author: GEORGE, J.,

text:
    Crimmins v. PennDOT

      C.P. of Adams County,
    no. 96-S-1080.

      Shawn P. McLaughlin, for plaintiffs.

      Jay M. Stack, for defendant.
    February 13, 2003
   GEORGE, J.,

This matter comes before the court on the plaintiffs’ motion to compel discovery. During depositions of representatives from the defendant, Pennsylvania Department of Transportation (PennDOT), the plaintiffs attempted to inquire into a number of correspondences forwarded to or offered by PennDOT agents. PennDOT has objected to this inquiry on the claim that the correspondence is protected from discovery by the provisions of 75 Pa.C.S. §3754 (West 1996). A brief summary of the factual background of this matter will aid in disposition of this issue.

The plaintiffs’ complaint alleges that on September 2, 1995, Jo Robey Crimmins was driving her 1984 Buick LeSabre on Cashtown Road, Adams County, after leaving the South Mountain Fair. Melissa Crimmins, Kenneth Taylor, Danielle Crimmins and Jamie Herbst were passengers in her vehicle at the time. At the intersection of Cashtown Road and State Route 30, the Crimmins’ vehicle was involved in a tragic accident as the vehicle attempted to enter State Route 30 from Cashtown Road. The force and magnitude of the collision caused the vehicle to burst into flames killing Melissa Crimmins and Kenneth Taylor and causing, according to plaintiffs’ complaint, severe physical injuries to the remaining occupants of the vehicle. The plaintiffs’ complaint alleges that Route 30 is a state-maintained road and that PennDOT has jurisdiction and control of the intersection where this accident occurred. Additionally, the complaint alleges that PennDOT was aware of the dangerous conditions of this intersection and that PennDOT was negligent in its supervision and maintenance of this intersection.

During the course of discovery in preparation for trial, plaintiffs’ counsel attempted to question PennDOT district engineer, Barry Hoffman, concerning a letter dated June 28, 1994, directed to Richard J. Bell Jr., a Penn-DOT employee. After the letter was identified, PennDOT’s counsel objected and instructed Mr. Hoffman not to answer any further inquiry concerning the correspondence. PennDOT raised similar objections in regard to three other pieces of correspondence. Generally, the four correspondences at issue consist of the following:

(i) A letter dated June 28,1994, from Craig A. Hartley, vice-chairman of the Franklin Township Board of Supervisors to Richard J. Bell Jr., PennDOT (Hartley letter) — the letter references Franklin Township’s concern in regard to the Route 30/Cashtown Road intersection. The correspondence references numerous accidents at the intersection that resulted in injuries and several fatalities. It indicates that the Cashtown Community Fire Department chief believes that the intersection is responsible for most of the accidents. The correspondence goes on to suggest a number of possible solutions, including rumble strips and blinking traffic control devices;

(ii) Correspondence dated July 28, 1994, from Barry G. Hoffman, PennDOT district engineer to Craig A. Hartley, vice-chairman of the Franklin Township Board of Supervisors (Hoffman letter 1) — the correspondence essentially acknowledges receipt of the June 27, 1994 letter and indicates that it was forwarded to the “district traffic unit” for review. The letter affirms that the district traffic unit will conduct a study at the intersection to determine the appropriate course of action.

(iii) Correspondence dated February 10, 1995, from Barry G. Hoffman, PennDOT district engineer, to Craig A. Hartley, vice-chairman of the Franklin Township Board of Supervisors (Hoffman letter 2) — this letter is a follow-up letter to the July 28, 1994 correspondence concerning the intersection that is the subject of litigation. The letter indicates that a safety study at the intersection has been completed and that the installation of oversized stop signs “may prove to be an effective remedy to the accident problem...The letter advises the supervisors that a work order has been issued and that the signs will be installed as soon as materials are available and the work can be scheduled. The letter opines that the oversized signs “will be effective and should be thoroughly evaluated before proceeding with your request for a flashing warning device.” It further indicates that installation of any flashing warning device would be at the expense of the Township. The letter rejects the use of rumble strips at the intersection due to “noise pollution” and the recognition that drivers sometimes drive “around the rumble strips by using the shoulder or the opposing traffic lane”; and

(iv) Correspondence dated October 12, 1995, from Barry Hoffman, PennDOT district engineer, to Pennsylvania State Senator Terry Punt (Punt letter). This letter is apparently in response to a letter from Senator Punt to PennDOT dated October 3, 1995.The correspondence also generally references the accident that is the subject of this suit. In the correspondence, PennDOT acknowledges that safety improvements at the intersection are needed and that the following steps would be taken to address the accidents at that location: (1) PennDOT would fund the installation of a flashing intersection control beacon; (2) red flashers would remain in place as interim measures until the control beacon is operational; (3) 24-inch white plastic stop bars would be installed on both approaches to the Cashtown Road; and (4) PennDOT would be considering the installation of ramble strips on the- southbound approach of Cashtown Road.

PennDOT urges that these correspondences are protected from discovery and that PennDOT officers and employees are protected from providing evidence pertaining to these correspondences since they are part of an in-depth accident investigation and are protected by the statutory provisions of 75 Pa.C.S. §3754 (West 1996). In support thereof, PennDOT has presented the affidavit of Devang D. Patel, assistant district traffic manager-safety for PennDOT engineering district 8-0, which indicates that the Hartley letter is contained in the safety file for the intersection at State Route 30 and Cashtown Road. Moreover, the affidavit indicates that the Hartley letter served as a basis for generating an engineering and traffic study at the intersection; that the traffic study was concluded on February 10, 1995; that as a result of the subject accident, a second traffic study was commenced in September 1995, and ran through December 1, 1995; and that the “Punt letter” referenced improvements to the intersection as a result of the latter safety study.

Section 3754 of the Pennsylvania Vehicle Code provides as follows:

“(a) General rule. — The department, in association with the Pennsylvania State Police, may conduct in-depth accident investigations and safety studies of the human, vehicle and environmental aspects of traffic accidents for the purpose of determining the causes of traffic accidents and the improvements which may help prevent similar types of accidents or increase the overall safety of roadways and bridges.
“(b) Confidentiality of reports. — In-depth accident investigations and safety studies and information, records and reports used in their preparation shall not be discoverable nor admissible as evidence in any legal action or other proceeding, nor shall officers or employees or the agencies charged with the development, procurement or custody of in-depth accident investigations and safety study records and reports be required to give depositions or evidence pertaining to anything contained in such in-depth accident investigations or safety study records or reports in any legal action or other proceeding.” 75 Pa.C.S. §3754 (West 1996).

In analyzing the scope of the statutory privilege, I am mindful that evidentiary privileges are not favored. Commonwealth v. Stewart, 547 Pa. 277, 282, 690 A.2d 195, 197 (1997). “[E]xceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.” Id., quoting Hutchison v. Luddy, 414 Pa. Super. 138, 146, 606 A.2d 905, 908 (1992), quoting Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979). Pennsylvania appellate authority cautions trial courts to accept testimonial privileges “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Stewart, 547 Pa. at 282, 690 A.2d at 197, quoting In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir. 1990), quoting Trammel v. United States, 445 U.S. 40, 46, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980). Consequently, I must narrowly construe the provisions of any privilege that operates to hamper a party’s access to information potentially admissible in court. Commonwealth v. Hall, 744 A.2d 1287, 1289 (Pa. Super. 2000). In doing so, the circumstances under which the privilege is proposed to be applied must be scrutinized in order to ascertain whether the information sought to be protected falls within the scope of the enabling legislation. My inquiry, therefore, commences with an examination of the purpose of the statute. See 1 Pa.C.S. §§ 1921, 1922 (West 1995) (in interpreting legislative enactments, we are to ascertain and effectuate the intention of the legislature).

The legislative intent of 75 Pa.C.S. §3754 (West 1996) has evolved since the Act was originally adopted by the legislature on June 17, 1976. At that time, the Pennsylvania Supreme Court had not yet abolished the doctrine of sovereign immunity. See Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) (abolishing sovereign immunity). Accordingly, courts interpreting the original statute found that it was enacted “so that individuals would cooperate in the in-depth investigation [of accidents] without fear of being liable themselves.” Shoyer v. City of Philadelphia, 96 Pa. Commw. 75, 80, 506 A.2d 522, 525 (1986). Apparently, in response to the decision in Shoyer, the legislature amended section 3754 to its current form on December 11, 1986. Subsequent to the amendment, courts interpreting this section have found an expanded purpose of the legislation in that it effects “ ‘a safe and efficient system of motor vehicle transportation in the Commonwealth’ by providing its officers and employees ‘an unbiased, honest and accurate body of information regarding motor vehicle accidents.’ ” PennDOT v. Taylor, 746 A.2d 626, 630 (Pa. Super. 2000), quoting Mayfield v. PennDOT, 23 D.&C.3d 79, 81-82 (Fayette C. 1982). The plain language of the section demonstrates the legislature’s desire to improve traffic safety by enhancing PennDOT’s access to information. Taylor, 746 A.2d at 630. Our appellate court’s finding of the legislature’s objective has been adopted by PennDOT and is not at issue. This stated objective is consistent with the objective of the statute as urged by PennDOT during argument.

