Povrzenich, L. v. Ripepi, J. ( 2021 )

J-A20005-20 & J-A20006-20
2021 PA Super 46LACEY POVRZENICH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER K. RIPEPI, M.D.; JENNIFER :
K. RIPEPI PEDIATRICS, LLC; FRANK :
G. DIETTINGER, M.D.; IMAGING : No. 1764 WDA 2019
ASSOCIATES OF GREATER :
PITTSBURGH, LLC; AND :
MONONGAHELA VALLEY HOSPITAL :
:
:
LACEY POVRZENICH, A MINOR, BY :
AND THROUGH HER PARENTS AND :
NATURAL GUARDIANS, JANNA :
PALLOTTA AND EDWARD :
POVRZENICH :
:
:
v. :
:
:
DAWN R. MCCRACKEN, M.D.; DAWN :
MCCRACKEN, M.D., P.C.; :
MONONGAHELA VALLEY HOSPITAL; :
AND MON VALLEY COMMUNITY :
HEALTH SERVICES, INC. :
:
:
APPEAL OF: LACEY POVRZENICH, :
JANNA PALOTTA AND EDWARD
POVRZENICH
Appeal from the Judgment Entered December 6, 2019
In the Court of Common Pleas of Washington County Civil Division at
No(s): 2015-4727
LACEY POVRZENICH, A MINOR BY : IN THE SUPERIOR COURT OF
AND THROUGH HER PARENTS AND : PENNSYLVANIA
NATURAL GUARDIANS, JANNA :
J-A20005-20 & J-A20006-20
PALLOTTA AND EDWARD :
POVRZENICH :
:
Appellants :
:
: No. 1765 WDA 2019
v. :
:
:
DAWN R. MCCRACKEN, M.D., :
DAWN MCCRACKEN, M.D., PC.; :
MONONGAHELA VALLEY :
HOSPITAL; AND MON VALLEY :
COMMUNITY HEALTH SERVICES, :
INC.
Appeal from the Judgment Entered December 6, 2019
In the Court of Common Pleas of Washington County Civil Division at
No(s): 2013-5772
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
OPINION BY BOWES, J.: FILED: MARCH 19, 2021
Lacey Povrzenich (“Lacey” or “Plaintiff”), appeals at two numbers from
the judgment1 entered in her favor and against Mon Valley Community Health
Services (“MVCHS”) in this medical malpractice action. Plaintiff, the verdict
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1 Plaintiff filed two notices of appeal purporting to appeal from two separate
orders entered on October 25, 2019: the order denying her motion for post-
trial relief, and the order granting in part and denying in part her motion for
delay damages. Although an appeal properly lies from the judgment following
the disposition of such motions, where judgment is subsequently entered, we
will treat the appeal as one from the judgment. See Johnston the Florist,
Inc. v. Tedco Constr. Corp., 657 A.2d 511, 514 (Pa.Super. 1995) (holding
appeal lies from judgment, not from the denial of post-trial motions); LaRue
v. McGuire, 885 A.2d 549, 551 n.1 (Pa.Super. 2005) (holding order granting
or denying delay damages is generally interlocutory and not appealable unless
reduced to judgment). Judgment was entered on December 6, 2019, and we
have amended the caption accordingly.
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winner below, contends that she is entitled to a new trial limited to damages
because the trial court erroneously precluded the testimony of her expert life
care planner, Dana Bissontz, as to Plaintiff’s future medical expenses.
Additionally, Plaintiff alleges that the trial court erred in the computation of
delay damages by excluding certain time periods from consideration. We sua
sponte consolidated the two appeals pursuant to Pa.R.A.P. 513, and, after
careful review, we affirm the judgment in part, vacate in part, and remand.
The facts giving rise to the instant medical malpractice action are as
follows. Lacey was born on January 31, 1996, with a cleft palate for which
she underwent several surgeries. From 1997 to 2007, Lacey was treated for
five urinary tract infections (“UTI”) by her pediatrician, Dr. McCracken.
In 2008, Lacey changed primary care providers and came under the
care of pediatrician Jennifer Ripepi. M.D. In February, while under Dr. Ripepi’s
care, Lacey was treated at Monongahela Valley Hospital for dehydration. A
urine screen at that time revealed a UTI, as well as high creatinine levels. A
computed tomography (“CT”) scan of her pelvis was interpreted as normal by
Dr. Frank Diettinger. The results were forwarded to Dr. Ripepi. A course of
antibiotics were prescribed for the infection, and once they were completed,
Dr. Ripepi ordered another culture, which was reported as normal. In May
2008, Lacey returned to Dr. Ripepi with complaints of left-sided abdominal
pain occurring daily and lasting several hours. Dr. Ripepi reviewed the urine
test results and again prescribed antibiotics.
