Newsome, L. v. Fobia, J.

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2024
• Docket: 1856 EDA 2023
• Status: Unpublished

Opinion

J-A20027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LYNEA NEWSOME, ADMINISTRATRIX : IN THE SUPERIOR COURT OF OF THE ESTATE OF IRA KING, : PENNSYLVANIA DECEASED : : Appellant : : : v. : : No. 1856 EDA 2023 : JOHN FOBIA, M.D., KARTIK : KATRAGADDA, M.D., FATIMA BABAR, : M.D., JEFFREY MARCOE, M.D., KEVIN : FLEMING, M.D., AMIT KAPOOR, M.D., : JAY HUBSHER, M.D., NORRITON : PHYSICIANS SERVICES, INC. D/B/A : MERCY SURGICAL ASSOCIATES, : MERCY PHILADELPHIA HOSPITAL, : MERCY CATHOLIC MEDICAL CENTER : OF SOUTHEASTERN PENNSYLVANIA : D/B/A MERCY PHILADELPHIA : HOSPITAL, MERCY HEALTH SYSTEM, : AND TRINITY HEALTH MID-ATLANTIC :

Appeal from the Order Entered October 19, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200200149

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.

JUDGMENT ORDER BY PANELLA, P.J.E.: FILED SEPTEMBER 19, 2024

The issue in this case is whether the trial court correctly and

appropriately entered summary judgment in favor of Appellees by way of its

October 19, 2022 Order, due to the lack of an expert report addressing

professional negligence. The trial court has aptly reviewed Appellant’s J-A20027-24

contention in its March 5, 2024 Opinion. The pertinent procedural history was

accurately summarized by the trial court as follows:

Plaintiff Lynea Newsome, individually and in her capacity as the Administratrix for the Estate of Ira King, commenced this medical malpractice action on February 3, 2020 by filing a Writ of Summons. See Trial docket (“Dkt.”) at 2/3/20. Plaintiff’s Amended Complaint, filed on June 22, 2020, alleges the defendants’ failure to diagnose and treat a gastrointestinal bleed caused decedent Ira King’s premature death. Amended Complaint at ¶¶ 57-135, Dkt at 6/22/20.

On April 1, 2022, the [trial court] issued a Revised Case Management Order requiring the plaintiff to produce expert reports by July 4, 2020 and required all pre-trial motions to be filed by August 1, 2020. Dkt. at 4/1/22. Although Plaintiff produced expert[] reports addressing the negligence of some defendants, Plaintiff did not produce an expert report addressing the deficiencies in care provided by nephrologists Jay W. Hubsher, M.D. and Amit Kapoor, M.D. Accordingly, on August 1, 2022, Dr. Hubsher and Dr. Kapoor filed a motion for summary judgment arguing Plaintiff could not establish a prima facie case against them without expert testimony. See Motion for Summary Judgment of Defendants Jay W. Hubsher, M.D. and Amit Kapoor, M.D., Dkt. at 8/1/22, Control No. 22080166. Plaintiff filed a response in opposition on August 31 st which, inter alia, attached the expert report of nephrologist Stuart Friedman, M.D. who opined the care provided by Dr. Hubsher and Dr. Kapoor was deficient. See Plaintiff’s Opposition to the Motion for Summary Judgment of Defendants Jay W. Hubsher, M.D. and Amit Kapoor, M.D., Dkt. at 8/31/22, Control No. 22080166.

By Order docketed October 20, 2022, [the trial court] granted summary judgment in favor of Dr. Hubsher and Dr. Kapoor based on Plaintiff’s failure to disclose Dr. Friedman’s expert report by the deadline set forth in [the trial court’s] Revised Case Management Order. Dkt. at 10/20/22, Control No. 22080166. Plaintiff filed a Motion for Reconsideration, Dkt. at 10/21/22, which this Court denied. Dkt. at 10/21/22. On July 21, 2023, the Superior Court granted Plaintiff’s petition for a permissive interlocutory appeal.

Trial Court Opinion, 3/5/24, at 1-2.

