Kelly v. Montgomery

22 Pa. D. & C.4th 1, 1994 Pa. Dist. & Cnty. Dec. LEXIS 91
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedDecember 21, 1994
Docketno. 85-10411
StatusPublished
Cited by2 cases

This text of 22 Pa. D. & C.4th 1 (Kelly v. Montgomery) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Montgomery, 22 Pa. D. & C.4th 1, 1994 Pa. Dist. & Cnty. Dec. LEXIS 91 (Pa. Super. Ct. 1994).

Opinion

SALUS, J.,

This appeal is made in response to the court’s order of August 22, 1994, granting in part and denying in part plaintiffs’ motion for post-trial relief. Plaintiffs were granted a new trial against defendant, Bryn Mawr Hospital, only on the issues of liability and damages suffered by the minor, Lauren Tiburzio. The motion was denied in all other respects. Plaintiffs raise no fewer than 35 points of appeal in their concise statement of matters complained of, arguing precisely the same 35 points contained in [3]*3their motion for post-trial relief. Plaintiffs’ central arguments are addressed below.

PROCEDURAL AND FACTUAL HISTORY

This case is a medical malpractice action brought by plaintiffs Marcia Tiburzio Kelly and Francis Tiburzio, individually and on behalf of their minor daughter Lauren, against defendants Bryn Mawr Hospital, Anesthesia Associates of Bryn Mawr, and Bruce Montgomery, M.D. The action arises from the birth of Lauren Tiburzio on July 21,1983 at Bryn Mawr Hospital. Complications arose in the birthing process, and the attending obstetrician, Dr. Montgomery, decided to perform a Caesarean section. Dr. Montgomery requested an anesthesiologist for the procedure, but the first-call anesthesiologist had been called into surgery. Confusion and miscommunication ensued, and the second-call anesthesiologist was not contacted for approximately 30 minutes. Dr. Montgomery, after waiting several minutes, decided to proceed with the Caesarean section under local anesthesia, and Lauren Tiburzio was bom a short time thereafter.

Plaintiffs pursued two separate claims at trial before the court. Marcia Tiburzio-Kelly’s claim was based upon her undergoing a Caesarean section under local anesthesia. The second claim, on behalf of Lauren Tiburzio, alleged that Lauren had an asphyxic insult at birth that was worsened by the delay in performing the Caesarean section, attributable to the delay in the arrival of the anesthesiologist and failure to properly monitor Lauren’s heart rate during labor and delivery.

At the conclusion of the 12 day trial, a jury determined that Bryn Mawr Hospital was negligent with regard to its treatment of both Lauren Tiburzio and Marcia Tiburzio-Kelly. The jury awarded Marcia Tiburzio[4]*4Kelly $25,000 on her claim against the hospital, but was unable to reach a determination on the issue of causation with respect to Lauren Tiburzio. The jury found no negligence on the part of either Dr. Montgomery or Anesthesia Associates. The court recorded the appropriate verdict, and plaintiffs filed a motion for post-trial relief, seeking “a new trial on all issues as to all parties.” Plaintiff’s brief at 5. The court granted the motion only with respect to the issue of causation regarding Lauren Tiburzio’s claim against Bryn Mawr Hospital. This appeal followed.

DISCUSSION

Plaintiffs raise 35 points of appeal in their concise statement of matters complained of, most dealing with the court’s rulings on evidentiary matters. In considering the burden such an appeal places upon the limited resources of the judicial system, the court recalls the words of the Honorable Ruggero J. Aldisert, then of the United States Court of Appeals for the Third Circuit.

“When I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebutable presumption, but is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982). (citations omitted)

Although constraints of time and resource preclude an exhaustive treatment of each issue, plaintiffs’ central arguments are addressed below.

The decision to deny a motion for a new trial.is within the sound discretion of the trial court. Graham v. Sky Haven Coal Inc., 386 Pa. Super. 598, 604, 563 A.2d 891, 894 (1989). A trial court is required to grant [5]*5a new trial only where the court is convinced that the verdict is against the clear weight of the evidence or that the judicial process has effected a serious injustice. Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124-25 (1969). The standard of review is whether the trial court palpably abused its discretion or committed an error of law which controlled the outcome of the case. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 256, 523 A.2d 723, 725 (1987).

Many of plaintiffs’ points of appeal concern the preclusion of evidence at trial. Generally, matters related to the admission of testimony are entrusted to the sound discretion of the trial court. Pascale v. Hechinger Co. of Pa., 426 Pa. Super. 426, 435, 627 A.2d 750, 754 (1993). The erroneous exclusion of evidence is grounds for a new trial only where the error is both material and prejudicial. Eldridge v. Melcher, 226 Pa. Super. 381, 387-88, 313 A.2d 750, 754 (1973).

Plaintiffs first contend, in points 1 and 2 of their concise statement, that the court improperly restricted the testimony of plaintiffs’ expert witness and thereby wrongfully limited the scope of plaintiffs’ case against defendant Anesthesia Associates of Bryn Mawr Inc. to vicarious liability for the acts of two individual anesthesiologists. Plaintiffs’ contention stems from the court’s granting of defendants’ motion in limine to preclude evidence of primary liability on the part of Anesthesia Associates. The court’s ruling was based on the fact that plaintiffs’ proposed expert testimony did not include any primary theory of liability against Anesthesia Associates: “The opinions offered here and statements made in my reports of February 7 and April 2, 1990 regarding such practices and policies for anesthesia coverage at Bryn Mawr... constitute departures from the accepted standards of anesthetic medical care [6]*6by the hospital, first call anesthesiologists and nursing staff.” (June 1, 1990 Report of Dr. Richard Raker.)

While Dr. Raker’s written report clearly implicated the first call anesthesiologist, and thus, vicariously, Anesthesia Associates, the court determined that allowing Dr. Raker to attack Anesthesia Associates directly at trial would go beyond the fair scope of his written reports, as prohibited by Rule 4003.5, Pa.R.C.P., and would unfairly prejudice defendants. Pa.R.C.P. 4003.5(i). Because plaintiffs offered no expert reports indicating negligence on the part of Anesthesia Associates, other than vicariously through the actions of the individual anesthesiologists, the court properly ruled to preclude such testimony at trial. Furthermore, the court construed its ruling liberally, in favor of the plaintiffs, and permitted Dr. Raker to criticize the anesthesiology service provided at Bryn Mawr. (7/13/93 N.T. at 409-426.) Plaintiffs’ contention that the court improperly limited the scope of plaintiffs’ case is thus without merit.

In point 3, plaintiffs contend that the court erred in limiting the scope of the expert testimony of Dr.

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Related

Tiburzio-Kelly v. Montgomery
681 A.2d 757 (Superior Court of Pennsylvania, 1996)

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Bluebook (online)
22 Pa. D. & C.4th 1, 1994 Pa. Dist. & Cnty. Dec. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-montgomery-pactcomplmontgo-1994.