Clark v. Hoerner

BECK, Judge,

concurring and dissenting:

I concur in the majority’s resolution of the first three issues. I respectfully dissent from the majority’s conclu *604 sion that the trial court abused its discretion when it permitted the rebuttal testimony of plaintiffs’-appellees’ surprise expert witness.

In its case in chief, appellees attempted to establish that complications of bacterial pneumonia caused Sharon’s death. Appellees’ case was based in part on the theory that defendant-appellant, Dr. Hoerner, acted negligently in failing to order an x-ray when he examined Sharon on December 29, 1980. Appellees argue that the x-ray would have resulted in an earlier diagnosis of bacterial pneumonia, earlier antibiotic treatment, and increased chances of Sharon’s survival. Appellees’ argument is based on the premise that bacterial pneumonia will respond to a course of treatment with antibiotics.

In their case in chief appellants presented conflicting evidence on causes of death. One of appellants’ experts agreed with appellees that Sharon was suffering from bacterial pneumonia while other experts concluded that Sharon was suffering from a mixed variety of pneumonia, bacterial and viral. In addition, under cross-examination, appellants’ witness, Dr. Hewlett, gave an unanticipated interpretation of Sharon’s medical chart. Dr. Hewlett was the emergency room physician on duty when Sharon was admitted to the hospital on December 30, the day after Dr. Hoerner examined her. Dr. Hewlett explained the meaning of a notation he made that day on Sharon’s chart about her medical history. The phrase in question was, “rapid breathing, and fever for several days.” In cross examination Dr. Hewlett testified that “several days” was intended to modify the symptom of “rapid breathing” as well as “fever.” He further stated that “several days” meant at least two days. Although the notation on the chart was available to appellees during discovery, appellees could not reasonably have been expected to anticipate Dr. Hewlett’s unique interpretation of the notation. The trial court aptly described this interpretation of the history as “novel,” and “a diagnostically significant fact not previously discovered.” Until Dr. Hewlett’s testimony, there was no evidence that Sharon had *605 been breathing rapidly on December 29, when Dr. Hoerner last examined her. Therefore, appellees’ expert witnesses in the case in chief did not assess the effect of this symptom in their testimony.

It is noteworthy that during the case for the defense, Dr. Hoerner testified that if Sharon had been breathing rapidly when he had examined her on December 29, he would have ordered a chest x-ray. In other words, Dr. Hoerner and Dr. Hewlett agreed that the presence of rapid breathing on December 29, would have indicated the need for a chest x-ray, as the accepted standard of medical practice. In contrast to Dr. Hewlett, Dr. Hoerner denied the presence of rapid breathing on December 29. Differing from both Drs. Hoerner and Hewlett, appellants’ other expert witnesses, Drs. Sullivan, Weitekamp and Bartlett, testified that they did not believe the standard of care required a chest x-ray on December 29.

With this background, I address the questions raised surrounding the rebuttal testimony of appellees’ expert witness, Dr. G. William Atkinson. The record indicates appellees’ counsel first discussed the facts of this case with Dr. Atkinson, a pulmonary specialist, on Friday, March 8, 1985, after Dr. Hewlett’s testimony revealed that Sharon experienced rapid breathing on December 29. Dr. Atkinson received Sharon’s medical records over the weekend, reviewed them, and discussed the case with appellees’ counsel on Monday evening, March 11. That evening, appellees’ counsel determined the need for Dr. Atkinson to present rebuttal testimony on Wednesday morning, March 13. On March 12, appellants learned appellees intended to call a rebuttal witness, requested further information about the rebuttal, and received none.

When Dr. Atkinson appeared in court on March 13, appellants requested a continuance which was denied. Appellees’ attorney gave an offer of proof and identified the two issues Dr. Atkinson would address in rebuttal. Appellees’ counsel placed Dr. Atkinson’s qualifications on the record but did not provide appellants with his curriculum vitae. *606 Dr. Atkinson then testified as to the significance of Sharon’s rapid breathing on December 29 and as to her cause of death.

I.

The first issue Dr. Atkinson addressed in rebuttal was the significance of Sharon’s rapid breathing of December 29. He responded to a hypothetical question which included evidence of Sharon’s rapid breathing. He testified that the recognized standard of care in the medical community called for a chest x-ray on December 29, in the case of a patient exhibiting Sharon’s symptoms, including rapid breathing.

I would find that this testimony was proper rebuttal.

Dr. Hoerner had denied that Sharon exhibited rapid breathing on December 29. Appellees were not aware of the possibility of Sharon’s rapid breathing on December 29, until appellants’ own witness, Dr. Hewlett, during appellants’ case in chief revealed that the notation he made on Sharon’s chart on December 30 meant that Sharon exhibited rapid breathing on December 29. Appellees did not know and could not reasonably have anticipated this interpretation until Dr. Hewlett’s testimony. Therefore, Dr. Atkinson’s testimony on this issue was proper rebuttal to impeach Dr. Hoerner as well as his supporting witnesses, Drs. Sullivan, Weitekamp and Bartlett.

