J-A11044-19

                             2020 PA Super 75


 KENT GARMAN AND KELLY GARMAN            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellants            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 RICHARD ANGINO, ESQUIRE AND             :   No. 1079 MDA 2018
 ANGINO AND ROVNER                       :

             Appeal from the Judgment Entered May 30, 2018
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                              2014-7513-CV


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.:                  FILED: MARCH 30, 2020

     Kent and Kelly Garman appeal from the May 30, 2018 order granting

summary judgment in favor of Appellees Richard Angino, Esquire, (“Angino”)

and the law firm of Angino and Rovner (the “Law Firm”), and dismissing their

complaint in this legal malpractice action. We conclude that the trial court

erred in holding that res judicata, collateral estoppel, and the one recovery

rule would have foreclosed the Garmans from recovering their verdict in the

underlying medical malpractice action. Hence, we vacate the judgment and

remand for further proceedings.

     The following facts are pertinent to our review. Angino and the Law

Firm represented the Garmans in two medical malpractice actions. The first

action (“Garman I”) involved a claim for injuries sustained by Mrs. Garman

when a sponge was left behind during her 1993 cesarean section (“C-section”)
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performed by Sohael Raschid, M.D. at Chambersburg Hospital. Following the

surgery, Mrs. Garman experienced abdominal pain that her doctors attributed

to a uterine fibroid. During a myomectomy on September 18, 1997, a surgical

procedure to remove the fibroid, the sponge was discovered in her left lower

abdomen. An abscess had formed around the sponge.

      The Garmans, represented by Angino and the Law Firm, filed a medical

malpractice action against Raschid and Chambersburg Hospital for their

negligence in leaving behind the surgical sponge. A jury found in favor of the

Garmans and awarded $521,588.68 in damages.

      Mrs. Garman underwent another C-section on June 27, 1999. Again,

she experienced abdominal pain after the surgery. A CT scan in 2006 revealed

a retained foreign body in her abdomen. Mrs. Garman underwent surgery on

May 23, 2006, to remove that foreign body, which was determined to be a

second surgical sponge. The sponge was located in her right upper abdomen

and it had adhered to her bowel.    In order to remove it, surgeons had to

perform a bowel resection.

      On October 10, 2007, Angino and the Law Firm filed a complaint on

behalf of the Garmans (“Garman II”) against the physicians and hospital

involved in the 1997 myometomy when the first sponge was removed, namely

Dr. Heine, Raschid, and Chambersburg Hospital, and the parties involved in

the 1999 C-section, Ellen Tourtelot, M.D. and the Milton S. Hershey Medical

Center. They alleged that either the defendants negligently left the second


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sponge during the 1997 or 1999 surgeries, or they were negligent in failing to

timely discover and remove it.    During the course of discovery, an expert

retained by the Garmans opined that the source of the second retained sponge

was the first surgery performed by Raschid in 1993. The Garmans sought

permission to amend their complaint more than three years after the discovery

of the second sponge to add allegations that the Garman I defendants

Raschid and Chambersburg Hospital were negligent in leaving behind this

second sponge.      Despite an objection by these defendants that the

amendment was barred by the statute of limitations, the trial court granted

leave to amend.

      Garman II proceeded to a jury trial on March 9, 2010.          The jury

returned a verdict in favor of the Garmans, and against Chambersburg

Hospital and Raschid, allocating sixty-five percent of the negligence to the

Hospital and thirty-five percent to Raschid. The jury found no negligence on

the part of the other defendants. In addition, the jury determined that the

Garmans “did not know [and] could not have known by the exercise of

reasonable diligence prior to December 28, 2007, that the sponge removed

from Mrs. Garman’s body on May 23, 2006 was placed there during the 1993,

1997 or 1999 surgery.”     Verdict Slip, 3/17/10, at 1.    The jury awarded

damages of $735,000.

      The trial court denied Raschid and Chambersburg Hospital’s motion for

judgment notwithstanding the verdict, and added delay damages to the


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award.    Raschid and Chambersburg Hospital timely appealed to this Court

arguing, inter alia, that claims related to the 1993 surgery were barred by the

statute of limitations.1       We agreed, finding that the trial court erred in

permitting the amended complaint, which added a new cause of action for

negligence arising from the 1993 surgery, after the expiration of the statute

of limitations. Thus, we vacated the judgment and dismissed all claims related

to the 1993 surgery, but affirmed the judgment with respect to the jury’s

findings of no negligence on the part of the other defendants with regard to

the 1997 and 1999 surgeries. Garman v. Heine, 32 A.3d 825 (Pa.Super.

