Black, J. v. Ronnermann, D. ( 2017 )

J-A02045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER BLACK, AS EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF ANA T. PENNSYLVANIA
RAVELO-ORTIZ, DEC.
Appellant
v.
DREW P. RONNERMANN, M.D. AND
POTTSTOWN MEMORIAL
MEDICAL CENTER
No. 3006 EDA 2015
Appeal from the Judgment Entered November 6, 2015
in the Court of Common Pleas of Montgomery County Civil Division
at No(s): No. 09-30454
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 30, 2017
Appellant, Jennifer Black, Executrix of the Estate of Ana T. Ravelo-
Ortiz, appeals from the judgment entered in the Montgomery County Court
of Common Pleas.1 Appellant contends the trial court erred in denying her
objections to the trial court’s evidentiary rulings. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Appellant filed her notice of appeal on September 14, 2015, from the order
denying her motion for post-trial relief. Judgment was entered on November
6, 2015. “[A]n appeal to this Court can only lie from judgments entered
subsequent to the trial court’s disposition of any post-verdict motions, not
from the order denying post-trial motions.” Johnston the Florist, Inc. v.
TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc)
(citation omitted). Although Appellant filed her notice of appeal prior to
entry of judgment, it is well-settled that “even though the appeal was filed
prior to the entry of judgment, it is clear that jurisdiction in appellate courts
J-A02045-17
The trial court summarized the facts and procedural posture of the
instant case as follows:
In the present matter [Appellant] filed suit against
[Appellees], Drew P. Ronnerman, MD. and against
Pottstown Memorial Medical Center (hereinafter “PMMC”),
for failing to timely diagnose and treat the deceased, Anna
T. Revelo-Ortiz, colon condition. [Appellant] made a
professional negligence claim against Dr. Ronnerman, and
both a direct corporate negligence claim and a vicarious
negligence liability claim against PMMC.
On April 15, 2015, after a lengthy trial on the matter,
the jury returned a verdict in favor of [Appellees], Dr.
Ronnerman and PMMC and against [Appellant].1
On September 2, 2015, the trial court denied
[Appellant’s] Motion for Post-Trial Relief and a New Trial.
1
Please note, prior to deliberations, the trial court
dismissed the direct corporate negligence claim
against PMMC, leaving only the vicarious claim
against PMMC stemming from Dr. Bhardwaj’s actions
for the jury to consider.
Trial Ct. Op., 2/22/16, at 1-2. This appeal followed. Appellant filed a court-
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and
the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
1. Whether the trial court abused its discretion by
precluding the Estate’s corporate negligence expert, Dr.
Thomas Bojko, from testifying about [PMMC’s] corporate
negligence (failure to properly credential and supervise)
and dismissing the corporate negligence claim because the
trial court imposed a novel evidentiary requirement that
may be perfected after an appeal notice has been filed upon the docketing of
a final judgment.” Id. at 513 (citations omitted).
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the Estate cannot use the same causation expert to
provide the causative link between the claims of corporate
negligence and the underlying negligence of the radiologist
that combined to cause [Decedent’s] death?
2. Whether the trial court abused its discretion by
precluding the Estate from introducing evidence of Dr.
Bhardwaj’s repeated failures to attain Board Certification
to support the Estate’s claim that PMMC was corporately
negligent for failing to properly credential and supervise
Dr. Bhardwaj pursuant to Scampone v. Highland Park
Care Ctr., LLC, 57 A.3d 582 (Pa. 2012) and Thompson v.
Nason Hospital, 591 A.2d 703 (Pa. 1991)?
3. Whether the trial court abused its discretion by
precluding the Estate from introducing into evidence or
referencing during expert testimony PMMC’s admission
contained in the deposition testimony of PMMC’s Chief of
Radiology, managing agent and corporate designee that
the PMMC radiologist that misinterpreted [Decedent’s] CT
scan (Dr. Anil Bhardwaj) deviated from the standard of
care in failing to identify and report a critical finding that
led to [Decedent’s] suffering and death?
