J-A06020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREGORIA HERRERA AND ALCIBIADES IN THE SUPERIOR COURT OF DELORBE PENNSYLVANIA
v.
GEORGIE BAUM, INCORRECTLY DESIGNATED AS GEORGE SUAREZ AND LUISA DIAZ
APPEAL OF: GEORGE BAUM
No. 863 EDA 2014
Appeal from the Order Entered February 27, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): January Term, 2012 No. 01443 -------------------------------------------------------------------------------------
GREGORIA HERRERA AND ALCIBIADES IN THE SUPERIOR COURT OF DELORBE PENNSYLVANIA
GEORGE BAUM, INCORRECTLY DESIGNATED AS GEORGIE SUAREZ AND LUISA DIAZ
APPEAL OF: LUISA DIAZ
No. 1007 EDA 2014
Appeal from the Order Entered February 27, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): January Term, 2012 No. 01443
BEFORE: PANELLA, J., OTT, J., and JENKINS, J. J-A06020-15
MEMORANDUM BY OTT, J.: FILED JUNE 16, 2015
In this consolidated appeal involving negligence claims arising from a
motor vehicle accident, Defendants George Baum and Luisa Diaz appeal
from the judgment dated February 27, 2014, but not entered until March 5,
2014.1 The jury determined that Baum and Diaz were each 50% negligent
and their negligence was the factual cause of injuries to Herrera. The jury
awarded Herrera $225,000.00 and her husband, Alcibiades Delorbe,
$10,000.00 for loss of consortium. Baum and Diaz have raised three
common issues. Diaz raised two additional issues. In the common issues,
Baum and Diaz claim the trial court erred: (1) in determining Herrera was
entitled to full tort coverage from her automobile insurer; (2) in refusing to
allow defense counsel to cross examine Herrera’s medical expert with
medical records from Herrera’s treating physicians; (3) in failing to sustain
multiple objections to misrepresentations made by Herrera’s counsel during
closing argument. Additionally, Diaz claims the trial court erred: (4) in
charging the jury that Diaz was subject to the assured clear distance rule;
and (5) in entering judgment when there were no economic damages
presented and no medical records regarding Herrera’s knee surgery.2 After
____________________________________________
1 An appeal is properly taken from the entry of judgment, not from the order denying post-trial motions. Here, pursuant to the certified record, judgment was entered on the docket on March 5, 2014. 2 We have restated these claims for clarity.
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a thorough review of the certified record, submissions by the parties and
relevant law, we reverse and remand for a new trial.
Preliminarily, the certified record reflects that Herrera and Delorbe
were covered by Progressive Insurance policy 48135378-0 as of January 16,
2009. See Motion for Partial Summary Judgment, 12/3/2012. This policy
covered four vehicles, including the Mercedes Benz occupied by Herrera and
driven by Delorbe at the time of the accident. Id. This policy was a limited
tort policy, as Herrera signed the required form, specifically choosing the
limited tort option. Id. On February 23, 2009, approximately one month
later, Delorbe obtained a replacement policy, 481969969-0, effective as of
February 23, 2009. Id. This policy covered the same four vehicles with the
same coverage limits. Id. This policy number appears to be currently in
effect. Id. Delorbe signed the application form requesting both limited tort
and full tort options. Id. The original tort application signed by Herrera,
requesting limited tort, appears to have been attached to the second
application as well. Id. The policy was issued as providing the less expensive
limited tort coverage and Delorbe and Herrera have paid for the limited tort
option since the policy’s inception. Id. Baum filed a motion for partial
summary judgment, seeking a declaration that Herrera was bound by the
limited tort option. The motion was denied due to the ambiguity in Delorbe’s
application. See Order, 1/15/2013.
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The evidence at trial showed that on the afternoon of January 28,
2010,3 Herrera was a passenger in Delorbe’s, 2002 Mercedes ML320 Wagon
as they drove on Rising Sun Avenue in Philadelphia. N.T. Trial, 9/24/2013, at
96. While stopped at a traffic light, the Delorbe vehicle was struck from
behind, either once or twice. Id. at 96-97. Diaz’s vehicle was immediately
behind the Delorbe vehicle. Baum’s vehicle was behind Diaz’s. There was
an issue whether Diaz’s vehicle struck Delorbe and then Baum struck Diaz,
causing a second impact to Delorbe, or if Baum struck Diaz and forced her
vehicle into Delorbe’s vehicle, thereby causing a single impact. Id. at 67.4
A complaint was filed in this matter on January 12, 2012. The
complaint alleged severe and permanent injuries but made no allegation of a
knee injury. One week before trial, counsel for Herrera filed a motion in
limine seeking to preclude reference and introduction into evidence of the
medical records of Drs. George and Daisy Rodriguez (IRC) regarding the
treatment supplied to Herrera. The motion claimed the treating records
were hearsay and were highly prejudicial to Herrera. On the morning of
trial, the trial court orally granted the motion in part, allowing reference only ____________________________________________
3 We note that Herrera’s counsel asserted the accident occurred between 4:00 and 5:00 p.m. and Diaz testified she thought it was about that time. N.T. Trial, 9/24/2013, at 62. However, Police Officer Joseph Sugan testified, pursuant to his report, he responded to the accident scene at 3:00 p.m. N.T. Trial, 9/26/2013, at 24. 4 Because of the nature of the claims, we will relate the facts in two parts. The second part will begin after the discussion of tort election.
