J-A28039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HELEN SALIMAN OGIOBA, AS                   :   IN THE SUPERIOR COURT OF
    EXECUTRIX OF THE ESTATE OF                 :        PENNSYLVANIA
    LEWIS OGIOBA                               :
                                               :
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :   No. 606 EDA 2017
                                               :
    DR. CHIRAAG GUPTA AND                      :
    NORTHAMPTON COUNTY HOSPITAL                :
    COMPANY, LLC                               :

              Appeal from the Judgment Entered January 12, 2017
      In the Court of Common Pleas of Northampton County Civil Division at
                         No(s): C-0048-CV-2013-07626


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                  FILED APRIL 23, 2018

        Appellant, Helen Saliman Ogioba, as Executrix of the Estate of Lewis

Ogioba, appeals the January 12, 2017 Judgment entered in favor of

Appellees, Dr. Chiraag Gupta (“Dr. Gupta”) and Northampton County

Hospital Company, LLC (“Northampton”). Upon careful review, we affirm.

        The relevant factual and procedural history is as follows. On August 2,

2011, after playing basketball, 15-year-old Lewis Ogioba (“Decedent”)

presented at Easton Hospital Emergency Room1 at 8:00 P.M. with symptoms

including shortness of breath, fatigue, weakness, and coughing up copious
____________________________________________


1 At the time of the incident, Appellee Northampton owned, operated and
controlled the facility known as Easton Hospital.
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amounts of sputum.     Dr. Gupta treated Decedent for asthma, administered

Albuterol medication, and discharged Decedent after three hours of

observation.   In the early morning hours of August 3, 2011, Decedent

suffered cardiopulmonary arrest and returned to the hospital in an

ambulance, where medical staff pronounced him dead at 3:00 A.M.            An

autopsy later revealed that Decedent suffered from a heart condition called

hypertrophic cardiomyopathy, a rare genetic disorder that causes the

muscles inside the heart to thicken.

      On January 2, 2014, Appellant filed a Complaint bringing Wrongful

Death and Survival Actions against Appellees.         On August 21, 2014,

Appellant filed a First Amended Complaint. On February 3, 2015, Appellant

filed a Second Amended Complaint, and Appellant filed a Third Amended

Complaint on April 20, 2015. On June 26, 2015, Dr. Gupta filed a Motion for

Partial Judgment on the Pleadings (“Motion for Partial Judgment”), arguing

that Appellant’s Third Amended Complaint added, inter alia, new causes of

action sounding in negligence after the statute of limitations expired.    On

August 13, 2015, the trial court granted the Motion for Partial Judgment and

struck multiple subparagraphs in Appellant’s Third Amended Complaint that

stated new theories of negligence.

      Both Appellant and Appellees filed numerous motions in limine (“MIL”).

Relevant to this appeal, the trial court granted the following motions: 1) MIL

to Preclude Plaintiff’s Experts from Testifying as to Acts of Negligence Which

Have Been Stricken from Third Amended Complaint; 2) MIL to Preclude

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Plaintiff from Projecting Lost Future Earnings without a Deduction for

Personal Maintenance Expenses; 3) MIL to Preclude Plaintiff’s Claim of

Purported “Spoliation” of Evidence; and 4) MIL to Preclude Plaintiff from

Presenting a Claim of Solatium Damages2 or for the Non-Pecuniary “Loss of

Consortium” of [Decedent].

       The jury trial commenced on January 19, 2016, and ended with a

verdict in favor of Appellees on January 28, 2016. Appellant filed a timely

Post-Trial Motion, which the trial court denied on September 2, 2016.

Appellant entered Judgment on January 12, 2017.

       Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Whether [Appellant]’s Third Amended Complaint added more
          allegations of [Appellee] Dr. Chiraag Gupta’s medical
          negligence as new causes of action after the running of the
          applicable statute of limitations, when such new allegations
          were only an amplification of existing causes of action[,]
          which had been timely pleaded?

