Scrivener, T. v. Rees, R., M.D.

J-S29018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
TANYA ANN SCRIVENER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RUSSELL REES, M.D., ROBERT :
PACKER HOSPITAL AND GUTHRIE :
MEDICAL GROUP, PC :
:
Appellees : No. 266 MDA 2023
Appeal from the Order Entered January 20, 2023
In the Court of Common Pleas of Bradford County
Civil Division at No(s): 2017MM0001
BEFORE: MURRAY, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: DECEMBER 13, 2023
Appellant, Tanya Ann Scrivener, appeals from the order entered in the
Bradford County Court of Common Pleas, which granted summary judgment
in favor of Appellees, Russell Rees, M.D., Robert Packer Hospital and Guthrie
Medical Group, PC. We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
[Appellant], through counsel, filed a complaint in medical
negligence and respondeat superior against [Appellees] on
March 30, 2017. The complaint alleges that Dr. Russell Rees
negligently caused injuries to [Appellant’s] bladder, ureters
and supporting structures during a hysterectomy performed
by him that resulted in [Appellant] having to undergo
multiple corrective surgeries and to suffer unresolved
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S29018-23
injuries, pain, and loss of function. The complaint attached
a Certificate of Merit signed by [Appellant’s] counsel
certifying that an appropriate licensed professional has
supplied a written statement … that there is a basis to
conclude that the care, skill or knowledge exercised or
exhibited by [Appellees] … fell outside acceptable
professional standards, and that such conduct was a cause
in bringing about the harm.
* * *
On May 6, 2019, approximately two (2) years after the
complaint was filed, [Appellant] filed a praecipe for a pretrial
conference. In response, [the court] scheduled a status
conference for August 14, 2019, to discuss the status of the
case and the scheduling of deadlines … to move the matter
forward. At [Appellees’] request, the status conference was
continued, without objection, to September 11, 2019.
At the status conference, the parties agreed to the following
deadlines: (i) Discovery: March 13, 2020; (ii) [Appellant’s]
expert report: May 15, 2020, with [Appellees’] and
[Appellant’s] supplemental report, if any, to follow on
specified dates; (iii) Dispositive Motion: September 4, 2020.
The parties agreed to promptly schedule and take the
depositions of [Appellant] and Dr. Rees first, followed by
approximately four to six depositions.
After receiving a letter from counsel dated February 19,
2020, advising that the parties were seeking a joint
continuance of the case management deadlines, [the court]
eventually issued an order acknowledging receipt of the
letter, but because no motion, no proposed order, and no
proposed new dates had yet been filed or received, [the
court] directed [Appellant] to file, within sixty (60) days, a
motion and proposed order with new dates and deadlines.
[Appellant] did not file the motion as directed.
Two (2) years later, on March 8, 2022, due to (i)
[Appellant’s] failure to file a motion to extend the case
management deadlines, (ii) [Appellant’s] alleged failure to
produce her expert report by the May 15, 2020, deadline,
(iii) [Appellant’s] alleged failure to identify her expert, and
(iv) [Appellant’s] counsel’s alleged failure to respond to
-2-
J-S29018-23
communications from [Appellees’] counsel as to whether
[Appellant] intended to proceed with the case, [Appellees]
filed a Motion for Sanctions seeking to preclude [Appellant]
from presenting any evidence or testifying at trial, including
expert witness testimony.
On April 21, 2022, [Appellant] filed a response to
[Appellees’] Motion for Sanctions that admitted, among
other things, the above-mentioned allegations. [Appellant]
also filed an Attorney Affirmation that attached emails from
April to June of 2021, supporting [Appellant’s] position that
counsel had been communicating with each other in good
faith and were in general agreement to move back the
discovery deadline to September 30, 2021, and adjust the
other deadlines accordingly. The Attorney Affirmation
further provided explanations and excuses for [Appellant’s]
failure to conduct the deposition of Dr. Rees, [Appellant’s]
failure to produce an expert report, [Appellant’s] failure to
file a motion to extend the deadlines, and [Appellant’s]
failure to comply with all of the case management deadlines.
