J-A17014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIAS A. KARKALAS, M.D.                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

WILLIAM MARTIN, GRAEBERS LUMBER
COMPANY AND INDIANA LUMBERMAN’S
MUTUAL INSURANCE COMPANY,

                            Appellees                No. 3176 EDA 2015


                   Appeal from the Order September 17, 2015
                in the Court of Common Pleas of Chester County
                         Civil Division at No.: 12-11560

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 06, 2016

        Appellant, Elias A. Karkalas, M.D., appeals from the order of

September 17, 2015, which granted the motion of Appellees, William Martin

and Graebers Lumber Company, for summary judgment in this action arising

out of a motor vehicle collision.1 On appeal, Appellant challenges the trial

court’s grant of a motion in limine filed by Appellees that precluded

Appellant’s treating physicians from offering expert testimony as to

causation. For the reasons discussed below, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   On April 25, 2014, the parties stipulated to the removal of defendant
Indiana Lumberman’s Mutual Insurance Company from the action. Thus, it
is not a party to this appeal.
J-A17014-16


      We take the underlying facts and procedural history in this matter

from our independent review of the certified record. Appellant commenced

this action by filing a writ of summons on November 5, 2012. On November

18, 2013, following an administrative conference, the trial court issued an

order requiring, in part, that Appellant file a complaint by December 31,

2013; that the parties complete all discovery by May 30, 2014; and that

Appellant provide all expert reports by June 30, 2014. (See Administrative

Conference Order, 11/18/13, at unnumbered page 1).

      On January 16, 2014, Appellant filed a complaint claiming, in part, that

on November 18, 2010, a truck operated by Appellee, William Martin, and

owned by Appellee, Graebers Lumber Company, struck his car, seriously

injuring him.   (See Complaint, 1/16/14, at 2 ¶ 6 and 5 ¶ 30).       Appellant

claimed that, because of the accident, he suffered serious injuries, requiring

extensive medical treatment. (See id. at 4 ¶ 18). Whether the automobile

accident caused these injuries, and whether Appellant’s treating physicians

could testify as to causation is central to this matter.

      Specifically, Appellant alleged that he developed congestive heart

failure and required aortic valve replacement and reconstruction. (See id.

at ¶¶ 19-22).    Joseph Bavaria, M.D., treated Appellant for this condition.

(See id. at ¶ 20). In a September 18, 2012 letter addressed to Dr. Arthur

Belber, Cardiac Consultant, Dr. Bavaria stated, in pertinent part:

      It has been noted that the patient had a traumatic deceleration
      [six] months prior to surgery reconstruction of the ascending

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       aorta. It was also [two] months prior to rapid development of
       heart failure most probably secondary to valvular
       dysfunction. We know that the ascending aorta is the second
       most common site for intimal disruption after deceleration
       trauma.

       Intimal tears are associated with dilated ascending aorta and
       subsequent development of aortic regurgitation. If the AI is
       severe enough, then a dilated cardiomyopathy become evident.
       While it is impossible to fully ascertain why this series of
       conditions developed, it is certain that there is a
       significant relationship to his deceleration trauma.

([Appellant’s] Memorandum of Law in Support of his Response in Opposition

to Motion in Limine of [Appellees] to Preclude [Appellant’s] Experts from

Testifying at Trial who Have Failed to Submit Expert Reports, 5/07/15, at

Exhibit A) (emphases added).

       Appellant   also    alleges   that   he      sustained   persistent    cognitive

difficulties;   Lawrence   A.   Kerson,     M.D.,    diagnosed    Appellant    with   a

concussion and post-traumatic stress disorder. (See Complaint, 1/16/14, at

5 ¶¶ 24-26). In a December 20, 2010 progress note, Dr. Kerson stated, in

pertinent part:

       [Appellant] . . . was involved in an automobile accident on
       November 18, 2010 in which I-beams protruding from a flatbed
       truck in front of him sheared the top of his car and even took off
       the passenger side front headrest. . . . At the time of impact, he
       was stunned but did not lose consciousness. He describes [five]
       or [six] minutes of being “in shock”.

Dr. Kerson continues in the “Assessment” section:

       1.    Post Concussion Syndrome . . . (Primary) The clear
       combination of symptoms after an accident without clear loss of
       consciousness but with a significant acceleration deceleration
       component likely reflects post concussion syndrome, without

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      loss of consciousness. The differential diagnosis includes post
      traumatic stress disorder, given the terrifying quality of the
      accident.

