Elizabeth is a shareholder in the Health Care Department, where she delivers strategic defense counsel in medical and dental malpractice matters, as well as long-term care litigation. Elizabeth has successfully represented a wide range of health care professionals, including physicians, dentists, physician assistants, certified registered nurse practitioners and nurses, securing favorable outcomes in numerous complex malpractice cases, including at trial, binding arbitration, and in mediation. Additionally, she defends long-term and skilled care providers, such as assisted living, personal care, rehabilitation and skilled nursing facilities, against claims of negligence, malpractice, breach of contract and wrongful death. Elizabeth’s comprehensive understanding of health care law and dedication to client advocacy consistently result in successful outcomes for her clients.
Elizabeth also handles complex product liability cases, as well as catastrophic injury matters arising from construction and motor vehicle accidents. She has tried numerous cases to defense verdicts, and has secured dismissals for her clients on dispositive motions.
Elizabeth graduated cum laude from The George Washington University School of Law. She was awarded the American Bar Association/Bureau of National Affairs Award. She completed her undergraduate degree at the University of Pennsylvania, where she graduated cum laude and with distinction in her major of International Relations.
Thought Leadership
Defense Digest
On the Horns of a Trial Dilemma: Addressing a Prior Conviction on Direct Examination or Waiving the Right to Contest the Admissibility on Appeal
June 1, 2023
Key Points: A recent Superior Court case found the filing of an unsuccessful motion in limine to preclude a prior conviction does not preserve the issue on appeal if the defendant strategically chooses to then introduce the evidence on direct. A defendant must now choose whether to preserve the appellate right and allow the opponent to bring up the conviction, or seek to address it during direct, but lose the right to appeal. The recent Pennsylvania Superior Court case Commonwealth v. Stevenson, 287 A.3d 903 (Pa. Super. 2022), addressed the intersecting issues of how a party may preserve an adverse evidentiary ruling on a motion in limine for appellate review with the competing interests of the trial strategy that the party may seek to pursue as a result of the adverse ruling. Specifically, the Superior Court held that a criminal defendant who testified on direct examination regarding a prior conviction, after the trial court ruled the conviction was admissible pursuant to a motion in limine, waived the right to challenge that ruling because the defendant introduced the evidence himself. Raheem Stevenson, the defendant, was charged with robbery, burglary, and criminal conspiracy for events occurring on December 3, 2017. Stevenson had previously pled guilty to burglary in 2005. Pennsylvania Rule of Evidence 609 addresses the admissibility of prior criminal convictions for purposes of impeachment. While Pa. R.E. 609(a) allows for the impeachment of a witness with a prior crime involving dishonesty or false statements (crimen falsi) if that conviction or release from confinement is more than ten years old, as was the case in Stevenson, the court is required to conduct a balancing test weighing the probative versus the prejudicial value of admitting the prior conviction. Stevenson made an oral motion to preclude his prior conviction as too remote and, thus, too prejudicial. The court denied the motion. Stevenson was then faced with a common dilemma parties are faced with at trial: bring out the unfavorable evidence on direct examination in an attempt to lessen the impact, or wait to see if the opponent chooses to use the evidence on cross examination and risk appearing less than forthcoming to the jury. In this case, Stevenson chose to address the conviction on direct examination. He was subsequently convicted and, on appeal, claimed that the trial court improperly admitted the conviction without performing the appropriate balancing test. On appeal, however, the Superior Court first addressed whether the issue of admissibility was appropriately preserved because defendant had introduced the evidence himself on direct. In holding that the defendant did, in fact, waive the right to appeal the initial ruling on the motion in limine by testifying on direct examination about his conviction, the court relied upon the general proposition that a defendant who introduces evidence at trial cannot subsequently claim on appeal that such evidence was improperly admitted. The court also cited to the United States Supreme Court case, Oher v. U.S., 529 U.S. 753 (2000), which interpreted the Federal Rules of Evidence related to impeachment by prior criminal