Krolikowski, M. v. Ethicon Womens' Health

J-A17023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MALGORZATA KROLIKOWSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ETHICON WOMENS’ HEALTH AND : No. 2025 EDA 2019
UROLOGY A DIV. OF ETHICON, INC., :
ETHICON, INC., JOHNSON & :
JOHNSON, GYNECARE, SECANT :
MEDICAL, SECANT MEDICAL INC., :
PRODESCO, INC., AND SECANT :
MEDICAL LLC., :

Appeal from the Judgment Entered June 7, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 140102704

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 11, 2020

Malgorzata Krolikowski (Appellant) appeals from the judgment entered

in the Philadelphia County Court of Common Pleas in favor of Ethicon Womens’

Health and Urology a Div. of Ethicon, Inc., Ethicon, Inc., Johnson & Johnson,

Gynecare, Secant Medical, Secant Medical Inc., Prodesco, Inc., and Secant

Medical LLC (collectively Appellees). A jury found Appellant did not prove she

was entitled to damages for the negligent design, manufacture, and marketing

of the Gynecare TVT-Secur pelvic mesh implant (pelvic mesh implant). On

appeal, she contends the trial court abused its discretion when it permitted

one of her treating physicians to offer an expert opinion when the physician
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was not qualified as an expert before or during trial. For the reasons below,

we affirm.

The relevant facts underlying Appellant’s claim are as follows. In 2008,

at the age of 43, Appellant began experiencing stress urinary incontinence,

which is “mainly leakage at laughing, coughing and sneezing,” and urge-

related leakage. N.T., 4/5/19 (AM), at 17, 22; N.T., 4/8/19 (PM I), at 21.

She was referred to Dr. Matthew Fagan, a urogynecologist, who recommended

surgery. N.T., 4/5/19 (AM), at 25-26; Fagan’s Combined Deposition, 4/2/19,

at 6. On November 4, 2008, Appellant was implanted with the pelvic mesh

device, described as a “mid-urethral mesh sling.” Fagan’s Combined

Deposition at 12, 22. Dr. Fagan’s medical records for a follow-up

appointment, in February of 2009, stated that Appellant reported her “urgency

went away,” and she was “overall 80 percent better with stress urinary

incontinence.”1 Id. at 21.

In 2010, Appellant began experiencing heavy bleeding due to fibroids,

and pain during intercourse (dyspareunia). N.T., 4/5/19 (AM), at 36-38, 66.

In 2011, she underwent a uterine embolization procedure to correct the

bleeding caused by her fibroids. Id. at 43-44, 52. After seeing an ad about

mesh implant complications in 2013, Appellant visited several doctors

complaining of continued urinary leakage, which she described as worse than
____________________________________________

1 At trial, Appellant testified that she did not recall telling Dr. Fagan she was
“80 percent better” because she was still having symptoms, and she “wasn’t
happy.” N.T., 4/5/19 (AM), at 35.

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it was before the 2008 implantation of the pelvic mesh device. Id. at 54, 58-

59, 65. One of those doctors was urogynecologist Dr. Lily Arya, whom

Appellant saw twice, on July 20 and August 10, 2015. In 2015, Appellant also

began experiencing urinary leakage during intercourse. Id. at 47-48.

On January 28, 2014, Appellant filed a complaint against Appellees,

asserting claims of strict products liability and negligence. The case proceeded

to a jury trial commencing in March of 2019. Both parties presented expert

witnesses, who offered opinions as to the causation. Appellant’s sole claim on

appeal concerns the videotaped deposition testimony of Dr. Arya. Dr. Arya

was not designated as an expert witness, but rather, testified as one of

Appellant’s treating physicians. After Dr. Arya reviewed her findings and

recommendations for Appellant based upon her medical notes, the following

exchange occurred:

[Appellees’ counsel]: And so at this point in your assessment of
[Appellant], did you feel that she was experiencing any
complications associated with her sling?

[Dr. Arya]: So the sling was not working. That’s a failure, but I
wouldn’t call that a complication. I call — the term that I use is
— recurrent stress urinary incontinence. Any surgical procedure
may not work.

So this is a failure of her sling. I wouldn’t call it a
complication of her sling.

