In Re: Risperdal Litigation Appeal of: W.C. ( 2017 )

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2017 PA Super 356IN RE: RISPERDAL LITIGATION : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
W.C. :
:
Appellant :
:
:
v. :
: No. 2451 EDA 2015
:
JANSSEN PHARMACEUTICALS, INC., :
JOHNSON & JOHNSON COMPANY, :
JANSSEN RESEARCH AND
DEVELOPMENT, LLC
Appeal from the Judgment Entered June 30, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2013, No. 01803,
March Term, 2013, No. 01803
BEFORE: PANELLA, J., RANSOM, J., and FITZGERALD, J.
OPINION BY PANELLA, J. FILED NOVEMBER 13, 2017
Appellant, W.C., appeals from the judgment entered following a jury
trial in the Philadelphia County Court of Common Pleas in favor of Appellees,
Janssen Pharmaceuticals, Inc., Johnson & Johnson Company and Janssen
Research and Development, LLC.1 Appellant argues the trial court abused its
____________________________________________
 Former Justice specially assigned to the Superior Court.
1The caption in the notice of appeal listed M.C., Appellant’s mother, as an
Appellant and Excerpta Medica, Incorporated, and Elsevier, Inc. as
Appellees. See Notice of Appeal, 7/29/15. However, W.C., Janssen
Pharmaceuticals, Inc., Johnson & Johnson Company and Janssen Research
and Development, LLC, appear to be the only parties to the instant appeal.
(Footnote Continued Next Page)
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discretion in denying his request for a new trial due to erroneous evidentiary
rulings at trial. We reverse and remand for a new trial limited to the issues
of causation and damages.
Appellees developed and manufactured risperidone, an atypical
antipsychotic, for the treatment of schizophrenia in adult patients. In 1993,
the Food and Drug Administration granted approval to Appellees to market
risperidone for this purpose. Appellees brought their product to market
under the brand name Risperdal.
In February 2002, at the age of six, Appellant was prescribed Risperdal
for the treatment of attention deficit disorder, attention deficit hyperactive
disorder, and oppositional defiant disorder.2 He remained on Risperdal,
periodically, until March 2007. At that point Appellant’s physician
discontinued Appellant’s use of the medication. At some time between 2006
and 2008, when Appellant was ten to twelve years old, Appellant’s mother,
M.C. (“Mrs. C”), alleged she observed Appellant suffering from unexplained
(Footnote Continued) _______________________
See Appellant’s Brief; Appellee’s Brief; Stipulation to Discontinue, 4/16/15.
We have corrected the caption accordingly.
2 See U.S. Food & Drug Administration, Understanding Unapproved Use of
Approved Drugs “Off Label,” available at
https://www.fda.gov/forpatients/other/offlabel/default.htm (last visited
August 24, 2017).
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weight gain and gynecomastia.3 However, at that time, neither Appellant nor
Mrs. C informed Appellant’s medical providers of his condition.
On March 14, 2013, Appellant commenced this action by filing a
complaint. Appellant’s complaint was filed as part of the In re Risperdal®
mass tort program, and incorporated allegations found in the master
complaint.4 Appellant alleged his Risperdal usage caused his gynecomastia,
and raised claims against Appellees of (I) negligence; (II) negligent design
defect; (III) fraud; (IV) strict liability failure to warn; (V) strict liability
design defect; (VI) breach of express warranty; (VII) breach of implied
warranty; (VIII) violation of Pennsylvania’s Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”), 73 P.S. § 201, et. seq.; (IX) unfair
and deceptive trade practices; (X) conspiracy; and (XI) punitive damages.
Mrs. C asserted claims for medical expenses incurred by a parent and loss of
consortium. Appellees denied all of Appellant’s and Mrs. C’s allegations.
Appellees later filed a motion for partial summary judgment on the
master docket disputing the validity of the punitive damages claim. The trial
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3 Merriam-Webster’s online dictionary defines gynecomastia as “excessive
development of the breast in the male.” Available at http://merriam-
webster.com/dictionary/gynecomastia (last visited August 23, 2017).
4 The In re Risperdal mass tort program was formed on May 26, 2010, as
a repository for the filings of pleadings, motions, orders, and other
documents common to all Risperdal cases in the Philadelphia County Court
of Common Pleas. See Case Management Order 1, 5/26/10, In Re
Risperdal® Litigation, March Term 2010 No. 296.
