J-A29040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIA PALAR, AS EXECUTRIX OF THE          :      IN THE SUPERIOR COURT OF
ESTATE OF KATHERINE PALAR,                :            PENNSYLVANIA
DECEASED                                  :
                                          :
            v.                            :
                                          :
JOHN WOHLWEND, ARIS                       :
TELERADIOLOGY, KAMAL KHALAF AND           :
PUNXSUTAWNEY AREA HOSPITAL,               :
                                          :
APPEAL OF: JOHN WOHLWEND AND              :
ARIS TELERADIOLOGY                        :           No. 530 WDA 2016

              Appeal from the Judgment entered March 23, 2016
              in the Court of Common Pleas of Jefferson County,
                      Civil Division, No(s): 123-2014 CV

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 20, 2017

      John Wohlwend, M.D. (“Dr. Wohlwend”), and his employer, Aris

Teleradiology (“Aris”) (collectively, “Defendants”), appeal from the Judgment

entered on March 23, 2016,1 following a jury verdict in favor of Katherine

Palar (“Palar”), deceased.2 We affirm.




1
  Defendants purport to appeal from the March 11, 2016 Order denying
Defendants’ post-trial Motions. “However, an appeal properly lies from the
entry of judgment, not from the denial of post-trial motions.” Hall v.
Jackson, 788 A.2d 390, 395 n.1 (Pa. Super. 2001). Because Judgment was
entered on March 23, 2016, and Defendants filed a timely Notice of Appeal,
there is no jurisdictional impediment to our review.
2
  Palar died on April 22, 2016, shortly after filing the instant appeal. Maria
Palar, as executrix of the estate of Katherine Palar (“the Palar Estate”), was
thereafter substituted as Plaintiff.
J-A29040-16


      In 2009, Palar developed back pain.     Palar’s primary care physician

sent her to Punxsatawney Area Hospital (“Hospital”) for two MRIs of her

spine: one on March 9, 2009, and another on April 13, 2009. Kamal Khalaf,

M.D. (“Dr. Khalaf”), a radiologist at Hospital, obtained the MRI images, and

sent them to Aris for review. Dr. Wohlwend reviewed the MRIs for Aris, and

neither of his reports mentioned any lung abnormalities.

      In 2010, Palar developed a cough, and was sent to Hospital for a chest

x-ray.   Dr. Khalaf reviewed the x-ray and reported that he found no

significant pathology.

      After suffering from continued bouts of coughing, Palar was sent to

Hospital for another chest x-ray in 2012. Dr. Khalaf reviewed the x-ray and

reported that he found no significant pathology.

      In 2013, Palar received a chest x-ray for asthma. Dr. Khalaf reviewed

the x-ray, and found a mass on Palar’s right lung. Dr. Khalaf recommended

that Palar undergo a computed tomography (“CT”) scan.          The CT scan

revealed a 4.8 by 2.5 centimeter mass, which was subsequently identified as

cancerous.    Palar ultimately was diagnosed with unresectable Stage IIIA

non-small cell lung cancer, metastatic to the lymph nodes.             Palar

subsequently underwent 33 radiation treatments and multiple rounds of

chemotherapy.

      In January 2014, Palar filed a Complaint against Dr. Wohlwend, Aris,

Dr. Khalaf, and Hospital, asserting a medical malpractice theory of



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negligence.   Palar claimed that her lung cancer diagnosis was delayed by

four years because Dr. Wohlwend and Dr. Khalaf negligently failed to detect

the mass when they reviewed her various MRIs and chest x-rays.

      In November 2015, shortly before the start of trial, Palar began to

have breathing issues, balance problems, dizziness and difficulty with

memory. Palar’s primary care physician ordered a CT scan, which took place

on November 3, 2015. Palar’s counsel sent a copy of the report from the CT

scan to Defendants’ counsel the same day. On November 5, 2015, Palar’s

oncology   expert,   Ronald   H.   Blum,   M.D.   (“Dr.    Blum”),    submitted    a

supplemental expert report, indicating that the CT scan revealed that Palar’s

cancer had metastasized to her brain, and that she would almost certainly

die as a result of her cancer.3

      Prior to trial, Palar and Defendants filed several Motions in limine.

Relevantly, Palar filed a Motion in limine to preclude evidence that she was

contributorily or comparatively negligent by smoking; evidence of her history

of smoking; and evidence of her prior diagnosis of depression.              The trial

court granted Palar’s Motion.      Defendants also filed Motions in limine to

preclude   any   argument,    testimony    or   evidence    related    to   hearsay

statements (specifically regarding Palar’s conversations with her primary

care physician or any other treating physician about her condition), as well


3
  Palar also underwent an MRI on November 4, 2015, which revealed several
metastatic brain tumors. The MRI report was not available at the time of
trial, but was enclosed with Palar’s post-argument submissions.


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as any evidence related to Palar’s November 3, 2015 CT scan.           The trial

court granted Defendants’ Motion in limine to preclude evidence of hearsay

statements by any healthcare provider regarding Palar’s condition, but

denied Defendants’ Motion in limine to preclude evidence related to the

November 3, 2015 CT scan.       Defendants also filed a Motion to strike Dr.

