author: GARDNER, J.,

text:
    Kuehn v. Morgan

      C.P. of Lehigh County,
    no. 2001-C-399.

      Nicholas R. Sabatine III, for plaintiffs.

      Kevin C. Reid, for defendant.
    June 16, 2002
   GARDNER, J.,

This matter is before the court on defendant’s motion in limine, filed November 14,2001. Plaintiffs’ answer to defendant’s motion in limine was filed December 14,2001. Oral argument was held before the undersigned on March 22, 2002. Upon consideration of the arguments of counsel and the briefs of the parties, and for the reasons expressed in this opinion, we deny defendant’s motion in limine, and we grant plaintiffs leave to file a motion for extension of time in which to obtain expert witnesses.

This is an action for personal injuries arising from a motor vehicle accident which occurred on September 17, 2000 at approximately ten o’clock p.m. on MacArthur Road in South Whitehall Township, Lehigh County, Pennsylvania. Plaintiffs contend that plaintiff Bruce L. Kuehn Sr. was driving his 1992 Toy oto pickup truck south on MacArthur Road with his wife, plaintiff Stephanie Kuehn, in the right front passenger seat of the truck. Mr. Kuehn stopped at a traffic light near the entrance to the Lehigh Valley Mall. While waiting for the traffic light to turn green, the plaintiffs’ truck was struck from behind by a vehicle operated by defendant David S. Morgan.

Each plaintiff alleges receiving “various injuries as a result of the collision including, but not limited to chronic low back pain, neck pain, cervical sprain and lumbar sprain, some of which or all may be permanent.” Each plaintiff seeks compensatory damages for his or her injuries. Each seeks damages for the loss of consortium of the other spouse. Each also seeks punitive damages.

At oral argument on his motion in limine, defense counsel conceded that defendant’s negligence caused the accident. More specifically, defendant conceded that he owed a legal duty of due care towards plaintiffs, and that he breached that duty.

In their complaint, plaintiffs allege that defendant violated the rules of the road and the laws of the Commonwealth of Pennsylvania, including following too closely, driving vehicle at safe speed, careless driving, reckless driving, and driving under influence of alcohol or controlled substance. In defendant’s responses to plaintiffs’ interrogatories, defendant stated that he was cited for driving under influence of alcohol and careless driving.

Defendant also stated in his interrogatory responses that he was not given a field sobriety test, but that he had consumed a six-pack of beer in a 24-hour period preceding the accident. Defendant stated that the exact time of the beer consumption was unknown to him.

Defendant’s responses indicated that he was administered a breath test, and that the results indicated that he had a blood alcohol content of 0.31 percent volume of alcohol by weight in the blood. The record is silent concerning when, where, or by whom, the breath test was administered or the results analyzed.

According to defendant’s interrogatory responses, defendant’s 10-year-old daughter was riding with him at the time of the accident. However, the record is silent concerning whether there were any other witnesses, other details of the accident, and other details of defendant’s alcohol consumption or condition.

In his motion in limine, defendant seeks to preclude plaintiffs from producing any evidence at trial of defendant’s alcohol consumption, intoxication, blood alcohol level, or anything related to alcohol. In support of his request, defendant contends that any evidence of alcohol consumption or intoxication is irrelevant because he has conceded negligence. Plaintiffs apparently agree with defendant to the extent that evidence of defendant’s consumption of alcohol is not relevant or admissible to prove defendant’s negligence because defendant has conceded negligence. We agree as well.

Nevertheless, plaintiffs contend that proof of defendant’s consumption of alcohol, intoxication and blood alcohol level is relevant on the issue of punitive damages to establish that defendant was acting in a grossly negligent fashion and with wanton and reckless disregard for the safety of plaintiffs when defendant operated his vehicle in a highly inebriated state. Regarding plaintiffs’ claims for punitive damages, defendant contends that, because he conceded negligence, his consumption of alcohol has no probative value on damages or punitive damages, as well as on negligence.

Defendant argues, in the alternative, that even if his alcohol consumption has some relevance on the issue of punitive damages, it should nevertheless be disallowed because under the circumstances of this case the prejudicial effect of the proposed evidence outweighs any relevance it might have. In this regard defendant asserts that in weighing the admissibility of intoxication on the question of punitive damages, one has to look both at the surrounding circumstances and the nature of the harm which occurred.

Defendant contends that evidence of alcohol consumption is “inherently prejudicial.” The circumstances surrounding the accident, from defendant’s perspective, include light damage to plaintiffs’ vehicle, only soft tissue injuries, and treatment by a chiropractor for less than a year. In this context, defendant maintains, the relevance of the evidence of alcohol use regarding punitive damages is outweighed by its inherently prejudicial effect.

In Pennsylvania it is a criminal offense to drive a vehicle while the amount of alcohol by weight in the operator’s blood is 0.10 percent or greater. Accordingly, plaintiffs maintain that not only is defendant’s 0.31 percent blood alcohol reading relevant on the issue of punitive damages, but that its relevance outweighs any prejudicial effect which the evidence might have.

The long-established rule in Pennsylvania accident cases regarding the admissibility of intoxication evidence is that such evidence of intoxication must reasonably establish a degree of intoxication which proves unfitness to drive or to walk. If it is capable of establishing such unfitness to drive, the intoxication evidence is relevant. Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Locke v. Claypool, 426 Pa. Super. 528, 532, 627 A.2d 801, 803 (1993). However, in Whyte v. Robinson, 421 Pa. Super. 33, 617 A.2d 380 (1992) evidence of an odor of alcohol on the breath and a blood alcohol content of 0.144 percent alone was held insufficient to establish unfitness to drive.

Evidence of a driver’s blood alcohol content alone is insufficient to prove intoxication to a degree that renders him unfit to drive or walk in the street. Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970). Notably, the criminal presumption of intoxication at a blood alcohol level of 0.10 percent does not apply in civil cases. Suskey v. Loyal Order of Moose Lodge No. 86, 325 Pa. Super. 94, 472 A.2d 663 (1984).

If the evidence of intoxication is sufficient to establish unfitness to drive, the evidence is relevant. Nevertheless, to determine whether it is admissible, the court must apply the Pa.R.E. 403 balancing test, discussed below, to weigh its probative value against the danger of unfair prejudice.

As noted above, the parties agree that evidence of defendant’s intoxication is not relevant to establish that defendant was negligent because defendant conceded negligence. They disagree, however, concerning whether evidence of intoxication nevertheless is admissible to prove punitive damages. Although the parties contend that this is an issue of first impression in Pennsylvania, our research has revealed a case on point.

Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), is similar to the within case in that defendant conceded negligence. In Focht the Superior Court of Pennsylvania stated:

“[W]e believe that driving while under the influence of intoxicating liquor with its very great potential for harm and serious injury may under certain circumstances be deemed ‘outrageous conduct’ and ‘a reckless indifference to the interests of others’ sufficient to allow the imposition of punitive damages... .
“Automobiles represent the most lethal and deadly weapons today entrusted to our citizenry. When automobiles are driven by intoxicated drivers, the possibility of death and serious injury increases substantially. Every licensed driver is aware that driving while under the influence of intoxicating liquor presents a significant and very real danger to others in the area. Thus, we have no hesitancy in concluding that an intentional assault with fists may, in certain instances, constitute action less outrageous than attempting to drive while under the influence of intoxicating liquor which constitutes a threat to the life and safety of others. In certain factual situations the risk to others by the drunken driver may be so obvious and the probability that harm will follow so great that outrageous conduct may be established without reference to motive or intent.... We conclude, therefore, that, under the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages.” Focht, supra at 40, 41-42, 268 A.2d at 60, 61. (footnote omitted)

Accordingly, we reject defendant’s contention that evidence of intoxication is not relevant to the issue of punitive damages. For evidence of consumption of alcohol to be admissible on the question of punitive damages, however, the same rules, quoted above, concerning the admissibility of drinking on the question of negligence, apply. That is, such evidence of intoxication must reasonably establish a degree of intoxication which proves unfitness to drive, the evidence of intoxication must be probative on the issue of punitive damages, and the probative value of the evidence must outweigh its prejudicial effect.

In appropriate cases a plaintiff is entitled to recover punitive or exemplary damages in addition to compensatory damages. While compensatory damages are those damages which compensate a party for actual damage suffered and proved, punitive damages are awarded for no other purpose than to punish the wrongdoer for his outrageous conduct. Restatement (Second) of Torts §908(1) (1977).