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court granted Appellees’ motion and dismissed all plaintiffs’ claims for
punitive damages. The trial court then denied reconsideration.
Appellees filed a motion for summary judgment as to each count of
Appellant’s and Mrs. C’s complaint. Appellant and Mrs. C responded,
asserting that their claims were legally and factually sound, and therefore
not subject to dismissal on summary judgment. The trial court granted
Appellees’ motion in part, dismissing all claims against Appellees with the
exception of Appellant’s negligence claim.
Appellant’s jury trial for his remaining negligence claim began on
February 20, 2015. Appellant offered the testimony of eleven witnesses and
introduced approximately 200 exhibits in support of his contention that he
developed gynecomastia as a result of Appellees’ failure to notify physicians,
health care providers, and the FDA of the significant risk of gynecomastia
associated with the use of Risperdal in pre-pubescent males.
Pertinent to the instant appeal, Appellant offered the expert testimony
of Mark Solomon, M.D. He opined Appellant suffered from gynecomastia and
developed gynecomastia solely due to Risperdal ingestion during childhood.
See N.T., Trial, 3/3/15, Morning Session, at 37-38, 58. At the request of
Appellant’s counsel, Dr. Solomon performed a physical examination of
Appellant’s chest in front of the jury to demonstrate how he determined
Appellant was suffering from gynecomastia rather than chest enlargement
due to obesity. See id., at 39-35. During this examination, Appellant’s
counsel asked Dr. Solomon to analogize the amount of breast tissue
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Appellant had to either a softball or tennis ball. See id., at 43. Dr. Solomon
concluded that Appellant was suffering from the presence of breast tissue
approximately the size of a tennis ball. See id., at 44. On cross-
examination, Dr. Solomon was asked numerous questions about Appellant’s
visit to the emergency room in March 2013 for chest pain. Dr. Solomon
opined that a chest examination performed in the emergency department for
chest pain would not necessarily have led to the discovery of Appellant’s
gynecomastia. See id., at 105-113.
Through the introduction of seven witnesses and over eighty exhibits,
Appellees contested every aspect of Appellant’s negligence claim. Appellees
denied that Risperdal usage correlated to a significant risk of gynecomastia.
They further disputed that they had negligently failed to inform physicians,
health care providers, and the FDA of this significant risk. Further, and
relevant to the instant appeal, Appellees heavily contested Appellant’s claim
that he developed gynecomastia as a result of Risperdal usage. Rather,
Appellees argued Appellant never suffered from gynecomastia, and that any
chest enlargement was a result of weight gain.
In support of this contention, Appellees presented the videotaped
deposition of Michelle Baker, a physician’s assistant who treated Appellant
from 2005 until 2013. See N.T., Trial, 2/25/15, Morning Session, at 20
(playing deposition tape from 7/28/14); Def. Ex. 19, Baker Deposition,
7/28/14, at 21:8-101:21. Ms. Baker opined Appellant’s breast enlargement
was caused by his rapid weight gain, rather than his Risperdal usage. See
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id., at 101:5-101:21. Additionally, Appellees presented the expert testimony
of Dr. Adelaide S. Robb and Dr. Mark Moltich. See N.T., Trial, 3/9/15,
Morning Session, at 15-112; N.T., Trial, 3/9/15, Afternoon Session, at 5-72;
N.T., Trial, 3/10/15, Morning Session, 15-149; N.T., Trial, 3/10/15,
Afternoon Session, at 5-43. Dr. Moltich testified that he did not believe that
Risperdal usage could have caused gynecomastia in Appellant. See N.T.,
Trial, 3/10/15, Morning Session, at 86. Further, both doctors testified that
they would expect a chest examination of a male to reveal the existence of
breast tissue the size of a tennis ball. See N.T., Trial, 3/9/15, Morning
Session, at 54-55; N.T., Trial, 3/10/15, Morning Session, at 66.
Following the close of Appellees’ case, Appellees informed the trial
court they were planning to display two tennis balls and a Power Point
presentation during their closing argument. Appellant objected to the use of
both visual aids. However, the trial court found that both the tennis balls and
Power Point presentation were proper visual aids and allowed both to be
displayed during closing arguments.
The jury returned with a verdict in favor of Appellees. While the jury
found Appellees negligent for failing to provide an adequate warning to
Appellant’s prescribing physicians concerning the risk of gynecomastia
associated with Risperdal use, they failed to find that Appellees’ negligence
caused Appellant’s gynecomastia.
