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Evidence

July 23rd, 2019 by Rieders Travis in Evidence

EVIDENCE-EXPERTS-LAYMAN’S KNOWLEDGE

Getting v. Mark Sales and Leasing, No. 18-1228 (C.P. Lycoming June 3, 2020) Linhardt, J.  This opinion by Judge Linhardt carefully spells out when, in connection with a riding mower, an expert report usurps the role of a layperson.  The court determined that riding a lawnmower in a negligent matter by failing to heed warning labels and failing to determine the slope of one’s lawn is not beyond the ken of an average layperson.  The expert may testify that turning on the slope was dangerous and caused the accident, but whether it was negligent for the rider to fail to read the warnings is again within the ken of an average person.  Alleged negligence in failing to heed warning labels and failing to determine slope of lawn is not a suitable subject for expert testimony.

EVIDENCE-RES IPSA LOQUITUR-SURGICAL INCIDENT

Snyder v. Scranton Hospital Company, No. 19 CV 83 (C.P. Lackawanna August 28, 2020) Nealon, J.  A podiatrist, who underwent an outpatient, right eardrum repair procedure under general anesthesia and awoke with left arm and shoulder pain that his treating physicians subsequently diagnosed as severe left ulnar never neuropathy secondary to compression trauma and resulting in permanent disability notwithstanding surgical interventions, instituted this malpractice action against the anesthesia care providers for his ear surgery and the hospital that owns the surgery center where that procedure was performed.  The podiatrist has produced reports from several experts who conclude that the defendants deviated from the applicable standards of care by failing to appropriately position, protect, and periodically assess the podiatrist and his left arm while he was unconscious, and thereby caused his ulnar nerve compression injury.  Based upon the additional expert opinion that traumatic left ulnar nerve neuropathy ordinarily does not occur during a right ear tympanoplasty in the absence of negligence, and that other responsible causes for the podiatrist’s injury are sufficiently eliminated, the podiatrist has invoked the evidentiary doctrine of res ipsa loquitur which permits the jury to infer negligence and causation from the mere occurrence of the injury and the defendants’ relation to it.  Relying upon the defense experts’ opinions that the podiatrist’s pre-existing gout and cervical spine fusion surgery 5-1/2 years earlier could possibly account for his ulnar nerve condition, the defendants have filed motions for partial summary judgment with respect to the podiatrist’s res ipsa loquitur argument, as well as his claims that he suffered post-operative bruising and internal bleeding involving his left arm and did not experience comparable issues with his left arm prior to the right ear surgery.

 

To secure partial summary judgment as to the application of res ipsa loquitur, the defendants’ evidence must be “so conclusive as to leave no doubt” that the podiatrist’s ulnar nerve damage was not caused during his right ear procedure, or that severe ulnar nerve neuropathy commonly occurs during that outpatient surgery “without negligence on the part of anyone” and despite “the exercise of all reasonable care.”  The podiatrist’s experts have characterized the potential causes proffered by the defense experts as “clearly incorrect,” “inaccurate,” “inconceivable,” “mak[ing] no logical sense,” and contrary to the podiatrist’s objective test results and surgical findings.  Res ipsa loquitur is not rendered inapplicable merely because the defense produces a quantity of contrary evidence and where different conclusions regarding the existence or absence of negligence may be reasonably reached based upon the totality of the evidence, only the jury may determine whether res ipsa loquitur applies and an inference of negligence should be drawn.  Therefore, the defendants’ motions for partial summary judgment relative to the application of the doctrine of res ipsa loquitur will be denied.  Furthermore, inasmuch as the record contains evidence of bruising and internal bleeding involving the podiatrist’s left triceps and clear factual disputes as to whether he experienced similar left arm problems before the ear surgery, the motions for partial summary judgment will also be denied as to those evidentiary issues.

EVIDENCE-EXPERTS-LAYMAN’S KNOWLEDGE

Getting v. Mark Sales and Leasing, No. 18-1228 (C.P. Lycoming June 3, 2020) Linhardt, J.  This opinion by Judge Linhardt carefully spells out when, in connection with a riding mower, an expert report usurps the role of a layperson.  The court determined that riding a lawnmower in a negligent matter by failing to heed warning labels and failing to determine the slope of one’s lawn is not beyond the ken of an average layperson.  The expert may testify that turning on the slope was dangerous and caused the accident, but whether it was negligent for the rider to fail to read the warnings is again within the ken of an average person.  Alleged negligence in failing to heed warning labels and failing to determine slope of lawn is not a suitable subject for expert testimony.

