J. A25007/16


NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37

MARK W. SCHWALM,                        :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                          Appellant     :
                                        :
                     v.                 :
                                        :
RUPEN G. MODI, D.O.,                    :
HOLY SPIRIT HOSPITAL OF THE             :
SISTERS OF CHRISTIAN CHARITY,           :          No. 145 MDA 2016
AND NEW JERSEY/PENNSYLVANIA             :
EM-I MEDICAL SERVICES, P.C.             :


            Appeal from the Judgment Entered January 7, 2016,
            in the Court of Common Pleas of Cumberland County
                      Civil Division at No. 2013-03739


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 22, 2016

      Mark W. Schwalm appeals from the judgment entered January 7, 2016

for defendants/appellees in this medical malpractice action.    After careful

review, we affirm.

      The trial court has aptly summarized the facts of this matter as

follows:

                  We will start with a recitation of the facts in
           the light most favorable to [appellees] as the verdict
           winner.     [Appellant]’s girlfriend [(Leslie Shenk)]
           testified at trial that he was more quiet than usual
           and did not seem himself on the evening of April 7,
           2012. On the morning of April 8, 2012, they got out
           of bed at approximately 10:00 a.m.           While the

* Former Justice specially assigned to the Superior Court.
J. A25007/16


          girlfriend was in the kitchen making coffee,
          [appellant] was in the bathroom changing his
          clothes.    He testified that as he picked up his
          overnight bag, he “felt like a warmth and like the
          breath went out of [him].” When he came into the
          living room, his girlfriend saw him struggle to pick up
          a picture that had been knocked over. Minutes later,
          she noticed that he was struggling to drink his
          coffee. They went directly to the emergency room at
          Holy Spirit Hospital.

                At approximately 11:30 a.m. [appellant]
          arrived at the hospital. Dr. [Rupen G.] Modi[, D.O.,]
          examined him immediately upon arrival. [Appellant]
          reported that the left side of his face was drooping
          and weak and that he had had some difficulty
          drinking his coffee earlier that morning. He did not
          report any difficulty standing, walking, or additional
          weakness.[Footnote 13] [Dr. Modi] took a history of
          [appellant]’s symptoms and conducted both physical
          and neurological examinations. Dr. Modi recorded
          sudden onset of symptoms as thirty minutes prior.

                [Footnote 13] [Appellant] did not tell
                anyone at the emergency department
                about him struggling to pick up a picture
                frame.

                 A few moments later at 11:40 a.m., the triage
          nurse met with [appellant].      She recorded that
          [appellant] awoke at 10:00 a.m. with symptoms and
          had a loss of sensation in his left arm.        After
          reviewing the nurse’s note, [Dr. Modi] returned to
          examine [appellant]’s left arm. Upon examination,
          [appellant] reported that the sensation in both arms
          was the same and withdrew his complaint concerning
          his left arm.

                 [Dr.   Modi]   concluded   that   the   “most
          reasonable diagnosis” for [appellant]’s symptoms
          was Bell’s palsy. The third most common cause of
          Bell’s palsy is Lyme disease. [Appellant] reported to
          [Dr. Modi] that he had removed a deer tick from his
          abdomen approximately ten days prior. A key factor


                                   -2-
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            in [Dr. Modi]’s diagnosis of Bell’s palsy was the
            involvement of the left side of [appellant]’s forehead
            in his facial paralysis.[Footnote 23]

                  [Footnote 23] [Appellant] could not raise
                  his left eyebrow during the physical
                  examination. The jury heard testimony
                  that a stroke would allow continuing
                  function of the forehead whereas a lesion
                  of the facial nerve (Bell’s palsy) would
                  cut off nerve supply to both the upper
                  and lower face, leaving the forehead
                  paralyzed.

                   Before [appellant]’s discharge, [Dr. Modi] held
            a fifteen-minute conversation with [appellant] and
            his girlfriend regarding the differences between Bell’s
            palsy and stroke.         [Dr. Modi] also discussed
            instructions for [appellant] should his symptoms
            change or worsen.

                  After his discharge, [appellant] drove without
            incident from Camp Hill to his residence in Tower
            City, a distance of approximately 38 miles. He was
            examined the following morning by his family doctor
            who also diagnosed Bell’s palsy. Two days later
            [appellant] underwent a brain MRI, which revealed
            that he had, in fact, suffered a stroke.[Footnote 28]
            He was immediately admitted to the hospital.

                  [Footnote 28]   There is      no dispute
                  among the parties that       [appellant]’s
                  stroke occurred prior to     [Dr. Modi]’s
                  treatment of [appellant]     on April 8,
                  2012.

