Superior Court Defines Good Cause Requirement or IMEs or DMes

In the case of Verba v. Erie Insurance Exchange, No. 2633 EDA 2023 (Pa. Super. Oct. 31, 2024 Panella, P.J.E., King, J., and Stevens, P.J.E) (Op. by King, J.), the Pennsylvania Superior Court addressed the standard for determining whether good cause exist to compel the Plaintiff to cooperate with a request for a medical examination, that is, an IME or a DME depending on what you call it, under Pa. R.C.P. 4010.

The court noted that the requirement of good cause set forth in Rule 4010 is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes.

The court noted that good cause can exist in a pending litigation if there is a controversy that relates to the very existence of a medical condition which goes to the validity of the cause of action and where absent proof of the Plaintiff’s medical condition a case may not proceed.

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

Source: The Legal Intelligencer State Appellate Case Alert. www.law.com (Nov. 20, 2024).

Source of image:  Photo by Pavil Danilyuk on www.pexels.com.

Trial Court Refuses To Allow Defense Counsel to Attend Neuropsychological IME

In the case of Healey v. Scranton Hospital Company, LLC, No. 2023-CV-1793 (C.P. Lacka. Co. Oct. 2, 2024 Nealon, J.), Judge Nealon ruled, in a medical malpractice case that a defense attorney is not permitted to attend a neuropsychological examination that the defense had scheduled for a Plaintiff.

The court found that Pa. R.C.P. 4010, regarding physical and mental examinations in civil litigation matters, only grants the Plaintiff’s counsel the right to attend such an examination of the Plaintiff.

Judge Nealon noted that, “if the Supreme Court of Pennsylvania deemed it appropriate or necessary for defense counsel to have a corresponding right to attend a Rule 4010 examination, it could have stated so” in the Rule.

Given that Rule 4010 does not reference any right for a defense counsel to attend a medical examination set up for litigation purposes, Judge Nealon denied the defense motion in which the defense sought permission to attend the examination.

In his Opinion, Judge Nealon also cautioned that it would be inappropriate for a plaintiff's attorney interfere with the examination or obstruct the doctor's interview of the plaintiff, sanctions could be warranted.  The Judge also cautioned that, if the plaintiff's attorney acted inappropriately at the examination, the plaintiff's attorney even ran the risk of being disqualified from continuing as counsel for the plaintiff based upon the advocate-witness rule in Rule 3.7 of the Rules of Professional Conduct.

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

I send thanks to Attorney Bruce Zero of the Scranton, PA law firm of Powell, Zero & Mundy for bringing this case to my attention.

Trial Court Rules That Plaintiff Must Cooperate and Answer IME Doctor's Questions That Are Germane

In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.), the court granted a Defendant’s Motion to Compel a Plaintiff to provide information to the IME doctor during an independent medical examination of a Plaintiff in a personal injury case arising out of a motor vehicle accident.

According to the decision, the Plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that led to the Plaintiff’s alleged injuries.

Judge Higgins noted that the rule provides that the examiner is limited to inquiring regarding the facts of liability germane to the issue of damages. The court found that the Plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the Plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the IME doctor.

In granting the Defendant’s Motion to Compel in this regard, the Court ordered that the Plaintiff was required to cooperate and answer the questions of the examining doctor.  The court noted that, under Rule 4010, the Plaintiff could have her counsel or other representative present during the examination.

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


Source: “The Legal Intelligencer Case Alert”, www.LAW.com (March 20, 2024).

Source of image: Photo by Tima Miroshnichenko on www.pexels.com.

Northumberland County Court Addresses Attorney Presence at Neuropsychological IME

In the case of Ackley v. Johns, No. CV-2017-1757 (C.P. North. Co. Dec. 29, 2020 Rosini, J.), entered an Order only in this Northumberland County case ruling that a representative of a Plaintiff may be present during the entirety of a neuropsychological examination, including those parts of the examination that related to objective evaluations as well as the questioning/interviewing parts of the overall examination.

The court based its decision on a literal reading of Pa. R.C.P. 4010(a)(4)(i) which permits the subject of an examination to have a representative present. The court noted that, while it recognized the distinctions raised by the parties with respect to the objective evaluation part of exam and the questioning/interviewing parts of the overall neuropsychological exam, the court felt that it was bound by a clear wording of the discovery Rule of Civil Procedure.

In terms of the defense concern that the presence or involvement of Plaintiff’s counsel or a representative at the evaluation or examination would taint the examination, the court noted in a footnote to the Order that the defense retained the right to address those issues during the course of cross-examination at trial. [In making this statement, the court did not explain how or why a defense attorney would cross-examine its own expert witness at trial.].

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

I send thanks to Attorney Cliff Rieders of the Williamsport, Pennsylvania law firm of Rieders, Travis, Humphrey, Waters & Dorhmann, for bringing this case to my attention.

Sayles Decision Limited to Pre-Suit Claims by Federal Court Case

In the case of Loughery v. Mid-Century Insurance Co., No. 19-383 (W.D. Pa. Dec 23, 2019 Dodge, Fed. Mag. J.),a Western District Federal Magistrate Judge addressed the issue of the proper procedure for an insurance company to compel compliance by a Plaintiff relative to attending a medical examination under a first party medical benefits claim when a first party benefits case was already in suit. 

Before the Court was a motion by the carrier, pursuant to Federal Rule of Civil Procedure 35, which is entitled “Physical and Mental Examinations,” to compel the Plaintiff to attend a medical exam.

