J-A28020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD R. KORNBERGER, : IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA
DONNA ZAPPASODI :
:
Appellant :
:
:
v. :
: No. 3407 EDA 2016
:
LEHIGH VALLEY HEALTH NETWORK, :
INC., LEHIGH VALLEY HOSPITAL, :
INC., SURGICAL SPECIALISTS OF :
THE LEHIGH VALLEY, MICHAEL :
BADELLINO, M.D., DALE DANLEBEN, :
M.D., JOHN J. HONG, M.D., DAN :
TAYLOR, CRNP, LAMA2DISSOLVING :
CO., INC., F/K/A LEHIGH AREA :
MEDICAL ASSOCIATES, P.C., LEHIGH :
VALLEY PHYSICIANS GROUP, :
AFFILIATED WITH THE LEHIGH :
VALLEY HEALTH NETWORK :
Appeal from the Judgment Entered December 13, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-1508
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 11, 2018
Edward Kornberger, as administrator for the estate of Donna Zappasodi
(“the Estate”), appeals from the judgment entered after a jury found that
Lehigh Valley Hospital (“LVH”) and other associated defendants had not
committed medical malpractice. The Estate believes a new trial is warranted
based upon four separate challenges to the trial court’s evidentiary rulings.
We affirm.
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Our standard of review is as follows: We reverse an order to deny a new
trial only when the trial court abused its discretion. See Paliometros v.
Loyola, 932 A.2d 128, 132 (Pa. Super. 2007). We review the decision to
determine whether the court erred. See id. If so, we must also determine
whether the error requires a new trial. See id. If the appellant asserts the
court committed an error of law, we will scrutinize for legal error. See id. We
review the court’s determination on prejudice for an abuse of discretion. See
id. “An 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.” Id.
(citations and quotation marks omitted).
Except where noted, the facts of this case are largely uncontested.
Zappasodi, then 60 years old, was treated at LVH for injuries arising from a
fall on May 7, 2012. Her medical history, in relevant part, included diverticulitis
and a reversed colostomy. She was discharged after receiving treatment.
The next day, she suffered another fall, and was again transported to
LVH, where she was diagnosed with significantly more serious injuries,
including pelvic and sacral fractures. (The sacrum is a large, triangular bone
at the base of the spine.) She was admitted to the hospital and placed in the
intensive care unit before being placed in the trauma transitional unit.
By May 10, hospital staff observed indications that Zappasodi was
suffering from either a bowel obstruction or an ileus. An ileus occurs when
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“the functioning of the bowel, particularly the small bowel, decreases to the
point that the normal squeezing motion that pushes fluid and food forward
[has] stopped.” N.T., Jury Trial, 4/26/16, at 201. Furthermore, tests indicated
possible pneumonia in Zappasodi’s right lung.
A nasogastric (“NG”) tube was inserted down Zappasodi’s esophagus to
evacuate the contents of her stomach and small bowel. Over 800 mL of fluid
was removed from her by the NG tube.
The next morning, the 12th, hospital staff observed indications that the
ileus had resolved. As a result, the NG tube was clamped, and Zappasodi was
given clear fluids by mouth. By that afternoon, staff had observed symptoms
indicating the ileus had not resolved. In response, a new set of scans were
performed.
The scans indicated no significant difference from the May 10th scans;
Zappasodi’s ileus had not resolved, and her right lung still showed symptoms
of possible pneumonia. Before 9 p.m., a nurse observed Zappasodi’s eyes roll
back into her head. Despite prolonged resuscitative efforts, Zappasodi passed
away at approximately 11 p.m.
At trial, the Estate argued that the defendants had breached their duty
of care on the 12th. Specifically, the Estate alleged that
[a] simple set of interventions, including physical examination,
discontinuation of oral feeding, assessment of the position and
patency of the NG tube, and re-institution of intermittent
suctioning through this tube, would have prevented these events.
The interventions, collectively, would have taken fewer than ten
minutes of medical attention by her providers, and, yet, despite
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progressive symptoms and concerns expressed not only by family
members but other members of her care team, she was never re-
assessed by the clinicians primarily charged with her care over the
course of May 12, 2012.
