J-A06016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LATOYA TAYLOR                              :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    TENET, INC., T/A HAHNEMANN                 :
    UNIVERSITY HOSPITAL AND RYAN K.            :
    BRANNON, M.D.                              :
                                               :
                       Appellees               :      No. 3013 EDA 2018

            Appeal from the Judgment Entered September 10, 2018
              In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): November Term, 2015 No. 003930


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                   FILED MAY 13, 2020

        Appellant, LaToya Taylor, appeals from the judgment entered in the

Philadelphia County Court of Common Pleas, in favor of Appellees Tenet, Inc.,

t/a Hahnemann University Hospital (“Hahnemann”) and Ryan K. Brannon,

M.D. (“Dr. Brannon”), in this medical malpractice action. We affirm.

        In its opinion, the trial court sets forth the relevant facts and most of

the procedural history of this case as follows:

                                 FACTUAL HISTORY

           Nineteen-year-old [Appellant] was near the end of her
           pregnancy in November 2013. Her weight status was
           classified as obese, which put her at an increased risk of
           post-surgical infection and morbidity.       Her obstetric
           healthcare providers decided to induce labor at forty weeks
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06016-20


       due to her weight. She went to Hahnemann Hospital for the
       induction on November 28, 2013.         The induction was
       successful, but [Appellant] experienced an arrest of labor.1
       At that point, after approximately twenty-one or twenty-two
       hours of labor, the hospital team decided to perform a
       Caesarean section. [Appellee] Dr. Brannon was the on-call
       obstetrician who performed the C-section, and by all
       accounts it went smoothly.

          1  An arrest of labor occurs when the cervix stops
          dilating prematurely, thereby preventing vaginal
          delivery.

       [Appellant] recovered in the hospital from November 30 to
       December 2, and she felt mostly fine during that period.
       She went home on December 2 but began feeling unwell
       that night. On December 3, her symptoms had worsened,
       with extreme chills and [she] had a fever of [101] degrees.
       At discharge, she had been given pain medications and
       instructed to watch for chills, fever, drainage in the incision
       area, and fluid discharge that had color or odor, as any of
       those symptoms could be signs of infection. In accordance
       with these instructions, she called the Hahnemann labor and
       delivery department and spoke with the on-call resident
       about her symptoms. The resident told her to continue
       taking ibuprofen and did not instruct her to come to the
       hospital or seek any other medical attention.

       She continued to experience chills the next day, December
       4, and her temperature had increased to [102] degrees.
       She called Hahnemann again and was told to continue
       taking ibuprofen, and that her next scheduled appointment
       would be coming up soon. The next day, December 5, she
       noticed an odor coming from the incision site that smelled
       “like garbage” and seemed to be consistent or worsening
       over time. Furthermore, she began to see brownish-colored
       fluid on the drainage pad for her wound. She called
       Hahnemann a third time and was instructed to come in to
       the labor and delivery department.

       She went to Hahnemann the next day, December 5, and
       was given a triage evaluation by an unidentified female
       doctor. By this date, six days had passed since her surgery.
       Dr. Brannon testified at trial that, on this date, she was in

                                    -2-
J-A06016-20


       the early stages of the window in which a post-surgical
       infection was likely to manifest: “[O]n post-op day five the
       risk of infection starts to increase. With each passing day
       the risk starts to increase.” The doctor examined the
       incision, cleaned it with saline, and placed a pad over it to
       absorb the drainage. Dr. Brannon then came in and
       introduced himself. [Appellant] heard him discussing with
       the examining doctor whether or not to admit her and
       administer intravenous antibiotics, or to send her home with
       the highest possible dose of non-IV antibiotics. At trial,
       [Appellant] argued that the only proper course of action
       under the standard of care was to admit her and treat her
       with IV antibiotics; however, Dr. Brannon decided to
       discharge her with antibiotics instead. He did not examine
       her wound personally, but he arranged to have her next
       appointment moved up to December 9. He instructed her
       to call if she did not see an improvement with the antibiotics.
       [Appellant] and her mother went home, and [Appellant]
       took a dose of the antibiotics. [Appellant’s] mother testified
       that she noticed a small, red, bruise-like mark on her
       daughter’s stomach, but she assumed it had been caused
       by the doctor poking her daughter during the triage
       examination. She testified her daughter was unable to sleep
       that night due to the odor and pain.

       There was no change in [Appellant’s] status on December
       6, with the continuing odor, brownish fluid discharge, pain,
       and chills, so [Appellant’s] mother called Hahnemann again.
       She explained that she had waited twenty-four hours for the
       antibiotic to work, but she was simply told again that her
       daughter had another appointment soon.

       On December 7, [Appellant’s] mother noticed that the small
       red spot had turned black and was growing “into a big black
       dot,” and the smell was foul. In a panic, [Appellant’s]
       mother called Hahnemann and spoke to the on-call resident.
       She offered to send him a cell phone picture of the area, but
       he declined.       [Appellant’s] mother testified that she
       frantically called Hahnemann numerous times on December
       7 at night and the next morning, since [Appellant] was
       unable to sleep. [Appellant’s] mother testified that, [on] the
       morning of December 8, the black spot had begun to ooze
       and skin was “coming off.” She decided to take [Appellant]
       to the Temple Hospital emergency room since the

                                    -3-
J-A06016-20


       Hahnemann staff did not seem to be giving her serious
       consideration and she “felt like [Hahnemann staff] was
       pushing [her] away” instead of helping.

       [Appellant] then went to Temple Hospital on December 8
       and was examined in their labor and delivery department.
       She was diagnosed with a deep tissue wound infection with
       necrotic (dead and dying) tissue and cellulitis/inflammation
       of the anterior abdominal wall.        She underwent an
       emergency debridement procedure with irrigation and
       lavage to remove all the dead and infected tissue, and clean
       out the wound. The post-operation report noted that a
       “copious amount of purulent fluid was drained.”          The
       pathology analysis of the removed tissues showed that
       [Appellant’s] white blood cell count had been 24.6 which
       [Appellant’s] expert characterized as “indicative of…[v]ery
       significant infection,” and furthermore it was determined
       that the infection had spread beyond the C-section site to
       surrounding tissues. [Appellant] recovered in the hospital
       again and was discharged on December 12.