2011) (unpublished memorandum at 13), appeal granted, 52 A.3d 223 (Pa.

2012), dismissed as improvidently granted, 65 A.3d 912 (Pa. 2013).

       The Garmans initiated the instant legal malpractice action against

Angino and the Law Firm. They maintained that the negligence of Angino and

the Law Firm in failing to timely seek amendment of the Garman II complaint

to assert negligence claims against Raschid and Chambersburg Hospital for

their negligence during the 1993 C-section resulted in the loss of their

$700,000 verdict. Following the close of the pleadings, Angino and the Law

Firm moved for summary judgment based on the statute of limitations, res

judicata, collateral estoppel, and the one satisfaction rule.    The trial court



____________________________________________


1 Since the statute of limitations was dispositive of the appeal in Garman II,
this Court did not address the alternate bases for relief, i.e., res judicata,
collateral estoppel, and the one satisfaction rule.

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denied the motion with regard to the statute of limitations, finding that

“genuine issues of material fact exist with regard to the applicability of the

equitable discovery rule.” Order, 5/21/18, at 1. However, prior to trial, the

trial court granted summary judgment in favor of Angino and the Law Firm

based on the other three affirmative defenses. Trial Court Order, 5/30/18, at

¶12 (holding “[t]he one satisfaction rule and the doctrines of res judicata and

collateral estoppel apply to render the judgment in Garman II uncollectible”).

      The Garmans timely appealed, complied with the trial court’s Pa.R.A.P

1925(b) order, and the trial court issued its opinion in response. The Garmans

present four issues for our review, which we have re-ordered for ease of

disposition:

      1. Did the trial court below err, as a matter of law, in entering
         summary judgment in favor of [Angino and the Law Firm] on
         the application of [the one satisfaction rule, collateral estoppel,
         and res judicata], (the “Three Affirmative Defenses”) when the
         record was insufficient to justify judgment in their favor?

      2. In entering summary judgment in favor of [Angino and the Law
         Firm], did the trial court below err, as a matter of law, by
         making factual assumptions and/or drawing inferences in favor
         of [Angino and the Law Firm], construing the record in the light
         most favorable to them, in violation of the standard of review?

      3. Was the trial court’s application of the [Three Affirmative
         Defenses] to determine that in this legal malpractice case [the
         Garmans] could not have won their underlying case, when
         these Three Affirmative Defenses had already been specifically
         and finally rejected by the trial and appellate courts in the
         underlying case, precluded by the doctrines of collateral attack
         and/or the coordinate jurisdiction rule?

      4. Was the trial court’s application of the Three Affirmative
         Defenses to the facts of the underlying case, when the Three

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          Affirmative Defenses had already been specifically and finally
          rejected by the courts in that case, precluded by the doctrines
          of collateral estoppel and/or judicial estoppel?

Appellants’ brief at 5-6.

      Our scope of review of a trial court’s order granting summary judgment

is plenary. Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1156 (Pa.Super.

2019). Furthermore,

      [w]e view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. . . . [O]ur standard of
      review is clear: the trial court’s order will be reversed only where
      it is established that the court committed an error of law or abused
      its discretion.

Id. (quoting Abrams v. Pneumo Abex Corp., 981 A.2d 198, 203 (Pa.

2009)).

      The issue herein involves the viability of a legal malpractice action. As

our Supreme Court recognized in Kituskie v. Corbman, 714 A.2d 1027, 1030

(Pa. 1998), “a legal malpractice action is distinctly different from any other

type of lawsuit . . . because . . . a plaintiff must prove a case within a case

since he must initially establish by a preponderance of the evidence that he

would have recovered a judgment in the underlying action[.]” Only then is

the plaintiff permitted to prove that the attorney was negligent in the handling

of the underlying case, and that his negligence was the proximate cause of

the plaintiff’s loss.   Id.   However, as we explained in Heldring v. Lundy


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J-A11044-19


Beldecos & Milby, P.C., 151 A.3d 634, 644-45 (Pa.Super. 2016), “[a] legal

malpractice action does not litigate the same cause of action as the underlying

case in which the malpractice allegedly occurred” as the parties and the issues

are different.

