author: ASHWORTH, J.,

text:
    Shank v. Newman

      C.R of Lancaster County,
    no. CI-04-01227.

      Terry S. Hyman, for plaintiffs.

      Andrew H. Briggs, for defendant Newman.

      John F.X. Monaghan, for defendant Elizabethtown Family Health Center.
    November 9, 2004
   ASHWORTH, J.,

Plaintiffs have filed a motion to compel the videotape deposition of defendant Miles G. Newman D.O. For the reasons set forth below, this motion will be granted.

I. BACKGROUND

This is a medical malpractice action against Newman and Elizabethtown Family Health Center arising out of the failure to diagnose colon cancer in plaintiff Todd H. Shank. In the complaint, plaintiffs aver that Todd Shank relied on Newman for medical care since Todd was 18 years old. (See complaint at ¶¶5, 6.) On multiple occasions during his life, Todd advised Newman that his mother had died at a young age from colon cancer. (See complaint at ¶¶6, 7,11.)

On one visit in 1998, Todd. Shank came to defendant Newman specifically with gastrointestinal problems and blood in his stool. (See complaint at ¶7.) Newman did not, however, order or refer Todd Shank for a colonoscopy at that time. (See complaint at ¶10.) Instead, he performed a flexible sigmoidoscopy which does not visualize the upper colon or the juncture of the colon with the cecum. (See complaint at ¶¶8, 9.) Based upon the results of that test, Newman advised Shank he was cancer-free. (See complaint at ¶10.)

In September 2002, Todd Shank again complained to Newman of blood in his stool and stomach cramps. (See complaint at ¶11.) Newman made a diagnosis of gastroenteritis and limited his diagnostic testing to taking stool samples. (See complaint at ¶12.) When the stool tests came back normal, defendant Newman took no further action. He neither referred Shank for a colonoscopy nor advised him to get one. (See complaint at ¶13.)

In July 2003, Shank returned with complaints of diarrhea, cramps and vomiting. (See complaint at ¶14.) Finally, Newman ordered a colonoscopy. (Id.) Shank’s cancer was found. Specifically, the “colonoscopy located a very large tumor at the ileocecal juncture.” (See complaint at ¶16.) Moreover, the cancer had metastasized outside of the tumor. (See complaint at^pi, 23.)

This failure-to-diagnose action was commenced by Todd Shank and his wife, Julie Shank, on February 11, 2004. Defendants have denied they were negligent in the care and treatment of Todd Shank. (See answer and new matter of defendants.) Moreover, defendants claim that the treatment they provided was in accordance with applicable standards of medical care at the time and place of treatment. (See answer and new matter of defendants at ¶41.) Included in defendants’ new matter were numerous affirmative defenses to the claims made by plaintiffs. (See answer and new matter of defendants.) The pleadings are now closed and discovery is ongoing.

After a year of extensive chemotherapy, Todd Shank died of colon cancer on October 18,2004, at the age of 36.

II. DISCUSSION

Pursuant to Pa.R.C.P. 4017.1, plaintiffs gave notice of their intention to take the deposition of the defendant physician in this case. The notice stated that plaintiffs intended to record that deposition by videotape and by stenographic transcript pursuant to Pa.R.C.P. 4017.1(a). By letter dated September 8,2004, Dr. Newman objected to the discovery deposition being videotaped. Plaintiffs brought this matter to the court in the form of a motion to compel. Oral argument was held on October 29,2004. Defendant physician seeks a protective order pursuant to Pa.R.C.P. 4011(b) requiring that the deposition be recorded stenographically only and that videotape not be used.

Rule 4017.1 (a) of the Pennsylvania Rules of Civil Procedure provides that “[a]ny deposition taken upon oral examination may be recorded by videotape.” Pa.R.C.P. 4017.1(a). As with all discovery, however, the use of a videotape deposition is still subject to the limitations of an order of protection to prevent abuse. Rule 4011(b) provides in pertinent part: “No discovery or deposition shall be permitted which ... would cause unreasonable annoyance, embarrassment, oppression, burden, or expense to the deponent or any other person or party....” Pa.R.C.P 4011 (b). Thus, the courts have been given wide discretion to preclude or appropriately limit the use of any particular disclosure device where it determines that the use of that device would cause unreasonable annoyance, embarrassment, openness, burden or expense.

In this case, defendant argues he is entitled to an order of protection because “it is obvious that plaintiffs’ motive in videotaping Dr. Newman’s discovery deposition is solely for the purpose of placing undue stress and trauma on Dr. Newman during his deposition.” See defendant’s response to plaintiffs’ motion to compel at ¶11. Significantly, this issue of videotaping depositions has not generated an extensive body of Pennsylvania case law. Although multiple jurisdictions in this Commonwealth have entered orders authorizing videotape depositions, no appellate court has made a pronouncement on this specific issue of whether a plaintiff may, over the objections of the defendant, conduct the defendant’s deposition by videotape rather than by regular stenographic means pursuant to Rule 4017.1(a), and only one court of common pleas has issued an opinion.

The sole discussion is by the Honorable Anthony J. Wettick of the Allegheny County Court of Common Pleas in the case of Tillett v. Shento, 131 P.L J. 297 (1982). In Tillet, the plaintiff served the defendant a notice that he wished to videotape the defendant’s discovery deposition. The defendant was neither aged, nor in ill-health, nor was there any reason to anticipate that the defendant would not be present at trial. While recognizing that Rule 4017.1(a) permits oral depositions to be recorded by videotape, the Allegheny County court held that, as with all discovery procedures, the provisions of Rule 4017.1 are subj ect to the restrictions of Rule 4011, which precludes discovery that would cause unreasonable annoyance or burden. Id. at 297.

On the facts of the case, Judge Wettick stated that absent “a showing of a special need to record an oral deposition by videotape, we hold that the videotaping of a deposition for discovery purposes only will cause unreasonable annoyance, burden and expense.” Id. The court reasoned:

“Already the costs of discovery are burdensome and create difficulties for parties without substantial resources. If oral depositions may be recorded by videotape as a matter of course, litigation expenses will be substantially increased and parties who cannot afford a copy of the videotape recording will be placed at a tactical disadvantage.
“Also, an oral deposition subjects the less sophisticated deponents to greater stress and emotional discomfort. ...” Id. at 297-98.

He concluded: “[B]y promulgating Rule 4017.1(a), it was not the Supreme Court’s intention to permit videotaped depositions to be taken for discovery purposes only as a matter of course.” Id. at 298.

I would suggest that the rationale for this 1982 decision has eroded with age. Twenty-five years ago, the cost of videotaping a deposition may have been burdensome to parties with limited resources but with the advances in technology over these last two decades we have also seen the costs associated with that technology significantly decrease. What began as an experiment by the Supreme Court of Pennsylvania in 1973 has become a discovery standard throughout this jurisdiction and throughout the country. See Pa.R.C.P. 4017.1, explanatory comment — 1978.

