Recently, in the case of Hassel v Franzi, the Pennsylvania Superior Court addressed evidentiary issues in a medical negligence case involving learned treatises, notice, cumulative testimony and relevancy.
Mary Hassel, a 65-year-old woman, presented to Dr. Arnold, an orthopedic surgeon, with complaints of worsening left knee pain. A MRI showed a fracture of Mrs. Hassel's femur. Dr. Arnold determined that surgery was not necessary and recommended immobilizing Mrs. Hassel's left leg to facilitate healing. Blood clot prevention, including the anti-coagulant medication, Coumadin, was discussed with Mrs. Hassel. Dr. Arnold told Mrs. Hassel that he would contact her primary care physician, Dr. Franzi, to discuss blood clot prevention treatment. Dr. Arnold and Dr. Franzi agreed that Dr. Franzi would select the course of treatment for Mrs. Hassel based on his existing relationship with her and extensive knowledge about her medical history.
Dr. Franzi contacted Mrs. Hassel that same day and advised her to take 325 milligrams of aspirin, an anti-platelet medication, twice per day to prevent blood clots. Dr. Franzi discussed Coumadin and aspirin as options to prevent blood clots but did not discuss other drugs. Almost three (3) weeks later, Ms. Hassel was experiencing nausea, dry heaves, and diarrhea. At 5:54 p.m. Mr. Hassel called Dr. Franzi's office to report her symptoms and left a message with a staff member. He expected to be called back but wasn't. Mrs. Hassel's symptoms persisted and worsened and Mr. Hassel placed another call to Dr. Franzi's office. Once again, Mr. Hassel's call was not returned. Hours later, Mrs. Hassel began to experience shortness of breath and Mr. Hassel placed a call to 911 at 1:42 a.m. Paramedics arrived to transport Mrs. Hassel to the hospital and she died shortly thereafter. Mrs. Hassel's cause of death was cardiac arrest caused by the DVT in her left leg and subsequent pulmonary embolism that developed.
Plaintiff filed negligence claims for the wrongful death of his wife alleging that the doctors were negligent in failing to prescribe an anti-coagulant medication as prevention for deep vein thrombosis, and for Dr. Franzi’s failure to return Mr. Hassel’s calls on the day preceding Ms. Hassel’s death. Ultimately, the case went to trial, and the jury found that Dr. Franzi's treatment fell below the applicable standard of care, but that his negligence was not a factual cause of any harm to Ms. Hassel and awarded no damages. The jury also found that Dr. Arnold's treatment did not fall below the applicable standard of care and no damages were awarded.
Hassel argued that the trial court committed multiple errors in allowing defense counsel to utilize medical literature ("Learned Treatises") during direct examination of their own defense experts to improperly bolster their opinions; and, to publish (i.e. display the documents on a screen projected for the jury to see) multiple medical literature articles during cross-examination of Plaintiff's experts.
Pennsylvania courts allow an expert witness the limited use of textual material on direct examination to explain the basis for that expert's reasoning. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). On cross-examination, an expert witness may be questioned on the contents of any publication on which he or she relied in forming an opinion, or one in the field that he or she considers generally reliable; the evidence is admissible to challenge the witness's credibility, but the writing cannot be admitted for the truth of the matter asserted. Majdic v. Cincinatti Mach. Co., 537 A.2d 334, 339 (Pa.Super. 1988). Excerpts from a publication which are read into evidence for the purpose of proving the truth of the statements contained therein constitute hearsay and, therefore, are inadmissible. This fact is not changed merely because the document is read into evidence by the witness instead of being received as an exhibit for inspection by the jury. It is the purpose for which the information is offered, not the manner in which is introduced, which makes it objectionable. Id. at 340.
In Aldridge, the Pennsylvania Supreme Court held that although some published materials could be considered hearsay, an expert witness may nonetheless rely upon them in the formation of his or her opinion, and it would be unreasonable to restrain an expert witness entirely from any use of a learned treatise. Id. at 333-34, 750 A.2d at 297-98. However, the Supreme Court did direct that trial courts should exercise caution and issue limiting instructions when allowing the use of learned treatises to ensure that the publications themselves did not become the focus of the examination and supersede the expert's own testimony. Id. Thus, upon a party's request, the trial court shall issue appropriate limiting instructions to ensure that the inadmissible hearsay does not come in for substantive purposes and that the treatise does not become the focus of cross. Aldridge, 750 A.2d at 297 (citing Pa.R.E. 105 (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.”)). It remains to be determined, however, “whether the appellants are entitled to a new trial, as an erroneous evidentiary ruling will generally require reversal only if it caused prejudice.” Aldridge, 750 A.2d at 298 (holding that erroneous admission of hearsay did not prejudice results of trial so as to require reversal). A trial court's failure to limit the use of treatises effectively may constitute grounds for reversal only if the issue was properly preserved at all stages of the proceedings and prejudice can be established. See Klein, 85 A.3d at 505 (Pa. Super. 2014) (Citing Aldridge, 750 A.2d at 298, Crespo v. Hughes, 167 A.3d 168, 185–87 (Pa.Super. 2017).
