J. A32042/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


MARGARET WILSON                             :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
PETER L. KING, D.P.M.,                      :
                                            :
                          Appellant         :     No. 1178 EDA 2014

               Appeal from the Judgment Entered March 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Civil Division No(s).: November Term, 2010 No. 3488

MARGARET WILSON,                            :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
PETER L. KING, D.P.M.,                      :
                                            :
                          Appellee          :     No. 1379 EDA 2014

               Appeal from the Judgment Entered March 27, 2014
              In the Court of Common Pleas of Philadelphia County
                   Civil Division No(s).: 03488 Nov. Term 2010

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

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 16, 2015

        Appellant/Cross-Appellee, Peter L. King, D.P.M. (“Dr. King”), appeals

from the judgment entered by the Philadelphia County Court of Common

Pleas following an order granting in part and denying in part his motion for


*
    Former Justice specially assigned to the Superior Court.
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post-trial relief following a jury verdict in favor of Appellee/Cross-Appellant,

Margaret Wilson (“Wilson”).      Dr. King alleges the trial court erred by

permitting Dr. Andrew Schneider, an oncologist, to testify as to the standard

of care for Dr. King, a podiatrist.   Dr. King maintains the court erred by

permitting two of Wilson’s experts to testify and holding that Wilson

introduced sufficient evidence of causation.     Wilson cross-appeals on the

basis that the court improperly reduced the jury’s verdict from $1.1 million

to $750,000. We affirm.

      We adopt the facts and procedural history set forth in the trial court’s

opinions. See Trial Ct. Op., 6/27/14, at 1-5; Trial Ct. Op., 6/12/14, at 1-3.1

Following the February 28, 2014 verdict, Dr. King filed a timely post-trial

motion requesting judgment notwithstanding the verdict, a new trial, or a

remittitur.   Before the court rendered its ruling on Dr. King’s post-trial

motion, it entered judgment on the verdict on March 26, 2014. On April 3,


1
  Although both parties requested that the trial transcript be part of the
certified record, the record transmitted to this Court did not include the
complete trial transcript. We have held that failure to include the trial
transcript in the certified record typically precludes appellate review. Floyd
v. Phila. Elec. Co., 632 A.2d 1314, 1315 (Pa. Super. 1993). More recently,
however, our Supreme Court held “that where the accuracy of a pertinent
document is undisputed, the Court could consider that document if it was in
the Reproduced Record, even though it was not in the record that had been
transmitted to the Court.” Pa.R.A.P. 1921 note (citing Commonwealth v.
Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In this case, because a copy
of the trial transcript is part of the reproduced record and neither party has
disputed its accuracy, we will resolve the parties’ claims on their merits.
See id.




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2014, the court entered the order granting in part and denying in part Dr.

King’s post-trial motion.   Dr. King timely appealed on April 8, 2014, and

Wilson timely cross-appealed on April 14, 2014. On May 6, 2014, the court

again entered judgment in favor of Wilson.2 Both parties filed timely court-

ordered Pa.R.A.P. 1925(b) statements. This Court sua sponte consolidated

the parties’ appeals.

      Dr. King raises the following issues on appeal:

         Did the trial court err in permitting Andrew Schneider,
         M.D. (“Dr. Schneider”), an oncologist, to testify as to the
         standard of care for Dr. King, a podiatrist, under the
         common law of Pennsylvania when Dr. Schneider testified
         that he did not treat foot ulcers, he never diagnosed
         cancer of the foot and the patients he sees have already
         been diagnosed with cancer or cancer was suspected, and
         when he has not shown an overlap between the standard
         of care for an oncologist and for a podiatrist concerning
         cancer of the foot?

         Did the trial court err in denying the motions of Dr. King
         for compulsory non-suit and for post-trial relief when
         Wilson’s experts, Dr. Schneider and [Jack Gorman, D.P.M.
         (“Dr. Gorman”)], failed to meet the requirements of
         Pennsylvania Rule of Evidence 705 by not indicating the
         basis for their conclusion that Dr. King had violated the
         standard of care required of a podiatrist in not timely
         diagnosing squamous cell carcinoma of the left foot?

