Schaub, R. v. Byron, T., M.D.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2020
• Docket: 735 MDA 2019
• Status: Unpublished

Opinion

J-S25023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT ANDREW SCHAUB : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : THOMAS W. BYRON, M.D. AND : No. 735 MDA 2019 SPORTS MEDICINE BONE AND JOINT :

Appeal from the Judgment Entered April 11, 2019 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2013-07122

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 7, 2020

Appellant, Robert Andrew Schaub (“Schaub”), appeals from the

Judgment entered on April 11, 2019, following a jury verdict in favor of

Appellee, Dr. Thomas Byron (“Dr. Byron”), in this medical malpractice action.

After careful review, we affirm.

In December 2009, Schaub injured his right wrist while playing

basketball. In February 2010, he began treating with Dr. Byron at Sports

Medicine Bone and Joint. Dr. Byron diagnosed Schaub with a right scaphoid

bone fracture and placed Schaub in a long arm cast then, later, a short arm

cast. Dr. Byron discharged Schaub from his care in June 2010.

In Fall 2010, Schaub fractured his left wrist and re-fractured his right

wrist. Schaub returned to Dr. Byron’s care in December 2010 and underwent J-S25023-20

bone-graft surgery on his right wrist. Schaub had several right wrist x-rays,

at Dr. Byron’s request, throughout his course of treatment.

In June 2011, Schaub sought a second opinion from Dr. Randall Culp,

an orthopedic surgeon. Dr. Culp ordered a CAT scan on Schaub’s wrists and

diagnosed Schaub with bilateral scaphoid fractures. Dr. Culp performed

surgery on both of Schaub’s wrists, placing a screw in each scaphoid bone to

promote healing. Schaub continued to experience problems with his right

scaphoid bone.

In August 2016, Dr. Culp performed another bone-graft surgery on

Schaub’s right scaphoid bone. Unfortunately, this surgery did not correct

Schaub’s issues and, in March 2017, Dr. Culp had to perform another surgery.

This time, Dr. Culp removed Schaub’s right scaphoid bone and fused several

of the other bones in Schaub’s wrist together. As a result, Schaub has only

partial movement in his right wrist.

Schaub initiated litigation by filing a Praecipe for Writ of Summons on

June 14, 2013, followed by a Complaint on February 4, 2014. On July 11,

2016, Schaub filed a Motion for Spoliation Sanctions based on Dr. Byron’s

inability to produce copies of most of the x-rays he underwent while in Dr.

Byron’s care. In response, Dr. Byron claimed that a flood in September 2011

destroyed Schaub’s x-rays. On May 4, 2018, the trial court denied Schaub’s

Motion.

-2- J-S25023-20

On October 18, 2018, the trial court held a pretrial conference to rule

on Motions in Limine and pretrial objections. Several of the court’s rulings are

at issue in this appeal.

The court granted Dr. Byron’s Motion in Limine to preclude Schaub from

implying any negative inference about the destroyed x-rays. The court

likewise heard argument on Dr. Byron’s Motion in Limine to prevent Schaub’s

vocational expert, Dr. Jody Doherty, from testifying because Schaub produced

her expert reports to defense counsel only 18 days before trial. As will be

discussed below, Schaub elected to forego Dr. Doherty’s testimony to avoid

continuing trial and, therefore, the court did not rule on this Motion. Finally,

in response to Dr. Byron’s objection, the court ruled that Schaub could not

use a PowerPoint presentation in his opening statement.

The court denied several of Schaub’s Motions in Limine and, therefore,

at trial it permitted: (1) Dr. Culp to testify about Schaub’s tobacco use; (2)

defense expert Dr. Wayne Sebastianelli to testify about Schaub’s vocational

abilities; and (3) counsel for Dr. Byron to utilize images during Dr.

Sebastianelli’s direct examination.

The court conducted jury selection the same day, during which it refused

to strike several jurors for cause despite Schaub urging it to do so.

Trial commenced on October 23, 2018. Relevant to this appeal, the court

ruled in favor of Dr. Byron on several trial objections, precluding Schaub from:

(1) cross-examining Dr. Byron with a letter authored by Schaub’s father about

the necessity and expense of the destroyed x-rays; (2) presenting a portion

-3- J-S25023-20

of Dr. Culp’s deposition testimony1 during which Schaub utilized a

demonstrative animation; and (3) presenting a portion of Dr. Culp’s deposition

testimony during which Schaub asked Dr. Culp standard of care questions.

The court permitted evidence and testimony about Schaub’s tobacco

smoking history and delay in seeking treatment for his Fall 2010 injuries, on

the basis that both issues went to Schaub’s comparative negligence. At the

conclusion of trial, however, the court instructed the jury that it could consider

Schaub’s delay in seeking treatment, but not his smoking history, for

comparative negligence purposes. The court instructed the jury that it was to

consider Schaub’s smoking history only for its impact on his life expectancy.

