Tuesday, November 6, 2018

Judge Nealon of Lackawanna County Confirms that a Non-Party Expert Cannot Be Compelled to Give His Opinion Against His Will


In the medical malpractice case of Venosh v. Henzes, No. 11-CV-3058 (C.P. Lacka. Co. Oct. 1, 2018 Nealon, J.), the court addressed issues pertaining to Letters Rogatory as well as with respect to the ability of a party to call an expert witness to give his opinion at a deposition where that expert is not the expert of the party requesting the deposition.  

According to the Opinion, during discovery in this medical malpractice case, the Plaintiff obtained peer review reports pertaining to her surgical care that were prepared by an out-of-state orthopedic surgeon at the request of the Plaintiff’s health insurance carrier as part of its internal “quality-of-care” review process.  

The Defendant doctor in this matter filed a Motion In Limine seeking to preclude those quality-of-care review materials on the grounds that they contain inadmissible hearsay and due to the possibility of unfair prejudice.  

The Plaintiff countered with a motion seeking an Order and Letters Rogatory compelling the out-of-state orthopedic surgeon who performed the peer review to present himself for a trial deposition in that other state.  

Judge Terrence R. Nealon
Lacka. Co.
The court agreed that the carrier’s quality-of-care review records and the orthopedic surgeon’s peer review reports were not admissible.   However, subject to certain limitations, the court did allow the Plaintiff to question the peer review doctor regarding a letter he authored as a possible exception to certain hearsay objections.

Notably, with respect to the Plaintiff’s Motion for the issues of Letters Rogatory to compel the video trial deposition of the out-of-state orthopedic surgeon, the court noted that Pennsylvania law recognizes that a private litigant cannot compel the opinion testimony of a non-party expert witness without that expert’s consent.   See Op. at p. 25. 

As such, the court denied the Plaintiff’s Motion for Letter Rogatory without prejudice to the Plaintiff’s right to introduce expert testimony from that peer review doctor in the event that doctor voluntarily agreed to testify on behalf of the Plaintiff.

Anyone wishing to read this Opinion online may click HERE.

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