J-A21007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COLLEEN BOYLE AND STEPHEN                  :   IN THE SUPERIOR COURT OF
    FLUCK                                      :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    EINSTEIN MEDICAL CENTER                    :
    MONTGOMERY AND EINSTEIN                    :   No. 3619 EDA 2018
    MEDICAL CENTER PHILADELPHIA                :
                                               :
                                               :
    APPEAL OF: EINSTEIN MEDICAL                :
    CENTER PHILADELPHIA                        :

              Appeal from the Order Dated November 19, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                        No(s): 4230 Feb. Term, 2016


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED FEBRUARY 14, 2020

       Einstein Medical Center Philadelphia1 (“Einstein” or “Appellant”) appeals

from the November 19, 2018 order awarding a new trial limited to a damages

determination in the above-captioned civil action. We affirm.

       The trial court has offered an apt summary of the factual background:

       Plaintiffs are Colleen Boyle and her husband Stephen Fluck
       (collectively, [“Appellees”]). Ms. Boyle had successful right knee
       replacement [reconstruction] surgery at Einstein by Dr. Julius K.
       Oni, M.D. [(“Dr. Oni”).] The next day, October 2, 2015, Ms. Boyle
       fell in her room at Einstein after being left unassisted by a physical
       therapist[, Gregory Galuska,] when she wanted to use the


____________________________________________


1  All claims against Einstein Medical Center Montgomery were dismissed via
stipulation of the parties. See Stipulation to Discontinue, 4/1/16, at 1-2.
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      bathroom. After Ms. Boyle was helped off the floor and back to
      bed, Dr. Oni was summoned.

      Dr. Oni arrived, removed the bandage from Ms. Boyle’s right knee,
      and found that her surgical wound was open all the way down to
      the implants. N.T. Trial, 6/26/18, at 154-56. He performed
      emergency surgery on Ms. Boyle later that day. He found a
      significant tear or rupture of her patellar tendon, which is the
      tendon that connects the kneecap bone to the tibial bone. Id. at
      157-58. He also found a significant tear or rupture of the medial
      and lateral retinaculum. Id. at 162-63.

      Following this second operation, Dr. Oni put Ms. Boyle in a locked,
      hinged knee brace. She could not bend her knee at all in the
      brace.    His plan was to lock her knee in extension for
      approximately six weeks to allow the patellar tendon to heal. Id.
      at 164-65.

      [Appellees] contended that the physical therapist was negligent in
      failing to take Ms. Boyle back to bed for her to use a bedpan.
      Instead, the therapist took her to a bathroom which was not
      equipped with a toilet she could use, failed to summon a female
      staff member to assist her in the bathroom, instructed her to use
      a bedpan while standing, and left her alone and unaided in the
      bathroom where she fell.

      Ms. Boyle sued Einstein for the actions and omissions of the
      physical therapist. [Appellee] Stephen Fluck asserted a claim for
      loss of consortium.

Trial Court Opinion, 11/19/18, at 1-2 (cleaned up).

      The case ultimately went to trial before a jury, which was held over five

days from June 22, 2018 through June 28, 2018. At trial, Einstein’s expert,

Laurence R. Wolf, M.D. (“Dr. Wolf”), testified that Ms. Boyle’s accidental fall

had ruptured her right patellar tendon and necessitated emergency surgery.

See N.T. Trial, 6/27/18, at 109-10. The trial court also instructed the jury

prior to deliberation that the parties “have agreed that [Ms. Boyle] sustained

some injury in this incident” and that “if you find that the defendant was

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negligent, you must award the plaintiff some damage for those injuries that

were sustained as a result of the defendant’s negligence.” Id. at 199. The

jury concluded that Einstein had been negligent.        See Jury Verdict Sheet,

6/28/18, at 1. However, the jury also “found that Einstein’s negligence was

not a factual cause of the injuries sustained . . . and failed to award [Appellees]

any damages.” See Trial Court Opinion, 11/19/18, at 1.