4. Whether the trial court abused its discretion by
permitting defense expert pathologist, Dr. Wayne Ross, to
express previously undisclosed opinions in the form of new
images together with unspecified enlargements of
pathology studies that were not produced to the Estate
until the eve of trial and the day after the Estate’s forensic
pathologist concluded his videotaped trial testimony?
Appellant’s Brief at 3-4.2
First, Appellant contends “the trial court improperly barred the expert
testimony of [Appellant’s] corporate negligence liability expert forcing
dismissal of that claim.” Id. at 14. Appellant argues that the trial court
2
We have stated Appellant’s issues in the order in which they are addressed
in the argument section of the brief.
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erred in finding that Dr. Seth Glick only provided causation for the vicarious
liability claim against PMMC. Id. at 17. Appellant argues
the trial court imposed a new evidentiary standard holding
that Dr. Glick could not provide the causation link for both
PMMC’s vicarious negligence arising out of the radiologist’s
misinterpretation and PMMC’s corporate negligence for
allowing a poorly credentialed and unsupervised radiologist
to perform this critical interpretation in the first place.
Id. at 16.
Appellant avers “Dr. Glick’s opinion was quite simple [sic] that the
hospital’s radiologist [Dr. Bhardwaj] deviated from the standard of care in
missing a critical finding which ultimately led to [Decedent’s] death. Nothing
in Dr. Glick’s causation opinion limits its application to the vicarious liability
claim.” Id. at 17-18. Appellant contends that this Court’s holding in Rauch
v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001) compels a finding of trial
court error. Appellant’s Brief at 17.
Our review is governed by the following principles:
When we review a ruling on the admission or exclusion
of evidence, including the testimony of an expert witness,
our standard is well-established and very narrow. These
matters are within the sound discretion of the trial court,
and we may reverse only upon a showing of abuse of
discretion or error of law. An abuse of discretion may not
be found merely because an appellate court might have
reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly
erroneous. In addition, [t]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.
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Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super. 2006) (citations
and quotation marks omitted).
The law of corporate negligence, under which a hospital can be held
directly liable for negligence, is well-settled:
Pennsylvania recognizes the doctrine of corporate
negligence as a basis for hospital liability separate from
the liability of the practitioners who actually have
rendered medical care to a patient. Whittington v.
Episcopal Hospital, 768 A.2d 1144, 1149 (Pa. Super.
2001). The doctrine creates a non-delegable duty on a
hospital to uphold a proper standard of care to patients.
Our law will impose liability if the hospital fails to ensure a
patient’s safety and well being at the hospital. A hospital
is directly liable under the doctrine of corporate negligence
if it fails to uphold any one of the following four duties:
1. a duty to use reasonable care in the maintenance
of safe and adequate facilities and equipment;
2. a duty to select and retain only competent
physicians;
3. a duty to oversee all persons who practice
medicine within its walls as to patient care; and
4. a duty to formulate, adopt and enforce adequate
rules and policies to ensure quality care for the
patients.
Id. (quoting Thompson [591 A.2d at 707-08; see also
Scampone, 57 A.3d at 601, citing the four pronged test
enunciated in Thompson]. Furthermore to present a
prima facie case of corporate negligence, a plaintiff must
demonstrate all of the following elements:
1. [the hospital] acted in deviation from the standard
of care;
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2. [the hospital] had actual or constructive notice of
the defects or procedures which created the harm;
and
3. that the conduct was a substantial factor in
bringing about the harm.
[Whittington, 768 A.2d at 1149]. Unless a hospital’s
negligence is obvious, an expert witness is required to
establish two of the three prongs: that the hospital
deviated from the standard of care and that the
deviation was a substantial factor in bringing about
the harm. [Id. at 1149-50].
Rauch, 783 A.2d at 826-27 (some emphases added); accord Welsh v.
Bulger, 698 A.2d 581, 585 (Pa. 1997).
