J-A25015-19


                             2020 PA Super 106

FRANCISCO ROLON, ADMINISTRATOR                   IN THE SUPERIOR COURT
OF THE ESTATE OF MARIA SANCHEZ-                     OF PENNSYLVANIA
RODRIGUEZ

                         Appellant

                    v.

TRYSTAN H. DAVIES, M.D., LANCASTER
EMERGENCY ASSOCIATES, LTD.,
MATTHEW C. WIGGINS, M.D.,
LANCASTER RADIOLOGY ASSOCIATES,
LTD., JOSEPH F. VOYSTOCK, M.D.,
SURGICAL SPECIALISTS OF
LANCASTER, P.C. AND LANCASTER
GENERAL HOSPITAL

                         Appellees                 No. 2046 MDA 2018


          Appeal from the Judgment Entered November 13, 2018
            In the Court of Common Pleas of Lancaster County
                     Civil Division at No: CI-12-04424


BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                            FILED APRIL 28, 2020

     Appellant, Francisco Rolon, as administrator of the estate of Maria

Sanchez-Rodriguez, appeals from the November 13, 2018 judgment entered

in favor of Appellees, Trystan H. Davies, M.D., Lancaster Emergency

Associates, LTD., Matthew C. Wiggins, M.D., Lancaster Radiology Associates,

Ltd., Joseph F. Voystock, M.D., Surgical Specialists of Lancaster, P.C. and

Lancaster General Hospital. We affirm in part, vacate in part, and remand.
J-A25015-19


       On April 30, 2010, Dr. Voystock, of Appellee Surgical Specialists of

Lancaster,   performed      a    hemicolectomy    on    Maria   Sanchez-Rodriguez

(“Decedent”)   at   Appellee      Lancaster   General   Hospital   (“LGH”).    The

hemicolectomy was an emergency surgery to address a bowel perforation that

occurred during a routine colonoscopy. On May 19, 2010, Decedent went to

the LGH emergency room (“ER”) complaining of pain in her right lower back,

right hip, and right leg.       The leg was swollen and blue.      Appellee Trystan

Davies, M.D., of Appellee Lancaster Emergency Associates, Ltd., examined

Decedent in the ER. Dr. Davies noted that Decedent’s right leg was colder

and had a weaker pulse than the left. Dr. Davies ordered an ultrasound to

check for a blood clot, i.e. deep vein thrombosis (“DVT”), in Decedent’s lower

leg.   Appellee Matthew Wiggins, M.D., of Appellee Lancaster Radiology

Associates, Ltd. interpreted the results of the ultrasound to reveal no DVT in

the lower right leg, but slow blood flow in some of the veins. He recommended

further testing.

       Dr. Davies requested a consultation from Dr. Voystock to determine

whether an arterial problem was causing Decedent’s symptoms. Dr. Voystock

ordered an arterial study, and it revealed no evidence of arterial blockage.

The negative arterial study, combined with the improvement in Decedent’s

symptoms during the hours she spent in bed in the hospital, led to her

discharge. Within one hour of discharge, Decedent collapsed in the elevator

of her apartment building and was returned to the ER via ambulance.             ER


                                        -2-
J-A25015-19


personnel were unable to revive her. An autopsy revealed Decedent, age 61,

died from a pulmonary embolism.

       Appellant filed this medical malpractice action on March 29, 2012,

alleging that Appellees’ negligence led to the death of his wife, Maria Sanchez-

Rodriguez. A jury trial commenced on October 15, 2018. Appellant presented

David R. Campbell, M.D. as an expert witness on Dr. Voystock’s alleged

negligence. At the close of Appellant’s case, Dr. Voystock and his practice,

Surgical Specialists of Lancaster, P.C., moved for a nonsuit, claiming Campbell

did not offer his opinion to a reasonable degree of medical certainty in accord

with Pennsylvania law.        The trial court granted Dr. Voystock’s motion on

October 19, 2018. On October 22, 2018, the jury returned defense verdicts

in favor of the other Appellees. The trial court denied Appellant’s timely post-

trial motion to remove the nonsuit, and judgment was entered on November

13, 2018. This timely appeal followed. Appellant presents two questions:

       1. Whether the trial court erred in granting nonsuit in favor of [Dr.
          Voystock] and denying [Appellant’s] post-trial motion to
          remove nonsuit and for a new trial where [Appellant’s] expert
          testimony was rendered to the requisite degree of medical
          certainty?

