Cominsky v. Donovan

846 A.2d 1256, 2004 Pa. Super. 98, 2004 Pa. Super. LEXIS 340
CourtSuperior Court of Pennsylvania
DecidedApril 6, 2004
StatusPublished
Cited by14 cases

This text of 846 A.2d 1256 (Cominsky v. Donovan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cominsky v. Donovan, 846 A.2d 1256, 2004 Pa. Super. 98, 2004 Pa. Super. LEXIS 340 (Pa. Ct. App. 2004).

Opinions

BECK, J.

¶ 1 We decide whether the trial court erred in admitting lay witness testimony about the pain and suffering experienced by someone in a persistent vegetative state. We reverse and remand for a new trial on damages only.

¶ 2 Plaintiff-appellee Seymour Comin-sky1 filed this action on behalf of himself and the Estate of Pearl Cominsky, his wife, against defendant-appellant Holy Redeemer Health System, alleging that the appellant’s negligence during post-operative care caused Pearl’s brain injury and ultimate death. Appellee presented evidence that, as a result of the negligence of appellant’s staff, Pearl Cominsky experienced pain, anguish and fear while she lay in a persistent vegetative state for nineteen days until she died. After a jury trial, the jury awarded damages for pain and suffering in the amount of $950,000 to the Estate of Pearl Cominsky, and $1,500,000 to Seymour Cominsky for loss of consortium. Appellant’s post-trial motions were denied and judgment was entered on the jury’s verdict.

¶ 3 In this appeal, appellant does not challenge the jury’s finding of liability. Instead, appellant argues that: 1) the jury’s award for Pearl Cominsky’s pain and suffering was based on inadmissible evidence; 2) the award for Seymour Co-minsky’s derivative loss of consortium claim should have been vacated because the primary survival claim for pain and suffering was not established; and 3) the trial court should have granted remittitur because the jury’s award of damages was excessive.

¶ 4 We consider appellant’s first issue, regarding the admissibility of lay witness opinion testimony. We may reverse the trial court’s evidentiary rulings only for an abuse of discretion or an error of law. Cruz v. Northeastern Hospital, 801 A.2d 602 (Pa.Super.2002). In this case, the trial court permitted Cynthia Woll and Robert Cominsky, the adult children of Pearl and Seymour Cominsky, to testify that their mother felt pain during the nineteen days she languished in a persistent vegetative state before her death. Appellant argues that this was improper opinion testimony by these lay witnesses.

¶ 5 Cynthia Woll, Pearl’s daughter, testified as follows:

Q: Was your mom in any pain?
A: She looked to me like she was...
Mr. RYAN [appellant’s counsel]: Objection.
THE COURT: Overruled. You may answer.
THE WITNESS: Thank you. She looked to me like she was in anguish; that, certainly, there had to be some sort of pain.
MR. [RYAN]: Move to strike.
THE COURT: Overruled.

Later, Woll’s brother Robert Cominsky testified about his mother’s condition:

Q: Did she appear to be in pain?
[1258]*1258MR. RYAN: Objection; leading the witness.
THE COURT: Overruled.
THE WITNESS: She appeared to be in a very anguished, painful or fearful state. When I would look into her eyes, I just saw — I mean, I just saw a pitiful, fearful, painful person.

¶ 6 We hold that this lay opinion testimony that Pearl Cominsky suffered pain while she was in a persistent vegetative state was incompetent and should not have been admitted.2 Neither Woll nor Comin-sky was a qualified medical expert. Indeed, the only medical expert to testify on the issue of damages was appellant’s expert witness, Dr. David S. Prince. Dr. Prince testified that his review of Pearl’s medical records led him to the conclusion that she did not experience pain while in that unconscious state. He opined, “There is no awareness at that level... Someone who has no consciousness, who is in a vegetative state, cannot determine pain.” He further testified, in response to notations in the hospital records that Pearl would occasionally open her eyes while in this condition:

That means that the eyes open. That doesn’t mean that the brain was interpreting data. That’s a typical reflex for a patient with severe brain injury. They open the eyes with stimulation, when you give them a painful stimuli [sic] with your knuckles, pinch their finger, you yell at them or you make some kind of stimuli. Instead of responding in consciousness, like you would or anybody else awake, the patient does a reflex. They open their eyes, they move like this.... That tells you that the [1259]*1259brain is not connected correctly. Something is seriously wrong. And the pain is really in the eyes of the beholder.

There’s no consciousness in that state. In addition, Nurse Lucy LeszczynsM testified that Pearl had no response to deep sternal palpation, a pain stimulus, and that she did not see Pearl “suffer.”

¶ 7 Pennsylvania Rule of Evidence 701 limits a lay witness’s opinion testimony to “those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witnesses] testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge[.]” Our cases further hold that lay witnesses may testify to someone’s readily observable physical condition or appearance that does not require medical training. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998).

¶ 8 A “lay witness may testify as to certain matters involving health, the apparent physical condition of a person, and as to obvious symptoms, but his testimony must be confined to facts within his knowledge, and may not be extended to matters involving the existence or nonexistence of a disease, which is only discoverable through the training and experience of a medical expert.” Baum v. Metropolitan Life Ins. Co., 144 Pa.Super. 37, 19 A.2d 486, 487 (1941). Thus, a layperson may not testify to the presence of an underlying disease such as a heart condition or osteomyelitis. Id. See also In re Commitment of Barbour, 733 A.2d 1286 (Pa.Super.1999) (a lay witness may testify about the apparent physical condition of a person, but may not testify regarding a medical diagnosis, such as the existence of bipolar disorder). This is because such conditions are “not readily observable by the naked eye or even by a physical examination unless symptoms are ascertained and appropriate tests made.” Id. at 488. See also Travellers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d 809 (1948) (lay witnesses are barred from testifying to the existence or nonexistence of a disease or disorder, the discovery of which requires the training and experience of a medical expert); Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (same).

¶9 For these reasons, our Supreme Court held that a lay witness could not testify regarding the “split and opened” condition of the complainant’s hymen in the absence of qualified expert testimony to explain the significance of these personal observations.

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Bluebook (online)
846 A.2d 1256, 2004 Pa. Super. 98, 2004 Pa. Super. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cominsky-v-donovan-pasuperct-2004.