J-A31015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICE LONG, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
VICTOR J. FARALLI, M.D.; LEBANON
ORTHOPEDIC ASSOCIATES, LTD.,
Appellees No. 614 MDA 2014
Appeal from the Judgment Entered May 1, 2014
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2008-00652
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 15, 2014
Patrice Long appeals from the judgment entered on a jury verdict in
favor of Victor J. Faralli, M.D. and Lebanon Orthopedic Associates, LTD in a
medical malpractice action.1 She alleges that the trial court erred in
permitting the defense to introduce the expert testimony of a physician who
was not board-certified in the specialty at issue or in a related specialty. In
addition, she claims that a mistrial was warranted when the defense expert’s
prejudicial reference to care furnished by a subsequent treating physician
violated a stipulation. We affirm.
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1
Since the claims against Lebanon Orthopedic Associates, LTD are based
solely on vicarious liability for the conduct of Dr. Faralli, we will refer to both
parties as “Dr. Faralli” or as “the Defendant” or “the defense.”
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The evidence adduced at trial established the following. 2 On July 13,
2005, Ms. Long’s fingertip was amputated after she caught it in a drawer.
She sought medical care at Good Samaritan Hospital, and was treated by Dr.
Faralli, an orthopedic surgeon. Dr. Faralli surgically closed the wound using
a V-Y flap procedure and placed Ms. Long on an antibiotic. Ms. Long
returned to Dr. Faralli for follow-up appointments on July 14, 21, and 28,
and August 4 and 10, 2005. Dr. Faralli’s July office notes confirm that Ms.
Long expressed concern that the wound was infected.
On July 23, 2005, Appellant’s friend was changing the bandage when
she noticed an increase in redness, swelling and discharge. Ms. Long
telephoned Lebanon Orthopedic to convey this concern. Ms. Long testified
that, at her regularly-scheduled appointment on July 28, 2005, she told Dr.
Faralli that her pain was increasing, the finger was turning purple, and that
the swelling was worsening. Dr. Faralli’s office note acknowledged her
concerns, but stated that no signs of infection were observed.
Ms. Long claimed that her symptoms persisted and grew more severe.
She called Dr. Faralli to obtain more pain medication. At her August 4, 2005
follow-up appointment, she asked for a referral to Hershey Medical Center
for a second opinion. Dr. Faralli declined to refer her because he did not see
signs of infection. One week later on August 10, 2005, Ms. Long told the
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2
Since only a portion of the trial notes of testimony are contained in the
certified record, we rely heavily upon the trial court’s recitation of the facts.
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doctor that she had a yellow line and asked whether that indicated infection.
The physician’s notes stated that he saw no yellow line or sign of infection.
On August 13, 2005, Ms. Long went to Good Samaritan Hospital’s
emergency room with complaints of discharge coming from the wound. The
wound was cultured and the physician prescribed Keflex, an antibiotic. Two
days later, a hospital physician notified Ms. Long that culture revealed that
she had Methicillin Resistant Staphylococcus Aureus (“MRSA”). The
physician discontinued the Keflex, prescribed Bactrim, and instructed her to
follow up with Dr. Faralli.
Dr. Faralli supervised Ms. Long’s treatment for the MRSA infection
from August 13, 2005 through October 13, 2005. Although Ms. Long
continued to believe that the wound was infected, Dr. Faralli’s notes
indicated that pain, swelling and redness were decreased, there was no
discharge, and that her range of motion was good. He maintained her on
Bactrim, and, on October 6, 2005, Dr. Faralli ordered a bone scan and
referred Ms. Long to Hershey for a second opinion. On October 13, 2005,
Dr. Faralli advised Ms. Long that the bone scan results did not indicate
osteomyelitis, infection in the bone of the finger, and he stayed the course
until she was seen at Hershey.
Ms. Long was seen at Hershey by Dr. Randy M. Hauck on October 25,
2005. The radiologist interpreted the bone scan results as suggestive of
osteomyelitis and Dr. Hauck ordered an x-ray. He subsequently
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recommended amputation of the finger in light of Ms. Long’s history of
diabetes, and Ms. Long agreed. The pathology report on the amputated
digit was negative for osteomyelitis.
