J-A24041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL DEY,                                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BRUCE J. WILDERMAN, D.D.S.,

                            Appellee                   No. 424 EDA 2014


              Appeal from the Judgment Entered October 25, 2013
                in the Court of Common Pleas of Bucks County
                        Civil Division at No.: 2010-04845


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 06, 2014

        Appellant, Carol Dey, appeals from the judgment entered on October

25, 2013,1 following a jury verdict against her and in favor of Appellee, Dr.

Bruce J. Wilderman, D.D.S., in this dental malpractice action.      On appeal,

Appellant challenges several of the trial court’s evidentiary rulings. For the

reasons discussed below, we affirm.

        We take the underlying facts in this matter from the trial court’s April

3, 2014 opinion.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Appellant purports to appeal from the order denying her post-trial motions.
However, an appeal does not lie from the denial of post-trial motions.
Jackson v. Kassab, 812 A.2d 1233, 1233 n.1 (Pa. Super. 2002), appeal
denied, 825 A.2d 1261 (Pa. 2003). We have accordingly corrected the
caption.
J-A24041-14


           [Appellant] is a sixty-nine (69) year old woman, and a
     dental patient of [Appellee], a licensed dentist. In March of
     2008, [Appellant] went to [Appellee’s] office for an emergency
     dental appointment when she cracked a tooth and needed it
     repaired. [Appellant] had a follow-up appointment on May 29,
     2008. Upon arriving at [Appellee’s] office[,] she had x-rays and
     photographs taken of her mouth. The x-rays were taken, and
     then the photographs were to be taken by the dental assistant,
     Danielle Ficarra (hereinafter, “Ficarra”).

            [Appellant] testified that Ficarra explained the process of
     taking these photographs, and the use of spraying condensed air
     into [Appellant’s] mouth. The purpose of this spray was to blow
     saliva away from the gum line to obtain an accurate photograph.
     Ficarra inadvertently picked up a can of dust remover, rather
     than the can of compressed air.          Ficarra sprayed the dust
     remover to dry the saliva off [Appellant’s] teeth. [Appellant’s]
     testimony was she immediately felt a burning sensation on her
     lips following the first spray, and told Ficarra of this sensation.
     Ficarra assured [Appellant] this was just compressed air and the
     air probably felt cold to her lips. [Appellant] allowed Ficarra to
     continue with another photograph. Ficarra instructed [Appellant]
     to make a broader smile with her face to give a greater
     exposure. Ficarra proceeded to spray the dust remover a second
     time, and [Appellant] felt the same burning sensation.
     [Appellant] again told Ficarra of the burning sensation, who
     reassured [Appellant] that it was “. . . just a can of air. There's
     nothing in here that would burn your lips.”

            Ficarra continued the process of spraying [Appellant’s]
     mouth prior to taking a picture. [Appellant] testified that on one
     occasion, Ficarra attempted to spray the saliva off of
     [Appellant’s] teeth, and air failed to be released from the nozzle.
     [Appellant] stated that Ficarra then used both hands to squeeze
     the nozzle, and “something liquid” came out of the can. The
     liquid came in contact with [Appellant’s] upper lip, in the area
     right below her nose. Ficarra then put down the can and stated,
     “. . . oh, my God, what is that? There’s some white on your
     face.” [Appellant] told Ficarra that whatever the substance was
     had gone up her nostrils, into her throat, and was severely
     burning. Ficarra left the room and came back with wet paper
     towels. Ficarra then wiped off [Appellant’s] face with a wet paper
     towel, at which point [Appellant] told her she was sick to her
     stomach and did not wish to continue.              Ficarra assured

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     [Appellant] that there would only be a few more pictures, and
     that they would be done soon. There were no more sprays of
     the dust remover.

           When the photographs were finished, [Appellant] went into
     the bathroom and vomited twice. The burning sensation had
     travelled from her nose, down her throat and into her stomach.
     [Appellant] drank a glass of water, which made the burning
     sensation much worse, and caused [Appellant] to vomit again.
     [Appellant] then told Ficarra that she did not feel well, and left
     the appointment. [Appellant] walked out to her car to drive
     home, and had to stop a few times to vomit again.

