Petition for Writ of Certiorari — Widell v. Ellison

85-9 21 (')

No.

IN THE

Supreme Court of the United States

CARL E. WIDELL & SONS,

Petitioner

v.

RICHARD AND ANNIE ELLISON

UNDERWOOD MEMORIAL HOSPITAL

TRANSPORTATION INSURANCE COMPANY OF CNA

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Frank X. O’Brien, Esquire*

John J. O’Brien, Jr.

1260 One Penn Center at

Suburban Station

1617 John F. Kennedy Blvd.

Philadelphia, Pennsylvania

19103

* Member of the Bar of the

Supreme Court of the United

States

P / LEGAL B , 10th

QUESTION PRESENTED FOR REVIEW

Whether the Cour: of Appeals correctly affirmed a

District Court’s grant of a motion to strike Petitioner's

Motion for New Trial based on Fed. R. Civ. P. 60(b)(3)

and evidence appended thereto which asserted that the

adverse party engaged in fraud, misrepresentation and

other misconduct to obtain judgment.

TABLE OF CONTENTS

Page

SNUG, Sb wknd bbaccadae¥ceeadeaueeee 1

STATEMENT OF JURISDICTION. ...............55- 1

STATUTORY PROVISIONS INVOLVED.............. 1

STATEMENT OF THE CASE ........... ma vaae ene 2

REASONS FOR GRANTING THE PETITION.......... 4

bP PERRI lp a Fae a eee Seat ea 7

FP s A NGA 0 on 6s 5 50 REE AAO Bees Mh on la

Judgment Order of Cuurt of — (Walter H.

IL BP 5a 55 bs ccree blew es Cares ese ees la

Order Denying Petition for Rehearing of Court

of Appeals (Walter H. Stapieton, J.).......... 3a

Memorandum and Order sur Motion for New

Trial (Ditter, J.)..... ehh os Se roe eee 5a

Memorandum and Order sur Motion to Strike

PR Hida nos 0a cane tad inks eee ae eee l4a

TABLE OF AUTHORITIES

Cases:

Bankers Mortgage Co. v. United States, 423 F.24 73

(ge Speer eee rer oy oe ere 6

Central Operating Co. v. Utility Workers, 419 F.2d

DOB CO G. SI, 000 eC 5

Ervin v. Wilkinson, 701 F.2d 59 (7th Cir. 1983).. 5

Great Coastal Express v. International Broth., Etc.,

630 F.2d TSO (4th Cie GRE)... 6 cc cccccicss. 5

Klapprott v. United States, 335 U.S. 601 (1949)... 5

McKinney v. Boyle, 404 F.2d 632 (9th Cir. 1968). 5

Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d

UD COs GA BEE os ket. s coneecckan ketene 6

iii

Page

Rosier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.

A hee hn ae. sn Fate bdo ba 0000 eae 6

Stridiron v. Stridiron, 698 F.2d 204 (3rd Cir.

RISER TER che Cui Losec roeckeaseadecens 6

Werner v. Carbo, 731 F.2d 404 (4th Cir. 1984)... 5

Statutes and Rules:

ee ke. yk neayeebadveseae sibs 1

EET Ee rar a 2

Federal Rule of Civil Procedure 60....... 1, 4, 5, 6, 7

Eastern District of Pennsylvania Rule of Civil Pro-

ED ens ao bic Ce Shs REE Oban CkCE KA 3

OPINIONS BELOW

No Opinions of the courts below have been pub-

lished. The Court of Appeals for the Third Circuit issued

a summary Judgment Order. la The Order of the Court

of Appeals Sur Petition for Rehearing appears at 3a. The

Memorandum and Order of the District Court regarding

Petitioner's post-trial motions appears at 5a. The District

Court’s Memorandum and Order striking Petitioner's

fraud on the court argument and supporting evidence

appears at 14(a).

STATEMENT OF JURISDICTION

The Judgment of the Court of Appeals for the Third

Circuit bears the date of August 13, 1985. It was entered

on that day. Rehearing was requested by Petitioner.

