Highlighting the first oral argument session after the official resignation of Justice Joan Orie Melvin are two of the bigger cases on the justices’ docket this year: a case over whether communications between attorneys and their expert witnesses are discoverable and one about when the statute of limitations starts running in a medical malpractice case where there are multiple potential causes of injury.
Barrick v. Holy Spirit Hospital, the attorney-expert communication case, is set to kick off the second day of a two-day argument session today before the court in Pittsburgh. Scheduled immediately after that on Wednesday is Garman v. Heine, which deals with whether, in light of the certificate of merit requirement, the statute of limitations in a medical malpractice case where there are multiple potential causes of an injury should toll upon confirmation of the specific cause of the injury or simply upon discovery that the injury was the result of someone else’s conduct.
Also scheduled for Pittsburgh’s arguments: Should Pennsylvania’s Mechanics’ Lien Law be construed liberally? Do the courts have subject-matter jurisdiction over mortgage foreclosure cases where lenders failed to comply with notice requirements found in the state Homeowners’ Emergency Mortgage Act? And is a government entity a "person" subject to lawsuits under the Unfair Trade Practices and Consumer Protection Law?
The justices have been hearing and deciding cases as a six-justice court, split evenly along party lines, since May of last year, when Orie Melvin was charged with nine criminal counts alleging she used legislative and judicial staff to perform campaign work. With her official resignation last month, the court awaits an interim appointment justice and remains unguarded from 3-3 splits.
Leaders from the state legal community have called for Governor Tom Corbett to nominate a qualified candidate as soon as possible.
If a justice is appointed after the cases are argued but before the court votes on it, court watchers said the justices do have the ability to include the newly appointed jurist in the matter, but might not necessarily do so.
Robert L. Byer, a former Commonwealth Court judge who chairs the appellate practice at Duane Morris, said the court could have lawyers resubmit the case on briefs and then include the new justice who had missed oral arguments. The tactic would also help polish the court’s statistics, he noted, because the resubmission would restart the clock for time elapsed between submission of the case and the court’s ultimate ruling.
Jane Cutler Greenspan, who was appointed to the court in 2008 to fill the void left by Justice Ralph J. Cappy, said that, in her experience, the court may have the parties reargue or resubmit a case on the briefs, but would not necessarily employ that procedure just to avoid a 3-3 split.
In Barrick, the court has agreed to consider, as stated by petitioners Sodexho Management Inc., Sodexho Operations LLC and Linda J. Lawrence, "whether the Superior Court’s interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work-product protection to all communications between a party’s counsel and their trial expert."
In a complete reversal of course from its original decision in September 2010, the state Superior Court ruled in November 2011 that communications between an attorney and his expert witness are not discoverable.
The nine-judge en banc panel ruled 8-1 to reverse an earlier three-judge panel that had found in September 2010 that such communications were discoverable.
The court ruled in November that a Cumberland County, Pa., trial judge and the three-judge panel had misinterpreted Pa.R.C.P. 4003.5, which deals with discovery of expert testimony related to trial preparation material.
"We also underscore that Pa.R.C.P. 4003.5(a)(1) narrowly defines the substantive inquiries that a party may require an opposing expert to answer in an interrogatory," Judge Sallie Updyke Mundy said for the majority. "As this section of the rule specifies, a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion. Any other interrogatory, aside from these two specific inquiries, exceeds the scope of the plain language contained within Pa.R.C.P. 4003.5(a)(1)."
As the state Supreme Court indicated in its 2006 opinion in Cooper v. Schoffstall, Mundy said, any additional discovery of testimony by an expert witness "other than this narrowly defined set of interrogatories" requires a party to show cause and get a court order to conduct the discovery.
In Barrick, defendant Sodexho served its subpoena on treating physician Thomas Green, who also served as an expert witness for plaintiffs Carl J. and Brenda L. Barrick. It sought the medical records of Carl Barrick, who was injured on Sodexho-managed property at Holy Spirit Hospital when a chair he was sitting on in the hospital cafeteria collapsed.