Specifically, Pennsylvania courts have adopted the Restatement (Second) of Torts §908 on punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985), alloc. denied, 514 Pa. 635, 523 A.2d 346 (1987). Section 908(2) of the Restatement provides:

“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.”

The court has defined a reckless indifference in Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980):

“ ‘Reckless indifference to the interests of others,’ or as it is sometimes referred to, ‘wanton misconduct,’ means that ‘the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” Smith, supra at 120, 423 A.2d at 745.

In other words, there are three elements of reckless indifference: (1) the actor must have intentionally done an act of unreasonable character; (2) he must have disregarded a risk known to him or so obvious that he must have been aware of it; and (3) the risk must have been so great as to make it highly probable that harm would follow.

Plaintiffs assert that in assessing whether punitive damages are applicable here, the jury is entitled to determine whether defendant was intoxicated to the point that his intoxication formed the basis of a reckless indifference to the rights of plaintiffs. Plaintiffs contend that defendant’s responses to plaintiffs’ interrogatories indicate that defendant was convicted of driving under the influence of alcohol, that defendant had a blood alcohol level of 0.31 percent, that defendant did not remember taking a field sobriety test, that defendant had consumed a “six-pack” of beer in the 24 hours preceding the accident, and that the defendant drove in this condition with his 10-year-old daughter in the car.

Plaintiffs also indicated that they would provide the testimony of the arresting officers to describe the condition, and extent of intoxication, of defendant at the time of the accident.

If plaintiffs can establish the foregoing at trial and can establish that a 0.31 percent blood alcohol reading renders defendant unfit to drive, it would constitute circumstantial evidence that defendant had intentionally committed an act of unreasonable character (driving while highly intoxicated), had disregarded a risk (of harming people such as plaintiffs) so obvious that he must have been aware of it, and the risk must have been so great as to make it highly probable that harm would follow.

The foregoing would establish the relevance and probative value of the evidence of intoxication on the punitive damages issue, under the cases cited. Then the court must perform the “balancing test” to determine whether the proffered evidence has any prejudicial effect, and if so, whether the probative value is outweighed by its prejudicial effect.

The precise test is provided by Pa.R.E. 403 which provides, “Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” As stated in the comment to Rule 403, “ ‘Unfair prejudice’ means a tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.”

This balancing test is more appropriately performed by the trial judge in the context of the trial, than through a pretrial motion in limine. However, based on plaintiffs’ offer of proof, we reject the suggestion, implicit in defendant’s argument, that as a matter of law, plaintiffs will be unable to establish punitive damages.

As noted above, the Restatement (Second) of Torts §908(2) provides that in “assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act [and] the nature and extent of the harm to the plaintiff....” Accordingly, defendant is correct in asserting that in weighing the admissibility of intoxication on the question of punitive damages, one has to look both at the surrounding circumstances and the nature of the harm that occurred. This evaluation, also, is more appropriately performed at the time of trial.

Finally, defendant contends, in the alternative, that even if the relevance of the evidence outweighs its prejudicial effect, plaintiffs should be precluded from producing any evidence of defendant’s 0.31 percent blood alcohol content because they have produced no expert testimony to explain the relevance of the blood alcohol level. Defendant asserts that in a civil case, unlike a criminal case, there is no presumption of an unfitness to drive with a blood alcohol content above 0.10 percent. Suskey v. Loyal Order of Moose Lodge No. 86, 325 Pa. Super. 94, 472 A.2d 663 (1984). Defendant asserts plaintiffs need expert testimony to explain the effect of a 0.31 percent blood alcohol level to a jury.

Plaintiffs, on the other hand, contend that they do not need expert testimony to establish that defendant had a blood alcohol level of 0.31 percent. Plaintiffs argue that the trial judge should advise the jury that under Pennsylvania law a person with a blood alcohol level of 0.10 percent is legally incapable of safe driving, and that a reading of 0.31 percent is three times that level. Plaintiffs assert that, on that basis alone, a jury could reasonably conclude, without the support of expert testimony, that driving with a 0.31 percent blood alcohol level constitutes reckless indifference. For the following reasons, we disagree.

As noted above, plaintiffs are not permitted to present evidence of a presumption of an unfitness to drive with a blood alcohol content above 0.10 percent because that is not permitted in a civil case. Suskey, supra. The general rule is that expert testimony is required where the jury is confronted with issues which require scientific or specialized knowledge to understand.

In Dion v. Graduate Hospital of the University of Pennsylvania, 360 Pa. Super. 416, 425, 520 A.2d 876, 881 (1987), the Superior Court of Pennsylvania articulated the reasons for the general rule as follows:

“Frequently, the jury, or the court trying a case without a jury, is confronted with issues which require scientifie or specialized knowledge or experience in order to be properly understood. Certain questions cannot be determined intelligently merely from the deductions made and inferences drawn from practical experience and common sense. On such issues, the testimony of one possessing special knowledge or skill is required in order to arrive at an intelligent conclusion. 31 Am.Jur.2d Expert and Opinion Evidence §16 (1967). In these matters, where laymen have no knowledge or training, the court and jury are dependent on the explanations and opinions of experts.
“In a logical and fundamental sense, a verdict is worth only as much as the evidence upon which it is based. In a complex case, a jury, in order to reach an intelligent conclusion, is dependent on expert testimony. If the jury is enlightened, it will reach the right verdict. Unaided by the explanations and opinions of those with specialized knowledge or skill, the ultimate conclusion might just as well be based on evidence presented in a language unfamiliar to the jury. Unless the jury is comprised of experts in the field, the verdict is based on mere conjecture. Such a verdict is worthless.” Dion, supra at 425, 520 A.2d at 881.

However, there is an exception to the general rule requiring expert testimony. Plaintiff is not required to produce an expert witness in cases where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of common knowledge and the ordinary experience and comprehension of the average lay juror, or the doctrine of res ipsa loquitur is applicable. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981); Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970).

There are a number of contentions being advanced by plaintiffs which require scientific or specialized knowledge to understand, and thus are beyond the knowledge of a layperson. These include what a 0.31 percent blood alcohol level means; the amount of alcohol a person would have to consume to raise a blood alcohol level of 0.31 percent; how, and at what rate, alcohol is absorbed into the bloodstream; and the effect that amount of alcohol has on a person’s coordination and judgment.

“Where the factual situation is such that normally laypersons (jurors) would not have the special or expert knowledge needed to comprehend and understand the problem, then expert testimony is appropriate.” Drew v. Laber, 477 Pa. 297, 302, 383 A.2d 941, 944 (1978). At the oral argument on defendant’s motion in limine on March 22, 2002, the undersigned placed on the record various reasons why expert testimony is required to establish plaintiffs’ contentions, and why the evidence is beyond the knowledge of a layperson. The Notes of Testimony of that analysis are attached to this opinion as Appendix A, and [are not] incorporated here.

Accordingly, we agree with defendant that plaintiffs cannot introduce evidence of intoxication to establish entitlement to punitive damages in the absence of expert opinion. At oral argument, plaintiffs’ counsel made a motion to extend the time for production of expert reports in the event that we conclude that expert testimony is necessary. Because plaintiffs’ motion was oral, defense counsel did not have an opportunity to formally respond.

Therefore, we will give plaintiffs until July 12, 2002 to file a formal written motion for extension of the deadline to produce expert reports, accompanied by a brief. Defendant shall have 20 days from receipt of plaintiffs’ motion and brief in which to file an answer and response brief. In the event plaintiffs fail to file their motion by July 12, 2002, we will entertain an amended motion in limine on behalf of defendant to preclude evidence of intoxication.

For all the foregoing reasons, we deny defendant’s motion in limine.

ORDER

Now, June 16,2002, upon consideration of defendant’s motion in limine, which motion was filed November 14, 2002; upon consideration of plaintiffs’ answer to defendant’s motion in limine filed December 14, 2001; upon consideration of the briefs of the parties; after oral argument held on March 22, 2002; and for the reasons expressed in the accompanying opinion, it is ordered that defendant’s motion in limine is denied without prejudice.

It is further ordered that on or before July 12, 2002, plaintiffs may file a motion for extension of the deadline to submit expert reports, accompanied by a brief.