The Plaintiff asserted that, under its recent decision in the case of Sayles v. Allstate Ins. Co., --- A.3d --- (Pa. Nov. 20, 2019), the Pennsylvania Supreme Court established the proper method for scheduling an exam under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) as requiring motions practice and the securing of a court order.

While the court agreed that the Sayles decision may apply to pre-suit requests for medical exams in the first party contest, once a first party lawsuit was filed in Federal Court, then F.R.C.P 35 was to be applied. 

Applying F.R.C.P. 35 to the case before it, the Loughery court found that there was good cause shown by the carrier for the exam.

Anyone wishing to review this decision by Western Federal Magistrate Judge Dodge may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Pennsylvania Supreme Court Mandates Motions Practice for First Party PIP Medical Exams

The Plaintiff’s bar scored yet another victory at the Pennsylvania Supreme Court level with decision issued by the court in the combined matters of Sayles v Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.) and Scott v Travelers.

The case involved the practice of automobile insurance companies requesting insureds to attend PIP medical exams as may be required by the terms of the insurance policy.

The Plaintiffs argued that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is entitled “Mental or physical examination of a person."

That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The Plaintiff’s argument in Sayles was that Section 1796 required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam and that even when good cause is shown, it is the court and not the insurer who would select the examiner.

The Pennsylvania Supreme Court rejected the current practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions and ruled that insurers must, instead, file a Petition with the Court and demonstrate good cause. Also, it will now be an independent judge who will select the medical examiner and not the carrier.

The Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day.  See fn. 13.

Anyone wishing to review the Majority Opinion by Justice Todd may click this LINK.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott B. Cooper for bringing this case to my attention.

Commentary:  The Pennsylvania Supreme Court's decision in this regard appears to be of little moment as it is a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

Notably, to the extent that motions practice will now be required for those typical cases where an auto carrier wishes to secure an IME as part of the claims process, the Pennsylvania Supreme Court did not provide any guidance on how the already overburdened trial courts are to deal with the possible onslaught of new litigation that may result in this regard by plaintiffs who insist that the now required motions practice be followed.  Nor was any guidance provided by the Supreme Court to the trial court judges on how to select an appropriate doctor to complete the requested examination and/or what the manner, scope or conditions of the exam should be in any given case.

In the end, it appears that what was a non-issue has now been turned into a monumental problem for the trial courts going forward.

Judge Minora of Lackawanna County Addresses Parameters of Neuropsychological Examinations Requested by Defense

Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently weighed in on the issue of the proper parameters for a neuropsychological IME in the case of Dellavalle v. USAA, No. 2017-CV-4668 (C.P. Lacka. Co. May 14, 2019 Minora, J.).

This case involved UIM claim(s) arising out of a motor vehicle accident. 

The issue came before the court by way of a motion to compel filed by the defense.  The defense desired to complete a neuropsychological examination of the Plaintiff with a doctor in Allentown.  The Plaintiff objected to the distance required to travel to the exam and also objected to the requested length of the deposition.

There were also disputes between the parties as to whether the examination could be videotaped, to what extent the Plaintiff's attorney or a representative of the Plaintiff could be present during the exam or testing, and whether the Plaintiff was entitled to secure any raw data generated by the defense expert during the exam.

In addressing the issues before him, Judge Minora noted that Pa.R.C.P. 4010 allows for examination if good cause is shown and that Pa.R.C.P. 4011 grants the court discretion to avoid any discovery that causes unreasonable annoyance, embarrassment, oppression, burden, or expense to a person or a party.

In terms of the location of the expert, the court noted that it hesitated to infringe upon the right of any party to try the case they choose, including with respect to the selection of an expert.  As such, the court rejected the Plaintiff's objection to the location of the expert but ruled that the defense would have to bear any expenses related to the travel required for the Plaintiff to attend the exam.

As for the duration of the neuropsychological IME, the court limited the exam and testing to six hours over two days.  In this regard, the court noted that it was balancing the defense's right to the examination against the Plaintiff's right to be protected from unreasonably burdensome discovery.

With regards to presence of Plaintiff's counsel or a representative of the Plaintiff at the examination, the court noted that there was no binding appellate court precedent on the issue.  Judge Minora reviewed prior trial court opinions on the issue.  In the end, the court ruled that the Plaintiff could have a representative present only for the interview portion of the neuropsychological examination.  The court further ruled that a representative of the Plaintiff would not be allowed in the room during the standardized testing portion of the exam.

Judge Minora additionally ruled that no part of the examination by the doctor and/or the standardized testing could be videotaped.  However, he did allow for videotaping of the interview portion of the exam, i.e., the part at which the Plaintiff's representative was allowed to be present.

The court also ruled that the Plaintiff was to be provided with any raw data generated during the examination.  The court's Order also required that all examination and testing materials were to be returned to the Plaintiff upon the conclusion of the case.

Anyone wishing to review this decision, may click this LINK

I send thanks to Attorney Bruce Zero, Esq. of the Scranton, PA office of Powell Law for bringing this decision to my attention.

For other Tort Talk entries on this issue, check out the Label of "Neuropsychological Review" way down on the right hand column of the Tort Talk blog at www.TortTalk.com.

Pennsylvania Supreme Court to Address Propriety of Auto Policies Allowing for Multiple IMEs of Insureds

According to an October 18, 2018 article in the Pennsylvania Law Weekly by Zack Needles entitled "Pa. Supreme Court Takes 3rd Circ.'s Question on Auto Insurers' Medical Exam Policies," the Pennsylvania Supreme Court has agreed to review the question certified over by the Third Circuit Court of Appeals of whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing before they can receive benefits.

