J-A12046-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DLP CONEMAUGH MEMORIAL : IN THE SUPERIOR COURT OF MEDICAL CENTER, LLC D/B/A : PENNSYLVANIA CONEMAUGH HEALTH CENTER, LLC : D/B/A CONEMAUGH HEALTH SYSTEM : AND CONEMAUGH MEMORIAL : MEDICAL CENTER LEE CAMPUS; DLP : HEALTHCARE, LLC D/B/A DUKE : LIFEPOINT HEALTHCARE : : No. 680 WDA 2024 : v. : : : JANE BR 1 DOE AND LAUREL : PEDIATRIC ASSOCIATES, INC., : D/B/A LAUREL PEDIATRIC : ASSOCIATES; JOHNSTOWN : PEDIATRIC ASSOCIATES D/B/A : JOHNSTOWN PEDIATRIC : ASSOCIATES; CONEMAUGH VALLEY : MEMORIAL HOSPITAL D/B/A : MEMORIAL MEDICAL CENTER; UPMC : LEE HOSPITAL AND/OR UPMC LEE : REGIONAL; AND JOHNNIE W. : BARTO, M.D. : : : APPEAL OF: DLP CONEMAUGH : MEMORIAL MEDICAL CENTER, LLC : AND DLP HEALTHCARE, LLC :
Appeal from the Order Entered January 8, 2024 In the Court of Common Pleas of Cambria County Civil Division at No: 2019-2172
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LAUREL PEDIATRIC ASSOCIATES, : IN THE SUPERIOR COURT OF INC. D/B/A LAUREL PEDIATRIC : PENNSYLVANIA ASSOCIATES : : Appellant : : : v. : : No. 681 WDA 2024 : JANE BR1 DOE : v. : : : JOHNSTOWN PEDIATRIC : ASSOCIATES, INC. D/B/A : JOHNSTOWN PEDIATRIC : ASSOCIATES; DLP CONEMAUGH : MEMORIAL MEDICAL CENTER, LLC : D/B/A CONEMAUGH HEALTH : CENTER, LLC D/B/A CONEMAUGH : HEALTH SYSTEM AND CONEMAUGH : MEMORIAL MEDICAL CENTER LEE : CAMPUS; DLP HEALTHCARE, LLC : D/B/A DUKE LIFEPOINT : HEALTHCARE; CONEMAUGH VALLEY : MEMORIAL HOSPITAL D/B/A : MEMORIAL MEDICAL CENTER; UPMC : LEE D/B/A UPMC LEE HOSPITAL : AND/OR UPMC LEE REGIONAL; AND : JOHNNIE W. BARTO, M.D. :
Appeal from the Order Entered January 8, 2024 In the Court of Common Pleas of Cambria County Civil Division at No: 2019-2172
BEFORE: STABILE, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED: April 7, 2026
In these consolidated interlocutory appeals, DLP Conemaugh Memorial
Medical Center, LLC, DLP Healthcare, LLC d/b/a Duke LifePoint Healthcare
(collectively “DLP”) and Laurel Pediatrics Associates (“LPA”) appeal from an
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order consolidating four cases for a single trial. These cases involve different
plaintiffs, different defendants, and individualized allegations of sexual abuse
by a now-incarcerated pediatrician. Although these cases involve common
questions of law, their consolidation will prejudice each defendant before the
jury. We therefore conclude that the trial court abused its discretion by
consolidating these cases for trial against DLP and LPA, and we reverse and
remand for further proceedings.
On May 14, 2019, five plaintiffs filed a tort action against DLP, LPA,
Johnny Barto and other medical defendants alleging that Barto sexually
abused the plaintiffs as minors when he was a pediatrician with LPA and held
privileges at DLP. Subsequently, the case expanded in size to include over
140 plaintiffs with claims of sexual abuse against Barto spanning the course
of several decades. The initial complaint, which serves as the master
complaint, has been amended several times. Barto is now serving a prison
sentence following his guilty plea to sexually abusing family members and his
nolo contendere plea to claims of sexual misconduct against his minor
patients. The master complaint alleges the same causes of action by all
plaintiffs: specifically, childhood sexual abuse and vicarious liability,
negligence—hiring/retention, negligent supervision, negligent
misrepresentation, intentional infliction of emotional distress, civil conspiracy
to protect reputation and finances, medical negligence, violations of Title IX,
and corporate negligence.
