Polett, M., Aplt. v. Public Communications Inc.

[J-91-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

MARGO POLETT AND DANIEL POLETT, : No. 18 EAP 2014
:
Appellants : Appeal from the Judgment of the Superior
: Court entered on December 20, 2013 at
: No. 1865 EDA 2011 vacating and
v. : remanding the Judgment entered on June
: 10, 2011 in the Court of Common Pleas of
: Philadelphia County, Civil Division, at No.
PUBLIC COMMUNICATIONS, INC., : 02637, August Term 2008
ZIMMER, INC., ZIMMER USA, INC., AND :
ZIMMER HOLDINGS, INC., : ARGUED: October 8, 2014
:
Appellees :

OPINION

MADAME JUSTICE TODD DECIDED: October 27, 2015
Appellants Margo and Daniel Polett appeal from an order of the Superior Court

vacating a judgment for injuries sustained by Margo Polett after she underwent knee

replacement surgery during which she received an artificial knee manufactured by

Appellee Zimmer, Inc., and, thereafter, appeared in a promotional video produced and

filmed by co-Appellee Public Communications, Inc. (“PCI”). Upon review, we reverse

the order of the Superior Court and remand to that tribunal to consider the question of

whether the trial court erred in refusing to remit the jury’s compensatory damage award.

I. Facts and Procedural History

In May 2006, Mrs. Margo Polett, who was then 67 years of age and actively

involved in a variety of charitable and civic activities in the Philadelphia community,

engaged the professional services of Dr. Robert Booth — a board-certified orthopedic
surgeon — for the purpose of having him perform knee replacement surgery on her

right knee because of damage to it caused by rheumatoid arthritis, a degenerative

inflammatory disease she suffered from for many years, and which had previously

damaged her left knee to the degree that it had to be replaced, with a conventional

artificial knee, in 2003. N.T Trial, 11/15/10 (A.M.), at 113-15, 11/15/10 (P.M.), at 59. In

addition to his surgical practice, Dr. Booth had been working with Zimmer since the mid-

1990’s in the capacity of a professional consultant, which involved Dr. Booth developing

implantable prosthetic medical devices for sale by Zimmer. N.T. Trial, 11/15/10 (A.M.),

at 110-11. One of these devices Dr. Booth had developed while working with Zimmer

was the “Gender Solutions Knee” which he had designed specifically for women, due to

his professional experience that, although females comprised the majority of knee

replacement patients, the availability of prosthetic devices specifically tailored to female

knee structure was limited. Id. at 80. Dr. Booth recommended to Mrs. Polett that she

undergo surgery to replace her right knee using the Gender Solutions Knee and to also

simultaneously replace her previously implanted prosthetic left knee which had

deteriorated. Id. at 114. Desirous of alleviating her pain and difficulty in walking, Mrs.

Polett agreed to this course of action, and, on June 27, 2006, Dr. Booth performed the

double knee replacement surgery. Id. at 118. There were no complications from the

surgery, and, thereafter, Mrs. Polett engaged in a prescribed program of physical

therapy beginning in July 2006. N.T. Trial, 11/15/10 (P.M.), at 69-70.

By August 2006, Mrs. Polett’s recovery had advanced to the point that, during an

examination on August 16, 2006, Dr. Booth observed that Mrs. Polett was making

“better than the average” progress, and he noted then that both of Mrs. Polett’s

prosthetic knees were affixed and aligned properly, she could extend both legs up to

125 degrees, and her pain level was diminishing. N.T. Trial, 11/15/10 (A.M.), at 123. At

[J-91-2014] - 2
that time, Mrs. Polett expressed her happiness to Dr. Booth with the overall results of

the procedure. Id.

Previously, in August 2006, the Global Director of Marketing Communications for

Zimmer, Lola Yoder, contacted Dr. Booth’s office and asked him to identify three of his

female patients who had successfully undergone replacement surgery using the Gender

Solutions Knee, for the purpose of having them appear in an educational promotional

video which would be produced by PCI. As described by Yoder in an email to a

member of Dr. Booth’s staff, the completed video was to feature the women providing

testimonials of how the surgery had positively improved their lives, as well as showing

the women participating in physical activities they had “resumed since surgery.” N.T.

Trial, 11/17/10 (A.M.), at 59; Email, 8/7/06 (Defendant’s Trial Exhibit 80). After his

observation of Mrs. Polett’s favorable post-surgical improvement during his examination

on August 16, Dr. Booth provided Zimmer with Mrs. Polett’s name as a prospective

candidate to appear in the video. N.T. Trial, 11/15/10 (A.M.), at 125; 11/15/10 (P.M.), at

78.

A representative of PCI, Cheryl terHorst, contacted Mrs. Polett shortly after her

August 16th visit with Dr. Booth, interviewed her by phone, and arranged for the video

to be recorded on August 23, 2006. N.T. Trial, 11/16/10 (A.M.), at 48, 51, 53. On the

morning of August 23rd, terHorst and Yoder went to Pennsylvania Hospital (“Penn”)

where Dr. Booth’s offices were located, accompanied by Marcel Franck, a videographer

from New City Productions (“New City”), as well as by members of the crew of a film

production company Video Tracks Productions (“Video Tracks”), and the taping of the

video commenced. N.T. Trial, 11/16/10 (P.M.), at 53.

Mrs. Polett was first filmed in Dr. Booth’s office being examined by him. Dr.

Booth remarked during this videotaped examination that Mrs. Polett was bearing weight

[J-91-2014] - 3
evenly on both knees, walking without assistance, and that, overall, she was doing

“exceptionally well.” N.T. Trial, 11/15/10 (A.M.), 127-29. After this portion of the video

shoot was completed, terHorst and Yoder met with Mrs. Polett in Dr. Booth’s conference

room to interview her. N.T. Trial, 11/16/10 (P.M.), at 58. According to Mrs. Polett, it

was during this discussion she first learned that she would be filmed while walking on a

treadmill and riding a stationary exercise bicycle. N.T. Trial, 11/17/10 (P.M.) at 11. Mrs.

Polett was somewhat concerned about riding the bicycle as, by her recollection, she

had not ridden a bicycle for over ten years previously. Id. She informed terHorst and

Yoder during their conversation that she had not ridden a bike at any time since her

surgery. N.T. Trial, 11/17/10 (A.M.), at 9, 40-41, 86-87. Nevertheless, later in the day,

Mrs. Polett was taken by terHorst and Yoder to an exercise room in the hospital where

she was shown the treadmill and stationary bicycle and asked if she would be

comfortable using them. N.T. Trial, 11/16/10 (A.M.), at 65-66; 11/17/10 (A.M.), at 44-50.

Based on her assumption that terHorst and Yoder had consulted with Dr. Booth, and,

thus, that it was okay for her to perform both physical activities, Mrs. Polett allowed

herself to be filmed while walking on the treadmill and then riding the exercise bike.1

N.T. Trial, 11/17/10 (P.M.), at 11-12. Although Dr. Booth remained at his offices during

the entire time period of the shooting of the video, and was available for consultation,

neither terHorst nor Yoder ever spoke with him about whether Mrs. Polett was medically

cleared to walk on the treadmill or to ride the exercise bicycle. N.T. Trial, 11/15/10

(A.M.), at 126-27; N.T. Trial, 11/16/10 (A.M.), at 59-63.

1
The record does not reflect the exact amount of time Mrs. Polett spent on the bicycle.
Although there are three minutes of recorded video footage of her riding the bicycle,
terHorst testified that there were multiple breaks in the filming process and, thus, Mrs.
Polett spent an indeterminate amount of time on the bicycle during the video shoot
which was not recorded. N.T. Trial, 11/16/10 (A.M.), at 97-116.

[J-91-2014] - 4
 Mrs. Polett recalled that, after the filming was completed, she felt discomfort and

pain while she was driving home in her car. N.T. Trial, 11/17/10 (P.M.), at 13. She felt

so poorly that she went immediately to bed and began to feel that “something horrible

had happened” during the filming. Id. When her husband arrived home later that

evening, she complained to him that “[m]y knees really hurt,” and he gave her a bag of

frozen peas to apply to her knees to ease the discomfort. N.T. Trial, 11/17/10 (A.M.), at

94-5. The next morning, August 24, 2006, Mrs. Polett awoke, still in pain. Id. at 95.

Later that same day, she informed another of her treating physicians, Dr. Herbert Lustig,

that she was very sore after having done the promotional video the preceding day. Trial

Court Opinion, 6/10/11, at 5.

Thereafter, for three months following the filming of the video, Mrs. Polett

suffered such physical discomfort and pain in her knees that she repeatedly complained

of it during visits to her rheumatologist and physical therapists. Id. at 5-7. The pain was

so bad in both of her knees that, during an appointment with her rheumatologist in

October 2006, she rated it as being 10 on a scale of 1-10, and she attributed the cause

of the pain to the exercise she did while filming the video. Id. at 53. She also related to

her physical therapists that she was having difficulty moving from a sitting to a standing

position, and experiencing weakness in her lower extremities.

Mrs. Polett also continued to see Dr. Booth during this three-month period, and

she relayed similar complaints to him which indicated a progressive deterioration in the

condition of her knees. During Mrs. Polett’s visit with Dr. Booth on September 20, 2006

— her first visit to him after the filming of the video — he noted that she had “mild

discomfort in her knees after riding on a bicycle,” a “[s]light loss of motion from her prior

visit,” and “[m]ild synovitis” of the knee, which is a condition in which the synovial

membrane surrounding the knee joint is inflamed. Id. at 6; PDR Medical Dictionary (2d.

[J-91-2014] - 5
Ed.) at 1773 (2000). By the time of Mrs. Polett’s next office consultation with Dr. Booth

on October 23, 2006, he observed that she was experiencing “persistent discomfort in

both knees” which dated from the time of the exercise video, and that her range of

motion had diminished since the time of the preceding visit. Trial Court Opinion,

6/10/11, at 24; Dr. Booth Treatment Note, 10/23/06 (Plaintiff’s Trial Exhibit 4). As

further recounted in this treatment note, Dr. Booth changed Mrs. Polett’s anti-

inflammatory medication and had her concentrate on doing hamstring stretches, and

reminded her to avoid using weights and doing resistive exercises. Trial Court Opinion,

6/10/11, at 25; Dr. Booth Treatment Note, 10/23/06. Dr. Booth also noted that Mrs.

Polett had returned from a trip to Vietnam,2 which was stressful, and that he remained

hopeful that Mrs. Polett’s symptoms would diminish. Id.

Subsequent to her October 23rd visit to Dr. Booth’s office, Mrs. Polett’s condition

worsened, and the tendons around the patella (kneecap) of her right leg pulled apart

causing her to, on occasion, lose her balance and fall. Trial Court Opinion, 6/10/11, at

53. During one of these falls, she fractured her right kneecap, and, as a result, when

Mrs. Polett saw Dr. Booth on November 22, 2006, she was experiencing acute pain and

swelling in that knee. Id.; Dr. Booth Treatment Note, 11/22/06 (Plaintiff’s Trial Exhibit 6).

Less than a week later, on November 27, 2006, Dr. Booth performed surgery to repair

Mrs. Polett’s fractured right kneecap and its supporting tendons.

Following that surgery, Mrs. Polett experienced further difficulties with her right

knee which necessitated her having to undergo three additional surgeries: the first, in

January 2007, was a repair of the extensor tendon around the right knee; the second, in

September 2007, was an “allograft” procedure to transplant tendon tissue because the

2
Mrs. Polett recalled that this trip was taken at some point prior to this appointment and
that she was in a wheelchair for its duration. N.T. Trial, 11/17/10 (P.M.), at 43.

[J-91-2014] - 6
previously repaired right extensor tendon had ruptured, and to allow Dr. Booth to make

further revisions to the transplanted knee joint itself; and the third, in February 2008,

was another allograft procedure necessitated because of the death of the first

transplanted right extensor tendon. Trial Court Opinion, 6/10/11, at 54.

The cumulative effect of these surgeries left Mrs. Polett “functionally limited” and

permanently unable to fully extend her right leg. Id. As a result of her diminished

mobility, Mrs. Polett is presently no longer able to participate in activities which she

formerly enjoyed, such as organizing and hosting charitable events, swimming, or

driving. The loss of extension in her right leg has also forced her to use a motility aid in

order to walk, i.e., a “walker,” and, even with the use of such an aid, she still

experiences falls and remains “in constant fear of falling.” Id. at 54-55. Further, before

her post-video physical difficulties, Mrs. Polett was able to provide aid and physical

comfort to her adopted daughter, who suffered from a post-traumatic stress disorder,

whenever her daughter suffered attacks of catatonia. Id. at 56. At the time of trial, she

was no longer capable of rendering such support, and, instead, her daughter was

required to regularly assist Mrs. Polett with routine life activities such as getting into bed.

Id. Mrs. Polett remained in constant pain. Id.

During 2008, Mrs. Polett continued to be treated by Dr. Booth. On June 4, 2008,

Dr. Booth was asked by the Poletts to sign a “tolling agreement.”3 Dr. Booth

memorialized this request in a treatment note that same day, recounting that “[Mr.

Polett] says that they are not interested in suing and would never consider it.” Dr. Booth

Treatment Note, 6/4/08 (Exhibit 6 attached to Defendant’s Motion In Limine, 10/28/10).

He further stated in the note: “I have explained [to the Poletts] that in my opinion it is the

3
A tolling agreement is an agreement by which the potential defendant agrees to stop
the running of time on the potential plaintiff's claim, thereby extending the period of the
statute of limitations. Black’s Law Dictionary 1495 (9th ed. 1999).

[J-91-2014] - 7
filming company who asked to ‘interview’ Mrs. Polett with whom the responsibility lies,

as well as those who employed them. I do not feel that the hospital or myself has any

obligation.” Id.

On August 1, 2008, after consulting with his attorney, Dr. Booth signed the tolling

agreement. On August 20, 2008, the Poletts filed suit against Appellees, as well as

Penn, the University of Pennsylvania Hospital System, New City, Franck, and Video

Tracks, and, also, the owner of Video Tracks, Steven Rhykerd, asserting claims for

negligence and loss of consortium. On November 12, 2008, New City and Franck, in

turn, filed a complaint against Dr. Booth, asserting a cross-claim against him for

contribution and indemnity. The Poletts did not sue Dr. Booth.

