Heimbecker, G. v. Trevlyn, D., M.D.

J. A21033/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
GERARD P. HEIMBECKER, : IN THE SUPERIOR COURT OF
ADMINISTRATOR, C.T.A., : PENNSYLVANIA
ESTATE OF HENRY G. HEIMBECKER, :
A/K/A H. GERARD HEIMBECKER, :
DECEASED; KATHLEEN D. :
HEIMBECKER AND :
THERESA H. SABLOSKY, GUARDIANS :
OF THE ESTATE OF :
KATHLEEN HEIMBECKER, :
AN INCAPACITATED PERSON; :
KATHLEEN D. HEIMBECKER, :
INDIVIDUAL; SUSAN M. HEIMBECKER; :
GERARD P. HEIMBECKER, :
INDIVIDUAL, :
:
Appellants :
:
v. : No. 3465 EDA 2019
:
DEAN TREVLYN, M.D., :
Appellee.
Appeal from the Judgment Entered January 6, 2020,
in the Court of Common Pleas of Delaware County
Civil Division at No. 13-5583
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2020
Gerard P. Heimbecker, administrator of the Estate of Henry G.
Heimbecker (“decedent”), Kathleen Heimbecker and Theresa H. Sablosky,
Guardians of the Estate of Incapacitated Person, Kathleen D. Heimbecker,
Susan M. Heimbecker and Gerard P. Heimbecker (hereinafter, “appellants”)
J. A21033/20
appeal from the January 6, 2020 judgment entered in favor of
Dr. Dean Trevlyn, and against appellants, in this medical malpractice action
in the Court of Common Pleas of Delaware County. After careful review, we
affirm.
The trial court1 aptly summarized the facts as follows:
. . . [T]he [d]ecedent had been at the shore with his
family for Memorial Day weekend in 2011. On June 1,
2011, while pulling a cart from the beach the
[d]ecedent felt a “tweak in his left shoulder and had a
little bit of discomfort.” When the pain in his shoulder
grew worse and his wrist became swollen, the
[d]ecedent called his primary care physician,
Dr. Friedrich, who advised the [d]ecedent to take
some aspirin and call back the next day. The next day
the [d]ecedent called the doctor’s office again, and it
was suggested that he may have a rotator cuff injury.
The [d]ecedent was advised to go see Dr. Trevlyn.
The [d]ecedent returned home from the shore on
Sunday June 5, 2011 and on Monday June 6, 2011,
the [d]ecedent called Dr. Trevlyn and was given an
appointment that same day. According to the
[d]ecedent’s daughter, Susan Heimbecker,
Dr. Trevlyn diagnosed the [d]ecedent with gout, gave
him a prescription for Indocin for the gout and a
prescription for an MRI of his shoulder. A few days
later, on June 9, 2011[,] the [d]ecedent was found
unresponsive and slumped over in a chair in his
bedroom. He was taken by ambulance to Delaware
County Hospital where he remained for a few hours
before being transferred to Jefferson Hospital.
Unfortunately, the [d]ecedent passed away on
June 12, 2011.
1 We note that the trial judge, the Honorable Charles B. Burr, II, retired shortly
after trial. The case was transferred to the Honorable John J. Whelan, who
decided appellants’ motion for post-trial relief and authored the
Pa.R.A.P. 1925(a) opinion. For ease of discussion, we will refer to the post-
trial court as the trial court.
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. . . Appellants offered Dr. Steven Graboff, an expert
in orthopedic medicine, who opined that Dr. Trevlyn
was negligent and breached the standard of care.
According to Dr. Graboff, when the [d]ecedent
presented in Dr. Trevlyn’s office complaining of
shoulder pain and a swollen wrist, the standard of care
required Dr. Trevlyn to emergently admit the
[d]ecedent to the hospital and have him seen by
internal medicine and infectious disease doctors.
