Valentine, C. v. Martin Elfant Inc. Real Estate

J-A28017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA VALENTINE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARTIN ELFANT INC. REAL ESTATE, : No. 3565 EDA 2016
MARTIN ELFANT INC. REAL ESTATE :
AND J. MALVERN BENJAMIN, JR. :
Appeal from the Order Entered June 15, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term, 2014 No. 01727
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY PANELLA, J. FILED MAY 29, 2018
Cynthia Valentine appeals from the order dismissing her complaint
alleging that she was injured after negligently maintained stairs caused her to
fall. After careful review, we affirm.
We assume the parties’ familiarity with the relevant factual background.
For a detailed recitation, see the trial court’s opinion, dated May 12, 2017.
Valentine filed her slip and fall complaint in 2014. According to the initial
scheduling order, Valentine’s expert reports were due by July 6, 2015.
The deadline was extended to September 7, 2015, by a revised case
management order. A subsequent case management order extended the
overall discovery deadline to February 19, 2016. However, this order did not
explicitly address the deadline for expert reports.
J-A28017-17
The court granted Valentine two continuances due to her attorney’s
unavailability to start trial. Thereafter, Valentine retained new counsel. He
entered his appearance on behalf of Valentine, and a third continuance was
granted. However, the order indicated the trial court would grant no further
continuances. Trial was set to start on June 10, 2016.
On May 31, 2016, Valentine submitted an expert report from Richard
Hughes, P.E. Appellees, Martin Elfant Inc. Real Estate Company and J. Malvern
Benjamin, Jr., filed a motion in limine to preclude the testimony of Hughes
shortly thereafter.
On June 8, 2016, Valentine submitted an expert report from Mark D.
Allen, M.D. The next day, Appellees filed a motion in limine to preclude Dr.
Allen’s testimony.
Prior to trial, the court heard arguments on Appellees’ motions. The
court precluded the testimony of Hughes and Dr. Allen, noting the submissions
were untimely and prejudiced the Appellees.
Appellees then made an oral motion for nonsuit, based upon their belief
that Valentine could present no expert testimony on causation. Valentine
conceded. And the court granted Appellees’ motion for nonsuit.
Valentine filed a motion to strike the nonsuit. The court refused to
remove the nonsuit, and Valentine filed this appeal. Valentine purported to
appeal from the order denying her motion to remove the nonsuit.
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J-A28017-17
Upon reviewing the docketing statement, this Court concluded the order
confirming the nonsuit was not a final, appealable order and directed Valentine
to have judgment entered on the order pursuant to Billig v. Skvarla, 853
A.2d 1042 (Pa. Super. 2004). Valentine complied with our directive.
Despite this, we must address the issue of our jurisdiction to entertain
this appeal. We begin by noting the question of timeliness of an appeal is a
jurisdictional issue, as an untimely appeal divests this Court of jurisdiction to
hear the merits of the case. See Sass v. Amtrust Bank, 74 A.3d 1054, 1063
(Pa. Super. 2013). As such, we may inquire into timeliness of the appeal at
any time. See Murphy v. International Druidic Society, 152 A.3d 286,
289 (Pa. Super. 2015).
Usually, a party’s notice of appeal must be filed within 30 days of the
entry of the order that it is appealing. See Pa.R.A.P. 903(a). Further, we will
not deem a facially untimely appeal to be timely “except under the narrowest
of circumstances in which counsel for the offending party can establish either
a breakdown in the operations of the judicial support system or extenuating
circumstances that rendered h[er] incapable of filing the necessary notice.”
Sass, 74 A.3d at 1063.
However, a party may generally only appeal from “final orders.”
Pa.R.A.P. 341(a). In relevant part, a final order is defined as an order that
“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1).
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J-A28017-17
Under this rule, pre-trial orders dismissing a plaintiff’s case in its entirety
are considered final, appealable orders. See, e.g., D’Elia v. Folino, 933 A.2d
117, 121 (Pa. Super. 2007). However, a verdict entered after trial is not a
final order; judgment entered upon the verdict is the final, appealable order.
See Billig, 853 A.2d at 1048. This is true even where post-trial motions are
required to preserve issues for appeal. See id.Nonsuit is appropriate if, after a plaintiff has finished presenting
evidence on liability, she has failed to establish a right to relief. See Pa.R.C.P.
230.1(a)(1). Chronologically, an order granting nonsuit falls between a pre-
trial order and a verdict. Because motions for nonsuit occur after trial has
started, our courts have treated them like verdicts, as opposed to pre-trial
rulings. Thus, “where a nonsuit has been entered the case is not ripe for
appeal until after a motion to remove the nonsuit has been presented to the
court and denied.” Billig, 853 A.2d at 1048.
Since nonsuit can only be entered after trial has started, a pre-trial
motion for nonsuit should be treated as a nunc pro tunc motion for summary
judgment or judgment on the pleadings. See Rivera v. Home Depot, 832
A.2d 487, 490 (Pa. Super. 2003). Thus, a post-trial motion to remove the
alleged nonsuit is not required, and does not toll the 30-day appeal period.