Plaintiff’s counsel has provided the court with several orders from surrounding counties that have enforced notice of videotape depositions of defendant physicians in medical malpractice actions despite objections by the physicians’ counsel. See Hall v. Mercy Health System of Southeastern Pennsylvania, no. 03-8260, Delaware County (Sept. 8, 2004, Burr, J.); Layser v. Malamed M.D., no. 03-23984, Montgomery County (August 18, 2004, Albright, J.); Fotiou v. Morris, no. 004294-2001, Philadelphia County (March 26, 2002, Quinones Alejandro, J.); Murphy-Fallon v. Hospital of the University of Pennsylvania, no. 3835-2001, Philadelphia County (March 12, 2002, Quinones Alejandro, J.). See also, Zbegnerv. Munley, no. 01-CIV-2601, Lackawanna County (August 17, 2004, Mazzoni, J.) (videotape deposition of defendant attorney authorized by court). The only published Pennsylvania opinion on this issue, however, continues to be the 1982 opinion by Judge Wettick in Tillet. For this reason, I have turned to other jurisdictions for guidance.

The Supreme Court of Nassau County, New York, addressed the identical issue in the 1992 medical malpractice case of Roche v. Udell, 588 N.Y.S.2d 76 (1992). In Roche, the court identified the issue as “whether plaintiff may, over the vehement objections of the defendant doctors, conduct their depositions by videotape rather than by regular stenographic means pursuant to CPLR 3113(b),” which was amended in 1977 to provide that deposition “testimony shall be recorded by stenographic or other means. . . .” The defendant physician argued that a protective order was justified because of “his availability to testify personally at trial” and because “the presence of a video camera would affect his ability to testify openly and accurately.” Id. at 77. The plaintiff vigorously opposed the application for a protective order and argued that “she should not be precluded from availing herself of this superior technology simply because defendants are somewhat camera shy and/or uncomfortable about the prospect of testifying before a video camera. Further, that in relying upon such flimsy excuses, these defendants either ignore or fail to perceive that they are simply insufficient to overcome a legislative mandate and long-standing policy that videotapes are favored and encouraged.” Id. at 78.

Noting a “dearth of applicable reported trial or appellate court decisions, current reports or studies as to videotaped depositions” in the New York jurisdiction and others, the New York court looked to the statute which unequivocally gives a plaintiff the “statutory right, notwithstanding a bashful witness, to employ this methodology, at her expense, provided she complies with the procedural mandates” of the statute. Id. at 80. The court held that “although frequently used to perpetuate the testimony of ill or non-resident witnesses, neither court permission nor a showing of ‘special circumstances’ is required” for a videotaped deposition of a defendant doctor. Id. In conclusion, the court noted:

“It is time to accept the fact that, unlike Judges’ Chambers where the original Underwood typewriters have only begun to be replaced, even the average ‘country lawyer’s’ office is comparable to a mini-Kennedy Space Center with all of its state of the art computers, word processors, faxes, Lexis and now, the latest in video equipment. Thus, suffice it to say, video depositions are here to stay for, surer than death or taxes, lawyers like to play with new toys.” Id. at 81.

The New York Appellate Court confirmed this analysis in Jones v. Maples, 691 N.Y.S.2d 429 (1999), when it held that: (1) the Rules of Civil Procedure “freely permit a party taking a deposition to record it on videotape”; (2) “[t]here is no requirement to show special need”; and (3) “videotaping may be employed over the objections of a bashful or reluctant witness.” Id. at 431.

A similar result was reached by the Supreme Court of Oregon in the matter of Anderson v. Miller, 320 Or. 316, 882 P.2d 1109 (1994). In Anderson, the plaintiff gave notice of his intention to take the videotape deposition of the defendant pursuant to Rule 39(C)(4) of the Oregon Rules of Civil Procedure, which allows a party to record a deposition by non-stenographic means: “The notice of deposition . . . may provide that the testimony be recorded by other than stenographic means....” The staff comment to Rule 39 (1978) notes that “non-stenographic” includes videotape and any other recording device capable of producing a permanent and accurate record.

The defendant moved for a protective order requiring that the deposition be recorded stenographically only and that videotape not be used. The trial court granted the motion. On appeal, the Supreme Court reversed, holding that a party is entitled to videotape a deposition as a matter of right under the deposition discovery rule and that, under that rule, the trial judge lacks the discretion to deny a party that right. Id. at 319, 882 P.2d at 1111. The court did recognize, however, that the discovery rules do vest discretion in the trial court to issue an order denying the videotaping of a deposition, but only if justice requires it to protect a person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense. Id. at 319-20, 882 P.2d at 1111.

The appellate court found that the protective order prohibiting the videotaping of the deposition was unauthorized because the record before the trial court did not support a finding that videotaping the deposition would result in unreasonable annoyance, embarrassment, harassment, oppression, or undue burden or expense to the deponent. Accordingly, the defendant’s reasons were insufficient, as a matter of law, to permit the exercise of discretion and the trial court erred in issuing the protective order. Id. at 322, 882 P.2d at 1112.

The appellate court in Louisiana similarly addressed the issue of videotape depositions in the matter of Brigsten v. Southern Baptist Hospital, 690 So.2d 810 (1996). In this medical malpractice action, the defendant physicians appealed the trial court order permitting the plaintiff to take the videotape depositions of the defendant physicians by the plaintiff’s office personnel or staff. The court authorized the videotape deposition pursuant to art. 1440 of the Code of Civil Procedure (“A videotaped deposition may be taken and used without court order just as any other deposition.”) but ruled that a disinterested professional videographer must be utilized to assure that the recorded testimony will be accurate and trustworthy. Id. at 811.

Pennsylvania Rule of Civil Procedure 4017.1 entitled, “videotape depositions,” reflects a recognition by the Supreme Court of the beneficial effect new technologies can have on traditional litigation practices and procedures. When Pennsylvania adopted this rule in April 1973, it was one of the first states to authorize videotape depositions. See Pa.R.C.P. 4017.1, explanatory comment — 1978. As evidenced by the cases discussed above, the use of videotape depositions for discovery purposes expanded through the last two decades of the 20th Century and into the 21st Century. What was the exception in 1982 with videotape deposition is now the norm. For these reasons, I decline to apply the discovery rule as pronounced in Tillet in 1982.

Today, Tillet appears to represent a minority view. Whereas Tillet requires a showing of “special needs” to rebut the presumption that videotaping of a deposition for discovery purposes only will cause unreasonable annoyance, burden, and expense, most jurisdictions facing this issue have found that a party is entitled to videotape a deposition as a matter of right and that the trial judge lacks the discretion to deny a party that right, except where justice requires it to protect a person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense.

In this day and age, I simply cannot apply the Tillet standard which defendant Newman urges. Accordingly, I find that neither court permission nor a showing of “special needs” is required for a videotape deposition of a party for discovery purposes only. Nor will boilerplate allegations of “emotional discomfort,” “undue stress” and “increased trauma” constitute a good faith basis for refusing the videotaping of a discovery deposition. For as our brethren from the Supreme Court of Nassau County, New York, so aptly wrote in 1992, “video depositions are here to stay for, surer than death or taxes, lawyers like to play with new toys.”

III. CONCLUSION

For the reasons set forth above, plaintiffs’ motion to compel the videotape deposition of Miles G. Newman D.O. is hereby granted. Accordingly, I enter the following:

ORDER

And now, November 9, 2004, upon consideration of plaintiffs’ motion to compel defendant Newman’s response thereto, and oral argument of counsel, it is hereby ordered that said motion is granted. It is further ordered that plaintiffs are permitted to take the videotape deposition of defendant Miles G. Newman D.O., scheduled for November 11, 2004, at 11 a.m.

