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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONALD J. CASPER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHANNON RALIA HALSTEAD AND
LYNETTE HALSTEAD
No. 3714 EDA 2015
Appeal from the Judgment Entered January 20, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 02966 December Term, 2013
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 03, 2017
Appellant, Donald J. Casper, appeals the January 20, 2016 order
entering a nonsuit in favor of Appellees. We affirm.
On March 19, 2013, Appellee Shannon Halstead rear-ended Appellant
while he was stopped at a stop sign. Notes of Testimony (N. T.), 10/21/15,
at 83-85. Appellant was unsure if he hit his knee during the impact. Id. at
121-122. Appellant did not experience pain after the accident. Id. at 87.
The next day, Appellant experienced soreness on his right side and consulted
with an attorney. Id. at 87, 91. After five or six days, Appellant pursued
medical treatment. Id. at 87, 91. Appellant ended treatment in August
2013, but continued to experience pain in his right knee. Id. at 98.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Appellant commenced this negligence action on December 13, 2013,
and it was assigned to the compulsory arbitration program. A panel of
arbitrators found in favor of Appellant against Appellee Shannon Halstead
only. Appellee appealed to the Court of Common Pleas. Appellant filed a
motion for extraordinary relief and was granted a discovery extension. See
Revised Case Management Order, 5/18/15, at 1. In August 2015, one
month after the discovery deadline of July 6, 2015, Appellant provided
Appellee with the expert report of Dr. Frederick Lieberman, whom he
intended to call as an expert witness at trial. See Motion in Limine,
8/31/15, at ¶¶ 10-11. The report indicated that Appellant consulted with Dr.
Lieberman for the first time on July 23, 2015. Id.
Prior to trial, Appellee moved to preclude Appellant from 1) calling his
expert witness; 2) referring to expert reports at trial; and 3) introducing MRI
and X-ray reports, as these reports were produced after the discovery
deadline and performed the same day as Dr. Lieberman’s deposition. See
Motion in Limine, 8/31/15, at ¶ 19; Motion in Limine, 10/13/15, at ¶¶ 11-18.
Appellant argued that Dr. Lieberman was Appellant’s treating physician, not
an expert, and was not subject to Pa.R.C.P. 4003.5(b). Response to Motion
in Limine, 10/5/15, at ¶ 17. The trial court granted Appellee’s motion and
precluded Dr. Lieberman’s testimony and introduction of the MRI and X-ray
reports. N. T. at 13-14.
At the conclusion of Appellant’s case-in-chief, Appellee moved for
nonsuit, arguing that without medical expert testimony, Appellant could not
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sustain his burden of proof. N. T. at 163. The trial court granted nonsuit in
favor of Appellee. Id. at 168-169. Appellant filed a motion for post-trial
relief, seeking removal of the entry of nonsuit and a new trial, which the trial
court denied.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court issued a
responsive opinion.
On appeal, Appellant raises two issues for our review:
1. Did the trial court err as a matter of law or abuse its
discretion when it granted [Appellee’s] motion in limine to
preclude [Appellant’s] treating physician, Dr. Frederick
Lieberman, M.D., from testifying at trial (and when it
subsequently denied [Appellant’s] motion for post-trial relief),
where, among other things, the record unequivocally provides
that the extraordinary prejudice suffered by [Appellant] resulting
from the trial court’s order substantially outweighed any
potential prejudice to [Appellee]?
2. Did the trial court err as a matter of law or abuse its
discretion when it denied [Appellant’s] motion to remove entry
of nonsuit and motion for a new trial, and found that medical
testimony is [sic] required to establish that [Appellant’s] knee
pain—which manifested only hours after the rear-end car
accident—was caused by the collision?
Appellant’s Brief at 7.
Appellant first claims that the trial court erred in precluding Dr.
Lieberman’s testimony, as he was a treating physician, and not an expert
witness subject to Pa.R.C.P. 4003.5. See Appellant’s Brief at 15. Appellant
argues that even if Dr. Lieberman was an expert witness, the court should
have imposed a less severe sanction than the dismissal of the action. Id.
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The admission or exclusion of evidence, including the admission of
testimony from an expert witness, is within the sound discretion of the trial
court. McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super.