See id. However, where the trial court mistakenly refers to its order as one
granting nonsuit, we will not penalize an Appellant for relying on the trial
court’s description. See id.-4-
J-A28017-17
Here, the court mislabeled its order as one granting nonsuit prior to the
start of trial, rather than summary judgment. Valentine mistakenly followed
the procedures required to perfect her right to appeal from the entry of a
nonsuit. However, under Rivera, this does not render her appeal untimely.1
We therefore turn to the merits.
Valentine first argues the court improvidently granted a nonsuit prior to
the start of trial. As we have just discussed, we agree this was a technical
error, but it is a mere error of nomenclature. This error does not render the
court’s order invalid. See id., at 490. Thus, Valentine’s first issue on appeal
does not merit relief.
Valentine’s second and third issues assert the trial court erred in
dismissing her claims, as she believes expert testimony was not required to
establish causation. After reviewing the record and the trial court’s opinion on
appeal, we conclude the court thoroughly and appropriately addressed these
issues. See Trial Court Opinion, 5/12/17, at 6-8 (finding expert medical
testimony was required due to Valentine’s delay in experiencing symptoms
after the fall). We therefore adopt the trial court’s reasoning as our own.
Valentine’s second and third issue merit no relief.
____________________________________________
1 Regardless, we have corrected the appeal statement to reflect the date the
court mailed Pa.R.C.P. 236 notice of the order dismissing Valentine’s case to
the parties. See Pa.R.A.P. 108(b).
-5-
J-A28017-17
Valentine’s final three issues assert claims that the trial court erred in
precluding the testimony of Hughes and Dr. Allen. After reviewing the record
and the trial court’s opinion on appeal, we again conclude the court thoroughly
and appropriately addressed these issues. See Trial Court Opinion, 5/12/17,
at 8-11 (finding Valentine’s expert reports were filed well past discovery
deadline, and that defendants would be prejudiced because the reports were
filed the week before trial began). We therefore adopt the trial court’s
reasoning as our own. Valentine’s fourth, fifth, and sixth issues merit no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
-6-
Circulated 05/07/2018 11:30 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL SECTION
CYNTHIA VALENTINE
Plaintiff, SUPERIOR COURT
V. NO. 3565 EDA 2016 -:.
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C.
MARTIN ELFANT INC. REAL ESTATE, CO. t·
and Trial Court Docket: -·
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J. MALVERN BENJAMIN, JR. April Term, 2014 Ci
Defendants. Civil Action No. 01727
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OPINION
BUTCHART, J. May 12, 2017
Plaintiff Cynthia Valentine (hereinafter "Plaintiff') appeals the decision of this Court on
October 12, 2016 denying Plaintiffs Motion for Post-Trial Relief.
I. PROCEDURAL HISTORY
Plaintiff initiated a premises liability claim against Defendants on April 20, 2014. A Case
Management Order was issued on July 25, 2014, requiring the completion of discovery by July
6, 2015. Plaintiffs expert reports were due no later than July 6, 2015. See July 25, 2014 Case
Management Order.
Defendants filed a Motion for Extraordinary Relief which was granted by the Honorable
Lisa M. Rau on July 7, 2015. The revised Case Management Order required discovery to be
completed by September 7, 2015. Plaintiff was required to submit expert reports by September 7,
2015. Defendants' expert report deadline was October 5, 2015. See July 7, 2015 Revised Case
Management Order.
Valentine Vs 45 East Cliveden Partners, Lp E-OPFLO
II I Ill llll I I Ill I HII IIIIII
14040172700154
Defendants filed a second Motion for Extraordinary Relief, citing scheduling issues with
Plaintiff. On December 30, 2015, Hon. Lisa M. Rau moved the matter from the January 2016
trial pool to the March 2016 trial pool. The discovery deadline was extended to February 19,
2016. Plaintiffs expert report deadline was not extended. See December 30, 2015 Order.
On March 24, 2016, the Honorable Lisa M. Rau granted Plaintiffs counsel's "last-minute
request to continue the trial" and moved the matter to the April 2016 trial pool. See March 24,
2016 Order. On April 8, 2016 Plaintiffs second continuance request was granted See April 8,
2016 Order.
On April 29, 2016, Jacob N. Snyder entered his appearance on behalf of Plaintiff. New
counsel requested a third trial continuance, which was granted. The Order specified that no
further continuances would be granted and trial was set for June 10, 2016. See May 11, 2016
Order.
On May 31, 2016, Plaintiff submitted an expert report from Richard Hughes, P.E. On
June 8, 2016, Plaintiff submitted an expert report from Mark D. Allen, M.D ., eight months after
Plaintiffs expert report deadline and three months after the discovery deadline. Plaintiffs
Pretrial Memorandum did not identify any expert witnesses.
On June 3, 2016, Defendants filed a motion in limine to preclude Plaintiff from calling
Mr. Hughes as an expert. On June 9, 2016, Defendants filed a motion in limine to preclude
Plaintiff from calling Dr. Allen as an expert. Both motions argued that Defendants would be
extremely prejudiced by the admission of the experts so close to trial when neither was
previously disclosed. Defendants noted they had no opportunity to retain a liability expert and
would have to expend additional costs to re-depose their medical expert.
