J-A04029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAMI D. PSCOLKA AND AARON M. IN THE SUPERIOR COURT OF
PSCOLKA, HER HUSBAND, PENNSYLVANIA
Appellant
v.
KEVIN BOEHME, M.D.,
Appellee No. 987 WDA 2014
Appeal from the Judgment Entered June 11, 2014
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2011-7946
BEFORE: BOWES, OLSON AND STRASSBURGER, JJ*
MEMORANDUM BY OLSON, J.: FILED JUNE 22, 2015
Appellants, Tami D. Pscolka (“Tami”) and Aaron M. Pscolka, appeal
from the judgment entered on June 11, 2014. We affirm.
The relevant factual background of this case is as follows. In mid-
September 2010, Tami experienced pain in her lower back. On September
22, 2010, she visited Dr. Kevin Boehme (“Boehme”), her primary care
physician. Boehme was aware that Tami previously suffered from a lumbar
disc herniation and a disc protrusion. Boehme diagnosed Tami with a
muscle strain. On Saturday, September 25, 2010, Tami went to the
emergency room of Canonsburg General Hospital because she was still
experiencing pain in her lower back. Tami was treated by Dr. Gregory S.
Margeni (“Margeni”). Tami requested an MRI; however, Margeni diagnosed
Tami with sciatica. After leaving Canonsburg General Hospital, Tami
* Retired Senior Judge assigned to the Superior Court
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continued to experience problems. She did not call Boehme, however, as
she was unaware if he had an answering service.
On Monday, September 27, 2010, Tami called Boehme and he ordered
an MRI. An MRI was performed at Canonsburg General Hospital that
morning. Tami then went to Boehme’s office. At 4:00 p.m., Boehme was
notified of the MRI results showing there was a large herniation in the same
location as Tami’s previous disc herniation. Boehme’s nurse called Tami,
informed her of the MRI results, and told her to see a neurosurgeon. Tami
immediately called the neurosurgeon but was informed that the office was
closed.
On September 28, 2010, the neurosurgeon examined Tami and
diagnosed her with cauda equine syndrome caused by the large disc
herniation. The neurosurgeon sent Tami to Allegheny General Hospital and
surgery was performed the following day. As a result of the injuries
allegedly caused by Tami’s large disc herniation and cauda equine syndrome,
Tami continues to suffer from lower back pain and other ailments.
The relevant procedural history of this case is as follows. Appellants
instituted the instant action via writ of summons on November 3, 2011. On
August 20, 2012, Appellants filed their second amended complaint against
Boehme, Margeni, Canonsburg General Hospital, West Penn Allegheny
Health System, Inc. d/b/a Allegheny General Hospital, and Allegheny
Specialty Practice Network. Appellants alleged the defendants committed
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medical malpractice. On April 15, 2014, Appellant entered into a settlement
agreement with all defendants other than Boehme. Pursuant to that
settlement agreement, on April 29, 2014, the trial court dismissed all
defendants other than Boehme.
On April 28, 2014, Appellants filed two motions in limine. The first
sought to exclude evidence relating to the negligence of any health care
provider other than Boehme. The second sought to exclude evidence
regarding the comparative negligence of Appellants. The trial court twice
entertained argument on the motions prior to trial and reserved ruling on
both motions. Trial began on May 12, 2014. On the morning of May 13,
2014, the trial court granted the motion relating to comparative negligence.
On the morning of May 14, 2014, the trial court granted in part and denied
in part the motion relating to the negligence of the settling defendants.
Specifically, the trial court permitted Appellants’ expert witnesses to testify
regarding the settling defendants’ negligence insofar as their testimony was
consistent with their expert reports.
On May 16, 2014, the jury returned a verdict in favor of Boehme. It
found that Boehme was not negligent; therefore, it did not reach the special
interrogatory regarding causation. On May 23, 2014, Appellants filed a post-
trial motion. On May 29, 2014, the trial court denied the post-trial motion.
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On June 11, 2014, judgment was entered in favor of Boehme. This timely
appeal followed.1
Appellants present five issues for our review:
1. Whether Appellants’ motion in limine to preclude evidence of the
negligence of other health care providers should have been
granted?
2. Whether [Boehme] should have been permitted to introduce
evidence and testimony regarding the negligence of co-
defendants who had signed joint tortfeasors’ releases with
Appellants prior to trial, who had been dismissed from the
action, and against whom Boehme had never asserted any cross
claims nor introduced any evidence before trial?
3. Whether Appellants’ expert medical witnesses should have been
compelled to testify on behalf of Boehme regarding the
negligence of co-defendants who had signed joint tortfeasors’
releases with Appellants prior to trial, who had been dismissed
from the action, and against whom Boehme had never asserted
any cross claims nor introduced any evidence before trial?
