Trial Court Provides Instruction on Scope of Ability of Deponent's Attorney To Properly Interject at a Deposition

In the case of Early Bird Carwash, Inc. v. Piermattei, No.  (C.P. Lyc. Co. Sept. 18, 2023 Linhardt, J.), the court granted in part and denied in part discovery motions filed by both parties in a legal malpractice action.

Of note, the court granted the Plaintiffs’ Motion to Reconvene a Deposition after defense counsel was found to have obdurately and acrimoniously interrupted Plaintiffs’ attorney’s initial attempt at a deposition by way of the defense counsel engaging in continual, repeated objections that were found to be meant to obstruct the course of the deposition.

The court noted that a deposition is meant to be a question-and-answer conversation between the deposing attorney and the witness.

With that in mind, the court noted that the deposing lawyer is entitled to pursue a chosen line of questioning without improper interjections by the witness’s attorney.

Judge Linhardt noted that an attorney for the deposition witness should not act as an intermediary by interpreting questions, deciding which questions the witness should answer, and/or by helping the witness to formulate answers.

In this matter, the court found that the attorney for the Defendants repeatedly and continuously interrupted the deposition testimony by interposing objections, instructing the witness not to answer questions, and otherwise providing commentary on the questions presented and the exhibits being utilized.

The court admonished that the defense attorney’s clear intent was to prevent Plaintiffs’ attorney from pursing his line of inquiry and the deposition from taking its natural course.

The court found that the conduct of defense counsel was obdurate but not necessarily acrimonious, and that defense counsel’s conduct ultimately prejudiced the Plaintiffs by repeatedly and unnecessarily interrupting the deposition.

Accordingly, the court directed that the Defendants submit to a repeat deposition. Defense counsel was ordered to bear the cost of the same. The court also ordered the Defendants should present one or more witnesses properly prepared to answer questions on the designated topics. Additionally, counsel for the Defendant was told to keep interjections to a minimum. The court did decline to issue an award of attorney’s fees as a sanction.

In another Order in this decision, the court ordered the Defendant to provide responses to the Plaintiffs’ requests for discovery of an electronic records, or to explain the unavailability of the associated electronic storage media.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 21, 2023).

Civil Litigant Permitted to Assert Fifth Amendment Right Against Self-Incrimination in a Personal Injury Case

In the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), the court issued a detailed Order denying a Plaintiff’s Motion to Compel and upholding a Defendant’s right to assert his Fifth Amendment privilege against self-incrimination.

According to the Order, this case involved a motor vehicle accident with possible allegations of driving under the influence. The Defendant driver had previously pled guilty to the charge of careless driving in connection with the accident.

The Plaintiff asserted that, as such, the Defendant driver could not face any further criminal charges.

In response, the Defendant driver asserted that it was certainly possible for him to face additional criminal charges related to the accident based upon any newly discovered or disclosed evidence that could come out during the course of discovery during this civil litigation matter.

In ruling on the Motion, the court noted that the statute governing when a subsequent prosecution is barred by a former prosecution for a different offense, contains certain exceptions.  One exception was when the offense of which the Defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense.

Given this set of facts, the court applied the applicable standard of review and noted that it was not “perfectly clear” that the Defendant driver would not possibly face additional criminal charges related to the accident based upon his provision of information in discovery. 

As such, the court found that the Defendant driver’s assertion of the Fifth Amendment right against self-incrimination was reasonable. Therefore, the court denied the Plaintiff’s Motion to Compel the Defendant driver to respond to certain discovery requests.

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

Source of image:  Photo by Anthony Garand on www.unsplash.com.

Federal Court Addresses Types of Changes that Can Be Made on Errata Sheet Relative to Deposition

In the case of In Re Injectafer Products Liability Litigation, No. 19-276 (E.D. Pa. Sept. 15, 2022 Beetlestone, J.), the court addressed the propriety of the completion of deposition errata sheets under Federal Rule of Civil Procedure 30(e).

In reviewing Rule 30(e), the court noted that, only “some reason” is needed to support the use of a deposition errata sheet following the completion of a deposition. As such, one word changes and other short explanations are not considered to be deficient and are allowed.

