Wexler v. Hecht

DISSENTING OPINION BY JOHNSON, J.:

¶ 1 I respectfully dissent. In this case the Majority would affirm the trial court’s entry of summary judgment against a medical malpractice plaintiff on the conclusion that the plaintiffs proffered expert witness, a doctor of podiatric medicine, was not qualified to testify as an expert against the defendant orthopedic surgeon. Regrettably, the Majority presumes, as did the trial court, that the standard of care for the removal of bunions is materially different in podiatric practice from the standard for the same procedure when conducted by an orthopedist. I am aware of no such presumption in our law. Nevertheless, the Majority accepts the trial court’s explanation, requiring no substantiation for its determination that the standards are in fact distinct, and apparently adopts the trial judge’s philosophical exegesis. Indeed, the Majority would compound the trial judge’s error, concluding that the court did not err when it refused the only testimony offered to determine what, if any, overlap exists between the respective doctors’ expertise and practice. In the absence of such evidence, we cannot properly conclude that the proffered expert witness was not qualified to testify against the defendant. I conclude accordingly that the trial court’s entry of summary judgment in this matter was erroneous.

¶2 In Pennsylvania, the threshold of expertise necessary to qualify a witness to give expert testimony is relatively modest. See Miller v. Brass Rail Tavern, 541 Pa. 474, 664 A.2d 525, 528 (1995). The witness must have sufficient skill, knowledge, or expertise in the field at issue “as to make it appear that his opinion or inference will probably aid the trier [of fact] in his search for truth.” W. Phila. Therapy Ctr. v. Erie Ins. Group, 751 A.2d 1166, 1168 (Pa.Super.2000). Accordingly, the witness needs neither to possess all of the knowledge in his field of expertise, see Miller, *106664 A.2d at 528, nor to be the best witness to testify on the matter at hand, see Chanthavong v. Tran, 452 Pa.Super. 378, 682 A.2d 334, 339 (1996) (quoting Taylor v. Spencer Hosp., 222 Pa.Super. 17, 292 A.2d 449, 453 n. 2 (1972)). Rather, he need only possess “more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience” of the average juror. See Miller, 664 A.2d at 528; see also W. Phila. Therapy Ctr., 751 A.2d at 1168. Thus, regardless of the source or character of his expertise, a witness may testify as an expert if he has “any reasonable pretension to specialized knowledge on the subject under investigation.” Id. (original emphasis). Provided this standard is met, the witness is qualified to testify and the weight accorded his or her testimony is left to the factfinder, which will accept or reject it on grounds of credibility. See id.

¶ 3 I agree with the Majority that even subject to this lenient benchmark, not all expert testimony is admissible on the point for which it is offered. An expert’s opinion is admissible only to the extent that the witness’s experience and education encompasses the subject in question.

Sometimes it may appear that the scope of the witness’s experience and education embraces the subject in question in a logical, or fundamental, sense. In such a case, the witness is qualified to testify even though he has no particularized knowledge of the subject as such; for he will be able to reason from the knowledge he does have.
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Other times it may appear that the scope of the witness’s experience and education may embrace the subject in question in a general way, but the subject may be so specialized that even so, the witness will not be qualified to testify. Thus, every doctor has a general knowledge of the human body. But an ophthalmologist, for example, is not qualified to testify concerning the causes and treatment of heart disease.

Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 419 (1984). Significantly, however, neither Dambacher nor any other case espouses a rule of law that shields practitioners in one practice specialty from the opinions of those in others based merely on differing credentials or certifications. Compare Op. at 99 (concluding that “the relevant standard of care is the standard applicable to orthopedic surgeons, because the procedure at issue was performed by an orthopedic surgeon”).

