The below article of mine was published in the December 1, 2016 edition of the Pennsylvania Law Weekly and is republished here with permission:
Civil Litigation
A Year in Review: The Top
Recurring Issues
By
Daniel E. Cummins
December 1, 2016/Pennsylvania Law Weekly
 |
Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA |
A number of
recurring issues rose to the top of attention in the past year, many of which
are expected to remain on the forefront of civil litigation trends into 2017.
Here's a look back at some of the top topics in 2016 in personal injury
matters.
Facebook Discovery Issues
In past years,
with the rapid expansion of social media, the primary issue was to what extent
a party may seek discovery of another party's social media activity,
particularly with respect to Facebook. Now that the courts have generally
allowed parties to delve into the private portions of another party's social
media accounts provided that a predicate showing has been made that relevant
information will be uncovered, a more recent trend of cases has considered when
any such discovered information must be produced, i.e., before or after a
party's deposition.
Typically, the
courts have previously held, at least in the case of video surveillance
completed on a party, that such surveillance information need not be produced
in state court civil litigation matters until after the completion of a party's
deposition.
The trial court
judges in Dauphin County, including Judge Andrew H. Dowling and Judge Bruce F.
Bratton, appear to be among the first to address the issue of when virtual
surveillance information, i.e., social media search results from Facebook,
Instagram, Tumblr and the like, must be produced have taken a different
approach. These judges have ruled that social media information should be
produced to an opposing party before that party's deposition, as in Vogelsong
v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, Dowling, J.);
Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, Bratton, J.);
and Appleby v. Erie Insurance Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept.
9, Dowling, J.).
Whether other
trial court judges from around the commonwealth will rule in a similar fashion
or will, instead, apply the same rule of discovery pertaining to video
surveillance remains to be seen.
Claims of Privileged Information in Discovery
In its decision
in the case Brown v. Greyhound Lines, No. 1167 EDA
2015, 2016 Pa. Super. 108 (Pa. Super. May 24), the Pennsylvania
Superior Court addressed issues pertaining to the attorney-client privilege and
the work product doctrine as applied between attorneys and third-party
administrators in personal injury civil litigation matters.
The issue raised
in this matter involved a request for production of documents sent by the
plaintiff to a defendant carrier seeking the contents of claims files,
correspondence, and emails discussing the bus accident that were sent to or
from any individual employed by Gallagher Bassett, a third-party adjustment
company which contractually handled claims and investigations for the carrier.
The defendants objected to these discovery requests on the basis that the
materials were confidential under the attorney-client privilege and attorney
work product privilege.
Applying the
law to the case before it, the appellate court found that the defendants had
failed to establish that the trial court's rulings allowing for the discovery
of certain documents should be overturned. In part, the court faulted the
defendants in failing to carry their burden of proof on the privilege by
failing to make any specific arguments beyond citing general precepts
concerning the attorney-client and work product privileges.
The issue of
the admissibility of communications between defense counsel and a third-party
claims administrator was also addressed in the Middle District court decision
by Judge Matthew W. Brann in the case of Heller's Gas v. International
Insurance of Hannover, 4:15-CV-01350 (M.D. Pa. June 1).
In this breach
of contract and bad-faith case relative to a policy that provided commercial
premises coverage, the plaintiff insured claimed that documents withheld or
redacted in discovery did not fall within the attorney-client privilege, the
work product doctrine, and did not pertain to reserve information. The
plaintiff more specifically asserted that all but one of the documents at issue
was either sent to or from employees of the insurer's third-party administrator
or its authorized claim representative, and as neither of these entities were
subsidiaries of, or owned by, the insurer, the communications were not
privileged.
The carrier
countered with the argument that the communications between the third party administrator's
in-house counsel and the claim representative's in-house counsel with the
insurer all fell within the scope of attorney-client privilege.
