HomeMy WebLinkAbout99-5708 CIVILDONALD NELSON and :
JUDY NELSON, his wife,:
Plaintiffs
Vo
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROBERT J. BEAUDRY,
JR., D.M.D., and ROBERT:
J. BEAUDRY, JR., D.M.D,:
P.C., t/d/b/a BEAUDRY
ORAL SURGERY
Defendant
NO. 99-5708 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
BEFORE HOFFER, P.J., HESS and OLER, JJ.
OLER, J., March 1, 2002.
In this dental malpractice case, Plaintiffs have appealed to the Pennsylvania
Superior Court from an order denying their motion for post-trial relief.~ The
motion had requested relief in the form of a new trial on the issue of damages)
Plaintiffs' action for professional negligence was premised upon a delay of
several hours on the part of an oral surgeon in responding to a patient's complaint
of bleeding following a tooth extraction. A jury found that the oral surgeon was
negligent in not responding more promptly, that his negligence was a substantial
factor in causing harm to the patient, that compensatory damages in the amount of
$20,000.00 should be awarded to the patient, and that no compensatory damages
for loss of consortium should be awarded to the patient's spouse) Delay damages
in the amount of $2,321.37 were thereafter added to the verdict)
~ Plaintiffs filed a praecipe for entry of judgment on the jury's verdict prior to filing the notice of
appeal from the interlocutory order. See Char/ton v. Toyota Indust. Equil~., 714 A.2d 1043, 1044
n. 1 (Pa. Super. Ct. 1998) (noting that appeal does not lie from order denying post-trial motion but
entertaining appeal where judgment entered, notwithstanding appellant's misdesignation of order
appealed from).
: Plaintiffs' Motion for Post-Trial Relief, paragraph 20.
~ Jury Verdict Slip, November 9, 2001.
4 Order of Court, December 17, 2001.
Plaintiffs' motion for post-trial relief sought a new trial on the issue of
damages, averring in pertinent part as follows:
5. Plaintiffs believe, and therefore aver, that the jury's
compensatory damages award to Donald Nelson is
unreasonably low because of a number of significant errors of
law committed by the Trial Court that limited the damages
claims that could be proven by Plaintiffs, and the evidence that
could be introduced by Plaintiffs in support of the damages
issues.
6. One such error committed by the Trial Court was Judge
Oler's Order on November 5, 2001, upon the Defendants'
Third Motion in Limine, precluding Plaintiffs from proving or
claiming damages related to the risk of blood-borne diseases
from the blood transfusions necessitated by Dr. Beaudry's
negligence, or the Plaintiffs' fear thereof.
7. Judge Oler's ruling on Defendants' Third Motion in
Limine prohibited Plaintiffs from testifying about this item of
damages, or from introducing the deposition testimony of
William Pompella, M.D. about the risks accompanying a blood
transfusion.
8. Before the ruling on the Motion, Plaintiffs had submitted
a Brief opposing the Defendants' Third Motion in Limine for
the Court's consideration, which has since been filed with the
Prothonotary. [~]
9. The second error of law committed by the trial (sic)
occurred during the testimony of Judy Nelson when she was
prohibited, upon the objection of the Defendant, from
testifying further about a transfer from Holy Spirit Hospital to
Dr. Beaudry's office via the family's private vehicle at the
insistence of Dr. Beaudry.
10. As Mrs. Nelson had testified before the Defendant's
objection, the transfer was extremely uncomfortable for Mr.
Nelson as it occurred during his second day of the five-day
hospitalization, and was done without the expected comforts of
an ambulance--instead, the family was required to transport
5 Although briefs are considered by the court, they are not accepted for filing by the Cumberland
County Prothonotary, are not part of the docket record, and may not be used to supplement the
record factually. See Commonwealth v. Bowers, 245 Pa. Super. 214, 223, 369 A.2d 370, 375
(1976).
2
the patient in an un-air-conditioned private vehicle that added
to Mr. Nelson's pain and suffering claim resulting from the
hospitalization required by Dr. Beaudry's negligence.
11. Mrs. Nelson was not permitted to testify fully to this
element of Mr. Nelson's pain and suffering claim, and in fact
another witness scheduled to testify for the Nelsons, Gaye
Nelson (Mr. Nelson's mother), was not called by the Plaintiffs
because her expected testimony about the uncomfortable
transfer suffered by Don had been preempted by the Court's
ruling during Mrs. Nelson's testimony.