       2. Whether the trial court erred in granting nonsuit in favor of [Dr.
          Voystock] and denying [Appellant’s] post-trial motion to
          remove nonsuit and for a new trial where [Appellant] presented
          a prima facie case against [Dr. Voystock]?

Appellant’s Brief at 5.1

____________________________________________


1  Appellant preserved these issues in a nunc pro tunc Pa.R.A.P. 1925(b)
statement filed with the trial court’s permission.

                                           -3-
J-A25015-19


       The applicable standard of review is as follows:

              In reviewing the entry of a nonsuit, our standard of review
       is well-established: we reverse only if, after giving appellant the
       benefit of all reasonable inferences of fact, we find that the
       factfinder could not reasonably conclude that the essential
       elements of the cause of action were established. Indeed, [w]hen
       a nonsuit is entered, the lack of evidence to sustain the action
       must be so clear that it admits no room for fair and reasonable
       disagreement.... The fact-finder, however, cannot be permitted to
       reach a decision on the basis of speculation or conjecture.

Vicari v. Spiegel, 936 A.2d 503, 509 (Pa. Super. 2007) (internal citations

and quotation marks omitted), affirmed, 989 A.2d 1277 (Pa. 2010).2

       Medical malpractice is a form of negligence. Griffin v. University of

Pittsburgh Med. Ctr.-Braddock Hosp., 950 A.2d 996, 999 (Pa. Super.

2008), appeal denied, 970 A.2d 431 (Pa. 2009). To make a prima facie case

a plaintiff must establish that the physician owed the plaintiff a duty and

breached it; that the breach was the proximate cause of the plaintiff’s harm;

and that the alleged damages were a direct result of the harm. Id. at 999-

1000 (quoting Quinby v. Plumsteadville Fam. Practice, Inc., 907 A.2d

1061, 1070-71 (Pa. 2006)).           The plaintiff must present expert testimony

“where the circumstances surrounding the malpractice claim are beyond the

knowledge of the average layperson.” Id. at 1000 (quoting Vogelsberger v.

Magee-Womens Hosp. of UPMC Health Sys., 903 A.2d 540, 563 n.11 (Pa.

Super. 2006), appeal denied, 917 A.2d 315 (Pa. 2007)).


____________________________________________


2  Our Supreme Court in Vicari addressed expert qualifications, a matter not
at issue here.

                                           -4-
J-A25015-19


     An expert must testify, to a reasonable degree of medical certainty, that

the defendant physician deviated from acceptable standards, and that the

deviation was the proximate cause of the plaintiff’s harm. Vicari, 936 A.2d

at 510. Further, “a medical opinion need only demonstrate, with a reasonable

degree of medical certainty, that a defendant’s conduct increased the risk of

the harm actually sustained, and the jury then must decide whether that

conduct was a substantial factor in bringing about the harm.” Id. (quoting

Smith v. Grab, 705 A.2d 894, 899 (Pa. Super. 1997)).

            In determining whether the expert’s opinion is rendered to
     the requisite degree of certainty, we examine the expert’s
     testimony in its entirety. That an expert may have used less
     definite language does not render his entire opinion speculative if
     at some time during his testimony he expressed his opinion with
     reasonable certainty. Accordingly, an expert’s opinion will not be
     deemed deficient merely because he or she failed to expressly use
     the specific words, ‘reasonable degree of medical certainty.’
     See Commonwealth v. Spotz,[…] 756 A.2d 1139 (Pa. 2000)
     (indicating that ‘[i]n this jurisdiction, experts are not required to
     use ‘magic words’’ but, rather, ‘this Court must look to the
     substance of [the expert’s] testimony to determine whether his
     opinions were based on a reasonable degree of medical certainty
     rather than upon mere speculation’). Nevertheless, [a]n expert
     fails this standard of certainty if he testifies that the alleged cause
     ‘possibly’, or ‘could have’ led to the result, that it ‘could very
     properly account’ for the result, or even that it was ‘very highly
     probable’ that it caused the result.

Id. at 510-11 (some internal citations and quotation marks omitted).