However, the court found that efforts to add into the deposition by way of an errata sheet material beyond the scope of what the witness actually testified to will be stricken as such information are not clarifications.

The court additionally noted that errata changes that are contradictory to the testimony that was completed, such as changes a “yes” answer to a “no” answer would be stricken.

It was noted by the court that while a deponent may regret certain testimony, even if a statement was made in jest, this is not a sufficient reason to alter or remove that testimony by way of an errata sheet.

Lastly, the court also noted that numerous other types of errata may be permissible as reviewed on a case by case basis. Yet, while testimony may be modified through the use of an errata sheet, the original testimony contained in the deposition transcript is to be preserved as well.

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


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

Speaking Objections At Depositions Addressed by Judge Terrence R. Nealon of Lackawanna County

In the case of The Fiduciary Trust Co. Int’l of Pa v. Geisinger-Community Medical Center, No. 20-CV-4775 (C.P. Lacka. Co. March 4, 2022 Nealon, J.), Judge Terrence R. Nealon tackled the issue of speaking objections during the course of depositions that were conducted in this medical malpractice action.

According to the Opinion, after a nurse who was being deposed had demonstrated an understanding of information on fetal monitoring strips and had defined certain medical terms in that regard during her testimony, a Plaintiff’s attorney displayed the fetal monitoring strips to the nurse and attempted to question her regarding the findings on the same.

The record before the court revealed that, following suggestive interjections by her counsel, the nurse, who had worked as a labor and delivery nurse for almost 40 years until her retirement in 2008, indicated that she did not know if she would be able interpret the fetal monitoring strips satisfactorily.

When the Plaintiff’s attorney then attempted to explore the nurse’s ability to review and comprehend the strips, the nurse’s attorney objected and instructed the nurse not to answer any questions regarding the fetal monitoring strips.

In response, the Plaintiff filed a discovery motion seeking to compel the nurse to answer the questions presented. Plaintiff’s counsel also sought monetary sanctions due for requiring the Plaintiff to file this Motion.

Judge Terrence R. Nealon
Lackawanna County

After reviewing Pennsylvania law on the issues presented, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas noted that the Plaintiff was entitled to adequately probe the legitimacy and extent of any claimed incompetency by the nurse deponent regarding her ability to read or understand the fetal monitoring strips. The court noted that the issue of whether the nurse’s claim that she had no such abilities should be left to the jury to determine.

In so ruling, the court noted that counsel for a deponent “may direct the witness not to answer a specific question only if that instruction is necessary to (a) protect a recognized privilege, (b) enforce an evidentiary limitation established by an earlier court ruling in the case, or (c) present a motion for a protective order based upon grounds identified in Pa. R.C.P. 4012(a).

The court found that the instruction issued in this case by the attorney to the witness not to answer the Plaintiff’s questions were not based on any of the above noted reasons and, as such, the court granted the Plaintiff counsel fees incurred in preparing and presenting the discovery motion. 

The court also directed the nurse to submit to an additional deposition within the next thirty (30) days to answer the questions regarding her interpretation of the fetal monitoring strips and her ability to do so.

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


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

Photo by Andrea Piacquadio from www.pexels.com.

Court Compels Deposition of Defendant Over Defendant's Covid-19 Pandemic Fears

In the case of Espinosa v. Luthercare, No. 2019-CV-02130 (C.P. Leb. Co. July 28, 2021 Charles, J.), Judge Bradford H. Charles of the Lebanon County Court of Common Pleas issued a decision ordering a witness to give a videotape deposition testimony without a mask but while sitting in a room without anyone else present. The court granted the Motion to Compel at issue filed by a Plaintiff against a Defendant in a professional negligence action against a doctor and a nursing facility in which it was alleged that the decedent’s death was allegedly caused by the Defendants’ failure to evaluate and treat the decedent.

In this matter, the Plaintiff sought the Defendant doctor’s deposition.

The Defendant doctor asserted that he should be permitted to wear a mask due to concerns over COVID-19 during the deposition.

The Plaintiff argued that the Defendant should not be allowed to wear a mask but that the Plaintiff would agree to videotaping the Defendant’s deposition such that the Defendant’s doctor would be the only person in the room.