            Upon arriving home, [Appellant’s] condition worsened, as
     she felt shaky, dizzy, and had a “very bad burning in my throat
     and my stomach and my mouth.”              [Appellant] called the
     manufacturer of the dust remover and asked about the
     ingredients. She was instructed to eat a piece of chocolate to
     relieve the burning sensation and to drink some milk. She could
     not taste the chocolate at all, and could not smell her fragrance
     shampoo. [Appellant] went to her office in order to be around
     people in case her condition worsened.         She testified that
     following this incident, her stomach and mouth gradually felt
     better, but her smelling and tasting did not improve. [Appellant]
     testified that her sense of smell and taste has not changed since
     May 29, 2008, the day of the incident.

            Ficarra’s testimony differed from [Appellant’s]. Ficarra
     testified that she sprayed the dust remover into [Appellant’s]
     mouth only one time because there was not enough saliva on
     [Appellant’s] teeth during the first few photographs, and the
     spray was not necessary until the last photograph. Ficarra
     denies that a white substance came out of the can and made
     contact with [Appellant’s] upper lip. Ficarra testified it was not
     her practice to continue using a product if it made a patient
     uncomfortable or hurt them. Ficarra denies she was told that
     the spray was causing a burning sensation, and if told she would
     have stopped and immediately notified [Appellee]. Ficarra did
     testify that after the first spray, [Appellant] was sneezing and
     coughing. [Appellant] then went to the bathroom, and asked
     Ficarra for a drink. Ficarra provided [Appellant] with a soft
     drink, upon which [Appellant] said she was not feeling well and
     left the office.


                                   -3-
J-A24041-14


(Trial Court Opinion, 4/03/14, at 2-5) (footnotes omitted).

       On May 6, 2010, Appellant filed a complaint in dental malpractice. On

July 23, 2010, Appellee filed an answer and new matter. On May 30, 2013,

Appellant filed a motion in limine seeking to preclude the testimony of

Appellee’s expert, Dr. Harry A. Milman.2 (See Motion in Limine, 5/30/13, at

3). Appellant contended that Appellee had not produced Dr. Milman’s expert

report in a timely fashion. (See id. at 2). Following oral argument on June

17, 2013, the trial court denied the motion in limine the next day. (See N.T.

Motion Hearing, 6/18/13, at 3).

       In addition, during the June 18, 2013 hearing, the parties litigated the

issue of whether Appellant, in her opening statement, could refer to an

independent medical examination (IME) conducted, by agreement of the

parties, by Dr. Kenneth Briskin, an ear, nose and throat (ENT) specialist.

(See id. at 3-5). Neither party was calling Dr. Briskin as a witness at trial.

(See id.). Appellee objected to any references to Dr. Briskin or his findings.

(See id.).     The trial court sustained the objection as to the mention of Dr.

Briskin in opening statements, but reserved ruling on whether either party

could mention Dr. Briskin at trial. (See id. at 13-14). On June 19, 2013,



____________________________________________


2
  Both Dr. Milman’s first and last names are spelled differently throughout
the record in this matter. We will use the spelling listed on his resume, Dr.
Harry A. Milman. (See Motion in Limine, 5/30/13, at Exhibit B).



                                           -4-
J-A24041-14


the trial court revisited its ruling and held that neither party could reference

Dr. Briskin. (See N.T. Trial, 6/19/13, at 163).

             During the trial, both sides presented expert witnesses.
      [Appellant’s] expert witness was Dr. Richard Doty, Director of
      the Smell and Taste Center at the University Of Pennsylvania
      School Of Medicine. Dr. Doty stated that he performed many
      tests on [Appellant], and she has a complete loss of smell. In
      addition, [Appellant] exhibited some loss of taste, but not as
      drastic as her loss of smell. Dr. Doty said that the dust remover
      incident on May 29, 2008 was the “best explanation I would
      have” for [Appellant’s] loss of smell. This opinion was offered
      with reasonable scientific certainty. [Appellee’s] expert witness
      was Dr. Harry [Milman], an expert on pharmacology and
      toxicology. He testified that the active ingredient in the dust
      remover does not have the ability to cause loss of smell or taste
      in liquid or gas form.

