2007 Pa. Super. 102 - Jacobs v. Chatwani

¶1CONCURRING STATEMENT BY

McEWEN, P.J.E.:

¶2¶ 1 Since the author of the majority Opinion has, in his usual fashion, undertaken so careful an analysis and provided so perceptive a rationale in support of the ruling to affirm the judgment entered by the trial court, I hasten to join in the Opinion.

¶3¶2 I write separately, however, to observe that the Pennsylvania Supreme Court has not yet addressed the principle of law announced by this Court in Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987),5 namely, that a defense medical expert can offer opinion testimony without having that testimony subjected to the condition precedent that such opinion be founded upon a reasonable degree of medical certainty. I proceed to this observation since it strikes me that to enforce this threshold condition to the presentation of retained experts for plaintiffs, while relieving defense experts of compliance with that same restriction, establishes a double standard that runs contrary to the core values of American jurisprudence.

¶4¶ 3 However, since the view expressed by the majority is well supported by current jurisprudence,61 join therein.

¶5. It merits emphasis that Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987), presented a somewhat unusual factual situation given that the doctor defendant was also the putative expert testifying in his own defense.

¶6. See also: Erkens v. Tredennick, 353 Pa.Super. 236, 509 A.2d 424 (1986), appeal dismissed, 516 Pa. 1, 531 A.2d 778 (1987); Smickv. City of Philadelphia, 161 Pa.CmwIth. 622, 638 A.2d 287 (1994), appeal denied, 539 Pa. 660, 651 A.2d 546 (1994).