Federal Court Addresses Scope of Permissible Liability Expert Testimony in a Products Liability Case

In the case of Borden v. Mainline Conveyor Systems, Inc., No. 4:23-CV-01486 (M.D. Pa. July 21, 2025 Mehalchick, J.), the court addressed Motions In Limine filed by a Plaintiff in a products liability case that sought, in part, to preclude certain testimony by a defense engineering expert.

According to the Opinion, the Plaintiff was working for a container company when he stepped on a mesh belt conveyor that activated and threw him off, resulting in injuries. 

The Plaintiff sued the conveyor belt manufacturer, claiming that the company was strictly liable for manufacturing a defective and unreasonably dangerous device.

The court otherwise rejected the Plaintiff’s Motion In Limine to preclude the defense from pursuing an assumption of risk defense. 

Here, the court found that there were issues of fact regarding whether or not the Plaintiff was required by his employer to walk over the conveyor belt and whether the Plaintiff was aware of the risk that the conveyor belt would be inadvertently activated. Given these issues of fact, the defense was permitted to proceed with its assumption of the risk defense.

In her Opinion, Judge Mehalchick limited the Defendant’s liability expert’s opinion and ruled that the defense expert would not be permitted to testify regarding the import of a contract between certain parties relative to the machine at issue, in terms of which company was responsible for certain actions. The court found that such testimony would be impermissible interpretation of a contract by the expert rather than the offering of an opinion on customs and practices within the conveyor manufacturing industry.

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


Source: Article: “Engineering Expert’s Testimony Improperly Waded Into Contract, Pa. Fed. Judge Rules In Products Liability Dispute,” By Riley Brennan of the Legal Intelligencer (July 21, 2025).

Court Addresses Whether Topic of Expert Opinion Is Outside Scope of Understanding of Lay Jurors

In the case of Dragann v. Florey Lumber Co., No. 2020-CV-4118 (C.P. Lacka. Co. July 18, 2025 Nealon, J.), the court addressed a Motion for Summary Judgment filed by an Additional Defendant relative to a Joinder Complaint. 

According to the Opinion, this case arises out of issues related to the construction of a residential home. More specifically, after the Plaintiffs moved into the home, issues allegedly arose with regard to the white limestone that had been utilized as part of the construction of the exterior of the home. The Plaintiffs alleged that the limestone had deteriorated, which allowed for water infiltration.

One of the original Defendants asserted a claim against an Additional Defendant and asserted that, due to the original Defendant’s lack of prior experience in using limestone on exterior surfaces on homes in Northeastern Pennsylvania, that original Defendant allegedly relied upon the Additional Defendant and its expertise with limestone to determine whether and how the limestone could be installed safely in the climate of Northeastern Pennsylvania.

The claim in the original Defendant’s Joinder Complaint sounded in negligent misrepresentation against the Additional Defendant.

Judge Nealon provided a current overview of the status of the law pertaining to negligent misrepresentation claims.

One of the essential questions in this case was whether expert testimony is required to sustain a negligent misrepresentation claim. The court noted that the litigants did not produce any precedent in this regard and that the court’s own research revealed that such expert evidence is generally unnecessary.

The court noted that, the subject matter at issue was not so related to a particular science, profession, business or occupation as to be beyond the ordinary knowledge or information customarily possessed by the average layperson or juror. Accordingly, the court ruled that no expert report was required in order to establish a case of negligence on the part of the Additional Defendant.

Rather, the court found that jurors would be capable of determining whether the Additional Defendant’s representative made the alleged representations regarding the suitability of exterior limestone in the local climate, that the Additional Defendant failed to conduct a reasonable investigation as to the truthfulness of those representations, that the original Defendant justifiably relied upon the misrepresentations and that the original Defendant’s justifiable reliance upon the misrepresentations ultimately caused the harm alleged by the homeowners.

Accordingly, based on the above law and findings, the court denied the Additional Defendant’s Motion for Summary Judgment.

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

Superior Court Overturns Med Mal Defense Verdict Based on Erroneous Evidentiary Rulings by Trial Court

In the case of Hagelauer v. Mainline Emergency Medicine Associates, LLC, No. 2064 EDA 2024 (Pa. Super. June 2, 2025 Panella, P.J.E., Beck, J., and Ford Elliot, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court addressed various issues raised following the entry of a defense verdict in a medical malpractice case.

