V. K. Young, et al. v. County of Lebanon Transit Authority, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Victor K. Young, Administrator of the Estate of Lisa M. Young, Deceased, and Victor K. Young, her husband, in his individual capacity, Appellant v. County of Lebanon Transit Authority and Ted Brownagle BEFORE: : : : : : : : : : : No. 286 C.D. 2007 Argued: September 4, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 25, 2008 Before the court is an appeal by Victor K. Young (Appellant), individually and representing the Estate of Lisa Young (Mrs. Young), from the judgment entered by the Court of Common Pleas of Lebanon County (trial court) after denial of Appellant s motion for a new trial. Appellant s motion sought a new trial on the basis that the trial court erred in excluding expert medical testimony concerning Mrs. Young s fingertip amputation. We affirm. Mrs. Young filed a complaint against Appellees County of Lebanon Transit Authority (COLT) and Ted Brownagle (Brownagle) for damages suffered as the result of an incident that took place aboard a COLT van. Appellant filed a claim for loss of consortium. On April 25, 2003, Mrs. Young, who was confined to a wheelchair, was traveling on a COLT para-transit van driven by Brownagle. The van was transporting her from the Good Samaritan Kidney Dialysis Facility to the Manor Care Health Services facility. While aboard the bus, Mrs. Young suffered injuries that included a broken left wrist. As treatment for this injury, Mrs. Young wore a splint. She then lost the tips of her left middle and index fingers, allegedly due to poor circulation caused by the wrist splint. Dr. Bryan Pilkington, a vascular surgeon, treated Mrs. Young s fingers. At trial, Appellees did not contest their alleged negligence. Instead, the main issues were causation and damages.1 Appellant offered the testimony of several experts, including Dr. David J. Overholt and Dr. Stuart Hartman. Dr. Pilkington was not offered by Appellant as an expert witness. Dr. Overholt, an orthopedic surgeon, treated Mrs. Young s right shoulder and left wrist. Dr. Hartman, a rehabilitative physician, met with Mrs. Young to provide a second opinion on her shoulder and wrist. During their trial depositions, both Drs. Overholt and Hartman discussed the amputation of Mrs. Young s fingertips. The trial court excluded the testimony of these two experts as it related to that amputation. Specifically, the following testimony of Dr. Overholt is at issue: BY MR. COYLE [Appellant s Attorney]: ¦. 1 Both parties agreed that because COLT qualifies as a local agency, this case is governed by the Act commonly referred to as the Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-8542. As such, Appellants were required at trial to prove permanent loss of bodily function, permanent disfigurement or permanent dismemberment in order to recover damages for pain and suffering. See 42 Pa. C.S. § 8553(c)(2)(ii). 2 Q. And, Doctor, what was the difficulty that the splint was causing? A. Well, it was holding her wrist immobilized and it was felt by the vascular surgeon that this was compromising blood flow to her her hand causing the loss of blood flow to the tip of her long finger and that s where she was having her problems. Q. And is there a problem in particular that developed from the loss of blood flow to the tip of the finger? MR. ORWIG [Appellee s Attorney]: Objection to this line of questioning. It appears that the questioning is going to going into an area of medical treatment that Dr. Overholt was not involved in and did not provide any treatment. BY MR. COYLE: Q. Can you answer that question, Doctor? A. She ended up having the tip of the finger amputated because of the loss of the blood supply. ¦. A. ¦ The wrist has been treated with a splint which caused necrosis of the fingertip. ¦ MR. ORWIG: Again, an objection as to medical testimony, diagnosis, prognosis concerning any treatment performed by Dr. Pilkington. BY MR. COYLE: Q. And Dr. Overholt, the term necrosis, what does that mean? A. Dead tissue. ¦ Reproduced Record (R.R.) at 178a-180a. The following testimony of Dr. Hartman is also at issue: A. [D]ue to wearing the left wrist brace from the fracture she lost the distal end or the tip of her left middle finger, and her left index finger also developed some problems after using pulleys in physical therapy after the injuries. MR. ORWIG: Excuse me, I d like to register an objection on the record relative to the reference to the finger problem and the issue concerning the left middle finger and left index finger. There s been no foundation. 3 Id. at 255a. After trial, the jury found that Appellee s negligence was the cause of Mrs. Young s injuries but found no permanent loss of bodily function and awarded no damages to Mr. Young for loss of consortium. Appellant then filed a Motion for Post-Trial Relief, alleging error by the trial court for excluding the fingertip testimony. In denying the motion, the trial court explained that neither expert had examined or treated Mrs. Young regarding her fingertips. Additionally, the trial court found that neither expert testified that they had relied on Dr. Pilkington s notes when forming their opinions. Finally, neither Dr. Overholt nor Dr. Hartman offered his own opinion regarding Mrs. Young s fingertips. As a result, the court found the testimony to have been properly excluded at trial because of a lack of foundation. As we acknowledged in Luzerne County Flood Protection Authority v. Reilly, 825 A.2d 779, 782 (Pa. Cmwlth. 