Andrusis, C. v. Microvention, Inc. ( 2019 )

J-A14012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTIAN L. ANDRUSIS AND : IN THE SUPERIOR COURT OF
THERESA A. MACURAK, CO- : PENNSYLVANIA
ADMINSTRATORS OF THE ESTATE OF :
LAURA J. ANDRUSIS, DECEASED :
:
Appellants :
:
:
v. : No. 1242 WDA 2018
:
:
MICROVENTION, INC., A :
CORPORATION; ALLEGHENY :
GENERAL HOSPITAL, A :
CORPORATION; ROBERT WILLIAMS, :
M.D.; AND ALLEGHENY RADIOLOGY :
ASSOCIATES, LTD., A CORPORATION :
Appeal from the Order Entered August 17, 2018
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-08-016008
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 26, 2019
Christian L. Andrusis and Theresa A. Macurak, Co-Administrators of the
Estate of Laura J. Andrusis, deceased (collectively, “Administrators”), appeal
from the judgment entered August 17, 2018, in the Allegheny County Court
of Common Pleas in favor of defendants, Robert Williams, M.D. (“Dr.
Williams”), Allegheny General Hospital (“Hospital”), and Allegheny Radiology
Associates (“Radiology”),1 following a jury trial in this medical malpractice
action. Administrators raise three issues on appeal: (1) the trial court erred
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1 We will refer to these three parties collectively as “Defendants.”
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in admitting testimony concerning the decedent’s informed consent to the
procedure; (2) the trial court erred in granting a compulsory nonsuit to
additional defendant, MicroVention, Inc.; and (3) the trial court abused its
discretion when it permitted Hospital and Dr. Williams to present cumulative
expert testimony. For the reasons below, we affirm.
The facts underlying Administrators’ medical malpractice claim are as
follows. In November of 2005, during a procedure to repair a subarachnoid
hemorrhage, the decedent’s neurosurgeon discovered she had an aneurysm
on the superior tip of her basilar artery. See N.T., 11/28/2017-12/7/2017, at
415-416. After recovering from the first procedure, the decedent was referred
to Dr. Williams, an interventional radiologist, to treat the aneurysm. In June
of 2006, Dr. Williams met with the decedent and her daughter, Theresa
Macurak, to discuss a treatment plan. Because of the location of the aneurysm
at the brain stem of the skull, Dr. Williams recommended the decedent
undergo a cerebral angiogram and endovascular coiling of the aneurysm.2
See id. at 418-420, 537-538
On August 8, 2006, Dr. Williams performed the procedure on the
decedent at Hospital. He chose to use a Boston Scientific SL-10 microcatheter,
paired with a MircoVention HES-14 HydroCoil. See id. at 313-314, 580-581.
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2The procedure involves inserting stents through the femoral artery, and
maneuvering them through a microcatheter until reaching the aneurysm.
Detachable coils are then guided though the microcatheter into the aneurysm,
where they are designed to swell, fill the aneurysm, and promote clotting.
See N.T., 11/28/2017-12/7/2017, at 532, 547-548, 579-580.
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Dr. Williams acknowledged the HES-14 coil was larger than what was
recommended for use with the SL-10 microcathether. The SL-10
mircocatheter he used had a diameter of .0165 inches, and MicroVention
recommended using a microcatheter with a diameter of .019 inches with the
HES-14 coil. See id. at 653. Nevertheless, after consultation with another
doctor, Dr. Williams paired the smaller microcatheter, which was more pliable
than a larger microcatheter and would track better through the artery, with
the larger coil because it would better fill the decedent’s aneurysm. See id.
at 580-581, 587-589.
Dr. Williams testified he placed the first coil in position within 90
seconds. See id. at 586, 590. However, because the coil was in the dome of
the aneurysm, rather than across the neck of the aneurysm, Dr. Williams had
to reposition it. See id. at 587. He testified he was able to reposition the coil
within three minutes. See id. at 590, 659-660. It merits mention
MicroVention’s “Instructions for Use” (“IFU”) provides strict time frames for
the repositioning of the coil once it is introduced into the microcatheter, and
directs that the coil and microcatheter should be removed if they cannot be
positioned and detached within the specified time frame. See id. at 316-317.
Because Dr. Williams had paired the coil with a microcatheter that was not
recommended, he and another doctor chose three minutes as the
repositioning time. See id. at 589-590, 658. After placing the coil within the
targeted time period, and confirming its position with an angiogram, Dr.
Williams attempted to detach the coil from the pusher wire using a “V-grip”
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detachment device, so that he could insert another coil. Id. at 591-592.
However, as he explained, the coil would not detach from the pusher wire:
I wasn’t getting the proper signal. I kept working with that. And
I followed what the company suggested. Wipe it down. Try to
work on the contact, and … I don’t remember all of the colors and
lights, but it didn’t work.
Id. at 591. Dr. Williams attempted to remove the coil with a second, and later
third, “V-grip” device, which still did not work.3 See id. at 593-594.
Ultimately, because he could not detach the coil from the pusher wire, Dr.
Williams determined the coil had to be removed. See id. at 595. As Dr.
Williams attempted to pull the coil back into the microcatheter, he felt
“friction.” Id. at 596. He hoped, however, the coil would “swell a little bit
more [and] really lock into the microcatheter” so he could remove the entire
device. Id. at 597. However, when he removed the microcatheter, he
realized the stent had provided resistance against the coil, and the coil had
broken off and remained “floating in the basilar artery.” Id. at 599. The
doctor then used a third stent to secure the coil in the vertebral artery, and
abandoned the original procedure. See id. at 599-600. The decedent was
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3 During this time, someone on Dr. Williams’ team also placed a call to their
MicroVention representative for assistance. See N.T., 11/28/2017-
12/7/2017, at 593-594. MicroVention manufactured the Hydrocoil, as well as
the pusher wire and “V-grip” used to detach the coil from the pusher wire.
See Cross-Claim, 4/17/2013, at ¶ 26. It did not manufacture the
mircocatheter.
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transferred to the intensive care unit. Later that evening, however, her
aneurysm ruptured, and she died on August 11, 2006.
Administrators initiated this medical malpractice action by writ of
summons filed on August 5, 2008. In addition to Dr. Williams, Hospital and
Radiology, Administrators also listed MicroVention as a defendant. Although
MicroVention remained on the caption, Administrators’ complaint, filed on
November 29, 2012, included no claims against the company. Rather,
Administrators alleged Dr. Williams, in his capacity as an agent or employee
of Hospital and Radiology, committed medical malpractice with respect to his
care of the decedent. See Complaint, 11/29/2012. After filing an answer and
new matter, Hospital filed a cross-claim against MicroVention on April 17,
2013, asserting the company was negligent in its design and/or manufacture
of the HES-14 coil and detachment device. See Cross Claim, 4/17/2014.
