In the case of Berklovich v. Quarrick, No. 2567-CV-2018 (C.P. Westmoreland Co. 2020 Scherer, J.), the court granted a defendant's Motion for Partial Summary Judgment and dismissed a Plaintiff's claim for punitive damages based upon allegations of excessive speed and cell phone use by the defendant during a motor vehicle accident.
According to the Opinion, the Plaintiff was rear ended and, as a result, her vehicle was propelled forward across two lanes of traffic.
After discovery, the defense filed a partial motion for summary judgment seeking a dismissal of the punitive damages claims. The court granted the motion.
While the court agreed that driving at an excessive rate of speed and using a cell phone could constitute conduct sufficient to support a claim for punitive damages, the court also found that the Plaintiff had not presented sufficient evidence to support such a claim.
The court noted that the only testimony on the speed of the defendant's vehicle was from the Plaintiff. The Plaintiff admitted that she only saw the defendant's vehicle a split second before the impact. Relying upon the case of Guzman v. Bloom, 198 A.2d 499, 502 (Pa. 1964) and the case of Anderson v. Perta, 10 A.2d 898 (Pa.Super. 1940), the court ruled that observing the defendant's vehicle for such a short amount of time before the accident did not lay a proper foundation for the Plaintiff to offer her lay opinion as to the speed of the defendant's vehicle.
On the issue of the defendant's cell phone use, the court noted that the Plaintiff did not secure the defendant's cell phone records or otherwise present evidence to confirm that the defendant was using his phone at the time of the accident. The court rejected the Plaintiff's effort to rely upon an allegation in the Complaint that the defendant was unconscious after the accident and had no recollection of whether he was on his cell phone at the time of the accident or not.
Anyone wishing to review this case may click this LINK.
I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this decision to my attention.
In the case of W.C. v. Janssen Pharmaceuticals, Inc.,
2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by
Panella, J.), the court ruled that allowing counsel to use powerpoint slides as
a visual aid during closing argument was not an abuse of discretion by the
trial court.This was particularly so
given that the court found that the slides did not misrepresent the evidence
presented at trial.
The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.
Notably, the court also held that
opposing counsel had no right to review the materials used in an opponent’s
closing argument prior to the presentation of the same.
This decision is otherwise
notable for the Superior Court’s decision that the trial court should have
required clarification as to which part of a witness’s testimony was lay opinion
testimony and which part was expert opinion testimony where that single witness
gave both types of opinion testimony.The Superior Court found that, since no clarification was given at the
trial court level, this was reversible error.
Anyone wishing to review a copy
of this decision may click this LINK.
I send thanks to Attorney James
M. Beck of the Philadelphia office of Reed Smith and the writer of the Drug and
Device Law Blog for bringing this case to my attention.
In his recent 71 page Opinion in the case of Horst v. Union Carbide Corp. et al., No. 15 CV 1903 (C.P. Lacka. Co. April 27, 2016 Nealon, J.), Judge Terrence R. Nealon tackled a variety of issues raised in motions for summary judgments filed by twelve different defendants.
The Opinion contains useful nuggets of analysis addressing unique case law establishing special standards for medical causation, lay opinion testimony, the statute of repose, and punitive damages in asbestos litigation.
Anyone wishing to review this Horst decision may click this LINK.
Limitations on Cross-Examination of Lay and Expert Witnesses
By Daniel E. Cummins, Pennsylvania Law Weekly
Editor's note: The author served as defense counsel in Detrick v. Burrus.
It is well settled that "the purpose of ... civil trials is to discover the truth" of the claims and defenses presented by the parties, as the court held in Bailey v. Tucker, 621 A.2d 108, 113 (Pa. 1993). It is equally well settled that, in the search for the truth at trial, it is for the jury to determine the credibility of the witnesses, including expert witnesses, along with the weight to be given to the testimony of any witness presented, as in Ludmer v. Nernberg, 640 A.2d 939, 942 (Pa. Super. 1994).
The most important tool provided to a litigant to test the credibility of parties, witnesses and expert witnesses at trial, and thereby challenge the truth of the adversary's claims, is the right to conduct a thorough and cutting cross-examination.
Given the adversarial nature of trials, issues often arise pertaining to the extent to which a witness can be cross-examined. Recent cases reviewed below confirm that there are indeed some limits to efforts to attack the credibility of both lay and expert witnesses at trial.
Scope of Cross-Examination Not Unlimited
Pennsylvania Rule of Evidence 607(b) provides the general rule that "the credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these rules."
Two recent court decisions illustrate the extent to which a court may limit the scope of a cross-examination of a lay witness or party, as well as the cross of an expert witness, at trial.
Limitations on Cross
In his recent detailed order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co. Feb. 23), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed a motion in limine filed by the plaintiff, Lori Detrick, in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by Detrick's treating doctor which contained a positive result for marijuana use.
Given that Detrick had denied any marijuana use under oath at her deposition, the defense planned to cross-examine her with respect to a urine drug test that was positive for marijuana, to attack her credibility as part of the overall search for the truth of the claims and defenses asserted by the parties at trial.