It is further ordered that defendant shall have 20 days from receipt of plaintiffs’ motion and brief to file an answer and response brief.

It is further ordered that in the event plaintiffs shall fail to file a motion for extension and brief by July 12, 2002, defendant shall have until August 1, 2002, to file an amended motion in limine to preclude evidence of intoxication.

      . Our ruling is without prejudice for defendant to file an amended motion in limine if we deny plaintiffs’ request for an expert; or if we grant it, and plaintiffs fail to obtain an expert.

      . See complaint filed June 4,2001, paragraphs 12 (Bruce L. Kuehn Sr.) and 22 (Stephanie L. Kuehn).

      . See complaint, Count II (husband plaintiff) and Count IV (wife plaintiff).

      . See complaint, paragraphs 13 (husband plaintiff) and 23 (wife plaintiff).

      . Notes of testimony of argument held on March 22, 2002, p. 3.

      . See complaint, paragraphs 6(f) and 16.

      . 75 Pa.C.S. §3310.

      . 75 Pa.C.S. §3361.

      . 75 Pa.C.S. §3714.

      . 75 Pa.C.S. §3736.

      . 75 Pa.C.S. §3731.

      . Neither plaintiffs’ interrogatories, nor defendant’s responses, were filed of record. However, at oral argument, both counsel referred to the content of the interrogatories and responses. N.T. 24.

      . N.T. 24.

      . N.T. 18, 24.

      . N.T. 24.

      . N.T. 17, 23-24.

      . N.T. 17.

      . N.T. 4.

      . N.T. 4, 13.

      . See N.T. 22, 35.

      . N.T. 11-12.

      . N.T. 6.

      . N.T. 10.

      . N.T. 6, 10.

      . 75 Pa.C.S. §3731(a)(4)(i).

      . N.T. 39.

      . N.T. 29-33.

      . Defendant’s motion in limine was filed November 14, 2001, prior to the expiration of the deadlines for the completion of discovery and the submission of expert reports. Moreover, at oral argument, plaintiffs’ counsel stated that plaintiffs did not receive answers to their interrogatories until February 6, 2002. (N.T. 33.) Our discovery order dated My 30, 2001, set December 3, 2001, as the deadline for both the completion of discovery and for the plaintiffs’ submission of expert reports. We conclude that plaintiffs may not have been in possession of all of the information about defendant’s level of intoxication necessary to determine whether expert testimony was required, notwithstanding counsel’s argument that it was not necessary. At the time defendant’s motion in limine was filed, plaintiffs still could have produced a timely expert report.
      We reserve decision on plaintiffs’ motion to extend the deadline for submission of expert reports because we want to give plaintiffs the opportunity to reduce the motion to writing, supported by a brief, and for defendant to have the opportunity to formally respond in like kind before we decide this issue.

      . In the brief in support of defendant’s motion in limine filed November 14,2001 and at oral argument, defense counsel argued that alcohol has no effect until absorbed into the bloodstream. Counsel stated that this occurs 30 to 90 minutes after consumption of alcohol. Defense counsel cited Schwarzbach v. Dunn, 252 Pa. Super. 454, 462, 381 A.2d 1295, 1298 (1977) for the proposition that any blood test evidence that “relates back” to a time earlier than the time the test was performed is viewed with skepticism as entirely too speculative.

        For the guidance of counsel and the trial judge, we note that the language relied upon by defendant was dictum. Moreover, Schwarzbach was a plurality opinion. Only three of the seven judges of the Superior Court of Pennsylvania who participated in that decision (President Judge Watkins, Judge Jacobs, and Judge van der Voort) adopted that proposition in the Watkins’ opinion. Judge Hoffman dissented. Judge Cercone concurred in the result. Judge Price wrote a concurring opinion, joined by Judge Spaeth, in which they disagreed with the blood alcohol discussion in the Watkins’ opinion.
      An opinion which does not represent the views of a majority of the court is not precedent. Commonwealth v. Davenport, 462 Pa. 543, 559 n.3, 342 A.2d 67, 75 n.3 (1975). Plurality opinions do not have precedential authority. Boyer v. Smith, 345 Pa. Super. 66, 71, 497 A.2d 646, 648 (1985). A plurality opinion is an opinion of an appellate court in which more judges join than in any concurring opinion (though not a majority of the court). Black’s Law Dictionary 1039 (5th ed. 1979); Ballentine’s Law Dictionary 956 (3d ed. 1969).
      Either a majority opinion, a plurality opinion, or an opinion by an equally divided court will affirm the judgment of the lower court. But the opinion of affirmance by an equally divided court, or by a plurality, has no precedential value. Commonwealth v. Covil, 474 Pa. 375, 380-81, 378 A.2d 841, 844 (1977).
      The vote of a judge concurring in the result is counted for purposes of affirming the judgment of the lower court. However, that vote does not contribute to a majority of the court participating necessary to create precedent. Commonwealth v. Glover, 497 Pa. 433, 435-36, 441 A.2d 1216, 1217 (1982).
      Similarly, a concurring opinion expressing different reasons for the outcome is counted for purposes of affirming the judgment of the lower court. However, it does not count with the majority for creating precedent (unless the concurring opinion is being cited for a point or line of reasoning with which a majority of the court agrees). See Commonwealth v. Bracero, 325 Pa. Super. 494, 500 n.3, 473 A.2d 176, 179 n.3 (1984).


source: Caselaw Access Project

author: JONES, J.,

license: Public Domain

text:
    Crane v. Gastrointestinal Specialist Inc.

      Mark W Tanner, for plaintiff.

      John Pumphrey, for defendant Kuti.

      J. Michael Doyle, for defendants Gastrointestinal Specialist and Harmatz.
    June 7, 2002
   JONES, J.,

BACKGROUND

The within matter is a medical malpractice action wherein plaintiff claimed to have suffered various neurological symptoms as an alleged result of defendants’ negligence in performing a colonoscopy on February 28, 1997. Specifically, plaintiff alleged that while anesthetized, he was instructed to lie on his left side and that as a result of doing so, suffered ulnar nerve damage, including injury to his left arm, hand and fingers, as well as neck and shoulder.

At the conclusion of a jury trial on November 5,2001, the jury returned a verdict for plaintiff against defendants Alexander Harmatz M.D. and Barbara Kuti C.R.N.A., in the amount of $300,000. In rendering their verdict, the jury further found that: defendant Harmatz was 50 percent causally negligent; defendant Barbara Kuti C.R.N.A., was 50 percent causally negligent; and defendant Harmatz was the ostensible agent of Gastrointestinal Specialist Inc.

All defendants filed post-trial motions, which were denied by this court on February 20, 2002. The within appeal followed, wherein defendants Harmatz and Gastrointestinal Specialist Inc. assert that: (1) plaintiff failed to prove a prima facie case of medical malpractice; (2) the evidence was insufficient to establish that the doctrine of res ipsa loquitur should apply; (3) this court erred in charging the jury on the doctrine of res ipsa loquitur; (4) plaintiff’s expert testimony was insufficient to prove a prima facie case of medical negligence, as their opinions on causation were inadmissible pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (5) plaintiff’s experts were not qualified to testify against defendant Harmatz; (6) this court erred in permitting plaintiff’s experts, Drs. Tahmoush and Fraifeld, to testify beyond the scope of their reports; (7) this court erred in permitting plaintiff’s experts to offer prejudicial testimony based upon speculation and conjecture; (8) this court erred in precluding the expert testimony of defendants’ expert, Michael Brooks M.D.; (9) defendants were entitled to a new trial or remittitur, due to the excessiveness of the verdict; and, (10) this court erred in denying defendants’ post-trial motions. See attachment “A.”

DISCUSSION

A. Standard of Law

Defendants generally assert that as a result of the errors alleged herein, they were entitled to a new trial and/ or judgment n.o.v.

The standard to be applied in assessing whether or not a new trial is warranted is well-established. A new trial shall only be granted, “[wjhen a jury’s finding is so opposed to the demonstrative facts that looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against the bizarre and erratic conclusion, it can be said that the verdict is shocking.” See Gunn v. Grossman, 748 A.2d 1235, 1239 (Pa. Super. 2000), appeal denied, 564 Pa. 700, 764 A.2d 1070 (2000).