2
On June 13, 2016, the Court heard oral argument on Defendants' motions. The Court
granted both motions in limine, precluding the testimony of both experts. See June 13, 2016
Order. The Court determined that the reports were provided substantially beyond the extended
discovery deadline and caused extreme prejudice to the Defendant. Notes of Testimony (''N.T."),
June 13, 2016 at 17 and 34.
Defendants moved for nonsuit after the Court's ruling, citing Plaintiff's lack of medical
evidence regarding causation. N.T., June 13, 2016 at 34-35. Plaintiff conceded that there would
be no medical evidence regarding causation with no further response to the motion. Id The
Court granted Defendants' motion for nonsuit.
On June 22, 2016, Plaintiff filed a timely post-trial motion. On July 6, 2016, Defendants
filed an answer in opposition to Plaintiff's post-trial motion. On August 2, 2016, after reviewing
the trial transcript, the Court issued a briefing schedule. Plaintiff filed a timely brief in support of
the post-trial motion on August 29, 2016. Defendants filed a timely response on September 30,
2016. On October 10, 2016, Plaintiff filed a reply. On October 12, 2016, following oral argument
and upon consideration of all filings, the Court denied Plaintiffs motion for post-trial relief. See
October 14, 2016 Order.
On October 31, 2016, Plaintiff filed a timely Notice of Appeal. On November 2, 2016,
the Court ordered Plaintiff to provide a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b). On November 21, 2016, Plaintiff filed the following Statement of
Matters Complained of on Appeal ("1925(b) Statement"):
1. Whether the Court committed prejudicial error and/or an abuse of discretion in
denying Appellant's Motion for Post-Trial Relief where Defendant's Motion for a
Nonsuit was improvidently granted.
2. Whether the Court committed prejudicial error and/or an abuse of discretion in
denying Appellant's Motion for Post-Trial Relief where Appellant has raised
material issues regarding the validity of the grounds upon which the Court granted
3
Defendants' Motion for a Nonsuit, including, but not limited to, all issues raised
within Appellants' Post-Trial Motion and Memorandum of Law, and in particular,
to wit: The Plaintiff would not have "any admissible medical evidence regarding
her injuries."
3. Whether the Court committed prejudicial error and/or an abuse of discretion in
denying Appellant's Motion for Post-Trial Relief insofar as Appellant was not
required to present expert medical testimony as to causation in order to state a
prima facie cause of action for negligence? Tabuteau v. London G. & A. Co., Ltd.,
A.2d 396 (Pa. 1945); Lattanze v. Silvestrini, 448 A.2d 605 (Pa. Super.1982);
McArdle v. Panzek, 396 A.2d 658 (Pa. Super. 1978).
4. Whether the Court committed prejudicial error and/or an abuse of discretion in
denying Appellant's Motion for Post-Trial Relief where Defendants' Motions in
Limine to Preclude Expert Medical and Engineering Evidence were
improvidently granted?
5. Whether the Court committed prejudicial error and/or abuse of discretion in
denying Appellant's Motion for Post-Trial Relief insofar as the Court failed to
give due consideration to the factors applicable to determination of whether or not
to preclude evidence for failure to comply with discovery? Williams v.
Southeastern Pennsylvania Transportation Authority, 741 A.2d 848, 855, n.7 (Pa.
Cmnwlth. 1999); Feingold v. Southeastern Pennsylvania Transportation
Authority, 488 A.2d 284, 287 (Pa. Super. 1985); Konstantopoulous v. Westvaco
Corp. 112 F.3d 710, 719 (3d Cir. 1997).
6. Whether the Court committed prejudicial error and/or an abuse of discretion in
denying Appellant's Motion for Post-Trial Relief insofar as the "drastic sanction"
of preclusion of evidence should not have been imposed where more appropriate
lesser sanctions were available and any prejudice to Defendants could easily have
been cured? Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d
625 (Pa. Super. 1997); Cochran v. Jackson, No. CIV.A. 14-2165, 2015 WL
3555291, (E.D. Pa. June 8, 2015).
Plaintiffs 1925(b) Statement. For the reasons set forth below, Plaintiffs claims are without
merit and the rulings of this Court should be affirmed.
II. FACTUAL HISTORY
On April 20, 2012 at 45-49 E. Cliveden Street in Philadelphia (hereinafter "the
property"), Plaintiff, a tenant, alleged that the heel of her shoe caught a crack in the top step and
caused her to fall. See Plaintiffs Deposition at p. 66, attached hereto as "Exhibit A". Plaintiff
4
was en route to a job interview and continued on her way. Id. at 103. She did not experience any
pain until two days later when she went to the emergency room. Id. at 115. X-rays were taken
and were unremarkable. Id. Six days after the incident Plaintiff was seen by her primary care
physician. Plaintiffs primary care physician ordered an MRI which showed a lower back disc
bulge. Id. at 116. Plaintiff did not experience neck pain until a week or two after the accident. Id.
at 117. Plaintiff began experiencing right-sided weakness "a few months" after the fall. Id. at
120.
III. DISCUSSION
A. The Court Properly Considered Defendants' Motion for Nonsuit
Plaintiff argues that this court committed prejudicial error and/or abuse of discretion in
denying Plaintiffs Post-Trial Motion because Defendants' motion for nonsuit was
"improvidently granted." Plaintiffs claim is without merit.
