background, this case involves claims of a UIM breach of contract and bad faith arising out of a motor vehicle accident matter.  Notably, the carrier did not assert advice of counsel as a defense to the bad faith claims.

During the course of discovery, the Plaintiff served Requests for Production upon the carrier, one of which Requests demanded the production of a "complete copy of all documentation reflecting any investigation, evaluation and/or valuation of Plaintiffs' claims for underinsured motorist coverage authored, prepared by or obtained [the carrier's defense counsel and/or the defense firm]."

The trial court judge in Blair County ruled for an in camera inspection of the defense attorney's file with respect to the Request for Production at issue.  In response, the carrier objected, citing to the attorney-client privilege and the attorney work product privilege, and this appeal followed.

The amicus curiae Brief argues that, above and beyond the particulars of the narrow discovery dispute presented in this specific case, to allow for any inspection of the defense attorney's file would violate the protections afforded by the attorney-client privilege which has existed for over 300 years in Pennsylvania as well as the attorney work product doctrine. 

It was also asserted in the Brief that, if an inspection of a defense counsel's file is permitted, the danger then exists with such a precedent that these bedrock privileges long recognized in the law could be eroded to the extent that the files of all attorneys could become subject to inspection by opposing counsel.

It was additionally argued in the Brief that, practically speaking, if a judge conducts an in camera inspection of an attorney's file and rules that the contents of the same were not discoverable, then that judge could be disqualified from entering any further rulings in the case given that that judge had viewed non-discoverable information that could color or taint his or her analysis of future issues in the matter.  This is particularly so in a bad faith action which proceeds to a bench trial after the completion of discovery in Pennsylvania state courts.

The parties await an argument date from the en banc Pennsylvania Superior Court on the appeal presented.  I send thanks to the Pennsylvania Defense Institute for the opportunity to assist in this case.

Pennsylvania Superior Court Addresses Scope of Attorney-Client Privilege

In the case of Newsuan v. Republic Services, Inc.,  No. 1248 EDA 2018 (Pa. Super. June 20, 2019 Olson, J., Dubow, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.)(Olson, J., Concurring), the Pennsylvania Superior Court reversed and remanded a trial court's decision to grant a plaintiff's motion to compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.

The lower court opinions in this case are summarized in prior Tort Talk posts that can be viewed HERE.

According to the lower court's Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.

The trial court had ruled, in part, that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

The trial court also offered in a Rule 1925 Opinion that the appeal had no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.

The Pennsylvania Superior Court initially ruled that the issues pertaining to the attorney-client privilege were appealable under the collateral order doctrine.

The Superior Court went onto review the rules surrounding the attorney-client privilege and ruled that the witness statements at issue did fall within the privilege.  As such the lower court's ruling was reversed.

Anyone wishing to review the Court's decision in this matter may click this LINK.

I send thanks to Attorney Matthew J. McColgan of the Philadelphia office of German, Gallagher & Murtaugh for bringing this decision to my attention.

Pennsylvania Supreme Court Clarifies Standard for Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)(Op. by Mundy, J.) (Donohue, J., Concurring)(Wecht, J., Concurring), the Pennsylvania Supreme Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis.

Anyone wishing to review the Opinion by Justice Mundy may click this  LINK.  Click HERE to read Justice Donohue's Concurring Opinion.  Click HERE to read Justice Wecht's Concurring Opinion.

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

Discoverability of Claims File Info in First Party Wage Loss Litigation

In the case of Neidich v. Progressive Advanced Ins. Co., No. 17-5375 (E.D. Pa. Aug. 22, 2018 Padova, J.), the court granted, in part, a Plaintiff’s Motion to Compel production of certain entries from the Defendant’s carrier’s claim file that the Defendant had maintained were protected by the attorney work product doctrine.    This case arose out of an automobile accident claim pertaining to a first party wage loss dispute.  

During the course of discovery, the Defendant carrier refused to produce certain materials from its insurance claims file, asserting that the materials were protected by the attorney work product doctrine.   In particular, at issue in this case were the mental impressions and opinions of the claims representative and the carrier’s reserve information.   The court was provided redacted and unredacted copies of the claims file, along with a privilege log, for an in-camera review of the file.  

The court reviewed the parameters of the work product doctrine as set forth under F. R.C.P. 26(b)(3).   Noted that the “temporal trigger for work product protection in this context is the ‘point in its investigation [when] an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation’.”   See Op. at 3 [citations omitted].  

