Lageman, E. v. Zepp, J., IV, D.O.

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2020 PA Super 172ELIZABETH H. LAGEMAN, BY AND : IN THE SUPERIOR COURT OF
THROUGH HER POWER OF : PENNSYLVANIA
ATTORNEY AND DAUGHTER, :
ADRIENNE LAGEMAN :
:
Appellant :
:
:
v. : No. 756 MDA 2018
:
:
JOHN ZEPP, IV, D.O.; ANESTHESIA :
ASSOCIATES OF YORK, PA, INC.; :
YORK HOSPITAL; AND WELLSPAN :
HEALTH, T/D/B/A YORK HOSPITAL :
Appeal from the Judgment Entered May 10, 2018
In the Court of Common Pleas of York County Civil Division at No(s):
2014-SU-000846-82
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY BOWES, J.: FILED JULY 20, 2020
Elizabeth H. Lageman (“Mrs. Lageman”), by and through her daughter
and attorney-in-fact, Adrienne Lageman, appeals from the May 10, 2018
judgment in favor of John Zepp, IV, D.O. (“Defendant Zepp”), Anesthesia
Associates of York, Pa., Inc. (“Anesthesia Associates”), and York Hospital in
this medical malpractice case.1 After careful review, we vacate the judgment
and remand for a new trial.
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1The parties stipulated to the dismissal of all claims against WellSpan Health
without prejudice on October 21, 2014.
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The pertinent facts are as follows. Mrs. Lageman was hospitalized at
York Hospital on May 17, 2012, for a bowel obstruction. Two days later, she
underwent an emergency exploratory laparotomy and lysis of adhesions.
Defendant Zepp, a physician associated with defendant Anesthesia Associates,
was the anesthesiologist for the surgery. Defendant Zepp’s responsibilities
included the placement of a central line into Mrs. Lageman’s jugular vein to
facilitate the administration of intravenous fluids during the surgery.
Under the guidance of ultrasound, Defendant Zepp inserted a needle
into what he believed was the jugular vein. He then slipped a small catheter
over the needle. According to Defendant Zepp, he then used manometry to
confirm that the catheter was in the vein. In performing manometry, the
physician attaches a short piece of IV tubing to the small catheter and draws
blood into the tubing. Then the physician lifts up the tubing so that he can
observe the level to which the blood falls. When the catheter is properly
located in the vein, the blood is expected to fall to about three and one-half
inches above the site, matching the level of the pressure in the central venous
system. Defendant Zepp maintained that he used manometry to confirm
proper placement of the small catheter in the vein, and that the result was
consistent with pressure in the venous system. He then inserted the guide
wire, followed by the dilator, and a large bore catheter seven inches into the
vessel, and stitched it securely in place.
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Prior to administering any fluids, Defendant Zepp passed the ultrasound
transducer over the catheter. It revealed that the catheter was located in the
carotid artery rather than in the jugular vein, a complication known as arterial
cannulation. Defendant Zepp abandoned the jugular vein as a central line site
and called in a vascular surgeon for assistance. Although the bowel surgery
was successful, Mrs. Lageman sustained a stroke that left her paralyzed on
her left side, which is one of the recognized risks of arterial cannulation. N.T.
Jury Trial, 1/2-8/18, at 185-86; 313.
Adrienne Lageman (“Plaintiff”) filed a complaint in medical negligence
on her mother’s behalf in the Court of Common Pleas of York County against
the above-named defendants. Plaintiff alleged that Defendant Zepp deviated
from the standard of care in his performance of the central line procedure,
and that his negligent cannulation of Mrs. Lageman’s carotid artery caused
irreversible and permanent stroke injuries. Plaintiff asserted claims sounding
in vicarious liability and corporate negligence against York Hospital and the
Anesthesiology Associates. However, when trial commenced on January 2,
2018, only vicarious liability claims based on the negligence of Defendant Zepp
remained against the Hospital and Anesthesia Associates.
At trial, the following facts were undisputed. While Mrs. Lageman was
sedated, Defendant Zepp inserted the central line into Mrs. Lageman’s carotid
artery instead of her jugular vein. Mrs. Lageman’s carotid artery lay below
the jugular vein. This anatomical orientation was obvious on ultrasound, and
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while it made central line placement more difficult, “over fifty percent of
patients over age sixty have the same orientation” as Mrs. Lageman, and
Defendant Zepp was familiar with it. N.T. Jury Trial, 1/2-8/18, at 313.
Dynamic ultrasound, if used properly, permitted the anesthesiologist to see
the tip of the needle and increased the likelihood that it was in the vein rather
than the artery. It was agreed by the medical experts and Defendant Zepp,
that manometry, the technique whereby the pressure of the blood is measured
prior to threading the wire, dilating, and inserting the large-bore catheter, is
the “gold standard” for confirming that the small catheter is located in the vein
rather than the artery.
The experts agreed that it is rare that placement of a central line in the
jugular vein results in cannulation of the carotid artery, a statistic supported
by Defendant Zepp’s testimony that it had never occurred in the more than
500 procedures he had performed. Additionally, Defendant Zepp and his
expert, Dr. Hudson, as well as Plaintiff’s expert Dr. James M. Pepple, agreed
that inadvertent arterial cannulation increases the risk of stroke. Although
the defense did not concede that Mrs. Lageman’s stroke was caused by the
arterial cannulation, it did not introduce evidence of any other responsible
cause. According to Dr. Pepple, the neurologist’s notes ruled out other
medical explanations for Mrs. Lageman’s stroke.
In making out a prima facie case of negligence, Plaintiff pursued two
avenues. She offered the expert testimony of Dr. Pepple, rendered to a
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reasonable degree of medical certainty, that Defendant Zepp was negligent in
the manner in which he used short-axis view ultrasound as he could not
properly visualize the tip of the needle. Consequently, the expert opined,
Defendant Zepp was unaware that the needle had passed through the vein,
punctured and entered the underlying artery. Dr. Pepple also disputed that
Defendant Zepp employed manometry, pointing out that its use was not noted
on the anesthesia record. Dr. Pepple opined that cannulation of the artery
increased the risk of stroke “exponentially,” which was the very harm that
resulted. Thus, Plaintiff established a prima facie case of negligence: a duty
to use reasonable care, breach of that duty, and evidence that breach
increased the risk of harm actually suffered by Mrs. Lageman.
