Arnold v. Loose

• Decision Date: 19 October 1965
• Docket Number: No. 15238.,15238.
• Citation: 352 F.2d 959
• Parties: Kramer D. ARNOLD, Administrator of the Estate of Howard A. Brown, Deceased, v. Emily F. LOOSE, Executrix of the Estate of Warren L. Loose, Deceased, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

352 F.2d 959 (1965)

Kramer D. ARNOLD, Administrator of the Estate of Howard A. Brown, Deceased, v. Emily F. LOOSE, Executrix of the Estate of Warren L. Loose, Deceased, Appellant.

No. 15238.

United States Court of Appeals Third Circuit.

Argued June 18, 1965.

Decided October 19, 1965.

Rehearing Denied December 10, 1965.

COPYRIGHT MATERIAL OMITTED

James J. McCabe, Jr., Philadelphia, Pa. (Robert I. Cottom, Matten & Cottom, Reading, Pa., Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for appellant.

Milford J. Meyer, Philadelphia, Pa. (Charles H. Weidner, Reading, Pa., Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., Stevens & Lee, Reading, Pa., of counsel on the brief), for appellee.

Before McLAUGHLIN, STALEY and FREEDMAN, Circuit Judges.

STALEY, Circuit Judge.

The administrator of the estate of Howard Brown brought an action under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act against the executrix of the Estate of Warren Loose as the result of an automobile accident in Reading, Pennsylvania, in which both Brown and Loose were killed. The case was tried to a jury in the United States District Court for the Eastern District of Pennsylvania in March, 1964. The verdict was for the plaintiff in the Wrongful Death Action in the amount of $25,000 and in the Survival Action in the amount of $17,400. Because of the inadequacy of the verdict, plaintiff moved for a new trial solely on the issue of damages. This motion was granted, the case was retried in September, 1964, and a judgment for plaintiff was entered in the amount of $30,900 in the Death Action and $78,000 in the Survival Action. After a motion for a new trial was denied, defendant took this appeal alleging that the trial judge committed several errors. For the reasons hereinafter stated we affirm the judgment of the District Court.

The uncontroverted facts concerning the accident are these. Shortly after 3:00 PM on June 22, 1960, Loose was driving his Ford Thunderbird automobile in a westerly direction on a four-lane highway known as the Warren Street By-Pass. At the same time Brown, driving his pickup truck, was proceeding east on the same highway. At the end of a gradual curve to the left Loose's car went off the road on to the north shoulder of the highway for a distance of 163 feet, struck a washout on the shoulder and returned to the highway, crossing it at a 45-degree angle. The car then jumped the medial strip dividing the four lanes and collided with Brown's truck in the extreme right lane on the eastbound side. Brown was killed instantly. Loose died twelve hours later. There were several witnesses to the accident. One estimated that Loose was traveling 70 miles per hour while off on the shoulder of the road. Another witness testified that after the collision Brown's truck speedometer was stuck with the needle pointing to 50 miles per hour, which was the lawful speed limit on the highway where the accident occurred.

Appellant first contends that the trial judge erred in striking the testimony of Dr. Yund, an orthopedic surgeon, who was called as an expert witness for the defendant. Dr. Yund had treated Loose in the hospital emergency room shortly after the accident. It was Dr. Yund's testimony that, in his opinion, Loose had lapsed into a diabetic coma, causing the accident. This testimony was stricken because Dr. Yund showed no experience, knowledge or background that would qualify him sufficiently to formulate such a judgment in this particular field.

While it is the law in Pennsylvania that a physician, testifying as an expert, should not be barred from testifying merely because he is not a specialist in the field about which he is rendering an opinion, Taylor v. Monongahela Railway Co., 155 F.Supp. 601, 605 (W.D.Pa.1957), Pennsylvania has not thereby opened the door to such an extent that any doctor can testify about any medical subject without limitation. See Pierkowskie v. New York Life Insurance Co., 147 F.2d 928, 933 (C.A.3, 1945); Sleek v. J. C. Penney Co., 208 F.Supp. 207, 216 (W.D.Pa.1962), affirmed, 324 F.2d 467 (C.A.3, 1963); Gottlob v. Hillegas, 195 Pa.Super. 453, 171 A.2d 868, 872 (1961). On the contrary, the attorney who presents a medical expert has the initial burden of establishing his qualifications to render an opinion in a particular field. The trial judge must then make an estimation of the qualifications and a determination of competence. Pierkowskie v. New York Life Insurance Co., supra, 147 F.2d at 934.

