Are preventability determinations and internal accident reports discoverable or admissible in your state?  What factors determine discoverability or admissibility?

Preventability determinations and internal accident reports are discoverable, but not necessarily admissible at trial. Pennsylvania’s discovery rules allow for a liberal and broad scope of discovery, although such materials may be inadmissible at trial. See Pa. R.C.P. 4003.1 (“a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . .”). Whether such materials are admissible depends on whether such “has any tendency to make a fact [of consequence in determining the action] more or less probable than it would be without the evidence.” Pa. R.Evid. 401.

While Pennsylvania recognizes no such privilege, other states have received argumen that a report containing a “preventable accident” determination is inadmissible under the shield of the “critical self-analysis” privilege.

Does your state permit discovery of 3rd party litigation funding files and, if so, what are the rules and regulations governing 3rd party litigation funding?

No. While third-party litigation funding is permitted in Pennsylvania in some cases, a third-party litigation funder’s files are typically protected by under the attorney-client privilege.  Further, communications with a litigation funder are protected as work product. Lambeth Magnetic Structures, LLC v Seagate Technology (US) Holding, Inc., 16–CV–0538, 2018 WL 466045, at *5 (W.D. Pa. Jan. 18, 2018).

However, any time that a plaintiff takes out a law loan, the funding company must file a UCC lien with the Department of State. While this filing does not provide the amount of the lien, it typically provides the date the lien was filed, which can be useful in comparing the timing of the funding with a plaintiff’s medical treatment in a particular action. One can also view the filing statement, which provides the debtor’s name and address, and the secured party’s name and address. These filings are accessed through the Department of State’s website / database, which requires log-in information.

What is the procedure for the resolution of a claim for injuries to a minor in your state?  Does the minor’s age affect the statute of limitations for a personal injury claim?

The court has to approve any settlement involving a minor, which typically involves filing a petition setting forth the claim, related expenses, and status of injuries among other elements. A minor’s age only affects the statute of limitations in certain circumstances. For instance, an “unemancipated minor” has two (2) years from his/her eighteenth (18^th) birthday to file suit for personal injury.  Other specific causes of action contain additional time. In Pennsylvania, for example, a minor who has suffered child sexual abuse typically has until age 30 to file a civil suit against the liable parties (12 years from the date the minor reaches the age of majority).

What are the advantages or disadvantages in your State of admitting that a motor carrier is vicariously liable for the fault of its driver in the context of direct negligence claims?

Pennsylvania courts have dismissed negligent entrustment and training claims when the employer has admitted that its employee was acting within the course and scope of his/her employment at the time of an accident. A recent trend suggests that allegations of negligent entrustment, supervision, and training asserted against an admitted employer of a named defendant are redundant, as such essentially permit plaintiffs to recover twice for claims of vicarious liability. This can be a useful tactic to avoid inflaming a jury’s sentiment to “make the company pay”; in these scenarios, the driver would be the solely named defendant on the verdict sheet. This has a tendency to carry with it more realistic verdicts

What is the standard applied for spoliation of physical and/or documentary evidence in your state?

One is only required to preserve evidence when he/she/it “knows that litigation is pending or likely” and “it is foreseeable that discarding the evidence would be prejudicial” to the other party. Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1270–71. Spoliation may be negligent, reckless, or intentional, and a party’s bad faith, or lack of it, in the destruction of potentially relevant evidence goes to whether and what type of sanction should be imposed, not whether spoliation occurred. Sanctions available to a trial court under the spoliation doctrine are dismissal; striking out pleadings or portions of pleadings; prohibiting the introduction of evidence; and permitting the inference at trial that the destroyed evidence would have been harmful to the offending party. To determine the appropriate sanction for spoliation, the trial court must weigh three factors: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Mount Olivet, 781 A.2d at 1269–70.

Is the amount of medical expenses actually paid by insurance or others (as opposed to the amounts billed) discoverable or admissible in your State?

Both are discoverable, but only the amount of medical expenses actually paid, rather than amounts billed, are admissible at trial. Moorhead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001)

What is the legal standard in your state for obtaining event data recorder (“EDR”) data from a vehicle not owned by your client?

