Judge Nealon of Lackawanna County Provides Guidance on Request for Expenses for Out-of-State Expert Deposition for Trial

Tort Talkers may recall that, last week, I produced a summary of Lackawanna County Court of Common Pleas Judge Terrence R. Nealon’s Decision in the case of Locker v. Henzes regarding the admissibility of certain expert testimony in medical malpractice cases.

It has come to my attention that Judge Nealon also issued another decision in the case of Locker v. Henzes, No. 05-CIV-3174 (C.P. Lacka. Co. Jan. 9, 2012 Nealon, J.) addressing a Rule 4008 Motion for Payment for Travel Cost and Fees for an Out of State Trial Deposition.

More specifically, the medical malpractice Defendants filed a joint motion for attorney’s fees and expenses and sought a court order compelling the Plaintiff to pay defense counsel’s fees and travel expenses in connection with an upcoming video tape deposition for trial of the Plaintiff’s medical expert in Austin, Texas.

In its Opinion, the Court noted that, upon receipt of the Defendants’ joint motion, Plaintiff’s counsel offered to make arrangements for defense counsel to participate in the Plaintiff’s medical expert’s trial deposition by way of video conferencing at a rate of $125.00 per hour charged by the video conferencing company. However, since Plaintiff’s counsel planned to attend the trial deposition in person, defense counsel declined the video conferencing alternative offered.

The court noted that the Defendants premised their Motion for Counsel Fees and Travel Expenses upon   Pa.R.C.P. 4008 which provides that “[i]f a deposition is to be taken by oral examination more than 100 miles from the courthouse, the court upon motion may make an order requiring the payment of reasonable expenses, including attorney’s fees, as the Court shall deem proper.”

The Plaintiff countered that requiring the Plaintiff to pay such expenses would create an undue financial burden upon the Plaintiff.

Judge Nealon noted that there was “an absence of appellate precedent or any recent trial court analysis addressing whether an award of counsel fees and expenses is appropriate under Pa. R.C.P. 4008.” See Opinion at p. 4.
Reviewing the language of the rule, and referring to the commentary in Goodrich Amram 2d §4008: 3 (2d Ed.) along with trial court opinions, the court noted that the entry of an order compelling such a payment is “purely discretionary.”

Judge Nealon noted that the relevant factors to be considered under Rule 4008 in this regard included:

-the importance of the deposition,

-the financial status of the parties,

-the importance of cross-examination by trial counsel, and

-the difficulty of retaining and briefing local counsel to conduct that cross-examination at the deposition to site.

Applying these factors to the case at hand, the court in Locker v. Henzes ruled that the defense request for fees and expenses under Rule 4008 should be denied. More specifically, the court found that the Plaintiff’s trial expert’s opinion testimony was vital to the Plaintiff’s malpractice claim, the parties relative financial conditions indicated that the Plaintiff lacked the financial means to pay the defense counsel’s requested costs, and the court also found that a viable and less costly alternative existed in the form of a video conferencing participation.  Judge Nealon therefore ruled that these factors all weighed against granting the Defendants’ motion under Rule 4008.

Anyone desiring a copy of Judge Nealon’s detailed Opinion Locker v. Henzes (Pa.R.C.P. 4008 issue) may contact me at dancummins@comcast.net.

Federal Middle District Court Judge Robert D. Mariani Issues Opinion On Coverage Question in Construction Case

Judge Robert D. Mariani, who recently took the bench in the U.S. Federal District Court for the Middle District of Pennsylvania, has handed down one of his first Opinions on insurance coverage and bad faith issues in the context of the construction-related case of L.R. Costanzo Co., Inc. v. Am. Fire & Cas. Ins. Co., et al.,3:10-CV-774, 2012 U.S. Dist. LEXIS 1655 (Jan. 6, 2012).

By way of background, L.R. Costanzo Co., Inc., a construction company was a general contractor involved in the construction of a building for a client. After the project was completed the client began to notice water damage about the building. The client filed an underlying suit against the construction company alleging (1) breach of contract; (2) breach of warranty; (3) breach of the duty of good faith; and (4) negligence in the construction of the building.

