Plaintiff Gloria Fields filed this medical malpractice action against defendant Farouq A. Samhouri M.D. on April 3, 1995, alleging that defendant was negligent in plaintiff’s medical care. On February 7,1996, defendant filed a motion for summary judgment because plaintiff had not produced any expert report critical of defendant before the court-ordered deadline for the production of such reports, December 2, 1996. Plaintiff responded by asserting that they timely produced the expert reports of Murray K. Dalinka M.D., and Richard G. Schmidt M.D., which criticized defendant Samhouri by implication through the claim that plaintiff’s mass was im
Trial began on August 18,1997. On August 22,1997, a jury returned a verdict for plaintiff and against defendant in the amount of $150,000. Defendant timely filed a motion for post-trial relief. On September 15, 1997, the court entered an order granting delay damages to plaintiff in the amount of $19,038.78, molding the verdict to $169,038.78. Post-trial motions were argued on July 2, 1998. Because Dr. Austin testified in court beyond any fair scope of his pretrial expert report, the court granted defendant’s motion for post-trial relief and ordered a new trial on October 16, 1998. From this order, plaintiff timely appealed.
Plaintiff claims on appeal that this court erred in granting defendant’s motion. Plaintiff claims that Dr. Austin’s testimony was within the fair scope of his report. For the following reasons, the court’s ruling was proper and should be affirmed.
The following facts are undisputed. In February 1993, plaintiff noticed a small lump on her lower left ankle and reported it to her treating physician, Dr. John Eshleman.
After the court denied defendant’s motion for summary judgment based upon the reports of Drs. Dalinka and Schmidt and well after the expert report deadline had passed, plaintiff submitted the expert report of Dr. Ernest Austin. In his report, Dr. Austin concluded that defendant deviated from the standard of care in his treatment of plaintiff. His report identified the deviation as follows:
“It is my opinion, given to a reasonable degree of medical certainty, that Dr. Samhouris’s [sic] failure properly to interpret and pursue clinical findings and his failure to obtain clinical correlation of radiographic findings on Mrs. Fields’s [sic] tumor directly led to the failure to diagnose and treat this tumor in October and/or November of 1993 and increased the risk of harm to Mrs. Fields.”6
No other deviation was identified in the report. Immediately prior to trial, defendant made an oral motion to preclude the testimony of Dr. Austin, which the court denied.
“Mr. Troiani: Doctor, can you tell the jury why this is specifically below the standard of care?
“The Witness: Well, any time there’s a swelling or a mass that cannot be defined, it’s accepted medical practice to biopsy this lesion ...
“Mr. Tuttle: Objection, your honor. Move to strike.
“The Court: Overruled. Continue.
“The Witness: to find out exactly what the problem is.
“Mr. Troiani: And did Dr. Samhouri, from the review of your documents concerning Mrs. Fields, do a biopsy?
“The Witness: No.
“Mr. Troiani: And was that failure to do a biopsy below the standard of care, in your opinion, doctor?
“Mr.Tuttle: Objection, your honor.
“The Court: Overruled.
“The Witness: Yes.9 . . .
*230 “Mr. Troiani: Doctor, did the vascular problems of Mrs. Fields pose any problem, in your opinion, with respect to doing a biopsy?
“Mr. Tuttle: Objection, your honor. Beyond the scope.
“The Court: Overruled.
“The Witness: Realizing that there was evidence, by various studies, that the patient had vascular problems, particular care should have been taken in obtaining a specimen to determine what the pathology is in that leg.”10
Finally, Dr. Austin testified: “There’s no indication, in any of the records that I reviewed, that prohibited an attempt at salvaging her leg.”
None of these assertions were mentioned or in any way implied in Dr. Austin’s pretrial report. As a result, defendant could not possibly have anticipated that Dr. Austin had formed or would express the opinion that the failure to order a biopsy was any basis for liability. Defendant had no expert witness available in court to rebut this new theory.
The Superior Court set forth the proper standard for a trial court in Wilkes-Barre Iron & Wire Works Inc. v. Pargas of Wilkes-Barre Inc.
Dr. Austin’s report identified precise reasons for his opinion that defendant’s care and treatment of plaintiff was below the standard of care — namely, defendant’s “failure properly to interpret and pursue clinical findings” and “his failure to obtain clinical correlation of radiographic findings on Mrs. Fields’s [sic] tumor.”
