J-A32029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONALD J. CASPER                                      IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

SHANNON RALIA HALSTEAD AND
LYNETTE HALSTEAD

                                                           No. 3714 EDA 2015


              Appeal from the Judgment Entered January 20, 2016
              in the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): No. 02966 December Term, 2013


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                                 FILED MARCH 03, 2017

        Appellant, Donald J. Casper, appeals the January 20, 2016 order

entering a nonsuit in favor of Appellees. We affirm.

        On March 19, 2013, Appellee Shannon Halstead rear-ended Appellant

while he was stopped at a stop sign. Notes of Testimony (N. T.), 10/21/15,

at 83-85. Appellant was unsure if he hit his knee during the impact. Id. at

121-122. Appellant did not experience pain after the accident. Id. at 87.

The next day, Appellant experienced soreness on his right side and consulted

with an attorney. Id. at 87, 91. After five or six days, Appellant pursued

medical treatment.       Id. at 87, 91.        Appellant ended treatment in August

2013, but continued to experience pain in his right knee. Id. at 98.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        Appellant commenced this negligence action on December 13, 2013,

and it was assigned to the compulsory arbitration program.          A panel of

arbitrators found in favor of Appellant against Appellee Shannon Halstead

only.   Appellee appealed to the Court of Common Pleas.        Appellant filed a

motion for extraordinary relief and was granted a discovery extension. See

Revised Case Management Order, 5/18/15, at 1.            In August 2015, one

month after the discovery deadline of July 6, 2015, Appellant provided

Appellee with the expert report of Dr. Frederick Lieberman, whom he

intended to call as an expert witness at trial.        See Motion in Limine,

8/31/15, at ¶¶ 10-11. The report indicated that Appellant consulted with Dr.

Lieberman for the first time on July 23, 2015. Id.

        Prior to trial, Appellee moved to preclude Appellant from 1) calling his

expert witness; 2) referring to expert reports at trial; and 3) introducing MRI

and X-ray reports, as these reports were produced after the discovery

deadline and performed the same day as Dr. Lieberman’s deposition. See

Motion in Limine, 8/31/15, at ¶ 19; Motion in Limine, 10/13/15, at ¶¶ 11-18.

Appellant argued that Dr. Lieberman was Appellant’s treating physician, not

an expert, and was not subject to Pa.R.C.P. 4003.5(b). Response to Motion

in Limine, 10/5/15, at ¶ 17. The trial court granted Appellee’s motion and

precluded Dr. Lieberman’s testimony and introduction of the MRI and X-ray

reports. N. T. at 13-14.

        At the conclusion of Appellant’s case-in-chief, Appellee moved for

nonsuit, arguing that without medical expert testimony, Appellant could not

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sustain his burden of proof. N. T. at 163. The trial court granted nonsuit in

favor of Appellee.    Id. at 168-169.   Appellant filed a motion for post-trial

relief, seeking removal of the entry of nonsuit and a new trial, which the trial

court denied.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.         The trial court issued a

responsive opinion.

      On appeal, Appellant raises two issues for our review:

      1. Did the trial court err as a matter of law or abuse its
      discretion when it granted [Appellee’s] motion in limine to
      preclude [Appellant’s] treating physician, Dr. Frederick
      Lieberman, M.D., from testifying at trial (and when it
      subsequently denied [Appellant’s] motion for post-trial relief),
      where, among other things, the record unequivocally provides
      that the extraordinary prejudice suffered by [Appellant] resulting
      from the trial court’s order substantially outweighed any
      potential prejudice to [Appellee]?

      2. Did the trial court err as a matter of law or abuse its
      discretion when it denied [Appellant’s] motion to remove entry
      of nonsuit and motion for a new trial, and found that medical
      testimony is [sic] required to establish that [Appellant’s] knee
      pain—which manifested only hours after the rear-end car
      accident—was caused by the collision?

Appellant’s Brief at 7.

