The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court sending the voter ID case back to the Commonwealth Court. As reporter Saranac Hale Spencer writes, challengers to the law won a round yesterday when the justices filed a per curiam order vacating the Commonwealth Court’s decision not to issue a preliminary injunction last month. The state must now prove that nobody will be disenfranchised by the law.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that complaints about priest sexual abuse claim that Stradley Ronon Stevens & Young assisted the Archdiocese of Philadelphia in efforts to conceal sexual misconduct by its clergy. The firm is not a named defendant in the eight civil lawsuits that were filed.

Below the fold on Page 1, reporter Zack Needles writes that a Connecticut insurer has sued Chartwell Law Offices, seeking a declaratory judgment that it does not have a duty to indemnify the firm against malpractice claims tied to the Bridgeport fire.

In more Regional News on Page 3, a New Jersey firm has been sued over the failed use of an involuntary Chapter 7 petition.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Steven D. Usdin and Nella M. Bloom write about a general counsel’s role in a financially distressed company.

In an E-Discovery column on Page 7, Alice E. Burns writes about using predictive coding as another tool in the arsenal.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Settlement Talks Begin in Duck-Boat Accident Trial

By Saranac Hale Spencer
Of the Legal Staff

Testimony stopped in order to hold a settlement discussion on the second day of the civil trial related to the double fatality on a duck-boat tour two years ago.

The company that owned the duck boat and the company that owned the tug boat pushing the barge that crushed it in the Delaware River both argue that the Limitation of Liability Act, passed by Congress in 1851, caps their total liability at $1.7 million.

According to that act, the owners of vessels are not liable for any loss over the value of the ship. Ride the Ducks International, the Missouri-based company that owned the duck boat, claims that its boat is worth $150,000, according to court papers. K-Sea Transportation, which owned the tug boat pushing the barge, valued its boat at $1.65 million, according to court papers.

After hearing testimony on Monday and the first half of Tuesday, U.S. District Judge Thomas O’Neill Jr. of the Eastern District of Pennsylvania suggested that the parties discuss a settlement because it is a bench trial with no jury to inconvenience with the wait, according to Robert Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia.

Mongeluzzi is representing the families of the Hungarian students who were killed in the 2010 accident. John Snyder of Rawle & Henderson in Philadelphia is representing Ride the Ducks and Thomas Canevari of Freehill Hogan & Mahar in New York is representing K-Sea Transportation.

U.S. District Judge John Padova is presiding over the settlement discussion.

 

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a look at Philadelphia jury verdicts in 2011, which dropped 31 percent on average. As reporter Amaris Elliott-Engel writes, the average civil jury verdict in Philadelphia Common Pleas Court fell from $1.49 million in 2010 to $1.02 million last year, according to First Judicial District statistics.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that antitrust and monopoly claims have been narrowed in a suit filed nearly 10 years ago against Comcast, allowing the allegations to proceed, according to a federal judge’s ruling last week.

Also below the fold on Page 1, Amaris Elliott-Engel writes that Dow Chemical Co. was denied in its effort to block a plaintiff’s subpoena in a brain cancer case. The state Supreme Court ruled to allow the subpoena, which would allow plaintiffs counsel to explore whether Dow and its predecessor, Union Carbide, failed to report the existence of employees with brain cancer who worked in their plants producing the toxic chemical vinyl chloride.

In more Regional News on Page 3, Saranac Hale Spencer writes that a federal statute trumps state jurisdiction in a bank fees case, according to a federal judge’s ruling last week.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a White-Collar Law column on Page 5, Peter D. Hardy and Abraham Rein write that changes may be coming to corporations’ federal sentencing.

In a Litigation column on Page 7, Abraham J. Gafni writes about pretrial discovery from non-parties in arbitration under state law.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story comes from PLW, as reporters Ben Present and Zack Needles write about questions looming over the Lackawanna County Family Court guardian ad litem program. A review of family court records by the reporters reveals that the court contracted one person to act as guardian ad litem an average of 88 cases per year between 2009 and 2011. This came after there were no such appointments in 2007 or 2008. There will be more on this story in subsequent issues of The Legal and PLW, so stay tuned.

Below the fold on Page 1, Ben Present writes that a trial court may not refuse to award contractual interest to a prevailing party if the agreement provides for a specific amount. The state Supreme Court reversed a split panel of the Superior Court in TruServ Corp. v. Morgan’s Tool and Supply Co.

