author: TERESHKO, J.,

text:
    Weiner v. Fisher

      Glenn C. McCarthy, for appellants.

      Charles Fitzpatrick III, for appellees.
    June 11, 2004—
   TERESHKO, J.,

PROCEDURAL HISTORY

This appeal by plaintiffs, Shirley Weiner as executrix of the estate of Leon Weiner and Shirley Weiner individually, arose as a result of this court granting defendant’s oral motion in limine to preclude plaintiffs’ expert Dr. William Bisordi and the court’s granting of defendant’s oral motion for compulsory nonsuit thereafter.

FACTUAL BACKGROUND

In March of 1990, Dr. Leon Weiner visited Dr. Robert Fisher because he was concerned that he was a high risk for stomach cancer and was experiencing some hoarseness in his throat, along with some esophageal problems. At the time of the visit, Dr. Weiner was a 64-year-old physician who was partially retired from his practice in gerontology, which is the care for the elderly. Dr. Fisher is a professor of medicine at Temple University and the chief of the gastroenterology division. Dr. Fisher specializes in esophageal diseases. On Dr. Weiner’s first visit Dr. Fisher made extensive notes, including that Dr. Weiner had a family history of gastrointestinal malignancy. (N.T. dated 3/3/03 p. 34 a.m. session.) After this visit Dr. Fisher ordered a series of tests to establish whether Dr. Weiner had intestinal metaplasia and atrophic gastritis, which is evidence and support of pemicious anemia. (N.T. dated 3/3/03 p. 48 a.m. session.) The tests included an endoscopy with six biopsies performed, a colonoscopy and an abdominal ultrasound. (N.T. dated 3/3/03 pp. 14-15 a.m. session.) In addition, Dr. Fisher requested a Schilling’s test, the purpose of which was to confirm a diagnosis of pernicious anemia. (N.T. dated 3/3/03 pp. 14-15 a.m. session.) After these series of tests were performed, Dr. Fisher confirmed that Dr. Weiner had pernicious anemia, intestinal metaplasia, and atrophic gastritis. At that time Dr. Fisher met with Dr. Weiner and spoke to him about returning in four or five years for follow-up, but emphasized that he could return at any time if he had any symptoms, or needed to be seen sooner. (N.T. dated 3/3/03 p. 23 a.m. session.)

In May 1994, Dr. Weiner returned to Dr. Fisher with complaints of nausea and vomiting, which is synonymous with upper gastrointestinal complications. Dr. Fisher subsequently ordered an upper endoscope to see if there were any lesions. The upper endoscopy did not reveal any suspicious findings, which would require a biopsy to determine whether Dr. Weiner had cancer or not. Dr. Fisher again made extensive notes to Dr. Weiner’s medical file and spent approximately 45 minutes with Dr. Weiner discussing a care plan. Dr. Fisher explained that Dr. Weiner did not have to return for four to five years, however Dr. Weiner should come back any time he felt he needed to.

In June of 1998, Dr. Weiner made his last visit to Dr. Fisher. Dr. Fisher stated that Dr. Weiner presented with less upper gastrointestinal symptoms in 1998 than he had in either 1990 or 1994. (N.T. dated 3/3/03 pp. 50-51 a.m. session.) Conversely, Dr. Weiner complained of lower gastrointestinal complications, which included change in bowel habits. Dr. Fisher ordered that a colonoscopy be performed. Because of medical testing in conjunction with subsequent fainting spells and Parkinson’s disease, Dr. Weiner had to postpone his colonoscopy until December 10, 1998. The colonoscopy revealed some diverticulosis, but was otherwise normal. (Complaint dated 2/21/01 p. 3, ¶10.)

Approximately three weeks after his colonoscopy, Dr. Weiner went to see an ophthalmologist in Miami, Florida, about his eyesight. His ophthalmologist noticed an abnormality in Dr. Weiner’s blood work evidencing anemia and low hemoglobin and began to question Dr. Weiner about his medical history. (N.T. dated 3/3/03 p. 13 a.m. session.) Upon hearing Dr. Weiner’s family history of gastrointestinal cancer, the ophthalmologist said he wanted Dr. Weiner to see another gastroenterologist, Dr. Marc Carp, located in Miami. (Complaint dated 2/ 21/01 p. 3, ¶11.)

The next week Dr. Carp performed an endoscope with biopsies and diagnosed Dr. Weiner with gastric cancer. On January 13, 1999, Dr. Weiner underwent a total gastrectomy at the hospital of the University of Pennsylvania. (Complaint dated 2/21/01 p. 4, ¶12.) Thereafter, Dr. Weiner continued to receive treatment of the gastric cancer for over one year until his death on February 7,2000. Dr. Weiner was 74 years old at the time of his death.

On February 21, 2001, Shirley Weiner filed a complaint as executrix of the estate of Leon J. Weiner and in her own right (plaintiffs) against Dr. Robert Fisher M.D. (defendant). The plaintiffs alleged in their complaint that Dr. Fisher failed to properly evaluate, diagnose, monitor and treat Dr. Weiner’s gastrointestinal cancer. Trial commenced in this case on March 3, 2003. During trial, the court found that plaintiffs’ expert, Dr. William Bisordi, was not qualified as an expert in gastroenterology and, therefore, was prohibited from testifying as to the standard of care in gastrointestinal endoscopy. As a result, the court granted defendant’s oral motion for nonsuit on March 3, 2003.

Plaintiffs have since filed their notice of appeal and submitted their 1925 statement accordingly.

The issues before this court are as follows:

(1) Whether the trial court committed an error of law or abused its discretion in determining Dr. Bisordi was not qualified as an expert medical witness under section 512 of the MCare Act because he was not engaged in or retired from actual clinical practice or teaching within five years of his testimony.

(2) Whether section 512 of the MCare Act is unconstitutional because it violates separation of powers, the equal protection clause and the due process clause of the United States and Pennsylvania Constitutions.

LEGAL ANALYSIS

I. Expert Qualifications

At the time of trial the plaintiffs called Dr. Bisordi as an expert witness. The plaintiffs contend that their medical expert, Dr. Bisordi, was qualified to give an expert opinion as to the standard of care in gastroenterology and that Dr. Bisordi would have testified Dr. Fisher departed from the standard of care by not ordering biopsies after Dr. Weiner’s endoscopy in 1994. The trial court precluded Dr. Bisordi from testifying as an expert because he did not satisfy section 512(b)(2) of the MCare Act. Dr. Bisordi had not actively performed endoscopies since 1995, nor has he taught the principles of endoscopy within the requisite five years from the time of trial. (N.T. dated 3/3/03 pp. 12, 16-17, p.m. session.)

“Whether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court.” Kovalev v. Sowell, 839 A.2d 359, 362 (Pa. Super. 2003). The Pennsylvania Superior Court reviews challenges to a trial court’s qualification of an expert witness under an “abuse of discretion” standard. Reading Radio Inc. v. Fink, 833 A.2d 199 (Pa. Super. 2003) (citing Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995)).

The applicable statutory law for determining the qualifications of a medical expert is the Medical Care Availability and Reduction of Error Act, also known as the MCare Act (40 P.S. §1303.512), which addresses the matter of expert qualifications as follows:

“(a) General rule. No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
“(b) Medical testimony. An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
“(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
“(2) Be engaged in or retired within the previous five years from active clinical practice or teaching, (emphasis added)
“Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.
“(c) Standard of care. In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
“(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
“(d) Care outside specialty. A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that
“(1) The expert is trained in the diagnosis or treatment of the condition, as applicable; and
“(2) The defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.
“(e) Otherwise adequate training, experience and knowledge. A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.” (emphasis added)

Despite the lack of any mention in section 512(b)(2) itself, plaintiffs argue that in order for an expert to be qualified under section 512(b)(2) of the MCare Act, he or she must have been either teaching in the field or actively practicing within five years from the time of the alleged negligent conduct, (emphasis added) However, according to the plain meaning of the statute, qualification under section 512(b)(2) requires the expert to have taught or actively practiced medicine in the specialized area which he is going to testify within five years from the date of trial testimony.

A. Statutory Construction — Plain Meaning

We begin our analysis by looking at the plain meaning of section 512(b) of the MCare Act for statutory interpretation.

One of the reasons the General Assembly passed the MCare Act was to limit the admissibility of expert testimony in medical malpractice cases. Gartland v. Rosenthal, 2004 WL 869583, *3 (Pa. Super. 2004).

When interpreting a statute, the court must begin with the plain meaning of the language used in the statute. Ludmer v. Nernberg, 699 A.2d 764, 765 (Pa. Super. 1997). Our canons of statutory interpretation instruct that the plain words of a statute cannot be disregarded where the language is free and clear from ambiguity. Price v. Pennsylvania Property and Casualty Insurance Guaranty Association, 795 A. 2d 407, 412 (Pa. Super. 2002), appeal denied, 573 Pa. 698, 825 A.2d 1262 (2003); 1 Pa.C.S. § 1921(b). When a statute’s meaning is plain, there is no occasion to further resort to rules of statutory interpretation when doing so would alter the plain meaning of the statute. Price, 795 A.2d at 412. Thus, the plain language of a statute is the best indication of legislative intent. Commonwealth v. Gilmour Manufacturing Co., 573 Pa. 143, 822 A.2d 676 (2003).

In addition, any words having a precise and well-settled legal meaning must be given that meaning when they appear in statutes unless there is a clear expression of legislative intent to the contrary. McGinness Unemployment Compensation Case, 177 Pa. Super. 104, 110 A.2d 918 (1955).