      . Pennsylvania Rule of Civil Procedure 4017.1 entitled “videotape depositions” provides as follows:
      “(a) Any deposition to be taken upon oral deposition may be recorded by videotape without a stenographic transcript. Except as otherwise provided by this rule, the rules of this chapter governing the practice and procedure in depositions and discovery shall apply.
      “(b) Every notice or subpoena for the taking of a videotape deposition shall state that it is to be videotaped, the name and address of the person whose deposition is to be taken, the name and address of the person before whom it is to be taken, and the name and address of the videotape operator and of his employer. The operator may be an employee of the attorney taking the deposition.
      “(c) The deposition shall begin by the operator stating on camera (1) his name and address, (2) the name and address of his employer, (3) the date, time and place of the deposition, (4) the caption of the case, (5) the name of the witness, and (6) the party on whose behalf the deposition is being taken. The officer before whom the deposition is taken shall then identify himself and swear the witness on camera. At the conclusion of the deposition the operator shall state on camera that the deposition is concluded. When the length of the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on camera by the operator.
      “(d) The deposition shall be timed by a digital clock on camera which shall show continually each hour, minute and second of each tape of the deposition.
      “(e) No signature of the witness shall be required.
      “(f) The attorney for the party taking the deposition shall take custody of and be responsible for the safeguarding of the videotape and shall permit the viewing of and shall provide a copy of the videotape or the audio portion thereof upon the request and at the cost of a party.

        “(g) In addition to the uses permitted by Rule 4020 a videotape deposition of a medical witness or any witness called as an expert, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.
      “(h) At a trial or hearing that part of the audio portion of a videotape deposition which is offered in evidence and admitted, or which is excluded on objection, shall be transcribed in the same manner as the testimony of other witnesses. The videotape shall be marked as an exhibit and shall remain in the custody of the court.”

      . In a footnote following the quoted text above, Judge Wettick noted, “[t]his opinion does not apply to a videotape deposition of a medical witness or any witness called as an expert because these depositions may be used at trial, even if the witness is able to testify (Pa.R.C.P. 4017.1(g)).” Id. at 298.

      . Defense counsel argues strenuously against this court’s consideration of the rulings on this matter by other common pleas judges throughout the Commonwealth. Regrettably, defense counsel failed to mention in his response to plaintiffs’ motion to compel the fact that precisely two weeks previous to the oral argument in this case, the exact same issue was considered and rejected by this same court in the matter of Schaum v. Lancaster General Hospital, no. CI-03-10008, Lancaster Cty. (October 4, 2004, Ashworth, J.). In Schaum, defense counsel Briggs moved for a protective order to preclude the plaintiff from videotaping the discovery deposition of the defendant physician and filed a response which closely mirrors the response filed in the instant case. This court entered an order denying the motion for protective order. Now, as then, I decline to apply Judge Wettick’s analysis to the facts of this case. My concern, however, is for defense counsel’s obligation of candor to the court given the fact that had another judge of this court heard this matter, he or she would not necessarily have been aware of the recent Schaum decision. (See Rule 3.3(a)(3) of the Rules of Professional Conduct which provides in pertinent part: “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”).

      . Most states now have similar discovery rules. See for example, Alabama R.C.P. 30(b)(4) (“The testimony at a deposition may be recorded on videotape, or by other equivalent technologies, in addition to the stenographic record.”); Florida R.C.P. 1.310(4) (“Any deposition may be recorded by videotape without leave of court or stipulation of the parties.. ..”); Louisiana Statutes Annotated Code of Civil Procedure (LSA-C.C.P.) art. 1440 (“The testimony at a deposition may be recorded by other than stenographic means.....A videotaped deposition may be taken and used without court order just as any other deposition.”); New York Ct. Rules, §202.15 (“depositions authorized under the provisions of the Civil Practice Law and Rules or other law may be taken ... by means of simultaneous audio and visual electronic recording.....”); Oregon Civ.P. 39(c)(4) (“The notice of deposition ... may provide that the testimony be recorded by other than stenographic means, in which event the notice shall designate the means of recording and preserving the deposition. . . .”) (emphasis added); W.Va. R.C.P. 30(b)(4) (“The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound- and-video, or stenographic means,....” ).

      . Indeed, while this court would not presume to second-guess the learned Judge Wettick on whether he would conclude otherwise should the issue present itself today, I am constrained to observe that much of the rationale for my esteemed colleague’s ruling back in 1982 is no longer a concern. What was once an expensive burden has now become commonplace.

      . This approach is consistent with the 1993 amendment to Fed.R.C.P. 30(b)(4), the federal counterpart to Pennsylvania’s Rule 4017.1. The old Rule 30(b)(4) stated: “The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. ...” Milwaukee Concrete Studios v. Greeley Ornamental Concrete Prods. Inc., 140 F.R.D. 373, 380 (E.D. Wis. 1991) (citing 1991 version of Fed.R.C.P. 30(b)(4)). The new language in Rule 30(b)(4) states: “If the deposition is recorded other than steno-graphically, . . . .” Thus, parties no longer need to obtain leave of court. They may videotape depositions at their own discretion. The Advisory Committee notes accompanying the 1993 amendment explain the change:

        “The primary change in subdivision (b) is that parties will be authorized to record deposition testimony by non-stenographic means without first having to obtain permission of the court or agreement from other counsel.. .. New paragraph (2) confers on the party taking the deposition the choice of the method of recording, without the need to obtain court approval for one taken other than stenographically.. ..” Notes of Advisory Committee on Rules, 1993 Amendment. The new federal rule allows the parties the option of videotaping a deposition.

      .1 would venture to guess, however, that 10 years from now, videotape depositions will be an outdated discovery tool and some new technological “toy” will be the subject of an attorney’s motion for protective order before this court.


source: Caselaw Access Project

author: BERNSTEIN, J.,

license: Public Domain

text:
    Stanley v. City of Philadelphia

      Michael H. Landis, for plaintiff.

      Margaret M. Fenerty, Kwame O. Agyeman and Alan C. Ostrow, for defendant.
    November 9, 2004
   BERNSTEIN, J.,

Plaintiff, Joseph Stanley, filed a complaint against defendants, the City of Philadelphia, the Department of Transportation of the Commonwealth of Pennsylvania and Bradley Mallory, secretary of transportation on May 23, 2004. Plaintiff sought to recover damages for injuries sustained when he was struck by a motor vehicle driven by Edward Reed Jr., as he was crossing Walnut Lane near 6100 Morris St., in Philadelphia. Plaintiff alleged that his injuries were caused by the negligent maintenance of a stoplight located at the crosswalk.

Prior to filing this complaint, on May 8, 2002, plaintiff Joseph Stanley had settled with Mr. Reed. He signed a release agreement that released Reed from all liability in exchange for $15,000, the limits of Mr. Reed’s personal insurance coverage.

On October 10, 2002, defendant city filed a petition for leave of court to join as an additional defendant, their own employee, Edward Reed, the driver of the vehicle which struck the plaintiff. On November 19, 2002, this petition was granted. Six days later, the defendant city filed a joinder complaint averring that any damages and injuries alleged in the complaint were solely the result of the negligence and carelessness of Edward Reed, city’s own employee.

