I recently came across the following October 15, 2009 entry on the Legal Intelligencer's blog and thought it would be a great one to share. I secured the authority to do so from the author, Melissa M. Gomez, Ph.D (UPENN), a jury consultant and owner of MMG Jury Consulting, LLC (http://www.mmgjury.com/) out of Philadelphia. I couldn't agree more with her notion that just being nice can go a very long way in the practice of law:
Never Underestimate the Power of Just Being Nice
Picture this: It is sometime in the late 1980s. I am sitting in a dingy classroom somewhere within the halls of Council Rock High School. Hair: Big. Eyeliner: Electric blue. This class is my first introduction to psychology, the field that will become my future. My teacher, Mr. Curran, a tall lanky man who did not get the memo that the sixties were over, silently writes on the chalkboard in large, block letters: “NEVER UNDERESTIMATE THE POWER OF JUST BEING NICE.” Then he sits down and lets the students marinate for a while in the statement. Twenty years later, I still regularly reflect on it.
Are Jury Trials and ‘Nice’ Incompatible?
So what does this have to do with jury trials? In my humble opinion, a lot. I have seen many a litigator make the error of believing that, in order to advocate for their clients, they need to viciously attack the witnesses on the other side. What I want to tell you is that this tactic does not work. Actually, it often backfires.
At trial, you are not only an advocate for your client, but a reflection of your client. If you decide that the best tactic is to behave aggressively, you have to be prepared for the likelihood that jurors will associate that aggression with your client and not just you. So for example, if the other side is accusing your client of being a bully that has no regard for the individual, and then you are seen verbally attacking a witness on the stand (a behavior associated with bullies), you have in essence, projected the “bully” image in the courtroom. You have personified opposing counsel’s point.
What Does ‘Nice’ Mean at Trial?
Now, of course, being nice does not mean that you fail to make your arguments or expose bad behavior. It does mean, though, that you can attack behavior without attacking the human being. I have seen people viciously and personally attacked on the stand. Jurors don’t like it. More often, the questioner looks bad, not the witness.
For example, in a trial about a contract dispute, opposing counsel was cross-examining one of our expert witnesses. Counsel was yelling. He was flailing. He was angry. Our witness tried to stay calm and answer the questions, but he was obviously shaken by the tone of the questioning. During post-trial interviews, the jurors did not remember much about the content of that cross-examination. What they remembered was the show that the attorney put on and what they relayed was that they felt bad that this witness was forced to put up with such an attack. In essence, while opposing counsel was trying to make the witness look nervous about the content of his testimony, he only succeeded in making the witness look (understandably) upset about being verbally abused.
One day, I may be proved wrong, but, in the many cases I have seen tried, I have yet to find a situation in which it is necessary or appropriate to launch a full frontal attack on a person. Attack the decisions, point out prior inconsistent statements, question the behaviors and do it in a poised, professional manner. There is an art to calmly crushing a witness’ credibility and avoiding appearing like a tyrant. Try it out. Jurors will more likely perceive the confrontation as warranted and professional, not mean. You will appear more confident, making jurors pay attention to your points over your behavior. Of course, it doesn’t hurt that jurors will find it much easier to like you if they perceive you as a “nice” person. Even if, in the battle of the trial, we can’t quite achieve “nice,” we can manage to come away avoiding being perceived as the opposite (you may enter your own term here).
Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.
If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.
Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
http://www.mmgjury.com/
I note that reading of the Pennsylvania Bar Association's Working Rules For Professionalism, along with common decency and courtesy, suggest the following additional ways to be nice in the practice of law:
-Treat others with civility and with professional courtesy
-Simply say "please" and "thank you"
-Promptly return phone calls
-Promptly respond to correspondence
-Respect other attorney's schedules as your own--allow for continuances where needed
-Work with others on scheduling--reasonable requests should never be unreasonably refused
-Grant extensions when you can
-Be punctual for appointments; better yet, be early
-Do not use the Rules of Civil Procedure as a weapon
-Do not threaten, try to say it in a non-confrontative way whenever possible
-Attempt to resolve differences through negotiation and without expensive and time-consuming motions practice
-Whenever possible and warranted, give out compliments to others
-Simply smile.
Surely, being nice and courteous, but firm in your position without being trampled on, can go a long way in advancing one's case along in a quicker fashion and with less stress for all involved. Remember, what goes around, comes around. So get out there and hit them (and neutralize them) with kindness.
Sunday, October 18, 2009
Wednesday, October 14, 2009
Lackawanna County Trial Judge Terrence Nealon Addresses Case of First Impression Regarding Supersedeas Bonds On Appeal
In an opinion filed on October 7, 2009 in the case of White v. Behlke, OB-GYN Consultants, LTD., et al., No. 03-CV-2663 (Lacka. Co. 2009), Judge Terrence Nealon addressed the novel issue of the amount of the appellate security/supersedeas bond that must be filed by a defendant and/or the defendant's insurer when the jury verdict far exceeds the total amount of the available insurance coverage. According to Judge Nealon, the question presented appears to be a matter of first impression in Pennsylvania and there was no reported decisional precedent found on this issue in Pennsylvania prior to this opinion.
In White, after a trial in an obstetrical medical malpractice matter, the jury entered a verdict finding Dr. Behlke and his practice group, OB-GYN Consultants, Ltd. 60% causally negligent and the CMC Hospital in Scranton 40% negligent. The November 17, 2008 verdict was in the amount of $20.5 million dollars, the largest ever in Lackawanna County.
On June 17, 2009, post-trial motions by Defendant Behlke and OB-GYN were denied (CMC previously settled out after the verdict for $6 million dollars) and the court also granted the Plaintiff delay damages that ballooned the judgment in favor of the Plaintiffs on the verdict up to $27,352,195.21.
Pursuant to the joint tortfeasor settlement previously secured by the CMC Hospital, Dr. Behlke and OB-GYN still remained responsible for their 60% of the molded judgment of over $27 million dollars. That 60% figure was $16,411,317.13.
On July 13, 2009, Dr. Behlke and OB-GYN filed an appeal to the Superior Court. Judge Nealon noted that a party filing an appeal may obtain an automatic supersedeas against an execution on that judgment "upon the filing with the clerk of the lower court an appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid." Pa.R.A.P. 1731(a). The purpose of the bond is to protect the judgment in favor of the prevailing party while the other party appeals.
In this matter, Dr. Behlke and OB-GYN filed an application to the trial court to stay the execution on the judgment along with a request to reduce the amount of the required appellate security.