According to 40 P.S. §1303.512(b), which is titled “Medical testimony, ” An expert “testifying” on a medical matter must: (1) possess an unrestricted physician’s license to practice medicine in any state; and (2) be engaged in or retired within the previous five years from active clinical practice or teaching.

It should be further noted that in construing statutory language, “[wjords and phrases shall be construed according to rules of grammar and according to their common and approved usage....” Bowser v. Blom, 569 Pa. 609, 617, 807 A.2d 830, 835 (2002); 1 Pa.C.S. §1903.

In construing plain meaning of the statute we must first begin with the term “Medical testimony” in the title of section 512(b). The usage of the term “medical testimony” indicates section 512(b) encompasses requirements which must be satisfied while the expert is giving his medical testimony and not prior thereto. Furthermore, the introductory language of section 512(b) which reads “an expert ‘testifying’ on a medical matter...” illustrates, according to its proper grammar usage, that the expert must satisfy both subsections of section 512(b) at the time he is presently testifying in court. Since the plain meaning of the title and language section 512(b) unambiguously requires experts to be practicing or teaching in the specialized area within five years from the date his or her medical testimony is given, the court’s need to explore the legislative history or add meaning to the statute becomes unnecessary and, if undertaken, would violate statutory and common-law prohibitions against the same.

This court also addressed the issue whether Dr. Bisordi was eligible for a waiver of the requirements of section 512(b) if according to section 512(e) Dr. Bisordi: “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.” However, the court reasoned that, although Dr. Bisordi was actively teaching, he was not teaching in the specialized field of endoscopy which is the specialty he was being offered to testify in. (N.T. dated 3/3/03 p. 12 p.m. session.) For these reasons Dr. Bisordi would not qualify for a waiver of the requirements of section 512(b).

The plaintiffs argue the same position as is stated in Spotts v. Small, 61 D.&C.4th 225 (Lancaster Cty. 2003), that in order for an expert to be qualified under section 512(b) he or she must have been either teaching in the field or actively practicing within five years from the time of the alleged negligent conduct.

The Spotts court contends in their legislative intent argument that the General Assembly’s failure to use the phrase “as of the time of the... breach of the standard of care” in section 512(b)(2) as it did in section 512(c)(1) which addresses the same subject matter does not prohibit the court from construing the two sections consistently. Spotts, 61 D.&C.4th at 236. This position appears to be inconsistent with Pennsylvania law.

In determining legislative intent, sections of a statute must be read together and construed with reference to the entire statute. 1 Pa.C.S. §1921(a). Where the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded. Fonner v. Shandon Inc., 555 Pa. 370, 378, 724 A.2d 903, 907 (1999). A change of language in separate provisions of a statute is prima facie evidence of a change of intent. Walker v. Roney, 407 Pa. Super. 620, 622-23, 595 A.2d 1318, 1319 (1991). Where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show a different legislative intent. Fonner, 555 Pa. at 378-79, 724 A.2d at 907 (citing Commonwealth v. Bigelow, 484 Pa. 476, 484, 399 A.2d 392, 395 (1979)).

In Fonner, our Supreme Court found that the General Assembly included the specific language of the “unless” clause in one section of the Workers’ Compensation Act (section 302(b)) but did not include it in another section of the Act (section 203). The court held that in accordance with the rules of statutory interpretation, the “unless” clause of section 302(b) cannot be implied to amend section 203. Furthermore, the fact that the General Assembly omitted the “unless” clause from section 203 shows that the General Assembly had a different intent when drafting section 203 (extending immunity to statutory employer from negligence cases) than it did when drafting section 302(b) (providing security for payment of benefits to injured employee).

In this case, section 512(b) and section 512(c) are likewise similar provisions of the MCare Act because they both deal with testimony of a medical expert. However, the use of the phrase “as of the time of the breach of the standard of care” in section 512(c)(1) indicates that the General Assembly was mindful of this phrase in constructing section 512 and intended a different meaning by not including this phrase in section 512(b). According to the above-mentioned case law, absence of the phrase from section 512(b) is prima facie evidence of a change in legislative intent and is therefore not indicative of the legislature’s intent to construe the two sections consistently.

In addition to discussing the abundant case law supporting this court’s position that the plain meaning of the statute governs the interpretation of section 512 of the MCare Act, we will also address this issue from a policy standpoint.

B. Policy Analysis

The qualification of an expert witness during trial allows the trial court to examine the specific training and experience of a potential expert witness on the record so that the trial court may ascertain whether that witness qualifies as an expert in the field at issue. Rittenhouse v. Hanks, 777 A.2d 1113 (Pa. Super. 2001). Expert qualification during trial also provides the jury with a basis on which to determine the expert’s credibility. Rauch v. Mike-Mayer, 783 A.2d 815, 823 n.6 (Pa. Super. 2001). In Rauch, the court implicitly reasoned that the appropriate place for an expert to be evaluated for his training and experience would be during trial. Id. The issue of expert qualification is one of credibility and it would be particularly arduous for a jury to scrutinize the credibility of an expert whose qualifications are something far in the past.

Thus, in construing the terms of section 512(b) using the plain meaning, along with taking into consideration the policy matters, the trial court was doing no more than following the plain language of the legislature under section 512(b), which requires the expert to have taught or actively practiced medicine in the specialized area which he is going to testify within five years from the date of trial. Additionally, the fact that Dr. Bisordi was not actively practicing or teaching endoscopy since 1995 and given that Dr. Weiner’s trial did not take place until June 2003 indicates that the trial court was keeping faith with the plain meaning of the statute in precluding Dr. Bisordi’s testimony and report.

II. Separation of Powers

In their post-trial motions and 1925(b) statement, plaintiffs challenge the constitutionality of section 512 of the MCare Act. Their position is that it usurps the Supreme Court’s authority to govern procedure in the courts of the Commonwealth in violation of Article V, Section 10 of the Pennsylvania Constitution.

Article 10(c) of the Pennsylvania Constitution provides:

“(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, .... All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.”

Our analysis begins with the strong presumption of constitutionality and the heavy burden of persuasion upon one who challenges the constitutionality of an Act of the General Assembly. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). Accordingly, legislation will not be declared unconstitutional unless it “clearly, palpably and plainly violates the constitution.” Snider, 496 Pa. at 166, 436 A.2d at 596. (emphasis in original) Consequently, all doubts relating to the constitutionality of such an enactment must be resolved in its favor. Edmonds by James v. Western Pennsylvania Hospital Radiology Associates, 414 Pa. Super. 567, 574, 607 A.2d 1083, 1087 (1992). Thus, it is clear that a party raising a constitutional challenge has a heavy burden of rebutting the presumption of constitutionality and demonstrating that the statute clearly, plainly, and palpably violates constitutional precepts. Edmonds by James, 414 Pa. Super. at 574, 607 A.2d at 1087.

The legislature retains the right to prescribe new rules of evidence provided they do not deprive a person of his or her constitutional rights. Dranzo v. Winterhalter, 395 Pa. Super. 578, 589, 577 A.2d 1349, 1354 (1990). The Pennsylvania Supreme Court has, in the past, recognized the right of the legislature to create or alter rules of evidence. Rich Hill Coal Company v. Bashore, 334 Pa. 449, 485,7 A.2d 302, 319 (1939). This right of the legislature is still recognized by our Supreme Court today. Commonwealth v. Newman, 534 Pa. 424, 429, 633 A.2d 1069, 1071 (1993). Such legislative action does not violate separation of powers between the legislative and judicial branches. Id.

This court is mindful of the case of McGlaughlin v. Gettysburg Hospital, 63 D.&C.4th 504 (Adams Cty. 2003), and adopts the rationale for upholding the constitutionality of section 512 of the MCare Act. As stated in McGlaughlin, section 512 of the MCare Act addresses the competency of an expert to offer an expert medical opinion in a medical professional liability action. The court in McGlaughlin stated, “[o]ne need look no further than the Pennsylvania Rules of Evidence... to conclude that this section of MCare is a rule of evidence.” Id. at 511. While Pennsylvania Rule of Evidence 601 relates to the competency of a witness, Pa.R.E. 702 specifically addresses expert witness testimony. Id. Rule 601 states that “[ejvery person is competent to be a witness except as otherwise provided by statute ....” Id. at 512. (emphasis in original) Thus, the very rule the Supreme Court adopted under the authority of Article V, Section 10(c), of the Pennsylvania Constitution recognizes the legislature’s authority to regulate in this area. Id.

It should also be noted that section 512 does not conflict with Pa.R.E. 702 in any manner which would distinguish its application as a rule of evidence for purposes of constitutional analysis. Pa.R.E. 702 does not change the Pennsylvania rule for qualifying a witness to testify as an expert. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995). Rule 702 provides that “a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” It is clear that section 512 simply defines the level of “knowledge, skill, experience and training” necessary to qualify a witness as an expert in medical malpractice cases.

Accordingly we conclude that 40 P.S. §1303.512 of the MCare Act is not an unconstitutional infringement upon the rule-making authority of the Pennsylvania Supreme Court and therefore does riot violate the separation of powers under the Pennsylvania Constitution Article V, Section 10.

