Kramer D. Arnold, Administrator of the Estate of Howard A. Brown, Deceased v. Emily F. Loose, of the Estate of Warren L. Loose, Deceased

STALEY, Circuit Judge.

The administrator of the estate of Howard Brown brought an action under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act against the executrix of the Estate of Warren Loose as the result of an automobile accident in Reading, Pennsylvania, in which both Brown and Loose were killed. The case was tried to a jury in the United States District Court for the Eastern District of Pennsylvania in March, 1964. The verdict was for the plaintiff in the Wrongful Death Action in the amount of $25,000 and in the Survival Action in the amount of $17,400. Because of the inadequacy of the verdict, plaintiff moved for a new trial solely on the issue of damages. This motion was granted, the case was retried in September, 1964, and a judgment for plaintiff was entered in the amount of $30,900 in the Death Action and $78,000 in the Survival Action. After a motion for a new trial was denied, defendant took this appeal alleging that the trial judge committed several errors. For the reasons hereinafter stated we affirm the judgment of the District Court.

The uncontroverted facts concerning the accident are these. Shortly after 3:00 PM on June 22, 1960, Loose was driving his Ford Thunderbird automobile in a westerly direction on a four-lane highway known as the Warren Street By-Pass. At the same time Brown, driving his pickup truck, was proceeding east on the same highway. At the end of a gradual curve to the left Loose’s car went off the road on to the north shoulder of the highway for a distance of 163 feet, struck a washout on the shoulder and returned to the highway, crossing it at a 45-degree angle. The car then jumped the medial strip dividing the four lanes and collided with Brown’s truck in the extreme right lane on the eastbound side. Brown was killed instantly. Loose died twelve hours later. There were several witnesses to the accident. One estimated that Loose was traveling 70 miles per hour while off on the shoulder of the road. Another witness testified that after the collision Brown’s truck speedometer was stuck with the needle pointing to 50 miles per hour, which was the lawful speed limit on the highway where the accident occurred.

Appellant first contends that the trial judge erred in striking the testimony of Dr. Yund, an orthopedic surgeon, who was called as an expert witness for the defendant. Dr. Yund had treated Loose in the hospital emergency room shortly after the accident. It was Dr. Yund’s testimony that, in his opinion, Loose had lapsed into a diabetic coma, causing the accident. This testimony was stricken because Dr. Yund showed no experience, knowledge or background that would qualify him sufficiently to formulate such a judgment in this particular field.

While it is the law in Pennsylvania that a physician, testifying as an expert, should not be barred from testifying merely because he is not a specialist in the field about which he is rendering an opinion, Taylor v. Monongahela Railway Co., 155 F.Supp. 601, 605 (W.D.Pa.1957), Pennsylvania has not thereby opened the door to such an extent that any doctor can testify about any medical subject without limitation. See Pierkowskie v. New York Life Insurance Co., 147 F.2d 928, 933 (C.A.3, 1945); Sleek v. J. C. Penney Co., 208 F.Supp.207, 216 (W.D.Pa.1962), affirmed, 324 F.2d 467 (C.A.3, 1963); Gottlob v. Hillegas, 195 Pa.Super. 453, 171 A.2d 868, 872 (1961). On the contrary, the attorney who presents a medical expert has the initial burden of establishing his qualifications to render an opinion in a particular field. The trial judge must then make an estimation of the qualifications and a determination of competence. Pierkowskie v. New York Life Insurance Co., supra, 147 F.2d at 934.

An expert is competent to express an opinion if he has a “reasonable pretension to specialized knowledge on the subject under investigation.” DeMarco v. Frommyer Brick Co., 203 Pa.Super. 486, 201 A.2d 234, 236 (1964). He must show at least a general familiarity with the field or that he has had some opportunity or means of acquiring special knowledge or experience with reference to the particular question. 1 Henry, Pennsylvania Evidence, § 563 For example, in' the Hillegas case, supra, an expert on peripheral vascular diseases could not render an opinion as to the causal connection of injuries sustained in an accident and the victim's heart condition because the expert admitted he was not qualified to talk about the heart itself. Similarly, in Sleek, supra, a medical doctor was not found competent to testify as to whether hepatitis was related to a patient’s trauma, since he did not even know the origin of hepatitis.

