J-A21006-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY CHIODETTI,                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

DR. EUGENE FERNANDES,

                        Appellee                     No. 63 EDA 2013


          Appeal from the Judgment Entered November 15, 2012
           In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): April Term, 2009; #0040


BEFORE: BOWES, OTT and STRASSBURGER, *JJ.

DISSENTING MEMORANDUM BY BOWES, J.             FILED FEBRUARY 06, 2015

     The learned Majority concedes that Dr. Iliff testified inconsistently and

beyond the scope of his expert report when he “changed his opinion

regarding the causation of Chiodetti’s blindness.” Majority Memorandum at

10. Yet, without even a nod to Pa.R.C.P. 4003.5(c), which precludes experts

from offering opinions on direct examination that are inconsistent with or go

beyond the fair scope of their reports, the Majority simply cites Lykes v.

Yates, 77 A.3d 27, 33 (Pa.Super. 2013), for the proposition that since the

jury found no negligence, “any error regarding causation would not affect

the verdict.” Id. It then goes on to hold that, since the jury’s finding that

Dr. Fernandes did not breach the standard of care was fully supportable on




*Retired Senior Judge assigned to the Superior Court.
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standard of care evidence alone, the offending causation testimony could not

have tainted the verdict.

      I believe the trial court erred in permitting Dr. Iliff to testify

inconsistently with, and beyond the scope of, the opinions contained in his

expert report in violation of Pa.R.C.P. 4003.5(c). Furthermore, contrary to

my distinguished colleagues, I believe the offending testimony affected both

the standard of care and causation as the issues were inextricably

intertwined. Since the error may have affected the verdict, I would reverse

and remand for a new trial on this basis. Hence, I respectfully dissent.

      Preliminarily, I believe that the proper standard of review of this issue

is the one for the admissibility of evidence.

      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.


Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.Super. 2009) (quoting

Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008).            “A party suffers

prejudice when the trial court's error could have affected the verdict.”

Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550,

561 (Pa.Super. 2006) (emphasis added).


      Mr. Chiodetti alleges that he was ambushed by Dr. Iliff’s rejection of

the CRAO diagnosis contained in his report and his adoption of Dr. Duker’s

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OAO diagnosis. Furthermore, he contends that since the defense experts did

not criticize the post-operative testing in their reports, this testimony was a

surprise, and, consequently, he had no rebuttal witness available to refute

it.1 The record demonstrates the following.

        Mr. Chiodetti awoke blind in his right eye after surgery performed by

Dr. Fernandes to repair a fractured orbit.             Mr. Chiodetti’s expert, Dr.

Kraushar, opined that Dr. Fernandes inadvertently injected anesthetic

directly into the globe of Mr. Chiodetti’s eye causing the blindness.              He

arrived at that conclusion after diagnosing Mr. Chiodetti as suffering from a

CRAO, a condition consistent with the injection of anesthetic directly into the

eye, and Dr. Fernandes’ admission that he did not move the needle slightly

before injecting anesthetic to ensure that it was not located in the eye itself.

Dr. Kraushar testified that a physician is negligent if he fails to move the tip

of the needle slightly to ensure that the globe does not move before

injecting the anesthetic.

        Dr. Duker, the first of two defense experts to testify, disagreed that

Dr. Fernandes injected anesthetic into the eye. He arrived at that conclusion

after   determining     that   Mr.    Chiodetti   suffered   an   OAO,   a   condition

inconsistent with such an injection. Furthermore, Dr. Duker maintained that
____________________________________________


1
  Dr. Fernandes maintained that Dr. Iliff’s trial opinions regarding OAO were
merely “refinements” of his initial diagnosis, Appellee’s brief at 19, a position
rejected by the Majority as well as this author.



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the injection of anesthetic into the eye was not necessarily negligent; it was

a known complication of eye surgery that rarely occurred.            Finally, he

disputed that Dr. Kraushar’s “wiggle method” was the standard of care.

      Dr. Iliff, the second defense expert, had prepared an expert report in

which he rendered the following opinions. The morning after surgery, it was

determined that Mr. Chiodetti had “no light perception” in the surgically

treated eye. Dr. Iliff stated this was “most likely due to central retinal artery

occlusion (CRAO),” and that embolus was “very unlikely.” Report, Nicholas

Iliff, M.D., 12/29/10, at 2.   He opined that the causes of Mr. Chiodetti’s

blindness “which should be considered” are “CRAO, trauma to the optic

nerve or microvascular spasm of perineural vessels[,]” id., but ultimately

concluded that CRAO was the most likely.        He agreed that an intraocular

injection of lidocaine with epinephrine into the eye could cause a CRAO, but

he disputed that Dr. Fernandes’ injection deviated from the standard of care,

or that it perforated the eye so as to cause the CRAO. In his supplemental

report, Dr. Iliff disagreed that “the standard of care requires that the needle

on the syringe be moved to determine whether the eye moves with the

needle.” Report, Nicholas T. Iliff, M.D., 2/28/11, at 1.

