J. A25007/16
NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37
MARK W. SCHWALM, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RUPEN G. MODI, D.O., :
HOLY SPIRIT HOSPITAL OF THE :
SISTERS OF CHRISTIAN CHARITY, : No. 145 MDA 2016
AND NEW JERSEY/PENNSYLVANIA :
EM-I MEDICAL SERVICES, P.C. :
Appeal from the Judgment Entered January 7, 2016,
in the Court of Common Pleas of Cumberland County
Civil Division at No. 2013-03739
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016
Mark W. Schwalm appeals from the judgment entered January 7, 2016
for defendants/appellees in this medical malpractice action. After careful
review, we affirm.
The trial court has aptly summarized the facts of this matter as
follows:
We will start with a recitation of the facts in
the light most favorable to [appellees] as the verdict
winner. [Appellant]’s girlfriend [(Leslie Shenk)]
testified at trial that he was more quiet than usual
and did not seem himself on the evening of April 7,
2012. On the morning of April 8, 2012, they got out
of bed at approximately 10:00 a.m. While the
* Former Justice specially assigned to the Superior Court.
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girlfriend was in the kitchen making coffee,
[appellant] was in the bathroom changing his
clothes. He testified that as he picked up his
overnight bag, he “felt like a warmth and like the
breath went out of [him].” When he came into the
living room, his girlfriend saw him struggle to pick up
a picture that had been knocked over. Minutes later,
she noticed that he was struggling to drink his
coffee. They went directly to the emergency room at
Holy Spirit Hospital.
At approximately 11:30 a.m. [appellant]
arrived at the hospital. Dr. [Rupen G.] Modi[, D.O.,]
examined him immediately upon arrival. [Appellant]
reported that the left side of his face was drooping
and weak and that he had had some difficulty
drinking his coffee earlier that morning. He did not
report any difficulty standing, walking, or additional
weakness.[Footnote 13] [Dr. Modi] took a history of
[appellant]’s symptoms and conducted both physical
and neurological examinations. Dr. Modi recorded
sudden onset of symptoms as thirty minutes prior.
[Footnote 13] [Appellant] did not tell
anyone at the emergency department
about him struggling to pick up a picture
frame.
A few moments later at 11:40 a.m., the triage
nurse met with [appellant]. She recorded that
[appellant] awoke at 10:00 a.m. with symptoms and
had a loss of sensation in his left arm. After
reviewing the nurse’s note, [Dr. Modi] returned to
examine [appellant]’s left arm. Upon examination,
[appellant] reported that the sensation in both arms
was the same and withdrew his complaint concerning
his left arm.
[Dr. Modi] concluded that the “most
reasonable diagnosis” for [appellant]’s symptoms
was Bell’s palsy. The third most common cause of
Bell’s palsy is Lyme disease. [Appellant] reported to
[Dr. Modi] that he had removed a deer tick from his
abdomen approximately ten days prior. A key factor
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in [Dr. Modi]’s diagnosis of Bell’s palsy was the
involvement of the left side of [appellant]’s forehead
in his facial paralysis.[Footnote 23]
[Footnote 23] [Appellant] could not raise
his left eyebrow during the physical
examination. The jury heard testimony
that a stroke would allow continuing
function of the forehead whereas a lesion
of the facial nerve (Bell’s palsy) would
cut off nerve supply to both the upper
and lower face, leaving the forehead
paralyzed.
Before [appellant]’s discharge, [Dr. Modi] held
a fifteen-minute conversation with [appellant] and
his girlfriend regarding the differences between Bell’s
palsy and stroke. [Dr. Modi] also discussed
instructions for [appellant] should his symptoms
change or worsen.
After his discharge, [appellant] drove without
incident from Camp Hill to his residence in Tower
City, a distance of approximately 38 miles. He was
examined the following morning by his family doctor
who also diagnosed Bell’s palsy. Two days later
[appellant] underwent a brain MRI, which revealed
that he had, in fact, suffered a stroke.[Footnote 28]
He was immediately admitted to the hospital.
[Footnote 28] There is no dispute
among the parties that [appellant]’s
stroke occurred prior to [Dr. Modi]’s
treatment of [appellant] on April 8,
2012.