12. The third error of law pertaining to Mr. Nelson's
damages claim occurred during the testimony of Foster
Burkheimer on Wednesday, November 7, 2001.
13. Called as a witness by Plaintiffs, Mr. Burkheimer had
visited Mr. Nelson in the hospital following Dr. Beaudry's
abandonment, and one of the purposes of his testimony was to
elucidate Mr. Nelson's pain and suffering claim by testifying to
Mr. Nelson's statements of his then existing mental, emotional
and physical condition while in the hospital.
14. Mr. Burkheimer's testimony about Mr. Nelson's
statements of his then existing mental, emotional or physical
condition was halted by Judge Oler who, without any objection
by defense counsel, ordered the witness that he could not
testify to such statements as they were, in His Honor's opinion,
hearsay.
15. The Court's direction to Mr. Burkheimer was,
however, error as such statements are exceptions to the
Hearsay Rule under P.R.E. 803(3).
16. Had there been an objection to this testimony by
defense counsel, Plaintiffs certainly would have placed the
grounds on record for opposing the objection. However, Judge
Oler's unsolicited ruling on the admissibility of this witness'
testimony terminated any opportunity for Plaintiffs to voice
their grounds supporting the admissibility of such testimony.
This unprecedented judicial activism on The Honorable Trial
Court's part constitutes cause to permit Plaintiffs to specify the
inappropriateness of such an instruction to the witness in Post-
Trial Motions.
17. The fourth error of law occurred when the jury returned
with a question about damages on Friday, November 9, 2001.
3
At that time, the Court charged the jury above and beyond
what counsel had agreed to in chambers, and instructed the jury
in a manner that was inappropriate and prejudicial to Plaintiffs.
18. Plaintiffs further submit that the jury's award of $0 to
Judy Nelson for her loss of consortium claim was against the
great weight of the evidence, as her own testimony about her
losses was not challenged by Defendant through effective
cross-examination or the introduction of independent evidence.
19. Furthermore, the award of $0 to Mrs. Nelson is
inconsistent with the jury's verdict awarding compensation to
Mr. Nelson.
20. Because the errors of law committed by the Trial
Court, and the jury's verdict on the loss of consortium claim,
went only to the issue of damages at trial, Plaintiffs
respectfully request a new trial limited to the issue of
damages.6
Following the submission of briefs by the parties on Plaintiffs' motion for
post-trial relief, the matter was argued before a court en banc. The motion was
denied by an order of the court en banc dated January 3, 2002.
Plaintiffs filed a praecipe for entry of judgment on January 9, 2001.7 On
January 31, 2002, Plaintiffs filed a notice of appeal "from the order entered in this
matter on the third day of January, 2002.''8
This opinion in support of the court's denial of Plaintiffs' motion for post-
trial relief is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
On Friday, September 18, 1998,9 Plaintiff Donald Nelson underwent oral
surgery in the office of Defendant Robert J. Beaudry, Jr., D.M.D., for the
6 Plaintiffs' Motion for Post-Trial Relief, paragraphs 5-20, filed November 19, 2001.
7 Plaintiffs' Praecipe for Entry of Judgment Pursuant to Pa.R.C.P. 227.4(2) and Pa.R.A.P. 30 l(d),
filed January 9, 2002.
8 Plaintiffs' Notice of Appeal, filed January 31, 2002; see supra note 1.
9 N.T. 290, 294, Trial, November 6-9, 2001 (hereinafter N.T. ~ Trial).
4
extraction of twelve teeth,l° The procedure commenced at approximately 10:00
a.m. and lasted about an hour.il No issue of negligence exists in this case as to
the performance of the surgery itself. 12
Mr. Nelson was told to expect pain and bleeding following the surgery.
He went home at about 1:00 p.m. on the day of the surgery.TM At some point he
and his spouse, Plaintiff Judy Nelson, became concerned that the bleeding was not
abating as it should.15
According to testimony presented by Plaintiffs, Ms. Nelson, using an
emergency number provided to her, telephoned Dr. Beaudry's residence at
approximately 9:30 p.m. that evening to express her concerns about the bleeding.
Ms. Nelson testified that she reached an answering machine and left a message
asking Dr. Beaudry to contact her.16 When her call was not returned by midnight,
Ms. Nelson called again and left another message asking whether it would be
advisable to take Mr. Nelson to the emergency room.
