In the case of McManus v. Walgreens Co., No. 21-CV-2285 (E.D. Pa. Aug. 30, 2022 Kenney, J.), the court denied the Plaintiff’s request for a new trial in a premises liability case that ended in a verdict for the Defendant.
According to the Opinion, there was misconduct by the prevailing defense counsel in surreptitiously having his expert conduct an on-site experiment, and hiding that information from plaintiff's counsel until it was revealed at trial. Although the court agreed that this was misconduct, the court found that the misconduct was harmless under the circumstances presented at trial.
More specifically, the court noted that, immediately after this information was revealed to the jury, it was objected to and the testimony was stricken.
Moreover, the jury was instructed to disregard this information. The court noted that jurors are presumed to obey instruction to disregard information presented at trial when so directed by the court. This presumption can only be overcome by circumstances indicating that the wrongfully admitted material was so overwhelmingly significant that the jury could not possibly disregard it.
The trial court judge additionally noted in his Opinion that this incident with the expert testimony was only a minor part of a lengthy trial.
The court additionally found that it was not an abuse of the discretion of the court to allow the remainder of that expert’s testimony to stand despite the expert’s mendacity. The court additionally noted that, in any event, every issue that the expert testified to was already on the record and the subject of multiple defense witnesses’ testimony.
In another notable decision out of this case, the trial court found that the admission of evidence of the lack of prior similar incidents was proper given that an adequate foundation was laid for the admission of this evidence.
Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed HERE.
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.
In the case of Mazzie v. Lehigh Valley Hospital-Muhlenberg, No. 473 EDA 2020 (Pa. Super. April 16, 2021 Kunselman, J., Nichols, J., and Pellegrini, J.) (Op. by Nichols, J.), the court ruled that a trial court did not abuse its discretion in granting a Plaintiff a new trial limited to damages in her medical malpractice action after finding that the liability issues were fairly determined and were not intertwined with the damages issues.
The case arose out of a medical malpractice action following a laparoscopic surgery to repair multiple hernias. After the surgery, the Plaintiff allegedly suffered septic shock and required additional surgeries and treatment to safe her life.
The appellate court also found that the trial court had correctly granted the Plaintiff a new trial on damages for pain and suffering even though the jury entered a verdict for $0 on the Plaintiff’s non-economic damages claims. The court found that there was significant testimony and evidence to confirm the Plaintiff’s alleged pain and suffering to the point that the Plaintiff almost died following the treatment.
In another notable part of this opinion, the Court reviewed the validity of an expert's opinion where the expert did not use the words "to a reasonable degree of medical certainty" during his or her testimony. The Court found that, viewing the expert's testimony as a whole, the testimony was sufficiently certain even though the magic words were not used.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).
The Pennsylvania Superior Court recently issued a notable decision regarding the admissibility of expert testimony in the case of In the Interest of: M.R., a minor, 2021 Pa. Super. 30 (Pa. Super. March 1, 2021 Bender, P.J.E., Olson, J., and King, J.) (Op. by Bender, J.).
Although this is not a tort case, and involves issues regarding child abuse, the law regarding the admissibility of expert opinions set forth in this decision would likely also apply in civil litigation matters.
At issue in this case was whether the trial court erred and abused its discretion by admitting the testimony of the parents’ expert witness who offered an opinion that metabolic bone disease of infancy (also known as temporary brittle bone disease) was the cause of the twin children’s multiple fractures and not any abuse.
In reviewing the issue of admissibility of the expert’s opinion, the court reviewed Pennsylvania Rule of Evidence 702 and the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The court noted that, under Pennsylvania Rule of Evidence 702, which controls the admissibility of expert testimony, one of the requirements for the admission of an expert’s opinion is that the expert’s methodology is generally accepted in the relevant field. This is commonly referred to as the Frye test.
The court noted that the Frye test is limited to an inquiry into whether the methodologies by which the scientist had reached his or her conclusions have been generally accepted in the scientific community.
The court noted that this test restricts the admission of scientific evidence to that evidence that has resulted from scientific research which has been deemed to be generally recognized as sound research as opposed to the “fanciful creations of a renegade researcher.” [citation omitted]. However, the test is not so restrictive that it does not allow for a scientist to testify as to new conclusions which have emerged during the course of properly conducted research.
Under this test, the proponent of the admission of expert scientific evidence bears the burden of establishing all of the elements supporting its admission, including the general acceptance of a methodology that has actually been employed in the relevant scientific community.
The Pennsylvania Superior Court emphasized that the law of Pennsylvania is that the question of whether a methodology is generally accepted in the relevant scientific community is a determination that is to be made based upon the testimony of scientists in that community and not upon any alleged scientific expertise of the trial court judge. Rather, the Frye test assures that judges will be guided by scientists when assessing the reliability of a scientific method.
As such, under the analysis to be applied in determining whether to admit an expert's opinion, it is the trial court’s function to ensure that the expert has applied a generally accepted scientific methodology to reach his or her scientific conclusions. To fulfill this function, the trial court must be guided by scientists in the relevant field, including the experts retained the parties in the case and any other evidence of general acceptance presented by the parties. For example, a reference to the methodology in textbooks, scientific publications, studies, statistics, expert testimony, or in other judicial opinions on the issue, or a combination of these sources, can support the admission of an opinion.
