J-A07007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DONALD KNUDSEN                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ELLIOT BROWNSTEIN, M.D.,                   :   No. 2260 EDA 2018
    GLENSIDE INTERNAL MEDICINE,                :
    PRESBYTERIAN HOSPITAL MEDICAL              :
    CENTER, ANEESH KHUSHMAN, M.D.,             :
    AND THE TRUSTEES OF THE                    :
    UNIVERSITY OF PENNSYLVANIA                 :

               Appeal from the Judgment Entered July 25, 2018
     In the Court of Common Pleas of Montgomery County Civil Division at
                             No(s): 2013-23058


BEFORE:       OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 09, 2019

       Appellant, Donald Knudsen, appeals from the judgment entered on July

25, 2018, in favor of Appellant and against Aneesh Khushman, M.D.

(“Khushman”), in the amount of zero dollars.1 We affirm in part, reverse in

part, and remand for proceedings consistent with this memorandum.

                         Factual and Procedural History

       The trial court summarized the relevant factual background of this case

as follows.

____________________________________________


1 Appellant originally appealed from an October 13, 2017, order, which
granted in part and denied in part his post-trial motion. This Court quashed
the appeal as premature on July 23, 2018. See Knudsen v. Brownstein,
M.D., et al., 3453 EDA 2017 (Pa. Super. 2018).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07007-19


     [Appellant] met Khushman in April 2010 while they were working
     together for the Census Bureau. Khushman represented that he
     was a medical doctor and a resident at Presbyterian Hospital
     Medical Center.

     On September 13, 2010, [Appellant] injured his leg [while]
     moving furniture from his apartment. [Appellant] testified that
     initially “[t]here was a laceration and some swelling up, a little
     blood. Some blood.” [Appellant] contacted Khushman the same
     day seeking medical advice and perhaps direction towards some
     kind of treatment.       Khushman came over to [Appellant’s]
     residence and evaluated [Appellant’s] injury, advised him against
     going to the emergency room, and told [Appellant] he would
     return the next day to have another look at it.

     Khushman evaluated [Appellant’s] injury the following day and
     suggested a diagnosis of neuropathy. Khushman performed a
     diagnostic test and determined that [Appellant] suffered a loss of
     sensation in his foot, especially up front, towards the toes.

     On September 15, 2010, Khushman again visited [Appellant].
     [Appellant’s] foot was getting worse. [Appellant] described his
     pain at this time as “quite considerable” and testified that there
     was some swelling in the area of the laceration.

     On September 16, 2010, [Appellant] saw Dr. Elliot Brownstein.
     [Appellant] had been a patient of Dr. Brownstein since 2004.
     [Appellant] indicated that he only treated with Dr. Brownstein one
     time [] regarding the injury to his leg. [Appellant] did not have
     health insurance at this time.

     Dr. Brownstein evaluated [Appellant’s] injury and diagnosed
     [Appellant] with peroneal nerve palsy. Dr. Brownstein prescribed
     physical therapy and Percocet or some other pain killer. Dr.
     Brownstein asked [Appellant] to come back and see him in two to
     three weeks.

     On September 20, 2010, Khushman visited [Appellant] again.
     Khushman again advised [Appellant] that seeking outside
     treatment was unnecessary and that the injury would heal
     naturally.   [Appellant] showed Khushman the diagnosis and
     prescription [from] Dr. Brownstein. Khushman told [Appellant] he
     essentially agreed with Dr. Brownstein’s diagnosis and advised
     [Appellant] that he would bring him some literature on the

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J-A07007-19


      subject, which he later did. Khushman also advised [Appellant]
      to proceed with the prescription for physical therapy. [Appellant]
      described the condition of his leg and foot at this point as
      “[e]xtreme pain, inability to move it very well from side to side
      and then up and down.”

      The swelling around the laceration on [Appellant’s] shin extended
      to his ankle, which was severely bruised and “purpling.”
      [Appellant] testified that a day or so before seeking treatment at
      a hospital emergency room, “I put my finger down between some
      of my toes, and I could feel some flesh, genuine flesh and
      bone…[and I] pulled up all this gunk, this black, gangrenous gunk.
      And I knew I was in trouble.” By the time [Appellant] went to
      Chestnut Hill Hospital on September 29, 2010, his toes were
      turning black. [Appellant] was in extreme pain and could not
      walk.

      On October 6, 2010, [Appellant] underwent a partial amputation
      of his foot. [Appellant] underwent a total of “four or five”
      operations, ultimately resulting in the loss of part of his left foot,
      including all five toes.

      [Appellant] is in “constant pain along that foot” and requires a
      cane to walk long distances.          [Appellant] stated that the
      amputation has resulted in considerable change[s] in his lifestyle.
      He has difficulty with activities that he formerly enjoyed, such as
      swimming and hiking. [Appellant] suffers from a gait dysfunction
      which causes him severe back pain.

Trial Court Opinion, 9/26/2018, at 4-6, (internal footnotes and record citations

omitted).

      The procedural posture of this case is as follows. Appellant originally

filed a complaint against Elliot Brownstein, M.D., Glenside Internal Medicine

(a medical practice group herein referred to as “Glenside”), Presbyterian

Hospital Medical Center, the Trustees of the University of Pennsylvania, and

Khushman, seeking damages arising from improper medical treatment

following the injury to Appellant’s leg. Appellant’s original complaint sounded


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J-A07007-19



in medical negligence. Appellant alleged that Dr. Brownstein, a primary care

physician with Glenside, was aware of Appellant’s medical history and failed

to diagnose and treat Appellant for myeloproliferative disorder.2    Appellant

alleged that this failure, “caused [Appellant] to develop a multitude of issues

including but not limited to ischemic left foot/left forefoot gangrene, acute

arterial thrombus, and thrombocytosis... [and] a left transmetatarsal

amputation.”     Plaintiff’s Pre-Trial Memorandum, 1/4/2016, at 1.   Appellant

also alleged that Khushman (who, at the time, Appellant believed to be a

medical doctor and resident at Presbyterian Hospital Medical Center) similarly

misdiagnosed Appellant and, as a result, advised him against going to the

emergency room.

