*1 of thirty-six days 1100(d). period The additional under Rule chal of the above-described defense the dismissal between presentment scheduling and the Commonwealth’s lenge charged cannot be grand jury appellant. to the charges thirty-nine days day, after the 180th Trial commenced some excludable, days properly six only and since 1100(d) provide sup claims under Rule no Commonwealth’s the charges upon refusal to dismiss the lower court’s port appellant’s application. and appellant discharged. sentence reversed
Judgment PRICE, J., dissents.
Margaret right, Appellees, P. in their own
v. INOUYE, D., Appellant. M. William Y. Superior Pennsylvania. Court
Argued Dec. 1976. Dec. Decided 1977. *4 Dautrich, with him White Wil- Philadelphia, John J. & liams, Philadelphia, appellant. for with him M. Philadelphia, Jeffrey Stop- E. Beasley,
James appellees. for ford, Philadelphia, WATKINS, Judge, JACOBS, President and Before CERCONE, PRICE, HOFFMAN, VAN der VOORT and SPAETH, JJ. VOORT, Judge: der
VAN an for malpractice This is action medical trespass guardian the mother and natural Edwin J. by brought behalf, Jr., minor, on his his father and by pradel, right. in their own A returned verdicts of mother $25,000 minor $700,000 boy for the guardian motions, hearing on the trial post-trial After parents. $700,000 a new or to trial reduce grant court refused of a new on However, it conditioned the denial trial verdict. $10,000 its $25,000 filing verdict on reduction remittitur. The remittitur filed. appropriate *5 defendant-appellant has the appealed judgment en- on tered both verdicts. The appellant seeks either a new trial because of asserted errors in the charge or, the a reduction in the amount alternatively, of the judgment guardian entered for the of the minor. 6,1964, Gradel, Jr., July age 5,
On Edwin J. then on whose this brought mother, behalf action was his was by injured by tree, out of a jumping both bones fracturing of the left forearm. Dr. William a Board-certified Inouye, general X surgeon, injured the arm rayed and set the fractures at in Jean’s Hospital Philadelphia. No contention is made that of doctor’s treatment the fractures had anything do with the complication followed. The and his moth- boy er returned to the doctor on four occasions between the date that the set 31, 1964, fractures were and October when the lad was discharged from appellant’s care. On three of those occasions X taken rays were of the fractures observe the process. An X healing ray was not taken on the final visit when was boy discharged.
On three in occasions the ensuing year, February, May September, 1965, the boy’s mother had him reexamined Inouye Dr. because lump soft tissue appeared had at the fracture site and was gradually increasing size. The diagnosed callous, doctor growth as a protective device of nature to shield the wound and not unusual under the circumstances, and prognosticated that it would gradually as the fractures disappear mended. On each visit the moth- er of the inquired appellant whether X ray would be but the doctor appropriate declined the suggestion explain- ing to mother that there was no evidence pain, there was good motion and arm, use the rate healing was not unusual and he felt that X further rays might result overexposure.
