Freed v. Priore

372 A.2d 895, 247 Pa. Super. 418, 1977 Pa. Super. LEXIS 1662
CourtSuperior Court of Pennsylvania
DecidedApril 19, 1977
Docket849
StatusPublished
Cited by16 cases

This text of 372 A.2d 895 (Freed v. Priore) 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
Freed v. Priore, 372 A.2d 895, 247 Pa. Super. 418, 1977 Pa. Super. LEXIS 1662 (Pa. Ct. App. 1977).

Opinions

HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his motion for a new trial which he based on after-discovered evidence and improper expert testimony. We affirm the order of the lower court.

Appellant, David Freed, a minor, through his mother, Agnes Freed, brought this action in trespass to recover damages for negligently inflicted injuries. Appellant suffered injuries during his delivery, at birth, by the appelleeobstetrician, Robert Priore, on May 25, 1971, in Pittsburgh, Allegheny County.

Appellant’s theory for recovery, presented through his expert, Dr. Paxson, is based upon Dr. Priore’s failure to realize that the baby was in a breech position1 until one [422]*422hour prior to his delivery. .Appellant asserts that Dr. Priore’s administration of the drug spartoein2 to Mrs. Freed and use of a spinal anesthesia created an emergency situation in the delivery room. Appellant also contends that Dr. Priore erred by performing a total breech extraction rather than a partial breech extraction3 and in improperly applying forceps to the child.

Appellee and his expert witness, Dr. Hayashi, presented a completely different statement of facts, and a. different medical analysis. Appellee stated that it is very common to be unable to ascertain whether a child is in a vertex or breech presentation until after the amniotic sac bursts.4 In the instant case the doctor made a breech diagnosis after the sac burst. Appellee stated that spartoein and spinal anesthesia are used without complication in partial breech extractions. Appellee and his expert testified that the Freed delivery was a partial breech extraction not a total extraction and that the use of forceps was required in order to deliver the child immediately. Appellee’s expert also testified that the Freed baby was an intrauterine growth retarded (hereinafter IUGR) baby,5 which complicated the delivery further.

[423]*423The jury resolved the conflict in testimony in favor of appellee, Dr. Priore. On May 28,1975, appellant filed timely motions for a new trial. On October 14,1975, appellant filed supplemental reasons for a new trial and attached a copy of an article published in a medical journal in support of his motion. The court, en banc, denied the motion for a new trial. This appeal followed.

Appellant first contends that he was deprived of a fair trial because appellee’s expert testified falsely. During the trial, appellant did not realize that Dr. Hayashi’s testimony was inaccurate. After the trial, appellant found the article upon which Dr. Hayashi based his questioned testimony. As a result of this after-discovered evidence, appellant moved for a new trial. The alleged false testimony of Dr. Hayashi occurred on redirect examination:

“Q. Now, Mr. Evans [appellant’s counsel] put some figures on the board there for the length and head size; right? “A. Yes.
“Q. Do those figures include the figures that are on the paper? Do they include the figure that was critical in determining that this was an intrauterine growth retarded baby?
“A. No. The most critical measurement is left out of there. The most important measurement is the weight, 2500 grams.
Now, to us, in the last couple years, we are more and more concerned with the baby who is at term and who is small in many respects. When the baby is less than 2500 grams, beyond 37 weeks, by Dr. Yerushalmy’s classification, there is almost a 95 per cent perinatal loss.6 If it’s above 2500 grams, its got about a seven per cent perinatal loss. In other words, this baby is in a group where you have a high death rate. It is not a healthy, normal situation, when you have an intrauterine growth retarda[424]*424tion at 37 weeks plus. In this case, it was 40 weeks, and the baby is 2500 grams or less. It is in a dangerous position, a high — in fact, the New York Mortality Report was 59 per cent of the babies in this group died that were less than 2500 grams. This is not a health situation. I’m pointing out, intrauterine growth retardation, as we are studying more and more of this problem, is a serious problem for the obstetrician.”

Appellee apparently concedes that the 95% and 59% mortality figures used by Dr. Hayashi are not accurate. The article to which Dr. Hayashi referred was written by Dr. J. Yerushalmy on the subject of intrauterine growth retarded babies and was published in March, 1970, by Clinical Obstetrics and Gynecology, a medical journal. Appellant asserts that at trial he had no knowledge nor means of knowing of the statistics presented by Dr. Hayashi. He alleges that four months after the trial he discovered the article upon which this false testimony was based.

Initially, we note that a motion for a new trial based on after-discovered evidence is committed to the sound discretion of the court below and we will not reverse unless there is a clear abuse of discretion. Higbee v. Koziol, 383 Pa. 116, 117 A.2d 707 (1955); Meholiff v. River Transit Co., 342 Pa. 394, 20 A.2d 762 (1941); Suravitz v. Prudential Ins. Co., 261 Pa. 390, 104 A. 754 (1918).

To secure a new trial on the ground of discovery that false testimony was given at trial, the complaining party must be able to meet the general test applied to applications for a new trial on the ground of after-discovered evidence. Limper v. Phila. Electric Co., 297 Pa. 204, 146 A. 574 (1929); Suravitz v. Prudential Ins. Co., supra. “The law is clear that in order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would likely compel a different result.” Townsend Will, 436 Pa. 185, 190, 258 A.2d 518, 520 (1969); Limper v. [425]*425Phila. Electric Co., supra; Hydro-Flex, Inc. v. Alter B. Co. Inc., 223 Pa.Super. 228, 296 A.2d 874 (1972).

In appellee’s pre-trial report, filed February 28, 1975, Dr. Hayashi indicated several problems attendant to the delivery of an IUGR baby in a breech position. Thus, appellant was aware two and one-half months prior to trial that intrauterine growth retardation would be an issue raised by appellee’s expert. The article by Dr. Yerushalmy, which analyzed the New York Mortality Reports, had been published five years prior to the time of the instant trial. It is obvious that if appellant had used due diligence he could have discovered the article in question prior to, or at the time of trial.

Moreover, appellant’s after-discovered evidence does not meet the other standards for granting a new trial. It is clear that the mortality rates from the article in question would only be used to impeach appellee’s expert and cast doubt upon his credibility because the testimony does not concern any material fact relating to appellee’s conduct during delivery.

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Freed v. Priore
372 A.2d 895 (Superior Court of Pennsylvania, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
372 A.2d 895, 247 Pa. Super. 418, 1977 Pa. Super. LEXIS 1662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freed-v-priore-pasuperct-1977.