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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STACEY CARLITZ, EXECUTRIX OF THE                        IN THE SUPERIOR COURT OF
ESTATE OF JACQUELINE D. CARLITZ,                              PENNSYLVANIA
DECEASED AND ALAN S. CARLITZ

                      v.

DELTA MEDIX, P.C. AND JEFFREY W.
GUSE

APPEAL OF: JEFFREY W. GUSE                                  No. 1370 MDA 2015


                  Appeal from the Order Entered July 15, 2015
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 11 -CV -1458


BEFORE:     FORD ELLIOTT, P.J.E., BENDER, P.J.E. and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 04, 2017

        I disagree with two of the Majority's conclusions in this matter: 1) that

Dr.    Henzes'   First Report   did   not       mention,   or    otherwise suggest,   a

'spontaneous fracture' theory; and 2) that "it should have been obvious to

the defendants that they were to avoid any mention of the spontaneous

fracture theory from Dr. Henzes' Second Report." Majority Memorandum at

39.     Because I believe these conclusions were crucial to the Majority's

decision to affirm the order granting       a   new trial to the plaintiffs, based upon

the defendants' purported violations of the Court Order granting the motion

in limine, I respectfully dissent.

        The consequence of the Court Order was the preclusion any new

theories not contained in the First Report. This much is not in dispute. With

little analysis, however, the Majority concludes that "the spontaneous

*Former Justice specially assigned to the Superior Court.
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fracture theory of causation was absent from the First Report." Id. at 37-

38.    To the contrary, I believe the First Report alluded to, or was at least

ambiguous, regarding          a   spontaneous fracture causation theory. To be clear,

the two causation theories in question are that: 1) Mrs. Carlitz fell after

losing her balance while pivoting on her ankle, and she subsequently broke

her ankle during the fall (non -spontaneous fracture theory); and 2) Mrs.

Carlitz's ankle broke when she pivoted on it, causing her to fall (spontaneous

fracture theory).

        The    Majority concedes that          the      First   Report "referred   to   the

mechanism of Mrs. Carlitz's injury as being due to the osteoporotic state of

her bones."      Id. at   38. The Majority goes on to state that the First Report

only described the non -spontaneous fracture theory, and that              a   spontaneous

fracture theory was       a   "completely new theory of causation." Id. (emphasis

added).        However, if the mechanism of Mrs. Carlitz's injury was the

osteoporotic state of her bones, how                    is   that not congruent with      a

spontaneous fracture theory?              Does it not, in fact, implicitly suggest       a

spontaneous fracture theory? Is there             a   fundamental difference between the

"cause" and "mechanism" of injury in this case? Is it merely the difference

between    a   general and specific cause?' The Majority does not answer these

critical questions.


1
  To illustrate this difference, a doctor might describe the mechanism of
injury resulting from a fall as 'blunt force trauma.' Such a fall could result
(Footnote Continued Next Page)


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        In my view, the First Report describes             a   general cause    - that    the

osteoporotic state        of    Mrs.   Carlitz's   ankle   caused    it   to   fracture    in

circumstances when        a    healthy bone would not. That Dr. Henzes only went

on to describe the non -spontaneous fracture theory does not mean that his

description of the mechanism of her injury did not also encompass                          a

spontaneous fracture theory.           Dr. Henzes was not an eyewitness to Mrs.

Carlitz's injury.      He could not know the specific cause of it, he could only

speak to the general mechanism of that injury, and any suggestion of

specific causes were, therefore, merely hypotheticals.              Accordingly, I reject

the Majority's conclusion that the First Report did not, at least to some

degree, suggest     a   spontaneous fracture theory, because it appears to me to

be inherently encompassed within Dr. Henzes' description of the mechanism

of injury.

        Second, I do not believe the trial court effectively or sufficiently

conveyed to the defendants that the spontaneous fracture theory was

specifically precluded by the court's granting of the plaintiffs' motion in

limine. As the Majority acknowledges, at the time the trial court issued the
(Footnote Continued)

from an accident, foul play, or suicide. If our doctor's first expert report
suggested either an accident or foul play as examples of potential specific
causes of the blunt force trauma he observed, but he fails to suggest suicide
in that report, would his mention of suicide in a subsequent report be a
completely new causation theory? I think not, because the difference is not a
difference in kind (all are subsumed in the general cause, blunt force
trauma).



