Chiodetti, G. v. Fernandes, E ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARY CHIODETTI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DR. EUGENE FERNANDES,
Appellee No. 63 EDA 2013
Appeal from the Judgment Entered November 15, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term, 2009; #0040
BEFORE: BOWES, OTT and STRASSBURGER, *JJ.
DISSENTING MEMORANDUM BY BOWES, J. FILED FEBRUARY 06, 2015
The learned Majority concedes that Dr. Iliff testified inconsistently and
beyond the scope of his expert report when he “changed his opinion
regarding the causation of Chiodetti’s blindness.” Majority Memorandum at
10. Yet, without even a nod to Pa.R.C.P. 4003.5(c), which precludes experts
from offering opinions on direct examination that are inconsistent with or go
beyond the fair scope of their reports, the Majority simply cites Lykes v.
Yates, 77 A.3d 27, 33 (Pa.Super. 2013), for the proposition that since the
jury found no negligence, “any error regarding causation would not affect
the verdict.” Id. It then goes on to hold that, since the jury’s finding that
Dr. Fernandes did not breach the standard of care was fully supportable on
*Retired Senior Judge assigned to the Superior Court.
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standard of care evidence alone, the offending causation testimony could not
have tainted the verdict.
I believe the trial court erred in permitting Dr. Iliff to testify
inconsistently with, and beyond the scope of, the opinions contained in his
expert report in violation of Pa.R.C.P. 4003.5(c). Furthermore, contrary to
my distinguished colleagues, I believe the offending testimony affected both
the standard of care and causation as the issues were inextricably
intertwined. Since the error may have affected the verdict, I would reverse
and remand for a new trial on this basis. Hence, I respectfully dissent.
Preliminarily, I believe that the proper standard of review of this issue
is the one for the admissibility of evidence.
When we review a trial court's ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.Super. 2009) (quoting
Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008). “A party suffers
prejudice when the trial court's error could have affected the verdict.”
Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550,
561 (Pa.Super. 2006) (emphasis added).
Mr. Chiodetti alleges that he was ambushed by Dr. Iliff’s rejection of
the CRAO diagnosis contained in his report and his adoption of Dr. Duker’s
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OAO diagnosis. Furthermore, he contends that since the defense experts did
not criticize the post-operative testing in their reports, this testimony was a
surprise, and, consequently, he had no rebuttal witness available to refute
it.1 The record demonstrates the following.
Mr. Chiodetti awoke blind in his right eye after surgery performed by
Dr. Fernandes to repair a fractured orbit. Mr. Chiodetti’s expert, Dr.
Kraushar, opined that Dr. Fernandes inadvertently injected anesthetic
directly into the globe of Mr. Chiodetti’s eye causing the blindness. He
arrived at that conclusion after diagnosing Mr. Chiodetti as suffering from a
CRAO, a condition consistent with the injection of anesthetic directly into the
eye, and Dr. Fernandes’ admission that he did not move the needle slightly
before injecting anesthetic to ensure that it was not located in the eye itself.
Dr. Kraushar testified that a physician is negligent if he fails to move the tip
of the needle slightly to ensure that the globe does not move before
injecting the anesthetic.
Dr. Duker, the first of two defense experts to testify, disagreed that
Dr. Fernandes injected anesthetic into the eye. He arrived at that conclusion
after determining that Mr. Chiodetti suffered an OAO, a condition
inconsistent with such an injection. Furthermore, Dr. Duker maintained that
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1
Dr. Fernandes maintained that Dr. Iliff’s trial opinions regarding OAO were
merely “refinements” of his initial diagnosis, Appellee’s brief at 19, a position
rejected by the Majority as well as this author.
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the injection of anesthetic into the eye was not necessarily negligent; it was
a known complication of eye surgery that rarely occurred. Finally, he
disputed that Dr. Kraushar’s “wiggle method” was the standard of care.
Dr. Iliff, the second defense expert, had prepared an expert report in
which he rendered the following opinions. The morning after surgery, it was
determined that Mr. Chiodetti had “no light perception” in the surgically
treated eye. Dr. Iliff stated this was “most likely due to central retinal artery
occlusion (CRAO),” and that embolus was “very unlikely.” Report, Nicholas
Iliff, M.D., 12/29/10, at 2. He opined that the causes of Mr. Chiodetti’s
blindness “which should be considered” are “CRAO, trauma to the optic
nerve or microvascular spasm of perineural vessels[,]” id., but ultimately
concluded that CRAO was the most likely. He agreed that an intraocular
injection of lidocaine with epinephrine into the eye could cause a CRAO, but
he disputed that Dr. Fernandes’ injection deviated from the standard of care,
or that it perforated the eye so as to cause the CRAO. In his supplemental
report, Dr. Iliff disagreed that “the standard of care requires that the needle
on the syringe be moved to determine whether the eye moves with the
needle.” Report, Nicholas T. Iliff, M.D., 2/28/11, at 1.
