J-A22034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT M. MARSTELLER AND SHARON IN THE SUPERIOR COURT OF
M. MARSTELLER, PENNSYLVANIA
Appellants
v.
GREGORY A. HANKS, M.D.,
Appellee No. 11 MDA 2015
Appeal from the Judgment Entered December 17, 2014
in the Court of Common Pleas of Cumberland County
Civil Division at No.: 2013-03432
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2015
Appellants, Robert M. Marsteller and Sharon M. Marsteller, appeal from
the judgment entered in their medical malpractice action against Appellee,
Gregory A. Hanks, M.D., after a jury found that he was not negligent in his
treatment of Appellant, Robert M. Marsteller.1 Specifically, Appellants
challenge the court’s denial of their motion in limine that sought to preclude
testimony regarding the two schools of thought doctrine as irrelevant, and
the weight of the evidence supporting the verdict. We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
Henceforth, when we refer to “Appellant” in the singular, it will be to
Robert M. Marsteller.
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We take the following facts from the trial court’s March 23, 2015
opinion and our independent review of the record. On April 28, 2012,
Appellant fractured his leg when he fell while rollerblading. (See N.T. Trial,
10/29/14, at 38-39, 41-42, 53). Appellant’s leg was so unstable it was
“floppy.” (Id. at 42; N.T. Trial, 10/30/14, at 119). Appellee, an orthopedic
surgeon, treated Appellant at Holy Spirit Hospital. (See N.T. Trial,
10/27/14, at 46; N.T. Trial, 10/29/14, at 53). There were multiple options
for the treatment of Appellant’s primary injury, a semicircular spiral fracture
of his tibia. (See N.T. Trial, 10/27/14, at 50-51, 53). In an effort to avoid
open surgery due to a high risk of complications, Appellee placed the leg “in
a cast with closed reduction” to reduce the fracture and return the bone to
“as close to normal as possible.” (Id. at 52; see id. at 55, 60). Thereafter,
the course of treatment included monitoring the casted leg via x-ray to
determine if it was maintaining alignment, and continuing to heal properly.
(See id. at 60, 62).
On June 22, 2012, physical therapist June Perry examined Appellant
and determined that he had an apparent tibial rotation of fifteen degrees in
the healing leg, with a baseline five degree rotation in the uninjured limb.
(See N.T. Trial, 10/29/14, at 206, 209). Appellant sought a second
orthopedist’s opinion, which Appellee arranged for him at Hershey Medical
Center. (See id. at 20). On June 27, 2012, Spencer Reid, M.D., determined
that a CAT scan of the leg revealed a twenty to twenty-five degree external
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rotation. (See Dr. Reid’s Trial Deposition, 4/04/14, at 27, 41; N.T. Trial,
10/30/14, at 70). On July 5, 2012, following his consultation with Dr. Reid,
Appellant elected to undergo a surgical option involving a Taylor Spatial
Frame2 to set the leg rotation, rather than continue with Appellee’s course of
treatment. (See N.T. Trial, 10/29/14, at 23, 197).
On June 14, 2013, Appellants filed a complaint against Appellee
alleging medical malpractice in his treatment of Appellant’s fracture. The
parties filed multiple motions in limine prior to trial, including Appellants’
motion to limit testimony about the two schools of thought doctrine, which
the court denied on October 24, 2014. The case proceeded to a four-day
jury trial.
At trial, Appellee stated that a textbook written by Appellants’ expert,
Gerald Hayken, M.D., asserts that five to twenty degrees of malrotation “is
commonly what is accepted in the field[.]” (Id. at 166). Both Appellee and
his expert, John Esterhai, M.D., opined that the x-ray taken immediately
after the leg casting showed acceptable alignment, and that use of the x-ray
was proper. (See N.T. Trial, 10/27/04, at 65; N.T. Trial, 10/30/14, at 45,
52, 105). In fact, Dr. Esterhai testified that “a considerable number of
physicians having reviewed the x-rays taken postoperatively [would have]
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2
A Taylor Spatial Frame is an external metal frame that is surgically affixed
to the leg with screws that penetrate into the bone and are adjusted to
correct rotation. (See N.T. Trial, 10/29/14, at 23-24).
