Cole, M. v. Janoski, M. ( 2023 )

J-A14038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MERRITT COLE AND BETH COLE, HIS : IN THE SUPERIOR COURT OF
WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2452 EDA 2022
MARIA JANOSKI, ESQ., :
ADMINISTRATRIX OF THE ESTATE :
FOR SUIT PURPOSES ONLY FOR THE :
ESTATE OF RICHARD P. WALLACE, :
M.D. :
Appeal from the Judgment Entered November 17, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 190402312
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 19, 2023
Merritt Cole and Beth Cole (collectively “the Coles”) appeal from the
judgment entered against them and in favor of Maria Janoski, Esq., as
Administratrix of the Estate of Richard P. Wallace, M.D. (“Dr. Wallace”). We
affirm.
The trial court provided the factual and procedural history of this case,
which we set forth in relevant part as follows:
. . . Merritt Cole [(“Mr. Cole”)] and Beth Cole (husband and
wife) brought this action against their family physician of more
than [thirty] years, [Dr. Wallace], who died shortly after the
lawsuit was filed, claiming that Dr. Wallace negligently treated Mr.
Cole’s hyperlipidemia by failing to ensure that Mr. Cole take a
statin medication. Following the filing of a suggestion[] of death,
[the Coles] brought a motion to obtain an order from the court to
compel Dr. Wallace’s widow to involuntarily assume the personal
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defense of the action, which the court denied as procedurally
improper and without prejudice to the right to properly and
procedurally correctly refile once the Registrar of Wills had
properly designated a personal representative for the estate. A
substitution was thereafter filed appointing Maria Janoski, Esquire,
as admistratrix ad [litem] . . .. [The estate pleaded the defense
of comparative negligence in its answer and new matter. See
Answer and New Matter, 7/17/19, at ¶ 24. Prior to trial, the Coles
filed a motion in limine to preclude testimony by defense expert
witness Edward Gary Lamsback, M.D.]
****
[The Coles, in their motion in limine, sought] to
preemptively prevent [Dr. Lamsback] from presenting
[testimony] on the treatment records and contents of Dr.
Wallace[’s files] showing repeated documented occasions in which
Mr. Cole declined or refused to follow Dr. Wallace’s treatment
recommendations for diagnostic testing, prescription, lifestyle
modifications[,] or other treatments. [The Coles] argue[d] that,
[if] the court allowed this . . . testimony, it introduced an element
of [comparative] negligence on the part of conduct refusal or
inaction of Mr. Cole that [would] undermine[] the [Coles’] case by
. . . taking the focus off the doctor and putting it on Mr. Cole [and
his compliance or non-compliance with Dr. Wallace’s treatment
recommendations. The trial court denied the motion in limine.]
****
. . . [This matter proceeded to trial from May 31, 2022 -
June 2, 2022. The Coles’ theory at trial was not] that Dr. Wallace
“failed to diagnose” Mr. Cole’s underlying condition OR failed to
inform him of the results of his informative and timely medical
tests (revealing elevated cholesterol, also known by the medical
term “hyperlipidemia”) OR provided treatment that exacerbated
his condition and failed to advise of healthy lifestyle changes.
[The Coles’] claim was that Dr. Wallace “should have written,” that
is, physically written or electronically transmitted to some
unknown pharmacy, a prescription . . .. [The Coles’] experts
presented a radically different . . . portrait of the physician-patient
relationship and the obligations of a treating family physician . . .
to the jury th[a]n did defendants. In their argument, a physician
not only discusses the subject with the patient and makes a
recommendation, relying upon the patient’s own autonomy and
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judgment to make the ultimate decision, but somehow unilaterally
“prescribes” [medication] . . .. [Additionally, the Coles argued
that Dr. Wallace’s periodic recommendation of CT scans to
monitor the buildup of plaque in Mr. Cole’s arteries, via calcium
deposits, was below the applicable standard of care for
hyperlipidemia, and that Dr. Wallace instead should have simply
prescribed Mr. Cole a statin once his LDL reached 190.] . . ..
****
[The Coles] only presented the live testimony before the
jury of one of its experts — [] Michael Soboeiro[, M.D.] The
[Coles’] other [expert] witnesses were presented via video
depositions . . .. [Merritt and Beth Cole also testified.]
****
[The trial court additionally admitted] testimony from the
defense medical witnesses, [Dr. Lamsback and Frank C.
McGeehin, M.D.,] two doctors who reviewed the records of Dr.
