KNOX et al v. BOZORGI et al

Filing 199

ORDER-MEMORANDUM granting in part and denying in part 163 Motion to limit the testimony of Mark Colella, M.D. and Carl Fuhrman, M.D. Signed by Judge Mark A. Kearney on 12/16/2016. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

HARVEY T. KNOX, Individually and as
Executor of the Estate of Julie Knox

v.

NO.

15-70

FASHID BOZORGI, M.D.,
FOUNDATION RADIOLOGY GROUP,
P.C. t/d/b/a FOUNDATION
RADIOLOGY GROUP, FOUNDATION
RADIOLOGY GROUP, INC. t/d/b/a
FOUNDATION RADIOLOGY GROUP,
NANNETTE L. MCCULLOUGH, M.D.,
UPMC EMERGENCY MEDICINE,
INC. t/d/b/a EMERGENCY RESOURCE
MANAGEMENT, INC., PHYSICIANS'
TELERADIOLOGY, S.C., and UNITED
STATES OF AMERICA

ORDER-MEMORANDUM
AND NOW, this 161h day of December 2016, upon consideration of Defendants Nannette
McCullough, M.D., and UPMC Emergency Medicine, Inc. 's Motion to limit the testimony of
Mark Colella, M.D. and Carl Fuhrman, M.D. (ECF Doc. No. 163), and Plaintiffs response (ECF
Doc. No. 187), it is ORDERED Defendants' Motion (ECF Doc. No. 163) is GRANTED in part
and DENIED in part as Drs. Colella and Fuhrman's opinions are limited to the standard of care
for a radiology physician, and no party shall present cumulative evidence.

Analysis
A. Drs. Colella and Fuhrman may opine as to a radiologist standard of care.
Under the Medical Care Availability and Reduction of Error ("MCARE") Act, 40 P.S. §§
1303.101 et seq., an individual is not competent to offer an expert medical opinion on the
standard of care in a medical professional liability action against a physician unless the

individual: (1) is substantially familiar with the standard of care; (2) practices in the same
subspecialty as the defendant physician or in a subspecialty which has a substantially similar
standard of care; and, (3) is certified by the same or similar board. 1 We may waive the same
specialty and board requirements if we find "the expert possesses 'sufficient training, experience
and knowledge' to testify as to standard of care 'as a result of active involvement in ... medicine
in the applicable subspecialty or a related field of medicine. "' 2 Co-Defendant's expert Carl R.
Fuhrman, M.D. and Plaintiffs expert Mark S. Colella, M.D. are board certified in radiology and
neither party attempts to demonstrate its expert has sufficient training, experience, and
knowledge to testify as to the standard of care of internal or emergency physicians as a result of
active involvement in the applicable subspecialty or a related field of medicine.

We limit the

testimony of Dr. Fuhrman and Dr. Colella to the standard of care of radiology and limit it against
defendant radiologists.
B.

We will not allow cumulative evidence.

No party shall present cumulative evidence.

To the extent Defendants seek to preclude

cumulative evidence, we will not permit the same expert opinion as to the radiology standard of
care to be presented twice, albeit proffered by different parties.
C.

Dr. Fuhrman can opine as to Dr. McCullough's standard of care on radiology.

Defendants also argue, "Dr. Fuhrman should be precluded from offering testimony
regarding whether Dr. McCullough met the standard of care for the additional reason that

Vicari v. Spiegel, 989 A.2d 1277, 1281 (Pa. 2010) (citing 40 P.S. § 1303.512).
2

Vicari, 989 A.2d at 1283 (quoting 40 P.S. § 1303.512(e)).
2

co-defendants have not asserted a cross-claim against Dr. McCullough. 3

Rettger is not dispositive.

The Federal Rules of Evidence apply.

We deny this request.

In Rettger, the Pennsylvania

Superior Court explained a party cannot invoke the opposing party statement exception to
Pennsylvania's evidence rule prohibiting hearsay against a co-defendant whom a counterclaim
has not been filed.

Co-defendant's expert testimony by Dr. Fuhrman is not in the form of an

opposing party statement seeking exception to the rule against hearsay.
D. Dr. Cooperstein's earlier opinion does not prejudice Dr. Colella's testimony.

Defendants also request us to bar the testimony of Ms. Knox's expert Dr. Colella because
his expert report reaches a different opinion than Ms. Knox's first radiology expert, Lawrence
Cooperstein, M.D.

Dr. Cooperstein's report was not critical of Dr. McCullough and did not

address the standard of care for an emergency medicine physician.

Dr. Cooperstein later

accepted employment with one of the co-defendants, Foundational Radiology Group, and could
no longer serve as Ms. Knox's expert.

We deny Defendants' request because they do not allege

nor establish they are prejudiced by Dr. Colella's testimony regarding Dr. McCullough outside
the scope of Dr. Cooperstein's testimony. 4

3 See Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010) (precluding a defendant from

introducing evidence critical of a co-defendant without first asserting a cross-claim against the
defendant)."
4

See Fed. R. Evid. 702; Bryson v. Diocese of Camden, NJ, 2013 WL 3956360, at *1 (D.N.J.
July 26, 2013) (finding a party was prejudiced by an untimely submission of a second expert
report outside the scope of the first expert report and taking steps to cure the prejudice rather
than bar the second expert report).
3