Deeds, N. v. University of Pennsylvania , 110 A.3d 1009 ( 2015 )

J-A33035-14
2015 Pa. Super. 21
NIAJAH DEEDS, A MINOR BY HER LEGAL IN THE SUPERIOR COURT OF
GUARDIAN, JULIA RENZULLI PENNSYLVANIA
Appellant
v.
UNIVERSITY OF PENNSYLVANIA
MEDICAL CENTER, HOSPITAL OF THE
UNIVERSITY OF PENNSYLVANIA AND
TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA
Appellees No. 755 EDA 2014
Appeal from the Order of January 28, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 2558 May Term, 2011
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED JANUARY 30, 2015
In this medical negligence action, Niajah Deeds, a minor by her legal
guardian, Julia Renzulli, appeals from the jury verdict in favor of the
University of Pennsylvania Medical Center, Hospital of the University of
Pennsylvania (“HUP”), and Trustees of the University of Pennsylvania
(“Trustees”) (collectively, “Appellees”). Following due review, we reverse
and remand for a new trial.
The trial court set forth the following facts:1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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On November 27, 2000, [Deeds’] mother, Tamika Peterson,[ 2]
presented to HUP with back and abdominal pain. She was
diagnosed with “common discomfort of pregnancy” and given
preterm labor instruction sheets. She again presented on
January [18], 2001 with complaints of headache, uterine
contractions, and blurred vision. She reported cocaine and
cigarette use. Ms. Peterson’s records also indicated a physically
small placenta and history of sickle cell disease, and physical
trauma. Ms. Peterson was evaluated and instructed to return for
a follow up visit on January 20, 2001. She was also given an
instruction sheet for warning signs of preeclampsia.
Ms. Peterson did not return to HUP until 6:20 p.m. on January
20, 2001 with complaints of vaginal bleeding. Ms. Peterson
suffered a placental abruption and gave birth via an emergency
cesarean section. [Deeds] was born with severe birth defects.
Trial Court Opinion (“T.C.O.”), 5/21/2014, at 2. Renzulli, Deeds’ legal
guardian, filed suit on Deeds’ behalf on May 23, 2013, alleging that
Appellees negligently failed to diagnose Peterson with preeclampsia when
she was seen on January 18, 2001. The matter proceeded to a jury trial on
October 25, 2013. At the end of the first day of trial, Deeds informed the
court that the parties had stipulated that “all the people who provided
medical treatment to Ms. Peterson were agents of Defendant HUP [and]
asked the [c]ourt to dismiss the other defendants from the case.” Id. The
_______________________
(Footnote Continued)
1
The Honorable Gary F. DeVito retired after presiding over the jury trial.
The Honorable Mark I. Bernstein was assigned to write the opinion of the
trial court.
2
Ms. Peterson is not a party to this case. In 2008, Deeds was removed
from Ms. Peterson’s home and placed in the foster care system. In October
of 2008, Julia Renzulli became Deeds’ foster parent, and Deeds’ legal
guardian in late 2009.
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court denied the motion to dismiss the other defendants, thus permitting
both HUP and the Trustees to be represented separately by individual
counsel, each of whom then presented separate arguments and conducted
separate examinations of witnesses throughout trial. Only HUP, and not the
Trustees, appeared on the verdict sheet.
On November 12, 2013, the jury returned a verdict in favor of
Appellees. Deeds timely filed post-trial motions requesting judgment
notwithstanding the verdict or, alternatively, a new trial. The court denied
the post-trial motions on January 28, 2014, and Deeds timely appealed. In
response to the trial court’s order, Deeds filed a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 31, 2014,
and the trial court entered its Pa.R.A.P. 1925(a) opinion on May 21, 2014.
Deeds presents three questions for our review:
1. In accordance with this Court’s recognition of a per se rule
entitling the plaintiff to a new trial following a defense verdict
where counsel for defendant has improperly informed the jury
that the plaintiff’s injuries are being adequately cared for due to
the availability of government benefits, should not [Deeds]
receive a new trial here because [Appellees’] counsel committed
this very transgression, to the likely prejudice of [Deeds]?
