J-A28043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN AND ROBERT YAMIALKOWSKI,                   IN THE SUPERIOR COURT OF
W/H,                                                   PENNSYLVANIA

                            Appellants

                       v.

KENNETH M. BERRY, M.D. AND
PROFESSIONAL EMERGENCY CARE, P.C.
A/K/A ER-ONE INC. AND JAN JOHNSON,
R.N. AND WAYNE MEMORIAL HOSPITAL
AND WAYNE MEMORIAL HEALTH
SYSTEM, INC., AND WAYNE MEMORIAL
HEALTH FOUNDATION, INC.,

                            Appellees                  No. 2280 EDA 2015


                 Appeal from the Judgment Entered July 6, 2015
                 in the Court of Common Pleas of Wayne County
                       Civil Division at No.: 461-Civil-2013


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED JANUARY 24, 2017

        Appellants, Karen and Robert Yamialkowski, appeal from the judgment

entered against them in favor of Appellees, Kenneth M. Berry, M.D., and

Professional Emergency Care, P.C. a/k/a ER-One Inc., et al., following a jury

trial in this medical malpractice case. We affirm.

        The relevant facts and procedural history of this case are as follows.

On September 17, 2012, Ms. Yamialkowski, who was then forty-nine years

old, presented to the emergency room at Wayne Memorial Hospital with
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A28043-16



complaints of a migraine headache, chest pain, dizziness, and nausea. Dr.

Berry treated Ms. Yamialkowski immediately, based on his belief that her

medical condition was an emergency, and could progress to a stroke. Dr.

Berry ordered an MRI, and intravenous administration of the drug

Phenergan, which carried a black box warning.1             Ms. Yamialkowski’s

symptoms resolved, but she returned to the emergency room two days later

on September 19, 2012, complaining of swelling and pain in her left hand up

to her forearm.

       On August 27, 2013, Appellants filed a complaint alleging that during

the emergency room visit Phenergan was improperly administered in Ms.

Yamialkowski’s left arm, causing her to suffer from Reflex Sympathetic

Dystrophy/Complex Regional Pain Syndrome, as well as other injuries,

____________________________________________


1
   A black box warning or a “boxed warning” is a type pf warning on the
package insert for certain prescription drugs, formatted by a box or border
around the text. The United States Food and Drug Administration uses a
black box warning to signify that the drug carries a significant risk of serious
or life threatening injuries.     See FDA Consumer Health Information,
www.fda.gov/consumers “Boxed Warning.” Phenergan’s warning states in
pertinent part: “Injection can cause severe chemical irritation and damage to
tissues regardless of the route of administration. . . . Due to the risks of
intravenous injection, the preferred route of administration of Phenergan
Injection is deep intramuscular injection.”       (Plaintiffs’ Trial Exhibit 9)
(emphases omitted). However, Appellees’ expert, Dr. Michael Chansky,
testified that administering Phenergan intravenously works well in treating
migraine patients because it gets into the vein and goes to the brain quickly
to alleviate the symptoms of headache and nausea.              (See N.T. Trial,
5/19/15, at 40).      He testified that he does not administer the drug
intramuscularly for complex migraines with nausea because it is not nearly
so effective as intravenous administration and is painful. (See id.).



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including anguish, depression, and anxiety.           The case proceeded to a jury

trial on May 11, 2015.

       Relevant to the instant appeal, during trial, Dr. Berry testified

regarding his recollection of Ms. Yamialkowski’s emergency room visit. (See

N.T. Trial, 5/20/15, at 7-23).                 During cross-examination, Dr. Berry

acknowledged that this testimony differed from his earlier, June 2014,

deposition testimony, because during the deposition, he testified that he had

no memory of treating Ms. Yamialkowski during the emergency room visit.

(See id. at 29).

       On May 22, 2015, the jury returned a verdict in favor of Appellees.

On June 1, 2015, Appellants filed a motion for post-trial relief, seeking

judgment notwithstanding the verdict (JNOV) or alternatively, a new trial.

On July 6, 2015, the trial court denied the motion and entered judgment in

favor of Appellees. Appellants filed a motion for reconsideration, which the

trial court also denied. This timely appeal followed.2

       Appellants raise the following issues for this Court’s review:

       1. Did the trial court err as a matter of law or abuse its
       discretion in failing to grant a new trial based on the surprise
       testimony and supposedly recovered recollection of [Appellee]
       Dr. Kenneth M. Berry, M.D., first disclosed during his testimony
       at trial, that he now remembered his treatment of [Appellant]
       Karen Yamialkowski in the emergency department of Wayne
____________________________________________


2
  Pursuant to the trial court’s order, Appellants filed a timely concise
statement of errors complained of on appeal on August 28, 2015. The trial
court entered an opinion on October 13, 2015. See Pa.R.A.P. 1925.



