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.

Corrected Link for the Merrifield v. Bonacuse (Fair Scope of Expert Testimony) Case

The link for yesterday's Tort Talk post on the case of Merrifield v. Bonacuse, No. 16-CV-3420 (C.P. Lacka. Co. Dec. 8, 2021 Nealon, J.) did not work.  Sorry about that.

In that case, the court addressed the scope of expert testimony for trial as being beyond the fair scope of the pre-trial reports offered by the expert as compared to the fair scope of a treating doctor's trial testimony based upon office notes.

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

Fair Scope of the Expert Report Rule Does Not Apply to Treating Doctors

In the case of Merrifield v. Bonacuse, No. 16-CV-3420 (C.P. Lacka. Co. Dec. 8, 2021 Nealon, J.), the court addressed the scope of expert testimony for trial as being beyond the fair scope of the pre-trial reports offered by the expert.

After referring to Pa. R.C.P. 4003.5(c), which limits the direct testimony of any expert to the “fair scope” of the pre-trial reports authored by the experts, the court limited the defense IME doctor from referencing the Plaintiff’s medical billings or Medicare’s lien given that the expert did not identify in his report that he had reviewed any such records and where that expert did not make any reference to the reasonableness of the medical providers’ charges for the amounts actually paid by Medicare.

The court found that, in light of the discrepancy between the defense expert’s pre-trial reports and his proffered testimony, the Plaintiff is found to be unable to prepare a meaningful cross-examination to challenge any opinions with regards to the reasonableness of the medical expenses or Medicare’s Conditional Payments. As such, the Plaintiff’s Motion In Limine was granted.

Relative to the defense objections to the Plaintiff’s treating doctor’s testimony as being beyond the fair scope of any reports, Judge Nealon found that the “fair scope” of the report limitation set forth in Rule 4003.5(c) only applies to expert witnesses whose opinions were acquired or developed in anticipation of litigation or for trial.

Given that the Plaintiff’s expert formulated his opinions in his capacity of a treating doctor, rather than as an expert hired by a party in anticipation of litigation or trial, the court found that that expert was not obligated to author a pre-trial report and that his trial testimony was not subject to the “fair scope” rule. As such, the Defendant’s Motion In Limine seeking to strike the Plaintiff’s expert’s direct testimony was denied.

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

Photo from 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.

Pennsylvania Superior Court Reviews When Treating Physician May Testify As to Causation (Non-Precedential)

In the Non-Precedential decision of Krolikowski v. Ethicon Womans’ Health & Urology, No. 2025 MDA 2019 (Pa. Super. Aug. 11, 2020 McCaffery, J., Bowes, J., Ford Elliot, P.J.E.) (Op. by McCaffery, J.) (Non-Precedential), the Pennsylvania Superior Court affirmed the denial of the Plaintiff’s Pos-Trial Motions following a defense verdict in a case involving products liability claims relative to a pelvic mesh.

Notably, the Pennsylvania Superior Court confirmed that a treating physician may testify as to causation issues without being designated as an expert when those opinions were formed as part of the treater’s medical treatment. 

The court found that the opinions of the treating physician were based entirely upon the treater’s contemporaneous medical notes and were not created in anticipation of litigation. 

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

Interesting Superior Court Ruling on Permissible Use of Powerpoint During Closing Argument

In the case of W.C. v. Janssen Pharmaceuticals, Inc., 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court.   This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.  

This decision is otherwise notable for the Superior Court’s decision that the trial court should have required clarification as to which part of a witness’s testimony was lay opinion testimony and which part was expert opinion testimony where that single witness gave both types of opinion testimony.   The Superior Court found that, since no clarification was given at the trial court level, this was reversible error. 

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 and the writer of the Drug and Device Law Blog for bringing this case to my attention.  

Pennsylvania Superior Court Addresses Several Notable Trial Evidentiary Issues

In the case of Crespo v. Hughes, 2017 Pa. Super. 230 (Pa. Super. July 18, 2017 Ransom, Penella, Shogan, J.J.) (Op. by Ransom, J.), the Pennsylvania Superior Court addressed several civil litigation trial issues.

In this decision, the court confirmed that liability for loss of future income is established by evidence of shortened economic horizons, not actual income.  

Relative to the loss of future earnings claim, the appellate court also affirmed the trial court's exclusion of the plaintiff's alleged marijuana use as well as his alleged failure to pay child support.  The court agreed that any probative value of this evidence with respect to the wage loss claim was outweighed by the danger of unfair prejudice.

On a medical evidence issue, the Superior Court noted that a treating physician could give factual evidence of causation even without filing an expert report where that information was included in the doctor’s treatment notes.  