        The instant case is unusual among legal malpractice actions as the

underlying medical negligence case was fully litigated, and the Garmans

prevailed at trial.     The judgment was vacated on appeal because the

amendment to the complaint to add claims related to the 1993 surgery was

subsequently determined to have been untimely. This Court concluded that,

despite the jury verdict, recovery was barred by the statute of limitations.

        In their defense to claims of legal malpractice, Angino and the Law Firm

contend that any negligence on their part in failing to timely seek amendment

of the Garman II complaint was not the proximate cause of the Garmans’

loss.   They argued below, and again on appeal, that the doctrines of res

judicata, collateral estoppel, and the one satisfaction rule also precluded the

Garmans’ recovery on the facts herein. The trial court agreed, and granted

summary judgment in favor of Angino and the Law Firm.

        In concluding that res judicata precluded recovery herein, the trial court

found

        In both Garman I and II, the issues were the same in that [the
        Garmans’ asserted negligence by the nursing staff at the hospital
        and the vicarious liability of Dr. Raschid for failure to make an
        accurate sponge count and the associated damages arising from
        the October 18, 1993 C-section surgery. The causes of action


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      against both defendants were identical and individual parties were
      in the same capacity in both cases, [i.e.,] doctor and patient.

Trial Court Order, 5/30/18, at ¶9. It reached a similar conclusion as to the

doctrine of collateral estoppel.

      Collateral estoppel applies in this matter as the issue decided in
      the prior action (Garman I), i.e., the negligence by the nursing
      staff at the hospital and the vicarious liability of Dr. Raschid for
      failure to make an accurate sponge count and the associated
      damages arising from the October 18, 1993 C-section, was
      identical to the one presented in the later action (Garman II). A
      final judgment on the merits in Garman I was satisfied and the
      Garman[s] had a full and fair opportunity to litigate the issue in
      question in the prior action[,] which led to a jury verdict in their
      favor. Accordingly, collateral estoppel applies thereby barring the
      legal malpractice action for failure to establish that the underlying
      case was meritorious.

Trial Court Order, 5/30/18, at ¶10.

      The substance of the Garmans’ first two issues is that Garman I and

Garman II were not identical. They contend that the parties were not the

same, the facts were different, and the injuries and damages were separate

and distinct.   In arriving at the conclusion that res judicata and collateral

estoppel rendered any verdict in Garman II uncollectible, the Garmans

contend that the trial court failed to view the evidence in their favor as the

non-moving party, together with reasonable inferences therefrom, in

derogation of the summary judgment standard. Moreover, they maintain that

the record was insufficient to warrant the entry of summary judgment in favor

of Angino and the Law Firm. We agree that, as a matter of law, the three

defenses did not preclude recovery in Garman II.


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J-A11044-19


      Res judicata means “a matter adjudged or a thing judicially acted upon

or decided.” McCarthy v. Township of McCandless, 300 A.2d 815, 819

(Pa.Cmwlth. 1973). “Traditionally, American courts have used the term res

judicata to indicate claim preclusion, i.e., the rule that a final judgment

rendered by a court of competent jurisdiction on the merits is conclusive as to

the rights of the parties and constitutes for them an absolute bar to a

subsequent action involving the same claim, demand or cause of action.”

McNeil v. Owens-Corning Fiberglass Corp., 680 A.2d 1145, 1147-48 (Pa.

1996); see also Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d

265, 286 (Pa.Super. 2016) (holding that under the doctrine of res judicata, “a

final judgment on the merits by a court of competent jurisdiction will bar any

future action on the same cause of action between the parties and their

privies”).   It is an estoppel doctrine that is designed to prevent the same

parties from engaging in vexatious and harassing litigation by preventing re-

litigation of all grounds for recovery or defenses that were previously available

to the parties, regardless of whether they were asserted or determined in the

prior proceeding.

      Our High Court has stated that res judicata precludes an action where

the former and latter suits possess the following common elements: (1)

identity of issues; (2) identity in the cause of action; (3) identity of persons

and parties to the action; and (4) identity of the capacity of the parties suing

or being sued. See In the Matter of Iulo, 766 A.2d 335, 337 (Pa. 2001).