. Petitioner's request for rehearing was denied by an Order

dated September 30, 1985. Petitioner believes 28 U.S.C.

§1254(1) confers on the United States Supreme Court

jurisdiction to review the judgment in question by Writ

of Certiorari.

STATUTORY PROVISIONS INVOLVED

Rule 60(b) of the Federal Rules of Civil Procedure

provides, in pertinent part:

On motion and upon such terms as are just, the

court may relieve a party or his legal representative

from a final judgment, order, or proceeding for the

following reasons:

* * *

(3) fraud (whether heretofore denominated intrin-

sic or extrinsic), misrepresentation, or other miscon-

duct of an adverse party.

* *. *

2

or (6) any other reason justifying relief from the op-

eration of the judgment... .

STATEMENT OF THE CASE

Federal jurisdiction in this matter was premised on

an amount in controversy in excess of ten thousand dol-

lars ($10,000. ) and diversity of citizenship. Cf. 28 U.S.C.

§1332.

The case was brought by Richard and Annie Ellison

against Carl E. Widell & Son (Widell)' for damages as a

result of personal injuries sustained by Richard Ellison

on September 30, 1981. Richard Ellison alleged he was

at Widell’s business premises for the purpose of obtain-

ing a load of scrap metal. While at the Widell facility, a

crane operated by a Widell employee, John Dickinson,

was used to place scrap metal into the tractor-trailer

driven by Richard Ellison. During the course of the load-

ing process, the block and hook of the crane came into

contact with Ellison's hand.

During the course of pretrial discovery, an employee

of Widell named Edward Toal was deposed on November

22, 1982. At the deposition Mr. Toal testified that he

knew very little about the accident involving Ellison.

Toal further testified that besides the fact he was advised

of the happening of the accident and that Ellison was

injured, he had no other knowledge of the circumstances

surrounding the accident. Mr. Toal specifically denied

having talked to crane operator John Dickinson about

the accident.

At the time of Edward Toal’s deposition, he was an

officer of the Widell corporation.

An attempt was made to schedule the deposition of

crane operator Dickinson. In response to a subpoena,

Mr. Dickinson's physician advised the court and counsel

that the crane operator suffered from a form of mental

1. The corporaion Carl ©. Widell & Son has no parent compa-

nies, subsidiaries or affiliates.

— - -—— —

|

3

illness and that compelled attendance at a deposition or

trial could exacerbate his illness. In response to this ad-

vice, counsel stipulated that Dickinson would be deemed

to be an unavailable witness for the course of the pro-

ceedings.

Shortly after the accident, John Dickinson did give a

hand written statement regarding the happening of the

September 30, 1981, accident. As a result of the above-

mentioned stipulation, counsel for Widell made no at-

tempt to move the crane operator's prior statement into

evidence at trial.

The trial of this case ran from Tuesday, May 24,

1983, to Thursday, June 2, 1983.

Edward Toal was called as a witness for the plaintiff

at trial.2 During the course of his testimony, he stated

-that John Dickinson had admitted responsibility for the

happening of the accident. Mr. Toal’s testimony was in

direct contradiction to his deposition testimony and the

statement of John Dickinson.

Shortly before the trial, Edward Toal had been dis-

missed from his position with the Widell corporation.

A jury verdict was returned in favor of Richard and

Annie Ellison.

Thereafter, the Widell corporation moved, inter alia,

for a new trial on the theory that a fraud on the court had

been perpetrated by the plaintiffs, their witnesses and

their attorney. In support of its “fraud on the court” ar-

gument, Widell appended the statement of John

Dickinson to its brief. The contents of the statement was

heavily referred to in the body of the brief.

In response to Widell’s “fraud on the court” argu-

ment, the Ellisons moved to strike the argument and ex-

punge the Dickinson statement from the record. The

2. It is significant to note that the Ellisons had listed only the

deposition of Edward Toal in their pre-trial memorandum. Over

Petitioner's objection, and in violation of E.D.Pa. R.C.P. 21(d)(1),

Toal was permitted to testify in person and to facts which contra-

dicted his deposition testimony.