([Appellant’s] Memorandum of Law in Support of his Response in Opposition

to Motion in Limine of [Appellees] to Preclude [Appellant’s] Experts from

Testifying at Trial who Have Failed to Submit Expert Reports, 5/07/15, at

Exhibit D) (emphasis added).

      Further, Appellant also alleged that because of the accident, he

suffered from visual disturbances requiring surgery for posterior vitreous

detachment in both eyes.     (See Complaint, 1/16/14, at 5 ¶ 27).     Arunan

Sivalingam, M.D., treated Appellant for this condition. (See id. at ¶ 28). In

an October 10, 2012 letter addressed “To Whom it May Concern”, Dr.

Sivalingam stated, in pertinent part:

      [Appellant] has been followed here for pars plana vitrectomy for
      posterior vitreous detachment and significant floaters.
      Originally, he had a deceleration injury related to a car accident
      and he had dissected aortic aneurism and some time after that,
      he has also developed significant floaters . . .

           . . . based on my impression and for him to undergo the
      pars plana vitrectomy for significant floaters, probably the
      deceleration injury had something to do with the
      premature precipitation of posterior vitreous detachment.

([Appellant’s] Memorandum of Law in Support of his Response in Opposition

to Motion in Limine of [Appellees] to Preclude [Appellant’s] Experts from

Testifying at Trial who Have Failed to Submit Expert Reports, 5/07/15, at

Exhibit B) (emphasis added).




                                    -4-
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      Lastly, Robert C. Kleiner, M.D., also treated Appellant for his vision

problems. (See id. at Exhibit C). In a March 20, 2012 letter addressed to

Jeffrey Katzman, M.D., Dr. Kleiner stated, in pertinent part:

      As you know [Appellant] was involved in a serious automobile
      accident [one and one-half] years ago.                 Immediately
      following the accident, he noted a marked increase in
      floaters in both eyes . . . They are quite large and seemed to
      interfere significantly with his vision and lifestyle.
                                    *    *    *

      I told him that, unfortunately, the only way to relieve his visual
      symptoms would be to perform vitrectomy surgery and that we
      usually try to discourage vitrectomy surgery just to relieve
      vitreous floaters. However, he seems to be very bothered by his
      symptoms and they do seem to interfere with his lifestyle
      significantly. . . .

(Id.) (emphasis added).

      Subsequent to the filing of the complaint, the parties stipulated to

several discovery extensions. The parties ultimately agreed to complete all

discovery by January 30, 2015, and Appellant was to provide final expert

reports to Appellees by February 16, 2015. (See Second Joint Stipulation

for Extension of Discovery Deadlines, 11/03/14, at unnumbered page 1).

      Of relevance to this appeal, on March 30, 2015, Appellees filed a

motion for summary judgment arguing that Appellant could not prove a

causal connection between the accident and his injuries because of the lack




                                     -5-
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of expert medical testimony.2            (See [Appellees’] Motion for Summary

Judgment against [Appellant], 3/30/15, at 5-6 ¶¶ 14-19).           On May 6,

2015, Appellant filed a response to the motion.

       On April 17, 2015, Appellees filed a motion in limine. In the motion,

Appellees sought to preclude Appellant’s physicians from testifying as

experts at trial.        (See Motion in Limine of [Appellees] to Preclude

[Appellant’s] Experts from Testifying at Trial who have Failed to Submit

Expert Reports, 4/17/15, at 3-4 ¶¶ 10-17). Appellees averred that Appellant

had not served or produced any expert reports.           (See id. at 3 ¶ 10).

Appellant filed a response to the motion on May 7, 2015.               In his

memorandum of law, Appellant argued that his witnesses would testify as

his treating physicians, not as expert witnesses, and thus were not required

to submit expert reports.           (See [Appellant’s] Memorandum of Law in

Support of his Response in Opposition to Motion in Limine of [Appellees] to

Preclude [Appellant’s] Experts from Testifying at Trial who Have Failed to

Submit Expert Reports, 5/07/15, at unnumbered pages 5-6).

       On June 16, 2015, the trial court granted Appellees’ motion in limine

ordering that Appellant’s treating physicians, Drs. Bavaria, Sivalingam,
____________________________________________


2
  For the sake of completeness, although not at issue in the instant appeal,
we note that Appellees also filed a motion for partial summary judgment,
solely addressing the validity of Appellant’s claim for punitive damages.
(See [Appellees’] Motion for Partial Summary Judgment on [Appellant’s]
Punitive Damage Claims, 3/30/15, at 6-7 ¶¶ 24-28). The trial court denied
that motion on June 12, 2015.



