Vehicle Damages Photos From Accident Were Not Authenticated and, Therefore, Not Allowed

In the case of Moore v. Nordland, June Term, 2020, No. 01679 (C.P. Phila. Co. Nov. 19, 2024 Turner, J.), the court issued a Rule 1925 Opinion asking the Superior Court to affirm the trial court Order denying the Defendant’s Motion for Post-Trial Relief following a motor vehicle accident.

A primary issue in this case raised by the Plaintiff was whether the court erred in precluding photographs of the vehicle that were involved in the accident.

According to the Opinion, during cross-examination, both Plaintiffs confirmed that they could not recall or remember if the photographs of the vehicles presented to them fairly and accurately depicted the condition of the vehicles following the accident. Accordingly, the court found that, based upon the testimony of the Plaintiff, the Defendant was unable to authenticate the photographs.

During the direct examination of the Defendant, defense counsel again attempted to authenticate the photographs. However, when asked whether the photographs depicted the way to the Plaintiff’s vehicle following the accident, the Defendant testified, “Yes, I mean, there’s nothing different from what I’m seeing in these pictures compared to what I saw there on Cheltenham Avenue,” where the accident happened. The Defendant also testified that the photograph of the Plaintiffs’ vehicle “looks like the exact same vehicle that I was in the accident with that afternoon–evening.”

The trial court judge wrote in her Opinion that the Defendant failed to testify that the photographs fairly and accurately depicted the vehicles following the accident. Rather, the Defendant only testified that the vehicle in the photograph was the same vehicle he was in the accident with. The court noted that the Defendant was unable to confirm that the photographs fairly and accurately depicted the damage, or lack of damage, to the vehicles following the accident.

Based upon the testimony of all of the parties, the court found that the photographs were not properly authenticated and, as such, did not allow the Defendant to admit the photographs into evidence or to publish them to the jury.

In so ruling, the court cited to “Pa. R.E. 901(a), which pertains to authentication of evidence. The court additionally cited to the case of Com. v. Loughnane, 128 A.2d 806, 814 (Pa. 2015), for the proposition that a photograph “may be authenticated by testimony from a person who has sufficient knowledge that the photograph fairly and accurately reflects what the proponent is purporting the photograph to reflect.” 

Here, the court noted that, while photographs of vehicles were certainly relevant, and may be admissible, in this case, the Defendant failed to properly authenticate the photographs. The court additionally noted that, “most importantly,” there was no testimony as to who took the photographs, when the photographs were taken, and whether any repair work had been done to the cars following the accident but before the photos were taken.

Also of note with regards to this decision, the court found that the Plaintiffs’ testimony regarding the accident, their injuries, and the residual impact of the injuries on the injured Plaintiff’s life, along with the Plaintiff’s expert testimony, provided the jury with sufficient testimony and evidence to make a determination as to whether or not the limited tort Plaintiffs’ injuries were “serious” such that the pierced the limited tort threshold.

Here, there is evidence that the Plaintiffs sustained soft tissue injuries to her cervical, thoracic, and lumbar spine regions along with disc protrusions and herniations in her neck and mid-back and low back. The court also noted that the Plaintiffs testified in detail as how the injuries impacted their everyday lives.

Accordingly, the trial court requested the appellate court to affirm the trial court’s denial of the Defendants’ Motion for Post-Trial Relief in this regard.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).

Source of image:  Photo by Victor Moragriega on www.pexels.com.

Authentication of Text Messages and Emails Addressed by Superior Court

In the case of Walker v. Walker, No. 787 WDA 2023 (Pa. Super. Aug. 9, 2024 Dubow, J., Kunselman, J., and Nichols, J.) (Op. by Dubow, J.), which involved a criminal court case, the Pennsylvania Superior Court found that the trial court did not abuse its discretion in admitting text message and emails into evidence after a finding that those messages were sufficiently authenticated by the testimony of a witness.

The appellate court found that the trial court did not abuse its discretion and had properly applied Pa.R.E. 901 which Rule of Evidence governs the authentication of evidence.

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

Although this is a criminal court case, the rationale of the court regarding the admissibility of text messages and social media would likely equally apply in a civil litigation context.


Source “The Legal Intelligencer State Appellate Case Alert” www.Law.com (Aug. 27, 2024).

Pennsylvania Superior Court Addresses Authentication of Social Media Evidence (in a Criminal Case)

In an example of a criminal court case providing law that could become pertinent in a civil litigation matter, in the case of Commonwealth v. Jackson, 2022 Pa. Super 156 (Pa. Super. Sept. 13, 2022 Bowes, J., Lazarus, and Stabile, J.)(Op. by Lazarus, J.), the court found that the prosecution had sufficiently authenticated social media accounts by providing substantial circumstantial evidence linking the accounts to the Defendant in a first degree murder case.

On appeal, the Defendant challenged the admission of the social media evidence under the authentication rules found at Pa.R.E. 901.

According to the Opinion, the prosecution introduced names of accounts that reflected nicknames used by the Defendant. Also provided were biographical sections of the accounts, which were all similar to each other and contained a pin drop location reflecting the place where the Defendant was photographed at times.

The supporting evidence also showed that the information in the accounts was consistent with information in another account that the Defendant admitted that he owned and controlled.   

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

Source:  “Court Summaries.”  By: Timothy L. Clawges. Pennsylvania Bar News (Oct. 10, 2022).

Source of image: Photo by Sara Kurfeb on www.unsplash.com.