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In making such a determination, “a court may consider whether the factual

allegations of both actions are the same, whether the same evidence is

necessary to prove each action and whether both actions seek compensation

for the same damages.” Dempsey v. Cessna Aircraft Co., 653 A.2d 679,

681 (Pa.Super. 1995) (en banc) (internal citations omitted).

      In the situation before us, the same type of negligent conduct on the

part of Raschid and Chambersburg Hospital in 1993 caused two distinct

injuries: one discovered in 1997, and the other discovered in 2006. Garman

I was a cause of action in negligence for injuries resulting from the failure to

remove one sponge during the 1993 C-section surgery, later discovered in

Mrs. Garman’s lower left abdomen in 1997.        The damages sought related

solely to the one sponge, which had formed an abscess at that location.

      The facts pled in Garman I, viewed in the light most favorable to the

non-moving party herein, support our view of that cause of action.         Mrs.

Garman averred that, in 1993, she underwent a C-section performed by

Raschid at Chambersburg Hospital. Angino’s Motion for Summary Judgment

Exhibit I (Garman I Complaint, at ¶6).        Thereafter, her uterus remained

enlarged, and an ultrasound confirmed a mass on the left side of the pelvis.

Id. at ¶¶7, 8. She was diagnosed on November 14, 1994, with uterine fibroids

and an enlarged uterus.     Id. at ¶9.    A 1996 ultrasound showed further

enlargement of the uterus, and Mrs. Garman underwent Depo-Lupron therapy

in an attempt to reduce the size of the fibroids. Id. at ¶¶18, 20. While the


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uterus decreased in size slightly, the mass grew. Id. at ¶23. Mrs. Garman

pled that she underwent surgery recommended by Raschid for removal of the

fibroid, or if that was not possible, a hysterectomy. Id. at ¶¶24, 26. The

surgery, performed by Laurice Heine, M.D., at Chambersburg Hospital,

revealed that the “fibroid” was a surgical sponge that could only have been

left behind during the 1993 C-section. The retained sponge had formed an

abscess in the lower left quadrant of Mrs. Garman’s abdomen. Id. at ¶27.

      Mrs. Garman alleged that Raschid was negligent in several respects:

failing to assure that all surgical materials were removed in toto; failing to

ensure accurate sponge counts; and failing to recognize that a sponge had

been left behind in her abdomen during the surgery he performed. Id. at ¶30

(a-c) (emphasis added). Due to that negligence, Mrs. Garman underwent a

second surgery to remove the sponge and surrounding abscess, sustained

past and future pain and suffering, lost earnings, medical expenses, as well

as permanent scarring and disfigurement. Id. at ¶¶31-36.

      Thus, in Garman I, the damages sought were those caused by Raschid

and Chambersburg Hospital’s negligence in leaving behind one surgical

sponge during the 1993 C-section. The jury returned a verdict against both

defendants, and the judgment was satisfied.

      In contrast, Garman II was initially commenced against Dr. Laurice

Heine, Raschid, Chambersburg Hospital, the Hershey Medical Center, Summit

Health, and Dr. Ellen Tourtelot for damages alleged to have resulted from their


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J-A11044-19


negligence in leaving behind a second surgical sponge in 1997 or 1999, and

only discovered in 2006.      Alternatively, the Garmans pled that these

defendants were negligent in failing to discover the sponge and remove it

earlier. The following facts were averred. In 1997, Dr. Heine, assisted by

Raschid, performed an exploratory surgery laparotomy to remove a mass

thought to be a uterine fibroid. See Angino’s Motion for Summary Judgment

Exhibit C (Garman II Complaint at ¶¶17-19). The mass was determined to

be a surgical sponge left behind during her 1993 C-section performed by

Raschid. Id. at ¶20. The sponge discovered in 2006 was left behind during

this 1997 surgery performed by Drs. Heine and Raschid.       Id. at ¶¶48-50.

Alternatively, if the source of the sponge was the earlier 1993 surgery, Drs.

Heine and Raschid were negligent in failing to use X-ray in 1997 to ensure

that there were no other foreign bodies remaining from the 1993 surgery. Id.

at ¶¶48-54.

