J-A22017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DAWINE PAIH AND STEPHEN L. TOGBA,             IN THE SUPERIOR COURT
    JR., INDIVIDUALLY AND AS PARENTS                        OF
    AND GUARDIANS OF STEPHEN L.                        PENNSYLVANIA
    TOGBA, III, A MINOR ON BEHALF OF
    THEMSELVES INDIVIDUALLY AND ON
    BEHALF OF STEPHEN L. TOGBA, III, A
    MINOR

                             Appellant

                        v.

    ANANDIVOR NORONHA, M.D., A.K.A.,
    A.I. NORONHA, M.D., AND/OR
    ANANDPRAKASH NORONHA, M.D., AND
    DELAWARE COUNTY MEMORIAL
    HOSPITAL, A MEMBER OF CROZER-
    KEYSTONE HEALTH SYSTEM

                             Appellee                No. 3584 EDA 2016


                Appeal from the Order Dated November 15, 2016
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 10-12873


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

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 25, 2017

        Dawine Paih and Stephen L. Tobga, Jr., individually and as parents and

guardians of Stephen L. Togba, III, a minor (collectively, “Appellants”)

(individually, “Paih” or “Baby Togba”), appeal from the order denying their




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*   Retired Senior Judge assigned to the Superior Court.
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motion for post-trial relief1 following a jury verdict in favor of Appellees,

Anandivor Noronha, M.D. and Delaware County Memorial Hospital (“DCMH”),

in the underlying medical malpractice action.    After careful review, we are

constrained to affirm.

       On June 16, 2008, Paih presented to DCMH in labor.           As labor

progressed, signs of fetal distress occurred. By the time the delivery team

recognized the emergency, they were forced to perform a vacuum extraction

of Baby Togba.        After delivery, Baby Togba received care at Jefferson

University Hospital as a result of hypoxic ischemic encephalopathy, damage

to cells in the central nervous system from inadequate oxygen.2      In 2009,

Baby Togba was diagnosed with cerebral palsy secondary to his birth trauma;

he has multiple, severe neurologic deficits which may be permanent.

       On September 24, 2010, Appellants filed a medical malpractice action

asserting that Appellees were negligent in the entire course and care and

overall management of the labor and delivery process during the birth of their




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1 Following the denial of post-trial motions, Appellants praecipied to have
judgment entered on the jury’s defense verdict. See Praecipe to Enter
Judgment, 12/22/16; see also Pa.R.C.P. 227.4 (entry of judgment following
verdict of jury).

2 Hypoxic ischemic encephalopathy can later result in cerebral palsy. See
http://www.medicinenet.com/script/main/art.asp?articlekey=3875        (last
visited on 9/28/17).



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son.3    During jury selection, Appellees used two of their four preemptory

challenges to strike the only two African-American jurors on the jury panel.

Appellants raised a Batson4 challenge that the court ultimately denied.

Following jury selection, Appellants moved to preclude Appellees from eliciting

testimony from their expert witness that there is no epidemiological evidence

that fetal monitoring has eliminated or reduced the rates of cerebral palsy.

The court denied Appellants’ motion in limine. During trial, Appellants again

objected to this testimony, as well as Appellees’ cross-examination of their

standard of care expert on the issue of global cerebral palsy rates.       Both

objections were overruled.

        Following a one-day jury trial, a defense verdict was returned.

Appellants filed timely post-trial motions that the court denied. On November

22, 2016, Appellants filed a timely appeal and court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal. They raise the following

issues for our consideration:

        (1)   Whether the trial court erred in permitting testimony that
              there is no epidemiological evidence showing that fetal
              monitoring has reduced the rates of cerebral palsy in the
              population as a whole, where the issue in the case was
              whether the [Appellees] were negligent in managing the
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3Trial originally commenced on April 4, 2014. However, on April 17, 2014, a
mistrial was declared following a deadlocked jury. Over two years later the
case proceeded to the instant trial.

4 Batson v. Kentucky, 76 U.S. 79 (1986). We note that Batson was
extended to civil cases. See Edmonson v. Leesville Concrete Co., 500 U.S.
614 (1991) (Batson applies in civil case with respect to classifications based
on ancestry or skin color).