                                           -6-
J-A17014-16


Kerson, and Kleiner “will not be permitted to give their respective opinions

concerning causation between the alleged negligence and the injuries

claimed.” (Order, 6/16/15, at 1). The trial court stated, “[e]xpert testimony

is clearly necessary in this case and [Appellant] does not deny it.” (Id. at 7

n.1).    Further, the court held that the reports by Appellant’s treating

physicians were insufficient to provide “competent medical testimony [of] a

causal link between the alleged negligence and the injuries claimed.” (Id. at

8) (citation omitted). That same day, the trial court denied the motion of

Appellees for summary judgment as moot based upon its grant of the

motion in limine. (See Order, 6/16/15, at unnumbered page 1).

        On July 14, 2015, the trial court conducted a conference call with the

parties, and during that call Appellant indicated that he still intended to

proceed to trial based on a theory of minor injuries sustained during the

accident.     (See [Appellees’] Motion for Summary Judgment against

[Appellant], 7/16/15, at 4 ¶¶ B and 14).

        On July 16, 2015, Appellees filed a second motion for summary

judgment, arguing that Appellant could not proceed on a “bumps and

bruises” theory because Appellant had elected the limited tort option and,

therefore, must provide evidence of “serious injury.” (Id. at 4 ¶¶ 14-16).

Appellant filed a response on August 17, 2015. In his response, Appellant

admitted that he could not proceed on a bumps and bruises theory because

of his election of limited tort.   (See [Appellant’s] Response to [Appellees’]


                                      -7-
J-A17014-16


Motion for Summary Judgment against [Appellant], 8/17/15, at 2).

However, Appellant took issue with the trial court’s grant of the motion in

limine, stating:

      However, [Appellant’s] heart, head [and] eye injuries are all
      serious injuries which vault the limited tort serious injury
      threshold. In that respect, [Appellant] respectfully disagrees
      with [the trial court’s] ruling pursuant to the Order dated June
      16, 2015, in which [Appellant’s] treating physicians were
      precluded from testifying as to causation relating to those
      serious injuries, in that, inter alia, the treating physicians were
      held to the standards of expert testimony, whereas [Appellant]
      intended on presenting the treating physicians’ testimony at trial
      as fact witnesses, based upon the physicians’ treatment notes
      and opinions rendered during their course of treatment of
      [Appellant]. . . .

(Id.) (quotation marks omitted).

      On September 17, 2015, the trial court granted the motion of

Appellees for summary judgment.       (See Order, 9/17/15, at unnumbered

page 1). The trial court held, based upon its prior ruling on the motion in

limine, that Appellant needed expert medical testimony to prove causation

and that the testimony of his treating physicians was insufficient to do so.

(See id. at unnumbered pages 3-4 n.1).

      On October 8, 2015, Appellant filed a motion for reconsideration. The

trial court denied the motion that same day.            On October 14, 2015,

Appellant filed the instant, timely notice of appeal.    On October 20, 2015,

the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely




                                     -8-
J-A17014-16


Rule 1925(b) statement on November 9, 2015. See id. On November 10,

2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

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

               1.    Whether the trial court abused its discretion and
       erred as a matter of law in granting [Appellees’] motion in limine
       precluding the testimony of [Appellant’s] treating physicians
       based solely upon the [t]rial [c]ourt’s review of the physicians’
       treatment notes which were not prepared in anticipation of
       litigation[?]

             2.    Whether the trial court erred in refusing to permit
       the treating physicians to testify, either at trial, outside the
       presence of the jury or at a Frye[3] Hearing, so that the treating
       physicians could present the entirety of their factual testimony,
       including what was meant by their treatment notes[?]

             3.   Alternatively, whether the treating physicians’
       treatment notes, if deemed an expert report, opined as to
       causation within a reasonable degree of medical certainty[?]

(Appellant’s Brief, at 2) (emphasis in original).

       On appeal, Appellant seeks reversal of both the trial court’s June 16,

2015 order granting the motion in limine filed by Appellees and its

September 17, 2015 order granting the motion for summary judgment filed

by Appellees. (See Appellant’s Brief, at 20).

       We briefly note our standards of review.
____________________________________________


3
   The Frye test, the standard which governs the admissibility of
scientifically-adduced expert evidence in Pennsylvania courts, was first
announced in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), and was
adopted by the Pennsylvania Supreme Court. See Commonwealth v.
Topa, 369 A.2d 1277, 1282 (Pa. 1977); see also Grady v. Frito-Lay, Inc.,
839 A.2d 1038 (Pa. 2003) (continuing to apply Frye rule in Pennsylvania).




