McSloy v. Jeanes Hosp.

• Decision Date: 22 August 1988
• Citation: 376 Pa.Super. 595,546 A.2d 684
• Parties: Joseph McSLOY and Patricia A. McSloy, Appellants, v. JEANES HOSPITAL, Dr. Michael Lewitt, Stewart Miller and Dr. Venerandao Jaurigue, Appellees.
• Court: Pennsylvania Superior Court

Page 684

546 A.2d 684

376 Pa.Super. 595

Joseph McSLOY and Patricia A. McSloy, Appellants, v. JEANES HOSPITAL, Dr. Michael Lewitt, Stewart Miller and Dr.

Venerandao Jaurigue, Appellees.

Superior Court of Pennsylvania.

Argued June 22, 1988.

Filed Aug. 22, 1988.

Francis X. Nolan, Philadelphia, for appellants.

Barbara A. Magen, Philadelphia, for Jeanes Hospital, appellees.

Felice M. Quigley, Philadelphia, for Jaurigue, appellee.

Before MONTEMURO, POPOVICH and MELINSON, JJ.

MONTEMURO, Judge:

Appellants, Joseph and Patricia McSloy, appeal from the dismissal of their medical malpractice action and entry of non pros for their failure to identify expert witnesses and answer expert witness interrogatories as directed by the trial court. We affirm.

The facts leading up to the dismissal of appellants' cause of action are thoroughly set forth in Opinion of the Honorable Bernard J. Avellino as follows:

On November 2, 1981, Joseph McSloy burned his ankle in an industrial accident and was taken to Jeanes Hospital where he received outpatient care. He was unhappy with his care and, on November 11th, he went to a different hospital where skin graft surgery was performed.

Almost two years later, in September of 1983, he filed this lawsuit charging that certain physicians at Jeanes Hospital were negligent in diagnosing and treating his burns. He claimed that this negligence caused his wound to become infected and require surgery. The surgery, meanwhile, has left him with a permanent scar.

The defendants independently served expert witness interrogatories upon the plaintiff on May 29th and July 12, 1985. Plaintiff did not respond and then ignored a motion to compel answers, which was later filed. As a consequence, Judge Hill entered a routine order directing plaintiff to answer the interrogatories within thirty days or risk sanctions. This order was entered on February 28, 1986.

Plaintiff ignored this order and, on April 7th, the defendants filed a motion for sanctions. Plaintiff responded to this motion, in part, by providing a candid, but useless, answer to the expert interrogatories. The answer he provided is one that is authorized by law, and is commonly referred to as a "Royster response."[ ¹ Moreover, he answered the motion, itself, by raising a question which he framed as follows:

At what point does the expert and the expert's report have to be revealed to opposing counsel?

Plaintiff went on to answer his own question by suggesting that he had the right to postpone answering expert witness interrogatories until such time as the defendants could demonstrate that all four factors described in Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979), were present and justified an extreme sanction like preclusion. If that meant the eve of trial, so be it.

More important, plaintiff explained that he was mindful of his duty to supplement his Royster response, and implied that he would do just that within a reasonable period of time. Judge Hill, in turn, denied defendants' motion for sanctions without prejudice, and invited the defendants to resubmit it "... if [plaintiffs'] answers have not been supplemented as required under Rule 4007.4(1), or have not been provided within a reasonable time, it appearing that this action was started more than three years ago " (Italics ours.)

Judge Hill's order was entered on May 5, 1986. Defendants waited, but plaintiff did not supplement his answers to their expert witness interrogatories. Finally, on November 17, 1986, they resubmitted their motion for sanctions, suggesting that the reasonable period of time which Judge Hill authorized had since expired.

Plaintiff responded to this motion, in part, by asking yet another question.

Does a defendant have the right to dictate the time frame within which the plaintiff must hire an expert?

Meanwhile, we had assumed Judge Hill's duties as Supervising Judge of Discovery. As a result, this motion for sanctions was presented to us. After reviewing the motion and answer, we decided that some sanction was likely and, by interim order dated December 16, 1986, scheduled a hearing for the purpose of determining an appropriate one.[ ² The hearing took place on January 5, 1987, and was transcribed. The notes are part of the record in this case.