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Court Order, "it appears that the trial court was more concerned with the

untimeliness of the Second Report[,]" than with whether the defendants

could raise the spontaneous fracture theory through Dr. Henzes' testimony.

Majority Memorandum at 37. Indeed, while the trial court clearly ruled that

the defendants could not reference the language contained in the Second

Report, it provided virtually no guidance of the practical ramifications of that

decision, such as whether the spontaneous fracture theory was actually

contained within the four corners of First Report.               The court's omission

and/or     oversight        in   this   regard    occurred     despite   the   specific,

contemporaneous arguments by the parties regarding that issue at the time

the motion in limine was litigated.              The trial court did agree with the

plaintiffs that   if the   Second Report presented    a   new theory of causation, that

new theory would also be precluded under the Court Order.                However, it is

obvious from the trial court's accompanying statement that the trial court

had not determined whether the Second Report had, in fact, presented a

new theory of causation. Instead, the trial court stated:

        They have their theory as to what Dr. Henzes' initial report
        means and you have yours. And if, in fact, his supplemental
        report is a clarification, then it's not adding anything new, go
        with the original report. So, the motion in limine on April 21st is
        granted. Okay? I don't necessarily think it has anything to do
        with it. I don't necessarily think the jury is going to conclude
        what you guys conclude. But nevertheless, I thought we needed
        to address it because it was outstanding.

N.T., 4/27/15, at 33-34.




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        Clearly, the trial   court did    not    advise the   defendants that    a

spontaneous fracture theory was precluded, or relatedly decide whether the

Second Report was merely an elaboration on the theory presented in the

First Report.    Yet, the court was clearly aware of that dispute between the

parties, and the trial court's language, quoted supra, even suggests to me

the court's inexplicable intention to leave the matter for the jury to resolve,

an impression ultimately justified by the court's later discussion of the issue.

        When the trial court addressed the plaintiffs' objection to defendant

Guse's counsel's opening statement, the first of the purported violations of

the Court Order, the court again appears to have sidestepped the essence of

the matter. In response to the objection, the court stated:

        Well, I'm going to deny the motion for two reasons. I have
        already told the jury what the lawyers say cannot be equated as
        evidence, so your argument isn't evidence, and [] I told the jury
        that they can't decide the case based upon anything I say or
        what the lawyers say, but they are to decide it based on the
        evidence.    I would make certain that you handle that very
        carefully, however, when you bring in Dr. Henzes.
N.T., 4/28/15, at 60.

        Thus, the trial court yet again failed to resolve the dispute at its

second opportunity to do so. Indeed, the court's continued ambiguity could

be reasonably interpreted, given its prior      statement on the matter, as having

suggested to the defendants that the spontaneous fracture theory was still

potentially admissible if they demonstrated to the jury that it emanated from

the First Report.



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        Given the record as it stood when the plaintiffs objected to Guse's

counsel's opening statement, I simply cannot conclude that Guse's counsel

violated the Court Order at that time. Indeed, by first suggesting that it was

a   matter for the jury, and then by failing to explicitly instruct the defendants

that the spontaneous fracture theory was excluded                     in response to   this

objection, the trial court essentially invited the defendants to continue to

press the issue.

        The trial court also determined that the Court Order was violated by

the defense during the direct examination of Dr. Henzes. Immediately prior

to Dr. Henzes' testimony, Guse's counsel asked the trial court to clarify what

Dr. Henzes was permitted to say in light of the court's precluding the

admission of the Second Report. N.T., 4/29/15, at 48. The court responded

that Dr. Henzes could testify as to whatever was within the "fair scope of his

first report[,]" and then asked, "[w]hy          is    that   a   problem?"   Id.   Counsel

responded: "I don't think it's   a   problem, I think it's clear what he said, but I

think [Plaintiff's counsel], you know, has said that it's something different."

Id.
        Clearly, Guse's counsel was indicating to the court that it had not been

specific enough in its prior ruling regarding whether the Second Report

actually contained   a   wholly separate theory of causation not present in the

First Report.      The court responded:           "Let me be more specific, the

phraseology that he used in describing                ...   how this wound might have

occurred has to be that phraseology from his [first] report and not his

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second report."   Id. at   49.     This was only marginally more specific than the

prior instructions by the court, and still did not resolve the lingering

question.