Dr. Graboff opined that Dr. Trevlyn misdiagnosed the
[d]ecedent’s wrist as having gout as opposed to an
infection and opined that he should have begun
immediate treatment as though the wrist was infected
“because that could potentially kill him.” According to
Dr. Graboff, the [d]ecedent had a wrist infection that
got into his blood and ultimately killed him.
. . . Dr. Trevlyn recounted that the [d]ecedent came
to see him on June 6, 2011. The [d]ecedent explained
that he had been pulling a beach cart and had felt a
pull in his left shoulder. The [d]ecedent further
explained that after that the pain increased to a point
that he was having trouble moving his shoulder and
that he had also developed pain and swelling in his
left hand. Dr. Trevlyn examined the [d]ecedent and
found that he presented with a likely rotator cuff tear
in his shoulder, and an MRI was ordered. Dr. Trevlyn
also examined the [d]ecedent’s wrist, which was
swollen and warm. Dr. Trevlyn found that he
presented with gout. Dr. Trevlyn opined, “[t]hen I
looked into his medical history. He has a history --
he’s an older man. He has a history of hypertension.
He has a history of diabetes. He has a history of high
cholesterol. He’s on certain medications. And all
these things are risk factors for gout. I know based
on my training and my experience that the most
common cause of a warm, red, swollen, painful wrist
is gout. That day I made the diagnosis of gout based
on that.” Accordingly, Dr. Trevlyn treated the gout
with medication and told the [d]ecedent to follow up
with him if the pain persisted over the next one to two
days. Dr. Trevlyn explained that the [d]ecedent did
not have any signs of an infection, such as a cut or
open sore. As to the cause of the [d]ecedent’s death,
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Dr. Trevlyn explained that it was his understanding
that the autopsy did not show that the wrist
contributed to the [d]ecedent’s death. According to
Dr. Trevlyn, the [d]ecedent died of bacterial
endocarditis.
In addition, Dr. Trevlyn called two experts in his
defense, Dr. John Lewis Esterhai and Dr. Peter McCue.
Both doctors testified that based upon their training
and experience they were of the opinion to a
reasonable degree of medical certainty that
Dr. Trevlyn’s treatment of the [d]ecedent met the
standard of care, and they stated that Dr. Trevlyn was
not negligent. Dr. Esterhai, an expert in the field of
orthopedic surgery, opined that the [d]ecedent had an
infection on his heart valve that showered into his
blood stream and ultimately caused his death.
According to Dr. Esterhai, “Dr. Trevlyn did not
contribute to this patient’s death. It is unfortunate
that he had endocarditis that became bacterial
endocarditis that then showered his bloodstream and
his brain and likely his heart with bacteria. But that
was not in any way, shape or form something that
Dr. Trevlyn had any knowledge of, could have known
about or could have made any difference in.”
Dr. Esterhai stated that a review of the records
showed that the [d]ecedent did not have a wrist
infection, but merely had inflammation of the wrist.
He explained that inflammation and infection are not
synonymous. . . . According to Dr. Esterhai, gout was
the proper diagnosis based upon the [d]ecedent’s
presentation and his risk factors.[Footnote 2]
[Footnote 2] Dr. Esterhai testified that the
[d]ecedent had six risk factors for gout.
Dr. McCue, an expert in the areas of anatomic
pathology neuropathology and clinical pathological
causes of death, testified that he reviewed the
[d]ecedent’s medical records and autopsy report and
concluded that the [d]ecedent suffered from bacterial
endocarditis. Dr. McCue explained that the bacterial
endocarditis that affected the [d]ecedent’s heart
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valves spread to his brain and eventually caused him
to lose function in his brain, and lose function in his
heart, and that “he just died.”
Dr. McCue explained that the medical records, which
showed no joint destruction, ruled out an infection of
the [d]ecedent’s wrist. He explained that bacterial
endocarditis is a destruction of the heart valve, and
that it had been sitting there for weeks and did not
arise over the course of the five days following the
[d]ecedent’s visit to Dr. Trevlyn. Dr. McCue explained
that had the wrist had an infection that contributed to
the [d]ecedent’s death it would have been noted on
the final diagnosis of the autopsy report.