Wallace and outlined the history of the treatment of Mr. Cole—
what it consisted of, how Dr. Wallace communicated with him and
what recommendations Dr. Wallace made (and the extent to
which Mr. Cole complied with them).
****
[Following the closing, t]he jury returned a verdict on June
2, 2022, in which it answered the first jointly agreed upon jury
interrogatory on the verdict slip[,] “No,” i.e., determining after
deliberation that Dr. Wallace was not negligent in his care of Mr.
Cole.
Trial Court Opinion, 9/16/22, at 1, 2, 4, 7, 9 (paragraphs re-ordered for
clarity). The Coles filed a timely post-trial motion, which the trial court
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denied.1 The Coles timely appealed,2 and both the Coles and the trial court
complied with Pa.R.A.P. 1925.3
The Coles raise the following issue for our review:
1. Did the trial court abuse its discretion in permitting the defense
experts to offer opinion testimony beyond the fair scope of their
reports[,] resulting in an unjust verdict[?]
2. Did the trial court abuse its discretion in denying [the Coles’]
pretrial motion in limine to bar evidence of comparative or
contributory negligence on the part of [Mr. Cole,] resulting in
an unjust verdict?
Coles’ Brief at 1, 4 (unnecessary capitalization omitted; issues re-ordered for
ease of disposition).
Both of the Coles’ issues concern the trial court’s evidentiary rulings.
We have articulated our scope and standard of review for evidentiary rulings
as follows:
We review a trial court’s evidentiary decisions for an abuse
of discretion. In this context, discretion is abused when the course
pursued represents not merely an error of judgment, but where
the judgment is manifestly unreasonable or where the law is not
____________________________________________
1 The order denying the Coles’ post-trial motion is dated September 6, 2022,
time-stamped August 15, 2022, and docketed September 16, 2022.
2 While the Coles appealed on September 22, 2022, following the denial of
their post-trial motion, the trial court had yet to enter a judgment; however,
following a rule to show cause issued by this Court on November 14, 2022,
the Coles filed a praecipe for judgment on November 16, 2022, and the trial
court entered judgment on November 17, 2022.
3 The trial court, in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), directed
this Court to its September 16, 2022 memorandum and order in which it
denied the Coles’ post-trial motion and stated therein the reasons for its
ruling. See Statement of Reasons, 12/27/22.
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applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will. To reverse the trial court, th[is
C]ourt must consider all the evidence in the light most favorable
to the appellee and conclude that the verdict would be changed if
another trial were granted.
Hassel v. Franzi, 207 A.3d 939, 950 (Pa. Super. 2019) (internal citations,
quotations, and some brackets omitted).
In their first issue, the Coles argue the trial court erred in permitting the
defense experts to testify outside the fair scope of their expert reports.
Pennsylvania Rule of Civil Procedure 4003.5(c) provides, in relevant part, that
“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).
In applying Rule 4003.5(c), this Court has observed,
[I]t is impossible to formulate a hard and fast rule for
determining when a particular expert’s testimony exceeds the fair
scope of his or her pretrial report. Rather, the determination must
be made with reference to the particular facts and circumstances
of each case. The controlling principle which must guide is
whether the purpose of Rule 4003.5 is being served. The purpose
of requiring a party to disclose, at his adversary’s request, the
substance of the facts and opinions to which the expert is
expected to testify is to avoid unfair surprise by enabling the
adversary to prepare a response to the expert testimony. In other
words, in deciding whether an expert’s trial testimony is within the
fair scope of his report, the accent is on the word “fair.” The
question to be answered is whether, under the particular facts and
circumstances of the case, the discrepancy between the expert’s
pretrial report and his trial testimony is of a nature which would
prevent the adversary from preparing a meaningful response, or
which would mislead the adversary as to the nature of the
appropriate response.
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Hassel, 207 A.3d at 951 (internal citations and quotations omitted).
The Coles argue the trial court abused its discretion in permitting the
defense experts to testify outside the fair scope of their reports. According to
the Coles, “[n]either defense expert articulated in their reports the standard
of care for the management of hyperlipidemia.” Coles’ Brief at 46. The Coles
assert that Dr. Lamsback wrote a “rambling report” setting forth how Dr.
Wallace’s care was “reasonable and appropriate and met the standard of care
for [Mr.] Cole,” and that Dr. McGeehin admitted on cross examination that he
did not “articulate the standard of care in his report . . ..” Id. According to
the Coles, neither doctor set forth his opinion about what the standard of care
was “in [his] respective expert report[.]” Id. at 47.
