Lingham, G. v. Faison, G.

J-A28029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREGORY LINGHAM, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GLORIA FAISON,
Appellee No. 530 EDA 2016
Appeal from the Judgment Entered April 12, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 140903148
BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 11, 2017
Appellant, Gregory Lingham (“Lingham”), appeals from the April 12,
2016 judgment entered on a jury verdict in favor of Gloria Faison (“Faison”).
Lingham initiated the underlying personal injury/negligence action following
an automobile accident in which Faison struck Lingham’s vehicle. We affirm.
The trial court set forth the relevant facts and procedural history of
this matter as follows:
On October 4, 2012, [Lingham] was driving his car and
stopped for a red light near the intersection of Diamond Street
and Sedgley Street in Philadelphia, Pennsylvania. N.T. 10/26/15
at 60. While [Lingham] was waiting for the light to turn green,
his vehicle was rear-ended by [Faison’s] car, resulting in minor
body damage to both cars. Id. at 60-62, 64-65, 103-104.
[Faison] did not dispute that she hit [Lingham], but did claim
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*
Retired Senior Judge assigned to the Superior Court.
J-A28029-16
that the stoplight was green and that [Lingham] had inexplicably
stopped “in the road,” rather than at the light itself, and that
[Lingham’s] brake lights were not illuminated. See id. at 98,
108. [Lingham] and [Faison] spoke briefly after the accident,
and police officers arrived a short time later, but neither
individual requested medical assistance. Id. at 63, 101-104, 113.
Both parties then left the scene in their respective vehicles. N.T.
10/26/15 at 63, 104. [Lingham] then took care of a few family
matters, and subsequently made his way to Lankenau Hospital’s
emergency room, where he was examined, given a prescription
muscle relaxer for neck and back pain, and then discharged. Id.
at 63-64.
Approximately one week after the accident, [Lingham]
went to Progressive Rehab to start a physical therapy regimen
that included heat applications, electric stimulation, lidocaine
injections, and various exercises. N.T. 10/26/15 at 66-70; N.T.
10/27/15 at 48-49. Lingham received treatment at Progressive
several times a week for roughly six months, but eventually
stopped therapy due to his belief that this rehabilitation program
was not working. N.T. 10/26/15 at 70. He then went to Pain
Management & MRI facility on April 24, 2013, where he was seen
by a doctor who recommended that Lingham should come back
in four-to-six weeks for a follow-up visit and additional care. Id.
at 70-72; N.T. 10/27/15 at 50-52. Despite this advice, Lingham
never returned to Pain Management & MRI facility. N.T.
10/27/15 at 52-53. Lingham continued to take prescription
painkillers, but failed to seek any further medical care for the
next year and a half. N.T. 10/26/15 at 71-72; N.T. 10/27/15 at
53.
[Lingham] subsequently engaged the services of an
attorney who filed suit against Faison on September 23, 2014. At
[Lingham’s] lawyer’s recommendation, [Lingham] went to a
medical facility in Oaks, Pennsylvania for additional treatment.
N.T. 10/26/15 at 73.3 In turn, the staff at this facility referred
him to North American Spine and Pain Center where he was
evaluated by Dr. Kieran Slevin. On November 24, 2014, in his
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office, Dr. Slevin performed a rhizotomy[1] on portions of
[Lingham’s] cervical spine. Id. at 72-73, 75-78.
3
[Lingham] never provides a name for this facility in
Oaks, Pa.
On October 26, 2015, this case proceeded to a jury trial
that was presided over by this [c]ourt. Prior to trial beginning,
Faison’s attorney filed an oral motion-in-limine to preclude very
limited portions of pre-trial videotaped trial testimony [of
Lingham’s] expert Dr. Vincent DiStefano, regarding the nature of
rhizotomy procedures, as well as whether it was reasonable and
necessary for Lingham to receive this procedure under the
circumstances. Id. at 3-7. [Faison’s] counsel argued that Dr.
DiStefano did not hold a sufficient level of specialized knowledge
regarding rhizotomies and was therefore not qualified to render
an opinion regarding whether this procedure was reasonable or
necessary. After oral argument, this [c]ourt determined that Dr.
DiStefano had insufficient knowledge, experience, or expertise
regarding the rhizotomy procedure and that [Lingham] was
thereby precluded from present[ing] that very limited portion of
Dr. DiStefano’s videotaped trial deposition as to whether
[Lingham’s] rhizotomy procedure was reasonable and necessary
under the circumstances. Id. at 4-5, 12-15.
The parties then presented their respective cases, and [the
jurors] began their deliberations on October 27, 2015. The jury
verdict found that while [Faison’s] admitted negligence caused
the accident, [Lingham] did not suffer a serious impairment of a
bodily function. As a result of this finding, [Lingham] was not
awarded any non-economic damages.[2] See N.T. 10/27/15 at
122-24; Trial Worksheet at 1.
