J. A32036/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


MARGARET DEFRANCESCO AND DAVID        :           IN THE SUPERIOR COURT OF
WEISS, CO-ADMINISTRATORS OF THE       :                 PENNSYLVANIA
ESTATE OF DEVIN WEISS, DECEASED,      :
                                      :
                     Appellants       :
                                      :
                  v.                  :
                                      :
LEHIGH VALLEY HEALTH NETWORK, INC.    :
A/D/B/A LEHIGH VALLEY HEALTH          :
NETWORK; LEHIGH VALLEY HOSPITAL-      :
MUHLENBERG, INC.; JOHN PETTINE, M.D., :
MUHLENBERG PRIMARY CARE; SUSAN        :
KRIEG, M.D. AND LEHIGH VALLEY         :
PHYSICIAN GROUP                       :                 No. 742 EDA 2014

                     Appeal from the Order January 31, 2014
                 In the Court of Common Pleas of Lehigh County
                        Civil Division No(s).: 2011-C-4318

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 26, 2015

       Plaintiff/Appellants,   Margaret   DeFrancesco   and    David   Weiss,   co-

Administrators of the estate of Devin Weiss, Deceased (“Decedent”)

(DeFrancesco and Weiss collectively, “Estate”), appeal from the judgment

entered in the Lehigh County Court of Common Pleas after a jury trial, in

favor of all defendants/Appellees, Lehigh Valley Health Network, Inc. a/d/b/a

Lehigh Valley Health Network; Lehigh Valley Hospital-Muhlenberg, Inc.; John

Pettine, M.D., Muhlenberg Primary Care; Susan Krieg, M.D. and Lehigh

*
    Former Justice specially assigned to the Superior Court.
J. A32036/14


Valley Physician Group.    In this medical malpractice matter, the Estate

argues the trial court erred in: (1) refusing to strike a potential juror for

cause; (2) precluding the Estate from impeaching defense witnesses with a

textbook chapter written by defense expert Dr. Bavaria; and (3) precluding

the Estate’s expert witness, Dr. Gasirowski, from testifying about symptoms

of aortic dissection and GERD because they were beyond the scope of his

report. We affirm.

     The following underlying facts are generally undisputed. On January 3,

2010, Decedent, who was thirty-six years old, presented at the emergency

department of Appellee Lehigh Valley Hospital-Muhlenberg, Inc. (“Hospital”)

with complaints of chest pain.       An emergency department physician,

Appellee Susan Krieg, M.D., evaluated him, diagnosed atypical chest pain

and gastroesophageal reflux (“GERD”), and discharged him. Decedent was

at the hospital for approximately two hours.1

     Three days later, on January 6, 2010, Decedent presented to

Muhlenberg Primary Care, P.C. with complaints of continued chest pain.

Appellee John Pettine, M.D., evaluated Decedent and diagnosed esophageal


1
  N.T. Amended Notes of Testimony, 9/18/13, at 177 (direct examination
testimony of Appellee Krieg). The certified record includes two transcripts
dated September 18, 2013, one entitled “Notes of Testimony” and stamped
“Filed” on December 9, 2013, and the second entitled “Amended Notes of
Testimony” and stamped “Filed” on December 20, 2013. Henceforth, our
citations to the September 18, 2013 volume are to the Amended Notes of
Testimony.




                                    -2-
J. A32036/14


spasm.   The next day, January 7th, Decedent died from a ruptured aortic

dissection.

     On November 30, 2011, Appellants, who are Decedent’s parents,

commenced the instant negligence action against Appellees Dr. Krieg, Dr.

Pettine, Hospital, and Lehigh Valley Physician Group.2      Their theory of the

case was that both doctors mis-diagnosed Decedent and should have instead

diagnosed him with aortic dissection.

     The case proceeded to a nine-day jury trial on September 16, 2013.

On September 27th, the jury announced its verdict, finding none of the

Appellees/defendants negligent. The Estate filed a post-trial motion, which

the trial court denied. The court entered judgment in favor of all defendants

on February 25, 2014, and the Estate took this timely appeal.3

     In their first issue, the Estate avers the trial court abused its discretion

in denying its request to strike a potential juror for cause.4 For context, we

summarize the following.     During voir dire, one juror revealed he had a

pending estate matter with an Attorney Capehart of the law firm of Gross


2
  Appellants also named as defendants Lehigh Valley Health Network, Inc.
and Muhlenberg Primary Care, P.C. but subsequently dismissed their claims
against them.
3
  The trial court did not direct the Estate to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal.
4
  For ease of discussion we henceforth refer to this potential juror simply as
“the juror.”