“A cause of action for corporate negligence arises from the policies,
actions or inaction of the institution itself rather than the specific acts of
individual hospital employees. Thus, under this theory, a corporation is
held directly liable, as opposed to vicariously liable, for its own
negligent acts.” Welsh, 698 A.2d at 585 (citation omitted and emphasis
added).
In the case sub judice, the trial court opined:
In the initial claim of error, [Appellant] contends that
the trial court erred by precluding the testimony of
[Appellant’s] sole corporate negligence expert, Dr. Thomas
Bojko, and dismissing [Appellant’s] claim for corporate
negligence. . . .
In the case at bar, [Appellant] asserted two (2)
separate claims against [ ] PMMC. A claim of vicarious
liability premised upon the alleged negligent acts of
PMMC’s agent/employee Dr. Anil Bhardwaj (radiologist)
and a claim for direct corporate negligence. [Appellant]
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focuses on the direct corporate negligence claim in this
allegation of error.
* * *
Significantly, unless the hospital’s negligence is obvious, a
plaintiff must establish, thorough expert testimony, that
the hospital’s acts deviated from an accepted standard of
care and that the deviation was a [factual cause] in
bringing about plaintiff’s harm. In the case sub judice,
[Appellant] failed to provide an expert to establish that
PMMC’s alleged deviation from the accepted standard of
care caused [Decedent’s] harm. In short, [Appellant] was
unable to present the required expert testimony to support
the causation element of her direct corporate negligence
claim against the hospital.
To further explain, [Appellant] retained only one expert
witness to support her corporate negligence claim against
PMMC─Dr. Bojko. However, Dr. Bojko’s report discussed
only breach of the standard of care by PMMC, it failed to
address and/or assert that the breach caused [Decedent]
to suffer harm or that the breach increased the risk that
[Decedent] would suffer harm. Causation was simply
absent from the report. At trial, [Appellant] argued that
the lack of causation in Bojko’s report was not fatal
because she could “couple” or combine Bojko’s report with
that of her other expert witness, Dr. Glick. In his report,
Dr. Glick addressed the alleged breach of the standard of
care and causation with regard to PMMC’s agent/employee
Dr. Bhardwaj as it related to the vicarious liability claim.
Indeed, [Appellant] argued that, “[b]y coupling the
opinions of Drs. Bojko and Glick, all of the prima facie
elements of corporate negligence had been met such that
the jury should have been permitted to decide the claim.”
([Appellant’s] Motion for Post-Trial Relief and a New Trial
[R.R. at 4814a]). [Appellant] relied on Rauch [ ] for the
premise/holding that the coupling of expert reports is
appropriate to make out a prima facie case of medical
malpractice against a defendant. [R.R. at 4814a.3]
3
For the convenience of the parties, we cite to the reproduced record.
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* * *
While the court agrees that Rauch [ ] permits the
coupling of expert reports to establish a cause of action,
the holding is inapplicable herein. In Rauch, the court
allowed the coupling of expert reports to support a claim
against individual physicians. Rauch did not deal with the
coupling of experts against a hospital on a direct corporate
negligence claim. Indeed, the corporate negligence expert
in Rauch provided both standard of care and
causation opinions as to the corporate negligence claim.
[Rauch, 783 A.2d] at 828-29. In our case, [Appellant’s]
corporate negligence expert, Dr. Bojko, opined on standard
of care for direct corporate negligence against PMMC, but
was silent on causation for the direct corporate negligence
claim. [Appellant] hoped to couple her expert report from
Dr. Glick to establish causation. However, Dr. Glick only
provided causation for the vicarious liability claim against
PMMC, Dr. Glick did not provide causation regarding
the direct corporate negligence claim.[4]
4
Dr. Seth N. Glick, diagnostic radiologist, opined:
. . . I have been able to formulate an opinion regarding the
care rendered to [Decedent] in the context of the
performance, interpretation, and communication of her
imaging studies at [PMMC].
* * *
In summary, it is my opinion, with a reasonable degree of
medical certainty, that Dr. Bhardwaj’s failure to note the
abrupt transition zone and pneumatosis, individually and
cumulatively, were deviations from the standard of care.