With regard to defendants’ request for judgment n.o.v.,

“[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of the evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations. Finally, a [judgment n.o.v.] must be denied where conflicting evidence has been presented to the jury.” Burton-Lister v. Siegel, Sivitz and Lebed Associates, 2002 WL 819072, *1-2 (Pa. Super.), (citations omitted)

Moreover, “[t]he entry of judgment n.o.v....is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury.” Id., quoting Neal by Neal v. Lu, 365 Pa. Super. 464, 478, 530 A.2d 103, 110 (1987). Therefore, “A court may not vacate a jury’s finding unless ‘the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.’ ” TJS Brokerage & Co. Inc. v. Hartford Casualty Insurance Co., 2002 WL 826484, *3 (Pa. Com. Pl.), quoting Birth Center v. St. Paul Companies Inc., 787 A.2d 376, 383 (Pa. Super. 2001).

Pursuant to the discussion hereinbelow, defendants’ motions for a new trial and/or judgment n.o.v. were properly denied.

B. Allegations on Appeal

I. Prima Facie Case of Medical Negligence

Defendants first contend that plaintiff failed to establish a prima facie case of medical negligence at trial. See attachment “A,” ¶2.

In order to establish a prima facie case of medical malpractice, a plaintiff must show that: “(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm. Moreover, the patient must offer an expert witness who will testify to a reasonable degree of medical certainty that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Rauch v. Mike Mayer M.D., 783 A.2d 815, 824 (Pa. Super. 2001), appeal denied, 568 Pa. 624, 793 A.2d 909 (2002). See also, Burton-Lister v. Siegel, Sivitz and Lebed Associates, 2002 WL 819072 (Pa. Super.).

During trial, defendants Harmatz and Kuti testified that if a patient is positioned properly during a colonoscopy, there should be no risk of nerve damage. See N.T. 10/29/ 01, pp. 113-14, 125. Moreover, plaintiff presented the opinion of two experts who testified to a reasonable degree of medical certainty, that had plaintiff been positioned properly for the procedure, he would not have suffered nerve damage. See videotaped deposition of Dr. Fraifeld. See also, N.T. 10/30/01.

Defendants claim that plaintiff has not met his burden, because his expert witnesses were unable to say with certainty exactly what occurred during the colonoscopy, or to otherwise point to any action or inaction by defendants that necessarily led to plaintiff’s injury. See attachment “A,” ¶2. See also, brief of defendants Gastrointestinal Specialist Inc. and Alexander Harmatz M.D., in support of their motion for post-trial relief, p. 19. Despite the fact that this is not a completely accurate depiction of the testimony presented at trial, plaintiff did not necessarily need an expert to prove his case.

“Expert testimony is not . . . required to establish a breach of duty ‘where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons.’...

“Nor is expert testimony as to causation required ‘where there is an obvious causal relationship’ between the injury complained of and the alleged negligent act.... ‘An obvious causal relationship exists where the injuries are either an “immediate and direct” or the “natural and probable” result of the alleged negligent act.’ ” Matthews v. Clarion Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999). (citations omitted)

In the instant matter, plaintiff clearly presented sufficient evidence to show that there was an obvious causal relationship between the colonoscopy procedure performed on February 28, 1997, and the ulnar nerve damage that was realized once plaintiff regained consciousness from the anesthesia immediately thereafter. The injuries complained of by plaintiff could be deemed both “immediate and direct,” as well as the “natural and probable” result of defendants’ acts or omissions, even without the assistance of an expert’s opinion.

For these reasons, the testimony of defendants Harmatz and Kuti, as well as plaintiff’s two experts, was sufficient to establish a prima facie case of medical negligence. Beyond that, the jury was free to assess the credibility of each witness and reach a final determination based on the law as provided to them.

The foregoing, viewed in conjunction with the record in toto, clearly demonstrates that plaintiff established a prima facie case of medical negligence.

II. Prima Facie Case of Res Ipsa Loquitur

Defendants further contend that the evidence was insufficient to allow the case to proceed to the jury under the theory of res ipsa loquitur. See attachment “A,” ¶2.

The doctrine of res ipsa loquitur is codified in the Restatement (Second) of Torts at section 328D:

“(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when: (a) the event is of a kind which ordinarily does not occur in the absence of some negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Restatement (Second) of Torts §328D (1965).

Based upon the foregoing standard, the court in Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981), ruled that res ipsa loquitur may be applied in medical malpractice cases and that:

“[E] xpert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. Expert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Even when there is no fund of common knowledge, the inference of negligence should be permitted where it can be established from expert medical testimony that such an event would not ordinarily occur absent negligence. . . . There is no longer a need to be reluctant to permit circumstantial proof in medical malpractice cases where the nature of the evidence provides the requisite reliability of the inference sought to be drawn. When common-law knowledge or medical evidence can be established that the event would not ordinarily occur without negligence, there is no basis for refusing to permit a jury to draw such an inference.” Id. at 472-73, 437 A.2d at 1138.

The court in Jones further found that it is not necessary for a plaintiff to eliminate the possibility of any and all other causes of the injury, in order to proceed under the doctrine of res ipsa loquitur. Id. at 476-77, 437 A.2d at 1140.

In a more recent medical malpractice case entitled Toogood v. Owen J. Rogal D.D.S. P.C., 164 A.2d 552 (Pa. Super. 2000), the court similarly found that the doctrine of res ipsa loquitur was applicable. Plaintiff in Too good received a cortisone injection for muscle pain in his back. Immediately thereafter, plaintiff began experiencing intensified pain and was unable to breathe. He was rushed to the hospital where it was determined that plaintiff’s lung had collapsed. The honorable appellate court ultimately concluded that under these circumstances, “the trial court properly permitted appellee to proceed on a theory of res ipsa loquitur.” Id. at 556. See also, Sweikert v. Kostin, 54 D.&C.4th 290 (2001).

In view of the foregoing, as well as the facts proffered by plaintiff, this court properly found that plaintiff was entitled to proceed under the theory of res ipsa loquitur, in addition to general negligence.

III. Jury Instruction on Res Ipsa Loquitur

Defendants next assert that this court erred in instructing the jury on the doctrine of res ipsa loquitur. See attachment “A,” ¶3.

For the reasons set forth immediately hereinabove, the doctrine of res ipsa loquitur was wholly applicable to the case at bar. With specific regard to defendants’ assertion that a new trial is warranted because this court improperly instructed the jury on res ipsa loquitur, the following has been clearly established:

“In order to warrant a new trial with regard to an objection to a court’s instructions to the jury, the complaining party must establish (a) that a charge was erroneous, and (b) that this erroneous charge controlled the outcome of the case. . . . ‘[I]t is important to remember that res ipsa loquitur is merely a rule of circumstantial evidence.’ ... Thus, in light of the fact that all juries are entitled to consider both direct and circumstantial evidence [no argument can be made that] such a charge could ‘control the outcome of the case.’ ” Torres v. Episcopal Hospital, 47 D.&C.4th 104, 110 (2000), affirmed, 777 A.2d 517 (Pa. Super. 2001). (citations omitted)

With further regard to the propriety of a res ipsa loquitur instruction,

“In its purest form, ‘ [w]here there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for the injury, the doctrine [of res ipsa loquitur] applies.’ ” D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318, 321 (Pa. Super. 1998), appeal denied, 557 Pa. 643, 734 A.2d 394 (1998).

Moreover,

“Pennsylvania courts have thus concluded that where ‘the evidence in [the] case falls within the grey zone,’ ... a factual realm in which a plaintiff presents ‘as specific a case of negligence as possible, yet [is] unable to demonstrate the exact cause of the accident[,]’... plaintiff is entitled to a res ipsa loquitur charge.” Id. at 324-25. (citations omitted)

A review of the record herein clearly demonstrates that a res ipsa loquitur charge was warranted in this matter. Accordingly, this issue as raised by defendants on appeal, is wholly without merit.

IV. Admissibility of Plaintiff’s Experts’ Opinions

Defendants next contend that they “are entitled to a judgment n.o.v. because plaintiff’s expert testimony was insufficient to prove a prima facie case of medical negligence as their opinions on causation were inadmissible pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and all authority in this Commonwealth.” See attachment “A,” ¶4.

Preliminarily, this court heard arguments on defendants’ motion in limine regarding this issue, prior to trial. Pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, this court relies upon the same in support of its decision, as the reasons therefore appear of record. SeeN.T. 10/29/01, pp. 33-52.