Trial court opinion, 4/7/16 at 2-3 (citations to the transcript omitted) (some
footnotes omitted).1
1
Appellant accepts the factual and procedural history of the case as set forth
in the trial court’s Pa.R.A.P. 1925(a) opinion. (Appellant’s brief at 6.)
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[Appellant] filed this medical malpractice
action as a result of his treatment at the Emergency
Department of Holy Spirit Hospital on the morning of
April 8, 2012. He alleged that Defendant
Dr. Rupe[n] Modi was negligent in failing to diagnose
that he had suffered a stroke. He contended that
had he been correctly diagnosed, he would have
received tPA[2] treatment which could have greatly
limited the adverse effects of his stroke. A jury
found that Dr. Modi was not negligent in his care and
treatment of [appellant].[Footnote 1] [Appellant]
filed a Motion for Post-Trial Relief which we denied
on December 22, 2015.
[Footnote 1] The jury did not reach the
issues of causation and damages or
whether [Dr. Modi] was an agent of
Defendant Holy Spirit Hospital.
Id. at 1.
This timely appeal followed. Appellant complied with
Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.3
2
Tissue plasminogen activator (“tPA”) is a thrombolytic (a “clot-busting”
drug) to break up blood clots.
3
The trial court noted that appellant’s Rule 1925(b) statement was 22 pages
long with 5 pages of exhibits. (Trial court opinion, 4/7/16 at 1 n.2.) The
trial court characterized it as “neither concise nor particularly helpful.” (Id.)
We caution appellant that filing an unnecessarily voluminous Rule 1925(b)
statement can result in waiver. Jiricko v. Geico Ins. Co., 947 A.2d 206,
210-214 (Pa.Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008)
(finding waiver where the appellant’s statement “reveals a deliberate
attempt to circumvent the meaning and purpose of Rule 1925(b) and to
overwhelm the court system”). Here, however, there is no evidence of bad
faith and all of appellant’s allegations of error relate to the testimony of
appellees’ experts, Dr. James Jaffe and Dr. James Gebel. (Trial court
opinion, 4/7/16 at 1.) The trial court did address these issues in a Rule
1925(a) opinion. Therefore, we will not find appellant’s issues waived on
appeal. See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417
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Appellant has raised the following issues for this court’s review:
A. Did the trial court commit judicial error and/or
abuse its discretion in denying [appellant]’s
motion in limine and objections at trial in
permitting defendant’s expert, Dr. Gebel, to
testify beyond his role as an independent
medical consultant performing an independent
medical examination contrary to
Pa.R.C.P. 4010 and testifying as an expert
beyond his qualifications, and contrary to
Pa.R.Evid. 702, 703, 704, and 705?
B. Did the trial court err and abuse its discretion
in denying [appellant]’s motion in limine and
objections at trial in permitting Dr. Jaffe to
testify beyond the scope of his qualifications
and contrary to Pa.R.Evid. 702, 703, 704 and
705?
C. Did the trial court commit judicial error and
abuse its discretion in permitting Doctors Gebel
and Jaffe to testify as to the standard of care
of an emergency room physician when neither
was qualified as an emergency room physician
and contrary to the order of the court that
neither would testify as to the standard of care
of an emergency room physician?
Appellant’s brief at 4 (capitalization deleted).
“[W]hen reviewing the denial of a motion for new trial, we must
determine if the trial court committed an abuse of discretion or error of law
that controlled the outcome of the case.” Estate of Hicks v. Dana
Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal
(Pa. 2007) (plurality) (waiver based on the number of issues raised is
inappropriate in the absence of bad faith).
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denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).
Admission of evidence is within the sound discretion
of the trial court and we review the trial court’s
determinations regarding the admissibility of
evidence for an abuse of discretion. To constitute
reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the
complaining party.
Id. at 961 (citations omitted). “Additionally, [e]videntiary rulings which did
not affect the verdict will not provide a basis for disturbing the jury’s
judgment.” Id. (internal quotation marks and citations omitted) (brackets in
original).
Since all of appellant’s issues on appeal concern the expert testimony
of Dr. Gebel and Dr. Jaffe, we will briefly summarize their testimony.