Dissatisfied, on November the mother took her Corn, son to Dr. an orthopedic Oscar surgeon. At that time of soft growth tissue at the site injury was about two inches above the surface skin. X rays were taken which disclosed that the fracture of the radius was well healed with partially and that the ulna was but cystic
healed old There on side of the fracture line. either changes *6 invaded the bone at that the tissue had the growth evidence then performed this fracture. Dr. Corn excision- point of 1965, 30, which revealed a al on November cancer of biopsy bone, grade malignan- a of low fibrosarcoma specifically the thereupon in small children. Dr. Corn did unusual cy, quite 16,1966, to the on excise middle operation January a second bone for about inches and of the infected four two-thirds fibula, the the of the purpose operation a from graft insert not any remaining by to excise tumor removed the being no of There was evidence cancer cells at biopsy. excisional incision, the leading of the to conclusion that all either end out, this cells had been removed. As turned cancer the recurred at the same not achieved for cancer situs 16, 1966, a later and on December Dr. year approximately left arm above the elbow. the The amputated boy’s Corn right-handed. lad is and in February trial took between place years after the accident after eight
the eleventh year the Between the dates of amputa- arm. amputation the X of the been taken at rays boy and trial chest tion to whether there was any determine intervals frequent cancer had metastasized and had thereby that the evidence to the bloodstream some by lymphatics transmitted been evidence that the cancer so body. of the No had part other in these examinations and Dr. was found Corn spread that, his there had been no metastasis. opinion, testified However, he annual examinations continuing recommended the recur. He the that cancer against might possibility rule that if a cancer has the of thumb metas- acknowledged within five in an adult and reappear years it will tasized in a child. Dr. testified that in 50 Inouye two years within a fibrosarcoma would recur at grade cases low 75% a Dr. testified that low cancer grade site. Corn original in this case was much more likely the fibrosarcoma such as site than to metastasize. He de- original at the recur estimate but testified recur- give percentage a clined the original However, rence at site was common. it was Dr. opinion Corn’s cancer had not at metastasized amputation time of reappear not elsewhere If body. again cancer struck boy’s boy, now a lad no years, way there would be of determining whether it was a new cancer or the old one metastasized. Gradel,
At the time of Edwin trial Jr. was 16 years age, health, active, in excellent extremely high sopho- school holding job. more time He been part had with fitted while, which prosthesis which, he had worn for a but by choice, he had not worn two previous years.
There was contradictory as to the extent young which the man’s earning capacity had been restricted amputation. All witnesses agreed Gradel could many jobs handle without diminution earning power but *7 that this of all was not true to jobs open him and that he handicapped somewhat both in and obtaining holding employment. The most favorable the Gradel claim was his that had earning ability been diminish- $6,000 ed a over work year averaged his of 47 expectancy The years. $282,000 estimate is resulting a loss of earnings appellees which calculated to have present $131,- a worth of Appellees’ 838. testimony also supported estimated medical future, expenses, past $47,606. and of The combined claim for of earning loss and power expenses medical aggregates $180,000. The of the award, $520,000, balance some only can compensation be attributed to pain and suffering. issue On the of and the pain suffering, young man testi- the fied to taunts of his peers when he wore the prosthesis and also described the embarrassment and humiliation of to a adjusting life without a left forearm. style He no gave testimony as to concern over any the of recur- possibility a rence of the through cancer metastasis.
At the conclusion the charge court’s to the appel- jury, lant’s counsel to have sought the court issue supplemental instructions to the effect that the should not into jury take account claim the that cancer later be may discovered to have metastasized. The request was denied. the correctness respects in four appellant challenges are to the These issues jury. instructions the trial court’s (2) negligence; (1) proof appellant’s with:
concerned (3) the amputation; caused negligence proof appellant’s award; an element in the of metastasis as possibility the of the on the charge non-taxability (4) and refusal judgment. submitted to negligence The issue of Negligence.
1. words: in these in a action “Now, proof malpractice burden of either, one, that the physician upon plaintiff, prove required and skill possess employ did not surgeon two, he exercise or, did not number knowledge man in like circum- reasonable a judgment care and stances. is neither warrantor of
“Now, a or surgeon physician treatment, of his of the result nor a guarantor cure negligence merely or inference of presumption there is no termi- physician provided by the medical care because result, have occurred might which in an unfortunate nated care and skill had been exercised. proper though even is, his diagnosis, as an aid his physician “If a himself of the scientific means not avail does judgment, for the best to him collection opened and facilities at his diagnosis, which to arrive upon factual data but negligence of judgment is not an error result which to upon factual basis adequate to secure an failing *8 or judgment. his support diagnosis a or unskillful negligent per- consists of “Malpractice which are devolved a of duties physician by formance relationship of his him on account upon incumbent and a care and skill proper or of want of patients his with act. professional of a the performance skill and to use reasonable dili- duty is under a “He of skill which degree skill and reasonable gence, the profession. characterizes ordinarily Inouye’s “Was Dr. failure to take X-rays on those such from periods departure a established standards of justify finding as to practice negligence on defendant’s part?”
