STALEY, Circuit Judge.
Two interrelated questions are raised by the plaintiff-appellant in this malpractice suit: (1) whether there was any vital inconsistency in the expert medical testimony he proffered in support of an essential element of his claim, and (2) assuming there was such inconsistency, was the district court justified in granting defendant’s motion for involuntary dismissal under Federal Rule of Civil Procedure 41(b), 28 U.S.C.
This is a diversity case in which all the action, except the trial, took place in Wichita, Kansas. At the time of the incidents involved, the defendant, Dr. Clayton L. Scuka, lived and practiced medicine in Wichita, but he has since removed to the Philadelphia area and presently resides in Havertown, Pennsylvania.
The case was tried, for the most part, on depositions; the only live witnesses besides the plaintiff and his wife were two physicians called to give expert testimony. Following the presentation of plaintiff's case, the court dismissed the action on defendant’s motion and later denied a motion to set aside the judgment of involuntary dismissal and for a new trial.
The plaintiff, Kenneth V. Dill, was employed as a service specialist or troubleshooter for a Wichita gas company. While waiting in his office during the midnight shift, he had fallen asleep on a chair with his feet on his desk. Upon awakening he experienced pain in his left leg, in the region of the calf. He consulted defendant who hospitalized him on March 9, 1954. The pain was diagnosed as resulting from a blood clot, and while under treatment at the hospital plaintiff suffered two embolisms in the chest, which disappeared after treatment. During the period of hospitalization the plaintiff was administered anticoagulants in order to control the blood clotting.
To further diagnose the cause of the blood clotting, defendant requested that the staff urologist, Dr. Miles, who had previously performed over 300 aortograms,
perform one on the plaintiff. Plaintiff consented to the procedure and discussed it at various times with both doctors. Dr. Miles examined the patient, checked his prothrombin time
and decided to proceed with the aortogram. Following administration of anesthesia, Dr. Miles attempted to inject dye into the aorta; however, he was not satisfied with the nature of the blood which appeared in the needle and discontinued the procedure. The patient had been apprised of the fact that Dr. Miles and not Dr. Scuka would perform the aortogram and that the latter would not be present.
In the week following the attempted aortogram, plaintiff suffered great pain and thrashed about in his bed. The nerve functions in his lower extremities deteriorated, and he lost control of his legs from the hips down. In addition,
he was unable to urinate and have normal bowel movements and lost the ability to copulate. His condition was described as “flaccid paralysis.” Plaintiff contends his present condition results from the attempted aortogram and that the defendant was negligent in ordering this procedure under the circumstances. He additionally contends the defendant was negligent in failing to perform a laminectomy to relieve the condition resulting from the aortogram.
This being a case in the federal courts solely by virtue of diversity of citizenship, the court applies state law and takes its law from the authoritative decisions of the forum, including conflict-of-law rules. Since all the operative facts took place in Kansas, Pennsylvania law refers to Kansas, the place of wrong, for the legal effect to be given them. Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908, certiorari denied 1948, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770, and Pennsylvania cases collected therein at footnote 3, page 910 of 166 F.2d. It is equally well settled that the application of Pennsylvania conflict-of-law rules determining whether a given question is to be characterized as substantive, with reference to the foreign law, or procedural, where the reference will be to the law of the forum, controls us here. Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 910. Thus, in regard to whether a right of action exists, Pennsylvania law calls for a referral to that of Kansas; however, as to the sufficiency of the evidence, a Pennsylvania court, heeding the Pennsylvania case of Sudol v. Gorga, 1943, 346 Pa. 463, 31 A.2d 119, would apply the law of the forum.
The appellant notes that in determining the sufficiency of the evidence, we held “the federal court in a diversity case should follow the state’s rule.” Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 917.
However, he contends, in effect, that this was an unwarranted extension of the doctrine set, forth in Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, inasmuch as even that doctrine is subservient to the right to jury trial under the Seventh Amendment to the Constitution of the United States. In support of this proposition, appellant relies upon Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857, a case decided before Erie Railroad Co. v. Tompkins but recently ■ given new life by its citation in Byrd v. Blue Ridge Rural Electric Cooperative, Inc, 1958, 356 U.S. 525, 538, 78 S.Ct. 893, 2 L.Ed.2d 953. In addition, appellant cites Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935, and Magenau v. Aetna Freight Lines, Inc., 1959, 360 U.S. 273, 79 S.Ct. 1184, 3 L.Ed.2d 1224. None of these cases directly rule upon this issue, nor does appellant claim that they do, but rather they indicate a conflict in the circuits that will be reviewed by the Supreme Court when the point is appropriately raised. Dick v. New York Life Ins. Co., supra, 359 U.S. at page 445, 79 S.Ct. at page 926.
