J-A22034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT M. MARSTELLER AND SHARON                  IN THE SUPERIOR COURT OF
M. MARSTELLER,                                         PENNSYLVANIA

                            Appellants

                       v.

GREGORY A. HANKS, M.D.,

                            Appellee                  No. 11 MDA 2015


            Appeal from the Judgment Entered December 17, 2014
             in the Court of Common Pleas of Cumberland County
                       Civil Division at No.: 2013-03432


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

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 17, 2015

        Appellants, Robert M. Marsteller and Sharon M. Marsteller, appeal from

the judgment entered in their medical malpractice action against Appellee,

Gregory A. Hanks, M.D., after a jury found that he was not negligent in his

treatment of Appellant, Robert M. Marsteller.1         Specifically, Appellants

challenge the court’s denial of their motion in limine that sought to preclude

testimony regarding the two schools of thought doctrine as irrelevant, and

the weight of the evidence supporting the verdict. We affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Henceforth, when we refer to “Appellant” in the singular, it will be to
Robert M. Marsteller.
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      We take the following facts from the trial court’s March 23, 2015

opinion and our independent review of the record.         On April 28, 2012,

Appellant fractured his leg when he fell while rollerblading. (See N.T. Trial,

10/29/14, at 38-39, 41-42, 53).      Appellant’s leg was so unstable it was

“floppy.” (Id. at 42; N.T. Trial, 10/30/14, at 119). Appellee, an orthopedic

surgeon, treated Appellant at Holy Spirit Hospital.          (See N.T. Trial,

10/27/14, at 46; N.T. Trial, 10/29/14, at 53). There were multiple options

for the treatment of Appellant’s primary injury, a semicircular spiral fracture

of his tibia. (See N.T. Trial, 10/27/14, at 50-51, 53). In an effort to avoid

open surgery due to a high risk of complications, Appellee placed the leg “in

a cast with closed reduction” to reduce the fracture and return the bone to

“as close to normal as possible.” (Id. at 52; see id. at 55, 60). Thereafter,

the course of treatment included monitoring the casted leg via x-ray to

determine if it was maintaining alignment, and continuing to heal properly.

(See id. at 60, 62).

      On June 22, 2012, physical therapist June Perry examined Appellant

and determined that he had an apparent tibial rotation of fifteen degrees in

the healing leg, with a baseline five degree rotation in the uninjured limb.

(See N.T. Trial, 10/29/14, at 206, 209).         Appellant sought a second

orthopedist’s opinion, which Appellee arranged for him at Hershey Medical

Center. (See id. at 20). On June 27, 2012, Spencer Reid, M.D., determined

that a CAT scan of the leg revealed a twenty to twenty-five degree external


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rotation.     (See Dr. Reid’s Trial Deposition, 4/04/14, at 27, 41; N.T. Trial,

10/30/14, at 70). On July 5, 2012, following his consultation with Dr. Reid,

Appellant elected to undergo a surgical option involving a Taylor Spatial

Frame2 to set the leg rotation, rather than continue with Appellee’s course of

treatment. (See N.T. Trial, 10/29/14, at 23, 197).

       On June 14, 2013, Appellants filed a complaint against Appellee

alleging medical malpractice in his treatment of Appellant’s fracture.     The

parties filed multiple motions in limine prior to trial, including Appellants’

motion to limit testimony about the two schools of thought doctrine, which

the court denied on October 24, 2014. The case proceeded to a four-day

jury trial.

       At trial, Appellee stated that a textbook written by Appellants’ expert,

Gerald Hayken, M.D., asserts that five to twenty degrees of malrotation “is

commonly what is accepted in the field[.]” (Id. at 166). Both Appellee and

his expert, John Esterhai, M.D., opined that the x-ray taken immediately

after the leg casting showed acceptable alignment, and that use of the x-ray

was proper. (See N.T. Trial, 10/27/04, at 65; N.T. Trial, 10/30/14, at 45,

52, 105).      In fact, Dr. Esterhai testified that “a considerable number of

physicians having reviewed the x-rays taken postoperatively [would have]

____________________________________________


2
  A Taylor Spatial Frame is an external metal frame that is surgically affixed
to the leg with screws that penetrate into the bone and are adjusted to
correct rotation. (See N.T. Trial, 10/29/14, at 23-24).



