Talmadge, S. v. Ervin, F. ( 2020 )

J-A03023-20
2020 PA Super 176STEVEN L. TALMADGE, ADMINISTRATOR IN THE SUPERIOR COURT
OF THE ESTATE OF DEBRA ELIZABETH OF PENNSYLVANIA
TALMADGE, DECEASED AND STEVEN L.
TALMADGE, INDIVIDUALLY
Appellants
v.
FRANK H. ERVIN, R.PH., CARL'S DRUG
STORE, INC., NATHAN DERSTINE, D.O.,
AND GREENCASTLE FAMILY PRACTICE,
P.C.
Appellee No. 1070 MDA 2019
Appeal from the Order Entered June 3, 2019
In the Court of Common Pleas of the 39th Judicial District, Franklin County
Branch, Civil Division at No: 2013-04640
BEFORE: LAZARUS, STABILE, JJ., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED JULY 28, 2020
Appellant, Steven L. Talmadge, in his own right and as administrator of
the estate of decedent Debra Elizabeth Talmadge (“Decedent”), appeals from
the June 3, 2019 judgment entered in favor of Appellees, Frank H. Ervin
(“Ervin”), R.PH., Carl’s Drug Store, Inc. (“Carl’s”), Nathan Derstine, D.O. (“Dr.
Derstine”), and Greencastle Family Practice, P.C. (“Greencastle”). We vacate
and remand for a new trial.
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* Former Justice specially assigned to the Superior Court.
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The trial court recited the pertinent facts in its opinion denying post-trial
relief:
The instant medical malpractice action arises from the
untimely death of Debra Talmadge on November 29, 2011. At the
time of her death, [Decedent] was under the medical care and
supervision of [Dr. Derstine], a physician and partner at the
[Greencastle].
On November 22, 2012, [Decedent] presented at
[Greencastle] with complaints of nausea; she was prescribed and
began taking Phenergan in addition to her long-term prescription
for Lexapro. On November 25, 2011, five days prior to her death,
[Decedent] again sought treatment from Dr. Derstine. Based on
[Decedent’s] symptoms, Dr. Derstine suspected pneumonia and
prescribed Biaxin.
[Decedent’s] Biaxin prescription was later filled at [Carl’s],
by on-duty pharmacist Shane Clugston, under the supervision of
[Ervin].
Trial Court Opinion, 6/3/19, at 1-2 (footnotes omitted).
Several days later, Decedent passed away. Appellant filed this medical
malpractice action against all Appellees on November 19, 2013. Appellant
alleged that the interaction between Phenergan, Lexapro, and Biaxin triggered
a condition called prolonged QT syndrome that caused Decedent’s death. The
jury entered a defense verdict on February 13, 2019. Appellant filed a timely
post-trial motion alleging that the trial court erred in granting Appellee’s
pretrial motion in limine, and in finding Appellee’s expert witness to be
qualified to testify in this matter. The trial court denied Appellant’s post-trial
motions on June 3, 2019, and this timely appeal followed.
The following principles govern our review:
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[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.
Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 707 (Pa. Super.
2000), appeal denied, 785 A.2d 90 (Pa. 2001).
First, Appellant challenges the trial court’s order granting Appellees’ pre-
trial motion in limine to exclude a document contained with the Pennsylvania
State Police report and Appellant’s expert’s testimony as to that document.
We review evidentiary rulings for abuse of discretion. Czimmer v. Janssen
Pharmaceuticals, Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015). The
document in question (the “Pill Count Document”) was an unsigned,
handwritten note indicating that Decedent was prescribed twenty pills of
Biaxin, of which twelve remained in the bottle after her death. The Pill Count
Document was part of the police investigation file, produced in response to
Appellees’ subpoena. The matter arose during the pre-trial recorded
deposition testimony of Appellant’s expert witness, Dr. Douglass Peter Zipes.
The deposition was recorded for use at trial, and was introduced in redacted
form after Appellees’ successful motion in limine.
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Appellant wished to argue, based on the date of the prescription and the
date of death, that Decedent ingested all eight of the missing pills, which
would have been in accord with the prescribed dosage over that time.
Appellees’ argument was that there was no direct evidence Decedent took
more than one Biaxin; the pill that Appellant saw her ingest. The autopsy
toxicology screen did not reflect Biaxin present (though it is unclear whether
the person conducting the autopsy screened for Biaxin). N.T. Zipes
Deposition, 1/29/19, at 45. No one other than Appellant reported seeing
Decedent take a Biaxin, and he saw her take only one. Id. at 46.
The trial court ruled that the Pill Count Document was hearsay, and that
Appellant did not authenticate it under the business records exception (Pa.R.E.
