by Mark Bauman | Apr 21, 2023 | Legal News, Medical Malpractice
In Barrick v. Holy Spirit Hospital, Sodexho Management, Inc., et al., Carl Barrick was injured on the property of Defendant, Holy Spirit Hospital, when a chair he was sitting on in the hospital cafeteria collapsed on March 29, 2006. Barrick filed suit against defendants on June 18, 2007. During the course of litigation, Defendant Sodexho Management, Inc. served a subpoena on Barrick’s treating physician, for the purpose of obtaining his medical records. In response, the practice group to which the physician belonged stated that it would produce Barrick’s file, but otherwise would exclude any materials which were not generated for the purposes of Barrick’s treatment. Notably, Barrick’s treating physician was also serving as plaintiffs’ expert witness. Sodexho thereby filed a motion to compel to enforce the subpoena.
Following an in camera review of the pertinent correspondence between the physician and Barrick’s attorney, the trial court entered an order granting Sodexho’s motion to enforce the subpoena on October 16, 2009. Following an appeal by Barrick, the Superior Court affirmed the trial court’s order on September 16, 2010. Barrick thereafter sought reargument en banc. On November 19, 2010, the Superior Court entered an order withdrawing the panel’s opinion and ordering reargument. On November 23, 2011, an en banc panel for the Superior Court reversed and remanded.
Despite the “general parameters” for discovery outlined in Pa.R.C.P 4003.1, the court noted that Rule 4003.5 “should be read to restrict the scope of all discovery from non-party witnesses retained as experts in trial preparation.” According to the court, Rule 4003.5(a)(1) “narrowly defines the substantive inquiries that a party may require an opposing expert to answer in an interrogatory,” as “a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion.” Referencing its 2006 opinion in Cooper v. Schoffstall, the court noted that parties must show cause and obtain a court order to obtain any additional discovery of testimony by an expert witness “other than [the] narrowly defined set of interrogatories” described in 4003.5. Furthermore, as the information sought by defendant’s subpoena qualified as “further discovery by other means,” the court held that the under Rule 4003.5(a)(2), a court order should have been obtained before Sodexho’s request was made.
The court held that the information sought in Sodexho’s subpoena exceeded the permissible scope of discovery in two ways. First, while Sodexho’s subpoena was intended to obtain discovery directly from Barrick’s expert witness, 4003.5(a)(1) “does not authorize any party to discover any written document directly from an expert witness.” Second, in light of the foregoing analysis, the court determined that Sodexho’s request for correspondence between plaintiffs’ attorney and their expert witness ultimately fell outside the permissible scope of Rule 4003.5(a)(1).
The en banc opinion also discussed Rule 4003.3 and the Explanatory Comment regarding attorney work product. Specifically, the court noted that while the work product doctrine is not absolute, the privilege only surrenders to the need for discovery when the attorney’s work product itself becomes relevant to the action. Moreover, under Rule 4003.5(2) cause must be shown demonstrating why the privilege must yield to the need for discovery. In Barrick, the court found that the correspondence at issue was not relevant to the action, and thus concluded that Pa.R.C.P. 4003.3 served as a separate and independent basis for the decision.
The holding in Barrick was accompanied by a concurring and dissenting opinion by Judge Bowes. Specifically, Bowes supported the majority’s analysis of permissible expert discovery under Rule 4003.5, but took exception to the “blanket work-product protection to all communications” pursuant to Rule 4003.3. According to Judge Bowes, it was improper to impose attorney work product protection with regard to all communication between Barrick’s attorney and his expert, as Rule 4003.3 only prohibits disclosure of an attorney’s mental impressions which, Bowes noted, may not necessarily be contained in the communication protected from discovery. Furthermore, Judge Bowes wrote that because an expert witness is not an “attorney, consultant, surety, indemnitor, insurer[, ]agent,” or other entity specified under Rule 4003.3, communication from an expert witness is not entitled to protection under Rule 4003.3.
by Mark Bauman | Apr 21, 2023 | Legal Malpractice, Legal News
In Sklodowsky v. Lushis, the Appellate Division of the Superior Court of New Jersey recently had the opportunity to reexamine the application of the entire controversy doctrine to legal malpractice actions.
