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In my prior posts on this subject, I discussed how the law requires a citizen to get the permission of a doctor before suing one and how those laws begin the process of allowing doctors to control what facts a jury gets to hear. The next step in the case requires some explanation of what expert witnesses are and how they are supposed to be used in court cases. As defined by the Federal Rules of Evidence and most state counterparts, an expert witness is simply “ witness who is qualified as an expert by knowledge, skill, experience, training, or education” who “may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” I’ve highlighted the last part of that because it is critically important in understanding the point I wish to make about the use of expert witnesses in malpractice cases. Expert witnesses were only ever meant to help the jury understand the evidence. They were only ever meant to help the jury determine a fact. That is, the jury receives all of the relevant facts and determines for itself what facts are important and uses those important facts to determine what happened. If expert witnesses can help the jury do that job, great. But that’s all it was ever supposed to be. The jury was the fact-finder and its members used their own judgment to determine what was important and what was not. If experts were used at all, it was only to help (assist) the jury with its job. They jury was the primary fact-finder. Experts were secondary helpers, at most. Let’s take a look at what has happened in medical negligence cases. Are experts still playing the helper role they were designed to play or has their role expanded far beyond that?

In the first part of my series of posts on the subject of expert witnesses in medical malpractice case, I talked about the dangers of allowing so-called experts to interfere with the jury’s fact-finding role.  Juries are supposed to hear all of the relevant facts and make their decisions based on the facts that they believe are important, with as little interference as possible from outside influences.  We can and should trust our fellow citizens with this important task.  However, getting those facts to our community-representatives on the jury is a challenging task in a medical negligence case. Let’s start right at the beginning. You don’t need a truck driver’s permission to sue a truck driver. You don’t need a stockbroker’s permission to sue a stockbroker. In the vast majority of cases, you don’t need the permission of somebody like the defendant to file a lawsuit.  In medical negligence cases, that is simply not true. In order to even file a case against a doctor you first need the permission of a doctor just like the defendant. Because similar provisions exist in Pennsylvania and Ohio, I’ll use West Virginia as an example. When a West Virginia family has been victimized by the misconduct of a doctor, they often do not and cannot know all of the details of what happened because those details are controlled, to a large extent, by the doctors and the hospital that caused the harm in the first place. These families weren’t scrubbed in for the surgery that caused their loved-one’s death. The only thing they know about what happened during that surgery is what the doctors told them. Of course, one of the first steps in the case is to collect all of the medical records. Again, however, the facts that are contained in those records and the spin put on those facts are all controlled by the doctors and the hospital. Obviously, the family is already at a significant disadvantage. The key facts of the case have already been written by the people who caused the harm. Beyond that, this family will now need the permission of somebody just like the defendant before they can even file suit. West Virginia Code §55-7B-6 relates to all medical negligence cases in West Virginia. It states that before ordinary citizens of West Virginia can even file a lawsuit, they need permission to do so from somebody just like the defendant. If a West Virginia citizen is killed by the malpractice of a vascular surgeon, that citizen will need the permission of a vascular surgeon to even file a case, in most instances. More than that, the expert has to state exactly what happened and how that conduct caused harm. The expert’s opinion has to be based on the records, and the expert has to specifically identify the records that he or she has reviewed. Now, there are many well-qualified experts out there willing to speak up for families who have been hurt, but they are still doctors who see things like doctors do. The problem is clear. Before a case even starts, facts written by the defendant have now been filtered through a doctor with the same job. Ordinary citizens are supposed to have the right to seek justice in the courts that they pay for.  In malpractice cases, that right is subject to the blessing of doctors. Through this mechanism, the scope of what the jury gets to hear has already narrowed. It gets worse, as I’ll discuss in my next post on the subject.

One of the remarkable features of the American system of justice is the use of juries in civil cases.  The jury, comprised of members of the community to speak on its behalf, ultimately decides the facts of the case and renders a verdict. We rightly trust our fellow citizens with this important task.  The use of a jury in civil cases should stand as a rejection of trial by elites – people who think they know better than so-called average citizens.  It also stands as a rejection of the tempting idea that defendants should be tried to a jury of their peers, narrowly defined.  When a trucking company causes a wreck by overworking its drivers, would we want that case tried to a jury comprised exclusively of trucking company executives?  Of course not.  When a corporation understaffs its nursing home and the residents suffer as a result, do we think it makes sense for that jury to be comprised exclusively of nursing home executives?  Of course not.  Along similar lines, we would not want a medical negligence case against a doctor tried exclusively to a jury of doctors, so our system of civil justice is set up to ensure that malpractices cases are tried to a jury made up of members of the community, just like other cases. Of course, the companies that provide malpractice insurance to doctors and hospitals know this all too well.  They know they can’t get a jury made up of doctors and hospital executives.  But what’s the next best thing?  What if there was a way to make sure that the jury only got to hear certain facts?  What if there was a way to set the system up so that the jury only got to hear facts that the doctors thought were important, and no other facts that ordinary citizens might think were critically important?  What if there were a way to make sure that even those facts were filtered through a panel of so-called experts, who got to tell the jury not only what the facts of the case are, but why those facts are important?  If the system could be set up like that, there would be little room for the members of the jury to use their own collective wisdom and experience in deciding medical negligence cases.  Doctors would tell them what facts were important and the jury would never even get to hear any other facts.  They jury would not get to decide what facts were important and what facts were not.  Doctors would.  The jury would not even get to decide why or if certain facts were important.  Doctors would.  The jury’s sole function would be to pick between competing facts that were already pre-selected and filtered for them by members of the medical profession.  I would argue that this is not the way our system of justice is supposed to work, but it is exactly what has happened to a large extent in medical negligence cases.  I’ll discuss the beginnings of this problem in the next post in this series.

