HomeMy WebLinkAbout00-2358 Civil (2)LORETTA RUNK, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION- LAW
:
GREG McNAUGHTON :
and PHANTOM :
COMMUNICATIONS, :
INC., :
Defendants : NO. 00-2358 CIVIL TERM
~ ORDER OF COURT
AND NOW, this, day of June, 2001, upon consideration of defendants'
motion in limine to exclude reference to the report of defendants' independent
medical examiner, and for the reasons stated in the accompanying opinion, the
motion is denied, without prejudice to defendants' right to challenge the evidence
at trial on the basis of its failure to meet one or more of the three basic criteria
referred to in the accompanying opinion.
BY THE COURT,
Wesley O~'r,! Jr., J.
David L. Lutz, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Gregory E. Cassimatis, Esq.
4999 Louise Drive, Suite 103
Mechanicsburg, PA 17055
Attorney for Defendants
DISCUSSION
Although an expert may base his or her opinions on facts as to which the
expert has no personal knowledge, "earl[y] Pennsylvania law required that the
expert base his or her opinion on facts supported by evidence in the record."
Packel & Poulin, Pennsylvania Evidence {}703-1, at 690 (2d ed. 1999). This rule
was initially relaxed as to medical experts, who were permitted to rely upon
reports of others in certain circumstances, and now has been more generally
relaxed. Id. {}703.1. Presently, under Pennsylvania Rule of Evidence 703, the
principle is as follows:
An expert may base an opinion on facts or data "perceived" by
the expert. This means facts of which the expert has personal
knowledge. An expert may base an opinion on facts or data
"made known to the expert at or before the hearing." This
means facts or data as to which the expert has no personal
knowledge. And finally, "If of a type reasonably relied upon
by experts in the field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in
evidence." This means that the facts or data need not be in the
record, and the facts or data need not even be evidence that
would be admissible if offered in evidence.
Id. at 692 (citations omitted).
There are, however, limitations on expert opinion testimony not based on
personal knowledge or facts in the record. These have been described as follows:
First, the question of whether the evidence is "of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences" is a preliminary question for
determination by the trial court. In the usual case, the evidence
to support this finding will be provided by the expert. Second,
the expert may not simply recite the opinion of another expert,
unless the expert testifies that he or she relied on that opinion
in forming his or her opinion. This is consistent with prior
Pennsylvania law. Third, the Comment to Pa.R.E. 703
indicates, that if the factual basis that supports the expert's
opinion would otherwise be inadmissible the jury should be
instructed to consider the evidence only to explain the basis for
the expert's opinion, not as substantive evidence. Presumably,
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if the inadmissible evidence would be unfairly prejudicial or
conflict with some other strong policy, such as the
constitutional rights of a criminal defendant, it could not be
presented to the jury.
Id. at 692-93 (emphasis added) (citations omitted).
In the present case, no authority has been found for the proposition that an
opinion of a plaintiff's expert may not be based, at least in part, on a report of an
independent medical examiner because (1) defendant does not intend to call the
independent medical examiner as a witness or (2) any reliance by plaintiff's expert
upon such a report would be unreasonable per se. To this extent, and somewhat
abstractly, defendants' motion can be disposed of favorably to plaintiff.
Whether the opinions in the present case, however, meet the three more
case-specific criteria referred to above can not be determined from the existing
record. For this reason, the following order will be entered:
ORDER OF COURT
AND NOW, this/:?~"~day of June, 2001, upon consideration of defendants'
motion in limine to exclude reference to the report of defendants' independent
medical examiner, and for the reasons stated in the accompanying opinion, the
motion is denied, without prejudice to defendants' right to challenge the evidence
at trial on the basis of its failure to meet one or more of the three basic criteria
referred to in the accompanying opinion.
BY THE COURT,
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
David L. Lutz, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
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