J-A32007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS CARL IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
GREGORY R. NOONAN AND WALFISH AND NOONAN, LLC
Appellee No. 2255 EDA 2013
Appeal from the Order July 2, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 2011 No. 4922
BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 24, 2015
Appellant, Thomas Carl, appeals from the order granting summary
judgment entered on July 2, 2013. After careful review, we reverse and
remand.
As we write primarily for the parties, we set forth only so much of the
factual and procedural history of this case as is necessary for our decision.
Carl retained Appellee, Gregory R. Noonan, a partner at Walfish and Noonan,
LLC, to file a federal employment discrimination claim. After reviewing his
claim, the Equal Employment Opportunity Commission (“EEOC”) mailed
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A32007-14
“right to sue” notices to Carl and Noonan. Unfortunately, the address used
for Carl was incorrect, and only Noonan received the letter.
Noonan never advised Carl of his receipt of the EEOC notice. No
complaint was filed on behalf of Carl against his employer within the
applicable limitations period. Carl did file such a suit subsequently, but it
was dismissed as untimely.
Carl subsequently filed the instant legal malpractice action against
Noonan and his firm. Carl notified Noonan of his intent to depose the
attorney, John McAuliffe, Esq., that had filed his ill-fated employment
discrimination suit. In the notice, Carl indicated that Noonan was an expert
witness. Noonan did not appear or send a representative to the deposition.
Two days after the deposition, Carl notified Noonan that Attorney McAuliffe’s
testimony would be used as expert testimony in the case, and that the
deposition contained all relevant information.
Over a year later, on the eve of trial, Noonan filed a motion in limine
and a motion for summary judgment seeking, respectively, preclusion of
Attorney McAuliffe as an expert witness and dismissal of Carl’s case. Carl
was not provided an opportunity to file written answers to these motions,
and following oral argument, the trial court granted both motions and
dismissed Carl’s complaint. This timely appeal followed.
On appeal, Carl argues that the trial court erred in granting the
motions filed by Noonan. The trial judge who granted the motions retired
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shortly thereafter, and we do not have the benefit of his reasoning on
appeal. In his stead, the Honorable Lisa M. Rau has filed an opinion,
concluding that the orders are not legally supported, and requesting this
Court to reverse and remand.
We review a challenge to the entry of summary judgment as follows.
[We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted).
After reviewing the certified record and Appellant’s brief,1 we agree
with Judge Rau. We therefore reverse and remand on the basis of Judge
Rau’s comprehensive and thorough analysis in her opinion submitted to this
Court. See Trial Court Opinion, 7/22/14, at 1-17. ____________________________________________
1 Appellees have not filed a brief with this Court.
-3- J-A32007-14
Order reversed. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/24/2015
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COURT or COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION P‘.4
THOMAS CARL, •
Appellant, JANUARY TERM, 201,1 NO. 04922 V.
GREGORY R. NOONAN and WALFISH AND NOONAN, LLC, • 2255 EDA 2013
Appellee, Carl Vs Noonan Etal-OPFLD RAU, J./
OPINION 1110111191j10111111 1111111 I. INTRODUCTION
Plaintiff-Appellant Thomas Carl appeals the grant of summary judgment in
this legal-malpractice action where on the day of the scheduled trial the trial judge
precluded Plaintiff-Appellants expert evidence based on Defendants-Appellees'
assertion that they had never been properly noticed of Plaintiff-Appellants expert
witness, nor received the expert's report or qualifications, Plaintiff-Appellant
Thomas Carl filed a Complaint against Defendants-Appellees Gregory R. Noonan2
1 Judge Gary DMto was the trial judge in this case, The appeal was filed on July 29, 2013, Judge DiVito retired from this Court in early 2014 prior to writing an opinion in this case. To assist the Superior Court in its review, it fell to this judge to submit an opinion in Judge DMto's stead by reviewing the facts in the record and the law. This judge is obviously limited to some degree in knowing precisely Judge DiVito's mental impressions or reasoning when he made his decisions so in that regard this opinion is necessarily incomplete, 2 Appellee Noonan was arrested on drug charges in December 2013. Carolyn Davis, Nlontco Lawyer Waives Preliminary Hearing on Drug Charges, PHILLY.COM, http://articles.philly.com/2014- 01-05/news/45862144_1_preliminary-hearing-drug-charges-district-judge-margaret-hunsicker (last visited Mar. 26, 2014). Appellee Noonan pled guilty in state court on April 7, 2014, to selling oxycodone, criminal use of a communication facility, and dealing in the proceeds of illegal activity. Com. v. Noonan, CP-46-CR-0000130-2014. See also Carolyn Davis, Noonan Pleads Guilty to Selling Oxycodone, PI-11LLY,COM, http://articies,philly.com/2014-0409/news/46974618_1_