What we said in Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 (C.A.3, 1951) is well worth repeating here: “The qualification of an expert is a matter peculiarly within the discretion of the trial judge. It has been reiterated time and again that an appellate court will reverse on this ground only when the decision of the trial judge is clearly erroneous.”¹ We have reviewed the record carefully and we conclude that the trial judge did not exceed his discretion. The record shows that when Dr. Yund was called to testify, plaintiff’s attorney asked for an offer of proof.- The justification offered by the defense for calling Dr. Yund was that he would render this startling opinion as to the cause of the accident. His testimony as it related to the accident was allowed subject only to proof of his qualifications. Thus, the crux of Dr. Yund’s testimony was that Loose suffered a diabetic coma before he ran off the road which set off the chain of events that resulted in the collision. The purpose of this, of course, was to exonerate Loose of liability for the death of Brown. Therefore, since Dr. Yund’s testimony was relevant only as it related to the cause of the accident, the pivotal determination made by the trial judge, with which we agree, was that Dr. Yund lacked the expertise to say diabetic coma caused the accident²

Dr. Yund’s qualifications revealed no special knowledge in the field of diabetes. By his own admission he had never read any text on diabetes or diabetic comas. He did not know who who was the leading authority on diabetes nor which was the leading treatise. His field of specialization was, in fact, orthopedics. Whether Dr. Yund believed himself qualified is of no significance. The trial judge was clearly within his discretion and we find no error.

One more point must be made in regard to Dr. Yund’s opinion. His diagnosis that Loose was in a diabetic coma while being treated in the emergency room was admittedly conjecture on his part, for he had not eliminated the massive brain injury as a possible cause for Loose’s comatose state.³ Pennsylvania law is clear that an expert’s opinion may not be based on guess or conjecture. Murray v. Siegal, 413 Pa. 23, 195 A.2d 790, 794 (1963). It is obvious that whether or not Loose entered a comatose state subsequent to the accident had no bearing on the question of his negligence.

Appellant would further have us believe that the lower court erred by not giving Mr. Cottom, counsel for the defendant, an opportunity to rehabilitate Dr. Yund after his testimony was stricken. It is impossible to reach such a conclusion from the record. The following colloquy pertaining to this contention bears this out:

“The Court: I will grant the motion. The doctor’s testimony is stricken and will not be considered by the jury.

Mr. Cottom: That is all. Thank you, Doctor.”

Even assuming, arguendo, that Dr. Yund was qualified to express an opinion, the basis of an opinion should rest not only on the facts of record, Murray v. Siegal, supra 195 A.2d at 793, but also without the omission of material facts necessary to form an intelligent opinion. Karavas v. Poulos, 381 Pa. 358, 113 A.2d 300, 304 (1955). The failure of both these prerequisites is clear in this case. Dr. Yund admitted that he based his opinion in part on medical history given to him. This history was not evidence of record. Dr. Yund also admitted that he was totally unaware of Loose’s high blood sugar condition that was treated ten years before the accident. He was unaware that it had been diagnosed as the result of an infection and not as diabetes. This is clearly a material fact for Dr. Yund’s opinion was based in part on the fact that Loose had high blood sugar when he was brought to the hospital subsequent to the accident. Furthermore, Dr. Yund admitted that he did not know that Loose had attempted to lift himself up two or three times while in his car after the collision.⁴ This undisputed evidence was vital to the. question posed to Dr. Yund and necessary to enable him to arrive at an intelligent conclusion. It is particularly important where a jury is likely to be confused. Karavas v. Poulos, supra.

The next two assignments of error may be disposed of briefly. Appellant contends that the question of contributory negligence should have been left to the jury. The trial judge found that there was not “the slightest scintilla of evidence” of any contributory negligence and therefore he properly charged it out of the case. Morran v. Pennsylvania Railroad Co., 321 F.2d 402, 404 (C.A.3, 1963). Our review of the record reaffirms this finding. In addition, no objection was made to the judge’s charge although there was full opportunity to do so. Failure by counsel to object to an instruction before the jury retires precludes counsel from assigning error to the instruction. Rule 51, Federal Rules of Civil Procedure.

