J-S33036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FATIMAH MUHAMMAD                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

AMJAD ALI, M.D.

                          Appellee                    No. 1646 WDA 2015


                   Appeal from the Order September 23, 2015
                  In the Court of Common Pleas of Erie County
                       Civil Division at No(s): 12078-2011


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED MAY 4, 2016

        Appellant, Fatimah Muhammad, appeals pro se from the order entered

in the Erie County Court of Common Pleas, which granted the motion of

Appellee, Amjad Ali, M.D., for preclusion of expert testimony at trial and for

summary judgment. We affirm.

        In its opinion, the trial court fully set forth the relevant facts and

procedural history of this case.      Therefore, we have no reason to restate

them.

        Appellant raises two issues for our review:

           WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW
           WHEN EMPLOYING THE WRONG STANDARD OF REVIEW
           WHEN DETERMINING TO GRANT APPELLEE’S REQUEST TO
           [PRECLUDE APPELLANT FROM PRESENTING] EXPERT
           TESTIMONY AND [GRANTING APPELLEE’S] MOTION FOR
           SUMMARY JUDGMENT…UNDER PA.R.[C].P. 1042.28?
___________________________

*Former Justice specially assigned to the Superior Court.
J-S33036-16



          WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW
          UNDER THE LAW OF THE CASE DOCTRINE WHEN
          ENTERING A NEW AMENDED CASE MANAGEMENT ORDER,
          ORDERING APPELLANT TO FILE A SUBSEQUENT EXPERT
          REPORT[,] WHICH ARBITRARILY PREJUDICE[D] THE
          DISMISSAL OF APPELLANT’S CASE BY SUMMARY
          JUDGMENT?[1]

(Appellant’s Brief at 5).

       Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

____________________________________________


1
  Appellant’s second issue appears to implicate the coordinate jurisdiction
rule, which states: “[J]udges of coordinate jurisdiction sitting in the same
case should not overrule each [other’s] decisions.” Commonwealth v.
Starr, 541 Pa. 564, 573, 664 A.2d 1326, 1331 (1995). “[T]his coordinate
jurisdiction rule falls squarely within the ambit of a generalized expression of
the ‘law of the case’ doctrine. This doctrine refers to a family of rules which
embody the concept that a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the matter.” Id. at 574,
664 A.2d at 1331. “Further, the limitations on the law of the case doctrine
and on the coordinate jurisdiction rule are virtually identical…. Departure
from either of these principles is allowed only in exceptional circumstances
such as where there has been an intervening change in the controlling law, a
substantial change in the facts or evidence giving rise to the dispute in the
matter, or where the prior holding was clearly erroneous and would create a
manifest injustice if followed.” Id. at 575-76, 664 A.2d at 1332. Here,
Appellant asserts the trial court wrongly ordered Appellant to file an expert
report after she had already filed a certificate of merit. Appellant, however,
confuses the filing a certificate of merit and the necessity for submitting a
medical expert report during discovery, which are distinct requirements in a
medical malpractice case.        As presented Appellant’s argument on the
application of the coordinate jurisdiction rule/law of the case doctrine is
misplaced. Therefore, we give Appellant’s second issue no further attention.




                                           -2-
J-S33036-16


347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In reviewing a trial

court’s grant of summary judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We view the record
         in the light most favorable to the non-moving party, and
         all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury. In other words, whenever there is no
         genuine issue of any material fact as to a necessary
         element of the cause of action or defense, which could be


                                     -3-
J-S33036-16


         established by additional discovery or expert report and
         the moving party is entitled to judgment as a matter of
         law, summary judgment is appropriate. Thus, a record
         that supports summary judgment either (1) shows the
         material facts are undisputed or (2) contains insufficient
         evidence of facts to make out a prima facie cause of action
         or defense.

         Upon appellate review, we are not bound by the trial
         court’s conclusions of law, but may reach our own
         conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      As a general rule, “the negligence of a physician encompasses matters

not within the ordinary knowledge and experience of laypersons”; therefore,

“a medical malpractice plaintiff must present expert testimony to establish

the applicable standard of care, the deviation from that standard, causation

and the extent of the injury.” Toogood v. Owen J. Rogal, D.D.S., P.C.,

573 Pa. 245, 255, 824 A.2d 1140, 1145 (2003).

         The expert testimony requirement in a medical malpractice
         action means that a plaintiff must present medical expert
         testimony to establish that the care and treatment of the
         plaintiff by the defendant fell short of the required
         standard of care and that the breach proximately caused
         the plaintiff’s injury. Hence, causation is also a matter
         generally requiring expert testimony.        A very narrow
         exception to the requirement of expert testimony in
         medical malpractice actions applies where the matter is so
         simple or the lack of skill or care so obvious as to be within
         the range of experience and comprehension of even non-
         professional persons, …also conceptualized as the doctrine
         of res ipsa loquitur.