Blum’s supplemental expert report, which the trial court denied. Dr. Khalaf

and Hospital also filed a Motion in limine to preclude evidence regarding the

November 3, 2013 CT scan, or, in the alternative, to continue the case to

allow more time to prepare for trial.     The trial court denied the Motion in

limine.

      On November 13, 2015, the jury returned a verdict in favor of Palar,

and allocated liability equally among Dr. Wohlwend and Dr. Khalaf.4         The

jury awarded Palar a total of $3 million—representing lump sums of $1.5

million for past economic loss, and $1.5 million for future noneconomic

loss—to be apportioned in accordance with the jury’s allocation of fault.

      Defendants     filed   post-trial    Motions,    requesting     judgment

notwithstanding the verdict, a new trial, a new trial on damages, or a

substantial remittitur of the verdict. The trial court denied the Motions in its




4
 Dr. Khalaf and Hospital settled with Palar prior to the jury verdict, and are
not parties to the instant appeal.



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Order dated March 11, 2016. On March 23, 2016, Judgment was entered

against Defendants in the amount of $1,546,808.88.5

     Defendants filed a timely Notice of Appeal, and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

     On appeal, Defendants raise the following questions for review:

     I. Whether the trial court erred and abused its discretion in
     failing   to  grant   Defendants’    [M]otion   for   [judgment
     notwithstanding the verdict] or a new trial in circumstances
     where [Dr. Khalaf] had a subsequent—and substantially better—
     opportunity to diagnose [Palar’s] cancer such that his conduct,
     and not that of Defendants, was the actual, superseding cause of
     [Palar’s] harm?

     II. Whether the trial court erred and abused its discretion in
     precluding evidence of [Palar’s] history of depression where
     [Palar] placed her mental health at issue in connection with her
     claim for non-economic damages?

     III. Whether the trial court erred and abused its discretion by
     precluding evidence and testimony regarding [Palar’s] smoking
     history in circumstances where this information was: (i) highly
     relevant to the issue of [Palar’s] life expectancy, health and
     physical condition prior to her injuries[,] and (ii) directly relevant
     to the quality of information that the respective Defendants
     possessed at the time they reviewed [Palar’s] MRIs and x-rays?

     IV. Whether the trial court erred and abused its discretion in
     denying Defendants’ request for a new trial in circumstances
     where the trial court improperly precluded Defendants from
     cross-examining their co-defendant, Dr. Khalaf, about [Palar’s]
     smoking history after Dr. Khalaf’s counsel asked Dr. Khalaf
     whether he had testified about “all” he knew about the [Palar’s]
     health condition and, hence, “opened the door” to testimony
     regarding the fact [that] Dr. Khalaf actually knew about [Palar’s]
     long smoking history when he reviewed her x-rays?

5
  The Judgment represents Defendants’ $1.5 million share of the total
verdict, based on the jury’s finding that Dr. Wohlwend was 50% negligent,
plus an additional $46,808.88 for delay damages.


                                  -5-
J-A29040-16



      V. Whether the trial court erred and abused its discretion in
      allowing [Palar] and her expert to present hearsay testimony
      regarding information that [Palar’s] treating physician (a non-
      witness in the case) purportedly conveyed to [Palar] regarding
      the alleged metastasis of the cancer to [her] brain, in
      circumstances where this eleventh-hour dramatic change in
      [Palar’s] health was material to [Palar’s] claims of causation[,]
      and caused Defendants severe prejudice?

Brief for Defendants at 5 (issues renumbered, emphasis in original).

      In their first claim, Defendants aver that they are entitled to judgment

notwithstanding the verdict because Palar failed to prove causation. Id. at

40.   Defendants argue that Dr. Khalaf’s failure to diagnose Palar’s cancer

was a superseding, intervening cause of Palar’s harm, which relieved

Defendants of liability. Id. at 41. Defendants claim that if Dr. Khalaf had

identified Palar’s cancer in her May 9, 2010 chest x-ray, when Palar’s cancer

was “at virtually the same stage it was when Dr. Wohlwend interpreted the

relevant imaging studies in 2009,” the tumor was still resectable, and Palar

would not have been required to receive chemotherapy. Id. at 41-42, 44.

Defendants also contend, in the alternative, that they are entitled to a new

trial because the jury should have been charged on the issue of superseding

causes. Id. at 45.

      “The entry of judgment notwithstanding a jury verdict to the contrary

is a drastic remedy.   A court cannot lightly ignore the findings of a duly

selected jury.” Neal v. Lu, 530 A.2d 103, 110 (Pa. Super. 1987).

      There are two bases upon which a court may enter a judgment
      n.o.v.: (1) the movant is entitled to judgment as a matter of


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J-A29040-16


     law, or (2) 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
     adversely 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.

