Hearsay Issues: Very Important!!!

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Hearsay Issues: Very Important!!!

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Lawrence v. Synthes Inc.
Not Reported in A.2d, 2002 WL 32747667
Pa.Com.Pl.,2002.
July 25, 2002

MAHON, J.
*1 AND NOW, this 22 day of July, 2002, on consideration of the Motions of the parties described below; the documents including written argument, photocopies of reported and unreported judicial decisions primarily adjudications of various of the United States District Courts, deposition transcripts and excerpts thereof, medical records, answers to written interrogatories, expert witness reports, and affidavits filed in support thereof; the responses and documents including written argument, deposition transcripts and excerpts thereof, medical records, minutes of meetings of various medical professional societies concerned with treatment of conditions of the spine, abstracts of articles appearing in medical journals, expert reports, industry and trade materials having to do with Defendant Synthes, Inc. and its products of manufacture, answers to interrogatories, photocopies or reported and unreported judicial decisions, and affidavits filed in opposition thereto; and following more than four (4) hours of oral argument conducted on April 19, 2001, we enter the following:



OPINION

A precis of the factual context of this litigation may be found in the opinion filed in support of the February 29, 2000 order of the Pennsylvania Superior Court; reversing the January 20, 1999 order of this court dismissing the Plaintiffs' FN1 cause as barred by the applicable statutory period of limitations; and remanding the record for further proceedings.


FN1. As we will discuss, the plaintiffs at the initiation of this litigation were Paul and Linda Lawrence, husband and wife. Linda Lawrence's claims against all defendants were limited to loss of consortium; all other claims being those of Paul Lawrence who underwent the instrumented fusion surgery alleged to be the proximate cause of injury. By stipulation of all parties docketed on July 19, 2001, the loss of consortium claims of Linda Lawrence were voluntarily withdrawn. In the discussion that follows, references to “Plaintiffs” in the plural should be understood as Paul and Linda Lawrence as the parties plaintiff during all limes prior to July 19, 2001; and references to a singular “Plaintiff” without other qualification should be understood as Paul Lawrence as the remaining party plaintiff and as the principal plaintiff throughout. Where the context might lead to ambiguity, references to “Paul Lawrence” or “Lawrence” are adopted in the interest of clarity and without disrespect.


Paul and Linda Lawrence bring this action for the recovery of damages against appellee Synthes, Inc., for the injuries caused by defective screw devices, against F. Todd Wetzel, M.D. and the Milton Hershey Medical Center for malpractice and the failure to secure an informed consent.

The underlying factual history of this litigation commenced on November 16, 1988, when appellant Paul Lawrence sought treatment of back and leg pain and was examined by appellee F. Todd Wetzel, M.D. After a course of seven months of tests and examinations, Dr. Wetzel performed a fusion upon the spine of appellant using the pedicle screw fixation device of appellee Synthes, Inc., composed of four screws and two plates. Appellant continued in the care of Dr. Wetzel until, at least, December 4, 1992, when he was seen by Nancy A. Brown, M.D. and Bruce Nicholson, M.D., upon referral by Dr. Wetzel and then, subsequently came into the care of James Morrissey, M.D., who performed a further spinal fusion procedure and attempted to remove the screws but was only partially successful. Appellants commenced the instant action on September 23, 1994 by writ of summons.

Slip Op. at 1-2.

Now before the Court are a series of pre-trial motions interposed by various parties to this litigation. The motions now ripe for decision include:

1) The Plaintiffs' motion for change of venue filed on March 15, 2000;

2) The motion of Defendants the Milton S. Hershey Medical Center (“Hershey”) FN2 and Dr. F. Todd Wetzel M.D. (“Wetzel”) filed on December 18, 2000 FN3 for bifurcation;


FN2. The following description of the Milton S. Hershey Medical Center, now associated with the Penn State University, appears at URL http://www.hmc.psu.edu/: “Founded in 1963 with a gift from The Milton S. Hershey Trust. Today, Penn State Hershey Medical Center is one of the leading teaching hospitals in the country. The 504-bed medical center annually admits nearly 20,800 patients, conducts more than 497,229 outpatient visits, conducts more than 25,600 emergency room visits and performs more than 15,455 surgical procedures”

Hershey also presented a separate motion for summary judgment on January 15, 1999 in which it contended that Plaintiff had failed to adduce the necessary expert opinion evidence critical of the care provided by the facility. It is unnecessary that we resolve the issues raised by this motion, however, inasmuch as, by stipulation of all parties filed on April 23, 2001, Plaintiff's claims against Hershey wore voluntarily discontinued and the center was dismissed as a party to these proceedings. We will continue to refer to Hershey in describing those procedural events which occurred during the period prior to its dismissal.


FN3. In which Defendant Synthes joined by motion filed on January 18, 2001.


*2 3) A dispositive motion for summary judgment filed on December 15, 2000 on behalf of Defendant Synthes, Inc. (“Synthes”) with respect to all of the Plaintiffs' claims;

4) The Plaintiffs' motion for partial summary judgment filed on December 15, 2000 against Defendant Synthes on the issues of failure to warn, negligence, negligence per se, negligent misrepresentation, and to create and impose a presumption of causation;

5) The motion of Defendants Hershey and Wetzel filed on December 18, 2000 for partial summary judgment with respect to the Plaintiffs' conspiracy claim;

6) The Plaintiffs' motion in limine filed on December 5, 2000 seeking “to preclude any reference [to] or reliance on the final rule [of the United States Food and Drug Administration (“FDA”) promulgated at] 63 [F.R.] 40023 et seq. (July 27, 1998)”; FN4


FN4. By which pedicle screw devices like those here at issue and used in instrumented spinal fusion surgery were, for the purposes of the Medical Device Amendments of 1976 (“MDAs”) to the Food, Drug, and Cosmetic Act of 1938; 21 U.S.C. §§ 360c-360k, reclassified from Class III which, as devices implanted in the human body and posing a potentially unreasonable risk of injury (see 21 U.S.C. § 360c(a)(1)(C); 21 CFR § 360.3(c)(3)) subjected the devices to the most stringent of the FDA's regulatory oversight including the requirement of pre-market authorization (see 21 U.S.C. § 360e, 21 CFR § 814.1(c)); to Class II which includes no such requirement for prior approval but subjects the devices to certain performance standards, postmarket surveillance, and use guidelines. See 21 U.S.C. § 360c(a)(1)(B), 21 CFR § 860.3(c)(2).


7) The motion in limine of Defendants Hershey and Wetzel filed on December 18, 2000 FN5 to preclude the introduction at trial of hearsay evidence in the form of “published articles, textbooks and medical studies”;


FN5. In which Defendant Synthes joined by motion filed on January 18, 2001. A similar motion in limine was filed by Defendants Hershey and Wetzel on January 15, 1999 and remains outstanding.


Cool The motion in limine of Defendant Synthes filed on January 18, 2001 and seeking to preclude the use at trial of such terms as “experimental”, “unapproved”, “investigational” and the like in referring to the Synthes devices here implanted in Paul Lawrence or to pedicle screws generally;

9) The motions in limine of all Defendants seeking to preclude the introduction at trial of the testimonial and other evidence prepared or offered by the Plaintiffs' expert witness Dr. Carl Larson, Ph.D.; FN6


FN6. Dr. Larson, now deceased, gave in 1995 and 1996 a deposition in the MDL 1014 litigation before the United States District Court for the Eastern District of Pennsylvania. A so-called “generic” deposition. Dr. Larson's discovery evidence was to be available generally to all of the cases consolidated by the federal court. The Plaintiff also seeks to make use at trial of an expert report apparently authored by Dr. Larson and dated November 18, 1998 in the matter of Plaintiffs' claims here at issue. Defendant Synthes first moved for preclusion of the Larson evidence on January 15, 1999. A similar motion was interposed by Defendants Hershey and Wetzel on December 18, 2000 in which Defendant Synthes joined; thereby renewing its motion, on January 18, 2001.


10) The motions in limine of all Defendants seeking to preclude the introduction at trial of the testimonial and other evidence prepared or offered by the Plaintiffs' expert witness Lance Yarus, D.O.; FN7 and


FN7. Filed by Defendant Synthes on December 15, 2000 and by Defendants Hershey and Wetzel on December 18, 2000.


11) The motions in limine of all Defendants seeking to preclude the introduction at trial of the testimonial and other evidence prepared or offered by the Plaintiffs' expert witness Harold Alexander, Ph.D.; FN8


FN8. Filed by Defendant Synthes on December 15, 2000 and by Defendants Hershey and Wetzel on December 18, 2000.


The extensive pre-trial record; which includes thousands of pages of transcribed depositions and documentary evidence as well as thorough research and written argument FN9 with respect to each of the issues presented, reveals the factual background in considerable detail. A brief summary will suffice for these introductory purposes.


FN9. Including two bound volumes of unreported judicial opinions submitted by Defendant Synthes and two bound volumes of documentary exhibits presented by Plaintiffs in opposition to Defendant Synthes' motion for summary judgment.


This is one of hundreds of individual cases that were initiated throughout the Commonwealth in which certain medical devices; referred to variously as “orthopedic bone screws” and as “pedicle screws” on account of the particular structure of the spine (bony protuberances on each side of each vertebrae) in which they are inserted to provide stability and immobilization during the period immediately following spinal fusion surgery, are alleged to have injured the patients in whom they were implanted. Defendant Synthes attributes the timing and volume of litigation to a report aired in December 1993 on the ABC News television program “20/20”.FN10 Appended hereto as Appendix “A” are excerpts from the transcript of the said television program which concerned, specifically, a medical device denominated the “Steffe Plate FN11 and Screws FN12 in recognition of their inventor and the former chairman of AcroMed, Corporation; FN13 Dr. Arthur Steffe. AcroMed's device made the subject of the “20/20” broadcast, like the Synthes device here at issue, includes a metal plate and threaded fasteners or screws by which the plate is attached to the pedicles on either side of the spine thereby immobilizing and stabilizing the vertebrae so that fusion can occur.


FN10. See, for example, Defendant Synthes' Momorandum of Law in Support of its Motion for Summary Judgment filed December 15, 2000 at page 3.


FN11. U.S. Patent No. 4,696,290.


FN12. U.S. Patent No. 4,854,311.


FN13. On October 17, 1997, Judge Bechtle for the MDL court approved a $100 Million settlement of all “bone screw” claims against AcroMed.


*3 Spinal fusion is a surgical procedure indicated for the most severe and intractable back pain (as well as certain other conditions and deformities not here involved) where more conservative measures and modalities have failed. A one-level fusion links or fuses together two vertebral bones on either side of an offending disk. A two-level fusion links or fuses together three vertebral bones with two intervening disks. In order to accomplish the fusion, FN14 the surgeon typically “harvests” bone chips from the patient's hip FN15 as was done in this case FN16 and inserts these chips in the space between the vertebrae to be immobilized.FN17


FN14. Which can be understood as conceptually similar to a weld or bridge of solid bone.


FN15. Referred to as the iliac crest of the pelvis.


FN16. Alternatively, allegraft bone from a bone bank can be used for this purpose but is often less successful in accomplishing the desired fusion.


FN17. After “decompression” or surgical removal of the flexible structures located between healthy vertebrae known as the “disk”.


The inserted bone chips cause the formation of new bone thereby “cementing” the adjoining vertebrae one to the other and eliminating the movement which is believed to be the origin of the patient's pain. A solid bridge of bone eliminates motion that normally would take place at the disc space and in the joints of the spine. Where this process is successful, the new bone weld or bridge is termed a “fusion” or “arthrodesis”. Where the surgery is unsuccessful on account of the failure of new bone to form as intended, the soft and flexible tissue that forms between the vertebrae instead of the intended bone is termed a “pseduarthrosis” which is insufficiently rigid to provide stability, prevent movement or, therefore, to eliminate the patient's pain. The causes of such failure are incompletely understood. However, it is well-established that patients who smoke tobacco are less likely to be able to form the desired bony fusion and are more likely to suffer from a psedoarthrosis following spinal fusion surgery. At the time of his surgery in June, 1989, Paul Lawrence was then smoking and had smoked for many years one and one-half to two packs of cigarettes per day.FN18 According to the American Academy of Orthopedic Surgeons about 258,000 spinal fusions were performed in 1999: about 119.000 procedures involving the upper (cervical) spine; and about 139,000 involving the lower (lumbar) spine.


FN18. Lawrence Dep. at 2.


An “instrumented fusion” is one in which the surgeon employs a device or combination of devices like those manufactured by Synthes and AcroMed for the purpose of stabilizing and immobilizing the spine to facilitate fusion. Prior to the widespread acceptance of instrumented surgeries, spinal fusion typically involved multi-staged surgical procedures requiring hospitalization for one month or more; and total immobilization of the patient by means of a heavy plaster full-body cast for periods up to a year; the initial eight to ten months of which period were spent bedridden. Bracing therapies were also then in use in which patients were isolated and immobilized both before and after surgery by confinement in unwieldy metal and plaster apparatus to which they were firmly attached from the backs of their heads down to their hips. Some scoliosis patients now uniformly treated by means of instrumented surgeries were then subjected to so-called “halo-femoral traction”, in which screws placed in their skulls and knees were increasingly pulled apart during weeks of torture in rotating hospital beds in an attempt, often unsuccessful, to mechanically straighten the spine.

*4 Fusion surgery can be employed with respect to any region of the spine. The five (5) vertebrae and six (6) disks located in the lower back and connecting the upper spine to the pelvis are known as the “lumbar” spine. A lumbar fusion like that here at issue, can be achieved in a variety of ways and through several different approaches to the spine involving an incision through the patient's abdominal wall, flank, back, or a combination of these approaches.FN19 In this context, the term “anterior” means “from the front” and “posterior” means from the back. Another technique often used in lumbar fusions involves placing a bone “graft” along the sides of the spine (with or without plates and screws); termed a “posterolateral” fusion. The surgeon's description of the procedure performed on Paul Lawrence on June 22, 1989 at the Hershey Medical Center is “Posterolateral fusion L4-5 using iliac crest bone graft and AO FN20 instrumentation” referring to the particular lumbar vertebrae sought to be immobilized.FN21


FN19. As Wetzel testified: The fusion could be done by any of a number of routes. It could be done from behind. It could be done from the front. Bone graft could be placed in the disc space, or bone graft could be placed posteriorly out to the sides. It could be done with Instrumentation or it could be done without Instrumentation.” Wetzel Dep. at 81. In the Spring of 1989, however, Wetzel did not perform anterior (that is, from the front) fusion surgeries for the Plaintiff's condition. Id.


FN20. The Acronym “AO” stands for the name of an organization which, in German, is known as Arbeitsgemeinschaft for Osteosynthesefragen which. In English, can be translated as Association for the Study of Internal Fixation and is often referred to by the acronym “ASIF” or “AO/ASIF”. AO International describes itself as: “A non profit organization dedicated to improving the care of patients with musculoskeletal injuries and their sequelac, through research, development, education and quality assurance in the principles, practice, and result of fracture treatment.”

Similarly, the Mission Statement of the AO Foundation is “To improve the treatment of patients with trauma and disorders of the musculoskeletal system through Research, Development, Evaluation, Education and Quality Assurance”. In his document styled “Plaintiffs' Opposition To Defendant Synthes, Inc.'s Motion For Summary Judgment” at 2n.2 the Plaintiff asserts without record reference or other attribution: “Prior to plaintiff's surgery in 1989. Synthes, Inc. and ASIF Holding formed a partnership wherein Synthes, Inc. became 60% owner of Synthes, USA.”


FN21. Wetzel operative notes. See Wetzel Dep. at 100. See also, for example, P-26; August 20(sic), 1990 letter from Wetzel to Mark D. Myors, OTR/L at page 2. The procedure is further described with particular reference to the Synthes devices employed, by Dr. William M. Iannacone, M.D., Ph.D., Chief, Division of Orthpaedic Surgery, Cooper Health System, University of Medicine & Dontistry of New Jersey, Robert Wood Johnson Medical School of Camden, in a letter to Defendant Synthes' counsel dated December 17, 1998, as follows: The procedure consisted of L-4/L-5 lumbar decompression with posterior lateral fusion of L-4/L-5 using two-two hole Dynamic Compression Plates and four 6.5 mm fully threaded cancellous bone screws, 45 mm in length.” The term “cancellous” refers to the type of bone represented by the spinal pedicles; that is, with a lattice-like internal structure.


This case, together with several hundred similar cases initiated in this and other of the Commonwealth's Courts of Common Pleas “concerning claims for injuries arising from bone screws implanted in the pedicle during back surgery” was, by order of the Honorable Sandra Moss dated September 6, 1994, consolidated before the Court of Common Pleas of Philadelphia County to Docket No. 9408-0002 captioned In Re: Orthopedic Bone Screw Litigation, for purposes of pleading and discovery. In addition, more than 2,000 civil actions in which the plaintiffs alleged that they were injured by the implantation of orthopedic bone screws in the pedicles of their spines, were filed on behalf of over 5,000 individuals in approximately sixty of the ninety-four federal judicial districts; were consolidated in August, 1994 and docketed to MDL No. 1014 by the Multidistrict Litigation Panel pursuant to 28 U.S.C. § 1407; and were transferred to the United States District Court for the Eastern District of Pennsylvania for pretrial management before the Honorable Louis Bechtle, Judge. All of these cases; both state and federal were, following the completion of discovery, remanded to the transferor courts for adjudication of dispositive and other case-specific motions and, ultimately if required, for trial on the merits.

The instant action was commenced by writ of summons filed on September 23, 1994 followed by a form complaint filed on July 20, 1995 and was subject to the jurisdiction of the Philadelphia Court of Common Pleas during the period from the filing on October 27, 1994 of a praecipe for coordination until return of the record to this Court on February 9, 1995.

As we have noted, the Plaintiffs are Paul Lawrence and his wife Linda; residents of Douglassville, Berks County since 1966, where they raised two sons. (Lawrence Dep. at 13). Paul Lawrence was born June 11, 1938 ( Id. at Cool; graduated from Owen J. Roberts High School in 1957 ( Id. at 22); began working for a local manufacturing enterprise Dana Corporation,FN24 in 1965 or 1966 ( Id. at 23-24); FN25 and worked there steadily until severe back pain required him to take a medical leave in 1988 ( Id. at 42). The particular incident to which the Plaintiff attributes his initial back injury took place at work in February, 1985 when he lifted a box weighing some one hundred pounds FN26 from a pallet and heard something “snap”. ( Id. at 39).


FN24. Dana Corp, has manufacturing facilities in Pottstown and Reading with the former involved in the manufacture of motor vehicle drive shafts and the latter producing heavy-duty truck frames. Lawrence Dep. at 117-118.


FN25. Wetzel understood that Paul Lawrence was, at least during some of his time at Dane Corp., a forklift operator. Wetzel Dep. at 76.


FN26. The weight of the box is described in the pre-trial record variously as weighing between eighty and “more than one hundred” pounds.


*5 The Plaintiff was initially treated conservatively by a chiropractor until April, 1986 and, thereafter, by a non-defendant physician until June, 1988 FN27 at which time his employer required a second medical opinion the substance of which was that the Plaintiff required surgical intervention. FN28 The Plaintiff was then referred to the Defendant Milton S. Hershey Medical Center where he was examined by Defendant Dr. F. Todd Wetzel, M.D. FN29 The Plaintiff was at that time experiencing continuous, severe pain. FN30 Wetzel ordered various tests but was initially unable to reach a diagnosis.FN31 A discogram FN32 was ordered which provided compelling evidence to Wetzel that the source of the Plaintiff's pain was the disk at L-4/ L-5 and that the immediately adjacent disks both above and below were not causing any of the discomfort.FN33


FN27. The medical records of Dr. G.J. Lignolli, M.D. are identified as the Plaintiff's Exhibit No. 25 offered by Affidavit of Plaintiff's counsel in opposition to Synthes Motion for Summary Judgment. These exhibits are referred to hereinafter in the form: “P-[Exhibit # ]” or, in this instance, P-25.


FN28. See P-25; June 20, 1988 office note)


FN29. Sometimes referred to hereinafter without disrespect as “Wetzel”.


FN30. Lawrence Dep. at 45-48.


FN31. See P-26; Letter from Wetzel to Dana Corp. dated January 11, 1989.


FN32. A discogram is a medical diagnostic test to determine the anatomical source of law back pain in which the discographer inserts a needle in the patient's back into the center of the suspect disk; injects radiographic dye, and solicits the patient's description of the nature of the pain thereby produced. If the dye injection recreates the pain typically experienced by the patient (concordant pain), it is inferred that an abnormality of the specific disc injected is the source of pain. If the pain produced by the Injection is unlike the pain typically experienced (discordant pain) it is inferred that the dise injected with dye, whatever its appearance on x-ray or MRI study, is not the source of the patient's pain. The test itself is painful and the patient must be awake throughout the procedure in order to report to the discographer whether the pain generated by the injection is concordant or discordant. At this time Hershey was not equipped to perform discography and, therefore, the Plaintiff was referred in January, 1989 to a Dr. Charles April in New Orleans, Louisiana for performance of the test. See P-26; Dr. Gregory Lignolli, M.D. office note of January 11, 1989. See Wetzel Dep. at 74.


FN33. Wetzel Dep. at 78-79. See P-26; April 11, 1989 Wetzel outpatient visit note.


As we have indicated, on June 22, 1989,FN34 Wetzel performed on the Plaintiff an instrumented lumbar spinal fusion at L-4/ L-5 implanting the Synthes plate and screw devices.FN35 Wetzel predicted that a full year following surgery would be required for complete recuperation.FN36 X-ray studies performed during and immediately following surgery as well as in August and September 1989 disclosed no structural abnormalities and proper alignment of the Synthes instrumentation.FN37 When examined at the beginning of January 1990, the Plaintiff's reported symptoms indicated improvement. The sensation in the Plaintiff's back previously reported as severe pain and burning was apparently now described by him as “pressure” limited in frequency and duration to the period of daily exercises (which the Plaintiff, nevertheless, was apparently able to perform) and while walking. Relief could be obtained by pressing the affected area.FN38 X-ray studies performed on the same date indicated no change from prior findings in September 1989. FN39


FN34. Surgery was originally scheduled for June 14, 1989 but a “scheduling mix-up” required it to be cancelled and the patient discharged. Wetzel Dep. at 98-99. See P-26 June 16, 1989 discharge summary dictated by Harlan Daubert, M.D. for Wetzel as attending physician.


FN35. P-23; Wetzel Dep. at 100-103.


FN36. See P-26; letter dated May 1, 1989 from Wetzel to Vicloria L. Ellis, R.N. Wetzel Dep. at 95.


FN37. See P-25; diagnostic radiology reports of Robert J. Sefczek, M.D. dated August 9, 1989 and Vladys low Gedroyc, M.D. dated September 20, 1989.


FN38. See P-26; Wetzel outpatient visit note dated January 3, 1990.


FN39. See P-26; diagnostic radiology report dated January 3, 1990 for Wetzel by Peter N. Waybill, M.D.


By letter dated March 8, 1990 Wetzel predicted the Plaintiff's return to work in some limited capacity as early as the following month.FN40 In early April 1990; just over nine months following surgery, the Plaintiff's leg pain; which had been a major complaint at the time he initially consulted with Wetzel, was “gone”.FN42 X-ray studies then performed by Wetzel indicated satisfactory maturity of the bone graft and proper positioning of the Synthes instrumentation.FN43 However, the Plaintiff continued to complain of an area of burning sensation in the lower back and an occasional burning sensation on the left side.FN44 One month later, Wetzel concluded: “[the Plaintiff] was seen April 11, [1990] at which time he noted continuing back pain despite an apparently maturing arthrodesis. My plan at this time, is to wait for one full year [from the June 1989 surgery] and if the patient is not symptomatically improved, repeat discography to determine whether or not there is a continuing source of chemical FN45 irritation.” FN46


FN40. See P-26; March 8, 1990 letter of Wetzel to Sharon Doros, BSN, RN.


FN42. P-26; the April 11, 1990 office note.


FN43. See P-26; April 11, 1990 diagnostic radiology report for Wetzel by Hugh Logan, M.D.


FN44. Id.


FN45. This reference to the source of discogenic pain as “chemical” is unexplained on this record.


FN46. P-26; letter dated May 17, 1990 from Wetzel to Sharon Doros, BSN, RN.


During the summer months of calendar 1990, the Plaintiff continued to complain of back pain and was evaluated by a number of physicians.FN47 In correspondence dated July 18, 1990, following an office consultation with the Plaintiff that date, Wetzel opined that only repeat lumbar discography would allow a determination of whether the Plaintiff continued to suffer discogenic FN48 pain. Alternatively, Wetzel suggested: “[I]f discography is negative, then I would suggest he consider an inpatient rehabilitation program such as the one offered at York.” FN49 Diagnostic radiology performed on July 18, 1990 revealed no abnormalities in the lumbar spine, “heterotopic bone formation at the L4-5 transverse processes” and “no change in bony alignment or appearance of the hardware since April 11, 1990.” FN50 Repeat discography performed on August 15, 1990 by John Mayer, M.D. failed to elicit a concordant pain response thereby ruling out pain of discogenic origin.FN51 Following an examination of the plaintiff on August 21, 1990 and review of the repeat discography results, Wetzel opined that:


FN47. Dr. DerKrikorian on May 3, 1990; Dr. Vernon Morris on June 20, 1990; Wetzel on July 18, 1990; Dr. John Mayor for repeat discography on August 15, 1990; and Dr. Roy G. Ysla on October 15, 1990.


FN48. That is, originaling in the spinal disk structure.


FN49. See P-26; July 18, 1990 letter from Wetzel to Mark D. Myers, OTR.


FN50. See P-26; July 18, 1990 report of Robert Wasserstrom, M.D.


FN51. See P-26; August 15, 1990 report of John Mayer, M.D.


