Downey v. Weston

• Decision Date: 16 March 1973
• Citation: 451 Pa. 259,301 A.2d 635
• Parties: Edward F. DOWNEY, Appellant, v. Elva WESTON and Samuel M. Edelson, Appellees.
• Court: Pennsylvania Supreme Court

Page 635

301 A.2d 635

451 Pa. 259

Edward F. DOWNEY, Appellant, v. Elva WESTON and Samuel M. Edelson, Appellees.

Supreme Court of Pennsylvania.

March 16, 1973.

Thomas J. Burke, Ardmore, for appellant

Norman Paul Harvey, Philadelphia, James N. Peck, Norristown, for appellee, Samuel M. Edelson.

Francis Recchuti, Norristown, John F. Naulty, Philadelphia, for appellee, Elva Weston.

Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

On March 30, 1965 the plaintiff-appellant, Edward F. Downey, was involved in an automobile accident with cars driven by defendants Elva Weston and Samuel M. Edelson. In July of 1967 appellant brought this action in trespass against defendants in Montgomery County. The matter was tried to a jury over a period of eight days and a verdict was returned for plaintiff in the amount of $15,455. Unsatisfied with that figure, plaintiff filed a motion for new trial which was denied by the court below. From the judgment entered following that denial the plaintiff brings this appeal. ¹

Following the accident in March, 1965, appellant Downey returned to his work as a milkman. Some months later Downey began to experience pain in his neck and shoulders, pain which soon radiated to his legs. Within a year after the accident, appellant began to lose strength in his arms and legs and experienced difficulty in performing his daily task of milk delivery. On November 4, 1967 Downey suffered a fall at work that precipitated his early retirement from employment. Subsequently appellant's condition was diagnosed as amyotrophic lateral sclerosis (sometimes herein 'ALS'), a relatively rare neurological disorder characterized by progressive deterioration and death of nerve cells located in the spinal column. As the nerve cells die, muscular stimulation is impeded and ultimately blocked altogether; atrophy and paralysis ensue. At the time of trial, appellant was almost totally paralyzed and had a life expectancy of four years.

The chief issue at trial was that of causation, i.e., whether Downey's amyotrophic lateral sclerosis was caused by the trauma he received in the automobile collision with defendants. Plaintiff produced medical experts who testified to their belief that trauma can and in this case did cause the disease. Defendants on the other hand produced experts whose opinion it was that trauma is not a causative factor in the onset of the disease. It is appellant's theory on this appeal (shared by appellees) that '(i)n returning its verdict of $15,000, the jury obviously was compensating Mr. Downey only for injuries other than his condition of mixed amyotrophic lateral sclerosis. The jury did not accept the contention . . . that plaintiff's condition . . . was caused by the trauma involved in the accident of March 30, 1965.' ²

Appellant, although the verdict winner, has appealed, alleging as grounds for reversal and for grant of a new trial a number of errors which he claims prejudicially affected the jury's consideration of either the question of causation or the question of damages. We discuss these contentions seriatim and, finding none which requires a new trial, we will affirm the judgment entered below.

I.

Appellant first alleges that the trial court committed reversible error in restricting cross-examination of a Dr. Brady, one of the defendants' expert witnesses. It appeared that a Dr. Bonner, who was the physician whom Downey first consulted following the auto accident and who also testified on his behalf at trial, had referred plaintiff to Dr. Brady, a specialist in neurological medicine. When called to the witness stand by defendant Edelson, Dr. Brady stated that it was his opinion that Downey suffered from amyotrophic lateral sclerosis and that the disease was not caused by the trauma received by Downey in the automobile accident.

On cross-examination plaintiff's counsel drew out the existence of a close social and professional relationship between Dr. Brady and the lawyer for the co-defendant Weston. The doctor admitted that he had spoken in the living room of his home with that attorney on the eve of the trial and had allowed him to examine a medical file compiled during Downey's earlier consultation in Dr. Brady's office. With that much established, plaintiff's counsel then undertook to show by further cross-examination of Dr. Brady that such pretrial disclosure of plaintiff's medical records without Downey's permission and out of his presence violated the Hippocratic Oath and the Principles of Medical Ethics of the American Medical Association. ³ After objection by defense counsel, however, the court barred this line of cross-examination.

