Vanden-Brand v. Port Authority of Allegheny County

DISSENTING OPINION BY

Judge COLINS.

I must respectfully dissent from the opinion of the majority.

I disagree with the majority’s statements that: “The discrepancy between Dr. Dobkin’s pre-trial report and trial testimony prevented the Port Authority from making a meaningful response or procuring its own expert to counter his opinions and could have misled the jury in its consideration of the extent of Vanden-Brand’s future medical needs. As a result, the Port Authority was prejudiced by the admission of Dr. Dobkin’s testimony.” I find that this conclusion is not supported by substantial evidence in the record.

In so doing, I concur with the Trial Court’s finding that the Port Authority’s contention, that it could not adequately respond to Dr. Dobkin’s trial testimony because of the discrepancy between that testimony and Dr. Dobkin’s pre-trial medical reports concerning Vanden-Brand’s prognosis, to be without merit. Although Dr. Dobkin’s report limited its discussion of Vanden-Brand’s possible future treatment choices to significant doses of narcotics, and deemed surgical treatment not viable, his trial testimony expanding Van-den-Brand’s possible treatment options to include hypodermic nerve blockers or ver-tebroplasty, a surgical modality, does not posit such radical or non-traditional procedures as to preclude the Port Authority from being able to make a meaningful response. It is disingenuous of the Port Authority to expect this Court to believe that in the course of preparing its response to Dr. Dobkin’s initially suggested treatment options, it never encountered mention of his subsequently posited surgical treatment options, so as to prejudice the Port Authority and preclude its ability to adequately respond.

I further concur with the Trial Court’s dismissal of the Port Authority’s contention that Dr. Dobkin’s testimony exceeded the scope of his expertise and report. The courts on this issue have stated

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 pre-trial 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 response

(Citations omitted.)

Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1029 (Pa.Super.2001), quoting Brady v. Ballay, Thornton, Maloney Med., 704 A.2d 1076, 1079 (Pa.Super.1997). Additionally, “the opposing party must be prejudiced as a result of the testimony going beyond the fair scope of the expert’s report before admission of the testimony is considered reversible error.” Coffey v. Minwax Co., 764 A.2d 616, 621(Pa.Super.2000), quoting Petrasovits v. Kleiner, 719 A.2d 799, 804 (Pa.Super.1998).

Applying the Cortado rationale to the present matter, I find that no evidence of record supports the Port Authority’s argument that Dr. Dobkin’s testimony concerning Vanden-Brand’s future treatment options, when compared with his pre-trial reports and medical records, contained such surprises as to be prejudicial to Port Authority’s ability to respond.

*587Accordingly, I would affirm the Trial Court’s order.