On another evidentiary issue, the appellate court confirmed that a conviction for receiving stolen property is crimen falsi crime that was admissible against the Plaintiff under Pa. R.E. 609).  

 Anyone wishing to review a copy of this decision may HERE.

I send thanks to Attorney James Beck of the Philadelphia law office of Reed Smith for bringing this case to my attention.  

Judge Nealon of Lackawanna County Addresses Expert Witness Issues In Med Mal Case

In the case of Grizzanti v. Chiavacci, et al., No. 2011 - CV - 5649 (C.P. Lacka. Co. Jan. 3, 2017   Nealon, J.), Judge Terrence R. Nealon addressed several pre-trial issues in a medical malpractice case arising out of the allege failure of the defendant physicians to properly treat vascular injuries allegedly related to the plaintiff's fractured leg.

On one issue, the court found that the qualifications of vascular surgeon were sufficient to allow that expert of the Plaintiff address the standard of care applicable to an orthopedic surgeon pursuant Section 512(e) of the MCARE Act in this case where it was asserted that vascular surgery and orthopedic surgery were related fields of medicine with respect to the type of injury alleged.

The court also found that the Plaintiff could present both a vascular expert and an orthopedic expert as witness at trial as their testimonies were deemed to be corroborative as opposed to needlessly cumulative expert testimony where each expert would approach the issues presented from the viewpoint of their own specialties.

Judge Nealon also ruled that the requirement under Pa. R.C.P. 4003.5(c) for the production of pre-trial expert reports was applicable only to expert opinion developed or acquired in anticipation of litigation or trial, and inapplicable to the Plaintiff's treating physician's opinions formulated prior to the filing of suit.

As such, the defense motions in limine were denied,

Anyone wishing to review this Grizzanti Opinion issued by Judge Nealon may click this LINK.

Cooper Interrogatories Addressed to Plaintiff's Treating Physician Reconsidered By Judge Mazzoni of Lackawanna County

Tort Talkers may recall that I recently posted on the case of Mina v. Hua Mei, Inc., 2012-CV-7781 (C.P. Lacka. Co. 2016 Mazzoni, J.) HERE in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas ruled that a Plaintiff's treating doctor could be compelled to respond to Cooper Interrogatories seeking bias information, including financial information relative to the experts medical-legal activities.

UPDATE:  On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision.  Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.

Senior Judge Robert A. Mazzoni
Lackawanna County

Judge Mazzoni noted that, upon further consideration of the matter, the threshold test mandated by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) of showing that the Plaintiff's treating physician was a "professional witness" had not been met by the defense.  Accordingly, the court found that it would not be appropriate to allow for the more intrusive Cooper Interrogatories to be submitted to that expert.

In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case.  Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts.  The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."

Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK

Judge Mazzoni's original decision can be viewed HERE.

I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.

Plaintiff's Treating Doctors May Also Be Subjected to Cooper Interrogatories

In a notable detailed Order dated January 6, 2016 in the case of Mina v. Hua Mei, Inc., No. 2012 - CV - 7781 (C.P. Lacka. Co. Jan. 6, 2016 Mazzoni, J.), Judge Robert A. Mazzoni ruled that a Plaintiff's treating physician was required to respond to Cooper Interrogatories designed to seek discovery of financial bias information from that doctor. 

In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises.  Following the accident, the Plaintiff was treated, in part, by a physatrist. 

During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.

The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation.  Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.

Judge Robert A. Mazzoni
Lackawanna County

After reviewing Pa.R.C.P. 4003.5 and the relevant case law, Judge Mazzoni ordered the Plaintiff to respond to the Interrogatories.  The court noted that the issue of whether or not a doctor's opinions were acquired or developed in anticipation of litigation or for trial was a case-by-case determination and that the fact that the doctor was a treating physician, in and of itself, was not conclusive and did not end the inquiry.

In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors.  It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency.  This request, and the report, were written about a year before the litigation began.

Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.

What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality.  The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion.  See Op. at p. 5.

Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."

As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome.  The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.

Anyone wishing to review this decision may click this LINK.

To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK.  If you cannot access the article via the Link, please let me know and I will email you a copy.


I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.

Judge Mariani of Middle District Federal Court Addresses Parameters of Expert Testimony

In his recent Opinion in the case of Owens v. Wal-Mart Stores East, L.P., 2010 W.L. 4867, 3:10-CV-862 (M.D. Pa. Oct. 12, 2012 Mariani, J.), Judge Robert D. Mariani of the United States District Court for the Middle District of Pennsylvania addressed a Plaintiff’s failure to identify any experts during the course of discovery in a federal court slip and fall matter.