The purpose of all impeachment, of course, is to affect the credibility of the witness. It is beyond question that the interest in or bias of a witness towards either side of a lawsuit may be exposed upon cross-examination, Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971), and that in some instances the blocking of such a line of attack may constitute reversible error. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). The trial court does, however, have discretion in determining the point at which further cross-examination would be unproductive and its ruling will not be reversed save for abuse of discretion. Grzywacz v. Meszaros, 417 Pa. 51, 208 A.2d 237 (1965); Berkley v. City of Jeanette, 373 Pa. 376, 96 A.2d 118 (1953). A physician's personal friendship with a party or a party's attorney can, of course, be shown. Grutski v. Kline, 352 Pa. 401, 43 A.2d 142 (1945). Cf. Goodis v. Gimbel Bros., 420 Pa. 439, 218 A.2d 574 (1966). We think that plaintiff sufficiently established the fact of a personal relationship between Dr. Brady and one defense counsel.

The line of questioning barred by the court below was directed towards establishing that Dr. Brady had misconducted himself (by failure to observe a principle of medical ethics) and that he was, by inference, less likely to be a credible witness than otherwise. It is true that evidence of Some misconduct or Some past events throwing light on human character is admissible on cross-examination, but this is restricted to evidence which bears directly on the witness' 'character for truth'. 3A Wigmore, Evidence § 922, at 726 (Chadbourn rev. 1970). Thus we have held inadmissible as being irrelevant to establishing a witness' credibility the fact that he operated an illegal bar and quarreled with his spouse, Commonwealth v. Gates, 392 Pa. 557, 141 A.2d 219 (1958); the fact that he drove an auto recklessly, Gregg v. Fisher, 377 Pa. 445, 105 A.2d 105 (1954); the fact that he had been convicted of assault and battery, Commonwealth v. Kostan, 349 Pa. 560, 37 A.2d 606 (1944); the fact that he had once been a panderer, McIntosh v. Pittsburgh Railways Co., 432 Pa. 123, 247 A.2d 467 (1968). Similarly, the connection between an alleged breach of a canon of medical ethics and the credibility of the physician on the witness stand is tenuous at most. Its further pursuit here would have been to engage in a collateral inquiry of dubious relevance. We are satisfied that the trial court committed neither abuse of discretion nor error of law in closing this line of inquiry.

II.

Appellant next argues that the court below error in giving the 'diluted' instruction, set forth in the margin, ⁴ relative to defendant's failure to call a Dr. Groff, who had examined the plaintiff at defendants' request.

There is no dispute that appellant in fact suffered from the debilitating effects of ALS at the time he was examined in December, 1969 by Dr. Groff. The issue in the case, as appellant points out, was one of causation: did or did not appellant's sclerosis result from the trauma he had sustained? In support of his theory that it did, appellant produced the testimony of three medical experts. In opposition to that theory, the defense likewise called three medical experts. In all, the record contains hundreds of pages of testimony by these six expert witnesses, virtually all of which is devoted to the question of causation and all of which conclusively demonstrates but one fact: the best minds of medical science are nowise in agreement as to the etiology of amyotrophic lateral sclerosis.

The general principle which appellant here invokes is well stated in wigmore:

The failure to bring before the tribunal some circumstance, document, or witness, when either party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party Fears to do so, and that This fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are always open to explanation by circumstances which make some . . . hypothesis (other than fear) a more natural one . . ..

Wigmore, Evidence § 285, at 162 (1940 ed.) (emphasis added). Two such circumstances which have long been recognized as negating the inference of the non-calling party's fear of adverse testimony are (1) availability of the non-testifying witness to the other party, Bentivoglio v. Ralston, 447 Pa. 24, 29, 289 A.2d 745 (1972); Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); Rice v. Hill, 315 Pa. 166, 172 A. 289 (1934), and (2) the likelihood that the testimony of the non-called witness would be 'unimportant or cumulative or inferior to what is already utilized.' Wigmore, Evidence § 287, at 168 (1940 ed.); Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649 (1930). We find both circumstances present in this case and we are therefore of a view that no instruction, diluted or undiluted, need have been given concerning the failure of the defense to call Dr. Groff.

As to the first circumstance it is apparent that the appellant knew of the existence of Dr. Groff and of the fact...