On October 29, 2018, the jury returned a verdict in favor of Dr. Byron,

finding that he was not negligent in the performance of the care he provided

to Schaub. The jury did not address issues of causation or damages.

On November 8, 2018, Schaub filed a Motion for Post-Trial Relief. On

February 28, 2019, after briefing and oral argument, the trial court denied

Schaub’s Motion. The trial court entered Judgment on April 11, 2019. Schaub

filed a timely Notice of Appeal and both he and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

Schaub raises the following issues on appeal:

1. Whether the trial court erred when it permitted prospective jurors to be "rehabilitated" after they expressed their inability to

____________________________________________

1 The parties elected to depose Dr. Culp before trial and use his deposition in lieu of live testimony at trial, pursuant to Pa.R.C.P. 4020(a)(5).

-4- J-S25023-20

be fair and impartial; and/or when the court denied [Schaub’s] cause challenges to such jurors?

2. Whether the trial court erred in permitting evidence and testimony with respect to [Schaub’s] perceived smoking and erred in its instructions to the jury with respect to this issue?

3. Whether the trial court erred in permitting evidence and testimony with respect to [Schaub’s] perceived delay in treatment and erred in its instructions to the jury with respect to this issue?

4. Whether the trial court erred in its rulings with respect to the testimony of [Schaub’s] treating physician - Randall Culp, M.D., including issues related to [] demonstrative exhibits and issues on the standard of care?

5. Whether the trial court erred when it permitted [Dr. Byron’s] expert, Wayne Sebastianelli, M.D. to testify to areas outside the scope of his expertise and report?

6. Whether the trial court erred when it granted [Dr. Byron’s] Motion in Limine and precluded [Schaub’s] vocational expert from testifying where [Dr. Byron] failed to show prejudice?

7. Whether the trial court erred in precluding [Schaub] from presenting a PowerPoint Presentation during his opening statement?

8. Whether the trial court erred when it denied [Schaub] the opportunity to cross-examine Dr. Byron and/or utilize exhibits to challenge his defense in this case - that the [Schaub’s] x-rays were purportedly destroyed by flood?

Schaub’s Br. at 10-11 (reordered for ease of analysis).

Before we address the merits of Schaub’s issues, we must first

determine if he has properly preserved and raised each of his issues for

consideration by this Court. We conclude that Schaub failed to properly

preserve and raise his first six issues.

Appellant waived our review of his first six issues by failing to properly preserve them in the trial court and/or present them here

-5- J-S25023-20

We begin by setting forth the rules for preserving and raising an issue

on appeal. To preserve an issue for appellate review, an appellant must raise

the contested issue in the trial court by motion, objection, point for charge,

request for findings of fact or conclusions of law, offer of proof, or other

appropriate method. Pa.R.C.P. 227.1(b)(1). An appellant must also file a post-

trial motion specifying the grounds for relief. Pa.R.C.P. 227.1(b). See

Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1000 (Pa. 2001). “A post-

trial motion must set forth the theories in support thereof ‘so that the lower

court will know what it is being asked to decide.’” Pa.R.C.P. 227.1, cmt.

(quoting Frank v. Peckich, 391 A.2d 624, 632-33 (Pa. Super. 1978)).

“Grounds not specified [in the motion] are deemed waived[.]” Pa.R.C.P.

227.1(b)(2).

In addition, when required by the trial court, as in this case, an appellant

must file a Concise Statement of Matters Complained of on Appeal pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b). The Rule 1925(b)

Statement “shall concisely identify each error that the appellant intends to

assert with sufficient detail to identify the issue to be raised for the judge.”

Pa.R.A.P. 1925(b)(4)(ii). An appellant waives any issue not raised in

accordance with the provisions of Rule 1925. Id. at 1925(b)(4)(vii).

Finally, an appellant must develop arguments in his appellate brief with

citation to the record and relevant authority. Pa.R.A.P. 2119(a). “We shall not

develop an argument for an appellant, nor shall we scour the record to find

evidence to support an argument.” Milby v. Pote, 189 A.3d 1065, 1079 (Pa.

-6- J-S25023-20

Super. 2018). To do so would place this Court “in the conflicting roles of

advocate and neutral arbiter.” Commonwealth v. Williams, 782 A.2d 517,

532 (Pa. 2001) (Castille, J., concurring). Therefore, an appellant waives any

issue he fails to develop sufficiently. Sephakis v. Pa. State Police Bureau

of Records and Identification, 214 A.3d 680, 686-87 (Pa. Super. 2019).

