Evidence

July 23rd, 2019 by Rieders Travis in Evidence

EVIDENCE-EXPERTS-LAYMAN'S KNOWLEDGE -Getting v. Mark Sales and Leasing, No. 18-1228 (C.P. Lycoming June 3, 2020) Linhardt, J.  This opinion by Judge Linhardt carefully spells out when, in connection with a riding mower, an expert report usurps the role of a layperson.  The court determined that riding a lawnmower in a negligent matter by failing to heed warning labels and failing to determine the slope of one’s lawn is not beyond the ken of an average layperson.  The expert may testify that turning on the slope was dangerous and caused the accident, but whether it was negligent for the rider to fail to read the warnings is again within the ken of an average person.  Alleged negligence in failing to heed warning labels and failing to determine slope of lawn is not a suitable subject for expert testimony. EVIDENCE-RES IPSA LOQUITUR-SURGICAL INCIDENT Snyder v. Scranton Hospital Company, No. 19 CV 83 (C.P. Lackawanna August 28, 2020) Nealon, J.  A podiatrist, who underwent an outpatient, right eardrum repair procedure under general anesthesia and awoke with left arm and shoulder pain that his treating physicians subsequently diagnosed as severe left ulnar never neuropathy…

Evidence Scientific Testimony: Long Term Exposure to PesticidesFrye

June 21st, 2018 by Rieders Travis in Evidence

Long Term Exposure to Pesticides and the Death of Golf Course Groundskeeper for 40 Years Walsh v. BASF Corporation, 2018 Pa. Super. LEXIS 686 (June 20, 2018) Bowes, J.  Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased, appeals from the October 14, 2016 order granting summary judgment in favor of Appellees, and challenges the propriety of the trial court’s order barring his experts from testifying pursuant to the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since we conclude that the learned trial court erred in the manner in which it conducted the Frye inquiry herein, we reverse the grant of summary judgment, vacate the order precluding Mr. Walsh’s experts from testifying, and remand for further proceedings. Decedent, Thomas J. Walsh, was employed for almost forty years as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. During his employment, he frequently and regularly applied insecticides and fungicides on the golf courses. Mr. Walsh died on February 2, 2009. His treating oncologist, James Rossetti, D.O., later opined that Mr. Walsh’s extensive chemical exposure, together with “the…

EVIDENCE-EXPERTS-CROSS-EXAMINATION-PRESENT SENSE IMPRESSION

November 28th, 2017 by Rieders Travis in Evidence

Lattaker v. Magee Women’s Hospital of UPMC, No. GD-13-021120 (C.P. Allegheny July 5, 2016) Wettick, J.  This is another Judge Wettick opinion in which he steps back on his controversial opinion in McLane v. Valley Medical Facilities, Inc., 157 P.L.J. 252 (C.P. Allegheny Cnty. 2009).  In this opinion, Judge Wettick says that nothing in the claim suggests that a party may object to the testimony of the treating physician or any other witness who testifies that a review of a slide, chart, report, x-ray and the like may be helpful in refreshing the witness’s memory.  Defendants in Lattaker objected to questions directed to treating physician concerning what was shown on a fetal monitoring strip.  If a physician testifies that he or she would be able to recreate the incident if he or she could see a fetal monitoring strip, this discovery is clearly permitted.  In Lattaker, the defendant treating physician testified that if he looked at the fetal monitoring strip he would be able to testify minute-by-minute as to what he did, when he did it, and why he did it.  However, defendant’s counsel advised the witness not to answer…

EVIDENCE-DEAD MAN’S STATUTE-NEGLIGENCE CASE

April 5th, 2017 by Rieders Travis in Evidence

Davis v. Byron Wright, 2017 Pa. Super. LEXIS 130; 2017 PA Super. 48 (February 27, 2017) Stevens, P.J.E. The lower court properly ruled as a matter of law that there was no waiver of the protection of the Dead Man’s Statute.  Therefore, surviving adverse parties were not competent to testify at trial regarding the circumstances surrounding the motor vehicle accident in question.  Appellant’s own testimony is barred under the Dead Man’s Statute.  They have not set forth other competent evidence of fault in support of the negligence claims.  Accordingly, the trial court properly determined there were no genuine issues of material fact.  Appellants failed to produce evidence to establish a prima facie case of negligence.  Therefore, appellee was entitled to entry of summary judgment.

PROCEDURE-PRECOMPLAINT DISCOVERY-PROTECTIVE ORDER

March 29th, 2016 by Rieders Travis in Evidence

The Procedure for Precomplaint Discovery and Protective Orders Tullytown Borough v. Armstrong, 129 A.3d 619 (Pa. Cmwlth. 2015).  Tullytown Borough appealed from an order of the Court of Common Pleas denying the Borough's motion for protective order.  The Commonwealth Court affirmed.  The plaintiffs filed a writ of summons commencing a civil rights action under § 1983.  The plaintiffs sought to depose nine borough employees.  The individuals were identified but failed to give the reasons for the depositions.  The borough filed a motion for protective order.  Precomplaint discovery was requested pursuant to Pennsylvania Rule of Civil Procedure 4003.8 to obtain material for a complaint.  The memorandum of law in support of pre-complaint discovery request gave the reasons for the discovery.  The trial court denied the borough's motion for protective order.  The court relied upon Pennsylvania Rule of Civil Procedure 4003.8, which permits precomplaint discovery under the circumstances therein described.  The trial court may, but is not required to, direct a party to state how discovery will advance preparation of the complaint.  There was no abuse of discretion.