Tann v. GAF Corp.

19 Pa. D. & C.4th 336, 1992 Pa. Dist. & Cnty. Dec. LEXIS 26
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 17, 1992
Docketno. 4275
StatusPublished

This text of 19 Pa. D. & C.4th 336 (Tann v. GAF Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tann v. GAF Corp., 19 Pa. D. & C.4th 336, 1992 Pa. Dist. & Cnty. Dec. LEXIS 26 (Pa. Super. Ct. 1992).

Opinion

KLEIN, R.B., J.,

Plaintiff lost an asbestos case when the jury believed the defense expert who stated that Fee Otis Tann did not have any asbestos-related injury. Plaintiff’s primary reasons for asking for a new trial is that the court precluded the introduction of a new expert pathologist long after the discovery deadline expired. Particularly in view of [337]*337the mass of asbestos cases and the need to process them in an orderly fashion, this was no abuse of the court’s discretion. To ignore the rules of discovery and allow unlimited continuances and last-minute additions of expert witnesses would make a very difficult case management program impossible.

Fee Otis Tann worked for the Globe Rubber Company from 1935 to 1975. Although he did not have constant asbestos exposure, he did have exposure when he repaired machines and when he removed old asbestos insulation from pipes and boilers and then installed new asbestos products.

In 1979, his internist, Dr. Diana Hutchins, concluded that he had significant pleural and parenchymal changes from asbestos. In the summer of 1986, Fee Otis Tann died of a heart attack. Dr. Hutchins, in a report dated January 8,1986, opined that respiratory problems from asbestos exposure contributed to his death. The defense expert, Dr. Theodore Rodman, concluded that while Mr. Tann had a number of pulmonary and cardiac problems, the cardiac problems led to his death and he had no pleural changes due to asbestos and no pulmonary asbestosis (asbestosis in the parenchyma or body of his lung). The jury agreed with Dr. Rodman and found for the defense.

The major complaint of the plaintiff in post-verdict motions is that the court refused to allow a new expert, a pathologist, to be introduced at the trial. The pathologist, according to his report, would have said that although there were no asbestos bodies in the tissue samples of the lung he reviewed, there was fibrosis that he attributes to asbestos exposure.

To understand the situation, it is necessary to consider the asbestos program as it was constituted in 1987. Under Supreme Court directive, mandatory non-jury [338]*338trials were held with appeals to a de novo trial before a jury. The purpose of the non-jury trial was to have a judicial evaluation of the case which hopefully would lead to a settlement. Therefore, discovery deadlines were set prior to the non-jury trial so that the judge would have all the information to properly evaluate the case. The schedule for both non-jury and any appeal was set a number of months in advance. Cases were grouped by plaintiff and defense firms to eliminate conflicts and expedite the trials.

Discovery deadlines were set prior to the non-jury trial, and videotaped depositions were prescheduled so that the trials could move smoothly thereafter.

The following is a partial chronology of the case:

August 1979 Complaint filed

May 15, 1985 Defense expert report (Dr. Rodman)

Jan. 8, 1987 Plaintiff’s expert report (Dr. Hutchins)

March 19, 1987 Defense expert report (Dr. Miller)

April 2, 1987 Plaintiff’s reports due

April 20, 1987 Defense expert report (Dr. Helwig)

April 30, 1987 Defense reports due

May 14, 1987 Non-jury trial continuance denied

June 15, 1987 Original jury trial date

June 16, 1987 Plaintiff tenders expert report— first indication that expert is a pathologist

July 13, 1987 Jury trial held

At the non-jury trial, counsel for Tann asked to have the case taken off the jury list and continued for a [339]*339month. Of course, at that point the calendar was full a month ahead. Therefore, the court did offer plaintiff the option of deferring the case. Many cases were being deferred during the appellate court challenge to a number of asbestos procedures, including mandatory pre-recorded videotaped trials. Plaintiff did not avail himself of the option to defer.

Plaintiff’s counsel also asked for additional time to submit a new expert report, complaining that defendant held the X-rays for a long period of time. Although apparently the pathologist (Dr. Beilin) had already been retained and in fact had written a report (not yet received by plaintiff), plaintiff made no mention of ever submitting a report from a pathologist. The court said that the original expert could write a supplemental report, but plaintiff could not retain a new expert at that late date.

When later in mid-June, plaintiff noticed a videotape deposition for Dr. Beilin, the court precluded his testimony. Never before had plaintiff offered testimony from a pathologist. Dr. Beilin was a pathologist who was “new” to the litigation, and it was customary to conduct a deposition regarding qualifications the first time a doctor testified. Likewise, if the plaintiff decided to use a pathologist, the defendants would want to obtain the slides, send them to a pathologist, get a report from the pathologist, and ultimately videotape his or her testimony. Obviously, this would result in a trial continuance for several months, and the necessity to find a slot to fit it in again.

The time to decide to use a pathologist is long before the discovery deadline expires, not after discovery has closed and the case is ready for trial. It is noted that the pathologist who examined Mr. Tann at Lankenau differed from Dr. Beilin and found that the death was [340]*340unconnected to pulmonary problems or asbestosis. Therefore, the defense would be confronted with an entirely new line of attack, the pathology reports, on the eve of trial. The defense would be prejudiced either by being forced to go to trial without a pathologist, or to face a continuance and have to again prepare the case months later.

It is true that the remedy of precluding an expert is a harsh one and only should be invoked if the lack of preparation of one side prejudices the other. However, in this case there is such prejudice.

It is noted that in this case, the theory that asbestos exposure caused Fee Otis Tann’s death was presented by the plaintiff. It was presented by Dr. Hutchins, his treating physician. What was precluded was a new expert with a different specialty to support the viewpoint of Dr. Hutchins.

To manage an asbestos docket, it is necessary for the court to take control and keep the cases moving. Therefore, there would be prejudice to the court system, and consequently all of the litigants, if discovery deadlines meant nothing.

As this court said in denying the request for extensions at the non-jury trial (N.T. 5/14/87 at 9):

“You got the X-rays back on March 27. It’s now May 15. You have had the X-rays for six weeks. You asked for 30 days’ extension, which you got. You had them for six weeks.

“So if the discovery deadline is going to be anything, it seems you’ve had plenty of time in this case. Nothing happened lately. The guy died in 1986.”

The court then allowed Dr. Hutchins to update her report but did not allow a new expert.

[341]*341It is true that the preclusion of expert testimony is a drastic sanction which should only be applied when the facts of a case make it absolutely necessary to do so. Kearns by Kearns v. DeHaas, 377 Pa. Super. 200, 210, 546 A.2d 1226, 1231 (1988).

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Cite This Page — Counsel Stack

Bluebook (online)
19 Pa. D. & C.4th 336, 1992 Pa. Dist. & Cnty. Dec. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tann-v-gaf-corp-pactcomplphilad-1992.