      Dr. Iliff’s trial testimony was markedly different from his report.     He

characterized Dr. Kraushar’s theory of the injury as “a very unlikely

scenario.” N.T. Trial (Jury) Vol. 4, 7/21/11, at 28. Although an OAO was

not mentioned in his report as a possible cause of the blindness, he was

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asked on direct examination and over objection, “What findings were there

in Mr. Chiodetti’s case that support the conclusion that the loss of vision was

due to an obstruction of the ophthalmic artery?” Id. at 49. The expert then

launched into a description of an OAO, how Mr. Chiodetti’s symptoms were

consistent with both a CRAO and an OAO, and concluded that, “there’s

certainly evidence here that there was a problem with the ophthalmic artery

occlusion.” Id. at 57.

      Moments later, again over objection, Dr. Iliff was asked, “Now having

looked at the entire set of materials again what is your opinion as to the

cause of the vision loss?” Id. at 60. Dr. Iliff told the jury that while on his

way to trial, the conclusion he reached was, “Ophthalmic artery occlusion,

this is what I ultimately came to.”    Id. at 63.   Counsel then exhaustively

explored on direct examination why Mr. Chiodetti’s findings fit the OAO

scenario much better than the CRAO scenario he had originally concluded

was the cause of blindness. Id. at 65-89. Dr. Iliff went on to criticize at

length the post-operative test results that were inconsistent with an OAO.

Notably, he opined that the post-operative carotid Doppler study that

indicated good flow in the ophthalmic artery was inaccurate in measuring

ophthalmic artery blood flow. Id. at 74. He testified that the tests meant

nothing in this setting, that other tests were necessary to detect the

blockage, and that the CT scan would not show the blood vessels. Id. at

78-80.   Dr. Iliff, using the CT scan, demonstrated to the jury why it was

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inadequate.     None of this criticism was contained in his expert report; in

fact, Dr. Iliff had relied on these same tests in reaching the conclusions

stated in his report.

       Finally, Dr. Iliff told the jury there were four potential causes of an

OAO: direct trauma, swelling, irritation, and clots.       Id. at 85-86.     He

explained that all of these were normal consequences of the surgery and

could cause an OAO even when the surgery is performed correctly. Id. at

88.    Dr. Iliff also reiterated Dr. Duker’s testimony that an inadvertent

injection of local anesthesia into the globe would not cause an OAO. Id. at

89.2

       The Majority concedes that Dr. Iliff’s trial testimony was inconsistent

with and went far beyond the scope of his expert report. I submit that its

admission was violative of Pa.R.C.P. 4003.5(c). Pa.R.C.P. 4003.5(c), often

referred to as the fair scope rule, provides:

       (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
____________________________________________


2
  On cross-examination, Dr. Iliff conceded that the term “OAO” did not
appear anywhere in his reports. N.T. Trial (Jury) Vol. 4, 7/21/11, at 100.
He also acknowledged that he did not address therein the use of the Doppler
on the carotid or ophthalmic arteries. Id. He admitted that he was not
present in court when Dr. Duker testified, but defense counsel supplied him
with a synopsis of Dr. Duker’s testimony.




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      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.


      The Explanatory Note to Rule 4003.5 states in pertinent part:


      To prevent incomplete or "fudging" of reports which would fail to
      reveal fully the facts and opinions of the expert or his grounds
      therefor, subdivision (c) provides that an expert's direct
      testimony at trial may not be inconsistent with or go beyond the
      fair scope of his testimony as set forth in his deposition and
      answer to interrogatories, separate report or supplements
      thereto. However, he may testify to anything which he has never
      questioned in the discovery proceedings. This is a new provision
      not expressly found in the Federal Rule.



      The rule is intended to avoid unfair surprise or prejudice at trial by

permitting a party to prepare a meaningful response to the opponent’s

expert. Jones v. Constantino, 631 A.2d 1289, 1294-95 (Pa.Super. 1993).

It “favors the liberal discovery of expert witnesses and disfavors unfair and

prejudicial surprise.”     Id. (quoting Dibel v. Vagley, 612 A.2d 493, 499

(Pa.Super. 1992).        The rule precludes experts from testifying on direct

examination to opinions that are inconsistent with or beyond the scope of

the opinions in their expert reports.

