Scott v. DeFeo

46 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 267
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 16, 2000
Docketno. 96-C-2972V
StatusPublished
Cited by1 cases

This text of 46 Pa. D. & C.4th 353 (Scott v. DeFeo) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. DeFeo, 46 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 267 (Pa. Super. Ct. 2000).

Opinion

BLACK, J.,

Before the court are defendants’ motions to preclude plaintiff from offering expert testimony of Raymond A. Fritz D.P.M., a treating physician, in this medical malpractice action. During discovery, plaintiff identified Dr. Fritz as a subsequent treating physician of plaintiff, but did not identify him as an expert witness in response to expert interrogatories. Nor did plaintiff submit an expert report from Dr. Fritz, and the deadline for such reports to have been submitted expired on March 1, 1998. Nevertheless, defendants did obtain through discovery a full copy of Dr. Fritz’s treatment records.

On March 15, 2000, plaintiff took the videotape trial deposition of Dr. Fritz. During this deposition, plaintiff elicited from Dr. Fritz certain opinions that were objected to by defendants’ counsel. Defendants seek to exclude those opinions from Dr. Fritz’s deposition testimony on the ground that they violate Pennsylvania Rule of Civil Procedure 4003.5, which provides in pertinent part as follows:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
“(1) A party may through interrogatories require
“(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
“(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogate-[355]*355ries may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert....
“(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rale, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.”

The purpose of Rule 4003.5 is to allow for certain limited discovery of facts known and opinions held by expert witnesses to the extent that these facts and opinions were acquired or developed in anticipation of litigation or for trial. Previously, discovery of such facts and opinions in advance of trial was prohibited. Rule 4003.5 does not apply to discovery of facts known or opinions held by a witness, whether or not an expert, if those facts or opinions were acquired or developed independently of the litigation and not for trial. Experts who know of facts or hold opinions not acquired or developed in anticipation of litigation or for trial are subject to discovery like any other witnesses under the general discovery rales. Rule 4003.5 is modeled after Federal Rule of Civil Procedure 26(b)(4), which also distinguishes between facts and opinions acquired or developed by an expert in anticipation of litigation or for trial and facts and opinions acquired or developed otherwise.

[356]*356In a personal injury case, a treating physician of the plaintiff can possess facts and opinions that fall into both categories. The treating physician may know of facts or hold opinions independently of the litigation, and he may also have acquired or developed facts and opinions for trial purposes. For example, the treating physician will certainly have information about the treatment he rendered, whether it was reasonable and necessary as a result of the plaintiff’s condition, and whether the charges for these services were reasonable. Such matters are all within the scope of providing medical care to the patient. Discovery of such matters proceeds under the general discovery rules, rather than Rule 4003.5.

On the other hand, the treating physician may be asked to opine on the quality of care given the patient by a prior healthcare provider. An opinion by a treating physician that the treatment rendered by a prior healthcare provider did not conform to the appropriate standard of care would be an opinion in anticipation of litigation or for trial. It is outside the scope of providing medical care to the patient. Thus, if a treating physician were to be employed as an expert witness on the standard of care, Rule 4003.5 would apply. In response to expert interrogatories, the expert would have to be identified and the information required by Rule 4003.5(1)(b) would have to be provided.

As we read Rule 4003.5, the phrase “acquired or developed in anticipation of litigation or for trial” applies not to the expert, but to the facts known or opinions held by that individual. This is apparent from the phraseology of the rule. The words “acquired” and “developed” make the most sense as modifiers of “facts” and “opinions.” Thus, Rule 4003.5 may apply to discovery from a [357]*357treating physician, even if consulted long before any thought of litigation, where the treating physician acquires information or develops opinions in anticipation of litigation or for trial. An opinion on the standard of care of a prior healthcare provider would be such an opinion, for which discovery would be limited to the procedures provided in Rule 4003.5. However, information obtained and opinions developed within the normal scope of providing medical care to a patient fall outside Rule 4003.5 and are subject to the general discovery rules.

A similar distinction was recognized by the Pennsylvania Supreme Court in a case involving a county coroner. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 488, 664 A.2d 525, 532 (1995). The court found that the coroner’s opinions regarding the cause of death were expert opinions, but that these opinions were not developed with an eye toward litigation. Therefore, the court held that Rule 4003.5 was inapplicable and could not be the basis for a discovery sanction.

In the instant case, defendants’ motions do not specify what portion of Dr. Fritz’s deposition testimony they seek to preclude. At oral argument, defense counsel identified two questions.1 On page 44 of his deposition, Dr. Fritz was asked by plaintiff’s counsel:

“Could you take a look at your note of October 30, 1995, and tell us what — tell the jurors please at that time [358]*358what was your consideration of the cause of Mr. Scott’s pain at that time?”2

Over defendants’ objection Dr. Fritz testified:

“My impression as stated in my note was contracted digital deformity, metatarsalgia, possible neuroma.”3 (emphasis added)

The second question identified at oral argument was at pages 69 and 70 of Dr. Fritz’s deposition, where plaintiff’s counsel asked:

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Cite This Page — Counsel Stack

Bluebook (online)
46 Pa. D. & C.4th 353, 2000 Pa. Dist. & Cnty. Dec. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-defeo-pactcompllehigh-2000.