Quivers, S. v. Manzetti, G.

J-A14011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SALLY QUIVERS, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF GARY LEE : PENNSYLVANIA
QUIVERS, SR. AND SALLY QUIVERS, :
AN INDIVIDUAL :
:
Appellant :
:
:
v. : No. 745 WDA 2018
:
:
GENE W. MANZETTI, M.D.; MICHAEL :
LEMENTOWSKI, M.D.; THAD :
OSOWSKI, M.D.; AND :
MONONGAHELA VALLEY HOSPITAL :
Appeal from the Judgment Entered April 26, 2018
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2014-2187
SALLY QUIVERS, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF GARY LEE : PENNSYLVANIA
QUIVERS, SR. AND SALLY QUIVERS, :
AN INDIVIDUAL :
:
Appellant :
:
:
v. : No. 814 WDA 2018
:
:
GENE W. MANZETTI, M.D., MICHAEL :
LEMENTOWSKI, M.D., THAD :
OSOWSKI, M.D., AND :
MONONGAHELA VALLEY HOSPITAL :
Appeal from the Judgment Entered May 10, 2018
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2014-2187
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
J-A14011-19
MEMORANDUM BY OTT, J.: FILED DECEMBER 27, 2019
Sally Quivers, as the administratrix of the estate for her husband, Gary
Lee Quivers (“Decedent”), and in her individual capacity (collectively,
“Quivers”), appeals from the May 10, 2018, judgment entered in the
Washington County Court of Common Pleas in favor of Gene W. Manzetti,
M.D., Michael Lemontowski, M.D., Thad Osowski, M.D., and Monongahela
Valley Hospital (“Mon Valley Hospital”) (collectively, “Defendants”).1 On
appeal, Quivers raises the following claims: (1) the trial court erred in denying
Quivers’ motion in limine to exclude cumulative expert testimony and to
exclude the testimony of defense expert, John Christian Caldwell, M.D., as
well as motions during trial to exclude or strike Dr. Caldwell’s testimony; (2)
the trial court erred in denying Quivers’ motion for a mistrial at the conclusion
of Dr. Caldwell’s testimony; (3) the trial court erred in permitting Mon Valley
Hospital to offer expert testimony and argument in its defense when there
were no direct claims of negligence against it at trial; and (4) the trial court
erred in failing to permit the direct testimony of plaintiff expert, Paul Yodice,
M.D., regarding intraoperative care. Based on the following, we affirm.
The trial court set forth the facts and procedural history as follows:
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1 Quivers filed two appeals from four separate judgments entered in favor of
the various defendants on April 26, April 30, and May 10, 2018, on a June 23,
2017, verdict. The appeals are docketed at 745 WDA 2018 and 814 WDA
2018. On July 18, 2018, Quivers filed an application to consolidate these
appeals, which was granted six days later.
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[Decedent] died in the recovery room (PACU) of the
Monongahela Valley Hospital following elective surgery for a hiatal
hernia. At the time of his death he was sixty (60) years old; he
was married for 31 years and had two adult sons. He was
employed by Columbia Gas for over 30 years. At the time of his
death, [Decedent] was on a medical leave for a non-work related
injury to his shoulder. He was a hardworking, active man who
enjoyed cooking, golf and completing home improvement projects
for family.
At the trial, his medical history was elicited. [Decedent] was
seen regularly by the same primary physician for approximately
20 years. He was a heavy cigarette smoker. His family had a
history of heart disease and diabetes. He was overweight and
suffered from sleep apnea. In November of 2011, [Decedent]
visited the emergency room of Mon Valley Hospital with a
complaint of chest pain and coughing. He was diagnosed with
bronchitis, given prescriptions and released to see his primary
doctor. In February of 201[2], he was taken by ambulance to the
emergency room due to a complaint of severe chest pain. His
diagnosis was pneumonia and broken rib, which was a result of
intense coughing. A CT scan taken at that time revealed a hiatal
hernia. Dr. Manzetti, a general surgeon, was consulted at the
hospital concerning the hernia. He recommended surgery to
repair the hernia and [Decedent] agreed. Dr. Manzetti ordered
pre-operative tests. An EKG, chest x-ray, lab work and pulmonary
function tests were performed. [Decedent] also took a barium
swallow test. Insurance approval was sought to cover the
surgery; [Decedent’s] insurance company did not have Dr.
Manzetti as an approved provider and Dr. Manzetti then requested
Dr. Lementowski to be the primary surgeon while he would assist
in the surgery. After all the tests were completed and reviewed
by Dr. Manzetti and Dr. Lementowski, the surgery was scheduled
for April 19, 2012.
This elective surgery took four hours at Mon Valley Hospital.
During his surgery Dr. Osowski, the anesthesiologist, was
administering medications and monitoring heart rate and blood
pressure, oxygen saturation and gases, urine output and brain
activity. [Decedent’s] vital signs fluctuated during the surgery
and recovery. The doctors began performing the surgery
laparoscopically but converted to an open procedure due to the
number and strength of adhesions found around the stomach and
esophagus. The doctors found the hiatal hernia to be extensive
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and were able to successfully repair it. After surgery, [Decedent]
was extubated and sent to the PACU for recovery. After
extubation, he was wheezing and he remained on oxygen. He
woke up, he talked with the nurse and he talked with both Dr.
Lementowski and Dr. Osowski. Thirty minutes after the surgery
ended, while [Decedent] was being given a chest x-ray in the
PACU, he became unresponsive and lost consciousness. His heart
stopped. All three defendants and the hospital staff performed life
saving measures for over an hour to no avail. An autopsy was
subsequently performed.