conviction, wherein a 5-4 majority held that a criminal defendant, by choosing to testify and to address a prior conviction on direct examination, was executing a trial strategy and, thus, waived the right to complain on appeal as to the admissibility of the prior conviction. The Stevenson ruling must now be taken into consideration for any witness with a prior criminal conviction a defendant intends to call on direct examination at trial. Strategically, a defendant can still file a motion in limine seeking to preclude the evidence. However, if that motion is denied, they will have to decide if the trial strategy of bringing the conviction out on direct overrides waiving the potential appellate issue. The ruling should also be taken into consideration when deciding whether or not to call a specific witness. Many case-specific factors will weigh into the decision, including how a jury may view the prior conviction, i.e., will the nature of the conviction likely prejudice the jury such that the appellate right is more importantly preserved, the likelihood of success on appeal, whether there are other facts that are admissible that will make testimony regarding the prior conviction more prejudicial or, conversely, that will cast a witness in a dishonest light if they do not bring the conviction out on direct? Further, a defendant should also consider withholding filing a motion in limine at all if it is unclear whether the opposing side is aware of the conviction or whether, in fact, they will seek to use the conviction. In this instance, a defendant can seek to rely on Pennsylvania Rule of Evidence 609(b)(2), which requires that, prior to the use of a conviction more than ten years old, the party seeking to introduce the evidence give the adverse party “reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” If notice was not given prior to the attempt to impeach, in addition to the admissibility objection, the defendant also can raise the procedural objection pursuant to Pa. R.E. 609(b)(2) in an attempt to keep the evidence out while simultaneously preserving the appellate issue. Ultimately, this is a consideration that must now be weighed for any witness with a prior conviction which the defense would normally seek to preclude as either: (1) not a crime of dishonesty or false statement admissible under Pa. R.E. 609(a); or (2) a conviction of more than ten years old where the prejudicial value outweighs any probative effect. *Beth is a shareholder in our Philadelphia, Pennsylvania, office. She can be reached at 215.575.2599 or EAUnderwood@mdwcg.com. Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
Defense Digest
Waiving the Right to Seek Arbitration: New Court Ruling Limits Parties’ Ability to Seek to Enforce Arbitration Clause
January 29, 2021
Key Points: A recent ruling in the Pennsylvania Superior Court limits the time for a party to seek to enforce an arbitration provision. A party must seek to enforce an arbitration provision before it seeks to obtain other favorable rulings from the court to prevent waiver of the right to seek arbitration. Waiver can occur even if the pleadings remain open if the parties have sought other rulings from the court prior to requesting arbitration. As a matter of public policy, the Courts of the Commonwealth of Pennsylvania continue to strongly favor the settlement of disputes by arbitration. However, a party wishing to enforce an arbitration provision can waive its right to elect arbitration if it does not promptly seek to enforce such a contractual provision. In the recent case DiDonato v. Ski Shawnee, Inc., 2020 WL 6280080 (Pa. Super. Oct. 27, 2020), the Pennsylvania Superior Court further clarified and limited the circumstances under which a party may seek to enforce an agreement to arbitrate. Specifically, the Superior Court found that two defendants who sought to enforce an arbitration agreement contained within an enrollment contract for the defendant, Blair Academy, signed by the decedent’s mother, waived their right to assert arbitration because they participated in the judicial process, particularly by attempting to obtain favorable rulings from the court prior to seeking to enforce the arbitration agreement. Specifically, in DiDonato, the plaintiff, Ruth DiDonato, administratrix of the estate of J.D., a minor, initiated a lawsuit in the Court of Common Pleas of Philadelphia County against the defendant, Ski Shawnee, and defendants Blair Academy and John Padden (the Academy defendants), arising from a skiing accident that resulted in the death of a student at Blair Academy. In response to the complaint, the Academy defendants and Ski Shawnee filed preliminary objections as to venue, alleging that venue in Philadelphia County was improper and that the case should be transferred to the Monroe County Court of Common Pleas. The Academy