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ANGELO BROPHY AND CAROL BROPHY v. HERNAN BRIZUELA (10/01/86)

filed: October 1, 1986.

ANGELO BROPHY AND CAROL BROPHY, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLANTS,
v.
HERNAN BRIZUELA, M.D., MIHAN MAANI, M.D., ROOPALI BHATTACHARJEE, M.D. AND EPISCOPAL HOSPITAL



Appeal from the Order entered December 3, 1985, Court of Common Pleas, Philadelphia County, Civil Division at No. 5603 December Term, 1982.

COUNSEL

Andrea B. Witten, Philadelphia, for appellants.

John T. Quinn, Philadelphia, for Maani, appellee.

Anne T. Hopkins, Philadelphia, for Bhattacharjee, appellee.

Montemuro, Johnson and Cercone, JJ.

Author: Johnson

[ 358 Pa. Super. Page 402]

In this appeal from the order granting summary judgment we are asked to decide two intertwined issues. First, we are asked to decide whether the trial court abused its discretion in imposing a sanction excluding the use of any expert testimony pertaining to the subject matter of the interrogatories due to Appellants' failure to answer the interrogatories after a court order to do so. Secondly, we are asked to consider whether this exclusion is a proper ground for granting summary judgment in a medical malpractice case since Appellants are unable to have the benefit of the expert testimony.

On December 30, 1982, Appellants, Angelo and Carol Brophy, filed a complaint in trespass and assumpsit against Appellees seeking damages for Appellees' allegedly negligent performance of a bilateral tubal ligation. Appellants base their claim on the fact that Appellees performed a tubal ligation on Carol Brophy and she subsequently became pregnant. Appellees are Dr. Hernan Brizuela, Dr. Maani and Dr. Roopali Bhattacharjee, a resident physician. Dr. Maani was the attending physician who actually performed the tubal ligation.

On October 10, 1984, Appellee Maani served expert interrogatories upon Appellants. After failing on numerous occasions to have Appellants answer these expert interrogatories, on May 22, 1985, Appellee Maani filed a motion for further sanctions against Appellants on the basis of their failure to answer the expert interrogatories. On July 2, 1985, the court below issued an order precluding Appellants from introducing any testimony or evidence pertaining to the subject matter of the expert interrogatories (as to Appellee Maani only).

[ 358 Pa. Super. Page 403]

On August 13, 1985, Appellee Maani filed a motion for summary judgment. On September 13, 1985, Appellants filed a petition for reconsideration of the court's order of July 2, 1985. The petition was denied on October 16, 1985. On December 3, 1985, the lower court granted appellee Maani's motion for summary judgment. This appeal followed, on December 27, 1985. Along with Appellants' appeal of the summary judgment in favor of Appellee-Maani, Appellee-Bhattacharjee filed a brief contending that Maani should not be dismissed from the case.

The imposition of sanctions, is within the discretion of the trial court. Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971); Crance v. Sohanic, 344 Pa. Super. 526, 530, 496 A.2d 1230, 1232 (1985). A reading of the Pennsylvania Rules of Civil Procedure pertaining to the discovery of expert testimony shows that these sanctions include the exclusion of expert testimony after failure to disclose the nature of this testimony pursuant to a discovery order. Rule 4003.5 of the Pennsylvania Rules of Civil Procedure, provides in pertinent part:

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control ...


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