      In Jones, supra, we affirmed the trial court’s grant of a new trial

based on the defense expert’s testimony at trial that exceeded the scope of

his expert report. The expert testified that traction, “an injury caused by the



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normal manipulation of extremely fragile ducts in the course of the

surgery[,]” was the cause of plaintiff’s problem following gallbladder surgery.

Jones, supra at 1296.       However, in his expert report, the expert had

opined only that the injury sustained by the plaintiff during elective

gallbladder surgery was unavoidable and not caused by negligence, and he

offered no alternative cause. We rejected the defense contention that the

plaintiff suffered no prejudice from the expert’s deviation from his report,

and held that that Rule 4003.5 does not permit an expert to “make a bald

assertion of non-negligence in his expert report and then proffer an in-depth

theory explaining absence of culpability at trial.” Id. We refused to sanction

“ambiguity and avoidance” in expert reports, and held that reports which did

not apprise the opponent of the basis for the expert’s conclusion failed to

comport with Pa.R.C.P. 4003.5(c).

      Walsh v. Kubiak, 661 A.2d 416 (Pa.Super. 1995), involved claims of

medical malpractice and battery for lack of informed consent against an

orthopedic surgeon. The defense expert’s report only discussed the lack of

negligence and did not address the necessity for the surgery. The trial court

precluded the expert from expressing any opinion at trial that the surgery

was in fact necessary on the ground that the opinion was outside the scope

of his report. On appeal, the defendant alleged this restriction constituted

reversible error.   We affirmed, finding nothing in the expert report that

would have permitted the plaintiff to anticipate that the expert would

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express the opinion that the surgery was necessary. Thus, Plaintiff could not

have adequately prepared to cross-examine the expert on the subject of

surgery. Furthermore, the only expert for plaintiff who could have rebutted

the expert’s proposed testimony had already testified and been excused.

We concluded that the plaintiff would have been prejudiced by the

introduction of such testimony, and that the trial court properly limited the

scope of the expert’s testimony to the conclusions stated in his report.

      More recently, in Woodard v. Chatterjee, 827 A.2d 433 (Pa.Super.

2003), a motor vehicle accident case, plaintiff’s expert testified based on the

records of other physicians that Woodard sustained an acute cervical

radiculopathy due to the accident. However, the expert’s report noted only

“some lingering neck pain and stiffness” from an earlier accident and made

no mention of a cervical injury. Id. at 437. The trial court found that the

expert’s testimony exceeded the fair scope of his report, but found no

prejudice or surprise because Ms. Chatterjee was privy to the EMG report

upon which the expert relied and “had adequate time to prepare a rebuttal.”

Id. at 442. This Court reversed and awarded a new trial, concluding that

not only did the testimony exceed the fair scope of the expert’s report, it

was prejudicial as well. We ruled that Ms. Chatterjee lacked sufficient notice

that the only trial expert would testify about the findings and diagnoses of

other physicians to whom he made no reference in his own reports.




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      In Brodowski v. Ryave, 885 A.2d 1045, 1065-1066 (Pa.Super. 2005)

(en banc), this Court affirmed the trial court’s refusal to admit expert

testimony that was not addressed in the experts’ reports on the basis of

unfair surprise.   We held that since the experts’ reports did not address

“what Dr. Byron should have known or what inquiries, if any, he should have

made to the unknown person who reported to him that night[,]” expert

testimony on this question was properly precluded as beyond the scope of

the reports.

      There is considerable precedent interpreting Rule 4003.5(c) as

requiring a showing of prejudice to the opposing party in order for admission

of the offending expert testimony to be considered reversible error.     See

Butler v. Kiwi, S.A., 604 A.2d 270, 276 (Pa.Super. 1992); Augustine v.

Delgado, 481 A.2d 319, 200-5 (Pa.Super. 1984). Where surprise results in

the opposing party’s inability to meaningfully cross-examine a witness or

offer a rebuttal witness, we have found sufficient prejudice to warrant a new

trial. Notably absent is any analysis of whether the error may have affected

the verdict, which is the standard applied by the Majority herein, presumably

because it is implicit that such prejudice may affect the verdict.

      I believe Mr. Chiodetti has demonstrated that he was ambushed by Dr.

Iliff’s reversal and placed at considerable disadvantage in cross-examining

the expert. Furthermore, Mr. Chiodetti was anticipating that Dr. Iliff would

testify consistently with his report and favorably to Plaintiff that Mr.

