J-A28020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 EDWARD R. KORNBERGER,                   :   IN THE SUPERIOR COURT OF
 ADMINISTRATOR OF THE ESTATE OF          :        PENNSYLVANIA
 DONNA ZAPPASODI                         :
                                         :
                    Appellant            :
                                         :
                                         :
               v.                        :
                                         :   No. 3407 EDA 2016
                                         :
 LEHIGH VALLEY HEALTH NETWORK,           :
 INC., LEHIGH VALLEY HOSPITAL,           :
 INC., SURGICAL SPECIALISTS OF           :
 THE LEHIGH VALLEY, MICHAEL              :
 BADELLINO, M.D., DALE DANLEBEN,         :
 M.D., JOHN J. HONG, M.D., DAN           :
 TAYLOR, CRNP, LAMA2DISSOLVING           :
 CO., INC., F/K/A LEHIGH AREA            :
 MEDICAL ASSOCIATES, P.C., LEHIGH        :
 VALLEY PHYSICIANS GROUP,                :
 AFFILIATED WITH THE LEHIGH              :
 VALLEY HEALTH NETWORK                   :

             Appeal from the Judgment Entered December 13, 2016
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2014-C-1508


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J.                            FILED JUNE 11, 2018

     Edward Kornberger, as administrator for the estate of Donna Zappasodi

(“the Estate”), appeals from the judgment entered after a jury found that

Lehigh Valley Hospital (“LVH”) and other associated defendants had not

committed medical malpractice. The Estate believes a new trial is warranted

based upon four separate challenges to the trial court’s evidentiary rulings.

We affirm.
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      Our standard of review is as follows: We reverse an order to deny a new

trial only when the trial court abused its discretion. See Paliometros v.

Loyola, 932 A.2d 128, 132 (Pa. Super. 2007). We review the decision to

determine whether the court erred. See id. If so, we must also determine

whether the error requires a new trial. See id. If the appellant asserts the

court committed an error of law, we will scrutinize for legal error. See id. We

review the court’s determination on prejudice for an abuse of discretion. See

id. “An abuse of discretion exists when the trial court has rendered a judgment

that is manifestly unreasonable, arbitrary, or capricious, has failed to apply

the law, or was motivated by partiality, prejudice, bias, or ill will.” Id.

(citations and quotation marks omitted).

      Except where noted, the facts of this case are largely uncontested.

Zappasodi, then 60 years old, was treated at LVH for injuries arising from a

fall on May 7, 2012. Her medical history, in relevant part, included diverticulitis

and a reversed colostomy. She was discharged after receiving treatment.

      The next day, she suffered another fall, and was again transported to

LVH, where she was diagnosed with significantly more serious injuries,

including pelvic and sacral fractures. (The sacrum is a large, triangular bone

at the base of the spine.) She was admitted to the hospital and placed in the

intensive care unit before being placed in the trauma transitional unit.

      By May 10, hospital staff observed indications that Zappasodi was

suffering from either a bowel obstruction or an ileus. An ileus occurs when


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“the functioning of the bowel, particularly the small bowel, decreases to the

point that the normal squeezing motion that pushes fluid and food forward

[has] stopped.” N.T., Jury Trial, 4/26/16, at 201. Furthermore, tests indicated

possible pneumonia in Zappasodi’s right lung.

      A nasogastric (“NG”) tube was inserted down Zappasodi’s esophagus to

evacuate the contents of her stomach and small bowel. Over 800 mL of fluid

was removed from her by the NG tube.

      The next morning, the 12th, hospital staff observed indications that the

ileus had resolved. As a result, the NG tube was clamped, and Zappasodi was

given clear fluids by mouth. By that afternoon, staff had observed symptoms

indicating the ileus had not resolved. In response, a new set of scans were

performed.

      The scans indicated no significant difference from the May 10th scans;

Zappasodi’s ileus had not resolved, and her right lung still showed symptoms

of possible pneumonia. Before 9 p.m., a nurse observed Zappasodi’s eyes roll

back into her head. Despite prolonged resuscitative efforts, Zappasodi passed

away at approximately 11 p.m.