Lessons From a Criminal Court Decision on Authentication of Social Media Evidence at Trial

In the case of Commonwealth v. Danzey, 2019 Pa. Super. 152 (Pa. Super. May 9, 2019 Bowes, J., Shogan, J., Kunselman, J.) (Op. by Shogan, J.), the court addressed the admissibility of Facebook and Instagram posts in a criminal case.   The court noted that such evidence may be authenticated under Pa. R.E. 901 pertaining to authentication of evidence.   

It is likely that, if such issues were addressed in a civil court proceeding, the courts will issue a similar ruling.  

In this case, the Defendant was charged with stalking and harassment and had filed a pre-trial motion to exclude 16 electronic communications directed at the victim, including Facebook and Instagram posts.  

After reviewing previous criminal court decisions including In Re: Interest of F.P., involving computerized instant messages, Commonwealth v. Koch, involving cell phone text messages, and Commonwealth v. Mangel, involving Facebook posts, the court noted that the evidence in this matter was properly admitted.  

In this case of Commonwealth v. Danzey, the district attorney had presented evidence that the Defendant owned the relevant social media accounts.  

There was also additional corroborating  evidence that the Defendant was indeed the author of the posts.   Each post was noted to contain clues that linked the Defendant to the victim and referenced their relationship.    

The court noted that the clues in the posts, taking together with the testimony provided by the victim’s sister, supported the conclusion that the Defendant had authored the messages such that the messages were authenticated and, therefore, admissible.  

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

Pennsylvania Superior Court Reviews Rules of Authentication of Documents By Records Custodian

In the case of Bayview Loan Srv. v. Wicker, No. 3 WP 2018 (Pa. March 28, 2019), the Pennsylvania Supreme Court declined to adopt a bright-line rule forbidding authentication of documents recorded by a third party and not the records custodian of the documents at issue.

In this case involving litigation over a mortgage foreclosure, the Court noted that the parties agreed that current Pennsylvania precedent allows a records custodian to authenticate documents even if the witness did not personally record the specific information in the documents.

The parties in this matter disagreed, however, as to whether a records custodian can lay a foundation for documents incorporated into the files of the custodian’s employer when the information in the documents was recorded by a third party.  The Pennsylvania Supreme Court noted that this process has been allowed under the similar but not identical Federal Rule of Evidence 803(6), pursuant to the so-called “adopted business records doctrine.”

The Supreme Court ruled that a trial court is allowed to utilize its broad discretion in evidentiary matters by applying the business records exception of Pa. R.E. 803(6) and the Uniform Business Records as Evidence Act, 42 Pa. C.S.A. §6108, to determine if a witness can provide sufficient evidence relating to the preparation and maintenance of records in order to justify a presumption of trustworthiness, subject  to an opponent rebutting the evidence with any other circumstances indicating a lack of trustworthiness.  

In the end, the Pennsylvania Supreme Court affirmed the Superior Court in concluding that the trial court did not abuse its discretion in allowing the testimony of the records custodian and admitting the documents under the facts of this case.

Anyone wishing to review a copy of this case may click this LINK

Source: “Court Summaries” by Timothy L. Clawges. Pennsylvania Bar News (May 6, 2019). 

ARTICLE: The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

This article of mine was recently published in the December 18, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.

The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

By Daniel E. Cummins
December 18, 2018

These are invigorating times for those engaged in the study and practice of law in Pennsylvania.

Over the past year there have been dramatic reversals of long-standing law by a newly activist Pennsylvania Supreme Court. There have been clarifications of recurring civil litigation issues by both the Superior Court and Commonwealth Court. There has also been a continuing development of a new common law by the Pennsylvania state and federal trial courts grappling with novel questions in the absence of appellate guidance in post-Koken matters and with respect to social media discovery and evidentiary disputes. Keeping apprised of these dramatic changes and developments is more important than ever.

Dramatic Pennsylvania Supreme Court Decisions

Over the past year the Pennsylvania Supreme Court made its presence known with its new brand of judicial activism evidenced in several civil litigation decisions that have created new avenues for plaintiffs to seek additional compensation and which will likely trigger more litigation in the future.

In Cagey v. PennDOT, 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, DOT, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances. Under the prior Fagandecision there was essentially no liability on any claims against PennDOT relative to guiderails in motor vehicle accident matters.

Now, under the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guiderail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident.  A dramatic increase of lawsuits against PennDOT on this theory of recovery is anticipated.

In another stunning reversal, the Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.), the plaintiff’s decedent was working as a contractor hired to rehabilitate a section of a water distribution system. At the time of the accident, the decedent was working just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. The decedent-contractor was unfortunately killed when a third car struck the parked government inspector’s car and propelled that stationary vehicle into the decedent.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. As stated, in  so ruling, the court eradicated 30 years of precedent on the issue in one fell swoop. This decision is also expected to give rise to an increase in lawsuits on this theory of recovery.

No More Voir Dire Without a Judge Present

The Pennsylvania Superior Court also handed down a number of notable decisions over the past year. The case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. May 14, 2018), has already changed how jury selection will work in the trial courts across the Commonwealth. In Trigg, the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.

According to the opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire. Any issues raised during jury selection would require the litigants and the clerk to go to another office to meet with the judge for a decision on whether to strike a juror. As such, the trial court judge would not have any first-hand perception of a juror’s demeanor in response to questions posed by the attorneys during jury selection.

The Superior Court in Trigg ruled that, given the fact that that first-hand perception of a juror’s demeanor is the basis for a palpable error deference standard of review on appeal for voir dire issues, decisions on jury strikes made by judges who do not attend jury selection should not be afforded that type of deference by the Superior Court.

The appellate court ruled in this fashion after noting that the alleged demeanor of a prospective juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge.  The Superior Court ruled that “a judge personally witnessing the original voir dire is essential, because it justifies our—and the losing party’s—faith in the trial court’s rulings on challenges for cause.”