The Superior Court cautioned that the trial court may consider only whether the expert applied methodology generally accepted in the relevant field, and the trial court may not go further and attempt to determine whether or not it agrees with the expert’s application of those methodologies and/or whether the expert’s conclusions have sufficient factual support. Rather, those questions are for a jury to decide.
In setting forth this law, the Pennsylvania Superior Court in this case quoted extensively from the recent Pennsylvania Supreme Court decision in the case of Walsh Estate of Walsh v. BASF Corp., 234 A.3d 446, 456 (Pa. 2020).
In the end, the Pennsylvania Superior Court found that the trial court had abused its discretion by admitting the testimony of the expert in this child abuse case.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.
In the case of Rolon v. Davies, No. 2046 MDA 2018 (Pa. Super. April 28, 2020 Stabile, J., McLaughlin, J., and Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided guidance on their required elements for expert testimony to be admissible in a medical malpractice case.
In its decision, the Pennsylvania Superior reserved a trial court’s grant of a nonsuit in favor of a Defendant surgeon in a negligence case filed under allegations that one of his patients had died of a pulmonary embolism following surgery.
At the trial court level, the Defendants moved for a nonsuit under a claim that the Plaintiff’s expert did not offer his opinion to as reasonable degree of medical certain consistent with Pennsylvania law regarding the Defendant’s alleged negligence. The trial court judge granted that particular Defendant’s motion for a nonsuit and the jury eventually returned a defense verdict in favor of the other Defendants. The Plaintiff appealed asserting, in part, that the trial court judge erred in granting the nonsuit regarding the expert at issue.
The Superior Court reversed the trial court’s entry of a nonsuit after finding that the record confirmed that the Plaintiff’s medical expert stated he was certain of his opinion. The Superior Court also noted that the Plaintiff’s medical expert also provided a thorough explanation as to how he arrived at his opinion given the evidence before him.
In its Opinion, the Superior Court provided a nice review of the requirements to allow expert testimony into evidence. The court reiterated the rule that an expert need not use the 'magic words' "to a reasonable degree of medical certainty” for her or his testimony to be admissible. Rather, the Superior Court panel noted that, if the remainder of the expert’s opinion confirms that the expert expressed his opinion with reasonable certainty, then the opinion should be allowed into evidence as supportive of the case presented by that party offering the expert.
The court noted that an “expert fails this standard of certainty if [he] or [she] testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” See Op. at 5 [citation omitted] [bracket inserted here].
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Article – “Court Calls for New Med Mal Trial, Reversing Ruling That Expert Testimony Was Insufficient.” By P.J. D’Annunzio Pennsylvania Law Weekly (April 30, 2020).
The Pennsylvania Superior Court addressed several notable recurring civil litigation issues in the case of Nazarak v. Waite, 2019 Pa. Super. 235 (Pa. Super. Aug. 2, 2019 Lazarus, J., Murray, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).
The case arose out of a rear end motor vehicle accident. The Plaintiff was driving a commercial vehicle and was on the job at the time of the accident. As such, he received worker's compensation benefits in the form of medical payments and indemnity payments.
The case proceeded through discovery and a trial at which a verdict was entered in favor of the Plaintiff. On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's post-trial motions.
Among the notable rulings by the Pennsylvania Superior Court were the following:
-Issues regarding the admission of the worker's compensation lien into evidence.
The Pennsylvania Superior Court affirmed the trial court's ruling to allow the Plaintiff to present to the jury the amount of the worker's compensation lien.
The Superior Court rejected the defense contention that the admission of the evidence pertaining to the lien violated the collateral source doctrine. The Court noted that the reasoning behind the doctrine was not implicated in this case because it was the Plaintiff who was introducing the evidence of a prior recovery and not the Defendant.
The Nazarak Court also rejected the defense argument that the admission of the lien amount into evidence and the allowance of a recovery in that regard amounted to a double recovery for the Plaintiff. The Court confirmed that the Plaintiff was required to pay back the lien amount to the worker's compensation carrier and that, as such, there was no double recovery by the Plaintiff.
The Superior Court also rejected the defense contention that, by allowing into evidence the fact that the Plaintiff had been paid such medical and wage loss benefits, the trial court usurped the function of the jury to decide the issue of causation because such evidence suggested that the Plaintiff's injuries were from the accident. This contention by the defense was rejected by the Superior Court in this Narzarak decision.
-The Court also rejected the defense argument that it was error for the trial court to have allowed the introduction of the compromise and release document from the worker's compensation case into evidence at trial. The defense had asserted that this was impermissible evidence of a settlement agreement in violation of 42 Pa.C.S.A. Section 6141. The Superior Court noted that the Defendants in this case were not parties to that separate worker's compensation settlement agreement and, as such, Section 6141 was not directly implicated. However, the Superior Court went onto note that while the admission of this evidence may have violated the letter of the law in Section 6141, such an error was not a reversible error where the evidence was only used by the Plaintiff to establish the amount of the lien and not with respect to proving any liability issues (liability was admitted by the defense at trial).