defendants did not raise the existence of a contract requiring the arbitration of the plaintiffs’ claims in their preliminary objections. Thereafter, both the Academy defendants and Ski Shawnee entered into a stipulation with the plaintiff to strike certain paragraphs and claims from the complaint. Further, while the preliminary objections were pending, the Academy defendants filed a petition for removal to the United States District Court for the Eastern District of Pennsylvania. Ultimately, the District Court ruled that removal was improper and remanded the case to state court. Upon remand, the parties engaged in discovery limited to the issue of venue raised in both defendants’ preliminary objections. During this discovery period, the Academy defendants did not produce the enrollment contract in response to a request for “any document which refers, relates to or evidences any communication between you and [Decedent].” Approximately nine months after the complaint was filed, the Philadelphia Court of Common Pleas granted the preliminary objections as to venue and transferred the case to the Court of Common Pleas of Monroe County. Upon transfer to Monroe County, prior to filing an answer to the complaint, the Academy defendants filed a motion to sever and to compel arbitration. In their motion, for the first time, the Academy defendants produced and sought to enforce the enrollment contract which contained a clause requiring any and all claims against the Academy defendants to be resolved in arbitration. The Academy defendants also filed an answer, raising the arbitration clause in its new matter. The plaintiff opposed the motion to compel arbitration, arguing, among on other grounds, that the defendant waived the right to arbitration by waiting nearly a year to raise the issue. The trial court granted the motion, in part, compelling the estate’s survival claim and the mother’s wrongful death claim against the Academy defendants to arbitration. On appeal, the Pennsylvania Superior Court reversed, holding that the Academy defendants waived their right to assert the arbitration clause because of their delay in seeking arbitration. Despite the public policy in favor of arbitration, the court noted that when “a party avails itself of the judicial process,” including by attempting to win favorable rulings through the courts, that party waives the right to assert and enforce an arbitration provision. The court set forth the following factors to assess whether a party has availed itself of the judicial process such that the right to arbitration is waived, specifically, whether the party: (1) failed to raise the issue of arbitration promptly; (2) engaged in discovery; (3) filed pretrial motions that do not raise the issue of arbitration; (4) waited for adverse rulings on pre-trial motions before asserting arbitration; or (5) waited until the case is ready for trial before asserting arbitration. O’Donnell v. Hovanian Enterprises, Inc., 29 A.3d 1183, 1187 (Pa. Super. 2011). Of significance for the court was the Academy defendants’ use of court proceedings in an apparent attempt to gain a strategic advantage in the case, specifically by: (1) filing preliminary objections as to venue; (2) seeking to remove the case to federal court; and (3) entering stipulations to dismiss various counts within the complaint prior to raising the issuing of arbitration. Further, the court was troubled by the fact that the Academy defendants had not produced, cited to, or in any way referenced the enrollment contract containing the arbitration provision for nearly a year, until they attached it to their motion to compel arbitration. Although the court rejected the plaintiff’s argument that the failure to raise the arbitration provision in preliminary objection, as a matter of law, waives the defendants’ right to assert arbitration, the Superior Court stressed that, in this case, the totality of the defendants’ actions as described above—requiring the plaintiff to extensively litigate the removal and venue issues prior to the defendant raising the claim for arbitration, prejudiced the plaintiff such that a waiver was warranted. Given the ruling in DiDonato, it is imperative to assess at the very beginning of the litigation whether an applicable arbitration provision exists and to make the strategic assessment whether to raise the provision or to proceed in court. The decision to assert an arbitration provision cannot be considered a “back-up” strategy prior to other legal maneuverings, as courts are likely to rule that the party has waived the right to assert the arbitration provision if it is not raised as the primary defense to a complaint. *Beth is a shareholder in our Philadelphia, Pennsylvania office. She can be reached at (215) 575-2599 or eapope@mdwcg.com. Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