Throughout 2009, discovery in the case was conducted, and Dr. Booth’s

deposition was taken on June 26, 2009.4 In this deposition, Dr. Booth recounted that

the inflammation and synovitis he observed in Mrs. Polett’s knee during her September

20 and October 23, 2006 office visits were from her riding the exercise bike during the

filming of the video, and that this swelling and loss of extension led to Mrs. Polett

experiencing her subsequent “cascade” of medical problems. Dr. Booth Deposition,

6/26/09, at 52-53; 60-62.

Thereafter, in 2010, Penn, the University of Pennsylvania Hospital, Video Tracks,

and Rhykerd were all dismissed with prejudice as defendants by stipulation, which

provided that none of the defendants were negligent in causing Mrs. Polett’s injuries.

Stipulations to Dismiss, 4/30/10 & 5/12/10. New City and Franck’s cross-claim against

Dr. Booth was likewise dismissed with prejudice by a stipulation which was executed by

counsel for the Poletts and Appellees.5 In that stipulation, which excepted any claims

4
Counsel for Appellees attended this deposition and cross-examined Dr. Booth therein.
5
Appellees mounted a joint defense in the trial court and have filed a joint brief with our
Court.

[J-91-2014] - 8
subject to the tolling agreement between Dr. Booth and the Poletts, all counsel of record

agreed that Dr. Booth was not negligent in his care of Mrs. Polett and that “nothing [he]

did or failed to do caused any of [Mrs. Polett’s] injuries.” Stipulation, 6/1/10.

The Poletts’ remaining claims against Appellees — asserting that they, through

their employees, were negligent in having her ride the exercise bike during the filming of

the video without first determining whether she was medically cleared to do so —

proceeded to a jury trial. Prior to the commencement of that trial, in October 2010, the

tolling agreement between the Poletts and Dr. Booth was cancelled by mutual

agreement. The Poletts then filed a motion in limine to bar Appellees “from introducing

or making any reference concerning” the tolling agreement on the basis that, under

Pa.R.E. 401, it was irrelevant to the issues in the case, because Dr. Booth was not a

party, and, also, because Appellees had stipulated that Dr. Booth did not cause Mrs.

Polett’s injuries. Motion in Limine, 10/23/10, at 2-3. The Poletts further contended that,

even if the tolling agreement was relevant, under Pa.R.E. 403, it should, nevertheless,

be excluded due to its potential to mislead or confuse the jury. Id. at 3-4. Additionally,

the Poletts argued that, if the agreement were admitted, supplemental testimony would

potentially be needed from their trial counsel in order to explain to the jury the process

of the tolling agreement’s formation, its terms, and its functioning, which, according to

the Poletts, may have required trial counsel to testify regarding information protected by

the attorney-client privilege. N.T. Trial, 11/15/10 (A.M.), at 30.

Appellees opposed the motion on the basis that the tolling agreement was, in

their view, relevant to show potential bias on the part of Dr. Booth at the time he gave

his deposition on June 26, 2009, in which he opined that the bicycle ride was the cause

of her synovitis and inflammation which led to her subsequent kneecap fracture and

falls, inasmuch as the agreement was in effect at that time. Appellees asserted that the

[J-91-2014] - 9
probative value of the agreement as impeachment evidence outweighed the

agreement’s potential to mislead or confuse the jury. N.T. Trial, 11/15/10 (A.M.), at 19-

20.

After entertaining argument from the parties prior to trial, the trial court — the

Honorable Frederica Massiah-Jackson — entered an order granting the Poletts’ motion

without elaboration. See Order, 11/15/10. The trial court, in orally announcing its

pretrial ruling after the parties’ argument, and in its opinion prepared pursuant to

Pa.R.A.P. 1925(b), did not specifically address whether it was excluding the tolling

agreement under either Pa.R.E. 401 or 403; however, in its opinion, the court observed

that Dr. Booth wrote office notes two years before the existence of the tolling agreement

describing the pain Mrs. Polett suffered after the riding of the exercise bicycle in the

video, and, thus, in the trial court’s view, the existence of the agreement could not have

influenced his opinions. Further, the trial court noted that Appellees expressly stipulated

that Dr. Booth was not negligent, that Appellees’ expert — Dr. Charles R. Clark, an

orthopedic surgeon and professor of biomedical engineering at the University of Iowa —

opined that the bicycle ride had been one of the causes of her synovitis, and that Dr.

Booth did not place responsibility on Appellees for causing Mrs. Polett’s injuries. N.T.,

11/15/10 (A.M.), at 33; Trial Court Opinion, 6/10/11, at 31-32.

Appellees also filed a motion in limine to preclude Dr. Booth from testifying as an

expert at trial under Pa.R.Civ.P. 4003.5, due to the fact that he did not prepare an

expert witness report in accordance with the requirements of that rule. The trial court

denied the motion on the grounds that Dr. Booth was not a witness who was retained in

anticipation of litigation; rather, in the court’s view, Dr. Booth formed his opinions as to

causation, about which he would be testifying at trial, during the course of his treatment

relationship with Mrs. Polett, as evidenced by his treatment notes of September 20,

[J-91-2014] - 10
2006 and October 23, 2006. The trial court observed that Dr. Booth, in those treatment

notes, remarked on her knee infection and inflammation which dated from the time of

the bike ride. Trial Court Opinion, 6/10/11, at 22, 24. Further, the trial court noted that

Dr. Booth had been deposed by Appellees nearly a year and a half before trial, his

treatment notes had been made available for review by Dr. Clark, and Dr. Booth was

not going to be offering an opinion at trial on the issue of negligence. Id. at 22.

A jury trial commenced on November 15, 2010. Regarding the issue of

causation, which is central to the questions presented by this appeal, the jury heard

testimony from Dr. Booth in which he opined that Mrs. Polett’s riding of the exercise bike

for the video shot on August 23, 2006 was a substantial factor in beginning a chain of

linked events that ultimately caused her harm. Dr. Booth opined that the bicycle ride

was the “only factor” he was aware of that caused the synovitis in her transplanted

knee. N.T. Trial, 11/15/10 (P.M.), at 19. He explained that this inflammation, in turn, led

to Mrs. Polett having a reduced ability to extend her leg, and it was a substantial factor

in causing the separation of the tendons surrounding her kneecap. This diminished

range of leg motion and weakness of the supporting tendons resulted in the fracture of

her kneecap and led to her falls. Id. at 19-21. Ultimately, according to Dr. Booth, this

directly linked sequence of events, stemming from the initial synovitis, was a substantial

factor in causing Mrs. Polett to be forced to undergo the four subsequent surgeries

which she endured. Id. at 23-24. Dr. Booth rejected the notion that any other activities

Mrs. Polett engaged in after the replacement surgery, like walking on the beach or her

travel to various foreign and domestic destinations such as Vietnam and New York City,

could have caused her post-operative medical problems. Id. at 30-31. Dr. Booth

expressed the opinion that the bicycle ride was, for Mrs. Polett, a “watershed” moment

in her treatment, and that, absent that event, it was likely that she would have been

[J-91-2014] - 11
among the 98 percent of his patients whose knee replacement operations were

successful, i.e., having only minor pain, good range of motion, and no need for the

prosthetic implants to be replaced. Id. at 33, 35.

Appellees presented their own evidence on the issue of causation, through Dr.

Clark’s videotaped deposition, in which he agreed that Mrs. Polett’s bicycle ride for the

exercise video was a factor in causing her to suffer the synovitis. Trial Court Opinion,

6/10/11, at 29. However, Dr. Clark also expressed the view that several other causative

factors also contributed to Mrs. Polett developing synovitis: the natural inflammatory

response of the body to major surgery; her pre-existing rheumatoid arthritis; her inability

to take certain anti-inflammatory drugs due to liver toxicity; her travel to foreign and

domestic destinations; her walking in sand along a beach; and her performance of leg

presses with weights during physical therapy sessions before and after the date of the

filming. Id. at 19, 45; Dr. Clark Deposition, 11/12/10, at 14-15, 20.

On the morning of November 18, 2010, as the jury was watching Dr. Clark’s

video deposition, the trial court conferred with counsel for both parties in chambers

regarding proposed jury instructions. During this conference, the Poletts’ counsel stated

he wished to prohibit opposing counsel from arguing to the jury that activities or

incidents other than Mrs. Polett’s riding of the exercise bike caused her injury, if there

was no medical testimony to support such an assertion. N.T. Trial, 11/18/10 (A.M.), at

45-46. Pennsylvania counsel for Appellees, William Conroy, Esquire, agreed that some

charge regarding speculation should be given, and he indicated that he was amenable

to a general instruction to the jury that they were not permitted to speculate as to any

fact. Id. at 45. The trial court stated that she would defer ruling on whether any

instruction was needed on this issue until after both sides delivered their closing

arguments. Id. at 50-51. Later that morning, the trial court gave the jury its instructions.

[J-91-2014] - 12
 During the afternoon of November 18, 2010, the parties presented their closing

arguments. Counsel for Appellees, Kurt Stitcher, Esquire, who was from Chicago and

who does not seem, from the record, to have been present at that morning’s charging

conference, presented argument to the jury regarding the issue of causation of Mrs.

Polett’s injuries. Relevant to the current appeal, counsel argued the following points:

between Mrs. Polett’s filming of the video in August 2006, and her surgery in November

2006, she kept only 8 out of her 42 prescribed physical therapy visits; allegedly threw

out documents from Dr. Booth describing activities she was permitted to engage in; and

did not check with Dr. Booth, prior to engaging in planned activities, as to whether such

activities were allowed. N.T. Trial, 11/18/10 (P.M.), at 84-85, 99-100.

Attorney Stitcher further argued that the cause of Mrs. Polett’s problems after Dr.

Booth’s November 2006 surgery was her failure to wear a knee brace properly in order

to lock her leg into full extension, sleeping without the brace, not wearing the brace

while attending church services during which she felt a painful “pop” in her knee, not

calling Dr. Booth immediately after she felt the knee pop, and taking a trip to New York

City during which she did not use a cane or walker. Id. at 85-87.

Mrs. Polett’s counsel raised an immediate objection to each of these arguments,

which the trial court sustained. After Attorney Stitcher had finished his argument, the

trial court noted her assumption that Attorney Conroy had warned Attorney Stitcher that

she would consider giving the charge requested by Mrs. Polett’s counsel if closing

arguments revealed a need for it, and that Attorney Stitcher had apparently ignored that

warning. Id. at 104-05. The trial court then gave the following supplemental instruction

to the jury, which was substantially the same instruction counsel for the Poletts had

previously requested during the charging conference:

[J-91-2014] - 13
 Ladies and gentlemen, we’re getting ready to hear the
response or rebuttal closing argument by [the Poletts’
counsel] Mr. Specter.
And I wanted to alert you and just add to my earlier
instruction that in order for you to find that something other
than the exercise bike caused Mrs. Polett’s injuries, you
must be provided with medical testimony that something else
other than the bike caused those injuries. You may not
speculate on what else could have caused Mrs. Polett to be
injured.
Id. at 105.

Once counsel for the Poletts had given his rebuttal argument, the jury retired to

deliberate. When the jury left the room, Attorney Conroy objected to the supplemental

jury instruction on the grounds that, in his view, it had the effect of shifting the burden of

proof from the plaintiff to the defendant. Id. at 123. The trial court noted the objection.

Id.

After deliberation, the jury returned a verdict for Mrs. Polett in the amount of

$26.6 million. The jury found Zimmer and PCI 34% and 36% negligent, respectively, for

causing Mrs. Polett’s injuries. Because the jury also determined Mrs. Polett was 30%

comparatively negligent, the trial court reduced her share of the jury verdict by that

proportion. Ultimately, after computing delay damages, the trial court entered judgment

in favor of Mrs. Polett in the amount of $19,602,141.23 on her negligence claims, and in

favor of Mr. Polett on his loss of consortium claim in the amount of $700,000.

Once their post-trial motions were denied, Appellees took a direct appeal to the

Superior Court raising six issues — three of which a majority of an en banc panel of the

Superior Court found meritorious in a published opinion. Polett v. Public

Communications, 83 A.3d 205 (Pa. Super. 2013).6 Specifically, the Superior Court

6
The en banc majority opinion was written by Judge Shogan and joined by President
Judge Bender, and Judges Bowes, Gantman, and Olson. Judges Donohue and
(continuedQ)

[J-91-2014] - 14
majority concluded the trial court erred: in granting the Poletts’ motion in limine to bar

Appellees from using the tolling agreement between Dr. Booth and the Poletts to

impeach his trial testimony; in permitting Dr. Booth to testify as an expert witness when

he was not identified as an expert witness prior to trial — as required by Pa.R.Civ.P.

4003.5 — and by giving its supplemental jury charge admonishing the jury against

speculation as to the cause of Mrs. Polett’s injuries.7 Based on these rulings of trial

court error, the Superior Court vacated the judgment and granted Appellees a new trial.

With respect to the trial court’s preclusion of Appellees’ use of the tolling

agreement as impeachment evidence against Dr. Booth, the Superior Court majority

observed that, as a general matter, pursuant to Pa.R.E. 607(b), the credibility of a

witness may be impeached by any relevant evidence. As to whether the tolling

agreement constituted such relevant impeachment evidence, the majority

acknowledged that the courts of our Commonwealth have not specifically opined on the

question of whether such an agreement may be used for impeachment purposes. The

court noted, however, that, analogously, certain types of indemnification agreements

between a plaintiff and one of multiple co-defendants, as well as compensation

agreements between a party and its expert witness, have both been deemed admissible

by Pennsylvania courts as relevant impeachment evidence to show the bias of testifying

witnesses. Polett, 83 A.3d at 224-25 (citing Hatfield v. Continental Imports, 610 A.2d

(Qcontinued)
Lazarus concurred in the result. Judge Wecht, joined by President Judge Emeritus
Kate Ford Elliott, dissented.
7
The majority rejected Appellees’ claims that they were entitled to judgment
notwithstanding the verdict based on insufficient evidence showing the bicycle ride
caused Mrs. Polett’s injuries, or that Appellees breached their duty not to subject her to
an unreasonable risk of harm. However, in light of its disposition vacating the judgment
and remanding for a new trial, the majority did not consider Appellees’ challenge to the
trial court’s denial of their motion for remittitur.

