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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STACEY CARLITZ, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JACQUELINE D. CARLITZ, PENNSYLVANIA
DECEASED AND ALAN S. CARLITZ
v.
DELTA MEDIX, P.C. AND JEFFREY W.
GUSE
APPEAL OF: JEFFREY W. GUSE No. 1370 MDA 2015
Appeal from the Order Entered July 15, 2015
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 11 -CV -1458
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 04, 2017
I disagree with two of the Majority's conclusions in this matter: 1) that
Dr. Henzes' First Report did not mention, or otherwise suggest, a
'spontaneous fracture' theory; and 2) that "it should have been obvious to
the defendants that they were to avoid any mention of the spontaneous
fracture theory from Dr. Henzes' Second Report." Majority Memorandum at
39. Because I believe these conclusions were crucial to the Majority's
decision to affirm the order granting a new trial to the plaintiffs, based upon
the defendants' purported violations of the Court Order granting the motion
in limine, I respectfully dissent.
The consequence of the Court Order was the preclusion any new
theories not contained in the First Report. This much is not in dispute. With
little analysis, however, the Majority concludes that "the spontaneous
*Former Justice specially assigned to the Superior Court.
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fracture theory of causation was absent from the First Report." Id. at 37-
38. To the contrary, I believe the First Report alluded to, or was at least
ambiguous, regarding a spontaneous fracture causation theory. To be clear,
the two causation theories in question are that: 1) Mrs. Carlitz fell after
losing her balance while pivoting on her ankle, and she subsequently broke
her ankle during the fall (non -spontaneous fracture theory); and 2) Mrs.
Carlitz's ankle broke when she pivoted on it, causing her to fall (spontaneous
fracture theory).
The Majority concedes that the First Report "referred to the
mechanism of Mrs. Carlitz's injury as being due to the osteoporotic state of
her bones." Id. at 38. The Majority goes on to state that the First Report
only described the non -spontaneous fracture theory, and that a spontaneous
fracture theory was a "completely new theory of causation." Id. (emphasis
added). However, if the mechanism of Mrs. Carlitz's injury was the
osteoporotic state of her bones, how is that not congruent with a
spontaneous fracture theory? Does it not, in fact, implicitly suggest a
spontaneous fracture theory? Is there a fundamental difference between the
"cause" and "mechanism" of injury in this case? Is it merely the difference
between a general and specific cause?' The Majority does not answer these
critical questions.
1
To illustrate this difference, a doctor might describe the mechanism of
injury resulting from a fall as 'blunt force trauma.' Such a fall could result
(Footnote Continued Next Page)
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In my view, the First Report describes a general cause - that the
osteoporotic state of Mrs. Carlitz's ankle caused it to fracture in
circumstances when a healthy bone would not. That Dr. Henzes only went
on to describe the non -spontaneous fracture theory does not mean that his
description of the mechanism of her injury did not also encompass a
spontaneous fracture theory. Dr. Henzes was not an eyewitness to Mrs.
Carlitz's injury. He could not know the specific cause of it, he could only
speak to the general mechanism of that injury, and any suggestion of
specific causes were, therefore, merely hypotheticals. Accordingly, I reject
the Majority's conclusion that the First Report did not, at least to some
degree, suggest a spontaneous fracture theory, because it appears to me to
be inherently encompassed within Dr. Henzes' description of the mechanism
of injury.
Second, I do not believe the trial court effectively or sufficiently
conveyed to the defendants that the spontaneous fracture theory was
specifically precluded by the court's granting of the plaintiffs' motion in
limine. As the Majority acknowledges, at the time the trial court issued the
(Footnote Continued)
from an accident, foul play, or suicide. If our doctor's first expert report
suggested either an accident or foul play as examples of potential specific
causes of the blunt force trauma he observed, but he fails to suggest suicide
in that report, would his mention of suicide in a subsequent report be a
completely new causation theory? I think not, because the difference is not a
difference in kind (all are subsumed in the general cause, blunt force
trauma).
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Court Order, "it appears that the trial court was more concerned with the
untimeliness of the Second Report[,]" than with whether the defendants
could raise the spontaneous fracture theory through Dr. Henzes' testimony.