                                     -3-
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McGinley, LLP. See N.T., 9/16/13, at 69-70.5 Another attorney in that firm,

Howard S. Stevens, Esq., was representing Appellees Dr. Krieg and

Hospital.6 The Estate moved to strike the juror for cause. Id. at 69.

     Attorney Stevens responded with the following.       He practiced in the

firm’s Allentown office and had “nothing to do with estate work” and the

other attorney, Attorney Capehart, practiced in the Emmaus office and had

“nothing to do with any of [Attorney Stevens’] work.” Id. at 70. Attorney

Stevens “informed the prospective juror [he did not] have anything to do

with [the juror’s] case” and that Attorney “Capehart [did not] have anything

to do with” the instant case. Id. According to Attorney Stevens, the juror

“said that wouldn’t be a problem for him.” Id. at 71.

     The trial court then called the juror to continue voir dire. Id. at 75. In

response to the court’s questioning, the juror stated: (1) his case with Gross

McGinley LLP was not a medical malpractice case; (2) he had previously

never met or heard of Attorney Stevens;7 (3) Attorney Capehart had

previously never talked about Attorney Stevens; and (4) to the juror’s


5
  The initial voir dire proceeding was not transcribed. The transcript cited
above, dated September 16, 2013, is of the Estate’s oral motion to strike the
juror for cause and the parties’ ensuing argument.
6
  Gross McGinley, LLP continues to represent Appellees Hospital and Dr.
Krieg on appeal.
7
 Attorney Stevens informed the court that his firm’s letterhead includes his
name. N.T., 9/16/13, at 77. However, the juror stated he never noticed
Attorney Stevens’ name. Id.



                                     -4-
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knowledge, Attorney Stevens had not worked on his—the juror’s—case, and

no other attorneys beside Attorney Capehart had worked on his case. Id. at

75-76. The following exchange then occurred:

         [Court:] Does the fact that Mr. Stevens is in this case and
         also in the same firm with the lawyer that you picked to
         represent you, does that tend to give you any more—like,
         would you give Attorney Stevens more credibility or
         somehow side with him because you think he’s in the same
         firm with the guy that I picked, so he must be good;
         something like that?

            [Juror:] No, I don’t think so. No.

                                  *    *    *

            [Court:] Does the fact that Attorney Stevens will be in
         this case cause you to have any concerns about your
         ability to be fair?

            [Juror:] No.

           Q      Okay. Do you feel that you could be fair and
         impartial in this case?

            A     I feel, yeah.

            Q     Are you sure?

            A     Yeah.

Id. at 77-78.

     Following this exchange, the Estate argued the juror was “still a

present client of Mr. Stevens’ law firm” and thus “affiliated with this firm.”

Id. at 79, 81. The court, however, agreed with Attorney Stevens that “the

issue is whether he can be fair and impartial” and denied the Estate’s motion

to strike the juror. Id. at 81-83. The Estate exercised a peremptory strike


                                      -5-
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against the juror, and thus the juror did not participate in the trial.

     On appeal, as stated above, the Estate avers the court abused its

discretion in denying its motion to strike the juror. The Estate maintains the

juror and Gross McGinley, LLP had an attorney-client relationship and thus

“every lawyer,” including Attorney Stevens, “who works for Gross McGinley”

“owed duties of loyalty, care, and confidentiality to the prospective juror.”

Estate’s Brief at 17. The Estate contends the court’s “failure to strike [the]

juror” created the “appearance of bias (if not the reality) because of the

possibility that the juror could be unduly influenced by the arguments made

by his own law firm.” Id. at 18. Furthermore, the Estate challenges each of

the trial court’s stated reasons for denying its motion to strike—that the

juror did not know Attorney Stevens, “that the out-of-state cases cited by

the [Estate were] distinguishable on their facts,” and that the automatic

striking of “all . . . clients of a firm with dozens of attorneys in multiple

cities” is overbroad.   Id. at 22-23.    Finally, the Estate alleges the court’s

ruling was not harmless error because the Estate “was forced to use a

peremptory strike to remove the juror[ and thus] lost the ability to use that

peremptory strike on another prospective juror.” Id. at 26-27. We find no

relief is due.

     We note the relevant standard of review:

          The test for determining whether a prospective juror
          should be disqualified is whether he is willing and able to
          eliminate the influence of any scruples and render a verdict
          according to the evidence, and this is to be determined on


                                      -6-
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         the basis of answers to questions and demeanor . . . . A
         challenge for cause should be granted when the
         prospective juror has such a close relationship, familial,
         financial, or situational, with the parties, counsel, victims,
         or witnesses that the court will presume a likelihood of
         prejudice[,] or demonstrates a likelihood of prejudice by
         his or her conduct and answers to questions.

