The 'Mudano' Rule: Conflicting Expert Opinions Often
Prove Fatal
By
Daniel
E. Cummins, Pennsylvania Law Weekly
March 21, 2017
A plaintiff's personal injury case
can go off the rails when the plaintiff's medical experts offer opinions that
conflict with one another. This may typically arise where one expert for the
plaintiff opines that a particular injury was caused by the subject accident
and yet another expert questions whether the injury is indeed related.
Under Pennsylvania Rule of Evidence
702, titled "Testimony by Expert Witnesses," it is provided, that
"a witness who is qualified as an expert by knowledge, skill, experience,
training or education may testify in the form of an opinion" if the
expert's specialized knowledge is beyond that of a layperson and such knowledge
will assist the jury to understand the evidence or determine a fact in issue.
Generally speaking, the admissibility
of expert opinion is a matter left largely within the broad discretion of the
trial court, as in Bolus v. United Penn Bank, 525 A.2d 1215, 1225 (Pa.Super.
1987).
Where a plaintiff's experts conflict
with one another, the plaintiff is likely to be faced with a defense motion in
limine seeking to preclude each expert's opinion on the basis that allowing
such evidence would only serve to confuse, and not educate, the jury.
Notably, in the separate scenario
where the defense produces conflicting expert reports in a civil litigation
matter, the defense may still be permitted to proceed with the expert testimony
as the defense does not bear the burden of proof at trial. The remedy for the
plaintiff in this regard is to point out to the jury the conflicting nature of
the opinions of the defense experts in an effort to discredit the defense.
The
'Mudano' Rule
Under what has become known as the
Mudano rule, the Pennsylvania Supreme Court in Mudano v. Philadelphia Rapid
Transit, 289 Pa. 51, 60, 137 A. 104, 107 (1927), has held that the testimony of
a plaintiff's medical experts must be reasonably consistent with one another
such that, with respect to the plaintiff's experts, "there must be no
absolute contradiction in their essential conclusions." The court further
stated that a plaintiff has a "duty to furnish consistent, and not
inconsistent, advice—otherwise the jury would be confused rather than
instructed."
The Pennsylvania Supreme Court
reiterated the Mudano rule in case of Brannan v. Lankenau Hospital, 417 A.2d
196 (Pa. 1980). In Brannan, the court cited Mudano for the proposition
"that a plaintiff's case will fail when the testimony of his two expert
witnesses is so contradictory that the jury is left with no guidance on the
issue, see also Menarde v. Philadelphia Transportation, 103 A.2d 681 (Pa. 1954)
(The Pennsylvania Supreme Court applies Mudano rule to the plaintiff's expert
reports); see also Halper v. Jewish Family and Children Services of Great of
Philadelphia, 963 A.2d 1282, 1287 (Pa. 2009) (The Pennsylvania Supreme Court
applies the Mudano rule to the plaintiff's expert reports).
Even if a plaintiff attempts to
supplement his discovery responses to only identify one of the two conflicting
as the only expert the plaintiff will call at trial, the Mudano rule will be
implicated when the defense cross-examines the plaintiff's expert with respect
to the separate, contradictory opinion of the plaintiff's other expert.
In such a case, the jury would still
be faced with conflicting opinions by two experts from the plaintiff's side of
the matter, i.e., the very situation that the Mudano rule holds will cause the
plaintiff's case to fail. The defense argument will be that the plaintiff
should not be allowed to put the court, the parties, the attorneys and the
jurors through the time and expense of the trial by simply choosing to identify
one expert and ignoring the contradictory opinions of his or her other expert.
Such evidentiary gamesmanship should not be countenanced by the courts where
the purpose of a civil trial is get to the truth of the claims and defenses
asserted.
Not
Applicable to Defense
The courts of Pennsylvania have
rejected attempts by plaintiffs to have the Mudano rule applied to defense
experts that conflict with one another. The courts have reasoned that the rule
should not apply to the defense case because the defense does not bear the
burden of proof at trial.
Plaintiffs may cite to the case of
Smith v. German, 253 A.2d 107 (Pa. 1959), in support of an argument that the
defense must produce consistent evidence in an effort to disprove causation
between an accident and a plaintiff's alleged injuries.
However such an argument has been
rejected by more recent Pennsylvania appellate court decisions. In Kennedy v.
Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003), the Pennsylvania Superior Court
stated that its "research indicates that Smith has never been cited in
subsequent cases for the proposition that in all cases where a defendant
challenges the causation element of a plaintiff's case, that he must produce
independent evidence of his own. In fact, we can find no case citing to Smith
that applies the case to the defendant. In large part, Smith, as it may apply to
a defendant, appears to be an anomaly limited to the facts of that case."
Rather, in personal injury matters,
the defense has no burden of proof on the issue of causation and, therefore,
the Mudano is inapplicable to the defense evidence. As emphasized by the
Pennsylvania Superior Court in the Kennedy case, when there is some evidence of
other causes of a plaintiff's alleged injuries, the burden of proving these
other causes does not shift to the defense. To the contrary, as confirmed by
the Kennedy court, absent special circumstances, a defendant carries no burden
of proof in a civil litigation matter.
Stated otherwise, "a defendant
may choose to present no evidence and may simply argue that the plaintiff has
not met its burden of proof. A jury may find for the defendant in such a
situation." The Kennedy court also pointed out that the Smith decision
"does not require a defendant ... to present independent medical testimony
specifically linking the alleged injuries to another cause."
Moreover, it has otherwise generally
been held as a principle of Pennsylvania law that an opinion offered by the
party, i.e., the defendant, not having the burden of proof need not be as
precise as an opinion offered by the party with the burden of proof, as in Neal
v. Lu, 530 A.2d 103, 109-110 (Pa. Super. 1987).
It
Comes Down to Sufficiency of Expert Evidence
It has generally been held by the
courts of Pennsylvania that the effect of a conflict between the testimony of
different experts called by a party is in reality a question of the sufficiency
of the evidence.
In the case of conflicting expert
opinions presented by a defendant not having the burden of proof, the courts
will allow the issue to proceed to the jury for the jury's consideration as to
what weight to be applied to such contradictory evidence.
However, conflicting expert opinions
on the plaintiff's side of the case will often prove fatal. Such evidence fails
to satisfy the plaintiff's burden of proof, renders the plaintiff's case
speculative and, if the case were allowed to proceed to verdict, would cause
the jury to engage in impermissible guesswork on the important issues presented
in the case.
Accordingly, where a plaintiff's
experts conflict with one another, the courts will likely preclude such experts
under the Mudano rule and then proceed to enter a nonsuit in favor of the
defense due to the plaintiff's failure to meet his or her burden of proof on
the case presented. •
Special to the Law Weekly Daniel E.
Cummins is a partner and civil litigator with the Scranton law firm of Foley
Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at
www.TortTalk.com.
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