     In Vicari, the expert’s opinion did not include the words “reasonable

degree of medical certainty.” Id. at 508. Notwithstanding that omission, this

Court concluded that the expert’s testimony, viewed in its entirety, met the

requisite standard. Id. at 511. The expert “rendered an opinion that the risk

                                      -5-
J-A25015-19


of harm was increased by the defendant’s failure to refer [the plaintiff] to a

medical oncologist for chemotherapy following her surgery[.]” Id. The expert

testified   that   there   was   “‘very   great’   potential   for   recurrence   and

metastasis[;]” that the plaintiff “absolutely” should have been referred to an

oncologist; and that the plaintiff “was deprived of a significant opportunity for

treatment which significantly increased the risk to her of local regional

occurrence of metastasis[.]” Id. It was impossible to determine whether and

to what extent chemotherapy would have prolonged the plaintiff’s life, and in

that context the expert used the word, “may.” Id. at 512. Nonetheless, the

testimony, considered in its entirety, was sufficient to permit the case to go

to the jury. Id.

      In Griffin, the plaintiff underwent bowel surgery and began to

experience pain in her shoulder after the surgery. Griffin, 950 A.2d at 998.

Her shoulder required several surgeries to repair a fracture and dislocation.

Id.   She filed a malpractice action alleging that the injury to her shoulder

would not have occurred in the absence of negligence on the part of the

hospital and its personnel. Id. The plaintiff’s expert testified that her injury

was either the result of forcible restraint because she became combative, or

a grand mal seizure. Id. He assigned a 51% probability to the former and a

49% probability to the latter:      “I think that from a reasonable degree of

medical certainty, that is choosing one or the other, a fifty-one to forty-nine

percent consideration, I think that the least implausible consideration


                                          -6-
J-A25015-19


would be […] her shoulder was injured in attempts to be restrained because

she was resisting that.” Id. at 1002 (emphasis in original). The plaintiff had

no recollection of the circumstances of her injury. Id. A jury awarded her

more than $2 million and the defendant hospital appealed. Id. at 998. This

Court concluded the expert’s opinion was insufficient, despite his use of the

words “reasonable degree of medical certainty.” Id. at 1003-04. A 51% to

49% probability of forcible restraint as compared to a seizure did not “equate

to an opinion stating to a reasonable degree of medical certainty the negligent

forcible restraint caused [the plaintiff’s] injury.” Id. We therefore remanded

for entry of judgment in the hospital’s favor.

      Similarly, in Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d

1022 (Pa. Super. 2001), the expert testified that, “more likely than not in my

opinion [defendant] deviated from the standard of care.” Id. at 1031. The

expert also said, “more likely than not [the decedent] would have responded

to [timely] treatment.”   Id.   This Court affirmed the trial court’s entry of

nonsuit. Id.

      Instantly, Dr. Campbell testified that DVT is common in patients who

are immobile after surgery. N.T. 10/17/18, at 165. He also testified that a

lung or heart problem would cause symptoms in both legs, whereas Decedent

had symptoms in only one. Id. at 164. Since Decedent underwent surgery

less than three weeks before returning to the ER, since she had symptoms in

only one leg, and since and ultrasound revealed no DVT in her lower leg but


                                     -7-
J-A25015-19


pointed to a problem higher up, Dr. Campbell opined that Dr. Voystock should

have checked for a problem higher up. Id. at 166-67. Dr. Campbell testified

that an isolated clot in the pelvic area is rare but much more likely to cause

death than a clot lower down. Id. at 201-02. Dr. Campbell opined that the

ultrasound of Decedent’s lower leg pointed to a problem in the pelvic region,

and under these circumstances Dr. Voystock “had to” rule out a pelvic clot.

Id. at 213. Further, Dr. Campbell testified that Dr. Voystock’s diagnosis did

not explain Decedent’s symptoms. Id. at 172. Dr. Voystock’s diagnosis would

have explained blue discoloration in Decedent’s toes, but not her whole leg.

Id. A dose of Heparin and anticoagulant would have significantly lessened the

chance that Decedent would die from a pulmonary embolism. Id. at 178-79.

Furthermore, because symptoms of DVT improve with bedrest, Decedent’s

improvement during her time in the ER did not support the conclusion that

she was ready for discharge. Id. at 171.

      Having summarized the substance of Dr. Campbell’s testimony, we now

examine the passages that led the trial court to find that Dr. Campbell failed

to offer an opinion to a reasonable degree of medical certainty. Dr. Campbell

works in Boston, and he explained that he is accustomed to offering his

opinions as “more likely than not,” which is the Massachusetts standard. Id.

at 210-11.    He also testified that “more likely than not” and “reasonable

degree of medical certainty” mean the same thing to him. Id. at 211.




