Lloyd, S. v. Bell, K. ( 2015 )

J-A05030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA S. LLOYD AND ROBERT LLOYD, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
KEVIN J. BELL AND CLARENCE D. BELL,
JR.,
Appellees No. 1807 EDA 2014
Appeal from the Judgment entered May 13, 2014,
in the Court of Common Pleas of Chester County,
Civil Division, at No(s): 11-02039
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN: FILED MARCH 03, 2015
Spouses Sandra S. and Robert Lloyd, (“Mrs. Lloyd”, or collectively,
“Appellants”), appeal from the judgment entered against them and in favor
of Kevin J. Bell, (“Bell”)1. We affirm. Further, we deny Bell’s motion to
quash and/or dismiss this appeal for the reasons cited below.
In disposing of a prior appeal in this matter, we detailed the following
factual and procedural background:
On February 27, 2009, [Mrs.] Lloyd was involved in a motor
vehicle accident when Bell rear-ended the car [Mrs.] Lloyd was
driving. The parties dispute the force of impact. [Mrs.] Lloyd’s
airbag did not deploy, and her car was driven from the scene of
the accident. However, [Mrs.] Lloyd subsequently testified that
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1
As noted below, by stipulation of the parties, Clarence D. Bell, Jr., was
dismissed from this action prior to the commencement of trial and is not
involved in this appeal.
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the car was totaled. Following the accident, [Mrs.] Lloyd
received treatment for neck and back pain. Thereafter,
[Appellants] initiated this action, asserting [Mrs.] Lloyd suffered
injuries in the accident.
A jury trial commenced. [FN2: Prior to the
commencement of trial, Bell’s father and co-defendant, Clarence
D. Bell, was dismissed from this action by stipulation.] Bell
admitted negligence at trial but disputed [Mrs.] Lloyd’s claim of
injury, as [Mrs.] Lloyd had an extensive, pre-accident medical
history of back and neck problems.
The parties’ medical experts agreed that there was no
objective evidence that the accident exacerbated [Mrs.] Lloyd’s
physical condition. However, Jeffrey Friedman, M.D., who
testified on behalf of [Appellants], opined that [Mrs.] Lloyd
suffered from myofascial pain syndrome and fibromyalgia. Dr.
Friedman acknowledged that [Mrs.] Lloyd’s pain complaints were
subjective, but he concluded that the accident had aggravated
her condition.
Bell’s medical expert, David Glaser, M.D., disputed Dr.
Friedman’s diagnosis, suggesting that [Mrs.] Lloyd’s symptoms
were more appropriately explained by her pre-existing back and
neck conditions. Notes of Testimony (N.T.), 10/2/12, at 71-72.
Dr. Glaser also testified, in part, as follows:
Q: All right. Doctor, after the accident, you looked at a
copy of the emergency department records, correct?
A: I did.
Q: Could you tell us about that?
A: The emergency room records basically documented I
think what you all heard about, that she was driving, the
car hit from behind, she came in hours later. It diagnosed
her with having cervical sprain. Also mentioned the
shoulder contusion. There was some bruising as well
mentioned.
Id. at 60-61. Thereafter, Dr. Glaser acknowledged that the
“scrapes or contusions” seen in the emergency room “maybe”
were objective findings of injury. Id. at 68. Dr. Glaser
summarized his conclusions in the following manner:
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Q: Doctor, at the time you saw Mrs. Lloyd in 2012, do you
have an opinion as to whether she was suffering from any
accident related injury?
A: It was my opinion when I saw her she was not suffering
from any accident related injury within medical certainty.
…
Q: Even though there was nothing objective that you saw,
you leave open the possibility that [Mrs. Lloyd] could have
suffered an injury as a result of the accident?
[Appellants’ Counsel]: Objection. Leading.
T[rial] Court: Overruled.
Dr. Glaser: Yes.
Id. at 68-69 (formatting modified). In this context, Dr. Glaser
testified that it was “reasonable to consider” that [Mrs.] Lloyd
suffered a strain of her neck or back. Id. at 69. However, Dr.
