Summary
indicating that, as long as a party produced his own expert to verify that the publication is authoritative in the field, an expert witness may be tested by reference to those publications
Summary of this case from Charlton v. TroyOpinion
November 15, 1974.
April 22, 1975.
Trespass action — Wrongful death — Survival action — Negligence — Psychiatric hospital administration — Alleged insufficient control over psychiatric in-patient — Expert witness — Cross-examination — Trial court properly refusing cross-examination of executive director of hospital concerning literature in the field of psychiatric nursing — Failure of plaintiff to produce experts that particular publications were standard works by authorities in field — Cross-examination — Lack of proper foundation for cross-examination.
1. In this case, the additional defendant, while an in-patient at a psychiatric hospital, walked out of the institution without being seen and went to her apartment to retrieve a gun purchased before her commitment. She then proceeded to the apartment of a former boyfriend. Upon finding him there with the plaintiff's decedent, she shot the decedent. The plaintiff, who was the administratrix of the decedent's estate, sued the psychiatric hospital in wrongful death and survival actions, and the patient was joined as an additional defendant. A verdict was entered in favor of the plaintiff and against the additional defendant and in favor of the psychiatric hospital. It was Held that judgment was properly entered on the verdict.
2. Defendant's contention that the court below erred in refusing to permit the cross-examination of the executive director of the psychiatric hospital concerning literature in the fields of psychiatric nursing and hospital practice, was Held to be without merit where the plaintiff failed to prove that the executive director was familiar with the content of any of the articles in question and failed to produce her own experts to verify that the particular publications were accepted as standard works by authorities in the field.
3. Data may not be introduced based on statements made by a person out of court and not subject to cross-examination.
4. In order to cross-examine a witness on the contents of articles it is necessary to lay a proper foundation.
5. The opinion of an expert witness may be tested by reference to standard works, or to the works of others which the witness considered in forming his opinion.
6. It is proper in cross-examination to show that an expert is unfamiliar with the literature in a particular field.
Evidence — Admission of guilty plea by additional defendant to general charge of murder — Relevancy of admission — Wrongful death — Negligence — Superseding negligence — Proximate cause of death — Jury question.
7. Plaintiff's contention that the defendant's admission into evidence of the additional defendant's guilty plea to the charge of murdering the decedent constituted prejudicial error, was Held to be without merit.
8. A relevant admission made by a party is always admissible.
9. Convictions of felonies are also admissible in a civil suit where the same issue, question, or claim is involved.
10. In order to recover in an action for wrongful death, the plaintiff must prove that the decedent's death was caused by violence or negligence and that no action was brought by the injured party during his or her lifetime.
11. The question of whether a defendant's negligence was a proximate cause of the injury is ordinarily to be decided by the fact-finder.
12. Only where the relevant facts are not in dispute and the remoteness of a causal connection between defendant's negligence and the injury clearly appears from the evidence does the question become one of law.
13. It was Held in this case whether the alleged negligence of the defendant and/or additional defendant proximately caused decedent's death did not so clearly appear from the evidence that the question could be removed from the jury.
14. A determination by a jury that the negligence of the defendant, if any, was superseded by the acts of the additional defendant will not be reversed on appeal.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 514, April T., 1974, from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 1293, in case of Kate Evanuik, Administratrix of the Estate of Darlene Dobrushin, Deceased v. University of Pittsburgh, Western Psychiatric Institute and Clinic and Karen Fishell, additional defendant. Judgment affirmed.
Trespass for wrongful death and survival action. Before WENTLEY, J.
Verdict for plaintiff against additional defendant only and motion by plaintiff for new trial dismissed, and judgment entered. Plaintiff appealed.
Daniel M. Berger, with him Berger Kapetan, for appellant.
John R. McGinley, Jr., with him Frank R. Fleming, III, Irvin Bails, and Grogan, Graffam McGinley, for appellees.
This appeal follows a jury verdict which held Karen Fishell, the additional defendant below, liable to the plaintiff in negligence. The jury exculpated appellee, University of Pittsburgh, Western Psychiatric Institute and Clinic (WPIC) of liability, finding either that WPIC was not negligent or that WPIC's negligence was not the proximate cause of the death of Darlene Dobrushin, the decedent. Post-trial motions were filed and denied by the lower court en banc.
On this appeal, appellant-administratrix of decedent's estate, Kate Evanuik, alleges two errors which she believes warrant the granting of a new trial: (1) that prejudicial error resulted when the lower court refused to permit the cross-examination of appellee's executive director concerning literature in the fields of psychiatric nursing and hospital practice, and (2) that the lower court erred in admitting into evidence Karen Fishell's guilty plea to the general charge of murder. We find these contentions to be without merit and will affirm the order of the court below.
The facts which gave rise to the instant wrongful death and survival actions were established at trial. Karen Fishell, the additional defendant below, while a patient at WPIC, walked out of the institution without being seen and went to her apartment to retrieve a gun purchased before her commitment. She then proceeded to the apartment of a former boyfriend. Upon finding him there with Darlene Dobrushin, Karen drew the revolver and shot and killed Miss Dobrushin. The administratrix of Miss Dobrushin's estate instituted this action against WPIC, which in turn joined Karen Fishell as additional defendant.