Appellees’ response to the new interpretation of the evidence was rebuttal as of right. A litigant may offer “rebuttal testimony, and where the evidence proposed goes to the impeachment of his opponent’s witness, it is admissible as a matter of right.” Feingold v. Southeastern Pa. Transp. Auth., 512 Pa. 567, 576 , 517 A.2d 1270, 1274 (1985) (citations omitted). In Feingold , our Supreme Court defines impeachment, in the context of rebuttal, as testimony of other witnesses whose version of the facts differ from that of the witness being impeached. Id. “For matters properly not evidential until the rebuttal, the proponent has *607 a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court.” Flowers v. Green, 420 Pa. 481, 484 , 218 A.2d 219, 220 (1966) (citation omitted).

Generally, the decision whether to admit rebuttal testimony is within the discretion of the trial court. McNair v. Weikers, 300 Pa.Super. 379 , 446 A.2d 905 (1982). Dr. Atkinson also explained an inconsistency in the testimony of appellants’ expert witnesses as to the presence of rapid breathing and as to whether a chest x-ray was essential on December 29. Therefore, even if I were to conclude that Dr. Atkinson’s testimony was not proper rebuttal as of right, I would have to find the court did not abuse its discretion in admitting the testimony.

II.

The second issue Dr. Atkinson addressed in rebuttal was the cause of Sharon’s death. He reinforced appellees’ conclusion presented in their case in chief that the cause of death was bacterial pneumonia. Appellees urge that this was a proper subject for rebuttal because appellants’ witnesses had muddied the waters in the case in chief by presenting conflicting causes of death. Even if appellees’ assessment of appellants’ case was accurate, appellees are not permitted as a matter of right to present testimony in rebuttal when such testimony was properly part of their case in chief. It is axiomatic that it is within the trial court’s discretion to admit or exclude rebuttal testimony which could have been properly presented as part of appellees’ case in chief. Downey v. Weston, 451 Pa. 259, 268-69 , 301 A.2d 635, 641 (1973); Klyman v. Southeastern Pa. Transp. Auth., 331 Pa.Super. 172, 179 , 480 A.2d 299, 303 (1984).

I would not however, find an abuse of discretion. Rebuttal is proper as to matters that require explanation. See Schoen v. Elsasser, 315 Pa. 65 , 172 A. 301 (1934). Appel *608 lants had several eminent medical experts testify that the cause of death was not bacterial pneumonia. However, one of appellants’ witnesses, Dr. Hewlett, as well as all of appellees’ witnesses during the case in chief testified that bacterial pneumonia was the cause of death. Therefore, the court with a view to clarifying this conflicting testimony, did not abuse its discretion in permitting rebuttal.

III.

Consideration must also be given to the consequences of appellees’ counsel’s withholding information about Dr. Atkinson’s rebuttal testimony on March 12, and his calling the doctor as a surprise expert on March 13. Appellees argue their conduct was proper because appellees were under no legal obligation to name Dr. Atkinson on March 12. Appellees contend the discovery rules are not applicable to rebuttal experts.

Counsel’s interpretation of the discovery rules was reasonable in light of the fact that the rules address trial preparation only. I, however, agree with the majority that the rules should be interpreted to prevent surprise and unfairness and would rule so prospectively. I would hold that in the future the discovery rules apply to rebuttal testimony insofar as possible. Pa.R.C.P. 4007.4(1) and 4003.5(a)(1)(a). Although often presentation of rebuttal evidence cannot be anticipated until the defense has presented its case, the plaintiff must anticipate it as soon as possible during defendant’s presentation or after defendant has finished his presentation. Trial preparation does not cease with the commencement of trial.

Although I conclude that the trial court abused its discretion in not granting appellants’ motion for a continuance, I find that the appellants were not prejudiced thereby. Rules 4003.5(b) and 4019(i), Pa.R.C.P., both recognize the need for the court to grant appropriate relief when a party fails to disclose the identity of a witness, even where the failure is *609 excusable. Appellants requested a continuance to ascertain the substance of Dr. Atkinson’s testimony. Had the court granted the continuance, appellants would have discovered the nature of the testimony and Dr. Atkinson’s qualifications. The continuance would have been an appropriate and effective means of curing any unfairness resulting from appellees’ withholding information about the rebuttal witness until the last minute.

However, despite the court’s refusal to grant a continuance, any unfairness that accrued to appellants was largely cured by appellees’ offer of proof. Appellants’ extensive cross-examination of Dr. Atkinson reveals counsel was commendably prepared despite the lack of a continuance. This was in part because Dr. Atkinson relied on Sharon’s medical records, all of which were available to the appellants.

Dr. Atkinson was clearly qualified as a pulmonary specialist and appellees placed his qualifications on the record. Therefore while I do not condone appellees’ action in not providing appellants with the identity and curriculum vitae of Dr. Atkinson, I cannot find that the court’s failure to grant the continuance resulted in prejudicial error.

Furthermore, if appellants were prejudiced it would have been proper and appropriate for them to have requested permission for surrebuttal and for a continuance to prepare the surrebuttal after Dr. Atkinson had testified. I do not suggest that appellants’ failure to request surrebuttal cures the impropriety of appellees’ counsel’s action or results in waiver of the issues related to the rebuttal testimony, but I believe this failure is an indication that the overall effect of the rebuttal testimony did not prejudice appellants.

The “trial court must balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold, 512 Pa. at 573 , 517 A.2d at 1273 . By balancing the facts, the trial court could properly determine that appellants were not prejudiced by the testimony of Dr. Atkinson. Accordingly, I would affirm.