Friday, October 24, 2014

Subsequent Remedial Measures And Medical Expert's Opinion Precluded in Slip and Fall Case

In its recent decision in the case of Hunter-McLeod v. Dollar General, No. 13-3113 (E.D. Pa. Sept. 16, 2014 DuBois, J.) (Memorandum and Opinion), the Eastern District Federal Court addressed the issues of subsequent remedial measures in a slip and fall case as well as the admissibility of an expert medical opinion.  

This matter arose out of a slip and fall accident that occurred at a Dollar General Store in Philadelphia, Pennsylvania.   Surveillance cameras captured the Plaintiff’s entrance into the store and her accident.   The surveillance video also captured the four (4) employees placing a piece of cardboard over the area of the fall following the incident.  

Prior to trial, the Defendant filed a Motion In Limine to exclude all evidence of subsequent remedial measures contained in the surveillance video as well a Motion to Preclude the Plaintiff’s medical expert from offering certain evidence at trial. 

Applying F. R.E. 407, pertaining to the admissibility of subsequent remedial measures, the court granted the Defendant’s Motion and excluded the evidence of the store’s post-accident actions as inadmissible.   In so ruling, the court found that there was no evidence that the subsequent remedial measures contradicted any witnesses’ testimony directly in order to be admissible for impeachment purposes.  

With respect to admissibility of the Plaintiff’s expert medical opinion that the subject accident “may have” aggravated Plaintiff’s degenerative arthritis of the left hip, the court found that this testimony was not admissible even though the witness stated that the opinion was offered to a reasonable degree of medical certainty. 

Applying Pennsylvania law, the federal court noted that the Pennsylvania Superior Court has stated that “[e]xpert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing out the injury.”   Citing Kravinsky v. Glover, 396 A.2d 1349, 1356 (Pa. Super. 1979).   The federal court noted that the Kravinsky Superior Court also explained that “an expert fails this standard of certainty if he testifies that the alleged cause possibly, or could have[,] led to the result, that it could have very properly accounted for the result, or even that it was very highly probable that it caused the result.”   396 A.2d at 1356 [other citations omitted]. 

In this case, the Plaintiff’s medical expert report provided as follows:  “I believe her slip and fall caused an aggravation of pre-existing degenerative disc [sic] made of x-ray findings which revealed degenerative arthritis of the left hip.   This was not caused by the fall, but may have been aggravated.”  

The defense took issue with the Plaintiff’s expert’s opinion that the accident “may have” caused an aggravation of the Plaintiff’s arthritis.   The federal court concluded that the Plaintiff’s expert medical opinion was insufficient and therefore inadmissible even though the doctor concluded his report with a statement that his opinion “have been rendered with a reasonable degree of medical certainty.”  

Anyone wishing to review this Eastern Pennsylvania Federal Court memorandum decision may click this LINK

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