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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Several Notable Civil Litigation Trial Issues Addressed By Pennsylvania Superior Court

The Pennsylvania Superior Court addressed several notable recurring civil litigation issues in the case of Nazarak v. Waite, 2019 Pa. Super. 235 (Pa. Super. Aug. 2, 2019 Lazarus, J., Murray, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

The case arose out of a rear end motor vehicle accident.  The Plaintiff was driving a commercial vehicle and was on the job at the time of the accident.  As such, he received worker's compensation benefits in the form of medical payments and indemnity payments.

The case proceeded through discovery and a trial at which a verdict was entered in favor of the Plaintiff.  On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's post-trial motions.

Among the notable rulings by the Pennsylvania Superior Court were the following:

-Issues regarding the admission of the worker's compensation lien into evidence.

The Pennsylvania Superior Court affirmed the trial court's ruling to allow the Plaintiff to present to the jury the amount of the worker's compensation lien. 

 The Superior Court rejected the defense contention that the admission of the evidence pertaining to the lien violated the collateral source doctrine.  The Court noted that the reasoning behind the doctrine was not implicated in this case because it was the Plaintiff who was introducing the evidence of a prior recovery and not the Defendant.

The Nazarak Court also rejected the defense argument that the admission of the lien amount into evidence and the allowance of a recovery in that regard amounted to a double recovery for the Plaintiff.  The Court confirmed that the Plaintiff was required to pay back the lien amount to the worker's compensation carrier and that, as such, there was no double recovery by the Plaintiff.

The Superior Court also rejected the defense contention that, by allowing into evidence the fact that the Plaintiff had been paid such medical and wage loss benefits, the trial court usurped the function of the jury to decide the issue of causation because such evidence suggested that the Plaintiff's injuries were from the accident.  This contention by the defense was rejected by the Superior Court in this Narzarak decision.

-The Court also rejected the defense argument that it was error for the trial court to have allowed the introduction of the compromise and release document from the worker's compensation case into evidence at trial.  The defense had asserted that this was impermissible evidence of a settlement agreement in violation of 42 Pa.C.S.A. Section 6141.  The Superior Court noted that the Defendants in this case were not parties to that separate worker's compensation settlement agreement and, as such, Section 6141 was not directly implicated.  However, the Superior Court went onto note that while the admission of this evidence may have violated the letter of the law in Section 6141, such an error was not a reversible error where the evidence was only used by the Plaintiff to establish the amount of the lien and not with respect to proving any liability issues (liability was admitted by the defense at trial).


-Issues regarding the presentation of expert testimony.

The Court in Nazarak rejected the defense contention that the Plaintiff's vocational expert was allowed to testify beyond the fair scope of her report.  After reviewing the expert's testimony as compared to the expert's report, the Court rejected this argument.

The Court also rejected the argument by the defense that the Plaintiff had violated the hearsay rule by utilizing the Plaintiff's testifying orthopedic expert report to comment upon the report and opinions of a neuro-radiologist expert who was not called to testify.  The defense contended that this strategy violated the rule of law that prohibited one expert from acting as a mere conduit for the opinion of another expert.  The Nazarak court reviewed the testimony of the testifying orthopedic expert and found that that expert had not merely acted as a conduit for the other expert's opinion, but rather had permissibly referred to and relied upon that other expert's opinions to formulate the orthopedic expert's own opinions on the case presented.


Anyone wishing to review this case may click this LINK.

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."

Attorney Presence Allowed At Independent Psychological or Neuropsychological Exam (Pa.R.C.P. 4010)

Over the past year, at least two more trial court decisions have come down upholding a Plaintiff's right to have their attorney or other representative present for an independent neuropsychological examination:

Romagnoli v. Westmoreland Reg. Hosp., No. 1514 of 2011 (C.P. Westmoreland, March 27, 2013)(Plain language of Rule 4010 supports Plaintiff's right to have counsel or representative present at independent psychological examination;  Plaintiff has right to make audio or stenographic recording of examination;  Defendant's Motion to Compel Psychological IME of Plaintiff without presence of counsel denied).


Sanderson v. Geiger, et al., No. 2011-CV-8539 (C.P. Dauphin Aug. 22, 2013)(In Order without Opinion, Court held that Plaintiff permitted to have counsel present at all aspects of independent psychological examination and vocational assessment without exception;  Plaintiff also permitted to audio record entire psychological examination, including objective testing portion).