James Jaffe, M.D., testified via videotaped deposition on July 10, 2014.
Dr. Jaffe is a board-certified neurointerventional radiologist. (Notes of
testimony, 7/10/14 at 6, 8.) Dr. Jaffe currently practices at Holy Cross
Hospital in Silver Spring, Maryland. (Id. at 9.) As part of his practice, he
assesses emergency room patients suspected of having a stroke. (Id. at 7.)
Dr. Jaffe is consulted regarding whether or not patients have had or are
having a stroke, what type of stroke (ischemic or hemorrhagic), and whether
they are eligible for catheter-based therapies, including tPA therapy. (Id.)
Dr. Jaffe reviewed numerous records, including appellant’s hospital
records, the records of his primary care physician, Dr. Edward Lentz, and
appellant’s deposition testimony. (Id. at 37-38.) According to Dr. Jaffe,
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even if appellant had been diagnosed as having a stroke, he would not have
been a candidate for tPA therapy due to the uncertain time of onset of the
condition. (Id. at 41.) Dr. Jaffe characterized appellant’s stroke as a
“wake-up stroke”:
From the record of Holy Spirit Hospital, it states that
the patient awoke with symptoms. So, to me, that’s
a wake-up stroke. We don’t know the exact timing
of the stroke. Time is brain. It could have occurred
anywhere from the time he went to sleep.
Q[.] And why is that important?
A[.] Because studies have shown if tPA is given
after four and a half hours of the onset of
stroke, it actually causes more harm to
patients than benefit.
Id. at 46.
Dr. Jaffe characterized this case as “very confusing” as to the onset of
appellant’s symptoms:
Well, I think, as we have demonstrated here, that
this is a very confusing case with confusing timing as
to onset of symptoms. As I read through the
depositions, there is [sic] multiple different times of
symptoms, multiple different times of when
symptoms are reported. In the actual medical
record, which we have to take as fact, it says the
patient awoke with symptoms. That means, to me
as a physician taking care of stroke patients, there is
no exact timing of when the stroke began. If you
have no exact timing of when the stroke began, you
have to try to get witnesses to tell you when the last
time the patient was witnessed as normal. As far as
I can see from the records and fact, that was at
midnight on, whether you want to say April 7th or
April 8th, 2012. Also in the record of deposition of
Ms. Shenk, she said he wasn’t feeling very well. He
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wasn’t quite himself. And my practice of patients
I’ve seen, one of the early signs of stroke that I hear
from family members, loved ones, is that they
weren’t feeling quite right, they weren’t themselves.
And that can be very confusing with stroke. Stroke
is a very confusing diagnosis to make. A lot of
patients come in to the emergency rooms that I’ve
seen, when I’ve been in the emergency room, who
have been diagnosed as psychotic. They later turn
out to have a stroke. They weren’t feeling quite
right. It can be one of the signs of stroke. So, when
I look at the record and the records, in fact, that
possibly the stroke began the evening before. But as
far as I can tell from the medical record that’s
written, is that he awoke with stroke, so, there is no
exact timing. I think the other fact that comes in
here is that there weren’t hard and fast stroke
symptoms. There was another diagnosis that
explained what he was having, so that the physician
who is taking care of him, from the record, thought
in his best medical opinion that it was reasonable
that this gentleman was not having a stroke, but was
suffering from Bell’s palsy, of which IV tPA will have
no benefit, will only cause harm.
Id. at 54-55.
Dr. Jaffe testified that before tPA therapy can be administered, it must
be certain that the patient is actually having a stroke:
Q[.] Now, is it fair to say that before any patient is
given tPA or a catheter-based treatment for an
acute stroke that you essentially have to be
sure that the patient is having a stroke?
A[.] Absolutely. Any of these therapies, whether
it’s IV [(intravenous)] tPA, IA [(intra-arterial)]
tPA or the catheters I use to remove clots,
they can have devastating complications that
can make a stroke patient worse than his
natural history of stroke.
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Q[.] Can you explain what you mean by that in
further detail, please?
A[.] IV tPA, for example, can cause a brain
hemorrhage, which can kill a patient. The
catheters that we use to remove clots can kill a
patient. And some instances, again, some of
these methodologies, if used improperly, will
cause more harm to a patient than benefit.
