Court Allows Plaintiff's Expert To Testify in Medical Malpractice Case

In the case of Pratt v. Shahid, No. CV-23-00720 (C.P. Lyc. Co. April 14, 2026 Carlucci, J.), the court denied the Defendants’ Motion In Limine seeking to preclude the Plaintiff from introducing the testimony of a doctor in a medical malpractice case.

In this case, the court denied the Defendants’ request for an exclusion of the Plaintiff’s medical expert’s testimony given that the Plaintiff’s expert’s opinion was found to be supported by medical literature.

The court also noted that the Defendants’ challenge went to the Plaintiff’s expert’s conclusions rather than the methodology utilized by the expert. 

The court found that the Plaintiff’s expert’s methodology was not novel, as it was similar to the methodology used by the Defendants’ expert. The court further noted that, even if the Plaintiff’s methodology was considered to be novel, it was still generally accepted in the scientific community as supported by articles from scientific journals submitted by the Plaintiff.

In the end, the court ruled that, while the Plaintiff’s expert’s conclusions differed from those advanced by the Defendants’ expert, that difference is not a proper basis for excluding the testimony of the Plaintiff’s expert.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 28, 2026). 

Trial Court Rules that Plaintiff's Medical Malpractice Experts are Competent to Testify on Causation

In the case of Kenny v. Lackawanna Health and Rehab Center, No. 2021-CV-1360 (C.P. Lacka. Co. May 28, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Motions in Limine filed by a Defendant in a medical malpractice case.

The Defendants filed a Motion In Limine seeking to bar the decedent’s treating orthopedic surgeon and the Plaintiff’s skilled nursing care and nursing home administration expert from expressing opinions regarding the cause of the Defendant’s hip fracture.

The Defendant more specifically asserted that the decedent’s treating orthopedic surgeon failed to state his medical causation opinion with the requisite degree of medical certainty in his pre-trial reports. 

After reviewing the record before him, the court ruled that a review of all of the reports issued by the orthopedic surgeon confirmed that the doctor had articulated his medical causation opinion with the requisite degree of medical certainty. The court noted that any objection regarding the particular terminology used by the expert in his reports went to the weight of the evidence rather than the admissibility of the expert testimony. As such, this Motion In Limine was denied.

With regards to the Plaintiff’s nursing expert and the defense argument that this expert should be precluded from testifying regarding causation on the grounds that the expert lacked the required education, training or experience in orthopedics, the court noted that the most recent law in Pennsylvania is that a registered nurse is competent to testify concerning the relevant nursing standard of care as well as on the issue of medical causation. Accordingly, the court overruled the Defendant’s argument that the nursing expert is incompetent to testify as to causation.

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

Superior Court Grants New Trial in a Medical Malpractice Case

In the case of Lewis v. Reading Hospital, No. 986 MDA 2024 (Pa. Super. Sept. 2, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court issued an Opinion which it reviewed the correct approach to increased risk claims in medical malpractice cases.

In this medical malpractice case, the court vacated the verdict in favor of the Plaintiff and remanded the case for a new trial.

In part, the Superior Court ruled in favor of the defense after finding that the trial court had failed to grant a mistrial after the Plaintiff’s attorney told the jury that the defense was unable to retain an expert on causation, which statement was not consistent in the evidence of the record.  In this case the Plaintiff had been successful in precluding one of the defense experts from testifying at trial.  The appellate court held that a party who succeeds in excluding evidence on legal grounds may not mislead a jury by telling the jury that such evidence never existed in the first place.

The Superior Court also agreed that the trial court erred in giving an instruction and a verdict form to the jury which equated the negligence element of factual cause with an “increased risk of harm” argument.

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


I send thanks to Attorney Michael D. Pipa of the Harrisburg, PA law firm of Saxton & Stump for bringing this case to my attention.

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.

Third Circuit Addresses Issues As To When Expert Testimony Is Required in Gun Discharge Case

In the case of Slatowski v. Sig Sauer, Inc., No. 24-1639 (3d Cir. Aug. 1, 2025 Krause, J., Bibas, J., and Montgomery-Reeves, J.) (Op. by Bibas, J.), the court affirmed the district court exclusion of the Plaintiff’s expert witnesses on the issue of causation but reversed the trial court’s entry of summary judgment in a case involving a federal immigration agent who was injured when he went to grab a gun from his holster and the gun fired a bullet into his hip and thigh.

The appellate court ruled that the trial court had properly excluded the Plaintiff’s expert testimony about what caused the gun to fire accidentally.

However, the court overruled the district court’s entry of summary judgment which was based on the district court’s finding that the Plaintiff could not proceed to a jury without expert testimony.

The appellate court noted that, given the other admissible evidence in the case, a jury would be able to determine what caused the gun to fire. As such, the entry of summary judgment was overruled.

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


Source: Article – “Lack of Causation Experts Does Not Knock Out Plaintiff’s Defective Gun Design Claims, 3rd Circuit Rules,” By Aleeza Furman The Legal Intelligencer (August 1, 2025).