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to the history section of the treating records of Drs. George and Daisy
Rodriguez. The court’s ruling precluded records from being entered into
evidence and published to the jury. Counsel for Herrera stated the order
exactly matched a stipulation between the parties. The defense did not
object to that characterization.
We will initially address the three common issues.
TORT ELECTION5
The first issue is whether Herrera was correctly determined to have
been considered “full tort.”6 Tort coverage is a function of a claimant’s own
automobile insurance coverage. “Full tort” allows a claimant to seek any ____________________________________________
5 Although both Diaz and Baum have raised this issue on appeal, the relevant motion for partial summary judgment on this issue was filed by Baum, solely. However, it is clear from our review of the certified record that the resolution of the tort election issue was intended to be a global resolution, binding all parties. Herrera has not argued, nor do we believe, that Diaz’s failure to formally join in Baum’s motion constitutes waiver on her part. 6 As previously mentioned, the trial court denied Baum’s motion for summary judgment on the issue of tort status and held Herrera was entitled to full tort status. Our standard of review regarding an order of summary judgment is well-settled:
[A]n 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.
Summers v. Certainteed Corp., 997 A.2d 1152, 1156 (Pa. 2010) (citation omitted).
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and all damages that flow from the automobile accident. “Limited tort”
allows a claimant to receive non-economic damages only if that claimant has
suffered a “serious injury.” A serious injury is defined as “death, serious
impairment of body function or permanent serious disfigurement.” See 75
Pa.C.S. § 1702. Tort coverage is determined, in the original instance, upon
purchase of the automobile insurance policy. Once tort coverage has been
elected, it remains in effect until affirmatively changed. See 75 Pa.C.S. §
1705(b)(1). At the time of purchase, a named insured must be given the
opportunity to elect one of the coverage options. See 75 Pa.C.S. §
1705(a)(4). Any named insured may make the tort election. See 75
Pa.C.S. § 1705(a)(2). Pursuant to 75 Pa.C.S. § 1705(b)(1), once a tort
option has been elected by a named insured, that election will carry forward
through all subsequent renewals and replacement policies until a properly
executed form electing the other option is received by the insurer. A
“named insured” is “any individual identified by name as an insured in a
policy of private passenger motor vehicle insurance.” 75 Pa.C.S. § 1705(f).
In determining that Herrera was covered by the full tort option, the
trial court found that because Delorbe had signed on both option lines,
pursuant to 75 Pa.C.S. § 1705(a)(3), he was conclusively presumed to have
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chosen full tort. Additionally, the trial court cited L.S. v. Eschbach, 874
A.2d 1150 (Pa. 2005), although no explanation was provided.7 We disagree.
The citation to Section 1705(a)(3) is incorrect as a matter of law. Section
1705(a)(3) states:
3) If a named insured who receives a notice under paragraph (1) does not indicate a choice within 20 days, the insurer shall send a second notice. The second notice shall be in a form identical to the first notice, except that it shall be identified as a second and final notice. If a named insured has not responded to either notice ten days prior to the renewal date, the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort alternative. All notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative. Any person subject to the limited tort option by virtue of this section shall be precluded from claiming liability of any person based upon being inadequately informed.
75 Pa.C.S. § 1705(a)(3).
To be properly understood, Paragraph (a)(3) must be read in context
with Paragraph (a)(1). Paragraph (a)(1) states:
Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsections (c) and (d). The notice shall be a standardized form adopted by the commissioner and shall include the following language:
75 Pa.C.S. § 1705(a)(1).
7 Remarkably, there is no binding case law regarding this situation, in which both tort options were elected.
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Paragraph (a)(1) applies to those automobile insurance policies in
effect at the time the law changed, July 1, 1990. The named insureds of
those polices were required to be sent the notices described therein.
Reading Paragraph (a)(3) in conjunction with Paragraph (a)(1) describes
what an insurer must do when a named insured was given notice under
Paragraph (a)(1) but did not respond. The insurer must send another notice
and if no response is received, the named insured, and anyone else who
would have been bound by a tort election, are “conclusively presumed” to
have chosen the full tort option. The policy at issue herein was not in effect
on July 1, 1990. Therefore, Section 1705(a)(3) does not apply to the
analysis of an ambiguous tort election form signed in 2009. Accordingly, the
trial court’s reliance on this section was an error of law.8
The trial court also relied upon L.S. v. Eschbach, supra. L.S.
determined that the parents’ election of limited tort did not apply to a minor
who was a pedestrian when she was struck by an automobile. Because the
trial court provided no further discussion of L.S., we presume the trial court
was adopting Herrera’s claim the case stands for the proposition that
“wherever an ambiguity exists with respect to the tort option, the trial Court
must defer to Full Tort.” See Herrera’s Response to Motion for Partial ____________________________________________
8 75 Pa.C.S. § 1705(a)(4) applies to those situations where a person is purchasing an initial policy from an insurer after the July 1, 1990 change of law. 75 Pa.C.S. § 1705(b)(1) applies to renewal and replacement policies, and will be discussed infra.
