J. A19042/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

KENNETH LICHTENBERGER,          :                IN THE SUPERIOR COURT OF
                                :                      PENNSYLVANIA
                    Appellant   :
                                :
                v.              :
                                :
GEISINGER COMMUNITY MEDICAL     :
CENTER, GEISINGER HEALTH SYSTEM :
FOUNDATION, DEEPAK SINGH, M.D., :                    No. 142 MDA 2018
KAELY AIKMAN, PA-C AND          :
TODD ELLISON, PA-C              :


           Appeal from the Judgment Entered February 15, 2018,
            in the Court of Common Pleas of Lackawanna County
                      Civil Division at No. 16-CV-3362


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MARCH 27, 2019

      Kenneth Lichtenberger appeals from the February 15, 2018 judgment

entered in favor of Geisinger Community Medical Center (“GCMC”), Geisinger

Health   System    Foundation    (“Health   System”),   Deppak    Singh,    M.D.

(“Dr. Singh”), Kaeley Aikman, PA-C (“Aikman”), and Todd Ellison, PA-C

(“Ellison”) (collectively, “appellees”) and against appellant. We affirm.

      The trial court set forth the following:

            [Appellant] underwent Coronary Artery Bypass Graft
            (CABG) surgery on September 11, 2014. Part of the
            surgical procedure involved the harvesting of the
            greater saphenous vein in his left leg so that it could
            be used to facilitate bypassing the blockages
            discovered in his coronary artery. While the bypass
            portion of the procedure was accomplished without
J. A19042/18


            any complications, [appellant] filed suit alleging
            injuries caused as a result of the harvesting of his left
            greater saphenous vein. [Appellant] sued his cardiac
            surgeon, Deepak Singh, M.D., the two physician’s
            assistants who performed the saphenous vein
            harvest, Kaely Aikman, PA-C and Todd Ellison, PA-C,
            and      [GCMC],     where       his    surgery     was
            performed.[Footnote      1]     [Appellant’s]   Second
            Amended Complaint contained claims of negligence
            against the individual [appellees], vicarious liability
            against [GCMC] and corporate negligence against
            GCMC.[Footnote 2]

                  [Footnote 1] [Appellant] also named
                  [Health System] as a defendant, but
                  stipulated to the withdrawal of his claims
                  against that entity prior to trial.

                  [Footnote 2] We granted summary
                  judgment in favor of GCMC on the
                  corporate negligence claim on July 6,
                  2017.

            The case proceeded to a jury trial on July 10, 2017.
            On July 14, 2017, a jury returned a verdict finding no
            negligence on the part of any of [appellees].

            [Appellant] thereafter filed a Motion for New Trial
            pursuant to Pa.R.Civ.P. 227.1(a)(1) on July 24, 2017.
            [Appellees] responded on August 10, 2017. Oral
            argument was scheduled and held on October 17,
            2017.

Trial court opinion, 12/15/17 at 1-2.

      The record reflects that the trial court denied appellant’s motion for a

new trial on December 15, 2017. On January 16, 2018, appellant filed a notice

of appeal. On January 17, 2018, the trial court ordered appellant to file a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b). Appellant complied. The trial court then filed with this


                                        -2-
J. A19042/18

court a copy of its December 15, 2017 opinion which disposed of the issues

raised in appellant’s Rule 1925(b) statement.

      The record further reflects that on February 12, 2018, this court entered

an order directing appellant to praecipe the trial court prothonotary to enter

judgment and file with the prothonotary of this court, within 10 days, a

certified copy of the trial court docket reflecting the entry of judgment in order

to comply with Pa.R.A.P. 301, which sets forth the requirements for a final

appealable order. (Order of court, 2/12/18.) This court further ordered that

when appellant complied with Rule 301, this court would treat appellant’s

previously filed notice of appeal as filed after the entry of judgment. Appellant

timely complied. The record reflects that judgment was entered in favor of

appellees on February 15, 2018. By order entered February 26, 2018, this

court discharged its February 12, 2018 order.

      Appellant raises the following issues for our review:

            [1.]   Whether the trial court committed error by
                   refusing to permit [appellant’s] Expert Bruce P.
                   Mindich, M.D. to testify as to the applicable
                   standard of care for harvesting a saphenous
                   vein[?]