III. Equal Protection & Due Process Analysis

Plaintiffs argue that the provisions of section 512 of the MCare Act violate the equal protection and substantive due process laws guaranteed under the Fourteenth Amendment of the U.S. Constitution and the Pennsylvania Constitution. Plaintiffs’ position is that section 512 imposes certain requirements for experts in medical malpractice actions that are arguably different than those in other types of actions because the occupation and the profession of the defendants are different; therefore it violates the state and federal equal protection laws.

As in our separation of powers analysis, doubts regarding the constitutionality of an enactment must be resolved in favor of constitutional validity and parties challenging the constitutionality of a law bear the burden of rebutting this presumption by “clear, palpable and plain demonstration that the statute violates a constitutional provision.” The analysis of equal protection guarantees under the U.S. and Pennsylvania constitutions are guided by the same principles of interpretation. Lyons v. W.C.A.B. (Pittsburgh Steelers Sports Inc.), 803 A.2d 857, 860 (Pa. Commw. 2002).

Substantive due process protections afforded under both the state and federal constitutions are analyzed the same and, thus, are coextensive. Griffin v. SEPTA, 757 A.2d 448,452 (Pa. Commw. 2000). The analysis of substantive due process claim is the same analysis as performed under equal protection claim. Griffin, 757 A.2d at 452. The standards for evaluating an equal protection challenge to a statute were set forth in the case of Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995):

“The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly____However, it does not require that all persons under all circumstances enjoy identical protection under the law. . . . The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment,... and does not require equal treatment of people having different needs____The prohibition against treating people differently under the law does not preclude the Commonwealth from resorting to legislative classifications,... provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation.... In other words, a classification must rest upon some ground of difference which justifies the classification and has a fair and substantial relationship to the object of the legislation.” Curtis, 524 Pa. at 254-55, 666 A.2d at 267-68.

The first step in an equal protection analysis is to determine which of three types of scrutiny the reviewing court should apply to the challenged classification: strict scrutiny, intermediate scrutiny or rational basis scrutiny. The Supreme Court has set forth these degrees of scrutiny as follows: “(1) classifications which implicate a ‘suspect’ class or a fundamental right; (2) classifications implicating an ‘important’ though not fundamental right or a ‘sensitive’ classification; and (3) classifications which involve none of these. . . . Should the statutory classification in question fall into the first category, the statute is strictly construed in light of a ‘compelling’ governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an ‘important’ governmental purpose; and if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.” Smith v. City of Philadelphia, 512 Pa. 129,138, 516 A.2d 306, 311 (1986). (citation omitted) The rational relationship test will apply because medical physicians are neither a suspect class nor a sensitive classification, and the alleged violation of equal protection here (differential treatment based on occupation and profession of physician) does not implicate a fundamentally protected right, nor does it impose on a class of citizens historically victimized by discrimination. Furthermore, statutes that affect only the economic rights of recovery in a tort action were not considered fundamental rights and were subject to the rational relationship test if the law impacted on the economic right to full compensation. Lyles v. City of Philadelphia, 88 Pa. Commw. 509, 516, 490 A.2d 936, 941 (1985).

In applying this test, the court must determine if the challenged statute seeks to promote any legitimate state interest and, if so, whether the statute is reasonably calculated to accomplishing that state interest. Curtis v. Kline, 524 Pa. at 257, 666 A.2d at 269.

The purpose of the MCare Act is set forth in 40 PS. §1303.102:

“The General Assembly finds and declares as follows:
“(1) It is the purpose of this Act to ensure that medical care is available in this Commonwealth through a comprehensive and high-quality health care system.
“(2) Access to a full spectrum of hospital services and to highly trained physicians in all specialties must be available across this Commonwealth.
“(3) To maintain this system, medical professional liability insurance has to be obtainable at an affordable and reasonable cost in every geographic region of this Commonwealth.
“(4) A person who has sustained injury or death as a result of medical negligence by a health care provider must be afforded a prompt determination and fair compensation.
“(5) Every effort must be made to reduce and eliminate medical errors by identifying problems and implementing solutions that promote patient safety.
“(6) Recognition and furtherance of all of these elements is essential to the public health, safety and welfare of all the citizens of Pennsylvania.”

The MCare Act also contains a statement policy (section 1303.502) applicable to the chapter dealing with medical professional liability. The chapter titled “Declaration of policy” reads:

“The General Assembly finds and declares that it is the purpose of this chapter to ensure a fair and legal process and reasonable compensation for persons injured due to medical negligence in this Commonwealth. Ensuring the future availability of access to quality health care is a fundamental responsibility that the General Assembly must fulfill as a promise to our children, our parents and our grandparents.”

A review of these two sections as well as the various provisions of chapter five of the MCare Act demonstrates that the purpose of this legislation was to strike a balance between the right of a person injured by a medical negligence to recover just compensation and the need to make quality health care available in this Commonwealth by keeping malpractice insurance available at less exorbitant costs to physicians and hospitals. The MCare Act was passed in response to the rising costs and decreasing availability of malpractice insurance which: (1) threatened to cause an exodus of practicing Pennsylvania physicians and, (2) deterred other physicians from establishing a practice in Pennsylvania.

As part of this response, the MCare Act included chapter five. This part of the law was designed to place reasonable limits on damages recoverable and, in the case of section 512, to set forth qualifications for expert witnesses testifying against physicians, particularly in the area of standard of care.

This provision is rationally related to the purposes of the MCare Act in making malpractice insurance rates lower so as to keep medical care available in the Commonwealth. It does not, as claimed by plaintiff, interfere with the process of ascertaining the truth. It improves this process by requiring that experts who testify against a physician on the crucial issues in medical liability cases are adequately qualified to do so. As a result, the requirements contained in section 512 are not unreasonable or arbitrary. They do not inhibit plaintiff from proving his case but simply require that his or her expert is actually qualified to give the opinion offered. By way of comparison, the courts have upheld much more stringent burdens on the right to recovery in the face of equal protection challenges. In Lyles v. City of Philadelphia, it was held that the statutory “caps” on the amount of damages recoverable against Commonwealth parties was rationally related to a legitimate state purpose and therefore constitutional. In Lyons v. W.C.A.B., an injured football player challenged provisions in the workers’ compensation law that had the effect of limiting the amount of compensation payable to athletes in certain professional sports but not others. The provision was upheld as a rational justifiable classification even though it treated professional athletes differently than other workers. InBerninger v. W.C.A.B. (East Hempfield Township), 761 A.2d 218 (Pa. Commw. 2000), the different classification for mental health injuries as opposed to physical injuries in the workers’ compensation law was likewise upheld against an equal protection challenge.

Thus, the provisions of section 512 of the MCare Act are rationally related to the legitimate governmental interest and constitutional under the circumstances.

CONCLUSION

In consideration of the analysis set forth above, this court believes that the defendants’ oral motion in limine and oral motion for compulsory nonsuit were properly granted and should be affirmed by the court above.

      . A change of normal tissue cells into an abnormal form in response to chronic stress or injury.

      . A long-term inflammation of the stomach, with the breakdown of the mucous membranes of the stomach.

      . A disorder with inadequate making of the blood cells caused by a lack of iron, folic acid, or vitamin B12 or other food disorders.

      . A procedure where a fiberoptic tube is placed down from the mouth through the esophagus and into the stomach where random samples of tissue cultures are taken.

      . An elongated flexible fiberoptic tube that permits visual examination of the colon.

      . A procedure where the percentage of radioactivity is measured in a person’s urine, the results of which are used in the diagnosis of pernicious anemia and other disorders of vitamin B12 metabolism.

      . A pouch-like bulging through the muscular layer of the colon without inflammation.

      . Dansby v. Thomas Jefferson University Hospital, 424 Pa. Super. 549, 553, 623 A.2d 816, 818 (1993).

      . James v. SEPTA, 505 Pa. 137, 142, 477 A.2d 1302, 1304 (1984).


source: Caselaw Access Project

author: PRATT, P.J.,

license: Public Domain

text:
    Hart v. State Farm Mutual Automobile Insurance Company

      C.P. of Lawrence County,
    no. 11154 of 1999, C.A.

      Dallas W. Hartman, for plaintiffs.

      Daniel L. Rivetti, for defendants.
    June 18, 2004
   PRATT, P.J.,

Defendants have filed a motion to amend order or to reconsider order, requesting that the court amend or reconsider its September 9,2003 order affirming its December 31, 2002 order and opinion disposing of the parties’ cross-motions for summary judgment.

Both parties requested summary judgment regarding Count II (breach of contract) of the plaintiffs’ complaint. The issue for the court’s disposition regarding the motions for summary judgment was the enforceability of the named driver exclusion in the insurance policy of plaintiff Cathy J. Hart, plaintiff Michael G. Hart’s spouse. Plaintiffs’ primary contention in seeking summary judgment was that defendant State Farm’s denial of under-insured motorist coverage to plaintiff Michael G. Hart based on the named driver exclusion was erroneous and contrary to Pennsylvania law, and that the named driver exclusion was invalid and unenforceable.

On December 31, 2002, this court issued and filed an order and opinion which held that a named driver exclusion authorized by the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1718(c), is only applicable to first-party benefits and not to uninsured motorist (UM) or underinsured motorist (UIM) benefits. The court further held that it is against Pennsylvania’s public policy for an insurance company to expand the scope of the named driver exclusion beyond the statutory authorization to deny all insurance coverages, including UM and UIM benefits. Such named driver exclusions, this court ruled, were invalid and unenforceable. As a result, the court concluded that the plaintiffs were entitled to summary judgment regarding Count II (breach of contract) of the plaintiffs’ complaint. The court adopted the approach of our sister state of Delaware in the absence of any Pennsylvania appellate court precedent available at that time.