Expert Report of Peter F. Clardy, M.D., 12/4/15, at 9.
In contrast, the defendants asserted that Zappasodi’s death was not
caused by aspiration. Rather, the defendants presented an expert opinion that
Zappasodi died due to complications from the injuries sustained in her fall,
combined with pre-existing cardio-vascular disease. Thus, under defendants’
theory, any decisions regarding the treatment of Zappasodi’s ileus on May
12th did not contribute to her death.
The jury found no negligence on the part of the defendants. The trial
court denied the Estate’s post-trial motions, and this timely appeal followed.
The Estate first contends the trial court erred in precluding the expert
testimony of Marianne Hamel, M.D., Ph.D., who had performed the autopsy of
Zappasodi. When considering the admission of expert evidence, our standard
of review is very narrow:
The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound discretion
of the trial court. … [W]e 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.
Turney Media Fuel, Inc., v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa. Super.
1999) (internal citations omitted). See also Pa.R.E. 702 Comment.
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The trial court excluded Dr. Hamel’s expert testimony due to the Estate’s
failure to identify her as an expert or submit her expert report before the close
of discovery. The Estate does not dispute that it submitted Dr. Hamel’s report
after the deadline had passed or that it had failed to identify Dr. Hamel as an
expert it intended to call at trial. The Estate asserts it did not intend to call Dr.
Hamel until it received the defendants’ expert reports that asserted the ileus
did not cause Zappasodi’s death. The Estate argues the trial court’s preclusion
of Dr. Hamel’s expert testimony was an improper sanction under the
circumstances.
Pursuant to the rules of discovery, the proponent of an expert witness
is required to identify the expert in response to interrogatories and state the
substance of the expert’s facts and opinions in a signed report or answer. See
Pa.R.C.P. 4003.5(a)(1). The failure to comply with Rule 4003.5(a)(1)
generally results in the preclusion of the expert’s testimony. See Pa.R.C.P.
4003.5(b). “However, if the failure to disclose the identity of the witness is
the result of extenuating circumstances beyond the control of the defaulting
party, the court may grant a continuance or other appropriate relief.” Id.
Thus, exclusion of testimony is not a mandatory remedy. See Corrado v.
Thomas Jefferson University Hospital, 790 A.2d 1022, 1032 (Pa. Super.
2001).
“Rather, when a discovery violation occurs as a result of a failure to
identify an expert witness, the presiding court must balance the facts and
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circumstances of each case to determine prejudice to each party.” Id.
(internal quotation marks and citations omitted). Circumstances to consider
include: (1) the ability of the defaulting party to have discovered the witness
earlier; (2) the reasonableness of the excuse offered for the default; (3)
whether the defaulting party’s conduct was willful; (4) whether there was an
intent to mislead; (5) the prejudice suffered by the defaulting party if the
testimony is excluded; (6) the prejudice to the opposing party caused by the
default; (7) the ability to cure any prejudice to the opposing party; (8) the
impact of the default on the administration of the court’s docket; and (9)
whether the defaulting party acted in bad faith. See Curran v. Stradley,
Ronon, Stevens & Young, 521 A.2d 451, 457 (Pa. Super. 1987). See also
Corrado, 790 A.2d at 1032.
The Estate contends the trial court failed to consider the prejudice
exclusion would cause to the Estate’s case, and that it presumed prejudice to
the defendants. However, our review reveals the trial court considered all of
these factors and weighed them thoughtfully. See Trial Court Opinion,
9/30/16, at 10-14 (finding an absence of bad faith, but concluding the Estate
knew of Dr. Hamel since the case began, and had failed to identify her as an
expert witness due to “gamesmanship”). Furthermore, we find the court’s
reasoning does not constitute an abuse of discretion. Thus, the Estate’s first
argument on appeal merits no relief.
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Next, the Estate argues the trial court erred in precluding its use of
Nurse Dorothy Diehl’s deposition testimony to impeach her.1 The Estate
questioned Nurse Diehl at her deposition regarding her actions during the
evening of May 12, 2012. She acknowledged she became aware of gastric
distention possibly indicative of a small bowel obstruction. The Estate sought
to determine how she reacted to this knowledge:
Q. [] What did you conclude on seeing these x-ray
results?