       Afterward, [Appellant] was required to use a “wound vac”
       on the surgical site for approximately five weeks after
       discharge to collect fluid drainage and sloughed-off tissue
       from the wound. During that time, she had multiple visits
       to the ER for trouble with the wound vac. Her wound
       eventually closed around February, and her symptoms
       resolved. However, she had experienced depression during
       this period that continued for months to a year, and that
       was seemingly influenced by this episode of wound
       infection. She was also left with an abdominal scar which,
       [Appellant’s] expert testified, was larger or otherwise more
       noticeable than the scar that would have been left by her C-
       section alone.

       At trial, [Appellant] alleged that Dr. Brannon had been
       negligent in failing to admit [Appellant] to [Hahnemann] for
       IV antibiotics on December 5, in choosing the “wrong”
       antibiotic, failing to obtain an infectious disease consult, and
       for diagnosing the infection as superficial on December 5
       when a deeper infection was indicated in light of
       [Appellant’s] high-risk status for infection.         Originally,
       [Appellant] had sued Hahnemann Hospital and its affiliated
       entities [under the theory of vicarious liability] for the

                                     -4-
J-A06016-20


          alleged negligence of its staff, and specifically the OB/GYN
          residents who took [Appellant] and her mother’s numerous
          phone calls but did not recognize her symptoms as
          indicating a serious infection.

          Shortly before the start of trial, [Hahnemann] settled with
          [Appellant].[1]   The parties then argued extensively at
          motions in limine and at various times during trial about
          whether Hahnemann would properly be included on the
          verdict slip despite the settlement. The [c]ourt agreed with
          [Appellee] Dr. Brannon that sufficient evidence of the
          [Hahnemann OB/GYN] residents’ negligence was presented
          at trial to permit a jury to find Hahnemann liable, so
          Hahnemann remained on the verdict slip….           However,
          Hahnemann did not participate at trial or offer any defense,
          as its counsel asked to be excused from trial during the
          hearing for motions in limine.

(Trial Court Opinion, filed June 3, 2019, at 1-5) (internal citations omitted).

       The court held a jury trial from May 14, 2018, to May 17, 2018. During

direct examination of Appellant’s expert medical witness, Dr. Marlan Schwartz,

Appellee Dr. Brannon made a series of objections to Dr. Schwartz’s testimony

as outside the scope of his expert report. The court and counsel discussed

the objections at sidebar. During the sidebar, Dr. Brannon suggested that any

testimony related to Dr. Schwartz’s opinion that Appellant should have

received IV antibiotics in the hospital was also outside the scope of his expert

report. The following exchange occurred:

          THE COURT: All right. [Appellant’s counsel], I don’t see
          where Dr. Schwartz opines that your client should have been
          hospitalized.


____________________________________________


1 Neither the trial court docket sheet nor the certified record references or
contains the settlement agreement between Appellant and Hahnemann.

                                           -5-
J-A06016-20


         [APPELLANT’S COUNSEL]: Your Honor, the culture done, the
         preliminary report reports a need for antibiotic dosage
         regimes that use maximum recommended doses and
         prolonged —

         [DR. BRANNON’S COUNSEL]: Possibly.

         [APPELLANT’S COUNSEL]: — intravenous infusion regimes,
         okay. And I submit to you that he is offering that opinion
         that this particular individual should have been admitted to
         the hospital and treated at that time with IV antibiotics.
         Now again I have to say —

         THE COURT: I don’t see hospital there.         It does say
         prolonged intravenous infusion.

         [APPELLANT’S COUNSEL]: The only place where that could
         be carried out would be in the hospital, Your Honor.

         THE COURT: Well, I don’t know that that means inpatient.
         I mean you can bring this out.

         [DR. BRANNON’S COUNSEL]: If I may on that one, Your
         Honor.

         THE COURT: Excuse me.

         [DR. BRANNON’S COUNSEL]: I’m sorry.

         THE COURT: You may bring that out to know that that’s
         what he says, but to me that doesn’t necessarily mean
         inpatient.

         [DR. BRANNON’S COUNSEL]: If I may, Your Honor, that is
         not Dr. Schwartz’s opinion. That’s Dr. Schwartz quoting a
         document in this case. That’s Dr. Schwartz quoting a
         pathology report. That was not made public until December
         7th. That’s not his opinion in this case.

         THE COURT: Well, he may bring that out. You may cross-
         examine Dr. Schwartz on it.

(N.T. Trial, 5/15/18, at 49-51).


                                    -6-
J-A06016-20


      At another point in Dr. Schwartz’s direct examination, the court struck

one of Dr. Schwartz’s answers, which included testimony concerning the use

of IV antibiotics, as outside the scope of his expert report:

         [APPELLANT’S COUNSEL]: And do you have an opinion
         within a reasonable degree of medical certainty as to
         whether or not it was below the standard of care for Dr.
         Brannon to have prescribed Bactrim for the treatment of this
         particular patient?

         [DR. SCHWARTZ]: Yes, I believe that was not the standard
         of care antibiotic for this particular patient.

         [APPELLANT’S COUNSEL]: Would you explain—first would
         you tell the jury what the appropriate antibiotics would be.

         [DR. SCHWARTZ]: When you have a more intensive
         infection developing with a wound infection, and especially
         in someone who is obese, you need to get enough in the
         blood system absorbed and to the far part of the body where
         the infection is in adequate levels. So ideally in this situation
         certainly IV antibiotics at least to get an initial loading dose
         for 24 hours would be advantageous and advised.

         If I was putting someone on outpatient therapy for this,
         while not ideal, I would probably use something like
         Levaquin or Duricef which are a little stronger I think for this
         type of thing, and plus I may add even Clindamycin or Flagyl
         which gets some of the other coverage in the wound
         infection because this is brewing and she’s at high risk to
         have this progress.

         [DR. BRANNON’S COUNSEL]: Objection. Move to strike,
         Your Honor. Outside the scope of his report.