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1
“[A] rhizotomy is a procedure where nerves along the spinal column are
burned or severed, which prevents those nerves from transmitting sensory
impulses to the brain. This can provide the recipient with pain relief in the
areas of the body previously served by the operated-upon nerves.” Trial
Court Opinion, 4/13/16, at 2 n.2 (internal citations and quotation marks
omitted).
2
Lingham selected the limited tort option in his policy of automobile
insurance. The trial court explained the ramifications of selecting limited
(Footnote Continued Next Page)
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On November 4, 2015, [Lingham] filed his Post-Trial
Motion arguing that this [c]ourt had improperly precluded the
limited portion of Dr. DiStefano’s video-taped testimony and that
he should be given a new trial as a result. Post-Trial Motion at 2-
8.
On November 5, 2015, this Court ordered both parties to
submit supplemental briefs addressing this issue. Ceisler Order,
11/5/15 at 1. Finding [Lingham’s] arguments to be completely
unpersuasive, this [c]ourt denied [Lingham’s] Post-Trial Motion
via an order docketed on January 29, 2016. Ceisler Order,
1/27/16 at 1….
Trial Court Opinion, 4/13/16, at 2-4.
On April 12, 2016, Lingham filed his notice of appeal,3 and both
Lingham and the trial court complied with Pa.R.A.P. 1925. On appeal,
Lingham presents the following issues for this Court’s consideration:
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(Footnote Continued)
tort, as opposed to the full tort insurance option, as follows: “a person who
elects to purchase a car insurance policy that provides only limited tort
coverage cannot recover non-economic damages under most circumstances,
until he has suffered a ‘serious injury’ in [a] car accident due to another’s
negligence. 75 Pa.C.S. § 1705(d).” Trial Court Opinion, 4/13/16, at 1-2,
n.1. “‘Serious injury’ is defined as ‘a personal injury resulting in death,
serious impairment of body function or permanent serious disfigurement.’
[75 Pa.C.S. §] 1702.” Id. Because Lingham failed to prove to the jury that
he suffered any serious bodily injury, the jury returned a verdict in favor of
Faison. Id. at 1 (citing Jury Verdict-Civil Trial Worksheet, 10/27/15 at
unnumbered 1).
3
The record reflects that Lingham filed his notice of appeal on February 5,
2016, prior to the entry of judgment. However, Lingham filed a praecipe for
the entry of judgment in favor of Faison, and judgment was entered on April
12, 2016. Accordingly, we shall address the merits of this appeal. See
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 515
(Pa. Super. 1995) (holding that this Court was not required to quash the
(Footnote Continued Next Page)
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1. Whether [t]he trial court abused its discretion and otherwise
committed error of law when it precluded Dr. Vincent DiStefano
from testifying regarding the reasonableness, necessity and
relatedness of [Lingham’s] surgical procedure.
2. Whether the trial court abused its discretion and otherwise
committed error of law when it based its opinion for precluding
Dr. DiStefano’s testimony regarding the reasonableness,
necessity and relatedness of [Lingham’s] surgical procedure on
Dr. DiStefano’s testimony stating he does not know what the
standard of care is for a pain management doctor.
3. Whether the trial court abused its discretion and otherwise
committed error of law when it precluded Dr. Vincent DiStefano
from testifying regarding the reasonableness, necessity and
relatedness of [Lingham’s] surgical procedure when [Faison]
never filed a Motion in Limine stating her grounds for precluding
that testimony.
Lingham’s Brief at 6.4
In Lingham’s first two issues, he alleges the trial court erred in ruling
that Dr. DiStefano was not qualified to testify as an expert concerning
whether the rhizotomy Lingham underwent was reasonable, necessary, and
related to the motor vehicle accident. We review such a challenge bearing in
mind the following principles:
In order to qualify as an expert witness in a given field, a
witness normally need only possess more expertise than is
within the ordinary range of training, knowledge, intelligence, or
experience. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474,
481, 664 A.2d 525, 528 (1995). Thus, ordinarily, the test to be
applied when qualifying an expert witness is whether the witness
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(Footnote Continued)
appeal and could address the merits of an appellant’s claims where
judgment was entered after the notice of appeal was filed).
4
We have renumbered Lingham’s issues for purposes of our discussion.
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has any reasonable pretension to specialized knowledge on the
subject under investigation. Id. at 480, 664 A.2d at 528
(emphasis original).
Freed v. Geisinger Medical Center, 971 A.2d 1202, 1206 (Pa. 2009).
Moreover, our Rules of Evidence provide as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.E. 702. Ultimately, the determination as to whether a witness is
qualified to testify as an expert is left to the discretion of the trial court.
