Ford-Bey v. Prof'l Anesthesia Servs. of N. Am., LLC

• Decision Date: 20 February 2020
• Docket Number: No. 677 EDA 2019,677 EDA 2019
• Citation: 229 A.3d 984
• Parties: Wakeem FORD-BEY, Administrator of the Estate of Wanetta Ford-bey v. PROFESSIONAL ANESTHESIA SERVICES OF NORTH AMERICA, LLC; Joel D. Sokoloff, M.D.; Thomas Maddaloni, CRNA; Scott Wilson, CRNA; Physicians Care Surgical Hospital, LP Appeal of: Thomas Maddaloni, CRNA
• Court: Pennsylvania Superior Court

229 A.3d 984

Wakeem FORD-BEY, Administrator of the Estate of Wanetta Ford-bey

v. PROFESSIONAL ANESTHESIA SERVICES OF NORTH AMERICA, LLC; Joel D. Sokoloff, M.D.; Thomas Maddaloni, CRNA; Scott Wilson, CRNA; Physicians Care Surgical Hospital, LPAppeal of: Thomas Maddaloni, CRNA

No. 677 EDA 2019

Superior Court of Pennsylvania.

Argued August 28, 2019

Filed February 20, 2020

Reargument Denied May 4, 2020

James C. Sargent Jr., West Chester, for appellant.

Paul C. Troy, Norristown, for appellant.

Carol A. Shelly, Doylestown, for appellee.

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:

Thomas Maddaloni, CRNA¹ appeals from the January 14, 2019 order² compelling him to produce his handwritten notes that he claims are protected from disclosure by the attorney-client and work-product privileges. The trial court found that Mr. Maddaloni had not satisfied the four elements necessary to successfully invoke the attorney-client privilege. Additionally, the court found that Mr. Maddaloni failed to make the showing necessary for application of the work-product privilege, i.e ., that his notes contained his counsel's mental impressions or strategy. After careful review, we affirm.

The facts giving rise to the legal action are as follows. Wanetta Ford-Bey ("Decedent") underwent surgery at Physician's Care Surgical Center ("Surgical Center") on June 12, 2015. She died shortly thereafter of respiratory failure. Wakeem Ford-Bey, the Administrator of Decedent's estate ("Administrator") commenced this medical malpractice action against Professional Anesthesia Services of North America, LLC, Joel D. Sokoloff, M.D., Mr. Maddaloni, Scott Wilson, CRNA, and the Surgical Center on February 13, 2017.

During the course of discovery, a dispute arose that is the subject of the instant appeal. At Mr. Maddaloni's discovery deposition, the following exchange took place:

Q: When you reviewed the chart in preparation for your deposition, did you have it printed out like it is in front of you?

A: Yes.

Q: Okay. Did you take any notes while you were reviewing it?

A: No, I did not.

Q: Did you write anything on your copy of the chart?

A: I believe I did.

Q: And was that to assist you in your review?

A: Yes.

Q: And did you write those notes at home? Or wherever you were reviewing the chart, did you write those notes?

A: Yes.

Q: Okay. And where is your copy of the chart?

A: It's at my home.

Q: If you didn't have the chart, would you be able to remember the specifics of each and every aspect of the treatment that was provided to Mrs. Ford-Bey on June 12th?

A: No.

Maddaloni Deposition, 2/1/18, at 27-28. Administrator's counsel asked for a copy of the annotated record, but Mr. Maddaloni's counsel objected, asserting attorney-client and work-product privileges.

On March 5, 2018, Administrator served supplemental interrogatories and requests for production directed to Mr. Maddaloni for "a copy of the ... chart in the possession of [Mr. Maddaloni], which includes all notes, typed or handwritten, prepared by [him] prior to and in preparation of [his] February 1, 2018 deposition." Supplemental Interrogatories and Requests for Production, 3/5/18, at ¶2. The request expressly excluded "references to mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories of [Mr. Maddaloni]'s attorney and mental impressions, conclusions or opinions respecting the value or merit of the claim or defense or respecting strategy or tactics of [Mr. Maddaloni]'s representative." Id . Mr. Maddaloni objected to the request on the ground that "it seeks information prepared in anticipation of and during the course of litigation, protected by attorney-client privilege and/or the attorney work product doctrine, and beyond the bounds of permissible discovery under Pa.R.C.P. 4003.3." See Answer to Plaintiff's Supplemental Interrogatories and Request for Production of Documents, 8/8/18, at ¶2.

Administrator filed a motion to compel, which Mr. Maddaloni opposed, and the matter was heard by the discovery master. The trial court, based on the recommendation of the master, entered an order on December 12, 2018, directing Mr. Maddaloni to produce the annotated chart within twenty days, and overruled his objections based on privilege.

