United States District Court, Middle District of Pennsylvania
July 11, 1991
RONALD W. NIKLAUS, D.D.S., AND MARY NIKLAUS, PLAINTIFFS,
VIVADENT, INC., U.S.A., PATTERSON DENTAL SUPPLY CO., AND VIVADENT LIECHTENSTEIN, DEFENDANTS.
The opinion of the court was delivered by: McCLURE, District Judge.
This is a diversity action commenced by Plaintiffs on December
18, 1987. The complaint alleges that a dental resin curing light
known as the "Heliomat" which is distributed and/or sold by the
defendants and used in the dental practice of Plaintiff, Dr.
Ronald W. Niklaus, caused eye damage to Dr. Niklaus. Plaintiffs
assert claims in strict liability, breach of warranty, negligence
and loss of consortium.
A jury was selected July 1, 1991 (per order of March 27, 1991),
and presentation of the case is scheduled to commence July 15,
1991 (per order of April 4, 1991).
Currently before the court are several recent motions of
defendants Vivadent, Inc., U.S.A. and Vivadent ETS (referred to
collectively as "Vivadent").*fn1 These include three motions in
limine to exclude plaintiffs' expert testimony for various
reasons, a motion for summary judgment based on plaintiffs'
failure to retain a medical expert to establish causation and a
motion to dismiss due to the continuous failure of plaintiffs'
counsel to comply with relevant procedural rules and deadlines.
On June 27, 1991, Vivadent filed a motion to dismiss due to the
continuous failure of plaintiffs' counsel to comply with
procedural rules and deadlines. Defendant Patterson Dental Supply
joined in this motion. In addition to the failure of plaintiffs'
counsel to submit expert reports in a timely manner, his
pre-trial memorandum was filed late and failed to comply with
Local Rule 410, which requires the submission of a witness list
and pre-numbered schedule of exhibits, with a brief
identification of each, on the clerk's exhibit form. Plaintiffs'
exhibit list includes such entries as "Book", "Posters" and
"Literature". This same list was submitted to defense counsel in
violation of Local Rule 408.3, which requires the parties to
present their exhibits for examination. Despite numerous requests
by defendants, Dr. Niklaus was not deposed until June 22, 1991.
The missed deadlines and late compliance with discovery requests
on the part of plaintiffs' counsel are too numerous to mention.
At the June 28, 1991, pre-trial conference, the Court had the
opportunity to witness firsthand plaintiffs' counsel's lack of
preparedness in this matter. A review of his conduct in this
matter reveals a gross lack of consideration for the procedural
rules which were enacted to ensure the fair and orderly
administration of justice.
While Vivadent requests that we dismiss this case due to
counsel's conduct, there has been no suggestion that the
plaintiffs were personally responsible for their attorney's
conduct. The plaintiffs themselves should not be subjected to
such a dire penalty for conduct which was not of their own doing.
Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984). Indeed, it would be more appropriate to impose on
plaintiffs' counsel the costs, including attorney's fees, of
motions and briefs which were prompted by his dilatory
conduct.*fn2 Id. at 869.
Also on June 27, 1991, Vivadent filed a motion for summary
judgment. Defendant Patterson Dental Supply again joined in
Vivadent's motion. Vivadent argues that plaintiffs cannot
establish the prima facie element of causation due to their
failure to retain a medical expert who will testify to the causal
connection between Dr. Niklaus' medical condition and the use of
the Heliomat light. Vivadent claims that the testimony of
plaintiffs' proposed expert, Marcus D. Benedetto, is insufficient
to prove causation, because Benedetto is not a medical doctor and
is not otherwise qualified to provide a medical diagnosis of Dr.
Niklaus. They correctly point out that a necessary prerequisite
to causation is the medical diagnosis of an impairment consistent
with the professed cause. It is significant to note that this
argument goes to the sufficiency of the evidence on causation
rather than to the admissibility of Benedetto's testimony.
"Pennsylvania law is clear that in a personal injury case when
there is no obvious causal relationship between the accident and
the injury, unequivocal medical testimony is necessary to
establish the causal connection." Albert v. Alter,
252 Pa. Super. 203, 224, 381 A.2d 459, 470 (1977) (citing Smith v.
German, 434 Pa. 47, 253 A.2d 107 (1969); Florig v. Sears,
Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957); Washko v.
Ruckno, Inc., 180 Pa. Super. 606, 121 A.2d 456 (1956); Rich v.
Philadelphia Abattoir Co., 160 Pa. Super. 200, 50 A.2d 534
(1947)); see also Maliszewski v. Rendon, 374 Pa. Super. 109,
542 A.2d 170 (1988); Lattanze v. Silverstrini, 302 Pa. Super. 217,
448 A.2d 605 (1982). An obvious causal relationship exists when
the injury is either an "immediate and direct" or the "natural
and probable" result of the complained of act. Lattanze v.