Id. at 59. Dr. Jaffe also testified that even among those stroke patients who
received IV tPA within the 4½ hour time window, 89% showed no benefit
over their natural stroke history. (Id. at 59-60.)
On cross-examination, Dr. Jaffe was questioned regarding appellant’s
statement that he woke up at 9:00 a.m. and used the bathroom without
symptoms. (Id. at 68.) Dr. Jaffe explained that appellant could have used
the bathroom at 9:00 a.m. or even brushed his teeth when he got up again
at 10:00 a.m. while having a stroke:
I recognize that patients who have strokes a lot of
times don’t recognize they’re having strokes. And
just like now, he might not have and the first time
the girlfriend recognized it, because he was dropping
things. A lot of times we wake up in bed, we sit
there in bed, we don’t necessarily do any activity and
yet we have had a stroke and we fall back to sleep
again. So, I didn’t disregard that, but that doesn’t
mean anything to me. It doesn’t mean he didn’t
already have a stroke.
Id. at 68.
My point is, is that he didn’t have any motor
weakness. I would expect him to be able to brush
his teeth. I would expect him to be able to go to the
bathroom. As we saw, even when he went to Holy
Spirit, he still was not having any motor weakness.
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That doesn’t mean his stroke wasn’t started before
that, nor does it mean his stroke didn’t happen at
9:00 when he woke up.
Id. at 70.
James M. Gebel, Jr., M.D., testified at trial on July 18, 2014. Dr. Gebel
is a stroke neurologist and is currently the chair of neurology at Akron
General Medical Center in Akron, Ohio. (Notes of testimony, 7/18/14 at 5.)
Dr. Gebel performed an independent medical examination (“IME”) of
appellant and also prepared an expert report. (Id. at 8-11.) As did
Dr. Jaffe, Dr. Gebel testified that due to the uncertainty of the onset of
appellant’s symptoms, he would not have been a viable candidate for tPA
therapy:
Q[.] Doctor, having reviewed these materials, have
you been able to identify precisely when
Mr. Schwalm’s onset of symptoms -- can you
give me a timeframe for that?
A[.] Again, sir, I don’t know how I can. I mean, I
think if we take what his girlfriend is saying
about -- you know, she uses exactly the same
phraseology, as I recall, in the e-mail about
the evening before versus the same day. If
that is what she observed, and if, in fact, that
is correct, I think that is a plausible -- you
know, the most plausible timeframe for it
starting. If what Mr. Schwalm told me, which
is that he woke up at 9:00, went to urinate,
was completely fine and asymptomatic and had
no problems, spoke to his girlfriend, and then
an hour later woke up with the symptoms,
then I’d have to place the onset at 9 a.m. If I
take what the neurologist who saw him said,
which is that he woke up, and as soon as he
got up started getting dressed and had trouble
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dressing, then, again, we’re back to the day
before or the night before when he went to
bed. I think my problem is -- and then
Dr. Modi has another history. The triage nurse
has a different history, saying he had
numbness in his face as opposed to trouble
dressing. As an expert, I don’t know which
one I can say with certainty is the correct one.
I think part of the problem with this case, quite
frankly, is we’ve got literally five or six
different renditions of what transpired, which,
of course, makes it very difficult to pin down
an exact time the stroke began and what the
exact symptoms were because we have
conflicting information.
Q[.] How does an inability to identify the onset of
the symptoms impact a patient’s candidacy for
IV tPA?
A[.] Well, you have to have either one of two
things. You either have to witness, you know,
and know for sure the moment the symptoms
begin, which this is called a witness onset, and
that’s the time that you take. You have a
maximum of either three or four and a half
hours to give the medication, depending on the
particular person’s circumstances, so that’s
when the sort of clock, if you will, starts to
tick. When it’s an unwitnessed onset of stroke
symptoms, then you have to take the time that
the person was last definitely known to be well
as opposed to the first time they were found to
be unwell.
Id. at 32-33.
Dr. Gebel also testified that tPA therapy can be dangerous if
administered to a patient who is not having a stroke:
Q[.] Doctor, the jury has heard from a number of
witnesses that you need to have a confirmed
diagnosis of a stroke and you need a confirmed
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onset of symptoms for giving intravenous tPA.