Arya’s Combined Deposition, 4/2/19, at 57.

Before the videotaped deposition was played for the jury, Appellant

objected to this exchange as “improper expert opinion testimony,” noting

“[t]hese treating physicians are called to give opinions that are specific to the

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client and their care and treatment of them, and this extends beyond that.”

N.T., 3/22/19, at 103, 105. Appellant’s argument continued as follows:

[Appellant’s counsel]: . . . The problem that I have is where
we get into this “failure” versus “complication” thing. Like those
words are very important words in this case. And what the jury
understands a failure to mean versus what the jury understands
complication to mean, it’s going to go into their determination of
whether or not this product was defective.

THE COURT: Well, I mean, so you have the mesh implanted
and now you’re incontinent and you weren’t before, that’s a
complication. You have the mesh implanted in order to resolve
incontinence and it doesn’t work, that’s a failure.

What’s so difficult about — am I wrong about that?

[Appellant’s counsel]: I don’t want to say that you’re wrong,
Your Honor, but I think it’s a little more complicated than that
actually, because they put the sling in to treat stress urinary
incontinence.

THE COURT: Okay.

[Appellant’s counsel]: So when a woman leaks, you put the
sling in to treat it. If it doesn’t work, yes, you could call that a
failure.

THE COURT: It failed.

[Appellant’s counsel]: You could call that a failure, but the
problem with calling it a failure is the defense is going to get up
and argue to the jury — as it is their right to do — that sometimes
medical devices just don’t work and that just happens and that
doesn’t mean that the device is defective.

[Appellees’ counsel]: That’s right.

[Appellant’s counsel]: But we’re arguing that the failure
rates that they knew about and that they were seeing, the
extremely high failure rates as soon as they put the device on the
market in this case, failure equals defect. Because if it fails in
every single woman that you put it in —

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THE COURT: You’re just going to have to argue that to the
jury. I overrule the objection.

[Appellant’s counsel]: Fair enough, Your Honor.

Would Your Honor just consider redacting that one
sentence: “Any surgical procedure may not work,” because it’s
not specific to [Appellant] and it’s an overly broad statement
about surgical procedures not working and —

THE COURT: No. I think that explains the meaning of the
word “failure[.]” . . .

Id. at 109-11.

The jury trial lasted more than three weeks. On April 17, 2019, the jury

returned a verdict for Appellees. Specifically, the jury concluded Appellant

proved Appellees “negligently designed, marketed, or sold” the device, but

that “the negligent design, marketing or sale” of the device was not “a factual

cause of her injuries[.]” Verdict Sheet, 4/17/19, at Questions 4, 5.2 Appellant

filed a timely post-trial motion, which was denied following argument on June

4, 2019. That same day, the trial court entered judgment on the verdict. This

timely appeal followed.3

Appellant raises one issue on appeal:

Did the trial court abuse its discretion by permitting Dr. Arya, one
of [Appellant’s] treating physicians, to offer an expert opinion on
causation when (a) [Appellees] did not designate Dr. Arya as an
____________________________________________

2 The jury also concluded Appellant failed to prove the pelvic mesh device
“contained a design defect that rendered it unreasonably dangerous.” Verdict
Sheet at Question 1.

3On July 11, 2019, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied with the court’s directive, and filed a concise statement on July 23,
2019. Thereafter, the trial court filed an opinion on August 6, 2019.

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expert witness; (b) [Appellees] did not qualify Dr. Arya as an
expert witness during trial; and (c) Dr. Arya had no recollection of
[Appellant] as a patient and expressed her causation opinion for
the first time in the deposition played to the jury?

Appellant’s Brief at 3.

We review a trial court’s evidentiary rulings, including the admission or

exclusion of testimony from an expert witness, for an abuse of discretion.

Crespo v. Hughes, 167 A.3d 168, 181 (Pa. Super. 2017) (citations omitted).

An abuse of discretion may not be found simply because an
appellate court might have reached a different conclusion than the
trial court; rather, to constitute an abuse of discretion, the trial
court ruling must be the product of “manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.”