Ms. Long originally commenced this professional liability action against
Dr. Hauck and Hershey Medical Center, as well as Dr. Faralli and his
professional corporation. Judgment of non pros was entered in favor of Dr.
Hauck and the Hershey defendants when Ms. Long failed to file certificates of
merit as to these medical professionals within the time allotted by Pa.R.C.P.
1042.3. The parties then stipulated to the transfer of the case to Lebanon
County for further proceedings against Dr. Faralli and his practice.
Prior to trial, Ms. Long filed several motions in limine regarding expert
testimony. She alleged that the opinions of Dr. John Stern and Dr. William
Kirkpatrick were duplicative and cumulative. Alternatively, she alleged,
pursuant to MCARE, 40 P.S. § 1303.512(c)(2), that Dr. Stern was not
qualified to testify as to the standard of care of an orthopedic surgeon since
he was not board-certified in the same subspecialty as Dr. Faralli. Moreover,
she asserted that Dr. Stern’s second supplemental report was redundant
standard of care opinion and unfairly critical of Dr. Hauck. See Motion to
Exclude the Expert Testimony of John Stern, M.D. Pursuant to Pa.R.E. 403
and 40 P.S. § 1303.512(c)(2). Ms. Long argued that the exclusion of the
testimony of John Stern, M.D. would not be prejudicial since the defense had
a second standard-of-care expert. Id. at ¶¶60-61. Thereafter, the parties
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entered into a stipulation to resolve these outstanding issues. The
stipulation provided in part:
....
2. The only testimony that will be admitted regarding Dr. Hauck
and Hershey Medical Center is recitation of the facts. The facts
include the care that was received at Hershey Medical Center
and that an amputation was performed.
3. No expert will offer criticism or support for Dr. Hauck’s plan of
care. The Plaintiff’s expert will not testify that Dr. Hauck’s plan
of care or ultimate treatment was appropriate for the
circumstances. The Defense expert will not testify that Dr.
Hauck’s plan of care was inappropriate for the circumstances,
that there were reasonable alternatives, or that further testing
should have been done.
....
5. Dr. Stern’s third report, served on Plaintiff on February 26,
2014, is excluded. Accordingly, Dr. Stern will be confined to
testifying consistent with his February 7, 2011 report and June
30, 2013 supplemental report.
6. Due to the duplicative nature of Dr. Stern’s first report and
Dr. Kirkpatrick’s report, Defense Counsel will choose one expert
to testify at the trial of this matter.
....
Stipulation of the Parties to Resolve the Outstanding Motions in Limine,
3/7/14, at 1-2.
A jury trial commenced on March 12, 2014. Ms. Long presented
expert testimony from Dr. Stephen H. Marcus, an orthopedic surgeon,
regarding Dr. Faralli’s alleged breach of the applicable standard of care and
causation based on Ms. Long’s version of the events. The defense offered
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the expert testimony of Dr. John Stern, a physician double board-certified in
internal medicine and infectious disease from the Pennsylvania Hospital at
the University of Pennsylvania. Dr. Stern relied largely upon Dr. Faralli’s
notes and the hospital records in forming his opinion that Dr. Faralli’s
treatment met the standard of care.
During the course of his direct testimony, Dr. Stern was asked what he
found important in his review of Dr. Hauck’s records. In response, he
stated, “I was surprised that he took the finger off or wanted to take the
finger off.” Id. at 152. Plaintiff’s counsel objected and moved for a mistrial
at sidebar. The trial court initially reserved its ruling on the motion for
mistrial, but subsequently denied the motion.
The jury returned a verdict in favor of Dr. Faralli and his practice. Ms.
