EVIDENCE-SPOLIATION-ADVERSE INFERENCE

April 5th, 2019 by Rieders Travis in Evidence

Marshall v. Brown’s IA 2019, Pa. Super LEXIS 279 (March 27, 2019) Bowes, J.-Harriet Marshall appeals from the July 10, 2017 judgment in favor of Appellee Brown’s IA, LLC, and alleges that she is entitled to a new trial because the trial court erred in refusing to give an adverse inference instruction based on Appellee’s spoliation of videotape evidence. We vacate the judgment and remand for a new trial. As we stated in Mt. Olivet, supra, at 1269 (quoting Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982)), “[s]poliation sanctions arise out of ‘the common sense observation that a party who has notice that evidence is relevant to litigation and who proceeds to destroy evidence is more likely to have been threatened by that evidence than is a party in the same position who does not destroy the evidence.’” Ms. Marshall asked the court for the least severe spoliation sanction, an adverse inference instruction. On the facts herein, it was warranted, and the court abused its discretion in refusing the charge. Judgement vacated. Case remanded for a new trial. Jurisdiction relinquished. 

EVIDENCE-HEARSAY-BUSINESS RECORD INCEPTION-BANKS

April 4th, 2019 by Rieders Travis in Evidence

Bayview Loan Servicing, LLC v. James Bernard Wicker & Beryl G. Wicker, 2019 Supreme Ct. W.D., (March 28, 2019) Baer, J. – In this case, a party that picked up a bank loan attempted to authenticate documents originally created by the first lender. The Supreme Court did not adopt a bright line rule forbidding the authentication of documents recorded by a third party, nor do we endorse an automatic incorporation doctrine. Instead we will continue to allow our trial courts to utilize their broad discretion in evidentiary matters by applying the business record exception of Rule 803(6) and the Act to determine if the witness “can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness” subject to the opponent rebutting the evidence with any other circumstances indicating a lack of trustworthiness. In Re Indyk’s Estate, 413 A.2d at 373. We additionally observe that Rule 803(6) provides litigants with an alternative method of authenticating documents through the use of Rule 902(11) and (12)’s certification process. Use of this process would arguably reduce the risk that a trial court will find supporting documents…

EVIDENCE-SCIENTIFIC EVIDENCE-FRYE STANDARD-RISPERDAL

November 5th, 2018 by Rieders Travis in Evidence

Pledger v. Janssen Pharms., PA Super. 2018, LEXIS 1167, (October 31, 2018), Strassburger J.-In the Risperdal verdict, which is 2.5 million dollars, doctor-plaintiff is allowed to testify. The court once again talked about the Frye standard and indicated that doctor relied upon diagnosis based on differential diagnosis is legitimate and not subject to Frye. Further, the doctor was qualified to give the opinions which he gave and could rely on photographs. Plaintiffs’ doctor’s methodology was not novel and is generally accepted methodology in the medical community. The defense arguments go to the weight of the testimony.

Evidence Scientific Testimony Frye

June 21st, 2018 by Rieders Travis in Evidence

Walsh v. BASF Corporation, 2018 Pa. Super. LEXIS 686 (June 20, 2018) Bowes, J.  Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased, appeals from the October 14, 2016 order granting summary judgment in favor of Appellees, and challenges the propriety of the trial court’s order barring his experts from testifying pursuant to the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since we conclude that the learned trial court erred in the manner in which it conducted the Frye inquiry herein, we reverse the grant of summary judgment, vacate the order precluding Mr. Walsh’s experts from testifying, and remand for further proceedings. Decedent, Thomas J. Walsh, was employed for almost forty years as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. During his employment, he frequently and regularly applied insecticides and fungicides on the golf courses. Mr. Walsh died on February 2, 2009. His treating oncologist, James Rossetti, D.O., later opined that Mr. Walsh’s extensive chemical exposure, together with “the high-risk karyotype and dyspoietic features associated with [AML] raise a high degree of suspicion that…

EVIDENCE-FACEBOOK

May 11th, 2018 by Rieders Travis in Evidence

Commonwealth of Pennsylvania v. Mangel, No. 703 WDA 2017 (Pa. Super. March 15, 2018) Musmanno, J.  The Commonwealth of Pennsylvania appeals from the Order denying its Motion in Limine to introduce Facebook posts and messages allegedly authored by defendant Tyler Kristian Mangel (“Mangel”). We affirm. On June 26, 2016, Nathan Cornell (“Cornell”) was assaulted at a graduation party. On July 15, 2016, a Criminal Complaint was filed against Mangel, at CR 2939 of 2016, charging him with aggravated assault, simple assault and harassment of Cornell. On March 15, 2017, the Commonwealth filed a Motion for Provider to Provide Subscriber Information seeking to obtain Mangel's Facebook records. The trial court granted the Motion on that same date. At the time of jury selection on May 8, 2017, the Commonwealth filed a Motion in Limine to introduce screenshots of certain pages of a Facebook account for “Tyler Mangel,” consisting of undated online and mobile device “chat” messages. The Commonwealth also sought to introduce a Facebook screenshot wherein a photograph of purportedly bloody hands had been posted by “Justin Jay Sprejum Hunt.” The Commonwealth claims that the trial court erred by applying “a…