¶ 4 Rather, our cases recognize consistently that, particularly in medicine, the overlap of practitioners’ education and experience in treating the same or similar maladies renders the opinions of one specialist instructive on how properly to treat those maladies, regardless of the practitioners’ respective credentials. Thus, even in cases of medical malpractice, which depend for resolution on identifying and applying an appropriate standard of care, we have been circumspect in limiting the admissibility of expert testimony so long as the witness’s clinical experience encompasses the treatment, practice, or malady at issue. See B.K. v. Chambersburg Hosp., 834 A.2d 1178, 1182 (Pa.Super.2003) (reversing grant of summary judgment against plaintiff and allowing pediatrician to testify as expert witness against emergency room physician on claim of malpractice for emergency room care of pediatric seizure); George v. Ellis, 820 A.2d 815, 818-19 (Pa.Super.2003) (granting new trial in action against board-certified orthopedist where plaintiffs expert witness, a physician not licensed in the United States, had nonetheless conducted hundreds of surgeries of the type at issue); Corrado v. *107Thos. Jefferson Univ. Hosp., 790 A.2d 1022, 1028 (Pa.Super.2001) (affirming trial court’s ruling allowing testimony of physician not certified in radiology to testify on reading CT films and radiologist’s standard of care where physician, an internist and medical oncologist, practiced multi-dis-ciplinary approach to treatment of cancer patients); Rauch v. Mike-Mayer, 783 A.2d 815, 821-22 (Pa.Super.2001) (reversing grant of summary judgment against plaintiff estate of stroke victim on basis that plaintiffs proffered expert witnesses in neurology, emergency medicine, and internal medicine possessed adequate knowledge of cause of stroke to testify concerning causative role of anesthesiologist); Bindschusz v. Phillips, 771 A.2d 803, 807-09 (Pa.Super.2001) (affirming trial court’s ruling allowing testimony of anesthesiologist on causes of neurologic pain disorder sustained by patient during surgery by defendant orthopedic surgeon); Poleri v. Salkind, 453 Pa.Super. 159, 683 A.2d 649, 655 (1996) (vacating and remanding for new trial where trial court precluded testimony of physiatrist on appropriate standard of care for post-operative wound care by orthopedic surgeon).

¶ 5 Indeed, we have sustained trial courts’ refusals to admit expert medical testimony only where the record demonstrated that the proffered witness had no expertise or experience in the treatment, procedure or practice about which he sought to testify. See Kovalev v. Sowell, 839 A.2d 359, 364 (Pa.Super.2003) (affirming grant of compulsory non-suit against plaintiff who offered expert testimony on his own behalf concerning purported spinal injury because although plaintiff had formerly practiced medicine in Russia, “he had no specialized skills, knowledge or experience in orthopedics, radiology, neurology, or any medical subspecialty that would have been pertinent to this case”); Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 579, 592 (Pa.Super.2002) (affirming ruling at trial precluding testimony by neurologist against internist and nursing staff where witness “could not remember the last time he interacted with nurses in a Special Care Unit, ... never published anything regarding nursing, ... never practiced or became certified in internal medicine and [] did not regularly read journals on this topic”); Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649, 651 (1990) (affirming trial court’s ruling precluding testimony of orthodontist concerning cause of plaintiffs nerve injury during oral surgery where witness “never performed surgery, never observed a peroneal nerve injury, is not a neurologist, is not board certified and is rarely present in the operating room ”).

¶ 6 This approach is entirely consistent with our jurisprudence outside the medical malpractice arena. See e.g. Erschen v. Pa. Indep. Oil Co., 259 Pa.Super. 474, 393 A.2d 924 (1978) (finding fire marshal not qualified to testify on origin of gas explosion because he had no formal instruction or on-the-job training concerning that issue); McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, 441-42 (1987) (finding specialist in pharmacology not qualified to testify concerning drug he had never studied or researched and with which he had no clinical experience); Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984) (finding two auto mechanics not qualified to testify concerning effect of mixing radial and non-radial tires because “nothing in their experience, or in such education as they had had, enabled them to reason about what that effect would be”).

¶ 7 In no case have we determined evi-dentiary admissibility based merely on purported distinctions in treatment philosophy where the proffered expert’s clinical experience encompasses the procedure or *108treatment at issue. Similarly, we have eschewed attempts to limit admissibility based merely on formalized distinctions between areas of specialization or practice. See Rauch v. Mike-Mayer, 788 A.2d at 821-22 (“We are unaware of any reason that would preclude the cause of stroke from being matter within the cognizance of any medical doctor.”); cf. B.K., 834 A.2d at 1182 (“The touchstone of expert qualification is, again, ‘specialized knowledge.’ To preclude scholars, authors, instructors, and other authorities from qualifying as experts simply because they teach or supervise a craft rather than practice the craft flies in the face of the specialized knowledge standard.”).