In rendering his decision, Judge Charles reviewed the Pennsylvania case law that stressed the importance of the fact-finder in being able to assess the demeanor of the witness.

The court additionally noted that witnesses in its courtroom had never been allowed to wear masks while testifying during the pandemic, noting it was the court’s belief that the fact-finder should be able to see the witnesses clearly as they testify.

The court noted that the facial expressions of a witness contribute to the overall demeanor of the witness and that the demeanor of the witness was a touch stone of any credibility assessment.

As noted above, the court, while noting the seriousness of the COVID-19 concerns, found that the proposed process of having the witness unmasked and in a room by himself would reduce the risk of infection to almost a de minimus level.

Under the discretion granted to trial court judges to manage the discovery process, the court crafted an Order compelling the unmasked, videotape deposition of the Defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of above image:  Photo by Anshu A on Unsplash.com.

 

dancummins@CumminsLaw.net

(570) 319-5899

A Primer on Attorney Conduct At Depositions

A hotly debated issue in medical malpractice litigation over the past decade has been whether a defendant-physician can (1) refuse to answer standard of care questions or medical opinion questions or respond to requests to conduct a retrospective review of his/her own care so long as [s]he agrees not to testify as to those matters at trial (Allegheny County Judge R. Stanton Wettick (ret.) approach) or (2) can be compelled to answer deposition inquiries regarding standard of care, medical opinion, and/or retrospective review of care (Lackawanna County Judge Terrence R. Nealon approach).

In an Opinion issued earlier this week in the medical malpractice case of Lau v. Allegheny Health Network, G.D. 18 - 011924 (C.P. Allegh. Co. March 30, 2021 Ignelzi, J.), the Motions Court Judge in Allegheny County, Judge Phillip Ignelzi, abrogated the Judge Wettick approach for Allegheny County moving forward and adopted Judge Nealon’s approach as enunciated in Karim v. Reedy, 53 Pa. D. & C.5th 335 (Lacka. Co. 2016)(click this LINK to view that case) and Howarth-Gadomski v. Henzes, 2019 WL 6354235 (Lacka. Co. 2019)(click this LINK to view that case).

Judge Ignelzi held in Lau that defendant-physicians must now answer questions regarding standard of care, medical opinion, and/or retrospective review of care during their discovery depositions.

The decision is also notable for its instruction on the proper conduct of counsel during discovery, including at depositions. Judge Ignelzi frowned upon speaking objections and instructions by counsel to a witness not to answer a question.

The Court in Lau noted that an attorney should not instruct a witness not to answer a deposition question “unless counsel has objected on the ground that the answer is protected by privilege or a limitation on evidence directed by the Court.” See Op. at p. 33.

Judge Ignelzi adopted Lackawanna County Local Rule of Civil Procedure 4007.1(a), that states that counsel making an objection at a deposition shall state the word “objection,” and briefly state the legal basis for the objection without argument. See Op. at p. 30.

The Court also provides guidance on what types of deposition questions can be properly the subject of “objections to the form of the question,” and confirms that if such objections are not made during the course of a deposition, such objections to the form are considered to be waived under Pa.R.C.P. 4016(c).

More specifically, the Court found that deposition questions that are properly the subject to objections to the form of the question include “compound questions, questions that are ambiguous, unintelligible, misstatements of evidence or testimony, argumentative, assuming facts not in evidence, calling for speculation and deponent answers that are non-responsive.” See Op. at p. 29-30.

Anyone wishing to review this decision may click this LINK.

Protective Order Relative to Defendant Surgeon's Deposition Denied in Medical Malpractice Action

In the case of Freas v. Aziz, No. GD - 004285, 1334 WDA 2019 (C.P. Allegh. Co. Oct. 30, 2019, Hertzberg, J.), the court issued a Rule 1925 Opinion to explain to the Superior Court why it denied a Motion for a Protective Order to shield a Defendant surgeon from providing deposition testimony in a medical malpractice case. The court noted that the Motion for a Protective Order had been denied because the Motion simply stated that the surgeon could not participate due to a medical condition and did not make a particularized fact-intensive showing of the need for such an Order.

The trial court noted that the Defendant surgeon provided a brief letter from another doctor who advised that the Defendant surgeon’s “medical condition does not permit him to participate in any depositions and/or give deposition testimony.” No further details were provided in the letter or in the motion as to why the surgeon could not participate in a deposition. 