Are those rules or guidelines that you
subscribe to?
A[.] Oh, certainly. I mean, if you’re not sure the
person is having a stroke, you don’t want to
give them tPA, because it has a 6.4 percent
chance of causing hemorrhaging in the brain,
serious hemorrhaging that causes damage and
symptoms, if it’s given within three hours.
Then if it’s given within the three to four and a
half hours, what we call the bonus or extended
time window, that number goes up to
8.9 percent. You can’t take a medication that
has a 6 to 9 percent chance of causing
hemorrhaging in the brain and give it to
someone unless you’re pretty darn sure they’re
having a stroke. If you think someone is
having a seizure or some other condition or
you’re not sure or you’re not sure when the
stroke began, you know, you don’t want to
give it. Again, the sooner you give it the
better it works. It’s a lot better if you give it
within three hours than if you get past three
hours and you’re getting out to that four and a
half hour timeframe.
Id. at 35-36.
We now turn to appellant’s arguments on appeal. First, appellant
contends that the trial court erred by allowing Dr. Jaffe and Dr. Gebel to
testify that appellant suffered a “wake-up stroke” without providing the
specific references required under Pennsylvania Rules of Evidence 702, 703,
704, and 705. (Appellant’s brief at 16.) According to appellant, Dr. Modi’s
failure to consult with a neurologist or the stroke team resulted in
“pure speculation” as to whether or not appellant would have received tPA
therapy. (Id. at 16-17.)
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Rules 702 through 705, upon which appellant relies, provide as
follows:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that
possessed by the average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier
of fact to understand the evidence or to
determine a fact in issue; and
(c) the expert’s methodology is generally
accepted in the relevant field.
Pa.R.E. 702.
An expert may base an opinion on facts or data in
the case that the expert has been made aware of or
personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted.
Pa.R.E. 703.
An opinion is not objectionable just because it
embraces an ultimate issue.
Pa.R.E. 704.
If an expert states an opinion the expert must state
the facts or data on which the opinion is based.
Pa.R.E. 705.
Accordingly, Kozak [v. Struth, 531 A.2d 420 (Pa.
1987),] requires disclosure of the facts used by the
expert in forming an opinion. The disclosure can be
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accomplished in several ways. One way is to ask the
expert to assume the truth of testimony the expert
has heard or read. Kroeger Co. v. W.C.A.B., 101
Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v.
Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another
option is to pose a hypothetical question to the
expert. Dietrich v. J.I. Case Co., 390 Pa. Super.
475, 568 A.2d 1272 (1990); Hussey v. May
Department Stores, Inc., 238 Pa. Super. 431, 357
A.2d 635 (1976).
Id., Comment.
As detailed above, the evidence as to the onset of appellant’s
symptoms was conflicting and confusing, at best. However, there was
evidence to support the conclusion that appellant suffered a “wake-up
stroke,” including the neurologist’s history that as soon as appellant woke up
he had trouble getting dressed and his girlfriend’s statement that he was not
acting like himself the evening prior. It is true, as appellant points out, that
there was contrary evidence that his symptoms did not begin until after he
awoke at 10:00 a.m. and tried to pick up a photograph off the floor.
However, as Dr. Jaffe testified, the fact that it was impossible to pinpoint
precisely when appellant’s symptoms began meant that he was not a
candidate for tPA:
I think nothing’s real exact in this case and I think
that’s the whole problem with this case and why he
wasn’t a good candidate for IV tPA. There is [sic] all
sorts of symptoms all over the place. There is [sic]
all sorts of different times waking up. There is [sic]
all sorts of things the night before. There is [sic]
different timings in all these records, which does
happen in the medical record, unfortunately, but I
think this builds towards my opinion, as a reasonable
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physician, that there is no way to exactly time what’s
going on here.
Notes of testimony, 7/10/14 at 79.
The defense experts’ opinions were based on the medical records and
were not “pure speculation” as appellant suggests; rather, they testified that
even if Dr. Modi had correctly diagnosed an ischemic stroke, appellant would
not have received tPA therapy because it was impossible to determine the
onset of his symptoms. If appellant’s stroke began the night before, as
suggested by his girlfriend, or he had suffered a stroke sometime during the
night, tPA therapy would have been ineffective and perhaps even dangerous.