*6 “[t]his study was negative, thus indicating the pain complex which motivated his initial surgery has disappeared. However, he continues to remain symptomatic from a plethora of low back complaints. At this point, I am unable to isolate any particular reversible lesion to account for them. Thus, it is my conclusion that he is probably suffering from a myofascial syndrome, as his fusion has healed uneventfully. Due to the prolonged nature of his disability. I think an inpatient program, such as that offered at the Rehab Hospital of York, represents his only chance to resume any sort of functional status. Accordingly, I will arrange a referral to Dr. Louis Poloni.” FN52


FN52. See P-26; August 20(sic), 1990 letter of Wetzel to Marc D. Myers, OTR/L.


The medical consensus appears to have been that the Plaintiff could derive the most benefit from a program of narcotic medication detoxification and pain management for myofascial pain syndrome FN53 and he was admitted for these programs to the Rehabilitation Hospital of York on January 2, 1991 under the care of Dr. Poloni. The Plaintiff's discharge from this facility, twenty-eight days later, was accompanied by a determination that his myofascial pain syndrome and analgesic dependency had been “resolved”. Wetzel's evaluation of the Plaintiff on February 13, 1991 included the observation that he was “mentally improved following Dr. Poloni's program and states he is walking better” FN54 although continuing to complain of moderate pain in the iliac spine region i.e. the lower back.FN55 X-ray studies performed at this time showed no changes from those of July 18, 1990.FN56 The next month, Wetzel again examined the Plaintiff, reviewed recent x-ray studies and an evaluation by another orthopedic surgeon performed on March 8, 1991 FN57 and concluded that the Plaintiff had achieved all that medical treatment could offer including a reduction of symptoms to those manageable without further intervention.FN58


FN53. See also P-26; October 15, 1990 initial comprehensive evaluation performed by Dr. Roy Ysla, M.D. “Examination is consistent with myofascial pain syndrome.” Myofascial pain syndrome is a term often used by physicians to refer to pain syndromes otherwise unclassifiable. The Merck Manual of Diagnosis and Therapy, 17 Edition, 1999 gives a narrower referent; defining the term as an oral or dental disorder characterized by “spasm in the masticatory muscles (internal and external pterygoids, temporalis, and masseter) despite a normal TMJ [i.e. temporomandibular or law joint]”. It would appear that the physicians who here advanced this diagnosis had in mind the more general meaning of the term. In Wetzel's referral letter dated August 23, 1990 to Dr. Louis D. Poloni, Ph.D. of the Incentives Program, York Rehabilitation Hospital, the terms “significant secondary gain” and “possibility of somatic overlay” further indicate the physician's developing conclusion that medical and surgical modalities alone are unlikely to further reduce the Plaintiff's symptoms.


FN54. P-26; February 13, 1991 Wetzel office visit note.


FN55. Id.


FN56. P-26; diagnostic radiology report dated February 13, 1991 for Wetzel by Michael J. Manuell, M.D.


FN57. Dr. Noubar Didizian, M.D. of the Penn Diagnostic Center, Inc.


FN58. See March 27, 1991 office note.


There the matter remained for more than one year until the Plaintiff returned to Wetzel in March, 1992 complaining of what he described as a “new symptom” involving pain in the right buttock and hip which he attributed to an incident while he was hunting at his deer camp.FN59 X-ray studies depicted a broken screw in the instrumentation implanted in June, 1989 which Wetzel did not then believe was causing the Plaintiff's symptoms.FN60 A series of epidural steroid injections were ordered by Wetzel the first of which gave several days of symptomatic relief while the second was less successful and the series was discontinued.FN61 Wetzel then ordered a diagnostic trial in a back brace which did not provide relief and, on that basis, Wetzel concluded that the Plaintiff's current symptoms were not related to the extent of post-surgical fusion at L/4-5 or the lack of it and that the presumptive diagnosis was “epidural fibrosis with a myofascial component.” FN62


FN59. P-26; March 11, 1992 Wetzel office visit note.


FN60. Lawrence Dep. at 198, 203. See P-35


FN61. Lawrence Dep. at 102. See P-26 Wetzel July 1, 1992 office visit note reporting that the second injection exacerbated the pain.


FN62. P-26; Wetzel October 14, 1992 office visit note. See also P-26; Wetzel's May 4, 1992 and July 1, 1992 office visit notes; Wetzel's undated request to Block Clinic for evaluation of Plaintiff for administration of opidural steroids; April 27, 1992 special consent form for epidural injections, consultation report, and progress notes. See P-26; May 28, 1992 Block Clinic consultation report to Wetzel including the following: “Pt [patient] reported complete relief of his chronic back pain and walked confidently after the injection.”


The Plaintiff was then referred to Hershey's pain management program where he was examined and, as he describes the consultation, was told that Wetzel would be contacted in writing and directed to conduct a more thorough examination of the Plaintiff.FN63 When the Plaintiff heard nothing further from Wetzel he consulted with a Dr. Morrissey in December, 1992 and x-ray studies were ordered which revealed that two of the four Synthes screws used in Wetzel's instrumented fusion surgery had broken. In March, 1993 the Plaintiff underwent surgery performed by Morrissey in which the two intact screws and the heads of the two broken screws were removed and a second fusion of L/4-5 was attempted; uninstrumented on this occasion, using both autologous bone from the patient's right iliac crest as well as cadaver bone as the graft.FN64


FN63. Lawrence Dep. at 107-108.


FN64. Lawrence Dep. at 110, 112, 117. See P-36: Morrissey March 9, 1993 history and physical including the following description of the surgical plan: “The patient is being admitted for removal of the plates and screws with the possibility of leaving the L5 screws in place and a fusion from the L4 to the sacrum. This will be done without Internal fixation.”


*7 In a later surgery by Dr. David Bosacco at Hahnemann Hospital, the remaining screw fragments were removed.FN65 While the combined effect of the surgeries performed by doctors Morrissey and Bosacco was to reduce the Plaintiff's back pain to some extent, complete relief FN66 was not obtained and the Plaintiff sought a further consultation with Dr. Douglas S. Tase of Commonwealth Orthopaedic Associates at the end of June and again in mid-August, 1997.FN67 Dr. Tase ordered MRI studies FN68 and another course of “diagnostic lumbar diskometrics with provocative discography” FN69 following which the discographer opined: “I completely agree with the assessment of Dr. Tase, who is suspicious of an ongoing diskopathic low back condition....[T]his may well relate to chronic internal disk disruption syndrome....” FN70 Thereafter, Dr. Tase performed a third spinal fusion, using an anterior approach on this occasion, and implating three BAK “cages” to facilitate the formation of an arthrodesis.FN71 Following complete recovery from this most recent surgery, the Plaintiff's condition was, by his report made during the course of the deposition conducted on October 2, 1998, “a little better”.FN72


FN65. Lawrence Dep. at 133-135.


FN66. Lawrence Dep. at 166-167.


FN67. Lawrence Dep. at 137-138; P-37; Tase June 26, 1997 and August 14, 1997 progress notes.


FN68. See P-37; Report of Laurence Citro. M.D. dictated July 1, 1997.


FN69. That is, a diskogram as described above. See P-38; July 25, 1997 report of Kerry J. Thompson, M.D.


FN70. Id.


FN71. Lawrence Dep. at 160. The BAK devices are there described as made of titanium; hollow and threaded, to be packed with bone chips at the time of surgery and installed in the manner of a screw.


FN72. Lawrence Dep. at 165.


The pending motions must be resolved in this factual context. In the discussion that follows, those motions will receive attention in order of logical priority. Viewed in that light, Plaintiff's motion for a change of venue demands first consideration. As we have indicated, the Plaintiff seeks to return the matter to the Court of Common Pleas of Philadelphia County where it was coordinated for purposes of pleading and discovery.

Defendants vigorously oppose the motion and emphasize the following. The litigation was initiated by Plaintiffs' in this court in September 1994. The motion for change of venue was not filed until November 27, 2000; following the transfer of the record to the Court of Common Pleas of Philadelphia County on November 3, 1994 to Docket No. 9408-002 pursuant to the coordination order of that Court dated June 8, 1994 and as one of several hundred orthopedic bone screw cases administered by the mass tort program of the civil division of that Court; the disposition of all pre-trial matters raised in the coordinated cases; the return of the record to this Court on February 9, 1995 pursuant to an order of the Philadelphia County Court of Common Pleas dated January 24, 1995; assignment of the matter to Judge MacElrco of this Court on May 16, 1996; trial listings on April 20, 1998, June 15, 1998, July 6, 1998, August 17, 1998, September 28, 1998, and February 1, 1999; the denial of initial defense motions for summary judgment on September 3, 1998; the interposition of renewed motions for summary judgment by defendants on November 25, 1998 raising statute of limitations issues; the grant of summary judgment to all defendants by order dated January 20, 1999; the perfection by Plaintiffs of an appeal to the Pennsylvania Superior Court by notice filed February 18, 1999; the certification to the appellate court of this court's record in response to a writ therefor on March 31, 1999; and the reversal of this court's determination by order of the Superior Court dated February 29, 2000.FN73 Following denial of allowance of appeal by the Supreme Court FN74 and remand of the record to this court, the matter was assigned to this writer on November 29, 2000; FN75 and the pre-trial motions described above were filed by the parties.


FN73. See Lawrence v. Synthes, Inc., 754 A.2d 28 (Pa.Super.2000) appeal denied. 568 Pa. 664, 795 A.2d 977 (Pa. August 28, 2000 Table, No. 221 and 223 M.D. Alloc, 2000) (a prior motion for venue change was filed by Plaintiffs on March 15, 2000 the disposition of which was initially precluded by the defense petition for allowance of appeal to the Supreme Court from the Superior Court order of February 29, 2000. Following the denial of the petition, Plaintiffs represented the instant motion.


FN74. By order entered August 28, 2000 to Nos. 221 and 223 MD Allocatur Docket 2000.


FN75. An interim assignment to Judge Cody of this court was effected by order of May 26, 2000.


*8 It is well-established that “questions of personal jurisdiction, venue, and notice ... must be raised at the first reasonable opportunity or they are waived.” Kubik v. Route 252, Inc., 762 A.2d 1119, 1123 (2000) citing Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa. Superior Ct. 95, 380 A.2d 1299, 1301 (1977). This test is not met by the instant motion filed more than five (5) years after the Plaintiffs first invoked this Court's jurisdiction.

In addition, as we have emphasized, the choice of forum most recently challenged by Plaintiffs was Plaintiffs' own. Case Management Order No. 12; entered by the Philadelphia Court of Common Pleas to govern all orthopedic bone screw cases originally filed in counties other than Philadelphia and transferred to Philadelphia pursuant to Case Management Order No. 1, provides, in ¶ 4: “As of the date of completion of discovery in each case, non-Philadelphia cases are no longer coordinated under the Court of Common Pleas of Philadelphia County. The court of the county of origin shall assume jurisdiction over each non-Philadelphia case.” It is the clear mandate of the court to which Plaintiffs here seek to transfer the matter that it remain instead in Chester Countythe forum initially chosen by Plaintiffs.

Plaintiffs also assert that a change of venue is proper for the convenience of the parties pursuant to Pa.R.C.P. No. 1006(d)(1). None of the Defendants or their witnesses, however, are located in Philadelphia County. The corporate headquarters of Synthes, Inc. is in Paoli, Chester County with a manufacturing facility located in Exton, Chester County. Hershey and Wetzel were, at the time, located in Lancaster County; Wetzel has since relocated to Chicago, Illinois; and, as we have indicated, Plaintiffs have been domiciled for many years in Berks County. No good reasons appears why a change of venue at this late juncture would benefit any of the parties and, therefore, the motion is denied.

We next consider the motions of all Defendants to preclude or exclude the testimonial and other evidence of the plaintiffs' expert witnesses Larson, Alexander, and Yaros.

Carl A. Larson Ph.D. received a bachelors of science degree in physics from Drexel Institute of Technology in 1960, a masters of science degree in engineering from the University of Alabama in 1966, a license as a professional engineer from the State of Alabama in 1966, and a doctorate in biomedical engineering from Drexel University in 1973. From October 1979 until January 1992, Dr. Larson served as Director of the FDA's Surgical and Rehabilitation Devices Division with responsibility for the management of the regulatory review process related to orthopedic devices including the spinal instrumentation and pedicle screws here at issue.

In a report to Plaintiffs' counsel dated November 16, 1988, Dr. Larson described the FDA's regulatory review process under the MDAs; the primary exceptions to the requirement for premarket authorization for Class III devices including the so-called “ § 510(k) application” in which the manufacturer attempts to demonstrate that the device in question is “substantially equivalent” to an approved or “predicate” device; FN76 the requirement in all other cases of the submission to the FDA of “extensive preclinical and clinical data and rigorous analysis of that data” FN77 in order to establish the safety and efficacy of the device which data is obtained through the use of the Investigational Device Exemption.


FN76. These exceptions are the “grandfather” clause permitting without investigation all devices introduced in the market before May 28, 1976 (the effective date of the Act); see 21 U.S.C. § 360e(b)(1)(A); 21 CFR § 814.1(c)(1); as well as all devices later introduced which are “substantially equivalent” to such a predicate device. 21 U.S.C. § 360e(b)(1)(B); 21 C.F.R. § 807.87. As the United States Supreme Court has written with respect to these regulations:

Not all, nor even most, Class III devices on the market today have received premarket (“PMA”) approval because of two Important exceptions to the PMA requirement. First, Congress realized that existing medical devices could not be withdrawn from the market while the FDA completed its PMA analysis for those devices. The statute therefore includes a “grandfathering” provision which allows pro-1976 devices to remain on the market without FDA approval until such time as the FDA initiates and completes the requisite PMA. See 21 U.S.C. § 360e(b)(1)(A); 21 CFR § 814.1(c)(1) (1995). Second, to prevent manufacturers of grandfathered devices from monopolizing the market while new devices clear the PMA hurdle, and to ensure that improvements to existing devices can be rapidly introduced into the market, the Act also permits devices that are “substantially equivalent” to pre-existing devices to avoid the PMA process. See 21 U.S.C. § 360e(b)(1)(B).

Medtronic, Inc. v. Lohr, 518 U.S. 470, 477-478, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). See also Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341, 345, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001)


FN77. Larson November 16, 1998 Report at 3.


*9 Synthes and Wetzel both contend that Larson's report described above is inadmissible to support the Plaintiff's claims because the expert witness is now deceased and is not available for cross-examination. We are constrained to agree. In Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971), Pompa was injured by an exploding beer bottle and sued the brewer, manufacturer, distributor, and retail seller thereof. Initially, Pompa retained the shards of glass from the exploding bottle which were provided to the defendants' expert for examination and then, apparently, returned. The expert conducted an examination of the shards and prepared a report to be used at trial with respect to the cause of the accident. The expert witness died before trial and the defendants retained another expert and sought from Pompa the shards to be reexamined. Pompa failed to produce the fragments, asserting that he no longer had them. The trial court imposed a sanction on Pompa for failure to produce the shards that the factual description of the bottle fragments contained in the deceased expert's report could be admitted at trial as the basis for an opinion to be developed by the defendants' successor expert. Trial was conducted in this manner, a defense verdict was returned, and Pompa appealed contending that it was error for the trial court to impose the sanction described. The Court reversed, holding that no sanction was justified inasmuch as Pompa disregarded no order or directive of the trial court and simply failed to produce that which he no longer possessed; and that the admission of an expert report, even limited to the factual statements contained therein, prepared for trial by a witness no longer available for cross-examination, violated the opposing party's fundamental right of confrontation. As the Court wrote:

This appeal raises the question of the admissibility of the ‘factual statements' contained in an expert's report prepared for purposes of litigation. We hold that the report was inadmissible hearsay, vacate the judgment and remand for a new trial.


--------------------------------------------------------------------------------

There remains only the question whether the report was otherwise admissible. There can be no doubt that the report, prepared by Ghering before trial, was hearsay. McCormick, Evidence s 225 at 460 (1954). Furthermore, in light of the missing glass fragments, the ‘factual statements' in this report were offered in lieu of the only direct evidence which could explain the shattering of the bottle. The other evidence consisted of appellant's testimony, hospital records, and medical testimony as to the extent of injury.

Appellee practically concedes that the report is inadmissible hearsay. The report cannot qualify as an exception to the hearsay rule under the Business Records Act....

Appellee [the bottle manufacturer] contends that in the absence of the factual statements of the report, appellee's defenses were substantially undermined. Even assuming appellee's contention to be correct, it provides no legal basis for admitting the report, prepared solely for the purposes of litigation. No cross-examination of the author of the report was possible. Furthermore, cross-examination of the second expert who testified on the basis of the prior report is no substitute. The possible distortions and inaccuracies which may have occurred during Ghering's [the first expert; deceased at the time of trial] examination of the original glass fragments would not be disclosed. Nor can the report be admissible on the theory of the best evidence rule. The rule is not intended to justify admission of evidence otherwise inadmissible under other rules of evidence. See McCormick, Evidence §§ 195-209 (1954). It follows that the testimony of appellee's expert at trial, based on the admission of Ghering's report, was error. We find it unnecessary to reach appellant's other allegations of error.

*10 Id. at 43, 46-47, 281 A.2d at 886, 888-889. To the same effect, see Semieraro v. Commonwealth Utility Equipment Corp., 518 Pa. 454, 457, 544 A.2d 46 46 (1988) (“It is well established that a report prepared by an expert who is not called to testify as a witness is hearsay.”). The Plaintiffs here offer no basis on which the rule in Pompa and Semieraro could be disregarded. Nor do they advance any ground justifying an abrogation of the Defendants' right of confrontation. It is true that witness Larson was deposed in the MDL litigation but the report at issue was prepared subsequent to that deposition. Moreover, Hershey and Wetzel contend that they did not participate in Larson's deposition and Synthes asserts that Larson made no mention in his MDL deposition of the DCP and cancellous screws here at issue. Plaintiff does not controvert these factual assertions. The Larson expert report must be excluded; the Defendants' motion in limine with respect thereto will be granted.

The primary issue with respect to the evidence of expert witness Dr. Harold Alexander, Ph.D. has been resolved by Plaintiffs' agreement (confirmed during the oral argument conducted with respect to these motions) that the scope of witness Alexander's evidence would be limited to the mechanical and biomechanical properties of pedicle screw devices including the Synthes product here implanted in the Plaintiff; and would not encompass other matters including, particularly, any opinion concerning the medical cause of the Plaintiff's symptoms or injuries.

Dr. Alexander's educational background includes a bachelors of science degree in aeronautical engineering from the school of engineering and science of the New York University in 1962, and a masters of science degree and doctorate degree in applied mechanics from the same institution in 1963 and 1967, respectively. In the period from 1986 to 1996, Dr. Alexander was employed as the director of the department of bioengineering and as a professor of orthopaedic surgery at the New York University School of Medicine. By Pretrial Order No. 725 entered by Judge Bechtle for the United States District Court for the Eastern District of Pennsylvania to MDL 1014, granted in part the motion in limine of the manufacturer defendants with respect to Dr. Alexander's proffered opinions, as follows:

1. To the extent that Dr. Harold Alexander's proffered opinions are within the strict limits of the elements that comprise the field of orthopedic bioengineering (biomechanics, biomaterials, biomedical engineering, and design and analysis of device research) the defendant's motion is DENIED.

2. To the extent that Dr. Harold Alexander's opinions are governed or require expertise in any scientific field not included in paragraph 1, of this Order, the motion is GRANTED.

We understand the Plaintiff's stipulation to be consistent with Pretrial Order 725. As the opinion filed by Judge Bechtle in support of the order makes clear, “Dr. Alexander's expertise in bioengineering does not necessarily make him particularly qualified to make ... statements in the additional disciplines of law, medicine, orthopedics, FDA regulatory practice, conflicts of interest, market surveys, and clinical studies.” FN78 We understand the stipulation to preclude evidence by Dr. Alexander properly categorized in any of these “additional disciplines”. Most importantly for our present purposes, we understand the stipulation to preclude evidence by Dr. Alexander having to do with the medical cause of the Plaintiff's injury, symptoms, or damages.


FN78. See 1997 WL 39583 at *4.


*11 In the absence of such a stipulation we would have been required to impose a materially identical restriction on Dr. Alexander's evidence in the exercise of our function as “gatekeeper” pursuant to Pa.R.C.P.No. 702; an obligation we had recent occasion to further describe in the opinion filed on June 22, 2001 in support of our order in Riccio and Ramos et al. v. S & T Contractors et al., 49 Ches. Co. Rep. 265 (2001) as follows:

There can be no doubt that among the duties of this Court is the performance of its function as a “gatekeeper” whenever science enters the courtroom and, particularly, when expert testimony relying upon novel scientific evidence is offered. As the Pennsylvania Superior Court explained in Blum v. Merrell Dow, 705 A.2d 1314, 1322 (Pa.Super.1997) aff'd 564 Pa. 3, 764 A.2d 1 (2000):

[I]n dealing with complex scientific theories, cross-examination is not the appropriate tool to test the speciousness or accuracy of the expert's testimony where the evidence on which that testimony is based is not deemed reliable.... [T]he judge as gatekeeper decides whether the expert is offering sufficiently reliable, solid, trustworthy science. The question is: is the science good enough to serve as the basis for the jury's findings of fact, or is it dressed up to look good enough, but basically [is] so untrustworthy that no finding of fact can properly be based on it. If the latter is true, the integrity of the trial process would be tainted were the jury to consider it.

The United States Supreme Court discussed the necessity of this judicial role in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) in the following terms:

Unlike an ordinary witness ... an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.... Presumably, this relaxation of the usual requirement of firsthand knowledge-a rule which represents “a ‘most pervasive manifestation’ of the common law insistence upon” the most reliable sources of information, ... is premised on an assumption that an expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”

Id. (Citations omitted).

In this Commonwealth, a determination of the reliability and, therefore, admissibility of scientific evidence requires the proponent to establish that the evidence concerns a matter which “has achieved ‘general acceptance’ in the relevant scientific community.” Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa. 3, 764 A.2d 1 at *3 (Decided December 22, 2000).FN79 As the Court explained in Frye:


FN79. Rejecting in Pennsylvania the less restrictive standard determined by the United States Supreme Court in Donbert to be mandated in federal jurisprudence by Fed. R. Civ. Pro. No. 702 and refusing to overturn the rule of Frye v. United States, 293 F. 1013 (D.C.Cir.1923) adopted as this Commonwealth's governing principle by Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977).


The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit of experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

*12 Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. 293 F. at 1014.

There is some uncertainty as to whether it is the witness' conclusion or methodology or both which must have achieved general scientific acceptance as a precondition to evidentiary admissibility. See, for example, the dissenting Opinion of Mr. Justice Cappy in Blum which includes the following discussion:

The Superior Court is correct that this court has long interpreted Frye as requiring that the methodology employed by the testifying scientist be generally accepted in the scientific community. See e.g. Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117, 1119 (1998). Yet, we have not stated that the conclusion reached by the scientist regarding causation must also be generally accepted in the scientific community.

As noted by the Superior Court, this additional step in the Frye test-requiring that the conclusion also be generally accepted by the scientific community-was added by the Commonwealth Court in McKenzie v. Westinghouse Electric Corp., 674 A.2d 1167 (Pa.Commw.Ct.1996). I cannot find that this court, however, has endorsed this interpretation of the Frye test.

Id. (Emphasis in the original). But compare the decisions of the Pennsylvania Superior Court reported as Thomas v. West Bend Co., Inc., 760 A.2d 1174, 1176 (Pa.Super.2000) (approving the trial court's conclusion with respect to the proffered expert witness that “[n]either his exemplary qualifications, nor his extensive experience, nor the soundness of his methodology is sufficient to overcome the novelty of his scientific advance.”); Wack v. Farmland Industries. Inc., 744 A.2d 265 (Pa.Super.1999) appeal denied 565 Pa. 649, 771 A.2d 1287, 2001 WL 355678 (Pa. April 10, 2001) ( Blum “recognized admissibility requires both the causal relationship and the methodology to be generally accepted by the scientific community”); Checchio v. Frankford Hospital-Torresdale Division, 717 A.2d 1058, 1060 (Pa.Super.1998) (“This court, following Topa, ruled that the analysis to be applied in answering the question of whether the Frye/Topa admissibility criterion had been met was two pronged; acceptance in the scientific community of first the causal; and then the methodological relationship alleged”).

Whatever its intellectual interest and present indeterminacy in the decisions of our Supreme Court, the distinction between conclusory and methodological acceptance is of no moment here because: (1) the parties have neither raised nor briefed the issue; (2) the Superior and Commonwealth Courts (decisions of which are here controlling) have each clearly stated that general scientific acceptance must be an attribute of both; and (3) for the reasons discussed at length below, neither the method nor the causal conclusion proffered by the Plaintiff have achieved the consensus requisite to testimonial admissibility.

*13 We note in closing on this preliminary issue that in those cases, like that here presented, which turn on scientific causation, the authorities are clear and uniform that the causal conclusion itself must be accepted as a general matter in the relevant scientific community before expert testimony of the existence of causality in the particular case may be properly admitted. See, for example. Blum (causal relationship between ingestion by the mother of the prescription drug Bendectin and fetal abnormalities i.e. teratogenic property of Bendectin); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992) (causal connection between sexual abuse and a syndrome of child behaviors); Thomas v. West Bend Co., (causal relationship between low voltage shock and cardiomyopathy); Wack v. Farmland Industries, Inc. (causal relationship between ingestion of benzene contaminated drinking water and rare salivary gland cancer); Checchio v. Frankford Hospital, (causal relationship between neonatal respiratory distress and autism); McKensie v. Westinghouse Electric Corp. (causal connection between mother's exposure to gasoline additive contaminated groundwater and neonatal cardiac abnormalities). Commonwealth v. Miller, 367 Pa. Superior Ct. 359, 532 A.2d 1186 (1987) (causal connection between alcohol consumption and horizontal gazo nystagmus). See also Wimberly v. Wyeth Laboratories, Inc., 48 Leh.L.J. 47 (1998) (causal connection between use of Norplant contraceptive and patient's stroke); Trach v. Thrift Drug, Inc., 46 D. & C. 4 231 (Lehigh County 2000) (causal relationship between ingestion of Doxepin, an antidepressant, and the patient's glaucoma and cognitive difficulties). As the Commonwealth Court explained in McKensie v. Westinghouse Electric Corp.:

In order for scientific testimony indicating that an event causes a particular result to be admitted, there must be a showing not that the studies establishing the causal relationship follow generally accepted methodologies, but that the existence of the causal relationship is generally accepted by the relevant medical community.