Majority Memorandum at 37. Indeed, while the trial court clearly ruled that
the defendants could not reference the language contained in the Second
Report, it provided virtually no guidance of the practical ramifications of that
decision, such as whether the spontaneous fracture theory was actually
contained within the four corners of First Report. The court's omission
and/or oversight in this regard occurred despite the specific,
contemporaneous arguments by the parties regarding that issue at the time
the motion in limine was litigated. The trial court did agree with the
plaintiffs that if the Second Report presented a new theory of causation, that
new theory would also be precluded under the Court Order. However, it is
obvious from the trial court's accompanying statement that the trial court
had not determined whether the Second Report had, in fact, presented a
new theory of causation. Instead, the trial court stated:
They have their theory as to what Dr. Henzes' initial report
means and you have yours. And if, in fact, his supplemental
report is a clarification, then it's not adding anything new, go
with the original report. So, the motion in limine on April 21st is
granted. Okay? I don't necessarily think it has anything to do
with it. I don't necessarily think the jury is going to conclude
what you guys conclude. But nevertheless, I thought we needed
to address it because it was outstanding.
N.T., 4/27/15, at 33-34.
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Clearly, the trial court did not advise the defendants that a
spontaneous fracture theory was precluded, or relatedly decide whether the
Second Report was merely an elaboration on the theory presented in the
First Report. Yet, the court was clearly aware of that dispute between the
parties, and the trial court's language, quoted supra, even suggests to me
the court's inexplicable intention to leave the matter for the jury to resolve,
an impression ultimately justified by the court's later discussion of the issue.
When the trial court addressed the plaintiffs' objection to defendant
Guse's counsel's opening statement, the first of the purported violations of
the Court Order, the court again appears to have sidestepped the essence of
the matter. In response to the objection, the court stated:
Well, I'm going to deny the motion for two reasons. I have
already told the jury what the lawyers say cannot be equated as
evidence, so your argument isn't evidence, and [] I told the jury
that they can't decide the case based upon anything I say or
what the lawyers say, but they are to decide it based on the
evidence. I would make certain that you handle that very
carefully, however, when you bring in Dr. Henzes.
N.T., 4/28/15, at 60.
Thus, the trial court yet again failed to resolve the dispute at its
second opportunity to do so. Indeed, the court's continued ambiguity could
be reasonably interpreted, given its prior statement on the matter, as having
suggested to the defendants that the spontaneous fracture theory was still
potentially admissible if they demonstrated to the jury that it emanated from
the First Report.
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Given the record as it stood when the plaintiffs objected to Guse's
counsel's opening statement, I simply cannot conclude that Guse's counsel
violated the Court Order at that time. Indeed, by first suggesting that it was
a matter for the jury, and then by failing to explicitly instruct the defendants
that the spontaneous fracture theory was excluded in response to this
objection, the trial court essentially invited the defendants to continue to
press the issue.
The trial court also determined that the Court Order was violated by
the defense during the direct examination of Dr. Henzes. Immediately prior
to Dr. Henzes' testimony, Guse's counsel asked the trial court to clarify what
Dr. Henzes was permitted to say in light of the court's precluding the
admission of the Second Report. N.T., 4/29/15, at 48. The court responded
that Dr. Henzes could testify as to whatever was within the "fair scope of his
first report[,]" and then asked, "[w]hy is that a problem?" Id. Counsel
responded: "I don't think it's a problem, I think it's clear what he said, but I
think [Plaintiff's counsel], you know, has said that it's something different."
Id.
Clearly, Guse's counsel was indicating to the court that it had not been
specific enough in its prior ruling regarding whether the Second Report
actually contained a wholly separate theory of causation not present in the
First Report. The court responded: "Let me be more specific, the
phraseology that he used in describing ... how this wound might have
occurred has to be that phraseology from his [first] report and not his
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second report." Id. at 49. This was only marginally more specific than the
prior instructions by the court, and still did not resolve the lingering
question.