          [Appellee] stipulated to liability,      and    causation   and
      damages were issues for the jury.

(Trial Ct. Op., at 5) (footnotes omitted).

      Prior to Appellee’s testifying, Appellant asked for an offer of proof with

respect to Appellee’s testimony. (See N.T. 6/21/13, at 3). Defense counsel

stated that he wanted Appellee to testify, as an expert, about the

photographs taken of Appellant’s teeth. (See id. at 3-4). Ficarra took these

photographs on the date of the incident, and counsel wanted Appellee to

opine on whether they showed spray on them and draw conclusions from his

viewing of the pictures.     (See id. at 3-4).      The trial court ruled that

Appellee could not testify as an expert about Appellant’s medical problems.

(See id. at 29, 32).    However, the trial court did rule that Appellee could

describe what was on the photographs. (See id. at 32). When Appellee took


                                      -5-
J-A24041-14


the stand, he testified that saliva was present in some of the photographs of

Appellant’s mouth. (See id. at 40, 42-48, 50).

        At the close of evidence, Appellant requested a directed verdict, which

the trial court denied. (See N.T. 6/24/13, at 28). On June 24, 2013, the

jury found in favor of Appellee and against Appellant.           On July 2, 2013,

Appellant filed a motion for post-trial relief, which the trial court denied on

October 17, 2013.         The Prothonotary entered judgment on October 25,

2013.        Appellant filed a motion for reconsideration on November 6, 2013,

which the trial court granted on November 12, 2013.                The trial court

subsequently held oral argument on the motion for post-trial relief.             On

January 21, 2014, the trial court again denied the motion for post-trial relief.

The instant, timely appeal followed. On February 12, 2014, the trial court

ordered Appellant to file a concise statement of errors complained of on

appeal. See Pa.R.A.P. 1925(b). On March 10, 2014, Appellant filed a timely

concise statement.        See id.   On April 3, 2014, the trial court issued an

opinion. See Pa.R.A.P. 1925(a).

        On appeal, Appellant raises the following questions for our review:

        I.      Whether the trial court committed error of law or abused
                its discretion in denying [Appellant’s] request for a directed
                verdict on the issue of causation?

        II.     Whether the honorable trial court committed error of law
                or abused its discretion in permitting [Appellee] to testify
                about saliva on photographs?




                                         -6-
J-A24041-14


      III.   Whether the honorable trial court committed error of law
             or abused its discretion in denying [Appellant’s] motion in
             limine to preclude the testimony of defense expert [Harry]
             Milman, PhD, due to the late identification and production
             of an expert report?


      IV.    Whether the honorable trial court committed error of law
             or abused its discretion in precluding [Appellant] from
             making any references to the medical evaluation
             performed on behalf of the defense by Kenneth B. Briskin,
             M.D., an ENT physician?

(Appellant’s Brief, at 5).

      In her first claim, Appellant alleges that the trial court erred in denying

her request for a directed verdict on the factual cause of harm because

“there was no dispute that the negligence of [Appellee] caused [Appellant]

some degree of harm.” (Appellant’s Brief, at 13). We disagree.

            A directed verdict may be granted only where the facts are
      clear and there is no room for doubt. In deciding whether to
      grant a motion for a directed verdict, the trial court must
      consider the facts in the light most favorable to the nonmoving
      party and must accept as true all evidence which supports that
      party’s contention and reject all adverse testimony.

Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 632 (Pa. Super.

2012), appeal denied, 69 A.3d 602 (Pa. 2013) (quotation marks and citation

omitted).