¶ 8 I am compelled to conclude accordingly that neither orthopedic surgeons nor practitioners of any other medical specialty may be insulated from the comment or criticism of peers in other specialties on the basis of “holistic treatment philosophy” or any similarly amorphous criterion. In this case, the trial court espoused a rule wholly to the contrary, and in so doing, flouted a long and varied line of appellate cases, all germane to this issue. Moreover, the court pursued its course without any substantiation of record to show that the distinctions it cited between specialists do in fact exist or that they are in any way material to a podiatrist’s ability to testify on the appropriate standard of care for the treatment of bunions by an orthopedic surgeon. Indeed, the court’s rationale appears crafted from inference on inference with reference only to dictionary definitions and legal treatises, both secondary sources of authority. See Trial Court Opinion, 8/13/03. at 12 nn. 2, 3 (quoting Dorland’s Medical Dictionary 1193 (28th ed.1994)); 70 C.J.S. Physicians, SuRgeons AND OTHER HEALTH CARE PROVIDERS § 5. The following excerpt, which the Majority appears to accept, Op. at 100, is illustrative if not uncommon:

As treatment of a part within the context of the whole is to treatment of one of its deeontextualized parts, so is an orthopedic approach to surgery of the foot to a podiatric approach to the same surgery. Medical surgery is a specialty within medicine and orthopedics, which [the defendant] specialized in, is a sub-specialty within medical surgery. Specifically, orthopedics is defined as that branch which is specifically concerned with the preservation and restoration of the function of the skeletal system, its articulations and associated structure.” [footnote omitted, citing Dorland’s Medical Dictionary] Thus, the approach an orthopedic surgeon will take to a patient will be guided by his understanding of the patient’s entire skeletal system, including the skeletal system’s articulations and associated structures, viewing the foot as one part of the entire system.
By contrast, podiatry, which [plaintiffs expert] specialized in, is defined as “the care of the foot, including its anatomy, pathology, medical and surgical treatment, etc.” [footnote omitted, citing Dor-land’s Medical Dictionary] Hence the approach a podiatric surgeon will take to a patient will be guided by his telescoped focus on the patient’s foot, that one part of the patient’s overall skeletal system that the podiatrist is specifically trained to study and care for. By way of contrast between the different modalities of treatment, the holistic approach an orthopedic surgeon takes may at times, for example, involve considering amputations, which the restricted approach a podiatrist takes may never consider, nor may a podiatrist consider administering anesthetics that often form part of an orthopedist’s holistic approach.

Trial Court Opinion, 8/3/03, at 12-13 (emphasis added). Similar excerpts appear *109elsewhere in the court’s opinion and, like this one, are not substantiated. Trial Court Opinion, 8/3/03, at 14-15.

¶ 9 The court’s inferential conclusions, which appear in italics above, are the linchpin of its analysis; from them the court divines that the standard of care for orthopedists is distinct from that of podiatrists, notwithstanding the fact that the procedure in question (the treatment of bunions) is indisputably common to both specialties and, at least ostensibly, will not require amputation. Trial Court Opinion, 8/3/03, at 12-13. The court then attributes multiple perceived deficiencies in the podiatrist’s expert report to a failure to dispel the distinctions the court presumes in the foregoing paragraphs. Trial Court Opinion, 8/3/03, at 11-12. I find the court’s inferences unsubstantiated and therefore cannot countenance its decision to preclude the plaintiffs’ expert testimony, putting them out of court on what I can only characterize as conjecture.

¶ 10 Under similar circumstances, where the proffered expert’s practice bears common elements with the defendant’s, we have admitted the expert’s testimony subject to proof that he or she is not qualified to testify, i.e. that the “expert” in fact has no expertise on the subject in question. See Rauch, 783 A.2d at 822 (reversing trial court’s order granting summary judgment in favor of defendant anesthesiologist because “no matter of record indicates that [plaintiffs expert witnesses] were unqualified to express an expert medical opinion concerning the standards pertinent to the treatment of a patient in Mrs. Rauch’s condition at the time of her demise”). Because I find no demonstration on the record that the podiatrist whose testimony is at issue lacked expertise in the treatment of bunions (operatively, post-operatively, or at any other time), I am compelled to conclude that the trial court erred in precluding his testimony. Accordingly, the court’s entry of summary judgment is likewise erroneous.

