Hassel, R. v. Franzi, J. ( 2019 )

J-A07033-19
2019 PA Super 109ROBERT HASSEL, BOTH : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND IN HIS CAPACITY : PENNSYLVANIA
AS ADMINISTRATOR OF THE ESTATE :
OF MARY HASSEL, DECEASED :
:
Appellant :
:
:
v. : No. 311 EDA 2018
:
:
JOSEPH J. FRANZI, MD, PHD: :
FRANKFORD AVENUE FAMILY :
PRACTICE, P.C., D/B/A FRANKFORD :
AVENUE FAMILY PRACTICE WILLIAM :
V. ARNOLD, MD, PHD :
RECONSTRUCTIVE ORTHOPAEDIC :
ASSOCIATES, LL, P.C. D/B/A/ THE :
ROTHMAN INSTITUTE :
Appeal from the Judgment Entered February 16, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): June Term, 2015 No. 2044
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED APRIL 08, 2019
Appellant in this medical malpractice case Robert Hassel, both
individually and in his capacity as administrator of the estate of Mary Hassel,
deceased (hereinafter “Appellant”) appeals from the judgment entered in the
Court of Common Pleas of Philadelphia County on February 16, 2018, in favor
of Appellees Joseph J. Franzi, M.D., Ph.D. and Frankford Avenue Family
Practice, P.C., D/B/A/ Frankford Avenue Family Practice (hereinafter “Dr.
Franzi”) and William V. Arnold, M.D., Ph.D. and Reconstructive Orthopaedic
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07033-19
Associates, II, P.C. D/B/A the Rothman Institute (hereinafter “Dr. Arnold”)
(hereinafter collectively “Appellees”). Following a careful review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
I. Procedural History
This appeal arises out of a medical malpractice jury trial, in
which, at the conclusion of trial, the jury rendered a verdict in
favor of [Appellees]. The jury found that Dr. Franzi was negligent,
but that his negligence was not a factual cause of the harm visited
upon the decedent Mary Hassel. The jury also found that Dr.
Arnold was not negligent. [Appellant] now appeals the jury's
verdict.
In this case, [Appellant’s] negligence claim alleged that
treatment rendered by Dr. Franzi, a family physician, and Dr.
Arnold, an orthopedic surgeon, fell below the standard of care for
the treatment and prevention of Deep Vein Thrombosis ("herein
DVT") and Pulmonary Embolism. Specifically, [Appellant] alleged
that Dr. Arnold failed to ensure that Mrs. Hassel was prescribed
appropriate medication to prevent blot clots. Because of her risk
factors for DVT, [Appellant] argued that Mrs. Hassel should have
been prescribed an anticoagulant drug like coumadin, instead of
aspirin, which is an antiplatelet drug. Dr. Franzi, her primary care
physician, was accused of prescribing the wrong medication and
failing to return voicemail messages from Mrs. Hassel's husband
on the day she died, which [Appellant] alleged described
symptoms of DVT that Dr. Franzi should have recognized.
[Appellant] also contended that Mrs. Hassel's life could have been
saved if Dr. Franzi would have returned her husband[’]s phone
calls on July 1, 2013.
On June 16, 2015, [Appellant] commenced this action by
filing a Complaint against [Dr. Franzi] and [Dr. Arnold]. The
Complaint brought professional negligence, wrongful death,
survivor, loss of consortium, negligent infliction of emotional
distress and vicarious liability claims against Dr. Franzi, Dr. Arnold
and the other defendants. On June 26, 2015, [Appellant] filed
certificates of merit in support of his claims. On December 1,
2017, an eight-day jury-trial commenced before the Honorable
Kenneth J. Powell Jr to determine the remaining negligence,
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wrongful death, survivor, and loss of consortium claims against
Dr. Arnold and Dr. Franzi. Ultimately, the jury found that Dr.
Franzi's treatment fell below the applicable standard of care, but
that his negligence was not a factual cause of any harm to Mary
Hassel and awarded no damages. Additionally, the jury found that
Dr. Arnold's treatment did not fall below the applicable standard
of care and no damages were awarded. On December 19, 2017,
[Appellant] filed a timely post-trial motion, which was denied by
this [c]ourt on January 8, 2018.
[Appellant] filed a timely appeal to the Superior Court on
January 8, 2018, and this [c]ourt filed an order pursuant to Pa.
R.A.P. 1925(b) requesting from [Appellant] a timely statement of
errors. [Appellant] filed a timely statement of errors pursuant to
Pa. R.A.P. 1925(b) on February 5, 2018.
II. Facts
On June 12, 2013, Mary Hassel, a 65-year-old woman,
presented to Dr. Arnold, an orthopedic surgeon, with complaints
of worsening left knee pain. N.T. December 6, 2017, p.m., pp. 13-
15. Mrs. Hassel expected to discuss the possibility of knee
replacement surgery. N.T. December 8, 2017, p.m., pp. 109.
During this time, her mobility was limited and she was wheelchair
bound. N.T. December 6, 2017, p.m., pp, 13-15. Mrs. Hassel's
medical history showed a history of hypertension, osteoarthritis,
thyroid disease, and a BMI of 41.6 at the time she sought
treatment. N.T. December 8, 2017, p.m., pp. 78-80. Dr. Arnold
ordered a STAT MRI and the results showed a fracture of Mrs.
Hassel's femur. Id. at 95-97. He determined that surgery was not
necessary and recommended immobilizing Mrs. Hassel's left leg to
facilitate healing. Id. at 99. Dr. Arnold's plan was to replace her
knee only after the femur healed. Id. at 109.
That same day, Dr. Arnold notified Mrs. Hassel of the MRI
results by telephone and she opted to see Dr. Arnold again in 2
days as opposed to going immediately to the emergency room.
Id. at 97-99. Blood clot prevention was discussed with Mrs. Hassel
and coumadin was mentioned as an option. N.T. December 6,
2017, p.m., pp. 16. Mrs. Hassel was familiar with coumadin and
understood that taking it requires additional diagnostic
monitoring. Id. Dr. Arnold also told Mrs. Hassel that he would
contact her primary care physician, Dr. Franzi, to discuss blood
clot prevention treatment due to her being immobilized while the
fracture heals. December 8, 2017, p.m., pp. 102. After speaking
to Mrs. Hassel, Dr. Arnold contacted Dr. Franzi to discuss the
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findings of the MRI and her potential risk factors for blood clots.