Citing Pennsylvania Rules of Evidence 401 and 403, pertaining to relevancy, Detrick contended that any evidence of the drug test was inadmissible because it was irrelevant and unduly prejudicial.
In addition to being relevant to attack the credibility of Detrick, who denied marijuana use under oath at her deposition, the defendant, Deidre Burrus, separately asserted that the evidence of the urine drug screen tests ordered by Detrick's post-accident doctor was also relevant to show that her own post-accident treating providers had serious concerns as to her use of prescription narcotic medications, such that the doctor felt it necessary to order a drug screen before prescribing medications to her.
In his opinion, Nealon noted that questions concerning the admissibility of evidence lie within the sound discretion of the trial court. In granting Detrick's motion in limine to preclude this evidence, the court relied upon the law that a witness may not be impeached or contradicted on a "collateral" matter.
Nealon noted that it is a well-settled principle of Pennsylvania law that "the purpose of trial is not to determine the ratings of witnesses for general veracity." The court reasoned 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 court in Detrick also more specifically cited to a criminal court case holding that "general questioning concerning the use of drugs does not bear on the witnesses' 'character for truth.'"
The court also found that, even if such evidence was somehow relevant, this evidence was inadmissible under Rule 403, since its probative value was outweighed by the danger of unfair prejudice to Detrick.
The case, which was not appealed, therefore supports the notion that the permissible scope of a cross-examination of a party or lay witness is not unlimited. As noted below, the same rule prohibiting the cross-examination of a witness on collateral matters was recently applied in the context of expert witnesses.
Cross of an Expert Witness Also Has Limitations
By way of background, a few years back, a hot trend in Pennsylvania civil litigation matters involved the extent to which parties could discover information as to the extent of litigation-related activity by, and compensation for, opposing expert witnesses. Such discovery was gathered to be utilized at trial to expose experts as biased witnesses, or "hired guns," for the opposing side.
Over the years, since the handing down of appellate court decisions in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), and Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007), allowing such discovery in limited circumstances, litigating attorneys gathered a treasure trove of such bias information pertaining to experts. Attorneys on both the defense and the plaintiffs side of the bar have amassed and shared such information on various experts, to the point that the information has become quite extensive with respect to certain experts.
Now that such voluminous discovery of litigation-related activity and compensation has been gathered on certain experts, the question has become to what extent all that information can be fairly utilized to cross-examine an expert at trial.
In its recent decision in Flenke v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015), the Superior Court ruled on the extent to which an expert may be cross-examined at trial with such large quantities of bias information discovered on that expert.
The Flenke case arose out of a motor vehicle accident. The question presented centered around the plaintiff's cross-examination of the defense's independent medical expert.
The Superior Court ruled that, while expert witnesses may generally be impeached for bias, including frequent work for the same side in litigation, there are limits to such cross-examination imposed by the law.
Under the well-established rule of law that holds that a witness cannot be cross-examined on collateral matters, the court in Flenke noted that even bias evidence can become too intrusive and so collateral, such that it should be limited, or even barred, at trial.
In Flenke, the plaintiff was permitted to cross-examine the defense expert as to the compensation earned by the expert in the case at hand, as well as other cases, within a reasonable limitation.
Yet, the Superior Court found that the plaintiff's effort to conduct a detailed review of the defense expert's 50 most recent reports involving other persons would have introduced collateral issues into the case. As such, this evidence was found to have been properly excluded by the trial court.
The court in Flenke also ruled that cross-examination pertaining to the expert's work for the defendant's insurance company was properly excluded, as it would have introduced the impermissible topic of insurance into the case.
Based upon the above cases, the extent to which the veracity of lay and expert witnesses can be tested at trial has some limitations. It appears that, under Pennsylvania law, while a witness can be exposed as a liar, liar, one cannot go so far as to symbolically light that witness' pants on fire.
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.
In Dougherty v. Heller, No. 443 EAL 2014 (Pa. Feb. 4, 2014), the Pennsylvania Supreme Court has issued an order agreeing to review several issues raised with respect to a request to videotape a pre-trial deposition of a witness in a defamation action.
Obviously, the Court's ruling on this issue will have an impact on the increasing trend of the Plaintiff's bar videotaping the depositions of party defendants in personal injury actions.
The Court's Order outlining the issues it will determine can be viewed HERE.
The Superior Court's en banc Majority Opinion can be viewed HERE (or at 97 A.3d 1257), and the Concurring and Dissenting Opinion HERE.
In the case of Melgar
v. Weinstein, No. 3:12-cv-1916 (M.D. Pa. May 23, 2014 Caputo, J.), Federal Middle District Judge A. Richard Caputo
denied summary judgment in an automobile accident negligence matter based upon
disputed testimony regarding the speed of the vehicle involved in the
accident.
This case is notable for the acknowledgement by the court that lay
witnesses may testify regarding vehicle speed generally and without the need for precise accuracy in stating the speed witnessed.More specifically, in this matter, there is deposition testimony that
the speed limit was 45 mph and there were witnesses that stated that the
vehicles involved were moving at approximately 50-60 mph at the time of the accident in a
tunnel.
Anyone wishing to review this Opinion may click this LINK.