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and Walfish and Noonan, LLC (hereinafter "Appellee Noonan"), alleging
professional negligence and breach of contract in connection with their agreement
to represent him in his federal employment-discrimination and other related claims
against his former employer. His federal claims were dismissed as being time-
barred,
Shortly before jury selection in this legal malpractice action, alleging claims
of negligence and breach of contract, Appellee Noonan submitted a combined
motion in limine and motion for summary judgment, arguing that Appellant Carl
could not make out a prima facie case of legal malpractice because he lacked
expert evidence. The trial judge precluded Appellant Carl's use of expert
testimony, even though Appellant Carl did have expert evidence in the form of
deposition testimony and had notified Appellee Noonan of it. Appellant Carl filed
this appeal, contending that the trial court erred by precluding his expert evidence,
by considering the motion after the deadline, and by not allowing a response to the
motion. The trial judge who handled this matter retired from the bench prior to
writing an opinion so it has fallen to this judge to write an opinion in his stead,
Although Appellant Carl proffered his expert testimony in a nontraditional
manner, it nonetheless did rneet legal requirements and summary judgment
should not have been granted against him. Accordingly, this judge recommends
oxycodone-carpenter-gregory-noonan (last visited May 30, 2014). Appeilee Noonan has also been disbarred. Carolyn Davis, Montco:s Gregory Noonan Religns from the Bar, PHILLY,COM, http://www.philly.corn/philly/news/local(20140307_Montco_s_Gregory_Noonan_resigns_from_the_ bar.html (last visited Apr. 1, 2014), He subrnitted his statement of resignation from the bar on January 10, 2014, asserting that his resignation stemmed both from the criminal drug trafficking charges he faced and from his having dishonestly attempted to defraud a compensation carrier of its third-party subrogation lien. The Supreme Court of Pennsylvania accepted the resignation and disbarred hirn on rebruary 27, 2014, See Order of reb, 27, 2014, Office of Disciplinary Counsel v. Noonan, No. 140 DB 2013, available at httplivwpacourts,us/assets/ opinionst DisciptinaryBoard/out/140DB2013-Noonan.pdf(last visited Apr, 1, 2014),
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that the Superior Court remand this case for a trial on the merits.
11. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Thomas Carl, who is of Irish descent, retained Appellee Noonan
to represent him in a lawsuit against his former employer, Western-Southern Life
Insurance Company,for discrimination "based on religion, national origin,
disability, ancestry, and ethnicitr in violation of the Civil Rights Act of 1964 and
other laws. (Compl. ¶ 2,); Carl v. W.-S. Life Ins, Co., 2010 WL 3860432 at n,1, *2
(E.D. Pa. Sept. 30,2010). Appellant Carl alleged that in his sales representative
position, he was discriminated against and harassed by his supervisor until he was
constructively discharged. Id, at *1, The federal court dismissed all claims for
failure to state a claim upon which relief could be granted, in part because the
claims were time-barred. Id. at *1, *5.
Appellant Carl then brought this legal malpractice case against Appellee
Noonan. Appellant Carl alleged that the Equal Employment Opportunity
Commission (EEOC)did not mail him his "right to sue letter at his correct
address, and thus he did not receive his "right to sue" letter, but that Appellee
Noonan did receive the letter at the firrn's address, (Compl.'DT 4-6.) Appellant
Carl alleged that Appellee Noonan failed to notify him when he received a "right to
sue" letter in the employment-discrimination action and failed to file a timely
complaint in federal court on his behalf. Appellant Carl alleged that Appellee
Noonan's errors led to his claims being time-barred. (Comp!. ¶¶ 7-8)
Appellees Gregory R. Noonan and his firm, Walfish and Noonan, LLC, did
not have professional liability insurance, and thus represented themselves
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throughout the course of this case, Appellee Noonan was not disbarred until after
the trial judge dismissed the claims against him and his firm.
