Wednesday, February 23, 2022

Late Expert Report and Other Issues Addressed in Medical Malpractice Context

In two separate Opinions addressing different pre-trial motions in limine in the case of Morrissey v. GCMC, Geisinger Community Medical Center, No 3:19-CV-894 (M.D. Pa. Jan. 27, 2022 Mariani, J.), the court denied a Motion In Limine in a medical malpractice case and found, in part, that a Defendant could introduce that a Plaintiff refused a particular medical test relative to the treatment provided.

Judge Mariani noted that, where there was a dispute between the parties over whether the test was offered, that issue was one for a jury to decide. The judge went on to note that, if the jury believed the Defendant’s evidence in this regard, then the refusal of the test by the Plaintiff would be undisputedly relevant.

Judge Robert D. Mariani
Pa. M.D.

The court also found that the fact that the Plaintiff allegedly suffered from cirrhosis of the liver from past alcohol use was also relevant and admissible as to causation issues and damages. However, the Defendant was precluded from characterizing the Plaintiff as an alcoholic without first presenting any evidence that the Plaintiff still engaged in the drinking of alcohol.

The court also ruled that the Defendant’s late expert report would not be excluded, Judge Mariani stated that the exclusion of critical evidence is an extreme sanction that it is not to be imposed except for the proponent’s willful deception or flagrant disregard of a court Scheduling Order. While the Defendant’s report was indeed late, the court found that the report at issue was essentially a rebuttal to the report of the Plaintiff’s expert. The court also noted that any prejudice to the Plaintiff was lessened by the fact that the Plaintiff could take the Defendant’s expert’s deposition prior to trial.

Anyone wishing to review a copy of these two decisions may click this LINK and this LINK

I send thanks to Attorney James M. Beck from the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

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