                                           -9-
J-A17014-16


           A trial court’s decision to grant or deny a motion in limine
     is subject to an evidentiary abuse of discretion standard of
     review. Questions concerning the admissibility of evidence lie
     within the sound discretion of the trial court, and we will not
     reverse the court’s decision absent a clear abuse of discretion.
     An abuse of discretion may not be found merely because an
     appellate court might have reached a different conclusion, but
     requires a manifest unreasonableness, or partiality, prejudice,
     bias, or ill-will, or such lack of support so as to be clearly
     erroneous.      In addition, to constitute reversible error, an
     evidentiary ruling must not only be erroneous, but also harmful
     or prejudicial to the complaining party.

Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1095 (Pa. Super.

2016), appeal denied, 2016 WL 3767847 (Pa. filed July 7, 2016) (citation

omitted).

           Our scope of review of an order granting summary
     judgment is plenary. We apply the same standard as the trial
     court, reviewing all the evidence of record to determine whether
     there exists a genuine issue of material fact. We view the record
     in the light most favorable to the non-moving party, and all
     doubts as to the existence of a genuine issue of material fact
     must be resolved against the moving party. Only where there is
     no genuine issue as to any material fact and it is clear that the
     moving party is entitled to a judgment as a matter of law will
     summary judgment be entered.

            Motions for summary judgment necessarily and directly
     implicate the plaintiff’s proof of the elements of his cause of
     action. Thus, a record that supports summary judgment will
     either (1) show the material facts are undisputed or (2) contain
     insufficient evidence of facts to make out a prima facie cause of
     action or defense and, therefore, there is no issue to be
     submitted to the fact-finder. Upon appellate review, we are not
     bound by the trial court’s conclusions of law, but may reach our
     own conclusions. The appellate court may disturb the trial court’s
     order only upon an error of law or an abuse of discretion.

Id. at 1084-85 (citation omitted).




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        In his first issue, Appellant claims that the trial court erred as a matter

of law in applying Pennsylvania Rule of Civil Procedure 4003.54 and

____________________________________________


4
    Rule 4003.5 provides:

        (a) Discovery of facts known and opinions held by an expert,
        otherwise discoverable under the provisions of Rule 4003.1 and
        acquired or developed in anticipation of litigation or for trial, may
        be obtained as follows:

        (1) A party may through interrogatories require

           (A) any other party to identify each person whom the
           other party expects to call as an expert witness at trial and
           to state the subject matter on which the expert is expected
           to testify and

           (B) subject to the provisions of subdivision (a)(4), the
           other party to have each expert so identified state the
           substance of the facts and opinions to which the expert is
           expected to testify and a summary of the grounds for each
           opinion. The party answering the interrogatories may file
           as his or her answer a report of the expert or have the
           interrogatories answered by the expert. The answer or
           separate report shall be signed by the expert.

        (2) Upon cause shown, the court may order further discovery by
        other means, subject to such restrictions as to scope and such
        provisions concerning fees and expenses as the court may deem
        appropriate.

           (A) such restrictions as to scope and such provisions
           concerning fees and expenses as the court may deem
           appropriate, and

           (B) the provisions of subdivision (a)(4) of this rule.

        (3) A party may not discover facts known or opinions held by an
        expert who has been retained or specially employed by another
        party in anticipation of litigation or preparation for trial and who
(Footnote Continued Next Page)


                                          - 11 -
J-A17014-16



                       _______________________
(Footnote Continued)

      is not expected to be called as a witness at trial, except a
      medical expert as provided in Rule 4010(b) or except on order of
      court as to any other expert upon a showing of exceptional
      circumstances under which it is impracticable for the party
      seeking discovery to obtain facts or opinions on the same
      subject by other means, subject to such restrictions as to scope
      and such provisions concerning fees and expenses as the court
      may deem appropriate.

          Note: For additional provisions governing the production of
          expert reports in medical professional liability actions, see
          Rule 1042.26 et seq. Nothing in Rule 1042.26 et seq.
          precludes the entry of a court order under this rule.

      (4) A party may not discover the communications between
      another party’s attorney and any expert who is to be identified
      pursuant to subdivision (a)(1)(A) or from whom discovery is
      permitted under subdivision (a)(3) regardless of the form of the
      communications, except in circumstances that would warrant the
      disclosure of privileged communications under Pennsylvania law.
      This provision protects from discovery draft expert reports and
      any communications between another party’s attorney and
      experts relating to such drafts.

      (b) An expert witness whose identity is not disclosed in
      compliance with subdivision (a)(1) of this rule shall not be
      permitted to testify on behalf of the defaulting party at the trial
      of the action. However, if the failure to disclose the identity of
      the witness is the result of extenuating circumstances beyond
      the control of the defaulting party, the court may grant a
      continuance or other appropriate relief.

