Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

To paraphrase the law in Pennsylvania as it applies to Outrageous Conduct Causing Severe Emotional Distress, actors (1) who by extreme and outrageous conduct intentionally or recklessly cause severe emotional distress to another is liable; and (2) where such conduct is directed to at a third person, such actor is liable if s/he intentionally or recklessly causes severe emotional distress to a member of such person's immediate family who is present at the time. Such law is premised upon the Restatement (Second) of Torts § 46(1) and (2). In plain terms Section 46(1) provides a remedy to the individual directly effected. Section 46(2), also known as "the Bystander Rule" provides a remedy to a third party also effected by the conduct but conditioned upon the requisite familial connection. 

The Bystander Rule, and the supporting reasons, generally make sense. It requires the "presence" of a third party that is not otherwise insulated from time or other factors that may "soften the blow" on what still remains an otherwise "shock to the system." It provides for a line in the sand that avoids a very real risk beginning a judicial journey down a slippery slope that affords greater certainty of: credibility of injury, severity of injury and a need to delineate who may recover and to the extent that the incidental tremors of the injury may travel. By way of example, this rule makes sense in the context of an auto accident involving a child whereby injuries are sustained as a result of outrageous or reckless conduct of another where the accident is (1) witnessed (2) by a mother (3) that results in immediate and contemporaneous shock (4) not insulated by time or other factors. Such is not to say that a mother would not suffer shock or injury to her system upon learning about the accident from another--the injury may be very real--nevertheless, a gateway is installed to prevent disingenuous or fabricated subsequent claims of both injury and/or degree of injury. It also limits the class of claimants by denying relief to otherwise would be bystanders, that although may also suffer shock and horror, provides workable boundaries to effectively and efficiently maintain the judicial system.   In the context of the hypothetical car accident this makes sense--the operative word being "accident" i.e., an unintended event. To be sure, some emotional distress claims will be left without a viable remedy, but the rule generally makes sense.

The Bystander Rule, however, is the equivalent of trying to fit a square peg into a round hold when it comes to claims for emotional distress that are the result of intentional acts of extreme and outrageous conduct of others where "the presence" of another would as a practical matter almost always nullify the tort itself. Surely, the literal interpretation of Section 46(2) in all cases, and subsequent application of the same by the Courts of the Commonwealth of Pennsylvania, would deny all claims for recovery for third parties in such circumstances. For example, in a case where a child is abused or sexually molested by a member of the clergy, daycare operator or elementary teacher, common sense tells us that if a parent were present, the abuse (tort) would not occur. The grievous parent that suffers a very real shock to his/her system is left without remedy--penalized for (1) not being present to prevent the harm and (2) left without legal recourse for injuries sustained. 

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In a medical malpractice action, a crucial issue in any case is the value of damages to the plaintiff if liability is established. The Supreme Court of Pennsylvania recently issued an opinion clarifying that a defendant does not have to call a competing expert to respond to the plaintiff’s damages expert in order to avoid having the plaintiff’s expert’s figures considered “proven.” Rather, the defendant can rely on his attorney’s cross-examination skills. The ruling allows defendants the flexibility of deciding whether to call their own expert to challenge a plaintiff’s expert or whether to rely on cross-examination of the plaintiff’s expert. The latter is what the physician-defendant and his group did in Carroll v. Avallone.

Carroll involved a wrongful-death and survival-claim against Dr. Avallone and his medical group filed by the deceased patient’s husband, Mr. Carroll. At trial, Mr. Carroll’s expert damages witness, an actuarial economic consultant, testified that Mrs. Carroll’s lost earning capacity, fringe benefits, and past and future household services were between $832,498 and $1,486,713. 

Dr. Avallone and his group did not call their own damages expert to challenge the plaintiff’s expert. Instead, they relied on their attorney’s cross-examination of the plaintiff’s expert. During cross-examination, the defense attorney challenged the expert’s factual assumptions underlying his numbers, including the assumption that Mrs. Carroll, who was unemployed when she died, would have returned to work in the nursing field. (A valuation of damages in a wrongful-death claim requires the parties to present to the jury evidence about what the decedent would likely have done if he or she had survived. A crystal ball would be very helpful in that context, but the parties and their attorneys proceed without that useful tool.) The defense attorney challenged that assumption, pointing out through cross-examination facts inconsistent with the assumption. For example, she had no plans to return, she had long-term health problems, and she had illegal drugs in her body when she died.

