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HomeMy WebLinkAbout99-5023 CivilSUE ANN HINTON, INDIVIDUALLY, and JEREMY L. CHUBB, a minor, by SUE ANN HINTON, His Guardian, Plaintiffs Vo THE BALTIMORE RH TYPING LABORATORY,: INC.; ROBERT E. WENK,: M.D., INDIVIDUALLY; : MARGARET BROOKS, : INDIVIDUALLY; and : TERRY HOUTZ, : INDIVIDUALLY, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLANL~ C(;UNTY. PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5023 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this [~9[~ day of January, 2000, upon consideration of Defendants' preliminary objections in the nature of demurrers to Plaintiffs' amended complaint, and for the reasons stated in the accompanying opinion, Defendants' preliminary objections are sustained and Plaintiffs' amended complaint is dismissed. BY THE COURT, Sue Ann Hinton P.O. Box 3708 Harrisburg, PA 17115 Plaintiff, Pro Se Susan A. Candiello, Esq. GATES & ASSOCIATES, P.C. 1013 Mumma Drive, Suite 100 Lemoyne, PA 17043 (Courtesy Copy) Randall G. Gale, Esq. THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 and Andrew H. Briggs, Esq. POST & SCHELL, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Attorneys for Defendants The Baltimore RH Typing Laboratory, Inc.; Margaret Brooks and Terry Houtz Michael M. Badowski, Esq. BADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendant Robert E. Wenk, M.D. SUE ANN I IiNTON. INDiV!DUALLY, and JEREMY L. CHUBB, a minor, by SUE ANN HINTON, His Guardian, Plaintiffs Vo THE BALTIMORE RH TYPING LABORATORY,: INC.; ROBERT E. WENK,: M.D., INDIVIDUALLY; : MARGARET BROOKS, : INDIVIDUALLY; and : TERRY HOUTZ, : INDIVIDUALLY, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5023 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., January 13, 2000. This case presents the issue of whether the witness immunity doctrine insulates a court-appointed expert witness from civil liability premised upon medical malpractice. The question is raised by way of preliminary objections in the nature of demurrers to Plaintiffs' amended complaint; the complaint seeks damages that allegedly resulted from Defendants' negligence in connection with a blood test to determine paternity. For the reasons stated in this opinion, the preliminary objections to the amended complaint will be sustained. The Pennsylvania Supreme Court, however, has recently noted that the issue has not been resolved at its level. STATEMENT OF FAC'I S In considering a prclin:inary ot2:~ectio~ in ,l",e n:~l~t,'c ,-,f a demurrer to a complaint, the court will accept "as true all of the compiaint's material facts and all reasonable inferences made therefrom? Plaintiffs' amended complaint in the present case may be summarized as follows: In a 1988 child support action filed in this court by Plaintiff Sue Ann Hinton against an individual named James R. Chubb, who contested paternity, the Honorable Harold E. Sheely appointed Defendant Baltimore RH Typing Laboratory to perform red cell and HLA blood grouping tests on Plaintiff Sue Ann Hinton (mother), Minor Plaintiff Jeremy L Chubb (child), and James R. Chubb (alleged father) for purposes of determining the probability of paternity on the part of Mr. Chubb.2 Defendant Baltimore RH Typing Laboratory, through its employees, Defendants Wenk, Brooks and Houtz, performed the tests and issued a report to the court excluding Mr. Chubb as the father) Based upon the report, the court dismissed the complaint for child support.4 As a consequence ora second child support action commenced in 1998, new blood tests were performed by a second laboratory on the mother, child and alleged father,s These tests revealed a 99.99% probability that Mr. Chubb was the father of the child.6 Baribault v. Peoples Bank of Oxford, 714 A.2d 1040, 1042 (1998). Plaintiffs' amended complaint, paragraphs 1-3, 7. Plaintiffs' amended complaint, paragraphs 9-11. Plaintiffs' amended complaint, paragraph 14. Plaintiffs' amended complaint, paragraph 21-23. Plaintiffs' amended complaint, paragraph 29. 2 Negligence on Defendants' part produced the initial erroneous result,7 and caused damages of various sorts to Plaintiffs.8 The preliminary objections filed by Defendants to Plaintiffs' amcnded complaint seek dismissal of Plaintiffs' pleading on the basis of the witness immunity doctrine. They rely upon the holding of the Pennsylvania Superior Court in Clodgo v. BowmaJ~, 411 Pa. Super. 267, 601 A.2d 342, appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352,625 A.2d 612 (1993). Oral argument was held on the matter on December 8, 1999.9 DISCUSSION A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim upon which relief can be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); see Clark v. General Mills, Inc. 48 Cumberland L.J. 124 (1999). In Pennsylvania, the general rule is clear that the law as established by an intermediate appellate court is binding precedent upon lower courts unless it has been reversed or overruled by the Supreme Court. See Sorber v. American Motorists Insurance Co., 451 Pa. Super. 507, 680 A.2d 881 (1996). ~0 the Pennsylvania Superior Court reviewed an order of a In Clodgo v. Bowman, lower court granting preliminary objections in the nature of a demurrer to a complaint filed by a mother and her child against a hospital, a laboratory, a hematology center, and a physician, based upon an erroneous report generated by defendants in response to a 7 Plaintiffs' amended complaint, paragraphs 40-42,63-66, 83-85. ~ Plaintiffs' amended complaint, paragraphs 43-50, 67-74, 87-93. 9 Although the adult plaintiff appeared at the argument, no brief was submitted on behalf of Plaintiffs and Plaintiffs' counsel of record did not appear. ~0 411 Pa. Super. 267, 601 A.2d 342, appealgranted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993). 3 co~rt appointment fc, r administration of a blood test to determine paternity. The report i:~,:~:rc~.-~!~- c×,.:l~.~i,.x! ',., certain defendant in a child support action filed by the mother as thc posgi3~c f~tti~cr of the child, and resulted in a dismissal of the support action and alleged damage to the plaintiffs. In affirming the lower court's dismissal of the complaint in Clodgo, the Superior Court premised its decision upon the doctrine of xvitness immunity. The doctrine, which provides for civil immunity with respect to "communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought," was designed "to prevent witnesses from refusing to testify based on a fear of potential civil liability," according to the court.