J-A14008-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
CHRISTOPHER MARAGOS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES P. BRADLEY, UPMC : COMMUNITY MEDICINE, INC. AND : ROTHMAN ORTHOPAEDIC : No. 2310 EDA 2023 ASSOCIATES II, P.C. : : : APPEAL OF: RECONSTRUCTIVE : ORTHOPAEDIC ASSOCIATES, II, P.C. :
Appeal from the Judgment Entered August 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 191100972
BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.
MEMORANDUM BY LAZARUS, P.J.: FILED AUGUST 30, 2024
Reconstructive Orthopaedic Associates, II, P.C. (ROA) 1 appeals from the
judgment,2 entered in the Court of Common Pleas of Philadelphia County, on
a $43.5 million jury verdict in favor of Appellee Christopher Maragos (Plaintiff)
and against ROA and Defendants James P. Bradley, and UPMC Community
____________________________________________
1 Plaintiff filed his complaint against Rothman Orthopaedic Associates II, PC.
However, on March 13, 2020, the parties stipulated to amend the caption of the complaint to reflect Defendant’s proper name, Reconstructive Orthopaedic Associates II, PC, hereinafter referred to as “ROA.”
2 See Taxin v. Shoemaker, 799 A.2d 859 (Pa. Super. 2002) (order denying
post-trial motions not appealable until order reduced to judgment). J-A14008-24
Medicine, Inc., following the denial of post-trial motions. 3 After careful
consideration, we affirm on the basis of the well-reasoned opinion authored
by the Honorable Charles J. Cunningham, III.
Plaintiff is a former NFL safety, special teams player, and team captain
who signed a three-year/$4 million contract with the Philadelphia Eagles in
2014.4 Plaintiff’s contract was extended in 2016 for three years/$6 million.
Plaintiff was, at that time, the highest paid special teams player in the NFL.
During an October 12, 2017 game against the Carolina Panthers, one of
Plaintiff’s teammates collided with Plaintiff’s right knee, causing it to
hyperextend.5 The next day, October 13, 2017, Plaintiff had an MRI taken in
Philadelphia. See Jefferson Outpatient Imaging MRI Right Knee, 10/13/17, at
1 (MRI Impression #3 states “[c]omplex tear of the posterior root attachment
of the medial meniscus (new since 2015) with mild meniscal extrusion.”); see
id. at 1-2 (MRI Medial Compartment notes “[t]here is a complex,
predominantly radial tear involving the posterior root attachment of the medial
3 The jury apportioned ROA’s liability at 33% of the full verdict, or $14,355,000.00. However, the court granted Plaintiff’s Pa.R.C.P. 238 motion for delay damages in the amount of $1,408,658.12, for a total recovery against ROA in the amount of $15,763,658.12. Additionally, although the jury also returned a verdict against Defendants Dr. James P. Bradley and Community Medicine, Inc., Plaintiff entered into a pro rata settlement agreement with Dr. Bradley and his practice, Community Medicine, Inc. 4 Plaintiff was selected as an alternate on the N.F.C. Pro Bowl team in 2014.
5 During the game, an x-ray was taken of Plaintiff’s right knee to rule out a
fracture.
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meniscus with a tiny 4 mm nondisplaced meniscal fragment. This tear is new
since the prior MRI from meniscal extrusion.”). ROA and at-the-time Eagles
head team physician, Dr. Peter DeLuca, reviewed the MRI results with Plaintiff
and explained that Plaintiff had a complete tear of his posterior cruciate
ligament (PCL), a partial tear of the lateral collateral ligament (LCL), and “a
tear of the posterior horn root of the medical meniscus [with] mild extrusion”
and recommended surgical intervention. See N.T. Jury Trial, 2/9/23, at 53,
62-64. After consulting with his agent and team physician, Plaintiff selected
Dr. Bradley, a Pittsburgh-based orthopedic sports medicine surgeon and head
team physician for the Pittsburgh Steelers, to be his surgeon.
Doctor Bradley talked to Dr. DeLuca the day before he operated on
Plaintiff and told Dr. DeLuca that Plaintiff’s PCL was completely torn and that
he was not sure if the meniscal root was torn, but that he would look at the
root during the surgery to see if it needed to be fixed. Id. at 67. In particular,
Dr. Bradley testified that Plaintiff had suffered a partial tear of the medial
meniscus at the posterior horn that did not involve the meniscal root, a grade
II LCL injury, and a completely ruptured PCL. Id., 2/7/23, at 156, 191. See
also id. at 199, id., 2/8/23, at 100 (Doctor Bradley testifying Plaintiff had
Type I “partial tear of the posterior horn of the root of [the] medial meniscus
that was [] a partial tear”).
