Blase v. Allied Signal Inc.

36 Pa. D. & C.4th 491, 1996 Pa. Dist. & Cnty. Dec. LEXIS 59
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedSeptember 30, 1996
Docketno. 238 S 1990
StatusPublished

This text of 36 Pa. D. & C.4th 491 (Blase v. Allied Signal Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blase v. Allied Signal Inc., 36 Pa. D. & C.4th 491, 1996 Pa. Dist. & Cnty. Dec. LEXIS 59 (Pa. Super. Ct. 1996).

Opinion

CLARK, J.

This court has been called upon to review defendants’ motion for summary judgment and plaintiff’s motion for reconsideration of the court’s order dated September 17, 1996. After careful consideration of the arguments presented, the motion for reconsideration is denied. As a consequence thereof, the motion for summary judgment is granted.

The above-captioned action was filed by Mildred M. Blase as a result of the death of her husband, Harold C. Blase. At all times relevant hereto, Mr. Blase was employed as an auto mechanic at Bell of Pennsylvania. During his period of employment, he was required to work with products manufactured by defendants which allegedly contained asbestos. Plaintiff contends that this exposure caused Mr. Blase to develop lung cancer and ultimately expire.

At trial, plaintiff intended to introduce the proposed testimony of Jerrold L. Abraham M.D., to establish a causal connection between Mr. Blase’s exposure to asbestos and his development of lung cancer. In response thereto, defendants filed a motion to preclude such proposed testimony on the basis that Dr. Abraham failed to conclude in his expert report that a causal connection existed. On September 6, 1996, the court heard oral arguments on the matter. A final order was entered on September 17, 1996 in which defendants’ motion was granted, thereby precluding Dr. Abraham from rendering expert testimony regarding causation at trial. In response to said order, plaintiff filed a motion for reconsideration, while defendants filed a motion for summary judgment. On September 19, 1996, the court entertained oral arguments on the motions.

In promoting her position, plaintiff contended that Dr. Abraham’s proposed testimony should not be pre[494]*494eluded from being introduced at trial since it falls within the fair scope of his expert report. Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 563 A.2d 155 (1989). In determining whether an expert’s trial testimony falls within the fair scope of his report, the court is to determine: “whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response or which would mislead the adversary as to the nature of the appropriate response.

“‘Fair scope’ contemplates a reasonable explanation and even an enlargement of the expert’s written words.
“An expert’s report is adequate to allow examination on a particular issue at trial when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” (citations omitted) Id. at 459, 563 A.2d at 157.

The court considered plaintiff’s argument and reaffirmed its earlier ruling that Dr. Abraham cannot offer an expert opinion regarding causation at trial. An examination of Dr. Abraham’s report, in its entirety, indicates that he failed to discuss causation in any terminology whatsoever. Therefore, the discrepancy between his report and proposed testimony at trial prevents defendants from preparing a meaningful response. A finding that asbestos exposure is linked to an increased risk of lung cancer is not sufficient to place the defendants on notice of a theory regarding causation. Throughout these proceedings, plaintiff has consistently referred to the “proposed” testimony of Dr. Abraham and has requested that the court reserve its ruling until it hears the testimony presented at trial. However, if [495]*495plaintiff is not certain as to the exact nature of the testimony, then defendants cannot be expected to have knowledge of its contents and are thereby precluded from preparing an adequate response. Finally, even if Dr. Abraham were permitted to reasonably explain or enlarge his written words, he could not offer causation testimony and still remain within the four comers of his report.

It is important to note that defendants presented the court with a copy of an expert report issued by Dr. Abraham in a similar case. In this report, Dr. Abraham indicated that he reviewed the pathology materials and medical records of the subject individual which were provided by plaintiff’s counsel. Based on his analysis, He stated that he could conclude to a “reasonable degree of medical certainty” that the plaintiff was properly diagnosed with malignant mesothelioma and “that there was ample evidence of asbestos exposure by history, as well as radiologic markers of asbestos exposure.” Furthermore, he indicated that “[tjhese findings are sufficient to conclude that [plaintiff’s] occupational asbestos exposure was the cause of his malignant mesothelioma and death.” (emphasis added) Examining the language used by Dr. Abraham in this particular report, it is clear that he was well aware of the information which needed to be contained in an expert report to aid plaintiff in presenting her case. For whatever reasons, he failed to provide the necessary facts and conclusions regarding the condition of Mr. Blase required to sustain plaintiff’s burden of proof.

Based on the foregoing, Dr. Abraham shall not be permitted to expand the theories contained in his report and offer testimony establishing a causative link be[496]*496tween Mr. Blase’s exposure to asbestos and his eventual development of lung cancer.

Since Dr. Abraham’s expert testimony has been precluded at trial, the court went on to consider whether plaintiff could produce a medical expert to meet its burden and demonstrate that Mr. Blase’s asbestos exposure was a substantial contributing factor in causing his lung cancer. Rafter v. Raymark Industries Inc., 429 Pa. Super. 360, 632 A.2d 897 (1993). In an attempt to still prove her case, plaintiff offered the testimony of Mr. Blase’s treating physician, John C. Wallendjack M.D. On August 16,1989, in preparation of a workers’ compensation hearing, the deposition testimony of Dr. Wallendjack was taken. In response to a hypothetical question, Dr. Wallendjack testified to a reasonable degree of medical certainty that Mr. Blase’s asbestos exposure was “a substantial contributing cause” to the development of his “lung malignancy.” (Deposition transcript of John C. Wallendjack M.D., p. 33, 11s. 7-10.) While an expert’s opinion may be based on a hypothetical, the facts contained in that hypothetical must provide a sufficient basis for the conclusions ultimately given by the expert. Hussey v. May Department Stores Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976). If an expert’s opinion is based on mere conjecture, it is considered incompetent and may not be admitted into evidence. An opinion may be found conjectural because it does not have an adequate basis in fact. Id. at 435-36, 357 A.2d at 638.

After an extensive review of the facts contained in the hypothetical, the court has concluded that these facts do not provide sufficient grounds to support Dr. Wallendjack’s conclusions regarding causation. The [497]*497question is quite detailed in explaining the nature of Mr. Blase’s work and the ways in which he was exposed to asbestos.

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36 Pa. D. & C.4th 491, 1996 Pa. Dist. & Cnty. Dec. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blase-v-allied-signal-inc-pactcompldauphi-1996.