The article notes that the Pennsylvania Supreme Court issued identical October 15, 2018 Orders in both Sayles v. Allstate Insurance and Scott v. Travelers Commercial Insurance, granting the Third Circuit’s petition for certification of a question of law. 

The certified question is, as follows: “Whether, under Pennsylvania law, a contractual provision in a motor vehicle insurance policy that requires an insured to submit to an independent medical examination by a physician selected by the insurer, when and as often as the insurer may reasonably require, as a condition precedent to the payment of first-party medical benefits under that policy, conflicts with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1796(a), and is therefore void as against public policy.”

The Order in Sayles can be reviewed HERE.

The Order in Scott can be reviewed HERE.

Commentary:  It appears that at least one of the arguments by the Plaintiffs in these cases is that an automobile insurance carrier should not be able to send its insured to an IME or multiple IMEs as a matter of course as allowed by the policy language where the Pennsylvania Rules of Civil Procedure only allow for IMEs when good cause is shown.  See Pa.R.C.P. 4010.

In reality and as a practical matter, it is a rare occurrence that an auto insurance carrier will subject its insureds to multiple IMEs.  In some cases, where a Plaintiff has separate types of injuries for which he or she has treated with separate specialists, then a carrier may request separate IMEs with doctors in those same types of specialties.  But carriers are not in the habit of sending its insureds to multiple IMEs as a matter of course.

Therefore, it is curious that the Pennsylvania Supreme Court would accept this issue for review where a decision on this question presented is not likely to have any great effect as a practical matter.

Parameters of Neuropsychological IME Reviewed in Dauphin County Case

Dauphin County Court of Common Pleas

In an Order only issued by the Dauphin County Court of Common Pleas in the case of Eberhard v. Pettis, No. 2014-CV-78180-CV (Jan. 31, 2018 McNally, J.), the court compelled a Plaintiff to attend an independent neuropsychological evaluation. 

In the Order, the court permitted Plaintiff’s counsel, or another representative of the Plaintiff, to attend the interview phase of the evaluation only.   The Order further prohibited the Plaintiff from recording the standardized testing portion of the evaluation.  

In its Order, the court cited to the Pennsylvania Supreme Court case of Shearer v. Hafer, No. 93 MAP 2016 (Pa. 2018) as supporting the trial court’s decision in this regard.  

Anyone wishing to review this Order only, may click this LINK.

For other Tort Talk posts on cases addressing the permissible parameters of neuropsychological examinations, please click HERE

Year End Review Article Published In Pennsylvania Law Weekly

The below article of mine was published in the December 1, 2016 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

Civil Litigation

A Year in Review: The Top Recurring Issues

By

Daniel E. Cummins

December 1, 2016/Pennsylvania Law Weekly 

Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA

 

 

 

 

 

 

 

 

 

A number of recurring issues rose to the top of attention in the past year, many of which are expected to remain on the forefront of civil litigation trends into 2017. Here's a look back at some of the top topics in 2016 in personal injury matters.

Facebook Discovery Issues

In past years, with the rapid expansion of social media, the primary issue was to what extent a party may seek discovery of another party's social media activity, particularly with respect to Facebook. Now that the courts have generally allowed parties to delve into the private portions of another party's social media accounts provided that a predicate showing has been made that relevant information will be uncovered, a more recent trend of cases has considered when any such discovered information must be produced, i.e., before or after a party's deposition.

Typically, the courts have previously held, at least in the case of video surveillance completed on a party, that such surveillance information need not be produced in state court civil litigation matters until after the completion of a party's deposition.

The trial court judges in Dauphin County, including Judge Andrew H. Dowling and Judge Bruce F. Bratton, appear to be among the first to address the issue of when virtual surveillance information, i.e., social media search results from Facebook, Instagram, Tumblr and the like, must be produced have taken a different approach. These judges have ruled that social media information should be produced to an opposing party before that party's deposition, as in Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, Dowling, J.); Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, Bratton, J.); and Appleby v. Erie Insurance Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, Dowling, J.).

Whether other trial court judges from around the commonwealth will rule in a similar fashion or will, instead, apply the same rule of discovery pertaining to video surveillance remains to be seen.

Claims of Privileged Information in Discovery

In its decision in the case Brown v. Greyhound Lines, No. 1167 EDA 2015, 2016 Pa. Super. 108 (Pa. Super. May 24), the Pennsylvania Superior Court addressed issues pertaining to the attorney-client privilege and the work product doctrine as applied between attorneys and third-party administrators in personal injury civil litigation matters.

The issue raised in this matter involved a request for production of documents sent by the plaintiff to a defendant carrier seeking the contents of claims files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett, a third-party adjustment company which contractually handled claims and investigations for the carrier. The defendants objected to these discovery requests on the basis that the materials were confidential under the attorney-client privilege and attorney work product privilege.

Applying the law to the case before it, the appellate court found that the defendants had failed to establish that the trial court's rulings allowing for the discovery of certain documents should be overturned. In part, the court faulted the defendants in failing to carry their burden of proof on the privilege by failing to make any specific arguments beyond citing general precepts concerning the attorney-client and work product privileges.

The issue of the admissibility of communications between defense counsel and a third-party claims administrator was also addressed in the Middle District court decision by Judge Matthew W. Brann in the case of Heller's Gas v. International Insurance of Hannover, 4:15-CV-01350 (M.D. Pa. June 1).

