Defense Digest

Plaintiff's Prior Juvenile Substance Abuse Treatment, Blood Test Results, And Prior Adult DUI Convictions Are Deemed Admissible At Trial By The PA Superior Court
By Peter D. Giglione, Esq.*

The Pennsylvania Superior Court recently declared that a trial court's admission in a Dram Shop Act case of records of the plaintiff's prior juvenile drug abuse, two prior DUI convictions, and the fact that metabolites of illegal drugs were found in his blood, was proper and not unfairly prejudicial because the juvenile records were probative of the plaintiff's life expectancy, and the prior DUIs and drugs in his system related to his tolerance of intoxicants.

In Pulliam v. Fannie, 2004 Pa. Super. 116, the Superior Court was faced with three separate issues relating to the plaintiff's claims that a hotel bar continued to serve him alcoholic beverages while he was already intoxicated, allegedly resulting in a single-car motor vehicle accident later that same evening: first, whether or not by filing the lawsuit the plaintiff waived the statutory privileges of 42 Pa.C.S.§ 6352.1, which served to seal his juvenile drug rehabilitation records; second, whether the trial court properly admitted evidence of the plaintiff's drug rehabilitation, two prior DUI convictions, and the fact that marijuana and cocaine metabolites were found in his blood after the accident, on the basis that they were relevant and more probative than prejudicial; and, finally, whether the trial court properly admitted evidence that the plaintiff was not wearing a seatbelt at the time of the accident.

Testimony at trial in Butler County, Pennsylvania, established that for approximately one hour and forty-five minutes on June 25, 1998, the plaintiff, Derl Pulliam, and a female companion consumed alcoholic beverages at the Bakerstown Hotel's bar.  After leaving and driving his companion home, Pulliam failed to properly negotiate a turn and was involved in a single-car accident.  The accident resulted in Pulliam's paralysis from the mid-chest down to his toes.  The testimony at trial relating to whether or not Pulliam was visibly intoxicated was conflicting.  Pulliam claimed that he consumed 20 to 24 drinks during that time, slurred his speech, spilled his drinks, and was staggering and bumping into objects.  His companion testified that she saw Pulliam consume 10 to 12 bottles of beer, as well as "at least a few" shots of liquor.  Defense toxicology experts countered the plaintiff's claims.  One even testified that if Pulliam had consumed as much alcohol as he claimed within a two-hour period, his blood alcohol level would have been .40, rendering Pulliam "in a state of virtual coma" and "in very real danger of death."

Prior to trial, counsel for the defendants filed a motion to compel the plaintiff to produce his juvenile drug rehabilitation records.   Relying on the Superior Court's opinion in Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), the trial court granted the defense's motion and ordered the plaintiff to disclose the records of his prior treatment for drug abuse. 

In Kraus, the plaintiff was struck by the defendant's vehicle while crossing the street.   At the time that he was struck, the plaintiff was intoxicated, and discovery showed that he received prior treatment for drug and alcohol problems as a juvenile.  At trial, the defendants sought to introduce the plaintiff's juvenile drug and alcohol treatment records as evidence, arguing that the records were probative of the plaintiff's life expectancy.  The plaintiff argued that the records were protected by various statutory privileges and were also unfairly prejudicial.  The Superior Court held that by filing a lawsuit claiming permanent injury, the plaintiff "impliedly waived" any privilege granted to him by statute.  In addressing plaintiff's claims that the records were unfairly prejudicial, the Superior Court held that, while the records were prejudicial, they were also highly probative of the plaintiff's life expectancy and, thus, admissible. 

The trial court in Pulliam followed the Superior Court's reasoning in Kraus, finding that the plaintiff waived his statutory privilege by filing a lawsuit seeking damages for a permanent injury and, thus, had to produce the treatment records.  The court further noted that federal law permitted the disclosure of confidential records upon a showing of "good cause." 

In affirming the trial court's decision to admit the records as probative of the plaintiff's life expectancy, the Superior Court affirmed the trial court's reliance on Kraus, finding that the records were properly admitted as they were more probative of the plaintiff's life expectancy than they were unfairly prejudicial.   The court also implied in a footnote that admission of the evidence was indeed proper since the plaintiff had presented evidence of his own life expectancy, which extended "into the septuagenarian years." 

The Superior Court further relied on Kraus in holding that evidence of his prior DUI convictions, and the presence of marijuana and cocaine metabolites, were also properly admitted as the evidence was more probative than prejudicial.  Specifically, with respect to the evidence of the drug metabolites, the court noted this evidence was probative of Pulliam's "tolerance to intoxicants," which was "squarely at issue in [the] trial for damages on allegations that [the defendant] negligently over-served intoxicating beverages to [the plaintiff]."  The court also noted that Pulliam had presented evidence that he was not tolerant of intoxicants, implying that the defense should, therefore, be permitted to present the evidence of his tolerance for purposes of rebuttal.

Finally, while the Superior Court concluded that the trial court erred in permitting defense counsel to question a witness regarding whether or not Pulliam was wearing his seatbelt at the time of the accident, the court found that it was harmless error, as the witness answered that she could not recall if the seatbelt was on or off.

The Superior Court's opinion in Pulliam is, in short, a reaffirmation of the legal principles enumerated in Kraus.  In fact, there are only two distinct differences between the facts of each case.  First, Kraus involved an intoxicated plaintiff-pedestrian in a negligence suit while Pulliam was a Dram Shop Act case.  Second, the statutes relied upon by each particular plaintiff to protect their respective medical records differed.  The Pulliam court, however, guided by the all-encompassing language of Kraus, did not take issue with the difference in statutes, finding only that the confidentiality of the records was waived when the suit was filed.

*Peter is an associate in the firm's Pittsburgh, Pennsylvania office.  He can be reached at (412) 803-1150 or pgiglione@mdwcg.com.