       2. Whether [Appellant]’s medical experts’ testimony should have
          been limited to the “four corners” of the Third Amended
          Complaint (as limited by the August 13, 2015 Order) rather
          than the “four corners” of their respective expert reports,
          which addressed the precluded medical negligence issues that

____________________________________________


2“Solatium, or solace, describes a type of monetary damages awarded the
decedent's survivors to recompense them for their feelings of anguish,
bereavement, and grief caused by the fact of the decedent's death.” Sinn v.
Burd, 404 A.2d 672, 675 n.3 (Pa. 1979).



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         were only an amplification of existing causes of action which
         had been timely pleaded?

      3. Whether witness testimony using certain words or medical
         terms or symptoms not specifically pleaded in the Third
         Amended Complaint (as limited by the August 13, 2015
         Order) should have been prohibited at trial, thereby
         precluding [Appellant]’s lay witnesses from testifying as to
         the Decedent’s symptoms on 8/2/11 and precluding
         [Appellant]’s counsel from cross-examining [Appellee] Dr.
         Chiraag Gupta as to relevant medical terms or symptoms to
         which he testified on direct examination?

      4. Whether [Appellee] Northampton Hospital Company, LLC’s
         failure to preserve the hospital security video(s) from the
         night of August 2, 2011 warranted an adverse inference
         instruction and allowed testimony on direct examination of
         [Appellant]’s witnesses as to the presence of video cameras
         and the likely existence of surveillance video, especially
         pertaining to the apparent condition of the Decedent at the
         time of discharge from the hospital?

      5. Whether [Appellant] could present expert testimony
         projecting [Decedent]’s lost future earnings without a
         deduction for personal maintenance expenses in light of the
         MCARE Act’s omission of any such requirement in 40 P.S. §
         1303.510 expressly addressing the reduction of such
         damages to present value?

      6. Whether [Appellant] should have been allowed to present the
         testimony of [Decedent]’s parents regarding their emotional
         and psychological loss including companionship, society, and
         comfort as solatium damages, where the courts of the
         Commonwealth have held that such damages are includible
         as a loss of services recoverable in a suit for wrongful death
         under 42 [Pa.C.S.] § 8301?

Appellant’s Brief at 7-10.

      In her first issue, Appellant avers that the trial court abused its

discretion when it struck additional acts of negligence raised in her Third

Amended Complaint. Appellant’s Brief at 23. Appellant acknowledges that

her counsel filed the Third Amended Complaint after the two-year statute of

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limitations expired but argues that the additional acts of negligence did not

state new causes of action, but merely amplified the allegations in the

original Complaint that were timely pleaded. Id. at 23.

      The decision of whether to allow a party to amend a pleading is within

the sound discretion of the trial court, and we will not disturb that decision

on appeal absent a clear abuse of discretion.           Romah v. Hygienic

Sanitation Co., 705 A.2d 841, 857 (Pa. Super. 1997). Pa.R.C.P. No. 1033

provides that a party, by leave of court, may amend a pleading at any time.

Pa.R.C.P. No. 1033(a).    The right to amend a pleading is to be construed

liberally. Del Turco v. Peoples Home Sav. Ass'n, 478 A.2d 456, 464 (Pa.

Super. 1984). However, if amendment introduces a new cause of action, it

is not permitted after the running of the statute of limitations. Id.

      Our Supreme Court has defined “cause of action” in negligence as

“[t]he negligent act or acts which occasioned the injury.” Cox v. Wilkes-

Barre Ry. Corp., 6 A.2d 538, 538 (Pa. 1939). This Court has held “[a] new

cause of action does not exist if plaintiff’s amendment merely adds to or

amplifies the original complaint[.]”   Junk v. E. End Fire Dep’t, 396 A.2d

1269, 1277 (Pa. Super. 1978) (citations omitted). However, a new cause of

action does exist if the amendment “proposes a different theory or a

different kind of negligence than the one previously raised or if the operative

facts supporting the claim are changed.” Id.

      Instantly, we recognize that a party must commence Wrongful Death

and Survival actions within two years of the time the cause of action

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accrued.   See 42 Pa.C.S. § 5524(2); 42 Pa.C.S. § 5502(a); Moyer v.

Rubright, 651 A.2d 1139, 1141 (Pa. Super. 1994).          It is undisputed that

Appellant’s counsel filed the Third Amended Complaint on April 20, 2015,

almost four years after the claim arose and approximately twenty months

after the statute of limitations expired.    Accordingly, the only question is

whether the Third Amended Complaint introduced new negligent acts as

opposed to amplification of existing negligent acts.

      Appellant’s   original   Complaint   contained   multiple   allegations    of

negligence against Dr. Gupta, including, in relevant part, that he: 1) “failed

to follow conventional medical protocol, monitoring and testing for signs of

cardiac distress, specifically, by ordering [an] echocardiography[;]” 2) failed

to order a routine chest X-ray; and 3) failed to keep Decedent in the hospital

overnight monitored by bedside equipment hooked up to his pulmonary and

cardiovascular systems. See Complaint, 1/2/14, ¶¶47, 67.

      In the Third Amended Complaint, filed after the statute of limitations

had expired, Appellant asserted additional averments of negligence.             The

trial court permitted multiple amendments, but determined the following

averments to be stricken with prejudice for stating new theories of

negligence against Appellee and violating the statute of limitations:

      1) failing to take a complete and adequate history;

      2) failing to administer the proper diagnostic tests;

      3) failing to obtain a peak flow measurement;

      4) failing to perform a cardiac work-up;

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      5) failing to re-evaluate Decedent [] after he requested a wheelchair;

      6) failing to detect ventricular bigeminy on the monitor strips;

      7) failing to recognize arrhythmia;

      8) treating the Decedent [] with nebulizers despite the fact that he

         was symptomatic for congestive heart failure; and

      9) failing to conduct additional diagnostic tests.

See Third AmendedComplaint, 4/20/15 ¶¶43, 50.

      Appellant cites Connor v. Allegheny General Hosp., 461 A.2d 600,

(Pa. 1983), to support his argument that the averments stricken by the trial

court merely amplified existing allegations of negligence.     In Connor, the

appellant underwent a barium enema after presenting at the hospital with

abdominal distress.    During and after the procedure, the barium solution

leaked out of a perforation in the appellant’s colon into her abdominal cavity,

necessitating multiple additional surgeries.     Id. at 601.   The appellant’s

original complaint alleged that the hospital and treating physicians were

negligent, inter alia: 1) in perforating the sigmoid colon during the

performance of a barium enema procedure; 2) in perforating the sigmoid

colon and causing extravasation of the barium into the abdominal cavity

causing barium peritonitis; and 3) in otherwise failing to use due care

and caution under the circumstances.             Id. (emphasis added).     The

appellant amended her complaint, after the statute of limitations, by adding,

inter alia, the following allegation:




                                        -7-
J-A28039-17


      After it became apparent or should have become apparent . . .
      that barium with accompanying intestinal contents had
      extravasated into the abdominal cavity, the necessary
      laparotomy and cleansing of the abdominal cavity . . . was
      delayed improperly causing the barium and intestinal contents to
      remain within the abdominal cavity causing extensive peritonitis,
      formation of adhesions and a pericolic absess.

Id.

      This Court held that the statute of limitations barred the proposed

amendment because it sought to add new allegations of negligent acts by

proceeding on a different negligence theory. However, our Supreme Court

reversed and held that, in light of the original complaint’s broad and catch-

all allegation that the appellee was negligent, “in otherwise failing to use

due care and caution under the circumstances[,]” the appellant’s

proposed amendment did not change the cause of action but merely

amplified it. Id. at 602.

      Instantly, Appellant argues that the language “failed to follow

conventional medical protocol for the situation, by adequately monitoring

and testing for signs of cardiac distress[,]” as contained in the original

Complaint, is broad enough under Connor to allow Appellant to amend the

Complaint after the running of the statute of limitations.   However, as the

trial court astutely opines, this argument is unpersuasive because Appellant

fails to recognize that that the language “failed to follow conventional

medical protocol” is limited by the subsequent language “specifically, by

ordering [an] echocardiography.” See Order and Reasons, dated 8/13/15.




                                    -8-
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Accordingly, the language is not broad, but rather refers to a specific

medical test, and Appellant’s argument fails.