EVIDENCE-HEARSAY-STATE POLICE-PILL COUNT-OBJECTIONS

Talmadge v. Ervin, 2020 Pa. Super. LEXIS 629 (July 28, 2020) Stabile, J.  Lawsuit brought claiming that doctors prescribed the wrong medication and in combination with each other caused the death of plaintiff’s decedent from QT syndrome.  The main objection appeal is that appellant challenged trial court’s order granting appellee’s pretrial motion in limine to exclude a document contained within the state police report and appellant’s expert report as the document.  The document was an unsigned, handwritten note indicating that decedent was prescribed 20 pills of Biaxin, of which 12 remained in the bottle after her death.  The Pill Count Document was part of the police investigation file produced in response to a subpoena.  Appellant was to argue based on the date of the prescription and the date of death that decedent ingested all 8 of the missing pills, which would have been in accord with the prescribed dosage over that time.  There was no direct evidence that decedent took more than one Biaxin.  The autopsy toxicology screen did not reflect Biaxin present, but it is unclear whether it was screened for.  No one other than appellant reported seeing decedent take Biaxin, and he saw her only take one.  The court concluded that the document was hearsay and should not be admitted.  The trial court permitted appellant to attempt to authenticate the Pill Count Document at trial by calling the state police officer who prepared and produced the report, but appellant did not do so.  The court reversed the case and sent it back for trial because appellee’s lawyer objected when appellant introduced the Pill Count Document but only at a lone exchange.  There was no stipulation at the deposition to reserve objections, and the Pill Count Document was in the possession of all parties prior to the deposition.  Appellees failed to object when appellant counsel introduced it on redirect examination in direct response to appellee’s question on cross-examination. The only objection did not address the Pill Count Document, much less that it was hearsay.  Appellees could have made a hearsay objection when appellant’s counsel introduced the Pill Count Document but failed to do so.  Appellees failed to preserve their objection to the Pill Count Document.  Since the number of Biaxin pills ingested was an important issue, the error is not harmless and the matter was remanded for new trial.

EVIDENCE-PRIVILEGE-ATTORNEY CIENT-MEDICAL MALPRACTICE-ANNOTATION ON MEDICAL RECORDS

Ford-Bey v. Professional Anesthesia Services of North America, 2020 Pa. Super. LEXIS 143 (February 20, 2020) Bowes, J.  Client annotated medical records with his notes.  It was not done at the direction of the attorney. The court said it was not attorney-client privilege and had to be turned over.  The Superior Court found no error of law or abuse of discretion on the part of the trial court.  The client failed timely to satisfy the element requiring proof that his notes were communicated or intended to be communicated to his attorney or reflected communications from his attorney.  The requirements were just not satisfied.

EVIDENCE-EXPERTS-REASONABLE DEGREE OF MEDICAL CERTAINTY

This case raised an issue which often comes up and that is whether a doctor testifies to a reasonable degree of medical certainty. The court went through his testimony in great detail.  A medical opinion only needs demonstrate with a reasonable degree of medical certainty that Defendant’s conduct increased the risk of harm sustained.  It is then up to a jury to determine substantial factor.  This case involved DVT in patients who are immobile after surgery.  The doctor works in Boston and he explained he is accustomed to offering opinions as “more likely than not.”  That is a Massachusetts standard.  He testified that “more likely than not” and “reasonable degree of medical certainty” mean the same thing to him.  He testified in great detail that he believed there was a cause and effect relationship.  He said that he held his opinion to a reasonable degree of medical certainty.  He said decedent’s survival was more likely than not had he been treated properly.  The doctor said that he was “quite certain” that his opinions were correct.  The court said this case was similar to Vicari.  Dr. Campbell, in this case, expressed his opinions with certainty and gave a detailed analysis of the facts that he believed supported his opinion.  This creates a jury issue.  New trial only as to that one defendant to whom the opinion applied and not to others who also succeeded in achieving a defense verdict.  Rolon vs. Davies, 2020 Pa. Super. LEXIS 354.

EVIDENCE-EXPERTS-OPINION-DEFENDANT DOCTOR

Howarth-Gadomski v. Henzes, No. 18 CV 2585 (C.P. Lackawanna November 27, 2019) Nealon, J. Defendant in this medical malpractice case was instructed by attorney not to provide “opinion” testimony.  Plaintiffs assert Pennsylvania Rule of Civil Procedure 4003.1(c).  

No Pennsylvania statute, rule, or appellate authority entitles a malpractice defendant-deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.  Rule 4003.1(c), the Explanatory Comments to Rules 4003.1 and 4003.5, and our decisional precedent firmly state that such a party-deponent may not object to deposition inquiries on the basis that they seek opinion testimony, and that a defendant-physician need not author a pre-trial expert report since any plaintiff may discover that party’s opinions via an oral deposition.  Consequently, plaintiffs’ motion to compel will be granted and the defendant-physician will be ordered to submit to a second deposition in order to answer medical opinion and standard of care questions.  During that deposition, defense counsel may direct the defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privilege, to enforce an evidentiary limitation established by an earlier court ruling in this case, or to present a motion for a protective order based upon grounds identified in Pa.R.C.P. 4012(a).  Additionally, if the defendant-physician and his counsel choose to discuss the subject matter of this malpractice case during any recess of that deposition, the examining attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

It has long been recognized in Pennsylvania that a non-party expert witness cannot be compelled over the expert’s objection to testify as an expert witness on behalf of a party adverse to the party that originally hired the expert witness.

The Supreme Court adopted Pennsylvania Rule of Civil Procedure 4003.1(c), which addresses the scope of discovery generally, and states that “it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.”  Pa.R.C.P. 4003.1(c).  The “Explanatory Comment – 1989” to that rule confirms that “[o]pinions are presently discoverable in Pennsylvania,” “[t]he prohibition against the discovery of opinions formerly contained in rule 4011(f) was rescinded in 1978,” and Rule 4003.1(c) “make(s) it clear that opinions and contentions may be discovered by any method of discovery.”

Based upon Rule 4003.1(c), the Explanatory Comments to Rules 4003.1 and 4003.5, and the appellate authority in Neal by Neal v. Lu, 530 A.2d 103 (1987) and Jistarri v. Nappi, 549 A.2d 210 (1988), it is clear that plaintiffs should be permitted to question defendant-physicians concerning their medical opinions and whether their treatment complied with the standard of care.  Dr. Henzes and SOS have not cited any statute, rule, or decisional precedent establishing a defendant-physician’s civil right against self-incrimination in a medical professional liability action.  Nor does the requirement of answering standard of care inquiries somehow impermissibly shift the burden of proof to a defendant-physician. 

We too have embraced the restrictions that Hall v. Clifton Precision, Division of Litton Systems, Inc., 150 F.R.D. 525 (E.D. Pa. 1993) imposed upon counsel’s ability to instruct the deponent-client to decline to answer inquiries.  See Ezrin v. Hospice Preferred Choice, Inc., 2018 WL 4778396, at *5 (Lacka. Co. 2018) (quoting the admonition in Hall that “there is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness formulate answers.”).  More importantly, the Explanatory comment to Pennsylvania Rule of Civil Procedure 4017.1 governing video depositions also criticizes unwarranted instructions not to answer deposition questions, and provides:

There has been a noted lack of civility of parties, deponents, and attorneys in connection with depositions upon oral examination.  There also occurs the abusive practice of attorneys…who instruct the deponent not to answer without reasonable basis.  The ability of a party to use video depositions as a matter of course may have the salutary effect of discouraging egregious conduct during depositions.

Pa.R.C.P. 4017.1, Explanatory Comment (2007).

Therefore, based upon the Hall approach adopted in Ezrin, Dr. Henzes should be directed by his counsel not to answer a specific question only if that instruction is necessary (1) to assert and protect a recognized privilege, see Venosh v. Henzes, 40 Pa. D.&C.5th 69, 94-95 (Lacka. Co. 2014), (2) to enforce a limitation on evidence established by a previous court ruling in the same case, or (3) to file a motion for a protective order under Pa.R.C.P. 4012.

No other instruction prohibiting the deponent from answering a question will be warranted or permitted.

One of the other “guidelines for discovery depositions” that Judge Gawthrop announced in Hall was that defending counsel and the deponent may “not engage in private, off-the-record conferences during depositions or breaks or recesses, except for the purpose of deciding whether to assert a privilege,” and that if any such communications do occur, they “are a proper subject for inquiry by deposing counsel to ascertain whether there has been any witness-coaching, and if so, what.” 