         . . . In the first situation, in which a juror has a close
         relationship with a participant in the case, “the
         determination is practically one of law and[,] as such[,] is
         subject to ordinary review.”[ ] . . . When presented with a
         situation in which a juror has a close relationship with
         participants in the litigation, we presume prejudice for the
         purpose of [en]suring fairness.

McHugh v. P&G Paper Prods. Co., 776 A.2d 266, 270 (Pa. Super. 2001)

(citations omitted).8

      The Estate avers “[n]o Pennsylvania case addresses whether a

prospective juror must be struck based on an ongoing attorney-client

relationship with a party’s attorney.” Estate’s Brief at 19. We discern the

issue before us to be more exacting: whether a trial court should strike a

juror for cause when the juror has a different type of matter—in this case,


8
  The Estate relies extensively on the 2014 Superior Court en banc decision
in Cordes v. Assocs. of Internal Med., 87 A.3d 829 (Pa. Super. 2014) (en
banc). Estate’s Brief at 12-16. However, there was no majority decision in
that case. Instead, the eight-member en banc panel was split as follows:
(1) Judge Wecht wrote an opinion in support of reversal, with one judge
joining and two judges concurring in the result; Cordes, 87 A.3d at 831; (2)
Judge Olson wrote a dissenting opinion, with one judge joining, id. at 847;
and (3) Judge Donohue wrote another opinion in support of reversal, with
two judges joining and one judge concurring in the result. Id. at 863.
Accordingly, none of the analysis in Cordes is not binding authority.
Nevertheless, some of the law set forth in Cordes—for example the relevant
standard of review—applies in this matter.



                                     -7-
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an estate case where the trial is in medical malpractice—handled by an

attorney working in a different office of the same law firm as one of the

attorneys at trial. Nevertheless, we agree there is no Pennsylvania decision

directly on point.

      In Linsenmeyer v. Straits, 166 A.2d 18 (Pa. 1960), our Supreme

Court addressed the striking of potential jurors, in sum, as follows:

            [The defendant’s] next allegation is that the trial judge
         erred in refusing to sustain certain of defendant's
         challenges for cause.      These challenges were made
         because certain prospective jurors knew some of plaintiff's
         counsel and had had in the past some legal relationship
         with the firm of counsel which represented plaintiff.[FN] We
         do not find on this record any evidence to justify a finding
         that by reason of such relationships any of the prospective
         jurors were disqualified. The trial judge—in a much
         better position to evaluate the situation than this
         Court because he saw the prospective jurors and
         heard their responses on voir dire—found no reason to
         justify a belief that these jurors by reason of their prior
         relationship with one or more of [the plaintiff’s] counsel
         would thereby be unable to fairly try the issue between
         [the parties]. In this area of the law, wide latitude is
         given to the discretion of the trial judge and, absent
         any showing that the trial judge abused his
         discretion in this respect, his action must be
         sustained[.]

         [FN]
              Five jurors were challenged for cause. Three of the
         jurors had been clients of the law firm representing [the
         plaintiffs]; one juror was an “old friend” presumably of
         one of [the plaintiff’s] lawyers; one juror came from the
         same village as one of [the plaintiff’s] lawyers and knew
         him. The court labeled the relationship of the latter two
         jurors as that of “acquaintance” and noted the legal
         relationship of the other three jurors was “not recent.”

Id. at 22-23 & n.2 (citations omitted) (first & second emphases added).



                                     -8-
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      The Estate contends that decisions from our sister states “have

addressed this issue compellingly.”     Estate’s Brief at 19.   We decline to

consider those foreign decisions and instead find the principles, enunciated

above, in McHugh, 776 A.2d 266, and Linsenmeyer, 166 A.2d 18, provide

sufficient guidance in the case sub judice.

      We first distinguish a salient fact in Linsenmeyer. In that case, the

potential jurors were past, “not recent” clients of the plaintiff’s attorneys,

whereas in the instant case, the potential juror was a current client of the

same law firm which represented Appellees Dr. Krieg and Hospital.

Linsenmeyer, 166 A.2d at 23 & n.2. Nevertheless, we emphasize that in

this case, the juror had an estate matter with an attorney in the Emmaus

office of the firm, whereas the instant case sounded in medical malpractice

and Attorney Stevens worked in the Allentown office. N.T., 9/16/13, at 70.