At about 1:00 o'clock in the morning, Plaintiffs went to the emergency
room of the Holy Spirit Hospital.la According to the testimony of the emergency
room physician who treated Mr. Nelson, after finding that Mr. Nelson had
sustained "acute blood loss," intravenous treatment was ordered. 19 Mr. Nelson was
also given pain medication and gauze pads for his mouth in an effort to stem the
l0 N.T. 122, 146, Trial. Plaintiff's teeth had deterioriated over a period of years due to an absence
of dental work. N.T. 168-291, Trial.
~ N.T. 82, Trial.
~2 N.T. 28-29, Trial.
~s N.T. 180-83, 365, Trial.
14 N.T. 14-15, Trial.
~5 N.T. 15-20, Trial.
16 N.T. 18-20, Trial.
~7 N.T. 18-20, Trial.
~8 N.T. 21-22, Trial.
19 Plaintiff's Exhibit 2-A at 20, Trial, November 6-9,
Trial).
2001 (hereinafter Plaintiff's Exhibit __,
5
bleeding. When the physician found that the gauze pads failed to stop the
bleeding,2° he contacted the on-call oral surgeon for Holy Spirit Hospital for
assistance.2~ The surgeon refused to come in because of unidentified conflicts
between himself and Dr. Beaudry.~ However, in response to the emergency room
physician's request for an opinion on a course of treatment, the surgeon
recommended placing "absorbent gauze or foam" into Mr. Nelson's mouth to stem
the bleeding.~3
Defendant Beaudry, according to his and his spouse's testimony, was first
alerted to Mr. Nelson's situation at about 4:15 a.m. when Dr. Beaudry's wife
received a call from Holy Spirit Hospital and woke up Dr. Beaudry, who had been
sleeping on a couch on the lower floor of their home.24 Dr. Beaudry got up and
proceeded to the emergency room, arriving at approximately 5:00 a.m.25 The
bleeding had been substantially stanched by Dr. Paul's treatment, and Dr. Beaudry
resolved the matter by the administration of one stitch.26
Mr. Nelson was admitted to the hospital, where he remained for five days.27
Part of his stay was at least arguably attributable to an apparently spurious test
result indicating that he was suffering from diabetes.28 While in the hospital, he
20 Plaintiff's Exhibit 2-A at 18, Trial. The physician testified that the bleeding from the right side
of the mouth had stopped but that the bleeding from the left side continued. Plaintiff's Exhibit 2-
A at 18, Trial.
2~ Plaintiff's Exhibit 2-A at 18-19, Trial. Holy Spirit Hospital had arrangements with several oral
surgeons, one of whom was Dr. Beaudry, who agreed to be "on call" for several days every
month in case their services were needed in the emergency room. N.T. 191, Trial. Dr. Beaudry
was not the on-call oral surgeon for the period in which the events at issue in this case occurred.
N.T. 191, Trial.
22 Plaintiff's Exhibit 2-A at 20-22, Trial.
23 Plaintiff's Exhibit 2-A at 21-23, Trial.
24 N.T. 135-36, 341-42, Trial.
25 N.T. 136-37, Trial.
26 N.T. 25, 146-47, Trial.
27 N.T. 25, 49, 151-52, 273-74, Trial.
28 N.T. 281-82, Trial.
6
received two blood transfusions.29 He lost $340.00 in wages while hospitalized,3°
and incurred medical expenses of $6,734.33.3~ Ms. Nelson spent most of her time
at the hospital with him.32
His recovery from the oral surgery was otherwise uneventful.33 He is
presently pleased with the condition of his mouth.34 Plaintiffs initiated a
professional negligence action against Defendant Beaudry and his employer on
September 17, 1999.35 At trial, the theory pursued by Plaintiffs was that Dr.
36
Beaudry had abandoned his patient following the surgery.
Prior to trial, Plaintiffs presented one motion in limine37 and Defendants
presented four motions in limine.38 One of Defendants' motions in limine sought,
inter alia, to preclude Plaintiffs from introducing evidence as to mental anguish on
the part of Mr. Nelson arising out of a fear that he would contract a disease such as
Hepatitis C from the units of blood received at the hospital.39
In response to the motion, the court conducted a proceeding prior to trial at
which counsel placed their positions on the motion on the record.4° Plaintiffs'
counsel indicated that Plaintiffs did not intend to present evidence that Mr. Nelson
29 N.T. 143-50, Trial.
30 N.T. 303-04, Trial.
3~ N.T. 35, Trial.