[J-91-2014] - 15
446 (Pa. 1992) (settlement agreement between one of multiple co-defendants and the

plaintiff was relevant to show bias of settling defendant’s witnesses in favor of plaintiff,

due to the fact that, because of the agreement, defendant stood to financially benefit in

the event of a larger plaintiff’s verdict against co-defendant); Coward v. Owens-Corning,

729 A.2d 614 (Pa. Super. 1999) (holding that trial court did not abuse its discretion in

allowing plaintiff to cross-examine defendant’s expert witness on the amount of fees he

received to give testimony on behalf of asbestos defendants and whether his opinions in

the case in which he testified were affected by that compensation)). Further, the

majority found guidance from an unpublished opinion of a federal magistrate judge for

the District Court of New Jersey, AMEC Civil, LLC v. DMJM Harris, Inc., 2008 WL

8171059 *2 (Dist. Ct. N.J. 2008), in which that judge found that, because “settlement or

tolling agreements can be used as impeachment evidence,” tolling provisions of a joint

defense agreement between multiple defendants were discoverable in a civil trial.

The majority reasoned that, “[t]he issue of causation was determinative of Mrs.

Polett’s case. Dr. Booth’s testimony on causation and on what influenced his opinions

was, therefore, relevant.” Polett, 83 A.3d at 225. The majority found that Dr. Booth first

opined that the exercise bike ride was the cause of Mrs. Polett’s injuries during his

deposition, which was taken after he was approached by the Poletts to sign the tolling

agreement. In that deposition, he placed the blame on PCI and its employees who

arranged the ride, and he stated that he wanted to continue to treat Mrs. Polett without

the threat of litigation. Consequently, in the majority’s view, Appellees should have

been permitted to explore whether the tolling agreement resulted in partiality on the part

of Dr. Booth in rendering his causation opinion.

The majority also deemed the probative value of the tolling agreement to

outweigh its potential for prejudice under Pa.R.E. 403. In the majority’s view, if Dr.

[J-91-2014] - 16
Booth was questioned at trial about the tolling agreement, he would have been free to

explain that he was not sued by the Poletts, that all parties stipulated that he was not

responsible for Mrs. Polett’s injuries, that the agreement was not in effect at the time of

trial, and that the agreement did not have any effect on his opinions; hence, the jury

would have been able to “fully assess the quality of Dr. Booth’s testimony.” Id. at 226.

Concerning the trial court’s denial of Appellees’ motion in limine to preclude Dr.

Booth from testifying as an expert witness, the majority determined that, pursuant to

Pa.R.Civ.P. 4003.5, the trial court should not have permitted Dr. Booth to provide expert

testimony, as he was not disclosed as an expert witness by the Poletts, nor did he

prepare an expert report. The court determined that Dr. Booth’s treatment notes written

during September and October of 2006 were not causation opinions which Dr. Booth

had developed during his course of treating Mrs. Polett, as the trial court found.

Instead, the majority considered them to merely establish “a temporal connection

between Mrs. Polett riding the exercise bike and her injuries.” Polett, 83 A.3d at 220.

The court viewed Dr. Booth’s June 4, 2008 treatment note, in which he recounted his

opinion that the bicycle ride had caused Mrs. Polett’s injury, as evidence that he

“contemporaneously associated Mrs. Polett’s injuries with the exercise bike and faced

the possibility of litigation.” Id. Thus, the majority concluded that Dr. Booth’s opinion

that Mrs. Polett’s riding of the bicycle caused her injuries did not arise during the regular

course of Dr. Booth’s treatment relationship with Mrs. Polett, but, rather, was an opinion

which “arose under a sword of litigation.” Id. at 221 (citing Kurian v. Anisman, 851 A.2d

152 (Pa.Super. 2004) (exclusion of expert testimony of plaintiff’s treating physician

under Pa.R.Civ.P. 4003.5 as to whether defendant doctor’s treatment of patient

breached the standard of care and caused plaintiff’s injuries was proper, as these

opinions were developed for the purpose of litigation)).

[J-91-2014] - 17
 The majority further found that the Poletts’ failure to properly designate Dr. Booth

as an expert resulted in prejudice to Appellees because Dr. Booth did not prepare an

expert report, or provide answers to interrogatories as required by Pa.R.Civ.P.

4003.5(a)(1)(b), which, in the majority’s view, would have revealed the basis for his

causation opinion and thereby allowed Appellees to contest it at trial. The majority

accepted Appellees’ argument that Dr. Booth’s June 26, 2009 deposition did not cure

this prejudice, since, when Dr. Booth gave that deposition, Appellees lacked notice that

he would be testifying as an expert, and, thus, they deposed him as a fact witness.

Lastly, the majority concluded that, because the trial court’s supplemental charge

to the jury — cautioning them that there needed to be medical testimony that something

other than the bicycle ride caused Mrs. Polett’s injuries and forbidding them from

speculating as to other causes — was isolated from the rest of the jury charge, it had

the effect of “improperly focus[ing] the jury’s attention on the idea that [Appellees] were

required to do more than prove Mrs. Polett’s comparative negligence.” Polett, 83 A.3d

at 217. In the majority’s view, the supplemental charge had the effect of shifting the

burden of proving negligence to the defendant since it “palpably misled the jury into

believing that [Appellees] were required to present medical evidence that something

other than the exercise bike caused Mrs. Polett’s injury.” Id. at 218. The majority

considered Appellees’ evidence of Mrs. Polett’s medical history and her post-operative

activities not to have been a speculative attempt to link Mrs. Polett’s injuries to another

cause, but, instead, merely an effort by Appellees to “demonstrate[e] her comparative

negligence and undermin[e] her credibility.” Id.

Judge David Wecht authored a comprehensive dissent to the majority’s

disposition of each of these three issues. Regarding the majority’s conclusion that the

trial court abused its discretion by barring the tolling agreement from being introduced

[J-91-2014] - 18
as impeachment evidence, the dissent disputed the majority’s conclusions that the

agreement had probative value, and that the jury would not be confused or misled by its

admission. With respect to the question of relevance, the dissent opined that the

agreement had little probative value as it had been cancelled prior to the start of trial

and the parties had stipulated that Dr. Booth was not negligent. Concerning the

potential for the agreement to confuse or mislead the jury, the dissent considered that

prospect to be significant, and that its admission would likely create a serious disruptive

impact on the trial process:
[T]he tolling agreement had obvious and patent potential to
confuse or mislead the jury. It can hardly be gainsaid that
tolling agreements lie outside the realm of an average lay
juror’s knowledge. Testimony would have to be introduced,
almost certainly by an expert witness, to explain what a
tolling agreement is and what its purpose would be in this
case. There would be manifest danger that such testimony
would invade areas protected by attorney-client privilege, as
litigation strategy necessarily would come into play. Issues
presumably discussed between Appellees and their counsel,
such as whom to sue and when to initiate litigation, as well
as the reasons for later dissolving the tolling agreement,
would have to be excavated, aired, and examined thoroughly
so that the jury might be able fully to evaluate the extent to
which the agreement might have influenced Dr. Booth's
testimony. Perhaps Appellees’ counsel would have to be
disqualified and new counsel retained. At the least, the case
would have been lengthened substantially, and the jury
would have been treated to the proverbial trial within a trial.

Polett, 83 A.3d at 233-34 (Wecht, J., dissenting).
As to the question of whether the trial court abused its discretion by allowing Dr.

Booth to testify as an expert, the dissent found that the resolution of that question

turned on the point in time at which Dr. Booth formed his opinion as to the cause of Mrs.

Polett’s injuries. In the dissent’s view, Dr. Booth did reach an opinion as to causation

before the prospect of litigation had surfaced, as evidenced by his September 20, and

[J-91-2014] - 19
October 23, 2006 treatment notes, as well as his June 26, 2009 deposition testimony.

The dissent pointed out that, in his deposition, Dr. Booth identified the bike ride as the

cause of the swelling and inflammation in Mrs. Polett’s knees as of the time of her

September 20, 2006 office visit, and, indicated that, when he wrote his treatment note

on October 23, 2006, after Mrs. Polett’s office visit that day, he was of the opinion that

the bicycle ride had caused her synovitis, which, in turn, started the chain of events that

led to her ultimate injuries. The dissent noted that Dr. Booth’s trial testimony was

consistent with this deposition testimony, and that, at trial, Dr. Booth again averred that

he formed his opinion that the bicycle ride caused Mrs. Polett’s synovitis at the time he

wrote his October 23, 2006 treatment note, and denied that his opinion was formed in

anticipation of litigation. The dissent additionally highlighted the fact that Dr. Booth

testified at trial that, while he was treating Mrs. Polett in the fall of 2006, he was

concerned about the cause of her injury, as, for him, it was determinative of whether the

inflammation and pain she was experiencing was caused by an infection, or,

alternatively, if it was mechanical in origin.

Also, the dissent observed that the purpose of Pa.R.Civ.P. 4003.5 was to prevent

surprise to a party at trial, and the dissent discerned no prejudicial surprise to Appellees

from the trial court’s decision to allow Dr. Booth to testify as an expert. The dissent

pointed out that Appellees participated in Dr. Booth’s deposition, and that his testimony

at trial and in his deposition was consistent.

Lastly, regarding the trial court’s supplemental jury instruction, the dissent

emphasized that the trial court instructed the jury in its main charge that the Poletts had

the burden of proof to establish, by a preponderance of the evidence, that Appellees

were negligent, and that their negligence was the cause of Mrs. Polett’s injury.

Consistent with the well-established principle that a jury charge must be considered in

[J-91-2014] - 20
its entirety, and portions thereof not examined in isolation, the dissent viewed the trial

court’s short supplemental instruction about speculation as providing an accurate

statement of the law which, when viewed in the context of the original charge, did not

shift the burden of proof to Appellees. Further, the dissent underscored the nature of

Appellees’ closing argument was such that it did more than simply challenge the

adequacy of the Poletts’ evidence regarding causation; rather, it propounded alternative

theories of causation for Mrs. Polett’s injuries, and the trial court’s instruction properly

reminded the jury that such theories must be based on trial evidence and not just

speculation.

The Poletts subsequently sought allowance of appeal from our Court of the

Superior Court decision, which we granted on the following issues:

[I]. Did the trial court act within its discretion by precluding
from evidence an expired tolling agreement between [the
Poletts] and Dr. Booth, where the trial court had substantial
grounds for preclusion, including that admission of the
agreement would cause confusion and delay, and where
[Appellees] had other means to attempt impeaching the
credibility of Dr. Booth as a witness on [the Poletts’] behalf?

[II]. Did the trial court act within its discretion by allowing Dr.
Booth to give expert testimony on causation where Dr. Booth
reached his causation opinion during the course of treating
[Appellant Margo Polett] and before litigation was
anticipated?

[III]. Did the trial court act within its discretion by instructing
the jury not to speculate about alternative causes of
[Appellant Margo Polett’s] injuries where[:] (a) during closing
argument, [Appellees’] counsel speculated about [Appellant
Margo Polett’s] injuries after promising the trial court it would
not speculate; (b) the trial court's no-speculation instruction
incorporated prior causation instructions that squarely placed
the burden of proof on [the Poletts]; and (c) the no-

[J-91-2014] - 21
 speculation instruction correctly stated Pennsylvania law
against speculation?

Polett v. Public Communications, Inc., 91 A.3d 1237 (Pa. 2014).8

II. Analysis

A. The Trial Court’s decision not to admit the tolling agreement between the
Poletts and Dr. Booth

In the first issue, we consider whether the Superior Court erred in its ruling that

the trial court had abused its discretion by barring the introduction of the tolling

agreement as trial evidence. The Poletts first defend the trial court’s decision to exclude

the tolling agreement as reasonable, and in accord with the discretionary latitude given

to it by Pa.R.E. 403, which permits exclusion of otherwise admissible evidence if the

probative value is outweighed by the danger of “unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Poletts’ Brief at 21 (quoting Pa.R.E. 403). The Poletts minimize the

probative value of the tolling agreement, pointing out that Appellees, by stipulating that

Dr. Booth bore no responsibility for Mrs. Polett’s injuries, “ratified Dr. Booth as a

disinterested witness about the events in question,” because this stipulation established

that he had no incentive to lie either during his deposition or at trial. Poletts’ Brief at 21.

The Poletts argue that, because of the tolling agreement’s minimal probative value, the

trial court reasonably exercised its discretion in precluding it, inasmuch as the

countervailing reasons to deny its admission articulated by the Poletts at trial were

properly given greater weight by the trial court.

8
For purposes of our discussion and analysis, the issues have been reordered.

[J-91-2014] - 22
 The Poletts contend that the Superior Court improperly substituted its judgment

for the trial court’s by relying on AMEC, supra, since that case involved the question of

whether a tolling agreement was discoverable under the federal rules of civil procedure,

not whether it was admissible at trial; thus, it does not establish that the trial court,

instantly, abused its discretion in barring the agreement from evidence. Further, the

Poletts assert that the Superior Court gave too much weight to Appellees’ contention

that the preclusion of the tolling agreement interfered with Appellees’ ability to highlight

for the jury any bias Dr. Booth may have possessed. The Poletts observe that

Appellees had the opportunity to ask Dr. Booth, at both his deposition and at trial,

whether he was at risk of being sued by the Poletts, without making reference to the

tolling agreement. Consequently, according to the Poletts, the trial court’s decision to

bar the admission of the tolling agreement did not stop Appellees from challenging Dr.

Booth’s credibility on the basis that he was at risk for suit by the Poletts; rather, it merely

prohibited them from using the term “tolling agreement” in the presentation of their case

to the jury. Poletts’ Brief at 24.

Additionally, the Poletts advance what they consider to be “[s]ignificant policy

considerations,” which they contend weigh in favor of the trial court’s discretionary

decision, and against what they consider to be the Superior Court’s adoption of a

general rule of admissibility for tolling agreements. The Poletts proffer that the Superior

Court’s decision has the potential to damage the patient-physician relationship any time

litigation is contemplated, because it deprives both the patient and his or her physician

of the “safe harbor” which a tolling agreement provides. Id. at 24-25. Specifically, the

Poletts note that patients have a vitally important interest in maintaining a treatment

relationship with their physicians, “because of the crucial role [the] physicians play in

[the patient’s] ongoing care, [and, in] turn, treating physicians like Dr. Booth have

[J-91-2014] - 23
significant professional and personal interests in continuing to treat their patients even

when potential litigation looms.” In the Poletts’ view, tolling agreements serve to

preserve that relationship. Id. The Poletts contend that these mutual physician-patient

interests in maintaining an effective treatment relationship are exactly what motivated

them to enter into the tolling agreement with Dr. Booth, as they viewed him to be the

physician who could best cure Mrs. Polett, and, had they sued him, it would have

potentially caused him to quit treating her — thereby depriving her of the greatest

chance for successful treatment of her medical condition.