However, our appellate courts have gone further in ascertaining the meaning and operation of this particular statute. The Superior Court has instructed that subsections (a) and (b) must be read together when interpreting this Act. Citing the Statutory Construction Act of 1932, 1 Pa.C.S. §1932 (West 1995), the Superior Court has determined that subparagraphs (a) and (b) of 75 Pa.C.S. §3754 (West 1996) relate to the same class of persons or things and, therefore, they are in pari materia and must be construed together as a single provision. Hall, 744 A.2d at 1290. Upon reading the two subsections in pari materia, the Superior Court concluded that in-depth accident investigations or safety studies are rendered undiscoverable only to the extent that they are compiled by PennDOT in association with, the Pennsylvania State Police, and are done for the specific purpose of determining the causes of traffic accidents and the improvements which may help prevent similar types of accidents. Id. With this guidance, I will now address the specific issue before the court.

In regard to the Hartley correspondence, PennDOT argues that since this letter triggered the safety study at the intersection in question, and since it is included as part of the safety file, it is subject to the protections of section 3754. PennDOT reasons that since the statutory privilege protects information, records and reports used in the preparation of safety studies, the privilege must include all correspondence which directly relates to those studies. I am not persuaded by PennDOT’s argument.

The letter in question, according to the affidavit of PennDOT, served as a basis for and generated the engineering study of the subject intersection. Notably, the affidavit does not indicate that this letter was something relied upon or used by PennDOT in the preparation of the study. There is a distinct difference between the triggering mechanism of a study and information accessed or developed during a study. I believe the statutory privilege is aimed at protecting the latter. See Taylor, supra. Since it is the burden of PennDOT to establish the applicability of a statutory privilege, the evidence before this court is insufficient to protect the Hartley letter.

As noted by the Superior Court in Hall, supra:

“A conclusion to the contrary, as urged by PennDOT, would expand a disfavored evidentiary privilege and more importantly, contravene clear limitations on the scope of section 3754 imposed by subsection (a). Every police report or investigation, regardless of its origin, would be subject to the full panoply of protections otherwise due only ‘in-depth accident investigations and safety studies’ conducted by ‘the [Department, in association with the Pennsylvania State Police.’ All accident reports submitted to PennDOT would become privileged documents merely because they came into the possession of PennDOT, without legislative scrutiny or any consideration of the utility or harm inherent in proscribing disclosure. Such a result is in clear derogation of the plain language of section 3754(a). We cannot, by judicial fiat, expand this statutory privilege where the legislature has itself not chosen to do so.” Hall, 744 A.2d at 1290.

Moreover, protecting documents that are not an integral part of a safety study but which find their way into a safety study file, would frustrate other statutory provisions and can potentially be abused as a shield to PennDOT liability in contravention of the express intent of the legislature. For instance, 42 Pa.C.S. §8522 (West 1998) requires that a Commonwealth agency have prior written notice of the dangerous condition of a highway that was created by potholes, sink holes or other similar conditions as a triggering device to the waiver of sovereign immunity. Under PennDOT’s interpretation of the safety study privilege, conceivably such a written notice would be inadmissible at trial simply by PennDOT commencing a safety study or placing the written notice in a safety study file. Such a result is absurd and an overly broad interpretation of section 3754. As previously mentioned, courts have interpreted the intent behind the privilege to allow for an unbiased, honest and accurate body of information in order to address highway safety. This section is not meant as a shield to liability, thereby insulating PennDOT for a failure to act in response to notice of a dangerous condition.

A close reading of the Hartley letter confirms that the letter is not reasonably related to the type of material intended to be protected by section 3754. I fail to discern how allowing inquiry into this particular correspondence will have a chilling effect on the legislative goal of the frank discussion of safety issues within PennDOT. On the other hand, barring the letter under an expansive reading of a statutory privilege will have the effect of decreasing PennDOT’s accountability to the public, which potentially may have the negative effect of decreasing PennDOT’s responsiveness to safety issues. Of course, such a result would fly in the face of the legislature’s goal. Accordingly, the Hartley letter is not protected by the privilege.

Similarly, the record is absolutely void of any support for PennDOT’s argument that the provisions of section 3754 protect the two Hoffman letters. As mentioned above, the party exerting a privilege has the burden of establishing the applicability of that privilege to the factual circumstances at issue. Despite the opportunity to present testimony at hearing, PennDOT relied upon the affidavit of Devang Patel. That affidavit is noticeably absent of any reference to the Hoffman letters. Accordingly, I find that PennDOT has not satisfied its burden in regard to the two Hoffman letters and will allow inquiry into these pieces of correspondence.

Moreover, the language of the statutory privilege protects “accident investigations and safety studies and information, records and reports used in their preparation ....” 75 Pa.C.S. §3754(b) (West 1996). (emphasis added) The Hoffman correspondences, however, are neither actual investigations nor studies and clearly were not used “in the preparation” of such studies. The first Hoffman letter is nothing more than an acknowledgement of receipt of the Hartley letter. The second Hoffman correspondence indicates that the safety study was completed prior to preparation of the letter. Narrowly construing the provisions of the section 3754 privilege, I find that it is inapplicable to this correspondence.

PennDOT argues that allowing inquiry into this correspondence discourages PennDOT’s frank discussion of the results of its safety studies with municipal agencies. Although this argument is clearly misplaced as it relates to the first Hoffman letter, it deserves further inquiry as it relates to the second Hoffman letter. In particular, two references in that letter present intriguing issues. Specifically, the second Hoffman letter expresses the opinion that members of the district traffic unit “have concluded that the installation of oversized [s]top signs may prove to be an effective remedy to the accident problem . ..” at the intersection in question. Later, the letter opines that “[w]e do not feel rumble strips should be installed at this location at this time.” In effect, PennDOT is providing the municipality with the results of their accident investigation and safety study. While I acknowledge the concern of PennDOT in this regard, I cannot expand the statutory language of the privilege beyond the express provisions of the statutory section at issue. If the legislature had intended to protect correspondence between PennDOT and municipal agencies, they would have expressly stated so in the legislation. I cannot, by judicial fiat, expand this privilege where the legislature has itself not chosen to do so. See Hall, 744 A.2d at 1290.

Moreover, I fail to grasp how disclosure of the Hoffman letters will frustrate the legislative goal of section 3754. Allowing inquiry into the results of a traffic analysis is quite different than permitting inquiry into information, sources of information or opinions obtained during the course of conducting a study. In fact, the results of the safety study are fairly evident to anyone travelling State Route 30. The correspondence sheds no great input on any dark secret but rather is written confirmation of actual remedial efforts taken at this location.

In analyzing this issue, it is important to keep in mind that when a plaintiff is alleging that PennDOT had a governmental duty connected with the implementation of traffic controls, the burden of proof rests with the plaintiffs to establish that the pertinent device would have constituted an appropriate remedial measure. Starr v. Veneziano, 560 Pa. 650, 747 A.2d 867 (2000). The plaintiffs must prove, therefore, that an effective traffic control device exists that PennDOT did not implement even though it was reasonable to do so. Inquiry into the results reached by PennDOT, and shared with third parties, without permitting inquiry into the actual studies, neither prejudices PennDOT nor deters an unbiased, honest and accurate body of information being provided to PennDOT in effectuating a safe and efficient system of transportation. Therefore, inquiry limited solely to the correspondence(s) will be permitted.

The final correspondence at issue is the “Punt letter.” Once again, for the reasoning set forth hereinabove, this letter is not subject to protection from discovery based upon the statutory privilege of section 3754. This letter postdates any traffic study and clearly is not part of the documentation used in preparation of a traffic study. As such, I cannot extend the limitations of the statutory privilege to encompass this correspondence.

Although, I recognize the chilling effect that this ruling may have on the frequency and substance of Penn-DOT communications to municipalities or other public agencies, if protection is needed in this area, it should be specifically provided for by the legislature. Significantly, the documents in question are not internal documents but rather are correspondence forwarded to parties independent of PennDOT. In construing privileges in other areas, our appellate courts have consistently held that the protections of a privilege are waived when the privileged information is provided to a third party. See Commonwealth v. Davis, 543 Pa. 628, 632, 674 A.2d 214, 216 (1996) (statutory sexual assault counselor privilege waived where the victim provides the prosecution access to the records); Joe v. Prison Health Services Inc. 782 A.2d 24, 31 (Pa. Commw. 2001) (once attorney-client communications have been disclosed to a third party, the privilege is deemed waived); Rost v. State Board of Psychology, 659 A.2d 626, 629 (Pa. Commw. 1995) (Psychologist-client privilege may be waived where client has made information known to third persons). Like the privilege currently under scrutiny, each of the privileges addressed by our appellate courts are aimed at encouraging frank and open discussion among the respective parties. Even presuming that the correspondence at issue falls within the protections of section 3754, PennDOT’s decision to provide this information to third parties has effectively waived any protection. I will not extend protections to the disclosure of this correspondence which have not been legislatively authorized.

For the foregoing reasons, the attached order is entered.

ORDER

And now, February 13, 2003, it is ordered that the Pennsylvania Department of Transportation shall produce District Engineer Barry Hoffman for purposes of completing inquiry by the plaintiffs into the correspondence referenced in the plaintiffs’ motion to compel. It is further ordered that Mr. Bell, and any other PennDOT employee subject to deposition, shall answer questions limited to the correspondence. Said depositions shall be immediately scheduled at the convenience of the parties, however, shall take place within 45 days of this order unless the plaintiffs otherwise agree to an extension. At this time, the court renders no opinion as to whether the actual investigative files of the Pennsylvania Department of Transportation are discoverable.

