against him because they have not opined as to the probability of occurrence of the alleged risks. He argues that this an essential element of this claim and because it was not shown, Corrigan cannot bring it to the jury. Accordingly, he asserts, evidence relating to failure of informed consent should be excluded. In support of this argument, Myers cites Pennsylvania cases holding that evidence relating to the likelihood of a perceived risk occurring is essential to an informed consent claim.
It is true that the cited cases hold that the "trier of fact must be given information as to . . . the likelihood that such risks will actually arise." Festa v. Greenberg, 354 Pa. Super. 346, 360, 511 A.2d 1371, 1378 (1986), app. denied, 515 Pa. 580, 527 A.2d 541 (1987); Sagala v. Tavares, 367 Pa. Super. 573, 578, 533 A.2d 165, 167 (1987), app. denied, 518 Pa. 626, 541 A.2d 1138 (1988); Jozsa v. Hottenstein, 364 Pa. Super. 469, 473, 528 A.2d 606, 608 (1987), app. denied, 518 Pa. 619, 541 A.2d 1138 (1988). However, Pennsylvania courts have also held that Festa "does not hold that expert testimony must establish all [elements] before the question of whether there was an informed consent can go to the jury." Id. (emphasis added). We have held that Corrigan's experts have established the existence of a risk. This evidence is sufficient to send the claim to a jury, and so we do not exclude her experts' testimony on this issue.
Myers also argues that Corrigan's experts' testimony should be excluded because they have not established a causal link between the alleged failure of informed consent and her injuries. We addressed this issue in the December 6, 1994 Memorandum and Order referred to above. We held that Corrigan's experts had presented evidence supporting a causal link. Op. at 10. Accordingly, we do not exclude Corrigan's experts' testimony based on this argument and this motion in limine is DENIED.
3) Evidence regarding an alleged financial tie between Myers and Acromed Corporation.
Myers argues that any alleged financial tie between him and Acromed Corporation is irrelevant to an informed consent claim, and therefore, that the evidence should be excluded from the trial entirely. Under the doctrine of informed consent, a patient is entitled to be informed of all surgical risks faced in a medical procedure. In Kaskie, the Pennsylvania Superior Court held that a doctor's alcoholism was not a surgical risk, and therefore, the patient was not entitled to be informed of that fact. 403 Pa. Super. at 341, 589 A.2d at 216. We find that a financial tie between Myers and Acromed is of the same nature in this respect to a surgeon's alcoholism and therefore, Corrigan was not entitled to be informed of a financial tie before granting informed consent.
However, the alleged financial tie does have relevance in other areas of this litigation, in particular, the negligence claim against Myers. Accordingly, while we will exclude evidence of a financial tie used to support an informed consent claim, we will not exclude it when it is relevant. This motion in limine is therefore GRANTED in part and DENIED in part.
4) Expert testimony regarding the materiality of a risk and/or the ultimate determination of lack of informed consent.
Myers argues that the trier of fact is the appropriate entity to determine the materiality of a risk and determine whether Corrigan gave informed consent to the surgery. We and Corrigan agree. Festa, 354 Pa. Super. at 357, 528 A.2d at 608. This conclusion, however, does not require us to exclude Corrigan's experts' testimony in general. Any objections to testimony at trial should be made at the time of the testimony, when this Court has an actual question to rule upon.
5) Testimony of Carl Larson, Ph.D and Harold Alexander, Ph.D, as to any issue involving negligence and lack of informed consent against Dr. Myers.
Finally, Myers argues that two of Corrigan's experts should be precluded from testifying on the subjects of negligence and informed consent because they are not medical doctors. He does not present any specific caselaw supporting this proposition. In turn, Corrigan argues that the evidence should be admitted, because under the reasoning in Owens v. Concrete Pipe & Prods. Co., 125 F.R.D. 113 (E.D. Pa. 1989), courts today are more flexible in permitting non-medical doctor expert testimony on medical matters.
In general, whether expert testimony is permitted depends on whether the expert's knowledge is likely to assist the trier of fact to arrive at the truth. F.R.E. 702; Hines v. Consolidated Rail Corp., 926 F.2d 262, 272-73 (3d Cir. 1991); Genty v. RTC, 937 F.2d 899, 917 (3d Cir. 1991). We find that Owens stands for the proposition that non-medical doctors can testify as to causation of illness if they have an expertise in that area. For example, in Owens, the experts in question were a chemist and a pharmacologist, both with considerable experience in toxicology. Id. at 114. Our Court permitted their testimony within the bounds of "their personal experience and their knowledge of the scientific literature." Id. at 115.
We find that Drs. Larson and Alexander have unique knowledge in the area of these medical devices. Their testimony is likely to assist the jury in arriving at the truth. We shall, therefore, admit their testimony within the scope of their personal experience, knowledge of the scientific literature and otherwise within the scope of F.R.E. 702. Myers is free, at trial, to attempt to discredit their opinions with the argument that their lack of medical training makes their opinions merit little weight. Owens, 125 F.R.D. at 115. Accordingly, this motion in limine is DENIED.
An appropriate Order follows.
AND NOW, this 11th day of January, 1995, upon consideration of Defendant Myers's Motions in Limine and responses thereto, the Motions are hereby GRANTED in part and DENIED in part. It is hereby ORDERED that evidence concerning an alleged financial tie between Dr. Myers and Acromed Corporation is excluded as to Plaintiff's informed consent claim against Dr. Myers. In all other respects the Motions are DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.
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