Code of Civility Relied Upon For Admonishment of Counsel

Can the Code of Civility serve as a basis of a trial court Order admonishing counsel in a case for conduct in litigation? 

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. June , 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Commons addressed numerous discovery related motions filed by each party in what he described as an “exceedingly acrimonious motor vehicle accident litigation.” Of note, the Court granted the Plaintiff’s motion to admonish the defense attorney under the Code of Civility.

The court addressed issues regarding the defense efforts to compel discovery depositions of three (3) treating physicians that the Plaintiffs have identified as expert witnesses or to alternatively require the Plaintiff to call those physicians as experts at trial, to strike the Plaintiffs’ objections to discovery responses and compel more specific answers, and to be granted “priority” with respect to the ability to question a particular deponent first during her deposition. 

The Plaintiffs’ motions requested the issuance of an Order barring further discovery related to three (3) discontinued medical malpractice actions that were filed against the Plaintiff, who happened to be a physician. The Plaintiffs also sought the production of the Defendant driver’s cell phone records and Answers to Interrogatories regarding the defense expert’s litigation activity and income. 

Also of note, the court addressed the Plaintiffs’ motion seeking a formal admonishment of the defense counsel for certain conduct to date that the Plaintiffs asserted was in violation of the Code of Civility and the Rules of Professional Conduct particularly with reference to written communications by email between the parties. 

The court’s 53 page Opinion offers a good read and a thorough analysis of all of these issues presented. 

In the end, the court agreed to grant in part and deny in part the various motions presented. With respect to the Plaintiffs’ motion regarding the alleged violations of the Code of Civility, the court agreed that an admonishment to the defense counsel to be more attentive to the principles of professionalism was warranted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Cooper Interrogatories Addressed to Plaintiff's Treating Physician Reconsidered By Judge Mazzoni of Lackawanna County

Tort Talkers may recall that I recently posted on the case of Mina v. Hua Mei, Inc., 2012-CV-7781 (C.P. Lacka. Co. 2016 Mazzoni, J.) HERE in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas ruled that a Plaintiff's treating doctor could be compelled to respond to Cooper Interrogatories seeking bias information, including financial information relative to the experts medical-legal activities.

UPDATE:  On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision.  Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.

Senior Judge Robert A. Mazzoni
Lackawanna County

Judge Mazzoni noted that, upon further consideration of the matter, the threshold test mandated by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) of showing that the Plaintiff's treating physician was a "professional witness" had not been met by the defense.  Accordingly, the court found that it would not be appropriate to allow for the more intrusive Cooper Interrogatories to be submitted to that expert.

In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case.  Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts.  The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."

Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK

Judge Mazzoni's original decision can be viewed HERE.

I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.

Plaintiff's Treating Doctors May Also Be Subjected to Cooper Interrogatories

In a notable detailed Order dated January 6, 2016 in the case of Mina v. Hua Mei, Inc., No. 2012 - CV - 7781 (C.P. Lacka. Co. Jan. 6, 2016 Mazzoni, J.), Judge Robert A. Mazzoni ruled that a Plaintiff's treating physician was required to respond to Cooper Interrogatories designed to seek discovery of financial bias information from that doctor. 

In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises.  Following the accident, the Plaintiff was treated, in part, by a physatrist. 

During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.

The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation.  Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.

Judge Robert A. Mazzoni
Lackawanna County

After reviewing Pa.R.C.P. 4003.5 and the relevant case law, Judge Mazzoni ordered the Plaintiff to respond to the Interrogatories.  The court noted that the issue of whether or not a doctor's opinions were acquired or developed in anticipation of litigation or for trial was a case-by-case determination and that the fact that the doctor was a treating physician, in and of itself, was not conclusive and did not end the inquiry.

In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors.  It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency.  This request, and the report, were written about a year before the litigation began.

Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.

What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality.  The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion.  See Op. at p. 5.

Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."

As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome.  The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.

Anyone wishing to review 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.


I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.