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DOWNEY v. WESTON (03/16/73)

decided: March 16, 1973.


Appeal from judgment of Court of Common Pleas of Montgomery County, No. 67-3917, in case of Edward F. Downey v. Elva Weston and Samuel M. Edelson.


Thomas J. Burke, with him Haws & Burke, for appellant.

Norman Paul Harvey and Francis Recchuiti, with them James N. Peck and John F. Naulty, for appellees.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Pomeroy

[ 451 Pa. Page 261]

On March 30, 1965, the plaintiff-appellant, Edward F. Downey, was involved in an automobile accident with cars driven by defendants Elva Weston and Samuel M. Edelson. In July of 1967 appellant brought this action in trespass against defendants in Montgomery County. The matter was tried to a jury over a period of eight days and a verdict was returned for plaintiff in the amount of $15,455. Unsatisfied with that figure, plaintiff filed a motion for new trial which was denied by the court below. From the judgment entered following that denial the plaintiff brings this appeal.*fn1

Following the accident in March, 1965, appellant Downey returned to his work as a milkman. Some months later Downey began to experience pain in his neck and shoulders, pain which soon radiated to his legs. Within a year after the accident, appellant began to lose strength in his arms and legs and experienced difficulty in performing his daily task of milk delivery. On November 4, 1967 Downey suffered a fall at work that precipitated his early retirement from employment. Subsequently appellant's condition was diagnosed as amyotrophic lateral sclerosis (sometimes herein "ALS"), a relatively rare neurological disorder characterized by progressive deterioration and death of nerve cells located in the spinal column. As the nerve cells die, muscular stimulation is impeded and ultimately

[ 451 Pa. Page 262]

    blocked altogether; atrophy and paralysis ensue. At the time of trial, appellant was almost totally paralyzed and had a life expectancy of four years.

The chief issue at trial was that of causation, i.e., whether Downey's amyotrophic lateral sclerosis was caused by the trauma he received in the automobile collision with defendants. Plaintiff produced medical experts who testified to their belief that trauma can and in this case did cause the disease. Defendants on the other hand produced experts whose opinion it was that trauma is not a causative factor in the onset of the disease. It is appellant's theory on this appeal (shared by appellees) that "[i]n returning its verdict of $15,000, the jury obviously was compensating Mr. Downey only for injuries other than his condition of mixed amyotrophic lateral sclerosis. The jury did not accept the contention . . . that plaintiff's condition . . . was caused by the trauma involved in the accident of March 30, 1965."*fn2

Appellant, although the verdict winner, has appealed, alleging as grounds for reversal and for grant of a new trial a number of errors which he claims prejudicially affected the jury's consideration of either the question of causation or the question of damages. We discuss these contentions seriatim and, finding none which requires a new trial, we will affirm the judgment entered below.


Appellant first alleges that the trial court committed reversible error in restricting cross-examination of a Dr. Brady, one of the defendants' expert witnesses. It appeared that a Dr. Bonner, who was the physician whom Downey first consulted following the auto accident and who also testified on his behalf at trial, had

[ 451 Pa. Page 263]

    referred plaintiff to Dr. Brady, a specialist in neurological medicine. When called to the witness stand by defendant Edelson, Dr. Brady stated that it was his opinion that Downey suffered from amytrophic lateral sclerosis and that the disease was not caused by the trauma received by Downey in the automobile accident.

On cross-examination plaintiff's counsel drew out the existence of a close social and professional relationship between Dr. Brady and the lawyer for the co-defendant Weston. The doctor admitted that he had spoken in the living room of his home with that attorney on the eve of the trial and had allowed him to examine a medical file compiled during Downey's earlier consultation in Dr. Brady's office. With that much established, plaintiff's counsel then undertook to show by further cross-examination of Dr. Brady that such pretrial disclosure of plaintiff's medical records without Downey's permission and out of his presence violated the Hippocratic Oath and the Principles of Medical Ethics of the American Medical Association.*fn3 After objection by defense counsel, however, the court barred this line of cross-examination.

The purpose of all impeachment, of course, is to affect the credibility of the witness. It is beyond question that the interest in or bias of a witness towards either side of a lawsuit may be exposed upon cross-examination, Price v. Yellow Cab Co., 443 Pa. 56, 278 A.2d 161 (1971), and that in some instances the blocking of such a line of attack may constitute reversible ...

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