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PAUL H. FOSTER v. MCKEESPORT HOSPITAL (11/29/78)

decided: November 29, 1978.

PAUL H. FOSTER, APPELLANT,
v.
MCKEESPORT HOSPITAL, A CORPORATION, APPELLEE



No. 931 April Term 1977, Appeal from the Order of July 8, 1977 of the Court of Common Pleas of Allegheny County, Pa., Civil Div. at No. 2119 October Term, 1973.

COUNSEL

Edward O. Spotts, Pittsburgh, with him James P. Gill, Pittsburgh, for appellant.

Richard S. Dorfzaun, Pittsburgh, for appellee.

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

Author: Spaeth

[ 260 Pa. Super. Page 488]

On January 7, 1972, appellant, Paul H. Foster, was injured when a boiler at McKeesport Hospital exploded. After the liability of the hospital had been established at a separate proceeding, a trial was held to determine the extent of appellant's damages. The jury returned a verdict of $11,500. Appellant filed a motion for a new trial, alleging that the verdict was inadequate and assigning fifteen errors by the trial court. The lower court denied appellant's motion, and he now appeals.

As a preliminary matter, we must decide whether the errors assigned by appellant have been preserved for appeal. The lower court ruled, and the hospital as appellee argues to us, that appellant preserved only his objection to the adequacy of the verdict and an assignment of error regarding the cross-examination of appellee's expert witness. A review of the record reveals, however, that all but two of the errors assigned have been preserved.*fn1 The lower court's mistaken

[ 260 Pa. Super. Page 489]

    ruling resulted from a misapplication of the rule set forth in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), that a specific exception at trial is needed to preserve an objection for appeal. Whenever counsel objects to a question asked by opposing counsel, and the objection is sustained, an exception is granted automatically; a formal request for an exception is unnecessary. Commonwealth v. Alvin, 257 Pa. Super. 290, 390 A.2d 827 (1978), following Commonwealth v. Frazier, 467 Pa. 505, 508, 359 A.2d 390, 391 (1976) (ROBERTS, J., concurring). While it is true that an objection to excluded testimony may be waived if counsel acquiesces in the exclusion without obtaining a ruling by the court, Commonwealth v. Frazier, supra, at 509, 359 A.2d at 391-92 (ROBERTS, J., concurring), that did not occur here. In each instance cited by appellant as an erroneous exclusion of testimony, appellant, through extended colloquy, obtained a ruling. Accordingly, we shall review appellant's objections to the rulings of the trial court, as well as the adequacy of the verdict.

Appellant's most substantial objection concerns the trial court's refusal to allow testimony by appellant's expert witness, Dr. Charles M. Reel, regarding the causation of appellant's cataracts. Prior to trial appellant was examined by several doctors. Dr. Carlisle E. McKee examined appellant in July 1973, approximately a year and a half after the accident. In connection with his examination, Dr. McKee prepared hand-written office notes and also, at the request of appellant's counsel, a type written pre-trial report. The report contained Dr. McKee's opinion that the accident caused the development of cataracts in both of appellant's eyes. Dr. McKee died before trial, however, and appellant was again examined, this time by Dr. Reel, in February

[ 260 Pa. Super. Page 4901977]

. In May 1977, a videotaped deposition of Dr. Reel was made, which appellant offered into evidence at trial along with Dr. McKee's notes and report. The court admitted Dr. McKee's notes and report, but excluded those parts of Dr. Reel's deposition that dealt with the causation of appellant's cataracts.

In the crucial part of Dr. Reel's deposition, where the foundation for his opinion was laid, the doctor stated no basis for his opinion other than Dr. McKee's pre-trial report. Evidently, Dr. Reel was unable to determine causation from personal observation because by the time he saw appellant, appellant's cataracts had been surgically removed by a third doctor (who was not called at trial). Deposition of Dr. Reel at 18-19. When asked by appellant's counsel for the foundation of his opinion, Dr. Reel merely quoted verbatim a portion of Dr. McKee's report, in which Dr. McKee said that "the unusual types of posterior cortical and tabular sclerosis" and "the patient's history of being involved in a severe explosion" caused him to believe that appellant's condition was caused by ...


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