McCann v. Amy Joy Donut Shops

*345 CAVANAUGH, Judge,

dissenting:

I respectfully dissent. Following a verdict for the defendant, appellants sought a new trial asserting in their briefs and arguments three allegations of error. The motion for a new trial was denied and the present appeal based on the same issues was pursued. I would find that the trial court erred in charging the jury that contributory negligence is a defense to strict liability. Berkebile v. Brantly Helicopter, 462 Pa. 83 , 337 A.2d 893 (1975) and that error was also committed when the court gave the uncalled witness charge in inappropriate circumstances. Bentivoglio v. Ralston, 447 Pa. 24 , 288 A.2d 745 (1972). I would further find that both errors were clearly prejudicial and would, therefore, grant a new trial.

The majority, without passing on the merits of the only issues presented on appeal affirms the trial court in the denial of a new trial on the ground that the erroneous instructions could not have been responsible for the verdict. The majority finds that the expert medical testimony was not expressed with reasonable certainty and presumably concludes that for this reason a verdict for appellant could not properly be reached. I must disagree for a number of reasons.

I

The rule that error must be harmless does not give a court on review the right to search the entire record to determine if there is any unpreserved error to justify finding assumed, or found error to be, nevertheless, harmless. Here, the trial court sent the issue of causation to the jury. Appellee, through his trial attorney apparently found no error in this since he stated that he was satisfied with the instructions save for the refusal of his single request for binding instructions. Nor does the majority show where in the trial record any assertion was made that the medical causation issue was insufficient to create a jury question. Consequently, I believe the majority reached its dispositive issue in violation of the most fundamental precepts of the *346 waiver doctrine under Pennsylvania law. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974). Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974).

II

In bypassing the preservation principle, the majority places Amy Joy in a better position than they would be if the appellee had carefully preserved the medical causation issue. Let us suppose that objection had been made at trial, and to the charge, that there was not competent evidence as to medical causation and that this argument was preserved in post-trial motions and on cross appeal to this court (in the context of a claim that even if McCann is able to show error which would merit the grant of a new trial, the lack of sufficient evidence of causation would prohibit the grant of a new trial since the remedy for insufficiency is not the grant of a new trial, but affirmation of the judgment). I submit that if appellee had done all those things we would have had to disagree — for the remedy for improperly permitting incompetent evidence is not to affirm a judgment or grant judgment n.o.v. but only to grant a new trial, since it is the law of this Commonwealth that judgment cannot be entered on a diminished record. In Rodgers v. Sun Oil Co., 189 Pa.Super. 559 , 151 A.2d 673 (1959) in a case where evidence was improperly considered as proof of negligence the court stated:

The lower court properly refused to enter judgment for the defendant; judgment n.o.v. could not have been entered on the diminished record after elimination of the incompetent testimony of the plaintiff [citing cases] and the grant of a new trial was the only alternative.

Accord: Hughes v. John Hanna and Sons, 187 Pa.Super. 466 , 144 A.2d 617 (1958); Finkleston v. Kapnek, 184 Pa.Super. 174 , 133 A.2d 310 (1957).

Similarly, in a case dealing with the precise issue addressed by the majority, our Supreme Court, through Mr. Justice O’Brien, concluded, after finding inadequate causative medical testimony; “[b]ecause Mrs. McMahon’s doc *347 tor’s testimony was not made with sufficient certainty, it was not legally competent evidence and a new trial must be granted.” (Emphasis added.) McMahon v. Young, 442 Pa. 484, 486 , 276 A.2d 534, 535 (1971). See also Wargo v. Pittsburgh Railways Co., 376 Pa. 168 , 101 A.2d 638 (1954). I, therefore, believe that, even if the majority was correct in reaching and deciding the causation issue, the conclusion that no new trial should be granted is erroneous.

Ill

I disagree with the majority in its conclusion that the expert medical testimony did not present sufficient evidence of causation. In the leading case of Menarde v. PTC, 376 Pa. 497 , 103 A.2d 681 (1954) Justice Chidsey stated the standard for sufficient expert testimony as to medical causation, “[mjoreover the expert has to testify not that the condition of the claimant might have, or even probably did, come from the accident, but that in his professional opinion the result came from the cause alleged.” (Emphasis added)

It is true that this simple formula has, in more recent years, been complicated by the implied requirement that the witness must be asked if he has an opinion “with reasonable medical certainty”. See, for example, Walsh v. Snyder, 295 Pa.Super. 94 , 441 A.2d 365 (1981); Commonwealth v. Alston, 269 Pa.Super. 573 , 410 A.2d 849 (1979); Ranieli v. Mutual Life Ins. Co., 271 Pa.Super. 261 , 413 A.2d 396 (1979). One may ask what usage or clarity this phrase adds for, indeed, there are no degrees of certainty and the only issue is the basic one of, “What is your opinion?”. But, no matter, since counsel in our case used the proper new phrase in asking the question and so long as the question is responsively answered and an affirmative opinion given it suffices. What then is the shortcoming? As the majority states, Dr. Crone answered the crucial question in part, “[tjhen I went on to say, 'the ingestion of these donuts apparently caused an acute gastritis which, in turn, caused an increased acidity and spasms of the stomach.’ ”

*348 I must disagree with the majority that the use of the word “apparently” weakens in any way the expert opinion. It may, in fact, be read to strengthen it, since a first meaning of this word is “clear or manifest to the understanding” Webster’s Collegiate Dictionary. My reading of Dr. Crone’s testimony leads me to conclude that it fully meets our requirements as to expert medical opinion. See also Walsh v. Snyder, supra.

IV

While the majority speaks to the degree of medical certainty issue in its disposition, it also alludes to the issue in a different fashion wherein it states that “causation, an essential element of a strict liability claim, was not in evidence.” (Page 342.) Further suggestion that this may be the ground for the majority disposition is found in the conclusion that all of appellants’ allegations of error “relate solely to strict liability.” (Page 342.) Initially, I disagree with the latter conclusion since the “uncalled witness” claim of error clearly relates to both the strict liability and negligence theories. But, more basically, I believe that strict liability causation and medical causation are two different issues, not to be confused. The rule as to strict liability has been cogently stated:

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff’s injuries.

Berkebile v. Brantly Helicopter Corp., 462 Pa. 83 , 337 A.2d 893 (1975).

As pointed out in Berkebile there is injury without a defect (developing diabetic shock from eating sugar) and sometimes there is a defect without causation (sustaining an eye injury while not wearing defective safety glasses). In our case, we have evidence of a defect (greasy donut) and an injury (acute gastritis and its aftermath) and the *349 problem is the link between the two. 1 Although this is really a dual issue of strict liability causation and medical causation they need only be answered by one opinion so long as the more strict standard of proof is used. Thus, since I believe the medical standard (“In my opinion” or “In my opinion based upon reasonable medical certainty”) represents the more stringent measure of proof I conclude proof that the testimony was more than adequate to present the strict liability theory to the jury.

. In many cases, the two "causation” issues may be easily separated. In a case where there is a claim of an arthritic condition as a result of a fall caused by defective equipment, for example, there may be a question; (A) whether the alleged defect in the equipment was the cause of the fall and (B) whether, as a result of the fall, the claimant suffered arthritis.