Counsel's Failure to Edit Videotape Deposition of Expert For Trial As Agreed By Parties Found to be Harmless Error

In the case of Bell v. O’Neill, Oct. Term 2019 No. 03845 (C.P. Phila. Co. Nov. 16, 2022 Foglietta, J.), the trial court issued a Rule 1925 Opinion following the entry of a verdict in favor of the Plaintiff in an automobile accident litigation matter.

The court denied the Defendant’s post-trial motion seeking a new trial and related relief.

In part, the court found that the failure of the Plaintiff to redact videotape deposition testimony of the Plaintiff’s medical expert as agreed to by the parties did not warrant a mistrial.  

In the testimony at issue, the Plaintiff's medical expert stated during his testimony that jurors “can see” with their own eyes the Plaintiff’s injury in the medical imaging.  The court noted that the erroneous playback of this testimony, which was rephrased during the course of the videotaping after an objection was asserted by defense counsel, did not warrant a declaration of a mistrial where other admissible testimony made similar points.

The trial court noted that it had also issued a prompt curative instruction admonishing the jury to disregard the testimony at issue.

The court also found that, if there was an error, it was a harmless error.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 14, 2023).

Source of image:  Photo by Sandi Clarke on www.unsplash.com.

 

Federal Court Addresses Right to Identify Insurance Carrier Defendant By Name at Post-Koken Trial; Also Compels Both Parties to Present Medical Experts as Live Witnesses

In the case of Whitlock v. Allstate Fire & Cas. Ins. Co., No. 2:20-CV-00373-KSM (E.D. Pa. Oct. 13, 2022 Marston, J.), the court addressed various Motions In Limine.

At a pre-trial conference, Allstate requested to be referred to at the trial in the name of the non-party tortfeasor as opposed to as "Allstate."  This the court refused.    

Of note, the court ruled that Federal Rule of Civil Procedure 411, regarding the admissibility of insurance evidence, applies only where negligence or other wrongful conduct is at issue. The court noted that this rule did not apply in a contract action involving an insurance company.

The court also found that evidence that the Defendant is an insurance company being sued under a policy of insurance was not unduly prejudicial under F.R.C.P. 403. The court noted that Pennsylvania law does not exclude insurance evidence under these circumstances.

As such, the court found that Allstate had not established a reason to use another name for the carrier at trial or that the carrier would be prejudiced by the use of its name at trial in front of the jury.    

In another notable ruling in this decision, the court stated that, before a witness’ recorded deposition testimony is admissible in lieu of live testimony, there must be an exceptional showing of reasons for the witness’ unavailability.

The court stated that the fact that medical witnesses are busy seeing other patients is not an exceptional circumstance. The Court stated that it is well known that doctors are almost always busy. The court stated that, to recognize a “busy witness” exception would expand the exception to swallow the rule favoring live testimony.

As such, the court compelled both parties to present their medical expert's testimonies live at trial instead of by way of video deposition.    

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 the Reed Smith law firm for bringing this case to my attention.

Code of Civility Relied Upon For Admonishment of Counsel

Can the Code of Civility serve as a basis of a trial court Order admonishing counsel in a case for conduct in litigation? 

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. June , 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Commons addressed numerous discovery related motions filed by each party in what he described as an “exceedingly acrimonious motor vehicle accident litigation.” Of note, the Court granted the Plaintiff’s motion to admonish the defense attorney under the Code of Civility.

The court addressed issues regarding the defense efforts to compel discovery depositions of three (3) treating physicians that the Plaintiffs have identified as expert witnesses or to alternatively require the Plaintiff to call those physicians as experts at trial, to strike the Plaintiffs’ objections to discovery responses and compel more specific answers, and to be granted “priority” with respect to the ability to question a particular deponent first during her deposition. 

The Plaintiffs’ motions requested the issuance of an Order barring further discovery related to three (3) discontinued medical malpractice actions that were filed against the Plaintiff, who happened to be a physician. The Plaintiffs also sought the production of the Defendant driver’s cell phone records and Answers to Interrogatories regarding the defense expert’s litigation activity and income. 

Also of note, the court addressed the Plaintiffs’ motion seeking a formal admonishment of the defense counsel for certain conduct to date that the Plaintiffs asserted was in violation of the Code of Civility and the Rules of Professional Conduct particularly with reference to written communications by email between the parties. 

The court’s 53 page Opinion offers a good read and a thorough analysis of all of these issues presented. 

In the end, the court agreed to grant in part and deny in part the various motions presented. With respect to the Plaintiffs’ motion regarding the alleged violations of the Code of Civility, the court agreed that an admonishment to the defense counsel to be more attentive to the principles of professionalism was warranted.

