Evidence

July 23rd, 2019 by Rieders Travis in Evidence

EVIDENCE-PRIVILEGE-ATTORNEY CIENT-MEDICAL MALPRACTICE-ANNOTATION ON MEDICAL RECORDS Ford-Bey v. Professional Anesthesia Services of North America, 2020 Pa. Super. LEXIS 143 (February 20, 2020) Bowes, J.  Client annotated medical records with his notes.  It was not done at the direction of the attorney. The court said it was not attorney-client privilege and had to be turned over.  The Superior Court found no error of law or abuse of discretion on the part of the trial court.  The client failed timely to satisfy the element requiring proof that his notes were communicated or intended to be communicated to his attorney or reflected communications from his attorney.  The requirements were just not satisfied. EVIDENCE-EXPERTS-REASONABLE DEGREE OF MEDICAL CERTAINTY This case raised an issue which often comes up and that is whether a doctor testifies to a reasonable degree of medical certainty. The court went through his testimony in great detail.  A medical opinion only needs demonstrate with a reasonable degree of medical certainty that Defendant’s conduct increased the risk of harm sustained.  It is then up to a jury to determine substantial factor.  This case involved DVT in patients who are immobile after surgery. …

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.