Based on their interpretation of the Superior Court decision as standing for the

proposition that tolling agreements are always admissible as impeachment evidence,

the Poletts point out that this decision will have a particularly negative impact on

physicians. The Poletts develop that, because of this decision, every time physicians

now sign a tolling agreement, they must worry that their integrity and competency will be

attacked at trial on the basis of that agreement. The Poletts maintain that this prospect

will defeat the fundamental purpose of a tolling agreement, which is to preserve the

patient-physician relationship, even when the physician may have no connection with

forthcoming litigation, or, at most, will be a fact witness in that litigation.

Additionally, the Poletts assert that allowing the admissibility of tolling

agreements as impeachment evidence would result in incentives for physicians to be

sued. The Poletts highlight the fact that tolling agreements are used by attorneys for

many reasons which a jury would not easily understand without an explanation, and that

such an explanation, the Poletts aver, “would involve a mini-course in claims,

procedural defenses, litigation strategy, and the client’s relationship with the potential

defendant.” Id. at 26. Absent such information being furnished to the jury, the Poletts

argue that the tolling agreement would serve as a virtual “scarlet letter” hanging around

[J-91-2014] - 24
a physician’s neck since it would suggest to the jury that the physician was at fault and

the parties have reached a settlement, or, alternatively, that the party who executed the

tolling agreement colluded with the physician with respect to the subject of his or her

testimony. Id. at 27. The Poletts suggest that, to avoid this prospect, attorneys would

simply file suit against physicians, thereby increasing the number of lawsuits against

physicians — which is against our public policy.

The Poletts aver that, by contrast, precluding the admission of tolling agreements

also serves the same purpose undergirding the prohibition of the introduction of

settlement agreements — facilitating resolution of claims without necessity of resort to a

lawsuit. The Poletts note that tolling agreements are even more effective in furthering

this purpose since, rather than settling a lawsuit, they prevent one from ever being filed.

the Poletts also point out the broad impact of the Superior Court decision on litigation in

this Commonwealth since it is applicable to all tolling agreements, not just those

executed in the course of medical malpractice litigation.

Appellees respond by arguing that, under Pa.R.E. 607(b), they were entitled to

impeach Dr. Booth with any evidence relevant to his credibility. They contend that our

Court has permitted cross-examination of witnesses regarding the existence of other

agreements, which they characterize as similar in nature to tolling agreements.

According to Appellees: in Hatfield, supra, our Court ruled that an indemnification

agreement between one of multiple co-defendants and the plaintiff, whereby the co-

defendant would be indemnified if the other defendant was held liable, was admissible

to show bias; in Blue Stamp v. Urban Redev. Auth. of Pittsburgh, 241 A.2d 116, 118

(Pa. 1968), our Court deemed a reimbursement agreement between a witness and a

defendant, and a fee arrangement between a defendant and an expert witness,

admissible due to their potential impact on the witness’s credibility; and, in Grutski v.

[J-91-2014] - 25
Kline, 43 A.2d 142 (Pa. 1945), our Court held that a fee agreement of a doctor who was

testifying as an expert witness was admissible since the compensation the witness was

receiving could have affected his credibility.

Appellees proffer that the trial court’s decision to bar them from making reference

to the tolling agreement contravened the basic tenets of these decisions, as well as the

principle articulated in AMEC, supra, that such agreements are relevant to show witness

bias. Appellees highlight that Dr. Booth was the Poletts’ only expert on the issue of

causation and the one who performed the surgeries, which were unsuccessful at

resolving her knee problems. Appellees note that Dr. Booth testified at his June 26,

2009 deposition that the prospect of litigation was a “sword hanging over” him, which he

found “very polarizing” and that he was “upset” at the time he wrote his June 4, 2008

treatment note, in which he mentioned being presented with the tolling agreement.

Appellees Brief at 28 (quoting Dr. Booth Deposition, 6/26/09, at 102, 183-85).

Appellees aver that, since it was during his deposition that Dr. Booth “first reached a

causation opinion, with a ‘sword hanging over’ him, the jury [was required to] hear about

that litigation ‘sword’ — here, the Tolling Agreement — to assess [Dr. Booth’s]

credibility.” Appellees’ Brief at 28. Thus, in Appellees’ view, the Superior Court properly

found that the jury was entitled to hear about the tolling agreement to demonstrate Dr.

Booth’s partiality in placing responsibility for causing Mrs. Polett’s injuries on them.

Appellees dispute that the prejudicial impact of the tolling agreement outweighed

its probative value and, thus, contend that admission of the agreement was not barred

by Pa.R.E. 403. Appellees aver that the stipulation they entered into with Dr. Booth

spoke only to the issue of his culpability in causing the injury to Mrs. Polett, not whether

his causation testimony was influenced by his fear of the “litigation ‘sword’” of the tolling

[J-91-2014] - 26
event. Id. at 29. Appellees point out that nothing in the stipulation barred them from

inquiring into the matter of Dr. Booth’s bias.

Additionally, Appellees deny that other means to show Dr. Booth’s bias such as

cross-examination were sufficient since they contend it was the “’sword’ of the Tolling

Agreement — which memorialized [the Poletts’] threat to sue Dr. Booth — that was the

‘polarizing’ event.” Id. at 30. Appellees contend that, without being able to raise and

address the tolling agreement, they were unable to show why Dr. Booth first decided to

place responsibility on them almost two years after the incident.

Appellees also argue that the tolling agreement would not have confused or

misled the jury since they would merely have explained to the jury what the agreement

was — an agreement to extend the time to sue. In Appellees’ view, the degree of

complexity of an elucidation of this purpose is far less than that involved with

explanations of more complicated matters to which juries are routinely exposed.

Appellees proffer that tolling agreements are no more complex than indemnification

agreements, joint defense agreements, and expert witness fee agreements, all of which

juries easily understand. Appellees reject the prospect that privileged matters or

matters of litigation strategy would have necessitated exploration at trial; rather, in their

view, it was only Dr. Booth’s motivations, which required inquiry.

Finally, Appellees refute the Poletts’ policy arguments, first arguing that,

procedurally, such arguments were waived since the Poletts never raised them before

the trial court. On the merits, Appellees assert that the Superior Court decision did not

create a blanket rule of admissibility of all tolling agreements; rather, the admissibility of

the tolling agreement depended on the unique facts of this particular case. Further,

Appellees see scant prospect that a judicial decision which finds that tolling agreements

are admissible into evidence will adversely affect the physician-patient relationship,

[J-91-2014] - 27
inasmuch as it is unlikely that it will create any more tension in the physician-patient

relationship than the existing threat to sue. Appellees note that physicians have an

independent duty of care to their patients which exists regardless of the existence of a

tolling agreement, and that, if a patient wants to avoid the consequences of a tolling

agreement with his or her physician being admitted into evidence, i.e., termination of the

physician-patient relationship, then he or she is free to use an independent medical

expert.

Appellees deny that the same policy reasons for prohibiting the admission of

settlement agreements into evidence apply to bar the admission of tolling agreements,

as tolling agreements are executed well in advance of the final settlement of an action

and there is no need for their terms to be kept confidential. Appellees suggest that, if

juries are not informed about the existence of tolling agreements, then that would create

an incentive to present tolling agreements to a prospective target of litigation to get a

favorable causation opinion from that individual, leaving juries unaware that his or her

motive for rendering the opinion was to escape being sued.9

We review the trial court’s decision to bar Appellees’ use, at trial, of the tolling

agreement between the Poletts and Dr. Booth for impeachment purposes under an

abuse of discretion standard. See, e.g., Commonwealth v. Lane, 424 A.2d 1325, 1328

(Pa. 1981). As our Court has often explained:

An abuse of discretion “may not be found merely because an
appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support

9
The Pennsylvania Association for Justice has filed an amicus brief in this matter in
which it largely echoes the Poletts’ legal and policy arguments against the admission of
the tolling agreement as impeachment evidence.

[J-91-2014] - 28
 [from the evidence or the record] so as to be clearly
erroneous.
Ball v. Bayard Pump & Tank Co., Inc., 67 A.3d 759, 767 (Pa. 2013); Paden v. Baker

Concrete Const., 658 A.2d 341, 343 (Pa. 1995). However, “[o]ur review of the Superior

Court’s assessment of the trial court’s discretionary decision . . . is not deferential, but

plenary and de novo,” Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014), as we

stand “in the same position as the Superior Court when reviewing discretionary trial

level determinations.” Id.10

As recognized by the parties and the lower courts, the admissibility of evidence

for impeachment purposes is governed by Pa.R.E. 607(b), which provides:

(b) Evidence to Impeach a Witness. The credibility of a
witness may be impeached by any evidence relevant to that
issue, except as otherwise provided by statute or these
rules.
Pa.R.E. Rule 607(b). Under this rule, all evidence relevant to a witness’s credibility is

admissible for impeachment purposes, unless its admission is otherwise barred by a

statute, or our Rules of Evidence. Hoover, 107 A.3d at 730; Commonwealth v.

Carson, 913 A.2d 220, 254-55 (Pa. 2006). Thus, as germane to this case, even though

10
As a preliminary matter, and contrary to the assertion of the Poletts and amicus, we
do not read the Superior Court’s decision as establishing a general rule of admissibility
for tolling agreements in all cases; rather, we regard the Superior Court decision to be
based on the particular facts of this case. While we acknowledge the policy arguments
of the parties and amicus for and against the adoption of a general rule, we do not
consider it prudent to adopt such a bright line rule, inasmuch as the lower court
decisions did not rest on general policy considerations, and the parties did not press
such arguments to those tribunals. Rather, the lower courts analyzed the admissibility
of the tolling agreement using the general principles governing the admissibility of all
impeachment evidence, and, as we explain infra, our Court has utilized these same
general principles in determining the admissibility of a partial settlement agreement
which tended to show bias on the part of a witness for the signatory. See Hatfield,
supra. We, therefore, conduct our review in accordance with those principles.

[J-91-2014] - 29
evidence may be relevant to the impeachment of the credibility of a testifying witness, it

may not be used against him or her at trial if it may be excluded under Pa.R.E. 403,

which provides:

The court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
Pa.R.E. 403.

Our Court has, as a general matter, deemed any evidence demonstrating a

witness’s interest or bias to be admissible for impeachment purposes. Commonwealth

v. Birch, 616 A.2d 977, 978 (Pa. 1992). A witness’s pecuniary gain directly realized

from the act of giving testimony has long been recognized as admissible impeachment

evidence since it is well known, as a matter of practical human experience, that a

witness’s receipt of such a direct financial benefit can influence his or her testimony.

Thus, whenever a witness is being paid a fee for his or her testimony, pursuant to an

agreement, our Court has held that the jury is entitled to learn of that payment and

consider whether it may have affected the substance of the witness’s testimony. See

Grutski, 43 A.2d at 144 (doctors’ witness fees received for their testimony relevant since

such fees “could have been such as to affect their credibility as witnesses”), and Blue

Stamp, 241 A.2d at 118 (where value of property was central issue in condemnation

proceeding, monetary amount of appraisal fee paid to professional testifying on behalf

of plaintiff relevant to credibility).

Likewise, there are situations in which a witness who testifies at trial is not paid

for his or her testimony, nor is a party to the litigation, but, nevertheless, stands to

financially benefit from the trial — either directly from its outcome, or from the outcome’s

[J-91-2014] - 30
impact on future litigation in which the witness will be participating. Our Court has

recognized that, in such circumstances, because of the potential for the witness to

enhance his or her financial interest through his or her trial testimony, the trial court

must permit the witness to be cross-examined about this possibility. See, e.g., Blue

Stamp, 241 A.2d at 118 (cross-examination at condemnation trial of a corporate officer

of tenant of condemned building about bond he paid to reimburse the

condemnor/governmental authority in the event that authority had to compensate the

condemnee as the result of the trial, “proper as bearing on the witness’ credibility”);

Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991) (defendant in perjury trial was

entitled to cross-examine police detective about the fact that he was the subject of a

civil suit filed by the defendant, in which detective could have been found personally

liable, since jury could have found bias on the part of the detective due to the fact that

the perjury conviction would have reduced defendant’s probability of success in the civil

action); Birch, 616 A.2d at 978 (defendant in reckless endangerment trial arising from

his confrontation with two individuals, one of whom became the prosecution’s chief

witness against him, was entitled to cross-examine the prosecution witness about a civil

suit he intended to file against defendant for injuries sustained during the confrontation,

in order to show witness’s potential bias in testifying).

These cases, however, do not govern the disposition of the instant question.

Unlike the expert witnesses in Grutski and Blue Stamp, Dr. Booth was never paid any

fee for his testimony as an expert witness on behalf of the Poletts at trial regarding the

issue of causation, either under the tolling agreement or otherwise; thus, there existed

no direct monetary incentive from the tolling agreement which could have influenced his

[J-91-2014] - 31
trial testimony. Also, Dr. Booth was not a party to the instant litigation at the time of trial.

Further, Dr. Booth was assured that he would not be the target of any future litigation by

either of the parties when he testified at trial, inasmuch as the tolling agreement was

cancelled by the Poletts by that point — thereby time-barring any possible claims by the

Poletts against Dr. Booth — and, as discussed previously, Appellees expressly

stipulated that Dr. Booth was not responsible for Mrs. Polett’s injuries. As a result, Dr.

Booth did not face any possible adverse financial consequences from the outcome of

the trial as the corporate officer did in Blue Stamp, nor could Dr. Booth, by testifying at

trial, enhance the prospect of a favorable outcome to him in civil litigation to which he

was a party, as the witnesses in Butler and Birch could realize through their trial

testimony.

Our decision in Hatfield, supra, though, provides more pertinent guidance.11

Hatfield was a negligence and products liability action brought by a plaintiff against the

wholesale and retail sellers of an allegedly defective chair which collapsed when she sat

on it. The sellers, in turn, joined the manufacturer as an additional defendant. Prior to

trial, the sellers and their insurer entered into a “settlement and reimbursement

agreement” with the plaintiff under which they agreed to pay the plaintiff two lump sum

payments for her injuries, as well as a monthly annuity payment. The agreement

obligated the plaintiff to continue litigating the suit against the manufacturer, required

her to pay 50% of the costs of that litigation, and mandated that she reimburse the

11
We note that AMEC, the unpublished memorandum decision of a federal magistrate
judge relied on by the Superior Court, is not binding on us in these proceedings, and we
find it to have scant value in our resolution of this issue, inasmuch as it did not purport
to address the question of the admissibility of tolling agreements under Pennsylvania
law.