The same day, December 31,2002, that this court filed its order and opinion, the Pennsylvania Supreme Court filed a decision stating the exact opposite, i.e., to the extent a named driver exclusion operates as a bar to UM/ UIM coverage, the result is consistent with public policy and consumer choice. Progressive Northern Insurance Co. v. Schneck, 572 Pa. 216, 223, 813 A.2d 828, 832 (2002). Prior to the ruling in Schneck, the law was not settled regarding named driver exclusions and UM/UIM coverage in Pennsylvania.

In response to Schneck, defendants then filed a motion to amend the December 31, 2002 order to include language, pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S. §702(b), which would allow them to seek a permissive appeal to the Superior Court. The court granted the motion on January 24,2003. On March 26, 2003, the Superior Court denied the permissive appeal.

Defendants then filed their first motion for reconsideration of the court’s December 31,2002 order and opinion, citing Schneck. The court, on May 20,2003, denied the motion for reconsideration, explaining that more than 30 days had elapsed since the December 31, 2002 order and, consequently, the court was precluded from reconsidering it under 42 Pa.C.S. §5505.

Thereafter, defendants filed a second motion for reconsideration of the December 31,2002 order and opinion. Both parties were directed, by order of court on June 25,2003, to submit briefs regarding the issue of whether Schneck should control the disposition of the named driver exclusion issue. Defendants’ brief was timely filed but misplaced by the prothonotary’s office and not docketed timely. As a result, the court did not consider defendants’ brief when it issued the order and opinion on September 9, 2003, affirming the order and opinion of December 31, 2002.

Parenthetically, in disposing of defendants’ instant motion, the court has reviewed defendants’ brief filed in support of their second motion for reconsideration.

Where an appellate decision announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal. Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

Schneck announced a new principle of law, that named driver exclusions barring UM/UIM coverage were not against public policy and would be enforced. Schneck at 223, 813 A.2d at 832. The decision was not specifically declared to be prospective. Thus, this court must follow Schneck. See Cabeza, supra.

Following the ruling in Schneck, the unambiguous language of the named driver exclusion in plaintiff Cathy J. Hart’s insurance policy specifically excludes coverage for claims arising while any motor vehicle is operated by plaintiff Michael G. Hart and is not against public policy. The named driver exclusion is, therefore, valid and enforceable.

The plaintiffs, in their motion for summary judgment, also claimed that the named driver exclusion was invalid because it was not properly executed or endorsed as required by plaintiff Cathy J. Hart’s insurance policy. The court did not address this issue in its December 31,2002 order and opinion, because the named driver exclusion was found to be invalid and unenforceable for the reasons specified above, and this finding was sufficient in disposing of both motions for summary judgment. However, this court, in its September 9, 2003 order of court, found this to be an alternative basis for affirming its December 31, 2002 order of court. Upon reconsideration, the court must consider this additional issue.

Plaintiffs’ insurance policy specifies that its terms may be changed only by an endorsement signed by an executive officer of the corporation. Defendants have filed of record the deposition of Walter R. Kropp, a State Farm underwriting operations supervisor, along with attached exhibits, in support of their motion for summary judgment. Attached to the Walter R. Kropp deposition, as an exhibit, is a blank driver exclusion endorsement signed by the president of State Farm that meets the requirements of the policy. But, none of the defendants retained a copy of the completed or executed driver exclusion endorsement. Allegedly, the only outstanding copy is the original that was forwarded to plaintiff Cathy J. Hart.

Kropp’s deposition, because of credibility and weight of the evidence issues, creates a question of fact about whether the driver exclusion endorsement was properly executed in accordance with the insurance policy. Thus, the court cannot determine as a matter of law that the driver exclusion endorsement, as part of plaintiff Cathy J. Hart’s insurance policy, was properly executed. Consequently, summary judgment would be inappropriate at this juncture.

Therefore, the decision of the court to grant summary judgment in favor of the plaintiffs with respect to Count II of their complaint, the breach of contract claim, must be vacated.

As with plaintiffs, defendants have also requested that the court grant summary judgment in their favor regarding Count II (breach of contract). Although Schneck requires that the court find the named driver exclusion valid and enforceable, in this case, as noted earlier, the court cannot rule as a matter of law that the named driver exclusion (driver’s exclusion endorsement) was properly executed based upon the existence of a question of fact regarding that issue. Resultantly, summary judgment for the defendants would also not be appropriate at this time.

Finally, defendants presented their motion to amend order or to reconsider order, referring to the September 9, 2003 order of court, despite this court’s stem admonishment, as part of the order, that any subsequent motions for reconsideration would be considered frivolous, dilatory, and vexatious, and subject to sanctions. However, after carefully reviewing defendant’s timely filed brief, the various orders of court entered in this case, and the holding of Schneck, the court shall refrain from imposing sanctions against defendants.

The court shall effectuate the conclusions of this opinion by separate order.

The court recognizes that this opinion and foregoing order involve a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal of the foregoing order pursuant to Pa.R.A.P. 1311(a) may materially advance the ultimate termination of this matter. Accordingly, under 42 Pa.C.S. §702(b), the court shall grant the parties permission to appeal the foregoing interlocutory order to the Superior Court.


author: NEALON, J.,

text:
    Campbell-Perfilio v. PennDOT

      C.P. of Lackawanna County,
    no. 96 CV 3784.

      James F. McBride, for plaintiff.

      James P. Kearney, for defendant PennDOT.

      Robertson B. Taylor, for defendant Yamaha Motor Corp. USA.

      Alan S. Gold, for defendant Lo-Jan Travel Center Inc.

      Debra P. Fourlas, for defendant Vance & Hines Racing.
    June 10, 2004
   NEALON, J.,

Two defendants in this products liability litigation have filed motions to preclude the testimony of the plaintiff’s experts on the grounds that it is based upon novel scientific evidence which is not generally accepted by the professional engineering community. The materials submitted for review under Pa.R.C.R 207.1(a) indicate that the relevant scientific community generally recognizes as acceptable the testing and methodology used by the plaintiff’s experts to formulate their opinions. Thus, the defense motions to bar the testimony of the plaintiff’s experts will be denied.

I. FACTUAL BACKGROUND

This wrongful death action arises out of a fatal motorcycle accident which occurred on August 6,1994, when the 20-year-old decedent, Christopher Perfilio, was operating a 1992 “Super Sport FZR 600” motorcycle on State Road 2010 (Dalton Road) in Overfield Township, Wyoming County. Perfilio’s motorcycle was manufactured by Yamaha Motor Corp. USA and equipped with an exhaust system that was designed and distributed by Vance & Hines Racing. The Vance and Hines exhaust system was promoted by Yamaha and installed on the Perfilio motorcycle by Lo-Jan Travel Center Inc. which was also the retail seller of the motorcycle. (Dkt. entry nos. 164 and 174, ¶¶1-3.)

Perfilio alleges that defects in the motorcycle’s exhaust system caused the engine to lose power and create increased drag on the rear wheel, thereby resulting in premature locking of the rear wheel and eventual loss of control at the time of the accident. In addition to products liability claims which have been asserted against Yamaha, Lo-Jan and Vance & Hines, Perfilio has advanced a claim against the Pennsylvania Department of Transportation for negligent design and maintenance of Dalton Road. (Id., no. 47.) Perfilio originally sued Lo-Jan’s principal, Ralph L. Parke, as well, but by order dated March 9, 2001, Judge Trish Corbett entered summary judgment in favor of Parke. (Id., no. 136.) Perfilio subsequently settled all claims against Vance & Hines pursuant to a joint tort-feasor release. (Id., nos. 113-14.)

Perfilio’s strict liability and negligence claims against Yamaha and Lo-Jan are predicated upon four expert reports which have been authored jointly by Charles Edwin Neu P.E., and Bayard T. McWilliams P.E., of Forensic Sciences Inc. According to their curriculum vitae which are attached to Perfilio’s submissions, Neu and McWilliams have bachelors degrees and masters degrees in metallurgical, mechanical and aeronautical engineering with technical and professional experience in vehicle and motorcycle accident reconstruction and the function of those vehicles’ component parts. (Id., exhibit F.) Perfilio’s experts have opined that, as a result of an exhaust defect, the motorcycle engine hesitated and caused the rear wheel to lock during braking and ultimately led to Perfilio’s loss of control at the time of his fatal accident. (Id., exhibits A-C, E.)

In their “preliminary report” dated February 20,1998, Neu and McWilliams itemize the reports, depositions, documents and photographs that they reviewed and confirm that Neu personally examined the subject motorcycle. (Id., exhibit A, p. 2.) Based upon their review of those materials and inspection of the motorcycle, they conclude that the Vance & Hines exhaust system which was installed by Lo-Jan caused the motorcycle to malfunction and “behave unpredictably during braking.” The initial expert report references the deposition of the decedent’s brother who testified that “[t]he engine stalled when started cold and ‘stuttered and almost stalled’ when operated in the speed range of 5,000 to 7,000 RPM.” The decedent reportedly returned the motorcycle to Lo-Jan on several occasions “in order to have the improper engine operation corrected,” but to no avail. Neu and McWilliams note that the motorcycle’s “sparkplugs had to be replaced because they were completely black” and state that “[t]his is a sign of a mixture problem.” They opine in their first report that as a result of this engine failure, the motorcycle’s rear wheel “can slow more quickly than expected or lock up prematurely” and “can cause the operator of the motorcycle to lose control.” (Id., p. 3.) Perfilio’s experts further conclude that “the improper operation of the engine was a substantial contributing factor in Christopher Perfilio’s loss of control of the motorcycle as he approached the bend in the road” and that “to a reasonable degree of engineering certainty the improper operation of the motorcycle engine after the installation of the Vance & Hines exhaust system was a substantial contributing factor in causing Christopher Perfilio’s accident and fatal injuries.” (Id., pp. 3-4.)

