J-A08045-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

EDWARD AND ROSE MAGDITCH,               :     IN THE SUPERIOR COURT OF
INDIVIDUALLY   AND    AS    CO-         :           PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF         :
TRAVIS MAGDITCH, DECEASED,              :
                                        :
                   Appellants           :
                                        :
      v.                                :
                                        :
DENNIS   ERIK   VONKIEL,   D.O.,        :
PRIMECARE MEDICAL INC., LEHIGH          :
COUNTY, AND EDWARD SWEENEY,             :
INDIVIDUALLY AND AS DIRECTOR OF         :
CORRECTIONS FOR LEHIGH COUNTY,          :
                                        :
                  Appellees             :     No. 2623 EDA 2015

             Appeal from the Judgment Entered August 13, 2015
               in the Court of Common Pleas of Lehigh County
                     Civil Division, at No(s): 2012-C-5428

BEFORE: BOWES, DUBOW, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 08, 2016

      Edward and Rose Magditch (collectively the Magditches) appeal from

the judgment entered against them on August 13, 2015. We affirm.

      The trial court summarized the pertinent factual and procedural history

of this action as follows.

            On January 5, 2012, Travis Magditch [(Decedent)] died
      while incarcerated in the Lehigh County Prison.           [The
      Magditches] commenced this action on December 28, 2012, by
      [c]omplaint filed against Defendants Lehigh County, Edward
      Sweeney (Sweeney), as Director of Corrections for Lehigh
      County and Individually, [Dennis Erik] Von Kiel [D.O], and
      PrimeCare [Medical Incorporated].     The [c]omplaint alleged
      theories of negligence against Von Kiel and PrimeCare’s agents



* Retired Senior Judge assigned to the Superior Court.
J-A08045-16


      arising from the failure to properly assess and treat [Decedent’s]
      asthma at the Lehigh County Prison, as well as the failure to
      have appropriate policies and procedures in place at the prison
      regarding prisoners with asthma. In addition, [the Magditches]
      asserted civil rights claims against all [d]efendants for failing to
      provide constitutionally required necessary medical treatment.

            Prior to trial, upon consideration of [d]efendants’ motions
      for summary judgment, judgment was entered in favor of []
      Lehigh County and Sweeney as a matter of law. Subsequent to
      [the trial court’s] ruling [the Magditches] withdrew their civil
      rights claims against Von Kiel and PrimeCare. Accordingly, only
      the negligence cause of action remained against [] Von Kiel and
      PrimeCare [(hereinafter collectively referred to as Defendants)]
      at the time of trial.

            Trial commenced[1] on March 23, 2015 and concluded on
      March 27, 2015, when the jury returned a verdict in favor of
      Defendants. Specifically, the jury found that PrimeCare was
      negligent, but that said negligence was not a factual cause in
      bringing about [Decedent’s] harm.

Trial Court Opinion (TCO), 7/31/2015, at 1 (citations omitted).

      The Magditches filed timely post-trial motions, which were denied by

the trial court. Judgment was entered and this timely filed appeal followed.

Both the Magditches and the trial court have complied with the directives of

Pa.R.A.P. 1925.

      On appeal, the Magditches present for our consideration the following

issue: “Did the trial court abuse its discretion by precluding witness


1
  Prior to trial, Defendants filed a motion in limine to disallow the testimony
of Dennis Cardano (Cardano), who was an inmate at the Lehigh County
Prison when the incident resulting in Decedent’s death occurred. The
Magditches informed Defendants ten days prior to trial of their intention to
call Cardano, and Defendants filed a motion soon thereafter. The trial court
granted Defendants’ motion, and precluded Cardano from testifying, which is
the central issue of the instant appeal.


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[Cardano] from testifying on critical issues of causation… [?]”          Appellant’s

Brief at 4.2

      “As abuse of discretion is the standard of review in this matter, [it is

this Court’s] function to determine whether the trial court’s decision to

exclude     []   testimony   []   constituted   unreasonableness,   or    partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).

Such decisions “are within the sound discretion of the trial court. We may

reverse only if we find an abuse of discretion or error of law.” Cimino v.

Valley Family Med., 912 A.2d 851, 853 (Pa. Super. 2006) (citations

omitted).