            In reviewing a trial court’s decision whether or not to grant
      judgment in favor of one of the parties, we must consider the
      evidence, together with all favorable inferences drawn
      therefrom, in the light most favorable to the verdict winner. Our
      standard[s] of review when considering the motions for a
      directed verdict and judgment notwithstanding the verdict
      [JNOV] are identical. We will reverse a trial court’s grant or
      denial of a [directed verdict or JNOV] only when we find an


                                      -7-
J-A24041-14


      abuse of discretion or an error of law that controlled the
      outcome of the case. Further, the standard of review for an
      appellate court is the same as that for a trial court.

                   There are two bases upon which a [directed
            verdict or JNOV] can be entered; one, the movant is
            entitled to judgment as a matter of law and/or two,
            the evidence is such that no two reasonable minds
            could disagree that the outcome should have been
            rendered in favor of the movant. With the first, the
            court reviews the record and concludes that, even
            with all factual inferences decided adverse to the
            movant, the law nonetheless requires a verdict in his
            favor. Whereas with the second, the court reviews
            the evidentiary record and concludes that the
            evidence was such that a verdict for the movant was
            beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012),

appeal denied, 69 A.3d 243 (Pa. 2013) (citation omitted).

      Here, Appellant premises her claim entirely on her belief that both her

expert, and Appellee’s expert, Dr. Milman, testified that she had suffered an

injury because of being sprayed with dust remover. (See Appellant’s Brief,

at 19-21). However, Appellant mischaracterizes Dr. Milman’s testimony. In

relevant part, Dr. Milman testified as follows:

      [Appellant’s Counsel]: Well, you do know, since apparently
      you’re relying upon certain things which were said, you do know
      that my client said that it gave her a burning sensation; is that
      correct?

      [Dr. Milman]: Yes.

      [Appellant’s Counsel]: That’s an indication of some injury, is it
      not?

      [Dr. Milman]: Yes.


                                     -8-
J-A24041-14


      [Appellant’s Counsel]: And you acknowledged that for some
      weeks thereafter, although she improved, she continued to
      complain of pain in her throat and in her nostrils. Is that so?

      [Dr. Milman]: That was her testimony, yes.

      [Appellant’s Counsel]:   And that’s an indication of injury, is it
      not?

      [Dr. Milman]: It could be, yes.

(N.T. Trial, 6/20/13, at 214-15).    Thus, Dr. Milman did not concede that

Appellant suffered any injury; he testified that he was aware of Appellant’s

testimony that she believed she suffered an injury.     He also testified that

there was no scientific proof that being sprayed with the dust remover

caused Appellant’s injuries. (See id. at 216).

      In Holland v. Zelnick, 478 A.2d 885 (Pa. Super. 1984), the plaintiff

claimed to have neck pain because of a car accident, a claim supported by

her experts but not by the defense expert. See Holland, supra at 886. On

appeal, the plaintiff argued that the trial court should have found for her on

the issue of causation and she sought a new trial limited to damages. See

id. This Court found the plaintiff was not entitled to a new trial on damages,

stating:

      This is not a case where a defendant is found to be negligent and
      his negligence is found to have caused plaintiff’s injuries, but an
      award of adequate damages is not returned because of some
      subjective view on the part of the jury. In this case despite the
      finding of negligence on defendant’s part for “bumping” plaintiff’s
      vehicle, the jury clearly found that defendant’s actions had
      nothing to do with plaintiff’s condition, real or otherwise.
      Simply put, the jury rejected the testimony of plaintiff’s
      expert medical witnesses and accepted the testimony of

                                     -9-
J-A24041-14


       defendant’s expert. The jury simply did not believe that the
       headaches and other severe pain described by plaintiff and her
       parents at her trial were caused by defendant’s negligent action
       in bumping plaintiff’s vehicle. Thus, the jury found that
       defendant's negligence was not the proximate cause of plaintiff’s
       complaints and the failure of it to find proximate cause was fatal
       to plaintiff's claim.

Id. at 887 (emphasis added).