The established that on three occasions between October, 1964, November, 1965, Gradel, and Edwin Jr. was back to Dr. for examination with brought Inouye respect to of soft tissue at site of growth and that on injury each occasion Dr. Inouye diagnosed as a growth callous which would as the fracture healed. disappear He did not an have X taken on ray any these occasions for the reasons attributed him. previously Dr. Corn testified that in his professional an judgment X taken, been ray should have that it would not have been to the dangerous boy led to might have an earlier discovery the cancerous nature of the growth.
The was entitled to jury choose between con these flicting professional opinions and the verdict indicates that it favored the view of Dr. Corn that an X ray should have been The taken. trial court’s instructions on this point correctly left it to the to determine whether this failure of Dr. to take an X on Inouye ray any of the three occasions in 1965 when the boy’s suggested mother such procedure amounted to negligence.
2. Causal connection between negligence ampu follow, It tation. does not proof, without that the negligent action, or rather non-action of Dr. Inouye caused the ampu tation. burden this causal establishing connection it, rests with those who assert namely, appellees. They attempted to make the causal connection the testimony of Dr. Corn to this effect:
“Based upon those facts do you opinion whether was a there substantial possibility survival of the arm other diagnosis had been made?
“A I believe so.
“Q And what is that opinion? *9 were earli-
“A I if this tumor mass discovered believe bone, there is er, greater invaded the a much before it had removable, not necessi- being thereby it likelihood of afterwards. amputation (Empha- the need for tating added.) sis an Doctor, you opinion on those facts do have
“Q based earlier, is, tumor diagnose the failure whether October, or was a substantial even February May his arm? losing factor the boy “A I it was. believe
“Q opinion? That is your “A Yes.” testified—
Dr. Corn further “Q Doctor, opinion you you given possibility saving there was substantial thought made; your had been is that diagnosis if earlier arm opinion? Yes, my opinion.
“A that is mean, what you ‘substantial do “Q possibility’ And by less than fifty percent, somewhat percent, more than fifty hundred percent? It on when this was picked up. “A depends were when the picked up early, swelling “If this tumor invaded, bone was not we had a very and the present, was involved, bone not chance that the was because good give you was involved later. I can’t percentages bone time matter. because it’s a just ‘substantial are
“Q you say possibility’ you When upon the time? saying: Depending that this picked “A I’m fact is was not saying No. and, therefore, it until invaded already the bone up steps that we went go through was necessary the result we through got got. are I know whether
“Q you answering my do not answered, or whether can be Doctor. question ‘a that de- possibility’ “When substantial does you say on when? pend on
“Á It when this tumor was depends picked up, how *10 it had like things far extended that.” It is to be that Dr. Corn noted could not with say any X that an on of the certainty ray three dates when Dr. the growth examined would have led to Inouye a discovery of the cancer before had invaded the bone. Nor could he that had it been discovered at say this earlier date that it would not have recurred and thus an required amputation. Both Drs. Corn and testified of Inouye that recurrence such is In a cancer common. Dr. summary, Corn’s was to effect an the that earlier examination would have im- the of proved avoiding chances amputation. trial
The court’s the charge to treated Dr. Corn’s if testimony, believed the as jury, sufficient to establish Dr. Inouye’s for the responsibility necessity of amputation. The court charged—
“There case, is no contention in this as I it, understand is, the cancer, the fibrosarcoma was caused by However, any conduct of defendant. the plaintiff is entitled to injuries recover for all damages which the a defendant’s was negligence substantial factor in produc- The defendant’s ing. negligence need not be the sole of cause other causes injuries; may contributed producing final result. The fact some other factor have been may a contributing cause an injury not does relieve defendant liability, unless find you that such other cause would have produced the injury complained of of his independently negligence.” (Empha- added) sis net this
The effect of charge that appellant’s negligence should treated as the cause of amputation if it increased likelihood that it would be required. The jury was told that the causal connection between negligence and was established unless were amputation they satisfied that have been amputation would necessary independently Dr. This Inouye’s negligence. effectively shifted the burden of from those proof asserting causal connection defending prove doctor to that his failure to take raysX was
404 The charge of the erroneous amputation.
not the cause point. at this 1975, February, a date subsequent case was tried
This
I),
(Hamil
Pa.Super.
v. Bashline
our decision Hamil
(Hamil
to Hamil v.