Long filed a motion for post-trial relief, which the trial court denied on March
21, 2014. Ms. Long timely appealed and raises two issues:
A. Did the trial court err in denying the Appellant’s Motion for
Post Trial Relief requesting a new trial?
i. Did the Lebanon County Court of Common Pleas err
when it allowed expert opinion of standard of care by a
doctor who was not qualified to give such an opinion
pursuant to 40 P.S. § 1303.512(c), (e)?
a. Was this issue properly raised after the voir dire of
the defense expert?
ii. Did the Lebanon County Court of Common Pleas err by
failing to grant a mistrial when the expert for the
Appellee’s testified outside the scope of the parties
explicit stipulation?
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Appellant’s brief at 5.
“There is a two-step process that a trial court must follow when
responding to a request for new trial.” Morrison v. Commonwealth,
Dep't of Pub. Welfare, 646 A.2d 565, 571 (Pa. 1994); see Riccio v.
Amer. Republic Ins. Co., 705 A.2d 422, 426 (Pa. 1997). First, the trial
court must decide whether one or more mistakes occurred at trial. If the
trial court concludes that a mistake (or mistakes) occurred, it must then
determine whether the mistake was a sufficient basis for granting a new
trial. Ferguson v. Morton, 84 A.3d 715, 719-720 (Pa.Super. 2013). The
harmless error doctrine underlies every decision to grant or deny a new trial.
“A new trial is not warranted merely because some irregularity occurred
during the trial or another trial judge would have ruled differently; the
moving party must demonstrate to the trial court that he or she has suffered
prejudice from the mistake.” Id.
When this Court reviews a trial court order granting or denying a new
trial, our analysis is also dual-pronged. Morrison, supra at 571. If, after
examining the alleged error, we find that an error did occur, we determine
whether the trial court abused its discretion in ruling on the request for a
new trial. Id. “Where the record adequately supports the trial court's
reasons and factual basis, the court did not abuse its discretion.” Id.
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Ms. Long’s first issue involves the interpretation and application of 40
P.S. § 1303.512(c) and (e)3 of the MCARE statute, which is a question of
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3
§ 1303.512. Expert qualifications
(a) GENERAL RULE.-- No person shall be competent to offer an
expert medical opinion in a medical professional liability action
against a physician unless that person possesses sufficient
education, training, knowledge and experience to provide
credible, competent testimony and fulfills the additional
qualifications set forth in this section as applicable.
(b) MEDICAL TESTIMONY.-- An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet
the following qualifications:
(1) Possess an unrestricted physician's license to
practice medicine in any state or the District of
Columbia.
(2) Be engaged in or retired within the previous five
years from active clinical practice or teaching.
Provided, however, the court may waive the requirements of this
subsection for an expert on a matter other than the standard of
care if the court determines that the expert is otherwise
competent to testify about medical or scientific issues by virtue
of education, training or experience.
(c) STANDARD OF CARE.-- In addition to the requirements set
forth in subsections (a) and (b), an expert testifying as to a
physician's standard of care also must meet the following
qualifications:
(1) Be substantially familiar with the applicable
standard of care for the specific care at issue as of
the time of the alleged breach of the standard of
care.
(Footnote Continued Next Page)
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law. Wexler v. Hecht, 928 A.2d 973, 977 (Pa. 2007); Renna v. Schadt,
64 A.3d 658 (Pa.Super. 2013). Thus, our standard of review is de novo and
our scope of review is plenary. Gbur v. Golio, 963 A.2d 443 (Pa. 2009).
The law is well settled that decisions regarding admission of expert
_______________________
(Footnote Continued)
(2) Practice in the same subspecialty as the defendant
physician or in a subspecialty which has a substantially
similar standard of care for the specific care at issue,
except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified
by an approved board, be board certified by the
same or a similar approved board, except as
provided in subsection (e).
(d) CARE OUTSIDE SPECIALTY.-- A court may waive the same
subspecialty requirement for an expert testifying on the standard
of care for the diagnosis or treatment of a condition if the court
determines that:
(1) the expert is trained in the diagnosis or
treatment of the condition, as applicable; and
(2) the defendant physician provided care for that
condition and such care was not within the
physician's specialty or competence.