According to the Opinion, the allegations pertained to the treatment, or lack thereof, relative to a deceased Plaintiff who suffered cardiac arrest.

The Pennsylvania Superior Court overruled the defense verdict based upon a finding, in part, that the trial court had improperly barred the Plaintiffs from cross-examining the Defendants’ expert about an article that the expert had authored which conflicted with his trial testimony.

The Superior Court noted that an expert's authoring of an article and including a reference to the article in his CV constituted an adoption of the information contained in the article by that expert. The appellate court found that it was not credible that an expert would author an article that she or he did not adopt and support.

As such, the preclusion by the trial court of the cross-examination of the Defendant's expert on that article was found to be reversible error as the Superior Court ruled that the jury missed out on important information that might have colored its evaluation of that expert’s credibility.

The Superior otherwise addressed a separate issue of hearsay within hearsay that arose during the course of the trial.

The appellate court noted that it was not an abuse of discretion by the trial court to have excluded a note written by the Plaintiff as inadmissible double hearsay.

The note at issue included a compound statement referred not only to the Plaintiff's state of mind, but also referenced medical instructions.

While the portion of the statement that referenced the Plaintiff's state of mind may have been admissible under Pa.R.E. 803(3)'s hearsay exception related to a declarant's statement of their then-existing state of mind or condition, here, the court noted that compound statements such as the one at issue were not admissible.

Rather, the court noted that, given the existence of hearsay within hearsay, the trial court properly excluded the evidence.

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


Source: “Bad Evidentiary Ruling In Med Mal Trial Spurs Pa. Appeals Court To Toss Hospital’s Defense Verdict,” By Aleeza Furman of The Legal Intelligencer (June 4, 2025).

Soure of image: Photo by Katrin Bolovtsova on www.pexels.com.

Court Addresses Admissibility of Expert Opinions

In the case of Twigg v. Varsity Brands Holding Co., No. 4:23-CV-00067 (M.D. Pa. March 7, 2025 Brann, C.J.), the court provided the latest pronouncement on the Rules of Admissibility for an expert witness under Federal Rule of Evidence 702.

This products liability case arose out of an accident during which a baseball coach was struck by a batted ball that went through an L-screen net while he was pitching batting practice.

In his decision in this case Chief Judge Matthew W. Brann granted in part and denied in part Rule 702 motions regarding experts in the case. In so ruling, the court noted the following principles of law.

An expert’s lack of technical background does not render an expert unqualified where that expert has sufficient practical experience.

The court also ruled that an expert need not have familiarity with a product in order to evaluate the adequacy of a manufacturer’s testing protocols.

The court also noted that an expert may rely solely upon material provided to the expert by counsel. However, that expert is not permitted to rely upon material that has not been disclosed to the opposing party.

The court also reaffirmed the rule that an expert may not testify about matters outside the scope of their opinions.

The court also noted that experts may assume the truth of the contested facts asserted by the parties who hired them. The weight of such opinions depends on how the jury ultimately views the underlying facts.

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 Reed Smith office in Philadelphia for bringing this case to my attention.

Court Denies Plaintiff's Motion to Preclude Defendant From Utilizing Second Expert After First Expert Died

In the case of Roubert v. Amazon, No. 2:21-CV-03091-CMR (E.D. Pa. Feb. 24, 2025 Rufe, J.), the court addressed issues involving the death of a Defendant’s expert during the course of a personal injury civil litigation matter.

According to the Opinion, when the Defendant’s first medical expert passed away, the Plaintiff filed a Motion In Limine to preclude the medical testimony of the Defendant’s second expert as inadmissible under Federal Rule of Evidence 703 and/or to preclude that second expert from referencing or relying upon the expert report of the first expert.

The court ruled that a deceased physician’s expert opinion was still permitted to be utilized by subsequent experts in their testimony.

The court reasoned that it was common standard and practice for a doctor to review medical records and other reports when rendering their own diagnoses. Accordingly, the court found that it was proper for the Defendant’s new expert to rely upon the deceased expert’s report which was issued after the deceased expert had personally examined the Plaintiff. The court noted that this was proper given that the evaluation of medical records and reports is a liable method for an expert to form an expert opinion regarding a party’s medical condition.