                                   ***

     We have held that 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 court
     should only enter a judgment n.o.v. in a clear case and must
     resolve any doubts in favor of the verdict winner. A trial court’s
     grant or denial of a judgment n.o.v. will be disturbed only for an
     abuse of discretion or an error of law.        In examining this
     determination, [this Court’s] scope of review is plenary, as it is
     with any review of questions of law.

Bugosh v. Allen Refractories Co., 932 A.2d 901, 907-08 (Pa. Super.

2007) (citation and brackets omitted).

            To establish a prima facie case of medical malpractice, the
     plaintiff must prove that 1) the medical practitioner owed a duty
     to the plaintiff; 2) the practitioner breached that duty; 3) the
     breach was the proximate cause of, or a substantial factor in,
     bringing about the harm the plaintiff suffered; and 4) the
     damages suffered were the direct result of the harm. If the
     circumstances surrounding a claim of malpractice are beyond the
     knowledge of the average lay person, the plaintiff must present
     an expert to testify that the conduct of the practitioner deviated
     from good and acceptable medical standards, and that such
     deviation was a substantial factor in causing the harm suffered.

Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004) (citations

and quotation marks omitted).




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      Defendants’ claim challenges the causation element of Palar’s medical

malpractice case.    In a medical malpractice case, a plaintiff need not

establish that the medical practitioner’s negligence was the “but for” cause

of her injuries. See id. at 380. Rather, liability may be established “where

expert medical testimony is presented to the effect that [the practitioner’s]

conduct did, with a reasonable degree of medical certainty, increase the risk

that the harm sustained by plaintiff would occur.” Hamil v. Bashline, 392

A.2d 1280, 1289 (Pa. 1978); see also id. at 1286 (stating that “[o]nce a

plaintiff has introduced evidence that a defendant’s negligent act or omission

increased the risk of harm to a person in plaintiff’s position, and that the

harm was in fact sustained, it becomes a question for the jury as to whether

or not that increased risk was a substantial factor in producing the harm.”);

Carrozza, 866 A.2d at 380.

      Further,

      [o]nce a plaintiff has established facts from which a jury could
      reasonably conclude that defendant’s actions were a substantial
      factor in bringing about the harm, the fact that some other cause
      occurs with the negligence of the defendant in producing an
      injury does not relieve the defendant from liability unless he can
      show that such other cause would have produced the injury
      independently of his negligence.

Hamil, 392 A.2d at 1285 (citation, quotation marks and ellipses omitted).

“A superseding cause is defined as an act of a third person or other force

which, by its intervention, prevents the actor from being liable for harm to

another which his antecedent negligence is a substantial factor in bringing



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J-A29040-16


about.”    Hall, 788 A.2d at 399 (citation omitted).            Additionally, “a

super[s]eding cause must be an act which is so extraordinary as not to have

been reasonably foreseeable.” Krasevic v. Goodwill Indus. of Cent. Pa.,

Inc., 764 A.2d 561, 569 (Pa. Super. 2000) (citation omitted).

      At trial, Dr. Wohlwend testified that when he reviewed Palar’s 2009

MRIs, he was aware that Palar had a history of back and arm pain.            See

N.T., 11/12/15, at 45.    Dr. Wohlwend testified that although he looked at

the entire image “in a global sense,” he did not conduct a dedicated search

of the lungs. See id. at 67-68. Additionally, Dr. Wohlwend testified that he

did not comment on Palar’s lungs in his report because “this is what the

lungs look like” in a majority of thoracic spine MRIs, and that “[y]ou have to

take with a great skepticism something that you see in the lung MRI with

thoracic spine.” See id. at 59, 71. Dr. Wohlwend also attributed some of

the apparent abnormality in the lung to “artifact,” which are white striations

that appear on the image, and which may be caused by respiratory, cardiac,

or patient motion. See id. at 47-49, 51-53; see also id. at 54 (wherein Dr.

Wohlwend testified that, when a thoracic spine image presents significant

artifact in the lungs, “you have to be very careful calling lung pathology.”).

      Michael Racenstein, M.D. (“Dr. Racenstein”), Palar’s standard of care

expert, testified via video deposition that if any abnormality is detected on

an imaging study, the reviewing radiologist should report the abnormality to

the patient’s clinician, or, if it is unclear whether there is an abnormality, the



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J-A29040-16


radiologist should request additional imaging.    See Racenstein Deposition,

11/4/15, at 22-24; see also N.T., 11/10/15, at 5 (wherein the video

deposition was played for the jury during trial); N.T., 11/12/15, at 12

(wherein the deposition transcripts were admitted into evidence at trial).

Dr. Racenstein testified that in interpreting a thoracic spine MRI, a reviewing

radiologist should focus on the spine, but must view the entire dataset. See

Racenstein Deposition, 11/4/15, at 28-29. Dr. Racenstein reviewed images

of Palar’s 2009 MRIs, and testified that no artifact was present on the

images, but that the image reveals an irregular nodule on the posterior right

apex of the lung.   See id. at 36, 42, 49.    Dr. Racenstein opined that Dr.