         THE COURT: Sustained.

         [DR. BRANNON’S COUNSEL]: Thank you, Your Honor. Move
         to strike.

         THE COURT: The last answer is stricken.


                                       -7-
J-A06016-20


(Id. at 63-64).

     Finally, Dr. Schwartz again testified about the use of IV antibiotics in

relation to whether Dr. Brannon suspected Appellant of having MRSA at the

time of her December 5th visit to Hahnemann:

        [APPELLANT’S COUNSEL]: Doctor, in your opinion with
        reasonable medical certainty, if the suspicion of MRSA
        existed, what would it be the standard for [Appellee Dr.
        Brannon] to have done?

        [DR. BRANNON’S COUNSEL]: Objection.

        THE COURT: Overruled.

        [DR. SCHWARTZ]: At the least I’d like an infectious disease
        consult and I would start IV antibiotics.

        [DR. BRANNON’S COUNSEL]: Objection again to what he
        would do.

        THE COURT: That’s sustained.

        [APPELLANT’S COUNSEL]: I’m sorry?

        THE COURT: It’s sustained as to what this doctor would do.

        [APPELLANT’S COUNSEL]: Doctor, question, so what I’m
        asking you is not what you would do, but what your opinion
        as to the standard of care would require Dr. Brannon to do.

        [DR. SCHWARTZ]: The standard of care would entail IV
        antibiotics and an infectious disease consult.

(Id. at 71-72).

     Following the conclusion of trial on May 17, 2018, the jury returned a

verdict in favor of Dr. Brannon and Hahnemann. Appellant timely filed a post-

trial motion for a new trial on Tuesday, May 29, 2018 (Monday, May 28, 2018



                                    -8-
J-A06016-20


was Memorial Day), and a supplemental post-trial motion on July 16, 2018.

The court denied Appellant’s post-trial motion on September 5, 2018.     On

September 10, 2018, Dr. Brannon filed a praecipe to enter judgment on the

verdict, and the court entered judgment that same day. On September 28,

2018, Appellant filed a timely notice of appeal. The court ordered Appellant

on October 2, 2018, to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on October

19, 2018.

      Appellant raises the following issues for our review:

         DID THE TRIAL COURT COMMIT ERROR OF LAW AND/OR
         ABUSE OF DISCRETION WHEN IT DENIED THE MOTION TO
         DISMISS [HAHNEMANN] WHEN THERE WAS NO CROSS-
         CLAIM   BY…APPELLEE   [DR.   BRANNON]    AGAINST
         [HAHNEMANN]?

         DID THE TRIAL COURT COMMIT ERROR OF LAW AND/OR
         ABUSE OF DISCRETION WHEN IT PLACED [HAHNEMANN]
         ON THE VERDICT SHEET WHEN THERE WAS NO EXPERT
         TESTIMONY TO ESTABLISH A PRIMA FACIE CASE AGAINST
         [HAHNEMANN] BECAUSE OF AN ABSENCE OF EXPERT
         TESTIMONY AND THE FACT THAT RES IPSA [LOQUITUR]
         DID NOT APPLY BECAUSE OF THE COMPLEX MEDICAL
         ISSUES,  WHICH   WERE    OUTSIDE    THE   COMMON
         KNOWLEDGE OF A LAYPERSON[?]

         DID THE TRIAL COURT COMMIT ERROR OF LAW AND/OR
         ABUSE OF DISCRETION WHEN IT PRECLUDED APPELLANT
         FROM QUESTIONING HER MEDICAL EXPERT ON DIRECT AS
         TO HIS OPINIONS THAT APPELLANT SHOULD HAVE
         RECEIVED IV ANTIBIOTICS IN A HOSPITAL SETTING WHEN
         APPELLEE [DR. BRANNON]’S EXPERT CRITICIZED THAT
         OPINION IN HIS OWN EXPERT REPORT?

(Appellant’s Brief at 2).


                                     -9-
J-A06016-20


      A trial court’s denial of a motion for a new trial implicates the following

principles:

         “[A]bsent 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.” Harman ex rel.
         Harman v. Borah, 562 Pa. 455, 466, 756 A.2d 1116, 1121-
         22 (2000).

              In Harman, the Court noted that the trial court must
              follow a two-step process in responding to a request
              for a new trial. The trial court must determine
              whether a factual, legal or discretionary mistake was
              made at trial. If the trial court determines that one or
              more mistakes were made, it must then evaluate
              whether the mistake provided a sufficient basis for
              granting a new trial. Moreover, the Court noted[:] “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.”

              The Court then set forth an additional two-step
              analysis for appellate review of a trial court’s
              determination to grant or deny9 a new trial. First, the
              appellate court must examine the decision of the trial
              court to determine whether it agrees that a mistake
              was, or was not, made. In so doing, the Court noted
              that the appellate court must apply the appropriate
              standard of review. If the alleged mistake involved an
              error of law, the appellate court must scrutinize for
              legal error. If the alleged mistake at trial involved a
              discretionary act, the appellate court must review for
              an abuse of discretion. The Court reiterated that a
              trial court abuses its discretion by rendering a
              judgment that is manifestly unreasonable, arbitrary or
              capricious, or has failed to apply the law, or was
              motivated by partiality, prejudice, bias or ill will.

                 9The Court specifically held that a review of a
                 denial of a new trial requires the same analysis
                 as a review of a grant of a new trial.

                                       - 10 -
J-A06016-20



               If the appellate court agrees with the trial court’s
               determination that there were no prejudicial mistakes
               at trial, then a decision by the trial court to deny a
               new trial must stand and we need not reach the
               second prong of the analysis. If the appellate court
               discerns that a mistake was made at trial, however, it
               must analyze whether the trial court abused its
               discretion in ruling on the motion for a new trial.

            Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 106
            (Pa.Super. 2002), appeal denied, 572 Pa. 742, 815 A.2d
            1042 (2003) (internal citations omitted). We will overturn
            the decision only where the trial court abused its discretion
            or committed an error of law that controlled the outcome of
            the case. We view the evidence in the light most favorable
            to the verdict winner to determine whether a new trial would
            produce a different verdict. Consequently, if there is any
            support in the record for the trial court’s decision to deny a
            new trial, that decision must be affirmed. Further, a new
            trial is granted only where the verdict is so contrary to the
            evidence as to shock one’s sense of justice, not where the
            evidence is conflicting or where the court might have
            reached a different conclusion on the same facts.

MacNutt v. Temple University Hosp., Inc., 932 A.2d 980, 985 (Pa.Super.

2007) (en banc), appeal denied, 596 Pa. 708, 940 A.2d 365 (2007) (some

internal citations and quotation marks omitted).

          After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Rosalyn K.

Robinson, we conclude Appellant’s first and second issues on appeal merit no

relief.     The trial court opinion comprehensively discusses and properly

disposes of those questions. (See Trial Court Opinion, filed June 3, 2019, at

7-10) (finding: Appellant conceded report of her expert, Dr. Marlan Schwartz,

criticized Hahnemann OB/GYN residents who spoke with Appellant and her

                                        - 11 -
J-A06016-20


mother various times about Appellant’s infection; during pre-trial motion

hearing, Dr. Brannon also stated he intended to elicit testimony from Dr.

Schwartz regarding wrongdoing on part of Hahnemann OB/GYN residents;

thus, court issued pre-trial ruling denying motion to dismiss Hahnemann from

case, because evidence against Hahnemann appeared to be forthcoming; at

trial, Appellant and her mother testified that although they called Hahnemann

several times regarding worsening        condition of    Appellant’s   infection,

Hahnemann OB/GYN residents did not investigate whether Appellant was

developing systemic infection; Appellant’s expert added testimony that

Hahnemann OB/GYN residents should have, but did not, treat as significant

concern evolving symptoms of infection that Appellant reported in phone calls;

even without expert testimony that infection warranted investigation, it is

within realm of lay jurors to understand Hahnemann OB/GYN residents were

not concerned by Appellant’s worsening condition enough to investigate or

recommend medical intervention, despite numerous phone calls from

Appellant and her mother; Pennsylvania law permits settling defendant to

remain on verdict sheet, even after entering joint-tortfeasor release with

plaintiff, where there is sufficient evidence to find defendant liable; jury had

sufficient evidentiary basis to find Hahnemann vicariously liable for negligence

of its residents; thus, court did not err when it retained Hahnemann on verdict

sheet, despite settlement agreement with Appellant and absence of cross-

claim by Dr. Brannon; moreover, jury expressly found Dr. Brannon not


                                     - 12 -
J-A06016-20


negligent in response to question #1 on verdict sheet; jury then proceeded to

question #2, and found Hahnemann not negligent; verdict shows jury found

Dr. Brannon not negligent, regardless of jury’s consideration of Hahnemann’s

liability; thus, even if court erred when it retained Hahnemann on verdict

sheet, Appellant suffered no prejudice). The record makes clear Appellant

suffered no prejudice from the court’s inclusion of Hahnemann on the verdict

sheet to warrant a new trial. See MacNutt, supra. Accordingly, with respect

to Appellant’s first and second issues on appeal, we affirm based on the trial

court’s opinion.

      In her remaining issue, Appellant contends the trial court erred when it

excluded, on direct examination, Dr. Schwartz’s opinion that Appellant should

have received IV antibiotics in a hospital setting on her December 5th visit to

Hahnemann. Appellant asserts Dr. Brannon could not claim surprise or lack

of notice, or contend that Dr. Schwartz’s testimony was outside the scope of

his expert report, because Dr. Brannon’s expert, Dr. Robert Dein, criticized

Dr. Schwartz’s opinion concerning IV antibiotics in both his expert report and

trial testimony.   Appellant maintains the court’s decision to exclude Dr.

Schwartz’s testimony deprived her of the opportunity to rebut Dr. Brannon’s

expert’s testimony and prevented her from offering an opposing position on

the proper standard of care. Appellant concludes this Court should reverse

the trial court’s decision to deny Appellant’s motion for post-trial relief and

remand for a new trial. We disagree.


                                    - 13 -
J-A06016-20


      Admission of expert testimony is within the sound discretion of the trial

court and will not be disturbed absent a manifest abuse of discretion. Brady

v. Ballay, Thornton, Maloney Medical Associates, Inc., 704 A.2d 1076

(Pa.Super. 1997), appeal denied, 555 Pa. 738, 725 A.2d 1217 (1998) (citing

Walsh v. Kubiak, 661 A.2d 416 (Pa.Super. 1995) (en banc), appeal denied,

543 Pa. 716, 672 A.2d 309 (1996)). The Pennsylvania Rules of Civil Procedure

require that an expert’s testimony at trial be limited to the “fair scope” of his

pre-trial report:

         To the extent that the facts known or opinions held by an
         expert have been developed in discovery proceedings under
         subdivision (a)(1) or (2) of this rule, the direct testimony of
         the expert at the trial may not be inconsistent with or go
         beyond the fair scope of his or her testimony in the
         discovery proceedings as set forth in the deposition, answer
         to interrogatory, separate report, or supplement thereto.
         However, the expert shall not be prevented from testifying
         as to facts or opinions on matters on which the expert has
         not been interrogated in the discovery proceedings.

Pa.R.C.P. 4003.5(c).

      This Court has explained:

         [I]t is impossible to formulate a hard and fast rule for
         determining when a particular expert’s testimony exceeds
         the fair scope of his or her pretrial report. Rather, the
         determination must be made with reference to the particular
         facts and circumstances of each case. The controlling
         principle which must guide is whether the purpose of Rule
         4003.5 is being served. The purpose of requiring a party to
         disclose, at his adversary’s request, “the substance of the
         facts and opinions to which the expert is expected to testify”
         is to avoid unfair surprise by enabling the adversary to
         prepare a response to the expert testimony. In other words,
         in deciding whether an expert’s trial testimony is within the
         fair scope of his report, the accent is on the word “fair.” The


                                     - 14 -
J-A06016-20


         question to be answered is whether, under the particular
         facts and circumstances of the case, the discrepancy
         between the expert’s pretrial report and his trial testimony
         is of a nature which would prevent the adversary from
         preparing a meaningful response, or which would mislead
         the adversary as to the nature of the appropriate response.