Trial court Rule 1925(a) opinion, 2/25/20 at 1-5 (citations to record omitted).
On November 15, 2018, a jury rendered its verdict in favor of
Dr. Trevlyn. Appellants filed a motion for post-trial relief on November 26,
2018.2 The trial court denied the motion on November 8, 2019. Appellant
timely filed a notice of appeal on December 6, 2019. The trial court ordered
appellants to file a Pa.R.A.P. 1925(b) statement, which they filed on December
30, 2019.
The record reflects that on December 27, 2019, this court entered an
order directing appellants to praecipe the trial court prothonotary to enter
judgment and file with the prothonotary of this court, within ten days, a
certified copy of the trial court docket reflecting the entry of judgment in order
2The tenth day following the verdict fell on a Sunday. Accordingly, appellants’
motion for post-trial relief was timely filed on Monday November 26, 2018.
See 1 Pa.C.S.A. § 1908 (providing whenever last day of a period of time
referred to in a statute falls on Saturday, Sunday, or legal holiday such day is
omitted from computation).
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to comply with Pa.R.A.P. 301, which sets forth the requirements for a final
appealable order. (See order of court, 12/27/19.) This court further ordered
that when appellants complied with Rule 301, this court would treat appellants’
previously filed notice of appeal as filed after the entry of judgment.
Appellants timely complied. The record reflects that judgment was entered in
favor of Dr. Trevlyn on January 6, 2020. By order entered January 8, 2020,
this court discharged its December 27, 2019 order. The trial court filed its
Rule 1925(a) opinion on February 25, 2020.
Appellants raise the following issues on appeal:
[1]. [Whether as] a matter of law and an abuse of
discretion, the trial court erred in failing to grant
[] appellants’ motion for judgment
notwithstanding the verdict and, in the
alternative, motion for a new trial[?]
[2]. [Whether as] a matter of law and an abuse of
discretion, the trial court erred in [sic] when it
precluded the testimony of [] appellants’ two
expert witnesses which prejudiced [] appellants’
case[?]
[3]. [Whether as] a matter of law and an abuse of
discretion, the trial court erred in precluding the
admission of [] appellants’ three (3) minute
video which prejudiced [] appellants’ case[?]
[4]. [Whether as] a matter of law and an abuse of
discretion, the trial judge’s behavior, both on
and off the record, demonstrated prejudice to []
appellants. Consequently, [] appellants’ motion
for the new trial should have been granted[?]
Appellants’ brief at iv (extraneous capitalization omitted).
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Appellants first contend the trial court erred in failing to grant their
motion for judgment notwithstanding the verdict or a new trial. As to each
motion, appellants’ argue the verdict was against the weight of the evidence.
(See id. at 17, 18.) Appellants maintain that the undisputed testimony
established that Dr. Trevlyn breached the standard of care with respect to the
decedent. (Id. at 18.)
We recognize the following standard of review with regard to ruling on
a motion for judgment notwithstanding the verdict:
We will reverse a trial court’s grant or denial of a
judgment notwithstanding the verdict only when we
find an abuse of discretion or an error of law that
controlled the outcome of the case. Further, the
standard of review for an appellate court is the same
as that for a trial court.
There are two bases upon which a judgment
[notwithstanding the verdict] can be entered; one, the
movant is entitled to judgment as a matter of law
and/or two, the evidence is such that no two
reasonable minds could disagree that the outcome
should have been rendered in favor of the movant.
With the first, the court reviews the record and
concludes that, even with all factual inferences
decided adverse to the movant, the law nonetheless
requires a verdict in his favor. Whereas with the
second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict
for the movant was beyond peradventure.
