J-A33035-14

                                   2015 PA Super 21



NIAJAH DEEDS, A MINOR BY HER LEGAL                 IN THE SUPERIOR COURT OF
GUARDIAN, JULIA RENZULLI                                 PENNSYLVANIA

                            Appellant

                       v.

UNIVERSITY OF PENNSYLVANIA
MEDICAL CENTER, HOSPITAL OF THE
UNIVERSITY OF PENNSYLVANIA AND
TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA

                            Appellees                    No. 755 EDA 2014


                   Appeal from the Order of January 28, 2014
              In the Court of Common Pleas of Philadelphia County
                   Civil Division at No.: 2558 May Term, 2011


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.:                                 FILED JANUARY 30, 2015

       In this medical negligence action, Niajah Deeds, a minor by her legal

guardian, Julia Renzulli, appeals from the jury verdict in favor of the

University of Pennsylvania Medical Center, Hospital of the University of

Pennsylvania (“HUP”), and Trustees of the University of Pennsylvania

(“Trustees”) (collectively, “Appellees”).      Following due review, we reverse

and remand for a new trial.

       The trial court set forth the following facts:1

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A33035-14


      On November 27, 2000, [Deeds’] mother, Tamika Peterson,[ 2]
      presented to HUP with back and abdominal pain. She was
      diagnosed with “common discomfort of pregnancy” and given
      preterm labor instruction sheets.       She again presented on
      January [18], 2001 with complaints of headache, uterine
      contractions, and blurred vision. She reported cocaine and
      cigarette use. Ms. Peterson’s records also indicated a physically
      small placenta and history of sickle cell disease, and physical
      trauma. Ms. Peterson was evaluated and instructed to return for
      a follow up visit on January 20, 2001. She was also given an
      instruction sheet for warning signs of preeclampsia.

      Ms. Peterson did not return to HUP until 6:20 p.m. on January
      20, 2001 with complaints of vaginal bleeding. Ms. Peterson
      suffered a placental abruption and gave birth via an emergency
      cesarean section. [Deeds] was born with severe birth defects.

Trial Court Opinion (“T.C.O.”), 5/21/2014, at 2.        Renzulli, Deeds’ legal

guardian, filed suit on Deeds’ behalf on May 23, 2013, alleging that

Appellees negligently failed to diagnose Peterson with preeclampsia when

she was seen on January 18, 2001. The matter proceeded to a jury trial on

October 25, 2013. At the end of the first day of trial, Deeds informed the

court that the parties had stipulated that “all the people who provided

medical treatment to Ms. Peterson were agents of Defendant HUP [and]

asked the [c]ourt to dismiss the other defendants from the case.” Id. The

                       _______________________
(Footnote Continued)
1
       The Honorable Gary F. DeVito retired after presiding over the jury trial.
The Honorable Mark I. Bernstein was assigned to write the opinion of the
trial court.
2
     Ms. Peterson is not a party to this case. In 2008, Deeds was removed
from Ms. Peterson’s home and placed in the foster care system. In October
of 2008, Julia Renzulli became Deeds’ foster parent, and Deeds’ legal
guardian in late 2009.




                                            -2-
J-A33035-14



court denied the motion to dismiss the other defendants, thus permitting

both HUP and the Trustees to be represented separately by individual

counsel, each of whom then presented separate arguments and conducted

separate examinations of witnesses throughout trial. Only HUP, and not the

Trustees, appeared on the verdict sheet.

     On November 12, 2013, the jury returned a verdict in favor of

Appellees.    Deeds timely filed post-trial motions requesting judgment

notwithstanding the verdict or, alternatively, a new trial. The court denied

the post-trial motions on January 28, 2014, and Deeds timely appealed. In

response to the trial court’s order, Deeds filed a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 31, 2014,

and the trial court entered its Pa.R.A.P. 1925(a) opinion on May 21, 2014.

     Deeds presents three questions for our review:

     1.     In accordance with this Court’s recognition of a per se rule
     entitling the plaintiff to a new trial following a defense verdict
     where counsel for defendant has improperly informed the jury
     that the plaintiff’s injuries are being adequately cared for due to
     the availability of government benefits, should not [Deeds]
     receive a new trial here because [Appellees’] counsel committed
     this very transgression, to the likely prejudice of [Deeds]?