Polett v. Public Communications, Inc., 126 A.3d 895, 924 (Pa. 2015)

(citations omitted). Moreover,

an appellate court is not to make a first-hand assessment of that
evidence as if it were the trial court, but rather is to confine its
review to the question of whether, in light of that evidence, the
trial court’s ruling was manifest[ly] unreasonable, or so lacking in
support as to be “clearly erroneous.”

Id. at 924-25. Furthermore, even if we determine the trial court’s evidentiary

ruling was an abuse of discretion, the error “does not warrant a new trial

unless it was ‘harmful or prejudicial to the complaining party.’” Flenke v.

Huntington, 111 A.3d 1197, 1200 (Pa. Super. 2015) (citation omitted).

Pennsylvania Rule of Civil Procedure 4003.5 requires litigants to disclose

the identity and opinions of their proposed expert witnesses to the other party

during discovery. See Pa.R.C.P. 4003.5. The Rule further provides “[a]n

expert witness whose identity is not disclosed in compliance with . . . this rule

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shall not be permitted to testify on behalf of the defaulting party at the trial

of the action.” Pa.R.C.P. 4003.5(b). “It is clear that the purpose of Rule

4003.5 is to prevent surprise.” Miller v. Brass Rail Tavern, 664 A.2d 525,

530 n.3 (Pa. 1995).

Moreover, when a litigant presents an expert witness at trial, they must

first establish the expert’s qualifications pursuant to the Pennsylvania Rules of

Evidence. See Pa.R.E. 702(a)-(c) (to qualify an expert witness, litigant must

establish “(a) the expert’s scientific, technical, or other specialized knowledge

is beyond that possessed by the average layperson; (b) [that] 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”). However, pursuant to Pennsylvania Rule of Evidence 701, a lay

witness may offer “testimony in the form of an opinion” if the testimony 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)-(c).

The dichotomy of these rules comes into play where, as here, a plaintiff’s

treating physician, who is not designated or qualified as an expert witness,

provides an opinion concerning the cause of the plaintiff’s injuries. In this

situation, critical questions arise as to whether (1) the physician’s opinion “was

‘acquired or developed in anticipation of litigation or for trial’” pursuant to Rule

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4003.5, and (2) the opinion is “rationally based on the [physician’s]

perceptions and helpful to a clear understanding of [their] testimony”

pursuant to Rule 701. Polett, 126 A.3d at 924 (citation omitted); Crespo,

167 A.3d at 182 (citations omitted).

On appeal, Appellant contends the trial court abused its discretion when

it permitted Dr. Arya to provide “an expert opinion on the cause of

[Appellant’s] urinary and sexual dysfunction,” when Dr. Arya was neither

identified as an expert witness before trial, nor qualified as an expert during

trial. Appellant’s Brief at 25, 26-27, 29. Preliminarily, however, we must

address Appellees’ claim that this argument is waived because it presents “an

entirely different theory than the one [Appellant] advanced pre-trial[.]”

Appellees’ Brief at 28. See Pa.R.E. 103(a)(1)(A)-(B) (in order to raise

evidentiary error on appeal, during trial, affected party must “make[ ] a timely

objection . . . and state[ ] the specific ground[.]”); McManamon v. Washko,

906 A.2d 1259, 1274 (Pa. Super. 2006) (“In order to preserve an issue for

appellate review, a party must make a timely and specific objection at the

appropriate stage of the proceedings before the trial court.”) (citation

omitted).

Specifically, Appellees contend the objection Appellant raised pre-trial

“was that Dr. Arya offered an impermissible expert opinion on the issue of

defect, because her theory of the case at the time was that ‘failure equals

defect.’” Appellees’ Brief at 28. However, they claim the issue on appeal is

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different, as Appellant now asserts Dr. Arya offered an improper opinion “on

the cause of [Appellant’s] injuries.” Id. (citation omitted).

In her reply brief, Appellant insists she did not waive her present claim.

Appellant’s Reply Brief at 1. We agree. Before raising the objection to Dr.

