J-A07033-16


MARIA HEDDLESTON AND BRIAN                 IN THE SUPERIOR COURT OF
HEDDLESTON, HER HUSBAND                          PENNSYLVANIA

                      Appellants

                 v.

OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH INC.
D/B/A/ OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.,
MAGEE-WOMEN'S HOSPITAL-UPMC AND
UPMC

                      Appellees                 No. 443 WDA 2015


            Appeal from the Judgment Entered March 2, 2015
           In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD12-10765


MARIA HEDDLESTON AND BRIAN                 IN THE SUPERIOR COURT
HEDDLESTON, HER HUSBAND                              OF
                                                PENNSYLVANIA
                      Appellees

                 v.

OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH INC.
D/B/A/ OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.,
MAGEE-WOMEN'S HOSPITAL-UPMC AND
UPMC


APPEAL OF: PEDIATRIC ALLIANCE, P.C.
J-A07033-16


D/B/A THE BREASTFEEDING
CENTER OF PITTSBURGH AND NANCY
BRENT, M.D.                                   No. 471 EDA 2015


          Appeal from the Judgment Entered March 2, 2015
         In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD12-10765

_____________________________________________________________

MARIA HEDDLESTON AND BRIAN                IN THE SUPERIOR COURT
HEDDLESTON, HER HUSBAND                             OF
                                               PENNSYLVANIA
                     Appellees

                v.

OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH INC.
D/B/A/ OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.,
MAGEE-WOMEN'S HOSPITAL-UPMC AND
UPMC

APPEAL OF: OBSTETRICAL AND
GYNECOLOGICAL ASSOCIATES OF
PITTSBURGH INC. D/B/A OB/GYN
ASSOCIATES OF PITTSBURGH,
RENATA D. HOCA, M.D., MAGEE
WOMEN'S HOSPITAL-UPMC AND UPMC
                                              No. 490 EDA 2015


          Appeal from the Judgment Entered March 2, 2015
         In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD12-10765




                                 -2-
J-A07033-16


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

CONCURRING AND DISSENTING MEMORANDUM BY JENKINS, J.:

                                                    FILED JULY 22, 2016

      In my view, neither of the reasons given by the majority for granting

Appellants a new trial warrants relief. Therefore, I respectfully dissent from

the majority’s analysis of these issues and its decision to grant a new trial to

Appellants. I concur with the majority’s disposition of the remaining issues.

      The first reason provided by the majority for ordering a new trial is

that the trial court erred by permitting defense counsel to cross-examine

Wife with demonstrative exhibits depicting certain warning signs and

symptoms for breast cancer.        Appellants argued that defense counsel

obtained diagrams from a website belonging to the Susan G. Komen Charity,

removed    the   website’s   copyright   insignia   from   the   diagrams,   and

misrepresented that his own office created the diagrams.          The diagrams

were inadmissible, Appellants said, because they were hearsay and because

Wife, a lay witness, was not qualified to authenticate them. I agree that the

trial court erred by permitting defense counsel to cross-examine Wife with

the diagrams, but I conclude that this error was harmless.

      We review evidentiary rulings for abuse of discretion.         Zieber v.

Bogert, 773 A.2d 758, 760 n.3 (Pa.2001). A ruling on evidence does not

constitute reversible error unless it is harmful or prejudicial to the




                                     -3-
J-A07033-16


complaining party. Yenchi v. Ameriprise Financial, Inc., 123 A.3d 1071,

1082 (Pa.Super.2015).

     “To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.”   Pa.R.E. 901(a).

The purpose of demonstrative evidence is to “render[] other evidence more

comprehensible for the trier of fact.” Kopytin v. Aschinger, 947 A.2d 739,

747 (Pa.Super.2008).    “As in the admission of other evidence, a trial court

may admit demonstrative evidence whose relevance outweighs any potential

prejudicial effect.” Id. “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)(1)).

     The crux of this case was whether Appellees failed to diagnose and

treat Wife despite warning signs of cancer. Obviously, the exhibits from the

Susan G. Komen website depicting warning signs and symptoms of cancer

were relevant to this question.   On the other hand, Appellants are correct

that the diagrams were hearsay, and that Wife was not qualified to

authenticate them as a layperson.

     Despite these errors in form, I respectfully disagree with the majority

that Appellants suffered prejudice from the use of these diagrams.       The

majority acknowledges that the diagrams would be admissible “if a qualified

medical expert … opined that the signs and symptoms enumerated on the


                                    -4-
J-A07033-16


slides    were   generally   accepted   and   fairly   depicted   on    the   slides.”