The Superior Court’s decision in Trigg is in line with the Pennsylvania Supreme Court’s jury selection decision last year in the case of Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the Pennsylvania Supreme Court ruled that whether a juror is to be stricken during voir dire is dependent upon the trial judge’s assessment of the juror’s demeanor and the juror’s answers to the questions posed regarding whether the juror is capable of putting aside any biases so as to serve in a fair and impartial manner.

Going forward, it is anticipated that this line of decisions will keep trial court judges on the bench during voir dire so as to avoid any jury selection objections being upheld on appeal.

Social Media Decisions

Notable social media discovery and evidentiary decisions were handed down over the past year.

In Kelter v. Flanagan, PICS Case No. 18-0266, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Judge David J. Williamson granted a defendant’s motion to compel a plaintiff to provide the defense counsel with the plaintiff’s Instagram account log-in information.

The court ruled in this fashion given that the defense had made a predicate showing that the public pages on the plaintiff’s profile showed that more information may be found on the private pages of the same profile.

In addition to granting the defense limited access to the private pages of the site for discovery purposes, the also court ordered that the defense not share that information with anyone not related to the case. The court’s order also directed that the Plaintiff not remove or delete any content from that account in the meantime.

A contrary result was handed down in the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the plaintiff’s alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff’s social media profiles.

In his detailed opinion, Northampton County Judge Craig A. Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down not only by various county courts of common pleas but also courts from other jurisdictions. No Pennsylvania appellate court decision was referenced by the Allen court as there is apparently still no appellate guidance to date.

In his opinion, Dally noted that the defendant had pointed out discrepancies between the plaintiff’s deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the plaintiff’s Facebook profile depicting the plaintiff engaging in certain activities.

Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff’s public pages to allow for discovery of information on the plaintiff’s private pages.

In a footnote, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.

Dally additionally noted that, in any event, he “would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party’s social medial account by requiring the responding party to  to turn over their username and password, as requested by the defendant in this case.” The court found that such access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a discovery request that was not properly tailored with reasonable particularly as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant’s motion to compel was denied.

The above cases show that a decision on the discoverability of social media information can be dependent upon the personal assessment of the evidence by a particular trial court judge.

It is anticipated that when faced with the issue, the appellate courts will apply a similar method of allowing for social media discovery, i.e., requiring a predicate showing of information on the public pages of a profile that lend support to an assertion that discovery of the private pages should be allowed as well. But perhaps the appellate courts will apply more concrete parameters of the analysis so that the litigants can predict with greater confidence how a trial court judge may be required to rule upon the issue.

For a comprehensive compilation of social media discovery decisions, one can freely access the Facebook Discovery Scorecard on the Tort Talk blog. Many of the decisions handed down to date can be viewed and downloaded from that page.

Although there has been no appellate guidance in Pennsylvania on the issue of the discoverability of social media information, the appellate courts have weighed in on the issue of the admissibility of social media evidence at trial, albeit in the criminal court context.

Earlier this year, in the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary, that is, unless the evidence is authenticated under Pa.R.E. 901.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked. In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the defendant’s name was not enough to allow the evidence in. The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and email messages are authenticated. The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), which dealt with the admissibility and authentication of cellphone text messages.

In the 2018 Commonwealth v. Mangel case, the court noted that the Koch court had previously held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” The Mangel court ruled, in a case of first impression, that the same analysis should apply to social media posts in the criminal court context.

It can be expected that a similar ruling will also be handed down in the context of a civil litigation matter should that issue come before the trial or appellate courts.

The Future Shows Up as Your Ride

Sometimes the future, like an Uber ride, arrives sooner than you expect. One of the first Pennsylvania court decisions in a personal injury matter involving an Uber ride was handed down this year.

In the case of Fusco v. Uber Technologies, PICS No. 18-0944  (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court conditionally granted Uber’s motion to dismiss the plaintiff’s negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the plaintiff-customer.

By way of background, the plaintiff had attended a party Philadelphia and then contacted Uber for a ride to his home in New Jersey.

According to the opinion, the Uber app conceals the customer’s destination until the start of a booked trip. Accordingly, when a driver arrives to pick up the plaintiff, he does not know the plaintiff’s destination. The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable or less desirable. According to the opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.

In this matter, when the Uber driver arrived, he refused to take the plaintiff to his home in southern New Jersey. The plaintiff, apparently knowing the rules that Uber imposes on its drivers, remained seated in the car and repeated his request to be brought home. At that point, the driver dragged the plaintiff out of the car, kicked and beat him, leaving the plaintiff unconscious and bleeding.

The plaintiff later filed this suit against Uber asserting a negligent hiring claim, fraud and misrepresentation claims and vicarious liability claims.

According to the opinion, the court had originally granted Uber’s motion to dismiss on the negligent hiring and related claims given that there was no record of any alleged instances of past misconduct by the offending driver.

The court noted, however, that, after the plaintiff filed his complaint, news outlets in the area reported that the driver involved in the incident had a prior criminal conviction. In light of this development, the court granted the plaintiff leave to amend his complaint as to these claims.  Accordingly, the claim against Uber was allowed to proceed.

Can You Hear Me Now?

In 2018, the law continued to trend with respect to the issue of the availability of punitive damages in claims involving drivers involved in accidents while using their cellphones.

Under Pennsylvania’s Anti-Texting Law, 75 Pa.C.S.A. Section 3316, it is provided that no driver shall use a handheld device to send, read or write a text while the vehicle is in motion. Noncommercial drivers are otherwise still currently allowed to use their cellphones to make and receive calls while driving.