During discovery in this case, Appellant Carl served Appellee Noonan with
a Notice of Oral Deposition of John McAuliffe, Jr., Esq., an attorney who was to be
Appellant Carl's expert witness, to take place on March 13, 2012,3 stating:
"The scope and purpose of this deposition is to substantially aid the Plaintiff in the preparation and trial of this case as provided for in the Rules and to perpetuate the testimony of any aged infirm or going [sic) witness, party, physician, expert or records which may in the future be destroyed or otherwise unavailable."
(See letter, Court Ex. A.) Appellee Noonan did not appear at the deposition nor
did he send any counsel in his stead. (Mot. Tr. vol. 1 14:7-8, Jul, 2, 2013.) (See
transcript, Court Ex, B,) Appellant Carl advised Appellee Noonan in a letter dated
March 15, 2012, two days after the deposition, that Mr. McAuliffe's testimony
would be used as Appellant's expert testimony: "Be advised that the testimony
provided by Mr, McAuliffe will be used as our expert testirnony in this case and his
qualifications are set forth in that deposition." (See letter, Court Ex, G.) Appellee
Noonan acknowledged receiving that letter, (Court Ex. B; Mot, Tr. vol, 1 17:22-
18:2.) At deposition, Mr. McAuliffe testified to his experience as an attorney and
specifically to his familiarity with federal discrimination law. (P1. Mot. for Recons,
Ex, B, McAuliffe Dep. 5;94:2, Mar. 13, 2012.) (See deposition, Court Ex. D.) Mr.
McAuliffe further testified that Appellee Noonan's failure to advise Appellant Carl of
the EEOC's decision fell below the standard of care for an attorney, and also that
his failure to file a state administrative claim on Appellant Carl's behalf fell below
3 The Notice says "2010," apparently in error, but the letter that introduces it, sent in January 2012, says "2012,"
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the standard of care. (Court Ex. D; Pl. Mot. for Recons. Ex, B, McAuliffe Dep,
7:11-20, Mar, 13, 2012.) Mr. McAuliffe testified that Appellant Carl could have
been successful on the substance of his discrimination claims but for the statute of
limitations bar that Appellee Noonan caused, (Court Ex. D; Pl. Mot. for Recons,
Ex, B, McAuliffe Dep. 8:18-10:1, Mar, 13, 2012.)
Over a year passed after the deposition and Appellant Carl's notice to
Appellee Noonan of his plans to use Mr. McAuliffe as his expert. Then, on June
27, 2013, five days before jury selection was set to take place, Appellee Noonan
filed a combined motion in limine and motion for summary judgment arguing that
Appellant Carl did not submit either the curriculum vitae of Mr. McAuliffe or his
expert report, in conflict with the Case Management Order("CMO”), which called
for Appellant Carl to submit those to the defense no later than September 4, 2012.
(See CMO, Court Ex. E.) The same CMO called for all pretrial motions to be filed
no later than October 1, 2012,4 Appellee Noonan's motion also stated that Mr.
McAuliffe served as Appellant Carl's attorney in his federal employment
discrimination action and argued that because Mr. McAuliffe was previously
Appellant Carl's attorney, he was biased because he would try to protect himself.
The trial judge scheduled oral argument on July 2, 2013, the day that trial
was scheduled to begin. Appellee Noonan argued that Mr. McAuliffe was
identified only as a fact witness,(Court Ex, B; Mot, Tr. vol, 1 13;23-24, Jul. 2,
2013), that Mr, McAuliffe was identified as an expert only months after the
deposition (Court Ex. 13; Mot. Tr, vol. 1 14:8-10, Jul, 2, 2013), that Appellee
4 The Court also issued a pretrial Order on January 7, 2013, in which it stated that motions in limine were to be flied no later than thirty days before jury selection. Appellee Noonan's motion in lirnine was filed beyond that deadline as well. (See Order, Court Ex. F.)
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Noonan never received his curriculum vitae or expert report (Court Ex. B; Mot. Tr.
vol. 1 14:10-12, Jul, 2, 2013), that Mr. McAuliffe would not be present at trial and
so there would be no opportunity to cross-examine him (Court Ex. B; Mot, Tr. vol.
1 14:12-13; 20-21, Jul. 2, 2013), and that the defense never knew Mr. McAuliffe
would be used as an expert(Court Ex, B; Mot. Tr. vol. 1 14:14-17, Jul, 2, 2013),
Appellant Carl argued that he had given notice that Mr, McAuliffe would
serve as his expert and that the deposition transcript served as the report and
description of qualifications. (Court Ex, B; Mot. Tr. vol. 1 21:9-12, Jul. 2, 2013.)