Furthermore, both Dr. Jaffe and Dr. Gebel were causation experts. They
were not called to testify on the standard of care. The jury never reached
the issue of causation because they found Dr. Modi was non-negligent.
Next, appellant claims that the trial court erred by allowing Dr. Gebel
to be “converted” from a Pa.R.C.P. 4010 IME expert into a Pa.R.C.P. 4003.5
liability expert. (Appellant’s brief at 17.) According to appellant, an IME is
limited to the issue of damages and there is no case law permitting a
Rule 4010 damages expert to testify as a Rule 4003.5 liability expert. (Id.
at 20-24.)
Rule 4010 provides, in relevant part, as follows:
(a)(1) As used in this rule, “examiner”
means a licensed physician,
licensed dentist or licensed
psychologist.
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(2) When the mental or physical
condition of a party, or of a person
in the custody or under the legal
control of a party, is in
controversy, the court in which the
action is pending may order the
party to submit to a physical or
mental examination by an
examiner or to produce for
examination the person in the
party’s custody or legal control.
(3) The order may be made only on
motion for good cause shown and
upon notice to the person to be
examined and to all parties and
shall specify the time, place,
manner, conditions and scope of
the examination and the person or
persons by whom it is to be made.
(4)(i) The person to be examined
shall have the right to have
counsel or other
representative present
during the examination.
The examiner’s oral
interrogation of the person
to be examined shall be
limited to matters
specifically relevant to the
scope of the examination.
Note: Ordinarily, the facts
giving rise to liability are
not germane to an
examination and the
information which the
examiner seeks should be
limited to facts of liability
germane to the issue of
damages.
Pa.R.C.P. 4010.
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Rule 4003.5 provides, in relevant part, as follows:
(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.
(3) A party may not discover facts
known or opinions held by an
expert who has been retained or
specially employed by another
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party in anticipation of litigation or
preparation for trial and who is not
expected to be called as a witness
at trial, except a medical expert as
provided in Rule 4010(b) or except
on order of court as to any other
expert upon a showing of
exceptional circumstances under
which it is impracticable for the
party seeking discovery to obtain
facts or opinions on the same
subject by other means, subject to
such restrictions as to scope and
such provisions concerning fees
and expenses as the court may
deem appropriate.
(c) To the extent that the facts known or opinions
held by an expert have been developed in
discovery proceedings under subdivision (a)(1)
or (2) of this rule, the direct testimony of the
expert at the trial may not be inconsistent with
or go beyond the fair scope of his or her
testimony in the discovery proceedings as set
forth in the deposition, answer to an
interrogatory, separate report, or supplement
thereto. However, the expert shall not be
prevented from testifying as to facts or
opinions on matters on which the expert has
not been interrogated in the discovery
proceedings.
Pa.R.C.P. 4003.5.
Here, Dr. Gebel testified that he was retained to perform an IME of
appellant and also to prepare an expert report pursuant to Rule 4003.5.
(Notes of testimony, 7/18/14 at 8.) Appellant was transported to Ohio for
the IME, and Dr. Gebel gave appellant a copy of his notes from the exam.
(Id. at 9, 11-12.) It is undisputed that appellant was also provided with a
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copy of Dr. Gebel’s May 16, 2014 expert report as required by Rule 4003.5
and that he testified consistently with that report. While it is true that the
purpose of an IME is to assess damages, appellant cites no case law for the
proposition that an IME expert is precluded from also testifying as to liability.
There is nothing to suggest that Rules 4010 and 4003.5 are mutually
exclusive. This claim fails. The trial court did not err in permitting Dr. Gebel
to testify as to both causation and damages, consistent with his report.4
Next, appellant argues that Dr. Gebel failed to comply with Rules 702
through 705 and that defense counsel should have used hypothetical
questions. (Appellant’s brief at 25.) According to appellant, Dr. Gebel’s
opinion testimony was based upon “speculation” that appellant was having a
stroke the night before he reported to the ER. (Id. at 26.) Appellant
contends that what the stroke team may or may not have done had Dr. Modi
correctly diagnosed a stroke is speculation. (Id.)