            [2.]   Whether the trial court erred in refusing to
                   permit [appellant] to offer testimony and
                   evidence of the statement by Russell Stahl, M.D.
                   regarding the diagnosis of [appellant’s] leg pain
                   after it was reported to Dr. Stahl[?]

            [3.]   Whether the trial court erred in permitting
                   [appellees] to present testimony and evidence
                   on the known risks and complications associated



                                      -3-
J. A19042/18


                    with the harvesting of the saphenous vein in
                    Coronary Artery Bypass Graft Surgery[?]

             [4.]   Whether the trial court erred in permitting
                    [appellees] to present testimony and evidence
                    on the September 3, 2015 report of Bruce P.
                    Mindich, M.D. that was sent to [appellees] for
                    settlement     purposes      prior  to     the
                    commencement of [appellant’s] lawsuit[?]

Appellant’s brief at 3.

      “[W]hen reviewing the denial of a motion for new trial, we must

determine if the trial court committed an abuse of discretion or error of law

that controlled the outcome of the case.”         Estate of Hicks v. Dana

Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal

denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).

      The issues raised by appellant challenge various evidentiary rulings

made by the trial court.

             Admission of evidence is within the sound discretion
             of the trial court and we review the trial court’s
             determinations regarding the admissibility of evidence
             for an abuse of discretion. To constitute reversible
             error, an evidentiary ruling must not only be
             erroneous, but also harmful or prejudicial to the
             complaining party.

Id. at 961 (citations omitted). “Additionally, [e]videntiary rulings which did

not affect the verdict will not provide a basis for disturbing the jury’s

judgment.” Id. (internal quotation marks and citations omitted; brackets in

original).




                                     -4-
J. A19042/18

      Appellant first complains that the trial court erred when it refused to

permit appellant’s medical liability expert, Bruce P. Mindich, M.D., to testify

as to the applicable standard of care for harvesting a saphenous vein.

            The admission of expert testimony is within the trial
            court’s sound discretion and we will not disturb that
            decision without a showing of manifest abuse of
            discretion.      An expert’s testimony on direct
            examination is to be limited to the fair scope of the
            expert’s pre-trial report. In applying the fair scope
            rule, we focus on the word “fair.” Departure from the
            expert’s report becomes a concern if the trial
            testimony “would prevent the adversary from
            preparing a meaningful response, or which would
            mislead the adversary as to the nature of the
            response.” Therefore, the opposing party must be
            prejudiced as a result of the testimony going beyond
            the fair scope of the expert’s report before admission
            of the testimony is considered reversible error. We
            will not find error in the admission of testimony that
            the opposing party had notice of or was not prejudiced
            by.

Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 522

(Pa.Super. 2009) (citation omitted).

      The record reflects that during discovery, appellant submitted the

May 24, 2016 expert report of Dr. Mindich1 wherein Dr. Mindich opined, in

relevant part:

            The anatomy of the saphenous nerve and saphenous
            vein in the area of venous excision in connection with

1 The record reflects that Dr. Mindich authored a substantially similar expert
report, which is dated September 3, 2015, prior to appellant’s instituting the
underlying action. The record further reflects that Dr. Mindich submitted a
supplemental report dated May 9, 2017, stating that he had reviewed the
reports of appellees’ experts and that those reports did not alter his original
opinion. (Supplemental report of Bruce P. Mindich, M.D., 5/9/17.)


                                       -5-
J. A19042/18


            [appellant’s] coronary by-pass surgery is well known.
            Under the accepted relevant standard of care the
            injuries to [appellant] resulting from the underlying
            injury to the saphenous nerve occurring at the time of
            his coronary by-pass surgery--whether it was
            inadvertently cut, tied-off or otherwise grossly
            impacted as a result of his surgery--were readily
            avoidable.

            Based upon the foregoing, it is my professional
            opinion to a reasonable degree of medical certainty
            that the care, skill or knowledge exercised or exhibited
            in the surgery, treatment, practice of medicine or
            work performed in connection with [appellant’s]
            coronary by-pass surgery by Dr. Deepak Singh, M.D.,
            K. Aikman, PA-C, and T. Ellison, PA-C at [GCMC],
            Scranton PA on September 11, 2014 fell outside
            acceptable professional standards and that such
            conduct was the cause bringing about the harm
            suffered by [appellant].

Report of Bruce P. Mindich, M.D., 5/24/16 at 1-2.