2. Did the trial court err or otherwise abuse its discretion in
not granting [Deeds] a new trial because the trial court
improperly allowed two separate attorneys representing two
separate defendants to question witnesses and present closing
arguments even after the parties stipulated that this case would
proceed only against a single defendant?
3. Did the trial court err or otherwise abuse its discretion in
permitting defendant Dr. Samuel Parry to testify as an expert
witness beyond the scope of his actual treatment of the birth
mother, even though defense counsel failed in violation of
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applicable procedures to identify him as an expert witness and
disclose his expert opinions during discovery?
Deeds’ Brief at 5-6.
In her first issue, Deeds argues that she is entitled to a new trial
because the trial court violated the collateral source rule when it “improperly
allowed [Appellees] to inform the jury that [Deeds’] substantial medical
needs were all being attended to at little to no cost to [Deeds’] legal
guardian due to the existence of state and federal education and medical
benefits programs.” Id. at 16-17. We agree.
Our standard of review regarding a trial court’s denial of a
motion for a new trial is limited. The power to grant a new trial
lies inherently with the trial court and we will not reverse its
decision absent a clear abuse of discretion or an error of law
which controls the outcome of the case.
Maya v. Johnson & Johnson & McNeil-PPC, Inc. (In re McNeill-PPC,
Inc.), 97 A.3d 1203, 1224 (Pa. Super. 2014) (citation omitted).
Generally, “the collateral source rule provides that
payments from a collateral source shall not diminish the
damages otherwise recoverable from the wrongdoer.”
Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995). This
rule “was intended to avoid precluding a claimant from
obtaining redress for his or her injury merely because
coverage for the injury was provided by some collateral
source, e.g. insurance.” Beechwoods Flying Service,
Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350,
352 (Pa. 1984); see also id. at 353 (the rule is “intended
to prevent a wrongdoer from taking advantage of the
fortuitous existence of a collateral remedy”); Denardo v.
Carneval, 444 A.2d 135, 140 (Pa. Super. 1982)
(“Pennsylvania law is clear; the victim of a tort is entitled
to the damages caused by the tortfeasor’s negligence
regardless of compensation the victim receives from other
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sources”), citing, inter alia, Boudwin v. Yellow Cab Co.,
188 A.2d 259 (Pa. 1963).
Griesser v. National R.R. Passenger Corp., 761 A.2d 606,
609 (Pa. Super. 2000).
Further, “when improperly admitted testimony may have
affected a verdict, the only correct remedy is the grant of a new
trial.” Id. at 608 (citing Collins v. Cooper, 746 A.2d 615, 620
(Pa. Super. 2000)).
Nigra v. Walsh, 797 A.2d 353, 356 (Pa. Super. 2002) (citations modified).
In the instant case, Deeds identifies, and the record confirms, several
instances in which Appellees elicited evidence of government benefits and
collateral sources of compensation to Deeds. At trial on October 31, 2013,
while cross-examining Deeds’ expert witness (certified life care planner3
Kathleen Corrigan, RN, CEN, CLCP), counsel for the Trustees elicited the
following:
[Counsel for the Trustees]: . . . It’s not your opinion that Miss
Renzulli is paying that out-of-pocket cost [for Deeds’
medications]? You don’t have that opinion, do you?
[Corrigan]: That she is paying for the medication?
[Counsel for the Trustees]: That they’re being charged the out-
of-pocket cost?
[Corrigan]: I believe Medicaid is paying for the medication.
____________________________________________
3
A certified life care planner reviews medical records and bills to
formulate an expert opinion projecting the future medical costs of an
individual over her lifetime. In the instant case, the parties also stipulated
that the “necessary and reasonable medical expenses for Naijah Deeds’ past
medical treatment is $2,227,312.66.” Notes of Testimony (“N.T.”),
10/31/2013, at 5-6.
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[Counsel for the Trustees]: Okay. And they don’t pay that
walk up pay out of their pocket price either, do they?
[Counsel for Deeds]: Objection, Your Honor. That’s not the
legal standard of what the plaintiff is entitled to recover,
and it’s a total collateral source rule and we have a
stipulation of what past medical costs are.
[The Court]: I’ll sustain in part, but it’s certainly okay to ask
how she determined what the costs are.