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            labor and delivery of one baby, [Appellants’] son, Stephen
            Togba, III, and where there is no logical connection between
            statistics purporting to show global rates of cerebral palsy
            and any material facts in this case.

      (2)   Whether permitting testimony that there is no
            epidemiological evidence showing that fetal monitoring has
            reduced the rates of cerebral palsy in the population as a
            whole prejudiced the [Appellants] by influencing the jury’s
            no-negligence verdict.

      (3)   Whether the trial court erred in violation of Batson v.
            Kentucky, 76 U.S. 79[] (1986), and Edmonson v.
            Leesville Concrete, 500 U.S. 614 [] (1991)[,] by denying
            [Appellants’] motion to empanel Juror #4, where
            [Appellees] exercised two of their four peremptory
            challenges to strike the only two African-American members
            of the venire, and where the reasons given for striking Juror
            #4 were blatantly pretextual.

Appellants’ Brief, at 5.

      Appellants first argue that the trial court impermissibly admitted

irrelevant testimony from Appellees’ expert, Robert Debbs, D.O., and that the

probative value of this testimony was substantially outweighed by the danger

of unfair prejudice.       Specifically, Appellees assert that admission of this

evidence served to confuse and mislead the jury by diverting its attention from

the real issue in the case – whether Appellees’ conduct fell below the standard

of care in this matter by: improperly administering Pitocin causing the baby

to be deprived of oxygen; failing to communicate properly in the labor and

delivery room; and failing to deliver the baby after unsuccessful attempts at

intrauterine resuscitation.

      “Decisions regarding admission          of expert testimony, like     other

evidentiary decisions, are within the sound discretion of the trial court, and an


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appellate court may reverse only if it finds an abuse of discretion or error of

law.” Hyrcza v. West Penn Allegheny Health Sys., 978 A.2d 961, 972

(Pa. Super. 2009) (citation omitted).            To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party. McManamon v. Washko, 906 A.2d 1259, 1269-

70 (Pa. Super. 2006).

       Instantly, the trial court determined that there was no error in admitting

Dr. Debbs’ testimony for two reasons.             First, the court noted that this

testimony went to causation, and, because the jury did not reach this issue,5

any alleged error would have been harmless. Second, the court noted that

Dr. Debbs also opined on other causation matters, such as testifying that

Appellees’ management of labor and delivery was within the appropriate

standard of care and that Baby Togba’s injury could have occurred prior to

Paih’s admission to the hospital. It is also important to note that, in their

amended complaint, Appellants alleged that Appellees’ negligence was based,

in part, upon “[f]ailing to recognize and respond to the non-reassuring fetal

heart tracings [and f]ailing to properly document the fetal heart tracings and

notify the physicians of the same.”                Plaintiffs’ Amended Complaint,

11/24/2010, at 6 ¶ 26(i) & (j). Thus, the topic of how fetal monitoring played

a part in Appellees’ alleged negligent care of Paih and Baby Togba was relevant
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5 The verdict slip reflects that the jury answered “no” to whether Appellees’
conduct fell below the standard of care in the instant case. Verdict Slip,
7/13/16, at ¶ 1. Accordingly, they never reached the issues of factual cause
or damages.

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to the case. See Expert Report of Robert Debbs, D.O., 10/10/15, at 15 (“[A]s

the plaintiffs’ experts collectively suggest, one first has to prove that

intervening in labor and delivery based solely on fetal heart rate patterns, can

actually prevent cerebral palsy.”); see also Pa.R.E. 401 (relevancy).

      However, even if the evidence were deemed to be irrelevant, we would

not conclude that its probative value was outweighed by unfair prejudice. See

Pa.R.E. 403 (court may exclude relevant evidence if probative value is

outweighed by danger of unfair prejudice, confusing issues, misleading jury,

undue delay, wasting time, or needlessly presenting cumulative evidence); id.