      Appellees filed a post-trial motion requesting a new trial limited to a

determination of damages. In relevant part, Appellees averred that the jury’s

verdict on causation was legally erroneous and against the weight of the

evidence.   See Appellees’ Post-Trial Motion, 7/2/18, at ¶¶ 5-8.          Einstein

opposed Appellees’ motion. Ultimately, the trial court filed an opinion and

order holding that the jury’s verdict on causation was legally erroneous and

against the weight of the evidence in light of the testimony presented by

Einstein’s expert Dr. Wolf and the trial court’s instructions to the jury. The

trial court awarded a new trial limited to the issue of damages. See Order

and Opinion, 11/19/18, at 4 (“A jury’s verdict finding negligence but that the

negligence was not a substantial factor in causing the plaintiff’s injuries, is

contrary to the weight of the evidence when the defendant’s expert agreed

that the accident caused some injury.”).

      Einstein timely appealed and the trial court filed an opinion under Rule

1925(a). Einstein presents two issues for our consideration:

      1. Did the trial court abuse its discretion in ordering a new trial as
      to damages because the jury’s verdict, that any negligence by the
      defendant was not a factual cause of any harm suffered by the

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      plaintiffs, is consistent with and supported by the evidence and
      the jury instructions, and does not “shock one’s sense of justice”?

      2. In the alternative, did the trial court err in granting a new trial
      as to damages only?

Appellant’s brief at 3.

      The following principles of Pennsylvania law guide our review:

      Trial courts have broad discretion to grant or deny a new trial.
      The grant of a new trial is an effective instrumentality for seeking
      and achieving justice in those instances where the original trial,
      because of taint, unfairness or error, produces something other
      than a just and fair result, which, after all, is the primary goal of
      all legal proceedings. Although all new trial orders are subject to
      appellate review, it is well-established law that, absent a clear
      abuse of discretion by the trial court, appellate courts must not
      interfere with the trial court’s authority to grant or deny a new
      trial.

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121-22 (Pa. 2000)

(internal citations and quotes omitted); but see Hilbert v. Katz, 455 A.2d

704, 706 (Pa.Super. 1983) (“[A]n appellate court may be more exacting in

reviewing a new trial grant than in reviewing a new trial denial.”).

      The instant award of a new trial relates to the jury failing to find factual

causation, which the trial court concluded was against the weight of the

evidence presented at trial. We note that such a holding is “[o]ne of the least

assailable” in the appellate context.    Fazio v. Guardian Life Ins. Co. of

America, 62 A.3d 396, 413 (Pa.Super. 2012) (“Because the trial judge has

had the opportunity to hear and see the evidence presented, an appellate

court will give the gravest consideration to the findings and reasons advanced




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by the trial judge when reviewing a trial court’s determination that the verdict

is against the weight of the evidence.”).

       Appellees’ claims against Einstein sound in negligence, which require

proof of: (1) a duty to conform to a certain standard for the protection of

others against unreasonable risks; (2) the defendant’s failure to conform to

that standard; (3) a causal connection between the conduct and the resulting

injury; and (4) actual loss or damage to the plaintiff. See, e.g., Brewington

for Brewington v. City of Philadelphia, 199 A.3d 348, 355 (Pa. 2018).

       Instantly, Appellees’ claims of negligence focused upon whether

Einstein’s physical therapist,2 Mr. Galuska, breached the relevant standard of

care for a medical professional with respect to his care of Ms. Boyle. The basic

contours of the events were not disputed at trial.         On the day after her

reconstruction surgery, Mr. Galuska was assisting Ms. Boyle in walking from

her recovery room to the hospital’s physical therapy facilities. Mr. Galuska

testified that he knew that Ms. Boyle was particularly at-risk for a fall that day.