                                    -8-
J-A25015-19


       On direct examination,3 Dr. Campbell testified as follows:

             Q.    Okay. Doctor, based on your review of the records
       and the deposition of Dr. Voystock and the other depositions in
       this case, did you come to an opinion to within a reasonable
       degree of medical certainty as to whether or not Dr. Voystock
       violated the standard of care in his care and treatment of this
       patient?

              A.     I did.

              Q.     And what was your opinion?

              A.     That he did.

              Q.     And why was that?

             A.    Because I felt the diagnosis of likely DVT with
       attendant consequences of a pulmonary embolism was so
       apparent that I would have expected a medical student to make
       that diagnosis and the consequence of failing to make it can be
       extreme. So I think the – I think it’s required that one – one
       follow through on that.

Id. at 176-77.

       Dr. Campbell also addressed the consequences of failing to do a follow

up study of the Decedent’s pelvic area:

             Q.    Doctor, do you have an opinion to within a reasonable
       degree of medical certainty as to whether or not the failure to
       follow up and get the necessary study as you indicated increased



____________________________________________


3 The pertinent transcripts do not appear in the certified record, but Appellant
has included them in the reproduced record. Their accuracy is not in dispute.
Appellant is obligated, under Pa.R.A.P. 1921, to supply this Court with a
complete certified record. In these circumstances, however, we will not deem
Appellant’s argument waived.        See Washburn v. Northern Health
Facilities, Inc., 121 A.3d 1008, 1014 n.2 (Pa. Super. 2015) (declining to find
waiver where a pertinent transcript, whose accuracy was undisputed, was
included in the reproduced record but not the certified record).

                                           -9-
J-A25015-19


      the risk of harm and was a substantial factor in the patient’s
      ultimate death?

            A.    I do.

            Q.    And what is your opinion?

            A.     Well, my opinion is that if the diagnosis of DVT had
      been made, and the large dose of Heparin given right away, even
      if the patient had thrown that pulmonary emboli while in the
      hospital, the risk of mortality would have been significantly less.
      So I think it was the factor that led to the death.

             Q.    And what would, in fact, be the course of treatment
      for a patient like this if DVT in the pelvis was found?

           A.    You would have given them a large dose of Heparin
      and anticoagulant.

            Q.   And would that – what is the likelihood then that the
      patient would survive with this clot at that point in time?

             A.   You – you can – you can’t say with absolute certainty,
      but you can say more likely than not, if it was treated, and the
      Heparin was on board, that the way an embolism causes death is
      it causes vasoconstriction of the pulmonary arteries when it lands
      and we know that it’s part of our treatment of the disease. The
      first thing you need to do is get some Heparin into them to
      vasodilate them. And if you can do that right away, the outcomes
      are better.

            So I think it’s more likely than not that she could have
      survived if she had had that treatment at that time.

            Q.    Even with the – with the thrombosis still present in
      the pelvis?

           A.    Oh, yes. If the thrombosis had broken off after she
      had started treatment, I think the outcome of death from a
      pulmonary emboli was much, much, much less likely.

Id. at 178-79. Thus, Dr. Campbell testified, in response to counsel’s question,

that he held his opinion to a reasonable degree of medical certainty. He also




                                    - 10 -
J-A25015-19


testified that, had Dr. Voystock adhered to the standard of care, Decedent’s

survival was more likely than not.

     Defense counsel explored Dr. Campbell’s degree of certainty on cross-

examination:

            Q.    As I understand your direct testimony, the symptoms
     in this patient’s right leg when she presented to the emergency
     department were related to an isolated pelvic clot?

           A.    They’re entirely consistent with that.

           Q.    Well, are they consistent with that or is that what
     you’re saying actually happened here?

           A.     Back to my comment that half of the patients with
     deep vein thrombosis with no symptoms and half with symptoms
     do not have deep vein thrombosis. So there’s no absolute
     certainty relating to symptoms to the diagnosis which is why you
     always have to think about it.

           Q.    So I just want to make sure I understand. Can you
     say with a reasonable degree of medical certainty that the
     patient[’]s presenting symptoms in the emergency department
     that day were related to an isolated pelvic clot?