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      Memorial Hospital on September 17, 2012, in direct contradiction
      of his discovery responses and deposition testimony, in which
      Dr. Berry asserted that he did not recall his treatment of Ms.
      Yamialkowski in the hospital’s emergency department on that
      same date, which discovery responses and deposition testimony
      [Appellees] never corrected, supplemented, or updated, in clear
      violation of the requirements of Pennsylvania Rule of Civil
      Procedure 4007.4(2)(b), to the substantial prejudice of
      [Appellants]?

      2. Did the trial court err as a matter of law or abuse its
      discretion in failing to grant a new trial notwithstanding that the
      trial court had made repeated prejudicial remarks to the jury and
      repeatedly admonished [Appellants’] counsel during her cross-
      examination of Dr. Berry, including statements that [Appellants’]
      cross-examination and the trial were taking too long and were
      wasteful of the trial court’s and the jurors’ time?

      3. Did the trial court err as a matter of law or abuse its
      discretion in failing either to grant a new trial or, at the very
      least, to hold a hearing concerning whether juror number 11’s
      failure to disclose that her husband had a close business
      relationship with Wayne County Memorial Hospital and its
      finances resulted in the improper empaneling of juror number
      11, who had she given truthful answers in voir dire would have
      been dismissed from service on the jury for cause by the trial
      court or via use of one of the [Appellants’] peremptory
      challenges?

      4. Did the trial court err as a matter of law or abuse its
      discretion in failing to grant a new trial or judgment
      notwithstanding the verdict as to liability in favor of [Appellants]
      given that the jury’s finding of no liability was against all or, at
      the very least, the manifest weight of the evidence, and even
      [Appellees’] medical expert conceded that the drug whose
      administration caused severe injury to [Ms. Yamialkowski’s]
      hand and arm was negligently and improperly administered?

(Appellants’ Brief, at 2-4).

            An appellate court will reverse a trial court’s grant or
      denial of a JNOV only when the appellate court finds an abuse of
      discretion or an error of law. Our scope of review with respect to


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     whether judgment n.o.v. is appropriate is plenary, as with any
     review of questions of law.

                 In reviewing a motion for judgment n.o.v., the
           evidence must be considered in the light most
           favorable to the verdict winner, and he must be
           given the benefit of every reasonable inference of
           fact arising therefrom, and any conflict in the
           evidence must be resolved in his favor. Moreover, a
           judgment n.o.v. should only be entered in a clear
           case and any doubts must be resolved in favor of the
           verdict winner. Further, a judge’s appraisement of
           evidence is not to be based on how he would have
           voted had he been a member of the jury, but on the
           facts as they come through the sieve of the jury’s
           deliberations.

                 There are two bases upon which a judgment
           n.o.v. can be entered: one, the movant is entitled to
           judgment as a matter of law, . . . and/or two, the
           evidence was such that no two reasonable minds
           could disagree that the outcome should have been
           rendered in favor of the movant[.] With the first a
           court reviews the record and concludes that even
           with all factual inferences decided adverse to the
           movant the law nonetheless requires a verdict in his
           favor, whereas with the second the court reviews the
           evidentiary record and concludes that the evidence
           was such that a verdict for the movant was beyond
           peradventure.

           Questions of credibility and conflicts in the evidence are for
     the [fact-finder] to resolve and the reviewing court should not
     reweigh the evidence. If there is any basis upon which the jury
     could have properly made its award, the denial of the motion for
     judgment n.o.v. must be affirmed.

             In reviewing a trial court’s denial of a motion for a new
     trial, the standard of review for an appellate court is as follows:

                 [I]t is well-established law that, absent a clear
           abuse of discretion by the trial court, appellate
           courts must not interfere with the trial court's
           authority to grant or deny a new trial.

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                                  *    *    *

                  Thus, when analyzing a decision by a trial
            court to grant or deny a new trial, the proper
            standard of review, ultimately, is whether the trial
            court abused its discretion.

           Moreover, our review must be tailored to a well-settled,
      two-part analysis:

                  We must review the court’s alleged mistake
            and determine whether the court erred and, if so,
            whether the error resulted in prejudice necessitating
            a new trial. If the alleged mistake concerned an
            error of law, we will scrutinize for legal error. Once
            we determine whether an error occurred, we must
            then determine whether the trial court abused its
            discretion in ruling on the request for a new trial.

Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288–89 (Pa. Super. 2015)

(citations omitted).

      Appellants first argue that, pursuant to Pennsylvania Rule of Civil

Procedure 4007.4(2)(b), Appellees were required to amend Dr. Berry’s

deposition testimony prior to trial to reflect that his memory of his

emergency room treatment of Ms. Yamialkowski had been restored.        (See

Appellants’ Brief, at 20-28). Appellants contend Appellees had an obligation

to notify them “[Dr. Berry’s] deposition testimony that may have been

truthful when given . . . was no longer true and correct at a later point.”