       Through discovery, Appellant learned that Khushman was not a resident

at Presbyterian Hospital Medical Center and was actually not a physician

licensed to practice medicine anywhere in the United States or abroad. Thus,

Presbyterian Hospital Medical Center and the Trustees of the University of

Pennsylvania were dismissed without prejudice by stipulation on April 18,

2016. Dr. Brownstein and Glenside agreed to participate in binding arbitration

with Appellant. On November 4, 2016, the arbitrator issued his decision. The

arbitrator found that Dr. Brownstein and Glenside were not liable to Appellant.
____________________________________________


2 According to Stanford Health Care, “[m]yeloproliferative disorders are a
group of rare illnesses that cause blood cells in the bone marrow, including
red blood cells, white blood cells, and platelets, to grow and develop
abnormally.” See “Myeloproliferative Neoplasms,” Stanford Health Care,
Stanford Medicine, https://stanfordhealthcare.org/medical-conditions/cancer
/myeloproliferativ-neoplasms.html (Last Visited 08/5/2019).

                                           -4-
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On April 19, 2017, the trial court confirmed the arbitration award. Khushman

did not agree to participate in binding arbitration, so Appellant’s case

proceeded with Khushman as the sole remaining defendant.

     On April 6, 2017, with leave of court, Appellant filed an amended

complaint against Khushman. The amended complaint alleged that Khushman

was negligent, inter alia, in “fail[ing] to properly evaluate [Appellant’s]

complaints of pain and make proper clinical findings” and “fail[ing] to refer

[Appellant] to the hospital for treatment.” Amended Complaint, 4/6/2017, at

paragraph 55. The amended complaint also alleged that Khushman was liable

to Appellant for fraud. Appellant alleged that Khushman falsely represented

himself as a doctor, which induced Appellant to rely on Khushman’s advice

and delay emergency room treatment. Khushman did not file a response to

Appellant’s amended complaint and the prothonotary entered a default

judgment against him on June 1, 2017.

     Appellant proceeded to an assessment of damages bench trial on July

19, 2017, pursuant to Pa.R.C.P. 1037(b)(1). Appellant was the only witness

to testify at the damages trial; Khushman failed to appear.      “[Appellant]

introduced [] photographs of his injury[,] Khushman’s forged credentials, the

[a]mended [c]omplaint, and Khushman’s deposition testimony. [Appellant]

did not introduce any medical records[,] expert medical reports[,] or

medical testimony.”     Trial Court Opinion, 9/26/2018, at 2 (emphasis in

original). Appellant explained his relationship to Khushman and Khushman’s

representations regarding his medical background.    Appellant testified that

                                    -5-
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around September 15, 2010, Khushman examined his injury and advised him

that he did not need to go to the emergency room. N.T., 7/19/2017, at 19.

Appellant testified that “the leg was hurting” between September 15th and the

next visit with Khushman on September 20, 2010, when Khushman again told

him “hang in there. It will heal.” Id. Appellant described the “extreme” pain

he felt in his foot on September 29, 2010, when he presented to the hospital,

and his devastation at the loss of his toes a few days later. Id. at 23, 27.

Appellant vaguely described the multiple surgeries the doctors performed on

him between September 29, 2010 and October 6, 2010. Appellant removed

his shoe and sock to show the court the “result” of the amputation and

described the changes in his lifestyle since the amputation. Id. at 29-32.

       On August 10, 2017, the trial court issued its decision, which awarded

Appellant zero dollars in damages.3            Appellant filed a motion for post-trial

relief, alleging that the trial court erred in awarding no damages. On October

12, 2017, after a hearing on the post-trial motion, the court entered an order,

which granted Appellant’s motion in part and denied it in part. Specifically,

____________________________________________


3 Appellant’s amended complaint did not demand a sum certain of damages.
His prayers for relief simply indicated “a sum in excess of the local arbitration
limits[.]” Amended Complaint, at 13. Neither the amended complaint nor the
original complaint made a claim for punitive damages. At the trial on
damages, Appellant’s counsel argued for punitive damages based on fraud,
however, Appellant’s post-trial motion did not assign error to the trial court’s
decision not to award punitive damages. Appellant’s 1925(b) statement
similarly did not include an allegation of error regarding punitive damages.
Thus, Appellant did not preserve the issue for appellate review. See Pa.R.A.P.
227.1(b)(2). Moreover, Appellant does not argue in his brief that the trial
court should have awarded punitive damages.

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the amended order confirmed the award of zero dollars in damages, but

clarified the basis for the award, stating,

       [t]he court finds that:

    a. [Appellant] failed to present sufficient credible evidence regarding
       the causal relationship between his injury on September 13, 2010
       when he injured his leg (or shin) and the amputation involving his
       toes and any and all other damages claims; and

    b. [Appellant] failed to prove by clear and convincing evidence that
       defendant’s fraud was a factual cause of any injury or loss to
       [Appellant]. See Lokay v. Lehigh Valley Co-op. Farmers,
       Inc., 492 A.2d 405, 410 (Pa. Super. 1985) (“Damages for fraud
       are limited to what losses were immediately and proximately
       caused by the fraud.”).