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For most of his medical career, Barto co-owned two private pediatric
practices in the Johnstown, Pennsylvania area: Johnstown Pediatric Associates
(owned from 1977-2000) and LPA (2000-2017). Barto also held privileges at
different local hospitals at different times, including defendants Conemaugh
Memorial Hospital, UPMC Lee Regional Medical Center, and DLP. There is no
allegation that any of the hospital defendants owned or were affiliated with
either of Barto’s practices.
In June 2023, after several years of discovery, plaintiffs filed a motion
requesting a case management order in which bellwether cases would be
coordinated for all pretrial purposes but tried individually. DLP filed an
objection asserting that plaintiffs’ claims lacked the commonality and
representativeness that is necessary for a bellwether trial protocol and
therefore would be inefficient and fundamentally unfair to DLP.
On January 8, 2024, the trial judge, the Honorable Norman A.
Krumenacker, III entered an order directing that four bellwether cases be
“combined and . . . tried together.” Order, 1/8/24.
The Court determined that plaintiffs’ bellwether proposal had merit and
directed the parties to submit a list of proposed cases for inclusion in the
bellwether cases. The court ultimately selected four cases. It chose cases that
included stronger and weaker fact patterns against some or all of the
defendants. The cases involved claims that spanned multiple years, varied
legal theories, and some or all of the defendants. The court hoped that upon
completion of discovery, the defendants would file motions for summary
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judgment, since the selected cases involve stronger and weaker factual
allegations against the various defendants. The court hoped resolution of
summary judgment motions would put the parties in a better position to
determine how to proceed on remaining claims to avoid the unnecessary
duplication of pretrial motions and trials. Cases that remained after summary
judgment or severance would proceed to trial, and once a jury verdict was
rendered, the court expected the parties to be in a better position to resolve
the remaining cases having the benefit of the full pretrial practice, associated
rulings, and a jurors’ evaluation of the merit of the plaintiffs’ claims. The court
acknowledged that while the selected cases may not ultimately be proper for
joinder, it was the court’s intention to select a broad assortment of cases that
would provide the court and parties the opportunity to resolve a variety of
issues that would arise by way of motion practice and allow them to develop
a procedure to move the remaining cases more effectively towards resolution.
Trial Court Opinion, 9/5/24 at 3-4. The court did not address whether
consolidation would prejudice any party.
On February 6, 2024, DLP applied for reconsideration of the
consolidation order, or, in the alternative, for certification of the order for
interlocutory appeal under 42 Pa.C.S.A. § 702(b).1 One day later, LPA timely
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1 42 Pa.C.S.A. § 702(b) prescribes:
When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the (Footnote Continued Next Page)
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filed a motion joining in DLP’s application. On February 15, 2024, Judge
Krumenacker denied reconsideration. On February 26, 2024, Judge
Krumenacker recused himself from this case. On March 5, 2024, however,
Judge Krumenacker timely certified the case for interlocutory appeal by
amending the January 8, 2024 order to include the certification language
prescribed in 42 Pa.C.S.A. § 702(b).2 On March 18, 2024, DLP and LPA timely
filed petitions in this Court for leave to take interlocutory appeals from the
consolidation order.3 On June 11, 2024, this Court granted DLP and LPA leave
to appeal.
jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.
Id. DLP’s application was timely under Pa.R.A.P. 1311(b), which requires applications for certification under Section 702(b) to be filed in the trial court within thirty days of the entry of the subject order.
2 See Pa.R.A.P. 1311(b) (authorizing the court to act upon application for certification under Section 702(b) within thirty days after it is filed). None of the parties in this appeal object to the judge’s decision to certify this matter for appeal despite previously recusing himself. Therefore, we will not address whether the judge’s recusal precluded him from entering a certification order.
3 See Pa.R.A.P. 1311(b) (petition for permission to appeal must be filed in this Court within thirty days after entry of certification order under Section 702(b) in trial court).
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DLP and LPA raise the same question in these appeals, “Whether the
trial court abused its discretion in ordering the consolidation for joint trial of
the four cases of Plaintiffs BR1, TS 11, AS67, and AP78, where the cases do
not involve common parties or common questions of fact and law, and where
consolidation will result in unfair prejudice to [DLP and LPA]?” DLP’s brief at
5; LPA’s brief at 3.
Pennsylvania Rule of Civil Procedure 213(a) governs the consolidation
of actions pending in the same county. It provides:
In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.
