Trial Court Addresses Use of Hearsay Evidence During a Medical Malpractice Trial

In the case of Koesterer v. Thomas Jeffersons Univ. Hosp., Feb. Term 2021, No. 01051 (C.P. Phila. Co. Feb. 13, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in a medical malpractice case and held, in part, that a judgment in favor of the Plaintiff should be affirmed given that the medical malpractice Defendant did not suffer any prejudice to the point of warranting a new trial where the Plaintiff’s attorney was permitted to briefly cross-examine a Defendant physician with the expert opinions of the Plaintiff’s non-testifying expert in violation of the hearsay rule.

According to the Opinion, the Plaintiff sued the medical Defendants for professional liability after the Plaintiff’s mother died allegedly as a result of a pulmonary embolism after hip surgery.

At trial, the Plaintiff’s attorney was permitted, over the Defendants’ hearsay objection, to cross-examine a Defendant doctor and the Defendant doctor’s expert with the expert opinions issued by one of the Plaintiff’s non-testifying expert.

In this regard, the trial court pointed out that, immediately before the questioning at issue, the Defendant physician testified that there was a disagreement in the field of medicine regarding the issues raised in the non-testifying expert’s opinion.

Accordingly, the court stated that, while the questioning from the Plaintiff’s attorney briefly drew in an outside hearsay opinion from a non-testifying expert, the trial court found that it was impossible to conclude that the momentary reference would have had an significant impact on the jury’s decision. 

The court also noted that this was essentially the only reference to the opinions of the Plaintiff’s non-testifying expert at trial. Accordingly, in this Rule 1925 Opinion, the trial court asserted that it did not err or abuse its discretion in denying the medical Defendants’ request for a new trial based upon the alleged prejudice in this regard.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Information From GPS System Found Not to be Hearsay (Criminal Court Decision)

 

In the case of Commonwealth v. Wallace, No. 93 MAP 2021 (Pa. Feb. 22, 2023)(Op. by Todd, C.J.)(Wecht, J. Concurring), the Pennsylvania Supreme Court held that a global positioning system (GPS data) is not inadmissible hearsay under Pa. R.E. 803 (setting forth hearsay exceptions).

Such information was found not to be hearsay because that information does not constitute a statement made by a declarant as outlined in Pa. R.E. 801 and/or is not an assertion (or the nonverbal conduct) by a person.

As this decision may prove useful in a civil litigation matter, it is highlighted here on Tort Talk.    

Here is a LINK to the Court's Majority Opinion.  The Concurring Opinion by Justice Wecht can be viewed HERE,

Source of image:  Photo by Tamas Tuzes-Katai on www.unsplash.com.

Court Addresses Hearsay Within Hearsay Issues

Is that hearsay?

In response to a post-trial motion filed in the case of Huertas v. El Bochinche Restaurante, Oct. Term, No. 02851 (C.P. Phila. Co. 2022 Hill, J.), the court addressed hearsay issues that arose during the course of a premises liability trial.

According to the Opinion, the Plaintiff attended a party at a restaurant where she was allegedly attacked in a bathroom.

The Plaintiff was subsequently seen at an emergency room for a facial fracture and other injuries. The records from that visit indicate that the Plaintiff informed the treating physician that she was “punched in the face while walking down a street.”

The Plaintiff later visited a different hospital, stating there that she was injured in the restaurant.

The Plaintiff eventually brought a lawsuit against the restaurant for negligence.

As the case proceeded to trial, the Plaintiff had filed a Motion In Limine requesting the trial court to exclude any possible statements the Defendant would make regarding other claims the Plaintiff had filed.

As to the statements from the hospital records, the court held that the statements were properly admitted under several exceptions to the hearsay rule. 

First, under Pa.R.E. 803.4, hearsay statements “made for diagnoses or treatment" are allowed. The court found that the Plaintiff’s statements at the hospital clearly fell within this exception.

Also, the court referenced precedent holding that statements made by an opposing party are allowed, which was the case with the statements at issue in this matter.  More specifically, the Defendant was seeking to enter statements by the Plaintiff, who was the party opponent.

The court additionally held that the statement at issue was admissible under the business records exception in Rule 803.6. In this regard, the court found that the statement was made and recorded during a regularly conducted activity by the hospital, was recorded contemporaneously close to the time of the alleged incident, and was maintained during the normal course of business.

