J-A04014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANK C. MAMONE AND LINDA IN THE SUPERIOR COURT OF MAMONE, HUSBAND AND WIFE, PENNSYLVANIA
Appellants
v.
ST. CLAIR MEMORIAL HOSPITAL; OWEN T. TRAYNOR, M.D. & UPMC EMERGENCY MEDICINE, INC.,
Appellees No. 787 WDA 2014
Appeal from the Judgment Entered May 12, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-09-013201
BEFORE: OLSON, WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 21, 2015
Appellants, Frank C. Mamone (“Mr. Mamone”) and Linda Mamone
(“Mrs. Mamone”), appeal from the judgment entered on May 12, 2014. We
affirm.
The factual background of this case is as follows. According to Mrs.
Mamone, at approximately 6:30 a.m. on July 20, 2007, she was tossing and
turning in bed at which time Mr. Mamone asked her if she were okay. At
7:00 a.m., Mrs. Mamone awoke and discovered that Mr. Mamone, who was
lying next to her, was unresponsive. Mr. Mamone was transported via
ambulance to St. Clair Memorial Hospital (“St. Clair”). Mr. Mamone arrived
at St. Clair at 7:56 a.m. At 8:00 a.m., nurse Mellissa Vietmeier (“Ms.
* Retired Senior Judge assigned to the Superior Court J-A04014-15
Vietmeier”) administered the National Institute of Health Stroke Scale
(“NIHSS”) test. She documented a score of 16. Dr. Owen T. Traynor (“Dr.
Traynor”) began to care for Mr. Mamone at 8:07 a.m. Dr. Traynor was
employed by UMPC Emergency Medicine, Inc. (“UPMC”). At 8:15 a.m., Mrs.
Mamone arrived at St. Clair after driving herself.
At 8:50 a.m., Dr. Traynor ordered a CT scan of Mr. Mamone’s brain.
At 9:07 a.m., the radiologist informed Dr. Traynor that the CT scan was
negative. At 11:26 a.m., Dr. Traynor requested a neurological consultation.
After this consultation, Mr. Mamone was transferred to UPMC Presbyterian-
Shadyside Hospital (“Shadyside”) for surgery to remove the blood clot in his
brain. As a result of the stroke, Mr. Mamone suffered permanent brain
damage.
We also briefly review relevant medical issues in this case. Generally,
there are two types of strokes, ischemic and hemorrhagic. Ischemic strokes
are caused by a blockage in a blood vessel in the brain while hemorrhagic
strokes are caused by the rupture of a blood vessel in the brain. It is
undisputed that the standard of care for the treatment of ischemic strokes,
both in July 2007 and presently, calls for the administration of recombinant
tissue plasminogen activator (“tPA”) within three hours of the patient last
being neurologically normal. When a patient wakes up with stroke
symptoms, it is called a wake-up stroke and the patient is considered to
have last been neurologically normal when he or she fell asleep as there is
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no way of knowing when the stroke began. The tPA treatment is
administered intravenously and generally is able to dissolve the clot in the
blood vessel. However, tPA cannot be safely administered to patients
suffering from a hemorrhagic stroke nor to patients that have been suffering
an ischemic stroke for longer than three hours.
The relevant procedural history of this case is as follows. Appellants
commenced this action on July 22, 2009 by filing a writ of summons. On
October 19, 2009, Appellants filed a complaint against, inter alia, Dr.
Traynor, St. Clair, and UPMC (collectively “Defendants”). Appellants’
complaint alleged that Dr. Traynor committed medical malpractice. The
complaint further alleged that St. Clair and UPMC were vicariously liable for
Dr. Traynor’s malpractice.
On or before September 18, 2012, Appellants served Defendants with
several expert reports, inter alia, an expert report authored by Dr. Steven R.
Levine (“Dr. Levine”). On August 28, 2013, Defendants disclosed that Dr.