When you experience a situation where you realize that you may need legal help, it can seem overwhelming at first. You may be injured or sick, you may have just lost a job, or even worse, a loved one. There might be calls to make to insurance companies, medical bills piling up, a vehicle out of commission, and many other things you must deal with that seem confusing or intimidating. Contacting an attorney to discuss your potential legal situation may seem like another scary task about which you are just not certain of what to do. This doesn’t need to be the case, and there are different ways to reach out to an attorney to get an evaluation of your potential case and learn about your legal options. Telephone calls One of the most common ways to reach an attorney and discuss a potential legal claim is to pick up the phone and call the attorneys’ office. Firms will typically make their telephone number readily available through print advertising, TV and radio commercials, and their website. Once you call in, you can explain to the person who answers the phone that you would like to speak to a lawyer about a potential legal situation, or can even just say that you were in a car wreck, lost your job, or had a bad medical experience, and want to talk to a lawyer. Once you have been put in touch with a lawyer, they will go through your situation in more detail to determine what your legal options are. Telephone calls to an attorney are a fast and direct way to discuss the situation, however, if you call after business hours, it may be more difficult to speak to someone right away. Phone calls can also be overwhelming for some people, particularly when it requires them to discuss something sensitive or stressful. If that is the case, there are some other options to reach out initially to an attorney. Website inquiries Another direct way to contact a lawyer’s office about a legal claim is to submit some information through their website. This is beneficial for a lot of people who might not be able to initially call a lawyer’s office during business hours, and can also reduce some of the stress of having to speak to someone on the phone and answer questions about a difficult situation right off the bat. Oftentimes, the website will have a chat function that allows you to message with an intake representative to provide some information about your situation, after which, you will be put in touch with an attorney who can call or email you to discuss the situation in more depth. This is a good option for reaching out to an attorney at any time of day and for people who may not be quite ready to get into a full conversation about their situation. Social media Many lawyers’ offices have social media pages, such as Facebook and Twitter, where they can interact with new clients and make arrangements to discuss potential legal claims. You can send direct messages to the account through their pages, and explain that you are looking to speak to a lawyer. This can be a good option if you do not have access to a computer but can access the social media accounts through apps on your phone. You can contact the attorneys at Bordas & Bordas to discuss potential legal claims through any of these channels. Our attorneys and staff members will make sure that you are promptly directed to the appropriate person to speak to about your situation, and you will receive timely responses to any calls, messages, or submissions through our website. While contacting a lawyer can be an unfamiliar thing to do, we are happy to help make the process as easy on you as possible.

In May, a New York state jury ordered Johnson & Johnson (J & J) to pay $300 million in punitive damages to a long-time user or J & J’s talcum powder products who contracted mesothelioma – a deadly cancer most typically seen among asbestos-exposed tradesman. This punitive damage verdict comes on the heels of the jury’s $25 million compensatory damages verdict rendered a few weeks earlier. Verdicts in this range have previously been reached in cases involving ovarian cancer victims that used J & J talc products, but this verdict is believed to be the first of its size in a case involving mesothelioma. Mesothelioma is an aggressive cancer that affects the lining of the lungs, heart, abdomen and other internal organs. Mesothelioma is caused by exposure to asbestos fibers, is often diagnosed in older individuals who worked with or around asbestos products years or even decades earlier. Tragically, family members of such individuals are also susceptible to contracting mesothelioma from exposure to asbestos fibers carried into their homes by exposed workers who share the home. As with prior J & J talc cases involving ovarian cancer, the size of this verdict appears to have been driven by J & J’s internal documents, which “ bare the shocking truth of decades of cover-up, deception and concealment by J&J of the asbestos found in talc baby powder.” As with its other prior talc losses, J & J intends to appeal this verdict. Currently J & J faces more than 13,000 talc related lawsuits. While this New York case represents a substantial blow to J & J’s defense, the ultimate disposition of talcum powder/mesothelioma litigation remains to be determined. J & J has won several cases involving claims of mesothelioma from talcum power. In fact, a South Carolina jury cleared J & J of liability in a mesothelioma case the same day the New York jury delivered its verdict. Nevertheless, the overall picture developing remains deeply problematic for J & J, as jury after jury sees the evidence of J & J’s decades-long cover up over the inherent dangers of its talc products, mined from talc seams that are also contaminated with asbestos. Massive verdicts have been awarded to victims whom J & J marketed its talc products as being completely safe. If you believe that you have contracted ovarian cancer or mesothelioma from exposure to talcum powder products, you should contact an experienced law firm right away to explore the possibility of a claim.

