Vicari v. Spiegel

Justice SAYLOR,

concurring.

I would find any MCARE-based objection waived for failure to raise it in a timely manner.

In this regard, this Court has explained that the primary purpose of the requirement of a timely and specific objection is to ensure that the trial court has the opportunity to correct alleged trial errors. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974). Other courts have also stressed that a timely and specific objection also affords an opposing party the opportunity to address the objection and, where appropriate, to cure a defect. See generally 75 Am.Jur.2d Trial § 312 (2008) (collecting cases).

Gbur v. Golio, 600 Pa. 57, 76 n. 12, 963 A.2d 443, 455 n. 12 (2009) (Opinion Announcing the Judgment of the Court). Here, it was not until Dr. Blum had completed his testimony and the plaintiffs record was closed that Appellants decided to place the court on notice that they viewed him as unqualified to render an expert opinion concerning whether they had breached the appropriate standard of care. By this time, it was too late for Appellee to cure any alleged deficiency in the witness’s qualifications.1

*402To the extent, moreover, that the majority’s decision to dispose of the salient interpretive legal question on the merits can be justified as a salutary measure undertaken to provide guidance to the bench and bar, I am not opposed to such an effort, although I have previously articulated my belief that any holding should be applied prospectively only, and only to parties that have preserved the issue. See Phillips v. Cricket Lighters, 576 Pa. 644, 665, 841 A.2d 1000, 1012 (2003) (Saylor, J., concurring). As it turns out, the Court’s present determination of the merits of that issue leads to the same disposition as if the case were expressly decided based upon waiver— affirmance of the Superior Court’s order. Accordingly, I am able to concur rather than dissent relative to the mandate.

As for the merits, I agree with the majority to the degree it expressly adopts the principles set forth in the Opinion Announcing the Judgment of the Court in Gbur. See Majority Opinion, at 390, 989 A.2d at 1283 (quoting Gbur, 600 Pa. at 83-84, 963 A.2d at 459). These precepts were intended to convey that the focus of subsection (e) is centered upon the relatedness of the fields of medicine as such, rather than the specific care at issue. In the next paragraph, however, the majority articulates a further holding that appears to be in some tension -with Gbur. The majority indicates that the “relatedness” inquiry implicates “the specific care at issue” only. This seems difficult to reconcile with the pronouncements of the prior paragraph to the effect that the fields of medicine must be so closely intertwined that by their very nature they will *403tend to have substantially similar standards of care. In this regard, I note that the “substantially similar standard of care for the specific care at issue ” rubric is used only in subsection (c), see 40 P.S. § 1303.512(c)(1), (2) (emphasis added), and not in subsection (e), where the focus instead rests on the relatedness of the fields of medicine as such. Thus, while I generally support the majority’s interpretive efforts, I respectfully decline to join its analysis to the degree it can be understood to construe the exception provided by subsection (e) as permitting testimony by a medical expert whose field of specialty is not closely related to that of the defendant physician pursuant to the principles expressed — and presently adopted — in Gbur.

Justice EAKIN joins this concurring opinion.

. The facts in the present case are arguably even more compelling than in Gbur. After Appellee offered Dr. Blum as an expert witness and examined him on voir dire concerning his qualifications, Appellants cross-examined him on voir dire regarding his background and qualifications, particularly as they related to the professional activities of Drs. *402Spiegel and Anne. The defendants both concluded their cross-examination by informing the court, "That’s all I have at this time.” See N.T. May 1, 2006 at 73, 75; RR. 396a, 398a. In short, they declined to interpose any objection to the admission of Dr. Blum's testimony, although they were well aware of the purpose of that testimony and of the restrictions set forth in the MCARE Act. Additionally, Dr. Anne had moved in limine before trial to preclude Dr. Blum's testimony only to the extent it would rest upon medical literature published after the time of treatment. See RR. 202a. In her motion she made no mention of the MCARE Act. See generally Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999) ("[Ilf the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived.”); Commonwealth v. Smith, 604 Pa. 126, 158, 985 A.2d 886, 904 (2009) (same as to pre-trial severance motions).