Over the past 27 years, Jack has developed considerable knowledge and experience in the fields of health care and commercial liability. As a shareholder in the firm's Health Care Department, he focuses his practice in medical, dental and nursing malpractice, long-term care, and the defense of nursing homes and hospitals, with a secondary interest in general construction liability and product liability cases.
Jack's areas of practice cover medical malpractice involving the representation of hospitals, nursing homes, acute and long-term care facilities, physicians, nurse practitioners, physician assistants, nurses and physical therapists; dental malpractice involving the representation of oral surgeons, periodontists, prosthodontists, endodontists, orthodontists and general dentists; construction liability cases involving the representation of general contractors, subcontractors, engineers, architects and surveyors; premises liability involving the representation of commercial shopping centers, corporate centers, health care offices, etc.; product liability with respect to the representation of manufacturers, distributors and wholesalers; and legal malpractice involving the representation of lawyers, paralegals and legal secretaries.
Jack has handled more than 1,000 medical and dental malpractice cases, 250 to 500 construction and premises liability cases, and 50 to 100 product liability cases. He has taken approximately 50 cases to trial, more than 30 of which were tried to a jury. All but three of these trials resulted in defense verdicts. The three plaintiff verdicts were in the amounts of $2,511, $30,000, and $500,000. He has also handled class actions involving motor vehicle and consumer fraud, the Paxil litigation and EtG testing.
Jack received his Bachelor of Arts degree cum laude from Ursinus College, and earned his juris doctor from The Dickinson School of Law.
In addition to his legal career, Jack has been on the board of directors of the American Missionary Fellowship and is a teacher at Great Valley Presbyterian Church. He has served as manager for Berwyn/Paoli girls' softball teams from ages 10 to 16, as well as softball tournament teams, and was the coach of the Paoli Wildcats 11-12 boys basketball team.
Thought Leadership
The Quarterly Dose
Reshaping Applicability of The Pennsylvania Fair Share Act: The Impact of Spencer v. Johnson
November 1, 2024
Under Pennsylvania law, a defendant’s exposure in a multi-defendant case depends upon more than just the extent of fault and total damages at stake. Now, under a more recent interpretation of the Pennsylvania Fair Share Act by the Pennsylvania Superior Court in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that exposure may be amplified. Before delving into the specifics of the Fair Share Act, codified in 42 Pa. C.S. § 7102, it is helpful to understand three key legal terms: joint and several liability, several liability, and comparative negligence. “Joint and several liability” means that any one defendant who is found liable may be required to pay the full extent of the plaintiff’s damages. For example, a jury awards the plaintiff $10,000. The jury finds that Defendant A is 40% liable and Defendant B is 60% liable. The plaintiff may recover the entire $10,000 from Defendant A, leaving Defendant A to seek contribution from Defendant B for the $6,000 for which Defendant A was not actually at fault. Under “several liability,” each defendant who is found liable will only be required to pay their proportionate share of liability. Using the same example as above, Defendant A would only be required to pay their 40% share, in this case $4,000, to the plaintiff in a several liability system. “Comparative negligence” in Pennsylvania means that a plaintiff’s recovery will be reduced in proportion to the percentage of negligence attributed to the plaintiff (unless the plaintiff is greater than 50% liable, in which case the plaintiff is barred from recovering). For example, if a jury awards a plaintiff $10,000 in damages but finds that the plaintiff was 30% causally negligent, the plaintiff will only be entitled to recover $7,000 in total. Prior to 2011, Pennsylvania was a joint and several liability jurisdiction. Then, in June 2011, the Fair Share Act became law. In short, the Fair Share Act states that a defendant who is found less than 60% liable will only be responsible to pay damages proportional to the fault attributed to that defendant by the jury. Consequently, many in the legal community thought that the Fair Share Act had implemented several liability in cases where a defendant was found less than 60% liable. Ten years later, the Pennsylvania Superior Court suggested in Spencer that in order for the Fair Share Act to apply, the plaintiff’s comparative negligence must be an issue in the case. While this portion of the Spencer opinion is arguably dicta, it has ultimately been treated as binding precedent by courts in Pennsylvania. See, e.g., Snyder v. Hunt, 268 A.3d 416 (Pa. Super. 2021) (unpublished) (holding that because the defendants “did not appear to allege, much less to prove, that [plaintiff] was contributorily negligent, the Fair Share Act ... does not shield them from the common law of joint and several liability under Spencer.”). This means that a defendant who is found less than 60% liable will be subject to joint and several liability unless there is causal negligence attributed to the plaintiff. Defendants in health care liability cases are undoubtedly affected by the recent interpretation of the Fair Share Act. To illustrate how consequential these changes can be, here is another example. Dr. X is an orthopedic surgeon. Dr. X has privileges at Noname Hospital, which does not employ Dr. X or hold him out as their employee. Dr. X’s patient, John Doe, agrees to undergo knee replacement surgery, to be performed by Dr. X at Noname Hospital. On the evening before the surgery, and unbeknownst to the hospital and John Doe, Dr. X suddenly cancels his malpractice insurance policy and loses all of his savings at a casino. The next morning, he fails to meet the standard of care when performing John Doe’s knee replacement surgery, causing John Doe to sustain serious injuries. John Doe sues Dr. X for negligence, and also sues Noname Hospital for corporate negligence, alleging that they failed to create and enforce adequate policies to ensure quality care. At trial, the jury finds in John Doe’s favor against both defendants. The jury apportions 95% of liability to Dr. X and 5% of liability to Noname Hospital. The jury also awards John Doe $10,000,000 in damages. Under the previous, literal interpretation of the Fair Share Act, the hospital would only be required to pay damages proportional to the fault attributed to it, which would be $500,000. After Spencer, however, the Fair Share Act does not apply because John Doe was not comparatively negligent. John Doe would therefore be entitled to recover the full $10,000,000 from Noname Hospital. Furthermore, given Dr. X’s recent financial woes, the hospital would have trouble seeking contribution from Dr. X. Let’s take that same example and add one twist: before the surgery, John Doe failed to take pre-operative antibiotics, without disclosing this to hospital staff, which exacerbated his injuries. At trial, Noname Hospital presents evidence of John Doe’s comparative negligence, but the jury returns the same $10,000,000 verdict. This time, however, the jury apportions 94% of liability to Dr. X, 5% of liability to Noname Hospital, and 1% of liability to John Doe for failing to take his pre-operative medication. Now, because the plaintiff’s comparative negligence is at issue, the Fair Share Act will apply, and Noname Hospital’s liability will be several. John Doe can only recover $500,000 from the hospital, and will have to seek recovery of the remaining $9,400,000 from Dr. X. Ultimately, a health care defendant’s exposure in Pennsylvania depends on the financial solvency and amount of insurance covering the co-defendants, and the comparative negligence of the plaintiff. In cases where comparative negligence is not at issue, liability is joint and several, and the plaintiff can recover all of their damages from any one defendant. When there is good evidence of comparative negligence, defendants should present that evidence at trial in order to potentially obtain the protection of several liability pursuant to the Fair Share Act. The Quarterly Dose – November 2024, 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. © 2024 Marshall Dennehey. All Rights Reserved.
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.