James M. Gebel, Jr. (“Dr. Gebel”) would serve as an expert witness on their
behalf.1 On September 23, 2013, Dr. Gebel authored an expert report.
Appellants filed a motion to compel and, on October 2, 2013, Appellants
1 The large gap between the filing of Appellants’ expert report and Defendants’ disclosure of Dr. Gebel as an expert was caused by a procedural irregularity. Trial was originally scheduled to commence in March 2013 and Appellants’ report was filed based upon that trial date. Thereafter, however, Appellants requested a continuance. Trial was then rescheduled for October 2013 and Defendants’ disclosure was made pursuant to the deadlines established for the new trial date.
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received Dr. Gebel’s expert report. On October 9, 2013, Appellants filed Dr.
Levine’s supplemental expert report. On October 24, 2013, Defendants filed
Dr. Gebel’s supplemental expert report.2
On October 25, 2013, Defendants moved to quash notices to
attend/notices to produce directed to representatives of St. Clair and UPMC.
That same day, Defendants moved in limine to prohibit cross-examination of
Dr. Traynor regarding any authoritative source. On October 28, 2013,
Appellants moved in limine to strike Dr. Gebel’s supplemental expert report.
Jury selection occurred on October 28, 2013. On October 29, 2013, the trial
court denied Appellants’ motion in limine, granted Defendants’ motion in
limine in part (permitting cross-examination of Dr. Traynor using only the
American Stroke Association’s Guidelines for the Early Management of Adults
with Ischemic Stroke (“ASA Guidelines”)), and granted Defendants’ motions
to quash. That same day, the jury was sworn and trial commenced. On
November 6, 2013, the jury returned a verdict in favor of Defendants. The
jury concluded that Dr. Traynor did not breach the standard of care.
2 Appellants argue that this supplemental expert report was filed at 2:00 p.m. on October 25, 2013. The certified record reveals, however, that the supplemental expert report was filed at 2:50 p.m. on October 24, 2013. See Defendants’ Supplemental Pretrial Statement, 10/24/13, at 1.
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Appellants filed a post-trial motion on November 15, 2013. The trial court
denied the post-trial motion on April 24, 2014. This timely appeal followed.3
Appellants present four issues for our review:
1. Whether the trial court erred by refusing to grant [Appellants’] motion to strike/motion in limine to preclude testimony of [Dr. Gebel] as to matters set forth in a supplemental report dated October 22, 2013, served on the eve of trial, identifying new and difficult medical issues that [Appellants] were required to address at trial without a reasonable time to consult with medical experts[?]
2. Whether the trial court erred by permitting Dr. Gebel to testify to a congenital absence or abnormality of [Mr. Mamone’s] posterior communicating artery, which went beyond the fair scope of both his original and supplemental reports[?]
3. Whether the trial court erred by granting Defendants’ motion in limine limiting [Appellants’] cross-examination of [Dr. Traynor] and prohibiting [Appellants] from cross-examining Dr. Traynor as to any authoritative sources other than the [ASA Guidelines?]
4. Whether the trial court erred by granting Defendants’ motions to quash notices to attend/notices to produce directed to designated representatives of [St. Clair and UPMC] which sought testimony related to a staffing agreement between [St. Clair and UPMC] and the operation of [St. Clair’s] emergency department[?]
Appellants’ Brief at 5 (certain capitalization and honorifics omitted).
In their first issue, Appellants contend that the trial court erred by
denying their motion in limine to strike Dr. Gebel’s supplemental expert
3 On May 16, 2014, the trial court ordered Appellants to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On May 22, 2014, Appellants filed their concise statement. On August 19, 2014, the trial court issued its Rule 1925(a) opinion. All issues raised on appeal were included in Appellants’ concise statement.