While Rule 705 permits the use of hypothetical questions, they are not
required. Pa.R.E. 705, Comment. All that is required is that the expert
disclose the facts used in forming his or her opinion. Id. Here, Dr. Gebel
based his opinion on all of the medical records and the testimony, including
Ms. Shenk’s statement that appellant was not acting normally the night
before and the Pinnacle Health neurologist’s report that when he woke up
4
Again, we note that the jury never reached the issues of causation or
damages, since they found Dr. Modi was not negligent.
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the next morning, appellant had difficulty getting dressed. Dr. Gebel
testified that in his expert opinion, appellant would not have been a good
candidate for IV tPA therapy based on the uncertainty of when the stroke
began. Therefore, Dr. Gebel’s testimony was not based on mere
“speculation” as appellant contends.
Appellant also argues that Dr. Gebel gave standard of care testimony
in violation of the pre-trial agreement and that Dr. Gebel’s opinion ignored
undisputed evidence that appellant’s symptoms did not manifest themselves
until 10:15 a.m. on April 8, 2012. (Appellant’s brief at 27-31.) Dr. Gebel
did not give standard of care testimony. He and Dr. Jaffe were called solely
to provide testimony on the issues of causation and damages. (Trial court
opinion, 4/7/16 at 5-6.) In fact, appellant opened the door to standard of
care testimony during his cross-examination of Dr. Gebel:
Q[.] If we now turn to table 9. Is this what an
emergency room is supposed to do?
A[.] Well, again, this is -- if you’re suspecting
someone is having an acute ischemic stroke --
that’s the kind, again, where a clot cuts off
circulation to the brain as opposed to a
hemorrhage in the brain -- these are the tests
that are recommended for patients with a
suspected acute, meaning recent, ischemic
stroke, yes, sir.
Q[.] Let’s start at the top.
A[.] Sure.
MR. CHAIRS: Judge, I would like to object at this
point. He asked specifically is this what an
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emergency room is supposed to do. Dr. Gebel has
been very clear with the Court that he is not here to
testify to standards of care.
MR. ANGINO: My gosh, he has testified completely
as to this being not a candidate for tPA. This is
exactly in that area.
THE COURT: All right. I’ll overrule the objection,
but that opens it up for redirect.
MR. ANGINO: Absolutely.
Notes of testimony, 7/18/14 at 49-50.
Furthermore, contrary to appellant’s argument on appeal, there was
not an undisputed “witness onset” time of 10:15 a.m. (Appellant’s brief at
31.) Ms. Shenk indicated that appellant’s symptoms could have begun as
early as the evening of April 7, 2012. Appellant told the neurologist on
April 12, 2012, that he woke up on April 8th with symptoms including
difficulty getting dressed and facial numbness. As thoroughly set forth
above, Dr. Gebel and Dr. Jaffe testified that, given the conflicting evidence
as to timing of onset of appellant’s symptoms, it was impossible to pinpoint
with any certainty when appellant’s stroke began. Therefore, appellant was
not a candidate for tPA catheter-based therapy, even if Dr. Modi had
diagnosed a stroke as opposed to Bell’s palsy. These opinions were based
on the evidence of record. Dr. Gebel and Dr. Jaffe were not required to
accept testimony that appellant’s symptoms began at 10:15 a.m. when he
attempted to pick up the photograph and had difficulty drinking his coffee,
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when other evidence indicated that appellant’s symptoms began earlier,
perhaps even the previous evening.
Finally, appellant argues that Dr. Jaffe was permitted to give
emergency room standard of care testimony in violation of a pre-trial order
and that he violated Rule 705 by testifying from the “totality” of the
evidence where the evidence was in conflict. (Appellant’s brief at 32-40.)
The trial court granted appellant’s motion in limine to limit Dr. Jaffe’s
testimony to a discussion of diagnosis of stroke, the use and efficacy of tPA
therapy, and whether appellant would have been a candidate for tPA or
other catheter-based therapy for an acute stroke. (Trial court opinion,
4/7/16 at 6.) Dr. Jaffe is not an emergency room physician and did not
testify regarding the standard of care for an emergency room physician.