Id. 674 A.2d at 1172.

Riccio Ramos, 49 Ches. Co. Rep. at 267-270. Courts which have considered the admissibility of Dr. Alexander's opinions on such matters outside the realm of bioengineering as medical causality in bone screw litigation have concluded that his evidence must be excluded. Dyer v. Danek Medical, Inc., 115 F.Supp.2d 732 (N.D.Tex.2000); King v. Danek Medical, Inc., 37 S.W.3d 429, 2000 WL 311143 (Tenn.Ct.App.2000) appeal denied November 6, 2000; Schmerling v. Danek Medical, Inc., 1999 WL 712591 (E.D.Pa.1999); Harris v. Danek Medical, Inc., 1999 WL 1117106 (M.D.La.1999); Talley v. Danek Medical, Inc., 7 F.Supp.2d 725, 731 n. 5 (E.D.Va.1998) aff'd 179 F.3d 154 (4 Cir.1999); Cosom v. Danek Medical; Philadelphia Common Pleas Order filed October 12, 1999. As the court wrote in Schmerling v. Danek:

*14 In a footnote, plaintiffs seek to bolster their position by suggesting that causation may otherwise be established by the report of Dr. Harold Alexander, a Ph.D. in applied mechanics. Plaintiffs rely on Judge Bechtle's Pretrial Order 725 in In re Orthopedic Bone Screw Litig., No. MDL 1014, 1997 WL 39583 (E.D.Pa. Jan.23, 1997) for this proposition. Their reliance is misplaced. The report of Dr. Alexander on which plaintiffs rely is a generic critique of spine fixation devices which was submitted in virtually all of the bone screw cases. It does not mention any of the moving defendants in this case or any of their products and does not address plaintiff or how any C-D instrumentation, much less bone screws implanted in 1994, caused her symptoms. Judge Bechtle found that Dr. Alexander was qualified to offer expert testimony in the field of biomechanics or bioengineering, but was not qualified to give testimony requiring expertise in any other field including “clinical complications of pedicle fixation.” See 1997 WL 39583, *2. See also Baker, 35 F.Supp.2d at 881 (finding Dr. Alexander's report did not create a triable issue of fact); O'Brien, 1999 WL 239414, *2 n. 4 (“Dr. Alexander cannot testify that [the C-D system] caused [plaintiff's] medical condition to worsen”).

Id. at *9. Similarly, the Superior Court wrote in Hall v. Balderston, 748 A.2d 1258 (1999) appeal denied 563 Pa. 663, 759 A.2d 387 (2000).

Dr. Alexander is not a medical doctor. He admitted he does not have any formal medical training. Significantly, Dr. Alexander has no experience allowing him to testify to medical causation i.e., the cause of pain or clinical complications, etc. We are not aware of nor have appellants cited any cases which hold that a nonphysician can testify as to the cause of a medical condition. Thus, the trial court did not err by concluding that Dr. Alexander lacked the expertise to opine about the cause of any medical condition relevant to his case.

The defense motions in limine with respect to the expert evidence of Dr. Harold Alexander will be granted in part and to the extent that the witness will be precluded from giving evidence on any subject other than bioengineering and, in particular, will be precluded from giving evidence on the matter of medical causation.

We must now consider the motions in limine seeking to exclude the expert evidence of Dr. Lance O. Yarus, M.D. Dr. Yarus received his bachelors of science degree in psychology from Syracuse University in 1977 and began a masters of science program in biochemistry at Drexel University that year but discontinued those studies after one course on acceptance in June, 1978 as a student of the College of Osteopathic Medicine and Surgery in Des Moines, Iowa in which institution he was enrolled continuously until graduation therefrom in June, 1981. Thereafter, Dr. Yarus completed a one-year internship at Memorial Hospital, an osteopathic institution in Turnersville, N.J.FN80 and a residency in the same institution which he completed in 1986.


FN80. Later purchased by the University of Medicine and Dentistry of New Jersey.


*15 Following his residency. Dr. Yarus immediately entered upon his private practice in the Lebanon-Lancaster area. The practice is described by him “as an overall general orthopedic practice [focusing] in mainly arthroscopic surgery and spine surgery.” FN81 Arthroscopic surgery is predominantly directed to conditions of the knee and shoulder.FN82 Dr. Yaros has not in recent years performed a lumbar fusion of any type.FN83 Over the whole of his practice, Dr. Yarus described the number of spinal fusion surgeries of all types performed by him or under his direct surgical supervision as “a very minimal amount, if any.” FN84 He has never performed an instrumented lumbar fusion, a lumbar fusion involving the removal or explanation of instrumentation, or a lumbar fusion utilizing an anterior surgical approach. FN85 With the exception of observation during his residency of the use by another physician of another manufacturer's fixation device, he has had no training in the use of lumbar spine instrumentation.FN86 Indeed, with this one exception during residency, Dr. Yarus has had no experience with the use of implanted hardware in any part of the spine; FN87 has never even directly observed an instrumented fusion procedure performed by another surgeon FN88 and has never physically examined the Synthes device here at issue or any of the similar devices produced by any of the other manufactuers made defendants in MDL 1014.FN89 He is not board certified in orthopedic surgery; FN90 and has never taught, researched, or published in any area related to spine surgery.FN91 When asked if he had ever “tried to quantify or assess in any way your experience” with lumbar fusion surgeries, Dr. Yarus responded in the negative and explained “[n]o, I would have never had enough in the series to even attempt that. I never attempted to publish.” FN92


FN81. Deposition of Lanco O. Yarus taken January 30, 1998 in MDL 1014 for the case captioned Jason Leigh et al. v. Danek Medical, Inc. et al., CA No. 95-8021 appended as Exhibit “L.” to Synthes motion for summary judgment (hereinafter: “Yarus Dep.”) at 107.


FN82. Yarus Dep. at 107.


FN83. Yarus Dep. at 125 (last five to seven years).


FN84. Yarus Dep. at 124.


FN85. Yarus Dep. at 125.


FN86. Yarus Dep. at 125.


FN87. Yarus Dep. at 127.


FN88. Yarus Dep. at 58-59.


FN89. Yarus Dep. at 59-60.


FN90. Yarus Dep. at 65-66.


FN91. Yarus Dep. at 65.


FN92. Yarus Dep. at 129-130.


In this litigation, Dr. Yarus' efforts were limited to a review of certain documents provided by the Plaintiffs' counsel and a brief meeting with Mr. Lawrence.FN93 No examination of the Plaintiff was performed by Dr. Yarus and no independent medical studies or tests were ordered or reviewed.


FN93. As Mr. Lawrence described the encounter: “I just went up and talked to him and showed him some x-rays and stuff and that was about it. Q: How long were you with him? A: Maybe 20 minutes. Q: Did he perform an examination during that 20 minutes or did you simply talk to him? A: Just talked to him at that time. Q: How many occasions have you gone to his office? A: Once.” Lawrence Dep. at 175.


Dr. Yarus' proffered opinion takes the form of two letters to the Plaintiffs' counsel dated June 30 and November 16, 1998, respectively. In the first of these, after cataloging the documents reviewed and restating the plaintiff's medical history, in a section of the correspondence styled “Case Review”, Dr. Yarus, without further discussion, reasoning, or citation to authorities, concludes:

(1) “that there is a proximate cause and effect relationship between the implanted metallic devices and the symptoms that developed subsequent to the procedure including low back pain and radiating pain in the right lower extremity.” This conclusion is propounded by the witness without any recognition, analysis, or rebuttal of the established facts that: (a) the symptoms he describes as caused by the surgery both preceded Wetzel's surgical intervention (indeed, their relief was the purpose of the operation) and continued following explanation of the devices by Morrisey and Bosacco thereby leading the Plaintiff to seek a fourth lumbar procedure with Dr. Tase; (b) pain of the type described is a well known consequence of fusion failure whether the attempted fusion was instrumented or uninstrumented; (c) the post-surgery diagnostic procedures ordered by Wetzel including repeat myleograms, bracing trials, and epidural injections eliminated a causal connection between the persisting pain and processes at the L-4/5 disk; (d) none of the other physicians who examined the Plaintiff opined that his symptoms were a consequence of soft tissue damage caused by the implant; and

*16 (2) “the metallic device and the surgery performed was (sic) not indicated for Mr. Lawrence.” The only support for this conclusion offered by Dr. Yarus is the opinion of Dr. Lignelli that conservative measures should be explored before surgical alternatives. This opinion, however, was given prior to the failure of those conservative measures and before Dr. Lignelli referred the Plaintiff to Wetzel for a surgical consultation. Dr. Yarus' implication to the contrary notwithstanding, there is no indication in the Plaintiffs' evidence that Dr. Lignelli disagreed with any of the actions taken by Wetzel or with their necessity; and

(3) “Dr. Wetzel did not provide proper informed consent.” This conclusion is predicated on the failure of Wetzel to disclose to the Plaintiff the regulatory status of the Synthes instrumentality; that is, that it had been neither tested nor approved in June, 1989 by the FDA for use in the lumbar spine to facilitate fusion. Our Supreme Court, in Southard v. Temple University Hospital, 566 Pa. 335, 781 A.2d 101 (2001) directly rejected the legal position on which Dr. Yarus' opinion is founded; that is, the Court held that the doctrine of informed consent does not require a surgeon to disclose the regulatory status of spinal fusion instrumentation. Id. at 344-345, 781 A.2d at 107. Moreover, by proposed rule published on October 4, 1995 FN94 and by final rule effective on August 26, 1998 FN95 the FDA, on recommendation of its Orthopedic and Rehabilitation Devices Panel and the strength of a nationwide, retrospective Cohort study of 3,498 degenerative spondylolisthesis and spinal fracture patients treated with such devices by 314 orthopedic surgeons patients between January 1, 1990 and December 31, 1991, reclassified pedicle screw spinal fixation systems like that here at issue under the MDA's from Class III requiring premarket approval to Class II subject to less stringent controls. The factual findings on which the FDA predicated this reclassification including the statistically significant higher rate of fusion in those patients in whom a pedicle screw device was implanted.


FN94. See Volume 60, No. 192 of the Federal Register; 60 F.R. 51946 et seq. proposing amendments to 21 CFR Part 888 to FDA Docket No. 95N-0176.


FN95. See Volume 63, No. 143 of the Federal Register; 63 FR 40025 et seq. In In Re Orthopedic Bone Screw Litigation, 264 F.3d 344 (3d Cir.2001) the court affirmed Judge Bechtle's Order for the district court dismissing claims against the FDA brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. and alleging improprieties in the approval of these devices.


The conclusions proffered by Dr. Yarus in his June 30 correspondence are, for the reasons discussed, inadequately supported.

In the November 16, 1998 supplemental report, Dr. Yarus proffers a description of what is asserted to be the defective characteristics of the Synthes device design. Specifically, Dr. Yarus asserts, again without explanation, analysis, or citation to any authoritative source of similar or shared opinion, that the Synthes DCP was an “unconstrained” system and as such permitted movement of the attached vertebrae and, thereby, prevented fusion. As presented this is no more than an exercise in semantics. The Synthes device is defective because it permits movement and it permits movement because it is an unconstrained system. Nowhere does Dr. Yarus describe the particular design feature of the DCP which produces its unconstrained characteristic. Neither does Dr. Yarus describe the means by which the Synthes device could be made to constrain the vertebral movement or opine that such alternations in the design would be feasible.

*17 Dr. Yarus further asserts that the wrong sized screws were used (6.5 mm instead of 4.0 mm) and then, somewhat inconsistently, contends that the larger screws were insufficiently strong to counter the loads placed on the device. The only support for the latter proposition offered by the witness is the fact that two of the screws fractured. However, Dr. Yarus does not analyze the intended purpose of the device or its intended lifespan of operation. Neither does the witness discuss the counter-view that such devices are intended only to support the spine and limit movement for the maximum period likely to be required for fusion to occur; that is, about one year.

In Schindler v. Sofamor et al., 774 A.2d 765 (Pa.Super.2000) appeal denied 567 Pa. 727, 786 A.2d 989 (2001), the Superior Court affirmed the grant of a defense motion for judgment N.O.V. in a product liability case involving a failed fusion and a fractured spinal fixation device manufactured by Sofamor Danek Group, Inc. called a Cotrel-Dubosset (“CD”) device following a jury award to the plaintiff patient of more than $1.5 Million. The trial court's action was a consequence of its conclusion that the device at issue was not defective or unreasonably dangerous as a matter of law. The Plaintiff's biomechanical expert testified, and the jury apparently accepted, that the knurled or grooved surface placed on the rod components of the device during the manufacturing process in order to increase its holding power also reduced the mechanical strength of the component rendering it defective.

The trial court rejected this conclusion and found that the rod was safe for its intended use in the following terms:

The rod's surface was knurled, or grooved. The knurling provided improved holding power and was not decorative. Plaintiffs claimed that the knurled surface of the rod caused it to prematurely break. Plaintiff's expert opined that smooth metallic surfaces last longer than any metallic surfaces which have been altered. Thus, Plaintiffs claimed that the knurled surface was a design defect.

An examination of the record clearly reveals that the CD Rod was not unreasonably dangerous for its intended use. The intended use of the rod was to stabilize the spine until fusion occurred. If fusion is to occur in an individual, it will occur within one year of surgery. The rod was never intended to last indefinitely in the absence of fusion. The testimony at trial established that all implants will eventually fracture in the event of non-fusion.

Mrs. Schindler's surgery took place in January 1989 and fusion should have occurred by January 1990. Therefore, the CD Rod had served its intended purpose if it stabilized Mrs. Schindler's spine within the one year following her January 1989 surgery. Plaintiffs do not claim that the rod failed to align Mrs. Schindler's spine in the year following the surgery. The rod did not break until July 1993, four and a half years after the surgery and three and a half years after the point that fusion should have occurred. The CD Rod fulfilled its intended use in providing stabilization for an additional three and a half years past its intended use.

*18 Id. at 769-770 excerpting the trial court opinion filed February 15, 2000.

The Superior Court agreed with this analysis. Following an extended discussion of the judicial role in product liability cases and “the power [of trial courts] to reject design defect claims as a matter of law, even where the plaintiff presents evidence tending to show that the product is defective” FN96 after expressly recognizing “that the words, ‘unreasonably dangerous' have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier ....”,FN97 the appellate court reasoned as follows:


FN96. Id. at 773 citing Jacobini v. V. & O. Press Co., 527 Pa. 32, 588 A.2d 476 (Pa.Super.1991); Riloy v. Warren Manufacturing Co., 455 Pa.Super. 384, 688 A.2d 221 (Pa.Super.1997); Fitzpatrick v. Madonna, 424 Pa. Superior Ct. 473, 623 A.2d 322 (1993); and Jordon v. K-Mart Corp., 417 Pa.Super. 186, 611 A.2d 1328, 1331 (1992)


FN97. Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 556, 391 A.2d 1020, 1024 (1978)


In the instant case, the trial court was charged with deciding whether, “under the plaintiff's version of the facts, recovery would be justified.” Azzarello, 391 A.2d at 1026. As noted above, Appellants' version of the facts is that the CD Rod was designed to stay in place until fusion took place, and that the rod did not do so. Appellants conclude that their version of the facts compels a legal finding that the CD Rod was not fit for its intended purpose. For the following reasons, we disagree.

This case hinges on the difference between averments of fact and conclusions of law. All parties agree that the CD Rod is designed to stabilize the spine “until” fusion takes place. It is also undisputed that the rods generally do stay in place forever if fusion takes place. Appellants would convert these statements of fact into a conclusion of law that the rod is defective if it breaks before fusion takes place. The unspoken assumption behind this statement is that fusion always takes place once a rod is inserted. Appellants would have the trial court accept this assumption as true, under the guise of construing all factual inferences in Appellant's favor.

The trial court chose not to do so, and implicitly rejected this assumption as unreasonable. Instead, the trial court took the additional step of asking two questions: (1) whether fusion occasionally does not take place at all, and (2) whether the CD Rod was designed to stay in place indefinitely in such a situation. In doing so, the trial court took into account the fact that occasionally the spine does not fuse (a condition known as pseudoarthrosis), and that if the spine does fuse, it will generally do so within one year. The trial court concluded that “the rod was never intended to last indefinitely in the absence of fusion,” and that the rod served its purpose if it stabilized the spine for one year. Trial Court Opinion, 2/15/2000, at 5.

We see no error of law in this statement of the CD Rod's intended purpose. Appellants presented no evidence that the CD Rod was intended to stabilize the spine indefinitely in the case of pseudoarthrosis. Rather, it would appear that if fusion does not take place within one year, physicians should take additional measures to encourage fusion, such as bone stimulation. In other words, the goal of the CD Rod is to facilitate bone fusion, not to substitute for fusion in the event of pseudoarthrosis. Moreover, the mere fact that stabilization rods generally last forever in the event of fusion does not necessarily imply that they last forever in the event of non-fusion. Thus, even if a smooth CD Rod would have lasted forever, this fact is irrelevant because the rod was not intended to last forever in the event of pseudoarthrosis. Based on the trial court's appropriatelylimited statement of the CD Rod's purpose, and the undisputed fact that the CD Rod did indeed stabilize the spine for well over one year. we see no error in the court's conclusion that the product was not unreasonably dangerous as a matter of law. JNOV was therefore appropriate. See, Davis, 690 A.2d at 190-191

*19 Schindler at 774-775 (footnotes omitted) (emphasis in the original)

Identical considerations govern the assessment of Dr. Yarus defect claim. The syllogism that leads ineluctably from the fact of breakage to the conclusion of defect fails to account for the intended purpose of the device. The Synthes device, like the others of its type, was intended to restrict movement during the period required for a successful fusion; less than one year. The fusion surgery was performed on the Plaintiff by Wetzel in June, 1989. The first indication of screw breakage is found in Wetzel's March 11, 1992 office note. Indeed, x-ray studies performed as late as February, 1991; about twenty months after the surgery, disclosed no change in the instrumentation or its position. The Synthes device performed its intended function with a significant margin. Dr. Yarus conclusion that these facts require a finding of defect must be rejected.

Other courts faced with the question of the admissibility Dr. Yarus' evidence in the context of bone screw litigation have concluded that the evidence must be excluded. The following critique is typical, appearing in the opinion reported as Moses v. Danek Corp., 1998 WL 1041279 (D.Nev.1998) filed in support of the grant of a spinal fixation device manufacturer's motion for summary judgment and following a discussion of the court's gatekeeping role under Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Dr. Yarus' letter, which opines a causal connection between implantation of the TSRH spinal fixation device and Plaintiff's injury, does not fair well under the scrutiny of these factors.

First, there is no indication that Dr. Yarus' method, simple logic, as opposed to medical training, experience, and examination, has gained general acceptance in the relevant scientific community to diagnose the source of spinal pain. Plaintiff has suffered from several physical ailments, a number of which deal with her spine. To conclude that Plaintiff's pain is allegedly the result of a defective TSRH device, without examination of the device or Plaintiff's spine, and by only studying a portion of her medical history is rudimentary at best. A logical or spatial test is simply inadequate in light of the failure to exclude other potential causes.

Second, there is no indication that Dr. Yarus' peers competently discover such causal relationships with the spine from a desk. Dr. Hammargren, a neurosurgeon with first hand experience with treatments involving spinal fixation devices, had an opportunity to examine Plaintiff with her symptoms in mind, not for a medical-legal purpose. Surprisingly, Dr. Hammargren did not know of a way to determine, in any given case, whether or not a spinal fixation device (hardware) could be pain producing....

A significant element of the Daubert inquiry is whether the expert has expressed an opinion in the normal practice of medicine, or for purposes of testifying at trial.

*20 That the expert failed to subject his method to peer-review and to develop his opinion outside the litigation is not dispositive, but if these guarantees of reliability are not satisfied, the expert “must explain precisely how [he] went about reaching [his] conclusions and point to some objective source ... to show that [he has] followed the scientific method, as is practiced by (at least) a recognized minority of scientists in [his] field.

Cabrera [v. Cordis Corp.], 134 F.3d [1418] at 1421 [9 Cir.1998] (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.1995) ( Daubert II )).

Dr. Yarus' letter was produced for the purpose of testifying at trial. The only contact Dr. Yarus has had with Plaintiff has been through her attorneys. Also, there is no indication that Dr. Yarus has attempted to treat Plaintiff's injuries or prescribe her any medication. Thus, for Dr. Yarus' opinion to be admissible, it must survive slightly greater scrutiny as directed by Daubert II. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.1995) ( Daubert II ).

Dr. Yarus' opinion merely cites a “cause and effect relationship” between Defendants' product and Plaintiff's alleged injury. Beyond this, the opinion cites conclusions only. Exhibits in Support volume 1(# 39), exhibit # 14. Dr. Yarus failed to “explain precisely how [he] went about reaching [his] conclusions and point to some objective source ... to show that [he has] followed the scientific method, as is practiced by (at least) a recognized minority of scientists in [his] field.” Cabrera v. Cordis Corp., 134 F.3d 1418, 1421 (9th Cir.1998)(quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.1995) ( Daubert II )). Thus, Dr. Yarus' opinion, that the device was defective, should not be admissible in the case at bar.

Id. at *7-8 (footnotes and record citations omitted). Dr. Yarus opinions in this case are subject to identical criticism. In Minisan v. Danek Medical, Inc., 79 F.Supp.2d 970 (N.D.Ind.1999) the court wrote the following concerning the admissibility of Dr. Yarus evidence applying the standards of admissibility under Daubert.: FN98


FN98. We noted in Riccio et al. that the standard of admissibility under Daubert utilized by the federal judiciary is less stringent than that mandated in this Commonwealth by our Supreme Court under Frye and Topa. Riccio. 49 Ches. Co. Rep. at 281. Therefore, we may conclude from the exclusion of Dr. Yarus evidence by the district courts cited, a fortiori, exclusion in this case is required.


In this case, Minisan offers the report of Dr. Lance Yarus as her only evidence. Dr. Yarus is an Osteopath (D.O.) with board certification in orthopedic surgery and pain management. His curriculum vita indicates at least some training in spine surgery as well as in general orthopedics. He has staff privileges at several hospitals and his teaching affiliations include orthopedic surgery. His credentials appear sufficient to survive the “qualification” hurdle in a Daubert analysis. See, McCollin, 50 F.Supp.2d 1119, 1125 (finding Dr. Yarus marginally qualified). However, in addition to sufficient knowledge and training, an expert's testimony must be “reliable.” Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. District courts have routinely found causation lacking where experts offered only conclusory opinions, did not address whether other factors might have caused the plaintiff's injuries, and failed to state why or how he came to his conclusions. See generally, Valente v. Sofamor, S.N.C., 48 F.Supp.2d. 862 (E.D.Wis.1999) (no competent evidence of causation where plaintiff's expert gave conclusory opinions, failed to identify a defect in the design or manufacture of the device and failed to perform differential diagnosis); Cali v. Danek Medical, Inc., 24 F.Supp.2d 941 (W.D.Wis.1998) (no evidence of causation where experts' testimony was not scientifically reliable); Coleman v. Danek Medical, Inc., 43 F.Supp.2d 637, 650 (S.D.Miss.1999) (no causation where expert offered only conclusory assertions, failed to identify causal nexus between Danek's product and harm to plaintiff); Driggers v. Sofamor, S.N.C., 44 F.Supp.2d 760, 765 (M.D.N.C.1998) (no competent evidence of causation where expert failed to rule out other causes of plaintiff's pain). It is on this prong that Plaintiff's expert fails. Dr. Yarus states that he arrived at his conclusions based solely on an examination of Minisan's numerous medical records. He apparently never examined her, met with her or even spoke to her. Neither did he examine or test the TSRH device. Dr. Yarus concludes that “both surgical interventions were the proximate cause of the non-unions and subsequent development of pain.” He also concludes that Minisan's continued disability is directly related to the metallic devices. ( Id.) Under Daubert, the expert “must explain precisely how [he] went about reaching [his] conclusions and point to some objective source ... to show that [he] has followed the scientific method ...” Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1317 (9th Cir.1995) ( Daubert II ). Similar to his reports provided in other bone Screw cases, Dr. Yarus has failed to provide any explanation as to how he reached his conclusions. See McCollin, 50 F.Supp.2d 1119, 1126-27; Hartwell, 47 F.Supp.2d 703, 712-13; Pulice, 1999 WL 613370 at * 5-9; Moses v. Danek Medical, Inc. No. CV 95-512, 1998 WL 1041279 at *7 (D.Nev. Dec.11, 1998). Dr. Yarus has not met the standard set forth in Daubert. The court therefore concludes that Dr. Yarus' opinion is simply insufficient to create a material fact issue for trial with respect to the issue of causation. Accordingly, Danek is entitled to summary judgment on both the strict liability and negligence claims because Minisan is unable to establish a causal nexus.

*21 Minisan at 976-977 (record citations omitted)

Finally, in Wooley v. Smith & Nephew Richards, Inc., 67 F.Supp.2d 703 (S.D.Tex.1999) the court collects those bone screw litigation decisions in which the evidence of Dr. Yarus was determined not to meet the standard of admissibility under Daubert. The court first reproduces an excerpt from Dr. Yarus opinion. The language excerpted is materially identical to that contained in the June 30, 1998 report submitted in this case. The court in Wooley then notes in the margin:

FN1. The conclusion reached by Dr. Yarus in this case typifies this “expert's” apparent penchant for producing what some have called “cookie cutter” opinions for bone screw plaintiffs throughout the United States, because the language used here by Dr. Yarus closely mirrors that used in reports for plaintiffs in other bone screw litigation. See, e.g., McCollin v. Synthes, Inc., 50 F.Supp.2d 1119, 1126 (D.Utah 1999); McLellan v. Sofamor-Danek Group, Inc., No. 95-CV-0322E(H), 1999 WL 222591, at *3 (W.D.N.Y. April 12, 1999); Alexander v. Danek Med., Inc., 37 F.Supp.2d 1346 at 1349 (M.D.Fla.1999); Savage v. Danek Med., Inc., 31 F.Supp.2d 980, 983 (M.D.Fla.1999); West v. Danek Med., Inc., No. Civ-97-575-T, 1998 WL 1041327, at *2 (W.D.Okla.Dec.28, 1998).