As for commercial drivers, Pennsylvania’s Distracted Driving Law, 75 Pa.C.S.A. Section 1622, makes it illegal for commercial drivers to use handheld devices in any fashion, except in emergency situations. That law also provides that it is illegal for an employer to permit or require a commercial driver to use a handheld device while driving, except in emergency situations.

With the continuing absence of any appellate authority on the issue to date, the trial courts of Pennsylvania have developed a common law on the issue of whether punitive damages are a viable part of an auto accident claim involving cell phone use by a defendant driver.

In the Cumberland County case of Manning v. Barber, No. 17-7915 Civil (C.P. Cumb. Co. 2018), preliminary objections were granted and a plaintiff’s punitive damages claim was dismissed in a case in which the plaintiff alleged that the defendant driver was texting while driving.

According to the opinion, the plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The plaintiff alleged that the defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the plaintiff’s vehicle. The plaintiff additionally alleged that, at the time of the accident, the defendant was not looking at the roadway because she was distracted while looking at and texting on her cellphone.

After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”

The court did note that there were a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cellphone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cellphone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.

In reviewing the plaintiff’s complaint, the note noted that the plaintiff simply pleaded boilerplate allegations that the defendant was inattentive and going too fast. The court in Manning found that these allegations only amounted to a classic claim of negligence, and not recklessness.

The court in Manning additionally rejected the plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance to date, the Manning court declined to accept the plaintiff’s argument in this regard.

The Manning decision is consistent with other prior trial court cellphone decisions requiring additional aggravating facts over and above mere cellphone use in order for a court to allow for a punitive damages claim to proceed. Such aggravating factors in other decisions in which punitive damages were allowed to proceed have included the fact that the defendant is driving a large commercial vehicle, excessive speed on the part of any driver, heavy traffic in the area, looking down or intoxication.

It remains to be seen whether 2019 will bring us an appellate decision on the issue of cellphone use and punitive damages claims in the auto law context.

Still in Need of Appellate Guidance for Post-’Koken’ Cases

There were no appellate decisions handed down in 2018 in the separate auto law context of post-Koken matters.

The only published appellate decision to date remains the Pennsylvania Superior Court’s decision from five years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013) appeal denied 89 A.3d 1286 (Pa. 2014). In that case, the Superior Court approached the question of whether an insurance company defendant should be identified as a party to a jury in a post-Koken trial but, unfortunately, did not provide a definitive holding on that issue.  Incredibly, the Pennsylvania Supreme Court declined to hear that appeal thereby missing a rare opportunity to dole out much needed guidance on novel issues of law.

Ever since, the trial courts of Pennsylvania continue to struggle with post-Koken issues. According to the post-Koken Scorecard on the Tort Talk blog, which has been compiling post-Koken decisions over the past decade, there are splits of authority among, and sometimes within, the county courts across the commonwealth on many different important questions of law pertaining to pleadings, discovery, evidentiary and trial issues.

For example, in terms of whether post-Koken claims not containing a bad faith claim should be consolidated or severed in terms of the third-party allegations against the defendant driver and the breach of contract claim for UIM benefits, at least 24 county courts favor the pretrial consolidation of such cases, while at least 23 favor the severance of these types of cases.

In terms of those post-Koken cases in which a bad faith claim is also alleged, there are at least 10 county courts that deny motions to sever and stay the bad faith claims, while at least 19 other county courts have ruled in favor of granting motions to sever and stay discovery on the bad faith claims.

The majority trend in the Pennsylvania federal courts, regardless of whether a bad faith claim has been pleaded, has been in favor of the consolidation of post-Koken claims through the life of the litigation.

Looking Ahead to 2019

It is expected that the above trending areas of law will continue to grab the headlines in 2019.

Perhaps one of the most important decisions to watch for in 2019 will be the Pennsylvania Supreme Court’s ruling in Roverano v. Crane, No. 58 EAL 2018 (Pa. July 31, 2018). In Roverano, the Pennsylvania Supreme Court is expected to address the issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability among defendants in the context of this products liability case. That decision could have an impact across all types of civil litigation matters involving multiple defendants.

At the Superior Court level, the hope is that that court will publish any decisions in these trending areas of law as opposed to releasing them as nonprecedential decisions. In this day and age of digital information there should not be any concern with respect to filling too many casebooks—those books are (unfortunately) falling by the wayside. As appellate guidance is desired by both civil litigators and the bench on these emerging areas of concern, such decisions should all be published as a matter of course.

The hope also remains that if the Pennsylvania Supreme Court has an opportunity to review any of the above issues on appeal that it will grant certiorari and also provide the much-needed appellate guidance in these important areas of the law.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.

Pennsylvania Superior Court Holds that Social Media Posts Must Be Authenticated Before Being Admissible in Evidence

Every once in a while a criminal court decision comes along that may have an impact in civil litigation matters.

In the case of Commonwealth v. Mangel, No. 2018 Pa. Super. 57 (Pa. Super. March 15, 2018 Musmanno, S.J. Ott, J., Shogan, J.)(Op. by Musmanno, J.), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked.  In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor's motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the Defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the Defendant's name was not enough to allow the evidence in.

The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and instant messages are authenticated.

Judge Musmanno wrote that "authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”

The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch which dealt with the admissibility and authentication of cell phone text messages.  Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014) (cell phone text messages); See also In the Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (computerized instant messages).

Click this LINK to view my Pennsylvania Lawyer magazine article on the Commonwealth v. Koch case.

Click this LINK to view the Tort Talk post on the split Pennsylvania Supreme Court decision in Commonwealth v. Koch.

