J-A02045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER BLACK, AS EXECUTRIX OF THE               IN THE SUPERIOR COURT OF
ESTATE OF ANA T.                                        PENNSYLVANIA
RAVELO-ORTIZ, DEC.

                           Appellant

                      v.

DREW P. RONNERMANN, M.D. AND
POTTSTOWN MEMORIAL
MEDICAL CENTER
                                                      No. 3006 EDA 2015


              Appeal from the Judgment Entered November 6, 2015
       in the Court of Common Pleas of Montgomery County Civil Division
                            at No(s): No. 09-30454

BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 30, 2017

        Appellant, Jennifer Black, Executrix of the Estate of Ana T. Ravelo-

Ortiz, appeals from the judgment entered in the Montgomery County Court

of Common Pleas.1 Appellant contends the trial court erred in denying her

objections to the trial court’s evidentiary rulings. We affirm.


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant filed her notice of appeal on September 14, 2015, from the order
denying her motion for post-trial relief. Judgment was entered on November
6, 2015. “[A]n appeal to this Court can only lie from judgments entered
subsequent to the trial court’s disposition of any post-verdict motions, not
from the order denying post-trial motions.” Johnston the Florist, Inc. v.
TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc)
(citation omitted). Although Appellant filed her notice of appeal prior to
entry of judgment, it is well-settled that “even though the appeal was filed
prior to the entry of judgment, it is clear that jurisdiction in appellate courts
J-A02045-17


      The trial court summarized the facts and procedural posture of the

instant case as follows:

            In the present matter [Appellant] filed suit against
         [Appellees], Drew P. Ronnerman, MD. and against
         Pottstown Memorial Medical Center (hereinafter “PMMC”),
         for failing to timely diagnose and treat the deceased, Anna
         T. Revelo-Ortiz, colon condition.      [Appellant] made a
         professional negligence claim against Dr. Ronnerman, and
         both a direct corporate negligence claim and a vicarious
         negligence liability claim against PMMC.

            On April 15, 2015, after a lengthy trial on the matter,
         the jury returned a verdict in favor of [Appellees], Dr.
         Ronnerman and PMMC and against [Appellant].1

            On September 2, 2015, the trial court denied
         [Appellant’s] Motion for Post-Trial Relief and a New Trial.
            1
              Please note, prior to deliberations, the trial court
            dismissed the direct corporate negligence claim
            against PMMC, leaving only the vicarious claim
            against PMMC stemming from Dr. Bhardwaj’s actions
            for the jury to consider.

Trial Ct. Op., 2/22/16, at 1-2. This appeal followed. Appellant filed a court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and

the trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         1. Whether the trial court abused its discretion by
         precluding the Estate’s corporate negligence expert, Dr.
         Thomas Bojko, from testifying about [PMMC’s] corporate
         negligence (failure to properly credential and supervise)
         and dismissing the corporate negligence claim because the
         trial court imposed a novel evidentiary requirement that

may be perfected after an appeal notice has been filed upon the docketing of
a final judgment.” Id. at 513 (citations omitted).



                                      -2-
J-A02045-17


         the Estate cannot use the same causation expert to
         provide the causative link between the claims of corporate
         negligence and the underlying negligence of the radiologist
         that combined to cause [Decedent’s] death?

         2. Whether the trial court abused its discretion by
         precluding the Estate from introducing evidence of Dr.
         Bhardwaj’s repeated failures to attain Board Certification
         to support the Estate’s claim that PMMC was corporately
         negligent for failing to properly credential and supervise
         Dr. Bhardwaj pursuant to Scampone v. Highland Park
         Care Ctr., LLC, 57 A.3d 582 (Pa. 2012) and Thompson v.
         Nason Hospital, 591 A.2d 703 (Pa. 1991)?

         3. Whether the trial court abused its discretion by
         precluding the Estate from introducing into evidence or
         referencing during expert testimony PMMC’s admission
         contained in the deposition testimony of PMMC’s Chief of
         Radiology, managing agent and corporate designee that
         the PMMC radiologist that misinterpreted [Decedent’s] CT
         scan (Dr. Anil Bhardwaj) deviated from the standard of
         care in failing to identify and report a critical finding that
         led to [Decedent’s] suffering and death?