It was argued that the moving defendants should not have to pay a bond to cover the 40% of the verdict that was assessed to the co-defendant CMC Hospital or a bond to cover the amount that would have to be paid by MCARE as the MCARE Fund is not required to post bond in appellate matters under Pennsylvania law. It was additionally argued by the moving defendants that the amount of the required bond should be further reduced so that the defendants would not be deprived of their right to pursue their appeal by virtue of their inability to pay the required bond to stay the execution.
Dr. Behlke and OB-GYN did post bond in the amount of over $1.6 million dollars, which represented 120% of these defendants' primary coverage and pro rata share of delay damages. The primary coverage was provided through their carrier, the Medical Protective Company (Med Pro). It was noted in the opinion that the provisions of Med Pro's policy of insurance expressly limited the bond payment to that calculation of the payment based upon the amount of available policy limits.
The moving defendants additionally asserted that their insurer should not have to post bond in an amount in excess of the available policy limits as that would expose the carrier to possibly having to make a payment above the policy limits should the opposing party prevail on appeal.
The Plaintiffs in White agreed that the moving defendants did not have to post bond to cover the 40% of the verdict assessed to CMC or to cover that portion of the verdict to be paid by the MCARE Fund. The Plaintiffs also agreed that Dr. Behlke did not have to attempt to post bond from his personal assets.
However, the Plaintiffs asserted that, since they had secured an assignment from Dr. Behlke and OB-GYN to pursue a bad faith "failure to settle" claim against Med Pro, Med Pro should be required to pay 120% of the remaining net judgment against Dr. Behlke and OB-GYN in order to obtain the supersedeas and a stay against the execution on the judgment. That bond amount would be over $17 million dollars.
The Plaintiffs argued that Med Pro assumed the risk of the verdict when they refused to enter into a binding high/low agreement prior to the entry of the verdict and should therefore be responsible to pay the appropriate bond in full. The moving defendants opposed this argument by asserting that no bad faith liability on the part of Med Pro had been established to date and, as such, that company should not be obligated to bond the full amount of the net judgment in the interim.
Judge Nealon noted that while Pennsylvania law generally allowed for reductions in supersedeas bonds in certain circumstances under Pa.R.A.P. 1737(1) and under Section 515 of the MCARE Act, there was a dearth of Pennsylvania decisions addressing the judicial reduction of a supersedeas security in appeals in civil litigation matters. Accordingly, Judge Nealon turned to a thorough review of authorities from other jurisdictions for guidance on the issue presented.
Ultimately, Judge Nealon held that "since (1) the insurer's alleged bad faith liability for the excess, uninsured verdict has yet to be established in a separate proceeding, (2) the applicable insurance policies obligate the insurer to furnish bond in an amount not to exceed its policy limits and proportionate share of delay damages and (3) the plaintiffs have already agreed not to seek collection of the excess judgment from the defendant's personal assets in exchange for the defendants' assignment of their putative bad faith claims against their insurer, the defendants have made the requisite showing under Pa.R.A.P. 1737(1) and 40 Pa.C.S.A. Section 1303.515(d) for the requested reduction of their appellate security and the concomitant issuance of a supersedeas against execution."
As such, the reduction sought by Dr. Behlke and OB-GYN (and Med Pro) was allowed.
Obviously, this case can have impact outside of the medical malpractice field and could come into play in premises liability cases and automobile cases where a large verdict is entered.
It is emphasized that, in his opinion, Judge Nealon relied upon, in part, authority from other jurisdictions holding that "the question of whether an insurer is obligated to post security or a supersedeas bond for that portion of a judgment which exceeds the insurer's policy limits depends upon the language of the applicable insurance policy." Therefore, carriers may be wise to ensure that they have such language in their policies as an additional means of limiting their exposure in terms of the amount of a the bond or security that would have to be paid to prevent execution on an excess judgment while appellate remedies are sought after.
Anyone desiring a copy of this opinion may contact me at dancummins@comcast.net.
In White, after a trial in an obstetrical medical malpractice matter, the jury entered a verdict finding Dr. Behlke and his practice group, OB-GYN Consultants, Ltd. 60% causally negligent and the CMC Hospital in Scranton 40% negligent. The November 17, 2008 verdict was in the amount of $20.5 million dollars, the largest ever in Lackawanna County.
On June 17, 2009, post-trial motions by Defendant Behlke and OB-GYN were denied (CMC previously settled out after the verdict for $6 million dollars) and the court also granted the Plaintiff delay damages that ballooned the judgment in favor of the Plaintiffs on the verdict up to $27,352,195.21.
Pursuant to the joint tortfeasor settlement previously secured by the CMC Hospital, Dr. Behlke and OB-GYN still remained responsible for their 60% of the molded judgment of over $27 million dollars. That 60% figure was $16,411,317.13.
On July 13, 2009, Dr. Behlke and OB-GYN filed an appeal to the Superior Court. Judge Nealon noted that a party filing an appeal may obtain an automatic supersedeas against an execution on that judgment "upon the filing with the clerk of the lower court an appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid." Pa.R.A.P. 1731(a). The purpose of the bond is to protect the judgment in favor of the prevailing party while the other party appeals.
In this matter, Dr. Behlke and OB-GYN filed an application to the trial court to stay the execution on the judgment along with a request to reduce the amount of the required appellate security.
It was argued that the moving defendants should not have to pay a bond to cover the 40% of the verdict that was assessed to the co-defendant CMC Hospital or a bond to cover the amount that would have to be paid by MCARE as the MCARE Fund is not required to post bond in appellate matters under Pennsylvania law. It was additionally argued by the moving defendants that the amount of the required bond should be further reduced so that the defendants would not be deprived of their right to pursue their appeal by virtue of their inability to pay the required bond to stay the execution.
Dr. Behlke and OB-GYN did post bond in the amount of over $1.6 million dollars, which represented 120% of these defendants' primary coverage and pro rata share of delay damages. The primary coverage was provided through their carrier, the Medical Protective Company (Med Pro). It was noted in the opinion that the provisions of Med Pro's policy of insurance expressly limited the bond payment to that calculation of the payment based upon the amount of available policy limits.
The moving defendants additionally asserted that their insurer should not have to post bond in an amount in excess of the available policy limits as that would expose the carrier to possibly having to make a payment above the policy limits should the opposing party prevail on appeal.
The Plaintiffs in White agreed that the moving defendants did not have to post bond to cover the 40% of the verdict assessed to CMC or to cover that portion of the verdict to be paid by the MCARE Fund. The Plaintiffs also agreed that Dr. Behlke did not have to attempt to post bond from his personal assets.