Glaser testified further that no objective evidence of a strain
existed. Id. at 70. According to Dr. Glaser, strains that are not
viewable by MRI take approximately three months to heal. Id.
at 72. Dr. Glaser examined Lloyd on July 11, 2012, more than
three years after the accident. Id. at 45.
Following trial, the [trial court] instructed the jury on factual
cause. [Appellants] did not object to this instruction. However,
[Appellants] objected to the first jury interrogatory on the
verdict slip, which asked whether Bell’s negligence was a factual
cause in bringing about [Mrs.] Lloyd’s injuries. Counsel for
[Appellants] objected in the following manner:
[Appellants’ Counsel]: Secondly, we object to question
number one because we believe that [Bell’s] expert
testified there was some injury. And under those
circumstances, the case law is clear that the jury should
not be allowed to find that there was no injury in the case
because there’s injury coming from both experts in the
case.
Id. at 146. [The trial court] reviewed Dr. Glaser’s testimony and
overruled [Appellants’] objection. After deliberation, the jury
returned a verdict for the defense, answering the first
interrogatory in the negative, thus finding no causation.
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[Appellants] filed post-trial motions, alleging numerous
grounds for a new trial, including one that renewed [Appellants’]
objection to the verdict slip:
This Honorable Court committed prejudicial/harmful errors
of law and/or abused its discretion by permitting, over
objection, Question #1 of the Verdict Slip to permit the
jury to find that the negligence of [Bell] was not a factual
cause of harm to [Mrs.] Lloyd, where [Bell’s] medical
proof, including expert medical proof and [Appellants’]
medical proof, including expert medical proof, establish
that there was at least some injury to [Mrs.] Lloyd, caused
by the negligence of [Bell][.]
[Appellants’] Motion for Post Trial Relief, at 3. The trial court
granted a new trial on this ground, concluding that it had erred
in failing to instruct the jury that it must “award some type of
recovery.” See Order of Court, 2/11/13, at 2 n.1.
Lloyd v. Bell, 97 A.3d 799 (Pa. Super. 2014) (unpublished memorandum
filed February 14, 2014) at 1-5.
Bell timely appealed the trial court’s grant of a new trial, and
Appellants cross-appealed the trial court’s denial of the additional grounds
Appellants had raised for a new trial. We determined that Appellants’ cross-
appeal was not “properly before us” because the “trial court granted
[Appellants’] motion for a new trial, [and therefore, Appellants were] not …
aggrieved … and may not appeal the [trial] court’s order.” Id. at 2 citing
In re Estate of Pendergrass, 26 A.3d 1151, 1154 (Pa. Super. 2011) (“A
prevailing party is not ‘aggrieved’ and therefore, does not have standing to
appeal an order that has been entered in his or her favor.”) and citing
Pa.R.A.P. 501.
We further observed:
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According to Bell, the trial court erred in granting a new
trial because Dr. Glaser did not concede that Lloyd suffered an
accident-related injury. Rather, according to Bell, Dr. Glaser
merely acknowledged that it was possible Lloyd had suffered a
cervical strain. Bell contends that this distinction is significant
because an expert’s language regarding “possibilities” does not
establish the requisite degree of medical certainty, citing in
support Griffin v. Univ. of Pittsburgh Med. Ctr., 950 A.2d 996
(Pa. Super. 2008). Bell concludes that because Dr. Glaser did
not concede an injury to [Mrs.] Lloyd, the jury was free to return
a verdict of no causation. See Livelsberger v. Kreider, 743
A.2d 494 (Pa. Super. 1999); Henery v. Shadle, 661 A.2d 439
(Pa. Super. 1995), appeal denied, 668 A.2d 1133 (Pa. 1995).
Lloyd, supra, at 9-10.
In determining that the trial court erred in granting Appellants a new
trial, we explained:
Absent expert evidence conceding an injury to the plaintiff
that is sufficiently certain, the assessment of the jury must
prevail. [Criswell v. King, 834 A.2d 505, 512-513 (Pa. 2003)];
see also Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995)
(“[T]he jury is free to believe all, some, or none of the testimony
presented by a witness … up until the point at which [its] verdict
is so disproportionate to the uncontested evidence as to defy
common sense and logic.”). The trial judge must defer to this
assessment, decline to usurp the role of the jury as fact finder,
and deny the weight of evidence claim. Criswell at 512-13.