[J-91-2014] - 32
sellers and their insurer $50,000 if they prevailed in the suit at trial, or $25,000 if the

plaintiff settled the matter.

At trial, the manufacturer sought to introduce the agreement into evidence, which

the trial court permitted, as it deemed the agreement relevant to the jury’s weighing of

the credibility of the sellers’ testifying witnesses. The Superior Court reversed, finding

the agreement’s admission barred by 42 Pa.C.S. § 6141 (barring admission into

evidence of any “final settlement and release”). In turn, our Court granted allowance of

appeal and reversed the Superior Court, holding that the agreement, by its terms, did

not constitute a settlement as that word was defined by Section 6141.

With respect to the question of the agreement’s relevancy at trial, we opined that

“the Agreement is certainly relevant in tending to show the original [sellers’] bias.”

Hatfield, 610 A.2d at 450. We viewed the bias as originating from the fact that the

agreement indicated “an ongoing relationship [between the plaintiffs and sellers],

thereby implicitly joining nominal adversaries in an alliance against the remaining

defendant. This has the effect of distorting the adversarial process assumed by the trier

of fact to exist.” Id. at 452.

Critically, however, our Court took great care to emphasize that, even though the

agreement was relevant impeachment evidence, the trial court was under no obligation

to admit the entire agreement into evidence, or even parts thereof. Instead, we made

clear that a trial court is to perform its traditional role as an evidentiary gatekeeper, and

exercise its discretion in determining the admissibility of such an agreement by

balancing its relevancy against the potential prejudice which could ensue from its

introduction into evidence:

[J-91-2014] - 33
 The court, as with all proffered evidence, should review the
agreement, balance the relevancy of it against the potential
prejudice, and, exercising judicial discretion, admit or
exclude as much as it deems appropriate. However, where
an agreement clearly allies two or more parties against
another, such that a clear potential for bias exists which
would not otherwise be apparent to the factfinder, that part of
the agreement, or at least the existence of the reason for the
potential bias, must be conveyed to the factfinder.
Id. at 452 (footnotes omitted) (emphasis added).

The tolling agreement in the case sub judice differs, of course, from the

settlement and release agreement at issue in Hatfield, in that, as discussed above, Dr.

Booth was not a party at trial, and, therefore, the tolling agreement he entered into did

not involve a pretrial monetary settlement with the Poletts such that Dr. Booth could be

considered “allied” with them against Appellees as to apportionment of liability for Mrs.

Polett’s damages. Accordingly, the tolling agreement did not create the same potential

bias on the part of Dr. Booth in giving his trial testimony, which we stressed that the jury

should be made aware of in Hatfield — i.e., a financial inducement to shift responsibility

for causing plaintiff’s injuries to another party, due to the prospect of obtaining

reimbursement from the plaintiff for a final verdict or settlement agreement.

Nevertheless, the essence of Appellees’ claim of relevance regarding the tolling

agreement’s admissibility rests on a similar “alliance” theory — namely, that the tolling

agreement between Dr. Booth and the Poletts evidenced their mutual interest in having

Dr. Booth render a causation opinion which shifted the blame for causing Mrs. Polett’s

injuries to Appellees, thereby creating potential bias on the part of Dr. Booth. We,

therefore, regard the principles articulated in Hatfield as furnishing the proper framework

for reviewing the trial court’s exercise of discretion in precluding admission of the tolling

agreement, or allowing mention thereof, as these principles are consistent with the

general requirements for admissibility of impeachment evidence under our Rules of

[J-91-2014] - 34
Evidence — i.e., that the evidence be relevant, and that its probative value not be

outweighed by its potential to cause prejudice, confusion, or delay.

As discussed, supra, the trial court determined that the tolling agreement was not

relevant, in part, because of the timing of the formation of Dr. Booth’s opinion. In the

trial court’s view, Dr. Booth’s opinion was formed at the time he wrote his first treatment

notes in September and October 2006 identifying the bicycle ride as the genesis of Mrs.

Polett’s injuries, and, thus, because the tolling agreement was not in existence at that

time, the trial court found that the agreement could not have influenced his opinion. The

trial court also found that Appellees’ stipulation that Dr. Booth was not negligent, Dr.

Clark’s concurrence that the bike ride was a cause of Mrs. Polett’s injuries, and the fact

that Dr. Booth did not place responsibility on Appellees to be additional factors

minimizing its relevancy.

We agree with the trial court that the tolling agreement was not relevant to show

interest or bias on the part of Dr. Booth at the time he wrote his treatment notes in

September and October 2006, since the agreement was not in effect at the time.12

However, at the time Dr. Booth wrote his June 4, 2008 treatment note, and when he

was questioned by the Poletts during his 2009 deposition about what caused Mrs.

Polett’s series of knee problems, falls, and injuries, the effect of the tolling agreement on

Dr. Booth — i.e., that it indicated he was subject to a potential suit by the Poletts — was

a source of potential bias or interest. Dr. Booth described this effect in his deposition:

12
As explained at greater length infra, the trial court’s finding that the tolling agreement
did not cause Dr. Booth to form his ultimate opinion as to causation, and that he
developed it prior to being presented with the agreement, is supported by the record;
however, that is not dispositive of the question of whether, as Appellees argue, Dr.
Booth had an interest or bias at the time he expressed that causation opinion at his
deposition, which bias they contend was caused by the tolling agreement.

[J-91-2014] - 35
 This [June 4, 2008 treatment] note was prompted by
Mr. Polett, as it says in the beginning of the note, asking me
for a tolling agreement, which I never heard of. Not that I’m
a novice in the malpractice wars, but this was something
new to me. I was shocked by it, and disappointed that —
because I wanted to keep taking care of her. And now we
have all got this sword hanging over us that has culminated
with today — not culminated, but continues today. And so
this is written out of petulance, but I do believe that what I
was trying to suggest was that I didn’t think that we did
anything wrong here. We have tried to do everything that we
possibly could for these people.

****
I was dealing, as the preceding note says, that
somebody was getting better, still had trouble, if I’m working
out of my mind [sic] what to do and then I’m approached
about this tolling agreement, which was my first inkling that
there was some legal implication to our relationship. And I
have had, and I hope still have, a really good relationship
with the Poletts. I really like them as patients. This was very
polarizing to me. No physician likes the implications that
there is going to be a suit. And I never even heard of a
tolling agreement.
So my initial reaction is that I don’t know what I did
wrong here. I thought I did everything right that I could. And
if there was any provocative event for this whole string of
problems, it was probably the bike and I wasn’t — I didn’t
feel I was responsible for that . . . . I then called [my attorney]
expeditiously.

Dr. Booth Deposition, 6/26/09, at 102, 184-85 (emphasis added).

A fair reading of this testimony indicates that what affected Dr. Booth the most

was not the receipt of the tolling agreement itself, or any of its terms, which he admitted

that he did not understand, but, rather, what he considered that agreement to represent

— the possibility that he could be subjected to a lawsuit by the Poletts for his treatment

of Mrs. Polett. Dr. Booth’s understandable discomfort at the thought that the Poletts,

people with whom he had a long-standing professional relationship, might sue him was,

[J-91-2014] - 36
thus, the proverbial “sword of Damocles”13 hanging over Dr. Booth’s head at the time he

wrote his June 4, 2008 treatment note and rendered his causation opinion during the

deposition a year later. The “sword” was not, as argued by Appellees, the tolling

agreement itself. Rather, the tolling agreement was relevant to the extent that it

indicated to Dr. Booth that he might be subject to suit. Dr. Booth’s interest in avoiding

that happenstance, in turn, could have impacted the credibility of the expert causation

opinion he expressed during that deposition.14 Accordingly, we agree with the Superior

Court that the tolling agreement had relevance for impeachment purposes.

We must, therefore, turn to whether, under Pa.R.E. 403, admission of evidence

concerning the tolling agreement itself was, nevertheless, excludable at trial because its

probative value was outweighed by the potential for prejudice, confusion or delay.15

13
The expression “sword of Damocles” originated from a Greek fable in which King
Dionysius suspended a sword by a hair over the head of Damocles, one of his courtiers,
as he dined at a sumptuous banquet, in order to illustrate the grave danger that all
rulers are constantly under. Because the presence of the sword caused Damocles
great fear for his safety, and robbed him of enjoyment of the banquet, this expression
has, thus, colloquially come to be understood to signify a threat of imminent danger.
Hendrickson, Word and Phrase Origins at 701 (3rd. ed. 2004).
14
We do not mean to suggest, one way or the other, that the Poletts, in fact, had any
viable causes of action against Dr. Booth.
15
As indicated above, in their motion in limine before the trial court, the Poletts
challenged the admissibility of the tolling agreement on two grounds, arguing that it was
irrelevant under Pa.R.E. 401, and also that, even if it had relevance, Pa.R.E. 403,
nonetheless, barred its introduction; hence, we deem the trial court’s grant of the motion
in limine, in full, to be a ruling in favor of the Poletts on both contentions. Accordingly,
just as the Superior Court did, we presently consider whether the trial court was within
its discretion to exclude the tolling agreement under Pa.R.E. 403. The Superior Court,
after reversing the trial court’s conclusion that the agreement was irrelevant, conducted
its own review of the evidentiary record and concluded that, under Pa.R.E. 403, the
probative value of the agreement outweighed its prejudicial value. As we review the
record from the same vantage point as the Superior Court, we may consider the record
(continuedQ)

[J-91-2014] - 37
Consistent with the teaching of Hatfield, merely because the effect of the tolling

agreement had some relevance to impeach the credibility of Dr. Booth regarding the

causation opinions expressed in his June 4, 2008 treatment note and during his

deposition, that fact alone did not require that the trial court admit all or any part of the

agreement into evidence at trial, or permit Dr. Booth to be questioned about it. As we

emphasized in Hatfield, what is of critical importance is that a party seeking to impeach

a witness on the basis of an agreement, to which the witness is a signatory, be

permitted to convey to the factfinder “at least the existence of the reason for the

potential bias” on the part of the witness. Hatfield, 610 A.2d at 452 (emphasis added).

Here, the trial court’s order granting the Poletts’ motion in limine was narrowly confined

to precluding admission of the tolling agreement into evidence or any reference thereto

— nothing more. Therefore, the probative value of the tolling agreement itself was

scant, as it would have afforded no additional factual information or basis for Appellees

to impeach the credibility of Dr. Booth, beyond that which they were already freely

permitted to inform the jury — namely, that Dr. Booth rendered an opinion as to the

causation of Mrs. Polett’s injuries during time periods when the possibility of a lawsuit by

the Poletts against him existed.16

(Qcontinued)
evidence de novo, and determine whether the Superior Court erred in reversing the trial
court’s evidentiary ruling. Commonwealth v. Cohen, 605 A.2d 1212 (Pa. 1992).

16
Respectfully, on this issue, the dissent appears to conflate the question of what
constitutes relevant evidence under Pa.R.E. 401 with the question of how the probative
value of such evidence, even if relevant under Pa.R.E. 401, is to be assessed under
Pa.R.E. 403. See Dissenting Opinion (Eakin, J.) at 1-2. Contrary to the suggestion of
the dissent, for purposes of Pa.R.E. 403, the probative value of challenged evidence is
determined not merely by the relevance of the evidence, but, rather, by the need for
(continuedQ)

[J-91-2014] - 38
 Moreover, the slight probative value of the tolling agreement itself in this situation

was considerably outweighed by its potential for causing jury confusion, and delay in the

trial process. The tolling agreement was not self-explanatory; hence, the jury could not

properly consider it in a vacuum. The jury could not reasonably be expected to

automatically understand the nature and purpose of such an agreement upon seeing or

hearing of it. Further, the fact that a witness has signed a tolling agreement does not,

ipso facto, indicate that he or she may now be biased because of a fear of being sued.

As the Poletts have noted, parties have myriad motivations in entering into these types

of agreements, including the salutary purpose of maintaining a professional relationship

with the party who has requested the agreement, which we agree has particular

importance in promoting the preservation of doctor-patient relationships. Additionally,

as one commentator has observed, the act of signing such an agreement may actually

reduce a potential defendant’s fear of being the target of a lawsuit. See Christopher R.

(Qcontinued)
such evidence in light of other available evidence which establishes the same fact. See
1 John W. Strong McCormick on Evidence, 647 n. 62 § 185 (5th. ed.) (“If other
evidence, which does not carry the same dangers with it, could be used to establish the
same fact, then the marginal probative value of the evidence in question is slight or non-
existent.”); 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5214, at
272–73 (1978) (“In measuring probative worth under [Federal] Rule 403 the judge
cannot focus exclusively on the challenged evidence, but must look at other evidence
already introduced or available to the proponent. Just as the probative worth of the
evidence may decline when compared to the need for its use, so may that value
increase when considered in connection with other evidence in the same or adjacent
lines of proof.”); State v. Covell, 725 A.2d 675, 683 (N.J. 1999) (“Probative value is
enhanced by the absence of any other evidence that can prove the same point.
Conversely, relevant evidence [loses] some of its probative value if there is other non-
inflammatory evidence available to prove that point.”(citation omitted)). Accordingly,
trial judges are given wide latitude in assessing the probative value of evidence in light
of its relationship to the other evidence in the case.

[J-91-2014] - 39
Leslie, Esquire., Den of Inequity: The Case For Equitable Doctrines In Rule 10B-5

Cases, 81 Cal. L. Rev. 1587, 1640 (1993) (“The advantages [of tolling agreements] for

potential defendants are . . . obvious. Without the ability to agree to toll the statute of

limitations, plaintiffs would be compelled to cast a wide net and sue all potential

defendants in order to preserve any actions against the truly culpable. By agreeing to

toll the statute of limitations, defendants enhance the probability that a plaintiff ultimately

will decide not to bring suit against them.”). Tolling agreements, in and of themselves,

are, therefore, not indicative of the nature and degree of a signatory’s potential bias,

without a full explication of the particular circumstances which led that person to enter

into the agreement.

Hence, in order to give the jury a complete understanding of what the tolling

agreement in this case was, as well as its potential for creating bias on the part of Dr.