Trial court opinion, 4/7/16 at 2-3 (citations to the transcript omitted) (some

footnotes omitted).1



1
  Appellant accepts the factual and procedural history of the case as set forth
in the trial court’s Pa.R.A.P. 1925(a) opinion. (Appellant’s brief at 6.)


                                     -3-
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                    [Appellant] filed this medical malpractice
             action as a result of his treatment at the Emergency
             Department of Holy Spirit Hospital on the morning of
             April 8, 2012.         He alleged that Defendant
             Dr. Rupe[n] Modi was negligent in failing to diagnose
             that he had suffered a stroke. He contended that
             had he been correctly diagnosed, he would have
             received tPA[2] treatment which could have greatly
             limited the adverse effects of his stroke. A jury
             found that Dr. Modi was not negligent in his care and
             treatment of [appellant].[Footnote 1] [Appellant]
             filed a Motion for Post-Trial Relief which we denied
             on December 22, 2015.

                  [Footnote 1] The jury did not reach the
                  issues of causation and damages or
                  whether [Dr. Modi] was an agent of
                  Defendant Holy Spirit Hospital.

Id. at 1.

      This    timely   appeal     followed.       Appellant    complied     with

Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.3



2
  Tissue plasminogen activator (“tPA”) is a thrombolytic (a “clot-busting”
drug) to break up blood clots.
3
  The trial court noted that appellant’s Rule 1925(b) statement was 22 pages
long with 5 pages of exhibits. (Trial court opinion, 4/7/16 at 1 n.2.) The
trial court characterized it as “neither concise nor particularly helpful.” (Id.)
We caution appellant that filing an unnecessarily voluminous Rule 1925(b)
statement can result in waiver. Jiricko v. Geico Ins. Co., 947 A.2d 206,
210-214 (Pa.Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008)
(finding waiver where the appellant’s statement “reveals a deliberate
attempt to circumvent the meaning and purpose of Rule 1925(b) and to
overwhelm the court system”). Here, however, there is no evidence of bad
faith and all of appellant’s allegations of error relate to the testimony of
appellees’ experts, Dr. James Jaffe and Dr. James Gebel. (Trial court
opinion, 4/7/16 at 1.) The trial court did address these issues in a Rule
1925(a) opinion. Therefore, we will not find appellant’s issues waived on
appeal. See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417


                                      -4-
J. A25007/16


      Appellant has raised the following issues for this court’s review:

            A.     Did the trial court commit judicial error and/or
                   abuse its discretion in denying [appellant]’s
                   motion in limine and objections at trial in
                   permitting defendant’s expert, Dr. Gebel, to
                   testify beyond his role as an independent
                   medical consultant performing an independent
                   medical       examination      contrary       to
                   Pa.R.C.P. 4010 and testifying as an expert
                   beyond his qualifications, and contrary to
                   Pa.R.Evid. 702, 703, 704, and 705?

            B.     Did the trial court err and abuse its discretion
                   in denying [appellant]’s motion in limine and
                   objections at trial in permitting Dr. Jaffe to
                   testify beyond the scope of his qualifications
                   and contrary to Pa.R.Evid. 702, 703, 704 and
                   705?

            C.     Did the trial court commit judicial error and
                   abuse its discretion in permitting Doctors Gebel
                   and Jaffe to testify as to the standard of care
                   of an emergency room physician when neither
                   was qualified as an emergency room physician
                   and contrary to the order of the court that
                   neither would testify as to the standard of care
                   of an emergency room physician?

Appellant’s brief at 4 (capitalization deleted).

      “[W]hen reviewing the denial of a motion for new trial, we must

determine if the trial court committed an abuse of discretion or error of law

that controlled the outcome of the case.”          Estate of Hicks v. Dana

Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal




(Pa. 2007) (plurality) (waiver based on the number of issues raised is
inappropriate in the absence of bad faith).


                                      -5-
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denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).

             Admission of evidence is within the sound discretion
             of the trial court and we review the trial court’s
             determinations regarding the admissibility of
             evidence for an abuse of discretion. To constitute
             reversible error, an evidentiary ruling must not only
             be erroneous, but also harmful or prejudicial to the
             complaining party.

Id. at 961 (citations omitted). “Additionally, [e]videntiary rulings which did

not affect the verdict will not provide a basis for disturbing the jury’s

judgment.” Id. (internal quotation marks and citations omitted) (brackets in

original).

      Since all of appellant’s issues on appeal concern the expert testimony

of Dr. Gebel and Dr. Jaffe, we will briefly summarize their testimony.

James Jaffe, M.D., testified via videotaped deposition on July 10, 2014.