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Shortly thereafter, the family relocated and Lacey was seen at MVCHS.
On March 3, 2009 and May 4, 2010, Lacey was noted to have elevated blood
pressure. Two weeks later, on May 18, 2010, Lacey went to the Mon Valley
Hospital emergency room, and was lifeflighted to Children’s Hospital in
Pittsburgh. There she was diagnosed with end-stage renal disease secondary
to severe reflux nephropathy. Lacey was advised that she would need a
kidney transplant, and placed on dialysis immediately.
In 2015, Lacey underwent a kidney transplant with a kidney donated by
her mother. Since the transplant, she has shown signs of rejection and
required dialysis, and it is likely that Lacey will require a second kidney
transplant in the future.
On September 20, 2013, Janna Palotta and Edward Povrzenich, parents
of then seventeen-year-old Lacey, filed a medical negligence action on her
behalf at G.D. 2013-5772 against Dr. McCracken, Dawn McCracken, M.D., PC,
Monongahela Valley Hospital, and MVCHS.2 They asserted that these
Defendants were negligent in failing to conduct further testing, and/or failing
to refer Lacey to a specialist, resulting in additional damages due to delay in
diagnosis of her kidney reflux.
Discovery was ongoing in the case filed at G.D. 2013-5772, when Lacey,
having reached the age of majority, filed a second medical malpractice action
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2Plaintiff originally named Southwestern Pennsylvania Human Services, Inc.
as a defendant in the action. On April 14, 2014, the parties stipulated to the
substitution of MVCHS for that entity.
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at G.D. 2015-4727 against Jennifer K. Ripepi, M.D., Jennifer K. Ripepi
Pediatrics, LLC., Frank G. Diettinger, M.D., and others. She alleged therein
that Dr. Ripepi was negligent in failing to follow up on the UTIs and high
creatinine levels, failing to recognize the abnormal labs, treating Lacey with
repeated course of antibiotics that aggravated the renal failure, and failing to
refer Lacey to an appropriate specialist. Dr. Diettinger was allegedly negligent
for failing to note and report abnormalities shown on CT scans. Lacey
maintained that if her condition had been detected earlier and properly
treated, a less invasive surgical procedure could have been performed.
On September 23, 2015, the trial court granted Plaintiff’s motion to
consolidate the two actions “for all purposes” at the second docket number
G.D. 2015-4727. In addition, the caption was amended to reflect both
captions and the consolidated number.
A two-week jury trial of the consolidated action commenced on October
16, 2018. On October 26, 2018, the jury returned a verdict against Dr.
McCracken and MVCHS, finding that they were negligent, and that their
negligence was a factual cause of harm to Lacey.3 Dr. Ripepi, Dr. Diettinger,
and Mon Valley Hospital were found not negligent. The jury attributed eighty-
five percent of the negligence to Dr. McCracken, and fifteen percent to MVCHS,
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3 The record reveals that Dr. McCracken settled with Plaintiff prior to trial.
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and awarded Plaintiff $245,573.28 for past medicals, $1 million for past
economic loss, and $3 million for future noneconomic losses.
MVCHS filed a timely motion for post-trial relief, which was denied.
Plaintiff also filed a motion for post-trial relief seeking a new trial limited to
damages, alleging that the trial court improperly excluded her life care planner
from testifying as to future medical expenses, which the trial court denied.
She also filed a motion to mold the verdict to include delay damages, which
was granted in part and denied in part.
On November 22, 2019, Plaintiff filed two notices of appeal: one
designated as an appeal from the order granting in part her motion to mold
the verdict and add delay damages, and the other purporting to appeal from
the denial of her motion for post-trial relief.4 Both notices of appeal listed the
two docket numbers, and were filed at the consolidated number, No. 2015-
4727, but were also noted on the docket for No. 2013-5772.
This Court assigned appeal number 1764 WDA 2019 to the first notice
of appeal from the order molding the verdict and awarding delay damages,
and 1765 WDA 2019 to the second appeal challenging the evidentiary ruling
excluding the testimony of the life care planner. We then issued a rule in each
appeal directing Plaintiff to show cause why the appeals should not be quashed
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4 Judgment was not entered on the verdict against MVCHS until December 6,
2019. Where, as here, a party appeals prior to entry of judgment, but
judgment is subsequently entered, we treat that which ought to have been
done as done.
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for failure to comply with the Official Note to Pa.R.A.P. 341(a) and
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Specifically, in
Walker, the Pennsylvania Supreme Court mandated “that when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed,” and the failure to do so will result in quashal of the
appeal. Order, 12/18/19.