comment (unfair prejudice means a tendency to suggest decision on an

improper basis or divert the jury’s attention away from its duty to weighing

the evidence impartially). Doctor Debbs testified about other medical findings

specific to Baby Togba that could have caused his injuries and, accordingly,

could have resulted in a no-negligence verdict. See N.T. Jury Trial, 7/1/16,

at 11-12 (Debbs testifying to inflammatory cells destroying blood vessels in

brain causing lack of oxygen to brain and, ultimately, brain damage); id. at

12 (meconium passage is sign of fetal stress predating Paih’s admission to

hospital); id. at 14 (hypoxic brain injury can often occur within 24 hours of

admission to hospital before birth, then show recovery, and then deteriorate)

id. at 14-15 (findings in Baby Togba’s placenta, suggesting causation factors

which predated Paih’s admission to hospital, often lead to infections and

inflammations and, possibly, brain injury). Finally, because Appellants were




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permitted to rebut Dr. Debbs’ testimony, as well as cross-examine him on the

issue, the risk of unfair prejudice was mitigated.

       Appellants next argue that it was error to permit Appellees to cross-

examine their expert, Dr. Hankins, on articles6 he had written that concerned

the same issue, whether fetal monitoring had reduced the rates of cerebral

palsy in the general population. In addition, Appellants claim that the trial

court improperly precluded them from redirect examination of Dr. Hankins on

the issue of causation, after Appellees had extensively cross-examined him on

the fetal monitoring issue.

       It is well established that an expert witness may be cross-examined on

the contents of a publication upon which he or she has relied in forming an

opinion and on other publications the expert acknowledges to be standard

works in the field. Majdic v. Cincinnati Machine Co., 537 A.2d 334, 339

(Pa. Super. 1988). Notably, the publication or article is not admitted for the

truth of the matter asserted, but only to challenge the credibility of the

witness’ opinion and the weight to be accorded thereto. Id.



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6 In Dr. Debbs’ expert report, he noted that Dr. Hankins was “a frequent
contributor [to] medical literature [and] has repeatedly endorsed the following
statement: No policy or intervention has been shown to reduce the risk of
cerebral palsy in late pregnancy. The rate of cerebral palsy . . . has remained
constant over the last 40 years despite a quadrupling of caesarean section
rates, the introduction of electronic fetal minoring and better obstetric and
neonatal care.” Expert Report of Robert Debbs, D.O., 10/10/15, at 15-16,
citing Gary D. V. Hankins, Only an Expert Witness can Prevent Cerebral Palsy:
The Future of Childbirth (2006).

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       Here, the court properly permitted Appellees to cross-examine Dr.

Hankins on literature he had authored that not only discussed possible causes

of cerebral palsy, but also explained that the increase in caesarean sections

had not decreased the rate of cerebral palsy births and that cerebral palsy has

not been proven to be preventable by delivering a baby in the earlier stages

of labor. N.T. Jury Trial, 6/28/16, at 197-203; id. at 203 (“”Cerebral palsy

due to birth asphyxia has been shown to rarely be preventable. That is true.”).

Both of these issues challenged Dr. Hankins’ credibility and the weight to be

given his testimony on the issue of Appellees’ negligence in the instant case.

Contrary to the Appellees’ defense, Dr. Hankins’ expert report specifically

opined that the cause of Baby Togba’s injuries was not from an injury

sustained prior to hospital admission, but rather the “interpretation of the fetal

monitoring, failure to timely deliver and use of oxytocin.” Expert Report of

Gary Hankins, M.D., 9/8/15, at 3. Under such circumstances, we cannot find

the use of articles and publications authored by Dr. Hankins to be an abuse of

the trial court’s discretion or an error of law. Hyrcza, supra.

       With regard to the prejudicial nature of the titles of the publications and

articles,7 we similarly find no abuse of discretion.      Again, the challenged

evidence was a fair response to Appellants’ theory of liability. Moreover, to

prevent the defense from using articles published by the Appellants’ own

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7Those titles were “Who Will Deliver our Grandchildren,” “Implications of
Cerebral Palsy Litigation,” and “Obstetric Litigation is Asphyxiating our
Maternity Service.”

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expert would fly in the face of fairness. Finally, Dr. Hankins was permitted to

fully explain the articles and any change of opinion he had formed as it related

to the instant case. See N.T. Jury Trial, 6/23/16, at 82 (“[A]re you suggesting

that your opinions as to the cause of cerebral palsy have changed over the

years? They have.”); id. at 84 (“And you’re telling us that your - - the opinions

that you’ve put in these papers . . . have now changed, sir? Certainly they’ve

changed across time. Yes, sir.”).