Id.   “The doctrine of res ipsa loquitur is a rule of circumstantial evidence


                                     -4-
J-S33036-16


which     allows   plaintiffs,   without   direct   evidence   of   the   elements   of

negligence, to present their case to the jury based on an inference of

negligence.” MacNutt v. Temple University Hosp., Inc., 932 A.2d 980,

988 (Pa.Super. 2007) (en banc), appeal denied, 596 Pa. 708, 940 A.2d 365

(2007).    This doctrine cannot be employed “simply because the treatment

caused injury or failed to yield the expected result. Courts have continually

stated that an injury alone is insufficient to prove negligence in medical

malpractice cases.” Toogood, supra at 256, 824 A.2d at 1146. In medical

malpractice cases, this doctrine is reserved for extraordinary circumstances

where no explanation other than defendant’s negligence exists. See, e.g.,

Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d

1061 (2006) (holding evidence supported res ipsa loquitur jury instruction,

where quadriplegic patient who was left unaccompanied on medical

examination table that lacked safety rails or other restraints, after surgical

procedure, fell from table and suffered severe injuries, which purportedly

resulted in his death; evidence sufficiently eliminated other responsible

causes of plaintiff’s injuries).       Evidentiary decisions such as the ones

involved in the present case are generally within the discretion of the trial

court and will not be disturbed absent an abuse of that discretion or

misapplication of the law.          Stumpf v. Nye, 950 A.2d 1032, 1035-36

(Pa.Super. 2008), appeal denied, 599 Pa. 711, 962 A.2d 1198 (2008).

        After a thorough review of the record, the briefs of the parties, the


                                           -5-
J-S33036-16


applicable law, and the well-reasoned opinion of the Honorable John A.

Bozza, we conclude Appellant’s remaining issue merits no relief.         The trial

court opinion carefully discusses and properly disposes of Appellant’s

remaining question. (See Trial Court Opinion, filed September 23, 2015, at

3-9) (finding: Appellant failed to comply with case management orders or

repeated discovery requests, despite numerous opportunities and extensions

given her to overcome serious procedural deficiencies in her case;

ultimately, Appellant did not provide qualified medical expert report to

sustain   her   allegations   of   negligence;   Appellant’s   claims   implicated

sophisticated medical judgment and skill that required professional medical

evaluation; jury would be unable to conclude without expert testimony that

Appellee’s actions or omissions led to Appellant‘s alleged injuries; Appellant

did not meet her burden to show, at this juncture of case, existence of any

material issues of fact to justify going to trial without expert opinion or any

other evidentiary manifestations of what actually occurred during course of

medical care at issue, other than assertions contained in her initial pleading;

Appellee was entitled to ascertain with some certainty the exact nature of

case against him within reasonable time; Appellee waited four years since

case was instituted and seven years since alleged incident of medical

negligence; absent medial expert report, Appellant was properly precluded

from going forward to trial without expert opinion/testimony; under these

circumstances, summary judgment in Appellee’s favor was warranted). We


                                       -6-
J-S33036-16


agree.   The allegations in this case required expert opinion.      Absent an

expert report, Appellant could not make out a prima facie case of medical

negligence. Accordingly, we affirm on the basis of the trial court opinion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




                                     -7-
                                                                                 Circulated 04/11/2016 12:02 PM




    FATIMAH MUHAMMAD,                                    lN THE COURT OF COMMON PLEAS
                                    Plaintiff            OF ERIE COUNTY, PENNSYVLANIA
            v                                            CIVIL DIVISION

    AMJAD ALT, MD,
                                    Defendant            NO 12078-2011




                                                MEMORANDUM




       This medical negligence action arises out of care and treatment which took place m

June of 2008 The plaintiff, Fatimah Muhammad, initiated the action by Wnt of Summons

on June 8, 2011 and subsequently filed a Complaint on September 26, 2011. On June 23,

2008, the plaintiff underwent a laparoscopic cholecystectomy, an mtraoperative

cholangetogram and a hver biopsy, all performed by defendant Amjad Ali, M.D.