     2.   Did the trial court err or otherwise abuse its discretion in
     not granting [Deeds] a new trial because the trial court
     improperly allowed two separate attorneys representing two
     separate defendants to question witnesses and present closing
     arguments even after the parties stipulated that this case would
     proceed only against a single defendant?

     3.    Did the trial court err or otherwise abuse its discretion in
     permitting defendant Dr. Samuel Parry to testify as an expert
     witness beyond the scope of his actual treatment of the birth
     mother, even though defense counsel failed in violation of

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      applicable procedures to identify him as an expert witness and
      disclose his expert opinions during discovery?

Deeds’ Brief at 5-6.

      In her first issue, Deeds argues that she is entitled to a new trial

because the trial court violated the collateral source rule when it “improperly

allowed [Appellees] to inform the jury that [Deeds’] substantial medical

needs were all being attended to at little to no cost to [Deeds’] legal

guardian due to the existence of state and federal education and medical

benefits programs.” Id. at 16-17. We agree.

      Our standard of review regarding a trial court’s denial of a
      motion for a new trial is limited. The power to grant a new trial
      lies inherently with the trial court and we will not reverse its
      decision absent a clear abuse of discretion or an error of law
      which controls the outcome of the case.

Maya v. Johnson & Johnson & McNeil-PPC, Inc. (In re McNeill-PPC,

Inc.), 97 A.3d 1203, 1224 (Pa. Super. 2014) (citation omitted).

         Generally, “the collateral source rule provides that
         payments from a collateral source shall not diminish the
         damages otherwise recoverable from the wrongdoer.”
         Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995). This
         rule “was intended to avoid precluding a claimant from
         obtaining redress for his or her injury merely because
         coverage for the injury was provided by some collateral
         source, e.g. insurance.” Beechwoods Flying Service,
         Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350,
         352 (Pa. 1984); see also id. at 353 (the rule is “intended
         to prevent a wrongdoer from taking advantage of the
         fortuitous existence of a collateral remedy”); Denardo v.
         Carneval, 444 A.2d 135, 140 (Pa. Super. 1982)
         (“Pennsylvania law is clear; the victim of a tort is entitled
         to the damages caused by the tortfeasor’s negligence
         regardless of compensation the victim receives from other


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J-A33035-14


          sources”), citing, inter alia, Boudwin v. Yellow Cab Co.,
          188 A.2d 259 (Pa. 1963).

       Griesser v. National R.R. Passenger Corp., 761 A.2d 606,
       609 (Pa. Super. 2000).

       Further, “when improperly admitted testimony may have
       affected a verdict, the only correct remedy is the grant of a new
       trial.” Id. at 608 (citing Collins v. Cooper, 746 A.2d 615, 620
       (Pa. Super. 2000)).

Nigra v. Walsh, 797 A.2d 353, 356 (Pa. Super. 2002) (citations modified).

       In the instant case, Deeds identifies, and the record confirms, several

instances in which Appellees elicited evidence of government benefits and

collateral sources of compensation to Deeds. At trial on October 31, 2013,

while cross-examining Deeds’ expert witness (certified life care planner3

Kathleen Corrigan, RN, CEN, CLCP), counsel for the Trustees elicited the

following:

       [Counsel for the Trustees]: . . . It’s not your opinion that Miss
            Renzulli is paying that out-of-pocket cost [for Deeds’
            medications]? You don’t have that opinion, do you?

       [Corrigan]: That she is paying for the medication?

       [Counsel for the Trustees]:        That they’re being charged the out-
            of-pocket cost?

       [Corrigan]: I believe Medicaid is paying for the medication.

____________________________________________


3
       A certified life care planner reviews medical records and bills to
formulate an expert opinion projecting the future medical costs of an
individual over her lifetime. In the instant case, the parties also stipulated
that the “necessary and reasonable medical expenses for Naijah Deeds’ past
medical treatment is $2,227,312.66.”         Notes of Testimony (“N.T.”),
10/31/2013, at 5-6.




                                           -5-
J-A33035-14


      [Counsel for the Trustees]: Okay.     And they don’t pay that
           walk up pay out of their pocket price either, do they?

      [Counsel for Deeds]: Objection, Your Honor. That’s not the
           legal standard of what the plaintiff is entitled to recover,
           and it’s a total collateral source rule and we have a
           stipulation of what past medical costs are.

      [The Court]:     I’ll sustain in part, but it’s certainly okay to ask
            how she determined what the costs are.