John F. Lushis, Jr., Esquire represented Paul G. Sklodowsky in the potential sale of real property. An agreement of sale was entered with American Developers of New Jersey, Inc. (“ADNJ”). When ADNJ learned that Sklodowsky was attempting to sell the property without the consent of his wife, it refused to complete the sale.
On October 7, 2004, Sklodowsky filed suit against ADNJ, seeking to retain its $85,000 deposit as liquidated damages. ADNJ filed a counterclaim against Sklodowsky, and filed a third-party complaint against Lushis. Lushis moved for summary judgment which was granted.
On October 22, 2007, Sklodowsky filed a complaint against Lushis for professional negligence, breach of contract, and breach of fiduciary duty. However, the complaint was not served and was eventually dismissed without prejudice pursuant to New Jersey Rule of Court 1:13-7 for lack of prosecution.
In a third action, a partner of Lushis filed suit against Sklodowsky in federal court to collect payment for their prior legal services. Sklodowsky filed a counterclaim against the plaintiff and a third-party complaint against Lushis for professional negligence. A motion to dismiss Sklodowsky’s claims was granted on the basis of improper joinder and the professional negligence claim was dismissed without prejudice.
Finally, on November 4, 2009, Sklodowsky filed the lawsuit at issue in the appeal against Lushis, again alleging professional negligence with regard to the failed transaction. Lushis filed a motion to dismiss based on the entire controversy doctrine which was granted by the trial court.
In New Jersey, the entire controversy doctrine, adopted as Rule 4:30A, requires the joinder of “all causes, claims, and defenses related to a controversy.” Omitted claims are precluded. Prior to 1997, New Jersey courts interpreted the entire controversy doctrine as requiring a litigant who believed that his or her attorney was negligent to join his or her attorney in the underlying lawsuit that gave rise to the claim. Joinder was required even if the attorney continued to represent the litigant.
In Olds v. Donnelly, 150 N.J. 424, 441 (1997), the New Jersey Supreme Court relaxed the application of the entire controversy doctrine to legal malpractice actions, finding that the “risk of the disclosure of privileged information and the generally adverse effects on the attorney-client relationships outweigh any benefit from requiring a client to assert a malpractice claim in the pending lawsuit.”
The trial court reasoned that the entire controversy doctrine applied despite Olds because Olds concerned the joinder of parties rather than the joinder of claims. The trial court felt that dismissing the claim was consistent with the purposes of the entire controversy doctrine.
The Appellate Division reversed, finding that the reasoning inherent to Olds applied. It stated that “[a]pplying the entire controversy doctrine in such a case can chill a client’s relations with his or her attorney and cause the client’s and the attorney’s interests to diverge, potentially prejudicing them both.”
The purpose of the entire controversy doctrine, according to the Appellate Division, is to 1) prevent piecemeal decisions, 2) promote fairness to the parties, and 3) advance the goal of judicial efficiency. While acknowledging that its decision did not prevent piecemeal decisions or promote judicial efficiency, the Appellate Division held that fairness to the parties was paramount and prevented dismissal. The court relied heavily on the fact that requiring Sklodowsky to sue Lushis in the underlying case “would have resulted in a divergence of their respective interests” which “would have further compromised an already strained attorney-client relationship.”
Lushis did not show that the passage of time had prejudiced his interests in defending against Sklodowsky’s claims. The court further held that the previously dismissed actions were not relevant because they were dismissed without prejudice. Finally, it is important to note that the statute of limitations for legal malpractice claims in New Jersey is six years. Therefore, Sklodowsky’s claim was not barred on statute of limitations grounds.
by Mark Bauman | Apr 20, 2023 | Legal News, Medical Malpractice
In a three-judge panel’s decision filed on September 16, 2010, the Superior Court in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al. affirmed the trial court’s order of October 16, 2009, which granted the discovery and production of correspondence between counsel for Appellants and Appellants’ treating physician and designated expert witness for trial.