These resulted in a delay in the appropriate management
leading to the subsequent perforation. If Dr. Bhardwaj
had made the correct assessment of probable colon
obstruction and cecal pneumatosis which would indicate a
weekending cecum with increased risk of perforation, more
aggressive diagnostic and/or therapeutic management
would have taken place consisting of any combination of
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Consequently, any coupling of [Appellant’s] expert reports
did not cure the deficiency.
Trial Ct. Op. at 2-5. We agree no relief is due.
Dr. Bojko opined:
I. [PMMC], its governing body, chief executive officer and
senior leadership deviated from the standard of care by
not having and implementing an appropriate and effective
quality control program which would ensure safe and
effective care to patients.
II. [PMMC], its governing body, chief executive officer and
senior leadership deviated from the standard of care by
failing to have or implement a reliable and consistent
process to determine competency and verify credentials
and failing to have a system to properly monitor
competency during the credentialing and re-credentialing
process.
III. [PMMC], its governing body, chief executive officer and
senior leadership deviated from the standard of care by
failing to have or implement a reliable and consistent
process to determine whether a physician’s character and
behavior towards staff and patients was appropriate and
whether they should be granted re-credentialing.
IV. [PMMC], its governing body, chief executive officer and
senior leadership are responsible to ensure services
provided by contractual agreement are provided safely and
effectively, and would deviate from the standard of care
should it be determined that Dr. Bhardwaj[‘s] failure to
diagnose and report pneumatosis was a contributory factor
in [Decedent’s] harm.
contrast enema, endoscopy, and surgery. This would have
prevented the eventual perforation, sepsis, and death.
R.R. at 983a-984a.
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R.R. at 996a.
Appellant’s expert, Dr. Bojko, opined that PMMC deviated from the
standard of care but did not establish that the deviation was a substantial
factor in bringing about Decedent’s harm. See Rauch, 783 A.2d at 827.
Appellant failed to establish a cause of action for corporate negligence. See
id.; Welsh, 698 A.2d at 585. We discern no abuse of discretion by the trial
court. See Freed, 910 A.2d at 72.
Second, Appellant contends the trial court erred in precluding evidence
that Dr. Bhardwaj had failed his board certification examinations multiple
times when he provided treatment to Decedent. Appellant’s Brief at 19.
Appellant avers that
evidence of Dr. Bhardwaj’s failure to obtain board
certification is directly relevant to [Appellant’s] claims that
PMMC failed to staff its hospital with properly
credentialed/competent physicians who received proper
oversight and supervision. The trial court’s preclusion of
this evidence prevented [Appellant] from providing
evidence that PMMC was on notice of the need to more
closely monitor Dr. Bhardwaj and assess whether he was
competent to independently interpret [Decedent’s CT
scan].
Id. at 23.5 Appellant concedes that “Pennsylvania courts hold that evidence
of board certification is NOT evidence of a specific negligence[.]” Id.
5
We note that Appellant deposed Dr. Brian Solomon. He testified as follows
in his deposition regarding Dr. Bhardwaj’s failure to obtain board
certification:
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In Hawkey v. Peirsel, 869 A.2d 983 (Pa. Super. 2005), this Court
addressed the issue of whether the physician’s lack of board certification was
relevant and admissible regarding the issue of the standard of care.
Regarding Dr. Peirsel’s lack of board certification in
emergency medicine, the trial court noted that it appeared
to have no probative value and therefore was irrelevant.
It explained that the court was “never fully told what board
certification really means in terms of medical actions, nor
[was it] told of the process of board certification.” Given
that “[b]oard certification is not a legal requirement to
practice medicine or be licensed in Pennsylvania,” the
court continued, the Hawkeys’ failure to connect board
certification and medical negligence was dispositive. . . .
Because the case concerned whether a standard of care
was met rather than the qualifications of a physician “by
some measure established by a medical organization,” the
court concluded, the evidence in question was irrelevant
and inadmissible.