¶ 11 Moreover, I am unconvinced at the applicability to this action of the Medical Care Availability and Reduction of Error Act (MCARE), on provisions of which the Majority relies in the alternative to affirm the trial court’s order. As the Majority has acknowledged, the trial court expressly negated reliance on MCARE in its order granting the defendant’s motion in limine but then acknowledged the statute in its Rule 1925(a) opinion. Although I recognize that we may affirm a trial court’s disposition on any basis apparent in the record, see Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72, 76 (1974), I am troubled that the Majority’s embrace of MCARE at this late juncture has effectively deprived the parties of any opportunity to develop a record responsive to MCARE’s provisions. Perhaps if the defendants had sought to apply MCARE before the trial judge, the plaintiff could have acted to obtain additional expert testimony that the trial judge, and ostensibly the Majority, would have found more palatable.

¶ 12 More to the point, however, I simply find no authority for the Majority’s retroactive application of a statute that effectively recasts the standard by which the plaintiffs must prove their entitlement to relief on a vested cause of action. The plaintiff, in her appellate brief, contested the trial court’s belated application of MCARE, contending that the statute was enacted after the commencement of this case. In my view, this point is potentially dispositive. The Majority, however, dismisses the plaintiffs assertion in the following excerpt:

Appellant argues in passing that § 1303.512 does not apply to this case because it was enacted after her com*110plaint was filed. Appellant’s Brief at 12. We disagree. Section 1303.512 indicates that it became effective 60 days from March 20, 2002 (i.e., on or about May 20, 2002). Thus, § 1303.512 had been in effect for approximately seven months before the trial court excluded Dr. La-zar’s testimony in December 2002.
Certain sections of the MCARE Act apply only to “causes of action which arise on or after the effective date” of those sections. See, e.g., Historical and Statutory Note to § 1303.513 (Statute of Repose), Historical and Statutory Note to § 1303.516 (Ostensible Agency). No such caveat applies to Section 1303.512. Accordingly, we hold that this section does apply to Appellant’s case.

Op. at 101. Significantly, the Majority’s disposition relies not upon any directive from the legislature, but upon the absence of one. The Majority apparently reasons that because section 512 specifies an effective date and does not direct that its strictures should be applied only prospectively, it may be applied to all cases regardless of the dates on which the underlying cause of action arose. I find no support for so encompassing an application of this section. Given the attendant eradication of the plaintiffs substantive claim, I find it contrary to law.

¶ 13 The Statutory Construction Act proscribes retroactive application of statutes save for those exceptional instances where the legislature so directs. The mandate of the Act is clear that “[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926 (Presumption against retroactive effect). In accordance with this proscription, our Supreme Court has refused to apply enactments retroactively unless the legislature appends specific direction that the section in question is to be so applied. See Petrovich v. Commonwealth, Dep’t of Transp., 559 Pa. 614, 741 A.2d 1264, 1269 (1999) (superseded by statute on other grounds, 75 Pa.C.S. § 1586) (declining to apply statutory amendment to action in process prior to its enactment because amendment did not require such application in express terms); see also Moyer v. Berks Cty. Bd. of Assessment, 803 A.2d 833, 842 (Pa.Cmwlth.2002) (“It is well established that a statute must be construed prospectively unless the legislature intends that it operate retrospectively and expresses this intent so clearly as to preclude any question.”). I find no such direction appended to MCARE section 512, nor can I construct the requisite level of clarity from the legislature’s application of MCARE section 512 sixty days after the date of enactment. The caveats appended to other sections of the Act do not ameliorate my doubt; the fact remains that both the Statutory Construction Act and our Supreme Court’s holdings require manifest certainty, not an assumption constructed from the absence of direction that is only made apparent by reference to provisions not at issue.

¶ 14 I am mindful nevertheless that application of a statute to a pending action cannot be deemed retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment. See In re R.T., 778 A.2d 670, 679 (Pa.Super.2001) (citing Creighan v. City of Pittsburgh, 389 Pa. 569, 132 A.2d 867, 871 (1957)). Indeed, our Supreme Court has acknowledged that “legislation concerning purely procedural matters will be applied not only to litigation commenced after its passage, but also to litigation existing at the time of passage.” Morabito’s Auto Sales v. Commonwealth, Dep’t of Transp., 552 Pa. 291, 715 A.2d 384, 386 (1998). Conversely, legislation affecting-substantive rights may not be so applied. See id.