Appellant and Mrs. C filed post-trial motions requesting a new trial, in
which they challenged the grant of partial summary judgment. Appellant
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also contested the evidentiary rulings during the jury trial. The court denied
the post-trial motions. This timely appeal follows.
On appeal, Appellant presents the following issues5 for our review,
which we have reordered for ease of disposition:
1. … [D]id the trial court abuse its discretion by permitting
[Appellees’] counsel to display two tennis balls during his
closing?
2. Did the trial court abuse its discretion by permitting
[Appellees] to use in closing a 75 slide pre-prepared Power
Point presentation: (a) that was not introduced into evidence
during [Appellees’] case-in-chief; (b) that was not properly
authenticated as a fair and adequate representation of that
which it purported to represent (i.e., the evidence at trial);
(c) that was not properly founded upon the evidence of
record; and (d) whose effect was highly prejudicial to
[Appellant]?
3. Did the trial court abuse its discretion by admitting into
evidence testimony from [Appellees’] causation experts Drs.
Robb and Molitch, in which they opined without a factual basis
and beyond the fair scope of their expert reports that
[Appellant’s] gynecomastia was not caused by Risperdal
____________________________________________
5 In their post-trial motions, Appellant and Mrs. C raised claims of error
related to the trial court’s decision to dismiss all of Mrs. C’s claims and 10 of
Appellant’s claims on summary judgment, as well as additional alleged
errors at trial, i.e., permitting Appellees to use a Power Point in opening
statements, permitting Appellees’ counsel to violate its time limitation during
closing statements, and permitting Appellees’ counsel to argue that
Appellant fraudulently brought claims during closing statements. See Post-
Trial Motion, 5/20/15, at ¶¶ 17-28, 33, 35, 37, 41-42. However, Appellant
appears to have abandoned these claims by failing to provide any discussion
or citation to authority in his appellate brief. Further, Mrs. C appears to have
dropped her appeal entirely as she does not challenge the trial court’s
decision to dismiss both of her claims. Thus, we will not consider these
issues.
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because otherwise a physical examination of [Appellant] in
March 2013 would have revealed breasts the size of “tennis
balls,” and the examination did not reveal “tennis ball”-sized
breasts?
4. Michelle Baker was a physician’s assistant who was offered at
trial only to present fact testimony about her treatment of
[Appellant]. Did the trial court abuse its discretion by
admitting into evidence the deposition testimony of Ms. Baker
designated by [Appellees], in which she offered an expert
opinion that weight gain was the cause of [Appellant’s]
gynecomastia?
Appellant’s Brief, at 5 (suggested answers omitted). Based upon these
alleged errors, Appellant contends that a new trial is warranted.
Our standard of review is as follows:
We will reverse a trial court’s decision to deny a motion for a
new trial only if the trial court abused its discretion. We must
review the court’s alleged mistake and determine whether the
court erred, and, if so, whether the error resulted in prejudice
necessitating a new trial. If the alleged mistake concerned an
error of law, we will scrutinize for legal error. Once we determine
whether an error occurred, we must then determine whether the
trial court abused its discretion in ruling on the request for a new
trial. An abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable, arbitrary,
or capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.
Paliometros v. Loyola, 932 A.2d 128, 132 (Pa. Super. 2007) (internal
citations and quotation marks omitted). See also Knowles v. Levan, 15
A.3d 504, 507 (Pa. Super. 2011).
In his first two arguments, Appellant contends the trial court abused
its discretion by permitting Appellees’ counsel to utilize improper visual aids
during closing arguments. Appellant raises several different arguments
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based upon the trial court’s decision to allow Appellees’ counsel to present
two tennis balls and a Power Point presentation to the jury during their
summation. See Appellant’s Brief, at 47-55. Appellant maintains the use of
these items was inappropriate because neither the tennis balls nor the Power
Point presentation was entered into evidence during Appellees’ case-in chief.
See id., at 47, 51. Further, as the Power Point presentation was not entered
into evidence during the trial, Appellant argues the trial court failed to
recognize that the individual slides were never authenticated. See id., at 51-
52. Appellant thus asserts that individual slides of the Power Point
presentation were misleading and unreliable. See id., at 52- 55.