-Issues regarding the presentation of expert testimony.
The Court in Nazarak rejected the defense contention that the Plaintiff's vocational expert was allowed to testify beyond the fair scope of her report. After reviewing the expert's testimony as compared to the expert's report, the Court rejected this argument.
The Court also rejected the argument by the defense that the Plaintiff had violated the hearsay rule by utilizing the Plaintiff's testifying orthopedic expert report to comment upon the report and opinions of a neuro-radiologist expert who was not called to testify. The defense contended that this strategy violated the rule of law that prohibited one expert from acting as a mere conduit for the opinion of another expert. The Nazarak court reviewed the testimony of the testifying orthopedic expert and found that that expert had not merely acted as a conduit for the other expert's opinion, but rather had permissibly referred to and relied upon that other expert's opinions to formulate the orthopedic expert's own opinions on the case presented.
Anyone wishing to review this case may click this LINK.
In the case Phillips v. Gilbert, July Term 2016 No. 02819 (C.P.
Phila. Co. June 17, 2019 Lauchman, J.), the trial court issued a Rule 1925
Opinion requesting the Superior Court to affirm the trial court’s decision that
the Plaintiff’s expert in a dental malpractice case, who had never performed a
dental implantation procedure during his lengthy career as a dental pathologist, lacked the training,
experience, and knowledge necessary to testify regarding the standard of care
applicable to the dental implant procedure that had been performed on the
Plaintiff by the Defendant.
The court
noted that the Plaintiff’s expert was an oral and maxillofacial pathologist and
not an oral and maxillofacial surgeon.
Given that the court barred the Plaintiff’s expert from
testifying, the Plaintiff was found to be unable to establish a prima facie
case of negligence.As such, the trial
court granted a compulsory non-suit in favor of the Defendant and denied the Plaintiff’s
post-trial motion.The Plaintiff filed
an appeal which prompted this Rule 1925 Opinion by the court.
In its Opinion, the trial court emphasized that oral and
maxillofacial surgeons and pathologists undergo completely different training
and performed completely different procedures on patients.
Anyone wishing to review a copy of this decision may click
this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania
Law Weekly (July 16, 2019).
In
the case of Hassel v. Franzi, No. 311 EDA 2018 (Pa. Super. April 8, 2019 Olson, J., Dubow, J., Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court addressed the fair scope
of expert testimony in a medical malpractice action.
This
matter involved a Plaintiff who was immobilized after she fractured her leg and
who developed a blood clot that allegedly caused a fatal cardiac arrest.
The
jury in the trial of the case ultimately determined that one of the doctor’s
conduct failed to meet the standard of care but that his negligence was not a
factual cause of the Plaintiff’s death. The jury also found that another doctor’s conduct met the standard of
care.
On
appeal, the verdict and judgment was affirmed.The appellate court rejected the
Plaintiff’s contention that the trial court had erred in permitting the
Defendants’ experts to testify to matters outside the scope of their
reports.
In
this regard, the appellate court noted that the Plaintiff initially failed to
specifically object to those portions of the testimony that were alleged
outside the scope of the expert reports.
The
Superior Court also ruled that, in any event, the Plaintiff was fairly on
notice as to the anticipated expert testimony and/or was able to conduct a
productive cross-examination of the experts regardless.
The
Superior Court additionally found that the Plaintiff failed to assert specific
objections to the causation testimony by those experts.
The
appellate court additionally rejected the Plaintiff’s contention that the
Defendants had been allowed to introduce excessively duplicative expert
testimony despite precluding the Plaintiff from presenting cumulative testimony
at trial.The Superior Court affirmed
the trial court’s finding that the challenged testimony was corroborative rather
than cumulative, as each expert was testifying from the viewpoint of his own
specialty.
Anyone
wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.”Pennsylvania
Law Weekly (April 30, 2019).
In a recent decision in the case of Horst v. Union Carbide Corporation, No.
15-CV-1903 (C.P. Lacka. Co. Oct. 11, 2017 Nealon, J.), Judge Terrence R. Nealon
of the Lackawanna County Court of Common Pleas reviewed the scope of a trial
judge's authority to impose limitations upon the length and number of opening
statements, closing arguments, and examinations of witnesses pursuant to Pa.
R.C.P. 223 and 225.
This asbestos action was proceeding under allegations that
the Plaintiff allegedly developed malignant mesothelioma as a result of the
Plaintiff’s alleged exposure to asbestos-containing products that were
allegedly manufactured or sold by the Defendants while the Plaintiff was employed
by his father’s heating, ventilation, air conditioning, and plumbing
business.
The court noted that it had issued this Order imposing
limitations on the trial proceedings after counsel had initially represented to
the court that the trial of this matter would last three (3) weeks after which
the Defendants more recently revealed to the court that four (4) trial weeks or
twenty (20) days, would be required to present the Defendants' case only.
