J-A17040-17
2017 PA Super 293
FLORENCE JAMES, INDIVIDUALLY AND IN THE SUPERIOR COURT OF
AS THE EXECUTRIX OF THE ESTATE OF PENNSYLVANIA
LAFAYETTE JAMES (DECEASED),
Appellant
v.
ALBERT EINSTEIN MEDICAL CENTER,
RONALD WALOFF, M.D., ARIA HEALTH,
THE FRANKFORD HOSPITAL OF THE CITY
OF PHILADELPHIA, A/K/A AND OR D/B/A
FRANKFORD HOSPITAL - TORRESDALE
CAMPUS, ARIA HEALTH SYSTEM, ARIA
HEALTH PHYSICIANS SERVICES, GLENN
MEREWITZ, M.D., JEFFREY GREENSPAN,
D.O., OXFORD CIRCLE FAMILY
MEDICINE, ADAM S. PASTERNACK, D.O.,
THEODORE BURDEN, M.D., M.B.A. AND
BURDEN-NEWTON MEDICAL
ASSOCIATES,
Appellees No. 1723 EDA 2016
Appeal from the Judgment Entered May 13, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 00276 June Term, 2012
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED SEPTEMBER 12, 2017
Appellant, Florence James, individually and as the executrix of the
estate of her deceased brother, Lafayette James, appeals from the jury
verdict of no negligence in this medical malpractice claim. We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
J-A17040-17
We note at the outset that at seventy-eight pages, Appellant’s brief is
more than two and a half times the “safe harbor” maximum of thirty pages
(2.6 times, to be precise). Counsel for Appellant certifies that the brief
consists of 13,971 words, twenty-nine words less than the specified limit of
14,000 words prescribed in our rules of appellate procedure. (See
Certification of Compliance with Word Count Limit, 3/24/17); see also
Pa.R.A.P. 2135(a)(1).
However, on independent examination, we confirm a count of 18,519
words, making the brief about a third longer than the maximum permissible
length, without permission. It appears that counsel, or his word processor,
misstated the count by over 4500 words (4548, to be precise), failing to
comply with the requirements of Pa.R.A.P. 2135.
We could issue a rule to show cause order, with the possible sanction
of quashal unless counsel provides an adequate explanation for the
discrepancy. See Commonwealth v. Spuck, 86 A.3d 870, 877 (Pa. Super.
2014), appeal denied, 99 A.3d 77 (Pa. 2014).
However, we decline to do so for reasons of judicial economy. While
the brief is excessively rambling and could have benefited from more careful
editing, nothing in the available record suggests that reworking the existing
materials would furnish any proper basis to disturb the jury’s verdict. To
allow (or require) another round of briefs would place an additional burden
on the Appellees, and their counsel, and merely delay the inevitable.
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Accordingly, to the extent possible, we will review Appellant’s non-compliant
brief on the merits, despite the obvious procedural defects.
This is a complicated and convoluted case, but the basic themes of the
trial and the appeal may be simply stated. Appellant alleges that the
defendants/Appellees, five physicians and the institutional medical providers
for which they practiced, failed, for a period of over six years, from
December of 2004 until March of 2011, to diagnose the cause of her
brother’s various recurring abdominal problems. In 2011, after a CT scan,
liver biopsy, colonoscopy, and other tests, Lafayette was determined to have
a neuroendocrine carcinoid tumor.1 He died three years later, in February of
2014.2
____________________________________________
1
For background context, we take judicial notice that neuroendocrine
tumors are a highly diverse group of tumors formed by neuroendocrine cells.
Carcinoid tumors are by far the most common type of neuroendocrine tumor
found in the gastrointestinal system. See the Memorial Sloan Kettering
Cancer Center website, available at http://www.mskcc.org.
A carcinoid tumor is a specific type of neuroendocrine tumor.
Carcinoid tumors most often develop in the GI (gastrointestinal) tract, in
organs such as the stomach or intestines, or in the lungs. More than one
carcinoid tumor can develop in the same organ.
Because carcinoid tumors develop from neuroendocrine cells, they can
make high levels of neuropeptides and amines, which are hormone-like
substances. However, these substances may not be released in large
enough amounts to cause symptoms, or the substances may be defective
and not cause symptoms. A carcinoid tumor can grow slowly for many years
without causing symptoms. Although a carcinoid tumor is cancerous, it has
been described as “cancer in slow motion.” For additional information, See
(Footnote Continued Next Page)
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At trial, Appellant argued, in effect, that defendants/Appellees failed to
order the proper follow-up diagnostic tests, or to make appropriate referrals
to specialists. As a result of this delay in diagnosis, Appellant maintains,
decedent/Lafayette’s tumor grew until it metastasized and became
incurable.
