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

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

Superior Court of Pennsylvania

August 28, 2019, Argued; February 20, 2020, Filed

No. 677 EDA 2019

Opinion

 [*986]  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 [**2]  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.

 [*987]  Q: Did you write anything on your copy of the chart?

A: I believe I did.

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229 A.3d 984 *; 2020 Pa. Super. LEXIS 143 **; 2020 PA Super 42; 2020 WL 830016

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

Subsequent History: Later proceeding at Ford-Bey v. Prof'l Anesthesia, 2020 Pa. Super. LEXIS 180 (Pa. Super. Ct., Mar. 5, 2020)

Rehearing denied by Ford-Bey v. Prof'l Anesthesia Servs., 2020 Pa. Super. LEXIS 380 (Pa. Super. Ct., May 4, 2020)

Appeal denied by Ford-Bey v. Prof'l Anesthesia Servs. of N. Am., LLC, 2020 Pa. LEXIS 6392 (Pa., Dec. 21, 2020)

Prior History:  [**1]  Appeal from the Order Entered January 14, 2019. In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2017-02996. Before JEFFREY S. SALTZ, J.

CORE TERMS

attorney-client, communications, trial court, mental impressions, work-product, deposition, chart, privileged, discovery, reconsideration motion, handwritten note, disclosure, invoked, preparation, no evidence, advice of counsel, legal advice, new evidence, anticipation

Civil Procedure, Appeals, Appellate Jurisdiction, Evidence, Privileges, Standards of Review, De Novo Review, Privileges, Attorney-Client Privilege, Discovery, Privileged Communications, Work Product Doctrine, Attorney-Client Privilege, Scope, Elements, Burdens of Proof, Burden Shifting, Work Product Doctrine, Scope of Protection