In addition to offering proof of specific negligence on the part of
Defendant Zepp, Plaintiff sought to avail herself of the inference afforded by
the evidentiary doctrine of res ipsa loqitur, meaning literally, “the thing speaks
for itself.” She introduced evidence calculated to establish the three elements
necessary to invoke the inference. First, she offered the expert testimony of
Dr. Pepple to the effect that, accepting Defendant Zepp’s version of how he
performed the procedure, this event, i.e. arterial cannulation, would not
ordinarily occur in the absence of negligence. She offered testimony from Dr.
Pepple and Defendant Zepp to rule out other responsible causes for such an
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event. Finally, it was undisputed that the alleged negligent central line
placement was within the scope of Defendant Zepp’s duty to Mrs. Lageman.2
Prior to submission of the case to the jury, Plaintiff presented a proposed
point for charge on res ipsa loquitur. The trial court refused to give a res ipsa
instruction, stating that this was not the type of case where it was obvious
that the doctrine applied. N.T. Jury Trial, 1/2-8/18, at 491. Thus, the jury
was not instructed that it was permitted to infer that the harm suffered by
Mrs. Lageman was caused by Defendant Zepp’s negligence.
After six days of trial, the jury returned a verdict in favor of Defendants,
specifically finding no negligence on the part of Defendant Zepp. Plaintiff filed
a motion for post-trial relief, which the trial court denied on April 12, 2018,
and this timely appeal followed. Both Plaintiff and the trial court complied
with Pa.R.A.P. 1925, and the matter is ripe for our review. Plaintiff presents
the following issues:
A. Whether the trial court committed an error of law when it failed
to give Plaintiff’s charge of Res Ipsa Loquitur during jury
instructions?
B. Whether the trial court committed an error of law when it
permitted the Defendants to perform a misleading
demonstration before the jury?
C. Whether the trial court committed an error of law when it failed
to correct or cure a misstatement in closing argument by
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2 We explore in detail infra the three elements that must be satisfied in order
to invoke the res ipsa loquitur inference, and the evidence introduced by the
Plaintiff to meet that threshold.
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Defense counsel which also violated a prior Order of the trial
court?
D. The Jury Verdict was against the evidence.
E. The Jury Verdict was against the weight of the evidence.
Appellant’s brief at 4.
In reviewing the trial court’s denial of post-trial relief, generally our
“scope of review is limited to determining whether the trial court committed a
clear abuse of discretion or error of law controlling the outcome of the case.”
Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995). Plaintiff alleges first that
the trial court erred in refusing to give an instruction on res ipsa loquitur to
the jury.
In examining jury instructions, our scope of review is limited
to determining whether the trial court committed a clear abuse of
discretion or error of law controlling the outcome of the case.
Error in a charge is sufficient ground for a new trial if the charge
as a whole is inadequate or not clear or has a tendency to mislead
or confuse rather than clarify a material issue. Error will be found
where the jury was probably misled by what the trial judge
charged or where there was an omission in the charge. A charge
will be found adequate unless the issues are not made clear to the
jury or the jury was palpably misled by what the trial judge said
or unless there is an omission in the charge which amounts to a
fundamental error. In reviewing a trial court’s charge to the jury,
we must look to the charge in its entirety. Because this is a
question of law, this Court’s review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014) (quoting Quinby
v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa.
2006)). A new trial will be required “if the charge as a whole is inadequate or
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not clear or as a tendency to mislead or confuse rather than clarify a material
issue.” Quinby, supra at 1069.
“Medical malpractice consists of a negligent or unskillful performance by
a physician of the duties which are devolved and incumbent upon him on
account of his relations with his patients, or of a want of proper care and skill
in the performance of a professional act.” Vazquez v. CHS Prof'l Practice,
P.C., 39 A.3d 395, 397-398 (Pa.Super. 2012) (quoting Quinby, supra at
1070-71 (internal citations omitted)). As in negligence cases generally, in
order to state a prima facie case, the plaintiff must demonstrate that the
physician owed a duty to the patient, that he breached that duty, that the
breach was the proximate cause of the harm suffered, and that damages
directly resulted. Id. (citing Hightower-Warren v. Silk, 698 A.2d 52, 54
(Pa. 1997)). In most malpractice cases, other than those where the
negligence is so obvious as to be within the common understanding of
laypersons, a plaintiff will need a medical expert who will provide testimony
meeting those elements. Id.Res ipsa loquitur is an evidentiary doctrine permitting the jury to infer
negligence and causation from the mere occurrence of the event and the
defendant’s relation to it. Our Supreme Court called it “a shorthand
expression for circumstantial proof of negligence -- a rule of evidence.”
Quinby, supra at 1071. The doctrine allows a plaintiff to “satisfy his burden
of producing evidence of a defendant’s negligence by proving that he has been
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injured by a casualty of a sort that normally would not have occurred in the
absence of the defendant’s negligence.” Id. The Court added, “[t]he
inference provides reasonable evidence, in the absence of an explanation by
the [d]efendants, that the accident arose from their negligence.” Id. at 1076.
The strength of the inference depends on the evidence presented, but ranges
“from reasonable probability to practical certainty.” Id. Where different
conclusions can be reached, it is the jury’s function to determine whether the
inference is to be drawn. Id.
The Restatement formulation of res ipsa loquitur was adopted by our
Supreme Court in Gilbert v. Korvette's Inc., 327 A.2d 94 (Pa. 1974), and
provides:
(1) It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in
the absence of negligence;
(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the
evidence; and
(c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the
inference may reasonably be drawn by the jury, or whether it
must necessarily be drawn.
(3) It is the function of the jury to determine whether the
inference is to be drawn in any case where different conclusions
may reasonably be reached.
Restatement (Second) of Torts § 328D (1964).