      (c) To the extent that the facts known or opinions held by an
      expert have been developed in discovery proceedings under
      subdivision (a)(1) or (2) of this rule, the direct testimony of the
      expert at the trial may not be inconsistent with or go beyond the
      fair scope of his or her testimony in the discovery proceedings as
      set forth in the deposition, answer to an interrogatory, separate
      report, or supplement thereto. However, the expert shall not be
      prevented from testifying as to facts or opinions on matters on
(Footnote Continued Next Page)


                                           - 12 -
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Pennsylvania Rule of Evidence 7025 to the treatment notes of his physicians

who were going to testify as fact witnesses. (See Appellant’s Brief, at 12).

He maintains that the Pennsylvania courts have allowed treating physicians

to offer expert opinions as to causation without being subjected to Rule

4003.5 so long as their opinions were not developed in anticipation of

litigation. (See id. at 14). Appellant argues that the treatment notes in the

instant matter included opinions as to causation, but were based upon the

physicians’ treatment of Appellant and not prepared in anticipation of

litigation, and thus the trial court erred in not allowing the physicians to offer

                       _______________________
(Footnote Continued)

        which the expert has not been interrogated in the discovery
        proceedings.

Pa.R.C.P. 4003.5.
5
    Pennsylvania Rule of Evidence 702 provides:

        A witness who is qualified as an expert by knowledge, skill,
        experience, training, or education may testify in the form of an
        opinion or otherwise if:

           (a) the expert’s scientific, technical, or other specialized
           knowledge is beyond that possessed by the average
           layperson;

           (b) the expert’s scientific, technical, or other specialized
           knowledge will help the trier of fact to understand the
           evidence or to determine a fact in issue; and

           (c) the expert’s methodology is generally accepted in the
           relevant field.

Pa.R.E. 702.



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expert opinions as to causation. (See id. at 15). Appellant amplifies this

theory in his reply brief, contending that an intervening Pennsylvania

Supreme Court decision, Polett v. Public Commc’ns. Inc., 126 A.3d 895,

910 (Pa. 2015), is dispositive of this matter. (See Appellant’s Reply Brief, at

1-4). We disagree.

        We briefly note that, in a negligence action, such as the instant one,

the burden is on the plaintiff to prove four elements:          “1. A duty or

obligation recognized by law.        2. A breach of the duty.       3. Causal

connection between the actor's breach of the duty and the resulting

injury. 4. Actual loss or damage suffered by complainant.” Lux v. Gerald

E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005), appeal

denied, 901 A.2d 499 (Pa. 2006) (citation omitted, emphasis in original).

Further,

              [i]t is beyond question that the mere existence of
        negligence and the occurrence of injury are insufficient to
        impose liability upon anyone as there remains to be proved the
        link of causation. . . . [E]ven when it is established that the
        defendant breached some duty of care owed the plaintiff, it is
        incumbent on a plaintiff to establish a causal connection between
        defendant’s conduct, and it must be shown to have been the
        proximate cause of plaintiff’s injury.

Id. (citation and quotation marks omitted).

        Appellant contends, relying on Polett, supra, that the trial court erred

in holding that his treating physicians could not render expert testimony as

to causation. (See Appellant’s Reply Brief, at 1-4). This Court has stated

that:

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            In a personal injury case, the plaintiff must prove the
      existence of a causal relationship between the injury complained
      of and the alleged negligent act to be entitled to recover for the
      injury. Generally, a plaintiff must prove causation by expert
      medical testimony. There is an exception, however, where there
      is an obvious causal relationship between the two. An obvious
      causal relationship exists where the injuries are either an
      immediate and direct or the natural and probable result of the
      alleged negligent act.    The two must be so closely connected
      and so readily apparent that a layman could diagnose (except by
      guessing) the causal connection. . . .

Lattanze v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. 1982) (citations,

emphasis and quotation marks omitted).

      Here, the trial court specifically held that expert medical testimony

was required because the connection between Appellant’s injuries and the

accident was not so closely related. (See Order, 6/16/15, at 7 n.1). At no

point in his brief does Appellant contest this holding. (See Appellant’s Brief,

at 11-20).

      However, our Supreme Court has held that fact witnesses, including

treating physicians can offer expert testimony, even if they have not

complied with Pa.R.C.P. 4003.5. In Miller v. Brass Rail Tavern, Inc., 664

A.2d 525, 531 (Pa. 1995), the Court held that a non-physician coroner,

testifying as a fact witness, could offer expert testimony as to time of death.