These explanations and excuses included (i) the onset of
Covid, (ii) the change of [Appellees’] attorneys, (iii) the
departure of [Appellant’s] attorney from his prior firm in
order to start his own firm, (iv) the misunderstanding of
[Appellant’s] counsel as to his obligation to formally file a
motion to extend the case management deadlines, and (v)
the disorganization and understaffing of [Appellant’s]
counsel’s new law firm combined with a full caseload that
resulted in a crushing workload. [Appellant’s] counsel also
asserted that there was no prejudice to [Appellees] due to
the delay, and that this case is not far off from being trial
ready given that the only tasks left to complete are the
deposition of Dr. Rees and the exchange of expert reports,
… tasks [that] can comfortably be completed within 90 days.
One week later, by Order dated April 28, 2022, [the court]
denied [Appellees’] Motion for Sanctions, without prejudice
to [Appellees’] right to renew said Motion if [Appellant] does
not diligently move this litigation forward, and scheduled the
matter for a status conference on May 26, 2022. The Order
indicated that at the status conference [the court] wanted
to be advised as to recent progress as to the exchange of
expert reports and the deposition of Dr. Rees, both of which
tasks [Appellant’s] counsel states can be completed within
-3-
J-S29018-23
90 days. [The court] also advised that [it] expected to
implement a new scheduling order.
On the same day that [the court] denied the Motion for
Sanctions, [Appellant] filed a Motion to Extend Discovery
Deadlines, suggesting the following new deadlines:
a. 60 days to complete discovery (by 6/30/2022)
b. 90 days to complete the exchange of
[Appellant’s] expert reports (7/30/2022)
c. 120 day[s] for the defense t[o] complete
the [exchange] of their expert reports
(8/30/2022)
d. Dispositive briefs and motions by 9/30/2022
e. A pre-trial conference will be scheduled after the
resolution of all dispositive motions
Neither [Appellant] nor her counsel appeared at the status
conference on May 26, 2022. [Appellees’] counsel did
participate. Notwithstanding [Appellant’s] absence, on the
record before [the court], [it] granted [Appellant’s] Motion
to Extend Discovery Deadlines and adopted the new case
management dates proposed by [Appellant] in her motion.
The next action of record in this case occurred more than
four (4) months later when, on September 29, 2022, one
day before the dispositive motion deadline, [Appellees] filed
[a] Motion for Summary Judgment and Memorandum of Law
in Support thereof. By Order dated October 12, 2022, [the
court] scheduled the motion for argument on December 2,
2022. [Appellant] filed a Response, Attorney Affirmation,
and Motion to Extend Discovery Deadlines on November 2,
2022. The Response again admitted [Appellant’s] failures
and the Attorney Affirmation offered a new explanation for
the recent failures, specifically an emergent heart issue of
counsel’s father that required two (2) surgeries and
hospitalization, that finally stabilized at the end of June. As
in April, counsel again asserted this case is not far off from
being trial ready, with the only tasks left to complete being
the deposition of Dr. Rees and the exchange of expert
reports. Although the Attorney Affirmation mistakenly
utilized the same April 18, 2022, date as the earlier Attorney
Affirmation, and mistakenly requested in the prayer for
relief that [Appellees’] Motion for Sanctions be denied,
-4-
J-S29018-23
[Appellant’s] filing was clearly offered in response to
[Appellees’] Motion for Summary Judgment, as [the court]
had already denied [Appellees’] Motion for Sanctions six (6)
months earlier. By Order dated November 7, 2022, [the
court] scheduled [Appellant’s] Motion to Extend Discovery
Deadlines for argument on the same date and at the same
time as argument on [Appellees’] Motion for Summary
Judgment.
