Drucker v. Philadelphia Dairy Products Co.

166 A. 796, 35 Del. 437, 5 W.W. Harr. 437, 1933 Del. LEXIS 26
CourtSuperior Court of Delaware
DecidedMay 22, 1933
DocketNo. 82
StatusPublished
Cited by8 cases

This text of 166 A. 796 (Drucker v. Philadelphia Dairy Products Co.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drucker v. Philadelphia Dairy Products Co., 166 A. 796, 35 Del. 437, 5 W.W. Harr. 437, 1933 Del. LEXIS 26 (Del. Ct. App. 1933).

Opinion

Reinhardt, J.,

delivering the opinion of the Court:

This is an action instituted by Michael Drucker against the Philadelphia Dairy Products Company, a corporation of the State of Pennsylvania, to recover damages for personal injuries which the plaintiff claims he sustained in a collision between his automobile and a truck of the defendant. The case was tried before a jury and the plaintiff recovered a verdict.

In the course of the trial the plaintiff testified that prior to the time of the collision he was in good health and that very soon thereafter he developed serious heart trouble caused, he claims, by shock received in the collision. During the trial he called as one of his witnesses a physician who testified that the plaintiff was then suffering from heart trouble and that this trouble could have been produced by shock received in the collision.

The defendant called as one of its witnesses at the [439]*439trial Dr. Harold L. Springer who testified that he had had thirty-one years’ experience as a practicing physician and surgeon, had considerable experience as a diagnostician and had occasion to see a good many heart cases; that as a surgeon he had to check the condition of the heart before operating on the patient. He further testified that he was not a specialist in heart diseases and not a heart man, and he expressly denied any familiarity with, or any knowledge of, certain standard medical treatises on heart disease which were called to his attention while under cross-examination by plaintiff’s attorney. He further testified that he had made two examinations of the plaintiff the first shortly after the accident and the second about ten months later and just before the trial of the cause; that he had found no heart trouble upon the first examination, but did find serious heart trouble upon the second examination» of the plaintiff. He further testified that in his opinion such heart trouble as he found in the plaintiff did not result from the collision in which the plaintiff claimed to have been injured.

The plaintiff now moves for a new trial upon the following grounds:

1. That the verdict of two hundred dollars was inadequate in amount;

2. That plaintiff’s attorney was not permitted by the Court to cross-examine Dr. Springer by the use of certain medical treatises in an attempt to impeach the testimony of the doctor to the effect that plaintiff’s heart condition never resulted from the collision;

3. That Doctor Springer, on cross-examination, established conclusively that he was not qualified as an expert to testify as to the plaintiff’s alleged heart condition, or to express an opinion as to the probable cause or probable contributing cause thereof; that the Court itself expressed an opinion to that effect and that, therefore, the testimony [440]*440of Dr. Springer on direct examination should, upon application of plaintiff’s attorney, have been stricken out.

. In consideration of the motion, the third reason in support thereof will first be discussed.

An examination of the record in this cause discloses the fact that the only statement made by the Court at the trial in regard to the qualifications of Dr. Springer as an expert was “He (the doctor) does not claim to be an expert.” This was at most an inaccurate statement by the Court of the doctor’s claim. What he did claim was that he was not a specialist in heart diseases and that he was not a heart man. It can hardly be seriously contended that this remark of the Court was more than an inaccurate statement of the claim made by the Doctor. It manifestly was not an expression of the Court’s opinion as to the qualifications of Dr. Springer as an expert witness. In his direct examination, Dr. Springer clearly qualified himself as an expert witness who was competent to express an opinion in the matter then under consideration. In his cross-examination the doctor expressly denied any knowledge of certain medical treatises on heart disease and stated that he was not a specialist in that disease.

The real question then is, did the doctor by such testimony given in cross-examination disqualify himself as an expert competent to express an opinion as to whether shock from a collision could or could not be the cause of heart trouble such as that from which the plaintiff was suffering. If he did thus disqualify himself his testimony should have been stricken from the record.

Expert medical witnesses derive the knowledge upon which they base their opinions from one or both of two sources:

(a) Their practical experience over a period of years in dealing with matters involving the subject under consideration ;

[441]*441(b) Their reading of, and familiarity with, standard treatises of acknowledged weight and authority upon the subject under consideration.

Latvson on Expert Evidence at page 246 expresses the same thought, as follows:

“An expert may be qualified by study without practice, or by ■practice without study.”

Dr. Springer, in his testimony, seems to have based his opinion solely on his practical experience of thirty-one years involving, inter alla, the consideration of a good many heart cases.

An examination of authorities shows rather clearly that a physician of practice and experience is an expert and that it is not necessary that a witness of this class should have made the particular disease involved in any inquiry a specialty in order to make his testimony admissible as an expert.

In 1 Greenleaf Ev. (16th Ed.), paragraph 430, the author says:

“On matters in which a special medical experience is necessary, the question may arise whether a general practitioner will suffice or whether a specialist in the particular subject is necessary. The Courts usually and properly repudiate the finical demand for the latter class of witnessess.”

In the case of D. & C. Steam Towboat Co. v. Starrs, 69 Pa. 36, 41, Sharswood, J., said:

“It is objected that they [the experts] were not first shown to be such. This is a preliminary question to be_ determined by the court in the first instance. If the court shall think they are prima facie qualified, it will then be for the jury to decide whether any, and, if any, what weight is to be given to their testimony. It is a matter very much within the discretion of the court below, and if it appears that the witnesses offered had any claim to the character of experts, the court will not reverse on the ground that their experience was not sufficiently special.”

In the case of Seckinger v. Philibert'& Johanning Mfg. Co., 129 Mo. 590, 31 S. W. 957, 562, the Court had under [442]*442consideration the question of whether a heavy blow on the chest could have produced consumption in the plaintiff.

The Court said:

“It is insisted that the court erred in permitting Dr. Yarnell, a witness for the plaintiff, to testify, over defendant’s objections, as an expert, to the effect that the blow could have caused the condition he found. plaintiff’s lung in at a time when he treated him after the injury, without the witness having shown that he was qualified as such, and after he had stated that he was not an expert on lung trouble. This witness had been a practicing physician for 25 years.

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Bluebook (online)
166 A. 796, 35 Del. 437, 5 W.W. Harr. 437, 1933 Del. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drucker-v-philadelphia-dairy-products-co-delsuperct-1933.