The court also noted that the Plaintiff would not be prejudiced by the second expert’s testimony given that there was nothing improper about a medical report prepared solely for litigation.

The judge additionally confirmed that FRE 703 does not require that a party be able to cross-examine every author of a record upon which the testifying expert relies upon at trial. Any potential prejudice resulting from their new expert testifying regarding the deceased expert’s report could be mitigated by cross-examination of the testifying doctor as to the basis of his opinion, by presenting contrary expert testimony, or by way of the presentation of careful instructions to the jury on the burden of proof.

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


Source: Article – “Fed. Court OKs Use Of Deceased Expert’s Report In Medical Testimony,” by Riley Brennan of the Legal Intelligencer (Feb. 25, 2025).

Superior Court Affirms Entry of Nonsuit Where Trial Court Precluded Plaintiff's Liability Expert For Giving a 'More Likely Than Not' Expert Opinion

In the case of Peterson v. Stacy’s Pizza, Inc., 315 EDA 2024 (Pa. Super. Jan. 14, 2025 Dubow, J., Sullivan, J., and Olson, J.) (Op. by Dubow, J.; Olson, J, concurring), the Pennsylvania Superior Court affirmed the entry of a nonsuit entered by the lower court after finding that the Plaintiffs did not meet their burden of proving the case presented.

According to the Opinion, the Plaintiff was allegedly injured when he was hit by a swinging door while making a delivery.  The Plaintiff retained a liability expert to testify at trial on a opinion on whether the door in question was defective.   

In this decision, the Pennsylvania Superior Court again confirmed that an expert opinion on causation to a reasonable degree of engineering certainty that the condition on the Defendant’s property “more likely than not” caused the Plaintiff’s injury was properly excluded by the trial court as not actually being an expert opinion to a reasonable degree of certainty.

The court noted that the Plaintiff’s expert’s opinion only stated that the Defendant’s improper maintenance was more likely than not the cause of the injury.

The Superior Court noted that, because the Plaintiff in this case had rested his case when it became clear that a fatal expert exclusion would cause a nonsuit, and where the Plaintiff did not thereafter present any evidence of damages, any error possibly committed by the trial court in terms of entering a nonsuit would have been harmless in any event.

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.

Superior Court Reaffirms The Law on Limitations To Scope of Expert Opinions By Treating Physicians

In the case of Kunkel v. Abington Memorial Hospital, No. 2024 Pa. Super. 298 (Pa. Super. Dec. 13, 2024 Stabile, J., Lane, J., and Lazarus, J.) (Op. by Stabile, J.) (Lazarus, J., concurring in the result), the Pennsylvania Superior Court addressed various issues regarding expert testimony in a medical malpractice case.

On one issue, the court confirmed that it was not an abuse of discretion by the trial court to exclude one of the Plaintiff’s identified expert witnesses as cumulative. The court generally noted that cumulative evidence is additional evidence that supports a fact already established by other evidence in the case.

On another issue of note, the Pennsylvania Superior Court reaffirms the well-settled rule that, while treating physicians may testify as experts without being identified under Pa. R.C.P. 4003.5(a), such doctors are limited to opinions formed in the course of their treatment, not opinions developed in anticipation of litigation.

Here, the court found that the causation opinions of two (2) of the Plaintiff’s treating physicians were properly excluded by the trial court because those physicians only formed their opinions on causation in preparation for this litigation.

The court noted that its review of the medical records from those physicians did not contain any hint of any such opinions on causation. The Superior Court agreed that the exclusion of those opinions on causation were required by the Plaintiff’s failure to identify those experts as expert witnesses for trial during the course of discovery as required by the Rules of Civil Procedure.

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.

Expert Not Permitted to Testify as to the Requirements of the Law

In the case of Major v. Five Star Equipment, Inc., No. 2020-CV-3550 (C.P. Lacka. Co. Nov. 15, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the extent to which an accident reconstruction expert could comment on the applicable law at trial in a motor vehicle accident case.

In addressing this issue, Judge Nealon provided a thorough review of the current status of the law regarding pedestrians crossing roadways in Pennsylvania. 