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Before a plaintiff can rely upon res ipsa loquitur, he must establish all
three elements of § 328D(1) by producing “evidence which will permit the
conclusion that it is more likely than not that her injuries were caused by the
defendant's negligence.” Id. at § 328A. At that juncture, the trial court may
look at all the evidence to determine if reasonable minds could reach different
conclusions regarding the negligence of the defendant. If so, it is for the jury
to determine whether to draw the inference. Our High Court also recognized
in Quinby, supra at 1076, that “where exceptional circumstances give rise to
an inference of negligence on the part of the defendant which is so strong that
it cannot be rejected by reasonable individuals if not rebutted,” the court may
direct a verdict in favor of plaintiff. “It is only when there is no issue of fact
as to the existence of any of the conditions necessary in order to apply res
ipsa loquitur that the court may withdraw the issue from the jury or direct the
jury to draw the inference of negligence.” Id. As a comment to the
Restatement explains:
The inference arising from a res ipsa loquitur case may . . . be
destroyed by sufficiently conclusive evidence that it is not in
reality a res ipsa loquitur case. If the defendant produces
evidence which is so conclusive as to leave no doubt that the event
was caused by some outside agency for which he was not
responsible, or that it was of a kind which commonly occurs
without negligence on the part of anyone and could not be avoided
by the exercise of all reasonable care, he may be entitled to a
directed verdict.
Restatement (Second) of Torts § 328D cmt. o (1964).
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Traditionally, res ipsa is associated with events that are within the
common knowledge of laypersons and requiring no expert testimony to
establish negligence and causation. Some examples of such events offered
by the commentators to the Restatement are the fall of an elevator, or the
escape of gas, water, or electricity from mains or wires, or train derailments.
From the nature of such events, “the conclusion is at least permissible that
such things do not usually happen unless someone has been negligent.”
Restatement (Second) of Torts § 328D cmt. c; see also Fessenden v.
Robert Packer Hosp., 97 A.3d 1225, 1227 (Pa.Super. 2014) (holding res
ipsa loquitur applicable where sponge left in abdomen following surgery
caused abdominal abscess and necessitated the removal of gallbladder and a
portion of small bowel).
In Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134 (Pa.
1981), our Supreme Court sanctioned the use of res ipsa in a complex medical
negligence case.3 The plaintiff in Jones sustained suprascapular nerve palsy
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3In considering whether it should permit section 328D res ipsa loquitur to be
employed in medical malpractice cases, the Jones Court noted one
commentator’s explanation for the reluctance to do so:
It was early thought that this doctrine could have no application
to medical science, because there are so many intangibles and
uncertainties involved that the occurrence of a bad result could
never justify an inference of negligence, and that all features of
medical treatment could be interpreted and judged by physicians
only. Gradually, however . . ., the courts in most states now
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during a gynecological procedure. The Court recognized there was no fund of
common knowledge from which laypersons could reasonably draw the
inference of negligence, but permitted the inference when plaintiff offered
uncontradicted expert medical testimony establishing that the condition did
not ordinarily occur in such circumstances. See Restatement (Second) of
Torts § 328D; see also Hightower-Warren, supra at 54 (plaintiff’s expert’s
testimony that injury to left recurrent laryngeal nerve was the kind of event
that does not occur in the absence of negligence under the operative
conditions as described by defendant doctor and, after ruling out all other
possible causes, opined to a reasonable degree of medical certainty that it
occurred during the procedure at the hands of defendant, established first and
second prongs of res ipsa). Where medical evidence established that the
event would not ordinarily occur without negligence, the Court found no basis
for refusing to permit a jury to draw such an inference.
Herein, as in Jones and Hightower, “there is no fund of common
knowledge from which laymen can reasonably draw the inference or
conclusion of negligence.” Jones, supra at 1139. The proper way to insert
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recognize that this doctrine does have its place in medical
malpractice . . . .
Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1137 (Pa. 1981),
quoting FALA, The Law of Medical Malpractice in Pennsylvania, 36 U. of Pitt. L.
Rev. 203, 219 (1974).
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a central line into a jugular vein, and the consequences of errant placement
in the artery are not within the common knowledge of laypersons. Thus, in
order to proceed on a res ipsa theory, Plaintiff was required to introduce expert
medical testimony that the event that occurred herein, arterial cannulation,
ordinarily would not have occurred absent negligence. In addition, she had to
rule out other responsible causes for the event in order to meet the
requirement of § 328D(1)(b). Finally, she had to establish that the negligence
occurred within the scope of Defendant Zepp’s duty to Mrs. Lageman.
Plaintiff contends that she met all three elements for application of the
doctrine of res ipsa. She offered Dr. Pepple as an expert in central line
placement, the use of ultrasound for central line placement, and anesthesia.
The procedure at issue involved placement of a central line in the internal
jugular vein in the right side of the neck. N.T. Jury Trial, 1/2-8/18, at 221.
The expert rendered an opinion, to a reasonable degree of medical certainty,
that Defendant Zepp’s cannulation of the artery, i.e., insertion of the large
bore catheter seven inches into the carotid artery instead of the jugular vein,
was negligent. Id. at 220. In his expert opinion, Defendant Zepp’s placement
of the catheter into the carotid artery was below the standard of care. Id. at
234. He opined further that it was impossible to perform the procedure as
Defendant Zepp maintained that he did, execute the procedure properly, and
still place the catheter seven inches into the artery. Id. at 225-26. Dr. Pepple
was asked,“[i]f the standard of care has been properly observed, that all the
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steps have not only been taken, but they were taken correctly and things were
seen and evaluated correctly, is it possible that this artery would have been
cannulated to that degree?” Id. at 238. He responded in the negative. Id.
Dr. Pepple also rejected the suggestion that the location of Mrs.
Lageman’s vein above the artery excused or explained the error. He testified
that with the proper use of ultrasound, Defendant Zepp would have been
aware of that fact. Id. at 239. Indeed, Dr. Pepple pointed to photographs in
the medical record that showed the vein above the artery. Id. Thus, Plaintiff
produced testimony that cannulation of the artery did not usually occur in the
absence of negligence when the procedure was performed with manometry,
as maintained by Defendant Zepp. Such testimony was sufficient to meet the
first element of res ipsa loquitur: that arterial cannulation as occurred herein
does not ordinarily happen in the absence of negligence.4
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4 Despite the foregoing expert testimony, the Dissent contends that Plaintiff
did not establish that arterial cannulation as occurred herein does not
ordinarily happen in the absence of negligence. It maintains that Dr. Pepple’s
testimony was not an unequivocal statement to that effect, but merely his
opinion that Dr. Zepp was negligent in inserting the central line. See
Dissenting Opinion, at 25-26. In our view, Dr. Pepple’s testimony that it is
impossible to place a catheter seven inches into the artery if one properly
executes the central line procedure as described by Dr. Zepp, is the
equivalent of testimony that what occurred here does not ordinarily happen in
the absence of negligence.