      To preclude the relevant testimony of a witness is a drastic step which

should not be taken except for weighty reasons. Gilbert v. Otterson, 550

A.2d 550, 555 (Pa. Super. 1988). “In determining whether or not a witness

should be precluded for failure to comply with discovery rules” a court must

consider the following factors:

      (1) the prejudice or surprise in fact of the party against whom
      the excluded witnesses would have testified, (2) the ability of
      that party to cure the prejudice, (3) the extent to which waiver
      of the rule against calling unlisted witnesses would disrupt the
      orderly and efficient trial of the case or of cases in the court, (4)
      bad faith [or] willfulness in failing to comply with the court’s
      order.



2
 We note that on appeal, the Magditches do not challenge the trial court’s
denial of a continuance.


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Smith v. Grab, 705 A.2d 894, 902 (Pa. Super. Ct. 1997) (citing Linker v.

Churnetski Transp., Inc., 520 A.2d 502, 503 (Pa. Super. 1987)). “In the

absence of bad faith or willful disobedience of the rules, the most significant

considerations are the importance of the witness’s testimony and the

prejudice, if any, to the party against whom the witness will testify.” Linker

520 A.2d at 504.

      Keeping the above standards in mind, we now address the Magditches’

claim on appeal.   The Magditches contends that Cardano’s testimony was

significant, as it went to the crucial issue of causation, which was highly

contested by the parties. Magditches’ Brief at 24-25. The Magditches aver

the trial court “abused its discretion on multiple grounds” when it disallowed

Cardano’s testimony and “[t]he trial court’s analysis was wrong in several

aspects.” Id. at 25 and 32.

      Specifically, the Magditches argue that Cardano’s testimony should not

have been a surprise, since his name appeared on a list of inmates, to which

the Defendants had access. Further, the Magditches contend that defense

counsel failed to mitigate any surprise caused by the late addition of

Cardano by waiting several days after receiving the information before filing

their motion in limine.   Id. at 26-27.    The Magditches note that the trial

court acknowledged that the late discovery of Cardano and his testimony

was not a “clever litigation tactic” and the trial court had tools available to

remedy the situation, including ordering depositions to be conducted, or



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granting a continuance, which Defendants themselves had requested.         Id.

25-28.   The Magditches aver that the trial court’s denial of a continuance

“combined with Defendants’ inaction created the predicament that led the

trial court to preclude Cardano’s testimony.” Id. at 28.

      In its 1925(b) opinion, the trial court began its discussion by providing

additional background regarding the Magditches’ late addition of Cardano to

its witness list. The trial court stated the following:

            Per [o]rder dated February 6, 2014, and upon stipulation
      of the parties, the discovery deadline expired on May 19, 2014.

            On February 13, 2015, [the Magditches] filed their Pre-
      Trial Statement. [Cardano] was not identified as a witness.
      Further, no witness was identified that had knowledge of
      [Decedent] experiencing asthma-like symptoms or having asked
      for help prior to his death. No such facts were provided in the
      “Facts Giving Rise to Liability.”

             On March 13, 2015, ten days before the start of trial, [the
      Magditches’] counsel faxed defense counsel and the court an
      Amended Pre-Trial Statement listing [Cardano] as a trial witness.
      The substance of his testimony was not provided, and the facts
      giving rise to liability were not amended. Contrary to [the
      Magditches’] assertion in their post-trial memorandum, the
      amended pre-trial statement was never filed of record with the
      court.

            Defendants filed a motion in limine to preclude the
      testimony of Cardano.

            On March 18, 2015, [the Magditches’] counsel verbally
      provided defense counsel with an offer of proof as to Cardano’s
      proposed testimony.      As a result, on March 19, 2015,
      Defendants filed a supplemental motion in limine to preclude the
      testimony of Cardano and/or request a continuance of the trial.

            [The Magditches] responded to Defendants’ first motion in
      limine on Friday, March 20, 2015; admitting that [the


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J-A08045-16


      Magditches] have not produced any sort of indication as to what
      Cardano will state at trial and further responding that [“the
      Magditches did] not know what Cardano will state at trial. Even
      if [the Magditches] could predict [Cardano’s] testimony, [the
      Magditches] are not aware of any rule or case law requiring
      [p]laintiffs to inform [d]efendants of what these fact witnesses
      may say at trial.”

