J-A28029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREGORY LINGHAM,                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

GLORIA FAISON,

                            Appellee                 No. 530 EDA 2016


                Appeal from the Judgment Entered April 12, 2016
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 140903148


BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 11, 2017

       Appellant, Gregory Lingham (“Lingham”), appeals from the April 12,

2016 judgment entered on a jury verdict in favor of Gloria Faison (“Faison”).

Lingham initiated the underlying personal injury/negligence action following

an automobile accident in which Faison struck Lingham’s vehicle. We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

             On October 4, 2012, [Lingham] was driving his car and
       stopped for a red light near the intersection of Diamond Street
       and Sedgley Street in Philadelphia, Pennsylvania. N.T. 10/26/15
       at 60. While [Lingham] was waiting for the light to turn green,
       his vehicle was rear-ended by [Faison’s] car, resulting in minor
       body damage to both cars. Id. at 60-62, 64-65, 103-104.
       [Faison] did not dispute that she hit [Lingham], but did claim
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     that the stoplight was green and that [Lingham] had inexplicably
     stopped “in the road,” rather than at the light itself, and that
     [Lingham’s] brake lights were not illuminated. See id. at 98,
     108. [Lingham] and [Faison] spoke briefly after the accident,
     and police officers arrived a short time later, but neither
     individual requested medical assistance. Id. at 63, 101-104, 113.
     Both parties then left the scene in their respective vehicles. N.T.
     10/26/15 at 63, 104. [Lingham] then took care of a few family
     matters, and subsequently made his way to Lankenau Hospital’s
     emergency room, where he was examined, given a prescription
     muscle relaxer for neck and back pain, and then discharged. Id.
     at 63-64.

            Approximately one week after the accident, [Lingham]
     went to Progressive Rehab to start a physical therapy regimen
     that included heat applications, electric stimulation, lidocaine
     injections, and various exercises. N.T. 10/26/15 at 66-70; N.T.
     10/27/15 at 48-49. Lingham received treatment at Progressive
     several times a week for roughly six months, but eventually
     stopped therapy due to his belief that this rehabilitation program
     was not working. N.T. 10/26/15 at 70. He then went to Pain
     Management & MRI facility on April 24, 2013, where he was seen
     by a doctor who recommended that Lingham should come back
     in four-to-six weeks for a follow-up visit and additional care. Id.
     at 70-72; N.T. 10/27/15 at 50-52. Despite this advice, Lingham
     never returned to Pain Management & MRI facility. N.T.
     10/27/15 at 52-53. Lingham continued to take prescription
     painkillers, but failed to seek any further medical care for the
     next year and a half. N.T. 10/26/15 at 71-72; N.T. 10/27/15 at
     53.

           [Lingham] subsequently engaged the services of an
     attorney who filed suit against Faison on September 23, 2014. At
     [Lingham’s] lawyer’s recommendation, [Lingham] went to a
     medical facility in Oaks, Pennsylvania for additional treatment.
     N.T. 10/26/15 at 73.3 In turn, the staff at this facility referred
     him to North American Spine and Pain Center where he was
     evaluated by Dr. Kieran Slevin. On November 24, 2014, in his




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       office, Dr. Slevin performed a rhizotomy[1] on portions of
       [Lingham’s] cervical spine. Id. at 72-73, 75-78.
              3
               [Lingham] never provides a name for this facility in
              Oaks, Pa.

             On October 26, 2015, this case proceeded to a jury trial
       that was presided over by this [c]ourt. Prior to trial beginning,
       Faison’s attorney filed an oral motion-in-limine to preclude very
       limited portions of pre-trial videotaped trial testimony [of
       Lingham’s] expert Dr. Vincent DiStefano, regarding the nature of
       rhizotomy procedures, as well as whether it was reasonable and
       necessary for Lingham to receive this procedure under the
       circumstances. Id. at 3-7. [Faison’s] counsel argued that Dr.
       DiStefano did not hold a sufficient level of specialized knowledge
       regarding rhizotomies and was therefore not qualified to render
       an opinion regarding whether this procedure was reasonable or
       necessary. After oral argument, this [c]ourt determined that Dr.
       DiStefano had insufficient knowledge, experience, or expertise
       regarding the rhizotomy procedure and that [Lingham] was
       thereby precluded from present[ing] that very limited portion of
       Dr. DiStefano’s videotaped trial deposition as to whether
       [Lingham’s] rhizotomy procedure was reasonable and necessary
       under the circumstances. Id. at 4-5, 12-15.

