J-A22002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOSHUA R. SIRCHIO AND ALLISON            :   IN THE SUPERIOR COURT OF
 D. SIRCHIO, H/W                          :        PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
               v.                         :
                                          :
                                          :   No. 3444 EDA 2016
 COREY MACDOUGALL                         :

            Appeal from the Judgment Entered January 5, 2017
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 2013-33448


BEFORE:      BOWES, J., LAZARUS, J., and PLATT*, J.

DISSENTING MEMORANDUM BY BOWES, J.:                       Filed July 20, 2018

      Since I believe the trial court erroneously permitted the defense expert

to testify beyond the fair scope of his expert report in violation of Pa.R.C.P.

4003.5(c), and that the error was prejudicial to the Sirchios, I would grant a

new trial.    The fact that counsel for the Sirchios availed himself of the

opportunity to cross-examine the expert and challenge his findings, and did

so quite capably, could not compensate for the prejudice engendered by the

Sirchios’ lack of an expert to rebut that testimony.      Thus, I respectfully

dissent.

      The record reveals the following. Defense expert Daniel Honig, P.E., a

civil engineer by education and training, supplied a report containing his

opinions “based on reasonable engineering assumptions.”          Honig Expert

Report, 1/12/16, at 9. He opined therein that Mr. MacDougall complied with
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A22002-17


the borough code requiring property owners to clear their sidewalks within

twenty-four hours of the cessation of precipitation. According to Mr. Honig,

the sidewalk was clear, and the fall “simply occurred due to the failure of Mr.

Sirchio to exercise proper caution when traversing an exterior walkway

affected by ongoing inclement weather conditions.” Id. at 8. In support of

that opinion, he pointed out that Mr. Sirchio “elected to walk across the grass

where the sidewalk had not been cleared[,]” but chose to walk on the sidewalk

adjacent to Mr. MacDougall’s property where he fell. Id.

      At trial, defense counsel elicited Mr. Honig’s opinion that Mr. MacDougall

had complied with the borough code and cleared his sidewalk within the

requisite timeframe. He then inquired whether the expert saw evidence that

Mr. MacDougall used ice-melting chemicals on the walk. An objection to this

line of questioning, based on it being beyond the scope of the expert’s report,

was sustained by the trial court. Defense counsel then asked Mr. Honig about

“conspicuity” and “discernibility.”   The witness explained that conspicuity

refers to “what was visually discernible as [Mr. Sirchio] was walking down the

sidewalk.” N.T. Jury Trial Vol. II, 6/21/16, at 167. He explained that the

portion of the sidewalk where Mr. Sirchio fell, “which was bare, would be

discernible even at night under low light conditions.” Id. Defense counsel

then asked whether, based on Mr. Sirchio’s deposition testimony and “the

photographs that you had available for your review, including that nighttime

photograph, do you believe that some or any of the icy condition on the


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sidewalk would have been conspicuous to Mr. Sirchio?”         Id. at 167-68.

Plaintiffs’ counsel objected and the court sustained the objection.        The

following exchange ensued.

     [DEFENSE COUNSEL]: That was directly addressed in his report.

     THE COURT: Speculation? Basis?

     [PLAINTIFFS’ COUNSEL]: I am looking at his report. I don't see
     anything about conspicuity or anything like that. I don't know
     where this is coming from right now.

     THE COURT: Could you show me in the report?

     [DEFENSE COUNSEL]: I forget. Do you have a copy of the report?

     THE COURT: I do not.

     [DEFENSE COUNSEL]: Your Honor, if I could refer you to page 8,
     the first paragraph under conclusions, while the term conspicuity
     isn't specifically referenced, there is general reference –

     THE COURT: The first paragraph?

     [DEFENSE COUNSEL]: Page 8, the first paragraph.

     THE COURT: I got it. I am going to give you a little leeway. I will
     allow him to ask the question.

     [PLAINTIFFS’ COUNSEL]: Judge, could I have clarification for the
     record?

     THE COURT: Yes.

     [PLAINTIFFS’ COUNSEL]: There is nothing in here that talks about
     whether or not this would be visible at nighttime.

     THE COURT: It does not. But I will allow him to ask a general
     question on this topic.




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       [PLAINTIFFS’ COUNSEL]: Fair enough.1

       [DEFENSE COUNSEL]: It must be a new question or can I use the
       question that is already on the record?

       THE COURT: I don't remember the question anymore. If you could
       ask that question again, go ahead.

       [DEFENSE COUNSEL]: I will attempt to.

       BY [DEFENSE COUNSEL]:

              Q. Mr. Honig, I don't know if you remember the question
              that I asked you or not, I think I might be paraphrasing
              here, I asked you based on your review of Mr. Sirchio's
              deposition testimony, and the photographs that you had
              available for your review, perhaps more specifically
              Plaintiff's Exhibit 1, the nighttime photograph, do you
              believe that some or any of the icy condition on the sidewalk
              would have been conspicuous to Mr. Sirchio on that
              evening?