However, the Plaintiffs asserted that, since they had secured an assignment from Dr. Behlke and OB-GYN to pursue a bad faith "failure to settle" claim against Med Pro, Med Pro should be required to pay 120% of the remaining net judgment against Dr. Behlke and OB-GYN in order to obtain the supersedeas and a stay against the execution on the judgment. That bond amount would be over $17 million dollars.
The Plaintiffs argued that Med Pro assumed the risk of the verdict when they refused to enter into a binding high/low agreement prior to the entry of the verdict and should therefore be responsible to pay the appropriate bond in full. The moving defendants opposed this argument by asserting that no bad faith liability on the part of Med Pro had been established to date and, as such, that company should not be obligated to bond the full amount of the net judgment in the interim.
Judge Nealon noted that while Pennsylvania law generally allowed for reductions in supersedeas bonds in certain circumstances under Pa.R.A.P. 1737(1) and under Section 515 of the MCARE Act, there was a dearth of Pennsylvania decisions addressing the judicial reduction of a supersedeas security in appeals in civil litigation matters. Accordingly, Judge Nealon turned to a thorough review of authorities from other jurisdictions for guidance on the issue presented.
Ultimately, Judge Nealon held that "since (1) the insurer's alleged bad faith liability for the excess, uninsured verdict has yet to be established in a separate proceeding, (2) the applicable insurance policies obligate the insurer to furnish bond in an amount not to exceed its policy limits and proportionate share of delay damages and (3) the plaintiffs have already agreed not to seek collection of the excess judgment from the defendant's personal assets in exchange for the defendants' assignment of their putative bad faith claims against their insurer, the defendants have made the requisite showing under Pa.R.A.P. 1737(1) and 40 Pa.C.S.A. Section 1303.515(d) for the requested reduction of their appellate security and the concomitant issuance of a supersedeas against execution."
As such, the reduction sought by Dr. Behlke and OB-GYN (and Med Pro) was allowed.
Obviously, this case can have impact outside of the medical malpractice field and could come into play in premises liability cases and automobile cases where a large verdict is entered.
It is emphasized that, in his opinion, Judge Nealon relied upon, in part, authority from other jurisdictions holding that "the question of whether an insurer is obligated to post security or a supersedeas bond for that portion of a judgment which exceeds the insurer's policy limits depends upon the language of the applicable insurance policy." Therefore, carriers may be wise to ensure that they have such language in their policies as an additional means of limiting their exposure in terms of the amount of a the bond or security that would have to be paid to prevent execution on an excess judgment while appellate remedies are sought after.
Anyone desiring a copy of this opinion may contact me at dancummins@comcast.net.
Tuesday, October 13, 2009
ARTICLE: Recurring Symptoms of IME's
Recurring Symptoms of IME's:
Independent medical examinations have given rise to many complex issues
By Daniel E. Cummins
Special to the Pennsylvania Law Weekly (5/7/07)
While an independent medical examination is utilized in most personal injury actions, the law regarding the procedure for IMEs and the discovery issues that may arise is not fully developed. The recurring issues, along with the applicable law, are analyzed below.
Typically, an IME is arranged after the depositions have been completed and all of the records and films have been secured. At times, the defense may wish to attempt to settle the case prior to incurring the substantial expenses related to an IME and the trial deposition of the IME expert. Where such settlement efforts are not successful, the competing interests of the plaintiff moving the case to a prompt resolution and the defendant's desire to complete expert discovery may come into conflict.
Generally speaking, where the damages issues are in dispute, the trial courts will err on the side of caution and allow the defense time to complete expert discovery so as to avoid the creation of any appellate issues.
In this regard, the Superior Court has held that an IME may be compelled even after an arbitration hearing particularly where liability was admitted and the sole issue for the jury involved damages and the limited tort question. McGratton v. Burke, 674 A.2d 1095 (Pa. Super. 1996). One trial court went so far as to rule that an IME may be compelled even after filing a certificate of readiness. Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).
Place and Costs of Exams
In addition to the timing of an IME, the location of the IME may become an issue. Disputes may arise as to the place of the exam and the need for the examinee to travel a distance to attend the exam. In the case of Meeker v. Sarris, 40 Pa.D.&C.2d 643 (C.P. Beaver 1966), the court held that a defendant, in seeking an IME of the plaintiff under Rule 4010, is not required to have such examination completed in the county of the plaintiff's residence or the county where suit was brought.
In today's practice, where there is travel involved for the plaintiff of about an hour or more to get to the place of the IME, the courts will generally require under Pennsylvania Rule of Civil Procedure 4011 that the plaintiff be reimbursed the reasonable expenses related to the same, such as mileage, tolls or food expenses.
Persons Present
Once the time and place of the IME is set up, Rule 4010 advises who may attend the IME in addition to the plaintiff. The rule expressly states that the "person to be examined shall have the right to have counsel or other representative present during the examination."
Experience advises that among those persons who have been allowed to attend IMEs with plaintiffs, include the plaintiff's attorney, a paralegal or legal assistant from plaintiff's attorney's office, or a nurse hired by the plaintiff's attorney to monitor the exam. Although it is likely cost prohibitive, it has even been held that the plaintiff may have his own treating medical expert present at the IME. Harding v. Sears, 47 Pa.D.&C.3d 591 (C.P. Washington 1987).
The plaintiff will not be permitted to compel the defense to pay the fees associated with having the plaintiff's attorney or representative attend the examination. State Farm v. Morris, 432 A.2d 1089 (Pa. Super. 1981).
Recording
While Rule 4010 specifically allows a plaintiff or his or her representative in attendance to audio record an IME, the courts have refused to extend the rule to allow for the videotaping of the same. In State Farm v. Miller, 8 Pa.D.&C. 4th 614 (C.P. Somerset 1990), the court specifically denied the plaintiff's request to videotape an IME as an unreasonable intrusion into the examining room and an undue burden on the physician.
Additionally, under Rule 4010, if an audio recording is made, the plaintiff must produce copy of tape to the defense at reasonable cost upon receipt of a request for the same.
Multiple Examinations
Generally speaking, multiple IMEs will not be allowed by the courts except where just cause exists. Dissatisfaction with an initial IME report certainly does not constitute just cause. Farmer v. Supermarket Gen'l Corp., 10 Pa.D.&C.4th 500 (C.P. Philadelphia 1991). However, in a case where the claim was for permanent injuries and continuing pain, and a year and a half had elapsed since the defendant last had the plaintiff examined, the defendant was allowed another IME in the case of Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).
