Crespo, A. v. Hughes, W.

J-A06031-17

2017 PA Super 230

ANTONIO CRESPO AND EDWARD : IN THE SUPERIOR COURT OF
TORRALVO : PENNSYLVANIA
:
:
v. :
:
:
WILLIAM B. HUGHES, M.D.; AND :
HUGHES & HENSELL ASSOCIATES, : No. 2231 EDA 2016
P.C.; AND TEMPLE UNIVERSITY :
HOSPITAL, INC. :
:
Appellants

Appeal from the Judgment entered June 21, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term 2012 No. 3490

BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.

OPINION BY RANSOM, J.: FILED JULY 18, 2017

Appellants, William B. Hughes, M.D., Hughes & Hensell Associates,

P.C., and Temple University Hospital, Inc., appeal from the judgment

entered June 21, 2016, in favor of Appellees, Antonio Crespo in the amount

of $4,679,676.00 and Edward Torralvo in the amount of $538,000, following

a twelve-day jury trial finding Appellants liable for medical malpractice. We

affirm in part but remand for a new trial limited to damages attributable to

Appellee Crespo.

We adopt the following factual background from the trial court’s

1925(a) opinion.

On the evening of June 16, 2011, [Appellees] Crespo and
Torralvo were power washing a brick wall when, despite using
protective gear, some of the hydrofluoric acid solution they were
using made contact with their hands. The next day, June 17,
2011, [Appellees’] hands began to itch; this itching developed
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into slight painful sensations. They proceeded to the Temple
University Hospital (“TUH”) emergency room that afternoon at
around 2:00 p.m.

The burn unit at TUH was consulted, and attending burn
specialist William Hughes, M.D. formulated a treatment plan for
both patients. The treatment plan included initial treatment for
pain management of the affected areas of the digits by injection
of lidocaine. The treatment plan also included injection of
calcium gluconate into the affected digits. The calcium
gluconate was injected to counteract the hydrofluoric acid.

Crespo's affected digits were his left index finger and his left
middle finger (his second and third digits). Those two fingers,
though itching and having slight painful sensations, had
appeared normal prior to the injections of calcium gluconate.
Shortly after the injections, Crespo's two fingers became
discolored, weeping and bleeding from the injected areas.

Torralvo, after having seen the effects of the injections of
calcium gluconate on Crespo's fingers, terminated treatment
after receiving some of the proposed injections. Crespo was
discharged from the hospital[,] and Torralvo was either
discharged or left the hospital.

Crespo's second and third digits became black and necrotic
over the coming days, and they required partial amputation at or
around the first knuckle away from the palm. Torralvo
complained of pain after his limited set of injections, and he
received surgery to remove a necrotic portion of his finger …
reducing the mass and diameter of his index finger somewhat,
especially towards the tip of the finger. They both complain of
ongoing neurological injuries, with pain at the sites of the
surgeries, especially with contact.

[Appellees'] expert on standard of care and causation, Dr.
Mosier, testified that treatment of the areas affected with a
calcium gluconate topical gel would have been within the
standard of care on these facts, but injecting calcium gluconate
into the affected digits, especially in this volume, was outside
the standard of care on these facts, due to the risk of increased
pressure cutting off blood flow to the digits. Moreover, Dr.
McClellan, [Appellees’] treating physician for the amputations
and excisions after the injuries occurred, also testified to

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causation as it pertained to his treatment of Crespo. [Appellee]
Crespo's psychiatric expert, Dr. Tereo, testified to Crespo's state
of mind before and after the injuries occurred. [Appellants]
offered Dr. Lozano as an expert on standard of care and
causation and Dr. Toborowsky as a psychiatric expert. Relevant
experts are discussed below in this section.

Crespo had significant pre-existing injuries to his back, which,
at the time of his injuries giving rise to this suit, had prevented
him from doing hard labor. However, prior to the injuries giving
rise to this suit, he had been a “cuatro” guitarist[. A] cuatro
guitar is a kind of stringed instrument popular in Puerto Rico.
Crespo had played [with] the fingers of his left hand to place on
the strings to obtain the notes; Crespo's left hand was his fret
hand. His right hand was his “pick hand.” The amputations of
the fingers at or around the first knuckle on his fret hand
affected his ability to obtain the notes. Crespo testified that
after the amputations, despite great effort, he was no longer
able to play the cuatro with any significant musical ability.
Crespo's former music manager, David LaPonte [“Laponte”],
testified at trial as to Crespo's former ability, album, and fee
arrangements. Charlie Cruz [“Cruz”], a prominent Puerto Rican
vocalist and band leader, testified as to Crespo's abilities and
Cruz's experience with Crespo in his band, as well as the fee
arrangements.

Specifically, the testimony, viewed in a light most favorable to
[Appellee] Crespo, was as follows: (1) Cruz would receive a
certain lump sum for a show; (2) Cruz would pay a portion of
that lump sum to Crespo's music manager, [LaPonte], for
Crespo's performance, and (3) Laponte would use the money to
build Crespo's “brand” through promotion, travel, music
production, and various media appearances, much of which was
documented in the exhibits.

The specific dollar value that Cruz testified to was as follows:
“Sometimes three, five [shows] a month. I would pay him
between $1,500, sometimes $1,000, sometimes $2,000.
Depends on the venue, how much I get paid, I pay the
musicians” N.T., 2/4/2015, Cruz, at 68. Cruz later clarified by
answering “yes” to a question as to whether the money went to
management. Id.

In addition to the testimony just described, the jury viewed a

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music video produced to feature Crespo playing his cuatro.
[Appellees’] [v]ocational expert Robert Cipko, Ph.D. and
economist David Hopkins testified as to income and lost wages.

Dr. Cipico, Crespo's vocational expert, testified to an hourly
income range, then summed the hourly rate to an annual
income; from $49,379 at the median for Philadelphian musicians
and vocalists to $142,750 in the top ten percent of that same
class, see N.T., Cipko, 2/3/16, at 82-84, less the residual
earning capacity in the range of $16,230 in the bottom ten
percent of entry level cashiers to $17,390 in the bottom twenty
percent of cashiers, see id. at 88. Dr. Cipko also testified to
other ranges such as slightly higher annual incomes for
Pennsylvania musicians and vocalists, and slightly higher ranges
for other entry level low physical labor employment.

Mr. Hopkins, Crespo's economist, testified to a total work-life
lost earning capacity of between $962,321 to $6,311,287,
depending on retirement age, projected income less residual
earning capacity, and adjustments for the time-value of money
and interest. N.T., Hopkins, 2/4/2016, at 43. The higher figure
was a result of using, among other factors, the higher range
from Dr. Cipko for musicians and vocalists in Philadelphia (90th
percentile), a retirement age of 70, and a discount rate to
present value using a rate of 2.5 %. Id.