32 N.T. 25-26, Trial.
33 N.T. 25-26, 49-50, Trial.
34 N.T. 49-50, Trial.
35 Plaintiffs' Complaint, filed September 17, 1999.
36 S~'¢ N.T. 30, 92, Trial.
37 Plaintiff's Motion in Limine To Preclude Evidence of Alcohol and Drug Abuse, filed October
31, 2001.
38 Defendants' First Motion in Limine, filed November 5, 2001; Defendants' Second Motion in
Limine, filed November 5, 2001; Defendants' Third Motion in Limine, filed November 5, 2001;
Defendants' Fourth Motion in Limine, filed November 5,2001.
39 Defendants' Third Motion in Limine, filed November 5,2001.
40 N.T. 2-19, Pretrial Proceeding, November 5,2001 (hereinafter N.T. __, Pretrial Proceeding).
7
contracted Hepatitis C or another blood-borne disease from the transfusions4~ or
that the blood administered was known to have been tainted, but did desire to
present evidence of emotional distress resulting from his fear of contracting such a
disease.42 At the conclusion of the presentations of counsel, the court entered an
order granting Defendants' motion in limine to preclude the introduction of
evidence of such fear.43
At trial, during the direct examination of Plaintiff Judy Nelson, she testified
at some length about an event which occurred two days prior to his discharge from
the hospital.44 The gist of her testimony in this regard was that, at Dr. Beaudry's
request, she had transported Mr. Nelson from the hospital to the dental office in
her private vehicle for purposes of utilization of a full-mouth x-ray apparatus, that
the trip was uncomfortable for Mr. Nelson, that "if [she] had been thinking clear,
[she] probably wouldn't have done what [she] did," and that she did not know why
an ambulance had not been utilized.45
Defendants' counsel objected to further testimony from this lay witness as
to the propriety of the mode of transportation for the office visit, noting inter alia
that the report of Plaintiffs' dental expert indicated no such basis for the opinions
adverse to Dr. Beaudry expressed in it.46 Plaintiffs' counsel responded that "we
would like to point out the unorthodox way that the patient was directed to get to
4~ Plaintiffs' counsel advised that Mr. Nelson did in fact have Hepatitis C, but that Plaintiffs had
chosen not to advance any claim that the condition had resulted from the transfusions because
they did not wish to delay the trial to pursue the issue. N.T. 7-8, Pretrial Proceeding. It may be
noted that the court had granted a motion in limine on behalf of Plaintiffs to preclude Defendants
from introducing evidence of a history of drug or alcohol abuse on the part of Mr. Nelson. Order
of Court, November 5,2001; see N.T. 3-5, Pretrial Proceeding.
4: N.T. 7-10, Pretrial Proceeding.
43 Order of Court, November 5,2001.
44 N.T. 26-28, Trial.
45 N.T. 26-28, Trial.
46 N.T. 29-30, Trial.
Dr. Beaudry's of~ce.''47 In sustaining Defendants' objection, the court advised
Plaintiffs' counsel that "[y]ou can certainly bring out the facts that the
transportation occurred, as you have done; but I think to the extent that you are
going to go forward and attempt to bring out through this witness that there was
something unorthodox about that [i.e., the mode of transportation], that would not
be permissible.''48
Also during the trial, Plaintiffs presented the testimony of Foster Martin
Berkheimer, owner of the mobile home park in which Plaintiffs lived.49 He
testified as to Mr. Nelson's good citizenship, his skill at pitching horseshoes, and
his satisfaction with his job as a resource coordinator,so
Mr. Berkheimer described a visit to Mr. Nelson in the hospital following
the oral surgery:
He looked very, very weak, and he did not have the normal
complexion that he usually had. His eyes were dark and sunk.
His jaws looked more like a chipmunk, and he tried to talk to
both of us which we thought was unnecessary, but that was
Don's response, he wanted us to share in what was going on.
At that point it was very hard to really understand what he
was trying to say. ! knew he was very uncomfortable. That is
about the best ! can explain it. There was a black and blue on
the neck and the jaw that ! can recall, maybe it was a small
thing, ! don't know what side it was. ! just know from
memory that he did not look good, he looked very ill to me.
His constitution seemed to be defeated. ! think ! recall trying
to figure out what he was trying to say. ! am in here like this,
and all I wanted to do was to have some teeth pulled. And I
will make that statement that I don't think, but he did say
that.s~
47 N.T. 28, Trial.
48 N.T. 31-32, Trial.
49 N.T. 221-22, Trial.
50 N.T. 221-23, 309, Trial. In his position as resource coordinator, Mr. Nelson testified that his
duties included office administration, maintenance of a fleet of company-owned vehicles, and
transportation of company documents and personnel.