The Hawkeys counter that they “sought to introduce
such evidence to establish the credentials and
qualifications of Dr. Peirsel as an emergency physician,”
Q: Well, did you have any concern about─well, in your
mind, was there any connection between an inability to
pass the board exam and patient safety?
A: In this case, no.
* * *
Q: Why do you say that?
A: The radiology boards, the written part is half physics,
and my experience has been that half has very little to do
with patient safety at all. And a lot of people have trouble
passing the physics part and I─I don’t believe that has
much to do with patient safety.
R.R. at 1302a.
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because “[w]hether . . . a physician is board certified is,
indeed, probative of his credentials and qualifications to
practice emergency medicine.” Indeed, the Hawkeys
contend, “[t]he credentials and qualifications of a physician
are always at issue in a medical malpractice action.” Their
entire argument revolves around these twin premises, for
which they cite no binding authority. The trial court did
not find these propositions self-evident and neither do we.
Given our deferent standard of review, and the
Hawkeys’ failure to provide us with any relevant
statement of law establishing board certification as
probative of a physician’s satisfaction of the
appropriate standard of care in a given case, we find
no cause to disturb the trial court’s ruling on this
matter. Accordingly, we conclude that their argument
lacks merit.
Id. at 989 (citations omitted and emphasis added).
In the case sub judice, the trial court opined: “[I]t is well settled that,
a physician is not required to be board certified in his discipline when he/she
treats a patient, thereby making any evidence in this regard non-probative
and irrelevant with regard to whether a physician was negligent in a
particular case.” Trial Ct. Op. at 7. We agree no relief is due. See
Hawkey, 869 A.2d at 989. Thus, we find no abuse of discretion by the trial
court in its evidentiary ruling. See Freed, 910 A.2d at 72.
Third, Appellant argues “the trial court erred in precluding the
testimony of [PMMC’s] chief of radiology, managing agent, and corporate
designee, Dr. Brian Solomon, that PMMC, through Dr. Bhardwaj, deviated
from the standard of care.” Appellant’s Brief at 24. Appellant avers that
“[t]he trial court abused its discretion by prohibiting the Estate from using
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Dr. Solomon’s admission that Dr. Bhardwaj deviated from the standard of
care, thereby necessitating a new trial.” Id.As a prefatory matter, we consider whether Appellant has waived this
issue on appeal. It is well-established that “in order for a claim of error to
be preserved for appellate review, a party must make a timely and specific
objection before the trial court at the appropriate stage of proceedings; the
failure to do so will result in a waiver of the issue.” Kaufman v. Campos,
827 A.2d 1209, 1212 (Pa. Super. 2003) (citation omitted).
In the case sub judice, the trial court opined:
First, this allegation of error has been waived for appellate
review. [Appellant] waived this argument for appellate
purpose [sic] when her counsel . . . conceded on the
record, that Dr. Solomon’s standard of care testimony
would be inappropriate.
Trial Ct. Op. at 6. We agree the issue is waived.
Prior to the commencement of the trial in the instant case, counsel for
PMMC made the following motion:
[Counsel for PMMC]: So the motion is this: That all
parties be precluded from introducing the deposition
testimony of Dr. Solomon that constitutes opinion
testimony, especially in the nature of expert testimony.
Dr. Solomon is not a named defendant, although he
admittedly is an agent of the hospital for the purposes of
this case, but it doesn’t really matter whether he’s a party
or not. I believe the case law which we’ve cited in our
motion makes it abundantly clear that a physician cannot
be compelled to give testimony in the nature of an opinion
or expert testimony when he chooses not to do so.
I will represent to the [c]ourt that Dr. Solomon has
advised me through counsel that he does not wish to offer
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expert testimony in this case. He hasn’t been retained by
[Appellant].
* * *
The substance of our motion is that he is being turned into
a forced, unpaid expert witness who does not choose to be
in that role.
* * *
[T]he testimony that I’m objecting to is, number one, that
when he looked at the CT scan of October 16th, 2007 . . .
in his deposition testimony said that he saw a
pneumatosis. . . .