Plaintiff responded to the rule by explaining that there was only one
lower court docket number, G.D. 2015-4727, because the actions filed at G.D.
2013-5772 and G.D. 2015-4727, had been consolidated at the latter number.
See Response to Rule to Show Cause, 12/26/19, at 1. Plaintiff appended to
her response a copy of the docketing statement that had been attached to
each notice of appeal, and pointed out that the number at which the case was
heard, G.D. 2015-4727, was noted at the top of the docket.
By order of December 30, 2019, this Court discharged the rule to show
cause, but noted that this ruling was not binding upon the panel. Counsel was
advised that the issue could be revisited by the merits panel, and that counsel
should be prepared to address the panel’s concerns either in their briefs or at
oral argument. Order, 12/30/19, at 1. MVCHS raises the issue in its brief,
and urges this Court to quash the appeals pursuant to Walker.
Plaintiff and the trial court have complied with Pa.R.A.P. 1925, and the
matter is ripe for our review. Plaintiff presents two issues:
A. Did the trial court err when it granted the Defendant[s’] Motion
to Exclude Plaintiff's Life Care Planner Dana Bissontz from
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testifying, on the basis that she lacked the qualifications to render
opinions on the future medical care and costs of the Plaintiff Lacey
Povrzenich, which deprived the jury of measuring all of the
economic damages of the Plaintiff.
B. Did the trial court err in its calculation of delay damages, when
it excluded three periods of time from the calculation of delay
damages due to extensions of discovery dates, which did not delay
the trial, depriving the Plaintiff Lacey Povrzenich of her right to
additional statutory damages.
Appellant’s brief at 7.
Before we address the merits of the appeal, we must first determine if
Plaintiff has complied with Walker. MVCHS maintains that Plaintiff initiated
two actions against two different sets of defendants at two docket numbers.
Thus, MVCHS contends that this is a case where a single order, i.e., the
judgment, resolved issues on more than one docket, and that filing a single
notice of appeal listing both docket numbers was insufficient. See e.g., C.T.E.
v. D.S.E., 216 A.3d 296, 299 (Pa.Super. 2019) (quashing the appeal,
pursuant to Walker, where the appellant filed a single, timely notice of appeal
listing both docket numbers); Commonwealth v. Nichols, 208 A.3d 1087(Pa.Super. 2019) (quashing the appeal where the appellant filed one notice of
appeal with issues that related to three different lower court docket numbers).
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However, instead of filing separate notices of appeal from the judgment at
each lower court docket number, Plaintiff filed two notices of appeal from two
non-final trial court orders.5
Plaintiff reiterates that, by order of court, two different docket numbers
were consolidated under one trial court docket number, G.D. 2015-4727, and
explains that she filed the two appeals at the consolidated number because
“[w]here two actions are consolidated, only one action retains its identity and
the others are absorbed by it.” Appellant’s Reply Brief at 2, 4 (citing Kincy
v. Petro, 2 A.3d 490, 496 (Pa. 2010)). Furthermore, Plaintiff maintained that
discovery, trial, and the verdict were conducted at the consolidated case
number. Id. at 5. She contends that although she filed two notices of appeal,
one notice of appeal filed at the consolidated docket was sufficient to comply
with Walker.
Since the filing of the parties’ briefs herein, there have been several
decisions clarifying the application of Walker. In Commonwealth v.
Jerome Johnson, 236 A.3d 1141 (Pa.Super. 2020) (en banc) (overruling in
part Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019)), this
Court held that including multiple docket numbers on separately filed notices
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5 MVCHS acknowledges, however, that this latter defect was cured when
judgment was subsequently entered on December 6, 2019. See MVCHS’s
brief at 12 n.7 (citing Johnston the Florist, Inc. v. Tedco Constr. Corp.,
657 A.2d 511, 514 (Pa.Super. 1995) (permitting appeal purporting to be from
denial of post-trial motions when judgment was subsequently entered).
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of appeal was not grounds for quashal under Walker. See also
Commonwealth v. Rebecca Johnson, 236 A.3d 63 (Pa.Super. 2020) (en
banc) (crediting the appellant’s representation that, although the notices of
appeal contained all three docket numbers, she filed a separate notice of
appeal at each docket number because the time stamp on each notice was in
a different location and the time of filing was unique on two of the three
notices).
We find no merit in Plaintiff’s contention that consolidation below
obviated the need for two notices of appeal.6 Walker required that separate
notices of appeal be filed for each docket. See Pa.R.A.P. 341, Official Note
(“Where . . . one or more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate notices of appeals
must be filed.”).
