Daniel defends clients in all areas of civil litigation, ranging from individuals, to owners of small businesses, to major corporations. Daniel's primary focus in his practice is defending physicians and other health care providers, as well as physician's offices, nursing homes, outpatient centers, hospitals and health systems in all types of litigation matters. He is routinely consulted outside of formal litigation to implement best practices and to identify issues and potential areas of liability. If a lawsuit is initiated against his clients, Daniel works closely with them to defend against the claims, identify end goals and craft an effective strategy to reach them.
In addition to his clients in the health care industry, Daniel also defends corporations in multi-party, catastrophic injury cases in the general casualty, product liability, construction injury, dram shop and premises liability fields.
Working with a team of accomplished trial attorneys, Daniel has handled every stage of litigation from routinely drafting successful dispositive motions that dismiss his clients entirely from lawsuits to vigorously questioning adverse parties on the stand at trial.
Daniel received his undergraduate degree in English from the Pennsylvania State University in 2010. He went on to attend the Widener University School of Law, now Delaware Law School, in Wilmington, Delaware, where he graduated magna cum laude with a certification in trial advocacy. Daniel was an active participant in many societies and organizations while pursuing his juris doctor. He served as the copy editor for the Delaware Journal of Corporate Law. He competed in the Allegheny County Academy of Trial Lawyers annual mock trial invitational as a member of Widener's civil trial team. Daniel also participated in the Veterans Law Clinic, counseling retired military members and their families and representing veterans' interests in appeals before the Department of Veterans Affairs.
Thought Leadership
Defense Digest
Attorney’s Representation of Treating Physician Prohibits Ex Parte Communication When the Attorney’s Firm Already Represents a Named Defendant
September 1, 2024
Key Points: A law firm that represents a named defendant cannot also represent a non-party treating physician for that physician’s deposition. The Pennsylvania Rules of Civil Procedure prohibit counsel from communicating with a non-party treating physician outside of the parameters of discovery. The Pennsylvania Supreme Court ruled that the “client exception” to Rule 4003.6 is inapplicable where the treating physician’s attorney is from a firm that already represents a named party. The Supreme Court of Pennsylvania recently solidified developing precedent regarding the limits of the attorney-client relationship, interpretation of Rule 4003.6, and a law firm’s ability to engage in deposition-only representation of a non-party treating physician. The court’s June 2024 decision confirms that a law firm representing a named defendant physician cannot circumvent Rule 4003.6’s prohibition against ex parte communications in order to obtain information from a non-party treating physician by way of establishing an attorney-client relationship through representation of that non-party physician for his or her deposition. Mertis v. Oh, 2024 WL 3033416 (Pa. June 18, 2024). The court’s decision affirms the Pennsylvania Superior Court’s 2022 holding in Mertis v. Oh, 2022 WL 3036698 (Pa. Super. Aug. 2, 2022). In Mertis, the plaintiff brought medical negligence claims against an anesthesiologist who gave her nerve blocking medication during her knee surgery. Suit was filed against that anesthesiologist, the anesthesia company, and the hospital where the surgery occurred. During discovery, the plaintiff subpoenaed the surgeon, who was not a named party, for deposition. The surgeon sought counsel for the deposition from his insurer, which assigned an attorney from the same firm as the attorney representing the defendant anesthesiologist. The plaintiff contended that, because the surgeon’s attorney was from the same firm as the anesthesiologist’s attorney, the firm was violating Pennsylvania Rule of Civil Procedure 4003.6’s prohibition against ex parte communications with a treating physician. For context, Rule 4003.6, regarding “Discovery of Treating Physicians,” is designed to prevent defense counsel from communicating directly with a plaintiff’s treating physician. Under Rule 4003.6, defense counsel can seek information from a treating physician only by obtaining the party’s written consent or through formal discovery. The Rule’s aim is to avoid ex parte communications between defense counsel and the plaintiff’s physician in favor of conventional means of discovery, such as interrogatories or depositions, where all parties can participate. Essentially, the Rule is designed to prevent a defendant from obtaining information from a doctor who treated the plaintiff which the plaintiff or co-defendants and their counsel are not privy to. However, Rule 4003.6 does have exceptions. That is, an attorney can seek information from a treating physician who is (1) their client, (2) an employee of their client, or (3) an ostensible employee of their client. The “client exception” was specifically at issue in Mertis. The firm whose attorneys represented the anesthesiologist and the surgeon contended that, because they established an attorney-client relationship with the surgeon, their communications with the surgeon fell under the scope of the Rule 4003.6(1) client exception. The Pennsylvania Supreme Court ruled to the contrary. The court held that the client exception was inapplicable in this situation as the attorneys for both the named defendant and the non-party treating physician were from the same firm. Even though the defendant anesthesiologist and non-party surgeon were represented by different individual attorneys from the same firm—who entered the case at different stages and for different purposes—the court made certain that Rule 4003.6 commands a firm wide