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report. “When reviewing a ruling on a motion in limine, we apply an
evidentiary abuse of discretion standard of review. The admission of
evidence is committed to the sound discretion of the trial court and our
review is for an abuse of discretion.” Commonwealth v. Parker, 104 A.3d
17, 21 (Pa. Super. 2014) (citation omitted). “An abuse of discretion occurs
where the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record.” Commonwealth v. Adams, 104
A.3d 511, 517 (Pa. 2014) (internal quotation marks and citation omitted).
Pennsylvania Rule of Civil Procedure 4003.5 provides, in relevant part,
[(a)(1)(B)] A party may through interrogatories require . . . the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert.
***
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto.
Pa.R.C.P. 4003.5.
Furthermore,
An expert report . . . shall encompass all issues in the liability phase of the case, including issues of professional negligence
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and causation of harm, for which a party to whom a request has been directed will offer expert testimony at trial in support of claims made against the requesting party or in support of defenses raised to the requesting party’s claims. The report shall reflect the best information available to the party producing the report at the time it is produced.
Pa.R.C.P. 1042.27(b)(2).
Finally, with respect to the filing and production of expert reports prior
to trial, the local rules of the Court of Common Pleas of Allegheny County
provide that:
After a plaintiff has filed a praecipe requesting that the case be placed on the next available trial list, each other party in the case shall file within [60] days expert reports summarizing all expert testimony that will be offered by that party to support the defenses to the plaintiff’s claims and to support any claims and defenses involving other parties. After [60] days, each other party’s right to file additional/supplemental reports is subject to the provisions of subsection (7)(d) of this local rule.
(d)(i) A party may file a supplemental expert report which responds to an opposing expert report within [60] days after the opposing expert report was filed.
(ii) Except as provided in subsection (7)(d)(i), a party may not file a supplemental expert report which introduces a new theory of liability of causation or a new defense without leave of Court for good cause shown.
(iii) Except as provided in subsection (7)(d)(i), a party may not subsequently file an expert report prepared by a new expert without leave of Court for good cause shown.
Allegheny County Local Rule 4003.5(7).
Appellants contend that Dr. Gebel’s supplemental expert report
violated Local Rule 4003.5(7)(d)(ii) because it introduced new defenses.
This argument, however, fails to recognize that Dr. Gebel’s supplemental
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expert report was filed in response to Dr. Levine’s October 9, 2013
supplemental expert report – which was filed two weeks prior to the
commencement of trial. The new topics addressed in Dr. Gebel’s
supplemental expert report were in direct response to Dr. Levine’s
supplemental expert report and, therefore, Defendants were not required to
seek leave of court to file Dr. Gebel’s supplemental expert report.
In his supplemental expert report, Dr. Levine opined that, “If, [] as Dr.
Gebel opines, [Mr. Mamone] was far outside the [three]-hour window with a
wake-up stroke then his head CT scan would almost certainly have evidence
of ischemic changes more obvious than those seen on the imaging.” Dr.
Levine Supplemental Expert Report, 10/9/13, at 3. Dr. Levine further
opined that “[T]he conclusion that Dr. Gebel reaches about being ‘essentially
100% certain’ that [Mr. Mamone] would not have achieved successful
recanalization had such a therapy been attempted is not accurate[.]” Id. at
5. Dr. Levine similarly opined that, “The negligence of Dr. Traynor caused
and/or increased [Mr. Mamone’s] risk of developing the type of permanent
deficits that he developed subsequent to and as a direct result of his
ischemic stroke[.]” Id. at 2.
Appellants primarily object to Dr. Gebel’s opinions, in his supplemental
report, regarding imaging studies that were done at Shadyside. These
opinions, however, were in direct response to Dr. Levine’s supplemental
expert report. Specifically, Dr. Gebel stated that the ischemic changes
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referenced by Dr. Levine were actually present in the CT scans and
supported his opinion that Mr. Mamone experienced a wake-up stroke and
the alleged interaction with Mrs. Mamone at 6:30 a.m. did not constitute the
last time Mr. Mamone was neurologically normal. Dr. Gebel’s opinions with
respect to the scans at Shadyside also refuted Dr. Levine’s opinion that
administration of tPA would likely have prevented the injuries that Mr.