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decided to leave [Appellant] in the cast and not proceed with recasting at

that point in time[.]” (N.T. Trial, 10/30/14, at 52). He stated further that,

following that image, it would have been “foolish” for Appellee to have

attempted to re-reduce the fracture. (Id. at 46). Dr. Esterhai examined the

CAT scan images from Dr. Reid, and stated that the malrotation was not

more than twenty degrees, but that even if Appellant’s leg was malrotated

between twenty and twenty-five degrees, surgery was not mandated

because of its own risks of making him worse. (See id. at 69-70).

        Dr. Hayken agreed that the post-reduction x-rays of Appellant showed

good alignment. (See N.T. Trial, 10/29/14, at 156). He testified, however,

that Appellee’s choice in treatment did not detect the unacceptable

malrotation and he did not “believe that you can adequately evaluate

rotation on a plain x-ray[.]” (Id. at 114). Although Dr. Hayken opined that

a CAT scan would be more accurate, he admitted that it only would be

necessary to examine the leg when planning to operate on it. (See id. at

116, 125). He testified that, if he had treated Appellant, his course of action

would have been to re-reduce the injury by operating on him under

anesthesia because the risk of displacing the fracture would not have been

great.    (See id. at 149).    He conceded, however, that there are multiple

ways of treating tibial fractures to bring the healed bone as close to its pre-

break    condition   as   possible.   (See   id.   at   162).   Specifically,   he

acknowledged that, although Dr. Reid decided that Appellant required


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surgery to further reduce the fracture, Appellee’s choice of treatment was

recognized and acceptable.          (See id. at 148; see also Dr. Reid’s Trial

Deposition, 4/04/14, at 29).

       During the charging conference, Appellants’ counsel objected to the

“two schools of thought” instruction, but then agreed that it was applicable

to the care rendered by Appellee after the initial closed reduction. (See N.T.

Trial, 10/31/14, at 5, 10, 12, 14-15). The trial court instructed the jury on

two schools of thought, limiting it to the post-reduction treatment. (See id.

at 32).

       On October 31, 2014, the jury returned a verdict in which it found

Appellee was not negligent. The court denied Appellants’ motion for post-

trial relief on December 5, 2014, and entered judgment on December 17,

2014. Appellants timely appealed.3

       Appellants raise two questions for our review:

       A.    Did the trial court commit an error of law and/or abuse its
       discretion when it denied [Appellants’] [m]otion in [l]imine to
       [p]reclude any testimony as to [t]wo [s]chools of [t]hought with
       respect to the allegations of negligence in [their] [c]omplaint?

       B.    Did the trial court abuse its discretion when it denied
       [Appellants’] [p]ost-[t]rial [m]otion as to the weight of the
       evidence as being manifestly unreasonable, arbitrary, or
       capricious since both [Appellants’] and [Appellee’s] experts
       agreed that permitting a malrotation in excess of [ten] degrees
____________________________________________


3
  Appellants filed a timely statement of errors complained of on appeal
pursuant to the court’s order on January 27, 2015. See Pa.R.A.P. 1925(b).
The court filed an opinion on March 23, 2015. See Pa.R.A.P. 1925(a).



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J-A22034-15


       following a closed reduction was below the standard of care and
       it was undisputed that following the closed reduction, [Appellant]
       was left with a malrotation of at least [twenty] degrees?

(Appellants’ Brief, at 5).

       In their first issue, Appellants argue that the trial court erred in

denying their motion in limine to preclude evidence referring to two schools

of thought.     (See id. at 5, 16-18).         They maintain that evidence of two

schools of thought was irrelevant4 to their case because they “d[o] not

dispute that [Appellee’s] choice of a close[d] reduction was appropriate in

this case.” (Id. at 16-17). Appellants’ claim lacks merit.

       It is well-settled that:

              Generally, a trial court’s decision to grant or deny a motion
       in limine is

              subject to an evidentiary abuse of discretion
              standard of review. The term discretion imports the
              exercise of judgment, wisdom and skill so as to
              reach a dispassionate conclusion, within the
              framework of the law, and is not exercised for the
              purpose of giving effect to the will of the judge.
              Discretion must be exercised on the foundation of
              reason,    as    opposed   to   prejudice,  personal
              motivations, caprice or arbitrary actions. Discretion
              is abused when the course pursued represents not
              merely an error of judgment, but where the
              judgment is manifestly unreasonable or where the
              law is not applied or where the record shows that the
____________________________________________


4
  We observe that “[e]vidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more or less probable
or supports a reasonable inference or presumption regarding a material
fact.” Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012), appeal
denied, 57 A.3d 71 (Pa. 2012) (citation omitted).