Booth, the jury would, at the very least, have been subjected to a separate proceeding

apart from the main trial, in which a qualified witness on legal matters would have been

required to testify and be cross-examined by the parties. Further, the conduct of such a

proceeding would have created the chance that the parties would have exposed Dr.

Booth to intrusive questioning about the subjective reasons which motivated him to

enter into this particular agreement. The pernicious danger of this inquiry is particularly

acute, given the prospect of its intrusion into privileged discussions between Dr. Booth

and his attorney which transpired during the formation process of the agreement.

Furthermore, this inquiry could have resulted in counsel for the Poletts being called as

fact witnesses regarding what they communicated to Dr. Booth which, as noted by the

dissent below, could have interfered with their ability to continue to represent their

[J-91-2014] - 40
clients. See Pa.R.Civ.P. 222 (“Where any attorney acting as trial counsel in the trial of

an action is called as a witness on behalf of a party whom the attorney represents, the

court may determine whether such attorney may thereafter continue to act as trial

counsel during the remainder of the trial.”); R.P.C. 3.7(a) (generally barring a lawyer

from acting as an advocate when the lawyer is likely to be called as a witness, subject

to certain narrow exceptions). Finally, such a proceeding would have been excessively

time consuming and diverted the jury’s attention away from their consideration of the

central issue in the case — whether Appellees were negligent in causing Mrs. Polett’s

harm.

Consequently, we conclude the Superior Court erred in deeming evidence

regarding the tolling agreement admissible under Pa.R.E. 403: the trial court was within

its discretion to hold the agreement had minimal probative value, which was outweighed

by its potential to cause confusion to the jury, as well as the prospect of unnecessary

delay in the conduct of the trial. Accordingly, we reverse the Superior Court’s decision

on this issue.

B. Whether the trial court abused its discretion in ruling that Dr. Booth’s expert
testimony was not excludable under Pa.R.Civ.P. 4003.5

We next turn to the question of whether the trial court abused its discretion in not

excluding, under Pa.R.Civ.P. 4003.5, Dr. Booth’s expert testimony on the issue of

causation of Mrs. Polett’s injuries, as the Superior Court found.17

17
The relevant portion of Rule 4003.5, at issue in this appeal, provides:
Rule 4003.5. Discovery of Expert Testimony. Trial Preparation
Material.
(continuedQ)

[J-91-2014] - 41
 The Poletts argue that Rule 4003.5 applies only to those expert opinions

“acquired or developed in anticipation of litigation or for trial,” and, therefore, does not

preclude the admissibility of a treating physician’s opinion developed during the time he

or she was caring for the patient. Poletts’ Brief at 41. The Poletts cite the principal

decision of our Court interpreting this rule, Miller v. Brass Rail Tavern, 664 A.2d 525,

531-32 (Pa. 1995) (holding that, because county coroner formed opinions as to time of

death and cause of death in the performance of his official duties, these opinions “were

not acquired or developed with an eye toward litigation, [and so] Rule 4003.5 is

inapplicable”), as underscoring the chief purpose of the rule — preventing surprise. In

(Qcontinued)
(a) Discovery of facts known and opinions held by an
expert, otherwise discoverable under the provisions of Rule
4003.1 and acquired or developed in anticipation of litigation
or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(A) any other party to identify each person whom the
other party expects to call as an expert witness at trial and to
state the subject matter on which the expert is expected to
testify and
(B) subject to the provisions of subdivision (a)(4), the
other party to have each expert so identified state the
substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each
opinion. The party answering the interrogatories may file as
his or her answer a report of the expert or have the
interrogatories answered by the expert. The answer or
separate report shall be signed by the expert.
***
(b) An expert witness whose identity is not disclosed in
compliance with subdivision (a)(1) of this rule, shall not be
permitted to testify on behalf of the defaulting party at the
trial of the action. However, if the failure to disclose the
identity of the witness is the result of extenuating
circumstances beyond the control of the defaulting party, the
court may grant a continuance or other appropriate relief.
Pa.R.Civ.P. 4003.5.

[J-91-2014] - 42
accordance with that purpose, the Poletts note that our Court emphasized in that case

that this rule is “a shield to protect against surprise” but not “a sword” to be used to

prevent the admission of an opinion which a witness developed during the course of

performing his or her work duties, and not in the capacity of a paid expert. Poletts’ Brief

at 41-42 (quoting Miller, 664 A.2d at 530-31).

The Poletts highlight the application of this principle by the Superior Court in the

case of Neal by Neal v. Lu, 530 A.2d 103 (Pa.Super. 1987), in which that tribunal found

that a treating physician could testify as an expert witness in his own defense, because

his opinions “were not the work product of a well-prepared litigant. They pre-dated any

litigation and are the very gist of [the plaintiff’s] cause of action.” Poletts’ Brief at 42

(quoting Neal, 503 A.2d at 108). The Poletts contrast the instant case with the decision

of the Superior Court in Kurian, supra, and that of the Commonwealth Court in Smith v.

SEPTA, 913 A.2d 338 (Pa. Cmwlth. 2006) (treating physician barred from testifying

under Rule 4003.5, since, although plaintiffs indicated they would be presenting treating

physician as expert on the issue of causation, they did not disclose his identity as a

witness and disclosed only treatment records in which he did not render an opinion as

to causation), since the treating physicians of the respective plaintiffs in those cases did

not develop their opinions during the treatment process. Instead, those experts

developed their opinions solely in anticipation that they would be called as an expert

witness in litigation, and, thus, their testimony was properly excluded under Pa.R.Civ.P.

4003.5.

The Poletts contend the factual record of the present case supports the trial

court’s conclusion that Dr. Booth developed his opinion that the bicycle ride was the

cause of Mrs. Polett’s injuries during the course of his treatment relationship with her,

and at a time that predated any prospect of litigation. Specifically, they reference Dr.

[J-91-2014] - 43
Booth’s treatment notes written on September 20 and October 23, 2006, as evidence

that, at the time he wrote those notes, he had formed an opinion as to causation, which

he reiterated in his June 4, 2008 treatment note. The Poletts emphasize that the 2006

treatment notes provide solid grounding for the trial court’s finding that, when he wrote

those notes, Dr. Booth needed to find the source of Mrs. Polett’s difficulties.

Correspondingly, they aver the trial court properly found that those notes reflected Dr.

Booth’s concern with the possibility that Mrs. Polett had developed a knee infection, and

that additionally he determined, at the time of their authoring in 2006, that Mrs. Polett

was suffering synovitis caused by the bicycle ride in the video. Poletts’ Brief at 50

(quoting Trial Court Opinion, 6/10/11, at 25). The Poletts additionally aver that Dr.

Booth consistently testified, both in his deposition and at trial, that he developed his

causation opinion in 2006, as reflected by his notes.

Further, the Poletts maintain that the trial court’s conclusion that Appellees were

not surprised by, or unable to learn of, Dr. Booth’s expert opinion on causation prior to

trial is supported, due to the fact they knew of his opinions from having access to all of

his treatment notes. Moreover, according to the Poletts, the fact that Appellees actually

deposed Dr. Booth and, during that deposition, he discussed extensively his causation

opinions, indicated that “[Appellees] had a far greater opportunity to learn Dr. Booth’s

expert opinions than litigants normally enjoy under Pennsylvania rules, and certainly

were not ‘unable’ to learn his opinions before trial.” Poletts’ Brief at 51.

The Poletts assert that, given this lack of surprise and prejudice to Appellees

from Dr. Booth’s testimony, the trial court properly found that Rule 4003.5 did not

preclude him from testifying as an expert, and that the Superior Court, by contrast,

improperly substituted its own assessment of the evidence for that of the trial court

[J-91-2014] - 44
when it overruled that court. In so doing, the Poletts proffer, the Superior Court failed to

give adequate deference to the trial court’s discretionary judgment.

Appellees respond by arguing that Rule 4003.5 may prevent a treating physician

from testifying as an expert if the physician did not acquire or develop his opinions

during the normal course of treatment, but did so in anticipation of litigation. In their

view, as illustrated by Kurian and Smith, mere observations made during the course of

treatment, such as those reflected in Dr. Booth’s treatment notes, are not enough to

establish causation. Appellees endorse the Superior Court’s finding that Dr. Booth’s

treatment notes constituted only his observations, and not an expert causation analysis.

Appellees then focus on his deposition testimony and contend that, because Dr.

Booth rendered his causation opinion during that deposition, it was an opinion

developed in anticipation of litigation and should have been excluded under Pa.R.Civ.P.

4003.5. Appellees suggest that Dr. Booth’s deposition testimony demonstrates that “he

was not concerned with identifying the cause of Mrs. Polett’s injuries, but in treating

them.” Appellees’ Brief at 52. Additionally, they contend that his deposition testimony

showed that he only was repeating what Mrs. Polett told him, did not watch the exercise

video, nor did he attempt to rule out other causes — all things which a proper causation

analysis would require. Appellees also maintain that Dr. Booth’s June 4, 2008

treatment note reflected that this was the first time he started to blame them for Mrs.

Polett’s problems and that he was prompted to do so by his receipt of the tolling

agreement. Echoing the reasoning of the Superior Court, Appellees argue that the fact

that Dr. Booth began “finger pointing” in that note demonstrates that his opinion was

reached in anticipation of this litigation. Appellees’ Brief at 53. Because, in Appellees’

view, the record confirms that Dr. Booth did not reach his causation opinion until at least

that point in time, this case is distinguishable from Miller.

[J-91-2014] - 45
 Appellees additionally argue that they suffered prejudice from the Poletts’ alleged

violation of Rule 4003.5 because of their alleged lack of notice of Dr. Booth’s causation

opinion from his treatment notes, and the fact that they treated his deposition as one of

a “fact witness.” Appellees’ Brief at 56.18 They claim that, as a result, they were “denied

his ‘opinions’ on causation, his analysis and how he reached those ‘opinions,’ and what,

if anything, he relied upon in doing so.” Id. at 57. Appellees contend they had no

chance to request a continuance to respond to Dr. Booth’s testimony, since their motion

in limine was not decided until the day of trial.

Our standard of review of the question of whether the trial court properly

permitted Dr. Booth to render expert testimony on the issue of causation is whether the

trial court abused its discretion. Grady v. Frito-Lay, 839 A.2d 1038, 1046 (Pa. 2003);

Commonwealth v. Walker, 92 A.3d 766, 772-73 (Pa. 2014). An abuse of discretion may

not be found simply because an appellate court might have reached a different

conclusion than the trial court; rather, to constitute an abuse of discretion, the trial court

ruling must be the product of “manifest unreasonableness, or partiality, prejudice, bias,

18
Relatedly, Appellees claim that Dr. Booth’s attorney conceded in his deposition that
he was not testifying as an expert witness. We do not read the deposition testimony so
broadly. After Dr. Booth gave his testimony regarding his opinion that the bicycle ride
caused Mrs. Polett’s injuries, counsel for the other now-dismissed co-defendants —
New City Productions and Franck — requested Dr. Booth watch the exercise video. Dr.
Booth’s counsel instructed him not to do so because, in her view, that would require him
to “act as an expert.” Dr. Booth Deposition, 6/26/09, at 194. Our reading of this
testimony leads us to conclude that, while counsel was expressing her opinion as to the
role Dr. Booth would be acting in if he viewed the video, this opinion was not a legal
concession as to whether Dr. Booth had already rendered an expert opinion in his
testimony regarding his treatment of Mrs. Polett. Indeed, co-defendants’ counsel plainly
regarded Dr. Booth as already having given an expert causation opinion by that point,
as she argued, in response to Dr. Booth’s counsel: “[Dr. Booth] has given testimony
here today there is some link between the filming and her subsequent problem, so he
has given expert testimony here today.” Id. Regardless, these subjective opinions do
not govern our present legal analysis of this question.

[J-91-2014] - 46
or ill-will, or such lack of support so as to be clearly erroneous.” Grady, 839 A.2d at

1046 (quoting Paden, 658 A.2d at 343). Consequently, when reviewing the trial court’s

exercise of discretion, it is improper for an appellate court to “step[] into the shoes” of

the trial judge and review the evidence de novo. Commonwealth v. Clay, 64 A.3d 1049,

1056 (Pa. 2013). As we consistently have emphasized in our jurisprudence, where the

record does not reflect an abuse of discretion by the trial court, the Superior Court may

not disturb a trial court’s discretionary ruling by substituting its own judgment for that of

the trial court. See, e.g., Bratic v. Rubendall, 99 A.3d 1, 10 (Pa. 2014); Ball, supra, 67

A.3d at 770; Botek v. Mine Safety, 611 A.2d 1174, 1176 (Pa. 1992).

Applying the aforementioned standard of appellate review, we must determine

whether the trial court’s ruling that Dr. Booth’s causation opinion was not excludable

under Rule 4003.5 constituted an abuse of discretion.19 As the trial court found, and the

parties do not dispute, the Poletts did not hire or retain Dr. Booth as an expert for the

purpose of rendering an expert opinion at trial; thus, the pivotal question under Rule

4003.5, as contested by the parties, was whether his opinion as to causation of Mrs.

Polett’s injuries was “acquired or developed in anticipation of litigation or for trial.”

Pa.R.Civ.P. 4003.5. Accordingly, as recognized by the dissent below, the point in time

at which Dr. Booth first came to his conclusion that the bicycle ride during the exercise

video was the triggering event which caused the medical condition — synovitis —

which, in turn, led to Mrs. Polett’s subsequent medical problems, is dispositive of this

question.

19
As the trial court’s ruling in question was made prior to the commencement of trial,
the evidence we examine is confined to only that which was available to the trial court at
the time of its ruling and, hence, we do not consider evidence adduced at trial in our
review. Gallagher v. Pa.L.C.B., 883 A.2d 550, 559 n.11 (Pa. 2005).

[J-91-2014] - 47
 At the time of the trial court’s ruling on Appellees’ motion in limine to exclude Dr.