Subsequently, during direct examination, Dr. Henzes was asked:
"[C]an you please tell the jury what your opinion is as to the causation
issues in this matter?" Id. at 58. Dr. Henzes responded, "That her
osteoporosis led her to having a low level trauma causing her to break her
ankle." Id. at 58-59. No objection was made to this testimony.
Subsequently, Dr. Henzes was asked, "And what's your understanding as to
the interaction between Mr. Guse and Jacqueline Carlitz and Alan Carlitz
once they arrived at Delta Medix?" Id. at 60. Dr. Henzes then stated:
Well, Mr. Guse was the ultrasound tech. [Ms. Carlitz] was
brought to Delta Medix. And she was brought in a van. She was
in a wheelchair. And the wheelchair, Mr. Carlitz, I believe,
pushed the wheelchair into the building. And Mr. Guse took over
and took her right into the exam room. He asked her if she
could get out of the wheelchair to get up on the exam table.
She said she could. She was able to get herself out of the chair.
With the help of Mr. Guse and Mr. Carlitz, she got up on to the
step that she needed to get onto to get onto the exam table.
And then, as she was pivoting herself around, she either-one of
two things either happened. Either she lost her balance and fell
and broke her ankle. Or as she was pivoting, the pivot
maneuver would have broken her ankle and then she would
have collapsed and fallen onto the floor.
Id. At this point, the plaintiffs' counsel objected.
A discussion was then held at sidebar, where the plaintiffs' counsel
complained that Dr. Henzes' report did not mention the pivoting as the
cause of the broken ankle (the spontaneous fracture theory). Id. at 61.
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Guse's counsel responded that the report did mention pivoting. Id.
However, although the plaintiffs' counsel agreed that the first report
indicated that Ms. Carlitz had pivoted on her ankle, he argued the report had
stated that she had "[p]ivot[ed] and attempt[ed] to do it, but [the first
report did not] list that as the cause. And he's talking about causation here.
The cause that it states here [in the first report] is that she lost her balance
and fell." Id.
A protracted discussion ensued, during which the court appeared to
carefully consider, for the first time, whether Dr. Henzes' initial report
actually referenced the spontaneous fracture theory, or whether it only
suggested that osteoporosis had contributed to Ms. Carlitz's injury after she
lost her balance and fell, the non -spontaneous fracture theory. Id. at 61-
71. In the middle of that discussion, the court stated: "Now, let's assume
for purposes of discussion that I were to favorably entertain [the plaintiffs'
argument that Dr. Henzes' in -court statement went outside the scope of the
first report], the horse is out of the barn, how do I correct it?" Id. at 65. In
response to this, the plaintiffs' counsel indicated that a mistrial was the only
possible remedy, as they had not obtained an expert to rebut the
spontaneous fracture theory. Id. at 66-67. Alternatively, the plaintiffs'
counsel argued that the court needed to "strike that testimony from the
record and tell the jury that there's no evidentiary basis for what the doctor
just said[.]" Id. at 67.
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More discussion ensued, with the trial court ultimately concluding that
it would deny the motion for a mistrial, read portions of the first report to
the jury, "and do a curative [instruction] and say, there was no alternative
theory." Id. at 71. I believe this was the first indication that the trial court
expressed any intent to exclude the spontaneous fracture theory under the
Court Order.
However, the court's subsequent actions immediately contradicted
what initially appeared to be a decision to preclude the spontaneous fracture
theory. First, the court did not order the objected -to testimony of Dr.
Henzes to be stricken from the record as the plaintiffs' counsel requested.
Second, the instruction given appeared to have reinforced the notion that
the spontaneous fracture theory was a factual matter for the jury to decide
(and not, therefore, specifically precluded by the Court Order). For instance,
the court instructed the jury as follows:
Ladies and Gentleman of the jury, I want to talk to you a little
about the objection and sidebar we just had. In the report that
is authored by Dr. Henzes dated August 19th, 2014 --and I'll let
you know what I'm reading from, doctor, so you can read along
with me. On Page 2, second paragraph where it starts, "The
mechanism of," do you see where I'm talking about? "The
mechanism of the patient's injury."