Notes of Testimony (“N.T.”), 10/31/2013, at 64-65. The court did not issue
any curative instructions to the jury. Later that same day, counsel for the
Trustees asked Nurse Corrigan “how the guarantee issue and the individual
mandate portions of President Obama’s Affordable Care Act will actually
affect the future care costs in this case[.]” Id. at 81. Counsel for Deeds
objected, and the trial court sustained the objection, but again, did not issue
a curative instruction or provide any context for the jury.
During closing argument on November 8, 2013, counsel for the
Trustees stated:
But here’s what’s critical, Ladies and Gentlemen, about Nurse
Corrigan. Every item that she claims that Miss Deeds has, Miss
Deeds already receives, except for a new house. She didn’t tell
you that Miss Deeds is lacking in a single care need; not one.
She has morning care, day care, afternoon care, overnight care,
that is already provided in an obviously caring house. She has
medical care, specialists, top rate schools, communication
boards. Everything Nurse Corrigan mentioned, Miss Deeds
already receives.
N.T., 11/8/2013, at 205. The overall effect of these comments was to
suggest that Deeds’ medical costs were being covered by Medicaid and the
Affordable Care Act, and that she did not require (and accordingly could not
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properly seek) any additional compensation. This is a patent violation of the
collateral source rule. In this case, the violation requires remand for a new
trial.
Whether remarks by counsel warranted a new trial requires a
determination based upon an assessment of the circumstances
under which the statements were made and the precaution
taken by the court and counsel to prevent such remarks from
having a prejudicial effect. It is the duty of the trial judge to
take affirmative steps to attempt to cure harm. However, there
are certain instances where the comments of counsel are so
offensive or egregious that no curative instruction can
adequately obliterate the taint.
Poust v. Hylton, 940 A.2d 380, 386 (Pa. Super. 2007) (citation and
emphasis omitted).
While the primary focus of the collateral source rule is to avoid
the preclusion or diminution of the damages otherwise
recoverable from the wrongdoer based on compensation
recovered from a collateral source, in some instances, the
violation of the collateral source rule can affect the jury’s
deliberation and decision on the issue of liability. As our
Supreme Court noted in Lobalzo v. Varoli, 185 A.2d 557 (Pa.
1962), in some cases where there is a violation of the collateral
source rule,
it is impossible to conjecture what influence the
erroneously admitted evidence on workmen’s
compensation and unemployment compensation, as well
as the misleading charge, had in bringing the jury to the
conclusion it reached. When an error in a trial is of such
consequence that, like a dash of ink in a can of milk, it
cannot be strained out, the only remedy, so that justice
may not ingest a tainted fare, is a new trial. The
defendants’ improper emphasis on the subject of an
assumed double or triple payment may well have caused
the jury to disbelieve the plaintiff with regard to his
testimony on the manner in which the accident occurred.
Id. at 561.
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Walsh, 797 A.2d at 360 (citations modified).
Instantly, the Trustees’ argument that Deeds’ medical needs are
currently being met may well have permitted Appellees impermissibly to
benefit from “the fortuitous existence of a collateral remedy.” Beechwoods
Flying Serv., Inc., 476 A.2d at 353. Although the trial court sustained
Deeds’ objections in the first two instances, it offered no curative or limiting
instructions, nor did it otherwise direct the jury as to how it could or should
evaluate the objectionable testimony. See Poust, 940 A.2d at 386. The
teachings of our case law are clear: such suggestions by the Trustees may
have improperly influenced the jury’s determination. See Walsh, 797 A.2d
at 260. On this record, we can have little confidence that the verdict as to
Appellees’ negligence vel non was unaffected by the collateral source
evidence and argument. Accordingly, the trial court erred in denying
Deeds’ motion for a new trial. See Maya, 97 A.3d at 1224. The ink was in
the milk; we cannot now extract it through magic or chemistry.
Inasmuch as we reverse and remand on the first issue, the prospect of
a new trial requires that we address Deeds’ remaining allegations of error.