Attorney Stevens averred he informed the juror specifically he did not work

on his estate matter, and that Attorney Capehart had no connection to the

instant case. Id. The juror stated he had never heard of Attorney Stevens

and believed only Attorney Capehart was working on his estate case. Id. at

75-76.    Importantly, the juror also stated, in direct response to the trial

court’s questioning, he would not give Attorney Stevens more credibility, and

that his—the juror’s—ability to be fair and impartial was not affected. Id. at

77, 78.

      We consider that “[t]he test for determining whether a prospective



                                     -9-
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juror should be disqualified is whether he is willing and able to eliminate the

influence of any scruples and render a verdict according to the evidence, and

this is to be determined on the basis of answers to questions and

demeanor.” McHugh, 776 A.2d at 270. In light of the trial court’s “wide

latitude” and our standard of review, we disagree that the court abused its

discretion.    See Lisenmeyer, 166 A.2d at 23.             After reviewing the

circumstances before us, we disagree with the Estate that the juror had

“such a close relationship, familial, financial, or situational, with” Attorney

Stevens. See McHugh, 776 A.2d at 270. Furthermore, we agree with the

trial court that the juror did not “demonstrate[ ] a likelihood of prejudice by

his . . . conduct and answers to questions.” See id.

      Finally, “we note that this is not a situation where the complaining

party exhausted its preemptory challenges, the trial court failed to strike a

juror for cause, and the impermissible juror sat on the jury.” See Lockley

v. CSX Transp., Inc., 5 A.3d 383, 391 (Pa. Super. 2010).           Instead, the

Estate exercised its peremptory strike and thus this juror did not participate

in this trial. In light of our above discussion, the Estate’s claim that it “lost

the ability to use that peremptory strike on another prospective juror” does

not dissuade us from our holding.9 See Estate’s Brief at 26. Accordingly,



9
  “The primary function of a peremptory challenge is to allow parties to
strike prospective jurors whom they have good reason to believe might be
biased but who are not so clearly and obviously partial that they could



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we do not disturb the trial court’s ruling.

       The   Estate’s second issue     on appeal concerns whether       certain

symptoms of aortic dissection and GERD were within the “fair scope” of an

expert report.      The Estate presented an expert witness on emergency

medicine, Ben Gasirowski, M.D.,10 who, prior to trial, had prepared a report

in the form of a three-page opinion letter. For ease of disposition, we first

summarize the report, with particular detail to the symptoms set forth in it.

       The report specified Decedent’s symptoms at the time he presented to

Appellee Dr. Krieg at the emergency department: chest pain “which started

in his neck with radiations to his back,” “tightness in the center of his chest

with pain radiating to the upper back,” “a history of constant chest pain,

tightness in character, waxing and waning, which initially began in his neck,

and then went to his chest and back,” “active chest pain in his central chest

(substernal area), with radiations of pain to his upper back,” “shortness of

breath and nausea.” Ltr. of Ben Gasirowski, 1/26/13, at 1, 2. Decedent’s

“symptoms began around 8:30 a.m. while waking.” 11            Id. at 1.    Dr.

Gasirowski opined Decedent’s “symptoms were consistent with those of

otherwise be excluded from the panel.” Bruckshaw v. Frankford Hosp. of
Phila., 58 A.3d 102, 112 (Pa. 2012).
10
     See N.T. Trial, 9/19/13, at 18.
11
   The report also noted Decedent “had known cardiac risk factors of
hyperlipidemia and smoking (quit several years ago, but less than 10 years).
There was no evidence for a musculoskeletal or pleuritic origin of
[Decedent’s] symptoms.” Ltr. of Gasirowski at 2.



                                       - 11 -
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[acute coronary syndrome] and potentially an aortic dissection, particularly

in the latter because of the interscapular radiation of pain.” Id.

       Dr.   Gasirowski   further   identified   general   symptoms   of   aortic

dissection: “Although the chest pain of aortic dissection is often described as

severe and unremitting, it can also be intermittent. It can also be pain free

and asymptomatic.” Id. at 2. Dr. Gasirowski did not identify any symptoms

of GERD but instead stated: “Although [GERD] may present with some

similar features as cardiac conditions, without clear evidence for reflux

disease, the more serious and life threatening cardiac conditions need to

take precedence.” Id. at 3.