Dr. Jaffe is a board-certified neurointerventional radiologist.      (Notes of

testimony, 7/10/14 at 6, 8.)     Dr. Jaffe currently practices at Holy Cross

Hospital in Silver Spring, Maryland. (Id. at 9.) As part of his practice, he

assesses emergency room patients suspected of having a stroke. (Id. at 7.)

Dr. Jaffe is consulted regarding whether or not patients have had or are

having a stroke, what type of stroke (ischemic or hemorrhagic), and whether

they are eligible for catheter-based therapies, including tPA therapy. (Id.)

      Dr. Jaffe reviewed numerous records, including appellant’s hospital

records, the records of his primary care physician, Dr. Edward Lentz, and

appellant’s deposition testimony.   (Id. at 37-38.)    According to Dr. Jaffe,



                                     -6-
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even if appellant had been diagnosed as having a stroke, he would not have

been a candidate for tPA therapy due to the uncertain time of onset of the

condition.   (Id. at 41.)    Dr. Jaffe characterized appellant’s stroke as a

“wake-up stroke”:

             From the record of Holy Spirit Hospital, it states that
             the patient awoke with symptoms. So, to me, that’s
             a wake-up stroke. We don’t know the exact timing
             of the stroke. Time is brain. It could have occurred
             anywhere from the time he went to sleep.

             Q[.] And why is that important?

             A[.]   Because studies have shown if tPA is given
                    after four and a half hours of the onset of
                    stroke, it actually causes more harm to
                    patients than benefit.

Id. at 46.

      Dr. Jaffe characterized this case as “very confusing” as to the onset of

appellant’s symptoms:

             Well, I think, as we have demonstrated here, that
             this is a very confusing case with confusing timing as
             to onset of symptoms.        As I read through the
             depositions, there is [sic] multiple different times of
             symptoms, multiple different times of when
             symptoms are reported.        In the actual medical
             record, which we have to take as fact, it says the
             patient awoke with symptoms. That means, to me
             as a physician taking care of stroke patients, there is
             no exact timing of when the stroke began. If you
             have no exact timing of when the stroke began, you
             have to try to get witnesses to tell you when the last
             time the patient was witnessed as normal. As far as
             I can see from the records and fact, that was at
             midnight on, whether you want to say April 7th or
             April 8th, 2012. Also in the record of deposition of
             Ms. Shenk, she said he wasn’t feeling very well. He


                                      -7-
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            wasn’t quite himself. And my practice of patients
            I’ve seen, one of the early signs of stroke that I hear
            from family members, loved ones, is that they
            weren’t feeling quite right, they weren’t themselves.
            And that can be very confusing with stroke. Stroke
            is a very confusing diagnosis to make. A lot of
            patients come in to the emergency rooms that I’ve
            seen, when I’ve been in the emergency room, who
            have been diagnosed as psychotic. They later turn
            out to have a stroke. They weren’t feeling quite
            right. It can be one of the signs of stroke. So, when
            I look at the record and the records, in fact, that
            possibly the stroke began the evening before. But as
            far as I can tell from the medical record that’s
            written, is that he awoke with stroke, so, there is no
            exact timing. I think the other fact that comes in
            here is that there weren’t hard and fast stroke
            symptoms.       There was another diagnosis that
            explained what he was having, so that the physician
            who is taking care of him, from the record, thought
            in his best medical opinion that it was reasonable
            that this gentleman was not having a stroke, but was
            suffering from Bell’s palsy, of which IV tPA will have
            no benefit, will only cause harm.

Id. at 54-55.

      Dr. Jaffe testified that before tPA therapy can be administered, it must

be certain that the patient is actually having a stroke:

            Q[.] Now, is it fair to say that before any patient is
                 given tPA or a catheter-based treatment for an
                 acute stroke that you essentially have to be
                 sure that the patient is having a stroke?

            A[.]   Absolutely. Any of these therapies, whether
                   it’s IV [(intravenous)] tPA, IA [(intra-arterial)]
                   tPA or the catheters I use to remove clots,
                   they can have devastating complications that
                   can make a stroke patient worse than his
                   natural history of stroke.




                                      -8-
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             Q[.] Can you explain what you mean by that in
                  further detail, please?

             A[.]   IV tPA, for example, can cause a brain
                    hemorrhage, which can kill a patient. The
                    catheters that we use to remove clots can kill a
                    patient. And some instances, again, some of
                    these methodologies, if used improperly, will
                    cause more harm to a patient than benefit.

Id. at 59. Dr. Jaffe also testified that even among those stroke patients who

received IV tPA within the 4½ hour time window, 89% showed no benefit

over their natural stroke history. (Id. at 59-60.)

