Monday, April 22, 2019

Several Notable Civil Litigation Decisions Pertaining to Expert Testimony


Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued several decisions of note heading into a medical malpractice trial in the case of The Pennsylvania Trust Co. v. Wilkes-Barre Hosp. Co., LLC, et al., No. 17 - CV - 4655 (C.P. Lacka. Co. April 12, 2019 Nealon, J.).

The case arose out of claims of alleged negligent neonatal care.  Plaintiff's counsel in the case was Attorney Matthew A. Casey of Ross Feller Casey, LLP out of Philadelphia.

Reduction of future medical costs to present value prohibited

In a decision found at this LINK, Judge Nealon addressed issues pertaining to the reduction of future medical expenses to present value.  In this matter, the Plaintiff asserted a pre-trial objection to the defense economists expert from repeatedly referencing the amounts of future medical and/or life care costs in terms of the present value of the costs.

Judge Terrence R. Nealon
Lackawanna County
After pointing to 80 years of Pennsylvania precedent, as well as MCARE precedent, confirming that future medical cost claims are not to be reduced to present value in (non-automobile accident) civil litigation matters, the court granted the Plaintiff's motion in limine in this regard and held that the defense economist expert was precluded from referencing the reduction of the Plaintiff's future medical and/or life care costs to present value.

Expert testimony on need for future medical care allowed

Under a separate detailed Order found at this LINK, Judge Nealon addressed the issue of the presentation of expert testimony on likelihood of future medical care.  The defense objected to the Plaintiff's expert's proposed testimony in this regard as speculative and inappropriate.  Citing to a number of cases, the court overruled the defense's objection and allowed the opinion on the basis that experts are permitted to offer their opinions as to the future treatment required by a Plaintiff's injury or condition based upon facts in evidence that the jury would be warranted in relying upon.

References to learned treatises is hearsay in Pennsylvania state court (but allowed in a limited fashion)

In yet another pre-trial detailed Order found at this LINK, the court addressed objections by the Plaintiff to the defense expert's plan to reference medical publications in his opinion.

The court pointed out that, unlike the Federal Rules of Evidence, the Pennsylvania Rules of Evidence do not recognize an exception to the hearsay rule permitting the admission of a learned treatise as substantive evidence on a limited basis.  Judge Nealon even pointed to a Superior Court decision from a week ago in which that Court held that reading a passage from a treatise into evidence in an effort to prove the truth of the matter asserted therein amounts to inadmissible hearsay which is not changed by the fact that the passage is read by an expert.  See Order at p. 2 citing Hassel v. Franzi, 2019 WL 1512346 at *5 (Pa.Super. 2019).

Yet, the court also noted that experts may refer to treatises to explain the reasoning behind the expert's opinion as long as limiting instructions are provided by the court to ensure that the reference to the treatise does not come in as substantive evidence on the point made.

As such, Judge Nealon crafted a result in this matter by granting part, and denying in part, the Plaintiff's motion.  Under the Order, the defense expert would be permitted to reference certain treatises or publications but the court would issue limiting instructions to confirm that the referenced passages were not coming into the case before the jury as substantive evidence.

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