435 Pa. 503 | Pa. | 1969
Lead Opinion
Opinion by
On November 1, 1960, Kenneth N. Nissley, who was employed as a trainman by the Pennsylvania Railroad at its yards in Enola, Pennsylvania, wrenched his back while chasing a runaway box car. On May 24, 1961, Nissley died of aleukemic leukemia. The present action,
The Railroad advances two reasons as to why the judgment should be set aside and a new trial ordered. First, the Railroad argues that the trial court committed reversible error in allowing an expert medical witness, whose identity was not revealed in answer to a timely interrogatory seeking the names of all medical
Before trial, counsel for the respective parties entered into a medical exchange agreement under which the Railroad gave to the plaintiff the report of a pathologist it had engaged and the plaintiff delivered to the Railroad reports received from Nissley’s two attending physicians. On October 1, 1965, the Railroad served upon plaintiff the following interrogatory: “State the name and address of each physician whom plaintiff or anyone acting on her behalf has consulted as to whether or not there is a causal connection between the accident referred to in the complaint and the decedent’s death.” (Emphasis added)
At a pre-trial conference held six weeks later, plaintiff’s counsel agreed to answer this interrogatory before December 6. This he failed to do, and on December 21 he asked for more time to answer the interrogatory since he was still searching for an expert to testify about the causal connection between the accident and the decedent’s death. Finally, on February 2, 1966— five days before the jury was sworn—plaintiff’s counsel filed the following answer to the Railroad’s interrogatory: “No answer required under P. R. C. P. 4011(d).”
The. several revolutions which have occurred in the field of procedure, insofar as they relate to problems of pre-tria] discovery, have had as their principal focus the desire that a trial should be an inquiry into the facts of a case with each party in a position to examine the evidence upon which a decision will rest. TVTe have moved away from what was described as “the sporting theory of justice” and have embraced a theory of wide-ranging and mutual discovery. “One advantage of discovery is the protection it gives the adversary against surprise evidence which can be proven false or which can be put in a truer and less damaging light if there is opportunity to investigate the matter and produce rebutting or qualifying facts.”
In the light of these principles, the specific provisions of the Pennsylvania Rules of Civil Procedure should be examined. Rule 4005(a) provides that “any party may file and serve upon any adverse party written interrogatories to be answered by the party served . . . who shall furnish such information as is available to the party. . . .” Rule 4007(a) more specifically states, “Any party may take the testimony
Two conclusions can be drawn from a study of these three rules. First, the Railroad was entitled to a list of all the plaintiff’s expert medical witnesses.
The element of surprise is particularly crucial given the nature of this case. It is agreed that a causal relationship between Nissley’s accident and his death from leukemia was the principal issue for trial. In such a case the jury is confronted with complicated, often bewildering, medical testimony. Inevitably, the weight which jurymen give to conflicting testimony will reflect the apparent expertise of the witnesses. In such a case the credentials and qualifications of a witness will be matters of great import and any demonstrable discrepancies in the qualifications claimed by the witness will greatly affect his credibility. In such a case, therefore, it is of particular importance that the identity of expert witnesses be known in advance so that full examination of their qualifications may be made. This case is an excellent example of the need for such a rule, for Dr. Mead’s theories are not accepted by the vast majority of the medical profession.
The court en banc refused to grant a new trial because it concluded that Dr. Mead’s testimony was relatively unpersuasive when compared with the testimony of the plaintiff’s other medical expert and that the cross-examination of Dr. Mead was so effective that it was impossible to conceive of any alternative line of inquiry which would have been more effective. As
This case aptly demonstrates that the integrity of the discovery rules can be preserved only if the rules are taken more seriously than they were in the lower court. The rule requiring a party to object to an improper interrogatory within ten days was included in the Rules of Civil Procedure for a purpose; that purpose would be defeated if we were to accept the lower court’s apparent conclusion that the plaintiff’s failure to follow this rule was not crucial under the facts of this case.
Judgment reversed. New trial granted.
Suit was brought under the provisions of the Federal Employers’ Inability Act (45 U.S.C. §51 et seq.) and the Safety Appliance Act (45 U.S.C. §1 et seq.).
Rule 4011(d) provides: “No discovery or inspection shall he permitted which ... (d) would disclose the existence or location of reports, memoranda, statements, information or other things made or secured by any person or party in anticipation of litigation or in preparation for trial or would obtain any such thing from a party or his insurer, or the attorney or agent of either of them, other than information as to the identity or whereabouts of witnesses.”
James, Civil Procedure, at 183; see also: 6 Wigmore, Evidence, §1845 (1940).
See: Henry v. Johnston, 36 Pa. D. & C. 2d 523 (C. P. Mifflin, 1965) ; Heller-Murray Co. v. Sharon Builders Supply Co., 33 Pa. D. & C. 2d 189 (Mercer, 1964) ; Lewis v. Geisinger Medical Center, 30 Pa. D. & C. 2d 32 (Montour, 1963).
Cf. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947).
Rule 4019 states: “(a) The court may, on motion, make an appropriate order if (1) a party wilfully fails to file answers or sufficient answers to written interrogatories served under Rule 4005 . . . (c) The court, when acting under Subdivision (a) of this rule, may make ... (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated . . . testimony . . . .” (Emphasis added)
Both of plaintiff’s experts admitted that they knew of no medical authority who had expressed an opinion that a back injury could cause leukemia.
Concurrence Opinion
Concurring Opinion by
I concur in the grant of a new trial although I do not agree with everything which is said in the majority Opinion. Moreover, I believe that Rule 4011(d), which provides that a party must give (when requested) the other party “information as to the identity or whereabouts of witnesses,” should be amended (1) by changing the “or” to “and,” and (2) by adding “and the names and whereabouts of every expert who was consulted.”
For each of these reasons, I would grant a new trial.
Dissenting Opinion
Dissenting Opinion by
I strenuously object to this Court’s improvident sacrifice of the rights of the appellee-verdict Avinner, even though done in the ostensible furtherance of procedural liberality. The majority holds that the lower court should have compelled an answer to the defendant’s interrogatory, even though that interrogatory was admittedly violative of Buie 4011(d) of the Pennsylvania Buies of Civil Procedure. The Buies of Procedure in certain terms preclude the revelation of the work product of the party’s legal counsel, or other privileged information relating to liability aspects of the plaintiff’s case. The basis upon which the pre-trial disclosure of the identity of expert witnesses is justified is to afford the opposing party adequate opportunity to prepare for cross-examination of witnesses who will ap
But, in the process of the majority’s setting things straight, what happens to the plaintiff’s verdict? Procedural fairness is, of course, essential but it cannot be allowed to cover the mistakes of counsel. Defense counsel could have, three days before trial, secured the names of the plaintiff’s expert witnesses by amending its interrogatory. He did not even try to do so.
In summary then, the majority subverts and nullifies the clear policy of the Buies regarding the discovery of privileged information to foster a principle of waiver, whose existence is doubtful. The majority
Rule 4005(b) of tbe Pennsylvania Rules of Civil Procedure provides that a party may file and serve written objections to interrogatories witbin ten days after tbeir service. It is quite obvious, however, that tbe Rule makes no mention of a waiver of defects for failure to object to tbe interrogatory witbin ten days of its service.