       Muhammad alleges that Dr. Ali negligently performed the June 23, 2008 surgery.

Specifically,   it 1s alleged   that Dr. Ali was negligent in improperly placing surgical clips, m

failing to switch to an open procedure from a laparoscoptc procedure when he encountered

difficulty in properly identifymg anatomy, and in faihng to appreciate and treat plaintiffs

post-operative complaints of pain, The platnttff further alleges that Dr. Al;'s obstruction of

the nght hepatic duct necessitated an open right hepatic lobectomy and resection of the bile

duct, which led to chronic gastrointestinal illness, accelerated decompensation of her hver,

and aggravation of her Hepatitis C, among other thmgs Fmally, plaintiff Muhammad

alleges that she repeatedly developed ascites, which requires paracentesis, and that she is

currently on the liver transplant waitmg list as a result,

       On March 2·~, 2012, the plaintiff's former counsel filed a Motton for Leave to Withdraw

as Counsel for the Plaintiff On April 4, 2012, the Court entered an Order gra
                                                                         T U~~~::i,u~
    withdraw and staymg the case for a period of 60 days. On July 9, 2012, the Court issued an

    Order requiring the plamnff'to      file a Certificate of Ment "prepared by aquahfied          physician,

detailing that there exists a reasonable probabihty that the care, skill or knowledge exercised or

exhibited m the treatment, practice or work that is the subject of the complaint, fell outside

acceptable professional standards and that such conduct was a cause m bnngmg about the harm."

In response, on July 20, 2012, the plaintiff filed a Certificate of Merit signed by herself, stating

that she had       1n   her possession a wntmg setting forth such a statement. The Court ruled that

plaintiffs Certificate of Merit was sufficient to meet the requirements of Pa. R,Civ.P.

    1042 3(a)(l)

           On Apr11,.C.f)2013, the Court entered an Amended Case Management Order which

provided that "plamtiff s expert reports shall be filed by August 31, 2013~' On May                    q , the
defendant served a Request to the plamtiff'for Production of Expert Reports pursuant to

P~R.Cl\'. P. 1042 28- No report was provided by Ms Muhammad by the November 25, 2013

deadhne On June 19, 2013, she filed a "Motion to Seek a Determmation by the Court as to the

Necessity ofFthng a Certificate of'Ment" Although styled as a motion seeking an Order

concemmg the necessity of a Certificate of Merit, Ms. Muhammad was actually askmg the Court

to rule that she did not have to present expert testimony at the time of trial.'

           On July 7, 2014, Dr. Ali filed a Motion to Compel Production of Expert Report and on

May 20, 2015 after briefing and oral argument, the Court denied Ms. Muhammad's Motion not to

present expert testimony and granted Dr. Ai11!> Motion to Compel Production of Expert Report,

The Court directed that plaintiff Muhammad produce an expert report supporting her claims

wrthm thirty days of its rulmg, or by June 19, 2015 On June\ 112015, the plamnff'filed a


I
 The prosecution of'this case was delayed at various times due to Ms Mohamed's concern for her abrhty to proceed
for health related reasons There was also delay attributable to her dispute with her former counsel that necessitated
a hearing on a Motton for Sanctions
                                                          2
Motion for Reconsrderation     of Court Order and to AU ow Plaintiff to Proceed m Trial Proceeding

Pursuant to 3280 of Restatement (Second) of Torts Act Res Ipsa Loquttur, asking the Court to

permit her to proceed to trial under the doctnne Without the need to present expert testimony.

This Court demed her motion.

          The plaintiff also filed a Motion for Extension of Time to File Expert Opinion Pursuant

to Pa.R. C1v, P. 1043 3(3)(d), in which she stated that she had "enlisted the legal aid of counsel to

investigate her case and to obtam an expert opinion" and that counsel was in need of a thirty-day

extension of time. The Court issued an Order on June 17, 2015, denying the Motion for

Extension of Time without prejudice to plamnff's new counsel fihng such a request within seven

days, or by June 24, 2015     As of date of this opmion, new counsel has not filed an appearance

nor requested an extension of time to provide an expert report.