Plaintiff filed two separate notices of appeal at the consolidated number.
The question is whether it matters for purposes of Walker that the two notices
of appeal were filed at same docket. Our review of the certified record reveals
that, following consolidation, all original documents were filed at the
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6 This was not a complete consolidation because the actions did not “involve
the same parties, subject matter, issues, and defenses.” Kincy v. Petro, 2
A.3d 490, 494 (Pa. 2010). See also Malanchuk v. Sivchuk, 148 A.3d 860,
863-864 (Pa.Super. 2016) (consolidated actions that did not involve identical
parties were not completely consolidated). Thus, Plaintiff’s reliance upon
Kincy for the proposition that the action filed at No. 2013-3772 ceased to
exist when it was consolidated at No. 2015-4727, is mistaken.
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consolidated number, including motions in limine, the verdict, post-trial
motions, praecipes for judgment, and notices of appeal. For instance,
judgment was entered herein at the consolidated docket number, and noted
on the 5772 docket. It appears that following consolidation, the 5772 docket
was dormant for filing purposes. However, that docket reflects the filings at
the consolidated docket number, including the filing of two separate notices
of appeal each bearing the two docket numbers.
Herein, Plaintiff filed two separate notices of appeal, albeit for the wrong
reason. Furthermore, the fact that each notice contained both docket
numbers is not grounds for quashal under Walker. See Jerome Johnson,
supra. Nor do we find it problematic that both notices of appeal were filed at
the consolidated docket number. This was the filing procedure utilized by the
Prothonotary throughout the litigation. Moreover, the filing of the two
separate notices of appeal bearing both docket numbers adequately conveyed
to this Court that two dockets were implicated, and that separate appellate
docket numbers were required. Consequently, this Court retained the ability
to exercise its discretion to consolidate the appeals pursuant to Pa.R.A.P. 513,
which was one of the purposes cited by the Walker Court for requiring that
separate appeals be filed for each implicated docket. See Walker, supra at
976 (holding that Rule 341(a) must be read consistently with the Rules 512
and 513 governing joint appeals, and that the filing of a single notice of appeal
from an order arising on more than one docket effectively consolidated
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appeals without either the approval of the Superior Court or the agreement of
the appellees as required in Rule 513). For these reasons, we find the filing
of two separate notices of appeal sufficient under Walker, and decline to
quash these appeals.
We turn now to the merits of this consolidated appeal. Plaintiff contends
that the trial court erred in denying her motion for a new trial limited to
damages because the testimony of Life Care Planner Nurse Dana Bissontz
regarding Plaintiff’s future medical expenses was improperly excluded.
Our standard of review from a trial court’s grant or denial of a new trial
is whether the trial court abused its discretion. Mader v. Duquesne Light
Co., 241 A.3d 600, 607 (Pa. 2020). We review the underlying matter that
formed the basis for the trial court’s decision to determine “whether a mistake
occurred and whether that mistake was sufficient to order a new trial.” Id.If an error occurred, we must determine whether the trial court abused its
discretion in ruling on the request for a new trial, i.e., “whether the trial court
has rendered a judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will.” Id. (citations omitted).
The specific error identified by Plaintiff involves the trial court’s exclusion
of expert testimony. The “[a]dmissibility of expert testimony is left to the
sound discretion of the trial court, and as such, this Court will not reverse the
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trial court’s decision absent an abuse of discretion.” Snizavich v. Rohm &
Haas Co., 83 A.3d 191, 194 (Pa.Super. 2013).
The following legal principles inform our review. Pa.R.E. 702 governs
testimony by expert witnesses. It provides in pertinent part that “[a] witness
who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if . . . the expert’s
scientific, technical, or other specialized knowledge is beyond that possessed
by the average layperson” and if it “will help the trier of fact to understand
the evidence or to determine a fact in issue.” Pa.R.E. 702(a)(b). Under
Pennsylvania law, the standard for qualification of an expert witness is a liberal
one. See George v. Ellis, 820 A.2d 815, 817 Pa.Super. 2003) (citation
omitted). “In order to qualify as an expert witness in a given field, a witness
normally need only possess more expertise than is within the ordinary range
of training, knowledge, intelligence, or experience.” Miller v. Brass Rail
Tavern, Inc., 664 A.2d 525, 528 (Pa.1995)). If an expert witness has any
reasonable pretension to specialized knowledge on the subject under
investigation, she may testify and the weight to be given to such testimony is
for the trier of fact to determine. See James v. Albert Einstein Medical
Center, 170 A.3d 1156, 1162 (Pa.Super. 2017).