      Appellants next complain that the trial court precluded them from asking

Dr. Hankins, on redirect examination, if he “ha[d] an opinion that you can

express, with reasonable medical certainty, whether [cerebral palsy] could

have been prevented under the facts of this case as you know them?” N.T.

Jury Trial, 6/23/16, at 259. Appellants assert that Appellees opened the door

to the issue of causation on cross-examination and, as a result, they should

have been able to pursue this line of questioning on redirect examination.

      “It is the function of redirect examination to explain, enlarge upon, or

qualify new matter brought out by cross-examination, so that the jury will not

receive distorted impression of facts from such testimony.” Commonwealth

v. Kauffman, 38 A.2d 425, 428 (Pa. Super. 1944). The scope of redirect

examination is largely within the discretion of a trial court. Commonwealth

v. Dreibelbis, 426 A.2d 1111 (Pa. 1981). “[W]hen a trial court indicates the

reason for its decision, an appellate court’s scope of review is limited to an

examination of the stated reason.” Commonwealth v. Davis, 17 A.3d 390,

395 (Pa. Super. 2011) (quotation and citations omitted).

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      Here, Appellees did ask Dr. Hankins, “[s]o you would agree that in this

case this cerebral palsy could have been a developmental event that was

unpreventable, as you have indicated in your publications?” N.T. Jury Trial,

6/23/16, at 234.      However, Dr. Hankins answered that if there was

neurological evidence to support that, he was “not an expert to refute it.” Id.

He also stated that his testimony about pre-labor and delivery conditions that

may cause cerebral palsy was made in relation to global incidents, not the

instant case. See id. (“And I’m talking globally, not in this case.”). Since the

specific issue regarding whether cerebral palsy could have been prevented in

this particular case was not brought out on cross-examination, the court did

not abuse its discretion in restricting Appellants’ redirect examination to that

which was raised in the cross-examination. Kauffman, supra; Dreibelbis,

supra.

      Appellants last claim that the trial court improperly denied their motion

to empanel Juror #4 where Appellees used two of their four peremptory

challenges to strike the only African-American jurors on the panel. Appellants

specifically allege that Appellees improperly struck these jurors upon

purposefully discriminatory grounds, offering no persuasive or facially neutral

explanation to support the challenges.

      Appellants’ issue alleges a violation of the United State Supreme Court’s

decision in Batson, supra, which held that “the Equal Protection Clause

forbids [a] prosecutor to challenge potential jurors solely on account of their

race.” Id. at 89.

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      To show a Batson violation, an appellant must generally
      demonstrate his particular factual situation satisfies the well[-]
      established test laid out by the United States Supreme Court's
      opinion in that case: First, the [movant] must make a prima facie
      showing that the [opposing party] has exercised peremptory
      challenges on the basis of race. Second, if the requisite showing
      has been made, the burden shifts to the [opposing party] to
      articulate a race-neutral explanation for his peremptory
      challenges. Finally, the trial court must determine whether the
      [movant] has carried his burden of proving purposeful
      discrimination.

Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013). To establish a

prima facie case of purposeful discrimination, the movant must show “that he

[i]s a member of a cognizable racial group, that the [opposing party] exercised

a preemptory challenge or challenges to remove from the venire members of

the [movant’s] race; and that the other relevant circumstances combine[] to

raise an inference that the [opposing party] removed the juror for racial

reasons.” Batson, 476 U.S. at 96.

      The first prong of the Batson analysis is not at issue here; Appellants

are African-American and Juror #4 is African-American. With regard to the

second prong, Appellees explained that they challenged Juror #4 because they

knew that the juror would hear the word “meconium” several times during

trial, as it was at issue in the case, and that meconium is the substance that

his niece had on her face, posing a significant danger at birth. Ultimately,

Appellees believed that Juror #4 would likely be “unfairly sympathetic to

[Appellants].” Appellees’ Brief, at 10.