           A.    They were entirely consistent with an isolated clot.

           Q.    But that’s not what I asked you. Can you say with a
     reasonable degree of medical certainty that the patient[’]s
     presenting symptoms in the ED were related to an isolated pelvic
     clot?

           A.    Well, I can say in this case they were.

                                      […]

           Q.    So now I just want to make sure I understand.
     Isolated pelvic DVTs happen in 1 percent of the cases. And now
     we have an isolated pelvic DVT, the symptoms of which the night
     before don’t go away when you lie in bed but miraculously the
     next day when you lie in bed they go away?



                                     - 11 -
J-A25015-19


            A.     I think I told you that half the patients have no
     symptoms and half the patients don’t. It’s a very difficult disease
     to pin symptoms by which is why if you have a suspicion you have
     to do a full evaluation otherwise patients will die from a pulmonary
     embolism.

Id. at 202, 208-09.      Thus, when defense counsel inquired about Dr.

Campbell’s degree of certainty based on Decedent’s symptoms, Dr. Campbell

responded that Decedent’s symptoms were “entirely consistent” with DVT. He

also testified that a patient’s observable symptoms are not a reliable way to

diagnose DVT.

     Appellant’s counsel pursued this issue on redirect:

          Q.     She presented to the hospital. You’ve read the
     medical records. You’ve read the deposition, reports, was her
     presentation consistent with a pelvic DVT?

           A.    Yes.

          Q.    And a pelvic DVT is one large enough that it could
     cause a death like this; is that correct?

            A.   Pelvic DVTs are much more likely to cause a death like
     this than DVTs involving the lower leg because it’s a bigger vein
     with a bigger clot. It has greater impact when it lands.

           Q.    And that’s because she had, among other things,
     swelling and pain; is that correct?

            A.    Well, that’s a symptom. She had the clot. And the
     symptoms depend upon how – how – how much exercise she’s
     doing and so forth. Back to that difficulty of relating symptoms
     directly to – to the amount of – to what’s happening. Half the
     time you’re right and half the time you’re not. But this is a classic
     case. Postoperatively you need to take it seriously at that time
     when they visit.

           Q.    And there was a subsequent noninvasive ultrasound,
     correct?



                                    - 12 -
J-A25015-19


            A.    Correct.

            Q.   And that pointed to the fact that there was some sort
      of blockage or some sort of obstruction in the pelvic region that
      we already talked about?

            A.    Correct.

            Q.    And that blockage or that obstruction of the pelvic
      region in your opinion was due to what?

            A.     It was due to deep vein thrombosis. Yeah. And you
      had to rule it out. I would add that the symptoms of a large
      swollen leg could really only have come from iliac deep vein
      thrombosis because a lower DVT would not have caused the whole
      leg to swell up in that probability.

            Q.   And so because you have that presentation the next
      step that must be done is proper testing in order to see whether
      or not a DVT is in that area?

            A.     Yes. You at least have to look at the noninvasive to
      look at the phasic, loss of respiratory variation, and that was –
      wasn’t – it caused the radiologist to say, you’ve got to do further
      tests and that – and that’s exactly what you should have done in
      that case.

Id. at 212-14.

      Also on redirect, Appellant’s counsel examined Dr. Campbell on his

degree of certainty in his opinions:

            Q.   And [defense counsel] also went over with you this
      issue of reasonable degree of medical certainty versus more
      probable than not. When you say that those are the same to you,
      do you mean that those are the same sort of –

            [Defense counsel]: Objection, Your Honor. This is leading.

            THE COURT: Sustained.

            Q.    What do you mean by that?




                                       - 13 -
J-A25015-19


             A.  Oh, so if I think this is very likely to be the case, I use
      that term because that’s what my lawyers tell me I’m supposed
      to do.

            Q.    Okay. And in – her in Pennsylvania, reasonable
      degree of medical certainty, do you feel comfortable with your
      opinions rendering them to within a reasonable degree of medical
      certainty?

            A.    I’m very comfortable rendering my opinions. I don’t
      personally know the definition of reasonable degree of medical
      certainty, but I’m quite certain my opinions are correct.

            Q.    You’re quite certain about your own opinions?

            A.    Yes.

           Q.   And you are certain about these opinions that
      you’ve rendered in this case?

            A.    I am, indeed.

Id. at 217-18 (emphasis added).

      The instant circumstances are very similar to those of Vicari. As we

explained above, the expert in that case testified that the defendant’s failure

to refer the decedent to a medical oncologist deprived the decedent of an

opportunity for treatment and increased the risk of a recurrence of cancer.