(Order and Opinion, filed 1/20/23, at 1-4) (internal citations and quotation
marks omitted).
By opinion and order entered January 20, 2023, the court granted
summary judgment in favor of Appellees and denied Appellant’s motion to
extend discovery deadlines as moot. In its opinion, the court emphasized that
Appellant’s failure to provide an expert report opining on Appellees’ deviation
from the standard of care amounted to “a substantive deficiency of proof in
[Appellant’s] cause of action,” which warranted the entry of summary
judgment in favor of Appellees. (Id. at 7) (citing Grandelli v. Methodist
Hosp., 777 A.2d 1138 (Pa.Super. 2001)). Appellant timely filed a notice of
appeal on February 17, 2023. On February 22, 2023, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. Appellant subsequently complied.
Appellant now presents the following issues for our review:
That the trial court erred in not granting [Appellant’s]
motion for an extension of discovery deadlines to allow
additional time to complete discovery and complete expert
disclosure. The failure to grant [Appellant’s] motion was
unwarranted, unreasonable, improper, an abuse of
discretion, and resulted in manifest injustice.
-5-
J-S29018-23
That the trial court erred in granting [Appellees’] motion for
summary judgment since discovery was not complete.
Granting [Appellees’] motion was unwarranted,
unreasonable, improper, an abuse of discretion, and
resulted in manifest injustice.
That the trial court failed to consider and/or give sufficient
weight to the enumerated circumstances that prevented the
completion of discovery within the timing of the scheduling
order. Granting [Appellees’] motion for summary judgment
without doing so, and denying [Appellant’s] motion for an
extension of the discovery deadlines without doing so, was
unwarranted, unreasonable, improper, an abuse of
discretion, and resulted in manifest injustice.
That the trial court failed to consider and/or give sufficient
weight to defense counsel’s refusal to schedule [Appellee
Rees’] deposition within the timing of the scheduling order,
and the role this played in [Appellant’s] inability to comply
with the expert disclosure schedule required by the
scheduling order. Granting [Appellees’] motion for
summary judgment without doing so, and denying
[Appellant’s] motion for an extension of the discovery
deadlines without doing so, was unwarranted,
unreasonable, improper, an abuse of discretion, and
resulted in manifest injustice.
That the trial court failed to consider and/or impose any
lesser outcome than granting the motion for summary
judgment. Granting [Appellees’] motion for summary
judgment without doing so, and denying [Appellant’s]
motion for an extension of the discovery deadlines without
doing so, was unwarranted, unreasonable, improper, an
abuse of discretion, and resulted in manifest injustice.
That the trial court failed to consider the manifest injustice
visited on [Appellant] as a result of its failure to consider
and/or direct lesser option to dismissal. Granting
[Appellees’] motion for summary judgment without doing
so, and denying [Appellant’s] motion for an extension of the
discovery deadlines without doing so, was unwarranted,
unreasonable, improper, and an abuse of discretion.
That the trial court failed to consider that [Appellant’s]
-6-
J-S29018-23
counsel did not receive notice of the May 26, 2022
conference, as set forth in paragraph 19 of [Appellant’s]
response to [Appellees’] motion for summary judgment.
Granting [Appellees’] motion for summary judgment
without doing so, and denying [Appellant’s] motion for an
extension of the discovery deadlines without doing so, was
unwarranted, unreasonable, improper, an abuse of
discretion, and resulted in manifest injustice.
That the trial court abused its discretion in granting
[Appellees’] motion for summary judgment and denying
[Appellant’s] motion for an extension of discovery
deadlines, resulting in a failure to give [Appellant] her day
in court and denying an opportunity to have her claim
decided on the merits.
(Appellant’s Brief at 2-5).
