George v. Ellis

DISSENTING OPINION BY

TODD, J.:

¶ 11 agree with the Majority that, under this Court’s decision in Bethea v. Philadelphia AFL-CIO Hosp. Ass’n, 871 A.2d 223 (Pa.Super.2005), the MCARE Act (“Act”) applies retroactively to preclude the testimony of Appellant’s proffered expert at trial. I diverge from the opinion of my learned colleagues, however, and thus dissent because I do not believe Appellant has waived her related claim that fundamental fairness dictates that she be given the opportunity to substitute a new expert. Although Appellant makes only a brief argument in this regard (see Appellant’s Brief at 24), I find that, for purposes of our effective appellate review, the argument requires little elaboration, and thus I conclude she has presented sufficient argument to avoid waiver. Moreover, on the merits, and for the following reasons, I believe that Appellant has been unfairly denied an opportunity to proffer a substitute expert.

¶ 2 A brief review of the procedural chronology is necessary. This case went to trial on May 6, 2002. Appellant called her expert witness, Charles Bull, M.D., to testify and, following voir dire on qualifications, Appellees moved to exclude Dr. Bull as an expert witness contending that he was not qualified as an expert generally under common law principles. 5 (N.T. Trial, 5/6/02, at 56.) The trial court granted Appellees’ motion and, because Appellant had no other expert testimony to offer, granted Appellees a compulsory non-suit on May 6, 2002. Appellant’s timely appeal to this Court resulted in a reversal of the trial court’s order and a remand for a new trial. George v. Ellis, 820 A.2d 815, 819 (Pa.Super.2003) (hereinafter “George I”). We held that, under common law standards for qualifying an expert witness, the trial court erred in not permitting the jury to hear Dr. Bull’s testimony. Id. 6 Following our Supreme Court’s denial of Appel-lees’ petition for allowance of appeal, the case was scheduled for a new trial. At this point, with the weight of our decision in George I behind her, Appellant proceeded with the expectation that her expert would be accepted by the trial court.

¶ 3 On February 18, 2005, as the second trial approached, Appellees moved for summary judgment, arguing that the Act should be retroactively applied to exclude Dr. Bull’s testimony. In her brief in opposition to Appellees’ motion for summary judgment, Appellant argued that, if the Act was retroactively applied to her case, and her expert was precluded, fundamental fairness required that she be afforded the opportunity to substitute a new expert and be granted a reasonable extension of time to do so. (Plaintiffs Brief in Opposition to Motion for Summary Judgment/Motion in Limine, at 8 (R.R. 124a).) Despite its decision to apply the Act retroactively, which led to the granting of Ap-pellees’ summary judgment motion, the trial court denied Appellant’s request.

¶ 4 Because the Act was not in effect at the time of the first trial, and because this Court, in George I, found that Appellant’s expert should have been qualified to testify under common law principles, Appellant *133 had no reason to seek a new expert until Appellees’ motion for summary judgment was filed, giving her notice for the first time that Appellees were seeking to apply the Act retroactively to prevent her expert from testifying. At that point, Appellant sought to proffer a new expert, but that request was denied. In light of the unusual procedural history of this case, I conclude that the trial court abused its discretion by failing to allow Appellant to proffer a new expert witness, and would reverse the trial court and remand on that basis.

¶ 5 Accordingly, I dissent.

. Appellees also challenged the admissibility of Dr. Bull’s testimony under the Act, while acknowledging that the Act would not become effective until May 20, 2002 (14 days later). See 40 P.S. § 1303.512.

. Neither this Court, nor the trial court, made any reference to the MCARE Act.