Ford-Bey, W. v. Professional Anesthesia Services

2020 Pa. Super. 42, 229 A.3d 984
CourtSuperior Court of Pennsylvania
DecidedFebruary 20, 2020
Docket677 EDA 2019
StatusPublished
Cited by15 cases

This text of 2020 Pa. Super. 42 (Ford-Bey, W. v. Professional Anesthesia Services) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford-Bey, W. v. Professional Anesthesia Services, 2020 Pa. Super. 42, 229 A.3d 984 (Pa. Ct. App. 2020).

Opinion

J-A21033-19

2020 PA Super 42

WAKEEM FORD-BEY, : IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA OF WANETTA FORD-BEY : : : v. : : : PROFESSIONAL ANESTHESIA : No. 677 EDA 2019 SERVICES OF NORTH AMERICA, : LLC; JOEL D. SOKOLOFF, M.D.; : THOMAS MADDALONI, CRNA; : SCOTT WILSON, CRNA ; PHYSICIANS : CARE SURGICAL HOSPITAL, LP : : : APPEAL OF: THOMAS MADDALONI, : CRNA :

Appeal from the Order Entered January 14, 2019 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2017-02996

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.: FILED FEBRUARY 20, 2020

Thomas Maddaloni, CRNA1 appeals from the January 14, 2019 order2

compelling him to produce his handwritten notes that he claims are protected

from disclosure by the attorney-client and work-product privileges. The trial

____________________________________________

1 The designation “CRNA” signifies Certified Registered Nurse Anesthetist.

2 Mr. Maddaloni purports to appeal from the December 12, 2018 order compelling production and overruling claims of privilege. The appeal properly lies from the January 14, 2019 order, which, following reconsideration, re- confirmed the December 12, 2018 order. We have amended the caption accordingly. J-A21033-19

court found that Mr. Maddaloni had not satisfied the four elements necessary

to successfully invoke the attorney-client privilege. Additionally, the court

found that Mr. Maddaloni failed to make the showing necessary for application

of the work-product privilege, i.e., that his notes contained his counsel’s

mental impressions or strategy. After careful review, we affirm.

The facts giving rise to the legal action are as follows. Wanetta Ford-

Bey (“Decedent”) underwent surgery at Physician’s Care Surgical Center

(“Surgical Center”) on June 12, 2015. She died shortly thereafter of

respiratory failure. Wakeem Ford-Bey, the Administrator of Decedent’s estate

(“Administrator”) commenced this medical malpractice action against

Professional Anesthesia Services of North America, LLC, Joel D. Sokoloff, M.D.,

Mr. Maddaloni, Scott Wilson, CRNA, and the Surgical Center on February 13,

2017.

During the course of discovery, a dispute arose that is the subject of the

instant appeal. At Mr. Maddaloni’s discovery deposition, the following

exchange took place:

Q: When you reviewed the chart in preparation for your deposition, did you have it printed out like it is in front of you?

A: Yes.

Q: Okay. Did you take any notes while you were reviewing it?

A: No, I did not.

Q: Did you write anything on your copy of the chart?

A: I believe I did.

-2- J-A21033-19

Q: And was that to assist you in your review?

Q: And did you write those notes at home? Or wherever you were reviewing the chart, did you write those notes?

Q: Okay. And where is your copy of the chart?

A: It’s at my home.

Q: If you didn’t have the chart, would you be able to remember the specifics of each and every aspect of the treatment that was provided to Mrs. Ford-Bey on June 12th?

A: No.

Maddaloni Deposition, 2/1/18, at 27-28. Administrator’s counsel asked for a

copy of the annotated record, but Mr. Maddaloni’s counsel objected, asserting

attorney-client and work-product privileges.

On March 5, 2018, Administrator served supplemental interrogatories

and requests for production directed to Mr. Maddaloni for “a copy of the . . .

chart in the possession of [Mr. Maddaloni], which includes all notes, typed or

handwritten, prepared by [him] prior to and in preparation of [his] February

1, 2018 deposition.” Supplemental Interrogatories and Requests for

Production, 3/5/18, at ¶2. The request expressly excluded “references to

mental impressions, conclusions, opinions, memoranda, notes or summaries,

legal research or legal theories of [Mr. Maddaloni]’s attorney and mental

impressions, conclusions or opinions respecting the value or merit of the claim

or defense or respecting strategy or tactics of [Mr. Maddaloni]’s

-3- J-A21033-19

representative.” Id. Mr. Maddaloni objected to the request on the ground

that “it seeks information prepared in anticipation of and during the course of

litigation, protected by attorney-client privilege and/or the attorney work

product doctrine, and beyond the bounds of permissible discovery under

Pa.R.C.P. 4003.3.” See Answer to Plaintiff’s Supplemental Interrogatories and

Request for Production of Documents, 8/8/18, at ¶2.

Administrator filed a motion to compel, which Mr. Maddaloni opposed,

and the matter was heard by the discovery master. The trial court, based on

the recommendation of the master, entered an order on December 12, 2018,

directing Mr. Maddaloni to produce the annotated chart within twenty days,

and overruled his objections based on privilege.

Mr. Maddaloni filed a motion for reconsideration, which the trial court

granted. Oral argument took place on January 10, 2019. Counsel for Mr.

Maddaloni represented that his client made the notes “at the direction of or

on the advice of counsel,” but acknowledged that this fact was not in the

record. N.T. Motion for Reconsideration, 1/10/19, at 13-14. When asked by

the court if counsel was relying on “any facts of that nature,” or simply relying

upon the deposition and other record facts, counsel indicated that they were

relying upon the deposition and record. Id. at 14.

Administrator argued that, since there was no evidence that the

handwritten notes were made at counsel’s request, in his presence, or for

purposes of obtaining counsel’s advice, “the attorney-client privilege has not

been made out.” Id. at 23. Mr. Maddaloni offered to provide a supplement if

-4- J-A21033-19

the court needed it, but steadfastly maintained that the decision could be

made on the record as it stood because Administrator, the party seeking the

discovery, had not developed a record that would compel production. Id. at

24.

By order of January 14, 2019, the court re-confirmed its December order

directing that the copy of the chart bearing Mr. Maddaloni’s handwritten notes

be produced within seven days of the docketing of the order. Mr. Maddaloni

did not comply. Instead, nine days after the order was docketed, Mr.

Maddaloni filed a motion seeking to supplement the record with his affidavit

dated January 18, 2019. The court denied the motion by order of January 30,

2019.3

Mr. Maddaloni filed a notice of appeal to this Court on February 12,

2019,4 and complied with the court’s order to file a Pa.R.A.P. 1925(b) concise ____________________________________________

3 In the proffered affidavit, Mr. Maddaloni stated that some of the notes were

made while meeting with counsel, others while he reviewed the chart to prepare his defense. Affidavit of Thomas Maddaloni, 1/18/19, at 1. He represented further that all handwritten notes were made with the express intention to communicate information to his attorney for purposes of securing legal assistance, and he did not share the notes with any third persons.

4 Mr. Maddaloni relies upon Pa.R.A.P. 313 and the collateral order doctrine as

the basis for our jurisdiction to entertain this interlocutory appeal. As this Court recently reaffirmed in Farrell v. Regola, 150 A.3d 87, 95 (Pa.Super.

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2020 Pa. Super. 42 (Superior Court of Pennsylvania, 2020)

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2020 Pa. Super. 42, 229 A.3d 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-bey-w-v-professional-anesthesia-services-pasuperct-2020.