In my last blog I covered how to support a claim for lost earnings when you are self-employed. Today I would like to cover the law that will support how you can make a claim for future lost earnings for more than what you have made in the past. In Lewis v. Pruitt, 487 A.2d 16, 21 (Pa. Super. Ct. 1985), the Superior Court stated the test for “impaired earning capacity” as being “whether the economic horizon of the disabled person has been shortened because of the injuries sustained as a result of the tortfeasor’s negligence.”  (Citing Bochar v. J.B. Martin Motors, 97 A.2d 813 (Pa. Super. Ct. 1953); Janson v. Hughes, 455 A.2d 670 (Pa. Super. Ct. 1982).) In Lewis, the plaintiff was employed at a dress manufacturing plant at the time of her accident. However, she had graduated from the Empire Beauty School in York, Pa. and was licensed as a beautician. She had previously maintained her own shop with equipment in her home, working thirty to forty hours a week for eleven years. Id. at 20.  Plaintiff had continued to do beauty work for friends and family, while employed at the dress manufacturing plant, “and had even discussed reopening a beauty shop with two of her fellow workers.” Id. at 20.  Defendant argued that the plaintiff needed to evidence a “definite plan to return to work in a given occupation” in order for it to be permissible to introduce evidence to demonstrate a loss of earning capacity in that field. Id. at 21.  The court rejected this argument. Id.  Instead, the court held, “Where, as here, the plaintiff has maintained her skills…continued to practice in her trade albeit on a part-time basis and engaged in discussions pointing towards a return to that occupation, we hold that it was not an abuse of discretion for the trial judge to submit this evidence to the jury on the issue of impairment of earning capacity.” Id.  In fact, the plaintiff in Lewis even “introduced evidence of the probable compensation available to her were she to resume full-time work as of the time of trial.” Lewis shows that a plaintiff need not even be practicing in a given trade at the time of the injury in order to submit to the jury evidence of future lost earnings in that trade.  As such, if you may not have been earning much in the job at the time of the incident because of your choice to be self-employed or have a job in a field that will not allow you to make as much as in another field, if you could make more money in the future by working for someone else or in a second trade you are skilled in, is relevant as to what you could earn based on your skills and experience; regardless of whether you had a “definite intent” to do so.  Thus, if it was permissible for the plaintiff in Lewis to introduce evidence of “probable compensation” were she was to return to a trade she did not actively practice, it should be permissible for you to introduce evidence of probable compensation if you were to practice your trade in a different way (i.e., through transitioning from self-employment to employment for someone else or in the second trade you are skilled in). Restatement (Second) of Torts § 924 cmt. d states, in regard to lost future earnings, “The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm.”  Accordingly, “the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined.” Id. (emphasis added).  The use of the phrase “could have received” suggests that future earnings can be measured not just with reference to what a plaintiff would have earned, with mathematical precision or certainty, but also to what a plaintiff could earn, taking into account relevant factors such as “the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life.” Id. § 924 cmt. d was cited approvingly by the Pennsylvania Superior Court in Pratt v. Stein, 444 A.2d 674, 696 n.36 (Pa. Super. Ct. 1982).  In Pratt, appellants argued, inter alia, that “the trial judge erred in charging the jury that an award for loss of future earnings represents the amount which appellee ‘would have or could have earned during his life expectancy but for the injuries that he sustained in this case.’” Id. (Emphasis in original.) Citing the Restatement (Second) § 924, the Superior Court stated that this approach “is axiomatic,” and that the trial court’s charge aligned precisely with the Restatement; therefore, there was no error. Id. Restatement (Second) § 924 cmt. d. and Pratt support calculation of a future lost earnings based not just on what one would have earned through self-employment, but also on what could have earned in other employment, but for injury. In Gillingham v. Consol Energy, Inc., 51 A.3d 841, 864 (Pa. Super. Ct. 2012), the Superior Court stated that a future earnings calculation “requires a reasonable basis to support such an award…Furthermore, to ensure that a plaintiff is fully compensated for loss future earnings , projected increases in productivity must be taken into account… by factors that include age, maturity, education, skill, and technology advances” (citing Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601 (Pa. Super. Ct. 2009)).  Moreover, a plaintiff need not have expert testimony to show loss of earning capacity; rather, a plaintiff can rely on his own testimony. Gillingham, 51 A.3d at 866.  In Gillingham —which was a case of consolidated appeals made by Consol Energy, Inc. against rulings made at the trial level in favor of appellees the Gillinghams and the Deckers, id. at 847. The Superior Court affirmed the trial court’s award of future lost earnings and future earning capacity as to both appellees.  