On a separate but related issue, the Plaintiff argued that the court erred at trial by denying her request to admit the statement by the Plaintiff at the second hospital visit that she had been injured in the restaurant.  The Plaintiff felt that she should have been allowed to introduce that statement in an effort to rehabilitate her testimony and credibility. However, the court clarified that the Defendant had not impeached the Plaintiff, but rather had offered their evidence as substantive evidence excluded from the rules of hearsay.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 6, 2022).

A Nice Primer on the Hearsay Rule

Here's a decision that gives a nice reminder of how the rules of hearsay work in a trial setting.

In the case of Nitkin v. Main Line Health, No. 2:20-CV-04825-KSM (E.D. Pa. Oct. 26, 2021), the Federal District Court in the Eastern District of Pennsylvania ruled that notes taken by the medical director of the Plaintiff’s former employer were non-hearsay and, as such, were deemed to be admissible as they fell within the party-opponent exclusion found under F. R.E. 801(d)(2)(D).

The Court noted that F.R.E. 801(d)(2)(D) allows for the admission of statements made by an employer’s agent or employee on matters within the scope of that relationship and while that relationship existed.

With regards to some other out-of-court statements, the Court rejected the argument that such statements were not being offered for the truth of the matter asserted within the statements and, therefore, were admissible.  In reviewing the potential evidence within the context of the case, the Court ruled that it appeared that the statements would be offered for the truth of the matter and were, therefore, inadmissible as hearsay.

Based upon this ruling, the court denied in part, and granted in part, the Defendant’s Motion In Limine.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 18, 2021).

Hearsay Exceptions Addressed in Context of Med Mal Case

In the case of Delguercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Aug. 19, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a certain Defendants’ Motion In Limine to preclude hearsay testimony in a medical malpractice action.

According to the Opinion, the Defendant generally filed a Motion In Limine to preclude the Plaintiffs from introducing hearsay testimony at trial unless such testimony fell within one of the enumerated exceptions to the hearsay rule. The Plaintiff filed a response asserting that the testimony at issue was admissible under the hearsay exceptions set forth under Pa. R.E. 803(3) and (4).

This case involved a malpractice action under which the Plaintiff asserted that the Plaintiff allegedly received negligent treatment in the emergency room relative to a deep vein thrombosis condition and/or a stroke condition.

The disputed hearsay statements involve statements made by the Plaintiff’s husband to the attending physician as well as the statements contained in the Plaintiff’s husband’s deposition testimony regarding the Plaintiff’s symptoms and complaints during the course of her treatment. Some of the statements by the husband involved statements that the Plaintiff had made to her husband as to why she reported to the emergency room for the subject treatment.

After reviewing the law of hearsay and the relevant exceptions, Judge Nealon found that the statements by the Plaintiff’s husband were admissible pursuant to the hearsay exception under Pa. R.E. 803(4) which is entitled “Statement Made for Medical Diagnosis or Treatment.” 

The court noted that it was the longstanding law of Pennsylvania that the medical treatment exception to the hearsay rule provides that testimony repeating out-of-courts statements which were made for the purpose of receiving medical treatment are admissible as substantive evidence.  In order for such a statement to qualify for admission under the “medical treatment exception,” it must be made “for the purpose of receiving medical treatment” and be "necessary and proper for a diagnosis and treatment.” See Op. at 6.

The court found that the statements at issue made by the Plaintiff’s husband to the Plaintiff’s treating doctor were clearly made for and relevant to the Plaintiff’s diagnosis and treatment. The court noted that it was inconsequential that the pertinent medical history was provided by the husband rather than the Plaintiff herself, since statements need not be made by the incapacitated patient in order to be admissible pursuant to the medical treatment exception. The court also noted that there is no requirement of corroboration of the information provided before the offered statement is admissible. Nor is the admissibility of the evidence disqualified where the person offering the evidence is an interested party.

The court also found that the statements made by the Plaintiff’s husband regarding the Plaintiff’s complaints of pain, tingling, and other symptoms was admissible as a statement of her physical condition and pain at the time in question. The court noted that Pennsylvania Rule of Evidence No. 803(3) establishes a hearsay exception for any “statement of the declarant’s then-existing….emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)….”  See Op. at 7. 

The court noted that, in order to be admissible, such statements must overtly describe or relate to a mental, emotional, or physical condition that then exist and must be made contemporaneously with the mental or physical condition, regardless of when, why, or how the condition was caused or produced. Id. at 7-8.

After applying this law to the statements in question, the court found that additional statements were admissible as well.