Our distinguished colleague faults us for rejecting contrary testimony from Dr.
Zepp and his expert, Dr. Hudson, in concluding that Plaintiff’s proof met the
first element of res ipsa. However, at this juncture of the analysis, we look at
the Plaintiff’s proof to determine whether she established the first element.
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As to the second element of res ipsa, eliminating other persons or causes
as responsible for the harm, Defendant Zepp stated that he personally placed
the central line. He added that “[t]he confirmatory steps that I took in placing
the central line are the same confirmatory steps that I take when I place every
central line.” Id. at 194-95. Defendant Zepp also ruled out the conduct of
others as responsible causes of the event. He testified that Mrs. Lageman did
not move, no one bumped the table, the equipment did not malfunction, the
ultrasound was working properly, and the kit containing the catheter, dilator,
and wire was not defective. He also downplayed the significance of Mrs.
Lageman’s anatomy, explaining that the location of the jugular vein over the
carotid artery was common in persons over age sixty, and that he had
considerable experience placing central lines in patients belonging to that age
group. Nevertheless, neither Defendant Zepp nor his expert, Dr. Hudson,
offered any explanation as to how, given this scenario, the large bore catheter
ended up in Mrs. Lageman’s carotid artery instead of her jugular vein.
Plaintiff also offered Dr. Pepple’s testimony regarding the likely
connection between Defendant Zepp’s arterial cannulation and Mrs.
Lageman’s stroke. The expert noted that Mrs. Lageman did not have atrial
fibrillation or any other pre-existing conditions that predisposed her to stroke,
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Furthermore, the fact that Dr. Pepple’s testimony was controverted does not
mean that the inference was negated or that the instruction was improper.
See infra at 23 (discussing effect of contrary evidence on the propriety of
giving a res ipsa instruction).
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and the MRI performed after the surgery did not disclose any alternative cause
of her stroke. Furthermore, Mrs. Lageman immediately sustained a stroke of
the middle cerebral artery, directly upstream from the site of the arterial
cannulation. Id. at 235. According to the expert, the neurologist had
eliminated other embolic causes of the stroke, including embolic phenomena
from the heart. Id. at 237. It was Dr. Pepple’s opinion, to a reasonable
degree of medical certainty, that the strokes were caused by the catheter
being inserted “eighteen centimeters into the arterial area.” Id. Finally, the
third element of res ipsa, that the indicated negligence was within the scope
of Defendant Zepp’s duty to the patient, was not disputed.
Having sustained her burden, Plaintiff contends that the court was
required to give a res ipsa instruction. See Quinby, supra at 1072 (“[W]hen
common knowledge or medical evidence can be established that the event
would not ordinarily occur without negligence, there is no basis for refusing to
draw an inference of negligence in accord with res ipsa loquitur.”). She alleges
further that the evidence to the contrary offered by Defendant Zepp did not
dissolve the inference. See Sedlitsky v. Pareso, 582 A.2d 1314, 1316
(Pa.Super. 1990) (providing that where the plaintiff sustains his or her burden,
the court must give the instruction on res ipsa loquitur, even if the defendant
has produced a quantity of contrary evidence).
Defendant Zepp contends, as the trial court concluded, that Plaintiff
failed to satisfy the first element of the Restatement for application of res ipsa.
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He argues that Dr. Pepple conceded that the injuries that occurred herein
could happen in the absence of negligence when he agreed with the
proposition that even if a physician follows all of the professional practice
guidelines, a favorable outcome is not guaranteed. Appellee’s brief at 11
(citing N.T. Jury Trial, 1/2-8/18, at 283). The defense also points to Dr.
Pepple’s testimony that Mrs. Lageman’s anatomy made the central line
placement more difficult as evidence explaining the outcome in the absence
of negligence.
We find no merit in either argument. Dr. Pepple did not concede that
this injury occurs in the absence of negligence. Rather, the expert was asked
whether the American Society of Anesthesiologists’ practice guidelines state
that they are not standards, and that following them does not guarantee any
outcome. N.T. Jury Trial, 1/2-8/18, at 282-83. He answered in the
affirmative, merely agreeing that the guidelines do state that. Id. This is
hardly a concession by Plaintiff’s expert that arterial cannulation occurs in the
absence of negligence. Furthermore, we note that even Defendant Zepp
dismissed the notion that the orientation of Mrs. Lageman’s vein over the
carotid artery was unusual or that it complicated the placement of the central
line. Defendant Zepp testified that, “over fifty percent of patients over the
age of sixty have the same orientation as Mrs. Lageman,” and that he was
quite familiar with it. Id. at 313. Dr. Pepple maintained that this anatomical
presentation “just requires vigilance.” Id. at 231.
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Defendant Zepp contends that Plaintiff also failed to satisfy the second
element for the application of res ipsa loquitur. He maintains that the harm
herein was the stroke, and that “placing a central venous line into an artery
in and of itself is not an injury.” Appellee’s brief at 13. He argues that Ms.
Lageman did not sufficiently eliminate other causes of her stroke or offer
competent evidence from a neurologist that her stroke was caused by the
central line placement. Id. According to the defense, Dr. Pepple’s testimony
interpreting the neurology notes in the record was “weak” and failed to rule
out other possible causes of stroke. Id. at 15.
Res ipsa loquitur obviates the need for direct evidence that defendant’s
conduct was the proximate cause of the plaintiff’s injury by allowing a plaintiff
to eliminate other responsible causes of the event. See Fessenden, supra
at 1231; see also Quinby, supra at 1072-73. The critical inquiry as to the
second element of res ipsa is whether a particular defendant is the responsible
cause of the event. Defendant Zepp admitted that he alone was responsible
for placing the large bore catheter in Mrs. Lageman’s carotid artery rather
than her jugular vein.
Dr. Pepple explained the connection between arterial cannulation and
stroke as follows. When a catheter is mistakenly placed in an artery, clots
form on the catheter itself, break off, and become emboli. N.T. Jury Trial,
1/2-8/18, at 223. He further explained that emboli in the carotid artery
particularly, which feeds the brain, can result in a stroke and hemiplegia. Id.
