Tavella v. Greengate Mall Inc.

36 Pa. D. & C.4th 264, 1997 Pa. Dist. & Cnty. Dec. LEXIS 75
CourtPennsylvania Court of Common Pleas, Westmoreland County
DecidedMarch 4, 1997
Docketno. 5007 of 1994
StatusPublished

This text of 36 Pa. D. & C.4th 264 (Tavella v. Greengate Mall Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Westmoreland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tavella v. Greengate Mall Inc., 36 Pa. D. & C.4th 264, 1997 Pa. Dist. & Cnty. Dec. LEXIS 75 (Pa. Super. Ct. 1997).

Opinion

LOUGHRAN, J.,

This case involves an accident which occurred on June 27, 1993 when plaintiff, Paul Tavella, slipped and fell on a wet substance located on the floor in a public area of Greengate Mall. Following his slip upon the wet substance, the plaintiff fell down 17 tile or brick steps to a landing below. [266]*266As a result of the fall, the plaintiff sustained severe and serious injuries to the head, back and left leg. Evidence at trial indicated that he received treatment from 1993 for several years subsequent to the incident.

This matter was tried to a jury commencing on October 7, 1996, with a verdict rendered on October 10, 1996. The jury’s verdict was in favor of the husband-plaintiff in the amount of $420,000 and in favor of wife-plaintiff in the amount of $52,763.44. The jury also found the husband-plaintiff to be 7 percent negligent in connection with the fall, and therefore the verdict was molded to $390,600 for husband-plaintiff and $50,000 for wife-plaintiff for loss of consortium.

The defendant has filed a timely post-trial motion asserting various reasons for granting a new trial.

The first reason to be addressed is whether this court abused its discretion when permitting plaintiff’s physician, Dr. Pae Muthappan, to testify at trial. The basis for this assertion is that Muthappan did not expressly state within the body of his report his opinion to a reasonable degree of medical certainty that the plaintiff’s injuries were caused by the fall which occurred at Green-gate Mall on June 27, 1993.

Pennsylvania Rule of Civil Procedure 4003.5(c) provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or included in a separate report. Greer v. Bryant, 423 Pa. Super. 608, 621 A.2d 999 (1993).

The rule itself provides as follows:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under this rule, his direct testimony at trial [267]*267may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.” Pennsylvania Rule of Civil Procedure 4003.5(c).

The important aspect of this rule is that the testimony not be permitted to go beyond the fair scope of the testimony in discovery proceedings, and that it should not be inconsistent with the scope of testimony in the discovery proceedings or in reports.

Pennsylvania courts have indicated that in determining whether an expert’s trial testimony falls within the fair scope of his pretrial report, the trial court must determine whether the report “provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 459, 563 A.2d 155, 157 (1989), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991). The trial court must also inquire whether or not there has been any surprise or prejudice to the party which is opposing the proffered testimony of the expert based upon any alleged deviation between the matters disclosed during discovery and the testimony of such expert at trial. Trent v. Trotman, 352 Pa. Super. 490, 508 A.2d 580 (1986).

In this case, it appeared that the injuries that Mr. Tavella suffered as a result of the fall which occurred on June 27, 1993 were at no time in dispute. Dr. Muthappan testified in his deposition for use at trial that Mr. Tavella suffered low back injury, left leg injury, and post-traumatic headaches which he related to the accident itself. The defense was well aware of the injuries [268]*268and there was never in any pretrial proceedings a dispute as to whether or not these injuries were caused by the accident. There was no evidence presented at the time of trial nor was there any issue before trial regarding any other potential cause for Mr. Tavella’s injuries. There were no pre-existing conditions involved or at issue at trial, nor were there any subsequent injuries or accidents which would have presented an issue of causation to the jury. Therefore, utilizing the criteria in Trent, there was no surprise to the defense that Dr. Muthappan was going to testify that the injuries resulted from the fall.

