Judges Opinions, — August 15, 2023 13:43 — 0 Comments

Maria Garcia, Administratix of the Estate of B.G., v. Aman Soin and Kevin’s Towing and Repair, LLC

Maria Garcia, Administratix of the Estate of B.G., v. Aman Soin and Kevin’s Towing and Repair, LLC

 

Civil Action-Law-Wrongful Death-Death of Child-Vehicle Collision-Discovery-Scope-Relevance-Disclosure-Lost Future Earning Capacity-Records of Parents-Medical Records-Educational Records-Employment Records

 

Maria Garcia (“Plaintiff”) filed a wrongful death and survival action against Aman Soin (“Defendant”) after her eleven (11) year old son (“Decedent”) died as a result of a collision between a scooter operated by her son and a truck operated by Defendant.  During discovery, Plaintiff provided an assessment of employment potential and wage earning capacity of Decedent by a vocational expert.  Defendant subsequently issued a Notice of Intent to Serve Subpoenas upon entities employing Decedent’s parents and Lebanon Career and Technology Center where Plaintiff had trained.  Plaintiff objected to the information sought through a Motion for Protective Order.

 

  1. All parties are granted liberal rights to pretrial discovery.

 

  1. Pa.R.C.P. Rule 4003.1 provides that discovery must be permitted if it seeks relevant information or leads to the possible discovery of relevant information.

 

  1. Even clearly inadmissible evidence is discoverable if it reasonably could be calculated to lead to the disclosure of relevant evidence that could be admissible.

 

  1. If a conflict about discovery arises, the trial court should err on the side of disclosure.

 

  1. In a case alleging a negligently caused death, a decedent’s estate may seek damages for lost future earning capacity.

 

  1. In a case where a child is entitled to uncertain future lost damages, a reasonable basis from which to calculate those damages is application of a parent’s objective criteria.

 

  1. Behavior and achievement of parents can be a predictor of achievement by children.

 

  1. Parental health history always is a topic that is part of an individual’s medical history because the medical profession has recognized that certain health problems are inherited and a person’s risk profile always is affected by genetics.

 

  1. Inquiries into the health history of Decedent’s parents relating to genetically transferred diseases, the level of achievement obtained by Decedent’s parents in school and where and how long Decedent’s parents worked at various jobs are relevant in determining future earning capacity of Decedent.

 

L.C.C.C.P. No. 2019-00237, Opinion by Bradford H. Charles, Judge, September 20, 2022.

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

                                                                     

MARIA GARCIA, Administratrix of the :

Estate of B.G.,                                         :

Plaintiff                                            :

                                                                   :

  1. :        2019-00237

                                                                   :

AMAN SOIN and KEVIN’S TOWING       :

AND REPAIR, LLC,                                 :

Defendants                                                :       

                                                                   :

                                                         

ORDER OF COURT

 

 

AND NOW, this 20th day of September, 2022 in accordance with the attached Opinion, the Order of this Court is as follows:

  1. The Defendant shall be permitted to undertake discovery regarding personal circumstances of both parents of B.G. To the extent that the Plaintiff wishes to quash the subpoenas issued by the Defendant for information from B.G.’s parents’ employers, schools and medical providers, said request will be DENIED.
  2. The information sought via the subpoenas will be limited as set forth in the attached Opinion. The Defendant shall not be permitted to access personal and irrelevant information pertaining to B.G.’s parents.  To accomplish the redactions necessary to effectuate this directive, counsel shall work together in order to ensure that irrelevant requests and information sought by Defendant’s subpoenas will be redacted from the scope of what is produced via the subpoenas.  If counsel cannot agree upon language of a revised subpoena, counsel may submit their dispute to this Court.  However, both counsel shall use their best efforts to resolve any issue concerning the language of a subpoena before submitting the issue to this Court.