Trial Court Order, 10/12/2017, at 2.             The trial court elucidated that the

averments of proximate cause in Appellant’s amended complaint were

conclusions of law to which no responsive pleading is required. It therefore

determined that causation was not deemed admitted by Khushman’s failure

to respond, and Appellant needed to prove causation at the damages trial.

Moreover, the trial court “concluded that without the aid of a medical expert,

it could not determine [which], if any, of [Appellant’s] injuries were factually

or proximately caused by Khushman’s wrongful conduct.” Trial Court Opinion,

9/26/2018, at 11.

       This appeal followed.4 Appellant presents three issues for our review.


____________________________________________


4  On October 19, 2017, the trial court issued an order instructing Appellant to
file a concise statement of errors complained of on appeal pursuant to Pa.
R.A.P. 1925(b). Appellant complied on November 8, 2017. The trial court
filed its 1925(a) opinion on December 28, 2017.

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J-A07007-19


       1. Did the [t]rial [c]ourt err by essentially reversing [Appellant’s]
          [d]efault [j]udgment and awarding zero dollars?

       2. Did the [t]rial [c]ourt err by holding that [Appellant,] at a trial
          to assess damages, pursuant to 1037(b)(1), must still prove
          the causation element of its [n]egligence [c]laim with expert
          testimony?

       3. Did the [t]rial [c]ourt err by holding that [Appellant] failed to
          prove his [f]raud [c]laim by clear and convincing evidence?

Appellant’s Brief at 7.5

                                       Overview

       At the center of all three issues raised on appeal is the following

question: To what extent does a plaintiff in a tort action, who obtains a default

judgment, have to prove a causal connection between the tortious conduct of

the defendant and the damages sought? Appellant argues that the trial court

erred by awarding zero dollars in damages on the grounds that Appellant failed

to present evidence demonstrating a causal relationship between Khushman’s

actions and the damages sustained by Appellant. Appellant asks this Court to

vacate the decision of the trial court and remand for a new assessment of

damages hearing.

       The factual basis of Appellant’s claims is that Khushman, “falsely

represented himself as a doctor and his advice as legitimate medical advice.


____________________________________________


5 Appellant frames his third issue in a manner that suggests a challenge to a
ruling which held that he did not establish liability for his fraud claim. The
development of this issue in Appellant’s brief, however, shows that Appellant
challenges only the trial court’s conclusion that he is entitled to damages which
he shows are causally linked to Khushman’s admitted fraudulent conduct.

                                           -8-
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[Appellant] relied on that advice, and as a result, delayed seeking legitimate

medical treatment for his injury.” Appellant’s Brief at 36. Appellant argues

that by virtue of the default judgment, he was entitled to damages for both

the negligence and fraud claims, without providing expert medical evidence

regarding causation.   The following exchange between the trial court and

Appellant’s counsel, which took place at the hearing on Appellant’s post-trial

motion, highlights the precise issue at the heart of this case.

      The Court: So to get right to the chase, it is your belief that
      [Appellant] was not required to provide expert testimony with
      respect to medical causation as part of your burden of proving
      damages at an assessment-of-damages trial?
                                  ...

      The Court: So, for instance, in answering my question, suppose
      [Appellant] said as a result of dropping furniture on his shin, you
      know, he developed some sort of disorder in his knee that required
      reconstructive surgery several weeks later.        Should I have
      included that, too, in the amount of damages to be awarded to
      [Appellant]?

      Mr. Bravette: Because [Khushman] failed to respond to the
      [c]omplaint and everything would be deemed [] true, then in that
      case, yes, Your Honor.

      The Court: So if he came in and said that he developed an ear
      infection or problem with his teeth or a neurological or
      cardiological problem[]—in other words, everything [Appellant]
      would testify to at the assessment of damages trial, I must,
      as a matter of law, include it in the assessment of damages
      because you already obtained a [default judgment] against
      [Khushman]; is that your view?

      Mr. Bravette: Yes, Your Honor.

N.T., 10/11/2017, at 8-9 (emphasis added).          Appellant’s contention, in

essence, is that the default judgment established liability, and therefore

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causation, for purposes of both the negligence and fraud claims. Appellant

thus concludes that he needed only to show the extent of the damages he

suffered, not that those damages were the result of Khushman’s actions or

inactions. We disagree.

        Appellant relies on Pennsylvania Rule of Civil Procedure 1037(b)(1) to

support his view that he had no obligation to present evidence of causation at

the assessment of damages trial.6 Pa.R.C.P. 1037(b)(1) states the following.

        (b)   The prothonotary, on praecipe of the plaintiff, shall enter
              judgment against the defendant for failure to file within the
              required time a pleading to a complaint which contains a
              notice to defend or, except as provided in subsection (d),
              for any relief admitted to be due by the defendant’s
              pleadings.

        (1)   The prothonotary shall assess damages for the amount to
              which the plaintiff is entitled if it is a sum certain or which
              can be made certain by computation, but if it is not, the
              damages shall be assessed at a trial at which the
              issues shall be limited to the amount of damages.

Pa.R.C.P. 1037(b)(1) (emphasis added).

        We are mindful that “[t]he interpretation and application of a

Pennsylvania Rule of Civil Procedure presents a question of law. Accordingly,

to the extent that we are required to interpret a rule of civil procedure, our

standard of review is de novo, and our scope of review is plenary.” Keller v.

