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TENENBAUM v. CAPLAN. MALLIN APPEAL (09/19/73)

decided: September 19, 1973.

TENENBAUM
v.
CAPLAN. MALLIN APPEAL



Appeal by witness from contempt order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 1511, in case of Howard Tenenbaum, a minor, by his parent and natural guardian, Gilbert Tenenbaum and Gilbert Tenenbaum in his own right v. Arthur Caplan and Dorothy Caplan.

COUNSEL

I. Raymond Kremer, with him Neil H. Stein, and Kremer, Krimsky & Luterman, P. C., for appellant.

John T. Quinn and Herbert Somerson, for appellees.

Hermann Rosenberger, II, Assistant Attorney General, with him Dante Mattioni, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.

Author: Manderino

[ 454 Pa. Page 2]

The appellant, Dr. Aaron W. Mallin, who appeared as a witness in a personal injury action, was summarily punished for a direct criminal contempt of court. He was ordered to pay a $100 fine or undergo a five-day confinement in the county prison. The appellant's petition for reconsideration was denied by the trial court and this appeal followed.

The appellant was called as an expert medical witness on behalf of the plaintiff who alleged injuries to his nervous system that resulted in epileptic seizures. On direct examination, the appellant was asked about the occupational limitations of an epileptic. The following colloquy occurred: "Q. Doctor, would there be any limitation on an epileptic so far as would there be certain occupations which would not be permitted or

[ 454 Pa. Page 3]

    practical? A. Yes. We would certainly recommend that an individual with epileptic seizures not work at heights where he can fall, have other injuries. He could fall during a spell and perhaps kill himself or have other injuries. He should not work with machinery because he might fall into machinery and kill himself or damage the machinery and perhaps cause damage to other people who are working nearby. These are the main things that are forbidden occupationally, but in many activities they should be very cautious about going swimming alone. They should avoid contact sports where they might have other head injuries, minor or major. I think there's still a law in the Commonwealth of Pennsylvania dating back to 1915 that states that people with seizures are not allowed to get married, but I don't know whether that law has been eliminated, but there was a law in 1915. [Defense Counsel]: I object to that and move to strike it out. The Court: Doctor, your qualifications as a physician have not been disputed in any substance; your qualifications as a lawyer have. The Witness: I'm not acting as a lawyer. I'm just stating what I think. The Court: Confine yourself to medicine, if you please. Q. How about the driving of an automobile? Is that permitted medically for an epileptic? A. I wouldn't permit it. I think any neurologist would forbid an epileptic to drive, and I'm not allowed to talk about the law, but I think there's some law about it. I would not permit an epileptic to drive a car unless he is free of seizures, in my opinion, for at least one year, and I think this law that I can't talk about says two years, but -- Q. Doctor -- The Court: You're very adroit about that, doctor. Confine yourself to the medicine, please, and not what you're not allowed to talk about. The Witness: Yes, sir. I'm sorry."

After recessing for the day, the trial court requested that everyone except the appellant and counsel leave

[ 454 Pa. Page 4]

    the courtroom. He then thoroughly chided the appellant for his conduct as a witness, found the appellant guilty of contempt and levied the fine of $100 payable within twenty-four ...


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