Id. at 707 n. 1. The court then writes:

Because these two conclusory paragraphs represent the sum total of Dr. Yarus's analysis, the Court finds it reasonable to hold that Dr. Yarus's opinion lacks any scientific basis. This determination is justified for several reasons, each of which centers around the fact that Dr. Yarus has failed to offer a basis for his conclusions. First, Dr. Yarus has never personally examined the screw manufactured by Defendant, and Dr. Yarus's opinion does not identify any particular defect in Defendant's Simmons Plating System, nor does the report causally relate such alleged defect to Plaintiff Wooley's postoperative complaints. Second, the Court notes that Dr. Yarus has never personally examined Plaintiff Wooley, spoken with any of Plaintiff Wooley's treating physicians, or reviewed X-rays of Plaintiff Wooley's surgical site. Third, Dr. Yarus does not point out any symptoms occurring after the pedicle screw surgery that did not also exist before the surgery, or any basis for concluding that the pedicle screw implant caused Plaintiff Wooley's pain when compared to other possible causes. Instead, Dr. Yarus appears to reach a generic conclusion by making a temporal connection between Plaintiff Wooley's alleged injuries and the surgical implants. See Pulice, 1999 WL 613370, at *5 (pointing out that because Dr. Yarus “has relied on nothing more than litigation reports and lawyer prepared summaries[,] it is reasonably clear that such materials ‘are not of a type reasonably relied upon by experts in a particular field” ’ (quoting United States v. Tran Trong Cuong, 18 F.3d 1132, 1143 (4th Cir.1994))). In the end, Plaintiffs have utterly failed to show that Dr. Yarus undertook a valid scientific methodology in reaching his conclusion that Defendant's Simmons Plating System caused Plaintiff Wooley's postoperative injuries.

*22 Once again, the analysis in Wooley is equally pertinent to the expert's opinion in the case sub judice. The court ends the discussion with a catalog of consonant authorities.

The Court is not alone in its rebuke of Dr. Yarus's opinion testimony. At least ten courts have already excluded Dr. Yarus's testimony in other bone screw products liability cases, calling his opinions methodologically unsound and therefore unreliable. See, e.g., Hartwell [v. Danek Medical, Inc.], 47 F.Supp.2d [703] at 712-13 (finding Yarus's opinion inadmissible under the standards of Daubert and Kumho [Tire co., Ltd. v. Carmichael, 526 U.S. 132 (1999) ] and stating that “Dr. Yarus' ... armchair-quarterback style evades meaningful testing, eludes peer review, and makes error rates incalculable.... Opinions based on his ill regard for the use of pedicle screw fixation are at best conclusory, and, at worst, just bad science and junk medicine”); Goodwin v. Danek Med., Inc., No. CV-S-95-433-HDM, slip op. at 6 (D.Nev. July 8, 1999) (“The Court concludes that an examination of the relevant nonexclusive factors [of Daubert ] establishes that Dr. Yarus' opinion has not been developed by the appropriate scientific method.”); Parks v. Danek Med., Inc., No. 2:95-CV-206, slip op. at 8 (N.D.Ind. June 17, 1999) (excluding Dr. Yarus's causation opinion because his report “merely concluded, without any showing, that the pedicle screws caused [the plaintiff's] alleged injuries”); McLellan, 1999 WL 222591, at *3 (striking Dr. Yarus's testimony as inadmissible under [Federal Rule of Civil Procedure No. 702); Edgar v. Danek Med., Inc., Prod.Liab.Rep. (CCH) p 15668 (M.D.Fla. Mar. 31, 1999) (noting Dr. Yarus's lack of reliability as an expert witness); West [v. Danek Medical, Inc.], 1998 WL 1041327 [W.D. Okl.1998] at *4 (finding Yarus's testimony insufficient to establish causation and granting summary judgment); Moses v. Danek Medical, Inc., CV-S-95-512-DWH, 1998 U.S. Dist. LEXIS 21110, at *17 (D.Nev. Nov. 18, 1998) (noting that Yarus's method of “simple logic as opposed to medical training, experience, and examination” has not gained acceptance in the relevant scientific community, that “there is no indication that Dr. Yarus' peers competently discover such causal relationships ... from a desk [as opposed to using patient examination],” and that Yarus's opinion “cites conclusions only ... Dr. Yarus's opinion ... should not be admissible in the case at bar”); Leigh v. Danek Medical, Inc., No. 4:95-CV797-A, 1998 WL 1041329 at *5 (N.D.Tex. Dec.14, 1998) (stating that “Yarus cannot point out any symptoms that plaintiff had after surgery that he did not have before surgery ... he simply opines that since the plaintiff had pain before surgery and that pain worsened after surgery, the worsened pain must be a result of the instrumentation. The only conclusion to be drawn in this case is that Yarus's testimony was influenced by a litigation-driven financial incentive”); Baker v. Danek Medical, 35 F.Supp.2d 875, 878-80 (N.D.Fla.1998) (holding that Yarus's testimony of a temporal connection between the implantation and plaintiffs symptoms was insufficient to show causation); see also Pulice [v. Smith and Nephew Richards, Inc.]. 1999 WL 613370, [N.D. Ark.1999] at *5 (finding no scientific basis to support Dr. Yarus's opinions because they appear “to be almost entirely unsubstantiated and little more than subjective belief and unsupported speculation”).

*23 Many courts also have dismissed opinions such as Dr. Yarus's, which infer causation from the temporal relationship between pain and implantation surgery. See, e.g., Burton v. Danek Medical Inc., No. CIV.A.95-5565, 1999 WL 118020 at *4-5 (E.D.Pa.Mar.1, 1999) (excluding a plaintiff's expert who failed to perform a differential diagnosis, stating that “there is no connection between [Plaintiff's] medical records and [the expert's] conclusion”); Hickman v. Sofamor-Danek Group, Inc., No. C-95-1095 CW, 1999 WL 606690, at *9 (N.D.Ca. Feb.17, 1999) (stating “[n]either [withess] ... supported his conclusions with peer-reviewed research, identified an objective source of information on which his conclusions were based, or demonstrated that he followed a generally accepted or scientifically reliable diagnostic methodology used by other professionals ... neither doctor's testimony meets the standard for reliability established in Daubert”); Baker, 35 F.Supp.2d at 880 (characterizing Dr. Yarus's opinion that pedicle screw fixation devices are unreasonably dangerous as “hardly generally accepted in the scientific community” and granting summary judgment because “plaintiff has simply failed to provide any evidence, amounting to more than speculation, that demonstrates that the Danek device was defective, unreasonably dangerous or the cause of plaintiff's injuries”); Cali v. Danek Medical, Inc., 24 F.Supp.2d 941, 954 (W.D.Wis.1998) (holding that expert testimony was “unsupported speculation ... not entitled to the dignity of evidence,” and that “where symptoms may be the subject of a variety of causes it is insufficient for an expert to opine as to the cause of the symptom without some scientific basis other than his assertion of general experience”); West, 1998 WL 1041327, at *6 (W.D.Okla.Dec.28, 1998) (commenting that “the court does not understand how the surgery's asserted failure to alleviate the plaintiff's problems ... establishes the required connection between the fixation device and the plaintiff's present condition”); Huntman v. Danek Medical, Inc., No. 97-2155-IEG, slip op. at 7 (S.D.Cal. July 24, 1998) (stating that the fact plaintiff experienced pain after surgery is insufficient, by itself, to create an issue of fact regarding causation); Baker v. Smith & Nephew Richards, Inc., No. 95-58737, 1999 WL 811334, at *33 (152d Dist. Ct., Harris County, Tex. June 7, 1999) (excluding opinion testimony in a products liability case involving S & N's Rogozinski Spinal Rod System because “while [the expert] uses the proper ‘magic words' in his causation testimony, there is no reliable support for his conclusion in the sparse evidence offered by [Plaintiff].... [A]n expert's mere incantation of legally sufficient words or phrases does not make an expert's opinion admissible”).

Given this evidence, the Court finds that Defendant has shown Dr. Yarus's opinion to be wholly lacking in reliability. Therefore Defendant's Motion to Exclude Dr. Yarus's Opinion Testimony is GRANTED.

*24 Wooley at 708-711. The motions of defendants in limine and pursuant to Pa.R.C.P.No. 702 to exclude the evidence of Plaintiffs' expert witness Dr. Lance O. Yarus will be granted.

We next turn to the defendant Synthes' dispositive motion for summary judgment. Our discussion to this point will facilitate the resolution of the remaining issues. In the absence of the evidence of expert witnesses Larson and Yarus and with witness Alexander constrained by agreement and this decision to matters of bioengineering, the Plaintiffs have failed to adduce substantial evidence of the medical cause of the injuries or conditions for which recovery is here sought. In the absence of evidence of causation, all of the Plaintiff's claims against the manufacturer defendant must fall.FN99


FN99. In Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), the United States Supreme Court, reversing the decision of the United States Court of Appeals for the Third circuit thereby, in effect, reinstating the decision of Judge Bechtle for the United States District Court for the Eastern District of Pennsylvania in which the District Court dismissed the MDL 1014 plaintiffs' state fraud counts and, particularly, the counts denominated “fraud on the FDA” in which it was alleged that fraudulent misrepresentations by bone screw manufacturers had the effect of inducing regulatory approval of the devices here at issue.

The court held that the MDA “amply empowers the FDA to punish and deter fraud ...” as among the objectives the agency seeks to maintain in a “delicate balance” that could be “skewod” by permitting state law fraud claims. Id. at 348. Therefore, preemption was required. If it were necessary to do so, we would hold to be preempted the state common law fraud claims here presented.


In this regard there can be no doubt that the medical cause of a complex condition such as is here presented requires expert evidence. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). See also Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1980); Lamber v. Soltis, 442 Pa. 304, 221 A.2d 173, 175 (1966). The absence of such evidence in this case precludes any conclusion as to the cause of the Plaintiff's condition. In the absence of causation, Plaintiff's negligence, negligence per se,FN100 strict product liability,FN101 misrepresentation, fraud, consumer protection act, and conspiracy claims must all fall inasmuch as each theory of relief requires as a necessary element thereof establishment of a causal nexus between the defendant's conduct and the plaintiff's loss.


FN100. See, for example, Glbbs v. Emst, 538 Pa. 193, 207-208, 647 A.2d 882, 889 (1994). Restatement (Second) of Torts § 525 (1977).


FN101. Moreover, In Hahn v. Richtor, 543 Pa. 558, 673 A.2d 888 (1996) the Supreme Court held that strict liability pursuant to § 402A of the Restatement (Second) of Torts was not available in a claim by an injured consumer against the manufacturer or seller of proscription drugs. Only common law negligence claims are viable in that context inasmuch as prescriptions drugs possess inherently dangerous propensities determined to be overborne by their ability to advance the public welfare and health. Prescription medical devices must be analyzed similarly, In Murrary v. Synthes U.S.A., Inc., 1999 WL 672937 (E.D.Pa.1999) the court held the rule of Hahn applicable to the medical devices here at issue and rejected on that basis a back surgery patient's strict liability claim. We would reach the same conclusion if Plaintiff's claims were not barred by the preemption under Buckman and by the failure to adduce substantial causal evidence.


A grant of summary judgment is proper [when] “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa. R.C.P. No. 1035.2. The record is to be viewed in the light most favorable to the nonmoving party, and all doubts as to the presence of a genuine issue of material fact must be resolved against the moving party. Albright v. Abington Meml. Hosp., 548 Pa. 268, 280, 696 A.2d 1159, 1165 (1997) (citations omitted); see also Pa.R.C.P. 1035.1-1035.5. When sought by a party, like these defendants, not charged with the burden of proof, summary judgment may be granted only if at least one of two circumstances is present: (1) the moving party is entitled to judgment as a matter of law: or (2) the nonmoving party has failed to adduce any substantial evidence with respect to a necessary clement of the claim. Pa.R.C.P.No. 1035.

When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Basile v. H. & R. Block, Inc., 777 A.2d 95, 100-101 (Pa.Super.2001). Under Pa.R.C.P.No. 1035.2(2), “if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Godlewski v. Pars Mfg. Co., 408 Pa.Super. 425, 597 A.2d 106, 109 (1991). Correspondingly, “[t]he non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party.” McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa.Super.1998). Where a plaintiff is the non-moving party, summary judgment is improper if the evidence, viewed favorably to the plaintiff, would justify recovery under the theory it has pled. See Kelly v. Ickes, 427 Pa.Super. 542, 629 A.2d 1002, 1005 (1993). In this case, even where the evidence is viewed most favorably to the position of the Plaintiffs, no evidence appears of a causal connection between the actions or inactions of the defendants and the injuries or conditions of Paul Lawrence. Therefore, no recovery could be justified on this record and summary judgment must be granted.

*25 In addition, with reference to the informational causes of action such as the claims for fraud and negligent misrepresentation, express and implied warranty, and the like, the Plaintiff's claims are barred by the learned intermediary doctrine FN102 and by the inability of the Plaintiff to adduce substantial evidence of the surgeon's reliance on any information provided by the manufacturer, Defendant Synthes. Here the surgeon defendant, Wetzel, denied being influenced in any way by communications of Synthes. FN103 Plaintiff has adduced no contrary evidence. Neither has Plaintiff adduced an expert opinion that orthopedic surgeons specializing in instrumented spinal fusions would have been likely to alter their surgical approach if Synthes had provided them with accurate information concerning the matters here claimed to have been the subject of fraud; that is, the absence of testing of the DCP device in the spine and the refusal of the FDA to approve the device for that use. Compare Stanton by Brooks v. Astro Pharmaceutical Products, Inc., 718 F.2d 553 (3d Cir.1983) in which the court held that the opinion testimony of four qualified expert witnesses to the effect that a surgeon's conduct would likely be influenced by correction of the misleading information was sufficient to meet the plaintiff's production burden on causality and reliance. The instant pretrial record contains insufficient evidence to create a triable issue of reliance or causality thereby providing an additional compelling ground for dismissal of the counts sounding in fraud and misrepresentation. Taylor v. Danek Medical, Inc., 1998 WL 962062 (E.D.Pa.1998) at *6. We will grant the motion for summary judgment of Defendant Synthes. On these grounds we must also grant the motion of Wetzel for partial summary judgment with respect to the Plaintiffs' conspiracy claim. See Murray v. Synthes U.S.A., Inc., 1999 WL 672937 (E.D.Pa.1999) at *6.


FN102. In which a manufacturer is permitted to meet its informational duties by informing the physician of risks related to devices which can be obtained only through a physician's intervention. Incollingo v. Ewing. 444 Pa. 263, 288, 282 A.2d 200, 220 (1971); See Parks v. Simeone, et al., MDL 1014, Phila. Common Pleas No. 2492, June 12, 1998. In Murray v. Synthes U.S.A., Inc., 1999 WL 672937 (S.D.Pa.1999) the court rejected identical claims on this, and other equally compelling grounds, we adopt the reasoning of the court in Murray.


FN103. Affidavit of Wetzel taken November 18, 1998 (“Wetzel Affidavit”) at ¶¶ 18, 25-27.


Having granted the Defendants' dispositive motions, the Defendants' motion for bifurcation and for partial summary judgment as well as the Plaintiffs' motions for partial summary judgment, are rendered moot. We will enter an appropriate order.

AND NOW, this 22 day of July, 2002, for the reasons and on the basis of the authorities cited and discussed in the opinion filed simultaneously herewith, the Motion of Plaintiffs to change venue is hereby DENIED; the Motions in Limine of Defendants Synthes, Inc. and Dr. F. Todd Wetzel seeking to preclude the expert evidence of the Plaintiffs' expert witnesses Dr. Carl Larson and Dr. Lance Yarus and to restrict the scope of the evidence of Dr. Harold Alexander, are hereby GRANTED; the dispositive Motion of Defendant Synthes, Inc. for summary judgment with respect to all of the Plaintiffs' claims for failure to adduce substantial evidence creating a triable issue of causality, is hereby GRANTED. The motion of Defendant Dr. F. Todd Wetzel seeking partial summary judgment concerning the Plaintiffs' conspiracy claim is, on the same basis GRANTED. All other pending Motions are hereby DENIED AS MOOT.



APPENDIX “A”

*26 ABC NEWS 20/20 Transcript # 1353 December 17, 1993

HUGH DOWNS, ABC News: Good evening. I'm Hugh Downs.

BARBARA WALTERS, ABC News: And I'm Barbara Walters and this is 20/20....

TIUGH DOWNS: It's a fact that 80 percent of us will have back pain sometime during our lives. Now, for some of those with serious pain, there is a surgical treatment using back screws and every year tens of thousands of people have these screws surgically implanted into their spines. But a 20/20 investigation has uncovered some shocking facts about this technique that have never been reported before.

BARBARA WALTERS: Well, first, the FDA says that these back screws are experimental, Patients don't know that and the results can be disastrous. And how can this happen when they are being used by doctors in hospitals across the country? And isn't the government supposed to protect us from this kind of risk? [voice-over] Tonight Dr. Timothy JOHNSON investigates these important questions .....

JOHNSON: [voice-over] Screws and plates are used in back surgery when there is a concern about the stability of the spine after surgery. In a typical operation, bone from the vertebra is removed. Then, to stabilize the spine, screws are inserted through plates into the part of the vertebra called the pedicle. The risks of the operation are frightening. The pedicle is right next to the spinal column and emerging spinal nerves. If the screws break or are inserted incorrectly, the results can be catastrophic, including permanent nerve damage. And the screws, as first developed in the early '80s, did often break, nearly one in three, according to one early study.... So how did spine plates and screws get unleashed on the public? Before a new device or an old device being proposed for a new use can be marketed, it must be approved by the Food and Drug Administration. Now, plates and screws like this have been approved for a long time for use in long bones-arms and legs-but back in the mid-1980's, Dr. Steffe and his new company, called AcroMed, went to the FDA and asked for the device to be approved for a new use, in the spine, Twice, they said no. They said, “That's a new, potentially dangerous use. It must be studied first for safety and effectiveness.” However, just a few months later, the FDA did approve the device after AcroMed simply changed the name from “spine plates a...."
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Finally, a number of courts FN2 have refused to distinguish between depositions that may be used only for discovery purposes and those that are also admissible as evidence at trial. Courts have reached this conclusion even when opposing counsel has explicitly characterized the deposition as being solely for discovery purposes and have failed to cross-examine the deponent vigorously or even to question him at all. Gill v. Westinghouse Electric Corporation, 714 F.2d 1105, 1107 (11th Cir.1983) (permitting into evidence, over objection based on “exploratory character of pretrial discovery”, deposition of expert witness who died prior to trial); Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722, 724 (5th Cir.1980) (admitting deposition of unavailable expert witness even though parties had identified the deposition as being only for discovery purposes); Wright Root Beer Company of New Orleans v. Dr. Pepper Company, 414 F.2d 887, 890-91 (5th Cir.1969) (holding that even where taken for discovery purposes, “as a matter of right, a party may introduce the deposition of a deceased witness with no strings attached”); Derewecki v. Pennsylvania Railroad Company, 36 F.R.D. 195, 198 (W.D.Penn.1964) (holding that deposition was admissible and defendant was not denied its *338 right to cross-examine deponent, even though deponent died before the completion of deposition), aff'd, 353 F.2d 436 (3rd Cir.1965); Rosenthal v. Peoples Cab Company, 26 F.R.D. 116, 117 (W.D.Penn.1960) (refusing to exclude a deposition taken only for discovery purposes in which opposing counsel “was present but engaged in no interrogation of witness”). See also In Re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975, 635 F.2d 67, 87-88 (2nd Cir.1980) (arguing it was proper to offer deposition of unavailable witness since party had fulfilled all procedural prerequisites) (Mansfield, J., dissenting).

Shives v. Furst
70 Md.App. 328, 521 A.2d 332
Md.App.,1987.
February 13, 1987


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Kurian v. Anisman, 851 A.2d 152, 159 (Pa.Super.2004) (although expert witness not identified during discovery, party may use unidentified expert witness's report as response to motion for summary judgment);
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Gray ex rel. Gray v. Magee
864 A.2d 560
Pa.Super.,2004.
December 16, 2004

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Plaintiff's second expert, accident reconstructionist Dale Moore, died before the case went to trial and therefore his testimony was presented by deposition.

Henderson v. Nissan Motor Corp.,
869 So.2d 62, 2003-606 (La. 2/6/04), La., February 06, 2004 (NO. 2003-C-606)

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The trial court properly denied plaintiff's request to impeach Keavy with a book partially authored by him. It is well settled that a deceased witness whose prior testimony is admitted at trial may not be impeached by a posthumous showing of alleged contradictory or inconsistent statements ( see, People v. Hines, 284 N.Y. 93, 115, 29 N.E.2d 483, overruled in part on other grounds *336 People v. Kohut, 30 N.Y.2d 183, 331 N.Y.S.2d 416, 282 N.E.2d 312).

Cioffi v. Lenox Hill Hosp.
287 A.D.2d 335, 731 N.Y.S.2d 169
N.Y.A.D. 1 Dept.,2001.
October 16, 2001

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One of the expert witnesses presented on behalf of defendant Keavy testified that the condition sustained by plaintiff as a result of the cosmetic surgery performed by Keavy on her eyelids was due to a slight overcorrection, a known complication that did not represent a departure from good medical practice. The jury was entitled to credit this testimony and to reject conflicting testimony from experts presented by plaintiff ( see, Lichtenstein v. Bauer 203 A.D.2d 89, 609 N.Y.S.2d 615; Furia v. Mellucci, 163 A.D.2d 88, 89, 557 N.Y.S.2d 344, lv. denied 77 N.Y.2d 803, 568 N.Y.S.2d 347, 569 N.E.2d 1026). Similarly, the jury was entitled to credit the deposition testimony of defendant Keavy, who died prior to the trial of this matter. Keavy's testimony directly contradicted plaintiff's claim that Keavy had not properly informed her of the risks involved in the surgery she was to undergo. Keavy's testimony in this connection was supported by his notes from the plaintiff's second pre-operative appointment, six days before the surgery. Although the jury was unable to observe Keavy's demeanor and had to rely on documentary evidence and defendant's testimony as transcribed, the jury's credibility determinations in connection with the issue of informed consent were nevertheless based on a fair interpretation of the evidence.

Cioffi v. Lenox Hill Hosp.
287 A.D.2d 335, 731 N.Y.S.2d 169
N.Y.A.D. 1 Dept.,2001.
October 16, 2001


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Copeland v. Stebco Products Corp.,
316 Ill.App.3d 932, 738 N.E.2d 199, 250 Ill.Dec. 235, Ill.App. 1 Dist., September 29, 2000 (NO. 1-99-3940)

Justice FROSSARD delivered the opinion of the court:
Plaintiff, Catherine Jo Copeland, brought this action against defendant, Stebco Products Corporation (Stebco), for an eye injury she sustained while using a portable luggage carrier. Plaintiff's second amended complaint alleged causes of action for negligence and product liability against Stebco. Just before trial, the plaintiff voluntarily dismissed her negligence claim and consolidated the remaining two counts of her complaint into a single product liability count. Stebco denied the allegations and asserted the affirmative defense of assumption of the risk. Stebco also filed a third-party complaint against Jiun Long Metal & Industrial Co. (Jiun Long). Jiun Long filed an answer to the third-party complaint but did not appear or participate in the trial. The jury found for the plaintiff and awarded the plaintiff $3,023,000.

On appeal, defendant contends that: (1) plaintiff violated Supreme Court Rule 213 (166 Ill.2d R. 213) in failing to disclose all of its expert's previously performed tests and measurements on the alleged defective product and a new trial is warranted; (2) plaintiff's counsel made improper and prejudicial comments during closing argument; (3) the trial court erred in directing a verdict for the plaintiff as to the affirmative defense of assumption of risk; (4) the cumulative errors warrant a new trial; and (5) defendant is entitled to a judgment notwithstanding the verdict or, in the alternative, a new trial on its third-party complaint seeking contribution against Jiun Long. We reverse and remand for a new trial.



TRIAL TESTIMONY

At trial, Catherine Copeland demonstrated for the jury how she placed her suitcase on the luggage carrier and put her briefcase on top. She hooked the bungee **203 ***239 cord on the bottom horizontal tube of the carrier and was pulling up on the cord, trying to hook it on the middle bar on the carrier. As she was leaning over the carrier and pulling the bungee cord upwards, the portion of the bungee cord she had hooked on the bottom of the carrier came off and hit her in her eye.

At the time of her injury she was working on her doctorate in *935 education and had a bachelor's degree in elementary education, a master's degree in curriculum instruction, and a reading specialist degree. She taught children ranging from kindergarten to sixth grade. She returned to the classroom but had difficulty, and after trying for six years, she left teaching. As a result of the injury she wears many different types of glasses for reading, driving, watching television and for double vision. Also, her pupil is enlarged, her eyelid droops and her iris is a different color.

Edward Stein, president of Stebco, testified that the luggage carriers were purchased by Stebco from Jiun Long. No instructions or warnings are provided with the luggage carriers, and Stebco does not make any recommendations regarding safe or unsafe ways to use the carrier. Stein stated that the manner in which Catherine Copeland hooked the bungee cord was proper and safe. He reviewed the quality and reputation of Jiun Long products and selected the luggage carrier as one of the products from Jiun Long that Stebco put on the market.

Stebco's expert died before his evidence deposition could be taken, and as a result, Stebco produced no expert witness testimony at trial.

Dr. Holecamp, plaintiff's treating physician, described her injuries as a severe corneal abrasion and contusion injury to the cornea accompanied by severe hemorrhage in the anterior portion of the eye called a hyphema. Plaintiff has had limited success with several surgical procedures and she experiences a permanent loss of depth perception and field of vision, and the vision in her injured eye corrected is only 20/200.