      In precluding Dr. Mindich from testifying as to the acceptable

professional standards, the trial court explained:

            . . . Dr. Mindich’s reports opined that the actions of
            [appellees] “fell outside acceptable professional
            standards” and that “such conduct was the cause
            bringing about the harm suffered by [appellant].”
            However, Dr. Mindich never identified in any of his
            reports    what    those    “acceptable   professional
            standards” consisted of. Dr. Mindich never identified
            what medical records he reviewed before drafting his
            report. His report simply stated, “pursuant to your
            request, I have reviewed certain medical records
            relating to the cardiothoracic surgery performed on
            [appellant]. . . . The records reviewed were all of
            those which were included with your letter.” See,
            May 24, 2016 report of Bruce P. Mindich, M.D. to
            Attorney Carl J. Greco. Moreover, nowhere in his
            report does Dr. Mindich identify what the “acceptable
            professional standards” were against which he was


                                     -6-
J. A19042/18


              measuring the conduct of [appellees]. Dr. Mindich
              just simply and generally states that it is his
              professional opinion “to a reasonable degree of
              medical certainty that the care, skill or knowledge
              exercised or exhibited in the surgery, treatment,
              practice of medicine or work performed in connection
              with [appellant’s] coronary by-pass surgery by
              [appellees] . . . fell outside acceptable professional
              standards.” (emphasis added). Dr. Mindich’s report,
              essentially, is a disjunctive kitchen sink approach that
              measures the conduct of [appellees] without revealing
              or identifying his yardstick. To allow Dr. Mindich to
              identify the acceptable standard of care for the first
              time from the witness stand deprived [appellees] of
              an appropriate opportunity to prepare a response to
              his testimony. In short, we conclude that since
              Dr. Mindich did not identify the acceptable standards
              of care in his report, testimony beyond his report
              would not have been, in our view, within the “fair
              scope” of his report. Indeed, Dr. Mindich’s report was
              completely silent regarding any standard of care, or
              even breach for that matter, concerning [appellee
              Dr.] Singh’s supervisory capacity over the physician’s
              assistants Aikman and Ellison. His report provided
              absolutely no basis for any proposed testimony on
              that topic.      We do not think it consistent with
              Rule 4003.5[2] to allow an expert to define the
              standard of care from the witness stand without first
              identifying it in a report.

Trial court opinion, 12/15/17 at 8-9.

        A reading of Dr. Mindich’s May 24, 2016 expert report demonstrates

that he failed to set forth the applicable standard of care; rather, Dr. Mindich

merely opined that certain conduct “fell outside acceptable professional

standards” without identifying those “acceptable professional standards.”

(Report of Bruce P. Mindich, 5/24/16 at 2.) Therefore, the trial court properly


2   Pa.R.Civ.P. 4003.5(c) sets forth the fair scope rule.


                                        -7-
J. A19042/18

precluded Dr. Mindich from testifying at trial as to the applicable standard of

care.

        Appellant next complains that the trial court erred by precluding

appellant and his neighbor from testifying regarding the alleged statement

made to them by Russell Stahl, M.D., a non-party physician, that Dr. Stahl’s

colleague had nicked appellant’s nerve because the statement was admissible

under Pennsylvania Rules of Evidence 803(4) and (25).

        Rule 803 provides, in relevant part:

              The following are not excluded by the rule against
              hearsay,[3] regardless of whether the declarant is
              available as a witness:

              ....

              (4)    Statement Made for Medical Diagnosis or
                     Treatment. A statement that:

                     (A)   is    made      for--and   is
                           reasonably    pertinent  to--
                           medical      treatment     or
                           diagnosis in contemplation of
                           treatment; and

                     (B)   describes medical history,
                           past or present symptoms,
                           pain, or sensations, or the
                           inception or general character
                           of the cause or external
                           source thereof, insofar as

3 Pennsylvania Rule of Evidence 801(c) defines “hearsay” as “a statement that
(1) the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter asserted in
the statement. Pa.R.E. 801(c). “Hearsay is not admissible except ‘as provided
by the [[R]ules of Evidence], by other rules prescribed by the Pennsylvania
Supreme Court, or by statute.” Pa.R.E. 802.


                                       -8-
J. A19042/18


                        reasonably    pertinent    to
                        treatment, or diagnosis in
                        contemplation of treatment.