      On cross-examination, Dr. Jaffe was questioned regarding appellant’s

statement that he woke up at 9:00 a.m. and used the bathroom without

symptoms. (Id. at 68.) Dr. Jaffe explained that appellant could have used

the bathroom at 9:00 a.m. or even brushed his teeth when he got up again

at 10:00 a.m. while having a stroke:

             I recognize that patients who have strokes a lot of
             times don’t recognize they’re having strokes. And
             just like now, he might not have and the first time
             the girlfriend recognized it, because he was dropping
             things. A lot of times we wake up in bed, we sit
             there in bed, we don’t necessarily do any activity and
             yet we have had a stroke and we fall back to sleep
             again. So, I didn’t disregard that, but that doesn’t
             mean anything to me. It doesn’t mean he didn’t
             already have a stroke.

Id. at 68.

             My point is, is that he didn’t have any motor
             weakness. I would expect him to be able to brush
             his teeth. I would expect him to be able to go to the
             bathroom. As we saw, even when he went to Holy
             Spirit, he still was not having any motor weakness.


                                      -9-
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             That doesn’t mean his stroke wasn’t started before
             that, nor does it mean his stroke didn’t happen at
             9:00 when he woke up.

Id. at 70.

      James M. Gebel, Jr., M.D., testified at trial on July 18, 2014. Dr. Gebel

is a stroke neurologist and is currently the chair of neurology at Akron

General Medical Center in Akron, Ohio. (Notes of testimony, 7/18/14 at 5.)

Dr. Gebel performed an independent medical examination (“IME”) of

appellant and also prepared an expert report.         (Id. at 8-11.)    As did

Dr. Jaffe, Dr. Gebel testified that due to the uncertainty of the onset of

appellant’s symptoms, he would not have been a viable candidate for tPA

therapy:

             Q[.] Doctor, having reviewed these materials, have
                  you been able to identify precisely when
                  Mr. Schwalm’s onset of symptoms -- can you
                  give me a timeframe for that?

             A[.]   Again, sir, I don’t know how I can. I mean, I
                    think if we take what his girlfriend is saying
                    about -- you know, she uses exactly the same
                    phraseology, as I recall, in the e-mail about
                    the evening before versus the same day. If
                    that is what she observed, and if, in fact, that
                    is correct, I think that is a plausible -- you
                    know, the most plausible timeframe for it
                    starting. If what Mr. Schwalm told me, which
                    is that he woke up at 9:00, went to urinate,
                    was completely fine and asymptomatic and had
                    no problems, spoke to his girlfriend, and then
                    an hour later woke up with the symptoms,
                    then I’d have to place the onset at 9 a.m. If I
                    take what the neurologist who saw him said,
                    which is that he woke up, and as soon as he
                    got up started getting dressed and had trouble


                                      - 10 -
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                  dressing, then, again, we’re back to the day
                  before or the night before when he went to
                  bed.     I think my problem is -- and then
                  Dr. Modi has another history. The triage nurse
                  has a different history, saying he had
                  numbness in his face as opposed to trouble
                  dressing. As an expert, I don’t know which
                  one I can say with certainty is the correct one.
                  I think part of the problem with this case, quite
                  frankly, is we’ve got literally five or six
                  different renditions of what transpired, which,
                  of course, makes it very difficult to pin down
                  an exact time the stroke began and what the
                  exact symptoms were because we have
                  conflicting information.

           Q[.] How does an inability to identify the onset of
                the symptoms impact a patient’s candidacy for
                IV tPA?

           A[.]   Well, you have to have either one of two
                  things. You either have to witness, you know,
                  and know for sure the moment the symptoms
                  begin, which this is called a witness onset, and
                  that’s the time that you take. You have a
                  maximum of either three or four and a half
                  hours to give the medication, depending on the
                  particular person’s circumstances, so that’s
                  when the sort of clock, if you will, starts to
                  tick. When it’s an unwitnessed onset of stroke
                  symptoms, then you have to take the time that
                  the person was last definitely known to be well
                  as opposed to the first time they were found to
                  be unwell.

Id. at 32-33.

     Dr. Gebel also testified that tPA therapy can be dangerous if

administered to a patient who is not having a stroke:

           Q[.] Doctor, the jury has heard from a number of
                witnesses that you need to have a confirmed
                diagnosis of a stroke and you need a confirmed


                                    - 11 -
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                  onset of symptoms for giving intravenous tPA.
                  Are those rules or guidelines that you
                  subscribe to?