      The Garman II complaint continued that, in June 1999, Mrs. Garman

underwent a C-section performed by Dr. Tourtelot at the Hershey Medical

Center. Id. at ¶¶26-27. Either the sponge discovered in 2006 was left behind

during that 1999 C-section, or if earlier, Dr. Tourtelot negligently failed to

discover its presence and remove it at that time. Id. at ¶¶67-68. Thereafter,

Mrs. Garman experienced persistent abdominal pain. In May 2006, a CT scan

revealed a retained foreign body located in the upper right quadrant of her

abdomen. Id. at ¶36. Mrs. Garman underwent surgery to remove the foreign


                                    - 12 -
J-A11044-19


body, which turned out to be a surgical sponge. Id. at ¶¶37, 42. The sponge

had adhered to Mrs. Garman’s bowel, and a bowel resection was necessary to

remove it. Id. at ¶40.

      At the time of Garman II, Mrs. Garman had undergone two additional

abdominal surgeries since the 1993 C-section, either of which may have been

the source of the second sponge. That fact alone made Garman II a very

different case. It was alleged therein that the sponge was left behind either

during the 1997 or 1999 surgeries.             The complaint was subsequently

amended, albeit too late, to add a new cause of action against Raschid and

Chambersburg Hospital for their alleged negligence in leaving behind the

second sponge during the 1993 surgery.          At issue in Garman II was the

identity of the party or parties responsible for negligently leaving behind the

second surgical sponge, as well as the liability of subsequent health care

providers for failing to detect it sooner.

      The Garman II trial culminated in a $735,000 verdict in favor of the

Garmans. Although Raschid and Chambersburg Hospital contested that the

source of the second sponge was the 1993 C-section, the jury specifically

found that to be the case. No liability was assessed against the defendants

who subsequently treated Mrs. Garman for failing to discover it earlier. The

jury found that the Garmans did not know, and could not have known with

the exercise of reasonable diligence prior to December 28, 2007, whether the




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J-A11044-19


second sponge was placed there during the 1993, 1997, or 1999 surgeries.

Verdict Slip, 3/17/10, at 1.

      Despite the obvious differences in the causes of action pled in Garman

I and II, the trial court found that they were “the same causes of action.”

Order, 5/30/18, at ¶6.    It found further that they arose “out of the same

occurrence, facts and witnesses as the claims in Garman I[,]” and that the

negligence was “fully litigated” in the earlier action. Id. Finally, the court

concluded that in awarding future damages, the jury awarded “the same

damages that the Garmans sought and recovered in Garman II.” Id.

      We conclude that Garman I and II were different causes of action for

distinct negligence, injuries, and damages. Although the conduct determined

to be negligent was similar in both cases, the acts were separate and the

issues surrounding the negligence in each case were not the same.          In

Garman I, the cause of action was one in negligence solely against Raschid

and Chambersburg Hospital for injuries sustained due to a retained sponge in

the lower left quadrant of the abdomen, the surgery to remove it, and the

pain and suffering associated with the abscess and its aftermath. In contrast,

Garman II was a suit commenced against multiple medical defendants

almost a decade later for damages associated with a surgical sponge

discovered in 2006 in the right upper quadrant of Mrs. Garman’s abdomen,

the origin of which was at issue. The injuries resulting from the 2006 sponge

were separate and distinct from the injuries caused by the first sponge, and


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J-A11044-19


flowed from the second sponge’s adherence to Mrs. Garman’s bowel and the

need to resect the bowel to remove it.         The trial court in Garman II

specifically limited damages to those caused by the second sponge.          See

Garman II Order, 7/21/10, at 6.

      We find that the factual allegations in Garman I and II were not the

same, different evidence was necessary to prove each case, and compensation

was sought for separate and distinct injuries. Further undercutting the notion

that the causes of action were identical is our determination in the prior appeal

in Garman II that the amended complaint added a new cause of action

against Raschid and Chambersburg Hospital for their negligence in leaving

behind the second sponge during the 1993 surgery. Garman v. Heine, supra

at 12 (unpublished memorandum). The discovery rule applied to that cause

of action, and the statute of limitations in that action only began to run on

May 23, 2006, when the second sponge was discovered. Id. at 8-12. We

concluded that it was only at that juncture that the injury or its cause was

known or knowable. See Fine v. Checchio, 870 A.2d 850, 857 (Pa. 2005);

see also Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 284-

85 (Pa.Super. 2016) (finding new cause of action subject to new statute of

limitations).