         4. Whether the trial court abused its discretion by
         permitting defense expert pathologist, Dr. Wayne Ross, to
         express previously undisclosed opinions in the form of new
         images together with unspecified enlargements of
         pathology studies that were not produced to the Estate
         until the eve of trial and the day after the Estate’s forensic
         pathologist concluded his videotaped trial testimony?

Appellant’s Brief at 3-4.2

      First, Appellant contends “the trial court improperly barred the expert

testimony of [Appellant’s] corporate negligence liability expert forcing

dismissal of that claim.”    Id. at 14.   Appellant argues that the trial court


2
  We have stated Appellant’s issues in the order in which they are addressed
in the argument section of the brief.



                                     -3-
J-A02045-17


erred in finding that Dr. Seth Glick only provided causation for the vicarious

liability claim against PMMC. Id. at 17. Appellant argues

         the trial court imposed a new evidentiary standard holding
         that Dr. Glick could not provide the causation link for both
         PMMC’s vicarious negligence arising out of the radiologist’s
         misinterpretation and PMMC’s corporate negligence for
         allowing a poorly credentialed and unsupervised radiologist
         to perform this critical interpretation in the first place.

Id. at 16.

      Appellant avers “Dr. Glick’s opinion was quite simple [sic] that the

hospital’s radiologist [Dr. Bhardwaj] deviated from the standard of care in

missing a critical finding which ultimately led to [Decedent’s] death. Nothing

in Dr. Glick’s causation opinion limits its application to the vicarious liability

claim.” Id. at 17-18. Appellant contends that this Court’s holding in Rauch

v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001) compels a finding of trial

court error. Appellant’s Brief at 17.

      Our review is governed by the following principles:

            When we review a ruling on the admission or exclusion
         of evidence, including the testimony of an expert witness,
         our standard is well-established and very narrow. These
         matters are within the sound discretion of the trial court,
         and we may reverse only upon a showing of abuse of
         discretion or error of law. An abuse of discretion may not
         be found merely because an appellate court might have
         reached a different conclusion, but requires a result of
         manifest unreasonableness, or partiality, prejudice, bias,
         or ill-will, or such lack of support so as to be clearly
         erroneous. In addition, [t]o constitute reversible error, an
         evidentiary ruling must not only be erroneous, but also
         harmful or prejudicial to the complaining party.




                                        -4-
J-A02045-17


Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super. 2006) (citations

and quotation marks omitted).

      The law of corporate negligence, under which a hospital can be held

directly liable for negligence, is well-settled:

              Pennsylvania recognizes the doctrine of corporate
         negligence as a basis for hospital liability separate from
         the liability of the practitioners who actually have
         rendered medical care to a patient. Whittington v.
         Episcopal Hospital, 768 A.2d 1144, 1149 (Pa. Super.
         2001). The doctrine creates a non-delegable duty on a
         hospital to uphold a proper standard of care to patients.
         Our law will impose liability if the hospital fails to ensure a
         patient’s safety and well being at the hospital. A hospital
         is directly liable under the doctrine of corporate negligence
         if it fails to uphold any one of the following four duties:

            1. a duty to use reasonable care in the maintenance
            of safe and adequate facilities and equipment;

            2. a duty to select and retain only competent
            physicians;

            3. a duty to oversee all persons who practice
            medicine within its walls as to patient care; and

            4. a duty to formulate, adopt and enforce adequate
            rules and policies to ensure quality care for the
            patients.

         Id. (quoting Thompson [591 A.2d at 707-08; see also
         Scampone, 57 A.3d at 601, citing the four pronged test
         enunciated in Thompson].        Furthermore to present a
         prima facie case of corporate negligence, a plaintiff must
         demonstrate all of the following elements:

            1. [the hospital] acted in deviation from the standard
            of care;




                                       -5-
J-A02045-17


            2. [the hospital] had actual or constructive notice of
            the defects or procedures which created the harm;
            and

            3. that the conduct was a substantial factor in
            bringing about the harm.

          [Whittington, 768 A.2d at 1149]. Unless a hospital’s
          negligence is obvious, an expert witness is required to
          establish two of the three prongs: that the hospital
          deviated from the standard of care and that the
          deviation was a substantial factor in bringing about
          the harm. [Id. at 1149-50].

Rauch, 783 A.2d at 826-27 (some emphases added); accord Welsh v.