          Under the April :Cf, 2013 Amended Case Management Order, plaintiffs expert reports

were due by August 31, 2013, pursuant to Defendant's Request to Plaintiff for Production of

Expert Reports pursuant to PaR.C1v. P. 1042 28(b), plaintiffs expert reports were due by

November 25, 2013, and under the May 20, 2015 Court Order, plaintiff's expert reports were due

by June 19, 2015 As of this date the plaintiff has not produced any expert report to support her

medical negligence claims against Dr. Ali. Accordingly for the reasons set forth below, the
                   .                                          ,
defendant's Motion to Preclude Expert Testimony and Motion for Summary Judgment Will be

granted



Discussion

   A. Failure to Provide an Expert Report

          A party who has not received an expert report required by Rules of Crvil Procedure 1s

entitled to seek a report by filing a motion. Pa.R,C1v.P. 1042 3l(a), If granted the court must
                                                  3
give the party a reasonable time to produce the report, Id. Here Dr, Al; filed such a Motion, 1t

was granted and the plaintiff was given thirty days to produce a report that had been mrnally

requested m 2013. Although the plaintiff's motion for an extension of tame to file the report was

denied, the court provided that new counsel,   who111 Ms,   Muhammad alleged she had obtained,

could do so withm seven days. No report was filed and no new counsel entered an appearance m

the case. A party who fails to file a report as required by the court may be precluded from

introducing expert testimony at the time of tnal, Pa, ~C1v. P. I 042 31 (b )~ The defendant's

request to bar the mtroducnon of a report was is now before the court along       WI th   a request the

entry of summary Judgment.

        On Apnl    't)   2013, the Court entered an Amended Case Management                 Order which

provided that "Plamnff's expert reports shaJI be filed by August 31, 2013" and thereafter on May

' · '\ 2013 the defendant, served a Request to Plamnff for Production of Expert Reports and

pursuant to Pa.R..C1v, P. I 042 28, Ms Muhammad's expert reports were required no later than

November 25, 2013. Pa.R,Ctv.P.        1042 28(b) (A plaintiff shall file an expert report withm 180

days of such a request) ..

        No such report was forthcoming and on July 7, 2014, Dr .. Ali filed a Motion to Compel

Production of Expert Report. After a considerable delay largely due,      ' Ms. Muhammad's health
                                                                              .
concerns, after bnefing       and oral argument, the Court granted Dr All's Motion to Compel

Production   of Expert Report and denied Ms. Muhammad's              Motion not to present expert

testimony, The Court directed that plamtiff produce an expert report supportmg her claims

withm th I rt y days of its rulmg, or by June 19, 2015.. She didn't do so and has not done so to

date,   Although her request for reconsideration       was denied, the Court provided that her new

counsel, who she claimed was investigating her case, could file a request for an extension;

nothing further transpired.
                                                   4
           The defendant's ongmal request would have required that the expert report should have

been provided more than 18 months ago. It is evident that the plaintiff has no mtention to file

such a report and now claims that the nature of the alleged malpractice rs such that expert

testimony is not required. Despite multiple opportumtres and ample time, the plaintiff has failed

to comply with the requirements of procedural law and therefore, pursuant to Pa, R. Civ P,.

1042 31 (b), the Plaintiff shall be precluded from presentmg expert medical testimony at the time

of tnal,

           The preclusion of evidence is not a decision taken lightly by the court, Here it is not
 •                        •           .                      fol\c,-.J Vo,,
simply a matter of pumshmg a litigant for Y\e.v· failure to, /\          procedural rule but rather lookmg

at the larger picture comprised of a long and involved procedural history in which the plamnff

has been given numerous opportunities to overcome a number of procedural deficiencies, This

mcluded giving Ms Muhammad a number of opportunities dunng the earher portion of the case

to file an appropriate certificate of merit and to secure new counsel when her tmtial attorney

could not secure a favorable expert review of her case, Ultimately u was evident that the

plaintiff was not m a position to provide a report of a qualified expert supportmg her positron and

that such a report would not be forthcoming in the future. The defendant ts entitled to ascertain

with some certamty the exact nature of the case against him wtthtn a reasonable time frame. ln

that regard Dr. Ali has waited approximately four years with seven years having passed smce the

alleged incident of medical negligence.