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Based upon his education, knowledge, experience, and review of the
neurology records, Dr. Pepple also opined that causes other than the arterial
cannulation were effectively ruled out as the cause of Mrs. Lageman’s stroke.5
We see no indication that Defendant Zepp challenged Dr. Pepple’s competency
to render such an opinion in the court below. Furthermore, he was not
required to be a neurologist to offer causation testimony. See 40 P.S. §
1303.512.
Finally, Defendant Zepp distinguishes the facts herein from those in
Quinby and Jones, on the basis that neither involved complex factual
disputes as to the cause of the injury. Id. at 15. He analogizes the situation
herein to that in Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality),
where the Supreme Court found res ipsa inapplicable to a paravertebral nerve
block injection that allegedly punctured the plaintiff’s lung. He also directs
our attention to Starr v. Allegheny Gen. Hosp., 451 A.2d 499 (Pa.Super
1982), where this Court affirmed the trial court’s refusal to permit the plaintiff
to use res ipsa to establish a prima facie medical malpractice case for
neurological problems allegedly caused by the negligent repair of a skull
fracture.
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5 Dr. Hudson and Defendant Zepp both conceded that arterial cannulation
increased the risk of stroke. Moreover, the defense did not offer any expert
testimony positing an alternative theory for Mrs. Lageman’s stroke.
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The holding in Toogood is readily distinguishable. Conspicuously
absent therein was expert medical testimony explaining the complicated
medical procedure and opining that the injury did not ordinarily occur in the
absence of negligence. In contrast, Plaintiff herein offered the requisite expert
medical testimony linking the negligent arterial cannulation to stroke.6
Starr involved claims of negligent post-operative treatment following
surgery to repair a depressed skull fracture, which the plaintiff claimed
resulted in slurred speech, blurred vision, and neurological injuries. This Court
concluded, after a thorough review of the record, that there was insufficient
evidence eliminating “other responsible causes” besides the alleged
negligence of the appellees, and that the injuries were not the type that would
not have ordinarily occurred but for the negligence of the appellees. In the
instant case, Dr. Pepple testified unequivocally herein that, to a reasonable
degree of medical certainty, arterial cannulation would not have occurred in
the absence of negligence in the performance of the central line placement.
He also rendered the opinions that arterial cannulation “exponentially”
increases the risk of stroke, and further, that there were no other causes for
the stroke identified by the neurologist. N.T. Jury Trial, 1/2-8/18, at 232.
Thus, Starr is inapposite.
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6 Toogood was a plurality opinion, and the Quinby Court expressly declined
to be bound by its reasoning.
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Notably, in denying the requested res ipsa charge, the trial court did not
cite any perceived deficiency in the connection between arterial cannulation
and stroke. When Plaintiff renewed her request for the charge, the trial court
maintained that it was not “obvious” that the mistake at issue could not occur
in the absence of negligence.7 N.T. Jury Trial, 1/2-8/18, at 562. In its
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7 The proposed point for charge on res ipsa loquitur consisted of the following:
You, as the jury, may infer negligence from the
circumstances surrounding the injury. The Plaintiff, Mrs.
Lageman, may satisfy her burden of proof by producing evidence
of the Defendant’s negligence by proving that she has been
injured by a cause of a sort that normally would not have occurred
in the absence of negligence of the Defendant. The requirements
of allowing you to infer negligence from the circumstantial
evidence as well as from the direct testimony of the expert witness
for the Plaintiff are these:
1. That the event is of a kind which ordinarily does not occur in
the absence of negligence.
2. Other responsible causes including the conduct of the Plaintiff
and third-party are sufficiently eliminated by the evidence.
3. The indicated negligence is within the Defendant’s duty to the
plaintiff.
In addition to relying upon the Plaintiff’s expert testimony,
if you chose to do so, you may also draw an inference of
negligence from the circumstances as I have set them forth above.
That is that the event usually does not occur in the absence of
negligence that the conduct of the Plaintiff and other third persons
are sufficiently eliminated by the evidence and the negligence is
within the scope of the Defendant’s duty to the Plaintiff. It is clear
from the evidence that the third requirement is not disputed as
Dr. Zepp had a duty to the Plaintiff.
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subsequent Rule 1925(a) opinion, the court stated, “we stand by our original
ruling that the particular facts of this case would not present the type of event
that is so obvious that a mistake can occur but for negligence happening.”
Trial Court Opinion, 8/2/18, at 18 (citing N.T., 1/8/18, at 562) (emphasis
added). In other words, the trial court did not see this case as a true res ipsa
case. It described the evidence as “inconclusive as to whether the use of
ultrasound does or does not totally eliminate the risk that a doctor would still
puncture or cannulate the artery rather than a vein.” Id. at 18. It pointed to
the fact that Mrs. Lageman’s anatomy made the procedure more difficult, and
concluded that “the evidence did not establish that more likely than not that
Plaintiff’s injuries were caused by Defendant Zepp’s negligence.” Id. at 19.
Since “the experts shared different views,” the trial court found “the
possibilities were evenly divided between negligence and its absence.” Id.
Hence, the court concluded that “Plaintiff was not entitled to a permissible
conclusion that arterial cannulation does not ordinarily happen unless
someone is negligent.” Id. at 19.
We disagree. Even the trial court conceded that the expert testimony
of Dr. Pepple “essentially stated that cannulation of the artery cannot occur
unless someone is negligent.” Trial Court Opinion, 8/2/18, at 31 (quoting N.T.
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Quimby v. Plumsteadville Family Practice Inc., 589 Pa. 183,
907 A.2d 1061 (2006). Restatement (Second) of Torts, § 328D.
Plaintiff’s Supplemental Requested Point for Charge, 1/8/18, at 2.
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Jury Trial, 1/2-8/18, at 225-26). As the court noted, Plaintiff’s counsel elicited
that opinion in several ways:
Plaintiff’s Counsel: Let me put it this way: If the standard of care
has been properly observed, that all the steps have not only
been taken, but they were taken correctly and things were
seen and evaluated correctly, is it possible that this artery
would have been cannulated to that degree?
Dr. Pepple: No.