4

District Court judge granted Ellisons’ motion and fined

defense counsel one hundred dollars ($100).

The Third Circuit Court of Appeals affirmed the trial

court's failure to consider Widell’s “fraud on the court”

argument without opinion.

REASONS FOR GRANTING THE PETITION

The Petition of Carl E. Widell & Sons, Inc., «wild be

granted because it presents a case where this “ourt

should exercise its supervisory powers. The Court of Ap-

peals for the Third Circuit and the District Court have

sanctioned a departure from the accepted and usual

course of judicial proceedings by not considering

Petitioner's motion for relief from judgment premised on

Fed. R. Civ. P. 60(b)(3) (Rule 60(b)(3)).

Relief from judgments obtained by fraud, misrepre-

sentation, or other misconduct of an adverse party is

clearly permissible under Rule 60(b)(3). Despite the fact

that such issues may be reviewed by the trial judge, in

the present case the trial court refused to consider

Petitioner's motion or its evidence in support of its mo-

tion.

Petitioner's Rule 60(b)(3) motion and evidence ap-

pended thereto presented significant grounds upon

which the trial court could base its review. The motion

identified how the plaintiffs, their witnesses and/or their

counsel distorted the truth regarding Richard Ellison's

injury and the cause of his injury.

Petitioner contends the District Court abused its dis-

cretion by striking its Rule 60(b)(3) motion. Petitioner

further contends that the trial court should have consid-

ered the Rule 60(b)(3) motion so that a determination of

its merits could be made.

It is recognized by the Petitioner that the disposition

of motions under Rule 60(b) ordinarily is a matter within

5

the discretion of the district court which will not be dis-

turbed on appeal absent a showing of abuse of that dis-

cretion. Werner v. Carbo, 731 F.2d 204, 206 (4th Cir.

1984); Central Operating Co. v. Utility Workers, 491

F.2d 245, 252 (4th Cir. 1974). Nevertheless, Petitioner's

claimed that the fraud, misconduct or misrepresentation

of the adverse party prevented it from presenting the

merits of its defense. For this reason, the trial court

abused its discretion by not liberally construing the Rule

60(b) motion. Cf. Ervin v. Wilkinson, 701 F.2d 59, 61

(7th Cir. 1983).

At no time were Petitioner's allegations in support of

its claim that the judgment was obtained by fraud, mis-

conduct or misrepresentation denied by any party to this

suit. Therefore, for purposes of review, such allegations

‘should have been assumed to be true by the District

Court and the Court of Appeals. Cf. McKinney v. Boyle,

404 F.2d 632, 634 & n.2 (9th Cir. 1968), cert. denied,

394 U.S. 992, 89 S. Ct. 1481, 22 L.Ed.2d 1481 (1969);

Klapprott v. United States, 335 U.S. 601, 604, 69 S. Ct.

384, 385, 93 L.Ed. 266 (1949). Therefore, it is

Petitioner's contention that the District Court should

have granted Petitioner the opportunity to establish its

claim at a hearing under Rule 60(b) for relief from judg-

ment under subsection (3) or subsection (6). Cf. Ervin v.

Wilkinson, supra. The District Court should have also

supplemented the record with specific findings of fact

relevant to Petitioner's rule 60(b)(3) motion. Cy. Great

Coastal Exp. v. International Broth., Etc., 639 F.2d 780

(4th Cir. 1980).

While the specific issue raised by the herein Petition

relates to what procedure should be employed when a

motion under Rule 60(b)(3) is made, the issue can not be

addressed without consideration of the integrity of the

trial process. The uncontradicted allegations of

Petitioner's rule 60(b) motion established that the plain-

tiffs, their witnesses and their attorney took advantage of

6

the “unavailability” of a material witness. Such advan-

tage included revision of testimony which directly re-

lated to the issue of liability and which was in direct

contradiction to deposition testimony previously given in

this case.