The case proceeded to a jury trial commencing on November 29, 2017.
On December 7, 2017, the jury returned a verdict finding Dr. Williams was
not negligent in his care of the decedent. Administrators filed timely post-trial
motions, which the court denied on August 17, 2018. Dr. Williams filed a
praecipe for entry of judgment on August 30, 2018, and this timely appeal
followed.4
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4 On September 5, 2018, the trial court ordered the Administrators to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Administrators complied with the court’s directive, and filed a
concise statement on September 19, 2018.
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In their first issue on appeal, Administrators assert the trial court erred
when it permitted testimony and evidence regarding the decedent’s “alleged
consent to and understanding of the risks and complications of her …
aneurysm coiling procedure.” Administrators’ Brief at 34. Relying upon
Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), they maintain “evidence that a
patient affirmatively consented to treatment after being informed of the risks
of that treatment is generally irrelevant to a cause of action sounding in
medical negligence.” Administrators’ Brief at 34-35. While they recognize
some evidence regarding consent/risks may be relevant to establishing or
refuting negligence, Administrators contend the testimony and evidence
presented at trial herein should have been excluded. See id. at 35-36.
Because the evidence erroneously admitted in this case confused and misled
the jurors, Administrators insist they should be granted a new trial. See id.
at 42.
When considering a claim challenging the trial court’s ruling on the
admissibility of evidence, we are guided by the following:
Generally, relevant evidence is admissible and irrelevant evidence
is inadmissible. Evidence is relevant if it has “any tendency to
make a fact [of consequence] more or less probable than it would
be without the evidence.” Pa.R.E. 401. The threshold for
relevance is low given the liberal “any tendency”
prerequisite. Id. (emphasis added). Relevant evidence “is
admissible, except as otherwise provided by law.” Pa.R.E. 402.
One such exception is that 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.
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Decisions regarding the admissibility of evidence are vested in the
sound discretion of the trial court, and, as such, are reviewed for
an abuse of discretion. See Commonwealth v. Wright, 621 Pa.
446, 78 A.3d 1070, 1086 (2013). An abuse of discretion occurs
where the trial court “reaches a conclusion that overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or is the result of partiality, prejudice, bias, or ill
will.” Id. at 1080. To the degree the issue of whether the law
has been misapplied involves a purely legal question, it is
reviewed de novo. See Hoy v. Angelone, 554 Pa. 134, 720 A.2d
745, 750 (1998).
Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019). Furthermore,
“[a]n erroneous evidentiary ruling does not warrant a new trial unless it was
‘harmful or prejudicial to the complaining party.’” Flenke v. Huntington,
111 A.3d 1197, 1200 (Pa. Super. 2015) (quotation omitted).
In Brady, supra, the Pennsylvania Supreme Court held “in a trial on a
[medical] malpractice complaint that only asserts negligence, and not lack of
informed consent, evidence that a patient agreed to go forward with the
operation in spite of the risks of which she was informed is irrelevant and
should be excluded.” Brady, supra, 111 A.3d at at 1162-1163. Indeed, the
Court explained “assent to treatment does not amount to consent to
negligence, regardless of the enumerated risks and complications of which the
patient was made aware.” Id. at 1162. Nevertheless, the Brady Court
declined to adopt a “broad pronouncement” that such evidence is never
admissible in a medical negligence trial. Id. Rather, the Court recognized
some informed consent evidence “may be relevant to the question of
negligence if, for example the standard of care requires the doctor discuss
certain risks with the patient.” Id. at 1161. Under the particular facts of that
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case, however, the Court found the evidence permitted by the trial court,
which specifically focused on the patient’s signed consent forms, was
irrelevant “to the central question pertaining to whether the defendant’s
actions conformed to the governing standard of care,” and affirmed the order
granting a new trial. Id. at 1163.
Recently, the Supreme Court revisited this issue in Mitchell, supra.
Finding its decision in Brady had been misconstrued, the Mitchell Court
opined:
[O]ur Court in Brady spoke in terms of two discrete categories of
evidence: (1) informed-consent evidence; and (2) risks and
complications evidence. As to the first category, the Court plainly
held that manifestations of a patient’s actual, affirmative consent
to surgery, and the risks thereof, are irrelevant to the question of
negligence. Brady, 111 A.3d at 1162. Thus, where a patient’s
action is limited to medical negligence, and not a lack of informed
consent, all evidence that a patient agreed to go forward with the
operation, in spite of the risks of which she was informed, is
irrelevant and should be excluded. Id. at 1162-63.
However, the Court contrasted this with other types of evidence,
such as evidence of risks and complications. Indeed,
the Brady Court specifically rejected the Superior Court’s per
se rule that “all aspects of informed-consent information are
always ‘irrelevant in a medical malpractice case.’” Id. at 1162.
Rather, evidence of the risks and complications of a surgical
procedure, “in the form of either testimony or a list of such risks
as they appear on an informed-consent sheet” could be “relevant
in establishing the standard of care.” Id.9
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9 While the Brady Court offered that a list of such risks “as
they appear on an informed-consent sheet” may be relevant
with respect to the standard of care, we interpret this to
mean the generic offering of such risks, and not the
informed-consent sheet itself. Id. at 1161. Indeed, to offer
into evidence the informed-consent sheet itself would
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undermine the clear distinction made in Brady between
informed consent evidence and risks and complications
evidence, and such a proffer, absent special justification,
would unnecessarily risk the very dangers regarding a jury
receiving irrelevant informed consent evidence warned of
in Brady.
Mitchell, supra, 209 A.3d at 317. The Mitchell Court went on to explain the
types of risks and complications evidence that may be admissible in a
negligence only trial.
Determining what constitutes the standard of care is complicated,
involving considerations of anatomy and medical procedures, and
attention to a procedure's risks and benefits. Further, a range of
conduct may fall within the standard of care. While evidence that
a specific injury is a known risk or complication does not
definitively establish or disprove negligence, it is axiomatic that
complications may arise even in the absence of negligence. We
emphasize that “[t]he art of healing frequently calls for a
balancing of risks and dangers to a patient. Consequently, if
injury results from the course adopted, where no negligence or
fault is present, liability should not be imposed upon the institution
or agency actually seeking to assist the patient.” As a result,
risks and complications evidence may clarify the applicable
standard of care, and may be essential to provide, in this area, a
complete picture of that standard, as well as whether such
standard was breached. Stated another way, risks and
complications evidence may assist the jury in determining
whether the harm suffered was more or less likely to be the result
of negligence. Therefore, it may aid the jury in determining both
the standard of care and whether the physician’s conduct deviated
from the standard of care.