N.T. Jury Trial, 1/2-8/18, at 238. One moment later, Dr. Pepple confirmed
that if a physician’s conduct is within the standard of care, cannulation of the
artery “should not occur.” Id. at 239. Thus, Plaintiff offered unequivocal
expert testimony that, in the absence of negligence, arterial cannulation
ordinarily does not occur.
In our view, expert testimony rendered to a reasonable degree of
medical certainty that arterial cannulation does not ordinarily occur under the
operative conditions described by Defendant Zepp in the absence of
negligence is more than sufficient to “permit the conclusion that it is more
likely than not that [plaintiff’s] injuries were caused by the defendant’s
negligence.” See Restatement (Second) of Torts § 328D cmt. e (1964). Dr.
Pepple did not equivocate. In concluding that Plaintiff failed to offer evidence
that it was more probable than not that negligence caused the event, and that
she was “not entitled to a permissible conclusion that arterial cannulation does
not ordinarily happen unless someone is negligent[,]” the court improperly
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weighed the evidence offered by the defense that Defendant Zepp’s conduct
met the standard of care and that ultrasound is not infallible. Id. at 19.
As the Restatement explains, “[a] res ipsa charge cannot be dependent
on the weight a judge might give to the testimony offered in support of an
inference of negligence.” Restatement (Second) of Torts § 328D(2) (1964).
See also Sedlitsky, supra at 1316 (“Where the plaintiff sustains his or her
burden, the court must give an instruction on res ipsa loquitur, even if the
defendant has produced a quantity of contrary evidence.”). Rather, “it is the
jury's function to determine whether the inference is to be drawn in any case
where different conclusions might reasonably be reached.” Id. at § 328D(3).
“If reasonable persons may reach different conclusion[s] regarding the
negligence of the defendant, then it is for the jury to determine if the inference
of negligence should be drawn. MacNutt v. Temple University Hospital,
932 A.2d 980, 987 (Pa.Super. 2007).
Furthermore, where, as here, “the defendant testifies that he has
exercised all reasonable care,” the Restatement commentators recognize that
“the conclusion may still be drawn, on the basis of ordinary human experience,
that he has not.” Restatement (Second) of Torts § 328 D, cmt. n. (1964)
(acknowledging that although the defense offers evidence that there was no
negligence in inspecting elevator, the fact remains that the elevator fell).
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The defense expert, Dr. Hudson, did not render an opinion that arterial
cannulation could have occurred herein without any negligence.8 Thus, he did
not directly rebut Dr. Pepple’s expert testimony to that effect. Instead, Dr.
Hudson opined, based upon Defendant Zepp’s account, that the procedure
was performed in an appropriate fashion and sequence. His opinion that the
“use of ultrasound does not eliminate the risk of arterial cannulation,” N.T.
Jury Trial, 1/2-8/18, at 504, sidestepped the real question: whether the
proper use of ultrasound and manometry, the gold standard for confirming
placement of the wire in the vein, before dilating the vessel and inserting the
large bore catheter, virtually eliminates the risk of arterial cannulation. The
defense offered no explanation why ultrasound and manometry, properly
interpreted, did not disclose to Defendant Zepp that the small catheter was in
the artery rather than the vein before he threaded the wire, dilated the vessel,
and inserted the large bore catheter seven inches into the artery.
We find that Plaintiff offered evidence satisfying all three elements for
the application of the doctrine of res ipsa loquitur. At that juncture, the court
was charged with determining whether reasonable minds could differ.
Critically, Defendant Zepp did not offer any non-negligent explanation for the
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8 Dr. Hudson was precluded from offering any opinion that arterial
cannulations occur under similar circumstances in the absence of negligence
because such an opinion was outside the scope of his expert report. However,
Defendant Zepp offered lay opinion testimony, without objection, “that even
in the absence of negligence, we can still have these arterial cannulations.”
N.T. Jury Trial, 1/2-8/18, at 314.
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arterial cannulation, nor evidence that some other cause was at least equally
likely the cause of Mrs. Lageman’s injury that would dissolve the inference.
Cf. MacNutt, supra (holding no inference permitted as it was disputed “with
equal fairness” whether plaintiff’s injury was a negligent Betadine burn or a
non-negligent herpes zoster outbreak).
Nor is reliance upon res ipsa foreclosed because Plaintiff’s medical
expert also offered evidence of specific negligence. In Hollywood Shop, Inc.
v. Pa. Gas & Water Co., 411 A.2d 509, 512 (Pa.Super. 1979), we were
persuaded by the Third Circuit’s reasoning in Weigand v. Pennsylvania
Railroad Company, 267 F.2d 281 (3rd Cir. 1959) (applying Pennsylvania
law), that the trial judge erred in refusing to give a res ipsa loquitur instruction
on such facts. In Weigand, the plaintiff was walking between two railroad
tracks when the ground gave way and he fell into a hole five feet deep. In
addition to proceeding on a res ipsa theory, the plaintiff offered an engineer
who testified regarding the drainage conditions and supplied an explanation
for the accident. The court recognized that this was a res ipsa case, “but one
capable of some specific proof regarding the railroad’s negligence.” Id. at
284. It found it “illogical” and “unfair” to force the plaintiff to abandon one of
his theories, the same rationale we subsequently adopted in Hollywood
Shop, in holding that the plaintiff was entitled to a res ipsa charge.
In D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318(Pa.Super. 1998), we noted that there are cases where the evidence “‘falls
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within the grey zone,’ a factual realm in which a plaintiff presents ‘as specific
a case of negligence as possible, yet is unable to demonstrate the exact cause
of the accident.’” Id. at 324 (internal citations omitted, emphasis in original).
We reasoned, “where the plaintiff’s specific evidence of negligence is directly
disputed by the defendant, ‘it may be especially important that the plaintiff
get a res ipsa loquitur charge if he is otherwise entitled to it.’” Id. (citing 33
A.L.R.2d 791, 793 (“An unsuccessful attempt to prove specific negligence on
the defendant’s part, or the introduction of evidence of specific negligence not
clearly establishing the precise cause of injury, will not deprive the plaintiff of
the benefits otherwise available under the [res ipsa] doctrine.”)).