Mr. Maddaloni filed a motion for reconsideration, which the trial court granted. Oral argument took place on January 10, 2019. Counsel for Mr. Maddaloni represented that his client made the notes "at the direction of or on the advice of counsel," but acknowledged that this fact was not in the record. N.T. Motion for Reconsideration, 1/10/19, at 13-14. When asked by the court if counsel was relying on "any facts of that nature," or simply relying upon the deposition and other record facts, counsel indicated that they were relying upon the deposition and record. Id . at 14.

Administrator argued that, since there was no evidence that the handwritten notes were made at counsel's request, in his presence, or for purposes of obtaining counsel's advice, "the attorney-client privilege has not been made out." Id . at 23. Mr. Maddaloni offered to provide a supplement if the court needed it, but steadfastly maintained that the decision could be made on the record as it stood because Administrator, the party seeking the discovery, had not developed a record that would compel production. Id . at 24.

By order of January 14, 2019, the court re-confirmed its December order directing that the copy of the chart bearing Mr. Maddaloni's handwritten notes be produced within seven days of the docketing of the order. Mr. Maddaloni did not comply. Instead, nine days after the order was docketed, Mr. Maddaloni filed a motion seeking to supplement the record with his affidavit dated January 18, 2019. The court denied the motion by order of January 30, 2019.³

Mr. Maddaloni filed a notice of appeal to this Court on February 12, 2019,⁴ and complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court penned its Rule 1925(a) opinion, and the matter is ripe for our review. Mr. Maddaloni presents three issues for our review, which we have re-ordered for ease of disposition:

1. Whether the trial court erred and/or abused its discretion in denying [Mr. Maddaloni]'s Motion to Supplement the Record with an Affidavit that [Mr. Maddaloni] offered – which simply memorialized evidence already in the record that established the notes were privileged and protected from discovery pursuant to the attorney-client privilege and work product doctrine - where there would have been no prejudice to plaintiff had the Affidavit been accepted?

2. Whether the trial court erred and/or abused its discretion by ordering [Mr. Maddaloni] to produce handwritten notes, created after commencement of litigation and in preparation for his deposition, where the notes were either written in the presence of [Mr. Maddaloni's] counsel, or for the purpose of securing legal advice, hence, are protected from discovery by the attorney-client privilege?

3. Whether the trial court erred and/or abused its discretion in directing [Mr. Maddaloni] to produce his handwritten notes, where such notes reflect his counsel's mental impressions, hence are protected from discovery by the work-product doctrine, as codified by Pennsylvania Rule of Civil Procedure 4003.3, relating to trial preparation material?

Appellant's brief at 5.

Mr. Maddaloni initially contends that the trial court abused its discretion in denying his motion to supplement the record with his affidavit. He alleges that the court imposed "an excessively stringent standard of proof and failed to properly allow additional substantiation of facts already before the court." Appellant's brief at 28-29. "In view of the importance of the rights involved and the absence of prejudice to [Administrator]," Mr. Maddaloni maintains that the court should have permitted him to supplement evidence that already existed. Id . at 29.

In the trial court's view, the pleading styled as a motion to supplement the record was "in substance a second motion for reconsideration." Trial Court Opinion, 4/1/19, at 15. Appended thereto was new evidence, i.e ., an affidavit averring new facts that had not been presented before. Citing this Court's decisions in Bollard & Assocs., Inc. v. H & R Indus., Inc. , 161 A.3d 254, 256 (Pa.Super. 2017), and Kelly v. Siuma , 34 A.3d 86 (Pa.Super. 2011), the trial court maintained that it was within its discretion to refuse to consider new evidence presented for the first time in a motion for reconsideration. Moreover, it reasoned that the facts herein presented an even stronger basis for refusing to consider new evidence as it was a second request for reconsideration of the initial discovery order.⁵ In denying the motion, the court concluded that, "Under these circumstances, the introduction of new evidence that could have been presented previously is contrary to any concept of orderly procedure." Id . at 16.

We find no error or abuse of discretion on the part of the trial court. The trial court granted reconsideration and permitted Mr. Maddaloni to make a case in support of privilege. At the January 10, 2019 argument, counsel for Mr. Maddaloni initially advanced an entirely new legal theory in support of non-disclosure of the notes.⁶ In support of the applicability of the attorney-client privilege, however, he was content to rest on the facts established during his client's deposition.

Counsel rejected the court's position that it mattered whether the client communicated the information with his attorney. He insisted that notes penned by a client to help him remember information were attorney-client privileged "either way." Id . at 8. Thus, counsel argued that it did not matter whether the notes were made in the presence of counsel since Mr. Maddaloni testified that he reviewed the Surgical Center chart with his attorney. Id . at 9. In short, Mr. Maddaloni took the position...