Court Rules That Expert Testimony Not Required To Establish Defendant's Duty to Provide a Safe Workplace

In the case of Chirdon v. 3M Company, Inc., No. G.D. 22-16244 (C.P. Allegh. Co. March 24, 2025 Kline, J.), the trial court denied the Defendant’s post-trial motions in an alleged unsafe workplace trial involving allegations of asbestos exposure to a boilermaker.

According to the Opinion, the jury awarded $2.3 million dollars in compensatory damages and $1.5 million dollars in punitive damages against the Defendant employer.

In this Rule 1925 Opinion, by the trial court, the court addressed defenses raised with regard to statute of repose, the method in which the concept of outrageous conduct may be admitted into evidence at trial, issues regarding the bifurcation of the liability and punitive damages phases of the trial and challenges by the defense to the Plaintiff’s failure to utilize an expert to explain OSHA violations.

Notably the trial court rule that expert testimony was not required to establish the Defendant's duty to provide a safe workplace.  Rather, the court ruled that the duty to provide a safe workplace, as well as the applicable OSHA regulations were within the understanding of ordinary jurors.

Overall, the trial court ruled that the Defendant failed to meet the standard of review for a judgment notwithstanding the verdict or for a new trial.  As such, the Defendant's post-trial motions were denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken Behrend of the Behrend Law Group, LLC located in Pittsburgh, Pennsylvania for bringing this case to my attention.

Source of image:  Photo by Sylvia Brazzoduro from www.unsplash.com.

Plaintiff Waived Issues At Trial that Were Raised in an Undecided Pre-Trial Motion in Limine

In its decision marked Non-Precedential in the case of Wingate v. McGrath, No. 2879 EDA 2023 (Pa. Super. April 10, 2025 Panella, P.J.E., Stabile, J., and Nichols, J.) (Op. by Panella, P.J.E.), the Superior Court reviewed various post-trial issues and confirmed that a pre-trial Motion In Limine filed by the Plaintiff that was not decided prior to trial and which was not revisited until after trial was waived.

According to the Opinion, the Plaintiff filed a Motion In Limine to exclude the Defendant’s causation expert. However, the trial court did not resolve that motion prior to trial.

The record confirmed that, during trial, the Plaintiff did not re-raise the issues from the pre-trial motion in limine until after testimony was heard and the jury had retired to deliberate.

When the issue was raised again at that point, the trial court held that the issues regarding the Defendant’s expert had been waived. However, after a defense verdict was handed down by the jury, the trial court granted the Plaintiff a new trial.

On appeal, the Superior Court rejected the Plaintiff’s argument that the Defendant had failed to properly preserve his argument that the Plaintiff had waived the issues regarding the defense expert.

The Pennsylvania Superior Court ruled that issues raised in an undecided pre-trial motion in limine must be re-raised at trial in order to be preserved. Here, the Plaintiff did not raise the issues again until after the relevant testimony was already in evidence. As such, the Superior Court held that the admissibility of the Defendant’s expert issue had been waived by the Plaintiff.

Accordingly, the Superior Court ruled that the trial court had erred by granting the Plaintiff a new trial on this issue after a defense verdict had been entered.

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.

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 Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 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.

Court Grants Summary Judgment on Recklessness and Punitive Damages Claims in a Trucking Accident Case

In an Opinion that is tersely worded at times in the case of Medina v. One Stop Center, Inc., No. 2:22-CV-01031-CB (Jan. 2, 2025 Bissoon, J.), the court granted a Defendant’s Motion for Summary Judgment on a claim for punitive damages in a trucking accident case. In so ruling, the court also reject the Plaintiff’s liability expert’s opinion.

As to the Plaintiff’s expert, the court found that the expert’s opinion did not meet the standards required by Federal Rules of Evidence 702. The court additionally faulted the expert for veering into areas reserved for the jury, that is, by offering opinions based on his assessment of the credibility of witnesses and parties.

Overall, reviewing then facts of the case, which involved an accident when the drivers encountered unexpected black ice on the roadway, did not support a finding of reckless indifference on the part of the Defendant driver. Accordingly, the court granted the Motion for Summary Judgment filed by one of the Defendant.

Relative to a separate decision in this Opinion on a Borrowed Servant Doctrine issue raised by a different Defendant, the Court denied that Defendant's Motion for Summary Judgment on that issue   

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

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh, PA law firm of Zimmer Kunz, PLLC, 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.

 

Plaintiff's Med Mal Experts Permitted to Testify But Scope of Testimony Somewhat Curtailed

In the case of Rotella v. Community Medical Center, No. 2022-CV-3943 (C.P. Lacka. Co. Sept. 5, 2024 Nealon, J.), the court addressed motions seeking to preclude defense expert witnesses in a medical malpractice case.

According to the Opinion, the Plaintiffs filed a Motion In Limine seeking to preclude the testimony of various expert witnesses for the defense on several grounds.