A motion for nonsuit may not be granted prior to the presentation of evidence by the
plaintiff. Gallagher v. Harleysville Mut. Ins. Co., 617 A.2d 790, 796 (Pa.Super. 1992). However,
a grant of a motion for nonsuit filed prior to the presentation of evidence is properly
characterized as "either a summary judgment grant or grant of judgment on the pleadings ... " Id.In Gallagher, the Pennsylvania Superior Court held that the trial court's action in entering a
nonsuit prior to trial could not be characterized as granting nonsuit. Thus, post-trial motions to
remove the nonsuit prior to trial were not required under Rule 227 .1. Id.In Lewis v. United Hospitals, Inc., 692 A.2d 1055, 1058 (Pa. 1997), the Pennsylvania
Supreme Court upheld the reasoning in Gallagher, finding that the Superior Court should have
treated the motion for nonsuit as a motion for summary judgment and thus allowed a direct
appeal. Following the reasoning of both Gallagher and Lewis, and considering that discovery in
5
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this matter was complete, this Court's grant of nonsuit is properly characterized as a grant of
summary judgment.
Rule 1035.2 of the Pennsylvania Rules of Civil Procedure states that any party may move
for summary judgment in whole or in part, as a matter of law:
If, after the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to the cause
of action or defense which in a jury trial would require the issues to be
submitted to ajury.
Pa.R.C.P. 1035.2(2). The Superior Court may overturn a trial court's entry of summary judgment
only if there has been an error of law or a clear abuse of discretion. Estate of Swift v.
Northeastern Hospital of Philadelphia, 690, A.2d 719, 722 (Pa. 1997).
Plaintiff failed to timely produce an expert as to medical causation. Based on the relevant
case law discussed infra, expert testimony as to causation was required in this matter. Plaintiff
identified experts and submitted expert reports well beyond the discovery deadline. As Rule
1035.2(2) states, summary judgment is appropriate where the party bearing the burden of proof
at trial has failed to produce evidence of facts essential to the cause of action. Defendants'
motion for nonsuit, properly characterized as a motion for summary judgment under the
reasoning of Gallagher and Lewis, was properly granted. Plaintiffs first claim is without merit.
B. Plaintiff Required Expert Testimony to Prove Causation
Plaintiff claims that even if the preclusion of Dr. Allen was proper, Plaintiff should have
been permitted to testify as to causation and the extent of her injuries. Plaintiff argues that this
case did not require expert medical testimony to establish causation. Plaintiffs claim is without
merit.
6
In a personal injury case, the plaintiff must prove the existence of a causal relationship
between the injury complained of and the alleged negligent act to recover for the injury. Hamil v.
Bashline, 392 A.2d 1280 (Pa. 1978). A plaintiff must generally prove causation by expert
medical testimony. Smith v. German, 253 A.2d 107 (Pa. 1969). However, an exception exists
where there is an obvious causal relationship between the two. Id. An obvious causal relationship
exists where the injuries are either "immediate and direct" or the "natural and probable" result of
the alleged negligent act. 1 Tabuteau v. London G. & A., Ltd., 40 A.2d. 396 (Pa. 1945). "The two
must be so 'so closely connected and so readily apparent that a layman could diagnose (except
by guessing) the causal connection' ... " Id.Expert testimony will likely be required in cases where a "significant period of
time ... elapsed between the injury complained of and the accident and ... the injury was not of the
type one would normally expect to result from the accident in question either because the
accident would not normally produce such an injury or there were other equally likely or more
likely causes of the injury." Lattanze v. Silvestrini, 448 A.2d 605, 609 (Pa. Super. 1982). Where
there is a "significant time lag between the accident and the injury suffered, the courts will
1
"In the following cases it was determined that the injuries complained of were either "immediate and direct" or the
"natural and probable" result of the alleged negligent act and, therefore, expert medical testimony was not needed to
prove causation: Schultz v. Pivar, 370 Pa. 271, 88 A.2d 74 (1952) [sacro-iliac sprain resulting from a fall into a
manhole, back pain started immediately after the fall]; Tabuteau v. London G. & A. Co., Ltd, supra, [hernia caused
by tripping on an uneven sidewalk, intense pain in groin and nausea felt immediately after the accident, two small
lumps in the groin area discovered shortly thereafter]; Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974)
[minimorganic brain damage caused by being struck on the head by a car and knocked unconscious]; Fenstermaker
v. Bodamer, supra, [neck, shoulder and elbow pain developed shortly after an auto accident, doctor prescribed a
neck brace and leather collar to ease the pain]; Munns v. Easthome Furniture Industries, Inc., 193 Pa.Super. 61, 164
A.2d 30 (1960) [ruptured cervical disk caused when a sudden gush of compressed air twisted the plaintiffs left arm
while he was using a power stapler, pain and numbness in the fingers felt shortly after the accident, pain spread to
shoulder and then neck in the following days]; and Yellow Cab Co. v. Workmen's Compensation Appeal Board, 37
Pa.Cmwlth. 337, 390 A.2d 880 (1978) [subdural hematoma caused when plaintiff struck his head against the
windshield in an auto accident, severe headaches and dizziness started almost immediately after the accident,
plaintiff blacked-out one month after the accident]." Lattanze v. Silverstrini, 448 A.2d at 608-609.