*111¶ 15 Because the nature of the rights affected is dispositive, it must mark the beginning of our inquiry. The demarcation between laws bearing on substantive rights and those that are “purely procedural” is notoriously vexing and has fostered disagreement amongst generations of jurists. See Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147, 150 (1981) (“The attempt to devise a universal principle for determining whether a rule is inherently procedural or substantive in nature has met with little success in the history of our jurisprudence.”). “ ‘(I)n many situations procedure and substance are so interwoven that rational separation becomes well-nigh impossible.’ ” Lauden-berger, 436 A.2d at 150 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 559, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (Rutledge, J., dissenting)). Accordingly, our Supreme Court has been circumspect in adopting static analytical definitions, recognizing that they “would only be useful if ‘substance’ and ‘procedure’ were two ‘mutually exclusive categories with easily ascertainable contents.’ ” Laudenberger, 436 A.2d at 150 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 17, 61 S.Ct. 422, 85 L.Ed. 479 (1941) (dissenting opinion of Frankfurter, J., in which Black, Douglas, and Murphy, JJ., concurred)). In attempting to “unravel this Gordian knot,” Laudenberger, 436 A.2d at 150, the Court has cautioned against simplistic solutions:

The tacit assumption that the precise point at which the line between the two is to be drawn is the same for all purposes ... is of course connected with the other assumptions ... namely, that the ‘line’ is to be ‘discovered’ rather than ‘drawn’ and that it can be located without keeping in mind the purpose of the classification. If once we recognize that the ‘fine’ can be drawn only in the light of the purpose in view, it cannot be assumed without discussion that as our purposes change the line can be drawn at precisely the same point.”

Laudenberger, 436 A.2d at 150 (quoting W. Cook, Logical and Legal Bases of the Conflict of Law 158-159 (1942)).

¶ 16 I need not resolve the quandary this issue poses. Even as our jurisprudence on the point is murky, the Supreme Court’s language limiting retroactive application is patently clear. See 715 A.2d at 386. Litigation pending on the date new legislation is enacted is subject thereto if the legislation is “purely procedural.” Id. The Court’s choice of words is careful and considered, its direction insistent that only those laws without substantive aspect may be accorded retroactive application in the absence of contrary direction by the legislature. I am compelled to conclude accordingly that any doubt concerning the character and affect of legislation must be resolved against the extended reach of ret-roactivity in favor of prospective application only. Thus, should questions remain concerning a statute’s place in this dichotomy (or at the procedural end of a continuum), we are empowered to apply the statute only to litigation arising from causes of action that accrue after the statute’s effective date.

¶ 17 Because I find the effect of section 512 on plaintiff’s substantive rights pronounced, I cannot find it “purely procedural” and therefore view its application as doubtful. Almost by definition, this section works a seismic shift in the evidentia-ry landscape of medical malpractice cases and, in this case, has undermined the plaintiffs ability even to present her case for the putative violation of a vested right. See Stroback v. Camaioni, 449 Pa.Super. 395, 674 A.2d 257, 261 (1996) (quoting Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80, 83 (1980)) (“There is a vested right in an accrued cause of action.”). *112Thus, although the circumscription of expert testimony that section 512 mandates might be described as procedural by some, i.e., addressing methods by which rights are enforced, see Morabito’s Auto Sales, 715 A.2d at 384, I cannot join in so sanguine an approach. “Procedural law is undeniably an integral thread in the fabric of the law. As threads are woven into cloth, so does procedural law interplay with substantive law.” Laudenberger, 436 A.2d at 150. In my view, it is this symbiosis that our Supreme Court contemplated in limiting retroactive application to measures “purely procedural” in nature.

¶ 18 Because Section 512 effectively “raises the bar” on the character of proof required of a plaintiff to vindicate a substantive right, I cannot find it procedural, “purely” or otherwise. See Jaguay v. Workers’ Comp. Appeal Bd., 717 A.2d 1075, 1077 (Pa.Cmwlth.1998) (determining that “procedural statutes establish the method for enforcing a right, but have no bearing on whether a claimant has a legal entitlement to relief under the facts as they exist in a particular case”). Accordingly, I cannot conclude that section 512 is applicable to this or any- other claim pending on the date of its enactment. Hence, it does not properly control this disposition.

¶ 19 In view of the foregoing, I would reverse the trial judge’s decision and remand this matter for trial without prejudice to the defendant to seek disqualification of the plaintiffs expert at trial should the record substantiate his lack of expertise in the- matters at issue. Because the Majority declines this course, I am compelled to dissent.