Booth’s testimony, it had before it Dr. Booth’s 2006 treatment notes, as well as his

deposition testimony. Trial Court Opinion, 6/10/11, at 22, 24. The trial court found that

the words of Dr. Booth’s 2006 treatment notes “speak for themselves,” noting that, “[f]or

two years prior to any litigation, Dr. Booth had to evaluate the cause of Mrs. Polett’s

injuries in order to treat her.” Id. at 25. The court found that these notes reflected “his

concern about the possibility of an infection,” and that, in 2006, he determined the bike

ride was the cause of her synovitis. Id. Although the Superior Court obviously viewed

the September and October 2006 treatment notes differently than did the trial court —

finding that they showed only “a temporal connection between Mrs. Polett riding the

exercise bike and her injuries,” Polett, 83 A.3d at 220 — this de novo interpretation was

not a valid basis for it to disturb the trial court’s interpretation. As we have repeatedly

instructed, in reviewing a trial court’s discretionary consideration of evidence, an

appellate court is not to make a first-hand assessment of that evidence as if it were the

trial court, but rather is to confine its review to the question of whether, in light of that

evidence, the trial court’s ruling was manifest[ly] unreasonable, or so lacking in support

as to be “clearly erroneous.” Grady, supra. We conclude that the trial court’s

understanding of the meaning of those notes, as reflecting Dr. Booth’s

contemporaneous impression as to the cause of Mrs. Polett’s medical difficulties, was

neither manifestly unreasonable nor clearly erroneous, but, rather, was a rational

interpretation supported by the evidence of record.

The September 20, 2006 treatment note indicates that Dr. Booth was actively

engaged in the process of determining the cause of the deterioration in Mrs. Polett’s

condition since the last time he saw her in August 2006, prior to her riding the bicycle,

because, as the trial court logically found, such a determination of cause would be

[J-91-2014] - 48
critical to his chosen treatment.20 This treatment note specifically recounted that the

discomfort in Mrs. Polett’s knees occurred “after riding a bicycle,” and that she had

“synovitis” and “some loss of motion.” Trial Court Opinion, 6/10/11, at 24; Dr. Booth

Treatment Note, 9/20/06 (Plaintiff’s Trial Exhibit 3). The note also indicated that Dr.

Booth expressly ruled out an infection as the cause of her problems, as he found “no

evidence” of such, nor the presence of any other “serious problem.” Id. This

recordation leads to the reasonable conclusion that Dr. Booth, by process of elimination,

had identified the cause of the medical problems he was seeing at that time to be Mrs.

Polett’s riding of the bicycle.

Dr. Booth’s October 23, 2006 treatment note reinforced his view that the origin of

Mrs. Polett’s medical problems, which by then had worsened, was the bicycle ride. In

that note he stated: “The patient returns today with persistent discomfort in both knees.

This dates from the time of her exercise bike for video purposes.” Dr. Booth Treatment

Note, 10/23/06. In that note, Dr. Booth also remarked that Mrs. Polett had “several

degrees of lost extension in both knees, which I feel is related to her problem.” Id. As

the trial court determined, this note also could be reasonably construed to be an

20
Amicus, while largely tracking the arguments of the Poletts on this issue, also has
referenced an instructive trial court opinion, Graham v. I.M.O., 16 Pa. D. & C. 4th 492
(Allegheny Ct. Com. Pleas 1992), written by Judge R. Stanton Wettick — a long-
recognized authority on matters of civil litigation — which, in our view, saliently
describes why the observations of a treating physician form an integral basis of an
expert opinion developed by that physician. As Judge Wettick opined therein:
[A] physician who participates in treating a patient occupies
a very different position from a specially retained expert who
bases his or her conclusion and opinions on hospital records
and the testimony of those who have firsthand knowledge of
the patient’s condition and the treatment provided. Any
conclusion and opinions of a physician who provided
treatment will necessarily be interwoven with and influenced
by the factual observations made in the course of treatment.
Id. at 501.

[J-91-2014] - 49
expression by Dr. Booth of his belief that there existed a causal linkage between Mrs.

Polett’s unfolding medical problems and the bicycle ride.

The June 4, 2008 treatment note relied upon by the Superior Court for its

conclusion that Dr. Booth’s opinion was developed at the time he received the tolling

agreement does not render the trial court’s finding that Dr. Booth formed his causation

opinion at the time he wrote his 2006 treatment notes manifestly unreasonable, nor

clearly erroneous. Dr. Booth wrote in his June 2008 treatment note: “I have explained

that in my opinion it is the filming company who asked to ‘interview’ Mrs. Polett with

whom the responsibility lies, as well as those who employed them. I do not feel that the

hospital or myself has any obligation.” Dr. Booth Treatment Note, 6/4/08. Although the

Superior Court interpreted this note as the first time Dr. Booth associated Mrs. Polett's

injuries with the exercise bike (and influenced by the possibility of litigation), this note

cannot be read in isolation from the September and October 2006 treatment notes in

which Dr. Booth indicated a causative link between Mrs. Polett’s medical difficulties and

her riding the exercise bike. When considered in conjunction with those 2006 notes, the

June 2008 treatment note can, thus, logically be construed as Dr. Booth’s recitation of

his explanation of the opinion which he already had developed in 2006 as to the genesis

of Mrs. Polett’s knee problems. The trial court considered all three of these treatment

notes in making its finding as to the point in time at which Dr. Booth first formed his

causation opinion, and the June 2008 note did not affect its ultimate factual

determination. Inasmuch as the trial court’s finding was neither manifestly

unreasonable nor clearly erroneous, it was error for the Superior Court to override the

trial court’s judgment based on its own interpretation of the meaning of the June 2008

[J-91-2014] - 50
treatment note, and to use this interpretation as the basis to overturn the trial court’s

ruling.21

21
Although the trial court did not rely on Dr. Booth’s deposition testimony in making its
ruling, its conclusion that Dr. Booth developed his causation opinion during Mrs. Polett’s
office visits in September and October of 2006 is bolstered by that deposition testimony.
At his deposition, Dr. Booth testified that, when he saw Mrs. Polett on September 20,
2006, he was “surprised” to see her again so soon, as she had been doing so well
during her previous visit. Dr. Booth Deposition, 6/26/09, at 40. Upon observing Mrs.
Polett’s swollen knees and diminished range of motion, and hearing of her soreness, he
stated he was “disappointed” to see the reversal in her recovery progress, which had
transpired since her prior office visit, and, also, to learn that she had “been put on [an
exercise] bike and had done something that I wouldn’t have wanted her to do.” Id. at
41-42. He explained that “what happens is, if you get on an exercise bike or push your
knees in any way, sometimes they will swell, and that swelling limits your ability to bend
and straighten your knee completely, and that looked like what was going on.” Id. at 45.
As he did in his treatment note, Dr. Booth reiterated that what he was seeing at that
time was “synovitis, which is an inflammation of the lining of the knee,” and he
additionally recounted his belief that the synovitis was responsible for causing the
lessened motion he detected during that visit. Id. at 46, 105.
Dr. Booth further testified in this deposition that, when he saw Mrs. Polett on
October 23, 2006, he continued to think, at that time, that the synovitis and inflammation
he was seeing was caused by her riding of the exercise bike on August 21, 2006 during
the filming of the video:
Q. So did you think on October twenty-third that what she
was complaining about was caused by the exercise bike
experience of August twenty-first?
A. I think her problem that I was seeing at that point dated
from that time, and I think the inflammation and the synovitis
for sure were from that exercise.
* * *
Q. When you saw her on [October] twenty-third, did you
believe that what you were seeing in terms of what you
wrote here, persistent discomfort in both knees, was caused
by what had occurred on August twenty-first when she had
been on the exercise bike?
* * *
A. I think that was the most likely explanation at that point,
yes.
(continuedQ)

[J-91-2014] - 51
 Additionally, we find Appellees’ contention that they were prejudiced by the lack

of a formal expert report prepared by Dr. Booth, or the introduction at trial of his opinion

as to causation, meritless. The trial court found that Appellees were not “unfairly

surprised” by the prospect of Dr. Booth’s testimony, nor otherwise unable to learn of his

expert opinion prior to trial. Trial Court Opinion, 6/10/11, at 22. The court observed that

Appellees had full access to Dr. Booth’s treatment notes, and, critically, had participated

in his deposition.

As our Court emphasized in Miller, “the purpose of Rule 4003.5 is to prevent

surprise,” and, as a consequence, it should not be used as “a sword” to prevent

testimony from a party’s witness when the opposing party is both aware that the witness

will testify at trial, and is aware of the substance of the expert opinion which the witness

will be rendering. Miller, 664 A.2d 525, 530 n.3. In the case at bar, Dr. Booth

expressed a causation opinion during his deposition, consistent with that which he gave

at trial. During his deposition, Dr. Booth described how the synovitis he observed

during Mrs. Polett’s September and October 2006 office visits was the triggering event,

which caused her to suffer a subsequent chain of myriad medical misfortunes:

Q. But for the bike incident, you don’t believe any of
the rest of this would have happened; is that correct?
* * *
A. Probably not. I mean, she is not the only
complication I’ve got, and other people have other things
happen to them. But I think the bike caused her to have a
swollen knee that lost motion.
* * *

(Qcontinued)
Id. at 52-53. This testimony, therefore, also provides support for the trial court’s
conclusion that Dr. Booth developed his causation opinion during his treatment of Mrs.
Polett in the immediate aftermath of her bicycle ride during the Fall of 2006, and not in
anticipation of this litigation, which was not commenced until nearly two years later.

[J-91-2014] - 52
 So that whole escalating attempt to make her knee
well again probably would not have happened if she hadn’t
lost that initial motion, and that began with the bike.

Dr. Booth Deposition, 6/26/09, at 105-06. As recounted previously, Dr. Booth likewise

testified at trial that the synovitis caused by the bicycle ride was the “watershed event”

which triggered the cascade of medical problems, falls, and surgeries which Mrs. Polett

endured thereafter. See supra, at pp. 11-12. Thus, the trial court’s pretrial ruling, that

Appellees could not claim to be unfairly surprised by Dr. Booth’s causation testimony,

was neither manifestly unreasonable, nor clearly erroneous, as Appellees were made

fully aware of Dr. Booth’s specific causation theory during a deposition in which, as the

trial court noted, they were present, and in which they cross-examined Dr. Booth.22

In sum, the trial court’s ruling that Dr. Booth’s expert testimony as to causation

was not barred by Pa.R.Civ.P. 4003.5 was amply supported by the evidence of record,

and thus was reasonable. Consequently, we conclude that the trial court did not abuse

its discretion in allowing Dr. Booth to render an expert opinion at trial, and that the

22
We find the cases relied upon by Appellees to be inapt. In Kurian, the plaintiff’s
treating physician reviewed a prior physician’s treatment report and concluded the prior
physician had “apparently missed” a heart problem in the plaintiff’s EKG. Kurian, 851
A.2d. at 156. Critically, however, the physician, who was not involved in treating the
plaintiff at the time of the EKG, never reviewed the original EKG reading. Thus, the
treating physician was rendering a second-hand opinion about causation based on an
aspect of the treatment process in which he was not personally involved. This stands in
stark contrast to Dr. Booth’s role in the treatment process of Mrs. Polett, since his
causation opinion was formed contemporaneously with his observation and treatment of
her, and it was based on his personal, first-hand evaluation of the reason for the
medical conditions he was endeavoring to treat.
Smith is inapposite since the plaintiff’s treating physician’s records in that case
disclosed only the date of the patient’s injury, his diagnosis of the specific injury, and his
treatment recommendations; thus, they provided no basis for the defendant to know
what, if any, causation opinion the treating physician had formed and would be
providing at trial. By contrast, in the case at bar, Dr. Booth’s treatment notes
reasonably reflected what he deemed to be the cause of Mrs. Polett’s injury which he
was treating.

[J-91-2014] - 53
Superior Court erred by reassessing the evidence relied upon by the trial court in

making its ruling, and by supplanting the trial court’s findings with its own evaluation of

that evidence. We, therefore, reverse the order of the Superior Court as to this issue.

III. Whether the trial court erred in giving its supplemental jury instruction after
Appellees gave their closing argument.

Finally, we consider the question of whether the trial court abused its discretion in

issuing its supplemental instruction to the jury, after Attorney Stitcher gave a closing

argument on behalf of Appellees in which he enumerated various proposed causes for

the medical problems Mrs. Polett experienced after the bicycle ride, which neither

expert had discussed in their testimony. As recounted above, see supra at p. 13,

Attorney Stitcher offered other potential causes of Mrs. Polett’s knee problems: her

failure to attend all prescribed physical therapy appointments; not wearing a knee brace

while sleeping; failing to wear a knee brace while attending church during which she felt

a pop and pain in her reconstructed knee; not calling Dr. Booth immediately after the

church incident; not using a cane and walker during her trip to New York City; failing to

consult with Dr. Booth prior to engaging in her planned activities; and throwing out his

written instructions.

The Poletts argue that the trial court was best positioned to make the

assessment as to whether the supplemental charge was required, given that it was

responsible for supervising the conduct of the trial, and that, as a result, it was uniquely

suited to determine the necessity of the charge, since it heard all of the trial evidence,

supervised the morning charging conference in which the prospect of giving such a

charge was discussed in the event Appellees engaged in speculation in their closing

[J-91-2014] - 54
argument, and listened to Attorney Stitcher’s closing argument first hand.23 The Poletts

contend that our Court has recognized that, given the trial court’s distinctive vantage

point, appellate courts should give substantial deference to the trial court’s decision on

charging the jury. Poletts’ Brief at 33. The Poletts maintain that the trial court’s “real

time” decision to give the supplemental instruction was reasonable under the

circumstances, and that the Superior Court gave insufficient consideration to the trial

court’s broad latitude in instructing the jury, and, instead, substituted its “hindsight” for

the trial court’s reasoning. Id.

The Poletts assail the Superior Court’s conclusion that the trial court’s

supplemental instruction was somehow isolated from the rest of its charge, noting that

the trial court expressly reminded the jury in the supplemental instruction that it was to

incorporate its prior instructions, thereby placing the supplemental charge within the

larger context of those instructions. Id. at 34. The Poletts point out that the trial court,

in its main instruction to the jury on causation in the morning, informed the jury that the

23
The Poletts initially assert that Appellees’ challenge to the trial court’s supplemental
instruction was waived because it was not raised prior to the jury retiring to deliberate,
which they contend violates Pa.R.Civ.P. 227(b)(1). We agree with the Superior Court
that Appellees did not waive their challenge under this rule. The record reflects that the
trial court, after the morning charging conference, specifically deferred action on giving
the supplemental charge until the afternoon trial session to determine if it would be
needed after Appellees’ closing arguments. After it elected to give its supplemental
instruction during the afternoon session, the trial court noted that Attorney Conroy had
made clear in the morning conference that he objected to the instruction being given
and, thus, considered it preserved. N.T. Trial, 11/18/10 (A.M.), at 57–58. Given the trial
court’s express reassurance to counsel and consideration of Appellees’ objection prior
to giving the supplemental charge, we do not consider Appellees’ challenge waived
under Pa.R.Civ.P. 227(b)(1). See Passarello v. Grumbine, 87 A.3d 285, 292 (Pa.
2014) (“Objections to jury instructions must be made before the jury retires to deliberate,
unless the trial court specifically allows otherwise.”).