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Summary Judgment, 1/3/2013, at ¶ 8. However, L.S. is not as strict as
Herrera posits. L.S. actually states: “where there is a question about
[which] coverage will apply, there is a conscious attempt to rule in favor of
the full tort alternative.” L.S., 874 A.2d at 1157. While the law favors a
determination of full tort status, it does not mandate that coverage; an
important distinction.
In contrast to the trial court’s determination that Delorbe’s ambiguous
election form mandated full tort coverage, Baum and Diaz assert any
ambiguity in Delorbe’s election form is not controlling in light of Herrera’s
prior election and the unchallenged fact that the policy has always identified
limited tort coverage. After a thorough review of the certified record and
relevant law, we agree with Baum and Diaz.
Initially we note that pursuant to statutory definition, both Delorbe and
Herrera were named insureds under both policy numbers 48135278-0 (the
Herrera policy) and 48196969-0 (the Delorbe policy). Section 1705(f),
supra. That is to say, both Alcibiades Delorbe and Gregoria Herrera were
specifically identified by name as an insured under the policy. 9 It is
important to note that Section 1705 does not limit election of tort option to
9 We note that Herrera would have been an “insured” under the policy even had she not been specifically named. Pursuant to Section 1705(f), an insured under a policy includes a resident spouse.
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first named insureds.10 Rather, election of the tort option is vested to any
named insured. This determination is reflected by the fact that both the
election form as provided by statute and the insurance policy provide a
signature line for a “named insured.” Compare 75 Pa.C.S. § 1731(b),
(b.1), (c.1), providing rejection of uninsured (UM) and/or underinsured
motorist (UIM) coverage must be made by the “first named insured.”
Accordingly, Herrera was permitted to elect limited tort coverage, which she
did. For reasons unexplained in the certified record, 5 weeks after Herrera
obtained policy 48135278-0, Delorbe obtained a different policy, providing
the same insurance limits for the same four vehicles as the prior policy.11
While Delorbe signed the tort election form for both limited and full tort
options, the record indicates Herrera’s initial, unambiguous, tort election
form was included with Delorbe’s application. The policy was re-issued as
providing limited tort coverage and has provided limited tort coverage ever
since that time.
Recognizing that application of Section 1705(a)(3) to the instant
situation is incorrect as a matter of law, we note that the applicable ____________________________________________
10 Although “first named insured” is not defined by statute, we believe that in practice, the first named insured is generally the owner of the vehicle being insured. 11 It is possible the second policy was issued because in the first policy application, Herrera also signed the rejection forms for UM and UIM coverage. Delorbe, the first named insured, was required to sign those forms.
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statutory provision is Section 1705(b)(1), addressing the application of tort
options for renewal or replacement policies.
(1) The tort option elected by a named insured shall apply to all private passenger motor vehicle policies of the named insured issued by the same insurer and shall continue in force as to all subsequent renewal policies, replacement policies and any other private passenger motor vehicle policies under which the individual is a named insured until the insurer, or its authorized representative, receives a properly executed form electing the other tort option.
75 Pa.C.S. § 1705(b)(1).
Here, Herrera, a named insured, applied for and received a policy of
insurance covering four automobiles and providing limited tort coverage.
Delorbe’s subsequent insurance application sought coverage for the same
vehicles already insured. Essentially, pursuant to Section 1705(b)(1), the
law requires a named insured to affirmatively and unambiguously inform the
insurer or the insurer’s representative of a change in tort status.
Accordingly, Delorbe’s tort election form that checked both full and limited
tort options could not operate to change Herrera’s initial election of limited
tort coverage.12
12 We emphasize that this analysis is not meant to apply to the scenario where an ambiguous tort election form is supplied in the first instance.
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In light of the above, we reverse the trial court’s order declaring
Herrera is entitled to full tort status and find that limited tort status is
applicable.13
We now relate further factual details relevant to the resolution to the
remaining issues.
No injuries were reported to the police at the scene of the accident,
although Herrera did present to Nazareth Hospital emergency room
approximately six days later. N.T. Trial, 9/26/2013, at 28; 9/24/2013, at 98.
At that time, Herrera complained of back and chest pain. Id. She testified
she also felt a little knee pain but did not report it. Id. In June, 2010,
Herrera visited the Injury Rehabilitation Centers of Pennsylvania (IRC)
complaining of chest pain, low back pain and pain radiating to her left leg.