On Page 3, reporter Amaris Elliott-Engel writes in an allocatur story that the state Supreme Court is going to consider if health care providers or their records-producing proxies must disclose their actual and reasonable costs of producing charts and records.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses a county president judge interfering with a district judge’s constitutional rights; Brandon Swartz’s Personal Injury column on diagnostic testing and bone scans; a $2.6 million medical malpractice verdict heading back to trial court after a second appeal; and Shelly Pagac and Jennifer Russell’s commentary on Employment Law and English-only rules in the workplace.

The lead story in today’s Legal is a look at profit margins and how they relate to a firm’s fiscal health. As reporter Gina Passarella writes, the profitability of firms has become an increasingly important issue. Of the 10 Pennsylvania-based firms that have reported financials so far this year, profit margins range from 22 percent to 44 percent.

Also above the fold on Page 1, Zack Needles writes that a federal judge has preliminarily approved the $17.75 million settlement of the “kids-for-cash” lawsuit. Robert K. Mericle, the builder of two juvenile detention centers who allegedly paid millions in “finder’s fees” to former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella Jr., agreed to the settlement in December in a civil suit brought by a class of juvenile plaintiffs.

Below the fold on Page 1, Amaris Elliott-Engel writes that a Lehigh County judge has upheld a $23.1 million award in a medical malpractice case in which a woman had both of her legs and a finger amputated because of an infection that went septic and gangrenous.

In more Regional News on Page 3, Hank Grezlak has a From the Chief column in which he asks when men are going to put an end to the boys’ club and stop the misogyny that has become all too common.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

On Page 5 today is Peter F. Vaira’s look at the Eastern District, as he writes about the use and misuse of depositions in a conversation with Dennis R. Suplee, an expert in depositions from Schnader Harrison Segal & Lewis.

In a Business of Law column on Page 7, Frank Michael D’Amore writes the second in a series about the top areas where law firms differ, including their willingness to embrace change.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Pennsylvania Supreme Court Parts Ways With U.S. Supreme Court on Collateral Order Appeals

By Bruce Merenstein
Special to The Legal

About five years ago, my colleague Carl Solano and I wrote an article for the Pennsylvania Bar Association Quarterly regarding Pennsylvania’s collateral order doctrine. Among other things, we noted that the Pennsylvania Supreme Court has consistently relied on federal precedents involving the doctrine when construing Pennsylvania’s own version of the doctrine, now codified in Pennsylvania Rule of Appellate Procedure 313. Although this has traditionally been the case, in a significant recent decision involving privilege issues and the collateral order doctrine, the court has expressly rejected the reasoning and holding of a United States Supreme Court decision on the same topic.

Two years ago, in Mohawk Industries, Inc. v. Carpenter, the U.S. Supreme Court held that trial court orders compelling the production of allegedly privileged materials were not immediately appealable under the collateral order doctrine. The court reasoned that “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” The court also minimized the potential effect of its decision by noting the alternative avenues of appeal that litigants could pursue: an interlocutory appeal by permission; a petition for mandamus; or defiance of the disclosure order and eventual appeal of the sanctions order that would follow that defiance.

In its Nov. 23 decision in Commonwealth v. Harris, the Pennsylvania Supreme Court took an entirely different view of interlocutory appeals of privilege orders. The court noted that some of the alternative paths to review discussed by the U.S. Supreme Court either were not available in Pennsylvania or were more difficult to pursue. But the court’s conclusion that orders requiring disclosure of privileged materials are appealable under the collateral order doctrine was largely based on its fundamental disagreement with the Mohawk court’s view that “deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.” To the contrary, the state court noted: “Privileges exist as a rule to promote frank discussions, and we respectfully disagree with the United States Supreme Court that disallowing immediate appeals will not chill such discussions.”

The state court also noted that forcing litigants to disclose allegedly privileged materials and then wait until the end of a case to press an appeal of that disclosure ruling would “deprive the privilege-holder of any meaningful remedy.” If the privilege claim turned out to be meritorious, “a later appeal will not be able to undo the harm” from disclosure. In short, the state court adopted a position pressed by numerous practitioners who have criticized the Mohawk court’s seemingly naïve view of the real world of privileged communications and their disclosure: “Once putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.”