[J-91-2014] - 55
plaintiffs have the burden of proving, by a preponderance of the evidence, any claims

and contentions which entitle them to relief, and that the jury should make any such

findings based on the trial evidence. Also, the Poletts note the trial court instructed the

jury at the same time, with respect to the issue of contributory negligence, that

Appellees had the burden of proof to show “that the plaintiff was negligent and that the

plaintiff’s negligence was a substantial factor of her injury.” Poletts’ Brief at 36 (quoting

N.T. Trial, 11/18/10 (A.M.), at 77).

The Poletts argue that when the trial court’s supplemental charge is considered

together with its prior charge, the supplemental charge was a proper exercise of the trial

court’s discretion, given what they consider to be Appellees’ lack of introduction of

evidence at trial to support Attorney Stitcher’s alternative theories of the cause of Mrs.

Polett’s injuries which he argued in his closing. The Poletts characterize the effect of

the supplemental charge, when considered in conjunction with its main charge, as

merely requiring the jury to confine its consideration of causation to only “the actual

medical testimony presented at trial.” Id. at 36-7.

The Poletts further argue that the supplemental instruction was an accurate

statement of Pennsylvania law, since expert medical testimony is required to prove the

element of causation in personal injury claims. Consequently, the Poletts maintain that,

because Appellees introduced no expert testimony to support the assertions Attorney

Stitcher made in his closing argument — as neither Dr. Booth nor Dr. Clark provided

any such testimony — the trial court acted reasonably in giving the instruction.

Appellees defend the Superior Court’s reversal of the trial court, endorsing its

rationale that the trial court, through its supplemental instruction, improperly shifted the

[J-91-2014] - 56
burden of proof to it on the issue of causation. Appellees contend that the supplemental

instruction created a presumption in favor of the Poletts by, in essence, telling the jury

that they had to find that Mrs. Polett’s injuries were caused by the bike absent any

evidence from the defendants. Further, they maintain that this instruction deprived them

of their right to challenge the adequacy of the Poletts’ evidence, by requiring them to

first introduce substantive evidence regarding causation. They aver that this is not

required under Pennsylvania law, as they were permitted to simply attempt to rebut the

Poletts case through argument to the jury. Appellees’ Brief at 39 (citing Neal, supra).

Additionally, Appellees argue they were prejudiced by the timing of this instruction since

it was the last instruction the jury heard with respect to causation prior to its

deliberations, and the only instruction to reference a specific source of Mrs. Polett’s

injuries — the exercise bike.

Appellees dispute that they were responsible for triggering the need for the

supplemental charge, and suggest that they were merely attempting with their closing

argument to persuade the jury that the Poletts did not meet their burden of proof as to

causation. Appellees concede that trial courts are entitled to deference in their

discretionary rulings, but proffer that the Superior Court is not required to give deference

to a trial court ruling which is erroneous as a matter of law. Appellees aver that the

Superior Court did review the entirety of the trial court’s charge, correctly finding that it

improperly shifted the burden of proof to them in violation of the law, and, thus, its ruling

should be affirmed.24

24
The arguments of amicus largely track those of the Poletts on this issue.

[J-91-2014] - 57
 “In examining jury instructions, our standard of review is limited to determining

whether the trial court committed a clear abuse of discretion or error of law controlling

the outcome of the case.” Cooper ex. rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 187

(Pa. 2012). Since this review involves a question of law, our review is plenary. Id. In

conducting this review, we do not consider portions of a jury charge in isolation and,

thus, do not consider “whether certain portions taken out of context appear erroneous.”

Reilly by Reilly v. Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1305 (Pa.

1985). Rather, “[w]e look to the charge in its entirety, against the background of the

evidence in the particular case, to determine whether or not error was committed and

whether that error was prejudicial to the complaining party.” Id. Further, our review is

guided by the tenet that trial courts have “latitude and discretion in phrasing instructions

and are free to use their own expressions so long as the law is clearly and accurately

presented to the jury.” Cooper, 51 A.3d at 187.

In the case sub judice, the trial court relied on our Court’s decision in Smith v.

German, 253 A.2d 107 (Pa. 1969), as the legal grounding for its supplemental

instruction. See Trial Court Opinion, 6/10/11 at 48. In German, the plaintiff alleged that

he suffered severe psychotic personality changes as the result of an automobile

accident, which led to him eating soap and milk containers during his hospitalization. At

trial, to establish that a brain injury sustained during the accident was the physiological

cause of his behaviors, plaintiff presented the medical testimony of doctors involved in

his treatment. They testified as to their conclusion that the cause of plaintiff’s behaviors

was anoxia, or oxygen deprivation to the brain.

[J-91-2014] - 58
 Defendant presented an alternate theory of causation — namely, that plaintiff’s

behaviors were the product of marital difficulties. Defendant introduced no medical

evidence to support that theory of causation, but, rather, used testimony from plaintiff’s

divorce proceeding to show that, two years after the accident, he was upset with his

wife for allegedly having an affair. On appeal to our Court, plaintiff argued that, absent

some medical evidence to connect his personality changes to his marital problems, the

jury should not have been allowed to simply infer that those problems were the cause of

those changes.

This Court agreed and reversed, determining that the requirements for medical

testimony in order to establish causation are “equally applicable when a defendant

seeks to disprove the causal connection . . . presented by the plaintiff by proving one . .

. of his own.” German, 253 A.2d at 108. We noted that, in cases “[w]here there is no

obvious causal relationship, unequivocal [m]edical testimony is necessary to establish

the causal connection.” Id. (citation omitted). We further opined that, conversely, such

medical testimony is unnecessary in cases “so readily apparent that a layman could

diagnose (except by guessing) the causal connection.” Id. (citation and quotation marks

omitted).

Our Court considered the question of whether the plaintiff’s marital discord

caused his aberrant behaviors to fall within the former category of cases, since our

Court viewed the causal connection as “anything but obvious.” Id. at 109. Thus, we

held:

Just as the plaintiff was required to offer expert testimony in
order to establish the medical connection between the
injuries arising from the accident and the personality change,
so too is such expert testimony required by the party seeking

[J-91-2014] - 59
 to establish that it was not the injury but some other factor
which caused the change. This is clearly required by our
case law, because the causation here involves explanations
and inferences not within the range of ordinary training,
knowledge, intelligence and experience.

Id. (citation and quotation marks omitted).25

Applying the principles of German herein, the trial court found that “[t]here was

no medical testimony presented by [Appellees] to permit the jury to speculate on an

alternative causation theory based on the absences at physical therapy, sleeping

without a knee brace, not calling Dr. Booth or travelling without a cane or walker. Dr.

Clark was silent on these areas.” Trial Court Opinion, 6/10/11, at 48. Hence, the trial

court structured its supplemental charge to “advise[] the jury that they were not

permitted to speculate about an alternative cause of her harm in the absence of medical

evidence.” Id.

We discern no legal error in the trial court’s decision to supplement its original

charge in light of the matters to which Attorney Stitcher referred in his closing.

Inasmuch as the cause of Mrs. Polett’s knee injury was something that could only be

determined by the jury through expert medical testimony, as the trial court properly

recognized, German forbade the jury from finding causation based on a particular

activity she had engaged in unless there was expert testimony before the jury to support

such a finding. Contrary to Appellees’ suggestion, Attorney Stitcher was not merely

attempting to cast doubt on the Poletts’ expert causation testimony; rather, he was

25
Since German, our Court has reaffirmed, in the context of medical malpractice cases,
the need for “detailed expert testimony because a jury of laypersons generally lacks the
knowledge to determine the factual issues of medical causation.” Toogood v. Owen
Rogal, 824 A.2d 1140, 1149 (Pa. 2003).

[J-91-2014] - 60
inviting the jury to consider alternate theories of causation by arguing that the various

factors enumerated above may have been the cause of Mrs. Polett’s injuries, even

though there was no expert testimony from any source at trial to support such a causal

connection. As the trial court found, not even Appellees’ own expert witness contended

that any of the alternate potential causes Attorney Stitcher suggested in his argument

caused Mrs. Polett’s injuries.

Thus, in the absence of such evidence, a jury finding that Mrs. Polett’s injuries

were caused by any of the activities to which Attorney Stitcher referred would have

been an exercise in speculation. Hence, to avoid this prospect, the trial court properly

gave the supplemental instruction to the jury, which was an accurate statement of the

law in accord with the teaching of German. See, e.g., Winchel v. Jain, 925 A.2d 782,

796 (Pa. Super. 2007) (trial court “properly refused to allow defense counsel to argue

alternate theories of death for which there was no evidence.”); see also Jacob R. Stein,

Closing Arguments § 1:14 (2014-2015 ed.) (“Counsel must make a legitimate argument,

within the purview of the recognized standards of advocacy, while seeking a result

favorable to his or her client. Properly, counsel in argument is confined to the record.

In other words, counsel is restricted to the law in the case, the evidence adduced from

the witnesses, the exhibits admitted into evidence, and the inferences reasonably

deductible from the testimony and exhibits.” (footnotes omitted)).

We further reject the notion that this supplemental instruction somehow shifted

the burden of proof to Appellees as to causation. If this supplemental charge, standing

alone, was all that the jury received, then Appellees’ argument would have substantial

merit; however, the trial court also gave the jury a comprehensive charge which

[J-91-2014] - 61
explained that the Poletts bore the ultimate burden of proof to show that Appellees were

negligent and that this negligence was the cause of Mrs. Polett’s injuries. Further, the

jury also was informed it could consider, from the trial evidence, whether Mrs. Polett’s

own negligence was the cause of her injuries. Relevantly, the court instructed the jury

as follows:

[I]n this case the plaintiffs claim that Mrs. Polett was injured
as a result of the negligent conduct of the defendants. The
plaintiffs also allege that the relationship between Mr. and
Mrs. Polett has suffered due to the injuries alleged by Mrs.
Polett.
The plaintiffs have the burden of proving their claims.
***
In a civil case such as this the plaintiff has the burden of
proving those contentions which entitle them [sic] to relief.
When a party has the burden of proof on a particular issue,
the party’s contention on that issue must be established by a
fair preponderance of the evidence. The evidence
establishes a contention by a preponderance of the evidence
if you are persuaded that it is more probably accurate and
true than not.
So think of a balance scale, and that’s the kind of
scale with a pan on each side. Okay? On one side of the
scale place all of the evidence that you find favorable to the
plaintiffs. On the other side, place all the evidence you find
favorable to the defendants. If after considering the
comparable weight of the evidence you feel that the scales
tip ever so slightly or to the slightest degree in favor of the
plaintiffs, your verdict must be for the plaintiffs. If the scales
tip in favor of the defendants or they’re equally balanced,
then your verdict must be for the defendants.
In this case Margo and Dan Polett have the burden of
proving that the defendants were negligent and that their
negligence was a factual cause in bringing about the
damages claimed. If after considering all of the evidence
you feel persuaded that these propositions are more
probably true than not, then your verdict must be for the
plaintiffs. Otherwise your verdict must be for the defendants,
PCI and Zimmer.
***

[J-91-2014] - 62
 The defendants claim that the plaintiff was negligent
and that the negligence was a substantial factor causing the
plaintiff’s injury. The burden is not on the plaintiff to prove
her freedom from negligence and, that is, she does not have
to prove that she was not negligent. The defendants have
the burden of proving by a fair preponderance of the
evidence that the plaintiff was negligent and that the
plaintiff’s negligence was a substantial factor of her injury.
You must decide whether defendants have proven
that the plaintiff under all the circumstances failed to use
reasonable care for her own protection. Now, this is what we
call comparative negligence. I’m going to refer to the
negligence and substantial factor as causal negligence.
If you decide more than one party was negligent, you
must decide the different percentages of negligence
attributable to each party. If you decide that the plaintiff’s
causal negligence was greater than the causal negligence of
the defendants, then the plaintiff cannot recover any
damages. If you decide that the plaintiff’s causal negligence
was equal to or less than the causal negligence of the
defendants, then you must decide the percentage of causal
negligence attributable to the plaintiff[s] and to the
defendants.

N.T Trial, 11/18/10 (A.M.), at 63, 73-74, 76-77 (emphasis added).

When it gave its supplemental charge in response to Attorney Stitcher’s closing

argument, the trial court expressly directed the jury that it was to be considered in

addition to these earlier instructions; thus, the supplemental charge must be viewed in

conjunction with those instructions, not divorced therefrom and in isolation. Cooper,

supra; Reilly, supra. As a result, the supplemental charge, when viewed in its proper

context, was an integrated part of the trial court’s overall instructions properly

apportioning the burden of proof between the parties and ensuring that the jury’s

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findings would be based on the evidence of record properly before it.26 The Superior

Court, therefore, was in error to disturb the trial court’s ruling, and we reverse this

aspect of its decision as well.

IV. Conclusion

We conclude that the trial court did not abuse its discretion in barring the tolling

agreement between the Poletts and Dr. Booth from being admitted into evidence. We

also find that the trial court did not abuse its discretion in permitting Dr. Booth to provide

expert testimony under Pa.R.Civ.P. 4003.5. Lastly, we determine that the trial court did

not err in giving its supplemental “no speculation” instruction to the jury. Consequently,

we reverse the order of the Superior Court and remand this matter to the Superior Court

so that it can consider the question of whether the trial court properly denied Appellees’

motion for remittitur of the verdict.

Order reversed. Case remanded. Jurisdiction relinquished.

Former Chief Justice Castille and former Justice McCaffery did not participate in

the decision of this case.

Messrs. Justice Baer and Stevens join the opinion.

Mr. Justice Eakin files a dissenting opinion in which Mr. Chief Justice Saylor

joins.

26
We disagree with Appellees’ suggestion that they were prejudiced by the trial court’s
supplemental charge because it restricted the jury’s consideration of alternative causes
of Mrs. Polett’s injuries other than the bicycle ride. It seems evident that the jury
understood from the trial court’s overall charge that they could find causes of Mrs.
Polett’s injuries other than the bicycle ride, so long as such findings were supported by
expert testimony, as they did, in fact, find that Mrs. Polett was 30 percent negligent in
causing her injuries.

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