Green’s practice, Appalachian Orthopedic Center, informed Sodexho that it would turn over the patient’s file, but would exclude records that pertained to Carl Barrick that were not created for treatment purposes. Sodexho filed a motion to compel for failure to comply with the subpoena. Appalachian argued the subpoena cannot include trial preparation materials in connection with communications between Barrick’s counsel and Green.
Mundy said in her opinion that Sodexho’s subpoena exceeded the scope of 4003.5(a)(1) for two reasons. First, Sodexho intended to use the subpoena to obtain records directly from an opposing party’s expert witness by sending the subpoena directly to Appalachian, she said. Mundy said that form of discovery is not allowed.
Second, Sodexho overreached in terms of substance because it sought information beyond the scope of 4003.5(a)(1), she said.
Med Mal Statute of Limitations
When the court granted allocatur in Garman in September of last year, the justices said they would examine whether the Superior Court properly applied the court’s previous ruling in Wilson v. El-Daief, when it held that, under the discovery rule, the statute of limitations in such cases tolls upon discovery of an injury that was caused by another’s conduct, even if it’s unclear at that point exactly who is to blame.
The Superior Court, in an unreported August 2011 memorandum opinion, vacated a $735,000 jury award to plaintiffs Kelly Garman and her husband, Kent Garman, saying the statute of limitations on the negligence claim upon which they had been successful had actually expired a year before the claim was brought.
The court reasoned that the statute of limitations had begun tolling when Kelly Garman discovered she had been injured by a surgical sponge left inside her abdomen during one of several surgeries, rather than when she finally pinpointed the exact day the sponge had been left there.
That case is slated for Wednesday, as well.
Mechanics’ Lien for Fringe Benefits?
Also slated for Wednesday is Bricklayers of Western Pennsylvania Combined Funds v. Scott’s Development. The justices granted allocatur after an en banc panel said trustees of an employee benefits fund may proceed with mechanics’ lien claims against a developer for the money owed to the unions after the contractor that hired the unions went out of business.
In taking up Bricklayers and a combined case, the justices are set to hear arguments about why the trustees of the unions’ benefits funds should not be able to assert that a collective bargaining agreement between them and the contractor constituted sufficient "implied contracts" with the contractor.
Scott’s Development Co., the defendant real estate owner, hired the contractor, J. William Pustelak Inc., to do construction work on its property. Pustelak hired the two unions.
Ruling 7-2, the Superior Court ruled under the Mechanics’ Lien Law that the developer may be forced to make contributions into two unions’ benefits funds, after Pustelak went out of business and failed to fulfill an agreement with the unions to make those payments.
In its November 28, 2012, grant of allocatur, the high court also took up the question of whether "even liberal construction of the Mechanics’ Lien Law would permit an employee of a contractor to assert a claim as a ‘subcontractor.’"
Act 91 Notice
In a trio of cases consolidated under the caption Beneficial Consumer Discount v. Vukman, the justices are set to consider whether a trial court properly set aside a judgment and sheriff’s sale on the basis that a foreclosure notice was deficient. The homeowners have argued the courts do not have subject-matter jurisdiction because their mortgage lenders’ notices of foreclosure failed to inform them they had 30 days to have a face-to-face meeting with the lenders.
Act 91 requires that notices of mortgage foreclosure, lenders taking possession of mortgage debtors’ securities or lenders accelerating the maturation of mortgages "’shall also advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has 30 days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise,’" according to the Superior Court’s opinion.
That matter is scheduled for argument today.
Government Agency a ‘Person’?
When the Supreme Court took up Meyer v. Community College of Beaver County and its companion case, Barr v. Community College of Beaver County, the court said it would look at whether the Commonwealth Court improperly relied on the manner in which the word "person" is used in the UTPCPL as the sole basis for establishing that the legislature had intended "person" to refer to government entities.
The justices have already heard the cases. In August 2010, the justices overturned two en banc decisions from the Commonwealth Court that held governmental immunity extended to all statutory causes of action, whether arising from torts or contracts, unless certain allegations of negligence were made.
Justice Thomas G. Saylor, who authored the opinion, wrote that the Commonwealth Court’s approach was "not sustainable."