Id. Consolidation is permissible to avoid “multiple trials and proceedings
involving common facts or issues arising from the same transaction or
occurrence.” Pa.R.C.P. 213, Comment. “The duplication of efforts is a benefit
to both the parties and the courts.” Id. Rule 213 was further promulgated
for “the prevention of inconsistent verdicts ... the elimination of trial delays,
speedier litigation, and the reduction of expenses for the parties.” Skender
v. Skender, 2023 WL 8598273, *5 (Pa. Super., Dec. 12, 2023) (unpublished
memorandum).
When deciding whether to consolidate actions, the court must first
examine whether they “involve a common question of law or fact” or “arise
from the same transaction or occurrence.” Pa.R.Civ.P. 213(a). If this test is
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met, the court must then determine whether consolidation will prejudice any
party. See Azinger v. Pennsylvania R.R. Co., 105 A. 87, 88 (Pa. 1918).
Consolidation is not appropriate when it “would tend to place the objecting
party at a disadvantage, or give an undue advantage to his adversary.” Id.;
see also Malanchuk v. Tsimura, 137 A.3d 1283, 1288 (Pa. 2016)
(observing that Azinger remains good law). Another reason not to
consolidate cases for trial is because the jury might be influenced by sympathy
for the plaintiff. Cruz v. Roberts, 2005 WL 4875762, 78 D. & C. 4th 75, 79
(2005)4 (citing Balla v. Sladek, 112 A.2d 156, 159 (Pa. 1955)). Finally,
consolidation is improper when it creates the risk of jury confusion. Cruz, 78
D. & C. 4th at 79.
We review an order consolidating cases for abuse of discretion or an
error of law. Rogers v. Thomas, 291 A.3d 865, 893 (Pa. Super. 2023). A
key consideration in this analysis is whether consolidation will prejudice the
objecting party. See Balla, 112 A.2d at 159 (court properly refused to
consolidate actions for trial against city and railroads arising out of motor
vehicle accident, where “jury might have been influenced by sympathy for the
decedent to the prejudice of the defendants”); see also Skender, 2023 WL
8598273, *6 (citing Azinger, 105 A. at 88 (“The question is one that must
4 While decisions of common pleas courts are not binding precedent, we may
consider them for their persuasive authority. Miller v. Bunting, 335 A.3d 733, 754 n.19 (Pa. Super. 2025).
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necessarily be left to the discretion of the trial judge, and where the issues
are the same and they arise out of the same transaction, and it does not
appear the trial of the cases together would tend to place the objecting party
at a disadvantage, or give an undue advantage to his adversary, the action of
the court in ordering the cases tried together will not be reversed”)).
Before proceeding further, we note that this appeal involves unique
circumstances. We have not found any Pennsylvania appellate decision
concerning consolidation of civil actions involving alleged sexual abuse. The
only Pennsylvania decision on this subject is the trial court opinion in Cruz
that we discuss in detail below. Furthermore, we have located only one
Pennsylvania appellate decision concerning use of the bellwether case
procedure in a mass tort setting, Ball v. Bayard Pump & Tank Co., Inc., 67
A.3d 759 (Pa. 2013). For the reasons provided below, we find Ball
distinguishable from this appeal. See n.6, infra.
Presently, the court ordered the following cases consolidated for trial:
Case 1—Jane BR1 Doe contends that Barto sexually abused her when she was 10 years old on a single occasion in 2000 during a sports physical at Johnstown Pediatric Associates. She does not allege any claim against DLP or LPA. Plaintiffs’ Fourth Amended Complaint at ¶¶ 73-84.
Case 2—Jane TS11 Doe, Jane BR1 Doe’s sister, contends that her mother told her that Barto sexually abused her as an infant on a single occasion in 2000 or 2001 at an urgent appointment for an earache. She has no recollection of the alleged event. She asserts a claim against LPA but not against DLP. Id. at ¶¶ 163-72.
Case 3—Jane AS67 Doe contends she was a patient at LPA for approximately fourteen years until 2016 and that Barto conducted
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invasive genital and/or breast examinations at her appointments and alleges an abusive and erroneous vaginal examination on one occasion. She asserts claims against DLP and LPA. Notice Of Adoption Of Master Complaint For Jane AS67 Doe.
Case 4—Jane AP78 Doe also contends that Barto conducted invasive genital and/or breast examinations at her appointments between 2000 and 2015. She asserts claims against DLP and LPA. Notice Of Adoption Of Master Complaint For Jane AP78 Doe.
The four actions here do not arise from the same transaction or
occurrence; they arose at different times and places over a period of sixteen
years.