Accordingly, absent sufficient evidence, a trial court’s decision to
grant a new trial constitutes an abuse of discretion. Id.; see
also Huber, 58 A.3d at 775-777.
The question remains whether the defense conceded injury
in this case.
Where there is no dispute that the defendant is negligent
and both parties' medical experts agree the accident
caused some injury to the plaintiff, the jury may not find
the defendant's negligence was not a substantial factor in
bringing about at least some of plaintiff's injuries.
Andrews, 800 A.2d at 962 (citing Neison, 653 A.2d at 637);
see also Mano v. Madden, 738 A.2d 493, 497 (Pa. Super.
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1999). However, absent a concession of injury, “the fact finder
resolves conflicts in evidence.” Livelsberger [v. Kreider,] 743
A.2d [494,] 496 [(Pa. Super. 1999)] (distinguishing Neison);
see also Henery v. Shadle, 661 A.2d [439,] 442 [(Pa. Super.
1995)] (defense testimony acknowledging that plaintiff “may
very well have suffered” some injury did not constitute a
concession).
We have reviewed Dr. Glaser’s testimony in its entirety.
As we have set forth the relevant testimony above in detail, we
need not repeat it. Nevertheless, it is clear that Dr. Glaser
rejected Dr. Friedman’s diagnosis, concluding that [Mrs.] Lloyd
was not suffering from any accident-related injury when he
examined her. In his expert medical opinion, Dr. Glaser further
concluded that [Mrs.] Lloyd’s pre-existing conditions were
responsible for her ongoing discomfort. When asked on direct
examination whether it was “possible” that [Mrs.] Lloyd “could
have suffered an injury” in the accident, Dr. Glaser
acknowledged that it was “reasonable to consider” that [Mrs.]
Lloyd suffered a cervical strain. We conclude that Dr. Glaser’s
testimony fails to meet the requisite certainty to establish a
concession of injury. Griffin, 950 A.2d at 1003 (rejecting as
insufficient testimony suggesting the conduct of defendant’s staff
“more likely than not” caused an injury). Accordingly, Andrews
does not apply, and the case properly went to the jury to
determine causation. Livelsberger, 743 A.2d at 496.
In its order granting a new trial, the trial court indicated
that Dr. Glaser’s cross-examination testimony conceded an
injury to Lloyd’s neck. We find no support in the transcript for
this conclusion. The focus of Dr. Glaser’s cross-examination
testimony was upon the thoroughness with which he reviewed
[Mrs.] Lloyd’s medical history and his rejection of Dr. Friedman’s
diagnosis. Moreover, we disagree with the [trial] court’s
characterization of Dr. Glaser’s testimony to the extent it
concluded Dr. Glaser acknowledged a “probable neck strain.”
Dr. Glaser never testified to the probability of a cervical strain.
Nevertheless, testimony suggesting that an alleged injury was
“very highly probable” has similarly been rejected. Id. (citing,
e.g., Eaddy [v. Hamaty,] 694 A.2d [639,] 642 [(Pa. Super.
1997)] (rejecting an expert report that characterized an alleged
cause as “the most reasonable probability” for the injury).
The trial court also noted Dr. Glaser’s purported concession
that [Mrs.] Lloyd suffered scrapes and bruises. Again, we
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disagree. In recounting the manner in which he reviewed [Mrs.]
Lloyd’s medical records, Dr. Glaser merely acknowledged the
contents of the emergency room record, which mentioned “the
shoulder contusion,” “some bruising,” and a “cervical sprain.”
Dr. Glaser did not adopt the emergency room record as his
opinion, nor did he testify to a medical certainty that its contents
were correct. To the contrary, on cross-examination, Dr. Glaser
appeared to minimize such records’ importance, testifying that
the opinions of other doctors as contained in their reports are
“great to know,” but that “they confirm my opinions … they don’t
change my opinions.” N.T. at 83. Therefore, this testimony
does not constitute a concession of injury. Id.
After reviewing Dr. Glaser’s testimony in its entirety, we
discern no error in the [trial] court’s stewardship of this trial.