2000). We may only reverse upon a showing that the trial court clearly
abused its discretion or committed an error of law. Id. Further,
Pennsylvania Rule of Civil Procedure 4003.5 provides, in pertinent part:
(a) Discovery of facts known and opinions held by an expert,
otherwise discoverable under the provisions of Rule 4003.1 and
acquired or developed in anticipation of litigation or for trial, may
be obtained as follows:
(1) A party may through interrogatories require
(A) any other party to identify each person whom
the other party expects to call as an expert witness
at trial and to state the subject matter on which the
expert is expected to testify and
(B) subject to the provisions of subdivision (a)(4),
the other party to have each expert so identified
state the substance of the facts and opinions to
which the expert is expected to testify and a
summary of the grounds for each opinion. The party
answering the interrogatories may file as his or her
answer a report of the expert or have the
interrogatories answered by the expert. The answer
or separate report shall be signed by the expert.
…
(3) 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 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
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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.
…
(b) An expert witness whose identity is not disclosed in
compliance with subdivision (a)(1) of this rule shall not be
permitted to testify on behalf of the defaulting party at the trial
of the action. However, if the failure to disclose the identity of
the witness is the result of extenuating circumstances beyond
the control of the defaulting party, the court may grant a
continuance or other appropriate relief.
See Pa.R.C.P. 4003.5.
A doctor may serve as either a treating physician, an expert witness,
or in both capacities; the distinction being whether his opinions were
developed with an eye to litigation. See, e.g., Miller v. Brass Rail Tavern,
Inc., 664 A.2d 525, 532 (Pa. 1995); Kurian ex rel. Kurian v. Anisman,
851 A.2d 152, 156 (Pa. Super. 2004); Feingold v. Southeastern Transp.
Authority, 517 A.2d 1270, 1271 (Pa. 1986). Where opinions are not
acquired or developed with an eye toward litigation, Pa.R.C.P. 4003.5 is
inapplicable. Jahanshahi v. Centura Dev. Co., 816 A.2d 1179, 1185 (Pa.
Super. 2003).
The record reflects that Appellant was injured in a motor vehicle
accident on March 19, 2013. The discovery deadline was July 6, 2015.
Appellant first consulted with Dr. Lieberman on July 23, 2015. N. T. at 8.
Appellant did not disclose Dr. Lieberman’s report until August 6, 2015. Dr.
Lieberman’s narrative report concluded Appellant’s injuries were caused by
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the accident and this conclusion was made “with a reasonable degree of
medical certainty.” See Motion in Limine, 8/31/15, Exhibit A. Appellant
intended to call Dr. Lieberman to “testify with regard to causation” and
admitted that Dr. Lieberman would be qualified as an expert. N. T. at 9, 11.
Accordingly, the trial court did not err in concluding that Dr. Lieberman was
an expert witness retained with an eye toward litigation, subject to the
disclosure requirements of Pa.R.C.P. 4003.5. Kurian, 851 A.2d at 156.
If an expert witness’s identity is not disclosed in compliance with the
Rules of Civil Procedure, he shall not be permitted to testify on behalf of the
party at the trial. Pa.R.C.P. 4003.5 (emphasis added); see also Feingold,
517 A.2d at 1273. If the failure to disclose the identity of the witness is the
result of extenuating circumstances beyond the control of the defaulting
party, the court may grant a continuance or other appropriate relief. Id. At
no time did Appellant identify or make argument on extenuating
circumstances that prevented him from complying with the discovery rules
and producing Dr. Lieberman’s report prior to the discovery deadline.
Indeed, his entire argument is premised on the flawed notion that Dr.
Lieberman’s report was not subject to the discovery rules.
Nevertheless, Appellant argues that the trial court did not
appropriately consider certain factors balancing the facts and circumstances
of the case to determine the prejudice to each party prior to precluding the
testimony of a witness. See Appellant’s Brief at 18-19 (citing Feingold, 517
A.2d at 1273). However, Appellant’s argument that the court did not
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appropriately consider the prejudice to each party is misplaced. Feingold
requires the consideration of prejudice and surprise to the party against
whom the excluded witnesses would have testified, not the prejudice to the
party presenting the witness. Feingold, 517 A.2d at 1273.