Turning to whether these actions “involve a common question of law or
fact,” the use of “or” demonstrates that this standard is satisfied if the actions
involve a common question of fact or a common question of law. The four
actions do not involve common questions of fact. In Cruz, supra, two cases
were filed in Lancaster County involving alleged abuse of two different minors
at the same day care center and by the same employee. One minor allegedly
was assaulted several times in 1992 or 1993, while the other allegedly was
assaulted in 2002. The plaintiffs in these actions moved to consolidate them
for trial. The court held that consolidation for trial was inappropriate because
there were no common questions that warranted consolidation, even though
both minors alleged abuse by the same perpetrator. The court reasoned:
At issue in the cases is not the assault of one girl, but two. In addition, these assaults occurred approximately a decade apart and would undeniably involve differing factual scenarios. Furthermore, the questions regarding the defendants’ awareness of [the employee’s] propensity to assault children relate to two separate and distinct events and time periods.
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Id., 78 D. & C. 4th at 79-80. Here, as in Cruz, the four cases joined in the
present case do not share a common question of fact, because Barto’s alleged
assaults against the four plaintiffs took place at different times over a sixteen-
year period and in different locations. Moreover, as in Cruz, DLP’s and LPA’s
awareness of Barto’s propensity to assault the four children relate to separate
and distinct events and time periods—so separate and distinct, in fact, that
DLP is not a defendant in two of the four cases and LPA is not a defendant in
one of the four cases.
On the other hand, the four actions involve common questions of law.
The plaintiffs in all four actions allege the same causes of action, so the same
legal standards will come into play in each case to determine questions of
liability. Moreover, the ultimate legal question in each case is the same:
whether the defendants knew or should have known about Barto’s alleged
conduct. Cf. Garrity v. Governance Board of Cariños Charter School,
2020 WL 5074385, *2 (D.N.M. 2020)5 (separate actions brought on behalf of
two minor plaintiffs against school board and its CEO alleging that CEO
assaulted and groomed them at different times; while court ultimately ruled
against consolidation, it held that cases involved similar legal issues under
5 Although decisions from lower federal courts are not binding precedent, we
may consider them for their persuasive authority. Okeke-Henry v. Southwest Airlines, Co., 163 A.3d 1014, 1017 n.4 (Pa. Super. 2017).
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constitutional law and Title IX). Given the overlap in legal issues, we conclude
that one of the tests for consolidation is satisfied.
Nonetheless, although common questions of law exist, we conclude that
consolidation of these cases is improper because of the risks to DLP and LPA
of prejudice and jury confusion.
In Cruz, the trial court reasoned that prejudice would occur by
consolidating different cases involving emotionally charged but different
allegations of abuse to minors. The court explained:
By trying the two matters together, the jury might wrongly conclude that the defendants knew, or at least should have known, of that prior assault. Upon hearing that a young girl was previously assaulted by the same man who then assaulted another young girl, a jury could be improperly swayed and/or confused by such information. More likely, the defendants will be prejudiced by such evidence, regardless of how this court instructs the jury to view the evidence. Once a jury hears of the 1992/1993 assault, knowledge of that incident might be imputed onto all of the defendants, thereby prejudicing the defendants in relation to the 2002 incident. Therefore, this court cannot consolidate the matters for trial.
Id., 78 D. & C. 4th at 80. If consolidation will prejudice any party, the court
should not order consolidation, even if the “commonality of law or fact
questions otherwise abounds.” Id. at 79; see also Garrity, 2020 WL
5074385, at *4 (finding that consolidation will prejudice defendants because,
inter alia, “the potential that a jury may impute certain facts from one case to
the other is too high for the Court to ignore”).
This same rationale defeats consolidation here. The trial court explained
in its Pa.R.A.P. 1925(a) Opinion that it believed consolidation of these cases
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would promote judicial efficiency. The court stated that the four cases were
“bellwether cases” through which “the Court and parties could resolve
common issues and motions in a manner that would better inform the parties’
actions moving forward on the remaining cases.” Pa.R.A.P. 1925 Opinion,
9/6/24, at 2. The court completely failed, however, to consider whether
consolidation would prejudice the defendants.