Nazarak v. White, 216 A.3d 1093, 1106-07 (Pa.Super. 2019) (citing Hassel

v. Franzi, 207 A.3d 939, 951 (Pa.Super. 2019), appeal denied, ___ Pa. ___,

218 A.3d 862 (2019)).

      Instantly, the record belies Appellant’s claim that the court prohibited

her from eliciting expert testimony from Dr. Schwartz on direct examination

concerning the use of IV antibiotics. Following several objections from Dr.

Brannon that Dr. Schwartz’s testimony was outside the scope of his expert

report, Appellant’s counsel requested a sidebar. During this conversation, the

court overruled Dr. Brannon’s objections and decided Dr. Schwartz could

address whether Appellant should have received IV antibiotics in the hospital,

stating: “Well, he may bring that out.” (N.T. Trial, 5/15/18, at 51).

      On direct examination, Dr. Schwartz initially testified regarding the use

of IV antibiotics as follows:

         [APPELLANT’S COUNSEL]: Would you explain—first would
         you tell the jury what the appropriate antibiotics would be.

         [DR. SCHWARTZ]: When you have a more intensive
         infection developing with a wound infection, and especially
         in someone who is obese, you need to get enough in the
         blood system absorbed and to the far part of the body where
         the infection is in adequate levels. So ideally in this situation
         certainly IV antibiotics at least to get an initial loading dose
         for 24 hours would be advantageous and advised.


                                      - 15 -
J-A06016-20


         If I was putting someone on outpatient therapy for this,
         while not ideal, I would probably use something like
         Levaquin or Duricef which are a little stronger I think for this
         type of thing, and plus I may add even Clindamycin or Flagyl
         which gets some of the other coverage in the wound
         infection because this is brewing and she’s at high risk to
         have this progress.

         [DR. BRANNON’S COUNSEL]: Objection. Move to strike,
         Your Honor. Outside the scope of his report.

         THE COURT: Sustained.

         [DR. BRANNON’S COUNSEL]: Thank you, Your Honor. Move
         to strike.

         THE COURT: The last answer is stricken.

(Id. at 63-64).    Although the court struck Dr. Schwartz’s response, it is

unclear whether the court’s decision to strike was based on Dr. Schwartz’s

discussion of IV antibiotics or his discussion of several medications not

mentioned in his expert report, or both. Appellant, however, did not challenge

the objection that the testimony was “[o]utside the scope of his report.”

      In any event, during later examination, the court permitted Dr.

Schwartz’s reference to IV antibiotics. In this instance, Dr. Schwartz testified

that “[t]he standard of care would entail IV antibiotics and an infectious

disease consult” if Dr. Brannon had suspected Appellant of having MRSA at

the time of her December 5th visit to Hahnemann. (N.T. Trial, 5/15/18, at

72). Therefore, contrary to Appellant’s allegations, the court did not prohibit

Dr. Schwartz from testifying to the use of IV antibiotics. Rather, the record

demonstrates the trial court granted Appellant the latitude to question Dr.


                                     - 16 -
J-A06016-20


Schwartz about the general use of IV antibiotics. After the court struck Dr.

Schwartz’s initial testimony concerning IV antibiotics, Appellant failed to

rephrase his question, attempt to narrow the scope of the question, seek

clarification from the court regarding the scope of the precluded testimony, or

challenge Dr. Brannon’s objection. Instead, Appellant simply abandoned this

line of questioning.   Thus, Appellant’s argument that the court improperly

excluded Dr. Schwartz’s testimony is belied by the record and merits no relief.

Accordingly, we affirm.

      Judgment affirmed.

      President Judge Emeritus Stevens joins this memorandum.

      Judge Stabile concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2020




                                    - 17 -
                                                                           Circulated 05/05/2020 09:02 AM




       IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                     TRIAL DIVISION - CIVIL SECTION


LATOY !\TAYLOR.

                     Plaintiff,                            3013 EDA 2018

              v.                                           Trial Court Docket No. 151
                                                                                   ., .
                                                                                        I 03930
                                                                                            .....
                                                                                             ,.
                                                                                      v      .
TENET, INC.. T/A HAHNEMANN UNIVERSITY:                                                       ._.
                                                                                      c,
                                                                                             (

                                                                                             :.
                                                                                      (               :
HOSPITAL and RYAN K. BRANNON. M.D.,                                                   {.
                                                                                      (

                                                                                      ..          I
                      Defend ants.                                                    '      c-




                      OPINION PURSUANT TO PA. R.A.P. 1925(A)                          ('
                                                                                             .    .. .
                                                                                      ·.,
                                                                                             c.·,
ROBINSON, J.                                                                       JUNE 3, 2019

       This appeal stems from a medical malpractice action. Plaintiff, La Toya Taylor, sued

Defendants Hahnemann University Hospital and Dr. Ryan Brannon for failure to timely diagnose

and properly treat an infection she developed following a Caesarean section procedure. At trial,

the jury found that neither of the defendants had been negligent. Plaintiff appealed. for the

following reasons, we respectfully request the Superior Court affirm.

                                     FACTUAL HISTORY

       Nineteen-year-old Plaintiff, LaToya Taylor, was near the end of her pregnancy in

November 2013. Her weight status was classified as obese. which put her at an increased risk of

post-surgical infection and morbidity. (N.T. 5/15/18 a.m. at 35-36.) Her obstetric healthcare

providers decided to induce labor at forty weeks due to her weight. (N.T. 5/15/18 p.m. at 75.) She

went to Hahnernann Hospital for the induction on November 28, 2013. The induction was




                                                                   Taylor Vs Tenet. Inc. Etal-OPFLD



                                                                            111111111 1111
                                                                    1111115110393000110
successful, but Ms. Taylor experienced an arrest of labor.1 At that point, after approximately

twenty-one or twenty-two hours oflabor, the hospital team decided to perform a Caesarean section.