Rule 60(b) was intended to preserve the delicate bal-

ance between the sanctity of final judgments and the

necessity that justice be done in light of all the facts.

Bankers Mortgage Co. v. United States, 423 F.2d 73, 77

(4th Cir.), cert. denied, 399 U.S. 927, 90 S. Ct. 2242, 26

L.Ed.2d 793 (1970). The Rule was further intended to

prevent a judgment from becoming a vehicle of injustice

and a motion under the Rule was intended to be con-

strued liberally to do substantial justice. Cf. Rosebud

Sioux Tribe v. A. & P. Steel, Inc., 773 F.2d 509 (8th Cir.

1984).

The District Court and the Court of Appeals failed to

consider the principles which serve as the foundation of

Rule 60(b)(3). Further, the courts below failed to allow

Petitioner the opportunity to establish that the plaintiffs,

their witnesses and their attorney engaged in fraud or

other misconduct which prevented Petitioner from fully

and fairly presenting his case. See, Stridiron v. Stridiron,

698 F.2d 204, 207 (3rd Cir. 1983); Rosier v. Ford Motor

Co., 573 F.2d 1332, 1339 (5th Cir. 1978). Rather the

courts below refused to consider Petitioner’ Ss motion

without reason or just cause.

7

CONCLUSION

Since Rule 60(b)(3) provides a remedy for judg-

ments obtained through fraud, misrepresentation and

other misconduct, the courts below should have consid-

ered Petitioner’s motion. In light of the summary dispo-

sition of Petitioner’s Rule 60(b)(3) motion by the courts

below, this Court’s supervisory power should be invoked

to direct a hearing on the motion and to direct the Dis-

trict Court to specifically address Petitioner’s claim in

light of the evidence which supports the claim.

Submitted by

Frank X. O’Brien

John J. O’Brien, Jr.

Attorneys for Petitioner,

Carl E. Widell & Sons

la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-1003

ELLISON, Richard

ELLISON, Annie

VS.

CARL E. WIDELL & SON (INC.)

VS.

UNDERWOOD MEMORIAL HOSPITAL and

TRANSPORTATION INSURANCE

COMPANY OF CNA

Carl E. Widell & Son, Inc.

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Civil No. 82-0297 — E.D.Pa.)

District Judge: Honorable J. William Ditter, Jr.

Submitted Under Third Circuit Rule 12(6)

August 6, 1985

Before: ALDISERT, Chief Judge, and STAPLETON and

MANSMANN, Circuit Judges

2a

JUDGMENT ORDER

After consideration of the contentions raised by ap-

pellant, it is

ADJUDGED and ORDERED that the judgment of

the district court be and is hereby affirmed.

Costs taxed against appellant.

By the Court,

WALTER STAPLETON

Circuit Judge

ATTEST:

SALLY MRVOS

Sally Mrvos, Clerk

3a

UNITED STATES COURT OF APPEALS

i} FOR THE THIRD CIRCUIT

No. 85-1003

ELLISON, Richard

ELLISON, Annie

vs.

CARL E. WIDELL & SON (INC.)

vs.

UNDERWOOD MEMORIAL HOSPITAL and

TRANSPORTATION INSURANCE

COMPANY OF CNA

Carl E. Widell & Sons, Inc.,

Appellant

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ, ADAMS, GIB-

BONS, HUNTER, WEIS, GARTH, HIGGINBOT-

; HAM, SLOVITER, BECKER, STAPLETON, and

i MANSMANN, Circuit Judges

4a

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

whe participated in the decision of this Court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in banc, the pe-

tition for rehearing is denied.

By the Court,

WALTER K. STAPLETON

Circuit Judge

Dated: September 30, 1985

5a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD ELLISON and ANNIE ELLISON : CIVIL ACTION

No. 82-0297

v.