Dennis Brickman, a mechanical engineer, was plaintiff's expert witness. At trial Brickman testified that the luggage carrier is unreasonably dangerous because the bungee cord can achieve a release geometry, which can contact or strike the user in the face. He testified that he had performed tests or experiments to demonstrate the release geometry where the bungee cord hook could release from the bottom of the cart and have a rebound path up toward the user.

In August 1995, Brickman made a videotape after plaintiff demonstrated how she used the luggage cart at the time that she was injured. Despite not recalling all the details of the accident, plaintiff indicated that she was pulling the bungee cord upwards when the hook on the bottom came off and struck her in the eye. The purpose of Brickman's video was to demonstrate the various ways that release or escape geometry could occur involving the bottom hook. The escape geometry, in turn, helped Brickman explain how the hook could separate from the bottom portion of the luggage cart, project into the air, and strike a user. The video contained eight demonstrations of escape geometry illustrating the different ways the bungee cord hook could separate from the bottom rung of the cart.

*936 Brickman gave his discovery deposition in May 1998, during which defense counsel questioned Brickman about his videotaped demonstrations. At trial on cross-examination Brickman testified as to work that he did after his deposition, including additional tests and measurements that were not disclosed to the defendant before Brickman's trial testimony. Defense counsel objected to Brickman's answers to his cross-examination because the answers revealed that Brickman had undertaken additional testing and measurements as well as produced a videotape since his deposition, none of which had been disclosed to **204 ***240 defense counsel. The defense made a motion for mistrial.

Counsel for plaintiff explained that Brickman had performed additional tests and measurements and made an additional videotape after Stebco's expert's deposition. The additional testing and measurements by Brickman were undertaken because Stebco's expert criticized Brickman on the issue of whether Brickman had successfully achieved a release of the bungee cord while keeping the cord within the vertical confines of the handle. However, since Stebco's expert died before giving an evidence deposition, counsel for plaintiff did not question Brickman during direct examination regarding the additional demonstration, measurements, tests and videotape.

The court ruled that the testimony regarding subsequent testing would be stricken with respect to pulling the cord up. The court refused to strike the testimony regarding the new angle measurements, but barred any use of the undisclosed videotape. The court concluded that the expert could testify that escape geometry could be achieved by pulling the cord through the handle, but not that he did further tests. The court stated that Brickman would be prevented from stating any other opinions based upon the undisclosed additional testing and from using the tape. The defense motion for mistrial was denied.

At the close of the evidence, the trial court directed a verdict in favor of the plaintiff and against the defendant on the affirmative defense of assumption of risk. The trial court also ruled that defendant had no duty to warn. The jury was instructed solely on the theory of strict liability for the defective design of the luggage cart. During closing arguments, plaintiff's attorney referred to the Rachel Barton case. The trial court sustained defendant's objection to counsel's reference to the Rachel Barton case. However, defendant moved for a mistrial which was denied. The jury returned a verdict of $3,023,000 in favor of plaintiff and apportioned fault on the third-party claim of contribution with 60% to Stebco and 40% to Jiun Long.



*937 ANALYSIS



I. Did Plaintiff's Failure to Disclose Violate Supreme Court Rule 213?

[1] Defendant argues that plaintiff's violation of Rule 213 denied defendant a fair trial and the trial court should have declared a mistrial after Brickman testified to the jury about undisclosed tests on the luggage carrier. Plaintiff claims there was no Rule 213 violation because her expert's opinion did not change following the undisclosed tests and measurements. Admission of evidence pursuant to Rule 213 is within the trial court's discretion and the court's ruling will not be reversed absent an abuse of discretion. Department of Transportation v. Crull, 294 Ill.App.3d 531, 537, 228 Ill.Dec. 834, 690 N.E.2d 143 (1998).

[2] [3] [4] [5] We begin with the basic premise that the goal of the discovery process in Illinois is full disclosure. Buehler v. Whalen, 70 Ill.2d 51, 67, 15 Ill.Dec. 852, 374 N.E.2d 460 (1977). Supreme court rules on discovery are mandatory rules of procedure that courts and counsel must follow. Warrender v. Millsop, 304 Ill.App.3d 260, 265, 237 Ill.Dec. 882, 710 N.E.2d 512 (1999). “Discovery is not a tactical game; rather, it is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill.App.3d 645, 651, 243 Ill.Dec. 165, 722 N.E.2d 1234 (2000). More specifically, the purpose of the discovery rules requiring timely disclosure of expert witnesses and their opinions is to avoid surprise and to discourage strategic gamesmanship. Warrender, 304 Ill.App.3d at 269, 237 Ill.Dec. 882, 710 N.E.2d 512.

**205 ***241 Supreme Court Rule 213 requires that, upon written interrogatory, a party must disclose the subject matter, conclusions, opinions, bases for the opinions, qualifications, and all reports of a witness who will offer any opinion testimony and seasonably supplement any previous answers when additional information becomes known. 166 Ill.2d R. 213; McGrew v. Pearlman, 304 Ill.App.3d 697, 705, 237 Ill.Dec. 702, 710 N.E.2d 125 (1999). Subsections (g) and (i) provide as follows:

“(g) Opinion Witness. An opinion witness is a person who will offer any opinion testimony. Upon written interrogatory, the party must state:

(i) the subject matter on which the opinion witness is expected to testify;

(ii) the conclusions and opinions of the opinion witness and the bases therefor; and

(iii) the qualifications of the opinion witness; and provide all reports of the opinion witness.



* * *

(i) Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional *938 information subsequently becomes known to that party.” 166 Ill.2d Rs. 213(g),(i).

[6] [7] [8] The committee comments to Rule 213 state that one of the purposes of Rule 213 is to avoid surprise: “It is the Committee's belief that in order to avoid surprise, the subject matter of all opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that no new or additional opinions will be allowed unless the interests of justice require otherwise.” 166 Ill.2d R. 213(g), Committee Comments. The express language of Rule 213 additionally imposes an obligation on a party to supplement discovery whenever new or additional information becomes known to that party. 166 Ill.2d R. 213(i). Therefore, Rule 213 is mandatory and strict compliance is required. Crull, 294 Ill.App.3d at 537, 228 Ill.Dec. 834, 690 N.E.2d 143; Adami v. Belmonte, 302 Ill.App.3d 17, 235 Ill.Dec. 135, 704 N.E.2d 708 (1998). Litigants have an obligation, under Supreme Court Rule 213(i), to disclose the testimony of their experts, even when that testimony responds to the theories of opposing experts. 166 Ill.2d R. 213(i); Boland, 309 Ill.App.3d at 652, 243 Ill.Dec. 165, 722 N.E.2d 1234.

[9] With these considerations in mind, we determine whether plaintiff's failure to disclose the new tests her expert witness conducted after his deposition, the conclusions from those tests and the new measurements violated Rule 213. Defense counsel's theory for trial based on the information disclosed by plaintiff prior to trial, including Brickman's deposition was that Brickman could not verify that the accident occurred in the manner described by plaintiff. It was critical to the defense of this case that Brickman had not determined at what angle the cord had to be pulled to achieve release of the hook from the bottom of the cart and that Brickman had not achieved escape geometry when the cord was pulled in a manner consistent with the testimony of the plaintiff. Brickman gave his deposition in May 1998 during which defense counsel specifically questioned him about whether he could determine the angle of the bungee cord in order to achieve escape geometry. Brickman answered: “I don't recall specifically undertaking that assignment.”

Further referencing the manner in which plaintiff described her actions at the time of the accident, defense counsel during the deposition then asked Brickman if he had demonstrated the movement of the cord or the pull on the cord while the cord was within the confines of the two vertical members that support the handles. Brickman again stated that he had not performed such a demonstration. Defense counsel next asked Brickman whether he achieved escape geometry by pulling the cord straight up when it was attached to the lower center portion of the bar. **206 ***242 Brickman replied that he did not. He also testified that he had no plans to do any further work and that he had not *939 recommended that any further work be done. Based on Brickman's deposition testimony, defense counsel prepared for trial believing that Brickman had not achieved escape geometry by pulling the bungee cord in the manner consistent with the plaintiff's testimony. Therefore, defense counsel's theory for trial was that Brickman could not verify that the accident occurred in the way that plaintiff said it did.

At trial, however, during cross-examination Brickman changed the facts that defense counsel relied upon for his theory of defense. He disclosed for the first time, a test or demonstration he performed following his deposition, that verified the accident could occur in the way described by the plaintiff. The following exchanged occurred between Brickman and defense counsel:

“DEFENSE COUNSEL: Q. Am I correct in order to demonstrate that with this tilted up, you have to pull it away from what would be vertical?

BRICKMAN: A. To some degree, not to the extent you were just demonstrating.

DEFENSE COUNSEL: Q. Well, if you started in the middle, if you started with it [the hook] more or less in the middle like Ms. Copeland testified to, am I correct that if you stayed within the boundaries of this handle in the back, if you stayed within those boundaries, started it more or less in the middle and had it tilted back, that you would never get release geometry?

BRICKMAN: A. That is absolutely incorrect.

DEFENSE COUNSEL: Q. How would you get it?

BRICKMAN: A. You can get the same exact release geometry around the corner while the hook which is in our hand is still within the vertical uprights of the handle.

DEFENSE COUNSEL: Q. By placing and starting it in the middle?

BRICKMAN: A. Yes.

DEFENSE COUNSEL: Q. What would be the force pulling it to the side?

BRICKMAN: A. It would be a hand.

DEFENSE COUNSEL: Q. A hand?

BRICKMAN: A. Yes, like your right hand, just like he is demonstrating in the video there.

DEFENSE COUNSEL: Q. Well, I can get it to do it, I can get it to come off, but I can't, ... can you come down here and demonstrate?

BRICKMAN: A. No, but I have done the demonstration.



* * *

DEFENSE COUNSEL: Q. I think I might have passed it by. This is the first series 1,2,3. My point is that each time this angle here is off just about the corner just about here, right?

BRICKMAN: A. Approximately.

*940 DEFENSE COUNSEL: Q. And that's when it is placed right at the corner, and you are saying that you could develop one so that you could pull it here, it would come off even staying within the bounds of this hand?

BRICKMAN: A. Yes.

DEFENSE COUNSEL: Q. The angles in terms of this movement off to the side were never measured or indicated or are they anywhere in your records?

BRICKMAN: A. I measured them off the videotape.

DEFENSE COUNSEL: Q. You actually have measurements of them?

BRICKMAN: A. Yes.

DEFENSE COUNSEL: Q. The last series?

BRICKMAN: A. Yes.

DEFENSE COUNSEL: Q. Off of the perpendiculars?

BRICKMAN: A. Yes.

**207 ***243 DEFENSE COUNSEL: Q. What are those angles?

BRICKMAN: A. It's approximately between 2 and 8 degrees.

DEFENSE COUNSEL: Q. 2 and 8 degrees away from?

BRICKMAN: A. Vertical.



* * *

DEFENSE COUNSEL: Q. I will just revisit one point with you. We were talking about it before. I think I understand your answer, but attaching this cord on the LC2 to the middle of the bar, am I correct that you have told us that or am I correct that you never actually achieved escape velocity or escape geometry pulling straight up within the boundaries of the handle of the LC2?

BRICKMAN: A. I have achieved escape geometry in the method that you described.”

As the result of Brickman testifying to the fact that he had performed additional measurements and achieved escape geometry which was in direct contradiction to the previously sworn testimony given in his deposition, defense counsel impeached him with his previous deposition testimony as follows:

“DEFENSE COUNSEL: Q. Let me refer you to the deposition then, Mr. Brickman. This is on page 63 if you want to refer to it ... this was the question and answer. Am I correct that you were not-you never achieved any escape geometry by simply pulling the cord straight up when it is pulling straight up parallel with the lines of the cart over the luggage to the handle on top?

There was an objection by counsel, and then your answer was: With respect to this cart, I believe that would be correct.

Is that your answer?

BRICKMAN: A. That was my answer at that time. I have done work since that time since my deposition.”

The defendant objected to the testimony regarding these undisclosed *941 measurements and tests and requested a mistrial which was denied. Plaintiff does not dispute the fact that Brickman continued his work on the case after his deposition and conducted new tests. Plaintiff also does not dispute that these new tests and the conclusions Brickman reached based on these tests were never disclosed to defense counsel. Plaintiff does not contest the fact that since his deposition Brickman measured angles in terms of the vertical movement of the bungee cord as it was pulled upwards. Plaintiff does not contest that Brickman made new measurements off the videotape. Plaintiff does not contest that the measurements and the new videotape were never disclosed to defense counsel. Plaintiff contends, however, that Brickman never changed his opinion after the deposition and that his undisclosed tests and measurements confirmed his previously disclosed opinions about the unsafe condition of the luggage carrier. According to plaintiff, during Brickman's deposition and at trial, Brickman consistently stated that the luggage cart in this case was unreasonably dangerous because of the open-ended hook that could be attached to the bottom bar. Plaintiff claims that because her expert's opinion about the design defect in the luggage cart did not change following the undisclosed tests and measurements, there was no violation of Rule 213.

[10] Plaintiff's argument misinterprets the strict disclosure requirements of Rule 213. A party must disclose not only the specific opinion of his expert but the bases of that opinion. Crull, 294 Ill.App.3d at 538-39, 228 Ill.Dec. 834, 690 N.E.2d 143. Plaintiff further argues that the additional tests and measurements done by Brickman after the deposition were in response to the criticism Brickman received from defendant's expert witness. Defendant's expert witness criticized Brickman on the **208 ***244 issue of whether Brickman had successfully achieved a release of the bungee cord while keeping the cord within the vertical confines of the handle. Plaintiff argues that in anticipation of defendant's expert testimony at trial, Brickman did additional testing to see whether he could achieve escape geometry in that manner. He made a videotape of his efforts and also made additional measurements. However, the death of defendant's expert witness made the “ rebuttal” testimony by Brickman unnecessary. Plaintiff argues that because Brickman's additional tests and measurements were only relevant to rebut defendant's expert, once defendant decided not to call an expert witness, she was not required to disclose this new evidence.

[11] The court in Boland rejected a similar argument. The court held that litigants have an affirmative obligation under Rule 213 to disclose testimony that responds to theories of opposing experts. Boland, 309 Ill.App.3d at 652, 243 Ill.Dec. 165, 722 N.E.2d 1234. While the appellate court in Boland determined *942 that the trial court had not abused its discretion in allowing into evidence previously undisclosed opinions, the court reached that conclusion based on the facts that both parties engaged in gamesmanship, sought to obtain unfair tactical advantage, and violated Rule 213. The court found that the trial court's remedy was appropriate for the circumstances of that case. Boland, 309 Ill.App.3d at 647, 243 Ill.Dec. 165, 722 N.E.2d 1234. However, consistent with the mandatory disclosure requirements of Rule 213, Boland makes it clear that, even if a party believes that some of the bases of his expert's opinion are only relevant to rebut an opposing expert's opinion, the party still must disclose these bases before trial. Boland, 309 Ill.App.3d at 652, 243 Ill.Dec. 165, 722 N.E.2d 1234.

[12] Plaintiff further points out that, although she never supplemented the interrogatories, she never sought admission of the new information either. She argues that the information came out due to the cross-examination by defense counsel. Plaintiff fails to cite to any authority to support the proposition that her failure to supplement the interrogatories with the new tests and information is excused, because the information was elicited during cross-examination. The error here was caused by the plaintiff's failure to disclose her expert's post-deposition tests and measurements, not by the questions posed by defense counsel. Defense counsel based his cross-examination on information previously disclosed. The duty to supplement any new or additional opinion or bases that subsequently become known to a party is mandatory regardless of whether opposing counsel intends to cross-examine on the new information. Seef v. Ingalls Memorial Hospital, 311 Ill.App.3d 7, 21-22, 243 Ill.Dec. 806, 724 N.E.2d 115 (1999). Defense counsel prepared his case, prepared cross-examination, conducted cross-examination and presented a theory of defense relying on the disclosures made by plaintiff. In doing so he specifically relied on the previous sworn testimony of plaintiff's expert, including the fact that plaintiff's expert had not been able to achieve escape geometry by pulling the bungee cord in a manner consistent with plaintiff's testimony and therefore could not verify that the accident occurred in the way that plaintiff described.

Plaintiff argues that Conners v. Poticha, 293 Ill.App.3d 944, 228 Ill.Dec. 441, 689 N.E.2d 313 (1997), supports her contention that she did not violate Rule 213. We find Conners distinguishable. In Conners, the defendant's expert witness, when questioned on cross-examination, offered additional reasons and examples, not previously disclosed, to explain his theory on causation. Applying former Rule 220 (134 Ill.2d R. 220), the appellate court determined that the record indicated that the defendant's expert's opinions rendered in pretrial interrogatories and depositions were consistent with his opinions offered at trial. **209 ***245 Conners, 293 Ill.App.3d at 951, 228 Ill.Dec. 441, 689 N.E.2d 313. The court pointed out that the expert at trial expressed *943 his theories in more “ precise terms,” and his testimony represented “an elaboration or refinement” of the expert's well-established theory on causation. Conners, 293 Ill.App.3d at 950, 228 Ill.Dec. 441, 689 N.E.2d 313. The court also found that the expert's examples and reasons not previously disclosed were within the “ fair scope” of facts known and opinions disclosed before trial. Conners, 293 Ill.App.3d at 951, 228 Ill.Dec. 441, 689 N.E.2d 313.

Here, unlike Conners, the undisclosed bases for Brickman's opinion at trial concerning the escape geometry were not within the scope of the original bases given during the deposition. In fact, according to Brickman's deposition he had not achieved escape geometry by pulling the bungee cord in a manner similar to that described by plaintiff, but by trial the exact opposite was true. As the result of additional tests after his deposition, he was able to achieve escape geometry consistent with the manner described by plaintiff. Brickman reached a conclusion based upon tests, measurements and demonstrations conducted after his deposition and never disclosed to defendant before trial. While in Conners the expert witness elaborated on opinions that were already disclosed during discovery when questioned on cross-examination, in this case, Brickman did more than elaborate on previous opinions. Unlike Conners where the expert's pretrial deposition was consistent with his trial testimony, here Brickman's trial testimony contradicted his deposition testimony. Based on information disclosed during the discovery process, defense counsel was not expecting Brickman to testify that he was able to achieve escape geometry by “pulling straight up.” The defendant's theory was that the accident did not happen in the manner described by plaintiff. Significant to that theory was the testimony of the plaintiff's own expert which defense counsel relied upon that he had not actually ever achieved release of the hook under some of the conditions described by the plaintiff and that such a release would require an element such as a “rollout” of which there was no evidence in this case.

Defense counsel cross-examined Brickman consistent with this theory of defense based on the information disclosed by plaintiff and based on Brickman's sworn deposition testimony. That information and that testimony indicated that Brickman had not actually achieved escape geometry by pulling straight up. To have the expert witness testify that he affirmatively achieved escape geometry in a manner consistent with the plaintiff's testimony was not an elaboration of his previous testimony but rather a critical change in testimony which corroborated the plaintiff's testimony. Plaintiff's failure to disclose the subsequent tests, measurements, and conclusions of its expert witness was a clear violation of the disclosure requirements of Rule 213. We find the case of *944 Seef v. Ingalls Memorial Hospital, 311 Ill.App.3d 7, 243 Ill.Dec. 806, 724 N.E.2d 115 (1999), instructive. In that case, the appellate court reversed a jury verdict in favor of the defendant physician in a medical malpractice action and ordered a new trial due to the effect of the erroneous admission of the undisclosed opinions of the defendant's expert. Seef, 311 Ill.App.3d at 24, 243 Ill.Dec. 806, 724 N.E.2d 115. The appellate court quoted, with approval, the language contained in Department of Transportation v. Crull, that “ ‘Rule 213 establishes more exacting standards regarding disclosure than did Supreme Court Rule 220, * * * which formerly governed expert witnesses. * * * Indeed, we believe one of the reasons for new Rule 213 was the need to require stricter adherence to disclosure requirements.’ ” Seef, 311 Ill.App.3d at 22, 243 Ill.Dec. 806, 724 N.E.2d 115, quoting Crull, 294 Ill.App.3d at 538-39, 228 Ill.Dec. 834, 690 N.E.2d 143.

We note that in this case the trial court acknowledged that the plaintiff violated **210 ***246 the requirements of Rule 213 in failing to disclose the expert's additional tests and his conclusions. The trial court stated:

“A party has a duty to reasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party. It seems to me that this falls under that paragraph. * * * This doesn't say except when it is going to be by legitimate rebuttal response. * * * If he just did additional testing and he didn't come up with any new opinions or anything like that, then it wouldn't make any difference, but here he has got changes. * * * Technically, you haven't complied with the first paragraph of [Rule] 213.”

The trial court, however, denied defendant's motion for a mistrial and instead struck the portion of Brickman's testimony relating to the new testing but not to the measurements. The court further concluded that the expert could give an answer that escape geometry could be achieved by pulling the cord through the handle, but not that he did further tests. For the reasons previously discussed, we conclude that plaintiff violated Rule 213 by failing to disclose the new tests, measurements and conclusions. We next address whether the trial court's ruling was the appropriate remedy for the Rule 213 violations.



II. Did Striking Portions of Expert's Testimony Remedy the Rule 213 Violation?

[13] [14] [15] Whether to declare a mistrial rests within the sound discretion of the trial judge and will not be reversed on appeal unless that decision is a clear abuse of discretion. Van Hattem v. Kmart Corp., 308 Ill.App.3d 121, 129, 241 Ill.Dec. 351, 719 N.E.2d 212 (1999). The standard we use to determine if a party's discovery violation warrants a mistrial is whether the violation is of such character and magnitude as to deprive a party of a fair trial and the party seeking the mistrial demonstrates actual prejudice as a result. Bianchi v. Mikhail, 266 Ill.App.3d 767, 777, 204 Ill.Dec. 21, 640 N.E.2d 1370 (1994). This court *945 has listed the following factors as relevant to an assessment of prejudice: (1) the strength of the undisclosed evidence; (2) the likelihood that prior notice could have helped the defense discredit the evidence; (3) the feasibility of a continuance; and (4) the willfulness of the party in failing to disclose. Sobczak v. Flaska, 302 Ill.App.3d 916, 926, 236 Ill.Dec. 116, 706 N.E.2d 990 (1998).

[16] We find that plaintiff's failure to disclose Brickman's additional measurements, tests and conclusions as to the release geometry substantially prejudiced defendant and denied defendant a fair trial. A critical issue in this case was whether release geometry could occur consistent with plaintiff's testimony. In direct contradiction to his deposition testimony, Brickman's trial testimony concluded that the bungee cord hook could become detached from the bottom rung of the cart while a person pulled the bungee cord “straight up within the boundaries of the handle” and that Brickman had successfully achieved release geometry in that manner. Plaintiff testified that as she pulled the bungee cord upwards the portion of the cord hooked on the bottom came off and hit her in the eye. Therefore, the undisclosed evidence substantially strengthened plaintiff's case. It not only fortified Brickman's opinion about the defect of the luggage cart but corroborated plaintiff's testimony about how the accident occurred. Plaintiff's failure to disclose the additional tests and result of these tests conducted by her expert undermined the cross-examination of defendant, which was based on the previous disclosed opinion, tests and measurements of plaintiff's expert. Defendant prepared his case, chose a theory of defense and conducted his cross-examination of Brickman relying on the belief that Brickman had not successfully achieved release geometry in the manner described by plaintiff as the result **211 ***247 of Brickman's previously sworn deposition testimony.

Defendant did not receive notice of the fact that Brickman had achieved release geometry in the manner consistent with plaintiff's testimony until cross-examining plaintiff's expert during trial. As a result, he had no opportunity to challenge the viability of Brickman's new conclusions or to cross-examine them in a meaningful adversarial manner. Brickman's trial testimony was in direct contradiction to his earlier deposition testimony in a critical area. It is clear that such testimony came as a complete surprise to the defense. This surprise testimony unfairly undermined the defense strategy and undercut the cross-examination. The defense strategy was to persuade the jury that the accident did not happen in the manner theorized by the plaintiff. Critical to that defense strategy was the testimony of plaintiff's own expert that he had not actually ever achieved release of the hook under some of the conditions described by plaintiff. The plaintiff *946 undermined defendant's trial strategy regarding cross-examination of Brickman and discredited defendant's theory of the case when Brickman testified he had achieved escape geometry in the manner consistent with plaintiff's testimony.

[17] Moreover, because defendant was unprepared for the surprise testimony defendant was denied a fair opportunity to cross-examine Brickman on his new tests and measurements. Prior notice would have at least given the defendant an opportunity to discredit Brickman's new tests and measurements. The defense was deprived of any opportunity to review or analyze the tests and measurements before they were revealed for the first time as the result of cross-examination. This is precisely the outcome that Rule 213 seeks to avoid. Rule 213 is designed to give those involved in the trial process a degree of certainty and predictability that furthers the administration of justice and eliminates trial by “ambush.” Firstar Bank v. Peirce, 306 Ill.App.3d 525, 239 Ill.Dec. 558, 714 N.E.2d 116 (1999).

In Bianchi v. Mikhail, 266 Ill.App.3d at 770, 204 Ill.Dec. 21, 640 N.E.2d 1370, defense counsel cross-examined the plaintiff's expert by use of a manual that had not been disclosed. Plaintiff's counsel failed to object but did move for a mistrial the next day. The trail court denied the motion as untimely. The appellate court found the denial of the mistrial to be an abuse of discretion. The court found that a contemporaneous objection would not have been sufficient to cure the prejudice, even if one had been made. Moreover, a recess would have been an insufficient opportunity for the plaintiff to review a document that consisted of several hundred pages. Bianchi, 266 Ill.App.3d at 776, 204 Ill.Dec. 21, 640 N.E.2d 1370. Here a recess would have been an insufficient opportunity for defendant to review or analyze the new tests and measurements.

