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12/08/97 BROOKE BRADY v. BALLAY

December 8, 1997

BROOKE BRADY, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, SCOTT E. BRADY AND KIM A. BRADY, AND SCOTT E. BRADY AND KIM A. BRADY, IN THEIR OWN RIGHT, APPELLANTS
v.
BALLAY, THORNTON, MALONEY MEDICAL ASSOCIATES, INC., AND R. SCOTT THORNTON, M.D.



Appeal from the Order entered April 11, 1997. In the Court of Common Pleas of Montgomery County, Civil No. 91-09591. Before ALBRIGHT, J.

Before: Cirillo, P.j.e., and Eakin and Olszewski, JJ. Opinion BY Cirillo, P.j.e. Dissenting Opinion BY Olszewski, J.

The opinion of the court was delivered by: Cirillo

Filed December 8, 1997

OPINION BY CIRILLO, P.J.E.:

Brooke Brady, a minor, and her parents, Scott E. Brady and Kim A. Brady (the Bradys), appeal from the order of the trial court denying their post-trial motions and entering judgment in favor of Appellees, Dr. R. Scott Thornton, and Ballay, Thornton, Maloney Medical Associates, Inc. We affirm.

The instant appeal concerns a medical malpractice action instituted by the Bradys against appellees, R. Scott Thornton, M.D. and the professional association in which he is a partner, Ballay, Thornton, Maloney Medical Associates, Inc. *fn1 The Bradys claim that their daughter, Brooke, sustained permanent injuries as a result of complications caused by the appellees during her delivery.

On June 23, 1989, at approximately 10:45 a.m., Kim Brady (Kim) was admitted to Holy Redeemer Hospital in labor. Kim had been under the gynecological and obstetrical care of Dr. Thornton throughout her pregnancy. Approximately three hours after she was admitted to Holy Redeemer, Kim was injected with the drug, Pitocin, in order to facilitate the progression and intensity of her contractions. When Dr. Thornton became concerned that the baby's fetal heart rate was periodically decelerating over the three hours following the injection, he transferred Kim to the delivery room where he attempted to deliver Brooke. During delivery, Dr. Thornton used a vacuum extractor to aide in the baby's expulsion from the womb. The baby's shoulders, however, became stuck in Kim's pelvis which required Dr. Thornton to manually manipulate the baby's body to remedy the complication. As he attempted to resolve the shoulder problem, Dr. Thornton accidentally stretched the baby's brachial plexus (neck) nerves. Brooke now suffers from permanent, limited use of her left arm and shoulder as a result of the stretching of her neck nerves during delivery. *fn2

During trial, the Bradys' expert, Dr. Steven R. Goldstein testified (via videotaped deposition) that Dr. Thornton misinterpreted the fetal heart rate tracings taken in the labor room after the injection of Pitocin into Kim's system. The deceleration of the baby's heart rate, he testified, was merely a normal effect of the drug, and not a sign of fetal distress. Dr. Goldstein testified that had Dr. Thornton discontinued the Pitocin earlier, the baby's heart rate would have normalized and Kim would have been able to continue with a normal labor and delivery without the use of a vacuum extractor. Had the vacuum not been used, Goldstein claimed, the baby would not have had a problem with her shoulders fitting through Kim's pelvis, and, thus, no nerve injury would have resulted. After a jury trial, a verdict was returned in favor of appellees. Post-trial motions were filed and denied by the trial court. The Bradys now appeal, raising the following issues for our consideration:

(1) Did the trial court err when it permitted appellees/defendants' expert Joseph S. Ferroni, M.D., to testify beyond the fair scope of his report?

(2) Did the trial court err by precluding appellants/plaintiffs from presenting evidence that appellees/defendants' expert, Dr. Ferroni, was currently being sued by a patient for negligently performed surgery which had been subsequently corrected by appellee/defendant, Dr. Thornton, who would likely be a key fact witness at the trial of Dr. Ferroni's medical malpractice action which had yet to take place at the time of this trial?

(3) Did the trial court err when it limited appellants/plaintiffs' cross-examination of appellees/defendants' expert, Dr. Ferroni, concerning the fact that Dr. Ferroni was also presently being represented by appellees/defendants' attorney, George L. Young, Jr., in a pending medical malpractice claim?

In their first issue on appeal, the Bradys claim that the trial court erred in allowing Dr. Ferroni, the defendant's medical expert, to testify beyond the fair scope of his written expert report produced during pre-trial discovery. The discrepancy between his written and oral testimony, they claim, exposed them to undue prejudice and surprise and constitutes reversible error warranting a new trial.

The standard of review of a trial court's grant or denial of a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, , 521 A.2d 413, 422 (1987). To reverse the trial court, the superior court must consider all the evidence in the light most favorable to the appellee and conclude that the verdict would be changed if another trial were granted. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 537 A.2d 814 (1987).

Admission of expert testimony is a matter within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Walsh v. Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995) (en banc). Where, however, it is evident that the trial court has misapplied the law or reached a manifestly unreasonable, biased, or prejudiced result, this court will find the error reversible. Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996).

In Walsh, (supra) , the trial court limited the appellant's expert to the sole issue presented in his pre-trial report, namely, the issue of whether the appellee's doctor had negligently performed appellee's back operation. On appeal, the appellant contended that the trial court erred in prohibiting his expert from testifying regarding the necessity of the operation. Walsh, Pa. Super. at , 661 A.2d at 419. Our court affirmed the trial court's limitation of the appellant's expert's testimony, finding that:

Because a fair reading of Dr. Murtagh's [Appellant's expert] report does not provide sufficient notice concerning any opinion on his part that the surgery was indeed necessary, [Appellee] would not have been able, based upon the report, to anticipate such testimony and adequately prepare to cross-examine Dr. Murtagh and rebut his testimony on such point. Furthermore, [Appellee's] expert, Dr. Romy, the only expert witness who could have rebutted Dr. Murtagh's proposed testimony, had already testified and had been dismissed as a witness at the time of Dr. Murtagh's testimony. Therefore, [Appellee] had no expert witness available to listen to and observe the testimony of the defense expert in order to assist [Appellee's] counsel in challenging Dr. Murtagh's opinion on cross-examination and in preparing a proper rebuttal.

Walsh, Pa. Super. at , 661 A.2d at 421. In essence, the Walsh court found that because the Appellee would have been prejudiced by the introduction of appellant's expert's testimony, the trial court properly limited the scope of such testimony to the "four corners" of the expert's pre-trial report. See Havasy v. Resnick, 415 Pa. Super. 480, 609 A.2d 1326 (1992), allocatur granted, 533 Pa. 625, 620 A.2d 491 (1993) (where physician's pre-trial report focused exclusively on the care rendered to the plaintiff during the first week following his accident, subsequent trial testimony attempting to impugn another doctor who was not involved in plaintiff's post-accident case was properly excluded by the trial court).

Pennsylvania Rule of Civil Procedure 4003.5 states, in part:

To the extent that the facts known or opinion held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto.

Pa.R.C.P. 4003.5(c). When applying the "fair scope" rule to cases, our court has held that:

In deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word "fair[.]" The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pre-trial report and his trial testimony is of a nature which would prevent the adversary from preparing ...


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