United Environmental Group, Inc. v. GKK McKnight, LP, 176 A.3d 946,
959 (Pa.Super. 2017) (citation omitted). “For purposes of JNOV [judgment
notwithstanding the verdict], the trial court [is] required to view the evidence
in the light most favorable to the verdict winner . . . and determine whether
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the evidence was sufficient to support the verdict.” Huyett v. Doug’s Family
Pharmacy, 160 A.3d 221, 229 (Pa.Super. 2017), appeal denied, 172 A.3d
1116 (Pa. 2017). “The propriety of a JNOV is a question of law, and therefore,
our scope of review is plenary.” Corvin v. Tihansky, 184 A.3d 986, 990
(Pa.Super. 2018) (citation omitted).
In reviewing the trial court’s denial of a new trial, we apply the following
standard of review:
We will reverse a trial court’s decision to deny a
motion for a new trial only if the trial court abused its
discretion. We must review the court’s alleged
mistake and determine whether the court erred and,
if so, whether the error resulted in prejudice
necessitating a new trial. If the alleged mistake
concerned an error of law, we will scrutinize for legal
error. Once we determine whether an error occurred,
we must then determine whether the trial court
abused its discretion in ruling on the request for a new
trial. An abuse of discretion exists when the trial court
has rendered a judgment that is manifestly
unreasonable, arbitrary, or capricious, has failed to
apply the law, or was motivated by partiality,
prejudice, bias, or ill will.
Bowman v. Rand Spear & Assoc., P.C., 234 A.3d 848, 865 (Pa.Super.
2020) (citation omitted). “A new trial is granted only where the verdict is so
contrary to the evidence as to shock one’s sense of justice, not where the
evidence is conflicting or where the court might have reached a different
conclusion on the same facts.” Braun v. Target Corp., 983 A.2d 752 760
(Pa.Super. 2009) (citation omitted), appeal denied, 987 A.2d 158 (Pa.
2009). “[W]hen reviewing the denial of a motion for new trial, we must
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determine if the trial court committed an abuse of discretion or error of law
that controlled the outcome of the case.” Estate of Hicks v. Dana
Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal
denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).
Further, in a medical malpractice action:
When the alleged negligence is rooted in professional
malpractice, the determination of whether there was
a breach of duty comprises two steps: first, a
determination of the relevant standard of care, and
second, a determination of whether the defendant’s
conduct met that standard. Furthermore, to establish
the causation element in a professional malpractice
action, the plaintiff must show that the defendant’s
failure to exercise the proper standard of care caused
the plaintiff’s injury.
Freed v. Geisinger Medical Center, 910 A.2d 68, 72 (Pa.Super. 2006)
(citations omitted).
Here, the trial court found as follows:
Based upon the evidence presented at trial, and
despite [a]ppellants’ arguments to the contrary, it was
both reasonable and logical for the jury to conclude
that Dr. Trevlyn was not negligent. When viewing the
evidence in the light most favorable to the defense,
both Dr. Esterhai and Dr. McCue testified that they did
not find that Dr. Trevlyn breached the standard of
care. In fact, Dr. Esterhai testified that he would have
come to the same diagnosis had the [d]ecedent
presented to him with the same symptoms he showed
on June 6, 2011. Despite the fact that [a]ppellants’
expert[,] Dr. Graboff[,] concluded that Dr. Trevlyn
was negligent and did contribute to the [d]ecedent’s
death[,] the jury was free to disbelieve this testimony.
It is evident from the verdict that jury found that
Dr. Trevlyn’s conduct did not fall beneath the standard
or care. The jury chose to believe the experts
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presented by [Dr. Trevlyn] – which [sic] opined that
the [d]ecedent died of bacterial endocarditis – which
had nothing to do with the ailment in his wrist that
presented during his visit to Dr. Trevlyn’s office. . . .
[Furthermore, s]everal experts testified regarding
Dr. Trevlyn’s treatment of the [d]ecedent on June 6,
2011. Dr. Graboff testified at length that he believed
that Dr. Trevlyn misdiagnosed the [d]ecedent and
should have treated him for an infection of his wrist.