Arya’s deposition testimony, Appellant’s counsel stated: “Sticking with the

same category of objections, the improper expert opinion testimony, I’m

moving on to Dr. Arya’s deposition.” N.T., 3/22/19 (P.M. session), at 103

(emphasis supplied). Furthermore, counsel’s argument focused solely on the

causation question and answer at issue herein. See id. at 103-11. While we

agree counsel did not reference Pa.R.C.P. 4003.5 or Pa.R.E. 701, we conclude

the objection sufficiently preserved the issue on appeal. Thus, we decline to

find waiver.

Turning to Appellant’s argument, she insists Dr. Arya’s testimony

concerning the causation of her injuries constituted improper expert

testimony. Because the testimony “implicated [Dr. Arya’s] expertise as a

urogynecologist to explain the cause of [Appellant’s] urinary conditions, not

her factual perception of [Appellant],” Appellant insists the testimony cannot

be considered a lay opinion pursuant to Rule 701. Id. at 26. Indeed,

Appellant asserts Dr. Arya’s opinion testimony should have been excluded for

the following three reasons: (1) Dr. Arya was not identified as an expert

before trial, and did not provide an expert report pursuant to Pa.R.C.P.

4003.5; (2) Appellees did not attempt to qualify Dr. Arya as an expert witness

at trial pursuant to Pa.R.E. 702; and (3) Dr. Arya’s opinion on causation was

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“not formed during her care and treatment of” Appellant. Id. at 26-27, 29.

Appellant also argues the admission of this improper testimony prejudiced

her. She maintains Appellees “significantly emphasized Dr. Arya’s opinion

testimony” during closing arguments, and “[i]n the end, the jury decided the

case on exactly the point where Dr. Arya’s expert opinion was directed” —

that Appellees’ negligence did not cause Appellant’s injuries. Id. at 30-31.

Accordingly, Appellant insists she is entitled to a new trial.

The trial court concluded, however, that “Dr. Arya’s testimony was

admissible both as opinion or non-opinion testimony.” Trial Ct. Op., 8/6/19,

at 3. First, the court noted it was “hard-pressed to believe . . . Dr. Arya’s

statement is an opinion at all, let alone an inadmissible expert opinion.” Id.

at 5. Focusing on Dr. Arya’s comment that “failure is not a complication,” the

trial court found the statement “does not require any specialized expert

knowledge,” and was merely a “common sense” distinction. Id. Indeed, the

court commented that one need not be “an expert to tell the difference

between a failure and a complication.” Id.

Appellant maintains this explanation “misses the mark.” Appellant’s

Brief at 33. She argues that, when considered in context, Dr. Arya’s answer

constituted an opinion as to the cause of Appellant’s injuries. Id. We agree.

As Appellant emphasizes, the question posed to Dr. Arya was: “And so at this

point in your assessment of [Appellant], did you feel that she was experiencing

any complications associated with her sling?” Arya Combined Deposition at

57. That question clearly called for Dr. Arya’s assessment as to whether the

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sling “caused” Appellant’s injuries. This is confirmed by Dr. Arya’s answer,

“[T]he sling was not working. That’s a failure, but I wouldn’t call that a

complication.” Id. Accordingly, we agree that, considered in context, the

question posed to Dr. Arya, as well as her response, called for her opinion

regarding the cause of Appellant’s injuries.

Nevertheless, the court further found that even if Dr. Arya’s testimony

were an opinion, it was admissible as non-expert, lay opinion testimony. The

court opined:

The pivotal question the Court must ask is whether Dr. Arya’s
statement was developed in anticipation of litigation, or rather
during her course of care and treatment of [Appellant]. Dr. Arya’s
testimony was based entirely on her medical notes taken during
her care for [Appellant]. In discussing Dr. Arya’s testimony,
[Appellant] defeated her own argument when she stated during
[her] motion in limine to exclude the relevant testimony, “So,
again, I concede that we’re talking about care and treatment of
[Appellant].” N.T. 3/22/19 PM, [at] 104-105. Further, the
question specifically posed to Dr. Arya that brought about the
testimony at issue, was: “At this point in your assessment of
[Appellant], did you feel that she was experiencing any
complications associated with her sling?” Arya [Combined]
Deposition [ ] at 57. The very question situates the testimony as
part of Dr. Arya’s course of treatment, rather than a made-for-
litigation opinion. This opinion was known and clearly formed in
the course and treatment of [Appellant], and therefore it is
admissible under Rule 4003.5 and [Polett].