      Appellant first claims that the trial court erred in precluding Dr.

Lieberman’s testimony, as he was a treating physician, and not an expert

witness subject to Pa.R.C.P. 4003.5. See Appellant’s Brief at 15. Appellant

argues that even if Dr. Lieberman was an expert witness, the court should

have imposed a less severe sanction than the dismissal of the action. Id.


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     The admission or exclusion of evidence, including the admission of

testimony from an expert witness, is within the sound discretion of the trial

court. McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super.

2000).   We may only reverse upon a showing that the trial court clearly

abused its discretion or committed an error of law.             Id.    Further,

Pennsylvania Rule of Civil Procedure 4003.5 provides, in pertinent part:

     (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.

           …

           (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 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


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           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.

           …

      (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.

See Pa.R.C.P. 4003.5.

     A doctor may serve as either a treating physician, an expert witness,

or in both capacities; the distinction being whether his opinions were

developed with an eye to litigation. See, e.g., Miller v. Brass Rail Tavern,

Inc., 664 A.2d 525, 532 (Pa. 1995); Kurian ex rel. Kurian v. Anisman,

851 A.2d 152, 156 (Pa. Super. 2004); Feingold v. Southeastern Transp.

Authority, 517 A.2d 1270, 1271 (Pa. 1986).          Where opinions are not

acquired or developed with an eye toward litigation, Pa.R.C.P. 4003.5 is

inapplicable. Jahanshahi v. Centura Dev. Co., 816 A.2d 1179, 1185 (Pa.

Super. 2003).

     The record reflects that Appellant was injured in a motor vehicle

accident on March 19, 2013.     The discovery deadline was July 6, 2015.

Appellant first consulted with Dr. Lieberman on July 23, 2015. N. T. at 8.

Appellant did not disclose Dr. Lieberman’s report until August 6, 2015. Dr.

Lieberman’s narrative report concluded Appellant’s injuries were caused by


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the accident and this conclusion was made “with a reasonable degree of

medical certainty.”    See Motion in Limine, 8/31/15, Exhibit A.            Appellant

intended to call Dr. Lieberman to “testify with regard to causation” and

admitted that Dr. Lieberman would be qualified as an expert. N. T. at 9, 11.

Accordingly, the trial court did not err in concluding that Dr. Lieberman was

an expert witness retained with an eye toward litigation, subject to the

disclosure requirements of Pa.R.C.P. 4003.5. Kurian, 851 A.2d at 156.

      If an expert witness’s identity is not disclosed in compliance with the

Rules of Civil Procedure, he shall not be permitted to testify on behalf of the

party at the trial. Pa.R.C.P. 4003.5 (emphasis added); see also Feingold,

517 A.2d at 1273. 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. Id. At

no   time   did   Appellant   identify   or    make   argument      on   extenuating

circumstances that prevented him from complying with the discovery rules

and producing Dr. Lieberman’s report prior to the discovery deadline.

Indeed, his entire argument is premised on the flawed notion that Dr.

Lieberman’s report was not subject to the discovery rules.

      Nevertheless,    Appellant    argues     that   the   trial   court   did   not

appropriately consider certain factors balancing the facts and circumstances

of the case to determine the prejudice to each party prior to precluding the

testimony of a witness. See Appellant’s Brief at 18-19 (citing Feingold, 517

A.2d at 1273).      However, Appellant’s argument that the court did not

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appropriately consider the prejudice to each party is misplaced.   Feingold

requires the consideration of prejudice and surprise to the party against

whom the excluded witnesses would have testified, not the prejudice to the

party presenting the witness. Feingold, 517 A.2d at 1273.

      Here, the trial court properly examined whether admitting the

testimony of Dr. Lieberman would be prejudicial to Appellee. The testimony

of a witness should not be precluded in the absence of prejudice. Brown v.