Relative to the particular issue in question, the court ruled that it is well settled that an expert is not permitted to give an opinion on a question of law and that, therefore, an expert witness may not be offered to testify as to the governing law or what the law required.

As such, in this case, the Plaintiff’s accident reconstruction expert was prohibited from providing testimony or expressing any opinion regarding the governing law pertaining to the duties of pedestrian and motorists at intersections or within crosswalks.

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

Source of image:  Photo by Vinta Supply Co. NYC on www.pexels.com.

 

Summary Judgment Granted in Favor of Porsche Due to Failure of Plaintiff's Expert Testimony

In the case of Riad v. Porsche Cars M.A. Inc., No. 18-5175-KSM (E.D. Pa. July 30, 2024 Marston, J.), the court granted summary judgment to the defense in a products liability action.

The court noted that the Plaintiff failed to prove causation, which is necessary element in a products liability action. The court additionally noted that causation requires expert testimony where the issues are medically complex and such testimony must be to a reasonable degree of medical certainty in order to be admissible.

In this case, the court noted that the Plaintiff’s expert denied having any opinion to a reasonable degree of medical certainty. The court noted that testimony using phrases like “likely” or referring to “possibilities” do not equate to testimony to a reasonable degree of medical certainty.

Given that the Plaintiff was found to be without admissible causation evidence, the Defendant was granted summary judgment.

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

Superior Court Confirms That, At Times, Plaintiff Can Prove Obvious Injuries Without Medical Expert

In a decision marked as "Non-Precedential" in the case of Kent v. Williams, No. 1855 EDA 2023 (Pa. Super. Feb. 13, 2024 Murray, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Murray, J.), the Pennsylvania Superior Court reversed the entry of a nonsuit by a trial court in a fall down case.

According to the Opinion, the Plaintiff fell while on a ladder.  The Plaintiff sued the Defendant for not properly securing the ladder and/or providing a defective ladder.    

In this case, the Superior Court noted that a compulsory nonsuit cannot be entered prior to trial but can be treated as an entry of summary judgment by the trial court on appeal.

The appellate court additionally ruled in this case that a medical expert is not necessary to testify as to those types of injuries that may fall within the common experience and understanding of lay people on a jury, such as certain injuries that may result from a fall-down event where, as here, the Plaintiff fell 15 feet down from a ladder and landed on the surface below and allegedly sustained immediate injuries.

The court otherwise ruled that a personal injury Plaintiff is competent to testify as to his or her pain and suffering.

The appellate court additionally found that the trial court had erred in excluding the Plaintiff’s medical records entirely as hearsay. The Superior Court noted that, while some medical records or portions of records may indeed be hearsay, other portions may contain statements made for medical diagnosis which would fall under an exception to the hearsay rule. The trial court was ordered to consider each medical record individually on remand.

Anyone wishing to review a copy of this non-precedential 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.

Source of image:  Photo by Raphael Brasileiro on www.pexels.com.

Federal Court Addresses Motions In Limine Regarding Accident Reconstruction, Biomechanical, and Medical Experts in a MVA Case

In the case of Chebbani v. U.S. Dept. of Agric., No. 5:21-CV-04298-JMG (E.D. Pa. May 1, 2023 Gallagher, J.), the court addressed cross-Motions In Limine filed by Plaintiffs and Defendants in a motor vehicle case to preclude each party’s expert witnesses in this federal court case.

The Plaintiffs filed a Daubert motion seeking to preclude the opinions of the Defendant’s accident reconstruction expert and biomechanical engineering expert.

The Defendant filed a motion to preclude the testimony of a neurologist and pain management doctor who conducted an examination of the Plaintiff.

Relative to the Plaintiff’s motion to preclude the expert opinion of the accident reconstructionist and the biomechanical engineering expert retained by the defense, it was noted that there was an opinion by the defense expert that the Plaintiff’s vehicle was contacted at 2.5 mph and that the Plaintiff’s alleged injuries were, therefore, not consistent with the mechanism of injury.

The Plaintiff challenged the reliability of the experts’ opinions on the grounds that the experts did not conduct a physical examination of the vehicles.