In this case the trial judge's efforts to remedy the violation of Rule 213, by striking the portion of the testimony regarding the new tests, did not eliminate the unfair prejudice that resulted. Moreover, the court allowed testimony that escape geometry could be achieved by pulling the cord through the handle, which corroborated the plaintiff's testimony. The failure to disclose Brickman's new test, measurements, findings and conclusions gave plaintiff an unfair tactical advantage and allowed for the type of ambush at trial that Rule 213 is intended to prevent. Once Brickman testified about his undisclosed tests, measurements, findings and conclusions which corroborated plaintiff's testimony, defendant could no longer receive a fair trial. Defendant was deprived of the fundamental right to prepare and defend this case. Under the totality of circumstances the trial court's failure to declare a mistrial was a clear abuse of discretion. Accordingly, plaintiff's Rule 213 violation requires us to reverse the jury verdict and remand for a new trial.



**212 ***248 *947 III. Was Reference to the Rachel Barton Case Error?

[18] [19] [20] Defendant next argues that references by plaintiff's counsel to the Rachel Barton case during voir dire and closing argument substantially prejudiced defendant. Although attorneys are generally permitted wide latitude in closing argument, this latitude is not without qualifications. Lauman v. Vandalia Bus Lines, Inc., 288 Ill.App.3d 1063, 1071, 224 Ill.Dec. 434, 681 N.E.2d 1055 (1997). A judgment will be reversed only when the challenged remarks prevent a party from receiving a fair trial. Decker v. Domino's Pizza, Inc., 268 Ill.App.3d 521, 205 Ill.Dec. 959, 644 N.E.2d 515 (1994). In determining whether an improper closing argument has denied a party a fair trial, we are mindful that the reviewing court gives “considerable deference to the trial court as it is in a superior position to assess the accuracy and effect of the counsel's statements.” Decker, 268 Ill.App.3d at 522, 205 Ill.Dec. 959, 644 N.E.2d 515.

[21] We note the $29.6 million verdict in the Rachel Barton case was returned on March 1, 1999 and trial in this case began on April 28, 1999. Plaintiff's counsel with no objection from defense, questioned prospective jurors as to whether they were prejudiced as to either party by the media coverage of the Rachel Barton case. All prospective jurors answered that they were not biased, prejudiced or predisposed to either party. During voir dire plaintiff's counsel referred to the Rachel Barton case or the violinist case, six times; referred to the $30 million verdict in that case twice; and referred to the leg injury in that case once. In light of the close proximity of the trial in this case to the verdict in the Rachel Barton case, together with the extensive media coverage of the Rachel Barton case, questions to prospective jurors regarding possible prejudice as the result of the Rachel Barton case were appropriate. However, plaintiff's reference to the Rachel Barton case in closing argument is more problematic.

[22] [23] [24] The issue is whether the trial court abused its discretion in denying defendant's request for a mistrial or new trial after finding that sustaining defendant's objections to plaintiff's argument cured any prejudice to defendant. Comments on the evidence during closing argument are proper only if proven by direct evidence or if based on a reasonable inference from the facts. Elliott v. Koch, 200 Ill.App.3d 1, 19, 146 Ill.Dec. 530, 558 N.E.2d 493 (1990). Here, despite no evidence introduced during trial about Rachel Barton's case, plaintiff's counsel referred to the case in closing arguments as follows:

“PLAINTIFF'S COUNSEL: Is that a substantial amount of money? It absolutely is a substantial amount of money. And under the circumstances of the injury, I don't think that it will take a lot of justification for you to find that to be an appropriate amount of money.

*948 As recently as two or three months ago this community spoke about what a violinist-

DEFENSE COUNSEL: Objection, your Honor.

THE COURT: All right. I'll sustain objection.

DEFENSE COUNSEL: Thank you.

PLAINTIFF'S COUNSEL: I'll tell you one thing, ladies and gentlemen. The musician who plays the violin at least can get up every morning and still go play the violin.

DEFENSE COUNSEL: Objection, your Honor. We're still talking about a totally different case, a totally different situation.

THE COURT: I'll sustain the objection.

PLAINTIFF'S COUNSEL: I'll change the analogy to a flutist who can still get up every morning without a leg and go do what she loves to do, and that's play the flute. [sic]

An elementary reading teacher who teaches small children every day and **213 ***249 has great demands on her to read, to write, to keep track of the demands that go on in a classroom of second and third and fourth graders running around all over cannot continue her loved profession any more than the flutist could if she lost her arm or her hand or her fingers.”

As the record reflects, after the trial court sustained two objections during this portion of the closing argument, counsel persisted in comparisons not based on the evidence. Such remarks are improper as they are based on neither evidence nor reasonable inference from the evidence. The repetition of the argument after the trial court repeatedly sustained objections served to undermine the fairness of the trial process. Kolakowski v. Voris, 94 Ill.App.3d 404, 50 Ill.Dec. 9, 418 N.E.2d 1003 (1981). Such comment should not be repeated on retrial. The purpose of argument is to draw reasonable inferences from the evidence and assist the jury in fairly arriving at a verdict based on the law and the evidence. It is error for counsel to appeal to the passions of the jury. Hansel v. Chicago Transit Authority, 132 Ill.App.2d, 402, 270 N.E.2d 553 (1971). Counsel must confine closing arguments to matters that are in evidence and to reasonable inferences drawn from the evidence. The improper appeal to the passions of the jury through repeated reference directly or indirectly to the Rachel Barton case, even after objections were sustained, together with plaintiff's failure to disclose the new tests, measurements, findings and conclusions of plaintiff's expert witness was prejudicial and denied defendant a fair trial.



IV. Defendant's Remaining Issues

Defendant's last two issues on appeal challenge: (1) the trial court's decision to grant a directed verdict on defendant's affirmative defense of assumption of risk; and (2) the jury verdict in the third-party *949 action. These issues will ultimately be resolved based upon the facts established by the evidence upon retrial.



CONCLUSION

For the reasons stated above, the judgment of the circuit court is reversed and remanded for a new trial consistent with this opinion.

Reversed and remanded.

--------------------------------------------------------------------------------

Engineering expert could consider statements of gas company employee regarding company's corrosion control measures in determining whether company met state and federal requirements and industry recommendations for corrosion control of natural gas pipeline that exploded, even though employee died before plaintiff completed his deposition; plaintiff had opportunity to cross-examine expert if his opinion on matter was proffered. Fed.Rules Evid.Rule 702, 28 U.S.C.A

Thurman v. Missouri Gas Energy,
107 F.Supp.2d 1046, W.D.Mo., July 31, 2000 (NO. 99-0692-CV-W-3-ECF)

--------------------------------------------------------------------------------

Trievel v. Sabo,
Not Reported in A.2d, 1997 WL 817878, Del.Super., May 02, 1997 (NO. 94C-12-213-WTQ)

QUILLEN, J.
*1 Gentlemen:

This case arises out of a terrible truck-bicycle accident that took the life of Sharon A. Trievel. Ms. Trievel is survived by her three daughters and her mother, who are the plaintiffs. Ms. Trievel (“decedent”) was on her bicycle at the time of the accident and Frederick L. Sabo, Sr. (“defendant”) was the driver of the truck.

At the conclusion of the plaintiffs' evidence on liability, defendant moved for a judgment as a matter of law, pursuant to Rule 50(a) of the Superior Court Civil Rules, asserting, in the language of the Rule, “there is no legally sufficient evidentiary basis for a reasonable jury to find [defendant liable].” The Motion raises two questions: (1) Can a reasonable jury find that defendant was negligent in a manner proximately causing the accident? (2) Can a reasonable jury find that decedent's negligence proximately causing the accident was, in the language of Delaware's comparative negligence statute, “ not greater than the negligence of the defendant?” 10 Del. C. § 8131 (emphasis added). So, the defendant argues by the Motion that, as a matter of law, (1) he is totally without legal fault for the accident or (2) plaintiff, in any event, bears at least 51% of the legal responsibility for the accident.

The Court has no difficulty, on plaintiffs' own evidence, reaching the conclusion that the decedent was negligent in a manner proximately causing the accident as a matter of law. In so ruling, I assume the decedent could lawfully cross the highway at the point that she did, either as a pedestrian or as a bicyclist. The evidence demonstrates that the decedent, in the process of crossing a major highway, got on her bicycle and entered the northbound passing lane in the path of an oncoming truck. She deserted her asserted status as a pedestrian and placed herself in a helpless position by failure to look, failure to see, or proceeding without being able to see. The plaintiffs' decedent was clearly contributorily negligent and her own negligence was clearly a proximate cause of the accident. No reasonable jury could conclude otherwise.FN1


FN1. This is not to say that issue would not be submitted to the jury given the dynamics of a comparative negligence trial. Directing the jury as to one party's liability could inadvertently and mistakenly stack the deck on the comparative negligence factual question. In fact, it is not always clear which way the deck is stacked since the party with the favorable ruling sometimes gets shortchanged because the evidence tends to focus on the open questions.


Our State Supreme Court has stated that the adoption of the comparative negligence statute in 1984 “manifests a legislative intention from that date to retreat from a system of inflexible and unforgiving rules in favor of evaluation of the plaintiffs' conduct on a case-by-case basis.” Koutoufaris v. Dick, Del.Supr., 604 A.2d 390, 398 (1992). Our Supreme Court provided excellent guidance on the crux of the statute in Culver v. Bennett, Del.Supr., 588 A.2d 1094 (1991), a case of “first impression concerning the proper construction of Delaware's modified comparative negligence statute.” Justice Holland wrote:

Under Delaware's common law contributory negligence doctrine, if the plaintiff's negligence was a proximate cause of his or her own injury in any respect, that negligence was an absolute bar to the plaintiff's recovery. A “pure” comparative negligence statute would permit a plaintiff to recover even if his or her percentage of negligence is greater than that of the defendant or defendants, reduced, however, by the degree of contributory negligence. See S. Woods, Comparative Fault 24 (2nd ed.1987). Pursuant to Delaware's modified comparative negligence statute, if the plaintiff's contributory negligence is 50% or less, the plaintiff is permitted to recover, although the recovery is reduced proportionally. However, if the plaintiff's contributory negligence is 51% or greater, it is an absolute bar to recovery according to the Delaware statute.

*2 Id. at 1098.

While the question is not totally free from doubt, the Court is not persuaded at this stage in the proceeding to rule that defendant, as a matter of law, was not negligent in a manner proximately causing the accident. Issues of the defendant's negligence and proximate cause-speed, switching lanes, appropriate care approaching caution lights, driving with an unfastened boat motor in the back of his truck, lookout-are all problematic. But, at this point, all inferences must be drawn in favor of the plaintiffs and the evidence of liability is not complete. Presumably, the currently absent defense expert and the defendant are expected to testify on the question of liability. FN2 At the moment, the case against the defendant is for the trier of fact. Compare Ford v. Hockstetter, S.D.Supr., 85 S.D. 4, 176 N.W.2d 501 (1970) with Landry v. United Servs. Auto. Ass'n., Wis.Supr., 49 Wis.2d 150, 181 N.W.2d 407 (1970).


FN2. The defendant's taped statement to the investigating police officer was read to the jury as part of the plaintiffs' case in chief.


The difficult second question remains. Assuming defendant was negligent in a manner proximately causing the accident in the most severe sense permitted by the evidence, was decedent's causal negligence (fault), as a matter of law, at least a 51% contribution to the accident? Could a reasonable jury find it was only 50% or less? If the jury returned a 50%-50% verdict, would the Court, on motion by the defendant, be obligated to set it aside and enter judgment for the defendant?

There is an initial question of whether it is ever appropriate for the Court to make any ruling as a matter of law on this question since it necessarily involves weighing the given negligence of the decedent and the assumed negligence of the defendant. Defense counsel have supplied a somewhat similar case under a Nebraska statute; the statute evidently permitted recovery by the plaintiff if plaintiff's negligence was slight and defendant's negligence in comparison was gross. In that particular case, defendant's negligence was assumed to be egregious and the Court granted defendant's motion for summary judgment. Hovey v. Hedke, 8th Cir ., 1992 U.S.App. LEXIS 31960 (1992). It should also be noted that, notwithstanding the great deference Delaware grants to juries in negligence cases, our Supreme Court, under the former law of contributory negligence, would rule as a matter of law in negligence matters when only one inference was reasonable. Wooten v. Kiger, Del.Supr., 226 A.2d 238, 239 (1967) (plaintiff in an intersection accident found contributorily negligent as a matter of law even when she had the right of way); Jewell v. Pennsylvania RR. Co., Del.Supr., 183 A.2d 193, 196 (1962) (plaintiff driver contributorily negligent as a matter of law at a railroad crossing); DiSabatino v.. Ellis, Del.Supr., 184 A.2d 469, 474 (1962) (plaintiff driver on unfavored street at intersection found contributorily negligent as a matter of law); Johnson v. Hockessin Tractor, Inc., Del.Supr., 420 A.2d 154, 158-59 (1980) (plaintiff truck purchaser in products liability case contributorily negligent as a matter of law in a manner of adjusting carburetor).

*3 Notwithstanding the fact that “the apportionment of negligence is peculiarly the province of the jury ..., the question should be determined by the Court if no other inference can reasonably be drawn from the evidence that plaintiff's or decedent's negligence was [equal to, or] greater than defendant's negligence, and it is proper to refuse to submit the question of comparative negligence to the jury.” 1 BLASHFIELD AUTOMOBILE LAW AND PRACTICE, § 63.11, pp. 532-33 (3d ed.1965) (brackets added to exclude law inapplicable in Delaware).FN3 It is not only within the power of the Court but it has been said it is “the duty of the Court to so hold.” Schuh v. Fox River Tractor Co., Wis.Supr., 63 Wis.2d 728, 218 N.W.2d 279, 287 (1974). See also Gvora v. Carlson, Wis.Supr., 255 Wis. 118, 37 N.W.2d 848, 849 (1949); McGlothin v. Thompson, Mo.Supr., 347 Mo. 708, 148 S.W.2d 558, 564 (1941).


FN3. Unlike many comparative negligence states, Delaware permits a plaintiff proportionate recovery in a 50-50 situation.


Sometimes, comparative negligence rulings barring the plaintiff are made as a matter of law when the driving appears wanton on its face. Dehnert v. Garrett Feed Co., S.D.Supr., 84 S.D. 233, 169 N.W.2d 719, 721-22 (1969) (hazardous maneuver of driving on wrong side of road). Sometimes criminal law is implicated, such as in driving under the influence cases. Hovey v. Hedke, 1992 U.S.App. LEXIS 31960. But the Courts have not limited holdings to these obvious egregious cases. See Schuh, 218 N.W.2d at 287 (affirming grant to defendant of judgment after jury verdict where jury had found defendant 60% at fault); Gross v. Midwest Speedways, Inc., Wis.Supr., 81 Wis.2d 129, 260 N.W.2d 36, 41 (1977) (reversing judgment and directing trial court to enter summary judgment where jury had found defendant in question to be 80% at fault).

There is no moral element in the evidence of decedent's negligence in this case, no drug use, no alcohol use, no intentional indifference to the safety of others. But the negligence is severe. In addition to the basic facts noted above, decedent was crossing Route 1 (which I assume here, and would find as a factfinder, she was not prohibited from doing) at an intersection which had a light in every direction but the one she was pursuing. She knew the area. She had passed a “Stop” sign and road marking that mandated vehicle traffic go to the right. She was proceeding toward two “Do Not Enter” signs. The roadway had no marked crosswalk or even a natural unmarked crosswalk. Instead of walking her bike across Route 1, which was her habit, she mounted her bike at or near the start of the roadway and pedaled in advance of oncoming traffic on the nearest northbound lane and then pedaled into the northbound passing lane of traffic without maintaining a proper lookout and taking adequate care for her own safety. Even granting her permitted use of the roadway as a pedestrian or bicyclist, surely she was on notice that this was a highly dangerous place to cross a heavily traveled four-lane highway and that she was proceeding in a totally unfavored direction. The circumstances would cause a reasonable person to exercise a great deal of discretion and reasoned judgment. As plaintiffs' expert said, decedent obviously should not ride out in front of an oncoming car.

*4 To put the comparison in the legal arena, decedent's behavior, already found negligent as a matter of law, clearly approached wanton behavior, wanton disregard for her own safety. She may have committed an act so unreasonable or dangerous that she should have known there was an imminent likelihood of harm to herself. Indeed, such activity is also inherently dangerous to others. To put it more precisely, if the law would permit contributory wantonness, and if she had been hit by a driver driving wantonly, the Court would have, on request, submitted contributory wantonness to the jury.

On the other side of the coin, there is no possible way that Mr. Sabo's conduct could be considered wanton. The best complaint against him, considering the allegations either singularly or collectively, would amount to simple negligence.

There is understandably an attempt to build a case, with inference upon inference, that Mr. Sabo made a seriously negligent maneuver, changing lanes, which in some aggravated fashion caused the accident. Stated simply, Mr. Sabo pulled from the right lane to the left passing lane at the last minute, accelerated approaching a caution light with a large boat motor in the back of his pick up. Counting Mr. Sabo, whose statement to the police is in evidence, there were seven eye-witnesses to this accident. None of them implicates Mr. Sabo; none say he was speeding (at least three specifically estimate he was not); none say he was, at the critical time, doing anything except traveling rather normally in the left passing lane; none say he had time to react to the decedent. An eighth witnesses, decedent's fiancee, who had “shot across” the highway, heard “skids” and a “thud.” Even Mrs. Grabowski, whose trial testimony has taken a defensive mode as compared with her earlier statements to the police, will not fault the defendant. Plaintiffs' counsel, in an outburst of optimism, purports to get some comfort from Mr. Lingo's testimony that simply is not there-the truck driver, who purportedly went from the right lane to the left lane, if at all, did so “400 to 500 feet” prior to the accident and “didn't have a chance” to avoid the accident. It is hard to tell whether plaintiffs want to credit or discredit Mr. Lingo, but the expert's “cone of vision” discredit disappears if Mr. Lingo happened to turn his head slightly. The only evidence to support plaintiffs' theory is found in two conclusions of the plaintiffs' accident reconstruction expert: defendant was going 45 mph FN4 and defendant's swerve to the left started in the right lane. The later highly speculative opinion probably should have been excluded; but, even if it is given full credit, defendant was permitted to change lanes and there can be no doubt that the chief swerve here was caused by an effort to avoid the accident. The evidence as to the boat motor, not an unusual resort load, was nebulous at best and pick up trucks are built to carry loads. In short, there is nothing here but a modest jury liability case on the issues of defendant's negligence and proximate cause. The defendant's causal negligence, if any, was modest indeed and at best a jury question of simple negligence is presented.


FN4. Both sides have agreed the governing speed limit was 40 mph. This is kind of strange because the photographs in evidence only show 45 mph signs, almost immediately after this intersection, and it is easy to question the wisdom of raising the speed limit on Route 1 between Route 273 and Rehoboth Avenue. It may be that the speed limit was lowered for the bridge and not raised because the traffic signal here is within several hundred feet of the bridge. But, in any event, 40 mph is the governing speed limit.


*5 Approaching this matter as the Court has, by what the Court would submit to a jury, is of course not, either legally or factually, a finding of wantonness as opposed to negligence. But the analysis and the necessary underlying facts do satisfy the Court that a reasonable jury must find the decedent's causal fault was at least 51%, regardless of any finding with regard to the conduct of the defendant.

I think, for purposes of review, I would be remiss if I did not mention the procedural background of the present motion. This jury trial started on April 21, 1997 and continued through mid-day April 23. It was to resume on April 28, pursuant to the original schedule. After the break on April 23, it was learned that the mother of the defendant's expert witness on liability had died in Poland and, notwithstanding some effort to obtain the expert's trial deposition, he, due to pressing family circumstances, had to depart on the evening of April 23 and would not practically be available again until May 19, 1997. When the Court, while trying to figure out what to do logistically, learned that the defendant was going to move for judgment as a matter of law, the Court, to make the record for the motion, directed the plaintiffs, who had almost finished their case as to liability, to finish the liability case on April 28, which the plaintiffs did. Thereafter, the trial was recessed for three weeks, until May 19, 1997. While I think all participants want the trial to continue (it is an emotionally and financially draining trial), there is an underlying recognition that we may be expecting the jury to do an impossible task in remembering and distinguishing the evidence. While this Judge is not a fan of jury note-taking, this is one time I wish I had so permitted.

I note all of this background in the present context for two purposes. First, the logistical situation at hand helps indicate why the Court has gone herein to such lengths to explain its ruling in writing; it is not a ruling sparked by convenience and is one the Court feared it would have to make as the case unfolded early on. Plaintiffs have a weak liability case. Second, if the trial logistics had been more routine, I want to acknowledge that I would reserve decision on the present motion both after the plaintiffs' case and at the close of all the evidence. I would grant it only after reconsideration on the full record in the event the jury found for the plaintiffs. I assume, barring a complete suicidal disaster in the defendant's case, the ruling would be the same; but, in the event of an appeal, the Supreme Court would have the option to re-enter the verdict. I regret I do not think that should be done in this case. This decision by the Court as a matter of law is a close call; but it is the Court's to make and the Court will make it. I am not going to reserve decision in the present situation because of my concern about our ability to make a meaningful presentation to the jury. If the trial were to continue, there would be probably at least a full week of trial to go, including a promised view in Sussex County. Since, in my opinion, the defendant is entitled to judgment as a matter of law now, I am going to act in accordance with my “duty” now and not hedge my bets by awaiting confirmation of my viewpoint through the verdict of the jury. Under the circumstances of the case, the jury should be discharged and judgment entered now for the defendant as a matter of law.

*6 With regard to the jury, I have only received one letter (from Juror # 14) requesting to be excused due to a pre-planned vacation. I have this date excused that juror.

I plan to discharge the whole jury at the end of next week. If the plaintiffs want to reargue the current Motion for Judgment as a Matter of Law and preserve the jury, please file the Motion to Reargue early next week.

JUDGMENT IS ENTERED FOR THE DEFENDANT AS A MATTER OF LAW. IT IS SO ORDERED.

Del.Super.,1997.
Trievel v. Sabo
Not Reported in A.2d, 1997 WL 817878 (Del.Super.)
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
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Re: Hearsay Issues: Very Important!!!

Postby Administrator » Mon Sep 29, 2014 10:54 pm

Hatch v. State Farm Fire and Cas. Co.,
930 P.2d 382, Wyo., January 13, 1997 (NO. 95-7Cool

Before TAYLOR, C.J.,FN* and THOMAS, MACY and LEHMAN, JJ., and O'BRIEN, District Judge.


FN* Chief Justice as of July 1, 1996.


THOMAS, Justice.
The theme of this case is that Frank J. Hatch, III (Mr. Hatch), Wendy Hatch (Mrs. Hatch), Frank J. Hatch, IV, Anna Corinna Hatch (Corinna), Robert Matthew Hatch and Michael Logan Hatch, (the Hatches or Hatch family) were deprived of their collective right to a fair trial on their claims for benefits under a home fire insurance policy; a duty of good faith and fair dealing in resolving their policy claim; and were subjected to intentional infliction of emotional distress. After this court remanded the Hatches' first appeal, Hatch v. State Farm Fire and Cas. Co., 842 P.2d 1089 (Wyo.1992) ( Hatch I ), they lost the jury trial. The Hatches now present a litany of issues all designed to establish some error that deprived them of a fair trial. We hold that there is no merit in any of their claims of error. The directed verdicts for agents Garry Kitchens (Kitchens) and Dennis Murphy (Murphy), and for State Farm Fire and Casualty Company (State Farm) on the issue of punitive damages are affirmed. The judgment in favor of State Farm, entered upon the jury verdict, is affirmed.

The Hatches set out eleven issues in their Appellants' Brief on Appeal to Wyoming Supreme Court as follows:

I. Was it proper for the trial court to instruct the jury on a defense that was not contained or defined in the insurance contract between the Plaintiffs and the Defendant State Farm?

II. Did the trial court properly instruct the jury not to consider the fact that Mr. Hatch was acquitted on criminal arson charges even though State Farm's role in *386 Mr. Hatch's arson prosecution formed part of Mr. Hatch's bad faith claim, even though evidence regarding the criminal trial had been admitted throughout the trial, and even though the court referred to the criminal trial in other instructions?

III. Was it error for the trial court to instruct the jury not to consider the Hatches' damages resulting from State Farm's denial of coverage when the Hatches asserted a cause of action for coverage?

IV. Was it inconsistent with the principles established in Hatch I for the trial court to instruct the jury that it must not award damages resulting from the denial of coverage?

V. When the evidence is presumed to be true and construed in favor of the Hatches, was it proper and consistent with principles established in Hatch I for the trial court to direct a verdict in favor of Defendant Kitchens? Defendant Murphy? Defendant State Farm as to punitive damages?

VI. Is it proper under Rule 32 to edit and re-arrange and revise the deposition of an “unavailable” deponent-as was done in this case-and to eliminate testimony even though no valid objections were made at the time of the deposition and where objections might have been obviated or cured if an appropriate objection had been made when the deposition was taken?

VII. In a case involving bad faith and unfair dealing, was it error for the trial court to eliminate from a 1991 deposition all questions in which the term “good neighbor” was used where no objections on that ground were asserted and where that issue was never raised at the time the deposition was taken and where the deponent is “unavailable” within Rule 32?

VIII. Was it error for the trial court to refuse to admit the Hatches' application for insurance coverage even though the application was relevant to issues of coverage, bad faith, and State Farm's conduct vis-a-vis the Hatches?

IX. In an insurance bad faith case, was it error for the trial court to admit confidential and legally protected evidence of the Hatches' daughter's juvenile record and counseling concerning an event when [sic] occurred three years prior to the fire at issue in this case?

X. Was it error for the trial court to reject the Hatches' claim for attorney fees under Wyo. Stat. Ann. § 26-15-124, which was enacted to protect policyholders from expensive litigation when insurance companies engage in unreasonable conduct and deny their claims. [sic]

XI. In view of all the erroneous or unfair rulings in this case, is it reasonable to conclude that those errors or unfair rulings are harmless when viewed from the standpoint of their cumulative effect?