(e) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND
KNOWLEDGE.-- A court may waive the same specialty and board
certification requirements for an expert testifying as to a
standard of care if the court determines that the expert
possesses sufficient training, experience and knowledge to
provide the testimony as a result of active involvement in or full-
time teaching of medicine in the applicable subspecialty or a
related field of medicine within the previous five-year time
period.
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testimony, like other evidentiary decisions, are within the sound discretion of
the trial court. Phillips v. Lock, 86 A.3d 906 (Pa.Super. 2014). We may
reverse only if we find an abuse of discretion or error of law. Smith v.
Paoli Mem'l Hosp., 885 A.2d 1012, 1016 (Pa.Super. 2005).
Ms. Long contends that Dr. Faralli’s negligence occurred at two distinct
times, the first encompassing the post-surgical follow-up leading up to the
diagnosis of MRSA on August 13, 2005, and the second, the treatment of the
MRSA infection. She concedes that Dr. Stern was qualified under subsection
(e) to offer expert opinion regarding proper treatment of the infection during
the latter period. She maintains that, despite his board certifications in
infectious disease and internal medicine, Dr. Stern was not qualified under
MCARE subsection (c)(3) to opine as to the standard of care applicable to an
orthopedic surgeon in recognizing the signs and symptoms and diagnosing
infection. Nor, she contends, did Dr. Stern have sufficient training and
experience in a related field of medicine to fall within the exception of
subsection (e) for purposes of rendering an opinion as to the reasonableness
of his diagnosis.
Ms. Long’s argument mirrors one advanced in Lombardo v. Gardner,
82 Pa. D.&C.4th 233 (Lawrence Co. 2007), a malpractice case against an
orthopedic surgeon for failing to diagnose an arterial blood clot following hip
surgery. The trial court found that, although the vascular surgeon was
familiar with the signs and symptoms of circulatory problems, and consulted
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with orthopedists regarding treatment of such conditions, such facts did not
equate to special knowledge “regarding how orthopedists are expected or
supposed to think about patients after orthopedic surgery.” Id. at 249. The
court did not permit the vascular surgeon to render expert standard of care
testimony regarding diagnosis on behalf of the defendant orthopedic
surgeon. However, this ruling was not subjected to appellate scrutiny.
Ms. Long also directs our attention to Vicari v. Spiegel, 989 A.2d
1277 (Pa. 2010), where our High Court held that a determination of
“relatedness” for purposes of subsection (e) required both an examination of
the specific care at issue and the testimony the expert will render. In
Vicari, an oncologist was permitted to render standard of care testimony on
the propriety of chemotherapy on behalf of the defendant otolaryngologist.
Since the issue involved the treatment plan for this type of cancer, the Court
reasoned that oncologists, who routinely develop such plans, were qualified
to opine on the reasonableness of scheduling chemotherapy.
Dr. Faralli characterizes the issue in Vicari as whether the patient
should have been referred to a medical oncologist and provided
chemotherapy as an option. The Vicari Court found board-certifications in
internal medicine, otolaryngology, and radiation oncology to be related for
purposes of cancer treatment, noting the multi-specialty approach. Dr.
Faralli also contends that Lombardo is not authoritative, and furthermore,
the trial court therein was handicapped by a limited record as there was no
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voir dire of the expert. Dr. Faralli points to our decision in Renna v.
Schadt, 64 A.3d 658 (Pa.Super. 2013), where we affirmed the trial court’s
decision permitting a pathologist to testify as to the standard of care of a
surgeon in choosing to perform a fine needle biopsy to obtain a specimen for
testing, which was based upon an extensive voir dire. Dr. Faralli contends
that the exhaustive voir dire of Dr. Stern presents an even stronger case
than Renna for permitting him to testify as to the standard of care
applicable to both the diagnosis and treatment of infection.
The record reveals that during voir dire, Dr. Stern testified that he was
familiar with the standard of care for diagnosing and treating infections.