Evidence of the existence of such consultation between a deponent and counsel for the deponent arguably assumes relevance if the post-recess testimony by the deponent alters or modifies the earlier deposition testimony provided by that witness.  Counsel should be guided accordingly.

EVIDENCE-PRIVILEGE-ATTORNEY WORK PRODUCT

Bousama vs. Excela Health Corp., [J-80-2018]- Opinion by Judge Mundy – Decided June 18, 2019.  In this appeal by allowance, we consider whether Excela Health waived the attorney work product doctrine or the attorney-client privilege by forwarding an e-mail from outside counsel to its public relations and crisis management consultant, Jarrard, Phillips, Cate & Hancock.  We conclude that the attorney work product doctrine is not waived by disclosure unless the alleged work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.  Accordingly, we remand this matter to the trial court for fact finding and application of the newly articulated work product waiver analysis.  Further, we affirm the Superior Court’s finding that Excela waived the attorney-client privilege.  Bousamra and Morcos are interventional cardiologists, who use intravascular catheter-based techniques to treat, among other things, coronary artery disease.  Interventional cardiologists utilize catheterization and angiography to measure blood flow through patients’ coronary arteries and evaluate the presence of blockages.    If a blockage is severe enough, interventional cardiologists implant a stent – a device which increases the blood flow through the affected artery by widening the narrowed section.   Bousamra initiated this action by filing a complaint on March 1, 2012, seeking damages for, among other things, defamation and interference with prospective and actual contractual relations.   As the matter continued through the phases of litigation, the parties disagreed as to the scope of discoverable materials.   Whereas disclosure to a third party generally waives the attorney-client privilege, the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose.  As the purpose of the doctrine must drive the waiver analysis, we hold that the work product doctrine is waived when the work product is shared with an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.  In this case, the factual record is insufficient for us to conduct a waiver analysis.  Accordingly, we remand to the trial court for factual findings and application of the newly articulated waiver analysis, as it is not an appellate court’s function to engage in fact finding.  Here, after careful consideration of the foregoing, we hold that Excela waived the attorney-client privilege.  The email in question was sent from Excela’s outside counsel to Fedele, the Senior Vice President and General Counsel of Excela.  Thus, as a communication between Excela’s attorney and an employee authorized to act on Excela’s behalf, the e-mail was originally protected communication pursuant to the attorney-client privilege.  The critical inquiry, then is whether Fedele forwarding the e-mail to Cate constituted a waiver of the privilege.   As we recognized above, the attorney-client privilege is waived when a confidential communication is shared with a third party.  We hold that Excela waived the attorney-client privilege when Fedele, a high-ranking officer permitted to act on behalf of the corporation, forwarded a privileged communication to Cate a third-party.  Accordingly, the order of the Superior Court is affirmed in part, reversed in part, and this matter is remanded to the trial court for factual findings and application of the attorney work product doctrine consistent with this opinion.

EVIDENCE-SPOLIATION-ADVERSE INFERENCE

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

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 to be insufficiently trustworthy based on aspects of the specific documents, the recording process, or the witness’s familiarity with them. Nevertheless, we emphasize that Rule 803(6) does not require certification but rather offers it as an alternative. For the reasons set forth above, we conclude that the trial court did not abuse its discretion in admitting the documents and allowing Schonleber’s testimony under the facts of this case. Accordingly, we affirm the order of the Superior Court. 

EVIDENCE-SCIENTIFIC EVIDENCE-FRYE STANDARD-RISPERDAL

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

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 such [occupational pesticide] exposure played a significant role in the development of his disease.” Executor commenced this wrongful death and survival action against the manufacturers of various pesticides that Decedent applied over the forty-year period, asserting claims in strict products liability, negligence, and breach of warranty. Summary judgment was granted in favor of the manufacturers and sellers of more than twenty-five of the allegedly defective pesticides on December 11, 2012, based on a lack of expert testimony identifying these pesticides as substantial contributing factors in Mr. Walsh’s death.