Wohlwend’s conduct fell below the standard of care because he did not not

identify the lesion or recommend additional imaging studies. See id. at 43-

44, 51, 54, 65. Further, Dr. Racenstein opined that Dr. Khalaf also deviated

from the standard of care in interpreting Palar’s 2010 chest x-ray by not

identifying the abnormality or recommending additional imaging studies.

See id. at 55-56, 66.

      Dr. Blum testified that when Dr. Wohlwend reviewed Palar’s 2009

MRIs, Palar’s cancer would have been classified as Stage IA.        See N.T.,

11/10/15, at 50. Dr. Blum testified that, at that time, Palar would have had

an approximately 73% probability of five-year survival, and the tumor could

have been fully resected.    See id. at 51-52, 81.     Additionally, Dr. Blum

testified that in 2010, when Dr. Khalaf reviewed Palar’s first chest x-ray,



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Palar’s cancer would have been classified as Stage IB. See id. at 53. Dr.

Blum testified that, at that time, Palar would have had an approximately

58% probability of five-year survival, and that the treatment likely would

have been surgical resection, although chemotherapy may have also been

an option. See id. at 53-54, 56.

      In its Opinion, the trial court considered Dr. Blum’s testimony and

observed the following:

      [b]y the time [Palar] had her first x-ray in 2010, [the cancer]
      had advanced to stage IB, thereby reducing chances of survival
      by fifteen percent and introducing the possibility that
      chemotherapy and its attendant complications would accompany
      the surgical resection. By itself, … that testimony was sufficient
      to establish that Dr. Wohlwend’s negligence was a legal cause of
      [Palar’s] harm and that his culpability outlived Dr. Khalaf’s
      subsequent negligence.

Trial Court Opinion, 3/11/16, at 4 (citations to the record omitted).

      Upon review, we conclude that the evidence, viewed in the light most

favorable to Palar as the verdict winner, established that Dr. Wohlwend’s

conduct deviated from the standard of care and increased Palar’s risk of

harm. See Carrozza, 866 A.2d at 381. In fact, the jury specifically found

that the conduct of both Dr. Wohlwend and Dr. Khalaf was negligent, and




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that each doctor’s negligence was a factual cause of Palar’s harm.6         See

N.T., 11/13/15, at 83-84 (wherein the jury foreman read the jury’s verdict

slip on the record). Further, the jury’s equal allocation of liability between

Dr. Wohlwend and Dr. Khalaf necessarily indicates that Dr. Khalaf’s

negligence did not divest Dr. Wohlwend of liability. Discerning no abuse of

discretion or error of law by the trial court in denying Defendants’ request

for judgment notwithstanding the verdict on this issue, we will not disturb

the result. See Bugosh, 932 A.2d at 908. Accordingly, Defendants are not

entitled to relief on this claim.



6
  The jury received an instruction regarding how to consider multiple factual
causes of harm. The trial court’s final instructions included, in relevant part,
the following charge:

      To be a factual cause, the conduct must have been an actual real
      factor in causing the harm or if even the result is unusual or
      unexpected. A factual cause cannot be an imaginary or a
      fanciful factor having no connection or only an insignificant
      connection to the harm. To be a factual cause, the Defendants’
      conduct need not be the only factual cause. The fact that some
      other causes can occur with the negligence of the Defendant or
      Defendants in producing an injury does not relieve the
      Defendants from liability as long as his own negligence is a
      factual cause of the injury. … Sometimes a person’s negligent
      conduct combines with other people’s conduct to cause harm.
      When a defendant’s negligent conduct combines with the
      conduct of other persons, the [d]efendant is legally responsible if
      his negligent conduct was one of the factual causes of the harm.
      In such a case, that defendant is fully responsible for the harm
      suffered by the [p]laintiff regardless of the extent to which the
      [d]efendant’s conduct contributed to the harm.

N.T., 11/13/15, at 67-69 (paragraph break omitted).



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     Defendants’ remaining issues challenge the trial court’s denial of their

request for a new trial, on the basis that the trial court excluded relevant

evidence.7

     Our review of a ruling on a motion for a new trial is limited to
     determining whether the trial court abused its discretion or
     committed an error of law. We view the evidence in the light
     most favorable to the verdict-winner in making this
     determination, and we must consider whether a new trial would
     likely produce a different verdict. Consequently, if there is any
     support in the record for a trial court’s decision to deny the
     motion, we must affirm. … We will not reverse the trial court’s
     refusal to grant a new trial unless the court committed a clear
     abuse of discretion or an error in law which controlled the
     outcome of the case.

Carrozza, 866 A.2d at 382 (internal citations omitted). Additionally,

     if the basis of the request for a new trial is the trial court’s
     rulings on evidence, then such rulings must be shown to have
     been not only erroneous but also harmful to the complaining
     parties. Evidentiary rulings which did not affect the verdict will
     not provide a basis for disturbing the jury’s judgment.

Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 579, 586 (Pa. Super.

2002) (citation omitted).