Drs. Esterhai and McCue refuted this theory. For
example, Dr. Esterhai testified at trial[,] to a
reasonable degree of medical certainty[,] that
Dr. Trevlyn did not contribute to the patient’s death.
While he lamented that it was unfortunate that the
[d]ecedent “had endocarditis that became bacterial
endocarditis that then showered his bloodstream and
his brain and likely his heart with bacteria, it was not
in any way shape or form something that Dr. Trevlyn
had any knowledge of or could have known.” See
[notes of testimony], 11/14/18 [at] 140. As noted
. . . . the credibility and weight given to this expert
opinion was for the jury to decide. See Casselli v.
Powland, 937 A.2d 1137, 1139 (Pa.Super. 2007);
Lykes v. Yates, 77 A.3d 27, 32 (Pa.Super. 2013).
Trial court Rule 1925(a) opinion, 2/25/20 at 9-10. The trial court found that
the verdict rendered in this case was not against the weight of the evidence,
and appellants were not entitled to a JNOV or a new trial. (Id.)
We find the trial court comprehensively addressed this claim and adopt
its well-reasoned analysis as our own. The jury concluded that Dr. Trevlyn’s
treatment was not the cause of the decedent’s death. Further, our review of
the record reveals that neither the Anatomic Autopsy Report of July 18, 2011,
prepared by Dr. John L. Farber of Jefferson University Hospital, the
Neuropathology Autopsy Report of September 9, 2011, prepared by Dr. Mark
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T. Curtis, nor the decedent’s death certificate reference decedent’s wrist or
any infection originating therefrom. (See appellants’ trial exhibits P-12,
P-13.) Accordingly, we find no error or abuse of discretion by the trial court’s
denial of appellants’ post-trial motion for JNOV or a new trial.
In their second issue, appellants contend the trial court erred in
precluding the testimony of Dr. David L. Dorsky, an infectious disease expert,
and Dr. Hervey S. Sicherman, an orthopedic surgeon, two of appellants’
proposed experts. (See post-trial opinion, 2/25/20 at 11-12.) Prior to trial,
Dr. Trevlyn filed motions in limine to preclude their testimony, which the trial
court granted on November 9, 2018.3 Appellants claim that these doctors:
would have testified [Dr.] Trevlyn deviated from the
standard of care by failing to perform routine
diagnostic tests that would have ruled out the
presence of an infection; that [Dr.] Trevlyn should
have determined whether or not [decedent] had a
fever; that [Dr.] Trevlyn should have performed an
arthrocentesis of the inflamed wrist, and he should
have performed laboratory studies that would have
included a complete blood count. The failure of the
trial court to allow the jury to hear the testimony of
both doctors prejudiced the appellants’ case.
Appellants’ brief at 23 (citations to reproduced record omitted).
A trial court’s decision to grant or deny a motion in limine is subject to
an evidentiary abuse of discretion standard of review. Dibish v. Ameriprise
Financial, Inc., 134 A.3d 1079, 1095 (Pa.Super. 2016) (citation omitted),
3 Dr. Trevlyn’s motion in limine to preclude the testimony of appellants’
expert, Dr. Steven Graboff, was denied.
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appeal denied, 141 A.3d 481 (Pa. 2016). Our standard of review with regard
to the admission or exclusion of expert testimony is that “[t]he admission of
expert testimony is within the trial court’s sound discretion and we will not
disturb that decision without a showing of manifest abuse of discretion.”
Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 522
(Pa.Super. 2009) (citation omitted).
An abuse of discretion may not be found merely
because an appellate court might have reached a
different conclusion, but requires a result of 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.
Catlin v. Hamburg, 56 A.3d 914, 920 (Pa.Super. 2012) (citations omitted),
appeal denied, 74 A.3d 124 (Pa. 2013).