On January 17,2003, the plaintiff filed a “first amended complaint.” The amended complaint renewed the allegations of the original complaint and added a claim for vicarious liability, for the negligence of Edward Reed. The amended complaint alleged that Reed was acting in the scope of his employment when he struck Mr. Stanley. The caption in plaintiff’s first amended complaint does not list Edward Reed as a defendant. Accordingly, Edward Reed can be considered only an additional defendant and has been an additional defendant since November 19, 2003, when the city joined their own employee to this action.

On October 20, 2003, a stipulation was filed dismissing defendants the Department of Transportation of the Commonwealth of Pennsylvania and Bradley Mallory, secretary of transportation.

A jury trial began on November 24, 2003. Possibly concerned by the procedural uncertainty presented because the amended complaint raised no claim against the additional defendant, Ms. Fenerty, attorney for defendant city, requested “Your honor, what I was hoping the jury slip could read is a finding against the city, and a finding against Mr. Reed. We would like the jury to determine Mr. Reed’s liability.” At that conference, Ms. Fenerty explained that she wanted the jury to distinguish the negligence attributed to Mr. Reed’s driving from the negligence associated with the maintenance of the traffic signal. This request was granted.

At the close of plaintiff’s case in chief, defendant city moved for a directed verdict as to claims for pain and suffering. The motion was denied. On December 11, 2003, the jury rendered a verdict for the plaintiff in the amount of $987,000. Negligence was apportioned as: plaintiff 10 percent, Edward Reed 40 percent, and, for the city, 50 percent. Pursuant to comparative negligence principles, the verdict was reduced by the percentage of the plaintiff’s negligence to $888,000.

Defendant filed post-trial motions on December 15, 2003, which included a motion to mold the damages. The motion requested the court deduct from the verdict all damages caused by Mr. Reed’s negligence. Defendant claimed that when plaintiff released additional defendant Edward Reed from liability, they released his employer city from vicarious liability. Defendant’s motion to mold damages was granted and the verdict was reduced by 40 percent, the percentage attributed to defendant Edward Reed’s negligence, to $493,000. All other post-trial motions were denied.

Defendant city timely filed this appeal on May 21, 2004, and plaintiff timely filed a cross-appeal on May 28, 2004.

On June 7, 2004, the court ordered the parties to submit a “concise statement of matters complained” about on appeal. Defendant city presents three claims of error. Defendant purports to claim that the trial court erred by permitting its employee, Edward Reed Jr., to be an additional defendant in this case. The defendant purports to claim that it was prejudiced by allowing their employee, who they brought into this action, to be a party in the same proceeding in which the negligent maintenance claim against the city was to be decided. Defendant also alleges that the trial court’s instruction on factual cause was erroneous. Finally, defendant alleges error in the denial of defendant’s motion for a directed verdict on the issue of pain and suffering. Defendant claims the evidence, as a matter of law, failed to show “permanent loss of bodily function” as required by the Political Subdivision Tort Claims Act.

Plaintiff, on appeal, only claims error in molding the damages from $888,000 to $493,000. Plaintiff claims that the release of additional defendant Reed did not release the city from vicarious liability and that defendant city remains liable for the negligence of their employee, Mr. Reed.

On the morning of September 21, 2001, plaintiff Joseph Stanley, then 74, left his apartment for breakfast. Mr. Stanley resided alone at the Four Freedoms House, a senior citizen apartment building located at the intersection of Walnut Lane and Morris St. in the Germantown section of Philadelphia. After leaving Four Freedoms House, Mr. Stanley attempted to cross Walnut Lane at a crosswalk. While crossing the street, he was struck by a car and severely injured. The driver of the vehicle, Mr. Reed, was a sanitation employee working for the city at the time of the accident. When he struck Mr. Stanley, Mr. Reed was in his personal vehicle. He had already reported to work and had received the location for his work assignment. Mr. Reed was being paid by the city at the time of the accident.

The crosswalk where the accident occurred enables pedestrians to cross Walnut Lane safely. The traffic signal, hanging at the crosswalk, remains green to oncoming traffic unless a button is pushed from the sidewalk. Once the button is pushed, the traffic signal is designed to change from green to yellow and finally to red. When the light turns red, the pedestrian is given a walk signal indicating that it is safe to cross the street.

Police Officer Sisea arrived at the scene shortly after the accident. He tested the traffic signal located at the crosswalk and determined that the signal was not operational. Traffic on Walnut Lane was not signaled to stop when the officer pushed the button on the traffic signal.

The Four Freedoms House tenant council had previously complained to the defendant city about problems with the traffic signal. Although the residents had complained that the signal did not give pedestrians adequate time to cross the street, no evidence was presented that the city ever inspected the traffic signal after being notified that it was malfunctioning.

After the accident, plaintiff was treated by Dr. Barry Mann, who concluded that Mr. Stanley will never be able to live unassisted again. He also found that Mr. Stanley cannot walk without the assistance of a walker. Before Mr. Stanley was hit by Mr. Reed’s automobile, he was self sufficient, resided alone and enjoyed taking long walks in a park located near the Four Freedoms House. Since the accident he resides at an assisted living facility.

Defendant city has alleged three trial errors on appeal. City claims it was prejudiced when the trial court granted the city’s motion to join its own employee to this action. This court finds it difficult to understand how defendant city could claim prejudicial error when the court granted the city’s own motion to bring Mr. Reed into this litigation. On October 10, 2002, defendant city filed a petition for leave of court to join as an additional defendant their own employee, Edward Reed. On November 19, 2002, the petition was granted. On November 26, 2003, the defendant city filed a joinder complaint averring that any damages and injuries alleged in the complaint were solely the result of the negligence and carelessness of Edward Reed, city’s own employee.

Not only did the defendant win a motion allowing it to bring Mr. Reed into the litigation as an additional defendant, but trial counsel for the city specifically requested that, “the jury slip could read is a finding against the city, and a finding against Mr. Reed. We would like the jury to determine Mr. Reed’s liability.” Nonetheless, defendant city purports to appeal on the basis that the court granted both of their requests.

Common sense as well as the Pennsylvania Superior Court tells us that, “A prevailing party is not aggrieved and therefore does not have standing to appeal an order which has been entered in his or her favor.” The court allowed the city to add Mr. Reed as an additional defendant. The court also acceded to the city’s request that the same jury determine Mr. Reed’s liability. The city is not an aggrieved party, beyond that nothing further need be said about this purported issue.

Defendant next alleges that the trial court erred when giving the jury its instruction on “factual causation.” The trial judge gave the jury the following instruction: “The plaintiff must prove to you that defendant’s conduct caused the plaintiff harm. That’s factual cause. Conduct is a factual cause of harm, when the harm would not have occurred absent the conduct. An act is a factual cause of an outcome, if, in the absence of the act, the outcome would not have occurred. A defendant’s negligent conduct need not be the only factual cause of a plaintiff’s harm. The existence of other causes does not relieve the defendant from liability, as long as the defendant’s cause was a factual cause of the injury.”

This instruction, which is virtually verbatim from the Pennsylvania Suggested Standard Civil Jury Instructions 3.25, is an accurate statement of Pennsylvania law. Arguing pure semantics, defendant city claims error because the words “substantial factor” were not specifically used in the charge. Oddly enough, it was plaintiff, not defendant, who objected to the absence of the words “substantial factor” in the jury charge. Although, on appeal, new counsel for defendant city claims this issue has been preserved for appeal, it was not. Plaintiff objected to the court’s suggested charge, referring to the factual cause language, by saying: “Your honor, I would object to that charge. I think the jury needs to be charged on proximate cause as being a substantial factor, but it need not be the sole substantial factor. I think that suggests, but for causation.” Defense counsel disagreed, and, referring to the factual cause language, asked for it saying, “Your honor, I think that that charge [referring to the factual cause language] explains the facts of this case very well, and I think it lays it out for the jury pretty clearly.” This statement was made in opposition to plaintiff’s objection and cannot be rewritten post verdict to preserve the issue for appeal.