       Here, as in Holland, there was a disagreement among the experts as

to whether Appellee’s negligence caused Appellant’s injury. Given this, the

trial court properly gave the case to the jury to determine the credibility of

the expert witnesses, because, as in Holland, Appellant was not entitled to

a directed verdict on causation.3 See id. Appellant’s first claim lacks merit.


____________________________________________


3
  Appellant’s reliance on Neison v. Hines, 653 A.2d 634 (Pa. 1995) and
Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999) (en banc) is misplaced.
(See Appellant’s Brief, at 14-15). In Neison, the plaintiff went immediately
to a hospital and physicians treated her there for injury resulting from an
automobile accident, for which the defendant admitted liability.            See
Neison, supra at 637-38. Her experts testified as to her lingering injuries,
and the defendant’s expert, while contesting that her injuries continued
some two years after the accident, did not contest that she suffered some
injury because of the accident. See id. at 636. However, the jury did not
award any damages and the trial court granted a motion for a new trial.
See id. Thus, because of the uncontroverted testimony that the plaintiff
suffered some injury, our Supreme Court held that the trial court correctly
awarded a new trial as to damages. See id. at 638-39. Likewise, in Mano,
the trial court issued a directed verdict as to the defendant’s negligence in
an automobile accident and both parties’ medical experts testified the
plaintiff suffered some injury because of the accident. See Mano, supra at
495, 497. Thus, we held that, “[i]t is impermissible for a jury, in a personal
injury case, to disregard the uncontroverted testimony from the experts for
both parties that the plaintiff suffered some injury as a result of the accident
in question.” Id. at 497 (citation omitted). Here, as discussed above, the
(Footnote Continued Next Page)


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J-A24041-14


      In her second claim, Appellant alleges that the trial court erred in

allowing Appellee to testify regarding his review of photographs, which

allegedly showed saliva on Appellant’s teeth. (See Appellant’s Brief, at 22-

25). We disagree.

      Our standard of review with respect to the admissibility of evidence is

narrow:

            [w]hen we review a trial court ruling on admission of
      evidence, we must acknowledge that decisions on admissibility
      are within the sound discretion of the trial court and will not be
      overturned absent an abuse of discretion or misapplication of
      law. In addition, for a ruling on evidence to constitute reversible
      error, it must have been harmful or prejudicial to the
      complaining party.

            An abuse of discretion is not merely an error of judgment,
      but if in reaching a conclusion the law is overridden or
      misapplied,  or    the   judgment       exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence or the record, discretion is abused.

Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008), appeal denied,

962 A.2d 1198 (Pa. 2008) (quotation marks and citation omitted). A party

suffers prejudice when the trial court's error could have affected the verdict.

See Trombetta v. Raymond James Financial Services, Inc., 907 A.2d

550, 561 (Pa. Super. 2006).

      Here, as discussed above, the trial court did not permit Appellee to

testify as an expert but only as to his perceptions and matters within his
                       _______________________
(Footnote Continued)

experts disagreed as to whether Appellant suffered some injury as a result of
Appellee’s negligence, thus neither Neison nor Mano is apposite.



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J-A24041-14


personal knowledge. (See N.T. Trial, 6/21/13, at 28, 32). Appellant argues

that Appellee violated this ruling by testifying about the presence of saliva in

the photographs, which, she argues, led to the inference that saliva would

not have been present if Ficarra had sprayed her with dust remover. (See

Appellant’s Brief, at 22-24). However, Appellant does not point to, and our

review of the record does not demonstrate that, the trial court ever

prohibited Appellee from testifying that he saw saliva on the photographs.

(See N.T. Trial, 6/21/13, at 3-32). Rather, the trial court ruled that while

Appellee could testify as to his observations of Appellant’s teeth from the

photographs, he could not testify about whether there was a causal link

between the condition of her teeth and her alleged loss of her senses of

taste and smell. (See id. at 32; Trial Ct. Op., at 13-14).

