EVIDENCE

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

APPLICABILITY OF PA RULES OF EVIDENCE

 

The Pennsylvania Rules of Evidence shall be followed in all record hearings conducted in an action for support.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio). 

 

ATTORNEY-CLIENT PRIVILEGE 

 

The burden to establish the applicability of the attorney-client privilege rests on the party who invokes it.  The privilege must be specifically asserted with respect to particular documents.  The privilege is a question of fact and is to be determined in light of the purpose of the privilege and guided by judicial precedent.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The proponent of the privilege must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The question of applicability of the privilege regarding the drafting of documents by an attorney for his or her client depends on whether the client intended the drafting of the document to be a confidential matter.  If so, then the privilege would apply.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Courts have refused to apply the privilege to an attorney's preparation of documents when (1) the client intends the attorney to impart the information to others, or (2) the communications are made in the presence of third parties.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The attorney-client privilege does not attach to documents when a client understands or intends that the substance of the document be revealed to others.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Preliminary drafts or documents and communications made between an attorney and client during the drafting process are privileged and only those parts of the attorney-client that ultimately appear in a published document are outside of the privilege.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Where the writing of a deed is part of the means employed to effect a reconciliation in a divorce suit, the communications relative to such deed are privileged.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).

 

When an attorney draws a deed he is competent to testify to his acts as a scrivener in a transaction that was not considered confidential by his client.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The attorney-client privilege applies to information received by an attorney from his client for the purpose of preparing a document which eventually is to be disclosed to third persons only to the extent that the information received by the attorney is not directly or by implication revealed by the publication of the document.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The moment an attorney faxes a deed and cover sheet to an opposing attorney, the attorney-client privilege as to the content of the deed is waived since the third party then has the opportunity to view the document.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Even if an attorney does not receive a faxed deed, although it was sent, the attorney-client privilege is still waived since an intent is present to release the information to a third party.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

If the preparation and transmission of a deed were not authorized by a client the attorney-client privilege would not apply since a communication from a client to attorney would not be involved.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Even if a deed transmitted to a third party was only a preliminary draft, the attorney-client privilege would still apply since the document was ultimately transmitted and revealed to a third party.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

CIRCUMSTANTIAL EVIDENCE

 

The corpus delicti may be proved by circumstantial evidence.  Commonwealth v. Rafferty, 54 Som. L.J. 182 (Dec. 30, 1996) (Cascio, J.) 

 

A witness may only testify to a telephone conversation if the identity of the person who shared in the conversation is established.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J. Cascio) 

 

The fact that a party said who he or she was during the call does not establish his or her identity.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J. Cascio) 

 

A speaker's identity may be established by circumstantial evidence, such as the disclosure of facts known only by the speaker.  Com. v. Emeigh 58 Som.L.J. 90 (2000) (J. Cascio) 

 

CREDIBILITY

 

Credibility of witnesses is initially for the Master, who can observe their demeanor and attitude, thereby making a more reasonable assessment than can a review by the Court.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.).

 

Although evidence of bias is relevant to impeach the credibility of a witness, evidence that is not admissible cannot be used for impeachment purposes.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.) 

 

To the extent that A.B. was believable, the jury was entitled to convict the Defendant solely based on that testimony. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

CROSS-EXAMINATION

 

The defense shall have the right to cross-examine the plaintiff's expert with respect to those parts of the other expert's reports which he used in formulating his opinions.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike).

 

DEAD MAN'S STATUTE

 

Issues presented by the Dead Man's Statute are normally evidentiary and must be confronted at trial or, at least, by motion in limine, rather than at the summary judgment stage.  Nevertheless, if it is clear that a party will be unable to prove essential elements of the cause of action, pretrial judgment should be entered to avoid unnecessary pretrial proceedings.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike); Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (P.J. Fike)

 

When the representative of an estate takes a deposition of an adverse party, he or she has elected to waive objections under the Dead Man's Statute.  Once the statute is waived, a witness may testify as to dealings with a deceased party.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).