       Dr. Gasirowski’s report opined the standard of care required Dr. Krieg

to: (1) evaluate Decedent for acute coronary syndrome and                  aortic

dissection; (2) “administer aspirin . . . and sublingual nitroglycerin . . . for

[Decedent’s] complaints of chest pain with radiations to his upper back

(interscapular area) that were not musculoskeletal or pleuritic in origin;” (3)

admit Decedent, order “an [acute coronary syndrome] rule out protocol [sic]

and objective cardiac testing;” and (4) if acute coronary syndrome were

“ruled out,” then “absolutely” “rule[ ] out” aortic dissection “with a CTA

and/or TEE before”12 discharging Decedent with a diagnosis of GERD.13 Id.


12
     The terms “CTA” and “TEE” are not defined in Dr. Gasirowski’s report.
13
  Dr. Gasirowski noted “Dr. Krieg did believe [Decedent] may have been
having an acute coronary syndrome [sic] as was discussed in her



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at 2. Dr. Gasirowski further opined that because Dr. Krieg did not undertake

any of these actions, her conduct fell below the standard of care.14 Id. at 2-

3.

       During trial, Appellees Dr. Krieg and Hospital filed a motion in limine to

preclude Dr. Gasirowski from testifying about symptoms of aortic dissection

and GERD that were not contained in his expert report.15 Specifically, the

motion sought to preclude testimony about these symptoms of aortic

dissection: (1) anxiety and/or apprehension, (2) the sudden onset of chest

pain, (3) a difference in pulses in the arms and legs, and (4) a difference in

blood pressure in the arms.           The motion also sought the preclusion of

testimony about these symptoms of GERD: (1) a “[h]istory or lack thereof of

heartburn,” (2) a regurgitation reflux, (3) food intolerance, (4) esophageal

spasms, and (5) use of antacids. Appellees Susan Krieg & Hospital’s Mot. in

Limine, 9/19/13, at 3.        Appellees relied on Pennsylvania Rule of Civil

Procedure 4003.5 and argued these symptoms were not included in the four

deposition,” and had “instructed [Decedent] to schedule an outpatient stress
test with his primary care doctor ‘[the following] week.’” Ltr. of Gasirowski
at 3.
14
    Dr. Gasirowski further concluded “within a reasonable of medical
certainty,” that “had [Decedent] been admitted . . . the admitting team and
cardiology consult would have considered aortic dissection as a possibility[,]
the appropriate imaging, diagnosis and treatment for aortic dissection would
have ensued[,]” and Decedent “would have had a reasonable chance of
recovery.” Id. at 3.
15
     N.T. Trial, 9/19/13, at 20-21.




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corners of the report.    N.T., 9/19/13, at 48.      The trial court granted the

motion.

     In the instant appeal, the Estate avers the court abused its discretion in

granting Appellees’ motion. It maintains a central issue at trial was whether

Dr. Krieg misdiagnosed Decedent’s symptoms as GERD and all parties “were

prepared to address that issue at trial.” Estate’s Brief at 33, 34. The Estate

contends “Dr. Gasirowski addressed exactly that issue in his report”—that

Dr. Krieg should have “consider[ed] and rule[d] out aortic dissection before”

discharging Decedent with a GERD diagnosis. Id. at 33. It reasons “[t]he

fair scope doctrine does not require experts to compose an exegesis on the

subject at issue,” but simply “asks whether the proposed testimony was

within the ‘fair scope’ of the report.”        Id.   The Estate concedes “Dr.

Gasirowski did not specify in writing the particular signs and symptoms of

GERD and aortic dissection,” but alleges “those particulars were not ‘beyond

the fair scope’ of his report such that Dr. Krieg would have experienced

‘unfair surprise.’” Id. The Estate avers the trial court overly “criticize[d] the

level of detail that Dr. Gasirowski wrote into his report.” Id. (“This nit-

picking does not provide a sufficient basis for precluding testimony under the

fair scope doctrine.”).   Id.   Finally, the Estate claims prejudice because it

was “prevented from presenting basic evidence on a basic issue” and the

jury could not “meaningfully understand the particulars regarding how Dr.

Krieg committed negligence by assuming [Decedent] was experiencing GERD



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without ruling out aortic dissection.”16 Id. at 34, 35. After careful review,

we find no relief is due.

       This Court has stated:

           “[T]he admission of expert testimony is a matter within
           the sound discretion of the trial court, whose rulings
           thereon will not be disturbed absent a manifest abuse of
           discretion.”    If the trial court made an erroneous
           evidentiary ruling that caused harm to the complaining
           party, the only remedy is to grant a new trial. . . .