In her second issue, Deeds contends that the trial court erred in permitting
separate counsel - - one representing the Trustees and one representing
HUP - - to examine witnesses and present arguments individually to the
jury, despite the fact that the Trustees were not an active party in the
litigation and despite the fact that the Trustees did not appear on the verdict
sheet. Deeds argues that this had the effect of “allowing the lone defendant
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on the verdict slip to present two separate closing arguments and to
examine witnesses as though the case involved two separately represented
defendants.” Deeds’ Brief at 35. The trial court stated:
[Deeds] fails to demonstrate any specific prejudice that resulted
from the presence of two defense lawyers. Although Judge
DeVito refused to remove counsel for the Trustees, he restricted
cumulative questioning and limited counsel for the Trustees to
questions related to the allegations against the Trustees[’]
employee, Dr. Ural. The presence of two separate defense
counsel in and of itself cannot constitute reversible error.17
17
This [c]ourt cannot find anywhere in the record where
the Trustees were dismissed as a party. If the Trustees
remained a party, they were entitled to representation. If
they did not remain in the case, there is still no error since
[Deeds] points to no particular question by Defense
Counsel that was improper or duplicative.
T.C.O. at 5 (one footnote and record citation omitted). We disagree with the
learned trial court. Our review of the trial transcript reveals a deficiency in
that court’s description of the Trustees’ participation. Under the
circumstances, we are constrained to conclude that the trial court abused its
discretion when it permitted counsel for the Trustees to remain.
After the first day of trial, once the jury was excused, Deeds’ counsel
challenged the propriety of allowing multiple advocates for the defense:
[Counsel for the Trustees]: We have a stipulation that all the
people who treated Tamika Peterson were the employees—
I’m sorry, were the agents of the Hospital of the University
of Pennsylvania.
* * *
[Counsel for Deeds]: Okay. But, in other cases that we’ve
have [sic], so we can just give the [c]ourt a reference, and
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in answers to interrogatories, they say that the Hospital of
University of Pennsylvania is an unincorporated
sub[div]ision of the Trustees of the University of
Pennsylvania.
Essentially, Your Honor, my belief would be, since
everybody worked just for the Hospital of University of
Pennsylvania, there should be one attorney representing
the defendants in this matter. The defendants shouldn’t
get two openings, two cross-examinations, two closing[s],
and maybe even tonight with Doctor Fox, a direct and a
cross, okay.
I think there should be one attorney for the hospital. They
all work for the hospital. The hospital is a division of—it
says an unincorporated division of the Trustees of the
University of Pennsylvania.
You shouldn’t get two bites at the apple because they
decide to say, we’re different people.
* * *
I think, Your Honor, there should be one lawyer for the
defendants in this case. The defendants have agreed in a
stipulation that we read to the [c]ourt this morning and
put on the record that they all work for HUP and, at best,
[Dr.] Ural is an employee of the Trustees.
I don’t think being an employee of the Trustees necessarily
means he’s their agent. They didn’t stipulate that he was
an agent, and they want to keep two defendants in for
some coverage issues that they have with [the Medical
Care Availability and Reduction of Error Act (“MCARE”)].
N.T., 10/29/2013, at 163-66.
Counsel for HUP challenged the timing of Deeds’ objection, arguing
that “[i]f this was something that [Deeds] had an issue with, counsel needs
to bring this up before.” Id. at 168. Counsel for the Trustees maintained
that Deeds’ concern was raised too late, and argued that the Trustees and
HUP are “two separate entities” and that the stipulation “was for coverage
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reasons.” Id. at 169. Counsel for Deeds disagreed, asserting that the issue
could not have been raised earlier because Dr. Ural’s employment status had
been left opaque by the fact that the Trustees had not “answer[ed]
interrogatories or answer[ed] the complaint in any kind of fair way.” Id. at
171.
The trial court agreed with Appellees, stating:
It should have been raised pre-trial because the jury has already
heard about who [counsel for the Trustees] represents in his
opening to the jury.
I think [counsel for HUP] is correct. It’s waived, it has not been
raised prior to trial.
Id. Thereafter, counsel for the Trustees remained an active participant in
the trial, and was permitted to examine witnesses and to present closing
arguments. Nonetheless, when the case was sent back with the jury, only
HUP appeared on the verdict slip.