Plaintiff contends that the trial court abused its discretion excluding Life
Care Planner Dana Bissontz. The trial court offered two bases for the exclusion
of her expert testimony. First, the court concluded that Nurse Bissontz had
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"no specialized knowledge, skill, experience, training or education relating to
kidney transplant patients’ needs." Trial Court Opinion, 3/9/20, at 9-10.
Since Nurse Bissontz never worked with a kidney transplant patient, she was
not qualified as an expert on the lifetime needs of a kidney transplant patient.
Id. at 10. In addition, the trial court ruled that no foundation was laid as to
the testing, procedures, and medications that are required for a patient who
has undergone a kidney transplant and who likely will require a second kidney
transplant. Id.
Plaintiff contends that Dana Bissontz had the requisite knowledge,
experience, training and education to testify about a life care plan projecting
future costs for a person like Lacey, whom physicians opined would likely need
another kidney transplant in the future. According to Plaintiff, the trial court’s
concerns goes to the weight of Nurse Bissontz’s testimony rather than its
admissibility. As a consequence of the trial court’s error, Plaintiff argues that
damages for future medical damages were not submitted to the jury, which
was highly prejudicial.
With regard to future medical expenses, it is plaintiff’s burden to prove
not only that such expenses will be incurred, but the estimated cost of such
services. We have recognized that such information is not within the general
knowledge of laypersons, and that expert testimony is required to avoid the
prospect of a verdict based on speculation. See Cohen v. Albert Einstein
Medical Center, 592 A.2d 720, 729 (Pa.Super. 1991). Generally, physicians
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provide the foundational testimony for the future medical care and treatment
that will be necessary. Life care planners research the price of the various
procedures, treatments, and medications associated with the future medical
care and render expert opinions on the cost to an individual. A life care
planner is a recognized expert in Pennsylvania who “reviews medical records
and bills to formulate an expert opinion projecting the future medical costs of
an individual over her lifetime.” Deeds v. Univ. of Pennsylvania Med. Ctr.,
110 A.3d 1009, 1012 (Pa.Super. 2015).
Dr. Tej Mattoo, Plaintiff’s expert in pediatric kidney disease and
transplants opined that Plaintiff would likely require another kidney transplant,
perhaps dialysis, and the medications and other services that accompany a
transplant. He treated patients who have had kidney transplants. N.T. Jury
Trial Vol. II, 10/17/18, at 90. Dr. Mattoo described a kidney transplant as a
“life-changing event,” and offered the following insights. Id. at 92. Dr. Mattoo
explained that transplant patients remain under “intense medical care
throughout their li[ves]. Id. When things are going well, the time between
clinic visits can be as long as three months. Id. Otherwise, follow up is much
more often. Id. Transplant recipients must get lab work at each follow-up
visit, and often in-between visits. Id. Such patients are usually taking five
to ten medications that are adjusted at regular visits. They may also need to
abide by strict dietary restrictions. Many times, according to Dr. Mattoo, the
transplanted kidney will start to fail, and the patient repeats the cycle that led
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to the first transplant: “chronic kidney disease, then dialysis, and then another
transplant.” Id. at 93. Counseling and support services are provided while
patients are undergoing dialysis and after a transplant. Dr. Mattoo also
examined the bills and charges following Lacey’s first transplant, and he
testified that those bills totaling $242,573.28 were reasonable, necessary, and
related to the care she required. Id. at 95. See Plaintiff’s Exhibit 1.
Dana Bissontz, a certified life care planner with twenty years’ experience
as a registered nurse, determined the costs associated with the future medical
care that Dr. Mattoo outlined. Nurse Bissontz interviewed Lacey, her parents,
reviewed the medical records, referenced numerous sources that provided
information about renal disease and coding for kidney transplantation, and
prepared an expert report. She calculated the base cost for anticipated
services, then the annual cost, and multiplied the latter figure by Lacey’s life
expectancy. The expenses included testing, pre-transplant management,
future medical care, and medications. Nurse Bissontz prepared a life care plan
containing her opinions rendered to a reasonable degree of certainty as a life
care planner and registered nurse with twenty years of experience.
At trial, Plaintiff called Nurse Bissontz to offer testimony consistent with
her expert report as a certified life care planner. Voir dire on her qualifications
was conducted, wherein Plaintiff established her education as a nurse, and her
work experience in diverse settings, including nursing homes, operating
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rooms, and conducting utilization review. In addition, Nurse Bissontz obtained
certification as a life care planner from Capital University’s law school.