 

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

cc:     Court Administration (order only)

Edward Coyle, Esq.// 525 S. 8th Street, PO Box 49, Lebanon PA 17042

George Eager, Esq.// 1347 Fruitville Pike, Lancaster PA 17601

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

MARIA GARCIA, Administratrix of the :

Estate of B.G.,                                         :

Plaintiff                                            :

                                                                   :

  1. :        2019-00237

                                                                   :

AMAN SOIN and KEVIN’S TOWING       :

AND REPAIR, LLC,                                 :

Defendants                                                :       

                                                                   :

APPEARANCES:

 

Edward Coyle, Esq.                                FOR Plaintiff                                                                                                                                                      

George Eager, Esq.                                 FOR Defendant SOIN

 

OPINION BY CHARLES, J.,  September 20, 2022

Before us is a discovery dispute in a case involving the death of an 11-year old boy.  The Defendants seek extensive discovery pertaining to the health, education and work history of the deceased boy’s parents.  Plaintiff alleges that the information sought is largely irrelevant to the parties’ dispute.  As with many discovery disputes, we conclude that a result somewhere between the polarized position of the parties is appropriate.

 

 

  1. FACTS and BACKGROUND

On July 2, 2018, 11-year old B.G. was utilizing a scooter in the City of Lebanon.  The scooter and a vehicle driven by Aman Soin collided.  Tragically, 11-year old B.G. died as a result of this collision.  The boy’s mother, Maria Garcia, initiated a wrongful death and survival action on February 14, 2019.

During the discovery phase of the litigation, Plaintiff provided Defendant with an assessment of employment potential and wage earning capacity authored by vocational expert John Risser.  Mr. Risser opined that B.G. would suffer future loss of earnings between $1.5 million and $3 million.

On April 18, 2022, Defendant issued a Notice of Intent to Serve Subpoenas upon the entities that employed B.G.’s parents and upon the Lebanon Career and Technology Center, where B.G.’s mother received training.  Defendant sought a panoply of records, including the following:

  • The job application submitted by both of B.G’s parents;
  • Any employment disciplinary records;
  • Payroll records;
  • The entire scholastic file of B.G.’s mother;
  • School and work attendance records;
  • School and work disciplinary records;
  • Work performance reviews;
  • Records regarding termination from employment.

Although the subpoenas themselves did not request medical records, the parties’ briefs make clear that Defendant desires medical history information pertaining to B.G.’s parents and the parents oppose this request based upon the privilege granted by HIPAA laws.

We issue this Opinion to address the interesting question presented by the parties.  Initially, we will outline Pennsylvania law that affords liberal discovery rights to litigants in civil cases.  Thereafter, we will discuss the unique challenges presented by claims for lost earning capacity of an individual who has no work history.  We will end by outlining our conclusion regarding the permissible scope of discovery where parents make a claim for lost earning capacity of a deceased child.

 

  1. DISCUSSION
  2. General Rules Regarding Discovery

To the extent that litigation can be considered a test, it is an open book one.  As it relates to civil litigation, Pennsylvania abhors trial by ambush.  All parties are therefore granted liberal rights to pre-trial discovery.

The general test for discovery in Pennsylvania is outlined by Pa.R.C.P.4003.1: Discovery must be permitted if it seeks relevant information or leads to the possible discovery of relevant information.  See, e.g. Klovensky v. Moore, 2002 WL 31932483, Franklin County, July 18, 2002; Com. ex rel. Pappert v. TAP Pharmaceutical Products, Inc., 904 A.2d 986, (Pa. Cmwlth. 2006).  Admissibility at trial is not the standard by which discovery requests are judged.  Even clearly inadmissible evidence is discoverable if it could be reasonably calculated to lead to the disclosure of relevant evidence that could be admissible. Parchman v. DeFelice, 2005 WL 4781693, Lawrence County, October 19, 2005; PECO Energy Co. v. Insurance Co. of North America, 852 A.2d 1230 (Pa. Super. 2004).  Effectively, Pennsylvania’s Courts have long declared that if a conflict about discovery arises, the trial court should err on the side of disclosure.  See, e.g. Fraternal Order of Police Lodge No. 5 by McNesby v. City of Philadelphia, 267 A.3d 531 (Pa. Cmwlth. 2021).

