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The two-witness rule used to prove perjury in criminal law in Pennsylvania does not apply when a losing party in a civil matter, in demanding a new trial, seeks to demonstrate that perjured testimony tainted the original trial, the state Superior Court has ruled. In so holding, the panel in Berger v. Schetman rejected a local med-mal plaintiff’s contention that the Montgomery County judge who presided over her original trial held an ex parte conversation with a defense medical expert — who happened to be the judge’s personal physician �- in which the expert allegedly indicated that he had, partway through the trial, concluded that the defendant had committed malpractice. “In our assessment, it is improper to apply the two-witness rule, a burden placed on the prosecution in a criminal case to establish perjury under the Crimes Code, to a civil case where it is alleged, as grounds for a new trial, that a witness lied under oath,” Superior Court Judge John T. Bender wrote for the court. “Pennsylvania has very little case law instructive on the circumstances before us but, of the civil cases we have examined, none have imposed on the complaining party the burden of establishing perjury via standards employed in criminal cases.” Affirming the decision not to grant the plaintiff a new trial, the judges agreed that the plaintiff and her counsel had misinterpreted comments the trial judge made to them — in an ex parte conversation that occurred immediately after a defense verdict was handed up by the jury — concerning the judge’s conversation with the defense expert. According to attorneys involved in Berger, Montgomery County Judge Samuel W. Salus II, now retired, presided over the trial in the matter. “Although [plaintiff Carol Berger's] and [plaintiff's trial counsel James Foerstner's] testimony paralleled the version of the conversation with [Salus] as they recalled it in their affidavits � [Salus] and [defense expert George] Romanzo testified to a different version in which Dr. Romanzo did not waver from his expert opinion that [defendant doctor William Schetman] did not deviate from the standard of care,” Bender said. Bender was joined by President Judge Joseph A. Del Sole. In a concurring statement, Senior Judge Peter Paul Olszewski took Salus to task over both ex parte conversations at issue in the case, calling them “entirely inappropriate.” The judges chose to affirm the order denying Berger’s request for a new trial that was made by Bucks County Senior Judge R. Barry McAndrews, who presided over a summer 2004 evidentiary hearing ordered by the Superior Court following Berger’s original appeal of the jury verdict in Schetman’s favor. According to Bender’s opinion, Berger, a diabetic, sued Schetman over an alleged misdiagnosis of a broken bone in a foot in which she had lost feeling. Berger claimed that when she consulted Schetman in June 1994 about her foot, which was swollen and black and blue, he diagnosed her with a tissue infection. However, Berger said that while visiting relatives in Kansas roughly a month later, she sought medical care as her condition worsened and was diagnosed with a fractured foot. She said that she was told that the bone was so fractured that it had been partially absorbed by her body, and she claimed that she was permanently disabled, the court said. According to the opinion, Berger and Foerstner, a Beasley Firm attorney, stated in their affidavits that Salus had talked to them in the hallway outside the courtroom after the deliberations were finished and told them that during the trial, he had had a conversation with Romanzo during which the doctor informed Salus that he believed the case was defensible when he first reviewed the files, but had since come to the realization that Schetman had committed malpractice. During his testimony at the evidentiary hearing, according to Bender’s opinion, Salus said that he saw Berger in the hallway post-verdict, that she was visibly upset, and that he attempted to console her. He said that he told her he thought she had a good plaintiff’s negligence case and “kind of indicated what my state of mind would have been had I been a juror.” He then related to her and Foerstner an exchange he had had with Romanzo at a court elevator bay immediately after the doctor left the stand, Salus testified, according to the opinion. Romanzo asked the judge about his health, and then the conversation turned to Berger. Salus said that he asked Romanzo whether Schetman’s failure to order an X-ray of Berger’s foot didn’t indicate some degree of medical malpractice. Salus said Romanzo told him he couldn’t “completely disagree with” him, but Salus also strongly asserted that Romanzo had never at any point told him that he felt there had been any malpractice, the court said. When Romanzo appeared at the evidentiary hearing, according to the opinion, he testified that Salus told him that he believed Berger’s case, compared to others that had recently come before him, appeared to have some merit. According to the opinion, Romanzo said he then told Salus that he felt there was a possibility that Berger could win the case. But Romanzo was also clear during his testimony that he never indicated to Salus that he believed Schetman had committed malpractice, the court said. The panel agreed with Berger that McAndrews had employed the wrong standard in determining whether Romanzo had committed perjury. But the judges did hold that McAndrews had not abused his discretion in denying Berger’s motion for a new trial. “The evidentiary hearing judge considered the inconsistencies argued by Ms. Berger and found them unpersuasive,” Bender wrote. In his concurring statement, Olszewski said that he wrote separately in order to “express my great concern over the improprieties of the underlying ex parte communications at issue here.” “Certainly a trial judge should not be prevented from exchanging pleasantries with persons outside of court; however, specific communications about in-court legal matters are not acceptable ex parte topics of conversation, and such communication should not be repeated or condoned.” Paul Lauricella of The Beasley Firm represented Berger on appeal. His client died before the second Superior Court hearing on her case, he said. “I think that when we undertook the appeal, we knew that it was a long shot, politely speaking, that we’d be able to convince an appellate court that a trial judge and an expert witness licensed physician had committed misconduct,” he said. The panel’s holding will most likely not be appealed, he added. Defense attorney Gregory Nesbitt of Kilcoyne & Nesbitt in Plymouth Meeting said that though it was never found that Romanzo had lied or recanted any of his testimony, the case shows how ex parte discussions “are subject to distortion after the fact.”

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