Id. at 318 (internal citations omitted). Contrary to Brady, the Mitchell Court
determined the evidence of potential risks and complications presented by the
defendants at the medical negligence trial in that case was admissible. See
id. at 323 (“[W]e find the trial court herein properly distinguished between
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informed-consent evidence, which it did not admit, and surgical risks and
complications evidence, which it admitted.”).
As for the case before us, prior to trial, Administrators filed a motion in
limine seeking to preclude any testimony regarding the decedent’s informed
consent to the risks of the surgery because the action alleged only medical
negligence.5 During argument on the motion, Dr. Williams’ attorney stated
he had “no problem with … agreeing to not presenting any testimony that the
injury was the result of a risk or complication or suggesting that during the
trial of the case.” See N.T., 11/28/2017-12/7/2017, at 13. Counsel for
Hospital agreed, but noted that it would be “appropriate to discuss what the
physicians discussed and generally what the risks and complications of the
procedure could be.” Id. at 14. Following further discussion, the court
granted Administrators’ motion “as worded” but recognized another ruling
might be necessary at trial. Id. at 18. The order that was entered, stated
the following:
AND NOW this 28th day of November, 2017, upon consideration of
the foregoing Motion in Limine to Exclude Testimony Regarding
Risks and Complications, it is hereby ORDERED, ADJUDGED, and
DECREED that said Motion is GRANTED and Defendants are
prohibited from presenting testimony that [the decedent’s] injury
was the result of a risk or complication of her procedure or
suggesting the same at any point during the trial of this case.
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5 We note Administrators’ motion in limine is included in the certified record.
However, it is stamped as filed on February 22, 2018, after trial occurred.
Nevertheless, none of the parties dispute the fact that Administrators did file
a motion in limine before trial, and the trial court referred to the motion during
pretrial arguments. See N.T., 11/28/2017-12/7/2017, at 10.
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Order, 11/28/2017. The court also handwrote on the order, “granted as per
the record.” Id.
Administrators contend Defendants violated the court’s order in the
following manner. First, during his direct examination, Dr. Williams explicitly
referred to the fact that the decedent signed an informed consent form:
Q. And prior to the procedure taking place, did you again meet
with the family or just see the patient in the operating room?
[Dr. Williams:] No. I came into the holding area. [The
decedent] was there. Her daughter was there. I believe she was
on her left side. I came in from her right. And I apologized. I
was sorry that there was such a delay, and I explained what
happened, and then we had her sign the informed consent
and she was prepared. She understood the risks.
N.T., 11/28/2017-12/7/2017, at 564 (emphasis supplied). Administrators’
counsel immediately objected, and requested a mistrial at sidebar. See id.
at 564-565. Dr. Willams’ counsel apologized, and conceded the doctor “went
way too far” in his answer, which was “not responsive to [counsel’s] question.”
Id. at 565. He suggested the court instruct the jury that informed consent is
not an issue in the case. See id. After further discussion, the trial court
denied the motion for mistrial, and gave the following cautionary instruction
to the jury:
Prior to the recess, actually prior to trial, okay, this Court
ordered that informed consent was not to be discussed at this trial.
Right before the recess, Dr. Williams inappropriately
referenced informed consent and also the patient’s understanding
of the procedural risks.
These comments are to be stricken from the record and to
be disregarded by the jury. Okay?
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Id. at 577.6
The trial court found, however, that Dr. Williams’ comment did not
mandate a new trial. We agree. The court acknowledged it was “concerned”
Dr. Williams’ specific reference to informed consent was “improper and
technically violated the [pretrial] order.” Trial Court Opinion, 12/7/2018, at
15. However, the court concluded Dr. Williams’ answer was “not a substantive
violation” of the court’s pretrial ruling because it was limited and did not
include any specific testimony regarding “risks and complications or whether
[the decedent] understood or fully consented to the procedure and actual risks
and complications[.]” Id. at 16. The court found the answer was
“unresponsive, unsolicited, and unexpected by everyone, … [and] did not
mislead or confuse the jury as to medical negligence.” Id. Nevertheless, the
court gave the jury a cautionary instruction, informing them that Dr. Williams
“inappropriately referenced informed consent” despite a prior ruling that it
was not to be discussed at trial. Id. at 17.
We find no reason to disagree. While Dr. Williams’ unresponsive answer
did violate the pretrial ruling, the trial court acted within its discretion when it
declined to grant a mistrial.7 As the court explained, Dr. Williams’ brief
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6 The court declined to instruct the jury that Dr. Williams violated an order of
court, as suggested by Administrators. See id. at 571-576.
7 See Bugosh v. Allen Refractories Co., 932 A.2d 901, 914–915 (Pa. Super.
2007) (“Generally, the granting or refusal of a mistrial is a matter within the
discretion of the trial judge, and his or her decision will not be overruled by
an appellate court except for manifest, clear, or palpable error amounting to
an abuse of discretion.”), appeal dismissed as improvidently granted, 971
A.2d 1228 (Pa. 2009).
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reference to informed consent was unresponsive to the question asked, and
the court issued a cautionary instruction, telling the jury Dr. Williams
“inappropriately referenced informed consent” when the court had previously
ordered that it was not to be discussed. Trial Court Opinion, 12/7/2018, at 17.
We agree this instruction was sufficient to cure any prejudice from Dr.
Williams’ remark.
Further, we find the facts in this case distinguishable from those in
Brady, supra, where the Supreme Court concluded a new trial was
warranted. In that case, the defendant doctor attempted to rebut the
allegations of negligence by focusing on the consent forms signed by the
plaintiff. The defendant doctor “questioned [the plaintiff] at length about her
having signed the consent forms, elicited [his own] testimony on the topic,
and made references to the fact of [the plaintiff’s] consent during []
summation[.]” Brady, supra, 111 A.3d at 1163. Conversely, the trial court
here found Dr. Williams’ comment did not constitute a flagrant or intentional
violation of the court’s pretrial ruling. Significantly, Defendants did not discuss
at length the signed consent forms, as in Brady, nor did Dr. Williams’ brief
mention of the words “informed consent” have an instant prejudicial effect.8
Accordingly, we agree the court’s cautionary instruction was sufficient to cure
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8 Compare Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007) (holding
defense counsel’s reference to cocaine metabolite in victim’s system at the
time of death was “flagrant and intentional use of this obviously prejudicial
word ‘cocaine’, in violation of the prior pre-trial preclusion order,” which
entitled plaintiff to a new trial), appeal denied, 959 A.2d 320 (Pa. 2008).