In the recent Commonweath v. Mangel case, the court noted that the Koch court held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”

The Mangel court ruled, in a case of first impression, that the same standard should apply to social media posts in the criminal court context.

Anyone wishing to read the Commonwealth v. Mangel decision may click this LINK

Commentary:  It is safe to predict that the same standards would be applied in a civil litigation matter as well with respect to the admissibility of social media posts, emails, or text messages.


Source:  Article by Zack Needles entitled "Superior Court Adopts Standard for Authenticating Social Media Post." The Legal Intelligencer (March 21, 2018).

Third Circuit Rules on Authentication and Admissibility of Facebook Chats

In a recent decision in the case United States v. Browne, 834 F.3d 403 (3d Cir. 2016 Fisher, Krause, Roth, J.J.)(Op. by Krause, J.), addressed the proper authentication and admissibility of social media posts.  The case involved an appeal of a  criminal case from the U.S. Virgin Islands.  Although this decision arises out of a criminal case, the rationale regarding the authentication and admissibility of Facebook chats may prove useful in the context of a civil litigation matter.

The Third Circuit rejected the government's argument that pursuant to F.R.E. 902(11) the contents of "chats" exchanged over Facebook were "self-authenticating" as business records when accompanied by a certificate from Facebook's records custodian.   The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11). 

The court nonetheless affirmed the appellant's conviction finding the trial record reflected more than sufficient extrinsic evidence to link the Appellant to the chats and thereby satisfy the government's authentication burden under a FRE 901 analysis.

Anyone wishing to review this decision, may click this LINK.

I send a thanks to Brian J. Murren, a law clerk with the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Pennsylvania Supreme Court Splits on Authentication of Text Messages Ruling [In Criminal Court Context]

Tort Talkers may recall prior posts and articles here on the case of Commonwealth v. Koch, a criminal court decision on the issue of authentication of text messages in a criminal court case.  That case was noted to have possible implications on the authentication of electronic forms of evidence in the civil litigation context.  [For more, please go to www.TortTalk.com and type "Koch" into the Search Box near the upper right hand corner of the blog to bring up the prior posts on this case/issue].

A December 30, 2014 evenly split 3-3 decision by the Pennsylvania Supreme Court in the case of Commonwealth v. Koch, No. 45 MAP 2012 (Pa. 2014) means the Superior Court's decision applying the authentication law under Pa.R.E. 901 applies to electronic evidence and that circumstantial evidence can be utilized to meet the test.

While another split decision by the Commonwealth's highest court on an issue of importance is disappointing, that decision, along with the Superior Court's decision in the same case, suggests that the same old evidentiary Rules will be held to apply to this new form of evidence.  Such an analysis would likely be extended to Facebook profile evidence and other social media evidence.

To view the Per Curiam Affirmance by the Evenly Split Supreme Court, click HERE.

To view the Concurring Opinion by Chief Justice Castille, click HERE.

To view the Dissenting Opinion by Justice Saylor, click HERE.

To view the Dissenting Opinion by Justice Eakin, click HERE.



Source:  Article by Lizzy McLellan and Max Mitchell, "Supreme Court Splits on Privacy and Authentication Tech Issues."  The Legal Intelligencer (Jan. 13, 2015).

ARTICLE: Automobile 'Black Box' Information Ruled Admissible in Criminal Case

EVIDENCE
Automobile 'Black Box' Information Ruled Admissible in Criminal Case By

Daniel E. Cummins, The Legal Intelligencer
July 1, 2014
Republished here with permission by American Law Media. 
 

Daniel E. Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
Scranton, PA

Every so often in Pennsylvania jurisprudence, an appellate court criminal law decision comes along that could serve to have a substantial impact on the litigation of Pennsylvania personal injury matters.
For instance, in the case of Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), which is currently on appeal and pending before the Pennsylvania Supreme Court, the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pennsylvania Rule of Evidence 901. Obviously, that issue could have an impact on the admissibility of such evidence, or other forms of social media evidence, in civil litigation matters.

With the increasing inclusion of event data recorders, more commonly known as "black boxes," in automobiles, the time is coming when information gathered by such devices may serve to make or break an auto accident personal injury case.

According to studies, event data recorders in automobiles are capable of recording a wide variety of information, such as whether the brakes were applied, changes in velocity, speed at the time of an impact, whether the cruise control or headlights were on, whether turn signals were activated, the angle of the steering wheel at impact, and whether the seat belt circuits signaled "buckled" or "unbuckled."

Surely, the admission of such objective, scientific and presumably indisputable evidence in support of the crucial facts of any given accident could definitively resolve the many typical factual disputes that make up an automobile accident case.

Novel Auto Accident Evidence
In its recent nonprecedential memorandum decision in the criminal case of Commonwealth v. Safka, 1312 WDA 2012 (Pa.Super. June 2, 2014), the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's black box was admissible in a criminal court proceeding.

The Safka case arose out of charges of vehicular homicide and other moving violations. At trial, the defendant challenged the prosecution's admission of black-box evidence regarding speed. On appeal, the Superior Court ruled that the evidence was indeed admissible in that it was not a type of novel scientific evidence that needed to meet certain stringent expert evidentiary admissibility rules, such as the Frye test.

In his majority opinion, Judge Jack A. Panella noted that the prosecution presented evidence establishing "that the [black-box] technology has existed for almost 40 years, has been adopted by the major automobile manufacturers and has been recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle's speed prior to an impact."

It is also noted that while Judge David N. Wecht dissented on a procedural issue, he otherwise joined in the majority decision that the offered event data recorder information secured from the vehicle at issue did indeed satisfy the Frye test so as to be admissible.