When L.R. Costanzo Co., Inc. turned to its carrier for coverage and a defense, the carrier conducted an investigation and denied coverage. The construction company sued its carrier in the Lackawanna County Court of Common Pleas for breach of contract and bad faith. The carrier removed the matter to Federal Court where it eventually came before Judge Mariani on the carrier’s motion for summary judgment.

On January 6, 2012, the Court granted the Defendants’ Motions for Summary Judgment. In its opinion, the Court addressed, among other issues, whether the carrier(s) sued had breached a duty to defend the construction company in the underlying action, and if so, whether the carrier(s) acted in bad faith in not defending L.R. Costanzo Co., Inc.

Citing well-settled Pennsylvania case law, i.e., Kvaerner Metals Div. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006), Judge Mariani stated that, in determining whether an insurer has a duty to defend the insured, a reviewing court must look only at the underlying complaint and apply the allegations of the Complaint to the insurance policy at issue. L.R. Costanzo at *9. Judge Mariani concluded that the underlying Complaint in this matter, “on its face, the Complaint alleges faulty workmanship as the basis for its counts/claims.” Id. at *11.

The insurance policy at issue allowed for coverage in the event of an “occurrence,” which was generally defined as an “accident” in the policy.

Judge Mariani went on to note that it was equally well-settled that the faulty workmanship alleged in the underlying Complaint has not been considered to constitute an “occurrence” under Pennsylvania law. Id. at *12. The court stated, “there is substantial case law in Pennsylvania and the Third Circuit stating that breach of contract, breach of warranty, and even negligence claims do not give rise to an ‘occurrence’ when it means ‘accident’ as it does here.” Id. at *13.

Relying on Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. Ct. 2007), the Court went on to note that “Even if Plaintiff’s work itself were not faulty and a subcontractor’s work were faulty, there is no duty to defend.” Id. at *15.

The Court also rejected the argument of the construction company that its work was not faulty but was in accordance with the architect’s faulty design. Judge Mariani ruled that even were the Court to decide that the underlying Complaint alleged defective design by the architect, there was still no “occurrence” because Plaintiff’s argument was analogous to asserting faulty workmanship by a subcontractor, which, under Gambone does not result in any implication of coverage.

With regards to the Plaintiff’s bad faith claim, Judge Mariani relied on Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1994), which holds, “[u]nder Pennsylvania law, to recover for bad faith, the insured must show that the insurer ‘did not have a reasonable basis for denying’ the requested relief, and ‘knew or recklessly disregarded its lack of reasonable basis in denying the claim.’” L.R. Costanzo at *18.

After reviewing the evidence presented, the Court held that “Because there was no ‘occurrence’ under the policy, Defendants did not act in bad faith in denying a defense to Plaintiff in the underlying case.” Id. at *19. The Court also found that the carrier(s) engaged in a thorough inquiry before determining that there was no duty to defend.

A copy of Judge Mariani's decision in L.R. Costanzo v. Am. Fire & Cas. Ins. Co. can be viewed here.

Source: Blog post on PDI's blog, Counterpoint Plus, by Attorney Timothy W. Stalker and Attorney Matthew J. Brasch who are both affiliated with the Blue Bell, PA firm of Stalker, Vogrin, Bracken & Frimet.

Northampton County Court of Common Pleas Dismisses Punitive Damages Claim Based on Cell Phone Use

A claim for punitive damages based upon an allegation that the defendant driver was using a cell phone at the time of a motor vehicle accident was recently dismissed in a decision issued on January 11, 2012 by Judge Leonard N. Zito of the Northampton County Court of Common Pleas in the case of Xander v. Kiss, CV - 2010 - 11945 (C.P. Northampton Jan. 11, 2012 Zito, J.).