      Thus, we hold that the cause of action arising in 2006 upon discovery of

a retained surgical sponge of unknown origin in Mrs. Garman’s upper right

abdominal quadrant was distinct from the cause of action that arose in 1997


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for damages related to the sponge in her left lower abdomen. The “thing sued

for,” defined by our sister court as the thing in dispute or the matter presented

for consideration, was not identical. See McCarthy, supra at 820. Garman

I was a suit involving a residual sponge in the left lower quadrant of Mrs.

Garman’s abdomen following the C-section surgery in 1993; Garman II

involved a sponge discovered in the upper right quadrant of Mrs. Garman’s

abdomen in 2006, the origin of which could have been either the 1993, 1997,

or 1999 surgeries. Although res judicata bars subsequent claims that could

have been litigated in the prior action, but which were not, it is beyond cavil

that a claim for injuries caused by a retained surgical sponge discovered in

2006 could not have been litigated almost a decade earlier in Garman I.

      Our decision is consistent with our High Court’s decision in Daley v.

A.W. Chesterton, Inc., 37 A.3d 1175 (Pa. 2012), an asbestos exposure case.

Therein, the plaintiff was permitted to maintain a second action for

mesothelioma after litigating a claim for lung cancer due to exposure to

asbestos. The defendant argued that the second action was barred by the

doctrine of res judicata.    Our High Court rejected the application of the

doctrine, concluding that a cause of action for mesothelioma was distinct from

a prior cause of action for lung cancer. It invoked the “separate disease” rule

as a means to avoid recovery of speculative damages, while preserving a

plaintiff’s right to recover for more than one asbestos-related disease, if a

separate disease developed. We find the rationale apt on the facts herein.


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      We turn now to whether the doctrine of collateral estoppel barred

litigation of the Garman II issues. Collateral estoppel is “a broader concept”

than res judicata, and “operates to prevent a question of law or an issue of

fact which has once been litigated and adjudicated finally in a court of

competent jurisdiction from being re-litigated in a subsequent suit.” Day v.

Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa.Super.

1983). Collateral estoppel, or issue preclusion, applies if:

      (1)the issue decided in the prior case is identical to one presented
      in the later case; (2) there was a final judgment on the merits;
      (3) the party against whom the plea is asserted was a party or in
      privity with a party in the prior case; (4) the party or person privy
      to the party against whom the doctrine is asserted had a full and
      fair opportunity to litigate the issue in the prior proceeding and
      (5) the determination in the prior proceeding was essential to
      the judgment.

Chada v. Chada, 756 A.2d 39, 42-43 (Pa.Super. 2000). While res judicata

operates to preclude subsequent actions, collateral estoppel operates to

preclude re-litigation of issues previously decided only.

      Collateral estoppel, unlike res judicata, does not require either “identity

of causes of action or parties.” Id. at 43 (citation omitted). However, as with

res judicata, the party against whom a plea of collateral estoppel is asserted

must have had a full and fair opportunity to litigate the issue in question in a

prior action.   The doctrine can be used offensively as well as defensively.

However, the party asserting collateral estoppel must show that “the fact or

facts at issue in both instances were identical; and that these facts were

essential to the first judgment and were actually litigated in the first cause.”

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Muhammad v. Strassburger, McKenna, Messer, Shilobod, & Gutnick,

587 A.2d 1346, 1348 (Pa. 1991).

       Garman I did not resolve the issue of whether Raschid and

Chambersburg Hospital nurses deviated from the standard of care in leaving

behind the sponge discovered in 2006.2 Obviously, then, the Garmans did not

have a full and fair opportunity to litigate in Garman I the ultimate and

controlling issues surrounding the negligent retention of the second sponge,

as its existence was unknown and unknowable to them at that time.

       Additionally, Garman II presented many issues that were not present

in Garman I, including: (1) whether the defendant physicians and hospital

staffs from the 1993, 1997, or 1999 surgeries were the cause of the retained

sponge discovered in 2006; (2) whether the subsequent treating defendant

physicians and hospitals were negligent in failing to timely discover and

remove the second sponge; and (3) whether the negligence of Raschid and

Chambersburg Hospital was the factual cause of the bowel-related injury

sustained by Mrs. Garman due to the presence of the second retained sponge.