Id. at 103. The two physicians agreed that Dr. Franzi would select
the course of treatment for Mrs. Hassel based on his existing
relationship with her and extensive knowledge about her medical
history. Id. at 106-07. Dr. Arnold's notes from his conversation
with Dr. Franzi demonstrated an understanding between the two
of them that Dr. Franzi would work on Mrs. Hassel's
“anticoagulation.” N.T. December 6, 2017, p.m., pp. 82. Dr. Franzi
contacted Mrs. Hassel that same day and advised her to take 325
milligrams of aspirin twice per day to prevent blood clots. Dr.
Franzi discussed coumadin and aspirin as options to prevent blood
clots but did not discuss other drugs. Id. at 92.
On June 14, 2013, Mrs. Hassel saw Dr. Arnold once again
and he gave her the option of a cast or a brace to immobilize her
leg. Id. at 57. Mrs. Hassel chose the brace and she was given a
walker. Id. Dr. Arnold also asked Mrs. Hassel to attend physical
therapy sessions, which she attended, and told her to follow up in
two weeks. Id. Mrs. Hassel continued to work 40-42 hours a week,
with help from Mr. Hassel, until July 1, 2013, the day before she
died. Id. at 20. On the morning of July 1, 2013, Mr. Hassel picked
her up from work after she completed a night shift. Id. at 23. Mrs.
Hassel was not in any distress when she arrived home. Id. She
napped for a few hours and was not feeling well when she woke
up. Id. She was experiencing nausea, dry heaves, and diarrhea,
Id. At 5:54 p.m. Mr. Hassel called Dr. Franzi's office to report her
symptoms and left a message with a staff member. Id. at 26. He
expected to be called back but wasn't. Id. Mrs. Hassel's symptoms
persisted and worsened and Mr. Hassel placed another call to Dr.
Franzi's office. Id. at 27. Once again, Mr. Hassel's call was not
returned. Id. Hours later, Mrs. Hassel began to experience
shortness of breath and Mr. Hassel placed a call to 911 at 1:42
a.m. Id. at 29. Paramedics arrived to transport Mrs. Hassel to the
hospital and she died shortly thereafter. Id. at 33. Mrs. Hassel's
cause of death was cardiac arrest caused by the DVT in her left
leg and subsequent pulmonary embolism that developed. N.T.
December 5, 2017, p.m., pp. 62-63.
[Appellant] presented expert testimony from Dr. David
Diuguid, a hematologist, to provide causation opinions and
support the contention that, anticoagulant drugs and antiplatelet
drugs work differently, and he explained how each category of
drugs affect blood coagulation. N.T. December 4, 2017, p.m., pp.
2-7, 39, 41, 45-50.1 Dr. Diuguid alleged that anticoagulant drugs,
as opposed to antiplatelet drugs, were more appropriate for Mrs.
Hassel due to her risk factors for DVT that Dr. Franzi and Dr.
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Arnold both knew about. Id. at 26, 59-62. He also testified that
Mrs. Hassel likely would not have died, had she been placed on
anticoagulant medication. Id. at 58. Dr. Diuguid also provided
testimony to support Plaintiff's assertion that Mrs. Hassel's
chances for survival would have improved if Dr. Franzi would have
told her to go to the emergency room. Id. at 53-57,
[Appellant] also presented expert testimony from Dr. Paul
Genecin, an expert in primary care medicine and family practice.
N.T. December 5, 2017, a.m., pp. 10. Dr. Genecin testified that
Dr. Franzi was aware of Mrs. Hassel's risk factors for DVTs as early
as 2005 because her medical records show that he ordered
multiple diagnostic tests to check for them. Id. at 21-27. He cites
several instances where he felt that Dr. Franzi's treatment of Mrs.
Hassel did not meet the standard of care, attacking his clinical
record-keeping, choice of blood clot prevention medication, and
the fact that Mr. Hassel's phone calls, describing her symptoms
on the day she died, went unanswered. Id. at 30-31, 35-43, 45-
52. Dr. Genecin concluded by stating that Mrs. Hassel could have
been saved if Dr. Franzi would have returned Mr. Hassel's phone
call and that his failure to do was a deviation from the standard of
care. Id. at 52-53.
[Appellant’s] third medical expert, Dr. Faust, an orthopedic
surgeon, provided standard of care and causation opinions. Dr.
Faust opined that Dr. Arnold's treatment of Mrs. Hassel did not
meet the standard of care because orthopedic surgeons
understand the risks of the development of DVT and he should
have followed up with Dr. Franzi to ensure that Mrs. Hassel was
on an appropriate medication to prevent blood clots. N.T.
December 6, 2017, a.m., pp. 19-22, 40-41, 45-46. In Dr. Faust's
opinion, aspirin was not an appropriate medication for Mrs. Hassel
given her risk factors for DVT. Id. at 45-46.
[Appellant] presented an economist, David L. Hopkins to
discuss Mrs. Hassel's economic productivity. N.T. December 7,
2017, p.m., pp. 4-49. Mr. Hassel also testified about his
relationship with Mrs. Hassel and the events leading up to her
death. N.T. December 6, 2017, p.m., pp. 5-58. Mrs. Hassel's
daughter, Maureen Winscom testified about their relationship and
her knowledge of the events that led to her death. N.T. December
6, 2017, a.m., pp. 108-128.
Dr. Franzi opined that offering aspirin for blood clot
prevention to a patient with Mrs. Hassel's risk factors for DVT was
an appropriate standard of care. N.T. December 6, 2017, p.m.,
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pp. 104. Dr. Franzi also testified that the symptoms Mr. Hassel
described in voicemails left at his office were not unique to a DVT
diagnosis. Id. at 107-08. Dr. Franzi also discussed why he did not
return Mr. Hassel's phone calls on June 1, 2013. Dr. Franzi's office
was transitioning from paper charts to electronic medical records
and the message was stored in an area that Dr. Franzi was not in
the habit of checking, at the time. N.T. December 7, 2017, a.m.,
pp. 54-60. Dr. Franzi supported this theory of the case with expert
testimony from Dr. Frankil, a cardiologist, offered as an expert on
the standard of care for prevention and treatment of DVT and
pulmonary embolism. N.T. December 7, 2017, p.m., pp. 85-89.