In his decision, Judge Zito rejected the plaintiff's attempt to base such a claim upon the definition of punitive damages found under the Restatement (Second) of Torts Section 908.  Noting that the Pennsylvania Supreme Court has held that punitive damages are an extreme remedy available only in the most exceptional of circumstances, Judge Zito ruled that the allegations in the plaintiff's Complaint did not rise to the level of egregiousness required by Pennsylvania law to support such a claim.

The court stated that, to the contrary, viewing the facts pled in the Complaint in a light most favorable to the plaintiff, it was only alleged by the plaintiff that the "Defendant simply lost control of his vehicle while speaking on his cellular phone, causing a motor vehicle accident...." 

Judge Zito stated that while such alleged facts may support a claim of negligence, the allegations did not arise to a level of an evil motive or reckless indifference to the rights of the plaintiff as required for a punitive damages claim.  Without any other facts pled to show recklessness, such as excessive speed or running a red light or stop sign, etc., the court found that a punitive damages claim was not warranted in this matter.  Accordingly, the defendant's motion to strike the punitive damages claim was granted.

The prevailing defense attorney in this matter was Attorney Gerald Connor of the Scranton office of Margolis Edelstein.

Anyone desiring a copy of the court's opinion in Xander v. Kiss may contact me at dancummins@comcast.net.


Source of image:  http://www.freedigitalphotos.net/images/view_photog.php?photogid=659

$2.7 Million Dollar Settlement in Federal Middle District Court ATV Crash Case

It was reported in today's Times-Tribune in Scranton by reporter Joe McDonald that the Foley Law Firm secured a $2.7 million dollar settlement on behalf of their client in a fatal ATV crash case.  The 19 year old decedent was a passenger on an ATV driven by an allegedly intoxicated driver during the July 4th weekend in 2009.

Here is a link to the article:  http://thetimes-tribune.com/fatal-atv-crash-suit-settled-for-2-7-million-1.1256877#axzz1jLTK4jGZ

Judge Nealon of Lackawanna County Addresses Admissibility of Expert Testimony in Medical Malpractice Case

In a recent medical malpractice decision of note in the case of Locker v. Henzes, No. 2005-Civil-3174 (C.P. Lacka. Dec. 20, 2011 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed the admissibility of expert testimony tendered by a Plaintiff.

Locker involved a medical malpractice case pertaining to an allegedly erroneous implantation of a femoral trial component rather than the regular permanent component during a total hip replacement procedure.

Prior to trial, the medical malpractice Defendants filed Motions in Limine seeking to preclude the testimony of the Plaintiffs’ pathology expert and biomedical engineering expert. The Defendants argued that those experts should be barred from testifying since their reports were produced beyond the court-established deadlines and since the experts did not satisfy the expert witness competency criteria found in §512 of the Medical Care Available and Reduction of Error (MCare) Act, 40 Pa. C.S.§1303.512. The Defendants also asserted a Frye challenge to the biomedical expert’s analysis and opinions pursuant to Pa. R.C.P. 207.1.

Judge Nealon ultimately ruled that, although the experts’ reports were indeed produced beyond the discovery deadline, they were still served upon defense counsel more than six (6) months prior to the trial. The Court noted that the Defendants had not demonstrated any prejudice as a result of the belated production of the expert reports and, as such, this portion of the Defendants’ motions was denied.

Judge Nealon also found that the pathology expert was properly qualified under the mandates of §512(b) of the MCare Act.

The Court additionally ruled that the biomedical engineering expert would be allowed to testify, based upon his biomechanical evaluation of the trial femoral component, that the implantation of the provisional device caused increased stress shielding and resulted in bone remodeling. However, Judge Nealon ruled that this non-medical expert was not competent under §512(b) to offer opinions on medical causation, including the cause of the decedent’s pain, weakness, and physical limitations.

Judge Nealon further ruled that neither the pathologist nor the biomedical engineer was qualified to testify concerning the applicable standard of care pursuant to §512(c) of the Act.