Obtaining EDR data from another vehicle involves the same process as obtaining any other relevant discovery as outlined in Response to Question #1, as the party who owns the vehicle is the custodian of the EDR’s information. See Pa. R.C.P. 4003.1 (“a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . .”).

What is your state’s current standard to prove punitive or exemplary damages against a motor carrier or broker and is there any cap on same?

Punitive damages may only be awarded in Pennsylvania “for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984). To properly plead a claim for punitive damages, specific facts must be pled from which a reasonable person could conclude that the conduct complained of was outrageous, i.e., done with an evil motive, intentionally, maliciously, or with reckless indifference to the interests and welfare of others. SHV Coal Inc. v. Continental Grain Company, 526 Pa. 489 (Pa. 1991). Punitive damages may not be awarded for conduct that constitutes ordinary negligence or even gross negligence. Unfortunately, there is no cap on punitive damages.

Has your state had any noteworthy recent punitive damages verdicts? If so, what evidence was admitted supporting issuance of a punitive damages instruction? Finally, are any such verdicts currently on appeal?

Most of the recent notable punitive damages cases in Pennsylvania involve medical malpractice or products liability actions, as well as some breach of contract and libel/slander actions, however the following cases are related to the transportation industry:

• Brown v. Silvi Concrete Products, Inc.; Bridgestone Americas Tire Operations, LLC; McCarthy Tire Service Co., 2018 Philadelphia County, settled for an undisclosed amount prior to phase II of the trial which would have determined punitive damages; the verdict in favor of plaintiff was $10,665,000. The case involved an accident in which the van the plaintiffs were driving/riding in hit a tire retread in the roadway left by a cement truck owned by defendant Silvi Concrete Products, Inc., causing the van driver to take evasive action and over-correct, resulting in the van flipping onto its side and ejecting several passengers. The plaintiffs contended the defendant truck owner Silvi Concrete Products, Inc. failed to perform routine and adequate pre-trip inspections of their vehicles, including the tires, and failed to take notice of and repair a tire which had a screw-like object embedded in it.  The plaintiff contended the defendant tire manufacturers Bridgestone and McCarthy sold truck tires which were defective and contributed to the incident and resulting injuries.
• Williams, individually and as administrator of Estate of Williams v. Searfoss; 2018, Bucks County; Total Compensatory Award: $6,260,000; punitive damages: $100,000. A wrongful death and survival action brought after 21-year-old female died as a result of injuries incurred in a collision in which her vehicle was rear-ended at a high rate of speed, causing it to catch fire.  The striking vehicle was being operated by an intoxicated (over two times the legal limit) off-duty Pennsylvania state trooper who had just left a charity golfing event held for someone who had been killed by a drunk driver.
• Stamper v. Garcia; 2016 Lancaster County; Total compensatory award for Lisa Stamper: $2,092,533; Total compensatory award for Kaitlyn Berry: $2,525,000; punitive damages of $5,000,000 for each plaintiff.  Claims of wrongful death and reckless driving, warranting punitive damages in a motor vehicle accident head-on collision which resulted in the death of a 4-year old, and injuries to the mother/driver.  The plaintiff/mother contended that defendant was driving under the influence of alcohol, at an excessive rate of speed, with a suspended license, and failed to drive on the right side of the road.  Defendant allegedly was traveling at 55-65 mph in a 35 mph zone with a BAC of .144.  The jury awarded the plaintiff over 15 million in damages, $10 million of them punitive in what media sources claim is the largest judgment ever awarded in Lancaster or York Counties.  Defendant, charged with homicide by vehicle among other charges, reportedly was sentenced to prison for 19-38 years.
• Livingston v. Greyhound Lines Inc., 2019 PA Super. 134 (Pa. Super. 2019), appeal from the judgment entered December 28, 2016, in Philadelphia County. A rear-end motor vehicle accident where a Greyhound bus carrying over 40 passengers collided with a tractor-trailer truck. The accident occurred on Interstate 80 in Pennsylvania near mile marker 204 at approximately 1:30 a.m. on October 9, 2013, while the bus was traveling an overnight route from New York City to Cleveland, Ohio.  Plaintiffs and the truck defendants contended at trial that the accident was caused by the bus driver falling asleep at the wheel.  The jury awarded plaintiffs Liakh, Brown, Lencoski, and Osborn compensatory damages of $75,000, $125,000, $2.5 million, and $350,000, respectively, and awarded each plaintiff $500,000 in punitive damages.  In awarding punitive damages, the jury found the bus driver and Greyhound had subjective knowledge that the bus driver was too fatigued to drive on the night of the accident and that Greyhound’s fatigue prevention program was inadequate.
• Berry-Huynh, n/k/a Ross, individually and as administratrix of H.B.H., Minor, deceased v. Bodden, 2021 Bucks County, PA a wrongful death and survival action concerning a rear-end collision motor vehicle accident when the defendant was allegedly racing and travelling at 142 mph at the time of the accident, settled in 2021 for $5m, of which $1.5m in compensatory and $1m in punitive damages for the wrongful death of the minor and $1.5m in compensatory and $1m in punitive damages for the plaintiff driver and spouse.