In his first issue, Schaub argues that the trial court erred when it

declined to strike several jurors for cause. Schaub’s Br. at 19-34. Schaub

waived our consideration of this issue by failing to identify in his post-trial

Motion and Rule 1925(b) Statement which jurors he believes the court should

have precluded for cause.

In his second, third, fourth, and fifth issues, Schaub failed to develop

with citation to the record his grounds for relief in his Post-Trial Motion and

appellate brief, in contravention of Rules 227.1 and 2119.

Specifically, in his second issue, Schaub argues that the trial court erred

by permitting defense expert Dr. Wayne Sebastianelli to testify outside the

scope of his expert report. Schaub’s Br. at 52-53. Schaub fails to identify and

cite to the contested testimony and his corresponding objection in the record.

In his third issue, Schaub argues that the trial court erred by precluding

portions of Dr. Culp’s trial deposition testimony where Schaub (1) utilized a

demonstrative animation during questioning, and (2) asked Dr. Culp standard

of care questions. Schaub’s Br. at 50-52. Schaub argues, without citation to

the record, that Dr. Culp’s testimony set a proper foundation for using the

disputed animation. Id. at 50-52. Schaub likewise argues, again without

-7- J-S25023-20

citation to the record, that Dr. Byron “opened the door” to Dr. Culp providing

expert testimony by asking standard of care questions during cross-

examination. Id. at 52. Finally, Schaub fails to cite to the record where the

court precluded him from asking proper questions.

In his fourth and fifth issues, Schaub argues that the trial court erred in

admitting evidence of his smoking history and delay in seeking treatment, as

it related to his comparative negligence. Schaub’s Br. at 47-50. He states that

the trial court admitted such evidence “improperly and over [his] vehement

objections.” Id. at 49. Schaub makes multiple representations about what the

evidence demonstrates, but fails to cite to the record to substantiate any of

his representations. See id. at 47-50.

He further argues that the trial court erred “by giving an instruction to

the jury with respect to [these] issue[s].” Id. at 47, 50. He does not refer this

Court to where the contested instruction appears in the record.

To undertake review of Schaub’s second, third, fourth, or fifth issues

would require us to scour the over-1,000-page record to find evidence to

support Schaub’s underdeveloped arguments. We will not do so, and, thus,

Schaub waived our consideration of these issues.2

Finally, in his sixth issue, Schaub argues that the trial court erred by

granting Dr. Byron’s Motion in Limine to preclude Dr. Doherty from testifying.

2We note that Schaub does not challenge the trial court’s finding that evidence of his smoking history was relevant to his life expectancy. Trial Ct. Op., at 45- 46.

-8- J-S25023-20

Schaub’s Br. at 34-41. Schaub identified his vocational expert 18 days before

trial. Trial Ct. Op., at 9. Dr. Byron filed a Motion in Limine seeking to preclude

her from testifying. Id. at 9-10. The court took the issue under advisement

and, on October 19, 2018, held a conference call wherein it provided Schaub

the option of continuing the trial to permit Dr. Byron to retain an opposing

expert, or proceeding to trial without the benefit of Dr. Doherty’s testimony.

Id. at 10-11. Schaub elected to proceed to trial. Id. at 11.

Since Schaub elected to proceed to trial without the aid of his vocational

expert, the trial court did not rule on Dr. Byron’s Motion to Preclude her

testimony. Id. at 9 (concluding that the court “did not actually preclude[

Schaub’s] expert”). As a result, no lower court preclusion ruling exists for this

Court to review and, thus, Schaub has not presented a valid issue for our

review.

Evidentiary rulings

Before addressing Schaub’s remaining issues, we must set forth the

rules governing admissibility of evidence. The threshold inquiry with admission

of evidence is whether the evidence is relevant. “Evidence is relevant if it

logically tends to establish a material fact in the case, tends to make a fact at

issue more or less probable[,] or supports a reasonable inference or

presumption regarding the existence of a material fact.” Smith v. Morrison,

47 A.3d 131, 137 (Pa. Super. 2012) (citation omitted); Pa.R.E. 401, 402. The

court may exclude otherwise relevant evidence if its probative value is

outweighed by its potential for unfair prejudice, confusion of the issues,

-9- J-S25023-20

misleading the jury, undue delay, pointlessness, or presentation of cumulative

evidence. Pa.R.E. 403.

Questions of admissibility lie within the trial court’s sound discretion and

we will not disturb the court’s decision absent a clear abuse of discretion. Parr

v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014). “[A]n abuse of

discretion may not be found merely because an appellate court might have

reached a different conclusion, but requires a manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Keystone Dedicated Logistics, LLC v. JGB Enters., Inc., 77

A.3d 1, 11 (Pa. Super. 2013) (citation omitted).

Several of Schaub’s issues involve the trial court’s decisions on motions

in limine. As with other evidentiary rulings, a trial court’s decision on a motion

in limine is subject to an abuse of discretion standard of review. Parr, 109

A.3d at 690.