Id. at 116. She was treated by Drs. George and Daisy Rodriquez of the IRC
until August, 2010, at which time the medical reports indicated that to a
reasonable degree of medical certainty, Herrera’s knee pain was “most
probably referred low back pain.” See N.T. Dr. Allen Trial Deposition,
6/6/2013, Exhibit D-1 (IRC report, 8/26/2010).14 At some point in 2011, ____________________________________________
13 Herrera has argued that, regardless of tort status, Herrera suffered a serious injury, thereby allowing her to seek non-economic damages. This would render any discussion of tort election moot. However, in light of our discussion of Herrera’s injuries and causation, we anticipate the possibility of a jury question regarding the nature of Herrera’s injury. 14 The official record contains five treatment reports from the IRC. These reports were exhibits used in the trial deposition of Herrera’s expert, Dr. (Footnote Continued Next Page)
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after her treatment at the Injury Rehabilitation Centers ended, Herrera went
to the Dominican Republic for treatment.15 N.T. Trial, 9/24/2013, at 103. In
September, 2011, approximately 18 months after the accident, Herrera
obtained an MRI of her left knee in the Dominican Republic. N.T. Dr. Allen
Trial Deposition, 6/6/2013, Exhibit D-2 (medical report, 3/6/2012). The
radiologist’s report by Dr. Rosa Alvarez Malagon of Cedimat, noted a
“horizontal laceration that affects the body and posterior horn of medial
meniscus associated with minimal stress on the bones, moderate joint
effusion.” Baum Motion to Preclude, 8/6/2013, Exhibit A (Cedimat MRI
report, 9/16/2011).16
In 2012, Herrera presented to Dr. Paolini for physical therapy. N.T.
Trial, 9/24/2013, at 104. He referred her to South Philadelphia Open MRI
for studies of her lumbar spine and left knee. The MRI report for the left
knee notes Herrera had complained of left knee pain and swelling since the _______________________ (Footnote Continued)
Mark Allen, and were also the subject of a motion to preclude, which will be discussed infra. For clarity, the first three reports, dated 7/6/2010, 7/29/2010 and 8/26/2010, detail Herrera’s follow-up treatments. The two reports, dated 1/26/2012 and 3/26/2012, are discharge summaries. The 3/26/2012 report discusses Herrera’s medical examination obtained in the Dominican Republic. 15 Herrera is a naturalized citizen, originally from the Dominican Republic. 16 The report is actually dated in the usual manner in the Dominican Republic, with the day first: 16/9/2011. We have transposed the month and date to manner of this country.
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January 28, 2010 motor vehicle accident. The MRI showed a complex tear
of the posterior horn of the medial meniscus associated with a small Baker’s
cyst. See N.T. Dr. Allen Trial Deposition, 6/6/2013, Exhibit A-5 (Report
from Open MRI, 9/13/2012).
On December 6, 2012, almost three years post-accident, Herrera
presented to Dr. Mark Allen, Herrera’s medical expert, who examined
Herrera a single time and provided medical impressions of cervical strain and
sprain, lumbosacral strain and sprain with radiculopathy and protruding disc
at L4-5 and L5-S1, and a torn medial meniscus of the left knee. N.T. Dr.
Allen Trial Deposition, 6/6/2013, at 72, Exhibit A-2. His report did not
address causation. Exhibit A-2. Dr. Allen provided Herrera with a shot of
Depomedrol and Xylocaine to her left knee.17 N.T. Dr. Allen Trial Deposition,
6/6/2013, at 52. At trial, Herrera’s counsel presented Dr. Allen, via video
recording, as an expert and as a treating physician, allowing him to testify
beyond the scope of his report.18 Id. at 33. In his testimony, Dr. Allen
opined the knee injury was caused by the motor vehicle accident because a
17 This is a combination of anti-inflammatory and painkiller. N.T. Dr. Allen Trial Deposition, 6/6/2013, at 53. 18 Dr. Allen was presented as an expert in orthopedics. He is board certified by the Academy of Orthopedic and Neurological Associates, apparently without specific designation. His trial deposition revealed that he is not certified in orthopedic surgery, having failed the examination on three occasions, or as an orthopedic specialist. N.T. Dr. Allen Trial Deposition, 6/6/2013, at 12-14.
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complex tear, as noted in the 2012 MRI report, was indicative of a traumatic
episode and Herrera complained of knee pain from the date of the accident.
Id. at 36, 55. As she had not reported any other traumatic event, he
believed the complex tear was a result of a progression of an initial knee
injury caused by the motor vehicle accident of January, 2010. Id. at 58-59.
EXPERT CROSS-EXAMINATION
The next issue is whether the trial court erred in preventing Baum and
Diaz from cross-examining Herrera’s medical expert, Dr. Mark Allen, with the
medical records from Drs. George and Daisy Rodriguez, of the IRC.19
On September 17, 2013, Herrera filed a motion in limine seeking to
preclude Baum and Diaz from making reference to the treatment records of
both Drs. Rodriguez. Further, Herrera sought to preclude any such medical
records from being entered into evidence and from being published to the
19 Our standard of review regarding the admission of evidence is as follows:
“The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law.” B.K. v. J.K., 823 A.2d 987, 991-92 (Pa. Super. 2003). “Thus our standard of review is very narrow.... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” Hawkey v. Peirsel, 869 A.2d 983, 989 (Pa. Super. 2005) (citing Turney Media Fuel, Inc. v. Toll Bros., 725 A.2d 836, 839 (Pa. Super. 1999)).
McManamom v. Washko, 906 A.2d 1259, 1268-69 (Pa. Super. 2006).
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jury. Dr. Allen, Herrera’s medical expert, testified he did not rely upon the
IRC medical records in forming his opinion. Herrera claimed the treatment
records constituted impermissible hearsay and were highly prejudicial. See
Motion in Limine, 9/17/2013, at 7.
Ruling on the motion was deferred until the morning of trial, at which
time the trial court ruled:
This 24th day of September, it is ordered and decreed that the plaintiffs’ motion in limine is granted in part. It’s further ordered that the defendant shall be permitted to reference the history section of the treatment records of Dr. George and Daisy Rodriguez at trial, including for purposes of impeachment, but shall be precluded from entering said records into evidence and from publishing said records to the jury.
N.T. Trial, 9/24/2013, at 4-5.
Immediately after the trial court announced its ruling, this exchange
took place at sidebar:
[Plaintiff’s Counsel (P.C.)]: We did work out a stipulation prior to the ruling.
THE COURT: That’s the ruling. What do you want to do?
[P.C.]: That’s actually exactly the stipulation we had.
THE COURT: Well, it’s an order anyway.
[Baum’s Counsel]: Well, Your Honor, we respect this Court’s order, of course, and in anticipation of the order, counsel and I have worked out some of the objections on the video transcript to make things go smoother.
THE COURT: To the extent that any of the stipulations agreed to by and between counsel are anywhere different than the order, I’ll allow it.
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[Baum’s Counsel]: Thank you.
Id. at 5-6.
The trial court found that by failing to object to the stipulation, Baum
and Diaz waived any objection to the order. We are compelled to agree.
The trial court was informed that independent of its ruling, the parties had
agreed to the precise terms of the ruling. The cross-examination of Dr. Allen
was then edited, thereby indicating the stipulation mirrored the ruling.
Accordingly, Baum and Diaz have waived any objection to the ruling.20 ____________________________________________
20 Despite finding the issue waived, because we are remanding this matter for a new trial at which time this issue of preclusion may be raised again, we note that in support of this motion, Herrera cited Sheely v. Beard, 696 A.2d 214, 218 (Pa. Super. 1997) for the proposition, “[i]n Pennsylvania, medical records of other physicians, which were not relied upon by any doctor cannot be permitted into evidence because the records are impermissible hearsay.” Motion in Limine, 9/17/2013, at ¶ 5. Sheely notes that medical reports on non-testifying doctors cannot simply repeat another’s opinion without bringing to bear on it his or her own expertise and judgment. However, Sheely also notes, “It is well-settled in Pennsylvania that a medical expert is permitted to express an opinion which is based, in part, on medical records which are not in evidence, but which are customarily relied on by experts in her profession. This exception to the rule against hearsay was adopted in Pennsylvania law in 1971 in Commonwealth v. Thomas.” Sheely, 696 A.2d at 218 (citations omitted). Accordingly, Sheely does not prohibit the medical reports of non- testifying doctors as hearsay, and does not address the cross-examination of an expert with the medical reports of a treating physician.
In contrast to the trial court’s ruling and Herrera’s argument, in Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003), a panel of our Court stated, “Specifically regarding medical experts, the “scope of cross- examination involving a medical expert includes reports or records which have not been admitted into evidence but which tend to refute that expert’s assertion.” Id. at 629. See also Collins v. Cooper, 746 A.2d 615 (Pa. Super. 2000) (same); and Kemp v. Qualls, MD, 473 A.2d 1369 (Pa. Super. (Footnote Continued Next Page)
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CLOSING ARGUMENT21
Next, Baum and Diaz claim the trial court erred in failing to sustain
multiple objections raised during closing argument.22 Specifically, Herrera’s
counsel (1) made reference to deposition testimony of Diaz that was not
entered into evidence, (2) referred to Herrera’s answers to interrogatories
that were not entered into evidence, (3) claimed a reference in the
complaint to “chondritis” proved Herrera had claimed knee pain throughout
her lawsuit and (4) referred to Herrera’s tax returns that were not entered
into evidence.23 _______________________ (Footnote Continued)
1984) (right of cross-examination includes the right to examine the witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination). 21 Herrera argues this issue has been waived by the failure to request a mistrial. See McMillan v. 84 Lumber, Inc., 649 A.2d 932, 934 (Pa. 1994). The issue has been properly preserved for our review through timely objections. See Factor v. Bicycle Technology, Inc., 707 A.2d 504, 507 (Pa. 1998). 22 Regarding claims of misconduct in closing argument, we are mindful of the following standard:
A new trial is to be granted where: the unavoidable effect of the conduct or language was to prejudice the factfinder to the extent that the factfinder was rendered incapable of fairly weighing the evidence and entering an objective verdict. If [counsel's] misconduct contributed to the verdict, it will be deemed prejudicial and a new trial will be required.
Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007) (citation omitted) (emphasis in original). 23 We have reordered the claims.
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Depositions
In the closing argument, Herrera’s counsel made specific reference to
Diaz’s deposition testimony, regarding how quickly Diaz had to apply the
brakes before the accident and whether she had been following Herrera’s
vehicle too closely. These questions were at issue because although Diaz
claimed she was stopped at the time of the accident and was pushed into
Herrera’s vehicle as a result of Baum striking her car, Herrera claimed to
have felt two impacts, meaning Diaz independently hit Delorbe’s vehicle.
The trial court found no error in counsel’s reference to Diaz’s deposition
testimony because the jury did not hear any new facts and those portions of
the deposition had been used in Diaz’s cross-examination.
Our review of the certified record confirms the trial court’s
determination. Diaz was cross-examined at trial using her deposition
testimony on both issues. See N.T. Trial, 9/24/2013 at 63-64, 86.
Accordingly, the references in closing argument were not improper.
Interrogatories
Next, Herrera’s counsel referred to various answers to interrogatories
to demonstrate Herrera’s knee complaints had always been known and were
a part of the lawsuit. A central aspect of the defense was Baum’s and Diaz’s
assertion that Herrera made no complaints about her knee until well after
the accident, thereby demonstrating any problems with her knee were not
caused by the accident. Significantly, the Complaint did not contain
references to a knee injury, and any suggestion to the contrary is belied by
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the fact that Herrera’s counsel had to amend the Complaint during trial to
include that claim.24 While addressing the jury during closing, Herrera’s
counsel asserted the following:
[Herrera’s Counsel]: Well, two months after the filing of the Complaint they sent us interrogatories, questions. We filled them out. We sent them back. One of the questions is, What problems is the plaintiff having?
[Baum’s Counsel]: Objection.
[Herrera’s Counsel]: Experiencing pain in her lower back, left knee -
THE COURT: I’ll note your objection.
[Herrera’s Counsel]: We filed the Complaint. We knew that she had pain in the knee. We knew that she had problems in the knee. We knew she had chondritis in the knee. We knew that she should only get this MRI in the United States because we weren’t confident with the Dominican Republic one, and that’s exactly what happened.
N.T. Trial, 9/26/2013, at 103-104.
24 In relevant part, the Complaint claimed:
Plaintiff, Gregoria Herrera suffered severe and permanent injuries to her chest, hip and back, including broad protrusion across the L5-S1 disc with facet hypertrophy, more on the right, disc bulge at L4-5 and L3-4 and costochondritis. The plaintiff suffered internal injuries of an unknown nature. Plaintiff suffered severe aches, pains, mental anxiety and anguish and a severe shock to her entire nervous system, and other injuries, the full extent of which is not yet known.
Plaintiff’s Complaint, 1/12/2012, at ¶ 17.
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There is no medical evidence regarding a separate knee injury until
two years after the accident, in a follow up report from Drs. George and
Daisy Rodriquez of the IRC.25 The trial court agreed that reference to the
interrogatories, which were not in evidence, was improper, but the reference
was harmless as there was ample evidence that Herrera had suffered a knee
25 The report is a discharge summary dated 1/26/2012. Under the “Systems Review” heading is the notation, “She has been experiencing severe, left knee pain.” The report does not attribute this pain to any incident or time period. This is the first time in a medical report knee pain is described separately from radiating pain.
Herrera’s counsel referred to this report in his examination of Dr. Allen, incorrectly claiming the report was dated 1/26/2010 and therefore was evidence Herrera referenced “left leg pain as far back as when she first saw Dr. Rodriguez[.]” See N.T. Dr. Allen Trial Deposition, 6/6/2013, at 86. We note 1/26/2010 is two days prior to the accident at issue herein.
The second IRC discharge note, dated 3/6/2012, is the first written medical record in the certified record that refers to causation of the knee pain. The note refers to the MRI performed in the Dominican Republic reporting “a horizontal tear of the body and posterior horn of the medial meniscus[.]” The note further states, “this finding is not likely related to the motor vehicle accident of 1/28/2010. I state the above within a reasonable degree of medical certainty.” See Dr. Allen Trial Deposition, 6/6/2013, Exhibit D-2.
An IRC medical report dated 8/26/2010, contains the first written notation of knee pain. However, that report also states, “It is my impression that this patient’s knee pain is most probably referred low back pain. I state the above within a reasonable degree of medical certainty.” Although this report is part of the certified record, it is not specifically labeled as an exhibit.
Although these records from IRC were precluded from jury consideration by stipulation, they are part of the certified record and are subject to review. We believe they are relevant to help us determine prejudice.
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injury. We are compelled to disagree with the trial court’s conclusion, as the
issue was not whether Herrera had suffered a knee injury, but whether that
injury was caused by the accident. Accordingly, the reference to the
answers to interrogatories was improper and not harmless error.
Chondritis/Costochondritis
The next issue regarding the closing argument addresses a
misstatement regarding Herrera suffering from chondritis. Initially, we note
that the trial court found the issue waived for failure to make a timely
objection. While we agree that no objection was raised immediately after
this misstatement, Herrera’s counsel followed the comment with the
previously noted, improper reference to interrogatories. This reference
included another misrepresentation regarding chondritis. We believe this
claim of error is inextricably linked to the objection addressed to the
improper reference to interrogatories. Accordingly, we will not parse the
nature of that objection and we will address this claim.
As noted, the timing of Herrera’s knee complaints was a central aspect
of this trial. In arguing to the jury that Herrera had claimed her knee injury
in the Complaint, Herrera’s counsel stated:
He talked about the Complaint, right? You heard him talk about the Complaint. You didn’t see the Complaint, right? No. What’s in the Complaint? Other injuries that may develop over time that may not have been discovered yet. And that’s because at the time of the Complaint the MRIs had not been reviewed yet on the knee. And that’s important. We didn’t know there was a tear so we can’t say there’s a tear in there yet.
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What we did say was – and he said the word – chondritis. That’s inflammation and swelling in the knee. That much we knew. We did not yet know that there was a tear. We knew there was swelling in the knee and that was in the Complaint.
What else was there? Well, two months after the filing of the Complaint, they sent us interrogatories, questions.
N.T. Trial, 9/26/2013, at 102-103.
This portion of the closing argument represents a misstatement of
both the Complaint and medical fact. First, quoted previously, the
Complaint made no reference to chondritis; the Complaint stated
costochondritis. Accordingly, Herrera’s counsel incorrectly informed the jury
what was in the Complaint. Second, as the trial court noted in its Pa.R.A.P.
1925(a) opinion, chondritis is defined by the Mayo Clinic as an inflammation
of cartilage. However, Herrera’s counsel compounded his original
misstatement by incorrectly informing the jury that chondritis specifically
referred to inflammation of knee cartilage. The Mayo Clinic defines
costochondritis, the condition listed in the Complaint, as “inflammations of
the cartilage that connects a rib to the breastbone (sternum).” See
www.mayoclinic.org. This condition relates to the chest injury also claimed
in the Complaint. Costochondritis has no application to any form of knee
injury. Third, there was no medical testimony that Herrera ever suffered
from chondritis of the left knee, or that a diagnosis of a torn medial
meniscus equates to chondritis, or that chondritis necessarily precedes a
diagnosis of a torn medial meniscus. Herrera’s counsel misquoted his own
Complaint and then provided an incorrect definition to the misquoted portion
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in an argument designed to convince the jury the knee injury had been
known and complained of throughout the legal process.26 We find this
constitutes prejudicial error.
Tax Returns
The defense stated Herrera had not produced any documentation,
such as tax returns, to support her claim of lost income.27 In response,
Herrera’s counsel claimed her tax returns showed she made more money in
2010 than she made in 2009, but the fact she made more money after the
accident did not mean she would not have made even more absent the
accident. Counsel’s reference to Herrera’s tax returns were fleeting and
26 We note Herrera’s counsel’s explanation, found in the response to Post- Trial Motions, regarding the costochondritis/chondritis issue: “Plaintiff’s counsel is not a medical doctor. If he made a scientific error in classifying the type of injury sustained by Plaintiff then such an error was an honest one and not a material misrepresentation.” Plaintiff’s Response to Post-Trial Motion, 12/20/2013, at 15, n.6. Not having a medical degree is no excuse for such a misrepresentation. Counsel is responsible for understanding the nature of the claims they present or defend and for learning and using the relevant medical terms associated to those claims.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule of Professional Conduct 1.1 27 Herrera testified she lost $200.00 per week from her inability to work at her beauty shop. That equates to $10,000 per year, assuming a 51-week work year, which is what counsel claimed in closing. N.T. Trial 9/26/2013, at 66.
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non-specific, more akin to an acknowledgement that tax returns had been
filed, than an assertion that the returns would have demonstrated a loss of
income. Accordingly, we find no error in the failure to sustain the objection
to the reference to tax returns.
In sum, the references to the answers to interrogatories that had not
been introduced into evidence addressed a central aspect of the trial, namely
the timing of Herrera’s complaint of knee pain as it relates to causation.
Further, the improper reference to interrogatories included an improper
reference to chondritis. As noted above, this reference was improper for
multiple reasons and also affected the same central aspect of the trial.