Pursuant to Pa.R.C.P. 230, a plaintiff may declare a voluntary nonsuit
to terminate litigation against a defendant once trial has commenced. 4 In
this case, however, counsel for Deeds did not declare a voluntary nonsuit
against the Trustees. Nor did Deeds identify any other procedural
____________________________________________
4
“Pa.R.C.P. 230 declares a voluntary nonsuit to be the exclusive
method of voluntary termination by a plaintiff during trial; that it may not be
suffered without leave of court after plaintiff has rested his case; and that it
is not permissible at all after the close of all of the evidence.” Deigan v.
Deigan, 232 A.2d 227, 229 (Pa. Super. 1967).
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mechanism to remove the Trustees prior to submission of the verdict slip,
which only named HUP. The trial court’s conclusion that the Trustees were
not dismissed as a party is correct. See T.C.O. at 5.
Pursuant to Pa.R.C.P. 223(2), the trial court may “[l]imit[] the number
of attorneys representing the same party or the same group of parties, who
may actively participate in the trial of the case or may examine or cross-
examine a witness or witnesses[.]” Pa.R.C.P. 223(2).
Under Rule 223 of the Pennsylvania Rules of Civil Procedure,
local courts are empowered to make and enforce rules regulating
the number and length of addresses to the jury. . . . Further, it
has long been established that the addresses of counsel to the
jury are especially subject to the regulatory powers of the trial
judge. So long as no clear abuse of discretion exists or rights of
due process are violated, an appellate court should not interfere.
Burish v. Digon, 206 A.2d 497, 499 (Pa. 1965).
In Burish, which involved cross claims for comparative negligence in a
car accident, our Supreme Court found no error or abuse of discretion in the
trial court’s decision to limit Burish’s counsel to one closing argument despite
the fact that Burish was separately represented by counsel as an individual
and by counsel for his insurance company because:
The cross actions consolidated for trial arose out of the same
facts and involved identical parties. Burish received the same
treatment as his opposing litigant. None gained special
advantage over the other. Burish was represented by [ ] both
counsel as an individual, even though one may have been
present to protect the interests of a company carrying liability
insurance on his automobile. The fact that his counsel could not
agree between themselves as to what the closing argument
should include should not vitiate Digon’s fairly won verdict. It
must be further noted that if the second counsel were permitted
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to argue, it was his declared purpose to maintain that both
drivers were guilty of negligence and, therefore, neither should
recover.
Burish, 206 A.2d at 499.
At the trial of the instant case, the Trustees argued that they remained
an essential party because of coverage questions under MCARE. N.T.,
10/29/2013, at 163-66, 169. Under similar circumstances in Burish, supra,
our Supreme Court determined that the trial court properly limited the two
attorneys with similar interests (one of which was financial coverage), to a
single closing argument. Burish, 206 A.2d at 499. Here, the facts and
claims pleaded against HUP and the Trustees were identical. Moreover, HUP
and the Trustees had asserted no cross-claims against one another. HUP
and the Trustees shared expert witnesses as well. They were members of
“the same group of parties,” and the matter of coverage alone did not
require counsel for the Trustees’ active participation. See Pa.R.C.P. 223(2);
Burish, 206 A.2d at 499. There were in fact mechanisms for removing the
Trustees once trial commenced. Contrary to the trial court’s assertion that
“[i]f the Trustees remained a party, they were entitled to representation,”
T.C.O. at 5, the trial court had discretion to limit trial participation by
counsel for the Trustees.
We are unable to agree with the trial court’s assertion that Deeds “fails
to demonstrate any specific prejudice that resulted from the presence of two
defense lawyers” because the court “limited counsel for the Trustees to
questions related to the allegations against the Trustees[’] employee, Dr.
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Ural” and “[Deeds] points to no particular question by Defense Counsel that
was improper or duplicative”. T.C.O. at 5. As discussed above, counsel for
the Trustees transgressed the collateral source rule on at least three
occasions, transgressions which form the basis for the award of a new trial in
this case. See Walsh, 797 A.2d at 360. The Trustees’ questions, which
involved improper inquiries into Deeds’ existing financial coverage for her
medical needs, went well beyond the scope of Deeds’ allegations of
negligence against Dr. Ural. See N.T., 10/31/2013, at 64-65, 81. Hence it
cannot be maintained that the active and duplicative participation of counsel
for the Trustees caused no prejudice to Deeds. Cf. T.C.O. at 5. The trial
court abused its discretion by permitting counsel for the Trustees and
counsel for HUP effectively to “tag team” Deeds at trial while representing
the same interest. See Burish, 206 A.2d at 499.