[Quivers] filed a Wrongful Death and Survival Action
asserting professional negligence claims against each of the three
physicians and the hospital. [Quivers] claimed that based on
[Decedent’s] medical history and current testing, elective surgery
was contraindicated until further cardiac evaluation was
performed and that the doctors failed to recognize the increase
risk to [Decedent] and that the monitoring of [Decedent]
intraoperatively and postoperatively fell below the standard of
care and that [he] was untimely extubated. The complaint also
asserted corporate negligence against the hospital for granting
privileges to Dr. Manzetti1 and for ostensible agency liability as to
Dr. O[s]owski.
At trial many medical experts were offered. On behalf of
[Quivers], Dr. Leo Frangiapane testified as to the care of the
surgeons and Dr. Brian White testified as to the care of the
anesthesiologist. Dr. Paul Yodice also testified as to care by Drs.
Lementowski and Osowski. On behalf of Defendant Manzetti, Dr.
James Gregory testified and for Defendant Lementowski, Dr. Miles
Weaver testified. Dr. Osowski offered expert opinions from Dr.
Gregory Marchewka and Dr. Louis Wickas. Mon Valley Hospital
presented Dr. John Caldwell.
____________________
1 Other bases for corporate negligence were dismissed
before trial.
____________________
Trial Court Opinion, 9/28/2018, at 1-4 (record citations omitted).
At the conclusion of the two-week trial, the jury found in favor of the
Defendants on all claims. “[Quivers] filed a timely post-trial motion. After
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the passage of the requisite one hundred twenty (120) days pursuant to
Pa.R.C.P. Rule 227.4(b) and before argument was requested and scheduled
on the post-trial motion, judgment was entered in favor of the Defendants.”
Id. at 1. This appeal followed.2
Based on the nature of Quivers’ first and second arguments, we will
address them together as they both concern Dr. Caldwell, an expert witness
for Defendant, Mon Valley Hospital. In Quivers’ first argument, she complains
the trial court erred in failing to grant her motions in limine to exclude the
expert testimony of Dr. Caldwell as well as motions made during trial to
exclude or strike Dr. Caldwell’s testimony. See Quivers’ Brief at 37. She
contends that pursuant to Pennsylvania Rule of Evidence 403, Dr. Caldwell
should have been excluded based upon the fact that his pretrial report was
cumulative, repetitive, and duplicative of the testimony of the two other
defense expert witnesses, Dr. Marhefka and Dr. Wickas, offered by Dr.
Osowski. Id. at 38. Furthermore, Quivers argues the court should have
limited the number of experts because it “acknowledged in its [Rule] 1925(b)
opinion that the testimony of Dr. Caldwell had ‘some duplication’ of the
testimony of Dr. Marhefka and Dr. Wickas, and that ‘some of’ the testimony
____________________________________________
2 On May 24, 2018, the trial court ordered Quivers to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Quivers
filed a concise statement on June 13, 2018. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 28, 2018.
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of Drs. Marhefka, Wickas, and Caldwell was cumulative.” Id. at 42
(reproduced record citation omitted). Furthermore, Quivers claims:
In addition to being duplicative and cumulative, having three
expert witnesses testify on behalf of Dr. Osowski (and by practical
extension, Mon Valley Hospital) was confusing to the jury and was
unfairly prejudicial to [Quivers]. Offering three identical
conclusions as to the standard of care and causation and may have
convinced the jury that the number of experts, rather than the
credibility of the expert testimony, was a salient factor in reaching
their verdict.
Id. at 43.
In Quivers’ second argument, she asserts that her motion for a mistrial
at the conclusion of Dr. Caldwell’s direct testimony should have been granted
because the court agreed that the testimony at issue was duplicative and
repetitive. Id. at 44-46. Likewise, she states the court abused its discretion
by declining to provide any curative or limiting instruction to the jury regarding
Dr. Caldwell’s repetitive testimony. Id. at 47-48.
We are guided by the following:
A trial court’s decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous. In addition, to
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
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Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1095 (Pa. Super.
2016) (citation omitted), appeal denied, 141 A.3d 481 (Pa. 2016).
Additionally,
the admission or exclusion of evidence, including the admission of
testimony from an expert witness, is within the sound discretion
of the trial court. Thus[,] our standard of review is very narrow;
we may only reverse upon a showing that the trial court clearly
abused its discretion or committed an error of law. To constitute
reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.
Hawkey v. Peirsel, 869 A.2d 983, 989 (Pa. Super. 2005), quoting Turney
Media Fuel, Inc., v. Toll Bros., 725 A.2d 836, 839 (Pa. Super. 1999)
(citations omitted). See also Crespo v. Hughes, 167 A.3d 168, 181 (Pa.
Super. 2017), appeal denied, 184 A.3d 146 (Pa. 2018).
Pursuant to Rule 403, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403
(emphasis added). Cumulative evidence has been defined as,
“additional evidence of the same character as existing evidence
and that supports a fact established by the existing evidence.” …
Evidence that bolsters, or strengthens, existing evidence is not
cumulative evidence, but rather is corroborative evidence.
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Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007)
(quotation omitted), appeal denied, 944 A.2d 756 (Pa. 2008).3 See also
Klein v. Aronchick, 85 A.3d 487, 501 n.7 (Pa. Super. 2014) (citing G.D.M.,
supra), appeal denied, 104 A.3d 5 (Pa. 2014).4
Lastly, “[i]n reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of this Court to determine whether
the record supports the trial court’s decision.” Commonwealth v.
Kendricks, 30 A.3d 499, 507 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 716 (Pa. 2012). “[O]ur standard of review when considering
the denial of jury instruction is one of deference—an appellate court will
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3 It also bears remarking “there is a subtle difference between evidence that
is ‘corroborative’ and evidence that is ‘cumulative.’ In the most general sense,
corroborative evidence is ‘[e]vidence that differs from but strengthens or
confirms what other evidence shows,’ while cumulative evidence is
‘[a]dditional evidence that supports a fact established by the existing
evidence.’ Black’s Law Dictionary. 674, 675 (10th ed. 2014).”