A. I called the trauma resident.
Q. And were you concerned about the persistence of the
small bowel obstruction and distention as compared
to the 10th?
A. I just only called her on the x-ray results.
Q. What about the x-ray results were concerning to you?
A. What it says.
Q. Explain to me what caused you concern.
A. That she had gastric distention and small bowel
obstruction.
N.T., Deposition, 6/24/15, at 203-204.
In contrast, when the Estate asked Diehl at trial why she called the
trauma resident, she testified, “I was tying up loose ends.” N.T., Jury Trial,
____________________________________________
1There are indications in the record that Nurse Diehl’s full name is Dorothy
Diehl Scherer. However, all parties on appeal and the trial court refer to her
as Nurse Diehl. For the sake of consistency, we will also follow this convention.
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5/5/16, at 147. Counsel for the Estate asked if she remembered when she
was “asked that question at deposition[.]” Id. The trial court sustained
defense counsel’s unspecified objection to this question. See id.
The Estate argues it was entitled to cross-examine Diehl using her
deposition testimony. The trial court—without any citation or discussion of
authority on the issue—states that it “did not allow … questions which
improperly used the deposition testimony for impeachment.” Trial Court
Opinion, 9/30/16, at 27.
“Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of a deponent as a witness[.]”
Pa.R.C.P. 4020(a)(1). In the absence of a specific objection or any specific
discussion underlying the trial court’s decision to preclude the use of the
deposition testimony, we are unable to divine what about the use of the
deposition was improper. This ruling was an abuse of the trial court’s
discretion.
However, in order to gain relief on appeal, the Estate must also establish
that it suffered prejudice from this ruling. See Turney Media Fuel, Inc., 725
A.2d at 839. Unless an error of law controls the outcome of a case, we will not
reverse an order denying a new trial. See Lockley v. CSX Transp. Inc., 5
A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial and
not a perfect trial.” Id. at 392 (citation omitted).
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Here, we have no difficulty concluding this issue did not control the
outcome of the case; the trial court’s error was harmless. The Estate
presented the expert testimony of Dr. Clardy, a specialist in critical care
medicine, and a chair of medical education at Mount Auburn Hospital in
Cambridge, Massachusetts. Dr. Clardy opined on the standard of care
exercised by the defendants in this case. Nurse Diehl’s impressions, as a
treating nurse, would have been highly unlikely to sway a jury that rejected
Dr. Clardy’s opinion. Since the Estate cannot establish prejudice, its second
issue on appeal merits no relief.
In its third issue, the Estate argues the trial court erred by allowing a
defense expert to testify beyond the scope of his expert report. Defendants
presented the expert testimony of Jeffrey S. Young, M.D., M.B.A., on the issue
of standard of care.
In his initial pre-trial expert report, Dr. Young opined the “care provided
by the trauma team met the standard of care.” Expert Report of Jeffrey Young,
1/26/16, at 3. In a subsequent report, he opined “the film obtained on the
afternoon/early evening of the 12th did not appear significantly different than
the previous film, and had no indications for immediate intervention.” Expert
Report of Jeffrey Young, 4/11/16. He concluded “that Dr. Badellino, Dangleben
and Hong, along with CRNP Taylor all complied with the standard of care in
their treatment of Donna Zappasodi.” Id.
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Our Rules of Civil Procedure require an expert witness’s testimony be
limited to those topics that are contained within the fair scope of his expert
report. See Pa.R.C.P. 4003.5(c).
[I]n deciding whether an expert’s trial testimony is within the fair
scope of his report, the accent is on the word “fair.” The question
to be answered is whether, under the circumstances of the case,
the discrepancy between the expert’s pre-trial report and his trial
testimony is of a nature which would prevent the adversary from
preparing a meaningful response, or which would mislead the
adversary as to the nature of the appropriate response.
Bainhauer v. Lehigh Valley Hospital, 834 A.2d 1146, 1150-1151 (Pa.
Super. 2003) (citations and emphasis omitted). Rule 4003.5 is intended to
“prevent incomplete or ‘fudging’ of reports which would fail to reveal fully the
facts and opinions of the expert or his grounds therefore[.]” Pa.R.C.P. 4003.5
Comment.
