of a medical article, "The Elusive Adenomyosis of the Uterus -- Revisited" by Drs. Bird, McElin, and Monalo-Estrella, published in the March 1, 1972 issue of the American Journal of Obstetrics and Gynecology.
A trial judge has broad discretion in the admission or exclusion of expert evidence. Salem v. United States Lines Co., 370 U.S. 31, 82 S. Ct. 1119, 8 L. Ed. 2d 313, rehearing denied 370 U.S. 965, 82 S. Ct. 1578, 8 L. Ed. 2d 834 (1962); Idzojtic v. Pennsylvania R. Co., 456 F.2d 1228 (3d Cir. 1972). And the opposing party may cross-examine an expert on matters of credibility, interest, or bias. Rao v. Hillman Barge & Construction Co., 326 F. Supp. 1091 (W.D. Pa. 1971), aff'd 467 F.2d 1276 (3d Cir. 1972).
Although many questions which seemed to be based on the article were propounded to plaintiffs' expert, all that he answered were of a preliminary nature -- that is, how research is carried on and reported, whether basic research methods have recently changed, and what procedures are used to examine tissue specimens. When it came to the point where he was asked to read a passage with which he did not agree, the objection of plaintiffs' counsel was sustained (N.T. 2-167-69). Thus, nothing from the article was revealed to the jury -- except those items that the expert considered to be valid and correct.
There was no prejudice to the plaintiffs from this cross-examination of their expert.
IV. Use of the Pretrial Order to Impeach Defendant's Expert Witness
On cross-examination, defendant's expert witness, Dr. Kaign Smith, stated that he initially became acquainted with Mrs. Bowers' medical history in September of 1973 (N.T. 4-42, 4-43). Plaintiff thereupon sought to introduce into evidence the pretrial order for this case, (N.T. 4-68, 4-71), which was filed with the court on March 13, 1973, and which listed Dr. Smith as a witness for the defense. Plaintiffs contend that the date-discrepancy between the pretrial order and Dr. Smith's testimony suggested at least two unfavorable inferences: either the witness was not telling the truth regarding his first contact with the case, or defense counsel was confident that Dr. Smith would testify on behalf of the defendant regardless of the facts since they were unknown to Dr. Smith in March, 1973, when the pretrial order was filed.
Although I twice offered to permit plaintiffs' attorney to examine Dr. Smith on this point outside the presence of the jury, (N.T. 4-69, 4-70), at least until it could be determined whether the witness could shed any light on the discrepancy, plaintiffs' counsel rejected both offers (N.T. 4-71). At that juncture, upon defendant's objection, and exercising the broad discretion entrusted to a trial judge regarding the admission of potentially misleading and confusing evidence, Smith v. Spina, 477 F.2d 1140 (3d Cir. 1973); United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), I refused to admit the pretrial order.
Rule 43(a) of the Federal Rules of Civil Procedure embodies a broad policy favoring the admissibility of evidence. Had plaintiffs' counsel chosen to avail himself of my permission to interrogate Dr. Smith outside the presence of the jury initially -- and had he at that time been able to establish relevancy -- admissibility of the pretrial order arguably could have been premised on 28 U.S.C. § 1733(a).
Several intertwining considerations prompted me to curtail plaintiffs' questioning of Dr. Smith on the issue of the pretrial order. First, I entertained serious doubt about the relevancy of the proposed interrogation. Relevant evidence must in some degree advance the inquiry and thus have probative value, Stauffer v. McCrory Stores Corp., 155 F. Supp. 710 (W.D. Pa. 1957). Although a witness may be questioned as to any fact within his knowledge, it must be relevant to the issues joined in the proceeding which is the subject of the litigation at bar. Moran v. Pittsburgh-Des Moines Steel Co., 6 F.R.D. 594 (W.D. Pa. 1947). Nevertheless, even quite relevant evidence may be excluded where it will serve largely to prejudice, confuse, or mislead the jury. See Shepard v. United States, 290 U.S. 96, 104, 54 S. Ct. 22, 25-26, 78 L. Ed. 196 (1933); Smith v. Spina, 477 F.2d 1140, 1146 (3d Cir. 1973).
In the case of Dr. Smith, I doubted whether he could explain the appearance of his name on the pretrial order,
or, indeed, whether he could even be expected to know what a pretrial order is. Moreover, since the defendant had changed counsel during the interim between the pretrial order and the trial,
and the attorney responsible for listing Dr. Smith's name on the pretrial order was not in court, I was further persuaded that Dr. Smith's credibility might be damaged in the eyes of the jury on a matter about which he legitimately had no knowledge and which was completely irrelevant to his testimony. Plaintiff's counsel's refusal to question the witness outside the presence of the jury to establish relevance left me no alternative to sustaining defendant's objection. No harm would have come to the plaintiffs had their counsel availed himself of my offer; great prejudice might have resulted to the defendant had I permitted the introduction of the pretrial order in the absence of an adequate foundation for it.
For the foregoing reasons, I believe the verdict rendered by the jury and the judgment entered thereon should be affirmed.
BY THE COURT: