Nissley v. Pennsylvania Railroad ( 1969 )

Concurring Opinion by

Mr. Chief Justice Bell:

I concur in the grant of a new trial although I do not agree with everything which is said in the majority Opinion. Moreover, I believe that Rule 4011(d), which provides that a party must give (when requested) the other party “information as to the identity or whereabouts of witnesses,” should be amended (1) by changing the “or” to “and,” and (2) by adding “and the names and whereabouts of every expert who was consulted.”

However, I would grant a new trial for an additional and more important reason. Plaintiff’s two experts and defendant’s one expert gave (as often happens) completely different opinions on the crucial question of causation, namely, whether the trauma, which resulted from decedent twisting his hack when he stumbled, either caused or triggered the leukemia Avhich resulted in decedent’s death. However, the testimony of plaintiff’s experts to prove causation, while technically meeting the standard of proof laid down in Smith v. German, 434 Pa. 47, 253 A. 2d 107, Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A. 2d 445, and Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A. 2d 681, was so exceptionally weak and unsupported by any medical authorities that (a) a new trial should undoubtedly be given in the interest of Justice: Clewell v. Pummer, 388 Pa. 592, 599, 131 A. 2d 375, and (b) the denial of a neAV trial was a clear and palpable abuse of discretion: Tomasek v. Monongahela Rwy. Co., 427 Pa. 371, 235 A. 2d 359.

For each of these reasons, I would grant a new trial.