Crump, K. v. Sokolow, C. ( 2023 )

J-A10040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
KHALEED CRUMP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CRAIG SOKOLOW AND FRAN : No. 1750 EDA 2022
GOLDSLEGER :
Appeal from the Judgment Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200801434
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 24, 2023
Plaintiff/Appellant Khaleed Crump (“Appellant”) appeals from the
judgment entered in the Court of Common Pleas of Philadelphia County at the
conclusion of his personal injury trial after the jury found
Defendants/Appellees Craig Sokolow and Fran Goldsleger (“Appellees”) were
negligent, but that such negligence caused no compensable injury to
Appellant. After careful consideration, we affirm.
The present case arises out of a motor vehicle collision that occurred
during the early afternoon of January 26, 2020, in the City of Philadelphia,
when Appellee Sokolow drove a motor vehicle at approximately 25 miles per
hour into the vehicle of Appellant. On February 11, 2020, Appellant sought
medical treatment for what was diagnosed as a knee contusion, which,
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* Former Justice specially assigned to the Superior Court.
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Appellant reported, had occurred when his knee struck the steering column of
his vehicle during the motor vehicle accident in question.
On February 18, 2020, Appellant began a prescribed “course of therapy
consisting of ultrasound, EGS manipulation and a structured therapeutic
exercise program to tolerance.” Nevertheless, Appellant subsequently
complained to his treating physician of progressively worsening right knee
pain, stiffness, and clicking since the time of the accident. Plaintiff’s Trial
Exhibit A, Report of Geoffrey W. Temple, D.O., 6/14/20, at 1-2.
On April 28, 2020, Appellant underwent an MRI scan of the right knee.
According to the interpreting radiologist, the MRI scan was “unremarkable,”
as it showed all internal structures, ligaments, and tendons were intact. Id.
Dr. Temple reviewed the MRI report and images and concurred with the
radiologist’s impression. Id.
On June 3, 2020, Dr. Temple reassessed Appellant. In addition to
sharing his impression of the normal MRI, he performed motion testing of
Appellant’s right knee. His report indicated a normal range-of-motion without
restrictions, the absence of effusion (fluid that causes swelling) or instability,
and a demonstration of full strength at the joint, which he rated a “5/5.” Id.
Dr. Temple noted further:
[Appellant] had anterior knee pain on deep palpation. . . . I do
feel he suffered a deep knee contusion at that time [of the
accident] and responded to the therapy provided with occasional
pain. I released him from my active care at that time. He was
asked to continue his own home exercises and return to the office
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if there was any significant change in the residual pattern of
symptoms around which he learned to adjust his daily activities.
...
The diagnosis in my report are directly related to the trauma of
January 26, 2020. He has a guarded-good prognosis. . . . Also,
he has suffered shearing forces to the myoligamentous supporting
elements of the right knee which will pre-dispose him to joint
laxity, joint instability, and also subsequent trauma.
While he has improved maximally, he has not recovered
completely. . . . He suffered a significant impairment of bodily
function. . . . Again, he has a guarded-good prognosis. The
opinions in my report are rendered within a reasonable degree of
medical certainty.
Id. at 2.
On July 30, 2020, Appellant sought the care of Clifton Burt, M.D., to
address what he reported as his continuing right knee pain. Dr. Burt noted a
negative Lachman Test (to assess for ACL injury), no medial or collateral
instability with the joint, and negative MRI findings. Plaintiff’s Trial Exhibit C,
Report of Clifton Burt, M.D., 7/30/20, at 1. Nevertheless, given the duration
of Appellant’s complaints of pain symptoms, Dr. Burt concluded that it was
“medically necessary to perform right knee Geniculate nerve radiofrequency
ablation.” Id.
As discussed, infra, an ablation of the geniculate nerves involves
inserting into the knee three needles, one placed at each nerve, and delivering
through the needles a radiofrequency wave that generates sufficient heat,
approximately 115 degrees Fahrenheit, to burn the nerve and stop it from
transmitting a pain signal to the brain. At the time of the procedure, Appellant
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reported a 40% improvement in his pain level for 30 minutes. Dr. Burt thus
made the decision to proceed with the radiofrequency ablation at the same
level. Id.
On August 18, 2020, Appellant commenced the present personal injury
action by filing a complaint in negligence, alleging that Appellee Craig Sokolow
negligently or carelessly caused the parties’ motor vehicle collision, which
resulted in serious and permanent personal injuries to, among other things,
his right knee. During discovery, Appellant filed an expert medical report
prepared on September 15, 2020, by his proposed medical expert, Lance
Yarus, D.O.
