Folger ex rel. Folger v. Dugan

876 A.2d 1049, 2005 Pa. Super. 215, 2005 Pa. Super. LEXIS 1471
CourtSuperior Court of Pennsylvania
DecidedJune 9, 2005
StatusPublished
Cited by29 cases

This text of 876 A.2d 1049 (Folger ex rel. Folger v. Dugan) 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
Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 2005 Pa. Super. 215, 2005 Pa. Super. LEXIS 1471 (Pa. Ct. App. 2005).

Opinions

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellants, Joseph Robert Folger, Robert J. Folger and Mary T. Folger, appeal from the trial court’s November 15, 2002 order denying their post-trial motions.1 We affirm.

¶ 2 The trial court summarized the facts and procedural history as follows:

This is a medical malpractice action brought by Plaintiff-minor Joseph Fol-ger and his parents Robert and Mary Folger (hereinafter “Plaintiffs”) against Theresa Dugan, M.D., Eugene Andruc-zyk, D.O., Marilyn Wettlaufer, M.D., Sondra Dantzic, M.D. and Frankford Hospital (hereinafter “Defendants”). On July 13, 1994, Plaintiff-minor was born at Defendant Frankford Hospital. Dr. Dugan was the obgyn attending at the birth and performed post-natal examinations. The testimony revealed that the infant had no significant problems at birth, had normal APGAR scores, had normal blood gasses and feedings were normal. Mother and baby were thereafter discharged on July 14,1994.
Six days later, Plaintiff-minor developed a fever and was admitted to St. Christopher’s Hospital for Children. While there, he was diagnosed with herpes encephalitis. The diagnosis was made in part on the basis of the results of a polymerase chain reaction test (“PCR test”) performed on Plaintiff-minor’s spinal fluid at the University of Alabama. The diagnosis was recorded into his medical chart and taken into consideration by his doctors, who determined the cause of his illness and recommended treatment accordingly.
Plaintiff sought to prove that the cause of Joseph’s infirmities was negligence during the delivery which resulted in neurological defects. Plaintiff produced testimony that Plaintiff-minor was born as a face presentation, as opposed to a normal vertex presentation, causing traumatic birth injuries. Defendants countered that Plaintiff-minor was born as a normal vertex presentation and that his present condition is not a result of any negligence on the part of the Defendants. It is uncontested that Plaintiff-minor now suffers severe and permanent neurological injuries.
Trial commenced on June 7, 2002 and the jury returned a verdict in favor of [Defendants] on June 21,2002.

Trial Court Opinion, 4/8/03, at 1-2.

¶3 Appellants filed post-trial motions, which the trial court denied. This appeal followed.

[1053]*1053¶ 4 Appellants raise the following issues for our review:

(1) Whether, when the evidence clearly compelled a finding that Dr. Dugan was negligent, and the defense verdict can only have resulted from the manifestly unreasonable determination that Joseph Folger’s mother knowingly imperiled her baby’s life by lying to the doctors who were trying to diagnose and save him, and/or from improper consideration of evidence as to the etiology of Joseph’s injuries which was patently inadmissible, that verdict shocks the conscience, making a new trial necessary.
(2) Whether it was reversible error to admit the “evidence” upon which defendants’ entire exculpatory theory rested, the alleged result of alleged polymerase chain reaction (“PCR”) testing, which was facially incompetent, unauthenticated, could not be challenged by cross-examination, and constituted inadmissible hearsay.
(3) Whether the admission of this evidence also was reversible error, as it should have been precluded (or at least subjected to prior scrutiny by the trial court, in its role as gatekeeper) under Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and its Pennsylvania progeny.
(4) Whether it was reversible error to permit the defense to improperly use and introduce, as expert testimony, the discovery depositions of plaintiffs treating physicians, and the inadmissible opinions regarding the alleged PCR test result contained therein.

Appellants’ Substituted Brief on Reargument at 2.2

¶ 5 Appellants first argue that a new trial is necessary because the jury returned a verdict that is contrary to the weight of the evidence.

The general rule for a grant of a new trial on the basis that it is against the weight of the evidence allows the granting of a new trial only when the jury’s verdict is contrary to the evidence as to shock one’s sense of justice and a new trial is necessary to rectify this situation. Unlike appellate review of a refusal to enter a judgment N.O.V., where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict winner, the appellate court, in reviewing the refusal to grant a new trial, ordinarily considers all of the evidence. The court is not required to consider the evidence in the light most favorable to the verdict winner when passing on the question of whether a verdict is against the weight of the evidence. Rather, the court is to view all of the evidence.
Moreover, a new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the fact-finder could have decided in favor of either party.

Lanning v. West, 803 A.2d 753, 765 -766 (Pa.Super.2002).

¶ 6 Appellants’ argument is based largely on the testimony of Appellant Mary Folger. Mrs. Folger testified that, during the delivery of Joseph at Frankford Hospital, Appellee Theresa Dugan, M.D., manually rotated Joseph from a face presentation, which is abnormal, to a vertex presentation, which is normal. N.T., 6/13/02 p.m., at 45. Mrs. Folger claims that Dr. Dugan explained to her that she [1054]*1054manually rotated Joseph during delivery. Id. Dr. Dugan denies having manually rotated Joseph from a face to a vertex presentation or having told Mrs. Folger that she had done so. N.T., 6/17/02, at 118-119. Dr. Dugan testified that she is not familiar with any such procedure and does not believe it is possible. Id.

¶ 7 The record also reflects that when Mrs. Folger brought Joseph to St. Christopher’s hospital on account of his fever, she told the treating physicians that the baby had been manually rotated during delivery. N.T., 6/13/02, p.m., at 55-56. Appellants claim that Mrs. Folger, as a nurse herself, was aware that the information she provided to the treating physicians was critical to proper diagnosis and treatment of Joseph’s condition. Appellants argue that the jury’s failure to credit Mrs. Folger’s testimony shocks the conscience, since no mother would he in circumstances where her child’s health depends upon accurate information.

¶ 8 Appellees point out that the hospital’s records indicate that Joseph’s birth was a normal vertex presentation. Thus, these records support Dr. Dugan’s testimony. Appellees argue that Mrs. Folger’s testimony is based on a simple misunderstanding of what Mrs. Folger was told regarding Joseph’s delivery.

¶ 9 The trial court found that the record contains conflicting evidence as to whether Joseph’s injuries were the result of negligence. Trial Court Opinion, 4/8/03, at 4. Our own review of the record confirms the trial court’s finding; as there is evidence in the record that conflicts with Mrs. Folger’s version of events.

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Cite This Page — Counsel Stack

Bluebook (online)
876 A.2d 1049, 2005 Pa. Super. 215, 2005 Pa. Super. LEXIS 1471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folger-ex-rel-folger-v-dugan-pasuperct-2005.