This case, however, does not require us to review our holding in Moran v. Pittsburgh-Des Moines Steel Co., supra, for we are of the opinion that the federal rule as to the sufficiency of the evidence would be exactly the same as the Pennsylvania rule. The Pennsylvania rule on expert witnesses was clearly stated by Chief Justice Moschzisker in Mudano v. Philadelphia Rapid Transit Co., 1927, 289 Pa. 51, 61, 137 A. 104, 107-108: “ * * * Moreover, we do not
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STALEY, Circuit Judge.
Two interrelated questions are raised by the plaintiff-appellant in this malpractice suit: (1) whether there was any vital inconsistency in the expert medical testimony he proffered in support of an essential element of his claim, and (2) assuming there was such inconsistency, was the district court justified in granting defendant’s motion for involuntary dismissal under Federal Rule of Civil Procedure 41(b), 28 U.S.C.
This is a diversity case in which all the action, except the trial, took place in Wichita, Kansas. At the time of the incidents involved, the defendant, Dr. Clayton L. Scuka, lived and practiced medicine in Wichita, but he has since removed to the Philadelphia area and presently resides in Havertown, Pennsylvania.
The case was tried, for the most part, on depositions; the only live witnesses besides the plaintiff and his wife were two physicians called to give expert testimony. Following the presentation of plaintiff's case, the court dismissed the action on defendant’s motion and later denied a motion to set aside the judgment of involuntary dismissal and for a new trial.
The plaintiff, Kenneth V. Dill, was employed as a service specialist or troubleshooter for a Wichita gas company. While waiting in his office during the midnight shift, he had fallen asleep on a chair with his feet on his desk. Upon awakening he experienced pain in his left leg, in the region of the calf. He consulted defendant who hospitalized him on March 9, 1954. The pain was diagnosed as resulting from a blood clot, and while under treatment at the hospital plaintiff suffered two embolisms in the chest, which disappeared after treatment. During the period of hospitalization the plaintiff was administered anticoagulants in order to control the blood clotting.
To further diagnose the cause of the blood clotting, defendant requested that the staff urologist, Dr. Miles, who had previously performed over 300 aortograms,
perform one on the plaintiff. Plaintiff consented to the procedure and discussed it at various times with both doctors. Dr. Miles examined the patient, checked his prothrombin time
and decided to proceed with the aortogram. Following administration of anesthesia, Dr. Miles attempted to inject dye into the aorta; however, he was not satisfied with the nature of the blood which appeared in the needle and discontinued the procedure. The patient had been apprised of the fact that Dr. Miles and not Dr. Scuka would perform the aortogram and that the latter would not be present.
In the week following the attempted aortogram, plaintiff suffered great pain and thrashed about in his bed. The nerve functions in his lower extremities deteriorated, and he lost control of his legs from the hips down. In addition,
he was unable to urinate and have normal bowel movements and lost the ability to copulate. His condition was described as “flaccid paralysis.” Plaintiff contends his present condition results from the attempted aortogram and that the defendant was negligent in ordering this procedure under the circumstances. He additionally contends the defendant was negligent in failing to perform a laminectomy to relieve the condition resulting from the aortogram.
This being a case in the federal courts solely by virtue of diversity of citizenship, the court applies state law and takes its law from the authoritative decisions of the forum, including conflict-of-law rules. Since all the operative facts took place in Kansas, Pennsylvania law refers to Kansas, the place of wrong, for the legal effect to be given them. Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908, certiorari denied 1948, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770, and Pennsylvania cases collected therein at footnote 3, page 910 of 166 F.2d. It is equally well settled that the application of Pennsylvania conflict-of-law rules determining whether a given question is to be characterized as substantive, with reference to the foreign law, or procedural, where the reference will be to the law of the forum, controls us here. Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 910. Thus, in regard to whether a right of action exists, Pennsylvania law calls for a referral to that of Kansas; however, as to the sufficiency of the evidence, a Pennsylvania court, heeding the Pennsylvania case of Sudol v. Gorga, 1943, 346 Pa. 463, 31 A.2d 119, would apply the law of the forum.
The appellant notes that in determining the sufficiency of the evidence, we held “the federal court in a diversity case should follow the state’s rule.” Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 917.