Defense counsel cross-examined Nurse Bissontz regarding her
qualifications, and thereafter objected to her testimony. Defendants argued
that Nurse Bissontz had no particular expertise with respect to individuals who
have undergone kidney transplants, and was not qualified to render medical
conclusions. Plaintiff countered that Nurse Bissontz’s credentials, education,
and experience, in both medicine and utilization review, qualified her to testify
in this case, and that any lack of specific experience with kidney transplant
patients went to the weight of her testimony, not its admissibility. The trial
court excluded Nurse Bissontz’s testimony, finding that she was not qualified
because she lacked experience with kidney transplants.7
We find that Dana Bissontz had sufficient specialized knowledge and
experience to offer her expert opinions regarding the future medical expenses
associated with post-kidney transplant care and a second kidney transplant
anticipated by Dr. Mattoo. The fact that she had little experience with kidney
transplant patients did not disqualify her from using her skills and experience
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7 Prior to trial, MVCHS had filed a motion in limine seeking to exclude Dana
Bissontz from testifying where she was relying upon Dr. Mattoo’s opinions in
formulating her opinions. MVCHS maintained that Dr. Mattoo’s opinions were
speculative. By order dated October 9, 2018, the motion was denied.
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to analyze the costs associated with such a procedure and its aftermath.8 The
matter under investigation was not a kidney transplant per se, but the costs
associated with such a procedure. The mere fact that Nurse Bissontz had not
personally cared for a kidney transplant patient would not hamper her ability
to research and accurately tabulate the expenses associated with such a
procedure. Any lack of experience with kidney transplants in particular went
to the weight of her testimony, not to its admissibility. See e.g. Wright v.
Residence Inn by Marriott, Inc., 207 A.3d 970, 977 (Pa.Super. 2019)
(finding abuse of discretion where trial court precluded an internist from
offering expert opinions regarding an orthopedic injury in a slip and fall case,
as strength of the internist’s credentials went to the weight of his testimony,
not its admissibility).
Nor can we affirm the trial court’s ruling based on a lack of foundation.
Nurse Bissontz was excluded after voir dire on qualifications only. She never
had the opportunity to explain the factual foundation for her expert opinions.
Consequently, we conclude that the trial court abused its discretion in
precluding Nurse Bissontz from testifying at trial.
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8 Nurse Bissontz was not offering standard of care testimony, which typically
involves a heightened requirement for expert medical testimony involving a
specialized area of practice, if the defendant is a specialist. See e.g. Wexler
v. Hecht, 847 A.2d 95, 99-100 (Pa.Super. 2004) aff'd, 928 A.2d 973 (Pa.
2007).
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Having found that the trial court abused its discretion in excluding Nurse
Bissontz’s testimony, we must determine whether the evidentiary ruling was
prejudicial, i.e., whether it affected the verdict. See Wright v. Residence
Inn by Marriott, Inc., 207 A.3d 970, 978 (Pa.Super. 2019). The trial court
acknowledged that if its ruling was deemed to be an abuse of discretion, it
was prejudicial. See Trial Court Opinion, 3/6/20, at 11 (noting that prejudice
“was clearly established as the court did not instruct the jury as to future
medical cost and no line item for future medical costs was on the verdict
slip.”). In short, Plaintiff was precluded from offering evidence of, and
recovering, substantial future medical expenses. Hence, we find that some
form of a new trial is required. The question remaining is the scope of the
new proceeding.
Plaintiff maintains that a new trial limited to damages and involving only
the defendants found liable would suffice.9 We agree that liability was fully
determined, that it was not intertwined with damages, and that a new trial
limited to damages is appropriate herein. However, our Supreme Court
recently addressed the scope of a retrial on damages only in Mader, supra,
and we find it instructive. The Court “reject[ed] the notion that a per se rule
exists requiring a remand for all damages whenever a new trial is awarded on
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9 Plaintiff sought a new trial limited to damages or “such other relief as the
Court deems appropriate.” Plaintiff’s Motion for Post-Trial Relief in the Nature
of a New Trial Limited to the Plaintiff’s Damages, 11/5/18, at 11.
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certain damages.” Id. at 614. The High Court added that when a trial court
is facing the decision to relitigate all damages in a new trial, or just certain
discrete damages, “it should discern whether the properly awarded damages
in the first trial were ‘fairly determined,’ and, if so, whether they are
sufficiently independent from, and are not ‘intertwined’ with the erroneously
determined damages.” Id.