5~ N.T. 224-25, Trial.
9
Defendants' counsel interposed an objection to statements made to Mr.
Berkheimer by Mr. Beaudry on grounds of hearsay,s2 Plaintiffs' counsel
responded that she was eliciting a "statement of physical condition, also goes to
Don's state of mind.''s3 The direct examination continued as follows:
Q Mr. Berkheimer, you were testifying as to what
comments Don had made to you while he was in the hospital.
Could you go back and start again, please.
A Well, simply my recollection of the statement that
he was trying to make to me is how could this be that I was just
getting some teeth pulled and I end up in this condition,s4
At this point, the court stated as follows:
THE COURT: That is a little bit different from a
present sense impression. You can relate what comments [Mr.
Nelson] might have made about pain, things of that sort, how
he felt, but not more general comments about his treatment and
so on. Is that satisfactory, Mr. Barnett?
MS. BARNETT: Your Honor, Mr. Nelson has a claim
for pain and suffering in the hospital. The statements as to his
emotional state of mind, as well as his physical state of body
are relevant to that claim, and I would ask that his statements in
the hospital which are relevant to those issues be admissible, be
admitted.
THE COURT: But his question as to how he could be
in this condition, that is not a sensory impression, that is more
historical. So to that extent the objection is sustained.
MS. BARNETT: Okay.ss
Finally, during its deliberations the jury asked several questions, the final
one of which was this:
Do we have to reach a dollar amount, and what happens if
we can't agree upon it. Will Plaintiff get nothing[?]s6
52 N.T. 226, Trial.
53 N.T. 226, Trial.
54 N.T. 226, Trial.
55 N.T. 226-27, Trial.
56 N.T. 433, Trial.
10
The view of both counsel was that an inability of the jury to reach a verdict
on damages (if it found in favor of Plaintiffs on the issues of negligence and
causation) should result in a mistrial on all issues,s7 (Obviously, if it found in
favor of Defendants on either the issue of negligence or the issue of causation, the
jury's inability to agree upon a damage figure should not result in a mistrial.) The
question of the jury did not state whether it had reached verdicts on the issues of
negligence and causation.
Prior to providing a response to the question to the jury, the court
reconvened outside the jury's presence, stating as follows:
The Court has met in chambers with counsel and
understands that each counsel has requested the Court to charge
the jury that in the event that it is unable to reach a verdict as to
all questions on the verdict slip and each juror feels that the
jury is hopelessly deadlocked and that further deliberations
would not enable the jury to reach a verdict on all questions,
the Court would declare a mistrial and the case could be tried
before another jury and counsel have asked that the jury be so
instructed. Is that a satisfactory instruction to both counsel?
MS. BARNETT:
MR. KANTNER:
worded, Your Honor?
THE COURT:
MR. KANTNER:
Yes, it is.
Is that essentially how it will be
I will do my best to repeat that.
Our discussion in chambers, my
request to the Court making clear whatever means to see fit that
this particular jury will not be retrying the case either now or at
any time.
THE COURT: Yes, if I forget to say that, please
come forward and ! will emphasize that. Please bring the jury
in.sa
When the jury returned, the following instruction was given:
s7 N.T. 433-34, Trial. Whether this proposition was correct or not, it was advocated by both
counsel and the court instructed the jury accordingly.
s8 N.T. 432, Trial.
11
The Court has met in chambers with counsel and counsel
have both asked that the Court give this instruction in response
to the question, and before I do, I might ask counsel whether
counsel are also in agreement that I should give the instruction
that we had also discussed about the jurors consulting with
each other to reach a verdict?
MS. BARNETT:
MR. KANTNER:
THE COURT:
Yes, Your Honor.
I agree.
All right. The answer to your question
which both counsel have agreed that I give is that in order to
reach a verdict in the case, the jury must be able, consistent
with the instructions which I gave you, to answer all of the
questions on the verdict slip.
If the jury is unable to answer all of the questions on the
verdict slip, that is to render verdicts as to each question, and if
each juror feels that the jury is hopelessly deadlocked on at
least one of the questions and that further deliberations would
not enable the jury to reach a verdict, then the Court would
declare a mistrial because the jury is hopelessly deadlocked. In
that event, the case could be retried, but, of course, it would be
in front of a different jury, you wouldn't have to come back
and hear the whole case again. Let me give you a sort of
general instruction on reaching verdicts or attempting to.