CARL E. WIDELL & SONS, INC.

and

UNDERWOOD MEMORIAL HOSPITAL

MEMORANDUM AND ORDER

DITTER, J. December 17, 1984

Plaintiff Richard Ellison was employed as a truck

driver for a metal salvage company and went to the yard

of defendant, Carl E. Widell and Son, Inc., to pick up

scrap. During its loading, plaintiff was injured when his

hand was pinned between the truck side and the hook of

a crane operated by defendant’s employee. A jury con-

cluded the crane operator was negligent and awarded

plaintiff damages. Defendant's post trial motions are now

before me.

Defendant first contends a new trial is warranted be-

cause on two occasions the topic of insurance was im-

properly brought to the attention of the jury.

Significantly, in both instances, I offered to give a cau-

tionary instruction, a suggestion which defense counsel

refused. This is not to say, however, there was any prej-

udice from either event.

Turning to defendant's first contention, I note ini-

tially that it is directed to an incident when the actual

word, “insurance,” was never used. This is what oc-

curred: In recounting who was present at an onsite ex-

amination of the crane, a witness noted that “John

6a

O’Brien, attorney for General Accident” was there. N.T.

3-136. There was no suggestion that General Accident

was an insurance company, much less that it was

defendant’s liability carrier. To justify granting a new

trial | would have to connect three unwarranted assump-

tions: first, the jury knew the words, General Accident

referred to an insurance company; second, the jury con-

cluded this particular insurance company, General Ac-

cident, provided liability coverage to defendant, and

third, this knowledge in some unexplored way preju-

diced the defendant. I am unable to make these levia-

than leaps of illogic.

The second occasion was equally harmless. A wit-

ness identified a letter as coming from the Westmoreland

Casualty Company, Westmoreland provided workman's

compensation coverage to plaintiff's employer and had

no connection with the case at bar. Again, defense coun-

sel refused my offer to explain this to the jury. N.T. 5-9

to 10. Also, it should be noted that this testimony came

in by way of videotape deposition to which no prior ob-

jection had been made. Again, there was no prejudice of

the magnitude required to obtain a new trial, and even if

there was prejudice, it came from counsel's refusal of a

cautionary instruction. No new trial is warranted.

Defendant next contends it was error to permit

Edwin Toal, a witness not listed in plaintiff's pre-trial

order, to testify. However, it is clear the ruling was cor-

rect when measured by the standards announced in

Meyers v. Pennypack Woods Home Ownership Associa-

tion, 559 F.2d 894, 904 (3rd Cir. 1977). Toal was a

known witness. Both parties were aware of his knowl-

edge of pertinent facts and he was listed as a trial witness

in defendant's pre-trial order. N.T. 6-24. Toal’s testimony

contained no surprises. He had informed both his em-

ployer and defense counsel that the crane operatior, John

Dickerson, admitted he had been negligent. N.T. 3-90.

The defendant also contends Dickerson’s statement

to Toal, should have been excluded as hearsay. However,

7a

what Dickerson said was not hearsay but rather an ad-

mission by a party-opponent. See Federal Rule of Evi-

dence 801(d)(2)(D).' Furthermore, because Dickerson

was admittedly not available to testify, see N.T. 5-37, the

statement, if hearsay, was admissible as a declaration

against interest and thus as an exception to the hearsay

rule. Federal Rule of Evidence 804(b)(3).

Next, defense counsel assigns error to my refusal to

let him cross examine Toal about a conversation Toal

had with Steven Beckett, who had taken plaintiff to the

hospital after the accident. This was a classic case of dou-

ble hearsay and while it may have been admissible as an

admission against interest, if introduced through

Beckett, it was Toal and not Beckett who was on the wit-

ness stand.

Defense counsel further argues that the fact that the

conversation took place, quite apart from its content, had

evidentiary value to impeach Beckett. He bases this con-

tention on the following portion of Beckett's direct ex-

amination:

BY MR. PLAUM:

Q. During the 5-minute ride did he have any con-

versation with you?

MR. O'BRIEN: Objection, sir.

1. “In most common law jurisdictions, a statement by an agent

or servant can only be used against the principal if the agent or

servant is employed for the purpose of making such statement.

There is a trend, however, to admit statements relating to a matter

within the scope of the agency of employment. Federal Rule

801(d\(2\D) follows this trend and departs from the common law.