7
require expert medical evidence of causation." McArdle v. Panzek, 396 A.2d 658, 661 (Pa.
Super. 1978).
In Lattanze, the plaintiffs claimed symptoms manifested on the day of the car accident.
In the instant case, Plaintiff did not seek medical attention until two days after the incident and
did not have an MRI until April 26, 2016. See June 2, 2016 Report of Dr. Mark Allen, attached
hereto as "Exhibit B". Additionally, Plaintiff proceeded to her job interview after falling.
This Court determined that expert medical causation testimony was required. Plaintiff
conceded that her injuries did not manifest until two days after the injury. Additional injuries
claimed by Plaintiff did not manifest until several days and weeks later. Based on the time lapse
and Plaintiffs history of previous and subsequent injuries, this Court determined that no obvious
causal relationship existed between the alleged negligent act and Plaintiffs injuries. Plaintiffs
claim is without merit.
C. Preclusion of Plaintiffs Experts Was Warranted.
Plaintiff argues that the Court erred or committed an abuse of discretion by granting
Defendant's motions in limine to preclude her experts. Plaintiff states that the Court failed to
give due consideration to applicable factors in determining whether failure to comply with
discovery warranted preclusion of evidence. Plaintiff notes that preclusion of an expert is a
"drastic sanction" and unnecessary in this instance. Plaintiffs claims are without merit.
Admission of expert testimony is within the sound discretion of the trial court and will
not be disturbed absent an abuse of discretion. Walsh v. Kubiak, 661 A.2d 416, 419 (Pa. Super.
1995). Enforcement of procedural rules, whether local or state-wide, is dictated by the facts and
circumstances of the individual case. "It has been our policy to overlook ... procedural errors
when a party has substantially complied with the requirements of the rule and no prejudice
8
- ....
would result." Pomerantz v. Goldstein, 387 A.2d 1280, 1281 (Pa. 1978). Procedural rules exist to
promote efficiency and fairness and should not be given status beyond this inherent power.
Feingold v. Southeastern Pennsylvania Transportation Authority, 488 A.2d 284, 287 (Pa. Super.
1985).
Pennsylvania Rule of Civil Procedure 212.1 requires that parties submit a pre-trial
statement. Pennsylvania Rule of Civil Procedure 212.2(a) provides that a pre-trial statement shall
contain:
(5) a copy of the written report, or answer to written interrogatory consistent with
Rule 4003.5, containing the opinion and the basis for the opinion of any person
who may be called as an expert witness;
Pa.R.Civ.P. 212.2(a).
Pennsylvania Rule of Civil Procedure 4003.5 provides:
Rule 4003.5 Discovery of Expert Testimony. Trial Preparation Material.
(b) If the identity of an expert witness is not disclosed in compliance with
subdivision (a)(l) of this rule, he shall not be permitted to testify on behalf of the
defaulting party at the trial of the action. However, if the failure to disclose the
identity of the witness is the result of extenuating circumstances beyond the
control of the defaulting party, the court may grant a continuance or other
appropriate relief.
Pa.R.Civ.P. 4003.5(b). The court must balance the "facts and circumstances of each case to
determine the prejudice to each party" before precluding an expert witness. Feingold v. SEPTA,
488 A.2d 284, 287 (Pa. Super. 1985).
In Feingold, the Superior Court noted several factors to consider in determining whether
to allow the testimony of a witness not disclosed during discovery, including: (1) bad faith on the
part of the party seeking to call such witnesses; (2) the party's ability to have discovered the
witness earlier; (3) the validity of the excuse offered; (4) the willfulness of the party in failing to
comply with the court's order; and (5) the party's intent to mislead or confuse his adversary. 488
9
A.2d 284, 287 (Pa. Super. 1985). Further considerations include: (1) the prejudice or surprise of
the party against whom the witness would have testified; (2) the party's ability to cure that
prejudice; (3) the extent to which the case would be disrupted by waiver of the rule against
calling unlisted witnesses; and (4) the party's bad faith in failing to comply with the court's order.
Id.In Feingold, the court precluded Appellant's treating physician, Dr. Atkins, from
testifying. Appellee, SEPTA, intended to call Dr. Atkins on their own behalf. Because Appellant
had listed Dr. Atkins as a witness at the time of the pre-trial conference, had access to the
doctor's records, and knew the substance of his testimony, attempts to claim "prejudice" were
ruled disingenuous by the Superior Court.
Plaintiff cites Curran v. Stradley, Ronon, Stevens, & Young in support of her position that
a report submitted just nine (9) days prior to trial does not result in prejudice. 521 A.2d 451, 455
(Pa. Super. 1987). Curran is distinguishable from the instant case. In Curran, the defendant's
previously disclosed expert was unavailable and a replacement was retained shortly prior to trial.
Id. at 455. Plaintiffs claim of prejudice only extended to ability to cross-examine on background
and qualifications. The Court determined that this prejudice could be cured in the time available.
Id.