You have the duty to consult with each other and to
deliberate with the view to reaching an agreement if it can be
done without doing any violence to your individual judgment.
Each of you must decide the case for himself or herself, but
only after there has been impartial consideration with your
fellow jurors. In the course of deliberations, each juror should
not hesitate to examine his or her own views and change his or
her opinion if convinced it is erroneous; however, no juror
should surrender an honest belief as to the weight or effect of
the evidence solely because of the opinion of his or her fellow
jurors or for the mere purpose of returning a verdict.
I had indicated that the jury has to be able to reach a
verdict as to each question. Technically, of course, that is not
entirely correct, because a jury could reach a verdict of no
negligence, and then obviously, you don't have to decide the
other two questions. So I don't want to mislead you when I say
you have to answer all three questions; but to reach a verdict if
12
damages were to be awarded, you would have to answer all
questions, including the damage question. 59
At the conclusion of the instruction, the court inquired of both counsel
whether they had any suggestions, objections or corrections to the instruction as
given.® Each responded negatively.6~ Following trial, in the brief in support of
Plaintiffs' motion for post-trial relief, Plaintiffs' counsel advanced the position
that Plaintiffs were entitled to a new trial on the issue of damages because the
instruction invited the jury to reconsider verdicts in favor of her clients on the
issues of negligence and causation.62
As previously noted, the jury returned a verdict finding that the oral
surgeon was negligent, that his negligence was a substantial factor in causing harm
to the patient, that compensatory damages in the amount of $20,000.00 should be
awarded Mr. Beaudry,63 and that no compensatory damages for loss of consortium
should be awarded to Ms. Beaudry.64 Plaintiffs filed a motion for post-trial relief
requesting a new trial as to damages. From the en banc court's denial of
Plaintiffs' motion, Plaintiffs have filed an appeal to the Superior Court.
DISCUSSION
Fear of contracting blood-borne disease from tramfusion as element of
damages in personal injury action. In the context of recovery of damages for
emotional distress resulting from fear of contracting a disease from exposure to
another person's blood, the Pennsylvania Superior Court has stated as follows:
59 N.T. 433-34, Trial (emphasis added).
60 N.T. 434-35, Trial.
61 N.T. 435, Trial.
62 Plaintiffs' Brief in Support of Motion for Post-Trial Relief, at 18-20. The brief of Plaintiffs'
counsel also argued that "the Court's suggestion to start awarding damages 'at $1.00' was highly
prejudicial to Plaintiffs." Id. at 20. Nothing in the court's instruction was remotely susceptible of
such a construction.
63 This figure was increased to $2,321.37 by way of delay damages. Order of Court, December
17, 2001.
64 Jury Verdict Slip, November 9, 2001.
13
With respect to establishing a causal nexus, the majority of
jurisdictions addressing the issue impose an objective standard
for determining proximate cause of emotional distress arising
from the fear of contracting AIDS. This objective standard
requires proof of actual exposure to HIV. See Brzoska v.
Olson, 668 A.2d 1355, 1363 (Del. 1995) (stating that "without
actual exposure to HIV, the risk of its transmission is so minute
that any fear of contracting AIDS is per se unreasonable."); see
also Wendy Allison Reese, Tort Law Actual Exposure or
Possible Exposure?: The Aids Phobia Debate Are Courts
Opening the Litigation Floodgates or Illustrating Judicial
Proscription? 22 Am. J. Trial Advoc. 495, 502 (1998)
(collecting cases). Actual exposure requires more than mere
presence of an infected specimen. Rather, the existence of a
scientifically accepted method of transmission of the virus
must coalesce with the presence of an HIV positive specimen.
See e.g., Pendergist v. Pendergrass, 961 S.W.2d 919, 926 (Mo.
Ct. App. 1998). We find Pennsylvania caselaw is consistent
with the latter combined approach.
Shumosky v. Lutheran WelJbre Services of Northeastern Pa, Inc., No. 2112 MDA
2000, 2001 WL 11160978, at *4 (Pa. Super. Ct. October 3, 2001) (footnote
omitted).
This approach is consistent with Pennsylvania's adoption of the "two
disease" rule, one implication of which is that fear based upon the risk of
developing a second, potential disease is not compensable in litigation arising out
of the contraction of the first disease. See Giffear v. Johns-Manville Corp., 429
Pa. Super. 327, 342-43, 632 A.2d 880, 888-89 (1993), aff'd sub nom., Simmons v.
Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).65
One obvious consideration involved in this approach is the desirability of
avoiding damage verdicts based on speculation.66 A second is the degree to which
every personal injury trial in which the plaintiff received a blood transfusion
65 The "two-disease rule" has been extended beyond its initial application to asbestos cases. Klein
v. Weisberg, 694 A.2d 644, 645-46 (Pa. Super. Ct. 1997).
66 ~[A]s the Superior Court noted in Giffear, damages for fear of cancer are speculative."
Simmons v. Pacor, Inc., 543 Pa. 664, 677, 674 A.2d 232, 238 (1996).
14
would be diverted into an evidentiary contest concerning the risks of contracting
diseases therefrom and the reasonableness of the plaintiff's fears of such
contraction.
In the present case, where Plaintiffs chose to present no evidence that Mr.
Nelson knew that he had been exposed to tainted blood, no evidence that the blood
he had been exposed to was tainted, and no evidence that he had contracted a
disease as a result of exposure to tainted blood, it is believed that the court's
pretrial ruling which precluded Plaintiffs from supporting Mr. Nelson's damage
claim by reference to his fear of contracting a blood-borne disease from a
transfusion at the hospital was proper.
Testimony of Ms. Nelson concerning orthodoxy of utilization of private
transportation for office visit. The admission of evidence is within the sound
discretion of the trial court. Commonwealth v. Allison, 550 Pa. 4, 7-8, 703 A.2d
16, 18 (1997). In general, a lay witness is not permitted to comment upon the
propriety of a course of treatment of a health care provider. Lira v. Albert Einstein
Medical Center, 384 Pa. Super. 503, 508-10, 559 A.2d 550, 552-53 (1989);
Dambacher v. Mallis, 336 Pa. Super. 22, 35-40, 485 A.2d 408, 415-17 (1984). A
plaintiff in a professional negligence action is generally not permitted to support
the negligence aspect of the claim by lay opinion. Joyce v. Boulevard Physical
Therapy & Rehabilitation Center, P.C., 694 A.2d 648, 654-55 (Pa. Super. Ct.
1997); Lira, 384 Pa. Super. at 508-10, 559 A.2d at 552-53. In addition, in general,
a party may not present evidence of professional negligence beyond the scope of
the report of his or her expert. See Pa. R.C.P. 4003.5(c).
In the present case, the court sustained Defendants' objection to Ms.
Nelson's testimony concerning the office visit only "to the extent that [Plaintiffs'
counsel was] going to go forward and attempt to bring out through [Ms. Nelson]
that there was something unorthodox about that [i.e., the mode of transportation
15
selected for the visit].''67 The court's ruling did not, as asserted by Plaintiffs'
counsel in the post-trial motion, preclude Ms. Nelson from "testify[ing] fully to
this element of Mr. Nelson's pain and suffering claim," nor did it "[preempt]
testimony [of Mr. Nelson's mother] about the uncomfortable transfer suffered by
Don ....,,68
In so ruling, the court was of the view that the question of the orthodoxy of
a mode of transportation from one medical or dental facility to another was a
negligence, not a damages, issue. In declining to permit the lay witness to testify
as to such orthodoxy, the court was influenced by the rules of evidence regarding
lay and expert testimony referred to above, and the fact that Plaintiffs' dental
expert had not based his opinion as to professional negligence upon this event.
Testimony of Mr. Berkheimer concerning out-of-court statement of Mr.
Nelson as to outcome of surgery. The principles of law regarding the admission of
evidence and lay and expert testimony recited above are also applicable to the
court's ruling on the testimony of Mr. Berkheimer as it related to Mr. Nelson's
statement of his expectations of the surgery. In responding to an objection of
Defendants' counsel based on hearsay grounds, the court sustained the objection
"to the extent" that the witness proposed to repeat an out-of-court statement of Mr.
Nelson questioning how his condition could have resulted from what he had
expected to be a minor procedure.69
In this regard, it was the court's view that this declaration was more an
expression of opinion as to the quality of Dr. Beaudry's performance than a
present sense impression or expression of an existing mental, emotional or
physical condition. Contrary to the assertions of Plaintiffs' counsel in their post-
trial motion, the court did not "halt[]" Mr. Berkheimer's testimony "about Mr.
Nelson's statements of his then existing mental, emotional or physical
67 N.T. 31, Trial.
68 Plaintiffs' Motion for Post-Trial Relief, paragraph 11, filed November 19,
69 N.T. 227, Trial.
2001.
