Bashir v. Ajaye

14 Pa. D. & C.5th 129
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 12, 2010
Docketno. 0551
StatusPublished

This text of 14 Pa. D. & C.5th 129 (Bashir v. Ajaye) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bashir v. Ajaye, 14 Pa. D. & C.5th 129 (Pa. Super. Ct. 2010).

Opinion

RUSSELL, J,

Plaintiff-appellant, Muhammad Bashir, and plaintiff-appellant, Rubina Bashir, brought this action against defendant-appellee, Robert Ajaye, administrator of the estate of Arnold Ajaye to recover damages stemming from a rear-end collision that occurred on January 17, 2004. At trial, plaintiffs asserted that defendant’s negligence in the operation of his vehicle was the factual cause of plaintiffs’ injuries. A jury trial commenced before the Honorable Edward Russell on September 8, 2009 and the jury returned a verdict in favor of the defendant on September 9, 2009. The jury found that the accident was not the factual cause of the plaintiffs’ lower back pain.

On September 21, 2009, plaintiffs filed a post-trial motion requesting a new trial. Defendant replied on October 16, 2009. On November 20, 2009, this court heard oral argument on plaintiffs’ post-trial motion and entered an order denying plaintiffs’ post-trial motion on November 23, 2009. On December 23, 2009, plaintiffs filed a notice of appeal regarding this court’s order denying plaintiffs’ post-trial motion. On December 23,2009, this court entered judgment on the verdict.

[131]*131On February 1, 2010, this court ordered plaintiffs to file and serve on the trial judge a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 25 days from the date of the order. Plaintiffs filed their statement on February 19,2010. In their statement, plaintiffs contends:

“(1) The trial court erred in admitting the videotaped deposition of the defense medical expert, Dr. Brooks. The deposition of Dr. Brooks was obtained ex parte and in violation of a prior order of this court, precluding the defendant from offering any defense to plaintiffs’ claims.
“(2) Plaintiffs were required to subpoena defendant’s expert physician witness to testify at the trial of this matter because the defendants had obtained ex-parte videotaped deposition of the witness in violation of a court order. At the time this witness was scheduled to appear and testify, plaintiffs’ counsel requested the trial court compel the witness to honor the duly issued subpoenas served upon the doctor to appear and testify at trial. The trial court refused in the apparent belief that it could not compel a physician witness to testify at a trial and that it could not direct such physician to produce reports of other medical-legal examinations performed by him. In so holding, the trial court erred.
“(3) Plaintiffs obtained preclusion and judgment against defendant on the issue of liability for his default in failing to produce discoverable documents in his possession; failing to appear for depositions; and failing to answer interrogatories. This sanction was later allegedly vacated and was insufficient in any event in light of the [132]*132egregious nature of defendant’s conduct. Plaintiffs should have been given judgment on the issue of causation and this matter should have been submitted to the jury solely for the purposes of assessing damages.
“(4) The trial court erred in refusing to enforce the subpoena issued to the defendant’s insurance company and in failing to require the full disclosure of all of the insurance company’s files and testimony by the custodian.
“(5) The trial judge erred and abused his discretion in repeatedly engaging in conduct that prejudiced the plaintiffs and prohibited counsel from developing a proper record for appellate review. Plaintiffs’ counsel made numerous requires at sidebar conferences and in the robing room to have various objections placed upon the record. The trial court refused to allow counsel to make such objections and further threatened the declaration of a mistrial of counsel offered any statements regarding such objections before the stenographer in open court. In so acting, the trial judge abused his discretion and erred as a matter of law.
“(6) The trial court erred with regard to the limitations it imposed on plaintiff’s evidence with respect to economic damages. At trial, plaintiffs intended to introduce evidence regarding his actual income loss as calculated by his average declared income tax earnings averaged over a period of prior years. In addition, however, the plaintiffs sought to present evidence regarding his loss of earning capacity arising from the accident. The trial court erroneously refused such evidence.
“(7) To the extent the jury’s verdict represents a finding that the issue of causation was not established with [133]*133regard to plaintiff-husband’s injuries, this too is error. Where there is no dispute that the defendant is negligent and the medical evidence unequivocally indicates that the accident caused some injury to the plaintiff, the jury may not find that the defendant’s negligence was not a substantial factor in bringing about at least some of the plaintiff’s injuries. In refusing to set aside the verdict, the trial court erred.” Plaintiffs’ statement of errors complained of an appeal filed on Februaiy 19, 2010 at 1-4.

Plaintiffs appeal this court’s decision to deny post-trial relief. As presented in plaintiffs’ 1925(b) statement of February 19, 2010, plaintiffs finds error with this court’s rulings. For the following reasons, this court’s ruling should be affirmed.

I. BACKGROUND

At trial, plaintiffs alleged that Ajaye was negligent when, on January 17, 2004, at or near an on ramp on Route 676 heading toward Center City, Philadelphia, his vehicle bumped into the rear-end of plaintiff’s vehicle, which plaintiff Muhammad Bashir was operating. N.T. 9/8/09, at 30-32. Both cars were drivable from the scene of the accident. N.T. 9/8/09, at 60. Following the accident, plaintiff Muhammad Bashir drove himself to Jeanes Hospital, where he was treated and released. N.T. 9/8/09, at 60. He continued to seek treatment through his doctor, where he received physical therapy for about six months. N.T. 9/8/09, at 42. He was also seeing a spine specialist, who prescribed pain medications. N.T. 9/8/09, at 48.

Plaintiff Muhammad Bashir also testified that he did not receive a performance-based promotion because his [134]*134performance at work was down due to the accident. N.T. 9/8/09, at 51. Plaintiffs also presented the videotaped testimony of Dr. Randall Smith. N.T. 9/8/09, at 105. Defendant presented the videotaped testimony of Dr. Michael Brooks. N.T. 9/8/09, at 114.

At the conclusion of the testimony, this court charged the jury. This court explained that the jury must be the final finders of fact and that they must weigh all the evidence in reaching their final conclusion.

II. DISCUSSION

(A) The Court Properly Allowed the Testimony of Defendant’s Medical Expert Witness, Dr. Michael Brooks

The court was correct in allowing the videotape testimony of defendant’s medical expert because plaintiffs had ample notice of the deposition testimony and plenty of time to depose Dr. Brooks. [I]t is well established that admission of expert-opinion evidence is a matter for the discretion of the trial court and will not be reversed, overruled or disturbed unless there was a clear abuse of discretion.” Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969).

Dr.

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Bluebook (online)
14 Pa. D. & C.5th 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bashir-v-ajaye-pactcomplphilad-2010.