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018).
4 In Klein, supra, a panel of this Court concluded there was no error when a
trial court permitted the defendants to present “three different expert
witnesses on causation” because, while the experts “ultimately reached the
same conclusion, … they approached the issue from different clinical
perspectives.” Id. at 501 n.7. Similarly, in Whitaker v. Frankford Hosp.
of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009), a panel of this
Court determined the trial court did not abuse its discretion when it permitted
the plaintiffs to present two expert witnesses who each “touched briefly upon
the subject matter that was thoroughly covered by the other expert witness.”
Id. at 522-523. The panel noted “[e]ach expert witness clearly and
unequivocally established the necessary component of liability in his area of
expertise[,]” and the “slightly cumulative nature of the intersecting testimony
was not so harmful” that it required a new trial. Id. at 522-523.
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reverse a court’s decision only when it abused its discretion or committed an
error of law.” Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super.
2011) (citation omitted), aff’d, 78 A.3d 1044 (Pa. 2013). “When evaluating
jury instructions, the charge must be read as a whole to determine whether it
was fair or prejudicial.” Commonwealth v. Prosdocimo, 578 A.2d 1273,
1274 (Pa. 1990).
Here, the trial court found the following:
Dr. Gregory Marchewka, a board certified cardiologist,
testified on behalf of Dr. Osowski primarily on two issues -
whether a cardiologist should have been consulted before surgery
was performed on [Decedent] and the cause of [Decedent’s]
death. In his direct testimony, Dr. Marchewka reviewed every
preoperative test that [Decedent] had undertaken, the type of
surgery that was to be performed, and [Decedent’s] overall
medical history and his lifestyle and daily living and opined that
each of the particular results of the tests, the type of surgery, his
past medical history and his lifestyle, including cigarette smoking,
being overweight and a brother having heart disease, did not
warrant sending [Decedent] to a preoperative cardiac
consultation. Dr. Marchewka’s testimony disputed that offered by
[Quivers’] expert, Dr. Brian White. Dr. Marchewka also testified
that, based on the autopsy’s revelation that [Decedent] had
severe artery disease, which the doctor found to be
asymptomatic, [Decedent] died of a cardiac arrest, although he
also concluded he was not really sure why he died.
Dr. Louis J. Wickas, III, a cardiac anesthesiologist, also
testified on behalf of Dr. Osowski. He opined that there was no
need for a preoperative referral to a pulmonologist. His testimony
focused primarily on the intraoperative care provided by Dr.
Osowski and opined that Dr. Osowski’s monitoring and anesthetic
treatment was within the standard of care. He testified that Dr.
Osowski properly reacted to the changes in the surgery from
lap[a]roscopic to open surgery, requiring significant modifications
in narcotic administration. Dr. Wickas examined the treatment in
recovery and the extubation of [Decedent] and opined that the
extubation was appropriate and timely. He also testified that the
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code efforts of Dr. Osowski after [Decedent] went into cardiac
arrest were within the standard of care.
[Quivers] asserts that all of Dr. Caldwell’s testimony was
duplicative of these witnesses and he should have been precluded
from testifying. The Court will first note that the Court did grant
the motion in part. Dr. Caldwell submitted a late supplemental
report and upon [Quivers’] motion, the Court precluded Dr.
Caldwell’s testimony on any matters in the June 7 report
commenting on Dr. Yodice.
An analysis of the testimony of Dr. John Caldwell, an
anesthesiologist, exposes some duplication in the testimony of
that offered by another party through Dr. Marchewka and Dr.
Wickas. The Court notes that counsel for the hospital indicated
that he would “do everything in (his) power to make sure Dr.
Caldwell’s testimony is not a duplication of anything else we’ve
heard.” He testified briefly as to the preoperative care given by
Dr. Osowski to avoid duplication. He testified at length about the
extubation process done by the nurse anesthetist (CRNA) Nick
Francia and overseen by Dr. Osowski. He focused on the
respiratory symptoms and oxygen levels experienced by
[Decedent] postoperatively. The respiratory changes were
discussed only minimally by Dr. Marchewka. Dr. Wickas testified
as to the respiratory condition as to the extubation process only.
The Court may exclude relevant evidence if it is needlessly
cumulative or duplicative. Pennsylvania Rules of Evidence, Rule
403. The Pennsylvania Superior Court defined cumulative
evidence as “additional evidence of the same character as existing
evidence and that supports a fact established by the existing
evidence.” Commonwealth v. Flamers, 53 A.3d 82, 91 (2012
Pa. Super. 186) Footnote 6 quoting Black’s Law Dictionary,
Seventh Edition. In this case, some of Dr. Caldwell’s testimony
was cumulative, some was not. It was offered by a different party,
although Defendant Hospital had the same interest as Defendant
Osowski. The Court limited the testimony of Dr. Caldwell, striking
all testimony contained in his amended report and directing
counsel to avoid duplicative testimony. Overall, the Court found
that Dr. Caldwell’s testimony was not needlessly duplicative.
Trial Court Opinion, 9/28/2018, at 7-9 (record citations omitted).
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We agree with the court’s conclusion for several reasons. First, other
than general statements,5 Quivers does not cite what specific testimony of Dr.
Caldwell was duplicative to the opinions provided by Dr. Marhefka and Dr.
Wickas. Moreover, Quivers presents a muddled argument, in which she states
all three defense experts’ reports and testimony (as in Drs. Marhefka, Wickas,
and Caldwell) were identical, but she does not allege that the testimony of Dr.
