George v. Ellis

911 A.2d 121, 2006 Pa. Super. 306, 2006 Pa. Super. LEXIS 3766
CourtSuperior Court of Pennsylvania
DecidedOctober 31, 2006
StatusPublished
Cited by21 cases

This text of 911 A.2d 121 (George v. Ellis) 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
George v. Ellis, 911 A.2d 121, 2006 Pa. Super. 306, 2006 Pa. Super. LEXIS 3766 (Pa. Ct. App. 2006).

Opinions

OPINION BY

POPOVICH, J.:

¶ 1 Appellant Debra L. George appeals from an order entered on May 31, 2005, in the Court of Common Pleas, Blair County, granting Appellees’ motion for summary judgment. Upon careful review, we affirm.

¶2 The relevant facts and procedural history of this case are as follows. In July of 2000, Appellant filed a complaint naming Appellee Thomas J. Ellis, D.O., University Orthopedics Center, and Bon Secours-Holy Family Hospital as defendants.1 Appellant claimed that the three surgeries performed by Appellees for the treatment of a work-related knee injury were unnecessary and that the surgeries caused physical damage to her knee. The case was scheduled for trial on May 6, 2002. The trial court struck, cancelled, and prohibited the depositions of three of Appellant’s witnesses and quashed a subpoena with regard to one of these witnesses. At trial, following voir dire on the qualifications of Appellant’s proposed expert witness, Dr. Bull, the trial court granted Appellees’ motion and found the witness was not qualified to testify as an expert. Appellant had no other expert witness testimony to pres[124]*124ent, prompting the court to enter a compulsory non-suit. Appellant filed post-trial motions that were denied by an order on July 31, 2002. Judgment was entered on August 15, 2002, and Appellant filed a timely appeal to this Court. In George v. Ellis, 820 A.2d 815 (Pa.Super.2003), this Court reversed the order and remanded the case stating that it was error to not permit the jury to hear the testimony of the expert. Id,., 820 A.2d at 819. This Court also concluded that the expert demonstrated that he had sufficient skill, knowledge, and experience to aid the jury in their determination. Id., 820 A.2d at 819. Finally, we stated that the jury would be free to reject this testimony, but it should have been presented to the jury for them to decide. Id., 820 A.2d at 819. Our Supreme Court denied Appellees’ petition for allowance of appeal on October 15, 2003.

¶ 3 On February 18, 2005, Appellees filed pre-trial motions, including a Motion for Summary Judgment and a Motion in Limine arguing that the expert was not qualified to testify under the Medical Care Availability and Reduction of Error (MCARE) Act,2 and, therefore, this case should be dismissed. The trial court heard argument on these pre-trial motions on April 1, 2005. On May 31, 2005, the trial court granted Appellees’ motion for summary judgment.3 On August 16, 2005, the trial court filed a supplementary letter citing Bethea v. Philadelphia AFL-CIO Hospital Association, 871 A.2d 223 (Pa.Super.2005), in support of its May 31, 2005 opinion. Appellant filed this timely appeal. The trial court ordered Appellant to file a 1925(b) statement; she complied. In response, the trial court authored a letter stating that it would rely on its May 31, 2005 opinion and nothing further would be forthcoming.

¶ 4 Appellant presents three issues for our review:

I. WHETHER THE OPINION AND RULING OF THE SUPERIOR COURT IN GEORGE V ELLIS, DO., ET.AL, 820 A.2d 815 (Pa.Super.2003), THAT DR. BULL WAS COMPETENT TO TESTIFY AS AN EXPERT WITNESS IN THIS PARTICULAR CASE, DESPITE [APPEL-LEES’] ARGUMENT ON APPEAL THAT DR. BULL WAS NOT SKILLED IN THE PROCEDURES AT ISSUE AND THAT HE WAS NOT QUALIFIED UNDER THE M-CARE ACT, IS THE LAW OF THE CASE.
II. WHETHER THE M-CARE ACT, 40 PS § 1303. ET SEQ., SHOULD NOT BE DEEMED RETROACTIVE AND EVEN IF IT IS RETROACTIVE WHETHER AS A MATTER OF “FUNDAMENTAL FAIRNESS” SHOULD [APPELLANT] HAVE BEEN AFFORDED THE OPPORTUNITY TO SECURE A SUBSTITUTE EXPERT.
III. WHETHER DR. BULL IS OTHERWISE QUALIFIED AS AN EXPERT UNDER THE M-CARE ACT.

Appellant’s brief, at 4.

¶ 5 Our standard of review is as follows:

The standard of review of a trial court’s entry of summary judgment is [125]*125well-established. We shall reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion. Judicial discretion requires action in conformity with law based on the facts and circumstances before the trial court after hearing and consideration. Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden. On appeal from a grant of summary judgment, we must examine the record in a light most favorable to the non-moving party.

Fort Cherry Sch. Dist. v. Gedman, 894 A.2d 135, 139 (Pa.Super.2006) (citations and quotation marks omitted).

¶ 6 Appellant’s first argument is that the opinion given by this Court in George v. Ellis, 820 A.2d 815 (Pa.Super.2003), is the controlling law of this case. Appellant contends that this Court determined Dr. Bull was qualified as an expert witness under the liberal common law standard that has recently been modified by the MCARE Act. Specifically, Appellant states that this Court determined Dr. Bull was qualified as an expert when the MCARE act was in effect, and, therefore, the decision of this Court is the law of the case. Appellant cites to the law of the case doctrine in support of his argument that the trial court should not have altered the decision of this Court with respect to the determination of Dr. Bull’s expert qualifications.

¶ 7 The law of the case doctrine is explained as follows:

Among the related but distinct rules which make up the law of the case doctrine are that: (1) upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by the appellate court in the matter; (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court; and (3) upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferrer trial court.

Commonwealth v. Viglione, 842 A.2d 454, 461-62 (Pa.Super.2004) (citation omitted).

¶ 8 The law of the case doctrine applies when a defendant is granted a new trial and precludes the defendant from re-litigating the admissibility of evidence when the same issue was already raised and previously decided adversely to the defendant. Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa.Super.2005) (citation omitted). However, departure from the law of the case doctrine is allowed in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed. Viglione, 842 A.2d at 464.

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George v. Ellis
911 A.2d 121 (Superior Court of Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
911 A.2d 121, 2006 Pa. Super. 306, 2006 Pa. Super. LEXIS 3766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-ellis-pasuperct-2006.