Dr. Frankil also supported Dr. Franzi's contention that Mrs.
Hassel's early symptoms, described in the voicemails, on the day
she died would not have raised suspicion of DVT. Id. at 92-93, 99-
100.
Additional support for Dr. Franzi's treatment of Mrs. Hassel
was offered by Dr. Zakrzewski, a primary care medicine expert.
Dr. Zakrzewski's testified about why aspirin was an appropriate
medication for prevention of DVTs. N.T. December 8, 2017, p.m.,
pp. 22-28.
Dr. Franzi also offered Dr. Christensen, a pulmonary critical
care specialist, as an expert in internal medicine, pulmonary
medicine and the prevention and treatment of DVT's and
pulmonary emboli. Dr. Christensen rejected the theory advanced
by [Apppellant’s] experts, that had Mrs. Hassel been put on an
anticoagulant drug, she would not have developed a DVT. N.T.
December 8, 2017, a.m., pp. 79-89.
Dr. Arnold's position was that he treated Mrs. Hassel
expeditiously, corrected a misdiagnosis from a previous surgeon
who treated her, and discussed blot clot prevention with Dr.
Franzi, leaving the decision about what type of medication to
prescribe with him as her primary care physician. N.T. December
8, 2017, p.m., pp. 127-128. Dr. Arnold's contentions were
supported by Dr. Bosco, who was offered as an expert in
orthopedic surgery, causation as it applies to orthopedic surgery,
VTE prophylaxis for orthopedic surgeons and appropriate referral
and deferral to other specialties for orthopedic surgeons. N.T.
December 8, 2017, a.m., pp. 40-49,
___
1The transcript containing Dr. Diuguid's testimony contain[s]
references to multiple trial dates. The cover sheet contains the
date December 5, 2017. However, this is incorrect. Page 1 of Dr.
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Diuguid's testimony shows that he testified on December 4, 2017.
All references to Dr. Diuguid's testimony will use the date
December 4, 2017 as indicated on page 1.
Trial Court Opinion, filed 6/25/18, at 1-7.
In his Concise Statement of Matters Complained of on Appeal Pursuant
to Pa.R.A.P. 1925(b), Appellant set forth eight (8) allegations of error, several
of which contain numerous subparts. In his brief, Appellant presents the
following seven (7) issues for our review:
1. Did the trial court err in permitting the improper use of
learned treatises, i.e., permitting the reading from, discussion of,
and displaying to the jury, of the same?
2. Did the trial court err in permitting defense expert
witnesses Dr. Frankil and Dr. Christensen to testify beyond the
fair scopes of their reports?
3. Did the trial court err in permitting defendant Dr. Franzi
and defense experts Dr. Frankil, Dr. Christensen, and Dr. Bosco,
to testify on re-direct beyond the scope of their cross-
examination?
4. Did the trial court err in permitting cumulative/duplicative
expert testimony from defense experts?
5. Did the trial court err in not allowing Appellant’s/Plaintiff’s
counsel’s cross-examination of defendant Dr. Franzi regarding his
involvement in prior lawsuits?
6. Did the trial court err in not allowing Appellant’s/Plaintiff’s
counsel’s cross-examination of defense expert Dr. Zakrzewski
regarding his prior work as an expert witness for defense counsel
and defense counsel’s involvement in Dr. Zakrzewski’s prior
lawsuits?
7. Did the trial court err in not permitting
Appellant’s/Plaintiff’s counsel’s cross-examination of Dr. Franzi
regarding his responses to requests for admissions?
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Brief for Appellant at 4-5.
In considering Appellant’s first claim, we are mindful that courts
of this Commonwealth allow an expert witness the limited use of textual
material on direct examination to explain the basis for that expert's
reasoning. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000).
On cross-examination, an expert witness may be questioned on the
contents of any publication on which he or she relied in forming an
opinion, or one in the field that he or she considers generally reliable;
the evidence is admissible to challenge the witness's credibility, but the
writing cannot be admitted for the truth of the matter asserted. Majdic
v. Cincinatti Mach. Co., 537 A.2d 334, 339 (Pa.Super. 1988), appeal
denied, 520 Pa. 594, 552 A.2d 249 (1988). Excerpts from a publication
which are read into evidence for the purpose of proving the truth of the
statements contained therein constitute hearsay and, therefore, are
inadmissible. This fact is not changed merely because the document is
read into evidence by the witness instead of being received as an exhibit
for inspection by the jury. It is the purpose for which the information is
offered, not the manner in which is introduced, which makes it
objectionable. Id. at 340.
In Aldridge, defense counsel examined an expert witness at trial
through the use of textbooks on pediatrics. In its review of the use of
those textbooks, the Pennsylvania Supreme Court clarified its position
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on the use of learned treatises at trial generally. Aldridge, 561 Pa. at
334, 750 A.2d at 298. The Court held that although some published
materials could be considered hearsay, an expert witness may
nonetheless rely upon them in the formation of his or her opinion, and
it would be unreasonable to restrain an expert witness entirely from any
use of a learned treatise. Id. at 333-34, 750 A.2d at 297-98. However,
the Supreme Court did direct that trial courts should exercise caution
and issue limiting instructions when allowing the use of learned treatises
to ensure that the publications themselves did not become the focus of
the examination and supersede the expert's own testimony. Id. Thus,
[u]pon a party's request, the trial court shall issue appropriate
limiting instructions to ensure that the inadmissible hearsay does
not come in for substantive purposes and that the treatise does
not become the focus of cross. Aldridge, 750 A.2d at 297 (citing
Pa.R.E. 105 (“When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for
another purpose is admitted, the court upon request shall, or on
its own initiative may, restrict the evidence to its proper scope and
instruct the jury accordingly.”)). It remains to be determined,
however, “whether the [a]ppellants are entitled to a new trial, as
an erroneous evidentiary ruling will generally require reversal only
if it caused prejudice.” Aldridge, 750 A.2d at 298 (holding that
erroneous admission of hearsay did not prejudice results of trial
so as to require reversal). A trial court's failure to limit the use of
treatises effectively may constitute grounds for reversal only if the
issue was properly preserved at all stages of the proceedings and
prejudice can be established. See Klein, 85 A.3d at 505 (Pa.