Appellants filed suit against Appellees when Appellant was injured when a chair collapsed underneath him in the cafeteria at Holy Spirit Hospital. Appellant received care from his treating physician and designated expert witness shortly thereafter. During discovery, Appellees served subpoenas to procure Appellant’s medical file, including written correspondence between Appellant’s counsel and Appellant’s treating physician which pertained to the physician’s role as the designated expert in the case. After an in camera review of the correspondence, the trial court entered an order directing production of the requested documents.
In reviewing the order of the trial court, the Superior Court turned first to Appellee’s contention that Appellant’s failure to object to the subpoenas with 20 days of service constituted waiver of objection. Drawing on its decision in McGovern v. Hospital Service Association, 785 A.2d 1012 (Pa.Super. 2001), which, describing the court’s reluctance to compel any privileged discovery, held that such a failure to object within the prescribed time period did not automatically waive the right to object, the court determined that Appellants had indeed objected to the subpoenas at issue when they realized that privileged information was a potential target of Appellee’s request. As such, the court declined to find any waiver on the part of Appellants.
Turning next to the merits of Appellant’s appeal, the Superior Court sought to reconcile the apparent conflict between PA Rule 4003.3, which prohibits discovery of the mental impressions of a party’s representative in preparation for litigation, and 4003.5, which requires disclosure of the substance of facts and opinions underlying a testifying expert’s conclusions. The court ultimately held that if an expert witness is being called to advance a party’s case-in-chief, the expert’s opinion and testimony may be impacted by correspondence with the party’s counsel. Thus, the attorney’s work-product doctrine must yield to the discovery of those communications.
Deeming Appellant’s request to conduct an in camera inspection of the correspondence as impractical, the Superior Court justified its holding by claiming that the attorney work product privilege is “not sacrosanct.” Rather, according to the court, Appellants’ counsel could not reasonably expect his work product to remain privileged when Appellees were undoubtedly entitled to discover, under PA Rule 4003.5(b), the substance and grounds for the testifying expert’s opinion. Ultimately, discovery of such information was deemed necessary to test the weight and veracity of the expert’s conclusions. As such, the court concluded that the medical records already produced by Appellants did not contain all the information upon which the expert had relied, as direction from counsel may very well have acted as an additional basis for the expert’s opinion. As a result, the order of the trial court was upheld and the communications were deemed discoverable.
On November 19, 2010, the Superior Court withdrew the foregoing opinion, granting a petition for en-banc re-argument.
by Mark Bauman | Apr 20, 2023 | Legal Malpractice, Legal News
In the court’s opinion of August 6, 2010, Judge Kent H. Albright refused to recognize a conflict of interest existing between Defendant-insurance company and its appointed attorney when Defendant invoked a reservation-of-rights clause to potentially limit the coverage provided in a defamation suit brought against Plaintiff-insured.
Upon being served with a complaint for a defamation action, of which included counts of punitive damages, Plaintiff submitted a copy to Defendant, her insurer. Because Plaintiff’s policy with Defendant excluded coverage for defamation, intentional acts, and punitive damages, Defendant issued to Plaintiff a notice reserving its right to provide coverage for these claims. Nevertheless, pursuant to its policy with Plaintiff, Defendant agreed to investigate the defamation lawsuit through its own appointed attorney. Concerned that Defendant’s reservations to provide coverage would create a conflict of interest between Defendant and the appointed attorney, Plaintiff retained her own private counsel and requested that Defendant pay for the respective legal services. When Defendant refused this request, Plaintiff brought suit against Defendant seeking both Declaratory Judgment and a Preliminary Injunction.
In her motion for a Preliminary Injunction, Plaintiff’s privately retained counsel acknowledged that there existed “no controlling Pennsylvania case law” on which to grant Plaintiff injunctive relief. Rather, counsel petitioned the court to create a new law regarding the alleged conflict of interest. The court denied this request, holding first that Plaintiff had failed to establish the “essential prerequisites” of a preliminary injunction set forth in Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003).