Anyone wishing to review a copy of this decision may click this LINK.

Pennsylvania Superior Court Addresses Admissibility of Expert Testimony At Trial

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).

Protective Order Relative to Defendant Surgeon's Deposition Denied in Medical Malpractice Action

In the case of Freas v. Aziz, No. GD - 004285, 1334 WDA 2019 (C.P. Allegh. Co. Oct. 30, 2019, Hertzberg, J.), the court issued a Rule 1925 Opinion to explain to the Superior Court why it denied a Motion for a Protective Order to shield a Defendant surgeon from providing deposition testimony in a medical malpractice case. The court noted that the Motion for a Protective Order had been denied because the Motion simply stated that the surgeon could not participate due to a medical condition and did not make a particularized fact-intensive showing of the need for such an Order.

The trial court noted that the Defendant surgeon provided a brief letter from another doctor who advised that the Defendant surgeon’s “medical condition does not permit him to participate in any depositions and/or give deposition testimony.” No further details were provided in the letter or in the motion as to why the surgeon could not participate in a deposition. 

According to the Opinion, the trial court had issued an Order deferring a final ruling on the Motion for Protective Order regarding the surgeon until a deposition had been completed of the other doctor who provided the letter, that other doctor providing his medical records on the Defendant surgeon, and the Defendant surgeon undergoing an independent medical examination relative to the Motion.

Overall, the trial court asserted that the Defendant’s vague explanation as to why the doctor could not participate in a deposition due to a medical condition failed to meet the standards for the entry of a protective order. 

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2019).

Judge Nealon of Lackawanna County Addresses Proper Scope of Deposition Questions to a Medical Malpractice Defendant Doctor

Should a Defendant physician in a medical malpractice case be required to answer questions regarding the standard of care applicable to the treatment she or he provided?

That was the issue decided by Judge Terrence R. Nealon in the case of Howarth-Gadomski v. Henzes, No. 18-CV-2585 (C.P. Lacka. Co. Nov. 27, 2019 Nealon, J.).

According to the Opinion, a Defendant physician’s attorney refused to permit the physician to answer questions at a deposition seeking the doctor’s medical opinions, including those related to the applicable standard of care.

The Plaintiff filed a motion seeking to compel the doctor to answer those questions during a second deposition.

In opposition, the Defendant physician asserted that he cannot be compelled “to testify against himself,” and asserted that the Plaintiff must present their own expert testimony to address the standard of care.

The Plaintiff countered the argument that, under Pa. R.C.P. 4003.1(c), it is not a ground for objection to any discovery inquiry that the information sought involves an opinion.

The court ruled that no Pennsylvania statute, rule, or appellate authority entitles a medical malpractice Defendant/deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.

Judge Nealon noted that the explanatory comments to the Rules of Civil Procedure 4003.1, 4003.5, along with Pennsylvania case law, support the proposition that a party deponent may not object to deposition questions on the basis that they seek opinion testimony. Those rules also confirm that a Defendant-physician need not author a pre-trial expert report since any Plaintiff may discover that party’s opinions at a deposition.

As such, the court in this matter granted the Plaintiff’s Motion to Compel the Defendant physician to attend a second deposition. The court also ordered the Defendant physician to answer medical opinion and standard of care questions.

The court did note that, during the second deposition, defense counsel may direct the Defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privileged, to enforce and evidentiary limitation established by any earlier court rulings in this case, or to present a Motion for a Protective Order based on the grounds allowed under Pa. R.C.P. 4012(a).

In this decision, the court also noted that, if the Defendant-physician and his attorney chose to discuss the subject matter of this malpractice care during any recess of the deposition, the questioning attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

Anyone wishing to review a copy of this decision may click this LINK.

Court Addresses Apportionment of Costs of Expert Depositions in Federal Court Civil Litigation Matter

In the case of Hunter v. Kennedy, No. 3:17-cv-00007 (M.D. Pa. Dec. 4, 2018 Saporito, Mag. J.), the court addressed discovery disputes involving the apportionment of expert witness fees in a medical malpractice matter. 

According to the Opinion, the case arose out of an incident during which Plaintiff fell from a ladder and injured her left ankle which was allegedly followed by negligent medical care by her healthcare providers. 

During the course of discovery, the parties completed some depositions of expert witnesses and a dispute arose between the parties over the allocation of expert witness fees.

The Defendants filed a Joint Motion for the Apportionment of the Expert Deposition Costs.   More particularly, the issues involved whether the Plaintiff’s treating physician, a podiatrist, was also to be treated as an expert witness, and what, if any, apportionment of her deposition fees should be made amongst the parties.   A secondary issue was whether the deposition fees for the remaining expert witnesses should be apportioned.