Notes of Testimony (“N.T.”), 10/31/2013, at 64-65. The court did not issue

any curative instructions to the jury. Later that same day, counsel for the

Trustees asked Nurse Corrigan “how the guarantee issue and the individual

mandate portions of President Obama’s Affordable Care Act will actually

affect the future care costs in this case[.]”   Id. at 81. Counsel for Deeds

objected, and the trial court sustained the objection, but again, did not issue

a curative instruction or provide any context for the jury.

      During closing argument on November 8, 2013, counsel for the

Trustees stated:

      But here’s what’s critical, Ladies and Gentlemen, about Nurse
      Corrigan. Every item that she claims that Miss Deeds has, Miss
      Deeds already receives, except for a new house. She didn’t tell
      you that Miss Deeds is lacking in a single care need; not one.

      She has morning care, day care, afternoon care, overnight care,
      that is already provided in an obviously caring house. She has
      medical care, specialists, top rate schools, communication
      boards.     Everything Nurse Corrigan mentioned, Miss Deeds
      already receives.

N.T., 11/8/2013, at 205.      The overall effect of these comments was to

suggest that Deeds’ medical costs were being covered by Medicaid and the

Affordable Care Act, and that she did not require (and accordingly could not

                                      -6-
J-A33035-14



properly seek) any additional compensation. This is a patent violation of the

collateral source rule. In this case, the violation requires remand for a new

trial.

         Whether remarks by counsel warranted a new trial requires a
         determination based upon an assessment of the circumstances
         under which the statements were made and the precaution
         taken by the court and counsel to prevent such remarks from
         having a prejudicial effect. It is the duty of the trial judge to
         take affirmative steps to attempt to cure harm. However, there
         are certain instances where the comments of counsel are so
         offensive or egregious that no curative instruction can
         adequately obliterate the taint.

Poust v. Hylton, 940 A.2d 380, 386 (Pa. Super. 2007) (citation and

emphasis omitted).

         While the primary focus of the collateral source rule is to avoid
         the preclusion or diminution of the damages otherwise
         recoverable from the wrongdoer based on compensation
         recovered from a collateral source, in some instances, the
         violation of the collateral source rule can affect the jury’s
         deliberation and decision on the issue of liability.      As our
         Supreme Court noted in Lobalzo v. Varoli, 185 A.2d 557 (Pa.
         1962), in some cases where there is a violation of the collateral
         source rule,

           it is impossible to conjecture what influence the
           erroneously     admitted   evidence     on     workmen’s
           compensation and unemployment compensation, as well
           as the misleading charge, had in bringing the jury to the
           conclusion it reached. When an error in a trial is of such
           consequence that, like a dash of ink in a can of milk, it
           cannot be strained out, the only remedy, so that justice
           may not ingest a tainted fare, is a new trial.         The
           defendants’ improper emphasis on the subject of an
           assumed double or triple payment may well have caused
           the jury to disbelieve the plaintiff with regard to his
           testimony on the manner in which the accident occurred.

         Id. at 561.

                                       -7-
J-A33035-14



Walsh, 797 A.2d at 360 (citations modified).

      Instantly, the Trustees’ argument that Deeds’ medical needs are

currently being met may well have permitted Appellees impermissibly to

benefit from “the fortuitous existence of a collateral remedy.” Beechwoods

Flying Serv., Inc., 476 A.2d at 353.       Although the trial court sustained

Deeds’ objections in the first two instances, it offered no curative or limiting

instructions, nor did it otherwise direct the jury as to how it could or should

evaluate the objectionable testimony.     See Poust, 940 A.2d at 386. The

teachings of our case law are clear: such suggestions by the Trustees may

have improperly influenced the jury’s determination. See Walsh, 797 A.2d

at 260. On this record, we can have little confidence that the verdict as to

Appellees’ negligence vel non was unaffected by the collateral source

evidence and argument.         Accordingly, the trial court erred in denying

Deeds’ motion for a new trial. See Maya, 97 A.3d at 1224. The ink was in

the milk; we cannot now extract it through magic or chemistry.

      Inasmuch as we reverse and remand on the first issue, the prospect of

a new trial requires that we address Deeds’ remaining allegations of error.