On November 8, 2017, Dr. Bradley performed a right knee diagnostic
arthroscopy and PCL reconstruction on Plaintiff’s right knee, reserving the
decision as to whether the posterior lateral corner and the LCL had to be
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repaired until Plaintiff was under anesthesia. 6 Id., 2/7/23, at 192-93. Doctor
Bradley specifically testified, after probing the area during surgery, the Type
I partial root tear with which he had previously diagnosed Plaintiff did not
require surgical intervention because it was a “stable tear.” Id., 2/8/23, at
101-03; id., 2/7/23, at 200-01 (Doctor Bradley testifying Plaintiff’s root was
“totally intact” during November 2017 surgery).
Following surgery, Dr. Bradley ordered a course of physical therapy and
rehabilitation for Plaintiff to take place in Philadelphia with ROA. See id. at
103 (Doctor Bradley testifying he provided overview of rehab program for
Plaintiff to trainers who would then implement day-to-day protocol). Initially,
Plaintiff’s rehabilitative activities included muscle-strengthening exercises
and, six weeks post-surgery, using a stationary bike. By January 2018,
Plaintiff was walking unaided and putting his full body weight onto his knee.
In conjunction with Dr. Bradley’s direction, ROA Doctors Peter DeLuca,
Christopher Dodson,7 Paul Marchetto, and Matthew Pepe8 implemented and
oversaw Plaintiff’s rehabilitation from November 2017 through December
2018. See Deposition of James P. Bradley, M.D., 6/2/21, at 49 (“[I]t is a joint
6 Doctor Bradley told Plaintiff he would assess whether he needed to fix his
LCL during the surgery. See N.T. Jury Trial, 2/3/23, at 32.
7 Plaintiff originally named Drs. DeLuca and Dodson as individual Defendants,
but withdrew them from the lawsuit shortly after filing the complaint.
8 All four doctors practiced at the Rothman Institute in 2017-2018. See N.T. Jury Trial, 2/9/23, at 169.
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decision [among the ROA doctors and Philadelphia Eagles therapists/staff] and
me when we should progress.”). Doctor DeLuca testified that he “took care
of the [team’s] orthopedic injuries [and] made the final decisions when it came
to orthopedic injuries.” N.T. Jury Trial, 2/9/23, at 54. Specifically, Dr. DeLuca
testified that his day-to-day duties included evaluating injuries, reviewing
MRIs, and making decisions regarding whether injured players could return to
play. Id. at 55-56.
Doctor Bradley reported back to Dr. DeLuca, post-surgery, that the
meniscal root was completely stable and told Dr. DeLuca “specifically . . . not
to examine [Plaintiff’s] knee [a]nd [that he didn’t] want [him] or any of [his]
partners or any athletic trainer pulling on . . . the new PCL[.]” Id. at 68. In
February 2018, Dr. DeLuca looked at Plaintiff’s range of motion, but did not
test his PCL due to Dr. Bradley’s prior instructions. Id. at 72.
Doctor Bradley examined Plaintiff in March 2018 and noted that
Plaintiff’s reconstructed PCL was intact and that his MCL, LCL, and ligaments
were healthy and stable. See N.T. Jury Trial, 2/3/23, at 45-46 (Plaintiff
testifying Dr. Bradley told him “[h]e’s doing quite well[, that [the] PCL repair]
was tight, it looked good and he was happy with it); but see id. at 45 (Plaintiff
testifying he “just wasn’t quite feeling quite right[, he] was kind of getting
swelling in that time and it was kind of concerning to [him].”); id. at 51 (“It
was just swelling, like pinching, kind of [a] catching feeling in my knee.”). Dr.
Bradley “significantly increased” Plaintiff’s activity level, id. at 47-49, and
planned to see him again in two months. Plaintiff testified that his right knee
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“typically improv[ed]” after he took time off from exercising and strength-
training. Id. at 50. Doctor DeLuca told Plaintiff that discomfort was normal
and that he should “push through the discomfort.” Id. at 51-52. Around April
11, 2018, Plaintiff reported that he was “feeling great” after running at 10
MPH on 65% of his body weight, “but still ha[d] some pinching.” Id. at 53.
On May 1, 2018, Plaintiff was unable to complete a lower body lift as part of
his rehabilitative workout due to knee tightness, soreness, and fatigue. Id.
at 56.
On May 10, 2018, while warming up in the weight room before a
workout, Plaintiff twisted his knee and immediately felt “a jolt . . . in [his]
knee and [a] pinching or catching [feeling.]” Id. at 59. Five days later, Dr.