         Did the trial court err in denying the motions of Dr. King
         for compulsory non-suit and for post-trial relief because
         Wilson produced insufficient evidence of causation where
         her experts, Dr. Schneider and [Dr. Gorman], failed to

2
  Thus, this Court’s appellate jurisdiction was perfected. See generally
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514
(Pa. Super. 1995) (en banc).




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            indicate a causal connection between any breach of the
            standard of care by Dr. King and any injury suffered by
            Wilson and failed to meet the requirements of
            Pennsylvania Rule of Evidence 705 by not setting forth
            sufficient evidence to support causation?

Dr. King’s Brief at 5-6.

          We summarize Dr. King’s arguments for all of his issues.3     Dr. King

claims that Dr. Schneider had no experience with podiatrists and the court

should not have permitted him to testify about the standard of care for

podiatrists.      He maintains that Dr. Gorman, a podiatrist, gave such

conclusory testimony that, in conjunction with Dr. Schneider’s flawed

testimony, a new trial was warranted. Dr. King asserts that Dr. Gorman and

Dr. Schneider’s testimony also failed to comply with Pa.R.E. 705, which

states that an expert “must state the facts or data on which the opinion is

based.” Pa.R.E. 705. We hold Dr. King has not established entitlement to

relief.




3
  Despite raising three issues, King makes five arguments, thus violating
Pa.R.A.P. 2119(a), which mandates that “argument shall be divided into as
many parts as there are questions to be argued.” See Pa.R.A.P. 2119(a).
We decline to quash. See PHH Mortg. Corp. v. Powell, 100 A.3d 611, 615
(Pa. Super. 2014) (refusing to quash appeal despite numerous violations of
appellate briefing rules); see also Commonwealth v. Briggs, 12 A.3d 291,
343 (Pa. 2011) (“The briefing requirements scrupulously delineated in our
appellate rules are not mere trifling matters of stylistic preference; rather,
they represent a studied determination by our Court and its rules committee
of the most efficacious manner by which appellate review may be conducted
so that a litigant’s right to judicial review as guaranteed by Article V, Section
9 of our Commonwealth’s Constitution may be properly exercised.”).




                                      -4-
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          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 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.




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Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)

(per curiam) (punctuation and citations omitted), aff’d, 106 A.2d 656 (Pa.

2014).

      With respect to an order resolving a motion for a new trial, the

standard of review is abuse of discretion.     Harman v. Borah, 756 A.2d

1116, 1122 (Pa. 2000). The analysis has two stages.

         First, the trial court must decide whether one or more
         mistakes occurred at trial. These mistakes might involve
         factual, legal, or discretionary matters. Second, if the trial
         court concludes that a mistake (or mistakes) occurred, it
         must determine whether the mistake was a sufficient basis
         for granting a new trial. The harmless error doctrine
         underlies every decision to grant or deny a new trial. A
         new trial is not warranted merely because some
         irregularity occurred during the trial or another trial judge
         would have ruled differently; the moving party must
         demonstrate to the trial court that he or she has suffered
         prejudice from the mistake.

Id. (citations omitted).   If the alleged mistake involved a discretionary

matter, then our standard of review is abuse of discretion; if the alleged

mistake involved an error of law, then our standard of review is de novo.

Id. at 1123 (citations omitted).

      “It is axiomatic that questions concerning the admission or exclusion

of evidence are within the sound discretion of the lower court and will be




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reversed on appeal only where a clear abuse of discretion exists.”

Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 838 (Pa. Super. 1985).4

         Before a court will order a new trial, it must conclude that
         the errors at trial led to an incorrect result. Unless there is
         a substantial reason therefor, a new trial should not be
         granted in a negligence case. In an appeal from a jury
         trial, where the moving party alleges reversible error he
         must show not only the existence of the error, but also
         that the jury was misled by this error to his detriment. It
         is only when improperly admitted evidence may have
         affected a verdict that a new trial will be the correct
         remedy.

Warren v. Mosites Const. Co., 385 A.2d 397, 401 (Pa. Super. 1978)

(citations omitted).

      We need not resolve whether having an oncologist testify as to the

standard of care for a podiatrist was error.     Assuming that the trial court

erred by permitting Dr. Schneider to testify, we ascertain whether Dr.