Super. 2014) (Fitzgerald, J., concurring in part and dissenting in
part) (citing Aldridge, 750 A.2d at 298).
Crespo v. Hughes, 167 A.3d 168, 185–87 (Pa.Super. 2017), appeal denied,
184 A.3d 146 (Pa. 2018).
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Before we reach the merits of this issue, we first must determine
whether Appellant properly has preserved it for our review. Prior to its
discussion of this claim in its Opinion filed pursuant to Pa.R.A.P. 1925(a), the
trial court stated:
Appellant makes a panoply of evidentiary arguments
alleging that this [c]ourt, among other things, allowed learned
treatises to be improperly used by [Appellees]. This [c]ourt
welcomes the opportunity to thoroughly address all the issues
Appellant raises on appeal. However, it must be initially noted
that Appellant did not include a single reference to the trial record
in his lengthy Statement of Errors or his Post-Trial Motion.
Therefore, all allegations of error in this Opinion will be analyzed
according to this [c]ourt’s good faith effort to precisely capture
the contours of trial testimony, and identify documents that
Appellant should have referenced.
Trial Court Opinion, filed 6/25/18, at 13.
In his Concise Statement Appellant alleges, in relevant part:
I. FIRST ARGUMENT: IMPROPER USE OF LEARNED
TREATISES
a. This Honorable Court erred by allowing defense counsel to
utilize medical literature ("Learned Treatises") during direct
examination of their own defense experts, including Dr.
Frankil, Dr. Zakrzewski, and Dr. Christensen, as well as on
direct examination of Defendant Franzi, to improperly bolster
their experts' and defendant's opinions on direct examination (and
re -direct examination) by discussing the specific content of the
Learned Treatises, by reading directly from the Learned Treatises
to the jury, and by marking it as an exhibit to show the jury on
direct examination (and re -direct examination). See Aldridge v.
Edmunds, 750 A.2d 292, 296 (Pa. 2000); see also Jones v.
Constantino, 631 A.2d 1289 (Pa. Super 1993).
b. This Honorable Court erred by allowing defense counsel to
publish (i.e. display the documents on a screen projected for the
jury to see) multiple medical literature articles ("Learned
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Treatises") during cross-examination of Plaintiff's experts,
including Dr. Diuguid, Dr. Genecin, and Dr. Faust, as well as on
direct examination of Defendant Franzi and direct
examination of defense experts, including Dr. Frankil, Dr.
Zakrzewski, and Dr. Christensen.
c. This Honorable Court erred by not allowing [Appellant] to utilize
several pieces of medical literature ("Learned Treatises") during
the cross-examination of [Appellees], Dr. Franzi and Dr.
Arnold, as well as during the cross-examination of defense
experts, Dr. Frankil, Dr. Zakrzewski, Dr. Christensen, and Dr.
Bosco, which had been properly authenticated by plaintiff experts,
through the testimony of [Appellant’s] experts, Dr. Diuguid and/or
Dr. Genecin. See McDaniel v. Merck., Sharp & Dohme, 533 A.2d
436, 447 (Pa.Super. 1987); see also Judge Bernstein in
Pennsylvania Rules of Evidence, 2015 Ed., at p. 831.
d. This Honorable Court erred by allowing defense counsel to
improperly utilize medical literature ("Learned Treatises") during
the cross-examination of[Appellant’s] experts, including Dr,
Diuguid, Dr. Genecin, and/or Dr. Faust, which were never properly
authenticated during trial.
e. This Honorable Court erred by allowing defense counsel to
utilize medical literature ("Learned Treatises") during direct
examination of defense experts and cross-examination of
Plaintiff's experts, including Dr. Diuguid, that had never been
disclosed in discovery, expert reports, and/or the Pre –Trial
Memorandum, in violation of this Honorable Court's Order, dated
June 15, 2016, and/or the Pre -Trial Memoranda and Orders
and/or the Rules of Evidence.
See Plaintiff’s/Appellant’s Concise Statement of Matters Complained of on
Appeal Pursuant to Pa.R.A.P. 1925(b) at 1-2 (emphasis in original).
Following our independent review of the general allegations contained
in Appellant’s Concise Statement, we agree that it is unclear which of the
“Learned Treatises” Appellant intended to challenge on appeal and the point
during any of the numerous expert witness’s direct or cross examination at
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which he wished to challenge the same. Appellant further fails to identify in
his Concise Statement where in the record these challenges were preserved
for appeal, for he fails to state exactly where in the notes of testimony this
Court can find objections thereto.
It is axiomatic that when a court has to guess what issues a defendant
is appealing, that is not enough for meaningful review. Similarly, when a
defendant fails adequately to identify in a concise manner the issues sought
to be pursued on appeal, the trial court is impeded in its preparation of a legal
analysis which is pertinent to those issues. In other words, a concise
statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent of no concise statement at all.
Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super. 2000), affirmed, 571
Pa. 441, 812 A.2d 631 (2002); Lineberger v. Wyeth, 894 A.2d 141, 148
(Pa.Super. 2006). In light of the foregoing, Appellant has waived this
challenge for appellate review.