Source: Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.

ARTICLE: The Parameters of Independent Psychological and Vocational Exams

The below article of mine was recently published in the October 15, 2013 Pennsylvania Law Weekly and is republished here with the permission of American Law Media.  All rights reserved.

The Parameters of Independent Psychological and Vocational Exams

Pennsylvania Law Weekly

October 15, 2013

By

Daniel E. Cummins

Daniel E. Cummins

 

 

 

 

 

 

A recent recurring issue in Pennsylvania civil litigation matters has involved the parameters of an independent neuropsychological or psychological examination with respect to vocational testing arranged by the defense of an injured plaintiff.

As noted below, in the absence of any appellate guidance on this issue, the trial courts of Pennsylvania have struggled to craft appropriate remedies when disagreements in this regard arise between the litigating parties. The differing remedies allowed by the courts leave the issue in a somewhat erratic state in need of a sedative to calm the dispute.

Applicable Pennsylvania Rules

Under Pennsylvania Rule of Civil Procedure 4010(a)(2), "when the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party's custody or legal control."

Rule 4010(a)(4)(i) expressly provides that "the person to be examined shall have the right to have counsel or other representative present during the examination." Also under Rule 4010(a)(5)(i), an audio recording of the examination is allowed. There is no provision for any video recording of any examinations in the rule.

Under Rule 4010.1, pertaining to "Evaluation of Earning Capacity" by vocational experts, it is provided, under Subsection (b) that "the evaluation shall be subject to the provisions of Rule 4010(a)(3) through (b)(3) inclusive." In other words, the above-quoted rules also apply to interviews and testing that may be requested by vocational experts in their assessment of a plaintiff.

Trial Courts Differ

In an older Pennsylvania trial court opinion, former Luzerne County Court of Common Pleas Judge Michael T. Conahan (ahem) issued an order without any opinion in the case of Monahan v. Manitowoc, No. 465 - Civil - 2005 (C.P. Luz. Co. 2007), addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological independent medical exam arranged by the defense.

The order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, Pa., office of the expert by the plaintiff's own means or by means paid for by the defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, either by the plaintiff's own means or by means paid for by the defense.

More recently, Pennsylvania's discovery guru, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr., held in the case of Rotunda v. Petruska, No. GD08-018798 (C.P. Alleg. Co. 2010, Wettick, J.), that a neuropsychological IME could not be performed in the absence of plaintiffs counsel if an objection to that was lodged by the plaintiff.

Defense counsel had objected that the presence of another person at the psychological testing could alter the results and influence the test scores.

Wettick held that the wording of Rule 4010 "is clear" in allowing a party the right to have counsel or a representative present during the examination. Wettick also allowed the plaintiff to audio-record the proceeding, as allowed by the rules.

Earlier this year, in the case of Marion v. Lukaitis, No. 11-CV-7451 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), Lackawanna County Court of Common Pleas Judge Carmen D. Minora held that a plaintiff was allowed to have counsel present during the first two components of a neuropsychological examination. However, the court ruled that once standardized testing began, a plaintiff was precluded from having a third party present.

In taking the middle-of-the-road approach, Minora relied upon Rule 4010, cited Wettick's opinion in Rotunda, and stated that, "although there appears to be no appellate guidance on this specific matter, other Pennsylvania common pleas courts have concluded the words of Pa. R.C.P. 4010 are clear, and a party being examined has the right to have counsel present during a mental examination."

The defense in Marion also pointed to Rule 4012, which allowed a party to request from the court, for good cause shown, any order with justice required to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.

In order to accommodate both Rules 4010 and 4012, Minora chose to allow the plaintiff's counsel, or a designated representative of the plaintiff, to be present during the first two components of the neuropsychological examination involving a review of the plaintiff's records, medical history and background information. However, once standardized testing began, the plaintiff was precluded from having a third party present.

The court additionally held that audio or video recording of the standardized testing portion of the examination would be prohibited as well.

Another recent decision along these lines was recently handed down in the Dauphin County Court of Common Pleas by Judge Bernard L. Coates Jr. in the case of Sanderson v. Geiger, 2011-CV-8539 (C.P. Dauphin Co. Aug. 22, 2013 Coates, J.). As noted below, Coates allowed for wider parameters for the defense-arranged examinations of the plaintiff than that allowed by Minora in the Lackawanna County case.