Marhefka and Dr. Wickas was duplicative of one another, only with respect to
Dr. Caldwell.
Second, a review of Dr. Caldwell’s testimony primarily concerned a
theory pursued by Quivers regarding extubation, which fell under the care
provided by Mon Valley Hospital’s Certified Registered Nurse Anesthetist
(“CRNA”) Nick Francia in addition to Dr. Osowski. By way of background,
Brian White, M.D., an anesthesiologist expert witness for Quivers, testified
CRNA Francia prematurely extubated the Decedent as he was “not
hemodynamically stable.” N.T., 6/15/2018, at 461; see also id. at 458-471,
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5 Specifically, she only states:
Drs. Marhefka, Wickas, and Caldwell offered opinions both in their
pre-trial reports and in their trial testimony that were virtually
identical to each other: that Dr. Osowski’s preoperative
evaluation of [Decedent] was appropriate, that Dr. Osowski’s
intraoperative and postoperative care of [Decedent] met the
standard of care, and that [Decedent] died of causes unrelated to
Dr. Osowski’s anesthesia care.
Quivers’ Brief at 39.
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509-511, 526-536 (Dr. White’s extubation testimony on direct and cross-
examinations). In response to Dr. White’s testimony, Mon Valley Hospital
rebutted with the testimony of Dr. Caldwell. Initially, Dr. Caldwell was asked
his anesthesiology background with respect to Decedent’s preoperative
assessment and care during surgery without objection from Quivers’ counsel.
See N.T., 6/21/2017, at 1303-1314. Dr. Caldwell then testified extensively
about the extubation process, completed by CRNA Francia and overseen by
Dr. Osowski. The following is a portion of his testimony:
Q[:] Doctor, let’s move to the extubation process because it’s
been criticized and it was testified about yesterday, and I want to
take you to that. As an anesthesiologist, are you familiar with
extubation?
A[:] Yes.
Q[:] Is that something that the anesthesiologist and CRNA do?
A[:] It is.
Q[:] It has been suggested by Dr. White, I believe, that because
this patient was extubated within minutes of the completion of the
surgery that that was malpractice or that fell below the standard
of care. First of all, do you agree with that conclusion, within
minutes?
A[:] Do I believe that the patient was extubated within minutes
of the conclusion of surgery?
Q[:] No. I apologize if the question was asked wrong. My
question is, do you believe that extubating a patient, quote,
“within minutes” is in and of itself falling below the standard of
care?
A[:] I understand. No, it is not.
Q[:] Why not?
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A[:] We don’t judge a patient’s fitness to breathe appropriately
on their own and to maintain an adequate airway based upon the
clock. It is based upon their physiologic condition at the time.
Patient might be hours after care and not be an appropriate
candidate for extubation. Patient may be only moments after the
completion of surgery and be appropriate for extubation.
It’s based upon many factors that ultimately dictate whether
a patient is going to be able to maintain that A and B, airway and
appropriate breathing before the patient is extubated.
Q[:] Can you tell the jury what should be looked for, what are the
steps that take you to the conclusion that a patient can be
extubated?
A[:] Well, the patient needs to have emerged from anesthesia
and met various milestones in terms of demonstrating
consciousness and ability to follow commands, but more
importantly, the patient needs to have returned to spontaneous
ventilation and they need to have returned to that breathing on
their own – that’s what we mean by spontaneous respiration –
with adequate what we call respiratory mechanics, that is, that
the volume of gas being exchanged with each breath is sufficient.
What does it need to be sufficient for? It needs to be
sufficient for the two and only two jobs the lungs have, which are
to eliminate CO2 and, more importantly, to entrain oxygen from
the outside gases and deliver that oxygen to the body.
So the patient needs to have emerged from anesthesia with
adequate respiratory mechanics, indicating that they are
eliminating CO2 appropriately and, more importantly, that they
are exchanging oxygen appropriately, and the clinical judgment is
that even with the breathing tube removed that those conditions
will persist.
…
Q[:] Doctor, after the patient is extubated, so we’ve gone through
this process of assessing whether he can breathe on his own,
whether he’s getting oxygen and whether he’s expelling CO2 and
decision was made to extubate, which we know is done, what is
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the responsibility of the CRNA or anesthesiologist at that point
relative to the patient’s breathing?
A[:] It is to test -- the clinician’s obligation is that in believing
that it is safe to extubate a patient, the clinician is obligated to
always examine the patient for evidence that their impression and
their decision to extubate was wrong. If the patient wasn’t flying,
if the patient wasn't tolerating.
So the patient -- the clinician’s obligation is to monitor the
patient for the A and B, right, in particular with an emphasis on
continued oxygenation and patency of the airway. That is their
primary obligation regarding what is done after extubation.
Q[:] Just recapping, we’ve made a decision that the patient can
breathe, pulled out the tube, continue to monitor the patient in
order to make sure he can continue to breathe. Is that what
you’re saying?
A[:] Right.
Q[:] And based upon the record, does it appear that [Decedent]
could continue to breathe?
A[:] That’s right.
Q[:] Did he have spontaneous respiration?
A[:] He did.
Q[:] Did he have adequate oxygen saturation?
A[:] He did.
Q[:] Was he expelling CO2?
A[:] He was.
…
Q[:] There is a rise in his blood pressure that has been discussed.
Is that a response to -- or let’s put it this way. Is that a negative
response to removing the breathing tube that would cause you,
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the anesthesiologist, to want to put the breathing tube back in?
Do you follow my question?
A[:] Let me repeat it and see if I have it. Is the rise of blood
pressure that’s seen during the anesthetic emergence an
indication that the breathing tube had to be put back in?
Q[:] That’s it, much better stated.
A[:] Not unless the patient was hypoxic.