And then he was asked later in the deposition, . . . “And
was the failure of the reading radiologist to report it as a
pneumatosis a deviation from the standard of care?” And
his answer was, “I believe so.”[6] Both of those, Your
6
Dr. Solomon gave two depositions in the instant case. The first deposition
occurred on September 30, 2010. R.R. at 1172a. He testified that he was
the medical director of radiology. Id. at 1179a-1180a. He testified, inter
alia, as follows:
[Counsel for Appellant]: Doctor, have you been asked at
any point to serve as an expert in this matter involving
[Appellee,] Dr. [Drew P.] Ronnerman?
A: No.
Q: As we sit here today, do you have any intentions to act
as an expert and give your opinions regarding this matter?
A: No.
* * *
Q; My question, Doctor, to you, simply put, and I
understand there is a continuing objection to this question:
When you came to your conclusion, what was it as to
whether Dr. Bhardwaj complied with the standard of care?
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Honor, clearly are opinion expert testimony and should not
come in . . . .
* * *
[Counsel for Appellant]: Let me tell you where I agree with
them.
* * *
Where I agree with them is that I asked Dr. Solomon, Did
Dr. Bhardwaj deviate from the standard of care? And he
said, Yes. I believe that that is an inappropriate
opinion for me to elicit in front of the jury.
That being said, Your Honor, if I have experts who will
come in and say that is the type of information that they
regularly rely upon in rendering their opinions in their
practice, the opinions of their colleagues, . . . but they can
certainly testify that that’s information that they regularly
and reasonably rely upon, which is the standard for giving
the basis for an expert opinion.
That being said, I think the hospital would be hard-
pressed to say that the opinion of a fellow radiologist that
somebody missed something is something that doesn’t
happen in radiology because there will be a great deal of
testimony in this case and documents from the hospital
that they have their own internal discrepancy finding
program allegedly where they’re supposed to look at each
other’s films and look at each other’s analysis, look at the
A: I believe that he did not.
Q: And why?
A: Because I─pneumatosis is an important finding. It
should─it should have been in the report.
Id. at 1180a, 1218a.
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film and then look at the report, and determine whether
they missed something. And if they did, they fill out a
discrepancy report.
So I find it impossible that the hospital could stand
before you and suggest that this notion of one radiologist,
our expert radiologist, Dr. Glick, relying in part─he has his
own opinion of Dr. Solomon with respect to the deviation.
R.R. at 3486a-3490a (emphases added). The trial court ruled:
[N]othing can be raised about [Dr. Solomon’s]
determination that it was a deviation of the standard of
care. Your [i.e., Appellant’s] experts can rely upon his
finding of seeing pneumatosis to make their determination
that there was a violation of the standard of care, but they
cannot refer to his determination that it was a standard of
care violation.
Id. at 3516a.
Not only did Appellant’s counsel fail to make a timely and specific
objection before the trial court, counsel conceded that Dr. Solomon’s opinion
of Dr. Bhardwaj’s standard of care was “an inappropriate opinion for [him] to
elicit in front of the jury.” Id. at 3489a. Accordingly, we find the issue
waived. See Kaufman, 827 A.2d at 1212.
Lastly, Appellant contends the trial court abused its discretion by
permitting defense expert pathologist, Dr. Wayne Ross, “to express new
opinions through images that were undisclosed until the eve of trial and after
[Appellant’s] expert had provided videotaped trial testimony.” Appellant’s
Brief at 32.
It is well-established that
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[d]emonstrative evidence is “tendered for the purpose of
rendering other evidence more comprehensible for the
trier of fact.” 2 McCormick on Evidence § 212 (5th ed.
1999). As in the admission of other evidence, a trial court
may admit demonstrative evidence whose relevance
outweighs any potential prejudicial effect.
Kopytin v. Aschinger, 947 A.2d 739, 747 (Pa. Super. 2008) (some
citations and quotation marks omitted).
