CHRISTINA ALFREY JEFFREY FAY v. KARI WHITLEY (2024)

ORDER

Now before the court is a motion in limine by Wayne Memorial Hospital to preclude the plaintiffs from offering opinions or testimony regarding the conscious pain and suffering experienced by L.A.F. prior to his passing on December 6, 2019. Doc. 191; see also Doc. 192; Doc. 221.

The plaintiffs have asserted survival claims on behalf of L.A.F.'s estate. Relying on a state appellate decision, Cominsky v. Donovan, 846 A.2d 1256, 1260 (Pa. Super. Ct. 2004), the hospital contends that the question of whether L.A.F. was capable of experiencing conscious pain and suffering after his birth requires expert testimony. The hospital notes that none of the expert reports disclosed by the plaintiffs address the conscious pain and suffering of L.A.F., and thus it seeks an order in limine precluding the introduction of any such opinion or testimony at trial.

The hospital, however, reads the Cominsky holding far too broadly. In Cominsky, the Superior Court held that “in order to make a case for pain and suffering damages on behalf of a person in a persistent vegetative state, the plaintiff must present competent [expert] opinion testimony that the person could in fact experience such pain.” Id. (emphasis added). But the Cominsky court expressly distinguished other cases in which “a lay witness was permitted to testify about the pain of a conscious person, or one who is not in a persistent vegetative state.” Id. (emphasis in original).

There is nothing whatsoever in the record before us to suggest that L.A.F. was in a persistent vegetative state in the brief period between his birth and death. In the absence of any such evidence, we find no basis to preclude otherwise admissible fact or lay opinion testimony by witnesses who personally observed the infant's condition prior to his death.

Accordingly, IT IS HEREBY ORDERED THAT the hospital's motion in limine to preclude the plaintiffs from offering opinions or testimony regarding the conscious pain and suffering experienced by L.A.F. prior to his passing (Doc. 191) is DENIED.

JOSEPH F. SAPORITO, JR. Chief United States Magistrate Judge