      . The pleadings identify the plaintiffs as Jo Robey Crimmins and William F. Crimmins as co-administrators of the estate of Melissa L. Crimmins, deceased, and Kenneth E. Taylor Jr., and Bonnie Taylor, individually and as co-administrators of the estate of Kenneth M. Taylor, deceased, and Danielle Crimmins, a minor by Jo Robey Crimmins, her guardian.

      . The South Mountain Fair is an annual event held each fall in Adams County.

      . Plaintiffs’ complaint alleges that PennDOT was negligent, reckless and careless in:
      “(a) Failing to keep the intersection ... in a reasonably safe condition for motor vehicles;
      “(b) Failing to properly design, construct, inspect and maintain ... the .. . intersection;
      “(c) Failing to place adequate traffic control devices ... at or near the intersection,... such as ...
      “(1) Failing to have or install street lights ...;
      “(2) Failing to have or install rumble strips ...;
      “(3) Failing to install traffic signal at the intersection ... ;
      “(4) Failing to install blinking yellow or red light. .. ;

        “(5) Failing to reduce the maximum, posted speed limit on Route 30 in the vicinity of the intersection; and
      “(6) Failing to provide sufficient and safe advance notice... of the dangerous intersection. . . .
      “(d) Failing to comply with state and federal regulations and statutes pertaining to highway construction and maintenance;
      “(f) Notwithstanding prior notice of the dangerous design and condition of the intersection ... failing to remedy the existing dangerous design and condition;
      “(g) Placing a 40 mile-per-hour speed limit sign along Cashtown Road within a few hundred feet of the Route 30 intersection . .. ;
      “(h) Placing several road signs in proximity to each other along the southern approach of Cashtown Road to Route 30 and immediately before the Route 30 intersection;
      “(i) Placing a stop sign for southbound, Cashtown Road traffic on the left side of Cashtown Road and in a traffic island and behind another sign using similar or deceptively similar colors;
      “(j) Placing a stop sign for the Route 30 intersection on the right side of the southbound lane of Cashtown Road such that it is hidden from motorists approaching Route 30 around the curve of Cashtown Road;
      “(k) Finding, in a 1993 corridor study of Route 30 to identify dangerous intersections, that the Cashtown Road intersection was ‘wide-open’ with no sight obstructions;
      “(1) Failing to provide warnings to motorists of the dangerous intersection because of defendant’s belief that motorists might not obey the warnings;
      “(m) Failing to perform an adequate and reasonable study of the intersection until more accidents occurred at that intersection;” By stipulation filed with the court, ¶ ¶ 29e and 29n of the complaint were stricken.

      . Senator Punt’s letter to PennDOT is apparently not at issue and is not part of the current record.

      . The subject intersection is located within the district identified by PennDOT as engineering district 8-0.

      . Unlike the current section, the original Act only prohibited the use of information, records and reports associated with in-depth accident investigations from being “admissible as evidence in any legal action or other proceeding . . . .” 75 Pa.C.S. §3754 (West 1996), historical and statutory notes.

      . The amendments to this statute read, in relevant portion, “[i]n-depth accident investigations and safety studies and information, records and reports used in their preparation shall not be discoverable nor admissible as evidence in any legal action or other proceeding ... .” 75 Pa.C.S. §3754(b) (West 1996). (emphasis added) This amendment overrides the Commonwealth Court’s opinion in Shoyer, supra, which allowed discovery of this information.

      . Paragraph two of the February 10,1995, letter reads: “Members of the district traffic unit have completed their safety study at this intersection ....”

      . Although there may be other evidentiary objections to the admission of this proffered line of inquiry at trial, those issues are not before the court nor are they a proper basis to preclude discovery in this area. See Pa.R.C.P. 4003.1(b).

      . In Starr, supra, the Pennsylvania Supreme Court held that in order to establish a duty of care on the part of a municipality related to the installation of traffic control device, “a plaintiff must demonstrate that: (1) the municipality had actual or constructive notice of the dangerous condition that caused the plaintiff’s injuries; (2) the pertinent device would have constituted an appropriate remedial measure and (3) the municipality’s authority was such that it can fairly be charged with the failure to install the device.” Id. at 873.

      . In a supplemental memorandum, the plaintiffs have requested that the court direct PennDOT to provide access to its investigative file concerning the subject intersection. They argue that section 3754 protects only in-depth accident investigations conducted by the department “in association with the Pennsylvania State Police.” This argument apparently finds its genesis in language contained in the Pennsylvania Superior Court’s opinion in Hall, supra. Although the argument is intriguing, it is premature. Specifically, the plaintiffs have neither made a formal discovery request of PennDOT’s investigative files nor has PennDOT objected to discovery of this information. Although I suspect PennDOT will vehemently object to disclosure of its actual investigative reports, and counsel so much indicated the same during argument, I am uncomfortable with making a decision on an issue with statewide ramifications in light of the current status of the record in this matter. PennDOT has had neither the opportunity to establish a factual record nor properly brief and argue the issue. Although I recognize that judicial economy may be furthered by disposing of this issue since it is destined to arise, it is more important that a proper record be established. The parties are welcome to present a framed issue in this regard to the court so that an evidentiary hearing limited to the parameters of that issue may be scheduled.


source: Caselaw Access Project

author: LESKINEN, J.,

license: Public Domain

text:
    Commonwealth v. Richardson

      C.P. of Fayette County,
    no. 1014 of 2002.

      Mark D. Brooks, for Commonwealth.

      Jack W. Connor, for defendant.
    March 12, 2003
   LESKINEN, J.,

This matter comes before the court on two motions filed by the defendant which were consolidated for hearing by the court and heard together on February 10, 2003. The first motion seeks dismissal of the criminal complaint because of the delay in filing, while the second motion seeks disclosure of the identity of the “confidential informant” who participated in the drug purchase with the prosecuting officer. For the reasons set forth hereinafter, this court will deny the first motion; and must grant the second motion, subject to the conditions set forth.

The charges against this defendant arise from an undercover purchase of .38 grams of crack cocaine from an individual identified as the defendant on June 27,2000 in the South Hills Terrace Housing Project in Brownsville Borough, Fayette County. An as yet unidentified “confidential informant” introduced the trooper to the seller, identified the seller as this defendant, and was present during the purchase. The trooper never made another pinchase from this defendant, and no other witness is alleged to have observed the transaction or independently corroborated the identification. The trooper testified that he feared for the safety of the confidential informant if his or her identity was disclosed, without providing any specifically pertinent incident in support of that fear. The charges were filed before the district justice on June 5, 2002, which was just 22 days before the expiration of the statute of limitations for the simple possession charge, albeit three years and 22 days before the expiration of the statute of limitations for the possession with intent to deliver and the delivery charge.

Even where a criminal complaint is filed within the pertinent statute of limitations, a pre-arrest delay can be challenged as a violation of the defendant’s right to due process under the 14th Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. In order to prevail on a due process claim based on pre-arrest delay, the defendant must first show that the delay caused him or her actual prejudice, that is, substantially impaired his or her ability to defend against the charges. Commonwealth v. Scher, 569 Pa. 284, 803 A.2d 1204 (2002), cert. denied, 123 S.Ct. 1498, 2003 WL 132764, 71 USLW 3476 (3/10/03). This issue is intertwined with the second issue in the sense that defendant’s ability to recall the transaction and/or to investigate whether any other individual may have been using his name while selling crack cocaine at that time and place may have been impaired by the passage of time. However, even where there is a colorable claim of prejudice, the evidence must show that the pre-arrest delay was the product of intentional, bad faith or reckless conduct by the prosecution. Negligence, without more, is not enough. Id. The trooper testified that his reasons for delaying this arrest included his desire to protect his undercover identity and to complete various other investigations before publicly disclosing his identity as a police officer by filing this complaint. The defense presented no persuasive evidence to the contrary, which could have included other criminal complaints filed by this trooper in the area in the meantime, if any. Therefore, this court finds as a fact that there was no intentional, bad faith or reckless conduct by the prosecution relative to the pre-arrest delay in this case.

The second issue involves the defendant’s constitutional right to present a defense, and to have a reasonable opportunity to prepare one. In this case, defense counsel asserts that other individuals in the vicinity could have been using the defendant’s name while selling crack cocaine, and further asserts that the confidential informant could provide exculpatory testimony. In order to determine whether or not the confidential informant could exculpate the defendant, however, counsel obviously needs to know the identity and address of the confidential informant. It is entirely possible that the motion to discover the confidential informant’s identity is a device to test the Commonwealth’s commitment to this particular informant, and/or to allow the intimidation of the informant prior to trial. If the Commonwealth is ordered to disclose and refuses, the case is dismissed; while early disclosure could lead to intimidation and an informant testifying for the defense out of fear. Either way, the device is a success for the defense. Conversely, after disclosure is ordered, the informant may feel less need to avoid testifying, and may voluntarily testify for the prosecution, corroborating the trooper’s identification of the defendant.

The guidelines governing disclosure are as follows:

“We believe that no fixed rule with respect to disclosure [of the confidential informant’s identity] is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstance of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967) (quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).