In determining whether the opinion testimony of an expert witness in a
medical malpractice case is admissible, “the testimony must be rendered
within a reasonable degree of medical certainty. The trial court must look to
the substance and the entirety of the testimony in order to determine whether
it meets this standard.” Winschel v. Jain, 925 A.2d 782, 794 (Pa.Super.
2007) (citation omitted), appeal denied, 940 A.2d 366 (Pa. 2008).
An expert witness proffered by a plaintiff in a medical
malpractice action is required to testify to a
reasonable degree of medical certainty, that the acts
of the physician deviated from good and acceptable
medical standards, and that such deviation was the
proximate cause of the harm suffered. However,
expert witnesses are not required to use magic words
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when expressing their opinions; rather, the substance
of their testimony must be examined to determine
whether the expert has met the requisite standard.
Tillery v. Children’s Hosp. of Philadelphia, 156 A.2d 1233, 1240
(Pa.Super. 2017) (citation omitted), appeal denied, 172 A.3d 592 (Pa.
2017). However, “an expert fails this standard of certainty if he testifies that
the alleged cause ‘possibly’, or ‘could have’ led to the result, that it ‘could very
properly account’ for the result, or even that it was ‘very highly probable’ that
it caused the result.” Rolon v. Davies, 232 A.3d 773, 777 (Pa.Super. 2020)
(citation omitted).
We first consider whether the trial court correctly excluded the expert
opinion testimony of Dr. Dorsky. Our review of Dr. Dorsky’s January 21, 2016
report reveals the following:
[I]t is more likely than not that [the decedent]
developed bacterial endocarditis as a consequence of
the spread of the infection from his wrist to his heart
via the bloodstream.
On June 9, 2011 [the decedent] suffered an embolic
stroke that was the proximal cause of his death. The
embolic stroke was more likely than not a
complication of his having bacterial endocarditis
involving his aortic valve. More likely than not there
had been vegetation on his aortic valve due to the
endocarditis, and it is more likely than not that the
vegetation broke away from the valve and traveled
through the bloodstream to his brain, causing the
stroke.
The failure of Dr. Trevlyn and the improper diagnosis
of gout increased the risk of harm, including death, to
[the decedent].
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Dr. Dorsky’s report, 1/21/16 at 2 (emphasis added).
Based on the above language, we find that Dr. Dorsky’s expert opinion
was not expressed with the requisite degree of medical certainty. Thus, the
trial court did not abuse its discretion in excluding Dr. Dorsky’s testimony.
(See notes of testimony, 11/9/18 at 119, 138-145.)
Appellants further contend the trial court erred in precluding the
testimony of Dr. Sicherman. Initially, we note that although appellants
specifically objected to the exclusion of Dr. Dorsky’s testimony,4 they did not
object to the exclusion of Dr. Sicherman’s testimony.
It is axiomatic that [i]n order to preserve an issue for
appellate review, a party must make a timely and
specific objection at the appropriate stage of the
proceedings before the trial court. Failure to timely
object to a basic and fundamental error will result in
waiver of that issue. On appeal, we will not consider
assignments of error that were not brought to the
tribunal’s attention at a time at which the error could
have been corrected or the alleged prejudice could
have been mitigated. In this jurisdiction one must
object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to
afford the jurist hearing the case the first occasion to
remedy the wrong and possibly avoid an unnecessary
appeal to complain of the matter.
State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa.Super. 2015),
appeal denied, 116 A.2d 605 (Pa. 2015). Thus, any issue regarding the
exclusion of Dr. Sicherman’s testimony was not properly preserved for appeal.
See also Trigg v. Children’s Hospital of Pittsburgh of UPMC, 229 A.3d
4 See notes of testimony, 11/9/18 at 157.
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260, 269 (Pa. 2020); Pa.R.A.P. 302(a) (“Issues not raised in the trial court
cannot be raised for the first time on appeal.”).