I stand by what Carl and I said five years ago in our collateral order doctrine article: “The [Pennsylvania] Supreme Court should reiterate, in case there is any doubt, that absent compelling reasons, the Pennsylvania appellate courts should look to the well-developed federal jurisprudence under the collateral order doctrine in interpreting and applying Rule 313.” In its recent decision reaffirming its prior rulings that orders requiring disclosure of allegedly privileged material are immediately appealable under the collateral order doctrine, the Pennsylvania Supreme Court thoroughly catalogued the “compelling reasons” to depart from the U.S. Supreme Court’s recent decision on the same issue.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

 

Superior Court Adopts Broad Protections for Attorney-Expert Communications

By Bruce Merenstein
Special to The Legal

Testifying experts and the lawyers who hire them have an extra reason to give thanks this holiday season. The Pennsylvania Superior Court, in an en banc decision issued on the eve of Thanksgiving, held that communications between lawyers and testifying experts are protected by the work-product doctrine and are not discoverable.

With certain exceptions, communications between counsel and testifying experts are protected from disclosure in federal court under an amendment to Rule 26 of the Federal Rules of Civil Procedure that became effective about a year ago. Around the same time, the Pennsylvania Civil Procedural Rules Committee recommended adoption of an amendment to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure that would have protected from disclosure all communications between counsel and a testifying expert. While the Pennsylvania Supreme Court has not yet adopted the proposed amendment, the Superior Court held, in its 8-1 decision in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, that communications between counsel and a testifying expert are protected from disclosure by the work-product doctrine.

In Barrick, one of the defendants in a personal injury action served two subpoenas on the office of the injured plaintiff's treating physician, seeking all documents pertaining to the plaintiff, including communications between plaintiff's counsel and the treating physician. The office produced all medical records, but declined to produce the communications. Although defendant was unaware of it at the time, plaintiff had retained his treating physician as a testifying expert shortly before service of the second subpoena. The defendant moved for enforcement of the subpoena and, over plaintiff's objection, the trial court issued an order compelling production of the withheld communications. The plaintiff then filed an interlocutory appeal to the Superior Court.

A panel of the Superior Court initially affirmed the trial court order, in an opinion by Judge Judith Olson, joined by Judges John Musmanno and Anne Lazarus. The Superior Court then granted the plaintiff's application for re-argument en banc and, after a nine-judge en banc panel (that did not include any of the judges from the original panel) reheard the case, reversed the trial court order.

In a portion of the en banc opinion in which all nine judges joined, the court reiterated that Rule 4003.5, the rule governing discovery from experts, requires a party to seek expert discovery from the opposing party and not directly from a testifying expert. In Barrick, the subpoenas were served on the testifying expert because, at the time, the defendant was unaware that the treating physician had been retained as a testifying expert. But, the court emphasized, once the treating physician became a testifying expert, all discovery had to be directed to the party and not the expert.

The court also noted that Rule 4003.5 limits expert discovery to the facts and opinions to which the expert expects to testify and the grounds for his or her opinion. Any additional discovery is permitted only "upon cause shown," and pursuant to a court order, in accordance with Rule 4003.5(a)(2). Thus, the court held, the rule governing expert discovery does not permit disclosure of communications between counsel and a testifying expert unless the party seeking the disclosure demonstrates "cause" for such disclosure and obtains a court order compelling the disclosure of the communications.

The court did note that communications between counsel and a testifying expert could be encompassed in the required disclosure under Rule 4003.5 "if, for example, the expert specifically cited such correspondence as one basis for his or her expert opinion." Thus, where an expert discloses in his or her report or interrogatory responses under Rule 4003.5(a)(1) that his or her opinion is based in part on information communicated to the expert by counsel, such communications may be discoverable. That was not the case in Barrick, however, so this exception did not apply.

Plainly, the court could have reversed the trial court's order compelling disclosure of the communications between counsel and the testifying expert in Barrick solely on the basis of its holdings regarding Rule 4003.5. Yet, it went on to decide (in a portion of its opinion to which Judge Mary Jane Bowes dissented) that Rule 4003.3, the rule governing discovery of attorney work product, also precluded discovery of all communications between counsel and a testifying expert.

