McCann v. Amy Joy Donut Shops

472 A.2d 1149, 325 Pa. Super. 340, 1984 Pa. Super. LEXIS 4121

• Court: Supreme Court of Pennsylvania
• Decided: March 9, 1984
• Docket: 748
• Status: Published

Opinions

MONTEMURO, Judge:

This is an appeal from an order denying appellants’ motion for a new trial, entered in the Court of Common Pleas, Montgomery County.

On March 20, 1975, appellant, James McCann, suffered severe gastritis, leading over the next five days to a flareup of an existing ulcer. As a result of his condition, he underwent surgery which involved the removal of a portion of his stomach. Appellants brought this action against appellee because Mr. McCann had consumed one, and a portion of a second, cruller and a soft drink, which had been supplied by appellee on the evening prior to the onset of his illness. In this action, based on negligence and strict liability, appellants claim that the crullers supplied by appellee were excessively greasy and that consumption of them caused Mr. McCann’s ulcer to flare up. Mr. McCann’s wife, Patricia, claims damages for loss of consortium.

The case was tried before a jury, which returned a verdict in favor of appellee. A motion for a new trial was timely filed, and denied.

Arguments on appeal relate solely to strict liability. Specifically, appellants argue that in its charge to the jury, the trial court erred in 1) including “unreasonably dangerous” as an element of strict liability; 2) charging that contributory negligence was a complete defense to strict liability; and 3) giving an instruction on the uncalled witness rule.

In order for appellant to be entitled to a new trial, the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965); Riesberg v. Pittsburgh and Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).

We have carefully examined the record before us and have concluded, for the reasons described below, that no reasonable jury could have found that appellants were entitled to recover because causation, an essential element of a strict liability claim, was not in evidence. Consequently, we find it unnecessary to pass on the question of whether the challenged instructions were fundamentally erroneous; however, assuming arguendo that each was, we fail to see how such instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, supra; Riesberg v. Pittsburgh and Lake Erie R.R., supra.

Appellants assert that causation was established by the testimony of their expert medical witness, Dr. Crone. They offer the following testimony as presenting sufficient evidence of causation. There is no dispute that their portion of the testimony is the sole purported evidence of causation in appellants’ case.

Q. Based upon that history and examination of Mr. McCann, did you form an opinion within a reasonable degree of medical certainty regarding the cause of this ulcer episode that Mr. McCann had surgery for?

A. Well, as I stated in this report, I said that from the history noted above it would seem that Mr. McCann had healing of the ulcer that was diagnosed in 1968 and did not require any medication for anything resembling an ulcer from 1971 until the ingestion of the donuts in 1975. It is my opinion that even though someone has apparent healing of a peptic ulcer, that recurrence can occur when there are certain aggravating circumstances.

Then I went on to say that “It does appear that the ingestion of the greasy donuts could have been such an aggravating circumstance.”

Then I went on to say, “The ingestion of these donuts apparently caused an acute gastritis which, in turn, caused an increased acidity and spasms of the stomach.” ¹ (N.T. April 16, 1980, pp. 96-97)

There is no question that appellants’ expert never stated that he believed “to a reasonable degree of medical certainty” or that “in his professional opinion” the pastries appellant ate caused his gastritis.² Instead, Dr. Crone stated that “The ingestion of these donuts apparently caused an acute gastritis ...” The use of the word “apparently” might not necessarily be fatal if we could look to the expert testimony in its entirety and find that it expresses reasonable certainty. See e.g. Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976).

This is hardly the case here. In fact, the statement quoted in the paragraph above represents the most unequivocal thing said by Dr. Crone in regard to causation. Dr. Crone’s other statement that “It does appear that the ingestion of the greasy donuts could have been such an aggravating circumstance”, certainly does not buttress appellants’ argument, and also does not qualify as competent evidence. Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954). As our Supreme Court stated in Smail v. Flock, 407 Pa. 148, 152, 180 A.2d 59, 61 (1962): “[I]t is not enough to say that something could have happened. Anybody can guess.”

In holding as we do, we do not behave capriciously. The requirement that expert, medical testimony be expressed with reasonable certainty is well settled and supported by valid policy considerations. The rationale for the rule was discussed in some detail by our Supreme Court in McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971).

The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant’s conduct---- Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.

Judgment, affirmed.

CAVANAUGH, J., files dissenting opinion.

1 . Although we recognize that credibility is for the jury to determine, Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), we note that Dr. Crone’s testimony on cross-examination was as follows:

Q. I’ll try to ask that again. It’s not possible, then, for you to say to a reasonable medical certainty that there was anything defective about the donut which cause his ulcer flare-up; is that correct?

A. Well, I’ll answer it in that I have no direct knowledge of anything being wrong with the donut.

Q. So then you couldn’t give such an opinion without more knowledge of the donut and its contents; would that be correct.?

A. That’s right.

(N.T. April 16, 1980, p. 105)

2 . There is no dispute that Dr. Crone did not testify that the pastry was a "substantial factor” in bringing about the harm. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).