              Pursuant to Pa.R.C.P. 4003.5(a)(1)(B), “a party may,
           during discovery, require his adversary to state the
           substance of the facts and opinions to which his or her
           expert is expected to testify and a summary of the
           grounds for each opinion.” “The purpose of this provision
           is to avoid unfair surprise by enabling the adversary to
           prepare a response to the expert testimony.” The fair
           scope rule, addressed specifically in Pa.R.C.P. 4003.5(c),
           “provides that an expert witness may not testify on direct
           examination concerning matters which are either
           inconsistent with or go beyond the fair scope of matters
           testified to in discovery proceedings or included in a
           separate report.” [17] . . .

16
   Furthermore, the Estate cites the “court’s un-evenhanded” ruling on
another evidentiary issue: allowing Appellee’s expert on causation, Dr.
Bavaria, to testify about Decedent’s “life expectancy with a level of detail far
beyond what Dr. Bavaria wrote in his report.” Estate’s Brief at 35-36 (citing
N.T., 9/25/13, at 217-19, 248-58).
17
     That subsection of the Rule states:

           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



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                                 *     *      *

        The purpose of this rule is “to prevent incomplete or
        ‘fudging’ of reports which would fail to reveal fully the facts
        and opinions of the expert or his grounds therefor.”
        Pa.R.C.P. 4003.5(c), cmt. In other words, the fair scope
        rule “ . . . disfavors unfair and prejudicial surprise.”

                                 *     *      *

            No “hard and fast rule [exists] for determining when a
        particular expert’s testimony exceeds the fair scope of his
        or her pre trial report,” and we must examine the facts and
        circumstances of each case. In doing so, we must ask the
        overarching question, which is whether the purpose of Rule
        4003.5 is being served. We are guided by the following:

              In determining whether an expert’s trial
           testimony falls within the fair scope of his pre-trial
           report, the trial court must determine whether the
           report provides sufficient notice of the expert’s
           theory to enable the opposing party to prepare a
           rebuttal witness.     In other words, in 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 particular facts and 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
           making a meaningful response, or which would
           mislead the adversary as to the nature of the
           appropriate response.

Woodard v. Chatterjee, 827 A.2d 433, 440-42 (Pa. Super. 2003) (some



        testifying as to facts or opinions on matters on which the
        expert has not been interrogated in the discovery
        proceedings.

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



                                     - 16 -
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citations omitted).

     In the instant matter, the trial court opined:

         [T]he court examined Dr. Gasirowski’s relatively brief three
         (3) page report. The report did discuss the symptoms with
         which the decedent presented, including chest pain going
         to his back, shortness of breath, and nausea.            Dr.
         Gasirowski then drew the conclusion that these symptoms
         were consistent with aortic dissection and acute coronary
         syndrome. He made no mention of the other symptoms
         that the decedent had or that a person with aortic
         dissection would have. . . .

            The court found [the Estate was] attempting at trial to
         add factors that were not referenced in [its] expert’s report
         and did not reasonably flow from that report and that,
         thus, [Appellees] had no notice that they would have to be
         prepared to defend on those points.          Dr. Gasirowski
         drafted his report and made broad conclusions about the
         standard of care based on symptoms with which
         [Decedent] presented, but did not list any reason or other
         symptoms showing this was insufficient. The entire focus
         of the expert report is on the patient’s symptoms and the
         standard of care with regard to those symptoms.

             [Appellees] received no notice from [the Estate] that
         this expert intended to opine as to other alleged symptoms
         of this condition and to permit him to do so in these
         circumstances would encourage experts to write short,
         broad reports so that they could later explain them in any
         way that fits their party’s theory of the case. The Court
         concludes that is not consistent with the rules of evidence
         and case law as to expert reports and the four corners of
         the report doctrine. The court allowed Dr. Gasirowski to
         testify in a manner consistent with his report which
         established his belief that [Appellee’s] care fell below the
         professional standard of care. This does not constitute a
         gross abuse of discretion which would merit a new trial.

Trial Ct. Op., 3/20/14, at 11-12 (citing Ltr. of Gasirowski at 2) (paragraph

breaks added).