Two months later, Neu and McWilliams generated a second report discussing the conduct of Yamaha and Vance & Hines. Observing that “Lo-Jan failed to properly calibrate the fuel and air mixture required for the proper functioning of the Yamaha motorcycle,” they state “that Yamaha took no steps to determine whether Lo-Jan was qualified or capable of properly installing the Vance & Hines exhaust system with the Carburetor Jet Kit.” (Id., exhibit B, p. 1.) The two opine that Yamaha should not have provided a Vance & Hines exhaust system and jet kit option with the motorcycle “when it knew or should have known that Lo-Jan was unqualified or incapable of properly installing and calibrating the exhaust system.” (Id.) Neu and McWilliams remark that following the installation of the Vance & Hines exhaust system, “riders of the motorcycle experienced a serious lack of power and ‘bogging’ of the engine” and “[t]he engine also experienced unusual sparkplug fouling for such low mileage.” The experts reiterate that “the loss of power or stalling of the engine of a motorcycle such as occurred in this case can cause unexpected lock-up of the rear wheel during braking because of the increased drag on the wheel from the engine.” In support of this conclusion, they note that during the post-accident examination of the motorcycle, “the exhaust system revealed unusual corrosion and damage not associated with the accident.” (Id., p. 2.)

Following their review of three additional depositions, Neu and McWilliams prepared a third report on December 18, 1998. In this supplemental report, they reason:

“If satisfactory performance of the engine required the rider to take specific actions and precautions in the use of the choke and to always operate the motorcycle at a high speed, then it was incumbent upon Yamaha to provide instructions and precautions to the owners of the motorcycles they manufactured. There is no indication that Yamaha did so. Also, a motorcycle that requires constant high speed operation is not practical for use on public roads and should not be sold as such.” (Id., pp. 1-2.)

Lo-Jan and Yamaha have filed motions pursuant to Pa.R.C.P. 207.1 seeking to exclude the testimony of Neu and McWilliams on the grounds that they allegedly rely upon novel scientific evidence and principles which are not generally accepted by the relevant scientific community. Lo-Jan’s motion contends that “no scientific basis exists for the opinion of Neu and McWilliams” that an exhaust defect precipitated engine hesitation which caused the rear wheel to lock during braking. (Id., no. 164, ¶17.) Yamaha similarly argues in its motion that “Neu and McWilliams’ opinion that a stalled or improperly operating motorcycle engine can cause its back wheel to slow more quickly than expected or lockup prematurely is not based on any scientific methodology or testing . . . and is, therefore, inadmissible.” (Id., no. 161, ¶11.) Both motions are premised upon the reports of the defense experts, Robert R. Moderow, Dennis A. Toaspem, Warner W. Riley P.E., and Wade Bartlett P.E.

Vance & Hines’ expert, Mr. Moderow, opines that “speeding is a major factor in this accident” and that the alleged “carburetion complaints (stalling and loss of power)” did not play “any role.” (Id., no. 164, exhibit C, pp. 1-2.) Based upon his experience with an exemplar motorcycle, he “disagree^] with plaintiff’s experts as stated in their report that stalling of the engine can cause the rear wheel to lock up.” (Id., p. 2.) Lo-Jan’s expert, Mr. Toaspem, states that there was no “safety-of-operation defect” in the motorcycle and “no reason for Lo-Jan Travel Center to warn of nonexistent consequences of continued operation.” (Id., exhibit D, p. 6.) He also remarks:

“It is my opinion that the conclusions reached by the plaintiff expert, Forensic Sciences Inc., are erroneous in stating that a driveability problem, if it in fact existed, would cause an accident of this type. Upon entering a curve, such as found at the accident site, a motorcycle’s throttle is normally in the closed or slightly open position as the rider decelerates under braking and downshifting. In this situation, any minor driveability problem would have a negligible effect on the stability of the bike and would certainly have no bearing on a capsize involving locked wheels. A locked wheel or wheels entering a turn are the standard indication of an attempt by a rider to correct an approach speed that is excessive for the radius of the turn and the rider’s ability.

“It is a physical impossibility fora ‘stuttering’ or ‘sputtering’ engine to lock the rear wheel in the manner suggested by the Forensic Sciences Inc. report. For the engine to affect even a momentary deceleration of the rear wheel resulting in a ‘chirp’ from the tire, the rider must downshift several times in rapid succession, allow the engine rpm to drop significantly and then quickly release the clutch. The resulting skid mark, if discernible at all, will be short, less than 10 feet. As the rear wheel gains traction, the engine rpm will rapidly rise, (to the mechanical limits of the engine), constraining the skid mark length. Absent an unusual external cause or a gross mechanical failure, at the speeds involved there simply is no mechanism available to lock the rear wheel for a significant amount of time other than the brakes.” (Id., p. 7.)

Yamaha’s engineering expert, Warren W. Riley RE., concludes that the motorcycle was not defective and also disputes “[t]he idea that an engine which ‘stalls’ can cause the rear wheel to lock and mark the pavement....” Mr. Riley postulates that this theory “is without foundation and would be unheard of by those who understand motorcycle operation and basic vehicle engineering.” (Id., exhibit B, p. 3.) Finally, Lo-Jan’s other expert, Wade Bartlett P.E., surmises:

“As an engineer involved in the study of motorcycle and other vehicular accidents, I am relatively familiar with the important scientific/engineering literature and studies relevant to this field, and I have not seen any support in such literature or studies for plaintiff’s theory of causation of this accident. There is no published agreement among even a minority of experts in my field that an accident could happen in the manner that plaintiff’s experts have theorized.” (Id., exhibit E, p. 4.)

It should be noted, however, that none of the defense experts have identified any authoritative studies, research or literature which recognize their methodology and principles as generally accepted in the relevant engineering or scientific community.

In response to the defense motions, Neu authored another report on March 8, 2004, addressing “the methodology [Neu and McWilliams] used in the technical investigation that led to the conclusions we reached as to the condition of the motorcycle in the subject case.” Neu states that the “conclusion that the fuel system of the motorcycle was improperly adjusted [is] based on descriptions of the condition of the sparkplugs.” Neu explains that the sparkplugs “were replaced at 500 miles because they were fouled and again later because they were completely black.” Referencing an exemplar manual prepared by Chrysler Corporation on engine performance, Neu indicates that “[t]he diagnosis of fuel system problems based on the appearance of sparkplugs is described in most manuals on internal combustion engines.” (Id,., exhibit E, p. 1.)

With regard to their opinions “as to the effect of loss of power or stalling of the engine on the braking of the motorcycle,” Neu maintains that their conclusions are based upon their professional “knowledge that an internal combustion engine that is not under power creates a greater drag on the powered wheel than one that is under power.” To that end, he expounds:

“When an engine loses power or stalls during brake application, the additional drag from the engine is added to the drag from the brake so that the rear wheel slows more rapidly than it would if the engine were running normally. The more rapid than normal slowing of the rear wheel will cause it to lock up prematurely and skid.
“The increased drag from an unpowered engine is due to resistance of the engine to turning because of compression in the cylinders. The source of drag is explained in the attached description of the operation of Otto cycle engines (the type of engine that powered the motorcycle) in The Encyclopedia Americana and the attached description of driveline drag from Fundamentals of Vehicle Dynamics by Thomas D. Gillespie. In the case of the motorcycle, we measured the drag on the rear wheel from the unpowered engine by rotating the rear wheel with a torque wrench. A torque wrench can be used to measure the resistance to turning of a shaft, in this case the rear wheel shaft.” (Id., pp. 1-2.)

Neither Lo-Jan nor Yamaha has submitted supplemental materials from their experts challenging the validity or reliability of the literature cited by Neu in his final report of March 8, 2004. Rather, they contend that “the materials attached to the Neu report fail to demonstrate that the experts, in extrapolating therefrom utilized any generally-accepted scientific methodology in the field of motorcycles or motorcycle accident investigations to determine the cause of this accident.” (Id., no. 177, p. 8.) The moving defendants alternatively argue that in the event that their Rule 207.1 motions are denied, they are entitled to supplemental expert discovery under Pa.R.C.R 4003.5(a)(2) on the basis that Neu and McWilliams have not disclosed their exact measurements of “the drag on the rear wheel from the unpowered engine.” (Id., p. 11.)

II. DISCUSSION

(A) Standard of Review

Questions concerning the admission of novel scientific evidence are governed by the “general acceptance” rule which was originally articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), later adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 231-32, 369 A.2d 1277, 1281 (1977), and recently reaffirmed as the controlling evidentiary standard in this Commonwealth. See Grady v. Frito-Lay Inc., 576 Pa. 546, 839 A.2d 1038, 1045-46 (2003). Pa.R.C.P. 207.1 sets forth the procedure to be followed if a party seeks “to exclude expert testimony which relies upon novel scientific evidence, on the basis that it is inadmissible under Pa.R.E. 702 or 703,” and authorizes the trial court to decide the motion prior to trial or to defer the matter until trial. Since Perfilio will be unable to satisfy her burden of proof in this case if the testimony of Neu and McWilliams is precluded at trial, we will address this potentially dispositive evidentiary issue prior to the trial which is scheduled to begin on October 4, 2004. See Pa.R.C.P. 207.1(a)(3) (stating that “the court shall initially review the motion to determine if, in the interest of justice, the matter should be addressed prior to trial”).