      At trial, the Estate argued that the defendants had breached their duty

of care on the 12th. Specifically, the Estate alleged that

      [a] simple set of interventions, including physical examination,
      discontinuation of oral feeding, assessment of the position and
      patency of the NG tube, and re-institution of intermittent
      suctioning through this tube, would have prevented these events.
      The interventions, collectively, would have taken fewer than ten
      minutes of medical attention by her providers, and, yet, despite

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      progressive symptoms and concerns expressed not only by family
      members but other members of her care team, she was never re-
      assessed by the clinicians primarily charged with her care over the
      course of May 12, 2012.

Expert Report of Peter F. Clardy, M.D., 12/4/15, at 9.

      In contrast, the defendants asserted that Zappasodi’s death was not

caused by aspiration. Rather, the defendants presented an expert opinion that

Zappasodi died due to complications from the injuries sustained in her fall,

combined with pre-existing cardio-vascular disease. Thus, under defendants’

theory, any decisions regarding the treatment of Zappasodi’s ileus on May

12th did not contribute to her death.

      The jury found no negligence on the part of the defendants. The trial

court denied the Estate’s post-trial motions, and this timely appeal followed.

      The Estate first contends the trial court erred in precluding the expert

testimony of Marianne Hamel, M.D., Ph.D., who had performed the autopsy of

Zappasodi. When considering the admission of expert evidence, our standard

of review is very narrow:

      The admission or exclusion of evidence, including the admission
      of testimony from an expert witness, is within the sound discretion
      of the trial court. … [W]e may only reverse upon a showing that
      the trial court clearly abused its discretion or committed an error
      of law. To constitute reversible error, an evidentiary ruling must
      not only be erroneous, but also harmful or prejudicial to the
      complaining party.

Turney Media Fuel, Inc., v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa. Super.

1999) (internal citations omitted). See also Pa.R.E. 702 Comment.




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      The trial court excluded Dr. Hamel’s expert testimony due to the Estate’s

failure to identify her as an expert or submit her expert report before the close

of discovery. The Estate does not dispute that it submitted Dr. Hamel’s report

after the deadline had passed or that it had failed to identify Dr. Hamel as an

expert it intended to call at trial. The Estate asserts it did not intend to call Dr.

Hamel until it received the defendants’ expert reports that asserted the ileus

did not cause Zappasodi’s death. The Estate argues the trial court’s preclusion

of Dr. Hamel’s expert testimony was an improper sanction under the

circumstances.

      Pursuant to the rules of discovery, the proponent of an expert witness

is required to identify the expert in response to interrogatories and state the

substance of the expert’s facts and opinions in a signed report or answer. See

Pa.R.C.P. 4003.5(a)(1). The failure to comply with Rule 4003.5(a)(1)

generally results in the preclusion of the expert’s testimony. See Pa.R.C.P.

4003.5(b). “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.” Id.

Thus, exclusion of testimony is not a mandatory remedy. See Corrado v.

Thomas Jefferson University Hospital, 790 A.2d 1022, 1032 (Pa. Super.

2001).

       “Rather, when a discovery violation occurs as a result of a failure to

identify an expert witness, the presiding court must balance the facts and


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circumstances of each case to determine prejudice to each party.” Id.

(internal quotation marks and citations omitted). Circumstances to consider

include: (1) the ability of the defaulting party to have discovered the witness

earlier; (2) the reasonableness of the excuse offered for the default; (3)

whether the defaulting party’s conduct was willful; (4) whether there was an

intent to mislead; (5) the prejudice suffered by the defaulting party if the

testimony is excluded; (6) the prejudice to the opposing party caused by the

default; (7) the ability to cure any prejudice to the opposing party; (8) the

impact of the default on the administration of the court’s docket; and (9)

whether the defaulting party acted in bad faith. See Curran v. Stradley,

Ronon, Stevens & Young, 521 A.2d 451, 457 (Pa. Super. 1987). See also

Corrado, 790 A.2d at 1032.

      The Estate contends the trial court failed to consider the prejudice

exclusion would cause to the Estate’s case, and that it presumed prejudice to

the defendants. However, our review reveals the trial court considered all of

these factors and weighed them thoughtfully. See Trial Court Opinion,

9/30/16, at 10-14 (finding an absence of bad faith, but concluding the Estate

knew of Dr. Hamel since the case began, and had failed to identify her as an

expert witness due to “gamesmanship”). Furthermore, we find the court’s

reasoning does not constitute an abuse of discretion. Thus, the Estate’s first

argument on appeal merits no relief.




