On occasion, a plaintiff comes along who has separate claims for personal injuries arising out of different accidents that occurred close in time.
The dilemma for such a plaintiff becomes whether or not to attempt to pursue both claims under one complaint, or if the cases were filed under two separate complaints, whether to move to consolidate those matters into one trial.
Recent cases handed down confirm that while a plaintiff is not permitted to plead claims for two entirely separate accidents under a single complaint, once two separate complaints are filed by the plaintiff, the plaintiff may be able to consolidate those two actions for purposes of a single trial.
Joinder of Claims Not Permitted in Complaint
Under Pennsylvania Rule of Civil Procedure 2229(b), it is provided that a “plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action.”
According to the case of Richner v. McCance, 13 A.2d 950 (Pa.Super. 2011), each element of this test must be met in order for separate claims to be stated under the caption of one complaint, i.e., joinder is permitted only if both (1) the lawsuits arose out of the same series of transactions or occurrences and (2) a common question of law or fact exists.
For example, in the Pennsylvania Superior Court case of Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007), a plaintiff attempted to plead in one complaint claims arising out of separate motor vehicle accidents that occurred in different counties seven months apart. Turning to Pa.R.C.P. 2229(b), the Kalker court ruled that this joinder of claims was not permissible because the two accidents did not arise out of the same occurrence.
Such a joinder under a single complaint will not be allowed even where the plaintiff alleges an injury to the same body part from both accidents. In the Philadelphia case of Alpher v. Yellow Cab, 12 Pa.D.&C.3d 355 (C.P. Phila. 1979), a plaintiff attempted to plead claims in one complaint from two separate motor vehicle accidents that occurred 14 months apart on the basis that both accidents resulted in injuries to the same body part. The court in Alpher found that the two causes of action should not be joined because there was no common question of law or fact and because the claims did not arise out of the same transaction or series or occurrence.
As such, the law of Pennsylvania requires a plaintiff to bring claims arising out of separate motor vehicle accidents under separate complaints. The question remains whether that plaintiff who has filed separate lawsuits may thereafter successfully move to consolidate those separate complaints into one trial.
Consolidation of Separate Claims for Trial
Judge R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas recently addressed this very issue and allowed the consolidation of two separately filed motor vehicle accident lawsuits brought by the same plaintiff in the case of Jackson v. Drew, PICS CASE No. 13-1015, No. GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).
In Jackson, the plaintiff was involved in two separate car accidents in Allegheny County with similar injuries resulting. The plaintiff filed separate complaints against the drivers.
Thereafter, the plaintiff filed a motion under Pa.R.C.P. 213 to consolidate the cases. The plaintiff asserted a concern that each defendant would try to blame the other for any of the injuries asserted.
Under Pa.R.C.P. 213(a), it is provided that “when actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay.”
In Jackson, Wettick granted the motion pursuant to Pa.R.C.P. 213(a) and consolidated the cases under the rationale that both accidents arose out of a common question of law, i.e., the common question of fact as to what injuries were caused by which accident.
In his decision, Wettick distinguished the separate standards applicable to the permissive joinder of separate claims in a complaint under Pa.R.C.P. 2229 and to a motion for consolidation under Pa.R.C.P. 213(a). Whereas, the joinder Rule 2229(b) required both elements of the test — that is, actions arising out of the same occurrence and a common question of law or fact — the consolidation Rule 213(a) only mandated that one or the other elements of the test exist.
In the context of the Jackson case, although the separate actions arose out of separate occurrences, where the cases involved the common questions of fact as to which injury caused which accident, Wettick allowed for the consolidation.
Another example of a trial court opinion in which separate complaints were allowed to be consolidated for purposes of trial is Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991). In Scoggins, the plaintiff allegedly sustained similar injuries as a result of two separate motor vehicle accidents that occurred several months apart.
The Scoggins court felt that the chances of the plaintiff receiving a fair trial would be enhanced by the consolidation, as one jury would hear the totality of the case and neither defendant would be able to point the finger at a missing defendant. The court also noted that with consolidation, the plaintiff would only need to call her medical experts to testify once and thereby avoid excessive fees. The court additionally noted that if the cases were not consolidated, there was the risk that the plaintiff might be able to collect twice for the same injuries. In granting the motion to consolidate, the Scoggins court pointed to the case of O’Meara v. Wilson, 12 Mercer L.J. 292 (1973), in support of its decision.
In the case of Hamilton v. Gallo, 334 A.2d 692 (Pa.Super. 1975), the Superior Court affirmed a trial court’s consolidation of cases arising out of separate motor vehicle accidents that occurred several months apart. The Hamilton court adopted the trial court’s reasoning that consolidation prevented the defendants from pointing the finger at the other defendant in separate trials and also prevented the plaintiff from downplaying the injuries from the one accident while emphasizing the other during separate trials.