Dr. Iliff’s trial testimony was markedly different from his report. He
characterized Dr. Kraushar’s theory of the injury as “a very unlikely
scenario.” N.T. Trial (Jury) Vol. 4, 7/21/11, at 28. Although an OAO was
not mentioned in his report as a possible cause of the blindness, he was
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asked on direct examination and over objection, “What findings were there
in Mr. Chiodetti’s case that support the conclusion that the loss of vision was
due to an obstruction of the ophthalmic artery?” Id. at 49. The expert then
launched into a description of an OAO, how Mr. Chiodetti’s symptoms were
consistent with both a CRAO and an OAO, and concluded that, “there’s
certainly evidence here that there was a problem with the ophthalmic artery
occlusion.” Id. at 57.
Moments later, again over objection, Dr. Iliff was asked, “Now having
looked at the entire set of materials again what is your opinion as to the
cause of the vision loss?” Id. at 60. Dr. Iliff told the jury that while on his
way to trial, the conclusion he reached was, “Ophthalmic artery occlusion,
this is what I ultimately came to.” Id. at 63. Counsel then exhaustively
explored on direct examination why Mr. Chiodetti’s findings fit the OAO
scenario much better than the CRAO scenario he had originally concluded
was the cause of blindness. Id. at 65-89. Dr. Iliff went on to criticize at
length the post-operative test results that were inconsistent with an OAO.
Notably, he opined that the post-operative carotid Doppler study that
indicated good flow in the ophthalmic artery was inaccurate in measuring
ophthalmic artery blood flow. Id. at 74. He testified that the tests meant
nothing in this setting, that other tests were necessary to detect the
blockage, and that the CT scan would not show the blood vessels. Id. at
78-80. Dr. Iliff, using the CT scan, demonstrated to the jury why it was
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inadequate. None of this criticism was contained in his expert report; in
fact, Dr. Iliff had relied on these same tests in reaching the conclusions
stated in his report.
Finally, Dr. Iliff told the jury there were four potential causes of an
OAO: direct trauma, swelling, irritation, and clots. Id. at 85-86. He
explained that all of these were normal consequences of the surgery and
could cause an OAO even when the surgery is performed correctly. Id. at
88. Dr. Iliff also reiterated Dr. Duker’s testimony that an inadvertent
injection of local anesthesia into the globe would not cause an OAO. Id. at
89.2
The Majority concedes that Dr. Iliff’s trial testimony was inconsistent
with and went far beyond the scope of his expert report. I submit that its
admission was violative of Pa.R.C.P. 4003.5(c). Pa.R.C.P. 4003.5(c), often
referred to as the fair scope rule, provides:
(c) To the extent that the facts known or opinions held by an
expert have been developed in discovery proceedings under
subdivision (a)(1) or (2) of this rule, the direct testimony of the
expert at the trial may not be inconsistent with or go beyond the
fair scope of his or her testimony in the discovery proceedings as
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2
On cross-examination, Dr. Iliff conceded that the term “OAO” did not
appear anywhere in his reports. N.T. Trial (Jury) Vol. 4, 7/21/11, at 100.
He also acknowledged that he did not address therein the use of the Doppler
on the carotid or ophthalmic arteries. Id. He admitted that he was not
present in court when Dr. Duker testified, but defense counsel supplied him
with a synopsis of Dr. Duker’s testimony.
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set forth in the deposition, answer to an interrogatory, separate
report, or supplement thereto. However, the expert shall not be
prevented from testifying as to facts or opinions on matters on
which the expert has not been interrogated in the discovery
proceedings.
The Explanatory Note to Rule 4003.5 states in pertinent part:
To prevent incomplete or "fudging" of reports which would fail to
reveal fully the facts and opinions of the expert or his grounds
therefor, subdivision (c) provides that an expert's direct
testimony at trial may not be inconsistent with or go beyond the
fair scope of his testimony as set forth in his deposition and
answer to interrogatories, separate report or supplements
thereto. However, he may testify to anything which he has never
questioned in the discovery proceedings. This is a new provision
not expressly found in the Federal Rule.
The rule is intended to avoid unfair surprise or prejudice at trial by
permitting a party to prepare a meaningful response to the opponent’s
expert. Jones v. Constantino, 631 A.2d 1289, 1294-95 (Pa.Super. 1993).