4. Whether Appellants’ motion in limine to exclude evidence
regarding the comparative negligence of [Appellants] should
have been granted prior to two days after the start of trial?
5. Whether the curative instruction given to the jury by the court at
the conclusion of trial regarding the comparative negligence of
Appellants was sufficient to overcome the prejudice caused by
the testimony elicited by [Boehme] and the closing statement of
his counsel?
Appellants’ Brief at 3 (certain capitalization and honorifics omitted).
1
On June 24, 2014, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 15, 2014, Appellants filed their concise
statement. On August 22, 2014, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellants’ concise
statement.
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Although stated as five separate questions, Appellants essentially
present two issues for our review – whether the trial court erred in its
rulings on the relevant motions in limine. “When reviewing a ruling on a
motion in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound discretion of
the trial court and our review is for an abuse of discretion.”
Commonwealth v. Parker, 104 A.3d 17, 21 (Pa. Super. 2014) (citation
omitted). We conclude that even if the trial court erred by not granting both
motions in limine prior to trial, such error was harmless. “An error is
harmless if the court determines that the error could not have contributed to
the verdict.” Bensinger v. Univ. of Pittsburgh Med. Ctr., 98 A.3d 672,
683 n.12 (Pa. Super. 2014) (internal alterations and citation omitted).
As to the comparative negligence motion in limine, it is well-settled
under Pennsylvania law that “where a jury finds no negligence on the part of
a defendant, purported error regarding questions of comparative and/or
contributory negligence are not prejudicial and cannot serve as a basis for
the award of a new trial.” Boyle v. Indep. Lift Truck, Inc., 6 A.3d 492,
496 (Pa. 2010) (citations omitted); see Jewelcor Jewelers & Distribs.,
Inc. v. Corr, 542 A.2d 72, 80 (Pa. Super. 1988), appeal denied, 569 A.2d
1367 (Pa. 1989); Mickey v. Ayers, 485 A.2d 1199, 1203 (Pa. Super.
1984); Robinson v. Philadelphia, 478 A.2d 1, 3-4 (Pa. Super. 1984); Ries
v. MTD Products, Inc., 456 A.2d 211, 214 (Pa. Super. 1983); Dean v.
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Trembley, 137 A.2d 880, 883 (Pa. Super. 1958); Whitton v. H.A. Gable
Co., 200 A. 644, 646 (Pa. 1938) (“[A]s the jury found no negligence on the
part of appellee the question of contributory negligence passes out of the
case, and any error in the charge in this respect would not have been
prejudicial.”); see also Harkins v. Calumet Realty Co., 614 A.2d 699, 707
(Pa. Super. 1992) (same with respect to superseding cause). As noted
above, the jury in this case found that Boehme was not negligent and
therefore did not reach the issue of causation. Accordingly, any error in
permitting evidence of comparative negligence was harmless.
As to the motion in limine regarding evidence of the settling
defendants’ negligence, we conclude that evidence of the settling
defendants’ negligence could only have affected the issue of causation.
Therefore, since that evidence did not impact the jury’s determination as to
whether Boehme deviated from the standard of care in his treatment of
Tami, we likewise find any alleged error to be harmless. As
[t]he jury found no negligence on the part of [the] defendant,
[it] never reached the issues of causation or damages.
Therefore, any error with regard to the testimony on causation
was harmless and cannot be the basis for a new trial. . . .
Plaintiffs suggest that the jurors may have decided there was no
negligence because they thought there was no causation, but
this is sheer conjecture.
Zoppi v. Seok, 51 Pa. D. & C.4th 541, 554–555 (C.C.P. Lehigh 2001), aff’d,
804 A.2d 72 (Pa. Super. 2002) (unpublished memorandum); see Parr v.
Ford Motor Co., 2014 WL 7243152, *14 (Pa. Super. Dec. 22, 2014) (en
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banc) (error in admission of causation evidence was harmless as the jury did
not reach the issue of causation).2 Accordingly, the admission of evidence
relating to the negligence of the settling defendants did not contribute to the
jury’s verdict. As any error in not granting Appellants’ motion in limine
regarding the settling defendants’ negligence was harmless, Appellants are
not entitled to relief.
Judgment affirmed.
Strassburger, J. joins the memorandum.
Bowes, J., concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2015
2
All of the cases cited above relating to why the admission of the
comparative negligence evidence was, at the most, harmless error also
indicate that when the jury does not reach the issue of causation, any error
relating to the admission of causation evidence is harmless.
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