HomeMy WebLinkAbout2006-3497 Civil
SCOT J. COSTA AND : IN THE COURT OF COMMON PLEAS OF
DANIELLE C. COSTA, : CUMBERLAND COUNTY, PENNSYLVANIA
HUSBAND AND WIFE, :
PLAINTIFFS :
:
V. :
:
TRAVIS MCCOLLUM, :
DEFENDANT : 06-3497 CIVIL TERM
IN RE: OPINION PURSUANT TO P.A. R.A.P. 1925
Ebert, J., June 1, 2010 -
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Plaintiff, Scot J. Costa, appeals a jury verdict entered in favor of Travis McCollum, Defendant,
and this court's subsequent denial of post-trial motions. Plaintiff complains of the following matters on
appeal:
1. Whether the Plaintiffs are entitled to a new trial as a matter of law,
based on the jury's verdict in finding no causation, where Defendant's
negligence is legally established and medical experts on both sides of the
dispute offered expert testimony that Scot Costa suffered injury as a result
of a motor vehicle accident.
2. Whether the Court committed legal error or an abuse of discretion by
permitting the Defendant's counsel to introduce the smoking habit of Scot
Costa to the jury, notwithstanding Plaintiffs' Motion in Limine No. 1,
when both parties' medical experts offered their unequivocal medical
opinions at trial that Mr. Costa's smoking played no causal role in the
injuries he suffered in the motor vehicle accident, thereby unfairly
prejudicing the jury against Plaintiffs.
3. Whether the Court committed legal error or an abuse of discretion by
permitting the Defendant's counsel to introduce the trial deposition
testimony of a neuro-radiologist, Dr. Andrew Shaer, over the Plaintiffs'
Emergency Motion for a Protective Order and Motion in Limine No. 2,
when Dr. Shaer's testimony merely echoed an opinion regarding
radiological evidence already established by the testimony of both parties'
medical experts, and the Defendant failed to identify Dr. Shaer as an
expert witness for nearly two (2) years, despite receiving numerous
reports from Dr. Shaer and deposing Plaintiffs' medical expert with the aid
of such (then undisclosed) reports, until immediately before trial.
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For the purposes of this opinion, this court refers to Scot J. Costa as Plaintiff even though Danielle C. Costa is also
a plaintiff in this case.
Pl.'s Statement of Matters Complained of on Appeal dated Feb.11, 2010 (citations omitted).
I. Facts
A. Automobile Accident
On May 1, 2005, Defendant's vehicle collided with the rear end of Plaintiff's vehicle. Plaintiff,
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on his power, climbed out of the driver’s side door. After the accident, emergency personnel arrived
on the scene and transported Plaintiff to Holy Spirit Hospital where he was x-rayed and immediately
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released. Two days later, Plaintiff attended a previously scheduled doctor's visit with William Joseph
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Beutler, M.D. The original purpose of this visit was for Dr. Beutler to evaluate the progress of
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Plaintiff's recovery from surgery unrelated to the automobile accident. For several months Dr.
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Beutler had been treating Plaintiff for a workplace injury suffered April 23, 2004. Ultimately, Plaintiff
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underwent spinal surgery performed July 19, 2004. At the time of the automobile accident, Plaintiff
was roughly ten months post-operative.
B. Workplace Injury
In April 2004, Plaintiff sustained a workplace injury in the course of his employment as a
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tractor-trailer operator. Plaintiff described this injury to the jury as follows, “[When I] [w]ent to get
back up in my truck from the guard shack, I hit the top of my head on the top doorjamb. It knocked me
out of the truck. And from there it was nothing but pain. I had a hard time turning my neck and
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everything else.” Following the workplace injury, Plaintiff sought medical treatment and was
2
Notes of Testimony, April 18 and 19, 2009, at 28, 29 (hereinafter N.T. at __).
3
N.T. at 30.
4
N.T. at 30.
5
N.T. at 72.
6
N.T. at 62.
7
N.T. at 66.
8
N.T. at 62.
9
N.T. at 23.
2
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ultimately referred to Dr. Beutler.
Dr. Beutler diagnosed Plaintiff as suffering from “severe canal stenosis and ruptured disk, C6-
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7.” Dr. Beutler explained to the jury, “in the middle of the spinal cord [Plaintiff] had an enlargement
with spinal fluid in it. So the spinal cord is becoming enlarged from this collection of fluid that was in
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the upper thoracic spine, just below where [Plaintiff] had the large ruptured disk.” After considering
various non-surgical treatments for his condition, Plaintiff elected to undergo surgery, performed by Dr.