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any prejudice as a result of Dr. Williams’ unresponsive answer. See
Commonwealth v. Jones, 668 A.2d 491, 503-504 (Pa. 1995) (holding a jury
is presumed to follow a court’s cautionary instructions), cert. denied, 519 U.S.
826 (1996).
Second, Administrators point to Dr. Williams’ cross-examination of the
decedent’s daughter, Theresa Macurak, when counsel asked if the doctor
discussed “the risks of this particular procedure” with the decedent. Id. at
439. Counsel for Administrators objected, arguing that the question violated
the court’s pretrial “clear-cut ruling that the issues of risk and complications
in this procedure were off limits[.]” Id. at 440. Dr. Williams’ counsel asserted,
however, the question was in response to Administrators’ opening statement
in which Administrators told the jury “Dr. Williams did not tell [the decedent]
about certain things relating to her procedure.” Id. The court overruled the
objection. Counsel’s follow-up question simply inquired of Macurak whether
Dr. Williams “discuss[ed] with you about the risks of this procedure that your
mom was about to undergo?” Id. at 442. Marcurak responded, “He did.” Id.
There was no further testimony regarding specific risks or potential
complications.
With regard to this cross-examination, the trial court determined
defense counsel’s questioning did not elicit any testimony regarding specific
risks or complications of the procedure. See Trial Court Opinion, 12/7/2018,
at 12. Rather, the court found the questions were a proper response to
Administrators’ “opening statement, where it was alleged that Dr. Williams
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failed to tell the [d]ecedent ‘a certain thing’ about the procedure[,]” as well
as an inference from Macurak’s direct testimony that Dr. Williams told the
decedent the procedure was “easy.” Id. Therefore, the court concluded
Defendants’ brief questions to Macurak was an appropriate response.9 Again,
we agree.
Our review of the record reveals that, during their opening statement,
Administrators stated decedent’s aneurysm treated by Dr. Williams was “not
dangerous or life-threatening,” and the decedent “readily agreed” to undergo
the coiling procedure because “[i]t’s a much less invasive procedure” than
surgery, with a “much lower recovery time.” N.T., 11/28/2017-12/7/2017, at
181, 183. They argued that they did not fault him for recommending the
procedure, but rather, “we do fault him, and we fault him enormously for what
he did during the procedure; something he did that he never told [the
decedent] he was going to do.” Id. at 184. Thereafter, during Macurak’s
cross-examination, Dr. Williams’ counsel asked Macurak if Dr. Williams told
the decedent it would be an “easy” procedure, to which she responded, “I
don’t know if it was easy, but it was going to be much less invasive.” Id. at
439. Counsel then asked, generally: “[A]mong the things that [Dr. Williams]
discussed with you during that one-hour meeting … did he also discuss with
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9The court opined, “[t]his [argument] is a clear example of [Administrators]
wanting their cake and eating it too[.]” Trial Court Opinion, 12/7/2018, at 12.
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you and your mom the risks of this particular procedure?” Id. At that point,
Administrators’ counsel objected. Following a sidebar discussion, the court
overruled the objection, and counsel re-asked Macurak whether Dr. Williams
discussed “the risks of this procedure that your mom was about to undergo?”
Id. at 442. Macurak responded, “He did.” Id. When asked if she remembered
any specifics about the “percentages of risk,” Macurak responded that she did
not. Id. She did agree, however, that the decedent was impressed with the
amount of time Dr. Williams spent explaining the procedure to her, believing
he was “thorough.” Id. at 443. As evident from this excerpt, Defendants did
not elicit any testimony regarding the specific risks or complications discussed
with the decedent prior to the procedure. Accordingly, the trial court
concluded,
[d]efense counsel’s questioning was general in nature and limited
in scope and did not infer that the [d]ecedent’s injury or death
was caused by any known risk or complication with the procedure.
Defense counsel’s questioning did not elicit any testimony
enumerating any specific risk or complications but rather tended
to show that Dr. Williams had spent a significant amount of time
explaining to the [d]ecedent and her family her medical options
and the nature of the procedure without getting into informed
consent and specific risks and complications. This line of
questioning counters [Administrators’] opening statement, where
it was alleged that Dr. Williams failed to tell the [d]ecedent “a
certain thing” about the procedure … [as well as] an inference that
[Administrators’] counsel had made on direct that Dr. Williams
had told [] Macurak and her mom that it was an “easy” procedure.
Trial Court Opinion, 12/7/2018, at 12. We find no reason to disagree.
Third, Administrators insist Defendants violated the ruling when they
“presented to the jury” parts of the coiling device’s Instructions for Use (“IFU”)
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during the direct examination of Dr. Williams’ expert, Dr. Howard Dorne.
Administrators’ Brief at 41. The IFU included an area titled “Potential
Complications.” Dr. Williams’ counsel posed the following question to Dr.
Dorne:
Q. There’s an area down here called Potential Complications, and
I don’t want to get into all of this stuff, but essentially, the
MicroVention documents say, “The potential complications
include, but are not limited to.” Then it goes on a list of things,
including aneurysm rupture, et cetera, and it talks about difficult
– premature or difficult coil detachment, right?
A. Yes.
Q. Okay. So this is what you were talking about before where
you were aware that these things sometimes don’t detach or that
there’s difficult coil detachment?
A. Yes.
Q. And that’s right in the IFU, right?
A. Yes. It is.
N.T., 11/28/2017-12/7/2017, at 785-786. Administrators’ counsel did not
immediately object to this line of questioning, but rather renewed his motion
for a mistrial after Dr. Dorne’s direct examination. See id. at 803-804. The
court overruled the objection, stating, “I need to hear the objection at the
time it was done.” Id. at 804.
We agree with the court’s ruling at the time of trial that Administrators’
claim is waived because they failed to make a timely objection when the
document was shown to the jury. “In order to preserve an issue for appellate
review, an aggrieved party must make a timely and specific objection.” Allied
Elec. Supply Co. v. Roberts, 797 A.2d 362, 365 (Pa. Super. 2002), appeal
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denied, 808 A.2d 568 (Pa. 2002). Here, it was not until after the defense
completed its direct examination of Dr. Dorne that Administrators objected to
the fact Dr. Williams’ counsel “flashed in front of the jury the risk and
complications of this procedure[,]” claiming it violated the motion in limine.
