Judge orders attorneys for Hess Corp. to turn over recorded employee statement in premises liability case

By Jon Campisi | Jul 18, 2013

Hess Corp. has been ordered to turn over a recorded statement by a Philadelphia gas

station employee to a plaintiff in a slip-and-fall case against the petroleum company.

On July 12, U.S. District Court Judge R. Barclay Surrick of the Eastern District of Pennsylvania granted a motion by Mary Mieloch seeking to compel Hess to produce a recorded interview statement by Austin Williams, who was operating the transaction booth at a Philadelphia Hess station on Dec. 8, 2010, when the woman allegedly injured herself after tripping and falling at the premises.

Court records show that Williams had been interviewed by a field investigator for the defendant’s insurance company about five weeks after the incident.

More than a year-and-a-half later, Mieloch filed a complaint against Hess at Philadelphia’s Common Pleas Court, a civil action that was later removed by the defense to the federal venue.

An attorney for Hess subsequently disclosed that he was in possession of Williams’s recorded statement, a piece of evidence that the plaintiff wanted to obtain, but one that was never turned over, the record shows.

Mieloch’s lawyers filed their motion to compel on May 26 of this year.

In her motion, Mieloch argued that the employee’s recorded statement does not qualify as work product because Hess had not yet retained legal counsel at the time that the statement was taken by the insurance company’s representative.

The defense counter-argued that the statement is not discoverable because it was taken in anticipation of litigation.

Surrick stated that he was not persuaded by the defense’s argument that Williams’s statement to the insurance investigator qualifies as material obtained in anticipation of litigation because lawyers for Hess were not present during the interview, and there is no indication that Hess had retained legal counsel at the time of the interview.

The judge wrote that Hess offered only “conclusory assertions that the interview was conducted by the investigator in anticipation of litigation; however, Defendant offers no factual support for this assertion. Defendant invites us to conclude that simply because an insurance investigator interviewed a witness after Plaintiff put Defendant on notice of the accident, the statement of that witness should be protected by Rule 26(b).”

The judge was referencing the federal Rule of Civil Procedure that permits broad discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense …”

Citing case law, Surrick noted that in assessing whether the privilege applies, the fact that the witness statement was obtained by an insurance carrier as opposed to a lawyer is not determinative.

Whether Hess had retained a lawyer at the time the gas station employee’s recorded statement was prepared is, in fact, relevant to the court’s determination, the judge wrote in his memorandum.

“There has been no representation that an attorney for Defendant was present during Mr. Williams’s interview, nor that the interview was conducted at the request of an attorney,” Surrick wrote. “Plaintiff asserts that Defendant had not even retained legal counsel in this matter until December 2012, almost two years after the interview of Mr. Williams. Defendant does not dispute this fact in its Response to Plaintiff’s Motion.”

In the end, the judge determined that because he found that the employee’s statement was not taken by the insurance investigator in anticipation of litigation, the court needn’t reach the question of whether Mieloch, the plaintiff, has shown a substantial need for the statement because that is irrelevant.

“The witness statement is not protected by the work product privilege and is discoverable,” Surrick wrote. “Defendant must produce the statement to Plaintiff.”

In her lawsuit, Mieloch claims she was injured after tripping and falling while walking across the lot of the Hess station toward the kiosk in order to pre-pay for her gasoline.

The station is located on the 6300 block of Oxford Avenue in Philadelphia, the same city where the plaintiff resides.

The woman claims she sustained injuries to her teeth and jaw, in addition to joint pain, a meniscus disclocation, contusions and other injuries.

The lawsuit was filed by Bala Cynwyd, Pa. attorney Bernard Edelson.

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