June 11, 2009

Superior Court Allows
Plaintiff to Withdraw
PRCP 1311.1 Stipulation,
Limiting Recoverable
Damages to $25,000,
Removing Limitation on Jury's Consideration of Plaintiff's Damages

By Kevin L. Connors

In a case of first impression, the Pennsylvania Superior Court recently ruled, on May 1, 2009, in Dolan v. Fissell, No. 239 EDA 2008, that the Plaintiff, who was seeking personal injury damages from a motor vehicle accident, was permitted to withdraw her PRCP 1311.1 Stipulation, allowing a Plaintiff to admit medical records and reports into evidence at trial without the necessity of presenting expert medical witness testimony to offer foundation opinion concerning causation, in exchange for the Plaintiff’s recoverable damages being limited to a maximum award of $25,000.

In Dolan, the Plaintiff sought personal injury damages for chronic low back pain from a motor vehicle accident. The accident involved a rear-end collision, with the Plaintiff’s claims initially arbitrated under compulsory county arbitration procedures in Chester County pursuant to PRCP 1301. Plaintiff was awarded $28,220.

The arbitration award was then appealed by the Defendant, with the case ultimately proceeding to a jury trial before the Honorable Edward Griffith in Chester County.

Rule PRCP 1311.1, first adopted in 2005, and later amended in 2007, increases the amount recoverable from $15,000 to $25,000.

Shortly after the Defendant appealed the arbitration award the Plaintiff filed a Stipulation on damages pursuant to PRCP 1311.1. This rule, first adopted in 2005, and later amended in 2007 to increase the amount recoverable from $15,000 to $25,000, is a legal accommodation, balancing the costs associated with securing expert witness testimony against the imposition of a cap on recoverable damages.

Intended as a measure to reduce the costs of trying cases for arbitration appeal cases, involving personal injuries not considered to be serious enough to warrant the not insignificant costs associated with expert witness testimony, the filing of the Stipulation streamlines trial costs for Plaintiffs, with jury verdicts on damages being molded subject to the legislated cap on damages.

Plaintiff requested permission of the trial court judge to withdraw her PRCP 1311.1 Stipulation.

In Dolan, the Plaintiff requested permission of the trial court judge to withdraw her PRCP 1311.1 Stipulation at an Administrative Conference before the trial judge. The withdrawal request was predicated on the Plaintiff also having a property damage claim that would have also been subject to the $25,000 limit.

The trial judge granted the request, over the objection of Defendant’s counsel. Permitting the withdrawal of the Stipulation, the trial judge twice continued the case, allowing additional time for the Defendant to prepare defenses to the damages claims being made by the Plaintiff.

In the course of defending the Plaintiff’s damages claim, the Defendant referred the Plaintiff for a defense medical examination, with that examination resulting in the medical examiner diagnosing the Plaintiff with a chronic sprain syndrome, relating that syndrome to the motor vehicle accident at issue.

At trial, about 14 months after the original arbitration award, a jury verdict was entered for the Plaintiff, with the jury awarding the Plaintiff over $400,000 in damages, with the Plaintiff also being entitled to delay damages of almost $25,000.

Post-trial Motions were denied, with the denial of Post-trial Motions being appealed to the Superior Court.

Before the Superior Court, a critical issue raised by the Defendant was whether the trial judge had erred in allowing the Plaintiff to withdraw her Stipulation to proceed on medical reports, since that Stipulation imposed a cap on the monetary damages that the Plaintiff could have recovered.

Superior Court ruled, in a case of first impression, that the disposition of that issue was a matter solely within the “discretion for the trial court to decide."

Affirming the trial court’s denial of Post-trial Motions, the Superior Court ruled, in a case of first impression, that the disposition of that issue was a matter solely within the “discretion for the trial court to decide,” with the Superior Court affirming the trial court opinion in favor of the Plaintiff, as both the trial court and the Superior Court noted that PRCP 1311.1 is probably improperly characterized as a “Stipulation,” as it is a unilateral “Stipulation,” and does not involve any formal agreement between the parties regarding a limitation on damages.

The PRCP 1311.1 Stipulation never becomes “binding” or “final,” and, as such, can be withdrawn by the Plaintiff, so long as the Defendant’s preparation for trial is not prejudiced.

There being, in essence, no “bargaining” between the parties, the quid pro quo between the parties being the less expensive cost of trial for the Plaintiff and the cap on damages for the Defendant, the PRCP 1311.1 Stipulation never becomes “binding” or “final,” and, as such, can be withdrawn by the Plaintiff, so long as the Defendant’s preparation for trial is not prejudiced, and so long as the Plaintiff then proceeds to present medical expert witness testimony at trial, either via live testimony or by way of a videotaped deposition.

In affirming the trial court’s disposition of this issue, the Superior Court held that the trial court judge has “the discretion to allow a Plaintiff to withdraw a limitation on damages for good cause and provided there is no substantial prejudice to the Defendant.”

A secondary issue raised by the Defendant on appeal involved the Plaintiff calling the Defendant’s medical expert witness to testify at trial.

A secondary issue raised by the Defendant on appeal involved the Plaintiff calling the Defendant’s medical expert witness to testify at trial, as that medical examiner rendered opinions consistent with the Plaintiff’s treating physician, that is, that the Plaintiff was suffering from a chronic sprain syndrome related to the motor vehicle accident.