The jury, given its verdict, apparently did not find the
evidence sufficient to support the higher range of the wage loss
claim. The jury ultimately concluded on the basis of the
evidence that Crespo was entitled to recover for his lost future
earnings in the amount of $2.262 million dollars. The jury's
finding for the lost wages claim was well within the range of the
testimony of Dr. Cipko and Mr. Hopkins.

The remainder of the verdicts were for pain, suffering,
disfiguration, and future medical care of Crespo, and pain,
suffering and disfiguration of Torralvo.

Trial Ct. 1925(a) Op. (“TCO”), 9/2/2016, at 2-7 (citations modified).

Appellants timely filed a post-trial motion on February 22, 2016,

requesting a new trial, or in the absence of a new trial, remittitur on the

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ground that the jury verdict was excessive. Following additional briefing, the

post-trial motion was denied by order and memorandum on June 21, 2016.

See Order and Memorandum, 6/21/2016. The court denied Appellants’

motion to mold the verdict and granted Appellees’ motions to mold the

verdict to include delay damages. See Order, 6/21/2016. On June 21,

2016, the court entered judgments on the verdicts, including delay

damages, in favor of Appellees as described above.

In July 2016, Appellants filed a post-sentence motion to strike the

judgment, which the trial court denied, and filed a supersedeas bond to stay

execution pending the outcome of the appeal. Thereafter, Appellants timely

filed their notice of appeal and 1925(b) statement. The court issued a

responsive opinion.

On appeal, Appellants raise the following issues:

1. Did the court err in denying [Appellants’] pre-trial motion in
limine seeking to preclude [Appellee] Crespo’s wage loss
claim?

2. Did the court err in granting [Appellee Crespo’s] motion in
limine seeking to preclude references to [his] marijuana use
and child support orders?

3. Did the court abuse its discretion when it permitted “fact
witnesses,” Dr. McClellan, Charlie Cruz, and David Laponte to
offer expert opinions at trial?

4. Did the court err in not permitting [Appellant] Hughes and
defense expert Lozano from addressing pathology findings
that were raised and/or referenced by treating physician, Dr.
McClellan?

5. Did the court err in allowing [Appellants’] standard of care

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expert, Dr. Mosier, to testify outside the scope of his pretrial
report?

6. Did the court err in limiting the testimony of defense expert, Dr.
Toborowsky?

7. Did the court err in permitting cross-examination of
[Appellant] Dr. Hughes with literature from 2015?

8. Did the court err in its handling of [Appellee Crespo’s]
criminal conviction?

9. Did the court err in denying [Appellants’] motion for
remittitur?

Appellants’ Br. at 4-5 (reordered for ease of analysis).

On appeal, Appellants contend that the verdicts are so excessive that a

new trial is warranted. In addition, they contend that the trial court made

several errors of law in ruling on motions in limine, handling objections, and

charging the jury that affected the outcome of the trial. Appellants’ Br. 8-9.

We will address these claims seriatim.

1. Wage Loss Claim

In their first issue, Appellants maintain that the court erred in denying

their pre-trial motion in limine to preclude the wage loss claim. Appellants’

Br. at 18; 1925(b) statement, 7/29/2016, at 1. According to Appellants,

Crespo had earned income as a construction worker from 2001 to 2008, until

injuring his back in an unrelated incident. However, Appellants claim that

there was no documentary evidence to support his contention that he

worked as a musician in 2009, 2010, or 2011, prior to his injury in this

matter. Appellants argue that Crespo never filed any tax returns reporting

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income he allegedly earned as a musician.1

The court effectively denied Appellants’ pre-trial motion, noting that

Appellants could cross-examine the witnesses, and utilize evidence such as

Crespo’s lack of reported income on his tax returns, to defend against the

wage loss claim. See N.T., 1/29/2016, at 34.

A trial court’s decision to grant or deny a pre-trial motion in
limine is subject to an evidentiary abuse of discretion standard of
review. “Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and we will not
reverse the court’s decision absent a clear abuse of discretion.
‘An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support as to be clearly
erroneous.’” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046
(Pa. 2003). In addition, to constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014) (internal
____________________________________________

1
Appellants’ motion pointed to statements made on Crespo’s application for
welfare benefits one month prior to his injury in May of 2011, as well as the
lack of evidence that he had income in 2009 or 2010, his 2013 arrest in
connection with a stolen car, and lack of evidence of employment. See
Motion in Limine to Preclude Crespo’s Claim for Earnings as a Musician, at 1-
3. Further, Appellants argued that experts’ opinions in support of Crespo’s
wage loss claim amounted to mere speculation or conjecture and that the
court permitted him to present this claim in error. See id. at 3-4; see also
Appellants’ Br. at 15-17.

Notably, Appellants did not object to the sufficiency of the evidence
presented at trial to establish a claim for lost wages, and that issue was not
preserved for appellate review. Accordingly, we proceed to address whether
the trial court’s denial of Appellant’s pre-trial motion in limine to preclude
the wage loss claim was proper.

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J-A06031-17

quotation marks and citations omitted, formatting modified) (quoting

Keystone Dedicated Logistics v. JGB Enterprises, 77 A.2d 1, 11 (Pa.

Super. 2013) (internal citations omitted)).

In this Commonwealth, this Court has consistently held that the

purpose of damages is to compensate victims to the full extent of the loss

sustained as a direct result of the injury. Kaczkowski v. Bolubasz, 421

A.2d 1027, 1029 (Pa. 1980). Lost future earnings is a distinct item of

damages, which may be awarded if properly proved and not left to mere

conjecture. Helpin v. Trustees of Univ. of Pa., 10 A.3d 267, 270 (Pa.

2010) (discussing Kaczkowski, 421 A.2d at 1029 n.5, 1031, 1033-33);2

see also Serhan v. Besteder, 500 A.2d 130, 137-138 (Pa. Super. 1985).

“[T]he relevant inquiry in a personal injury action is whether and to what

extent the plaintiff's economic horizons have been shortened.” Lupkin v.

Sternick, 636 A.2d 661, 664 (Pa. Super. 1994), aff'd, 667 A.2d 13 (Pa.

1995) (citing Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 6 (Pa. 1991);

Serhan, 500 A.2d at 138). A plaintiff has the burden of presenting

____________________________________________

2
In Kaczkowski, our Supreme Court rejected the notion that a plaintiff’s
recovery of lost future earnings be limited to compensation received based
upon his or her salary as of the date of the debilitating event. Rather, the
Kaczkowski Court held that reliable economic data concerning the impact
of injury on the victim’s lost future productivity could be considered. 421
A.2d at 1038. “Productivity includes such factors as age, maturity,
education, skill, and technology advances.” Helpin, 10 A.3d at 273
(discussing Kaczkowski at 1029 n.5, 1031, 1033-33).

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“sufficient data from which the damages can be assessed with reasonable

certainty.” Kearns v. Clark, 493 A.2d 1358, 1364 (Pa. Super. 1985)

(quoting Gordon v. Trovato, 338 A.2d 653, 657 (Pa. Super. 1975)).