Finally, we note that, “[i]n order to find that the trial court's evidentiary

rulings constituted reversible error, such rulings must not only have been

erroneous but must also have been harmful to the complaining party.” Oxford

Presbyterian Church v. Weil-McLain Co., 815 A.2d 1094, 1100 (Pa. Super.

2003) (citation omitted). An appellant “must therefore show error in the

evidentiary ruling and resulting prejudice, thus constituting an abuse of

discretion by the lower court.” Id. (citation omitted). “An evidentiary ruling

which did not affect the verdict will not provide a basis for disturbing the jury’s

judgment.” Hart v. W.H. Stewart, Inc., 564 A.2d 1250, 1252 (Pa. 1989)

- 10 - J-S25023-20

(citation omitted). More explicitly, “an erroneous evidentiary ruling on

damages, in a case where the jury has found for the defendant on the liability

issue, is harmless and does not entitle the plaintiff to a new trial.” Id. (citation

omitted).

Issue 7: The trial court exercised its discretion in preventing Schaub from using a PowerPoint in his opening statement

In his seventh issue, Schaub argues that the trial court erred by

precluding him from using a PowerPoint Presentation during his opening

statement. Schaub’s Br. at 41-43. Schaub’s PowerPoint was comprised of 75

slides including medical records, x-rays, and anatomical drawings. Id. at 41;

Trial Ct. Op., at 28.

We begin by noting that the trial court may permit counsel to use visual

aids during opening and closing statements. Risperdal Litigation W.C. v.

Janssen Pharmaceuticals, Inc., 174 A.3d 1110, 1117 (Pa. Super. 2017).

Permission to use visual aids is within the sound discretion of the trial judge.

Id.

Here, the trial court found that Schaub’s presentation was substantive

rather than demonstrative and contained “documentary and testimonial

evidence . . . in the form of x-rays and medical records that [Schaub] would

eventually seek to admit at trial.” Trial Ct. Op., at 31-32. The court noted that

Dr. Byron intended to contest the admissibility of several of the documents

Schaub proposed to show in the presentation. Id.

- 11 - J-S25023-20

The court expressed concern that, “[a]t such a critical stage of trial,

there is a heightened risk of prejudice to the other side where the trial court

fails to exercise its role as gatekeeper . . . The evidence must be presented at

the proper stage of trial when it can be authenticated and subject to scrutiny.

Any use prior to that time [risks] irreversible harm to the other party in the

event that the evidence is eventually precluded from trial.” Id. at 34-35. The

court permitted Schaub to use a presentation in his closing argument.

The trial court reviewed the presentation, heard argument from both

sides, and weighed the explanatory value of the presentation against the risk

of irreversible harm to Dr. Byron if the court later precluded the presented

evidence from trial. Id. at 31-35. We find no indication that the trial court

ruled based on partiality, prejudice, bias, or ill-will, and its ruling does not lack

support so as to be clearly erroneous. We, therefore, discern no abuse of

discretion in the trial court’s ruling.

Issue 8: The trial court exercised its discretion in limiting the scope of Schaub’s cross-examination of Dr. Byron

In his eighth issue, Schaub avers that the trial court erred by granting

Dr. Byron’s Motion in Limine limiting the scope of his cross-examination of Dr.

Byron. Schaub’s Br. at 43-47. The court precluded Schaub from (1) implying

that Dr. Byron purposefully destroyed the x-rays; and (2) utilizing a letter

from Schaub’s father to Dr. Byron contesting the medical necessity and cost

of the x-rays. Trial Ct. Op., at 72. Notwithstanding these limitations, the trial

- 12 - J-S25023-20

court permitted Schaub to conduct a robust cross-examination of Dr. Byron,

including questioning about the missing x-rays. Id. at 72-73.

The trial court weighed the probative value of Schaub’s proposed

evidence against the risk that it would prejudice Dr. Byron, confuse the issues,

or mislead the jury. The court reasoned that to allow Schaub to imply that Dr.

Byron nefariously destroyed the x-rays would distract from the issue of

whether Dr. Byron committed medical negligence and would contravene its

pretrial ruling on Schaub’s Spoliation Motion. Id. at 69-71, 75. It further found

that to permit Schaub to introduce his father’s letter would sidetrack the jury

and require testimony on collateral issues such as Schaub’s father’s

qualifications to opine to the relevance of the x-rays. Id. at 76-77. We discern

no abuse of discretion in the trial court’s ruling.

Conclusion

In sum, Schaub waived this Court’s consideration of his first five issues

and failed to present a valid issue for our review in his sixth issue. We discern

no abuse of discretion in the trial court’s rulings underlying Schaub’s seventh

and eighth issues.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/07/2020

- 13 -