Trinidad, 111 A.3d 765, 774 (Pa. Super. 2015).      Appellee was prejudiced

by Appellant’s failure to disclose Dr. Lieberman’s testimony, as she prepared

for trial under the assumption Appellant would not be presenting an expert

witness or additional diagnostic imaging.        Appellee was denied the

opportunity to retain and disclose an expert to rebut Appellant’s testimony,

adequately cross examine Dr. Lieberman, or have timely access to all of the

information in Appellant’s reports.

      Further, at the time of trial the case had already proceeded for over

three years.    Appellant had already been granted a discovery deadline

extension. Where case management deadlines are violated, and the other

party suffers prejudice due to an unjustified delay, sanctions are proper.

Kurian, 851 A.2d at 162.      Accordingly, the trial court did not abuse its

discretion in concluding that Appellee would have been prejudiced by the

introduction of the testimony and the prejudice could not be cured. Id.

      Next, Appellant claims that expert testimony was not required to

establish causation because the connection between the negligent act and

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the pain was obvious. See Appellant’s Brief at 23. Accordingly, he argues

that the trial court erred in granting a nonsuit in Appellee’s favor. Id.

      The standard and scope of review in an appeal from the entry of

nonsuit is well established:

      A motion for compulsory non-suit allows a defendant to test the
      sufficiency of a plaintiffs’ evidence and may be entered only in
      cases where it is clear that the plaintiff has not established a
      cause of action; in making this determination, the plaintiff must
      be given the benefit of all reasonable inferences arising from the
      evidence. When so viewed, a non-suit is properly entered if the
      plaintiff has not introduced sufficient evidence to establish the
      necessary elements to maintain a cause of action; it is the duty
      of the trial court to make this determination prior to the
      submission of the case to the jury. When this Court reviews the
      grant of a non-suit, we must resolve all conflicts in the evidence
      in favor of the party against whom the non-suit was entered.

      A compulsory non-suit is proper only where the facts and
      circumstances compel the conclusion that the defendants are not
      liable upon the cause of action pleaded by the plaintiff.

Parker v. Freilich, 803 A.2d 738, 744–45 (Pa. Super. 2002) (internal

citation omitted).   An order denying a motion to remove a compulsory

nonsuit will be reversed on appeal only for an abuse of discretion or error of

law.” Dietzel v. Gurman, 806 A.2d 1264, 1268 (Pa. Super. 2002).

      “To establish a viable cause of action in negligence the pleader must

aver in his complaint (1) a duty, (2) a breach of that duty, (3) a causal

relationship between the breach and the resulting injury, (4) and actual

loss.” Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super. 2011) (internal

quotation marks and citation omitted). The law in this regard is well settled.

Generally, in a personal injury case, a plaintiff must prove causation by


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expert medical testimony.     Lattanze v. Silverstrini, 448 A.2d 605, 608

(Pa. Super. 1982). However, where there is an obvious causal relationship

between the two, such testimony is not required.       Lattanze, 448 A.2d at

608.   An obvious causal relationship exists where the injuries are either

“immediate and direct” or the “natural and probable” result of the alleged

negligent act. Id. “The two must be ‘so closely connected and so readily

apparent that a layman could diagnose (except by guessing) the causal

connection…’” See Smith v. German, 253 A.2d 107, 109 (Pa. 1969).

       In the instant case, such an obvious causal relationship did not exist.

Appellant was involved in a car accident and stated that he “felt fine”

immediately after the accident. N. T. at 87. He did not remember if he hit

his leg during the impact.      Id. at 121-122.      Appellant did experience

soreness on his right side the next day, but did not seek medical attention

until five or six days later. Id. at 87, 91. He treated for approximately four

months. Id. at 98. Based upon the above testimony, and with the absence

of an expert report as to causation, Appellant could not demonstrate such a

closely connected and readily apparent connection that a layman could

diagnose the cause of his knee pain.       Accordingly, the trial court did not

abuse its discretion in granting a nonsuit at the close of Appellant’s case in

chief. Dietzel, 806 A.2d at 1268.

       Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




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