By order only, Coates ruled in Sanderson that the "plaintiff's attorney or representative shall be permitted to be present during all aspects of the examinations, without exception," in reference to the neuropsychological exam, the independent medical exam and the vocational interview and testing set up by the defense.

Coates also ruled that the "plaintiff, at her expense, shall be permitted to audio-record the entire IME, including the objective testing portion." The prevailing plaintiffs attorney in this matter, Robert F. Claraval of Harrisburg, Pa.-based Claraval & Claraval, advised that this portion of the order applied to all of the exams set up by the defense.

The court in Sanderson additionally ruled that the defense had to pay for the expenses for a hotel room for the plaintiff to stay in the night before her examinations to which she had to travel a distance. Plaintiffs counsel sought out this relief so as to allow the plaintiff to walk into the testing "fresh" and to prevent the plaintiff from having to undergo such examinations after a long drive, which could arguably impact the plaintiff's ability to test and alter the results.

In his order, Coates additionally required the plaintiff's experts and the defense experts to engage in a simultaneous exchange of all raw data, testing documents, expert reports and any other documents generated by the experts so as to prevent one side's experts from having information before the other side's experts obtained the same information.

As can be seen from the above, different state trial court judges have crafted different remedies in the absence of any appellate guidance to date.

The Issue in Federal Court

Over in the federal courts, Federal Rule of Civil Procedure 35(a)(1) provides that "the court where the action is pending may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner."

Unlike its state rule counterpart, there is no express provision in the federal rule allowing a third-party representative to attend an examination with the plaintiff.

In the U.S. District Court for the Middle District of Pennsylvania case Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie (now a member of the U.S. Court of Appeals for the Third Circuit) issued an order without any opinion holding that the plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation.

The defense brief in that case relied upon Federal Rule 35 and argued that a majority of federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere, as in Shirsat v. Mutual Pharmaceutical, 169 F.R.D. 68 (E.D.Pa. 1996), and Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981). In Showell v. Trump Taj Mahal Casino, No. CIV. A. 98-2141 (E.D.Pa. 2000), plaintiffs counsel was allowed to attend independent psychiatric examination, but only if he did not interrupt and sat silently behind his client.

As noted, Vanaskie chose to follow what the defense termed was the majority rule in the federal courts by precluding the attorney or any representative from attending the independent psychological examination with the plaintiff.

In the more recent Middle District case M.S. v. Cedar Bridge Military Academy, No. 1:08-CV-2271, PICS Case No. 11-0912 (M.D.Pa. May 13, 2011 Carlson, M.J.), Chief Magistrate Judge Martin C. Carlson also ruled that under Federal Rule 35, the plaintiffs attorney is not permitted to be present at a psychiatric examination of a minor party in a negligence action filed by parents on behalf of a minor plaintiff.

Need for Guidance

Until a remedy is provided by way of appellate guidance, it appears that litigants and the trial courts of Pennsylvania will have to continue to struggle in an unsettled fashion over the proper parameters for these types of examinations.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

ARTICLE: The Battle Over Wage-Loss Claims

The below article of mine recently appeared in the Pennsylvania Law Weekly and is republished here with permission from the publisher ALM, Inc.

The Battle Over Wage-Loss Claims

by

Daniel E. Cummins, Esq.
Pennsylvania Law Weekly
September 17, 2013


One important part of the litigation of personal injury matters involves a battle of the experts over the wage-loss claims presented by the injured party.

Typically, the expert analysis of a plaintiff's wage-loss claims begins with the plaintiff securing and producing a vocational expert or economic expert report.

The Pennsylvania Rules of Civil Procedure provide a mechanism for a defendant to secure a vocational assessment of the plaintiff's claims as well under Rule 4010.1, titled "Evaluation of Earning Capacity."

Several wage-loss experts were interviewed for this article, including vocational expert William Walker of Walker & Associates in Fleetville, Pa., Sean Hanahue of Pennsylvania Advocates in Clarks Summit, Pa., and James W. Primm of Expert Vocational Services in Bridgeville, Pa. Economics expert Chad Staller of the Center for Forensic Economic Studies in Philadelphia was also consulted.