Here, Plaintiff failed to identify any experts until shortly before the trial date. Replacing
one expert with another a week before trial is certainly different from preparing a case for
months under the impression that no expert will testify. Here, Defendants were not afforded the
opportunity to obtain a defense liability expert to rebut Plaintiffs expert. Further, Defendants
videotaped their medical expert's testimony believing that Plaintiff would not call a medical
expert. To proceed without affording Defendants the opportunity to have their medical expert
10
rebut Plaintiffs medical expert would greatly prejudice Defendants. Re-deposing their own
medical expert would create an additional expense and permit Plaintiff to cross-examine their
expert a second time. Plaintiff, without providing an excuse for her failure, asserts that
Defendants would have adequate time to fully prepare for trial and would not be prejudiced. This
Court is not persuaded by Plaintiffs suggestion that Defendants accommodate Plaintiffs
disregard of established pre-trial rules at Defendants' cost.
Plaintiff failed to identify any experts they planned to call for trial until significantly after
the extended deadlines imposed by the Court. Plaintiffs original deadline for all expert witness
discovery-July 6, 2015 -was extended to September 7, 2015. Two motions for extraordinary
relief and three trial continuances were previously granted in this case. Nearly eight months
passed without any indication that Plaintiff would call expert witnesses, which were required in
this case, as acknowledged by Plaintiff in her lack of defense against Defendant's motion for
nonsuit. As a result, Defendants did not prepare a liability expert to rebut Plaintiffs claims and
would be forced to incur more costs to rebut Plaintiffs medical expert. Defendants were
surprised and severely prejudiced. Preclusion of Plaintiffs expert witnesses was warranted and
not an abuse of discretion by this Court.
IV. CONCLUSION
For the reasons provided, Plaintiffs claims are without merit and the ruling of the Court
should be affirmed.
By the Court:
/�
COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
CYNTHIA VALENTINE, )
)
Plaintiff, )
)
- vs - ) AUGUST TERM, 2014
) NO. 00927
MARK KINGKINER AND )
MARTIN ELFANT INC. )
REAL ESTATE AND J. )
MALVERN BENJAMIN, )
)
Defendants. )
- - - - - - -
CYNTHIA VALENTINE,
- - )
)
)
Plaintiff, )
)
- vs - ) APRIL TERM, 2014
) NO. 01727
45 EAST CLIVEDEN )
PARTNERS, LP. AND )
MARTIN ELFANT INC. )
REAL ESTATE AND )
CLIVEDEN APARTMENTS )
AND ROBERT ELFANT AND )
MARTIN ELFANT, INC. }
REAL ESTATE, )
)
Defendants. )
Case ID: 140401727
Control No.: 16063043
CYNTHIA VALENTINE
66
1 Q. And then your heel got caught in a crack?
2 A. Yes.
3 Q. And then the doors swung back and hit you?
A. Back and then propelled me down the steps.
Q. The doors hit you in your back?
A. Yes, the door.
Q. And then you fell forward down the steps?
A. Yes, sir.
Q. Do you remember what the weather was like
at the time?
A. It was clear.
Q. Is there -- what was the lighting like in
this hallway or this area where the fall occurred?
A. It was between 12:00 and 1:00. The sun was
shining.
Q. Were there lights on inside, as well?
A. I believe so, yes.
Q. Was it well-lit then?
A. The inside was. The outside was just
.... . ,.c.. = . .,.. ,,..ral l.igbt .
How were you feeling that day before the
fall?
Optimistic, excited.
Were you in any type of pain?
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1 gone through some type of marriage ceremony with
2 Cory Harris, like an Islamic or Muslim marriage
3 ceremony?
4 A. Not the tradi.tiorial type.
5 Q. Are you still with Cory Harris?
6 A. We are friends.
7 Q. Are you planning to marry him at al.l?
8 A. No, I am not.
9 Q. Aside from the skinned knee, did you have
any other visual signs of injury such as bruising,
swelling, any other cuts or scrapes?
A. Yeah. I had bruising.
Q. Where was that?
A. I had a contusion on my back and I had a
couple, contusions on my legs.
Q. On both legs?
A. I know for a fact my right leg.
Q. Did you ever take any photographs of the
skinned knees or any of your bruises or contusions?
A. Possibly, yes.
Q. What do you mean by possibly? You can't
recall or you did?
A. I've taken a lot of pictures.
Q. Did some of those pictures include
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1 Q. Did you tear your pantyhose?
2 A. Yes, I did.
3 Q. Did you get changed in any way before going
4 into the interview?
5 A. I didn' t have time. My skirt was 1ong
6 enough to kind of hide it.
7 Q. Hide the tear?
8 A. Yes.
9 Q. So then you drove yourself to the interview
10 at the Hospital of Pennsylvania; is that right?
11 A. University of Pennsylvania, yes, sir.
Q. Is that all the way over in West
Philadelphia?
A. Yes, sir.
Q. Were you late at all?
A. Was I, late?
Q .. Yeah, for the inte,rview.
A. No , sir, I was not .
Q. How did the interview go?
A. The interview went well to me. My
specialty is more in neurology and neurosurgery. So
the heart would be me learning something totally
different. Which I'm a fast learner, it was fine.
But I probably had competition that might
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1 something to Mr. K. Because he stayed in and out of
2 my apartment. I know my father did look around.
3 Q. Did he mention anything to you?
4 A. He didn't mention anything necessarily to
5 me. But the things that were important, he
6 mentioned to -- like things that were out of
7 regulation and stuff like that because of the job
8 that he had, he wrote, you know, an initial letter.