N.T., 3/13/14, at 94. He acknowledged that other specialties treat wound
infections, including family physicians, obstetricians, surgeons, and
orthopedic surgeons in particular. He maintained that the standard of care
for the diagnosis and treatment of an infection in an open wound is the
same, regardless of the specialty of the treating physician. Id. at 96. Dr.
Stern explained that there are areas of overlap in medicine, and even
though he does not operate, he would care for surgical patients, and
physicians who operate would care for infections. Id. at 97.
On cross-examination on voir dire of his qualifications, Dr. Stern
agreed that it is the surgeon’s job to recognize the signs and symptoms of
infection initially and to initiate treatment. Id. at 100. It is only when the
surgeon believes the infection is beyond his expertise that he would seek a
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consultation from infectious disease. Id. at 102. He opined that, having
reviewed Ms. Long’s records, he did not believe that an infectious disease
consult was necessary; Dr. Faralli had the skills to recognize a problem if
there was one. Id. at 102. While Dr. Stern admittedly did not undergo the
same training as an orthopedic specialist, he pointed to his twenty-six-year-
involvement in the hospital training program for orthopedic interns,
residents, fellows, and attending physicians as the basis for his familiarity
with the extent of their training.
At the conclusion of voir dire on Dr. Stern’s qualifications, counsel for
Ms. Long moved to preclude the expert from testifying as to the standard of
care of an orthopedic surgeon in diagnosing infection based upon the MCARE
Act’s same specialty requirement. Plaintiff argued that the expert was not
qualified to speak to whether an orthopedic surgeon such as Dr. Faralli
should have recognized the signs of infection prior to August 13, 2005. Id.
at 106. Plaintiff characterized the issue as focusing on when the surgeon
should have realized that he could not treat the infection. Id. Ms. Long had
no issue, however, with the expert discussing the nature of the treatment.
The defense initially labeled Plaintiff’s attack on Dr. Stern’s
qualifications as “disingenuous” in light of her earlier motion in limine which
characterized the opinions of the two proffered defense experts, one an
orthopedic surgeon, and Dr. Stern, an infectious disease specialist, as
cumulative. Furthermore, “due to the duplicative nature of Dr. Stern’s first
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report and Dr. Kirkpatrick’s report,” the parties stipulated that, “Defense
counsel will choose one expert to testify at the trial of this matter.”
Stipulation of the Parties to Resolve the Outstanding Motions in Limine,
3/7/14, at 1. According to the defense, Plaintiff’s argument at trial that Dr.
Stern was not qualified to testify regarding the standard of care for an
orthopedic surgeon was inconsistent with and precluded by her earlier
position that the testimony was cumulative, which culminated in the
stipulation. Dr. Faralli characterizes the stipulation as law of the case.
The trial court relied upon Vicari, supra and Gbur, supra, in
overruling Ms. Long’s objection. In Vicari, as noted, an oncologist was held
to be qualified to testify as an expert regarding the care rendered by the
defendants, an otolaryngologist and a radiation oncologist. Similarly, in
Gbur, the Supreme Court sanctioned the decision of the trial court allowing
a radiation oncologist to testify to the standard of care applicable to the
defendant urologist under the same subspecialty exception of 40 P.S. §
1303.512(e). Based on a thorough voir dire that established that Dr. Stern
was involved in the training of orthopedic surgeons for years and
experienced in the diagnosis and treatment of infections, the trial court
found Dr. Stern qualified to testify as an expert for the diagnosis and
treatment of infections under the subsection (e) exception to the same
specialty requirement. N.T., 3/13/14, at 110; Trial Court Opinion, 5/27/14,
at 9.
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The court also agreed with the defense that the stipulation was a
concession by Plaintiff that either of the two defense experts was qualified to
testify as to the standard of care in the diagnosis and treatment of infection.