(Id.) Appellant points to Dr. Jaffe’s testimony that in his opinion as a
physician who cares for stroke patients, Dr. Modi did a complete neurological
examination and acted in a medically reasonable fashion. (Notes of
testimony, 7/10/14 at 63-64.) However, as explained by the trial court,
“The statement . . . refers to the standard of care applicable to physicians
responsible for the diagnosis of stroke. Dr. Jaffe’s experience treating stroke
patients every day qualified him to testify to the standard of care which is
observed by physicians diagnosing stroke.” (Trial court opinion, 4/7/16 at 6,
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n.45.) Dr. Jaffe did not violate the pre-trial motion in limine by testifying to
the standard of care for an emergency room physician.5
Appellant also argues that under Rule 705 and Kozak, an expert
witness must provide the case-specific factual basis for his or her opinion,
and cannot endorse a particular version of contradictory evidence, which is
for the jury. (Appellant’s brief at 39-40.)
For over a century, we have consistently held that an
expert’s comment on the totality of the evidence,
where the evidence is in conflict, improperly
impinges upon the jury’s exclusive province. In
1885, Mr. Justice Green declared that “[t]he [expert]
witness can not be asked to state his opinion upon
the whole case, because that necessarily includes the
determination of what are the facts, and this can
only be done by the jury.” Yardley v.
Cuthbertson, 108 Pa. 395, 450, 1 A. 765, 773
(1885). Following Yardley, a litany of decisions
have reiterated the principle that an expert cannot
weigh contradictory evidence and place his
imprimatur upon a particular version. Our general
commitment to the sanctity of the jury’s role as
factfinder was recently re-emphasized in
Commonwealth v. Seese, 512 Pa. 439, 517 A.2d
920 (1986).
Kozak, 531 A.2d at 422-423 (additional citations omitted).
Appellant simply repeats many of the same arguments made with
respect to Dr. Gebel. Again, Dr. Jaffe’s testimony indicates that he did not
adopt any particular version of competing evidence. Indeed, the whole point
5
We also note that David J. Karras, M.D., Dr. Modi’s standard of care
expert, testified that Dr. Modi met the standard of care for an emergency
room physician. (Id. at 8.) The jury apparently agreed, since they did not
reach the issues of causation and damages.
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was that with all of the contradictory versions of when appellant first
exhibited symptoms of a stroke, it would be impossible to determine the
time of onset which would exclude appellant as a candidate for tPA therapy.
Dr. Jaffe testified on cross-examination when questioned regarding
Ms. Shenk’s statement that appellant was having trouble drinking his coffee
on the morning of April 8, 2012, followed by left-sided facial weakness and
slurring of his speech, as follows:
And this is exactly what I’m saying. Is that,
sometimes histories can be extremely inaccurate and
people get mixed things from different people. They
don’t always get the accurate history. And that’s the
whole problem with giving IV tPA. It seems like
everything here is a bit of a mishmash. I, as a
physician, evaluating this see a lot of different
stories and I don’t know exactly what’s going on
here. I don’t know the exact timing of this. The
symptoms are somewhat vague. And I’ve got to be
honest with you, this is why people don’t give IV tPA.
Notes of testimony, 7/10/14 at 78-79. On redirect, Dr. Jaffe testified that
the nursing triage note from Holy Spirit, indicating that appellant awoke that
morning at 10 a.m. with numbness in the left side of his face, as well as the
neurologist’s report from Pinnacle Health, which stated that appellant woke
up on April 8th with numbness in his left upper extremity, difficulty getting
dressed, facial numbness and drooling out of the left side of his mouth, were
consistent with his opinion that, at best, appellant suffered a “wake-up
stroke” which would rule out tPA therapy. (Id. at 83-86.) As such, this is a
case where the contradictory nature of all the evidence supports the expert’s
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opinion regarding lack of causation. Appellees’ experts did not have to
accept any particular version of conflicting evidence in order to render an
opinion. The fact that appellant disagreed with their conclusions did not
make them inadmissible.
For these reasons, we determine that the trial court did not err in
denying appellant’s motion for a new trial.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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