Pennsylvania Superior Court Reinforces Evidentiary Issues Commonly Raised in Medical Malpractice Trials

In Hassel v. Franzi, 207 A.3d 939 (Pa. Super. 2019), the Pennsylvania Superior Court addressed evidentiary issues that are commonly raised in medical malpractice cases. Specifically, the Superior Court considered: (1) the use of learned treatises; (2) notice of expert testimony in accordance with Pa.R.C.P. 4003.5; (3) corroborative versus cumulative expert testimony; and (4) admissibility of prior medical malpractice claims by a plaintiff and prior relationships between counsel and experts.

The plaintiff alleged that the decedent’s family physician and orthopedic surgeon failed to prevent and treat deep vein thrombosis and pulmonary embolism. After a jury trial, the jury found no negligence against the surgeon and negligence, but no causation, against the family doctor. The plaintiff appealed, raising evidentiary issues that we often see in pre-trial motions or at trial.

The Use of Learned Treatises and the Requirement to Request a Limiting Instruction

The plaintiff argued that the defense, during both direct and cross-examination of the experts, improperly published medical literature and read the materials into evidence. The Superior Court reiterated that Pennsylvania law allows an expert witness a limited use of medical literature on direct examination at trial. On direct, an expert may not read medical literature into evidence or publish it to the jury for the purpose of proving the truth of the statements contained therein. An expert witness may, however, testify on direct that he relies on medical literature to form his opinions.

On cross, on the other hand, an expert witness may be questioned on the contents of any publication relied upon in forming an opinion or any literature that the expert considers reliable. The purpose on cross must be to challenge the expert’s credibility, not to admit the contents for the truth of the matter asserted.

The Superior Court relied on the Pennsylvania Supreme Court’s decision in Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000), wherein it advised courts to exercise extreme caution and issue limiting instructions when allowing the use of learned treatises at trial. A limiting instruction is necessary to ensure that the publications themselves do not become the focus of the examination and supersede the expert’s own testimony. The Superior Court noted, however, that a limiting instruction is only given upon a party’s request. Because plaintiff’s counsel never requested a limiting instruction at trial, the issue was waived on appeal.

Notice of Expert Testimony and Testimony Outside the Fair Scope of an Expert’s Report

Under Pennsylvania law, an expert may only testify at trial regarding matters within the fair scope of his pre-trial expert report. The Superior Court explained that the purpose of Pa.R.C.P. 4003.5, which governs discovery of expert testimony, is to avoid unfair surprise to an adversary regarding the substance of an expert’s proposed testimony. When it comes to a discrepancy between the expert’s pre-trial report and his trial testimony, the critical issue is fairness and whether the adversary was prevented from preparing a meaningful response.

On appeal, the plaintiff, Hassel, argued that the defense experts testified outside the fair scope of their respective expert reports. Specifically, the plaintiff claimed that one defense expert testified regarding the placement of a filter to prevent a clot, but his report never discussed filters. Another expert testified that the defendant’s decision to prescribe aspirin was within the standard of care, which the plaintiff alleged was not contained in his expert report.

The Superior Court disagreed that these matters were outside the scope of the defense experts’ reports. Regardless, the Superior Court held that the plaintiff’s counsel had ample opportunity to cross-examine the defense experts at trial and conducted a “capable and productive” cross-examination. The Superior Court found, therefore, that there was no surprise or unfairness to the plaintiff.

Corroborative Versus Cumulative Expert Testimony

The plaintiff also argued that the trial court erred in allowing the defendants to introduce cumulative and duplicative expert testimony. The plaintiff asserted that the defense’s experts all reached the same conclusion that aspirin was an appropriate treatment.

In rejecting the plaintiff’s arguments, the Superior Court cited Klein v. Aronchick, 85 A.3d 487 (Pa. Super. 2014). There the court held that expert testimony is corroborative, not cumulative, when, as in the plaintiff’s case, experts with different specialties opine on the standard of care from different clinical perspectives.

Cross-Examination With Prior Medical Malpractice Lawsuits and Prior Relationships Between Counsel and Experts

The plaintiff argued that the trial court erred by precluding him from cross-examining a defendant regarding his prior involvement in medical malpractice cases and in not allowing him to cross-examine a defense expert regarding his prior relationship with defense counsel. The Superior Court ultimately held that the plaintiff “failed in his duty to persuade us that these purportedly erroneous evidentiary rulings resulted in prejudice so as to warrant a new trial.” The Superior Court noted, however, that the use of prior medical malpractice lawsuits against a defendant physician at trial, as well as any pre-existing relationship between counsel and his expert, are both matters that may be admissible at trial and are left to the trial court’s discretion.

*Rob is an associate in our Scranton, Pennsylvania office. He can be reached at (570) 496-4658 or rjaldrich@mdwcg.com.

_{Defense Digest, Vol. 26, No. 1, Spring 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}