The court
reviewed the unredacted documents during an in camera session. Thereafter the
court, referring to F.R.C.P. 26, decided: "After thoroughly examining the
documents, this court finds that the information redacted appropriately falls
within the attorney-client privilege and work product doctrine and is
consequently information directly related to or referencing legal strategy
regarding the instant litigation. The correspondence further supports [the
insurer's] latterly advanced argument that [the third party administrator and
authorized claims representative] are essentially agents of [the insurer]."
As such, the court found that the redactions were appropriate.
In a more
recent decision on issues pertaining to assertions of privilege in response to
discovery requests, the Superior Court emphasized that such issues were
immediately appealable on an interlocutory basis as collateral orders.
In Farrell v. Regola, 2016 Pa. Super.
241 (Pa. Super Nov. 8), a case that involved claims of the
attorney-client privilege and psychologist/patient privilege, the court held
that in the event that a trial court orders the production of the privileged
information in response to a motion to compel, even for the purpose of an in
camera review by the trial court, the aggrieved party is allowed an immediate
interlocutory appeal as of right as a collateral order.
The Superior
Court ruled that, if matters are indeed privileged, no one, not even a trial
judge, may have access to them. The Superior Court also ruled that the application
of privileges is subject to a de novo review.
Waiver/Release from Liability Forms
A number of
decisions were handed down over the past year upholding waiver or release forms
executed by injured parties prior to participating in recreational activities.
In an apparent
case of first impression of Feleccia v. Lackawanna College, No. 12-CV-1960
(C.P. Lacka. Co. Feb. 2), Judge James A. Gibbons of the Lackawanna County Court
of Common Pleas was faced with the issue whether two junior college students who
were injured at a preseason football practice were barred from recovering
against the college because both signed waivers of liability prior to their
injuries.
In his opinion,
Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases
for skiing, white water rafting, weight lifting, skating, and motorcycling,
among other types of activities, no case was found involving collegiate
football.
Gibbons
nevertheless ruled that neither the applicable law nor the facts of this case
required the court to distinguish between the inherently dangerous nature of
football and these other types of sporting activities noted. As such, the court
ruled that waivers of liability executed by the students precluded their
recovery.
In the Superior Court case of Hinkal v. Gavin
Pardo & Gold's Gym, No. 165 MDA 2014, 2016 Pa. Super. 11 (Pa.
Super. Jan. 22) (en banc), the Pennsylvania Superior Court affirmed a trial
court's entry of summary judgment in favor of the defendant's on the basis of a
waiver agreement signed by the injured party plaintiff as part of a membership
at Gold's Gym.
The
Pennsylvania Superior Court agreed with the trial court's decision that the
waiver language set forth in the Gold's Gym membership agreement was valid and
enforceable. Accordingly, the entry of summary judgment in favor of the
defendant was affirmed.
In another
recent decision by the Superior Court in the case of Toro v. Fitness International, 2016
Pa.Super. 243 (Pa. Super. Nov. 10), the Pennsylvania Superior Court
again affirmed the entry of summary judgment in favor of a defendant fitness
center on the basis of an executed waiver form in a slip and fall case.
As part of its
decision, the appellate court ruled that a release or waiver of liability
signed by the plaintiff when joining the health club was valid and binding. The
court stated that, where someone engages in a voluntary athletic or
recreational activity, a release in a contract for the use of the facilities is
not contrary to public policy. The court also ruled that a waiver of liability
in this regard was not a contract of adhesion because there is no requirement
for anyone to engage in recreational activities. The court also referred to the
oft cited rule that a failure to read a release or waiver language before
signing it does not affect its validity.
Neuropsychological IMEs
In its decision
in the case of Shearer v. Hafer, No. 665 MDA 2015
(Pa. Super. March 9), the Pennsylvania Superior Court affirmed a trial court's
granting of a defendant's motion for a protective order prohibiting the
presence of third-party observers during the standardized test portion of a
neuropsychological evaluation.
Following a
motor vehicle accident that gave rise to this case, the plaintiff treated with
a neuropsychologist and, during that treatment, the plaintiff's treating
neuropsychologist employed standardized testing procedures that were conducted
without the presence of the plaintiff's attorney or any other third party. The
defense hired a doctor to complete an independent neuropsychological
examination. The plaintiff's counsel demanded to be present during all
components of the neuropsychological examination. The IME doctor objected to
this request, including the plaintiff's counsel's request to audio tape the
testing evaluation.