Bulger, 698 A.2d 581, 585 (Pa. 1997).

      “A cause of action for corporate negligence arises from the policies,

actions or inaction of the institution itself rather than the specific acts of

individual hospital employees.   Thus, under this theory, a corporation is

held directly liable, as opposed to vicariously liable, for its own

negligent acts.” Welsh, 698 A.2d at 585 (citation omitted and emphasis

added).

      In the case sub judice, the trial court opined:

             In the initial claim of error, [Appellant] contends that
          the trial court erred by precluding the testimony of
          [Appellant’s] sole corporate negligence expert, Dr. Thomas
          Bojko, and dismissing [Appellant’s] claim for corporate
          negligence. . . .

              In the case at bar, [Appellant] asserted two (2)
          separate claims against [ ] PMMC. A claim of vicarious
          liability premised upon the alleged negligent acts of
          PMMC’s agent/employee Dr. Anil Bhardwaj (radiologist)
          and a claim for direct corporate negligence. [Appellant]



                                     -6-
J-A02045-17


           focuses on the direct corporate negligence claim in this
           allegation of error.

                                   *    *    *

           Significantly, unless the hospital’s negligence is obvious, a
           plaintiff must establish, thorough expert testimony, that
           the hospital’s acts deviated from an accepted standard of
           care and that the deviation was a [factual cause] in
           bringing about plaintiff’s harm. In the case sub judice,
           [Appellant] failed to provide an expert to establish that
           PMMC’s alleged deviation from the accepted standard of
           care caused [Decedent’s] harm. In short, [Appellant] was
           unable to present the required expert testimony to support
           the causation element of her direct corporate negligence
           claim against the hospital.

              To further explain, [Appellant] retained only one expert
           witness to support her corporate negligence claim against
           PMMC─Dr. Bojko. However, Dr. Bojko’s report discussed
           only breach of the standard of care by PMMC, it failed to
           address and/or assert that the breach caused [Decedent]
           to suffer harm or that the breach increased the risk that
           [Decedent] would suffer harm.        Causation was simply
           absent from the report. At trial, [Appellant] argued that
           the lack of causation in Bojko’s report was not fatal
           because she could “couple” or combine Bojko’s report with
           that of her other expert witness, Dr. Glick. In his report,
           Dr. Glick addressed the alleged breach of the standard of
           care and causation with regard to PMMC’s agent/employee
           Dr. Bhardwaj as it related to the vicarious liability claim.

              Indeed, [Appellant] argued that, “[b]y coupling the
           opinions of Drs. Bojko and Glick, all of the prima facie
           elements of corporate negligence had been met such that
           the jury should have been permitted to decide the claim.”
           ([Appellant’s] Motion for Post-Trial Relief and a New Trial
           [R.R. at 4814a]). [Appellant] relied on Rauch [ ] for the
           premise/holding that the coupling of expert reports is
           appropriate to make out a prima facie case of medical
           malpractice against a defendant. [R.R. at 4814a.3]

3
    For the convenience of the parties, we cite to the reproduced record.



                                       -7-
J-A02045-17



                                    *    *    *

               While the court agrees that Rauch [ ] permits the
           coupling of expert reports to establish a cause of action,
           the holding is inapplicable herein. In Rauch, the court
           allowed the coupling of expert reports to support a claim
           against individual physicians. Rauch did not deal with the
           coupling of experts against a hospital on a direct corporate
           negligence claim. Indeed, the corporate negligence expert
           in Rauch provided both standard of care and
           causation opinions as to the corporate negligence claim.
           [Rauch, 783 A.2d] at 828-29. In our case, [Appellant’s]
           corporate negligence expert, Dr. Bojko, opined on standard
           of care for direct corporate negligence against PMMC, but
           was silent on causation for the direct corporate negligence
           claim. [Appellant] hoped to couple her expert report from
           Dr. Glick to establish causation. However, Dr. Glick only
           provided causation for the vicarious liability claim against
           PMMC, Dr. Glick did not provide causation regarding
           the      direct     corporate      negligence       claim.[4]


4
    Dr. Seth N. Glick, diagnostic radiologist, opined:

           . . . I have been able to formulate an opinion regarding the
           care rendered to [Decedent] in the context of the
           performance, interpretation, and communication of her
           imaging studies at [PMMC].