This balance is initially weighted toward the Commonwealth, which holds a qualified privilege to maintain an informant’s confidentiality to preserve the public’s interest in effective law enforcement. Commonwealth v. Bing, 551 Pa. 659, 713 A.2d 56, 58 (1998). “However, the balance tips in favor of disclosure where guilt is found solely on police testimony, from a single observation [and] testimony from a disinterested source, such as the informant, is available.” Id. (citing Carter, 427 Pa. at 61, 233 A.2d at 287).

Before the informant’s identity must be revealed, however, the accused must show the information is material to the defense and the request is reasonable. The defendant need not show exactly what the informant will say [how could he?], but he must demonstrate a reasonable possibility that the informant could give evidence that would exculpate the defendant. Commonweatlh v. Roebuck, 545 Pa. 471, 478, 681 A.2d 1279, 1283 (1996).

The appellate cases reviewed by this court do not make clear when the defense may seek disclosure, nor whether the defense has the burden of presenting evidence in order to require disclosure. Some of the appellate cases obviously deal with disclosure at the time of trial, after the defense has already presented evidence of misidentification. Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77 (1994) (where there was a pre-arrest delay of seven months that could have impaired the officer’s memory, where the defendant testified that it was not him and there was only a single viewing by the sole prosecution witness, disclosure was required). However, given that the defense is never required to prove innocence, this court is unwilling to wait to see what testimony the defense offers. What if the defense offers no testimony? The defense could certainly argue misidentification anyway. It is realistically the only available defense.

At the hearing in this matter, it was established that the trooper had a pager number for the seller, but there was no evidence tying the pager to this defendant. Moreover, the complaint had no address for the defendant. Finally, the trooper agreed that it was common for the sellers of illegal drugs to use the names of other local persons during their transactions as a way of protecting themselves. The trooper testified to only one transaction with this defendant, and stated that he verified identity using a driver’s license picture, but he could provide no other witness to corroborate his identification.

Under these circumstances, the above-cited cases require that disclosure be made before the evidence in the case is closed. For the disclosure to be meaningful, it must be made in good faith, meaning that it must allow the defense adequate time to investigate the current whereabouts of the informant so that he can be subpoenaed by the defense; or that the prosecution must produce the informant at trial for questioning. By withholding disclosure until at or about the time of trial, the opportunity to intimidate the informant is limited, and retaliation after the informant’s testimony is less likely than intimidation beforehand. In either event, the defense must also have reasonable access to the informant’s criminal history in order to allow for impeachment.

For all of the above reasons, this court enters the following:

ORDER

And now, March 12,2003, defendant’s motion to dismiss is denied. The defendant’s motion for discovery is granted and the Commonwealth is ordered to provide the name and address of the confidential informant to defense counsel forthwith, together with the informant’s current criminal history and other exculpatory impeachment material; or in lieu thereof to subpoena and produce the informant and the aforesaid impeachment material at the time of trial.


author: HERMAN, J.,

text:
    Rubeck v. Milroth

      C.P. of Fulton County,
    no. 83-2001-C.

      James W Harris, for plaintiffs.

      Sarah W. Arosell, for defendant Milroth.
    February 6, 2003
   HERMAN, J.,

INTRODUCTION

Before the court is a motion for sanctions filed by defendant W.L. Milroth M.D. in this action alleging medical malpractice. Plaintiffs are David and Larry Rubeck, co-executors of the estate of their father, the decedent Luther Rubeck Jr. Defendant now seeks to preclude plaintiffs from offering any testimony at trial concerning those matters sought in discovery which remain unanswered despite numerous requests and court directives. Defendant also seeks counsel fees incurred to file several motions for sanctions in connection with the unproduced discovery. Plaintiffs have answered the motion. This matter is ready for decision.

PROCEDURAL HISTORY

Plaintiffs filed a praecipe for a writ of summons on November 1,1999. Defendant served discovery requests on November 16,1999, specifically, interrogatories, expert interrogatories and a request for production of documents. In response to a rule, plaintiffs filed their complaint on February 22, 2000 alleging defendant was negligent in providing treatment to the decedent who died of complications from diabetes on September 25, 1998. Defendant was the decedent’s treating physician and it is alleged he failed to bring the decedent’s diabetes under control during the three and one-half years before the decedent’s death.

On March 5, 2001, defendant filed a motion to compel plaintiffs to produce responses to the discovery which had remained unanswered for 15 months. The discovery sought information about the decedent’s prior medical history, any relevant written statements and exhibits, the identity of any lay witnesses, and the identity, qualifications and substance of the facts and opinions to which plaintiffs’ experts were expected to testify at trial. Defendant had been provided with only certain medical records despite defense counsel’s numerous informal requests. Defendant also sought court assistance in setting plaintiffs’ depositions because plaintiffs through their counsel had repeatedly failed between April 2000 and March 2001 to respond to requests made by defense counsel to schedule depositions. The court issued an order on March 19, 2001 directing plaintiffs to provide the requested information and documents, as well as deposition dates, within 20 days of April 15, 2001 or to show cause why answers and/or documents were being withheld. Plaintiffs were to file a written answer to the motion for sanctions. The order also stated that failure to comply could result in sanctions as provided in Pa.R.C.P. 4019.

Meanwhile, pursuant to opinion and order of March 15,2001, the court transferred the case to Fulton County after argument on defendant’s preliminary objections to venue. The court also directed plaintiffs to file an amended complaint within 20 days of receipt of the order.

Defendant filed a motion for judgment non pros and a motion for sanctions on June 12, 2001. The grounds for the motion were plaintiffs’ failure to provide discovery by May 15, 2001 as directed in the March 19, 2001 order and their failure to file an amended complaint within 20 days pursuant to the March 15, 2001 order. The court issued a 20-day rule on plaintiffs to show cause why the motion for judgment non pros should not be granted. The court reserved ruling on the motion for sanctions until plaintiffs had a chance to answer the rule.

Plaintiffs filed an amended complaint on July 17,2001. They also filed an answer to the motion for sanctions that same date. Plaintiffs’ counsel explained that his failure to file the amended complaint sooner was the result of his illness and hospitalization between January 25 and April 15, 2001. He also objected to the interrogatories. Those objections were untimely at that point, however. Plaintiffs’ counsel averred that he and defense counsel had agreed that providing all medical records and bills would satisfy the request for production of documents. In addition, plaintiffs’ counsel averred that his physicians advised him to stop practicing law and he was in the process of transferring the case file to another attorney, Darryl Cunningham, Esquire, when the motion for sanctions was filed. He asked the court to deny the motion and grant a 30-day extension to answer the remaining discovery and file objections and also to set a date for a. scheduling conference. Although plaintiffs’ answer to the motion for sanctions was filed with the prothonotary, it did not feature a proposed face order and plaintiffs’ counsel did not ensure that the answer and request for relief was brought to the court’s attention. The court therefore did not rule on defendant’s motion for sanctions nor did we grant an extension or set a scheduling conference date as requested by plaintiffs’ counsel. The motion for judgment non pros also lay dormant at that point.

On August 10, 2001, defendant filed an answer to the amended complaint along with new matter. Plaintiffs filed a reply to new matter on September 7, 2001.

By the end of September 2001, defense counsel still had not yet received plaintiffs’ counsel’s withdrawal and an entry of new counsel’s appearance as promised in plaintiffs’ July 17,2001 pleading. Attorney Cunningham told defense counsel upon her direct inquiry that he would not be taking the case. Around the same time, plaintiffs’ counsel told defense counsel that plaintiffs were considering dropping the case. Still attorney of record for plaintiffs he continued to ask for professional courtesies as to scheduling plaintiffs’ depositions which defense counsel granted. Finally, a deposition date of December 3, 2001 was set. Even at that point, plaintiffs had not yet answered the outstanding discovery despite the March 19, 2001 order.

Only three days before the depositions, Attorney James W. Harris, Esquire, emerged as possible counsel for plaintiffs and cancelled the depositions until he could enter his appearance and familiarize himself with the case. This prompted another defense motion for sanctions on January 9,2002. Defendant asked the court to preclude plaintiffs from offering any evidence concerning the topics raised in the discovery requests and also asked for counsel fees in connection with having to file the motions for sanctions. The court issued an order on January 18, 2002 directing plaintiffs to appear for depositions and to complete discovery, including their expert report, within 20 days (February 7, 2002). Defendant’s request for counsel fees was denied without prejudice.

On February 8,2002, the day after discovery was due, plaintiffs’ current counsel moved for an extension until April 15 to comply with discovery and May 15 to provide the expert report. He also finally entered his appearance. In response, defendant on April 25,2002 filed an opposition to the extension and also filed another motion for sanctions. Before the court could issue a ruling, on May 15, 2002, one month past the discovery deadline and the very deadline date for providing the expert reports, plaintiffs’ counsel filed a motion requesting an extension until July 30 to produce discovery and until August 30 to provide the expert report. According to the motion, this extension was necessary because plaintiffs’ original counsel did not turn over the entire file to current counsel until mid- April. The court granted the extension on May 28, 2002 on the condition that plaintiffs provide complete answers to all outstanding discovery no later than July 30 and provide an expert report no later than August 30. The court also stated in the order that no objections to discovery would be entertained and dismissed any objections already filed as untimely.