The IME doctor
indicated that he would allow the plaintiff's attorney to be present during the
interview portion of the examination. However, the IME doctor would not permit
either the presence of the plaintiff's counsel and the audio taping during the
standardize test phase of the neuropsychological evaluation.
The Superior
Court noted that there was no Pennsylvania appellate court decision directly on
point that addressed a litigant's right to counsel during a psychological
examination.
On appeal the
appellate court affirmed the trial court's order, which stated that, although
plaintiff's counsel could be present during the preliminary interview phase of
the neuropsychological examination, no individual was allowed in the evaluation
room with the plaintiff and the IME doctor during the phase of the evaluation
that involves standardize testing. The order further provided that no recording
device would be permitted in the evaluation room.
The
Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial
court had the discretion to enter the order at issue. The court also found
support for the trial court's decision under Pa. R.C.P. 4010, pertaining to
physical and mental examination of person.
The Superior
Court also noted that, although there was "no case law [that] address of
the application of Rule 4012 to Rule 4010," the court noted that an
explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment
provides a comprehensive rule, which covers all depositions and all discovery.
Accordingly, the court ruled that it appeared that the legislature intended
that Rule 4012 would empower the trial court with discretion to issue
protective orders in various discovery procedures, including, specifically, the
power to limit the number of individuals present at an independent medical or
psychological examination.
Sever and Stay Post-'Koken' Bad-Faith Claims
Over the past
year there was a rising trend of motions to sever and stay bad-faith claims in
post-Koken automobile litigation matters.
A split of
authority continues in this regard, with some courts allowing the severance and
the stay of bad-faith claims, some courts severing the bad-faith claim but not
staying bad-faith discovery, and some other courts denying these types of
motions altogether. Summaries of at least some of these decisions uncovered,
most by order only and without opinion, can be found on the post-Koken
scorecard on my "Tort Talk" blog at www.TortTalk.com.
It remains to
be seen if this issue, as well as other important post-Koken issues will make
it up the appellate ladder in the year ahead. As the lower courts and the bar
are craving guidance in this still novel area of the law, it is hoped that the
Superior Court would publish any of its decisions on these topics as opposed to
offering unpublished decisions marked "nonprecedential."
'Tincher'
In 2016, the
courts and the bar continued to grapple with how to apply the Pennsylvania Supreme Court's products
liability decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa.
2014), in which the court ruled that the Restatement (Second) of Torts
continued to be the accepted guideline for such cases.
In Tincher, the
Supreme Court more specifically held that the nondelegable duty in a strict
liability case is that the a person or company engaging in the business of
selling a product has a duty to make a product that is expected to and does
reach its user without substantial change in the condition in which it is sold
and free from a defective condition that is unreasonably dangerous to the user
of the product.
The court also
confirmed under Tincher, that to demonstrate a breach of duty in a strict
liability matter, a plaintiff must prove that a manufacturer placed a defective
product on the market. Under Tincher, a case of strict products liability
requires proof, in the alternative, either of the ordinary consumer's
expectations or of the risk-utility of a product.
The court in
Tincher more specifically held that the consumer expectations test defines a
"defective condition" as a condition, upon normal use, dangerous
beyond the reasonable consumer's contemplations. In contrast, the risk-utility
test offers a standard which, in typical common law terms, states that: "a
product is in a defective condition if a 'reasonable person' would conclude
that the probability and seriousness of harm caused by the product outweigh the
burden of costs of taking precautions."
In the past
year, there have been some motions for summary judgment granted and some denied
on the basis of Tincher. The trial courts are also attempting to craft new jury
instructions for trials of post-Tincher matters. It is anticipated that the
Tincher decision will continue to have a significant impact in products
liability litigation matters until the Pennsylvania Supreme Court has a chance
to revisit the issue. •
Special to the Law Weekly 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.
