Thursday, January 12, 2012

Judge Nealon of Lackawanna County Addresses Admissibility of Expert Testimony in Medical Malpractice Case

In a recent medical malpractice decision of note in the case of Locker v. Henzes, No. 2005-Civil-3174 (C.P. Lacka. Dec. 20, 2011 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed the admissibility of expert testimony tendered by a Plaintiff.

Locker involved a medical malpractice case pertaining to an allegedly erroneous implantation of a femoral trial component rather than the regular permanent component during a total hip replacement procedure.

Prior to trial, the medical malpractice Defendants filed Motions in Limine seeking to preclude the testimony of the Plaintiffs’ pathology expert and biomedical engineering expert. The Defendants argued that those experts should be barred from testifying since their reports were produced beyond the court-established deadlines and since the experts did not satisfy the expert witness competency criteria found in §512 of the Medical Care Available and Reduction of Error (MCare) Act, 40 Pa. C.S.§1303.512. The Defendants also asserted a Frye challenge to the biomedical expert’s analysis and opinions pursuant to Pa. R.C.P. 207.1.

Judge Nealon ultimately ruled that, although the experts’ reports were indeed produced beyond the discovery deadline, they were still served upon defense counsel more than six (6) months prior to the trial. The Court noted that the Defendants had not demonstrated any prejudice as a result of the belated production of the expert reports and, as such, this portion of the Defendants’ motions was denied.

Judge Nealon also found that the pathology expert was properly qualified under the mandates of §512(b) of the MCare Act.

The Court additionally ruled that the biomedical engineering expert would be allowed to testify, based upon his biomechanical evaluation of the trial femoral component, that the implantation of the provisional device caused increased stress shielding and resulted in bone remodeling. However, Judge Nealon ruled that this non-medical expert was not competent under §512(b) to offer opinions on medical causation, including the cause of the decedent’s pain, weakness, and physical limitations.

Judge Nealon further ruled that neither the pathologist nor the biomedical engineer was qualified to testify concerning the applicable standard of care pursuant to §512(c) of the Act.

Last but not least, the Court also denied the Defendants’ Frye Motion with respect to the biomedical engineering expert since the methodology used by that expert did not involve novel scientific evidence that has failed to attain a general acceptance in the relevant scientific field.

Anyone desiring a copy of this medical malpractice decision of Judge Nealon in the case of Locker v. Henzes may contact me at

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