The court denied the Plaintiff’s motions and noted that, the Defendant’s experts were unable to examine the vehicles because they were no longer available by the time the Complaint was filed. It was otherwise noted that the Defendant’s experts were able to examine at least twenty-one (21) other pieces of evidence, including photographs of the vehicles and an analysis of the software that the experts utilized to render their opinions.

The court also found that the biomechanical expert's opinion was supported by citations to pertinent studies.  The court also noted that the biomechanical expert for the defense had properly relied upon the opinion of the accident reconstruction expert who opined that the accident had occurred at a minimum speed.

As such, the Defendant’s experts’ opinions were found to be reliable. Accordingly, the Plaintiff’s motion to preclude those expert opinions was denied.

The Defendant’s motion to preclude the expert opinion of the Plaintiff’s neurologist who had completed an examination of the Plaintiff was granted in part and denied in part.

The court found that the neurologist’s opinions and diagnoses regarding Plaintiff’s alleged injuries were partially admission.

The court confirmed that it would allow the doctor’s opinions that the Plaintiff had suffered post-concussive syndrome and post-traumatic headaches as a result of the accident based upon the doctor’s educational experience, the doctor's review of the records from before and after the accident, the physical examination of the Plaintiff, and the Plaintiff’s history.

However, the court stated that the Plaintiff had failed to show that the doctor’s diagnoses of an ocular motor dysfunction and a left shoulder sprain were reliable given that those conditions were merely mentioned in the Plaintiff’s medical records and that no such symptoms were noted to be present during the doctor’s examination of the Plaintiff.

The court also noted that the doctor’s diagnoses of a cervical sprain/strain injury and myofascial pain was not reliable or admissible where the Plaintiff had been treated for neck pain before the accident and the examining doctor did not review those records.

Accordingly, the court found that the doctor failed to thoroughly consider alternative causes for the diagnosis other than the accident.  As such, the defense motion was granted in part and denied in part.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 25, 2023).

No Medical Expert Testimony Needed To Establish Causation Where Causal Relationship is Obvious

In the case of Bixler v. Lamendola, No. 3:20-CV-01819-CCC (M.D. Pa. July 5, 2022 Connor, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case after finding that expert medical testimony was not required to establish causation given that the driver’s testimony would allow the jury to infer that the claimed injuries resulted from the accident.

According to the Opinion, at the time of the accident, the Plaintiff was driving an empty tractor trailer at a speed of approximately 45-50 mph when the Defendant, who was traveling in from of the Plaintiff in the same direction, attempted to make a U-turn. More specifically, the Defendant’s vehicle moved towards the right side of the road and/or the right shoulder and then, as the Plaintiff’s vehicle approached, the Defendant pulled back onto the road and attempted to turn his vehicle into the opposing lane of travel. The Plaintiff was unable to avoid a collision which occurred while the tractor trailer was still moving at about 25-30 mph.

It was noted that the vehicle that the Plaintiff was operating at the time of the accident was rendered inoperable for about four (4) months following the accident due to the damages sustained.

The Plaintiff testified that, although he was wearing a seat belt at the time of the accident, he believed he struck parts of the interior of his vehicle because he had a bump on his head as well as bumps and bruises on his knees and arm. The Plaintiff did admit that he did not immediately notice any pain and declined medical treatment at the scene of the accident. 

Approximately two (2) days later, the Plaintiff began to experience left hand numbness and then sought out medical treatment with his family doctor the day after that at which point he was referred to a neurologist and then began to treat on a continuing basis thereafter.

Post-accident diagnostic tests including x-rays, an MRI, and a nerve test lead the neurologist to diagnose the Plaintiff with a bulging disc in his neck, causing a pinched nerve, which was noted to explain the complaints of left hand numbness.

During the course of the matter, the Defendant filed a Motion for Summary Judgment arguing, in part, that the Plaintiff's failure to produce an expert medical opinion on causation defeated the Plaintiff's claim. 

The court cited to the law of Pennsylvania generally requiring expert medical opinion testimony to prove causation in personal injury cases. 

However, the court noted that expert opinion is not required if there is an obvious causal relationship between the alleged negligent act and the injury complained of. The court stated that a causal relationship is “obvious” if the injury is “either an ‘immediate and direct’ or the ‘natural and probable’ result of” the alleged negligence.