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       Next, the Estate argues the trial court erred in precluding its use of

Nurse Dorothy Diehl’s deposition testimony to impeach her.1 The Estate

questioned Nurse Diehl at her deposition regarding her actions during the

evening of May 12, 2012. She acknowledged she became aware of gastric

distention possibly indicative of a small bowel obstruction. The Estate sought

to determine how she reacted to this knowledge:

              Q.     [] What did you conclude on seeing these x-ray
                     results?

              A.     I called the trauma resident.

              Q.     And were you concerned about the persistence of the
                     small bowel obstruction and distention as compared
                     to the 10th?

              A.     I just only called her on the x-ray results.

              Q.     What about the x-ray results were concerning to you?

              A.     What it says.

              Q.     Explain to me what caused you concern.

              A.     That she had gastric distention and small bowel
                     obstruction.

N.T., Deposition, 6/24/15, at 203-204.

       In contrast, when the Estate asked Diehl at trial why she called the

trauma resident, she testified, “I was tying up loose ends.” N.T., Jury Trial,



____________________________________________


1There are indications in the record that Nurse Diehl’s full name is Dorothy
Diehl Scherer. However, all parties on appeal and the trial court refer to her
as Nurse Diehl. For the sake of consistency, we will also follow this convention.

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5/5/16, at 147. Counsel for the Estate asked if she remembered when she

was “asked that question at deposition[.]” Id. The trial court sustained

defense counsel’s unspecified objection to this question. See id.

      The Estate argues it was entitled to cross-examine Diehl using her

deposition testimony. The trial court—without any citation or discussion of

authority on the issue—states that it “did not allow … questions which

improperly used the deposition testimony for impeachment.” Trial Court

Opinion, 9/30/16, at 27.

      “Any deposition may be used by any party for the purpose of

contradicting or impeaching the testimony of a deponent as a witness[.]”

Pa.R.C.P. 4020(a)(1). In the absence of a specific objection or any specific

discussion underlying the trial court’s decision to preclude the use of the

deposition testimony, we are unable to divine what about the use of the

deposition was improper. This ruling was an abuse of the trial court’s

discretion.

      However, in order to gain relief on appeal, the Estate must also establish

that it suffered prejudice from this ruling. See Turney Media Fuel, Inc., 725

A.2d at 839. Unless an error of law controls the outcome of a case, we will not

reverse an order denying a new trial. See Lockley v. CSX Transp. Inc., 5

A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial and

not a perfect trial.” Id. at 392 (citation omitted).




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      Here, we have no difficulty concluding this issue did not control the

outcome of the case; the trial court’s error was harmless. The Estate

presented the expert testimony of Dr. Clardy, a specialist in critical care

medicine, and a chair of medical education at Mount Auburn Hospital in

Cambridge, Massachusetts. Dr. Clardy opined on the standard of care

exercised by the defendants in this case. Nurse Diehl’s impressions, as a

treating nurse, would have been highly unlikely to sway a jury that rejected

Dr. Clardy’s opinion. Since the Estate cannot establish prejudice, its second

issue on appeal merits no relief.

      In its third issue, the Estate argues the trial court erred by allowing a

defense expert to testify beyond the scope of his expert report. Defendants

presented the expert testimony of Jeffrey S. Young, M.D., M.B.A., on the issue

of standard of care.

      In his initial pre-trial expert report, Dr. Young opined the “care provided

by the trauma team met the standard of care.” Expert Report of Jeffrey Young,

1/26/16, at 3. In a subsequent report, he opined “the film obtained on the

afternoon/early evening of the 12th did not appear significantly different than

the previous film, and had no indications for immediate intervention.” Expert

Report of Jeffrey Young, 4/11/16. He concluded “that Dr. Badellino, Dangleben

and Hong, along with CRNP Taylor all complied with the standard of care in

their treatment of Donna Zappasodi.” Id.




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      Our Rules of Civil Procedure require an expert witness’s testimony be

limited to those topics that are contained within the fair scope of his expert

report. See Pa.R.C.P. 4003.5(c).

      [I]n deciding whether an expert’s trial testimony is within the fair
      scope of his report, the accent is on the word “fair.” The question
      to be answered is whether, under the circumstances of the case,
      the discrepancy between the expert’s pre-trial report and his trial
      testimony is of a nature which would prevent the adversary from
      preparing a meaningful response, or which would mislead the
      adversary as to the nature of the appropriate response.

Bainhauer v. Lehigh Valley Hospital, 834 A.2d 1146, 1150-1151 (Pa.

