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LILLIE MILLER v. E. C. KRUG (04/28/78)

decided: April 28, 1978.

LILLIE MILLER, APPELLANT,
v.
E. C. KRUG, III, M.D., AND COLUMBIA HOSPITAL OF PITTSBURGH, A CORPORATION V. ASTRA PHARMACEUTICAL PRODUCTS, INC.



No. 311 April Term 1977, Appeal from the Orders Entered October 14, 1976 and November 22, 1974 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. 2574 July Term, 1972, Issue No. 87733. (Appeal Allowed to the Superior Court at Misc. Docket 955.)

COUNSEL

James P. McKenna, Jr., Pittsburgh, for appellant.

Robert C. Little, John R. McGinley, Jr., and Bruce E. Woodske, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents. Price, J., files a dissenting opinion. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 255 Pa. Super. Page 41]

In 1972 appellant began a trespass action against appellees Krug and Columbia Hospital, alleging negligent medical treatment. In April 1974 the Hospital served interrogatories on appellant. On November 22, 1974, upon motion of the Hospital under Pa.R.Civ.P. 4019(a)(1) & (c)(2), the lower court ordered appellant to answer the interrogatories within twenty days, or be barred from offering "any testimony at trial as to damages." Appellant filed no answers.*fn1

[ 255 Pa. Super. Page 42]

On June 12, 1975, appellant's then counsel withdrew from the case. Some time later in the summer of 1975 (the docket does not show when), appellant's present counsel entered his appearance.

On September 4, 1975, appellant and her counsel attended a pre-trial conciliation conference, without, however, having first filed a pre-trial statement as required by Allegheny County Local Court Rule 212 VI A.*fn2 The outcome of the conference is not of record, nor is it described in any of the briefs on appeal.

On September 12, 1975, appellant filed a motion to strike the order of November 22, 1974 -- the order that barred any testimony as to damages. On October 14, 1975, after argument, the lower court denied the motion.

[ 255 Pa. Super. Page 43]

On September 10, 1976, appellant's counsel filed a "supplemental" pre-trial statement, naming an expert witness whom he proposed to call at trial, and including a copy of the expert's report on his examination of appellant. Appellees moved to strike the statement on two grounds: first, because it was untimely filed, see Local Rule 212 VI A., supra note 2; and second, because the expert's report contained information on appellant's alleged damages. On October 14, 1976, the lower court granted the motion to strike on the ground of ...


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