There is no allegation that damages for past medical expenses, past
non-economic loss, and future non-economic loss, defined as “pain and
suffering, embarrassment and humiliation, loss of enjoyment of life,” were
improperly determined. See Verdict Slip, 10/26/18. Since no evidence of
damages for future medical expenses was presented, the jury was not
instructed on such damages and the verdict slip did not contain lines
permitting the jury to assess future damages for medical expenses. We find
that damages for future medical expenses are sufficiently independent and
discrete from the other damages as to permit a new trial limited to those
damages only. Hence, we remand for a new trial limited to damages for future
medical expenses.10
____________________________________________
10 Defendants argue that since Plaintiff did not offer her economist James
Kenkel, Ph.D., and there was no order precluding him from testifying, he
cannot testify at the retrial on damages. We disagree. Dr. Kenkel’s expert
opinion and calculations were based on Nurse. Bissontz’s life care plan. Once
Ms. Bissontz was precluded from testifying, there was no foundation for Dr.
Kenkel’s opinions, which was correctly pointed out by counsel for defendant.
See N.T. Jury Trial Vol. III, 10/18/18, at 164 (“Your Honor, the testimony of
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Plaintiff’s final issue involves the calculation of delay damages. Since
we are remanding for a new trial on damages for future medical expenses,
and the jury’s award will not be known until the new trial is completed, it
might appear at first blush that any claim involving delay damages would be
moot. However, at issue is whether the trial court erred in excluding from the
calculation of delay damages three periods when Plaintiff sought and obtained
discovery extensions, and that issue is likely to reoccur following the new trial
and the recalculation of delay damages. Hence, we will address it.
Delay damages are governed by Rule 238, which provides in pertinent
part:
Rule 238. Damages for Delay in Actions for Bodily Injury, Death
or Property Damage
(a)
(1) At the request of the plaintiff in a civil action seeking monetary
relief for bodily injury, death or property damage, damages for
delay shall be added to the amount of compensatory damages
awarded against each defendant or additional defendant found to
be liable to the plaintiff in the verdict of a jury, in the decision of
the court in a nonjury trial or in the award of arbitrators appointed
under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and
shall become part of the verdict, decision or award.
(2) Damages for delay shall be awarded for the period of
time from a date one year after the date original process
was first served in the action up to the date of the award,
verdict or decision.
____________________________________________
[Dr. Kenkel] is obviated by the fact that you excluded this witness [Dana
Bissontz)]”). Following Ms. Bissontz’s testimony at the limited new trial, there
is no impediment to Dr. Kenkel offering expert economic testimony evaluating
the life care plan.
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(3) Damages for delay shall be calculated at the rate equal to the
prime rate as listed in the first edition of the Wall Street Journal
published for each calendar year for which the damages are
awarded, plus one percent, not compounded.
(b)
(1) The period of time for which damages for delay shall be
calculated under subdivision (a)(2) shall exclude the
period of time, if any,
(i) after the defendant made a written offer
which complied with the requirements of
subdivision (b)(2), provided that the
plaintiff obtained a recovery which did not
exceed the amount described in subdivision
(b)(3), or
(ii) during which the plaintiff caused delay
of the trial.
Pa.R.C.P. 238 (emphases added).
Plaintiff filed a timely motion for delay damages herein. There was no
dispute that Plaintiff was entitled to delay damages; the controversy centered
on the amount of such damages.11 MVCHS filed a response in which it alleged
that the three periods for which Plaintiff sought and received discovery
extensions should be excluded from the calculation. In addition, MVCHS
pointed to three shorter periods of delay when Plaintiff failed to timely file
pretrial statements and expert reports. Finally, MVCHS argued that the entire
____________________________________________
11Although MVCHS submitted a written settlement offer prior to trial, Plaintiff’s
recovery exceeded that offer by more than 125%.
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two-year period from 2015-2017 should be excluded for purposes of the delay
damages calculation because consolidation delayed trial for that period.
The trial court found that the three periods when Plaintiff requested and
received extensions of discovery were delays attributable to Plaintiff. Trial
Court Opinion, 3/6/20, at 12. In each instance, the trial court found that the
extensions were sought to enable Plaintiff to collect additional medical records
to submit to her experts for review, and not due to any recalcitrant conduct
on the part of Defendants. Accordingly, the trial court excluded the time from
August 27, 2014 through December 31, 2016, which was the entire extended
discovery period. In rejecting Plaintiff’s argument that these discovery
extensions did not delay trial, the court explained that, “a trial date is not set
until discovery is closed and Pre-Trial Statements are filed.” Id. at 13.
We review a trial court’s ruling under Rule 238 for an abuse of discretion.
Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa.Super 2009). We will not
reverse a decision of the trial court regarding the imposition of such damages
absent such an abuse. Id.Plaintiff contends that generally, the requests to extend discovery were
sought to permit Plaintiff to locate and serve a defendant, collect medical
records, consult with experts, take depositions, and other similar tasks that
normally cause delay during the discovery period. Plaintiff directs our
attention to Kuchak v. Lancaster, 547 A.2d 372, 375 (Pa.Super. 1988), a
medical malpractice action wherein this Court found that, in calculating delay
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damages, the plaintiff was not responsible for a forty-eight-month delay
between the filing of the complaint and the verdict in favor of the plaintiff,
despite all requests for continuances being made by the plaintiff. In Kuchak,
plaintiff sought discovery extensions in order to depose each medical provider
and seek expert review of providers’ actions. In addition, there were delays
due to the unavailability of medical providers and attorney scheduling
conflicts. According to Plaintiff, this Court characterized such delays in
Kuchak as “normal,” “always present,” and “naturally affect[ing] the length
of discovery.” Id. at 375. Further, this Court refused “to categorically impute
natural delays in discovery to plaintiffs unless it is demonstrated that the
plaintiff failed to take reasonable and normal steps to prepare his case and
proceed to trial.” Id. Plaintiff contends that, as in Kuchak, she prepared her
case “expeditiously” and the continuances were not due to her failure to
proceed diligently, but attributable to normal events in the course of
discovery.
MVCHS maintains that the trial court properly determined that delay
damages commenced on April 1, 2015, but then concluded that she was not
entitled to delay damages at that time since she caused “significant delay.”
MVCHS’s brief at 23. Additionally, MVCHS points out that the trial court did
not exclude from the calculation of delay damages an additional fifty-four days
of delay caused by Plaintiff in 2017. Id. at 24.
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At issue is whether the delay occasioned by discovery extensions at
Plaintiff’s request delayed the trial of this case. In Tindall, we held that the
trial court misinterpreted Rule 238 when it imposed delay damages for the
period when trial was postponed due to a continuance requested by plaintiff’s
counsel and the defendants were ready to proceed. We held therein that the
delay in trial was not the result of any action by the defendants or the court
system, and that the plaintiff was not entitled to delay damages for that
period. See also Wirth v. Miller, 580 A.2d 1154, 1156 (Pa.Super. 1990)
(reversing the award of delay damages for the period from March 22, 1989
when trial was originally scheduled to commence, and May 10, 1989, when
trial was rescheduled, because the delay of trial was at plaintiff’s request).
The situation here does not involve the continuance of the trial per se.
Rather, it involves extensions of the time for discovery that are commonplace
and expected during the preparation of complex litigation. As the explanatory
note to Rule 238 states, “not every procedural delay is relevant to the issue
of delay damages, but only such occurrences as actually cause delay of the
trial.” Pa.R.C.P. 238 Explanatory Comment.
In Kuchak, we refused “to categorically impute natural delays in
discovery to plaintiffs unless it is demonstrated that the plaintiff failed to take
reasonable and normal steps to prepare his case and proceed to trial.”
Kuchak, supra at 293. In that case, the trial court “specifically found that
[plaintiff] had expeditiously prepared his case,” continuances were necessary
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as discovery was incomplete, and that the non-completion of discovery did
not result from plaintiff’s “failure to proceed diligently.” Id.In the case sub judice, the trial court made no finding that Plaintiff
required discovery extensions because she had not proceeded diligently.
Rather, the trial court’s holding suggests that the discovery continuances
count against Plaintiff simply because she requested them. In accord with
Kuchak, supra, we decline to endorse the trial court’s position that every
extension of discovery sought by a plaintiff in a complicated medical
malpractice case ipso facto constitutes a delay of trial merely because a trial
date is not set until discovery is closed. There are valid reasons why discovery
may need to be extended, especially in complex cases with multiple
defendants and attorneys.
We note that MVCHS was served in this case on April 1, 2014 . It filed
its answer and new matter on July 17, 2014. Two weeks later, on August 1,
2014, a pre-trial deficiency order issued because Plaintiff failed to file a pretrial
statement. To avoid the imposition of sanctions, Plaintiff sought the first
extension of discovery on August 27, 2014. In our view, Plaintiff had virtually
no opportunity to engage in discovery with MVCHS. Furthermore, MVCHS did
not allege, nor did the trial court find, that during this short interval Plaintiff
failed to take reasonable and normal steps to prepare her case or was not
diligent in moving the case to trial.
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For these reasons, we vacate the award of delay damages. In re-
calculating delay damages following the limited new trial, we direct the trial
court to determine whether, during the periods Plaintiff sought and obtained
discovery extensions, Plaintiff displayed a lack of diligence that delayed the
trial of this case, and assess delay damages accordingly.
Judgment affirmed in part and vacated in part. Orders vacated denying
post-trial motion for limited new trial and assessing delay damages. Case
remanded for a limited new trial as to future medical expenses and
reassessment of delay damages. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2021
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