See N.T. Trial, 6/27/18, at 13. At that time, Ms. Boyle was ambulating with

the assistance of a walker.         After she stood up, Ms. Boyle suddenly and

urgently needed to go to the bathroom.           She entered the recovery room

bathroom using her walker. Both Ms. Boyle and Mr. Galuska realized that the

toilet in her room was too low for her to be able to use it in her post-operative


____________________________________________


2  Einstein stipulated to the fact that Mr. Galuska is an employee. See N.T.
Trial, 6/25/18, at 174.

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condition. Accordingly, Ms. Boyle asked Mr. Galuska several times to get a

nurse to assist her in using the in-room bedpan. While Ms. Boyle was still

standing in the bathroom, Mr. Galuska handed her a bedpan, which required

Ms. Boyle to take one of her hands off the walker. He then departed the room,

stating that he would give Ms. Boyle “some privacy.” It was unclear whether

he expected Ms. Boyle to use the bedpan in the bathroom, or whether he was

trying to locate a nurse to assist Ms. Boyle. She attempted to turn her walker

around and return to bed, but began to involuntarily urinate. See N.T. Trial,

6/25/18, at 119-20. While trying to use the bedpan, Ms. Boyle was unable to

maintain her grip on the walker with her one free hand and fell. Id.

     In relevant part, Ms. Boyle and Mr. Galuska disagreed on the precise

nature of their verbal exchanges with one another during these events. Mr.

Galuska testified that Ms. Boyle requested that he leave her alone with the

bedpan in the recovery room bathroom. See N.T. Trial, 6/27/18, at 19-20.

In contrast, Ms. Boyle testified that she explicitly and repeatedly requested

the assistance of a nurse. See N.T. Trial, 6/25/18, at 116-20.

     The parties also presented expert testimony regarding the relevant

standard of care. Appellees expert, Dr. Sarah Jameson, concluded that Mr.

Galuska’s decision to hand Ms. Boyle a bedpan and leave her unassisted in the

bathroom breached his duty of care.        See N.T. Trial, 6/25/18, at 78

(“[K]nowing that she was a fall risk, to hand her a bedpan that would require

her to take her hand off the walker was an error in judgment.”). She also


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stated that even if Ms. Boyle had asked to use the bedpan in the bathroom

without assistance, Mr. Galuska should not have acquiesced to that request in

light of Ms. Boyle’s condition at the time. Id. at 79 (“I think he should have

explained to [Ms.] Boyle that that’s just not safe and I have to keep you safe,

and I’m going to have to walk you back to the bed.”).

      Einstein’s expert, Dr. Brian Leggin, espoused a different viewpoint. He

argued that Mr. Galuska had simply “respected” Ms. Boyle’s “autonomy” in

heeding her alleged requests to leave the room so that she could use the

bedpan unaided. See N.T. Trial, 6/27/18, at 68-69. Based upon the jury’s

finding of negligence, it chose to credit Appellees’ version of events as they

relate to a breach of the standard of care. See Martin v. Evans, 711 A.2d

458, 463 (Pa. 1998) (“Credibility determinations are within the sole province

of the jury.   A jury is entitled to believe all, part or none of the evidence

presented. . . .” (internal quotations omitted)).

      Einstein emphasizes that it did not explicitly concede any of the required

elements of negligence. The above discussion of the competing testimony

presented by the parties bespeaks that the “duty” and “breach” elements of

negligence were, indeed, hotly contested.           Moreover, there was also

significant evidence presented by the parties regarding the alleged damages

that Ms. Boyle suffered, which focused on her complicated medical history and

her ongoing rehabilitative needs. See N.T. Trial, 6/26/18, at 7-68, 103-140,

143-72 (Appellees’ medical experts testifying regarding the extent of her


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injuries caused by the fall); compare with N.T. Trial, 6/27/18, at 55-75, 86-

117 (Einstein’s medical experts testifying regarding the extent of Ms. Boyle’s

injuries caused by the fall). However, the trial court’s holding in this case

specifically concluded that the jury erroneously failed to find “factual

causation”3 based upon the evidence of record. The trial court concluded that

this discrete element was not reasonably disputed by the parties, and held

that the jury failed to recognize the import of the evidence presented and

neglected to follow the trial court’s instructions. We agree.