A typical case is one where a driver of a truck owned by someone

other than the driver (e.g., an employer) allegedly runs a red light.

An accident occurs, and the driver apologizes to the other party in-

volved in the accident and comments that he is sorry that he ran the

red light. . . . The new Rule would permit the statement to be used

against the employer-owner as well as against the driver.” S.

Saltzburg and K. Redden, Federal Rules of Evidence Manual (2d

Ed., 1982) 502.

8a

THE COURT: Sustained.

BY MR. PLAUM:

Q. Did Mr. Ellison talk to you?

MR. O'BRIEN: Objection, sir.

THE COURT: Sustained.

BY MR. PLAUM:

Q. What, if anything, did Mr. Ellison say to you?

MR. O'BRIEN: Objection, sir.

THE COURT: You have already asked him that, |

think.

MR. PLAUM: No, I didn’t ask him during the

5-minute ride to the —

THE COURT: I thought you did. I will let you ask

him one more time.

BY MR. PLAUM:

Q. All right. What, if anything, did Mr. Ellison say to

you during that ride to the hospital?

A. There was no conversation. He was just — “I will

get you there,” that’s what I told him, and that was

the main thing, to get him to the hospital. pene

added) N.T. 2-14.

On cross examination, Beckett was not asked about any

conversation which he had had with plaintiff.

When defense counsel sought to elicit from Toal

what Beckett had said about a conversation with plain-

tiff, this is what occurred:

BY MR. O'BRIEN:

Q. Did Steven Beckett tell you he took Mr. Ellison to

the hospital?

MR. PLAUM: Objection.

9a

THE COURT: Yes, sustained.

BY MR. O'BRIEN:

Q. Did he tell you he had a conversation with Mr.

Ellison on the way to the hospital?

MR. PLAUM: Objection.

: THE COURT: Sustained.

: BY MR. O'BRIEN:

Q. Mr. Toal, did you relate to me the substance of a

conversation that you had with Steven Beckett about

Mr. Ellison’s accident?

MR. PLAUM: Objection.

THE COURT: Sustained.

MR. O'BRIEN: I’m just asking him whether he re-

lated it to me or not. That is not objectionable.

THE COURT: Well, — all right, I will let you answer

that.

A. Yes, I did.

Q. Would you tell us what you related to me in that

respect, sir?

| MR. PLAUM: Objection.

THE COURT: Sustained.

MR. O'BRIEN: No further questions. N.T. 3-98 to

99.

There was no way for me to know that counsel was

seeking to impeach Beckett. Federal Rule of Evidence

103(2) requires an offer of proof under such circum-

stances. Whatever dubious value there might have been

to whatever response Toal might have made, its exclu-

sion under the circumstances was not error.

10a

Defendant next contends that my refusal to instruct

the jury on the “master-servant/borrowed employee”

doctrine was error. The evidence showed that

defendant's employee, Dickerson, was operating the

crane from a position in its cab. He was unable to see into

the body of the truck which he was loading. Therefore,

plaintiff gave hand signals to tell Dickerson whether a

load should be to the left, right, forward, or back.

Counsel contends that this made Dickerson a borrowed

servant of plaintiff's employer, and thus plaintiff's fellow

servant. From this argument, defendant proceeds to the

assertion that plaintiff has no right to recover from de-

fendant because he was injured by a fellow servant and

thus is relegated to his rights under the workman's com-

pensation laws.

