Court Denies Summary Judgment Motion Based on Mudano Rule (Pertaining to Conflicting Expert Opinions Offered by Plaintiff)

In the case of Kafaoglu v. Thomas, No. 14-CV-1842 (C.P. Lacka. Co. Dec. 21, 2018 Nealon, J.), the court applied the Mudano Rule in a case where the Defendant filed a Motion for Partial Summary Judgment asserting that conflicting opinions by medical experts for the Plaintiff prevented the Plaintiff from proceeding to the jury on certain portions of his claims.  

This matter arose out of a motor vehicle accident in which the Plaintiff alleged, in part, a cervical spine injury requiring a surgical repair.  

Evidence gathered during the course of discovery confirmed that the Plaintiff had a prior cervical spine fusion surgery.   The evidence also revealed that the Plaintiff did not treat over the first eleven (11) days following the subject motor vehicle accident.  As such, the defense contended that the alleged causation of the Plaintiff's post-accident cervical spine complaints were in question.

During the course of his treatment after the subject accident, the Plaintiff eventually underwent a cervical spine surgery for an alleged disc injury allegedly arising out of the motor vehicle accident.

The Plaintiff initially produced expert reports from the Plaintiff’s treating neurosurgeon who performed the surgery.  That neurosurgeoin opined that he was “unable to say with 100% certainty that this car accident led to [the Plaintiff’s] C3-4 disc herniation.”   The neurosurgeon advised that he did not have any pre-accident imaging studies to compare with the post-accident studies.   

In his reports, the neurosurgeon also stated that his findings that he personally observed during the course of his surgery on the Plaintiff’s cervical spine suggested that degenerative disc disease was at issue, rather than any acute process.  

During the course of discovery, the Plaintiff also secured the Plaintiff’s IME report from a physiatrist in which that physiatrist offered his conclusions that the subject motor vehicle accident aggravated the Plaintiff’s pre-existing cervical stenosis and allegedly necessitated the post-accident cervical spine surgery.  

The defense filed a Motion for Partial Summary Judgement with respect to the Plaintiff’s claims related to his cervical disc injury and cited the Mudano rule for the proposition that the opinions of the Plaintiff’s medical experts were irreconcilably inconsistent and, therefore, “legally incompetent."

The defense requested a summary judgment on the particular issue of the Plaintiff's alleged disc injury and surgery not being causally related to the accident by competent expert medical evidence.  The argument of the defense was that, if the Plaintiff's own experts could not agree on a conclusion of whether the disc injury and surgery were caused by the accident, how could a jury of lay people come to such a conclusion.

After a review of the medical evidence presented, the court concluded that, given that the Plaintiff only currently intended to present the expert opinion of his treating physiatrist, the Mudano rule was not implicated given that there would not be a presentation of two (2) contradictory expert reports on the part of the Plaintiff.   

The court additionally held that, even if the opinions of both experts was put into evidence (which would likely be done by the defense), reviewing the experts’ opinions did not reveal them to constitute fatal and absolute contradictions with one another on a fundamental issue.  Rather, to the extent that the opinions were found to conflict with one another, the court felt that this issue should be left for the jury to decide.  

As such, the court denied the Motion for Partial Summary Judgment filed by the defense.

Anyone wishing to review this decision may click this LINK.

ARTICLE: The 'Mudano' Rule: Conflicting Expert Opinions Often Prove Fatal

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.

Judge Terrence Nealon of Lackawanna County Addresses Post-Trial Motions in Sedor v. Community Medical Center

On February 22, 2011, Judge Terrence Nealon of the Lackawanna County Court of Common Pleas issued a 69 page opinion addressing the post-trial motions filed in the case of Sedor v. Community Medical Center, et al., No. 2005 CV 2143 (Lacka. Co., Feb. 23, 2011, Nealon, J.).

Judge Nealon aptly summarized his holdings in the first few pages of the Opinion, as follows:

"In the wake of a $3,250,000.00 personal injury award, the solely liable defendant hospital has filed a motion for post-trial relief under Pa. R.C.P. 227.1 and the prevailing plaintiffs have presented a motion for delay damages and post-judgment interest. The hospital requests judgment in its favor and argues that the opinions expressed by the plaintiffs’ experts on causation were so irreconcilably inconsistent that they should be declared legally incompetent to support the jury’s verdict. The hospital alternatively seeks a new trial on the grounds that the verdict was against the weight of the evidence, prejudicial evidentiary errors were committed at trial, and improper jury instructions and special interrogatories were submitted to the jury.

Although two of the plaintiffs’ experts differed as to whether an infection in the male plaintiff’s foot was already present on the date that he was struck with a hospital bed, the hospital is not entitled to JNOV based upon the Mudano rule since all three of the plaintiffs’ causation experts agreed that the male plaintiff’s necrotizing fasciitis and resulting amputation were caused by the bed trauma. Nor was the verdict against the weight of the evidence inasmuch as (a) there was ample evidence to support the conclusion that either CMC or its employee was exclusively liable, and (b) the jury’s compromise verdict on damages reflects that it did consider the male plaintiff’s apparent failure to reasonably mitigate his damages.

As for the evidentiary rulings, it was not an abuse of discretion to allow: (1) plaintiffs’ corporate liability expert to address the hospital’s negligent maintenance of beds since the hospital was not prejudiced by any discrepancy between that expert’s testimony and the plaintiffs’ pleadings; (2) Dr. Sedor to make limited reference to his own medical knowledge when explaining his mitigation conduct; (3) the presentation of a hypothetical question to a defense expert that was based upon an assumption which was supported by the evidence; and (4) the treating physiatrist to testify concerning causation in accordance with his pre-trial reports. The hospital has also failed to establish reversible error in excluding evidence of the male plaintiff’s prior suspension of privileges at another hospital and the ensuing Luzerne County litigation regarding that suspension. Any such evidence was properly precluded pursuant to Pa. R.E. 403 since the defense experts did not opine that the earlier suspension adversely affected the male plaintiff’s employability or future earning capacity and the introduction of that evidence would have injected collateral issues, unnecessarily delayed the trial and potentially caused the jury to decide this personal injury action on an improper basis.

In light of the conflicting evidence submitted by the parties with respect to the cause of the male plaintiff’s harm, the jury instructions on concurring causes and pre-existing conditions were appropriate. Furthermore, the separate damage interrogatories submitted to the jury were authorized by appellate precedent. However, the hospital provided no authority or plausible reason for three special interrogatories on mitigation of damages and it was not an abuse of discretion to deny that request. Therefore, the hospital’s motion for a new trial will be denied. In addition, the plaintiffs’ motion for delay damages and post-judgment interest will be granted to the extent that the plaintiffs will be awarded pre-judgment interest in the amount of $886,953.00 and post-judgment interest of $680.05/day from October 8, 2010 until the date of payment by the hospital."



Anyone desiring a copy of Judge Nealon's Opinion may contact me at dancummins@comcast.net.