      We are constrained to agree with the trial court that the averments

stricken by the court are new allegations of negligence and not merely

amplification of existing allegations; the new allegations address Dr. Gupta’s

failure to engage in specific medical tests and diagnoses, which are separate

and distinct from the original allegations of Dr. Gupta’s negligence.

Accordingly, we find no abuse of discretion and Appellant’s first issue

warrants no relief.

      Appellant’s second issue is whether the trial court abused its discretion

when it limited the Appellant’s medical experts to the “four corners” of the

Third Amended Complaint as limited by the August 13, 2015 Order.

Appellant’s Brief at 24.   Appellant argues that the trial court precluded

expert witnesses Dr. Paynter and Dr. Charash from testifying within the “fair

scope” of their expert reports pursuant to Pa.R.C.P. No. 4003.5(c).

Appellant specifically avers that the trial court precluded Dr. Charash from

testifying that Dr. Gupta failed to recognize the existence of pulmonary

edema as a symptom of congestive heart failure. Id. at 40.

      This Court has held that when an allegation is unsupported by any

citation to the record, such that this Court is prevented from assessing this

issue and determining whether error exists, the allegation is waived for

purposes of appeal.   Commonwealth v. Harris, 979 A.2d 387, 393 (Pa.

Super. 2009).   Further, our Rules of Appellate Procedure make clear, “[i]f

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reference is made to the pleadings, evidence, charge, opinion or order, or

any other matter appearing in the record, the argument must set forth, in

immediate connection therewith, or in a footnote thereto, a reference to the

place in the record where the matter referred to appears.”                   Pa.R.A.P.

2119(c). See also Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super.

2005) (observing it is not the duty of this Court to “scour the record” and

“act as the appellant’s counsel” and declining to do so).

      In arguing Appellant’s second issue, Appellant’s counsel fails to provide

citation to the record as required by Pa.R.A.P. 2119(c). Accordingly, we are

unable to determine whether error exists. This issue is, thus, waived.

      In her third issue, Appellant avers that the trial court abused its

discretion when it ordered counsel to draw up a list of medical terminology

and symptoms that could not be referenced in front of the jury due to the

court’s 8/13/15 Order striking portions of the Third Amended Complaint.

Appellant’s Brief at 41.        Additionally, Appellant argues that the list of

prohibited    terms    improperly   precluded     lay    witnesses   from    testifying

regarding their personal knowledge of Decedent’s symptoms, and unfairly

limited the cross-examination of Dr. Gupta. Id. at 40-41.

      During trial, after Appellee had moved several times for a mistrial in

response     to   Appellant’s   expert   witnesses      repeatedly   testifying   about

precluded negligence theories over Appellee’s objections, the trial court

“asked all counsel to prepare a bullet-point list of those areas precluded

from the trial by the Pretrial Order” in order to “avoid confusion between

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[Appellant]’s original and Third Amended Complaint and in an attempt to

avoid further motions for a mistrial.” Trial Court Opinion, 2/16/16, at 19-20.

In response to this request, Appellant’s counsel replied, “Okay, thanks your

honor[,]” and failed to object to the creation of the list of prohibited words.

N.T. Trial, 1/19/16, at 358.

      Appellant now argues that the trial court abused its discretion when it

ordered counsel to provide a list of prohibited medical terminology and

symptoms.     If a party fails to raise a contemporaneous objection with the

trial court, the claim is waived on appeal. Commonwealth v. Powell, 956

A.2d 406, 423 (Pa. 2008). See also Pa.R.A.P. 302 (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).

Because Appellant’s counsel failed to object to the creation of the list of

prohibited words, counsel failed to preserve this issue for appellate review.

      Appellant also argues that the trial court improperly precluded lay

witnesses from testifying regarding Decedent’s symptoms.          Once again,

Appellant’s counsel fails to provide citation to the record as required by

Pa.R.A.P. 2119(c). We decline to act as Appellant’s counsel and scour the

record.    See Hayward, supra at 558.         Accordingly, we are unable to

determine whether error exists and find this issue to be waived.           See

Harris, supra at 393.