On August 5, 2013, the Bayer Defendants filed a motion to exclude Executor’s experts, epidemiologist April Zambelli-Weiner, Ph.D., and physician Nachman Brautbar, M.D., pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The other remaining defendants either joined Bayer’s Frye motion or filed their own. The substance of the Frye motions was that this case involved novel science, and the methodologies used by these experts were not generally accepted or conventionally applied in the relevant scientific communities.

At issue in the underlying litigation is whether Decedent’s forty-year occupational exposure to Defendants’ insecticides and fungicides, collectively pesticides, some of which contain known carcinogens and teratogens, was a substantial contributing factor in his death due to AML. The precise issue before us involves the propriety of the trial court’s ruling that Frye barred Executor’s experts from testifying as to causation.

Since the defense offered expert opinion that neither Dr. Brautbar nor Dr. Zambelli-Weiner applied the Bradford-Hill method in a generally accepted manner in reaching their conclusions, we find no abuse of discretion on the part of the trial court in conducting a Frye inquiry herein. Nonetheless, we find merit in Executor’s contention that the Frye inquiry herein was overly expansive. The court viewed its role as that of a gatekeeper, charged with “review[ing] the studies that Dr. Brautbar relies upon to determine whether they support Dr. Brautbar’s reliance[,]” and “to make sure that the articles stood for what Dr. Brautbar said that they did.”

The trial court did not expressly find that Dr. Brautbar’s manner of applying Bradford Hill was not generally accepted. Rather, the court focused on Dr. Brautbar’s reference to studies in applying those factors, and concluded that his reliance upon particular studies was not in accordance with generally accepted scientific methodology. In arriving at that conclusion, the court scrutinized the studies cited by Dr. Brautbar, assessed their scientific relevance and validity, and then arrived at its own conclusion whether the expert’s reliance upon them was scientifically acceptable. The court’s finding that Dr. Brautbar did not follow accepted methodologies in relying upon certain studies in forming his opinions as to general causation added another layer to the generally accepted methodology requirement. Furthermore, the trial court did not identify the methodology it was employing or reference testimony from scientists in the field. In short, the trial court baldly concluded, “Dr. Brautbar’s reliance on this literature to support his general causation theory is not in accordance with generally acceptable scientific methodology.” The trial court employed the same flawed approach in evaluating the sources reviewed and cited by Dr. Brautbar in support of his specific causation opinions. Notably, the defense experts did not dispute the general acceptance of Dr. Brautbar’s choice of the differential etiology methodology for determining specific causation. That method permits a medical expert to render specific causation opinions based on the scientific information available, the patient’s history, his education, training, and experience. We routinely require our experts, especially medical experts, to apply their scientific knowledge, information, and expertise to a unique set of circumstances.

Although the epidemiological studies cited by Executor’s experts did not explore whether exposure to one particular pesticide product caused AML, we reject Defendants’ contention that such specific studies were required in order to survive a Frye scrutiny. The EPA assesses the cumulative risk of pesticides that share common mechanisms of toxicity or act the same way in the body.

The general scientific principle underlying the opinions of Dr. Zambelli-Weiner and Dr. Brautbar is that long-term exposure to pesticides can cause or increase the risk of leukemia, and specifically AML. The literature and studies, in the aggregate, support the general acceptance of that principle. In addition, medical science in the form of cytogenetic studies linking changes in certain chromosomes with exposure to chemicals supports a causal link. Dr. Brautbar used the differential diagnosis theory, which is generally accepted in the scientific community, to arrive at his opinion that long-term pesticide exposure was the cause of Decedent’s AML. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 756 (3d Cir. 1994) (affirming for purposes of the Frye prong of the Daubert inquiry, that differential diagnosis is widely accepted technique, subjected to peer review, used by the medical community to rule in or out alternative causes).

Orders vacated and case remanded for further proceedings.

EVIDENCE-FACEBOOK

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 reasonable degree of certainty, reliability, scientific, technological certainty” standard in determining whether the Commonwealth had satisfied the requirements for authentication of the proffered Facebook records.

Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence that cannot be authenticated by a knowledgeable person, pursuant to subsection (b)(1), may be authenticated by other parts of subsection (b), including circumstantial evidence pursuant to subsection (b)(4). See Pa.R.E. 901(b)(4).

Pennsylvania appellate courts have considered the authentication of computerized instant messages and cell phone text messages. See In the Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (computerized instant messages); Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014) (cell phone text messages).

Accordingly, the Koch Court ruled, “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”  Id. at 1005.