7
  Under the Pennsylvania Rules of Evidence, “[e]vidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be
without the evidence[,] and (b) the fact is of consequence in determining the
action.” Pa.R.E. 401. “Irrelevant evidence is inadmissible, and relevant
evidence is admissible except as otherwise provided by law.” Brady v.
Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (citing Pa.R.E. 402). However,
“[t]he [trial] court may exclude relevant evidence if its probative value is
outweighed by a danger of … unfair prejudice….” Pa.R.E. 403. The term
“unfair prejudice,” as used in this rule, “means a tendency to suggest
decision on an improper basis or to divert the jury’s attention away from its
duty of weighing the evidence impartially.” Id., cmt.


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      “It is well-settled that a trial court’s rulings on evidentiary questions

are controlled by the sound discretion of the trial court, and the appellate

courts of this Commonwealth will not disturb those rulings unless a clear

abuse of discretion is shown.” Phillips v. Gerhart, 801 A.2d 568, 572 (Pa.

Super. 2002). “An abuse of discretion occurs where the trial court reaches a

conclusion that overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or is the result of partiality, prejudice,

bias, or ill will.”   Brady, 111 A.3d at 1161 (citation and quotation marks

omitted).

      In their second claim, Defendants argue that the trial court erred by

precluding evidence of Palar’s history of depression. Brief for Defendants at

38.   Defendants claim that Palar’s history of depression is relevant to her

claim of non-economic damages for anxiety, mental anguish and depression.

Id. at 38.    Defendants also assert that the evidence would not be unduly

prejudicial, and that by precluding Palar’s history of depression, the trial

court “provided the jury with a misleading and sanitized version of [Palar]

and her lifestyle….” Id. at 39.8




8
  We note that Defendants’ argument, which contains only a short discussion
of this issue, includes citations to the record, but lacks citation to relevant
legal authority. See Pa.R.A.P. 2119(a) (providing that the argument section
of an appellate brief must include “discussion and citation of authorities as
are deemed pertinent.”). Nevertheless, we will address Defendants’ second
claim on appeal.


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      At trial, Defendants argued that the following portion of Palar’s

testimony would allow Defendants to introduce evidence of her prior

depression:

      Q: Can you tell us how you feel about your condition now,
      emotionally?

      A: I’m trying to improve my attitude. Friday I was devastated,
      you know, working through it.

      ***

      Q: What [e]ffect has this cancer had on your life?

      A: I’m just disturbed over the whole situation. It’s devastating.
      I don’t know.

      Q: Do you have any worries?

      A: Yeah. Well, about me, I know what’s going to happen to me.
      I worry about my kids.

      Q: Thinking about them, how does that make you feel, your
      concerns?

      A: Devastating. It’s stressful.

N.T., 11/10/15, at 18. During a sidebar held on the record, the trial court

reviewed the testimony, determined that Palar was referring to her

emotional state at that time, and sustained the objection regarding evidence

of her prior diagnosis. See id. at 19-20.

      In its Opinion, the trial court considered Defendants’ claim, and set

forth the following reasons for denying Defendants’ request for a new trial:

      During her deposition, [] Palar confirmed that she had once been
      diagnosed with depression but had not undergone treatment for
      it. Many years had since elapsed, however, and there was no


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J-A29040-16


      evidence that it was ongoing or recurring. Its remoteness thus
      counselled for exclusion, as it would have been unduly
      prejudicial for the jury to have concluded from what little she
      revealed in her deposition that [] Palar’s emotional trauma
      stemmed from a distant bout with depression.

      [] Palar’s depression, moreover, was not Dr. Wohlwend’s only
      outlet for mitigating that impact of her … testimony regarding
      the emotional side effects of living with cancer. Rather, her
      other health issues were extensive and, by her own admission,
      debilitating, and Dr. Wohlwend effectively explored them during
      cross-examination, thereby giving the jury plenty of reason to
      conclude that her more recent emotional instability was not
      directly attributable to her lung cancer and, by extension, his
      negligence in failing to detect it.      It is incomprehensible,
      therefore, that the Court, in excluding evidence that [] Palar had
      been diagnosed with depression more than a decade earlier,
      encouraged an unwarranted verdict on damages.

Trial Court Opinion, 3/11/16, at 8-9.

      Viewing the evidence in the light most favorable to Palar as the verdict

winner, we cannot conclude (and, in fact, Defendants did not argue) that a

new trial would result in a different verdict, or that Defendants were harmed

by the exclusion of this evidence.      See Carrozza, 866 A.2d at 382; see

also Yacoub, 805 A.2d at 586.       Discerning no abuse of discretion by the

trial court in excluding evidence of Palar’s prior diagnosis of depression, we

will not disturb the trial court’s determination.       See Phillips, supra.

Accordingly, Defendants are not entitled to relief on this claim.

      We will consider Defendants’ third and fourth claims together, as each

contains arguments regarding Palar’s smoking history. In their third claim,

Defendants argue that the trial court erred by precluding all evidence of

Palar’s history of smoking. Brief for Defendants at 19. Defendants assert


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that such evidence is directly relevant to Palar’s pre-injury health and

physical condition, as well as her life expectancy.9             Id. at 19, 20.