 

A party cannot preserve their Dead Man's Statute objection by placing a specific reservation of rights on the record before participation in a deposition.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

The reason for applying waiver principles to discovery participation in such circumstances, is to prohibit a party from choosing a strategy of pursuing discovery and obtaining information about the claim, and then trying to reapply the Dead Man's bar after learning that the information is damaging.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Under certain circumstances, waiver of Dead Man's Act does not occur when a party merely attends, and does not participate in, a deposition taken at the request of another party.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

When the record does not reveal the extent to which the parties participated in a deposition, the parties must present evidence by deposition, stipulation, or other means, to provide the factual background necessary to resolve a claim of waiver with respect to the Dead Man's Statute.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).

 

Although the plaintiff's counsel concedes that the exception contained in § 5933(a) of the Dean Man's Act allows otherwise excludable testimony to be admitted to contradict testimony of other third parties, the Court construes the § 5933 exception to be limited to matters which occurred between the involved witnesses.  In the instant case, because Sandra Firestone Griffith's conversations with Grace Firestone occurred independently, when no other persons were present.  The challenged testimony of Blaine Firestone does not concern a matter that occurred between the involved parties, and therefore, the challenged testimony of Blaine Firestone regarding conversations with his mother is incompetent and inadmissible.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

The devisavit vel non exception in the Dead Man’s Act, 42 Pa.C.S.A. § 5930, allows a witness whom would otherwise be found incompetent under the Act to testify where the controversy is a dispute between the witness and other parties as to the disposition of the decedent’s property.  Beverly Rest, Co-Executor, and Steve Dansak, Co-Executor of the Estate of Wilson C. Fox, v. Glenn Fox, Jr. 65 Som.L.J. 356 (2014)(Klementik, J.)

 

OBJECTIONS

 

Generally, an objection must be made contemporaneously or as soon as the basis for the objection is known.  However, the trial court, at its discretion, may choose not to impose a waiver if a timely motion is presented.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

Waiver cannot be found in a case where defense counsel failed to include the subject statement in his offer prior to the witness's assuming the stand.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike)

 

When improper testimony has been inadvertently admitted, the error can be corrected by applying to the court to have the evidence stricken.  Such a motion will only be allowed in cases where the ground for the objection was unknown and could not have been known with ordinary diligence at the time the evidence was received.  The matter is within the discretion of the trial judge.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

PAROL EVIDENCE RULE

 

Although Pennsylvania law provides that "parol evidence" may not be introduced unless the language of the written agreement is ambiguous on its face, extrinsic facts and circumstances may be proved to show that language apparently clear and unambiguous on its face is, in fact, latently ambiguous.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (J.Gibson) 

 

In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (J.Gibson) 

 

When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (J. Gibson) 

 

With respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (J. Gibson) 

 

To permit variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (J. Gibson) 

 

RULE 104: PRELIMINARY QUESTIONS

 

A trial court has a duty to prevent questions from going to a jury which would require it to reach a verdict based upon conjecture, surmise, guess or speculation.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

RULE 201: JUDICIAL NOTICE

 

The court may take judicial notice of accepted mortality tables.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

A court may take judicial notice of facts claimed in a Complaint for Support.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio).             

 

RULE 401 – 403: RELEVANCE & ADMISSIBILITY

 

A police officer may properly testify to his observations at the scene of an accident as long as the testimony offered is relevant and material.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike)


Photographs of a murder victim are not per se inadmissible; rather, their admissibility is a matter within the discretion of the trial judge.  Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J).

 

The court must employ a two-step analysis to determine the admissibility of photographs of a murder victim: (1) whether the photographs are inflammatory; and (2) if they are inflammatory, whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.   Commonwealth v. Mitchell, 62 Som.L.J. 260 (2004) (Cascio, J.). 

 

RULE 404: CHARACTER EVIDENCE NOT ADMISSIBLE

 

Pennsylvania Rule of Evidence 404 (b) (4) provides that in criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial, if the court excuses pretrial notice on good cause shown, of evidence of prior crimes, wrongs, or acts it intends to introduce at trial.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

RULE 601: COMPETENCY OF WITNESS

 

When an attorney draws a deed he is competent to testify to his acts as a scrivener in a transaction that was not considered confidential by his client.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Rule 601 of the Pennsylvania Rules of Evidence states: a) General Rule-Every person is competent to be a witness except as provided by statute or in these rules.  B) Disqualification for Specific Defects-A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person: 1) is, or was, at any relevant time, incapable of perceiving accurately; 2) is unable to express himself or herself so as to be understood either directly or through an interpreter; 3) has an impaired memory; or 4) does not sufficiently understand the duty to tell the truth.  Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 333 (2002) (Gibson, J.).  

