J-A31035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID A. AND KRISTEN E. GULLA, HIS                 IN THE SUPERIOR COURT OF
WIFE,                                                    PENNSYLVANIA

                            Appellants

                       v.

DOUGLAS CHYATTE,

                            Appellee                    No. 618 MDA 2015


               Appeal from the Judgment Entered March 20, 2015
                in the Court of Common Pleas of Luzerne County
                         Civil Division at No.: 3566-2007


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED JANUARY 06, 2016

        Appellants, David A. Gulla, and Kristen E. Gulla, his wife, appeal from

the judgment entered following a jury verdict in favor of Douglas Chyatte,

M.D., Appellee in this medical malpractice case.        Appellants challenge the

denial of their motion for judgment notwithstanding the verdict (judgment

n.o.v.) and their motion for a new trial. They also challenge the admission

of certain evidence. We affirm on the basis of the trial court opinion.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them at length here.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31035-15



     We note briefly for the sake of clarity and convenience of reference

that Appellant David Gulla underwent spinal surgery, specifically, anterior

lumbar interbody fusion (also referred to as “ALIF”), performed by Appellee

Dr. Chyatte on April 5, 2005. After he was re-admitted to the hospital with

severe pain in the lower back and left leg, Dr. Chyatte performed a second

surgery on Mr. Gulla on April 14, 2005.   Mr. Gulla had undergone similar

surgery previously, in November of 1994, while he was in the Navy.       He

received a medical discharge in August of 1995. (See Appellants’ Brief, at

7). Mr. Gulla elected not to undergo a third surgery with Dr. Chyatte. (See

id. at 11). In September 2010 he underwent surgery with Dr. Christian I.

Fras. (See id.).

     After trial, the jury answered “Yes” to the following question: “Do you

find that [Appellee], Douglas Chyatte, MD was negligent?”     (Verdict Slip,

10/20/14, at 1; see also N.T. Trial, 10/20/14, at 727-30).    However, the

jury unanimously answered “No” to Question 2, “[W]as the negligence of

[Appellee], Douglas Chyatte, MD a factual cause in bringing about the

injuries and harm of [Appellant] David A. Gulla?”    The jury unanimously

answered “Yes” to Question 3, whether Appellee Dr. Chyatte “sufficiently

disclosed the risks associated with [ALIF] surgery to [Appellant] David A.

Gulla prior to performing the surgery?”

     As instructed in the verdict slip, because Appellants could not recover

based on the answers to these three questions, the jury did not answer the



                                    -2-
J-A31035-15



remaining three questions, and they returned to the courtroom.                 (See

Verdict Slip, at 2).     The trial judge polled the jury, which was unanimous.

(See N.T. Trial, at 730).

       Appellants maintain chiefly that the jury’s verdict, finding that Dr.

Chyatte’s negligence was not the factual cause of any harm to Appellants,

was against the weight of the evidence, requiring a judgment n.o.v. and a

new trial on damages, or a new trial on causation and damages.                 (See

Appellants’ Brief, at 15).

       Appellants raise four questions on appeal:

       A. Did the trial court err and abuse its discretion by denying
       [Appellants’] post-trial motion for judgment n.o.v. as to
       causation and a new trial on damages?

       B. Did the trial court err and abuse its discretion by denying
       [Appellants’] post-trial motion for a new trial as to both
       causation and damages?

       C. Did the trial court err in allowing the publication to the jury of
       medical records containing hearsay?

       D. Did the trial court err in allowing the publication to the jury
       of a medical illustration (Exhibit D-82b)?

(Appellants’ Brief, at 4).1


____________________________________________


1
  We note for the sake of completeness that there is no indication of any
objection to any of the jury instructions in the record, Appellants did not
include a challenge to the legal adequacy of the jury instructions in their
Concise Statement of Errors, (see Concise Statement, 5/06/15, at 1-5), and
Appellants do not present any challenge to the jury instructions in their brief
on appeal.