           A[.]   Oh, certainly. I mean, if you’re not sure the
                  person is having a stroke, you don’t want to
                  give them tPA, because it has a 6.4 percent
                  chance of causing hemorrhaging in the brain,
                  serious hemorrhaging that causes damage and
                  symptoms, if it’s given within three hours.
                  Then if it’s given within the three to four and a
                  half hours, what we call the bonus or extended
                  time window, that number goes up to
                  8.9 percent. You can’t take a medication that
                  has a 6 to 9 percent chance of causing
                  hemorrhaging in the brain and give it to
                  someone unless you’re pretty darn sure they’re
                  having a stroke.      If you think someone is
                  having a seizure or some other condition or
                  you’re not sure or you’re not sure when the
                  stroke began, you know, you don’t want to
                  give it. Again, the sooner you give it the
                  better it works. It’s a lot better if you give it
                  within three hours than if you get past three
                  hours and you’re getting out to that four and a
                  half hour timeframe.

Id. at 35-36.

     We now turn to appellant’s arguments on appeal.           First, appellant

contends that the trial court erred by allowing Dr. Jaffe and Dr. Gebel to

testify that appellant suffered a “wake-up stroke” without providing the

specific references required under Pennsylvania Rules of Evidence 702, 703,

704, and 705. (Appellant’s brief at 16.) According to appellant, Dr. Modi’s

failure to consult with a neurologist or the stroke team resulted in

“pure speculation” as to whether or not appellant would have received tPA

therapy. (Id. at 16-17.)


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      Rules 702 through 705, upon which appellant relies, provide as

follows:

           A witness who is qualified as an expert by
           knowledge, skill, experience, training, or education
           may testify in the form of an opinion or otherwise if:

           (a)   the expert’s scientific, technical, or other
                 specialized knowledge is beyond that
                 possessed by the average layperson;

           (b)   the expert’s scientific, technical, or other
                 specialized 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.

Pa.R.E. 702.

           An expert may base an opinion on facts or data in
           the case that the expert has been made aware of or
           personally observed. If experts in the particular field
           would reasonably rely on those kinds of facts or data
           in forming an opinion on the subject, they need not
           be admissible for the opinion to be admitted.

Pa.R.E. 703.

           An opinion is not objectionable just because it
           embraces an ultimate issue.

Pa.R.E. 704.

           If an expert states an opinion the expert must state
           the facts or data on which the opinion is based.

Pa.R.E. 705.

           Accordingly, Kozak [v. Struth, 531 A.2d 420 (Pa.
           1987),] requires disclosure of the facts used by the
           expert in forming an opinion. The disclosure can be


                                   - 13 -
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            accomplished in several ways. One way is to ask the
            expert to assume the truth of testimony the expert
            has heard or read. Kroeger Co. v. W.C.A.B., 101
            Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v.
            Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another
            option is to pose a hypothetical question to the
            expert. Dietrich v. J.I. Case Co., 390 Pa. Super.
            475, 568 A.2d 1272 (1990); Hussey v. May
            Department Stores, Inc., 238 Pa. Super. 431, 357
            A.2d 635 (1976).

Id., Comment.

      As detailed above, the evidence as to the onset of appellant’s

symptoms was conflicting and confusing, at best.         However, there was

evidence to support the conclusion that appellant suffered a “wake-up

stroke,” including the neurologist’s history that as soon as appellant woke up

he had trouble getting dressed and his girlfriend’s statement that he was not

acting like himself the evening prior. It is true, as appellant points out, that

there was contrary evidence that his symptoms did not begin until after he

awoke at 10:00 a.m. and tried to pick up a photograph off the floor.

However, as Dr. Jaffe testified, the fact that it was impossible to pinpoint

precisely when appellant’s symptoms began meant that he was not a

candidate for tPA:

            I think nothing’s real exact in this case and I think
            that’s the whole problem with this case and why he
            wasn’t a good candidate for IV tPA. There is [sic] all
            sorts of symptoms all over the place. There is [sic]
            all sorts of different times waking up. There is [sic]
            all sorts of things the night before. There is [sic]
            different timings in all these records, which does
            happen in the medical record, unfortunately, but I
            think this builds towards my opinion, as a reasonable


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             physician, that there is no way to exactly time what’s
             going on here.

Notes of testimony, 7/10/14 at 79.

      The defense experts’ opinions were based on the medical records and

were not “pure speculation” as appellant suggests; rather, they testified that

even if Dr. Modi had correctly diagnosed an ischemic stroke, appellant would

not have received tPA therapy because it was impossible to determine the

onset of his symptoms.      If appellant’s stroke began the night before, as

suggested by his girlfriend, or he had suffered a stroke sometime during the

night, tPA therapy would have been ineffective and perhaps even dangerous.

Furthermore, both Dr. Jaffe and Dr. Gebel were causation experts.        They

were not called to testify on the standard of care. The jury never reached

the issue of causation because they found Dr. Modi was non-negligent.