Documents Reviewed

All of the wage-loss experts interviewed noted that with a vocational and economic loss assessment, a review of the injured party's earnings history record is of paramount importance. All of the experts recommended securing documentation that would confirm the injured party's earnings history for at least the past 10 to 15 years.

Obviously, any documentation substantiating earnings after the event should also be secured and provided to the expert to analyze.

Hanahue said this documentation could include tax returns, W-2 statements and Schedule C forms for those who are self-employed. According to Hanahue, these more specific tax documents may spell out an individual's earnings in situations where that individual files a joint tax return with a spouse. Primm recommended securing this type of documentation for at least several years before and after an accident.

Walker also advocated attempting to secure the individual's Social Security earnings statement printout to provide a nice overview of a person's earnings history.

The experts all emphasized that employer's records are important, especially the file of the injured party's employer at the time of the injury. The vocational experts interviewed additionally suggested securing the employment files for the plaintiff's employers within the 10 years leading up to the injury and any subsequent employment record.

Most wage-loss experts will also require a review of the deposition transcript of the injured party, and may additionally find it helpful to also read the deposition of the plaintiff's spouse.

In terms of medical records, Walker emphasized the importance of select documents, such as the treating physician's office notations. Also, operative reports, narrative reports and independent medical examination reports are all pertinent to the analysis. Hospital records are important but can be limited to the admission record and discharge summary.

Other medical records that may prove important in the analysis include any functional (or physical) capacities evaluation forms. Such forms may outline an injured party's functional capacity to work, including any limitations or restrictions placed upon the party in terms of sitting, standing, walking, bending, squatting, driving and the like.

Primm said that in addition to the medical documentation, he also seeks out work release forms in the medical records to determine if such information is consistent with the party's return to work after an accident.

Walker also recommended that parties be on the lookout for other pertinent records, such as Social Security Administration records or any records pertaining to the receipt of short- or long-term disability benefits.

Primm and Hanahue emphasized that a vocational expert can never have enough documentation. They said that the best attorneys they work with send them all discoverable information contained in the file. Not only does this expand the scope of the expert's testimony as supported by documentation, but the provision of more information to the expert may eradicate any cross-examination based upon the expert having insufficient information for the analysis.

In terms of records to be reviewed by an economic expert, Staller said that in addition to the vocational experts' reports, economists typically request the pleadings to be sure as to the types of economic damages that have been pleaded and are at issue. Economists also benefit from a review of any and all tax information that may be secured.

Another document economists like to review that is often overlooked in injury matters is the plaintiff's employment file. The employment file often provides a cornucopia of information, from personal historical wage growth, attendance and propensity to work overtime hours to actual fringe benefits received.

The economist should also be provided all relevant medical reports (independent medical evaluations, vocational reports, functional capacity evaluations). Economic damages do not occur in a vacuum. The assumptions made by the economist must be tied to the facts in the case, which may include pre-existing medical conditions and prior drug or alcohol abuse that may impact work or life expectancy.

Advice for Attorneys at Depositions

All of the experts interviewed noted that it is obviously helpful when appropriate questions are directed to the injured party at the deposition regarding their work history and tax information.

Both Primm and Walker noted that, all too often, counsel only ask generalized questions on the wage-loss claims before quickly moving on to other topics at depositions. Often, there are gaps in the party's employment history that are not fully explored during the deposition.

Where a wage-loss claim is anticipated, the experts recommend direct and pointed questions exploring in detail where the plaintiff worked, the name of the employers, the injured party's job titles, the duration of each employment (from this date to that date), the rates and manner of pay, and annual earnings.

Hanahue also recommended that a plaintiff's tax records be reviewed prior to the deposition in order to discover areas that may need to be clarified at the deposition.

Hanahue also noted that if there has been an interruption in workforce participation, deposition questions as to whether this work interruption is health-related, related to an inability to find work or a lack of job availability may be helpful in the analysis.

Where a loss of future earnings is claimed, or a claim is made that a plaintiff may have to retire early as a result of the subject accident, it may also be advisable to explore the plaintiff's family medical history to determine if there is any history of morbid conditions that may otherwise serve to shorten the injured party's anticipated lifespan.