              A. Well, what I recall reading in Mr. Sirchio's deposition was
              that he was well aware of the active weather conditions on
              the pedestrian sidewalk or walkway. And understanding at
              that time of night, that type of season, and these conditions,
              certainly the active weather conditions would be discernible.
              They wouldn't be accurate, very precisely discernible, but it
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1 My colleagues make a point of emphasizing that the Sirchios’ counsel
responded “Fair enough[,]” after the court ruled that defense counsel could
ask the expert a general question on the visibility of black ice, and that “He
did not object again.” Majority Memorandum, at 14. To the extent that the
majority contemplated finding waiver based on counsel’s response, I offer my
thoughts in this regard.

Plaintiffs’ counsel objected, stated the basis for his objection, and argued its
merits. Defense counsel responded, and the court ruled. I submit Plaintiffs’
counsel’s words were nothing more than a polite acknowledgment of, and
deference to, the court’s ruling. These and similar expressions merely signal
that the argument is concluded. I submit that such expressions do not
connote withdrawal of the objection or acquiescence in the court’s reasoning,
and that we should not be too quick to find waiver in the face of civility.

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            certainly would be discernible. In other words, if I was
            looking at the clean concrete versus the darker stain next to
            that, that would show up as a stain. When I say stain, a
            mark, whether it is ice, water, or a combination thereof. But
            that would be discernible, and clearly discernible. And when
            you are seeing down a walkway like that, either walking on
            the grass next to it, or stepping over to step on the sidewalk,
            that would be, my understanding of how you proceed with
            caution on your own behalf.

N.T. Jury Trial Vol. II, 6/21/16, at 168-70.

      The Sirchios’ motion for a new trial focused on the improper admission

of Mr. Honig’s expert opinion that the darker stained ice-covered concrete

would be discernible next to the clean concrete, and that Mr. Sirchio should

have seen and avoided the ice. Mr. Honig rendered no opinion at all in his

report as to whether the ice patch was conspicuous. He did not comment on

any alleged difference in color between the ice and the dry portion of the

sidewalk that would have made the ice visible. His expert report certainly did

not contain any opinion that Mr. Sirchio should have seen the ice prior to his

fall based on the lighting and other conditions at the time. Nevertheless, over

objection, Mr. Honig was permitted to offer expert opinion that Mr. Sirchio

should have seen the ice patch.

      In support of their contention that the trial court erred, the Sirchios

allege the following. In reliance upon Mr. Honig’s report, the Sirchios had

proceeded to trial on the reasonable assumption that this issue would not be

the subject of expert testimony, and they did not have an expert who could

render an opinion about the lighting, the appearance of the concrete, or the


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visibility of the ice patch to counter Mr. Honig’s surprise opinion. The Sirchios

maintain that the only negligence cited by Mr. Honig in his report was that Mr.

Sirchio was in a rush to get home to his sick wife, he had admittedly had a

few drinks while watching the hockey game, and that he failed to exercise due

care.

        Pa.R.C.P. 4003.5(c) provides in pertinent part that "direct testimony of

the expert at the trial may not be inconsistent with or go beyond the fair scope

of his . . . report”). They maintain that the rule is designed “to prevent

incomplete or ‘fudging’ of reports which would fail to reveal fully the facts and

opinions of the expert or his grounds therefor.” Pa.R.C.P. 4003.5 comment.

The Sirchios point to their broad discovery requests that were calculated to

“force all of the expert’s proposed testimony into the report, and prevent

surprise at trial.” 2 Takes v. Metropolitan Edison Co., 655 A.2d 138, 145

(Pa.Super. 1995), rev’d in part on other grounds, 695 A.2d 397 (Pa. 1997).

        The Sirchios argue that the purpose of Rule 4003.5 was subverted by

permitting the defense expert to testify outside the scope of his report herein.

Furthermore, since the expert report did not touch on that subject matter of




____________________________________________


2 The Sirchios served interrogatories seeking to discover the opinions of Mr.
MacDougall’s trial experts. The defense responded that its investigation was
continuing, and that it had not yet designated its trial expert. In lieu of
supplementing that response when it retained Mr. Honig, the defense supplied
his expert report, as is common. No expert deposition was taken.

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the opinions, they were surprised by the expert opinion rendered and had no

expert to rebut it.