The case of Mr. Decker is elucidating, as the court held that Decker could be awarded damages for future lost earnings and future lost earning capacity which exceeded what he was currently making with his employer at the time of the accident. Regarding Mr. Decker, the tortfeasor, Consol, challenged “the evidence lost future earnings to whether he would have earned commissions .” Id. at 864.  Consol alleged that the lost future earnings were “based on speculation.” Id.  Decker, at the time of the accident, had been earning no commission, for the two years he was with his current employer, Pump Action; and he was earning $100,000 per year, though he had been earning $125,000 with a prior employer. Id.  Decker anticipated that his salary at his current employer would have continued to increase to $125,000 (while he was only earning $60,000 - $80,000 per year post-accident). Decker v. Consol Energy, Inc., 2011 Pa. D. & C. LEXIS 167 at *27 (Pa. D. & C. 2011).  The jury awarded Decker $528,000, or $44,000 per year ($125,000 - $81,000), in lost wages, and $15,000 per year in lost commission for 12 remaining work years, which totaled $708,000. Id. at *24. In holding that the evidence supported the jury’s determination as to Mr. Decker’s future ability to earn commission, the court noted that “Mr. Decker had twenty-seven years’ experience in… a vast amount of skill in the field.  Additionally he had many contacts in the pertinent industry from working at .  He stated that he planned to work until age seventy because he did not have much in retirement savings.  There was nothing speculative or uncertain about the proof offered, and the jury verdict was within the range of that established by the evidence.” Gillingham, 51 A.3d at 865. As in Gillingham, an injured person may expect to earn more in the future based on increases in productivity.  In Gillingham, Mr. Decker anticipated using his skills and contacts in the future to receive more commission than he had received in his employment prior to the accident. Thus, there are numerous examples of which somebody could actually recover more money than they had in the past. Examples would be a recent college grad, a resident becoming a doctor, a person who was making less money being self-employed then he could had he worked for somebody else, and a person who just recently changed jobs. In short, there are various arguments, if the facts support it, to actually recover more money than they had earned in the past. It is important to understand, one is not always limited by their past earnings.

I was honored to be a part of organizing the Law Day 2019 luncheon in St. Clairsville, Ohio.  Juvenile Court Judge Al Davies was this year’s guest speaker. Like West Virginia, Ohio has been rocked by the opioid crisis.  Not surprisingly, this means  drug use among children has been on the rise.  But Judge Davies shed a ray of light on this otherwise dark picture. Most juvenile courts have a series of drug and alcohol programs as well as sentencing options that incorporate treatment and counseling. The drawback to these programs is that they deal with the issue of addiction after the fact.  But what about before the onset of addiction?  Is there any way to reach youngsters before they’ve been pulled into a culture of drug and alcohol abuse and end up in juvenile court? In 2016, the juvenile court in Belmont County, Ohio, partnered with schools, law enforcement, and volunteers throughout the county to establish the “Belmont County Schools Staying Clean” program.  Students can sign up at the beginning of each school year.  Being a part of this volunteer program provides students and their families with education, resources and mutual support.  It also gives students a way to confront peer pressure—citing their membership in the program gives them a real and meaningful way to say “no” to those who would invite them to experiment with illegal drugs. There’s plenty of fun for the kids.  Throughout the year, students are invited to a variety of sponsored activities and events.  But there’s a serious side too.  Random drug tests are performed throughout the school year.  The results are kept confidential and are not released to juvenile court officials or to the schools.  However, any positive test results are released directly to the student’s parents.  The idea is to promote family involvement as a way of dealing with drug issues as early and effectively as possible. The statistics Judge Davies shared are very encouraging.  At this point the “Belmont County Schools Staying Clean” program is up and running in eight middle schools and high schools throughout Belmont County.  Membership in the first year reached 700.  By the next year, the number of students participating in the program had nearly doubled—i.e., 1,313.  And membership continues to climb.  This year’s membership topped 1,500.  There’s also an educational program for fourth graders called “Too Cool For Drugs” that tries to reach students before they enter middle school. And the results?  As membership in these programs has increased, there has been a corresponding decrease in drug court numbers.   Reaching kids where they are, and engaging their schools, families, and communities in the effort, is working.  And that’s good news for our kids. The success of this program should be an encouragement to other communities.  Yes, the standard drug and alcohol programs used by juvenile courts are a help in combatting drug use among our children.  But what’s even more effective is when the court system joins hands with other interested organizations and volunteers to proactively reach into the schools.  I hope other communities will see what the juvenile court has done in Belmont County and follow its example.  Our kids deserve it! For more information, go to www.belmontcountyjuvenilecourt.com/programs.