Mey, 67 A.3d 1, 5 (Pa. Super. 2013), quoting Gray v. Buonopane, 53 A.3d

829, 834 (Pa. Super. 2012).


____________________________________________


6   Appellant cites no case law to support this contention.

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       Appellant argues that, “issues of duty, breach, and causation are not

relevant to damages assessment[s] after a default judgment is obtained[.]”

Appellant’s Brief at 24. However, the case upon which Appellant relies for this

proposition, Burkey v. Burkey, 1998 WL 254005 at 3 (E.D. Pa. 1998), is

inapposite and not controlling on this Court.7

       At the outset, we note that Burkey is readily distinguishable for two

reasons. First, the facts of this case and the type of harm involved resemble

a medical malpractice action, which under MCARE8 would require expert

medical testimony on the issues of duty, breach, and causation. Fessenden

v. Robert Packer Hosp., 97 A.3d 1225, 1229 (Pa. Super. 2014). We also

note that Khushman is not, in fact, a licensed physician. Our task is further

complicated by the fact that Khushman has completely ceased participation in

this matter: he did not file a petition to open or strike the default judgment,

he did not attend the assessment of damages trial, and he did not file a brief

or take part in any of the proceedings on appeal.       The complete lack of

adversarial development of this action has significantly hampered our task of

appellate review.      Indeed, no one has cited, and we have been unable to



____________________________________________


7Burkey involved a plaintiff who fell and was injured on the defendants’ steps.
The trial court in Burkey found that expert testimony was not necessary for
a fact-finder to determine that a scar would remain for the foreseeable future.
The case did not in any way address the causation question at issue here.

8The Medical Care Availability and Reduction of Error Act ("MCARE"), 40 P.S.
§ 1303.101 et seq.

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locate, any Pennsylvania case law that addresses the causation and damage

issues implicated in this appeal. However, a review of how other jurisdictions

have addressed the causation question at issue informs our disposition of the

matters raised herein.

                         Default Judgments Generally


      A default judgment operates as an admission by the defendant of all the

well-pleaded facts alleged in the complaint. Wilson v. Maryland Cas. Co.,

105 A.2d 304, 312 (Pa. 1954). Generally, “[b]y virtue of entering [a] default

judgment on the docket, the Prothonotary precludes the opponent from

challenging   his   or   her   liability.”       Mother’s   Restaurant,   Inc.   v.

Krystkiewicz, 861 A.2d 327, 335 (Pa. Super. 2004).

      Once the court enters a default judgment and the time for appeal

expires, the defaulting party cannot collaterally attack the judgment on the

grounds that the pleadings were insufficient to support it. Signora v. Liberty

Travel, Inc., 886 A.2d 284, 291-292 (Pa. Super. 2005), overruled on other

grounds by Andrews v. Cross Atl. Capital Partners, Inc., 158 A.3d 123

(Pa. Super. 2017). In these situations, a default judgment can conclusively

resolve issues that are purely questions of law. Id. Where a defendant did

not petition to open or strike a default judgment, liability is conclusively

established for purposes of appeal. See Gall v. Crawford, 982 A.2d 541,

564 (Pa. Super. 2009) (in an action based on breach of contract for the sale

of real estate, defendant’s argument on appeal that plaintiff’s complaint failed


                                        - 12 -
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to plead every element of the contract was an impermissible collateral attack

on the entry of the default judgment and liability was conclusively

established).

       Here, Appellant’s amended complaint, coupled with the default

judgment, established that Khushman falsely portrayed himself as a doctor

and undertook to provide medical treatment and care to Appellant. Further,

it was established that Khushman’s statements and conduct caused Appellant

to delay seeking proper medical treatment. As such, in light of the default

judgment, Appellant conclusively established that Khushman was liable under

negligence and fraud theories for his actions.9 For the reasons that follow,




____________________________________________


9 Based on the amended complaint, Appellant’s default judgment on the
negligence count would likely have been voidable by Khushman, had he
petitioned to strike the judgment. To sustain a negligence action, Appellant
needed to plead that Khushman owed him a duty, that he breached that duty,
that Khushman’s breach was the proximate cause of Appellant’s harm, and
that Appellant suffered actual damages.           Duty is a question of law.
Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012). Appellant’s
amended complaint imposes an extremely heightened standard of care on
Khushman, who is not a physician. Appellant’s allegations of negligence in
the amended complaint include failure to order various tests, failure to make
a diagnosis of vascular insufficiency, failure to properly treat Appellant based
on his medical history, and failure to refer Appellant to the hospital. Amended
Complaint, 4/6/2017, at paragraph 55. There is a good argument to be made
that such duties cannot be imposed on a layperson. However, Khushman
failed to defend this action or move to strike the judgment, thus, we do not
consider these issues.




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however, we find that while a default judgment establishes liability—legal

responsibility—it does not by itself entitle a plaintiff to all claimed damages.10

                   Default Judgments, Causation, and Damages

       Although no Pennsylvania court has explicitly addressed the question of

whether a plaintiff in a negligence action who obtained a default judgment has

the burden, at a trial for damages, to prove that his or her injuries were caused

by the defendant’s negligence, courts in other jurisdictions have addressed

just that issue. A Texas case, Morgan v. Compugraphic Corp., 675 S.W.