On August 23, 2002, plaintiffs’ counsel filed yet another motion for an extension until October 15 to provide an expert report. He averred that he had answered the outstanding interrogatories and that plaintiffs were deposed on August 8 but that he had been unable to obtain an expert report because of the “voluminous nature of the medical records.” He represented that he was having difficulty getting the cooperation of a physician who initially agreed to review the medical records and that another doctor had agreed to review some of those records. The court returned the motion to plaintiffs’ counsel on September 4,2002 for failure to seek concurrence from defense counsel and the failure to attach a verification. 39 Jud.Dist.C.R. 39-206.1.2; 39-206.1.3; Pa.R.C.P. 206.3. In the interim, defense counsel answered the motion and based on that answer the court on September 9 denied the motion to enlarge the time to provide an expert report. One reason for the ruling was defense counsel’s averment that it had been represented to her at the time of attorney transfer that plaintiffs had already retained an expert to review all the medical records and plaintiffs’ new counsel had indicated he would not have taken the case in the first place without such expert input.

Defense counsel filed the current motion for sanctions on September 23, 2002 alleging that plaintiffs have still not provided complete answers to written discovery or their expert report. In addition, defendant himself has not yet been deposed, not having been requested to sit for a deposition by plaintiffs’ counsel. Defense counsel points out that plaintiffs’ answers (served July 22, 2002) to defendant’s interrogatories are incomplete in violation of the May 28, 2002 order. Defense counsel also notes that expert interrogatories remain unanswered as well despite the August 30 deadline set by that same order. Defendant asks the court to preclude plaintiffs from offering any testimony at trial concerning those matters addressed in the pertinent discovery requests and responses. This would include expert medical testimony. Defendant also seeks attorney fees in connection with the current motion as well as the motions filed January 9,2002, April 25, 2002, August 28, 2002 and September 23, 2002.

Plaintiffs deny they have deliberately and consistently disobeyed the court’s orders or hindered the defendant’s ability to prepare a defense. Plaintiffs contend it was defense counsel’s limited availability for depositions in June and July which caused plaintiffs’ depositions to be taken on August 8, a date less than three weeks before the expert report deadline of August 30. Plaintiffs maintain that they have now provided full answers to discovery, though they admit they have not yet provided an expert report. Finally, plaintiffs’ counsel argues that plaintiffs should not themselves be sanctioned because their prior counsel failed to move the case.

DISCUSSION

The imposition of sanctions is within the sound discretion of the trial court. Conner v. Tom, 811 A.2d 6 (Pa. Super. 2002); Pompa v. Hojnacki, 445 Pa. 42, 281 A.2d 886 (1971). Sanctions are governed by Pa.R.C.P. 4019 which provides:

“(a)(1) The court may, upon motion, make an appropriate order if
“(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005
“(viii) a party or person otherwise, fails to make discovery or obey an order of the court respecting discovery ...
“(c) The court, when acting under subdivision (a) of this rule, may make
“(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition ...
“(5) such order with regard to the failure to make discovery as is just.”

The purpose of the rule is to ensure timely and adequate discovery as well as compliance with court orders. The court must balance the need to move the case to a prompt conclusion against the substantive rights of the parties. Poulos v. PennDOT, 133 Pa. Commw. 322, 575 A.2d 967 (1990). The court must weigh several factors in deciding whether sanctions are warranted and if so, what sanctions are appropriate. Those factors include the nature and severity of the violation, the defaulter’s willfulness or bad faith, prejudice to the opposing party, and the importance of the precluded evidence in light of the failure to comply. Croydon Plastics Co. Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997). Prejudice occurs where there is a substantial diminution in the opposing party’s ability to defend himself. Stewart v. Rossi, 452 Pa. Super. 120, 681 A.2d 214 (1996). Prejudice can also be found where a lawsuit casts a shadow over a defendant’s reputation during a long period of another party’s noncompliance with discovery rules and court orders. Conner, supra.

The exclusion of expert testimony is a proper remedy where a party fails to disclose the nature of that testimony. Pa.R.C.P. 4003.5:

“(a)(1) A party may through interrogatories require
“(a) any other party to identify each person whom the other expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
“(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.
“(b) An expert witness whose identity is not disclosed in compliance with subdivision (a)(1) of this rule shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.”

The remedy of exclusion is particularly appropriate where the noncompliance is both a violation of the discovery rules as well as an order of court compelling discovery. Miller Oral Surgery Inc. v. Dinello, 416 Pa. Super. 310, 611 A.2d 232 (1992); Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986). When precluding such evidence will make it difficult for a plaintiff to prove his case, the court may do so only if that remedy is commensurate with the discovery violation and/or the failure to abide by an order of court. Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286 (1991). Any such difficulty of proof is only one factor in the analysis. Another factor as mentioned above is “the stigma and cloud cast on the defendant’s name” during the long period of noncompliance. Stewart, supra; Conner, supra.

In a medical malpractice action, a plaintiff’s expert report which specifies the nature of the alleged negligence is central to a defendant’s ability to prepare his defense. Without that report, a defendant cannot determine what evidence he must gather and what witnesses he must consult in order to adequately defend himself against a plaintiff’s accusations. Courts view this as a considerable handicap to a defendant and sufficient justification for preclusion even where such preclusion leads ultimately to summary judgment in a defendant’s favor. Conner supra; McSloy v. Jeanes Hospital, 376 Pa. Super. 595, 546 A.2d 684 (1988).

In Brophy, supra, the plaintiffs alleged the defendant physician had performed a substandard tubal ligation. The defendant served expert interrogatories on the plaintiffs, which went unanswered despite several attempts to have them answered, including a court order. After moving for sanctions, the court ordered that plaintiffs would be precluded from introducing any testimony or other evidence pertaining to the subject matter of the expert interrogatories. The delay of nine months was too long to ignore. The plaintiffs’ only explanation was their difficulty finding an expert. A motion for summary judgment ensued which the court granted because expert testimony was needed to establish the standard of care.

Similarly, in Conner, supra, the defendant physician filed expert interrogatories and a motion for discovery of documents. Receiving no answers or objections, he moved to compel and for sanctions. The court directed the plaintiff to provide an expert report as well as answers to expert interrogatories. No material was provided as ordered, prompting another motion for sanctions. The court precluded the expert medical testimony pursuant to Rule 4003.5(b) and 4019, noting the plaintiff had been unable to find an expert six years after the fact who was willing to opine that malpractice had occurred, leaving the defendant with no way of learning the specific nature of the claim against him. In precluding the expert testimony (which ultimately led to summary judgment), the court considered that the time lapse could make it difficult for the defendant to locate witnesses and other evidence and the located witnesses might not recall the incident clearly six years after the fact. The court also awarded counsel fees and delay damages.

The instant plaintiffs commenced this action in 1999 and it has been their burden to move the case toward trial. Unfortunately, the record clearly shows plaintiffs and/or their counsel have neglected the case despite defense counsel and the court extending them every fairness and opportunity in matters of discovery and scheduling. A clear pattern emerges of delay and noncompliance with discovery rules. In addition, plaintiffs have repeatedly failed to comply with this court’s orders.

Defendant was forced to file a motion to compel discovery on March 5, 2001 to obtain discovery which was overdue by 15 months despite numerous requests made to plaintiffs’ prior counsel between April 2000 and March 2001. Plaintiffs also did not file a timely amended complaint as directed by the March 15,2001 order disposing of preliminary objections, forcing defendant to move for compliance. The order of March 19, 2001 gave plaintiffs until May 15, 2001 to provide the discovery. They did not fully comply with this order and supplied only some of the discovery by the time they answered a motion for sanctions.

Plaintiffs’ answer to the motion offered the poor health of plaintiffs’ prior counsel as a basis for the delay and their failure to comply with this court’s orders. In the following months, defense counsel patiently and repeatedly extended professional courtesies to plaintiffs’ counsel who had lingering health problems as well as vacation plans. All the while, defense counsel was assured that new counsel would be taking over the case shortly. Defense counsel then learned on her own that proposed new counsel would not in fact be taking the case. Plaintiffs’ counsel also told her the case might be dropped altogether. All this had the effect of stalling defense counsel from filing another motion for sanctions and/or non pros due to plaintiffs’ continued failure to abide by the discovery deadlines in the rules of civil procedure, as well as the court’s March 19, 2001 order.

After many professional courtesies from defense counsel, depositions were finally set for December 3, 2001. Only three days before they could be taken, defense counsel learns of potential new counsel for plaintiffs and the plaintiffs’ cancelling of the depositions. Defendant was again compelled to move for sanctions and the court on January 18,2002 set a discovery deadline of February 7. Prior counsel had not withdrawn nor had new counsel entered his appearance at the time the court issued its January 18 order. New counsel also waited until February 8 — the day after the court-ordered deadline — to seek an extension to May 15, 2002 and to finally enter his appearance. Despite defendant’s opposition, we again granted plaintiffs another opportunity to comply with the discovery rules and our March 19, 2001 order. When plaintiffs failed to meet their own requested deadline, we once again granted them until July 30 and August 30 to complete discovery, the very deadlines they themselves requested, despite defendant’s opposition. Those deadlines likewise went unmet.

Plaintiffs’ current counsel urges the court not to penalize his clients for the lack of attention which their prior counsel devoted to this case. This argument rings hollow. Plaintiffs have in fact received the benefit of this court’s fairness on many occasions, as well as the considerable patience of the opposing party. Any failures of plaintiffs’ prior counsel to attend to this case is only one factor to be weighed here. Vorhauer v. Miller, 311 Pa. Super. 395, 457 A.2d 944 (1983).

