Klein v. Aronchick
85 A.3d 487
Pa. Super. Ct.2014Background
- Marsha Klein took Visicol (sodium phosphate) off-label daily for ~5 years for chronic constipation; later developed progressive, permanent kidney disease with ~19% kidney function.
- Klein sued her gastroenterologist, Dr. Aronchick, alleging negligent long-term prescribing and failure to monitor, claiming Visicol caused phosphate nephropathy.
- Plaintiffs’ expert (Dr. Denker, nephrologist) opined Visicol caused Klein’s kidney failure and, alternatively, that the defendant’s failures at least increased the risk of that harm.
- Defendants’ experts disputed any causal link, offered alternative causes (e.g., hypertension, NSAID use, remote bulimia), and relied on medical literature to support their opinions.
- At trial the court precluded plaintiffs from eliciting testimony that the negligence "increased the risk of harm," admitted evidence of Klein’s remote history of bulimia, and allowed a defense expert to testify to the substance of learned articles. The jury found negligence but no causation; the Superior Court reversed and ordered a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether plaintiff could present "increased risk of harm" testimony when expert report addressed direct causation but did not use phrase "increased risk" | Klein: expert report and testimony showed negligence either directly caused or at least increased risk of kidney injury; "magic words" not required | Defendants: direct causation and "increased risk" are mutually exclusive; expert's direct-causation opinion precludes the relaxed standard | Reversed trial court: plaintiff entitled to present increased-risk theory; direct causation and increased-risk are alternative, not mutually exclusive theories when supported by testimony |
| 2. Admissibility of evidence of remote history of bulimia | Klein: remote, decades-old bulimia was irrelevant to causation and highly prejudicial; should be excluded | Defendants: records referenced bulimia and it was relevant to causation and impeachment | Reversed trial court: bulimia evidence was collateral, minimally probative, highly prejudicial; admission was abuse of discretion |
| 3. Cumulative defense expert testimony (three experts) vs. plaintiffs limited to one causation expert | Klein: allowing three defense causation experts was cumulative and unfair | Defendants: experts offered distinct clinical perspectives (nephrology, toxicology, gastroenterology); testimony was corroborative, not needlessly cumulative | Affirmed as to non-abuse: court did not abuse discretion in allowing multiple defense experts (corroborative testimony not necessarily cumulative) — but reversal based on other errors required new trial |
| 4. Whether defense expert improperly testified to the substantive truth of learned treatises (hearsay) | Klein: Dr. Roberts went beyond identifying authorities and recited substantive findings from NEJM and other studies for their truth | Defendants: relied on literature to support expert opinion | Reversed trial court: expert testimony impermissibly used treatises as substantive hearsay; trial court abused discretion in admitting that substantive testimony |
Key Cases Cited
- Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (establishes that loss of a substantial chance of recovery by negligent conduct supports causation when experts show increased risk)
- Jones v. Montefiore Hosp., 431 A.2d 920 (Pa. 1981) (plaintiff entitled to instruction on increased risk where evidence shows negligence increased risk and was a substantial factor)
- Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990) (discusses "impossible standard" where experts cannot say to reasonable medical certainty that negligence caused harm)
- Billman v. Saylor, 761 A.2d 1208 (Pa. Super. 2000) (applies increased-risk standard and describes when relaxed proof suffices to send causation to jury)
- Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000) (learned-treatise rule in Pennsylvania; experts may rely on literature but may not introduce treatises as substantive evidence)
- Brozana v. Flanigan, 454 A.2d 1125 (Pa. Super. 1983) (recognizes jury may find liability if negligence was a substantial factor or increased risk that was a substantial factor)