In this breach of contract and bad-faith case relative to a policy that provided commercial premises coverage, the plaintiff insured claimed that documents withheld or redacted in discovery did not fall within the attorney-client privilege, the work product doctrine, and did not pertain to reserve information. The plaintiff more specifically asserted that all but one of the documents at issue was either sent to or from employees of the insurer's third-party administrator or its authorized claim representative, and as neither of these entities were subsidiaries of, or owned by, the insurer, the communications were not privileged.

The carrier countered with the argument that the communications between the third party administrator's in-house counsel and the claim representative's in-house counsel with the insurer all fell within the scope of attorney-client privilege.

The court reviewed the unredacted documents during an in camera session. Thereafter the court, referring to F.R.C.P. 26, decided: "After thoroughly examining the documents, this court finds that the information redacted appropriately falls within the attorney-client privilege and work product doctrine and is consequently information directly related to or referencing legal strategy regarding the instant litigation. The correspondence further supports [the insurer's] latterly advanced argument that [the third party administrator and authorized claims representative] are essentially agents of [the insurer]." As such, the court found that the redactions were appropriate.

In a more recent decision on issues pertaining to assertions of privilege in response to discovery requests, the Superior Court emphasized that such issues were immediately appealable on an interlocutory basis as collateral orders.

In Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8), a case that involved claims of the attorney-client privilege and psychologist/patient privilege, the court held that in the event that a trial court orders the production of the privileged information in response to a motion to compel, even for the purpose of an in camera review by the trial court, the aggrieved party is allowed an immediate interlocutory appeal as of right as a collateral order.

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them. The Superior Court also ruled that the application of privileges is subject to a de novo review.

Waiver/Release from Liability Forms

A number of decisions were handed down over the past year upholding waiver or release forms executed by injured parties prior to participating in recreational activities.

In an apparent case of first impression of Feleccia v. Lackawanna College, No. 12-CV-1960 (C.P. Lacka. Co. Feb. 2), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

In his opinion, Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases for skiing, white water rafting, weight lifting, skating, and motorcycling, among other types of activities, no case was found involving collegiate football.

Gibbons nevertheless ruled that neither the applicable law nor the facts of this case required the court to distinguish between the inherently dangerous nature of football and these other types of sporting activities noted. As such, the court ruled that waivers of liability executed by the students precluded their recovery.

In the Superior Court case of Hinkal v. Gavin Pardo & Gold's Gym, No. 165 MDA 2014, 2016 Pa. Super. 11 (Pa. Super. Jan. 22) (en banc), the Pennsylvania Superior Court affirmed a trial court's entry of summary judgment in favor of the defendant's on the basis of a waiver agreement signed by the injured party plaintiff as part of a membership at Gold's Gym.

The Pennsylvania Superior Court agreed with the trial court's decision that the waiver language set forth in the Gold's Gym membership agreement was valid and enforceable. Accordingly, the entry of summary judgment in favor of the defendant was affirmed.

In another recent decision by the Superior Court in the case of Toro v. Fitness International, 2016 Pa.Super. 243 (Pa. Super. Nov. 10), the Pennsylvania Superior Court again affirmed the entry of summary judgment in favor of a defendant fitness center on the basis of an executed waiver form in a slip and fall case.

As part of its decision, the appellate court ruled that a release or waiver of liability signed by the plaintiff when joining the health club was valid and binding. The court stated that, where someone engages in a voluntary athletic or recreational activity, a release in a contract for the use of the facilities is not contrary to public policy. The court also ruled that a waiver of liability in this regard was not a contract of adhesion because there is no requirement for anyone to engage in recreational activities. The court also referred to the oft cited rule that a failure to read a release or waiver language before signing it does not affect its validity.

Neuropsychological IMEs

In its decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9), the Pennsylvania Superior Court affirmed a trial court's granting of a defendant's motion for a protective order prohibiting the presence of third-party observers during the standardized test portion of a neuropsychological evaluation.

Following a motor vehicle accident that gave rise to this case, the plaintiff treated with a neuropsychologist and, during that treatment, the plaintiff's treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the plaintiff's attorney or any other third party. The defense hired a doctor to complete an independent neuropsychological examination. The plaintiff's counsel demanded to be present during all components of the neuropsychological examination. The IME doctor objected to this request, including the plaintiff's counsel's request to audio tape the testing evaluation.

The IME doctor indicated that he would allow the plaintiff's attorney to be present during the interview portion of the examination. However, the IME doctor would not permit either the presence of the plaintiff's counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant's right to counsel during a psychological examination.

On appeal the appellate court affirmed the trial court's order, which stated that, although plaintiff's counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing. The order further provided that no recording device would be permitted in the evaluation room.

The Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue. The court also found support for the trial court's decision under Pa. R.C.P. 4010, pertaining to physical and mental examination of person.

The Superior Court also noted that, although there was "no case law [that] address of the application of Rule 4012 to Rule 4010," the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive rule, which covers all depositions and all discovery. Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.

Sever and Stay Post-'Koken' Bad-Faith Claims

Over the past year there was a rising trend of motions to sever and stay bad-faith claims in post-Koken automobile litigation matters.

A split of authority continues in this regard, with some courts allowing the severance and the stay of bad-faith claims, some courts severing the bad-faith claim but not staying bad-faith discovery, and some other courts denying these types of motions altogether. Summaries of at least some of these decisions uncovered, most by order only and without opinion, can be found on the post-Koken scorecard on my "Tort Talk" blog at www.TortTalk.com.

It remains to be seen if this issue, as well as other important post-Koken issues will make it up the appellate ladder in the year ahead. As the lower courts and the bar are craving guidance in this still novel area of the law, it is hoped that the Superior Court would publish any of its decisions on these topics as opposed to offering unpublished decisions marked "nonprecedential."