      Appellant next argues that the trial court unfairly limited the cross-

examination of Dr. Gupta.      Appellant asserts that Dr. Gupta testified on

direct examination that Decedent’s heart had a regular rhythm, which

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“opened the door” for Appellant’s counsel to cross-examine Dr. Gupta as to

whether his treatment of Decedent for asthma with a nebulizer of albuterol

could have caused or contributed to an arrhythmia, or abnormal heart rate.

Appellant’s Brief at 44. We disagree.

       It is well settled that “[t]he scope of cross-examination is a matter

within the discretion of the trial court and will not be reversed absent an

abuse of that discretion.” Commonwealth v. Hitcho, 123 A.3d 731, 769

(Pa. 2015) (citation and quotation omitted). The Rules of Evidence provide:

“[a] party witness in a civil case may be cross-examined by an adverse party

on any matter relevant to any issue in the case, including credibility, unless

the court, in the interests of justice, limits the cross-examination with

respect to matters not testified to on direct examination.” Pa.R.E. 611(b).

       As stated above, the trial court struck the failure “to recognize

arrhythmia” and “to detect ventricular bigeminy on the monitor strips” 3 from

Plaintiff’s Third Amended Complaint. The trial court opined that Dr. Gupta’s

testimony about his observations during a physical examination using a

stethoscope did not “open the door” to cross-examine him regarding

arrhythmia.      The court noted that such cross-examination would entail

dialogue regarding electrocardiogram (“EKG”) results as they appeared on



____________________________________________


3Ventricular bigeminy is a particular type of heart arrhythmia. Trial Court
Opinion, 2/9/16, at 12.



                                          - 12 -
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the EKG monitor strips – a strickened subject.     See Trial Court Opinion,

2/9/16, at 13. We agree and, thus, find no abuse of discretion.

      In her fourth issue, Appellant avers that the trial court erred in

denying the MIL in which Appellant’s counsel requested an adverse inference

instruction due to Northampton’s failure to preserve the hospital security

videos from the night in question.    See Appellant’s Brief at 25. Appellant

argues that because there was conflicting testimony about whether

Decedent was in need of a wheelchair or assistance upon discharge from the

hospital, the destroyed surveillance video of the hospital parking lot would

have corroborated the testimony of Appellant’s witnesses. Id. at 49.

      We review a trial court's decision to grant or deny a MIL for an abuse

of discretion.   Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super.

2014).

      Our Supreme Court has recognized that a common penalty for

spoliation of evidence is a jury instruction allowing an inference that the

missing evidence would have been unfavorable to the party that destroyed

it. Schroeder v. Com., Dep't of Transp., 710 A.2d 23, 27 (Pa. 1998). To

determine whether a party’s actions warrant such a jury instruction, a trial

court must consider:   “(1) the degree of fault of the party who altered or

destroyed the evidence; (2) the degree of prejudice suffered by the

opposing party[;] and (3) the availability of a lesser sanction that will

protect the opposing party's rights and deter future similar conduct.”   Id.

(citation omitted).

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      To determine “the degree of fault,” a trial court must consider two

components: 1) the extent of the offending party's duty or responsibility to

preserve the relevant evidence; and 2) the presence or absence of bad faith.

Parr, supra at 702.     A party has a duty to preserve evidence where the

party knows that litigation is pending or likely and it is foreseeable that

discarding that evidence would be prejudicial to the opposing party. Id.

      In concluding that Northampton did not have a duty to preserve the

video and did not act in bad faith, the trial court: (1) opined that even if

Northampton knew that litigation was likely, “it was not foreseeable that

destroying surveillance tapes from a security camera that captures footage

of Easton Hospital’s parking lot ‘would be prejudicial to the [Appellant’]”

especially because “the surveillance footage was apparently intended for

security and not medical purposes[;]” and (2) found that the hospital taped

over the video surveillance tapes during the regular course of business,

rather than in bad faith. Trial Court Opinion, 9/2/16, at 24-25. Our review

of the certified record indicates that it supports the trial court’s conclusions.

