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Should Rule 1311.1 Regarding the Entering of Documents into Evidence in Lieu of Witness Testimony be Amended?

Alan Schnoll, Esq. on 5/11/2009

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Trial practice for appeals from compulsory arbitration cases changed significantly with the adoption of Pa.R.Civ.P. 1311.11.  This Rule permits a plaintiff to offer documents into evidence at trial in lieu of the testimony of a witness.  The types of documents that can be offered are the same as those that can be offered at an arbitration and are set forth in Pa.R.Civ.P. 1305(b).

            In an appeal of a motor vehicle case, the plaintiff can now proceed on medical reports instead of presenting a treating doctor’s testimony, either live or on videotape.  If you consider that the typical orthopedist charges $4,000 to $5,000 for a videotaped trial deposition, the cost benefit to the plaintiff, whose case may only be worth $10,000, is obvious.  In order to obtain the benefit of this Rule, however, the plaintiff must stipulate to limit damages to $25,0002.

            In the more than five years since the Rule was adopted, the Courts have had to address the Rule’s ambiguities and, in some cases, the Rule’s total silence on some issues.  One issue is when must the stipulation3 be filed.  Rule 1311.1(a) says:

The stipulation shall be filed and served upon every other party at least thirty days from the date the appeal is first listed for trial.

Each County has a different way of listing arbitration appeals for trial and, as a result, there is some confusion with regard to this aspect of the Rule.  In 2007, the Civil Procedural Rules Committee of the Supreme Court of Pennsylvania proposed changing the Rule to require the stipulation to be filed within thirty (30) days of the date the appeal is filed.  The Compulsory Arbitration Committee of the Philadelphia Bar Association opposed this change because it would reduce the number of cases proceeding under the Rule.  When the Rule is invoked, it is often necessary to request supplemental reports from doctors to define medical terms so that a lay jury can understand them.  The proposed change would make it difficult to obtain revised reports from the treating doctors within the thirty day time period.

            In Lecky v. Commonwealth of Pennsylvania, Department of Transportation, 951 A.2d 423, 2008 Pa. Commw. LEXIS 274, the Commonwealth Court addressed the provisions of the Rule which require a party to serve a Notice of Intent to Offer Documentary Evidence pursuant to Rule 1311.1.  The Rule states that a copy of each document shall be attached to the Notice.  The plaintiff in Lecky, failed to give such notice and attach the documents as required.  The plaintiff did list and attach the documents in his Pre-Trial Statement.  The trial court precluded the introduction of these documents at trial reasoning that adherence to the Rule was mandatory, even where the defendant admitted that it had received the same documents in discovery and the Pre-Trial Statement.  The Commonwealth Court reversed and granted plaintiff a new trial concluding that there had been substantial compliance with the Rule.  On appeal, the Supreme Court of Pennsylvania4 vacated the order of the Commonwealth Court and reinstated the order of non-suit in favor of PennDOT saying “a party who disregards rule’s terms entirely and determines for himself what steps he can take to satisfy rule’s requirements” has not  made substantial attempts to conform to the rule.

            The case of Gaston v. Minhas, 2007 Pa. Super. 367; 938 A.2d 453, identifies some of the most troubling aspects of the Rule that have arisen under subsection (d).  That section states:

(d) Any other party may subpoena the person whose testimony is waived by this rule to appear at or serve upon a party a notice to attend the trial and any adverse party may cross examine the person as to the document as if the person were a witness for the party offering the document.  The party issuing the subpoena shall pay the reasonable fees and costs of the person subpoenaed to testify, including a reasonable expert witness fee if applicable.

In Gaston, the plaintiff proceeded under the Rule.  The defense subpoenaed the treating doctor to testify at trial.  The doctor appeared but refused to testify, invoking the 5th Amendment5.  The defense then objected to the admission of the doctor’s records.  The trial court overruled the defendant’s objection and permitted introduction of the doctor’s records.

            The Superior Court reversed the trial court and granted a new trial on damages.  The Court noted that Rule 1305(b)(4), which governs Compulsory Arbitrations, is virtually identical to Rule 1311.1(d).  The comment to Rule 1305 states:

The special relaxation of the rules of evidence is conditioned on the power of the opponent to subpoena the person whose testimony is waived; if that is not possible, for territorial or other reasons, the foundation for the special rule disappears, and the proponent must follow normal rules of evidence.

The Court reasoned that in both 1311.1(d) and 1305(b)(4), the relaxation of the evidentiary rules is balanced by the opportunity to subpoena and cross examine the author of the document.  “In both instances, the protection built into the rules for the non-offering parties - their right to cross-examine the witness about the document - is eviscerated, eliminating the foundation for these special rules.”  Gaston, 938 A.2d, at 456.

            The case of Kopytin v. Aschinger, 2008 Pa. Super. 68; 947 A.2d 739, allocatur denied, 964 A.2d 2, raises a number of other issues regarding Rule 1311.1(d).  In Kopytin, the plaintiff proceeded under Rule 1311.1 and the defense subpoenaed the treating doctor.  At trial, the plaintiff elected not to conduct a direct examination of the doctor but, instead, indicated that he would rely on the doctor’s written report and conduct a re-direct after the defendant’s cross-examination.  The trial court refused to allow the doctor’s report to be read or given to the jury.  The Court then permitted defense counsel to cross-examine the doctor.  The Court ruled that the plaintiff had waived his right to present his case to the jury prior to the cross-examination.  The Superior Court disagreed and awarded a new trial.