In her issues combined, Appellant contends that “courts may disregard
any error or defect of procedure which does not affect the substantial rights
of the parties,” and “[a]ny sanction imposed for a discovery [violation] must
be commensurate with the violation.”1 (Id. at 11-12). Appellant maintains
that the trial court’s decision to grant summary judgment in favor of Appellees
“was tantamount to a [discovery] sanction, which resulted in dismissal of the
case[.]” (Id. at 11). Because she believes that the court imposed a discovery
sanction, Appellant insists that the court should have considered: 1) the
nature and severity of the violation; 2) the defaulting party’s willfulness or
____________________________________________
1 Pursuant to Pa.R.A.P. 2119(a), the argument shall be divided into as many
parts as there are questions to be argued. See Pa.R.A.P. 2119(a).
Nevertheless, the argument section of Appellant’s brief is not divided into
sections that correspond to each question presented. Rather, the argument
section addresses one overarching theme: the court’s entry of summary
judgment in favor of Appellees amounted to an improper discovery sanction.
-7-
J-S29018-23
bad faith; 3) prejudice to the opposing party; 4) ability to cure prejudice; and
5) the importance of the precluded evidence in light of the failure to comply. 2
Appellant complains that the court erred by failing to consider these factors,
which weighed in favor of a lesser sanction than dismissal. Appellant
emphasizes that the “only piece of discovery to complete was the deposition
of [Appellee] Rees,” which was delayed because of a medical emergency in
Appellant’s counsel’s family. (Appellant’s Brief at 14). Under these
circumstances, Appellant concludes that the court erred in granting Appellees’
summary judgment motion. We disagree.
Appellate review of an order granting a summary judgment motion
implicates the following principles:
On appellate review, an appellate court may reverse a grant
of summary judgment if there has been an error of law or
an abuse of discretion. But the issue as to whether there
are no genuine issues as to any material fact presents a
question of law, and therefore, on that question our
standard of review is de novo. This means we need not
defer to the determinations made by the lower tribunals. To
the extent that this Court must resolve a question of law,
we shall review the grant of summary judgment in the
context of the entire record.
Valley National Bank v. Marchiano, 221 A.3d 1220, 1222 (Pa.Super. 2019)
(quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152,
1159 (2010)). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.
____________________________________________2 See Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698
A.2d 625, 629 (Pa.Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028(1998).
-8-
J-S29018-23
407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.
2618, 153 L.Ed.2d 802 (2002).
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
The trial court granted Appellees’ summary judgment motion pursuant
to Pa.R.C.P. 1035.2(2), which provides as follows:
-9-
J-S29018-23
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may move
for summary judgment in whole or in part as a matter of law
* * *
(2) if, after the completion of discovery
relevant to the motion, including the production of
expert reports, an adverse party who will bear the
burden of proof at trial has failed to produce evidence
of facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury.
Pa.R.C.P. 1035.2(2). “Where the order at issue is entered not as a sanction,
but to address a substantive deficiency of proof in the cause of action, the
order is properly subject to review under Rule 1035.2 and cases interpreting
that rule.” Grandelli, supra at 1144 (emphasis added).
“The purpose of [Rule 1035.2] is to eliminate cases prior to trial where
a party cannot make out a claim or a defense after relevant discovery has
been completed.” Miller v. Sacred Heart Hosp., 753 A.2d 829, 833
(Pa.Super. 2000) (quoting Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa.Super.
1997)). To establish a prima facie cause of action for medical negligence, a
plaintiff must demonstrate:
(1) a duty owed by the physician to the patient; (2) a breach
of that duty; (3) that the breach of duty was the proximate
cause of the harm suffered by the patient; and (4) that the
damages suffered were a direct result of that harm.
Mazzie v. Lehigh Valley Hospital—Muhlenberg, 257 A.3d 80, 87
(Pa.Super. 2021), appeal denied, ___ Pa. ___, 265 A.3d 205 (2021) (quoting
- 10 -
J-S29018-23
Mitchell v. Shikora, 653 Pa. 103, 116, 209 A.3d 307, 314 (2019)).