-2- J-A20027-24

In its Opinion filed on March 5, 2024, pursuant to Pa.R.A.P. 1925(a),

the trial court researched and authored a detailed discussion of the appellate

caselaw relating to dismissal of lawsuits due to the late filing of expert reports.

We repeat the substantive and well-written legal analysis applied by the trial

court:

In the case sub judice, Plaintiff filed Dr. Friedman’s expert report as part of its response to the motion for summary judgment filed by Dr. Hubsher and Dr. Kapoor; therefore, this court must apply the [Gerrow v. John Royle & Sons, 813 A.2d 778 (Pa. 2002)] line of cases rather than [Wolloch v. Aiken, 815 A.2d 594 (Pa. 2002)]. In applying the Gerrow line of cases, this court must determine whether Dr. Hubsher and Dr. Kapoor have been prejudiced by the Plaintiff’s late disclosure of Dr. Friedman’s report. Dr. Friedman’s expert report was not disclosed on the eve of trial, as was the case in [Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 2004)(en banc)]. Furthermore, the appeal of this matter has given Dr. Hubsher and Dr. Kapoor ample time to prepare a rebuttal to Dr. Friedman’s proposed testimony; therefore, any prejudice caused [by] the tardy filing of Dr. Friedman’s report has been neutralized. Dr. Hubsher and Dr. Kapoor have not identified any other prejudice they suffered because of Plaintiff’s late disclosure of Dr. Friedman’s report. Accordingly, it appears that Gerrow and its progeny required this court to consider the untimely disclosure of Dr. Friedman’s expert report and deny summary judgment; this court’s failure to do so was in error.

Trial Court Opinion, 3/5/24, at 5 (unnecessary capitalization omitted).

We commend the trial court for its candor in recognizing the error in its

dismissal of the actions against Jay W. Hubsher, M.D. and Amit Kapoor, M.D.

We have reviewed the certified record and the briefs, the relevant law,

and the well-written opinion of the Honorable Kenneth J. Powell, Jr. We have

determined that the trial court’s opinion comprehensively disposes of

-3- J-A20027-24

Appellant’s issue on appeal, with appropriate references to the record, and

without legal error. Therefore, we reverse on this basis. See Trial Court

Opinion, 3/5/24, attached hereto.

Order reversed. Case remanded in accordance with this Judgment

Order.

Date: 9/19/2024

-4- Circulated 09/04/2024 03:01 PM

COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION — CIVIL

LYNEA NEWSOME, individually and FEBRUARY TERM, 2020 as ADMINISTRATRIX of the ESTATE OF IRA KING NO. 149 1856 EDA 2023 V.

JOHN FOBIA, M.D., et al.

a OPINION a)

Kenneth J. Powell, Jr., S. J. March 5, 2024

Plaintiff Lynea Newsome, individually and in her capacity as the Administratrix for the

Estate of Ira King, commenced this medical malpractice action on February 3, 2020 by filing a

Writ of Summons. See Trial Docket ("Dkt.") at 2/3/20. Plaintiffs Amended Complaint, filed on

June 22, 2020, alleges the defendants' failure to diagnose and treat agastrointestinal bleed

caused decedent Ira King's premature death. Amended Complaint at ¶¶ 57-135, Dkt at 6/22/20.

On April 1, 2022, the Honorable Karen Shreeves-Johns issued aRevised Case

Management Order requiring the plaintiff to produce expert reports by July 4, 2022 and required

all pre-trial motions to be filed by August 1, 2022. Dkt. at 4/1/22. Although Plaintiff produced

expert reports addressing the negligence of some defendants, Plaintiff did not produce an expert

report addressing the deficiencies in care provided by nephrologists Jay W. Hubsher, M.D. and

Amit Kapoor, M.D. Accordingly, on August 1, 2022, Dr. Hubsher and Dr. Kapoor filed a

motion for summary judgment arguing Plaintiff could not establish aprima facie case against

them without expert testimony. See Motion for Summary Judgment of Defendants Jay. W.