16
condition,''7° the ruling was not "unsolicited,''7~ and the court's action, in its view,
fell short of being an example of"unprecedented judicial activism.''72
Response by court to jury question as to efJkct of deadlock on damages
issue. It is well-settled in Pennsylvania that, in general, an alleged error in an
instruction to a jury is waived in the absence of an objection by counsel. See Pa.
R.C.P. 227. l(b)(1). It is also well settled that where a trial error is harmless it will
not be a ground for a new trial. See In reM. T., 414 Pa. Super. 372, 395, 607 A.2d
271,282 (1992).
In the present case, the portion of the instruction in response to the jury's
question which Plaintiff's counsel finds offensive was obviously given for
purposes of clarification and was intended to avoid a misstatement of law. The
question submitted by the jury did not state that it had reached agreement upon
any of the verdict slip interrogatories, and the instruction provided in response to
the question did not invite the jury to reconsider any such agreement. To the
extent that the jury had in fact reached agreement in Plaintiffs' favor on the issues
of liability, the instruction did not have the effect of altering the agreement.73
Based upon the foregoing, in the court's view (a) the instruction in question
was not "inappropriate," (b) the instruction did not have a "prejudicial" effect
upon Plaintiffs, and (c) the issue of the propriety of the instruction was waived by
counsel's assent to it.
Weight of evidence as to verdict of jury on issue of damages for loss of
consortium. The credibility of witnesses and weight to be accorded their
testimony is within the province of the jury in its capacity as fact-finder. Nelson v.
Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995). In this capacity, the jury is
free to "believe all, some, or none of the testimony." Id. at 520, 653 A.2d at 637.
70 Plaintiffs' Motion for Post-Trial Relief, paragraph 14, filed November 19, 2001.
7~ Plaintiffs' Motion for Post-Trial Relief, paragraph 16, filed November 19, 2001.
72 Plaintiffs' Motion for Post-Trial Relief, paragraph 16, filed November 19, 2001.
73 As noted, the jury found in Plaintiffs' favor on the issues of liability.
17
Where a new trial is requested on grounds of the weight of the evidence, the test is
whether the jury's verdict was so contrary to the weight of the evidence as to
"shock[] the court's conscience." Bonavitacola v. Cluver, 422 Pa. Super. 556, 574,
619 A.2d 1363, 1372 (1993); see Nelson, 539 Pa. at 520, 653 A.2d at 636. More
specifically, where a new trial is requested on grounds of an inadequate verdict,
relief is appropriate only when the injustice of the verdict "stand[s] forth like a
beacon." Musumeci v. Penn's Landing Corp., 433 Pa. Super. 146, 153, 640 A.2d
416, 420 (1994) (quoting Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241
(1959)), appeal denied, 539 Pa. 653, 651 A.2d 540 (1994). A trial court's ruling
on a motion for a new trial based upon the weight of the evidence is a matter
within the sound discretion of the court. Bonavitacola, 422 Pa. Super. at 574, 619
A.2d at 1372.
In Nudelman v. Gilbride, 436 Pa. Super. 44, 647 A.2d 233 (1994), the
Pennsylvania Superior Court affirmed the refusal of a trial court to award a new
trial based upon a jury's award of zero damages to a husband for loss of
consortium, where his wife had sustained a fractured toe, damage to the saphenous
nerve in her left leg and left knee, and torn cartilage in her left knee, and was
hospitalized for three days, following negligence on the part of a defendant which
was a proximate cause of her injuries. In so holding, the Superior Court noted that
"[d]amages for loss of consortium have no market value, and the amount awarded
for loss of consortium is left to the sound judgment and common sense of the
jury." Id. at 56, 647 A.2d at 239.
In the present case, under the best of circumstances the oral surgery in
question could be expected to have affected the lives of Plaintiffs to some extent.
The jury's determination that the negligence of Defendant in failing to respond
promptly to a call or calls following the surgery, while causing a limited amount
of monetary and transient physical harm to Mr. Beaudry, did not result in any
appreciable loss of services or companionship to his spouse did not "stand forth
like a beacon" as an example of injustice.
18
For the foregoing reasons, Plaintiffs' motion for post-trial relief in the form
of a new trial on damages was denied.
BY THE COURT,
Jan S. Barnett, Esq.
3513 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Evan Black, Esq.
John R. Kantner, Esq.
240 Grandview Avenue
Suite 100
Camp Hill, PA 17011
Attorney for Defendants
J. Wesley Oler, Jr., J.
19