According to the Opinion, the trial court had issued an Order deferring a final ruling on the Motion for Protective Order regarding the surgeon until a deposition had been completed of the other doctor who provided the letter, that other doctor providing his medical records on the Defendant surgeon, and the Defendant surgeon undergoing an independent medical examination relative to the Motion.

Overall, the trial court asserted that the Defendant’s vague explanation as to why the doctor could not participate in a deposition due to a medical condition failed to meet the standards for the entry of a protective order. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2019).

Judge Nealon of Lackawanna County Addresses Proper Scope of Deposition Questions to a Medical Malpractice Defendant Doctor

Should a Defendant physician in a medical malpractice case be required to answer questions regarding the standard of care applicable to the treatment she or he provided?

That was the issue decided by Judge Terrence R. Nealon in the case of Howarth-Gadomski v. Henzes, No. 18-CV-2585 (C.P. Lacka. Co. Nov. 27, 2019 Nealon, J.).

According to the Opinion, a Defendant physician’s attorney refused to permit the physician to answer questions at a deposition seeking the doctor’s medical opinions, including those related to the applicable standard of care.

The Plaintiff filed a motion seeking to compel the doctor to answer those questions during a second deposition.

In opposition, the Defendant physician asserted that he cannot be compelled “to testify against himself,” and asserted that the Plaintiff must present their own expert testimony to address the standard of care.

The Plaintiff countered the argument that, under Pa. R.C.P. 4003.1(c), it is not a ground for objection to any discovery inquiry that the information sought involves an opinion.

The court ruled that no Pennsylvania statute, rule, or appellate authority entitles a medical malpractice Defendant/deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.

Judge Nealon noted that the explanatory comments to the Rules of Civil Procedure 4003.1, 4003.5, along with Pennsylvania case law, support the proposition that a party deponent may not object to deposition questions on the basis that they seek opinion testimony. Those rules also confirm that a Defendant-physician need not author a pre-trial expert report since any Plaintiff may discover that party’s opinions at a deposition.

As such, the court in this matter granted the Plaintiff’s Motion to Compel the Defendant physician to attend a second deposition. The court also ordered the Defendant physician to answer medical opinion and standard of care questions.

The court did note that, during the second deposition, defense counsel may direct the Defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privileged, to enforce and evidentiary limitation established by any earlier court rulings in this case, or to present a Motion for a Protective Order based on the grounds allowed under Pa. R.C.P. 4012(a).

In this decision, the court also noted that, if the Defendant-physician and his attorney chose to discuss the subject matter of this malpractice care during any recess of the deposition, the questioning attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

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

A Primer on the Rules Pertaining to Use of Depositions At Trial

In the case of Mueller v. 20th Century Glove Corp., No. 11901-2016 (C.P. Erie. Co. 2018 Domitrovich, J.), the court allowed, over the objections of various Defendants, a Plaintiff's attorney to use a deposition of a Plaintiff at trial where the Plaintiff had died during the litigation.  In so ruling the court noted that the defense counsel had an opportunity during the deposition to cross-examine the Plaintiff.

The case provides a nice overview of hearsay rules and Pa.R.C.P. 4020 pertaining to the use of depositions at trial.

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

I send thanks to Attorney Craig Murphey of the Erie, PA law firm of Purchase, George & Murphey for providing me with a copy of this decision.

Judge Nealon Addresses Motion to Preclude Completion of Deposition Due to Deponent's Anxiety

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a Motion for Protective Order to Preclude the Completion of a Deposition Due to the Deponent's Anxiety in the wrongful death medical malpractice case of Ezrin v. Hospice Preferred Choice, Inc., No. 16-CV-7103 (C.P. Lacka. Co. Oct. 3, 2018 Nealon, J.).

This case arose out of a negligence action pertaining to hospice care provided by a nursing home.

After a charge nurse's deposition was recessed when her anxiety disorder reportedly became exacerbated, and after a dispute arose over the conclusion of the deposition, the nursing home filed the motion for protective order at issue.

After reviewing the record provided to the court on the issue, Judge Nealon ruled that that nursing home had not met its burden of supporting its request that the deposition be adjourned and not recommenced.