An expert is competent to express an opinion if he has a "reasonable pretension to specialized knowledge on the subject under investigation." DeMarco v. Frommyer Brick Co., 203 Pa. Super. 486, 201 A.2d 234, 236 (1964). He must show at least a general familiarity with the field or that he has had some opportunity or means of acquiring special knowledge or experience with reference to the particular question. 1 Henry, Pennsylvania Evidence, § 563 For example, in the Hillegas case, supra, an expert on peripheral vascular diseases could not render an opinion as to the causal connection of injuries sustained in an accident and the victim's heart condition because the expert admitted he was not qualified to talk about the heart itself. Similarly, in Sleek, supra, a medical doctor was not found competent to testify as to whether hepatitis was related to a patient's trauma, since he did not even know the origin of hepatitis.

What we said in Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 (C.A.3, 1951) is well worth repeating here: "The qualification of an expert is a matter peculiarly within the discretion of the trial judge. It has been reiterated time and again that an appellate court will reverse on this ground only when the decision of the trial judge is clearly erroneous."¹ We have reviewed the record carefully and we conclude that the trial judge did not exceed his discretion. The record shows that when Dr. Yund was called to testify, plaintiff's attorney asked for an offer of proof. The justification offered by the defense for calling Dr. Yund was that he would render this startling opinion as to the cause of the accident. His testimony as it related to the accident was allowed subject only to proof of his qualifications. Thus, the crux of Dr. Yund's testimony was that Loose suffered a diabetic coma before he ran off the road which set off the chain of events that resulted in the collision. The purpose of this, of course, was to exonerate Loose of liability for the death of Brown. Therefore, since Dr. Yund's testimony was relevant only as it related to the cause of the accident, the pivotal determination made by the trial judge, with which we agree, was that Dr. Yund lacked the expertise to say diabetic coma caused the accident.²

Dr. Yund's qualifications revealed no special knowledge in the field of diabetes. By his own admission he had never read any text on diabetes or diabetic comas. He did not know who who was the leading authority on diabetes nor which was the leading treatise. His field of specialization was, in fact, orthopedics. Whether Dr. Yund believed himself qualified is of no significance. The trial judge was clearly within his discretion and we find no error.

One more point must be made in regard to Dr. Yund's opinion. His diagnosis that Loose was in a diabetic coma while being treated in the emergency room was admittedly conjecture on his part, for he had not eliminated the massive brain injury as a possible cause for Loose's comatose state.³ Pennsylvania law is clear that an expert's opinion may not be based on guess or conjecture. Murray v. Siegal, 413 Pa. 23, 195 A.2d 790, 794 (1963). It is obvious that whether or not Loose entered a comatose state subsequent to the accident had no bearing on the question of his negligence.

Appellant would further have us believe that the lower court erred by not giving Mr. Cottom, counsel for the defendant, an opportunity to rehabilitate Dr. Yund after his testimony was stricken. It is impossible to reach such a conclusion from the record. The following colloquy pertaining to this contention bears this out:

"The Court: I will grant the motion. The doctor\'s testimony is stricken and will not be considered by the jury.

Mr. Cottom: That is all. Thank you, Doctor."

Even assuming, arguendo, that Dr. Yund was qualified to express an opinion, the basis of an opinion should rest not only on the facts of record, Murray v. Siegal, supra 195 A.2d at 793, but also without the omission of material facts necessary to form an intelligent opinion. Karavas v. Poulos, 381 Pa. 358, 113 A.2d 300, 304 (1955). The failure of both these prerequisites is clear in this case. Dr. Yund admitted that he based his opinion in part on medical history given to him. This history was not evidence of record. Dr. Yund also admitted that he was totally unaware of Loose's high blood sugar condition that was treated ten years before the accident. He was unaware that it had been diagnosed as the result of an infection and not as diabetes. This is clearly a material fact for Dr. Yund's opinion was based in part on the fact that Loose had high blood sugar when he was brought to the hospital subsequent to the accident. Furthermore, Dr. Yund admitted that he did not know that Loose had attempted to lift himself up two or three times while in his car after the collision.⁴ This undisputed evidence was vital to the question posed to Dr. Yund and necessary to enable him to arrive at an intelligent conclusion. It is particularly important where a jury is likely to be confused. Karavas v. Poulos, supra.

The next two assignments of error may be disposed of briefly. Appellant contends that the question of contributory negligence should have been left to the jury. The trial judge found that there was not "the slightest scintilla of evidence" of any contributory negligence and therefore he properly charged it out of the case. Morran v. Pennsylvania Railroad...