                                           -3-
J-A31035-15



      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to the issues Appellants have raised on appeal. The

trial court opinion properly disposes of the questions presented. (See Trial

Court Opinion, 6/05/15, at unnumbered pages 4-8) (finding: (1) it was

impossible to find that Appellants were entitled to judgment as matter of

law; trial court properly denied judgment n.o.v.; (2) new trial was not

warranted when jury did not find negligence to be a substantial factor in

causing injury to Appellant where medical experts disagreed on whether

alleged injury had occurred; verdict did not shock sense of justice; (3)

medical records were properly admitted into evidence; Appellants failed to

show how they were prejudiced by publication to jury; and (4) properly

authenticated medical illustrations were relevant to show proper placement

of “cages” used in spinal surgery; trial court properly permitted publication

to jury). Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016



                                      -4-
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                             IN THE COURT OF COMMON PLEAS
                                   OF LUZERNE COUNTY


DAVID A. GULLA and KRJSTEN
GULLA, his wife,
                       Plaintiffs                     CIVIL ACTION--LAW
        V.


DOUGLAS CHYATTE, MD,
GEISINGER MEDICAL CENTER,                               NO: 3566 OF 2007
                     Defendants


                              OPINION PURSUANT TO 1925{a){l)

BY THE HONORABLE MICHAEL T. VOUGH

        Plaintiffs, David A. Gulla and Kristen Gulla; initiated this matteron April 3, 2007

by filing a Praecipe of Summons against Defendants, Douglas Chyatte, MD, Geisinger

Medical Center, Geisinger Medical Group, Geisinger Health Group and Geisinger Clinic. A

Complaint was eventually filed on March 20, 2008 and alleged medical negligence against

the Defendants.   Specifically, Plaintiffs claimed that negligent medical surgery and treatment

were provided by Douglas Chyatte, MD at the Geisinger Medical Center.

       Trial commenced on October 14, 2015 against Defendants Chyatte and Geisinger

Medical Center. After four days of testimony, the jury reached a verdict on October 20,

2015. Although the jury found Dr. Chyatte to be negligent, they determined that his

negligence was not a factual cause of the injuries suffered by David Gulla. The jury also

determined that Dr. Chyatte sufficiently disclosed the risks associated with the surgery to

David Gulla.

       On October 29, 2014, Plaintiffs filed a motion for post-trial relief requesting a

judgment notwithstanding the verdict and a new trial on damages or both damages and



                                                         Filing ID: 2065449
                                                     2007-03566-0250 Opinion

                                                     Luzerne County Civil Records
                                                        6/5/2015 11 :20:59 AM
                                                                            Circulated 12/18/2015 01:01 PM




causation. Plaintiffs filed an amended motion for post-trial relief and brief on January 22,

2015. In their amended motion, Plaintiffs again requested a judgment notwithstanding the

verdict and a new trial on damages or both damages and causation. Defendants responded to

and opposed both motions. On March 11, 2015, an Order was issued denying the motion and

amended motion for post-trial relief filed by Plaintiffs.

        A timely notice of appeal was filed by Plaintiffs on April 8, 2015. Although

Plaintiffs failed to serve this Court with a copy of the notice of appeal as required by

Pa.R.A.P. 906(a)(2) we ordered that they file and serve a concise statement of errors

complained of on appeal within twenty-one days of April 20, 2015. Plaintiffs filed and

served their concise statement-on May 6, 2015 to which Defendants responded on May 18,

2015. In their statement, Plaintiffs allege that the trial court erred in denying their motion for

a judgment notwithstanding the verdict as to causation and a new trial on damages. They

also allege error in denying a new trial as to causation and damages. Finally, Plaintiffs allege

error by the trial court in allowing the publication to the jury of medical records containing

hearsay and a medical illustration.