Accordingly, the court noted that, in order to ensure that
the trial would be completed within the allotted time that was originally fixed
based upon the initial representations of counsel, the court entered an Order
imposing limitations upon the length and number of the opening statements,
closing arguments, and examination of witnesses. In this decision, the court denies the
Motion for Reconsideration filed by eleven (11) of the twelve (12) Defendants
in which the Defendants requested that all of eleven (11) participating
Defendants be granted the opportunity through their respective counsel to
present opening statements, closing arguments, and to examine all non-expert
witnesses called by the Plaintiff.
After reviewing Pennsylvania law in support of its decision
and authority to limit certain aspects of trial proceedings, the trial court
granted in part and denied in part the Motion for Reconsideration. The Motion for Reconsideration was granted
to the extent that the prior Order of Court was amended to provide that all
Defendants shall be allotted and aggregated a period of 180 minutes within
which to present and conclude all opening statements on behalf of Defendants as
well as a same amount of time within which to complete closing arguments for
all Defendants. In all other respects,
the Defendants’ Motion for Reconsideration was denied.
Anyone wishing to read this Opinion may click this LINK.
In its recent decision in the case of James v. Albert Einstein Medical Center, 2017 Pa. Super. 293 (Pa. Super. Sept. 12, 2017 Blatt, Dubow, and Ransom, J.J.) (Op. by
Blatt, J.), the Pennsylvania Superior Court affirmed the entry of a verdict in
favor of a Defendant in a medical malpractice action. In one decision of note in this case, the
court found that experts in one area of medicine are qualified to address
other areas of medicine covered by other specialties where the medical
specialties overlap.
The Pennsylvania
Superior Court in this decision also reiterated the rule that Pennsylvania does
not recognize the right of filial consortium.
Accordingly, the court found that the mother of the decedent was
properly precluded from testifying about her pain and suffering in a wrongful
death case.
Anyone wishing to review a copy of this decision may click HERE.
I send thanks to Attorney James M. Beck of the Reed Smith
law office in Philadelphia for bring this case to my attention.
The below article of mine appeared in the March 21, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:
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.
In its non-precedential decision in the case of Lingham
v. Faison, No. 530 EDA 2016 (Pa. Super. Jan. 11, 2017) (Mem. Op. by Shogan, J.), the
Pennsylvania Superior Court ruled that a trial court properly precluded an
expert medical witness’s opinion regarding the reasonableness and the necessity
of a rhizotomy medical procedure where that expert lacked any particular knowledge of the
procedure and could not otherwise identify the standard of care.Judgment in favor of the defense was
affirmed.
This was a limited tort auto accident matter. The above issue was raised during the videotaped deposition for trial of the Plaintiff's medical expert
Anyone wishing to review a copy of this decision may click
this LINK.
Source: “Digest of
Recent Opinions.”Pennsylvania Law Weekly (Jan. 31, 2017).
Tort Talkers may recall that I recently posted on the case of Mina v. Hua Mei, Inc., 2012-CV-7781 (C.P. Lacka. Co. 2016 Mazzoni, J.) HERE in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas ruled that a Plaintiff's treating doctor could be compelled to respond to Cooper Interrogatories seeking bias information, including financial information relative to the experts medical-legal activities.
UPDATE: On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision. Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.
Senior Judge Robert A. Mazzoni
Lackawanna County
Judge Mazzoni noted that, upon further consideration of the matter, the threshold test mandated by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) of showing that the Plaintiff's treating physician was a "professional witness" had not been met by the defense. Accordingly, the court found that it would not be appropriate to allow for the more intrusive Cooper Interrogatories to be submitted to that expert.
In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case. Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts. The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."
Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK
Judge Mazzoni's original decision can be viewed HERE.
I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.
In his recent Opinion in the case of Rodriguez v. Broad, No. 7250-CV-2012
(C.P. Monroe Co. Feb. 5, 2016 Zulick, J.), Judge Arthur L. Zulick of the Monroe
County Court of Common Pleas denied a Plaintiff’s Motion In Limine seeking to
preclude the testimony of the Defendant’s independent medical examination (IME) expert.
According to the Opinion, the IME doctor issued a report
indicating that he performed a history and physical examination of the
Plaintiff and reviewed her medical records, radiographic studies, and
photographs of the damages to the vehicles in rendering his opinion.
The Plaintiff filed a Motion In Limine complaining that the
IME doctor’s conclusions that the alleged injuries of the Plaintiff could not
have been caused by the “minor trauma” of the motor vehicle collision was
improperly based upon the expert’s review of photographs of vehicles after the
collision.The Plaintiff contended that
the IME doctor was not an expert in the forces involved in vehicular crashes
and that jurors should be able to make their own conclusions about damage to
the vehicles as laypersons.The
Plaintiff contended that the IME doctor’s testimony should not be admissible as
a result.
Judge Zulick pointed out that the Plaintiff did not challenge the
IME doctor’s qualifications as an expert orthopedic surgeon.
The defense argued that the IME doctor properly considered
the extent of damages to the vehicle as an aspect of his review of the
Plaintiff’s complaints of orthopedic injuries in conjunction with taking the
Plaintiff’s history, conducting a physical examination, and reviewing medical
records and radiological studies.