           ....

           (25) An Opposing Party’s Statement.      The
                statement is offered against an opposing
                party and:

           ....

                  (D)   was made by the party’s
                        agent or employee on a
                        matter within the scope of
                        that relationship and while it
                        existed; or

           ....

Pa.R.E. 803(4) & (25)(D).

     With respect to the medical treatment exception to the hearsay rule set

forth in Rule 803(4), our supreme court has explained that this exception:

           provides that testimony repeating out-of-court
           statements which were made for the purposes of
           receiving medical treatment are admissible as
           substantive evidence. As early as 1884, this Court
           stated that “nothing is better settled than that
           statements of a patient to his physician, as to the
           character and seat of his sensations, made for the
           purpose of receiving medical advice, are competent
           evidence. . . .” Lichtenwallner v. Laubach, 105 Pa.
           366 (1884).

                  The law in Pennsylvania . . . has been that
                  statements to a doctor were admissible
                  insofar as they were necessary and proper
                  for diagnosis and treatment of the injury
                  and referred to symptoms, feelings and
                  conditions.



                                     -9-
J. A19042/18


            ....     Given these descriptions of the medical
            treatment exception, it becomes apparent that there
            are essentially two requirements for a statement to
            come within this exception. First, the declarant must
            make the statement for the purpose of receiving
            medical treatment, Lichtenwallner v. Laubach, and
            second, the statement must be necessary and proper
            for diagnosis and treatment[.]

Commonwealth v. Smith, 681 A.2d 1288, 1291 (Pa. 1996) (some internal

citations omitted).

      Here, the trial court properly concluded that the medical treatment

exception to the hearsay rule does not apply because the statement that

Dr. Stahl allegedly made to appellant and his neighbor was not made by a

patient for the purpose of receiving medical treatment.

      With respect to the admission by a party opponent exception under

Rule 803(25)(D), the proponent of the statement must demonstrate that:

“(1) the declarant was an agent or employee of a party opponent; (2) the

declarant made the statement while employed by the party opponent; and

(3) the statement concerned a matter within the scope of agency or

employment.”    Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270, 1275

(Pa.Super. 2005) (citation omitted).

      Here, appellant claims that the trial court erred in not admitting

Dr. Stahl’s statement that Dr. Stahl’s colleague had nicked appellant’s nerve

under Rule 803(25)(D) because:

            The trial record clearly supports the existence of an
            ostensible agency relationship between Dr. Stahl



                                   - 10 -
J. A19042/18


            and [GCMC]. In fact, in response to questioning,
            Dr. Singh stated:

                  Q.    Who’s Dr. Stahl?

                  A.    Dr. Stahl at that time was one of my
                        colleagues and partners. And he
                        was primarily in charge of this
                        campus or the Scranton campus.

            Dr. Singh went on to testify that, “At [GCMC],
            Dr. Stahl is in charge” with respect to determining
            individuals’ roles in surgery. Further, the statement
            is clearly within the scope of this relationship: it
            directly relates to the reason that [appellant] was
            admitted to [GCMC]; the cardiothoracic evaluation he
            underwent with Dr. Stahl when admitted to the
            hospital; and the surgery that [appellant] underwent
            and that is at the center of this action. Finally, the
            statement was made during the existence of that
            relationship. The requirements of Pa. R.E. 803(25)(D)
            where [sic] clearly met, however, the court committed
            an abuse of discretion and failed to apply this
            exception to the hearsay rule when ruling on Plaintiff’s
            Motion for a New Trial.

Appellant’s brief at 29 (emphasis added).

      Contrary to appellant’s assertion, ostensible agency is a theory of

liability and not a consideration under the admission by party opponent

exception to the hearsay rule.

      To gain admissibility under Rule 803(25)(D), appellant was first required

to prove by a preponderance of the evidence that Dr. Stahl made the

statement while an agent of GCMC. An agency relationship may be created

by:

            (1) express authority, (2) implied authority,
            (3) apparent authority, and/or (4) authority by


                                     - 11 -
J. A19042/18


            estoppel. Express authority exists where the principal
            deliberately and specifically grants authority to the
            agent as to certain matters. Implied authority exists
            in situations where the agent’s actions are “proper,
            usual and necessary” to carry out express agency.
            Apparent agency exists where the principal, by word
            or conduct, causes people with whom the alleged
            agent deals to believe that the principal has granted
            the agent authority to act. Authority by estoppel
            occurs when the principal fails to take reasonable
            steps to disavow the third party of their belief that the
            purported agent was authorized to act on behalf of the
            principal.

