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06/27/97 NORMA J. SHEELY AND PHILLIP A. SHEELY v.

June 27, 1997

NORMA J. SHEELY AND PHILLIP A. SHEELY, APPELLANT
v.
MILDRED R. BEARD, APPELLEE



Appeal from the Judgment of the Court of Common Pleas of York County, Civil Division at No. 92-SU-00465-01. Before BORTNER, J.

Before: Cavanaugh, Popovich and Olszewski, JJ. Opinion BY Popovich, J. Cavanaugh, J. Concurs in the Result.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED June 27, 1997

This is an appeal from the judgment entered in the Court of Common Pleas of York County following the denial of appellants' post-trial motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, a new trial. Herein, appellants contend:

(1) A new trial is warranted since appellee should have been prohibited from introducing into evidence [at the second trial] the first deposition of Gladys S. Fenichle, M.D., since it was taken for use at the first trial.

(2) A new trial is warranted since Dr. Fenichle was not qualified properly as an expert witness and should have been precluded from testifying.

(3) A new trial is warranted since Dr. Fenichle's deposition taken at the first trial contained impermissible hearsay testimony and should have been stricken.

(4) A new trial is warranted since the jury's verdict was against the weight of the evidence.

(5) Appellants should be granted a judgment n.o.v. since no two reasonable minds would disagree that the verdict was improper.

After a careful review of the record, the parties' briefs and the applicable law, we affirm.

On May 9, 1991, appellant Norma J. Sheely was operating her vehicle eastbound on Route 30 in York County, Pennsylvania. At approximately 2:30 p.m., her vehicle collided with a vehicle being driven by appellee Mildred R. Beard. As a result of the accident, appellants contend that Ms. Sheely suffered serious orthopedic and psychiatric injuries. On February 3, 1992, appellants filed a complaint alleging that appellee was negligent and that her negligence was the sole cause of Ms. Sheely's injuries. *fn1 A jury trial was held on December 8 and 9, 1994. Appellants were represented by David C. Cleaver, Esquire. At this trial, appellee presented Dr. Fenichle's videotaped deposition testimony which was taken on November 8, 1994. Dr. Fenichle testified with a reasonable degree of medical certainty that Ms. Sheely did not suffer from a psychiatric disorder resulting from the May, 1991, automobile accident. Following the trial, the jury returned a verdict in favor of appellee, awarding appellants zero damages. Appellants filed a timely post-trial motion seeking a new trial. In their post-trial motion, appellants alleged that it was undisputed at trial that Ms. Sheely sustained orthopedic injuries, and, therefore, that an award of zero damages was against the weight of the evidence. The trial court agreed and granted appellants' post-trial motion for a new trial.

On October 2, 3 and 4, 1995, a second jury trial was held. Appellants were represented by Dale E. Anstine, Esquire. Prior to trial, appellee listed Dr. Fenichle as an expert medical witness and sent appellants a notice of deposition scheduling Dr. Fenichle's videotaped deposition for September 29, 1995. Appellee indicated that the deposition was scheduled for the purpose of obtaining rebuttal testimony. Appellee informed appellants that she would be introducing Dr. Fenichle's November 8, 1994, videotaped deposition testimony at the second trial. Appellants filed a motion in limine seeking to exclude Dr. Fenichle's November 8, 1994, videotaped deposition on the grounds that it was taken for purposes of the first trial only and that it contained impermissible hearsay. They also requested that Dr. Fenichle's September 29, 1995, deposition be excluded since she was not "requalified" as an expert. The trial court denied the motion. Following the trial, the jury returned a verdict in favor of appellants in the amount of $13,500.00. This was the amount of Ms. Sheely's orthopedic-related injuries. Believing that the jury improperly failed to consider Ms. Sheely's psychiatric injuries, appellants filed a timely post-trial motion seeking a judgment n.o.v. or, in the alternative, a new trial. By order dated June 24, 1996, the trial court denied the motion. This appeal followed.

Appellants' first contention is that the trial court erred in failing to grant a new trial since Dr. Fenichle's November 3, 1994, videotaped deposition was admitted improperly at the second trial. *fn2 Specifically, appellants contend that the applicable statutory provisions do not permit depositions taken and filed in a former trial to be used in a subsequent, new trial. They also contend that the former deposition was inadmissible hearsay under 42 Pa.C.S.A. § 5917, which governs the admissibility of former testimony. Appellants concede that pursuant to 42 Pa.C.S.A. §§ 4017.1 and 4020(a)(5) a medical expert's videotaped deposition may be admissible at trial without regard to the expert's availability. However, appellants contend that before a medical expert's former deposition can be admitted at a subsequent, new trial the proponent of the expert is required to demonstrate that ...


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