Memorandum, at 9. That is exactly what happened here. Both Appellees

and the trial court point out that the diagrams’ representation of the signs

and symptoms of breast cancer is consistent with the testimony of

Appellants’ causation expert, Dr. Singer.      Pa.R.A.P. 1925(a) Opinion, at 5

(“Dr. Singer agreed with the signs and symptoms of breast cancer as

displayed on the diagrams”); Brief For OB/GYN Associates of Pittsburgh, et

al, at 40-41. Appellants do not disagree in their briefing that Dr. Singer’s

testimony was consistent with the diagrams. Thus, any error was harmless.

         As a second reason for ordering a new trial, the majority asserts that

the trial court improperly cut off Dr. Singer’s testimony.             To elaborate,

Appellees filed a motion in limine to preclude Dr. Singer from offering

standard of care testimony. In response, Appellants’ counsel stated that Dr.

Singer would not opine on the standard of care but would only testify about

what a diagnostic test should have shown had it been performed “at that

time.” R.R. 794a. Defense counsel said that he had no problem with this

question. R.R. 795a. Later, Appellants’ counsel asked Dr. Singer this very

question: “Doctor, had diagnostic imaging been ordered in September or

October 2009, would it have revealed the tumor?” R.R. 1056a. Dr. Singer

testified: “In my opinion, as an oncologist, yes. Because even though she

was stage IV one year later, I do believe that the cancer was present back in

2009.       It wasn’t palpable, obviously, then because her breasts were


                                        -5-
J-A07033-16


engorged. And studies such as an ultrasound or MRI would be able to …”

Id.   At that moment, defense counsel objected on the ground that Dr.

Singer was giving standard of care testimony: “This is backdooring standard

of care testimony.   If you did these tests, what would they have shown?

Suggesting these tests should have been done … is standard of care

testimony.” R.R. 1057a. The court sustained defense counsel’s objection on

the ground that “we’re talking standard of care here, so it’s out.”     R.R.

1058a.   Appellants claim that defense counsel profited from this ruling by

arguing during his summation that it would be inappropriate to hold

Appellees liable for failing to order diagnostic imaging, because Appellants

failed to demonstrate what imaging would have shown.

      In my view, the trial court’s ruling was improper.     The purpose of

expert testimony on the standard of care is to demonstrate the steps that

Appellees should have taken. The purpose of expert testimony on causation

is to demonstrate what would have happened had Appellees taken certain

steps, but without opining whether Appellees should have taken these steps.

Dr. Singer’s answer fell into the latter category – had diagnostic imaging

been performed in 2009, he said, it would have revealed cancer because

cancer was present at that time.    The trial court erred by ruling that the

final, truncated sentence of Dr. Singer’s answer constituted standard of care

testimony. All that Dr. Singer seemed poised to say was a causation opinion




                                    -6-
J-A07033-16


that an ultrasound or MRI in 2009 would have revealed cancer, not a

standard of care opinion that these tests should have been performed.

       Nevertheless, I do not believe that the trial court’s ruling prejudiced

Appellants. The majority seems to believe that the trial court excluded Dr.

Singer’s entire answer, thus preventing Appellants from proving causation.

In my view, the trial court’s ruling did not prevent Appellants from proving

causation.    The court merely excluded the final truncated sentence, “and

studies such as an ultrasound or MRI would be able to …” The court did not

exclude the first three sentences of Dr. Singer’s answer, which presented a

coherent theory of causation to the jury: had diagnostic imaging been

performed in 2009, it would have revealed cancer. As a result, Appellants

were able to present a complete theory of malpractice to the jury.

Appellants elicited standard of care testimony from Robert Hecht, M.D. that

Appellees were negligent for failing to order diagnostic imaging in 2009 1 and

causation testimony from Dr. Singer that diagnostic imaging would have

revealed Wife’s cancer in 2009.2

____________________________________________


1
  Trial Transcript, Day 2, at 195 (Dr. Hecht’s testimony that when Wife
presented with severe pain, defendants “should have ordered diagnostic
testing”), 203 (when Wife presented with severe pain, Dr. Hoca should have
“ordered diagnostic imaging”), 206 (Dr. Hoca violated the standard of care
by not ordering any sort of diagnostic imaging to evaluate [Wife’s] breast
problem”).
2
  The fact that the court permitted Appellants’ case to go to the jury
supports my interpretation of the evidence. Had the court excluded Dr.
(Footnote Continued Next Page)


                                           -7-
J-A07033-16


      It is our duty to affirm the trial court’s decision if it can be justified on

any basis. Commonwealth v. Judge, 916 A.2d 511, 517 n.11 (Pa.2007).

For the reasons given above, I conclude that both of the trial court’s rulings

were harmless errors. Accordingly, I respectfully dissent from the majority’s

decision to grant Appellants a new trial.




                       _______________________
(Footnote Continued)

Singer’s entire answer and thus excluded all causation testimony, Appellees’
attorneys no doubt would have obtained a directed verdict at the close of
evidence.



                                            -8-