Here, the trial court properly examined whether admitting the
testimony of Dr. Lieberman would be prejudicial to Appellee. The testimony
of a witness should not be precluded in the absence of prejudice. Brown v.
Trinidad, 111 A.3d 765, 774 (Pa. Super. 2015). Appellee was prejudiced
by Appellant’s failure to disclose Dr. Lieberman’s testimony, as she prepared
for trial under the assumption Appellant would not be presenting an expert
witness or additional diagnostic imaging. Appellee was denied the
opportunity to retain and disclose an expert to rebut Appellant’s testimony,
adequately cross examine Dr. Lieberman, or have timely access to all of the
information in Appellant’s reports.
Further, at the time of trial the case had already proceeded for over
three years. Appellant had already been granted a discovery deadline
extension. Where case management deadlines are violated, and the other
party suffers prejudice due to an unjustified delay, sanctions are proper.
Kurian, 851 A.2d at 162. Accordingly, the trial court did not abuse its
discretion in concluding that Appellee would have been prejudiced by the
introduction of the testimony and the prejudice could not be cured. Id.
Next, Appellant claims that expert testimony was not required to
establish causation because the connection between the negligent act and
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the pain was obvious. See Appellant’s Brief at 23. Accordingly, he argues
that the trial court erred in granting a nonsuit in Appellee’s favor. Id.
The standard and scope of review in an appeal from the entry of
nonsuit is well established:
A motion for compulsory non-suit allows a defendant to test the
sufficiency of a plaintiffs’ evidence and may be entered only in
cases where it is clear that the plaintiff has not established a
cause of action; in making this determination, the plaintiff must
be given the benefit of all reasonable inferences arising from the
evidence. When so viewed, a non-suit is properly entered if the
plaintiff has not introduced sufficient evidence to establish the
necessary elements to maintain a cause of action; it is the duty
of the trial court to make this determination prior to the
submission of the case to the jury. When this Court reviews the
grant of a non-suit, we must resolve all conflicts in the evidence
in favor of the party against whom the non-suit was entered.
A compulsory non-suit is proper only where the facts and
circumstances compel the conclusion that the defendants are not
liable upon the cause of action pleaded by the plaintiff.
Parker v. Freilich, 803 A.2d 738, 744–45 (Pa. Super. 2002) (internal
citation omitted). An order denying a motion to remove a compulsory
nonsuit will be reversed on appeal only for an abuse of discretion or error of
law.” Dietzel v. Gurman, 806 A.2d 1264, 1268 (Pa. Super. 2002).
“To establish a viable cause of action in negligence the pleader must
aver in his complaint (1) a duty, (2) a breach of that duty, (3) a causal
relationship between the breach and the resulting injury, (4) and actual
loss.” Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super. 2011) (internal
quotation marks and citation omitted). The law in this regard is well settled.
Generally, in a personal injury case, a plaintiff must prove causation by
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expert medical testimony. Lattanze v. Silverstrini, 448 A.2d 605, 608
(Pa. Super. 1982). However, where there is an obvious causal relationship
between the two, such testimony is not required. Lattanze, 448 A.2d at
608. An obvious causal relationship exists where the injuries are either
“immediate and direct” or the “natural and probable” result of the alleged
negligent act. Id. “The two must be ‘so closely connected and so readily
apparent that a layman could diagnose (except by guessing) the causal
connection…’” See Smith v. German, 253 A.2d 107, 109 (Pa. 1969).
In the instant case, such an obvious causal relationship did not exist.
Appellant was involved in a car accident and stated that he “felt fine”
immediately after the accident. N. T. at 87. He did not remember if he hit
his leg during the impact. Id. at 121-122. Appellant did experience
soreness on his right side the next day, but did not seek medical attention
until five or six days later. Id. at 87, 91. He treated for approximately four
months. Id. at 98. Based upon the above testimony, and with the absence
of an expert report as to causation, Appellant could not demonstrate such a
closely connected and readily apparent connection that a layman could
diagnose the cause of his knee pain. Accordingly, the trial court did not
abuse its discretion in granting a nonsuit at the close of Appellant’s case in
chief. Dietzel, 806 A.2d at 1268.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2017
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