 

In a forgery case, statements regarding authorization made by an incompetent witness are admissible to prove state of mind at the time the statement was made. Commonwealth v. Nist, 64 Som.L.J. 113 (2009) (Cascio, P.J.)

 

RULE 701 – 706: EXPERT WITNESSES

 

Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary person.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

There is a need for expert testimony to explain the possible effect, if any, of low-tread tries.  The extent of law knowledge about "bald" tires is that they may be less effective than tires with tread in adverse driving conditions.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

The need for expert testimony to connect low-tread tires to an accident is as great as plaintiffs' need for expert testimony on the effect of overloading a truck.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

To warrant the use of expert testimony, the subject of inference must be distinctly related to some science, profession, business or occupation and the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion would help the trier of fact in his search for the truth.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

A party offering expert testimony is required to provide the necessary foundation for that testimony.  Helmick v. Federal Pacific Electric Company, et al, 61 Som.L.J. (1995) (J. Gibson).

 

Details as to the qualifications of expert witnesses, the facts and opinions they are expected to testify to, and the grounds for their opinions, must be supplied.  The necessary answers to these questions, however, need only state the substance of the requested facts and opinion, and a summary of the grounds for the opinions.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)

 

The detailed curriculum vitae of each expert, coupled with a list of cases which would lead to discoverable opinions regarding other cases with similar or parallel facts will generally suffice for identification purposes.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)

 

Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs not the conclusions the scientist reaches, before the court may allow the expert to testify.  Trach v. Fellin, 2003 WL 282804, at 27.  Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)

 

Pa.R.C.P. 207.1 delineates the requirements and procedure for hearing a motion to exclude expert testimony which relies upon novel scientific evidence while granting the reviewing court discretion in the manner of determining the Rule 207.1 Motion.  Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)

 

A party offering expert testimony is required to provide the necessary foundation for that testimony.  Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)

 

In Pennsylvania the standard for qualifying an expert witness is a liberal one where if the witness possesses knowledge with regard to the subject matter that is beyond the knowledge, information, or skill possessed by the ordinary juror, and that knowledge will assist the jury in understanding the evidence of in determining a fact in issue, the witness may testify as an expert. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 167 (2009) (J. Cascio)

 

Pennsylvania has adopted the Frye Standard regarding the admissibility of scientific evidence. As an exclusionary rule of evidence Frye must be construed narrowly as to not impede the admissibility of evidence which would aide the trier of fact in the search for the truth. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 167 (2009) (J. Cascio)

 

Arguments that simply challenge the evidence supporting an expert’s opinion, are a basis for cross examination, not preclusion under Frye. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 167 (2009) (J. Cascio)

RULE 801: HEARSAY GENERALLY

 

A verified petition affidavit or document, and any document incorporated by reference therein which would not be excluded under the hearsay rule if given shall be admitted into evidence if: at least 20 days written notice of the intention to offer them into evidence was given to the adverse party accompanied by a copy of each document to be offered; the other party does not object to their admission into evidence; the evidence is offered under oath by the party or witness.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio) 

 

An objection must be in writing and served on the proponent of the document within 10 days of the date of service of the notice of intention to offer the evidence.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

When an objection is properly made, the Rules of Evidence shall apply to determine the admissibility of the document into evidence.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

Hearsay is not admissible except as provided by the Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio). 

 

The hearsay exception embodied in Pa. R.C.P. 1910.20 was enacted by the Legislature in 1997 as part of 23 Pa. C.S.A. § 4342 to provide for expedited procedures for the determination and enforcement of support. Thus, it was created substantively by statute and procedurally by Rule.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio). 

 

The legislature and the Supreme Court intended the hearsay exception to apply only when a verified writing is offered into evidence.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio). 

 

The term verified when used in reference to a written statement of fact by the signer, means supported by oath or affirmation or made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

If a writing is verified it may be admitted into evidence so long as the other requirements of the statute and the Rule are met. Conversely, if a writing is not verified neither the statute nor the Rule apply.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio). 