Nevertheless, social media records and communications can be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law, similar to the manner in which text messages and instant messages can be authenticated. Initially, authentication social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity. See In re. F.P., 878 A.2d at 96. Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender. See Koch, 39 A.3d at 1005. Other courts examining the authentication of social media records have ruled that the mere fact that an electronic communication, on its face, purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.

Here, the Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages. Accordingly, the trial court did not abuse its discretion in denying the Commonwealth’s Motion in Limine to admit such items into evidence at trial.

EVIDENCE-EXPERTS-CROSS-EXAMINATION-PRESENT SENSE IMPRESSION

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 any questions.

The court raised the specter that its rule against asking witnesses concerning their “present sense” would still apply if the witness said he was not going to be an expert at trial or if his counsel so stated.  In this opinion, Judge Wettick discussed Karim v. Reedy, No. 11-CV-4598, 2016 WL 111324 (C.P. Lackawanna Cnty., January 11, 2016).  Judge Wettick said that both his opinion in McLane and Judge Nealon’s in Karim permit “robust discovery relevant to what the witness remembers.”

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

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 more stringent than those under HIPAA and related regulations.

The records now sought by Plaintiffs are clearly of a confidential, private nature, implicate physician-patient privilege, and are sought without the consent of the non-party – or his or her legal guardians.  As previously discussed, Plaintiffs are already in possession [sic] substantial deposition testimony and all pertinent medical records.  The need for cumulative, non-party medical records is not so weighty as to overcome the need for confidentiality.

IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel is DENIED.

EVIDENCE-PRIVILEGE-ATTORNEY-CLIENT-HEALTHCARE DISPUTE

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 the company CEO on the appropriate course of action?

2. Does the work product doctrine protect the mental impressions of outside counsel contained in the email?

In this case, Dr. BouSamra is not attempting to discover any item from the file of outside counsel, whose identity has been hidden from Dr. BouSamra. Dr. BouSamra, concomitantly, is not demanding that the lawyer reveal the email. Dr. BouSamra is seeking that email directly from the client Excela, the email was sent to the client Excela by outside counsel, and the email is a document that belonged to Excela. The email from outside counsel was subject to the attorney-client privilege, which was waived when Excela sent it to a third party. Excela’s position on appeal is straightforward: the work product privilege cannot be waived when work product is disseminated to a third party or witness as such disclosures are often needed to enable the attorney to prepare for litigation and since work product distributions to witnesses and third parties are not inconsistent with the purpose of the work product doctrine. Excela maintains that the work product privilege can be waived only when distributed to an adversary or under circumstances where there is a substantial increase in a potential adversary’s opportunities to obtain the information. Appellants’ brief at 32-33. See Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 812 (Pa.Super. 2011), aff’d by an equally divided court sub nom. Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014) (work-product privilege applies to communications sent by a lawyer to a witness in order to prepare that witness for trial). However, the principles invoked by Excela are not relevant herein. Outside counsel, the lawyer, did not use the email to aid him/her in preparing for litigation by disclosing its contents to a third party or witness. Outside counsel would not have waived his privilege in his own work product if he had given it to Jarrard to aid outside counsel in preparing this case for trial. That did not occur in this case. The client sent the email, and the email was not sent by Excela to Jarrard to help outside counsel in preparing a case for trial. Order affirmed. Case remanded. Jurisdiction relinquished.

EVIDENCE-DEAD MAN’S STATUTE-NEGLIGENCE CASE

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

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.

EVIDENCE-PRIVILEGE-ATTORNEY CLIENT-VIDEOTAPED STATEMENTS

Brown v. Greyhound Lines, Inc., 142 A.3d 1 (Pa. Super. 2016).  Bus accident involving passengers against Greyhound.  Apparently a mock video was done to prepare the bus driver for deposition.  It is unclear, but it does say that the statement was for use in “some other case.”  There is also a question about interviews by the claims adjuster.  Greyhound claimed attorney-client and work product privilege.  The Superior Court ruled that Greyhound failed to carry its burden of proof.  There is insufficient detail to support any lack of error by the trial court.  Like the trial court, the Superior Court decries Greyhound’s claim that any and all original investigation and statements contained in the files are privileged, including original investigated material reported to claims and other representatives of Defendant Greyhound.  This is not attorney-client.  Moreover, Greyhound failed to challenge the myriad of documents meticulously reviewed by the trial court with sufficient detail and challenge.  As to the question of the bus driver’s mock deposition, Greyhound has waived the issue.  This issue is not before the court.  So it seems as though the mock deposition will have to be turned over.  It is unclear with whom the deposition was shared.  It is clear that the court reporter and the videographer were present during the taking of the statement. The court had ruled that the statement was within the confines of Rule 4003 and should be turned over.  The mock deposition was conducted so that the bus driver’s counsel would know what the bus driver would say at her deposition.  Passengers say that the information conveyed by the bus driver was never intended to be confidential.  As noted, the lower court was sustained on this because it was not before the Superior Court.