2d. 729 (Tex. 1984), is particularly instructive. In that case, the plaintiff filed

a complaint against the defendant under a theory of negligence for injuries

she sustained as a result of inhaling chemical fumes released from a

typesetting machine. The plaintiff obtained a default judgment based on the


____________________________________________


10  Notably, Appellant’s amended complaint is poorly drafted. It simply
restates much of what was alleged in the original complaint, including
allegations against and references to parties that were dismissed from the
action long before Appellant filed the amended complaint. There is language
in the amended complaint which seems to allege that Khushman was the
proximate cause of Appellant’s harm. However, as the trial court noted in its
opinion, Appellant’s amended complaint references only Presbyterian Hospital
Medical Center and the Trustees of the University of Pennsylvania as being a
“substantial factor and the legal cause of [Appellant’s] harm.” Amended
Complaint at 56-57. Presumably, this is a simple drafting error. Where
causation and damages are the crux of the case, however, drafting errors and
broad, general allegations of causation in the amended complaint are
problematic. See Thomson v. Wooster, 114 U.S. 104, 111 (1885) (“The
bill, when confessed by default of the defendant, is taken to be true in all
matters alleged with sufficient certainty; but in respect to matters not alleged
with due certainty, or subjects which from their nature and the course of the
court require an examination of details, the obligation to furnish proof rests
on the complainant”).

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defendant’s failure to answer the complaint. After a hearing on damages, at

which only the plaintiff testified, the court awarded the plaintiff $200,000.00

in damages. The defendant appealed to the Dallas Court of Appeals. The

appeals court held that the plaintiff had the burden of proving that her injuries

were proximately caused by the defendant, which she had not done, and

remanded the case for a trial on the merits. Morgan appealed that decision

to the Supreme Court of Texas. The Supreme Court of Texas reached the

conclusion that the plaintiff was, “required to prove a causal nexus between

her injuries and her exposure to chemical fumes.” Id. at 731. In so holding,

the Supreme Court of Texas reasoned:

      In a personal injury case, the plaintiff typically alleges that the
      defendant’s conduct caused an event—an automobile accident, a
      fall, or in this case, the release of chemical fumes—and that this
      event caused the plaintiff to suffer injuries for which compensation
      in damages should be paid. Thus, at trial [for damages] the
      plaintiff must establish two causal [n]exuses in order to be entitled
      to recovery: (a) a causal nexus between the defendant’s conduct
      and the event sued upon; and (b) a causal nexus between the
      event sued upon and the plaintiff’s injuries.

      The causal nexus between the defendant’s conduct and the event
      sued upon relates to the liability portion of plaintiff’s cause of
      action.   Here, we use the term “liability” to mean legal
      responsibility for the event upon which suit is based… It is this
      causal nexus between the conduct of the defendant and the
      event sued upon that is admitted by default…

      Whether the event sued upon caused any injuries to the plaintiff
      is another matter entirely. The causal nexus between the event
      sued upon and the plaintiff’s injuries is strictly referable to the
      damages portion of the plaintiff’s cause of action. Even if the
      defendant’s liability has been established, proof of this causal
      nexus is necessary to ascertain the amount of damages to which
      the plaintiff is entitled. This is true because the plaintiff is entitled
      to recover damages only for those injuries caused by the event

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       made the basis of suit; that the defendant has defaulted does
       not give the plaintiff the right to recover for damages which
       did not arise from his cause of action.

Id. at 731-732.

       The Second Circuit Court of Appeals has similarly held that a default

judgment does not entitle a plaintiff to “a blank check to recover from [the

defendant] any losses it ever suffered from whatever source.” Trans World

Airlines, Inc. v. Hughes, 449 F.2d 51, 70 (2nd Cir. 1971), reversed on other

grounds, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363

(1973) (after a default judgment was entered on a complaint that alleged anti-

trust violations, “it was incumbent upon [the plaintiff] to introduce evidence

showing the extent of the damages which resulted from the antitrust

violations established by the default judgment”) (emphasis added).

       Moreover, the Restatement (Second) of Torts provides,
       The same rules which determine whether the actor’s conduct is or
       is not a legal cause of another’s harm are applicable irrespective
       of whether the relation of legal cause and effect is necessary to
       establish liability or to establish the amount of damages to be paid
       where liability is admitted or proved. In the one case as in the
       other, the actor’s negligent conduct must be a substantial factor
       in bringing about the other’s harm[.]

Restatement (Second) of Torts § 454(b).11 We find these rules governing the

inter-play between default judgments (or admitted liability) and proof of

____________________________________________


11 Our Supreme Court has not adopted this provision of the Restatement
(Second) of Torts. Nevertheless, that Court “has not hesitated to adopt
sections of the Restatement (Second) of Torts (1965) when our common-law
precedents varied from the Restatement or when the Pennsylvania common
law provided no answer. See, e.g., Reitmeyer v. Sprecher, 243 A.2d 395



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damages, while not explicitly outlined in Pennsylvania case law, are consistent

with Pennsylvania jurisprudence.

       We examine prior Pennsylvania cases to demonstrate this conclusion.

Our decision in Gall v. Crawford, 982 A.2d 541 (Pa. Super. 2009) involved a

contract for the sale of real estate in which the Crawfords agreed to sell, and

the Galls agreed to buy, a parcel of land in Allegheny County for $30,000.00.

The Galls paid the purchase price to the Crawfords, but neither party attended

the closing on the scheduled date.             Thereafter, the Galls filed a complaint

seeking a decree ordering the Crawfords to deliver the deed to the property,

lost profits from rental income, damages for lost use, and attorney’s fees. The

complaint also asked the court to issue a preliminary injunction prohibiting the

Crawfords from selling, leasing, or otherwise encumbering the property. The

parties agreed to a stipulated preliminary injunction. The Crawfords did not

respond to the Galls’ complaint and the prothonotary entered a default

judgment against them “for liability only, damages to be assessed at trial[.]”