The trial court properly overruled [Mrs.] Lloyd’s objection to the
verdict slip interrogatory and properly submitted the question of
causation to the jury. Accordingly, mindful of our standard of
review, we must reverse the court’s order granting a new trial.
Huber, 58 A.3d at 776; Griffin; Criswell. On remand, the
parties may praecipe for the entry of judgment on the jury
verdict.
Lloyd, supra, at 13-16 (footnote omitted).
Appellants did not petition for allowance of appeal from our February
14, 2014 reversal of the trial court’s order granting Appellants a new trial.
Upon remand, on May 13, 2014, Appellants praeciped for the entry of
judgment. On the same date, judgment was entered in favor of Bell and
against Appellants. On June 11, 2014, Appellants filed a timely notice of
appeal. On June 16, 2014, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal, which Appellants filed on July
2, 2014. On July 23, 2014, the trial court issued its Pa.R.A.P. 1925(b)
opinion which stated “[u]pon review of [Appellants’] statement, it appears to
be almost identical to the [c]oncise [s]tatement filed in the 2013 [a]ppeal,
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with some minor additions to the issues. As the issues are identical, I have
nothing to add to the June 5, 2013 Opinion I authored on Appellants’ 2013
[a]ppeal … and direct your attention to pages 7-10 [of the June 5, 2013
opinion].” Trial Court Opinion, 7/23/14, at 1.
On August 7, 2014, Bell filed a motion to quash and/or dismiss the
appeal, contending that Appellants’ “issues raised on appeal were decided
either directly or implicitly in the first appeal[.]” Motion to Quash and/or
Dismiss Appeal, 8/7/14, at 1. On September 15, 2014, Appellants filed an
answer to Bell’s motion. On October 3, 2014, we denied Bell’s motion
without prejudice to Bell to renew his request with this merits panel. Upon
consideration, we deny Bell’s motion to quash and/or to dismiss this appeal.
In our February 14, 2014 memorandum, we specifically determined that
Appellants’ issues could not be properly before us until Appellants became
aggrieved parties. See Lloyd, supra, at 16. Appellants became aggrieved
parties on May 13, 2014, following the entry of the judgment in Bell’s favor
and against Appellants. Therefore, we do not find that under the particular
circumstances of this case that Appellants are precluded from raising their
issues before this panel.
Appellants present the following issues for our review:
1. Whether the trial court prejudicially/harmfully erred and/or
abused its discretion by permitting defense counsel to cross-
examine [Mrs. Lloyd] by reading to the jury and exhibiting to the
jury by overhead screen projection for the jury's reading —
hearsay medical records of [Mrs. Lloyd] — where these medical
records were not admitted into evidence and included diagnostic
studies where the opinions and conclusions of the radiologists
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were read by defense counsel to the jury and exhibited by
defense counsel to the jury for their reading during cross-
examination?
2. Whether the trial court prejudicially/harmfully erred and/or
abused its discretion by permitting the defense medical expert to
testify as to the substance of any number of [Mrs. Lloyd’s]
medical records, both post and prior to the accident, where none
of those medical records were included in the defense expert
report, in violation of Pa.R.C.P. 4003.5 and further where
defense expert did not testify that he relied upon these hearsay
medical records for any basis of his medical opinions?
3. Whether the trial court prejudicially/harmfully erred and/or
abused its discretion by permitting the defense medical expert to
challenge the nature and legitimacy of the diagnoses of [Mrs.
Lloyd’s] accident-related injuries without any mention of these
diagnoses in the defense expert report, nor any mention of any
challenge as to the nature of these diagnoses in the defense
medical report, in violation of Pa.R.C.P. 4003.5?
4. Whether the trial court prejudicially/harmfully erred and/or
abused its discretion by permitting defense counsel to phrase
questions and make argument by reading, and/or exhibiting, the
substance of [Mrs. Lloyd’s] medical records, including diagnostic
records, predating the accident, as well as permitting the
defense medical expert to testify as to the substance of these
pre-accident records, where the defense medical expert
admittedly does not attribute any such past medical condition of
[Mrs. Lloyd’s] to [Mrs. Lloyd’s] post-accident medical condition?