In his report, Dr. Yarus explained that although he had not personally
seen or examined Appellant, he had reviewed Appellant’s relevant medical
history and reports, which, he indicated, had described that Appellant suffered
an auto collision-related contusion, synovitis, and enthesopathy of the right
knee that continues to cause him pain. Among the conclusions he drew from
his records review was that Appellant suffered a “suspected internal
derangement with structural tear, either meniscus, or cruciate, or both with
cartilage surface injury of right knee.” Plaintiff’s Trial Exhibit B, Report of
Lance Yarus, D.O., 9/15/20, at 3. Dependent on this conclusion were the
“guarded” prognosis he assigned Appellant and his medical opinion regarding
related future costs of medical care Appellant would incur. Id. at 4. His report
indicated that he offered this and all conclusions to a reasonable degree of
medical certainty. Id. at 5.
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On April 18, 2022, Appellees filed a Motion in Limine to preclude Dr.
Yarus from testifying it was his expert medical opinion that Appellant had a
“suspected” internal derangement of the right knee. Specifically, Appellees
contended that a “suspected” injury was not an injury that a medical expert
can find to within a reasonable degree of medical certainty. This was
particularly so, Appellees argued, given the MRI imaging and accompanying
radiologist’s report, with which all reviewing physicians concurred, indicating
a normal, “unremarkable” study showing all internal structures of the knee to
be “intact.”
On May 19, 2022, the trial court entered an order granting in part
Appellees’ Motion in Limine. Pursuant to the order, neither Dr. Yarus’ opinion
regarding the suspected internal derangement nor his opinion about any
future medical treatments or costs of said treatments were admissible at trial.
On May 20, 2022, Appellant filed a Motion for Reconsideration based on
Dr. Yarus’ videotaped deposition. Therein, Appellant maintained that Dr.
Yarus “testified, specifically, that he believes Plaintiff to have internal
derangement based on Plaintiff’s symptomology, that is, the locking, popping,
giving way, and stiffness of which Plaintiff complained, and that [Dr. Yarus]
was ‘certain’ and ‘not guessing’ about the internal derangement.” Motion for
Reconsideration, 2/20/22, at 3.
On May 23, 2020, the trial court heard oral arguments on Appellant’s
Motion for Reconsideration, and agreed with Appellees’ position that because
Dr. Yarus had based his testimony regarding a continuing injury and the future
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costs associated with such injury on his suspicion that Appellant has internal
derangement of the knee, his medical opinion on both was inadmissible.
Accordingly, the trial court denied Appellants’ motion for reconsideration of
the May 19, 2022, order.
Also challenged by way of a motion in limine was Dr. Yarus’ use as of a
stock photograph of a knee undergoing genicular nerve ablation as an
illustrative aid to his testimony. The trial court asked if the photograph
accurately depicted the procedure Appellant underwent, and counsel for
Appellant confirmed that it was. Appellees objected to the admission of the
photograph, arguing that it had not been produced during discovery despite
Appellant’s request for such demonstrative evidence. After entertaining
arguments on the point, the trial court granted Appellees’ motion, noting the
demonstrative had not been available to Appellees’ doctor or any other expert.
N.T. at 16.
Trial commenced on May 23, 2020, and featured the testimony of fact
witnesses Appellant and Appellee Craig Sokolow, and a video replay of Dr.
Yarus’ deposition testimony. On May 24, 2022, the jury returned a verdict in
favor of Appellees, finding Defendant Craig Sokolow negligent but that his
negligence was not a factual cause of injury to Plaintiff/Appellant. N.T.
5/24/22, at 69; Verdict Sheet, p. 1.
On June 3, 2022, Appellant timely filed a Motion for Post-Trial Relief in
which he charged the trial court had erred and abused its discretion in
precluding part of Dr. Yarus’ deposition testimony and the stock photograph
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depicting a close up of a knee ablation patient’s knee with three needles
inserted. The trial court denied the motion on June 23, 2022. This timely
appeal followed.
Appellant raises the following issues for this Court’s consideration:
1. Whether the trial court abused its discretion and otherwise
committed an error of law when it precluded [Appellant’s]
medical expert, Dr Lance Yarus, D.O., from testifying that
[Appellant] suffered internal derangement of the right knee as
a result of the subject accident, and subsequently denied
[Plaintff/Appellant’s] Motion for Reconsideration of same?