 

Hearsay testimony alone is insufficient to establish a prima facie case at a preliminary hearing.  Commonwealth v. McCusker, 60 Som.L.J. 416 (2003) (J. Cascio)

 

RULE 803(3): HEARSAY – STATE OF MIND EXCEPTION

 

The rule against hearsay does not preclude the admission of hearsay statements made by a decedent testator when the statements are that of the testator’s then-existing intent or plan as to the disposition of the testator’s property after death. Beverly Rest, Co-Executor, and Steve Dansak, Co-Executor of the Estate of Wilson C. Fox, v. Glenn Fox, Jr. 65 Som.L.J. 356 (2014)(Klementik, J.)

 

 

The rule against hearsay does not preclude statements of memory or belief if such statements relate to the validity or terms of the declarant’s will.  Beverly Rest, Co-Executor, and Steve Dansak, Co-Executor of the Estate of Wilson C. Fox, v. Glenn Fox, Jr. 65 Som.L.J. 356 (2014)(Klementik, J.)

 

 

RULE 803(8): HEARSAY – PUBLIC RECORDS EXCEPTION

 

Evidence of an out of state conviction falls within the public records exception to the hearsay rule.  Commonwealth v. McCusker, 60 SLJ 416m (2003) (J. Cascio)

 

RULE 803(25): HEARSAY – PARTY ADMISSION EXCEPTION

 

An accused's admission of guilty falls within the party-admission exception to the hearsay rule.  Commonwealth v. McCusker, 60 SLJ 416 (2003) (J. Cascio) 

 

RULE 1001 – 1008: BEST EVIDENCE RULE

 

The minutes of a Borough Council meeting are the best evidence of actions taken by the municipality.  Scalp Level borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.).

 

SPOLIATION OF EVIDENCE

 

The Pennsylvania Supreme Court, in Schroeder v. Commonwealth, adopted the following three-prong test for determining the proper penalty to impose in spoliation cases: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct.  In doing so, the Schroeder Court observed that fashioning a sanction for the spoliation of evidence based upon fault, prejudice, and other available sanctions will discourage intentional destruction.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Fault is comprised of two components: responsibility, and the presence or absence of bad faith.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

The plaintiff's power to control the scene and to exercise authority over the preservation or destruction of evidence is a relevant factor in determining responsibility.  At a minimum, a plaintiff is obliged to inform a potentially responsible party of his or her right to inspect relevant evidence.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Where the plaintiff was aware that the evidence was in the possession of an expert retained by the plaintiff's family's homeowners insurance company, and could have exerted control over the evidence by calling, faxing or writing to the expert to ensure its continued preservation, but failed.  The plaintiff should bear some of the blame for spoliation, especially given the importance of the propane tanks in proving her case.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.) 

 

Prejudice resulting from spoliation of evidence is much less severe in design defect cases, since, although a faulty product is destroyed, an entire line of products bearing the same defect is often accessible.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Prejudice is often much greater when the plaintiff's entire claim hinges on a specific defect of a particular product, since spoliation cannot be remedied by examining another similarly flawed product.  Because the plaintiff in the instant matter alleges that the defendant acted negligently in regard to a particular product, the spare propane tank, and because the defense does not have the luxury of examining and testing a similar tank, prejudice to the defendant is severe.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

The types of sanctions that may be imposed for spoliation of evidence range from those that are less onerous, such as jury instructions (i.e., the jury should infer that the missing or destroyed evidence would have been unfavorable to the party responsible for its loss or destruction), to those that are more severe, such as preclusion of expert testimony, to summary judgment.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Attributing some fault to the plaintiff for failing to exert control over and preserve the subject tanks, and finding the decedent to be severely prejudiced by the unavailability of the evidence, the proper remedy is to preclude the testimony or the plaintiff's expert.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

STIPULATIONS

 

When parties place their stipulation of record during the trial, it becomes part of the record in the case and is binding on the parties.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

VOIR DIRE OF JURY

 

The court should sustain a challenge for cause which is raised by the defendant where the potential juror demonstrates his inability to be impartial or when the court can deduce a likelihood or prejudice because of a close relationship that the prospective juror has, be it familial, financial, or situational, with parties, counsel, victims or witnesses.  Commonwealth v. Ankeny, 52 Som.L.J. 95