____________________________________________


2  The Garmans could plausibly have employed collateral estoppel offensively
to argue that Raschid and Chambersburg Hospital were estopped from re-
litigating in Garman II their negligence with regard to sponge counts.
However, it is unclear if the verdict in Garman I was premised upon a finding
of specific negligence in failing to count the sponges, or on a res ipsa theory
premised on the fact that Raschid and Chambersburg Hospital staff left a
foreign body in Mrs. Garman during the 1993 surgery. In any event, the issue
of whose negligence was responsible for the yet-to-be-discovered second
sponge was not litigated Garman I.

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Hence, the doctrine of collateral estoppel would not have precluded litigation

of these issues in Garman II, and would not have entirely barred recovery.

For all of these reasons, we conclude that the doctrines of res judicata and

collateral estoppel did not preclude recovery in Garman II for the separate

and distinct injury and damages caused by the second retained surgical

sponge.

      Nor does the “one satisfaction rule,” the proposition that “for the same

injury, an injured party may have but one satisfaction[,]” preclude recovery

for the claims in Garman II. Brown v. City of Pittsburgh, 186 A.2d 399,

402 (Pa. 1962).       The trial court broadly characterized Garman I as

determinative of whether Raschid and Chambersburg Hospital were negligent

with regard to the 1993 C-section, and compensating the Garmans for all

damages associated with the 1993 C-section. It did not consider whether the

injury was the same, or whether the Garmans could have recovered in

Garman I damages for a latent injury in Garman II.

      We find that the Garmans were compensated in Garman I for the

injuries and damages, past and future, proximately caused by the negligently

retained sponge discovered in 1997. We do not believe the Garman I jury

could have contemplated a separate, yet-to-be-discovered sponge and

attendant bowel injury when it fashioned its damage award for future pain and

suffering.     Indeed, such injuries and damages were unforeseeable and

speculative.     The payment of the judgment in Garman I represented


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satisfaction for the injury and damages attributed only to the first sponge,

including any future injuries or damages flowing from the negligent retention

of that sponge.

      The injuries and damages resulting from the second sponge are

separate and severable. The trial court in Garman II acknowledged that, and

correctly instructed the jury to award damages limited solely to the second

sponge discovered in 2006.       See Garman II Order, 7/21/10, at 6).

(confirmation by the court that it instructed the jury that the Garmans had

been previously compensated for the first retained sponge and that any

damages should relate only to the harm caused by the second retained

sponge).

      For these reasons, we find that Angino and the Law Firm failed to

establish that collateral estoppel, res judicata, and the one satisfaction rule

were alternative legal theories upon which the Garmans would have been

barred from recovering their verdict in Garman II. Hence, the trial court’s

grant of summary judgment in favor of Angino and the Law Firm, based on its

finding that their negligence was not, as a matter of law, the proximate cause

of the Garmans’ loss, is legally incorrect. Summary judgment was improperly

entered.




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       In light of the foregoing disposition, we need not reach the alternative

grounds for reversal urged by the Garmans.3

       Judgment vacated. Case remanded. Jurisdiction relinquished.

       Judge Olson joins the opinion.

       Judge Stabile files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020




____________________________________________


3  We note, however, that the Garmans’ third issue that the trial court’s
consideration of the defenses of res judicata, collateral estoppel, and the one
satisfaction rule violated the collateral attack doctrine or the coordinate
jurisdiction rule fails to appreciate that the underlying medical malpractice
claim and the instant legal malpractice claim are not the same causes of
action. See Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 644-
45 (Pa.Super. 2016). Additionally, contrary to the Garmans’ contention that
our failure to address these defenses on appeal from the judgment in Garman
II was a “tacit affirmation of those rulings,” no inference can be drawn as to
the merit of these defenses from the fact that this Court did not need to reach
them to dispose of that appeal. See Appellants’ brief at 33. Finally,
Appellants’ fourth issue misses the mark. Judicial estoppel cannot be invoked
against Angino and the Law Firm as they were counsel for the Garmans in
Garman II, not parties. See Trowbridge v. Scranton Artificial Limb
Company, 747 A.2d 862, 864 (Pa. 2000) (holding a party” is estopped from
assuming a position inconsistent with his or her assertion in a previous action,
if his or her contention was successfully maintained”). Similarly, collateral
estoppel applies only when the issue was decided against the same party or
privy in the prior action, not counsel.

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