The court further noted that, in those cases in which expert testimony is not required, there are typically two common traits, that is, (1) the Plaintiff began to exhibit symptoms of the injury immediately after the accident or within a relatively short time thereafter, and (2) the alleged injury is the type that one would reasonably expect to result from the accident in question.

The court applied that law to this case and held that the record revealed facts under which expert medical testimony on causation was not required. As such, the Defendant’s Motion for Summary Judgment in this regard was denied as a jury could easily find that the Plaintiff’s injuries were the natural and probable consequence of the accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Plaintiff's Expert Allowed to Testify as to "Possibility" of Future Medical Care For Plaintiff

In the case of Hamm v. Perano, No. 20-CV-00598 (C.P. Lyc. Co. June 22, 2022 Lindhart, J.), the court denied Defendants’ Motion In Limine seeking to exclude the expert testimony of the Plaintiff’s medical doctor who was expected to testify as to the “possibility” that the Plaintiff would need future medical care.

This matter arose out of a premises liability incident. The Plaintiff was alleging performing yard work on property that she rented from the Defendants when she fell through an unsecured manhole cover and allegedly sustained injuries.

The Defendants asserted in their Motion in Limine that an expert opinion as to the “possibility” of medical care to take place in the future was not admissible.

However, the court agreed with the Plaintiff's argument that, under Pa. R.C.P. 223, the Plaintiff's expert’s testimony was relevant to the Plaintiff’s claim for future non-economic pain and suffering damages. 

The court more specifically noted that the relevant jury instructions incorporate Pa. R.C.P. 223.3 and instruct the jury to consider the type of medical treatment a Plaintiff has undergone and how long the treatment will be required in the future when considering whether to award future damages.

The court also emphasized that the Plaintiff clarified that she was not seeking to introduce the cost of the future treatment for direct reimbursement. Rather, she was seeking to have her expert testify as to her need for continued treatment, which the Plaintiff asserted was relevant to her pain and suffering claim.

While the court denied the Defendant’s Motion In Limine, the court noted that it would consider a request at trial for a limiting a jury instruction to clarify to the jury how they were permitted to take the evidence at issue into account in their deliberations.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 16, 2022).

Source of image:  Photo by Tara Winstead on www.pexels.com.

Expert Reports May Not Be Required of Plaintiffs In Cases Where Causation is Obvious

In some personal injury cases, the relationship of a plaintiff's injury to an alleged act may be so obvious that expert testimony on causation may not be necessary.  

Such was the case in the matter of Schweikert v. Eagle, No. 20-4310 (E.D. Pa. Feb. 9, 2022 Goldberg, J.), in which the court denied a Defendant's Motion for Summary Judgment in a motor vehicle accident versus pedestrian case.  The Defendant filed the Motion on the basis that the Plaintiff had not produced an expert report on causation.

According to the Opinion, the pedestrian Plaintiff was allegedly struck by the Defendant's vehicle while the Plaintiff was in a crosswalk at 30th and Chestnut Streets in Philadelphia.  There was no dispute that the Defendant's vehicle struck the Plaintiff.

The Plaintiff was immediately transported to the emergency room where she was treated for complaints of back pain and a fracture to her wrist.  The Plaintiff then went on to continue to treat with various medical providers for complaints of neck pain, back pain and wrist pain and residual limitations.

According to the Opinion, the Defendants filed a motion for summary judgment after the Plaintiff failed to produce an expert report within the Court's deadline.    

In this regard, the court ruled that, while a plaintiff is required in most cases to produce an expert report to prove causation, expert testimony on causation is not always required in personal injury actions.  Rather, under an exception to the general rule, where there is an obvious causal connection between the injury and the alleged negligent act, expert testimony may prove unnecessary.

Here, the Plaintiff alleged physical injuries as a result of being struck the Defendant’s vehicle. The court noted that there was evidence of an obvious causal relationship between the injury and the alleged negligent act.

More specifically, the Plaintiff’s alleged injuries were immediate, the Plaintiff was taken to the hospital complaining of pain, and the injuries sustained were the type that were the natural results of being hit by a vehicle.

