Pennsylvania Superior Court Reviews Discovery Issues Involving Attorney-Client Privilege and Work Product Doctrine

In the case of Holland v. The Physical Therapy Inst., No. 1515 WDA 2021 (Pa. Super. March 17, 2023 Olson, J., Dubow, J., and Collins, J.), (Op. by Collins, J.) [non-precedential], the court addressed several discovery issues and the issue of whether an appeal from a discovery order is appropriate.

With regard to the ability of a party to appeal from a discovery order, the court noted that, generally, discovery orders are deemed interlocutory and are not immediately appealable, because they do not serve to dispose of the litigation in its entirety. 

Yet, discovery orders that require the disclosure of privilege materials are generally found to be appealable under Pa. R.A.P. 313 where the issue of privilege is separable from the underlying issues presented.

Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.

On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.

The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.

In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.

The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.

The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.

The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).

OPEN THE VAULT: Court Allows Discovery of Bank Records of Defendant in Punitive Damages Case

In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Oct. 14, 2022 Nealon, J.), the court addressed discovery motions relative to the scope of permissible discovery of financial assets of a Defendant relative to a punitive damages claim in a personal injury case.

According to the Opinion, this case involved a professional liability action alleging reckless and negligence relative to alleged acts and/or omissions by the Defendants at a senior living facility which allegedly caused the death of the Plaintiff’s decedent.

After the Defendant’s separate Motion for Summary Judgment on the punitive damages claims was denied, the Plaintiff sought additional discovery on the Defendant’s financial assets over and above the tax returns that the Defendant had previously produced. In part, the Plaintiff was seeking to gather bank records in an effort to discover more detailed information on the financial worth of the Defendant.

Judge Nealon overruled the defense objections to the discovery requests and found that the Plaintiff was entitled to discover the most accurate and detailed financial documentation and information that reflects the exact amount by which the Defendant’s assets exceeded its liabilities. 

The court noted that the tax records and balance sheets previously produced by the Defendant may not fully demonstrate the Defendant’s net worth with sufficient precision and completeness.

The court therefore allowed the Plaintiff to gather the relevant bank records since a borrower seeking financing from a bank is likely to portray its financial position in a positive light in an effort to secure the requested funding. The court found that the Defendant’s representations of its assets to the bank would likely assist in this regard.

As such, the court ruled that the Defendant had not satisfied its burden of demonstrating that the requested materials were not discoverable under the liberal discovery allowed in Pennsylvania Rules of Civil Procedure. 

Accordingly, the court granted the Plaintiff’s Motion to Strike the Defendant’s Objections to the subpoenas that were addressed to the Defendant’s bank. However, the court limited the subpoenas to only require the production of records within the past three (3) years. The court additionally required the execution of a confidentiality agreement between the parties restricting the dissemination of the materials obtained.

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

Source of image:  Photo by Brock Wegner from www.unsplash.com.

 

Court Rules that Party Cannot Be Compelled To Produce That Which They Do Not Possess

In the case of Fost v. Kennedy, No. 5:21-CV-03262-JMG (E.D. Pa. July 11, 2022 Gallagher, J.), the court addressed various discovery issues in response to a Motion to Compel filed in a trucking accident case.

In its decision, the court ruled that a Plaintiff is entitled to timely answers to its punitive damages discovery.

However, the court also noted that a Defendant cannot be compelled to produce documents that do not exist.

The court otherwise found that the Plaintiff’s demand for hundreds of hours of videotape of the employee’s truck driving was denied as being disproportionate.

The court additionally found the Plaintiff’s request for the production of information regarding similar incidents for years predating the hiring of the employee that the Plaintiff’s claims were negligently hired was also disproportionate.

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


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

Judge Mariani of Federal Middle District Court Addresses Issues Regarding Punitive Damages Discovery

In the case of Kozlowski v. JFBB Ski Areas, Inc., No. 3:18-CV 353 (M.D. Pa. May 13, 2020 Mariani J.), the court addressed issues pertaining to punitive damages discovery in a skiing accident case. 

In this Opinion, the court ruled that a Plaintiff does not have to specifically pled punitive damages in order to seek such damages. The court also note that a Plaintiff is not required to produce evidence of the Defendant’s financial condition in order to pursue the punitive damages claim. Rather, the financial condition of a Defendant is but one factor in the punitive damages analysis. 

In this matter, Judge Mariani denied the Plaintiff’s Motion to Compel the production of financial evidence as the motion was found to be untimely under the discovery schedule previously set by the court. The court found that the Plaintiff had failed to show good cause for belated financial discovery. It was emphasized that the Plaintiff had previously agreed to a trial date without any mention for the need for additional discovery. 

The court noted that reopening discovery would prejudice the Defendant, who had already filed Motions In Limine with the court for purposes of trial. 

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

Judge Nealon of Lackawanna County Recites the Law of Invitees, Licensees, and Trespassers

As noted in the case below, a plaintiff's ability to recover in a premises liability case may turn on whether that plaintiff is deemed to be a business inviteee, licensee, or a trespasser.