Even had appellants properly preserved this issue, it would not merit
relief. In his report of March 29, 2016, Dr. Sicherman opines:
It is my opinion that Dr. Trevlyn deviated from the
standards of accepted care in his treatment of [the
decedent]. . . . If Dr. Trevlyn had obtained these
appropriate studies, it is more probable than not
that the patient would have been diagnosed as having
had an infection and would have received more
immediate and appropriate treatment. . . .
Again, if Dr. Trevlyn had performed appropriate
diagnostic studies, it is more probable than not
that a diagnosis of septic arthritis would have been
made earlier and more likely than not appropriate
treatment would have started which would markedly
have diminished [the decedent]’s chance of
developing diffuse sepsis with embolic stroke which
led to his death.
All of my opinions have been expressed within a
reasonable degree of medical probability and
certainty.
Dr. Sicherman’s report, 3/29/16 at 2 (emphasis added). Thus,
Dr. Sicherman’s expert opinion was not expressed with the requisite degree
of medical certainty.
The trial court further found Dr. Sicherman’s testimony duplicative of
appellants’ other medical expert, Dr. Steven Graboff.
[T]his [trial] court submits there was no abuse of
discretion in excluding the testimony of
Dr. Sicherman, whose testimony would have been
duplicative of Dr. Graboff. Dr. Graboff testified at
length as to the issues of liability and causation at
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trial. The record reflects that Drs. Dor[sk]y and
Sicherman would have offered similar if not identical
opinions to Dr. Graboff. Accordingly, this [trial] court
submits that [a]ppellants were in no way prejudiced
by Judge Burr’s rulings.
Trial court Rule 1925(a) opinion, 2/25/20 at 13. Further, Pennsylvania Rule
of Evidence 403 provides that a trial “court may exclude relevant evidence if
its probative value is outweighed by a danger of one or more of the following:
. . . needlessly presenting cumulative evidence.” Pa.R.E. 403. See Flenke
v. Huntington, 111 A.3d 1197, 1202 (Pa.Super. 2015) (stating cumulative
evidence properly excluded under Pa.R.E. 403). Thus, we also discern no
error or abuse of discretion in the trial court’s precluding the expert testimony
of Dr. Sicherman. Appellants’ second issue does not, therefore, merit relief.5
The third issue presented is that the trial court erred in precluding
appellants from “showing [] a three (3) minute video demonstrating the
vibrancy of the decedent’s life prior to seeing [Dr.] Trevlyn on June 6, 2011,”
thereby prejudicing appellants. (Appellants’ brief at 28.) Appellants further
assert that “to the extent that a videotape of the decedent is relevant as to
damages, it should have been admitted as evidence.” Id. at 30, citing to
5 We note there is no support for appellants’ claim that they were prejudiced
because they fail to explain how the testimony of Drs. Dorsky and Sicherman
differed from appellants’ other medical expert, Dr. Graboff, who did testify.
Rather, appellants assert “there is no unfair prejudice to [Dr. Trevlyn] merely
because the testimony is effective and it should have been admitted.”
(Appellants’ brief at 28.)
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Quinby v. Plumsteadville Family Practice, 907 A.2d 1061, 1065-1066 (Pa.
2006). We disagree.
Our standard of review of evidentiary rulings is as follows:
Questions regarding the admissibility or exclusion of
evidence are also subject to the abuse of discretion
standard of review. Pennsylvania trial judges enjoy
broad discretion regarding the admissibility of
potentially misleading and confusing evidence.
Relevance is a threshold consideration in determining
the admissibility of evidence. A trial court may,
however, properly exclude evidence if its probative
value is substantially outweighed by the danger of
unfair prejudice. Generally[,] for the purposes of this
evidentiary rule, “prejudice” means an undue
tendency to suggest a decision on an improper basis.
The erroneous admission of harmful or prejudicial
evidence constitutes reversible error.