                                     ***

            The basic elements of agency are the manifestation
            by the principal that the agent shall act for him, the
            agent’s acceptance of the undertaking and the
            understanding of the parties that the principal is to be
            in control of the undertaking. The creation of an
            agency relationship requires no special formalities.
            The existence of an agency relationship is a question
            of fact. The party asserting the existence of an agency
            relationship bears the burden of proving it by a fair
            preponderance of the evidence.          In establishing
            agency, one need not furnish direct proof of specific
            authority, provided it can be inferred from the facts
            that at least an implied intention to create the
            relationship of principal and agent existed.

CONRAIL v. Ace Prop. & Cas. Ins. Co., 182 A.2d 1011, 1027 (Pa.Super.

2018).

     Here, appellant neither claims on appeal nor did he demonstrate below

the existence of an agency relationship between GCMC and Dr. Stahl by

express authority, implied authority, apparent authority, and/or authority by

estoppel.   Appellant merely cites to Dr. Singh’s testimony that he and

Dr. Stahl were “colleagues and partners” and that Dr. Stahl “was primarily in


                                     - 12 -
J. A19042/18

charge of this campus or the Scranton campus” to support the existence of an

“ostensible agency” relationship between Dr. Stahl and GCMC. (Appellant’s

brief at 29.) Notwithstanding the fact that the ostensible agency theory of

liability   has   no   bearing   on   admissibility   of   the   statement   under

Rule 803(25)(D), the record supports the trial court’s determination that

appellant failed to lay a foundation to support the conclusion that Dr. Stahl

was GCMC’s agent. Therefore, the trial court did not abuse its discretion when

it held that the statement was not admissible under Rule 803(25)(D).

       Appellant next complains that the trial court erred when it permitted

appellees to introduce evidence of known risks and complications of harvesting

the saphenous vein in coronary artery bypass surgery. In this assignment of

error, appellant calls this court’s attention to four pages of testimony of

defense expert Dr. Walter Pae, Jr., wherein appellant claims Dr. Pae

impermissibly and “continually testified before the jury that [appellant’s]

injuries were a known risk and complication associated with the harvesting of

the saphenous vein.” (Appellant’s brief at 37-39, citing notes of testimony,

7/12/17 at 181-182, 184-185.)

       Our review of Dr. Pae’s testimony reveals that appellant failed to object

to any of the testimony that he now challenges as inadmissible.4 It is well

settled that a failure to object before the trial court results in waiver of the


4 We note that a review of Dr. Pae’s testimony on direct and re-direct
examinations reveals that appellant did not object to any of Dr. Pae’s
testimony. (Notes of testimony, 7/12/17 at 173-189, 195-197.)


                                       - 13 -
J. A19042/18

issue 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”); see also

Burnhauser v. Bumberger, 745 A.2d 1256, 1259 (Pa.Super. 2000) (failure

to object before the trial court results in waiver of issue on appeal).

      Appellant nevertheless claims that he preserved his objection to

Dr. Pae’s challenged testimony because

            [p]rior to the direct testimony of Dr. Mindich, the
            [trial] court ruled on the extent of the testimony that
            Dr. Mindich would be allowed to provide on the
            applicable standard of care. In light of the ruling on
            the scope of Dr. Mindich’s testimony, over the
            objection and argument of [appellant’s] counsel, the
            court erred again in ruling that such testimony would
            “open the door” to testimony regarding the known
            risks and complications associated with the harvesting
            of a saphenous vein in CABG Surgery.

Appellant’s reply brief at 10.

      Even if we gave appellant the benefit of the doubt that the argument he

advanced at trial regarding the fair scope of Dr. Mindich’s report that preceded

the trial court’s ruling with respect to the scope of Dr. Mindich’s testimony

somehow preserved his objection to Dr. Pae’s testimony, his claim would fail.

      In Mitchell v. Shikora, 161 A.3d 970, 975 (Pa.Super. 2017), we held

that evidence of risks and complications of a surgical procedure may be

admissible to establish the relevant standard of care, but such evidence is

irrelevant to the determination of whether the defendant acted within the

applicable standard of care in medical negligence cases that do not advance

an informed consent claim.