Defendants claim that because Palar asserted that her life expectancy was

reduced by Dr. Wohlwend’s negligence, as a matter of fairness, evidence of

Palar’s history of smoking must also be presented, as smoking may increase

the risk of mortality. Id. at 20. Defendants also assert that such evidence

is relevant because “the jury was specifically instructed to consider Palar’s

health and physical condition before the injuries in fashioning its award of

non-economic    damages,     and    returned   an   award   of   $3,000,000   to

compensate her for her non-economic harm.”          Id. at 22-23.    Defendants

contend that, “[h]ad the jury been permitted to consider [Palar’s] smoking

history, it undoubtedly would have returned an award in a much lower

amount.” Id. at 23. Additionally, Defendants claim that the admission of

Palar’s smoking history would not be unfairly prejudicial to Palar, and that

the potential prejudicial effect could be mitigated with an appropriate jury

instruction. Id. at 25-26.

     In their fourth claim, Defendants assert that Dr. Khalaf had the benefit

of viewing the requisition forms, and that he was therefore familiar with

Palar’s history of smoking prior to reviewing her chest x-ray.        Id. at 30.

Defendants argue that Palar’s history of smoking is also relevant to the


9
  Palar’s counsel withdrew the request for a life expectancy instruction and
accompanying actuarial tables prior to trial. See N.T., 11/9/15, at 20, 22-
23


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jury’s assessment of fault between Dr. Wohlwend and Dr. Khalaf because

the requisition forms Dr. Khalaf received in connection with his review of the

2010, 2012 and 2013 chest x-rays noted Palar’s history of smoking. Id. at

23. Defendants contend that the exclusion of such evidence was prejudicial

to Defendants, because they “would have used the [r]equisitions to

demonstrate either that Dr. Khalaf had all the information necessary to

arrive at the conclusion that [Palar] suffered from lung cancer in 2010, … or

that [Hospital] was negligent by failing to provide [Dr.] Khalaf with [Palar’s]

complete medical history.”    Id. at 24.   Defendants point to the following

portion of Dr. Khalaf’s testimony to argue that he “opened the door” to

cross-examination regarding Palar’s history of smoking:

      Q: And the reason for this chest x-ray in July of 2012 was cough
      or congestion; is that correct?

      A: Yes.

      Q: So that’s all you knew about [] Palar?

      A: Yes.

N.T., 11/12/15, at 105; see also Brief for Defendants at 29-30. Defendants

argue that Dr. Khalaf’s affirmation that “all he knew about Palar” was that

she had a cough and congestion “gave the jury a false impression about

what he actually knew.” Brief for Defendants at 29-30.

      Defendants’ argument regarding the relevance of the requisition forms

to the allocation of liability between Dr. Wohlwend and Dr. Khalaf suggests

that the two doctors should have been held to a different standard of care


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J-A29040-16


based on their relative knowledge. However, no evidence was presented at

trial to support such a position.    See Freed v. Geisinger Med. Ctr., 971

A.2d 1202, 1206 (Pa. 2009) (stating that “[e]xpert testimony generally is

required in a medical malpractice action in order to establish the proper

standard of care”). Moreover, there is no evidence that Dr. Khalaf read and

reviewed the requisition forms prior to interpreting Palar’s chest x-ray. Even

if expert testimony had established that the two doctors should be evaluated

under differing standards of care, without additional evidence that Dr. Khalaf

reviewed the requisition forms prior to interpreting Palar’s chest x-ray, we

cannot say that the verdict would necessarily have been different if the

requisition forms had been admitted at trial. See Yacoub, 805 A.2d at 586

(stating that “[e]videntiary rulings which did not affect the verdict will not

provide a basis for disturbing the jury’s judgment.”).

      In its Opinion, the trial court considered Defendants’ third and fourth

issues, and stated the following:

      One can always speculate, of course: Maybe Dr. Wohlwend
      would have been more alert to the images of the lungs had he
      known [] Palar smoked[,] or maybe the jury would have found
      him to be less negligent than Dr. Khalaf had it known that the
      2010 and 2012 requisition forms reflected her decades-long
      habit. Yet such speculative “maybes” do not outweigh the very
      real possibility that the jury, had it learned about [] Palar’s
      smoking, would have focused on the degree to which she was to
      blame for developing cancer instead of whether Dr. Wohlwend
      should have noticed the cancerous lesion in her lung while
      resection was the only treatment that would have been
      necessary to guarantee her a seventy-three percent chance of
      survival. Any limited probative value the evidence may have



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J-A29040-16


          had, therefore, was far outweighed by its potential to unduly
          prejudice [] Palar.