Texting has become a standard part of today’s communication. In addition to the text communications that we exchange with friends, family members, and colleagues, we also receive text messages from doctor’s offices, hair salons, pharmacies, restaurants, delivery services, and other businesses to make and confirm reservations and appointments, relay that orders are ready, or provide other information to help facilitate things in our busy lives. Because texting is so common, many clients may want to use it as a way to communicate with their attorney during the course of a lawsuit. While texting with your attorney can be a quick and easy way to share information, there are important considerations to take into account when texting with an attorney, and in many circumstances, texting may not be the appropriate method of communicating with your lawyer. The most important consideration when communicating with your attorney in any manner, including text message, is that the attorney-client privilege remain protected. This means that the communications between you and your attorney need to stay between you and your attorney. As a general rule other people should not be able to participate, listen, or read what you and your lawyer discuss, otherwise the attorney-client privilege may be deemed waived and these communications may be subject to disclosure to the other side in your lawsuit. Texting can pose some significant risks to protecting the confidentiality of communications with your lawyer. Depending on privacy settings on your cell phone, the texts may be visible on the home screen for anyone to see as they are delivered to your phone, or someone may be able to simply pick up your phone and read through all of your text messages, including with your lawyer. Texts can also be harder for your lawyer to document in their file than emails, which are usually linked to a server and able to be saved in their original format, or hard copy communications such as letters, which are copied and filed when the letter is drafted and sent. Text messages can also be difficult for communicating complicated or in-depth information, and are not ideal for conversations where you may have a lot of questions for your lawyer and they will need to give you answers with lengthy explanations. In short, while it may be convenient and not pose problems to text your attorney for some basic communications, such as to confirm the time of a meeting, or the location of a deposition, keep in mind that text messages with your attorney should be exchanged with some caution and are often not ideal for discussions about your case. Emails and telephone calls are a more secure and practical way to effectively communicate with your lawyer in a way that ensures confidentiality and the attorney-client privilege are maintained.

I would like to extend a big thank you to the Washington Wild Things for a great night of baseball. Last Friday was “Friday Night Lights Presented by Bordas & Bordas” at Wild Things Park. It was a fantastic night of baseball. I would like to extend particular thanks to Stu Williams and his whole family for hosting us and making us feel welcome. The weather was perfect. The stands were filled with families enjoying the game. Mascots were everywhere, including Justice the Legal Beagle, Spike of the Wheeling Nailers, and, of course, the Wild Thing itself! The food was fantastic and the fireworks after the game are some of the best around. Over the years, I’ve taken my family to dozens of Wild Things games and we’ve always had a great time. Minor league baseball is a great way to experience the game. There’s no traffic. The ticket prices and concessions are very reasonable, and you can get your kids right down by the action. Of course, I don’t mind admitting my biases when it comes to minor league baseball. In fact, when I’m traveling for my cases, I try to make a point of stopping by to check out the local team. Many of our experts and witnesses come from different cities and towns around the country. When I have witnesses in Columbus, Ohio, I’ll try to catch a few innings of the Columbus Clippers in their beautiful downtown ballpark. I’ve worked with an excellent medical billing expert in Ashville, North Carolina, home of the Ashville Tourists. One of my favorite clients lives just a few miles down the road from the Hagerstown Suns in Hagerstown, Maryland.  Anytime I’m in Charleston, WV for work, I’ll stop in to visit the West Virginia Power. I have a worksite safety expert who lives in Toledo, Ohio, the home of the Toledo Mud Hens. After taking the deposition of a defense expert witness at Duke Medical Center, I watched it rain on the field of the Durham Bulls. Checking out these teams, even if it’s just for a few innings and a hot dog, provides a break from stresses of travel and helps me focus on the work I’m doing for my clients. So, I can speak from experience when I say that the Wild Things, their team, their staff, and their stadium rank right up there when it comes to providing a great baseball experience. Stop by and visit the next time they are in town.