      This Court has stated:

             A lay witness may express an opinion if it is based upon
      his own perceptions and helpful to a clear understanding of his
      testimony or the determination of a fact in issue. Although the
      admission of an opinion on an ultimate issue of fact does not
      constitute error per se, . . . if its admission would confuse,
      mislead, or prejudice the jury, it should be excluded. In order
      for a ruling on evidence to constitute reversible error, it must be
      shown not only to have been erroneous, but harmful to the party
      complaining.    The appellant must prove the court erred in
      admitting the challenged evidence and that the appellant was
      unduly prejudiced thereby.

                  The decision whether testimony constitutes
            fact or opinion may be difficult, for there is no litmus
            test for fact versus opinion. Often testimony that
            might be classified as opinion is nevertheless
            admitted almost as a matter of course. Statements
            such as “it made an awful racket,” “the weather was

                                     - 12 -
J-A24041-14


            miserable”, “he looked drunk”, are in a sense all
            opinions, but a little attention to our every day way
            of speaking will show that they are more accurately
            classified as shorthand, or compendious, statements
            of fact, based on personal observation. . . . In such
            cases the experienced trial judge will admit the
            statement.

            Nevertheless, [p]ersonal knowledge remains a prerequisite
      to the admissibility of an expression of lay opinion.

McManamon v. Washko, 906 A.2d 1259, 1276 (Pa. Super. 2006), appeal

denied, 921 A.2d 497 (Pa. 2007) (citations and some quotation marks

omitted).

      Here, it is questionable that Appellee’s testimony even constituted

opinion testimony, as it was more in the line of statements of facts based

upon his personal observations of the photographs.          (See N.T. Trial,

6/21/13, at 40-52). In any event, even if we were to find that Appellee’s

testimony constituted opinion testimony, Appellant does not dispute, (see

Appellant’s Brief,   at 22-25), that    it was within    Appellee’s personal

knowledge, as a dentist with over twenty-five years’ experience, (see N.T.

Trial, 6/21/13, at 36), to opine on photographs of his patient’s dentition. We

see nothing in Appellee’s testimony that constituted impermissible opinion

testimony. See McManamon, supra at 1276.

      Moreover, Appellant has not demonstrated, beyond a bald statement,

that the admission of this testimony prejudiced her, (see Appellant’s Brief,

at 25), because Appellee never testified that the presence of saliva had any

relationship to Appellant’s claims of injury. This Court has held that where

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an Appellant fails to explain in what way the testimony was prejudicial or

provide argument as to prejudice, this Court cannot find that the evidence

was unduly prejudicial.       See Smith v. Morrison, 47 A.3d 131, 137 (Pa.

Super. 2012), appeal denied, 57 A.3d 71 (Pa. 2012) (where appellant made

only bald statements of prejudice “we cannot find that the evidence was so

prejudicial as to divert the jury’s attention away from its duty of weighing

the evidence impartially.”). Thus, because Appellant has not shown that the

trial court abused its discretion in admitting Appellee’s testimony, her claim

must fail.4 Id.

       In her third claim, Appellant avers that the trial court erred in denying

her pre-trial motion in limine to exclude the testimony of Dr. Harry A.

Milman, due to the late production of his expert report.5 (See Appellant’s

Brief, at 25-29). We disagree.

____________________________________________


4
  Appellant’s reliance on Kurian ex rel. Kurian v. Anisman, 851 A.2d 152
(Pa. Super. 2004), is misplaced. (See Appellant’s Brief, at 24). The issue in
Kurian was whether, in a medical malpractice action, the trial court could
admit the report of a treating physician as an expert report where the
plaintiff had not identified that physician during discovery and the plaintiff
produced his report for first time in opposition to a motion for summary
judgment. See Kurian, supra at 155-62. We see nothing in Kurian that is
helpful to Appellant.
5
  In her brief, Appellant also appears to contend that Dr. Milman should not
have been allowed to testify as an expert because he was not a medical
doctor and/or that he was wrongly permitted to testify beyond the scope of
his expert report. (See Appellant’s Brief, at 28-29). Appellant has waived
this claim as it was neither raised in Appellant’s 1925(b) statement nor in
her statement of questions. (See Concise Statement of Errors Complained
(Footnote Continued Next Page)


