BACHNER v. FIRSTENERGY CORP. et al
Filing
116
MEMORANDUM ORDER denying 100 defendants' motion to compel the written report of Michael Kline. All as more fully set forth in the Memorandum Order. Signed by Judge David S. Cercone on 6/11/21. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALISA M. GORCHOCK, as
Administratrix of THE ESTATE OF
JOHN M. GORCHOCK and In Her
Own Right,
Plaintiff,
v.
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
MASCARO CONSTRUCTION
COMPANY LP D/B/A MASCARO
CONSTRUCTION COMPANY, and
MASCARO SERVICES, INC.,
Defendants,
and,
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
and FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
Third-Party Plaintiffs,
v.
ENERFAB, INC.,
Third-Party Defendant.
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KERRI ANN BACHNER as
Administratrix of THE ESTATE OF
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2:17cv1496
Electronic Filing
KEVIN BACHNER and In Her
Own Right,
Plaintiff,
v.
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
MASCARO CONSTRUCTION
COMPANY LP D/B/A MASCARO
CONSTRUCTION COMPANY, and
MASCARO SERVICES, INC.,
Defendants,
and,
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
and FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
Third-Party Plaintiffs,
v.
ENERFAB, INC.,
Third-Party Defendant.
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2:17cv1497
Electronic Filing
-----------------------------------------------------THOMAS CANTWELL,
Plaintiff,
v.
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
MASCARO CONSTRUCTION
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2:17cv1499
Electronic Filing
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COMPANY LP D/B/A MASCARO
CONSTRUCTION COMPANY, and
MASCARO SERVICES, INC.,
Defendants,
and,
FIRSTENERGY CORP.,
FIRSTENERGY GENERATION LLC,
and FIRSTENERGY GENERATION
MANSFIELD UNIT 1 CORP.,
Third-Party Plaintiffs,
v.
ENERFAB, INC.,
Third-Party Defendant.
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MEMORANDUM ORDER
AND NOW, this 11th day of June, 2021, upon due consideration of the First Energy
defendants’ motions to compel the written report of Michael Klein and the parties’ submissions
in conjunction therewith, IT IS ORDERED that the motions be, and the same hereby are, denied.
A party generally cannot discover the “facts known or opinions held” by an expert who
has been retained by an opposing party where that expert is not expected to be called as a witness
at trial. Fed. R. Civ. P. 26(b)(4)(D). It is undisputed that Michael Kline was been retained by
plaintiff to author a certificate of merit regarding the claim of professional negligence against
Mascaro Construction, LP,/Mascaro Services, Inc., and he is not expected to testify at trial.
Thus, any report or writing he may have prepared for plaintiffs’ counsel’s benefit as part of
plaintiffs’ preparing and filing of a certificate of merit under Pennsylvania Rule of Civil
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Procedure 1042.3 is protected from disclosure. Defendants do not contend otherwise. Instead,
they argue that plaintiffs have waived any protections afforded by Rule 26(b)(4)(D) by placing
the substance of Michael Kline’s assessment and resulting certificate of merit “at issue.”
Plaintiffs purportedly did so in their opposition to the First Energy defendants’ assertion of
fraudulent joinder.
It is settled that a party does not place privileged information “at issue” by simply
referring to or highlighting the existence of a privileged communication. Rhone–Poulenc Rorer,
Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994). Instead, a party waives a privilege
where it selectively describes some specific aspect or detail of the communication and then seeks
to advance a legal position by reliance on the specifically disclosed aspect of the communication.
Id. For example, in a patent case where the defendant denies an allegation of willful
infringement, the mere fact that the defendant has denied willfulness does not place any previous
communications with or advice of counsel at issue. Id. Although the prior advice of counsel
may be relevant to the issue of whether the defendant acted with a willful state of mind, “the
advice of the infringer's counsel is not placed in issue, and the privilege is not waived, unless the
infringer seeks to limit its liability by describing that advice and by asserting that he relied on
that advice.” Id.
A careful and reflective review of each instance wherein plaintiffs are purported to have
relied on the substance of any report or written assessment underlying the certificate of merit
reveals that plaintiffs have not divulged anything more than the information that must be
disclosed in complying with Pennsylvania Rule of Civil Procedure 1042.3. Filing a Certificate
of Merit constitutes a representation to the tribunal and the other parties that 1) a licensed
professional has supplied a written statement indicating there exists a reasonable probability that
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the care, skill or knowledge exercised by the defendant with regard to the subject of the work or
practice in question fell outside the acceptable professional standards and 2) such conduct was a
cause in bringing about the harm for which relief is sought. Crawford .v McMillan, 660 F.
App’x 113, 116 (3d Cir. 2016) (quoting Pa. R. Civ. P. 1042.3). Pennsylvania Rule of Civil
Procedure 1042.3 has been deemed to be substantive law under the Erie doctrine. LiggonRedding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). Compliance with the Rule is
designed to “prevent[] needless waste of judicial time and resources which would otherwise be
spent on non-meritorious claims.” Id.; see also Womer v. Hilliker, 908 A.2d 269, 275–76 (Pa.
2006).
Advocating that a licensed professional has supplied a written statement that satisfies
Rule 1042.3 is inherit in the filing of a Certificate of Merit. And reasserting the same and
advancing the general inferences that can be drawn from the acquisition of such a statement is
distinct from advancing an aspect of the specific content or foundations within the statement
itself. Although the existence of the Certificate of Merit repeatedly is referenced in opposition to
defendants’ contention of fraudulent joinder, plaintiffs have not delved into or relied upon the
underlying substance of Engineer Klein’s written statement. Indeed, after careful review of each
instance of waiver advanced by defendants, the court cannot form a substantive assessment of
the bases or contents of the statement that is not readily apparent from a review of the Amended
Complaints. The only thing that is established is that the statement was supplied in conjunction
with the Amended Complaints; it complies with Rule 1042.3; and such a statement undercuts
defendants’ contention that Mascaro Construction, LP/Mascaro Services, Inc., has been
improperly joined in an effort to defeat removal diversity under 28 U.S.C. § 1332. Of course,
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each of these propositions flows from the filing of the Certificate of Merit itself and the
accompanying disclosures mandated by compliance with Rule 1042.3.
It follows that the record fails to support the defendants’ contention of waiver.
Accordingly, their motions to compel properly have been denied.
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc:
David L. Kwass, Esquire
Elizabeth Bailey, Esquire
Richard Urick, Esquire
Brad D. Trust, Esquire
Kathy K. Condo, Esquire
Matthew R. Divelbiss, Esquire
Daniel R. Michelmore, Esquire
Michael P. Leahey, Esquire
Joshua S. Snyder, Esquire
Seth P. Hayes, Esquire
Mark R. Lane, Esquire
(Via CM/ECF Electronic Mail and Email)
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