9 But it wasn't concerning the steps, yet.
10 Q. What job did he have, Mr. Valentine?
A. He was the director of HUD for over 30
years.
Q. As a result of the fall, what parts of your
body did you hurt?
A. I hurt my neck. I hurt my low back. My
hips are out of place.
Q. Both hips?
A. Yes. Yes, sir. I have bilateral sciatica
issues. I'm weak on the right side which has
my issues are on the right side, like major issues
are on the right side. So my body kind of took a
beating on this one and I haven't recovered.
Q. So your neck, your low back, both hips are
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1 out of place, bilateral sciatica issues, weakness on
2 the right side?
3 A. Weakness on the right side, I have
4 sacroiliitis.
5 Q. What is sacroiliitis?
6 A. It's like the hip joint bone and it's
7 inflamed. So that's not helping with the numbness
8 on my right side.
9 Q. You said most of the major issues are on
your right side. What major issues are you talking
about?
A. Just the numbness, now I have knee
fissures.
Q. What's a knee fissure?
A. They're like little cuts in my knee that
for my age shouldn't even be there, yet.
Q. You relate those to the fall?'
A. Yes. Okay. My knee moves out of place. I
have to wear a brace.
T.HE.WITNES.S: Can I.?
MR. DALY: Yes.
THE WITNESS: This is the knee
stabilizer I got from orthopedics.
MR. TENTOFF: Do you mind if I
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1 take a photograph of that.
2 THE WITNESS: Of course, no.
3 MR. DALY: No problem.
4 THE WITNESS: I'm supposed to
5 wear this every day to try to ke�p my knee
6 in place.
7 BY MR. TENTOFF:
Q. For the record, this is for your right
knee?
A. Yes, sir.
Q. And it is a Hely leather, H-E-L-Y,
essentially, a neoprene brace with almost a rubber
insert.
MR. DALY: I don't think it --
yeah. It appears to be rubber. And I'll
just say for the record, it's a horseshoe
or U-shaped rubber insert/attachment.
TENTOFF:
When did you first start -- when did you
notice that you were in pa.in?
Two days after I fell.
Did you have any pain before the two days
you fell?
No, sir. I was ready to go back to work.
.
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1 I liked to work.
2 Q. Where did you first start experiencing
3 pain?
4 A. I first started experiencing it in my back.
5 Q. Your low back?
6 A. My low back going down my buttocks going
7 down my legs. And that's when I rushed to the
8 emergency room because I knew something wasn't
9 right. All they could do ,is x-rays. So I was sent
to PCP, Dr. Lazowick.
Q. When you say PCP, you mean primary care
physician?
A. I1m sorry.
Q. It's okay.
A. Primary care physician and he sent me
immediately for MRI. And that's where MRI showed a
couple of damages that weren't there previously.
Because I had had so many MR.Is done and
x-rays and things had dramatically changed. I
_g,id.n.'t ha'.Y".e bu.l.ges •. I did.n:'t··have· a ·lot of· stuff
that was on my MRI.
Q. When did you first start experiencing the
neck pain?
The neck pain was a couple weeks later .
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1 Q. A couple weeks after the fall?
2 A. Yes, maybe like a week and a half, two
3 weeks.
4 Q. The knee fissures, when �id you start
5 experiencing that?
6 A. I didn't know. I was actually in aqua
7 therapy. And the next day, I could..q't put any
8 weight on my foot on my right side.
9 They thought it was a torn meniscus. And
it was a little bit more than what we expected.
Q. For the knee fissures, only in your right
knee?
A. Yes.
Q. The hips being out of place, when did you
start experiencing that?
A. When Dr. Chan did my valve, she told me
that my hips were out of -- like I'm not right.
Q. Is that Dr. Charmaine Chan?
A. Yes. Yes, sir.
after the incident that was?
A. It was over a year and a half. And she
experienced my spasm.
What do you mean she experienced it?
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1 A. She could see the spasms going up and down
2 my body.
3 Q. Where were the spasms?
4 A. They were in my back. They jumped all the
5 way to my feet. My feet would curl like the wicked
6 witch of the west.
7 (At this time, a discussion was
8 held off the record.)
9 THE WITNESS: So the doctor saw
10 that and she actually had to kneed the
11 spasm out. And that's when she realized I
have severe radiculopathy throughout my
body.
And that's when she started
sending me to specialists. I prefer
females due to my religious beliefs. But a
lot of people in the orthopedic field or
the back field are predominantly male. I
know this because I've worked in that
se"tting. So I tried to find a female; I
was -- I just --
BY MR. TENTOFF:
Q. When did you convert to Islam?
I always dabbled in it as a teen. But
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A. April of 2014, April, May.
Q. So like two years after this fall?
A. Yes, sir.
Q. Was that the first time you had a spasm or
is that the first time she saw them?
A. No. That was the first time she saw them.
That was another reason why I was put on alprazolam
was to try to control my spasms because they were so
bad.
Q. The right-sided weakness, when did you
start developing that?
A. A few months into my injury.
Q. So a few months after the fall?
A. Yes, sir.
Q. Had you ever had right-sided weakness
be.fore this incident?