Again, the Superior Court ruled in favor of the Plaintiff, noting that this issue was also one of first impression before the Court. In its appeal, the Defendant contended that its medical expert witness could not be called by an adverse party, notwithstanding the medical expert agreeing to testify for the Plaintiff after being contacted by Plaintiff’s counsel.

In holding that an expert cannot be compelled to testify for a party that did not retain or employ the expert, in reliance upon Pennsylvania Co. for Insurance v. City of Philadelphia, 105 A. 630 (Pa. 1918), the Superior Court could not find any controlling legal authority, precluding an expert witness from voluntarily testifying for a party adverse to the party retaining or employing the expert.

Superior Court held that the medical expert “owned” his opinions, and that in the absence of any preclusion contract, the expert was free to choose to agree to testify.

Since the Defendant could not demonstrate that the medical expert had relied upon or utilized privileged information, and since there was no specific Rule that the Defendant could cite to preclude the testimony, the Superior Court held that the medical expert “owned” his opinions, and that in the absence of any preclusion contract, the expert was free to choose to agree to testify, when asked to do so by an adverse party.

Three other issues of lesser importance were raised by the Defendant on appeal. One of those issues involved the Defendant requesting a mistrial when its medical expert witness, called by the Plaintiff as a trial witness, made a passing reference to “insurance,” with the trial court judge refusing to grant the Defendant a mistrial on those grounds.

Holding that the general rule in Pennsylvania is that “evidence of insurance is irrelevant and prejudicial and justifies grant of a mistrial,” in reliance upon Carpinet v. Mitchell, 853 A.2d 366 (Pa. Super. 2004), no less true, according to the Superior Court is that the “mere mention of the word insurance by a witness does not necessitate a new trial,” citing to Dolan v. Carrier Corporation, 623 A.2d 850 (Pa. Super. 1993). Although the reference to “insurance” was objected to by the defense counsel during the Dolan jury trial, the objection was overruled, no jury instruction was given by the trial judge in that reference, and no request for a mistrial was made by defense counsel.

Since “insurance” was only mentioned one time during the trial, and that its mention was in the context of the medical expert defining “independent medical examination,” the Superior Court held that there was no prejudice to the Defendant, and that the Defendant was not, therefore, entitled to a new trial.

The Defendant also appealed the jury verdict on grounds that the verdict was excessive, with the Superior Court holding that the Plaintiff’s testimony supported the verdict, as she testified to continuing symptoms, and a chronic injured condition. In this light, the Superior Court agreed with the trial judge, who had held “the award is neither gross nor excessive in light of Plaintiff’s injuries; the losses for which Plaintiff has been compensated are attributable to the injuries that she suffered in the collision with Fissell.”

As to the Defendant’s contention that the verdict was against the “weight of the evidence,” the Superior Court found this argument to be a misstatement of the evidence presented at trial, and the Superior Court summarily dismissed this issue, affirming the trial court’s denial of the Defendant’s Post-trial Motions to vacate the jury verdict in favor of the Plaintiff and against the Defendant.

Practical Tips

In light of Dolan, what measures should personal injury Defendants utilize in preparation for trial?

With Dolan seemingly eviscerating any degree of finality as to utilization of expert opinion at trial and as to there being any damages cap on a Plaintiff-favorable verdict, one consideration would involve a more formal Stipulation or contract being entered into by the parties, no different than when parties utilize high/low verdict agreements, to mold jury verdicts within high/low parameters.

With a Stipulation entered into by all parties, it would necessarily be harder for the Plaintiff to withdraw from the Stipulation, although there is no absolute guarantee that a trial court judge would still not grant a Plaintiff's request to withdraw the Stipulation, if the Plaintiff was capable of proving “good cause,” as well as the absence of “prejudice” to the Defendant.

Obviously, balancing “good cause” against “prejudice” can only be done on a case-by-case basis.

Dolan seems to stand for the suggestion that Defendants need to enter into formal expert witness contracts with their expert witnesses.

As to the expert witness issue, Dolan seems to stand for the suggestion that Defendants need to enter into formal expert witness contracts with their expert witnesses, whereby the expert witness agrees to only testify for the party retaining or employing the expert, and specifically agrees not to testify for an adverse party.

Short of a formal expert witness retention contract, it is certainly suggested that communications, to include the initial referral letter to the expert witness, clearly delineate the retaining party’s expectation that the expert witness has been retained exclusively on behalf of the retaining party, and that the witness would not communicate with, or agree to be called as a witness for, any adverse party, absent an executed/signed waiver by the retaining party.

Dolan is also a cautionary tale as to arbitration appeals, as the appeal in Dolan resulted in the Plaintiff recovering a jury verdict representing a near 400% increase over her initial arbitration award. Caution must be exercised when appealing an award entered by an arbitration panel consisting of three, more or less experienced, attorneys, as the appeal, unless the case is otherwise settled, can be left in the hands of inexperienced jurors whose mentation is much more unpredictable, with very limited appellate rights post-verdict for the appealing Defendant to challenge.

Questions concerning this article can be directed to our casualty litigation attorneys.

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