Vicari, 936 A.2d at 511-12. The expert used conditional language in places

because it was impossible to state with certainty that the chemotherapy would

have worked and prolonged the decedent’s life. Id. at 512. Similarly, in the

instant case, the import of Dr. Campbell’s testimony is that Dr. Voystock

breached the standard of care by failing to diagnose DVT and treat Decedent

accordingly. He stated he was certain of his opinion, and he explained that

the ultrasound of Decedent’s lower leg evidenced a blockage higher up. The

                                     - 14 -
J-A25015-19


ultrasound results, in tandem with Decedent’s recent surgery, led Dr.

Campbell to opine that a pelvic DVT, despite its rarity, had to be ruled out in

this case. Thus, not only did Dr. Campbell express his certainty as to his

opinion, he provided a thorough explanation of how he arrived at that opinion

given the evidence before him. Dr. Campbell also explained why the evidence

did not support Dr. Voystock’s diagnosis.

      Dr. Campbell used conditional language when discussing the possibility

that Heparin and an anticoagulant would have helped. He said it was “more

likely than not” that she would have survived had she been treated, and in his

very next answer said death was “much, much, much less likely” had she been

treated. N.T. 10/17/18, at 179. Conditional language was necessary because,

as Dr. Campbell acknowledged, it was impossible to state with absolute

certainty that treatment would have worked. Id.

      Here, as in Vicari, the expert testimony evidenced a breach of the

applicable standard of care that increased the risk of harm to the decedent.

Dr. Campbell expressed his opinion with certainty and gave a detailed analysis

of the facts that he believed supported his opinion.       Under Vicari, Dr.

Campbell’s testimony was more than sufficient to create a jury issue. The trial

court erred denying Appellant’s motion to remove the nonsuit.

      To avoid this result, Appellees rely on various statements that, taken in

isolation, could support a conclusion that Dr. Campbell was not sufficiently

certain of his opinion.   Appellees cite Dr. Campbell’s statement that he


                                    - 15 -
J-A25015-19


discerns no difference between Pennsylvania’s “reasonable degree of medical

certainty” standard and Massachusetts’ “more likely than not” standard as

evidence that he was not sufficiently certain of his opinion. N.T. 10/17/18, at

211. We disagree. Dr. Campbell acknowledged that he uses the legal phasing

a lawyer requests. Id. at 217. Thus, “in medicolegal terms in Massachusetts,

you have to say more likely than not and that’s what we do and it becomes a

habit.     When you’re making a statement, I really think this is what

happened here, I say more likely than not.” Id. at 211 (emphasis added).

In Pennsylvania, he used “reasonable degree of medical certainty.” Id. at

217-218. Regardless of the legal terminology, Dr. Campbell was certain of

his opinion. Id. at 218.

         Appellees also criticize Dr. Campbell for stating, on cross examination,

that Decedent’s symptoms were “entirely consistent” with a pelvic DVT. Citing

Vicari, in which this Court explained that words and phrases such as

“possibly,” “could have,” “could very properly account,” and “very highly

probable” do not meet the standard (Vicari, 936 A.2d at 511), they argue

that “entirely consistent” is similarly insufficient. Once again, Appellees invite

this Court to consider an isolated statement rather than the entirety of the

testimony. Dr. Campbell explained that DVT is difficult to diagnose based on

observable symptoms. N.T. 10/17/18, at 209. Some patients with symptoms

consistent with DVT do not have it; others with no symptoms have it. Id. But

Decedent’s observable symptoms were only one piece of evidence that Dr.


                                       - 16 -
J-A25015-19


Campbell considered. In addition to the symptoms, Decedent’s recent surgery

and the ultrasound results led Dr. Campbell to opine that Dr. Voystock should

have done further testing to check for a pelvic DVT. Thus, in using the words

“entirely consistent,” Dr. Campbell said as much as he accurately could have

said about Decedent’s observable symptoms.

      For all of the foregoing reasons, we conclude Dr. Campbell rendered his

testimony to a reasonable degree of medical certainty. The trial court erred

in entering nonsuit in favor of Dr. Voystock and his practice, Surgical

Specialists of Lancaster, P.C.