Two recent Superior Court decisions addressing, this issue have approved the preclusion of expert testimony. In Walsh v. Kubiak,
“Because nothing in the report would have lead [sic] Walsh to anticipate that Dr. Murtagh had formed or would express the opinion at trial that the surgery was in fact necessary, the report lacked sufficient comprehensiveness and detail to inform Walsh of the defense’s expert testimony.”21
The Superior Court further held that the expert’s proposed testimony was prejudicial because the opposing party “would not have been able, based upon the report, to anticipate such testimony and adequately prepare to cross-examine” the expert
Similarly, in Jones v. Constantino,
“We do not think that a pretrial separate report of an expert is in comport with Rule 4003.5 where it fails to apprise the opposing party of the basis for the expert’s ultimate conclusion.”25
In this case, Dr. Austin’s report contained broad, conclusory statements and failed to state any real basis for his ultimate conclusion that defendant deviated from the standard of care. Likewise, his report failed to state what defendant should have done to comply with the standard of care. Dr. Austin’s testimony was obviously prejudicial to defendant’s case. Of course defendant was unprepared to challenge Dr. Austin’s new theories of negligence on cross-examination. Of course the defense had no ability to present any rebuttal witness. Because defendant’s expert, Dr. Weingarten, testified via videotape deposition before Dr. Austin took the witness stand, he also had no opportunity to rebut Dr. Austin’s new theory. Dr. Austin’s attempt to completely change the basis of his expert opinion at trial was a clear violation of Rule 4003.5.
For the foregoing reasons, Dr. Austin’s testimony concerning defendant’s deviation from the standard of care was well beyond any fair scope of his pretrial report and prejudicial to defendant. Accordingly, the court properly granted defendant’s motion for post-trial relief and ordered a new trial.
. Neither Dr. Weingarten nor Dr. Schmidt testified for plaintiff at trial.
. N.T., 8/19/97, at 253.
. N.T., 8/19/97, at 269.
. N.T., 8/18/97, at 54.
. N.T., 8/18/97, at 56.
. Affidavit of Dr. Ernest Austin M.D., April 21, 1997.
. N.T., 8/18/97, at 13.
. N.T., 8/19/97, at 152-53.
. N.T., 8/19/97, at 153-54.
. N.T., 8/19/97, at 155.
. N.T., 8/19/97, at 157. The actual claims presented in Dr. Austin’s report were not presented at trial.
. Defendant presented the testimony of its expert, Dr. Michael Weingarten M.D., via videotape. Dr. Weingarten’s deposition was taken prior to Dr. Austin’s testimony at trial. Dr. Weingarten concluded that defendant’s treatment of plaintiff was within the accepted standard of care.
. Pa.R.C.P. 4003.5(c).
. Havasy v. Resnick, 415 Pa. Super. 480, 492, 609 A.2d 1326, 1331 (1992), appeal dismissed, 537 Pa. 114, 641 A.2d 580 (1994).
. Walsh v. Kubiak, 443 Pa. Super. 284, 291, 661 A.2d 416, 420 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996).
. 348 Pa. Super. 285, 502 A.2d 210 (1985).
. Id., 348 Pa. Super, at 290, 502 A.2d at 213.
. Walsh, 443 Pa. Super, at 293, 661 A.2d at 420. See also, Pascale v. Hechinger Company of Pa., 426 Pa. Super. 426, 435, 627 A.2d 750, 754 (1993) (noting avoidance of unfair surprise concerning facts and substance of expert’s proposed testimony is primary purpose of rule requiring that testimony be within fair scope of report).
. Affidavit of Dr. Ernest Austin M.D., April 21, 1997.
. 443 Pa. Super. 284, 661 A.2d 416 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996).
. Id. at 293, 661 A.2d at 421.
. Id. at 293-94, 661 A.2d at 421.
. Id. at 294, 661 A.2d at 421.
. 429 Pa. Super. 73, 84-86, 631 A.2d 1289, 1295-96 (1993), allocatur denied, 538 Pa. 671, 649 A.2d 673 (1994).
. Id. at 86, 631 A.2d at 1296.