       A judgment notwithstanding the verdict should only be entered in a clear case with

any doubts resolved in favor of the verdict winner. Bilih Center v. St. Paul Companies, Inc.,

787 A.2d 376, 383 (Pa. 2001) quoting, Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992).

A judgment notwithstanding the verdict may be entered in two instances: "(l) where the

movant is entitled to judgment as a matter of law; and/or (2) the evidence was such that no

two reasonable minds could disagree that the verdict should have been rendered for the

movant." Vanzandt v. Holy Redeemer Hospital, 806 A.2d 879, 885 (Pa.Super. 2002)

quoting Parker v. Howard S. Freilich, 803 A.2d 738, 744 (Pa.Super. 2002)(citation omitted).
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We may not vacate a jury's verdict unless "the evidence was such that no two reasonable

minds could disagree that the outcome should have been rendered in favor of the movant.

Birth Center, 787 A.2d at 383 quoting, Moure, 604 A.2d at 1007.

        On April 5, 2005, Dr. Chyatte performed surgery on David Gulla consisting of an

anterior lumbar interbody fusion with the placement of two interbody cages. It is this surgery

that essentially forms the basis for Plaintiffs' complaint. Plaintiffs' expert, Dr. Gregory J.

Przybylski testified as follows:

               In my opinion, Dr. Chyatte deviated from the standard of care in the
               placement of the paired cages. The purpose of the cages is to safely
               sit within the perimeter footprint of the vertebral body. And all of
               the imaging that I reviewed revealed that the left-sided cage was not
               within that footprint and, in fact; was extraspinal, which led to its
               subsequent removal after the April 13th CT scan was done.

N.T. (10/15/14) at 332.

        Dr. Przybylski went on to state:

               In my opinion, to within a reasonable degree of medical certainty,
               the operations of April 5th and April 14th did lead to permanent
               consequences for Mr. Gulla that it continued - - that include
               continued low back pain, left leg pain, and an L4 and/or LS
               distribution accompanied by weakness of his foot. And typically
               if a neurological deficit is present for two years in a patient of his
               age group, it is not something that is going to get better.

N.T. (10/15/14) at 348.

       Dr. Chyatte testified that cage migration is a known risk of anterior lumbar interbody

fusion surgery. N.T. (10/16/14) at 521. The defense expe1i, Dr. William Welch, also

indicated that hardware migration was a known risk of this type of surgery. N. T. (10/17 /14)

at 608. Dr. Welch also gave an opinion that Dr. Chyatte's care was reasonable and

appropriate and within the standard of care. Id. at 620.
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        As in most medical malpractice cases, there was conflicting testimony presented by

the experts. A jury "is free to accept or reject the credibility of both expert and lay witnesses,

and to believe all, part or none of the evidence." Gunn v. Grossman, 748 A.2d 1235, 1240

(Pa.Super. 2000) citing Gaydos v. Gaydos, 693 A.2d 1368 (Pa.Super. 1997). "The weight to

be assigned to expert testimony lies within the province of the jury." Gunn 748 A.2d at 1240

citing Flanagai1 v. Labe A.F.L. - C.I.O., 666 A.2d 333, 335 (Pa.Super. 1995).

        Plaintiffs allege that they are entitled to a judgment notwithstanding the verdict

simply because the jury found Dr. Chyatte to be negligent. This allegation is not supported

by the law. A jury is to decide whether a defendant's negligence was a substantial factor in

bringing about an injury. Peterson v. Shreiner, 822 A.2d 833, 840 (Pa.Super. 2003). This

principle applies to medical malpractice cases as well. "In a medical negligence case, as in

negligence cases generally, the plaintiff has the burden of proving that the defendant's

conduct was negligent, i.e., fell below the standard of care, and that the negligence was the

factual cause of the injury to the plaintiff." Renna v. Schadt, 64 A.3d 658, 668 (Pa.Super.

2013). A finding of negligence does not automatically result in a finding of factual cause.

Our review of the evidence presented during trial does not lead us to conclude the verdict

should have been rendered for Plaintiffs. It was certainly reasonable for the jury to find that

although Dr. Chyatte was negligent, his negligence did not contribute to David Gulla's

injuries. Because Plaintiffs were not entitled to a judgment as a matter of law, and it is

impossible to find that the jury's verdict should have been in favor of Plaintiffs, their request

for a judgment notwithstanding the verdict was properly denied.