It “favors the liberal discovery of expert witnesses and disfavors unfair and
prejudicial surprise.” Id. (quoting Dibel v. Vagley, 612 A.2d 493, 499
(Pa.Super. 1992). The rule precludes experts from testifying on direct
examination to opinions that are inconsistent with or beyond the scope of
the opinions in their expert reports.
In Jones, supra, we affirmed the trial court’s grant of a new trial
based on the defense expert’s testimony at trial that exceeded the scope of
his expert report. The expert testified that traction, “an injury caused by the
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normal manipulation of extremely fragile ducts in the course of the
surgery[,]” was the cause of plaintiff’s problem following gallbladder surgery.
Jones, supra at 1296. However, in his expert report, the expert had
opined only that the injury sustained by the plaintiff during elective
gallbladder surgery was unavoidable and not caused by negligence, and he
offered no alternative cause. We rejected the defense contention that the
plaintiff suffered no prejudice from the expert’s deviation from his report,
and held that that Rule 4003.5 does not permit an expert to “make a bald
assertion of non-negligence in his expert report and then proffer an in-depth
theory explaining absence of culpability at trial.” Id. We refused to sanction
“ambiguity and avoidance” in expert reports, and held that reports which did
not apprise the opponent of the basis for the expert’s conclusion failed to
comport with Pa.R.C.P. 4003.5(c).
Walsh v. Kubiak, 661 A.2d 416 (Pa.Super. 1995), involved claims of
medical malpractice and battery for lack of informed consent against an
orthopedic surgeon. The defense expert’s report only discussed the lack of
negligence and did not address the necessity for the surgery. The trial court
precluded the expert from expressing any opinion at trial that the surgery
was in fact necessary on the ground that the opinion was outside the scope
of his report. On appeal, the defendant alleged this restriction constituted
reversible error. We affirmed, finding nothing in the expert report that
would have permitted the plaintiff to anticipate that the expert would
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express the opinion that the surgery was necessary. Thus, Plaintiff could not
have adequately prepared to cross-examine the expert on the subject of
surgery. Furthermore, the only expert for plaintiff who could have rebutted
the expert’s proposed testimony had already testified and been excused.
We concluded that the plaintiff would have been prejudiced by the
introduction of such testimony, and that the trial court properly limited the
scope of the expert’s testimony to the conclusions stated in his report.
More recently, in Woodard v. Chatterjee, 827 A.2d 433 (Pa.Super.
2003), a motor vehicle accident case, plaintiff’s expert testified based on the
records of other physicians that Woodard sustained an acute cervical
radiculopathy due to the accident. However, the expert’s report noted only
“some lingering neck pain and stiffness” from an earlier accident and made
no mention of a cervical injury. Id. at 437. The trial court found that the
expert’s testimony exceeded the fair scope of his report, but found no
prejudice or surprise because Ms. Chatterjee was privy to the EMG report
upon which the expert relied and “had adequate time to prepare a rebuttal.”
Id. at 442. This Court reversed and awarded a new trial, concluding that
not only did the testimony exceed the fair scope of the expert’s report, it
was prejudicial as well. We ruled that Ms. Chatterjee lacked sufficient notice
that the only trial expert would testify about the findings and diagnoses of
other physicians to whom he made no reference in his own reports.
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In Brodowski v. Ryave, 885 A.2d 1045, 1065-1066 (Pa.Super. 2005)
(en banc), this Court affirmed the trial court’s refusal to admit expert
testimony that was not addressed in the experts’ reports on the basis of
unfair surprise. We held that since the experts’ reports did not address
“what Dr. Byron should have known or what inquiries, if any, he should have
made to the unknown person who reported to him that night[,]” expert
testimony on this question was properly precluded as beyond the scope of
the reports.
There is considerable precedent interpreting Rule 4003.5(c) as
requiring a showing of prejudice to the opposing party in order for admission
of the offending expert testimony to be considered reversible error. See
Butler v. Kiwi, S.A., 604 A.2d 270, 276 (Pa.Super. 1992); Augustine v.
Delgado, 481 A.2d 319, 200-5 (Pa.Super. 1984). Where surprise results in
the opposing party’s inability to meaningfully cross-examine a witness or
offer a rebuttal witness, we have found sufficient prejudice to warrant a new
trial. Notably absent is any analysis of whether the error may have affected
the verdict, which is the standard applied by the Majority herein, presumably
because it is implicit that such prejudice may affect the verdict.
I believe Mr. Chiodetti has demonstrated that he was ambushed by Dr.
Iliff’s reversal and placed at considerable disadvantage in cross-examining
the expert. Furthermore, Mr. Chiodetti was anticipating that Dr. Iliff would
testify consistently with his report and favorably to Plaintiff that Mr.