806) because it was handwritten and unsigned.1 Nonetheless, the trial court
permitted Appellant to attempt to authenticate the Pill Count Document at trial
by calling the State Police Officer who prepared and produced the report.
Appellant did not do so.
Presently, Appellant argues that Appellees’ objections during the
deposition were insufficient to preserve this issue. Appellant relies on Pa.R.E.
103(a)(1), which requires the party opposing the evidence to make a timely
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1 We are cognizant that the law permits experts to rely on hearsay in forming
their opinions. See Klein v. Aronchick, 85 A.3d 487, 502 (Pa. Super. 2014),
appeal denied, 104 A.3d 5 (Pa. 2014). Here, Appellant’s expert did not rely
on the Pill Count Document in the preparation of his written report, and
Appellant does not argue that the expert was entitled to rely on hearsay in
giving his testimony.
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objection and state the grounds for it. The trial court concluded that counsel
for Dr. Derstine and Greencastle sufficiently preserved this issue in the
following exchange during Dr. Zipes’ examination by counsel for Dr. Derstine,
and Greencastle:
Q. Doctor, I’m looking at the two last paragraphs there
that indicate according to the report by Dr. Wayne Ross – and Dr.
Wayne Ross is the pathologist hired by the plaintiffs in his case,
correct?
A. I think that’s correct, yes.
Q. Not the pathologist that actually did the autopsy in
this case.
A. Yes.
Q. What you’re saying is in his report he believes Mrs.
Talmadge took one pill on the 25th, the day she got the
prescription of Biaxin, correct?
A. Yes.
Q. Two pills on the 26th and 27th and one on the 28th.
See that?
A. I do.
Q. Then she’s found dead in bed on the 29th?
A. Yes.
Q. So have you based your understanding of her taking
Biaxin on what Dr. Ross opined in his report?
A. Yes, I’ve been shown a police report, which I did
not have when I wrote my report that indicates that –
Q. Objection. Objection. Just stick to things you
had at the time of your report, Doctor.
N.T. Zipes Deposition, 1/29/19, at 39-40 (emphasis added).
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At the time of the foregoing objection—the only one Appellees lodged
on this issue during the deposition—counsel for Dr. Derstine and Greencastle
was unaware the Pill Count Document existed. This is evident from a
subsequent exchange:
Q. We can agree no pill count was done by anybody
involved in the autopsy?
A. I lost that last half. The pill count was done and –
Q. There was no pill count done, period?
A. I was shown a police report that had a pill count that
there were 12 pills left out of the 20.
Q. Where did you get that from?
A. Counsel.
Q. When did you get that?
A. Couple days ago.
N.T. Zipes Deposition, 1/29/19, at 46-47. Counsel for Dr. Derstine and
Greencastle did not pursue the matter further at that time.
Subsequently, counsel for Ervin and Carl’s followed up:
Q. Let me circle back to your testimony earlier about the
pill count and your testimony about how many pills [Decedent]
had taken. All right?
A. Yes, sir.
Q. I want to understand if we can go back to your report,
D27, page 4, can we pull that back up? The same paragraph that
was highlighted previously, the first one on that page, please. Can
you see that, doctor?
A. Yes.
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Q. Okay. I think you already told [counsel for Dr.
Derstine and Greencastle] and we read in your report that you
state according to the report by Dr. Wayne Ross, then you list the
pills you believe [Decedent] was taking from the 25th through the
28th, correct?
A. That’s correct.
Q. That’s what it says there, correct?
A. Yes.
Q. Can we also agree if we turn to page 1 of your report,
can we pull that up, there we go, that nowhere in the materials
that you reviewed is the police report that you referenced listed;
is that right?
A. That’s correct. I did not have it at that time.
Q. Okay. Am I also correct, sir, you did not author any
supplemental report in which you reference reviewing a police
report to substantiate your conclusions about what [Decedent]
was taking, correct?
A. Correct.
Q. Do you have any idea whether Dr. Ross reviewed a
police report when he reached his conclusion about the pills she
may have been taking?
A. I have no idea.
Q. Okay. Is it fair to say, sir, as you sit here today
testifying you have not included any reference to a police report
or relied upon a police report in the report that is the basis for
your opinions in this case, correct?
A. That’s correct.
Id. at 53-54. Thus, this line of inquiry established only that Dr. Zipes did not
have the Pill Count Document, or any other part of the police file, when he
prepared his expert report.
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Finally, on re-cross examination, counsel for Dr. Derstine and
Greencastle examined Dr. Zipes in more detail on the police report:
Q. Doctor […] I have the police report sitting in front of
me. Can you point out to me where there’s a pill count in there?
A. I don’t have it in front of me. I don’t remember. It’s
page—it’s well into the report. I don’t remember what page but
it’s there.