Where a plaintiff has different types of injuries, such as an orthopedic injury and a dental injury, IMEs with experts of different specialties will generally be allowed.
Production of Reports
On occasion, an IME report unfavorable to the requesting party's position may be generated. The issue becomes whether the requesting party is required to produce that report, particularly where a decision is made not to call the expert as a witness at trial.
Pennsylvania Rule of Civil Procedure 4003.5(a)(3) provides that a party may not obtain discovery regarding any expert that is not expected to be called as a witness at trial, "except a medical expert as provided in Rule 4010(b) [regarding IMEs]....." [Emphasis and bracket added].
In the relatively recent decision of Lloyd v. Lloyd, 889 A.2d 1246 (Pa. Super. 2005), the court partly relied on Rule 4003.5(a)(3) in holding that a medical expert report obtained by an opposing party must be produced. In Lloyd, a former wife submitted herself and her children to a custody evaluation performed by an expert at the request of her former husband. The former husband then initially listed the expert as a possible witness in his pre-trial memorandum. However, a decision was later made by the former husband not to call the expert as a witness at the hearing. The court ruled that the former wife was nevertheless still entitled to discovery of the expert report.
Thus, it appears that the Rules of Civil Procedure and Pennsylvania case law generally require the production of the IME report regardless of the opinion contained therein.
Utilizing an Opponent's Expert Opinion
Although a plaintiff may secure a copy of an IME report of a doctor that the defense does not intend to call as a witness, the plaintiff may not thereafter compel that expert to testify on behalf of the plaintiff at trial. Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003); see also Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. Super. 1996) aff'd. 696 A.2d 1169 (Pa. 1997). The appellate courts have also gone so far as to say the plaintiff may not otherwise utilize such an IME report at trial. Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Commw. 1992).
The rationale behind this rule is an acknowledgement of an expert's proprietary interest in his own opinion and the recognition that he or she should not be required to relinquish it without his consent. An open issue arises as to whether the expert may agree to testify for the plaintiff in exchange for a fee paid by the plaintiff where the expert essentially remains under the employ of the defendant that originally retained the expert.
However, it has been established that where an IME doctor's deposition for trial has been completed, any party may use that deposition for any purpose at trial under Pennsylvania Rule of Civil Procedure 4020(a)(5). See Wiley v. Snedaker, 765 A.2d 816 (Pa. Super. 2000). The rationale behind this rule is that, in such a situation, the defense made the witness available, the expert freely testified, and his testimony thereby became available for use by either party.
Discovery of Bias
A recent hot issue in this area is the extent to which plaintiff's counsel may obtain discovery regarding the potential bias of an IME doctor. Although the Federal Rules of Civil Procedure expressly sets forth the parameters of discovery in this regard under F.R.C.P. 26 (a)(2)(B), no such rule is found in the Pennsylvania Rules of Civil Procedure. Rather, until recently, the state trial courts have been on their own in attempting to carve out their own rules.
One issue that has arisen in the state courts is the ability of a litigant to discover written communications between the opposing party and that party's expert. One trial court that addressed this issue required the production of all written correspondence between plaintiff's attorney and plaintiff's expert witness, but allowed plaintiff's attorney to redact his opinion work product. Pavlak v. Dyer, 59 Pa.D.&C.4th 353 (C.P. Pike 2003).
In its Jan. 9, 2007 decision in Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007), the state Supreme Court attempted to clarify other issues surrounding a party's right to discovery of an expert's potential bias. In Feldman, the Court relied upon its prior holding in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), in ruling that a plaintiff in a personal injury case is not entitled to limited discovery on the financial background expert unless a threshold is first met showing that expert is a professional witness or might color his or her opinion in light of substantial financial incentives.
The Feldman court noted that the plaintiff may attempt to meet the required threshold showing through interrogatories inquiring as to "the approximate amount of compensation received and expected in the pending case, the character of the witnesses' [sic] litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same time period; the approximate portion of the witness's overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services."
From the Feldman opinion it appears that if the threshold showing is met, the courts may allow discovery into a professional witness' finances possibly up to three years back.
As IMEs remain an integral part in evaluating plaintiff's claims of personal injury, the above law will have to be continually developed. Obviously, the law surrounding the use of medical experts and particularly those cases regarding discovery on the potential bias of a medical expert, should also be deemed to apply to plaintiff's experts retained for litigation purposes as well. •
This article by Daniel E. Cummins, Esquire of the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins, first appeared in the Pennsylvania Law Weekly.
This article is reprinted here, with permission, from the May 7, 2007 issue of the Pennsylvania Law Weekly. (c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
Independent medical examinations have given rise to many complex issues
By Daniel E. Cummins
Special to the Pennsylvania Law Weekly (5/7/07)
While an independent medical examination is utilized in most personal injury actions, the law regarding the procedure for IMEs and the discovery issues that may arise is not fully developed. The recurring issues, along with the applicable law, are analyzed below.
Typically, an IME is arranged after the depositions have been completed and all of the records and films have been secured. At times, the defense may wish to attempt to settle the case prior to incurring the substantial expenses related to an IME and the trial deposition of the IME expert. Where such settlement efforts are not successful, the competing interests of the plaintiff moving the case to a prompt resolution and the defendant's desire to complete expert discovery may come into conflict.
Generally speaking, where the damages issues are in dispute, the trial courts will err on the side of caution and allow the defense time to complete expert discovery so as to avoid the creation of any appellate issues.
In this regard, the Superior Court has held that an IME may be compelled even after an arbitration hearing particularly where liability was admitted and the sole issue for the jury involved damages and the limited tort question. McGratton v. Burke, 674 A.2d 1095 (Pa. Super. 1996). One trial court went so far as to rule that an IME may be compelled even after filing a certificate of readiness. Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).
Place and Costs of Exams
In addition to the timing of an IME, the location of the IME may become an issue. Disputes may arise as to the place of the exam and the need for the examinee to travel a distance to attend the exam. In the case of Meeker v. Sarris, 40 Pa.D.&C.2d 643 (C.P. Beaver 1966), the court held that a defendant, in seeking an IME of the plaintiff under Rule 4010, is not required to have such examination completed in the county of the plaintiff's residence or the county where suit was brought.
In today's practice, where there is travel involved for the plaintiff of about an hour or more to get to the place of the IME, the courts will generally require under Pennsylvania Rule of Civil Procedure 4011 that the plaintiff be reimbursed the reasonable expenses related to the same, such as mileage, tolls or food expenses.