Appellees defended on the ground that the physicians met the
appropriate standard of care in all respects. They also contended that
Lafayette was a noncompliant patient, who over the years failed to follow
through on various referrals to specialists, failed to return for scheduled
follow-up visits, and failed to present himself (in one instance, even failed to
stay in the emergency room) for additional test procedures. The available
record confirms that for the most part, decedent Lafayette only presented
every year or two, when his abdominal symptoms were acute.3
Pertinent to issues raised on appeal, at trial, counsel for Appellant
objected to the trial court’s acceptance of Dr. Steven Peikin as an expert
_______________________
(Footnote Continued)
http://www.cancer.net/cancer-type/carcinoid-tumor/introduction (sponsored
by the American Society of Clinical Oncology).
2
Lafayette brought suit before he died. After his death, his sister was
substituted as plaintiff.
3
Otherwise, he often would not follow up with his medical providers, or only
consult with them on unrelated issues, such as to obtain a prescription for
Viagra, without, however, reporting any ongoing symptoms related to his
abdominal problems. (See Trial Court Opinion, 2/10/17, at 2-3).
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defense witness on oncology.4 Appellant also tried to introduce evidence
supporting a loss of consortium by testimony from the decedent’s mother.
Counsel also objected to certain jury instructions. After a ten-day trial, the
jury rendered a defense verdict, finding no negligence by any of the named
defendants.
This timely appeal followed the denial by operation of law of
Appellant’s motion for a judgment notwithstanding the verdict (JNOV).5
Appellant raises six questions on appeal.
(1) Whether the [t]rial [j]udge erred in qualifying Appellee
Dr. Jeffrey Greenspan’s gastrointestinal expert as an expert in
oncology, thereby essentially denying in part Appellant’s Motion
In Limine, and allowing a gastroenterologist to offer causation
and damages testimony outside the scope of his field of practice,
thereby warranting JNOV in Appellant’s favor, or, in the
alternative, a new trial[?]
(2) Whether the [t]rial [j]udge erred in sustaining
Appellees’ objection to the testimony of Appellant’s Decedent’s
mother on the impact of the death of her son on her life, based
on erroneous Appellees’ argument at the time of her testimony
that she was not a beneficiary to the action, whereas Decedent’s
mother clearly is in fact a recognized beneficiary under the
Wrongful Death Act, thereby warranting JNOV in Appellant’s
favor, or, in the alternative, a new trial[?]
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4
Specifically, the court accepted Dr. Peikin as “an expert in the field of
gastroenterology, carcinoid syndrome, and carcinoid cancers related to
gastroenterology.” (N.T. Trial, 11/19/15 PM, at 31).
5
Appellant filed a timely court-ordered statement of errors, on June 24,
2016. The trial court filed an opinion on February 10, 2017. See Pa.R.A.P.
1925.
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(3) Whether the [t]rial [j]udge erred in its instruction to
the jury on the definition of “injuries,” when the jury inquired
during deliberations as to the definition of injuries of the
Appellant’s Decedent allegedly caused by the negligence of the
Appellees, for the [t]rial [j]udge’s explanation of “injuries,” was
inconsistent with injuries as set forth in the Wrongful Death and
Survival Acts, and the Suggested Standard Jury charges on
injuries under the Wrongful Death and Survival Acts, thereby
warranting JNOV in Appellant’s favor, or, in the alternative, a
new trial[?]
(4) Whether the [t]rial [j]udge erred by charging the jury a
second time on the issue of physician negligence (which was
Question Number 1 on the verdict sheet), where the nature of
the jury’s question during jury deliberation indicated that the
jury had decided the issue of physician negligence adverse to the
Appellees, and was focused on the impact of comparative
negligence of the Appellant’s Decedent (which was Question
Number 3 on the verdict sheet) on the overall verdict,
particularly where the jury requested clarification on Question
Number 5 relating to appointment of percentage of liability on
Appellees whose conduct were found to be a factual cause of
injury to the Appellant’s Decedent, thereby warranting JNOV in
Appellant’s favor, or, in the alternative, a new trial[?]