             The parties then presented their respective cases, and [the
       jurors] began their deliberations on October 27, 2015. The jury
       verdict found that while [Faison’s] admitted negligence caused
       the accident, [Lingham] did not suffer a serious impairment of a
       bodily function. As a result of this finding, [Lingham] was not
       awarded any non-economic damages.[2] See N.T. 10/27/15 at
       122-24; Trial Worksheet at 1.
____________________________________________


1
  “[A] rhizotomy is a procedure where nerves along the spinal column are
burned or severed, which prevents those nerves from transmitting sensory
impulses to the brain. This can provide the recipient with pain relief in the
areas of the body previously served by the operated-upon nerves.”        Trial
Court Opinion, 4/13/16, at 2 n.2 (internal citations and quotation marks
omitted).
2
   Lingham selected the limited tort option in his policy of automobile
insurance. The trial court explained the ramifications of selecting limited
(Footnote Continued Next Page)


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J-A28029-16



            On November 4, 2015, [Lingham] filed his Post-Trial
      Motion arguing that this [c]ourt had improperly precluded the
      limited portion of Dr. DiStefano’s video-taped testimony and that
      he should be given a new trial as a result. Post-Trial Motion at 2-
      8.

           On November 5, 2015, this Court ordered both parties to
      submit supplemental briefs addressing this issue. Ceisler Order,
      11/5/15 at 1. Finding [Lingham’s] arguments to be completely
      unpersuasive, this [c]ourt denied [Lingham’s] Post-Trial Motion
      via an order docketed on January 29, 2016. Ceisler Order,
      1/27/16 at 1….

Trial Court Opinion, 4/13/16, at 2-4.

      On April 12, 2016, Lingham filed his notice of appeal,3 and both

Lingham and the trial court complied with Pa.R.A.P. 1925.          On appeal,

Lingham presents the following issues for this Court’s consideration:


                       _______________________
(Footnote Continued)

tort, as opposed to the full tort insurance option, as follows: “a person who
elects to purchase a car insurance policy that provides only limited tort
coverage cannot recover non-economic damages under most circumstances,
until he has suffered a ‘serious injury’ in [a] car accident due to another’s
negligence. 75 Pa.C.S. § 1705(d).” Trial Court Opinion, 4/13/16, at 1-2,
n.1. “‘Serious injury’ is defined as ‘a personal injury resulting in death,
serious impairment of body function or permanent serious disfigurement.’
[75 Pa.C.S. §] 1702.” Id. Because Lingham failed to prove to the jury that
he suffered any serious bodily injury, the jury returned a verdict in favor of
Faison. Id. at 1 (citing Jury Verdict-Civil Trial Worksheet, 10/27/15 at
unnumbered 1).
3
  The record reflects that Lingham filed his notice of appeal on February 5,
2016, prior to the entry of judgment. However, Lingham filed a praecipe for
the entry of judgment in favor of Faison, and judgment was entered on April
12, 2016. Accordingly, we shall address the merits of this appeal. See
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 515
(Pa. Super. 1995) (holding that this Court was not required to quash the
(Footnote Continued Next Page)


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        1. Whether [t]he trial court abused its discretion and otherwise
        committed error of law when it precluded Dr. Vincent DiStefano
        from testifying regarding the reasonableness, necessity and
        relatedness of [Lingham’s] surgical procedure.

        2. Whether the trial court abused its discretion and otherwise
        committed error of law when it based its opinion for precluding
        Dr. DiStefano’s testimony regarding the reasonableness,
        necessity and relatedness of [Lingham’s] surgical procedure on
        Dr. DiStefano’s testimony stating he does not know what the
        standard of care is for a pain management doctor.

        3. Whether the trial court abused its discretion and otherwise
        committed error of law when it precluded Dr. Vincent DiStefano
        from testifying regarding the reasonableness, necessity and
        relatedness of [Lingham’s] surgical procedure when [Faison]
        never filed a Motion in Limine stating her grounds for precluding
        that testimony.

Lingham’s Brief at 6.4

        In Lingham’s first two issues, he alleges the trial court erred in ruling

that Dr. DiStefano was not qualified to testify as an expert concerning

whether the rhizotomy Lingham underwent was reasonable, necessary, and

related to the motor vehicle accident. We review such a challenge bearing in

mind the following principles:

        In order to qualify as an expert witness in a given field, a
        witness normally need only possess more expertise than is
        within the ordinary range of training, knowledge, intelligence, or
        experience. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474,
        481, 664 A.2d 525, 528 (1995). Thus, ordinarily, the test to be
        applied when qualifying an expert witness is whether the witness
                       _______________________
(Footnote Continued)

appeal and could address the merits of an appellant’s claims where
judgment was entered after the notice of appeal was filed).
4
    We have renumbered Lingham’s issues for purposes of our discussion.



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J-A28029-16


      has any reasonable pretension to specialized knowledge on the
      subject under investigation. Id. at 480, 664 A.2d at 528
      (emphasis original).

Freed v. Geisinger Medical Center, 971 A.2d 1202, 1206 (Pa. 2009).

Moreover, our Rules of Evidence provide as follows:

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

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

            (b) the expert’s scientific, technical, or other
            specialized knowledge will help the trier of fact to
            understand the evidence or to determine a fact in
            issue; and

            (c) the expert’s methodology is generally accepted in
            the relevant field.