Additionally, the charge as given was correct. Noting the problems with defining and explaining the concept of “substantial factor,” the Civil Instructions Subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions Notes following Rule 3.25 on legal cause state:

“Confusion has been generated, compounded, and perpetuated by various attempts to make clear to the jury the ramifications of the distinction between a factual cause of an accident and a legal cause of an accident. In Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa. Super, 1998), the Superior Court revisited the question of legal cause. In that case the trial judge, in response to a jury question, read a Webster’s dictionary definition of ‘substantial’ as ‘considerable in quantity, significantly large. ’ The Superior Court held that this was not an accurate definition of ‘substantial’ as used in the legal sense, and therefore this instruction required a new trial. In explaining the legal definition of ‘substantial contributing factor,’ the court reviewed the history since its inception into Pennsylvania law. The ‘substantial factor’ test, initiated with the Restatement (Second) of Torts §431 (1965), was adopted in Pennsylvania in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). The Pennsylvania Supreme Court cited with approval the comment to Restatement section 431, which stated that a substantial factor is ‘ [conduct] that has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense.’ This definition does not require any quantification as long as the cause is significant or recognizable. If an event is a significant or recognizable cause, ‘it need not be quantified as considerable or large.’ Thus, the term ‘substantial’ means only ‘significant.’ In Jeter, the Superior Court said that the proper evaluation is whether the conduct was “on the one hand, a substantial factor or a substantial cause or, on the other hand, whether the defendant’s conduct was an insignificant cause or a negligible cause. It is not sufficient merely to tell the jury that the negligence must have been a ‘cause,’ because there is rarely a case where a properly named defendant has not, in some manner, ‘caused’ the accident; however, this is not to say that the conduct is the legal cause. For example, if a defendant negligently brings his or her vehicle to a sudden stop at a traffic light, where the defendant is struck from the rear one minute later by another defendant, the defendant’s passenger’s injuries have been ‘caused’ by the defendant’s conduct of merely being on the road, but no court would say that his or her negligent conduct was the ‘legal cause’ of the accident.”
“On the other hand, it does not serve justice to make the above-stated commonsense proposition of legal cause so cumbersome as to be unintelligible to all but the legally educated juror. For this reason, most of the usual legal phrases have been jettisoned from the charge on factual cause. The term ‘factual cause’ is retained to inform the jury that the plaintiff must also prove causation, and that not all causes are the ‘legal cause.’ But ‘proximate cause,’ a term that attempts to give substance to the distinction between factual cause and legal cause, but which ‘means nothing to an ordinary jury,’ Rodgers v. Yellow Cab Co., 395 Pa. 412, 422, 147 A.2d 611, 617 (1959), has been deleted. Similar synonyms such as ‘efficient cause’ and ‘substantial cause’ have been rejected.”
“Also rejected are the unnecessarily confusing concepts of ‘foreseeability and “natural and probable consequence.” To charge a jury that causation does not exist unless the defendant reasonably should have “foreseen” the harm invites them to speculate about factors properly having no place in the consideration of legal cause. For example, all persons would foresee that if they ignored a red light, an accident could result; however, how many could foresee that as a result of that negligence, a motorist legally entering the intersection would suddenly stop, causing the following vehicle to swerve onto the sidewalk, hitting a telephone pole, which landed on the plaintiff.’ See Hoover v. Sackett, 221 Pa. Super. 447, 292 A.2d 461 (1972). Further confusion invariably results if the same standard of foreseeability is used with respect to the personal injuries sustained. ‘Natural and probable consequence’ is merely another synonym for ‘foreseeability’ and invites the jury to the same speculation. The confusion is compounded by the consideration whether the jury should look backward from the results, or forward from the initiating conduct. It is for these reasons that the Restatement specifically rejects the concept of ‘foreseeability’ as having relevance to the issue of legal cause. Restatement (Second) of Torts §435 (1965). In Brown v. Tinneny, 280 Pa. Super. 512, 421 A.2d 839 (1980), it was held that the trial judge had committed reversible error by reading Restatement (Second) of Torts 435(2) almost verbatim to the jury as an instruction. Judge Spaeth, speaking for a three-member panel of the Superior Court, stated that the section cited described the function of the judge, not the jury. The section states that the defendant’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears ‘to the court’ highly extraordinary that it should have brought about the harm. The appellate court analyzed facts and found that relief under section 435(2) was not available to the defendants in this case and, further, that any decision regarding its applicability was a decision of the court.”
“Although the substantial factor test has been adopted exclusively by the Restatement and cited with approval by Pennsylvania courts, Restatement (Second) of Torts 431(a) (1965); Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970), it has led to some confusion among jurors. Consequently, the subcommittee recommends that the emphasis be on cause and that the definition of factual cause be so stated as to emphasize that it need not be so considerable or large as to be confused with the plaintiff’s burden of proof, which is considerably higher.”

Jury confusion from the word substantial has been documented in appellate decisions. In Curran v. Greate Bay Hotel and Casino, 434 Pa. Super. 368, 643 A.2d 687 (1994), the jury found that defendant Sands Hotel’s negligence was not a substantial factor and in the same verdict interrogatory allocated 30 percent of the causal harm to Sands Hotel. Obviously the jury misunderstood the concept of substantial factor, concluding that 30 percent was not large enough to be “substantial.” Likewise, in The City of Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993), the jury determined the negligence of a driver employed by defendant SEPTA not a “substantial factor” in causing plaintiff’s injuries. That same jury allocated 25 percent of the causal negligence to SEPTA. Obviously that jury misunderstood the concept of substantial factor, concluding that 25 percent was not “substantial.” Pennsylvania is not alone in moving towards a more realistic factual cause formulation. In May 2003, the American Law Institute proposed replacing substantial factor with factual cause. Final approval is scheduled for the spring 2005 meeting. For the reasons stated above, the instruction given by the court on “factual cause” is an accurate statement of Pennsylvania law.

Finally, the defendant alleges that the trial court erred in denying defendant’s motion for directed verdict on the issue of “permanent loss of bodily function.” Defendant claims that the plaintiff failed to show “permanent loss of bodily function” as required by the Political Subdivision Tort Claims Act. The Political Subdivision Tort Claims Act allows a plaintiff to recover pain and suffering damages from the city only for: “cases of permanent loss of bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses ... are in excess of $1,500.” Permanent loss of bodily function is present whenever an injured claimant is unable to perform bodily acts which the claimant was able to do or perform prior to sustaining the injury and that the loss of such ability is permanent.

At trial Dr. Barry Mann testified that plaintiff will never again be able to live unassisted, will never be able to care for himself, or even walk alone outside. Dr. Mann also testified that Mr. Stanley can’t walk without the assistance of a walker. Mr. Stanley himself testified that he can no longer get around without a walker and that he must live in an assisted living facility. It is simply disingenuous for the city to claim that this is not loss of bodily function.