In particular, the court noted that a physician's report submitted on behalf of the anxious nurse, the nurse's physician noted that the nurse did not feel at the time of the deposition that she could complete her deposition.  In his report, the doctor also noted his opinion that the deposition should be postponed, as opposed to prohibited, in order to allow the nurse's anxiety to be brought back under control.

The court also noted that the record confirmed that the nurse was employed full-time by the nursing home and was responsible for 30 patients during each shift.

Overall, the court concluded that the nursing home had failed to show "good cause" to permanently prevent the resumption of the deposition on the grounds of unreasonable burden, oppression, or annoyance.  As such, the motion for protective order was denied and the nursing home was directed to produce the nurse to complete her deposition prior to the expiration of the discovery deadline.

In his Opinion, Judge Nealon cautioned the attorneys, including the attorney for the nursing home, against interrupting the deposition process, particularly after a question is asked and before the witness answered.  The court cited to case law confirming that there is no need for an opposing attorney to act as an intermediary, interpreting the meaning of questions for the witness or engaging in other unnecessary interruptions, during the course of a deposition.

The court noted that a less disquieting atmosphere during the recommenced deposition of the nurse may assist in keeping her anxiety at bay.

This Opinion contains a nice recitation of the standard of review for addressing motions for protective orders under Pa.R.C.P. 4012.  The Opinion can be viewed at this LINK

TORT TALK PRACTICE TIP

A GOOD WAY TO BEGIN A DEPOSITION

Oftentimes, attorneys may dive into a deposition without securing basic background information to start a depositions.  There have even been depositions completed where an attorney has not even asked the deponent to state their name.

A good way to being a deposition, even before you introduce yourself or lay out the ground rules for the deposition, is to start by asking the person's name, address, and basic background information so that you have this information on the first page of the deposition transcript for your easy reference.

A suggested way to start may be, as follows:

Good morning, can you please start by stating your full name and address?

What is your date of birth?

How old are you as you sit here today?

It is my understanding that you were ____ years old back when this accident occurred?

[Ask to go off the record, and then ask for the deponent's social security number]


Once you have the above basic information, you can then review with the witness the basic ground rules of a deposition to help the proceeding flow smoothly from that point on.

Supplemental Deposition of Med Mal Defendant Allowed On Limited Basis

In the medical malpractice case of Venosh v. Henzes, No. 11 - CV - 3058 (C.P. Lacka. Co. Jan. 18, 2018 Nealon, J.), the Lackawanna County Court of Common Pleas granted in part and denied in part a Plaintiff's motion to compel relative to requested additional discovery responses from, and a supplemental deposition of, a defendant doctor.

In this case, the Plaintiff attempted to secure the additional deposition of the doctor after the Plaintiff had certified the case for trial under a certification that all discovery had been completed.  The Plaintiff wished to depose the doctor on a written statement he had made to a health insurer relative ot an internal quality-of-care review of the treatment provided to the Plaintiff.

The court allowed the deposition but circumscribed the scope of the questioning to a very narrow issue.  The court noted that no prejudice was established relative to the additional discovery, particularly since the trial date was still nine months into the future.

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

Deposition of Claims Rep Allowed In Lackawanna County Post-Koken Case

In the case of Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.), the court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case.

While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics.  In this regard, the court cited to Pa.R.C.P. 4003.3.

Anyone wishing to review this decision may click this LINK.

Another Dauphin County Order Compelling Production of Virtual Surveillance (Facebook Info, etc.) Before Deposition of Plaintiff is Completed

The Dauphin County Court of Common Pleas has issued another decision compelling a defendant to produce virtual surveillance, i.e. online surveillance of a plaintiff's social media activity on Facebook, Instagram, etc, prior to the deposition of the plaintiff.  The Order only was handed down in the case of Appleby v. Erie Ins. Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, 2016 Dowling, J.).

In the Order the court again also held that any ordinary surveillance completed of the Plaintiff need not be produced until after the deposition was completed.

Anyone wishing to review this Order may click this LINK.

The other Tort Talk posts on the other previous Dauphin County decisions in other cases in this regard, along with Links to those decisions can be viewed HERE and HERE.