  1. Claim for a Decedent’s Future Lost Earning Capacity

In a case involving negligently-caused death, the decedent’s estate can seek damages for lost future earning capacity.  See, e.g. 42 Pa. C.S.A. § 8302.  In most cases, loss of future earnings can be gauged by examining a decedent’s past earnings.  By examining those past earnings and with expert testimony to help assess future personal maintenance expenses, juries are able to rely on a set of metrics that is understandable and relatively concrete.  However, as it relates to children who have no work or earnings history, the job of a jury to assess earning capacity is infinitely more difficult.

Pennsylvania’s Appellate Courts have recognized the dilemma created by this issue.  Our Commonwealth’s highest court has recognized that loss of future earnings can rarely be calculated “with mathematical precision and exactness.”  Helpin v. Trustees of University of Pennsylvania, 10 A.3d 267, 270 (Pa. 2010).  As it relates to future earnings of a child, our Superior Court has stated: “It is particularly difficult to project future wage loss of a deceased child, as in this case, but this item of damages has not been denied by any court because of the problems of the youth involved.”  Mecca v. Lukasic, 530  A.2d 1334, 1339-1340 (Pa. Super. 1987).

The case of Greer v. Bryant, 621 A.2d 999 (Pa. Super. 1993) is instructive.  Greer involved the death of a newborn child.  Obviously, that child had no history that could support an award of damages for future lost earnings.  Because of this, the defense objected to expert testimony presented regarding loss of future earning capacity.  The Superior Court rejected the defense argument.  The Court stated:

“As the Trial Court noted, in a case where an infant is entitled to uncertain future lost damages, a reasonable basis with which to calculate the factor is with the mother’s objective criteria.  The only alternative, precluding an infant from proving such damages in the context of a survival action brought by her parents, would ignore the economic reality that the child possessed potential earning capacity.  Projecting that child’s productivity potential on a plane equal to that of her parent is certainly more “proper” than ignoring that potential altogether.”

Id at page 1005

 

            The case of Mecca v. Lukasic, 530 A.2d 1334, 1339-1340 (Pa. Super. 1987) is similar.  Mecca involved the deaths of two teenagers.  The defense objected to projections of future lost wages as “mere guess or speculation”.  The Superior Court disagreed.  The Superior Court cited testimony from family members about the dreams and aspirations of the two deceased teens.  The Superior Court stated:

“The testimony on which Dr. Reevy based his projections was more than the dreams of each teenager as supported by his or her parents at trial.  Testimony was also given by the parents concerning their own stations in life and that of the respective siblings.”

Id at page 1340 (emphasis supplied).

 

Based in part upon this analysis, the Superior Court denied the defendant’s argument based upon speculation.

In Slavin v. Gardner, 418 A.2d 361 (Pa. Super. 1979), the Court affirmed a judgment that awarded future lost earnings projected for a deceased two and one-half year old.  Among the factors cited were: “Decedent’s father was a sales engineer earning $1,600 per month, and her mother intended to return to work once her youngest child reached school age.  Both parents expected their child to attend college and, in light of their background and station in life, we do not think the hopes and aspirations they held for their daughter were unreasonable.” Id at page 364.

See also, Vanaukaen v. Saud, C.P. Lackawanna County, No. 20 CV-4717 (Nealon, J. April 29, 2022) (“In calculating future lost of earnings for a deceased minor, it is appropriate to consider the educational background and employment history of the decedent’s parents and siblings, as well as the decedent’s expressed vocational aspirations.” Slip Opinion at page 14).