Q[:] Hypoxia is what?
A[:] Low oxygen. So if the patient were hypoxic, if the patient
had a low oxygen level, no matter what the blood pressure was,
the patient would have required reintubation.
Q[:] Was this patient hypoxic?
A[:] No.
Q[:] Is that rise in blood pressure something that you would
expect to see upon emergence from anesthetic?
A[:] Yes. We call it emergent hypertension.
Q[:] It has been suggested that it would be a very simple solution
for [Decedent] to leave him intubated for some period of time
after he leaves the operating room. Is that something that you
believe should have been done for [Decedent]?
A[:] Should he have been permitted to remain intubated?
Q[:] That’s the first question.
A[:] No.
Q[:] Why not?
A[:] Because he met extubation criteria, and following extubation
he continued to demonstrate that he continued to meet extubation
criteria. You would not reintubate for social reasons.
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Id. at 1314-1316, 1319-1321, and 1322-1323.6
Dr. Marchewka and Dr. Wickas were both questioned briefly about the
timeliness of Decedent’s extubation procedure, but it was not the focus of their
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6 Furthermore, in his September 9, 2016, expert report, Dr. Caldwell opined:
[Quivers] contends that [Decedent’s] bradycardia and arrest were
of respiratory origin.
…
[Quivers] asserts that wheezing recorded by PACU nurse [Yvonne]
Daniels at [Decedent’s] arrival, when coupled with XRAY findings
of atelectasis and possible left lower lobar collapse constituted, in
and of themselves, respiratory distress. A further contention is
that these findings were, by virtue of their existence, indications
for emergent reintubation. Reintubation would certainly have
been needed, even without findings of wheezing or XRAY
abnormalities, had [Decedent] been in hypoxic respiratory
distress, had severe airway obstruction, or been unresponsive
from CO2 retention. But [Decedent] lacked clinical manifestations
of respiratory distress in any form; both in terms of symptoms of
distress, or the physiologic deteriorations in gas exchange that
distress would have caused were distress present. Wheezing in
the PACU is commonly heard after anesthesia on stethoscope
exam, more often in smokers. Chest films very commonly display
atelectasis after the sort of surgery [Decedent] had undergone.
More important than audible wheezing or lung field findings is,
however, their physiologic significance. For Dr. Osowski to have
reintubated [Decedent], simply on the basis of wheezing and
atelectasis, in absence of objective signs of respiratory failure,
would have been irregular.
Complaint in Civil Action, 7/29/2014, at Exhibit A, Dr. Caldwell’s September
9, 2016, Expert Report at 4.
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testimony.7 See N.T., 6/19/2017, at 835-839 (Dr. Marchewka’s testimony)
and N.T., 6/21/2017, at 1278-1279 (Dr. Wickas’ testimony).8 In denying the
motion for a mistrial, the court opined:
I know I felt it’s gone beyond what [Quivers’ counsel] had said in
terms of some repetitive nature certainly in the beginning of his
testimony, but it wasn’t even objected to at that time, but I
understand you’re reluctance to do that at the time, but the
intubation or extubation, I guess, is something that was done by
the hospital. So I do think that has some merit.
N.T., 6/21/2017, at 1351.
Accordingly, while there may have been some overlapping of topics with
respect to the three experts,
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7 As noted by the trial court, Dr. Machewka’s testimony primarily concerned
two issues – whether a cardiologist should have been consulted before the
surgery was performed and Decedent’s cause of death. See Trial Court
Opinion, 9/28/2018, at 7. Likewise, Dr. Wickas’ testimony focused on the
intraoperative care provided by Dr. Osowski. Id.
8 For instance, Dr. Wickas’ testimony on extubation was as follows:
Q[:] In your opinion, do you have an opinion within a reasonable
degree of medical certainty that the clinical criteria for extubation
were met and that the extubation was appropriate and in
accordance with the standard of care?
A[:] Yes, I do.
Q[:] What is that opinion?
A[:] I believe the extubation was appropriate and timely in all
respects, and there was no reason to leave that [Decedent]
intubated.
N.T., 6/21/2017, at 1278-1279.
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[w]e cannot conclude that a new trial is warranted merely because
each expert witness touched briefly upon the subject matter that
was thoroughly covered by the other expert witness. The slightly
cumulative nature of the intersecting testimony was not so
harmful that the result at trial would have been different had the
testimony been restricted, and a new trial is not required.
Whitaker, 984 A.2d at 522-23 (citation omitted). Indeed, a review of the
record confirms the court’s conclusion that the probative value of Dr.
Caldwell’s testimony was outweighed by a danger of needlessly cumulative
evidence with respect to Dr. Marchewka and Dr. Wickas; therefore, Quivers
was not prejudiced by the presentation of his expert testimony. See Pa.R.E.
403.
Third, as will be discussed in detail below, although we recognize Mon
Valley Hospital’s liability was partially derivative of Dr. Osowski as an
ostensible agent, it had its own individual right to defend as to CRNA Francia’s
(a hospital employee) actions regarding the extubation procedure. Mon Valley
Hospital and Dr. Osowski were separate parties with separate counsel, and
they should be permitted to choose their own experts.9 See Myers v. Genis,
344 A.2d 691, 695 (Pa. Super. 1975) (“[A] defendant at trial has the right to
call his own medical experts to testify as to their opinion of the extent of the
injuries at issue. The importance and effect of [this valuable right] cannot be
discounted.”). Therefore, no relief is warranted, and our review of the record
____________________________________________
9 Dr. Caldwell was Mon Valley Hospital’s sole expert witness.
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reveals no basis upon which to disagree with the trial court’s decision to admit
Dr. Caldwell’s expert testimony.