Last but not least, the Court also denied the Defendants’ Frye Motion with respect to the biomedical engineering expert since the methodology used by that expert did not involve novel scientific evidence that has failed to attain a general acceptance in the relevant scientific field.

Anyone desiring a copy of this medical malpractice decision of Judge Nealon in the case of Locker v. Henzes may contact me at dancummins@comcast.net.

Source of photo: mountainside-medical.com

Third Circuit Says Producing Only Copies Can Be Spoliation

The United States Third Circuit Court of Appeals recently ruled in the case of Bull v. UPS, 2012 WL 10932 (3d Cir. Jan. 4, 2012) (Opinion by Senior Judge Richard L. Nygaard), held that producing copies of documents, as opposed to the originals, can, in certain limited circumstances, constitutes spoliation of evidence.

This matter involves a Claimant who was allegedly injured on the job at UPS. The Claimant began to receive worker’s compensation but was eventually advised by UPS that they did not have anymore work for her.  The company suggested that the Claimant seek permanent disability.

In response, the Claimant produced notes from her own doctor in the form of a second opinion as to her ability to work in a limited fashion. When UPS argued inconsistencies in the doctor's notes produced by the Claimant, noting in part that the signatures of the doctor on the two notes looked different and the amount that the Claimant could lift was changed from 50 pounds in the first note to 70 pounds in the second note, UPS sought a spoliation of evidence sanction.

It was additionally noted that the second doctor’s note produced was cut off on the bottom on the copy and some portions were illegible.

At the trial court level, a New Jersey District Judge had granted a mistrial and invited UPS to file a Motion for Sanctions regarding the alleged spoliation of evidence by the Claimant in terms of failing to produce the original documentation. The trial court judge ultimately determined that the appropriate spoliation sanction was the dismissal of the case with prejudice. The Claimant appealed the Third Circuit Court of Appeals who overruled the trial court.

The Third Circuit Court of Appeals found that the trial court judge abused his discretion in ordering the harsh sanction of a dismissal of the case. While noting that, in some instances, the production of copies of records, rather than the original documents, may constitute spoliation where the original document contains relevant evidence that is not available in the copies, the appellate court ruled that, under the circumstances presented in this case, an adverse inference sanction, albeit still harsh, would have been a more appropriate sanction under the circumstances.

The Third Circuit reviewed the record and found that there was insufficient evidence to establish that the Claimant had intentionally withheld the original doctor's notes which were in her possession. The Court also found that the record left doubt as to whether UPS had ever properly requested the original documents and, if so, whether the Claimant’s counsel had submitted that request to his client.

In a notable footnote 12 in the opinion, the court stated that, “[a]s electronic document technology progresses, the concept of an ‘original’ document is becoming more abstract.” Accordingly, the Third Circuit highlighted its “position that clarity and communications from counsel that establish a record of a party’s actual knowledge of [a duty to search for, maintain, and, where necessary, produce ‘original’ documents] will ensure that this technology-driven issue does not consume an unduly large portion of the court’s attention in future litigation.”

Anyone desiring a copy of this case may click on this link: http://case.lawmemo.com/3/bull.pdf.


Source:  "No Bad Faith, No Spoliation, 3rd Circuit Rules," Legal Intelligencer by Gina Passarella (Jan. 6, 2012).

Recent Eastern District Federal Court Bad Faith Case of Note

In a decision handed down last month, the Eastern District Court of Pennsylvania ruled in Zenith Ins. Co. v. Wells Fargo Ins. Services of Pennsylvania, Inc., 2011 WL 6210686 (E.D.Pa. Dec. 13, 2011) (mem.), that the bad faith statute, 42 Pa.C.S. Section 8371 was not limited to a claim involving a denial of benefits.

In Zenith, the court noted that the bad faith statute should be construed as a remedial statute is designed to be broadly construed as a remedy for all instances of bad faith by insurer whether occurring before, during or after litigation.

Anyone desiring a copy of the recent bad faith decision of note may contact me at dancummins@comcast.net.