Aside from this court’s rulings regarding plaintiff’s two experts (Dr. Tahmoush and Dr. Fraifeld), this court again points out that under the circumstances presented, plaintiff could have conceivably sustained his case without the use of an expert. See discussion, sections I and II hereinabove. See also, Matthews v. Clarion Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999). (Expert testimony as to causation is not required where the injury complained of is either an “immediate and direct” or the “natural and probable” result of the alleged negligent act.)

For these reasons, defendants’ claims regarding plaintiff’s experts are without merit.

V. Qualification of Plaintiff’s Expert Witnesses

Next, defendants contend that “Plaintiff did not prove a prima facie case of medical negligence, as his expert witnesses were not qualified to testify against Dr. Harmatz.” See attachment “A,” ¶5.

For the reasons set forth hereinabove, this issue as raised by defendants is wholly without merit.

VI. Expert Testimony “Outside the Scope” of the Report

a. Dr. Tahmoush

Defendants next assert that they are entitled to a new trial because this court erroneously allowed plaintiff’s expert, Dr. Tahmoush, to “offer prejudicial testimony outside the scope of his expert report.” See attachment “A,” ¶6.

Pursuant to Rule 4003.5(c) of the Pennsylvania Rules of Civil Procedure,

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters which he has not been interrogated in the discovery proceedings.” Pa.R.C.P. 4003.5.

The standard by which “fair scope” issues are to be assessed “is whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert, based upon any alleged deviation between the matters disclosed during discovery, and the testimony of such expert at trial.” Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 459, 563 A.2d 155, 157 (1989), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991).

Further,

“[I]n deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word ‘fair.’ The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.... ‘Fair scope ’ contemplates a reasonable explanation and even an enlargement of the expert’s written words. ” Id., quoting Wilkes-Barre Iron & Wire Works Inc. v. Pargas of Wilkes-Barre, 348 Pa. Super. 285, 290-91, 502 A.2d 210, 212-13 (1985). (emphasis added)

An example of how this reasoning is to be applied, may be seen in Butler v. Kiwi S.A., 412 Pa. Super. 591, 604 A.2d 270 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992). In Butler, the court was faced with a situation wherein a motorcycle accident analyst prepared a report approximately one month prior to trial, regarding the manner in which helmets operate to protect a motorcyclist’s head from trauma. At trial, the same expert testified as to the manner in which the helmet in question was pulled off of the victim’s head, as well as to the cause of the skull fractures sustained by the victim. The court determined that this testimony was within the fair scope of the report and did not result in unfairness, surprise or prejudice to the other party. Id. at 603, 604 A.2d at 275-76.

In yet another matter entitled Trent v. Trotman, 352 Pa. Super. 490, 508 A.2d 580 (1986), appellee’s expert at trial began to discuss the issue of causation, which was not specifically mentioned in his answers to interrogatories. Appellant contended that the trial court erred in permitting appellee’s expert to testify beyond the scope of his answers to interrogatories. The court held that:

“While the word ‘causation’ was not specifically mentioned in the interrogatories completed by the plaintiff regarding Dr. Rosenberg’s expected testimony, it is certainly clear that his testimony concerning causation, challenged by the appellant, was within the ‘fair scope’ of the answers to interrogatories provided by the plaintiff prior to trial.” Id. at 502, 508 A.2d at 586-87.

Defendants’ main point of contention herein is that Dr. Tahmoush’s testimony exceeded the scope of his report, with regard to the issue of “positioning” during the surgical procedure on February 28, 1997. Since the filing of his complaint, allegations of improper positioning of the arm have been the crux of plaintiff’s theory regarding how he believed his injuries were sustained. Defendants cannot claim surprise and were in no way prejudiced by Dr. Tahmoush’s testimony.

b. Dr. Fraifeld

Defendants further assert that they are entitled to a new trial because this court erroneously allowed plaintiff’s expert, Dr. Fraifeld, to “offer prejudicial testimony outside the scope of his expert report.” See attachment “A,” ¶7.

Dr. Fraifeld did not testify live at trial. Instead, plaintiff offered a videotaped deposition of the doctor. Prior to showing said video to the jury, this court ruled on various objections to Dr. Fraifeld’s testimony, including that regarding “scope.” This court’s rulings on the same may be found at pages 4-34 of the notes of testimony of October 31, 2001. For the reasons set forth therein, this issue as raised by defendants must be deemed without merit.

VII.“Speculative” Nature of Testimony Offered by Plaintiff’s Experts

Defendants’ next contention on appeal is that “plaintiff’s experts were improperly permitted to offer prejudicial testimony based on speculation and conjecture.” See attachment “A,” ¶8.

This court’s rulings regarding the purported nature of experts Fraifeld and Tahmoush’s testimony may be found at pages 33-52 of the notes of testimony of October 29, 2001, and pages 4-34 of the notes of testimony of October 31, 2001. For the reasons set forth therein, this issue as raised by defendants must be deemed without merit.

VIII.Proposed Defense Expert Michael Brooks

Defendants next assert that this court “improperly precluded the expert testimony of Michael Brooks M.D.” See attachment “A,” ¶9.

Prior to trial, this court heard arguments on plaintiff’s motion in limine to preclude the expert testimony of Dr. Michael Brooks. The same, including this court’s rulings, may be found at pages 19-32 of the notes of testimony of October 29, 2001. For the reasons set forth therein, this issue as raised by defendants must be deemed without merit.

IX.Excessiveness of Verdict

Defendants next assert that a new trial and/or remittitur is required because of the excessiveness of the verdict. See attachment “A,” ¶¶10 and 11.

Preliminarily, “[t]he mere height of a verdict,... is in itself no evidence of excessiveness because height is always a matter of relativity.” Layman v. Doernte, 405 Pa. 355, 363, 175 A.2d 530, 534 (1961).

Moreover,

“The decision to grant, or not to grant, [remittitur or] a new trial based on the excessiveness of a jury verdict is within the sound discretion of the trial court, and its decision will be upheld on appeal absent a gross abuse of that discretion.... In this area of the law, a gross abuse of discretion means that the verdict must be so grossly excessive that it shocks the court’s sense of justice. . . . We are not free to substitute our judgment for that of the trial judge or jury. ” Tesauro v. Perrige, 437 Pa. Super. 620, 623, 650 A.2d 1079, 1081 (1994), appeal denied, 541 Pa. 627, 661 A.2d 874 (1995). (emphasis added) (citations omitted)

Further,

“In determining whether a verdict is excessive, a court may consider the following factors: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of out-of-pocket expenses; (6) [t]he amount of compensation demanded in the original complaint. However, as each case is unique, the court should apply only those factors which are relevant to that particular case before determining if that verdict is excessive.” Petrasovits v. Kleiner, 719 A.2d 799, 806 (Pa. Super. 1998).

During trial, this court had an opportunity to observe plaintiff first-hand and to listen to his testimony regarding the effect this injury has had on his life. Additionally, in first assessing this issue at the post-trial motion stage, this court carefully considered the record in its entirety with regard to the extent of plaintiff’s injury and the effect said injury has had, and will continue to have, upon his life. At the conclusion of its assessment, this court determined that neither a new trial, nor order of remittitur was warranted. In view of the facts and circumstances surrounding the injury to plaintiff, the verdict was not “excessive,” “exorbitant” or “shocking,” as defendants so assert.

Accordingly, this issue as raised by defendants is without merit and the ruling of this court should not be disturbed on appeal.

X. Denial of Post-Trial Motions

The standard for assessing the propriety of a trial court’s decision to deny post-trial motions is well-settled: abuse of discretion. In determining whether or not a trial court has abused its discretion in reaching a decision,

“The test is not whether [the appellate court] would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.” Bergman v. United Services Automobile Association, 742 A.2d 1101, 1104 (Pa. Super. 1999).

Moreover, “the definition of a valid use of discretionary power means that the decision under scrutiny had merit.” Id.

Defendants’ burden of establishing that this court abused its discretion is a heavy one.

“[A]n abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” Bergman, 742 A.2d at 1104, quoting Paden v. Baker Concrete Construction Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995).

Post-trial motions filed on behalf of defendants were properly denied, as the record clearly demonstrates that a new trial or judgment n.o.v. was not warranted. As such, and in reliance upon the same, this court maintains that its decision was proper and that no abuse of discretion occurred.