                                    *    *    *

           In summary, it is my opinion, with a reasonable degree of
           medical certainty, that Dr. Bhardwaj’s failure to note the
           abrupt transition zone and pneumatosis, individually and
           cumulatively, were deviations from the standard of care.
           These resulted in a delay in the appropriate management
           leading to the subsequent perforation. If Dr. Bhardwaj
           had made the correct assessment of probable colon
           obstruction and cecal pneumatosis which would indicate a
           weekending cecum with increased risk of perforation, more
           aggressive diagnostic and/or therapeutic management
           would have taken place consisting of any combination of



                                        -8-
J-A02045-17


         Consequently, any coupling of [Appellant’s] expert reports
         did not cure the deficiency.

Trial Ct. Op. at 2-5. We agree no relief is due.

      Dr. Bojko opined:

         I. [PMMC], its governing body, chief executive officer and
         senior leadership deviated from the standard of care by
         not having and implementing an appropriate and effective
         quality control program which would ensure safe and
         effective care to patients.

         II. [PMMC], its governing body, chief executive officer and
         senior leadership deviated from the standard of care by
         failing to have or implement a reliable and consistent
         process to determine competency and verify credentials
         and failing to have a system to properly monitor
         competency during the credentialing and re-credentialing
         process.

         III. [PMMC], its governing body, chief executive officer and
         senior leadership deviated from the standard of care by
         failing to have or implement a reliable and consistent
         process to determine whether a physician’s character and
         behavior towards staff and patients was appropriate and
         whether they should be granted re-credentialing.

         IV. [PMMC], its governing body, chief executive officer and
         senior leadership are responsible to ensure services
         provided by contractual agreement are provided safely and
         effectively, and would deviate from the standard of care
         should it be determined that Dr. Bhardwaj[‘s] failure to
         diagnose and report pneumatosis was a contributory factor
         in [Decedent’s] harm.



         contrast enema, endoscopy, and surgery. This would have
         prevented the eventual perforation, sepsis, and death.

R.R. at 983a-984a.




                                     -9-
J-A02045-17


R.R. at 996a.

      Appellant’s expert, Dr. Bojko, opined that PMMC deviated from the

standard of care but did not establish that the deviation was a substantial

factor in bringing about Decedent’s harm.      See Rauch, 783 A.2d at 827.

Appellant failed to establish a cause of action for corporate negligence. See

id.; Welsh, 698 A.2d at 585. We discern no abuse of discretion by the trial

court. See Freed, 910 A.2d at 72.

      Second, Appellant contends the trial court erred in precluding evidence

that Dr. Bhardwaj had failed his board certification examinations multiple

times when he provided treatment to Decedent.          Appellant’s Brief at 19.

Appellant avers that

         evidence of Dr. Bhardwaj’s failure to obtain board
         certification is directly relevant to [Appellant’s] claims that
         PMMC failed to staff its hospital with properly
         credentialed/competent physicians who received proper
         oversight and supervision. The trial court’s preclusion of
         this evidence prevented [Appellant] from providing
         evidence that PMMC was on notice of the need to more
         closely monitor Dr. Bhardwaj and assess whether he was
         competent to independently interpret [Decedent’s CT
         scan].

Id. at 23.5 Appellant concedes that “Pennsylvania courts hold that evidence

of board certification is NOT evidence of a specific negligence[.]” Id.



5
  We note that Appellant deposed Dr. Brian Solomon. He testified as follows
in his deposition regarding Dr. Bhardwaj’s failure to obtain board
certification:




                                     - 10 -
J-A02045-17


      In Hawkey v. Peirsel, 869 A.2d 983 (Pa. Super. 2005), this Court

addressed the issue of whether the physician’s lack of board certification was

relevant and admissible regarding the issue of the standard of care.

             Regarding Dr. Peirsel’s lack of board certification in
         emergency medicine, the trial court noted that it appeared
         to have no probative value and therefore was irrelevant.
         It explained that the court was “never fully told what board
         certification really means in terms of medical actions, nor
         [was it] told of the process of board certification.” Given
         that “[b]oard certification is not a legal requirement to
         practice medicine or be licensed in Pennsylvania,” the
         court continued, the Hawkeys’ failure to connect board
         certification and medical negligence was dispositive. . . .
         Because the case concerned whether a standard of care
         was met rather than the qualifications of a physician “by
         some measure established by a medical organization,” the
         court concluded, the evidence in question was irrelevant
         and inadmissible.