Super. 2003) (citations and emphasis omitted). Rule 4003.5 is intended to

“prevent incomplete or ‘fudging’ of reports which would fail to reveal fully the

facts and opinions of the expert or his grounds therefore[.]” Pa.R.C.P. 4003.5

Comment.

      The Estate’s arguments center on two portions of Dr. Young’s testimony

at trial. First, defense counsel asked Dr. Young to interpret a May 8, 2012 CT

scan of Zappasodi’s pelvis. The Estate objected, claiming this testimony was

beyond the scope of Dr. Young’s expert report. We disagree. Dr. Young’s April

11th report indicates he reviewed Zappasodi’s scans from this incident. And

he opined that the May 12th scan did not reveal any significant differences

from prior scans.

      The Estate highlights his testimony that the May 8th scans contained

ambiguous and “confusing” clinical presentations. This testimony is within the

fair scope of Dr. Young’s April 11th report. Dr. Young opined in his report that


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the May 12th scan of Zappasodi “did not appear significantly different than

the previous film.” Thus, the Estate was on notice that Dr. Young would

address the results of previous scans. This argument merits no relief.

      The second sub-issue concerns Dr. Young’s testimony that Kelly

McGuire, D.O.’s reading of the May 12th scans did not violate the standard of

care. The Estate contends this was outside the fair scope of Dr. Young’s expert

reports, as he never explicitly mentioned Dr. McGuire despite naming several

other doctors. We agree with the trial court’s conclusion that Dr. Young’s use

of the term “trauma team” should have alerted the Estate to Dr. Young’s

intentions. This claim merits no relief.

      Lastly, the Estate argues the court erred in admitting evidence of habit.

      Evidence of a person’s habit … may be admitted to prove that on
      a particular occasion the person … acted in accordance with the
      habit. Habit connotes one’s conduct in a precise factual context,
      and frequently involves mundane matters …. To establish a habit
      or custom, a party must prove behavior approaching fixed
      regularity. [W]hether evidence of such usage or habit is
      admissible to show what occurred in a specific instance depends
      on the invariable regularity of the usage or habit. To be
      admissible, the usage must have sufficient regularity to make it
      probable that it would be carried out in every instance or in most
      instances.

Sutch v. Roxborough Memorial Hospital, 151 A.3d 241, 251-252 (Pa.

Super. 2016) (internal citations, parenthesis, and quotation marks omitted).

      The Estate takes issue with the testimony of registered respiratory

therapist Matthew Reis. Reis’s videotaped testimony was played to the jury.

The Estate focuses on Reis’s interpretation of his clinical note from the


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resuscitation of Zappasodi in the evening of May 12th. The note indicates that

Zappasodi was “status post code on floor with positive aspiration[.]” N.T.,

Deposition, 2/9/16, at 48. Reis testified this “means that they aspirated at

some point.” Id., at 49.

      He then stated, “[s]o in this instance how I wrote it, I would take this

as they coded and then aspirated during the code.” Id., at 50. The Estate did

not object to this testimony.

      The Estate did object to this next question: “The way you wrote it you

think it meant that she – you were told she had aspirated and then – that she

coded and then aspirated?” Id. However, this objection was based upon the

leading nature of the question, not that it called for speculation. See id.

      Then defense counsel asked: “Mr. Reis, if you had been told that the

patient had coded as a result of aspiration, what would you have written?”

Id., at 51. The Estate objected, asserting that the question called for

speculation. Id. Reis answered, “I would write code due to aspiration or

respiratory arrest.” Id., at 52.

      When the video was played at trial, the Estate requested Reis’s answer

be stricken as improper evidence of habit. We agree with the trial court that

the foundation for this evidence of habit was laid by the Estate’s earlier

questioning of Reis:

           Q.     … Do you agree in those circumstances it’s very
      important to chart accurately information that you obtain?

            A.    Yes.

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            Q.    And will you agree with me that you had a habit of
                  charting carefully and accurately?

            A.    Yes.

            …

            Q.    And do you agree that you expect that other
                  caregivers will rely on your charting to determine care
                  needs and to determine outcomes?

            A. Yes.

Id., at 28 (emphasis supplied). Thus, the trial court did not abuse its discretion

in admitting Reis’s answer as evidence of habit. The Estate’s final issue on

appeal merits no relief.

      As we conclude none of the Estate’s issues on appeal merit relief, we

affirm the judgment.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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