(1973)
prior
but
Bashline
307 A.2d
(1976).
We added that, in opinion, given proper his “Dr. Wecht testified had chance care, would have a 75% the decedent medical of survival.” testimony struck out Dr. Wecht’s as inade- judge
The trial delay a causal connection between to establish quate for the The trial a verdict defendant. death, and directed ruling: its explanation court said expert did not meet the standard of “The testimony on reasonable requiring opinion based medi- testimony the death in fact caused defend- cal certainty add- (Emphasis to exercise reasonable care.” ant’s failure ed.) in Hamil I this appeal
On Court held that although the testimony was insufficient to prove that the negligence was the cause of death under normal expert standards for testi- to mony, was sufficient allow the case go to to the jury under 323 of the Restatement (Second) of (1965). § Torts provides— That section undertakes,
“One who or gratuitously consideration, for to render services another which he should recognize as necessary protection person other’s or things, subject is liability the other for harm physical from resulting his failure to exercise reasonable care to his perform undertaking, if
“(a) failure to his exercise such care increases the risk harm, of such
“(b) the harm suffered because the other’s reliance upon undertaking.”
The trial court’s instructions to the jury in the case at bar were consistent position with our I. However, Hamil second trial the Hamil case resulted in another verdict for the defendant which was again appealed to this Court and reviewed in Hamil II. In Hamil we II overruled our deci- sion in Hamil I and held that the defendant had been entitled to its directed verdict in the first trial because of inadequacy Dr. Wecht’s establish the negligent delay as cause of death with adequate certain- ty. Dr. Wecht was 75% certain but we held that was not sufficient.
We the explained rationale of our thinking in Hamil II as follows:
“(1) proof that a defendant’s conduct increased the risk of
not,
is
323,
harm
under
proof that
the
§
conduct caused
harm;
(2)
323 does
a
require proof of
§
causal connec-
tion between defendant’s conduct
harm;
and plaintiff’s
(3)
case,
in this
requisite
causal connection was not shown.
(243 Pa.Super,
231,
at
“If the only evidence of causation expert testimony, and if the with all his expert, training and experience, can 406 harm, have caused the the conduct may
only conclude on the of the part jury to causation as any conclusion It must there- speculation. be based on necessarily would permitted cannot find admitted that fore be of increased risk. testimony solely expert from causation 233-234, 1369). 364 A.2d at Pa.Super. (243 harm, the risk of the conduct increasing “In addition Therefore, we must decide harm. have caused must testimony sufficiently met the appellant’s expert whether e., 323, i. whether it stated in requirement § causation that the decedent’s death re- definite terms sufficiently failure to exercise reasonable care. from appellees’ sulted 234-235, 1370). at 364 A.2d at (243 Pa.Super. evidencing causal Pennsylvania, expert “In of certainty. to a standard must conform link ‘[A]n injury ques- not that the testify witness expert [must] even was caused probably by been or which have tion . his . . that in professional but alleged negligence, came from the cause al- result question opinion Bowl, Inc., 383, 386, 443 Pa. 278 Houston v. Canon leged.’ v. 908, (1971). Young, supra; also McMahon A.2d 910 See Co., Pa.Super. v. & Niggel Sears-Roebuck 1370). at (1971). (243 at 364 A.2d Pa.Super. A.2d Wecht, case, qualified an eminently physi- this Dr. “In hospital’s that the failure to cian, unequivocally testified the kind of treatment that he decedent with provide the circumstances demonstrated an have had under should He testified unequivocal- care. also of reasonable absence substantial chances survival the decedent’s ly failure him hospital’s provide were terminated that, Dr. Wecht testified Finally, that treatment. with treatment, it is not certain that given proper even Wecht, to Dr. According would have survived. decedent chance of survival. only have had 75% he is that the decedent of appellant’s position “The crux failed to save him. unreasonably appellees died because *13 is not Appellant attempting show that the decedent’s affirmatively death was caused by appellees, but rather his life was not saved as a result of appellees’ context, conduct. In this negligent expert would have that, given medical testify proper treatment, Mr. Hamil would have survived. Dr. Wecht did not so testify.