The trial court considered the Coles’ assertions and concluded they were
meritless:
As to contents of the testimony of defense medical experts,
it is clear from the record that [the Coles’] counsel interposed a
barrage of objections during testimony of the defense experts,
repeatedly asserting that questions sought testimony “beyond the
scope” of the experts’ reports. The court has reviewed each and
every such evidence objection in the transcript, side-by-side with
the reports, and has determined that the information elicited fell
well within the fair scope of matters clearly discussed in the
reports and derivable from the witness’ discussion and analysis.
The record of the trial reveals that [the Coles’] apparent concerns
were not based upon any purported prejudice or surprise
occasioned by the testimony of the defense experts or any lack of
foundation for the experts’ conclusions (both doctors exhaustively
reviewed Dr. Wallace’s records as well as Mr. Cole’s deposition
testimony). Indeed, [the Coles] seemed to have had a problem
with how the defense experts interpreted the records and the
conclusions that they were able to draw from [Mr. Cole’s] medical
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history, a history that revealed a pattern of declining to initiate
drug treatment and repeated failure to follow-up on testing and
return visits. . . ..
****
. . . [T]he [Coles] now contend that [the defense] experts
failed to use sufficiently “magic” language in their reports to be
able to express an opinion at trial on the standard of care. . . .
However, both medical doctors thoroughly discuss the salient
points of Dr. Wallace’s treatment, his noted recommendations and
the ongoing progress. Both expert reports clearly state their
assessments as to what aspects of Dr. Wallace’s records support
the conclusion that his treatment was appropriate for [Mr. Cole’s]
condition. Clearly, the finding that a treatment was appropriate
sufficiently encompasses and equates with the conclusion that the
treatment met the standard of care. [The Coles’] linguistic
machinations are without merit[,] as the court finds that the
reports sufficiently apprised [the Coles] of the experts reasoning
and conclusions and their testimony at trial was within the fair
scope of their reports.
****
The [Coles’] grounds for . . . relief are largely focused on
the contents of the expert reports and whether the testimony
exceeded the fair scope of the reports. . . ..
****
There is no suggestion here that [the Coles] were surprised
by the testimony of the defense experts. Rather it appears that
they strenuously disagreed with the defense experts’ conclusions
and disputed whether the conclusions were supported by the
evidence at trial or a fair representation of the contents of Dr.
Wallace’s records. . . ..
Trial Court Opinion, 10/24/22, at 11-13, 22-23 (footnote and citations
omitted).
Following our review, we discern no abuse of discretion by the trial court
in determining that the testimony of Drs. Lamsback and McGeehin was within
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the fair scope of their expert reports. Dr. Lamsback’s expert report opined
that Dr. Wallace met the standard of care for hyperlipidemia, as is shown in
the following excerpts:
A chart from May 31, 2000 confirms that[,] at this point[,
Dr. Wallace] recommend[ed] starting medication to reduce
cholesterol. . . . A note to contact the office was in the records.
A chart entry on February 2, 2004 confirmed that the cholesterol
level remained elevated[,] and it was time to consider medication
and a new heart scan. . . ..
Dr. Wallace continued to provide reasonable and
appropriate primary care over the next 10 years.
****
Review of records provided confirms that Dr. Wallace
recommended cholesterol[-]reducing medication in June 1997[,]
in addition to June 2000 and February 2001. This is clearly
documented in Dr. Wallace’s chart notations. Dr. Wallace made
these recommendations based on evaluating the patient[’]s risk
profile and by appreciating that statins, especially the early
versions[,] had potential significant adverse effects . . ..
****
. . . [Mr.] Cole was provided with multiple opportunities to
treat his hyperlipidemia and[/]or to proceed with testing that
would have resulted in the need to treat his hyperlipidemia . . ..
[Mr.] Cole did not pursue these multiple and reasonable
opportunities that were provided to him. The care provided by Dr.
Wallace met the standard of care and was reasonable and
appropriate.
Lamsback Report, 12/20/20, at 2, 5, 6 (emphases added). This is consistent
with Dr. Lamsback’s testimony that Dr. Wallace met the standard of care.
See, e.g., N.T., 6/2/22, at 48.
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We additionally note that Dr. McGeehin also expressly opined in his
expert report that Dr. Wallace complied with the applicable standard of care:
Records from May 31, 2000 recommend initiation of drug
therapy for dyslipidemia.[4] This was also reconfirmed in the visit
of February 2, 2002. . . .
Dr. Wallace was regularly monitoring and discussing Mr.