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                  Generally, a trial court's decision to grant or deny a
      motion in limine is

                   subject to an evidentiary abuse of discretion
             standard of review. The term discretion imports the
             exercise of judgment, wisdom and skill so as to
             reach a dispassionate conclusion, within the
             framework of the law, and is not exercised for the
             purpose of giving effect to the will of the judge.
             Discretion must be exercised on the foundation of
             reason,    as    opposed    to    prejudice,  personal
             motivations, caprice or arbitrary actions. Discretion
             is abused when the course pursued represents not
             merely an error of judgment, but where the
             judgment is manifestly unreasonable or where the
             law is not applied or where the record shows that the
             action is a result of partiality, prejudice, bias or ill
             will.

Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 802-03

(Pa. Super. 2013) (citation omitted).

      Appellant claims that Appellee did not furnish Dr. Milman’s expert

report until April 2013, well after the February 20, 2013 deadline.        (See

Appellant’s Brief, at 26). Appellant alleges that this late disclosure severely
                       _______________________
(Footnote Continued)

of on Appeal, 3/10/14, at unnumbered page 1; Appellant’s Brief, at 5). As
amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides
that issues that are not included in the Rule 1925(b) statement or raised in
accordance with Rule 1925(b)(4) are waived.                  See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998), superseded by rule on other grounds as stated in Commonwealth v.
Burton, 973 A.2d 428, 431 (Pa. Super. 2009) (en banc). Further, new legal
theories cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Lastly, issues not explicitly raised in the
statement of questions involved or fairly suggested thereby are waived. See
Nolt v. TS Calkins & Assoc., LP., 96 A.3d 1042, 1047 n.4 (Pa. Super.
2014); Pa.R.A.P. 2116(a).



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prejudiced her. (See id. at 27). Appellant acknowledges that she agreed to

an extension of time for expert reports but contends that this was to allow

an IME of her, not to allow Appellee to produce the report of a non-physician

toxicologist/pharmacologist, which added a new theory of defense.             (See

id.).

        The Pennsylvania Rules of Civil Procedure govern expert testimony

discovery.    See Pa.R.C.P. 4003.5. Under Rule 4003.5, a trial court may

sanction a party for failing to identify an expert by excluding his or her

testimony.     See Pa.R.C.P. 4003.5(a)(4)(b).         However, we have held that

“preclusion of testimony is a drastic sanction, and it should be done only

where the facts of the case make it necessary; the prejudice may not be

assumed.”      Kurian, supra at 162 (citation omitted).           “The court must

balance the facts and circumstances of each case to determine the prejudice

to each party.       In practice, sanctions for noncompliance with discovery

requests are generally not imposed until there has been a refusal to comply

with a court order compelling compliance.” Green Const. Co. v. Dept. of

Transp., 643 A.2d 1129, 1139 (Pa. Cmwlth. 1994), appeal denied, 672 A.2d

311 (Pa. 1996) (citations omitted).6           We look to four factors to determine

whether expert testimony should be excluded:

____________________________________________


6
  While decisions of the Commonwealth Court are not binding on us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011).



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      (1) the extent of any actual prejudice or surprise suffered by the
      party against whom the expert testified; (2) the ability of that
      party to cure the prejudice or surprise; (3) the extent to which
      allowance of the testimony disrupted the orderly and efficient
      trial of the case or of other cases in the court; and (4) the bad
      faith or willfulness of the party that has failed to comply with the
      order.

Neal by Neal v. Lu, 530 A.2d 103, 109 (Pa. Super. 1987) (citations and

quotation marks omitted).

      Here, the trial court explained its decision as follows:

             Dr. [Harvey] Millman’s expert report was produced to
      [Appellant’s] counsel on April 11, 2013, more than two months
      prior to the trial date. Both parties had already agreed to extend
      the timeline of expert reports for [Appellee] to produce a report
      from an otolaryngologist. [Appellant] argues that the production
      of Dr. Millman’s report was a bait and switch performed by
      [Appellee]. There is no evidence of bad faith on the part of
      [Appellee]. Further, there was little evidence of any surprise
      suffered by [Appellant], as she had more than two months to
      review Dr. Millman’s findings before the trial started. This late
      identification did not disrupt the orderly and efficient trial of the
      case.