TCO, 7/31/2015, at 11-12 (internal citations removed).

      In reviewing the necessary factors, the trial court offered the following

analysis:

            In examining the first factor as set forth in Grab, we must
      consider the prejudice or surprise to Defendants, the party
      against who[m] the excluded witnesses would have testified. As
      to surprise, there can be no question that Defendants were
      surprised by the late offer to allow Cardano’s testimony at trial.
      Discovery in this case was lengthy. The discovery deadline had
      been extended and expired and the deadline for pre-trial
      statements had expired. No witness was identified that would
      have knowledge of [Decedent] exhibiting asthmatic symptoms or
      asking for and not receiving medical help.

             Cardano had been identified as an inmate in a discovery
      document, which was provided by Lehigh County and included a
      list of approximately 100 inmates in Housing Unit 2A during
      [Decedent’s] time of incarceration. Defendants were provided
      correspondence between counsel for Lehigh County and
      Sweeney and [the Magditches’] counsel, documenting [the
      Magditches’] answers to interrogatories in which [the
      Magditches] admit that they were unaware of a witness and did
      not intend to call a witness at trial to support the allegations that
      [Decedent] requested help and did not receive assistance from
      employees of Lehigh County Prison on the evening of January 4,
      2012. Defendants were entitled to rely on, and did, in fact, rely
      on [the Magditches’] representations, even if made to another
      party, when preparing for trial. Learning that [the Magditches]
      intended to call a witness who would testify that on the evening
      of January 4, 2012, [Decedent] was exhibiting asthmatic
      symptoms, and that both the witness and [Decedent] requested
      help but did not receive any, is the epitome of surprise.



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J-A08045-16


            In addition, Defendants were unfairly prejudiced by the
     late notice of the witness. Appellate courts find prejudice to
     exist when there is no time to prepare or adequately respond to
     surprise testimony.      Defendants received notice of [the
     Magditches’] intention to call Cardano on March 13, 2015, along
     with his name and address. However, it was not until March 18,
     2015, two business days prior to the start of trial, that
     Defendants were notified of the proposed purpose and
     anticipated testimony for which Cardano was being called.

           At that point in time, Defendants’ experts had rendered
     opinions, not based on the absence of evidence regarding
     asthmatic symptoms as [the Magditches] suggest, but instead
     upon the existence of contrary evidence by other witnesses and
     medical records that indicated [Decedent] was not exhibiting
     physical manifestations of asthma (via vital signs and
     appearance).      To allow the testimony of a witness who
     undermines Defendants’ entire case without sufficient time for
     Defendants’ experts to evaluate how the new factual
     circumstances possibly impact their opinions is unfairly
     prejudicial to Defendants.

           This leads us to the second factor: the ability of the
     Defendants to cure the prejudice. Defendants attempted to cure
     the prejudice in the only manner they could by requesting a
     continuance of the trial. We denied the request for continuance
     for the reasons set forth in our analysis of the third factor below.
     With the continuance of trial denied, Defendants’ prejudice was
     irreversible.

           Even assuming Defendants were capable of completing a
     deposition of Cardano prior to trial, Defendants would not have
     had time to gather information prior to the deposition to make it
     meaningful.    Time was required to investigate whether the
     witness was subject to impeachment or otherwise credible.
     Cardano’s testimony was inconsistent with every other person
     [who] had contact with [Decedent] on January 4, 2012; and, in
     addition, Cardano described a correctional officer who had
     contact with both [Decedent] and Cardano and allegedly denied
     [Decedent] access to medical help.          To allow Cardano’s
     testimony without the time or opportunity to investigate the
     substance of his statements would have been unfairly prejudicial
     to Defendants.



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J-A08045-16


           In order to challenge Cardano’s testimony, Defendants
     would require time to receive and examine prison records and
     medical records related to Cardano, as well as time to
     investigate additional people, including the unidentified
     correctional officer. Further, additional information might have
     been sought by Defendants in order to differentiate the physical
     manifestations of asthma versus the physical manifestations of
     heroin withdrawal, which [Decedent] was experiencing. Without
     the continuance of trial, the prejudice against Defendants was
     irreversible.