Rule 4003.3 broadly permits discovery of materials "prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative," including the party's attorney, but precludes discovery of an attorney's mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. The court in Barrick held that this work-product protection precluded discovery of all communications between counsel and a testifying expert. Although the court indicated that communications that are directly relevant to an action (such as communications relevant to a reliance-on-counsel defense) may be discoverable, its holding precludes from discovery virtually all communications between counsel and a testifying expert.

The Barrick court did not address whether disclosure of attorney work-product to a third party (the testifying expert) constitutes waiver of the work-product protection, but Judge Bowes, in a footnote in her dissent, noted that she was unaware of any Pennsylvania authority supporting such a rule. In any event, given the broad holding in Barrick, it appears clear now that such disclosure does not waive work-product protection and that, in most situations, communications between counsel and a testifying expert are protected from disclosure, even without adoption of the proposed amendment to Rule 4003.5.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

 

Fresh Ink: Inside Today's Legal (and PLW!)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

As is the case every Tuesday, today's paper is especially full, because it includes our Pennsylvania Law Weekly section,  which includes analysis pieces, our Verdicts & Settlements section, and contributed columns by Samuel Stretton (Ethics), Matthew T. Mangino (Criminal Practice), David Mandelbaum (Environmental Law) and Cliff Rieders (Civil Practice).

But let's begin with The Legal.

Topping today's front page, reporter Zack Needles writes that the height of the recession, many midsized firms said they were poised for an influx of work that typically goes to larger firms in better economic times. But did that flood ever come? And, if so, will it stay?

Sharing the top of the page, reporter Amaris Elliott-Engel has a decision from the Philadelphia Court of Common Pleas: Judge Allan L. Tereshko, who threw out the case of Illinois residents who allege that brain cancers and tumors were caused by exposure to a toxic chemical, has refused to recuse himself from the case and rejected the plaintiffs' motion for reconsideration.

Below the fold, senior staff reporter Gina Passarella has the third in her weekly series on e-discovery. Preservation is far and away the most-cited trouble spot of e-discovery. (Click here to access all the articles in the series in our special Online Only package!) It's an area that can land both the client and the lawyer in hot water and one, lawyers say, is fraught with broad, vague standards. So should clients simply preserve everything at the first sign litigation may be forthcoming? David  J. Walton, the co-head of Cozen O'Connor's e-discovery task force, said, "Lawyers have to have the guts to make the tough judgment because if you say preserve everything to a client of any size, it will overwhelm you."

Inside, in our Page 3 Regional News section, Gina has a business of law story from the West Coast: Fox Rothschild's latest acquisition has all the buzz words of the current lateral market — Los Angeles, intellectual property, China. And for the firm, the acquisition of three-attorney IP boutique Chan Law Group met all of the points on its merger checklist. 

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns today include an article on damages by Jeff Willoughby and Jim Stavros  of Forensic Resolutions, who write that lost profits can be a minefield for practitioners; and a commentary by Alva C. Mather of Hangley Aronchick Segal & Pudlin, who thinks a new bill entangles Pennsylvania in liquor makers' relationships with wholesalers.

Today's Pennsylvania Law Weekly section begins with a follow-up piece by reporter Ben Present, who writes that, in light of the announcement that cameras will be filming state Supreme Court proceedings, appellate lawyers are welcoming the development with open arms.

Also on the PLW front page, Editorial Intern Jen Zimmerman writes that nearly two years after Pennsylvania established its first veterans court in Lackawanna County, the initiative has burgeoned into a "more than satisfying" specialty court program aiming to help veterans who are struggling with readjustment to civilian society.

The PLW has much more, so head to the main website of that section to check out even more.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI  or e-mail [email protected].

New York's Chief Judge Advocates for Civil Legal Aid

By Amaris Elliott-Engel
Of the Legal Staff

Civil legal aid for the poor is in crisis, Jonathan Lippman, chief judge of the state of New York, told the attendees of the Philadelphia Bar Association quarterly luncheon today.

Eight of 10 people looking to be represented by the civil legal services are turned away for the lack of attorneys in New York and Pennsylvania, Lippman said.

Lippman said that civil legal services should no longer be mostly funded by interest earned on attorney trust accounts or court fees. He said those revenue streams are sensitive to the economy. While it may be "going directly into the eye of a hurricane" to argue for funding civil legal services through state general funds in a time of state budget deficits, he said that "access to justice is one of the fundamental obligations we owe our citizenry."