      To justify their decision to strike Juror #4 during voir dire, Appellees

further explained:


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     We also struck juror #4 in today’s panel, who is [M.H], again race
     had nothing to do with our decision to strike him. His entire family
     had been treated at Delaware County Memorial Hospital. And he
     described the situation with his sister who delivered I believe two
     children at Delaware County Memorial Hospital, one of whom was
     coated in fluid, as he described at the time. And there were
     concerns, as I took it, of aspiration at the time that sounded very
     acute and very concerning, even though nothing happened to the
     child. In this case something allegedly happened to the child,
     Stephen Togba, III, and I thought that he is going to be drawing
     a comparison between his sister’s children at Delaware County
     Memorial Hospital and the fact that his sister’s children had at
     least one issue with regard to those children but did not have a
     problem. It had nothing to do with race. That situation concerned
     me and was the basis of my decision to trike [M.H.], juror #4,
     from today’s panel.

                                 *       *       *

     [Juror #4] described the baby as coming out covered with fluid.
     He described a concern about ingestion into the lungs. My concern
     is that the contrast would be made that this baby had concerns
     during the course of labor but came out problematic and that that
     would be drawn as a comparison to award damages here.

                                 *       *       *

     He explained the situation. I’m defending the very department
     that is involved in that experience. This is his sister. There’s
     every reason for me to be – even if he’s not labeling it as a
     negative, it’s close enough for me to exercise my right, my duty
     to protect my clients from a juror who has had a potentially
     negative experience with regard to being coated in meconium and
     potentially aspirating that.

                                     *       *       *

     There’s meconium in this case.

N.T. Jury Trial, 6/22/16, at 170, 177, 180-81.

     Once Appellees have offered a race-neutral explanation for their

challenge, the trial court must then determine whether Appellants have


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proven their burden of purposeful discrimination; persuasiveness of the

facially-neutral explanation offered by the Appellees is relevant to that inquiry.

Commonwealth v. Harris, 817 A.2d 1033 (Pa. 2002).

      Instantly, the trial court determined that Appellees provided “sufficiently

neutral justification for exercising [their] peremptory challenges” where

Appellees acknowledged that “each of the jurors in question had been

personally affected by experiences directly related to the issues in this case.”

Trial Court Opinion, 1/23/17, at 12-13. Juror #4 “was stricken because [he]

had a relative who had delivery involving meconium staining and the issue of

meconium staining was a significant issue in the case.” Id. at 13. Under such

circumstances, the court found that Appellees’ reason for striking Juror #4

was sufficiently race-neutral. See Batson, supra at 98, 98 n.20 (to fulfill

obligation to rebut prima facie case of discrimination in jury selection,

Appellees’ explanation of race-neutral reason must be “clear and reasonably

specific” as well as “related to the particular case to be tried.”).

      A trial court’s decision on the ultimate question of discriminatory intent

represents a finding of fact that is accorded great deference on appeal and

will not be overturned unless clearly erroneous. Commonwealth v. Cook,

952 A.2d 594 (Pa. 2008).

      Such great deference is necessary because a reviewing court,
      which analyzes only the transcripts from voir dire, is not as well
      positioned as the trial court is to make credibility determinations.
      There will seldom be much evidence bearing on the decisive
      question of whether counsel’s race-neutral explanation for a
      peremptory challenge should be believed. The best evidence
      often will be the demeanor of the attorney who exercises the

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       challenge. As with the state of mind of a juror, evaluation of the
       prosecutor’s state of mind based on demeanor and credibility lies
       peculiarly within a trial judge's province.

Id. at 603.      Moreover, unless a discriminatory intent is inherent in the

Appellees’ explanation, the reason offered will be deemed race-neutral.

Purkett v. Elem, 514 U.S. 765 (1995).

       Here, Appellees offered a legitimate, race-neutral explanation for

striking Juror #4 from the panel. Meconium complicated Juror #4’s niece’s

delivery in the very department of the same hospital where Appellants’ child

was delivered.8 Most notably, however, was the fact that meconium was an

issue in the instant case. Under such circumstances, we cannot deem the trial

court’s decision to deny Appellants’ Batson challenge as clearly erroneous;

there was no discriminatory intent inherent in Appellees’ reasonable

explanation. Cook, supra.

       Order affirmed.




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8Despite the fact that several other potential jurors had complicated deliveries
and children born with significant medical/physical issues, even with cerebral
palsy, none of these births occurred in Appellee Hospital in the exact
department where Baby Togba was born.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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