N.T., 11/28/2017-12/7/2017, at 803. The court overruled the objection
stating, “frankly, I need to hear the objection at the time it was done.” Id. at
804. We find no error in this ruling.
Furthermore, the trial court also noted the “jury’s exposure to the IFU
section ‘Potential Complications’ was minimal,” and counsel referred only to
the possible complication of the coil’s failure to detach, “which was at the heart
of the Defendants’ defense.” Trial Court Opinion, 12/7/2018, at 14. As our
Supreme Court stated in Mitchell, “risks and complications evidence may
clarify the applicable standard of care, and may be essential to provide, in this
area, a complete picture of that standard, as well as whether such standard
was breached.” Mitchell, supra, 209 A.3d at 318. Here, Administrators
argued Dr. Williams acted negligently when he (1) used a combination of
equipment not recommended by the manufacturer, and (2) employed a
repositioning time that was not scientifically proven or accepted. See
Administrators’ Brief at 36. In addition to attempting to rebut those
allegations, Defendants asserted the real reason for the complication was the
coil’s failure to detach, which, according to the IFU, was a potential
complication. Accordingly, the trial court did not err in permitting this limited
testimony, and Administrators’ first claim warrants no relief.
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Next, Administrators contend the trial court erred when it granted
MicroVention’s motion for a compulsory nonsuit at the conclusion of trial, and
refused to submit a strict liability “malfunction theory” claim to the jury. See
Administrators’ Brief at 43.
As noted supra, Administrators did not assert any claims against
MicroVention in their complaint. However, Hospital filed a cross-claim against
the company, contending its HydroCoil and delivery system were defectively
designed and/or manufactured. See Cross Claim, 4/17/2013, at ¶ 31.
Counsel for both Dr. Williams and Hospital argued in their opening statements
that the product’s failure to detach was the cause of the complication that
occurred during the decedent’s coiling procedure, and not any actions taken
or decisions made by Dr. Williams. See N.T., 11/28/2017-12/7/2017, at 240-
245, 253-257. However, after Administrators presented their case-in-chief,
Defendants informed the trial court they had entered into a confidential
settlement agreement with MicroVention, and did not intend to present
evidence against the company at trial. See id. at 480-481. Microvention, in
turn, requested the court grant a compulsory nonsuit since Administrators
presented no evidence of a product defect during their case-in-chief. See id.
at 481. Administrators objected to the nonsuit, insisting they should receive
“the benefit of [the Hosptial’s] joinder[,]” because they could “theoretically …
establish a case against MicroVention during the cross-examination of Dr.
Williams.” Id. at 482. Ultimately, the trial court agreed with Administrators
that “a nonsuit at this time would be inappropriate.” Id. at 503. However,
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after Defendants presented their case-in-chief, MicroVention renewed its
motion for a compulsory nonsuit. See id. at 1017. The court took the matter
under advisement, and later granted that motion. See id. at 1042.
Our review of a court ruling granting a compulsory nonsuit is well-
established:
A trial court may enter a compulsory nonsuit on any and all
causes of action if, at the close of the plaintiff’s case against
all defendants on liability, the court finds that the plaintiff
has failed to establish a right to relief. Pa.R.C.P. No.
230.1(a), (c); see Commonwealth v. Janssen
Pharmaceutica, Inc., 607 Pa. 406, 8 A.3d 267, 269 n.2
(2010). Absent such finding, the trial court shall deny the
application for a nonsuit. On appeal, entry of
a compulsory nonsuit is affirmed only if no liability exists
based on the relevant facts and circumstances, with
appellant receiving “the benefit of every reasonable
inference and resolving all evidentiary conflicts in
[appellant’s] favor.” Agnew v. Dupler, 553 Pa. 33, 717
A.2d 519, 523 (1998). The compulsory nonsuit is otherwise
properly removed and the matter remanded for a new trial.
Scampone v. Highland Park Care Ctr., 618 Pa. 363, 57 A.3d
582, 595–96 (2012). The appellate court must review the
evidence to determine whether the trial court abused its discretion
or made an error of law. Barnes v. Alcoa, Inc., 145 A.3d 730,
735 (Pa. Super. 2016).
Baird v. Smiley, 169 A.3d 120, 124 (Pa. Super. 2017).
In the present case, Administrators argue the trial court erred in
removing the strict liability, product defect claim from the jury because, while
there was no direct evidence presented of a specific manufacturing defect in
the coiling system, there was sufficient evidence to support a “malfunction
theory” strict liability claim. Administrators’ Brief at 43.
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The Pennsylvania Supreme Court first adopted the malfunction theory
in Rogers v. Johnson & Johnson, 565 A.2d 751 (Pa. 1989). The
malfunction theory allows a plaintiff to prove a product defect with
circumstantial evidence, when the plaintiff “may not be able to prove the
precise nature of the defect.” Id. at 754.
[The malfunction theory] permits a plaintiff to prove a defect in a
product with evidence of the occurrence of a malfunction and with
evidence eliminating abnormal use or reasonable, secondary
causes for the malfunction. It thereby relieves the plaintiff from
demonstrating precisely the defect yet it permits the trier-of-fact
to infer one existed from evidence of the malfunction, of the
absence of abnormal use and of the absence of reasonable,
secondary causes.
Id. (internal citations omitted). Therefore, in order to present a prima facie
case of a manufacturing defect pursuant to the malfunction theory, a plaintiff
must establish: (1) “circumstantial evidence that the product had a defect,
even though the defect cannot be identified[;]” and (2) “evidence eliminating
abnormal use or reasonable, secondary causes” so that the jury can infer the
defect caused the injury. Barnish v. KWI Bldg. Co., 980 A.2d 535, 541 (Pa.
2009). The Supreme Court explained:
By point of comparison, a plaintiff does not present a prima
facie malfunction theory case if the plaintiff’s theory of the case
includes facts indicating that the plaintiff was using the product in
violation of the product directions and/or warnings. In such a
case, no reasonable jury could infer that an unspecified defect
caused a malfunction when the more likely explanation is the
abnormal use. Similarly, if the plaintiff’s theory of the case
includes another cause for the malfunction such as a improper
maintenance or substantial wear and tear from regular use, a
reasonable jury could not conclude that the product was defective
at the time of delivery when facts presented by the plaintiff
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suggest a cause for the malfunction unrelated to the alleged,
unspecified defect.
Id. at 542.