In her second issue, Deeds contends that the trial court erred in permitting

separate counsel - - one representing the Trustees and one representing

HUP - - to examine witnesses and present arguments individually to the

jury, despite the fact that the Trustees were not an active party in the

litigation and despite the fact that the Trustees did not appear on the verdict

sheet. Deeds argues that this had the effect of “allowing the lone defendant

                                     -8-
J-A33035-14



on the verdict slip to present two separate closing arguments and to

examine witnesses as though the case involved two separately represented

defendants.” Deeds’ Brief at 35. The trial court stated:

       [Deeds] fails to demonstrate any specific prejudice that resulted
       from the presence of two defense lawyers. Although Judge
       DeVito refused to remove counsel for the Trustees, he restricted
       cumulative questioning and limited counsel for the Trustees to
       questions related to the allegations against the Trustees[’]
       employee, Dr. Ural. The presence of two separate defense
       counsel in and of itself cannot constitute reversible error.17
         17
            This [c]ourt cannot find anywhere in the record where
         the Trustees were dismissed as a party. If the Trustees
         remained a party, they were entitled to representation. If
         they did not remain in the case, there is still no error since
         [Deeds] points to no particular question by Defense
         Counsel that was improper or duplicative.

T.C.O. at 5 (one footnote and record citation omitted). We disagree with the

learned trial court. Our review of the trial transcript reveals a deficiency in

that   court’s   description   of   the   Trustees’   participation.   Under   the

circumstances, we are constrained to conclude that the trial court abused its

discretion when it permitted counsel for the Trustees to remain.

       After the first day of trial, once the jury was excused, Deeds’ counsel

challenged the propriety of allowing multiple advocates for the defense:

       [Counsel for the Trustees]: We have a stipulation that all the
            people who treated Tamika Peterson were the employees—
            I’m sorry, were the agents of the Hospital of the University
            of Pennsylvania.

                                    *      *    *

       [Counsel for Deeds]: Okay. But, in other cases that we’ve
            have [sic], so we can just give the [c]ourt a reference, and


                                          -9-
J-A33035-14


           in answers to interrogatories, they say that the Hospital of
           University   of   Pennsylvania    is   an    unincorporated
           sub[div]ision of the Trustees of the University of
           Pennsylvania.

           Essentially, Your Honor, my belief would be, since
           everybody worked just for the Hospital of University of
           Pennsylvania, there should be one attorney representing
           the defendants in this matter. The defendants shouldn’t
           get two openings, two cross-examinations, two closing[s],
           and maybe even tonight with Doctor Fox, a direct and a
           cross, okay.

           I think there should be one attorney for the hospital. They
           all work for the hospital. The hospital is a division of—it
           says an unincorporated division of the Trustees of the
           University of Pennsylvania.

           You shouldn’t get two bites at the apple because they
           decide to say, we’re different people.

                               *     *      *

           I think, Your Honor, there should be one lawyer for the
           defendants in this case. The defendants have agreed in a
           stipulation that we read to the [c]ourt this morning and
           put on the record that they all work for HUP and, at best,
           [Dr.] Ural is an employee of the Trustees.

           I don’t think being an employee of the Trustees necessarily
           means he’s their agent. They didn’t stipulate that he was
           an agent, and they want to keep two defendants in for
           some coverage issues that they have with [the Medical
           Care Availability and Reduction of Error Act (“MCARE”)].

N.T., 10/29/2013, at 163-66.

     Counsel for HUP challenged the timing of Deeds’ objection, arguing

that “[i]f this was something that [Deeds] had an issue with, counsel needs

to bring this up before.” Id. at 168. Counsel for the Trustees maintained

that Deeds’ concern was raised too late, and argued that the Trustees and

HUP are “two separate entities” and that the stipulation “was for coverage

                                   - 10 -
J-A33035-14



reasons.” Id. at 169. Counsel for Deeds disagreed, asserting that the issue

could not have been raised earlier because Dr. Ural’s employment status had

been left opaque by the fact that the Trustees had not “answer[ed]

interrogatories or answer[ed] the complaint in any kind of fair way.” Id. at

171.

       The trial court agreed with Appellees, stating:

       It should have been raised pre-trial because the jury has already
       heard about who [counsel for the Trustees] represents in his
       opening to the jury.

       I think [counsel for HUP] is correct. It’s waived, it has not been
       raised prior to trial.

Id.    Thereafter, counsel for the Trustees remained an active participant in

the trial, and was permitted to examine witnesses and to present closing

arguments. Nonetheless, when the case was sent back with the jury, only

HUP appeared on the verdict slip.