At trial, appellant contended that WPIC, through its agents and employees, had knowledge of Miss Fishell's suicidal and homicidal tendencies, and was negligent in failing to restrain her. In an effort to prove the alleged negligence of WPIC, appellant called the executive director, Harry Dorsey, as on cross-examination, and elicited information concerning WPIC's procedures and controls for confining its in-patients. Appellant's counsel asked the director whether WPIC received certain publications and relied on them to keep abreast of changes in hospital care. Mr. Dorsey indicated that several of the publications were received at the hospital and that upon occasion an article contained therein was relied upon in determining the management of WPIC. However, when presented with specific articles, Mr. Dorsey testified that he had not read the articles and was not familiar with their contents. Furthermore, Mr. Dorsey did not recognize the publications as standard works in the field of psychiatric care which are generally relied upon by experts in the field.
The publications in question included "Hospitals," the American Hospital Association's journal; "Hospital Practices;" "American Journal of Nursing," the official magazine of the American Nursing Association; and five books dealing with psychiatric nursing.
The opinion of an expert witness may be tested by reference to standard works, Cummings v. Nazareth Borough, 430 Pa. 255, 242 A.2d 460 (1968), or to the works of others which the witness considered in forming his opinion. VI Wigmore, Evidence, § 1700(b) (3d ed. 1940). It is also proper, as in the instant case, to show that an expert is unfamiliar with the literature in a particular field. Cummings v. Nazareth Borough, supra. In the instant case, however, appellant failed to prove that Mr. Dorsey was familiar with the content of any of the articles in question, and also failed to produce her own expert to verify that these particular publications are universally accepted as standard works by authorities in the field. Moreover, appellant introduced no testimony as to what information and accepted sources the authors of the articles used to compile their materials. Under these circumstances, appellant's effort to use the articles was an attempt to introduce data based on statements made by a person out of court and not subject to cross-examination. Grantham v. Goetz, 401 Pa. 349, 164 A.2d 225 (1960). Therefore, no proper foundation was laid on which to cross-examine Mr. Dorsey as to the contents of the articles.
In addition, at no time during trial was Mr. Dorsey asked whether he recognized particular regulations or standards in the field of psychiatric hospital administration or whether WPIC conformed its policies to any specified standards. Consequently, Mr. Dorsey did not express an opinion which was subject to the proposed cross-examination. For these reasons, the lower court properly refused to permit appellant's counsel to read parts of articles into the record and then to elicit Mr. Dorsey's agreement or disagreement with the contents.
It must be noted that appellant's stated purpose in questioning Mr. Dorsey as to the content of the articles was to determine "whether he relied on any of the things as set forth" therein. [NT 31a]. Mr. Dorsey could hardly have relied upon written materials of which he had no knowledge. For this reason as well, the lower court properly ruled that the cross-examination requested by appellant was improper.
Appellant's second contention, that WPIC's admission into evidence of Karen Fishell's guilty plea to the charge of murdering Darlene Dobrushin constituted prejudicial error, is likewise without merit. A relevant admission made by a party is always admissible. Lee v. Lee, 185 Pa. Super. 252, 137 A.2d 827 (1958). Likewise, convictions of felonies are also admissible in a civil suit where the same issue, question, or claim is involved. Greenberg v. Aetna Insurance Company, 427 Pa. 511, 235 A.2d 576 (1967).
The instant suit involved the issue of who was liable in damages to the estate of the decedent, based on a theory of wrongful death. In order to recover in an action for wrongful death, the plaintiff must prove that the decedent's death was caused by violence or negligence and that no action was brought by the injured party during his or her lifetime. Act of April 15, 1851, P.L. 669, § 19 (12 Pa.C.S.A. § 1601) ; Taylor's Estate, 179 Pa. 254, 36 A. 230 (1897). The admission by Karen Fishell that she shot and killed Darlene Dobrushin was relevant to the question of what caused the decedent's death, and her plea of guilty to a general charge of murder was evidence of the violent nature of the act which caused the death. Therefore, the lower court acted properly in receiving the plea into evidence in the instant suit.
Moreover, Karen Fishell was joined as additional defendant on the theory that her actions were unforeseeable to WPIC, and that they constituted an intervening and superseding force sufficient to absolve WPIC of liability to the appellee.
The Pennsylvania Supreme Court has stated that the question of whether a defendant's negligence was a proximate cause of the injury is ordinarily to be decided by the fact-finder. Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957); Nirdlinger v. American District Telegraph Company, 245 Pa. 453, 91 A. 883 (1914). Only where the relevant facts are not in dispute and the remoteness of a causal connection between defendant's negligence and the injury clearly appears from the evidence does the question become one of law. Kite v. Jones, supra. In the instant case, whether the alleged negligence of WPIC and/or Karen Fishell proximately caused decedent's death did not so clearly appear from the evidence that the question could be removed from the jury. The jury decided that WPIC's negligence, if any, was superseded by Karen Fishell's acts. This determination will not be reversed on appeal. Cf. Landis v. Conestoga Transportation Company, 349 Pa. 97, 36 A.2d 465 (1944).
Judgment affirmed.