We will presume, for the sake of argument, there was sufficient
circumstantial evidence of the coiling system’s malfunction to satisfy the first
element of a malfunction theory claim.10 Dr. Williams himself testified the
device “didn’t work” because the coil “didn’t detach,” and encouraged the
decedent’s family to investigate MicroVention. See N.T., 11/28/2017-
12/7/2017, at 631-632, 635. Macurak testified that Dr. Williams told the
family “he was upset with the product, the trigger mechanism, and he did not
ever want to use it again[.]” Id. at 425. Expert witness, Dr. Dorne, testified
on direct examination that “these types of non detachments can and do occur
even when the surgeon does everything correctly.” Id. at 747. He also
acknowledged under cross-examination that he stated in his expert report,
the “root cause from the failure of [the decedent’s] brain aneurysm coiling
procedure was the catastrophic failure of detachment of the MicroVention
HydroCoil system.” Id. at 817-818. Furthermore, Administrators’ expert, Dr.
____________________________________________
10 We note the trial court concluded the evidence of the coil system’s failure
to detach was not “legally sufficient evidence of a malfunction” because it was
a rare, but foreseeable risk, of using the product. Trial Court Opinion,
12/7/2018, at 21 (“The fact that the coil failed to detach is not evidence of a
malfunction where non-detachment was a known possibility as outlined in the
manufacturer[’]s IFU.”).
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Charles Kerber, acknowledged that “[f]ailure to detach is generally a product
problem.”11 Id. at 372.
Nevertheless, as the trial court explains in its opinion, even when
plaintiffs present evidence of a product malfunction, they are still “required to
provide evidence eliminating abnormal use or reasonable secondary causes
for a malfunction” in order to present a prima facie case under the malfunction
theory. Trial Court Opinion, 12/7/2018, at 21. This is where Administrators’
claim fails. The court opined:
The record is clear that the [Administrators’] original theory in
their medical malpractice case was that Dr. Williams used the coil
in an abnormal way. Specifically, [their] expert Dr. Kerber
testified that Dr. Williams failed to follow the manufacturer’s
instructions when he chose to use the incorrect micro catheter
(sic) (SL-10) with the HES-14 HydroCoil. In addition, [the
Administrators’] other theory of negligence was that Dr. Williams
exceeded the scientifically proven and accepted repositioning time
for the combination of the equipment used, including the
HydroCoil. The evidence of other reasonable, secondary causes
or abnormal use was clearly presented in the [Administrators’]
medical malpractice cases and thus contradicts the establishment
of a prima facie malfunction case. Contrary to [the
Administrators’ concise] statement, the [Administrators’] own
proof of abnormal use or secondary causes, along with their lack
of proof of malfunction or product defect, precluded the jury from
considering this issue as a matter of law.
Id. at 22.
____________________________________________
11On direct examination, however, Dr. Kerber opined that the product at issue
did not malfunction. After inspecting the coiling system, Dr. Kerber concluded
“this coil detached” as it was designed to do. N.T., 11/28/2017-12/7/2017,
at 339. However, he opined Dr. Williams had an “error of perception” which
led to the “clinical misadventure.” Id. at 340. Dr. Kerber agreed it was “Dr.
Williams[’] knowing violation of the standard of care that caused this
misadventure and resulted in [the decedent’s] death[.]” Id.
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Administrators insist, however, the trial court erred in focusing solely on
their case-in-chief. Rather, they emphasize “Defendants’ defense to [their]
malpractice claim was that there was no misuse of the system at any time
during the coiling procedure, and that the system was being operated exactly
as anticipated and directed by the manufacturer.” Administrators’ Brief at 47.
They maintain:
If the jury believed the evidence presented by Dr. Williams, the
jury would conclude that Dr. Williams was not negligent, rather,
that the product malfunctioned. By so concluding the jury would
have eliminated the secondary cause cited by the trial court.
Id. at 48. Moreover, Administrators argue that pursuant to Rogers, “a
plaintiff is permitted to present to the jury a malfunction case and an
alternative theory of negligence[.]” Id. (emphasis in original).
We find Administrators have misconstrued the elements required to set
forth a prima facie malfunction theory case. In Barnish, the Supreme Court
made clear that in order to establish a malfunction theory claim, the plaintiff
(here, Administrators) must present a case “free of abnormal use and
secondary causes[.]” Barnish, supra, 980 A.2d at 542. See also Rogers,
supra, 565 A.2d at 755 (“[W]e believe that so long as the plaintiffs presented
a case-in-chief free of secondary causes which justified the inference of a
defect in the product, the jury was free to accept their scenario.”) (footnote
omitted). Indeed, the Court explained that if the plaintiff’s theory included
facts that the plaintiff was using the product in violation of its directions, or
the product malfunction could have been caused by improper maintenance,
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“no reasonable jury could infer that an unspecified defect caused a
malfunction” when either (1) “the more likely explanation is the abnormal use”
or (2) “the facts presented by the plaintiff suggest a cause for the malfunction
unrelated to the alleged, unspecified defect.” Barnish, supra, 980 A.2d at
542.
In the present case, Administrators’ theory of the case not only included
facts indicating the product was used in violation of its directions, their entire
case was built upon the premise that the coiling system did not malfunction,
but rather, Dr. Williams’ negligence led to the decedent’s death. See N.T.,
11/28/2017-12/7/2017, at 339-340. Indeed, Administrators’ expert witness,
Dr. Kerber, testified he inspected the coiling system at issue, and he was
confident it did detach. See id. at 339. Rather, in his opinion, Dr. Williams
violated the standard of care when he (1) combined the SL-10 microcatheter
with the HES-14 HydroCoil;12 (2) estimated a repositioning time that was not
scientifically proven; and (3) committed an “error of perception” when he
believed the coil did not detach. See id. at 315-315, 317-318, 340. As such,
because Administrators’ case was not “free of abnormal use and secondary
causes,” they did not establish a prima facie malfunction theory case sufficient
to proceed to the jury. Barnish, supra, 980 A.2d at 542. See also Schlier
____________________________________________
12 Dr. Kerber testified: “I think the surgeon picked the wrong device and an
incompatible device and got into trouble and couldn’t get out of trouble, and
that led to the death. It’s … really that simple.” N.T., 11/28/2017-12/7/2017,
at 305.