'Tincher'

In 2016, the courts and the bar continued to grapple with how to apply the Pennsylvania Supreme Court's products liability decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), in which the court ruled that the Restatement (Second) of Torts continued to be the accepted guideline for such cases.

In Tincher, the Supreme Court more specifically held that the nondelegable duty in a strict liability case is that the a person or company engaging in the business of selling a product has a duty to make a product that is expected to and does reach its user without substantial change in the condition in which it is sold and free from a defective condition that is unreasonably dangerous to the user of the product.

The court also confirmed under Tincher, that to demonstrate a breach of duty in a strict liability matter, a plaintiff must prove that a manufacturer placed a defective product on the market. Under Tincher, a case of strict products liability requires proof, in the alternative, either of the ordinary consumer's expectations or of the risk-utility of a product.

The court in Tincher more specifically held that the consumer expectations test defines a "defective condition" as a condition, upon normal use, dangerous beyond the reasonable consumer's contemplations. In contrast, the risk-utility test offers a standard which, in typical common law terms, states that: "a product is in a defective condition if a 'reasonable person' would conclude that the probability and seriousness of harm caused by the product outweigh the burden of costs of taking precautions."

In the past year, there have been some motions for summary judgment granted and some denied on the basis of Tincher. The trial courts are also attempting to craft new jury instructions for trials of post-Tincher matters. It is anticipated that the Tincher decision will continue to have a significant impact in products liability litigation matters until the Pennsylvania Supreme Court has a chance to revisit the issue. •

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

Proper Parameters for Neuropsychological IME Addressed by Pennsylvania Superior Court

In its recent decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9, 2016 Panella, J. Ott, J., and Jenkins, J.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a Defendant’s Motion for a Protective Order prohibiting the presence of third party observers during the standardized test portion of a neuropsychological evaluation.  

According to the Opinion, this matter arose out of a motor vehicle accident.   Among the injuries claimed by the Plaintiff was cognitive harm allegedly triggered by the accident.   The Plaintiff treated with a neuropsychologist and, during that treatment, the Plaintiff’s treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the Plaintiff’s attorney or any other third party.  

During the course of the litigation, the defense hired a doctor to complete an independent neuropsychological examination.   Plaintiff’s counsel demanded to be present during all components of the neuropsychological examination.   The IME doctor objected to this request, including the Plaintiff’s counsel’s request to audio tape the testing evaluation.   The IME doctor pointed to an official statement of the National Academy of Neuropsychology as indicating that third party presence and/or audio taping during testing may represent a threat to the validity and reliability of the test data.   The IME doctor indicated that he would allow the Plaintiff’s attorney to be present during the interview portion of the examination.  However, the IME doctor would not permit either the presence of the Plaintiff’s counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

This proposed compromise by the IME doctor was not acceptable to Plaintiff’s counsel.  

The issue then came before the trial court, which entered an Order granting the Defendant’s request for protective order.  That order stated that, although Plaintiff’s counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the Plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing.   The order further provided that no recording device would be permitted in the evaluation room.  

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant’s right to counsel during a psychological examination.   As noted, on appeal, the Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue.  The court also found support for the trial court’s decision under Pa. R.C.P. 4010, pertaining to Physical and Mental Examination of Person.  

The Superior Court also noted that, although there was “no case law [that] address of the application of Rule 4012 to Rule 4010,” the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive Rule which covers all depositions and all discovery.   Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.  

The Superior Court went on to note that Rule 4012 did not empower the trial court to issue protective orders carte blanche.  Rather, the moving party still had the burden of showing “good cause” for the issuance of a protective order.   The court noted that the good cause standard “strikes an appropriate balance between competing interests, including a litigant’s privacy interest (however they be defined)…. and the court’s obligation to administer justice efficiently and prevent abuse of the discovery process.”   See Op. at 11 [citation omitted].  

Here, the Superior Court found that the Defendants had established good cause for the trial court’s issuance of the protective order.  In the end, the Superior Court found that the trial court’s decision represented a fair and thoughtful balance of both the patient’s interests and the presence of counsel during a neuropsychological examination and the court’s obligation to administer justice efficiently and to prevent abuse of the discovery process.   See Op. 12.   As such, the trial court’s order was affirmed as the Superior Court found no abuse of the trial court’s discretion in this regard. 

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

Additional Commentary: For one of the first decisions on this same issue with the same result (which decision actually predates and is cited by the trial court in its decision in Shearer), see Lackwanna County Judge Carmen D. Minora’s Opinion in the case of Marion v. Lukaitis in this Tort Talk post HERE.

UPDATE:  This decision was later vacated by the Pennsylvania Supreme Court who ruled that the Superior Court erred in considering the appeal in the first place as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court's order only met one of the three prongs of the collateral order doctrine. 

To view this decision by the Pennsylvania Supreme Court, click HERE.  The Concurring Opinion by Justice Wecht, and the Dissenting Opinion by Justice Mundy are not Linked here.

ARTICLE: A Year of Changes in Civil Litigation

This article of mine appeared in the December 15, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission:

A Year of Changes in Civil Litigation

Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly         
December 15, 2015            

               

There were a number of notable developments in Pennsylvania civil litigation law over the past year in terms of decisions and at least one rule change. Here's a look back at some of those changes in 2015.

Jurors and Social Media

Earlier this year, the Pennsylvania Supreme Court, in keeping up with the changing times, amended Rule 220.1, pertaining to "Preliminary Instructions to Prospective and Selected Jurors," by expanding the need to instruct jurors to refrain from researching the case at hand through social media.