           As to the third factor, allowing Cardano to testify would
     have disrupted the orderly and efficient trial of the case and the
     other cases before this court. In order to cure the prejudice
     suffered by Defendants as a result of Cardano’s surprise
     testimony, such a significant amount of time would have been
     required that the only alternative would have been to continue
     the trial, not simply delay the commencement of the trial by a
     few days. It should be noted that the jury was selected as of
     March 23, 2015.

            This case was originally attached for trial on November 10,
     2014, by order of court dated April 24, 2013, On February 6,
     2014, upon stipulation of the parties, the trial date in this matter
     was continued to March 23, 2015. The court schedule could not
     accommodate a delay in the trial, and, in order to continue the
     trial, a new trial date would not have been available for over a
     year.

            Because each Pennsylvania county operates its calendar
     differently, a description of the calendaring system in Lehigh
     County would help explain why a continuance was not a
     satisfactory solution.

           Cases are assigned to individual judges, so that the judge
     may guide the discovery and scheduling of a case throughout its
     entirety. …

           …Early in the case, case management deadlines are
     established by the court, and this judge does so only after
     consultation with counsel. In medical malpractice cases, and
     other cases of significance (designated “major cases” in some
     counties) we give those cases a specialized listing. This method
     is favored by the civil bar, plaintiff and defense alike, because it


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J-A08045-16


     allows them to schedule and present expert witnesses in person,
     rather than by video.

           Because we have a 2 week trial term every 6 weeks (the
     other weeks are filled with family court, custody cases, and
     miscellaneous civil matters), that means we can list only 9 to 10
     major cases a year. Even with this restriction, we are able to
     close out our major cases in a period of time which is fair to all
     parties. But it does mean that if you miss your spot, which has
     been reserved for approximately two years, the next one or two
     years of opportunity have already been assigned to other cases.

            In this case, the trial was originally scheduled for
     November 10, 2014. Upon the joint request of the parties, the
     deadlines were extended and the trial was rescheduled for March
     23, 2015. The new schedule required the court to schedule the
     matter at a time which had previously been promised to another
     trial. We decided to give priority to this case; we advised the
     other case that they would not be reached, and the lawyers in
     the other case released their expert witnesses.

            Therefore, to reschedule this case would have meant two
     cases with lengthy trial attachments would have been continued
     for a lengthy period of time while precious courtroom time went
     unused, an inefficient use of judicial resources.

            Finally, the fourth factor is whether there was bad faith or
     willfulness in failing to comply with the court’s order. [the
     Magditches] knew as of September 17, 2013, the names of all
     the inmates in Housing Unit 2A of the Lehigh County Prison on
     the date of this unfortunate incident. However, there is no
     finding that [the Magditches’] counsel acted in bad faith or acted
     with a willful disobedience in failing to comply with the court's
     discovery order. [The Magditches’] counsel was not purposely
     attempting a trial by ambush. We do not have any reason to
     believe that this eleventh hour offer was the result of poor
     preparation on the part of [the Magditches’] counsel, knowing
     said counsel as hard working and ethical. We note, however,
     that, although the intention of counsel is not questioned, the
     consequence to Defendants remains unchanged.

           In the absence of bad faith, the most significant factors for
     our consideration are the importance of the witness's testimony



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J-A08045-16


      and the prejudice, if any, to the party against whom the witness
      will testify.

            [The Magditches] argue that Cardano’s testimony is of the
      utmost importance in that it could have helped the jury establish
      causation. We cannot disagree with [the Magditches] that that
      possibility exists. However, we do not believe that Cardano’s
      testimony holds the weight that [the Magditches] give it. …

            … We considered and weighed both the importance of
      Cardano’s testimony as offered by counsel and the irreversible
      prejudice that Defendants would have suffered in allowing such
      testimony and found at the time of trial that fairness dictated
      preclusion of Cardano’s testimony.

TCO, 7/31/2015, at 15-20 (citations omitted).

      Under these circumstances, we discern no error in the trial court’s

analysis and cannot find the trial court abused its discretion in disallowing

Cardano’s testimony. In doing so we note that “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.”   Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super.

2006) (citing Grady v. Frito–Lay, Inc., 559, 839 A.2d 1038, 1046 (Pa.

2003)).

      Having concluded the trial court did not abuse its discretion in granting

Defendant’s motion in limine, the Magditches are entitled to no relief from

this Court.

      Judgment affirmed.




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J-A08045-16


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/8/2016




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