As noted above, the Defendant’s pre-trial Motion In Limine in this medical malpractice action was denied.

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

Source of image:  Photo by Tingley Law Firm on Unsplash.com.

Post-Trial Motions Denied in Lackawanna County Fatal Boating Accident Case

 
In the case of Loomis v. Bomba, No. 18-CV-930 (C.P. Lacka. Co. March 12, 2021 Nealon, J.), the court addressed a number of post-trial motions filed by a Plaintiff after a defense verdict was entered in a boating fatality litigation.

In the end, after review of the record before it, the court noted that, as the ultimate triers of fact and the judges of credibility, the jury was free to accept or reject the witnesses presented.  The jury’s verdict was found to be not so contrary to the evidence as to shock one’s sense of justice.

With regards to the Plaintiff’s objection that the investigating State Trooper allegedly violated the hearsay rule by referring to a statement that he obtained from a non-testifying witness, the court found that the Trooper’s reference to this statement was permitted to explain his course of conduct in the investigation, rather than any admission of hearsay statement for the truth of the matter asserted. The judge additionally emphasized that he had provided the jury with a cautionary instruction advising the jury that the statement could only be considered for the limited purpose for which it was admitted.

Judge Nealon also rejected any contention by the Plaintiff that his jury instructions were deficient in the court’s failure to charge the jury based upon certain information from a handbook published by the Pennsylvania Fish and Boat Commission. The court noted that the jury was provided by appropriate instructions regarding a boat operator’s duties of care under the Fish and Boat Code as well as under the regulations promulgated by the Fish and Boat Commission. Judge Nealon otherwise noted that the jury instruction charged, as a whole, was not inadequate, unclear, misleading, or confusion. He also noted that the instructions did not omit any basic or fundamental principals of law.

Anyone wishing to review this Opinion may click this LINK.

Pennsylvania Superior Court Offers Lessons on Hearsay Exception (Statements Made for Medical Diagnosis and Treatment)

In the case of Adams v. Rising Son Med. Ctr., No. 2020 Pa. Super. 298 (Pa. Super. Dec. 29, 2020) (Op. by Bowes, J.), the court addressed the applicability of the medical treatment hearsay exception found under Pa. R.E. 803(4).

This matter arose out of a medical malpractice action. At issue was the Plaintiff’s argument that the trial court had erred in precluding the Plaintiff from testifying as to what the Plaintiff’s decedent told medical providers in the emergency room regarding her family history of deep vein thrombosis.  This case involved an allegation that the medical providers failed to diagnose the Plaintiff’s own deep vein thrombosis which allegedly caused or increased the decedent’s risk of death due to a pulmonary embolism.

While the Plaintiff conceded that such testimony was hearsay, they argued that the testimony by the Plaintiff regarding what her deceased family member had told the medical providers was admissible under the hearsay exception for statements made for purposes of diagnosis and treatment.

The Defendants argued at the trial court level that a statement made for purposes of medical treatment qualifies for the hearsay exception under Pa. R.E. 803(4) only if it is proffered by a healthcare provider.

The Superior Court disagreed. The Superior Court noted that there were only two (2) requirements for a hearsay statement to come within the exception set forth at Pa. R.E. 803(4). First, the declarant must take the statement for purposes of receiving medical treatment. Second, the statement must be necessary and proper for the diagnosis and treatment.

The Pennsylvania Superior Court found no legal support for the defense argument that only a healthcare provider can testify as to statements made for purposes of medical treatment or any requirement for corroboration before the proffered statement is admissible.

The Superior Court additionally reasoned that this exception to the hearsay rule was created because statements made for the purpose of receiving medical treatment are typically stated in circumstances where the reliability of the declarant’s out-of-court statement is inherently trustworthy and where there is little motive to fabricate any information.

In the end, the Superior Court found that the trial court erred in excluding such testimony and that the exclusion of this testimony was highly prejudicial to the Plaintiff.  As such, the Pennsylvania Superior Court ruled that the Plaintiff was granted a new trial.

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


Source: “Digest of Recent Opinions.” Pennsylvania Weekly Law (Jan. 12, 2021).

Propriety of Utilizing a Learned Treatise At Trial Reviewed By Pennsylvania Superior Court

In the case of Charlton v. Troy, No. 2020 Pa. Super 170 (Pa. Super. July 16, 2020 Bowes, J., Olson, J., and Ford Elliott, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court addressed the propriety of using a learned treatise to cross-examine a witness at a medical malpractice trial.

