By Kevin L. Connors, Esquire

Wrapping up 2014, there have been several key Pennsylvania Court Rulings that should be of interest to our followers, with a special acknowledgement to Dan Cummins and his excellent Tort Talk Blog:


The Pennsylvania Supreme Court, in a much-anticipated Decision on whether an attorney’s communications with an Expert Witness are discoverable, handed down a 3-3 Decision in Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. 2014), allowing the previous en banc Superior Court Decision (8-1), at 32 A.2d 600 (Pa. Super. 2011) to stand, effectively holding that communications between an attorney and an Expert Witness are not discoverable.

Subsequent to the Barrick Ruling, Pennsylvania Rule of Civil Procedure 4003.5 (a) (4) became enacted, incorporating the Barrick Rule into the PRCP, providing, in turn, that communications with Experts, to include draft reports by Experts, need not be disclosed “except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania Law.”

Irrespective of Barrick, either before the Supreme Court or the Superior Court, communications with Experts need careful phrasing, in avoidance of potentially undermining the credibility and objectivity of an Expert Witness.


In Roth v. Ross and Erie Insurance, the Pennsylvania Superior Court held, at 85 A.2d 590 (Pa. Super. 2014), that future medical expenses in a personal injury case should be included in the calculation of delay damages, post-verdict.

In Roth, the Superior Court ruled that the wording of PRCP 238 was clear and unambiguous, requiring the addition of delay damages to verdicts in Civil cases where the Plaintiff seeks monetary relief for bodily injury.

Future medical expenses are “by definition”, part of the monetary relief for bodily injuries caused by the accident in question, and, therefore, must be included in the delay damages calculation.


2014 saw a number of Decisions involving punitive damages claims being predicated upon a driver being distracted by using their cell phone at the time of the accident.

These cases were decided on a case-by-case basis, illustrating their fact-specificity.

In Pietrulewicz v. Gil, decided in the Lehigh County Court of Common Pleas on June 6, 2014, the Trial Court sustained the Defendant’s Preliminary Objections, striking the Plaintiff’s claims for recklessness and punitive damages, as those claims were based upon the Plaintiff alleging that the Defendant driver was using a cell phone at the time of the accident.

In Pietrulewicz, the Court ruled that allegations of the mere use of a cell phone, while driving, without more, was factually insufficient to sustain a claim of recklessness, supporting a basis for punitive damages.

Conversely, in Gugliotti v. O’Rourke, a recent Luzerne County case, the Trial Court denied a Defendant’s Preliminary Objections, and allowed the Plaintiff’s punitive damages claim to proceed, in a cell phone/auto accident case, where the Police Report indicated that the Defendant driver allegedly admitted rear-ending the Plaintiff’s car while attempting to answer not one, but two ringing cell phones.

More recently, the Honorable Mark Bernstein, in the Philadelphia County Court of Common Pleas, granted an unopposed Motion to Amend a Complaint filed by a Plaintiff in the case of Simmons v. Lantry, where the Plaintiff sought to amend a Complaint to add punitive damages in a case involving a tractor-trailer driver who was allegedly distracted by his cell phone use at the time of the accident.

Without question, the distracted driver recklessness claims will continue to mount, given the statistics published by the United States Department of Transportation, regarding distracted driving and cell phone use.


Collateral estoppel is the legal doctrine of issue preclusion, prohibiting a Plaintiff from trying to litigate additional claims arising out of the same accident that has already been settled or judicially determined.

In Borrelli v. AIU North America, the Honorable Mark Bernstein, again in the Philadelphia County Court of Common Pleas, granted a Motion for Summary Judgment asserted by an underinsured motorist insurance carrier, claiming that the Plaintiff was collaterally estopped from seeking underinsured motorist benefits, after agreeing to a high/low Arbitration with the Defendant Tortfeasor, which resulted in an Arbitration Award that was less than the Tortfeasor’s liability limits, negating the necessary predicate for an underinsured motorist claim, being that the Tortfeasor was “underinsured”.

In USAA v. Hudson, decided by the Delaware County Court of Common Pleas, the Court also ruled that the collateral estoppel doctrine precluded a subsequent UIM claim for the same accident, when the claim of the Plaintiff damages was previously litigated, against the Tortfeasor, with an Award being entered for less than the Tortfeasor’s liability limits, once again negating the predicate for an underinsured motorist claim, being that the Tortfeasor was “underinsured”.

Two Federal District Court cases also resulted in similar rulings, in Harvey v. Liberty Mutual Insurance Group, 8 F.Supp.3d 666 USDC-ed, 2014), with the Trial Court ruling that the Plaintiff was barred by the doctrine of collateral estoppel from proceeding on an underinsured motorist claim, after having agreed to a high/low Arbitration in the Third-Party personal injury case, with the agreed-upon high parameter being below the Tortfeasor’s liability limits, ultimately resulting in the Award against the Tortfeasor being below the Tortfeasor’s liability limits.

In Gallagher v. Ohio Casualty, the Trial Court for the Eastern District of Pennsylvania held that while a non-binding ADR result did not amount to collateral estoppel, since it did not result in a binding Award, nevertheless, the settlement of the ADR result precluded a subsequent underinsured motorist claim for the same accident.

The Collateral Estoppel Rulings are critical Decisions in the underinsured motorist arena, requiring collateral estoppel issues to be analyzed in the context of these claims.

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