Accordingly, we conclude the trial court did not abuse its discretion in

denying Appellant’s MIL for an adverse jury instruction.

      Appellant’s fifth issue asserts that the trial court erred in granting Dr.

Gupta’s MIL pertaining to the projection of lost future earnings.      Appellant

argues that the trial court should have permitted Appellant’s expert to testify

as to Decedent’s lost future earnings without including a deduction for

personal maintenance expenses. Appellant’s Brief at 26. Appellant correctly

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notes that the Medical Care Availability and Reduction of Error Act (“MCARE

Act”), pursuant to 40 P.S. § 1303.510, requires damages for lost future

earnings to be reduced to present value. Appellant argues, however, that

because the statute does not specifically address a deduction for personal

maintenance expenses, no such deduction is required when calculating lost

future earnings. Id. at 50-51. Appellant’s claim lacks merit.

      Pennsylvania case law has long established that the damages

recoverable in a survival action include “the decedent's pain and suffering,

the loss of gross earning power from the date of injury until death, and the

loss of his earning power—less personal maintenance expenses, from the

time of death through his estimated working life span.” Kiser v. Schulte,

648 A.2d 1, 4 (Pa. 1994).        Our Supreme Court has defined “personal

maintenance” as what a person “would have spent for those things which

are essential to the individual's personal and physical subsistence.”

McClinton v. White, 444 A.2d 85, 87 (Pa. 1982).

      In March 2002, the legislature enacted the MCARE Act to ensure, inter

alia, that “a person who has sustained injury or death as a result of medical

negligence by a health care provider [is] afforded a prompt determination

and fair compensation.” 40 P.S. § 1303.102(4).        Section 1303.510 of the

MCARE Act provides that future damages for loss of earnings in a medical

professional liability action shall be reduced to present value, as follows:

      Future damages for loss of earnings or earning capacity in a
      medical professional liability action shall be reduced to present
      value based upon the return that the claimant can earn on a

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     reasonably secure fixed income investment. These damages
     shall be presented with competent evidence of the effect of
     productivity and inflation over time. The trier of fact shall
     determine the applicable discount rate based upon competent
     evidence.

40 P.S. § 1303.510.

     As Appellant states, this section is silent on whether personal

maintenance expenses should be deducted.          However, this Court has

continued to uphold the deduction of personal maintenance expenses in the

calculation of future lost earnings. See Davis v. Steigerwalt, 822 A.2d 22,

28 (Pa. Super. 2003) (holding “the measure of damages awarded in a

survival action includes the decedent's pain and suffering, the loss of gross

earning power from the date of injury until death, and the loss of her

earning power—less personal maintenance expenses, from the time of death

through her estimated life span”); Carroll v. Avallone, 869 A.2d 522, 528–

29 (Pa. Super. 2005) (including personal maintenance deduction in

calculation of damages in survival action), reversed on other grounds,

939 A.2d 872 (Pa. 2007).

     Because the MCARE Act does not prohibit a personal maintenance

deduction in the calculation of future damages for loss of earnings, and case

law decided subsequent to the Act’s passage has continued to include the

deduction, Appellant’s claim that the trial court should have permitted his

expert to testify without mention of the deduction of personal expenses is




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meritless.   Accordingly, we find no abuse of discretion in the trial court’s

granting Dr. Gupta’s MIL pertaining to the projection of lost future earnings.

      In Appellant’s sixth and final issue, Appellant avers that the trial court

erred in granting Appellee’s MIL to Preclude Plaintiff from Presenting a Claim

of Solatium Damages or for the Non-Pecuniary “Loss of Consortium” of

Decedent Ogioba.     Appellant’s Brief at 53.    Appellant argues Decedent’s

parents should have been allowed to testify as to their emotional and

psychological loss as part of the value of lost “services” recoverable in a

Wrongful Death Action. Id. at 53.

      Again, Appellant’s counsel fails to provide citation to the record

pursuant to Pa.R.A.P. 2119(c), and we decline to act as Appellant’s counsel

and scour the record.     See Hayward, supra at 558. Accordingly, we are

unable to determine whether error exists and find this issue to be waived.

See Harris, supra at 393.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/18




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