Recently, in Quinby, our Supreme Court implicitly sanctioned the
plaintiff’s introduction of evidence of specific negligence and concomitant
reliance on the inference of negligence under res ipsa. The decedent, a
quadriplegic, was placed on an examination table to permit a physician to
remove a facial lesion. It was undisputed that, after the surgery was
completed, the decedent, who was left unrestrained and unattended on the
examination table, fell to the floor. According to decedent, defendants left
him on his right side; according to defendants, decedent was left on his back
in the center of the table.
The plaintiff offered expert medical testimony, i.e., direct evidence that
defendants had not complied with the standard of care, which required that
decedent be safely secured on the examination table with side rails or straps,
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or that someone stay with him at all times. The expert also opined that the
defendants failed to provide a safe environment for the decedent while he was
in the office. In addition to the foregoing direct evidence of negligence, the
physician stated that, “absent extrinsic forces not present” therein, he could
not envision how a quadriplegic could fall from such a table “without there
being a breach of the requisite standard of care.” Quinby, supra at 1067.
The trial court concluded that the expert’s testimony established a prima
facie case of negligence for submission to the jury. However, it refused the
plaintiff’s request to charge the jury on res ipsa loquitur. Our Supreme Court
held this was error. It reasoned that defendants had a duty to place decedent
on the table in a manner that would insure that he did not fall, and found that
there were no facts indicating that the decedent’s fall resulted from anything
other than defendants’ negligence. The Court concluded that the evidence
satisfied the first element of §328D because, “[s]imply put, in the absence of
negligence, a quadriplegic patient such as Decedent could not fall off an
examination table.” Id. at 202. Hence, although there was sufficient direct
evidence of negligence from plaintiff’s expert to make out a prima facie case,
our Supreme Court held that the trial court erred in also refusing to charge on
res ipsa where all three elements had been met.9
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9The Dissent suggests that our decision in MacNutt v. Temple University
Hospital, Inc., 932 A.2d 980 (Pa.Super. 2007) (en banc), stands for the
proposition that where there is adequate evidence of negligence to support a
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Herein, as in Quinby, Plaintiff offered Dr. Pepple’s expert testimony that
Dr. Zepp’s conduct deviated from the standard of care in certain particulars,
all of which were factually disputed by Dr. Zepp. The expert also opined that
what occurred here, i.e., insertion of the catheter seven inches into the artery
instead of the vein, is not something that occurs in the absence of
negligence.10 Defendant Zepp maintained that incorrectly placing the catheter
into the artery is not the same as being negligent, although he offered no
explanation as to how it occurred. Since Plaintiff established all three
elements of res ipsa loquitur, we find that the trial court abused its discretion
in refusing to instruct the jury on res ipsa, and a new trial is warranted.
Although the foregoing issue is dispositive of this appeal, we address
another issue that may recur on retrial: the propriety of permitting Defendant
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cause of evidence for negligence, a plaintiff is precluded from proceeding on
a theory of res ipsa. While that was indeed the trial court’s rationale in
refusing to instruct the jury on res ipsa, we affirmed on a different basis: that
the plaintiff failed to satisfy the three elements for the application of res ipsa
and that “it was not in reality a res ipsa loquitur case.” Id. at 991-92.
Notably, in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061(Pa. 2006), despite the fact that direct evidence of negligence was introduced,
our Supreme Court held that the trial court erred in refusing to charge the
jury pursuant to res ipsa where all three elements were established. Our
distinguished colleague’s fear that the charge will be given in every
malpractice case if we allow a plaintiff to seek a res ipsa instruction even when
he has introduced direct evidence of negligence fails to appreciate how difficult
it is to establish all three elements of the doctrine.
10 Dr. Pepple emphasized that this was not merely a posterior wall puncture
of the jugular vein and inadvertent entry into the artery. Dr. Zepp inserted
the catheter seven inches into the artery while supposedly using manometry,
the gold standard for ensuring that the catheter is properly in the vein.
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Zepp to conduct either a live or videotaped demonstration of proper central
line placement for the jury.
The defense proposed to play for the jury a videotaped demonstration
filmed the night before of Defendant Zepp performing a central line placement
on a mannequin. The avowed purpose in demonstrating the procedure was
to educate the jury. Plaintiff objected that the video had not been timely
identified as a trial exhibit, it did not accurately depict the procedure
performed on Mrs. Lageman, it was misleading and prejudicial, and, it created
a “halo effect” around the defendant physician that was more prejudicial than
probative. N.T. Jury Trial, 1/2-8/18, at 115. The trial court, upon being
apprised that the video contained commentary, excluded the video on two
grounds: 1) it had not been timely identified, and 2) the commentary was
hearsay. Id. at 118.
Undaunted, the defense proposed that Defendant Zepp be permitted to
conduct a live demonstration of the procedure on a mannequin in the
courtroom. Plaintiff renewed her earlier objections. The trial court overruled
the objections, finding the demonstration relevant to help the jury understand
the procedure. Later, in support of its ruling at trial, the trial court observed
that it was “clear to the jury that this demonstration was not illustrative of the
circumstances in Plaintiff’s case.” Trial Court Opinion, 8/2/18, at 21.
Furthermore, the court maintained that the demonstration clearly showed how
the initial position of the needle was “plainly visible” with the use of
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ultrasound, and suggested that this worked to Mrs. Lageman’s benefit, rather
than her detriment. Id. at 22.
The law is well settled that the admission of evidence rests within the
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of the law. Cimino v. Valley Family Medicine,
912 A.2d 851, 853 (Pa.Super. 2006). Moreover, in order for an evidentiary
ruling to constitute reversible error, it must have been harmful or prejudicial
to the complaining party. Phillips v. Lock, 86 A.3d 906, 920 (Pa.Super.
2014).
The trial court permitted Defendant Zepp to stand before the jury and
demonstrate on a mannequin the performance of a central line placement. He
narrated each step of the process, explained why he was doing it, and pointed
out significant details germane to the case as he went along. The mannequin
was obviously not the same as Mrs. Lageman. Accordingly, Defendant Zepp
told the jury that he could not perform all steps of the procedure on the
mannequin, and, at some point, he would stop and talk them through the
remainder of the process. Id. at 297.
Defendant Zepp demonstrated short-axis view ultrasound, and pointed
out the artery and the vein. He highlighted marks on the ultrasound screen
showing the depths. He showed how, as he approached the vein, the tissues
started to move. When the needle entered the vein, and as he drew back on
the syringe, he showed the jury that blue blood was visible, “venous blood for
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the mannequin’s purposes.” Id. at 299. He pointed out to the jury the tip of
the needle, which looked like a bright white dot in the middle of dark fluid.