       With regard to a motion for a new trial, the Pennsylvania Superior Court has

summarized its scope of review as follows:
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                   The decision of whether to grant a new trial is within the sound
                   discretion of the trial court. We will not disturb the trial court's
                   decision unless the court palpably abused its discretion or committed
                   an error law. In evaluating an order awarding a new trial, we keep
                   in mind that a new trial is warranted where the jury's verdict is so
                   contrary to the evidence as to shock one's sense of justice. However,
                   a new trial should not be granted because of a mere conflict in
                   testimony or because the trial judge, on the same facts, would have
                   arrived at a different conclusion.

    Peterson, 822 A.2d at 836 citing Mano v. Madden, 738 A.2d 493, 495-96 (Pa.Super.

    1999)(en banc)(citations omitted). "If there is any support in the record for the trial court's

    decision to deny a new trial, that decision must be affirmed." Gunn, 7 48 A.2d at 123 9 citing

    Johnson v. Hytmdai Motor America, 698 A.2d 631 (Pa.Super. 1997).

           David Gulla's first back surgery took place inNovember, 1994. This surgery

    involved a spinal fusion of the L5-Sl. N.T. (10/14/14) at 132. He has suffered from back

problems for more then twenty years. Defendants' expert, Dr. Welch, testified that he did

not agree that Mr. Gulla's back and leg symptoms and permanency of the condition were

directly related to Dr. Chyatte's surgery. N.T. (10/17/14) at 620. Dr. Welch went on to state:

"I think that Mr. Gulla, unfortunately, has degenerative changes that he's had since probably

his teens, and its ongoing as he gets older." Id.

                   Where there is no dispute that the defendant is negligent and
                   both parties' medical experts agree the accident caused some
                   injury to the plaintiff, the jury may not find the defendant's
                   negligence was not a substantial factor in bringing about at
                   least some of plaintiffs injuries. See Neison v. Hines, 539 Pa.
                   516, 521, 653 A.2d 634, 637 (1995); Mano1, supra. Compare
                   Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439 (1995),
                   appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995); Holland v.
                   Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984). Such a verdict
                   is contrary to the weight of the evidence adduced at trial. See
                   Neison, supra; Mano, supra. In other words, "a jury is entitled
                   to reject any and all evidence up until the point at which the verdict
                   is so disproportionate to the uncontested evidence as to defy common

I
    Mano v. Madden, 738 A.2d 493, 495 (Pa.Super. 1999)(en bane).
                                                                              Circulated 12/18/2015 01:01 PM




                sense and logic." Neison, supra at 521, 653 A.2d at 637.

Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002).

        If the medical experts testifying on behalf of both plaintiff and defendant disagree as

to whether an alleged injury actually occurred, "it is not against the weight of the evidence

 for a jury to find that an injury did not occur." Kraner v. Kraner, 841 A.2d 141, 145

 (Pa.Super. 2004). A new trial is not warranted when a jury does not find the negligence of

defendant to be a substantial factor in causing injury to plaintiff where the medical experts

disagree that an alleged injury had occurred. Henery, 661 A.2d at 442. When medical

experts disagree on whether an accident caused injury to the plaintiff, the jury is free to

. accept the testimony of one expert and reject the testimony of the other. Kraner, 841 A~2d at ···

 141 citing Holland v. Zelnick, 478 A.2d 885 (Pa.Super. 1984).

        It is highly likely that although the jury found Dr. Chyatte to be negligent, they did

not find his negligence to be a factual cause due to Mr. Gulla's significant history of back

problems. In no way was our sense of justice shocked by the verdict in this case. There is

substantial support in the record for the jury's finding that Dr. Chyatte was negligent but his

negligence was not a factual cause of Mr. Gulla's alleged injury. As a result, Plaintiffs'

motion for a new trial was properly denied.

        Plaintiffs' third allegation of error is that the Court erred in allowing medical records

containing hearsay to be published to the jury. At the start of trial, defense counsel objected

to allowing the jury to see certain medical records which were to be admitted into evidence

as joint exhibits. This objection was overruled. N.T. (10/14/14) at 15-19.