Id. In further support of its ruling, the trial court noted little difference in
the standard of care opinions of Plaintiff’s expert and Dr. Stern. The trial
court believed that whether Dr. Faralli was negligent turned on whether the
fact-finder believed Ms. Long’s account of the events or Dr. Faralli’s office
notes. “If Appellant’s recollection[s] of the wound and her symptoms were
correct, then Appellee’s actions or inactions in diagnosing and treating the
infection were below the applicable standard of care of an orthopedic
surgeon. If Appellee’s notes reflect an accurate description of the wound
and the healing process, then Appellee’s actions did not fall below the
standard of care of an orthopedic surgeon in the diagnosis and treatment of
post-operative infections.” Trial Court Opinion, 5/27/14, at 6.
Although Dr. Stern was familiar with the standard of care for the
diagnosis of infection, since he did not practice and was not board-certified
in the same specialty as Dr. Faralli, we agree with the trial court that he was
not qualified to render expert standard of care testimony by virtue of
subsection (c). However, in Vicari, our Supreme Court construed the §
512(e) exception as a waiver of the same board and same specialty
requirements where the physician had sufficient training, experience, and
knowledge in a related field of medicine. The Vicari Court cautioned that,
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“‘relatedness’ of one field of medicine to another for purposes of subsection
512(e) cannot be established in a broad and general sense that will
henceforth be applicable to all situations and all claims[,]” but “can only be
assessed with regard to the specific care at issue.” Vicari at 1284. The
expert and the defendant physician must have sufficiently related training,
experience, and practices to permit one to conclude that the proffered
expert’s “expertise would necessarily extend to the standards of care
pertaining in the defendant-physician’s field.” Id. at 1283-84. The trial
court found that although Dr. Stern did not undergo the same training as an
orthopedic specialist, due to his lengthy involvement in the hospital training
program for orthopedic interns, residents, fellows, and attending physicians,
he was familiar with the extent of their training. We find no abuse of
discretion on the part of the trial court.
Additionally, we agree with the trial court that the parties’ stipulations
were intended to dispose of all issues raised in the motions in limine. In her
pretrial motion in limine, Ms. Long asserted that Dr. Stern was not qualified
to testify as to the standard of care under MCARE’s same specialty
requirement. She also argued, in the alternative, that the opinions of Drs.
Stern and Fitzpatrick were cumulative. The parties arrived at a stipulation
that only one of the defense experts would testify, and that the defense
could choose which one. Furthermore, it was stipulated that Dr. Stern was
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confined to testifying consistently with his February 7, 2011 and June 30,
2013 reports.
The stipulation was expressly intended to resolve all outstanding
motions in limine. Since the challenge to Dr. Stern’s qualifications and the
argument that the experts’ testimony was cumulative were advanced in the
alternative, and the parties agreed to one defense expert and to limit the
scope of Dr. Stern’s testimony, we agree with Dr. Faralli that Plaintiff
abandoned any objection to Dr. Stern’s qualifications. Plaintiff’s tactic of
waiting until the Defendant offered Dr. Stern as his trial expert, rather than
Dr. Fitzpatrick, and resurrecting the argument that he was unqualified under
MCARE, undermines notions of fundamental fairness and fair play.
Finally, we are unable to verify if the record supports the trial court’s
finding that Dr. Stern and Plaintiff’s expert, Dr. Marcus, offered essentially
the same opinions regarding the standard of care, but merely premised their
opinions as to whether there had been a deviation on the parties’ differing
versions of the facts. We have no basis to dispute the trial court’s
characterization of the evidence because only the transcript of Dr. Stern’s
testimony is contained in the certified record.4
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4
The record reflects that counsel for Ms. Long requested the official court
reporter to “produce, certify and file the transcript in this matter in
conformity with rule 1922 of the Pennsylvania Rules of Appellate Procedure.”
Notice Regarding Transcript of Record, 4/3/14, at 1. The court reporter
notified the parties on April 7, 2014 that “the transcript of the record as
(Footnote Continued Next Page)
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Next, Ms. Long contends that the stipulation of the parties was
violated when Dr. Stern criticized Dr. Hauck’s recommendation that her
finger be amputated. Specifically, on direct examination, Dr. Stern was
asked what he “found to be important in Dr. Hauck’s records[.]” Dr. Stern
responded, “I was surprised that he took the finger off or wanted to take the
finger off.” N.T., 3/13/14, at 152. Counsel objected at sidebar that Dr.