            The Hawkeys counter that they “sought to introduce
         such evidence to establish the credentials and
         qualifications of Dr. Peirsel as an emergency physician,”

         Q: Well, did you have any concern about─well, in your
         mind, was there any connection between an inability to
         pass the board exam and patient safety?

         A: In this case, no.

                                 *     *      *

         Q: Why do you say that?

         A: The radiology boards, the written part is half physics,
         and my experience has been that half has very little to do
         with patient safety at all. And a lot of people have trouble
         passing the physics part and I─I don’t believe that has
         much to do with patient safety.

R.R. at 1302a.



                                     - 11 -
J-A02045-17


         because “[w]hether . . . a physician is board certified is,
         indeed, probative of his credentials and qualifications to
         practice emergency medicine.”        Indeed, the Hawkeys
         contend, “[t]he credentials and qualifications of a physician
         are always at issue in a medical malpractice action.” Their
         entire argument revolves around these twin premises, for
         which they cite no binding authority. The trial court did
         not find these propositions self-evident and neither do we.
         Given our deferent standard of review, and the
         Hawkeys’ failure to provide us with any relevant
         statement of law establishing board certification as
         probative of a physician’s satisfaction of the
         appropriate standard of care in a given case, we find
         no cause to disturb the trial court’s ruling on this
         matter. Accordingly, we conclude that their argument
         lacks merit.

Id. at 989 (citations omitted and emphasis added).

      In the case sub judice, the trial court opined: “[I]t is well settled that,

a physician is not required to be board certified in his discipline when he/she

treats a patient, thereby making any evidence in this regard non-probative

and irrelevant with regard to whether a physician was negligent in a

particular case.”   Trial Ct. Op. at 7.       We agree no relief is due.    See

Hawkey, 869 A.2d at 989. Thus, we find no abuse of discretion by the trial

court in its evidentiary ruling. See Freed, 910 A.2d at 72.

      Third, Appellant argues “the trial court erred in precluding the

testimony of [PMMC’s] chief of radiology, managing agent, and corporate

designee, Dr. Brian Solomon, that PMMC, through Dr. Bhardwaj, deviated

from the standard of care.”    Appellant’s Brief at 24.    Appellant avers that

“[t]he trial court abused its discretion by prohibiting the Estate from using




                                     - 12 -
J-A02045-17


Dr. Solomon’s admission that Dr. Bhardwaj deviated from the standard of

care, thereby necessitating a new trial.” Id.

      As a prefatory matter, we consider whether Appellant has waived this

issue on appeal. It is well-established that “in order for a claim of error to

be preserved for appellate review, a party must make a timely and specific

objection before the trial court at the appropriate stage of proceedings; the

failure to do so will result in a waiver of the issue.” Kaufman v. Campos,

827 A.2d 1209, 1212 (Pa. Super. 2003) (citation omitted).

      In the case sub judice, the trial court opined:

         First, this allegation of error has been waived for appellate
         review.     [Appellant] waived this argument for appellate
         purpose [sic] when her counsel . . . conceded on the
         record, that Dr. Solomon’s standard of care testimony
         would be inappropriate.

Trial Ct. Op. at 6. We agree the issue is waived.

      Prior to the commencement of the trial in the instant case, counsel for

PMMC made the following motion:

         [Counsel for PMMC]: So the motion is this: That all
         parties be precluded from introducing the deposition
         testimony of Dr. Solomon that constitutes opinion
         testimony, especially in the nature of expert testimony.
         Dr. Solomon is not a named defendant, although he
         admittedly is an agent of the hospital for the purposes of
         this case, but it doesn’t really matter whether he’s a party
         or not. I believe the case law which we’ve cited in our
         motion makes it abundantly clear that a physician cannot
         be compelled to give testimony in the nature of an opinion
         or expert testimony when he chooses not to do so.

         I will represent to the [c]ourt that Dr. Solomon has
         advised me through counsel that he does not wish to offer


                                     - 13 -
J-A02045-17


        expert testimony in this case. He hasn’t been retained by
        [Appellant].

                                  *       *       *

        The substance of our motion is that he is being turned into
        a forced, unpaid expert witness who does not choose to be
        in that role.