Persons Present
Once the time and place of the IME is set up, Rule 4010 advises who may attend the IME in addition to the plaintiff. The rule expressly states that the "person to be examined shall have the right to have counsel or other representative present during the examination."
Experience advises that among those persons who have been allowed to attend IMEs with plaintiffs, include the plaintiff's attorney, a paralegal or legal assistant from plaintiff's attorney's office, or a nurse hired by the plaintiff's attorney to monitor the exam. Although it is likely cost prohibitive, it has even been held that the plaintiff may have his own treating medical expert present at the IME. Harding v. Sears, 47 Pa.D.&C.3d 591 (C.P. Washington 1987).
The plaintiff will not be permitted to compel the defense to pay the fees associated with having the plaintiff's attorney or representative attend the examination. State Farm v. Morris, 432 A.2d 1089 (Pa. Super. 1981).
Recording
While Rule 4010 specifically allows a plaintiff or his or her representative in attendance to audio record an IME, the courts have refused to extend the rule to allow for the videotaping of the same. In State Farm v. Miller, 8 Pa.D.&C. 4th 614 (C.P. Somerset 1990), the court specifically denied the plaintiff's request to videotape an IME as an unreasonable intrusion into the examining room and an undue burden on the physician.
Additionally, under Rule 4010, if an audio recording is made, the plaintiff must produce copy of tape to the defense at reasonable cost upon receipt of a request for the same.
Multiple Examinations
Generally speaking, multiple IMEs will not be allowed by the courts except where just cause exists. Dissatisfaction with an initial IME report certainly does not constitute just cause. Farmer v. Supermarket Gen'l Corp., 10 Pa.D.&C.4th 500 (C.P. Philadelphia 1991). However, in a case where the claim was for permanent injuries and continuing pain, and a year and a half had elapsed since the defendant last had the plaintiff examined, the defendant was allowed another IME in the case of Edelstein v. Tipton, 69 Pa.D.&C.2d 248 (C.P. Philadelphia 1974).
Where a plaintiff has different types of injuries, such as an orthopedic injury and a dental injury, IMEs with experts of different specialties will generally be allowed.
Production of Reports
On occasion, an IME report unfavorable to the requesting party's position may be generated. The issue becomes whether the requesting party is required to produce that report, particularly where a decision is made not to call the expert as a witness at trial.
Pennsylvania Rule of Civil Procedure 4003.5(a)(3) provides that a party may not obtain discovery regarding any expert that is not expected to be called as a witness at trial, "except a medical expert as provided in Rule 4010(b) [regarding IMEs]....." [Emphasis and bracket added].
In the relatively recent decision of Lloyd v. Lloyd, 889 A.2d 1246 (Pa. Super. 2005), the court partly relied on Rule 4003.5(a)(3) in holding that a medical expert report obtained by an opposing party must be produced. In Lloyd, a former wife submitted herself and her children to a custody evaluation performed by an expert at the request of her former husband. The former husband then initially listed the expert as a possible witness in his pre-trial memorandum. However, a decision was later made by the former husband not to call the expert as a witness at the hearing. The court ruled that the former wife was nevertheless still entitled to discovery of the expert report.
Thus, it appears that the Rules of Civil Procedure and Pennsylvania case law generally require the production of the IME report regardless of the opinion contained therein.
Utilizing an Opponent's Expert Opinion
Although a plaintiff may secure a copy of an IME report of a doctor that the defense does not intend to call as a witness, the plaintiff may not thereafter compel that expert to testify on behalf of the plaintiff at trial. Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003); see also Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. Super. 1996) aff'd. 696 A.2d 1169 (Pa. 1997). The appellate courts have also gone so far as to say the plaintiff may not otherwise utilize such an IME report at trial. Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Commw. 1992).
The rationale behind this rule is an acknowledgement of an expert's proprietary interest in his own opinion and the recognition that he or she should not be required to relinquish it without his consent. An open issue arises as to whether the expert may agree to testify for the plaintiff in exchange for a fee paid by the plaintiff where the expert essentially remains under the employ of the defendant that originally retained the expert.
However, it has been established that where an IME doctor's deposition for trial has been completed, any party may use that deposition for any purpose at trial under Pennsylvania Rule of Civil Procedure 4020(a)(5). See Wiley v. Snedaker, 765 A.2d 816 (Pa. Super. 2000). The rationale behind this rule is that, in such a situation, the defense made the witness available, the expert freely testified, and his testimony thereby became available for use by either party.
Discovery of Bias
A recent hot issue in this area is the extent to which plaintiff's counsel may obtain discovery regarding the potential bias of an IME doctor. Although the Federal Rules of Civil Procedure expressly sets forth the parameters of discovery in this regard under F.R.C.P. 26 (a)(2)(B), no such rule is found in the Pennsylvania Rules of Civil Procedure. Rather, until recently, the state trial courts have been on their own in attempting to carve out their own rules.
One issue that has arisen in the state courts is the ability of a litigant to discover written communications between the opposing party and that party's expert. One trial court that addressed this issue required the production of all written correspondence between plaintiff's attorney and plaintiff's expert witness, but allowed plaintiff's attorney to redact his opinion work product. Pavlak v. Dyer, 59 Pa.D.&C.4th 353 (C.P. Pike 2003).
In its Jan. 9, 2007 decision in Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007), the state Supreme Court attempted to clarify other issues surrounding a party's right to discovery of an expert's potential bias. In Feldman, the Court relied upon its prior holding in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), in ruling that a plaintiff in a personal injury case is not entitled to limited discovery on the financial background expert unless a threshold is first met showing that expert is a professional witness or might color his or her opinion in light of substantial financial incentives.
The Feldman court noted that the plaintiff may attempt to meet the required threshold showing through interrogatories inquiring as to "the approximate amount of compensation received and expected in the pending case, the character of the witnesses' [sic] litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same time period; the approximate portion of the witness's overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services."
From the Feldman opinion it appears that if the threshold showing is met, the courts may allow discovery into a professional witness' finances possibly up to three years back.
As IMEs remain an integral part in evaluating plaintiff's claims of personal injury, the above law will have to be continually developed. Obviously, the law surrounding the use of medical experts and particularly those cases regarding discovery on the potential bias of a medical expert, should also be deemed to apply to plaintiff's experts retained for litigation purposes as well. •
This article by Daniel E. Cummins, Esquire of the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins, first appeared in the Pennsylvania Law Weekly.