Appellant further contends that the grant of the second trial limited to the issue of damages was error because there was evidence in the first trial of contributory negligence that the jury in the second trial should have considered. We have already ruled, however, that there was no eror in charging the question of contributory negligence out of the case. A second trial limited to the question of damages is proper where damages in the first trial were not fairly assessed and the question of negligence is clear. Darbrow v. McDade, 255 F.2d 610, 611 (C.A.3, 1958).

The next contention for our consideration is that the trial judge failed to adequately charge the jury that the amount awarded in the Wrongful Death Action for the loss to the widow and child of Brown should be deducted, along with decedent Brown’s own maintenance, in computing the recovery under the Survival Act. It is clear to us that no objection to the charge was made by counsel for the defendant despite his allegation that the charge was obviously erroneous. The record plainly reveals that every opportunity was given to raise objections and to offer corrections to the charge. A second opportunity to object arose when the jury returned with a specific inquiry on this very element of the charge. This court has consistently held in applying Rule 51, Federal Rules of Civil Procedure, that error cannot be predicated upon an instruction to which no objection was taken and no opportunity thereby given the court to reconsider its language. Sowizral v. Hughes, 333 F.2d 829, 834 (C.A.3, 1964); Brown v. Pennsylvania Railroad Co., 282 F.2d 522 (C.A.3, 1960), cert. denied, 365 U.S. 818, 81 S.Ct. 690, 5 L.Ed.2d 696.

Again assuming, arguendo, that timely objection had been made to the charge, we fail to find error. The trial judge first charged the jury as to the damages recoverable in the Death Action. No objection is raised here as to this instruction, as it is plainly correct. In his charge as to the recovery under the Survival Act, the judge emphasized that damages recoverable here were for the present worth of decedent’s likely earnings for the period of his life expectancy and that they were to be reduced by the decedent’s own cost of maintenance. He further stressed that the two figures arrived at must come from a common fund and that compensation for loss of earnings could not be duplicated. The jury was cautioned that the two figures taken together could not amount to more than Brown would earn in a lifetime. It would seem to us that although the charge was not the epitome of clarity, it sufficiently instructed the jury that the amount of damages recoverable in the Survival Action could not include provisions Brown would have made for his widow and child for this would be more than he would earn in a lifetime if the two figures are taken together. See Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657, 660 (1964).

Finally, Appellant contends that the verdict in the Survival Action upon re-trial was grossly excessive due to the alleged error made in the charge. The recovery in the Survival Action at the first trial was $17,400. The re-trial produced a verdict of $78,000. In a Survival Action where the loss of earning power is measured, many factors are considered. In addition to his salary, which was approximately $8,000 per year at the time of his death, Brown also owned a 35-acre farm where he grew vegetables and raised farm animals. He worked many hours of overtime in his position as a trained metals tester and he made valuable improvements on his farm. He was in excellent health and was known for his frugality. He was forty-nine years of age at the time of his death and he could have continued working to age seventy. Considering all these factors, we cannot say that the trial judge abused his discretion in failing to find the verdict excessive. Gullborg v. Rizzo, 331 F.2d 557, 561 (C.A.3, 1964); Darbrow v. McDade, supra. The judgment of the district court will be affirmed.

1 . Wigmore goes so far as to state that the qualifications of an expert should be left entirely within the discretion of the tria! judge, and his discretion should never be disturbed. 2 Wigmore Evidence, § 561 (3rd Ed.).

2 . It is interesting to note that no less than six doctors, including a specialist in internal medicine and a pathologist, examined Loose in the emergency room and the record does not indicate that any of them reached the same conclusion as Dr. Yund as to the cause of the accident.

3 . The record indicates that among the injuries Loose suffered •was a massive brain injury.

4 . Coma is defined as “a state of complete loss of consciousness from which the patient cannot he aroused even by the most powerful stimulation.” Dorland, The American Illustrated Medical Dictionary. (22nd Ed.).