Hubsher, M.D. and Amit Kapoor, M.D., Dkt. at 8/1/22, Control No. 22080166. Plaintiff filed a

response in opposition on August 31S twhich, inter alia, attached the expert report of nephrologist OPFL6Newsow. In —ally Md As MM, Of The Estate O

IIIIIIIII•IIIINIIIIIIIIN 20020014900186 Stuart Friedman, M.D. who opined the care provided by Dr. Hubsher and Dr. Kapoor was

deficient. See Plaintiff sopposition to the Motion for Summary Judgment of Defendants Jay. W.

Hubsher, M.D. and Amit Kapoor, M.D., Dkt. at 8/31/22, Control No. 22080166.

By Order docketed October 20, 2022, this Court granted summary judgment in favor of

Dr. Hubsher and Dr. Kapoor based on Plaintiff sfailure to disclose Dr. Friedman's expert report

by the deadline set forth in Judge Shreeves-Johns' Revised Case Management Order. Dkt. at

10/20/22, Control No. 22080166. Plaintiff filed aMotion for Reconsideration, Dkt. at 10/21/22,

which this Court denied. Dkt. at 11/21/22. On July 21, 2023, the Superior Court granted

Plaintiff spetition for apermissive interlocutory appeal.

ANALYSIS

"More civil litigation occurs in Philadelphia County than in the remaining counties of

this Commonwealth combined." Gerrow v. John Royle & Sons, 813 A.2d 778, 787 (Pa. 2002)

(Nigro, J., dissenting); see also The First Judicial District Annual Report for 2021 at p. 7,

https://www.courts.phila.gov/pdf/report/2021-First-Judicial-District-Annual-Report.pddf. Due to

the volume of filings, the Philadelphia Court of Common Pleas employs astrict case

management program to reduce judicial gridlock and ensure that cases move through the system

in atimely manner. Id. Before implementing its strict case management program, the

Philadelphia Court of Common Pleas had abacklog of over 28,000 cases and plaintiffs routinely

waited five or six years between the filing of their case and trial. Id. at 787 n.1. Following the

implementation of its case management program, the Philadelphia Court of Common Pleas

cleared its backlog of cases, and the Trial Division - Civil Section is considered "one of the finest

and most successful urban trial courts in the country." National Center for State Courts, Civil

Programs in the Philadelphia Court of Common Pleas — Final Report, 88 (2004); Lisa M. Rau,

2 Judge (Ret.), The Philadelphia Experiment in Civil Case Management — Journey from Disaster to

Model Court, University of Nevada, Reno (2019) https://www.resonatemediation.com/the -

philadelphia-experiment-in-civil-case-management journey-from-disaster-to-model-

court/#endnotes.

In this case, three court orders imposed deadlines for Plaintiff to produce expert reports.

First, the Honorable Arnold L. New issued aCase Management Order which required Plaintiff to

produce any expert reports by February 7, 2022. Dkt. at 7/23/20. Eighteen months later, Judge

Shreeves-Johns granted Plaintiff sunopposed request to extend the deadlines and ordered

Plaintiff to produce any expert reports by May 2, 2022. Dkt. at 12/10/21. Finally, on April 1,

2022, Judge Shreeves-Johns granted arequest to extend the deadlines and ordered Plaintiff to

produce expert reports by July 4, 2022. Dkt. at 4/1/22. Plaintiff failed to comply with this

deadline as it relates to Dr. Hubsher and Dr. Kapoor; instead, Plaintiff did not produce Dr.

Friedman's report until August 31, 2022.

The question then becomes, how should Plaintiff sfailure to abide by the case

management order be addressed? Allowing parties to flout case management orders cannot be

tolerated; doing so would make amockery of court-imposed deadlines while causing the backlog

that plagued the Philadelphia Court of Common Pleas in the 1990s to return. However,

draconian adherence to the case management orders can, at times, create an unjust result.