Finally, inasmuch as we order a new trial, we must address Deeds’
contention that the trial court erred and abused its discretion by “permit[ing]
Dr. Samuel Parry, the attending physician for [Deeds’] c-section delivery [on
January 20, 2001], to offer expert opinion testimony about the care the birth
mother received from others two days earlier on the mother’s previous visit
to HUP’s [Perinatal Evaluation Center (‘PEC’)].” Deeds’ Brief at 40.
Specifically, Appellees “did not identify Dr. Parry as an expert witness, nor
was he identified in [Appellees’] answers to interrogatories as a treating
physician who would be providing opinion testimony” but nonetheless “asked
his opinion concerning whether [Deeds’] mother had preeclampsia on
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January 18th, the equivalent of asking him as to whether or not [Appellees]
violated the standard of care by not diagnosing [Deeds’] mother with
preeclampsia on January 18th.” Id. at 41-42. After careful review, we
disagree.
Our standard of review for evidentiary rulings is narrow:
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.
The admissibility of expert testimony is soundly committed to
the discretion of the trial court, and the trial court’s decision will
not be overruled absent a clear abuse of discretion.
Polett v. Public Communs., Inc., 83 A.3d 205, 218-19 (Pa. Super. 2013)
(citations omitted).
“[T]he division [sic]whether testimony constitutes fact or opinion may
be difficult, for there is no litmus test for fact versus opinion.” Bucchianeri
v. Equitable Gas Co., 491 A.2d 835, 839 (Pa. Super. 1985) (internal
quotation marks omitted). “[T]echnical expertise does not ipso facto convert
a fact witness, who might explain how data was gathered, into an expert
witness, who renders an opinion based on the data.” Branham v. Rohm &
Haas Co., 19 A.3d 1094, 1110 (Pa. Super. 2011).
A pre-trial report by a non-party expert serves to inform the
opposing side of the identity of a party’s experts and the
conclusions of the experts in order to prevent unfair surprise and
prejudice at trial. However, a physician who is also a defendant
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may testify as a fact witness in his own behalf without the prior
filing of an expert’s report.
Havasy v. Resnick, 609 A.2d 1326, 1333 (Pa. Super. 1992). “Fact
testimony may include opinion or inferences so long as those opinions or
inferences are rationally based on the witness’s perceptions and helpful to a
clear understanding of his or her testimony.” Brady by Brady v. Ballay,
704 A.2d 1076, 1082 (Pa. Super. 1997).
In the instant case, Dr. Parry treated Deeds’ mother, Tamika Peterson,
on November 27, 2000, when she initially presented to HUP with back pain.
Dr. Parry did not see Peterson on January 18, 2001, when she complained of
headache, uterine contractions, and blurred vision, but was sent home.
However, Dr. Parry was the attending physician on January 20, 2001, when
Peterson suffered a placental abruption and Deeds was delivered by
emergency caesarian section. Prior to Dr. Parry’s testimony, Deeds
objected, arguing:
Doctor Parry . . . did not see the patient on [January] 18th, did
not participate in the care on the 18th, and Doctor Parry will start
talking about the care that took place on the 18th is not needed
[sic].
I’ve asked for an offer of proof and counsel told me well, he’s
going to talk about how the PEC worked and how the PEC was
set up and how people were assigned to the PEC. We have
already heard from every defense witness with the exception of
Doctor Schwartz, who just left, about the PEC, how it was
working, how it was set up.
So, this is nothing but repetitive testimony by someone who is
not there during any of the critical events that occurred.
* * *
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So, I have to wonder, Your Honor, what he is going to testify to.
If he is going to testify about the care that he rendered on the
20th, and the 21st, and the discharge summary that he wrote,
then I think that he is a treating physician.