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v. Milwaukee Elec. Tool Corp., 835 F. Supp. 839 (E.D. Pa. 1993) (finding
plaintiff failed to establish prima facie case of product malfunction where
“[b]ased on plaintiff’s own evidence, there is at least one secondary cause
which could account for the accident[,]” that is, plaintiff noticed the saw at
issue was dirty and the blade was not new).13
Administrators insist, however, that their choice to pursue a malpractice
claim against Dr. Williams did not preclude them from also arguing a
malfunction theory claim to the jury. See Administrators’ Brief at 48. In fact,
they contend this “exact dichotomy of competing product liability and medical
malpractice theories” was addressed, and approved of, by the Court in
Rogers. Id. Indeed, the Rogers Court noted the Superior Court, in its earlier
opinion, had implied “a plaintiff who has presented a malfunction case will
always be precluded from proceeding upon an alternative theory of
negligence.” Rogers, supra, 565 A.2d at 755. Disagreeing with this
contention, the Court stated:
It is altogether possible that a plaintiff’s injuries could be caused
jointly by a defective product and also by third party negligence
so long as the negligence does not constitute a supervening cause
of the malfunction. “Given the occurrence of a malfunction, the
[alleged] negligence assumes legal significance only if it was a
superseding cause.... Questions of proximate causation should
normally be left to the finder of fact.”
____________________________________________
13“While we recognize federal district court cases are not binding on this court,
Pennsylvania appellate courts may utilize the analysis in those cases to the
extent we find them persuasive.” Braun v. Wal-Mart Stores, Inc., 24 A.3d
875, 954 (Pa. Super. 2011) (quotation omitted), aff'd, 106 A.3d 656 (Pa.
2014), cert. denied, 136 S.Ct. 1512 (U.S. 2016).
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Id. (quotation and footnote omitted).
While the Court’s comment seems to support Administrators’ claim, it is
important to consider it in the context of that case. In Rogers, the plaintiff
received severe burns on his leg following the application of a plaster splint to
immobilize a broken leg. See id. at 752. He initiated a claim against Johnson
& Johnson, the manufacturer of the plaster splint, as well as the hospital where
he had the procedure. At trial, the plaintiff “presented expert testimony
eliminating medical malpractice as the cause of the burns,” while Johnson &
Johnson presented expert testimony “indicating that the medical malpractice
of the doctors had caused the splint to overheat[.]” Id. at 753 (footnote
omitted). The jury returned a verdict for the plaintiff on the malfunction
theory claim. The Superior Court reversed on appeal, holding that because
Johnson & Johnson presented sufficient evidence of the doctor’s negligence,
the malfunction theory should not have been submitted to the jury because
the plaintiff did not eliminate all reasonable, secondary causes for the
malfunction. See id. As noted above, the Supreme Court reversed the
Superior Court’s ruling, holding:
The Superior Court erred because it considered incompatible the
plaintiffs’ evidence of malfunction in light of the defendant,
Johnson & Johnson’s, evidence of a reasonable secondary cause.
It rendered impossible the ability of the plaintiffs to negate
secondary causes suggested by Johnson & Johnson’s evidence and
essentially required a directed verdict in favor of Johnson &
Johnson. Contrarily, we believe that so long as the plaintiffs
presented a case-in-chief free of secondary causes which justified
the inference of a defect in the product, the jury was free to accept
their scenario.
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Rogers, supra, 565 A.2d at 755 (footnote omitted).
In the present case, however, the plaintiffs (Administrators)
proceeded only on a claim of medical malpractice, and attempted to “back
door” a malfunction theory claim through the Defendants’ case-in-chief. This
is certainly not the same situation as in Rogers, where the “alternative theory
of negligence” was presented by the defendant. Id. at 755. Indeed, in a
footnote, the Rogers Court explained:
In this instance, for example, if the jury had chosen to believe
Johnson & Johnson’s evidence that [the doctor’s] failure to heed
[the plaintiff’s] complaints regarding a sensation of warmth
constituted negligence such negligence would not supervene the
cause of [the plaintiff’s] injuries, namely, the defective material of
which the splint was made.
Id. at 755 n.7. Our research has uncovered no cases in which a plaintiff
attempted to establish a malfunction theory case through the defendants’
case-in-chief, while pursuing only an alternative theory of liability in his or
her case-in-chief. Indeed, the malfunction theory allows the jury to “infer the
existence of a defect from the fact of a malfunction.” Barnish, supra, 980
A.2d at 541. However, as the Supreme Court explained in Barnish, if the
plaintiff presents evidence that the product was used “in violation of the
product directions and/or warnings” or “the plaintiff’s theory of the case
includes another cause for the malfunction,” a reasonable jury could not “infer
that an unspecified defect caused a malfunction when the more likely
explanation is the abnormal use” or other cause. Id. Here, Administrators’
theory of case was that Dr. Williams’ pairing of the SL-10 microcatheter with
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the HES-14 HydroCoil, as well as his estimated repositioning time frame,
caused the complication which led to the decedent’s death. Accordingly, we
find no error in the trial court’s decision to grant MicroVention a compulsory
nonsuit at the conclusion of trial.14
In their third, and final, issue, Administrators contend they are entitled
to a new trial because the trial court erroneously permitted Defendants to
present cumulative expert testimony. See Administrators’ Brief at 50. Prior
to trial, Administrators sought a motion in limine to preclude Hospital and Dr.
Williams from presenting separate expert witnesses on the relevant standard
____________________________________________
14 In her Concurring and Dissenting Memorandum, Judge Kunselman asserts
the Supreme Court’s decision in Rogers, supra, is controlling, and our
attempt to distinguish it on its facts is erroneous. See Concurring and
Dissenting Memorandum, at 6-8. Indeed, Judge Kunselman sees no
difference as to whether the plaintiff presents the malfunction theory or
negligence theory; accordingly, so long as the party that presents the
malfunction theory is free of secondary causes, “the claim of product
malfunction should have gone to the jury.” Id. at 6. We disagree. The
malfunction theory of product liability is “reminiscent of the logic of a res ipsa
loquitur case,” and may be pursued only when the plaintiff eliminates all
other causes for the injury. Barnish, supra, 980 A.2d at 541 (“By
demonstrating the absence of other potential causes for the malfunction, the
plaintiff allows the jury to infer the existence of defect from the fact of a
malfunction.”). Although Judge Kunselman believes which party pursues the
theory is irrelevant, we find the language of the case law clear. Moreover,
while the Rogers Court did not specifically state the “plaintiff’s ability to
recover under these alternative theories of liability was limited only to cases
where the plaintiff filed the products liability claim,” see Concurring and
Dissenting Memorandum, at 8, we decline to expand application of the limited
malfunction theory to include the facts in this case, where the plaintiff’s expert
opined the product did not malfunction.
