Judge Nealon Addresses Two Schools of Thought Defense in Med Mal Case

In his recent decision in the case of Cosklo v. Moses Taylor Hospital, et.al., No. 2007-C-5484 (C.P. Lacka. Co. Sept. 23, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Motion to Amend its Answer and New Matter to the Plaintiff’s Complaint.  

According to the Opinion, the Defendant filed this Motion after the completion of discovery, the production of the parties’ expert reports, and the establishment of a date certain for trial.   The Defendant sought leave of court under Pa. R.C.P. 1033 to amend his responsive pleading to assert the “two schools of thought” doctrine as an affirmative defense and to pursue a crossclaim against the Co-Defendants in this obstetrical malpractice action.  

Judge Nealon noted that, under the Rules of Civil Procedure and applicable Pennsylvania law, the amendment of a pleading should be liberally allowed by the court unless it will cause unfair prejudice to an adverse party or the proposed amendment would be against a rule of law such that the parties seeking to amend will be unable to state a cognizable claim or defense based upon the amendment.

The court noted that the “two schools of thought” defense is available to a physician at trial only if there is expert evidence that a considerable number of recognized and respected physicians support the course of treatment that was provided by the defendant.  

Reviewing the record before him, Judge Nealon noted that the defense expert’s report did not provide notice to the Plaintiffs that the expert will claim that the medical care which the Defendant physician chose to provide is advocated by a considerable number of recognized and respected obstetricians.   Accordingly, the court noted that any “two schools of thought” evidence would be subject to being precluded under Pa. R.C.P. 4003.5(c).  

Consequently, the court ruled that, since the Motion to Amend was presented after the deadline for the production of expert reports, and given that the Defendant physician is presently unable to assert a “two schools of thought” defense based upon the existing record, the Motion to Amend seeking to raise that defense was found to be against rule of law and was, therefore, denied.  

However, the court further ruled that, since the Co-Defendants had not identified any prejudice that they would suffer from the belated assertion of this type of a crossclaim, the Motion to Amend was granted to the extent that it sought to assert a crossclaim against the Co-Defendants. 

 

Anyone wishing to review a copy of this decision may click this LINK.

Cross-Examination of Life Care Planning Expert on Affordable Care Act Precluded by Collateral Source Rule

In his recent decision in the case of Bernheisel v. Mikaya, No. 3:13-cv-01496 (M.D. Pa. Aug. 9, 2016 Mariani, J.), Judge Robert D. Mariani addressed a number of Pre-Trial Motions in Limine filed by Defendants in this medical malpractice action including a request for a bifurcation of trial and motions seeking to preclude and limit medical expense and future economic damages claims.  

The Opinion is notable with respect to Judge Mariani’s recitation and application of Federal Rule of Civil Procedure 42(b) pertaining to motions to bifurcate trials.   Here, the Defendants requested a bifurcation of the liability issues from the damages issues.   Using his broad discretion on the matter, Judge Mariani denied this motion.  

With regards to the Motions pertaining to the economic damages claims, Judge Mariani ruled, in part, that he would defer ruling on the Defendant’s Motions relative to the Plaintiff’s medical cost claims until the time of trial.   The Court did generally note that Pennsylvania law requires the Plaintiff to produce evidence which establishes this type of claim with reasonable certainty and does not require the Plaintiff to establish a precise amount of damages.  

The Defendants also sought the permission of the court to cross-examine the Plaintiff’s life care planning experts on the future medical expenses claims by crossing the expert and introducing evidence pertaining to Medicaid, Medicare, and the Affordance Care Act.  

Judge Mariani, citing, in part, to the case of Deeds v. University of Pennsylvania Medical Center, noted that the collateral source rule precludes counsel from pursuing certain inquiries, including raising an individual’s access to Medicare, Medicaid, and benefits under the Affordance Care Act when opposing a future medical expenses claim.  

As such, the court in Bernheisel precluded the defense from cross-examining the Plaintiff’s life care planning expert on these issues.  

Anyone desiring a copy of this decision may click this LINK.

To review the February 9, 2015 Tort Talk post on the Deeds v. University of Pennsylvania Medical Center case, which contains a Link to that decision, click HERE.

The prevailing Plaintiff’s attorney in this matter was Attorney Max Kennerly, Esquire of the Philadelphia law firm of Kennerly Loutey, LLC.  I send thanks to Attorney  Michael A. O’Donnell of the Kingston, Pennsylvania O’Donnell Law Offices for bringing this decision to my attention.   

Another Dauphin County Order Compelling Production of Virtual Surveillance (Facebook Info, etc.) Before Deposition of Plaintiff is Completed

The Dauphin County Court of Common Pleas has issued another decision compelling a defendant to produce virtual surveillance, i.e. online surveillance of a plaintiff's social media activity on Facebook, Instagram, etc, prior to the deposition of the plaintiff.  The Order only was handed down in the case of Appleby v. Erie Ins. Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, 2016 Dowling, J.).