                                     - 14 -
J. A19042/18

        Here, with respect to evidence of risks and complications, the trial court

ruled as follows:

              [THE COURT:] [B]ased on my reading of Mitchell, I’m
              going to say at this stage of the game we won’t be
              taking any evidence on the discussion of risks or
              complications, okay, based on my reading of Mitchell.
              Mitchell does not provide an out and out ban of
              evidence of risk and complications in the absence of
              an informed consent claim.

              But based on the circumstances that we have right
              now, I think it’s sufficient to preclude that evidence. I
              will say that if evidence is brought forth either by way
              of direct or cross examination which might open that
              door, I will consider using it or allowing it in at the
              appropriate time. But as we stand right now[] it’s not
              coming in [. . . .]

Notes of testimony, 7/10/17 at 24-25.

        During direct examination, and despite the trial court’s proper ruling

precluding Dr. Mindich from testifying as to the applicable standard of care as

outside the fair scope of his expert report, Dr. Mindich testified that “the

standard of care demands that you do not cause damage to the nerve that

runs near the saphenous vein.” (Id. at 69.) At this point, evidence of risks

and complications became admissible to establish the applicable standard of

care.

        Appellant finally complains that the trial court erred in permitting

Dr. Mindich to be cross-examined with respect to the doctor’s September 3,

2015 expert report that was sent as an enclosure to correspondence that

appellant’s counsel sent to Dr. Singh, GCMC, and Health System that placed



                                       - 15 -
J. A19042/18

them on notice of appellant’s claims and attempted to settle the case in

violation of Pa.R.E. 408. (Appellant’s brief at 40-43; see also correspondence

dated 9/11/15 from appellant’s counsel to Dr. Singh, GCMC, and Health

System stamped “for settlement purposes only”.)

      Rule 408(a) provides that:

            Evidence of the following is not admissible--on behalf
            of any party--either to prove or disprove the validity
            or amount of a disputed claim or to impeach by a prior
            inconsistent statement or a contradiction:

            (1)   furnishing, promising, or offering--or
                  accepting, promising to accept, or offering
                  to accept--a valuable consideration in
                  compromising      or     attempting      to
                  compromise the claim; and

            (2)   conduct or a statement made during
                  compromise negotiations about the claim.

Pa.R.E. 408(a).

      Stated differently, offers of settlement or compromise of a disputed

claim are not admissible in evidence to prove liability for or invalidity of the

claim or its amount. See Pa.R.E. 408; see also McMullen v. Kutz, 925 A.2d

832, 835 (Pa.Super. 2007).

      Here, Dr. Mindich’s September 3, 2015 expert report sets forth his

conclusion that in his:

            professional opinion to a reasonable degree of medical
            certainty that the care, skill or knowledge exercised
            or exhibited in the surgery, treatment, practice of
            medicine or work performed in connection with
            [appellant’s] coronary by-pass surgery by Dr. Deepak
            Singh, M.D., at [GCMC], Scranton PA on


                                     - 16 -
J. A19042/18


            September 11,     2014    fell  outside   acceptable
            professional standards and that such conduct was the
            cause bringing about the harm suffered by
            [appellant].

Report of Bruce P. Mindich, M.D., 9/3/15 at 2.

      The record reflects that Dr. Mindich’s September 3, 2015 report and his

May 24, 2016 expert report are identical but for the addition of Aikman’s and

Ellison’s names in the May 24, 2016 report. The record further reflects that

during argument on this issue, counsel for GCMC stated that she received the

report from appellant’s counsel but that she did not solicit the report. (Notes

of testimony, 9/12/17 at 10.) Nothing in the record demonstrates that the

jury was informed that the September 3, 2015 report was an enclosure to

unsolicited correspondence from appellant’s counsel to GCMC, Health System,

and Dr. Singh marked “for settlement purposes only.”

      Therefore,   appellant   fails   to   demonstrate   how   Dr.   Mindich’s

September 3, 2015 report furnished, promised, or offered a valuable

consideration in compromising or attempting to compromise the claim during

settlement negotiations to render it inadmissible under Rule 408. We find no

abuse of discretion.

      Judgment affirmed.




                                       - 17 -
J. A19042/18



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2019




                          - 18 -