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of care.15 See N.T., 11/28/2017-12/7/2017, at 19. Hospital asserted that,
because they are separate parties, they “should have a right to an expert of
their choosing.” Id. at 20. The court agreed, and denied Administrators’
motion.
On appeal, Administrators argue the court should not have allowed both
Hospital and Dr. Williams to present separate expert witness testimony at trial
because they agreed to present a joint defense. See Administrators’ Brief at
50. Administrators contend both experts - Dr. Howard Dorne for Dr. Williams
and Dr. Alexander Coon for Hospital -
reviewed the same set of documents and records and … arrived at
the same conclusions (i.e. [Dr.] Williams was not negligent and
met the applicable standard of care at all times during the course
of the coiling procedure he performed on [the decedent] and [Dr.]
Williams demonstrated proper neuro-interventional techniques
and judgment during the entire course of the procedure).
Id. While Admininstrators acknolwedge Dr. Williams and Hospital were
separate parties, they insist that, because there were no independent
allegations against Hospital,16 “any expert testimony offered by the Hospital
was in defense of [Dr.] Williams and was duplicative, cumulative, and
prejudicial.” Id. at 51. Furthermore, they emphasize they were prejudiced
____________________________________________
15While a written motion in limine is not included in the certified record, the
parties discussed this motion during pretrial arguments. See N.T.,
11/28/2017-12/7/2017, at 18-20.
16Indeed, Administrators’ complaint alleged that Hospital and Radiology were
“vicariously liable” for Dr. Williams’ negligence. Complaint, 11/29/2012, at ¶
25.
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by the court’s ruling because counsel for both Dr. Williams and Hospital
implied during their closing arguments that their three experts (which included
Dr. Williams himself) “must be given greater weight than the sparse testimony
presented by [Administrators’] one single witness.” Id. at 53. Accordingly,
Administrators argue the court erred in failing to award them a new trial.
As noted supra, “[d]ecisions regarding the admissibility of evidence are
vested in the sound discretion of the trial court, and, as such, are reviewed
for an abuse of discretion.” Mitchell, supra, 209 A.3d at 314. Pursuant to
Pennsylvania Rule of Evidence 403, a trial court “may exclude relevant
evidence 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. Cumulative evidence has been defined as,
“additional evidence of the same character as existing evidence
and that supports a fact established by the existing evidence.” …
Evidence that bolsters, or strengthens, existing evidence is
not cumulative evidence, but rather is corroborative evidence.
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007)
(quotation omitted), appeal denied, 944 A.2d 756 (Pa. 2008). See also Klein
v. Aronchick, 85 A.3d 487, 501 n.7 (Pa. Super. 2014) (citing G.D.M.,
supra), appeal denied, 104 A.3d 5 (Pa. 2014).
In Klein, supra, a panel of this Court found no error when a trial court
permitted the defendants to present “three different expert witnesses on
causation” because, while the experts “ultimately reached the same
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conclusion, … they approached the issue from different clinical perspectives.”
Id. at 501 n.7. Similarly, in Whitaker v. Frankford Hosp. of City of
Philadelphia, 984 A.2d 512 (Pa. Super. 2009), a panel of this Court found
the trial court did not abuse its discretion when it permitted the plaintiffs to
present two expert witnesses who each “touched briefly upon the subject
matter that was thoroughly covered by the other expert witness.” Id. at 522-
523. The panel noted “[e]ach expert witness clearly and unequivocally
established the necessary component of liability in his area of expertise[,]”
and the “slightly cumulative nature of the intersecting testimony was not so
harmful” that it required a new trial. Id. at 522-523.
In the present case, the trial court defended its ruling by explaining,
“while both experts did cover some of the same subject matter, they did so
from entirely different perspectives.” Trial Court Opinion, 12/7/2018, at 23.
The court opined:
Dr. Dorne[’s] and Dr. Coon’s testimony is not cumulative as they
were from different clinical backgrounds and thus testified from
different perspectives. Dr. Dorne was verified as an expert as an
interventional and neurointerventional radiologist. He was board
certified in that field. Dr. Coon on the other hand testified as an
expert in endovascular neurosurgery. He is board certified in that
field and acts as the director of Endovascular Surgery at Johns
Hopkins. As such, while the doctors may have provided some
overlapping testimony, they testified from different expertise,
much like the doctors in the Klein case.
While this Court does recognize that some of the testimony
by both Dr. Dorne and Dr. Coon was duplicative, they also testified
separately regarding a number of items. Dr. Dorne defined the
standard of care and noted that it does not require the physician
to build in extra time during a procedure for the possibility of non-
detachment. Furthermore, Dr. Dorne testified that Dr. Williams
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appropriately reduced the reposition time for the Hydro coil from
five to three minutes in [d]ecedent’s procedure. Dr. Coon did not
opine specifically on those two points.
Dr. Coon also testified regarding a different subject matter
than Dr. Dorne. Dr. Coon provided testimony regarding the
general process of placing a catheter through the stents and into
the aneurysm called “sequential stenting”. Additionally, Dr. Coon
discussed the post-operative notes as well as the location of
[d]ecedents’s second aneur[y]sm, both topics not covered by Dr.
Dorne.
As such, this Court finds that it did not err in permitting the
testimony of both Dr. Dorne and Dr. Coon. In previously denying
[Administrators’] Motion in Limine and now denying
[Administrators’] request for Post-trial relief, this Court finds their
testimony non-cumulative. The doctors were called by separate
parties, who had separate interests and liability in this case.
Furthermore, while the Court notes that some of the testimony
provided by Dr. Dorne and Dr. Coon covered the same subject
matter, the case law in Pennsylvania allows that, and scrutiny of
each of their testimony and qualifications shows that they testified
as doctors of different specialties, and covered certain topics
where the other did not. Thus it was proper for this Court to allow
it.
Id. at 24-25 (record citations omitted).
Our review of the record reveals no basis upon which to disagree with
the trial court. Although we recognize Hospital’s liability was only derivative
of Dr. Williams’ liability, as separate parties with separate counsel, they should
be permitted to choose their own experts. None of the statutory or case law
cited by Administrators contradict that principle. Nevertheless, we recognize
a trial court may exclude evidence that is cumulative. Here, however, as the
court opined, each expert testified regarding a topic that was not addressed
by the other expert. Accordingly, no relief is warranted, and we rest on the
court’s well-reasoned basis.
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Accordingly, because we conclude Administrators are entitled to no relief
on the claims raised in this appeal, we affirm the judgment entered in favor
of Defendants.
Judgment affirmed.
Judge Musmanno joins the memorandum.
Judge Kunselman files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/26/2019
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