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 any questions.

The court raised the specter that its rule against asking witnesses concerning their “present sense” would still apply if the witness said he was not going to be an expert at trial or if his counsel so stated.  In this opinion, Judge Wettick discussed Karim v. Reedy, No. 11-CV-4598, 2016 WL 111324 (C.P. Lackawanna Cnty., January 11, 2016).  Judge Wettick said that both his opinion in McLane and Judge Nealon’s in Karim permit “robust discovery relevant to what the witness remembers.”