In addition, we are troubled by the efforts of plaintiffs’ current counsel to blame defense counsel for the fact that discovery remains incomplete. Current counsel knew or should have known he was inheriting a case already rife with delay and neglect which is evident from even a cursory review of the file. Current counsel himself twice waited until the last minute and even past court-ordered deadlines to enter his appearance and to request additional time to comply with our orders.

Plaintiffs claim they have fully answered all non-expert interrogatories. The record reveals this is patently inaccurate. Interrogatories nos. 10,11,12,17 and 19 remain unanswered despite the clear mandate of this court’s May 28, 2002 order requiring plaintiffs to provide full and complete answers to the outstanding discovery by July 30, 2002. Again we note July 30 was a deadline requested by plaintiffs themselves through their current counsel.

After three years of litigation, defendant still does not know the precise parameters of the allegations of malpractice against him. Fairness dictates he should be relieved of having to continue to defend against an action in which plaintiffs have been unable to retain an expert willing to opine that he committed any professional negligence in his treatment of plaintiffs’ decedent. Furthermore, the court is fully justified in sanctioning plaintiffs for their failure to shoulder their burden to move this case forward and to comply with this court’s orders.

The court will grant defendant’s motion for sanctions. An appropriate order is attached.

ORDER

Now February 6, 2003, the court hereby grants the motion for sanctions filed by the defendant William Milroth. The plaintiffs are precluded from offering any testimony, including expert medical testimony, as to the subject matter addressed in the unanswered discovery requests and responses, against the defendant at the time of trial. Counsel for the defendant may submit to the court billing documentation pertaining to his request for attorney fees in connection with filing the motions for sanctions. It is further ordered that the prothonotary file and make a part of the record the defendant’s interrogatories and the plaintiffs’ answers thereto.

      . Rule 4006(a)(2) requires the party served to answer each interrogatory completely unless that party objects to the interrogatory and states the reason for the objection. The answering party must serve a copy of the answers and/or any objections within 30 days of service of the interrogatories. Rule 4009.12 requires the party served with a request for production of documents to respond and/or produce the documents or things sought within 30 days of service of the request.

      . Plaintiffs did not file a separate answer to the rale concerning judgment non pros even though that was the motion which the court specifically directed them to answer.

      . We note the document purporting to be plaintiffs’ original counsel’s withdrawal and Attorney Harris’ entry of appearance is unusual in that original counsel did not sign his own name. Instead, Attorney Harris signed it on original counsel’s behalf. Although the court wonders whether this constituted a valid withdrawal, defendant does not press this issue.

      . In addition to their answer to the motion for sanctions, plaintiffs filed a separate motion to strike the motion for sanctions essentially reiterating their response to that motion. We here consider both sets of motions and answers along with the entire record.

      . Defendant’s interrogatories and plaintiffs’ partial answers were supplied by plaintiffs’ counsel at the court’s request. They will be made part of the record in the attached order.

      . In addition to the case authority cited above, this court is aware of the recent decision in Wolloch v. Aiken, 2002 WL 31914696 (Pa. December 31, 2002). The Supreme Court affirmed the trial court’s grant of summary judgment against a plaintiff who failed to make out a prima facie case of medical malpractice for want of timely-submitted expert reports. The Supreme Court found the Superior Court had reversed the trial court under the erroneous impression that the trial court had abused its discretion in dismissing the case as a discovery sanction for noncompliance with a case management order set down by a local rule of court. The Supreme Court found that the trial court had not in fact dismissed the action as a discovery sanction and therefore the Superior Court’s analysis using case law which governs discovery sanctions had been misplaced. The Supreme Court ruling in no way undermines our conclusions in the case at bar.


author: ASHWORTH, J.,

text:
    Rice v. Mandalakas

      C.P. of Lancaster County,
    no. CI-99-12019.

      William A. Atlee Jr. for plaintiff.

      Linda Porr Sweeney, for defendants Mandalakas and Cardiac Consultants.

      Cathy A. Wilson, for defendant St. Joseph Hospital.
    December 16, 2002
   ASHWORTH, J.,

Plaintiff brought suit against defendants in a medical malpractice case that was heard by a jury from July 17 through July 27, 2002. After deliberation the jury concluded that defendant Nicholas J. Mandalakas M.D. was not negligent in the treatment of plaintiff, and, consequently, the jury did not award damages against defendant Mandalakas and against defendant St. Joseph Hospital. Plaintiff filed a post-trial motion to set aside the jury’s verdict and obtain a new trial.

I. FACTUAL BACKGROUND

Plaintiff presented to the emergency department at defendant St. Joseph Hospital on November 28, 1997 when he complained of chest pain, nausea and vomiting. Defendant had a prior history of reflux esophagitis. The emergency room physician, Russell Mazda D.O., ordered several studies including chest x-rays and cardiac enzymes. Dr. Mazda also requested an evaluation of plaintiff by Cardiac Consultants PC.

From the evening of November 28, 1997 until 6 a.m. on November 29,1997, plaintiff underwent five electrocardiograms (EKGs). Dr. Nicholas Mandalakas of Cardiac Consultants reviewed the strips for the EKGs performed, and the EKGs showed a segment elevation. Dr. Mandalakas had plaintiff undergo a stress echo study on the morning of November 29,1997, and the results were inconclusive. Dr. Mandalakas discharged plaintiff with instructions to limit his activities and to return as an outpatient for a nuclear stress test on December 5, 1997. Despite instructions to limit physical activity, plaintiff went deer hunting between the time he was discharged and the time he was to return for additional testing.

On December 5, plaintiff did return to St. Joseph Hospital for a stress test and myocardial perfusion study. The stress test was performed by Dr. Johnson of Cardiac Consultants, and Dr. Johnson interpreted the EKG strips obtained during the test as normal. The other portion of the test, read by Dr. Berry, showed an abnormality. At the conclusion of the test, plaintiff was permitted to return home.

The following day, on December 6, 1997, plaintiff again went deer hunting. Later that evening, plaintiff suffered an acute myocardial infarction with acute cardiac and respiratory arrest.

As a result of the cardiac arrest and respiratory failure of December 6, 1997, plaintiff was placed on a ventilator until December 9,1997. Plaintiff then went to a rehabilitation unit where he stayed until December 19,1997. Plaintiff continued with rehabilitation until April 13,1998 with various medical providers. Plaintiff eventually returned to his prior place of employment without a pay reduction.

Plaintiff then filed a complaint alleging medical malpractice on the part of defendants. Plaintiff made several claims in his complaint, most notably the fact that as a result of the cardiac-respiratory arrest, plaintiff suffers from severe cognitive impairment. A claim was also initially brought on behalf of plaintiff’s wife, but that cause of action was voluntarily discontinued by plaintiff after a pretrial ruling.

Plaintiff filed an omnibus motion in limine seeking to exclude certain evidence from the trial including, inter alia, evidence of plaintiff’s prior alcohol and marijuana abuse and plaintiff’s alleged domestic violence and abusive personality. After considering the respective positions of the parties, this court concluded that evidence regarding plaintiff’s alcohol and marijuana use was permissible, and that evidence of his alleged aggressive and/ or abusive personality was admissible.

The rationale for the ruling was that plaintiff was attempting to argue that the heart attack and its resulting consequences adversely affected Plaintiff’s cognitive abilities such as his attention span, his learning skills and his memory. To the extent that plaintiff’s lifestyle, independent of any alleged negligence, impacted plaintiff’s cognitive abilities because of the use of alcohol and/or marijuana, a jury could view that as relevant to the issue of damages. With respect to the aggressive personality, this court held such evidence could be admissible. This court limited its ruling on the point, noting that the evidence of an aggressive personality might only be relevant if plaintiff opened the proverbial door first.

Plaintiff then filed a more specific motion in limine addressing solely the issue of marijuana use. Although this court agreed that the admissibility of marijuana use should be evaluated independently from the admissibility of alcohol use, the motion in limine seeking to exclude plaintiff’s marijuana use was denied.

After deliberation, the jury came back with a finding that defendants were not negligent. Consequently, there was no decision rendered on the issue of damages or the apportionment of fault among defendants.

Plaintiff makes three arguments on appeal from the jury’s finding: (1) that this court erred by admitting evidence regarding plaintiff’s allegedly abusive personality; (2) that this court erred by admitting evidence of plaintiff’s marijuana and alcohol use; and (3) that this court erred by failing to hold a hearing to determine whether defendants’ evidence regarding alleged marijuana use and its impact on an individual’s cognitive ability met the requisite level of certainty. Defendants dispute all of plaintiff’s claims on appeal and argue in their post-trial briefs that this court erred by failing to submit the issue of contributory negligence to the jury and by limiting one of defendants’ experts in his testimony based on the language contained in the expert’s report.

II. STANDARD OF REVIEW

The purpose of the Pennsylvania Rules of Evidence is to promote the admission of all relevant evidence unless there is a specifically enumerated rule barring its introduction. Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997); see Pa.R.E. 402 and explanatory note (providing that relevant evidence is generally admissible). Evidence is relevant when it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pa.R.E. 401.

