Defense Digest

WHEN OPPORTUNITY KNOCKS . . . OPENING THE DOOR TO PREVIOUSLY EXCLUDED EVIDENCE

By David A. Williams, Esq.*

A recent case by the Pennsylvania Superior Court has provided some guidance on three issues which often occur during the course of a trial. The first is the extent, if any, to which evidence which was previously ruled inadmissible may become admissible by opposing counsel's "opening of the door." The second issue addressed by the court is whether the plaintiff's expert could be cross-examined with regard to statements made in his report critical of a settling defendant. The third issue is the extent to which an expert may attempt to bolster his own testimony by relying upon another, non-testifying witness.

The Superior Court weighed in on these issues, holding that if opposing counsel opens the door to evidence which was previously ruled inadmissible, it may become admissible for purposes of impeachment. The court also upheld its long-standing position that an expert witness may not bolster his credibility by relying on records of a non-testifying expert. In a related ruling, the Superior Court upheld the trial court's decision to preclude evidence of the plaintiff's receipt of workers' compensation benefits. The court reasoned that since the plaintiff was not seeking reimbursement for any medical or wage loss benefits from the pre-existing injury, evidence of those benefits was irrelevant and inadmissible.

Caturick v. St. Francis Medical Center, 2003 Pa. Super. LEXIS 494 (Pa. Super. 2003), involved claims of medical malpractice by the plaintiff against the defendant medical center, its second-year resident, and a radiology group for improperly performing spine surgery to remove a tumor. The plaintiff alleged that during a 1990 spinal surgery, the second-year resident employed by the medical center marked the wrong vertebrae levels prior to the surgery. As a result, the surgeon performed a total of four laminectomies when only two of these procedures were required to remove the spine tumor. As a result of these four laminectomies, the plaintiff alleged that he developed thoracic kyphosis, or curvature of the spine.

Prior to the original trial date, the defendants moved for a nonsuit on the grounds that there was insufficient evidence to prove that the laminectomies were the proximate cause of the plaintiff's kyphosis. The trial judge's decision to grant the nonsuit was sustained as to the defendant surgeon, but reversed as to the medical center, its resident, and the radiological group. The case was remanded for trial.

Prior to trial, the plaintiff filed a Motion in Limine seeking to preclude evidence of his significant history of "physical altercations," including an altercation with a police officer, a bar room brawl, and at least two other physical altercations. The trial judge granted the plaintiff's motion on the grounds that the probative value of the physical altercations was outweighed by the prejudicial effect it would have on the plaintiff. The defendants' opposition to the plaintiff's motion was based upon their expert's opinion that these physical altercations certainly contributed to the plaintiff's severe back pain. While the trial court noted that the evidence of the altercations might be relevant to the plaintiff's complaints of pain after the 1990 surgery, the motion was granted since the Judge did not believe that the defendants' expert could unequivocally testify that the altercations contributed to the plaintiff's kyphosis, and that, therefore, the prejudicial impact outweighed the probative value of this evidence.

On the fourth day of trial, however, plaintiff's counsel presented the testimony of the plaintiff's dutiful Aunt Rose. She testified as to the plaintiff's physical and psychological condition, testifying that Mr. Caturick "could not function," that he was afraid of and avoided any type of altercations for fear of hurting his back, and that he lived in fear. Based upon this testimony, the defendants argued that the issue of the physical altercations was now admissible since plaintiff's counsel had "opened the door," and the defendants should be permitted to cross-examine the plaintiff's aunt with regard to her testimony concerning her nephew's physical and psychological condition. Trial court refused to reverse its prior ruling.

On appeal, the Superior Court found that, while the trial court's decision to grant the initial Motion in Limine to preclude the evidence of physical altercations was proper, its subsequent ruling barring the defendants from referring to the altercations on cross-examination of the defendant's aunt was an abuse of discretion. The court noted that the jury was permitted to hear testimony from the aunt, which gave the false impression that the plaintiff was in constant fear for his safety, and the defendants should have been permitted to cross-examine the aunt with regard to her knowledge of the physical altercations. The Superior Court noted that this false impression may well have influenced the damage award and, therefore, granted a new trial.

The Superior Court next addressed the defendants' contention that the trial court erred in preventing them from confronting the plaintiff's expert with prior inconsistent statements in his expert report. These statements in the plaintiff's expert report dealt with the defendant surgeon, with whom the plaintiff had reached a settlement days before trial. The defendants maintained that they should have been permitted to cross-examine the plaintiff's expert with regard to statements made in his report to the effect that the surgeon was partly responsible for Mr. Caturick's injury. In sustaining the trial court's decision to preclude this avenue of cross-examination of the plaintiff's expert, the court noted that the defendants had agreed to the dismissal of the defendant surgeon (over the plaintiff's objection) based upon the defendants' affirmative representations to the court that they would not be presenting any evidence critical of the settling surgeon. Based upon these assurances, the Supreme Court held that the trial judge acted appropriately in determining that any cross-examination of the plaintiff's expert as to the settling surgeon would have been improper.

The final issue addressed by the Superior Court was whether the trial court erred in permitting the plaintiff's expert to testify, on re-direct examination, based in part upon the records of a non-testifying treating physician. The defendants argued that, since the plaintiff's expert did not rely upon the treating physician's records in rendering his opinion regarding the plaintiff's back condition, he should not be permitted to testify that the non-testifying treating physician had reached the same diagnosis as the plaintiff's expert. The Superior Court agreed, relying on a line of prior cases which have consistently held that an expert witness "cannot bolster his credibility by reading into the record the report of a non-testifying expert who has not been subjected to cross-examination." The case was remanded for a new trial where, presumably, Aunt Rose will not be testifying this time around.

While the numerous holdings in this decision are indeed diverse, they provide guidance on a number of issues which frequently come up during the course of trial.

* Dave is a shareholder in our Bethlehem, PA office. He can be reached at (484) 895-2320 or at dwilliams@mdwcg.com.