Lastly, with respect to Quivers’ argument that the court abused its
discretion by declining to provide any curative or limiting instruction to the
jury regarding Dr. Caldwell’s repetitive testimony, we find no merit to this
claim based on our above-stated analysis. Because Dr. Caldwell’s testimony
was not needlessly repetitive, as we determined above, the court did not
abuse its discretion or commit an error of law in declining to provide a
“repetitive testimony” instruction. Accordingly, we conclude Quivers’ first and
second claims fail because the trial court did not err in failing to grant her
motion in limine to exclude Dr. Caldwell’s testimony, her motion for a mistrial
at the conclusion of his direct testimony, and by declining to provide a curative
instruction regarding his testimony.
In Quivers’ third claim, she argues Mon Valley Hospital should not have
been permitted to offer expert testimony and a defense argument because
there were no direct claims of negligence against it at trial. See Quivers’ Brief
at 48. Quivers points to the following: (1) in the complaint, she made claims
of both negligence and corporate negligence against Mon Valley Hospital
“based upon its care of [Decedent] and of its hiring, supervision, and/or
credentialing of Dr. Manzetti and Dr. Lementowski;”10 (2) prior to trial, the
____________________________________________
10 Quivers’ Brief at 48.
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court granted a motion in limine to preclude evidence of Dr. Manzetti’s prior
legal matters and consequently, the allegations of corporate negligence
against Mon Valley Hospital were effectively dismissed and “the hospital could
only possibly have been found liable by the jury as the principal of its
ostensible agent[,] Dr. Osowski;”11 and (3) because Quivers was precluded
from introducing evidence to support the corporate negligence claim, the court
granted a nonsuit as to those claims four days prior to trial. Id. at 48-49.
Quivers relies on Deeds v. Univ. of Pa. Med Ctr., 110 A.3d 1009 (Pa. Super.
2015), appeal dismissed, 128 A.3d 764 (Pa. 2015), to support her contention.
Furthermore, she argues the court erred by not limiting Dr. Osowski’s and
Mon Valley Hospital’s representation to one attorney pursuant to Pennsylvania
Rule of Civil Procedure 223.12 Quivers’ Brief at 53. Quivers states: “Here,
____________________________________________
11 Id. at 48-49.
12 Rule 223 provides, in relevant part:
Subject to the requirements of due process of law and of the
constitutional rights of the parties, the court may make and
enforce rules and orders covering any of the following matters,
inter alia:
…
(2) Limiting the number of attorneys representing the same party
or the same group of parties, who may actively participate in the
trial of the case or may examine or cross-examine a witness or
witnesses[.]
Pa.R.C.P. 223.
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not only judicial economy but principles of fairness to [Quivers] should have
prevented Mon Valley Hospital from having counsel actively participate in trial
once the corporate negligence claims against it were dismissed.” Id. at 54.
In Deeds, supra, the plaintiff filed a medical malpractice suit against
the hospital and the trustees of the university associated with that hospital,
alleging the defendants negligently failed to diagnose the plaintiff with
preeclampsia prior to giving birth to a child with severe birth defects. Deeds,
110 A.3d at 1011. At the end of the first day of trial, the plaintiff informed
the court that the parties had stipulated that “‘all the people who provided
medical treatment to [the plaintiff] were agents of [Defendant Hospital and]
asked the [c]ourt to dismiss the other defendants from the case.’” Id.
(citation omitted). However, the court denied the motion to dismiss the other
defendants, “thus permitting both [the hospital] and the [t]rustees to be
represented separately by individual counsel, each of whom then presented
separate arguments and conducted separate examinations of witnesses
throughout trial. Only [the hospital], and not the [t]rustees, appeared on the
verdict sheet.” Id. On appeal, the plaintiff argued the trial court erred in
permitting separate counsel for each defendant “to examine witnesses and
present arguments individually to the jury, despite the fact that the [t]rustees
were not an active party in the litigation and despite the fact that the
[t]rustees did not appear on the verdict sheet.” Id. at 1014.
A panel of this Court noted:
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the facts and claims pleaded against [the hospital] and the
[t]rustees were identical. Moreover, [the hospital] and the
[t]rustees had asserted no cross-claims against one another. [The
hospital] and the [t]rustees shared expert witnesses as well. They
were members of “the same group of parties,” and the matter of
coverage alone did not require counsel for the [t]rustees’ active
participation.
Id. at 1016 (citations omitted). The panel then concluded the plaintiff was
prejudiced because “counsel for the [t]rustees transgressed the collateral
source rule on at least three occasions, transgressions which form[ed] the
basis for the award of a new trial in th[e] case.” Id. at 1017. Specifically,
“the [t]rustees’ questions, which involved improper inquiries into [the
plaintiffs’] existing financial coverage for her medical needs, went well beyond
the scope of [the plaintiff’s] allegations of negligence against [the defendant
doctor].” Id. The panel then held the trial court “abused its discretion by
permitting counsel for the [t]rustees and counsel for [the hospital] effectively
to ‘tag team’ [the plaintiff] at trial while representing the same interest.” Id.
Turning to the present matter, the trial court opined:
[Quivers] argues that Defendant Mon Valley Hospital should have
been precluded from offering any testimony on its behalf because
the only claim against it at the time was vicarious liability for its
ostensible agent Dr. Osowski. The corporate negligence claim
made against Defendant Hospital was dismissed. The Hospital
stipulated as to its vicarious liability so the Hospital was not on
the Verdict and Interrogatories to the Jury.
[Quivers] cites the Deeds case in her Statement of Matters
Complained of on Appeal. Deeds can be distinguished from this
case in several ways. In Deeds, from the first day of trial, the
[p]laintiff removed all claims of corporate negligence against
UPMC. In this Quivers case, the corporate negligence claim
was not finally ruled upon until after Defendant Manzetti
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testified. [Quivers] asserted that the corporate negligence claim
could be revived on cross-examination of Dr. Manzetti. His
testimony was offered on day seven of a ten day trial.
