# Tiburzio-Kelly v. Montgomery

> Superior Court of Pennsylvania · July 15, 1996 · 452 Pa. Super. 158

URL: https://www.frixlaw.com/law-library/cases/9747393

## Case

- **Full name:** Marcia TIBURZIO-KELLY and Francis Tiburzio, Individually and on Behalf of Their Minor Daughter, Lauren Rose Tiburzio, Appellants, v. Bruce MONTGOMERY, M.D., Thomas D. Mull, M.D., Anesthesia Associates of Bryn Mawr, Bryn Mawr Hospital, Appellees
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 15, 1996
- **Citations:** 452 Pa. Super. 158; 681 A.2d 757; 1996 Pa. Super. LEXIS 2133
- **Precedential status:** Published
- **Opinion:** Dissent by Tamilia
- **Judges:** McEwen, Tamilia, Kelly
- **Cited by:** 27 later opinions in the Frix Law Library

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## Opinion text

*192 TAMILIA, Judge,
dissenting:
Plaintiffs Marcia Tiburzio-Kelly and Francis Tiburzio, individually and on behalf of their minor daughter, appeal from the August 22, 1994 Order 1 granting a new trial against defendant Bryn Mawr Hospital, but denying in all other respects plaintiffs’ post-trial motions. The majority has reversed in part and affirmed in part. I respectfully dissent to that portion of the majority’s decision granting a new trial to Marcia Tiburzio-Kelly and her minor child, Lauren Tiburzio, as to all defendants.
In 1984, plaintiffs brought suit against defendants alleging professional negligence during the birth of their daughter, Lauren Rose. The. defendants’ negligence, according to appellants, centered on their failure to properly treat pregnant Tiburzio-Kelly during childbirth, resulting in the permanent physical and mental impairments of Lauren Rose. After a twelve-day trial, the jury found defendants Bruce Montgomery, M.D., Thomas D. Mull, M.D., and Anesthesia Associates of Bryn Mawr (Anesthesia) not liable. While the jury did find appellee Bryn Mawr Hospital negligent with regard to its treatment of Lauren Rose and Tiburzio-Kelly, it was unable to resolve the issue of causation with respect to Lauren Rose, and awarded only Tiburzio-Kelly $25,000 on her claim. Upon consideration of post-trial motions, the court granted a new trial, but only as against defendant Bryn Mawr and with respect to the issues of liability and the damages suffered by Lauren Rose. This appeal followed.
Appellants’ first two issues challenge the propriety of the trial court’s rulings on a pretrial motion in limine and the related expert testimony of plaintiffs’ witness, Dr. Richard Raker. By granting defendants’ motion in limine, the trial court ruled, based on its finding the experts’ reports failed to include any primary theory of liability against Anesthesia, that the plaintiffs could proceed against Anesthesia only with re *193 gard to its possible vicarious liability for injuries incurred as a result of the actions of the individual anesthesiologists. As a consequence of this pretrial ruling, appellant argues, the trial court also improperly limited the scope of Raker’s testimony concerning the negligence of Anesthesia, thereby committing reversible error.
Matters related to the admission or exclusion of evidence are entrusted to the sound discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion or an error of law. Kashner v. Geisinger Clinic, 432 Pa.Super. 361 , 638 A.2d 980 (1994). An expert’s testimony must be limited to the fair scope of his report. Pa.R.C.P. 4003.5(c). Contrary to the majority’s holding, no allegation of primary liability on behalf of Anesthesia had been made prior to trial. Raker’s expert opinions, set forth in reports penned February 7, 1990, April 2, 1990 and June 1, 1990, averred departures from the accepted standards of anesthetic medical care by the hospital, the first call anesthesiologist and the nursing staff. No mention of or reasonable reference to appellee Anesthesia’s direct or primary liability was alleged. Based on this fact, I believe that to allow Raker to testify regarding any direct liability by Anesthesia or its failure to comply with the accepted standard of anesthetic care would have improperly allowed Raker, the expert, to exceed the scope of his written reports offered during discovery. Moreover, as appellees argue and the trial court Opinion reasoned, the trial judge was more than generous in allowing Raker’s testimony to oftentimes stray afield from his written reports and opine regarding the responsibility of Anesthesia for insuring the execution of the rules and regulations in place at Bryn Mawr (N.T., 7/13/93, pp. 410-419). I remain unconvinced the trial court’s rulings so prejudiced the plaintiffs as to necessitate a new trial.
Next, appellants argue the trial court wrongfully refused to allow cross-examination of defense experts Drs. Hughes, Wapner and Brown regarding any potential bias. The bases of their alleged bias follow: Hughes was represented by defendant Montgomery’s attorney on an unrelated matter; and Wapner and Brown were represented, also on unrelated mat *194 ters, by the firm representing Anesthesia. The majority found the trial court erred by denying inquiries into the experts’ possible bias, reasoning a professional relationship between the experts and the attorneys of record, albeit unrelated to the matter before them, was knowledge to which the jury was entitled. Once again, I disagree.
The trial court found such testimony would have been irrelevant and unduly prejudicial, and while the interest in or bias of a witness towards any party in a lawsuit may be exposed upon cross-examination, Price v. Yellow Cab Co., 443 Pa. 56 , 278 A.2d 161 (1971), the trial court does have discretion in determining at which point further cross-examination would be unproductive, Downey v. Weston, 451 Pa. 259 , 301 A.2d 635 (1973), and may properly exclude such evidence if its probative value is outweighed by the danger of unfair prejudice or confusion of issues, Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14 , 473 A.2d 584 (1984). I find plaintiffs’ offer of impeachment evidence was properly excluded as irrelevant and as an extraneous, collateral matter.
With regard to the remaining issues raised by appellants, I concur with the majority’s ruling finding those matters devoid of merit. I would affirm the Order granting a new trial only against defendant Bryn Mawr and as to the issues of liability and damages suffered by the minor child, Lauren Rose.
. See Pa.R.A.P. 341(c). (When more than one claim for relief is presented or when multiple parties are involved, the trial court may enter a final, appealable Order as to one or more parties upon an express determination an immediate appeal would facilitate resolution of the entire case.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747393. Public record. Not legal advice.