        Subsequently, during direct examination, Dr. Henzes was asked:

"[C]an you please tell the jury what your opinion                is as to   the causation

issues in this matter?"          Id. at      58.      Dr. Henzes responded, "That her

osteoporosis led her to having          a   low level trauma causing her to break her

ankle."     Id. at 58-59.          No       objection was made to this testimony.

Subsequently, Dr. Henzes was asked, "And what's your understanding as to

the interaction between Mr. Guse and Jacqueline Carlitz and Alan Carlitz

once they arrived at Delta Medix?"           Id. at   60. Dr. Henzes then stated:

        Well, Mr. Guse was the ultrasound tech.       [Ms. Carlitz] was
        brought to Delta Medix. And she was brought in a van. She was
        in a wheelchair.   And the wheelchair, Mr. Carlitz, I believe,
        pushed the wheelchair into the building. And Mr. Guse took over
        and took her right into the exam room. He asked her if she
        could get out of the wheelchair to get up on the exam table.
        She said she could. She was able to get herself out of the chair.
        With the help of Mr. Guse and Mr. Carlitz, she got up on to the
        step that she needed to get onto to get onto the exam table.
        And then, as she was pivoting herself around, she either-one of
        two things either happened. Either she lost her balance and fell
        and broke her ankle.       Or as she was pivoting, the pivot
        maneuver would have broken her ankle and then she would
        have collapsed and fallen onto the floor.
Id. At this point, the plaintiffs'      counsel objected.

        A discussion was then held at sidebar, where the              plaintiffs' counsel

complained that Dr. Henzes' report did not mention the pivoting as the

cause of the broken ankle (the spontaneous fracture theory).                   Id. at   61.


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Guse's counsel     responded       that the report did mention pivoting.               Id.
However, although the plaintiffs' counsel agreed that the first report

indicated that Ms. Carlitz had pivoted on her ankle, he argued the report had

stated that she had "[p]ivot[ed] and attempt[ed] to do it, but [the first

report did not] list that as the cause. And he's talking about causation here.

The cause that it states here [in the first report] is that she lost her balance

and   fell." Id.
        A protracted discussion ensued, during which the court appeared to

carefully consider, for the first time, whether Dr. Henzes' initial report

actually referenced the spontaneous fracture theory, or whether it only

suggested that osteoporosis had contributed to Ms. Carlitz's injury after she

lost her balance and fell, the non -spontaneous fracture theory.              Id. at 61-
71.    In the middle of that discussion, the court stated: "Now, let's assume

for purposes of discussion that I were to favorably entertain [the plaintiffs'

argument that Dr. Henzes'         in -court   statement went outside the scope of the

first report], the horse   is   out of the barn, how do I correct it?"     Id. at   65. In

response to this, the plaintiffs' counsel indicated that        a   mistrial was the only

possible    remedy, as they         had       not obtained an   expert to rebut the

spontaneous fracture theory.           Id. at 66-67.      Alternatively, the plaintiffs'

counsel argued that the court needed to "strike that testimony from the

record and tell the jury that there's no evidentiary basis for what the doctor

just said[.]" Id. at 67.


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        More discussion ensued, with the trial court ultimately concluding that

it would deny the motion for        a   mistrial, read portions of the first report to

the jury, "and do   a   curative [instruction] and say, there was no alternative

theory." Id. at 71. I believe this was the first indication that the trial court

expressed any intent to exclude the spontaneous fracture theory under the

Court Order.

        However, the court's subsequent actions immediately contradicted

what initially appeared to be   a   decision to preclude the spontaneous fracture

theory.     First, the court did not order the objected -to testimony of Dr.

Henzes to be stricken from the record as the plaintiffs' counsel requested.

Second, the instruction given appeared to have reinforced the notion that

the spontaneous fracture theory was          a   factual matter for the jury to decide

(and not, therefore, specifically precluded by the Court Order). For instance,

the court instructed the jury as follows:

        Ladies and Gentleman of the jury, I want to talk to you a little
        about the objection and sidebar we just had. In the report that
        is authored by Dr. Henzes dated August 19th, 2014 --and I'll let
        you know what I'm reading from, doctor, so you can read along
        with me. On Page 2, second paragraph where it starts, "The
        mechanism of," do you see where I'm talking about? "The
        mechanism of the patient's injury."