5. Whether the trial court prejudicially/harmfully erred by
refusing to charge the jury on the Pennsylvania Standard Jury
instruction 7.90 (Civ. 4th Ed.) — Other Contributing Causes?
6. Whether the trial court prejudicially/harmfully erred by
refusing to remove the word "the" from the first jury
interrogatory; suggesting to the jury that they had to find one
specific set or version of the injuries as opposed to any injuries
or damage that they may have found from the totality of the
evidence?
Appellants’ Brief at 5-6.
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Appellants’ first, second, third and fourth issues challenge the trial
court’s evidentiary rulings which allowed Bell’s counsel to cross-examine
Mrs. Lloyd, and directly examine Bell’s medical expert, regarding, and in
reference to, Mrs. Lloyd’s pre-accident medical records and diagnoses, and
which allowed Bell’s medical expert to challenge Mrs. Lloyd’s post-accident
diagnosis of myofascial pain syndrome and fibromyalgia. In reviewing these,
we recognize:
[O]ur standard of review when faced with an appeal from
the trial court’s denial of a motion for a new trial is whether the
trial court clearly and palpably committed an error of law that
controlled the outcome of the case or constituted an abuse of
discretion. In examining the evidence in the light most favorable
to the verdict winner, to reverse the trial court, we must
conclude that the verdict would change if another trial were
granted. Further, if the basis of the request for a new trial is the
trial court’s rulings on evidence, then such rulings must be
shown to have been not only erroneous but also harmful to the
complaining parties. Evidentiary rulings which did not affect the
verdict will not provide a basis for disturbing the jury’s
judgment….
Moreover, the admission or exclusion of evidence is within
the sound discretion of the trial court. In reviewing a challenge
to the admissibility of evidence, we will only reverse a ruling by
the trial court upon a showing that it abused its discretion or
committed an error of law.
Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008), affirmed, 11
A.3d 924 (Pa. 2011) (citation omitted).
Additionally, we are mindful that:
The scope and manner of cross-examination are within the
sound discretion of the trial court and will not be overturned
unless the court has abused that discretion.
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Commonwealth v. Nunn, 947 A.2d 756, 761 (Pa. Super.2008)
(citations omitted), appeal denied, 947 A.2d 756 (Pa. Super.
2008). Further, we have generally defined the scope of cross-
examination to include “inferences, deductions, or conclusions
which may be drawn therefrom, which explain or destroy the
effect of direct testimony.” Nunn, 947 A.2d at 762 (citation
omitted). []
Pa.R.E. 611 provides in relevant part:
Mode and order of interrogation and presentation
(a) Control by [the] court. The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for
the ascertainment of the truth, (2) avoid needless
consumption of time and (3) protect witnesses from
harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination of
a witness other than a party in a civil case should be
limited to the subject matter of the direct examination and
matters affecting credibility; however, the court may, in
the exercise of discretion, permit inquiry into additional
matters as if on direct examination. A party witness in a
civil case may be cross-examined by an adverse
party on any matter relevant to any issue in the
case, including credibility, unless the court, in the
interests of justice, limits the cross-examination with
respect to matters not testified to on direct examination.
Pa.R.E. 611(a) and (b).
In re M.W., 972 A.2d 1213, 1216 (Pa. Super. 2009) (emphasis supplied) 2.
Instantly, the trial court properly allowed references to Mrs. Loyd’s
medical records, her pre-accident medical history, and her prior diagnoses
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2
While the language of Pa.R.E. 611(a) was amended in 2013, and again in
2014, the version of Pa.R.E. 611 cited in In re M.W. was in effect at the
time of the trial in this case.
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during, inter alia, Bell’s counsel’s cross-examination of Mrs. Lloyd, and
during the testimony of Bell’s expert. A key contention at trial was the
nature, extent, and causation of Mrs. Lloyd’s post-accident injuries given her
“extensive, pre-accident medical history of back and neck problems.”