(5) Whether the [t]rial [j]udge erred by instructing the
jury multiple times, at the insistence of Appellees’ counsel, that
Appellant’s medical oncology expert Dr. Andrew Schneider was
being presented as a witness on causation only, and not
standard of care, where no such duplicative instructions were
ever provided by the [t]rial [j]udge as to any other witness,
thereby tainting the jury’s prior instruction when the witness was
qualified as an expert at the conclusion of voir dire, thereby
warranting JNOV in Appellant’s favor, or, in the alternative, a
new trial[?]
(6) Whether, based on the overwhelming evidence
presented at trial by the Appellant, through the testimony of the
Appellee physicians and through expert witnesses, including
Appellees’ own expert witnesses, makes it not possible for two
reasonable minds to disagree that the verdict should have been
rendered in favor of the Appellant and against the Appellees[?]
(Appellant’s Brief, at 6-7).
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We observe that despite the narrative emphasis in Appellant’s brief on
foregone diagnostic opportunities, (see id. at 8-27), the principal focus of
the appeal is on procedural claims of trial court error, chiefly involving the
scope of admissible expert testimony, and various instructions the trial court
gave the jury. We also observe that Appellant’s issues tend to overlap
somewhat, particularly as to jury instructions and the scope of certain expert
testimony. Finally, in a protracted catchall argument, (the sixth claim),
counsel for Appellant claims that she is entitled to JNOV (or a new trial).6
(See Appellant’s Brief, at 57-77). On independent review, we conclude that
none of Appellant’s issues merit relief.
Appellant’s first issue challenges the trial court’s acceptance of Dr.
Steven Peikin, Dr. Greenspan’s expert witness, as an expert in oncology.7
(See Appellant’s Brief, at 6). The thrust of Appellant’s argument is that Dr.
Peikin was improperly permitted to testify outside the scope of his primary
specialty, gastroenterology. (See id. at 25, 28-30). We disagree.
The decision of the trial judge to admit expert testimony may be
reversed only where there has been an error of law or an abuse
of the substantial discretion vested in the trial court. The
Pennsylvania Supreme Court has repeatedly held that the
____________________________________________
6
However, all of Appellant’s claims raise the issue of JNOV (or a new trial),
directly or indirectly.
7
Counsel for Appellant timely objected to the trial court’s acceptance of Dr.
Peikin as an expert on oncology. (See N.T. Trial, 11/19/15 PM, at 7, 31).
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standard for evaluating the qualifications of an expert witness
under Pennsylvania law is a liberal one:
The test to be applied when qualifying an expert
witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation. If he does, he may testify and the weight to
be given to such testimony is for the trier of fact to
determine.
* * *
In the area of medicine, specialties sometimes
overlap and a practitioner may be knowledgeable in more
than one field. Different doctors will have different
qualifications, some doctors being more qualified than
others to testify about certain medical practices. It is,
however, for the jury to determine the weight to be given
to expert testimony, in light of the qualifications shown by
the expert witness.
B.K. ex rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1182 (Pa.
Super. 2003), appeal denied, 847 A.2d 1276 (Pa. 2004) (citations and
internal quotation marks omitted) (emphasis in original).
Here, it bears noting that Appellant’s argument is not supported by
controlling authority. Appellant cites McDaniel v. Merck, Sharp & Dohme,
533 A.2d 436 (Pa. Super. 1987), appeal denied, 551 A.2d 215 (Pa. 1988).
(See Appellant’s Brief at 29). However, even McDaniel recognized that
“[e]xperts in one area of medicine have been ruled qualified to address other
areas of specialization where the specialties overlap in practice, or where the
specialist has experience in another related medical field.” McDaniel,
supra at 442 (collecting cases).
The McDaniel Court explained:
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The law regarding the qualification of witnesses as experts
is well established. It is true that whether a witness has been
properly qualified to give expert opinion testimony is vested in
the discretion of the trial court. The Pennsylvania standard of
qualification for an expert witness is a liberal one. If a witness
has any reasonable pretension to specialized knowledge on the
subject under investigation he may testify, and the weight to be
given to his evidence is for the jury. Although the witness must
demonstrate some special knowledge or skill, there is no
requirement that a witness acquire that knowledge as a
result of formal schooling; expertise acquired by
experience is expertise nonetheless.
Id. at 440 (citations and internal quotation marks omitted; emphasis
added).
Statutory law supports the same result. In pertinent part, the Medical
Care Availability and Reduction of Error (MCARE) Act, 40 Pa. Stat. Ann.
