Case Law Alerts
A viable fetus can recover for conscious pain and suffering under Pennsylvania’s Survival Act.
Judge Nealon of the Lackawanna County Court of Common Pleas held that a board-certified neonatal and perinatal medicine expert is competent to render an opinion that a fetus at 33.4 weeks gestation is sufficiently developed for conscious perception of pain. Defense counsel filed a motion in limine prior to trial on the grounds that there was no scientific authority for such an opinion. As such, defense counsel requested a Frye hearing to determine whether the plaintiff’s expert opinion was supported by accepted scientific methodology.
After reviewing the submissions by the parties, Judge Nealon denied the defendants’ motion in limine because the plaintiffs submitted medical literature to support its expert’s opinion. Specifically, the plaintiffs introduced articles published in four different accredited medical journals that supported the conclusion that viable fetuses at 33 weeks gestation have the capacity for conscious perception of pain. Judge Nealon further pointed out that defense counsel submitted no contrary medical literature to support their Frye motions, relying only upon their own expert’s disagreeing opinion.
Because of this opinion, there is precedent for the parents of a deceased viable fetus to seek damages for the claimed conscious pain and suffering that the fetus may have suffered while still in the womb. Practicing obstetricians and their insurers should take special note that the plaintiff’s bar will begin to use this opinion to seek conscious pain and suffering damages in circumstances such as this.
On a separate note, defense counsel should take Judge Nealon’s advice when supporting their Frye motions. If a plaintiff has submitted medical literature to support a “novel” theory of recovery—such as the medical journal articles in this case—defense counsel must submit contrary and competing medical literature in order to show that the suggested methodology is not “accepted in the scientific community.” It is simply not enough to rely solely on the competing opinions of the defense expert.
Case Law Alerts, 3rd Quarter, July 2016
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