Our Supreme Court has held that during opening and closing
statements,
so long as no liberties are taken with the evidence, a lawyer is
free to draw such inferences as he wishes from the testimony
and to present his case in the light most suited to advance his
cause and win a verdict in the jury box. However, this latitude
does not include discussion of facts not in evidence which are
prejudicial to the opposing party. In general, any prejudicial
remarks made by counsel during argument can be handled
within the broad powers and discretion of the trial judge and his
actions will not be disturbed on appeal unless there is an obvious
abuse of discretion.
Hyrcza v. W. Penn Allegheny Health Sys., Inc., 978 A.2d 961, 977 (Pa.
Super. 2009) (internal citations, brackets, and quotation marks omitted).
In appropriate cases, counsel is permitted to use visual aids during
opening and closing statements to assist the jury in understanding the
evidence. See Commonwealth v. Rickbaugh, 706 A.2d 826, 837 (Pa.
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Super. 1997); Commonwealth v. Pelzer, 612 A.2d 407, 412 (Pa. 1992).
An item may be used as a visual aid, even if not admitted into evidence, as
long as the trial court concludes that it accurately reflects the testimony
elicited as evidence during trial. See Commonwealth v. Twilley, 612 A.2d
1056, 1060 (Pa. Super. 1992) (citations omitted). Ultimately, permission to
use visual aids during closing arguments “is within the sound discretion of
the trial judge.” Pelzer, 612 A.2d at 412.
Here, the trial court determined it was appropriate to allow Appellees’
counsel to use both the tennis balls and Power Point presentation as visual
aids during closing arguments because both items accurately reflected the
trial testimony. See Trial Court Opinion, 6/30/15, at 11, 13. We agree.
Appellant’s own expert witness, Dr. Solomon, testified Appellant’s
gynecomastia, caused by Risperdal usage, led to breast tissue the size of a
tennis ball. See N.T., Trial, 3/3/15, Morning Session, at 44. Further, our
review of the Power Point presentation reveals that the content of each of
the 75 slides accurately reflects the testimony elicited during the trial.
Contrary to Appellant’s claims, Appellees’ counsel did not argue facts that
were not in evidence—the slides were merely another iteration of the same
proof that was presented orally.
Additionally, as pointed out by Appellant in his first argument, the
Power Point presentation itself is not evidence; it was merely a visual aid,
used by Appellees’ counsel to assist the jury sort through the glut of
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testimony elicited during a month-long trial. Authentication of each slide was
not required. See Pa.R.E. 901(a). See also Hon. Daniel J. Anders, Ohlbaum
on the Pennsylvania Rules of Evidence, § 901.05 (2016 ed.) As both the
tennis balls and Power Point presentation accurately reflected the evidence
adduced at trial, it was within the discretion of the trial court to allow the
display of both. We see no reason to disturb that discretion here.
Finally, Appellant contends that even if the Power Point presentation
was properly utilized during the closing argument, the trial court erred by
denying his request to review Appellees’ Power Point presentation the day
before closing arguments. See Appellant’s Brief, at 51. Appellant asserts
that this ruling deprived him of the chance to prepare an effective rebuttal,
and thus, denied him a fair trial. See id. However, Appellant can point to no
rule requiring opposing counsel reveal materials from closing argument prior
to trial. Moreover, as discussed at length above, the Power Point
presentation was nothing more than a visual summation of the evidence
adduced at trial. Appellant should have been prepared to dispute all
evidence, favorable or unfavorable, presented during trial. Thus, this
argument merits no relief.
In his final two issues on appeal, Appellant challenges the trial court’s
evidentiary rulings.
When we review a ruling on the admission or exclusion of
evidence, including the testimony of an expert witness, our
standard is well-established and very narrow. These matters are
within the sound discretion of the trial court, and we may
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reverse only upon a showing of abuse of discretion or error of
law. An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. In addition, to constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Freed v. Geisinger Medical Center, 910 A.2d 68, 72 (Pa. Super. 2006)
(internal citations, brackets, and quotation marks omitted).
Appellant contends the trial court erred by permitting Dr. Robb and Dr.
Moltich, to testify that any chest examination of Appellant after he claimed
to have developed breasts would have revealed tennis ball-sized breasts.
See Appellant’s Brief, at 5, 39-47. In support of his contention of trial court
error, Appellant offers two arguments. First, Appellant claims Dr. Robb and
Dr. Moltich offered their opinion without the proper factual basis for their
testimony. See id., at 42-44. Second, Appellant alleges this testimony
should have been excluded as improperly exceeding the fair scope of Dr.