Schneider’s testimony misled the jury such that it led to an incorrect result

in this medical malpractice action. See id.; Harman, 756 A.2d at 1122. In

this case, Dr. Gorman, a podiatrist, testified that Dr. King “deviated from the

standard of care of a reasonable prudent podiatrist” by failing to timely

biopsy Wilson’s nonhealing ulcer to ascertain the existence of cancer. N.T.,

2/23/14, at 32, 34-35 (trial deposition). We add that Dr. Gorman arrived at

his opinion prior to reviewing Dr. Schneider’s expert report. Id. at 31; Ex. C

4
 We may rely on cases predating the adoption of the Pennsylvania Rules of
Evidence to the extent those cases do not contradict the rules.      See
Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).




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to King’s Motion in Limine to Preclude Wilson’s Expert, Dr. Gorman, from

Offering Expert Oncologic Testimony Regarding Causation and Damages

Against King, 6/11/13 (Report of Dr. Gorman, 12/21/10).5          Because a

podiatrist, Dr. Gorman, testified that Dr. King deviated from a podiatric

standard of care, and the basis for that opinion predated a review of Dr.

Schneider’s report, which corroborated Dr. Gorman’s initial report, we

cannot conclude Dr. Schneider’s testimony affected the verdict and led to an

incorrect result. See Warren, 385 A.2d at 401. Indeed, we observe that

Dr. King himself testified that a nonhealing ulcer is a symptom of the cancer

at issue and that a biopsy is the only method to diagnose that cancer. N.T.,

2/21/14, at 32-33.

     Regarding King’s second and third issues, we state the following as

background. “If an expert states an opinion the expert must state the facts

or data on which the opinion is based.” Pa.R.E. 705. “The disclosure can be

accomplished in several ways. One way is to ask the expert to assume the

truth of testimony the expert has heard or read. Another option is to pose a

hypothetical question to the expert.”   Pa.R.E. 706 cmt.   “But the required

disclosure can also be made by simply asking the expert to state the facts or

5
  We acknowledge that Dr. Gorman, after reviewing Dr. Schneider’s report,
prepared supplemental reports reiterating his initial findings. See, e.g.,
N.T., 2/23/14, at 31; Ex. C to King’s Motion in Limine to Preclude Wilson’s
Expert, Dr. Gorman, from Offering Expert Oncologic Testimony Regarding
Causation and Damages Against King, 6/11/13 (Report of Dr. Gorman,
1/7/13).




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data on which the opinion is based either before or after requesting the

opinion.”     Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence §

705-1 (4th ed. 2013).

      After careful consideration of the parties’ briefs, the certified record,

and the decision of the Honorable Leon Tucker, we affirm King’s second and

third issues based on the trial court’s decision. See Trial Ct. Op. at 17-18

(concluding that Drs. Schneider and Gorman identified photographs,

deposition testimony, other expert reports, and learned treatises they relied

on in arriving at their conclusions, which established causation); accord

Packel, supra.      Without exhaustively recounting the expert testimony, we

add that both doctors testified that the delay in diagnosing Wilson’s cancer

caused her foot amputation. See, e.g., N.T., 2/23/14, at 52; N.T., 2/20/14,

29, 60.     Accordingly, as there is a basis upon which the jury could have

rendered its verdict, we must affirm the denial of King’s motion for judgment

notwithstanding the verdict. See Braun, 24 A.3d at 891.

      Having resolved the issues in King’s appeal, we address Wilson’s

issues:

            Did the trial court err as a matter of law and abuse its
            discretion by granting judgment [notwithstanding the
            verdict], in favor of . . . King . . . as to past medical
            expenses, thereby eliminating the jury’s verdict on past
            medical expenses, where a review of the record clearly
            leads to the conclusion that the law and evidence requires
            a verdict on medical expenses in favor of [Wilson]?

            Did the trial court err as a matter of law and abuse its
            discretion by granting remittitur on the jury’s verdict of


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         $1.1 million, reducing the verdict to the pain and suffering
         award of $750,000.00 only and setting aside the jury’s
         award of $350,000.00 for past medical expenses, where
         there is no evidence that the jury’s award for past medical
         expenses was influenced by “caprice, prejudice, partiality,
         corruption or some other improper influence”, or that the
         jury’s award as to past medical expenses “so shocks the
         sense of justice as to suggest the jury was influenced by
         partiality, prejudice, mistake or corruption”?