       Pursuant to Pa.R.C.P. 230, a plaintiff may declare a voluntary nonsuit

to terminate litigation against a defendant once trial has commenced. 4      In

this case, however, counsel for Deeds did not declare a voluntary nonsuit

against the Trustees.           Nor did Deeds identify any other procedural

____________________________________________


4
      “Pa.R.C.P. 230 declares a voluntary nonsuit to be the exclusive
method of voluntary termination by a plaintiff during trial; that it may not be
suffered without leave of court after plaintiff has rested his case; and that it
is not permissible at all after the close of all of the evidence.” Deigan v.
Deigan, 232 A.2d 227, 229 (Pa. Super. 1967).




                                          - 11 -
J-A33035-14



mechanism to remove the Trustees prior to submission of the verdict slip,

which only named HUP. The trial court’s conclusion that the Trustees were

not dismissed as a party is correct. See T.C.O. at 5.

      Pursuant to Pa.R.C.P. 223(2), the trial court may “[l]imit[] the number

of attorneys representing the same party or the same group of parties, who

may actively participate in the trial of the case or may examine or cross-

examine a witness or witnesses[.]” Pa.R.C.P. 223(2).

      Under Rule 223 of the Pennsylvania Rules of Civil Procedure,
      local courts are empowered to make and enforce rules regulating
      the number and length of addresses to the jury. . . . Further, it
      has long been established that the addresses of counsel to the
      jury are especially subject to the regulatory powers of the trial
      judge. So long as no clear abuse of discretion exists or rights of
      due process are violated, an appellate court should not interfere.

Burish v. Digon, 206 A.2d 497, 499 (Pa. 1965).

      In Burish, which involved cross claims for comparative negligence in a

car accident, our Supreme Court found no error or abuse of discretion in the

trial court’s decision to limit Burish’s counsel to one closing argument despite

the fact that Burish was separately represented by counsel as an individual

and by counsel for his insurance company because:

      The cross actions consolidated for trial arose out of the same
      facts and involved identical parties. Burish received the same
      treatment as his opposing litigant. None gained special
      advantage over the other. Burish was represented by [ ] both
      counsel as an individual, even though one may have been
      present to protect the interests of a company carrying liability
      insurance on his automobile. The fact that his counsel could not
      agree between themselves as to what the closing argument
      should include should not vitiate Digon’s fairly won verdict. It
      must be further noted that if the second counsel were permitted

                                     - 12 -
J-A33035-14


     to argue, it was his declared purpose to maintain that both
     drivers were guilty of negligence and, therefore, neither should
     recover.

Burish, 206 A.2d at 499.

     At the trial of the instant case, the Trustees argued that they remained

an essential party because of coverage questions under MCARE.            N.T.,

10/29/2013, at 163-66, 169. Under similar circumstances in Burish, supra,

our Supreme Court determined that the trial court properly limited the two

attorneys with similar interests (one of which was financial coverage), to a

single closing argument.    Burish, 206 A.2d at 499.     Here, the facts and

claims pleaded against HUP and the Trustees were identical. Moreover, HUP

and the Trustees had asserted no cross-claims against one another.       HUP

and the Trustees shared expert witnesses as well. They were members of

“the same group of parties,” and the matter of coverage alone did not

require counsel for the Trustees’ active participation. See Pa.R.C.P. 223(2);

Burish, 206 A.2d at 499. There were in fact mechanisms for removing the

Trustees once trial commenced. Contrary to the trial court’s assertion that

“[i]f the Trustees remained a party, they were entitled to representation,”

T.C.O. at 5, the trial court had discretion to limit trial participation by

counsel for the Trustees.

     We are unable to agree with the trial court’s assertion that Deeds “fails

to demonstrate any specific prejudice that resulted from the presence of two

defense lawyers” because the court “limited counsel for the Trustees to

questions related to the allegations against the Trustees[’] employee, Dr.

                                   - 13 -
J-A33035-14



Ural” and “[Deeds] points to no particular question by Defense Counsel that

was improper or duplicative”. T.C.O. at 5. As discussed above, counsel for

the Trustees transgressed the collateral source rule on at least three

occasions, transgressions which form the basis for the award of a new trial in

this case.   See Walsh, 797 A.2d at 360.      The Trustees’ questions, which

involved improper inquiries into Deeds’ existing financial coverage for her

medical needs, went well beyond the scope of Deeds’ allegations of

negligence against Dr. Ural. See N.T., 10/31/2013, at 64-65, 81. Hence it

cannot be maintained that the active and duplicative participation of counsel

for the Trustees caused no prejudice to Deeds.      Cf. T.C.O. at 5. The trial

court abused its discretion by permitting counsel for the Trustees and

counsel for HUP effectively to “tag team” Deeds at trial while representing

the same interest. See Burish, 206 A.2d at 499.