Mamone suffered as a result of the stroke.
We find instructive this Court’s decision in Keffer v. Bob Nolan’s
Auto Serv., Inc., 59 A.3d 621 (Pa. Super. 2012), appeal denied, 69 A.3d
602 (Pa. 2013). In that case, the defense expert filed a supplemental expert
report which expressed opinions in response to the plaintiff’s expert’s
supplemental report. The plaintiff thereafter moved to strike the defense
expert’s supplemental report and to bar the defense expert from testifying
as to the newly expressed opinions. This Court held that:
The record is devoid of any evidence of a willful violation of the discovery rules or bad faith by the [d]efendants. The [d]efendants did not hide the identity of their expert and did not attempt a “trial by ambush.” On the contrary, [the] supplemental report was necessary only because [plaintiff’s] supplemental report introduced new issues in responding to [the defense expert’s] two prior reports.
Keffer, 59 A.3d at 654.
The same thing occurred in this case. Dr. Levine’s supplemental
expert report included new opinions in response to Dr. Gebel’s original
expert report. Dr. Gebel therefore responded by filing a supplemental
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expert report that addressed Dr. Levine’s new opinions. Such a practice has
become commonplace in today’s civil litigation, particularly in medical
malpractice litigation. It does not amount to trial by ambush; rather, it
permits both parties to narrow the issues for trial by highlighting the
opinions that will be offered by expert witnesses for the factfinder’s
consideration. As Dr. Gebel’s supplemental expert report was a legitimate
response to Dr. Levine’s supplemental expert report, the trial court did not
abuse its discretion in denying Appellants’ motion to strike Dr. Gebel’s
supplemental expert report.
Furthermore, even if the trial court erred by denying Appellants’
motion in limine, that error was harmless. “An error is harmless if the court
determines that the error could not have contributed to the verdict.”
Bensinger v. Univ. of Pittsburgh Med. Ctr., 98 A.3d 672, 683 n.12 (Pa.
Super. 2014) (internal alterations and citation omitted). Dr. Gebel’s
supplemental expert report is focused primarily on causation, not the
standard of care or any departure therefrom. Specifically, Dr. Gebel’s
supplemental expert report discusses six discrete factors. The report
summarizes these six factors and states that “[t]he only reasonable
conclusion is that [Mr. Mamone] would have not in any way benefited from
IV t[PA] (or any other recanalization) therapy had it been administered at
any time from his arrival at St. Clair[.]” Dr. Gebel Supplemental Expert
Report, 10/23/13, at 4. This conclusion, and a detailed review of the expert
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opinions offered in this case by all parties, indicates that Dr. Gebel’s
discussion of the six factors only addressed causation and not the standard
of care.
As
[t]he jury found no negligence on the part of [the] defendant, [it] never reached the issues of causation or damages. Therefore, any error with regard to the testimony on causation was harmless and cannot be the basis for a new trial. . . . Plaintiffs suggest that the jurors may have decided there was no negligence because they thought there was no causation, but this is sheer conjecture.