Previously, these types of instructions were generally reserved for those jurors actually selected and sitting in the jury box at trial. The new amendments require the trial court judge to also provide such instructions to persons in the general jury pool even before they reach a particular courtroom for jury selection.

The amendments place emphasis on advising such jurors of the prohibitions against using computer or mobile devices in a manner that may violate the instructions of the court during trial, including instructions on not discussing or researching the case presented.

Statute of Limitations in Limited Tort Cases

In an interesting opinion in the case of Varner-Mort v. Kapfhammer, 109 A.3d 244 (Pa. Super. 2015), the Superior Court addressed the proper application of the statute of limitations and the discovery rule in the context of limited tort cases.

In Varner-Mort, the limited tort plaintiff filed suit after the expiration of the statute of limitation but argued, under the discovery rule, that she did not "discover" that she had a serious injury until some point in time after the accident such that the lawsuit was timely filed under an application of the discovery rule.

Despite noting that precedent in this regard was just "plain wrong," this panel of the Superior Court nevertheless reluctantly agreed to apply the discovery rule and reversed the entry of summary judgment in favor of the defendant on the statute of limitations issue.

Independent Medical Examinations

A number of trial court decisions were handed down over the past year pertaining to the permissible parameters of independent medical examinations (IMEs).

In the Lebanon County Court of Common Pleas case of Shearer v. Hafer, No. 2012-01286 (C.P. Leb. Co. March 17, 2015 Charles, J.), Judge Bradford Charles ruled in favor of a defense discovery motion to compel a neuropsychological IME, with the parameters being that the plaintiff's attorney would be allowed to be present during the preliminary interview phase by the doctor of the plaintiff but not thereafter.

In the case of Trojanowicz v. Ford Motor, No. 2013 - CV - 223 (C.P. Lacka. Co. Feb. 10, 2015 Minora, J.), Judge Carmen D. Minora, citing Pa.R.C.P. 4010, noted that whether or not to allow multiple examinations by an IME expert was a decision left to the broad discretion of the trial court. Given that the psychiatric IME doctor wrote in his initial report that he was able to come to accurate conclusions and opinions based upon the review he had completed to date, Minora found that additional testing would not be allowed.

In the case of Feld v. Primus Technologies, 2015 U.S. Dist. Lexis 55270 (M.D. Pa. April 28, 2015 Brann, J.), U. S. District Judge Matthew W. Brann of the Middle District Court of Pennsylvania relied upon Fed.R.E. 703 in ruling that defendants in tort litigation may rely upon, and refer to, independent medical examinations of the plaintiff prepared in separate worker's compensation proceedings. The court denied a plaintiff's motion in limine in this regard reasoning that, even though the previous IME reports may be arguably biased, those reports were the kind of records that a medical expert would typically and legitimately rely upon, i.e, the records of other doctors, in formulating their own opinions on the case presented.

Cross-Examination of Witnesses

In 2015, decisions were handed down clarifying the extent to which expert and lay witnesses could be impeached on cross-examination at trial.

In Flenke v. Huntington, 111 A.3d 1197 (Pa. Super. 2015), the Superior Court ruled that, while expert witnesses may be impeached for bias, including frequent work for the same side in litigation or for insurance carriers, there are limits to such cross-examination.

More specifically, the court limited the cross-examination of the expert to those issues germane to the case at hand and evidence of bias related thereto. As such, the court place certain limits on the extent to which an expert could be cross-examined on compensation earned in litigation matters.

With respect to lay witnesses, in a detailed order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co. Feb. 23, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a motion in limine filed by the plaintiff in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by the plaintiff's treating doctor that contained a positive result for marijuana use.

In his opinion, Nealon noted that questions which concerned the admissibility of evidence lie within with sound discretion of the trial court and would not be disturbed on appeal absent a clear abuse of that discretion. Nealon also held that evidence utilized to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred. The court relied upon the law that a witness may not be impeached or contradicted on a "collateral" matter.

In automobile accident personal injury case, the plaintiff denied, during her deposition testimony, that she used marijuana. The court precluded the defense efforts to cross-examine the plaintiff at trial with the plaintiff's drug screen that was positive for marijuana use.

In so ruling, Nealon noted that the Pennsylvania appellate courts have repeatedly held that "no witness can be contradicted on everything he testifies to in order to 'test his credibility.' The pivotal issues in a trial cannot be 'sidetracked' for the determination of whether or not a witness lied in making a statement about something that has no relationship to the case on trial."

Obamacare and the Collateral Source Rule

A recent trend in Pennsylvania personal injury matters involves defense counsel pointing to the Affordable Care Act to support an argument against any recovery of alleged medical expenses claimed by the plaintiff. The argument is that such expenses are or will be covered by insurance under the Affordable Care Act and therefore, they need not be awarded by a jury.

Plaintiffs argue that the well-settled collateral source rule should preclude any mention of any benefits from a collateral source in an effort to preclude or diminish the recovery of compensation from the alleged wrongdoer.

The issue of whether the defense in a personal injury litigation may refer to the Affordable Care Act during the course of a jury trial was addressed in the case of Deeds v. University of Pennsylvania, 110 A.3d 1009(Pa. Super. 2015). On appeal, the plaintiff argued, in part, that she was "entitled to a new trial because the trial court violated the collateral source rule when it 'improperly allowed [the defendants] to inform the jury that [the plaintiffs'] substantial medical needs were all being attended to at little to no cost to [the plaintiffs'] legal guardian due to the existence of state and federal education and medical benefits programs." The defense referred to Medicaid as well as to how Obama's Affordable Care Act would impact the future care costs in the case.