“There must be some evidence from which a jury can reasonably infer that

earning power will probably be reduced or limited in the future.” Kearns,

493 A.2d at 1364.

In response to the pre-trial motion in limine, Appellees maintained that

Crespo’s pre-trial deposition established that he had a career as a musician

and that there was sufficient evidence to present the wage loss claim to the

jury based on reports of vocational and actuarial experts that proposed to

testify as to Crespo’s loss of potential earning capacity. See Plaintiffs’

Response to Motion to Preclude Wage Loss Claim, 1/28/2016, at 3. In his

deposition, Crespo had testified that he earned close to $22/hour as a

musician; however, he could not specifically indicate how much he was

earning on an annual basis. See id., at Exhibit D: Crespo Dep.,

12/23/2013, at 19. Further, Crespo stated that he had an oral agreement

with Charlie Cruz to get paid for his performances “numerous amounts of

times.” Id. at 21.

In addition, Appellees’ expert report from their vocational expert, Dr.

Robert Cipko, provided pertinent wage calculations for a musician in the

Philadelphia area. See Plaintiffs’ Response to Motion to Preclude Wage Loss

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Claim, 1/28/2016, at 3; Exhibit B: Dr. Cipko Report, 3/23/2015, at 14.3 Dr.

Cipko opined that Crespo “cannot play chord progressions on the guitar now

with just two fingers on the left hand and has lost the potential for earnings

as a musician.” Id. at 14-15.4 Cipko’s report also detailed how Crespo tried

to return to truck driving but had a concern about safety “due to difficulty of

operating a steering wheel.” Id. Finally, David Hopkins, an actuary and

economic expert provided further evidence that Crespo suffered a loss in

earning capacity. His report estimated loss of earnings in the range of one

to six million dollars. See Plaintiffs’ Response to Motion to Preclude Wage

Loss Claim, 1/28/2016, at 2, Exhibit E.

Here, Appellees presented sufficient evidence that Crespo’s economic

horizons had been shortened as a direct result of his injury for his wage loss

claim to go to trial. See Lupkin, 636 A.2d at 664; Kearns, 493 A.2d at

____________________________________________

3
In order to calculate projected lost future income, Dr. Cipko’s report
compared the median, 75%, and 90% level salary for a musician in
Philadelphia, in Pennsylvania, and in the United States. Exhibit B: Dr. Cipko
Report, 3/23/2015, at 14. For instance, Dr. Cipko calculated lost potential
earnings in terms of annual wages for a musician living in Philadelphia could
range from $53,373 at the median (50%) level to $117,728 at the 90%
level. Id.
4
Dr. Cipko emphasized in his report that Crespo believed he could have
made near $100,000 a year if he had not lost his fingers. The report
concluded that Crespo had been making the equivalent to a median level
musician and that his musical career was progressing upward, suggesting
that his wages fell within the 90% levels of the annual wages for the city,
state, and nation. Id. at 15.

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J-A06031-17

1364.5 Accordingly, we discern no error of law or abuse of discretion in the

trial court’s denial of Appellants’ pre-trial motion in limine to preclude the

wage loss claim. See Parr, 109 A.3d at 690.

2. Crespo’s Marijuana Use and Child Support Orders

In their second issue, Appellants contend the court erred in granting

Appellee Crespo’s pre-trial motion in limine to preclude questioning about his

marijuana use and outstanding child support orders.

The threshold consideration in determining admissibility is relevance.

See Pa.R.E. 401-402.

Evidence is relevant if it has ‘any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.’ Pa.R.E. 401. ‘All relevant evidence is
admissible, except as otherwise provided by law.’ Pa.R.E. 402.
‘Although relevant, evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.’ Pa.R.E. 403.
____________________________________________

5
Although Appellants have not preserved a claim regarding the sufficiency of
the evidence presented at trial in support of the wage loss claim, we note
that several witnesses testified in support of Crespo’s ability to play the
cuatro as a professional musician. Specifically, Cruz and Laponte testified
that Crespo performed as a musician and worked on two albums prior to his
injury. See N.T., Laponte, 2/3/2016, at 9-28; N.T., Cruz, 2/4/2016, 65-75.
It was within the prerogative of the jury to credit this testimony and reject
Appellants’ suggestion that Crespo’s wage loss was to any extent
speculative. See Gillingham v. Consol Energy, Inc., 51 A.3d 841, 861
(Pa. Super. 2012) (“The factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.”) (quoting
Samuel-Bassett v. Kia Motors America, 34 A.3d 1, 39 (Pa. 2011)).

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Brady v. Urbas, 80 A.3d 480, 483–84 (Pa. Super. 2013), aff'd, 111 A.3d

1155 (Pa. 2015). As the issue in this case is medical malpractice, we

consider the following in applying the test for relevance.

[T]o prevail in a medical malpractice action, a plaintiff must
establish a duty owed by the physician to the patient, a breach
of that duty by the physician, that the breach was the proximate
cause of the harm suffered, and the damages suffered were a
direct result of the harm.

Brady, 80 A.3d at 484 (quoting Toogood v. Owen J. Rogal, D.D.S., P.C.,

824 A.2d 1140, 1145 (Pa. 2003) (quotation marks and citation omitted)).

According to Appellants, Crespo’s medical records stated that he used

marijuana to treat “the alleged pain from the injuries to his fingers.”

Appellants’ Br. at 25. They argue that “any treatment modality” for the pain

caused by the injury, including marijuana, was relevant and admissible, as it

related to Mr. Crespo’s ongoing pain and suffering. Id. Appellants’ claim is

without merit.

The court determined that the probative value of Crespo’s marijuana

use was outweighed by the tendency of the evidence to be unfairly

prejudicial to the defense. See TCO at 22. We agree. Crespo’s marijuana

use is not relevant to any fact that is of consequence in the underlying cause

of action. Accordingly, the trial court did not abuse its discretion in

precluding questions related to his marijuana use. See Pa.R.E. 403.

Appellants also contend that the court erred in precluding questions

relating to Mr. Crespo’s failure to pay child support. According to Appellants,

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“Crespo claimed he was making substantial money as a musician under the

table in the years preceding his injury,” and the child support orders

provided “circumstantial evidence that his earnings were not what they were

purported to be.” Appellants’ Br. at 25-26.

Here, the trial court found that “past support orders would risk

inducing the jury to render a verdict based on emotion or contempt.” TCO

at 25. We agree. The court has broad discretion to exclude potentially

misleading evidence based on the danger of unfair prejudice. Gen. Equip.

Mfrs. v. Westfield Ins. Co., 635 A.2d 173, 182 (Pa. Super. 1993); Whyte

v. Robinson, 617 A.2d 380, 383 (Pa. Super. 1992) (citations omitted)

(noting that the court may preclude evidence that has “an undue tendency

to suggest a decision on an improper basis”). Moreover, Crespo’s failure to

pay child support neither proves nor disproves that Crespo was working or

capable of gainful employment as a musician before his injury. Accordingly,

the court did not abuse its discretion in granting Appellees’ motion in limine

to preclude this evidence. See Parr, 109 A.3d at 690.