Id. at 544 (internal quotation omitted). The Crawfords did not file a petition

to open or strike the default judgment, and the case proceeded to a bench

trial on damages. Ultimately, the court ordered the Crawfords to deliver the



____________________________________________


(Pa. 1968) (adopting § 357); Philadelphia Elec. Co. v. Julian, 228 A.2d 669
(Pa. 1967) (adopting §§ 416 and 427); Webb v. Zern, 220 A.2d 853 (Pa.
1966) (adopting § 402A); Jesko v. Turk, 219 A.2d 591 (Pa. 1966) (adopting
§ 339).” Gilbert v. Korvetter, Inc., 327 A.2d 94, 100 (Pa. 1974) (adopting
§ 328D).

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deed to the Galls, but denied the Galls’ request for damages from lost rent

and use of the property. Both parties appealed.

      We affirmed the trial court’s decision not to award damages to the Galls

for lost rent and lost use of the subject property, despite a default judgment

having been entered on a complaint that alleged such damages. Our Court’s

discussion of this issue is instructive.


      [The Galls] first contend that [the Crawfords] conceded the issue
      of damages by virtue of the default judgment which admitted the
      allegations of damages in [the Galls’] complaint. We disagree.
      [The Galls] did not include any specific amount of damages in their
      complaint. Thus, their contention that [the Crawfords] admitted
      to a certain amount of damages is belied by the record.
      Furthermore, it was [the Galls] who requested a trial on the issue
      of damages. They cannot now claim it was error for the trial
      court to hold a trial on the issue of damages simply because
      they do not agree with the trial court’s verdict.

      [The Galls’] alternative contention is that the trial court abused its
      discretion as it had a clear, undisputed factual basis to award the
      damages incurred by [them] for the loss of rental income… [W]e
      disagree with [the Galls’] assertion that the testimony of the
      parties [at the trial on damages] established that [the Galls’] use
      of the [p]roperty was interfered with, that they did not obtain any
      rent from other tenants and could not lease out other portions of
      the building. This summarization of the “parties’” testimony is
      disingenuous at best, as [the Crawfords] clearly offered testimony
      refuting [the Galls’] claim for lost rent and damages… As trier of
      fact, it was for the trial court to resolve the conflicting testimony
      regarding [the Crawfords’] alleged lost rent and lost use. It did
      so, concluding that it was never convinced by a fair preponderance
      of the evidence that [the Galls] were entitled to these monies[.]

Id. at 547-548 (internal quotations and citations to the record omitted)

(emphasis added). This determination encompasses the idea that, despite a

default judgment, the plaintiff is only entitled to damages actually incurred as


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a result of the defendant’s breach.            Gall, however, involved damages

stemming from the breach of a contract for the sale of real estate, not tortious

conduct, as is the case in the matter sub judice.


                           Liability and Damages in Tort

      The principle elucidated in Gall applies with perhaps even greater force

in tort cases where the concepts of liability and damages have always been

closely intertwined. The jurisprudence of the Commonwealth of Pennsylvania

recognizes that, “in the field of personal injury litigation, [] the issues of

liability and damages are generally interwoven and the evidence bearing upon

the respective issues is commingled and overlapping.”             Stevenson v.

General Motors Corp., 521 A.2d 413, 422-423 (Pa. 1987), quoting Brown

v. General Motors Corp., 407 P.2d 461, 464 (Wa. 1965).                Stevenson

discussed this proposition in the context of a bifurcated trial—where the trial

is divided into separate liability and damages portions.       In Stevenson, a

products liability case, the original trial was bifurcated. Following the liability

phase of that trial, the jury found for the plaintiff.      However, during the

damages phase, questions arose regarding possible secondary causes of the

accident. The trial court granted the defendant’s motion for a new trial on

both liability and damages and our Supreme Court upheld that determination.

      The instant case involves the same principles but presented in a slightly

different context. Because the prothonotary here entered a default judgment

against Khushman pursuant to Pa.R.C.P. 1037(b)(1), Appellant technically


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established liability and the only issue at trial was the amount of damages to

which Appellant was entitled. Despite this posture, Appellant still needed to

prove that his injuries and losses arose from the conduct that gave rise to the

suit, as Stevenson suggests.

      Appellant quotes Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super.

2011), stating “where liability is admitted, the lone issue is damages…there is

no justification to admit into evidence any facts concerning the occurrence or

causation of the accident as defendant’s admission of liability renders all such

evidence irrelevant.”    Appellant’s Brief at 23.      Knowles, however, is

distinguishable from the case at bar.     Knowles involved a motor vehicle

accident in which the deceased defendant caused a head-on collision with the

plaintiffs by traveling south in the northbound lane.     The quoted passage

referred to evidence that the deceased was under the influence of alcohol and

cocaine at the time of the accident. Since it was admitted that the deceased

defendant caused the collision that injured the plaintiffs, the extent of the

defendant’s intoxication did not add anything to the question of how much the

plaintiffs were owed for the injuries sustained in the accident. At the damages

trial, the defendant did not contest that all of the injuries for which the

plaintiffs sought damages were caused by the accident. The defendant simply

argued that evidence of intoxication would cause the jury to “punish” the

defendant for drunk driving. This Court agreed but determined that it was

harmless error for the trial court to admit evidence of intoxication. Knowles


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does not alleviate Appellant’s burden to show a causal relationship between

the damages he requests and the conduct giving rise to his suit.