Counsel confuses the giving of hand signals with the

exercise of a right to control. Plaintiff's employer was

S. D. Richman and Sons. It is elementary that Dickerson

could only have become the servant of Richman if Rich-

man had agreed to the arrangement and if the defendant

had also done so. There was no arrangement, no agree-

ment. Even if there had been an agreement, an analysis

of the facts show plaintiff did not exercise any control

over Dickerson. He did not tell Dickerson where to place

the crane, which lever to engage for what purpose, how

much power to use, the angle at which the boom was to

be placed, how high a given load should be raised, the

speed at which it should be lowered, or anything else

about how Dickerson was to do his job. Plaintiff merely

gave hand signals. Plaintiff did not tell Dickerson when

to start work or when to stop. He did not provide the

crane or maintain the crane. He did not train Dickerson,

test Dickerson, or pay Dickerson. He made no requests

of defendant about Dickerson. His contacts with

Dickerson were momentary and fragmentary. The work

Dickerson was doing was for defendant's benefit, not

plaintiff's. The hand signals were given to help

lla

Dickerson, not plaintiff. Neither Dickerson nor the plain-

tiff had any thought that they were creating the relation-

ship of servant and master between Dickerson and

Richman. See Kelly v. Southern Pacific Company, 419

US. 318, 324, 95 S. Ct. 472, 476 (1974), citing with ap-

proval Restatement (Second) of Agency §227 which in

turn refers to §220(2).

Defendant's assertion of the borrowed servant doc-

trine is factually ludicrous and legally late. It was not

raised in the answer or in the pre-trial order. It was not

until defendant moved for a directed verdict that this

question was brought up. It is also noteworthy that de-

fendant offered no evidence to support this theory. In

short, the borrowed servant doctrine is a non-issue in

| this matter.

' Defendant next argues this court lacked jurisdiction

over it. First, I note defendant was registered to do busi-

ness in Pennsylvania, and as such, could be sued here.

N.T. 5-38. 42 Pa. C.S.A. §5301(aX(2\(i). Secondly, de-

fendant, in answering both deposition questions and in-

terrogatories, admitted it did business within the

Commonwealth of Pennsylvania. N.T. 5-42 & 5-46 to 47.

Jurisdiction was properly exercised.

Finally, defendant asserts it was error to grant the

motion of the third party defendant, Underwood Memo-

rial Hospital, for a directed verdict. Relying on what it

views as “contradictory testimony” between two doctors,

defendant states the claim against the hospital should

have been submitted to the jury based upon the evidenti-

ary rule of res ipsa loquitur. See Jones v. Harrisburg

Polyclinic Hospital, 437 A.2d 1134 (Pa. 1981). Even if

the doctors’ testimony could be characterized as contra-

dictory, a view I do not share, defendant presented no

expert evidence to support its claim against Underwood.

while I agree that expert testimony is not a per se re-

quirement in medical malpractice cases, it is a require-

ment “when there is no fund of common knowledge

from which laymen can reasonably draw the inference or

12a

conclusion of negligence.” Jones, 437 A.2d at 1138. Con-

tradictory testimony in and of itself does not lead to the

conclusion that someone was negligent. Here, there was

no fund of common knowledge about the proper treat-

ment of hand injuries.

Defendant’s theory of liability against Underwood

was that the failure to diagnose plaintiff’s injury prop-

erly, permitted gangrene to develop and made amputa-

tion of his finger necessary. The only medical testimony

presented, however, was to the contrary. For example,

Dr. Beller, a board certified orthopedic surgeon, testified

that “the accident of 9/30/81 was the only cause of his

[plaintiff’s] injuries. N.T. 2-145 & 2-180 to 89. Dr. Beller

continued stating the treatment received by the plaintiff

at Underwood “was proper,” N.T. 2-153, and he would

have done “exactly what was done here.” N.T. 2-168. Dr.

Osterman, an expert hand surgeon, testified to the same

effect. Osterman Deposition at 79 to 80; 90 to 91; 127 to

_ 130. In short, the medical testimony was that amputa-

tion often times occurs from “crush” injuries such as the

one suffered by plaintiff, regardless of the course of med-

ical treatment undertaken. Furthermore, based upon all

the evidence, I concluded the only inference the jury

could draw was that Underwood's treatment did not

cause or aggravate plaintiff's injury. It would have been

reversible error for me not to have granted Underwood's

motion for a directed verdict. See Jones, 437 A.2d at 1137.

For all the above reasons, defendant’s motions must

be denied.