The Court stated:

      Coroner Wetzler was not called upon by [a]ppellant or his
      counsel to determine the facts surrounding Ronald, Jr.’s death.
      Rather, he had been summoned by the people of Clinton County
      to carry out the duties of his office. He was notified of the
      accident at approximately 7:30 a.m. by the County
      Communications Center, and after conducting an investigation,

                                    - 15 -
J-A17014-16


      he made a determination with respect to the time of death. His
      contact with the accident was completed well before this instant
      action was initiated.

Miller, supra at 531 (footnote omitted).

      In Polett, in late June 2006, the plaintiff underwent knee replacement

surgery on both legs. See Polett, supra at 899. On August 16, 2006, Dr.

Robert Booth, the plaintiff’s surgeon, examined her and found her to be

making better than average progress. See id. Because of this, Dr. Booth

provided the plaintiff’s name as a candidate to appear in a promotional video

for the manufacturer of the replacement knee. See id. The plaintiff agreed

and, on August 23, 2006, she appeared in the video; as part of the video,

she walked on a treadmill and rode an exercise bike. See id. at 900.

      Immediately following the filming of the video, the plaintiff’s condition

markedly deteriorated. See id. at 900-01. When Dr. Booth examined the

plaintiff approximately one month later, and on subsequent examinations,

Dr. Booth attributed the plaintiff’s progressively deteriorating condition to

riding the bike in the promotional video. See id. at 901-02. The plaintiff

ultimately filed suit against the manufacturer, the video company, and

others. See id. at 902.

      At trial, the trial court allowed Dr. Booth, testifying as a fact witness,

to offer expert testimony that riding the exercise bike for the video caused

the deterioration in her knees, despite the plaintiff’s failure to comply with

Pa.R.C.P. 4003.5. See id. at 904. The jury found in favor of the plaintiff


                                    - 16 -
J-A17014-16


and the defendants appealed; an en banc panel of this Court held, in part,

that the trial court erred in allowing Dr. Booth to offer testimony as to

causation. See id. at 906.

      Our Supreme Court disagreed, noting that at the time it made its

decision the trial court had in its possession Dr. Booth’s contemporaneous

treatment notes from 2006, as well as his deposition taken during the course

of litigation. See id. at 924. The Court agreed with the trial court that the

2006 treatment notes, written well before the commencement of litigation,

demonstrated that Dr. Booth was actively looking to determine the cause of

the plaintiff’s difficulties and expressly ruled out other possible causes. See

id. at 925. Thus, the Supreme Court held that the trial court did not err in

allowing Dr. Booth to offer expert testimony as to causation despite the

failure to comply with Pa.R.C.P. 4003.5. See id. at 925-28.

      However, the instant matter is factually distinct from both Miller and

Polett. Firstly, Appellant’s characterizations of the treating physicians’

documentation    as   treatment   notes   created   prior   to   litigation,   (see

Appellant’s Brief, at 12, 15-16), is questionable. Secondly, even assuming,

arguendo, that the documents constitute treatment notes not made in

anticipation of litigation, they are still insufficient.    They simply do not

demonstrate the detailed search for the causes of Appellant’s injuries with

the physician considering various possible causes for the injuries and ruling

them out before settling on the accident as a cause that our Supreme Court


                                     - 17 -
J-A17014-16


approved in Polett.         See id. at 925.        We discuss each doctor’s

documentation separately.

      Dr. Bavaria’s “note” was actually a letter written to a “cardiac

consultant” on September 18, 2012, more than two years after the accident

and   less    than   two   months   prior   to   commencement     of   litigation.

([Appellant’s] Memorandum of Law in Support of his Response in Opposition

to Motion in Limine of [Appellees] to Preclude [Appellant’s] Experts from

Testifying at Trial who Have Failed to Submit Expert Reports, 5/07/15, at

Exhibit A).    In it, he simply states that Appellant’s heart problems were

“most probable secondary to valvular dysfunction.          We know that the

ascending aorta is the second most common site for intimal disruption after

deceleration trauma.”      ([Appellant’s] Memorandum of Law in Support of his

Response in Opposition to Motion in Limine of [Appellees] to Preclude

[Appellant’s] Experts from Testifying at Trial who Have Failed to Submit

Expert Reports, 5/07/15, at Exhibit A). He then notes that it is impossible to

“fully ascertain” why Appellant developed heart problems but states “that

there is a significant relationship to his deceleration trauma.” (Id.).