      Next, appellant claims that the trial court erred by allowing Dr. Gebel

to be “converted” from a Pa.R.C.P. 4010 IME expert into a Pa.R.C.P. 4003.5

liability expert. (Appellant’s brief at 17.) According to appellant, an IME is

limited to the issue of damages and there is no case law permitting a

Rule 4010 damages expert to testify as a Rule 4003.5 liability expert. (Id.

at 20-24.)

      Rule 4010 provides, in relevant part, as follows:

             (a)(1)      As used in this rule, “examiner”
                         means    a    licensed   physician,
                         licensed   dentist    or   licensed
                         psychologist.



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                  (2)      When the mental or physical
                           condition of a party, or of a person
                           in the custody or under the legal
                           control   of    a    party,   is   in
                           controversy, the court in which the
                           action is pending may order the
                           party to submit to a physical or
                           mental     examination      by    an
                           examiner or to produce for
                           examination the person in the
                           party’s custody or legal control.

                  (3)      The order may be made only on
                           motion for good cause shown and
                           upon notice to the person to be
                           examined and to all parties and
                           shall specify the time, place,
                           manner, conditions and scope of
                           the examination and the person or
                           persons by whom it is to be made.

                  (4)(i)       The person to be examined
                               shall have the right to have
                               counsel         or     other
                               representative       present
                               during the examination.
                               The      examiner’s      oral
                               interrogation of the person
                               to be examined shall be
                               limited       to     matters
                               specifically relevant to the
                               scope of the examination.

                               Note: Ordinarily, the facts
                               giving rise to liability are
                               not    germane     to     an
                               examination     and      the
                               information    which     the
                               examiner seeks should be
                               limited to facts of liability
                               germane to the issue of
                               damages.

Pa.R.C.P. 4010.


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     Rule 4003.5 provides, in relevant part, as follows:

           (a)   Discovery of facts known and opinions held by
                 an expert, otherwise discoverable under the
                 provisions of Rule 4003.1 and acquired or
                 developed in anticipation of litigation or for
                 trial, may be obtained as follows:

                 (1)   A      party      may        through
                       interrogatories require

                       (A)   any other party to identify
                             each person whom the
                             other party expects to call
                             as an expert witness at
                             trial and to state the
                             subject matter on which
                             the expert is expected to
                             testify and

                       (B)   subject to the provisions
                             of subdivision (a)(4), the
                             other party to have each
                             expert so identified state
                             the substance of the facts
                             and opinions to which the
                             expert is expected to
                             testify and a summary of
                             the grounds for each
                             opinion.       The   party
                             answering               the
                             interrogatories may file as
                             his or her answer a report
                             of the expert or have the
                             interrogatories answered
                             by the expert.          The
                             answer or separate report
                             shall be signed by the
                             expert.

                 (3)   A party may not discover facts
                       known or opinions held by an
                       expert who has been retained or
                       specially employed by another


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J. A25007/16


                          party in anticipation of litigation or
                          preparation for trial and who is not
                          expected to be called as a witness
                          at trial, except a medical expert as
                          provided in Rule 4010(b) or except
                          on order of court as to any other
                          expert     upon    a   showing      of
                          exceptional circumstances under
                          which it is impracticable for the
                          party seeking discovery to obtain
                          facts or opinions on the same
                          subject by other means, subject to
                          such restrictions as to scope and
                          such provisions concerning fees
                          and expenses as the court may
                          deem appropriate.

           (c)      To the extent that the facts known or opinions
                    held by an expert have been developed in
                    discovery proceedings under subdivision (a)(1)
                    or (2) of this rule, the direct testimony of the
                    expert at the trial may not be inconsistent with
                    or go beyond the fair scope of his or her
                    testimony in the discovery proceedings as set
                    forth in the deposition, answer to an
                    interrogatory, separate report, or supplement
                    thereto. However, the expert shall not be
                    prevented from testifying as to facts or
                    opinions on matters on which the expert has
                    not been interrogated in the discovery
                    proceedings.

Pa.R.C.P. 4003.5.

     Here, Dr. Gebel testified that he was retained to perform an IME of

appellant and also to prepare an expert report pursuant to Rule 4003.5.

(Notes of testimony, 7/18/14 at 8.) Appellant was transported to Ohio for

the IME, and Dr. Gebel gave appellant a copy of his notes from the exam.

(Id. at 9, 11-12.) It is undisputed that appellant was also provided with a



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copy of Dr. Gebel’s May 16, 2014 expert report as required by Rule 4003.5

and that he testified consistently with that report. While it is true that the

purpose of an IME is to assess damages, appellant cites no case law for the

proposition that an IME expert is precluded from also testifying as to liability.