§§ 1303.101-1303.910, provides that:
(e) Otherwise adequate training, experience and
knowledge.─A court may waive the same specialty and board
certification requirements for an expert testifying as to a
standard of care if the court determines that the expert
possesses sufficient training, experience and knowledge to
provide the testimony as a result of active involvement in or
full-time teaching of medicine in the applicable subspecialty
or a related field of medicine within the previous five-year
time period.
40 Pa. Stat. Ann. § 1303.512 (emphases added).
In this case, counsel for Appellant obtained Dr. Peikin’s concession that
he is not board certified in oncology. (See Appellant’s Brief, at 29).
Nevertheless, there is no dispute that Dr. Peikin is board certified in internal
medicine and gastroenterology. He was previously on the faculty of
Jefferson Medical College for twelve years. He is the head of
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Gastroenterology and Liver diseases at Cooper University Hospital, and is an
adjunct professor at the University of Texas M.D. Anderson Cancer Center.
Dr. Peikin testified that as a gastroenterologist, he diagnoses cancer. At
Cooper, he is on the “tumor board,” a multidisciplinary team which monitors
cancer patients and decides on courses (“modalities”) of treatment. Earlier
in his medical career, after graduating from Jefferson Medical College, he
completed a fellowship in gastroenterology at Harvard (where he was
assigned to Massachusetts General Hospital). He also did a two year
fellowship in endocrine tumors (the tumors at issue here) at the National
Institutes of Health.
We note that the requirements for expert testimony on standard of
care are even more stringent than the requirements for expert testimony on
causation. Under either standard, however, we discern no error of law or
abuse of discretion in the trial court’s decision to accept Dr. Peikin as an
expert in the field of carcinoid tumors. Appellant’s first issue does not merit
relief.
In her second issue, Appellant challenges the limitation of the
testimony of Florence James, mother of the decedent (Mother), about her
pain and suffering. (See Appellant’s Brief, at 6). Appellant argues that
Mother was improperly prohibited from testifying about the impact of the
death of her son on her life. (See id. at 31-37). We disagree.
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We observe that Mother was not a plaintiff in this lawsuit.
Nevertheless, the trial court permitted Mother to testify about her pecuniary
losses as a beneficiary under the wrongful death statute. However, the trial
court sustained defendants’ objections to questions about Mother’s pain and
suffering. After this ruling, Appellant’s counsel declined to question Mother
further.
Counsel for Appellant argues, correctly, that parents are included as
potential beneficiaries under the Wrongful Death Statute. (See Appellant’s
Brief, at 35).
In pertinent part, the statute provides:
(b) Beneficiaries.─Except as provided in subsection (d),
the right of action created by this section shall exist only for the
benefit of the spouse, children or parents of the deceased,
whether or not citizens or residents of this Commonwealth or
elsewhere. The damages recovered shall be distributed to the
beneficiaries in the proportion they would take the personal
estate of the decedent in the case of intestacy and without
liability to creditors of the deceased person under the statutes of
this Commonwealth.
42 Pa.C.S.A. § 8301(b) (emphasis added).
However, Mother would not be entitled to damages for the loss of
consortium with regard to her son. It is well-settled that Pennsylvania does
not recognize a right of filial consortium. See Machado v. Kunkel, 804
A.2d 1238, 1244 (Pa. Super. 2002), appeal denied, 819 A.2d 547 (Pa.
2003); see also Jackson v. Tastykake Inc., 648 A.2d 1214, 1217 (Pa.
Super. 1994) (collecting cases). The trial court properly sustained
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objections to testimony about mother’s pain and suffering, which raised the
issue of mother’s loss of consortium. Appellant’s second claim does not
merit relief.
Appellant’s third, fourth, and fifth issues all challenge jury instructions
of the trial court. (See Appellant’s Brief, at 37-44, 45-52, 52-56). We
address them together.
Our standard of review regarding jury instructions is
limited to determining whether the trial court committed a clear
abuse of discretion or error of law which controlled the outcome
of the case. Error in a charge occurs when the charge as a
whole is inadequate or not clear or has a tendency to mislead or
confuse rather than clarify a material issue. Conversely, a jury
instruction will be upheld if it accurately reflects the law and is
sufficient to guide the jury in its deliberations.
The proper test is not whether certain portions or
isolated excerpts taken out of context appear erroneous.
