J-A33042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALDIS RUTYNA AND MARY JANE                        IN THE SUPERIOR COURT OF
RUTYNA,                                                 PENNSYLVANIA

                         Appellants

                    v.

WILLIAM S. SCHWEERS, JR.,

                         Appellee                      No. 895 WDA 2016


                   Appeal from the Order Entered June 1, 2016
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 07-025594
BEFORE:       LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*


DISSENTING MEMORANDUM BY SOLANO, J.:                  FILED MARCH 27, 2017

        I respectfully dissent.   The Rutynas should have been granted a

continuance so that they could find a new medical expert. The Rutynas did

not learn until May 10, 2016 — less than one month before the scheduled

start of trial — that their medical expert, Dr. Mark Foster, had agreed on

April 29, 2016, “not to serve as an expert witness adverse to UPMC, any of

its affiliated entities, or any of its physicians or other health care providers,

in any pending or future matter in any jurisdiction.”      UPMC is the medical

facility allegedly responsible for the injuries to Mr. Rutyna that are at issue in

this case.    There is no evidence that the Rutynas were negligent in not

learning of Dr. Foster’s agreement sooner.          Indeed, their counsel had

contacted Dr. Foster just one day before the date of the agreement to

*
    Retired Senior Judge assigned to the Superior Court.
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confirm Dr. Foster’s preparation for trial, and Dr. Foster gave no indication

at that time that he was entering into an agreement not to testify on the

Rutynas’ behalf. The Rutynas therefore were blindsided.

      The Rutynas point out that the Foster agreement was negotiated on

behalf of UPMC by the same law firm that represents Attorney Schweers, the

appellee in this action, and that the attorney for UPMC and Schweers

obtained a continuance of the scheduled trial date in this case just a few

months before final execution of the Foster–UPMC agreement.         They raise

various suspicions of misconduct relating to that timing.          The Court

concludes that those suspicions are unfounded, and that may be correct.

But that does not mean that the Rutynas were not entitled to a continuance

to find a new medical expert after Dr. Foster disappeared pursuant to his

agreement with UPMC.

      Applying what resembles a “no harm/no foul” analysis, the Court

suggests that Dr. Foster’s last-minute unavailability pursuant to his

agreement with UPMC does not matter because Dr. Foster, who is still

licensed and engaged in clinical practice, was not qualified to provide expert

testimony under the MCARE Act. But determining whether an expert is

qualified under the MCARE Act generally requires an evidentiary hearing and

questioning of the proposed expert in a voir dire. Vicari v. Spiegel, 989

A.2d 1277, 1284 (Pa. 2010).         The trial court ruled on Dr. Foster’s

qualifications without ever conducting a voir dire, and, as the Majority points


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out, the trial court could not conduct that voir dire because Dr. Foster’s

agreement with UPMC made Dr. Foster unavailable to testify at a hearing.

The Court’s analysis on this issue therefore is circular.

      The Court also makes an independent determination — apparently, as

a matter of law — that Dr. Foster was not qualified to testify under MCARE

because Schweers submitted an affidavit filed by Dr. Foster in another case

that stated that he “no longer practices as an orthopedic surgeon.” Citing

Section 512(c)(2) of the MCARE Act, 40 P.S. § 1303.512(c)(2), the Court

notes that an expert testifying as to a physician’s standard of care must

practice “in the same subspecialty as the defendant physician or in a

subspecialty which has a substantially similar standard of care for the

specific care at issue.”   As the Supreme Court pointed out in Vicari, 989

A.2d at 1283-86, Section 512 requires a fact-intensive inquiry.       Section

512(e) states that the trial court may waive the requirements of Section

512(c)(2) “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 P.S. § 1303.512(e).     The trial court declined to exercise its

discretion to waive the Section 512(c)(2) requirements, stating that it did

not “see any basis for doing so.” N.T., 6/1/2016, at 70. But it made that

decision without hearing Dr. Foster at a voir dire — again, because the UPMC


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agreement made Dr. Foster unavailable. I believe it was improper to make

a determination regarding Dr. Foster’s qualifications without a proper

evidentiary hearing.

     Just a few months ago, this Court concluded that Dr. Foster is

qualified to testify as an expert on the standard of care in an MCARE case.

Price v. Catanzariti, 2016 WL 6946476 (Pa. Super., Nov. 28, 2016) (non-

precedential memorandum; No. 1886 WDA 2014), pet. for allow. of appeal

filed, No. 529 WAL 2016 (Pa., Dec. 28, 2016). The Court says we may not

consider the decision in Price because it is an unpublished memorandum

and such a decision “shall not be relied upon or cited” under our Internal

Operating Procedures. See 210 Pa. Code § 65.37. I agree that the current

IOP precludes reliance on the reasoning or legal holding set forth in a

memorandum decision. But it does not preclude us from taking into account

the fact that Dr. Foster was determined to be a qualified expert in a very

recent case — particularly given that we decided Price following a remand

order from the Supreme Court that directed us to decide that issue.     See

Price v. Catanzariti, 2016 WL 4989968 (Pa., Sept. 19, 2016) (No. 177

WAL 2016). The point is not that our holding in Price is controlling here or

that the reasoning of our memorandum should be followed here. Rather, it

is the fact that Dr. Foster was recently held on appeal to be a qualified

expert in an MCARE case, which suggests that we should not now be quick

to deem him unqualified as a matter of law. Price shows that Dr. Foster’s


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lack of qualifications is not so clear that we should use that conclusion as a

basis for holding that the Rutynas were not harmed by the disappearance of

their expert on the eve of trial.

      It may be that an evidentiary record would establish that Dr. Foster

was not qualified to give expert testimony in this case.     But the Rutynas

were entitled to try to prove otherwise at a hearing, and because the Foster–

UPMC agreement deprived them of that opportunity, I believe that the

Rutynas were entitled to a continuance to try to find a new expert.

      I understand that this case has been pending for more than 10 years,

that it has been before this Court twice before, and that the trial court had

an understandable desire to put this matter to an end. But the convoluted

history of this litigation only highlights the serial misfortunes that the

Rutynas have faced as they have tried to obtain compensation for their

alleged injuries.   The unavailability of a material witness is an authorized

basis for granting a continuance.        Pa. R. Civ. P. 216(A)(3).        The

unavailability of Dr. Foster was due to no fault of the Rutynas and could not

have been foreseen by them.         I therefore believe it was an abuse of

discretion to deny a continuance so that they could obtain a new expert, and

I therefore respectfully dissent.




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