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J-A22034-15


            action is a result of partiality, prejudice, bias or ill
            will.

Catlin v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012), appeal denied, 74

A.3d 124 (Pa. 2013) (citation omitted).

             Where competent medical authority is divided, a physician
      will not be held responsible if in the exercise of his judgment he
      followed a course of treatment advocated by a considerable
      number of recognized and respected professionals in his given
      area of expertise.

                   In recognizing this doctrine, we do not attempt
            to place a numerical certainty on what constitutes a
            “considerable number.” The burden of proving that
            there are two schools of thought falls to the
            defendant. The burden, however, should not prove
            burdensome. The proper use of expert witnesses
            should supply the answers. Once the expert states
            the factual reasons to support his claim that there is
            a considerable number of professionals who agree
            with the treatment employed by the defendant, there
            is sufficient evidence to warrant an instruction to the
            jury on the two “schools of thought.”          It then
            becomes a question for the jury to determine
            whether they believe that there are two legitimate
            schools of thought such that the defendant should be
            insulated from liability.

Gala v. Hamilton, 715 A.2d 1108, 1110-11 (Pa. 1998) (citation omitted).

      Here, in his expert report, Dr. Esterhai stated that there “is more than

one school of thought” among physicians about whether, after the initial

closed reduction, to treat a patient conservatively, as Appellee did herein, or

pursue immediate surgical revision. (Expert Report, Dr. Esterhai, 8/09/14,

at unnumbered page 5). Appellants’ complaint alleged that, after the initial

closed reduction, Appellee failed to: (1) detect an unacceptable degree of


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J-A22034-15


malrotation; (2) both clinically and radiographically assess the rotation at

the   fracture   site;   (3)   correct the     allegedly   unacceptable   degree   of

malrotation within a reasonable time frame; and (4) correct the malrotation

by May 31, 2012 while the malrotation was still correctable with minimal

intervention. (See Complaint, 6/14/13, at 4 ¶ 23).

       In other words, the complaint alleged Appellee’s post-reduction

treatment was negligent, and Dr. Esterhai’s report asserted that there was

more than one school of thought on the best treatment option after the

initial procedure, one of which being the avenue pursued by Appellee.

Therefore, we conclude that the trial court properly exercised its discretion in

denying Appellants’ motion in limine to preclude two schools of thought

testimony as irrelevant. See Catlin, supra at 922; Smith, supra at 137.

Appellants’ first claim lacks merit.5

____________________________________________


5
  We acknowledge that, in the summary of argument section of their brief,
Appellants state that the trial court committed error in its two schools of
thought jury instruction. (See Appellants’ Brief, at 15). However, this is an
entirely different issue from the challenge discussed above, which addressed
whether the court properly denied Appellants’ pre-trial motion in limine to
preclude two schools of thought testimony.             (See id. at 16-18).
Additionally, to the extent that Appellants are trying to contest the jury
charge, we conclude that the issue is waived on several bases.

      Initially, we observe that, during the charging conference, Appellants’
counsel expressly stated, “I would not object to [the] two schools of thought
[instruction] as to after the initial reduction, the failure to reoperate [sic] or
re-reduce or follow through[.]” (N.T. Trial, 10/31/14, at 15). Consistent
with counsel’s requested language, when the court provided the jury with
the two schools of thought instruction, it advised that the doctrine only was
(Footnote Continued Next Page)


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J-A22034-15


      In their second issue, Appellants maintain that the trial court erred in

denying their post-trial motion for a new trial on the basis that the verdict

was against the weight of the evidence where all experts agreed that a

malrotation over ten degrees was unacceptable. (See Appellants’ Brief, at

19-20). Appellants’ claim is waived and would not merit relief.

            The Rules of Appellate Procedure state unequivocally that
      each question an appellant raises is to be supported by
      discussion and analysis of pertinent authority.         Appellate
      arguments which fail to adhere to these rules may be considered
      waived, and arguments which are not appropriately developed
      are waived. Arguments not appropriately developed include
      those where the party has failed to cite any authority in support
      of a contention. This Court will not act as counsel and will not
      develop arguments on behalf of an appellant. . . .

Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014), appeal

denied, 110 A.3d 998 (Pa. 2014) (citations and quotation marks omitted);

see also Pa.R.A.P. 2119(a)-(e) (mandating that appellate brief contain


                       _______________________
(Footnote Continued)

to be applied “to [Appellants’] claim that [Appellee], after the initial
reduction and casting, failed to further reduce the fracture adequately.” (Id.
at 32; see id. at 31). Appellants’ counsel did not object to the court’s
charge. (See id. at 32).

      Also, Appellants did not challenge the jury instruction in their post-trial
motion, Rule 1925(b) statement, or statement of questions involved. (See
Post-Trial Motion, 11/03/14, at 1-2; Rule 1925(b) Statement, 1/27/15, at 4-
8; Appellants’ Brief, at 5). Indeed, other than Appellants’ statement in the
summary of the argument section of their brief, the argument section only
contains a passing reference to the charge, and otherwise abandons any
argument regarding this issue.        (See Appellants’ Brief, at 15, 17).
Therefore, for all of these reasons, any challenge of the two schools of
thought jury instruction is waived.



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J-A22034-15


pertinent discussion and citation, references to the record, and statement of

place of raising issue).

      Here, Appellants’ brief on this issue falls woefully short of our Rules’

requirements.      (See Appellants’ Brief, at 19-20).     It does not contain any

citation to legal authority, references to the record, identification of where

evidence in the record may be found, or a statement of the place of raising

or preserving the weight of the evidence claim.            (See id.).      Instead, it

contains a summary recitation of the testimony, viewed in the light most

favorable to Appellants, and concludes with the statements:

            We know that the rotation was at [twenty-five] degrees as
      was indicated by the CT scan or at most [twenty] degrees by Dr.
      Esterhai [and] was still double what all the doctors, Reid,
      [Appellee,] and [Appellants’] expert testified was the maximum
      accepted standard.

            Therefore, the jury’s finding of no negligence is contrary to
      the facts and law and a new trial should be ordered.

(Id. at 20).

      This “discussion” falls well-below that required for an appellate brief,

and we decline to “act as counsel and . . . develop arguments on behalf of

[A]ppellant[s].”     Coulter, supra at 1088.          Appellants’ second issue is

waived. See id.; see also Pa.R.A.P. 2101, 2119(a)-(e).

      Moreover, we observe that Appellants’ claim would not merit relief.

Our standard of review of a weight of the evidence challenge is well-settled:

                     Appellate review of a weight claim is a review
               of the [trial court’s] exercise of discretion, not of the
               underlying question of whether the verdict is against

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J-A22034-15


           the weight of the evidence. Because the trial judge
           has had the opportunity to hear and see the
           evidence presented, an appellate court will give the
           gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court’s determination that the verdict is against the
           weight of the evidence. One of the least assailable
           reasons for granting or denying a new trial is the
           lower court’s conviction that the verdict was or was
           not against the weight of the evidence and that a
           new trial should be granted in the interest of justice.

            The factfinder is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses. The
     trial court may award a judgment notwithstanding the verdict or
     a new trial only when the jury’s verdict is so contrary to the
     evidence as to shock one’s sense of justice. In determining
     whether this standard has been met, appellate review is limited
     to whether the trial judge’s discretion was properly exercised,
     and relief will only be granted where the facts and inferences of
     record disclose a palpable abuse of discretion. When a fact
     finder’s verdict is so opposed to the demonstrative facts that
     looking at the verdict, the mind stands baffled, the intellect
     searches in vain for cause and effect, and reason rebels against
     the bizarre and erratic conclusion, it can be said that the verdict
     is shocking.

Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (citations and quotation

marks omitted).

     In this case, despite Appellants’ representation to the contrary, there

were conflicting viewpoints presented to the jury about a leg’s acceptable

and normal range of rotation. (See, e.g. N.T. Trial, 10/27/14, at 56; N.T.

Trial, 10/29/14, at 117, 166; N.T. Trial, 10/30/14, at 51).          Therefore,

because the jury was free to believe all, part, or none of the evidence

presented, we conclude that the trial court properly exercised its discretion

when it found that the verdict was not shocking to one’s sense of justice.

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J-A22034-15


See Haan, supra at 70.     Appellants’ second issue, even if not waived,

would not merit relief.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015




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