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MATTHEW J. AUGUSTINE AND MICHAEL H. AUGUSTINE v. JUAN F. DELGADO (07/13/84)

filed: July 13, 1984.

MATTHEW J. AUGUSTINE AND MICHAEL H. AUGUSTINE, MINORS, BY THEIR PARENTS AND NATURAL GUARDIANS, HENRY D. AUGUSTINE AND JOANNE C. AUGUSTINE, AND HENRY D. AUGUSTINE AND JOANNE C. AUGUSTINE, IN THEIR OWN RIGHT, APPELLANTS,
v.
JUAN F. DELGADO, M.D., JOHN PAGANA, M.D., AND SUNBURY COMMUNITY HOSPITAL



No. 00114 HBG 83, Appeal from the Judgment entered April 8, 1983 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 5741 S 1978.

COUNSEL

Richard C. Angino, Harrisburg, for appellants.

Christian S. Erb, Jr., Harrisburg, for appellees.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 332 Pa. Super. Page 196]

Appellants contend that the lower court erred in (1) permitting the testimony of Dr. Naeye, one of appellees' expert witnesses; (2) excluding a significant part of the deposition of Dr. Perkins, one of appellants' experts; and (3) allowing defense counsel to aver an "unfavorable inference" from appellants' failure to call certain expert witnesses. Upon thorough review of the record and complete exploration of appellants' claims, we conclude that there was no error and, accordingly, affirm.

The record reveals the following facts: On October 1, 1975, appellant Joanne Augustine gave birth to twin boys at the Sunbury Community Hospital in Sunbury, Pennsylvania. Appellee Dr. Juan Delgado, an obstetrician/gynecologist, cared for Mrs. Augustine during the course of her pregnancy. Following the twins' birth, Dr. John Pagana, a pediatrician, assumed care of the children. In March, 1977, after the twins were diagnosed as suffering from cerebral palsy and mental retardation, appellants, Mrs. Augustine

[ 332 Pa. Super. Page 197]

    and her husband, brought suit on their own behalf and on behalf of their sons, alleging that the negligence of Sunbury Hospital, and Drs. Delgado and Pagana caused the twins' abnormalities. After lengthy pre-trial discovery and several continuances over a period of approximately two-and-one-half years, the jury trial ultimately commenced on June 15, 1981 and ended a month later. The jury, given a series of special interrogatories by the lower court, concluded that neither Dr. Delgado nor the Sunbury Community Hospital had committed negligence that was a substantial factor in the resulting injury. The jury found Dr. Pagana not negligent. Appellants' post-trial motion, which was denied, and this appeal are limited to Dr. Delgado's negligence, "the other defendants having bought their peace." (Lower Court Opinion at 2).

The crux of appellants' major contention, that the lower court erroneously permitted the testimony of Dr. John Naeye, concerns our interpretation of Pa.R.Civ.P. 4003.5, Discovery of Expert Testimony. This rule provides for the "[d]iscovery of facts known and opinions held by an expert . . . acquired or developed in anticipation of litigation or for trial . . . .", Pa.R.Civ.P. 4003.5(a) and, in pertinent part, states:

(1) A party may through interrogatories require

(a) Any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as

[ 332 Pa. Super. Page 198]

    to scope and such provisions concerning fees and expenses as the court may deem appropriate.

(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions or matters on which he has not been interrogated in the discovery proceedings.*fn1

Appellants, in emphasizing their specific allegations concerning Dr. Naeye's testimony, cite the Explanatory Note following Rule 4003.5.

(6) To prevent incomplete or "fudging" of reports which would fail to reveal fully the facts and opinions of the expert or his grounds therefor, subdivision (c) provides that an expert's direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony as set forth in his deposition and answer to interrogatories, separate report or supplements thereto.

[ 332 Pa. Super. Page 199]

However, he may testify to anything regarding matters in which he was never questioned in the discovery proceedings. This is a new provision not expressly found in the Federal rule. It is implicit in the Federal rule. Where the full scope of the expert's testimony is presented in the answer to interrogatories or the separate report, as provided in subdivisions (a)(1) and (2), this will fix the permissible limits of his testimony at the trial. But, if the inquirer limits his inquiry to one or more specific issues only, the expert is free to testify at trial as to any other relevant issues not included in the discovery. Therefore, what happens at trial may depend upon the manner in which the expert is interrogated. The inquirer may be well adviised to conduct his discovery broadly by paraphrasing the language at 4003.5(a), which will require the expert to state all his opinions and grounds, thus preventing surprise testimony at trial concerning grounds never raised during discovery.

Pa.R.Civ.P. 4003.5 Explanatory Note.

Appellants argue first, and we agree, that Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise. See Good-rich-Amram 2d ยง 4003.5:2 ("The outcome of litigation may be controlled by, or depend to a great extent on, the opinion of an expert, and simple fairness seems reason enough to allow the party against whom that opinion is to be used sufficient time after discovery to develop his case in light of that opinion."). What constitutes surprise and prejudice, however, depends upon the pre-trial particulars of each case. In other words, sufficient time and opportunities to prepare for and counter expert testimony in one case may prove inadequate in another case. Few Pennsylvania appellate court cases have addressed Rule 4003.5 because of its relatively recent promulgation. Allegheny County Rule 212, similar in relevant part to Pa.R.Civ.P. 4003.5, has been construed upon multiple occasions and offers guidance in solving the maze of expert witness discovery. Rule 212 provides, in pertinent part, that:

[ 332 Pa. Super. Page 200]

A. Plaintiff, on or before the date set forth in the notice accompanying the publication of the trial list;

(1) shall serve upon all parties a written statement containing:

(d) The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusions of the expert.

Allegheny County Local Rule 212. In Sindler v. Goldman, 309 Pa. Superior Ct. 7, 454 A.2d 1054 (1982), decided under Rule 212 and upon which appellants rely, the court noted:

The purpose of the discovery rules is to prevent surprise and unfairness and to allow a trial on the merits. When expert testimony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject which would effectively rebut unexpected testimony. By allowing for early identification of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot. Thus, the rule ...


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