Expert Witnesses • Notice • Hearsay • Failure to Produce

Chiodetti v. Fernandes, PICS Case No. 14-0452 (C.P. Philadelphia March 24, 2014) Colins, J. (12 pages).

Evidentiary rulings did not unfairly prejudice plaintiff and should be upheld on appeal.

Doctor operated on plaintiff’s right eye to repair an orbital fracture. Two days later, plaintiff lost permanent vision in that eye. Plaintiff filed a complaint in medical malpractice, alleging that his blindness resulted from doctor’s negligence in inadvertently injecting local anesthesia into plaintiff’s eyeball rather than into the surrounding orbit. Doctor denied all claims of negligence.

Plaintiff moved in limine to preclude exhibits–evidence from a retinal expert, and evidence from an eye surgeon–he claimed were never provided to him. Trial court denied the motion on the ground that plaintiff was not prejudiced by their introduction.

At trial, plaintiff’s expert testified that the standard of care when administering anesthesia to the eye requires a surgeon to verify the location of the needle by “wiggling” it in such a way to ensure that its tip is not inside the eyeball itself before injecting the medication. Since doctor did not “wiggle” the needle, he inadvertently injected anesthesia into the eye causing plaintiff’s blindness. Court sustained an objection on hearsay grounds to testimony that an article authored by plaintiff’s expert was peer reviewed.

Doctor testified, denying that he perforated the eyeball or that his injection method fell below the standard of care. Two experts also testified that doctor administered anesthesia to plaintiff properly and that the standard of care testified to by plaintiff’s expert, i.e., “wiggling” the needle, presented an unacceptable risk of injury. One expert also testified extensively on possible other causes of plaintiff’s blindness, many of which could not conclusively be ruled out.

Jury rendered verdict in favor of doctor. Plaintiff argued on appeal that he was entitled to either a new trial or judgment notwith-standing the verdict because trial court erred in its evidentiary rulings. In its Pa.R.App.1925(a) statement, trial court requested that its evidentiary rulings be upheld.

Plaintiff claimed that he was ambushed at trial because doctor never exchanged pre-marked exhibits, including slides used at trial to depict the anatomy of the eye. However, plaintiff was on notice well in advance of trial as to what exhibits doctor intended to use and failed to object when they were introduced.

Plaintiff also argued that testimony of retina expert was required to be excluded under Pa.R.E. 4003.5 as the report was produced 108 days late, in violation of court orders and without justifiable excuse. However, plaintiff had notice of the expert report well before trial, he had notice of the liability theory well before that, and he took the opportunity to prepare and submit a rebuttal. Plaintiff made no showing that introduction of this evidence unduly influenced jury in its deliberations or caused it to make decisions based on improper evidence. Thus, court properly denied the motion.

Plaintiff also argued that testimony of doctor’s second expert should have been precluded because he was not retained until the day before trial and that this belated decision constituted unfair surprise. However, expert’s report was available to plaintiff approximately six months before trial and was listed on doctor’s pre-trial memorandum approximately three months before trial.

Plaintiff further challenged one expert’s testimony as cumulative of the other. However, the experts were from different fields and while one testified as to the standard of care for the surgery, the other also addressed possible causes of plaintiff’s blindness, a separate subject of considerable dispute throughout trial. In any event, even if the testimony were duplicative it was well within the discretion of the court to allow it absent any showing of undue prejudice.

Finally, court did not err in precluding plaintiff’s reference in closing to doctor’s failure to produce witness he allegedly promised would appear (plaintiff’s other treating physician). Plaintiff was considering introducing physician’s testimony himself, but chose not to do so. Therefore, court’s ruling was consistent with the expectations of the parties. In any event experts on both sides testified without objection to the contents of treating physician’s clinical records, and since that testimony was subject to cross-examination, the record did not support a conclusion that precluding the adverse-inference argument, i.e., that jury could draw negative inference from doctor’s change in strategy, was unfairly prejudicial to plaintiff.