Defendant Dr. Brannon was the on-call obstetrician who performed the C-section, and by all

accounts it went smoothly. (N.T. 5/J 4/18 a.rn. at 87-88.)

        Plaintiff recovered in the hospital from November 30 to December 2. and she felt mostly

fine during that period. (N.T. 5/15/18 p.m. at 78-80.) She went home on December 2 but began

feeling unwell that night. On December 3, her symptoms had worsened, with extreme chills and

had a fever of one hundred one degrees. (Id. at 82-84.) At discharge, she had been given pain

medications and instructed to watch for chills, fever, drainage in the incision area, and fluid

discharge that had color or odor, as any of those symptoms could be signs of infection. (N.T.

5/14/18 a.m. at 91-92.) ln accordance with these instructions, she called the Hahnemann labor and

delivery department and spoke with the on-call resident about her symptoms. (N.T. 5/15/18 p.m.

at 84.) The resident told her to continue taking ibuprofen and did not instruct her to come to the

hospital or seek any other medical attention.        (lsl at 84-85.)

        She continued to experience chills the next day, December 4, and her temperature had

increased to one hundred two degrees. She called Hahnemann again and was told to continue

taking ibuprofen, and that her next scheduled appointment would be coming up soon.                       (lsl at   87.)

The next day, December 5, she noticed an odor coming from the incision site that smelled "like

garbage" and seemed to be consistent or worsening over time. (ld. at 89.) Furthermore, she began

to see brownish-colored fluid on the drainage pad for her wound. (Id. at 90-91.) She called

Hahnemann a third time and was instructed to come in to the labor and delivery department.




I
  An arrest of labor occurs when the cervix stops dilating prematurely, thereby preventing vaginal delivery. (N.T.
5/14/18 a.m. at 88.)

                                                          2
       She went to Hahnemann the next day, December 5, and was given a triage evaluation by

an unidentified female doctor. By this date, six days had passed since her surgery. Dr. Brannon

testified at trial that, on this date, she was in the early stages of the window in which a post-surgical

infection was likely to manifest: "[O]n post-op day five the risk of infection starts to increase. With

each passing day the risk starts to increase." (N.T. 5/14/18 a.m. at 93.) The doctor examined the

incision, cleaned it with saline, and placed a pad over it to absorb the drainage. (N.R. 5/15/18 p.m.

at 96-97 .) Dr. Brannon then came in and introduced himself. Plaintiff heard him discussing with

the examining doctor whether or not to admit her and administer intravenous antibiotics, or to send

her home with the highest possible dose of non-IV antibiotics. (lil at 100.) At trial, Plaintiff argued

that the only proper course of action under the standard of care was to admit her and treat her with

IV antibiotics; however, Dr. Brannon decided to discharge her with antibiotics instead. (Id. at IO 1.)

1-Ie did not examine her wound personally. but he arranged to have her next appointment moved

up to December 9. He instructed her to call if she did not see an improvement with the antibiotics.

(�) Plaintiff and her mother went home, and Plaintiff took a dose of the antibiotic. Plaintiff's

mother testified that she noticed a small, red, bruise-like mark on her daughter's stomach, but she

assumed it had been caused by the doctor poking her during the triage examination. (N.T. 5/15/18

p.m. at 28.) She testified her daughter was unable to sleep that night due to the odor and pain. (19..:)

        There was no change in Plaintiffs status on December 6, with the continuing odor,

brownish fluid discharge, pain, and chills, so Plaintiffs mother called Hahnemann again. She

explained that she had waited twenty-four hours for the antibiotic to work, but she was simply told

again that her daughter had another appointment soon. (lil at 30.)

        On December 7, Plaintiff's mother noticed that the small red spot had turned black and was

growing "into a big black dot," and the smell was foul. In a panic, Plaintiffs mother called
Hahnernann and spoke to the on-call resident. She offered to send him a cell phone picture of the

area, but he declined. Plaintiffs mother testified that she frantically called Hahnemann numerous

times on December 7 at night and the next morning, since Plaintiff was unable to sleep.   (lit at 31-
34.) Plaintiff's mother testified that, the morning of December 8, the black spot had begun to ooze

and skin was "coming off." She decided to take Plaintiff to the Temple Hospital emergency room

since the Hahnemann staff did not seem to be giving her serious consideration and she "felt like

[Hahnemann staffj was pushing [her] away" instead of helping. (Id. at 35.)

       Plaintiff then went to Temple Hospital on December 8 and was examined in their labor and

delivery department. She was diagnosed with a deep tissue wound infection with necrotic (dead

and dying) tissue and cellulitis/inflammation of the anterior abdominal wall. (N.T. 5/15/18 a.rn. at

74-76.) She underwent an emergency debridement procedure with irrigation and lavage to remove

all the dead and infected tissue, and clean out the wound. The post-operation report noted that a

"copious amount of purulent fluid was drained." (Id. at 79.) The pathology analysis of the removed

tissues showed that Plaintiffs white blood cell count had been 24.6. which Plaintiffs expert

characterized as "indicative of. .. [ vjery significant infection" (& at 83), and furthermore it was

determined that the infection had spread beyond the C-section site to surrounding tissues (id. at

85). Plaintiff recovered in the hospital again and was discharged on December 12. (hl: at 39-40.)

       Afterward, Plaintiff was required to use a "wound vac" on the surgical site for

approximately five weeks after discharge to collect fluid drainage and sloughed-off tissues from

the wound. During that time, she had multiple visits to the ER for trouble with the wound vac. Her

wound eventually closed around February, and her symptoms resolved. However, she had

experienced depression during this period that continued for months to a year, and that was

seemingly influenced by this episode of wound infection. She was also left with an abdominal scar



                                                 4
which, Plaintiff's expert testified, was larger or otherwise more noticeable than the scar that would

have been left by her C-section alone.(� at 42, 45-47, 51-54.)

       At trial, Plaintiff alleged that Dr. Brannon had been negligent in failing to admit Plaintiff

to the hospital for IV antibiotics on December 5, in choosing the "wrong" antibiotic, failing to

obtain an infectious disease consult, and for diagnosing the infection as superficial on December

5 when a deeper infection was indicated in light of Plaintiff's high-risk status for infection.