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     Implicit in the Estate’s theory of the case—that Dr. Krieg was negligent

in failing to diagnose Decedent with aortic dissection and instead with

GERD—is that the symptoms of GERD and aortic dissection are distinct.18

We emphasize, as the Estate concedes on appeal, that Dr. Gasirowski’s

report made no mention of the symptoms of GERD, and listed only these

general symptoms of aortic dissection: chest pain, which can be “severe and

unremitting” or “intermittent” or “pain free [sic] and asymptomatic.”    See

Ltr. of Gasirowski at 2.   We thus reject the Estate’s argument that the

symptoms of GERD were within the fair scope of a report that identified: (1)

some general symptoms of aortic dissection, and (2) the symptoms

Decedent was suffering when he was evaluated by Dr. Krieg. We likewise

find no relief due with respect to the other symptoms of aortic dissection the

Estate sought to elicit from Dr. Gasirowski at trial—namely, anxiety,

apprehension, “[t]he difference between the pulses in the arms and the legs;

and . . . [b]lood Pressure differences between the arms.”     See Appellee’s

Mot. in Limine at 3. As stated above, the report only discussed chest pain as

a symptom of aortic dissection.     The remaining symptom that the court

precluded—a “[s]udden onset of chest pain”—could be related to the report’s


18
   See Ltr. of Gasirowski at 2 (“Although [GERD] may present with some
similar features as cardiac conditions, without clear evidence for reflux
disease, the more serious and life threatening cardiac conditions need to
take precedence.”); Estate’s Brief at 33 (“Here, a central issue at trial was
whether Dr. Krieg had misdiagnosed [Decedent] as experiencing signs and
symptoms of GERD rather than those of aortic dissection.”).



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discussion of chest pain.      See id.     Nevertheless, we find the court’s

preclusion of this symptom did not arise to an abuse of discretion, where the

sudden onset of chest pain is a distinct concept from chest pain being

severe, unremitting, or intermittent. In sum, we disagree with the Estate’s

characterization of the omission of GERD symptoms and the additional aortic

dissection symptoms as merely a matter of “level of detail.”        See Estate’s

Brief at 33. Accordingly, we do not disturb the court’s evidentiary ruling.

     Appellant’s final issue on appeal is a challenge to the trial court’s

precluding it from impeaching defense witnesses with a textbook chapter

written by one of the defense’s expert witnesses. We set forth the following

background. Prior to trial, the parties stipulated they would not “use any of

the cardiothoracic surgeons for any crossover standard of care opinions” and

instead “would each be limited to [their] emergency room and/or internal

medicine experts with regard to [those] particular specialt[ies].”             N.T.,

9/18/13, at 129-30 (Appellees Dr. Krieg and Hospital’s argument); see also

id. at 150 (Estate’s argument); Trial Ct. Op. at 8. Appellee Dr. Krieg would

call Joseph Bavaria, M.D., a cardiothoracic surgeon, as an expert on

causation. Dr. Bavaria had co-authored a chapter, entitled Aortic Dissection,

in a textbook, Mastery of Cardiothoracic Surgery.       The chapter “dealt with

the diagnosis of aortic dissection,” id. at 9, including diagnosis in “young

patients who presented with classic symptoms of aortic dissection without

significant risk factors for atherosclerotic disease.” Estate’s Brief at 40.



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       Appellees filed a motion in limine to preclude the Estate from cross-

examining Dr. Bavaria, as well as any other defense witness, with the

chapter. The court heard extensive argument during the course of trial, out

of the jury’s presence. N.T., 9/18/13, at 127-61. Appellees Dr. Krieg and

Hospital argued the Estate would attempt to circumvent the stipulation by

referring to the chapter, which included standard of care opinions.   Id. at

130-31.    The Estate denied it would attempt to offer a standard of care

opinion through Dr. Bavaria’s testimony or present the chapter itself as

evidence. Id. at 150. Instead, the Estate averred, it would “use his learned

treatise as means of impeachment in cross-examination on other witnesses.”

Id.     The Estate further argued that in deposition, Dr. Bavaria stated

cardiothoracic “surgeons do not diagnose aortic dissection,” but instead a

patient has already had a “CT scan or the TEE” and “comes to the

[cardiothoracic] surgeon with a diagnosis of aortic dissection.” Id. at 151.

The Estate then argued that emergency room physicians, as well as primary

care physicians, diagnose “aortic dissection and that’s the purpose for which

[the chapter] will be offered on cross-examination of” the defense witnesses.

Id. at 152-53.

       The trial court granted Appellees’ motion to preclude the chapter. Id.

at 167.     It reasoned, inter alia, “The question is, can a cardiothoracic

surgeon say what is authoritative for an ER doctor or an internist.” Id. at

166.    The court found the those fields were different: “You can’t hold an



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internist or ER doctor to the same level of training and education that we

hold a cardiothoracic surgeon [to.]” Id.