Wilson’s Brief at 7.

      In support of her first issue, Wilson contends King was not entitled to

JNOV because she “is entitled to recover damages for past medical expenses

paid by Medicare for which she may be required to reimburse Medicare from

any verdict” in her favor. Id. at 18. She maintains that no two reasonable

minds could agree that the evidence was insufficient to establish the amount

of her past medical expenses. We hold Wilson is not entitled to relief.

      As noted above, the standard of review for an order resolving a motion

for JNOV is abuse of discretion or error of law. See Braun, 24 A.3d at 890.

Instantly, the trial court did not enter, in King’s favor, a judgment

notwithstanding the verdict. The court entered judgment in favor of Wilson

for $750,000.    J., 5/6/14, at 1.   Thus, this Court cannot reverse the trial

court’s order granting King’s motion for JNOV, as the trial court never ruled

in his favor. See generally Braun, 24 A.3d at 890.

      Lastly, Wilson argues that the court erred by granting remittitur and

eliminating the jury’s award of $350,000 for past medical expenses.       She

asserts that the jury’s award was not excessive or “guided by partiality,



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prejudice, mistake or corruption.” Wilson’s Brief at 18. Wilson claims that

she did not need to “provide the jury a specific number to award for past

medical expenses.”     Id. at 27.    Rather, she insists that she only had to

provide the jury “a reasonable amount of information sufficient to enable

[the jury] to estimate damages without engaging in speculation.”                 Id.

(quoting Detterline v. D’Ambrosio’s Dodge, Inc., 763 A.2d 935, 941 (Pa.

Super. 2000)). We discern no basis for granting relief to Wilson.

     Our Supreme Court has discussed remittitur as follows:

           Judicial reduction of a jury award is appropriate only
        when the award is plainly excessive and exorbitant. The
        question is whether the award of damages falls within the
        uncertain limits of fair and reasonable compensation or
        whether the verdict so shocks the sense of justice as to
        suggest that the jury was influenced by partiality,
        prejudice, mistake, or corruption.

        [T]he excessiveness of the verdict is peculiarly within the
        discretion of the trial court and will not be reversed unless
        an abuse of discretion or an error of law has been
        committed.

Haines v. Raven Arms, 640 A.2d 367, 369 (Pa. 1994); accord Zauflik v.

Pennsbury Sch. Dist., 104 A.3d 1096, 1129 (Pa. 2014).

     In Detterline, this Court examined whether the trial court erred in

denying the defendant’s motion for JNOV and remittitur.           Detterline, 763

A.2d at 936.   In Detterline, the decedent’s wife sued the defendant for

negligence stemming from a motor vehicle accident that resulted in her

husband’s death.     Id.    The jury awarded damages of $676,000, and the

defendant   moved     for   remittitur     because   the   jury   lacked   sufficient


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information to justify its award. Id. at 940-41. The Detterline Court held

the trial court did not abuse its discretion because the decedent’s wife

“testified   regarding    the   decedent’s     education,   employment   history,

relationship with his family, and salary of eight dollars per hour.”         Id.

(citation omitted).      Further, the trial court instructed the jury that the

decedent could have lived for “46.4 more years” and the amount did not

shock this Court’s conscience. Id. Thus, this Court discerned no abuse of

discretion. Id.

      The instant case is unlike Detterline in that Wilson did not introduce

any evidence substantiating the monetary amount of her past medical

expenses. We acknowledge that King’s medical expert testified that Wilson’s

past medical expenses were necessary. See N.T. 2/26/14, at 70. But no

testimony was elicited as to the amount, unlike the testimony of the

decedent’s wife in Detterline. See Detterline, 763 A.2d at 936. Given the

paucity of Wilson’s evidence, we discern no abuse of discretion by the trial

court for granting King’s request for remittitur.      See Haines, 640 A.2d at

369. Conversely, absent evidence, it is difficult to conclude that the amount

of the award at issue was fair and reasonable. See id. Accordingly, having

discerned no abuse of discretion or error of law, we affirm the judgment

below.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/16/2015




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