Additionally, a review of the opening and closing speech of defense counsel, as well as a review of the in-chambers discussion relating to the motion in limine, shows clearly that defense conceded that there was no dispute as to injuries. Defense counsel’s opening statement stated:

“We are not disputing that Mr. Tavella fell down the stairs, not even disputing that there was an injury that was suffered by Mr. Tavella. We are not disputing that this accident occurred. The issue that is before you, ladies and gentlemen, here for this trial is was Greengate Mall negligent with regard to the fact that there was a puddle of water at the top of the stairs, and that Mr. Tavella slipped in that puddle of water, and fell down the stairs.” (Transcript of opening speech of defense counsel, p. 6.)

In light of the above, this court ascertained that there was no surprise to defendant that plaintiff’s expert would contend that plaintiff’s injuries came from the fall. Additionally, the defendant was given the option of a continuance to have the plaintiff examined if defendant’s counsel felt he was surprised by Dr. Muthappan’s testimony. Defense counsel refused the offered continuance and opted to move ahead with the trial.

[269]*269Moreover, a complaining party must demonstrate a prejudice by the testimony. Kemp v. Qualls, 326 Pa. Super. 319, 473 A.2d 1369 (1984). As discussed, not only was no surprise or prejudice shown by defense counsel, the offered continuance was declined.

In Pennsylvania, the admission of expert testimony is a matter soundly within the discretion of the trial court. Walsh v. Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995). Here, the defendant knew what Dr. Muthappan was going to testify to and was not contesting that the plaintiff was injured as a result of the fall. Accordingly, this court, finding no surprise or prejudice, properly exercised that discretion to allow the testimony.

The defendant’s second argument centers around the position that the trial court improperly failed to grant defendant’s motion for compulsory nonsuit on the issue of lack of notice.

Pennsylvania law is clear that a compulsory nonsuit may only be entered in cases where there is no doubt as to the inferences to be drawn from the evidence, and where the facts and circumstances lead unerringly to only one conclusion concerning which facts the minds of reasonable persons cannot honestly differ.

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Related

Greer v. Bryant
621 A.2d 999 (Superior Court of Pennsylvania, 1993)
Laubach v. Haigh
252 A.2d 682 (Supreme Court of Pennsylvania, 1969)
McMillan v. Mountain Laurel Racing, Inc.
367 A.2d 1106 (Superior Court of Pennsylvania, 1976)
Phillips v. Schoenberger
534 A.2d 1075 (Supreme Court of Pennsylvania, 1987)
Trent v. Trotman
508 A.2d 580 (Supreme Court of Pennsylvania, 1986)
Mineo v. Tancini
502 A.2d 1300 (Supreme Court of Pennsylvania, 1986)
Walsh v. Kubiak
661 A.2d 416 (Superior Court of Pennsylvania, 1995)
Prather v. H-K Corp.
423 A.2d 385 (Superior Court of Pennsylvania, 1980)
Hickman v. Fruehauf Corp.
563 A.2d 155 (Supreme Court of Pennsylvania, 1989)
Stoughton v. Kinzey
445 A.2d 1240 (Superior Court of Pennsylvania, 1982)
Kemp v. Philadelphia Transportation Co.
361 A.2d 362 (Superior Court of Pennsylvania, 1976)
Griffin v. Tedesco
513 A.2d 1020 (Supreme Court of Pennsylvania, 1986)
Diakolios v. Sears, Roebuck & Co.
127 A.2d 603 (Supreme Court of Pennsylvania, 1956)
Botek v. Mine Safety Appliance Corp.
611 A.2d 1174 (Supreme Court of Pennsylvania, 1992)
Mineo v. Tancini
536 A.2d 1323 (Supreme Court of Pennsylvania, 1988)
Kemp v. Qualls
473 A.2d 1369 (Supreme Court of Pennsylvania, 1984)
Davidson v. Borough
136 A.2d 155 (Superior Court of Pennsylvania, 1957)

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Bluebook (online)
36 Pa. D. & C.4th 264, 1997 Pa. Dist. & Cnty. Dec. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavella-v-greengate-mall-inc-pactcomplwestmo-1997.