Next, Appellants assert that the trial court abused its discretion in

denying them a new trial based on several, allegedly erroneous evidentiary

rulings. This Court has previously described the manner in which we review

a trial court’s decision to grant or deny a party’s motion for a new trial.

Consideration of all new trial claims is grounded firmly in the
harmless error doctrine “[which] underlies every decision to
grant or deny a new trial. A new trial is not warranted merely
because some irregularity occurred during the trial or another

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trial judge would have ruled differently; the moving party must
demonstrate to the trial court that he or she has suffered
prejudice from the mistake.” Harman ex rel. Harman v.
Borah, 756 A.2d 1116, 1122 (Pa. 2000). Once the trial court
passes on the moving party's claim, the scope and standard of
appellate review coalesce in relation to the reasons the trial
court stated for the action it took. See id. Where the court is
presented with a finite set of reasons supporting or opposing its
disposition and the court limits its ruling by reference to those
same reasons, our scope of review is similarly limited. See id.
at 1123. Thus, “[w]here the trial court articulates a single
mistake (or a finite set of mistakes), the appellate court's review
is limited in scope to the stated reason, and the appellate court
must review that reason under the appropriate standard.” Id.
(quoting Morrison v. Com., Dept. of Pub. Welfare, 646 A.2d
565, 571 (Pa. 1994)).

Our standard of review prescribes the degree of scrutiny we
apply to the trial court's decision and the manner in which we
evaluate its conclusions. See id. at 1122 (citing Morrison, 646
A.2d at 570). If the trial court's challenged ruling was one of
law, we review its grant or denial of a new trial on that point to
discern if the court committed legal error. See id. at 1123.
Similarly, if the challenged ruling involved a discretionary act, we
review the disposition of the new trial motion relative to that act
for abuse of discretion. See id. “Discretion must be exercised
on the foundation of reason.” Id. Accordingly,

[a]n abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias, or ill will. A finding
by an appellate court that it would have reached a
different result than the trial court does not constitute a
finding of an abuse of discretion.

Id. (quoting Morrison, 646 A.2d at 570). “Where the record
adequately supports the trial court's reasons and factual basis,
the court did not abuse its discretion.” Id.

Rettger v. UPMC Shadyside, 991 A.2d 915, 923–24 (Pa. Super. 2010).

In reviewing Appellants’ evidentiary claims, we apply the following

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standard in assessing the trial court’s underlying ruling.

The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound
discretion of the trial court. Thus[,] our standard of review is
very narrow; we may only reverse upon a showing that the trial
court clearly abused its discretion or committed an error of law.
To constitute reversible error, an evidentiary ruling must not
only be erroneous, but also harmful or prejudicial to the
complaining party.

Hawkey v. Peirsel, 869 A.2d 983, 989 (Pa. Super. 2005) (quoting Turney

Media Fuel, Inc., v. Toll Bros., 725 A.2d 836, 839 (Pa. Super. 1999)

(citations omitted)). We consider each challenged ruling in turn.

3. Fact Witnesses

In their third issue, Appellants contend that the “court abused its

discretion when it permitted ‘fact witnesses,’ Dr. McClellan, Charlie Cruz, and

David Laponte to offer expert opinions at trial.” 1925(b) Statement at 1.

According to Appellants, this testimony violated discovery rules governing

the use of experts in medical malpractice cases.

Upon our review of the post-trial motion, we conclude that Appellants

have sufficiently preserved this issue with respect to Dr. McClellan and to

Cruz. See Post Trial Motion, 2/22/2016, at 2, 3 (issues numbered 2 and 6).

“Pa.R.Civ.P. 227.1 requires parties to file post-trial motions in order to

preserve issues for appeal. If an issue has not been raised in a post-trial

motion, it is waived for appeal purposes.” Diamond Reo Truck Co. v. Mid-

Pacific Indus., 806 A.2d 423, 428 (Pa. Super. 2002) (quoting L.B. Foster

Co. v. Lane Enterprises, 710 A.2d 55 (Pa. 1998) (citations omitted)).

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Appellants waived any claim with regard to Laponte’s testimony by failing to

raise it in their post-trial motion.

Appellants argue that testimonies of Dr. McClellan and Cruz exceeded

the scope of Pennsylvania Rule of Evidence 701, which states:

If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Pa.R.E. 701.

A. Dr. McClellan

According to Appellants, Dr. McClellan rendered an expert opinion on

causation even though he was not identified as an expert. See Appellants’

Br. at 10-12 (citing in support Pa.R.C.P. 4003.5 (requiring pre-trial

disclosure of experts and expert reports “acquired or developed in

anticipation of litigation or for trial”); Sindler v. Goldman, 454 A.2d 1054,

1057 (Pa. Super. 1982) (recognizing that compliance with Rule 4003.5 is

critical to prevent unfair surprise)).

Dr. McClellan is a physician specializing in plastic and reconstructive

hand surgery and wound healing with whom Crespo had seventeen office

visits. See N.T., McClellan, 2/2/2016, 19. Dr. McClellan performed the

surgical amputation of his fingers. See id. On direct examination, counsel

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asked Dr. McClellan to clarify a note on his medical records regarding the

cause of devitalization in Crespo’s fingers. See id. at 28. Dr. McClellan

testified, over Appellants’ objection, that “[he] felt that the treatment

rendered previously and the acid caused these injuries.” Id.

Appellants maintain that this testimony was highly improper and

prejudicial as it related to the standard of care and causation at issue in the

trial and was not related to the treatment rendered by Dr. McClellan to

Crespo. See Appellants’ Br. at 12. Appellants’ argument is without merit.

Here, the trial court found Dr. McClellan qualified to comment as a fact

witness on causation because his testimony was based on his observations,

diagnosis, and medical judgment at the time he rendered treatment to

Crespo. See TCO at 10. We agree.

“[T]echnical expertise does not ipso facto convert a fact witness, who

might explain how data was gathered, into an expert witness, who renders

an opinion based on the data.” Deeds v. Univ. of Pennsylvania Med.

Ctr., 110 A.3d 1009, 1017 (Pa. Super. 2015), reargument denied (Apr. 7,

2015), appeal dismissed sub nom., 128 A.3d 764 (Pa. 2015) (quoting

Branham v. Rohm & Haas Co., 19 A.3d 1094, 1110 (Pa. Super. 2011)).

“Fact testimony may include opinion or inferences so long as those opinions

or inferences are rationally based on the witness's perceptions and helpful to

a clear understanding of his or her testimony.” Id. (quoting Brady by

Brady v. Ballay, 704 A.2d 1076, 1082 (Pa. Super. 1997)).

