We have received considerable response to our initial foray into an analysis of the evidentiary value of social networking.  Plaintiffs may present one face to a defendant in bodily injury litigation and an entirely different face to friends and family on their social network page.  Let us assume that discovery turns up some favorable information.  The “totally disabled” plaintiff posts the fact that he recently went snowboarding and thoroughly enjoyed himself.  How do defendant’s counsel authenticate, for evidentiary purposes, electronically stored information printed from a social networking website?  Pennsylvania Rule of Evidence 901 requires authentication as a condition precedent to admissibility.  When a party offers evidence contending either expressly or impliedly that the evidence is connected to a person, place, thing or event, the party must provide evidence sufficient to support a finding of the contended connection.  Commonwealth v. Pollock, 414 Pa. Super. 66, 606 A.2d 500 (1992).  What do we do with printed pages from a social network account?  Pennsylvania Courts have not yet dealt with the issue of admissibility of such information at trial.  However, in April of this year, the Court of Appeals in Maryland decided the case of Griffin v. State of MD, 419 M.D. 343, 19 A.3d 415. 

In a criminal prosecution of murder, the accused’s girlfriend supposedly posted on her MySpace profile “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!!  U KNOW WHO U R!!”  The State offered the testimony of the lead investigator to attribute the posting to the girlfriend.  Defense counsel objected to the admission because the State could not sufficiently establish a “connection” between the girlfriend’s profile and posting.  The posting contained the girlfriend’s photograph of the defendant, date of birth, and described herself as the defendant’s live-in fiancée. 

Concerns arose, however, because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.  There is no law that prevents someone from establishing a fake account under another person’s name, so long as the purpose is not to deceive others or gain some advantage.  The bottom line is that with its potential for manipulation, electronically stored information requires greater scrutiny of “the fundamental requirements” to bolster reliability than letters or other paper records.

The Maryland Court ruled the evidence should not have been admitted by the trial Judge.  Someone other than the girlfriend could have created the site and posted the words “SNITCHES GET STITCHES.” A witness’s testimony that they received a message from someone with access to an individual’s MySpace web page does not identify the person who actually sent the communication. 

So, what to do?  In order to properly lay a foundation down for admissibility of social networking evidence, consider the following:

1. Simply ask the purported creator if they indeed created the information.
2. Invoke Pa.R.C.P. 4009.31 to inspect plaintiff’s computer.  Examine the computer’s internet history and hard drive to determine whether the computer was used to originate the social networking information.
3. Use subpoena power to obtain information directly from the social networking website that links the posting sought to be introduced to the person who initiated it.

Most civil cases will only justify expenditure of time and treasure required to complete the first option.  Tougher cases will require tougher measures.  Recognize this issue and be prepared!

- Frederick Fletcher

A little bit of Latin makes people think you are smarter than you really are.  Maybe that is why judges, lawyers, professors and US Currency occasionally invoke a “dead language” to support an image of wisdom, stability and trustworthiness.

Courts, defense attorneys and anyone who has ever cross-examined a doctor, will recognize either the words or principle behind the saying “post hoc ergo propter hoc” (after this, therefore, because of this).

 Plaintiffs always have and always will depend on the fact/coincidence that their pain followed the accident trauma and did not pre-exist the event.  That is why so much of damage discovery is devoted to drilling down into plaintiff’s pre-accident medical history.  Subpoenas for family doctor records, prior litigation searches and interrogatories are only some of the tools useful in leveling the playing field and distinguishing what plaintiff says now, from what plaintiff has said and objectively demonstrated in the past. 

The preexisting disc herniation, earlier MRI studies, history of prior pain treatment and pain medication go a long way to reigning in excessive claims.  Sometimes, however, the battleground is occupied by experts and that brings us to the subject of Fibromyalgia. (Latin, “fibro”- fibrous tissue, Greek, “myo”- muscle and “algos”- pain, meaning muscle and connective tissue pain.)  It is an example of a diagnosis of exclusion, a catch-all category occupied by females to males on a ratio of approximately 9:1.  The diagnosis is controversial with doctors who align themselves in strong disagreement as to possible causes.  Genes, stress, depression, abnormal sleep patterns, aberrant immune responses and trauma are all implicated as possible triggers.  Frequently, there are no abnormalities on physical examination, and objective diagnostic tests are absent.  When thrown into the litigation arena, fibromyalgia is a medical expert free-for-all very loosely arbitrated by the trial judge. 