Appellee Noonan acknowledged during oral argument on July 2, 2013 that the
March 15, 2012, letter, sent nearly 16 months earlier, made him "aware" that
Appellant was "going to use Mr. McAuliffe as their expert witness for malpractice"
in the case, (Court Ex. B; Mot, Tr. vol, 1 17:22-18:2) Appellant Carl wrote in the
letter that Mr. McAuliffe's qualifications and testimony had been covered in the
deposition that Appellee Noonan had been notified about and chosen not to
attend. (See letter, Court Ex. C.) Mr. McAuliffe's deposition had been attached to
the settlement conference memorandum that named Mr. McAuliffe as "plaintiffs
expert." (See Plaintiffs Settlement Conference Memorandum, Court Ex. G.)
At oral argument, the trial judge observed Mr, McAuliffe's absence from the
courtroom, Appellant Carl's counsel explained that Mr. McAuliffe could not attend
on the day of trial because of life-threatening heart problems and stated that he
had forwarded a letter from Mr. McAuliffe's physician to defense counsel to that
effect the previous week, on June 25, 2013, (Court Ex. B; Mot, Tr. vol, 1 22:5-20,
Jul, 2, 2013.) The trial judge said he also had a physical copy of the doctor's
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letter. (Court Ex. B; Mot. Tr. vol. 1 22:15-16, Jul, 2, 2013.)
Nevertheless, the trial judge granted Appellee Noonan's motion that had
asserted that they had never been properly noticed of Appellant Carl's expert
witness nor received the expert's report or qualifications. With Appellant Carl's
expert precluded, the case was dismissed. The same day, Appellant Carl filed a
written rnotion for reconsideration of his experts preclusion. The motion was
denied.
Appellant Carl appealed. Appellant Carl itemized seven matters
complained of on appeal in his 1925(b) statement, which are summarized as
follows;
(1) The Court erred in granting the rnotion precluding the expert as there was no legal basis because Appellant complied with the rules regarding disclosure of experts (items 3 and 6);
(2) the Court erred in considering the motion that was filed late and in violation of the CMO's deadlines (Items 1 and 5);
(3) the Court erred in failing to allow Appellant Carl to answer the rnotion (Items 2 and 4); and
(4) the "Court erred, if grant of the motions was based upon the content of the depositions, since defendants, by not lodging objections to questions at the depositions, waived any objection to the form of the question"(Item 7).
In February 2014, this judge ordered briefs from both sides since she had
not been the trial judge and wanted to give the parties the opportunity to focus her
attention on specific appellate issues and explain any relevant facts or procedural
history, The parties accordingly briefed the issues.
III. LEGAL DISCUSSION
The Superior Court has outlined its standard of review of a grant of
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surnmary judgment:
"When reviewing a grant of a rnotion for summary judgment, our review is plenary. We will not disturb the trial courts order absent an error of law or abuse of discretion. Where there Is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered, Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party."
Long v, Ostroff, 854 A.2d 524, 527-28(Pa. Super. Ct. 2004)(internal citations and
quotations omitted).
A. Expert Evidence
Appellee Noonan claimed summary judgment should be granted because
Appellant Carl lacked expert evidence, having not timely identified Mr, McAuliffe as
an expert witness or provided the written curriculum vitae and a report of Mr.
McAuliffe. Fie also argued that Mr. McAuliffe would be biased because he served
as Appellant Carl's counsel after Appellee Noonan.
In a case that presented strikingly similar circumstances, the Superior Court
held that notice of the kind provided in this case, and the use of a deposition as an
expert report, are indeed sufficient, Jistarri v. Nappi, 549 A.2d 210, 217(Pa.
Super, Ct, 1988). In Jistarri, the Superior Court discussed Rule 4003,5s
provisions governing discovery of expert testimony:
"Rule 4003,5 provides that a party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to have the expert state, either in answers to the interrogatories or in a separate report, the substance of the facts and opinions to which he or she is expected to testify and a summary of the grounds for each opinion." Id. at 217 (Pa. Super. Ct. 1988). In this case, the record does not show that
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Appellee Noonan ever sought identification of experts through interrogatories,
although the Case Management Order(CNIO) did impose a deadline by which
Appellant Carl had to identify, and submit curriculum vitae and expert reports of, all
expert witnesses who were meant to testify at trial.