Although the Safka decision was for some reason posted as a nonprecedential decision, it has served to open the door for consideration of such novel evidence. Surely, it is only a matter of time before this rule of admissibility is also tested in the civil litigation context.

The expectation is that courts addressing the issue of the admissibility of this automobile black-box information in the context of the less stringent standards applicable to civil litigation matters would find such evidence to be admissible.

Open Questions

In addition to the test of admissibility, there may also arise questions as to how such black-box information is authenticated. This issue may implicate the ruling and rationale of the Koch case on the authentication of text-message evidence. In other words, the black-box information may be treated similar to documentary evidence being authenticated under Rule 901, titled "Authenticating or Identifying Evidence."

Another open issue may involve the credibility of attacks on the veracity of the information contained in the black box. For example, technological attacks against the device similar to the need for DUI breathalyzer devices to be calibrated or otherwise confirmed to be in proper working order may give rise to a new kind of expert witness who may become common in such cases.

Moreover, once black-box information is found to be admissible in auto accident personal injury matters, the issue becomes whether a party may assert a spoliation defense against an opposing party for failing to preserve such black-box information after a car accident.

If such a spoliation defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black-box information that such information would have been adverse to that party's position.
It is noted, however, that in at least one case—Parry v. Dyer, Nos. 07-00,445, 06-00,679 (C.P. Lycoming Co. 2007), where the issue of spoliation was raised with respect to the failure of a party to preserve the black-box evidence in a car accident case—the court ruled that neither party would be charged with destruction of the evidence as issues remained as to which party had control over the vehicle following the accident.

Trend Toward 
Preserving Evidence

Although unfortunately listed as nonprecedential, Safka represents at least a foreshadowing of a trend that can be expected to rise not only in criminal matters but also in civil litigation matters in the form of increasing references to and, eventually, reliance upon information gathered from motor vehicle black boxes relative to the facts of an automobile accident.

As such, it may be wise for litigants on both sides of the bar to consider developing procedures to preserve event data recorder information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.
 
Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.  Attorney Cummins focuses his practice on the defense of personal injury matters in the context of motor vehicle, premises liability, and products liability litigation.

ARTICLE: U Need 2 Authentic8 TMs @ Trial

Here's a link to an article of mine entitled "U Need 2 Authentic8 TMs @ Trial" that appeared in the September/October 2012 edition of the The Pennsylvania Lawyer Magazine.

The article analyzes the criminal court decision of Commonwealth v. Koch in which the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pa.R.E. 901.  Obviously, this issue, which is now headed to the Pennsylvania Supreme Court via this case, could have an impact on the admissibility of such evidence in civil litigation matters.

The article can be viewed online by clicking this LINK.  I send thanks to Editor Don Sarvey of the magazine for agreeing to publish this piece.

Pennsylvania Supreme Court to Address Issue of Authentication of Text Messages at Trial

Tort Talkers may recall that I recently reprinted on Tort Talk an article of mine on the Pennsylvania Superior Court case of Commonwealth v. Koch in which that Court discussed the parameters of authenticating text messages for admission into evidence at a criminal trial--see here.

According to an article by Ben Present in the May 17, 2012 online edition of The Legal Intelligencer, the Pennsylvania Supreme Court has agreed to hear an appeal in the Koch case, in part, over whether "unauthenticated" text messages may be admitted as evidence during a criminal trial trial.

This appears to be a case of first impression for Pennsylvania's highest court and it will be interesting to see how the issue is handled.  Surely, the decision could have an impact in civil litigation matters as well on the use of evidence pertaining electronic messages.

Year End Review Article: GENERAL CIVIL LITIGATION CASES AND TRENDS

Below is a copy of my year end review article on general civil litigation cases and trends over the past year of 2011.  This article was published in this week's Pennsylvania Law Weekly.

Over the next month or so, I will share my year end articles reviewing the important cases and trends in the Auto Law context and the Bad Faith context.


Rule Changes Alter State Civil Litigation Landscape

by
Daniel E. Cummins


Pennsylvania Law Weekly


November 15, 2011

In civil litigation, this has been a year of big changes and shifts in how personal injury matters are to be played out in Pennsylvania courts. A seismic shift in the state's civil litigation landscape was felt on June 28 when state Gov. Tom Corbett signed into law the Fair Share Act, drastically changing the joint and several liability of defendants in civil litigation matters.

Another important rule change for state civil litigation matters came when the state Supreme Court passed amendments Pa.R.C.P. 212.3, 212.5 and 212.6, pertaining to pre-trial conferences and settlement conferences. There have also been some major substantive changes in Pennsylvania civil litigation law.

Under the prior joint and several liability law, a defendant who was found responsible for only one percent of the liability for an injury or economic loss could be required to pay the entire 100 percent of the damages owed to the injured party.

Under the Fair Share Act, Pennsylvania now joins about 40 other states that require defendants in personal injury matters to pay only the proportion of the degree of fault assessed to them by a jury. For example, if a defendant is found 25 percent liable by a jury, that defendant is only required to pay 25 percent of the verdict, i.e., his or her "fair share" of the damages.

Note that this new law applies to causes of action that "accrue on or after the effective date," — June 28, 2011. As such, all causes of action arising before this date will still proceed under the old joint and several liability rule.

Pennsylvania's Fair Share Act also provides, with certain limited exceptions, where the defendant's liability for the damage or loss is assessed by a jury at 60 percent or more, that defendant can still be held jointly liable, i.e. responsible for the full amount of damages regardless of their percentage of fault.

Of note in the January rule changes to pretrial and settlement conferences is the new provision to Rule 212.3 that provides that "[a] court may require, pursuant to a court order, various parties to attend a pretrial conference, including an insurance or similar representative, who has authority to negotiate and settle the case."