Robb’s and Dr. Moltich’s pretrial expert reports. See id.
Turning to the first argument, “expert testimony is incompetent if it
lacks an adequate basis in fact.” Helpin v. Trustees of the University of
Pennsylvania, 969 A.2d 601, 617 (Pa. Super. 2009) (citation omitted). This
means that an expert’s testimony must be “based on more than mere
personal belief,” and “must be supported by reference to facts, testimony or
empirical data.” Snizavich v. Rohm & Haas, Co., 83 A.3d 191, 195 (Pa.
Super. 2013) (citations omitted). While the facts supporting an expert
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opinion elicited at trial may be facts reasonably relied upon by experts in his
particular field, an expert may also base his opinion on “[t]he facts or data
in the case … that the expert has been made aware of or personally
observed.” Pa.R.E. 703. In order to ensure that an expert’s opinion is
properly supported, an expert must “state the facts or data on which the
opinion is based.” Pa.R.E. 705. Examining counsel may ask the expert to
assume the truth of testimony the expert has heard or read, or pose a
hypothetical question to the expert. See id., Comment.
This argument rests upon Appellant’s contention the record did not
include sufficient evidence of the procedure surrounding his emergency room
visit and chest examination for Appellees’ experts to offer testimony “as to
whether, as a factual matter, [Appellant] ha[d] breasts in March 2013.”
Appellant’s Brief, at 41-42. However, our review of the record reveals that
Appellant misconstrues both the nature of the opinions offered by Dr. Robb
and Dr. Moltich as well as the factual basis underlying their opinions.
The testimony Appellant challenges was elicited through hypothetical
questions posed by defense counsel as follows:
[Defense Counsel]: Doctor, it has been suggested to the jury
that [Appellant] had two tennis balls for breasts. Doctor, if you
were performing a physical examination of a child, and let’s say
that they had their shirt on or even a sweater, can you conceive
of you not noticing two tennis balls on this young boy’s chest?
[Appellant’s Counsel]: Objection for about six reasons.
The court: Overruled.
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[Dr. Robb]: That would be impossible to miss, if they were the
size of tennis balls, even with a sweatshirt on. And if I were
examining the chest – when you think about it, all of you have
had a physical examination and had the doctor listen to your
heart, it’s on the left side of your chest. It would be impossible
to miss a tennis ball as you’re listening to the four areas of the
heart where you would listen on the left side of your chest.
N.T., Trial, 3/9/15, Morning Session, at 54-55.
[Defense Counsel]: Doctor, are you familiar with Dr. Solomon’s
testimony about [Appellant’s] breast tissue?
[Dr. Moltich]: I am.
[Defense Counsel]: And, as an endocrinologist, would you expect
that if a patient has tennis-ball sized breast tissue, it’s
something that would be noticed and recorded by the examiner?
[Dr. Moltich]: Oh, I certainly would.
N.T., Trial, 3/10/15, Morning Session, at 66.
Despite Appellant’s contention, neither of these expert opinions can be
reasonably construed as factual testimony that Appellant did not have
breasts as a result of gynecomastia when he was admitted to the emergency
department in March 2013. Both doctors gave expert opinions based upon
hypothetical situations posed to them by Appellees’ counsel. Further, these
hypothetical questions were based upon facts of record. Appellant’s expert,
Dr. Solomon, testified that Appellant had breasts the size of “tennis balls”
and that a typical chest examination, such as the one performed on
Appellant in the emergency department in March 2013, would likely miss the
existence of these growths. Thus, we find this argument unavailing.
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Next, Appellant asserts the trial court should have excluded Dr. Robb’s
and Dr. Moltich’s opinion testimony as exceeding the scope of their expert
reports. See Appellant’s Brief, at 43-44. Specifically, Appellant claims both
expert reports were limited to opinions concerning the validity of Appellant’s
claim of Risperdal-induced gynecomastia. Thus, he argues any testimony
regarding the ability to discover breast tissue during a chest examination
exceeded the permissible scope. See id.Pennsylvania Rules of Civil Procedure require that an expert’s
testimony at trial be limited to the fair scope of his deposition
testimony or pretrial report:
To the extent that the facts known or opinion held by
an expert have been developed in discovery
proceedings under subdivision (a)(1) or (2) of this
rule, the direct testimony of the expert at the trial
may not be inconsistent with or go beyond the fair
scope of his or her testimony in the discovery
proceedings as set forth in the deposition, answer to
an interrogatory, separate report, or supplement
thereto ….