Under Rule 701, Dr. Arya was not testifying as an expert as
she was not qualified before the Court, but was testifying as a
treating physician. Dr. Arya’s testimony was rationally based on
her perception during her care and treatment of [Appellant]; the
opinion was helpful to determine a fact in issue; and the testimony
was not based on scientific, technical, or other specialized
knowledge. Therefore, the testimony was admissible lay opinion.

Trial Ct. Op. at 6-7.

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Upon our review of the record and the relevant case law, we detect no

abuse of discretion in the trial court’s decision to admit the testimony at issue.

See Crespo, 167 A.3d at 181. The Pennsylvania Supreme Court’s decision in

Polett is instructive. In that case, the plaintiff underwent successful double

knee replacement surgery in June of 2006. Polett, 126 A.3d at 899. Two

months later, the plaintiff agreed to appear in a promotional video for the

manufacturer of the artificial knees. Id. at 900. On the day of the shoot, the

plaintiff was first filmed being examined by her physician. Id. Later that day,

she learned the crew intended to film her riding a stationary bike. Id.

Although she was concerned about riding the bike, the plaintiff assumed the

film crew had consulted with her physician, so she proceeded to do so. Id.

The plaintiff began to experience “discomfort and pain” as she was driving

home after the film shoot. Id. Over time, her condition worsened to the point

where the “tendons around [her kneecap] pulled apart causing her to, on

occasion, lose her balance and fall.” Id. at 901. The plaintiff subsequently

underwent additional surgeries, which left her with “diminished mobility.” Id.

at 901-02.

The plaintiff filed an action against the manufacturer of her artificial

knees and the film crew of the promotional video, asserting they “were

negligent in having her ride the exercise bike during the filming of the video

without first determining whether she was medically cleared to do so.” Polett,

126 A.3d at 903. Prior to trial, the defendants presented a motion in limine

seeking to preclude the plaintiff’s treating physician from offering his opinion

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as to the cause of the plaintiff’s injuries because the physician did not prepare

an expert report pursuant to Pa.R.C.P. 4003.5. Id. at 903-04. The court

denied the motion “on the grounds that [the physician] was not a witness who

was retained in anticipation of litigation; rather, in the court’s view, [the

physician] formed his opinions as to causation . . . during the course of his

treatment relationship with” the plaintiff. Id. at 904. The jury returned a

$26.6 million dollar verdict for the plaintiff, although it did find her 30%

comparatively negligent. Id. at 906. On appeal, this Court vacated the

judgment and granted a new trial, concluding, inter alia, that the trial court

erred in permitting the physician to “testify as an expert witness.” Id.

The Supreme Court disagreed. In considering whether the testimony

was proper, the Court explained:

[T]he [plaintiff] did not hire or retain [the physician] as an expert
for the purpose of rendering an expert opinion at trial; thus, the
pivotal question under Rule 4003.5, as contested by the parties,
was whether his opinion as to causation of [the plaintiff’s]
injuries was “acquired or developed in anticipation of
litigation or for trial.”

Polett, 126 A.3d at 924 (emphases added), quoting Pa.R.C.P. 4003.5. In

making this determination, the Supreme Court recognized that “the point in

time at which [the physician] first came to his conclusion that the bicycle ride

during the exercise video was the triggering event which caused [the

plaintiff’s] medical condition . . . which, in turn, led to [her] subsequent

medical problems, is dispositive of this question.” Id.

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The Supreme Court emphasized that the trial court found that the

physician’s treatment notes from 2006 reflected his determination, at that

time, that the stationary bike ride caused the plaintiff’s subsequent injuries.

Polett, 126 A.3d at 924. Furthermore, the Supreme Court concluded the

Superior Court panel erred when it conducted its own de novo interpretation

of the treatment notes, determining the notes reflected “only ‘a temporal

connection’” between the bike ride and the plaintiff’s injuries. Id. (citation

omitted). Indeed, the Supreme Court held:

[T]he trial court’s understanding of the meaning of those notes,
as reflecting [the physician’s] contemporaneous impression as to
the cause of [the plaintiff’s] medical difficulties, was neither
manifestly unreasonable nor clearly erroneous, but, rather, was a
rational interpretation supported by the evidence of record.

