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HUSSEY v. MAY DEPARTMENT STORES (02/02/76)

decided: February 2, 1976.

HUSSEY
v.
MAY DEPARTMENT STORES, INC., APPELLANT



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1973, No. 2679, in case of Katherine M. Hussey v. May Department Stores, Inc., t/a Kaufmann's Department Store.

COUNSEL

Theodore E. Breault, with him Egler and Reinstadtler, for appellant.

Robert H. Somerton, with him Zupancic and Somerton, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 238 Pa. Super. Page 434]

Mrs. Katherine Hussey, appellee, filed a complaint in trespass on March 13, 1973 alleging that she had suffered hair and scalp damage because of a permanent wave administered to her in a beauty salon operated by appellant, Kaufmann's Department Store in suburban Pittsburgh. After a jury trial, appellee received a verdict of $27,000.00.

On appeal from the denial of its motion for a new trial, appellant argues: that the testimony of appellee's expert concerning the cause of her injuries was not competent; that the trial judge erred in permitting two photographs of appellee to be introduced into evidence; and that the jury's verdict was excessive.

I

Appellee's expert witness was Francis J. Krugh, M.D., a dermatologist. Dr. Krugh initially examined appellee on December 24, 1971, less than two months after the allegedly injurious permanent wave. At the time of the initial examination, appellee told Doctor Krugh that she had experienced a severe burning sensation on her scalp shortly after Mrs. Jean McVerry, a beautician employed by appellant, had poured permanent waving solution on the scalp (N.T. 97). Dr. Krugh's examination revealed that the top of appellee's head was dull red and unduly hot, her scalp was sensitive to the touch, and her hair

[ 238 Pa. Super. Page 435]

    was damaged (id.). Subsequent examinations showed increased hair damage, tightness of the scalp, and continued sensitivity to heat and cold (N.T. 99). Based upon his examinations of appellee and the medical history he received from her, Dr. Krugh diagnosed appellee's condition as chemical contact dermatitis caused by the permanent wave administered to her (N.T. 101).

Appellant's expert witness was Saul R. Bergad, M.D., a dermatologist who had first examined appellee on September 17, 1974. The reason Dr. Bergad's examination of appellee occurred nearly three years after the allegedly injurious permanent wave was that the doctor originally engaged by appellant died before trial. Dr. Bergad found no evidence of chemically induced damage to appellee's hair or scalp (N.T. 172). On the contrary, his examination of appellee's scalp disclosed no scarring or redness that would have been produced by a chemical agent (N.T. 170). His diagnosis, which agreed with the written findings of the deceased doctor, was that appellee suffered from senile-type alopecia, i.e., normal hair loss attendant upon old age. Appellee was seventy one years old at the time of trial.

It was for the jury, of course, to credit or reject the expert testimony. Rose v. Hoover, 231 Pa. Superior Ct. 251, 259, 331 A.2d 878, 882 (1974). Appellant's contention, however, is that Dr. Krugh's testimony should have been stricken as incompetent.

A

The admission of expert opinion evidence is a matter within the sound discretion of the trial court, and appellate review is correspondingly limited. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969). Expert testimony, however, is incompetent and may not be admitted into evidence if the expert's opinion is based upon mere conjecture. Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968); Simmons v. Mullen, 231 Pa. Superior Ct. 199, 211, 331 A.2d 892, 899 (1974).

[ 238 Pa. Super. Page 436]

An opinion may be found conjectural because of the manner in which it is expressed. As stated in Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 501, 103 A.2d 681, 684 (1954):

"Moreover the expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required ...


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