TOXICOLOGIST-SUFFICIENCY OF THE EVIDENCE

Pedestrian was extremely drunk.  Had a .313.  The case is Coughlin v. Massaquoi, 138 A.3d 638 (Pa. Super. 2016).  Defendant hired a toxicologist to say that the pedestrian was so drunk that he could not safely cross the street.  The problem with this case is that there is no evidence that the negligence played a factual cause in the death of the pedestrian, who was hit by a negligent driver.  However, the court said that corroborating evidence of intoxication could be expert testimony describing particular BAC level in an average person.  The court held that Dr. Saferstein’s expert testimony was sufficient corroborating evidence for admission of decedent’s BAC result.

ASBESTOS-SUFFICIENCY OF THE EVIDENCE

Seaman worked at a shipyard and developed asbestos disease.  The court failed to view the evidence in a light most favorable to the seaman and applied the wrong standard for causation for a negligence claim under the Jones Act.  Summary judgment should have been denied.  Criswell v. Atlantic Richfield Company, 115 A.3d 906 (Pa. Super. 2015).

EVIDENCE-AUTHENTICITY-CHAIN OF EVIDENCE

Koller produces concrete for contractors.  It purchases concrete from Waycem.  Koller sued Waycem claiming that the mixture it purchased was not the mixture provided, resulting in problems with concrete.  The jury returned a verdict in Koller’s favor.  Waycem claimed that a credible and complete chain of custody was not established.  Tangible evidence is authenticated properly by establishment, through direct or circumstantial evidence, of a reasonable inference that the identity and condition of the item remained unimpaired until it was presented at trial.  A truly complete chain of custody is not necessary.  Not everyone who came into contact with the item needs to testify.  Physical evidence may be admitted in spite of gaps in testimony establishing a chain of custody and any gaps go to the weight of the evidence as opposed to its admissibility.  Koller Concrete, Inc., v. Tube City IMS, LLC, 115 A.3d 312 (Pa. Super. 2015)

EVIDENCE-PAROLE EVIDENCE RULE-STOCK PURCHASE AGREEMENT

Expert Witnesses Insurance

Flenke v. Huntington, 111 A.3d 1197 (Pa. Super. 2015). In an automobile accident case, negligence and factual cause were admitted. A jury awarded $30,000 after three-day trial.  Plaintiff appealed the verdict. The main focus of the appeal was that the doctor for the insurance company was biased and that the plaintiff was entitled to greater cross-examination than was permitted.  Pennsylvania juris prudence permits parties to take discovery regarding an expert witness’s potential bias and financial incentives.  Much evidence came in concerning the fact that Dr. Hely derived substantial income from litigation.  It was clear that the doctor was a defense doctor.  The court found that the jury had enough information to assess Dr. Hely’s motives and credibility, in light of the income he received and the frequency with which he testified as an expert witness. The plaintiff wanted to put in more evidence that the doctor received even more income as a defense expert than he admitted. The court found that it was not necessary to permit an audit of the doctor’s finances. The plaintiff wanted to show how much the doctor received from the insurance company in general.  The trial court did not allow this because of a concern that it would reveal the existence of insurance. The court did not find this was necessary because no shenanigans took place. The jury was well aware of the doctor’s potential bias and motive. The court found no abuse of discretion in the trial court’s decision to exclude from evidence the detailed examination of the doctor’s 50 most recent expert reports. Finally, the court said it was unnecessary to permit evidence that the first party insurance carrier provided coverage for plaintiff’s injuries.  The fact that the insurance company apparently determined that plaintiff had acute injuries was really irrelevant.

EVIDENCE-EXPERT TESTIMONY-DAUBERT-ANTITRUST

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