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November 6, 2002


The opinion of the court was delivered by: J. Curtis Joyner, United States District Judge


This medical malpractice action is now before this Court for disposition of the post-trial motions of Defendants Sanford Davne, M.D. and Donald Myers, M.D. to alter/amend the judgment and for a new trial. For the reasons which follow, the motion to amend shall be granted but the motion for new trial is denied.

History of the Case

Plaintiff, Judy Corrigan, brought this suit against Drs. Davne and Myers on March 4, 1994 for their alleged negligence in implanting pedicle screws and rods during spinal surgery which they performed on her on March 5, 1992. Plaintiff also alleged that the defendant doctors failed to obtain her informed consent to the procedures which they performed on that date and that they were further negligent in failing to diagnose a tumor (meningioma) on her thoracic spine, which had to be removed at a later time.*fn1

Following a two-week trial, the jury returned a verdict in favor of the plaintiff and against the defendant doctors in the amount of $400,000. Liability was apportioned at 60% to Dr. Davne and 40% to Dr. Myers. Defendants thereafter moved to alter and/or amend the judgment and for a new trial.*fn2

Standards for New Trial and to Alter Judgment

It is well-settled that the ordering of a new trial is a matter committed to the sound discretion of the district court. Bonjourno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 812 (3d Cir. 1984), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986). Indeed, Fed.R.Civ.P. 59(a) states in relevant part:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . .

A court may grant a new trial if doing so is required to prevent injustice or to correct a verdict that was against the weight of the evidence. Ballarini v. Clark Equipment Co., 841 F. Supp. 662, 664 (E.D.Pa. 1993), aff'd, 96 F.3d 1431 (3d Cir. 1996). A court may also grant a new trial if the verdict was the result of erroneous jury instructions, was excessive or clearly unsupported by the evidence or was influenced by extraneous matters such as passion, prejudice, sympathy or speculation. Lightning Lube v. Witco Corp., 802 F. Supp. 1180, 1186 (D.N.J. 1992), aff'd, 4 F.3d 1153 (3d Cir. 1993).

A new trial, however, cannot be granted merely because the court would have weighed the evidence differently or reached a different verdict. Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231, 1235 (E.D.Pa. 1992), aff'd, 977 F.2d 568 (3d Cir. 1992). See Also: Olefins Trading, Inc. v. Han Yang Chemical Corp., 9 F.3d 282, 289 (3d Cir. 1993); Sandrow v. United States, 832 F. Supp. 918 (E.D.Pa. 1993). Previous courts have warned that a court must refrain from interfering with the jury's verdict unless it is clear that the jury has reached a seriously erroneous result. Lillis v. Lehigh Valley Hospital, Inc., 1999 U.S. Dist. LEXIS 13933, *11 (E.D.Pa. 1999). Thus, a new trial may be granted only where a miscarriage of justice would result if the verdict were to stand. Id., citing Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991). Absent a showing of substantial injustice or prejudicial error, a new trial is not warranted and it is the court's duty to respect a plausible jury verdict. Montgomery County v. Microvote Corp., Civ. No. 97-6331, 2001 U.S. Dist. LEXIS 8727 at *26 (E.D.Pa. June 25, 2001), citing Goodwin v. Seven-Up Bottling Co. of Philadelphia, No. 96-2301, 1998 WL 438488 at *3 (E.D.Pa. July 31, 1998).

On the other hand, motions to alter and/or amend judgment are generally made pursuant to Fed.R.Civ.P. 59(e) and must rely on one of three major grounds: (1) an intervening change in controlling law, (2) the availability of new evidence not available previously, or (3) the need to correct clear error of law or prevent manifest injustice. North River Insurance Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Indeed, a Rule 59(e) motion is not designed to permit a party to raise new issues previously available but not raised prior to entry of judgment . . ., nor are Rule 59(e) motions designed to allow a party to present additional evidence as a basis for relief. Falkenberg Capital Corp. v. Dakota Cellular, Inc., 925 F. Supp. 231, 243 (D.Del. 1996), citing, inter alia, Kiewit E. Co. v. L & R Construction Co., 44 F.3d 1194, 1204 (3d Cir. 1995) and United States v. Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974, 987 (3d Cir. 1992).


A. Admission of Nurse Patterson's expert testimony.

Defendants first object to the Court's admission of the expert testimony of Terri S. Patterson, R.N., M.S.N.C.R.R.N. Specifically, they contend that Nurse Patterson's testimony concerned Plaintiff's future medical treatment and therefore involved a "medical diagnosis," which is outside the expertise of a professional nurse.

Fed.R.Evid. 702 outlines the parameters under which expert testimony may be admitted in the district courts. Pursuant to that rule,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

There are thus three intertwined bases for excluding testimony under Rule 702: (1) if the testimony will not assist the trier of fact; (2) if scientific evidence is not sufficiently reliable; and (3) if the particular expert does not have sufficient specialized knowledge to assist the jurors. Petruzzi's IGA Supermarkets, Inc. v. Darling Delaware, Inc., 998 F.2d 1224, 1238 (3d Cir. 1993). If expert testimony is overly confusing or more prejudicial than probative, then it also can be excluded under Rule 702. Id. The determination of the competency of an expert witness rests with the broad discretion of the district court, whose action is to be sustained unless manifestly erroneous. Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 114 (3d Cir. 1987), citing, inter alia, Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962) and Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 682 (3d Cir. 1980). As a general rule, federal courts have maintained a liberal policy of admitting expert testimony because once the court decides that the expert's testimony would be helpful to the jury, the jury is entitled to evaluate the testimony. Montgomery County v. Microvote Corporation, 152 F. Supp.2d 784, 798 (E.D.Pa. 2001).

Under the Professional Nursing Law, 63 P.S. § 211, et. seq., the "practice of professional nursing"

means diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed physician or dentist. The foregoing shall not be deemed to include acts of medical diagnosis or prescription of medical therapeutic or corrective measures, except as may be authorized by rules and regulations ...

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