In Philadelphia v. Owens, plaintiff’s doctor testified that the plaintiff had lost 20 percent of the range of motion in her lower back and that plaintiff could no longer play golf. The Pennsylvania Commonwealth Court held that “appellee was found by the trial court to be unable to perform physical acts which he was capable of performing prior to this injury. Therefore, appellee has lost a bodily function and is entitled to damages for pain and suffering pursuant to 42 Pa.C.S. §8553(c).”

Mr. Stanley can no longer walk without a walker and can no longer live independently. The jury could reasonably and easily conclude that Mr. Stanley suffered “permanent loss of bodily function.” Indeed it would be unreasonable for a jury to conclude otherwise. This claim is without merit.

For the reasons stated above, the decisions of the trial court should be affirmed as to defendant’s post-trial motions.

Plaintiff Stanley also alleges error. Plaintiff claims that the verdict should not have been molded to reduce the damages awarded to plaintiff. Before trial, plaintiff and additional defendant Mr. Reed entered into a release agreement, releasing Reed of all liability. Plaintiff alleges that the release language does not release the city for the negligence of its employee, Mr. Reed. However, as a matter of law, in releasing Reed the agent, plaintiff has also released city, the principal, for all claims of vicarious liability. The case law is clear, “[Termination of the claim against the agent extinguishes the derivative claim against the principal. A claim of vicarious liability is inseparable from the claim against the agent since any cause of action is based on the acts of only one tort-feasor.” As in this case, the plaintiff in Mamalis v. Atlas Van Lines Inc., 522 Pa. 214, 560 A.2d 1380 (1989), claimed to have written the release to only release the agent and not the principal. The Pennsylvania Supreme Court clearly held that the two claims are inseparable.

The release in this case does not release the city from negligence concerning the maintenance of the traffic signal. The plaintiff cannot, however, maintain any claim for vicarious liability against the city after having released the city’s agent. Accordingly, the trial court was correct in molding the damages to reflect the consequences of plaintiff signing the release of Mr. Reed.

For the reasons set forth above, the judgment of the court below should be affirmed.

      . The city did not file any pleading renewing its claim over against its employee after the amended complaint was filed.

      . N.T., vol. 1, p. 40.

      .N.T., vol. 1, p. 40.

      . Raitti v. Wheeling Pittsburg Steel Corp., 758 A.2d 695 (Pa. Super. 2000).

      . N.T., vol. 7, pp. 112-13.

      . N.T., vol. 6, p. 10.

      . 42 Pa.C.S. §8553(c)(2)(ii).

      . Walsh v. City of Philadelphia, 526 Pa. 227, 241, 585 A.2d 445, 452 (1991).

      . N.T., vol. 4, p. 32.

      . City of Philadelphia v. Owens, 115 Pa. Commw. 28, 539 A.2d 512 (1988).

      . Mamalis v. Atlas Van Lines Inc., 522 Pa. 214, 221, 560 A.2d 1380, 1383 (1989).


author: ALLEN, J.,

text:
    Vinitski v. Adler

      GeraldB. BaldinoJr. and Francis Curran Jr., for plaintiffs.

      Kevin H. Wright and Richard R. Galli, for defendants.
    September 17, 2004
   ALLEN, J.,

FACTS

Plaintiffs commenced this medical malpractice action in April 2001 alleging, inter alia, that the combination of medication — Tofranil, Xanax, Prozac, Depakote and Valium — prescribed by the defendants and used intermittently by the plaintiff, Simon Vinitski, over a 10-year period caused plaintiff to sustain “serious and painful physical injuries, including brain injury, and permanent damage to his brain and central nervous system ... Complaint, ¶16. See also, complaint, ¶21 (“[p]laintiff... has endured physical pain, mental anguish, discomfort, inconvenience and distress, and will continue to endure the same in the future”).

A revised case management order, dated June 20,2002, provided a discovery schedule in anticipation of an August 4, 2003 trial date. Pursuant to that order, plaintiffs were to submit their experts’ reports no later than March 3, 2003, and the defendants no later than April 7, 2003.

On October 1, 2002, plaintiffs submitted the expert report of Peter R. Breggin M.D. Defendants’ reports were submitted as follows:

Expert report of Jeffrey Janofsky M.D., forwarded to plaintiffs on April 25, 2003;

Expert report of Carl Salzman M.D., forwarded to plaintiffs on April 25, 2003; and

Expert report of Marc W. McKenna M.D., forwarded to plaintiffs on May 8, 2003.

In July 2003, plaintiffs’ counsel filed a petition for leave to withdraw. Said petition was granted on August 20, 2003. Plaintiffs, now pro se, having received an expert report from Charles Nemeroff M.D., Ph.D. on August 25, 2003, submitted said report 90 days later on November 25, 2003.

The Nemeroff report provides the following information:

“The care provided by Dr. Perkel and Dr. Adler for Dr. Vinitski is substandard as regards the community standard of care. There is little documentation or quantification of his psychiatric symptoms. There is absolutely no discussion of a differential diagnosis of either organic causes or a psychiatric differential diagnosis. There was no attempt to obtain a second opinion and the diagnoses change over time from anxiety to bipolar disorder to cyclothymia to agitated depression. Due to the fact that fluoxerine was introduced in 1998, imipramine was a poor choice for this patient to begin with and combination of imipramine and Prozac often raises imipramine plasma levels to a toxic level. In the absence of repeated imipramine therapeutic monitoring, it is impossible to know whether that was ever the case. Whether the anticholinergic effects of imipramine or desipramine worsened his cognitive deficits is also unclear. However, this patient deserved an intensive diagnostic evaluation early in the course of his illness. He should have had all the medical causes for both his psychiatric and neurological symptoms ruled out, for example, hypothyroidism, B-12 deficiency, etc. A second opinion should have been sought by Drs. Perkel and Adler. All of his symptoms initially are referable to what appears to be an organic dementing process. Whether he ever suffered from a mood or anxiety disorder is unclear. Finally, depression is known to be a risk factor for the development of dementia, and inadequate treatment of depression might have hastened the onset of the dementing process.
“In summary, the lack of substantial documentation of the process of differential diagnosis and in the face of a poor response, the lack of consultation with experts in the area (there are several available in the Philadelphia area) renders [sic] my firm conclusion of the care provided to Dr. Vinitski to be not only suboptimal but below the minimal standards of care that one would expect from practitioners in the field.”

When the court granted counsel’s petition to withdraw as counsel for plaintiffs, trial was then set to begin January 5,2004. Neither party requested an extension of deadlines (for submission of expert reports or any other discovery), nor was an extension given by the court. Thereafter on December 8, 2003, a settlement conference was held at which time the court continued the trial date from January 5, 2004 to June 14, 2004. In addition the court informed each party that submission of new or modified expert reports would not be accepted at that time or any time thereafter. On January 2 and 7, 2004, counsel entered their appearances on behalf of plaintiffs. On March 9,2004, Vinitski was examined by Dr. Breggin.

Despite this court’s edict of December 8,2003, plaintiffs sought the submission of two expert reports and the revision of a previously submitted report. Specifically, in March 2004, plaintiffs provided the defendants with the expert report of Robert P Wolf Ed.D., M.B.A. dated February 11, 2004. Defendants then filed a motion to strike; said motion was granted on May 24, 2004. On April 6, 2004, plaintiffs provided the curriculum vitae and expert report of Allen H. Pachtman M.D. Similarly, defendants filed a motion to strike this late submission; said motion was granted on May 24, 2004. In addition, the supplemental report of Peter Breggin M.D. was belatedly submitted and was also precluded by this court on May 24, 2004.