A. No, sir.
Q. Had you ever complained of right-sided
weakness to any medical provider before this
i.nei.d.ent?·· · · ·
A. No, sir.
Q. The sciatica that you experienced, how long
after the fall did you begin experiencing that?
A. Within a month.
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l
1 C E R T I F I C A T E
I 2
3 I, CAROL NEALIS, Court Reporter, certify that
4 the foregoing is a true and accurate transcript of
5 the foregoing deposition, that the witness was first
6 sworn by me at the time, place and on the date
7 herein before set forth.
8 I further certify that I am neither attorney nor
9 counsel for, not related to nor employed by any of
10 the parties to the action in which this deposition
11 was taken; further, that I am not a relative or
12 employee of any attorney or counsel employed in this
13 case, nor am I financially interested in this
14 action.
15
16
17
18
19
20
21 Carol Nealis
Notary Public# 1261298
22 County of Philadelphia
My commission expires
23 3/22/2019
24
ase : 0401727
ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES .
Control No.: 16063043
EXHIBITB
I ._
Mark D. Allen, M.D.
Orthopedic Surgeon
l.t.1h:,__,•{l\\'fl,lladclphi•. PA 1?125
NAME: VALENTINE, CYNTHIA
CHART NO.: VALCY200
DIA: 04/20/2012
EXAMINATION DATE: 06/02/2016
ORTHOPEPI_C CONSULTATION
The patient present today for examination and consultation.
HISTORY OF PRESENT ILLNESS:
The patient states that she was well until April 20, 2012, when sustained multiple Injuries
as a result of a fall at an apartment complex. She reports that her heel got caught hi the
crack of a step and caused her to fall down stairs again, sustaining multiple Injuries.
The patient states that following the accident, she was treated and released from
Lankenau Hospital. She states that she been treated with her primary care physician.
She also reports to coming under the care of Dr. McCoy. She states that she is now
presently treating with pain management.
CURRENT COMPLAINTS:
The patient presents today and states that she continues to experience neck pain, mid
back pain, and lower back pain. She also reports to experiencing numbness and tingling
in both arms and both legs right worse than left.
PAST MEDICAL HISTORY: Remarkable for asthma, and minor sprains as a result of a
motor vehicle accident and work injury on 2006 with no residuals.
FAMILY HISTORY: Non-contributory as the patient reports to being adopted.
SOCIAL HISTORY: The patient states that she Is presently single. She states that she
is a medical assistant but has been out of work since the time of the accident. She denies
use of tobacco or alcohol.
Administrative Office
318 North Lansdowne Avenue
Lansdowne, PA ! 9050
(610) 2598344 • F�x (610) 259-3385 Cats�JPld��4040f72'
Cr¥1kf..¥r��trJ 6�m3.f)ili3As
Cynthia Valentine
June 2, 2016
Page 2
ALLERGIES: NKDA.
RECORDS REVIEWED:
Lankenau Hospital
Extensive records dating back to 2002
Lab reports and operative reports
Emergency Department notes of 2/21/2005
Riddle Memorial Hospital
Main Line Health
Lankenau Radiology
Jefferson Neurosurgical Associates
Germantown Medical Associates
Ches-Penn Family Health
CVS Pharmacy
NovaCare Rehabilitation
Wal-Greens
Parkside Family Medicine
Daniel Lazowick, D.O.
Glenn Rosen, M.0.
Thomas Jefferson University Hospital
Albert Einstein Medical Center
STUDIES:
MRI Lumbar spine 4/14/2007, Normal.
MRI Lumbar spine 9/21/2009 - Normal.
MRI Lumbar spine 4/26/2012, Broad based disc bulge L4-5.
MRI Lumbar spine 1/10/2013, Disc bulge L4-5, very mild degeneration.
MRI Lumbar spine 5/2/2014, Mild facet degeneration.
MRI Cervical spine Oise bulge C4/5, C5/6. Facet hypertrophy.
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Cynthia Valentine
June 2, 2016
Page 3
PHYSICAL EXAMINATION
35 year old right-hand dominant African American female.
Height 5 feet 4 inches.
Weight 200 pounds.
The patient ambulates with a cane.
Examination of the cervical spine reveals spasm and tenderness from occiput through C7
bilaterally. Range of motion of the cervical spine is restricted and pain productive in all
planes. Trigger points noted along the superior border of the bilateral trapezius muscles.
Examination of the thoracic spine reveals a normal kyphosis. Tenderness noted along the
paraspinal musculature from T5 throughT9 bilaterally.
Examination of the lumbar spine remove spasm and muscle guarding with tenderness to
palpation from L2 through L5 - S1 bilaterally. Range of motion of the lumbar spine is
restricted and pain productive in all planes to approximately 60% of normal. Straight leg
raises limited to 60 degrees bilaterally.
Neurological examination reveals thumb to index finger pinch test weakness on the right,
and EHL weakness on the left.
IMPRESSIONS:
• Chronic post-traumatic sprain cervical spine
• Cervical disc bulge C4/5, C5/6.
•• Chronic post-traumatic sprain thoracic spine
• Chronic post-traumatic sprain lumbar spine
• Lumbar disc bulge L4/5.
• Cervical radlculopathy
• Lumbar radiculopathy
• S/p Lumbar injections x3
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