“It
be
no expert
can ever
may
testify
person
that a
would have survived
heart
attack.
If
wrong
is
forbid
under such
recovery
circumstances, then the fault
not
lies
within the requirement
expert
testimony
certain, but within the requirement that there be a causal
link between defendant’s conduct and
harm.
plaintiff’s
If
regarded
causation
to be
as an
element
a cause of
action for
then
negligence,
expert
must
meet a
standard of certainty.
expert
testimony in this case
did not meet that standard and was
stricken.”
properly
(243 Pa.Super.
at 235
It is unfortunate that the case now under review was tried in the interval between Hamil I and Hamil II for it not the trial court of only deprived guidelines of Hamil II gave but it the false assurance found in I Hamil that an increase in the risk of injury was sufficient evidence to permit jury to find that had, fact, increased risk been cause of the injury.
Dr. Corn’s testimony, previously quoted, fails more clearly than Dr. Wecht’s to meet “a standard of certainty”. He could diagnosis not that a say of cancer at dates when boy brought to Dr. Inouye would have permitted removal of the cancer at that time without a later recurrence and consequent He amputation. could only say that the chance of such a result would have been improved.
The trial court’s direction to the jury, based as it was I, on the reasoning Hamil was erroneous in permitting the to find the appellant’s negligence responsible
amputation simply because delay taking an X ray had that, increased the risk. More than the charge of the trial court incorrectly proof shifted the burden of to the appellant *14 unless the appellees appel- a verdict for
by sanctioning amputation that the would have affirmatively proved lant event. required been a to charge jury, 14 A for request
Appellant’s It refused, granted. have been read as should which was follows: is on to establish plaintiff of proof A. The burden
“14 injury caused the treatment defendant that negligent A. 319 Pa. 546 Sharp, of. v. complained Fye [118 510] testify to on causa- expert required Plaintiff’s (1935). must that in his opinion terms and state categorical tion in charged defendant caused against the act omission thereof if a differ- and that any consequences and injury followed, had the injury been of treatment ent course Co., Sears, v. & Florig Roebuck not have occurred. (1957).” A.2d 419, 428 388 Pa. 445] [130 next to the issue of metastasis We turn Metastasis. 3. to have been a factor in significant appear which would $700,000 closing argument In the verdict. of the size counsel, anguish to the mental given emphasis appellees’ rest of his life Gradel, would suffer for the Jr. that Edwin was in the His argument the fear metastasis. because of words: following he has through. that anguish gone of the mental
“Think When you but he knows it’s cancer. be 16 may He this, it in the consider it past, and we talk about consider future. that an average ordinary know the you anguish “Do when the of cancer is go through diagnosis person must going the next film to show? And x-ray ‘What’s made? and the next one?’ the next one living literally and as anxiety apprehension “The live or I my years Do I have do time bomb: living I him and put hope he has behind 5? Thank God have but that doesn’t his full 58 gets years, that he pray and every this must anxiety boy go through that change the to a doctor’s office at going you imagine time. Can film, x-ray anxiety to have an and the the year end of over you must take when are for waiting somebody to read that film that the hoping radiologist walks out room waiting into with smile on his face? That’s He that, mental is entitled to a sum anguish. separate folks, to this figure.