      Next, we consider Appellant’s argument that he is entitled to a new trial

against all Appellees rather than a new trial limited to Dr. Voystock and his

practice, Surgical Specialists of Lancaster, P.C., the successful nonsuit

movants.    Prior to this brief to this Court, Appellant never addressed the

parties against whom he sought a new trial.          His post-trial motion and

Pa.R.A.P. 1925(b) statement are silent on the issue. Likewise, his questions

presented do not specifically raise this question.

      Appellant relies on Eck v. Powermatic Houdaille, 527 A.2d 1012,

1021 (Pa. Super. 1987), in which this Court wrote, “It is the normal practice

in granting a new trial to grant it generally against all parties on all issues.”

Assuming without deciding that a motion for new trial presumptively requests

a new trial against all defendants, we find no merit in Appellant’s argument.

Eck was a strict products liability case involving an arbor saw whose guard


                                     - 17 -
J-A25015-19


had been removed by the end user. The injured plaintiff sued the product’s

manufacturer and distributor. The jury entered defense verdicts. Id. at 1016.

This Court held that the trial court gave an erroneous jury instruction on the

issue of substantial change to the product. Id. at 1014. In limited analysis

of the scope of the new trial, the Eck Court noted that the faulty instruction

could have affected the jury’s decision on defect and causation, as those issues

were inextricably interwoven in that case. Id. at 1021. The Eck Court did

not analyze the need for a new trial as to all defendants, and there is no

indication that any party to that case raised the issue.

      Appellant also cites Westinghouse Elevator Co. v. Herron, 523 A.2d

723 (Pa. 1987), in which the plaintiff, injured in an elevator, sued the building

owner, the elevator manufacturer, and the elevator maintenance contractor.

The   original   defendants   joined    the     building   manager,   the   building

maintenance contractor, and the former elevator maintenance contractor. Id.

at 724. Each defendant’s strategy was, in part, to blame some or all of the

others. Id. at 725. Counsel for Westinghouse took ill during trial, and, after

several continuances, the trial court ordered Westinghouse to continue with

substitute counsel. Id. Defendants moved for a new trial after plaintiff won

a verdict of nearly $2 million. Id. The trial court granted a new trial and this

Court reversed. Id. Our Supreme Court concluded that Westinghouse was

prejudiced by the loss of its counsel during a very complicated case. Id. at

726-728. In the final paragraph of its opinion, the Supreme Court wrote:


                                       - 18 -
J-A25015-19


             It remains, finally, to determine whether the new trial in this
      case should be conducted with respect to all parties, or only with
      respect to those parties who were not exonerated in the first trial.
      Without relying on any general rule of law as to when retrial must
      involve all parties, we agree with the trial court that this particular
      case requires a retrial as to all parties because the denial of
      adequate legal representation to Westinghouse precluded it not
      only from presenting an effective defense to the claims of the
      plaintiff, but also from effectively asserting that its co-defendants
      were responsible for plaintiff's injuries.

Id. at 728. Westinghouse is easily distinguishable from the case before us.

First, it was an appeal from a plaintiff’s verdict. Second, one defendant lost

its counsel mid-trial in a complicated case where each of the many defendants

was blaming the others. A retrial against a single defendant might have been

prejudicial to that defendant. The Westinghouse Court expressly relied on

the circumstances before it, rather than any general rule of law, in granting a

new trial as to all defendants. The Westinghouse opinion does not support

a conclusion that a new trial is necessary against all defendants in all cases.

      More pertinent to the instant case is Meyer v. Heilman, 469 A.2d 1037

(Pa. 1983), in which the plaintiff sued a tractor’s owners in negligence and its

manufacturer in strict liability. Id. at 1039. The trial court entered a nonsuit

in favor of the manufacturer, and the owners won a defense verdict. Id. This

Court reversed the nonsuit and awarded plaintiff a new trial against all

defendants. Id. This Court reasoned that a new trial against all defendants

was necessary because the manufacturer claimed the owners were negligent

for removing a safety shield from the tractor.          Id. (quoting Meyer v.




                                      - 19 -
J-A25015-19


Heilman, 452 A.2d 1376, 1379 (Pa. Super. 1982).           Our Supreme Court

granted allowance of appeal as to that question and reversed. Id.

      The Supreme Court reasoned that the defendant owner was placed in

the disadvantageous position of defending on its own after the nonsuit against

the manufacturer. Id. at 1040. And yet, the owner won a defense verdict:

Id.

