Local Rule Adopted in Monroe County Regarding Submission of Exhibits at Hearings and Trials (Effective Today, July 1, 2025)

Here is a LINK to the new Monroe County Local Rule of Administration 5103, entitled “Custody of Exhibits. Special Provisions,” which goes into effect today, July 1, 2025.

This rule requires lawyers to put the exhibits that they intend to introduce during their hearing or trial on a USB flash drive.

The attorney presenting the exhibits will then either display the exhibit up on a screen in the courtroom, or provide paper copies of exhibits as duplicates of what is on the flash drive.

In any event, under the rule, the flash drive will be the exhibit that is introduced.

Under the rule, the presiding judge may waive the flash drive submission requirement for good cause shown.

It is noted that the rule has technical requirements for the maximum size of each file on the drive, that being 50 MB.

The rule also requires lawyers to save each exhibit as a separate file on the flash drive.

If an exhibit exceeds the 50 MB limit, it has to be split up.

The rule also requires that the flash drive have a separate file for an index of exhibits.

The rule otherwise specifies what audio, video, documents and photograph files must be used.

It has been reported that the rationale for the rule is that, on appeal, the record before the trial court will be transmitted electronically to the appellate court. Absent the use of the above procedure, any paper exhibits would have to be digitized by court staff before the record could go up on appeal, which puts a burden on the courthouse workers, especially when there is a large trial record.

It has been noted that the court is also trying to reduce paper storage in the courthouse.

Again, this rule goes into effect on July 1, 2025.

Note also that a similar local rule is already in effect in the Lackawanna County Court of Common Pleas.

Superior Court Overturns Trial Court's Allowance of Amendment of Complaint During Trial To Add Claim of Punitive Damages

UPDATE:  Under a July 31, 2025 Order, the Superior Court withdrew this decision and granted an argument en banc on the issues presented.

In the case of Bernavage v. Green Ridge Healthcare Group, LLC, No. 1576 MDA 2023 (Pa. Super. May 19, 2025 Bowes, J., Olson, J., and Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court affirmed the entry of a compensatory damages award by a jury after a medical malpractice trial but vacated the jury's award of punitive damages after finding that the trial court erred by allowing the Plaintiff to amend the Complaint during the trial to add the claim for punitive damages.

According to the Opinion, the underlying case involved two (2) trials, one under compensatory damages aspect of the case and a second, later trial limited to consideration of whether punitive damages should be awarded against the Defendants.

It was noted that, during the course of the first trial, the Plaintiffs moved for a directed verdict on the issues of negligence and recklessness. At that time, the Plaintiff also made a request to file an Amended Complaint to conform the evidence elicited at trial to the pleadings. The request for a directed verdict was denied but the Plaintiff was allowed to file an Amended Complaint to add allegations of recklessness and to include a claim for punitive damages. The court also severed the issues related to the punitive damages claim to be resolved at a second, later trial with a different jury.

After the jury in the first trial entered an award in favor of the Plaintiff, the pleadings were reopened by the trial court and the parties proceeded to conduct punitive damages discovery prior to the second trial.

There was then a second trial at which the jury entered an award of punitive damages.

Following the punitive damages trial, the Defendants filed various post-trial motions and, eventually, this appeal. A central issue on appeal was whether the trial court abused its discretion in allowing, in the middle of a trial and after the expiration of the applicable statute of limitations, the Plaintiff to amend the Complaint to add allegations of recklessness and the claim for punitive damages.

The Superior Court ruled that the amendment of the Complaint to allow for claims of recklessness was not barred by the applicable statute of limitations. The main rationale for the appellate court’s decision in this regard was that recklessness and gross negligence are not to be considered distinct causes of action separate and apart from claims of ordinary negligence.

However, the appellate court did find that the trial court’s decision, during the course of trial, to allow the Plaintiff to add a claim for punitive damages was improper as that resulted in an unfair surprise to the Defendants at that late hour of the case.

The appellate court noted that the record revealed that the Plaintiffs did not pursue a claim of recklessness during the course of discovery and only introduced the concept of recklessness for the first time during the course of the trial.

The Superior Court noted that the Plaintiff’s failure to develop the specific theory of recovery in the form of recklessness during the course of discovery was not, in this case, a mere technicality subject to being cured by an amendment of the Complaint to conform to the evidence at any point.  Rather, the Superior Court noted that the record in this case revealed that the Plaintiff had developed a theory of liability at trial that was substantively different from the theory developed by the Plaintiff during the course of discovery and as alleged in the original Complaint.