Does your state permit an expert to testify as to content of the FMCSRs or the applicability of the FMCSRs to a certain set of facts?

Pennsylvania Rule of Evidence 702 provides guidance concerning testimony by expert witnesses.

• A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a)  the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b)  the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c)  the expert’s methodology is generally accepted in the relevant field.

Pa.R.E. 702.

If the trial Judge feels that the issue to be determined is beyond the average layperson’s capacity to understand and that it would assist the jury to permit expert testimony concerning the FMCSRs and/or the applicability of the FMCSRs to a particular set of facts, the expert testimony will be permitted.

Does your state consider a broker or shipper to be in a “joint venture” or similar agency relationship with a motor carrier for purposes of personal injury or wrongful death claims?

Whether a joint venture or agency relationship will be found to exist depends upon the specific factual scenario, the relationship between the parties, and the contractual documents.

• “Under Pennsylvania law, ‘[t]he existence or non-existence of a joint venture depends upon what the parties intended in associating together.’” Berger v. Cushman & Wakefield of PA, Inc., 2017 WL 3582229, at *12 (E.D.Pa. 2017) (quoting McRoberts v. Phelps, 138 A.2d 439, 443 (Pa. 1958)).
• If a joint venture is to be found, is must arise from a contract, which may either be a written contract, or “’may be implied from the acts and conduct of the parties.’”
• Whether a joint venture will be found to exist, “’depends on the facts and the circumstances of each particular case and no fixed nor fast rule can be promulgated to apply generally to all situations.’” (quoting McRoberts, 138 A.2d at 444).
• The following essential factors are required before a joint venture will be found:

(1) each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, knowledge, materials or money;

(2) profits must be shared among the parties;

(3) there must be a joint proprietary interest and right of mutual control over the subject matter of the enterprise;

(4) usually, there is a single business transaction rather than a general and continuous transaction.

Id. (quoting McRoberts, 138 A.2d at 443-444).

• Under Pennsylvania law, “in order for a joint venture to come into existence, there must be a showing of a joint proprietary interest and a right of mutual control of the subject matter of the enterprise.” Berger, id., (quoting Wilkins v. Heebner, 480 A.2d 1141, 1144 (Pa. Super. 1984)).

Provide your state’s comparative/contributory/pure negligence rule.

42 Pa.C.S. § 7102, comparative negligence, provides, in relevant part:

(a) General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(a.1) Recovery against joint defendant; contribution.–

(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

(2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.

(3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:

(i) Intentional misrepresentation.

(ii) An intentional tort.

(iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.

(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act.

(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.

(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.

(a.2) Apportionment of responsibility among certain nonparties and effect.–For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.

42 Pa.C.S. § 7102.

42 Pa.C.S. § 7102(b.3) applies to off-road vehicle riding;  42 Pa.C.S. § 7102(c) applies to downhill skiing.

Provide your state’s statute of limitations for personal injury and wrongful death claims.

The statute of limitations in Pennsylvania for personal injury and wrongful death claims is two (2) years.

42 Pa.C.S. § 5524(2) provides:

The following actions and proceedings must be commenced within two years:

. . .

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

In your state, who has the authority to file, negotiate, and settle a wrongful death claim and what must that person’s relationship to the decedent be?