Our courts have held that because the complexities of the
human body place questions as to the cause of pain or injury
beyond the knowledge of the average layperson, a medical
malpractice plaintiff generally must produce the opinion of
a medical expert to demonstrate the elements of [a] cause
of action. Thus if, at the conclusion of discovery, the plaintiff
fails to produce expert medical opinion addressing the
elements of his cause of action within a reasonable degree
of medical certainty, [the plaintiff has] failed to establish a
prima facie case and may not proceed to trial. At this
juncture, a moving party is entitled to summary judgment
under Rule 1035.2. In the absence of competent evidence
of medical opinion, the plaintiff may avoid summary
judgment only if the matter … is so simple, and the lack of
skill or want of care so obvious, as to be within the range of
ordinary experience and comprehension of even non
professional persons.[3]
Miller, supra at 833 (internal citations and quotation marks omitted). See
also Mazzie, supra at 87 (reiterating that plaintiff in medical negligence case
must present expert witness who will testify, to reasonable degree of medical
certainty, regarding standard of care, that physician deviated from standard
of care, and such deviation was proximate cause of harm suffered).
Instantly, the trial court expressly stated that its January 20, 2023 order
was not a discovery sanction:
When I considered [Appellees’] Motion for Sanctions in April
of 2022, I did so subject to a different set of standards than
____________________________________________
3 Appellant does not aver that the facts at issue are so simple as to be within
the range of ordinary experience and comprehension of non-professional
persons. Instead, as the trial court observed, the response to the summary
judgment motion indicated that Appellant’s “trial expert has been arranged,
and the only information necessary for him to complete his report [is] the
deposition of [Appellee] Rees[.]” (Attorney Affirmation, filed 11/2/22, at ¶5).
- 11 -
J-S29018-23
those utilized for summary judgment. At that point in the
proceedings, despite the fact that more than seven (7) years
had passed since the surgery at issue, and despite the fact
that [Appellant] was, according to the case management
order then in place, two (2) years beyond the date by which
discovery was to be completed and her expert report was to
be produced, I determined it was not appropriate to
foreclose [Appellant] from presenting evidence, including
expert testimony, at trial. Accordingly, I denied [Appellees’]
Motion for Sanctions and granted [Appellant’s] Motion to
Extend Discovery Deadlines, adopting the new deadlines
that [Appellant] proposed. It is these deadlines upon which
[Appellees] relied when preparing and filing their Motion for
Summary Judgment. I no longer have a motion for
sanctions before me.
Rather, currently pending is [Appellees’] Motion for
Summary Judgment and, filed more than a month past the
deadline for dispositive motions, [Appellant’s] second
Motion to Extend Discovery Deadlines. With respect to the
summary judgment motion, [Appellees] have simply
identified what the Grandelli Court called “a substantive
deficiency of proof in [Appellant’s] cause of action,” i.e., the
absence of an expert report in which a qualified professional
opines, within a reasonable degree of professional certainty,
that Dr. Rees deviated from the standard of care and that
such deviation proximately caused the harm suffered by
[Appellant]. Here, without said report, which [Appellant]
has yet to provide, [Appellant] cannot prevail at trial, and
summary judgment in favor of [Appellees] and against
[Appellant] is appropriate.
(Order and Opinion at 6-7) (some internal citations omitted) (emphasis
added).
Because the trial court did not enter its order as a sanction, we review
the order under Rule 1035.2 and the cases interpreting that rule. See
Grandelli, supra. Based upon our examination of the certified record, we
discern no error in the court’s decision to grant Appellees’ summary judgment
- 12 -
J-S29018-23
motion pursuant to Rule 1035.2. Appellant needed to produce a medical
expert’s opinion and, without one, Appellant could not establish a prima facie
case of medical negligence. See Miller, supra. On this basis, the court
properly granted Appellees’ summary judgment motion. See Valley
National Bank, supra; Chenot, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/13/2023
- 13 -