Id. at 925. Furthermore, the Court rejected the defendants’ claim that they

were “unfairly surprised” by the physician’s testimony — the defendants “had

full access to [the physician’s] treatment notes, and critically, had participated

in his deposition.” Id. at 927.

Here, the trial court determined that Dr. Arya’s “opinion” — that

Appellant’s injuries were not attributable to complications from her pelvic

mesh implant — was formed during the course of her treatment of Appellant,

and not in anticipation of litigation. Trial Ct. Op. at 6. Indeed, the question

posed to Dr. Arya, which prompted the objectionable response, was “[A]t this

point in your assessment of [Appellant], did you feel that she was

experiencing any complications associated with her sling?” Arya Combined

Deposition at 57 (emphasis added). As the trial court opined, “[t]he very

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question situates the testimony as part of Dr. Arya’s course of treatment,

rather than a made-for-litigation opinion.” Trial Ct. Op. at 6. Like the

Supreme Court in Polett, we conclude the trial court’s interpretation of the

context of Dr. Arya’s opinion testimony, “was neither unreasonable nor clearly

erroneous[.]” See Polett, 126 A.3d at 925.

Appellant insists, however, that Polett is distinguishable from the case

sub judice because in Polett: (1) the objecting party was notified the treating

physician would be called as both a fact witness and an expert witness at

trial (despite not having provided an expert report), and (2) the physician’s

“expert opinion [was] developed during treatment and memorialized in the

plaintiff’s medical records.” Appellant’s Brief at 14-15. Here, Appellant

maintains, Appellees never identified Dr. Arya as an expert to the jury so that

“the jury had no basis for distinguishing Dr. Arya’s expert testimony from her

fact testimony.” Id. at 29. Moreover, she argues Dr. Arya’s treatment notes

contained no suggestion of a causal relationship, nor lack thereof, between

Appellant’s medical issues and her pelvic implant. Id. at 27-28. Rather,

Appellant maintains Dr. Arya’s testimony revealed the doctor did not recall

Appellant as a patient, and was unaware of much of her medical history. Id.

Nevertheless, Appellant contends “Dr. Arya expressed a significant and

unqualified opinion that [the pelvic mesh device] had not caused [Appellant]

any complications, [but] has simply failed, which was a surgically and

medically acceptable outcome.” Id. at 28.

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Appellant’s argument fails for several reasons. First, the Polett Court

placed no emphasis on the fact that the treating physician was qualified as an

expert at trial. Rather, the Court focused on the fact that the physician’s

causation opinion was formed during the course of treatment, rather than in

anticipation of litigation. See Polett, 126 A.3d at 924-26. See also Crespo,

167 A.3d at 182 (concluding treating physician was “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 [the plaintiff];” question posed to physician asked him to clarify

“his own notes”).

We also disagree with Appellant’s contention that Dr. Arya’s “opinion”

was not developed during her treatment of Appellant and memorialized in her

medical notes. As noted above, the question posed to Dr. Arya explicitly

directed her to state if — at time she completed her assessment of Appellant

— she believed Appellant was experiencing complications as a result of her

pelvic mesh implant. See Arya’s Combined Deposition at 57. Thus, her

opinion was necessarily formed during her treatment of Appellant. Nor do we

find it significant that Dr. Arya did not specifically recall Appellant as a patient.

The physician’s treatment notes from Appellant’s second visit on August 10,

2015, indicated, inter alia:

Urge and stress incontinence
Prior failed mini-sling by Dr. Fagan
Not keen on repeat sling for now

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Arya’s Progress Notes, 8/10/15 (emphasis added). Therefore, the fact that

Dr. Arya believed Appellant’s continuing medical issues were the result of a

“failed” implant rather than complications resulting from the implant can be

reasonably deduced from her medical records. Appellant’s additional

argument that Dr. Arya was unaware of the “significant aggravation of her

urinary symptoms after” the implant, goes to the weight of Dr. Arya’s

testimony, not its admissibility. See Appellant’s Brief at 27.