2. Whether the trial court abused its discretion and otherwise
committed an error of law when it precluded [Appellant’s]
medical expert, Dr. Lance Yarus, from testifying that
[Appellant] would require future medical treatment for injuries
sustained in the subject accident, and subsequently denied
[Appellant’s] Motion for Reconsideration of same?
3. Whether the trial court abused its discretion and otherwise
committed an error of law when it precluded [Appellant’s]
medical expert, Dr. Lance Yarus, D.O., from presenting a
demonstrative photograph of the procedure [Appellant]
underwent following the subject accident?
4. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly denied
[Appellant’s] Motion for Post-Trial Relief by way of Order dated
June 23, 2022, and Supporting Opinion dated January 4, 2023?
Brief for Appellant, at 8.
At the center of Appellant’s first two issues is his challenge to the trial
court’s ruling that precluded Dr. Yarus from offering at trial his opinion that
the car collision in question caused Appellant to suffer an internal
derangement of the right knee. As discussed, preclusion was based on the
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trial court’s determination that Dr. Yarus failed to support his opinion with an
adequate degree of medical certainty when he could opine only that the injury
was “suspected.”
It is well-settled that in Pennsylvania, “our Supreme Court has
emphasized [that an] expert must base the substance of her opinion on a
reasonable degree of certainty instead of mere speculation.”
Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015), appeal
denied, 125 A.3d 1198 (Pa. 2015) (citation omitted); Accord,
Commonwealth v. White, 285 A.3d 912 (Pa. Super. Ct. 2022), appeal
denied, No. 263 EAL 2022, 2023 WL 2579748 (Pa. Mar. 21, 2023). On this
point, we have long observed:
an expert need not testify with absolute certainty or rule out all
possible causes of a condition. [Mitzelfelt v. Kamrin, 584 A.2d
888, 891 (Pa. 1990)]. Likewise, the testimony need not be
expressed in precisely the language used to enunciate the legal
standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968)
(medical testimony need not conform to precise statutory
definitions). Rather, expert testimony should be reviewed in its
entirety to assess whether it expresses the requisite degree of
medical certainty. McCann v. Amy Joy Donut Shops, 325 Pa.
Super. 340, 343–44, 472 A.2d 1149, 1151 (1984) (en banc “An
expert fails this standard of certainty if he testifies ‘that the alleged
cause “possibly”, or “could have” led to the result, that it “could
very properly account” for the result, or even that it was “very
highly probable” that it caused the result.’” Kravinsky v. Glover,
263 Pa.Super. 8, 21, 396 A.2d 1349, 1356 (1979) (citations
omitted).
Hoffman v. Brandywine Hosp., 661 A.2d 397, 402 (Pa. Super. 1995)
(superseded by statute on other grounds).
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Here, Dr. Yarus opined during his deposition testimony that both
Appellant’s enduring subjective complaints of pain, clicking, and stiffness and
medical records describing a contusion of his right knee at initial presentation
caused Dr. Yarus to “suspect” a derangement of the knee’s internal structures.
Deposition, 5/11/22, at 23-24. He acknowledged Appellant’s normal MRI
study of April 28, 2020, which, he admitted, “didn’t show any evidence . . . of
disruption of the internal structures” and showed that the ligaments, menisci,
and tendons all “were intact”, but he opined that the normal MRI did not
eliminate reason to pursue Appellant’s persistent complaints. N.T. at 27.
Dr. Yarus continued, “[S]ometimes MRIs don’t show you, uh,
structurally or morphologically what may be causing a person’s symptoms.
“When people present with . . . locking, popping, giving way, stiffness, things
that [Appellant] described, and after treatment,[1] he has a continuing of those
symptoms, those are internal derangement until proven otherwise.” N.T. at
27. Dr. Yarus opined that with respect to the value of diagnostic studies,
“[w]hether the MRI is normal or not doesn’t really matter in the big picture[,]”
and he dismissed the notion that repeating such imaging would be of any
value. N.T. at 35.
Instead, he maintained that consideration of Appellant’s post-collision
history coupled with a diagnostic arthroscopy was required to discern the
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1 Elsewhere in his deposition testimony, Dr. Yaris discussed his review of
records from “Premier Pain & Rehab”, which indicated that Appellant
underwent a July 30, 2020, genicular block or ablation procedure of three
nerves in his knee to reduce pain. N.T. at 28-29.
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injury in this case. “[I]t’s the [patient] history that drives the . . . ability to -
- to recommend care[,]” he opined, and “[y]ou have to look directly with the
scope; that’s what it’s for.” N.T. at 27-28. [T]he scope is a diagnostic tool.”