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13a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD ELLISON and ANNIE : CIVIL ACTION

ELLISON No. 82-0297

V.

CARL E. WIDELL & SON, INC.

UNDERWOOD MEMORIAL HOSPITAL

TRANSPORTATION INSURANCE

COMPANY OF CNA

ORDER

AND NOW, this 17th day of December, 1984, for the

' reasons expressed in the attached memorandum, defen-

dant, Carl E. Widell & Son, Inc.’s motion for judgment

notwithstanding the verdict, or in the alternative for a

new trial is denied.

BY THE COURT:

{4a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD ELLISON and : CIVIL ACTION

ANNIE ELLISON No. 82-0297

VU.

CARL E. WIDELL & SON, INC.

and

UNDERWOOD MEMORIAL HOSPITAL

MERMORANDUM AND ORDER

DITTER, J. June 25, 1984

In this personal injury case, John Dickerson, a crane

operator employed by defendant, was found to have been

negligent. Defendant moved for judgment notwithstand-

ing the verdict alleging it was obtained by the fraud of

plaintiffs and perhaps that of their counsel. In support of

its allegations, defendant submitted an unsworn state-

ment given by Dickinson. This statement differed from

the facts attested to by two trial witnesses. The differ-

ences, however, were never presented to the jury be-

cause, in accordance with the terms of an’ agreement

between counsel, Dickinson did not testify in the original

proceedings. Plaintiff now moves to strike Dickinson’s

statement and to impose costs on defendant’s counsel.

This motion must be granted.

Although John Dickinson’s statement shows his rec-

ollection of the events surrounding the accident differed

from those of other witnesses, there is no proof as to

which is correct. The differences between them are

hardly irreconcilable. It is for a jury to weigh contradic-

tory testimony. Absent such testimony being newly dis-

covered, it is not properly presented for the first time in

a post-trial motion and in no event, by a self-serving,

15a

unsworn statement of a witness who has not been cross-

examined. While a different conclusion might be war-

ranted if some newly discovered evidence suggested the

possiblity of perjury on the part of trial witnesses, not

even a scintilla of evidence has been advanced on this

score. Defendant has merely shown that three people

may have different recollections of the same event.

I find unpersuasive defendant's purported justifica-

tion grounded in its being unable to present Dickinson's

version of the facts at trial. Defense counsel stipulated

not to call Dickinson. If the stipulation barred introduc-

tion of evidence favorable to his case, he can neither

complain nor introduce the statement now. I also find

unpersuasive defense counsel’s purported justification

grounded in his duty under Disciplinary Rule

_ 7-102(B)(2). Simply put, that rule requires disclosure of

fraud to the court, but in this case there is no evidence

of fraud.

In short, defendant now seeks a second bite at the

proverbial apple through an unsworn fact witness not

offered at trial. Because this is not a newly discovered

witness, there can be no justification for attempting to

introduce his statement at this late date. To sanction

such conduct would be to encourage an attorney to put

aside a bit of evidence for the rainy day of an adverse

verdict with the expectation of then using it as grounds

for a new trial.

The absence of justification for defense counsel's

scandalous allegations of fraud and his improper attempt

to introduce a fact witness not presented at trial, espe-

cially when viewed together with defense counsel’s ex-

perience and ability, shows bad faith. Counsel’s conduct

can only be characterized as vexatious and intended to

multiply these proceedings unreasonably. As a sanction

for this conduct, counsel for the defendant will be re-

quired to pay counsel for the plaintiff the sum of $100.,

in partial reimbursement of counsel fees unnecessarily

incurred in connection with this motion.

16a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD ELLISON and : CIVIL ACTION

ANNIE ELLISON No. 82-0297

V.

CARL E. WIDELL & SON, INC.

and

UNDERWOOD MEMORIAL HOSPITAL

ORDER

AND NOW, this 25th day of June, 1984, it is hereby

ordered that:

1. Plaintiffs’ motion to strike is granted.

2. Defendant’s counsel shall, within ten days, pay to

counsel for plaintiffs the sum of $100.

BY THE COURT: