J-A28033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MADELINE KERI, PERSONAL : IN THE SUPERIOR COURT OF REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA VELMA KERI : : Appellant : : : v. : : No. 1774 WDA 2019 : CONEMAUGH VALLEY MEMORIAL : HOSPITAL, LAUREL GROUP : ANESTHESIA, P.C., AND MOHAN K. : NAMA, M.D. :
Appeal from the Judgment Entered November 4, 2019 In the Court of Common Pleas of Cambria County Civil Division at No(s): 2013-2389
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: DATE: March 23, 2021
Madeline Keri (Appellant), personal representative of the Estate of
Velma Keri (Decedent), appeals from the judgment entered in the Cambria
County Court of Common Pleas, following a jury verdict in favor of Conemaugh
Valley Memorial Hospital (Hospital), Laurel Group Anesthesia, P.C. (Laurel
Group), and Mohan K. Nama, M.D. (Dr. Nama) (collectively Appellees), in this
medical malpractice action. Appellant contends the trial court abused its
discretion when it limited and/or excluded her use of two learned treatises for
cross-examination purposes, and excluded the testimony of a proposed
witness. For the reasons below, we affirm. J-A28033-20
The facts underlying this appeal are as follows. On July 19, 2011,
Decedent fell in her home and broke her right hip. N.T., 7/11/19, at 186. At
the time, she was 83 years old and weighed approximately 110 pounds. N.T.,
7/15/19, at 116. The next day, July 20th, Decedent underwent successful
surgery at Hospital to repair her hip. N.T., 7/11/19, at 30, 187. Dr. Nama
was Decedent’s anesthesiologist. N.T., 7/12/19, at 43.1 Following surgery,
Decedent was moved to a recovery unit. N.T., 7/15/19, at 123-24. Later,
recovery unit Nurse Lisa Kozuch noted that Decedent was “crying complaining
of pain to right hip.” N.T., 7/12/19, at 63. Nurse Kozuch called Dr. Nama for
permission to administer pain medication to Decedent. Id. at 60; N.T.,
7/15/19, at 124-25. Dr. Nama approved giving Decedent up to two milligrams
of Dilaudid, a hydromorphone, in two doses. N.T., 7/15/19, at 126. The first
dose of one milligram of Dilaudid was administered at 7:25 PM, and the second
one milligram dose was administered twenty minutes later. N.T., 7/12/19, at
59. Shortly thereafter, Decedent went into cardiac arrest. N.T., 7/15/19, at
136, 139. She was eventually resuscitated and transferred to an Intensive
Care Unit, where she remained on a ventilator. Id. at 152. She underwent a
____________________________________________
1 The certified record includes two volumes of testimony dated July 12, 2019, memorializing different parts of the trial proceedings that day. The cover page of one volume bears the description, “Excerpt of Proceedings: Testimony of Pamela Vranich,” whereas the cover page of the other has no corresponding description. Our citations to the July 12, 2019, transcript are to the volume lacking a cover page-description. For ease of review, we further describe this volume as including the testimony of Julianne Keri, Dr. Nama (called by Appellant as if on cross-examination), Madeline Keri, and Lisa Kozuch. See N.T., 7/12/19, at 2.
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tracheostomy on July 29th. Appellant’s Complaint, 10/25/13, at ¶ 31.
Decedent was hospitalized until November 7, 2011, when she was transferred
to a skilled nursing care center where she remained until she returned home
on January 2, 2012. Id. at ¶ 34; N.T., 7/11/19, at 48.
Decedent initiated this medical malpractice action by writ of summons
issued on July 24, 2013. She subsequently passed away on September 12,
2013. Appellant filed a suggestion of death on October 23, 2013, and a
complaint on October 25th, asserting claims for wrongful death and survival
on behalf of the estate. The case proceeded to a jury trial commencing on
July 10, 2019. During the course of trial, Appellant sought to cross-examine
Appellees’ witness with information contained in two “learned treatises.” The
court precluded reference to one publication, and restricted Appellant’s use of
the other. In addition, the court limited the testimony of one of Appellant’s
fact witnesses.
On July 17, 2019, the jury returned a verdict for Appellees, concluding
they were not negligent in their care and treatment of Decedent. Verdict Slip,
7/17/19, at 1. Appellant filed a timely post-trial motion for a new trial, which
the trial court denied on October 3, 2019. Thereafter, Appellant filed a
praecipe for the entry of judgment on November 4th, followed by this timely
appeal on November 27th.2
2Appellant complied with the trial court’s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Appellant raises the following issues on appeal:3
[1] Did the trial court abuse its discretion when it disallowed [Appellant’s] use of the “Up[T]o[D]ate” publication to impeach [the defense] expert[’s] opinion on causation, on the basis that it was neither a “learned treatise” nor contained information that antedated [Decedent’s] surgery?
[2] Did the trial court unfairly restrict [Appellant’s] use of the [Pennsylvania Patient Safety Authority (PPSA)] article to impeach Dr. Nama, when Dr. Nama implied during the examination that he agreed with some of the dosage information in the article?
[3] Should the trial court have offered a limiting instruction to the jury rather than restrict [Appellant’s] use of the “PPSA” article to impeach [the defense] expert[’s] opinion on causation, where the article expressly contradicts [the expert’s] opinion that [Decedent] received an “appropriate” dose of Dilaudid?
[4] Did the trial court abuse its discretion to exclude the testimony of respiratory therapist Carl Kenyon on the basis of a pre-trial order dated May 9, 2019 when such statement was otherwise admissible under Pa.R.E. 803(4)?
Appellant’s Brief at 3.
Appellant’s claims challenge the trial court’s denial of her motion for a
new trial. “Our standard of review in denying a motion for a new trial is to
decide whether the trial court committed an error of law which controlled the
outcome of the case or committed an abuse of discretion.” Pledger by
Pledger v. Janssen Pharm., Inc., 198 A.3d 1126, 1138 (Pa. Super. 2018)
(citation and footnote omitted), appeal denied, 217 A.3d 179 (Pa. 2019).
“An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, ____________________________________________
3 We have reordered Appellant’s claims for purposes of disposition.
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has failed to apply the law, or was motivated by partiality, prejudice, bias or ill-will.”
Burton-Lister v. Siegel, Sivitz & Lebed Assocs., 798 A.2d 231, 238 (Pa.
Super. 2002) (citation omitted). Moreover, rulings concerning the admission
or exclusion of evidence, as well as the scope of cross-examination, lie within
the sound discretion of the trial court. See Crespo v. Hughes, 167 A.3d 168,
181 (Pa. Super. 2017) (citation omitted); Jacobs v. Chatwani, 922 A.2d 950,
965 (Pa. Super. 2007) (citation omitted).
Thus[,] our standard of review is very narrow; we may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.
Crespo, 167 A.3d at 181 (citation omitted).
Appellant’s first three issues concern the trial court’s restriction of her
use of two “learned treatises,” which, she contends, were relevant to impeach
the credibility of both Dr. Nama and his expert anesthesiologist, Dr. Richard
Stypula.
A “learned treatise” is any textbook, published work, or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community. Under Pennsylvania law, the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay, an extrajudicial declaration offered to prove the truth of the matter asserted. Experts may rely on authoritative publications in formulating their opinions, and, to a limited extent, our courts permit experts to briefly reference materials to explain the reasons underlying their opinions. While such materials are not admissible, an expert may be impeached with statements contained in a text or publication deemed authoritative or reliable by him or other experts in the same field.
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Charlton v. Troy, 236 A.3d 22, 38–39 (Pa. Super. 2020) (emphases supplied
and citations omitted). This Court has held that when a “learned treatise” is
used in such a manner, it is “not admitted for the truth of the matter asserted,
but only to challenge the credibility of the witness’ opinion and the weight to
be accorded thereto.” Majdic v. Cincinnati Mach. Co., 537 A.2d 334, 339
(Pa. Super. 1988) (en banc) (citation omitted). See also Aldridge v.
Edmunds, 750 A.2d 292, 296-97 (Pa. 2000) (noting that Pennsylvania has
not followed other jurisdictions, including the federal courts, which permit “the
admission of treatise materials as substantive evidence on a limited basis”).
In her first issue, Appellant argues the trial court abused its discretion
when it precluded her from impeaching Drs. Nama and Stypula with the online
publication “UpToDate.” Appellant’s Brief at 15. Dr. Martin Dauber,
Appellant’s expert anesthesiologist, explained that UpToDate is an “online
medical resource available to physicians which contains . . . relevant, mostly
overwhelmingly clinical information” and is a “frequent site for practitioners to
visit[.]” N.T., 7/10/19, at 106.
By way of background, we note that during Dr. Dauber’s testimony,
Appellant presented to him for authentication three articles from UpToDate.
Appellant simply stated the titles of the articles and noted each included
“literature review current through June 2019.” See N.T., 7/10/19, at 106-07.
Without discussing the contents of those articles, Dr. Dauber testified that
they were “authoritative.” Id. at 107. Pertinently, Appellant did not ask Dr.
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Dauber if the information contained in the articles was relevant at the time of
the alleged malpractice, eight years earlier, in the present case.
Appellant then intended to cross-examine both Appellee Dr. Nama, and
Appellees’ expert witness, Dr. Stypula, with information contained in those
articles. Before trial on the morning of July 15, 2019, the court ruled in
chambers that it would not permit Appellant to use the UpToDate articles.
See N.T., 7/15/19, at 3. Although the discussion was not transcribed,
Appellant’s counsel explained the court’s ruling on the record prior to the start
of the testimony:
In chambers before we came into court, the Court indicated that it would prohibit the use of the articles that Dr. Dauber described as authoritative from the UpToDate source because Your Honor indicated you felt that they were not in the category of authoritative treatises or articles. Counsel for [Appellees] objected because they indicated that they were current through June of 2019. These articles are premised on literature surveys, and each and every cite in the article has a date and none of the matters set forth in the articles are related to — that I intend to cross-examine the experts with — are related to articles or standards that post-dated the treatment in this case. There are three of those. . . .
Id.
Appellant’s challenge to the court’s ruling is two-fold. She contends the
trial court abused its discretion when it determined (1) the UpToDate
publication did not qualify as a “learned treatise” and (2) the articles post-
dated Decedent’s care. Appellant’s Brief at 15-18. First, Appellant maintains
Dr. Dauber’s testimony was sufficient to establish the UpToDate online
resource qualified as a learned treatise. She notes Dr. Dauber testified the
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site, which is frequently visited by practitioners, contains clinical information,
and the specific articles Appellant intended to rely upon were “authoritative.”
Id. at 16. Appellant insists this testimony was “sufficient to lay the proper
foundation for the Up[T]oDate publication to quality as a ‘learned treatise.’”
Id. Second, Appellant argues that, while the publication was current through
June of 2019, the sources the articles relied upon “antedated [Decedent’s]
surgery.” Id. at 18. Indeed, Appellant maintains the publication is “akin to
an anthology of medical articles that a practitioner may consult on a variety
of issues.” Id. Because the opioid subsection upon which Appellant intended
to rely included references that antedated Decedent’s surgery, Appellant
asserts the court’s “broad refusal to allow [her] to cross[-]examine defense
witnesses with this publication was an abuse of discretion[.]” Id.
Initially, our review of this issue was somewhat hampered because the
discussion of Appellant’s potential use of the UpToDate articles, as well as the
court’s ruling, occurred off the record. See N.T., 7/15/19, at 3. Moreover,
although Appellant challenged the court’s ruling in her post-trial motion, the
court did not address that claim in its opinion. See Trial Ct. Op., 10/3/19, at
1-6.4 Consequently, on January 4, 2021, we remanded this appeal and
directed the trial court to file a supplemental opinion addressing “Appellant’s
claim that the court abused its discretion when it precluded her from cross- ____________________________________________
4 We note the trial court did not file a Pa.R.A.P. 1925(a) opinion, but rather, relied upon its October 3, 2019, opinion denying Appellant’s post-trial motion. See Order, 1/6/20.
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examining Appellees’ witnesses regarding the online publication, ‘UpToDate’
[and] Appellant’s proposed use of the publication.” Order, 1/4/21, at 1. The
trial court complied with our directive and filed a supplemental opinion on
February 3, 2021.
Preliminarily, we note that in its supplemental opinion, the trial court
did not discuss whether the UpToDate publication qualified as a learned
treatise. Rather, the opinion focused on the relevance of the recent
publication with regard to the questions presented at trial. See Trial Ct. Op.,
2/3/21, at 5-6. Upon our review, we agree with Appellant that Dr. Dauber’s
testimony — that the UpToDate articles were “authoritative” — was sufficient
to establish the online periodical as a learned treatise. See Charlton, 236
A.3d at 38 (“A ‘learned treatise’ is any textbook, published work, or periodical
that has been accepted as authoritative or as reliable authority by members
of a specific professional community.”).
Nonetheless, we conclude Appellant is entitled to no relief because the
publication date of the articles is the critical issue. As the court explained in
its supplemental opinion, “the articles were exactly what [they] say they are,
‘up to date’ from June 2019.” Trial Ct. Op., 2/3/21, at 5. See N.T., 7/10/19,
at 106-07 (Dr. Dauber testifying the UpToDate articles were “current through
June 2019”). However, the medical care at issue in the present case occurred
in July 2011, nearly eight years before the publication. Therefore, the trial
court concluded “the articles were not relevant to the trial discussing the
standard of care as it was in 2011.” Trial Ct. Op., 2/3/21, at 5.
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Appellant insists, however, the section on opioids that she intended to
use for cross-examination referenced “medical publications that antedated
[Decedent’s] surgery.” Appellant’s Brief at 18. Therefore, because the
sources upon which the article relied were dated prior to Decedent’s surgery,
Appellant contends the trial court abused its discretion when it precluded her
use of the publication for impeachment purposes. See id.
We disagree. The trial court explained that it precluded Appellant from
cross-examining Drs. Nama and Stypula with the UpToDate articles,5
because no specific showing of record was made concerning the date of the material Appellant proposed to us. The [c]ourt deemed that a specific showing was necessary because the content Appellant proposed to use consisted of articles current through June 2019 and referring to standards of care in place in July 2019, the time of the trial, when [D]ecedent’s treatment in this case occurred eight years prior in 2011. The [c]ourt found that it would be improper for . . . Appellant to utilize the UpToDate articles to represent the standard of care during the 2011 time period with an article from June 2019 to impeach the witness’s credibility.
Trial Ct. Op., 2/3/21, at 5-6. Here, Appellant simply failed to demonstrate the
relevance of the 2019 publication with regard to the standard of care in 2011.
5 We note that in its supplemental opinion, the trial court indicates it “permitted Appellant’s counsel to ask five specific questions on cross- examination which . . . effectively allow[ed] for impeachment of the witness[es] without publishing the article[s] to the jury.” Trial Ct. Op., 2/3/21, at 5. However, the record reveals the court permitted this limited examination only with respect to the other learned treatise Appellant introduced – a publication by the Pennsylvania Patient Safety Authority. See N.T., 7/12/19, at 23-25. The court prohibited all references to the UpToDate articles. See N.T., 7/15/19, at 3.
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As Dr. Nama explains in his brief, “the dates of the studies are irrelevant to
the consideration of whether the article post-dated the treatment.” Dr.
Nama/Laurel Group Brief at 15 (emphasis added). He emphasizes that
because “Appellant provided only the June 2019 UpToDate article to counsel
and the [c]ourt, there is no way to know how the article was updated in 2019
or whether the article was originally published prior to the treatment at issue.”
Id. Indeed, Appellant sought to cross-examine Drs. Nama and Stypula with
the 2019 article, not the studies referenced in the article.
Thus, we conclude the trial court did not abuse its discretion when it
precluded Appellant from using the UpToDate publication to impeach Drs.
Nama and Stypula. Indeed, Dr. Dauber testified only that the UpToDate
articles, current through June of 2019, were “authoritative.” See N.T.,
7/10/19, at 106-07. He did not offer any opinion as to whether the articles
contained information that was authoritative at the time of the incident in
question. Accordingly, Appellant is entitled to no relief on this claim.
Appellant’s next two issues concern the court’s restriction of her use of
another learned treatise — a publication by the Pennsylvania Patient Safety
Authority (PPSA) entitled “Adverse Drug Events with Hydromorphone: How
Preventable Are They?” See Appellant’s Brief at 6 n.2. Similar to the
UpToDate publication, the trial court permitted Appellant to present the PPSA
article to Dr. Dauber for authentication. N.T., 7/10/19, at 106. Dr. Dauber
testified that the article, dated September 2010, was “authoritative.” Id.
Appellant intended to use the article to cross-examine Dr. Nama and his
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expert witness, Dr. Stypula. Id. at 9-10. At that time, the court did not
determine how the article could be used during Appellant’s examination of
Appellees’ witnesses. See id. at 92-93.
The trial court revisited the issue on the morning of July 12, 2019, when
Appellant indicated she intended to call Dr. Nama as an adverse witness during
her case-in-chief. N.T., 7/12/19, at 3. Upon inquiry by the trial court,
Appellant stated she intended to impeach Dr. Nama with the PPSA article
which, she averred, directly contradicted Dr. Nama’s assertion that the dosage
of Dilaudid he approved for Decedent was appropriate. See id. at 5. Appellant
asserted the article stated a single dose of “one milligram, half of what this
doctor ordered, or greater for an elderly patient who was opioid-naive” was
“an inappropriate dose.” Id. After hearing argument from both sides, the
court ruled that Appellant could ask Dr. Nama the following questions
concerning the PPSA article:6
Are you familiar with the article, citing the name of the article; the date of the article, which was in 2010; which predated the operation[?] * * *
[D]id you take any of the contents of this article into consideration when you treated [Decedent]?
6 The trial court indicated that it derived the questions from Philadelphia County Court of Common Pleas Judge Mark I. Bernstein’s treatise on the Pennsylvania Rules of Evidence, 2018 edition. See N.T., 7/12/19, at 25. The relevant text is appended to Appellant’s brief as Addendum IV.
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Did you rely upon the contents of the article when you authorized the dosage for her?
Do you agree with the content of the article?
And do you agree that your authorized dosage is at variance, the word at variance, with the recommended dosage in the article?
Id. at 23-24. The court later sustained Appellees’ objection to use of the
phrase “recommended dosage” in the final question, and Appellant rephrased
the question to inquire whether Dr. Nama agreed that the dosage he
prescribed to Decedent varied from the dosage “described” in the article.7 Id.
at 40-41, 45. The trial court also specifically prohibited Appellant from reading
the article to the jury during the examination. Id. at 20-21.
Appellant subsequently called Dr. Nama as an adverse witness, and
asked him the above-stated questions. See N.T., 7/12/19, at 43-45. In
response, Dr. Nama acknowledged: (1) he was aware of the article before he
treated Decedent; (2) he took the contents of the article into consideration
when he treated her; and (3) the dosage of hydromorphone he authorized for
Decedent was “at variance with the dosage described in the article.” Id. at
44-45. Dr. Nama further indicated he did not rely upon the article when he
authorized Decedent’s dosage, and, when asked if he agreed with the “content
7 Appellant also complains that the trial court did not permit her to substitute the phrase “appropriate dosage” for “recommended dosage.” Appellant’s Brief at 28. However, she did not identify this purported erroneous ruling in her post-trial motion. Thus, any allegation of error is now waived. See Bd. of Supervisors of Willistown Twp v. Main Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017).
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of the article as it relates to dosages of hydromorphone[,]” he responded, “Not
completely.” Id. at 45 (some capitalization omitted).
With this background in mind, we address Appellant’s claim that the trial
court abused its discretion when it restricted her cross-examination of Dr.
Nama to the specific questions listed above. See Appellant’s Brief at 29. First,
Appellant insists the court “highjacked” her cross-examination of Dr. Nama by
requiring her to ask “each and every one of the . . . questions it had
formulated[.]” Id. at 30. Appellant cites to the transcript where she asked
the court if she had to ask Dr. Nama the fourth question — if he agreed with
the content of the article — and the court replied, “Yes, I already did this.”
See id. at 30, citing N.T., 7/12/19, at 42 (emphasis omitted). Moreover, she
argues that she was then required to end her cross-examination after asking
the court-formulated questions, despite the fact that Dr. Nama’s final answer
“implied that he agreed with some of the dosage information in the PPSA
article.” Id. at 32 (emphasis added). Appellant maintains: “Dr. Nama’s
response on an issue of substantive importance should have triggered an
opportunity for [her] to explore with some adversarial depth the extent to
which Dr. Nama did agree with the article.” Id. Indeed, Appellant contends
the court abused its discretion when it required her to ask Dr. Nama the court-
formulated questions — and only those questions — regardless of the
witness’s responses. See id. at 30.
Here, the trial court explained that it limited Appellant’s use of the PPSA
article for impeachment purposes to “ensure this inadmissible hearsay was
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not presented as substantive evidence to the jury.” Trial Ct. Op., 10/3/19, at
3. We detect no abuse of discretion.
As noted above, a learned treatise, which is deemed authoritative by
experts in the field, may be used to impeach an expert witness. Charlton,
236 A.3d at 39. This Court has also extended this limited use of learned
treatises to the cross-examination of fact witnesses. See Crespo, 167 A.3d
at 186 (noting the trial court correctly permitted cross-examination of doctor
defendant with learned treatise). However, the law is well-settled that the
contents of such publications are hearsay, and not admissible for the truth of
the matter asserted therein. Majdic, 537 A.2d at 339. Thus, when a trial
court has failed to place appropriate limitations on the use of learned treatises,
and the information contained therein has been read to the jury, the appellate
courts have not hesitated to find error. See Aldridge, 750 A.2d at 298 (trial
court abused its discretion when it failed to “impose appropriate constraints”
on appellee’s use of learned treatise that supported expert’s opinion on direct
examination); Burton-Lister, 798 A.2d at 239 (trial court abused its
discretion when it permitted appellee to “read into the record” parts of learned
treatise while cross-examining appellant doctor).
Upon our review of the record, we conclude the trial court’s formulation
of specific questions, aimed at limiting Appellant’s use of the PPSA article for
impeachment purposes only, did not constitute an abuse of discretion.
Indeed, through her questioning, Appellant was able to show the jury that the
dosage of Dilaudid Dr. Nama approved for Decedent was “at variance with the
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dosage described in the article[.]” N.T., 7/12/19, at 45. Further, Dr. Nama
conceded that he was aware of the article at the time of treatment, and took
some of the contents of the article into consideration when treating Decedent.
Id. at 44-45. This, coupled with Dr. Dauber’s testimony that the article was
authoritative, constituted a permissible, limited use of a learned treatise.
To the extent Appellant now complains that the trial court “highjacked”
her cross-examination — by forcing her to ask questions she did not want to,
and then precluding her from asking any follow-up questions — we conclude
these arguments are waived. First, the record does not support her claim that
she was “force[d]” to ask Dr. Nama questions she did not believe should have
been “advanced in the first place.” See Appellant’s Brief at 30. Indeed, just
prior to calling Dr. Nama as an adverse witness, Appellant asked the court,
“Do I have to ask the one [question], do you agree with the content of the
article?” N.T., 7/12/19 at 42. The court responded, “Yes, I already did this.”
Id. At that point, Appellant responded, “Okay. Fair enough. Okay.” Id.
That was the extent of Appellant’s “objection.” Appellant did not inform the
court that she felt it was highjacking her examination, nor did she provide any
explanation as to why she believed the final question was inappropriate.
Accordingly, no relief is warranted. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”).
Similarly, after Appellant asked Dr. Nama the court-approved questions,
she stated, “Thank you, Dr. Nama, that is all I have.” N.T., 7/12/19, at 45.
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Appellant now insists that Dr. Nama’s response that he did not completely
agree with the contents of the PPSA article “implied that he agreed with some
of the dosage information” in the article, and warranted further questioning.
Appellant’s Brief at 32 (emphasis added). However, because Appellant did
not ask the court to reconsider its ruling in light of Dr. Nama’s response, her
claim is now waived.8 See Pa.R.A.P. 302(a).
Appellant also contends the trial court abused its discretion when it
restricted her cross-examination of Appellees’ expert, Dr. Stypula, with regard
to the same PPSA article. She argues the trial court erred when it limited her
examination of Dr. Stypula to the same questions formulated for her
examination of fact witness (and opposing party) Dr. Nama. Appellant’s Brief
at 24-25. Indeed, she maintains the court should have permitted her to
impeach Dr. Stypula with the statement in the PPSA that “any dosage of one
milligram or greater for a woman of [Decedent’s] physical profile is
‘inappropriate.’” Id. at 26.9
8Appellant’s assertion that she “risked nothing less than the wrath of the trial court” had she requested to continue questioning does not overcome her waiver of this claim. See Appellant’s Brief at 32 n.12.
9 We note Appellant also claims that, rather than restricting her use of the article on cross-examination, the trial court should have issued a limiting instruction to the jury, explaining that the text was used “solely to impeach” the expert’s testimony. Appellant’s Brief at 28-29. This claim was not raised in Appellant’s post-trial motion, and is, thus, waived on appeal. See Bd. of Supervisors of Willistown Twp., 155 A.3d at 44.
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Again, we conclude Appellant is entitled to no relief. As noted supra,
while an expert may be cross-examined with a learned treatise that is
recognized as authoritative in the relevant field, the document may not be
“admitted for the truth of the matter asserted, but only to challenge the
credibility of the witness’ opinion and the weight to be accorded thereto.”
Majdic, 537 A.2d at 339. The questions formulated by the trial court
appropriately limited the use of the PPSA article to impeachment purposes
only.
To the extent Appellant insists the questions were drafted to be used
only during the cross-examination of a fact witness, we disagree. See
Appellant’s Brief at 22-23. As noted above, the questions were derived from
a treatise on evidence, authored by Philadelphia Court of Common Pleas Judge
Bernstein, discussing Pennsylvania Rule of Evidence 803(18). See Appellant’s
Brief, Addendum IV, Bernstein Treatise. The Comment to Rule 803(18) states
that “Pennsylvania does not recognize an exception to the hearsay rule for
learned treatises.” Pa.R.E. 803(18), comment. Under the heading
“Impeachment of Expert Witness[,]” Judge Bernstein explains that,
pursuant to the Rule, “[a] learned treatise may be used to cross-examine
an expert as to his . . . qualifications, knowledge, opinions or biases.”
Appellant’s Brief, Addendum IV, Bernstein Treatise at 859 (emphases added).
Under the same subsection, Judge Bernstein provides a list of “proper
questions” that may be asked during cross-examination of an expert to ensure
the text is not admitted for the truth of the matter asserted in violation of the
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rule. See id. at 861. The questions crafted by the trial court in the present
case parrot those listed in the Bernstein text. Furthermore, Appellant’s
attempt to differentiate the use of a learned treatise when it is used to cross-
examine a witness, as opposed to a party, also fails. See Appellant’s Brief at
24-25. Indeed, in whatever manner a learned treatise is used, “[u]nder
Pennsylvania law, the contents of a learned treatise offered at trial to
establish principles or theories is inadmissible hearsay[.]” Charlton, 236
A.3d at 38 (emphases added).
Appellant also maintains the trial court’s ruling precluded her from
attacking Dr. Stypula’s opinion that “the two milligrams of Dilaudid that
[Decedent] received was not too much[.]” Appellant’s Brief at 25. She insists:
A medical malpractice trial that allows the opinion of an expert to go unchecked when medical authority to the contrary expressly contradicts not only the opinion of the expert, but even the very words the expert has used to communicate an opinion to the jury, makes for not merely an imperfect trial, but a trial that is manifestly unfair.
Id. at 26.
However, the limitations the trial court placed on Appellant’s use of the
PPSA article did not permit Dr. Stypula’s opinion to go “unchecked.” See
Appellant’s Brief at 26. Rather, as evident in the following exchange,
Appellant was able to demonstrate to the jury that Dr. Stypula’s opinion
regarding the appropriate dosage of Dilaudid for Decedent differed from the
appropriate dosage set forth in the article:
[Appellant’s counsel:] Doctor, I want to show you an article entitled Adverse Drug Events with HYDROmorphone: How
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Preventable Are They, from the [PPSA] that was issued to advise medical facilities of immediate changes that could be instituted to reduce serious events and incidents. . . . * * *
[Appellant’s lawyers gave you the article a]nd asked you to read it?
[Dr. Stypula:] Yes.
[Appellant’s counsel:] Do you agree with the contents of that article, sir?
[Dr. Stypula:] No.
[Appellant’s counsel:] Did you take into account in looking at the Dilaudid dose in this case the information in the publication?
[Dr. Stypula:] No, I didn’t have it. I had not — I’m not familiar with that publication. And when I formed my opinion, I didn’t use it.
[Appellant’s counsel:] The opinion expressed in this publication in respect to Dilaudid is different than what you have told the jurors, isn’t it?
N.T., 7/16/19, at 173-74. Accordingly, we detect no abuse of discretion in
the trial court’s ruling. See Crespo, 167 A.3d at 181.
Moreover, we note that even if we were to conclude the trial court
abused its discretion when it limited Appellant’s use of the PPSA article on
cross-examination, “[t]o constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the complaining
party.” See Crespo, 167 A.3d at 181 (citation omitted). First, as noted
supra, Appellant was able to establish, through the cross-examination of Drs.
Nama and Stypula, that the dosage of Dilaudid Decedent received, which both
doctors opined was appropriate, varied from the dosage described in the PPSA
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article. See N.T., 7/12/19, at 45; 7/16/19, at 174. Second, Appellant was
able to establish, through the testimony of her expert witnesses, that a dosage
of more than one milligram of Dilaudid was an inappropriate, and potentially
harmful, dosage for Decedent. See N.T., 7/10/19, at 138-40 (Appellant’s
expert anesthesiologist, Dr. Dauber, testifying that “[i]t was below the
standard of care to give” Decedent 2 milligrams of Dilaudid; noting, “[i]f 1
milligram was indeed necessary to be given, it could have been given in more
typical increments, like 0.2 milligrams every five to ten minutes monitoring
vital signs, including pain”); N.T., 7/11/19, at 93, 95-96 (Appellant’s expert
registered nurse, Debra Ebersole, testifying that the administration of “[t]he
first dose of Dilaudid was not within the standard of care for [Decedent]
because of her comorbidities[;]” explaining “[i]f this were my patient . . . I
would have started at 0.2 milligrams . . . and see how she reacts to it”). Thus,
no relief is warranted on Appellant’s second claim.
Lastly, Appellant argues the trial court abused its discretion when it
excluded certain testimony by Decedent’s respiratory therapist based upon a
pretrial stipulation. Appellant’s Brief at 33. By way of background, we note
Appellees filed a motion in limine to preclude Appellant from offering any
hearsay testimony that Decedent’s death was the result of an overdose.10 See ____________________________________________
10 The motion indicated that during his deposition, Dr. Nama was asked if he “recalled other physicians at [Hospital] telling him that Decedent’s arrest was caused by an overdose of Dilaudid.” Appellees’ Motion in Limine to Preclude Hearsay Evidence Regarding the Cause of Decedent’s Arrest and/or Overdose (Motion in Limine), 3/27/19, at 1.
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Appellees’ Motion in Limine at 1-2. Appellant did not oppose the motion.
Thus, on May 8, 2019, the trial court entered an order directing that
“[Appellant] shall not be permitted to introduce any hearsay evidence at the
time of trial, related to comments made by other physicians regarding the
cause of Decedent’s arrest and/or an overdose.” Order, 5/8/19.
Three weeks before trial, Appellant filed a Fourth Supplemental Pretrial
Statement, which listed one additional fact witness, Carl Kenyon. See
Appellant’s Fourth Supplemental Pretrial Statement, 6/17/19, at 1
(unpaginated). No further information about Kenyon’s proposed testimony
was provided. After Kenyon was called to testify on July 11, 2019, the trial
court asked Appellant the purpose of Kenyon’s testimony. N.T., 7/11/19, at
4. Appellant responded that Kenyon was Decedent’s respiratory therapist at
Hospital. Id. She further stated Kenyon became friendly with Decedent and
her family, and later visited Decedent in her home. Id. Appellant asserted:
“[H]e is mostly going to talk about her condition and the medical events in
the ICU that he was aware of so he is really a fact witness.” Id. After further
discussion, Appellant acknowledged she intended to elicit testimony from
Kenyon that he was told by another doctor that Decedent “was overdosed[.]”
Id. at 8. Appellant argued such a statement was not hearsay because it was
made “in the course of medical treatment.” Id. The trial court precluded that
testimony based upon its May 8, 2019, pretrial order.
On appeal, Appellant contends the pretrial order precluded only
“hearsay statements for which there are no applicable exceptions.”
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Appellant’s Brief at 34 (emphasis added). She maintains that is the only
reason she did not oppose the motion. See id. (“[Appellant’s] counsel would
never in a million years have acquiesced to the motion outright had he
believed it encompassed statements for which a recognized hearsay exception
applied.”). Rather, Appellant insists Kenyon’s proposed testimony was
admissible as a statement made for medical treatment and diagnosis pursuant
to Pennsylvania Rule of Evidence 803(4).11 She explains:
[The] excluded statement to Mr. Kenyon . . . addressed both the “cause” of [Decedent’s] need for respiratory therapy and “how” she sustained the need for it. Cardiac arrest may have multiple etiologies, each of which may require a different subset of treatments. It was therefore necessary for Mr. Kenyon to know the cause of [Decedent’s] cardiac arrest if he was to administer respiratory therapy to her in a safe and medically efficacious manner talked to her etiology.
. . . A statement from an ICU physician to a patient’s respiratory therapist that the patient overdosed . . . is obviously one that addresses the “nature and type of injury” because it serves to educate the therapist on a particular etiology that could direct the course of the patient’s respiratory therapy. . . .
Id. at 36 (citations omitted). ____________________________________________
11 Rule 803(4) provides an exception to the rule against hearsay when an out of court statement:
(A) is made for — and is reasonably pertinent to — medical treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Pa.R.E. 803(4)(A)-(B).
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The trial court found Kenyon’s proposed testimony fell squarely within
its pretrial order precluding “any hearsay evidence . . . related to comments
made by other physicians regarding the cause of Decedent’s arrest and/or
overdose.” Trial Ct. Op., 10/3/19, at 4, citing Order, 5/8/19. We agree.
Appellant stipulated to the broad language in the pretrial order, and, despite
her present complaints, did not request an exception for hearsay statements
made during the course of medical treatment. Thus, her claim fails.
Furthermore, we note that even if we agreed that the pretrial order may
not have included statements made for the purposes of medical treatment,
we conclude Appellant has failed to establish the statement at issue would
have been admissible pursuant to Rule 803(4). “The following two
requirements must be satisfied in order for a statement to qualify as a medical
treatment exception: (1) the statement must be made for the purpose of
receiving medical treatment; and (2) the statement must be necessary and
proper for diagnosis and treatment.” Commonwealth v. Belknap, 105 A.3d
7, 11 (Pa. Super. 2014).
In her brief, Appellant baldly asserts Kenyon may have needed to know
the underlying cause of Decedent’s cardiac arrest to “direct the course of
[Decedent’s] respiratory therapy.” See Appellant’s Brief at 36. However, she
provides no explanation — save for generalized statements that different
“etiologies . . . may require a different subset of treatments” — why this is so.
See id. Moreover, Appellant made a similarly conclusory argument in the trial
court. In fact, in asserting the statement was admissible, counsel for
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Appellant commented only: “And these are statements made in the course of
medical treatment, Your Honor, so they are not hearsay.” N.T., 7/11/19, at
8. Thus, Appellant has failed to demonstrate the purported statement of
another physician — that an overdose caused Decedent’s cardiac arrest — was
“necessary for proper diagnosis and treatment.” See Belknap, 105 A.3d at
11. Accordingly, Appellant’s claim would fail even if we agreed the statement
was not precluded by the court’s pretrial order. See Commonwealth v.
D.J.A., 800 A.2d 965, 977 (Pa. Super. 2002) (en banc) (affirming preclusion
of statement made by child sex abuse victim to doctor implicating father as
abuser because it was not necessary for diagnosis or treatment; “[w]hile
sexual abuse carries with it the danger of contracting a sexually transmitted
disease, a child’s statement identifying the perpetrator cannot obviate that
danger, nor can such a statement, standing alone, determine whether the
child should be tested and/or treated for a sexually transmitted disease”).
Because we conclude Appellant is entitled to no relief on any of the
claims raised on appeal, we affirm the judgment in favor of Appellees.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
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Date: 3/23/2021
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