  1. Analysis

Based upon everything outlined above, we conclude that the jury selected to assess earning capacity of B.G. should have some information about B.G.’s parents.  A reality of human existence is that children will model behavior exhibited by their parents.  While it is certainly true that children are not guaranteed success or doomed to fail simply because their parents are well-adjusted or dysfunctional, there is consensus among researchers that behavior and achievement of parents can be a predictor of achievement by children.  See, e.g., Eric F. Debow, Long-Term Effects of Parents’ Education on Children’s Education and Occupational Success… National Institutes of Health, https://pubmed.ncbi.nlm.nih.gov/20390050/ (2009) (“Parents’ educational level when the child eight years old significantly predicted educational and occupational success for the child forty years later.”); Clearinghouse for Military Family Readiness at Penn State, Parents’ educational levels influence on child educational outcomes, found at www.militaryfamilies.psu.edu (2020) (“Child behavior is shaped by observation and direct learning experiences.  When parents model achievement-oriented behavior…and provide opportunities for their children to engage in achievement-oriented experiences…, those children develop the belief that achievement-oriented behavior is valued and expected.” (Citations omitted)).

From a standpoint of health, parents’ genetics also play an important role in the health of their children.  Parental health history is always a topic that is part of an individual’s medical history because the medical profession has recognized for years that certain health problems are inherited and that a person’s risk profile is always affected by his/her genetics.

Recognizing the realities outlined above compels this Court to afford some latitude to a defendant charged with the difficult task of combatting the claim of a plaintiff’s expert regarding future lost earnings of a child.  That said, we cannot endorse an invasive inquiry into all details of a parent’s life.  We can certainly think of questions that might be asked more as a tool of harassment than as a means to gauge a child’s future abilities and proclivities.  For example, should a defendant know whether a child’s parent contracted an STD?  Should a defendant know if a parent violated a work rule during an isolated incident?  Should a defendant know if a parent experimented with marijuana or committed a traffic violation?  Should a defendant know a parent’s disciplinary record when he/she was enrolled decades earlier in a school?  As to all of the above questions, we would respond: “Not necessarily!”

As it relates to the issue now before this Court, we believe that the Defendant should be entitled to receive basic information about B.G.’s parents.  For example, the Defendant should be able to ask questions and obtain documentation regarding the health history of B.G.’s parents as it relates to genetically transferred diseases such as high blood pressure, high cholesterol, heart disease, cancer, etc.  The Defendants should not be entitled to receive information regarding transient medical issues that are not likely to be genetically transferred, such as broken bones, gynecological issues, injuries caused by trauma, etc.  As it relates to education, the Defendants should be able to obtain documents and ask questions regarding the level of achievement obtained by parents in school, including the identity of the schools from which the parents graduated and the identity of any schools at which the parents matriculated but did not finish.  However, the Defendants should not be able to ask about disciplinary actions taken against the parents in school, nor do we think that the specific grades in specific classes have enough of a bearing on B.G.’s future earnings to cause them to be relevant.[1]  As it relates to employment, certainly the parents’ employment history is relevant.  As outlined above, parents who model work ethic generally see their own children become adults who work to support their own families.  On the other hand, parents who are lazy model torpescence as a way of life.  The questions of when, where and for how long parents work at various jobs is an area of inquiry that we will permit.  However, no human being is perfect.  Every worker will make mistakes and experience reprimands.  So long as the mistake/reprimand does not rise to the level of being habitual or causing termination, we perceive minimal relevance to such information.

We will not list question by question what we will and will not permit. It is not our intent to micromanage discovery in this case.  Both counsel in this case are experienced and capable.   Our hope is that the words we have written above will provide everyone with bookends that they can use to create a library of information necessary to try this case.[2]  For today, we will deny the Plaintiff’s Motion for Protective Order to the extent that it seeks to exclude subpoenas to the entities in question.  However, we will limit the extent of information that can be accessed from those subpoenas as outlined above.  An Order to accomplish these decisions will be entered today’s date.

 

 

[1] We perceive some relevance if a parent graduated with honors or used more that “traditional” time to graduate, so aggregate grade point averages could be discoverable.

[2] To be clear, this Court will not be happy if we are required to undertake a question by question analysis because the parties cannot agree upon those questions.

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