We look to the charge in its entirety, against the
background of the evidence in the particular case, to
determine whether or not error was committed and
whether that error was prejudicial to the complaining
party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015), appeal denied,
125 A.3d 778 (Pa. 2015) (citations and internal punctuation omitted).
Here, Appellant fails to demonstrate error in the various challenged
jury instructions. Instead, her counsel purports to interpret, with no source
cited, what the jury may have been thinking when it raised various
questions, and what conclusions it may have already reached. (See,
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e.g., Appellant’s Brief, at 41) (“A reasonable interpretation of the jury’s
question . . . is . . .”); (id. at 45) (“[T]he nature of the jury’s question . . .
indicated that the jury had decided the issue of physician negligence
adverse to the Appellees . . . .”) (emphasis added).
We decline Appellant’s invitation to engage in speculation or conjecture
about what the jury, collectively or individually, may have been thinking
when it asked the trial court a clarification question, let alone, presume to
direct the trial court, as counsel suggests, to engage in specific procedures
based on any such speculation. (See Appellant’s Brief, at 51) (arguing the
trial court should not have re-read the burden of proof charge to the jury
because the nature of the jury’s question suggested the jury had already
decided the issue of physician negligence adversely to the defendants).
Appellant’s self-serving speculations are unsupported, and unwarranted; in
any event they fail to demonstrate actionable error or abuse of discretion by
the trial court. Appellant’s third and fourth claims do not merit relief.
On the fifth claim, Appellant challenges the trial court’s cautionary
instructions on the scope of testimony of plaintiff/Appellant’s oncology
expert, Dr. Andrew Schneider. Counsel for Appellant had agreed in advance
to limit the scope of Dr. Schneider’s testimony to causation, apparently in
recognition of the fact that Dr. Schneider was not qualified to testify as an
expert on standard of care. Nevertheless, counsel persisted in asking (and
Dr. Schneider repeatedly volunteered testimony), whether the defendant
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physicians rendered a timely diagnosis, an implicit standard of care question,
not correlated to causality. On defense objection, the trial court responded
by reminding the jury through cautionary instructions that Dr. Schneider’s
expert testimony was limited to causation, not standard of care.
On independent review, we conclude that the trial court’s explanation
for the repeated cautionary instructions, necessitated by the repeated failure
of both Appellant’s counsel and Dr. Schneider to abide by the agreed-on
restrictions, was more than adequate to demonstrate that no error of law or
abuse of discretion occurred. (See Trial Ct. Op., at 11). Appellant’s fifth
claim does not merit relief.
Finally, in her sixth claim, Appellant argues generally that the trial
court improperly denied JNOV. (See Appellant’s Brief, at 57-77). We
disagree.
Our standard of review of an order denying judgment
n.o.v. is whether, reading the record in the light most favorable
to the verdict winner and granting the benefit of every favorable
inference, there is sufficient competent evidence to support the
verdict. Any conflict in the evidence must be resolved in the
verdict winners’ favor. Judgment n.o.v. may be granted only in
clear cases where the facts are such that no two reasonable
minds could fail to agree that the verdict was improper.
Tillery v. Children's Hosp. of Philadelphia, 156 A.3d 1233, 1239–40 (Pa.
Super. 2017) (citations omitted).
Appellant maintains that because of the “overwhelming amount of
evidence” in support of her claims, no two reasonable minds could disagree
that the jury rendered an incorrect verdict. (Appellant’s Brief, at 58). It
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bears noting that Appellant uses this unwarranted assumption as a
springboard to reargue virtually the entire case. (See id. at 57-77).
Appellant’s reargument misapprehends the purpose of appellate
review. This is an error correcting Court. We do not sit to re-weigh the
evidence and, if so inclined, overturn the jury’s verdict. Instead, to prevail
on appeal, it was Appellant’s burden to prove an error of law, or that no two
reasonable minds could disagree that the verdict was in error.
Under our standard of review, our role is to read the record in the light
most favorable to the verdict winners and, granting the verdict winners the
benefit of every favorable inference, to determine if there is sufficient
competent evidence to support the verdict. See Tillery, supra at 1239–40.
Mindful of that standard, we conclude that there is. For Appellant to prevail
on a claim for JNOV it is not enough for Appellant’s argument merely to
recite a self-serving version of the facts and to frame the conclusion in the
language of the standard. (See Appellant’s Brief, at 77). Appellant’s claim
for JNOV would fail under our standard of review.
The death of Lafayette James is understandably an occasion of
sadness for his survivors. But this family loss cannot and should not prevent
us from deciding Appellant’s claims according to well-settled precedent by
long established legal procedures. Under our standard of review, Appellant
has failed to prove any actionable error in the jury’s verdict. Furthermore,
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Appellant failed to prove any error or abuse of discretion in the trial court’s
rulings.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2017
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