(Id. at 23).   Appellants further maintain that this failure to update them

deprived them of a fair trial because Appellees “ambush[ed]” them on the

subject of Dr. Berry’s decision-making during the emergency room visit.

(Id. at 28; see id. at 26-28). This issue does not merit relief.

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J-A28043-16


      Rule 4007.4(2)(b) states:

      A party or an expert witness who has responded to a request for
      discovery with a response that was complete when made is
      under no duty to supplement the response to include
      information thereafter acquired, except as follows:


                                  *    *    *

            (2) A party or an expert witness is under a duty
      seasonably to amend a prior response if he or she obtains
      information upon the basis of which he or she knows that . . .
      (b) the response though correct when made is no longer true.

Pa.R.C.P. 4007.4(2)(b) (emphases added).

      The comment to the Rule provides in relevant part: “The automatic

obligation is limited to . . . (b) amendment of a prior answer if a party or

expert witness obtains information on the basis of which he knows that

the original response was incorrect, or, if correct when originally made, is no

longer true.” Pa.R.C.P. 4007.4, comment (emphases added).

      Here, Dr. Berry testified at trial that he recalled certain aspects of Ms.

Yamialkowski’s emergency room visit, but that he did not recall other

aspects. (See N.T. Trial, 5/20/15, at 7-8). On cross-examination, Dr. Berry

acknowledged that during his deposition, he did not recall his actual

emergency room treatment of Ms. Yamialkowski, but clarified, “at this time I

do recall certain things.”   (Id. at 30; see id. at 29).     When Appellants’

counsel questioned him regarding this discrepancy, Dr. Berry explained that

he had initially confused Ms. Yamialkowski with another patient who

presented with similar symptoms, and that his memories “fell into place for

[him]” after this other patient returned to the emergency room as a visitor.


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(Id. at 34; see id. at 30, 33-34). Appellants’ counsel noted that Dr. Berry

was “changing” his testimony, and proceeded to cross-examine him

extensively, questioning his “sudden memory” and credibility.        (Id. at 30,

34; see id. at 29-36).

       Upon review, we conclude that Dr. Berry’s refreshed or changed

recollection is not “obtain[ed] information,” and therefore does not fall under

the ambit of Rule 4007.4.3 Pa.R.C.P. 4007.4(2)(b). Furthermore, we agree

with the trial court that: this was an issue of credibility; Appellants’ counsel

vigorously challenged Dr. Berry’s credibility on cross-examination; and it

was for the jury to decide whether to believe his testimony. (See Trial Court

Opinion, 10/13/15, at 3); see also Dubose v. Quinlan, 125 A.3d 1231,

1244 (Pa. Super. 2015), appeal granted in part, 138 A.3d 610 (Pa. 2016)

(“matters of credibility are for the jury, and they are free to believe all, part,

or none of the evidence presented.”). Therefore, Appellants’ first claim does

not merit relief.




____________________________________________


3
  We note that Appellants’ reliance on Leahy v. McClain, 732 A.2d 619 (Pa.
Super. 1999), appeal denied, 751 A.2d 192 (Pa. 1999), is misplaced. (See
Appellants’ Brief, at 24-25). In Leahy, this Court determined the trial court
properly excluded photographs from introduction at trial where the appellant
failed to amend her response to interrogatories and request for production of
documents “when she came into possession of [] new material that was not
included in her previous response.” Leahy, supra at 624. Here, Dr. Berry
did not come into possession of any new material, and the facts of Leahy
are inapposite to the instant case.



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      In their second issue, Appellants’ argue the trial court displayed a one-

sided animosity towards their counsel during Dr. Berry’s testimony, by

repeatedly admonishing that her cross-examination was too lengthy and

wasteful of the court’s and the jury’s time.   (See Appellants’ Brief, at 29-

40). Appellants maintain that the court’s behavior demonstrated a bias in

favor of Appellees, communicated to the jury that it should decide the case

against Appellants, and was prejudicial to an extent necessitating a new

trial. (See id. at 37-40). This issue is waived and would not merit relief.

      It is well-settled that “[i]n order to preserve an issue for appellate

purposes, the party must make a timely and specific objection to ensure that

the trial court has the opportunity to correct the alleged trial error.”

Rancosky v. Washington Nat. Ins. Co., 130 A.3d 79, 102 (Pa. Super.

2015), appeal denied, 145 A.3d 727 (Pa. 2016) (citations omitted).

      Here, a review of the record reflects Appellants’ counsel failed to

object contemporaneously to the trial court’s allegedly improper comments.