Lastly, defendants challenged the initial expert report of Breggin. A Frye hearing was held on June 4, 2004 to determine the admissibility of evidence proffered by Breggin. The hearing addressed whether prolonged exposure to high doses of benzodiazepines caused permanent brain injury. At that time, Breggin identified the methodologies used to draw the conclusion that such exposure does cause permanent brain injury. Specifically, the eight methodologies he noted were:

“(1) A review of the Diagnostic Manual of the American Psychiatric Association. The manual provides that dementia:
• may be ‘specifically related to disorders of the frontal lobe or associated subcortical pathways,’
• may be persisting in that ‘the memory disturbance persists long after the individual is no longer experiencing the effects of the substance,’
• may be induced by benzodiazepines, and
• the deficits associated with the disorder ‘are usually permanent and may worsen even if the substance use stops, although some cases do show improvement.,[]
“(2) An examination of one patient, diagnosed with permanent brain dysfunction which may or may not have been caused by prolonged exposure to benzodiazepines;[]
“(3) A review of literature on cognitive deficits caused by benzodiazepines;[]
“(4) A review of four[] studies that ‘demonstrate scientifically’ that benzodiazepines cause enlarged ventricles which Breggin interprets as ‘the corresponding phenomenon of atrophy of the brain, the same thing;’[]
“(5) A review of six studies that conclude benzodiazepines cause permanent cognitive disorders.[] Breggin, however, could neither recall the names of the studies nor provide the court with a copy of said studies;
“(6) A review of books ‘that touch on’ the adverse effects of benzodiazepines ;[]
“(7) A review of plaintiff’s medical records to exclude other diagnoses;[] and lastly
“(8) Informal discussions with other physicians during ‘CME seminars on subjects like these.’ ”[]

Copies of four articles were provided to the court, two of which were authored by Breggin. The Breggin articles discussed short-term effects of benzodiazepine use. The third article discussed varied studies of cognitive effects in long-term users, not the long-term effects of the drug. There, however, is no indication of an analysis into the issue of permanency after cessation of the benzodiazepines. The article specifically provided that, “results suggest that memory impairments, if they do occur, may be due to the acute effects of the drug and do not support the hypothesis that long-term benzodiazepine use leads to permanent memory impairment.” This article, however, is neither a clinical nor controlled study, but is instead an analysis of other studies which do not examine permanent brain damage caused by benzodiazepine use. The fourth article discusses persisting, not permanent, effects of benzodiazepine use. In this study, subjects were tested six months after cessation at which time there was indication of “modest recovery of certain deficits.” It is important, however, to note that this is not a longitudinal study to determine the long-term effects of the benzodiazepines.

Breggin stated that his methodologies did not include treatment of patients with permanent frontal lobe brain damage caused by the prolonged use of benzodiazepines or clinical/control studies analyzing the long-term effects of benzodiazepine use.

PROCEDURAL HISTORY

On June 11, 2004, a second hearing was held before this court to determine if any issue remained for trial. On that day, two orders were issued. (1) Defendants’ motion to preclude the testimony of Breggin regarding permanent brain injury and permanent cognitive losses due to the use of benzodiazepines was granted. At that time, plaintiffs’ counsel informed the court that Breggin would not testify about short-term cognitive deficiencies independent of plaintiff’s permanent injuries. Seizing the opportunity, defendants made an oral motion for summary judgment. Defendants rightly reasoned that plaintiffs could no longer make out a prima facie case since their only expert witness declined to testify on the remaining issue. (2) The court granted the defendants’ motion and the matter was dismissed.

On June 18, 2004, plaintiffs appealed the order dated June 11, 2004. However, in their Statement of Matters Complained of on Appeal, plaintiffs include three prior orders dismissing plaintiff’s expert witnesses as well as two orders denying plaintiffs’ motion to strike defendants’ experts.

DISCUSSION

Summary Judgment

Under the Pennsylvania Rules of Civil Procedure, a motion for summary judgment may be granted: “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

1. Medical Malpractice

To establish a cause of action for medical malpractice in Pennsylvania, the plaintiff must show that: “(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of the duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and, (4) the damages suffered by the patient were a direct result of that harm. . . . Moreover, the patient must offer an expert witness who will testify to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable ... standards, and that such deviation was the proximate cause of the harm suffered.” Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa. Super. 1997). (citations omitted) Plaintiff failed to establish the requisite elements.

There is no dispute as to the need for expert testimony in this matter. See Toogood v. Owen J. Rogal D.D.S. P.C., 573 Pa. 245, 255, 824 A.2d 1140, 1145 (2003) (“The expert testimony requirement in a medical malpractice action means that a plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiff’s injury. Hence, causation is also a matter generally requiring expert testimony.”). Plaintiff’s sole expert was precluded from testifying about plaintiff’s permanent injuries. As a result of the court’s order, plaintiff’s expert elected not to testify with respect to the short-term effects of benzodiazepines. See transcripts 06/11/04, pp. 11-12.

“[I]t was Dr. Breggin’s position that he would not be able to testify in this case as to the short-term if your honor is precluding him from testifying as to the long-term, because they are intertwined inextricably to the point that he under oath could not offer honest, credible testimony, and therefore he would not, I don’t think, be willing to offer part of his opinion without the entire opinion.”

Without Breggin’s testimony, plaintiff could not make out a case for medical malpractice.

Frye Standard

This court precluded Breggin from testifying that the permanent injuries allegedly suffered by the plaintiff were a result of prolonged exposure to benzodiazepines in dosage amounts approved by the guidelines established by the Food and Drug Administration. There is no dispute that the conclusions of Breggin are novel. However it is the methodology, not the conclusion, of concern to the court. Track v. Fellin, 817 A.2d 1102 (Pa. Super. 2003).

A. Methodology

It is important to understand two fundamental terms as defined by the Superior Court. The first term, methodology, is “[1] a method of research in which a problem is identified, [2] relevant data are gathered, [3] a hypothesis is formulated from these data, and [4] the hypothesis is empirically tested.” Track, 817 A.2d at 1113. “Empirical” is defined as “provable or verifiable by experience or experiment.” Id. (citations omitted) A vital characteristic of the scientific method, as the Superior Court determined, consists of the “ability to test or verify a scientific experiment by a parallel experiment or other standard of comparison (control) and to replicate the experiment to expose or reduce error.” Id.

The Superior Court of Pennsylvania has found extrapolation as one of three methodologies commonly accepted within the scientific community. Generally, extrapolation is tolerable under limited circumstances. See Track supra. Presumably, this is the method which the plaintiffs ask this court to accept as the basis for their expert’s conclusion as Breggin readily admits that he has conducted neither clinical trials nor clinical studies.

First, the court is not persuaded that Breggin’s approach is the type of extrapolation described and accepted by the Superior Court in lieu of clinical trials and studies. The “methods” described appear to be nothing more than a few anecdotal references and a cursory review of several studies tangentially related to benzodiazepines and possible permanent effects.

