Where Ignorance Is Not Bliss: Appellate Procedure, DD 06/06

Defense Digest

Pennsylvania - Appellate Advocacy
Where Ignorance Is Not Bliss:  Appellate Procedure

Introduction

The recent Pennsylvania Superior Court panel opinion in Lineberger v. Wyeth f/k/a American Home Products Corp., 2006 PA Super 35, 2006 Pa. Super. LEXIS 133 (2/23/06), underscores that, especially when the case might be at stake, clients and trial counsel should engage the services of appellate counsel as soon as possible. The case demonstrates the dangers posed by some appellate judges' penchant to find waiver, perhaps where waiver should not be found.

The Lineberger Case

Lineberger involved a failure to warn claim against a pharmaceuticals manufacturer regarding the risks posed by the "fen-phen" prescription diet drug combination. The plaintiff claimed that her doctor would not have given her the prescription had the manufacturer provided certain warnings either in the physician's information label or insert that came with the drug samples or in the Physicians' Desk Reference ("PDR"). In addition, the plaintiff claimed that the manufacturer's salespersons minimized the dangers of the drug combination to the doctor.

After discovery, the manufacturer filed a motion for summary judgment. Asserting that the plaintiff could not establish the causation element of her case, the manufacturer's motion showed that the prescribing doctor testified in his deposition that he likely would have prescribed the medication to the plaintiff, even if the allegedly missing warning had been included on the label or in the PDR, and that he had no recollection of any conversation with the salespersons.

The trial court granted the motion for summary judgment, and the plaintiff appealed that decision to the Superior Court. The Superior Court held that the plaintiff's contentions on appeal had been waived.

The two-judge panel majority in Lineberger found two instances of waiver by the plaintiff. First, it held that the plaintiff waived all of her appellate contentions because her "Statement of Matters Complained of on Appeal," which the trial court required pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, was too broad and vague. Second, the panel majority found that the plaintiff waived her contention that the manufacturer could not obtain summary judgment under the "Nanty Glo Rule," since its motion was supported only by testimony, because she had not raised that issue when she opposed the manufacturer's motion. The third judge on the Superior Court panel disagreed with the initial waiver holding but agreed with the second waiver holding.

There Is Waiver And Then There Is Waiver

Both of the panel majority's waiver holdings are troublesome.

The holding based on the failure to raise an argument for consideration first by the trial court implicates a basic waiver doctrine for appeals in Pennsylvania, which every appellate attorney worth his or her salt knows very well. Many clients and litigators, however, do not, particularly those who think that it is best to hold back arguments for use at a later stage of the case.

The basic waiver doctrine was laid down by the Pennsylvania Supreme Court decades ago primarily to prevent the sandbagging of trial courts, which would occur if no timely objection was raised in the trial court, or when a complaint of error was not raised with the trial judge but was raised for the first time on appeal. The basic waiver doctrine requires that the trial court be given the first opportunity, wherever possible, to correct or to avoid error. Consequently, if an objection, argument, or corrective motion is not timely raised for consideration by the trial court, that objection, argument, or corrective motion will not be considered by an appellate court.

Given the basic and long-standing waiver doctrine, one cannot reasonably argue against the Superior Court's finding in Lineberger that the plaintiff's "Nanty Glo Rule" argument was waived because that argument had not been timely raised for consideration by the trial judge. Nevertheless, that ruling prompts one to wonder if there would have been no waiver had an appellate attorney been promptly engaged to handle or to assist in the development of the case or at least the defense of the manufacturer's motion for summary judgment.

What is more troublesome is the waiver based on the plaintiff's Rule 1925(b) statement. A seasoned appellate attorney certainly would have paved the way to avoid that unfortunate consequence. I can confidently make that statement because, as a seasoned appellate attorney, I know that there is far more to Rule 1925 jurisprudence than what appears in the Rule and its explanatory comments. Indeed, I know that the realities are quite different from what may be gleaned by reading the Rule and its comments.

Rule 1925 has been on the books for many years, but in the last decade or so, it has become one of the notorious banes of appellate practice. There are many other aspects of appellate practice which are tricky and challenging, but currently Rule 1925 takes the proverbial cake.

As a seasoned appellate practitioner, and as a current Co-Chair of the Pennsylvania Bar Association's Appellate Advocacy Committee, I have been lobbying for changes to Rule 1925 jurisprudence to provide some realistic balance between the central purpose of the Rule (having the trial courts explain the bases for their rulings to the appellate courts) and litigants' fundamental right to meaningful appellate review. Those efforts continue and are intensifying. But even if successful, those efforts will not make appellate practice a walk in the park for the neophyte or the careless, any more than recent amendments to the Rules of Civil Procedure or to the Rules of Evidence have made every lawyer a master of trial presentation.

With or without reform, the message to clients and to lawyers who are not appellate practitioners is and always will be this: use appellate counsel early and often. Clients who do not likely will not achieve the type of treatment that they deserve from the appellate courts. Lawyers who do not, especially those who assign appellate matters to their junior associates, may very well find themselves as defendants in malpractice cases and at a quick loss for clients.

*Chuck, a shareholder in our Philadelphia, PA office and the founding Director Emeritus of our firm's Post-Trial and Appellate Advocacy Practice Group, can be reached at (215) 575-2626 or cwcraven@mdwcg.com.