       In its analysis, the trial court focused upon the testimony of another of

Einstein’s experts, Dr. Wolf, who testified as follows regarding the results of

Ms. Boyle’s fall:

       Q:    Now, the next day there was this fall and injury to Ms.
             Boyle’s patellar tendon. Was that repaired?

       A:    That was repaired the day of the accident.

       Q:    The day of the fall.

       A:   The day of the fall, yeah. Because it’s an emergency, because
            when the wound splits open and the germs can get in, so
            that’s done as an emergency, yes.

       Q:    What is done to fix that? When the patella ruptures, what
             does the doctor do?

       A:    Well, there’s lots of ways you can do it, but he basically
             sutured it using a special wire called FiberWire and a heavy
____________________________________________


3  Under Pennsylvania law, “a negligent act is a cause-in-fact of the plaintiff’s
injuries if the harmful result would not have come about but for the negligent
conduct.” Straw v. Fair, 187 A.3d 966, 993 (Pa.Super. 2018) (internal
quotations omitted).

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            suture called PDS, and basically stitched it back to the
            bone, stitched it through holes in the bone. So you’re just
            kind of knitting it back to the bone.

      Q:    The patellar tendon was placed back on the bone where it
            had been before?

      A:    Yes. It actually pulled off, you know, the patellar
            tendon, it attaches down to the – it’s called the tibial
            tubercle. If you feel on your leg there’s like a bump right
            there. So it actually pulled off that bone. So Dr. Oni
            reattached it to that part of the bone using stitches.

N.T. Trial, 6/27/18, at 109-10 (emphasis added). The trial court reasoned

that this testimony established that Ms. Boyle suffered a ruptured patellar

tendon and that emergency intervention was necessary due to her original

surgical wound splitting open as a direct result of her fall. Id. In relevant

part, Dr. Wolf testified that the emergency surgery was necessary to restore

Ms. Boyle’s right patellar tendon to “its proper alignment” and thereby allow

“her extensor mechanism, which is her quadriceps muscle, her kneecap, quad

tendon, [and] patellar tendon to work.”     Id. at 110.   This testimony was

identical to that presented by Appellees’ experts. See N.T. Trial, 6/26/18, at

66, 153-59 (testifying that the fall caused Ms. Boyle’s surgical wound to split

open and ruptured her right patellar tendon).

      With specific respect to this testimony, the trial court provided the

following instruction to the jury regarding negligence and damages:

      In this case, ladies and gentleman, the parties have agreed that
      the plaintiff sustained some injury in this incident. The defense
      medical experts testified that [Ms. Boyle] sustained some injury,
      but the defense disputes the extent of the injuries sustained.
      Therefore, if you find that the defendant was negligent, you must

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      award the plaintiff some damage for those injuries that were
      sustained as a result of the defendant’s negligence.

Id. at 199. These instructions are in parity with the Pennsylvania Suggested

Standard Civil Jury Instructions. See Pa. SSJI (Civ.), § 7.60 (same).

      Indeed, Einstein’s counsel agreed to the issuance of these instructions

during the following exchange with the trial court:

      TRIAL COURT: 7.60, damages in case of disputed negligence and
      disputed extent of injury. That eliminates the need for factual
      cause.

      DEFENSE COUNSEL: I don’t think that’s appropriate.

      TRIAL COURT: You don’t think what is appropriate?

      DEFENSE COUNSE: I think factual cause is the standard.

      TRIAL COURT: If there is a doctor on the defense side that says
      there was an injury caused by – well, that there was an injury
      sustained in the incident, as a result of the incident, that’s an
      admission of fact against the defendant and takes factual cause
      out of the case.