The Superior Court found these references at trial to be a patent violation of the long-standing collateral source rule, the purpose of which is to "avoid the preclusion or diminution of the damages otherwise recoverable from the wrongdoer based on compensation recovered from a collateral source," and, as such, remanded the case for a new trial.

Notable Shift in Bad Faith Cases

Representing a monumental shift in thinking in bad faith cases, in the case of Wolfe v. Allstate Property & Casualty Insurance, 790 F.3d 487 (3d Cir. 2015), the U.S. Court of Appeals for the Third Circuit ruled that it was not bad faith for a third party liability carrier not to include its insured's exposure to punitive damages in a settlement.

In Wolfe, the Third Circuit remanded an excess verdict bad faith case back for a new trial after ruling that the jury was impermissibly allowed to consider, in this subsequent bad faith claim, the amount of the punitive damages awarded against the tortfeasor at the trial of the underlying third party lawsuit.

In her opinion, Judge Marjorie O. Rendell wrote, "We predict that the Pennsylvania Supreme Court would conclude that, in an action by an insured against his insurer for bad faith, the insured may not collect as compensatory damages the punitive damages awarded against it in the underlying lawsuit. Therefore, the punitive damages award was not relevant in the later [bad faith] suit and should not have been admitted."

The Third Circuit in Wolfe notably stated that "[i]t follows from our reasoning that [a liability] insurer has no duty to consider the potential for a jury to return a verdict for punitive damages when it is negotiating a settlement of a case. To impose that duty would be tantamount to making the insurer responsible for those damages, which, as we have discussed, is against public policy."

A Look Ahead in Post-'Koken' Matters

Another year has passed without an opportunity for the appellate courts to address any of the novel procedural and substantive legal issues that challenge the commonwealth's trial court judges. Hopefully, the next year will be the one where these issues begin to go up the appellate ladder and result in appellate guidance that will serve to assist both the bench and the bar. •


Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins can be reached at dancummins@comcast.net.

Another Trial Court Crafts Another Remedy for Parameters of Neuropsychological IMEs

Another trial court decision regarding the permissible parameters of a neuropsychological examination is the Delaware County 1case (from a year ago) of D'Aurizio v. Rota, No. 2013-008170 (C.P. Del. Co. Dec. 2, 2014 Green, J.).

In this Order without Opinion, the court ordered the plaintiff to attend the neuropsychological IME but also mandated that the plaintiff's attorney would be permitted to be present during the interview portion of the exam and that the testing portion of the neuropsychological exam could be videotaped but without an audio component.

The defense was also ordered to share any neuropsychological testing data with the plaintiff's expert after the completion of the exam.

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

Here's a LINK to a Pennsylvania Law Weekly article of mine two years ago on the topic.

To review other more recent Tort Talk posts on the permissible parameters of neuropsychological IMEs as determined by trial courts from around the Commonwealth in the absence of appellate guidance, click HERE and HERE.

I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.

Trial Court Reaffirms Ruling Allowing Plaintiff's Attorney At Neuropsychological IME; But Court Also Allows for Immediate Appeal of Issue

In the case of Romagnoli v. Westmoreland Reg. Hosp., No. 1514 of 2011 (C.P. Westmoreland, Aug. 26, 2015 Marsili, J.) Judge Anthony G. Marsili denied a Defendant's Motion for Reconsideration of a prior Order entered in the same case allowing Plaintiff to have counsel or representative present at independent neuropsychological examination.  The court also reaffirmed its prior decision to allow the Plaintiff to make an audio or stenographic recording of examination.

However, noting the split of authority on the issue, the Romagnoli court granted the defense an immediate right of appeal to have the appellate court address the question presented.

Anyone wishing to review the court's decision in Romagnoli may click this LINK.

I send thanks to Attorney Patrick J. Loughren of the Pittsburgh law office of Loughren, Loughren & Loughren, P.C. for bringing this decision to my attention.

Trial Court Addresses Questionnaires/Pain Diagrams for IMEs

The Dauphin County Court of Common Pleas recently addressed the issue of whether a Plaintiff is required to fill out a questionnaire and/or a pain diagram relative to an IME in the case of Maguire v. Liberty Mut. Group, No. 2014-CV-1036 (C.P. Dauph. Co. June 1, 2015 Bratton, J.).

In this motor vehicle accident matter, the Plaintiff was set up for an IME and the IME vendor company sent an IME Questionnaire and a MVA and Pain Diagram form to be filled out by the Plaintiff prior to the IME.  The Plaintiff objected to these documents as impermissible discovery sent by a non-party.  The defense asserted that these documents were a normal part of a physical examination by a physician and were permitted under Pa.R.C.P. 4010.  The issue was then brought before the court for resolution.

Reviewing the wording of Rule 4010, Judge Bratton noted that the Rule provides that "oral interrogation" of the person to be examined is allowed on issues germane to the claims of damages presented.  Based on this plain wording of Rule 4010 and the absence of any rule allowing a non-party to propound discovery in a litigation, the court sustained the Plaintiff's objections to the pre-IME documentation at issue.

Anyone wishing to secure a copy of this Maguire decision by Judge Bratton may contact me at dancummins@comcast.net.

I send thanks to the prevailing Plaintiff's Attorney Robert Claraval of the Harrisburg, PA law firm of Claraval & Claraval for forwarding a copy of this decision to my attention.