Wexler v. Hecht, 847 A.2d 95, 98 (Pa. Super. 2004).
Here, the trial court addressed Lingham’s challenge to its ruling on Dr.
DiStefano’s testimony as follows:
[Lingham’s] challenge to this [c]ourt’s limited preclusion of
Dr. DiStefano’s testimony fails for two reasons. First, [Lingham]
has failed to offer any explanation as to how he was prejudiced
by this ruling. See Post-Trial Motion at 5. The jury heard ample
evidence regarding the fact that [Lingham] did in fact undergo a
rhizotomy procedure—that was never in dispute. The jury heard
and saw ample evidence regarding the nature and extent of his
injuries5 and thus had a more than sufficient evidentiary basis
for evaluating the severity of his injuries. Whether the rhizotomy
was reasonable or necessary was irrelevant. The fact is that
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[Lingham] underwent the procedure, the jury heard all about it,
and could consider this evidence in determining whether he
sustained a serious injury.
5
This evidence included a video presented by
[Faison] which showed [Lingham] actually preaching
at a Baptist church in December 2013 with
impressive physical vigor and animation, despite his
claim of serious physical impairment due to the
October 2012 accident. See N.T. 10/27/15 at 62-66.
Second, the evidence clearly indicated that Dr. DiStefano
possessed nothing more than a vague understanding of the
rhizotomy procedure, and was completely unequipped to provide
the jury with competent, accurate expert testimony regarding
the putative reasonableness and necessity of Lingham’s
November 24, 2014 surgery. Dr. DiStefano has never performed
a rhizotomy procedure, and his only “experience” with the
procedure was watching someone else perform it nearly five
decades ago. DiStefano Deposition at 10, 35. In fact, Dr.
DiStefano has not done a single cervical spine operation during
the entirety of his professional career. Id. at 10. Moreover, by
his own words, Dr. DiStefano expressly stated that he did not
know what kind of medicine Dr. Slevin specialized in, nor did he
know what the standard of care was for this procedure. Id. at
55-56.6 In sum, the videotaped deposition of Dr. DiStefano
revealed that he had no real familiarity with rhizotomies, was
unable to provide an appropriate explanation regarding why Dr.
Slevin performed this procedure upon [Lingham], or whether
that decision was medically justifiable under the circumstances.
Accordingly, this [c]ourt properly precluded the portions of Dr.
DiStefano’s videotaped deposition in which he opined about the
reasonableness and necessity of [Lingham’s] rhizotomy surgery.
6
Ms. Samuels: “In this situation, Mr. Lingham,
without a medical recommendation went to Dr.
Slevin, without medical records, without MRI films.
Dr. Slevin spoke to him, examined him and
performed a surgical procedure on him that same
day. Is that the normal standard of care?”
Dr. DiStefano: “It’s not the standard of care in the
areas where I practice. I can’t speak for Dr. Slevin.”
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Trial Court Opinion, 4/13/16, at 6-7 (one footnote omitted) (emphases in
original).
Here, Dr. DiStefano was not precluded from testifying; rather, Dr.
DiStefano was precluded from testifying as an expert regarding rhizotomies.
As the trial court stated, Dr. DiStefano was unable to illustrate any
particularized knowledge of the rhizotomy procedure, he could not identify
the standard of care, and his only familiarity with rhizotomies came from
observing the procedure performed by a physician nearly fifty years ago.
Under the standards discussed above, we discern no abuse of discretion in
the trial court precluding Dr. DiStefano from testifying as an expert with
respect to rhizotomies.
Finally, in Lingham’s third issue, he argues that the trial court erred
when it precluded Dr. DiStefano from testifying because Faison’s counsel did
not file a written motion in limine, but instead made the motion orally.
However, we are constrained to conclude that Lingham waived this claim of
error because he did not raise it in his post-trial motion. See L.B. Foster
Co. v. Lane Enterprises, Inc., 710 A.2d 54 (Pa. 1998) (stating
“Pa.R.Civ.P. 227.1 requires parties to file post-trial motions in order to
preserve issues for appeal. If an issue has not been raised in a post-trial
motion, it is waived for appeal purposes.”).
Assuming, arguendo, that Lingham had properly raised this claim in a
post-trial motion, we would deem the issue waived due to Lingham’s failure
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to present any argument on this issue in his appellate brief. See Jones v.
Jones, 878 A.2d 86, 90 (Pa. Super. 2005) (stating that a failure to argue an
issue and cite authority supporting the argument constitutes a waiver of that
issue on appeal).
For the reasons stated above, we conclude that Lingham is entitled to
no relief. Accordingly, we affirm the judgment entered in favor of Faison.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2017
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