      Mr. Honig’s expert opinion regarding Mr. Sirchio’s ability to see the ice

was not contained anywhere in his expert report, and certainly not at page 8,

the first paragraph under “Conclusion.” That paragraph provided:

            Based upon my over four decades of engineering and
      building construction experience, my review of the above-
      referenced documentation, and my knowledge of appropriate
      building and safety codes, it is my opinion, with a reasonable
      degree of engineering certainty, that this incident simply occurred
      due to the failure of Mr. Sirchio to exercise proper caution when
      traversing an exterior walkway affected by ongoing inclement
      weather conditions. He stated that he was aware of the active
      weather conditions on the pedestrian walkways along his path of
      travel, and confirmed that he elected to walk across the grass
      where the sidewalk had not been cleared of snow and/or ice.

Expert Report, Daniel M. Honig, P.E., 1/12/16, at 8.

      “In determining whether an expert's trial testimony falls within the fair

scope of his pre-trial report, the question is whether the report provides

sufficient notice of the expert's theory to enable the opposing party to prepare

a rebuttal witness.” Brodowski v. Ryave, 885 A.2d 1045, 1065 (Pa.Super.

2005) (en banc). Conspicuously absent from Mr. Honig’s report is any opinion

that the patch of ice was conspicuous, i.e., distinguishable from dry concrete,

or that given the lighting conditions, Mr. Sirchio would have been able to see

it. Nonetheless, the trial court permitted the expert, over objection, to offer

expert opinions regarding these matters.




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       At the hearing on post-trial motions, the trial court expressed skepticism

at the Sirchios’ claim of surprise, stating that, “lighting was pretty much a big

issue during this entire trial.” N.T. Post-Trial Motions, 8/18/16, at 14. Counsel

for the Sirchios acknowledged that lighting was an issue, but pointed out that

lighting was not addressed by either party’s expert.3 Counsel maintained that

surprise and prejudice flowed from the fact that an expert, a person the jury

perceived as authoritative, was permitted to render such an opinion,

unrebutted by expert testimony. He argued, “if Mr. Honig . . . wanted to give

an expert opinion on lighting conditions, he should have included that in his

report and that’s a problem. He never did that.” Id. at 13-14.

       I agree with the position articulated by the Sirchios. Mr. Honig’s expert

report did not contain any opinion regarding the lighting or what Mr. Sirchio

would or should have seen, and I cannot account for my colleagues’ conclusion

____________________________________________


3 No expert addressed the lighting or Mr. Sirchio’s ability to see the ice in an
expert report. However, both parties offered testimony from fact witnesses
regarding the lighting. Mrs. Sirchio testified that she could only see the ice
on the sidewalk when she used the flashlight on her phone. Mr. Sirchio
testified that the light near the corner showed that the sidewalk was clear,
prompting him to walk on it. N.T. Jury Trial Vol. II, 6/21/16, at 73. He added
that the additional light from the streetlight across the street was behind the
tree and did not illuminate the icy area. Id. at 74. Mr. Sirchio said he could
not see the difference between the clear sidewalk and the icy portion. Id. Mr.
MacDougall testified that at least some of the light from the streetlight at the
corner illuminated the area of the sidewalk where Mr. Sirchio fell. N.T. Jury
Trial Vol. III, 6/22/16, at 17. He disputed that the tree blocked the light from
the streetlight across the street during the winter. Id. at 18. Nonetheless,
he acknowledged that it would be more difficult to see ice on the sidewalk at
nighttime. Id. at 33.



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that the defense “expert’s testimony was within the fair scope of the expert’s

report, and based on numerous prior references throughout the trial.” 4

Majority Memorandum at 15. Furthermore, I do not understand the nature of

the “references” to which the majority alludes or how they would justify the

admission of an expert’s opinion that was not contained in his expert report.

       While my colleagues maintain that, in any event, the admission of Mr.

Honig’s expert opinion was not prejudicial to the Sirchios, I respectfully

disagree. In finding no prejudice, the majority points to the “capable and

productive cross-examination” of the expert conducted by counsel for the

Sirchios as providing a meaningful response to Mr. Honig’s testimony. It also

dismisses as speculation the notion that the jury may have accorded greater

weight to the testimony of an expert. Finally, it faults the Sirchios for not

recalling their expert, even though the record establishes that Mr. Littlewood

declined on cross-examination to express any opinion on the lighting because

he discounted the reliability of nighttime photographs.

       I submit that the Sirchos were genuinely surprised by the admission of

previously undisclosed expert opinion that Mr. Sirchio “would have been able

to see the ice.” While expert testimony that exceeds the scope of a report

has been held not to be unfairly prejudicial or surprising if it is offered as fair


____________________________________________


4 In his expert report, Mr. Honig merely quoted Mr. MacDougall’s deposition
testimony that the streetlight at the corner adequately lit the sidewalk.
However, the expert report did not contain the expert’s opinion regarding
whether Mr. Sirchio could have seen the ice.

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rebuttal to the other party’s expert’s testimony, or based upon facts learned

by listening to testimony at trial, that was not the case herein.      Brady v.

