A Word of Caution: Put All Objections On the Record At Trial, And Be Specific on the Nature of the Objection

In the case of Frisch v. James River Ins. Co., No. 1520 EDA 2020 (Pa. Super. Oct. 20, 2021McLaughlin, J., King, J., Pellegrini, J.) (Op. by King, J.), the Pennsylvania Superior Court ruled in a post-Koken case that a Defendant was not entitled to a new trial based upon the trial court’s failure to re-read to the jury the standard instructions for both pre-existing conditions and factual cause.

The Superior Court noted in its Opinion that, based upon the agreement of litigants, the court re-read to the jury only the instructions for pre-existing conditions after a request for the same was made by the jury during their deliberations.

However, the court noted that the Defendant had not objected at the time of trial regarding the trial court’s failure to read the factual cause instruction as well.

During the post-trial proceedings, Defendant argued that the jury might have been confused by the instructions for pre-existing conditions in the absence of the instruction regarding factual cause.

The Court rejected the request for a new trial and noted, in part, that Pa.R.C.P. 227(b) requires that "all exceptions to the jury charge shall be taken before the jury retires."    The appellate court noted that the failure of a party to raise a specific objection on the record results in a waiver of the issue.

The court otherwise addressed delay damages in this case as well and reviewed the current status of the law in Pennsylvania in that regard.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 16, 2021).

Photo by Ekaterina Bolovtsova from www.pexels.com.

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.

Pennsylvania Superior Court Issues Cautions For Preserving Record and Issues for Appeal

In the case of Hassel v. Franzi, No. 2019 Pa. Super. 109 (Pa. Super. April 8, 2019 Stevens, P.J.E., Olson, J., Dubow, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court noted that a failure to include record citations in party’s statement of issues in appellate filings, so that the appellate court could establish that the objections asserted were made and what was objected to, amounts to a waiver of the issues on appeal.  

The Superior Court noted that “[i]t is axiomatic that when a court has to guess what issues a Defendant is appealing, that is not enough for meaningful review.”  See Op. at 12.  

In this regard, the court noted that this matter involved an eight (8) day trial and that the appellate only initially provided the court with notes of testimony from portions of the trial.   The Superior Court noted that the Superior Court’s Prothonotary completed an extensive effort to ascertain the remaining notes of testimony.   In its Opinion, the court reminded the appellant of its duty to ensure that the Superior Court receives all of the documents necessary to review the issues raised on appeal.   See fn. 1 at p. 13.    

The court additionally noted in this Opinion that any objections concerning an expert exceeding the scope of an expert report and/or the scope of direct examination must be specifically stated or will be considered to be waived on appeal.  

This case arose out of a medical malpractice action.  

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 the Reed Smith law firm for bringing this case to my attention.  

Pennsylvania Supreme Court Provides Lesson on Preserving Objections Relative to Jury's Verdict

In the case of Stapas v. Giant Eagle, No. 44 WAP 2017 (Pa. Nov. 21, 2018) (Op. by Mundy, J.), the court considered whether the Defendant was required to object to the jury’s verdict prior to the time the jury was discharged in order to preserve its challenge to the verdict.  

In the end, the Court ruled that the defense had waived its objection by failing to lodge an appropriate objection to the jury's alleged improper inclusion of future lost wages in the verdict when no evidence had been presented at trial in support of such a claim.  As such, a $2.1 million dollar verdict in favor of the Plaintiff who had been injured as a result of a shooting on the Defendant's premises.

The Defendant had labeled its challenge as a claim that the verdict was against the weight of the evidence in its Post-Trial Motion.  The Court noted that this type of claim does not ripen until after the verdict and is based upon a challenge to a jury's consideration of competing evidence (here there was no evidence presented in favor of a future wage loss claim).

The Pennsylvania Supreme Court ruled in this case that, where an objection to a jury’s verdict is premised upon trial errors which are capable of being corrected before the jury is discharged, those objections must be raised before that jury is discharged. 

Accordingly, the Supreme Court reversed the Superior Court’s Order awarding the Defendant a new trial on damages.  

Anyone wishing to review the Majority Opinion by Justice Mundy may click this LINK.  The Dissenting Opinion by Justice Dougherty can be viewed HERE.

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