Lastly, focusing on the third prong of Rule 701, Appellant argues Dr.

Arya’s testimony was improper because “[u]nder Pennsylvania law, ‘[i]t is

generally accepted that the cause and effect of a physical condition lies in a

field of knowledge in which only a medical expert can give a competent

opinion.’” Appellant’s Brief at 25, quoting Risperdal Litigation W.C. v.

Janssen Pharmaceuticals, Inc., 174 A.3d 1110, 1121 (Pa. Super. 2017).

Because Dr. Arya’s “causation testimony implicated her expertise as a

urogynecologist to explain the cause of [Appellant’s] urinary conditions, not

her factual perception of [Appellant,]” Appellant insists the testimony “cannot

be understood as lay opinion[.]” Id. at 26. Again, we disagree.

In W.C., the minor plaintiff was prescribed Risperdal for the treatment

of attention deficit disorder, and later developed “unexplained weight gain and

gynecomastia,” which is defined as “excessive development of the breast in

the male.” W.C., 174 A.3d at 1114 & n.3. The minor plaintiff filed a complaint

against the drug manufacturer as part of a mass tort program. Id. at 114 &

n.4. At trial, over the minor plaintiff’s objection, the trial court permitted a

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physician assistant, who had treated the plaintiff and was not identified as an

expert witness before or during trial, to offer the following opinion on the

cause of the minor plaintiff’s chest growth:

[Manufacturer’s Counsel]: And all of those weights we just
reviewed were after Risperdal use had discontinued, correct?

[Physician Assistant]: Yes, correct.

[Manufacturer’s Counsel: D]o you plan to offer any opinion as to
— if indeed [the minor plaintiff] has chest growth, do you plan
to offer any opinion as to the cause of that chest growth?

[Physician Assistant]: The extreme weight gain, I would say.

[Manufacturer’s Counsel]: And what is the basis for that opinion?

[Physician’s Assistant]: Because he hasn’t been on Risperdal
since, we said, '07, so if he was taken off the Risperdal, the
prolactin would have returned to normal.

Id. at 1121 (citation, footnote, and some emphasis omitted). The jury

returned a verdict for the manufacturer, concluding that although the

manufacturer was negligent in failing to provide an adequate warning

concerning the risk of gynecomastia, the manufacturer’s negligence did not

cause the minor plaintiff’s gynecomastia. Id. at 1116.

On appeal, this Court concluded that the physician assistant’s opinion

testimony was improper:

[The physician assistant] was required to draw upon specialized
medical knowledge concerning causation in order to opine that
[the minor plaintiff’s] breast growth was caused by weight gain.
The effect of Risperdal on a hormone such as prolactin is clearly a
subject that requires specialized knowledge. This testimony
clearly required the use of “scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Pa.R.E. 701.
Thus, we conclude that the trial court erred in determining that

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[the physician assistant’s] testimony did not constitute expert
testimony.

W.C., 174 A.3d at 1122. Appellant asserts the same is true here since Dr.

Arya’s opinion — that Appellant’s injuries were caused by a failure of the

implant rather than complications from the implant — “required her to rely on

her specialized knowledge beyond that possessed by the average layperson.”

Appellant’s Brief at 26.

However, Appellant fails to recognize a key distinction between W.C.

and the case sub judice. The causation opinion in W.C. did not arise during

the physician assistant’s treatment of the minor plaintiff, nor was it

memorialized in her treatment notes. Indeed, the question posed to her asked

if she “plan[ned] to offer any opinion as to the cause of [the] chest

growth.” W.C., 174 A.3d at 1121 (some emphasis omitted). That question,

and the witness’s response, demonstrated the opinion was “acquired or

developed in anticipation of litigation for trial,” rather than “based upon [her]

observations, diagnosis, and medical judgment” at the time she treated the

minor plaintiff. See Pa.R.C.P. 4003.5(a); Crespo, 167 A.3d at 182.

Accordingly, we find W.C. distinguishable on its facts.

Therefore, because we conclude the trial court did not abuse its

discretion when it determined Dr. Arya’s testimony constituted permissible lay

opinion testimony, we affirm the judgment in favor of Appellees.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2020

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