In the case of Giles v. Pennsylvania American Water Co., No. 17-CV-5616 (C.P. Lacka. Co. Jan. 23, 2020 Nealon, J.), the court addressed Preliminary Objections filed by a landowner Defendant in a case involving a minor Plaintiff who was allegedly injured as a result of a fall on the Defendant’s property surrounding a reservoir.

In his Opinion, Judge Terrence R. Nealon provided a detailed recitation of the current status of premises liability law and the issues of whether a Plaintiff may be deemed as an invitee, licensee, or trespasser under the care presented. In this matter, the issue appeared to center around whether the Plaintiff was a licensee or a trespasser.

Finding that the Plaintiff had alleged sufficient facts to get beyond a demurrer, the court denied the Defendant’s Preliminary Objections in this regard.

The court also denied the Preliminary Objections filed by the Defendant against the Plaintiff’s general allegations of reckless and willful conduct.

Judge Nealon once again ruled, as he has done on numerous occasions in the past, that such claims may be generally pled under the Pennsylvania Rules of Civil Procedure.

The court noted that, upon the completion of discovery, the Defendant could test the of the validity of the punitive damages claim by way of a Motion for Summary Judgment.

The court also noted that the Plaintiffs would not be able to obtain any financial wealth discovery against the Defendant under Pa. R.C.P. 4003.7 unless the Plaintiff first demonstrated a prima facie right to recover punitive damages under Pennsylvania law.

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


If you need help bringing your premises liability case to close by way of a settlement at a Mediation, please do not hesitate to contact me to schedule a Mediation with Cummins Mediation.  I can be reached at dancummins@cumminslaw.net or at 570-319-5899.

Allegations of Liability of Unnamed Agents, Recklessness, and Punitive Damages Allowed to Proceed in a Podiatric Malpractice Action

In the case of Latka v. Rieder, No. 2019-CV-2078 (C.P. Lacka. Co. July 22, 2019 Nealon, J.), the court addressed Preliminary Objections filed in a podiatric malpractice case.  The Defendant sought to strike the agency allegations for failing to identify the actual or ostensible agents by name along with other details.  The Preliminary Objections were also asserted against the Plaintiff’s allegations of recklessness and reckless indifference along with the claim for punitive damages.

According to the Opinion, the Plaintiff developed an infection after a foot surgery performed by the Defendant.   Treatment of the infection included a partial amputation.  

The Plaintiff sued the podiatrist in a malpractice action and also asserted claims against “the agents, ostensible agents, servants, workers and/or employees” of the podiatrist.   Additionally, in her prayer for relief, the Plaintiff sought to recover punitive damages based upon allegations of recklessness.  

The Defendant podiatrist filed Preliminary Objections seeking to strike the Plaintiff’s agency allegations, recklessness allegations and punitive damages claims as lacking sufficient factual specificity.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the law establishing Pennsylvania as a fact-pleadings state but not requiring that all evidence in support of a claim be set forth in the Complaint.

The court noted that , in the context of Preliminary Objections asserting the lack of sufficient specificity, the test is whether the Defendant has been provided with adequate notice of the claim against which it must defend.  

With regards to the Plaintiff’s general agency complaints against unnamed agents and employees of the named Defendant, the court noted that, under current Pennsylvania appellate law, the failure to identify a Defendant’s agent by name, or the designation of those individuals as a unit, does not justify striking agency allegations in a Complaint.  Judge Nealon also noted that the Defendant’s efforts to strike agency claims for failing to identify the actual or ostensible agents by name in medical malpractice actions has been consistently rejected in Lackawanna County (citing numerous cases).  

In the end, the court noted that the names and responsibilities of the Defendant’s alleged agents can be ascertained during discovery. As such, the Preliminary Objections in this regard were denied.

Relative to the Plaintiff’s allegations of recklessness and the Plaintiff’s punitive damages claims, the court emphasized that punitive damages are only appropriate when an individual’s actions are of such outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

The court noted that wanton or reckless conduct covers instances where the actor has intentionally done an act or an unreasonable character in disregard of a risk known to him or her or so obvious that he or she must be taken to have been aware of it, and so great as to make it highly probable that harm would result.   The court otherwise noted that allegations of merely negligence or even gross negligence, do not suffice to support a punitive damages claim.   

Judge Nealon turned to Pa. R.C.P. 1019(b), along with case law construing that Rule, to support a conclusion that recklessness is a condition of the mind that may be averred generally in pleadings in appropriate circumstances.

Judge Nealon went on to cite numerous Lackawanna County cases in which Preliminary Objections seeking to dismiss punitive damages claims on the basis of factual insufficiency have been uniformly rejected except in cases where the Complaint generally alleged willfulness, wantonness, or recklessness without supporting facts.   

After a review of the allegations in the Complaint in this matter, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s allegations of reckless conduct and the Plaintiff’s related claim for punitive damages. 