Id. at 299-300. He demonstrated the use of pressure manometry to confirm
the placement of the small catheter before threading the wire in the vein.
Defendant Zepp stopped before inserting the dilator, as it was not a good idea
to place a dilator in a mannequin. After explaining how he would thread the
wire, place the large catheter in the vein, and sew up the site, he told the
jury: “It’s at that point I took one of these ports, and I hooked it up to the
waveform measure, the transducer, and it transduced arterial rather than
venous, and that gave me my confirmation.” Id. at 302. He then related to
the jury that he contacted the general surgeon on call, and asked the nurse
to summon the vascular surgeon, obviously referencing what occurred with
Mrs. Lageman specifically. Hence, what was presented to the jury as a generic
demonstration of a central line procedure was apparently a reenactment of
the procedure Defendant Zepp maintained that he actually performed on Mrs.
Lageman.
We agree that, in some circumstances, demonstrative evidence
depicting a medical procedure may be helpful to the jury. Such evidence may
take the form of a video depicting a similar procedure, or, as here, a video or
live demonstration using a mannequin, assuming that it can adequately
illustrate the procedure at issue. However, in either case, such
demonstrations are usually undertaken by experts. We could find no
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Pennsylvania cases discussing the propriety of permitting a defendant
physician to conduct such a demonstration. Furthermore, in this case,
Defendant Zepp was designated as a fact witness only.
Our research revealed a New York appellate decision in Glusaskas v.
Hutchinson, 544 N.Y.S. 2d 323 (1st Dept. 1989), in which the issue was the
propriety of the admission of a videotape prepared for trial by the defendant
physician of his performance of a similar surgery on another patient three
weeks before the start of trial. As herein, the film was offered ostensibly to
acquaint the jury with the surgical procedure at issue. Despite the plaintiff’s
objection that the videotape was inflammatory and prejudicial, the court ruled
that it was relevant for the purpose articulated, and not prejudicial.
On appeal, the court took a different view of the evidence. It noted that
the videotape suggested that because the defendant had successfully
operated on another patient, he had used the same amount of care in
performing the decedent’s surgery. Under New York law, “evidence of a
person’s habitual conduct under similar circumstances in respect to using care
is inadmissible for the purpose of raising an inference that he exercised the
same amount of caution on the occasion when the injury in question was
sustained.” Id. at 325. Furthermore, the court pointed out that the
circumstances depicted on the video and those involving the decedent were
not alike. Moreover, the videotaped procedure was undertaken more slowly
and deliberately. The court described the impact of the video, enhanced by
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the defendant’s commentary, as “devastating.” The court concluded that
“[t]he implication is clear that [defendant doctor], the meticulous and
experienced doctor that he is, having just demonstrated to the jury the
enormous care which he generally takes in operating on his patients, was not
apt to have been negligent in [decedent’s] case.” Id. at 326.
The court ruled that the video was inadmissible character evidence
suggesting that the defendant physician used the same care on the occasion
in question. The New York court added that the use of an instructional film in
a medical malpractice case might be justified in some circumstances, such as
where an expert is demonstrating a particular procedure. However, the
videotape was a “self-serving device prepared by a defendant” to disprove his
negligence, and did not constitute relevant evidence of anything. Id. at 326-
27. Citing the significant potential for prejudice, the court held it was
reversible error to admit it, and ordered a new trial.
We find Defendant Zepp’s in-court demonstration of the placement of
central line to be an abuse of discretion for many of the same reasons. The
setting displayed Defendant Zepp’s care and skill in performing a difficult
procedure. As in Glusaskas, the demonstration suggested that Defendant
Zepp used the same amount of care in performing Mrs. Lageman’s central line
placement as he used on the mannequin. It imbued Defendant Zepp with the
aura of an expert expounding on the proper way to place a central line, and
created the impression that he was incapable of negligence. It also allowed
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him to simulate ultrasound and manometry results consistent with his version
of the events. His commentary permitted him to segue seamlessly from what
typically happens into what he alleged happened herein.
We agree with Mrs. Lageman that the demonstration by Defendant Zepp
was misleading, confusing, and that it was unfairly prejudicial to her. “‘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.” Parr v. Ford Motor Co., 109
A.3d 682, 696 (Pa.Super. 2014) (quoting Commonwealth v. Wright, 961
A.2d 119, 151 (Pa. 2008)). Since the defendant physician was portrayed as
both an expert and one intimately familiar with the facts, his credibility was
bolstered in the eyes of the jury. Plaintiff styled it a “halo effect,” and we find
the term apt. The demonstration had some probative value but a considerably
higher potential for prejudice.
The trial court brushed off notions of prejudice by insisting that the jury
was aware that “the demonstration was not illustrative of the circumstances
in Plaintiff’s case.” See Trial Court Opinion, 8/2/18, at 21. We disagree.
Defendant Zepp blurred that distinction when he began to discuss the specific
circumstances at issue in the case. The demonstration implied that Defendant
Zepp performed the procedure with the same care and skill on Mrs. Lageman
as he displayed on the mannequin. Furthermore, it suggested that despite
the exercise of due care, the catheter “transduced arterial rather than venous”
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in the end, creating the impression that such events occur in the absence of
negligence.
Moreover, we do not agree with the trial court that Defendant Zepp’s
emphasis on the fact that the tip of the needle was plainly visible with
ultrasound alleviated any prejudice to Plaintiff. Defendant Zepp drew the
jury’s attention to what he represented was the tip of the needle, and
explained how it was specially machined to be visible under ultrasound. Such
testimony specifically refuted Dr. Pepple’s testimony that Defendant Zepp was
negligent in his use of short-axis view ultrasound as he could not see the tip
of the needle; it undermined the notion that he could have placed the tip of
the needle in the artery rather than the vein.
In short, the fact that the demonstration was conducted by Defendant
Zepp rather than an expert witness was improper, unfairly prejudicial, and
cannot be deemed harmless.
Judgment vacated. Case remanded for new trial. Jurisdiction
relinquished.
Judge Olson joins the opinion.
Judge Stabile files a dissenting opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2020
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