        Okay, now, there's an issue as to whether we're talking about
        causation. In other words, the dispute being, did she fall and
        the leg broke ... so the fall would have been the cause of it? And
        the mechanism was --I'm going to read to you what he says in
        the report, okay? And then, I'm going to talk to you a little bit
        about how it works. Because when you get a verdict slip in this
        case, the first question is going to be; "Do you find that the

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        defendant was negligent or did you find that the defendant
        violated the standard of care?" That's why they're talking about
        the standard of care here. A violation of the standard of care is
        negligence in Pennsylvania. And then, the next one would be,
        "Did the violation cause the injury?" Okay, was the person
        harmed, is their factual cause of harm from that violation of
        standard of care? And I think one of the lawyers made reference
        to it in the opening. You can run a red light and not hit anything
        and nobody hits you and you were negligent but you got away
        with it because there was no damage, no harm, okay? Well, in
        this particular case, the alternative theories that the doctor just
        talked about don't necessarily reflect the wording in his report.
        So I want to read to you the specific wording in Dr. Henzes'
        report and kind of we're going to hold him to that, okay? And
        this was what the report says.


        But here's what I want you to understand. The report says, "The
        mechanism of the patient's injury would be due to the
        osteoporotic state of her bones." Now, you have to determine
        what that means, okay? It might mean, if you fell, you wouldn't
        have broken your bones because you're not an osteoporotic. But
        that's what he says. Then, it says, "The pivoting that she was
        attempting to do would be very similar to what she would do
        each day getting in and out of bed and into her wheelchair to
        participate in the activities at the nursing home. The only
        difference would be the stool that she would step up onto to sit
        on the exam table.      The records reflect that Mr. Guse was
        attempting her--" I'm sorry, "her balance and fell. It does not
        appear that at any time she tried to navigate onto the stool
        herself." That's the testimony that the doctor, any expert that
        generates a report is held to the fair scope of the four corners of
        the document. So that's what you need to digest as far as the
        testimony of Dr. Henzes is concerned.
Id. at 71-75.
        Nowhere in the trial court's rather confusing instruction did the court

directly indicate that the jury must ignore or disregard the spontaneous

fracture theory.      Instead, the court appears to have again construed the

question as   a   factual matter to be resolved by the jury. While the jury was

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instructed to hold Dr. Henzes to the four corners of the admitted First

Report, the court also told the jury that "the alternative theories that the

doctor just talked about don't necessarily reflect the wording in his report."

Id. at   73 (emphasis added).      This instruction, therefore, dovetails closely

with the comments the court made in granting the motion in limine, and not

with the plaintiffs' argument that the spontaneous fracture theory was

barred as    a   matter of law pursuant to the Court Order. See N.T., 4/27/15,

at 33-34 ("They have their theory as to what Dr. Henzes' initial report

means and you have yours.          And if, in fact, his supplemental report is          a

clarification, then it's not adding anything new, go with the original report.

So, the motion in limine on April 21st is granted. Okay? I don't necessarily

think it has anything to do with it. I don't necessarily think the jury          is going

to conclude what you guys conclude.").

        The trial court indicates that the third (and last) purported violation of

the Court Order occurred when, during redirect examination, Guse's counsel

asked Dr. Henzes, "[the plaintiffs' counsel] asked you questions about lost

balance and falling.      Now, you had mentioned in your report initially the

twisting?"       N.T., 4/29/15, at 114.        Dr. Henzes answered,       "[y]es."   Id.
Counsel then asked him, "[n]ow, can             a   patient have   a   break and then   a

fall?" Id. Dr. Henzes answered, again, "[y]es." Id. The plaintiffs' counsel

objected, and the trial court stated: "Sustained.           You're going on the area

that we already covered and it's          in    the new report.        It's not allowed.
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Disregard that testimony. That was       a   conceptual question about the patient

generally and not the patient in this case." Id.

        I believe this was the first time that the trial court adequately and

sufficiently conveyed to the defendants that the spontaneous fracture theory

was being barred premised on the Court Order's exclusion of any new

theories contained in the Second Report, and the first time that the court

clearly indicated that the matter was not going to be resolved by the jury.

As no subsequent violations of the Court Order (so defined) occurred, I

would conclude, contrary to the Majority, that the trial court abused its

discretion by granting    a   new trial premised on these purported violations of

the Court Order.

        I respectfully dissent.




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