DeLuca ordered an MRI that showed “a little more extrusion of the meniscus[,]
. . . no change in the [root] tear[,] a little more damage to the cartilage[,]
and a [] bone bruise[.]” Id. at 79. Doctor Bradley prepared a diagnostic
report of the MRI result, noting that Plaintiff has a posterior root tear,
progressing arthritis, but that his graft looks “fine.” Id. at 62-63 (emphasis
added). Doctor Bradley’s overall assessment noted, in part, that Plaintiff had
“[p]rogressive medial compartment arthrosis [with] a root tear and
meniscus is extruding and a PCL that is still healing.” MRI Report of Dr.
James P. Bradley, 5/15/18, at 10 (emphasis added). Doctor Bradley did not
tell Plaintiff that the extrusion had gotten worse since his surgery, “mention
anything at all about the meniscus extruding, [] discuss the meniscus root
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tear[, or] discuss the fact that [he] may need a surgery to repair [his]
meniscus.” N.T. Jury Trial, 2/3/23, at 63-64.
After examining Plaintiff and consulting with Dr. DeLuca, Dr. Bradley
opined that Plaintiff’s arthritis was progressing in his knee and ordered a series
of platelet-rich plasma (PRP) and Euflexxa injections to decrease
inflammation. Id., 2/8/23, at 117, 119-120, 124. Doctor Bradley testified
that after shutting Plaintiff’s rehabilitation down for a few months, he advised
Plaintiff to “start to run [] on dry land [to] get him ready . . . to progress
through camps and get him ready for the preseason.” See id. at 122; see
also MRI Report of Dr. James P. Bradley, 5/15/18, at 10.
On May 29, 2018, Plaintiff met with Dr. DeLuca, who had been
overseeing his rehabilitation. Doctor DeLuca physically examined Plaintiff and
administered another series of Euflexxa and PCP injections. N.T. Jury Trial,
2/3/23, at 65-66. Doctor DeLuca did not discuss Plaintiff’s torn extruded
meniscus with Plaintiff and continued to carry out Dr. Bradley’s protocol. Id.
at 67. Doctor DeLuca testified that, even when one of his players is operated
on by a surgeon outside the organization, you don’t “abandon the player[, but
you] butt in” if there is a problem. Id. at 69. Doctor DeLuca conducted a
posterior exam of Plaintiff’s knee to test the PCL—the first physical
examination Dr. DeLuca had done of Plaintiff’s knee since the November 2017
surgery—and “got concerned that it was loose” and also looked like the
meniscus had extruded more. Id. at 80.
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Doctor DeLuca testified that he was surprised Plaintiff’s meniscus was
not repaired during the initial surgery in November 2017 because he thought
the root was torn; but, after reviewing the November 2017 intraoperative
photograph prior to trial, Dr. DeLuca agreed with Dr. Bradley that Plaintiff’s
meniscal root was not completely torn out of the bone and that it was stable.
Id. at 107, 114-15. On recross-examination, however, Dr. DeLuca confirmed
that: Plaintiff’s pre-operative October 2017 MRI showed he had a 4 mm
extrusion; Plaintiff’s May 2018 MRI showed a 6 mm extrusion; and Plaintiff’s
October 2018 MRI showed a 6 mm plus extrusion. Id., 2/9/24, at 120-21.
On June 4, 2018, Plaintiff met with ROA’s Dr. Dodson, who assumed the
role of Philadelphia Eagles head orthopedic surgeon in June 2018. Id. at 131-
32. Doctor Dodson administered Plaintiff’s third series of anti-inflammatory
Euflexxa injections and performed a PRP procedure on him. Id. at 138-39.
In addition, Dr. Dodson ordered Plaintiff to wear an unloader brace to alleviate
pain. Id. at 140-44. At the time, Dr. Dodson knew that Plaintiff had a
meniscal root tear that Dr. Bradley had not repaired, but testified that he later
confirmed with Dr. Bradley that the root tear did not have to be repaired
because it was stable. Id. at 141, 147; id., 2/3/23, at 176.