This article is reprinted here, with permission, from the May 7, 2007 issue of the Pennsylvania Law Weekly. (c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
Sunday, October 11, 2009
Motor Vehicle Accident Fatalities Down 7% in First Half of 2009
According to a recently released study from the National Highway Traffic Safety Administration (NHTSA), traffic-related fatalities were down 7% in first half of 2009 (Jan. to June) when compared to the first half of 2008. According to the study there were an estimated 17,871 such fatalities in 2008. So far in 2009, there has been an estimated 16,626 such accidents involving motor vehicles.
The study cites increased vehicle safety along with the Recesssion that has led to people traveling less as factors influencing the decrease. Surely, the recent high gas prices, nearly hitting $4.00 a gallon, led many people to stay off the road. For more info on this study, you can go to http://www-nrd.nhtsa.dot.gov/Pubs/811207.PDF.
The NHTSA also reported that seat belt use is up from 83% in 2008 to 84% in 2009. For that report, see http://www-nrd.nhtsa.dot.gov/Pubs/811100.PDF.
Obviously, these factors may all have an impact on the number of motor vehicle accident claims presented as well as the number of cases that may ever eventually get into litigation. Arguably, the across the board increase in seat belt use may also provide further support for those in favor of a repeal against the ban against the seat belt defense in civil litigation matters. The seat belt defense asserts that the plaintiff may have contributed to their own injuries by not wearing a seat belt, or raises the alternative argument that the injuries would have been less if the seat belt had been worn.
The ban against the seat belt defense in Pennsylvania was originally passed about 20 years ago when a large majority of people did not use seat belts on a regular basis and were, therefore, a large number of injured parties would have been exposed to the possibility of a seat belt defense if they were ever injured in a motor vehicle accident. According to the above report on seat belt use, there is only a slight minority who would be affected by the seat belt defense in this day and age.
What better way is there to convince the last remaining holdouts to wear their seat belts than to let them know that if they do not take the simple act of applying a seat belt (click!) when they get into a vehicle like the rest of the law-abiding society, it may impact their ability to secure a monetary recovery if they are injured in a motor vehicle accident.
Just a thought. Any comments? If so, click on the "comments" link just below this blog entry. Thanks.
The study cites increased vehicle safety along with the Recesssion that has led to people traveling less as factors influencing the decrease. Surely, the recent high gas prices, nearly hitting $4.00 a gallon, led many people to stay off the road. For more info on this study, you can go to http://www-nrd.nhtsa.dot.gov/Pubs/811207.PDF.
The NHTSA also reported that seat belt use is up from 83% in 2008 to 84% in 2009. For that report, see http://www-nrd.nhtsa.dot.gov/Pubs/811100.PDF.
Obviously, these factors may all have an impact on the number of motor vehicle accident claims presented as well as the number of cases that may ever eventually get into litigation. Arguably, the across the board increase in seat belt use may also provide further support for those in favor of a repeal against the ban against the seat belt defense in civil litigation matters. The seat belt defense asserts that the plaintiff may have contributed to their own injuries by not wearing a seat belt, or raises the alternative argument that the injuries would have been less if the seat belt had been worn.
The ban against the seat belt defense in Pennsylvania was originally passed about 20 years ago when a large majority of people did not use seat belts on a regular basis and were, therefore, a large number of injured parties would have been exposed to the possibility of a seat belt defense if they were ever injured in a motor vehicle accident. According to the above report on seat belt use, there is only a slight minority who would be affected by the seat belt defense in this day and age.
What better way is there to convince the last remaining holdouts to wear their seat belts than to let them know that if they do not take the simple act of applying a seat belt (click!) when they get into a vehicle like the rest of the law-abiding society, it may impact their ability to secure a monetary recovery if they are injured in a motor vehicle accident.
Just a thought. Any comments? If so, click on the "comments" link just below this blog entry. Thanks.
Wednesday, October 7, 2009
Monumental UIM Decision Issued by Pennsylvania Superior Court
On September 23, 2009, the Pennsylvania Superior Court handed down a monumental UIM decision in the case of Pusl v. Means, 2009 WL 3065089 (Pa.Super. 2009, Judges Bowes, Freeburg, and Popovich).
Under the opinion written by Judge Popovich, the Superior Court held that, where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third party defendant tortfeasor, the third party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the underinsured motorist (UIM) benefits previously secured by the Plaintiff.
By way of background, the plaintiff in Pusl had recovered $75,000.00 in UIM policy limits under his own automobile insurance policy from State Farm prior to the completion of the the trial against the tortfeasor defendant. The opinion indicated that the UIM recovery was by settlement.
At the later trial against the defendant tortfeasor, the jury entered an award in favor of the plaintiff in the amount of $100,000.00. In post-trial motions, the defense requested a molding down of the verdict to $25,000.00 after the application of a credit or set-off of the $75,000.00 UIM benefits already previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.
In so ruling, the Superior Court weighed two conflicting public policies against each other. The first was a recognized public policy against double recoveries by plaintiffs. The second policy was that a tortfeasor should be liable for the all of damages he caused.
The Court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." That statute provides that "[i]n any action for damages against a tortfeasor...arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter....shall be precluded from recovering the amount of benefits paid or payable under this subchapter...."
The Court went on to note that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law (MVFRL). The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm." Therefore, according to the court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.
As such, the trial court's molding of the verdict was found to comport with Section 1722 and the public policy of preventing double recoveries by plaintiffs for the same injuries.
The Court disagreed with the plaintiff's argument that the reduction of the verdict amount violated the second noted public policy requiring that a tortfeasor defendant to pay for all of the damages he or she caused. Also rejected was the plaintiff's argument that the defendant was not entitled to a "set-off" of the UIM benefits previously received under the collateral source rule because the UIM benefits were collateral source benefits.
Judge Popovich wrote that by molding the verdict down by the $75,000.00 previously received in UIM benefits, "it appears, at first glance, that the public policy underlying the collateral source rule was ignored in favor of Section 1722 by lessening the amount of damages that the jury attributed" to the defendants.
However, the Court went on to reason that the tortfeasor's liability was not lessened or reduced at all because, State Farm, the carrier that paid the UIM benefits, still had the right to pursue a subrogation claim against the defendants to recover the $75,000.00 in UIM benefits back from the defendants. In other words, even though the verdict was reduced by $75,000.00, and the defendants did not have to pay that portion to the plaintiff, the defendants were still technically liable to State Farm to pay back that amount if State Farm elected to proceed on its subrogation rights. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.
