The plaintiff was injured during surgery and sued her anesthesiologist. The trial court instructed the jury on direct and circumstantial evidence but declined the plaintiff’s request to instruct the jury on res ipsa loquitur. The jury returned a defense verdict. The plaintiff appealed and the Pennsylvania Supreme Court had to decide whether a plaintiff may proceed with direct evidence of liability and res ipsa loquitur, or whether those theories of liability are mutually exclusive. Over several prior opinions, the Superior Court alluded to a “grey zone”—circumstances in which the plaintiff has adduced less than overwhelming direct evidence, but enough to submit to a jury nonetheless—while creating a body of circumstantial evidence warranting the Instruction. Here, the Supreme Court reasoned that a plaintiff has no obligation to choose one theory of liability to the exclusion of another. Furthermore, the two theories of liability in this case were not incompatible. As such, the Supreme Court reversed the trial court’s order and remanded for a new trial.