The Plaintiff’s attorney indicated that he intended to bring his medical experts to testify live at trial. In Owens, the defense filed a Motion In Limine seeking to preclude the Plaintiff from presenting any medical experts at trial given the Plaintiff’s failure to designate experts or supply any expert reports prior to trial as required by F.R.C.P. 26(a)(2)(B).

The Court ruled that, because the Plaintiff never produced a medical expert report from the treating physician prior to trial, but instead only indicated that the physician would be testifying live at trial, the treating physician’s testimony would be limited to what was contained in the treating physician’s medical records. Accordingly, the Court ruled that the treating physician was not permitted to give testimony on causation except to the extent that it was expressed unambiguously in the treating physician’s records.
In this decision, the Court also precluded the Plaintiff from introducing any lay opinion testimony regarding her medical condition, prognosis, or on the issue of causation.

I send thanks to Attorney Bill Mabius for forwarding this case to my attention.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

Lackawanna County Judge Nealon Rules on Discovery From "Treating Physician"

The trial in the personal injury claims of neurosurgeon, Dr. David J. Sedor, and his wife, against the Community Medical Center, Sky Medical, LLC, and Sky Orthopaedics, et.al., No. 05 CV 2143 (Lacka. Co. Nealon, J.) ended late last week in the Lackawanna County Court of Common Pleas before Judge Terrence R. Nealon.

Prior to the commencement of this trial, the Court issued a September 21, 2010 Opinion and Order denying the Plaintiffs’ Motion In Limine to preclude expert testimony by Seth Braunstein, M.D. was denied.

This case arose out of an incident during which a noted local neurosurgeon was struck by a hospital bed as it was being pushed through a hallway of a hospital by an orderly and another person. The Plaintiff, Dr. Sedor, alleges that his injuries from this incident, and the associated infections, unfortunately required him to eventually under a mid-thigh amputation of his right leg.

With regards to the Motion In Limine noted above, the Plaintiffs based their pre-trial motion upon Pa. R.C.P. 4003.6 which provides that, unless a Plaintiff’s treating physician is the attorney’s client or an actual or ostensible employee of the attorney’s client, “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.”

Under this Rule of Civil Procedure, if a party or an attorney privately contacts a Plaintiff’s treating physician and secures information in violation of this ban against ex parte communications, Rule 4003.6 provides a basis for precluding the culpable party or attorney from utilizing any improperly obtained information at trial.

The Defendants in this matter, in support of their medical causation argument, retained a Dr. Seth M. Braunstein of PENN Rodebaugh Diabetes Center to contest whether or not the Plaintiff’s ultimate need for an amputation of a leg related back to the subject incident or to an improper treatment of the Plaintiff’s type II diabetes.

The Plaintiffs pointed out, during the course of the Plaintiff’s treatment, the amputation procedure was performed at the hospital of the University of Pennsylvania, during which time the Plaintiff’s diabetic condition was treated by an endocrinologist who were affiliated with the PENN Rodebaugh Diabetes Center.

Although the Plaintiff did not specifically allege that Dr. Seth Braunstein personally treated the Plaintiff, the Plaintiff asserted that it was “probable” that all of the endocrinologists at the PENN Rodebaugh Diabetes Center, including Dr. Braunstein, were involved in or participated in his care and that it was “likely” that Dr. Braunstein had some contact with this colleagues regarding Dr. Sedor and his treatment.

The Defendants denied that Dr. Braunstein ever treated Dr. Sedor or billed him for any services or was otherwise in any way involved in Dr. Sedor’s care.

In his Opinion, Judge Terrence R. Nealon, reviewed the applicable case law as well as an article he himself had previously written on the topic that appeared in the Barrister magazine, and concluded that, under Pennsylvania law, “[a]lthough it is not necessary for the physician to physically touch or personally meet the patient in order to qualify as a “treating physician” under Rule 4003.6, some form of a physician-patient relationship must exist between the Plaintiff and the medical witness for the protection provided by the Rule to be applicable.”

Turning to the facts at case at hand, Judge Nealon found that Dr. Braunstein was not involved with Dr. Sedor’s treatment and there was no indication that Dr. Braunstein had ever officially, or even informally, and consulted by another other PENN Rodebaugh Diabetes Center doctor who treated Dr. Sedor.

Since there was no evidentiary basis upon which to find Dr. Braunstein to be a “treating physician” of Dr. Sedor under Rule 4003.6, the ex parte prohibition set forth in that Rule was found to be inapplicable to Dr. Braunstein in this case. As such, the Plaintiff’s Motion to Preclude the Expert Testimony of Dr. Seth Braunstein was denied.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.