It is a fundamental tenet of Pennsylvania jurisprudence that a trial court has wide discretion in ruling on the relevancy of evidence. Dunkle v. West Penn Power Co., 400 Pa. Super. 334, 583 A.2d 814 (1990) (subsequent history omitted). A trial court ruling on the admissibility of evidence will not be reversed absent an abuse of discretion or an error of law. Id.

Furthermore, with respect to analyzing a request for a new trial, the so-called “harmless error” rule applies. In order for a new trial to be granted, an evidentiary ruling must not only be erroneous, but it must also be harmful. Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 687 A.2d 1157 (1997). Merely because an irregularity occurred in the trial or another trial judge would have ruled differently does not suffice to meet the threshold; rather, it is incumbent upon the moving party to demonstrate that he or she suffered prejudice from the mistake by the trial court. Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000).

III. LEGAL ANALYSIS

In a global response to all of plaintiff’s issues raised on appeal, defendants first argue that plaintiff fails to make any argument that goes to the issue of the culpability of defendants. Instead, plaintiff’s arguments focus on the issue of damages, something irrelevant when a jury returns a verdict of no negligence. Defendants cite Hart v. W.H. Stewart Inc., 523 Pa. 13, 564 A.2d 1250 (1989) in support of their argument and quote the following passage: “an erroneous evidentiary mling on damages, in a case where the jury has found for the defendant on the liability issue, is harmless and does not entitle the plaintiff to a new trial.” Id. at 16, 564 A.2d at 1250. (citations omitted)

In Hart, a witness testified that the plaintiff received workers’ compensation benefits as a result of an injury. At trial, the plaintiff called a witness as a representative of his employer and the witness testified, over objection, that the employee received workers’ compensation benefits. The jury found in favor of the manufacturer on the liability issue. On appeal, the Superior Court reversed the decision and granted a new trial on the grounds the testimony elicited was in violation of the collateral source rule. The Supreme Court reversed the Superior Court’s finding on the grounds that because the employee failed to assign error to any issues as to the jury’s finding on the issue of liability, any legal error as to damages was harmless. Defendant St. Joseph Hospital quotes the following passage:

“[The employee] makes no assertion of legal error by the trial court regarding any issue of liability. He does not claim that at trial he presented sufficient facts to justify a finding of liability in his favor. Instead, [the employee] relies on the claim that the cross-examination of his witness should not have been permitted, maintaining that this error was the crucial factor in the jury’s verdict against him. . . . [The employee] overlooks the obvious fact that because he is not challenging the jury’s finding that no liability existed, the assertion of prejudice by the introduction of the challenged evidence is irrelevant. To constitute reversible error, a ruling on evidence must be shown not only to have been erroneous but harmful to the party complaining.” Id. at 16, 564 A.2d at 1252. The Pennsylvania Supreme Court succinctly summarizes the issue by stating “[bjefore the issue of damages is relevant, the jury must determine the question of liability.” Id. at 17, 564 A.2d at 1252.

The plaintiff in Hart argued that although the collateral source issue primarily related to damages, the admission of the evidence prejudiced the trial and was so pervasive as to cause the jury to reach a different conclusion with respect to the issue of liability. Id. at 16, 564 A.2d at 1252. The Pennsylvania Supreme Court found such an argument unavailing while noting that “[t]he magnitude of the injury sustained may never be permitted to overcome a plaintiff’s failure to establish a defendant’s liability.” Id. at 17, 564 A.2d at 1252.

In this case, plaintiff assigns-error to this court’s decisions regarding the evidence of plaintiff’s personality, plaintiff’s marijuana use, and this court’s failure to hold a hearing to determine whether defendants’ evidence regarding plaintiff’s marijuana use and its impact on plaintiff’s faculties met the requisite level of certainty under the Pennsylvania Rules of Evidence. Each of these allegations relate to the proper measure of damages in this case — they do not address the threshold question of liability. None of plaintiff’s allegations address the treatment provided by either Dr. Mandalakas or St. Joseph’s Hospital. Without a finding that either defendant was legally responsible for plaintiff’s injuries, any testimony about his activities is irrelevant. Although some factual distinctions exist, Hart is dispositive to the issues raised on appeal before this court. Without a finding of liability, plaintiff’s claims on appeal are meritless.

Assuming, for the sake of argument, that plaintiff’s claims do go to the issue of negligence, rather than merely damages, they will each be addressed in turn. Plaintiff first argues on appeal that this court abused its discretion by permitting defendants to cross-examine plaintiff’s witnesses on the issue of plaintiff’s personality, specifically his aggressive and abusive behavior (referred to generically as “plaintiff’s personality”). It is worth noting initially that in civil cases evidence of the character or personality generally of the parties is not admissible except when character or personality is directly at issue. See Pa.R.E. 404-405.

Plaintiff argues that his personality was not an issue in the case as the case “involved a claim of medical negligence which resulted in brain damage.” Plaintiff’s brief in support of post-trial relief, p. 7. Plaintiff asserts that his character was never at issue and that defendants’ references to plaintiff’s personality during the trial “besmirched Mr. Rice and unfairly prejudiced his case.” Id.

Both defendants dispute plaintiff’s contentions and proffer two specific contrary arguments: first, defendants argue the issue has been waived; secondly, defendants argue that plaintiff’s own witnesses opened the door to testimony regarding plaintiff’s personality.

This court finds that defendants’ waiver argument as to the issue of alcohol use and abusiveness unpersuasive. Plaintiff specifically reserved the right in his initial post-trial brief to challenge the evidence pertaining to plaintiff’s alcohol use in footnote 10 of its brief in support of plaintiff’s motion for post-trial relief. Id. at p. 5 n. 10 (asserting that “plaintiff also contends the court erred by allowing evidence of alcohol use; however, plaintiff will focus this brief on the issue of marijuana use due to the fact that the evidence regarding marijuana use was far more prejudicial than alcohol use evidence”). In light of that specific language in plaintiff’s brief and the motions filed by plaintiff’s counsel pretrial, this court does not believe those objections were waived. See Miller v. Peter J. Schmitt & Co. Inc., 405 Pa. Super. 502, 512, 592 A.2d 1324, 1329 (1991) (subsequent history omitted) (“Where a motion in limine has been argued and denied before trial, it is unnecessary for the movant’s counsel to renew his or her objection during trial.”).

Defendants’ second contention is that the evidence of plaintiff’s alcohol and marijuana use is otherwise admissible because plaintiff placed his personality at issue, and this court agrees with such an assertion. As noted in Dr. Mandalakas’ brief, plaintiff’s witnesses in this case referenced, not infrequently, plaintiff’s “personality change” after the injury. Plaintiff’s witnesses also testified generally about how this change impacted his long-range work prospects. Plaintiff cannot open the door to such testimony on direct examination and then prohibit defendants from addressing the issue on cross-examination.

Dr. Michael Alexander, plaintiff’s neurology expert, testified about Mrs. Rice’s observations of a personality change, and also his impressions of plaintiff. (Notes of Testimony, pp. 225-28.) As plaintiff suggests in his reply brief, there is some ambiguity as to the proper interpretation of “personality change” in this context. Plaintiff argues “evidence regarding a plaintiff’s cognitive function and the job related skills, which was the only ‘personality’ evidence offered by plaintiff, does not refer at all to ‘personality’ evidence regarding peacefulness or lack thereof.” (Plaintiff’s reply brief, p. 3.)

However, plaintiff did explicitly differentiate between cognitive function and “personality change” during direct examination when the following exchange took place with Dr. Michael Alexander, plaintiff’s neurology expert:

“Q: The matter of personality change, you talked to us about memory, you talked to us about executive function.
“A: Uh-huh.
“Q: The matter of personality change, now, this is something a little different?
“A: Yes. It’s a little different. During my interview with Mr. Rice, I would push him about things that might concern him or worry him. And by and large, he didn’t have any particular concerns . . . severe apathy, lack of interest, lack of motivation or intent, is a kind of personality change which can follow some brain injury.” (N.T., pp. 226-27.)

Thus, it is safe to say plaintiff’s evidence of personality change was not solely related to executive function but also plaintiff’s overall approach to life generally, and more relevantly to this case, plaintiff’s overall approach to employment.

The crux of Dr. Alexander’s testimony was that the injury suffered by plaintiff was such that it substantially impaired all aspects of his cognitive functioning. Dr. Alexander then reviewed plaintiff’s employment performance evaluations, both before and after the injury. After reviewing the evaluations, Dr. Alexander concluded that plaintiff’s cognitive functioning, pre-injury, was good. {Id. at p. 299.)

Evidence of plaintiff’s personality is relevant given the subsequent testimony of plaintiff’s supervisor, Logan Harr. Mr. Harr testified at length about plaintiff’s performance on the job and his abilities before and after the injury. Mr. Harr read to the jury a performance evaluation in which he stated that he “saw a potential for more responsibility in the future” (N.T., p. 319), but one of plaintiff’s weaknesses, comparably speaking, was his communications skills. {Id. atp. 318.)

On cross-examination of Mr. Harr, counsel for Dr. Mandalakas explored plaintiff’s work history and potential for further promotion by delving into his prior work-related behavior which included instances of alleged abuse by his fellow employees. (Id. at p. 340.) Mr. Harr admitted that plaintiff, as a supervisor, had problems with handling his employees and Mr. Harr agreed when asked if “Mr. Rice’s interpersonal skills may very well have been a deterrent to him moving up any further than where he was in 1997 [before the injury].” (Id. at p. 342.) There was also testimony elicited which asserted that plaintiff “had difficulty controlling his emotions” (id. at p. 343) which undoubtedly affected his ability to progress in the company.