I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.

Dauphin County Court of Common Pleas Issues Another Order on Timing of Production of Virtual (Social Media) Surveillance Gathered on a Party

Another Judge in the Dauphin County Court of Common Pleas has entered an Order requiring a Defendant to produce, prior to the Plaintiff’s deposition, all social media information gathered on the Plaintiff.   This Order was entered by Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas in the case of Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, 2016 Bratton, J.).

The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.   In this regard, the court cited Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000).  

Click this LINK to view the Tort Talk post on the other Dauphin County Court of Common Pleas case in this regard issued by Judge Dowling.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net. 

 

I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.

 

Deposition of Plaintiff's Counsel Allowed in Bad Faith Claim

In the case of Adeniyi-Jones v. State Farm Mut. Auto. Ins. Co., No. 147101 (E.D. Pa. Oct. 21, 2015), the Pennsylvania Eastern District Federal Court allowed a deposition of Plaintiff’s counsel in a UIM/bad faith claim.  

In this matter, the Plaintiff filed suit against her own automobile insurance company for UIM benefits and included a bad faith claim with respect to the negotiations on the UIM claim.  

The carrier’s counsel noticed a deposition of Plaintiff’s counsel.  Plaintiff’s counsel responded with a Motion for a Protective Order.

The carrier wished to take the Plaintiff’s counsel’s deposition with respect to discussions that attorney had with State Farm’s claims representative prior to the filing of a lawsuit.   

The allegations of bad faith in the Complaint included allegations pertaining to the failures of the carrier to request an examination under oath or an IME.  The carrier contended that an oral agreement existed between the claims representative and Plaintiff’s counsel that Plaintiff’s counsel would provide information to State Farm such that an examination under oath and an IME would not be required.   Accordingly, the existence of any oral agreement was central to a defense of the bad faith claim.

The court found that Plaintiff’s counsel had relevant information available only through her on that defense.   The court additionally ruled that communications with the claims representative were not protected by the attorney-client privilege.  

While the court allowed the defense counsel to take the deposition of the Plaintiff’s counsel, that deposition was limited to discovery of pre-litigation communications between Plaintiff’s counsel and the carrier’s claims representative.  

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

I send thanks to Attorney Thomas A. McDonnell of the Pittsburgh, Pennsylvania law firm of Summers, McDonnell, Hudock, & Guthrie for bringing this case to my attention.  

Deposition of a UIM Claims Rep in a Luzerne County Post-Koken Case Allowed

The Luzerne County Court of Common Pleas
 

In his recent March 9, 2016 Order without opinion in the case of Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.), Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case.  The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices for bringing this decision to my attention.

Commentary:   This decision of Judge Burke is notable in that Judge Burke had twice previously denied Motions to Compel Depositions of Claims Representatives in context of post-Koken cases by Order only.   See e.g. Garret v. Griffin, No. 17274-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.); Krzynefski v. Bish, No. 16643-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.).  

Also, there are other Luzerne County Court of Common Pleas decisions allowing for claims representative depositions in post-Koken matters, including a decision by Judge William H. Amesbury in the case of Paulewicz v. State Farm, No. 10655-Civil-2009 (C.P. Luz. Co. Feb. 1, 2010 Amesbury, J.), as well as the decision of Boyle v. Progressive, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.).  

 

Judge Nealon Tackles Assertion of Privilege Against Self-incrimination at Depositions

In a decision handed down a few months back in the case of Rogers v. Thomas, No. 2012-CV1464 (C.P. Lacka. Co. Nov. 25, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the right of a Defendant to assert a Fifth Amendment privilege against self-incrimination in a case brought by the estate of a shooting victim against the adult shooter and his father.  

In this matter, the estate of the shooting victim filed a wrongful death suit against the adult shooter and the shooter's father, alleging that the gun used during the shooting was owned by the father, that the father was present at the time of the shooting, that the father knew that his son had a mental disability which rendered his unfit to use a gun, and that the father allegedly knew that the son had previously harmed or threatened another person with the gun.   The father filed a Motion for Summary Judgment on the liability issues presented. 

The court noted that, during his discovery deposition, the son asserted his Fifth Amendment privilege against self-incrimination and declined to answer any questions concerning the facts at issue.  