(See N.T. Trial, 5/20/15, at 98). When counsel raised the issue in chambers

the following morning, she requested a curative jury instruction, and

expressly stated that she was not asking for a mistrial. (See N.T. Chamber

Conference, 5/21/15, at 35-36). The court gave a curative instruction to the

jury immediately thereafter, noting that it was not blaming either party for

the length of the trial. (See N.T. Trial, 5/21/15, at 2). Appellants’ counsel

did not object to the instruction. (See id.). Accordingly, Appellants’ second

claim is waived. See Rancosky, supra at 102.

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      Moreover, after review of the trial court’s comments in context, we

find Appellants’ description of them as an “outburst” and “improper[]

behav[ior]” a disingenuous mischaracterization, which is belied by the

record. (Appellants’ Brief, at 31, 37). Appellants’ second issue is specious.

      Appellants next challenge the trial court’s decision not to grant a new

trial, or to hold a hearing after the trial concluded, on the basis of Juror

Number Eleven’s (Kimberly Rickard’s) failure to disclose her husband’s close

working relationship with Appellee hospital.   (See Appellants’ Brief, at 40-

45). Appellants baldly allege they learned, through their investigation of Ms.

Rickard after trial, that her husband: worked as planning director for the

Wayne County Department of Planning; attended meetings with hospital

officials; and was involved in directing county funds to the hospital. (See

id. at 42; Appellants’ Motion for Post-Trial Relief, 6/01/15, at 9 ¶ 36). This

issue is waived.

      As the trial court explained:

            At the time the jury was impaneled in the present case,
      [Appellants] did not ascertain the existence of any reasons for
      objection to the jurors. [Appellants], therefore, neither objected
      to any potential juror who remained impaneled nor did they raise
      any objection when the final jury was sworn in.           Because
      [Appellants] failed to object at the proper time, they have
      waived that right. Such a waiver may not be excused in this
      case because there is no evidence that [Appellants] were
      intentionally misled or deceived by juror number eleven or the
      opposing party.

(Trial Ct. Op., at 5).




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J-A28043-16



          We agree with the trial court that Appellants waived this issue by

failing to timely object to Ms. Rickard’s service on the jury. See Rancosky,

supra at 102; see also Pa.R.A.P. 302(a).               Furthermore, a review of

Appellants’ post-trial motion reflects they never asked the court to hold a

hearing to substantiate their bare allegations regarding Ms. Rickard’s

husband.       (See Appellants’ Motion for Post-Trial Relief, 6/01/15, at 1-11).

They simply asked the court to grant a new trial based on their unsupported

assertions. (See id. at 11). Therefore, Appellants’ third issue is waived.

          In their final issue, Appellants challenge the weight of the evidence

supporting the jury’s verdict. (See Appellants’ Brief, at 46-50). Appellants

argue that the jury ignored the “uncontested evidence” of Appellees’

negligence in rendering its verdict. (Id. at 49). This issue does not merit

relief.

                In evaluating a claim that a verdict is against the weight of
          the evidence, Pennsylvania courts employ a shocks-the-
          conscience litmus. The trial judge’s authority to award a new
          trial  on     weight-of-the-evidence      grounds     is   narrowly
          circumscribed on account of the principle that credibility
          questions are exclusively for the fact finder. The matter is
          couched as discretionary in the trial court, with its role in the
          assessment being afforded primacy in view of its substantially
          closer vantage to the evidentiary presentation as compared to
          that of an appellate court. Relief is available in an appellate
          court only if it can be said that the trial court acted capriciously
          or palpably abused its discretion.

Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1238

(Pa. Super. 2012), appeal denied, 65 A.3d 414 (Pa. 2013) (citation omitted).

          Here, in ruling on Appellants’ weight claim, the trial court determined:


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      . . . [T]he jury heard expert testimony from both parties.
      [Appellants’] experts testified that [Appellees] deviated from the
      standard of care and [Appellees’] experts testified that
      [Appellees] did not deviate from the standard of care. Whether
      [Appellees] did in fact deviate from the standard of care was a
      question of fact for the jury to decide and the jury chose to
      believe [Appellees’] experts. . . . The evidence in this case was
      conflicting and the jury could have found for either party.

(Trial Ct. Op., at 5).

      Because there was conflicting evidence presented at trial, which was

presented properly to the fact-finder, we cannot conclude that the trial court

acted capriciously or palpably abused its discretion in denying Appellants’

weight claim. See Hatwood, supra at 1238; (see also, e.g., N.T. Trial,

5/19/15,    at   28      (Dr.   Michael   Chansky’s   testimony   that     Appellees’

administration of Phenergan did not deviate from standard of care); N.T.

Trial, 5/13/15, at 67 (Dr. David Brown’s testimony that Appellees’

administration of Phenergan was below standard of care)).                Accordingly,

Appellants’ final issue does not merit relief.

      Judgment affirmed.

      Judge Shogan joins the Memorandum.

      Judge Panella concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2017




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