EVIDENCE-EXPERTS-CROSS-EXAMINATION-PRESENT SENSE IMPRESSION

November 28th, 2017 by Rieders Travis in Evidence

Lattaker v. Magee Women’s Hospital of UPMC, No. GD-13-021120 (C.P. Allegheny July 5, 2016) Wettick, J.  This is another Judge Wettick opinion in which he steps back on his controversial opinion in McLane v. Valley Medical Facilities, Inc., 157 P.L.J. 252 (C.P. Allegheny Cnty. 2009).  In this opinion, Judge Wettick says that nothing in the claim suggests that a party may object to the testimony of the treating physician or any other witness who testifies that a review of a slide, chart, report, x-ray and the like may be helpful in refreshing the witness’s memory.  Defendants in Lattaker objected to questions directed to treating physician concerning what was shown on a fetal monitoring strip.  If a physician testifies that he or she would be able to recreate the incident if he or she could see a fetal monitoring strip, this discovery is clearly permitted.  In Lattaker, the defendant treating physician testified that if he looked at the fetal monitoring strip he would be able to testify minute-by-minute as to what he did, when he did it, and why he did it.  However, defendant’s counsel advised the witness not to answer…

EVIDENCE-RELEVANCY-MEDICAL MALPRACTICE-MEDICAL RECORDS OF OTHER PATIENTS TO SHOW HOW BUSY DOCTOR WAS

October 31st, 2017 by Rieders Travis in Evidence

Peronis v. United States of America, et al., No. 2:16-cv-01389-NBF (W.D. Pa. August 25, 2017) Fischer, J.  Presently before the Court is Plaintiff’s Motion to Compel, in which the court is asked to order Defendants to produce the redacted medical records of a “high risk” baby treated on the same day as Kendall Peronis.  It is averred that these non-party records could provide relevant information pertaining to the activities of treating medical staff on the day of Kendall Peronis’s death, i.e., whether medical staff were distracted by the needs of the other child. In this Court’s estimation, even if the non-party’s medical records possessed some minimal degree of relevance, Plaintiffs do not articulate why the non-party’s medical records are needed in light of the other evidence obtained through discovery. The Court is likewise unwilling to compel disclosure based upon relevant federal and state law.  Plaintiffs note that the Federal Health Insurance Portability and Accountability Act (“HIPAA”) and related regulations make discovery of the non-party’s medical records possible. However, regulations promulgated pursuant to HIPAA may not supersede contrary provisions of state law if state law imposes requirements, standards, or implementation specifications…

EVIDENCE-PRIVILEGE-ATTORNEY-CLIENT-HEALTHCARE DISPUTE

August 7th, 2017 by Rieders Travis in Evidence

Bousamra v. Excela Health, 2017 Pa. Super. LEXIS 543 (July 19, 2017) Bowes, J.  Excela Health, a corporation (“Excela”), Westmoreland Regional Hospital, doing business as Excela Westmoreland Hospital, a corporation (“Westmoreland Hospital”), Robert Rogalski, Jerome E. Granato, M.D., and J-A20012-16 - 2 - Latrobe Cardiology Associates, Inc. (“Latrobe Cardiology”), filed this appeal from an October 6, 2015 discovery order. Appellants assert that the order in question required them to produce documents that are protected by the attorney-client and work-product privileges. We affirm. On April 26, 2009, Dr. Al-Bassam issued a report that contained a favorable evaluation of the WCC interventional cardiologists. He found that their work demonstrated outstanding skills and judgment, there was no misuse or abuse of the practice of interventional cardiology, and their performance of procedures involved no increased complications or mortality. Appellants filed the present appeal in Dr. BouSamra’s action from the October 6, 2015 order. They advance these issues for our review. 1. Does attorney-client privilege apply to a company's email with its media consultants, if the emails contain the advice of outside counsel and seek feedback so that in-house counsel may give legal advice to…

EVIDENCE-DEAD MAN’S STATUTE-NEGLIGENCE CASE

April 5th, 2017 by Rieders Travis in Evidence

Davis v. Byron Wright, 2017 Pa. Super. LEXIS 130; 2017 PA Super. 48 (February 27, 2017) Stevens, P.J.E. The lower court properly ruled as a matter of law that there was no waiver of the protection of the Dead Man’s Statute.  Therefore, surviving adverse parties were not competent to testify at trial regarding the circumstances surrounding the motor vehicle accident in question.  Appellant’s own testimony is barred under the Dead Man’s Statute.  They have not set forth other competent evidence of fault in support of the negligence claims.  Accordingly, the trial court properly determined there were no genuine issues of material fact.  Appellants failed to produce evidence to establish a prima facie case of negligence.  Therefore, appellee was entitled to entry of summary judgment.

EVIDENCE-PRIVILEGE-REPORTED PRIVILEGE-DEFAMATION

October 19th, 2016 by Rieders Travis in Evidence

DiPaolo v. Times Publishing Co., 142 A.3d 837 (Pa. Super. 2016).  Opinion by Ford Elliott, P.J.E.  Inorder to overcome the reporter’s privilege, the movant must demonstrate (1) that the information sought is material, relevant, and necessary; (2) a strong showing that the information cannot be obtained by alternative means; and (3) that the information is crucial to the movant’s case.  Riley v. City of Chester, 612 F.2d 708, 716-717 (3d Cir. 1979). Here, Judge DiPaolo does not seek disclosure of a confidential source or materials that could lead to the identity of a confidential source; rather, he seeks disclosure of documents related to the editorial process that he contends he needs in order to prove actual malice in his defamation action. We, therefore, find no abuse of discretion in the trial cout’s finding that Judge DiPaolo overcame the reporter’s privilege and its resulting order granting Judge DiPaolo’s motion to compel. Order affirmed. Bender, P.J.E. joins the opinion.