The Estate’s arguments center on two portions of Dr. Young’s testimony
at trial. First, defense counsel asked Dr. Young to interpret a May 8, 2012 CT
scan of Zappasodi’s pelvis. The Estate objected, claiming this testimony was
beyond the scope of Dr. Young’s expert report. We disagree. Dr. Young’s April
11th report indicates he reviewed Zappasodi’s scans from this incident. And
he opined that the May 12th scan did not reveal any significant differences
from prior scans.
The Estate highlights his testimony that the May 8th scans contained
ambiguous and “confusing” clinical presentations. This testimony is within the
fair scope of Dr. Young’s April 11th report. Dr. Young opined in his report that
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the May 12th scan of Zappasodi “did not appear significantly different than
the previous film.” Thus, the Estate was on notice that Dr. Young would
address the results of previous scans. This argument merits no relief.
The second sub-issue concerns Dr. Young’s testimony that Kelly
McGuire, D.O.’s reading of the May 12th scans did not violate the standard of
care. The Estate contends this was outside the fair scope of Dr. Young’s expert
reports, as he never explicitly mentioned Dr. McGuire despite naming several
other doctors. We agree with the trial court’s conclusion that Dr. Young’s use
of the term “trauma team” should have alerted the Estate to Dr. Young’s
intentions. This claim merits no relief.
Lastly, the Estate argues the court erred in admitting evidence of habit.
Evidence of a person’s habit … may be admitted to prove that on
a particular occasion the person … acted in accordance with the
habit. Habit connotes one’s conduct in a precise factual context,
and frequently involves mundane matters …. To establish a habit
or custom, a party must prove behavior approaching fixed
regularity. [W]hether evidence of such usage or habit is
admissible to show what occurred in a specific instance depends
on the invariable regularity of the usage or habit. To be
admissible, the usage must have sufficient regularity to make it
probable that it would be carried out in every instance or in most
instances.
Sutch v. Roxborough Memorial Hospital, 151 A.3d 241, 251-252 (Pa.
Super. 2016) (internal citations, parenthesis, and quotation marks omitted).
The Estate takes issue with the testimony of registered respiratory
therapist Matthew Reis. Reis’s videotaped testimony was played to the jury.
The Estate focuses on Reis’s interpretation of his clinical note from the
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resuscitation of Zappasodi in the evening of May 12th. The note indicates that
Zappasodi was “status post code on floor with positive aspiration[.]” N.T.,
Deposition, 2/9/16, at 48. Reis testified this “means that they aspirated at
some point.” Id., at 49.
He then stated, “[s]o in this instance how I wrote it, I would take this
as they coded and then aspirated during the code.” Id., at 50. The Estate did
not object to this testimony.
The Estate did object to this next question: “The way you wrote it you
think it meant that she – you were told she had aspirated and then – that she
coded and then aspirated?” Id. However, this objection was based upon the
leading nature of the question, not that it called for speculation. See id.
Then defense counsel asked: “Mr. Reis, if you had been told that the
patient had coded as a result of aspiration, what would you have written?”
Id., at 51. The Estate objected, asserting that the question called for
speculation. Id. Reis answered, “I would write code due to aspiration or
respiratory arrest.” Id., at 52.
When the video was played at trial, the Estate requested Reis’s answer
be stricken as improper evidence of habit. We agree with the trial court that
the foundation for this evidence of habit was laid by the Estate’s earlier
questioning of Reis:
Q. … Do you agree in those circumstances it’s very
important to chart accurately information that you obtain?
A. Yes.
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Q. And will you agree with me that you had a habit of
charting carefully and accurately?
A. Yes.
…
Q. And do you agree that you expect that other
caregivers will rely on your charting to determine care
needs and to determine outcomes?
A. Yes.
Id., at 28 (emphasis supplied). Thus, the trial court did not abuse its discretion
in admitting Reis’s answer as evidence of habit. The Estate’s final issue on
appeal merits no relief.
As we conclude none of the Estate’s issues on appeal merit relief, we
affirm the judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/18
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