- My Chiropractor Is Under Indictment. Can I Still Waive His Testimony?
- December 21, 2009
- Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Bethlehem Office
Rule 1311.1 of the Pennsylvania Rules of Civil Procedure permits plaintiffs, in cases on appeal from compulsory arbitration, to introduce as evidence certain records - including medical bills and records of treatment - into evidence without testimonial authentication. This exception to the Rules of Evidence is premised upon two conditions: (1) that the plaintiff stipulate that the value of his claim will not exceed a statutory limit (now $25,000); and (2) that the defendant has the opportunity to subpoena the person whose testimony is otherwise waived to attend the trial and be questioned as an adverse witness. The Rule tracks Rule 1305 governing arbitration hearings, under which the plaintiff can admit certain documents without documentary authentication pursuant to the Rules of Evidence.
In Gaston v. Minhas, 938 A.2d 453 (Pa Super 2007), the Pennsylvania Superior Court was asked to determine whether or not certain documentary evidence, offered as evidence by the plaintiff pursuant to the terms of Rule 1311.1, must be excluded when the power of subpoena, granted by subsection (d), is terminated by a witness's refusal to testify.
Pierre Gaston was stopped at a stop sign on December 29, 2002, when his vehicle was struck by two other vehicles, one driven by the appellant, Saleem Minhas. Following the accident, Gaston received medical treatment from Dr. Steven R. Schopick, M.D., a neurosurgeon, and Dr. Richard J. Walinsky, a chiropractor. In September 2004, Gaston filed suit against Minhas and John Pascal, the other driver involved in this accident. On September 13, 2005, an arbitration panel awarded the plaintiff $10,000. Minhas appealed this finding to the Philadelphia County Court of Common Pleas.
Following the appeal to the Court of Common Pleas, Gaston filed a stipulation, in accordance with the provisions of Rule 1311.1, agreeing to limit his damages to $15,000 (the Rule was amended in 2006 to raise the limit to $25,000). Gaston subsequently provided notice to the defendants that he intended to offer medical records, including the discharge statement and treatment notes of Dr. Walinsky, into evidence without live testimony. In response, Minhas subpoenaed Dr. Walinsky to appear live at the trial of the matter. In March 2006, at the trial, Dr. Walinsky appeared pursuant to the subpoena but refused to testify regarding the treatment rendered to Gaston, citing his rights under the Fifth Amendment to the United States Constitution (Dr. Walinsky, at the time, was under indictment for, among other things, insurance fraud related to his practice). Over Minhas' objection, the trial court permitted the medical records of Dr. Walinsky to be received as evidence, and Gaston was subsequently awarded $50,000 by the jury (which was later molded to $15,000 pursuant to the 1311.1 stipulation signed by Gaston).
In ruling that the trial court erred in permitting the introduction of Dr. Walinsky's medical records into evidence, the Superior Court relied upon the explanatory comments to Rule 1305 for guidance.
The ... provisions of [Rule 1305] apply, of course, only to documents which are prepared by a person who is within the subpoena power of the court in which the action is pending. The special relaxation of the rules of evidence is conditioned upon the power of the opponent to subpoena the person whose testimony is waived; if that is not possible, for territorial or other reasons, the foundation for the special rule disappears, and the proponent must follow the normal rules of evidence.
The Superior Court, guided by this comment to Rule 1305, concluded that "the notion that the foundation for Rule 1305, and by extension, Rule 1311.1, disappears when it is impossible to subpoena the person whose testimony is waived applies equally to instances where the subpoenaed witness cannot or will not testify about the document being offered into evidence under these rules." Accordingly, the Superior Court reversed the judgment entered in the Court of Common Pleas and remanded the matter for a new trial on damages only, since the issue of liability had not been contested on appeal.