Pa.R.C.P. 4003.5(c) (emphasis supplied).
...
[I]n 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 circumstances of the case, the
discrepancy between the expert’s pre-trial 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.
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Bainhauer v. Lehigh Valley Hospital, 834 A.2d 1146, 1150-1151 (Pa.
Super. 2003) (citations and some emphasis omitted; brackets in original).
However, in situations where a plaintiff introduces certain evidence in
his case in chief, he cannot later bar the opposition from disputing it. See
Leaphart v. Whiting Corp., 564 A.2d 165, 171 (Pa. Super. 1989). “Thus,
an expert's opinion offered in response to other testimony presented at trial
need not be addressed in the expert's report.” Daddona v. Thind, 891 A.2d
786, 806 (Pa. Cmwlth. 2006) (citing Earlin v. Cravetz, 399 A.2d 783 (Pa.
Super. 1979)) (additional citation omitted).
Here, while neither Dr. Robb nor Dr. Moltich opined about the ability of
a medical provider to detect breast tissue in their expert reports, both of the
contested opinions were offered directly in response to Dr. Solomon’s expert
testimony that a typical chest examination would miss the existence of
tennis ball-sized breasts. Thus, it did not need to be in their expert reports
in order to be properly admitted. We have already determined that both Dr.
Robb and Dr. Moltich’s testimony amounted to properly supported expert
testimony. As such, Appellant’s third issue on appeal merits no relief.
In his final issue on appeal, Appellant contests the trial court’s decision
to allow Michelle Baker, a physician’s assistant who treated Appellant from
2005 until 2013, to testify as to the cause of Appellant’s gynecomastia. See
Appellant’s Brief, at 32-40. Appellant contends Baker’s testimony constituted
improper expert testimony, as Baker was not qualified as an expert witness
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or designated as one pursuant to Pennsylvania Rule of Civil Procedure
4003.5, prior to trial. See id. Conversely, both the trial court and Appellees
assert Baker’s testimony did not cross over into expert testimony, and as
such, it was properly admitted as lay testimony of a fact witness. See Trial
Court Opinion, at 6-8; Appellees’ Brief, at 14.
Pennsylvania Rule of Evidence 701 provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is (a) rationally based on a
witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701.
Rule 702 mandates that
[i]f scientific, technical or other specialized knowledge beyond
that possessed by a layperson will assist the trier of fact to
understand the evidence or determine a fact in issue, a witness
qualified as an expert by knowledge, skill, expertise, training or
education may testify thereto in the form of an opinion or
otherwise.
Pa.R.E. 702.
Further, it is generally accepted that “[t]he cause and effect of a
physical condition lies in a field of knowledge in which only a medical expert
can give a competent opinion…. [Without experts] we feel that the jury could
have no basis other than conjecture, surmise or speculation upon which to
consider causation.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d
1140, 1149 (Pa. 2003) (citations omitted; brackets and ellipses in original).
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Here, Appellees do not dispute that they did not designate Baker as an
expert or disclose any expert reports prior to trial. See Appellees’ Brief, at
19. However, Appellees contend Baker’s testimony constituted permissible
lay opinion testimony as it was rationally based on her perception of
Appellant during treatment. See id., at 14. If Baker’s testimony only
revealed this information, it would have been permissible lay witness
testimony.
However, during the taped deposition, Appellees elicited the following
response from Baker:
[Appellees’ Counsel]: And all of those weights we just reviewed
were after Risperdal use had discontinued, correct?
[Baker]: Yes, correct.
[Appellees’ counsel]: [Baker], do you plan to offer any opinion
as to – if indeed [Appellant] has chest growth, do you plan to
offer any opinion as to the cause of that chest growth?
[Baker]: The extreme weight gain, I would say.
[Appellees’ counsel]: And what is the basis for that opinion?
[Baker]: Because he hasn’t been on Risperdal since, we said,
’07, so if he was taken off the Risperdal, the prolactin [6] would
have returned to normal.
[Appellant’s counsel]: I’m going to enter an objection to this
whole series of questions and answers.