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J-A06031-17

In this instance, Dr. McClellan was asked to clarify his own notes on

medical records that he made at the time of rendering treatment to Crespo

as his treating physician. Because Dr. McClellan’s opinions were not

developed in anticipation of litigation, Rule 4003.5 does not apply. See,

e.g., Miller v. Brass Rail Tavern, 664 A.2d 525, 531-32 (Pa. 1995) (noting

that, under Pa.R.C.P. 4003.5, the rule of preclusion for failing to identify

experts applies only where the expert opinions were formulated “in

anticipation of litigation or for trial”). Accordingly, Appellants’ argument is

without merit, and we discern no abuse of the trial court’s discretion.

B. Cruz

Next, Appellants contend that the court erred in permitting Cruz to

render expert opinions regarding Crespo’s pre-injury and post-injury skill as

a musician. They argue that this testimony exceeded the scope of Pa.R.E.

701 because the “average lay person is unlikely to know anything about the

Latin music business and/or the cuatro guitar, let alone what someone who

plays the cuatro guitar would be expected to earn.” Appellants’ Br. at 14-15.

According to Appellants, Appellees’ failure to provide notice of such expert

testimony prevented them from retaining an expert in the music industry to

rebut their opinions. Appellants’ argument is not persuasive.

On appeal, Appellants cite generally to a large portion of the notes of

testimony in the reproduced record. See Appellants’ Br. at 13 (referencing

parts of Cruz’s direct and redirect examination N.T., Cruz, at 4-16, and 61-

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J-A06031-17

68). From what we can glean from the notes of testimony, the trial court

overruled objections to Cruz’s testimony about what he paid Crespo and

what he would have paid Crespo if Crespo had not been injured because it

was within his general knowledge and did not require special expertise for

the jury to understand. See N.T., 2/4/2016, at 10-11. As a fact witness,

the court found that Cruz was “qualified and capable of making a

determination as to who he would and wouldn’t hire.” Id. at 9. Appellees

maintain that this testimony was factual in nature and limited to personal

observations. See Appellees’ Br. at 17. We agree. See Deeds, 110 A.3d

at 1018.

Further, Appellants’ reliance on Rule 4003.5 and Sindler to support

this argument is misplaced. After reviewing the record, it is clear that Cruz

testified regarding his personal relationship with Crespo. Moreover, Cruz did

not develop his opinions in anticipation of litigation. Accordingly, Appellants’

argument is without merit. We discern no abuse of the trial court’s

discretion.

4. Precluding Testimony regarding Pathology Report

In their fourth issue, Appellants contend that the court erred when it

precluded Dr. Lozano and Appellant Dr. Hughes from commenting on a

pathology report ordered by Dr. McClellan. See Appellants’ Br. at 22.

Appellants baldly assert that preclusion of this testimony caused significant

prejudice.

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J-A06031-17

However, Appellants’ post-trial motion preserved a singular issue

claiming that Dr. McClellan rendered an expert opinion without providing a

pre-trial report in violation of Pa.R.C.P. 4003.5. In the same issue,

Appellants alleged that the “court then compounded the error by prohibiting

[Appellant] Hughes as well as [Appellants’] expert, Dr. Lozano, from

addressing … the pathology report from Dr. McClellan’s surgery.” Post Trial

Motion, 2/22/2016, at 2. In ruling on the post-trial motion, the trial court

did not recognize or address the pathology report rulings as a separate

issue. Moreover, Appellants fail to cite relevant authority in support of their

claim. See Pa.R.A.P. 2118. Upon review of the record, we deem this issue

waived based on Appellants’ failure to preserve this as a separate issue in

their post-trial motion. See Diamond Reo Truck Co., 806 A.2d at 428.6
____________________________________________

6
Notwithstanding waiver, we discern no abuse of discretion. When Dr.
McClellan amputated Crespo’s fingers, he removed soft tissue and sent it to
a pathology department for analysis. See N.T., McClellan, 2/2/2016, 19.
The report revealed destruction of soft tissue and clumps of calcium. See
id. at 19, 37. In sustaining Appellees’ objection to Dr. Hughes testimony
regarding the pathology report, the court found that Appellees were not
patients of Dr. Hughes’ at the time of Dr. McClellan’s treatment. See N.T.,
Hughes, 2/3/2016, at 23-24; TCO at 19. The court found that Appellants
had failed to properly frame the question and lacked a proper foundation for
Dr. Hughes to comment on a pathology report prepared by another witness.
See TCO at 20 (noting, specifically, that Appellants “failed to establish that
Dr. Hughes had formed his opinions about the pathology report prior to
litigation”); see Pa.R.Civ.P. 4003.5. Appellants did not attempt to raise the
pathology report with Dr. Lozano until redirect examination. The court
sustained Appellees’ objection because the pathology report was beyond the
scope of direct or cross-examination. See N.T., Lozano, 2/8/2016, at 97-98.
Based upon the reasons stated by the court, we discern no abuse of
discretion. See Rettger, 991 A.2d at 923-24 (citing Harman, supra).

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5. Appellees’ Standard of Care Expert - Dr. Mosier

In their fifth issue, Appellants contend that the court erred in allowing

Appellees’ standard of care expert, Dr. Mosier, to testify outside of the scope

of his pretrial report. Appellants’ Br. at 28. According to Appellants, Dr.

Mosier added a new theory that was not contained in his pretrial report –

“namely that Dr. Hughes was negligent because he violated a Temple Policy

on the amount of calcium gluconate” to administer. Id. Once again,

Appellants rely on 4003.5(c), which states, in relevant part:

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. No. 4003.5(c).

The trial court found that Appellants had waived this issue by failing to

assert an objection to Dr. Mosier’s testimony covering the TUH policy. See

TCO at 21. Appellants lodged an objection to Dr. Mosier’s commentary

regarding his testimony about the policy to the extent it was not in his

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J-A06031-17

report.7 Over Appellants’ objection, Dr. Mosier testified that he reviewed

Appellants’ discovery responses, which included TUH’s policies, and that he

relied on the policies in forming his conclusions regarding the subject matter

of his report. See N.T., Mosier, 2/1/2016, at 18. Over Appellants’

objection, the court permitted Appellees to publish the TUH policies for the

jury. See id. at 19. Subsequently, Dr. Mosier stated his conclusion that

TUH personnel administered twice the amount of calcium gluconate as

stated in the TUH policies. See N.T., Mosier, 2/1/2016, at 20.

Upon review of the record, we deem this issue as properly preserved

at trial. Nevertheless, as noted by the trial court, because Dr. Mosier relied

upon the policies in reaching his conclusions, the trial court properly

overruled Appellants’ objections. See TCO at 21. We discern no abuse of

discretion. Accordingly, Appellants’ claim is without merit.