We believe that consolidation presents a distinct danger of prejudice to
DLP and LPA. The four lawsuits name different defendants and allege sexual
assaults over a sixteen-year period. The jury will have to keep track of what
evidence applied to what party during what period of time. This ultimately
may create the potential for errors to be made in terms of liability and
damages. Moreover, the jury’s sympathy will lie with the plaintiffs, because
they each will present emotionally charged accounts of heinous crimes that
they allegedly suffered as minors. Presenting four such cases in a single trial
will expose the defendants to the serious risk of guilt by association and also
raise the possibility that the jury will confuse which evidence applies to which
defendant. Although the plaintiffs suggest that the court will eliminate any
prejudice through limiting instructions, we are not confident that limiting
instructions will alleviate prejudice or promote judicial efficiency in such a
highly emotional setting. See Dashnaw v. Usen, 2006 WL 1742174, *4
(N.D.N.Y. 2006) (court denied consolidation of separate sexual harassment
actions brought by two plaintiffs against their employer and its employees; if
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cases were consolidated, one plaintiff might bolster her claims by evidence
relating to the other plaintiff, thus prejudicing one of the individual defendants
through “bootstrapping” and requiring “innumerable jury instructions just to
keep the jury from lumping the particular facts into one sum”).
Consolidation also is improper due to the risk of jury confusion. In Cruz,
the court observed that consolidation should not take place when it might
result in “over-complication of issues.” Id. at 79 (citing Limbert v. Sealview
Plastics Inc., 17 Pa. D. & C. 2d 785, 786 (1959)). Cruz went on to hold that
consolidation was improper because “[a] single jury, hearing both matters,
might be confused by the unusual and significant chronological separation
between the two alleged incidents.” Id. at 80. As stated above, one plaintiff
was allegedly assaulted in 1992-93, while the other was allegedly assaulted
in 2002.
The same danger of jury confusion exists here, perhaps to an even
greater degree that in Cruz. The trial court admitted that the four bellwether
cases “include[] stronger and weaker fact patterns against some or all of the
Defendants. The selected cases involved claims that spanned multiple years,
varied legal theories, and some or all of the Defendants.” Opinion at 3.
Moreover, there are six separate defendants in this lawsuit, each of whom
represents disparate time periods and discrete issues not universal to all
defendants. The claims brought by individual plaintiffs against each
Defendant are based on distinct sets of facts. A proposed special verdict form
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under this scenario may necessarily be long and extraordinarily complex. All
of these factors counsel against consolidation in the manner contemplated by
the trial court.
In sum, the prejudice and confusion that consolidation will cause leads
us to conclude that the order of consolidation constitutes an abuse of
discretion by the trial court. We therefore vacate the consolidation order as
to DLP and LPA and remand for further proceedings.6
6 We also find it helpful to distinguish this appeal from Ball, the only other Pennsylvania appellate decision we can find concerning the use of a bellwether case procedure. In Ball, forty-five residents brought a toxic tort action against a gasoline station and other affiliated businesses alleging that gasoline and vapor from a widespread underground leak had entered their homes, causing property damage and physical illness. The trial court issued an order severing the cases of four bellwether plaintiffs for trial in reverse bifurcated fashion, with exposure, causation and damages to be tried first followed by a separate trial on liability, if necessary. The plaintiffs objected to the severance portion of the order but not the bifurcation portion. The trial court determined that severance would avoid prejudice, because
the Defendants would suffer by allowing the Plaintiffs to bolster each individual claim with the mere fact that [forty-one (41)] other claims had been filed (albeit with different injuries and different property locations) … Clearly, the ‘spill-over’ effect of dozens of Plaintiffs alleging exposure and claims of injury, distress, disease, fear, and property damage would have had an insurmountable prejudicial effect on the Defendants.
Id., 67 A.3d at 764 (citing trial court opinion). Following the exposure- causation-damages trial, the jury found that none of the bellwether plaintiffs had suffered injury or damages attributable to the gasoline leak. Our Supreme Court held that the trial court acted within its discretion in severing the cases and assigning four bellwether plaintiffs. The Court reasoned that the trial court “carefully considered a host of factors relevant to determining whether (Footnote Continued Next Page)
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Order vacated as to DLP and LPA. Case remanded for further
proceedings. Jurisdiction relinquished.
4/7/2026
severance of the test cases was warranted under Rule 213(b) for convenience and avoidance of prejudice.” Id. at 769.
The important distinction between Ball and the present case is that while the trial court in Ball considered a “host of factors,” including prejudice, in reaching its decision, the trial court herein failed to examine the question of prejudice, which our Supreme Court has held is an essential criterion in the consolidation analysis. See Balla, Azinger, supra.
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