The court noted that the Defendant retained the right to challenge the validity of these claims by way of a Motion for Summary Judgment.   

The court additionally emphasized that the Plaintiff may not obtain any financial worth discovery from the Defendant doctor under Pa. R.C.P. 4003.7 unless and until the Plaintiff demonstrated a prima facie right to recover punitive damages.  

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

Judge Nealon of Lackawanna County Addresses Request for Financial Worth Discovery in Punitive Damages Case

In the case of Charlesworth v. Galacci, No. 2014-CV-3390 (C.P. Lacka. Co. Sept. 19, 2017 Nealon, J.), the trial court in Lackawanna County addressed the merits of a Plaintiff's motion for punitive damages discovery in a dog bite case.

Judge Nealon reviewed the Plaintiff's motion for leave of court to gather such discovery on the Defendant's financial worth under the standards set forth under Pa.R.C.P. 4003.7 and the case of Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 803 (Pa. 1989).  The court ruled that the Plaintiff made a proper prima facie showing of a valid punitive damages claim in support of the request for the discovery order.  As such, the request for financial worth discovery was allowed.

The court also looked past the fact that the Plaintiff's motion was filed after a Certificate of Readiness had been filed.  While the court noted that, generally speaking, requests for discovery after the filing of a Certificate of Readiness are frowned upon, in this case the Defendants had also conducted discovery after the filing of the Certificate.  Moreover, the court also noted that it found no prejudice to the defense in allowing the discovery as the requested information was relevant to the jury's consideration of potential punitive damages to possibly be awarded.

While discovery of the Defendant's financial worth was allowed, the court did order that any information disclosed must be kept confidential and could only be disclosed as may be necessary for trial purposes, including the provision of such information to expert witnesses.

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

Federal Court Rules on Propriety of Financial Wealth Discovery in Punitive Damages Cases

In the case of N’Jai v. Bentz, Civil Action No. 13-1212 (W.D. Pa. Nov. 24, 2015 Fischer, J.), the court denied a Plaintiff’s Motion to Compel relative to a punitive damages claim.

In so ruling, the federal court asserted that a Plaintiff is not automatically entitled to discovery of a Defendant’s financial wealth simply by successful pleading a punitive damages claim.  Rather, the court noted that a Plaintiff must go beyond the pleadings and produce prima facie evidence to show a right to recover punitive damages before a court would permit such financial wealth discovery.  

Stated otherwise, the court found that financial wealth discovery is not appropriate in a civil litigation matter until there is a reasonable evidentiary basis to show that a Plaintiff’s punitive damages claims can be submitted a jury.  

Anyone wishing to review this case online may click this LINK.

 

I thank Attorney James M. Beck of the Philadelphia office of Reid Smith for bringing this case to my attention.

 

Judge Terrence R. Nealon of Lackawanna County Addresses Prerequisites for Discovery on Defendant's Finances in Punitive Damages Case

In his recent March 9, 2012 detailed Ordered issued in the case of Genevich v. T.S.E., Inc. Utility & General Contracting, No. 09-Civil-5119 (C.P. March 9, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issues presented by a Plaintiff’s “Motion for Leave to Conduct Punitive Damages Discovery (Financial Work Discovery) of a Defendant in a Personal Injury Litigation.”

This matter arose out of an accident that occurred while the Plaintiff was working underneath a sidewalk area.  The Plaintiff alleged that one of the Defendants allegedly caused the sidewalk area to collapse down into the area where the Plaintiff was working, allegedly resulting in personal injuries. The Plaintiff sued various Defendants and asserted punitive damages claims.

In his detailed Order, Judge Nealon reviewed Pa. R.C.P. 4003.7 which governs the discovery of a Defendant’s wealth in connection with a claim for punitive damages. That Rule specifically states that a party may obtain information concerning the wealth of a Defendant in a claim for punitive damages only upon an Order of Court setting forth appropriate restrictions as to that type of discovery.

Judge Nealon referred to prior decisions out of the Lackawanna County Court of Common Pleas on which the Court had held that Rule 4003.7 retains a common law requirement that a Plaintiff must first demonstrate a prima facie right to recover punitive damages before such financial discovery would be ordered.

The court noted that the maintenance of the prima facie showing protects the privacy rights of a Defendant by ensuring that there is some factual basis for the Plaintiff’s punitive damages claim before a Defendant will be compelled to divulge confidential financial information to an opponent in a lawsuit.

Applying the law to the facts of this matter, the court noted that, while the Plaintiffs had alleged allegations of willful, wanton, and reckless conduct, the Plaintiff had not specifically demanded any punitive damages in the Complaint.

As such, Judge Nealon found that there was no existing punitive damages claim in the case before him to support an allowance of discovery of the Defendant’s finances. Accordingly, the court denied the Plaintiff’s request for financial work discovery without prejudice to the Plaintiff’s right to later seek out such discovery in the event the Plaintiff was granted leave of court to amend his Complaint to include a specific claim for punitive damages.

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