During cross-examination of Dr. Dodson, Plaintiff’s counsel called into
question discrepancies between Dr. Dodson’s transcribed patient notes and
his Eagles Training Room Notes concerning Plaintiff, dated June 4, 2018 and
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July 20, 2018, respectively.9 See N.T. Jury Trial, 2/9/23, at 171-184. Doctor
Dodson testified that the Rothman Institute keeps a copy of his “draft notes”
after he sees a patient and then “there [is] a separate set of notes at the
Eagles training facility” that incorporate any changes he makes on the draft
versions. Id. at 173. See also id. at 174 (Doctor Dodson testifying he is the
only ROA doctor who “makes additions to [his] notes and [then] send[s] it
off”). Doctor Dodson acknowledged that the confirmation codes on both sets
of the training room notes are identical, signifying it is “[o]ne note” and not a
separate note. Id. at 154. Due to the discrepancies, Plaintiff moved for an
instruction regarding alteration of medical records, which the court gave to
the jury. See N.T. Jury Trial, 2/13/23, at 24-25; see also 40 P.S. §
1301.511(c);10 Pa.S.S.J.I, (Civ.) 14.40. ____________________________________________
9 See Doctor Christopher Dodson Dictated Note (CCD.ram/vij/conf.#116762790), 6/4/18 (“[Plaintiff] told me he had a previous medial meniscus root repair at the time of surgery that was not repaired[,] but simply debrided.”) (emphasis added); but see Eagles Training Room Final Note (CCD.ram/vij/conf.#116762790), 6/4/18 (indicating post-PCL reconstruction, Plaintiff had “subtle twisting injury and had increasing pain on the inside of his knee [and] had a known root tear of his medial meniscus at the time of the surgery which is not addressed”) (emphasis added). See also Doctor Christopher Dodson Dictated Note (CCD/ram/vij/conf.#117341448), 7/20/18 (“[Plaintiff’s] meniscus extrusion is stable, but he has significant interval improvement of the subchondral bone marrow edema in the medial compartment.”); Eagles training Room Final Note (CCD/ram/vij/conf.#117341448), 7/20/18 ([“Plaintiff’s] meniscus extrusion is still present but stable. He has significant interval improvement of the subchondral bone marrow edema in the medial compartment.”) (emphasis added). 10 Section 511(c) of MCARE states:
(Footnote Continued Next Page)
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Plaintiff testified that neither Dr. DeLuca nor Dr. Dodson ever considered
or offered him the option of having his torn, extruded meniscus repaired, N.T.
Jury Trial, 2/3/23, at 70, and that Dr. Dodson diagnosed him as having a
“bone bruise,” and decided to “shut [Plaintiff] down” for a little over one
month. Id. at 71. Plaintiff did not run or perform any rehabilitative activities
so that the knee could heal, rest, and recover. Id. at 75.
On July 20, 2018, at Dr. Dodson’s direction, Plaintiff underwent another
MRI to see if the alleged bone bruise was healing. Id. at 82. Doctor Dodson
met with Plaintiff and told him that the MRI showed that the bone bruise was
healing and that he was “going to continue to have [Plaintiff] move forward”
with rehabilitation. Id. at 83. Doctor Dodson did not mention the extruded
meniscus or recommend surgery to repair the meniscus. Id. Plaintiff resumed
his rehabilitation and, on August 8, 2018, saw Dr. Bradley 11 who prescribed
running on dry land. Id. Following a physical examination, Dr. Bradley told
Plaintiff that his reconstructed PCL “looked great[,] . . . was solid [and that
he] was happy with it.” Id. at 86. Plaintiff continued to complain of knee pain ____________________________________________
Alteration of records--in any medical professional liability action in which the claimant proves by a preponderance of the evidence that there has been an intentional alteration or destruction of medical records, the court in its discretion may instruct the jury to consider whether such intentional alteration or destruction constitutes an adverse inference.
40 P.S. § 1303.511(c). 11 Plaintiff testified that Dr. Dodson and “some other people” were also at his
appointment with Dr. Bradley. Id. at 84.
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to Dr. Bradley who told him that the pain was from the nerve endings in his
knee joint, that he had to continue to use the knee, and that “those things will
numb off and you’ll be in less pain, you’ll get over it.” Id. at 88.
In October 2018, Plaintiff met with ROA’s Dr. Pepe, concerned that he
was unable to complete field workouts and “seeking other doctors[’ advice]
trying to get answers on what was happening and what [he] was feeling.” Id.
at 93. Plaintiff visited Dr. Dodson again on October 12, 2018, due to his leg
“locking [in a] straight [position].” Id. at 94-95. Doctor Dodson ordered
another MRI which, according to Dr. Dodson, showed that the bone bruise was
back and that his cartilage had significantly degenerated. Doctor Dodson
recommended Plaintiff “shut down” all rehabilitative activities for another six
to eight weeks to let the bruise heal. Id. at 95; id. at 2/9/23, at 170.