Relying upon Pa. R.E. 703, which pertains to “Bases of
Expert’s Opinion Testimony,” Judge Zulick denied the Plaintiff’s Motion and
noted that the IME doctor’s use of photos of the vehicles is “one pillar of
support of his opinion.”Judge Zulick
also noted that the IME doctor’s consideration of the photographs would be
subject to cross-examination.He
additionally stated that the jury would be able to consider the damage to the
vehicles themselves and use their own judgment as to whether or not they agreed
with the IME doctor’s analysis as well.
Overall, the court found that the Plaintiff’s objections to
the IME doctor’s testimony went to the weight or value of the evidence, and not its
admissibility. Accordingly, these objections were denied.
Judge Arthur L. Zulick
Monroe County
Judge Zulick also addressed the Plaintiff’s objections that the IME doctor’s opinion were not definite.The court noted that the IME doctor did
state, at the conclusion of his report, that all his opinions were rendered
within a reasonable degree of medical certainty.
In this regard, Judge Zulick also pointed to
the well-settled rule that an IME doctor, as an expert for the defense “does
not have to give his opinion to a reasonable degree of medical certainty on
question where the Plaintiff has the burden of proof.”See Op. at 5 [numerous citations
omitted].
Based on the above reasoning, the court denied the
Plaintiff’s Motion In Limine asserted against the IME doctor.
Anyone desiring a copy of this decision by Judge Zulick in
the case of Rodriguez may contact me
at dancummins@comcast.net.
I send thanks to Attorney G. Christopher Parrish of the Bethlehem, PA office of Forry Ullman for bringing this case to my attention.
In a notable detailed Order dated January 6, 2016 in the case of Mina v. Hua Mei, Inc., No. 2012 - CV - 7781 (C.P. Lacka. Co. Jan. 6, 2016 Mazzoni, J.), Judge Robert A. Mazzoni ruled that a Plaintiff's treating physician was required to respond to Cooper Interrogatories designed to seek discovery of financial bias information from that doctor.
In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises. Following the accident, the Plaintiff was treated, in part, by a physatrist.
During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.
The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation. Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.
Judge Robert A. Mazzoni
Lackawanna County
After reviewing Pa.R.C.P. 4003.5 and the relevant case law, Judge Mazzoni ordered the Plaintiff to respond to the Interrogatories. The court noted that the issue of whether or not a doctor's opinions were acquired or developed in anticipation of litigation or for trial was a case-by-case determination and that the fact that the doctor was a treating physician, in and of itself, was not conclusive and did not end the inquiry.
In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors. It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency. This request, and the report, were written about a year before the litigation began.
Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.
What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality. The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion. See Op. at p. 5.
Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."
As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome. The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.
Anyone wishing to review this decision may click this LINK.
To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK. If you cannot access the article via the Link, please let me know and I will email you a copy.
I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.
This article of mine appeared in the December 15, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission:
A Year of Changes in Civil Litigation
Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly
There were a number of notable developments in Pennsylvania civil litigation law over the past year in terms of decisions and at least one rule change. Here's a look back at some of those changes in 2015.
Jurors and Social Media
Earlier this year, the Pennsylvania Supreme Court, in keeping up with the changing times, amended Rule 220.1, pertaining to "Preliminary Instructions to Prospective and Selected Jurors," by expanding the need to instruct jurors to refrain from researching the case at hand through social media.
Previously, these types of instructions were generally reserved for those jurors actually selected and sitting in the jury box at trial. The new amendments require the trial court judge to also provide such instructions to persons in the general jury pool even before they reach a particular courtroom for jury selection.
The amendments place emphasis on advising such jurors of the prohibitions against using computer or mobile devices in a manner that may violate the instructions of the court during trial, including instructions on not discussing or researching the case presented.
Statute of Limitations in Limited Tort Cases
In an interesting opinion in the case of Varner-Mort v. Kapfhammer, 109 A.3d 244 (Pa. Super. 2015), the Superior Court addressed the proper application of the statute of limitations and the discovery rule in the context of limited tort cases.
In Varner-Mort, the limited tort plaintiff filed suit after the expiration of the statute of limitation but argued, under the discovery rule, that she did not "discover" that she had a serious injury until some point in time after the accident such that the lawsuit was timely filed under an application of the discovery rule.
Despite noting that precedent in this regard was just "plain wrong," this panel of the Superior Court nevertheless reluctantly agreed to apply the discovery rule and reversed the entry of summary judgment in favor of the defendant on the statute of limitations issue.
Independent Medical Examinations
A number of trial court decisions were handed down over the past year pertaining to the permissible parameters of independent medical examinations (IMEs).
In the Lebanon County Court of Common Pleas case of Shearer v. Hafer, No. 2012-01286 (C.P. Leb. Co. March 17, 2015 Charles, J.), Judge Bradford Charles ruled in favor of a defense discovery motion to compel a neuropsychological IME, with the parameters being that the plaintiff's attorney would be allowed to be present during the preliminary interview phase by the doctor of the plaintiff but not thereafter.