Appellant Carl did identify the expert witness, both in the notice of
deposition that mentioned expert evidence and in the letter sent to Appellee
Noonan two days after the deposition—rnonths before the CMO deadline, and
over a year before Appellee Noonan's motion, In the letter, Appellant Carl advised
that the deposition, a transcript of which Appellee Noonan was free to obtain,
contained Mr. McAuliffe's qualifications and expert evidence—in other words, the
substance of a curriculum vitae and expert report, as called for by the CMO.
Appellee Noonan acknowledged receiving this letter. (Court Ex. B; Mot. Tr, vol. 1
17:22-18:2.) Mr. McAuliffe was also named as an expert in Plaintiffs Settlement
Conference Memorandum.
Similarly, in Jistarri, although "the notification procedure ... was hardly
ideal," defendants were not denied notice that the person in question would be
called as an expert witness, Id. In Jistarri, plaintiffs counsel informed defendant's
counsel by letter almost five months prior to trial that a doctor would be offered as
an expert witness "and that his opinion testimony would be that which was
contained in his deposition," Id. In this case, Appellee Noonan was on notice that
Mr. McAuliffe would be Appellant Carl's expert witness for over a year before trial.
The Superior Court in Jistarri explained its reasoning in light of the purpose
of the rule on discovery of expert testimony:
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"The purpose of Rule 4003.5 is to prevent the unfairness that would occur if one party were unable to counter the expertise of a surprise witness produced at the last minute by the opposing party. The notice provided by appellant in the present case was sufficient to allow appellees to counter the opinion testimony, in whatever form it might be offered, of Dr. Codario."
Id. (internal citation omitted). Here, similarly, there was no surprise. Appellant
Carl did not offer the expert at the last minute, and there would have been no
unfairness to Appellee Noonan.
Since deciding Jistarri, the Superior Court has provided more guidance as
to what would constitute unfair surprise, "Adequate notice to the defendants was
not given where plaintiffs counsel waited until the day trial commenced to furnish
counsel for the defendants a written copy of the expert's report. We have held that
the giving of five months notice that a person will be called as an expert is
adequate." Freeman v. Maple Point, Inc., 574 A.2d 684,689(Pa, Super. Ct. 1990)
(citing Jistarri, 549 A.2d at 217). Thus, the Superior Court has clearly held that the
notice of expert testimony provided in Jistani—almost identical to the notice
provided in this case, in the form of a letter sent long before trial that said that the
deposition Itself would serve in lieu of a formal report—did not fail to comport with
the rules and was sufficient.
Rule 4003.5 provides for fairness and the prevention of last-minute
surprise. In this case, the only thing that occurred at the last minute was Appellee
Noonan's untimely motion for summary judgment claiming lack of notice of the
expert. Appellee Noonan admitted he was aware that Appellant Carl had identified
Mr. McAuliffe as his expert over a year before trial yet he never objected until he
filed his combined motion for summary judgment and motion in limine just five
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days before trial,
As the Supreme Court of Pennsylvania has explained:
Abuse of discretion is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that appellate court is of opinion that there was commission of an error of law by the trial court, It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment—one is that clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law." Com. v. Powell, 590 A.2d 1240, 1244 n.8 (Pa, 1991)(quoting Black's Law
Dictionary (5th Ed. 1979)). Dismissal of this case was inconsistent with Jistarri
and Freeman, and so the case should be remanded for trial on the merits.
Furthermore, this case was dismissed on the grounds that Appellant Carl
failed to conform to discovery rules for expert evidence. But Appellant Carl did
comply with the rules, albeit in a nontraditional way. When dismissal occurs owing
to a discovery violation, it should occur only in rare, severe circumstances.
Pennsylvania Rule of Civil Procedure 4019 allows for dismissal as a discovery
sanction, Stewart v. Rossi, 681 A.2d 214, 217(Pa. Super. Ct. 1996). "However,
since dismissal is the most severe sanction, it should be imposed only in extreme
circumstances, and a trial court is required to balance the equities carefully and
dismiss only where the violation of the discovery rules is willful and the opposing
party has been prejudiced," Id.