effect. Essentially, once a law firm enters for a named defendant, Rule 4003.6 prevents a different attorney within the same law firm, who was initially uninvolved in the firm’s defense of a named defendant, from representing the non-party treating physician. The court’s holding creates a clearly defined rule. Only with written consent from a plaintiff’s counsel can a law firm represent both a defendant and non-party treating physician. Although the Pennsylvania Superior Court’s 2022 decision flagged this issue, the Supreme Court’s 2024 holding solidifies this interpretation of Rule 4003.6. The practical effect of this decision is that defense firms must be aware of situations like the one in Mertis, where a non-party physician seeks, or is assigned, representation for their deposition from an attorney at a firm which already represents a named defendant. In a practice area where medical providers and their insurers often have existing relationships with counsel, and where non-party treating physicians could foreseeably be employed by named defendant providers who are already represented by that same counsel, this situation is by no means far-fetched. For example, the surgeon in Mertis sought an attorney for his deposition based on the attorney’s previous representation of the surgeon in an unrelated case. Those same circumstances may arise when a past client is implicated as a fact witness in a subsequent case and seeks familiar counsel for their deposition. In that event, the Mertis court’s holding demands that, unless the attorney obtains written consent from the plaintiff, the attorney cannot accept representation if their firm is already representing a defendant. It has now been made certain that doing so would constitute prohibited ex parte communication under Rule 4003.6. In conclusion, the Mertis rule is a strong warning that large defense firms, generally speaking, should not represent a non-party physician when their firm has already been retained to represent a named defendant in a medical malpractice case. The likely result? The defense firm will be disqualified. Daniel and Jack are members of our Health Care Department and work in our Philadelphia, Pennsylvania, office. Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
Legal Updates for Health Care Liability
New Guidance from Pennsylvania’s Superior Court for Establishing Factual Basis to Transfer Venue
October 17, 2023
Since the Supreme Court of Pennsylvania’s August 25, 2022, order changed the venue rules in medical malpractice cases—from requiring that cases be filed “only in a county in which the cause of action arose” to applying the same venue standards that apply to all other types of cases—motions to transfer due to forum non conveniens have taken a much more prominent position in medical malpractice litigation. Now that the new venue rule has been in effect since January 1, 2023, defense practitioners must place more emphasis on what needs to be established factually in order to transfer a case from one county to another. The Superior Court’s October 11, 2023, opinion in Tranter v. Z&D Tour, Inc., 2023 Pa.Super. 200, --- A.3d --- (Pa. Super. Oct. 11, 2023) once again reaffirmed what practitioners are required to do in order to support a forum non conveniens motion. The Tranter case arises out of a bus accident that occurred in Westmoreland County, Pennsylvania. After the bus rolled over and became disabled, it was hit by multiple tractor trailers, which resulted in five fatalities and multiple other injured parties. The scene following the crash included multiple EMS personnel and first responders who came to attend to those involved in the accident. A civil action lawsuit was eventually filed in Philadelphia County. Certain defendants filed motions to transfer venue based upon forum non conveniens. In support of these motions, “eleven affidavits from first responders and others who lived and worked in and around Westmoreland County” were included with the motions. Additionally, the parties conducted depositions of the affiants, which provided another opportunity to develop a sufficient record for the motion to transfer venue. The trial court granted the motion to transfer venue, concluding that, because the potential witnesses would have to travel over 200 miles if called to testify at trial, the defendants established that Philadelphia County was an “oppressive and vexatious venue.” On appeal, however, the Superior Court reversed. In so doing, the court commented that there was no on-the-record discussion or other evidence to establish the significance of these proposed witnesses that was relied upon for the transfer to the defense of the case. Without establishing why the proposed witnesses were significant to the defense of the case, the court said that there was no reason to even examine the potential hardship. Accordingly, moving forward, when defense practitioners attempt to transfer venue based upon forum non conveniens, the first step is to determine the “key witnesses” to the defense. Once those witnesses are identified, an affidavit must be procured that first sets forth how each witness is relevant and necessary to establish or refute a specifically enumerated claim and/or defense. Second, after the affiant’s relevance to the defense has been established, specific facts that prove a hardship for the witness should also be set forth. The Superior Court has warned that “nearly identical claims of oppressiveness” are not viewed favorably. Thus, to the extent that the various affidavits set forth different facts showing hardship, it will serve to strengthen the motion to transfer. Finally, as demonstrated by the Tranter case, do not miss out on an opportunity to develop witnesses’ significance to the defense and hardships/oppression through deposition. Should the trial court allow depositions to take place, use them to further develop the record in support of the motion to transfer venue. Legal Updates for Health Care Liability – October 17, 2023, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.