Lloyd, supra, at 3. We find that Mrs. Lloyd, in this personal injury action,
testifying as a “party witness in a civil case”, was subject to cross-
examination by Bell, “an adverse party,” regarding her pre-existing
conditions which were “relevant” to the issues in the case, and that said
examination properly included references to her prior medical records and
conditions. M.W., 972 A.2d at 1216; Pa.R.E. 611(b); see also American
Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa. Super. 2005)
(“Admission of evidence is within the sound discretion of the trial court and
we review the trial court's determinations regarding the admissibility of
evidence for an abuse of discretion.”).
Appellants’ own counsel during his opening statement commented on
Mrs. Lloyd’s prior medical history. Appellants’ counsel asserted that Dr.
Jeffrey Friedman, Appellants’ medical expert and one of Mrs. Lloyd’s treating
physician’s following the accident, would “testify that [Mrs. Lloyd’s] general
state of health was good” at the time of the accident. N.T., 10/1/12, at 18.
Appellants’ counsel further informed the jury that Mrs. Lloyd “had back
surgery 20 years ago, and she had recovered from that low back surgery …
She also had a condition that was diagnosed in 2005, and D[r]. Friedman
will talk to you about this.” Id. During Mrs. Lloyd’s direct examination, Mrs.
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Lloyd denied having “problems doing” household chores prior to the
accident. Id. at 53. She further testified that she “d[id]n’t recall having any
problems” before the collision. Id. at 56. While Mrs. Lloyd admitted
receiving a diagnosis and medication “[b]ack in 2006” for fibromyalgia, Mrs.
Lloyd testified that said condition “just kind of went away” and that she was
“[n]ot … aware of” suffering “from that fibromyalgia at all at the time of this
accident[.]” Id. at 57. Appellants’ counsel specifically asked Mrs. Lloyd
about her 2008 cervical “MRI by Doctor Haplea.” Id. at 57-58. When asked
if “any problems with [her] neck” were found, Mrs. Lloyd answered “[n]o.”
Id. at 58. When the trial court inquired “[a]re we going to have this covered
by Dr. Friedman’s testimony[,]” Appellant’s counsel replied “[y]es[,]” and
further expressed, “I’m anticipating it might be covered as well on cross[-
examination].” Id. at 58. Accordingly, we are not persuaded by Appellants’
arguments that Bell improperly relied on and referenced Mrs. Lloyd’s medical
records during Mrs. Lloyd’s cross-examination, especially when Bell’s
questions, inter alia, were germane to challenging Mrs. Lloyd’s credibility
regarding her recollection and understanding of her medical history, records,
and conditions. See generally id. at 66-90. Our assessment is further
buttressed by Appellants’ counsel’s indication to the trial court that during
his redirect examination of Mrs. Lloyd, he would be using Mrs. Lloyd’s
medical records “to the same extent [Bell’s counsel] used them on [cross-
examination].” Id. at 90.
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Further, based on our careful review of the record, we are not
persuaded by Appellants’ arguments that the trial court erred or abused its
discretion in allowing Bell’s expert to reference and be questioned about Mrs.
Lloyd’s prior medical records and conditions. We recognize:
A trial court is vested with wide discretion in deciding
whether to allow the admission of expert testimony into
evidence, and is not subject to reversal absent a clear abuse of
discretion. Allegheny Ludlum Corp. v. Mun. Auth. of
Westmoreland County, 659 A.2d 20 (Pa.Cmwlth.1995). Only
when the admission of the testimony is harmful or prejudicial to
the party complaining will reversible error exist. Id.
Discovery of information concerning expert testimony is
governed by Pa. R.C.P. No. 4003.5. That Rule states, in relevant
part:
[T]he 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 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.
Pa. R.C.P. No. 4003.5(c). The explanatory comment to Rule
4003.5(c) explains the Rule is intended to “prevent the
submission of incomplete or ‘fudging’ of reports which would fail
to reveal fully the facts and opinions of the expert or his grounds
therefor[e]...” Pa. R.C.P. No. 4003.5(c), Explanatory Comment-
1978.
The primary purpose of the Rule is to avoid unfair surprise
to an adversary concerning the facts and substance of an
expert's proposed testimony. United States Mineral Prods. Co.