The bar for expert testimony admissibility in Pennsylvania State Courts is low.  The bottom line is that an expert can conclude/opine just about any way they want, just so long as they follow a methodology that has general acceptance in the relevant scientific community.  In the recent Lehigh County Court of Common Pleas case of Getz plaintiff’s neurologist opined in his report that, to a reasonable degree of medical certainty, the motor vehicle accident caused the plaintiff’s fibromyalgia.  The defense physiatrist disputed this conclusion and both sides referenced competing medical literature supporting their opposing views. 

Prior to trial, the defense filed a Motion in Limine to preclude expert medical testimony linking plaintiff’s alleged fibromyalgia syndrome to the motor vehicle accident.  Senior Judge Alan M. Black held an evidentiary hearing including consideration of live testimony from the defense doctor and the trial deposition of plaintiff’s doctor before ruling that the motion was denied and plaintiff’s doctor could testify to the causal link.

The standard for admissibility of scientific evidence in Pennsylvania is controlled by the case Frye v. United States, 293 F. 1013, 1014 (D.C. Cir., 1923) and adopted in Pennsylvania by the Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277, 1281 (1977). 

In Getz, Judge Black correctly observed that the medical community has not yet reached a consensus on the specific cause of fibromyalgia.  The Frye case requires the trial court to focus on the methodology utilized by the expert no matter what the conclusion.  The judge went on to explain that plaintiff’s doctor conducted physical and neurological examinations of the plaintiff and considered the history provided to him by the plaintiff as well as information from the prior medical records.  He took into account the history of the accident prior to the onset of the fibromyalgia symptoms.  Plaintiff’s medical expert did not find any other plausible explanation for the fibromyalgia.  Viola!  The doctor concluded plaintiff’s current pain was caused by the accident.

This methodology, sometimes referred to as a differential diagnosis, is quite standard in the medical profession.  Because the methodology applied in reaching the conclusions was legitimate, then the doctor’s conclusions become admissible.

This smacks of little more than the old parenting ploy of saying “It is true because I say it is true.” Yes, reasons do matter, but even a flimsy, self-serving medical analysis is enough to place an opinion regarding causation before a jury.  By the way, sloppy scientific methodology is not the sole province of plaintiff’s experts. 

The best advice is to hire skilled, qualified experts and make sure they stick to accepted scientific procedures and process.  At the present time, there is no appellate Court decision in the Commonwealth directly addressing the admissibility of expert testimony causally relating fibromyalgia to trauma.  For the defense, we should continue to fight the good fight.  Remember, if doctors can disagree, so can judges.  Onward!

- Fred Fletcher

 The Fair Share Bill, the reform of joint and several liability in Pennsylvania, is close to enactment.  The Pennsylvania House passed HB1, eliminating the 1 percent rule in Pennsylvania and making a defendant only jointly liable if the defendant is 60 percent or more responsible for the injury.  The matter then went to the Pennsylvania Senate.  The Senate passed SB1131, approving the same reforms.  SB1131 has now been returned to the House for a floor vote on second consideration.  Amendments will be offered to the bill.  It is anticipated and hoped that the amendments will be defeated.  A vote on the final passage of SB1131 is likely to take place on Sunday evening or Monday.  It would then be sent to the governor to sign.  Joint and several reform in Pennsylvania is on the horizon.

In Pennsylvania, the adjudication of uninsured and underinsured motorist claims has undergone substantial change.  Previously, all uninsured and underinsured motorist disputes were litigated in mandatory arbitration proceedings before three lawyers chosen by counsel.  In 2005, in Insurance Federation of Pennsylvania v. Koken, the Supreme Court determined that the Insurance Department has no authority to require mandatory arbitration of UM and UIM claims.  In response to the Koken decision, most, if not all insurers modified their policies to eliminate mandatory arbitration.  UM and UIM cases are now litigated in courts of competent jurisdiction.

The change in the adjudication of UM and UIM claims has given rise to a host of novel issues.  These issues are being addressed on a case by case basis in separate lawsuits filed in numerous counties throughout the Commonwealth of Pennsylvania.  Among the issues are the following:

• Venue;
• Joinder;
• Insurance;
• Evidence;
• Bad Faith;
• Jury Charge;
• Coverage

Accordingly, the need for uniform rules and the adjudication of UM and UIM claims has arisen.  Recently, James C. Haggerty has co-authored an article printed in the Litigation: Auto Law Supplement of the Legal Intelligencer.   This article discusses the current state of litigation of UM and UIM claims and proposes the enactment of uniform rules to handle such matters.  For a copy of the article, please visit Swartz Campbell’s website.