In the case of Trojanowicz v. Ford Motor, No. 2013 - CV - 223 (C.P. Lacka. Co. Feb. 10, 2015 Minora, J.), Judge Carmen D. Minora, citing Pa.R.C.P. 4010, noted that whether or not to allow multiple examinations by an IME expert was a decision left to the broad discretion of the trial court. Given that the psychiatric IME doctor wrote in his initial report that he was able to come to accurate conclusions and opinions based upon the review he had completed to date, Minora found that additional testing would not be allowed.
In the case of Feld v. Primus Technologies, 2015 U.S. Dist. Lexis 55270 (M.D. Pa. April 28, 2015 Brann, J.), U. S. District Judge Matthew W. Brann of the Middle District Court of Pennsylvania relied upon Fed.R.E. 703 in ruling that defendants in tort litigation may rely upon, and refer to, independent medical examinations of the plaintiff prepared in separate worker's compensation proceedings. The court denied a plaintiff's motion in limine in this regard reasoning that, even though the previous IME reports may be arguably biased, those reports were the kind of records that a medical expert would typically and legitimately rely upon, i.e, the records of other doctors, in formulating their own opinions on the case presented.
Cross-Examination of Witnesses
In 2015, decisions were handed down clarifying the extent to which expert and lay witnesses could be impeached on cross-examination at trial.
In Flenke v. Huntington, 111 A.3d 1197 (Pa. Super. 2015), the Superior Court ruled that, while expert witnesses may be impeached for bias, including frequent work for the same side in litigation or for insurance carriers, there are limits to such cross-examination.
More specifically, the court limited the cross-examination of the expert to those issues germane to the case at hand and evidence of bias related thereto. As such, the court place certain limits on the extent to which an expert could be cross-examined on compensation earned in litigation matters.
With respect to lay witnesses, in a detailed order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co. Feb. 23, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a motion in limine filed by the plaintiff in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by the plaintiff's treating doctor that contained a positive result for marijuana use.
In his opinion, Nealon noted that questions which concerned the admissibility of evidence lie within with sound discretion of the trial court and would not be disturbed on appeal absent a clear abuse of that discretion. Nealon also held that evidence utilized to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred. The court relied upon the law that a witness may not be impeached or contradicted on a "collateral" matter.
In automobile accident personal injury case, the plaintiff denied, during her deposition testimony, that she used marijuana. The court precluded the defense efforts to cross-examine the plaintiff at trial with the plaintiff's drug screen that was positive for marijuana use.
In so ruling, Nealon noted that the Pennsylvania appellate courts have repeatedly held that "no witness can be contradicted on everything he testifies to in order to 'test his credibility.' The pivotal issues in a trial cannot be 'sidetracked' for the determination of whether or not a witness lied in making a statement about something that has no relationship to the case on trial."
Obamacare and the Collateral Source Rule
A recent trend in Pennsylvania personal injury matters involves defense counsel pointing to the Affordable Care Act to support an argument against any recovery of alleged medical expenses claimed by the plaintiff. The argument is that such expenses are or will be covered by insurance under the Affordable Care Act and therefore, they need not be awarded by a jury.
Plaintiffs argue that the well-settled collateral source rule should preclude any mention of any benefits from a collateral source in an effort to preclude or diminish the recovery of compensation from the alleged wrongdoer.
The issue of whether the defense in a personal injury litigation may refer to the Affordable Care Act during the course of a jury trial was addressed in the case of Deeds v. University of Pennsylvania, 110 A.3d 1009(Pa. Super. 2015). On appeal, the plaintiff argued, in part, that she was "entitled to a new trial because the trial court violated the collateral source rule when it 'improperly allowed [the defendants] to inform the jury that [the plaintiffs'] substantial medical needs were all being attended to at little to no cost to [the plaintiffs'] legal guardian due to the existence of state and federal education and medical benefits programs." The defense referred to Medicaid as well as to how Obama's Affordable Care Act would impact the future care costs in the case.
The Superior Court found these references at trial to be a patent violation of the long-standing collateral source rule, the purpose of which is to "avoid the preclusion or diminution of the damages otherwise recoverable from the wrongdoer based on compensation recovered from a collateral source," and, as such, remanded the case for a new trial.
Notable Shift in Bad Faith Cases
Representing a monumental shift in thinking in bad faith cases, in the case of Wolfe v. Allstate Property & Casualty Insurance, 790 F.3d 487 (3d Cir. 2015), the U.S. Court of Appeals for the Third Circuit ruled that it was not bad faith for a third party liability carrier not to include its insured's exposure to punitive damages in a settlement.
In Wolfe, the Third Circuit remanded an excess verdict bad faith case back for a new trial after ruling that the jury was impermissibly allowed to consider, in this subsequent bad faith claim, the amount of the punitive damages awarded against the tortfeasor at the trial of the underlying third party lawsuit.
In her opinion, Judge Marjorie O. Rendell wrote, "We predict that the Pennsylvania Supreme Court would conclude that, in an action by an insured against his insurer for bad faith, the insured may not collect as compensatory damages the punitive damages awarded against it in the underlying lawsuit. Therefore, the punitive damages award was not relevant in the later [bad faith] suit and should not have been admitted."