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Beutler on July 19, 2004.
During the surgery Dr. Beutler first removed a damaged disk and bone spurs that were pinching
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Plaintiff's spine. Then he inserted a piece of donor bone into the area previously occupied by the
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damaged disk, securing it with a cervical plate screwed into Plaintiff's spine. The goal of this
procedure was for Plaintiff's remaining bone to grow gradually through and replace the donor bone
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resulting in a fusion. Dr. Beutler testified that recovery from this surgery takes some time. For a
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smoker, like Plaintiff, the process takes longer.
C. Post-Automobile Accident Diagnoses
1. Dr. Beutler
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Dr. Beutler examined Plaintiff two days after the automobile accident. The doctor inspected
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Plaintiff's post-automobile accident x-rays and conducted a physical examination. Dr. Beutler
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testified Plaintiff complained of significantly increased pain after the automobile accident. Based on
10
N.T. at 62.
11
N.T. at 64.
12
N.T. at 64.
13
N.T. at 65.
14
N.T. at 66.
15
N.T. at 67.
16
N.T. at 67.
17
N.T. at 67.
18
N.T. at 91.
19
N.T. at 73.
20
N.T. at 72-73.
21
N.T. at 73.
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Plaintiff's subjective complaints of pain, Dr. Beutler diagnosed him with two injuries caused by the
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automobile accident: a small loosening of the bone graft and a mild ligamentous injury, commonly
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referred to as whiplash. Notably, Dr. Beutler testified these diagnoses were based solely on Plaintiff's
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oral description of his pain. As the doctor explained to the jury, he saw no evidence for these injuries
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on Plaintiff's x-rays, but, “[w]hat I did see is him. And he was complaining of pain.”
2. Dr. Fultz
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At trial Defendant presented the video deposition testimony of Craig W. Fultz, M.D. On
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behalf of Defendant, Dr. Fultz conducted an independent medical examination of Plaintiff. Dr. Fultz's
examination consisted of a comprehensive review of Plaintiff's medical records from before and after
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the automobile accident coupled with a physical examination of Plaintiff conducted September 4,
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2008. Based on his review of the pre-automobile accident medical records, Dr. Fultz testified
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Plaintiff “had ongoing symptoms despite the surgery[,]” resulting from “a delayed healing rate.” In
arriving at this diagnosis, Dr. Fultz considered relevant Plaintiff's “history of smoking [because] that
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can delay healing in fusions.”
Following the post-automobile accident physical examination, Dr. Fultz described Plaintiff's
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physical condition as normal for a patient who had undergone the surgery described by Dr. Beutler.
The doctor further testified he was unable to discover any objective evidence of injuries caused by the
22
N.T. at 75.
23
N.T. at 79.
24
N.T. at 77-78.
25
N.T. at 75.
26
Notes of Video Deposition Testimony, October 30, 2008, at 4 (hereinafter N.D.T. at __).
27
N.D.T. at 9.
28
N.D.T. at 10.
29
N.D.T. at 16.
30
N.D.T. at 18.
31
N.D.T. at 20.
32
N.D.T. at 19.
33
N.D.T. at 28.
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automobile accident. In this regard, his testimony accords with that of Plaintiff's expert, Dr. Beutler.
Dr. Fultz also noted Plaintiff's subjective complaints of increased pain following the automobile
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accident. Again, Dr. Fultz's testimony in this regard is consistent with that of Dr. Beutler. However,
though based on similar observations, Dr. Fultz' ultimate diagnoses differed from those offered by Dr.
Beutler. Specifically, Dr. Fultz testified he did not believe Plaintiff sustained “any injury or loosening
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of [the] fusion site” caused by the automobile accident. Further, Dr. Fultz concluded Plaintiff's
subjective complaints of pain were not caused by the automobile accident but were instead causally
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related to the workplace injury and subsequent treatment.
3. Dr. Shaer
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At trial Defendant also offered the video deposition testimony of Andrew H. Shaer, M.D. Dr.
Shaer is a radiologist whose role was limited to reviewing and comparing radiographic studies taken of
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Plaintiff before and after the automobile accident. He did not physically examine Plaintiff and had no
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knowledge of his medical history. Relevant here, Dr. Shaer testified there was no radiographic
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evidence of injury after the automobile accident. He also concluded there was no evidence of any
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loosening of the fusion graft following the accident.