      Dr. Sivalingam’s “note” was also in letterform, addressed “To Whom it

May Concern,” on October 10, 2012, also more than two years after the

accident and less than one month prior to the commencement of litigation.

(Id. at Exhibit B). Further, the language of the letter makes it clear that it

was an advocate’s letter drafted to persuade some unknown to allow


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Appellant to undergo eye surgery, as it states, “based on my impression and

for him to undergo the pars plana vitrectomy for significant floaters[.]”

(Id.) (emphasis added).       Dr. Sivalingam’s letter notes that Appellant

developed floaters “some time after” the accident. (Id. at Exhibit B). Dr.

Sivalingam does not offer a detailed opinion regarding causation simply

saying that “probably” the accident had “something to do with the

premature precipitation” of the floaters. (Id.).

      Dr. Kleiner’s “note” was also in the form of a letter addressed to

another physician, dated March 20, 2012, over a year and one-half after the

accident and less than eight months prior to the commencement of

litigation. (See id. at Exhibit C). It appears to contradict Dr. Sivalingam’s

letter as it reiterates Appellant’s claim that he noticed “a marked increase in

floaters” immediately following the accident. (Id. at Exhibit C). At no point

does Dr. Kleiner himself offer an opinion that the accident caused the

floaters.

      Lastly, Dr. Kerson’s document does appear to be a treatment note

written closer in time to the accident rather than to the litigation. However,

it simply notes the details of Appellant’s accident. (See id. at Exhibit D). In

his assessment he states Appellant’s symptoms “likely reflect” post-

concussion syndrome. (Id.).

      These documents are nothing like the series of contemporaneous

treatment notes deemed acceptable in Polett. See Polett, supra at 924-


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25. Rather than resembling the conscientious search for a cause approved

of in Polett, these documents appear closer to the type of report this Court

rejected in Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 2004).            In

Kurian, the parents of a child with Down’s syndrome filed a medical

malpractice suit claiming that his doctors failed to evaluate properly and

repair the child’s heart problems, causing permanent damage. See Kurian,

supra at 153.     As in the instant matter, the plaintiffs in Kurian never

identified any expert witnesses. See id. Instead, plaintiffs sought to have

the child’s treating physician testify as to causation. See id. at 155-56. In

support of this, the plaintiffs offered a single treatment note in which the

treating physician stated that the defendant “apparently missed” the child’s

problem when evaluating an echocardiography report. Id. at 156.

      While agreeing that the physician completed this report “without the

anticipation of litigation,” something that is questionable in the instant

matter, we concluded that this single statement was insufficient.        Id.

(internal quotation marks omitted). We stated that it was hardly surprising

that the treating physician’s report did not contain a detailed assessment of

proximate cause noting, “[a] doctor is concerned with treating his patients,

not about whether a prior doctor’s breach of a particular standard of care

was the factual cause of his patient’s injuries.” Id.

      Here, it is evident that Appellant’s treating physicians were not

engaged in searching for the cause of Appellant’s medical problems, as was


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the physician in Polett. Rather, they were “concerned with treating [their]

patient,” not determining whether the accident was the proximate cause of

Appellant’s injuries.   Kurian, supra at 156.     Thus, our Supreme Court’s

decision in Polett does not mandate the reversal of the trial court’s decision.

Instead, it is more akin to the report in Kurian. Therefore, the trial court

did not abuse its discretion in granting the motion in limine filed by

Appellees.      See Dibish, supra at 1095.    Appellant’s first issue does not

merit relief.

      In his second issue, Appellant contends that if the treatment notes did

not contain the “requisite degree of medical certainty” with respect to

causation it was incumbent upon Appellees to depose the treating physicians

so that “they would have extrapolated upon and clarified their treatment

notes and statements.”      (Appellant’s Brief, at 15).   Moreover, Appellant

believes that the trial court should have held a Frye hearing so that its

decision would not have been solely based upon the “four [] corners of the

treatment notes.” (Id. at 16; see also id. at 15-16).

      Initially, we reject Appellant’s contentions that it was either incumbent

upon Appellees to depose the treating physicians and/or that the trial court

was required to hold a Frye hearing so as to amplify the information

contained in the treating physician notes.

      As stated above, it is the plaintiff’s burden to prove causation in a

personal injury case, not the defendant’s burden. See Lux, supra at 1286.


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It was not incumbent upon Appellees to depose the treating physicians in

order to augment Appellant’s evidence with respect to causation. See id.

