Before BIGGS, Chief Judge, and STALEY and HASTIE, Circuit Judges.
Two interrelated questions are raised by the plaintiff-appellant in this malpractice suit: (1) whether there was any vital inconsistency in the expert medical testimony he proffered in support of an essential element of his claim, and (2) assuming there was such inconsistency, was the district court justified in granting defendant's motion for involuntary dismissal under Federal Rule of Civil Procedure 41(b), 28 U.S.C.
This is a diversity case in which all the action, except the trial, took place in Wichita, Kansas. At the time of the incidents involved, the defendant, Dr. Clayton L. Scuka, lived and practiced medicine in Wichita, but he has since removed to the Philadelphia area and presently resides in Havertown, Pennsylvania.
The case was tried, for the most part, on depositions; the only live witnesses besides the plaintiff and his wife were two physicians called to give expert testimony. Following the presentation of plaintiff's case, the court dismissed the action on defendant's motion and later denied a motion to set aside the judgment of involuntary dismissal and for a new trial.*fn1
The plaintiff, Kenneth V. Dill, was employed as a service specialist or troubleshooter for a Wichita gas company. While waiting in his office during the midnight shift, he had fallen asleep on a chair with his feet on his desk. Upon awakening he experienced pain in his left leg, in the region of the calf. He consulted defendant who hospitalized him on March 9, 1954. The pain was diagnosed as resulting from a blood clot, and while under treatment at the hospital plaintiff suffered two embolisms in the chest, which disappeared after treatment. During the period of hospitalization the plaintiff was administered anticoagulants in order to control the blood clotting.
To further diagnose the cause of the blood clotting, defendant requested that the staff urologist, Dr. Miles, who had previously performed over 300 aortograms,*fn2 perform one on the plaintiff. Plaintiff consented to the procedure and discussed it at various times with both doctors. Dr. Miles examined the patient, checked his prothrombin time*fn3 and decided to proceed with the aortogram. Following administration of anesthesia, Dr. Miles attempted to inject dye into the aorta; however, he was not satisfied with the nature of the blood which appeared in the needle and discontinued the procedure. The patient had been apprised of the fact that Dr. Miles and not Dr. Scuka would perform the aortogram and that the latter would not be present.
In the week following the attempted aortogram, plaintiff suffered great pain and thrashed about in his bed. The nerve functions in his lower extremities deteriorated, and he lost control of his legs from the hips down. In addition, he was unable to urinate and have normal bowel movements and lost the ability to copulate. His condition was described as "flaccid paralysis." Plaintiff contends his present condition results from the attempted aortogram and that the defendant was negligent in ordering this procedure under the circumstances. He additionally contends the defendant was negligent in failing to perform a laminectomy to relieve the condition resulting from the aortogram.
This being a case in the federal courts solely by virtue of diversity of citizenship, the court applies state law and takes its law from the authoritative decisions of the forum, including conflict-of-law rules. Since all the operative facts took place in Kansas, Pennsylvania law refers to Kansas, the place of wrong, for the legal effect to be given them. Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 1948, 166 F.2d 908, certiorari denied 1948, 334 U.S. 846, 68 S. Ct. 1516, 92 L. Ed. 1770, and Pennsylvania cases collected therein at footnote 3, page 910 of 166 F.2d. It is equally well settled that the application of Pennsylvania conflict-of-law rules determining whether a given question is to be characterized as substantive, with reference to the foreign law, or procedural, where the reference will be to the law of the forum, controls us here. Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 910. Thus, in regard to whether a right of action exists, Pennsylvania law calls for a referral to that of Kansas; however, as to the sufficiency of the evidence, a Pennsylvania court, heeding the Pennsylvania case of Sudol v. Gorga, 1943, 346 Pa. 463, 31 A.2d 119, would apply the law of the forum.
The appellant notes that in determining the sufficiency of the evidence, we held "the federal court in a diversity case should follow the state's rule." Moran v. Pittsburgh-Des Moines Steel Co., supra, 166 F.2d at page 917.*fn4 However, he contends, in effect, that this was an unwarranted extension of the doctrine set forth in Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, inasmuch as even that doctrine is subservient to the right to jury trial under the Seventh Amendment to the Constitution of the United States. In support of this proposition, appellant relies upon Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S. Ct. 383, 75 L. Ed. 857, a case decided before Erie Railroad Co. v. Tompkins but recently given new life by its citation in Byrd v. Blue Ridge Rural Electric Cooperative, Inc, 1958, 356 U.S. 525, 538, 78 S. Ct. 893, 2 L. Ed. 2d 953. In addition, appellant cites Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 79 S. Ct. 921, 3 L. Ed. 2d 935, and Magenau v. Aetna Freight Lines, Inc., 1959, 360 U.S. 273, 79 S. Ct. 1184, 3 L. Ed. 2d 1224. None of these cases directly rule upon this issue, nor does appellant claim that they do, but rather they indicate a conflict in the circuits that will be reviewed by the Supreme Court when the point is appropriately raised. Dick v. New York Life Ins. Co., supra, 359 U.S. at page 445, 79 S. Ct. at page 926.
This case, however, does not require us to review our holding in Moran v. Pittsburgh-Des Moines Steel Co., supra, for we are of the opinion that the federal rule as to the sufficiency of the evidence would be exactly the same as the Pennsylvania rule. The Pennsylvania rule on expert witnesses was clearly stated by Chief Justice Moschzisker in Mudano v. Philadelphia Rapid Transit Co., 1927, 289 Pa. 51, 61, 137 A. 104, 107-108:
"* * * Moreover, we do not mean, by anything said in this opinion, to intimate that, whenever a litigant calls experts and they disagree, this necessarily destroys his case on the particular point of disagreement; what we do mean is that, when plaintiff has the burden of proof on an issue of fact which goes to the essence of any material part of his case, and he selects scientific experts to speak for him, because the point at issue can be solved only in that way, such experts are peculiarly his mouthpiece, - they take his place and, so far as the rule laid down in the line of cases first mentioned in this opinion is concerned, may be viewed as though they collectively were the plaintiff himself. If, after being equally accredited by plaintiff, witnesses of the character just described so vitally disagree on essential points as to neutralize each other's opinion evidence, their sponsor has not borne the burden of proof which the law casts upon him, and to that extent has failed to make out his case, - though, in our opinion, minor points of difference between such witnesses should not be thus viewed."
In accord: Menarde v. Philadelphia Transportation Co., 1954, 376 Pa. 497, 103 A.2d 681.
In analyzing the expert testimony offered by the plaintiff's medical witnesses we have, for the purposes of the abovestated rule, ignored the testimony of Dr. Miles, the specialist who performed the aortogram. We agree with the appellant that Dr. Miles was a necessary witness and that he should not be bound by all of Miles' testimony, for he was indeed a borderline hostile witness.*fn5 As we stated in Johnson v. Baltimore & Ohio ...