II. Discussion
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At the close of trial, this Court directed a verdict as to Defendant's negligence. After
deliberation, the jury returned a verdict finding Defendant's negligence was not a factual cause of any
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N.D.T. at 33.
35
N.D.T. at 24-25.
36
N.D.T. at 32.
37
N.D.T. at 34.
38
Notes of Video Deposition Testimony, November 11, 2009, at 4 (hereinafter N.V.T. at __).
39
N.V.T. at 13.
40
N.V.T. at 14.
41
N.V.T. at 16.
42
N.V.T. at 17.
43
N.T. at 167.
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harm to the Plaintiff. Subsequently, Plaintiff filed post-trial motions seeking a new trial. This Court
denied the motions. On appeal, Plaintiff raises three issues. Briefly paraphrased, Plaintiff asserts, (1)
the jury's verdict was against the weight of the evidence; (2) this Court erred by not precluding
evidence regarding Plaintiff's smoking habit; and (3) this Court erred by not precluding the introduction
of Dr. Shaer's testimony as cumulative. For the following reasons, this Court maintains there was no
error.
A. Jury Verdict Against the Weight of the Evidence
Plaintiff argues he is entitled to a new trial as a matter of law because the jury's verdict of no
causation is against the weight of the evidence. Specifically, Plaintiff asserts Defendant's negligence
was legally established and medical experts on both sides testified that Plaintiff suffered an injury as a
result of the automobile accident. As such, Plaintiff asserts that the jury's verdict cannot stand as a
matter of law.
“In reviewing an order denying a motion for a new trial, an appellate court should not set aside
a trial court's decision unless the trial court's decision was an abuse of discretion.” Davis v. Mullen,
565 Pa. 386, 390, 773 A.2d 764, 766 (2001) (citation omitted). “A new trial should be granted only
where the verdict is so contrary to the evidence as to shock one's sense of justice [and not] where the
evidence is conflicting [or] where the trial judge would have reached a different conclusion on the same
facts.” Henery v. Shadle, 661 A.2d 439, 441, appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995).
Plaintiff contends the jury verdict in the instant matter presents such a case. In support, he cites
Lemon v. Ernst, 822 A.2d 768 (Pa. Super. 2003) and Andrews v. Jackson, 800 A.2d 959 (Pa. Super.
2003), where the Superior Court held, “[w]here 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
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N.T. at 171.
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injuries.” Andrews, 800 A.2d at 962 (emphasis added). Lemon and Andrews notwithstanding,
Plaintiff's argument is premised on a mischaracterization of the testimony of Defendant's expert. As
such, those cases are inapplicable and Plaintiff's argument fails.
One cannot lose sight of the fact that the expert medical testimony only plays a role in this case
after an analysis of the vehicle accident itself. There is no question there was a vehicle accident and the
Court properly directed the jury to find that the Defendant was negligent. But one cannot overlook the
fact that this jury heard testimony from the Plaintiff himself that he was able, on his own, to exit his
damaged vehicle and that when taken to the hospital and examined, he was immediately released
without any further treatment. The logical conclusion of the testimony is clear. Namely, the
Defendant’s negligence was not a factual cause of any harm to the Plaintiff. Against this factual
backdrop, a fair reading of the medical testimony shows that the experts did not agree that the Plaintiff
suffered injury as a result of this accident.
As is so often the case, the question of pain and soft tissue injury is extremely subjective.
There is no objective test to determine whether or not a person is suffering pain. Our Supreme Court
characterizes this as a question of credibility, reasoning “juries must believe that Plaintiffs suffered pain
before they compensate for that pain.” Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d 764, 769 (2001).
Obviously, sometimes when one sees a broken bone, massive cuts or burns, for example, one can
circumstantially prove the existence of pain. Where there are no such objective injuries proved, the
question of whether or not someone is suffering pain is truly a question for the fact finder. Id. In
conducting this inquiry, the jury is not “obliged to believe that every injury causes pain or the pain
alleged.” Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988).
