Professional Negligence Law Reporter

A federal district court held that plaintiffs may offer lay opinions or factual testimony regarding their deceased infant’s conscious pain and suffering before his death.

The parents of a deceased newborn infant sued a hospital, alleging that negligent prenatal and postnatal care led to their baby’s death. The defendant brought a motion in limine to preclude introduction of opinions or trial testimony regarding the baby’s conscious pain and suffering. The defense argued that none of the expert reports the plaintiffs disclosed addressed the baby’s conscious pain and suffering and that lay opinion or testimony should be precluded at trial.

Denying the motion, the district court noted that under relevant case law, a lay witness is permitted to testify about the pain of a conscious person or one who is not in a persistent vegetative state. Finding that nothing in the record indicates the baby was in a persistent vegetative state during his brief life, there is no basis to preclude otherwise admissible fact or lay opinion testimony by a witness who personally observed the baby’s condition before his death.

Citation: Alfrey v. Whitley, 2024 WL 3811456 (M.D. Pa. July 31, 2024).

Plaintiff counsel: David J. Selingo and Schawn-Paul Rotella, both of Kingston, Pa.; and Joseph M. Cosgrove, Wilkes-Barre, Pa.