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decided to leave [Appellant] in the cast and not proceed with recasting at
that point in time[.]” (N.T. Trial, 10/30/14, at 52). He stated further that,
following that image, it would have been “foolish” for Appellee to have
attempted to re-reduce the fracture. (Id. at 46). Dr. Esterhai examined the
CAT scan images from Dr. Reid, and stated that the malrotation was not
more than twenty degrees, but that even if Appellant’s leg was malrotated
between twenty and twenty-five degrees, surgery was not mandated
because of its own risks of making him worse. (See id. at 69-70).
Dr. Hayken agreed that the post-reduction x-rays of Appellant showed
good alignment. (See N.T. Trial, 10/29/14, at 156). He testified, however,
that Appellee’s choice in treatment did not detect the unacceptable
malrotation and he did not “believe that you can adequately evaluate
rotation on a plain x-ray[.]” (Id. at 114). Although Dr. Hayken opined that
a CAT scan would be more accurate, he admitted that it only would be
necessary to examine the leg when planning to operate on it. (See id. at
116, 125). He testified that, if he had treated Appellant, his course of action
would have been to re-reduce the injury by operating on him under
anesthesia because the risk of displacing the fracture would not have been
great. (See id. at 149). He conceded, however, that there are multiple
ways of treating tibial fractures to bring the healed bone as close to its pre-
break condition as possible. (See id. at 162). Specifically, he
acknowledged that, although Dr. Reid decided that Appellant required
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surgery to further reduce the fracture, Appellee’s choice of treatment was
recognized and acceptable. (See id. at 148; see also Dr. Reid’s Trial
Deposition, 4/04/14, at 29).
During the charging conference, Appellants’ counsel objected to the
“two schools of thought” instruction, but then agreed that it was applicable
to the care rendered by Appellee after the initial closed reduction. (See N.T.
Trial, 10/31/14, at 5, 10, 12, 14-15). The trial court instructed the jury on
two schools of thought, limiting it to the post-reduction treatment. (See id.
at 32).
On October 31, 2014, the jury returned a verdict in which it found
Appellee was not negligent. The court denied Appellants’ motion for post-
trial relief on December 5, 2014, and entered judgment on December 17,
2014. Appellants timely appealed.3
Appellants raise two questions for our review:
A. Did the trial court commit an error of law and/or abuse its
discretion when it denied [Appellants’] [m]otion in [l]imine to
[p]reclude any testimony as to [t]wo [s]chools of [t]hought with
respect to the allegations of negligence in [their] [c]omplaint?
B. Did the trial court abuse its discretion when it denied
[Appellants’] [p]ost-[t]rial [m]otion as to the weight of the
evidence as being manifestly unreasonable, arbitrary, or
capricious since both [Appellants’] and [Appellee’s] experts
agreed that permitting a malrotation in excess of [ten] degrees
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3
Appellants filed a timely statement of errors complained of on appeal
pursuant to the court’s order on January 27, 2015. See Pa.R.A.P. 1925(b).
The court filed an opinion on March 23, 2015. See Pa.R.A.P. 1925(a).
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following a closed reduction was below the standard of care and
it was undisputed that following the closed reduction, [Appellant]
was left with a malrotation of at least [twenty] degrees?
(Appellants’ Brief, at 5).
In their first issue, Appellants argue that the trial court erred in
denying their motion in limine to preclude evidence referring to two schools
of thought. (See id. at 5, 16-18). They maintain that evidence of two
schools of thought was irrelevant4 to their case because they “d[o] not
dispute that [Appellee’s] choice of a close[d] reduction was appropriate in
this case.” (Id. at 16-17). Appellants’ claim lacks merit.