N.T., 11/6/2013 (Morning Session), at 113-15. After hearing from
Appellees, the court held that Dr. Parry would be permitted to “testify about
his contacts with Tamika Peterson,” id. at 127, and to the extent that Dr.
Parry relied upon notes in Peterson’s file from the January 18, 2001 visit in
order to diagnose the placental abruption on January 20, he would be
permitted to so testify. Id. at 134. Thereafter, Dr. Parry was sworn in
without being qualified as an expert witness. N.T., 11/6/2013 (Afternoon
Session), at 7. Dr. Parry testified that he diagnosed Peterson with a
placental abruption on January 20, and that after the emergency caesarian
section, her blood pressure remained high. Id. at 60-61. He then explained
as follows:
So, otherwise, I thought Ms. Peterson was doing well. So I
wrote routine post-op care. And now we have to from this
point on make a decision why we had these elevated
pressures because if I do think it’s pre-eclampsia, pre-
eclampsia after delivery, before delivering any time can
lead to major medical problems for the mother. It can
affect the liver, it can affect the kidneys. It can cause a
woman to have a seizure. It can cause stroke.
One of the major things it does is causes seizure. Pre-
eclampsia then becoming eclampsia. When a woman has
a seizure and if I think a woman has pre-eclampsia, I have
to give her medicine to prevent a seizure which is
magnesium sulfate. They hate that. It makes them feel
weak like they have the flu. It’s not a nice drug to give a
woman. I don’t give it to any woman that I have any
suspicion of pre-eclampsia. We have to know for sure,
does she have it or not. If she has, she has to get
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magnesium sulfate for the next day to prevent her from
having a seizure.
[Counsel for the Trustees]: Doctor, if a patient truly has pre-
eclampsia and doesn’t get magnesium sulfate, what could
happen?
[Parry]: She could have a seizure.
[Counsel for the Trustees]: Does any of that happen?
[Parry]: No.
Id. at 62-63. Dr. Parry described the monitoring and lab work performed to
satisfy his diagnosis that Ms. Peterson did not have preeclampsia, and stated
that he successfully treated her pregnancy-induced hypertension with
magnesium sulfate. Id. at 63-66. Thereafter, counsel for the Trustees
asked:
There is a distinction between—there is a mild pre-
eclampsia and a severe pre-eclampsia, right, Doctor? Did
she have either mild pre-eclampsia or severe pre-
eclampsia on January 20?
[Parry]: No.
[Counsel for the Trustees]: Did she have either mild pre-
eclampsia or severe pre-eclampsia on January 18?
[Parry]: No.
[Counsel for Deeds]: Objection.
[Counsel for the Trustees]: We went through the notes that he
reviewed from the two days before.
The Court: Overruled.
Id. at 66.
Deeds argues that Dr. Parry’s testimony that Deeds’ mother did not
have preeclampsia on January 18, 2001 expressed an expert opinion as to
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standard of care. However, Dr. Parry’s testimony that Peterson did not have
preeclampsia on January 18 was based on his treatment and observation of
Peterson, and was “helpful to a clear understanding of his . . . testimony.”
Brady, 704 A.2d at 1082. Although Dr. Parry discussed the basis for the
course of Peterson’s medical treatment and provided an explanation as to
how she received care at the PEC based on his experience as an attending
physician at the PEC, he did not render any opinion as to whether the PEC
violated a standard of care on January 18. Therefore, the trial court did not
err in admitting his testimony as a fact witness. See Polett, 83 A.3d at
218-19; see also Branham, 19 A.3d at 1110; Bucchianeri, 491 A.2d at
839. Hence, to the extent that this issue might arise upon retrial, we
observe that Deeds’ third issue would not merit relief on the present appeal.5
Having concluded that Deeds was irreparably prejudiced by Appellees’
violations of the collateral source rule and “tag team” representation at trial,
we reverse the judgment in favor of Appellees, and we remand for a new
trial.
Reversed and remanded for new trial. Jurisdiction relinquished.
Judge Lazarus joins the opinion.
Judge Strassburger files a concurring and dissenting opinion.
____________________________________________
5
Necessarily, we do not opine with respect to the permissibility at retrial
of questions or answers different than those challenged on this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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