Accordingly, defendants’ final issue on appeal is without merit.

CONCLUSION

For the reasons set forth herein, judgment should be affirmed.

ATTACHMENT “A”

Pa.R.A.P. 1925(b) STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY APPELLANTS-DEFENDANTS, GASTROINTESTINAL SPECIALIST INC. AND ALEXANDER HARMATZ M.D.

Pursuant to Pa.R.A.P. 1925(b) and the trial court’s order dated April 8, 2002, Gastrointestinal Specialist Inc. and Alexander Harmatz M.D., defendants, by and through their counsel, Post & Schell PC., hereby list their concise statement of matters complained of on appeal as follows:

(1) The trial court erred in denying the request for post-trial relief (in the nature of a judgment n.o.v., a new trial or a remittitur) previously filed by defendants as a result of the errors which took place during the proceedings in this matter. Each error addressed herein caused defendants to suffer irreparable prejudice which controlled the outcome of the case and now mandates the granting of appellate relief in their favor.

(2) Defendants are entitled to a judgment n.o.v. because plaintiff failed to prove a prima facie case of medical negligence since his expert witnesses could not pinpoint any particular error and, further, since the evidence was insufficient to allow the case to proceed to the jury under a theory of res ipsa loquitur.

(3) Defendants are entitled to a judgment n.o.v. or a new trial as the trial court erred in charging the jury on the doctrine of res ipsa loquitur.

(4) Defendants are entitled to a judgment n.o.v. because plaintiff’s expert testimony was insufficient to prove a prima facie case of medical negligence as their opinions on causation were inadmissible pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and all authority in this Commonwealth.

(5) Defendants are entitled to a judgment n.o.v. or a new trial because plaintiff did not prove a prima facie case of medical negligence as his expert witnesses were not qualified to testify against Dr. Harmatz.

(6) Defendants are entitled to a new trial because the trial court improperly permitted plaintiff’s expert, Dr. Tahmoush, to offer prejudicial testimony outside the scope of his expert report.

(7) Defendants are entitled to a new trial because the trial court improperly permitted plaintiff’s expert, Dr. Fraifeld, to offer prejudicial testimony outside the scope of his expert report.

(8) Defendants are entitled to a judgment n.o.v. or a new trial because plaintiff’s experts were improperly permitted to offer prejudicial testimony based on speculation and conjecture.

(9) Defendants are entitled to a new trial because the trial court improperly precluded the expert testimony of Michael Brooks M.D.

(10) Defendants are entitled to a new trial based on the excessiveness of the verdict.

(11) Defendants are entitled to a remittitur based on the excessiveness of the verdict.

(12) The trial court erred in entering its order, dated February 20,2002, and entered February 26,2002, which denied the motion for post-trial relief of defendants.

(13) With reference to all of the above allegations of error, each averment has been properly preserved for appeal in accordance with Pa.R.A.P. 341.

(14) The post-trial order denying defendant’s motion for post-trial relief became appealable as of right when judgment was entered on the jury’s verdict by order dated March 14, 2002, and entered March 15, 2002.

(15) Hence, defendant’s appeal is authorized by virtue of Pa.R.A.P. 341, as well as 42 P.S. §742 and 42 PS. §5105.

      . Subsequent to trial and verdict in this matter, defendant Barbara Kuti C.R.N.A., entered into a settlement agreement with plaintiff. Accordingly, counsel for defendant Kuti did not file a brief in support of post-trial motions and is not a party to the instant appeal.

      . In Feldman v. Entine, 42 D.&C.4th 189, 191-92 (1999), affirmed, 758 A.2d 728 (Pa. Super. 2000), plaintiff underwent surgery to have a cancerous growth removed from his thyroid. When he awoke from surgery, plaintiff experienced previously nonexistent hoarseness and weakness of his voice. It was determined that his laryngeal nerve was damaged, resulting in paralysis to the vocal cord. The court found that regardless of the fact that plaintiff’s expert could not state with specificity exactly how plaintiff’s injury occurred, plaintiff was entitled to proceed under the basic principles of negligence, as well as under the theory of res ipsa loquitur.

      . See also, N.T. 10/29/01, pp. 33-52, which this court further relies upon in support of its rulings regarding the qualification of experts Tahmoush and Fraifeld.

      . This court’s rulings on defendants’ objections to the scope of Dr. Tahmoush’s testimony may be found in the notes of testimony of October 30, 2001, at pp. 86-95.


author: CUNNINGHAM III, Member,

text:
    In re Anonymous Nos. 71 D.B. 99 and 126 D.B. 99
    Disciplinary Board Docket nos. 71 D.B. 99 and 126 D.B. 99.
    June 12, 2001
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CUNNINGHAM III, Member,

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On June 3, 1999, a petition for discipline was filed at no. 71 D.B. 99 by Office of Disciplinary Counsel, petitioner, against [ ], respondent in these proceedings. On June 10, 1999, a petition for emergency temporary suspension was filed with the Supreme Court of Pennsylvania by petitioner. On June 18,1999, a rule to show cause was issued by the Supreme Court. On June 29, 1999 respondent filed an answer to petition for emergency temporary suspension. On July 22, 1999, the petition for emergency temporary suspension was withdrawn by petitioner.

On October 13,1999, a petition for discipline was filed at no. 126 D.B. 99 by petitioner against respondent. Petitioner filed a motion to consolidate petitions for discipline on October 15, 1999, which motion was granted by Disciplinary Board order of December 1, 1999. The substance of the charges in the petitions is that respondent engaged in the unauthorized practice of law while on inactive status.

A disciplinary hearing was held on February 22,2000, before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent appeared pro se. Petitioner was represented by [ ], Esquire.

The Hearing Committee filed a report on July 19,2000, and found that respondent violated the Rules of Professional Conduct as charged in the petition for discipline. The committee recommended a suspension for a period of two years.

Respondent filed a brief on exceptions and a request for oral argument on August 11, 2000. Respondent took exception to the committee’s recommendation of a two-year period of suspension. A brief opposing exceptions was filed by petitioner on August 30, 2000.

Oral argument was held on November 3,2000, before a three-member panel of the Disciplinary Board consisting of Charles J. Cunningham III, John W. Morris and C. Eugene McLaughlin.

This matter was adjudicated by the Disciplinary Board at the meeting of November 15, 2000.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was admitted to practice law in Pennsylvania in 1982. He maintains an office at [ ]. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) By order dated December 3, 1997, the Supreme Court of Pennsylvania decreed that:

(a) Respondent be transferred to inactive status pursuant to Rule 219 Pa.R.D.E.; and

(b) Respondent’s transfer to inactive status was to take effect 30 days after the date of the order.

(4) By cover letter dated December 4, 1997, Elaine M. Bixler, executive director and secretary of the board, provided respondent with the following:

(a) Copy of the order of the Supreme Court dated December 3, 1997;

(b) Standard guidance of the Disciplinary Board to lawyers who have been transferred to inactive status;

(c) Rules 217 and 219 of the Pa.R.D.E.;

(d) Subchapter E, formerly admitted attorneys, of the Disciplinary Board rules;

(e) Form DB-23Í, nonlitigation notice of disbarment, suspension, or transfer to inactive status;

(f) Form DB-24Í, litigation notice of disbarment, suspension or transfer to inactive status; and

(g) Form DB-25Í, statement of compliance.

(5) Ms. Bixler’s December 4, 1997 correspondence was sent by certified mail, return receipt requested and was received by respondent on or about December 8, 1997.

(6) On January 2,1998, respondent’s transfer to inactive status became effective.

(7) Notice of respondent’s transfer to inactive status was published in the [ ] and the [ ].

(8) Respondent failed to file with the Disciplinary Board a verified statement in conformance with Rule 217, Pa.R.D.E.

(9) From January 2, 1998 to June 14, 1999, respondent was not in compliance with Rule 219, Pa.R.D.E.

(10) From January 2, 1998 to June 14, 1999 respondent was on inactive status.

(11) On or about July 14, 1998, respondent met with Deputy Chief Disciplinary Counsel Paul J. Burgoyne at which time:

(a) Mr. Burgoyne delivered an informal admonition to respondent for misconduct in an unrelated matter;

(b) Mr. Burgoyne informed respondent that respondent was on inactive status for failure to pay his annual fee;

(c) Respondent assured Mr. Burgoyne that he intended to remit his fee in order to regain active status.