N.T. at 35. In other words, Dr. Yarus opined that only an arthroscopy would
reveal whether Appellant sustained internal derangement of the knee
consisting of a structural tear with cartilage injury. He concluded his direct
examination by affirming that he offered this opinion within a reasonable
degree of medical certainty. N.T. at 36.
The degree of certainty regarding his opinion of Appellant’s injury,
therefore, became the subject of cross-examination, during which Dr. Yarus
conceded that in his written report he described his findings as “suspected
internal derangement.” N.T. at 36.2 He confirmed further that his findings
derived from Appellant’s persistent subjective complaints both documented in
medical records and conveyed to him during a phone conversation, as he
neither met nor examined Appellant in person. He stated, “I believe it’s there
because of his symptoms[,]” N.T. at 41, and he also agreed that Appellant’s
subjective complaints were the source of such recorded symptoms.
The speculative nature of Dr. Yarus’ inferences, however, were
underscored when he opined that only an arthroscopic evaluation of the knee
would reveal the presence and extent of Appellant’s suspected injury.
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2 His complete entry stated, “Suspected internal derangement with structural
tear, either meniscus or cruciate or both, with cartilage surface injury of the
right knee.” N.T. at 37.
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Specifically, when asked on redirect examination to explain the need for
arthroscopic evaluation of the knee, he offered that Appellant’s persistent
complaints after reasonable care are the reason to do the scope, regardless
of the MRI, and the presence and extent of the injury was “a part of the
equation, uh, that, uh, will not be understood until a scope is placed in the
knee. There has to be a reason for his continuing complaints and his inability
to function.” N.T. at 47.
Under our cited jurisprudence, an expert’s suspicion of an injury does
not meet the requisite threshold of rendering an expert opinion to a
reasonable degree of medical certainty. Here, Dr. Yarus admitted he only
suspected Appellant had internal derangement of the knee because Appellant
continues to complain of pain and suffered a contusion and swelling of the
knee at the time of the accident. This despite an MRI that showed all
components of the knee to be intact and a June 3, 2020, examination in which
Dr. Temple found Appellant’s right knee displayed a normal range of motion
without restrictions, full strength (rated “5/5”), no sign of instability, and no
evidence of effusion. Dr. Yarus conceded it was his opinion, moreover, that it
is impossible to discern whether an internal derangement exists without
conducting an arthroscopy, which has not been performed in this case.
Confronted with this evidence, therefore, the trial court appropriately ruled
Dr. Yarus’ opinion was speculative and, thus, inadmissible at trial.
Accordingly, Appellant’s first two issues are devoid of merit.
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The remaining two issues coalesce to assert that the trial court erred
and abused its discretion when it deemed inadmissible a stock photograph of
a genicular nerve ablation procedure that Dr. Yarus used as an illustration
during his videotaped testimony discussing the same procedure performed on
Appellant. At the deposition of Dr. Yarus, counsel for Appellees raised an
unfair surprise objection to the picture when it was presented, partly because
Appellant had not produced or disclosed it previously during discovery, as
required under Pa.R.C.P. 4009.11, in response to Appellee’s requests for
production of documents.3 The objection was preserved for trial court review,
and Dr. Yarus continued his deposition testimony in which he referred to the
photograph to aid his explanation of Appellant’s knee ablation procedure.
The trial court entertained argument on Appellees’ motion in limine to
exclude the photograph in question. Counsel for Appellees reiterated that
Appellant failed to produce the photograph during discovery and, thus, unfairly
surprised Appellees when Dr. Yarus referred to it during his expert testimony.
Counsel for Appellees emphasized that “a surgery photograph is very
prejudicial. It shows a person having surgery on their knee. It’s obviously
not the plaintiff. It was never produced. I don’t think that that picture should
be shown to the jury.” N.T., 5/23/22, at 12.
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3 During discovery, Appellant’s “Request for Production of Documents” asked
for “Any and all documents . . . which Plaintiff(s) plan to have marked for
identification at a deposition or trial, introduce into evidence at a deposition
or trial, or about which Plaintiff(s) plan to question a witness at a deposition
or trial. R. 543.
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Counsel for Appellant countered that Dr. Yarus explained Appellant
underwent a genicular nerve ablation procedure to his knee, and then used a
stock picture of such a procedure to assist the jury in understanding what such
a procedure entails. Indeed, the question initially posed to Dr. Yarus was,
“Do you have a model or anything to show us to indicate what the procedure
was, where it was performed?” N.T. at 12.