Zoppi v. Seok, 51 Pa. D. & C.4th 541, 554–555 (C.C.P. Lehigh 2001), aff’d,
804 A.2d 72 (Pa. Super. 2002) (unpublished memorandum); see Parr v.
Ford Motor Co., 2014 WL 7243152, *14 (Pa. Super. Dec. 22, 2014) (en
banc) (error in admission of causation evidence was harmless as the jury did
not reach the issue of causation); see also Boyle v. Indep. Lift Truck,
Inc., 6 A.3d 492, 496 (Pa. 2010) (issue of comparative negligence went to
causation and since the jury found that the defendant was not negligent any
error regarding the admission of comparative negligence evidence was
harmless); Jewelcor Jewelers & Distribs., Inc. v. Corr, 542 A.2d 72, 80
(Pa. Super. 1988), appeal denied, 569 A.2d 1367 (Pa. 1989) (same);
Mickey v. Ayers, 485 A.2d 1199, 1203 (Pa. Super. 1984) (same);
Robinson v. Philadelphia, 478 A.2d 1, 3-4 (Pa. Super. 1984) (same);
Ries v. MTD Products, Inc., 456 A.2d 211, 214 (Pa. Super. 1983) (same);
Dean v. Trembley, 137 A.2d 880, 883 (Pa. Super. 1958) (same); Whitton
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v. H.A. Gable Co., 200 A. 644, 646 (Pa. 1938) (same); cf. Harkins v.
Calumet Realty Co., 614 A.2d 699, 707 (Pa. Super. 1992) (same with
respect to superseding cause).
Appellants identify only three parts of Dr. Gebel’s supplemental expert
report that implicate the standard of care and suggest that Dr. Traynor
breached a duty owed to Mr. Mamone by failing to administer tPA. These
topics include (1) the fact that Mr. Mamone experienced a wake-up stroke;
(2) the inability of St. Clair to provide tPA within 90 minutes; and (3) the
size of Mr. Mamone’s stroke.4 However, the record confirms that Dr. Gebel’s
original expert report discussed these three issues. As to the wake-up
stroke portion of the report, Appellants concede that Defendants’ theory
throughout the case was that Mr. Mamone suffered from a wake-up stroke.
See Appellants’ Brief at 12. In his original expert report, Dr. Gebel’s first
4 These three issues relate to standard of care, and not causation, because they impact whether or not Dr. Traynor should have administered tPA within the three-hour time frame. If Mr. Mamone suffered a wake-up stroke, he was not a candidate for tPA. If St. Clair were not equipped to diagnose a stroke and treat with tPA within 90 minutes, Dr. Traynor did not breach the standard of care. Finally, if Mr. Mamone had a large stroke he was not a candidate for tPA. Therefore, these three issues related to the jury’s determination regarding whether Dr. Traynor breached the standard of care.
On the other hand, the remaining issues Dr. Gebel discussed in his supplemental expert report addressed what would have occurred if Dr. Traynor had administered tPA to Mr. Mamone within 90 minutes of his arrival at St. Clair. Dr. Gebel opined, in his supplemental expert report, that if Mr. Mamone had been administered tPA within that 90 minute timeframe it would have had little to no impact on Mr. Mamone’s recovery from the stroke. Therefore, these other issues went to the issue of causation and not to the standard of care, or breach thereof.
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opinion was that Mr. Mamone suffered from a wake-up stroke. Dr. Gebel
Expert Report, 9/23/13, at 3. As to the ability of St. Clair to provide tPA
within 90 minutes, that issue was also discussed in Dr. Gebel’s original
expert report. Id. at 4.
Appellants spend a significant portion of their brief arguing that Dr.
Gebel’s opinion related to the size of Mr. Mamone’s stroke was a new
addition to Dr. Gebel’s supplemental expert report. Dr. Gebel’s opinion
regarding the size of Mr. Mamone’s stroke, however, was discussed in Dr.
Gebel’s original expert report. Specifically, Dr. Gebel noted that, correctly
calculated, Mr. Mamone had an NIHSS stroke score of 26. Dr. Gebel’s
Expert Report, 9/23/13, at 2. A large stroke is considered any stroke where
the patient’s NIHSS stroke score is greater than 20. Dr. Gebel’s opinion
relating to the size of Mr. Mamone’s stroke was, therefore, within the fair
scope of his original expert report. Thus, even if the trial court granted
Appellants’ motion to strike, Dr. Gebel’s testimony on topics relating to
standard of care identified by Appellants would not have been precluded.
Accordingly, any error in failing to grant Appellants’ motion in limine and
strike Dr. Gebel’s supplemental expert report was harmless.