(Trial Ct. Op., at 12) (quotation marks and footnotes omitted). We agree.

We note that despite Appellant’s claims of unfair surprise and prejudice,

there is no evidence of record that she sought a continuance in order to

obtain additional expert reports. Further, it is evident that Appellant knew

that toxicology would be an issue in the matter, as she had already obtained

an expert toxicologist to testify on her behalf. (See Appellant’s Brief, at 26

(noting that she had furnished expert toxicology reports to Appellee in

2012)). Thus, Appellant has not demonstrated she suffered prejudice that

would mandate the extreme sanction of preclusion of expert testimony. See

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Green, supra at 1138-39 (plaintiff did not demonstrate sufficient prejudice

to mandate sanction of exclusion of expert testimony where it was not

disclosed until five days prior to trial).    Because Appellant has not shown

that the trial court abused its discretion in denying her motion in limine, her

claim must fail.

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

precluding her from making references to a medical evaluation performed on

behalf of Appellee by Dr. Kenneth Briskin. (See Appellant’s Brief, at 30-31).

We disagree. As discussed above, we review a trial court’s evidentiary ruling

for an abuse of discretion or a misapplication of law, and Appellant must

demonstrate prejudice for any mistake to constitute reversible error.     See

Stumpf, supra at 1035-36.

      Appellant argues that she was prejudiced by the failure of Appellee to

comply with Pennsylvania Rule of Civil Procedure 4010(b)(1) and provide her

with a copy of Dr. Briskin’s expert report. (See Appellant’s Brief, at 30-31).

However, Appellant waived this argument, as she never argued below that

Appellee failed to comply with Pa.R.C.P. 4010(b)(1) or that she was

prejudiced by the lack of an expert report.         (See N.T. Motion Hearing,

6/18/13, at 3-32). New legal theories cannot be raised for the first time on

appeal.   See Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super.

2012) (en banc), appeal denied, 57 A.3d 70 (Pa. 2012); Pa.R.A.P. 302(a).

Accordingly, we find that Appellant has waived this issue for our review.


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Further, Appellant’s boilerplate language combined with a two-sentence

argument that the trial court’s decision not to allow any mention of Dr.

Briskin prejudiced her is completely undeveloped. (See Appellant’s Brief, at

30-31).    It is long-settled that failure to argue and to cite any authority

supporting the argument constitutes a waiver of the issue on appeal. See

Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005); see also Pa.R.A.P.

2119(a), (b).    Accordingly, Appellant waived her claim for this reason as

well.

        Moreover, under Pennsylvania law, a party is not entitled to draw an

adverse inference from the absence of a witness if that witness is within the

reach and knowledge of both parties. See Oxford Presbyterian Church v.

Weil-McLain Co., Inc., 815 A.2d 1094, 1102-03 (Pa. Super. 2003) (party

entitled to draw adverse inference from failure to call witness, where witness

is only available to one of parties, and it appears witness has special

information    material   to   issue,   and   testimony   would   not   be   merely

cumulative). Here, the record reflects that the parties agreed to the IME by

Dr. Briskin; Dr. Briskin did not issue an expert report, but both counsel had

copies of his findings; and his testimony was cumulative of that of

Appellant’s experts, namely that Appellant’s problems were not caused by

any structural deformity to her nose or mouth. (See N.T. Motion Hearing,

6/18/13, at 4-6; 8). Thus, because Appellant failed to show she was entitled




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to draw any adverse inference from Appellee’s failure to call Dr. Briskin to

testify, her issue lacks merit. See Oxford, supra at 1102-03.

     For the reasons discussed above, Appellant’s claims lack merit.

Therefore, we affirm the judgment.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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