The Third Circuit in Wolfe notably stated that "[i]t follows from our reasoning that [a liability] insurer has no duty to consider the potential for a jury to return a verdict for punitive damages when it is negotiating a settlement of a case. To impose that duty would be tantamount to making the insurer responsible for those damages, which, as we have discussed, is against public policy."
A Look Ahead in Post-'Koken' Matters
Another year has passed without an opportunity for the appellate courts to address any of the novel procedural and substantive legal issues that challenge the commonwealth's trial court judges. Hopefully, the next year will be the one where these issues begin to go up the appellate ladder and result in appellate guidance that will serve to assist both the bench and the bar. •
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. Attorney Cummins can be reached at dancummins@comcast.net.
Proving that the Cooper v. Schoffstall rule that a party may discover information on the litigation-related activity and compensation earned by a professional witness also applies to expert witnesses retained by Plaintiffs, Judge Patricia E. Coonahan of the Montgomery County Court of Common Pleas granted a Defendant's motion to compel in this regard in the case of Gaffney v. Cohen, No. 2012-15440 (C.P. Montg. Co. June 22, 2015 Coonahan, J.).
The Gaffney decision is by Order only. The court ruled that the Defendant could proceed by way of a deposition by written interrogatories to gather information on how much the Plaintiff's expert was being paid for his services in the case at hand, as well as on a variety of other financial bias topics dating back three years.
Notably, the court allowed such interrogatories to be submitted not only to the expert the Plaintiff listed as a trial witness but also to those other experts who offered opinions upon which the trial expert relied.
Limitations on Cross-Examination of Lay and Expert Witnesses
By Daniel E. Cummins, Pennsylvania Law Weekly
Editor's note: The author served as defense counsel in Detrick v. Burrus.
It is well settled that "the purpose of ... civil trials is to discover the truth" of the claims and defenses presented by the parties, as the court held in Bailey v. Tucker, 621 A.2d 108, 113 (Pa. 1993). It is equally well settled that, in the search for the truth at trial, it is for the jury to determine the credibility of the witnesses, including expert witnesses, along with the weight to be given to the testimony of any witness presented, as in Ludmer v. Nernberg, 640 A.2d 939, 942 (Pa. Super. 1994).
The most important tool provided to a litigant to test the credibility of parties, witnesses and expert witnesses at trial, and thereby challenge the truth of the adversary's claims, is the right to conduct a thorough and cutting cross-examination.
Given the adversarial nature of trials, issues often arise pertaining to the extent to which a witness can be cross-examined. Recent cases reviewed below confirm that there are indeed some limits to efforts to attack the credibility of both lay and expert witnesses at trial.
Scope of Cross-Examination Not Unlimited
Pennsylvania Rule of Evidence 607(b) provides the general rule that "the credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these rules."
Two recent court decisions illustrate the extent to which a court may limit the scope of a cross-examination of a lay witness or party, as well as the cross of an expert witness, at trial.
Limitations on Cross
In his recent detailed order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co. Feb. 23), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed a motion in limine filed by the plaintiff, Lori Detrick, in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by Detrick's treating doctor which contained a positive result for marijuana use.
Given that Detrick had denied any marijuana use under oath at her deposition, the defense planned to cross-examine her with respect to a urine drug test that was positive for marijuana, to attack her credibility as part of the overall search for the truth of the claims and defenses asserted by the parties at trial.
Citing Pennsylvania Rules of Evidence 401 and 403, pertaining to relevancy, Detrick contended that any evidence of the drug test was inadmissible because it was irrelevant and unduly prejudicial.
In addition to being relevant to attack the credibility of Detrick, who denied marijuana use under oath at her deposition, the defendant, Deidre Burrus, separately asserted that the evidence of the urine drug screen tests ordered by Detrick's post-accident doctor was also relevant to show that her own post-accident treating providers had serious concerns as to her use of prescription narcotic medications, such that the doctor felt it necessary to order a drug screen before prescribing medications to her.
In his opinion, Nealon noted that questions concerning the admissibility of evidence lie within the sound discretion of the trial court. In granting Detrick's motion in limine to preclude this evidence, the court relied upon the law that a witness may not be impeached or contradicted on a "collateral" matter.
Nealon noted that it is a well-settled principle of Pennsylvania law that "the purpose of trial is not to determine the ratings of witnesses for general veracity." The court reasoned that the Pennsylvania appellate courts have repeatedly held that "no witness can be contradicted on everything he testifies to in order to 'test his credibility.'" The court in Detrick also more specifically cited to a criminal court case holding that "general questioning concerning the use of drugs does not bear on the witnesses' 'character for truth.'"
The court also found that, even if such evidence was somehow relevant, this evidence was inadmissible under Rule 403, since its probative value was outweighed by the danger of unfair prejudice to Detrick.
The case, which was not appealed, therefore supports the notion that the permissible scope of a cross-examination of a party or lay witness is not unlimited. As noted below, the same rule prohibiting the cross-examination of a witness on collateral matters was recently applied in the context of expert witnesses.