Getting frustrated with his post-surgical lack of progress, in early
December 2018 Plaintiff decided to meet with Dr. Robert LaPrade, a Colorado
orthopedic surgeon who had been recommended as a potential surgeon for
Plaintiff’s initial surgery. Doctor LaPrade told Plaintiff that the reconstruction
of his PCL had “failed,” that his “knee was destroyed[, his] career was over at
that point,” and that he needed surgery immediately to fix his rapidly
deteriorating cartilage. Id. at 86, 97-98.
In December 2018, Dr. LaPrade operated on Plaintiff, fixing his meniscus
by performing an osteotomy, a procedure where a surgeon “medically
break[s] your bone and [] shift[s] it to . . . take the pressure off the inside of
your knee and transfer it to the outside of your knee[.]” Id. at 99. Plaintiff
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rehabbed for six months and, in July 2019, Dr. LaPrade performed another
surgery, this time re-stabilizing Plaintiff’s right knee by completing a “revision
double bundle PCL reconstruction with Achilles tendon.” See Report of
Matthew Lawrence Jiminez, M.D, 9/6/21, at 2. Plaintiff testified that, to this
day, he still has daily pain in his knee and that “[t]he more [he does] on it,
the more it hurts.” Id. at 104.
On November 5, 2019, Plaintiff filed a professional liability action against
Defendants Bradley, Burke & Bradley Orthopedics (B&B), and ROA. Plaintiff
alleged that “[o]n or about May 10, 2018, an MRI of Plaintiff’s right knee
revealed . . . a persistent partial tear at the posterior root of the medial
meniscus and meniscus extrusion,” Plaintiff’s Complaint, 11/5/19, at ¶ 18, and
that Dr. Bradley and the ROA doctors should not have advanced Plaintiff’s
activity, but should have treated the knee “with an additional surgical repair.”
Id. at ¶¶ 19-22. Plaintiff claims that, due to Defendants ignoring Plaintiff’s
severe root tear without surgical intervention, his knee condition worsened
and “hastened and contributed to the end of Plaintiff’s professional football
career.” Id. at ¶ 25.
With regard to ROA, the complaint alleged that ROA was negligent
strictly under a theory of agency.12 See id. at ¶ 36 (“At all relevant times,
12 Appellees admit that their counsel misspoke when he stated at trial that “[t]here’s no vicarious claim here. This is a direct claim against Rothman.” In fact, the entirety of the trial against ROA proceeded solely on the theory of vicarious liability and the jury was instructed on that theory as well. See N.T. (Footnote Continued Next Page)
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Rothman, by and through its employees servants and/or agents (actual,
ostensible[,] or otherwise), had a duty to possess and apply the knowledge
and to use the skill and care ordinarily used by reasonably careful orthopedic
surgeon[s] and to be free from negligence.”); see also id. at ¶ 7 (“Each and
every Defendant is vicariously liable for the acts and omissions of its
employees, servants[,] and/or agents[,] actual, ostensible[,] or otherwise,
each of whom was acting within the course and scope of the employment
relationship.”).
On the evening before jury selection, ROA filed an amended witness list
to include Nicole Coleman, ROA’s vice-president of compliance and risk
management. ROA intended to have Coleman testify regarding ROA’s
document management procedures in an effort to rebut Plaintiff’s counsel’s
suggestion on cross-examination that ROA physician, Dr. Dodson, had altered
Plaintiff’s medical records. See supra at 8-9; supra at n.8. Plaintiff filed a
motion to strike the late witness disclosure. The trial court entered an order
on January 31, 2023, granting Plaintiff’s motion to strike and precluding
Jury Trial, 2/13/23, at 20 (“You must decide whether Dr. Bradley and/or the Rothman physicians were negligent. If you decide that the Defendants were negligent, then you must decide whether the Defendants’ negligence was a factual cause of Mr. Maragos’s injuries. If you so decide, you must decide the amount of damages that the Plaintiff sustained as a result of Defendants’ negligence”). Moreover, the parties stipulated as to the agency theory with regard to the ROA doctors as it applied to Defendant ROA. See N.T. Jury Trial, 2/9/23, at 212.
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Coleman from testifying at trial. See Order, 1/31/23. See also Pa.R.C.P.
212.2.13
A jury trial was held over two weeks from the end of January 2022
through mid-February 2023. Plaintiff’s expert in orthopedic surgery, Matthew
Lawrence Jimenez, M.D., testified that as a result of Plaintiff’s collision during
the October 2017 Panther’s game, Plaintiff suffered a root tear of the medial
meniscus14 resulting in meniscal extrusion in his right knee. 15 See N.T. Jury
Trial, Vol. I, 1/30/23, at 70; see also Report of Matthew Lawrence Jiminez,
M.D., 9/6/21, at 1 (“[A]n MRI to [Plaintiff’s] right knee [] revealed a meniscal ____________________________________________
13 Rule 212.2(c) provides:
Where the trial judge determines that unfair prejudice shall occur as a result of the non-compliance with subdivisions (a) and (b), the trial court shall grant appropriate relief which may include[:]
(1) the preclusion or limitation of the testimony of
(i) any witness whose identity is not disclosed in the pre-trial statement[.]