Counsel argued that the picture was “literally a [photograph] of
somebody’s knee with the needles in it to show what the ablation procedure
was.” N.T. at 13. He continued, “This is a demonstrative Dr. Yarus used. It’s
aiding the jury to better understand the procedure that Mr. Crump went
through, the ablation. That’s all it was. It’s not a moving film of anything.
It’s just a picture of a knee to show what the ablation was. . . . I believe the
standard is if it aids the jury to better understand what the doctor is talking
about, it’s admissible. I would argue it’s admissible.” N.T. at 13. When asked
by the trial court if the photograph was a true and accurate representation of
Appellant’s procedure, counsel for Appellant reiterated that Dr. Yarus showed
the photograph while explaining what Appellant underwent. N.T. at 14.
The trial court reserved ruling until it viewed the picture for unduly
graphic or irrelevant content. N.T. at 14. While waiting for the videographer
to retrieve the photograph, counsel for Appellees repeated his objection that
the photo was never produced in discovery, was of a different person, and
was a “picture of a man with iodine all over his knee and surgery and medical
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instruments.”4 N.T. at 14. To his latter objection, counsel for Appellees added
that the photograph depicted a surgical procedure “clearly” performed in a
hospital, which would be materially different from the outpatient procedure
Appellant described in his testimony. Counsel for Appellant replied accurately,
“You can’t tell that. It’s just a picture of a knee.” N.T. at 15.
After reviewing the photograph, the trial court sustained Appellees’
objection, agreeing with Appellees’ initial position that Appellant’s failure to
produce the photograph pursuant to Appellees’ discovery request unfairly
handicapped Appellees in the preparation of their defense. Specifically, the
trial court explained, “Dr. Yarus used a demonstrative during his testimony
that hadn’t been used with their doctor or any other expert. And as a result,
I sustained the objection that it not be presented to the jury.” N.T. at 16.
With regard to discovery disputes, we have explained:
Preliminarily, we note the “‘[t]he purpose of the discovery rules is
to prevent surprise and unfairness and to allow a fair trial on the
merits.’” Pennsylvania Rule of Civil Procedure 4019 provides for
sanctions if a party fails to provide discovery. “The decision
whether to sanction a party, and if so the severity of such
sanction, is vested in the sound discretion of the trial court.” When
a court refuses to impose sanctions, we must review the evidence
to determine whether the court abused its discretion.
Dominick v. Hanson, 753 A.2d 824, 826 (Pa.Super. 2000) (internal citations
omitted). According to Pa.R.C.P. 4019, a trial court may “make an appropriate
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4 As discussed more fully, infra, the photograph in question is a close-up of a
patient’s knee in which three long needles have been inserted. As explained
by Dr. Yarus, a radiofrequency wave then is directed through the needle to
the targeted nerve.
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order” if a party “fails to make discovery or to obey an order of court
respecting discovery.” Pa.R .C.P. 4019(a)(1)(viii). “[T]he decision whether
to sanction a party for a discovery violation and the severity of such a sanction
are matters vested in the sound discretion of the trial court.” Philadelphia
Contributionship Ins. Co. v. Shapiro, 798 A.2d 781, 784 (Pa. Super.
2002). . . . This Court has held that when a party has failed to produce
evidence during discovery, an appropriate sanction is prohibiting admission of
the evidence at trial. Duncan v. Mercy Catholic Med. Ctr. of Southeastern
Pa., 813 A.2d 6, 12 (Pa. Super. 2002).
As noted above, the trial court had entered a Case Management Order
during discovery requiring Appellant’s counsel to identify all exhibits that were
to be used at trial. Within the court’s order was the admonition, “Counsel
should expect any exhibit not listed to be precluded at trial.” There is no
dispute that the picture in question was neither submitted during discovery
nor included in Appellant’s pre-trial memorandum but was, instead, first
presented at the videotaped deposition of Dr. Yarus to be used at trial.
Referencing, inter alia, that Appellees’ expert had been deprived of the
opportunity to examine the photograph, the trial court acted on its prior
admonition and ruled the photograph was inadmissible at trial. We discern no
error with the trial court’s decision to enforce the terms of its Case
Management Order.
Even assuming, arguendo, that any unfair surprise was de minimus and,
thus, provided insufficient reason to preclude use of the photograph, we would
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decline to find reversible error in this instance where Appellant’s medical
expert, Dr. Yarus, provided the jury with a detailed and comprehensive
explanation of the procedure.