Trial Court Opinion, 3/11/16, at 2 (footnote omitted); see also id. at 5

(stating that “it is most probable that any reduction stemming from evidence

of   []    Palar’s   smoking   would    have    been   a   reflection   of   the   jury’s

determination that someone who smoked somehow deserved[,] and should

not be compensated for[,] the miseries associated with lung cancer.                 That

result cannot be sanctioned.”). Moreover, the trial court found that

          [i]t is highly unlikely … that the jury would have reached a
          different conclusion on the question of liability had its members
          known that Dr. Khalaf had access to the information that [] Palar
          presented as a forty-year smoker. They retired to the jury room
          knowing that the x-ray was better adapted to detecting lung
          abnormalities than was the MRI, that Dr. Khalaf was specifically
          looking for a lung issue based on [] Palar’s reports of a cough
          and congestion, and that Dr. Wohlwend was specifically tasked
          with looking for potential causes of back pain. They also knew
          that she still had a fifty-eight percent chance of survival with
          surgical resection alone had Dr. Khalaf detected the opacity in
          2010[,] and was still a candidate for resection following
          chemotherapy and radiation treatments after the 2012 x-ray.
          They were well aware, therefore, that the statistical probability
          that [] Palar would survive her lung cancer declined precipitously
          between 2010 and 2013 compared to its fifteen percent
          reduction between 2009 and 2010. It is fanciful, then, to posit
          that the jury’s ultimate allocation of fault would have changed
          had it also known that Dr. Khalaf, but not Dr. Wohlwend, had
          access to the information that [] Palar was a smoker. The
          remote chance that it would have, moreover, was again
          outweighed by the risk of undue prejudice to the plaintiff.

Id. at 4-5.

          Upon review, we agree with the trial court’s determination that the

potential prejudice that would result from admitting evidence of Palar’s



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J-A29040-16


smoking history significantly outweighs the limited probative value of such

evidence, where the relevant issue at trial was whether Dr. Wohlwend and

Dr. Khalaf were negligent in failing to diagnose Palar’s cancer. Discerning no

abuse of discretion, we decline to reverse the trial court’s decision to

preclude evidence of Palar’s smoking history and the requisition forms. See

Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super. 2014) (stating that “[t]he

function of the trial court is to balance the alleged prejudicial effect of the

evidence against its probative value[,] and it is not for an appellate court to

usurp that function.”) (citation omitted); see also Carrozza, 866 A.2d at

382. Therefore, Defendants are not entitled to relief on this claim.

      In their fifth claim, Defendants contend that the trial court erred by

permitting the introduction of hearsay evidence regarding the metastasis of

Palar’s cancer to her brain. Brief for Defendants at 32. Defendants claim

that the trial court improperly allowed Palar to testify, over Defendants’

objection and without prior notice, that her treating physician told her that

her November 3, 2015 CT scan showed multiple tumors on her brain. Id. at

32-33. Specifically, Defendants objected to the following portion of Palar’s

testimony:

      Q: Okay. Now, [] Palar, what is your understanding of your
      medical situation right now?

      A: I have (crying) three large tumors on my brain with a lot of
      little ones. One is the size of a lemon, and the prognosis is grim.

      Q: When did you find out all [of] that information?



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J-A29040-16


     A: Friday.

N.T., 11/10/15, at 15; see also Brief for Defendants at 33.     Additionally,

Defendants challenge the following portion of Dr. Blum’s testimony:

     [Palar’s Counsel]: Now, on November 3rd, just last Tuesday,
     [Palar] had a CT scan of her brain performed in DuBois because
     she had been having headaches, blurred vision, and feeling out
     of it. And a tumor was discovered in her brain. After that, on
     Friday—we don’t even have the report, but we heard her
     testimony. Her understanding is she had an MRI that showed
     multiple metastasis in her brain, and she started radiation
     therapy yesterday in Johnstown.

     [Defendants’ Counsel]: I have to object.

     The Court: Let’s have a sidebar.

     [Defendants’ Counsel]: The basis for the objection is reference
     to the MRI. We’ve never seen, even as sitting here, a report of
     the MRI.

     [Palar’s Counsel]: Neither have I. She testified to what it shows.

     ***

     [Defendants’ Counsel]: The CT scan demonstrates one lesion,
     I’m being told, and demonstrates three lesions. She’s saying
     it’s one hundred [percent] metastasized. I have no way to
     appropriately cross-examine that witness without that way [sic].

     ***

     [The trial court overruled Defendants’ objection, and Palar’s
     Counsel continued to question Dr. Blum.]

     [Palar’s Counsel]: Assuming the facts I told you are true, can
     you tell us what’s going on now with [] Palar?

     [Dr. Blum]: It’s clear to me recurrence of her lung cancer with
     metastasis to the brain. The basis of this opinion is the CT scan
     report. First of all, the actual history.



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J-A29040-16


N.T., 11/10/16, at 59-60, 63-64 (paragraph break omitted); see also Brief

for Defendants at 33-34.    Defendants assert that they were prejudiced by

the introduction of this “eleventh hour” evidence, and were subject to a “trial

by ambush,” because they were not given an adequate opportunity to have

their experts examine the CT scan prior to trial. Brief for Defendants at 34-

35, 38.     Defendants also argue that, contrary to the trial court’s

determination that any prejudice resulting from the hearsay testimony was

eliminated by Dr. Blum’s “follow-up,” Dr. Blum’s “double hearsay testimony”

exacerbated the prejudice to the Defendants.         Id. at 35.     Moreover,

Defendants aver that the trial court’s reasons for denying Defendants’

request for a continuance were insufficient; that the disclosure of the CT

scan two weeks before trial afforded Defendants sufficient time to review it

with their expert; that Dr. Wohlwend could have secured his own expert’s

cooperation; that the trial court’s schedule would not permit rescheduling for

several months; and that Palar was in a dire medical state.10 Id. at 36-37.