      Here, the default judgment established that Khushman was liable for

negligence and fraud.      Appellant alleged many injuries and damages,

however, he is only entitled to recover from Khushman for that which was the

result of Khushman’s tortious conduct. See Hawley v. Donahoo, 611 A.2d

311, 312 (Pa. Super. 1992) (“The general rule is that victims must be

compensated for all their losses caused by the negligence of another.”)

(emphasis added); Lokay v. Lehigh Valley Co-op. Farmers, Inc., 492 A.2d

405, 410 (Pa. Super. 1985) (“Damages for fraud are limited to what losses

were immediately and proximately caused by the fraud.”).

      Many other Pennsylvania cases have alluded to the issue presented in

the present case. In King v. Fayette Aviation, 323 A.2d 286 (Pa. Super.

1974), this Court held that the trial court erred in opening a default judgment

entered against the defendant for failure to answer. In so holding, however,

this Court concluded that the plaintiff was not entitled to a judgment in the

amount claimed, despite reinstatement of the default judgment.          Instead,

plaintiff’s damages were limited to the reasonable value of the subject aircraft,

to be determined at an assessment of damages trial. Id. at 287. Underlying

this conclusion is the idea that, even where a default judgment is obtained, a

defendant can only be responsible for the actual damages that he caused.




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      In McArdle v. Panzek, 396 A.2d 658, (Pa. Super. 1978), the

defendant, Panzek, admitted liability for a car accident that injured plaintiff,

McArdle. At the trial on damages, McArdle sought recovery for her medical

expenses and sclerosis of her sacroiliac joints. McArdle’s only medical expert

testified that he could not express an opinion as to whether the sclerosis was

caused by the accident for which Panzek had admitted liability. This Court

held that, under the circumstances, McArdle was required to prove by expert

medical testimony that her sacroiliac injury was caused by the automobile

accident. Those circumstances included the following facts.

      (1) the injury did not manifest itself until two and a half months
      after the accident, (2) an examination which occurred shortly after
      the accident revealed a different, temporary, and more minor
      injury to the same part of the body where a more serious injury
      later developed, (3) the first examination also failed to show any
      symptoms of the injury which later developed, and (4) the injury
      was to a healthy woman with no prior history of the injury
      suffered.

McArdle, 396 A.2d at 662. “Where there is no obvious causal relationship,

unequivocal [m]edical testimony is necessary to establish the causal

connection.” Id. at 660 (citation omitted). This is so even where liability has

been established.

      Similarly, in Neison v. Hines, 653 A.2d 634 (Pa. 1995), the defendant,

Hines, conceded liability for a motor vehicle accident in which she rear-ended

the plaintiff, Neison. At trial, the sole issue to be determined by the jury was

the amount of damages to which Neison was entitled for pain and suffering.

The impact of the accident caused Neison’s head to be thrown backward,

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“shattering the rear window of her two seat sports car.” Id. at 636. Neison

introduced the testimony of two doctors, “who both opined that the injuries

Ms. Neison suffered were directly caused by the automobile accident.” Id.

Hines presented the testimony of another doctor, who examined Neison two

years after the accident. He opined that Neison suffered neck and shoulder

blade sprains, which had healed by the time he conducted his examination.

The jury returned a verdict in favor of Hines, awarding no damages to Neison.

The trial court granted Neison’s post-trial motion for a new trial on the basis

that the verdict was contrary to the evidence and the instructions of the court.

This Court reversed the trial court’s order granting a new trial, and the

Pennsylvania Supreme Court granted allocatur and ultimately reinstated the

decision of the trial court.

      In its opinion, our Supreme Court stated that “the uncontested evidence

amply demonstrates that Ms. Neison was involved in a violent automobile

accident and suffered soft tissue injuries, a cervical sprain, and a herniated

disk.” Id. at 637. The Court noted that a severe collision such as this would

undoubtedly lead to painful injuries, “although the evidence offered at trial left

room for disagreement as to whether the pain resulting from Ms. Neison’s

injuries was as severe as she claimed or whether the accident was in fact

causative.” Id. at 638. This clearly indicates that although Hines admitted

liability for the accident that injured Neison, Neison was only entitled to collect

damages for pain that was caused by the accident.


                                      - 23 -
J-A07007-19


      Our Supreme Court’s rationale in Neison mirrors that of the Texas

Supreme Court in Morgan, supra.         In Neison, the defendant conceded

liability for negligence in the event sued upon, i.e., the car accident.   The

plaintiff, however, was still required to prove that the damages she alleged

were the result of the accident—that there was a causal nexus between her

pain and the defendant’s negligence. Our Supreme Court found the fact that

“[b]oth [of] Ms. Neison’s experts unequivocally testified that she suffered

objective injuries directly attributable to her accident with Ms. Hines” to

be dispositive in its determination that the trial court did not abuse its

discretion in ordering a new trial where the jury awarded no damages. Id. at

640 (emphasis added).


      In his brief, Appellant essentially acknowledges the problem that both

this Court and the trial court have encountered in this case.

      [W]ith respect to [Appellant’s] negligence claim, the question is
      not whether Mr. Khushman committed medical malpractice or
      performed below the applicable standard of care, which does not
      apply here as Mr. Khushman is not a licensed doctor. Instead, the
      question is whether Mr. Khushman’s negligence caused
      [Appellant] to delay seeking legitimate medical treatment and
      what damages stemmed from that delay.

Appellant’s Brief at 26 (emphasis added). As previously stated, by virtue of

the default judgment, Appellant established that Khushman’s culpable conduct

caused him to delay seeking treatment.       At the damages trial, Appellant

needed to show whether and to what extent, in terms of both physical




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consequences and monetary damages, the delayed treatment exacerbated his

original injury, up to and including the need for amputation.

