Pennsylvania Justice

Expert Cannot Base Pain and Suffering Opinion on Lay Testimony

Written on Monday, March 8th, 2021 by T.C. Kelly
Filed under: General

Experts offer valuable opinions during trials, but their opinions must be based on their expertise. In an unpublished decision, the Superior Court of Pennsylvania held that an expert’s opinion that a deceased man suffered before he died was inadmissible because it was based on the testimony of another witness.

Facts of the Case

James Cowher II was given an echocardiogram after experiencing chest pain. The result was normal. About nine months later, Cowher told his treating physician that episodes of chest pain, accompanied by shortness of breath, nausea, and sweating, were becoming more frequent. His physician performed an electrocardiogram and conducted another test for heart damage. The tests revealed no abnormalities.

The physician referred Cowher to a group of cardiologists. Cowher explained his symptoms to Dr. Sobhan Kodali. Dr. Kodali was aware that Cowher had a family history of heart disease, was overweight, and had high cholesterol. Dr. Kodali performed another electrocardiogram and conducted a lipid test. The results were normal. Without further investigation, Dr. Kodali attributed Cowher’s symptoms to stress.

About a month later, at the age of 48, Cowher died from heart failure while jogging. An autopsy revealed substantial blockage in two of Cowher’s arteries. The pathologist concluded that Cowher’s death was caused by severe coronary artery disease. While the pathologist identified the immediate cause of death as “cardiac arrythmia,” the coroner reported the cause of death as “acute myocardial infarction” due to severe coronary artery disease.

Expert Report

Cowher’s widow sued Dr. Kodali for wrongful death based on medical negligence. She also brought a survival claim based on Cowher’s pain and suffering prior to death. Her complaint alleged that Cowher died from an acute myocardial infarction.

Cowher retained a cardiologist as an expert witness. The cardiologist’s expert report opined that Dr. Kodali was negligent in failing to diagnose Cowher as suffering from unstable angina. The report also faulted Dr. Kodali for not recommending cardiac catheterization and other diagnostic testing that would have revealed Cowher’s severe coronary artery disease. In the expert’s opinion, that disease could have been treated successfully with coronary bypass surgery.

The expert report expressed the opinion that Cowher died from cardiac arrythmia caused by severe coronary artery disease. The defense asked the court to exclude the opinion that Cowher died from anything other than a myocardial infarction as the complaint alleged. The court denied that motion.

The expert report also expressed the opinion that Cowher suffered conscious pain before he died. The court denied a defense motion to exclude that opinion.

Expert Testimony

At trial, each side presented the testimony of expert cardiologists. The expert for Cowher’s widow testified that Cowher died from a cardiac arrhythmia caused by coronary artery blockages that prevented sufficient blood from reaching the heart. The expert also testified that Cowher was suffering from unstable angina due to those artery blockages when he was examined by Dr. Kodali.

The expert testified that Dr. Kodali breached the applicable standard of care by failing to diagnose unstable angina in response to Cowher’s symptoms and by failing to order cardiac catheterization, a procedure that would have confirmed the existence of blockages. The expert opined that the correct standard of care would have resulted in bypass surgery that would have prevented Cowher’s death. The expert also testified that Cowher suffered pain before his death.

Dr. Kodali’s expert testified that coronary artery disease could not have caused Cowher’s death because no damage to the heart muscle was found during Cowher’s autopsy. Dr. Kodali’s expert also testified that Dr. Kodali’s diagnosis of Cowher’s chest pain as having a non-cardiac origin without conducting further testing did not breach the standard of care.

The jury awarded Cowher’s widow almost $2.5 million on her wrongful death claim. It awarded another $3.8 million on her survival claim. The trial court denied post-trial motions for a new trial and entered judgment for Cowher’s widow in the full amount. Dr. Kodali appealed.

Cause of Death

Dr. Kodali first argued that Cowher’s expert did not establish that negligence caused Cowher’s death because he testified that Cowher died from cardiac arrythmia (a condition that causes cardiac arrest) while the complaint echoed the coroner’s finding that he died from a myocardial infarction (a heart attack). The appellate court concluded that Cowher’s widow merely needed to prove that negligence caused his death. She did not need to prove the precise way in which he died.

The evidence established that Dr. Kodali failed to diagnose and treat Cowher’s severe coronary heart disease. That failure caused Cowher’s death. Whether the death was caused by a cardiac arrythmia or a myocardial infarction, the result was the same. Cowher died because Dr. Kodali did not diagnose and treat the health condition that caused his heart to stop functioning as it should.

Pain and Suffering

A neighbor who saw Cowher collapse testified that she heard him say “I need help.” The neighbor said that he appeared to be in pain and was very distraught. Cowher was conscious for about three minutes after he collapsed.

The expert witness expressed the opinion that Cowher experienced pain and suffering before his death. When asked about the basis for that opinion, the expert testified that he based his opinion on the neighbor’s testimony.

Dr. Kodali argued that an expert must give opinions that go beyond lay opinions. Testifying that Cowher experienced pain, when that testimony was based on a lay witness’ observation that Cowher seemed to be in pain, was not expert testimony. The expert did not need to apply his own expertise to conclude that Cowher experienced pain.

Since the jury heard the neighbor’s testimony, it seems doubtful that the expert’s opinion affected the verdict. The expert didn’t tell the jury anything more than it already knew. In the court’s view, however, placing the imprimatur of expertise upon an opinion that someone suffered pain could have influenced the jury. The court therefore reversed the verdict on the survival claim and remanded for a new trial on that claim.

Lessons Learned

It seems likely that the expert could have given admissible expert testimony on pain and suffering. A cardiologist presumably knows that heart failure is painful. Based on his experience treating patients who suffered from a cardiac arrythmia, and perhaps on knowledge gleaned from medical texts, the expert could probably have explained why his medical expertise informed his opinion that Cowher suffered pain. If the expert had been advised in advance that he should rely on his medical expertise when expressing his opinion, a new trial could likely have been avoided.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.