6. Appellants’ Psychiatric Expert, Dr. Toborowsky

In their sixth issue, Appellants contend that the court erred in limiting

the anticipated testimony of their psychiatric expert, Dr. Toborowsky. See

Appellants’ Br. at 26. According to Appellants, Crespo advised Dr.

Toborowsky that he had a number of psychological stressors that
____________________________________________

7
Appellees argue that there was no objection lodged on the record when
they introduced the policy and it was published to the jury. See Appellees’
Br. at 28-29. The record indicates that the defense objection did occur when
the proponent asked to publish the record; a sidebar discussion ensued and
the court overruled the objection. See N.T., Mosier, 2/1/2016, at 19.

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J-A06031-17

contributed to, inter alia, post-traumatic stress disorder and major

depressive disorder. Id. They maintain that the trial court’s limitation on

Dr. Toborowsky’s testimony led the jury to believe that “the only significant

stressor in Mr. Crespo’s life was the injury to his fingers [when] that was

[not] the sole cause of his mental state.” Id. at 27.

The trial court made a pre-trial ruling that precluded Dr. Toborowsky

from testifying about “Crespo’s history of molestation at the hands of his

uncle” before the jury. TCO at 23; see also N.T., Toborowsky, 2/9/2016, at

21. The court found that this abuse was: remote in time in comparison to

the loss of fingers; overly prejudicial due to the nature of the subject

matter; and far more prejudicial than probative. TCO at 24.8 We agree.

The court has broad discretion to exclude evidence where it finds that its

probative value is outweighed by unfair prejudice or needless presentation of

cumulative evidence. Brady, 80 A.3d at 484; see also Pa.R.E. 403.

Accordingly, the court did not abuse its discretion in limiting Dr.

Toborowsky’s testimony.

7. Cross-examination of Dr. Hughes

In their seventh issue, Appellants contend that the court erred in

____________________________________________

8
Further, the court opined that the evidence was unnecessarily cumulative,
finding Appellants sufficiently raised Crespo’s pre-existing psychological
stressors through other evidence. TCO at 24 (citing N.T., 2/3/2016, Terio,
at 19).

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J-A06031-17

permitting cross-examination of Appellant Dr. Hughes with scientific

literature from 2015, when the events in question occurred in 2011. See

Post Trial Motion, 2/22/2016, at 3; 1925(b) Statement at 1; Appellants’ Br.

at 23. According to Appellants, the article constituted hearsay and it was

erroneous for the court to permit Dr. Hughes to read the article into

evidence. Id. (citing in support Majdic v. Cincinnati Machine Co., 537

A.2d 334, 339 (Pa. Super. 1988) (en banc); Burton-Lister v. Siegel,

Sivitz and Lebed Assocs., 798 A.2d 231 (Pa. Super. 2002)).

The trial court found that Dr. Hughes’ testimony laid sufficient

foundation for authentication of the article as a treatise. According to the

court, it permitted “a judicious question from [Appellees] regarding the

content of the treatise on the topic of standard of care for treatment of

hydrofluoric acid exposure.” TCO at 19. Here, the record reflects that

questioning regarding the contents of the treatise was complemented by the

court overruling several of Appellants objections. Appellant Dr. Hughes was

cross-examined by Appellees regarding a 2015 medical publication called

“Up-to-Date.” The court overruled Appellants’ objection to Dr. Hughes

reading from the text of the article during cross-examination. See N.T.,

Hughes, 2/2/2016, at 42. The text stated that “Injection into the digits is

NOT recommended.” Id. The court allowed Appellees to offer the text into

evidence by asking Dr. Hughes to read directly from the article, including the

emphasis on capitalization of the word “not.” Id. The article stated an

opinion on the standard of care adverse to that held by Dr. Hughes.

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Instantly, we note that the trial court erroneously relied on the federal

standard of authentication of learned treatises.9 In this Commonwealth,

Pennsylvania Courts adhere to the common law rule as articulated by our

Supreme Court in Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000):

While other jurisdictions, including the federal courts, have
moved away from the common law exclusion in favor of an
exception permitting the admission of treatise materials as
substantive evidence on a limited basis, see, e.g., F.R.E.
803(18), Pennsylvania has not done so. See Pa.R.E. 803(18)
(providing that ‘Pennsylvania does not recognize an exception to
the hearsay rule for learned treatises’ (citing Majdic, 537 A.2d
at 334)).

Aldridge, 750 A.2d at 297.10 “As the appellate courts of this

____________________________________________

9
As Appellees observe, Dr. Hughes conceded that the publication “Up-to-
Date” probably contained information that he considered reasonably reliable.
N.T., Hughes, 2/2/2015, at 38, 43. However, the trial court’s ‘adequate
foundation’ reasoning applies to the hearsay exception for a learned treatise
found in the more liberal federal rules, which this Court and this
Commonwealth have expressly declined to adopt. See Majdic, 537 A.2d at
340; see, e.g., F.R.E. 803(18). “Our evidentiary rules … permit limited use
of treatises on cross-examination for impeachment, and this Court has not
foreclosed the possibility that there may be other valid, nonhearsay
purposes that may support the proffer of treatise materials.” Aldridge v.
Edmunds, 750 A.2d 292, 299 n.4 (Pa. 2000) (internal citations omitted);
see, e.g., Cummings v. Borough of Nazareth, 242 A.2d 460, 466 (Pa.
1968) (plurality opinion) (“It is entirely proper in examination and cross-
examination for counsel to call the witness’s attention to published works on
the matter which is the subject of the witness’s testimony.”).
10
See, e.g., Klein v. Aronchick, 85 A.3d 487, 501 (Pa. Super. 2014),
appeal denied, 85 A.3d 487 (Pa. 2014) (explaining the common law assumes
a lay jury may be confused by the technical nature of the information and
therefore place undue emphasis upon or misapply scientific information
contained in a learned treatise) (citing Aldridge, 750 A.2d at 296-97).

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J-A06031-17

Commonwealth have consistently noted, ‘[l]earned writings which are

offered to prove the truth of the matters therein are hearsay and may not

properly be admitted into evidence for consideration by the jury.’” Burton-

Lister, 798 A.2d at 239 (quoting Majdic, 537 A.2d at 339).

On cross-examination, a fact-witness may be questioned with respect

to any publication in the field that he considers generally reliable and the

evidence is admissible to challenge the witness’s credibility, but the writing

cannot be admitted for the truth of the matter asserted. Majdic, 537 A.2d

at 339.

Excerpts from a publication which are read into evidence for the
purpose of proving the truth of the statements contained therein
are still hearsay and, therefore, inadmissible. This fact is not
changed merely because the document is read into evidence by
the witness instead of being received as an exhibit for inspection
by the jury. It is the purpose for which the information is
offered, not the manner in which is introduced, which makes it
objectionable.

Id. at 340 (holding trial court did not err by prohibiting expert witness from

reading contents of treatises into evidence and by not admitting treatises

into evidence).