The court more specifically stated that the party asserting work product protection must demonstrate that it subjectively anticipated litigation, and that the anticipation was objectively reasonable. Id. [citations omitted].  

One issue in this case was point at which it could be considered that the carrier reasonably anticipated litigation.   

In this matter, the carrier stated that it reasonably anticipated litigation when Plaintiff’s counsel contacted the carrier seeking “to discuss and avoid litigation.”   The carrier asserted that the disputed entries in the claims file made after that event should be protected by the work product privilege.  

However, the court in this matter stated that, a lawyer’s mere suggestion of a lawsuit is not enough to make a carrier reasonably anticipate litigation when the carrier’s evaluation of the claims is ongoing.   The court pointed to a case indicating that an insured’s attorney’s threat to file suit did not serve as the trigger for the work product doctrine.  As such, this argument by the carrier was rejected by this court.  

The carrier also argued, in the alternative, that the court should, at a minimum, extend a work product protection to the carrier’s reserve information.   The court in this matter rejected the carrier’s contention that reserves are to be treated as work product on a per se basis.   Accordingly, the court rejected the carrier’s argument that insurance reserves are always prepared in anticipation of litigation and are therefore always  protected as work product.

In this matter, the court ultimately concluded that the carrier had failed to provide relative factual support for its position that the disputed materials concerning reserve information in this particular case were prepared in anticipation of litigation.  As such, the Plaintiff’s Motion to Compel was granted. 

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 Lee Applebaum of the Philadelphia, Pennsylvania law office of Fineman, Krekstein & Harris and writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this case to my attention.   

Superior Court Holds That Notes Created by Investigator Retained by Attorney Are Not Protected From Discovery

In its recent decision in the case of McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017 (Pa. Super. June 7, 2018 Panella, J., Olson, J., and Stevens, P.J.E.) (Op. by Panella, J.),  the Pennsylvania Superior Court addressed the following two discovery issues:

1.         Are notes and memoranda of witness interviews by a private investigator, acting at the express direction of defense counsel, protected by the attorney work-product doctrine, as defined in Pennsylvania Rules of Civil Procedure  No. 4003.3, to the same extent as if the interviews were conducted by counsel, and

2.         Whether the defense should be estopped from relying upon the attorney work-product doctrine because it pursued disclosure of the identical materials from the claimant’s attorney. 

Pennsylvania Superior Court ultimately ruled that, when an investigator is hired expressly by the attorney of the Defendant, then the investigator’s notes of witness interviews are not privileged or protected from discovery even though the investigator was acting at the express direction of the attorney.   In its decision, the court noted that Pa.R.C.P. 4003.3 sets different restrictions in terms of production of material prepared by a party’s attorney as compared to material prepared by a party’s representative.   The court noted that there is a higher bar of protection in relation to the discovery of the work product of an attorney.  

In contrast, as to materials produced by any other representative of a party, Rule 4003.3 only prohibits the disclosure of the representative’s mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.  

Here, the court found that the work product doctrine under Pennsylvania Rules of Civil Procedure  4003.3 could not be used to preclude the disclosure of notes and summaries written by an investigator as opposed to by the party’s attorney.   The court rejected the notion that the notes and memoranda completed by a private investigator acting at the expressed direction of counsel, are protected by the attorney work product doctrine to the same extent as if the documents were drafted by counsel.   The court stated that to accept such an argument would be an impermissible expansion of the language of Pa.R.C.P. 4003.3.  

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

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh law firm of Thomas, Thomas & Hafer for bringing this case to my attention.

Pennsylvania Supreme Court to Address Attorney-Client Privilege/Attorney Work Product Doctrine Issues

On January 30, 2018, the Pennsylvania Supreme Court issued a per curiam Order agreeing to hear the appeal on the case of BouSamra v. Excela Health, No. 318 WAL 2017 (Pa. Jan. 30, 2018), to hear argument on the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm serves to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

Anyone wishing to review a copy of the Pennsylvania Supreme Court's Order granting the appeal may click this LINK.

Source:  “Justices to Eye Discoverability of Emails Between Hospital Counsel and PR Firm” by Max Mitchell of The Legal Intelligencer (Feb. 1, 2018).   


UPDATE:  Click HERE for the Tort Talk post summarizing the Pennsylvania Supreme Court's decision in this case outlining a new standard for the attorney work product doctrine.

The 2017 TORT TALK TOP TEN

Here is the annual 2017 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:

1.         Elements of a Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington Nat'l Ins. Co., 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.

The Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of (1) that the carrier did not have a reasonable basis for denying benefits under the policy, and (2) that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to confirm 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. 

The Majority Opinion written by Justice Baer can be reviewed HERE.

Chief Justice Saylor's Concurring Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

2.         Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), which arose out of a motor vehicle v. pedestrian accident matter, 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 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.

The Court's Majority Opinion, Concurring Opinion, and Dissenting Opinion can be viewed at this LINK.

3.         Attorney-Client Privilege

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 surrounding 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.

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

4.         Use of Powerpoint at Trial

In the case of W.C. v. Janssen Pharmaceuticals, Inc., 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.  

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

5.         Dead Man’s Rule

The Pennsylvania Superior Court’s 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.   

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

6.         Statute of Limitations for a UM Arbitration Case

In the case of Bristol v. Erie, No. 124 MAP 2016 (Pa. Nov. 22, 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting) the Pennsylvania Supreme Court held that the statute of limitations in an uninsured motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate.

 This was a 6-1 decision with Justice David Wecht dissenting on procedural grounds.

The Court delineated the specific issue before it as involving the question of when the statute of limitations begins to runs for a court action in an uninsured (UM) motorist claim arising out of an automobile insurance policy containing an arbitration agreement. 

The Pennsylvania Supreme Court noted that this was an issue of first impression in its Court.

The Bristol decision reverses the Pennsylvania Superior Court's previous ruling in Hopkins v. Erie, which held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

In its analysis, the Pennsylvania Supreme Court noted that the mandates of Pennsylvania statute of limitations law provide that the statute of limitations begins to run from the time a cause of action accrues or arises. 

The Supreme Court noted that a cause of action in a UM context accrues or arises when a carrier is alleged to have breached its contract of insurance.  The Court more specifically held that an uninsured motorist (UM) claim begins when a carrier denies the claim or refuses to arbitrate.

Given that the carrier had not denied coverage or refused to arbitrate in this particular case, the court ruled that the lower courts had erred in granting summary judgment in favor of the carrier on its statute of limitations argument.

The Majority Opinion from Bristol can be read HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

7.         Cell Phone Use in a Motor Vehicle Accident

Another recurring issue in civil litigation matters that continued over the past year is the extent to which cell phone 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.

Anyone wishing to review this decision may click this LINK.

In the Federal Court case  of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), the court held that evidence of a plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible at trial.

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

8.         Limited Tort

In its latest review of limited tort law 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 Pennsylvania Superior 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 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.  

The court in Vetter more specifically 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.

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

9.         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. 

Unfortunately, in 2014, the Pennsylvania Supreme Court inexplicably denied allocatur in Stepanovich, thereby squandering a great opportunity to provide the bench and the bar with much needed guidance on important Post-Koken issues.

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

Please check out the Tort Talk Post-Koken Scorecard at this LINK to review the cases in this regard.

10.       Jury Instructions in Post-Tincher Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.

These suggested jury instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.


The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.

Pennsylvania Superior Court's Latest Take on the Attorney Work Product Doctrine

In the case of Estate of Paterno v. NCAA, 2017 Pa. Super. 247 (Pa. Super. July 25, 2017 Stabile, Panella, Dubow, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed the attorney work product doctrine.  

 

In a decision which affirmed in part and reversed in part the lower court’s decision, the appellate court ruled that the discovery of non-verbatim attorney notes and memoranda concerning interviews should not have been allowed by the lower court.  

 

The Superior Court noted that such items, including attorney summaries, are totally protected by the attorney work product privilege.   The court more specifically stated that the attorney work product is protected as long as the items involve attorney conclusions and mental impressions, whether or not such paperwork was prepared in anticipation of litigation.

 

In its decision, the court also noted that the protections of the attorney work product doctrine are broader under state law then federal law in this respect. 

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

 

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

 

PA Superior Court Finds Attorney Client Privilege Waived With Regards to Communications With Outside Public Relations Firm

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 235 (Pa. Super. July 19, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the trial court's ruling that a defendant corporation waived the attorney-client privilege by forwarding attorney correspondence to an outside public relations firm since 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.  

Anyone wishing to review this decision may click this LINK.

Source: "Digest of Recent Opinions." Pennsylvania Law Weekly (August 22, 2017).

For a review of a prior decision by the Pennsylvania Superior Court in the same case on the same issue click this LINK to go to that Tort Talk post.