According to Pennsylvania law, the right of action for the death of another exists for the benefit of the spouse, children or parents of the deceased.  42 Pa.C.S.A. § 8301(b).

• Where there is no spouse, children or parents of the deceased, the personal representative (executor) of the estate of the deceased can bring an action. 42 Pa.C.S.A. § 8301(d).
• The personal representative is either named in the will, or can be a spouse or other family member.

Is a plaintiff’s failure to wear a seatbelt admissible at trial?

No.

• 75 Pa.C.S.A. § 4581(a)(2) requires drivers and front seat occupants of vehicles to wear a properly adjusted and fastened safety seat belt system.
• 75 Pa.C.S.A. § 4581(e) provides that the failure to use/wear a seat belt is not admissible:

(e) Civil actions.–In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this subchapter; nor shall failure to use a child passenger restraint system, child booster seat or safety seat belt system be considered as contributory negligence nor shall failure to use such a system be admissible as evidence in the trial of any civil action; nor shall this subchapter impose any legal obligation upon or impute any civil liability whatsoever to an owner, employer, manufacturer, dealer or person engaged in the business of renting or leasing vehicles to the public to equip a vehicle with a child passenger restraint system or child booster seat or to have such child passenger restraint system or child booster seat available whenever their vehicle may be used to transport a child.

In your state, are there any limitations on damages recoverable for plaintiffs who do not have insurance coverage on the vehicle they were operating at the time of the accident? If so, describe the limitation.

Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”) determines this issue.

• If a plaintiff is driving without insurance coverage on the vehicle they were operating, they will be deemed to be limited tort. The MVFRL expressly provides that the owner of a registered but uninsured private passenger motor vehicle is “deemed” to have selected the limited tort option. 75 Pa.C.S.A. §1705(a)(5).
• When a person selects the limited tort alternative, he or she remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person, however, unless the injury sustained is a serious injury, the driver who elected limited tort coverage is precluded from maintaining an action for any noneconomic loss, 75 Pa.C.S.A. §1705(d).
• The limited tort elector is treated as if they had elected full tort coverage whenever the at fault person:
  • (i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident;
  • (ii) is operating a motor vehicle registered in another state;
  • (iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or
  • (iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).

75 Pa.C.S.A. §1705(d).

• 75 Pa.C.S.A §1731 also provides guidance concerning the availability, scope and amount of coverage for uninsured motorists.
• 75 Pa.C.S.A §1731(b) states, “Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles.”
• 75 Pa.C.S.A §1731(d) provides certain limitation on recovery, and states:

(1) A person who recovers damages under uninsured motorist coverage or coverages cannot recover damages under underinsured motorist coverage or coverages for the same accident.

(2) A person precluded from maintaining an action for noneconomic damages under section 1705 (relating to election of tort options) may not recover from uninsured motorist coverage or underinsured motorist coverage for noneconomic damages.

How does your state determine applicable law/choice of law questions in motor vehicle accident cases?

The paramount consideration under Pennsylvania’s approach to conflict-of-law questions is the extent to which one state has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.  Marks v. Redner’s Warehouse Markets, 2016 PA Super 36, 136 A.3d 984 (Pa.Super. 2016)

• The starting point for determining which of two or more states has the greater interest in the application of its law, in a choice-of-law analysis in a tort case, is to see what contacts each state has with the action,
• The rule of section 146 of the Restatement (Second) of Conflicts calls for application of the local law of the state where the injury occurred unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties. 149 provides, “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflicts §149 (1983).  Whether there is such another state should be determined in the light of the choice-of-law principles stated in the Restatement.
• The first step is determining whether a true conflict exists between the laws of the different states. Marks v. Redner’s Warehouse Markets, 136 A.3d at 988-989.
• Assuming a true conflict of law exists, the next step is to determine “which state has the most significant relationship to the parties and the occurrence in order to determine which jurisdiction’s substantive law applies.” , at 989.
• Contacts which are considered vital in determining the state of most significant relationship to an action include the place where the injury occurred and the place where the conduct causing the injury occurred. Laconis v. Burlington County Bridge Com’n, 583 A.2d 1218, 1222-1223 (Pa.Super. 1990).