(12) On or about June 11, 1999, petitioner filed with the Supreme Court of Pennsylvania a petition for emergency temporary suspension and related relief pursuant to Rule 208(f), Pa.R.D.E.

(13) The petition was personally served on respondent on June 14, 1999.

(14) On or about June 14, 1999, the administrative office of Pennsylvania courts lawyer assessment office received respondent’s 1999-2000 annual fee form and respondent’s submission of $375 representing arrearages of $225, annual fee of $105 for the Disciplinary Board and annual fee for the client security fund of $45.

(15) By order and rule to show cause dated June 18, 1999, the Supreme Court of Pennsylvania ordered respondent to prepare and deliver to petitioner a list of the names and addresses of all current clients and issued a rule to show cause why he should not be placed on temporary suspension pursuant to Rule 208(f).

(16) On June 28,1999, respondent filed a response to petition for emergency temporary suspension.

(17) On June 14, 1999, respondent was placed back on active status by the administrative office of Pennsylvania courts.

(18) On or about July 20, 1999, petitioner withdrew the petition for emergency temporary suspension.

Charge I

Practicing — While on Inactive Status

(19) On or about March 16, 1998 and September 28, 1998 (Commonwealth v. [A]); July 22, 1998, September 17, 1998 and October 13, 1998 (Commonwealth v. [B]); January 2, 1998 (Commonwealth v. [C]); April 30, 1998 and August 28, 1998 (Commonwealth v. [D]); August 7, 1998 (Commonwealth v. [E]); March 5, 1998 ([F] v. [G] Corporation); May 22, 1998 ([H] v. Commonwealth); May 22, 1998 (Commonwealth v. [I]); January 23, 1998 (Commonwealth v. [J]); July 2, 1998 and September 25, 1998 (Commonwealth v. [K]); November 2, 1998 (Commonwealth v. [L]); November 2, 1998 (Commonwealth v. [M]); November 2, 1998 (Commonwealth v. [N]); November 13, 1998 (Commonwealth v. [O]); November 13, 1998 (Commonwealth v. [P]); March 29, 1999 (Commonwealth v. [Q]); March 29, 1999 ([R] v. Commonwealth); March 29, 1999 ([R] v. Commonwealth); and January 20, 1999 and May 17, 1999 ([S] Corporation v. [T]) (citations omitted), respondent actively represented clients before the courts and/or administrative agencies of the Commonwealth.

(20) Throughout the entire period of the representations listed in paragraph 19 respondent was on inactive status and had not been reinstated to active status.

(21) Respondent never notified nor caused to be notified, by registered or certified mail, return receipt requested, (1) his clients involved in the litigation of the cases enumerated in paragraph 19; (2) the attorneys for the adverse parties in the cases enumerated in paragraph 19; nor (3) the courts or agencies in the cases enumerated in paragraph 19, of his transfer to inactive status.

(22) Respondent testified that he knew he was on inactive status for an extended period prior to payment of his fees. (N.T. at 83.)

(23) Respondent testified that he was not aware of the “effects of it [inactive status] or what it meant, I did not know, and I never did try to check on what the effects of it were other than look it up, and I saw no effects.” (N.T. at 83.)

(24) Respondent later conceded that he knew he should have done something else about it and, “Well, I’ll put it this way: I guess I’m weaseling now, but I knew that I needed to take steps to make it official.” (N.T. at 84.)

(25) Respondent testified that he did not take the necessary steps, yet knowingly continued to practice law. (N.T. at 84, 127, 128.)

Charge II

[U] Complaint

(26)On or about March 9, 1995:

(a) [U] (complainant) was operating a vehicle in which her mother-in-law, [Y], was a passenger;

(b) complainant’s vehicle was struck by a [W] (defendant) at the intersection of [ ] and [ ] Streets, [ ], Pennsylvania; and

(c) complainant and [V] suffered personal injury.

(27) On or about March 10, 1995, complainant and respondent entered into a written fee agreement whereby:

(a) Respondent agreed to prosecute a claim for trespass against all responsible parties with regard to complainant’s March 9, 1995, accident; and

(b) It was agreed that respondent would receive 35 percent of any settlement or verdict proceeds.

(28) By letter dated March 21,1995, respondent notified defendant’s insurance company ([X]) that respondent was representing complainant and [V], and that he would be contacting their office to discuss settlement possibilities.

(29) On or about February 26, 1996, respondent filed a complaint in civil action captioned as [U] and [V] and [Y] v. [W], Court of Common Pleas, [ ] County, civil trial division, no. [ ].

(30) On or about April 2, 1996, respondent filed a praecipe to reinstate the complaint.

(31) On or about October 22,1996, respondent filed a continued arbitration application. This application was denied on or about October 23, 1996.

(32) Due to respondent’s lack of communication, complainants attempted, on or about January 29, 1997, to terminate respondent’s representation and retain new counsel, [Z].

(33) Respondent never replied to [Z’s] and complainant’s requests for the transfer of the [U] file to [Z],

(34) Due to respondent’s failure to respond to [Z] the [U] attempted to personally obtain the file from respondent.

(35) On or about February 27, 1997, the arbitration case no. [ ] was closed.

(36) On or about March 10, 1997, respondent initiated a new action (by filing an identical complaint) captioned as [U] and [V] and [Y] v. [W], Court of Common Pleas, [ ] County, civil trial division, no. [ ].

(37) On or about March 12,1997, an arbitration hearing was scheduled for November 5, 1997.

(38) On or about September 12, 1997, [Y] met with respondent, whereupon:

(a) [Y] asked respondent to release their paperwork to [Z] office; and

(b) Respondent represented to [Y] that he was in the process of settling the case and would do so prior to a hearing scheduled for November 5, 1997.

(39) On or about November 5,1997, a report and award of arbitrators was entered in favor of defendants due to the respondent’s and the complainant’s failure to appear at the hearing.

(40) On or about November 20, 1997, [Y] met with respondent, whereupon respondent represented to [Y]:

(a) That the case was settled for $8,500 each; and

(b) That he would call them later to sign certain release papers.

(41) Respondent did not contradict or offer any evidence contradicting complainant’s testimony regarding the purported settlement of complainant’s case.

(42) On or about December 4, 1997, respondent filed a notice of appeal from the November 5,1997, award of board of arbitrators.

(43) On or about December 20, 1997, [Y] met with respondent, whereupon respondent:

(a) Represented that the case had not been settled and had been transferred to another attorney; and

(b) Refused to give the name and telephone number of such attorney.

(44) Not knowing what else to do, the [U] sent respondent a certified letter dated March 16,1997, requesting respondent to advise them about the status of their case.

(45) Respondent did not reply to the March 16, 1997 letter.

(46) Despite respondent’s never notifying the complainants of scheduled hearings he unilaterally filed notices of appeal from the award of the arbitrators.

(47) On or about March 25, 1998, respondent’s December 4, 1997 appeal was dismissed, and the matter was remanded to arbitration.

(48) On or about April 8,1998, an arbitration in [U] v. [W] was scheduled for June 18, 1998.

(49) On or about June 18,1998, a report and award of arbitrators was entered in favor of the defendant for failure of respondent to appear at the hearing.

(50) By letter dated July 15, 1998 (DB-7 letter), petitioner informed respondent of the allegations of the complainant and also alleged that respondent had been on inactive status since January 2, 1998.

(51) The DB-7 letter was sent by certified mail, return receipt requested, and was received by respondent or respondent’s agent on or about July 16, 1998.

(52) On or about July 15, 1998, respondent filed a notice of appeal from the June 18, 1998 award of the board of arbitrators.

(53) By letter dated August 12, 1998, petitioner:

(a) Advised respondent that it had not received a response to the DB-7 letter; and

(b) Advised respondent that, according to petitioner’s current records, respondent continued to remain on inactive status and requested respondent to contact petitioner immediately to clear up this particular problem.

(54) On or about August 26, 1998, respondent telephoned [AA], Disciplinary Counsel, and stated that he was:

(a) Presently working on a response to the DB-7 letter;

(b) In the process of returning the file to complainant;

(c) In arrears for his annual attorney fee; and

(d) Taking steps to have his annual fee paid to regain his active status.