Rohe v. Vinson, 158 A.3d 88, 95 (Pa.Super. 2016), appeal denied, 176
A.3d 851 (Pa. 2017). “Unfair prejudice supporting exclusion of relevant
evidence means a tendency to suggest decision on an improper basis or divert
the jury’s attention away from its duty of weighing the evidence impartially.”
Lageman by and through Lageman v. Zepp, 237 A.3d 1098, 1116
(Pa.Super. 2020) (citation omitted).
Here, the trial court aptly addressed this issue as follows:
In the instant case, before they rested, [a]ppellants’
counsel move to present a three (3) minute video of
“a series of photographs that are orchestrated or
choreographed to music along with texts and some
voice over top of it.” [Notes of testimony], 11/14/18
[at] 4[7]. Defense counsel objected, claiming that the
video was prejudicial and was being offered merely to
elicit sympathy from the jurors. Id. at 47-48. The
trial court agreed and found that “the risk of prejudice
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of overdoing the sympathy outweighed any probative
value of it” and granted defense counsel’s objection to
the showing of the tape. Id. at 49.
This [trial] court sees no abuse of discretion in the trial
court’s ruling. The proffered video evidence by
[a]ppellants was more prejudicial than probative in
this case. Appellants called two of [d]ecedents’
daughters, his son, and his grandson to testify at trial
about the [d]ecedent. The video, which was described
as an “in memoriam” video, was very likely to elicit
sympathy for the [d]ecedent and his family and was
inadmissible. Accordingly, because the probative
value of the video was outweighed by a danger of
unfair prejudice, it was properly excluded.
Trial court Rule 1925(a) opinion, 2/25/20 at 14.
Furthermore, appellants’ reliance on Quinby v. Plumsteadville Family
Practice, Inc., 907 A.2d 1061 (Pa. 2006), to support their claim that the
video was relevant to damages, is misplaced. In Quinby, our supreme court,
agreeing with this court, found that Quinby was entitled to JNOV on the issue
of liability for negligence in a survival action. The case was remanded for trial
on the issue of damages. Thus, our supreme court ruled that to the extent
the videotape evidence proffered by Quinby, and partially disallowed by the
trial court, was relevant to the issue of damages, the videotape evidence was
admissible. Instantly, however, the jury found for Dr. Trevlyn and, therefore,
the issue of damages is irrelevant.
As we agree with the well-reasoned analysis of the trial court on this
issue, we adopt its reasoning. Appellants’ contention that the trial court erred
in precluding the admission of the videotape of the decedent is without merit.
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In their final issue, appellants claim, “[a]s a matter of law and an abuse
of discretion, [that the] trial judge’s behavior, both on and off the record,
demonstrated prejudice to the [a]ppellants[, and c]onsequently,” a new trial
should have been granted. (Appellants’ brief at 30.) Appellants identify the
following examples: (1) “obnoxious [sidebar] comments by the trial court”;
(2) “unnecessary drama regarding a snow fall”; (3) “[a]t times it became
apparent that control of the courtroom was in the hands of the junior defense
attorney”; (4) the charge to the jury was confusing; and (5) the trial judge’s
alleged acute back pain caused him to constantly rise, stretch and walk around
while witnesses were testifying. (See appellants’ brief at 32-34.)
Here, appellants failed to raise objection to any of the alleged conduct
of the trial court during trial. See Pa.R.A.P. 302(a), supra. Nor have
appellants cited case law in support of their contentions. See In re Estate
of Whitley, 50 A.3d 203, 209-210 (Pa.Super. 2012) (noting that the
argument portion of the appellate brief must contain a discussion and citation
of pertinent authorities and failure to cite relevant legal authority constitutes
waiver of the claim on appeal), appeal denied, 69 A.3d 603 (Pa. 2013);
Pa.R.A.P. 2101, 2119(b). Thus, we agree with the trial court and find
appellants have waived their final issue. We, therefore, affirm the judgment
entered January 6, 2020.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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