KEY RULINGS EXPECTED FROM PA SUPREME COURT IN 2019
WILL THE COURT RECOGNIZE THE MODERN REALITIES OF LITIGATION AND MEDIA?
Speaking of anti-business, a Pennsylvania appellate court recently adopted one of the most restrictive views of the attorney-client privilege in the country.
In BouSamra v. Excela Health, an intermediate appellate court ruled that a company waived the attorney client privilege by forwarding a communication between inside and outside counsel to a public relations consultant who was retained to develop a media plan and plan a press conference regarding its defense in a defamation action. The court failed to understand the relationship between lawyering and communications in a modern business and the public interest served by respecting the confidentiality of such communications.
In January 2018, the Pennsylvania Supreme Court granted review. ATRA filed an amicus curiae brief arguing that a privileged document should not lose its protections merely because a general counsel, or other lawyer for a company, shares that document with non-lawyers responsible for working with the company to navigate a multi-dimensional legal issue. The court heard oral argument in October 2018.
WILL THE COURT EXPAND MEDICAL LIABILITY?
Another case argued before the Pennsylvania Supreme Court that month will decide whether plaintiffs can file medical malpractice claims long after the period set by the legislature to do so has ended.
In Yanakos v. University of Pittsburgh Medical Center, plaintiffs have urged the Supreme Court to adopt an exception to the state’s seven-year time limit to bring medical liability claims. There, the plaintiffs filed a lawsuit twelve years after a failed liver transplant, and said that they had not discovered the patient’s medical condition until after the seven-year period expired. While the legislature carved out other exceptions to the statutory period, and had not done so for this situation, the plaintiffs asked the court to find the statute unconstitutional and apply its own exception.
The intermediate appellate court properly rejected this invitation, finding the seven-year statute of repose is reasonable and in line with the government’s interest in prompt determinations of whether there was medical negligence. Creating an exception and allowing an extended time period, the court ruled, “would expose health care providers to further liability, undermining the equally legitimate government interest of keeping medical professional liability insurance affordable for the benefit of citizens of this Commonwealth.”
WILL THE COURT REQUIRE DEFENDANTS TO PAY MORE THAN THEIR FAIR SHARE IN ASBESTOS AND OTHER PRODUCT LIABILITY CASES?
On July 21, 2018, the Pennsylvania Supreme Court granted review of a Superior Court decision holding that a state law that imposes liability in proportion to a defendant’s level of responsibility for an injury, known as the Fair Share Act, applies to asbestos cases.
The Superior Court had reversed a Philadelphia Court of Common Pleas ruling that exempted asbestos cases from the same rules for allocating fault that apply in other cases. Without such a rule, a single business that is found to have contributed to a plaintiff ’s exposure to asbestos could end up having to pay the entire damage award, even if the plaintiff ’s exposure was largely caused by others. Under the Fair Share Act, a defendant can be required to pay the full award only if found more than 60% responsible. In addition, the ruling could more broadly exempt other strict product liability cases from the Fair Share Act.
The Supreme Court also will have the opportunity to require plaintiffs to provide the court with any evidence of bankruptcy trust claims or settlements. The Superior Court appropriately held that when a jury apportions fault among potentially responsible parties, the Fair Share Act requires that they consider evidence of any settlements by the plaintiffs with bankrupt entities. Ideally, the Supreme Court should require plaintiffs to provide all evidence of past and future bankruptcy trust claims and settlements, or consider them waived. If the high court does not do so, or worse, blindfolds juries from considering such settlements, passing a law to provide transparency in claims made against asbestos-related bankruptcy trusts, like H.B. 238, will become even more critical.
As of publication, this closely-watched case, Roverano v. John Crane, Inc., is pending before the Pennsylvania Supreme Court with no date yet set for oral argument.