Under Frye and Rule 207.1, the proponent of expert scientific evidence bears the burden of establishing that the methodology that an expert has used is generally accepted by the relevant scientific community. Grady, 839 A.2d at 1045; Cassell v. Lancaster Mennonite Confer ence, 834 A.2d 1185, 1189 (Pa. Super. 2003). As an exclusionary rule of evidence, the Frye rule “must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.” Trach v. Fellin, 817 A.2d 1102, 1104 (Pa. Super. 2003) (en banc), appeal denied, 2004 WL 587650 (Pa. 2004). The trial court’s ruling under Pa.R.C.P. 207.1 “should not be disturbed on appeal unless the trial court abuses its discretion” which “may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support so as to be clearly erroneous.” Grady, 839 A.2d at 1046.

(B) Novelty of Methodology

Pennsylvania appellate courts have cautioned “that a Frye analysis is not triggered every time science enters the courtroom.” Commonwealth v. Dengler, 843 A.2d 1241, 1243 (Pa. Super. 2004). Indeed, if the trial courts were required to apply Frye every time that a scientific expert rendered an opinion, it would produce “a result that is nothing short of Kafkaesque to contemplate.” Track, 817 A.2d at 1110. For that reason, this exclusionary rule of evidence “applies only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness.” Cummins v. Rosa, 846 A.2d 148, 150 (Pa. Super. 2004) (emphasis in original); M.C.M. v. Milton S. Hershey Medical Center, 834 A.2d 1155, 1158 (Pa. Super. 2003). To be considered “novel,” the scientific evidence “must be something different from ‘new’ which could be original, striking, unusual or strange.” Dengler, supra (expert psychologist’s opinion whether sex offender met criteria for sexually violent predator was not novel scientific evidence subject to Frye).

Furthermore, only the principles and methodology that the expert employs, not the conclusions [s]he reaches, must be generally accepted by scientists in the relevant field. Grady, 839 A.2d at 1045; Track, 817 A.2d at 1114. In determining whether a particular scientific process is generally accepted, the court must consider whether the proffered evidence stems from scientific research which has been conducted in a fashion that is generally recognized as being sound rather than “the fanciful creation of a renegade researcher.” 834 A.2d at 1158-59; Tucker v. Community Medical Center, 833 A.2d 217, 224 (Pa. Super 2003). However, the Frye test does not “require an optimal methodology, just an accepted one.” Cassell, 834 A.2d at 1190. Additionally, properly qualified experts may rely upon their individual professional experience in conducting their analysis and formulating an opinion. See e.g., Cummins, 846 A.2d at 151 (Frye did not bar experts in malpractice action from relying “upon their respective personal expertise to reach a conclusion regarding the source of [patient’s] injuries.”); Tucker, 833 A.2d at 224-25 (expert’s opinion that catheter could not perforate urethral wall was based upon his urological experience and not subject to Frye); Commonwealth v. Passarelli, 789 A.2d 708, 715 (Pa. Super. 2001) (physician’s diagnosis of “shaken baby syndrome” was opinion testimony, not scientific evidence within the meaning of Frye); Smith v. Grab, 705 A.2d 894, 900-901 (Pa. Super. 1997) (oncologist’s opinion regarding effect of three-week delay in diagnosing breast cancer was based upon his oncological experience, and the “failure to cite an article or text on point goes to the weight of his testimony, not its admissibility.”); Joyce v. Boulevard Physical Therapy and Rehabilitation Center, 694 A.2d 648, 656 (Pa. Super. 1997), appeal denied, 559 Pa. 771, 740 A.2d 1148 (1999) (orthopedic expert’s opinion was based upon 30 years of experience and it was unnecessary to “cite to treatises and medical periodicals to support his articulation of the standard of care.”).

In support of their conclusion that an exhaust system defect resulted in a loss of engine power that created increased drag and caused locking of the rear wheel, Neu and McWilliams cite the physical findings noted on inspection of the motorcycle, their measurement of the rear wheel drag from an unpowered engine, and literature which has not been challenged by the defense experts. Observing that the diagnosis of fuel system problems based upon the condition of sparkplugs is recognized by “most manuals on internal combustion engines,” Neu and McWilliams reference the “completely black” appearance of the motorcycle’s sparkplugs and their early replacement as evidence of the failure to properly calibrate the fuel and air mixture in the motorcycle’s exhaust system. With regard to their conclusion that the resultant loss of power placed greater drag on the powered wheel and caused premature locking of the rear wheel during braking, Perfilio’s experts cite the unusual corrosion of the exhaust system upon post-accident inspection, their engineering “knowledge that an internal combustion engine that is not under power creates a greater drag on the powered wheel,” their measurement of the rear wheel drag with a torque wrench, and articles discussing the source and effect of drag in Otto Cycle engines.

The defense experts do not dispute the principles employed by Neu and McWilliams in diagnosing an alleged faulty calibration of the fuel system; rather, they focus their Frye attack on the proffered connection between stalling of the engine and locking of the rear wheel. In that regard, Moderow, Toaspern and Riley merely contest the validity of the conclusions reached by Neu and McWilliams as opposed to the methodology or principles employed to arrive at those conclusions. Mode-row states that he “disagree[s] with plaintiff’s experts . .. that stalling of the engine can cause the rear wheel to lock up,” while Toaspern characterizes the conclusions at issue as “erroneous.” Riley likewise attacks the conclusion “that an engine which ‘stalls’ can cause the rear wheel to lock and mark the pavement” as “unheard of by those who understand motorcycle operation and basic vehicle engineering.” None of these experts discuss the testing or methods used by Neu and McWilliams to formulate their conclusions, nor do they denounce the supporting literature cited by Perfilio’s experts. Since Frye does not require Perfilio to “prove that the scientific community has also generally accepted the expert’s conclusion,” Grady, 839 A.2d at 1045, Moderow, Toaspern and Riley do not provide a basis for excluding the testimony of Neu and McWilliams under Pa.R.C.P. 207.1.

Only Bartlett arguably addresses the issue of whether the methodology utilized by Neu and McWilliams is generally accepted by the relevant scientific community. Riley claims that he is “relatively familiar with the important scientific/engineering literature and studies relevant to this field” and has “not seen any support in such literature or studies for plaintiff’s theory of causation of this accident.” However, after Neu subsequently identified the scientific publications and engineering principles which reportedly recognize Neu and McWilliams’ methodology as reliable, Bartlett did not issue a supplemental report contesting the validity or authoritativeness of those articles or precepts. Consequently, the Frye record submitted for review is devoid of any direct challenge to the principles and literature referenced in the Neu report dated March 8, 2004.

The parties’ submissions do not establish that Neu and McWilliams utilized novel methodologies which are generally regarded as unsound by the engineering community. Yamaha and Lo-Jan contend that the testing underlying their experts’ hypotheses is superior to that employed by Perfilio’s experts since the defense experts analyzed an exemplar motorcycle’s engine and brakes during actual operation whereas Neu and McWilliams measured the subject motorcycle’s drag and resistance while stationary. But as stated above, Frye does not “require an optimal methodology just an accepted one,” Cassell, supra, and the record does not reflect that the diagnostic techniques used by Neu and McWilliams have been disavowed by the relevant scientific community.

Simply because the defense experts disagree with the scientific theories proffered by Perfilio’s experts does not mean that Neu and McWilliams’ testimony is subject to preclusion under Rule 207.1. If expert opinions were declared inadmissible on that basis, trial judges would be transformed from gatekeepers for the introduction or exclusion of novel scientific evidence to fact-finders obligated to choose between conflicting expert opinions and to determine which opinion is more credible or reliable. Determinations of that nature are the sole responsibility of the jury. The defense’s criticisms of the foregoing conclusions and testing affect the weight of the testimony by Perfilio’s experts rather than its admissibility. See Cummins, 846 A.2d at 151; Cassell, 834 A.2d at 1190. Accordingly, the motions seeking to exclude the expert testimony of Neu and McWilliams under Pa.R.C.P. 207.1 will be denied.

ORDER

And now, June 10, 2004, upon consideration of the motions of Yamaha Motor Corporation USA and Lo-Jan Travel Center Inc., to exclude the testimony of Charles Edwin Neu P.E., and Bayard T. McWilliams P.E., pursuant to Pa.R.C.P. 207.1, or in the alternative to conduct additional expert witness discovery under Pa.R.C.P. 4003.5(a)(2), the memoranda of law submitted by the parties, and the materials and oral argument presented for review, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The motions of defendant Yamaha Motor Corporation USA and Lo-Jan Travel Center Inc. to exclude the testimony of Charles Edwin Neu P.E. and Bayard T. McWilliams P.E. pursuant to Pa.R.C.P. 207.1 are denied; and

(2) Defendants’ alternative motions to conduct further expert witness discovery pursuant to Pa.R.C.P. 4003.5(a)(2) are denied.