By and large all doctors, being educated and polite individuals rarely examine an individual and
simply state they are lying about their pain. They use terms in which they state patients made
“subjective complaints” and that their pain was “subjectively worse.” As defined in the Webster
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Dictionary, the word subjective means “of, or arising within oneself or mind in contrast to what is
outside.” In other words, “[s]ubjective injuries, [such as] pain and suffering are those which depend on
the accuracy of an injured person's complaints to his examining physician rather than on objective
findings such as X-rays or involuntary muscle spasms.” Sigismondi v. DeVentis Const. Co., 205 A.2d
47 (Pa. Super. 1964) (emphasis added). In short, whether or not Plaintiff actually suffered pain as a
result of this accident is dependent upon whether or not you believe Plaintiff. As with the testimony in
any case, whether lay or expert, the fact finder is free to believe all, part, or none of the testimony.
Here, Defendant’s physician did not testify that the Plaintiff was a liar; however, his conclusion that
Plaintiff suffered no injury caused by the automobile accident presents an implicit credibility
determination regarding Plaintiff’s subjective complaints of pain. The jury’s verdict finding no
causation reflects the same credibility determination.
The Plaintiff requested a directed verdict on causation. At trial, the Court having heard the
testimony of the Plaintiff and all of the medical expert witnesses genuinely believed that there was an
issue of fact to be resolved by the jury as to whether the automobile accident caused any injury to the
Plaintiff. This Court is still of that belief. The Defendant’s expert, Dr. Craig Fultz’s medical opinion
was that the pain indicated by the Plaintiff was related to the residuals from his work related injury…
the patient’s ongoing residual systems are casually related to the work-related injuries, subsequent
treatments, and that they were not caused by the automobile accident on May 1, 2005. (Deposition of
Dr. Craig Fultz, p. 34). Dr. Fultz did, however, state on cross-examination that Plaintiff may have
suffered “possible strain,” left hip pain, and low back pain as a result of the motor vehicle accident.
Thus, applying the standard rule of evaluating expert testimony, the jury was free to believe all, part, or
none of Dr. Fultz’s testimony. It was well within the prerogative of the jury, in light of the Plaintiff’s
testimony that he exited his vehicle on his own, received no treatment at Holy Spirit Hospital and was
immediately discharged, to give less credibility to Dr. Fultz’s testimony that the Plaintiff may have
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suffered possible strain, left hip pain, and low back pain as a result of the motor vehicle accident.
In reviewing some of the recent cases applying the rule from Kraner v. Kraner, 841 A.2d 141
(Pa. Super. 2004), the Court notes the continued vitality of Kraner, Lemon, Andrews, and their progeny.
Thus, it may be well-settled that a “jury must find [an] accident was a substantial cause of at least some
injury, where both parties’ medical experts agree the accident caused some injury.” Kraner, 841 at 145
(emphasis added). However, the Court also notes that “whether a Defendant caused the Plaintiff's
injuries and whether the Plaintiff suffered compensable pain are issues peculiarly within the province
of the jury to determine. Nunemacher v. Sensinger 77 Pa. D. & C. 4th 146, 168 (C.P. Carbon 2005).
Thus, because Kraner, Lemon, and Andrews may encroach upon the jury’s prerogative to act as fact-
finder, these cases must be strictly construed to apply only where “both parties’ medical experts agree.”
Kraner, 841 at 145. The instant matter simply does not seem to present such a case.
A review of the complete testimony of doctors Fultz and Beutler, viewed in the light most
favorable to Defendant as verdict-winner, reveals material disagreement on the issue of causation. As
previously summarized, Plaintiff's expert, Dr. Beutler, concluded the automobile accident caused a
loosening of Plaintiff's bone graft and whiplash resulting in significantly increased pain. Dr. Fultz's
disagreement with Dr. Beutler's diagnosis regarding causation is clearly demonstrated by the following
testimony, “it is my opinion that [Plaintiff's] ongoing residual symptoms are causally related to the
work-related injuries, subsequent treatments, and ongoing symptoms [rather] than the motor vehicle
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accident.” Further, Dr. Fultz determined Plaintiff suffered no “injury or loosening of [the] fusion site”
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caused by the automobile accident. Dr. Fultz's expert opinion regarding whether the automobile
accident caused Plaintiff's injuries clearly conflicts with Dr. Beutler's opinion.
In short, despite similarities in their descriptions of Plaintiff's condition, Doctors Fultz and
45
N.D.T. at 34 (emphasis added).
46
N.D.T. at 32 (emphasis added).
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Beutler arrived at materially different conclusions regarding the ultimate cause of Plaintiff's injuries.