Cross of an Expert Witness Also Has Limitations
By way of background, a few years back, a hot trend in Pennsylvania civil litigation matters involved the extent to which parties could discover information as to the extent of litigation-related activity by, and compensation for, opposing expert witnesses. Such discovery was gathered to be utilized at trial to expose experts as biased witnesses, or "hired guns," for the opposing side.
Over the years, since the handing down of appellate court decisions in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006), and Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007), allowing such discovery in limited circumstances, litigating attorneys gathered a treasure trove of such bias information pertaining to experts. Attorneys on both the defense and the plaintiffs side of the bar have amassed and shared such information on various experts, to the point that the information has become quite extensive with respect to certain experts.
Now that such voluminous discovery of litigation-related activity and compensation has been gathered on certain experts, the question has become to what extent all that information can be fairly utilized to cross-examine an expert at trial.
In its recent decision in Flenke v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015), the Superior Court ruled on the extent to which an expert may be cross-examined at trial with such large quantities of bias information discovered on that expert.
The Flenke case arose out of a motor vehicle accident. The question presented centered around the plaintiff's cross-examination of the defense's independent medical expert.
The Superior Court ruled that, while expert witnesses may generally be impeached for bias, including frequent work for the same side in litigation, there are limits to such cross-examination imposed by the law.
Under the well-established rule of law that holds that a witness cannot be cross-examined on collateral matters, the court in Flenke noted that even bias evidence can become too intrusive and so collateral, such that it should be limited, or even barred, at trial.
In Flenke, the plaintiff was permitted to cross-examine the defense expert as to the compensation earned by the expert in the case at hand, as well as other cases, within a reasonable limitation.
Yet, the Superior Court found that the plaintiff's effort to conduct a detailed review of the defense expert's 50 most recent reports involving other persons would have introduced collateral issues into the case. As such, this evidence was found to have been properly excluded by the trial court.
The court in Flenke also ruled that cross-examination pertaining to the expert's work for the defendant's insurance company was properly excluded, as it would have introduced the impermissible topic of insurance into the case.
Based upon the above cases, the extent to which the veracity of lay and expert witnesses can be tested at trial has some limitations. It appears that, under Pennsylvania law, while a witness can be exposed as a liar, liar, one cannot go so far as to symbolically light that witness' pants on fire.
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.
At times, a defense expert report unfavorable to the defense position comes in the mail that makes a case more troublesome, or in some cases, easier, to settle. Where such a case instead proceeds to trial, a Defendant may choose not to call the IME doctor as a trial witness and issues arise over the extent to which a Plaintiff may attempt to utilize the defense expert's report to further the Plaintiff's case-in-chief.
An article of mine entitled "To Call or Not to Call: Dilemma Created by Unfavorable Expert Report" addressing these issues was recently published in the Spring 2015 edition of the Civil Litigation Update (Vol. 19, No. 2 Spring 2015) issued by the Civil Litigation Section of the Pennsylvania Bar Association.
Anyone wishing to review this article may click this LINK..
Here is a LINK to an Opinion out of the Philadelphia County Court of Common Pleas in the case of Sutch v. Roxborough Mem. Hospital, July Term 2009, No. 00901 (Phila. Co. Feb. 3, 2015) in which the court requests the Superior Court to affirm its entry of a substantial sanction of nearly a million dollars against a defense counsel for a violation of the trial court's preclusion order with respect to expert testimony at trial.
In Flenke
v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015 Stabile, Bowes,
Ott J.J.)(Op. by Stabile, J.), the Pennsylvania Superior Court ruled that,
while e expert witnesses may be impeached for bias, including frequent work for
the same side in litigation, including for insurance carriers, there are limits
to such cross-examination.
This case arose out of a motor vehicle accident. The specific evidentiary issues in this matter centered around the Plaintiff's cross-examination of the defense medical expert.
Under the well-established rule of law that holds
that a witness cannot be cross-examined on collateral matters, see J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa.Super. 2004), the court in Flenke noted
that even bias evidence can become too intrusive and collateral. In this matter, as is becoming more and more
frequent in civil litigation matters ever since the Cooper v. Schoffstall and Feldman
v. Ide decisions set down the parameters for gathering discovery on an
expert's litigation-related activity and compensation, the jury heard, and
plaintiff hammered home during closing argument, the income and
litigation-activity bias evidence concerning the defendant’s expert.
On appeal, the Plaintiff was challenging the
trial court's limitations on the use of this type of evidence at trial.The Superior Court found that the additional
income testimony that was excluded, even if error, was cumulative under Pa.R.E. 403 and was,
therefore, harmless in the end.
The Superior court more specifically found that detailed
review of the expert’s fifty most recent reports involving other persons would
have introduced collateral issues into the case.As such, this evidence was found to have been
properly excluded by the trial court.
The Superior Court also ruled that evidence of
the expert’s work for defendant’s "insurance company" was properly
excluded as it would have introduced the impermissible topic of insurance into
the case. In the end, the Superior Court affirmed the trial court's denial of the Plaintiff's request for a new trial.
Anyone wishing to review this notable opinion
pertaining to the cross-examination of experts at trial on the issue of bias
may click this LINK.
I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.
