Defense Verdict Upheld Where Evidence Was Disputed On Whether Plaintiff Was Injured At All

In the non-precedential decision by the Pennsylvania Superior Court in the case of Smith v. Nguyen, No. 1312 EDA 2022 (Pa. Super. March 28, 2023 Panella, J., Bender, P.J.E., and Sullivan, J.) (Op. by Sullivan, J.), the court affirmed a trial court’s denial of a Plaintiff’s post-trial motions seeking a new trial after a jury found that a Defendant driver did not cause injury to a Plaintiff in a motor vehicle accident case.

After reviewing the record before it, the appellate court found that the trial court did not err by failing to grant a new trial under an argument that the jury’s finding of no causation of any harm was against the weight of the evidence.

In so ruling, the Superior Cour noted that the jury’s finding of no liability on causation for the Plaintiff’s injuries confirmed that the jury had rejected the Plaintiff’s expert witness’ testimony.

The court noted that the Plaintiff’s experts and the Defendant’s experts disputed one another on the issue of causation.  

The court also noted that the fact that the defense radiologist expert did not dispute the Plaintiff’s “subjective” reports of pain resulting from the collision did not constitute an agreement by the defense expert that the collision caused injury.

The court otherwise found that the jury’s decision that the Defendant’s negligence did not cause harm to the Plaintiff could properly have been based upon the evidence that the collision occurred at a relatively low speed, that the Plaintiff had pre-existing similar problems and degenerative conditions and/or that the Plaintiff did not complain of neck pain until four (4) years after the collision.

Overall, the court found that the Plaintiff did not show that the trial court abused its discretion in finding that the jury’s verdict did not shock the judicial conscience given that the post-trial claim was found to lack merit, the trial court’s denial of the same was affirmed on appeal.

This decision is also notable for the court’s ruling that a party is not entitled to adverse inference related to the failure of an opposing party to call a witness at trial where that witness was equally available to each party to be called as a witness.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney Paul Gambone of the King of Prussia office of the Forry Ullman law firm for bringing this decision to my attention.

Court Reviews Test for Competency of a Child to Testify

Sometimes a decision in another area of the law can prove useful in civil litigation matters.

In the case of MA v. JH, No. FC-20-20486 (C.P. Lyc. Co. Sept. 9, 2020 Tira, J.), the court addressed the competency of a child to testify in a hearing pertaining to a Protection from Abuse proceeding. 

In the end, the court found that the child was incompetent to testify due to a lack of maturity. As such, the child’s hearsay statements were also found to be inadmissible at the proceeding. 

According to the Opinion, the child was 4 ½ years of age. 

In this matter, the mother filed a Petition for Protection from Abuse. Prior to the scheduled hearing, the mother requested a tender years hearing pursuant to 42 Pa. C.S.A. §5985.1. 

This decision is notable for its reference to the test to determine the competency of a child under 14 years of age to testify. The court noted that this test was set forth in the case of Roche v. McCoy, 156 A.2d 307 (Pa. 1959). 

Under the Roche decision, it was noted that competency was the rule and incompetency was considered to be the exception. That court also ruled that, when the child is under the age of 14, a judicial inquiry into the child’s mental capacity was mandatory. The factors for the court to consider with respect to the child under the age of 14 included the child’s mental capacity, ability to communicate, and consciousness of the duty to speak the truth. 

After interviewing the child in this case, the court found that the child was not mature enough to testify. The court also ruled that the hearsay statements of the child could not come into evidence as well. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 27, 2020).

Rule 1925 Opinion By Trial Court Issued In Newsuan Case Regarding Contact with Witnesses in Civil Litigation Matter

In the case of Newsuan v. Republic Services, Inc., No. 1248 EDA 2018 (C.P. Phila. Co. Sept. 14, 2018 Rau, J.), the trial court judge issued a Rule 1925 Opinion supporting the trial court’s prior decision on the discovery issues presented in this matter relative to the attorney client privilege and the attorney work product doctrine. 

Tort talkers may recall a prior Tort Talk blog post on the court’s original decision in this case [June 20, 2018 - click HERE to view that post].

In this matter, the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident. According to the Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.  

In this more recent Rule 1925 Opinion, Judge Rau reiterated the rationale of the Court that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

Judge Rau also reiterated that the appeal has no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.  

Anyone wishing to review this decision may click this LINK.

Defense Counsel Ordered to Turn Over Information Pertaining to Potential Witnesses in a Civil Litigation Matter

In the case of Newsuan v. Republic Services, No. 00528 (C.P. Phila. Co. April 11, 2018 Rau, J.), the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.  

According to the Opinion, the Plaintiff filed the motion because of the alleged conduct of the defense lawyers in purportedly refusing to provide contact information for the potential fact witnesses in order that the defense lawyers could allegedly contact the witnesses first and interview them, and offer to represent them for free.   The trial court found that such alleged conduct compromised the fairness in the litigation process by obstructing the Plaintiff’s access to evidence.

As such, the Plaintiff’s Motion to Compel was granted.  

In her Opinion, Judge Rau noted that, because the Defendants’ lawyers admitted in court that the interviews with the witnesses were conducted prior to the Defendants’ lawyer offering to represent these witnesses, the court found that the interviews did not constitute attorney-client privilege communications.  

The court also noted that the Pennsylvania Rules of Professional Conduct require that the defense lawyers advised the witnesses of the potential conflict of interest in representing both the witnesses and the company being sued, nor did the lawyers obtain the informed consent from the fact witnesses in order to waive any potential conflicts.  

In her Order, the judge required that the defense provide the Plaintiff with the information regarding the current and former employees of the witnesses along with the notes of the interviews and all written communications.  

The court additionally ruled that the Defendants’ lawyers were disqualified from representing the former and current employee fact witnesses at a deposition or trial unless the attorneys secure a written waiver from the witnesses explaining the conflict of interest.  

The Defendants’ lawyers were also ordered to inform Plaintiff’s counsel as to which witnesses have or have not signed the written waivers of conflicts of interest. 

The defense lawyers were additionally ordered not to contact any witnesses that they had not succeeded in interviewing to date.  

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

I send thanks to Attorney William P. Corcoran, Esquire of the legal division of Septa for bringing this case to my attention.