Staller, the economist, also recommended a review of any fringe benefits a party may be entitled to in his or her employment. Another topic typically overlooked at depositions from the economist's analysis is an exploration of the extent of the injured party's provision of household services at home.

Vocational Interview of the Plaintiff

Whether on the plaintiffs side or the defense side, after a review of the records provided, including the transcript of the plaintiff's deposition, the vocational expert will typically conduct a vocational interview of the injured party as part of the analysis.

The vocational experts interviewed generally noted that the vocational interview process usually lasts between 45 minutes and two hours, depending upon the complexity of the case and the thoroughness of the previously completed deposition of the injured party.

Hanahue generally noted that regardless of whether the expert is retained by the plaintiff or the defense, areas covered in a vocational interview typically include a person's work history, educational history, daily living skills and feedback regarding how the accident under review has impacted the inured party's ability to work.

Questions requiring injured parties to describe how the injuries have affected them physically are generally allowed. This topic is usually followed by questions seeking an updated status on the plaintiff's current condition, treatment and medication regimen to determine if the subjective complaints of the plaintiff are being medically addressed.

Direct Examination of Expert

All of the experts interviewed were consistent in their tips for conducting the direct examination of a vocational or economic expert at trial. The experts recommended allowing the expert to control the testimony by asking the expert short, open-ended questions that follow the format of the expert's report. The direct examination should be utilized to emphasize important points and point out differences between your expert and the opposition's expert.

Keep in mind that by the time the vocational or economic expert testifies, the jury usually has already heard much of the medical and wage information at least once. As such, this additional testimony on the topic should be as concise and to the point as possible.

The objective foundation for the expert's opinion should be emphasized and explained to the jury or fact-finders in each case in as basic terms as possible.

Cross-Examination of Expert

On cross-examination, the experts noted that you should not expect to get the opposing expert to change his or her opinion in favor of your client's position.

It is instead recommended that counsel ask pointed questions to bring out useful information for closing argument.

The experts interviewed noted that, at times, they discover on cross-examination that the retaining attorney has not provided them with all of the pertinent information to include in the opinion, which can prove uncomfortable on the witness stand. Attorneys should therefore look for gaps in the information provided to the opposing expert.

The experts interviewed additionally noted that engaging in badgering arguments with the witness typically does not play out well in front of the jury and often results in a loss of the focus of the cross-examination.

Conclusion

The utilization of a vocational expert or an economic expert for trial can drastically alter the value of a particular claim. Application of the above tips from such experts may serve to assist the litigating attorneys in realizing the full potential of retaining such an expert. 

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

Recent Luzerne and Lackawanna County Decisions on Parameters of Expert Vocational Interviews

In the matter of Franchetti v. Ranieli, No. 7461 of 2010 (CP Luz. Co. 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr., granted a Plaintiff's Motion for Protective Order and limited a vocational expert’s examination to four (4) hours.  President Judge Burke further compelled that the examination would be conducted Interrogatories in a local venue and not in the vocational expert’s office in Valley Forge, PA.

 In an Order entered by the Honorable Michael T. Vough in the matter of Price v. Price, Auto Glass Unlimited and State Farm Mutual Automobile Insurance Company, No. 13625 of 2010 (C.P. Luz. Co. 2012 Vough, J.), Judge Vough directed that a vocational expert appear to testify and explain before the Court on the issue of the location and requested length of his desired interview of the Plaintiff.  Reportedly, in response, the vocational expert agreed to be guided by the restriction set by President Judge Burke in Franchetti and the November 19, 2012 hearing on the Motion in the Price case was cancelled.

In neighboring Lackawanna County, in the case of Marion v. Motorist Mutual Insurance Company, No. 11-CV-7451 (C.P. Lacka. Co. 2012 Burke, D.M.), Attorney Henry Burke, in his capacity as the Lackawanna County Discovery Master, essentially adopted President Judge Thomas Burke’s position from the Franchetti case.  Judge Henry Burke restricted a vocational expert's examination to five (5) hours, ordered that it take place at a local venue, and that a representative of Plaintiff’s attorney’s office be allowed to be present (consistent with Rule 4010 and Rule 4010.1).

 

Anyone desiring a copy of these decisions may contact me at dancummins@comcast.net.

 

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices in Kingston, PA for bringing these decisions to my attention.