Here, the PA Superior Court determined that Hassel failed to identify in his Concise Statement where in the record these challenges were preserved for appeal. Moreover, the Court was unable to ascertain a place where Hassel requested that the trial court provide the jury with a limiting instruction. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all. Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super. 2000). As a result, the Court determined that Hassel had waived this issue for appeal. See Crespo, 167 A.3d at 187 (stating trial court’s alleged failure to limit properly the use of learned treatises constitutes grounds for a new trial only where a party specifically objects to the impermissible reading medical literature and requests a specific limiting instruction pertaining to the jury’s consideration of the literature).
Experts may testify at trial concerning matters which are within the fair scope of a pretrial report. The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert's proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report. Walsh v. Kubiak, 661 A.2d 416, 419-20 (Pa.Super. 1995). The fair scope rule is addressed in Pa.R.C.P. 4003.5(c) and provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or, as here, included in a separate report. In Wilkes–Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre, Inc., 502 A.2d 210 (Pa.Super. 1985), this Court explained that: [I]t is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary's request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (1984) (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns– Manville Corp., 322 Pa. Super. 348, 469 A.2d 655 (1983) (“[W]e have found experts' reports to be adequate ... when the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness.”). In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Id. at 212–13.
Here, Hassel maintained that he objected to defense expert’s testimony regarding the placement of a filter to prevent a clot, which was offered in response to Hassel’s expert testimony, on the basis that the defendant’s expert’s report did not reference filters. However, the Court found that Hassel did not set forth a specific objection in this regard; and, therefore, this claim was waived in accordance with Pa. R.A.P. 302(a); Jones v. Ott, 191 A.3d 782, 787 (2018) (stating “In order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record.”
Corroborative v. Cumulative Evidence
Hassel argued that the trial court erred in allowing the defendants to introduce “excessively duplicative” expert testimony despite its pretrial order entered November 29, 2017, in response to Dr. Arnold’s Motion in Limine filed on November 15, 2017, precluding Hassel from offering cumulative testimony at trial. Hassel stated that in reliance upon this directive, he did not ask his expert to opine as to standard of care. Hassel argued the direct testimony of the defendant’s expert, a general clinical cardiovascular specialist, was unnecessary as the instant matter did not involve cardiology issues and other defense experts testified as to standard of care. Hassel also stated that this, along with proffered testimony of an expert internist qualified to discuss primary care medicine, on the standard of care constituted excessively cumulative and severely prejudicial testimony.
Here, the Court noted that there is a subtle difference between evidence that is ‘corroborative’ and evidence that is ‘cumulative.’ In the most general sense, corroborative evidence is ‘evidence that differs from but strengthens or confirms what other evidence shows,’ while cumulative evidence is ‘additional evidence that supports a fact established by the existing evidence.’ Black's Law Dictionary. 674, 675 (10th ed. 2014).” Commonwealth v. Small, 189 A.3d 961, 972 (2018). Ultimately, the Superior Court concluded that the trial court did not abuse its discretion in finding that the challenged testimony was corroborative rather than cumulative and, therefore, proper under the terms of its pre-trial orders because each of defendant’s experts opined form the perspective of his specialty, and approached the standard of care from different clinical perspectives. Each of the experts reached the same conclusion, that aspirin was an appropriate treatment for Mrs. Hassel, and their testimony is consistent with what the Superior Court determined in Klein v. Aronchickto be corroborative testimony, not cumulative testimony.
Finally, Hassel alleged that the trial court erred in failing to permit him to cross-examine the defendant regarding his prior involvement in medical malpractice cases, and to cross-examine a defense expert regarding his relationship with defendant’s counsel. In Flenke v. Huntington, 111 A.3d 1197 (Pa.Super. 2015) the Court held that the impeachment of expert witnesses by demonstrating their partiality is permitted under Pennsylvania law.
In Pennsylvania, evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” Pa.R.E. 401(a). “All relevant evidence is admissible, except as otherwise provided by law.” Pa.R.E. 402. Although relevant, evidence may be excluded “if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Moreover, [t]he scope of cross-examination is within the sound discretion of the trial court, and appellate courts will not reverse the trial court's exercise of discretion in absence of an abuse of that discretion.
Here, the Superior Court noted that every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Specifically regarding medical experts, the scope of cross-examination involving a medical expert includes reports or records which have not been admitted into evidence but which tend to refute that expert's assertion. Jacobs v. Chatwani, 922 A.2d 950 (Pa.Super. 2007). In Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, (Pa.Super. 2002), the Superior Court acknowledged that “an expert witness can be cross-examined as to any facts that tend to show partiality on the part of the expert.” Nevertheless, the Court determined that Hassel failed to establish that any error with regard to these evidentiary rulings resulted in prejudice to him which would warrant a new trial. See Yacoub, 805 A.2d at 586 (“[I]f the basis of the request for a new trial is the trial court's rulings on evidence, then such rulings must be shown to have been not only erroneous but also harmful to the complaining party.”).
Accordingly, the Superior Court affirmed the decision of the trial court.