      Finally, inasmuch as we order a new trial, we must address Deeds’

contention that the trial court erred and abused its discretion by “permit[ing]

Dr. Samuel Parry, the attending physician for [Deeds’] c-section delivery [on

January 20, 2001], to offer expert opinion testimony about the care the birth

mother received from others two days earlier on the mother’s previous visit

to HUP’s [Perinatal Evaluation Center (‘PEC’)].”        Deeds’ Brief at 40.

Specifically, Appellees “did not identify Dr. Parry as an expert witness, nor

was he identified in [Appellees’] answers to interrogatories as a treating

physician who would be providing opinion testimony” but nonetheless “asked

his opinion concerning whether [Deeds’] mother had preeclampsia on

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J-A33035-14



January 18th, the equivalent of asking him as to whether or not [Appellees]

violated the standard of care by not diagnosing [Deeds’] mother with

preeclampsia on January 18th.”        Id. at 41-42.    After careful review, we

disagree.

      Our standard of review for evidentiary rulings is narrow:

      When we review a trial court’s ruling on admission of evidence,
      we must acknowledge that decisions on admissibility are within
      the sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of law. In
      addition, for a ruling on evidence to constitute reversible error, it
      must have been harmful or prejudicial to the complaining party.

      The admissibility of expert testimony is soundly committed to
      the discretion of the trial court, and the trial court’s decision will
      not be overruled absent a clear abuse of discretion.

Polett v. Public Communs., Inc., 83 A.3d 205, 218-19 (Pa. Super. 2013)

(citations omitted).

      “[T]he division [sic]whether testimony constitutes fact or opinion may

be difficult, for there is no litmus test for fact versus opinion.” Bucchianeri

v. Equitable Gas Co., 491 A.2d 835, 839 (Pa. Super. 1985) (internal

quotation marks omitted). “[T]echnical expertise does not ipso facto convert

a fact witness, who might explain how data was gathered, into an expert

witness, who renders an opinion based on the data.” Branham v. Rohm &

Haas Co., 19 A.3d 1094, 1110 (Pa. Super. 2011).

      A pre-trial report    by a non-party expert serves to inform the
      opposing side of       the identity of a party’s experts and the
      conclusions of the    experts in order to prevent unfair surprise and
      prejudice at trial.   However, a physician who is also a defendant



                                       - 15 -
J-A33035-14


     may testify as a fact witness in his own behalf without the prior
     filing of an expert’s report.

Havasy v. Resnick, 609 A.2d 1326, 1333 (Pa. Super. 1992).                   “Fact

testimony may include opinion or inferences so long as those opinions or

inferences are rationally based on the witness’s perceptions and helpful to a

clear understanding of his or her testimony.” Brady by Brady v. Ballay,

704 A.2d 1076, 1082 (Pa. Super. 1997).

     In the instant case, Dr. Parry treated Deeds’ mother, Tamika Peterson,

on November 27, 2000, when she initially presented to HUP with back pain.

Dr. Parry did not see Peterson on January 18, 2001, when she complained of

headache, uterine contractions, and blurred vision, but was sent home.

However, Dr. Parry was the attending physician on January 20, 2001, when

Peterson suffered a placental abruption and Deeds was delivered by

emergency caesarian section.        Prior to Dr. Parry’s testimony, Deeds

objected, arguing:

     Doctor Parry . . . did not see the patient on [January] 18th, did
     not participate in the care on the 18th, and Doctor Parry will start
     talking about the care that took place on the 18th is not needed
     [sic].

     I’ve asked for an offer of proof and counsel told me well, he’s
     going to talk about how the PEC worked and how the PEC was
     set up and how people were assigned to the PEC. We have
     already heard from every defense witness with the exception of
     Doctor Schwartz, who just left, about the PEC, how it was
     working, how it was set up.

     So, this is nothing but repetitive testimony by someone who is
     not there during any of the critical events that occurred.

                                *     *      *


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J-A33035-14


      So, I have to wonder, Your Honor, what he is going to testify to.
      If he is going to testify about the care that he rendered on the
      20th, and the 21st, and the discharge summary that he wrote,
      then I think that he is a treating physician.