First, the Plaintiff asserted that the experts do not satisfy the competency requirements as set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa. C.S.A. §1303.512.

The Plaintiffs additionally asserted that the testimony of the multiple defense experts concerning causation was needlessly cumulative.

Third, the Plaintiff asserted that two (2) of the experts discussed irrelevant and unfairly prejudicial information in their Pre-Trial Reports regarding unrelated medical conditions.

After his review of the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that, based upon the expert reports and the CVs submitted, the defense experts at issue were found to possess the necessary qualifications to address the medical causation issues.

Judge Nealon additionally found that the opinions of the various defense experts were from different medical specialties and distinct clinical perspectives and, as such, constituted corroborative, rather than needlessly cumulative evidence.

As to the third issue, Judge Nealon granted the Plaintiff’s Motion In Limine and found that, since the infectious disease care provided to the male Plaintiff was not a subject of the Plaintiffs’ negligence claims, the defense infectious disease expert would be precluded from offering opinions that the infectious disease treatment in the matter complied with the standard of care.

Judge Nealon additionally ruled that, given that the COVID-19 pandemic did not affect the care involved in this case or otherwise impact the applicable standard of care, the defense corporate liability expert would be barred from mentioning “hospitals across the country were be inundated with patients who were victims of the COVID pandemic” at the time of the male Plaintiff’s hospitalization.

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

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.

Summary Judgment Granted in Case Where Plaintiff Did Not Know What Caused Her to Fall

What caused you to fall?

In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa. Super. Aug. 2, 2024 Olson, J., Stabile, J., and McLaughlin, J.) (Op. by Olson, J.), the court affirmed the entry of summary judgment in a premises liability fall down case.

According to the Opinion, the Plaintiff denied knowing what caused her to fall at a brew pub and offered no other factual evidence in support of her claims presented.

According to the Opinion, the Plaintiff confirmed that there was no food or liquid on the floor that could have caused her to fall.  Although she initially suggested that her fall may have been caused by uneven floor tiles, or an uplifted section of a floor mat, or a wave in a floor mat, she confirmed that she was not certain.  

The Plaintiff then testified that uneven floor tiles did not cause her to fall and that perhaps she instead fell due to the heel of her shoe catching a rubber edge of a floor mat.  The Plaintiff confirme that she did not know how her heel might have caught the rubber edge of a mat or whether or not the edge of that rubber mat was sticking up at the time she allegedly encountered it.

The court additionally noted that the trial court had properly precluded the Plaintiff’s liability expert because that expert’s opinion expressed no specialized knowledge, failed to explain the expert’s conclusions with specific references to cited standards, and where the expert failed to offer opinions specifically tailored to the facts established by the record. 

With regards to spoliation issues raised by the Plaintiff in this matter, the court indicated that the record revealed that no notice was given to the Defendant about the need for the videos until after the surveillance videotapes were routinely overwritten.

The court emphasized that the duty to preserve evidence is not boundless.

It was also emphasized that a deleted video causes little prejudice to a litigant who has no proof of liability such as was the case in this matter. The court noted that absent any affirmative evidence of liability, spoliation allegations in and of themselves cannot take the place of carrying the Plaintiff’s burden of proof on the liability issues presented.

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

Pennsylvania Superior Court Remands Case After Finding that Testimonies of Defense Experts Were Improperly Limited By Trial Court

In the case of Bell v. O’Neill, No. 2393 EDA 2022 (Pa. Super. Nov. 16, 2023 Bowes, J., Stabile, J., Pellegrini, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court vacated a jury’s $1 million dollar verdict in favor of a Plaintiff in a motor vehicle accident matter after concluding that the defense expert witnesses were improperly precluded from testifying during the trial.

More specifically, the Superior court noted that the trial court should have allowed two (2) of the defense experts, an orthopedic surgeon, and a biomedical engineer, to testify on causation issues.

The court noted that, just as the Plaintiff’s medical expert was permitted offer opinions that the motor vehicle accident caused the Plaintiff’s alleged injuries despite minor damages to the vehicles, the defense expert should have been allowed to rebut the argument that the alleged small force involved in the accident was sufficient to have caused the extent of the injuries the Plaintiff claimed to have suffered.

The Superior Court remanded the case for a new trial on causation and damages.

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


Source: Article – “Court Nixes $1M Rear-End Collision Verdict Over Improperly Excluded Experts,” By Riley Brennan of the Pennsylvania Law Weekly (Nov. 28, 2023).

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).

Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired

In the case of Kersey v. Pisano, No. 798 EDA 2022 (Pa. Super. March 7, 2023 Sullivan, J., Panella, P.J., Bender, P.J.E.) (Op. by Sullivan, J.)[Non-Precedential], the court affirmed in part and reversed in part relative to post-trial motions filed in a medical malpractice case after a verdict was entered in favor of a Plaintiff.

In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.

The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.

The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.

The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.

In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.

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I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.