            [The plaintiffs’] claim against [the owner] was adjudicated
      on the merits. [The manufacturer’s] lack of input as to that claim
      was of its own making, since it took the affirmative step of moving
      for a compulsory non-suit at the first trial. Now that [the
      manufacturer] will be compelled to defend itself in a new trial, it
      has no right to proceed with its original co-defendants, who were
      exonerated at the first trial, as if the non-suit and subsequent
      adjudication as to these co-defendants had never occurred.

Id.

      Turning to the plaintiffs’ interest in retrying both defendants, the

Supreme Court noted that “the gist of [plaintiffs’ argument before this Court

is that they were improperly denied the benefit of [the manufacturer’s]

evidence as to the [owner’s] negligence.” Id. The Supreme Court rejected

that contention:

             Unless the question of liability is so evident that it can be
      ruled upon as a matter of law by the court, the evidence is for the
      jury’s consideration. If the jury finds one defendant negligent and
      exonerates another, the factual issue has been resolved. Absent
      reversible error ... the defendant who has been absolved from
      negligence should not be subjected to a new trial.

Id. (quoting Stokan v. Turnbull, 389 A.2d 90, 93 (Pa. 1978)) (italics added

in Meyer). The Meyer Court concluded that Stokan applied, even though



                                     - 20 -
J-A25015-19


the manufacturer won a nonsuit rather than a jury verdict. Id. The erroneous

entry of nonsuit required a new trial against all defendants only if that error

“casts serious doubt on the jury verdict” against the owners. Id. at 1041.

       The Meyer Court noted that Rule 2229(b)4 of the Pennsylvania Rules of

Civil Procedure permits a plaintiff to join two or more defendants but does not

create an absolute right to do so, inasmuch as the trial court has discretion to

sever a joint trial under Rule 213(b).5 Even in cases of joinder, the causes of

action against each defendant remain distinct and the jury will decide each

separately.    Id.   The Meyer Court concluded that the nonsuit against the



____________________________________________


4   Rule 2229(b) reads as follows:

             (b) A plaintiff may join as defendants persons against whom
       the plaintiff asserts any right to relief jointly, severally, separately
       or in the alternative, in respect of or arising out of the same
       transaction, occurrence, or series of transactions or occurrences if
       any common question of law or fact affecting the liabilities of all
       such persons will arise in the action.

Pa.R.C.P. No. 2229(b).

5   Rule 213(b) provides:

              (b) The court, in furtherance of convenience or to avoid
       prejudice, may, on its own motion or on motion of any party, order
       a separate trial of any cause of action, claim, or counterclaim, set-
       off, or cross-suit, or of any separate issue, or of any number of
       causes of action, claims, counterclaims, set-offs, cross-suits, or
       issues.

Pa.R.C.P. No. 213(b) (preempted as stated in Simmons v. Simpson House,
Inc., 259 F. Supp.3d 200 (E.D.Pa. 2017).



                                          - 21 -
J-A25015-19


manufacturer had no impact on the plaintiffs’ case against the owners. Id. at

1041.

        We believe Meyer controls the instant case. Here, as in Meyer, the

remaining defendants won defense verdicts.                  Also similar to Meyer,

Appellant’s March 29, 2012 complaint raised distinct claims against each

defendant. Appellant supported its causes of action against Dr. Davies (the

ER doctor), Dr. Wiggins (the radiologist), and their respective practices, with

different evidence and different expert witnesses.             Each doctor played a

different role in Decedent’s treatment.            Furthermore, Dr. Voystock and his

practice did not move for nonsuit until the close of Appellant’s evidence. 6 The

nonsuit therefore did not hinder Appellant’s ability to present his case to the

jury.   Here, as in Meyer, Appellant has failed to provide any persuasive

explanation why the erroneous nonsuit against Dr. Voystock and his practice

undermines the jury’s verdicts in favor of the remaining defendants.

        For all of these reasons, we will vacate the judgment in favor of Dr.

Voystock and Surgical Specialists of Lancaster, P.C. and award Appellant a

new trial against those parties only. We affirm the judgment in favor of all

other defendants.

        Judgment affirmed in part and vacated in part.              Case remanded.

Jurisdiction relinquished.


____________________________________________


6 We observe that Dr. Voystock and his practice, in their joint brief, do not
address the need for a new trial against all defendants.

                                          - 22 -
J-A25015-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/28/2020




                          - 23 -