Have you ever had the thought—what if the news channels selected a time period in which they completely blocked off all communications surrounding the tragedies the world experienced daily? Would that shift be enough to divert your attention from the toxic negativity to the more productive and rewarding news making a substantial impact upon each of us as individuals and who we are as people in our communities? Think about it. You may be having a perfectly normal day, content with your life as it relates to your inner circle and then you see on the news. Story after story—catastrophic news—a series of unfortunate events. Immediately, you are affected and sometimes you are completely unaware of what that affect has made upon you. Maybe you suddenly feel low. Maybe you aren’t as comfortable going places in public, travelling, or suddenly you aren’t sleeping quite the way you ought to? Feelings that take away from the experiences that allow us to have a more carefree outlook on the world and our personal surroundings, thus changing who we are. Every action has a reaction. I believe we could all benefit from a little more exposure to positivity. Regularly, the news is overtaken by scandals, acts of criminals, terrorists, and it affects all aspects of who we are as human beings. Whether it bring someone’s inner being down or even has a bit more sinister affect encouraging a mentally ill person to be publicized as a copycat criminal. Do we even know who we really are anymore? How long would it take for communities to reap the benefits of the renewed and uplifted individuals if we changed what we were surrounded by for a period of time? A day? A week, month, or year? Sadly, the people out there doing good aren’t getting the recognition they deserve but because they are good, they don’t expect it. I’d like to see that change too. Showing appreciation should be a priority. Now, I am not blaming the media. It’s not their fault. These are the top stories. These are the top stories that draw people in, and they watch. It’s tough to just walk away from a breaking story that gives you a bird’s eye view; promising to see the photos and get the scoop on the latest scandal or crime. People struggle to walk away. Naturally, this has an impact on our everyday lives. Our communities need to turn the tables, setting examples, encouraging the heroes; placing less focus on the darkness that seems to want the spotlight. We need an adjustment. Let’s expose ourselves to more positives, find the silver lining in the clouds that may surround us. Who knows, perhaps it just might wear off on us and we can all be better people as a community perhaps making a difference small or large, who knows, but collectively, we can make a difference as a whole. Afterall, every action has a reaction. It’s your choice. Do you want the good news or the bad news?

One of the most important services a person can provide to his or her community is to serve as a juror. Unfortunately, far too many people are misinformed about jury duty and what it involves, so they view it as a huge inconvenience that is to be avoided at all costs. In this blog entry, I hope to eliminate some of the misconceptions about serving on a jury, so that at least some of the readers may see jury service in a different light. You will first learn of being called for jury duty when you receive a letter in the mail from the Circuit Clerk in the county where you reside. The letter will inform you that you have been called to serve as a juror during a particular term of court, which lasts four months. You will also be given a questionnaire to complete, which is very important. The questionnaire provides information about you to the parties whose case you may be hearing, so it is important for you to carefully and completely answer all of the questions listed. Those questions allow the attorneys to make an informed decision about whether or not you would be a good juror for their particular case. Finally, you will be given instructions about when and where to call to determine if you need to report for jury duty. If you are one of the individuals called for jury duty, you will be asked to report to the county courthouse at 8:30 or 9:00, depending upon the practice of the particular judge presiding over the case. Once you arrive, the judge will give you a brief explanation about what is about to happen. You will take an oath promising to answer questions truthfully, after which the judge will briefly tell you about the pending case and the attorneys handling it. He will then ask you a series of general questions about your familiarity with the case, the parties, or the attorneys representing them. It may turn out that the plaintiff is your neighbor, or the defendant is someone that you have worked with for 20 years. There are all sorts of things that can come out in this first round of questioning, which is simply intended to determine whether or not there is some obvious reason why you should not serve as a juror. Once the judge has finished his questions, the lawyers will likely be given the opportunity to question you further. The questions they ask are usually designed to uncover information that will help the attorneys figure out your feelings on particular issues. For instance, a question I frequently ask of jurors is whether or not they or a member of their family has worked in the insurance industry. If my case is against Liberty Mutual Insurance for failing to properly evaluate and pay a claim, I probably don’t want an employee of State Farm on my jury. I think you get the point here. Depending upon the situation, an attorney may ask the Court to strike a juror “for cause” if that juror answers a question in a way that indicates he or she may be biased against one side or the other. The Court’s ruling will depend upon the specific circumstances of each case. After the attorneys have finished asking their questions, each party will be given an opportunity to eliminate two jurors from the pool. No reason is necessary; sometimes, a lawyer will look at a juror and just get the feeling that he or she isn’t right for the case presented. These are call peremptory strikes, and they are completely within the discretion of the attorney, save for one exception we don’t need to get into here. Finally, we will end up with six jurors and, in cases expected to last several days, one or two alternates. No one knows who the alternates are until all of the evidence has been presented, at which time the judge will excuse the alternates. Frustrating to the alternates, I’m sure, but necessary to make sure all jurors remain focused and attentive. When the case is submitted for consideration, the jurors retire to the jury room, select a foreperson, and begin their deliberations. Sometimes deliberation takes an hour; sometimes it takes several days. In the end, the verdict must be unanimous. The verdict is presented to the judge, and the trial phase of the case is concluded. The American system of jurisprudence, with its provision for trial by a jury of one’s peers, is unique in the world. It separates us from the other nations who envy our prosperity and our freedom. Being a part of such a unique and valuable system is an opportunity we should all value.