. every year life, for the rest of his x-rays done, going he is have those films and the other folks: We have 9 thing, period and I year passage hope cancer, that’s the end of this but what if it isn’t? do do you How know? How that? you judge You are to have out in going figure room, the jury because have to you judge future this man. *15 it,
“I think to you ought at least think about what may future, in the all of these of happen items he damages will have.” attempted to counter this
Appellant argument by request- the court ing charge the jury—
“That since there was no evidence that the defendant cancer, caused the or that his treatment increased the risk of part metastasis to some other of the the body, jury not take into any must account claim that the cancer may later be discovered to have metastasized.” The motion was denied. evidence,
On the basis of
the
undisputed
should
jury
have been instructed that the
young man
entitled
no
recovery based on the
of
possibility
a later metastasis. This
case was tried more than ten years
Gradel,
after Edwin
Jr.
broke his arm
more
eight
than
after
years
the amputa
tion.
X
Appropriate
have been
rays
taken
since
periodically
amputation
the
and no evidence of a
recurrence
the
cancer elsewhere in
has been
body
discovered. Dr. Corn
opinion
testified that in his
the cancer
not
had
metastasized
guarded
he added the
X
although
prognosis should
rays
as
continue
be taken
He
precaution.
acknowledged
rule of
commonly accepted
thumb that if metastasis takes
will
within
in
place it
occur
two
a child and within five
years
adult,
although
in
he had read of cases
years
where had
much
occurred
later. The
of the
victim on the
his
suffering
was limited
incidents of
issue of pain
he
to comments and occa-
subjected
when was
early youth
He made no mention of
fear
any
of his peers.
sional taunts
metastasis,
frame of mind
view of
an understandable
since his
lapse
years
amputation.
the substantial
II
Hamil would rule out
certainty
by
established
standard
based on metastasis or
fear
damages
claim
on
facts of this case.
metastasis
to the
argument
jury by appellees’
Additionally,
by
called for an
correction
appropriate
counsel on this issue
353, 117
Green,
v.
273 Pa.
A.
It was said in Glasco
the court.
(1922)—
was probably
“The effect of the
statements
improper
by
were neither withdrawn
counsel
because
greater
they
court.
In Bullock v. Chester and
nor
corrected
379,
Co.,
Pa.
113 A.
we said:
T. R.
Darby
makes an unfound-
addressing
‘Where counsel
which the
on re-
damages,
presiding judge
ed claim for
aside,
correct, the verdict should be set
fails to
quest
may
measure of
damages
appear
the true
although
”
charge.’
general
final
of award. The
issue to be considered
Taxability
4.
the trial court to advise the jury
to the refusal of
relates
to federal income taxes.
subject
an award would not
*16
instruction was as follows:
The requested
know
will find
you
“The Court does not
whether
for.
If
make an
you
or for defendant.
award
plaintiff
will not be
Federal Income
subject
the award
plaintiff,
add nor
in
you
should neither
subtract taxes
Taxes
v.
award. Domeracki Humble
any
the amount
fixing
Co.,
(3d
1971).”
443 F.2d
Cir.
Refining
Oil and
in
for such an instruction is found
the deci-
authority
for the Third and Ninth
Appeals
sions of
Court
Co., 443
Refining
Domeracki v. Humble Oil and
Circuits:
1971);
Northern Inc. v.
(3d
Burlington
F.2d
Cir.
(9th
1975).
This conclusion elaborated in upon Domeracki where Aldisert, court, for a Judge unanimous speaking concluded: “The request avowed such a purpose to discourage a from an enlarging award to the extent erroneously believes that will be plaintiff upon called to pay income taxes.
“The instruction in this case requested would not require the introduction of any additional evidence. No reference or to any regulation any IRS specific statute would be tax necessary. expert No would need summoned as a No witness. tax tables would be hauled into the court- room. No additional computation would be In required. brief, such an instruction would not open the trial matters irrelevant to traditional issues personal injury litigation, and thus in way would no complicate the case or confess the jury.