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Chiodetti sustained a CRAO, a condition that may result from an inadvertent

injection of anesthetic into the eye. Instead, by rejecting that diagnosis and

adopting Dr. Duker’s OAO diagnosis, Dr. Iliff effectively ruled out an

inadvertent injection of anesthetic as the cause of Mr. Chiodetti’s blindness,

totally undercutting Plaintiff’s liability theory.     Had Dr. Iliff testified

consistently with his report, Mr. Chiodetti could have pointed to a defense

expert who agreed with his expert’s diagnosis, which was consistent with his

theory of how the injury occurred. Thus, not only was Dr. Iliff’s turn-about a

complete surprise to Mr. Chiodetti, it also undercut Plaintiff’s theory that Dr.

Fernandes injected anesthetic directly into Mr. Chiodetti’s eye.

      Moreover, Dr. Iliff’s trial testimony was unfairly prejudicial in another

important respect.     In his report, Dr. Iliff offered no discussion, and

certainly, no criticism, of the Doppler studies and CT scan results, all of

which he reviewed and relied upon in authoring his report. The results of

those objective tests thoroughly undermined the OAO diagnosis as they

showed normal ophthalmic artery blood flow.       At trial, over objection, Dr.

Iliff was permitted to testify at length that the objective tests were

inaccurate and to explain why the results did not rule out OAO as the cause

of Mr. Chiodetti’s blindness.   Since Dr. Duker’s expert report also did not

discuss or criticize the accuracy of the Doppler studies and CT scans that

showed no interrupted blood flow in the ophthalmic artery, which seemingly

refuted a diagnosis of OAO, I am persuaded by Mr. Chiodetti’s contention

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that this attack came as a complete surprise and that he was not prepared.

Not only was his ability to cross-examine Dr. Iliff regarding the tests

severely compromised, but he had no rebuttal expert in the wings who could

refute the attacks on the validity of the testing. I submit that this was the

type of prejudice to the opposing party that Pa.R.C.P. 4003.5(c) was

intended to prevent.

        The Majority agrees that Dr. Iliff’s testimony on direct examination

was inconsistent with and went far beyond the scope of his report, but does

not address Pa.R.C.P. 4003.5, or analyze the impact of the erroneously

admitted expert testimony upon the opposing party, Mr. Chiodetti. Instead,

it mistakenly dismisses the offending testimony as related solely to

causation, and then concludes that since the jury found no breach of the

standard of care, it never reached the causation issue.         I find the latter

assumption untenable on the record herein.3

        In the instant case, negligence and causation were interwoven.        Mr.

Chiodetti maintained that Dr. Fernandes negligently injected anesthetic

directly into the globe of his eye because he failed to perform a wiggle

____________________________________________


3
    The jury responded in the negative to the first question on the verdict slip:

        “Did you find that the conduct of the defendant doctor fell below
        the applicable standard of care?      In other words, was the
        defendant doctor negligent?”




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maneuver prior to injecting the anesthesia to ensure that the needled was

not located in the eye.     A diagnosis of CRAO was consistent with the

injection scenario; a diagnosis of OAO was not.      Thus, Dr. Iliff’s offending

diagnosis testimony was highly probative of whether or not Dr. Fernandes

inadvertently injected the anesthetic into Mr. Chiodetti’s eye in the first

instance. The expert’s rejection at trial of his earlier CRAO diagnosis in favor

of OAO effectively ruled out the negligent injection of anesthetic into the

globe of Mr. Chiodetti’s eye as the mechanism of injury. If the jury believed

the defense experts that OAO rather than CRAO was the proper diagnosis, it

necessarily followed that Dr. Fernandes did not negligently inject the eye

with anesthetic.

      I submit that the jury’s verdict of no negligence is consistent with a

finding either that the wiggle method was not the standard of care for the

injection of anesthetic or that Dr. Fernandes did not inject anesthesia

directly into Mr. Chiodetti’s eye.      Since Dr. Iliff’s offending testimony

undermined the latter, it was highly probative of negligence. Hence, I find

unsupportable the Majority’s conclusion that such testimony related only to

causation, and that the jury did not consider it in arriving at its conclusion

that Dr. Fernandes was not negligent.

      Finally, I believe the Majority’s analysis of the sufficiency of the

standard of care evidence is misguided and irrelevant to our determination.

The fact that the standard-of-care evidence alone could sustain the jury’s

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verdict has no bearing on whether the erroneously admitted evidence may

have affected the verdict. I submit Dr. Iliff’s improperly admitted testimony

tended to prove that Dr. Fernandes did not inject the eye, negligently or

otherwise, and thus, it may have contributed to the jury’s verdict that his

conduct did not fall below the standard of care. Hence, I would reverse for a

new trial.




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