Loading...
HomeMy WebLinkAbout96-3412 CivilBARBARA JEAN K. ABDO SHAY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH GEORGE, DEFENDANT IN RE: 96-3412 CIVIL TERM POST-TRIAL MOTION OF PLAINTIFF a motion for post-trial relief. She seeks (1 (2) a judgment n.o.v, or a new trial on the a new trial on an alleged evidentiary error, issue of causal negligence, and (3) a new trial on the issue of damages. Defendant maintains that plaintiff is not entitled to any relief. At trial, plaintiff maintained that defendant's vehicle was traveling approximately OPINION AND ORDER OF COURT Bayley, J., July 25, 2003:-- This civil action arose from a motor vehicle accident on June 18, 1994. Plaintiff was a front seat passenger in a BMW that was struck from the rear by a Chevrolet driven by defendant, Elizabeth A. George, at the intersection of Route 11 and 114 in Cumberland County. The case was tried before a jury with defendant admitting negligence. On April 29, 2003, the jury found that the negligence of defendant was not a substantial factor in bringing about harm to plaintiff. A limited tort issue was presented to the jury but not decided because the jury found that the negligence of defendant was not a substantial factor in bringing about harm to plaintiff. Plaintiff filed 96-3412 CIVIL TERM forty miles per hour at impact and that the two vehicles violently collided. She testified she sustained injuries to her lower and upper back, shoulders and neck, with resulting headaches, depression, and fibromyalgia. Defendant testified that she was traveling at approximately five miles per hour at impact which was slight. Plaintiff was examined at a hospital on the day of the accident and then she consulted her family physician. After receiving treatment from several medical sources for her injuries she consulted Si Van Do, M.D., a specialist in physical medicine/rehabilitation, in August of 1995. He testified that plaintiff suffered sprains and strains to the neck and back as a result of the accident, and that these injuries progressed into myofascial pain syndrome in her upper neck and shoulder. Michael Lupinacci, M.D, a specialist in physical medicine/rehabilitation and pain management, examined plaintiff in August 1998, a little over four years after the accident, and concurred with Dr. Do's diagnosis that the myofascial pain syndrome was caused by the accident. He testified that the myofascial pain syndrome had progressed to fibromyalgia. Sanjiv Naidu, M.D., an orthopedist, testified for defendant. Plaintiff filed a Motion in Limine to preclude his testimony. The motion was denied as well as plaintiff's trial objection. Dr. Naidu examined plaintiff on April 1, 2003. He testified: Q. Okay. And what was your impression? A. Well, basically my conclusion was that she had subjective pain in the neck, both on the right and left side, with subjective bilateral lower SI joint pain. That's down here by the buttocks - Q. Okay. -2- 96-3412 CIVIL TERM A. - where I indicated before. And I found nothing objective. My second conclusion was based on the rehab doctor's notes, which was fibromyalgia, which was not related to the motor vehicle accident. Q. Well, Doctor, do you hold an opinion as to what, if any, injury Ms. Shay may have sustained in the June 18th, 1994 accident? A. I think what's reasonable to conclude based on my exam and based on what - what data I've been provided, including the hard evidence of MRIs and EMGs and notes from Dr. Esterhai's office, the only thing you can conclude is that she did have some sort of strain or sprain of the cervical spine, shoulder area, and probably even the lower back. And currently, at this point, she has none of those. Q. And a sprain or strain as you would relate it to this automobile accident, what would be the normal course for that type of injury? Would it resolve? A. Yes. It should resolve within three to six months. Sometimes it takes up to a year. It's been nine years. Q. But it's your opinion that fibromyalgia is not related to the motor vehicle accident of June 18, 1994; is that correct? A. That's correct. Q. Doctor, did you render all of your foregoing opinions to a reasonable degree of medical certainty? A. Yes. (Emphasis added.) WAS SANJIV NAIDU, M.D., PROPERLY PERMITTED TO TESTIFY FOR DEFENDANT? Plaintiff maintains that Sanjiv Naidu, M.D., as an employee of the Hershey Medical Center, should not have been allowed to testify for defendant because plaintiff was treated by Paul Eslinger, M.D., and Laszlo Gerd, M.D., also employees of the Hershey Medical Center, for injures she received in the accident. Plaintiff argues that Pa. Rules of Civil Procedure 4003.5(3), and 4003.6, and case law prohibited the testimony. Rule 4003.5(3) states: A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as -3- 96-3412 CIVIL TERM a witness at trial, except a medical expert as provided in Rule 4010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate. Dr. Naidu was never employed by plaintiff in any way, nor were Dr. Eslinger and Gerd employed by plaintiff as an expert in anticipation of litigation or preparation for trial. Thus, the discovery Rule 4003.5(3) does not apply. Rule 4003.6 provides: "Information 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." Plaintiff cites to Alexander v. Knight, 197 Pa. Super. 