(55) On or about September 9, 1998, Disciplinary Counsel [AA] telephoned respondent and left a message that he had not received any letter from respondent.

(56) Respondent did not return [AA’s] September 9, 1998 message.

(57) Respondent never filed a response to the DB-7 letter.

(58) On or about October 15,1998, respondent’s July 15, 1998 appeal was dismissed and the matter was remanded to arbitration.

(59) On or about December 7, 1998, an arbitration hearing in [U] v. [W] was scheduled for February 8,1999.

(60) On or about February 8,1999, a report and award of the board of arbitrators was entered in favor of defendant due to respondent’s failure to appear at the hearing.

(61) On or about March 8, 1999, respondent filed a notice of appeal from the February 8,1999 award of the board of arbitrators.

(62) On or about April 8,1999, respondent’s March 8, 1999 appeal was dismissed and the [U] v. [W] matter was remanded to arbitration.

(63) On or about May 25,1999, an arbitration hearing in [U] v. [W] was scheduled for July 30, 1999.

(64) On or about July 30,1999, a report and award of the board of arbitrators was entered in favor of defendant due to respondent’s failure to appear at the hearing.

(65) Respondent never provided the complainant with any documents, legal pleadings or correspondence with regard to her case.

(66) Respondent’s filings on July 15,1998, and March 8, 1999, were done at a time when he was on inactive status.

(67) Respondent has a history of discipline consisting of an informal admonition in 1997 and an informal admonition in 1998.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 1.2(a) — A lawyer shall abide by a client’s decisions concerning the objectives of representation... and shall consult with the client as to the means in which they are to be pursued.

(2) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) R.P.C. 1.16(a)(1) — A lawyer shall not represent a client, or, where representation has commenced, shall withdraw from representation if the representation will result in violation of the Rules of Professional Conduct or other law.

(5) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee which has not been earned.

(6) R.P.C. 3.2 — A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

(7) R.P.C. 5.5 (b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(8) R.P.C. 8.4(a) — It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or to do so through the acts of another.

(9) R.P.C. 8A(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(10) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(11) Pa.R.D.E. 217(b) — Failing to notify all clients involved in pending litigation or administrative proceedings of the lawyer’s transfer to inactive status.

(12) Pa.R.D.E. 217(c) — Failing to notify of the transfer to inactive status all persons to whom the lawyer owes a fiduciary duty and all other persons with whom the lawyer expects to have professional contacts where there was a reasonable probability that they may infer the lawyer was an attorney in good standing.

(13) Pa.R.D.E. 217(d) — Accepting a new retainer or engaging as attorney for another in a new case or legal matter, after the effective date of the lawyer’s transfer to inactive status.

(14) Pa.R.D.E. 217(e) — Within 10 days after the effective date of the transfer to inactive status order, the formerly admitted attorney shall file with the board a certified statement.

IV. DISCUSSION

This matter is before the Disciplinary Board on consolidated petitions for discipline. Petition for discipline no. 71 D.B. 99 contains two charges. Charge I consists of 10 counts of unauthorized practice of law while respondent was on inactive status. Charge II concerns respondent’s failure to adequately represent and communicate with his clients, the [U], in his representation of their personal injury matter. Petition for discipline no. 126 D.B. 99 contains an additional 10 counts of unauthorized practice of law while respondent was on inactive status.

The record is clear that respondent was on inactive status from January 2, 1998, through June 14, 1999, for failure to pay his annual license fee. During this time frame, he continued to practice law by representing clients. Respondent was aware that he was on inactive status by order of the Supreme Court of Pennsylvania. He testified before the Hearing Committee that he knew he was on inactive status long before he actually paid the fees. He attempted to argue that although he knew that he was inactive, he did not know the actual facts or effect of what inactive status meant, but later stated to the committee that he knew he should have taken steps to correct the inactive status.

Respondent argued to the board panel that he viewed the license fee as a debt owed and that debt has been paid. Respondent’s argument reflects his misunderstanding of his misconduct. Respondent is not before the board because he failed to pay his annual fee. He is involved in these proceedings becausehe was placed on inactive status and during that time continued to practice law in violation of the order of the Supreme Court. Respondent received notice of his transfer to inactive status from the executive director of the board in January 1998. He was questioned about his failure to pay by Deputy Chief Disciplinary Counsel Paul Burgoyne in My of 1998. At that time respondent assured Mr. Burgoyne that he would pay the fee. Respondent took no action to rectify this situation until June of 1999, when he was prompted into action by a petition for emergency temporary suspension filed by petitioner with the Supreme Court.

In addition to the unauthorized practice violations of the rules, respondent violated the rules in his representation of the [U], which representation commenced in 1995. Respondent displayed a complete lack of communication and competence. Respondent’s clients were essentially in the dark about the status of their case. Several arbitrations were scheduled in the matter and each time respondent failed to notify his clients of the hearing and failed to appear. Each time the case was dismissed and each time respondent would refile the case and the same thing would happen again. Respondent also failed to provide his client with documents and, having been informed that his clients wished to retain new counsel, failed to cooperate with such counsel in the transfer of his clients’ file to the new attorney. Respondent’s representation of these clients fell far below the minimum standards of practice.

The Hearing Committee, upon viewing the matter in its entirety, found that respondent acted with disdain for his responsibilities as a member of the bar. The committee recommended a two-year period of suspension and petitioner concurred with this position. Respondent excepts to this recommendation and contends that a public censure is the appropriate discipline. Respondent’s position is that the case law does not support a suspension for practicing law while on inactive status for failure to pay the annual fee.

The cases cited by respondent range in discipline from an attorney disbarred after he practiced law while under suspension, to an attorney suspended for six months after he practiced law while on inactive status. Office of Disciplinary Counsel v. Jackson, 536 Pa. 26, 637 A.2d 615 (1994); In re Anonymous No. 123 D.B. 96, 41 D.&C.4th 290 (1998). While respondent is correct that these cases do not specifically involve a failure to pay the annual fee, the cases cited are similar to the instant matter in that they concern practicing law while under an order of the Supreme Court prohibiting such activity. Therefore, respondent is not correct in arguing that his activities warrant no more than a public censure.

Severe sanctions, including suspension and disbarment, have been imposed for the unauthorized practice of law. In the matter of In re Anonymous Nos. 78 D.B. 84 and 38 D.B. 85, 39 D.&C.3d 131 (1986), the attorney continued to practice law after being placed on inactive status for failure to pay his annual fee. The attorney represented to Office of Disciplinary Counsel that he would withdraw from a criminal case, but instead appeared on behalf of his client and kept a one-third fee, evidencing that he had no intention of withdrawing from the case. The Supreme Court disbarred the attorney. In the case of In re Anonymous No. 48 D.B. 97, 42 D.&C.4th 254 (1999), an attorney who was suspended for three years failed to withdraw from representation of an estate and continued to hold himself out as a practicing lawyer by preparing documents and collecting counsel fees. The Supreme Court subsequently suspended the attorney for four years.

In the matter cited above at No. 123 D.B. 96, the attorney failed to cease the unauthorized practice of law despite clearly knowing he was prohibited from practicing and knowing that he was the subject of discipline. The court imposed a six-month suspension, recognizing that the unauthorized practice was limited to one case, and the attorney had no record of discipline.

Respondent’s case falls in the middle of the cited cases in terms of severity. His failure to take remedial steps to regain active status by the simple action of paying a fee reflects negatively on his fitness to practice. It is incomprehensible that an attorney would allow this state of affairs to exist to the point that he places his license in jeopardy. Respondent’s conduct in the [U] matter further illuminates respondent’s lack of fitness to practice.

The misconduct in the instant case is not as severe as that noted in the cases above that resulted in disbarment and a four-year suspension; however, due to the wide scope of respondent’s continued practice, his misconduct in the [U] matter, and his prior history of two informal admonitions, this case warrants a suspension of one year and one day. Such a suspension requires respondent to petition for reinstatement and prove his fitness as an attorney before he is permitted to practice law in the future.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Peck dissented and would recommend a two-year suspension.

Board Members Caroselli, Schultz, Rudnitsky andTeti did not participate in the November 15, 2000 adjudication. Board Members Halpem and Elliott recused themselves.

ORDER

And now, August 15, 2001, upon consideration of the report and recommendations of the Disciplinary Board dated June 12, 2001, it is hereby ordered that [respondent], be and he is suspended from the bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.