Citing to Canoe Rental Inc. v. Tinicum Twp., 110 F.R.D. 166, 170 (E.D. Pa. 1986), the court then added that no conflict of interest existed between Defendant and its appointed attorney, stating that “once engaged in an attorney-client relationship with the insurer’s insured, the lawyer is ethically bound to advocate exclusively on behalf of the insured client, regardless of who hires him or her or pays for the costs of the insured’s representation.” Despite Defendant’s control over the hiring and firing of its appointed counsel, the court further disclaimed the existence of a conflict, stating that Defendant did not exercise control over the “decision-making or judgments made” regarding Plaintiff’s defense. Finally, Plaintiff’s reliance on Pennsylvania Rule of Professional Conduct 1.7, which prohibits the representation of clients under concurrent conflicts of interest, was also found to be incorrect, since Plaintiff was found the sole client of Defendant’s appointed counsel.
by Mark Bauman | Apr 19, 2023 | Legal News, Medical Malpractice
The Pennsylvania Superior Court, in a 2006 ruling, held that a nurse was qualified to offer expert testimony in Freed v. Geisinger Medical Ctr, 607 Pa. 225, 5 A.3d 212 (2010).
The Pennsylvania Supreme Court considered Freed in June of 2009 and the question of whether a nurse may provide expert testimony on the issue of medical causation. The Superior Court in its opinion took great care to distinguish the facts of Freed from Flanagan v. Labe, 690 A.2d 183 (Pa. 1997), which held that nurses are prohibited from making medical diagnoses on the basis of the Professional Nursing Law, after consideration of the merits of stare decisis, the Supreme Court went right at Flanagan and overturned its prior ruling.
In September of 2010, The Pennsylvania Supreme Court reaffirmed its earlier ruling which overruled Flanagan. The Court determined that the issue of whether Flanagan should be overruled had not been waived by the plaintiff when a chief issue before the Superior Court was whether Flanagan could be distinguished from the instant case. Furthermore, the Supreme Court is not prevented from sua sponte overruling an incorrect decision.
On the question of whether it was proper to overrule Flanagan, the Court held that the defendant had presented no new arguments. Accordingly, the Court reaffirmed its prior decision.
by Mark Bauman | Apr 19, 2023 | Legal Malpractice, Legal News
A client who sues its lawyer for legal malpractice may sue in any county in which the law firm regularly conducts business regardless of whether it has an office in that venue. Zampana-Barry v. Donaghue, 246 EDA 2006 (March 8, 2007).
A client sued his lawyer and his lawyer’s law firm for legal malpractice for mishandling of a personal injury suit against K-Mart Corporation. The client alleged that her lawyer failed to protect her right to proceed against K-Mart after K-Mart filed for bankruptcy. As a result, the client’s claim against K-Mart was dismissed on summary judgment.
The lawyer’s office is located in Philadelphia County but the client sued in Philadelphia County. The lawyer and his firm sought to have the case transferred to Delaware County alleging that venue was improper since they did not regularly conduct business in Philadelphia County. The trial court disagreed and found, after applying the quality-quantity test established by the Pennsylvania Supreme Court in Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990), that the law firm performed acts in sufficient quality and quantity to establish venue in Philadelphia County.
The Superior Court reviewed the evidence relied on by the trial court and agreed that venue was proper in Philadelphia County. The evidence included statements made by the lawyer that the purpose of the law firm was to perform legal services and that 3-5% of the firm’s revenue came from representing clients in Philadelphia County in both state and federal courts. The Superior Court disagreed with the lawyer’s contention that since his office was located in Delaware County venue was improper in Philadelphia. It found that the fact that venue is present in Delaware County does not negate the existence of venue in Philadelphia County. It also found that the acts performed by the lawyer and his firm in Philadelphia were not incidental but, rather, were essential to the law firm’s existence.