                              *       *       *

        [T]he testimony that I’m objecting to is, number one, that
        when he looked at the CT scan of October 16th, 2007 . . .
        in his deposition testimony said that he saw a
        pneumatosis. . . .

        And then he was asked later in the deposition, . . . “And
        was the failure of the reading radiologist to report it as a
        pneumatosis a deviation from the standard of care?” And
        his answer was, “I believe so.”[6] Both of those, Your

6
  Dr. Solomon gave two depositions in the instant case. The first deposition
occurred on September 30, 2010. R.R. at 1172a. He testified that he was
the medical director of radiology. Id. at 1179a-1180a. He testified, inter
alia, as follows:

        [Counsel for Appellant]: Doctor, have you been asked at
        any point to serve as an expert in this matter involving
        [Appellee,] Dr. [Drew P.] Ronnerman?

        A: No.

        Q: As we sit here today, do you have any intentions to act
        as an expert and give your opinions regarding this matter?

        A: No.

                                  *       *       *

        Q; My question, Doctor, to you, simply put, and I
        understand there is a continuing objection to this question:
        When you came to your conclusion, what was it as to
        whether Dr. Bhardwaj complied with the standard of care?



                                      - 14 -
J-A02045-17


        Honor, clearly are opinion expert testimony and should not
        come in . . . .

                                 *      *     *

        [Counsel for Appellant]: Let me tell you where I agree with
        them.

                                *       *     *

        Where I agree with them is that I asked Dr. Solomon, Did
        Dr. Bhardwaj deviate from the standard of care? And he
        said, Yes. I believe that that is an inappropriate
        opinion for me to elicit in front of the jury.

           That being said, Your Honor, if I have experts who will
        come in and say that is the type of information that they
        regularly rely upon in rendering their opinions in their
        practice, the opinions of their colleagues, . . . but they can
        certainly testify that that’s information that they regularly
        and reasonably rely upon, which is the standard for giving
        the basis for an expert opinion.

           That being said, I think the hospital would be hard-
        pressed to say that the opinion of a fellow radiologist that
        somebody missed something is something that doesn’t
        happen in radiology because there will be a great deal of
        testimony in this case and documents from the hospital
        that they have their own internal discrepancy finding
        program allegedly where they’re supposed to look at each
        other’s films and look at each other’s analysis, look at the



        A: I believe that he did not.

        Q: And why?

        A: Because I─pneumatosis is an important finding.           It
        should─it should have been in the report.

Id. at 1180a, 1218a.




                                     - 15 -
J-A02045-17


         film and then look at the report, and determine whether
         they missed something. And if they did, they fill out a
         discrepancy report.

            So I find it impossible that the hospital could stand
         before you and suggest that this notion of one radiologist,
         our expert radiologist, Dr. Glick, relying in part─he has his
         own opinion of Dr. Solomon with respect to the deviation.

R.R. at 3486a-3490a (emphases added). The trial court ruled:

         [N]othing can be raised about [Dr. Solomon’s]
         determination that it was a deviation of the standard of
         care. Your [i.e., Appellant’s] experts can rely upon his
         finding of seeing pneumatosis to make their determination
         that there was a violation of the standard of care, but they
         cannot refer to his determination that it was a standard of
         care violation.

Id. at 3516a.

      Not only did Appellant’s counsel fail to make a timely and specific

objection before the trial court, counsel conceded that Dr. Solomon’s opinion

of Dr. Bhardwaj’s standard of care was “an inappropriate opinion for [him] to

elicit in front of the jury.”   Id. at 3489a.   Accordingly, we find the issue

waived. See Kaufman, 827 A.2d at 1212.

      Lastly, Appellant contends the trial court abused its discretion by

permitting defense expert pathologist, Dr. Wayne Ross, “to express new

opinions through images that were undisclosed until the eve of trial and after

[Appellant’s] expert had provided videotaped trial testimony.”     Appellant’s

Brief at 32.

      It is well-established that




                                     - 16 -
J-A02045-17


        [d]emonstrative evidence is “tendered for the purpose of
        rendering other evidence more comprehensible for the
        trier of fact.” 2 McCormick on Evidence § 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.

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

citations and quotation marks omitted).