[Quivers] asked the Court to reconsider that motion on
corporate negligence on day eight after the testimony of Dr.
Manzetti was completed. Additionally, Dr. Caldwell testified as to
the acts performed by the staff postoperatively from the
extubation performed by anesthetist Francia and by life-saving
attempts by the hospital staff. The Defendants’ counsel presented
their cases in concert with each other and [Mon Valley] Hospital
had a clear interest in seeking to elicit testimony supporting the
actions taken by Dr. Osowski and the employees of [Mon Valley]
Hospital. The Court recognizes that barring testimony from the
Hospital could be supported as well, and in reflection, might have
been prudent. The decision was within the Court’s discretion. The
Court notes that Dr. Osowski could have offered Dr. Caldwell for
testimony on areas not duplicated. Any error was therefore
harmless.
Trial Court Opinion, 9/28/2018, at 9-10 (emphasis added).
We agree with the trial court’s conclusion and affirm on its sound
rationale. As explained by the court, Deeds is distinguishable from the
present matter, and therefore, we do not find it controlling here. Most notably,
in Deeds, the defendants were considered the same defendant whereas here,
Mon Valley Hospital was a named and distinct defendant with interests not
substantially similar to the other defendants. Furthermore, as counsel for Mon
Valley Hospital pointed out at trial: (1) Mon Valley Hospital has a separate
risk than Dr. Osowski, where, if the doctor is found liable, the hospital has a
responsibility for a certain element of the damages if it goes over; and (2)
counsel for the hospital limited his questioning to cross-examination of plaintiff
expert, Dr. White, on the issue of extubation as it related to the actions of
CRNA Francia and the direct examination of its witnesses, CRNA Francia and
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Dr. Caldwell. See N.T., 6/22/2017, at 1410-1414. Lastly, we reiterate the
notion that a defendant has a right to call his own medical expert witness to
testify regarding their opinion of the injuries at issue. See Myers, supra.
With respect to her Rule 223 argument, we note counsel for Quivers did
not object to the participation of counsel for Mon Valley Hospital in the case
until the morning of the ninth day of a 10-day trial, at which time the trial
testimony had concluded and the parties were preparing for closing
arguments. See N.T., 6/22/2017, at 1408. Therefore, we also find Quivers
has waived this argument. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
As such, we conclude the court did not err in permitting Mon Valley Hospital
to offer expert testimony and a defense argument and by declining to limit Dr.
Osowski’s and Mon Valley Hospital’s representation to one attorney pursuant
to Pennsylvania Rule of Civil Procedure 223. Accordingly, Quivers’ third
argument has no merit.
Lastly, Quivers asserts:
[The trial court] erred when it excluded evidence regarding
intraoperative blood pressures and heart rates [that Quivers’]
expert Paul Yodice, M.D. gave on direct examination, then
permitted Dr. Yodice to be cross-examined regarding that
testimony, and then overruled [Quivers’] motion to play the
portions of Dr. Yodice’s direct examination testimony that
discussed intraoperative blood pressures and heart rates after the
cross-examination had been played for the jury. The court below’s
ruling resulted in significant confusion to the jury, as it only heard
Dr. Yodice’s testimony regarding the intraoperative fluctuations in
heart rate and blood pressure on cross-examination without
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having those matters explicated by Dr. Yodice on direct
examination.
…
Dr. Yodice’s testimony regarding the intraoperative vital signs was
a crucial element of his opinion that [Decedent] died of
postoperative cardiopulmonary collapse brought on, in part, by
the stress of surgery. [Defendants], collectively, called seven
expert witnesses on their behalf, all of whom testified as to
[Decedent’s] cause of death, while [Quivers] were limited by the
court’s ruling to presenting two expert witnesses regarding
[Decedent’s] cause of death. Furthermore, the effect of the
court’s ruling was to render Dr. Yodice’s opinion regarding the
cause [Decedent’s] death unintelligible to the jury, and to prevent
[Quivers] from fully presenting their case in chief to the jury. The
court’s ruling also was unfair to [Quivers], as the jury was
permitted to hear evidence favorable to [Defendants] from seven
expert witnesses; namely, that [Decedent’s] death was not
caused by the surgery, but not evidence favorable to [Quivers];
namely, that the surgery caused his death.
Quivers’ Brief at 55-57.
By way of background, prior to trial, Quivers recorded a videotaped
deposition of her expert witness, Dr. Yodice, a critical care physician. 13
____________________________________________
13 Dr. Yodice described critical care medicine as follows:
[T]he evaluation of patients for their level of illness to decide how
sick they are or may become, to anticipate interventions to
prevent them from becoming sicker or to take care of those who
are already quite ill or critically ill in the hopes of recovery and
return back to normal life. So essentially [a] critical care physician
does evaluations to prevent deterioration or worsening of
conditions and to treat patients once something -- some untoward
event has occurred.
Transcript of Paul C. Yodice, M.D., 6/7/2017, at 6-7.
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Defendants filed objections to the opinion testimony being offered by Dr.
Yodice concerning Dr. Osowski’s intraoperative management care of
Decedent, alleging the doctor was not qualified to give an expert opinion on
intraoperative anesthesia management and his deposition testimony
exceeded the scope of his report.14 At trial, the court heard argument on the
matter and excluded Dr. Yodice’s videotaped direct examination deposition
testimony concerning intraoperative anesthesia management. See N.T.,
6/14/2017, at 260-296. The portions of his deposition testimony, on direct
and at issue, were redacted when shown to the jury. Id. After the court’s
ruling, the following discussion took place:
[Counsel for Dr. Osowski]: Counsel [for Quivers], did you have
based upon the Court’s rulings cross-designations on the cross-
examination that we need to talk about?