In addition, the trial court referenced an eight day trial in its rule
1925(a) Opinion. However, Appellant initially provided this Court with the
notes of testimony from only the a.m. portion of December 4, 2017, and the
a.m. and p.m. sessions of the notes of testimony for only December 5, 2017,
December 6, 2017, December 7, 2017, and December 8, 2017. Our
Prothonotary put forth extensive efforts to ascertain the remaining notes of
testimony, which include the trial court’s instruction to the jury and closing
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arguments, and this Court did not receive the same until the eve of oral
argument.1
Upon finally reviewing the notes of testimony from the p.m. session of
the December 8, 2017, and those from December 11, 2017, along with the
others, we were unable to ascertain a place where Appellant requested that
the trial court provide the jury with a limiting instruction. Indeed, Appellant
does not allege that he had made such a request. As a result, Appellant has
waived his first issue on this basis as well. See Crespo, 167 A.3d at 187
(stating trial court’s alleged failure to limit properly the use of learned treatises
constitutes grounds for a new trial only where a party specifically objects to
the impermissible reading medical literature and requests a specific limiting
instruction pertaining to the jury’s consideration of the literature).2
____________________________________________
1 We remind Appellant it is his duty to ensure this Court receives all of the
documents needed to review his issues on appeal. Pa.R.A.P.1921 (setting
forth the composition of the record on appeal); Commonwealth v. Reed,
601 Pa. 257, 263, 971 A.2d 1216, 1219 (2009). “[A]n appellate court cannot
consider anything which is not part of the record in the case ... because for
purposes of appellate review, what is not of record does not exist.”
Commonwealth v. Johnson, 33 A.3d 122, 126 n. 6 (Pa.Super. 2011),
appeal denied, 47 A.3d 845 (Pa. 2012) (citations and internal quotation marks
omitted). “Where a review of an appellant's claim may not be made because
of such a defect in the record, we may find the issue waived.” Eichman v.
McKeon, 824 A.2d 305, 316 (Pa.Super. 2003).
2 Even had Appellant properly preserved this issue for our review, we would
find that to the extent the trial court was able to address the same, it did so
adequately and we would rely upon its well-reasoned analysis in disposing of
Appellant’s initial claim. See Trial Court Opinion, filed 6/25/18, at 13-26.
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Appellant next maintains the trial court erred in permitting Drs. Frankil
and Christensen to testify to matters which exceeded the fair scope of their
expert reports. We disagree.
We review a trial court's evidentiary decisions for an abuse of discretion.
See Schmalz v. Mfrs. and Traders Trust Co., 67 A.3d 800, 802–03 (Pa.
Super. 2013); Smith v. Paoli Mem'l Hosp., 885 A.2d 1012, 1016 (Pa.Super.
2005) (“Decisions regarding admission of expert testimony, like other
evidentiary decisions, are within the sound discretion of the trial court.”)
(citations omitted). In this context, “[d]iscretion is abused when the course
pursued represents not merely an error of judgment, but where the judgment
is manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will.”
Schmalz, supra at 803 (citation omitted). “To reverse the trial court, the
[S]uperior [C]ourt must consider all the evidence in the light most favorable
to the appellee and conclude that the verdict would be changed if another trial
were granted.” Woodard v. Chatterjee, 827 A.2d 433, 440 (Pa.Super. 2003)
(citation omitted) (brackets in original).
Experts may testify at trial concerning matters which are within the fair
scope of a pretrial report. The avoidance of unfair surprise to an adversary
concerning the facts and substance of an expert's proposed testimony is the
primary purpose of the rule requiring that testimony be within the fair scope
of the pretrial report. Walsh v. Kubiak, 661 A.2d 416, 419-20 (Pa.Super.
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1995) (en banc), appeal denied, 672 A.2d 309 (Pa. 1996) (citations and
quotation marks omitted).
The fair scope rule is addressed in Pa.R.C.P. 4003.5(c) and provides that
an expert witness may not testify on direct examination concerning matters
which are either inconsistent with or go beyond the fair scope of matters
testified to in discovery proceedings or, as here, included in a separate report.
In Wilkes–Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre,
Inc., 502 A.2d 210 (Pa.Super. 1985), this Court explained that:
[I]t is impossible to formulate a hard and fast rule for determining
when a particular expert's testimony exceeds the fair scope of his
or her pretrial report. Rather, the determination must be made
with reference to the particular facts and circumstances of each
case. The controlling principle which must guide is whether the
purpose of Rule 4003.5 is being served. The purpose of requiring
a party to disclose, at his adversary's request, “the substance of
the facts and opinions to which the expert is expected to testify”
is to avoid unfair surprise by enabling the adversary to prepare a
response to the expert testimony. See Augustine v. Delgado,
332 Pa. Super. [194] at 199, 481 A.2d [319] at 321 [ (1984) ]
(“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses
and disfavors unfair and prejudicial surprise”); Martin v. Johns–
Manville Corp., 322 Pa. Super. [348] at 358, 469 A.2d [655] at
659 [ (1983) ] (“[W]e have found experts' reports to be adequate
... when the report provides sufficient notice of the expert's theory
to enable the opposing party to prepare a rebuttal witness.”). In
other words, in deciding whether an expert's trial testimony is
within the fair scope of his report, the accent is on the word “fair.”
The question to be answered is whether, under the particular facts
and circumstances of the case, the discrepancy between the
expert's pretrial report and his trial testimony is of a nature which
would prevent the adversary from preparing a meaningful
response, or which would mislead the adversary as to the nature
of the appropriate response.
Id. at 212–13.
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In applying this controlling authority herein, we conclude the trial court
committed no error of law and acted well within the proper scope of discretion
in admitting the challenged testimony. In his brief, Appellant maintains he
objected to defense expert Dr. Frankil’s testimony regarding the placement of
a filter to prevent a clot, which was offered in response to Appellant’s expert
testimony, on the basis that Dr. Frankil’s report did not reference filters. Brief
for Appellant at 33. However, a review of the record reveals Appellant’s
counsel did not set forth a specific objection in this regard:
Mr. Aussprung: Your Honor, while he’s doing that I don’t
believe that this report mentioned anything about filters.
THE COURT: It was just—
Mr. Wright: That was a response to the testimony that
was given by your expert.
THE COURT: I will overrule that.
N.T., 12/7/17 p.m., at 99.
Following this exchange, counsel did not further object on the basis that
Dr. Frankil’s testimony was not properly in response to that provided by
Appellant’s experts during trial. Therefore, this claim is waived. See Pa. R.A.P.
302(a); Jones v. Ott, ___ Pa. ____, 191 A.3d 782, 787 (2018) (stating “In
order to preserve an issue for appellate review, a litigant must place a timely,
specific objection on the record.” (citations omitted)).