Pa.R.C.P. 212.2(c).
14 A meniscus root tear is a tear at the junction of the knee’s meniscus and
bone. See https://www.mayoclinic.org/medical-professionals/orthopedic- surgery/news/advances-in-treatment-of-meniscus-root-tears/mac-20558318 (last visited on 8/19/24).
15 Doctor Jiminez compared Plaintiff’s October 13, 2017 MRI with the results
of an MRI taken in September 2015, and noted that the 2015 MRI identified “a normal-appearing, intact meniscus with no abnormality, variant[,] or anomaly.” Report of Matthew Lawrence Jiminez, M.D., 9/6/21, at 2. Moreover, subsequent MRIs of Plaintiff’s right knee, taken in 10/2017, 5/2018, 7/2018, and 10/2018, all showed a tear to the posterior root of the medial meniscus with extrusion. Id. at 3.
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root tear with extrusion of the medial meniscus); id. at 2. Doctor Jiminez
opined that the meniscal root was unstable because there was a 4mm
extrusion and that an extrusion gets progressively worse as cartilage wears
away over time. N.T. Jury Trial, Vol. I, 1/30/23, at 70 (“His PCL is repaired
and remains stable nearly the entire rehab portion . . . [b]ut we saw right
away from the first MRI the meniscus was extruded from day one, four
millimeters[,] and continued to extrude over several months.”). Moreover,
because of the instability due to the torn root, the meniscus “did not stay
where it was supposed to be [and, thus, caused the] cartilage [to] w[ea]r
out.” Id. at 71; id. at 72. Further, Dr. Jimenez opined that, to a reasonable
degree of medical certainty, Dr. Bradley deviated from the professional
standard of care by not repairing, in November 2017, Plaintiff’s torn medical
meniscus root, and that the ROA doctors also breached that standard because
they had an obligation as “orthopaedic surgeons caring for [Plaintiff to] talk to
a surgeon [and] debate the care[,] look at the images, document that
debate[,] and make a solid decision.” See id. at 73-74, 77; see also id. at
97 (Doctor Jimenez testifying, “By seeing extrusion[—]you know instability[—
] . . . it is going to likely continue to extrude so the mandate is to, first, if you
are not going to fix it with that MRI and that exam and that history, you [have]
to spend a lot of time documenting why.”); id. at 98 (part of documenting
issue is “testing the stability of the root aggressively to support” the decision
not to repair root). Finally, Dr. Jimenez testified that without repairing a
“complex” root tear like Plaintiff’s that involved “instability[,] it is not just
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going to heal itself[,] you need to get stability back [and] have it firmly
attached [so that it can] he[al].” Id. at 100. Doctor Jiminez’s expert report
also noted that several radiologists16 confirmed that Plaintiff suffered a tear at
the posterior root of his right knee’s medial meniscus with extrusion and that
the size of the tear increased over time to approximately 6mm due to
instability. See Report of Matthew Lawrence Jiminez, M.D., 9/6/21, at 3-4. 17
Following trial, the jury returned a verdict in favor of Plaintiff in the
amount of $43.5 million, apportioning liability at 67% for Dr. Bradley and 33% ____________________________________________
16 Radiologist Carolyn Boltin, M.D., Plaintiff’s expert, testified that, to a reasonable degree of medical certainty, Plaintiff’s October 2017 post-injury MRI showed that he suffered an extrusion of the medial meniscus from his incident, which included a complex root tear, and that over time, the degree of extrusion increased from mild to severe and that ultimately resulted in thinning and loss of cartilage. See N.T. Jury Trial, 2/1/23, at 40-54.