The rule goes on to state that, if the pretrial conference is set up without any court order regarding the attendance of an insurance representative with settlement authority, such a person is still required by the terms of the rule to attend the conference in person "or be promptly available by phone."

The 3rd Circuit Applies Third Restatement of Torts to Products Cases


On July 12, the 3rd U.S. Circuit Court of Appeals issued an important decision in the products liability case of Covel v. Bell Sports Inc. In Covel, the 3rd Circuit affirmed the U.S. Eastern District Court's application of the Third Restatement of Torts and negligence concepts to claims of injuries allegedly caused by a defective product.

In so ruling the court reaffirmed its prediction from the case of Berrier v. Simplicity Manufacturing Inc., that, if faced with the issue, the Pennsylvania Supreme Court would move to applying the Third Restatement's standards in products liability cases as opposed to continuing with the current utilization of strict liability standards set forth in Section 402A of the Restatement (Second) of Torts (1965) .

It therefore appears that, by virtue of this opinion, until the Pennsylvania Supreme Court holds otherwise, the Third Restatement 's "reasonableness"-based form of strict liability will be utilized in federal courts applying Pennsylvania law as opposed to the strict liability theory of law espoused by the Restatement (Second) of Torts.

Under the old restatement, defendants in products liability cases could be held strictly liable to parties injured by unreasonably dangerous products, even if the defendant exercised reasonable care in the manufacturing, distribution or sale of the product. Under that analysis, negligence principles (duty of care, breach of standard of care, causation) do not come into play. Usually, the plaintiff includes a separate and distinct negligence claim in the complaint against the defendants.

Under the Third Restatement , defective products are defined under standards that incorporate negligence concepts such as foreseeable risk and care into the definition of defective.

This change basically means that a risk-utility balancing test, which is a negligence concept, would be utilized in the determination of whether or not a product is defective. Under this new analysis, defendants in products liability cases will not be strictly liable for defective products regardless of fault; rather, the liability test will be less stringent, which is a change in the law that favors the defense in these types of cases.

As noted, this decision currently only applies to Pennsylvania federal court matters. It remains to be seen how the Pennsylvania Supreme Court will address the issue if faced with it in the future.

Error of Judgment Defense Banned in Medical Malpractice Cases

The Pennsylvania Superior Court recently ruled in the medical malpractice case of Passarello v. Grumbine that its earlier ruling banning medical malpractice defendants from relying on an "error in judgment" defense at trial can be applied retroactively in certain cases.

Under the "error in judgment" defense, the courts would instruct jurors at trial that "physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment."

The prior Superior Court decision in which this defense was first found to be invalid was the Superior Court case of Pringle v. Rappaport. In that case, the Superior Court reviewed the history of the error in judgment rule and held that it was no longer valid in Pennsylvania due to its inconsistency with the "standard of care" analysis utilized in medical malpractice cases.

In the more recent decision of Passarello, the Superior Court held that its previous ruling in Pringle could be applied retroactively but only in those cases where the final judgment of the verdict had not been entered before the 2009 filing date of the Pringle decision. The Passarello court noted in its opinion that it felt that the number of prior cases that may arise as a result of this retroactive application of the rule of law would be limited and not open the floodgates to numerous new appeals.

Medicare/Medicaid Liens and Settlements

Another recent trend in civil litigation matters is the increasing concern of addressing Medicare liens asserted by the federal government against personal injury settlements and verdicts.

Late last year, in the case of Zaleppa v. Seiwell, the Superior Court upheld a plaintiff's argument that a defendant's statutory obligation to reimburse Medicare was separate and distinct from Medicare's statutory right of reimbursement and that nothing under federal law or any provision of the Medicare Secondary Payer Act "expressly authorizes a primary plan to assert Medicare's right to reimbursement as a pre-emptive means of guarding against its own risk of liability."

In other words, defendants and liability carriers in personal injury matters did not have a right to demand that certain steps be taken by a plaintiff to ensure that a Medicare lien was satisfied out of the monies paid to the plaintiff. Rather, the Medicare Secondary Payer Act expressly provides that only the U.S. government, and not any private entity, such as a tortfeasor defendant or liability insurance company, may pursue the rights of the government in this regard.

Since the issuance of the Zaleppa, a few trial court decisions have come down over the past year expanding on this issue.

In both the Cambria County case of Vincent v. Buck, and the Monroe County case of Dailey-Console v. Barnwell, the trial court judges relied upon the Zaleppa case to support a granting of a plaintiff's motion to compel a defendant to pay a settlement over the defendants' objection that Medicare lien issues were not yet resolved. In both decisions, the trial courts emphasized that there was nothing in the releases entered into between the parties that entitled the defense to insist that certain measures be taken by the plaintiff to ensure that the Medicare lien was addressed prior to the issuance of the settlement check.

Pursuit of Dept. of Public Welfare Liens Upheld

While the issues pertaining to Medicare liens and settlements were clarified in 2011, longstanding procedures regarding the recovery of Pennsylvania Department of Public Welfare Medicaid liens were upheld as valid by the 3rd Circuit U.S. Court of Appeals in June. The decision came in a 59-page opinion in Tristani v. Richman.

The 3rd Circuit noted that the U.S. Supreme Court, in the case of Arkansas Department of Health and Human Services v. Ahlborn, assumed, without deciding, that such liens, when limited to the portion of a settlement or judgment constituting reimbursement for medical costs are an implied exception to the federal law that prohibits states from imposing liens on the property of Medicaid beneficiaries.