[Counsel for Quivers]: Cross-designations?
[Counsel for Dr. Osowski]: Yes. If there are rulings here, are you
seeking to have any of the cross --
[Counsel for Quivers]: No.
Id. at 295-296. Subsequently, and in accordance with the court’s rulings, Dr.
Yodice’s videotaped cross-examination by Defendants and Quivers’ redirect
examination deposition testimony were shown to the jury.
____________________________________________
14 See Memorandum of Law in Opposition to Defendant Thad Osowski, M.D.’s
Motion in Limine to Preclude Expert Testimony from Paul Yodice, M.D.,
5/31/2017.
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Keeping our standard of review regarding the admissibility of evidence
in mind, we note the trial court found the following:
[Quivers] asserts that the Court erred when it limited the
direct testimony of her expert, Dr. Paul Yodice. The Court ruled
that Dr. Yodice was not qualified to opine on intraoperative care.
The Defendants sought to strike Dr. Yodice’s testimony in its
entirety. Dr. Paul Yodice was a physician board certified in
neurocritical care. He was also certified in internal medicine. As
explained by Dr. Yodice, critical care doctors and physicians, or
intensivists, are physicians who specialize in evaluating patients
prior to surgery to assess risk and to manage postoperative care.
Dr. Yodice testified that his opinions would focus on Dr. Osowski.
He offered explanations on anesthesia care, that anesthesiologists
perform many of the same functions as a critical care physician
preoperatively and in postoperative management. He further
stated that an anesthesiologist provides anesthesia and
medication treatment during the operation which he does not do
in his specialty. He never managed a patient under anesthesia in
the OR. Based on that testimony, the Court found that he could
not opine on intraoperative care as he had no qualifications to do
so.
In the Statement of Matters Complained of on Appeal, in
addition to complaining that the testimony should not have been
limited, [Quivers] also claims that on cross-examination,
testimony was played and not redacted concerning intraoperative
care and, therefore, the earlier redacted testimony should have
been presented to the jury. Apparently, when going through what
testimony to redact, counsel of Dr. Lementowski and [Mon Valley
H]ospital focused on the witness’s direct testimony and not the
cross-examination and no redactions in cross-examinations were
made. The cross-examination testimony complained of by
[Quivers] was postoperative, however, and was clearly within the
expertise of a critical care specialist. The Court also notes that
[counsel for Quivers] was able to question him further on the issue
in her redirect testimony. No error was made.
Trial Court Opinion, 9/28/2018, at 10-11 (record citations omitted).
Again, we agree with the trial court’s determination and affirm on the
basis of the court’s opinion, but mention several additional comments. First,
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it merits emphasis that Quivers does not challenge the court’s finding that Dr.
Yodice was not qualified to opine on intraoperative care,15 only that the
redaction of his direct testimony created confusion. As such, Quivers is bound
by that determination. Second, to the extent Quivers argues the court erred
in permitting Dr. Yodice to be cross-examined regarding testimony at issue,
and then overruled her motion to play the portions of Dr. Yodice’s direct
examination testimony that discussed intraoperative blood pressures and
heart rates after the cross-examination had been played for the jury, we find
this issue waived for failure to raise with the trial court. See Pa.R.A.P. 302(a).
As noted above, counsel for Dr. Osowski provided counsel for Quivers with the
opportunity to cross-designate any portion of the doctor’s cross-examination
that she found questionable and she declined to do so. See N.T., 6/14/2017,
at 295-296. Moreover, a review of the transcripts does not reveal that Quivers
requested the court play portions of Dr. Yodice’s direct examination testimony
after the cross-examination had been played for the jury. See id. at 391-
____________________________________________
15 See Medical Care Availability and Reduction of Error Act ("MCARE"), 40
P.S. §§ 1303.101-1303.910; Vicari v. Spiegel, 989 A.2d 1277, 1280 (Pa.
2010) (“With passage of the MCARE Act, the General Assembly created a more
stringent standard for admissibility of medical expert testimony in a medical
malpractice action by the imposition of specific additional requirements not
present in the common law standard.”); Anderson v. McAfoos, 57 A.3d 1141
(Pa. 2012) (all three 40 P.S. § 1303.512(c) requirements – (1) familiarity with
standard of care, (2) same subspecialty, and (3) same board certification –
are mandatory in order for an expert witness to testify on a medical matter in
a medical malpractice action against a defendant physician).
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393.16 Notably, Quivers does not cite to the part in record where she made
the motion.17 See Quivers’ Brief at 55. Lastly, with respect to her “number
of witnesses” contention, the trial court did instruct the jury not to only
consider the number of witnesses each side presents, but rather “the quality
of the testimony of each witness.” N.T., 6/23/2017, at 1523. See Maya v.
Johnson & Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014) (“The law
presumes that the jury will follow the instructions of the court.”), appeal
denied, 112 A.3d 653 (Pa. 2015). Accordingly, Quivers’ final claim fails.
Judgment affirmed.
Judge Musmanno joins the memorandum.
Judge Kunselman files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2019
____________________________________________
16 Our review of the trial transcript reveals an objection made by counsel for
Dr. Osowski regarding a portion of Dr. Yodice’s deposition but there was no
comment by counsel for Quivers. See N.T., 6/14/2017, at 391-392.
17 See Pa.R.A.P. 2119(c); see also B.G. Balmer & Co. v. Frank Crystal &
Co., 148 A.3d 454, 468 (Pa. Super. 2016) (stating that this Court “will not
scour the record in order to find support for statements made by litigants in
their briefs.”).
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