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filed: October 15, 1986.


Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1113 February Term, 1978.


Barton A. Haines, Philadelphia, for appellants.

James Young, Philadelphia, for appellee.

Wickersham, Wieand and Popovich, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 357 Pa. Super. Page 526]

The principal issue in this appeal following a defense verdict in an action of medical malpractice against Thomas Jefferson University is whether the trial court erred when it refused to allow the plaintiffs to introduce into evidence portions of the videotaped deposition of a defense expert who was not called to testify at trial. We conclude, for reasons hereinafter appearing, that the trial court did not abuse its discretion or commit error; and, therefore, we affirm.

In February, 1962, Tanya Pascone gave birth to a baby girl who had severe birth defects. The child received treatment at Johns Hopkins University Hospital in Baltimore, Maryland, but died within three months of birth. Following the death of their first child, Tanya Pascone and her husband, William Pascone, moved from their residence in Maryland to Philadelphia where, in 1963, Mrs. Pascone came under the care of various physicians in the Department of Obstetrics and Gynecology at Jefferson University. The Pascones apprised their physicians, who were employees of Jefferson University, with respect to the medical history of their first child and inquired whether there was a danger that another child would be born with similar birth defects. The Pascones were informed that such an occurrence was

[ 357 Pa. Super. Page 527]

    unlikely. Based on this advice, Mrs. Pascone again became pregnant and, in 1964, gave birth to a normal, healthy boy. Tragically, however, history was repeated when, in 1968, another girl, Sonya, was born to Mrs. Pascone with birth defects similar to those of the first child.

The Pascones commenced an action against Jefferson University to recover damages for their emotional suffering and for the medical expenses which they had incurred as a result of Sonya's disabilities.*fn1 They contended that the hospital was vicariously liable for the negligence of hospital-employed physicians who had failed to determine and advise them, prior to conception of their daughter Sonya, that there was a likelihood that additional children would be born with congenital birth defects. At trial, liability was made to depend upon whether competent physicians, acting in accordance with accepted standards of practice within the medical community during the 1960s, should have been aware that the disabilities suffered by the Pascones' first child were genetically transmitted and thus could reappear in children subsequently born to them.

In defense of this issue, the hospital offered the testimony of Dr. William Beck, an obstetrician and gynecologist, who opined that in light of the state of genetic research during the relevant time period, a competent obstetrician would not have been expected to know the cause of the birth defects suffered by the Pascones' first child, would not have conducted independent research to determine the cause thereof, and would not have been expected to seek consultation with a geneticist. After the hospital had rested, the plaintiffs sought to rebut Dr. Beck's testimony by offering the cross-examination testimony of Dr. Kaighn Smith, whose pre-trial depositions had been recorded on videotape. Dr. Smith, a board certified obstetrician and gynecologist, had been retained by the hospital to give an expert medical opinion concerning the standards of medical

[ 357 Pa. Super. Page 528]

    care during the 1960s. Unsure of whether Dr. Smith would be available during trial, counsel for Jefferson University had caused Dr. Smith's deposition to be taken and recorded approximately two and one-half weeks before the scheduled trial date. The videotaped deposition of Dr. Smith included cross-examination which had been conducted by plaintiffs' attorney. By asking Dr. Smith during cross-examination to assume certain hypothetical facts, plaintiffs' counsel had been able to extract answers which plaintiffs believed would be helpful in showing that the hospital physicians had been negligent. In support of their motion to admit the videotaped cross-examination of Dr. Smith at trial, plaintiffs argued that because Jefferson University had deposed Dr. Smith for the sole purpose of using his testimony at trial, the trial had actually commenced upon the taking of his deposition and, therefore, Dr. Smith's ...

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