      Under the Pennsylvania Rules of Evidence, “hearsay” is defined as “a

statement that the declarant does not make while testifying at the current

trial or hearing[,] and a party offers in evidence to prove the truth of the

10
  We note that Defendants did not file a Motion for continuance in this case.
Rather, Defendants filed a Motion in limine to preclude evidence regarding
the November 3, 2015 CT scan report, which did not include an alternative
request for a continuance. Nevertheless, we will consider Defendants’ claim
regarding the late admission of the CT scan report, as it was preserved in
their Motion in limine. See Blumer v. Ford Motor Co., 20 A.3d 1222, 1232
(Pa. Super. 2011) (stating that “a motion in limine may preserve an
objection for appeal without any need to renew the objection at trial”).


                                 - 23 -
J-A29040-16


matter asserted in the statement.” Pa.R.E. 801. “Hearsay is not admissible

except as provided by [the Pennsylvania Rules of Evidence], by other rules

prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.

Additionally, hearsay within hearsay, which Defendants refer to as “double

hearsay,” “is not excluded by the rule against hearsay if each part of the

combined statements conforms with an exception to the rule.” Pa.R.E. 805.

        Here, Dr. Blum’s testimony regarding Palar’s condition at the time of

trial was limited to his review of the CT scan report and the history of the

case.    See N.T., 11/10/15, at 64; see also id. at 65 (wherein Dr. Blum

testified that without an additional MRI, and only a CT scan, he would have

the same opinion because “[i]t’s the right clinical setting[,] and “the timing

is right.”). Dr. Blum testified that Palar was suffering from lung cancer with

metastasis to the brain, and characterized the disease as “unrecoverable.”

See id. at 64-66.     Because Dr. Blum did not repeat Palar’s statements or

rely on her testimony in formulating his expert opinion, the challenged

portion of Dr. Blum’s testimony does not constitute inadmissible hearsay

within hearsay.

        The trial court acknowledged that Palar’s testimony related what she

had been told by medical personnel. See Trial Court Opinion, 3/11/15, at 6.

However, the admission of Palar’s testimony was harmless error, as her

testimony was supported by, and substantially similar to, the testimony

presented by Dr. Blum.     See Commonwealth v. Chmiel, 889 A.2d 501,



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J-A29040-16


521 (Pa. 2005) (stating that “an erroneous ruling by a trial court on an

evidentiary issue does not require us to grant relief where the error was

harmless.”); see also id. (stating that “harmless error exists where … the

erroneously admitted evidence was merely cumulative of other untainted

evidence which was substantially similar to the erroneously admitted

evidence”) (citation omitted).

      Regarding Defendants’ argument that they were subject to a “trial by

ambush” as a result of the late admission of evidence regarding the

November 3, 2015 CT scan, the trial court concluded that Defendants did not

suffer prejudice because Defendants learned about the scan nine days

before the start of their case-in-chief; “there is no indication that

[Defendants] even tried to prepare a rebuttal;” and, as a radiologist

opposing a plaintiff with advanced stage, non-resectable lung cancer, Dr.

Wohlwend “should have appreciated the potential ramifications.” See Trial

Court Opinion, 3/11/15, at 7-8. The trial court noted that, had it granted a

continuance, the trial could not have been rescheduled for several months,

and whether “Palar would live that long was far from certain.”    Id. at 7.

Additionally, during a sidebar discussion held on the record (during which

the trial court overruled Defendants’ objection to Dr. Blum’s testimony, and

allowed Dr. Blum to testify based on a hypothetical), see N.T., 11/10/15, at

60-61, 64, the trial court stated that “as long as [Palar is] alive … we’re




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J-A29040-16


always going to have this because she’s under continuing treatment. … And,

in essence, we can never try a case if I don’t let this occur.” Id. at 60.

      Upon review, we agree with the trial court’s determination that the

circumstances   of this case     necessitated the    admission of testimony

regarding the November 3, 2015 CT scan.           Additionally, we agree that

Defendants’ claim of prejudice is without merit, as “there is no indication

that [they] even tried to prepare a rebuttal.”       See Trial Court Opinion,

3/11/15, at 7. Viewing the evidence in the light most favorable to Palar, as

verdict winner, we cannot conclude that a new trial would result in a

different verdict (particularly where a new trial would reveal that Palar died

as a result of her cancer), or that Defendants were prejudiced by the

admission of evidence regarding the November 3, 2015 CT scan.                See

Carrozza, 866 A.2d at 382; see also Yacoub, 805 A.2d at 586. Discerning

no abuse of discretion by the trial court in admitting this evidence, we will

not disturb the trial court’s determination on appeal. See Phillips, supra.

Accordingly, Defendants are not entitled to relief on this claim.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2017




                                  - 26 -