In addition, Appellant’s assertions to the contrary, in the sixth paragraph
of his expert report dated February 25, 2017, Dr. Frankil discussed Mrs.
Hassel’s fracture and her mobility issues; therefore, counsel’s objection that
Dr. Frankil’s testimony concerning the fracture was not in his report and well
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beyond the scope of cardiology and his position that he was not put on notice
of such testimony, see Brief for Appellant at 33-34, is unsupported by the
record.
Appellant further avers the trial court erred in overruling his objection
to Dr. Christensen’s testimony pertaining to whether aspirin was an
appropriate treatment for Mrs. Hassel as exceeding the scope of his expert
report. Brief for Appellant at 34. As the trial court notes in its Rule 1925(a)
Opinion, in his February 23, 2017, expert report, Dr. Christensen opines as
follows:
I would submit that Dr. Franzi’s decision to increase [Mrs.
Hassel’s] aspirin dose was an extrapolation of several of these
guidelines and was actually above the standard of care offering
VTE prophylaxis with little risk of bleeding.
Dr. Christensen’s Expert Report, 2/23/17, at 6.
In light of the foregoing, Appellant’s claims he was highly prejudiced as
he had no notice of the aforementioned opinions and was unprepared to cross-
examine the physicians regarding the same are belied by the record. To the
contrary, our review of notes of testimony revealed that Appellant’s counsel
had ample opportunity to cross-examine Drs. Frankil and Christensen and
conducted a capable and productive cross-examination of them. (See N.T.
Trial, 12/7/17 p.m., at 105-116; 123-24; N.T. Trial, 12/8/17 a.m., at 69-72;
89-129; 140-146). For example, counsel questioned each doctor’s
assumptions and challenged his methodology. As such, viewing the evidence
in the light most favorable to Appellant, as we must under our standard of
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review, we conclude there is no support for the claim of surprise. The trial
court committed no error of law and properly exercised its discretion in
admitting the challenged testimony.
In his third allegation of error, Appellant states the trial court erred in
permitting Dr. Franzi and his defense experts Dr. Frankil, Dr. Christensen, and
Dr. Bosco to testify on re-direct examination to matters beyond the scope of
their cross-examination. However, in the body of his appellate brief, Appellant
develops a single-paragraph argument pertaining only to Dr. Frankil’s
testimony as to whether he agreed with the testimony of Appellant’s
hematology expert. Thus, Appellant has waived any argument concerning the
other doctors’ testimony. See Commonwealth v. Roche, 153 A.3d 1063,
1072 (Pa.Super. 2017), appeal denied, 641 Pa. 807, 169 A.3d 599 (2017)
(reiterating waiver results if an appellant fails to develop properly an issue or
cite to legal authority to support his contention in his appellate brief).
While Appellant now contends Dr. Frankil’s opinion as to causation was
beyond the scope of his expert report, Brief for Appellant at 35, the basis for
his objection at trial was that Dr. Frankil had not been qualified during vior
dire to testify as an expert regarding causation at trial. N.T., 12/6/17 p.m.,
at 90-91. The Pennsylvania Supreme Court has long held that to preserve for
appellate review an objection, the objection must be specific and brought to
the trial judge's attention as soon as is practical. Commonwealth v.
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Sanchez, 623 Pa. 253, 297–98, 82 A.3d 943, 969–70 (2013); Pa.R.A.P.
302(a).
Here, Appellant did not lodge a specific objection that the proposed
causation testimony exceeded the scope of Dr. Frankil’s expert report at trial,
and, instead, raised that basis for objection for the first time on appeal. Thus,
it is waived. Sanchez, supra. In the alternative, as defense counsel noted,
and as Appellant’s counsel acknowledged, such testimony was in response to
testimony that Appellant’s expert had provided at trial. N.T. 12/7/17 p.m., at
96. Therefore, the trial court did not err in allowing it.
Appellant next argues the trial court erred in allowing Appellees to
introduce “excessively duplicative” expert testimony despite its pretrial order
entered November 29, 2017, in response to Dr. Arnold’s Motion in Limine filed
on November 15, 2017, precluding Appellant from offering cumulative
testimony at trial. Appellant states that in reliance upon this directive, he did
not ask his expert Dr. Diguid to opine as to standard of care. Appellant argues
the direct testimony of Dr. Frankil, a general clinical cardiovascular specialist,
was unnecessary as the instant matter did not involve cardiology issues and
other defense experts testified as to standard of care. Appellant also states
that this, along with proffered testimony of Thomas Zakrewski, an internist
qualified to discuss primary care medicine, on the standard of care constituted
excessively cumulative and severely prejudicial testimony.
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“We begin by noting there is a subtle difference between evidence that
is ‘corroborative’ and evidence that is ‘cumulative.’ In the most general sense,
corroborative evidence is ‘[e]vidence that differs from but strengthens or
confirms what other evidence shows,’ while cumulative evidence is
‘[a]dditional evidence that supports a fact established by the existing
evidence.’ Black's Law Dictionary. 674, 675 (10th ed. 2014).”
Commonwealth v. Small, ___ Pa. ____, ____, 189 A.3d 961, 972 (2018).
Upon review of the certified record, we conclude the trial court did not abuse
its discretion in finding that the challenged testimony was corroborative rather
than cumulative and, therefore, proper under the terms of its pre-trial orders
because each of Dr. Franzi’s experts opined form the perspective of his
specialty. We reach this conclusion based on the trial court's sound reasoning,
which we adopt as our own:
Appellant opines that the testimony from the
aforementioned experts was cumulative and that this [c]ourt
applied its decision on a Motion In Limine dated November 29,
2017, unequally.8 This [c]ourt also issued a pre-trial order,
attached hereto as Exhibit A, asking the parties to review
testimony prior to trial so that cumulative testimony can be
eliminated.9
Each of the experts Dr. Franzi presented, offered opinions
from different specialties, and approached the standard of care
issue from different clinical perspectives. Each of the experts
reached the same conclusion, that aspirin was an appropriate
treatment for Mrs. Hassel, and their testimony is consistent with
what the Superior Court determined in Klein v. Aronchick[3] to be
corroborative testimony, not cumulative testimony.