In their second issue on appeal, Appellants argue that the trial court
erred in permitting Dr. Gebel to testify regarding a congenital absence or
abnormality of Mr. Mamone’s posterior communicating artery. As this Court
has explained:
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The admission of expert testimony is within the trial court’s sound discretion and we will not disturb that decision without a showing of manifest abuse of discretion. An expert’s testimony on direct examination is to be limited to the fair scope of the expert’s pre-trial report. In applying the fair scope rule, we focus on the word fair. Departure from the expert’s report becomes a concern if the trial testimony would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the response. Therefore, the opposing party must be prejudiced as a result of the testimony going beyond the fair scope of the expert’s report before admission of the testimony is considered reversible error. We will not find error in the admission of testimony that the opposing party had notice of or was not prejudiced by.
Whitaker v. Frankford Hosp. of Phila., 984 A.2d 512, 522 (Pa. Super.
2009) (internal quotation marks and citation omitted); see Pa.R.C.P.
4003.5(c).
Appellants argue that Dr. Gebel never discussed a congenital absence
or abnormality of Mr. Mamone’s posterior communicating artery in his
original expert report nor in his supplemental expert report. We conclude
that the trial court did not abuse its discretion by permitting Dr. Gebel to
testify regarding a congenital absence or abnormality of Mr. Mamone’s
posterior communicating artery because such testimony was within the fair
scope of his expert reports.
Appellants’ argument regarding Dr. Gebel’s testimony is flawed for two
reasons. First, Appellants entire argument is premised on the fact that
certain terms were not present in Dr. Gebel’s expert reports. For example,
Appellants argue that, because Dr. Gebel’s expert reports “never mention
the terms ‘congenital’, ‘anatomy’, ‘anatomical variation’ or ‘abnormality,’”
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Dr. Gebel’s testimony was outside the fair scope of his expert reports.
Appellants’ Brief at 41. Our Supreme Court, however, has rejected use of
this “magic words” approach to determining if an expert’s testimony is within
the fair scope of his or her expert report. See Mitzelfelt v. Kamrin, 584
A.2d 888, 894 (Pa. 1990); see also Expressway 95 Bus. Ctr., LP v.
Bucks Cnty. Bd. of Assessment, 921 A.2d 70, 79 (Pa. Cmwlth. 2007)
(internal quotation marks and citation omitted) (“An expert’s trial testimony
that constitutes a reasonable explanation or even an enlargement of the
expert’s written words may be deemed to fall within the coverage of fair
scope.”). Instead, our Supreme Court has instructed that we must view Dr.
Gebel’s testimony in its entirety, along with his expert reports, to determine
if the testimony was within the fair scope of his expert reports. See
Mitzelfelt, 584 A.2d at 894; see also Hickman v. Fruehauf Corp., 563
A.2d 155, 157 (Pa. Super. 1989), appeal denied, 596 A.2d 158 (Pa. 1991).
Furthermore, Appellants’ argument is premised on the assumption that
Dr. Gebel could only testify as to opinions set forth in his original expert
report and not those opinions expressed in his supplemental expert report.
This, however, is an incorrect interpretation of Rule 4003.5(c). Rule
4003.5(c) expressly states that an expert witness may testify regarding
opinions that he or she offered in a supplemental report. In this case, as
discussed above, the trial court declined to strike Dr. Gebel’s supplemental
expert report and we have determined that the trial court did not abuse its
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discretion in so ruling. Therefore, Dr. Gebel was permitted to testify at trial
regarding opinions included in both his original expert report and his
With these principles in mind, we carefully reviewed Dr. Gebel’s
original expert report and his supplemental expert report. When considered
as a whole, we conclude that the expert reports fairly encompass his opinion
expressed at trial that there was a congenital absence or abnormality of Mr.