Relative to the deposition fees requested by the Plaintiff’s treating podiatrist, the court noted that the Plaintiff had previously designated that doctor as an expert witness by correspondence to all parties in the matter.   The Plaintiff also produced two (2) reports prepared by that doctor.  

In this matter, the court was being asked to decide whether the Plaintiff’s treating podiatrist was deposed as an expert witness or a fact witness and, if the deposition was of the doctor as an expert witness, whether the Defendants were obligated to pay that doctor a reasonable expert witness fee or the statutory witness fee under Federal Rules.  

The Defendants were arguing that, as a treating doctor, the witness was a fact witness rather than an expert witness and that they we were only obligated to pay the statutory $40.00 witness fee under the Federal Rules.    The Defendants argued that the two (2) one (1) page reports issued by this doctor did not satisfy the extensive report requirements relative to expert witness reports under the Federal Rules.  Judge Saporito noted that the Federal Rules of Evidence do not distinguish between lay and expert witnesses, but “rather between expert and lay testimony.”   See Op. at p. 3.

Judge Joseph F. Saporito, Jr.
M.D.Pa.

 

Federal Magistrate Judge Saporito noted that, under Third Circuit precedent, treating physicians may testify as lay witnesses regarding diagnoses and treatment under some circumstances.  However, the testimony of treating physicians on prognosis and causation will inherently be based upon scientific, technical, or specialized knowledge within the scope of Rule 702 of the Federal Rules of Evidence pertaining to expert testimony.   Accordingly, the court noted that, to the extent a party intends to offer the testimony of a treating physician on issues of prognosis or causation, that party is required to disclose the treating physician as an expert witness under Rule 26(a)(2)(A).  

The court noted that a treating physician is typically treated as a “non-retained” expert subject to less strenuous disclosure requirements as compared to experts specifically retained to testify in a litigation.  

To determine whether a party retained or specially employed a treating physician to supply expert testimony, the relevant test is “whether the treating physician acquired his opinion as to the cause of the Plaintiff’s injuries directly through his treatment of the Plaintiff.”  See Op. at 6.  

Applying the law to the case before him, Magistrate Judge Saporito, found that the Plaintiffs satisfied their disclosure requirements under Federal Rule 26 relative to the treating doctor as a non-retained expert witness.   The judge also ruled that it was clear that the opinions that the treating doctor was expected to offer, as evidenced in her reports, included opinions regarding prognosis and causation which opinions were acquired directly through the doctor’s treatment of the Plaintiff.   Consequently, the court found that the treating doctor had been properly identified as a witness whom that the Plaintiffs intended to use and present expert evidence at trial and that the Plaintiffs had satisfied their disclosure obligation under Rule 26(a)(2)(C).  

Judge Saporito also confirmed that the Federal Rules provide that a party may depose any person who has been identified as an expert whose opinions may be presented at trial.   The rules further provide that, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.   The court noted that the Defendants in this matter availed themselves of the Federal Rules in taking the deposition of the treating doctor and had proffered no reason why manifest injustice would be result from requiring them to pay the doctor a reasonable fee for her time spent being deposed.

The court went on to determine that the doctor’s fee request was reasonable. The fee request was $2,500.00 for the first two (2) hours and $750.00 for each additional hour.  

While the court agreed that the fee schedule noted by the doctor was reasonable, the court did not find it reasonable for the doctor to charge the amounts she charged to attend two (2) separate deposition dates as the second deposition date was effectively a continuation of the same deposition that had been adjourned on the first day due to the late hour of the deposition, the late production of medical records, and the difficulty among the parties and the witness in scheduling the second day of the deposition.  

As such, the court directed that the Defendants, as the deposing parties, were responsible for the payment of the doctor’s reasonable expert fee at an amount slightly less than what the doctor was claiming for the two (2) dates. 

As to the second issue regarding the apportionment of fees charged by the other experts in the matter, the court ruled that the method set forth in Rule 26(b)(4)(E) be followed.  Under that Rule, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for the time spent responding to the discovery.  

In so ruling, the court rejected the Defendants’ request that the obligation to pay expert fees for depositions be apportioned between the parties based on their respective percentage of time each side spent examining the expert at the deposition.  
Anyone wishing to review a copy of this decision by the United States Magistrate Judge Joseph F. Saporito, Jr. may click this LINK

I send thanks to Attorney Thomas Foley, Jr. of the Foley Law Firm in Scranton, Pennsylvania for bringing this decision to my attention.