Q. Okay.
A. Counsel could point it out to you.
Q. I believe I have the whole report here, Doctor, and
there is no pill count in here. You say there is. You say you’ve
got some document that purports to have a pill count on it?
A. That’s correct. I don’t have – the document’s on my
computer. I don’t have that with me.
Q. Okay. Thank you very much.
A. The document showed 20 pills.
[Defense counsel]: There’s no question, doctor.
Id. at 57-58.
On redirect examination, Appellant’s counsel finally introduced the Pill
Count Document:
Q. Okay. Can you put up plaintiff’s exhibit 1337, please?
Is that the pill count you were talking about?
A. That’s it exactly.
Q. Those are all the questions I have – wait. Actually one
more question. The medication listed at the bottom, is that
clarithromycin?
A. Yes.
Q. Is that Biaxin?
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A. Yes.
Q. If we look at the dosage, is that 500 milligrams once
per day or twice a day?
A. That’s twice a day, b.i.d.
Q. Okay. Under number dispensed, that’s 20, right?
A. Correct.
Q. Then the number found is?
A. Twelve.
Q. So do the math for me. How many are gone?
A. Eight.
Id. at 59-60.
Neither of Appellees’ lawyers objected when Appellant introduced the
Pill Count Document, i.e. plaintiff’s exhibit 1337. Moreover, Appellant’s
introduction of the Pill Count Document during re-direct was directly
responsive to questions Appellees’ posed on cross-examination. Thus, the
trial court relied on Appellees’ lone objection, bolded in the first exchange
quoted above, in support of its conclusion that Appellees’ preserved the issue.
The trial court believed Rule 4016(c) supported its result.
(c) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form
of oral questions or answers, in the oath or affirmation, or in the
conduct of parties and errors of any kind which might have been
obviated, removed, or cured if objections had been promptly
made, are waived unless seasonable objection is made at the
taking of the deposition.
Pa.R.C.P. No. 4016(c).
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The trial court concluded that the initial objection (“Objection. Just stick
to things you had at the time of your report, Doctor.”), combined with
Appellees’ motion in limine, was sufficient to obviate this error prior to trial,
when the parties introduced a redacted version of Dr. Zipes’ deposition into
evidence. The trial court admitted a redacted version omitting references to
the Pill Count Document. Dr. Zipes gave his deposition by video conference
from Bonita Springs, Florida. N.T. Zipes Deposition, 1/29/19, at 4. The
deposition was to be used at trial, in lieu of having Dr. Zipes appear at trial.
Significantly, the transcript reflects no stipulation deferring objections to the
time of trial.
We observe that Rule 4016(c), is titled “Taking of Depositions.
Objections.” Pa.R.C.P. No. 4016. Subsection (c) governs errors of any kind,
and requires that an objection be “promptly made” and “seasonable … at the
taking of the deposition.” In construing the Rules of Civil Procedure, this Court
looks to the rules of statutory construction. Horwath v. DeGrazio, 142 A.3d
877, 880 (Pa. Super. 2016). The intent of our Supreme Court controls, and
the best evidence of that intent is the rule’s plain language. Id.; see also 1
Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.”) 1 Pa.C.S.A. § 1921(b).
We conclude that Appellees’ lone objection did not comply with the plain
language of Rule 4016(c). The only objection occurred when Dr. Zipes began
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to discuss the police report in general, without any reference to the Pill Count
Document. Subsequent exchanges establish that counsel for Dr. Derstine and
Greencastle was unaware of the Pill Count Document when the objection was
lodged. Indeed, counsel later revisited the pill count issue and asked Dr. Zipes
to confirm that no pill count was done. Dr. Zipes disagreed, but could not
produce the document he had in mind. Appellant’s counsel introduced the Pill
Count Document, identified as plaintiff’s exhibit 1337, and examined Dr. Zipes
on it with no objection from Appellees. Thus, there was no specific objection
to the Pill Count document at the deposition, much less a prompt, seasonable
one. Appellees’ subsequent motion in limine does not change the result,
inasmuch as Rule 4016(c) expressly requires an objection at the taking of the
deposition.
For additional guidance, we look to Rule 4020, titled “Use of Depositions
at Trial.” Pa.R.C.P. No. 4020.2 In particular, Rule 4020(c) states: “Subject
to the provisions of Rule 4016(b), objection may be made at the trial or
hearing to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were then
present and testifying.” Pa.R.C.P. No. 4020(c). Our Supreme Court has
addressed the relationship of Rules 4020 and 4016:
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2 Rule 4020(a)(5) permits the deposition of a medical witness to be used at
trial regardless of the availability of the witness. Pa.R.C.P. No. 4020(a)(5).
