LITIGATION UPDATE - Margolis Edelstein

LITIGATION UPDATE

April, 2011

HARRISBURG OFFICE 3510 Trindle Road Camp Hill, PA 17011 717-975-8114

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WESTERN PA OFFICE 983 Third Street Beaver, PA 15009 724-774-6000

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CENTRAL PA OFFICE P.O. Box 628

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MT. LAUREL OFFICE 100 Century Parkway

Suite 200 Mt. Laurel, NJ 08054

856-727-6000

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Berkeley Heights, NJ 07922 908-790-1401

WILMINGTON OFFICE 750 Shipyard Drive Suite 102

Wilmington, DE 19801 302-888-1112

LIABILITY

Smolsky v. Governor's Office of Administration, Pa. Cmwlth., 990 A.2d 173 (2010)

Smolsky, an inmate at the State Correctional Institution at Mahanoy, sued the Governor's Office of Administration and a telephone service supplier under the Unfair Trade Practices and Consumer Protection Law, the Federal Telecommunications Act of 1996, the Telephone Communications System Act, and the Constitutions of the United States and Pennsylvania, alleging that the telephone service provider was price-gouging him for his telephone service. The suit was dismissed under the Prisoner Litigation Reform Act which requires dismissal of such lawsuits if the prisoner is an abusive litigator or "frequent filer." Smolsky had unsuccessfully pursued at least three other "prison condition" suits unsuccessfully. After three strikes, no further "prison condition" lawsuits are permitted.

Gillard v. AIG Insurance Company, Pa., ? A.3d ? (2011)

Gillard sued AIG for bad faith arising out of AIG's handling of his UM claim. During discovery, Gillard sought production of all documents from the file of the law firm representing AIG in the underlying UM claim. The trial court and the Superior Court ordered production of the documents, reasoning that the attorney?client privilege applied only to confidential communications from the client to the attorney, but not to communications from the attorney to the client. The Supreme Court reverses. The attorney?client privilege operates in a two-way fashion to protect confidential client to attorney or attorney to client communications made for the purpose of obtaining or providing professional legal advice. To protect against abuse, existing practices, procedures, and limitations, including in camera judicial review, are sufficient to provide essential checks.

This opinion does not address the "work product rule" which is actually broader than the attorney-client privilege because it protects any material, regardless of whether it is confidential, prepared by the attorney in anticipation of litigation.

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Gormley v. Edgar, Pa. Super., 995 A.2d 1197 (2010) Gormley sued Edgar for injuries arising out of an automobile

accident. In the Complaint, Gormley alleged, inter alia, "anxiety" caused by her injuries. In separate paragraphs, she further alleged "severe shock to her nerves" and "mental anguish and humiliation." In discovery, Edgar sought an order requiring Gormley to consent to release of certain pre-accident emergency room mental health records. The trial court, after reviewing the records in camera, ordered their release. On appeal, the Superior Court affirms, ruling that neither the Mental Health Procedures Act (which concerns only involuntary health treatment and also voluntary inpatient treatment) nor the Mental Health and Mental Retardation Act (which concerns only persons admitted, committed, or detained under that statute) afforded any protection to Gormley's emergency room records. The Drug and Alcohol Abuse Control Act also did not apply, since Gormley acknowledged the records did not involve drug or alcohol use. By statute, however, Pennsylvania does provide a patient-client privilege with regard to treatments by a psychiatrist or psychologist. That privilege admittedly applied to Gormley's records. The issue on appeal was whether Gormley waived that privilege by the allegations in her complaint. "Anxiety" is a recognized mental disorder and thus the Complaint's allegations of "anxiety" waived the privilege. Edgar was permitted to investigate whether that mental condition pre-existed the accident or the extent to which the accident may have aggravated a pre-existing condition. The other allegations involving "severe shock to her nerves" and "mental anguish and humiliation," however, did not identify recognized mental disorders and thus these general allegations alone neither placed Gormley's mental condition at issue nor resulted in a waiver of privilege.

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Graham v. Campo, Pa. Super., 990 A.2d 9 (2010)

Graham was injured in a hit and run accident involving a vehicle owned by Campo. The Campo vehicle did not stop but bystanders recorded the license plate number and the police traced the vehicle to Campo. Graham sued Campo for her injuries, alleging in the Complaint that Campo was the "owner and operator" of the vehicle involved in the accident. Campo's Answer admitted he was the owner but claimed lack of sufficient information to either admit or deny whether he was the operator. After expiration of the Statute of Limitations, Campo identified his friend Garcia as the operator. Garcia did not have a valid driver's license. Graham sought, unsuccessfully, to amend her Complaint to include allegations of negligent entrustment of the vehicle by Campo to Garcia. In a bench trial, the court found that Campo violated Section 1574 of the Motor Vehicle Code by allowing an unlicensed person to operate his vehicle. As a result, by operation of statute, Campo was jointly and severally liable with Garcia for any damages caused by the accident. While Graham had not alleged Section 1574 in her Complaint, she had broadly alleged violation of unspecified statutes. Campo could have, but did not, move to strike the broad allegations and seek more specific allegations. On appeal, the Superior Court affirms.

The trial court also ruled that Graham fell within the "serious injury" exception to "limited tort," and more particularly suffered a "serious impairment of bodily function." The Superior Court affirms on his issue as well, noting:

Graham testified that her injuries caused her to heavily favor her right arm when doing chores to lessen the pain. She testified that her injuries restrict her from doing daily activities such as vacuuming, washing her hair, styling her hair, getting dressed, putting on jewelry, mixing and cooking, driving, typing, taking spinning classes, and lifting her granddaughter. Her injuries also cause her to be overly cautious in general motions such as lifting or pulling.

The Superior Court found this evidence sufficient to prove a "serious injury."

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Tagouma v. Investigative Consultant Services, Pa. Super., 4 A.3d 170 (2010)

After falling at work and fracturing his hand, Tagouma was later diagnosed with reflex sympathetic dystrophy. He sought workers' compensation benefits. To investigate whether Togouma's disability claims were valid, the workers' compensation carrier hired ICS to perform surveillance, which took place at night from a distance of 80 yards by use of a video camera with a zoom feature. Tagouma, a Muslim, was filmed praying inside an Islamic Center. Tagouma sued ICS for invasion of privacy, more particularly the intrusion on seclusion aspect of that tort. The Superior Court affirms summary judgment for ICS. Anyone making claim for personal injuries should expect reasonable inquiry and investigation about the claim and alleged injuries and thus any interest in privacy is circumscribed. Public policy favors such inquiry so that valid claims can be ascertained and fabricated claims can be exposed. Surveillance in this case was thus not per se actionable. In addition, Tagouma was praying near a window and thus could be seen by any passerby inclined to look. Use of technological enhancement (e.g., zoom lens, binoculars, etc.) does not alter the legal analysis. Pennsylvania has long permitted use of various types of vision enhancing equipment from a lawful vantage point without violating an expectation of privacy.

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