Appellee Noonan also argued summary judgment should be granted due to
Mr. McAuliffe's purported bias. But any bias would affect only the weight of his
testimony, not its admissibility "The test to be applied when qualifying an expert
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witness is whether the witness has any reasonable pretension to specialized
knowledge on the subject under investigation. If he does, he may testify and the
weight to be given to such testimony is for the trier of fact to determine," Miller v.
Brass Rail Tavern, Inc., 664 A.2d 525, 528(Pa, 1995)(emphasis in original).
During oral argument but not in his written motion, Appellee Noonan also
claimed summary judgment should be granted because Mr. McAuliffe was absent
from the courtroom on the day of trial, Mr. McAuliffe was absent from the
courtroom for apparent medical reasons supported by a physician's letter.
Although It is unknown whether this last-minute argument about Mr. McAuliffe's
unavailability on the day of trial played any role in the trial judge's decision to grant
summary judgment, the rules require a hearing to determine if deposition
testimony can substitute for the unavailable witness rather than excluding the
witness testimony. Pa.R.C.P. 4020(a)(3)(c); Pa,R.E, 804(b)(1). Alternatively, the
trial judge could have continued the trial until Mr. McAuliffe was medically able to
testify. Consequently, if the Court's dismissal of the action was on this basis, it
was inappropriate.
If a court finds "that the witness is unable to attend or testify because of ...
sickness," deposition testimony can be substituted for in-person testimony.
Evidence rules permit prior deposition testimony to be used where the witness is
unavailable for trial "if the party against whom the testimony is now offered . .. had
an adequate opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination," Pa.R.E. 804(b)(1). In this case, Appellee Noonan
received notice of Mr. McAuliffe's deposition but chose not to attend, did not lodge
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any objections between the time the deposition was taken and the deadline for
pretrial motions even after Appellant Carl notified him that he would use it as expert
testimony, and waited until just five days before trial to object in the form of the
motion.
There is striking factual similarity between this case and a case the
Superior Court recently decided, Jones v. Mercy Suburban Hospital (1214 EDA
2013)(Jan. 31, 2014)(unpublished opinion, not binding precedent but persuasive
authority, see Super, Ct. LOP.65.37). In a unanimous opinion, the Superior
Court held that the trial court abused its discretion in its "decision to dismiss this
case on a technicality[J plac[ing] justice second to arbitrary compliance with
procedural rules." Jones at 9. In Jones, the trial court dismissed the case on the
eve of trial when, owing to a medical emergency, plaintiff could not proceed with
trial, her experts were unavailable, and she timely requested a continuance. Id. at
5. The Superior Court observed that while delay can be costly, it is 'not a reason
to deprive either party of its day in court." Id. at 8. Here, similarly, the action was
dismissed when a medical emergency prevented Appellant Carl's expert from
appearing at trial. Instead of holding a hearing to determine Mr. McAuliffe's
availability and the propriety of reading his deposition into the record or in the
alternative granting a continuance, the trial judge disrnissed the case. For the
reasons given, the equities did not support this severe result of dismissal. Stewart
v. Rossi, 681 A.2d 214, 217 (Pa. Super. Ct. 1996).
B. Case Management Deadlines
The CMO called for pretrial Motions to be filed no later than October 1,
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2012, The Court's Order of January 7, 2013, called for motions in limine to be filed
no later than 30 days before jury selection. Although Appellant Carl had timely
notified Appellee Noonan of his intention to use Mr. McAuliffe as his expert and
provided his report and credentials through his deposition, Appellee Noonan filed
his combined motion in limine and summary judgment motion late. ("Defendants'
(A) Motion in Limine to Limit (i) the Introduction of Any Expert Opinion Evidence,
(ii) the Introduction of Any Testimony of John McAuliffe, Esquire, Factual or
Otherwise, and (B) Motion for Summary Judgment.") In other words, Appellee
Noonan's motion, which argued that Appellant Carl had missed deadlines, was
itself filed far beyond Court-ordered deadlines. Appellee Noonan filed his motion
just a few days before trial, on June 27, 2013, well after the 30-day deadline. The
late motion sought summary judgment because, Appellee Noonan argued,
Appellant Carl could not prove his case without Mr. McAuliffe's expert evidence,
which he argued should be excluded.
In considering late filings "there must be no showing of prejudice as a result
of the failure to comply strictly with the rules, and second, there must be a showing
of good cause." White v. Owens-Corning Fibergjas, Corp., 668 A.2d 136, 141 (Pa.