        "Medical records are admissible under the hearsay rules as evidence of facts

contained therein but not as evidence of medical opinion or diagnosis." Turner v. Valley
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Housing Development Corp., 972 A.2d 531, 537 (Pa.Super. 2009) quoting Folger v. Dugan,

876 A.2d 1049, 1055 (Pa.Super. 2005). Medical records may be introduced "as evidence of

facts contained therein without producing the person who made the notation in the record or

the record's custodian." Folger, 876 A.2d at 1056 citing Inre Indyk, 413 A.2d 371, 374 (Pa.

1979).

         As previously indicated, the medical records admitted into evidence and shown to the

jury were joint exhibits which defense counsel initially attempted to move into evidence.

N.T. (10/14/14) at 15. Both parties were permitted to use the exhibits and Plaintiffs make no

specific allegation as to how they were prejudiced by their publication to the jury. Allowing

the jury to view the medical _records admitted _ir1~0 evidence as joint exhibits was not error.

         Plaintiffs' final allegation of error concerns medical illustrations publicized to the

jury as exhibits. Although Dr. Chyatte did not prepare the illustrations, he did provide the

information to the medical illustrator for their preparation. Dr. Chyatte also testified that the

illustrations were accurate depictions of ideal cage placement, the actual cage placement, and

the location of the cages after Mr. Gulla underwent a second surgery. Id. at 107-109.

         In addressing the admissibility of evidence the Pennsylvania Superior Court has

stated: "The admission or exclusion of evidence is within the sound discretion of the trial

court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a

ruling by the trial court upon a showing that it abused its discretion or committed an error of

law." McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006) quoting B.K.v. J.K.,

823 A.2d 987, 991-92 (Pa.Super. 2003). An evidentiary ruling must be erroneous as well as

harmful or prejudicial before it will amount to reversible error. Trnney Media Fuel, Inc. v.

Toll Bros., 725 A.2d 836, 839 (Pa.Super. 1999). "The fundamental consideration in
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reviewing a trial court's decision regarding the admission of evidence is its relevance."

Santarlas v. Leaseway Motorcar Transport Co., 689 A.2d 311, 313-14 (Pa.Super.

1997)( citations omitted). "Evidence is relevant if it tends to make a fact at issue more or less

probable." Id. at 314. Clearly the medical illustrations were relevant since they showed the

proper placement of the cages, the actual placement location of the cages and location of the

cages at the time of the second surgery.

        With regard to demonstrative evidence such as these medical illustrations, the

comment to Pennsylvania Rule of Evidence 901 provides: "Demonstrative evidence such as

photographs, motion pictures, diagrams and models must be authenticated by evidence

sufficient to support a finding that the demonstrative evidence.fairly and accurately

represents that which it purports to depict." Pa.R.E. 901, Comment.

               Demonstrative evidence is "tendered for the purpose of rendering
               other evidence more comprehensible for the trier of fact." 2 McCormick
               on Evidence Section 212 (5th ed. 1999). "As in the admission of
               other evidence, a trial court may admit demonstrative evidence whose
               relevance outweighs any potential prejudicial effect." Commonwealth v.
               Serge, 586 Pa. 671, 896 A.2d 1170, 1177 (2006)(citation omitted).
               "Demonstrative evidence may be authenticated by testimony from a witness
               who has knowledge 'that a matter is what it claimed to be.'" Id. ( citing
               Pa.R.E. 901(b)(l)).

Kopytin v. Aschinger, 947 A.2d 739, 747 (Pa.Super. 2008).

       The medical illustrations were used by Defendants to make the placement of the

cages more understandable for the jury. Their relevance outweighed any potential prejudicial

effect and Dr. Chyatte sufficiently authenticated each illustration. As a result, the medical

illustrations were properly admitted into evidence and published to the jury at trial.
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                                     BY THE COURT:

                                     ~           7~l/cyj
DATE: __           6~-_G_-_/5    _   MICHAELT.VouGH,         1.


Copies To:
Ralph Johnston, Jr., Esquire
Charles E. Wasilefski, Esquire
Donald F. Ladd, Esquire