            The trial court also permitted the defense to cross examine the doctor on medical reports the doctor had written in other cases and which were not produced during discovery.  The Superior Court noted that Rule 1311.1(d) states:  “any adverse party may cross examine the person as to the document as if the person were a witness for the party offering the document.”  Kopytin, 947 A.2d, at 747 (emphasis in original).  The Superior Court noted, “the language of the Rule does not extend its scope beyond the right of the non-offering party to cross-examine the witness about the document” outside of the ones the plaintiff attached to the Notice.  The Court found this cross examination in error as “beyond the reach of the Rule.”  This ruling would appear to place limits on the cross examination of the subpoenaed witness to only the documents being offered in the case.

            The most interesting aspect of the Superior Court’s decision in Kopytin is the concurring opinion by Judge Richard Klein.  Judge Klein lists a number of problems with this Rule, which he summarizes, as follows:

            1.         Can plaintiff’s counsel withdraw the stipulation to limit damages prior to trial, and, if so, how soon before trial?  The Rule is silent on this.  Should the plaintiff have to show cause to withdraw the stipulation?

            2.         Possibilities after the defense subpoenas the doctor.  Once the defense subpoenas the doctor, should the plaintiff be allowed to conduct a direct examination of the doctor?  Under these circumstances, can the plaintiff withdraw his stipulation?  Additionally, who pays for the doctor’s testimony if the plaintiff conducts a direct examination?   If the plaintiff relies on the doctor’s report and the defendant cross examines the doctor, can the plaintiff conduct a re-direct examination?  The Rule is silent on this point. 

            3.         How and when is the fee the doctor will charge the defense determined?  If the defense subpoenas the doctor, the Rule states that “The party issuing the subpoena shall pay the reasonable fees and costs of the person subpoenaed to testify, including a reasonable expert witness fee.”   What if the doctor quotes a fee that the defense believes is unreasonable?  Who determines the reasonableness of the fee?  If the plaintiff elects to present the direct testimony of the doctor once subpoenaed, is the plaintiff responsible to pay for the doctor’s fee?  Or should there be some fee sharing arrangement between the plaintiff and the defendant?  Can the defense subpoena the doctor and tender just the standard witness fee?

            Judge Klein suggests that the Civil Procedural Rules Committee examine the Rule and address some of these questions.  Although each of these questions could be raised by cases on appeal, it would be better for the practice of law and the business of the courts to have these policy decisions made by the Pennsylvania Supreme Court upon recommendation by the Civil Procedural Rules Committee.

            In the case of Dolan v. Fissell, No. 239 EDA 2008, which was decided on May 1, 2009, Judge Klein answered some of his own questions.  The plaintiff in Dolan won at arbitration and the defendant appealed.  The plaintiff then elected to proceed under Rule 1311.1.  At a settlement conference, plaintiff’s counsel moved to withdraw the Rule 1311.1 Stipulation because he did not realize that an $8,200 property damage claim, which was being handled by separate counsel, would be charged against the $25,000 limit.

            The trial court granted plaintiff’s motion and a jury awarded the plaintiff $410,000 plus delay damages.  On appeal, the defense argued, inter alia, that the trial court abused its discretion in allowing the plaintiff to withdraw the Stipulation to proceed under the Rule.  Judge Klein noted that this was an issue of first impression.  Referring to the opinion of the trial judge6, it was noted that a judge has discretion to allow a stipulation to be withdrawn.  The trial judge also noted that unlike other stipulations, a Rule 1311.1 stipulation is in reality a unilateral decision made by the plaintiff that the defense does not have to agree to.  There is no bargain between the plaintiff and defendant.  While the Rule is silent on the withdrawal of the stipulation, neither does it prohibit it.

            Judge Klein wrote: 

Trial judges should have 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.

Finding good cause and no prejudice to the defendant, the decision of the trial court was affirmed.

1          The Rule became effective on September 1, 2003.

2          When originally adopted, the damage limit was $15,000.  The Rule was amended in 2006 to raise the damage limit to $25,000.  While the comment to this amendment indicates that this increase was in response to “the favorable reception to the rule”, it is generally believed that the increase was to discourage defense carriers with a $15,000/30,000 policy from appealing every case and being insulated by the Rule from any exposure to an excess verdict.

3          Rule 1311.1(a) says, “The plaintiff may stipulate to $25,000.00 as the maximum amount of damages recoverable...”  A stipulation is an agreement of counsel on behalf of their clients, and when filed with the Court, requires the signature of all counsel.  This Rule’s “stipulation”, however, is initiated, signed and filed only by the plaintiff’s attorney and, hence, is not a true stipulation.  A more descriptive word for subsection (a) would be “election”.

4          at 961 A.2d 856, 2008 Pa. Lexis 2341.

5          The doctor was under indictment for allegedly engaging in fraudulent billing practices.

6          The Honorable Edward Griffith of the Court of Common Pleas of Chester County, Pennsylvania.

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