Ballay, Thornton, Maloney Medical Associates, Inc., 704 A.2d 1076,

1082 (Pa.Super. 1997); see also Foflygen v. Allegheny Gen. Hosp., 723

A.2d 705, 710 (Pa.Super. 1999) (overruled in part on other grounds by Shinal

v. Toms, 162 A.3d 429 (Pa. 2017) (“fair” in this context means that the

testimony is not surprising or prejudicial).       Mr. Honig’s testimony did not

constitute rebuttal, let alone fair rebuttal, as Mr. Littlewood, the Sirchios’

expert, did not render any expert opinions regarding the lighting, the color of

the concrete, or Mr. Sirchio’s ability to see the ice.5     Nor was Mr. Honig’s

opinion formed while listening to factual testimony at trial, as he expressly

stated that his opinion that the ice was discernible was based on his review of

Mr. Sirchio’s deposition and photographs, the same materials that he utilized

when he prepared his expert report that did not contain such an opinion.

       This Court, on numerous occasions, has granted a new trial where an

expert was permitted to testify beyond the scope of his expert report. In

Jones v. Constantino, 631 A.2d 1289 (Pa.Super. 1993), we affirmed the

grant of a new trial where a defense expert was permitted to testify as to the



____________________________________________


5  Mr. Littlewood acknowledged on cross-examination that “some of the
light” from the streetlight reached the area where the ice had formed, but
maintained that it was difficult to judge illumination levels in photographs
taken at night as they might not accurately reflect the natural lighting
conditions. N.T. Jury Trial Vol. II, 6/21/16, at 10.

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specific cause of plaintiff’s problem following gallbladder surgery, even

though, in his expert report, he only generally opined that plaintiff’s injury

was unavoidable and not caused by negligence. We found that the defense

expert's trial testimony exceeded the scope of his expert report, and there

was prejudice in his “bald assertion of non-negligence in his expert report”

and his “in-depth theory explaining absence of culpability at trial.”      Id. at

1295. We held that the report, which did not apprise the opponent of the

basis for the expert's conclusion, failed to comport with Pa.R.C.P. 4003.5(c).

      Walsh v. Kubiak, 661 A.2d 416 (Pa.Super 1995) (en banc), involved

claims of medical malpractice and battery for lack of informed consent against

an orthopedic surgeon. Although the defense expert's report only addressed

the lack of negligence, the defense sought to elicit his expert opinion that the

surgery was necessary. The trial court precluded the defense expert from

expressing that opinion at trial because it exceeded the scope of his report.

We affirmed on appeal, finding that nothing in the expert report would have

prepared the plaintiff for that opinion. Consequently, the plaintiff would have

been prejudiced as he did not have an expert to rebut it and was not

adequately prepared to cross-examine the expert.

      More recently, in Woodard v. Chatterjee, 827 A.2d 433 (Pa.Super.

2003), a motor vehicle accident case, we awarded a new trial where the trial

court permitted plaintiff's medical expert to testify that the plaintiff sustained

a cervical injury due to the accident, even though his expert report noted only


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“some lingering neck pain and stiffness” from an earlier accident. Id. at 437.

The trial court declined to award a new trial as it found no prejudice or surprise

because the defendant was privy to the EMG report upon which the expert

relied and “had adequate time to prepare a rebuttal.”          Id. at 442.    We

reversed, finding that, not only did the testimony exceed the fair scope of the

expert's report, but it was prejudicial. The defendant lacked sufficient notice

that the only trial expert would testify about the findings and diagnoses of

other physicians to whom he made no reference in his own reports.

      Finally, in Brodowski v. Ryave, supra, this Court, sitting en banc,

affirmed the trial court's refusal to admit expert testimony regarding “what

[defendant doctor] should have known or what inquiries, if any, he should

have made to the unknown person who reported to him that night[,]” since it

was not addressed in the expert’s reports. We held therein that the proffered

testimony was beyond the scope of the reports and constituted unfair surprise.

      Hence, I believe Mr. Honig’s expert opinion regarding Mr. Sirchio’s ability

to see the ice should have been excluded as outside the scope of his report.

Furthermore, the expert opinion constituted unfair surprise to the Sirchios,

who were not apprised of the opinion, and who had no expert to rebut it. I

believe there was a very real danger that the jury accorded greater weight to

the expert’s testimony than lay testimony, especially since there was no

controverting expert.    The error certainly may have affected the verdict,




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especially the jury’s finding that Mr. Sirchio was not only negligent, but more

negligent than Mr. MacDougall.

      Where, as here, an erroneous evidentiary ruling harms the complaining

party, the remedy is a new trial. Woodard, supra at 440-41. Since I believe

the Sirchios should be afforded that remedy, I respectfully dissent.




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