Pa.R.E. 702.    Ultimately, the determination as to whether a witness is

qualified to testify as an expert is left to the discretion of the trial court.

Wexler v. Hecht, 847 A.2d 95, 98 (Pa. Super. 2004).

      Here, the trial court addressed Lingham’s challenge to its ruling on Dr.

DiStefano’s testimony as follows:

             [Lingham’s] challenge to this [c]ourt’s limited preclusion of
      Dr. DiStefano’s testimony fails for two reasons. First, [Lingham]
      has failed to offer any explanation as to how he was prejudiced
      by this ruling. See Post-Trial Motion at 5. The jury heard ample
      evidence regarding the fact that [Lingham] did in fact undergo a
      rhizotomy procedure—that was never in dispute. The jury heard
      and saw ample evidence regarding the nature and extent of his
      injuries5 and thus had a more than sufficient evidentiary basis
      for evaluating the severity of his injuries. Whether the rhizotomy
      was reasonable or necessary was irrelevant. The fact is that

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J-A28029-16


     [Lingham] underwent the procedure, the jury heard all about it,
     and could consider this evidence in determining whether he
     sustained a serious injury.
          5
             This evidence included a video presented by
          [Faison] which showed [Lingham] actually preaching
          at a Baptist church in December 2013 with
          impressive physical vigor and animation, despite his
          claim of serious physical impairment due to the
          October 2012 accident. See N.T. 10/27/15 at 62-66.

           Second, the evidence clearly indicated that Dr. DiStefano
     possessed nothing more than a vague understanding of the
     rhizotomy procedure, and was completely unequipped to provide
     the jury with competent, accurate expert testimony regarding
     the putative reasonableness and necessity of Lingham’s
     November 24, 2014 surgery. Dr. DiStefano has never performed
     a rhizotomy procedure, and his only “experience” with the
     procedure was watching someone else perform it nearly five
     decades ago. DiStefano Deposition at 10, 35. In fact, Dr.
     DiStefano has not done a single cervical spine operation during
     the entirety of his professional career. Id. at 10. Moreover, by
     his own words, Dr. DiStefano expressly stated that he did not
     know what kind of medicine Dr. Slevin specialized in, nor did he
     know what the standard of care was for this procedure. Id. at
     55-56.6 In sum, the videotaped deposition of Dr. DiStefano
     revealed that he had no real familiarity with rhizotomies, was
     unable to provide an appropriate explanation regarding why Dr.
     Slevin performed this procedure upon [Lingham], or whether
     that decision was medically justifiable under the circumstances.
     Accordingly, this [c]ourt properly precluded the portions of Dr.
     DiStefano’s videotaped deposition in which he opined about the
     reasonableness and necessity of [Lingham’s] rhizotomy surgery.
          6
            Ms. Samuels: “In this situation, Mr. Lingham,
          without a medical recommendation went to Dr.
          Slevin, without medical records, without MRI films.
          Dr. Slevin spoke to him, examined him and
          performed a surgical procedure on him that same
          day. Is that the normal standard of care?”

           Dr. DiStefano: “It’s not the standard of care in the
          areas where I practice. I can’t speak for Dr. Slevin.”


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J-A28029-16


Trial Court Opinion, 4/13/16, at 6-7 (one footnote omitted) (emphases in

original).

      Here, Dr. DiStefano was not precluded from testifying; rather, Dr.

DiStefano was precluded from testifying as an expert regarding rhizotomies.

As the trial court stated, Dr. DiStefano was unable to illustrate any

particularized knowledge of the rhizotomy procedure, he could not identify

the standard of care, and his only familiarity with rhizotomies came from

observing the procedure performed by a physician nearly fifty years ago.

Under the standards discussed above, we discern no abuse of discretion in

the trial court precluding Dr. DiStefano from testifying as an expert with

respect to rhizotomies.

      Finally, in Lingham’s third issue, he argues that the trial court erred

when it precluded Dr. DiStefano from testifying because Faison’s counsel did

not file a written motion in limine, but instead made the motion orally.

However, we are constrained to conclude that Lingham waived this claim of

error because he did not raise it in his post-trial motion. See L.B. Foster

Co. v. Lane Enterprises, Inc., 710 A.2d 54 (Pa. 1998) (stating

“Pa.R.Civ.P. 227.1 requires parties to file post-trial motions in order to

preserve issues for appeal. If an issue has not been raised in a post-trial

motion, it is waived for appeal purposes.”).

      Assuming, arguendo, that Lingham had properly raised this claim in a

post-trial motion, we would deem the issue waived due to Lingham’s failure


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to present any argument on this issue in his appellate brief. See Jones v.

Jones, 878 A.2d 86, 90 (Pa. Super. 2005) (stating that a failure to argue an

issue and cite authority supporting the argument constitutes a waiver of that

issue on appeal).

     For the reasons stated above, we conclude that Lingham is entitled to

no relief. Accordingly, we affirm the judgment entered in favor of Faison.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2017




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