At the hearing, plaintiffs' counsel told us that he had made no effort to retain an expert. He said that his client told him early on that some doctor had expressed the view that there had been carelessness. Before beginning this lawsuit, counsel attempted to speak with this physician, and encountered what he described as, "a conspiracy of silence." Otherwise, nothing was done to obtain the services of a medical expert.

We decided that preclusion of expert testimony was the appropriate sanction, and offered an explanation of our reasons on the record. (N.T. page 8.) At this point, plaintiffs' counsel made an oral application that we "reconsider" our order. He urged us to give him another thirty days. We responded as follows:

Court: "Are you telling me you can get an expert in thirty days?"

Counsel: "Yes, sir."

Defense counsel then began posing procedural questions. One asked, for example, if our "reconsidered order" would be self-executing. The other asked what effect, if any, such an order would have upon her identical sanction motion, which had been recently filed, but was not yet ripe for adjudication because of a local rule of procedure. (See Phila. R.C.P. 140.)

In an effort to shorten the paper trail, and in the spirit of Pa. R.C.P. 126, we, in turn, made the following inquiry of plaintiffs' counsel:

Court: "If you don't get a doctor within thirty days, can I simply enter a non pros?"

Counsel: "Yes, sir."[ ³ ]

We then closed the record by repeating our order, "Thirty days or non pros." Later in the day, we reduced our understanding with plaintiffs' counsel to a brief order which could be more easily entered in our dockets than the transcript of the hearing. The order was as follows:

... this 5th day of January, 1987, after hearing, it is hereby ordered that plaintiffs provide expert reports, as previously directed, within thirty (30) days ... or suffer dismissal of the cause.

Plaintiff did not answer the interrogatories within the allotted time, and we did dismiss his action by order dated February 9, 1987. Within thirty days, and after notice to opposing counsel, plaintiffs' counsel appeared before us and asked that we reconsider this sanction. We declined to do so, largely because he had yet to answer the expert interrogatories. The case was simply too old, and counsel offered no extenuating circumstances for his failure to comply with the earlier orders. This appeal followed.

Opinion of the Trial Court at A1-A6.

The sole question before us is whether the trial court abused its discretion in dismissing appellants' malpractice action in light of appellants' failure to provide expert reports or answers to interrogatories within the thirty (30) day period as mandated by trial court's order. Appellants contend that this sanction was inappropriate because appellees have failed to demonstrate that they were prejudiced by appellants' failure to disclose the identity of their expert or their failure to answer the expert interrogatories. Based on our thorough review of the record in this case we find that the trial court's entry of non pros was proper.

Initially we note that while both parties cite cases dealing with preclusion of expert testimony as a sanction for failure to comply with discovery, the order before us is the trial court's entry of non pros pursuant to the agreement with appellants' counsel. ⁴ While the trial court initially decided that preclusion of expert testimony would be an appropriate sanction, it reconsidered its decision in light of counsel's agreement that if he failed to provide expert reports or answers to interrogatories within thirty days, a non pros would be appropriate. Because the subject matter of an appellate court's review is limited to the "final order" of the court below, we are constrained to review only the trial court's order entering a non pros. See Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 538 n. 8, 446 A.2d 1284, 1289 n. 8 (1982) (trial court's order and not its opinion which is the focus of review on appeal). ⁵

The decision of the trial court to dismiss an action for failure to prosecute within a reasonable time will not be reversed absent a finding of a manifest abuse of discretion. Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 449-450, 520 A.2d 891, 893 (1987). The policy behind the rule requiring the plaintiffs to proceed with their causes without unreasonable delay is that if a person has a right which he wishes to enforce, he should do so promptly, so that the other party will not be prejudiced by the possible disappearance or removal of witnesses. Alker v. Philadelphia National Bank, 372 Pa. 327, 331, 93 A.2d 699, 701 (1953). In other words, the logic behind requiring plaintiffs to attempt to vindicate their rights in a speedy fashion or suffer a non pros is the recognition that justice may be better administered when the facts are fresh in the minds of living witnesses who may be reached. See 5 Standard Pennsylvania Practice 136 (1958). In determining whether a non pros is proper, a three-part analysis is employed:

A court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party....

Moore v. George Heebner Inc., 321 Pa.Super. 226, 229, 467 A.2d 1336, 1337 (1983). Prejudice results to the opposing party upon the death or absence of a material witness. However, a finding of prejudice is not limited exclusively to these situations. Rather, prejudice may be said to result...