Cole’s lipid profile. . . . Repeatedly, Dr. Wallace spoke to Mr. Cole
regarding initiation of statin therapy. These discussions included
potential side effects. The patient was also advised to undergo
repeat coronary CT scanning seven times between 2008 and
2018. The patient had also been advised to undergo stress testing
in October 2017 which was not performed.
****
The most important issue here is that Dr. Wallace
meticulously followed and discussed Mr. Cole’s risk factors for
[coronary artery disease]. Mr. Cole elected to forego
pharmacologic and further diagnostic testing, as was his right.
Dr. Wallace met and exceeded the standard of medical care
over decades with Mr. Cole. At the end of the day, physicians
offer advice but cannot force patients to initiate treatments
regardless of the medical literature showing benefit. . . ..
McGeehin Report, 1/12/21, unnumbered at 2-3 (emphasis added). This was
consistent with Dr. McGeehin’s trial testimony. See, e.g., N.T., 6/2/22, at
97. As both of the defense experts’ reports expressly spoke to whether Dr.
Wallace complied with the standard of care in his treatment of Mr. Cole, we
conclude that the trial court did not abuse its discretion in determining that
____________________________________________
4 Dyslipidemia is the imbalance of lipids such as cholesterol, low-density
lipoprotein cholesterol, triglycerides, and high-density lipoprotein.
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the doctors’ testimony did not exceed the fair scope of their reports. Thus,
the Coles’ assertion of error on this point is meritless.
In their second issue, the Coles argue the trial court erred in denying
their motion in limine to preclude testimony by Dr. Lamsback. The standard
of review for challenges to rulings on motions in limine is as follows:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. It gives the trial judge the opportunity
to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the
jury. A trial court’s decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.
Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (internal
citations and quotations omitted). Additionally, to be admissible, evidence
must be relevant; relevance is defined as “having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable.” Pa.R.E. 401, 402. Even if evidence is
relevant, it may be excluded if its probative value is outweighed by, inter alia,
the danger of unfair prejudice, confusing the issues, or misleading the jury.
See Pa.R.E. 403; see also Parr, 109 A.3d at 696. Further, if a party presents
evidence about a certain issue, then they possibly open the door to rebuttal
evidence that may have otherwise not been admissible. See Tillery v.
Children’s Hosp. of Philadelphia, 156 A.3d 1233, 1243 (Pa. Super. 2017);
see also Charlton v. Troy, 236 A.3d 22, 40 (Pa. Super. 2020). Lastly, both
physician negligence and the patient’s comparative negligence are questions
that are properly submitted to a jury. See, e.g., Ferguson v. Panzarella,
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700 A.2d 927, 930 (Pa. 1997); see also Zieber v. Bogert, 747 A.2d 905,
909 (Pa. Super. 2000) (providing that physician defendants “were entitled to
an appropriate jury instruction on the comparative negligence of [the plaintiff]
because there was some evidence of comparative negligence to warrant the
instruction”).
The Coles argue the trial court erred in denying their motion in limine
seeking preclusion of testimony by Dr. Lamsback based on relevance.
Specifically, the Coles argue that Dr. Wallace failed to meet the standard of
care for a patient with hyperlipidemia, because he did not write a prescription
for a statin, and, accordingly, any failures on Mr. Cole’s part to obtain follow-
up scans or take other recommended action is not relevant to Dr. Wallace’s
asserted negligence. See Coles’ Brief at 38-40. The Coles further argue that
“the focus on [Mr. Cole’s] supposed failure to follow the recommendation for
a repeat CT scan is irrelevant since he should have been on statin medication
no later than 2004 and, as . . . Dr. McGeehin acknowledged, a CT scan is not
[the] standard of care for patients on statin medications.” Id. at 41.
The trial court considered this issue and determined it lacked merit:
. . . [The Coles] raised the issue of Mr. Cole’s conduct when
they elicited testimony from Mr. Cole to the effect that “if Dr.
Wallace had prescribed it, [i.e., statins,] Mr. Cole would have
taken it,” and, presumably, it would have completely immunized
him in perpetuity from the consequences of his high cholesterol.
That proposition necessarily implicates the matter of Mr. Cole’s
conduct. Mr. Cole, by making this declaration, opened the door
to th[e] issue of his [compliance] with Dr. Wallace’s various
written treatment recommendations. . . . The jury could, and
apparently did, conclude that Dr. Wallace did tell Mr. Cole about
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statins, and further concluded that Mr. Cole simply was not
credible when he denied having [a] conversation [to that effect].
. ..