Originally, Plaintiff had sued Hahnernann Hospital and its affiliated entities for the alleged

negligence of its staff, and specifically the 08/GYN residents who took Plaintiff and her mother's

numerous phone calls but did not recognize her symptoms as indicating a serious infection.

       Shortly before the start of trial, the Hahnernann defendants settled with Plaintiff. The

parties then argued extensively at motions in limine and at various times during trial about whether

I-lahnemann would properly be included on the verdict slip despite the settlement. The Court

agreed with Defendant Dr. Brannon that sufficient evidence of the residents' negligence was

presented at trial to permit a jury to find Hahnemann liable, so Halmemann remained on the verdict

slip as discussed more below. However, Hahnernann did not participate at trial or offer any

defense, as its counsel asked to be excused from trial during the hearing for motions in limine.

                                  PROCEDURAL HISTORY

       The case was tried before a jury from May 11, 2018, and May 17, 2018. The jury found

that neither Dr. Brannon nor the Hospital residents (who were identified on the verdict slip as

"Hahnernann University Hospital (OB/GYN residents)") were negligent, so Plaintiff did not

recover. Plaintiff timely filed a Post-Trial Motion which the Court eventually denied on September

5, 2018, after several supplemental filings. Plaintiff timely filed a Notice of Appeal on September

28, 2018, and a Rule 1925(b) Statement as ordered on October 18, 2018.



                                                 5
Plaintiff raises the following allegations of error:

   I. The Court erred when it denied the Motion to Dismiss of Defendant Tenet Health
         System/Hahnemann Hospital when that Defendant had signed a joint tortfeasor
         settlement with Plaintiff and was no longer a defendant in the litigation.
   2. The Court erred when it denied Hahnemann Hospital's Motion to Dismiss as
         Defendant Dr. Brannon never filed any cross-claim against Hahnernann Hospital
         or OB/GYN residents.
   3. The Court erred by placing Hahnemann Hospital and OB/GYN Residents on the
         verdict sheet when Hahnemann Hospital had signed a joint tortfeasor settlement.
   4. The Court erred by placing Hahnemann Hospital and OB/GYN Residents on the
         verdict sheet when Plaintiff had no remaining claims against Hahnemann Hospital.
   5. The Court erred by placing Hahnernann Hospital and OB/GYN Residents on the
         verdict sheet when Defendant Dr. Brannon did not file cross-claims against
         Hahnemann Hospital and/or 08/GYN Residents in the Answer with New Matter.
   6. The Court erred by placing Hahnemann Hospital and OB/GYN Residents on the
         verdict sheet when Defendant Dr. Brannon never amended the Complaint to file
         cross-claims against Hahnemann Hospital or OB/GYN Residents prior to or during
         trial.
   7. The Court erred by placing 1-Jahnemann Hospital and OB/GYN Residents on the
         verdict sheet after Defendant Dr. Brannon testified at trial on May 14, 2018, that he
         was not contending Hahnemann Hospital and OB/G YN Residents were negligent.
   8. The Court erred by placing Hahnemann Hospital and OB/GYN Residents on the
         verdict sheet when Defendant Dr. Brannon did not offer any expert testimony
         critical of Hahnemann Hospital and OB/GYN Residents either through his own
         experts or Plaintiffs experts.
   9. The Court erred by placing Hahnemann Hospital and OB/G YN Residents on the
         verdict sheet when Defendant Dr. Brannon's counsel stated they were going to elicit
         expert testimony from Plaintiffs expert, Marian Schwartz M.D., during trial and
         never did.
    I 0. The Court erred by placing Defendant Hahnernann Hospital and OB/GYN
          Residents on the verdict sheet because Defendant Dr. Brannon did not produce
         sufficient evidence to demonstrate that any other person/entity aside from himself
         was negligent and that negligence was a factual cause of harm suffered by the
         Plaintiff.
    11. The Court erred when it denied Plaintiffs motion in limine to preclude defense
          from questioning Plaintiffs expert Dr. Schwartz on cross-examination about the
         negligence of OB/GYN Residents.
    12. The Court erred when it ruled Plaintiff's expert Dr. Schwartz could not opine on
         direct examination that Plaintiff should have received IV antibiotics in a hospital
          setting on December 5, 2013, because that opinion was outside the scope of his
          expert report even though Defendant's expert Robert Dien M.D. interpreted the
          report to include such opinions and offered his own opinion on the subject in
          rebuttal.
    13. The Court erred by permitting the jury to consider the negligence of any other
          settling Defendant when Defendant Dr. Brannon never requested leave of the Court

                                            6
                 to amend the Complaint to include cross-claims against Hahnemann Hospital and
                 08/GYN Residents either before or after the joint tortfeasor settlement.
             14. The Court erred by permitting the jury to consider the negligence of any other
                 settling Defendant when Defendant Dr. Brannon had between March 29, 20 J 8,
                 when counsel received notice of the joint tortfeasor settlement, and the eve of trial,
                 nearly a month and a half later, to request leave to amend the complaint and add
                 cross-claims against Hahnemann Hospital and/or OB/GYN Residents.
             15. The Court erred by calling the case every morning of trial as "Plaintiff, LaToya
                 Taylor v. Defendant, Ryan K. Brannon, M.D." while leaving settling Defendants
                 Hahnemann Hospital on the caption and then instructing the jury to consider the
                 neg! igence of parties never mentioned as Defendants to the jury before the time of
                 jury instructions.
             16. The Court erred by instructing the jury to consider the negligence of settling
                  Defendants Hahnemann Hospital and 08/GYN Residents when no expert
                  testimony was proffered to support such an instruction, which caused juror
                  confusion on who the Defendant was in this case as demonstrated by the only two
                  questions asked by the jurors to the Court during deliberations.

                                                 DISCUSSION

        As a preliminary matter, we note that thirteen of these sixteen claims can essentially be

reduced/ to one single claim of error: that the Court erred in issuing a verdict slip that included

"Defendant Hahnernann University Hospital (08/GY                    residents)." The jurys only findings on

the verdict slip were as follows:

        Question 1: Do you find that Defendant Ryan K. Brannon, M.D., was negligent?
        [checked box} No.