However, he contends, in effect, that this was an unwarranted extension of the doctrine set, forth in Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, inasmuch as even that doctrine is subservient to the right to jury trial under the Seventh Amendment to the Constitution of the United States. In support of this proposition, appellant relies upon Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857, a case decided before Erie Railroad Co. v. Tompkins but recently ■ given new life by its citation in Byrd v. Blue Ridge Rural Electric Cooperative, Inc, 1958, 356 U.S. 525, 538, 78 S.Ct. 893, 2 L.Ed.2d 953. In addition, appellant cites Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935, and Magenau v. Aetna Freight Lines, Inc., 1959, 360 U.S. 273, 79 S.Ct. 1184, 3 L.Ed.2d 1224. None of these cases directly rule upon this issue, nor does appellant claim that they do, but rather they indicate a conflict in the circuits that will be reviewed by the Supreme Court when the point is appropriately raised. Dick v. New York Life Ins. Co., supra, 359 U.S. at page 445, 79 S.Ct. at page 926.
This case, however, does not require us to review our holding in Moran v. Pittsburgh-Des Moines Steel Co., supra, for we are of the opinion that the federal rule as to the sufficiency of the evidence would be exactly the same as the Pennsylvania rule. The Pennsylvania rule on expert witnesses was clearly stated by Chief Justice Moschzisker in Mudano v. Philadelphia Rapid Transit Co., 1927, 289 Pa. 51, 61, 137 A. 104, 107-108: “ * * * Moreover, we do not
mean, by anything said in this opinion, to intimate that, whenever a litigant calls experts and they disagree, this necessarily destroys his case on the particular point of disagreement; what we do mean is that, when plaintiff has the burden of proof on an issue of fact which goes to the essence of any material part of his case, and he selects scientific experts to speak for him, be
cause the point at issue can be solved only in that way, such experts are peculiarly his mouthpiece, — they take his place and, so far as the rule laid down in the line of cases first mentioned in this opinion is concerned, may be viewed as though they collectively were the plaintiff himself. If, after being equally accredited by plaintiff, witnesses of the character just described so vitally disagree on essential points as to neutralize each other’s opinion evidence, their sponsor has not borne the burden of proof which the law casts upon him, and to that extent has failed to make out his case,— though, in our opinion, minor points of difference between such witnesses should not be thus viewed.”
In accord: Menarde v. Philadelphia Transportation Co., 1954, 376 Pa. 497, 103 A.2d 681.
In analyzing the expert testimony offered by the plaintiff’s medical witnesses we have, for the purposes of the above-stated rule, ignored the testimony of Dr. Miles, the specialist who performed the aortogram. We agree with the appellant that Dr. Miles was a necessary witness and that he should not be bound by all of Miles’ testimony, for he was indeed a borderline hostile witness.
As we stated in Johnson v. Baltimore & Ohio R. Co., 3 Cir., 1953, 208 F.2d 633, 635, certiorari denied, 1954, 347 U.S. 943, 74 S.Ct. 639, 98 L.Ed. 1091,
“ * * * But when witnesses are called, in some stranger’s lawsuit, to tell about things they saw, heard, or did, there is no reason in logic or common sense or fairness why the party who calls them should have to vouch for everything they say.”
We must determine whether there is a clear conflict amongst the independent medical experts, excluding Dr. Miles. Thorough study of the testimony indicates that a jury could reasonably conclude that Doctors Manchester and Hyde were of the opinion that prescribing an aortogram for the plaintiff under the conditions which obtained fell below the standard of medical practice in the community.
The appellee in his brief refers us to the testimony of Dr. Fisher on this subject as being in vital disagreement. The testimony referred to is set
out in the margin.
We must conclude, however, that a fair reading of this testimony does not indicate a vital disagreement with Doctors Manchester and Hyde. In the first place, Dr. Fisher admitted he was familiar with aortography only in a
vague way. At no point does he categorically state it was proper procedure under the circumstances.
The appellee also contends that there was a vital disagreement among the experts as to the causal connection between the aortogram and plaintiff’s condition. Doctors Manchester and Hyde both were of the opinion that the condition resulted from the aortogram.
Appellee refers us to the testimony of Dr. Bacon as being in conflict on this point. A review of his testimony, however, at best indicates he was uncertain as to the cause.
This falls far short of the conflict referred to in Mudano.
Appellant also alleged post-operative negligence on the part of the appellee in that he failed to perform a laminectomy
following the aortogram. However, there was a lack of proof on this issue, for there was no evidence that failure to perform a laminectomy was action or inaction falling below the proper standard of practice. One expert, Dr. Manchester, merely indicated that such a procedure “might have been helpful,” and that he had done it on one other
patient himself, but that is a far cry from evidence that failure to perform constituted conduct below the standard of medical care in the community.
The judgment will be reversed and the cause remanded with directions to proceed in accordance with the opinion of this court.