You’re No Expert! $6.3 Million Verdict Tossed Because Expert Testimony on Pain and Suffering had No Sufficient Basis (PA)
In Cowher et al. v. Kodali et al., the Pennsylvania Superior Court granted a retrial because of erroneously admitted expert testimony. Cowher, brought a wrongful death and survival medical malpractice claim against the doctor that failed to recognize her husband’s heart condition, which ultimately led to his fatal heart attack. Mr. Cowher went to see defendant Dr. Sobhan Kodali after he experienced persistent chest pain. Dr. Kodali conducted minimal testing and attributed Mr. Cowher’s pain to anxiety and panic attacks. Shortly thereafter, Mr. Kodali suffered a fatal heart attack.
At trial, the jury determined that Dr. Kodali was negligent. The trial judge, however, allowed plaintiff’s expert to testify that Mr. Cowher had experienced “conscious pain and suffering” during his fatal heart attack. The plaintiff’s expert’s only basis for that Mr. Cowher experienced “conscious pain and suffering” was a witness to the heart attack who testified that Mr. Cowher appeared to be in pain.
The Superior Court determined that the plaintiff’s expert’s testimony on the conscious pain and suffering—for the purpose of calculating damages—was improper expert testimony. The court reasoned that the testimony was not based on the expert’s skill or expertise; but rather, it was only based on a lay person’s observations. The expert’s testimony did not meet the requirement for expert testimony. As such, the court ordered a retrial on the issue of the portion of damages related to Mr. Cowher’s alleged pain and suffering. The court’s decision reinforces the stringent standards expert opinion is held to, and the potential for disaster if permitted to reach the jury.
Thanks to John Lang for his contribution to this article. Should you have any questions, please contact Thomas Bracken.