____________________________________________
3Klein v. Aronchick, 85 A.3d 487 (Pa.Super. 2014), appeal denied, 104 A.3d
5 (Pa. 2014).
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Appellant also argues that Dr. Diguid's testimony was
unfairly limited by this [c]ourt and that it enforced pre-trial
Motion's In Limine on the issue of cumulative testimony unfairly
or unequally. Appellant's statement of errors does not provide any
direction with regard to how this [c]ourt unfairly limited Dr.
Diuguid within the context of Dr. Franzi or Dr. Arnold's testimony.
However, the record indicates that this [c]ourt granted two
motions in limine submitted by Defendant, William V. Arnold M.D.
Ph.D.
The first Motion In Limine of Defendant William V. Arnold
M.D. Ph.D., dated November 29, 2017, and referenced supra, to
preclude Plaintiff from [o]ffering [c]umulative [t]estimony at
[t]rial, contained the following language added by this Court.
“Motion as to Cumulative Testimony is GRANTED,
testimony of specific witnesses[’] cumulative testimony
is discussed in this Court's pretrial Order and should be
resolved, if possible, according to that directive.”
A discussion about cumulative testimony of the experts
testifying, in this case, took place on the record prior to opening
arguments. December 4, 2017, a.m., pp. 8-18. Counsel for Dr.
Arnold expressed concern about [Appellant’s] hematologist (Dr.
Diuguid) and critical care doctor (Dr. Genecin) presenting
testimony on the standard of care for an orthopedic surgeon. Id.
at 8. This [c]ourt then asked each of the parties to draft a motion,
which crystalizes their arguments on this issue. Id. at 13. The
[c]ourt then issued an order on December 4, 2017, precluding
“any and all fact and/or expert witnesses not board certified in
orthopedic surgery from offering unqualified and cumulative
standard of care and/or causation opinions as to defendant,
William V. Arnold, M.D., Ph.D10”.
The second discussion related to this issue occurred prior to
the jury entering the room before the beginning of Dr. Frankil's
testimony. N.T. December 7, 2017, p.m., pp. 59-62. Appellant
objected to Dr. Frankil's testimony, on the grounds that it was
cumulative and that he was not qualified to render an opinion
against Dr. Franzi (a family physician) because he is a cardiologist.
This court overruled Appellant's objection. The following excerpt
from this discussion provides context as it relates to this issue.
[Defense Counsel] We're looking at it. I take the same
position I did in that motion. There's an overlap in the
two specialties. He's permitted to testify.
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[[Appellant’s] Counsel] There's more of an overlap
between hematology and the issues in this case than
there are between cardiology issues in this case. I was
not permitted to have my expert give those opinions.
[Defense Counsel] I did not object to the hematologist.
[[Appellant’s] Counsel] We had a whole discussion, Ms.
Hansen [Counsel for Dr. Arnold] and I, about the bounds
of my opinion that he could not give a standard of care
opinion. And that was the ruling.
[Defense Counsel] That's between orthopedics and
hematology, not between hematology and internal
medicine. I didn't raise that objection.
[The [c]ourt] So I allow it and I will rule on it as
necessary. N.T. December 7, 2017, p.m., pp. 59-62.
It appears that Appellant was simply confused by the scope
of the order, filed by this [c]ourt, which clearly precluded any
expert who isn't board-certified in orthopedic surgery from
testifying against Dr. Arnold. The Order did not weigh in on
whether Dr. Diuguid, Appellant's hematology expert could offer
standard of care opinions against Dr. Franzi. Therefore, any
interpretation to the contrary that Appellant developed through
the course of this litigation is purely subjective. That
notwithstanding, Dr. Diuguid provided ample testimony calling
into question Dr. Franzi's professional competence and
unavailability on the day Mrs. Hassel died. With respect to Dr.
Arnold, Appellant also elicited ample testimony from Dr. Faust, an
orthopedic surgeon with the same board certification, to testify
about the standard of care of an orthopedic surgeon. Dr. Faust
challenged Dr. Amold's treatment of Mrs. Hassel in great detail.
Dr. Diguid was not unfairly limited by this [c]ourt. This issue is
meritless.
____
8 Motion in Limine of Defendant’s, William V. Arnold, M.D., Ph.D.
to preclude from Offering Cumulative Testimony at Trial, Control
No. 17112117, filed Nov. 15, 2017 and decided by this [c]ourt on
November 29, 2017.
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9 This document was submitted for docketing, but for unknown
reasons it is not on the docket. Thus, it is attached so that the
Superior Court has a full record for review.
10Defendant’s William V. Arnold, M.D., Ph.D. and Reconstructive
Orthopedic Associates II, P.C. d/b/a The Rothman Institute’s
motion in limine dated December 4, 2017 and docketed December
4, 2017.
Trial Court Opinion, filed 6/25/18, at 36-38.
Appellant’s fifth and sixth issues pertain to the trial court’s alleged error
in failing to permit Appellant to cross-examine Dr. Franzi regarding his prior
involvement in medical malpractice cases and to cross-examine defense
expert Thomas Zakreski, M.D. regarding his relationship with Dr. Franzi’s
counsel. Appellant posits such questioning was relevant and in doing so relies
upon this Court’s decision in Flenke v. Huntington, 111 A.3d 1197, 1200
(Pa.Super. 2015) wherein this Court stated, inter alia, that the impeachment
of expert witnesses by demonstrating their partiality is permitted under
Pennsylvania law. Brief for Appellant at 40.
Generally speaking, evidence is relevant if it has “any tendency to make
a fact more or less probable than it would be without the evidence.” Pa.R.E.
401(a). “All relevant evidence is admissible, except as otherwise provided by
law.” Pa.R.E. 402. Although relevant, evidence may be excluded “if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
Moreover,
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[t]he scope of cross-examination is within the sound discretion of
the trial court, and we will not reverse the trial court's exercise of
discretion in absence of an abuse of that discretion. Generally,
[e]very circumstance relating to the direct testimony of an
adverse witness or relating to anything within his or her
knowledge is a proper subject for cross-examination, including
any matter which might qualify or diminish the impact of direct
examination. Specifically regarding medical experts, the scope of
cross-examination involving a medical expert includes reports or
records which have not been admitted into evidence but which
tend to refute that expert's assertion.
