in order that it could rebut any testimony that Dr. Weill might offer. However, the defendant failed to offer any additional testimony to rebut the testimony of Dr. Weill. The Court afforded the defendant a reasonable opportunity to have an additional examination made even though it was of the opinion that there was no surprise on the issue of brain damage. The Court, in fact, recessed early one morning in order to permit the defendant to contact additional Doctors. The defendant advised the Court through its counsel just prior to the conclusion of the trial that it would not make arrangements for any further medical examinations because examinations that could be given would not be of any value. Therefore, they rested. This Court cannot see how the defendant was surprised or prejudiced by the opinion testimony of Dr. Weill when it was given a reasonable opportunity to rebut it but failed to take advantage of such opportunity.
The defendant also seeks a new trial for the reason of the Court's refusal to strike the opinion testimony of Dr. David Weill, which testimony contained a prognosis of possible future consequences which the plaintiff might suffer. It is uncontested that Dr. Weill is a physician licensed to practice medicine in the State of Pennsylvania. However, the defendant urges that the Doctor did not have the necessary information to make a valid diagnosis and prediction in reference to the plaintiff. It urges that his testimony was predicated on an inadequate factual basis. The Doctor testified that based on the history, the observation, and the laboratory findings it was his opinion that the plaintiff has an organic brain lesion as a result of an injury and that the lesion is probably one of scarring or scarring with cyst formation. The Doctor went on to testify that the probability of a man having an injury of such a nature besets him with a lot of difficulties, namely that his vision would not return, and the presence of the scar lays him open to damage and danger in the future as his scar undergoes changes; that his blindness will continue; and that the symptoms of dizziness and headaches that he has will continue; and that he faces a probability of surgical interference. The Doctor pointed out that a professional judgment is reached on the basis of history, physical findings from examination, and laboratory tests, and such professional judgments are what a physician would act upon in the practice of his profession.
The defendant urges that a question calling for the witness' opinion on the basis of laboratory reports and the history he received, this physician not being the treating physician, is not competent evidence. While it is true that some courts have restricted the opinions of physicians under such conditions, Professor McCormick in his recent work points out that such restrictions on the testimony of an expert called to testify seems unjustified. They assume that the greater number of plaintiffs will give an untrue history to the doctor called to testify and the majority of such doctors will rely on such untrue statements. They assume further that the existence of an interest to falsify is a sufficient reason for exclusion of testimony, which is the philosophy, now discredited, of the common law disqualification of witnesses for interest. Professor McCormick urges:
'* * * that an expert in a science is presumably competent to judge of the reliability of statements made to him by other investigators or technicians. * * * If the statements, then, are attested by the expert as the basis for a judgment upon which he would act in the practice of his profession, it seems that they should ordinarily be a sufficient basis even standing alone for his direct expression of professional opinion on the stand, and this argument is reinforced when the opinion is founded not only upon such reports but also in part upon the expert's firsthand observation.' McCormick on Evidence, p. 33 (1954).
The defendant urges that the witness was not competent to testify because he was not a neurologist. However, Dr. Weill is a licensed physician and has had considerable experience in the diagnosing of cases. The defendant has been unable to show any case in any court where a competent physician has been barred from testifying because he was not a specialist. His lack of specialization could be argued to the jury as affecting the weight of his testimony, but his training as a physician and his experience in diagnostic work renders him competent to give an opinion.
This Court feels that a fair trial was held and in its judgment the testimony most helpful to the plaintiff's case and perhaps most damaging to the defendant's case was given by the defendant's witness, Dr. Murray McCaslin, who was acknowledged by all parties as one of the leading ophthalmologists in the State of Pennsylvania. His testimony definitely established that there was brain damage. It definitely established that there was a loss of vision. He explained to the jury the problems that the plaintiff suffered and the experiences he received by the loss of vision. He explained what happened to the brain when it was injured. He explained that the headaches that the plaintiff complained of were not uncommon, that they were post-traumatic headaches, and that the headaches could be very severe, their frequency or infrequency depending on the individual. He also pointed out that with the type of defect the plaintiff had he would have to move his head in order to see the directions in which he had the blind spots, that mere movement of the eye itself would not compensate for the loss of vision. In fact, he stated that the plaintiff should not return to his former job as a brakeman and that he could not do that type of work.
While this Court has no way of knowing just what testimony of what witnesses the jury believed and placed the greatest reliance on, it is of the opinion that the jury probably placed great reliance on the testimony of Dr. McCaslin, the defendant's own doctor, whose frank and fair testimony made it clear to the jury the extent of the injury and suffering that the plaintiff has and will undergo.
The defendant in the Court's opinion was not prejudiced by any testimony given by Dr. Weill. The plaintiff suffered real injuries, and the jury awarded him substantial sums of money as a result of these injuries. Therefore, the defendant's motion for a new trial should be denied.
© 1992-2004 VersusLaw Inc.