"I have become convinced that the totality of what we are doing in New York and as far as I can see around the county is simply not enough," Lippman said. "It's simply not enough to rely on the wonderful good works of the bar and a patchwork of unreliable revenue streams that fluctuate up and down."

Attorneys should be provided as a matter of course in cases involving the "essentials of life," Lippman said, such as family court cases or domestic violence cases.

With Pennsylvania Chief Justice Ronald D. Castille looking on while Lippman gave his speech, Lippman said that Pennsylvania and New York are facing similar problems of reduced budgets for the state courts and reduced funding for civil legal aid.

New York's courts were cut $70 million above what Lippman said he had voluntered to cut, "the result being 430 layoffs of court personnel in the last two months. I know the situation here is equally difficult with Pennsylvania facing a $4 billion deficit."

Amaris Elliott-Engel is a reporter for The Legal. She can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter: @AmarisTLI.

Pa. Supreme Court Says It Shouldn't Have Taken Two Appeals

By Amaris Elliott-Engel
Of the Legal Staff

The state Supreme Court has issued orders this week saying it improvidently granted appeals in two cases argued before the court in its most recent oral argument session in Philadelphia.

The cases are: Estate of Terry L. Kendall and Salera v. State Farm Fire and Casualty Co.

In the Kendall case, the court was asked to consider whether Orphans' Court judges have the equitable power, not possessed by other common pleas judges, to reverse errors made in final declaratory judgments more than 30 days after they are entered. The court's order keeps in place a state Superior Court ruling that a Montgomery County Common Pleas Court judge sitting in the Orphans' Court division could issue a second declaratory judgment, the terms of which were in conflict with a previous declaratory judgment rendered by the court.

Pennsylvania Chief Justice Ronald D. Castille had framed the issue in oral argument as a conflict between Section 5505 of the Judicial Code, which states, "a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding prior termination of any term of court, if no appeal from such order has been taken or allowed," and Section 3521 of the Probate, Estates and Fiduciaries Code, which allows an Orphans' Court, within five years, to review the "final confirmation of any account of a personal representative" and give "such relief as equity and justice shall require." It appears the court is weighing in favor of Section 3521 applying to Orphans' Court judges.

In the Salera case, the court was considering the claims of homeowners, allegedly denied general contractor overhead and profit by their insurers in property damage claims, who said they should proceed by class action. The Philadelphia Common Pleas Court judge, denying class certification, concluded that individual issues, not common issues, were predominant in the litigation. The Superior Court had affirmed the trial judge.

Contact reporter Amaris Elliott-Engel at [email protected].

Nigro's Tax Dispute Sent to Federal Court

By Shannon P. Duffy
Of the Legal Staff

Russell M. Nigro, the former state Supreme Court justice, is now a tax protester and is serving as the lead plaintiff in a proposed class-action suit that challenges the assessment imposed on his $1.3 million condominium by the Center City District.

But lawyers for CCD - the municipal authority charged with keeping Center City's streets and sidewalks clean - have now removed the case from the Philadelphia Court of Common Pleas, where Nigro was once a judge, to U.S. District Court on the grounds that some of Nigro's claims are premised on federal constitutional rights.

The case, Nigro v. City of Philadelphia, 10-cv-987, has been assigned to Senior U.S. District Judge Norma L. Shapiro.

The petition for removal was filed by attorneys Brian P. Flaherty, Dexter R. Hamilton and Jillian R. Thornton of Cozen O'Connor, who represent CCD. The city of Philadelphia, which was also named as a defendant in the suit, consented to the removal.

In the suit, Nigro complains that condo owners who purchased their property after Sept. 13, 2005, must pay the assessment while those who purchased prior to that date can sign an annual affidavit voluntarily waiving the payment.

Nigro's lawyer, George Bochetto of Bochetto & Lentz, contends in the suit that such a system is fundamentally unfair.

"The disparities between who pays and who does not give rise to violations of the Pennsylvania Constitution, the United States Constitution and the Pennsylvania statutes under which the CCD was created and from which it derives its power and authority," the complaint alleges.

Now that the case is pending in federal court, the city and CCD must either filed formal answers to the suit or motions to dismiss the claims.