17 Doctor Jiminez’ report noted that, in coming to his professional opinion on
the matter, he had “examined [Plaintiff], reviewed the medical records, radiology and corresponding reports, intraoperative images and video (where available), deposition transcripts[,] and [] other materials.” See Matthew Lawrence Jiminez, M.D., Report, 9/6/21, at 1. Doctor Jiminez ultimately concluded that Dr. Bradley and the ROA doctors were “grossly negligent” and breached the standard of care where they failed to: “inform [Plaintiff] that he suffered the meniscal root tear[;] offer to scope his knee to investigate further[; and inform him] of the potential risks associated with training, rehabilitation[,] and running on a knee with a known root tear with meniscal extrusion.” Id. at 9. Doctor Jiminez opined that the standard of care required Dr. Bradley and the ROA doctors “to restrict [Plaintiff’s] rehabilitation to range-of-motion exercises and light activity [and] refrain from ordering and implementing rehabilitation involving significant weightbearing or loading exercises until the root tear . . . was addressed.” Id. at 6. Doctor Jiminez opined that Defendants’ breach caused Plaintiff to suffer “unnecessary and unreasonable pain[, led to] his inability to play NFL football, [and] w[as] a substantial factor in [Plaintiff] needing [two] future total knee replacement[s].” Id. at 9-10.
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for ROA. On February 23, 2023, ROA filed a post-trial motion seeking a
judgment notwithstanding the verdict (JNOV), a new trial on all issues, a new
trial on damages, and remittitur of the jury’s verdict. The trial court denied
ROA’s post-trial motions.
ROA filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. ROA presents the
following issues for our consideration:
(1) Whether the trial court erred in denying Defendant ROA’s request for JNOV, where Plaintiff only sued ROA for vicarious liability[,] but failed to prove that any agent or employee of Defendant [ROA] breached an objective standard of care that caused Plaintiff’s harm?
(2) Whether the trial court erred and/or abused its discretion when it gave the jury a spoliation/adverse inference instruction when there was no evidence that any document had been spoliated or improperly altered, Plaintiff failed to satisfy the strict standard for a spoliation/alteration instruction, and Defendant ROA suffered undue prejudice because the instruction improperly invited and permitted the jury to find, without any basis, that ROA spoliated evidence?[18]
(3) Whether the trial court abused its discretion in denying Defendant [ROA’s] new trial request after the trial court improperly, and to Defendant [ROA’s] great prejudice, precluded a defense witness from testifying in a manner that would have rebutted accusations that Defendant [ROA] had improperly “altered” documents and engaged in a “cover- up,” where the proposed testimony would have been
18 An appellate court “review[s a] trial court’s jury instructions for an abuse of
discretion or legal error controlling the outcome of the case.” Cragle v. O’Brien, 225 A.3d 182, 190 (Pa. Super. 2019) (citations omitted).
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succinct and circumscribed and Plaintiff failed to prove any undue prejudice from the admission of the testimony? [19]
(4) Whether the trial court erred and/or abused its discretion in denying Defendant ROA’s motion for [a] new trial, a new trial on damages, or at least a substantial remittitur, where the jury’s determination of liability and causation was against the overwhelming weight of the evidence, and the $43,500,000[.00] damages award was excessive, unfair[,] and likely driven by Plaintiff’s incendiary claim of a “cover up”?[20] ____________________________________________
19 In determining whether to preclude the testimony of a witness who has not
been identified in a pre-trial statement, our courts have considered:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith [or] willfulness in failing to comply with the court’s order.
Feingold v. S.E. Pennsylvania Transp. Auth., 517 A.2d 1270, 1273 (Pa. 1986) (citations omitted).
20 In Tindall v. Friedman, 970 A.2d 1159 (Pa. Super. 2009), our Court stated:
Our standard of review in reversing an order denying a remittitur by a trial court is confined to determining whether there was an abuse of discretion or an error of law committed in such denial. Smalls v. Pittsburgh-Corning Corp., [] 843 A.2d 410, 414 (Pa. Super. 2004).
The grant or refusal of a new trial because of the excessiveness of the verdict is within the discretion of the trial court. Hall v. George, [] 170 A.2d 367 ([Pa.] 1961). This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Kravinsky v. Glover, [] 396 A.2d 1349 [(Pa. Super.] 1979). We begin with the premise that large verdicts are not necessarily excessive verdicts. Each case is unique and dependent on its own special circumstances and a court should (Footnote Continued Next Page)
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Appellant’s Brief, at 5-6.
In Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa.
2012), our Supreme Court discussed the concept of vicarious liability in the
context of a medical malpractice action:
To prove negligence, a plaintiff may proceed against a defendant on theories of direct and vicarious liability, asserted either concomitantly or alternately. Liability for negligent injury is direct when the plaintiff seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing directly to the plaintiff. By comparison, vicarious liability is a policy-based allocation of risk. Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it. Once the requisite relationship (i.e., employment, agency) is demonstrated, the innocent victim has recourse against the principal, even if the ultimately responsible agent is unavailable or lacks the ability to pay. Mamalis v. Atlas Van Lines, Inc., [] 560 A.2d 1380, 1383 (Pa. 1989); accord Crowell [v. City of Philadelphia], 613 A.2d [1178,] 1182 [(Pa. 1992)] (vicarious liability is policy response to “specific need” of how to fully compensate victim).