B. SummaryJudgment

           Under the Rules of Civil Procedure governmg summary Judgment, the non-movmg party

must adduce sufficient evidence on an issue essential to her case, and on which she bears the

burden of proof, such that a Jury could return a verdict m their favor, Pa.R .C1v.P. 1035 2. The
                                                     5
non-moving party may not rest upon mere allegations m the pleadmgs, but must identify

evidence in the record establishmg the facts essential to the cause of action. Pa.R.C1v. P.

1035 3(a), Ertel v Patnot News Co. 544 Pa 93, 674 A 2d 1038 (Pa. 1996), cert denied, 519

U.S. l 008 (1996), Summary Judgment is appropnate when the plamtrff is unable to satisfy an

element necessary to her cause of action. Fessenden v Robert Packer Hospital, 97 A 3d

1225, 1229 (Pa. Super. 2014), appeal dented, 113 A 3d 280 (Pa. 2015), ertmg Youngv DOT,

744A 2d 1276, 1277 (Pa. 2000).,

           Res tpsa loquttur rs a rule of evidence permitting an mference of negligence from the

circumstances surrounding the mJury~ Quinby v Plumsteadvtlle Family Practice, Inc , 907 A 2d

I 061, 1071 (Pa. 2006), The question arises as to the sufficiency of the evidentiary record to

 Q. I\   ow, a jury to infer the professional negligence of a physician, In Gilbert   v Korveue, lnc.,

457 Pa 602, 327 A 2d 94 (1974), this Court adopted the res tpsa loquttur as articulated m the

Restatement (Second) of Torts § 3280,

           Under§ 3280 'it may be mferred that harm suffered by the plamnff is caused by

negligence of the defendant when

                   (a) the event is of a kmd which ordmanly does not occur m the absence of
                       negligence,

                   (b) other responsible causes, meludmg the conductofthe plamtrff and
                       third persons, are sufficiently eliminated by the evidence, and

                   (c) the indicated negligence is within the scope of the defendant's duty to
                       the plaintiff


See, Toogood v Toga/, 824 A 2d 1140, 1149-50 (Pa. 2003) (holding that before the res tpsa

loquuur doctnne may be mvoked, plamtiff'must meet the three elements of§ 3280).

           In a medical malpractice case, a plaintiff must establish a duty owed by the physician to

the patient, a breach of that duty by the physician, that the breach was the proximate cause of the
                                                      6
 harm suffered, and that the damages sustained were a direct result of harm, Vazquez v CHS

 Professional Practice, PC, 39 A 3d 395, 397-98 (Pa, Super, 2012), citing Hightower-Warren v

 Silk, 698 A 2d 52, 54 (Pa. 1997)), "With alJ but the most self-evident medical malpractice

 actions, there is also the added requirement that the plamtiff must provide a medical expert who

 will testify as to the elements of duty, breach, and causation."   Vazquez v CHS Professional

 Pracuce, PC, 39 A 3d 393, 397-98 (Pa. Super, 2012), cinng Quinby v Pltmsteadvtlle Family

Practice, Inc, 907 A 2d 1061, 1070-71 (Pa~2006) ..

        In general and at the heart of any medical malpractice case, a plamuff must prove by

expert testimony the prevailing standard of medical care accepted by the medical profession.

Catlin v Hamburg, 56 A 3d 914,920 (Pa. Super, 2012), appeal dented, 74 A 3d 124 (Pa,2013),

Grossman v Barke, 868 A 2d 561, 566 (Pa, Super. 2005). Secondly, expert testimony is

required to establish that the professional conduct of the defendant deviated from and fell below

such standard. Grossman, 868 A 2d at 566; Yacoub v Lehigh Valley Med. A..i,..i,0<,..i,., P. C, 805

A 2d 579, 591 (Pa. Super. 2002), Fmally, expert testimonyis required to establish that the

plaintiff's injunes were caused by the defendant's failure to adhere to the appropriate standard of

care- Caulin, 56 A 3d at 920; Grossman, 868 A 2d at 566.

        Only m circumstances where the matter rs so straightforward such that the defendant's

lack of skill or care is deemed to be within the range of the comprehension and experience of an

ordinary person with no medical experience, does a plaintiff not have to present expert testimony

on a core issue, Masgai v Frandtn, 787 A 2d 982 (Pa. Super. 2001) ( the court granted summary

Judgment m favor of the defendant where the plamttff'failed to timely submit an expert report

supporting claims that the defendant negligently performed a laparoscopic cholecystemomy , the

same procedure at issue m this case); Toogood v Owen J Rogal, D. D. S,, P. C., 824 A 2d 1140,

1146 (Pa.2003).
                                                   7
.