The Pusl Court reiterated that the "result of molding the verdict ensures that the [Plaintiff] will receive the full amount of damages the jury determined would make her "whole," i.e. , $100,000. To allow [plaintiff] to recover $75,000 in UIM benefits from State Farm and $100,000 in damages from [defendants] flies in the face of the established policy of this Commonwealth that an injured person is entitled to only one satisfaction for the harm incurred...."
Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously viewed by some as an anomoly or in error, was cited with approval by the Pusl Court.
The Court Pusl concluded its opinion by restating that it found no error in the trial court's decision to mold down the verdict by the amount of the $75,000 in previously secured UIM benefits "in light of the clear intention of the jury that [the plaintiff] would receive a total damage award of $100,000 for her injury."
It is noted that the plaintiff's attorney in this matter was Michael John Koehler of the Erie, PA law firm of Nicholas, Perot, Smith, Koehler and Wall. Defense counsel was Craig R. F. Murphy from the Erie, PA law firm of MacDonald, Illig, Jones & Britton. Furthermore, amicus curiae briefs were also submitted by the Pennsylvania Association for Justice on the plaintiff's side as well as by the Pennsylvania Defense Institute on the defense side.
There has been no indication to date as to whether an appeal to the Pennsylvania Supreme Court will be filed.
PRACTICE TIPS:
Although the Pusl opinion specifically holds that defense counsel is not required to do so, it may be wise to now in automobile accident matters to include a standard paragraph in the New Matter portion of an Answer and New Matter that asserts a right to a credit or set-off in the amount of any previous UIM benefits secured by a plaintiff against any jury verdict that may be entered against the defendant.
Also, the Pusl opinion teaches that the inclusion of a motion to mold the verdict in post-trial motions is a proper vehicle to bring this issue before the court.
I thank Attorney Matt Dempsey for bringing this case to my attention.
Under the opinion written by Judge Popovich, the Superior Court held that, where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third party defendant tortfeasor, the third party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the underinsured motorist (UIM) benefits previously secured by the Plaintiff.
By way of background, the plaintiff in Pusl had recovered $75,000.00 in UIM policy limits under his own automobile insurance policy from State Farm prior to the completion of the the trial against the tortfeasor defendant. The opinion indicated that the UIM recovery was by settlement.
At the later trial against the defendant tortfeasor, the jury entered an award in favor of the plaintiff in the amount of $100,000.00. In post-trial motions, the defense requested a molding down of the verdict to $25,000.00 after the application of a credit or set-off of the $75,000.00 UIM benefits already previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.
In so ruling, the Superior Court weighed two conflicting public policies against each other. The first was a recognized public policy against double recoveries by plaintiffs. The second policy was that a tortfeasor should be liable for the all of damages he caused.
The Court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." That statute provides that "[i]n any action for damages against a tortfeasor...arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter....shall be precluded from recovering the amount of benefits paid or payable under this subchapter...."
The Court went on to note that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law (MVFRL). The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm." Therefore, according to the court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.
As such, the trial court's molding of the verdict was found to comport with Section 1722 and the public policy of preventing double recoveries by plaintiffs for the same injuries.
The Court disagreed with the plaintiff's argument that the reduction of the verdict amount violated the second noted public policy requiring that a tortfeasor defendant to pay for all of the damages he or she caused. Also rejected was the plaintiff's argument that the defendant was not entitled to a "set-off" of the UIM benefits previously received under the collateral source rule because the UIM benefits were collateral source benefits.
Judge Popovich wrote that by molding the verdict down by the $75,000.00 previously received in UIM benefits, "it appears, at first glance, that the public policy underlying the collateral source rule was ignored in favor of Section 1722 by lessening the amount of damages that the jury attributed" to the defendants.
However, the Court went on to reason that the tortfeasor's liability was not lessened or reduced at all because, State Farm, the carrier that paid the UIM benefits, still had the right to pursue a subrogation claim against the defendants to recover the $75,000.00 in UIM benefits back from the defendants. In other words, even though the verdict was reduced by $75,000.00, and the defendants did not have to pay that portion to the plaintiff, the defendants were still technically liable to State Farm to pay back that amount if State Farm elected to proceed on its subrogation rights. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.
The Pusl Court reiterated that the "result of molding the verdict ensures that the [Plaintiff] will receive the full amount of damages the jury determined would make her "whole," i.e. , $100,000. To allow [plaintiff] to recover $75,000 in UIM benefits from State Farm and $100,000 in damages from [defendants] flies in the face of the established policy of this Commonwealth that an injured person is entitled to only one satisfaction for the harm incurred...."
Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously viewed by some as an anomoly or in error, was cited with approval by the Pusl Court.
The Court Pusl concluded its opinion by restating that it found no error in the trial court's decision to mold down the verdict by the amount of the $75,000 in previously secured UIM benefits "in light of the clear intention of the jury that [the plaintiff] would receive a total damage award of $100,000 for her injury."
It is noted that the plaintiff's attorney in this matter was Michael John Koehler of the Erie, PA law firm of Nicholas, Perot, Smith, Koehler and Wall. Defense counsel was Craig R. F. Murphy from the Erie, PA law firm of MacDonald, Illig, Jones & Britton. Furthermore, amicus curiae briefs were also submitted by the Pennsylvania Association for Justice on the plaintiff's side as well as by the Pennsylvania Defense Institute on the defense side.
There has been no indication to date as to whether an appeal to the Pennsylvania Supreme Court will be filed.
PRACTICE TIPS:
Although the Pusl opinion specifically holds that defense counsel is not required to do so, it may be wise to now in automobile accident matters to include a standard paragraph in the New Matter portion of an Answer and New Matter that asserts a right to a credit or set-off in the amount of any previous UIM benefits secured by a plaintiff against any jury verdict that may be entered against the defendant.
Also, the Pusl opinion teaches that the inclusion of a motion to mold the verdict in post-trial motions is a proper vehicle to bring this issue before the court.
I thank Attorney Matt Dempsey for bringing this case to my attention.
Tuesday, October 6, 2009
CAUTION: Lack of Recorded Voir Dire May Preclude Appellate Review of Objections Raised During Jury Selection
In the case of Allen v. Thomas, 976 A.2d 1279 (Pa.Cmwlth. 2009, Friedman, S.J.), the Commonwealth Court held that the lack of a recorded voir dire proceedings precluded appellate review of the claims of an improper limitation by the trial judge of voir dire questioning by the plaintiff's attorney.
