Hassel, R. v. Franzi, J.
207 A.3d 939
Pa. Super. Ct.2019Background
- Plaintiff Robert Hassel (individually and as administrator of Mary Hassel’s estate) sued Dr. Joseph Franzi (PCP) and Dr. William Arnold (orthopedist) for negligence, wrongful death and related claims after Mary Hassel died of a pulmonary embolism following immobilization for a femur fracture.
- Dr. Arnold diagnosed a nondisplaced femur fracture, discussed DVT prophylaxis with Franzi, and left anticoagulation choice to Franzi; Franzi prescribed 325 mg aspirin twice daily rather than an anticoagulant.
- On July 1, 2013, Mrs. Hassel developed gastrointestinal symptoms then later shortness of breath and died; autopsy: DVT with pulmonary embolism causing cardiac arrest.
- Plaintiff presented experts (hematology, family medicine, orthopedics) who opined anticoagulants, not aspirin, were indicated and that failure to respond to husband’s calls contributed to death; defense experts from cardiology, pulmonary, internal medicine and orthopedics defended aspirin and the physicians’ conduct.
- An eight-day jury trial found Franzi negligent but that his negligence was not a factual cause of harm; it found Arnold not negligent. Post-trial motion denied; judgment affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of learned treatises at trial | Trial court improperly allowed defense to read, display and publish medical literature to bolster experts and defendant without limiting instruction | Defense relied on Aldridge framework allowing limited use of treatises; no limiting-instruction request was made by plaintiff at trial | Issue waived for inadequate preservation and failure to request limiting instruction; no reversible prejudice shown |
| Experts testifying beyond scope of reports (fair-scope rule) | Defense experts (Frankil, Christensen) testified on matters not disclosed in reports, causing unfair surprise | Trial court and defendants: testimony was within fair scope or responsive to plaintiff’s experts; reports contained relevant topics | Trial court did not abuse discretion; objections were untimely or the testimony was within fair scope and plaintiff cross-examined effectively |
| Redirect testimony beyond scope of cross-examination | Defense witnesses (and defendant) later testified on matters not covered on cross, expanding issues | Defense: redirect responses were proper reactions to plaintiff testimony and within trial court’s discretion | Waived for some claims; in any event court found redirect permissible as responsive and within discretion |
| Limits on cross-examination (prior malpractice involvement, expert bias, requests for admissions) | Plaintiff should have been allowed to probe Dr. Franzi’s prior malpractice involvement, Dr. Zakrzewski’s ties to defense counsel, and RFAs to show bias/credibility | Trial court: scope of cross is discretionary; some proffered lines were irrelevant or cumulative; plaintiff obtained core admissions during questioning | No abuse of discretion shown and plaintiff failed to prove prejudice warranting new trial |
Key Cases Cited
- Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000) (expert use of learned treatises permitted in limited ways; limiting instructions required)
- Crespo v. Hughes, 167 A.3d 168 (Pa. Super. 2017) (clarifies preservation and prejudice standards for learned-treatise errors)
- Wilkes–Barre Iron & Wire Works v. Pargas, 502 A.2d 210 (Pa. Super. 1985) (fair-scope rule: determine whether expert trial testimony would unfairly surprise adversary)
- Walsh v. Kubiak, 661 A.2d 416 (Pa. Super. 1995) (expert testimony must be within fair scope of pretrial disclosure to avoid unfair surprise)
- Klein v. Aronchick, 85 A.3d 487 (Pa. Super. 2014) (distinguishing corroborative from impermissibly cumulative expert testimony)
- Majdic v. Cincinnati Machine Co., 537 A.2d 334 (Pa. Super. 1988) (learned-treatise use on cross-examination limited to challenging credibility, not for truth)