Dr. Beutler believed the automobile accident caused Plaintiff's injuries while Dr. Fultz concluded they
were the lingering effects of the workplace injury and subsequent surgery. As such, the question of
causation was contested and properly before the jury as the arbiter of the evidence. Accordingly, the
jury’s verdict finding Defendant’s negligence caused no injury to Plaintiff is not against the weight of
the evidence. Henery, 661 A.2d at 441. Again, having heard all of the testimony in this case and the
arguments made by counsel, this Court cannot say that the jury’s verdict was contrary to the weight of
the evidence to such a degree that it shocks one’s collective sense of justice.
If this case were remanded for a new trial on damages alone, it would appear to this Court that
the verdict slip would begin with a question using the language from Kraner as follows:
Do you find that the Plaintiff’s injuries caused by the accident
were incidental or non-compensable?
Yes No
If you answered this question Yes, the Plaintiff cannot recover and
you are directed to return to the Courtroom; If you answered this
question No, you will proceed to the next question to determine
the amount of damages that are compensable.
Kraner v. Kraner, 841 A.2d 141 at 145 (Pa.Super. 2004).
B. Evidentiary Issues
If the case is remanded for new trial on damages, then the admissibility of the Plaintiff’s
smoking habit and the testimony of radiologist, Dr. Shaer, regarding his radiological examination of the
plate in the Plaintiff’s neck would appear very relevant and necessary on the issue of damages. The
Court will now address these evidentiary questions.
1. Admissibility of Evidence of Plaintiff's Smoking Habit
Plaintiff argues this Court erred by denying his motion in limine to preclude evidence of
Plaintiff's smoking habit. Plaintiff argues admission of such evidence was an abuse of discretion
10
because both parties' medical experts testified that Plaintiff's smoking played no causal role in the
injuries he suffered during the automobile accident. Accordingly, Plaintiff maintains that admission of
this evidence unduly prejudiced the jury against Plaintiff.
Appellate review of this Court’s ruling on a motion in limine is governed by an abuse of
discretion standard. Turner v. Valley Housing Development Corp., 972 A.2d 531, 535 (Pa. Super.
2009). Questions concerning the admissibility of evidence are within this Court’s sound discretion and
these rulings “will not be disturbed on appeal absent an abuse of discretion.” Id.
This Court found the relevance of Plaintiff’s smoking habit outweighed any potential prejudicial
effect. See Pa. R.C.P. No. 403. Throughout the instant litigation, Defendant conceded his negligence.
What Defendant did not concede was that his negligence caused Plaintiff’s injuries. Instead, Defendant
consistently maintained Plaintiff’s injuries stemmed from the unresolved workplace injury and the
lingering effects of surgery. Experts on both sides testified smoking delays the healing process
following the surgery undergone by Plaintiff as a result of his workplace injury. As such, the evidence
was probative to the key factual determination at issue during trial. Accordingly, this Court did not
abuse its discretion by denying Plaintiff’s motion in limine on this issue.
2. Admissibility of Dr. Shaer’s Testimony
Plaintiff’s final argument challenges this Court’s admission of the expert testimony of Dr. Shaer.
Plaintiff assigns error to this Court's refusal to preclude Dr. Shaer’s testimony as needlessly cumulative.
As previously discussed, this Court enjoys broad discretion to determine the admissibility of evidence.
Id. Relevant here, the Rules direct this Court to exclude relevant evidence if its probative value is
outweighed by the “considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Pa. R.C.P. No. 403.
This Court concluded Dr. Shaer’s testimony was not merely cumulative of the testimony
previously presented by Dr. Fultz. This Court acknowledges both doctors arrived at similar
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conclusions regarding Plaintiff's injuries. However, each doctor arrived at his opinion based on
different information and from the perspective of their differing specialties. Unlike Dr. Fultz, Dr. Shaer
is a radiologist and his expert opinion was based solely on his review of the Plaintiff's relevant
radiological studies done before and after the motor vehicle accident. Dr. Shaer concluded that the
cervical fusion even after the automobile accident was intact, that there had been no loosening problem
with the hardware, and that the graft was satisfactory. Based on this distinction, this Court concluded
Dr. Shaer's testimony was more relevant than cumulative. This determination did not constitute an
abuse of discretion.
III. Conclusion
Based on the foregoing, this Court respectfully submits that the Superior Court should affirm
the jury's verdict and this Court's denial of Plaintiff's post-trial motions in all respects.
By the Court,
M. L. Ebert, Jr., J.
Richard T. Tomasko, Esquire
Attorney for Plaintiff
Kevin Rauch, Esquire
Attorney for Defendant
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