Okay, now, there's an issue as to whether we're talking about
causation. In other words, the dispute being, did she fall and
the leg broke ... so the fall would have been the cause of it? And
the mechanism was --I'm going to read to you what he says in
the report, okay? And then, I'm going to talk to you a little bit
about how it works. Because when you get a verdict slip in this
case, the first question is going to be; "Do you find that the
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defendant was negligent or did you find that the defendant
violated the standard of care?" That's why they're talking about
the standard of care here. A violation of the standard of care is
negligence in Pennsylvania. And then, the next one would be,
"Did the violation cause the injury?" Okay, was the person
harmed, is their factual cause of harm from that violation of
standard of care? And I think one of the lawyers made reference
to it in the opening. You can run a red light and not hit anything
and nobody hits you and you were negligent but you got away
with it because there was no damage, no harm, okay? Well, in
this particular case, the alternative theories that the doctor just
talked about don't necessarily reflect the wording in his report.
So I want to read to you the specific wording in Dr. Henzes'
report and kind of we're going to hold him to that, okay? And
this was what the report says.
But here's what I want you to understand. The report says, "The
mechanism of the patient's injury would be due to the
osteoporotic state of her bones." Now, you have to determine
what that means, okay? It might mean, if you fell, you wouldn't
have broken your bones because you're not an osteoporotic. But
that's what he says. Then, it says, "The pivoting that she was
attempting to do would be very similar to what she would do
each day getting in and out of bed and into her wheelchair to
participate in the activities at the nursing home. The only
difference would be the stool that she would step up onto to sit
on the exam table. The records reflect that Mr. Guse was
attempting her--" I'm sorry, "her balance and fell. It does not
appear that at any time she tried to navigate onto the stool
herself." That's the testimony that the doctor, any expert that
generates a report is held to the fair scope of the four corners of
the document. So that's what you need to digest as far as the
testimony of Dr. Henzes is concerned.
Id. at 71-75.
Nowhere in the trial court's rather confusing instruction did the court
directly indicate that the jury must ignore or disregard the spontaneous
fracture theory. Instead, the court appears to have again construed the
question as a factual matter to be resolved by the jury. While the jury was
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instructed to hold Dr. Henzes to the four corners of the admitted First
Report, the court also told the jury that "the alternative theories that the
doctor just talked about don't necessarily reflect the wording in his report."
Id. at 73 (emphasis added). This instruction, therefore, dovetails closely
with the comments the court made in granting the motion in limine, and not
with the plaintiffs' argument that the spontaneous fracture theory was
barred as a matter of law pursuant to the Court Order. See N.T., 4/27/15,
at 33-34 ("They have their theory as to what Dr. Henzes' initial report
means and you have yours. And if, in fact, his supplemental report is a
clarification, then it's not adding anything new, go with the original report.
So, the motion in limine on April 21st is granted. Okay? I don't necessarily
think it has anything to do with it. I don't necessarily think the jury is going
to conclude what you guys conclude.").
The trial court indicates that the third (and last) purported violation of
the Court Order occurred when, during redirect examination, Guse's counsel
asked Dr. Henzes, "[the plaintiffs' counsel] asked you questions about lost
balance and falling. Now, you had mentioned in your report initially the
twisting?" N.T., 4/29/15, at 114. Dr. Henzes answered, "[y]es." Id.
Counsel then asked him, "[n]ow, can a patient have a break and then a
fall?" Id. Dr. Henzes answered, again, "[y]es." Id. The plaintiffs' counsel
objected, and the trial court stated: "Sustained. You're going on the area
that we already covered and it's in the new report. It's not allowed.
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Disregard that testimony. That was a conceptual question about the patient
generally and not the patient in this case." Id.
I believe this was the first time that the trial court adequately and
sufficiently conveyed to the defendants that the spontaneous fracture theory
was being barred premised on the Court Order's exclusion of any new
theories contained in the Second Report, and the first time that the court
clearly indicated that the matter was not going to be resolved by the jury.
As no subsequent violations of the Court Order (so defined) occurred, I
would conclude, contrary to the Majority, that the trial court abused its
discretion by granting a new trial premised on these purported violations of
the Court Order.
I respectfully dissent.
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