Second, the circumstances that would warrant the use of extrapolation are not present in this case. Extrapolation is a method to be used in limited circumstances. “Specifically, extrapolation is utilized in the scientific community when the medical inquiry is new or the opportunities to examine a specific cause and effect relationship are limited.” Donaldson v. Central Illinois Public Svc. Co., 199 Ill.2d 63, 84-85, 262 Ill. Dec. 854, 767 N.E.2d 314 (2002). Neither party posits that the medical inquiry into the effects of benzodiazepines is new. Thus, the only other option under which extrapolation would find acceptance is when the opportunity to examine a specific cause and effect relationship is limited due to the danger of a clinical trial or study.

The facts in Track are distinguishable from the facts of this case. In Track and the line of cases that follow, the plaintiffs were either poisoned by (1) consumption of medication in an amount six times in excess of the recommended dosage or (2) exposure to a known toxic substance. Because the likelihood of the circumstances being repeated was so remote, extrapolation was the only ethical means by which to identify a causal relationship. For extrapolation to apply to this case the circumstances must not be easily subject to replication and the substance must be toxic by nature or a result of an overdose.

There is no evidence or allegation that the medication prescribed is poisonous. Benzodiazepines have been used in the treatment of psychiatric disorders since being introduced in the 1960s. Consequently, it does not appear statistically that there exists an insignificant number of persons who may participate in studies about the effects of long-term use of the medication. “Epidemiological data from different countries have indicated that between 0.5 percent and 5.8 percent of the adult population use benzodiazepines on a long-term basis of one year or more.” Barker, Melinda J. et al., “Cognitive Effects of Long-Term Benzodiazepine Use: A Meta-Analysis” CNS Drugs 2004: 18(1): 37-48. Additionally, there is no allegation by the plaintiff that he consumed amounts of the benzodiazepines in excess of the recommended dosage.

Breggin failed to establish that his variation of an accepted methodology is generally accepted by scientists in the relevant field as a method for arriving at his conclusion. Grady v. Frito-Lay Inc., 576 Pa. 546, 558, 839 A.2d 1038 (2003). Pennsylvania evidentiary rules for the admissibility of novel scientific evidence comport with the Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“When scientific principle crosses the fine from experimental to demonstrable is difficult to define; somewhere in this twilight zone, it becomes admissible when the principle from which deduction made is sufficiently established to have gained general acceptance in the particular field to which it belongs”). Under Frye, novel scientific evidence is admissible only upon a showing that the methodology has gained general acceptance in the relevant medical community. See Grady; Blum v. Merrell Dow Pharmaceuticals, 564 Pa. 3, 764 A.2d 1 (2000); Commonwealth v. Blasioli, 552Pa. 149, 713 A.2d 1117 (1998); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). Breggin’s testimony fell well short of the mark.

Based on the above guidelines, this court excluded Breggin’s testimony regarding plaintiff’s permanent injuries.

The court also finds the Breggin report to be legally insufficient. In the 17-page report, Breggin fails to identify the standard of care for psychiatrists in the treatment of signs and symptoms akin to those presented by Vinitski. Rather, Breggin spends 14 pages critiquing the treatment provided not because it ran counter to the acceptable standards of care but because it ran counter to Breggin’s personal ideas and ideologies of what the standards ought to be.

Breggin’s report draws legal conclusions rather than providing facts which would allow a fact-finder to come to his own conclusion. A review of the Breggin report does not indicate where and how the doctors deviated from the standard of care or how harm was caused as a result of the care received.

Previous Orders Dismissing Plaintiffs’ Experts

Plaintiffs allege that the court erred in precluding testimony and reports of the following experts: Charles Nemeroff M.D., Ph.D.; Allen H. Pachtman M.D.; Robert P. Wolf Ed.D., M.B.A.; and supplemental report of Robert Breggin M.D. The court found the Nemeroff report to be lacking in that it failed to provide that the injury suffered by the plaintiff was a result of defendants’ negligence.

“For a plaintiff to make out his cause of action in such a case, therefore, the law requires that expert medical testimony be employed. In addition to its bearing on whether or not the defendant’s conduct was negligent, such testimony is needed to establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged.” Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978). See also, Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998) (“and that this deviation proximately caused actual harm.”).

The remaining reports were precluded as they were in direct violation of the existing case management order and the court’s December 8, 2003 directive that no further submissions, new or modified, would be accepted. Reports submitted prior to that date were accepted assuming they complied with the legal requirements.

CONCLUSION

For the reasons stated above, this court’s orders precluding testimony and/or granting summary judgment and otherwise dismissing this action should be affirmed.

      . A menagerie of complaints associated with this type of action, too, is listed. However, further elaboration will do little to assist in the court’s analysis.

      . Frye hearing transcript pp. 30-31,59-61 (06/04/04). See also, p. 76 (“Brain atrophy is not discussed in here. Dementia is discussed and dementia is the syndrome that is associated with brain damage and brain atrophy.”).

      . Frye hearing transcript p. 41.

      . Frye hearing transcript pp. 33-34.

      . One study cited, Schmouse (sp) and Craig, Psychological Medicine 869-873, concluded that benzodiazepines caused enlargement of cerebral fluid spaces. The study however does not conclude that such effects are permanent.

      . Frye hearing transcript pp. 45-46, 49.

      . Frye hearing transcript pp. 49, lines 4-12
      “[W]e have about six studies that look at permanent cognitive disorders from these drugs. And those disorders as described fit the criteria for dementia with frontal lobe damage. I don’t know — I’d have to look to see if they specifically say frontal lobe damage. But they described — their experimental studies, they’re not conclusions for a court of law.”

      . Frye hearing transcript pp. 34-35.

      . Frye hearing transcript p. 34.

      . Frye hearing transcript p. 35.

      . Melinda J. Barker et al., “Cognitive Effects of Long-term Benzodiazepine Use, A Meta-Analysis” CNS Drugs 2004 18(1): 37-48.

      . P.R. Tata et al, “Lack of Cognitive Recovery Following Withdrawal from Long-Term Benzodiazepine Use” Psychological Medicine, vol. 24, 203-213 (1994).

      . “One of the primary reasons we embraced the Frye test... was its assurance that judges would be guided by scientists when assessing the reliability of a scientific method____Given the ever-increasing complexity of scientific advances, this assurance is at least as compelling today as it was in 1977, when we decided that case. We believe now, as we did then, that requiring judges to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof, as the Frye rule requires, is the better way of insuring that only reliable expert scientific evidence is admitted at trial.” Grady v. Frito-Lay Inc., 576 Pa. 546, 557, 839 A.2d 1038, 1045 (2003). (citations omitted)

      . If the court misinterprets plaintiffs’ expert and Breggin does contend that the amount prescribed in accordance with the FDA regulations was poisonous, his testimony would be excluded for the same reasons delineated in this opinion.

      . “Dr. Adler’s actions during the above visits were extremely negligent and set the stage for the patient’s future deterioration.” (Breggin report at 4); “Dr. Perkel commits extreme malpractice” (6); “due to negligent prescription practices” (6); “The treatment continues to escalate in negligence” (7); “In a most remarkable act of negligence,...” (8); “The failure to begin medication reduction was extreme malpractice” (8); “It was negligent to ...” (8).

      . Small v. Flock, 407 Pa. 148, 152-53, 180 A.2d 59 (1962) (It is not enough for an expert to say something could have happened or to guess; expert testimony must assert that the result came from the cause alleged).