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6 “Prolactin … is a protein that is best known for its role in enabling
mammals, usually females, to produce milk.” Prolactin. Wikipedia, available
at https://en.wikipedia.org/wiki/Prolactin (last visited September 28, 2017).
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She’s not an expert. She’s not going to offer any opinions.
She’s not called as an expert. She’s a fact witness.
And you really shouldn’t be asking her any opinion
questions.
N.T., Trial, 2/25/15, Morning Session, at 20 (playing Baker Deposition
recorded on 7/28/14) (emphasis added); Def. Ex. 19, Baker Deposition,
7/28/14, at 101:5-101:21.
Despite Appellees’ claims, in order to reach this conclusion, Baker was
required to draw upon specialized medical knowledge concerning causation
in order to opine that Appellant’s breast growth was caused by weight gain.
The effect of Risperdal on a hormone such as prolactin is clearly a subject
that requires specialized knowledge. This testimony clearly required the use
of “scientific, technical, or other specialized knowledge within the scope of
Rule 702.” Pa.R.E. 701. Thus, we conclude that the trial court erred in
determining that Baker’s testimony did not constitute expert testimony.
Appellees counter that even if Baker’s testimony constituted expert
testimony, Baker, as a physician’s assistant, was qualified to testify as both
an expert in causation and a fact witness. See Appellees’ Brief, at 14-16.
The qualification of an expert witness rests with the sound discretion of
the trial court. See Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super.
2016). “The standard for qualifying an expert witness is a liberal one; the
witness need only have a reasonable pretension to specialized knowledge on
a subject for which expert testimony is admissible.” Commonwealth v.
Kinard, 95 A.3d 279, 288 (Pa. Super. 2014) (en banc) (citation omitted). A
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witness who is not a medical doctor may be qualified as an expert witness
regarding medical issues. See Miller v. Brass Rail Tavern, Inc., 664 A.2d
525, 528-529 (Pa. 1995).
This Court has recognized that the rules governing expert and lay
testimony do not preclude a single witness from testifying as both a lay
witness and an expert witness in the same trial. See Commonwealth v.
Huggins, 68 A.3d 962, 967 (Pa. Super. 2013).
The witness’ association to the evidence controls the scope of
admissible evidence that he or she may offer. In order to avoid
jury confusion, the trial court should direct the [proffering party]
to clarify when testimony, given in the form of an opinion, was
based upon expert knowledge, as opposed to testimony
regarding the facts as personally perceived…. [S]hould a single
witness testify in dual capacities, the trial court must instruct the
jurors regarding lay versus expert testimony and tell them that
they are solely responsible for making credibility determinations.
Commonwealth v. Yocolano, 169 A.3d 47, 62 (Pa. Super. 2017) (some
brackets added and omitted; quotation marks and citations omitted).
We recognize that Baker, as a licensed physician’s assistant, had
qualifications that could have met the standard for an expert witness.
However, because the trial court believed Baker’s testimony did not amount
to expert testimony, the trial court failed to determine if Baker was qualified
as an expert witness. Further, the trial court, believing Baker’s testimony to
be fact testimony, did not ensure that the jury was able to separate Baker’s
expert testimony from her lay testimony. See id. As such, we find the trial
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court abused its discretion and erred as a matter of law in permitting a lay
witness to offer an expert opinion at trial.
Appellant argues that the effect of this erroneous ruling deprived him
of a fair trial and that he should be granted a new trial on the issues of
causation and damages. See Appellant’s Brief, at 58. We are constrained to
agree.
Throughout the entire trial, the parties relied on the opinions of
experts as to the cause of Appellant’s gynecomastia. Appellant’s experts
opined that Appellant’s gynecomastia occurred before 2013 and was caused
by Risperdal ingestion. Appellees’ experts opined that weight gain rather
than Risperdal ingestion caused Appellant to appear to have gynecomastia.
Baker’s testimony, in which she opined that Appellant’s weight gain, rather
than his Risperdal usage, caused him to appear to have gynecomastia, was
the only causation testimony offered by a witness who personally treated
Appellant.
This opinion was offered without the proper vetting and safeguards
surrounding expert testimony. Further, this opinion was introduced into
evidence due to the trial court’s improper application of the law, which is
clearly an abuse of discretion. Therefore, we find that the trial court abused
its discretion in denying Appellant’s request for a new trial, limited to the
issues of causation and damages.
Judgment reversed. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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