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Chiodetti sustained a CRAO, a condition that may result from an inadvertent
injection of anesthetic into the eye. Instead, by rejecting that diagnosis and
adopting Dr. Duker’s OAO diagnosis, Dr. Iliff effectively ruled out an
inadvertent injection of anesthetic as the cause of Mr. Chiodetti’s blindness,
totally undercutting Plaintiff’s liability theory. Had Dr. Iliff testified
consistently with his report, Mr. Chiodetti could have pointed to a defense
expert who agreed with his expert’s diagnosis, which was consistent with his
theory of how the injury occurred. Thus, not only was Dr. Iliff’s turn-about a
complete surprise to Mr. Chiodetti, it also undercut Plaintiff’s theory that Dr.
Fernandes injected anesthetic directly into Mr. Chiodetti’s eye.
Moreover, Dr. Iliff’s trial testimony was unfairly prejudicial in another
important respect. In his report, Dr. Iliff offered no discussion, and
certainly, no criticism, of the Doppler studies and CT scan results, all of
which he reviewed and relied upon in authoring his report. The results of
those objective tests thoroughly undermined the OAO diagnosis as they
showed normal ophthalmic artery blood flow. At trial, over objection, Dr.
Iliff was permitted to testify at length that the objective tests were
inaccurate and to explain why the results did not rule out OAO as the cause
of Mr. Chiodetti’s blindness. Since Dr. Duker’s expert report also did not
discuss or criticize the accuracy of the Doppler studies and CT scans that
showed no interrupted blood flow in the ophthalmic artery, which seemingly
refuted a diagnosis of OAO, I am persuaded by Mr. Chiodetti’s contention
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that this attack came as a complete surprise and that he was not prepared.
Not only was his ability to cross-examine Dr. Iliff regarding the tests
severely compromised, but he had no rebuttal expert in the wings who could
refute the attacks on the validity of the testing. I submit that this was the
type of prejudice to the opposing party that Pa.R.C.P. 4003.5(c) was
intended to prevent.
The Majority agrees that Dr. Iliff’s testimony on direct examination
was inconsistent with and went far beyond the scope of his report, but does
not address Pa.R.C.P. 4003.5, or analyze the impact of the erroneously
admitted expert testimony upon the opposing party, Mr. Chiodetti. Instead,
it mistakenly dismisses the offending testimony as related solely to
causation, and then concludes that since the jury found no breach of the
standard of care, it never reached the causation issue. I find the latter
assumption untenable on the record herein.3
In the instant case, negligence and causation were interwoven. Mr.
Chiodetti maintained that Dr. Fernandes negligently injected anesthetic
directly into the globe of his eye because he failed to perform a wiggle
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3
The jury responded in the negative to the first question on the verdict slip:
“Did you find that the conduct of the defendant doctor fell below
the applicable standard of care? In other words, was the
defendant doctor negligent?”
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maneuver prior to injecting the anesthesia to ensure that the needled was
not located in the eye. A diagnosis of CRAO was consistent with the
injection scenario; a diagnosis of OAO was not. Thus, Dr. Iliff’s offending
diagnosis testimony was highly probative of whether or not Dr. Fernandes
inadvertently injected the anesthetic into Mr. Chiodetti’s eye in the first
instance. The expert’s rejection at trial of his earlier CRAO diagnosis in favor
of OAO effectively ruled out the negligent injection of anesthetic into the
globe of Mr. Chiodetti’s eye as the mechanism of injury. If the jury believed
the defense experts that OAO rather than CRAO was the proper diagnosis, it
necessarily followed that Dr. Fernandes did not negligently inject the eye
with anesthetic.
I submit that the jury’s verdict of no negligence is consistent with a
finding either that the wiggle method was not the standard of care for the
injection of anesthetic or that Dr. Fernandes did not inject anesthesia
directly into Mr. Chiodetti’s eye. Since Dr. Iliff’s offending testimony
undermined the latter, it was highly probative of negligence. Hence, I find
unsupportable the Majority’s conclusion that such testimony related only to
causation, and that the jury did not consider it in arriving at its conclusion
that Dr. Fernandes was not negligent.
Finally, I believe the Majority’s analysis of the sufficiency of the
standard of care evidence is misguided and irrelevant to our determination.
The fact that the standard-of-care evidence alone could sustain the jury’s
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verdict has no bearing on whether the erroneously admitted evidence may
have affected the verdict. I submit Dr. Iliff’s improperly admitted testimony
tended to prove that Dr. Fernandes did not inject the eye, negligently or
otherwise, and thus, it may have contributed to the jury’s verdict that his
conduct did not fall below the standard of care. Hence, I would reverse for a
new trial.
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