Similarly, pursuant to Rule 4017(g), a video deposition of an expert witness
may be used at trial regardless of the witness’ availability.
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Read together, Pa.R.Civ.P. 4020(c) and 4016(b), […]
provide that, while an objection may be made at trial to the
introduction of any part of a deposition in the same manner as if
the deponent were then testifying, the failure to object during the
taking of the deposition will preclude an objection at trial if ‘the
ground of the objection is one which was known to the objecting
party and which might have been obviated or removed if made’ at
the time of the deposition.
Starner v. Wirth, 269 A.2d 674, 677 (Pa. 1970). Where, however, the
parties stipulate to reserve all objections until trial, the court will honor the
stipulation. Id. Instantly, there was no stipulation to reserve objections, the
Pill Count Document was in the possession of all parties prior to the deposition,
and Appellees failed to object when Appellant’s counsel introduced it on re-
direct examination, in direct response to Appellees’ questions on cross
examination. The only objection in the passages quoted above—that Dr. Zipes
confine his testimony to items he considered in preparation of his expert
report—did not address the Pill Count Document, much less object to that
document as inadmissible hearsay. Appellees could have made a hearsay
objection when Appellant’s counsel introduced the Pill Count Document, but
they failed to do so. We therefore conclude that Appellees failed to preserve
their objection to the Pill Count Document in accord with Rules 4016, 4020,
and our Supreme Court’s analysis in Starner. Moreover, since the number of
Biaxin pills Decedent ingested was an important issue at trial, we cannot
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conclude the error was harmless. We therefore vacate the judgment and
remand for a new trial.3
Because we have concluded Appellees waived their objection to the Pill
Count Document, we need not address Appellant’s argument that it was
admissible under Pa.R.E. 806. We will, however, address Appellant’s
argument that the trial court erred in finding Harvey Millman, Ph.D., expert
for Appellees Ervin and Carl’s, qualified to testify, as that issue may present
itself again on retrial.
Whether a witness has been properly qualified to give expert
witness testimony is vested in the discretion of the trial court. It
is well settled in Pennsylvania that the standard for qualification
of an expert witness is a liberal one. When determining whether
a witness is qualified as an expert the court is to examine whether
the witness has any reasonable pretension to specialized
knowledge on the subject under investigation.
The determination of whether a witness is a qualified expert
involves two inquiries:
When a witness is offered as an expert, the first question
the trial court should ask is whether the subject on which the
witness will express an opinion is so distinctly related to some
science, profession, business or occupation as to be beyond the
ken of the average layman. ... If the subject is of this sort, the
next question the court should ask is whether the witness has
sufficient skill, knowledge, or experience in that field or calling as
to make it appear that his opinion or inference will probably aid
the trier in his search for truth.
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3 Although we have concluded Appellees did not timely object to preserve
their issue regarding the Pill Count Document, it remains that upon retrial the
admissibility of this document will again be at issue, since both parties, barring
any stipulation to the contrary, will be presenting their evidence and
objections de novo.
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Wexler v. Hecht, 847 A.2d 95, 98–99 (Pa. Super. 2004) (internal citations
and quotation marks omitted), affirmed, 928 A.2d 973 (Pa. 2007).
Appellees Ervin and Carl’s Drug Store proffered Dr. Millman as an expert
in pharmacy practice, pharmacology, and toxicology. Appellant argues Dr.
Millman was not qualified in any respect as to the latter two, and that he
demonstrated no knowledge of the computer systems used in present-day
pharmacy practice. The record reveals that Dr. Millman had been a licensed
pharmacist for 30 years, approximately ten of which were in retail and clinical
pharmacy. He also worked for the United States Public Health Service, the
National Cancer Institute, and the Environmental Protection agency, during
his pharmacy career. He gave up his license in 2004, but remains a member
of the American Pharmacists Association and continues to review its
publications.
At trial, Dr. Millman opined only as to pharmacy practice: he opined
that Ervin and Carl’s Drug Store complied with the standard of care for
pharmacy practice.4 In particular, he noted that a review of Decedent’s
prescribed drugs would have been by the CVS computer system, Dr. Derstine’s
computer system, and the insurance company’s computer system. The retail
pharmacist was not required to obtain a list of Decedent’s medications before
dispensing the drug, and Appellant, who picked up the Biaxin on Decedent’s
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4 We therefore need not address his qualifications as to pharmacology and
toxicology.
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behalf, declined counseling from the pharmacist. Given the limited nature of
Dr. Millman’s testimony, the length and breadth of his career in pharmacy,
and the liberal standard for determining an expert’s qualifications, we discern
no error in the trial court’s decision.
Based on the foregoing, we vacate the judgment and remand for a new
trial.
Judgment vacated. Case remanded for new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/28/2020
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