Upon a party’s request, the trial court shall issue appropriate limiting

instructions to ensure that the inadmissible hearsay does not come in for

substantive purposes and that the treatise does not become the focus of

cross. Aldridge, 750 A.2d at 297 (citing Pa.R.E. 105 (“When evidence

which is admissible as to one party or for one purpose but not admissible as

to another party or for another purpose is admitted, the court upon request

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J-A06031-17

shall, or on its own initiative may, restrict the evidence to its proper scope

and instruct the jury accordingly.”)). It remains to be determined, however,

“whether the [a]ppellants are entitled to a new trial, as an erroneous

evidentiary ruling will generally require reversal only if it caused prejudice.”

Aldridge, 750 A.2d at 298 (holding that erroneous admission of hearsay did

not prejudice results of trial so as to require reversal). A trial court’s failure

to limit the use of treatises effectively may constitute grounds for reversal

only if the issue was properly preserved at all stages of the proceedings and

prejudice can be established. See Klein, 85 A.3d at 505 (Pa. Super. 2014)

(Fitzgerald, J., concurring in part and dissenting in part) (citing Aldridge,

750 A.2d at 298).

In support of their argument, Appellants rely upon Burton-Lister, in

which this Court considered a litigant’s failure to make a specific objection to

the impermissible reading of an article and failure to request a specific

limiting instruction for the jury dispositive to preserving the issue on appeal.

Burton-Lister, 798 A.2d at 239-40. Similarly, Appellants failed to request

any instruction to limit the jury’s consideration of the treatise to the proper

purpose for impeachment of Dr. Hughes. See id. Accordingly, we deem

this matter waived and we need not reach the issue of prejudice. 11 Burton-
____________________________________________

11
Here, the parts of the text which Dr. Hughes read into evidence supported
Appellees’ theory that the manner or amount of injection ordered by Dr.
Hughes did not comport with the standard of care. Conversely, the text was
not used to clarify the basis for Dr. Hughes’ opinion, but rather as the means
(Footnote Continued Next Page)

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J-A06031-17

Lister, 798 A.2d at 239-40 (failure to make specific objection and request

limiting instructions rendered the issue waived); see also Aldridge, surpa.

8. Crimen falsi: Cross-Examination and Juror Instruction

In their eighth issue, Appellants contend that the trial court erred in

precluding cross-examination of Mr. Crespo with the transcript of his guilty

plea in 2013 to the charge of receiving stolen property (RSP). See

Appellants’ Br. at 17-18. Appellants maintain that the ruling was prejudicial

because Crespo “explain[ed] away the crime committed as one big

misunderstanding despite substantial evidence to the contrary.” Appellants’

Br. at 18. Further, Appellants maintain that the trial court’s refusal to give a

crimen falsi juror instruction was prejudicial.

In reviewing jury instructions, we must determine whether an

omission or inaccurate statement of law amounts to a fundamental error

controlling the outcome of the case. Tincher v. Omega Flex, Inc., 104

A.3d 328, 335 (Pa. 2014). “This Court will afford a new trial if an erroneous

jury instruction amounted to a fundamental error or the record is insufficient
_______________________
(Footnote Continued)

by which opinion evidence on the standard of care was impermissibly
conveyed to the jury to prove the truth of its contents. See, e.g., Klein v.
Aronchick, 85 A.3d 487, 504 (Pa. Super. 2014) (finding that trial court
abused its discretion in allowing appellees’ extensive cross-examination
concerning learned treatises and in admitting such impermissible hearsay
into evidence). Moreover, the trial court failed to assure, pursuant to
Aldridge and its progeny, that the use made of the publication was
“judicious” or “limited” in nature. Burton-Lister, 798 A.2d at 239 (quoting
Aldridge, 750 A.2d at 298).

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J-A06031-17

to determine whether the error affected the verdict.” Id.

Pennsylvania Rule of Evidence 609 governs impeachment of a

witness’s credibility with evidence of crimen falsi:

(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted
of a crime, whether by verdict or by plea of guilty or nolo
contendere must be admitted if it involved dishonesty or
false statement.

Pa.R.Evid. 609(a); see Russell v. Hubicz, 624 A.2d 175, 181-182 (Pa.

Super. 1993), appeal denied, 624 A.2d 175 (Pa. 1993) (noting that the rule

applies in both civil and criminal cases where the conviction or date of

imprisonment occurred within ten years of testimony) (quoting

Commonwealth v. Randall, 528 A.2d 1326, 1329 (Pa. 1987)). Receiving

stolen property is among the crimes involving dishonesty or a false

statement that are admissible for the purpose of impeaching any witness’s

credibility under Rule 609. Allen v. Kaplan, 653 A.2d 1249, 1253 (Pa.

Super. 1995) (citing Leonard Packel and Anne Poulin, Pennsylvania Evidence

§ 609 (1987 and Supp. 1994)).

On February 21, 2014, Appellee Crespo entered a negotiated guilty

plea to one count of receiving stolen property, arising out of his purchase of

a 2010 Mercedes-Benz C300 from a “chop shop” under circumstances where

Crespo knew or should have known that the vehicle was stolen. See

Commonwealth v. Crespo, 5264 C.R. 2013 (Dauphin Cty. CCP

2/21/2014), Transcript of Proceedings: Guilty Plea and Sentencing. At trial,

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J-A06031-17

Crespo testified about the RSP conviction on direct examination. See N.T.,

Crespo, 2/4/2016, at 35-36. However, the trial court precluded Appellants

from cross-examining Crespo regarding the circumstances surrounding his

conviction and from introducing the transcript from the guilty plea hearing.

The trial court reasoned that Crespo had acknowledged the circumstances on

direct. Further, the court found that the subject of cross “did not sound in

impeachment of Crespo’s truthfulness as a witness, but [rather] presented …

a collateral attack on a specific year of the wage-loss claim.” TCO at 17.12

This was clear error by the trial court. Here, Crespo’s 2014 conviction

for receiving stolen property is crimen falsi that is per se admissible under

Pa.R.Evid. 609. See Allen, 653 A.2d at 1253. Moreover, upon a party’s

request for a crimen falsi jury instruction following such evidence, the court

should instruct the jury regarding its relevancy and the use of which the jury

____________________________________________

12
It appears that the trial court and Appellants misconstrue the sentence
imposed subsequent to his conviction for receiving stolen property. See
TCO at 18 (noting that circumstances such as the duration of Crespo’s
incarceration “around one year” was irrelevant). According to Appellants,
Crespo “spent approximately one (1) year incarcerated at Graterford Prison.”
Appellants’ Br. at 17. Upon review of the record, Appellant was arrested on
September 9, 2013. His deposition took place at Graterford SCI on
December 23, 2013. In January 2014 upon consideration of Appellants’
motion for extraordinary relief from discovery deadlines, the court placed
this case on deferred status pending Appellant’s release. See Order,
1/31/2014. On February 21, 2014, Appellant pleaded guilty to receiving
stolen property and was sentenced to twelve months supervisory probation.
See Commonwealth v. Crespo, 5264 C.R. 2013 (Dauphin Cty. CCP
2/21/2014), N.T. at 6. The remaining charges were withdrawn. The exact
length of the duration of Crespo’s incarceration is uncertain or unknown.