Mamone’s posterior communicating artery. Specifically, in his supplemental
expert report, Dr. Gebel opined there was “angiographic evidence of no or
minimal left posterior communicating artery.” Dr. Gebel Supplemental
Expert Report, 10/23/13, at 4.
Dr. Gebel’s supplemental expert report used the phrase “no or
minimal” instead of the term “absence or abnormality.” There is no
substantive difference between this terminology. The word “absence”
means “the fact of being without something; lack.” Collin’s English
Dictionary (10th ed. 2012). Dr. Gebel’s supplemental expert report opined
that there was evidence that there was no, or lack of a, posterior
communicating artery. Similarly, a posterior communicating artery that is
normal is not “minimal.” Thus, it is abnormal. See id. (defining abnormal
as “not normal; deviating from the usual or typical; extraordinary.”).
Therefore, Dr. Gebel’s trial testimony aligned closely with the opinion
contained within his supplemental expert report. As such, Dr. Gebel’s trial
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testimony was within the fair scope of his expert reports and the trial court
did not abuse its discretion by permitting him to testify regarding a
congenital absence or abnormality of Mr. Mamone’s posterior communicating
artery.
Furthermore, even if the trial court erred by permitting Dr. Gebel’s
testimony, such error was harmless. Dr. Gebel’s testimony regarding the
absence or abnormality of Mr. Mamone’s posterior communicating artery
addressed causation. Specifically, this testimony attempted to prove that
even if Dr. Traynor administered tPA within 90 minutes of Mr. Mamone’s
arrival at St. Clair, Mr. Mamone would not have successfully recovered.
Contrary to Appellants’ assertions, this testimony was not offered to prove
that Dr. Traynor had breached the standard of care.5 As noted above, when
a trial court errs by admitting evidence relating to causation and the jury
determines that the defendants were not negligent, such error is harmless.
Accordingly, even if the trial court erred by permitting Dr. Gebel’s testimony,
Appellants would not be entitled to relief on appeal.
In their third issue, Appellants argue that the trial court erred by
granting Defendants’ motion in limine regarding the cross-examination of Dr.
Traynor. The trial court ruled that Appellants could not cross-examine Dr.
5 Appellants argue that the fact that Dr. Gebel was qualified as an expert regarding standard of care is dispositive. Dr. Gebel, however, was offered as an expert in both standard of care and causation. See N.T., 11/4/13, at 884. Accordingly, his opinions must be examined to determine if they addressed standard of care or causation.
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Traynor with respect to any authoritative source other than the ASA
Guidelines. Appellants argue that they intended to cross-examine Dr.
Traynor regarding other learned treatises, inter alia, The Streetmedic’s
Handbook, Owen T. Traynor et al (2004).
We conclude that Appellants waived this issue. “It is axiomatic that
‘issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.’” Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.
Super. 2015), quoting Pa.R.A.P. 302(a) (internal alteration and other citation
omitted). In this case, Defendants filed a motion in limine on the eve of trial
seeking to prohibit Dr. Traynor from being cross-examined with any learned
treatise or similar document. Appellants did not file a written response. The
motion in limine was argued in chambers prior to the commencement of
trial. The trial court asked Appellants’ counsel “Do you have medical
treatises you’re going ---” N.T., 10/29/13, at 48. Before the trial court could
finish its question, Appellants’ counsel replied “Yeah. I’m going to ask him
about the American Heart Association American Stroke Association
guidelines.” Id. The trial court ruled that such cross-examination was
proper in this case. See id. at 48-49. Appellants’ counsel did not aver that
he was planning on using The Streetmedic’s Handbook or any other learned
treatise to cross-examine Dr. Traynor. Instead, after Appellants’ counsel
stated he was planning on using the ASA Guidelines, the trial court granted
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Defendants’ motion in limine in part and the parties proceeded to the next
pre-trial matter.6
“One of the purposes of the waiver rule is to call alleged errors to the
trial court’s attention, and give the court the opportunity to correct the
error.” Stein v. Commw., Dep’t of Transp., Bureau of Licensing, 857
A.2d 719, 724 n.8 (Pa. Cmwlth. 2004) (citation omitted); see also Parker,
104 A.3d at 29 (citations omitted). In this case, Appellants did not alert the
trial court of the alleged error and give it an opportunity to correct itself.