In the Brief of Appellees, State Farm, Garry Kitchens and Dennis Murphy reframe the issues as follows:

1. Whether the district court should be reversed based on objections waived at trial.

2. Whether Appellants have failed to establish prejudicial error.

3. Whether Appellants' arguments regarding damages are moot in light of the jury's findings against them as to liability.

4. Whether the district court properly instructed the jury on State Farm's arson defenses.

5. Whether the district court correctly directed a verdict on Appellants' intentional infliction of emotional distress claims.

6. Whether the district court abused its discretion in making the three evidentiary rulings challenged on appeal.

7. Whether the district court properly denied Appellants' request for attorneys' fees.

In Hatch I, we summarized the underlying facts in the case in this way:

A fire was discovered in the basement of appellants' house about 2:00 a.m. on August 4, 1987. The fire started in the southwest corner of the house. Gasoline was found in carpet samples after the fire. The nearest source of ignition was a wood-burning stove fifteen feet away which had a hot fire box twelve inches off the floor. Firemen found a gasoline container in the garage, lying on its edge under a chair, *387 with the broad side against the garage wall. An explanation for how gasoline was detected in the basement was that the family dog knocked the gas can over and the contents ran through a crack in the garage floor, down the outside of the basement wall, then under the wall and into the basement.

Appellees' [State Farm's] claims specialist, appellee Garry Kitchens responded to notice of the fire; he was replaced five days later. He made no estimates, and did not review any work produced by State Farm's investigation nor participate in any decisions. Kitchen's replacement, appellee Dennis Murphy, continued the investigation of appellants' claim. He stated that his work represented his “best and most conscientious effort” and that his recommendations represented his “honest belief that Mr. Hatch started the fire in his house.” Appellant Frank J. Hatch, III was charged with arson. An Albany County jury returned a not guilty verdict.

Hatch I, 842 P.2d at 1091. We considered the summary judgment entered by the trial court in Hatch I, and our dispositive paragraph reads:

Affirmed in part, reversed in part, and remanded for trial on the claim for benefits under the policy and the cause of action for violation of a duty of good faith and fair dealing.

Hatch I, 842 P.2d at 1099 (emphasis added).

The case then was tried to a jury on the three remaining claims asserted by the Hatch family. These included a claim to recover the policy benefits, a claim for bad faith in the claims handling practices of State Farm, and a claim for intentional infliction of emotional distress. The district court directed verdicts for Kitchens and Murphy, and also directed a verdict for State Farm on the claim of intentional infliction of emotional distress and the issue of punitive damages. The jury returned a verdict in favor of State Farm on the remaining claims against it for recovery of the policy benefits and bad faith in the handling of the claim.

In the course of their case in chief, the Hatches offered the discovery deposition testimony of an expert witness, Carrol M. Cloyd (Cloyd), into evidence pursuant to Wyo. R. Civ. P. 32 because Cloyd had died before the trial. At the deposition, Cloyd had been qualified as an expert on insurance industry standards for good faith and fair dealing in the investigation and handling of insurance claims. Cloyd then had identified thirteen areas in which, in his opinion, State Farm failed to meet the industry standards for investigation and handling of the Hatches' claim. His testimony was relied upon to demonstrate that State Farm's investigation and handling of the Hatches' claim did not comply with industry standards. After a very deliberate consideration, the court summarized and then excluded ten of the thirteen areas of Cloyd's testimony. The court ruled that the testimony was beyond Cloyd's area of expertise because he had not been qualified to testify on the severity of emotional distress and no foundation had been laid to demonstrate that he was an expert in arson, nor had there been available to him the opinions of other experts in that area when he testified.

Prior to trial and during trial, a major problem arose with respect to the preparation of jury instructions. In a letter sent during the pre-trial period, the district court anticipated problems with the jury instructions because of the extreme acrimony between counsel. The court directed counsel to meet on a particular date to resolve as many jury instructions as possible and produce a joint draft of a verdict form. On the date of the court directed meeting, counsel advised the court by correspondence that they could not agree on anything. Instead, the respective parties separately submitted their proposed instructions, and the court then compiled a set of instructions to be used by counsel as a starting point to end the impasse. Even after these efforts, the jury had to wait for instructions before beginning its deliberations because a final instruction conference had to be conducted.

The court ultimately composed a set of thirty-one instructions and gave those to the jury. The jury returned a verdict in which it stated that State Farm did “establish by the preponderance of the evidence that the cause of the fire in the Hatch residence on August *388 4, 1987 was the intentional setting of the fire by Francis J. Hatch, III.” Recovery of the policy benefits was denied, and in addition, the jury found against the Hatches with respect to all of their causes of action for bad faith in the handling of the claims. The Hatches appeal from the Order on Directed Verdict Motion and Judgment on Jury Verdict.

We consider first the claims of error relating to the evidence. These are captured in Issues VI, VII, VIII, and IX set forth by the Hatches. Error on the part of the trial court is charged in the redaction of certain testimony from the Cloyd deposition; in the refusal to admit into evidence the application for insurance that the Hatches submitted to State Farm; and in admitting testimony and evidence relating to the daughter's juvenile record and psychological testing and counseling.

The Hatches assert an abuse of discretion on the part of the trial court in the redaction of portions of the Cloyd deposition. They argue that the court refused to comply with Wyo. R. Civ. P. 32,FN1 when it allowed State Farm to object at trial to a matter that was not objected to at the time of the deposition. The Hatches' position is that the failure to object eliminated any opportunity of obviating or removing the problems at the time of the deposition. Furthermore, they assert error in permitting State Farm to object to its own questions and answers included in the deposition. Rule 32, Wyo. R. Civ. P. alludes to the rules of evidence which are applicable in all actions and proceedings in the courts of this state with limited exceptions, none of which are applicable in this case. Wyo. R. Evid. 1101.


FN1. Wyo. R. Civ. P. 32 (emphasis added) provides in pertinent part:

(a) Use of depositions.-At the trial * * *, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:


* * * * * *


(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(A) That the witness is dead;


* * * * * *


(b) Objections to admissibility.-Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.


* * * * * *


(d) Effect of errors and irregularities in depositions.


* * * * * *


(3) As to Taking of Deposition.

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.


In addition to the rules of relevancy, Wyo. R. Evid. 401, 402, and 403, Wyo. R. Evid. 702 (emphasis added) is pertinent to resolution of the redaction issue:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We have held that it is not the purpose of Wyo. R. Evid. 702 to provide blanket admissibility of expert testimony, but instead, to vest the trial court with the discretion to determine whether to exclude testimony deemed *389 unnecessary or not helpful to the trier of fact. Anderson v. Louisiana-Pacific, 859 P.2d 85, 87 (Wyo.1993). See Reed v. Hunter, 663 P.2d 513 (Wyo.1983).

[1] A major issue about Cloyd's testimony concerned questions he was asked about State Farm complying with the standard it had established by its advertising. According to the Hatches' theory, State Farm had engaged in an advertising campaign that features the slogan, “Like a good neighbor, State Farm is there.” Seven of the ten areas, which were excluded by the trial court, elicited testimony from Cloyd as to whether, in his opinion, State Farm's actions complied with the standard expected of good faith and fair dealing and “a good neighbor.” The trial judge pointed out:

* * * I think using good neighbor as part of the standard changes the standard and I don't think that is appropriate. The legal standard of good faith and fair dealing is not the same as whatever the standard may be for being a good neighbor.

The questions and answers in Cloyd's deposition went beyond the industry standard for good faith and fair dealing in the investigation and handling of insurance claims. They purported to provide his opinion with respect to an extraneous and non-legal standard. The provision in Wyo. R. Evid. 702, concerning opinions of experts offering “specialized knowledge” that “will assist the trier of fact,” does not justify such testimony. Cloyd's opinion, as to whether the advertising established a standard and on how a “good neighbor” would act, required no specialized knowledge, nor could it have assisted the jury in understanding the evidence or determining any of the facts in issue. It properly was excluded. His opinion as to how a “good neighbor” would act was beyond the realm of his expertise.

The ruling of the trial court was apt and precise. The district court appropriately redacted testimony by Cloyd in which he was not a qualified expert. Furthermore, through the testimony of Robert C. Haberkorn and John W. Crowe, the Hatches ultimately did get in evidence regarding the industry standard for good faith and fair dealing in investigation and handling of insurance claims and bad faith in the handling of Hatches' claims. This evidence made the deposition testimony of Cloyd repetitious and cumulative.

[2] The other three areas excluded by the trial court from Cloyd's deposition were beyond his expertise; not directed to the industry standard; cumulative; irrelevant; or consisted of information that did not require an opinion of an expert. He had testified at the deposition with respect to reviewing the carrier's operating procedure manual. He stated an opinion about a warning from the State Farm sales agent regarding the difference between actual cash value coverage and replacement cost coverage. He also testified that the process invoked to establish the explanation by the Hatches of how the fire started was not correct. All of this testimony properly was excluded by the trial court in the exercise of its discretion.

[3] Relying upon language found in Wyo. R. Civ. P. 32(d)(3)(A) and (B), the Hatches also argue that State Farm waived its right to object because the objections might have been obviated or removed if made at the deposition. Parties cannot be deemed to have waived an objection to relevance at the time of the deposition. The district court did not abuse its discretion when it refused to honor this justification for the utilization of Cloyd's deposition testimony.

[4] [5] [6] [7] The Hatches also claim error because the trial court refused to admit into evidence their application for insurance from State Farm. They contend language in that application is relevant to coverage under the policy; relevant to their expectations; and relevant to bad faith. Our rule is that, if an insurance policy is unambiguous, the court's examination is confined to the four corners of the integrated contract, and extrinsic evidence is not admitted to contradict the plain meaning. Doctors' Co. v. Ins. Corp. of America, 864 P.2d 1018 (Wyo.1993). Furthermore, the agreement cannot be contradicted or construed contrary to the clear language encompassed in the agreement simply on the basis of asserted extrinsic evidence of the subjective intent of parties to the contract. *390 Hayes v. American Nat. Bank of Powell, 784 P.2d 599 (Wyo.1989). We agree with the holding of the South Dakota court that the standard for construing a fire insurance policy evidences an intent to put the entire insurance contract into the hands of the insured in one instrument. Orr v. National Fire Ins. Co. of Hartford, Conn., 50 S.D. 519, 210 N.W. 744, aff'd, 52 S.D. 513, 219 N.W. 119 (1928). A Georgia court of appeals has held specifically that an application for a fire insurance policy is not part of the contract. United Ins. Co. of America v. Hadden, 126 Ga.App. 362, 190 S.E.2d 638 (1972). We hold that the trial court correctly ruled in excluding the application for the insurance policy from evidence because it was not part of the contract.

[8] The last claim of error with respect to the evidence relates to the assertion that the court erroneously admitted into evidence the report of Corinna's juvenile court record along with a report of a psychologist who examined her. The Hatches argue that these records, made three years prior to the fire, were irrelevant, unfairly prejudicial, and subject to Wyoming's confidentiality statutes. The trial court admitted into evidence copies of documents that were in Mr. Hatch's briefcase at the time of the fire, including the reports relating to Corinna about which complaint is made; Mr. Hatch's military records; a report of a twenty-five-year-old psychiatric examination of Mr. Hatch; a love poem written by Hatch to his wife twenty-five years previously; miscellaneous old financial records; insurance coverage; an insurance renewal notice; letters; a book Mr. Hatch was authoring; and information on the purchase of the Hatch home.

In Furman v. Rural Elec. Co., 869 P.2d 136, 145 (Wyo.1994) (citations omitted), we captured the rule relating to decisions as to the admissibility of evidence in this way:

A trial court's decision on the admissibility of evidence will be affirmed by this court unless it is demonstrated that there has been a clear abuse of discretion. This standard applies to trial court decisions concerning the “adequacy of foundation” and relevancy. Furman [the appellant] bears the burden of proving that the trial court acted unreasonably in admitting this evidence.

The court admitted the records relating to Corinna into evidence, but limited their purpose pursuant to Wyo. R. Evid. 105 as follows:

THE COURT: Ladies and gentlemen of the jury, [defense exhibit] Q is being admitted for the sole purpose of showing what Mr. Murphy had available to him during his investigation and what items are available to him as part of that investigation. You may also consider them in regard to any motive that Mr. Hatch may have had for starting the fire in as much as there has been an inference or implication at least, that what someone tries to save from fire may reflect that.

You're not to consider any of the documents in Q for any other reason. You're not to consider them for the truth of the matter asserted in any of those documents.

Corinna's records were included within the limited purpose and were appropriately admitted.

The Hatches argue that the probative value of these records was outweighed by the danger of unfair prejudice. They speculate that these records induced the jury to consider Corinna's history as a reflection on the character of her parents and as a determining factor of the likelihood that Mr. Hatch started the fire. They point to nothing in the record to justify this other than speculation, and it clearly is beyond the limited purpose for which the records were admitted. We find no error based upon that argument.

[9] In addition, the Hatches profess the admission of these records violated Wyoming statutes. They rely upon the provisions of Wyoming's Juvenile Court Act, Wyo. Stat. §§ 14-6-201 to -243 (1994), and Wyo. Stat. § 6-3-110 (1988) which provides:

An authorized agency or insurance company which receives information pursuant to W.S. 6-3-108 through 6-3-110 shall hold the information in confidence except when release is authorized by the source of the information, by W.S. 6-3-108 through 6-3-110 or by a court of competent jurisdiction.

*391 The Hatches concede the trial court may have been a court of competent jurisdiction under this latter statute, but they argue the court failed to account for pertinent language in Wyo. Stat. § 14-6-203, which reads:

(g) All records made, received or kept by any municipal, county or state officer or employee evidencing any legal process resulting from allegations of a minor's misconduct other than violation of a municipal ordinance are confidential and subject to the provisions of this act. The existence of the records or contents thereof shall not be disclosed by any person unless:


* * * * * *


(ii) The person the records concern is under eighteen (1Cool years of age and, in conjunction with one (1) of his parents or with the ratification of the court, authorizes the disclosure; or

(iii) The person the records concern is eighteen (1Cool years of age or older and authorizes the disclosure.

This statute, which is addressed to a state agency, had no application to the court's ruling.

We turn to the claims of error regarding the jury instructions. In State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 831-32 (Wyo.1994), we explained that in reviewing for error with respect to jury instructions, we address the claimed error in both a procedural and substantive context. From the procedural perspective, substantive review will depend upon an appropriate objection, which is required by Wyo. R. Civ. P. 51. The purpose is to advise the trial court of the precise nature of the claim so the judicial discretion is appropriately exercised. We consider the charge as a whole and in the light of the entire record from pleadings through argument to the jury. Our goal is to identify any prejudice, and the standard is whether the charge is a comprehensive, balanced and essentially accurate statement of the law that is not likely to confuse or mislead the jury.

[10] In the absence of an objection, we apply the doctrine of plain error as set forth in Hampton v. State, 558 P.2d 504, 507 (Wyo.1977) (citations omitted):

[T]his Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, * * *. Further, the proponent * * * must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. * * * [T]he error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept * * *.

In Goggins v. Harwood, 704 P.2d 1282, 1291 (Wyo.1985), we quoted from Gore v. State, 627 P.2d 1384, 1388-89 (Wyo.1981), the ultimate consideration:

Thus, unless an instruction can be said to have plainly caused a fundamental prejudice to the * * * [party's] legal rights, we will not overturn it on appeal unless it was objected to during the trial and a proper instruction was offered in its place.

[11] The Hatches' first claim of error regarding the jury instructions, attacks the instructions relating to the arson defense asserted by State Farm. FN2 In briefing their *392 objection to these instructions, the Hatches argue that the insurance policy from State Farm provided only two defenses. They contend that State Farm advanced a third defense called the “arson defense,” and the district court erroneously allowed the jury to be instructed on this third, nonexistent defense.


FN2. Those instructions are:

INSTRUCTION NO. 7


* * * * * *


You are, therefore, instructed that the plaintiffs are entitled to recover $33,275.00 from defendant State Farm Fire and Casualty Company, unless State Farm has proven its arson defense by a preponderance of the evidence. If State Farm proves that defense, as defined in other Instructions, your verdict must be for the defendant and against all plaintiffs on the claim for policy benefits for damage to personal property.


* * * * * *


INSTRUCTION NO. 8

In order to establish its defense of arson to the policy benefits claim, the defendant State Farm Fire and Casualty Company must prove by a preponderance of the evidence that the fire was intentionally started by Frank J. Hatch, III.

INSTRUCTION NO. 28

Defendant, State Farm, raises an arson defense to the Plaintiffs' action to recover for a fire loss under their policy. Plaintiffs are entitled to prevail on the arson defense if you find that the cause of the fire was accidental and thus not incendiary.


The insurance policy discloses that it can be voided under the following circumstances:

Intentional Acts. If you or any person insured under this policy causes or procures a loss to property covered under this policy for the purpose of obtaining insurance benefits, then this policy is void and we will not pay you or any other insured for this loss.


* * * * * *


Concealment or Fraud. This policy is void as to you and any other insured, if you or any other insured under this policy has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance, whether before or after a loss.

The Hatches argue that the instructions are erroneous because the language of the insurance policy neither actually nor impliedly provides an arson defense. They contend that the instructions on arson are erroneous as a matter of law because the district court failed to instruct on the crime of second degree arson and eliminated the issues of motive and intent contrary to the provisions of the policy. The Hatches also assert that the term “arson” is extremely prejudicial and should not have been used without a definition in instructing the jury. They also claim that the court erroneously implied in these instructions that the Hatches had the burden of proving the fire was accidental in order to overcome the arson defense of State Farm.

State Farm's response is that the Hatches are not entitled to raise objections on appeal to Instructions 7 and 28 since they did not object at the instruction conference. State Farm points out that Instruction 28 was a version of the Hatches' proffered Instruction No. 74. State Farm argues the Hatches did not object to the use of the term “arson” during the trial and even submitted some eleven instructions that incorporated the term “arson,” and they are prohibited from complaining about the term at this time.

Examination of the record discloses an objection to Instruction No. 8 at the conference by counsel for the Hatches stating, “it says here intentionally started [by Frank J. Hatch, III]. It doesn't say deliberately, I suppose intentionally if you dump a can of gasoline, it's intentional. If you intend to dump it, whether you intend to start the house or not I think its terribly, terribly prejudicial and clear error.” We understand this comment to be a statement that one may intentionally dump a can of gasoline without intending to start a fire. The Hatches did not present that theory at the trial, and the facts do not support such an interpretation. The Hatches' contention throughout the trial was that the dog tipped the gas can over, not that Frank J. Hatch, III intended to dump the gasoline but did not intend to start a fire. The objection was not pertinent in the context of the issues tried.

[12] While the policy does not specifically allude to an arson defense, it does state that coverage is provided only for “accidental direct physical loss to property.” (Emphasis added). Arson is not accidental, but instead, is an intentional act or conversely a nonaccidental direct physical loss to property. The policy also provides that it is voided when “you [the insured] or any person insured under this policy causes or procures a loss to property covered under this policy for the purpose of obtaining insurance benefits * * *.” In their complaint the Hatches sued State Farm for “the sum of at least $93,525.00 under the said policy coverage * * *.” In the language of the policy, the action was brought “for the purpose of obtaining insurance benefits.” Instruction No. 8 accurately states that State Farm was required to prove the fire was started intentionally by Frank J. Hatch, III in order to establish its defense of an intentional act. That instruction does not require that State Farm prove the crime or elements of the crime of arson. Neither does the policy require any element of motive other than the purpose of obtaining insurance benefits. We are satisfied that Instruction*393 No. 8 does not erroneously state the law in this case.

The Hatches raised no proper objection to Instructions 7 and 28, and in fact, an instruction similar to Instruction No. 28 was offered by the Hatches. As to these instructions, plain error must be established. Giving full scope to the arguments of the Hatches, they fail to demonstrate a record that clearly and unequivocally reflects the facts complained of, a transgression of a clear rule of law, or prejudice.

State Farm was not required in this civil trial to establish the elements of second degree arson. The court instructed that the Hatches could not recover if State Farm established by a preponderance of the evidence that the fire was intentionally started. The only obligation on State Farm was to establish that the fire was intentionally set and not that it constituted arson under the criminal code. The jury also was advised there could be no recovery if State Farm established that fact, and in the alternative, State Farm would be liable under the policy if the cause of the fire was accidental. Instruction 28, read in conjunction with Instructions 7 and 8, accurately and clearly instructed the jury with respect to the burden of State Farm to establish the “arson defense.” The “arson defense” was implicitly and mutually agreed upon by the parties as disclosed by the record and the proposed jury instructions. There is no reference to the “nonaccidental direct physical loss to property,” which the Hatches now claim should have been invoked. While the Hatches claim prejudice from the use of the term arson, they have not been successful in demonstrating actual prejudice. There was no error with respect to Instructions No. 7, 8, and 28.

[13] Hatches also assert error in the giving of Instruction No. 22 which reads:



INSTRUCTION NO. 22

During the course of this trial, you have learned that Frank J. Hatch, III, was charged with arson, and was acquitted after a criminal trial. You may not consider these facts in your deliberations and may make no inferences therefrom. A different burden of proof applies in criminal cases than in civil cases.

The Hatches assert this instruction unfairly and erroneously removed the truth from the jury's consideration of State Farm's bad faith in dealing with the county attorney, and eliminated Hatch's acquittal as a factor in the jury's mind. The objection lodged at trial was, “I think the fact that he was acquitted minimizes damages from that point on. Are we prohibited from mentioning that?”

[14] Evidence of an acquittal of criminal charges is not relevant in a subsequent civil trial relating to the same incident. Shatz v. American Surety Company of New York, 295 S.W.2d 809 (Ky.1955); State v. Desirey, 909 S.W.2d 20 (Tenn.Crim.App.1995). See Greenberg v. Aetna Insurance Company, 427 Pa. 494, 235 A.2d 582 (1967). This rule is applicable because the burden of proof is different in the criminal case, and a jury might conclude that innocence had been established by a preponderance of the evidence, even though the correct proposition is that guilt had not been established beyond a reasonable doubt. The rule is applicable to cases involving a civil action following an acquittal on a charge of arson. Bobereski v. Insurance Co. of Pennsylvania, 105 Pa.Super. 585, 161 A. 412 (1932); Wheat v. Continental Cas. Co., 652 S.W.2d 345 (Tenn.1983); Tennessee Odin Inc. Co. v. Dickey, 190 Tenn. 96, 228 S.W.2d 73 (1950). See Girard v. Vermont Mut. Fire Ins. Co., 103 Vt. 330, 154 A. 666 (1931) (record of conviction is not admissible).

The jury instruction regarding Hatch's acquittal in this case became essential because incorporated in the Hatches' theory of bad faith was a claim that State Farm improperly participated in Mr. Hatch's criminal prosecution. The task of the jury in the civil trial was to address the allegation of bad faith not the result of the criminal trial. Drawing inferences in favor of or against either party because of the result of the criminal case would not be appropriate. We perceive Instruction No. 22 as adeptly handling the delicate circumstance of the criminal trial which had been injected in the evidence without tilting the balance in favor of the Hatches or *394 State Farm. A further instruction upon the difference of the burden of proof in a civil trial, which the Hatches suggest would have been proper, would simply have added unnecessary language and confusion to this instruction. Jury Instruction 22 correctly stated the law in the circumstances of this case, and the Hatches have demonstrated no prejudice. There is no error to be found in the giving of this instruction.

[15] The last asserted error with respect to instructions attacks Instruction No. 30 which reads:



INSTRUCTION NO. 30

Plaintiffs may not recover damages for any injury they would have sustained as a result of the fire or the criminal prosecution even in the absence of State Farm's alleged bad faith claims handling.

According to the Hatches, this instruction was erroneous because when combined with Instruction No. 22, it instructed the jury to ignore all damages that the Hatches might have sustained even in the absence of State Farm's bad faith. The Hatches did not object to this instruction at trial, and the plain error doctrine again must be invoked. Perhaps Instruction No. 30 could have been drawn more artfully, but it is an accurate statement of the law. We held in Hatch I, 842 P.2d at 1096, that State Farm “demonstrated that appellants' [Hatches'] claim was ‘fairly debatable’ and that no liability resulted from the denial of this claim.” Hatch I also held, as a matter of law, that State Farm was not liable for Hatch's criminal prosecution. This last instruction simply required a causal connection between injuries and the conduct of State Farm, without regard to injuries that would have been sustained as a result of the fire or the criminal prosecution in the absence of bad faith on the part of State Farm in handling the claims.

[16] In Triton Coal Co. Inc., v. Mobil Coal Producing, Inc., 800 P.2d 505, 511 (Wyo.1990) we said:

“ * * * Parties have not only the right but the duty to offer instructions. In the absence of submission of a proper written instruction, any claimed error is deemed to have been waived.”

Counsel for the Hatches ultimately submitted 105 jury instructions, made unclear objections, and generally were antagonistic toward the entire process. While the jury was waiting for instructions, counsel for the Hatches participated in the process by submitting 80 instructions “covering every issue imaginable, and without any semblance of order.” This does not manifest the professional practice we expect from attorneys in Wyoming. Our examination of the record and the proposed jury instructions demonstrates that counsel for the Hatches went beyond the duty to serve as advocates. We detect a loss of objectivity and conduct that borders upon unprofessional in burdening the jury instruction process. It is difficult to give credence to the complaints of error now asserted.

We hold that in the absence of the submission of some proper written instruction, appellants have waived any claim of error. We further hold that upon proper analysis, the jury instructions, when taken as a whole, fairly and accurately state the law in this case. The district judge was patient but resolute in his effort to provide the jury with accurate instructions. The district court committed no error in instructing the jury with respect to arson as a defense, Mr. Hatch's acquittal on the criminal charge of arson, or the damages.

This brings us to the point of error in which the Hatches attack the granting of State Farm's motion for directed verdict on the issues of intentional infliction of emotional distress and its damages. The motion was improperly styled because since 1993, Wyo. R. Civ. P. 50(a)(1) has identified a directed verdict as a judgment as a matter of law. It provides that the court may determine an issue against a party when “there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue,” and can grant a motion for judgment as a matter of law on a claim that cannot be maintained without a favorable finding on that issue.