Pennsylvania currently employs joint and several concepts with respect to contribution among joint tortfeasors.  As a result, a defendant found to be one percent negligent can be responsible for payment of the entire verdict in a tort claim.  This inequitable rule has come under fire.

Reform efforts have been moving forward in the Pennsylvania Legislature.  The House of Representatives passed a law which requires a tortfeasor to be responsible for the entire verdict only if the causal negligence of that joint tortfeasor is more than 60 percent of the award.  Otherwise, the tortfeasor is only severally liable.

The Pennsylvania Senate has recently undertaken review of joint and several reform.  An effort was made to water down the house bill by including exceptions to joint and several for: (1) economic damages; and (2) where a minor had a beneficial interest in the outcome of the case.  These exceptions would, in many cases, swallow the general rule of joint and several reform.  A recent amendment in the Senate removed these proposed modifications to the reform effort.  Therefore, a bill substantially similar to the House Bill is now before the Senate.  If passed, it is hoped that meaningful joint and several reform can be enacted in Pennsylvania.

The Pennsylvania Defense Institute has assisted in the tort reform effort.  Suzanne Tighe and Jim Haggerty have drafted the Position Paper and Supplemental Position Paper on behalf of the Pennsylvania Defense Institute with respect to joint and several tort reform.  Click visit Swartz Campbell’s website for copies of the Position Papers.

A case which has caught the attention of the plaintiff’s bar is Silver v. Thompson, 2001 PA Super 114 ( 5/27/2011), in which Amicus briefs were filed on behalf of the plaintiff by the PA Association  of Justice and the Philadelphia Trial Lawyers Association. In Silver, plaintiff driver and passenger, both residents of Bucks County, were involved in an accident in Bucks County with another resident of Bucks County. The lawsuit was filed in Philadelphia County, and the defendant was personally served at her workplace in Philadelphia. The trial court transferred the case to Bucks County, holding that service in Philadelphia was proper only if defendant was served at a place of business where she had proprietary rights.

The Superior Court reversed and held that venue was proper in Philadelphia, as under PA RCP 1006, venue is proper in a county in which the individual may be served and PA RCP 402(a) provides that service on an individual may be made by handing a copy of the Complaint to the defendant.

It is quite common to commute from the suburbs to a workplace in Philadelphia, which is considered a more liberal venue for personal injury cases. So in light of Silver,  it can be anticipated that in automobile accident cases occuring outside of Philadelphia, plaintiffs’ counsel will file their actions against residents of neighboring counties in Philadelphia and serve the defendant at a Philadelphia workplace. Although it has been suggested that a change of venue on  forum non conveniens grounds is still available to defendants, one has to wonder how receptive the courts will be to such a motion where the defendant regularly commutes to work in Philadelphia, especially with case law holding that plaintiff’s choice of forum is to be given great weight.

- John F. Lewis

The internet and social media websites have invited the real time disclosures of even the most intimate details of a user’s life. Frequently, success in defending a claim rests on attacking the plaintiff’s credibility. Plaintiffs just cannot resist the temptation to exaggerate and “over-reach” on damage claims when they talk to their doctors, IME doctors and give sworn depositions. Why not? No one will ever know even know the difference.

In the past we have used surveillance to keep the rascals honest.  But surveillance is cumbersome, expensive and subject to challenge; the old “plaintiff was having a good day when plaintiff was changing that tire on his car” testimony.  Enter MySpace, Facebook, Twitter, etc. The plaintiffs survey themselves and openly post pictures and prose that is at odds with the sorry face they present to defense counsel.

 In the recent Northumberland County Court of Common Pleas case of Zimmerman vs. Weis Markets, the plaintiff injured his leg at work and was making a claim for scarring and the accompanying embarrassment. His public website photography showed him wearing shorts and smiling. The defense motion to compel discovery was granted by Judge Charles H. Saylor. Defendants obtained discovery of the plaintiff’s passwords, username and login name.  No privilege exists to protect information and images posted in the non-public portions of social websites.

Social media discovery is a new and valuable tool to keep plaintiffs honest. Case law continues to develop in Pennsylvania in this interesting area.  Continue to check back to Swartz Campbell’s Auto Blog and website  for future updates.

- Frederick Fletcher

In post-Koken auto cases, questions exist regarding joinder of tort and UIM claims, as well as the appropriate venue for the litigation of such matters.  In Orsulak v. Penn National Mutual Casualty Insurance Company, No. 12255-2010 (Luzerne 2011), Judge Joseph Van Jura addressed these issues in connection with the presentation of a Motion for Coordination/Petition to Transfer Venue.  The decision of Judge Van Jura points out many of the issues which arise in these post-Koken auto cases. 