Instead, the trial court believed that it was ruling in Appellants’ favor
because it granted Appellants everything they requested – permission to
cross-examine Dr. Traynor using the ASA Guidelines. In their reply brief,
Appellants concede they did not give the trial court an opportunity to correct
its alleged error. See Appellants’ Reply Brief at 21 n.23 (conceding the trial
court believed the parties had reached a stipulation regarding what
Appellants could use to cross-examine Dr. Traynor). Appellants cannot
thereafter argue that the trial court’s ruling was erroneous and entitles them
to a new trial. Accordingly, Appellants have waived their third issue on
appeal.
6 To the extent Appellants argue that this issue was preserved elsewhere in the record, that argument is waived. See Pa.R.A.P. 2117(c) (requiring that an appellant’s brief include a statement of where an issue was preserved in the record); Pa.R.A.P. 2101 (allowing an appellate court to find waiver when an appellant fails to comply with the applicable rules of appellate procedure).
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In their final issue on appeal, Appellants argue that the trial court
erred by granting Defendants’ motions to quash notices to attend/notices to
produce directed to particular employees of UPMC and St. Clair. The notices
to attend/notices to produce sought evidence relating to the staffing
agreement between St. Clair and UPMC. We review the trial court’s rulings
on the motions to quash for an abuse of discretion.
Appellants argue that they were prejudiced by the trial court’s quashal
of their notices to attend/notices to produce because they did not have “the
opportunity to present evidence regarding Dr. Traynor’s obligations under
the [s]taffing [a]greement[.]” Appellants’ Brief at 52. They also argue that
they were prohibited “from showing that Dr. Traynor had a separate duty to
assist [St. Clair] in development of policies and procedures for [St. Clair’s
emergency department], including an organized protocol for treatment of
ischemic stroke patients.” Id. at 53-54. As this information was irrelevant
to the issues at trial, the trial court did not abuse its discretion in granting
Defendants’ motions to quash.
Dr. Traynor’s obligations under the staffing agreement were
immaterial to this case. The complaint in this case only alleged that Dr.
Traynor breached his duty of due care by failing to administer tPA to Mr.
Mamone within the three-hour treatment window. See Complaint,
10/19/09, at 8-9. Appellants’ complaint did not allege that Dr. Traynor was
negligent in developing practices and procedures for St. Clair’s treatment of
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stroke patients. See id. Dr. Traynor’s obligations and duties under the
staffing agreement were therefore immaterial to determining whether he
breached the standard of care with respect to Mr. Mamone’s treatment.
Furthermore, Appellants did not assert a separate claim against St. Clair
and/or UPMC for having inadequate practices and procedures in place for the
treatment of stroke patients. See id. Instead, the complaint only alleged
that St. Clair and UPMC were vicariously liable for the actions of Dr. Traynor.
See id. Accordingly, the information sought by the notices to attend/notices
to produce was not relevant to this case. The trial court therefore acted
within its discretion by granting Defendants’ motions to quash.
In sum, we conclude that the trial court did not abuse its discretion by
declining to strike Dr. Gebel’s supplemental expert report. Dr. Gebel’s
testimony at trial was within the fair scope of his original and/or
supplemental expert reports. Furthermore, any error in declining to strike
Dr. Gebel’s supplemental expert report and/or permitting his trial testimony
was harmless. Appellants have waived their challenge to the trial court’s
restriction on materials that could be used to cross-examine Dr. Traynor.
Finally, the trial court did not abuse its discretion in granting Defendants’
motions to quash.
Judgment affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq. Prothonotary
Date: 4/21/2015
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