Twenty-two years ago, our Supreme Court wrestled with this exact issue — how the

Philadelphia Court of Common Pleas should address aparty's noncompliance with its case

management orders — and released two opinions on the same day addressing the topic. In

Wolloch v. Aiken, the plaintiff failed to produce an expert report by the deadline set by the trial

court. Wolloch, 815 A.2d 594, 595 (Pa. 2002). After the deadline passed, the defendants filed motions for summary judgment arguing the plaintiff could not make out aprima facie case of

malpractice without expert testimony. Id. The plaintiff did not respond to the motions, and the

trial court granted summary judgment in favor of the defendants. Id. The plaintiff then produced

expert reports and sought reconsideration of the entry of summary judgment. Id. The trial court,

citing the plaintiff's noncompliance with the case management deadlines, denied reconsideration.

Id. The Supreme Court affirmed, observing that at the time the trial court decided the motion for

summary judgment, the plaintiff could not establish aprima facie case for malpractice because

there was no expert testimony. Id. at 598.

In Gerrow, the plaintiff failed to produce an expert report by the deadline set by the case

management order, and the defendant filed asummary judgment motion citing the absence of

expert reports. Gerrow, 813 A.2d at 780. Unlike the plaintiff in Wolloch, the Gerrow plaintiff

filed atimely response to the motion for summary judgment and attached an expert report. Id.

The trial court refused to consider the expert report and entered summary judgment in favor of

the defendant. Id. A plurality of the Supreme Court reversed the trial court, reasoning that since

Pa.R.C.P. 1035(b) permits aparty to supplement the record in response to amotion for summary

judgment, the plaintiff's production of expert report was proper even though the timing of the

plaintiff's production violated the case management order. Id. at 781-82.

Following the Supreme Court's decisions in Wolloch and Gerrow, the Superior Court

further refined the analysis. An en Banc panel of the Superior Court adopted the plurality's

reasoning in Gerrow but recognized that trial courts retain the discretion to disregard the late

filing as adiscovery sanction under Pa.R.C.P. 4003.5(b). Kurian ex rel. Kurianv v. Anisman, 851

A.2d 152, 159 (Pa. Super. 2004) ( en banc). Our appellate courts have been clear that atrial court

cannot disregard alate expert report under Rule 4003.5(b) unless the complaining party shows it

4 has been prejudiced in preparing its case for trial as result of the late disclosure. Compare

Kurian, 851 A.2d at 162 (affirming the trial court decision to disregard an untimely expert report

when the party offering the expert report continually violated court ordered deadlines, and

produced the expert report on the day the parties were supposed to go to trial) with Gerrow, 813

A.2d at 780 ( reversing trial court's decision to disregard expert report that was filed sixty days

after the disclosure deadline when the defendant had previously joined in the plaintiffs request

to extend the deadline for disclosure). Any prejudice must be explicit in the record; "the

prejudice may not be assumed." Kurian, 851 A.2d at 159.

In the case sub judice, Plaintiff filed Dr. Friedman's expert report as part of its response

to the motion for summary judgment filed by Dr. Hubsher and Dr. Kapoor; therefore, this court

must apply the Gerrow line of cases rather than Wolloch. In applying the Gerrow line of cases,

this Court must determine whether Dr. Hubsher and Dr. Kapoor have been prejudiced by the

Plaintiff slate disclosure of Dr. Friedman's report. Dr. Friedman's expert report was not

disclosed of the eve of trial, as was the case in Kurian. Furthermore, the appeal of this matter

has given Dr. Hubsher and Dr. Kapoor ample time to prepare arebuttal to Dr. Friedman's

proposed testimony; therefore, any prejudice caused the tardy filing of Dr. Friedman's report has

been neutralized. Dr. Hubsher and Dr. Kapoor have not identified any other prejudice they

suffered because of Plaintiffs late disclosure of Dr. Friedman's report. Accordingly, it appears

that Gerrow and its progeny required this Court to consider the untimely disclosure of Dr.

Friendman's expert report and deny summary judgment; this Court's failure to do so was in

error.

5 WHEREFORE, for the reasons set forth above, this Court respectfully requests the

Superior Court take any action it deems appropriate.

BY THE COURT:

KENNETH J. POWELL, JR., J.