ARTICLE: TO CALL OR NOT TO CALL: Dilemma Created by Unfavorable Expert Report

At times, a defense expert report unfavorable to the defense position comes in the mail that makes a case more troublesome, or in some cases, easier, to settle.  Where such a case instead proceeds to trial, a Defendant may choose not to call the IME doctor as a trial witness and issues arise over the extent to which a Plaintiff may attempt to utilize the defense expert's report to further the Plaintiff's case-in-chief.

An article of mine entitled "To Call or Not to Call: Dilemma Created by Unfavorable Expert Report" addressing these issues was recently published in the Spring 2015 edition of the Civil Litigation Update (Vol. 19, No. 2 Spring 2015) issued by the Civil Litigation Section of the Pennsylvania Bar Association.

Anyone wishing to review this article may click this LINK..

Parameters for Neuropsychological IME Set in Lebanon County Case

In the Lebanon County Court of Common Pleas case of Shearer v. Hafer, No. 2012-01286 (C.P. Leb. Co. March 17, 2015 Charles, J.), Judge Bradford Charles ruled in favor of a defense discovery motion to compel a neuropsychological IME, with the parameters being that the Plaintiff's attorney would be allowed to be present during the preliminary interview phase by the doctor of the Plaintiff but not thereafter.

The court ruled that once the standardized testing portion of the neuropsych IME began, no one other than the doctor and the Plaintiff would be allowed in the room and no recording device would be permitted in the room.

The court also ruled that, once the IME was completed, the Plaintiff's attorney would be entitled to a copy of the standardized testing that was completed.

Anyone desiring a copy of this Order may click this LINK

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

UPDATE:  This decision went up to the Superior Court and then to the Supreme Court of Pennsylvania.  The Pennsylvania Supreme Court ruled that the Superior Court erred in considering the appeal in the first place as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court's order only met one of the three prongs of the collateral order doctrine. 

To view this decision by the Pennsylvania Supreme Court, click HERE.  The Concurring Opinion by Justice Wecht, and the Dissenting Opinion by Justice Mundy are not Linked here.


For other neuropsychological IME decisions summarized on Tort Talk, click HERE and HERE.

Article Notes Potential For Ghostwriting of Expert Reports Under the Protection of Barrick v. Holy Spirit Hospital

Here is a LINK to an excellent article by Attorney Will Sylianteng of the Doylestown office of WES Litigation that appeared in the February 17, 2015 edition of the Pennsylvania Law Weekly and is entitled "District Court Sanctions Attorney for Ghostwriting Expert Report."

In reference to a case involving sanctions applied to an attorney in a Michigan federal court case, Attorney Sylianteng analyzes the pros and cons of the Pennsylvania court decisions in the case of Barrick v. Holy Spirit Hospital which limits discovery of communications between an attorney and a retain expert.

In his article, Attorney Sylianteng notes that while some members of the bar favor the Barrick decision, others have denounced the ruling (I'm not alone!) as opening the door for "unscrupulous [attorneys] to mold, if not create, their own expert's opinions."



If you are unable to access this interesting article via the link above please let me know and I will send you a copy.

I note that I was the writer of the Pennsylvania Defense Institute's amicus briefs at the Superior Court level in Barrick.  Click HERE to review my later May 6, 2014 Tort Talk article on the same topic entitled "A Sad Day for the Truth."

Additional Testing for Psych IME Denied by Judge Minora

In  a recent February 10, 2015 decision in the case of Trojanowicz v. Ford Motor Co., No. 2013 - CV - 223 (C.P. Lacka. Co. Feb. 10, 2015 Minora, J.), Judge Carmen D. Minora addressed issues raised by a Defendant in a motion to compel a Plaintiff to undergo additional testing requested by an Independent Psychiatric Medical Examiner in a personal injury matter arising out of a motor vehicle accident.

In this matter, the defense referred the Plaintiff to a psychiatric IME to address the Plaintiff's complaints of post-traumatic stress disorder.  The Plaintiff completed an examination with the defense expert.  The defense filed a motion to compel the Plaintiff to undergo additional psychiatric tests as part of, and to complete, the IME process.

The Plaintiff countered by arguing that the tests were not medically necessary, that the test were not identified to Plaintiff's counsel prior to the evaluation, and that the tests were not even going to be completed by the evaluating psychiatrist.

Judge Carmen D. Minora
Lackawanna County

Judge Minora essentially denied the Defendant's appeal from the decision of the Lackawanna County Special Trial Master as untimely but went on to note how he would have ruled on the merits.  As such, Judge Minora's findings noted below are arguably dicta.

Citing to Pa.R.C.P. 4010, Judge Minora noted that whether or not to allow additional examinations was a decision left to the broad discretion of the trial court.  Given that the psychiatric IME doctor wrote in his initial report that he was able to come to accurate conclusions and opinions based upon the review he had completed to date, Judge Minora found that additional testing would not be allowed.

With respect to the defense argument that there would be no prejudice to the Plaintiff in allowing for additional testing, Judge Minora pointed out that prejudice to the Plaintiff was not a part of the analysis in the determination of whether to require the Plaintiff to submit to an IME.

The court also accepted as valid the Plaintiff's objections noted above with respect to the lack of notice being provided as to the type of testing, the identity of the person performing the testing, and that the additional testing was not medically necessary.


Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.


I send the prevailing Plaintiff's attorney, Christine Lezinski, Esquire of the Scranton, PA law office of Lenahan & Dempsey for forwarding this decision to my attention.

Updates, Trends and Thoughts Regarding Pennsylvania Civil Litigation Law

by Northeastern Pennsylvania Insurance Defense Attorney Daniel E. Cummins