      DEFENSE COUNSEL: Well, there are multiple –

      TRIAL COURT: That’s what that charge deals with.

      DEFENSE COUNSEL: Yeah, but there’s also multiple claims of
      damage here. I mean, there’s claims about braces and second –
      left leg and –

      TRIAL COURT: And this charge simply says that if you don’t –
      because I don’t have the text from [plaintiff’s counsel], I’m going
      to have to find it. It’s 7.60. The parties agree that the plaintiff
      sustained some injury in the incident. The defense medical expert
      testified that the accident caused some injury to plaintiff. The
      defense disputes the extent of the injury. Therefore, if you find
      the defendant negligent, you must award the plaintiff some
      damage for those injuries.


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      DEFENSE COUNSEL: I’m just thinking if that’s appropriate here.

      TRIAL COURT: That’s why I’m asking.

      PLAINTIFF’S COUNSEL: Well, I’m requesting it. I think it’s
      appropriate. Your guy certainly admits that she had to have
      emergency surgery in all this. He’s contesting the requirement
      for braces.

      TRIAL COURT:      Certainly the need for the second surgery on
      October 2nd –

      DEFENSE COUNSEL: It’s okay.

      TRIAL COURT: -- constitutes a damage.

      DEFENSE COUNSEL: It’s okay.

      TRIAL COURT: All right. Onward.

N.T. Trial, 6/26/18, at 204-6. Therefore, Einstein assented to this instruction.

      Einstein is technically correct in observing that it never explicitly

conceded the issue of causation during trial and that Appellees never sought

a directed verdict. See Appellant’s brief at 20. However, those arguments

ultimately miss the mark. The trial court did not hold that Einstein conceded

the issue of causation, and it did not enter a directed verdict.     Rather, it

concluded that the jury erred in finding no causation due to the content of

Einstein’s own expert testimony and the relevant jury instructions.       More

specifically, Dr. Wolf’s testimony clearly enumerated that Ms. Boyle’s fall

caused her right patellar tendon to rupture, “split” her surgical wound open,

and necessitated additional surgery. See N.T. Trial, 6/27/18, at 109-10. In

light of this testimony, the trial court instructed the jury that if it found


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negligence, it was also bound to also find causation and award damages to

Appellees. Id. at 199. Stated more succinctly, the causative link between

Ms. Boyle’s injuries and her fall was not reasonably disputed by the parties.

      Under the precedent of this Court, “[w]here the defense’s medical

expert concedes some injury as a result of the accident, the jury’s finding of

no causation is against the weight of the evidence.” Smith v. Putter, 832

A.2d 1094, 1097-98 (Pa.Super. 2003); see also Bostanic v. Barker-Barto,

936 A.2d 1084, 1088 (Pa.Super. 2007) (holding that trial court properly held

that jury’s verdict finding defendant negligent but concluding that negligence

was not a “factual cause” of the accident was against the weight of the

evidence where “all medical expert witnesses . . . agreed that plaintiff

“suffered an injury as a result of the accident”); Andrews v. Jackson, 800

A.2d 959, 964 (Pa.Super. 2002) (same). These cases are analogous to the

present circumstances.

      In relevant part, Einstein’s arguments before this Court erroneously

conflate the issues of causation and damages by emphasizing, ad nauseam,

that Appellees have not sufficiently established “damages” that are separate

from Ms. Boyle’s extensive pre-existing medical conditions. See Appellant’s

brief at 17-23. But the question of whether Ms. Boyle’s fall-related injuries

are compensable is distinguishable from the question of whether Einstein’s

negligence was the cause of those injuries. See Mirabel v. Morales, 57 A.3d

144, 152 n.8 (Pa.Super. 2012) (“[L]iability is not intertwined with damages


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when the question of damages is readily separable from the issue of liability.”).