In Orsulak, the plaintiffs were involved in a motor vehicle accident occurring in Monroe County.  The plaintiffs filed suit seeking recovery of damages in tort by Writ of Summons in Monroe County.  The insurer for the tortfeasor tendered its $25,000.00 liability limit of coverage.  Penn National Mutual Casualty Insurance Company, the UIM insurer for the plaintiffs, exercised its rights under Daly-Sand and tendered its check to the plaintiff in order to preserve subrogation rights.  Prior to instituting the Monroe County action, the plaintiffs had filed suit in the Court of Common Pleas of Luzerne County against Penn Mutual Casualty Insurance Company seeking recovery of contractual underinsured motorist benefits and extra-contractual bad faith damages.  Penn National Mutual Casualty Company then filed a Motion to Coordinate and Transfer in the Court of Common Pleas of Luzerne County with respect to the contractual and extra-contractual claims. 

 The Motion to Coordinate and Transfer was filed pursuant to Pa.R.C.P. 213.1.  That rule permits the coordination of actions in different Counties which arise from the same transaction or occurrence.  Rule 213.1(c)  sets forth the specific factors to be considered in determining coordination and location for the coordinated proceedings, as follows:

• Whether the common question of law or fact predominate;
• The convenience of the parties, witnesses and counsel;
• Whether coordination will result in unreasonable delay, expense or prejudice of a party;
• The efficient utilization of judicial facilities and personnel;
• The disadvantage of duplicative and inconsistent rulings, orders or judgments;
• The likelihood of settlement of the actions without further litigation should coordination be denied.

Pa.R.C.P. 213.1(c).  In analyzing these factors, Judge Van Jura decided that coordination was, in fact, appropriate. As such, the action instituted by the plaintiffs against Penn National Mutual Casualty Insurance Company in Luzerne County was transferred to the Court of Common Pleas of Monroe County for coordination with the tort action.  The decision of Judge Van Jura demonstrates the application of coordination proceedings in tort and UIM claims in the post-Koken setting.  A copy of the decision of Judge Van Jura can be obtained at Swartz Campbell’s website.

In Post-Koken cases, questions arise regarding: (1) the consolidation of tort and UIM claims; and (2) the venue for UIM actions. In Bingham v. Poswistilo, et al., No. 10 CV 6026 (Lackawanna 2011), Judge Nealon of the Court of Common Pleas of Lackawanna County confronted these issues. In that case, the plaintiff was involved in a motor vehicle accident in Lehigh County when struck by vehicles operated by the defendants, Frank Poswistilo and Matthew Ritz. Poswistilo and Ritz resided in Northampton and Lehigh Counties, respectively. At the time of the accident, the plaintiff, Bingham, who resided in Lackawanna County, was insured under policies of insurance issued by the Erie Insurance Exchange. The plaintiffs instituted suit against the tortfeasors and the UIM carrier in the Court of Common Pleas of Lackawanna County setting forth the following claims:

• Count I: Tort claim against Poswistilo
• Count II: Tort claim against Ritz
• Count III: Loss of consortium claim against Poswistilo
• Count IV: Loss of consortium claim against Ritz
• Count V: Underinsured motorist claim against Erie

Preliminary Objections were filed challenging: (1) joinder; and (2) venue.

In addressing the issues, Judge Nealon provides a comprehensive overview of the issues. Judge Nealon noted that there is a divergence of opinion in the Courts of Common Pleas which have discussed the joinder issues. Judge Nealon concludes that joinder of the tort and UIM claims is nonetheless appropriate.

With respect to venue, however, Judge Nealon notes that venue is not proper against tort defendants in the Court of Common Pleas of Lackawanna County. At the same time, he notes that the forum selection clause in the Erie policies mandates litigation of the UIM claims in Lackawanna County. See O’Hara v. First Liberty Insurance Corp., 984 A.2d 938 (Pa. Super. 2009). Accordingly, various opposing public policy and procedural considerations were at work in this matter.

In resolving the dispute, Judge Nealon determined that the Preliminary Objections based upon misjoinder of causes of action were inappropriate and were overruled. However, the Preliminary Objections asserting improper venue were sustained. Thus, the tort and UIM claims were severed. The tort claims were thereafter transferred to the Court of Common Pleas of Lehigh County for adjudication. The decision of Judge Nealon points out the issues involved regarding severance, joinder and venue in Post-Koken cases.

A copy of the decision can be obtained at Swartz Campbell’s website.