In the end, the Superior Court found that the trial court erred in allowing a Plaintiffs’ attorney to cross-examine the Defendant physician, who testified as a fact witness at trial, about the contents of a medical textbook that the witness did not recognize as authoritative. The court ruled that this error caused extreme prejudice to the Defendants. As such, the substantial jury verdict was vacated and the case was remanded for a new trial.

The Superior Court found that there was no foundation laid that would establish that the textbook was a learned treatise for the limited purpose of impeaching the Defendant. The court noted that the Pennsylvania Rules of Evidence did not recognize a hearsay exception for a learned treatise, i.e., any textbook or published work or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community. Rather, the court noted that the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay as extra-judicial declarations offer to prove the truth of the matter asserted within the treatise.

However, such materials may be utilized to impeach an expert with statements contained in such a text or publication if those statements are deemed authoritative or reliable by that witness or other experts in the relevant field.

The court noted that the Defendant doctor could have been questioned about the contents of the textbook if he was an expert. However, as he was only testifying as a fact witness, the Defendant doctor could only be cross-examined with a publication that he agreed was authoritative or reliable. No such foundation was laid in this regard in this case as the witness did not recognize the work as authoritative.

The appellate court found that this error was exacerbated at trial by the fact that the Plaintiff was allowed to argue the substance of the inadmissible excerpts in the closing argument.

In colorful language, the Superior Court noted that, because the error at trial in the admission of the evidence was "of such a consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial."  See Op. at p. 37 [citation omitted].

In the end, the appellate court vacated a $40+ million dollar verdict and remanded the case for further proceedings.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 28, 2020).

Several Notable Civil Litigation Decisions Pertaining to Expert Testimony

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

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

Reduction of future medical costs to present value prohibited

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

Judge Terrence R. Nealon
Lackawanna County

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

Expert testimony on need for future medical care allowed

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

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

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

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

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

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

A Primer on the Rules Pertaining to Use of Depositions At Trial

In the case of Mueller v. 20th Century Glove Corp., No. 11901-2016 (C.P. Erie. Co. 2018 Domitrovich, J.), the court allowed, over the objections of various Defendants, a Plaintiff's attorney to use a deposition of a Plaintiff at trial where the Plaintiff had died during the litigation.  In so ruling the court noted that the defense counsel had an opportunity during the deposition to cross-examine the Plaintiff.

The case provides a nice overview of hearsay rules and Pa.R.C.P. 4020 pertaining to the use of depositions at trial.

Anyone wishing to review this decision, may click this LINK.

I send thanks to Attorney Craig Murphey of the Erie, PA law firm of Purchase, George & Murphey for providing me with a copy of this decision.

Another Appellate Criminal Court Decision With Civil Litigation Implications: A Question Can Be a Hearsay 'Statement'

The Pennsylvania Superior Court has handed down a criminal court decision which could have implications in the trial of a civil litigation matter.  

In a case of first impression entitled Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.   

According to the Opinion, the Defendant sought to have statements made by a victim to his grandmother shortly before the victim was shot and killed ruled as inadmissible hearsay.  Some of the statements at issue were in the form of a question by the victim. 

In its Opinion, the Pennsylvania Superior Court noted that, while the issue raised by the Defendant had been addressed by many other courts, no consensus had been reached.  Also, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had not yet addressed the issue.

Some of the other courts that have addressed the issue have taken the position that a true question or inquiry is, by the nature of itself, incapable of being proved either true or false and, therefore, cannot be offered ‘to prove the truth of the matter asserted’ such that it does not constitute a “hearsay statement” by definition.  

The Pennsylvania Superior Court went in a different direction and instead elected to follow those jurisdictions that have held that a question can be considered to be hearsay if it contains an implied assertion offered for the truth of the matter.   The court noted that “[t]his approached ensures that the substance of an utterance, not its grammatical form, controls whether the utterance is admissible."

Accordingly, the court ruled that, when a question includes an implied assertion, the question constitutes a statement of purposes of Pennsylvania Rule of Evidence  801(a).   If such a question/statement is offered for the truth of the matter asserted, it is hearsay and generally inadmissible unless an exception to the hearsay rule is implicated.

Obviously, this Pennsylvania appellate court ruling on the Hearsay Rule under the Pennsylvania Rules of Evidence could have an impact in civil litigation matters and, as such, is reported here on Tort Talk.

Anyone wishing to review this Commonwealth v. Parker decision, may click this LINK.