Appellant argues that the purpose of introducing the photograph of the
ablation procedure was to show he chose to undergo such an invasive
procedure because he was genuinely experiencing pain in his knee following
the accident. Nevertheless, he acknowledges that the photograph illustrated
the testimony of Dr. Yarus, which not only detailed the invasive ablation
procedure completely for the jury but also explained that the procedure is
undertaken to remedy a patient’s complaints of pain.
To this end, Dr. Yarus indicated that Appellant presented at Premier Pain
& Rehab on July 30, 2020, to treat with Dr. Clifton Burt, who performed
genicular blocks on three nerves located inside Appellant’s knee to try to
reduce pain. N.T. at 28.5 The jurors first observed Dr. Yarus refer to a medical
drawing illustrating the internal anatomical structures of the knee, and they
watched him use the illustration to identify the location of the nerves,
explaining they were the ones blocked or ablated during Appellant’s
radiofrequency ablation procedure. N.T. at 29-30.
The doctor then transitioned to the second illustration, which consisted
of a still, color photograph of an actual knee ablation procedure. The depiction
is limited to a close-up of a bare knee with three small needles or probes
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5 It was at this time that Appellees’ counsel noted his objection to “any kind
of models or pictures or anything like that, that wasn’t produced.” N.T. at 28.
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inserted. Iodine appears to have been applied to the surface of the knee, and
some of the iodine appears to have run onto the edge of the paper dressing.
Although the photograph was “blacked out” in the video pursuant to the
trial court’s ruling, the jury still observed the video of Dr. Yarus describing in
detail what was depicted in the obscured photo and how the ablation
procedure is performed. Specifically, Dr. Yarus related the photograph to the
previous medical drawing—which the jury had viewed—that illustrated the
location of each genicular nerve among the internal structures of the knee,
and he described how three ablation probes, or needles were placed in the
knee to ensure each would contact its corresponding nerve and deliver the
radiofrequency wave to burn the nerve and block the pain signal it was
emitting to the brain:
And, then, uh I have another demonstration. This is actually a
placement of the needles, uh, that were the nerves that are going
to be ablated.
[a brief delay occurs while the videographer retrieves the
photograph]
So, this is representing the three, uh, nerves that, uh, would be
ablated. Certainly, again, this is not Mr. Crump. This is a live,
uh, person that, uh, is being used just to show where the needle
placement is.
Through the needle will come a device that’s hooked up to a
machine that will generate energy at the tip of the probe that goes
through down to nerve. . . . In some cases, uh, I believe in the
case of Dr. Burt [who performed the procedure on Appellant], they
outline the nerve with dye using a fluoroscope, and that’s how you
know where the placement is. Once you’re up on the nerve, this
probe is sent down, and then, energy is placed through the probe.
It's about 80 degrees Celsius, which is 115 Farenheit, and that’s
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enough to burn those nerves right where the needles are. It takes
about 30 minutes, total, to do the procedure.
N.T. at 31-32.
Dr. Yarus concluded his presentation of the genicular ablation procedure
by offering his opinion that it was “medically necessary, reasonable, and
related to the accident[,]” and that he would recommend repeating it to
“knock[] out the pain” to enable Appellant “to function a little better[.]” N.T.
at 32, 34.
This record establishes that the photograph in question was largely
cumulative of Dr. Yarus’ detailed testimony, particularly when one considers
that the photograph’s purpose, according to Appellant, was to convince the
jury that he was genuinely in pain by showing he was willing to undergo an
invasive procedure to address it. The photograph thus offered little if any
probative value beyond Dr. Yarus’ detailed testimony describing the invasive
nature of the ablation procedure. Therefore, we conclude that any prejudice
Appellant incurred by the court’s ruling precluding the admission of the
ablation photograph was de minimus and cannot support his claim of
reversible error.6 Accordingly, we discern no merit to Appellant’s challenge.
Judgment affirmed.
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6 We thus distinguish the present matter from decisions acknowledging that
an expert medical witness’s testimony, conveyed in appropriate clinical
language, regarding the nature of injuries or cause of death does not render
photographic evidence merely duplicative. See, e.g., Commonwealth v.
Pruitt, 951 A.2d 307, 319 (Pa. 2008) (discussing cases in which photographs
depicting the brutality of beatings and the deep and gaping wounds involved
were essential to prove criminal intent, even when a medical examiner had
described the nature of the victims’ injuries).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2023
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