      . Neu and McWilliams also prepared a fifth report dated September 13, 2000, addressing PennDOT’s alleged liability for the faulty configuration of Dalton Road which purportedly contributed to the decedent’s accident. (Id., no. 174, exhibit D.) The Neu and McWilliams report of September 13, 2000, is not the subject of the Rule 207.1 motions.

      . Perfilio’s experts also considered deposition testimony which indicated that riders of the subject motorcycle were required to use the choke and operate the motorcycle at high speeds in order to avoid sputtering or stalling of the engine.

      . Although the moving defendants also attack Neu and McWilliams’ use of extrapolation in forming their opinions, the Track court recognized extrapolation as a methodology which is generally accepted in the scientific community and thus sufficiently reliable under Frye. See Track, 817 A.2d at 1115-19.

      . Since the moving defendants have not demonstrated the requisite good cause to justify supplemental expert witness discovery after the certificate of readiness has been filed and this matter has been scheduled for trial, see Lacka. Cty. R.C.P. 214(b) (“[n]o certificate of readiness may be filed until all discovery in the case has been completed and all depositions for use at trial have been scheduled or completed”), the defense’s alternative motion to conduct such discovery under Pa.R.C.R 4003.5(a)(2) will be denied. See Augustine by Augustine v. Delgado, 332 Pa. Super. 194, 205-206, 481 A.2d 319, 325 (1984); Robbins v. Rahimzadek, 54 D.&C.4th 221, 223-24 (Alleg. Cty. 2001).


author: SYLVESTER, J.,

text:
    Garcia v. Mabine

      Lisa S. Dagostino, for plaintiff.

      David A. Yavil, for defendant.
    May 26, 2004
   SYLVESTER, J.,

Plaintiff, Rosimar Garcia, a minor, by her mother and natural guardian, Karla Romero, appeals from this court’s order of March 19,2004, granting the defendants’ preliminary objections on the basis of improper venue under Pa.R.C.P. 1006(a. 1).

FACTUAL AND PROCEDURAL HISTORY

The underlying claim in this case was that defendants provided negligent care and treatment during the delivery of the minor plaintiff on November 22,1987, at Our Lady of Lourdes Medical Center in Camden, New Jersey. More specifically, the plaintiffs contended that the minor plaintiff suffered severe permanent brain damage as a result of defendants’ failure to timely deliver the minor plaintiff despite prolonged bradycardia. All of the care and treatment provided to plaintiffs occurred in Camden, New Jersey. It is undisputed that no care was provided in Philadelphia County or in any other county in Pennsylvania. It is further undisputed that plaintiffs reside in the state of New Jersey.

The complaint in this case was filed on December 31, 2003. Plaintiffs alleged that Pennsylvania had jurisdiction over defendants Bruce Mabine M.D. and William Rumbaugh M.D. based upon their residence in Pennsylvania, and that Dr. Mabine has an office in Philadelphia. Jurisdiction over Our Lady of Lourdes Medical Center and Our Lady of Lourdes Health System was premised on the fact that they are owned by a Pennsylvania corporation, Catholic Health East, and that they engage in business activity with and in Pennsylvania. Although plaintiffs admitted that all of the negligence in this case occurred in Camden, New Jersey, they contended that suit in Philadelphia was nevertheless proper because the new venue rule, Pa.R.C.P. 1006(a.l), cannot eliminate jurisdiction where it would otherwise exist within the Commonwealth.

On February 11, 2004, defendants filed preliminary objections to plaintiffs’ complaint on grounds of improper venue and lack of jurisdiction. Plaintiffs filed a response to defendants’ preliminary objections on March 1,2004. On March 19, 2004, this court issued an order dismissing the plaintiffs’ complaint without prejudice for lack of proper venue. Plaintiffs filed a notice of appeal to the Pennsylvania Superior Court on March 29, 2004, and filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on April 15, 2004.

LEGAL DISCUSSION

The issue raised by plaintiffs on appeal is one of first impression. The rules for venue for a medical negligence action are found at Pa.R.C.P. 1006(a.l) which provides that, except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose. The instant cause of action did not arise in any county in Pennsylvania. Indeed, there is no dispute in this case that all of the alleged negligent acts for which recovery is sought occurred in Camden, New Jersey. Plaintiffs argue that suit in Philadelphia County is nevertheless proper because a venue rule cannot eliminate jurisdiction where it would otherwise exist within this Commonwealth.

Although this court agrees with plaintiffs that it is normally paradoxical that there can be proper jurisdiction over a defendant in Pennsylvania, but no place to lay venue in the Commonwealth, this is the effect of the clear language of Pa.R.C.P. 1006(a.1). In Olshan v. Tenet Health System City Avenue, 2004 WL 859169, 2004 Pa. Super. 128 (April 22, 2004), the Superior Court recently had an opportunity to interpret the new venue rule. Although not directly on point, the court’s decision in that case is instructive here.

Olshan held that where a plaintiff received no medical treatment in Philadelphia County, but only in Montgomery County, the trial court properly granted the defendants’ preliminary objections to improper venue in Philadelphia. The plaintiff in Olshan argued that venue in Philadelphia was proper where all of the corporate defendants, with the exception of Tenet Healthcare Corp., had their primary places of business in Philadelphia County. Rejecting this argument, the court held that “health care services” within the meaning of the statute governing venue in medical professional liability actions relates to medical care and directly related activities, and not to ancillary services such as the hiring of physicians, the drafting of rules, or the supervising and reviewing of the work of health care professionals.

In reaching this conclusion, the Olshan court looked to the intent of the legislature in drafting the new venue rules. The court pointed out that the rules for venue for a medical negligence action were amended along with the statutory changes embodied in the MCare Act, to go into effect concurrently with the MCare Act and reflect the same intent as the General Assembly. After reviewing the declarations of policy of the General Assembly, the Olshan court opined:

“The rules of statutory construction make it clear that ‘the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.’ 1 Pa.C.S. § 1921(a). With these two declarations of policy the General Assembly has unambiguously stated its intention. The General Assembly has stated that it has recognized that health care in the Commonwealth was becoming controlled by larger entities such as Tenet Health Systems, the University of Pennsylvania, Thomas Jefferson University, Einstein Hospital, the University of Pittsburgh Medical Center, and West Penn Allegheny Health System. As a result of this, any health care provider affiliated with any of these larger corporate entities became fair game to be sued in Philadelphia or Pittsburgh, where the vast majority of corporate entities have their main location or conduct a large amount of business. The result of which has been an ‘unduly expanded’ reach and scope of venue. And since these two sections are unambiguous, it is hornbook law that we cannot resort to extraneous matters to rewrite the statute.

“The new venue rule provided in section 5101.1 and Pa.R.C.P. 1006 sought to alleviate this situation by limiting venue to the location of the alleged negligent care. However, appellant’s proposed interpretation of the new venue rules would result in almost no change at all. As demonstrated by the scenario before us, simply by alleging some form of corporate negligence, unrelated to the actual provision of health care services, the venue rules are circumvented and the doctor, in this case practicing in Montgomery County, once again finds himself a defendant in Philadelphia County. The appellant’s proposed interpretation represents not so much a loophole in the venue rules, but a tunnel, wide enough for a truck to drive through.”

Here, plaintiffs’ position that the new venue rules should not apply where health care institutions owned by a Pennsylvania corporation and Pennsylvania physicians commit tortuous acts in another state, seeks to create a similar hole in the venue rules, particularly in view of Philadelphia’s physical proximity to both New Jersey and Delaware. It would make for an anomalous result if a doctor practicing only minutes away from Philadelphia in Montgomery County cannot be sued in Philadelphia County, while a doctor practicing the same few minutes away in Camden County, New Jersey, is permitted to be sued in Philadelphia. Moreover, to sanction such a result would fail to effectuate the clear intention of the General Assembly. As the Olshan court pointed out, “[t]he General Assembly has clearly stated its intent to change the venue requirements in the act, not once, but twice.”

In view of the foregoing, it is the opinion of this court that its order of March 19,2004, granting the defendants’ preliminary objections for lack of proper venue should be affirmed.

      . Plaintiffs have alleged that Our Lady of Lourdes Medical Center is a member of Catholic Health East, a Pennsylvania corporation.


author: SHEPPARD JR., J„

text:
    University Health Services Inc. v. Pennsylvania Property & Casualty Insurance Guaranty Association

      Richard F. McMenamin, for plaintiff.

      Lise Luborsky, for defendant.
    May 5, 2004
   SHEPPARD JR., J„

Before the court are the cross-motions for summary judgment of University Health Services Inc. (UHS) (Control no. 021199) and Pennsylvania Property and Casualty Insurance Guaranty Association (PPCIGA) (Control no. 021195). For the reasons discussed, this court grants summary judgment in favor of UHS and against PPCIGA.

BACKGROUND

This action arises as a result of the liquidation of PHICO Insurance Company. PHICO was declared insolvent and placed in liquidation by order of the Commonwealth Court on February 1, 2002. Am. compl., exhibit B (the liquidation order). The liquidation order triggered the obligations of PPCIGA to the extent provided under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 PS. §§991.1801-991.1820 (the Guaranty Act). Prior to the liquidation, UHS was insured by PHICO under professional liability policy no. 10656 for claims related to UHS’ operation of various medical facilities (the policy).

The policy at issue, which was a claims-made policy, was initially issued on January 1, 1998, and remained in effect until January 1,2002 (the policy period). At the time of purchase, UHS also purchased a “reporting tail option” of unlimited duration, which was to take effect when the policy expired on January 1, 2002. The purpose of the reporting tail was to provide coverage after the policy expired for claims made relating to events that took place during the policy period. The reporting tail did not extend the policy period or the scope of coverage.