      Appellant did not present sufficient evidence of a causal connection

between that delay and the ultimate partial amputation of his foot. At the

assessment of damages hearing, Appellant testified that Khushman visited

him on September 20, 2010, and advised him to see a physical therapist.

Appellant presented at the hospital on September 29, 2010, nine days after

the last visit with Khushman.     Appellant testified that, upon arrival at the

hospital, a nurse indicated that his foot was gangrenous.        Then, Appellant

stated, “[t]he physician woke me up and said, [w]e performed surgery on you

for these reasons.” N.T., 7/19/2017, at 26. Appellant did not identify what

“those reasons” were. When asked by counsel when he learned that his foot

would be partly amputated, Appellant stated the following. “That was after

the 29th. I had the leg surgeries on the blood vessels on the 29th, recuperated

on the 30th, and then I had the amputation on October the 6th.” Id. The

record contains absolutely no medical explanation of the reason for the initial

“leg surgeries” or the amputation, or whether those surgeries were

necessitated by Appellant’s delay in presenting to the hospital.

      The trial court asked Appellant’s counsel, “[a]re you just asking me to

take judicial notice that a laceration to the shin will result in an amputation of

the toes?” N.T., 7/19/2017, at 43. Appellant’s counsel stated, “those dots

have been connected, [Khushman] has already admitted them. He’s admitted


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them—the allegation[] in the [c]omplaint is that the laceration to the shin led

to a loss of blood in his foot, which led to ultimately the amputation.” N.T.,

7/19/2017, at 44.          In actuality, the complaint does not contain that

allegation.12

       In a similar exchange at the hearing on Appellant’s post-trial motion,

Appellant’s counsel attempted to explain the causal connection between

Khushman’s conduct and the amputation of Appellant’s toes.


       The Court: [A]re you saying that he developed an infection on
       the bottom part of his foot?

       [Counsel]: I don’t believe that it was an infection. I believe that
       it was a condition caused by the lack of proper treatment to his
       original injury.

       The Court: Yeah. But I am trying to understand medically the
       relationship between the partial amputation of some of his toes
       and the cut on his shin; that’s the problem. I don’t think you’re
       able to actually articulate it, and [Appellant] wasn’t either.”

N.T., 10/11/2017, at 7.




____________________________________________


12 As noted previously, the allegations of causation in Appellant’s amended
complaint were very broad and general. See Amended Complaint, 4/6/2017,
at paragraph 50 (“[Appellant’s] grievous injuries were caused by the wrongful
acts, negligence and carelessness of all Defendants and their agents,
ostensible agents, servants and employees.”); Id. at paragraph 93, (“As a
direct result of the fraudulent treatment and care rendered by Defendant
Khushman, [Appellant] suffered extensive physical pain, mental anguish,
disfigurement and other economic and non-economic losses.”). The amended
complaint does not refer to a loss of blood in the foot. Moreover, it does not
allege that such a loss resulted in the amputation of Appellant’s toes.



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J-A07007-19


       Counsel’s “belief” that Appellant’s substantial injuries were caused by

Khushman’s actions or inactions is insufficient to determine that Appellant is

entitled to damages from Khushman for those injuries. We agree with the

trial court that expert medical testimony was necessary to explain the nature

and extent of Appellant’s injuries which flowed from Khushman’s culpable

conduct.     Based on the record before us, it is entirely unclear whether

Appellant’s delay in presenting to the hospital caused him to develop the

various conditions he listed in the amended complaint.13 Moreover, Appellant

needed an expert to testify that the delay caused by Khushman led to the

“open left femoral thrombectomy, left leg angiogram, left femoral to below

knee popliteal bypass with translocated non-reversed saphenous vein” and

“transmetatarsal amputation.” Amended Complaint, 4/6/2017, at paragraphs

47 and 49. The average layperson could not make the determination, without

expert testimony, that these disorders and surgeries were the result of

Appellant’s delay in presenting to the hospital.

       In conclusion, a plaintiff who obtains a default judgment in a tort action

is not relieved of his obligation to provide evidence of a causal connection

between the defendant’s tortious conduct and the damages for which he seeks




____________________________________________


13Appellant was diagnosed with the following, “ischemic left foot/left forefoot
gangrene; acute arterial thrombus…myeloproliferative disorder causing
thrombocytosis; and hypercoagulable gene mutation[.]” Amended Complaint,
4/6/2017, at paragraph 47.

                                          - 27 -
J-A07007-19


relief. In this case, Appellant needed to present expert medical testimony on

that issue as it relates to most of his claimed damages.

      We agree with the trial court that “[Appellant] failed to present sufficient

or credible evidence regarding the causal relationship between his injury on

September 13, 2010...and the amputation involving his toes[.]” Trial Court

Order, 8/10/2017, at paragraph 9. We disagree, however, that there was

insufficient evidence to award “any and all other damages claimed.”           Id.

Appellant testified that on September 15, 2010, Khushman evaluated his leg

injury and told him it was unnecessary to seek additional treatment. He also

testified that his leg was in pain between that day and the next time Khushman

visited him on September 20, 2010.        We believe that Appellant presented

uncontested evidence regarding his pain and suffering that was attributable

to the progression of his leg injury and his delay in seeking legitimate

treatment. We remand for a hearing on damages, narrowly limited to pain

and suffering related to the advancement of the leg injury caused by

Khushman’s advice to delay seeking additional treatment.

      Judgment affirmed in part and reversed in part. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




                          - 29 -