There is nothing to suggest that Rules 4010 and 4003.5 are mutually

exclusive. This claim fails. The trial court did not err in permitting Dr. Gebel

to testify as to both causation and damages, consistent with his report.4

      Next, appellant argues that Dr. Gebel failed to comply with Rules 702

through 705 and that defense counsel should have used hypothetical

questions.    (Appellant’s brief at 25.)   According to appellant, Dr. Gebel’s

opinion testimony was based upon “speculation” that appellant was having a

stroke the night before he reported to the ER.         (Id. at 26.)    Appellant

contends that what the stroke team may or may not have done had Dr. Modi

correctly diagnosed a stroke is speculation. (Id.)

      While Rule 705 permits the use of hypothetical questions, they are not

required.    Pa.R.E. 705, Comment.     All that is required is that the expert

disclose the facts used in forming his or her opinion. Id. Here, Dr. Gebel

based his opinion on all of the medical records and the testimony, including

Ms. Shenk’s statement that appellant was not acting normally the night

before and the Pinnacle Health neurologist’s report that when he woke up



4
  Again, we note that the jury never reached the issues of causation or
damages, since they found Dr. Modi was not negligent.


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J. A25007/16


the next morning, appellant had difficulty getting dressed.        Dr. Gebel

testified that in his expert opinion, appellant would not have been a good

candidate for IV tPA therapy based on the uncertainty of when the stroke

began.    Therefore, Dr. Gebel’s testimony was not based on mere

“speculation” as appellant contends.

     Appellant also argues that Dr. Gebel gave standard of care testimony

in violation of the pre-trial agreement and that Dr. Gebel’s opinion ignored

undisputed evidence that appellant’s symptoms did not manifest themselves

until 10:15 a.m. on April 8, 2012. (Appellant’s brief at 27-31.) Dr. Gebel

did not give standard of care testimony. He and Dr. Jaffe were called solely

to provide testimony on the issues of causation and damages. (Trial court

opinion, 4/7/16 at 5-6.) In fact, appellant opened the door to standard of

care testimony during his cross-examination of Dr. Gebel:

           Q[.] If we now turn to table 9. Is this what an
                emergency room is supposed to do?

           A[.]   Well, again, this is -- if you’re suspecting
                  someone is having an acute ischemic stroke --
                  that’s the kind, again, where a clot cuts off
                  circulation to the brain as opposed to a
                  hemorrhage in the brain -- these are the tests
                  that are recommended for patients with a
                  suspected acute, meaning recent, ischemic
                  stroke, yes, sir.

           Q[.] Let’s start at the top.

           A[.]   Sure.

           MR. CHAIRS: Judge, I would like to object at this
           point.  He asked specifically is this what an


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J. A25007/16


            emergency room is supposed to do. Dr. Gebel has
            been very clear with the Court that he is not here to
            testify to standards of care.

            MR. ANGINO: My gosh, he has testified completely
            as to this being not a candidate for tPA. This is
            exactly in that area.

            THE COURT: All right. I’ll overrule the objection,
            but that opens it up for redirect.

            MR. ANGINO: Absolutely.

Notes of testimony, 7/18/14 at 49-50.

       Furthermore, contrary to appellant’s argument on appeal, there was

not an undisputed “witness onset” time of 10:15 a.m. (Appellant’s brief at

31.)   Ms. Shenk indicated that appellant’s symptoms could have begun as

early as the evening of April 7, 2012.      Appellant told the neurologist on

April 12, 2012, that he woke up on April 8th with symptoms including

difficulty getting dressed and facial numbness.      As thoroughly set forth

above, Dr. Gebel and Dr. Jaffe testified that, given the conflicting evidence

as to timing of onset of appellant’s symptoms, it was impossible to pinpoint

with any certainty when appellant’s stroke began. Therefore, appellant was

not a candidate for tPA catheter-based therapy, even if Dr. Modi had

diagnosed a stroke as opposed to Bell’s palsy. These opinions were based

on the evidence of record.   Dr. Gebel and Dr. Jaffe were not required to

accept testimony that appellant’s symptoms began at 10:15 a.m. when he

attempted to pick up the photograph and had difficulty drinking his coffee,




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J. A25007/16


when other evidence indicated that appellant’s symptoms began earlier,

perhaps even the previous evening.

        Finally, appellant argues that Dr. Jaffe was permitted to give

emergency room standard of care testimony in violation of a pre-trial order

and that he violated Rule 705 by testifying from the “totality” of the

evidence where the evidence was in conflict. (Appellant’s brief at 32-40.)