N.T., 11/6/2013 (Morning Session), at 113-15.             After hearing from

Appellees, the court held that Dr. Parry would be permitted to “testify about

his contacts with Tamika Peterson,” id. at 127, and to the extent that Dr.

Parry relied upon notes in Peterson’s file from the January 18, 2001 visit in

order to diagnose the placental abruption on January 20, he would be

permitted to so testify.    Id. at 134.   Thereafter, Dr. Parry was sworn in

without being qualified as an expert witness.     N.T., 11/6/2013 (Afternoon

Session), at 7.     Dr. Parry testified that he diagnosed Peterson with a

placental abruption on January 20, and that after the emergency caesarian

section, her blood pressure remained high. Id. at 60-61. He then explained

as follows:

              So, otherwise, I thought Ms. Peterson was doing well. So I
              wrote routine post-op care. And now we have to from this
              point on make a decision why we had these elevated
              pressures because if I do think it’s pre-eclampsia, pre-
              eclampsia after delivery, before delivering any time can
              lead to major medical problems for the mother. It can
              affect the liver, it can affect the kidneys. It can cause a
              woman to have a seizure. It can cause stroke.

              One of the major things it does is causes seizure. Pre-
              eclampsia then becoming eclampsia. When a woman has
              a seizure and if I think a woman has pre-eclampsia, I have
              to give her medicine to prevent a seizure which is
              magnesium sulfate. They hate that. It makes them feel
              weak like they have the flu. It’s not a nice drug to give a
              woman. I don’t give it to any woman that I have any
              suspicion of pre-eclampsia. We have to know for sure,
              does she have it or not. If she has, she has to get

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             magnesium sulfate for the next day to prevent her from
             having a seizure.

      [Counsel for the Trustees]: Doctor, if a patient truly has pre-
           eclampsia and doesn’t get magnesium sulfate, what could
           happen?

      [Parry]:    She could have a seizure.

      [Counsel for the Trustees]:   Does any of that happen?

      [Parry]:    No.

Id. at 62-63. Dr. Parry described the monitoring and lab work performed to

satisfy his diagnosis that Ms. Peterson did not have preeclampsia, and stated

that he successfully treated her pregnancy-induced hypertension with

magnesium sulfate.      Id. at 63-66.   Thereafter, counsel for the Trustees

asked:

             There is a distinction between—there is a mild pre-
             eclampsia and a severe pre-eclampsia, right, Doctor? Did
             she have either mild pre-eclampsia or severe pre-
             eclampsia on January 20?

      [Parry]:    No.

      [Counsel for the Trustees]: Did she have either mild pre-
           eclampsia or severe pre-eclampsia on January 18?

      [Parry]:    No.

      [Counsel for Deeds]:    Objection.

      [Counsel for the Trustees]: We went through the notes that he
           reviewed from the two days before.

      The Court: Overruled.

Id. at 66.

      Deeds argues that Dr. Parry’s testimony that Deeds’ mother did not

have preeclampsia on January 18, 2001 expressed an expert opinion as to

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J-A33035-14



standard of care. However, Dr. Parry’s testimony that Peterson did not have

preeclampsia on January 18 was based on his treatment and observation of

Peterson, and was “helpful to a clear understanding of his . . . testimony.”

Brady, 704 A.2d at 1082. Although Dr. Parry discussed the basis for the

course of Peterson’s medical treatment and provided an explanation as to

how she received care at the PEC based on his experience as an attending

physician at the PEC, he did not render any opinion as to whether the PEC

violated a standard of care on January 18. Therefore, the trial court did not

err in admitting his testimony as a fact witness.      See Polett, 83 A.3d at

218-19; see also Branham, 19 A.3d at 1110; Bucchianeri, 491 A.2d at

839.      Hence, to the extent that this issue might arise upon retrial, we

observe that Deeds’ third issue would not merit relief on the present appeal.5

         Having concluded that Deeds was irreparably prejudiced by Appellees’

violations of the collateral source rule and “tag team” representation at trial,

we reverse the judgment in favor of Appellees, and we remand for a new

trial.

         Reversed and remanded for new trial. Jurisdiction relinquished.

         Judge Lazarus joins the opinion.

         Judge Strassburger files a concurring and dissenting opinion.



____________________________________________


5
      Necessarily, we do not opine with respect to the permissibility at retrial
of questions or answers different than those challenged on this appeal.



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J-A33035-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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