Stern’s statement was a criticism of Dr. Hauck’s treatment, that it violated
the stipulation, and was so prejudicial to Plaintiff as to warrant a mistrial.
The court initially reserved its ruling on the motion for mistrial, but denied it
at the conclusion of Dr. Stern’s testimony. Ms. Long maintains that the trial
court abused its discretion in denying the mistrial because the expert’s
testimony was critical of Dr. Hauck, it violated the stipulation, and the “jury
heard testimony that was irrelevant, prejudicial, and confused the issues[.]”
Dr. Faralli counters that Dr. Stern’s single comment did not amount to
a criticism. Nor was a new trial required simply because the stipulation was
violated. The defense maintains that, when reviewed in light of the full
record and in context, the comment was “insignificant.” See Harman ex
_______________________
(Footnote Continued)
ordered to be transcribed” “was lodged in the Office of the Prothonotary”
and that the parties had five days to object to the transcript. Notice of
Lodging of Transcript of Record, 4/7/14, at 1. Appended to that filing is a
copy of the cover page of the transcript of proceedings for March 13, 2014
only. Id. at 2. Neither party objected that the transcript was incomplete.
On June 3, 2014, the file was transmitted to this Court and copies of the
docket entries were forwarded to counsel for Appellant.
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rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). It characterizes
Dr. Stern’s comment as one sentence in two and one-half days of trial
testimony that was not mentioned or referred to during the remainder of the
proceedings. Appellees’ brief at 22.
The trial court noted that the offending response from the witness was
unsolicited by counsel and that it consisted of merely “one sentence in the
middle of a great deal of testimony.” Trial Court Opinion, 5/27/14, at 7.
The court concluded that,
“when viewed in context with the rest of Dr. Stern’s testimony
and combined with the testimony from all of the other witnesses
presented over several days, that the solitary comment that Dr.
Stern was surprised, without further explanation or comment,
was not sufficient to prejudice the Appellant in the eyes of the
jury or distract the jury from the issue of whether Appellee had
breached the standard of care.”
Id. at 13.
Our standard of review of a trial court’s denial of a motion for mistrial
is whether the trial court abused its discretion. Poust v. Hylton, 940 A.2d
380, 382 (Pa.Super. 2007) (finding an abuse of discretion in failing to
declare a mistrial where defense counsel’s intentional mention of “cocaine”
in his cross-examination of plaintiff’s expert violated a pretrial order and was
highly prejudicial). "An abuse exists when 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.”
Graham v. Campo, 990 A.2d 9, 14 (Pa.Super. 2010). The trial court has
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broad discretion in making its determination as to whether a mistrial is
warranted and should grant such a motion and award a new trial only if “the
unavoidable effect of the conduct or language used was to prejudice the
factfinder to the extent that the factfinder was rendered incapable of fairly
weighing the evidence and entering an objective verdict.” Poust, supra at
385.
Again, the absence of the complete record of the trial court
proceedings has hindered our ability to assess the trial court’s reasoning in
the context of the entire trial. We cannot conclude, however, based on the
record before us, that the expert’s professed surprise at Dr. Hauck’s
recommendation of amputation was so prejudicial as to render the jury
incapable of entering an objective verdict. The stipulation of the parties did
not preclude Dr. Faralli from introducing the facts underlying Dr. Hauck’s
treatment. According to the trial court, the jury heard that Dr. Hauck
recommended amputation of the finger due to the possibility of
osteomyelitis, that Ms. Long agreed, and that pathology on the finger was
negative for osteomyelitis. In light of the foregoing, we find no abuse of
discretion in the trial court’s conclusion that Dr. Stern’s reference was not so
prejudicial as to distract the jury from the issues before it.
For the foregoing reasons, the trial court did not abuse its discretion in
denying Ms. Long a new trial.
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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