      Moreover, in their first motion for summary judgment, Appellees

specifically claimed that Appellant could not prove a causal connection

between his injuries and Appellees’ alleged negligence.       (See [Appellees’]

Motion for Summary Judgment against [Appellant], 3/30/15, at 5-6 ¶¶ 14-

19). While the trial court denied the motion as moot, it did so because of its

grant of the motion in limine.     (See Order, 6/16/15, at 1).      Thus, when

Appellees filed a second motion for summary judgment, Appellant was well

aware that the issue of causation was central to his case and that the trial

court had already found that the treating physicians’ notes were insufficient

to demonstrate causation. The Pennsylvania Rules of Civil Procedure provide

that in response to a motion for summary judgment the responding party

must point to “evidence in the record establishing the facts essential to the

cause of action or defense which the motion cites as not having been

produced.” Pa.R.C.P. 1035.3(a)(2). Thus, it was Appellant’s responsibility

to refute the claim that there was insufficient evidence of causation by

producing such evidence. The trial court did not have an obligation to hold a

hearing wherein Appellant hoped to produce such evidence.               See id.

Appellant’s second claim lacks merit.

      In his final claim, Appellant alleges that the trial court erred in finding

that Dr. Bavaria and Dr. Kerson’s notes did not provide an opinion on


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causation to a reasonable degree of medical certainty.      (See Appellant’s

Brief, at 17-20). We disagree.

     We have held that, in order to testify with respect to causation, the

expert testimony must be made to a reasonable degree of medical certainty.

See Cohen v. Albert Einstein Med. Ctr., 592 A.2d 720, 723 (Pa. Super.

1991), appeal denied, 602 A.2d 855 (Pa. 1992). In Cohen, we explained:

            When a party must prove causation through expert
     testimony the expert must testify with reasonable certainty that
     in his professional opinion, the result in question did come from
     the cause alleged. An 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.

            The issue is not merely one of semantics. There is a
     logical reason for the rule. The opinion of a[n] . . . expert is
     evidence. If the fact finder chooses to believe it, he can find as
     fact what the expert gave as an opinion. For a fact finder to
     award damages for a particular condition to a plaintiff it must
     find as a fact that the condition was legally caused by the
     defendant’s conduct. . . [I]t is the intent of our law that if the
     plaintiff’s . . . expert cannot form an opinion with sufficient
     certainty so as to make a [professional] judgment, there is
     nothing on the record with which a [factfinder] can make a
     decision with sufficient certainty so as to make a legal judgment.
     However, to make an admissible statement on causation, an
     expert need not testify with absolute certainty or rule out all
     possible causes of a condition. Expert testimony is admissible
     when, taken in its entirety, it expresses reasonable certainty that
     the accident was a substantial factor in bringing about the injury.
     The expert need not express his opinion in precisely the same
     language we use to enunciate the legal standard. That an expert
     may, at some point during his testimony, qualify his assertion
     does not necessarily render his opinion inadmissibly speculative.

Id. at 723-24 (citations and quotation marks omitted).




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      Here, the reports of Drs. Bavaria and Kerson do not meet this

standard. Dr. Kerson’s opinion that Appellant’s symptoms after the accident

“likely reflect[]” post-concussive syndrome was simply not rendered with the

required degree of medical certainty. ([Appellant’s] Memorandum of Law in

Support of his Response in Opposition to Motion in Limine of [Appellees] to

Preclude [Appellant’s] Experts from Testifying at Trial who Have Failed to

Submit Expert Reports, 5/07/15, at Exhibit D); see Cohen, supra at 723-

24. While Dr. Bavaria’s conclusion that there is a “significant relationship”

between the accident and Appellant’s heart problems is closer to an opinion

rendered with the requisite degree of medical certainty, it is also insufficient.

([Appellant’s] Memorandum of Law in Support of his Response in Opposition

to Motion in Limine of [Appellees] to Preclude [Appellant’s] Experts from

Testifying at Trial who Have Failed to Submit Expert Reports, 5/07/15, at

Exhibit A); see also Albert v. Alter, 381 A.2d 459, 470 (Pa. Super. 1977)

(finding that the phrase “very highly probable that it caused the result” was

not sufficient to demonstrate causation).     Thus, because these reports did

not contain the requisite degree of medical certainty, the trial court did not

err in finding that they were insufficient to demonstrate causation.        See

Cohen, supra at 723; Albert, supra at 470. Appellant’s final claim lacks

merit.

      Thus, for the reasons discussed above, we find that the trial court did

not abuse its discretion in granting the motion in limine filed by Appellees.


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See Dibish, supra at 1095. Therefore, because Appellant failed to prove

causation, the trial court neither committed an error of law nor abused its

discretion in granting summary judgment. See id. at 1085.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2016




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