     On appeal, the Estate acknowledges the parties’ stipulation and

reiterates its argument that it was merely “attempt[ing] to use [the] treatise

for impeachment purposes,” pursuant to McDaniel v. Merck, Sharp &

Dohme, 533 A.2d 436 (Pa. Super. 1987). Estate’s Brief at 38. The Estate

maintains, “[T]he practice described by [the chapter,] Aortic Dissection[,]

regarding the evaluation of a patient with suspected aortic dissection—

obtaining a CT scan—is a standard of care that applies directly to any

physician, but especially emergency medicine physicians, evaluating a

patient with recent onset of sudden chest pain, and not uniquely to

cardiothoracic surgeons.” Id. at 50-51. The Estate further states, “Section

512 of the Mcare Act19 does not impose a strict ‘same specialty’ requirement

regarding standard of care experts,” but instead allows an expert to provide

standard of care testimony where the expert . . . (a) is substantially familiar

with the applicable standard of care ‘for the specific care at issue,’ and (b)

practices in a subspecialty that has ‘a substantially similar standard of care

for the specific care at issue.’” Id. at 51. We find no relief is due.

     Section 512 of the MCARE Act provides:

         § 1303.512. Expert qualifications


19
  Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101-
1303.910.



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           (a) General Rule.—No person shall be competent to
       offer an expert medical opinion in a medical professional
       liability action against a physician unless that person
       possesses sufficient education, training, knowledge and
       experience to provide credible, competent testimony and
       fulfills the additional qualifications set forth in this section
       as applicable.

          (b) Medical Testimony.—. . .

                                *    *    *
       [H]owever, the court may waive the requirements of this
       subsection for an expert on a matter other than the
       standard of care if the court determines that the expert is
       otherwise competent to testify about medical or scientific
       issues by virtue of education, training or experience.

          (c) Standard Of Care.—In addition to the
       requirements set forth in subsections (a) and (b), an
       expert testifying as to a physician's standard of care also
       must meet the following qualifications:

             (1) Be substantially familiar with the applicable
          standard of care for the specific care at issue as of the
          time of the alleged breach of the standard of care.

             (2) Practice in the same subspecialty as the
          defendant physician or in a subspecialty which has a
          substantially similar standard of care for the specific
          care at issue, except as provided in subsection (d) or
          (e).

             (3) In the event the defendant physician is certified
          by an approved board, be board certified by the same
          or a similar approved board, except as provided in
          subsection (e).

          (d) Care Outside Specialty.—A court may waive the
       same subspecialty requirement for an expert testifying on
       the standard of care for the diagnosis or treatment of a
       condition if the court determines that:

             (1) the expert is trained in the diagnosis or
          treatment of the condition, as applicable; and


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                (2) the defendant physician provided care for that
             condition and such care was not within the physician's
             specialty or competence.

             (e) Otherwise Adequate Training, Experience And
          Knowledge.—A court may waive the same specialty and
          board certification requirements for an expert testifying as
          to a standard of care if the court determines that the
          expert possesses sufficient training, experience and
          knowledge to provide the testimony as a result of active
          involvement in or full-time teaching of medicine in the
          applicable subspecialty or a related field of medicine within
          the previous five-year time period.

40 P.S. § 1303.512(a)-(e).

     The Estate argues on appeal that although Dr. Bavaria would not testify

about the standard of care applicable to cardiothoracic surgeons, he could

testify about the standard of care applicable to emergency department

physicians making diagnoses of aortic dissection. However, we agree with

the trial court that, per the stipulation, a cardiothoracic surgeon could not

“say what is authoritative for an ER doctor or an internist.”               See N.T.,

9/18/13, at 166. Furthermore, we disagree with the Estate’s claim that Dr.

Bavaria could testify about an emergency department physician’s standard

of care under Section 512. Subsection 512(c) requires that for an expert to

testify   about   a   physician’s   standard    of   care,   the   expert   must   be

“substantially familiar with the applicable standard of care” and “[p]ractice

in the same subspecialty as the defendant physician or in a subspecialty

which has a substantially similar standard of care for the specific care at

issue.” 40 P.S. § 1303.512(c)(1)-(2). While the Estate’s emphasizes that


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Dr. Bavaria characterized his chapter as “a reliable authority for the purpose

of treating and diagnosing aortic dissection,” Estate’s Brief at 151-52, we

disagree that the record shows he was, pursuant to Subsection 512(c),

“substantially familiar with the applicable standard of care” for emergency

room physicians or that his specialty, cardiothoracic surgery, was a

subspecialty of emergency medicine.       See id.   Accordingly, we agree with

the trial court that Dr. Bavaria could not testify about the standards of care

applicable to Appellees Dr. Krieg or Dr. Pettine.

     Finding no grounds for relief, we affirm the judgment entered by the

trial court in favor of all defendants.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2015




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