Super. Ct. 1995). In White, it was held not to be error on the trial court's part to
consider a motion for summary judgment late (after the commencement of trial),
because there was good cause and no prejudice resulted, Id. at 141-42,
In this case, by contrast, Appellee Noonan showed no cause for failing to
file the motion for summary judgment on time, let alone good cause. Appellee
Noonan sought to disguise the motion for summary judgment as a motion in
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lirnine, to sidestep its being filed too late. However, the title of the motion itself
concedes that it is a "motion for summary judgment," and one filed almost nine
months after deadline, Besides, even if the motion had been a motion in limine it
was also late. The Court's January 7, 2013, Pretrial Order required motions in
limine to be filed no later than 30 days before jury selection and it was filed 5 days
before the date-certain trial date.
Appellee Noonan was aware for over a year before trial that Mr. McAuliffe
was slated to provide expert evidence, and that his deposition served as his expert
report. Appellee Noonan provided no reasons that would amount to just cause
why he waited until just five days before trial to try to disqualify Mr. McAuliffe from
providing such evidence. Furthermore, Appellant Carl suffered the greatest
prejudice a litigant can experience: his case was not heard on the merits, The law
requires that the rules for case-management deadlines be strictly followed except
where there is good cause for, and an absence of prejudice in, construing them
more leniently. Here, there was no good cause for Appellee Noonan's late filing of
the motion, and severe prejudice resulted to Appellant Carl, Thus, considering
Appellee's late-filed motion with such prejudicial consequences to Appellant Carl
was not in accordance with the law,
C. Lack of Opportunity to Respond
Appellant Carl says that the trial judge erred in deciding Appellee Noonan's
motion "without providing an opportunity for plaintiff to file answers thereto," and by
failing to allow Appellant "to file answers as was contained in his Motion for
Reconsideration." Appellant Carl is correct: had Appellant Carl been aliowed to
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file a written answer to Appellee Noonan's motion, he could have shown the trial
judge that although he had provided notice of his expert and made available his
qualifications and testimony in an atypical way, it was nonetheless sufficient under
the law. Jistarri v. Nappi, 549 A.2d 210(Pa, Super. Ct. 1988).
D. Waiver of Objections Related to Deposition
Finally, Appellant Carl says the trial judge committed error "if grant of the
rnotions was based upon the content of the depositions, since defendants, by not
lodging objections to questions at said depositions, waived any objection to the
form of the question." Any objections to the notice, procedures or questions at the
deposition were not made during or shortly after the deposition and were waived
long ago. Pa.R,C,P, 4016 & 4017. Here, besides being noticed ahead of the
deposition, Appellee Noonan has acknowledged being informed by letter shortly
after the deposition of Appellant Carl's intention to use Mr, McAuliffe as an expert.
He also acknowledged that the letter communicated Appellant Carl's intention to
use the deposition as the expert report and curriculum vitae. Appellee Noonan
chose not to object to Mr. McAuliffe's serving as an expert "soon" after this clear
notice, instead waiting over a year.
To the extent that there is any issue about the questions asked of Mr.
McAuliffe at his deposition or anything else that occurred relating to the deposition,
Appellee Noonan waived any objection because he was properly noticed of the
deposition but chose neither to attend nor to object to any questions asked.
Pa.R,C.P. 4016 & 4017; Pa.R.E.. 804(b)(1).
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IV. CONCLUSION
Appellant Carl's action was dismissed because the trial judge concluded, as
argued in Appellee Noonan's motion, that Appellant Carl had provided inadequate
notice of the expert evidence he intended to put forward at trial and failed to supply
the expert's curriculum vitae and report. The Superior Court has held that notice
essentially identical to the notice provided in this case—a letter, months before
trial, declaring that the deposition testimony would serve as the expert's report—is
adequate. ,Pstarri v. Nappi, 549 A.2d 210(Pa. Super. Ct. 1988). Because
Appellant Carl complied with the law in providing sufficient notice of Mr. McAuliffe's
serving as an expert witness and his report and qualifications being available
through his deposition testimony, the law required that Appellant be permitted to
have Mr. McAuliffe serve as his expert witness. Dismissing the case therefore did
not comport with the law. This Court consequently recommends that the grant of
summary judgment be reversed and this action remanded for a trial on the merits.
BY THE COURT:
Lisa M. Rau, J.
Dated: July 22, 2014
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