The jury returned a verdict, splitting liability 50/50 between the parties and awarding Mr. Carroll $29,207 on the wrongful-death claim and nothing on the survival claim. The Superior Court of Pennsylvania remanded for a new trial on damages because it concluded that Mr. Carroll’s expert’s damages range was “uncontroverted” because the defense did not present an expert witness to challenge the opinion. Therefore, the appellate court found that the five-figure verdict was not reasonably related to the proven damages (in the range of six or seven figures).

The case went up to the Supreme Court of Pennsylvania upon the defendants’ appeal. That court reversed the Superior Court’s order. The Supreme Court of Pennsylvania explained that the defense attorney’s cross-examination of the expert was sufficient to challenge the evidence and to put it before the jury for consideration. Independent evidence by a separate witness is not required. It held that the Superior Court’s determination that “the failure to present affirmative evidence makes the other party’s opinion evidence uncontroverted, rendering it ‘proven damages’ that must be reflected in the jury’s verdict” was inconsistent with Pennsylvania law.

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If a Pennsylvania attorney engages in misconduct involving the collection and distribution of a client’s settlement funds, the Supreme Court of Pennsylvania provides the exclusive remedy to the client through the Rules of Professional Conduct and Rules of Disciplinary Enforcement (“Rules”). The Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) (and the possibility of treble damages that go with that Pennsylvania statute) does not apply. So held the Supreme Court of Pennsylvania in Beyers v. Richmond, a December 28, 2007 decision.

In Beyers, an unhappy client sued her attorney and his law firm, alleging negligent supervision, negligence, conflict of interest, breach of fiduciary duty, fraudulent misrepresentation, and violation of the UTPCPL. The trial court awarded treble damages on the UTPCPL claim, and the Superior Court affirmed.

The Supreme Court of Pennsylvania, however, disagreed. It held that, although it was disturbed by the attorney’s conduct, the UTPCPL did not apply. Instead, the Rules are the exclusive remedy under the facts of the case. The Pennsylvania Constitution grants the appellate court the exclusive authority to monitor Pennsylvania attorneys’ conduct in practicing law. That grant of authority is consistent with the separation of powers between the Pennsylvania judiciary and legislative branches of government and is intended to ensure the efficient administration of justice. Pursuant to the constitutional authority, the Supreme Court of Pennsylvania enacted the Rules to regulate and monitor conduct of Pennsylvania attorneys.

The holding was fact-specific. As a general rule, though, it seems safe to assume that, where professional misconduct by an attorney is involved (as opposed to an attorney’s debt-collection practices, for example), the Supreme Court of Pennsylvania is not going to allow the Pennsylvania legislature to trump its exclusive authority to govern Pennsylvania attorneys in the practice of law.

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"This article is reprinted with permission from the January issue of The Legal Intelligencer.  Copyright 2008 ALM Properties, Inc.  Further duplication without permission is prohibited."

From the moment that I met my client, I could not wait for the opportunity to be in front of a jury presenting the facts of his case. 

On March 3, 2006, Lance Corporal Matthew Snyder was killed in Iraq. Upon learning of their son’s death, the Snyder family planned a traditional funeral service and burial. They expected a private service to grieve the loss of their loved one -- but, others had a different plan. On March 10, 2006, the Snyder family conducted a traditional Catholic mass at St. John’s Catholic Church in Westminster, Maryland to remember Matt and to come to grips with the reality that they faced.

 The defendants, on the other hand, also wanted to participate in the Snyder family’s grieving process. The defendants, a “church”, its leader and several church members from Topeka, Kansas, have become notorious for protesting military funerals. On March 8, 2006, the defendants announced their intention to picket “St. John’s Catholic dog kennel.” Sadly, Matt’s body was transported back to the United States on that very same day.

Mr. Snyder had vaguely heard of the defendants prior to his son’s funeral but did not understand the true nature of their hate or the harm that the defendants were preparing to cause. True to their word, the defendants came to the St. John’s Catholic Church on March 10, 2006. 

Ironically the defendants, licensed attorneys, have knowledge of the law that allows them to push (and test) the limits of the First Amendment beyond the breaking point. 

On March 10, 2006, the defendants and four of their young children carried out their threat and came to the church to protest. The defendants brought their relatively large fluorescent signs, and the signs read - Priest Rape Boys, Thank God for Dead Soldiers, You’re going to Hell, God Hates You, Pope in Hell, Thank God for IEDs and several other equally shocking statements. In addition to the offensive signs, the defendants sang macabre lyrics set to the tune of time honored patriotic songs. In one such example, “God Bless America” was changed to “God Hates America.”

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