The court otherwise noted that the issue of whether the obvious causal connection extended to the Plaintiff’s claim of spinal injuries was a disputed issue of fact to be left to the jury.

With regards to the Plaintiff’s failure to produce an expert report, the court noted that, although the expert report deadline had passed, the Plaintiff could rely upon the testimony of her treating physicians as lay witnesses. The court noted that the Plaintiff had not missed any deadline for describing the substance of such testimony by her treating physicians. The court additionally noted in this federal court case that the Defendants had the opportunity to depose the treating doctors prior to trial as well.

Anyone wishing to review a copy of this decision denying the Defendant's Motion for Summary Judgment may click this LINK.  The Court's companion Order can be read HERE.


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.

Source of image:  Photo by Cody Iannom on www.unsplash.com.

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.

Informed Consent Claim Dismissed Due to Lack of Expert Testimony

In the case of Bilinski v. Wills Eye Hospital, No. 2:16-CV-02728-GJP (E.D. Pa. Sept. 1, 2021 Pappert, J.), the court ruled a Plaintiff’s failure to produce expert medical testimony in support of a battery claim arising from lack of informed consent was fatal to the claims presented in that regard. 

However, the court otherwise noted that the Plaintiff was not required to produce expert medical testimony relative to an emotional distress claim as jurors could evaluate the emotional harm allegedly inflicted upon the Plaintiff due to the Plaintiff’s allegedly being subjected to a medical procedure against his will.

According to the Opinion, the Plaintiff reported to an eye surgeon for an evaluation to be fitted with cataract lenses. The Plaintiff alleged that the doctor evaluated both of the Plaintiff’s eyes but did not prescribe glasses.  Instead, the doctor allegedly grabbed the Plaintiff by the shirt telling him that he needed laser treatment immediately because his eyes were going to blow up.  The doctor then allegedly looked up at the ceiling and laughed. 

The Plaintiff alleged that the doctor physically grabbed the Plaintiff and led him to another room where a laser procedure was performed on the Plaintiff’s right eye. The Plaintiff alleged that the doctor, who was a surgery fellow, had not consulted with any attending physician and had completed the procedure without supervision and without the Plaintiff’s consent. All of these allegations were denied by the defense.

As noted, the court granted in part and denied in part the Defendants’ Motion to Dismiss. The court agreed with the Defendants that the Plaintiff’s failure to retain a medical expert was fatal to some of the claims presented.

The court also ruled that there was a genuine factual dispute as to whether or not the Plaintiff had consented to the laser procedure.

The court additionally noted that, while the Plaintiff was required to have produced expert medical testimony to prove that he sustained physical harm and suffering due to the alleged medical battery, the Plaintiff did not need an expert to support his claim for emotional distress as, in the court’s eyes, jurors could understand the emotional trauma of being subjected to a medical procedure without consent. As such, the Plaintiff’s emotional trauma claim was allowed to proceed.

The court otherwise ruled that the Plaintiff did need to produce an expert to support his lack of informed consent claim in order that the jury may be educated on what would constitute informed consent in a medical setting.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 23, 2021).

Source of image:  Photo by David Travis on Unsplash.com

Motion to Preclude Expert in Fire Loss Case Denied

In the case of Allstate Ins. Co. v. LG Elec. USA, Inc., No. 2:2021-CV-00187 (E.D. Pa. July 8, 2021 Baylson, J.), the Eastern Federal District Court of Pennsylvania denied a Defendant’s Motion to Exclude a Plaintiff’s expert in a fire loss subrogation matter.  In allowing the Plaintiff's expert's opinion to remain in the case, the court found that issues of material fact precluded the entry of summary judgment in favor of the Defendant.

The court ruled that, where a Plaintiff’s expert ruled out all other potential causes of a house fire and determined that there were two potential causes, both of which would have been the result of an alleged manufacturing defect, that expert was not required to show which of those two (2) potential causes occurred given that either one of those causes would result in the imposition of liability on the Defendant.

Anyone wishing to review this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 29, 2021).

Source of image:  Photo by Aldo Prakash on Unsplash.com.

Pennsylvania Superior Court Affirms Granting of New Trial in Zero Award for Pain and Suffering Where Medical Expenses Awarded

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).