[In any event, t]he jury never reached issue of comparative
or contributory negligence. It was never asked to focus on
whether Mr. Cole bore any fault for his medical condition. The
jury focused on one question and one question alone in the agreed
upon verdict slip—did all [of] the things Dr. Wallace did over thirty
years of serving as Mr. Cole’s family physician fall short of what
the doctor needed to [do] in the treatment of Mr. Cole’s risks for
cardiovascular disease. The trial jury looked at[:] thirty years of
written medical records[;] . . . the recommendations[;] . . . the
various tests that were ordered[,] and the ones whose results Dr.
Wallace had[;] what Dr. Wallace provided to [Mr. Cole] in
response to the information available and the known risks[,] and
decided that Dr. Wallace had provided appropriate treatment
within the standard of care for a doctor in his position. The jury
never got to causation or to the qualifying effect of [Mr. Cole’s]
conduct . . ..
Trial Court Opinion, 10/24/22, at 20-21. Additionally, Appellee argues that
“[t]he presentation of the defense of comparative negligence, when supported
by the evidence, is a matter of right of the defendant, and not subject to
discretionary preclusion.” Appellee’s Brief at 30.
Based on our review, we conclude the trial court properly exercised its
discretion in denying the Coles’ motion in limine and permitting testimony by
Dr. Lamsback. Appellee pleaded the defense of comparative negligence. See
Answer, 7/17/19, at ¶¶ 24-26 (pleading the defense of comparative
negligence). As shown above, Dr. Lamsback’s testimony was relevant to the
defense of comparative negligence insofar as Dr. Lamsback testified about Mr.
Cole’s non-compliance with Dr. Wallace’s recommendations. This evidence
was properly put before the jury. See Ferguson, 700 A.2d at 930; see also
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Zieber, 747 A.2d at 909. Accord Verdict Sheet, 6/2/22 (Question 3, which
the jury did not reach, asking, “Was [Mr.] Cole comparatively negligent?”).5
Further, as discussed supra, Dr. Lamsback’s testimony was also relevant to
the issue of whether Dr. Wallace’s treatment of Mr. Cole complied with the
applicable standard of care. See, e.g., N.T., 6/2/22, at 41-42 (Dr. Lamsback
opining, “Really the standard of care is to have a discussion . . .. When a
prescription wasn’t written, the conclusion [is] the patient didn’t want the
statin . . . So[,] you wouldn’t write [it] . . .. . . . You educate and . . . the
patient [decides]”); see also id. at 48 (Dr. Lamsback opining that Dr. Wallace
met the applicable standard of care).
We additionally discern no abuse of discretion by the trial court, in
permitting Dr. Lamsback to testify about Mr. Cole’s compliance with Dr.
Wallace’s treatment recommendations, because, as the trial court concluded,
Mr. Cole opened the door to this line of questioning with his own testimony.
Mr. Cole testified that if Dr. Wallace had prescribed him a statin for cholesterol,
“Oh, of course,” he would have taken it. N.T., 6/1/22, at 110. Only after Mr.
Cole’s trial testimony did Dr. Lamsback testify about Mr. Cole’s compliance
with Dr. Wallace’s recommendations. See, e.g., N.T., 6/2/22, at 17-18 (Dr.
Lamsback testifying that in June 2000, Dr. Wallace recommended medication
____________________________________________
5 “On appeal, the reviewing court may affirm for any sound reason, and is not
limited to the grounds relied upon by the trial court if the result is correct.”
Larsen v. Philadelphia Newspapers, Inc., 602 A.2d 324, 332 (Pa. Super.
1991).
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to reduce Mr. Cole’s cholesterol, and asked Mr. Cole to “[p]lease contact the
office,” but there was no “evidence that there was any follow-up by [Mr.
Cole]”); see also id. at 38 (Dr. Lamsback testifying, “I mean, [Dr. Wallace]
repetitively [sic] called about canceled appointments, missed appointments
and continually brought it up[;] let’s get the CAT scan. . .. Wrote a note saying
we need to find out about the plaque. The patient got the notes and chose
not to do it”). As Mr. Cole opened the door to this line of inquiry, Dr.
Lamsback’s testimony was appropriate for this reason as well. See, e.g.,
Tillery, 156 A.3d at 1243; see also Charlton, 236 A.3d at 40. Because Dr.
Lamsback’s testimony about Mr. Cole’s compliance with Dr. Wallace’s
recommendations was relevant to the properly pleaded defense of
comparative negligence, and, further, Mr. Cole opened the door to this
testimony, Mr. Cole is due no relief.
Order affirmed.
Date: 10/19/2023
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