While the decisions handed down to date all appear to favor the consolidation of separate complaints for separate accidents resulting in similar injuries, such consolidation is not automatic. Rather, under Rule 213, the courts retain broad discretion to consider whether or not to grant such requests to consolidate.
Moreover, as indicated in dicta in the Kalker decision referenced above, a consolidation request may be denied if the accidents arose in different counties, as venue issues may possibly serve to prevent the joinder of the two actions.
Damned If You Do, Damned If You Don’t
Regardless of whether or not a decision is made to consolidate the claims, plaintiffs pursuing a recovery for injuries arising out of two separate accidents face challenges.
If separate trials occur, the plaintiff faces the greater risks attendant with the defendant blaming a missing defendant and another accident in the trial at hand. The same problem still exists in a consolidated trial but perhaps to a lesser degree, as the jury may be turned off by defendants casting blame at each other and refusing to accept responsibility for their own actions.
Plaintiffs claiming similar injuries in two separate accidents that occurred close in time may also have serious problems attempting to prove through expert testimony which accident caused which injury.
Where a plaintiff’s medical expert fails to offer an unequivocal opinion, to a reasonable degree of medical certainty, as to which accident was responsible for which portion of the alleged injury, the plaintiff may be faced with a pretrial motion in limine seeking to preclude the testimony of the plaintiff’s expert or a motion for nonsuit at the close of the plaintiff’s case-in-chief at trial.
The courts of Pennsylvania have routinely held that an expert’s opinion must be unequivocal, as in Hamil v. Bashline, 392 A.2d 1280, 1285-1286 (Pa. 1980). Stated otherwise, an expert’s opinion that amounts to a mere guess or conjecture is not admissible in evidence, as in Laubach v. Haigh, 252 A.2d 683 (Pa. 1969), and Collins v. Hand, 246 A.2d 398, 403 (Pa. 1968).
Thus, the defense argument will be that if the plaintiff’s medical expert witness is unable to unequivocally conclude which injuries and symptoms are related to which accident as required by law, it logically and necessarily follows that a jury of laypeople will likewise be unable to render such a decision.
Burden of Proof
As was attempted in the case of Pennfield v. Meadow Valley Electric, 413 Pa. Super 187, 604 A.2d 1082, 1085 (1992), a plaintiff may attempt to shift the burden of proof on the apportionment of the damages to the defendants under the Restatement (Second) of Torts, Section 433B, which pertains to the burden of proof of multiple defendants who have combined to cause an injury.
Similarly, in Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995), the court noted that since “most personal injuries are by their very nature incapable of division,” a plaintiff should not be burdened with attempting to apportion the damages among multiple defendants. The court in Smith essentially treated the two separate defendants as joint tortfeasors in a case where the first defendant had rear-ended the plaintiff’s vehicle and, shortly thereafter, the second defendant came along and rear-ended both vehicles as they were pulled off the side of the road.
However, defendants may counter with the argument that the rules pertaining to the apportionment of damages amongst multiple defendants only applies to joint tortfeasors, which generally cannot be so in the context of a matter two entirely distinct accidents separated by time.
Such was the finding of the court in a case involving two car accidents in Shamey v. State Farm Mutual Automobile Insurance, 331 A.2d 498 (Pa.Super. 1974). In Shamey, the plaintiffs had been driving up a hill when their vehicle became stuck in snow and ice. The plaintiff’s vehicle was then struck in quick succession by two other vehicles.
As to the potential liability of the driver of the first vehicle that hit the plaintiff’s vehicle, the Shamey court stated that it would be inappropriate to hold him liable for damages that were not the result of his negligence. Rather, where there were two separate collisions by two allegedly negligent drivers, each could only be found to be responsible for the injuries caused by his negligence.
In McGuire v. Hamper Coal Mining, 49 A.2d 396, 397 (Pa. 1946), the plaintiff suffered an injury to the same spot on his head as a result of two separate accidents two weeks apart.
On the apportionment of damages, the Supreme Court in McGuire reasoned that, since each defendant was only responsible for his own negligence, “it was incumbent upon plaintiff to individuate the injuries and damages” sustained from each accident. In this regard, the court found that the plaintiff was required to offer proof on the damages issues “not with absolute exactitude, but at least with reasonable approximation” so as to prevent impermissible conjecture on the part of the jury in their deliberations.
Ultimately, the Supreme Court in McGuire stated that “it might seem at first blush as though an injustice is being visited upon plaintiff in denying him a recovery from defendant of damages to which he might otherwise be entitled merely because he was unlucky enough to have a second accident and cannot now apportion his injuries between two occurrences. On more mature reflection, however, it should be apparent that it would be at least equally unjust to impose upon defendant a liability for damages which it was not shown to have caused.”
Thus, the plaintiff who has the misfortune of having been injured in multiple accidents will have many issues to consider in addressing the quandary of whether to seek recovery at one trial or two.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.