UHS received several claims based on events that took place during the policy period, but those claims were reported for the first time to UHS more than 30 days after the determination of insolvency (the reporting tail claims). PPCIGA has denied coverage on these claims, asserting that its obligations to provide coverage extended no further than to claims arising within 30 days after the determination of insolvency. As a result, PPCIGA maintains that its obligations had ended. UHS, on the other hand, contends that because of the reporting tail, there is no end date to PPCIGA’s obligations under the policy and the Guaranty Act. In essence, UHS contends that the reporting tail converted the claims-made policy into an occurrence policy.

DISCUSSION

PPCIGA is a statutory unincorporated association vested with remedial obligations in circumstances where licensed property and casualty insurers are deemed insolvent. 40 P.S. §991.1801; Bell v. Slezak, 571 Pa. 333, 812 A.2d 566 (2002). PPCIGA obtains funding to satisfy the obligations of insolvent insurers by collecting monies from all insurance companies that write property and casualty insurance in the Commonwealth. 40 P.S. §991.1808. Under the circumstances of PHICO’s insolvency, PPCIGA would ordinarily assume payment of the insolvent insurer’s obligations arising from claims made under the insurance policies of its insureds, subject to limitations embodied in the Guaranty Act. 40 P.S. §991.1803(b)(1).

Under the Guaranty Act, PPCIGA is “deemed the insurer to the extent of its obligation on the covered claims and, to such extent, shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.” 40 P.S. §991.1803(b)(2); see e.g., Donegal Mutual Insurance Co. v. Long, 528 Pa. 295, 300, 597 A.2d 1124, 1127 (1991); Matusz v. Safeguard Mutual Insurance Co., 340 Pa. Super. 116, 119, 489 A.2d 868, 870 (1985). Thus, under the statutory scheme of the Guaranty Act, PPCIGA “steps into the shoes” of the insolvent insurer and, as a result, accepts legal defense obligations in connection with “covered claims” against insureds of insolvent insurers which arise under the policy in question. 40 P.S.§991.1803 (b)(3). Specifically, the Guaranty Act defines PPCIGA’s “powers and duties” as follows:

“To be obligated to pay covered claims existing prior to the determination of the insolvency, arising within 30 days after the determination of insolvency or before the policy expiration if less than 30 days after the determination of insolvency or before the insured replaces the policy or. causes its cancellation if he does so within 30 days of the determination . . . .” 40 P.S. §991.1803 (b)(l)(i). (emphasis added)

A “covered claim” is defined by the Guaranty Act as an “unpaid claim . . . submitted by a claimant, which arises out of and is within the coverage and is subject to the applicable limits of an insurance policy to which this article applies . ...” 40 P.S. §991.1802.

This court finds that the reporting tail claims are “covered claims” as defined by the Guaranty Act in that they constituted unpaid claims submitted by UHS that arose out of and are within the coverage and subject to the applicable limits of the PHICO policy. There is nothing in the record to suggest that such claims would not have been covered under the reporting tail of the policy if PHICO had not become insolvent. The issue then turns on whether the reporting tail claims “existed” prior to the determination of insolvency. Not surprisingly, the parties take opposite positions on the issue.

To make a decision, a basic understanding of the concepts relevant to the policies at issue is necessary. The policy was a claims-made policy which provided coverage only to claims arising from events which both occurred and were reported during the policy period. Def. exhibit 2; see also, Home Insurance Co. v. Law Offices of Jonathan DeYoung P. C., 32 F. Supp.2d 219, 224 (E.D. Pa. 1998). As noted, UHS purchased unlimited tail coverage for its claims-made policy, which, by its own terms, provided coverage for claims made after the expiration of the policy period for events which occurred during the policy period. “Tail coverage provides insurance protection for acts, errors or omissions that occurred while the initial claims-made policy was in effect, so long as the claim is asserted before the expiration of the tail period.” Home Ins. Co., 32 F. Supp.2d at 224 (citing Couch On Insurance §102:26 (3d ed. 2000)). Thus, the reporting tail changes the nature of the claims-made policy and shifts the focus to when the event giving rise to liability took place, rather than when it was reported. In essence, the tail converts UHS’ claims-made policy into an occurrence policy. See e.g., Ballow v. PHICO Insurance Co., 875 P.2d 1354 (Colo. 1993); Byrne v. Joilet Medical Group Ltd., 1992 WL 159178, *3 (N.D. Ill. 1992).

Here, it is undisputed that the events giving rise to the reporting tail claims took place during the policy period (which was in effect from January 1,1998 through January 1, 2002) and prior to PHICO’s determination of insolvency (February 1,2002). “Once the occurrence happens, liability insurance coverage attaches even though the claim may not be made for sometime thereafter.” 20 Holmes’ Appelman On Insurance §130.1 at 218-19 (2d ed. 2002). As such, this court finds that the reporting tail claims fall within the statutory language of the Guaranty Act as claims “existing prior to the determination of the insolvency —” 40 P.S. §991.1803(b)(l)(i) and are therefore covered.

This determination is consistent with the intent of the Guaranty Act. Pursuant to the Statutory Construction Act, the court’s purpose is to “ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). In doing so, the court may consider, inter alia, the “object to be attained” by the statue and the “consequences of a particular interpretation.” 1 Pa.C.S. §1921(c)(4). Hence, in determining the issue of coverage here, one should not lose focus of the purpose behind the Guaranty Act, which includes providing “a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” 40 P.S. §991.1801. An insured who purchased coverage from and has a valid claim against an insolvent insurer should receive, at a minimum, the level of benefits provided by the state guaranty association. The only limitations placed upon an injured party are the limitations as set forth in the Guaranty Act. Thus, by the clear and unambiguous terms of the Guaranty Act, PPCIGA is deemed to “stand in the shoes” of PHICO in the instant matter and is, therefore, obligated to provide coverage for the reporting tail claims, just as PHICO would have been so obligated but for its insolvency, subject to the limitations of the Guaranty Act.

CONCLUSION

For these reasons, this court finds as follows:

(1) The motion of defendant Pennsylvania Property and Casualty Insurance Guaranty Association (Control no. 021195) is denied;

(2) The motion of plaintiff University Health Services (Control no. 021199) is granted. Specifically, it is the determination of this court that the reporting tail claims, as defined in the attached opinion, are covered claims under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 PS. § §991.1801-991.1820, subject only to specific policy defenses that may be available under the terms of the PHICO policy in question and the limitations of the Guaranty Act itself; and

(3) PPCIGA is ordered to perform its obligations with respect to the defense and indemnity provisions as set forth in the PHICO policy and the Guaranty Act, subject to the available policy defenses, if applicable.

ORDER

And now, May 5,2004, upon consideration of the parties’ cross-motions for summary judgment, the responses in opposition and the respective memoranda, oral argument, all other matters of record, and in accord with the opinion being filed contemporaneously, it is ordered that:

(1) The motion of defendant Pennsylvania Property and Casualty Insurance Guaranty Association (Control no. 021195) is denied;

(2) The motion of plaintiff University Health Services (Control no. 021199) is granted. Specifically, it is the determination of this court that the reporting tail claims, as defined in the attached opinion, are covered claims under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. § §991.1801 -991.1820, subject only to specific policy defenses that may be available under the terms of the PHICO policy in question and the limitations of the Guaranty Act itself; and

(3) PPCIGA is ordered to perform its obligations with respect to the defense and indemnity provisions as set forth in the PHICO policy and the guaranty Act, subject to the available policy defenses, if applicable.

      . Under a “claims-made” policy, the claim must be made during the policy period in order to obtain coverage. Under an “occurrence” policy, the incident giving rise to liability must occur during the policy period, but need not be reported during the policy period itself. Home Ins. Co. v. Law Offices of Jonathan DeYoung P.C., 32 F. Supp.2d 219 (E.D. Pa. 1998). This subject is discussed in greater detail, infra at p. 62.

      . It is undisputed that all premiums for the reporting tail were paid in full to PHICO before the expiration of the policy period.

      . By way of further background, UHS initially submitted its claims to the insurance commissioner acting in her role as the statutory liquidator of PHICO. The commissioner preliminarily determined that the reporting tail claims were not “covered claims” against PHICO in liquidation under the Insurance Department Act of 1940, 40 P.S. §201.221.63 (the Insurance Act) because the right to make reporting tail claims was allegedly cancelled by the liquidation order. After briefing and argument by UHS, the commissioner reversed her initial determination and issued a notice of claim determination that held that the reporting tail was not cancelled by the liquidation order and that the reporting tail claims should be covered claims under both the Insurance Act and the Guaranty Act. The commissioner reasoned that these statutes were intended to be read together to provide coverage for such claims. PL mtn., exhibit 9. This determination was confirmed by the Commonwealth Court.
      However, it is important to note that PPCIGA was not a party to the PHICO liquidation action. Also, the commissioner’s determination, while instructive, is neither binding upon PPCIGA nor upon this court under principles of res judicata.

      . Section 991.1802 also requires that: “(1) the claimant or insured is a resident of this Commonwealth at the time of the insured event. Provided that for entities other than an individual, the residence of the claimant or the insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this Commonwealth.” 40 P.S. §991.1802. The satisfaction of this requirement has not been identified as an issue in this case.

      . Although not binding upon the court, these opinions are informative and the analyses helpful in resolving this issue.