[17] [18] [19] [20] Upon review of the judgment as a matter of law, as we did in reviewing directed verdicts, we consider the evidence *395 favorable to the party against whom the motion was directed, affording it all favorable inferences. See Coulthard v. Cossairt, 803 P.2d 86, 91 (Wyo.1990). The granting of the motion is proper when only one conclusion could be reached by reasonable jurors without weighing the evidence or considering credibility. Coulthard, 803 P.2d at 91. We afford no deference to the decision of the trial court, and such motions should be cautiously and sparingly granted. Coulthard, 803 P.2d at 91.

The Hatches invoke our decision in Hatch I in which we reversed the grant of summary judgment by the district court with respect to the claim for intentional infliction of emotional distress. We said, “material factual disputes [exist] and that it was improper to grant a summary judgment * * *.” Hatch I, 842 P.2d at 1099. The conclusion drawn by the Hatches is that it is the law of this case that the jury should determine whether State Farm and its employees intentionally inflicted emotion distress on the Hatches. They also contend that when the evidence is viewed in the light most favorable to the Hatches, particularly the evidence relating to the conduct of the claims agents for State Farm, it is apparent that Kitchens and Murphy committed the tort of intentional infliction of emotional distress.

[21] [22] In Leithead v. American Colloid Co., 721 P.2d 1059, 1065-67 (Wyo.1986), we joined a majority of jurisdictions when we adopted Restatement (Second) Of TortsSSSS § 46 (1965) as defining the tort of intentional infliction of emotional distress in Wyoming. The comments to Section 46 advise that whether the conduct is so extreme and outrageous as to justify recovery is committed to the court in the first instance. Further, whether severe emotional distress can be found from the evidence is committed to the court.

[23] [24] These are the principles that we invoke in this case, and we first address the Hatches' argument that Hatch I required the submission to the jury of the claim of intentional infliction of emotional distress. The Hatches have disregarded three safeguards which prevent issues being submitted to a jury when the evidence is insufficient. The first of those is found in Comment “ h ” Restatement (Second) Of Torts § 46 (1965) where it is said, “[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.” The next safeguard is set forth in Comment “ j ” which provides for “the court to determine whether on the evidence severe emotional distress can be found * * *.” The third is set forth in Wyo. R. Civ. P. 50(a)(1) which states, “[i]f during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law * * *.” The purpose of the latter rule is to permit the trial court to take from the consideration of the jury, cases in which the facts are sufficiently clear to lead to a particular result under the law. Carey v. Jackson, 603 P.2d 868 (Wyo.1979).

In Hatch I, the record in the district court and this court consisted of the materials which had been produced in connection with the summary judgment and was limited to deposition testimony. We stated, “appellants demonstrated that there were material factual disputes and that it was improper to grant a summary judgment on appellants' cause of action for violation of a duty of good faith and fair dealing.” Hatch I, 842 P.2d at 1099. In the trial of these claims, the district court had the benefit of the complete testimony of the Hatch family, insurance experts, and the entire case in chief. We hold that the district court not only had the authority but the duty to make the threshold determination in this case pursuant to Comments “ h ” and “ j ” to Restatement (Second) Of Torts § 46 (1965) and Wyo. R. Civ. P. 50. The court was not required by our decision in Hatch I to send the claim of intentional infliction of emotional distress to the jury.

[25] We next address the propriety of the action of the district court in granting judgment as a matter of law. According to Wyo. R. Civ. P. 50(a)(1), we must determine that *396 there was “no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue * * *.” The first consideration is whether the conduct was extreme and outrageous. We look to Restatement (Second) of Torts § 46 cmt. d, p. 73 (1965), which states:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

The Hatches testified, with respect to the conduct of State Farm, that Kitchens had stated “you're not going to get what you think you're going to get.” They stated Kitchens required the Hatch family to fill out a detailed inventory of every item in their house on their claims forms because the value of their personal property exceeded the limits of their coverage. The Hatches asserted that this detail produced 272 pages and the 60 day time constraint required them to take sick leave, vacation, weekends, and evenings to complete it. They testified they worked in the cold and dark using flashlights to complete the claims form. Mrs. Hatch testified that people were at the house without permission and without notice on several occasions. The Hatches claim that State Farm conducted an excessive number of interviews of family members.

In addition, the Hatches point out that although the fire occurred in August of 1987, State Farm had not paid their claim by the end of October 1987. Mrs. Hatch testified State Farm implied they would cancel the insurance policy if she did not comply with the “cooperation clause” of the insurance contract. She also testified that the State Farm attorney who interviewed her under oath was “sarcastic,” “aggressive,” and “hostile.” The Hatches also asserted that they complied with State Farm's requests, but State Farm failed to give them copies of some reports they had requested, and in fact, State Farm provided copies of some reports and investigation materials to the county attorney for the arson prosecution of Mr. Hatch. They also stated that State Farm withheld a report from Northern Gas which contained exculpatory information.

Additional evidence of emotional distress was claimed with respect to an interview by an attorney of Mrs. Hatch, who said Murphy, present at the interview, intimidated her by staring at her the entire time. She asserted that Murphy “stared up and down her [daughter's] body” when Corinna's statement was taken, causing both her and her daughter to feel terribly uncomfortable. Mrs. Hatch testified in this way about her emotional distress:

It upset me quite a bit to think that a man that I didn't know had gone through my drawers, my personal things, my personal clothing, my daughter's personal things, her clothing. I know Mr. Reeves made light of feeling like a rape victim, but when somebody who has power forces intimacy you would never allow if you had the choice, I don't know how else to describe it. It was just devastating to me and it was devastating to my daughter to think that a strange man had sat in our rooms and gone through our things. And they had a woman agent in the basement who could just as easily have done it while Mr. Murphy did the downstairs. I think they would realize that any woman would feel that way about having someone she didn't know go through her underwear. It still makes me feel terrible.

She went on to state this was a “rough time,” “an ordeal,” they were “still under stress,” “snapping at each other,” and the fact that it had been “a really difficult seven years.”

Mr. Hatch testified he did not recall any of the family seeking counseling as a result of severe emotional distress. Corrina, the daughter of Mr. and Mrs. Hatch, testified her mother “was really upset and crying and disgusted again,” “crying again,” “[crying] quite frequently,” and was “under a lot of stress.” Corinna testified that she was “pretty repulsed [by Murphy going through her dresser drawers].” Robert, a son of Mr. and Mrs. Hatch, who was ten years old when *397 the fire occurred, testified that his mother was upset and “a lot of times she cried.” He heard Corinna and his mother talking about the fire and knew that “was upsetting them.” Michael, Robert's twin brother, testified members of the family were having some tough times after the fire. He stated, “my mom, she was emotional, she cried every once in a while. And my dad, he wouldn't express his feelings like my mom, he would usually isolate himself.” Michael also testified to the “family being stressed.”

In resolving the issue of entry of judgment as a matter of law, we turn to the principles articulated in Svalina v. Big Horn Nat. Life Ins. Co., 466 P.2d 1018, 1020 (Wyo.1970), that the evidence of the plaintiff will be taken as true with all reasonable inferences and intendments that can be drawn from it. If we accept the evidence offered by the Hatches as true with all reasonable inferences and intendments that can be drawn, there is insufficient evidence of the requisite misconduct by State Farm. Certainly State Farm's conduct may be characterized as insensitive or inappropriate at times, but the district court could reasonably find that conduct was not so outrageous in character or extreme in degree to reach the level of being beyond all possible bounds of decency. Neither was it atrocious and utterly intolerable in a civilized community. Proof of outrageous conduct essential for the separate tort of intentional infliction of severe emotional distress is inadequate in this record. These facts do not lead a reasonable member of the community to exclaim “outrageous!”

[26] We conclude that evidence of crying, being upset and uncomfortable is insufficient to demonstrate severe emotional distress that attains a level no reasonable person could be expected to endure. R estatement (Second) of TortsS § 46 cmt. j (1965). While the stress the Hatches experienced is not to be minimized, it is typical of the stress all people are expected to endure under the circumstances. The district court properly granted State Farm's motion for directed verdict or judgment as a matter of law relating to the charges of intentional infliction of extreme emotional distress.

The Hatches also assert error in the granting of State Farm's motion for a directed verdict with respect to punitive damages. Their argument is that if the evidence is viewed in a light most favorable to them, State Farm's conduct was willful and wanton and subject to punitive damages. They argue that the district court erred in finding that no reasonable jury could find willful and wanton misconduct in this instance. The Hatches assert that a number of other courts have considered similar issues as are presented in this case and have concluded that the issue of punitive damages should be resolved by a jury. We are satisfied that each one of those cases is distinguishable on its facts. In each instance, evidence was found to be sufficient either to support the claim of bad faith or sufficient to submit the bad faith question to the jury. Given our holding that the district court reasonably could find first, that the conduct by State Farm did not reach the requisite heights to be described as outrageous, extreme, atrocious, utterly intolerable, nor beyond all possible bounds of decency, and second, the Hatches did not suffer the requisite emotional distress for a successful claim of intentional infliction of severe emotional distress, the issue of damages including punitive damages becomes moot in this case.

Hatches also contend that they are entitled to attorneys fees pursuant to Wyo. Stat. § 26-15-124 (1991), if they prevail on the merits. They have failed to prevail on the merits, and consequently we will not consider the entitlement to attorneys fees further. We affirm the judgment of the district court denying such fees.

The Hatches rely upon cumulative error as a final contention. In the absence of any prejudicial error, a claim of cumulative error does not lie. Vit v. State, 909 P.2d 953 (Wyo.1996).

We find no error in this record. The Order on Directed Verdict Motion and the Judgment on Jury Verdict is affirmed.


O'BRIEN, District Judge, concurs specially, with whom LEHMAN, Justice, joins.
I agree with the majority and concur in the opinion of the court. I write specially only to *398 underscore that part of the majority opinion dealing with the behavior of counsel.

This case calls to mind the story of the senior attorney advising a new associate: “When you have compelling facts, pound on those facts. When the law is agreeable to your position, pound on the law. When you have neither favorable facts nor law, pound the table.” It is less amusing than unsettling.

The trial judge had considerable difficulty in keeping this case on track and the attorneys focused. The judge, who has a reputation for being patient and accommodating, revealed his frustration in an opinion letter where he observed:

It is true that the attitude and conduct of counsel throughout the pretrial proceedings and the trial made the job of the Court extremely difficult. And it is also true that the difficulties were chiefly the fault of the Plaintiffs' lead counsel. All attorneys participated to one degree or another in this unprofessional strife, and there was little attempt by anyone to calm the waters. But it was the Plaintiffs' lead counsel who constantly saturated every motion, every argument and every hearing with personal attacks on opposing counsel.

Accompanying this extreme personal animosity was a near religious fervor that manifested itself as a belief in the moral superiority of the Plaintiffs' cause, and the moral depravity of the Defendants and their attorneys. This blinded Plaintiffs' counsel to the realities of the case, and prevented a realistic appraisal of the evidence.

In spite of considerable rhetoric to the contrary, trials, particularly jury trials, are imperfect engines of justice. For routine cases the trial process works reasonably well; it yields rough justice within such practical and financial constraints as we are willing to abide. However, experience teaches that as cases approach the margins the trial machinery frequently sputters and oftentimes fails. Marginal cases include those with highly technical, complex or convoluted facts. A trial is not a didactic paradigm and, given the limits of time, resources and procedure, extremely intricate matters are sometimes beyond the ken of a judge or jury. Other cases are on the margin because they involve celebrity participants, severe consequences, extreme or peculiar circumstances, inordinate media attention or highly emotional issues. As to the latter the magnifying glass of close scrutiny and the attendant hype are simply inevitable consequences of a free society with open institutions. Without radical change in our approach to the trial process we have no choice but to accept imperfections, inconsistencies, and even occasional injustice. But an ominous problem emerges, one that is not the necessary product of confounding facts or unveiled process.

A trial should be a rational exercise, not an emotional experience. When counsel intentionally drive an otherwise routine case to the margins by infecting the trial with personal issues or by purposefully seeking to supercharge emotions, alert observers quickly recognize that the object is not justice, but victory. The ethical obligation to zealously serve client interests is tempered by the opposing, but no less imposing, obligation to act within the limits of the law-not merely the letter, but also the spirit, of the law. Any failure to appropriately and consistently measure duty to clients against duty to the profession perpetuates the “hired gun” image some lawyers cultivate and we all must live with. Worse, it sustains a popularly held conception that our professional ethic accepts the notions that success justifies, and occasionally necessitates, excessive zeal and that the cost of victory is irrelevant. Finally, such conduct reinforces the stereotype of the avaricious plaintiff spurred to trial by even more venal attorneys. When a case is measured, not by the merit of the cause, the quality of the evidence, or the logic of the arguments, but by the level of invective, something is amiss. A trial then becomes an ordeal which is neither dignified nor appropriate and, predictably, the result reflects the performance; the process is demeaned, as are the participants.

Wyo.,1997.
Hatch v. State Farm Fire and Cas. Co.
930 P.2d 382

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Bianchi v. Mikhail,
266 Ill.App.3d 767, 640 N.E.2d 1370, 204 Ill.Dec. 21, Ill.App. 1 Dist., October 03, 1994 (NO. 1-90-0314)

At trial, defendants presented the testimony of Dr. Darwish, his expert Dr. Vincent J. O'Connor, Dr. Mikhail's expert Dr. Robert C. Muehricke, and the deposition testimony of Dr. Mikhail, who had died prior to trial. Dr. O'Connor testified that a normal creatinine level at Northwestern Memorial Hospital is 1.7. He stated he would not be concerned, however, by readings of 1.9 or 2.1. He further testified that, although 2.4 is “getting into a gray area,” he would not be alarmed absent other signs of RPGN. Dr. Muehricke also described levels of 1.9 and 2.1 as normal in an aging kidney and that a level of 2.4 is only “slightly elevated.” Both Dr. Darwish and Dr. Mikhail attributed the higher creatinine levels to Bianchi's age and the hardening of his arteries due to hypertension. In effect, all these *771 doctors reasoned that a person's kidney function decreases as a person gets older and thus his creatinine level will rise as a natural consequence of age. Consequently, normal creatinine levels in older people naturally will be higher than in younger people.

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Anderson v. Mazza,
207 A.D.2d 570, 615 N.Y.S.2d 489, N.Y.A.D. 3 Dept., August 04, 1994 (NO. 69529)

Plaintiffs were not precluded, by agreement not to obtain transcript of first deposition of defendants' expert until after plaintiffs' expert could be deposed, from obtaining transcript of first deposition after first expert retained by plaintiffs died before he could be deposed and second expert retained by plaintiffs was deposed; agreement did not require deposition from any particular expert before plaintiffs could obtain transcript.


============

Before MIKOLL, J.P., and MERCURE, WHITE, CASEY and YESAWICH, JJ.


**490 *570 YESAWICH, Justice.
Appeal from an order of the County Court of Delaware County (Estes, J.), entered April 1, 1993, which, inter alia, granted defendants' motion for a protective order, 158 Misc.2d 928, 601 N.Y.S.2d 996.

[1] This action, arising out of a dispute over claims to certain real property in the Town of Hancock, Delaware County, was commenced in October 1986. After issue was joined, the parties scheduled depositions of their respective surveyors to take place on March 4, 1988. Because plaintiffs' surveyor was ill on that date and unable to be deposed, the parties' attorneys agreed that they would continue as planned with the examination of defendants' surveyor, George Fulton, but that his testimony would not be transcribed until after plaintiffs' surveyor had also been deposed. This agreement was placed on the record. Plaintiffs' surveyor having died before he was able to be questioned, plaintiffs obtained a new surveyor, Norman Van Valkenburgh. Plaintiffs have also procured new counsel.

After some discussion, defendants' attorney agreed that both Van Valkenburgh and Fulton would be deposed on December 6, 1991 provided that Van Valkenburgh was examined first. This in fact occurred, and after Fulton's new testimony was transcribed, corrected and returned, plaintiffs' counsel obtained a transcript of Fulton's March 1988 deposition, which was forwarded to defendants' counsel to be signed and returned. Defendants refused to return the transcript and objected to plaintiffs' use thereof, claiming that it was obtained in violation of the parties' March 1988 agreement and also in contravention of an agreement, entered into by counsel before the later depositions, that Fulton's 1991 deposition *571 testimony was to be obtained in lieu of his earlier testimony, which was not to be transcribed or used. Plaintiffs disagreed with these assertions, prompting defendants to bring the present motion for a protective order pursuant to CPLR 3103. Except for the imposition of a monetary sanction, County Court granted the relief requested. Plaintiffs appeal.

Examination of the 1988 deposition transcript shows that the agreement not to transcribe Fulton's testimony was only to be in force until plaintiffs' surveyor had been deposed. Defendants' attorney acknowledged that “[a]s soon as he [plaintiffs' surveyor] testifies, my right to prevent the testimony from being transcribed is gone”. Although the demise of plaintiffs' surveyor was not contemplated, it is clear from the context of the agreement that it was not made with any particular reference to that expert, but rather with the intent of ensuring that plaintiffs' expert not be given the advantage of an opportunity to review Fulton's testimony prior to his or her own deposition. It is also apparent that, had Fulton not been deposed again, defendants would have had no grounds for objecting to the use of his original testimony once plaintiffs' new surveyor had been examined. In short, this agreement was not breached.

[2] As for defendants' claim that plaintiffs' attorney purportedly agreed prior to Fulton's second deposition that Fulton's first examination would not be transcribed, the fact remains that absent a signed writing, court order or a stipulation made in open court, such an agreement is not considered binding ( see, CPLR 2104). Defendants' counsel urges that his consent to Fulton's second deposition would not have been forthcoming absent an agreement not to use the prior testimony, and that this is sufficient evidence of reliance to warrant disregard of the formalities required by CPLR 2104 ( see, Leemilt's Petroleum v. Public Stor., 193 A.D.2d 650, 597 N.Y.S.2d 463). This might be so if the parties did not dispute the very existence of an agreement ( see, Smith v. Lefrak Org., 142 A.D.2d 725, 531 N.Y.S.2d 305; La Marque v. North Shore Univ. Hosp., 120 A.D.2d 572, 573, 502 N.Y.S.2d 219); here, however, there is no evidence to substantiate defendants' claim that plaintiffs' attorney agreed not to use the first transcript.

There being no binding agreement between the parties or their attorneys prohibiting transcription and use of Fulton's 1988 deposition testimony, and defendants having made no compelling showing of “unreasonable annoyance, expense, embarrassment, **491 disadvantage, or other prejudice”, issuance of the protective order was improper (CPLR 3103[a]; see, Brignola v. Pei-Fei Lee, M.D., P.C., 192 A.D.2d 1008, 1009, 597 N.Y.S.2d 250).

ORDERED that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted defendants' motion for a protective order; said motion denied; and, as so modified, affirmed.


*572 MIKOLL, J.P., and MERCURE, WHITE and CASEY, JJ., concur.

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Philbin v. Trans Union Corp., 101 F.3d 957, 961 n .1 (3d Cir.1996) (finding that a hearsay statement by an unknown individual is not capable of being admissible at trial);

Wilson v. Parisi
Slip Copy, 2008 WL 544620
M.D.Pa.,2008.
February 26, 2008

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Argument supported by hearsay, not admissible at trial, cannot be considered on a motion for summary judgment.FN9

FN9. Philbin v. Trans Union Corp., 101 F.3d 957, 961 (3d Cir.1996).

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At the summary judgment stage, the party opposing summary judgment must produce evidence which could be “reduced to admissible evidence” at trial. Celotex Corp. v. Cartrett, 477 U.S. 317, 327 (1986). As a general rule, hearsay evidence should not be considered unless the party offering the evidence can establish either that it can be reduced to a form that is admissible at trial, Williams v. West Chester, 891 F.2d 458, 466 n. 12 (3d Cir.1989), or that it is not inadmissible hearsay under the Federal Rules of Evidence, Blackburn v. United Parcel Serv., Inc., 179 F .3d 81, 96 (3d Cir.1999). The “mere possibility that a hearsay statement will be admissible at trial, does not permit its consideration at the summary judgment stage.” Bouriez v. Carnegie Mellon Univ., 02-cv-2104, 2005 WL 2106582, *9 (W.D. Pa Aug. 26, 2005); Proctor v. ARMDS, 04-cv-899, 2006 WL 3392932, *4 (D.N.J. Nov. 21, 2006).


“[H]earsay produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e. ‘in a form that would be admissible at trial.’ “ Williams, 891 F.2d at 466 n. 12. However, a “hearsay statement by [an] unknown individual is not ‘capable of being admissible at trial,’ and [can] not be considered on a motion for summary judgment.” Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996); see also Manning v. Temple Univ., 157 Fed. Appx. 509, 514 (3d Cir.2005)(holding that plaintiff's testimony regarding something that a Caucasian student known only as “Tracy” told her was “hearsay and therefore may not be considered at summary judgment”).

ABD Monroe, Inc. v. Monroe Tp.
Slip Copy, 2008 WL 58876
D.N.J.,2008.
January 03, 2008
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However, this hearsay statement cannot be admitted for the purpose of establishing the truth of the Commissioners' alleged hostility. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (inadmissible hearsay cannot be considered at summary judgment).

Tranter v. Crescent Tp., Slip Copy, 2007 WL 3274158, 183 L.R.R.M. (BNA) 2119, W.D.Pa., November 05, 2007 (NO. 2:06-CV-355)

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An affidavit “shall set forth such facts as would be admissible in evidence.” Fed. R. Civ. P. 56(e). Hearsay statements that would be inadmissible in court, therefore, cannot be considered in deciding a motion for summary judgment unless the out-of-court declarant could later present that evidence through direct testimony. E.g., Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 466 n. 12 (3d Cir.1989). Defendants argue that the statement of the unidentified dispatcher to Defendant Cerski that Arthur Breese's car was not the one reported as stolen, which is included in paragraph twelve (12) of Mr. Brese's affidavit (Exhibit A) is inadmissible hearsay. Plaintiff responds that the statement is not hearsay because it is not offered to prove the truth of the matter asserted, but rather to demonstrate that the statement was made, in an affidavit to which Defendant Ashley Borough had access at the time it chose to promote Defendant Cerski to police chief. The statement is relevant for this purpose because it tends to show that Cerski was promoted despite allegations that he had engaged in unconstitutional behavior by stopping a car without probable cause or reasonable suspicion. Therefore, as evidence that the city of Ashley was made aware of the allegations of Defendant Cerski's unconstitutional conduct prior to promoting him, the statement in Arthur Breese's affidavit will not be stricken from the record for purposes of deciding the motion for summary judgment.

Coleman v. Cerski
Slip Copy, 2007 WL 2908266
M.D.Pa.,2007.
October 04, 2007
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Cruz v. MRC Receivables, Corp., ___ F. Supp. 2d. ___, 2008 WL 2627143,
**2-4 (N.D. Cal. July 3, 2008) (sustaining hearsay objections to
credit reports and consumer's declaration, and ordering portions of
declaration stricken); see also Philbin v. Trans Union Corp., 101 F.3d
957, 961 nn. 1-2 (3d Cir. 1996) (excluding hearsay statements from
credit grantors concerning alleged reasons for credit denials); Baker
v. Capital One Bank, 2006 WL 173669, *5 (D. Ariz. Jan. 24, 2006)
(excluding credit reports).
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Cruz v. MRC Receivables, Corp., ___ F. Supp. 2d. ___, 2008 WL 2627143,
**2-4 (N.D. Cal. July 3, 2008) (sustaining hearsay objections to
credit reports and consumer's declaration, and ordering portions of
declaration stricken); see also Philbin v. Trans Union Corp., 101 F.3d
957, 961 nn. 1-2 (3d Cir. 1996) (excluding hearsay statements from
credit grantors concerning alleged reasons for credit denials); Baker
v. Capital One Bank, 2006 WL 173669, *5 (D. Ariz. Jan. 24, 2006)
(excluding credit reports).

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Thomas v. U.S. Bank, N.A.
Slip Copy, 2009 WL 1385966
C.A.9 (Or.),2009.
May 19, 2009

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. CV-05-01725-MO.

Before W. FLETCHER and IKUTA, Circuit Judges, and SEABRIGHT,FN* District Judge.


FN* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


MEMORANDUMFN**


FN** The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation.
*1 Plaintiff George Thomas (“Thomas”) brought this suit against Defendant U.S. Bank for its attempts to collect an uncollectible debt from Thomas and for two pulls of Thomas's credit report, claiming U.S. Bank's conduct violated Oregon statutes and the federal Fair Credit Reporting Act (“FCRA”). Thomas appeals various rulings by the district court.


We affirm the district court's grant of summary judgment on Thomas's claims under the Oregon Unlawful Debt Collection Practices Act (“UDCPA”). Thomas's claim under Or.Rev.Stat. § 646.639(2)(m) fails because he presented no evidence that U.S. Bank represented that Thomas's debt would be increased by fees or other charges. Thomas's claim under Or.Rev.Stat. § 646.639(2)(n) fails because he presented no evidence that the difference between his actual debt amount and the amount U.S. Bank attempted to collect was attributable to added interest or fees. Thomas's claim under Or.Rev.Stat. § 646.639(2)(k) fails because a litigation is not a “right or remedy” that was unavailable to U.S. Bank when it threatened to sue. Porter v. Hill, 838 P.2d 45, 49 (Or.1992); Pro Car Care, Inc. v. Johnson, 118 P.3d 815, 818 (Or.Ct.App.2005).


We also affirm the district court's grant of judgment as a matter of law to U.S. Bank on Thomas's “permissible purposes” FCRA claim under 15 U.S.C. § 1681b(f). Thomas presented no evidence that U.S. Bank or Capital Management Services, Inc., had requested his credit report for any reason other than to attempt to collect on the debt, and requesting a credit report with the intent to collect on a debt is among the “permissible purposes” listed in the FCRA. 15 U.S.C. § 1681b(a)(3)(A).


Finally, the district court did not abuse its discretion in excluding the video testimony of Thomas's deceased expert witness. Nor did it abuse its discretion in awarding attorney's fees to U.S. Bank.

AFFIRMED.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association


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