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J-A06031-17

can make of it in determining the witness’s credibility. See

Commonwealth v. LaMassa, 532 A.2d 450, 452 (Pa. Super. 1987).

Despite the request for a crimen falsi instruction, the court refused to

instruct the jury as required, thus compounding the violation of Rule 609.

See N.T., Points for Charge, 2/9/2016, at 24-25; but see LaMassa, 532

A.2d at 452.

Clearly, Crespo’s testimony controlled the outcome of his claims for

damages. His testimony was instrumental in establishing not only his status

as a musician before the accident and his lost earning capacity after the

accident, but also the severity of his injury, i.e. his pain and suffering. Thus,

the court’s erroneous rulings directly and adversely impacted Appellants’

ability to challenge the credibility of Crespo’s damages claims. We must

determine whether Appellants are entitled to a new trial limited to damages.

Pennsylvania and most other jurisdictions have adopted a rule
permitting such limited new trials under certain specific
circumstances. A new trial limited to the issue of damages will
be granted where: (1) the issue of damages is not “intertwined”
with the issue of liability; and (2) where the issue of liability has
been “fairly determined” or is “free from doubt.”

Stapas v. Giant Eagle, 153 A.3d 353, 365 (Pa. Super. 2016) (quoting

Kiser v. Schulte, 648 A.2d 1, 8 (Pa. 1994) (internal citations omitted)).

This is not a case in which the issue of damages is intertwined with the

issue of liability and the issue of liability is free from doubt based on the

record. Kiser, 648 A.2d at 8. It is fair here to both parties to limit the new

trial to the specific issues of damages. See id. Accordingly, we reverse the

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J-A06031-17

damages awarded for Crespo’s noneconomic and wage loss claims, and

remand for a new trial limited to determining damages, permitting cross-

examination of Crespo regarding his prior conviction and juror instruction

regarding the impeaching effect of his prior conviction.13

9. Denial of Motion for Remittitur of Noneconomic Damages

Finally, Appellants contend that the trial court erred in denying their

motion for remittitur.

Our standard of review in reversing an order denying a remittitur
by a trial court is confined to determining whether there was an
abuse of discretion or an error of law committed in such denial.
…
The grant or refusal of a new trial because of the excessiveness
of the verdict is within the discretion of the trial court. This
[C]ourt will not find a verdict excessive unless it is so grossly
excessive as to shock our sense of justice. We begin with the
premise that large verdicts are not necessarily excessive
verdicts. Each case is unique and dependent on its own special
circumstances and a court should apply only those factors which
it finds to be relevant in determining whether or not the verdict
is excessive.

Tindall v. Friedman, 970 A.2d 1159, 1176-77 (Pa. Super. 2009),

reargument denied, (quoting Gbur v. Golio, 932 A.2d 203, 212 (Pa. Super.

2007), aff'd, 963 A.2d 443 (Pa. 2009) (internal citations omitted)).

____________________________________________

13
On remand, the court may balance the prejudicial effect of Crespo’s
incarceration with the relevance it has to his wage loss claim. See Pa.R.E.
403. Upon a party’s request for a special verdict pursuant to 42 Pa.R.C.P.
1042.71, the trier of fact shall make a determination with separate findings
the amount of past and future damages according to the formula provided
by 40 P.S. § 1303.509 (differentiating past damages for lost earnings and
future damages for loss of earning capacity).

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J-A06031-17

Moreover, this Court is reluctant to reverse a jury verdict that bears a

reasonable resemblance to the damages proven. McManamon v. Washko,

906 A.2d 1259, 1285 (Pa. Super. 2006), appeal denied, 906 A.2d 1259 (Pa.

2007).14

In addition, this Court has enumerated a number of factors to consider

when determining whether a jury’s verdict is excessive:

(1) the severity of the injury; (2) whether the plaintiff's injury is
manifested by objective physical evidence or whether it is only
revealed by the subjective testimony of the plaintiff ([e.g.]
where the injury is manifested by broken bones, disfigurement,
loss of consciousness, or other objective evidence, the courts
have counted this in favor of sustaining a verdict); (3) whether
the injury will affect the plaintiff permanently; (4) whether the
plaintiff can continue with his or her employment; (5) the size of
the plaintiff's out-of-pocket expenses; and (6) the amount
plaintiff demanded in the original complaint.

Gbur, 932 A.2d at 212 (internal citations omitted).

According to Appellants, the award of noneconomic damages was

excessive and must be remitted in accordance with Pa.R.C.P. 1042.72(c).

See Appellants’ Br. at 28-29 (stating that non-economic damages “deviate

substantially from what could be considered reasonable compensation and

are so excessive as to shock the conscience”). However, Pa.R.C.P. 1042.72
____________________________________________

14
“There are four items that make up a damage award for noneconomic
loss, both past and future: (1) pain and suffering; (2) embarrassment and
humiliation; (3) loss of ability to enjoy the pleasures of life; and (4)
disfigurement.” Pa.R.C.P. 223.3. Further, “Pennsylvania law allows
compensation for loss of life's pleasures as a component of pain and
suffering.” McManamon, 906 A.2d at 1281.

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J-A06031-17

was rescinded in its entirety effective immediately on October 17, 2012.

Accordingly, we find this claim waived for lack of proper development.

Nevertheless, we briefly note the following. Appellants allege that

there is no evidence that Appellee Torralvo suffered an injury. See

Appellants’ Br. at 29. To the contrary, as recognized by the trial court, the

jury considered substantial evidence of an injury. See TCO at 27-28. For

example, Torralvo testified that his right index finger was repeatedly injected

and that the injections caused his fingers to blister, change colors, and

experience significant pain and cold sensations. See id. (citing testimony).

The jury also saw photos of Torralvo’s finger, which depicted the black

portion of his finger that had to be surgically removed due to necrosis. See

id. The evidence established Torralvo had permanent disfigurement. Id.

Toralvo also complained of ongoing pain and difficulty in cutting his

fingernails to the jury. See N.T., Torralvo, 2/4/2016, at 49; N.T., McClellan,

2/2/2016, at 23-24. Accordingly, the court did not abuse its discretion in

determining that Torralvo’s award for pain and suffering was not so

excessive as to shock the conscience. See Gbur, surpa.15

Judgment affirmed in part relating to the damages awarded to

Torralvo, reversed in part, and remanded for a new trial to determine

Crespo’s noneconomic and economic damages. Jurisdiction relinquished.
____________________________________________

15
Because we are reversing and awarding a new trial with respect to
Crespo’s damages, we need not address this aspect of Appellants’ claim.

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J-A06031-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017

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