~! ~ Clodgo v. Bowman, 411 Pa. Super. 267, 271, 274, 601 A.2d 342, 344-45, appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993). An eloquent expression of the rationale for the doctrine of witness immunity is found in the opinion of the United States Supreme Court in Briscoe v. LaHtte, 460 U.S. 325, 330-34, 103 S. Ct. 1108, 1112-14, 75 L. Ed. 2d 96, 105-07 (1983) (citations omitted). The immunity of parties and xvitnesses from subsequent damages liability for their testimony in judicial proceedings was xvell established in English common law. Some American decisions required a showing that the witness' allegedly [tortious] statements were relevant to the judicial proceeding, but once this threshold showing had been made, the witness had an absolute privilege. The plaintiff could not recover even if the witness knew the statements were false and made them with malice. In the words of one 19th century court, in damages suits against witnesses, "the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." A witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. Even within the constraints of the witness' oath there may 4 Rejecting the argument that the doctrine should not be applied i~t thc ct_,ntext of a medical malpractice action (as opposed, for instance, to its more con~m,~ ,_,,ntext of a defamation action), the court in Clodgo observcd that "t};c r[,~;~,',~l~- i'or tl',c immunity applies just as strongly to medical malpractice actions as tt; any othcr type of civil action?2 Thus, the Clodgo court stated, [o]ur precedent is clear. The form of the cause of action is not relevant to application of the privilege. Regardless o!' the tort contained in the complaint, if the communication was made in connection with judicial proceedings and xvas material and retcvant to it, the privilege applies. Thus, while we agree with appellant's premise that this action is not premised upon defamation but is a medical malpractice action, this does not alter the conclusion that the privilege applies. We recognize that this case presents a compelling situation. The doctor has acknowledged his incorrect recording of the relevant data, and his error was at least partially the reason that [the child] lost his child support action against [the alleged father]. However, the maxim is that hard cases make bad law, and as that maxim applies herein, we cannot allow an exception in this case to application of the immunity. Clodgo v. Bowman, 411 Pa. Super. 267, 273,601 A.2d 342, 345, appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993). be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff., to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. But the truthfinding process is better served if the witness' testimony is submitted to "the crucible of the judicial process so that the factfinder may consider it, after cross- examination, together with the other evidence in the case to determine ~vhere the truth lies." In the case at bar, the facts do not appear to be fairly distinguishable from those in Clo4go. Although the doctrine of witness immunity has recently been held by the ?cnnsylvania Supreme Court to be inapplicable to a professional negligence action brought against an expert witness where (a) "the allegations of negligence are not premised on the substance of the expert's opinion" and (b) the witness had been retained by the plaintiff, the court expressly reserved the issue of the application of this limitation upon the doctrine to cases such as Clodgo, where the expert witness had been court- appointed. LLMD of Michigan, Inc. v. Jackson-Cross Co., __ Pa. , n.4, 740 A.2d 186, 188 n.4 (1999) (witness immunity doctrine held not to bar professional malpractice action against company hired to provide services in federal lawsuit as plaintiff's expert on issue of lost profits, where allegations of negligence were premised upon carelessness in performance of mathematical calculations).~3 The case of Clodgo v. Bowman, supra, being binding precedent and on point with respect to the present case, the following order will be entered: ORDER OF COURT AND NOW, this 13th day of January, 2000, upon consideration of Defendants' preliminary objections in the nature of demurrers to Plaintiffs' amended complaint, and for the reasons stated in the accompanying opinion, Defendants' preliminary objections ~2 Clodgo v. Bowman, 411 Pa. Super. 267, 274, 601 A.2d 342, 345-46, appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993). ~3 "The issue of whether the witness immunity doctrine bars professional malpractice actions against a court-appointed expert witness was addressed by the Superior Court in Clodgo v. Bowman, 411 Pa. Super. 267, 601 A.2d 342 (1992), appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as having been improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993), (holding that witness immunity doctrine insulates a court- appointed expert witness from liability premised upon medical malpractice). The applicability of the doctrine to a court-appointed expert witness is not squarely before this Court, and we will leave that question for another day." LLMD of Michigan, Inc. v. Jackson-Cross Co., __ Pa. , __ n.4, 740 A.2d 186, 188 n.4 (1999). 6 are sustained and Plaintiffs' amem[cd ~:~m,.r,.laint is dismissed. BY THE COURT, Sue Ann Hinton P.O. Box 3708 Harrisburg, PA 17115 Plaintiff, Pro Se /s,' J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Susan A. Candiello, Esq. GATES & ASSOCIATES, P.C. 1013 Mumma Drive, Suite 100 Lemoyne, PA 17043 (Courtesy Copy) Randall G. Gale, Esq. THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 and Andrew H. Briggs, Esq. POST & SCHELL, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Attorneys for Defendants The Baltimore RH Typing Laboratory, Inc.; Margaret Brooks and Terry Houtz Michael M. Badowski, Esq. BADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendant Robert E. Wenk, M.D. 7