        The trial court granted appellant’s motion in limine to limit Dr. Jaffe’s

testimony to a discussion of diagnosis of stroke, the use and efficacy of tPA

therapy, and whether appellant would have been a candidate for tPA or

other catheter-based therapy for an acute stroke.          (Trial court opinion,

4/7/16 at 6.)     Dr. Jaffe is not an emergency room physician and did not

testify regarding the standard of care for an emergency room physician.

(Id.)    Appellant points to Dr. Jaffe’s testimony that in his opinion as a

physician who cares for stroke patients, Dr. Modi did a complete neurological

examination and acted in a medically reasonable fashion.              (Notes of

testimony, 7/10/14 at 63-64.)       However, as explained by the trial court,

“The statement . . . refers to the standard of care applicable to physicians

responsible for the diagnosis of stroke. Dr. Jaffe’s experience treating stroke

patients every day qualified him to testify to the standard of care which is

observed by physicians diagnosing stroke.” (Trial court opinion, 4/7/16 at 6,




                                      - 22 -
J. A25007/16


n.45.) Dr. Jaffe did not violate the pre-trial motion in limine by testifying to

the standard of care for an emergency room physician.5

      Appellant also argues that under Rule 705 and Kozak, an expert

witness must provide the case-specific factual basis for his or her opinion,

and cannot endorse a particular version of contradictory evidence, which is

for the jury. (Appellant’s brief at 39-40.)

            For over a century, we have consistently held that an
            expert’s comment on the totality of the evidence,
            where the evidence is in conflict, improperly
            impinges upon the jury’s exclusive province.       In
            1885, Mr. Justice Green declared that “[t]he [expert]
            witness can not be asked to state his opinion upon
            the whole case, because that necessarily includes the
            determination of what are the facts, and this can
            only be done by the jury.”              Yardley v.
            Cuthbertson, 108 Pa. 395, 450, 1 A. 765, 773
            (1885). Following Yardley, a litany of decisions
            have reiterated the principle that an expert cannot
            weigh contradictory evidence and place his
            imprimatur upon a particular version. Our general
            commitment to the sanctity of the jury’s role as
            factfinder   was     recently   re-emphasized       in
            Commonwealth v. Seese, 512 Pa. 439, 517 A.2d
            920 (1986).

Kozak, 531 A.2d at 422-423 (additional citations omitted).

      Appellant simply repeats many of the same arguments made with

respect to Dr. Gebel. Again, Dr. Jaffe’s testimony indicates that he did not

adopt any particular version of competing evidence. Indeed, the whole point


5
  We also note       that David J. Karras, M.D., Dr. Modi’s standard of care
expert, testified   that Dr. Modi met the standard of care for an emergency
room physician.      (Id. at 8.) The jury apparently agreed, since they did not
reach the issues    of causation and damages.


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J. A25007/16


was that with all of the contradictory versions of when appellant first

exhibited symptoms of a stroke, it would be impossible to determine the

time of onset which would exclude appellant as a candidate for tPA therapy.

Dr. Jaffe   testified   on   cross-examination   when   questioned    regarding

Ms. Shenk’s statement that appellant was having trouble drinking his coffee

on the morning of April 8, 2012, followed by left-sided facial weakness and

slurring of his speech, as follows:

             And this is exactly what I’m saying.         Is that,
             sometimes histories can be extremely inaccurate and
             people get mixed things from different people. They
             don’t always get the accurate history. And that’s the
             whole problem with giving IV tPA. It seems like
             everything here is a bit of a mishmash. I, as a
             physician, evaluating this see a lot of different
             stories and I don’t know exactly what’s going on
             here. I don’t know the exact timing of this. The
             symptoms are somewhat vague. And I’ve got to be
             honest with you, this is why people don’t give IV tPA.

Notes of testimony, 7/10/14 at 78-79. On redirect, Dr. Jaffe testified that

the nursing triage note from Holy Spirit, indicating that appellant awoke that

morning at 10 a.m. with numbness in the left side of his face, as well as the

neurologist’s report from Pinnacle Health, which stated that appellant woke

up on April 8th with numbness in his left upper extremity, difficulty getting

dressed, facial numbness and drooling out of the left side of his mouth, were

consistent with his opinion that, at best, appellant suffered a “wake-up

stroke” which would rule out tPA therapy. (Id. at 83-86.) As such, this is a

case where the contradictory nature of all the evidence supports the expert’s



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J. A25007/16


opinion regarding lack of causation.     Appellees’ experts did not have to

accept any particular version of conflicting evidence in order to render an

opinion.   The fact that appellant disagreed with their conclusions did not

make them inadmissible.

      For these reasons, we determine that the trial court did not err in

denying appellant’s motion for a new trial.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




                                    - 25 -