Where a corporation is concerned, the ready distinction between direct and vicarious liability is somewhat obscured because we accept the general premise that the corporation acts through its officers, employees, and other agents. See Tayar v. Camelback Ski Corp., Inc., [] 47 A.3d 1190, 1196 (Pa. 2012). The corporation, as principal, assumes the risk of individual agents’ negligence under the theory of vicarious liability. See, e.g., Iandiorio v. Kriss & Senko Enters., Inc., [] 517 A.2d 530 (Pa. 1986); Aiello v. Ed Saxe Real Estate, Inc., [] 499 A.2d 282 (Pa. ____________________________________________
apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. Mineo v. Tancini, [] 502 A.2d 1300 ([Pa. Super.] 1986).
Id. at 1176-77 (citations and ellipsis omitted).
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1985). In this scenario, the corporation’s liability is derivative of the agents’ breach of their duties of care to the plaintiff. But, this Court has also recognized that a corporation may also owe duties of care directly to a plaintiff, separate from those of its individual agents, such as duties to maintain safe facilities [] and to hire and oversee competent staff. See, e.g., Thompson [v. Nason Hospital, 591 A.2d 703 (Pa. 1991)] (corporate hospital owed patient non-delegable duty of care to enforce consultation and patient monitoring policies); Gilbert v. Korvette, Inc., [] 327 A.2d 94, 102 (Pa. 1974) (corporation owed customer non- delegable duty of care to maintain premises); Dempsey v. Walso Bureau, Inc., [] 246 A.2d 418 (Pa. 1968) (corporation owed employee duty of reasonable care in hiring other employees); accord Atcovitz v. Gulph Mills Tennis Club, Inc., [] 812 A.2d 1218 (Pa. 2002) (if duty exists, corporation may be held directly liable for negligence). Accordingly, as a general proposition, the recognition that a corporation acts through its agents has not been held to be a fatal impediment to ha[i]ling a corporation into court on direct liability tort claims. Accord Mamalis, 560 A.2d at 1383 (“termination of the claim against the agent extinguishes the derivative [vicarious liability] claim against the principal” but not separate claim based on principal’s “affirmative act or failure to act when required to do so”).
Scampone, 57 A.3d at 597-98 (some internal citations and quotation marks
omitted).21
After a comprehensive review of the parties’ briefs, certified record on
appeal, and the relevant case law and statutes, we affirm on the basis of Judge
Cunningham’s opinion. See Trial Court Opinion, 12/19/23, at 7 (court
properly denied JNOV where Dr. Jiminez testified, to reasonable degree of ____________________________________________
21 To the extent that ROA claims, based on the wording of the verdict slip, Plaintiff failed to obtain a finding that any ROA agent or employee was negligent because it only listed Rothman and not the individual Rothman doctors, we find that this claim has been waived where defense counsel agreed to the wording of the verdict slip. See N.T. Jury Trial, 2/9/23, at 208 (“[THE COURT:] You’re okay with the Plaintiff’s verdict slip? [DEFENSE COUNSEL:] Yes.”).
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medical certainty, Plaintiff’s meniscus tear should have been surgically
repaired in initial surgery, intense exercise on unrepaired tear led to further
damage to meniscus and entire knee, no rehabilitation should have occurred
until meniscus repaired, ROA doctors who supervised and continued to
encourage rehabilitation on Plaintiff’s knee over complaints of pain and
discomfort violated standard of care); id. at 9 (Medical Care Availability and
Reduction of Error (MCARE) alteration of records instruction properly given
where testimony showed substantive and material differences between Dr.
Dodson’s draft notes and transcribed Eagles notes); id. at 9 (Coleman
properly precluded from testifying where non-expert witness identified on eve
of jury selection, Plaintiff had no time to depose Coleman, and no reason why
ROA could not have identified witness sooner); id. at 10-11 (verdict not
against weight of evidence where jury chose to believe Dr. Jiminez’s testimony
that ROA defendants, as agents, increased risk of harm to Plaintiff by
continuing to rehabilitate him); and id. at 11 (new trial not warranted on basis
of excessive verdict where record evidence established Plaintiff was highly
esteemed and paid NFL player projected to secure future contract and non-
economic damages difficult to quantify). We instruct the parties to attach a
copy of Judge Cunningham’s decision in the event of further proceedings in
the matter.
Judgment affirmed.
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Date: 8/30/2024
- 22 - Circulated 08/20/2024 09:50 AM