In the Order the court again also held that any ordinary surveillance completed of the Plaintiff need not be produced until after the deposition was completed.

Anyone wishing to review this Order may click this LINK.

The other Tort Talk posts on the other previous Dauphin County decisions in other cases in this regard, along with Links to those decisions can be viewed HERE and HERE.

I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.

Lackawanna Trial Court Grants Motion to Preclude Cumulative Expert Opinion Testimony in Med Mal Case

In his decision in the case of Oscarson v. Moses Taylor Hospital, et.al., No. 2013-CV-1523 (C.P. Lacka. Co. Aug. 26, 2016 Nealon, J.), the court addressed a Plaintiff’s Motion In Limine seeking to limit alleged cumulative expert testimony in a medical malpractice litigation.  

By way of background, this medical malpractice litigation involved claims against various Defendants under allegations that a doctor interpreted the results of a needle biopsy as malignant, after which the Plaintiff underwent various surgeries only to allegedly find out from post-operative pathology studies that the surgical specimens were non-malignant.  

In a Pre-Trial Motion In Limine to preclude cumulative medical expert testimony, the Plaintiff sought to bar separate Defendants from presenting the expert testimony of two (2) separate pathologists at trial.   The Defendant countered with an argument that there is no requirement that multiple Defendants in an action must share or utilize the same standard of care expert in their defense.  

Judge Terrence R. Nealon
Lackawanna County

After his review of the issues presented and applicable Rules of Evidence and law related thereto, Judge Nealon noted that the expert pathologists at issue expressed essentially identical opinions from the same clinical perspective as pathologists.  

The court also noted that this litigation did not involve separate claims against multiple pathologists who could be jointly or severally liable for their independent negligence.  

Ultimately, the court found that there is no need for the separate Defendants to offer duplicate expert testimony of the same character from the same clinical perspective.  

The court found that allowing such evidence would result in the needless presentation of cumulative evidence in violation of Pa. R.E. 403.  

In so ruling, the court noted that testimony by medical experts with different specialties and different clinical perspectives would have presented a different scenario and would have been regarded as corroborative, rather than needlessly cumulative evidence.  

Overall, the court granted the Plaintiff’s Motion In Limine to preclude cumulative medical expert testimony under the circumstances presented in this matter.  

Anyone wishing to review this Opinion by Judge Nealon in the Oscarson case may click this LINK.

Lunchtime is Your Time

Here's an article I came across that I thought would be worth sharing that gives ideas as to what successful people do with their lunch hour.  The article "12 Things Successful People Do During Their Lunch Break" by Jacquelyn Smith and Yu Han from the Business Insider.com (9/26/16) can be read HERE.

(Image copied from the online article)

Summary Judgment Granted in Fall Down Steps Case

In the Lehigh County Court of Common Pleas decision of Vasilik v. Voipoch, No. 2015-CV-904 (C.P. Leh. Co. June 7, 2016 McGinley, J.), the court entered summary judgment in favor of an out of possession landlord Defendant in negligence action involving a slip and fall on steps allegedly due to a lack of a handrail.    

In so ruling, the court noted that the language of the commercial lease permitted the landlord to make repairs but did not require him to do so.  

The court otherwise noted that the landlord did not undertake to make general repairs to the premises by previously installing a handicap ramp, paving the parking lot, installing landscaping, and/or installing a handrail between other floors as such improvements were note deemed to establish a general undertaking of property repair.  

Anyone wishing to review this decision may click this LINK.

Source:  “Court Summaries,” Pennsylvania Bar News (August 22, 2016) By Timothy L. Clawges.  

Superior Court Reaffirms Requirement of Expert Medical Evidence to Support Intentional Infliction of Emotional Distress Claims

In the case of Gray v. Huntzinger, No. 1882 EDA 2015, 2016 Pa.Super. 194 (Pa.Super. Aug. 30, 2016 Gantman, P.J., Lazarus, J., and Platt, J.)(Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court erred by not entering a JNOV in favor of a defendant on the Plaintiff's intentional infliction of emotional distress claim.

This case arose out of incidents related to the termination of the Plaintiff from his employment.

The Superior Court noted that the Plaintiff failed to present expert medical testimony at trial in support of the intentional infliction of emotional distress which was a violation of the Pennsylvania Supreme Court's ruling in Kazatkzy v. King David Mem'l Park Inc., 527 A.2d 988 (Pa. 1987), in which that Court  held that, to the extent the tort of intentional infliction of emotional distress was recognized in Pennsylvania, recovery was limited to those cases in which competent medical evidence of emotional distress was presented by the Plaintiff.

Anyone wishing to review the Superior Court's decision in Gray may click this LINK.

Source:  "Instant Case Digest," Pennsylvania Law Weekly (Sept. 13, 2016).