Recently, in the case of Hassel v Franzi, the Pennsylvania Superior Court addressed evidentiary issues in a medical negligence case involving learned treatises, notice, cumulative testimony and relevancy. Mary Hassel, a 65-year-old woman, presented to Dr. Arnold, an orthopedic surgeon, with complaints of worsening left knee pain. A MRI showed a fracture of Mrs. Hassel's femur. Dr. Arnold determined that surgery was not necessary and recommended immobilizing Mrs. Hassel's left leg to facilitate healing. Blood clot prevention, including the anti-coagulant medication, Coumadin, was discussed with Mrs. Hassel. Dr. Arnold told Mrs. Hassel that he would contact her primary care physician, Dr. Franzi, to discuss blood clot prevention treatment. Dr. Arnold and Dr. Franzi agreed that Dr. Franzi would select the course of treatment for Mrs. Hassel based on his existing relationship with her and extensive knowledge about her medical history. Dr. Franzi contacted Mrs. Hassel that same day and advised her to take 325 milligrams of aspirin, an anti-platelet medication, twice per day to prevent blood clots. Dr. Franzi discussed Coumadin and aspirin as options to prevent blood clots but did not discuss other drugs. Almost three (3) weeks later, Ms. Hassel was experiencing nausea, dry heaves, and diarrhea. At 5:54 p.m. Mr. Hassel called Dr. Franzi's office to report her symptoms and left a message with a staff member. He expected to be called back but wasn't. Mrs. Hassel's symptoms persisted and worsened and Mr. Hassel placed another call to Dr. Franzi's office. Once again, Mr. Hassel's call was not returned. Hours later, Mrs. Hassel began to experience shortness of breath and Mr. Hassel placed a call to 911 at 1:42 a.m. Paramedics arrived to transport Mrs. Hassel to the hospital and she died shortly thereafter. Mrs. Hassel's cause of death was cardiac arrest caused by the DVT in her left leg and subsequent pulmonary embolism that developed. Plaintiff filed negligence claims for the wrongful death of his wife alleging that the doctors were negligent in failing to prescribe an anti-coagulant medication as prevention for deep vein thrombosis, and for Dr. Franzi’s failure to return Mr. Hassel’s calls on the day preceding Ms. Hassel’s death. Ultimately, the case went to trial, and the jury found that Dr. Franzi's treatment fell below the applicable standard of care, but that his negligence was not a factual cause of any harm to Ms. Hassel and awarded no damages. The jury also found that Dr. Arnold's treatment did not fall below the applicable standard of care and no damages were awarded. Learned Treatises Hassel argued that the trial court committed multiple errors in allowing defense counsel to utilize medical literature ("Learned Treatises") during direct examination of their own defense experts to improperly bolster their opinions; and, to publish (i.e. display the documents on a screen projected for the jury to see) multiple medical literature articles during cross-examination of Plaintiff's experts. Pennsylvania courts allow an expert witness the limited use of textual material on direct examination to explain the basis for that expert's reasoning. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). On cross-examination, an expert witness may be questioned on the contents of any publication on which he or she relied in forming an opinion, or one in the field that he or she considers generally reliable; the evidence is admissible to challenge the witness's credibility, but the writing cannot be admitted for the truth of the matter asserted. Majdic v. Cincinatti Mach. Co., 537 A.2d 334, 339 (Pa.Super. 1988). Excerpts from a publication which are read into evidence for the purpose of proving the truth of the statements contained therein constitute hearsay and, therefore, are inadmissible. This fact is not changed merely because the document is read into evidence by the witness instead of being received as an exhibit for inspection by the jury. It is the purpose for which the information is offered, not the manner in which is introduced, which makes it objectionable. Id. at 340. In Aldridge, the Pennsylvania Supreme Court held that although some published materials could be considered hearsay, an expert witness may nonetheless rely upon them in the formation of his or her opinion, and it would be unreasonable to restrain an expert witness entirely from any use of a learned treatise. Id. at 333-34, 750 A.2d at 297-98. However, the Supreme Court did direct that trial courts should exercise caution and issue limiting instructions when allowing the use of learned treatises to ensure that the publications themselves did not become the focus of the examination and supersede the expert's own testimony. Id. Thus, upon a party's request, the trial court shall issue appropriate limiting instructions to ensure that the inadmissible hearsay does not come in for substantive purposes and that the treatise does not become the focus of cross. Aldridge, 750 A.2d at 297 (citing Pa.R.E. 105 (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.”)). It remains to be determined, however, “whether the appellants are entitled to a new trial, as an erroneous evidentiary ruling will generally require reversal only if it caused prejudice.” Aldridge, 750 A.2d at 298 (holding that erroneous admission of hearsay did not prejudice results of trial so as to require reversal). A trial court's failure to limit the use of treatises effectively may constitute grounds for reversal only if the issue was properly preserved at all stages of the proceedings and prejudice can be established. See Klein, 85 A.3d at 505 (Pa. Super. 2014) ( Citing Aldridge, 750 A.2d at 298, Crespo v. Hughes, 167 A.3d 168, 185–87 (Pa.Super. 2017). Here, the PA Superior Court determined that Hassel failed to identify in his Concise Statement where in the record these challenges were preserved for appeal. Moreover, the Court was unable to ascertain a place where Hassel requested that the trial court provide the jury with a limiting instruction. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all. Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super. 2000). As a result, the Court determined that Hassel had waived this issue for appeal. See Crespo, 167 A.3d at 187 (stating trial court’s alleged failure to limit properly the use of learned treatises constitutes grounds for a new trial only where a party specifically objects to the impermissible reading medical literature and requests a specific limiting instruction pertaining to the jury’s consideration of the literature). Notice Experts may testify at trial concerning matters which are within the fair scope of a pretrial report. The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert's proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report. Walsh v. Kubiak, 661 A.2d 416, 419-20 (Pa.Super. 1995). The fair scope rule is addressed in Pa.R.C.P. 4003.5(c) and provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or, as here, included in a separate report. In Wilkes–Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre, Inc., 502 A.2d 210 (Pa.Super. 1985), this Court explained that: t is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary's request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (1984) (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns– Manville Corp., 322 Pa. Super. 348, 469 A.2d 655 (1983) (“e have found experts' reports to be adequate ... when the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness.”). In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Id. at 212–13. Here, Hassel maintained that he objected to defense expert’s testimony regarding the placement of a filter to prevent a clot, which was offered in response to Hassel’s expert testimony, on the basis that the defendant’s expert’s report did not reference filters. However, the Court found that Hassel did not set forth a specific objection in this regard; and, therefore, this claim was waived in accordance with Pa. R.A.P. 302(a); Jones v. Ott, 191 A.3d 782, 787 (2018) (stating “In order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record.” Corroborative v. Cumulative Evidence Hassel argued that the trial court erred in allowing the defendants to introduce “excessively duplicative” expert testimony despite its pretrial order entered November 29, 2017, in response to Dr. Arnold’s Motion in Limine filed on November 15, 2017, precluding Hassel from offering cumulative testimony at trial. Hassel stated that in reliance upon this directive, he did not ask his expert to opine as to standard of care. Hassel argued the direct testimony of the defendant’s expert, a general clinical cardiovascular specialist, was unnecessary as the instant matter did not involve cardiology issues and other defense experts testified as to standard of care. Hassel also stated that this, along with proffered testimony of an expert internist qualified to discuss primary care medicine, on the standard of care constituted excessively cumulative and severely prejudicial testimony. Here, the Court noted that there is a subtle difference between evidence that is ‘corroborative’ and evidence that is ‘cumulative.’ In the most general sense, corroborative evidence is ‘evidence that differs from but strengthens or confirms what other evidence shows,’ while cumulative evidence is ‘additional evidence that supports a fact established by the existing evidence.’ Black's Law Dictionary. 674, 675 (10th ed. 2014).” Commonwealth v. Small, 189 A.3d 961, 972 (2018). Ultimately, the Superior Court concluded that the trial court did not abuse its discretion in finding that the challenged testimony was corroborative rather than cumulative and, therefore, proper under the terms of its pre-trial orders because each of defendant’s experts opined form the perspective of his specialty, and approached the standard of care from different clinical perspectives. Each of the experts reached the same conclusion, that aspirin was an appropriate treatment for Mrs. Hassel, and their testimony is consistent with what the Superior Court determined in Klein v. Aronchick to be corroborative testimony, not cumulative testimony. Relevancy Finally, Hassel alleged that the trial court erred in failing to permit him to cross-examine the defendant regarding his prior involvement in medical malpractice cases, and to cross-examine a defense expert regarding his relationship with defendant’s counsel. In Flenke v. Huntington, 111 A.3d 1197 (Pa.Super. 2015) the Court held that the impeachment of expert witnesses by demonstrating their partiality is permitted under Pennsylvania law. In Pennsylvania, evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” Pa.R.E. 401(a). “All relevant evidence is admissible, except as otherwise provided by law.” Pa.R.E. 402. Although relevant, evidence may be excluded “if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Moreover, he scope of cross-examination is within the sound discretion of the trial court, and appellate courts will not reverse the trial court's exercise of discretion in absence of an abuse of that discretion. Here, the Superior Court noted that every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Specifically regarding medical experts, the scope of cross-examination involving a medical expert includes reports or records which have not been admitted into evidence but which tend to refute that expert's assertion. Jacobs v. Chatwani, 922 A.2d 950 (Pa.Super. 2007). In Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, (Pa.Super. 2002), the Superior Court acknowledged that “an expert witness can be cross-examined as to any facts that tend to show partiality on the part of the expert.” Nevertheless, the Court determined that Hassel failed to establish that any error with regard to these evidentiary rulings resulted in prejudice to him which would warrant a new trial. See Yacoub, 805 A.2d at 586 (“f the basis of the request for a new trial is the trial court's rulings on evidence, then such rulings must be shown to have been not only erroneous but also harmful to the complaining party.”). Accordingly, the Superior Court affirmed the decision of the trial court.