It is well-settled that:
Generally, a trial court’s decision to grant or deny a motion
in limine is
subject to an evidentiary abuse of discretion
standard of review. The term discretion imports the
exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion, within the
framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion
is abused when the course pursued represents not
merely an error of judgment, but where the
judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the
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4
We observe that “[e]vidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more or less probable
or supports a reasonable inference or presumption regarding a material
fact.” Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012), appeal
denied, 57 A.3d 71 (Pa. 2012) (citation omitted).
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action is a result of partiality, prejudice, bias or ill
will.
Catlin v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012), appeal denied, 74
A.3d 124 (Pa. 2013) (citation omitted).
Where competent medical authority is divided, a physician
will not be held responsible if in the exercise of his judgment he
followed a course of treatment advocated by a considerable
number of recognized and respected professionals in his given
area of expertise.
In recognizing this doctrine, we do not attempt
to place a numerical certainty on what constitutes a
“considerable number.” The burden of proving that
there are two schools of thought falls to the
defendant. The burden, however, should not prove
burdensome. The proper use of expert witnesses
should supply the answers. Once the expert states
the factual reasons to support his claim that there is
a considerable number of professionals who agree
with the treatment employed by the defendant, there
is sufficient evidence to warrant an instruction to the
jury on the two “schools of thought.” It then
becomes a question for the jury to determine
whether they believe that there are two legitimate
schools of thought such that the defendant should be
insulated from liability.
Gala v. Hamilton, 715 A.2d 1108, 1110-11 (Pa. 1998) (citation omitted).
Here, in his expert report, Dr. Esterhai stated that there “is more than
one school of thought” among physicians about whether, after the initial
closed reduction, to treat a patient conservatively, as Appellee did herein, or
pursue immediate surgical revision. (Expert Report, Dr. Esterhai, 8/09/14,
at unnumbered page 5). Appellants’ complaint alleged that, after the initial
closed reduction, Appellee failed to: (1) detect an unacceptable degree of
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malrotation; (2) both clinically and radiographically assess the rotation at
the fracture site; (3) correct the allegedly unacceptable degree of
malrotation within a reasonable time frame; and (4) correct the malrotation
by May 31, 2012 while the malrotation was still correctable with minimal
intervention. (See Complaint, 6/14/13, at 4 ¶ 23).
In other words, the complaint alleged Appellee’s post-reduction
treatment was negligent, and Dr. Esterhai’s report asserted that there was
more than one school of thought on the best treatment option after the
initial procedure, one of which being the avenue pursued by Appellee.
Therefore, we conclude that the trial court properly exercised its discretion in
denying Appellants’ motion in limine to preclude two schools of thought
testimony as irrelevant. See Catlin, supra at 922; Smith, supra at 137.
Appellants’ first claim lacks merit.5
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5
We acknowledge that, in the summary of argument section of their brief,
Appellants state that the trial court committed error in its two schools of
thought jury instruction. (See Appellants’ Brief, at 15). However, this is an
entirely different issue from the challenge discussed above, which addressed
whether the court properly denied Appellants’ pre-trial motion in limine to
preclude two schools of thought testimony. (See id. at 16-18).
Additionally, to the extent that Appellants are trying to contest the jury
charge, we conclude that the issue is waived on several bases.
Initially, we observe that, during the charging conference, Appellants’
counsel expressly stated, “I would not object to [the] two schools of thought
[instruction] as to after the initial reduction, the failure to reoperate [sic] or
re-reduce or follow through[.]” (N.T. Trial, 10/31/14, at 15). Consistent
with counsel’s requested language, when the court provided the jury with
the two schools of thought instruction, it advised that the doctrine only was
(Footnote Continued Next Page)
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In their second issue, Appellants maintain that the trial court erred in
denying their post-trial motion for a new trial on the basis that the verdict
was against the weight of the evidence where all experts agreed that a
malrotation over ten degrees was unacceptable. (See Appellants’ Brief, at
19-20). Appellants’ claim is waived and would not merit relief.
The Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by
discussion and analysis of pertinent authority. Appellate
arguments which fail to adhere to these rules may be considered
waived, and arguments which are not appropriately developed
are waived. Arguments not appropriately developed include
those where the party has failed to cite any authority in support
of a contention. This Court will not act as counsel and will not
develop arguments on behalf of an appellant. . . .
Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014), appeal
denied, 110 A.3d 998 (Pa. 2014) (citations and quotation marks omitted);
see also Pa.R.A.P. 2119(a)-(e) (mandating that appellate brief contain
_______________________
(Footnote Continued)
to be applied “to [Appellants’] claim that [Appellee], after the initial
reduction and casting, failed to further reduce the fracture adequately.” (Id.
at 32; see id. at 31). Appellants’ counsel did not object to the court’s
charge. (See id. at 32).
Also, Appellants did not challenge the jury instruction in their post-trial
motion, Rule 1925(b) statement, or statement of questions involved. (See
Post-Trial Motion, 11/03/14, at 1-2; Rule 1925(b) Statement, 1/27/15, at 4-
8; Appellants’ Brief, at 5). Indeed, other than Appellants’ statement in the
summary of the argument section of their brief, the argument section only
contains a passing reference to the charge, and otherwise abandons any
argument regarding this issue. (See Appellants’ Brief, at 15, 17).
Therefore, for all of these reasons, any challenge of the two schools of
thought jury instruction is waived.
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pertinent discussion and citation, references to the record, and statement of
place of raising issue).
Here, Appellants’ brief on this issue falls woefully short of our Rules’
requirements. (See Appellants’ Brief, at 19-20). It does not contain any
citation to legal authority, references to the record, identification of where
evidence in the record may be found, or a statement of the place of raising
or preserving the weight of the evidence claim. (See id.). Instead, it
contains a summary recitation of the testimony, viewed in the light most
favorable to Appellants, and concludes with the statements:
We know that the rotation was at [twenty-five] degrees as
was indicated by the CT scan or at most [twenty] degrees by Dr.
Esterhai [and] was still double what all the doctors, Reid,
[Appellee,] and [Appellants’] expert testified was the maximum
accepted standard.
Therefore, the jury’s finding of no negligence is contrary to
the facts and law and a new trial should be ordered.
(Id. at 20).
This “discussion” falls well-below that required for an appellate brief,
and we decline to “act as counsel and . . . develop arguments on behalf of
[A]ppellant[s].” Coulter, supra at 1088. Appellants’ second issue is
waived. See id.; see also Pa.R.A.P. 2101, 2119(a)-(e).
Moreover, we observe that Appellants’ claim would not merit relief.
Our standard of review of a weight of the evidence challenge is well-settled:
Appellate review of a weight claim is a review
of the [trial court’s] exercise of discretion, not of the
underlying question of whether the verdict is against
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the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
The factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. The
trial court may award a judgment notwithstanding the verdict or
a new trial only when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice. In determining
whether this standard has been met, appellate review is limited
to whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion. When a fact
finder’s verdict is so opposed to the demonstrative facts that
looking at the verdict, the mind stands baffled, the intellect
searches in vain for cause and effect, and reason rebels against
the bizarre and erratic conclusion, it can be said that the verdict
is shocking.
Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (citations and quotation
marks omitted).
In this case, despite Appellants’ representation to the contrary, there
were conflicting viewpoints presented to the jury about a leg’s acceptable
and normal range of rotation. (See, e.g. N.T. Trial, 10/27/14, at 56; N.T.
Trial, 10/29/14, at 117, 166; N.T. Trial, 10/30/14, at 51). Therefore,
because the jury was free to believe all, part, or none of the evidence
presented, we conclude that the trial court properly exercised its discretion
when it found that the verdict was not shocking to one’s sense of justice.
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See Haan, supra at 70. Appellants’ second issue, even if not waived,
would not merit relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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