The 3rd Circuit in the Tristani case was tasked with the job of deciding "whether these liens in fact constitute such an exception." More specifically, the issue for the court to decide was "whether state agencies responsible for administering the Medicaid program have the authority to assert such liens and, if so, whether Pennsylvania's statutory framework is consistent with the Supreme Court's decision in Ahlborn."

The ultimate decision in Tristani was that its "examination of the text, structure, history and purpose of the Social Security Act leads [the 3rd U.S. Circuit Court of Appeals] to conclude that liens limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the act." Accordingly, court upheld Pennsylvania's longstanding practice of allowing for such Medicaid liens to be recovered by the Pennsylvania Department of Public Welfare in civil litigation matters.

Social Media Discovery

Another emerging trend in Pennsylvania personal injury matters is increasing litigation over the extent to which one party may gain access to information on an opposing party's social networking sites such as Facebook or MySpace. The trend of the initial trial court decisions in this regard has been to allow such discovery.

One of the initial, if not the first, decisions handed down on this issue came back in September 2010 when President Judge John H. Foradora of the Jefferson County Common Pleas Court ruled in McMillen v. Hummingbird Speedway Inc. that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defense in order that the information may be accessed.

The McMillen decision was followed by Northumberland County case Zimmerman v. Weis Markets Inc. Common Pleas Court Judge Charles H. Saylor wrote, "This court agrees with the rationale of the opinion in McMillen, authorizing access for the reasons that no privilege exists in Pennsylvania for information posted in the nonpublic sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal."

A similar ruling was also handed down by the U.S. District Court for the Middle District of Pennsylvania in the case of Offenback v. L.M. Bowman Inc. In Offenback, Magistrate Judge Martin C. Carlson granted the defendant's request for access to the plaintiff's Facebook page under Fed.R.C.P. 26(b)(1). The court conducted an in camera review of the plaintiff's Facebook page as part of the court's analysis and found that the information contained on the site should be indeed discoverable as relevant to an evaluation of the plaintiff's damages claims.

One contrary trial court decision in this area was handed down in Bucks County case Piccolo v. Paterson. In a one paragraph order, the court denied a defendant's motion to compel the plaintiff to allow the defense access to the plaintiff's Facebook page.

At issue in the Piccolo case was a scarring injury. Prior to the defendant's request for access to the plaintiff's Facebook page, the plaintiff had already provided the defense with a great number of photographs pertaining to the scarring injury claim. The court apparently found that the defendant's desire to access even more photos of the plaintiff on her Facebook page was cumulative and unnecessary.

Authentication of Text Messages At Trial

Sometimes, updates to the practice of civil litigation law can come from criminal court decisions. Such was the case with the recent criminal court appellate decision, Commonwealth v. Koch, described as a case of first impression. In Koch, the Superior Court ruled that text messages were not admissible in court unless they were properly authenticated.

In Koch, a criminal defendant's cellphone had been seized by the police during a search warrant. The text messages discovered on the phone were transcribed, offered at trial by the prosecutor and allowed into evidence by the trial court judge over the defendant's objections.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.

In the decision, the court noted that "electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated."

Pointing to the rules of evidence on the proper authentication of evidence at trial, Pa.R.E. 901-902, the Superior Court held that there must at least be "[c]ircumstantial evidence, which tends to corroborate the identity of the sender," of the text message before that evidence may be considered authenticated and admitted.

This emerging authentication issue could obviously also come into play in civil litigation matters with respect to authenticating text messages offered into evidence. Such authentication will also likely be required for Twitter postings and e-mails as well as evidence in the form of the commentary and photos found on social media sites such as Facebook, MySpace, LinkedIn and Google Plus, to name a few.

The Future of Expert Discovery

Revisions to Rule 26 of the Federal Rules of Civil Procedure took effect on Dec. 1, 2010, resulting in a significant change in the long-standing Federal Court procedure regarding the discovery of expert witness reports.

Relying upon the work-product doctrine, Rule 26 now no longer requires full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the rule's last revision back in 1993. Still permitted is the full discovery of the expert's final opinion and of the facts or data used to support the opinions.

Both the plaintiff's bar and the defense bar are keeping an eye on a highly anticipated decision by the Superior Court on the same issue in the case of Barrick v. Holy Spirit Hospital. That case revolves around the all-important issue of whether one party is entitled to discovery of correspondence written by opposing counsel to the opposing party's expert for trial.

The trial court originally ruled that such communications by the plaintiff's attorney to the plaintiff's expert were discoverable. On appeal, the original Superior Court panel affirmed.

Thereafter, the Superior Court granted the plaintiff's motion for reargument before an en banc panel and, in doing so, withdrew the Superior Court's affirming decision.

On April 5, the en banc panel heard reargument of the Barrick case and the case has remained under advisement ever since. For full disclosure purposes, I note that I assisted the defense in this matter by way of an amicus brief sponsored by the Pennsylvania Defense Institute.

The court's decision in Barrick will serve clarify the interplay between Pa.R.C.P. 4003.3 and 4003.5 — the balance between the protections of the attorney work product doctrine and the discoverability of the bases for an expert's opinion could have a major impact in how litigating attorneys communicate with their respective experts during the course of a lawsuit.

It is also noted that, earlier this year, the Pennsylvania Supreme Court Civil Procedural Rules Committee published a draft of its Proposed Recommendation No. 248, seeking to amend Pa.R.C.P. 4003.5, which pertains to expert discovery.

This proposed recommendation intends to bring state court practice more in line with new federal practice noted above. Significantly, it expressly prohibits the discovery of any kind of communications between any attorney and his or her expert.

It remains to be seen whether this issue of expert discovery will be resolved by way of the Barrick decision or a revision to the Rules of Civil Procedure or a combination of both. •

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