In Smith, this Court delineated the critical distinction between damages and

causation:

      The determination of what is a compensable injury is uniquely
      within the jury’s purview; a jury may choose to find that a
      plaintiff’s pain or discomfort is the sort of ‘transient rub of life’ for
      which compensation is not warranted. Nonetheless, a jury cannot
      determine that a defendant’s negligence is not a substantial factor
      in causing the injury where the undisputed evidence indicates
      otherwise. In other words, if a jury finds causation, it may
      go on to find the injury incidental or non-compensable and
      award no damages. We would not disturb that verdict. But
      a jury is not free to find no causation where the defense
      expert concedes as much.

Smith, supra at 1098 n.1 (internal citations omitted, emphasis added).

      The jury found that Einstein was negligent with respect to Ms. Boyle’s

post-surgery fall. The testimony of Einstein’s own medical expert established

that Ms. Boyle’s fall resulted in some injury and required emergency surgery.

Consistent with the trial court’s instructions, the jury was bound to find

causation but failed to do so. Based on our review of the certified record and

governing law, we discern no legal error or abuse of discretion in the trial

court’s award of a new trial. Accord Smith, supra at 1097-98; see also

Bostanic, supra at 1088; Andrews, supra at 964.

      We must also address Einstein’s argument that the new trial should not

be limited to a determination of damages. The following basic legal precepts

govern our review of this question:

      [N]ew trials may be limited to specific issues only when this
      procedure will be fair to both parties. Where the question of

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      negligence or contributory negligence is not free from doubt, it is
      an abuse of discretion for the trial judge to grant a new trial on
      the issue of damages alone. Specifically: a trial court may grant
      a new trial limited to the issue of damages only where: (1) the
      question of liability is not intertwined with the question of
      damages, and (2) the issue of liability is either (a) not contested
      or (b) has been fairly determined so that no substantial complaint
      can be made with respect thereto.

Kindermann v. Cunningham, 110 A.3d 191, 193 (Pa.Super. 2015).

      Einstein’s discussion of this issue is cursory. Beyond reciting the above

standard of review, its substantive argument consists of a single paragraph

that merely parrots the case law. See Appellant’s brief at 24.

      As an initial matter, we reiterate that the question of damages in this

case is readily separable from the issue of liability. Based on our discussion

above of Ms. Boyle’s accident and her resulting injuries, we find this Court’s

holding in Mirabel instructive: “The question of the nature and extent of the

injuries [plaintiff] suffered and the amount she [is] owed to compensate her

for those injuries was not related, and readily separable, to the question of

who was liable for the accident.” Mirabel, supra at 152 n.8. The issues of

liability and damages are not inextricably intertwined in this case. Id.

      Moreover, Einstein did not reasonably challenge causation at trial and

fails to identify any errors in the certified record that would cast doubt upon

the jury’s separate finding of negligence. As such, liability in this case was

“fairly determined.” Id. at 152 (“Liability is ‘fairly determined’ if there were

no errors on the record that might have affected the jury’s verdict on

liability.”); see also Trial Court Opinion, 11/19/18, at 10-11 (“Ms. Boyle’s

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testimony described clearly and in great detail the negligent conduct of

Einstein’s physical therapist that caused her to fall. It was within the province

of the jury to believe her testimony over that of the physical therapist.”).

      Finally, although Einstein argues that limiting the new trial to the issue

of damages would work a “substantial injustice,” we are persuaded that the

true inequity here would be in forcing Appellees to relitigate the issue of

liability without cause.   See Mano v. Madden, 738 A.2d 493, (Pa.Super.

1999) (“[Defendant] had a fair opportunity to litigate the issues of negligence

and contributory negligence. It would be unfair to the [plaintiffs] to force

them to re-litigate these issues in order to obtain appropriate damages for

themselves . . . .”). Based on the foregoing discussion, we discern no legal

error or abuse of discretion in the trial court’s award of a new trial limited to

the issue of damages.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/20




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