Instantly, the trial court opined:
[Appellant] specifically contests the admission of
demonstrative evidence. Notably, at the trial, [Appellant]
did not contest the relevancy of the pathology slides
themselves, rather she contests the enlargements of and
manipulation/altering of the pathology slides into a Power
Point presentation, and the alleged lack of notice that such
a Power Point presentation would be used.
Turning first to the timing of the production of the
evidence, all the parties’ expert witnesses had access to,
and reviewed, the pathology slides. Indeed, [Appellant’s]
pathology expert, Dr. Donald Jason, was provided
[Decedent’s] pathology slides[7] before he rendered his
expert report and testified in the matter.
7
Dr. Jason, in his videotaped deposition, testified that in rendering his
expert opinion he “[l]ooked at all the material that was available to [him],
including the autopsy report, medical records, microscopic slides, various
reports from other doctors, looked at autopsy photographs, and some
depositions and exhibits.” R.R. at 3386a. Counsel for PMMC questioned Dr.
Jason as follows:
Q: Well, Dr. Jason, you don’t mention anything about the
microscopic slides in your opinions─in your pathological
opinions in this case, do you?
A: Well, not per se, but they certainly were part of the
material I reviewed and do come into my─my coming to
the conclusions I came into because I was able to look at
them.
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* * *
Thus, it is evident that [Appellant’s] expert witness, Dr.
Jason reviewed the pathology slides at issue, and then
utilized them as he saw fit when rendering his expert
opinion. Therefore, there was no unfair surprise to
[Appellant] at the trial with reference to the slides
themselves. Rather, [Appellant] appears to contest Dr.
Ross’ enlargement and staining of the slides at issue for
demonstrative use during his trial testimony. However,
this argument likewise fails because [Appellee] PMMC
specifically listed Dr. Ross’s Power Point as an exhibit in its
Supplemental Pre-Trial Statement, filed on March 4, 2014,
Q: Well, and, in fact, you are a pathologist. That’s what
pathologists do. Is that correct?
A: Among other things. I’m a forensic pathologist, and,
frankly─
Q: Okay. I─
A: May I finish? Microscopic slides are not the major
function or major technique that a forensic pathologist
uses. The gross autopsy is also quite important;
investigation is important; review of records, medical
records in particular is important. Microscopic slides are
important, but not the only thing, by any means.
* * *
I don’t break down in my report any particular appearance
in any of the microscopic slides, but rest assured that my
review of the microscopic slides were also taken into
consideration along with the other material that I listed.
Id. at 3412a-3413a, 3416a.
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without any objection[8] or inquiry by [Appellant’s] counsel
thereafter.[9]
* * *
At trial, [Appellee’s] expert, Dr. Ross, used the challenged
Power Point and pictures to help the jury understand the
opinions addressed in his expert report. . . . Thus, the
Power Point and photographs were relevant, authentic,
reliable and properly admissible to assist the expert in
educating the jury.
Trial Ct. Op. at 8-11. We agree no relief is due. See Kopytin, 947 A.2d at
747. We discern no abuse of discretion by the trial court. See Freed, 910
A.2d at 72.
Accordingly, we affirm the judgment.
Judgment affirmed.
8
We note that at trial, at the conclusion of Dr. Ross’s testimony, PMMC
moved for the admission of numerous exhibits, including “Exhibit 103, which
are the Power Point slides from Dr. Ross . . . .” R.R. at 4394a. The court
asked if there was any objection to any of the exhibits. Id. Appellant’s
counsel did not object to the admission of any of the enumerated exhibits.
Id. Furthermore, because Appellant failed to object to the Power Point
slides, we could find the issue waived. See Kaufman, 827 A.2d at 1212.
9
The statement provided, inter alia, as follows:
IV. EXHIBITS
1. Medical records, employment records, insurance
records of [Decedent], including but not limited to:
a. Autopsy report, photographs, power point
illustrations, specimens, slides
Supplemental Pretrial Statement of Defendant, Pottstown Memorial Medical
Center, 3/4/14, at 4 (emphasis added).
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J-A02045-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
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