             In this case the plamtiff has set forth m her complaint numerous allegations of negligence

     as more specifically described above There rs nothing m the record provided by the plaintiff

     that would give any indication that an ordinary layperson serving on a jury would be able to

    determme that any of those assertions on their face would properly lead to an inference that Dr

    Ali was negligence The doctnne of res tpsa loquttur does not alter the burden of proof that the

    plaintiff bears. Rather it allows a case to go forward without direct evidence of negligence in the

    form of medical testimony with an "inference" of negligence, Toogood, 824 A 2d 1140 (Pa.

    2003)

            Specifically, Ms, Muhammad has claimed that Dr. AH improperly placed surgical clips,

    failed to switch to an open procedure from a Iaparoscopic procedure and failed to appreciate

    and treat plaintiff's post-operative complaints of pain. Each of those clauns obviously

    implicates medtcal judgment and skill that would require professional medical evaluation. A

    lay person wrthout knowledge concernmg appropriate surgical technique and care in a gall

    bladder removal would not be able to infer that negligence occurred without an evidentiary

    record that included facts mdicatmg why the alleged errors were of such an obvious nature

    that an ordinary person could reasonably find negligence where no expert supported that

    conclusion. Toogood, 824 A 2d 1140 (Pa 2003) (re« tpsa loquuur apphes only in matters where

    the standard of care, breach of that standard, and causation are obvious). This record ts

    insufficient to allow a Jury to conclude that the "event is of a kind which ordinarily does not

    occur in the absence of negligence!'    Restatement (Second) of Torts § 328D(a)_

            This analysis rs equally applicable to the plaintiff's claims concerning the consequences

    of the alleged negligence A Jury would not be able to conclude without expert testimony that

    the asserted negligence necessitated a hepatic lobectomy and resection of the bile duct or led



                                                     8
. r·I
        . . .- ,

                   to chrome gastrointestinal illness, decornpensation of her liver, and aggravation of her

                   Hepatitis C and the necessity of a liver transplant

                           It rs also apparent that there is nothmg m the record outside the allegations of the

                   complamt to support predicate facts as well For example there is no factual mformation to

                   support the allegation that Dt Ali, whether negligent or not, didn't appreciate post operative

                   complaints of pain or that he encountered difficulty       in   identifymg the plamtiff's anatomy ..

                   Ms. Muhammad has not submitted any deposition testimony, affidavits or other proper

                   evidentiary information in support of her posmon ,

                           It is apparent that Ms. Muhammad has not met her burden of establishing a sufficient

                   factual record to meet her burden of proof as it exists in the posture of this case. While she is not

                   obligated to prove her case on summary Judgment in the same manner as would be required at

                   the time of trial she docs he,ve:to demonstrate that the factual record indicates that there are

                   mate~1alfactual disputes that would justify a trial. Herc without any expert evaluation and no

                   other evidennary manifestations of what actually occurred dunng the course of her care by Dr..

                   Ali outside herimtial pleading, the defendant is entitled to summary Judgment an appropriate

                   order will be entered accordingly,




                                                                      9
FATIMA MUHAMMAD,                                   IN THE COURT OF COMMON PLEAS
     PlamtJff

                              v
                                                   OFERIECOUNTY,PENNSYLVl\                                 g

AMJAD ALI, M D ,                                                                -or-        c.,,           :I
     Defendant                                     No 12078-2011               ~M           Cl)            :t
                                                                               o::.J
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                                            ORDER                              ~     t"')

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                                   ~~·~~~                                      ~~                     0
                                   ~r                                              ~        ~         ~

       AND NOW, this 23 day of 2015, upon consideration of the Defendant's Motion for-.-

Preclusion of Expert Testimony and Motion for Summary Judgement, and for the reasons set

forth m this Court's Memorandum, it ts hereby ORDERED, ADJUDGED and DECREED that

the Defendant's   Motton for Preclusion of Expert Testimony and Motion for Summary Judgement

ts GRANTED.


                                                   BY THE COURT



                                                                                                                 ''
                                                                                                                :!·
                                                                                                                ·1
                                                                                                                !:
                                                                                                                .i
cc        Fatimah Muhammad, Pro Se
          c/o      1920 Woodland Avenue
                   Eric, PA 16510

          Lisa Smith Presta, Esquire