     Instantly, the trial court opined:

        [Appellant] specifically contests the admission of
        demonstrative evidence. Notably, at the trial, [Appellant]
        did not contest the relevancy of the pathology slides
        themselves, rather she contests the enlargements of and
        manipulation/altering of the pathology slides into a Power
        Point presentation, and the alleged lack of notice that such
        a Power Point presentation would be used.

           Turning first to the timing of the production of the
        evidence, all the parties’ expert witnesses had access to,
        and reviewed, the pathology slides. Indeed, [Appellant’s]
        pathology expert, Dr. Donald Jason, was provided
        [Decedent’s] pathology slides[7] before he rendered his
        expert report and testified in the matter.

7
  Dr. Jason, in his videotaped deposition, testified that in rendering his
expert opinion he “[l]ooked at all the material that was available to [him],
including the autopsy report, medical records, microscopic slides, various
reports from other doctors, looked at autopsy photographs, and some
depositions and exhibits.” R.R. at 3386a. Counsel for PMMC questioned Dr.
Jason as follows:

        Q: Well, Dr. Jason, you don’t mention anything about the
        microscopic slides in your opinions─in your pathological
        opinions in this case, do you?

        A: Well, not per se, but they certainly were part of the
        material I reviewed and do come into my─my coming to
        the conclusions I came into because I was able to look at
        them.



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J-A02045-17


                                 *     *      *

            Thus, it is evident that [Appellant’s] expert witness, Dr.
        Jason reviewed the pathology slides at issue, and then
        utilized them as he saw fit when rendering his expert
        opinion.     Therefore, there was no unfair surprise to
        [Appellant] at the trial with reference to the slides
        themselves. Rather, [Appellant] appears to contest Dr.
        Ross’ enlargement and staining of the slides at issue for
        demonstrative use during his trial testimony. However,
        this argument likewise fails because [Appellee] PMMC
        specifically listed Dr. Ross’s Power Point as an exhibit in its
        Supplemental Pre-Trial Statement, filed on March 4, 2014,




        Q: Well, and, in fact, you are a pathologist. That’s what
        pathologists do. Is that correct?

        A: Among other things.       I’m a forensic pathologist, and,
        frankly─

        Q: Okay. I─

        A: May I finish? Microscopic slides are not the major
        function or major technique that a forensic pathologist
        uses.    The gross autopsy is also quite important;
        investigation is important; review of records, medical
        records in particular is important. Microscopic slides are
        important, but not the only thing, by any means.

                                 *     *      *

        I don’t break down in my report any particular appearance
        in any of the microscopic slides, but rest assured that my
        review of the microscopic slides were also taken into
        consideration along with the other material that I listed.

Id. at 3412a-3413a, 3416a.




                                     - 18 -
J-A02045-17


           without any objection[8] or inquiry by [Appellant’s] counsel
           thereafter.[9]

                                    *     *      *

           At trial, [Appellee’s] expert, Dr. Ross, used the challenged
           Power Point and pictures to help the jury understand the
           opinions addressed in his expert report. . . . Thus, the
           Power Point and photographs were relevant, authentic,
           reliable and properly admissible to assist the expert in
           educating the jury.

Trial Ct. Op. at 8-11. We agree no relief is due. See Kopytin, 947 A.2d at

747. We discern no abuse of discretion by the trial court. See Freed, 910

A.2d at 72.

        Accordingly, we affirm the judgment.

        Judgment affirmed.


8
   We note that at trial, at the conclusion of Dr. Ross’s testimony, PMMC
moved for the admission of numerous exhibits, including “Exhibit 103, which
are the Power Point slides from Dr. Ross . . . .” R.R. at 4394a. The court
asked if there was any objection to any of the exhibits. Id. Appellant’s
counsel did not object to the admission of any of the enumerated exhibits.
Id.    Furthermore, because Appellant failed to object to the Power Point
slides, we could find the issue waived. See Kaufman, 827 A.2d at 1212.
9
    The statement provided, inter alia, as follows:

           IV. EXHIBITS

              1. Medical records, employment records, insurance
              records of [Decedent], including but not limited to:

                a. Autopsy report, photographs,        power     point
                illustrations, specimens, slides

Supplemental Pretrial Statement of Defendant, Pottstown Memorial Medical
Center, 3/4/14, at 4 (emphasis added).



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J-A02045-17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017




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