However, Judge Nealon noted that the son later testified about the same facts during his criminal trial and was convicted of voluntary manslaughter.  The court also noted that the Plaintiff had exhausted his direct appeal in the criminal proceedings and, as a result, the son’s criminal prosecution had been concluded.  

The father filed a Motion for Summary Judgment based, in part, upon the son’s criminal trial testimony.   The estate opposed the Motion for Summary Judgment on the ground that it was entitled to adverse inference based upon the son’s assertion of his Fifth Amendment privilege and that, therefore, the Defendant's Motion should be denied and the case be allowed to proceed to a civil jury trial.

Judge Nealon reasoned in his Opinion that the Supreme Court of Pennsylvania has held that a Plaintiff cannot satisfy its burden of proof in a civil case solely in reliance upon a Defendant’s failure to testify based upon the assertion of a Fifth Amendment privilege.  

However, the court in this matter went on to rule that, since the son’s criminal prosecution had concluded such that the son was no longer facing the threat of further criminal prosecution or self-incrimination, the son was found to no longer possess the right to refuse to answer the Plaintiff’s deposition questions.  

Accordingly, Judge Nealon ordered the parties to conduct a second deposition of the son and to thereafter submit the deposition transcript along with their supplemental briefs so that the summary judgment motion could be decided at that later point in time.

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

 

 

Judge Nealon of Lackawanna Addresses Parameters of Discovery of a Defendant Doctor's Opinions in a Med Mal Case

In his recent decision in the case of Karim v. Reedy, No. 2011-CV-4598 (C.P. Lacka. Co. Jan. 11, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues pertaining to the parameters of a deposition of a Defendant doctor and a Defendant hospital’s nurse.  The issues surrounded a Plaintiff's attorney's demand that the witnesses answer certain questions that their counsel instructed them not to answer during the course of their depositions in the medical malpractice matter.  

The deponents contended that their opinions, including those related to the standard of care which govern their conduct, cannot be discovered without their consent, and that, to the extent that any such opinions are subject to discovery, those opinions should be restricted their evaluation of the labor and delivery issues at the time they provided their care, rather than their retrospective or current assessment of those matters.  

These Defendants also asserted that, if they stipulated that they would not address these standard of care issues during the trial testimony, their opinions in that regard could not be discovered.  

Judge Nealon rejected these contentions and ordered the Defendant doctor and nurse to submit to a second deposition to answer the questions presented.  

In so ruling, Judge Nealon wrote in his thorough Opinion that the Pennsylvania Rules of Civil Procedure and controlling precedent generally provided that medical malpractice Plaintiffs are permitted to discover the past and present opinions of a Defendant and a Defendant’s agent concerning the health care treatment at issue.  

The Court also noted that, although a malpractice Defendant’s opinion testimony regarding the negligence of another Defendant may not be introduced at trial without the malpractice Defendant’s consent, that opinion nevertheless remains discoverable.  Judge Nealon further indicated that there was no Pennsylvania law uncovered that granted a party the right to withhold from discovery that party’s relevant opinions. 

Nor did the court find any law to provide support for a malpractice Defendant’s ability to prevent the discovery of those opinions, including opinions addressing the standard of care, by agreeing not to disclose those opinions at trial.  

On another issue, the Court also found that the doctor’s prior depositions in medical malpractice litigation may be discovered in the current case as such depositions may contain medical opinions that are relevant to the doctor’s care in the present case, or may furnish grounds for impeachment.  

I send thanks to Reporter Ben Seal of the Pennsylvania Law Weekly for bringing this case to my attention.

 

Anyone desiring a copy of this decision may click this LINK.

To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK.  If you cannot access the article via the Link, please let me know and I will email you a copy.
 

 

Post-Koken Trial Order Out of Washington County on Evidentiary Issues--Plaintiff Precluded From Calling Claims Rep as Witness

In recent Orders issued by the Washington County Court of Commons Pleas of Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.), the court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence at a Post-Koken trial related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers.  

The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.  

According to the information secured in this matter, this case involved a trial against State Farm as the UIM carrier.  There was no tortfeasor defendant involved in this trial.  

Anyone desiring a copy of these Orders may contact me at dancummins@comcast.net.