2003), our Supreme Court has explained the standard used when reviewing a trial court s decision whether or not to grant a new trial: It is important to recognize that the trial court s decision whether to grant a new trial rests on its preliminary or predicate decision as to whether any reasons exist for granting a new trial. In other words, there are two levels to a trial court s decision whether to grant a new trial: First, the court must determine whether, colloquially speaking, a mistake (or mistakes) was made at trial. Second, the court decides whether the mistake (or mistakes) is sufficient basis for granting a new trial. The first decision whether a mistake was made may involve factual, legal, or discretionary matters. However, the second and ultimate decision whether to grant a new trial is always a discretionary matter because it requires consideration of the particular circumstances of the case. 4 An appellate court reviewing the decision to grant a new trial, therefore, essentially reviews the decision at two levels. First it examines the trial court s underlying decision as to whether a mistake was made ¦. ¦. [Next,] it reviews the decision to grant a new trial by applying an abuse of discretion standard ¦. In considering whether the record supports the trial court s decision, the appellate court is to defer to the judgment of the trial court, for the trial court is uniquely qualified to determine factual matters. Further, an abuse of discretion occurs not merely when the trial court reaches a decision contrary to the decision that the appellate court would have reached. Rather, an abuse of discretion occurs when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Morrison v. Department of Public Welfare, 538 Pa. 122, 133-35, 646 A.2d 565, 571-72 (1994) (citations and footnotes omitted). The same analysis applies to a review of a denial of a new trial. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). Applying this standard, we turn to the legal analysis. It is well-settled that an expert can base his opinion on the reports of others, not in evidence, if they are of the type that the expert ordinarily relies upon in his profession in making professional judgments. See Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971); see also Christy v. Darr, 467 A.2d 1362 (Pa. Cmwlth. 1983). Pennsylvania Rule of Evidence 703 instructs that: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in 5 forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Pa. R.E. 703 (adopted 5/8/98). In Primavera v. Celotex, 608 A.2d 515 (Pa. Super. 1992), however, the court held that an expert witness may not serve as a mere conduit for the opinion of another. A cardinal principle governing the admissibility of an expert opinion is that it be based upon a factual foundation. Foster v. McKeesport Hosp., 394 A.2d 1031, 1033 (Pa. Super. 1978). In Foster, the Superior Court concluded that the trial court properly excluded expert testimony that merely quoted the report of another doctor. An expert [is not] permitted simply to repeat another s opinion or data without bringing to bear on it his own expertise and judgment. Obviously in such a situation, the non-testifying expert is not on the witness stand and truly is unavailable for cross-examination. Primavera, 608 A.2d at 521 (footnote omitted). In Primavera, the court permitted the expert s testimony because the expert, in addition to making normal and reasonable reliance on other sources, used personal observation, knowledge and experience. Id. An examination of Dr. Overholt s deposition reveals that the trial court properly excluded his testimony regarding the amputation of Mrs. Young s fingertips. Dr. Overholt failed to do anything other than simply repeat Dr. Pilkington s diagnoses. Dr. Overholt did not testify that the opinion of a vascular surgeon such as Dr. Pilkington is one that he would normally rely on in the course of treatment, or that he relied on Dr. Pilkington s opinion in treating Mrs. Young. Furthermore, Dr. Overholt failed to express his own opinion regarding the cause of the loss of the fingertip. Rather, he only offered the hearsay2 opinion of Dr. 2 Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa. R.E. 801. 6 Pilkington, whose credibility cannot be judged by the jury. Thus, it is irrelevant that, at the end of his testimony, there is a catch-all response that all of his opinions are made to a reasonable degree of medical certainty. R.R. at 193a. We also reject Appellant s argument that Dr. Overholt expanded upon Dr. Pilkington s opinion by stating that a loss of blood flow caused necrosis of the fingertip. Id. at 180a. Read in the context of his entire testimony, this statement is, at most, a review of Mrs. Young s medical history; it does not constitute an opinion as to causation. Therefore, since Dr. Overholt did not rely on Dr. Pilkington s opinion in forming his own opinion as to causation, Dr. Overholt s fingertip testimony was properly excluded. Turning to the testimony of Dr. Hartman, the deposition transcript supports the trial court s exclusion of his fingertip testimony. While reviewing Mrs. Young s medical history, Dr. Hartman notes the problems that she had with her fingertips. See id. at 255a. However, although Dr. Hartman states that he relies on patient history and records when making a diagnosis, see id. at 261a, he never indicated that he relied on Dr. Pilkington s records, nor articulated his own opinion regarding the cause(s) of the loss of Mrs. Young s fingertips. Indeed, other than noting that her records reflected that she lost her fingertips due to use of a brace and physical therapy, he failed to further discuss the condition or provide his own opinion on the subject. As stated earlier, an expert cannot introduce the data or opinion of another unless the expert also uses his own knowledge and judgment. See Primavera, 608 A.2d at 521. Dr. Hartman s testimony does not reveal that he explicitly or impliedly used any report or diagnosis by Dr. Pilkington, or any other information related to Mrs. Young s fingertips, to produce his own expert opinion, which dealt with her shoulder and wrist. 7 As the trial court properly excluded the fingertip testimony of Drs. Overholt and Hartman, it clearly did not abuse its discretion in deciding not to grant a new trial. Accordingly, the judgment of the trial court is affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Victor K. Young, Administrator of the Estate of Lisa M. Young, Deceased, and Victor K. Young, her husband, in his individual capacity, Appellant v. County of Lebanon Transit Authority and Ted Brownagle : : : : : : : : : : No. 286 C.D. 2007 ORDER AND NOW, this 25th day of January, 2008, the judgment of the Court of Common Pleas of Lebanon County in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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