79, 177 A.2d 142 (1962), where the Superior Court of Pennsylvania, indicta, stated that a treating physician has a duty to his patient not to affirmatively assist the patient's antagonist in litigation. Plaintiff also cites to Manion v. N.P.W. Medical Center of N.E. Pennsylvania Inc., 676 F.Supp. 585 (M.D. Pa. 1987), where the Federal Court prevented the plaintiff's physician from being called as a defense expert. These cases are distinguishable from the present case because Dr. Naidu was never plaintiff's treating physician. Rather, he conducted a medical examination of plaintiff for defendant in preparation for trial. Plaintiff was treated by Dr. Eslinger and Dr. Gerd who were not in Dr. Naidu's Department of Orthopedics at the Hershey Medical Center. Neither Rule 4003.6 nor case law prohibited Dr. Naidu from testifying for defendant. I1. IS PLAINTIFF ENTITLED TO A NEW TRIAL BECAUSE THE VERDICT IS AGAINST THE WEIGHT OF EVIDENCE? -4- 96-3412 CIVIL TERM Plaintiff argues that the verdict was against the weight of evidence because the medical experts for both her and defendant agreed that she suffered some injury in the collision. A jury is free to believe all, part or none of the evidence and can selectively accept as credible any part of a witness's testimony and disregard other parts. Neison v. Hines, 653 A.2d 634 (Pa. 1995). However, a verdict must bear a reasonable relation to the loss suffered by the plaintiff as demonstrated by the uncontroverted evidence presented at trial. Id. "Where there is no dispute that the defendant is negligent and both parties' medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant's negligence was not a substantial factor in bringing about at least some of plaintiff's injuries." Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002); Neison v. Hines, supra. Defendant, citing Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999), maintains that Dr. Naidu did not concede that plaintiff sustained any injury from the accident on June 18, 1994. In Livelsberger, the defendant's medical expert testified that the plaintiff "may have" sustained a cervical sprain. However, he refuted the existence of the injury by further testifying that all of plaintiff's complaints predated the accident, no subjective medical tests established injury, and the only way to believe that the plaintiff was injured in the accident was to believe her subjective complaints. The Superior Court concluded that this testimony did not concede injury from the accident. In the case sub judice, Dr. Naidu specifically testified for defendant that -5- 96-3412 CIVIL TERM plaintiff suffered some injury as a result of the accident. He stated that a reasonable conclusion based on his own examination, objective and subjective data was that: "she did have some sort of strain or sprain of the cervical spine, shoulder areas, and probably even the lower back," although these injuries have resolved. This is an unequivocal statement that plaintiff suffered injury from the accident. Therefore, the jury verdict that the negligence of defendant was not a substantial factor in bringing harm to plaintiff was against the weight of the evidence. A judgment n.o.v, as to causation is warranted. See Campagna v. Rogan, 2003, Pa. Super. 257. III. SHOULD A NEW TRIAL BE LIMITED TO DAMAGES FOR ONLY THE UNCONTESTED CLAIM FOR INJURIES? The jury found that defendant was not liable for the significant injuries claimed by plaintiff because they found that defendant's negligence was not a substantial factor in causing those injuries. The issue of damages is not intertwined with liability because negligence was admitted by defendant. As to whether a new trial should be limited to damage only for the uncontested claim for injuries we conclude that Hyang v. Lynde, 820 A.2d 753 (Pa. Super. 2003), is on point.~ In Hyang, the defendant admitted negligence in an accident. A jury found that the negligence was not a substantial factor in causing plaintiff harm. The Superior Court affirmed an order of the trial court granting a new trial because a medical expert who testified for defendant agreed that the plaintiff had suffered a minor injury from the accident although not the more ~ In accord Campagna v. Rogan, supra. -6- 96-3412 CIVIL TERM significant injury claimed by the plaintiff. The Superior Court, relying on Neison v. Hines, 539 Pa. 516 (1995), stated: Courts frequently face the issues in this case. The plaintiff claims that he or she suffered significant injuries, often resulting in long-term disability from carrying out normal daily life. The defense claims only a minor strain was suffered. The parties remain focused on the major injuries, and no one remembers that the jury must at least award damages for the uncontroverted limited pain from the sprain and strain. The issue that has not been addressed is what happens if a new trial is granted. Does the plaintiff get a second bite at the apple and is he or she able to start all over again and claim significant damages from disc involvement, etc.? Or, in the alternative, is the new trial limited to damages only from the strain and sprain the both sides' experts concede resulted from the accident? We believe that justice requires the latter solution, and we therefore limit the new trial to permitting the jury to award damages only for neck and back strain and sprain. Therefore, in the present case, we will grant plaintiff judgment n.o.v, on legal causation and award her a new trial limited to the damages conceded by defendant. Also, the limited tort issue that was not reached by the jury will have to be addressed. ORDER OF COURT AND NOW, this day of July, 2003, IT IS ORDERED: (1) Plaintiff, Barbara Jean K. Abdo Shay, is granted judgment n.o.v, as to legal causation of harm caused to her by the negligence of defendant in the accident on June 18,1994. (2) Plaintiff is awarded a new trial on the issues of limited tort and damages conceded by defendant. By the Court, -7- 96-3412 CIVIL TERM David W. Knauer, Esquire For Plaintiff Edgar B. Bayley, J. Andrew C. Lehman, Esquire For Defendant :sal -8-