The question of whether the permissible limits of testimony
under the Rule were violated is determined on a case by case
basis, and the essence of the inquiry is fairness. Id. The
question is whether the discrepancy between the expert's pre-
trial report and his trial testimony is of a nature that would
prevent the adversary from preparing a meaningful response, or
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which would mislead the adversary as to the nature of the
appropriate response. Id. The opposing party must suffer
prejudice as a result of the testimony going beyond the fair
scope of the expert's report before admission of the testimony is
considered reversible error. Id.
Thus, in determining whether an expert's trial testimony
falls within the fair scope of his pre-trial report, a trial court must
determine whether the report provides sufficient notice of the
expert's theory to enable the opposing party to prepare a
rebuttal witness. Feden v. Consol. Rail Corp., 746 A.2d 1158
(Pa. Super. 2000). Under this analysis, an expert's trial
testimony may be found unobjectionable whenever it could
reasonably have been anticipated from the content of the
expert's pre-trial report. Butler v. Kiwi, S.A., 412 Pa.Super. 591,
604 A.2d 270 (1992). An expert's trial testimony that
constitutes a reasonable explanation or even an enlargement of
the expert's written words may be deemed to fall within the
coverage of “fair scope.” Hickman v. Fruehauf Corp., 386
Pa.Super. 455, 563 A.2d 155 (1989); Wilkes-Barre Iron v.
Pargas of Wilkes-Barre, 348 Pa.Super. 285, 502 A.2d 210
(1985).
Moreover, where a plaintiff introduces certain evidence in
his case-in-chief, he cannot later deprive his opposition of the
privilege of denying it. See Leaphart v. Whiting Corp., 387
Pa.Super. 253, 564 A.2d 165 (1989). Thus, an expert's opinion
offered in response to other testimony presented at trial need
not be addressed in the expert's report. Allegheny Ludlum;
Earlin v. Cravetz, 264 Pa.Super. 294, 399 A.2d 783 (1979).
Daddona v. Thind, 891 A.2d 786, 805-806 (Pa. Cmwlth. 2006).
Here, in rebutting Appellants’ claims of error, the trial court explained:
[Appellants] object to my rulings regarding the scope and
nature of Dr. Glaser's testimony.
Pa. R.C.P. 4003.5 governs resolution of these claims. Rule
4003.5(c) sets forth what is commonly referred to as the "fair
scope rule."
The rule:
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“…favors the liberal discovery of expert witnesses and
disfavors unfair and prejudicial surprise."
Jones v. Constantino, 631 A.2d 1289, 1294
(Pa. Super. 1993)
***
I invite your attention to N.T., October 2, 2012, pgs. 8-15,
where the scope of Dr. Glaser's anticipated testimony was
discussed. I also invite your attention to Dr. Glaser's report of
July 11, 2012, Exhibit D-10, "Records Reviewed” (p. 3) and
"Comments” (p. 4).
I believe that given [Mrs. Lloyd’s] medical history
which both parties had, it would come as no surprise to
experienced counsel that the defense would attempt to
use those records to show that [Mrs. Lloyd’s] current
complaints related to her prior history, not the incident.
Thus, the surprise element disfavored by the rule was not
violated.
[Appellants] also assert that Dr. Glaser's testimony
as to the contents of medical reports was impermissible
hearsay. Again, I disagree.
Expert witnesses, like any other witness, are subject to the
"hearsay evidence rule." What was said in Woodward v.
Chatterjee, 827 A.2d [433,] 444 [(Pa. Super. 2003)], is
applicable here:
As an exception to the rule against hearsay, “it is
well understood that medical experts are permitted
to express opinions which are based, in part, upon
reports which are not in evidence, but which are
customarily relied upon by experts in the practice of
the profession." Primavera v. Celotex Corp., 415
Pa.Super. 41, 608 A.2d 515, 518-19 (1992). We
recognize that a physician will often base his or her
diagnosis on information obtained through other
sources such as statements from patients, nurses'
reports, hospital records, and laboratory tests. Id. at
520. "The fact that experts reasonably and regularly
rely on this type of information merely to practice
their profession lends strong indicia of reliability to
source material, when it is presented through a
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qualified expert's eyes.” Id. "[W]hen the expert
witness has consulted numerous sources, and uses
that information, together with his own professional
knowledge and experience, to arrive at his opinion,
that opinion is regarded as evidence in its own right
and not as hearsay in disguise." Id. (quoting United
States v. Williams, 447 F.2d 1285, 1290 (5th Cir.
