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AGNES D. NOWOSIELSKI AND EDWARD E. NOWOSIELSKI v. GENEVIEVE A. KRYZOSIAK (08/29/80)

filed: August 29, 1980.

AGNES D. NOWOSIELSKI AND EDWARD E. NOWOSIELSKI, HER HUSBAND, APPELLANTS,
v.
GENEVIEVE A. KRYZOSIAK



COUNSEL

H. Fred Mercer, Pittsburgh, for appellants.

John A. Robb, Jr., Pittsburgh, for appellee.

Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files a dissenting opinion.

Author: Hoffman

[ 280 Pa. Super. Page 244]

Appellants contend that the lower court should have barred appellee's medical witness from testifying at trial because appellee failed to include a copy of the witness'

[ 280 Pa. Super. Page 245]

    medical report in her pretrial statement, as required by a local rule of court. We disagree and, accordingly, affirm the judgment of the lower court.

Appellants-plaintiffs brought this action in trespass to recover for personal injuries which plaintiff Agnes Nowosielski allegedly sustained in an automobile collision with appellee-defendant. Throughout these proceedings defendant has admitted her negligence in the incident, but has contended that her negligence did not cause the injuries for which plaintiffs seek to recover. At trial defendant called as a witness Dr. Thomas C. Long, a physician who had examined Mrs. Nowosielski on three separate occasions within five weeks following the accident. Dr. Long's testimony strongly suggested that Mrs. Nowosielski's injuries could not have occurred in the automobile collision involving defendant. The jury returned a verdict in favor of the defendant, and the lower court subsequently denied plaintiffs' motion for a new trial. This appeal followed.

Rule 212 VI. C. 1. c. of the Rules of Civil Procedure of the Allegheny County Court of Common Pleas provides that before trial the defendant "[s]hall serve upon all other parties a written statement containing . . . medical reports of any . . . doctor who treated, examined, or was consulted in connection with the injuries complained of and who may be called as a witness." Rule 212 VI. E. of the Allegheny County Rules of Civil Procedure provides that "[w]itnesses . . . whose reports have not been furnished under . . . [Rule 212] VI. C. 1. c. . . . will not, under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case." In the present case defendant failed to include in her pre-trial statement a copy of the notes which Dr. Long had taken during each of Agnes Nowosielski's office visits.*fn1 Accordingly, contend plaintiffs, the lower court committed reversible error in allowing Dr. Long to testify at trial.

[ 280 Pa. Super. Page 246]

"To preclude . . . testimony is a drastic sanction, and if it is not necessary under the facts of the case, an abuse of discretion may be found." Gill v. McGraw Electric Co., 264 Pa. Super. 368, 383, 399 A.2d 1095, 1102 (1979). Thus, notwithstanding the clear language of Rule 212 VI. E. barring "under any circumstances whatsoever" the testimony of witnesses whose reports have not been furnished as required, we must determine whether such a sanction would have been appropriate under the facts of this case.

In Gill v. McGraw Electric Co., supra, this Court was called upon to decide whether the appellee's violation of a pretrial order requiring disclosure of the names and opinions of expert witnesses constituted grounds for the exclusion of the witnesses' testimony. We noted the following basic considerations which should be taken into account in such situations:

"(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court ...


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