The Superior Court additionally noted that the Plaintiff had solicited the word “reckless” from witnesses during the course of a trial, which witnesses, in the eyes of the Superior Court, could not be expected to understand the legal significance of that term. The Superior Court noted that the witnesses’ use of the word “reckless” in their testimony was of no legal significance until the trial court subsequently permitted the Plaintiff’s Amended Complaint in which recklessness was then alleged for the first time.

Accordingly, the appellate court found that this matter did not involve simply an amendment of the pleadings in order to conform the Complaint to the evidence produced at trial. Rather, the Superior Court viewed this matter as involving an introduction of a new theory of recovery at a late date in the proceedings, which action was of the type that is frowned upon by the courts and which often results in a violation of the statute of limitations.

While the court found that the statute of limitations did not serve to bar the addition of a claim of recklessness under this set of facts and given that recklessness is only considered a state of mind in regards to a negligence claim, the Superior Court found that the unfair surprise to the opposing party from the late amendment served as grounds that should have compelled the trial court to deny permission to amend the Complaint. 

The Superior Court concluded that unfair surprise existed in this case “where a negligence Plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” 

The court noted that, if, as the Plaintiff asserted, the facts of the Plaintiff’s original Complaint were sufficient to support a recklessness theory of recovery, then the Plaintiff should have developed that theory during the course of discovery. The Superior Court noted that, while it ascribed no motive to the Plaintiff in this case, it felt that, to reach a different conclusion, would be to invite negligence plaintiffs to withhold their theory of recovery, whether it is a negligence, gross negligence, or recklessness claim, until the last possible minute for the specific purpose of creating an unfair surprise to the opposing party. 

For these reasons, the Superior Court concluded that the trial court abused its discretion in permitting the Plaintiff to amend their Complaint during the course of trial to add a claim for punitive damages.

As such, the Superior Court affirmed the jury’s verdict relative to the award of compensatory damages but vacated the second jury’s award of punitive damages. The case was remanded for further proceedings.

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


I send thanks to Attorney Joseph T. (“Jody”) Healey of the Scranton, PA law firm of Cipriani &Werner for bringing this case to my attention.

ARTICLE: Use of Exhibits in Opening Statements: Win Your Case Before Any Witness Even Takes the Stand

 

Here is a LINK to an article of mine that appeared in the May/June 2025 edition of The Pennsylvania Lawyer Magazine published by the Pennsylvania Bar Association.  

The article is entitled "Use of Exhibits in Opening Statements is Allowed" and analzyes the recent decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Webb v. Scranton Quincy Hosp. Co., LLC.  

In his Opinion in the Webb case, Judge Nealon laid out, for the first time, the law that supports the use of exhibits during Opening Statements in personal injury matters.  

Gone are now the days where lawyers could only utilize exhibits during Opening Statements if the opposing counsel has no objection to the same.  Now there is law that can support a desire to utilize exhibits during an Opening even if the opposing counsel objects.

I send thanks to Patricia Graybill, editor of The Pennsylvania Lawyer Magazine for agreeing to publish this article.

ARTICLE: Judgeless Jury Selections: A Troublesome Trend

Here is a LINK to an article of mine that has been published in the March/April 2020 edition of The Pennsylvania Lawyer Magazine entitled "Judgeless Jury Selections:  A Troublesome Trend."

The article analyzes the relatively recent troublesome trend of judges routinely leaving the bench during jury selection after giving a short speech to the jurors about the trial process and then allowing the attorneys to conduct voir dire by themselves.

A number of cases that have gone up on appeal over issues surrounding the fact that the trial judge left the bench for voir dire.  In one such case, the Pennsylvania Superior Court recommended that trial court judges should remain on the bench.  In another case, the Pennsylvania Superior Court noted that it is not required that the trial court judge remain on the bench for voir dire but that, if the judge left the bench during that process, a different standard of review would have to be utilized on appeal to address any issues raised with respect to jury selection. 

This issue is now poised to be decided by the Pennsylvania Supreme Court in the Trigg case, which is currently pending before that Court.  The parties in that case argued the issues presented back on October 19, 2019 and await a decision.

The article reviews a number of reasons in favor of trial court judges remaining on the bench during the course of jury selection in order that certain appellate issues could be avoided as a result.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Law Weekly, for agreeing to publish this piece.