Additionally, plaintiff’s wife testified that plaintiff was docile and generally emotionally “flat” or reserved since the injury. The testimony was given, presumably, to establish the extent and nature of plaintiff’s injuries, and it was consistent with the prior testimony of Dr. Alexander and Mr. Harr.

The testimony of Dr. Alexander, Mr. Harr and Mrs. Rice, when read in its totality, fairly opened the door for defendants to cross-examine those witnesses as to plaintiff’s personality traits. Plaintiff’s personality, both before and after the injury, was relevant to assessing his future career earnings as well as any damages for loss of the pleasures of life.

The second issue which plaintiff raises on appeal is that this court erred by permitting defendants to introduce evidence of plaintiff’s prior marijuana and alcohol use. Plaintiff’s basic theory of the case is that the negligence of defendants caused him to have a heart attack leading to cognitive defects. The evidence of the marijuana and alcohol use was permitted by this court because such evidence was relevant to the issue of plaintiff’s cognitive dysfunction and plaintiff’s damages.

It is worth reiterating that this court believes this issue is irrelevant given the jury’s finding of no negligence in this instance. The admission of plaintiff’s drug and alcohol use only goes to damages, and it is the belief of this court that even if the evidence was improperly permitted, its admission was harmless error.

Assuming, arguendo, that such evidence was relevant to the finding of negligence, this court still believes its admission was proper as it was relevant to the ultimate determination of damages. Both sides reference Krause v. Taylor, 710 A.2d 1142 (Pa. Super. 1998) (subsequent history omitted) in their respective briefs. Krause was a case in which the Superior Court noted that a plaintiff’s prior drug use was admissible because it went to the issue of life expectancy in the case.

Although admittedly plaintiff’s life expectancy is not at issue here, Krause stands for a more general proposition: namely, that evidence of drug and alcohol abuse are admissible in cases in which that evidence tends to establish a material fact. Id. at 1144. Several witnesses before this court testified that plaintiff’s drug and alcohol use may have played a role in plaintiff’s cognitive difficulties. For example, Dr. Alexander testified during cross-examination that alcohol has the “capacity” to damage the brain (N.T., p. 277), and, with specific reference to plaintiff, Dr. Alexander stated that although he did not believe alcohol played a role “there could be some modest amount” of influence on his cognitive difficulties. {Id. at p. 286.)

As for the issue of plaintiff’s marijuana use, plaintiff argues that such evidence should have been inadmissible. This court, in its pretrial ruling, noted that evidence of marijuana use could be used to the extent it was related to plaintiff’s cognitive deficiencies and hence damages. For the reasons previously articulated with respect to plaintiff’s alcohol use, this court believes plaintiff’s prior marijuana use was admissible under Kraus because it impacts, potentially, the damage assessment in plaintiff’s claims for future earnings and life care expenses. In this case, plaintiff’s prior alcohol and drug history may — if believed by the jury — have mitigated a damage award.

Plaintiff’s third, and final, argument is that there was no scientific evidence which established to the requisite level of medical certainty that marijuana use does in fact have a long-term effect on an individual’s cognitive abilities. Plaintiff argues that any testimony about marijuana use is scientific in nature and therefore must meet the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) general acceptance standard. Blum v. Merrell Dow Pharmaceuticals Inc., 563 Pa. 3, 764 A.2d 1 (2000).

The gravamen of plaintiff’s appeal on this issue is that the testimony given by defendant’s expert, Dr. Peter Badgio, was not sufficient to reach the level of certainty required for scientific evidence under Frye. In pertinent part, Dr. Badgio’s testimony was as follows:

“Q: Now, there has been some evidence here concerning a decade long history of the abuse of marijuana.
“A: Uh-huh.
“Q: And I would ask you... [wjhat effect, if any, does chronic, long-term use of marijuana have on cognitive functioning?
“A: Let me first say that there is much less research on chronic marijuana use and neuropsychological functioning than there is on chronic alcohol use. Alcohol use has much more widely studied by neuropsychologists. It’s a much larger population of individuals suffering. The— the research data on marijuana use is somewhat varied. The studies evaluate somewhat different populations; people have only used a lot of marijuana for a short time, or people have used a little marijuana over a long time. And there’s quite a bit of variation. The overall consensus at this point in time, if we’re looking at chronic marijuana use, is that it does impair brain function, and that impairment doesn’t go away when you stop the use. It improves, but there is more likely to be long-term residual effects from chronic marijuana use, and by chronic, I mean 10-plus years.
“Q: All right. Does it make any difference the length of time the person has been using marijuana?
“A: Oh, absolutely . . . It’s in the chronic cases, as I say, 10 years plus, where there have been studies showing residual effects.” (N.T. at pp. 618-20.)

There are really two distinct inquiries raised in plaintiff’s post-trial motion on this issue: whether Dr. Badgio’s testimony met the “general acceptance” of the scientific community standard under Frye and whether Dr. Badgio met whatever standard applies to a medical expert called by the defense.

With respect to the Frye issue, general acceptance in the scientific community is required for the admission of expert testimony. In order to be considered reliable, the expert’s opinion must be “grounded in the methods and procedures of science, based on more than subjective belief or unsupported speculation.” Blum, supra, 564 Pa. at 6,764 A.2d at 3. Although there are some equivocal aspects of Dr. Badgio’s testimony, he definitively concluded that “[t]he overall consensus at this point in time, if we are looking at chronic marijuana use, is that it does impair brain function, and that impairment doesn’t go away when you stop the use.” (N.T. at pp. 619-20.) Dr. Badgio did not use the talismanic words “general acceptance,” but the phrase “overall consensus” suffices to constitute general acceptance under Frye. Defendant Mandalakas provided, in response to plaintiff’s motion in limine on the issue, the literature upon which Dr. Badgio’s conclusion was based both to plaintiff’s counsel and to this court pretrial. The literature provided, as well as the testimony proffered, suffices to ensure that Dr. Badgio’s testimony is not “junk science” and therer fore meets the Frye threshold.

Plaintiff also argues that his treating physician, Dr. Michael Lupinacci, testified in his deposition that “there’s not evidence that indicates one way or the other” whether chronic drug use impacts one’s cognitive abilities. Plaintiff’s brief in support, p. 10. Plaintiff asserts that this testimony, coupled with Dr. Badgio’s admission that the research on marijuana use is “varied,” suggests that this court should have conducted a Frye hearing. This argument by plaintiff is misplaced. There is a substantial difference between a Frye determination by the court and a fact-finder’s analysis of conflicting expert opinions. It is not the function of this court to weigh conflicting expert testimony; rather, that is a function of the jury. In light of the studies provided to this court prior to trial and the subsequent testimony given at trial, this court believes that plaintiff’s request for a Frye hearing was appropriately denied.

Plaintiff also attacks Dr. Badgio’s testimony on an alternative basis, namely that Dr. Badgio failed to testify to a reasonable degree of medical certainty. However, as properly noted by defendants, the so-called certainty requirement only applies to parties with the burden of proof. Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987). As noted in Neal:

“Absent an affirmative defense or a counterclaim, the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiff’s case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence .. . certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal evidence would not qualify as proof.” Id. at 476, 530 A.2d at 109-110.

Given this standard, Dr. Badgio’s evidence was appropriately admitted as his testimony was an attempt to vitiate the testimony proffered by plaintiff.

Defendants have made several cross-motions for post-trial relief as well. Inasmuch as the request by defendants explicitly asks the court only to consider these issues in the event this court grants plaintiff’s motion for post-trial relief, this court will refrain from addressing those issues unless they otherwise become relevant.

Accordingly, plaintiff’s motion for post-trial relief is denied and I enter the following order:

ORDER

And now, December 16, 2002, for the reasons stated in the foregoing opinion, plaintiff’s motion for post-trial relief is denied.

      . Prior to trial, St. Joseph Hospital and plaintiff entered into a stipulation in which plaintiff agreed that his sole claim against St. Joseph’s Hospital was for vicarious liability for the alleged negligence of the hospital’s agents and ostensible agents.

      . This court ruled that evidence of plaintiff’s domestic violence was inadmissible as long as Mrs. Rice did not maintain an action for loss of consortium. However, if such a claim was maintained, this court intended to permit testimony on the topic as it was relevant to any damages sought under a claim for loss of consortium. In the absence of such a claim, plaintiff’s domestic violence was irrelevant to the case. After this ruling, Mrs. Rice voluntarily dropped her claim for loss of consortium.

      . Moreover, after the close of evidence, this court refused to charge the jury on the issue of comparative negligence. Consequently, even if it was error for this court to permit such testimony, the jury was not given a charge that suggested it could consider plaintiff’s personality or marijuana use when deliberating on the issue of liability. Therefore, even if there was some prejudice that enured to plaintiff from this testimony, the fact that this court elected not to charge on the issue of comparative negligence meant that the mistake merely was harmless error.

      . Executive function in this context addressed plaintiff’s intellectual capabilities and how those capabilities related to his employment.

      . Also worth noting is the fact that the admission or rejection of rebuttal evidence is within the sound discretion of the trial judge. Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987).