Accordingly, we find the trial court’s determination that there was nothing
improper about Herrera’s counsel’s closing argument and any error would
have been harmless to be an abuse of discretion. Because these errors are
critical to the timing of Herrera’s knee injury and hence causation, we
believe Baum and Diaz suffered prejudice.
The next two issues were raised solely by Diaz.
ASSURED CLEAR DISTANCE RULE
In the first issue, Diaz claims the trial court erred in charging the jury
on the assured clear distance rule when the uncontradicted evidence
demonstrated Diaz was stopped prior to striking the Delorbe vehicle. The
assured clear distance rule is based upon 75 Pa.C.S. § 3361 and essentially
requires a driver to be able to stop safely within the distance the driver can
clearly see. The rule is applicable to situations where a driver is alleged to
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have been following too closely, commonly referred to as tailgating. See
Phillips v. Lock, 86 A.3d 906 (Pa. Super. 2014). Diaz is correct that the
rule is inapplicable if she had already stopped her vehicle prior to collision.
However, contrary to Diaz’s assertion, the evidence was not uncontradicted
that she had stopped prior to impact and was forced into Herrera’s vehicle
by Baum. Herrera testified she felt two impacts, not one. Although Herrera
did not see the collisions as she was looking forward at the time of the
impacts, her testimony that there were two impacts raises the question
whether Diaz struck the Herrera vehicle and then Baum struck Diaz, causing
the second impact. Diaz testified that she had been following behind the
Herrera vehicle at a distance of approximately one-half car length.
Accordingly, under the two-impact scenario, the trial court did not err in
charging the jury regarding assured clear distance. Diaz is not entitled to
relief on this issue.
ECONOMIC DAMAGES
In the final issue, Diaz claims the verdict was excessive in that there
were no economic damages presented and Dominican Republic treatment for
the knee injury was never reviewed by Herrera’s medical expert, Dr. Allen.
This claim was preserved through Diaz’s post-trial motion for new trial and
judgment notwithstanding verdict.28
28 Our standard of review is as follows:
(Footnote Continued Next Page)
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We disagree that no economic damages were presented by Herrera.
She claimed she lost $200.00 per week due to her inability to work at her
beauty shop. These damages were not confirmed by an expert, but Herrera
was competent to testify as to how much money she made. Accordingly,
this aspect of damages is supported by testimony.
However, we find merit in Diaz’s challenge to economic damages
related to the knee surgery. We note that Dr. Allen claimed he did not rely
on the initial MRI report from the Dominican Republic. Herrera was in the
Dominican Republic having her knee surgery at the same time Dr. Allen was
giving his trial deposition. Therefore, he cannot have reviewed any
documentation regarding that surgery. The certified record merely indicates
that Herrera had surgery to her left knee. There was no medical testimony
regarding the nature of the surgery. There was no medical testimony
_______________________ (Footnote Continued)
A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing a trial court's denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict.... Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact.... A JNOV should be entered only in a clear case.
Van Zandt v. Holy redeemer Hosp., 806 A.2d 879, 885-86 (Pa. Super. 2002) (citation omitted).
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providing a causal link of the surgery to the accident. Indeed, such
testimony would be impossible as the certified record indicates the
Dominican Republic doctors did not relate the knee injury to the accident
and Dr. Allen could not testify about surgery that had yet to occur.
We note that,
where “the disability complained of is the natural and probably result of the injuries, the fact-finding body may be permitted to so find, even in the entire absence of expert opinion.” The two must be “so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection.”
Montgomery v. Bazaz-Shegal, 798 A.2d 742, 751 (Pa. 2002) (citations
omitted).
We have noted throughout this decision the central dispute over
whether the knee injury and surgery were related to the accident. It bears
repeating there are three elements that must be proven to prevail in a
personal injury negligence action: (1) negligence (duty and breach of duty),
(2) causation, and (3) damages. See Wittrein v. Burkholder, 965 A.2d
1229, 1232 (Pa. Super. 2009). While the trial court is correct that there was
medical evidence Herrera suffered a torn medial meniscus in the left knee,
and that she had surgery on her knee, see Trial Court Opinion, 8/1/14, at
12, there remains a critical omission medically linking the surgery to the
accident. Without that expert link, there is no proof of causation regarding
the knee surgery and the amount of damages associated thereto cannot be
supported. Accordingly, because the jury could only guess as to the
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causality of the surgery, the judgment was unsupportable as rendered.
Therefore, Diaz is entitled to relief on this issue.
In conclusion, because of significant errors during closing argument
and a lack of evidence demonstrating causation between the accident,
Herrera’s knee surgery and the damages associated thereto, Baum and Diaz
are entitled to relief. Accordingly, a new trial is granted. Additionally, we
reverse the pre-trial order that held Herrera was entitled to full tort
coverage.
Judgment vacated. Order reversed. This matter is remanded for a
new trial consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/16/2015
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