Silverstrini, 302 Pa. Super. 217, 223, 448 A.2d 605, 608 (1982)
(citations omitted). The injury and the act must be so closely
connected that a lay person could diagnose the causal connection.
The instant matter clearly falls in the category of cases
requiring expert medical testimony. Consequently, the only issue
is whether the testimony offered by plaintiffs' lone expert,
Benedetto, is expert medical testimony. "[S]uch testimony is
needed to establish that the injury in question did, with a
reasonable degree of medical certainty, stem from the
[complained of] act." Hamil v. Bashline, 481 Pa. 256, 266,
392 A.2d 1280, 1285 (1978) (emphasis added). Although it may
reasonably be inferred from the requirement of expert medical
testimony that only a medical doctor may testify, this is not
explicitly stated in the Pennsylvania case law reviewed by this
court. Therefore, for the purpose of this memorandum, we will
assume that under some rare circumstances, Pennsylvania law may
allow a personal injury case in which there is no obvious causal
relationship to be submitted to a jury on the basis of causation
testimony presented by a qualified expert other than a medical
Expert medical testimony on causation requires the witness to
offer expert medical testimony on the injury itself and the
relationship between the injury and the alleged cause.
Consequently, an expert offered by plaintiffs on the issue of
causation in this case must be an expert in diagnosing, and in
determining the cause of, injuries to the eye.
Benedetto's relevant background includes a Ph.D. in visual
science, four years experience as a pre-doctoral fellow at the
University of Florida Department of Ophthalmology, and he has
written articles and made presentations pertaining to light
curing units and ophthalmic concerns. However, nothing in
Benedetto's background indicates that he is qualified to make a
medical diagnosis of Dr. Niklaus' condition. Indeed, his
examination of plaintiff amounted to nothing more than measuring
plaintiff's performance on a series of eye charts. While
loss of visual capacity is significant in this case, this claim
is meaningless without a diagnosis of the underlying defect or
physical abnormality which manifests itself as a loss of visual
capacity. Benedetto's proffered testimony on causation merely
matches a symptom with what he believes is a probable cause.*fn3
It is axiomatic that any one symptom could have numerous
Since Benedetto is not qualified by training or experience to
diagnose medically the actual injury to Dr. Niklaus' eyes, his
testimony cannot establish causation in the instant matter, Cf.
Novak v. Workmen's Compensation Appeal Board, 59 Pa. Cmwlth.
596, 602, 430 A.2d 703, 706 (1981) (Although expert
microbiologist was not a medical doctor, he testified well within
the scope of his practice or profession when he explained the
effects of leptospirosis on the human body, the methods of
testing for the disease, and the negative results of tests), and
because plaintiffs have failed to offer any other expert medical
testimony on the issue of causation, summary judgment will be
entered in favor of the defendants.
This disposition of plaintiffs' claim renders Vivadent's
motions in limine moot, and they will be denied as such.
We therefore enter the following order.
For the reasons stated in the accompanying memorandum, IT IS
1. Defendant Vivadent's motion in limine (record document # 88,
filed June 3, 1991) to exclude the testimony of Marcus D.
Benedetto is denied as moot.
2. Defendant Vivadent's motion in limine (record document # 94,
filed June 21, 1991) to exclude testimony of Benedetto not
contained in his expert report is denied as moot.
3. Defendant Vivadent's motion in limine (record document # 92,
filed June 21, 1991) to exclude the testimony of experts from
whom reports were not submitted prior to the Court's May 15, 1991
deadline is denied as moot.
4. Defendant Vivadent's motion (record document # 100, filed
June 27, 1991) to dismiss due to the continuous failure to comply
with procedural rules and deadlines by plaintiffs' counsel is
denied. However, within ten days of the date of this order, the
defendants may submit memoranda, with supporting documentation,
in support of an order imposing sanctions on plaintiffs' counsel.
The memoranda shall detail Vivadent's and Patterson Dental
Supply's costs, including attorney's fees, of presenting motions
and briefs prompted by the conduct of plaintiffs' counsel
outlined in the accompanying memorandum. Plaintiffs' counsel
shall have ten days from date of service of defendants' memoranda
within which to file a response.
5. Defendant Vivadent's motion (record document # 98, filed
June 27, 1991) for summary judgment is granted. Entry of judgment
in favor of all of the defendants and against the plaintiffs will
be deferred until disposition of the sanctions issue.
6. The jury selected July 1, 1991 is discharged.