Jacobs v. Chatwani, 922 A.2d 950, 965 (Pa.Super. 2007) (citation omitted),
appeal denied, 595 Pa. 708, 938 A.2d 1053 (2007).
Herein, aside from his brief citation to Flenke, Appellant’s two-
paragraph argument in support of his fifth issue contains a reference to
Pa.R.E. 607(b)4 and baldy concludes that “[g]iven the witness[’s] prior
involvement in medical malpractice litigation, his credibility and bias may be
evident to the jury, which [it] may properly use to assess his credibility. Thus,
this line of cross-examination was relevant and proper.” Brief for appellant at
40 (emphasis added). Appellant maintains that the same analysis would apply
to his sixth issue which challenges the trial court’s preventing him from cross-
____________________________________________
4Entitled “Who May Impeach a Witness, Evidence to Impeach a Witness,”
Pa.R.E. 607 reads in relevant part, as follows:
(b) Evidence to Impeach a Witness. The credibility of a
witness may be impeached by any evidence relevant to that issue,
except as otherwise provided by statute or these rules.
Pa.R.E. 607(b).
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examining Dr. Zakreski, and following a lengthy quote from Flenke he simply
concludes:
Such cross-examination was acceptable, and is also
appropriate for this case, including motives and incentives given
a prior history of writing reports and doing expert work for the
same defense attorney and whether writing an unfavorable report
would render him less likely to be used as an expert again for the
defense attorney.
Brief for Appellant at 43.
In Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 592
(Pa.Super. 2002) (en banc), this Court acknowledged that “an expert witness
can be cross-examined as to any facts that tend to show partiality on the part
of the expert[.]” Nevertheless, Appellant herein utterly has failed to establish
that any error with regard to these evidentiary rulings resulted in prejudice to
him which would warrant a new trial. See Yacoub, 805 A.2d at 586 (“[I]f the
basis of the request for a new trial is the trial court's rulings on evidence, then
such rulings must be shown to have been not only erroneous but also harmful
to the complaining party.”). See also Jacobs, supra, at 966–67. Appellant’s
arguments in this regard are in terms of generalities and hypotheticals;
accordingly, [Appellant] has failed in his duty to persuade us that these
purportedly erroneous evidentiary rulings resulted in prejudice so as to
warrant a new trial. Jacobs, at 967.
Finally, Appellant claims the trial court should have permitted cross-
examination of Dr. Franzi pertaining to his verified responses to requests for
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admissions. Relying on Pa.R.E. 611(b)5 in the two short paragraphs he
devotes to this issue in his appellate brief, Appellant concludes, “[c]ross-
examination of the requests for admissions involving the femur fracture/pelvis
are clearly relevant to the issues in this case and to Dr. Franzi’s credibility,
and preventing such examination was improper and prejudicial to
[Appellant].” Brief for Appellant at 44. The referenced exchange proceeded
as follows:
Mr. Aussprung: Now, we had- the lawyers, we had a little
bit of a dispute about something that came up in your deposition.
Remember we were talking about the femur and I asked you about
her fracture?
Dr. Franzi: Yes, sir.
Mr. Aussprung: And you said, well, it was more of a
crack?
Dr. Franzi: It was a nondisplaced fracture, which is a
crack, yes, sir.
Mr. Aussprung: You didn’t like the term fracture. You
wanted to use the term crack, correct? Can we agree it’s a
fracture?
Dr. Franzi: Absolutely.
Mr. Aussprung: And I said, well, the femur is the
strongest bone in the human body, right?
Dr. Franzi: Yes, sir.
Mr. Aussprung: You said, well—
Dr. Franzi: Well, actually you said it was the largest bone
and I agreed with that.
Mr. Aussprung: Then I said it’s the strongest bone and
you said, well, you weren’t so sure?
Dr. Franzi: I’m not.
____________________________________________
5 This Rule states, in relevant part, that “[a] party witness in a civil case may
be cross-examined by an adverse party on any matter relevant to any issue
in the case, including credibility, unless the court, in the interests of justice,
limits the cross-examination with respect to matters not testified to on direct
examination.” Pa.R.E. 611(b).
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Mr. Aussprung: And I said well what bone is stronger
than the femur and you told me the pelvis, right?
Dr. Franzi: Yes, sir.
Mr. Aussprung: And the pelvis since then we all
understand and agree that the pelvis is not a bone; it’s three
bones, right?
Dr. Franzi: That’s actually four.
Mr. Aussprung: Four bones. Two hipbones, correct?
Dr. Franzi: It’s two hipbones. It’s the coccyx and the
sacrum and it’s the pubis.
Mr. Aussprung: Can we now agree the Femur is the
strongest bone in the human body?
Dr. Franzi: Okay.
Mr. Aussprung: Is there a reason why when I sent you
a request for admission on that—
Mr. Wright: Objection, Your Honor.
The Court: I will sustain the objection.
Mr. Aussprung: Now, when you prescribed. . . .
Trial Testimony 12/6/17, at 123-125.
Aside from his bald allegations, Appellant has failed to develop how the
trial court’s sustaining of the objection prejudiced him. Regardless of what
Dr. Franzi had stated in response to Appellant’s request for admission,
Appellant’s line of questioning had the desired result of obtaining Dr. Franzi’s
admission that the femur is the strongest bone in the body, despite some
apparent earlier confusion in this regard. This final claim lacks merit.
Judgment affirmed.6
____________________________________________
6 This Court is not limited by the trial court's rationale and may affirm its
decision on any basis. See Commonwealth v. Cramer, 195 A.3d 594, 607
n.5 (Pa.Super. 2018); see also Commonwealth v. Moore, 594 Pa. 619,
638, 937 A.2d 1062, 1073 (2007) (holding that it is a well-settled doctrine in
this Commonwealth that a trial court can be affirmed on any valid basis
appearing of record).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/19
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