“The of a very purpose cautionary instruction is merely to dispel possible misconception in the minds of the jury that government will amake valid claim ato portion of the award. Its effect is simply to juries dissuade from improperly increasing award because of this mistaken belief.
“Given the absence of complications that instruction tax engender, the consciousness the American public, and the general lack of knowledge about the statutory exclusion, we hold that in personal injuries actions the trial courts in this must, Circuit future, upon request counsel, instruct the jury award will not be subject to federal income taxes and that the not, therefore, jury should add subtract taxes fixing *17 of any amount award.” (pp. 1250 -1251) income into taking is tax authority against The weight in or death damages personal injury in fixing consideration Exchange and Girard Trust Corn actions, 63 A.L.R.2d Co., 530, 538, Transportation 410 Pa. Philadelphia v. Bank (1963) the courts this Common- puts A.2d trial It was held in Girard a category. in that wealth in jury fixing have instructed a should not court from gross income taxes should be deducted damages court, explanation The in of its of the decedent. earnings ruling, said: impression Pennsylvania. is one of first in
“The question
is that
fixing
rule in the United States
in
The majority
of decedent’s
ca-
earning
for the determination
damages
the matter should
tax
consequences
the income
pacity,
See,
‘Propriety
taking
consideration.
not
taken into
be
in
in fixing damages
person-
into consideration
income tax
action,’
This, in our
or
However, ap in case and one request ruling Domeracki is the converse of Girard proved jurors a similar Most complication. does not have is own income experience ordinary from their know would tell them that an award and Domeracki taxable taxable, something are not otherwise damages they is not not known, but that should add likely either to the calculation of lost or to earnings subtract taxes find no between Domeracki inconsistency its award. We However, in view of fact that this ruling and Girard. not be previous practice, from it should departure regard cases tried before this date. mandatory ed as a new trial. Reversed case remanded for Judgment
413 WATKINS, President concurs in Judge, the result. J., PRICE, files concurring opinion.
HOFFMAN, CERCONE and SPAETH, JJ., dissent on the of Judge basis Cercone’s in Dissenting Opinion Hamil v. II, Bashline 243 Pa.Super. 364 A.2d (1976). 1366 PRICE, Judge, concurring:
I join
support
and
in
majority opinion
its conclusions
(1)
as to
(2) Causal
Negligence
connection between negli-
gence and amputation
(3)
cannot,
Metastasis.
I
how-
ever, agree with
(4)
its conclusion on
Taxability of award.
attorneys
Defense
for
pressed
years for the adoption of
majority’s
conclusion
juries
permitted
that
be
to consider
the federal tax
in
exclusion
fixing personal injury damages.
Their argument
is that such
primarily
advice to jury would
tend to eliminate the assumed windfall
they
claim
damage recipients presently
under
enjoy
the exclusion. It
seems to me
there
no validity
claim,
to this
further
the whole tax matter is peripheral
to the
litigation.
It is not persuasive to me that
the Court of
Appeals
has,
the Third Circuit
in Domeracki v. Humble
Co.,
(3rd
&
And regardless the conflicting decisions, federal I be- lieve in Girard Trust Corn Exchange Bank v. Philadelphia Co., Transportation 410 Pa. 190 A.2d (1963), Pennsylvania Supreme Court has clearly placed Pennsylva- nia with the majority view in the United States that damages the fixing income tax are consequences peripheral matters that should not be taken into consideration. It is true that there is a holding not that a trial court should not mention income tax consequences, but me such a conclu- sion is inescapable from that portion of the Girard Trust quoted by case majority. clear import, and thus the law Pennsylvania, is that income tax consequences are not and that the incidence of damages in fixing considered not be damages to such should tax as it relates
income to the nor in jury, in the instructions at all mentioned of counsel. argument that in this conclude, majority, to the contrary
I therefore refusing requested court was correct the lower respect charge.
v. INC., INSURERS, Appellant. EXECUTIVE AND EDUCATOR Pennsylvania. Superior Court 15, 1977. Argued June Dec. 1977. Decided