1971.)).
[Appellants] further argue that Dr. Glaser merely parroted
what the extra judicial statements said without connecting them
to his opinion. Again, Woodward is helpful:
An “expert” should not be permitted simply to repeat
another's opinion or data without bringing to bear on it his
own expertise and judgment. Obviously, in such a
situation, the non-testifying expert is not on the witness
stand and truly is unavailable for cross-examination. The
applicability of the rule permitting experts to express
opinions relying on extrajudicial data depends on the
circumstances of the particular case and demands the
exercise, like the admission of all expert testimony, of the
sound discretion of the trial court. Where … the expert
uses several sources to arrive at his or her opinion, and
has noted the reasonable and ordinary reliance on similar
sources by experts in the field, and has coupled this
reliance with personal observation, knowledge and
experience, we conclude that the expert’s testimony
should be permitted.
Id. at 521 (footnote omitted).
As evidenced by Dr. Glaser's testimony, he noted the
records he reviewed and how his opinion was impacted by those
records. His testimony does not merely parrot the other medical
records, it was clear they were used in forming his opinion.
See N.T., October 2, 2012, pgs. 53-65.
Trial Court Opinion, 6/5/13, at 7-9 (footnotes omitted) (emphasis supplied).
The trial court’s reasoning is supported by the record. Significantly,
we previously and expressly determined that “[a]fter reviewing Dr. Glaser’s
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testimony in its entirety, we discern no error in the [trial] court’s
stewardship of this trial.” Lloyd, supra, at 16. Accordingly, based on our
careful examination of the record and consonant with Pa.R.E. 611, M.W.,
American Future Systems, Daddona, and the authorities cited therein,
we affirm the trial court’s evidentiary rulings and find that Appellants’ first,
second, third, and fourth issues are without merit.
In their fifth issue, Appellants contend that the trial court
“prejudicially/harmfully erred by refusing to charge the jury on the
Pennsylvania Standard Jury Instruction 7.90 (Civ. 4th Ed.) - Other
Contributing Causes.” In support of their claim, Appellants set forth the
foregoing jury instruction and reference the instruction’s “[s]ubcommittee
[n]ote.” Appellants’ Brief at 53. In so doing, Appellants discount that “we
are not bound by the explanatory notes contained within the Rules of Civil
Procedure.” See Gladstone Partners, LP v. Overland Enterprise, Inc.,
950 A.2d 1011, 1015 n.5 (Pa. Super. 2008) (internal citation omitted).
Appellants cite only a 1989 case for the general proposition that “[t]o be
reversible error, the jury instruction, or failure to provide such an
instruction, must be erroneous and harmful.” Appellants’ Brief at 54.
Significantly, Appellants fail to cite any binding precedent that supports their
position that the trial court erred in not giving this instruction under the
particular circumstances of this case.
Likewise, in their sixth issue Appellants contend that the trial court
erred “by refusing to remove the word ‘the’ from the first jury interrogatory;
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suggesting to the jury that they had to find one specific set or version of the
injuries as opposed to any injuries or damage that they may have found
from the totality of the evidence.” Appellants’ Brief at 54. Appellants only
dedicate 15 lines of text to this issue, and fail to cite a single case or other
legal authority. Their failure to develop and support their arguments with
pertinent jurisprudence effects a waiver of their fifth and sixth issues, and
we decline to reach them. See Giant Food Stores, LLC v. THF Silver
Spring Development, L.P., 959 A.2d 438, 444 (Pa. Super. 2008)
(“Appellant’s issue on appeal is waived because [Appellant] has failed to set
forth in its appellate brief any citation to legal authority pertaining to
[Appellant’s] argument”); see also Korn v. Epstein, 727 A.2d 1130, 1135
(Pa. Super. 1999) (“arguments not appropriately developed are waived”)
(emphasis in original) (internal citations omitted).
Judgment affirmed. Bell’s motion to quash and/or dismiss this appeal
denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2015
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