The Allen case arose out out of a motor vehicle accident that occurred in a municipal parking garage. In this Philadelphia County case, the local rules required counsel to request a recording of voir dire if they desired the same. Otherwise, the jury selection process was not recorded or transcribed. Plaintiff's attorney did not request a recording in this matter.
After trial, a defense verdict was entered and the plaintiff appealed, in part, on the grounds that the Philadelphia County trial court judge (Senior Judge Jelin) abused his discretion during the jury selection process by refusing to allow the plaintiff's attorney to question the potential jurors regarding their opinions on tort reform.
In his Rule 1925 Opinion on the issue, the trial court judge denied that he had restricted the plaintiff's attorney in any way from asking questions about tort reform during jury selection.
Thus, the appellate court was faced with an attorney asserting that the judge had acted erroneously during voir dire, a trial court judge who denied that he had restricted the attorney's efforts at questioning the jury in any way, and no transcript of the jury selection proceedings to determine who had the more accurate memory of how the events unfolded.
The Commonwealth Court noted that the plaintiff's attorney's attempt to rely upon other portions of the trial transcript that did referenced the ongoing arguments over the voir dire objections were insufficient to create a reviewable record on the issues presented.
In any event, in those portions of the transcripts, the trial judge was noted to repeatedly state on the record to the plaintiff's attorney that the attorney was "entirely inaccurate and...wrong" in his assertions that the trial judge had limited the voir dire questioning.
Elsewhere in the transcript, the trial judge told plaintiff's attorney, "I gave you every opportunity to ask appropriate questions, Counsel. You chose not to do so."
Surely, where the record on appeal only comes down to a judge's word against an attorney's word, an appellate court is more likely to side with the judge, if only to be able to uphold the trial court's decisions and avoid the need for a retrial, thereby furthering the interests of judicial economy in the overburdened court system.
In this case, the Commonwealth Court noted that, in the absence of any record of the actual voir dire questions at issue or the trial court's ruling on the same, the Commonwealth Court was unable to conclude that the trial court made improper rulings or abused its discretion. Accordingly, the trial court's denial of the plaintiff's post-trial motions was affirmed on appeal.
MORAL OF THE STORY:
ALWAYS ASK FOR A TRANSCRIPTION OF THE VOIR DIRE PROCEEDINGS IN ORDER TO FULLY PROTECT YOUR CLIENT'S INTERESTS
AT THE VERY LEAST, REQUEST THAT VOIR DIRE OBJECTIONS AND COURT RULINGS BE TRANSCRIBED
IF COURT REFUSES TO ALLOW ANY TRANSCRIPTION, PUT ON THE RECORD THAT THE REQUEST FOR A TRANSCRIPTION WAS MADE AND REJECTED BY THE COURT
The Allen case arose out out of a motor vehicle accident that occurred in a municipal parking garage. In this Philadelphia County case, the local rules required counsel to request a recording of voir dire if they desired the same. Otherwise, the jury selection process was not recorded or transcribed. Plaintiff's attorney did not request a recording in this matter.
After trial, a defense verdict was entered and the plaintiff appealed, in part, on the grounds that the Philadelphia County trial court judge (Senior Judge Jelin) abused his discretion during the jury selection process by refusing to allow the plaintiff's attorney to question the potential jurors regarding their opinions on tort reform.
In his Rule 1925 Opinion on the issue, the trial court judge denied that he had restricted the plaintiff's attorney in any way from asking questions about tort reform during jury selection.
Thus, the appellate court was faced with an attorney asserting that the judge had acted erroneously during voir dire, a trial court judge who denied that he had restricted the attorney's efforts at questioning the jury in any way, and no transcript of the jury selection proceedings to determine who had the more accurate memory of how the events unfolded.
The Commonwealth Court noted that the plaintiff's attorney's attempt to rely upon other portions of the trial transcript that did referenced the ongoing arguments over the voir dire objections were insufficient to create a reviewable record on the issues presented.
In any event, in those portions of the transcripts, the trial judge was noted to repeatedly state on the record to the plaintiff's attorney that the attorney was "entirely inaccurate and...wrong" in his assertions that the trial judge had limited the voir dire questioning.
Elsewhere in the transcript, the trial judge told plaintiff's attorney, "I gave you every opportunity to ask appropriate questions, Counsel. You chose not to do so."
Surely, where the record on appeal only comes down to a judge's word against an attorney's word, an appellate court is more likely to side with the judge, if only to be able to uphold the trial court's decisions and avoid the need for a retrial, thereby furthering the interests of judicial economy in the overburdened court system.
In this case, the Commonwealth Court noted that, in the absence of any record of the actual voir dire questions at issue or the trial court's ruling on the same, the Commonwealth Court was unable to conclude that the trial court made improper rulings or abused its discretion. Accordingly, the trial court's denial of the plaintiff's post-trial motions was affirmed on appeal.
MORAL OF THE STORY:
ALWAYS ASK FOR A TRANSCRIPTION OF THE VOIR DIRE PROCEEDINGS IN ORDER TO FULLY PROTECT YOUR CLIENT'S INTERESTS
AT THE VERY LEAST, REQUEST THAT VOIR DIRE OBJECTIONS AND COURT RULINGS BE TRANSCRIBED
IF COURT REFUSES TO ALLOW ANY TRANSCRIPTION, PUT ON THE RECORD THAT THE REQUEST FOR A TRANSCRIPTION WAS MADE AND REJECTED BY THE COURT
Saturday, October 3, 2009
2009 Lackawanna County Bench Bar Conference - Friday, October 9, 2009
This Friday, October 9, 2009, the 28th Annual Lackawanna County Bench Bar Conference will take place at the Hilton Hotel in Scranton, Pennsylvania from Noon to 4:30 p.m. followed by a cocktail hour.
I will be presenting a 2009 Civil Litigation Update. There will also be a Family Law Update and a Criminal Law Update presented by other attorneys. Judge Vito P. Geroulo will put on a presentation entitled Judicial and Attorney Ethics. There will also be a Judicial Forum to end the conference. No word on who the special guest speaker will be this year.
To register, contact the Lackawanna County Bar Association at 570-969-9161.
I will be presenting a 2009 Civil Litigation Update. There will also be a Family Law Update and a Criminal Law Update presented by other attorneys. Judge Vito P. Geroulo will put on a presentation entitled Judicial and Attorney Ethics. There will also be a Judicial Forum to end the conference. No word on who the special guest speaker will be this year.
To register, contact the Lackawanna County Bar Association at 570-969-9161.
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