        [Question 2 properly left unanswered]

        Question 3: Do you find that Defendant Hahnemann University Hospital
        (OB/GYN residents) was negligent') [checked box] No.

See verdict slip at 1-2. The jury is presumed to have followed the trial court's instructions,

Commonwealth v. Cash, 137 A.3d 1262. 1280 (Pa. 2016) (citation omitted), and as is common

practice in this Court the verdict slip in this case contained specific instructions on how the jury

was to proceed numerically through the given questions. We must therefore assume that the jury


2 We endeavor to address every discrete allegation of error raised in the Concise Statement, but many of these issues
as stated overlap significantly or are outright duplicative.

                                                          7
determined that Defendant Dr. Brannon was not negligent (in Question I) before it considered the

question of Defendant Hahnernanns negligence (in Question 3). Therefore, to the extent Plaintiff

argues that the inclusion of Defendant Hahnemann somehow diluted, or prevented a finding of,

Defendant Dr. Brannon's liability, this claim is meritless. Dr. Brannon was found not negligent

even outside the jury's consideration of Hahnemanns liability. Generally speaking, we do not see

that the inclusion of Hahnemann could have prejudiced Plaintiff or affected the jury's verdict. See

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000) (discussing harmless error and

the requirement that an appellant demonstrate prejudice to obtain legal relief).

    I. The Court did not err in including Defendant Hahnemann on the verdict slip, as there
       was sufficient evidence at trial for a jury to find liability. Even if this decision were
       erroneous, no prejudice resulted, and thus no relief is merited.

       Shortly before trial, Defendant Hahnemann Hospital and its affiliated entities entered into

a joint tortfeasor release/settlement with Plaintiff. Defendant Hahnemann's counsel was excused

from attending jury selection in this matter. but attended motions in limine to move for dismissal

of her clients. Plaintiffs counsel supported this motion and averred that he did not intend to elicit

any testimony or present any evidence critical of Hahnemann, although he admitted that the report

of Plaintiffs expert Dr. Schwartz contained criticisms of the Hahnernann residents who spoke with

Plaintiff and her mother at various times. (N.T. 5/14/18 a.m. at 12-15.)

       A settling defendant may remain on a verdict slip, even after entering a joint tortfeasor

release with the plaintiff, so long as there is sufficient evidence for a jury to find the defendant

liable. Herbert v. Parkview Hosp., 854 A.2d 1285, 1289-91 (Pa. Super. Ct. 2004). The settling

defendant may be retained on the verdict slip even without a cross-claim by a non-settling co-

defendant.   !si at 1290, citing Nat'l Liberty Life Jns. Co. v. Kling P'ship, 504 A.2d 1273 (Pa. Super.
Ct. 1986). Therefore, it was proper for Hahnernann to remain on the verdict sheet, despite settling



                                                   8
out with Plaintiff, so long as the jury was presented with sufficient evidence to find Hahnernann

was liable. The inclusion of Hahnernann would not be proper if there were "a profound lack of

evidence" of Hahnemanns negligence. Hyrcza. v. West Penn Alleg:heny Health Sys., 978 A.2d

96 L 969 (Pa. Super. 20'.Y1).

          When the Motion to Dismiss was presented at trial, counsel for Dr. Brannon stated there

would be evidence that there was wrongdoing on the part of employees of Hahnemann.

"Specifically, we intend to elicit testimony through Dr. Schwartz, who plain ti ff' s counsel has just

acknowledged he provided expert report that criticized not only Dr. Brannon, but physicians,

resident physicians at Hahnemann .... " (N.T. Sil 4/18 a.m. at 16.) Counsel also stated that there

would be testimony from Dr. Brannon "as well as cross-examination of Dr. Schwartz on a

credibility issue." (Id. at 20-21.) Since evidence against the settling defendant appeared to be

forthcoming, the Court did not err in denying the original dismissal motion when it was made at

the start of trial.

          At trial, both Plaintiff and her mother gave ample testimony regarding the numerous phone

calls they made to the hospital residents to report worsening symptoms of possible infection, and

the fact that none of these calls seemed to raise alarm or persuade the residents to investigate

whether Plaintiff was developing a systemic infection. Furthermore, Plaintiff a       e.'l'ioe.d-

�<,\a�J     testimony that Plaintiff's evolving symptoms as reported in her phone conversations

"should have been treated as significant" but were not. (N.T. 5/15/18 a.m. at 102-103.)

          In medical malpractice actions against physicians, expert opinion testimony is needed to

make a primafacie case to the fact-finder. However, there is an exception: expert testimony is not

required when the alleged medical malpractice is so clearly within the experience of a layperson

that specialized training or experience is not necessary. See Toogood v. Owen J. Rogal, D.D.S.,



                                                  9
P.C., 824 A.2d 1140, 1145 (Pa. 2003). In this case, there was expert testimony that symptoms like

discolored fluid drainage and odor were signs of systemic infection, and that the worsening of

those symptoms warranted investigation. Even without that testimony, however, the Court believes

it is within the realm of a layperson to appreciate that, despite the number of phone calls made to

the residents to report the significant worsening of symptoms over time, the residents were not

concerned by the changes in patient status enough to even warrant investigation of her condition.

let alone to recommend medical intervention for it. Therefore, it would have been proper for

Hahnemann to remain on the verdict slip even without the expert evidence; since there is such

expert evidence, it is doubly clear that the jury had sufficient evidentiary basis to find that

Hahnemann was vicariously liable for the negligence of its residents. The Court did not err in

retaining Hahnernann on the verdict slip, despite its settling out with Plaintiff and despite the

absence of a cross-claim by the non-settling defendant. See Herbert, 854 A.2d at 1291. Even if that

were not the case. however, Plaintiff was not prejudiced by the inclusion of Hahnemann on the

verdict sheet, so no legal relief is merited.

    2. The Court did not err in its rulings pertaining to Plaintiff's expert Dr. Marian
       Schwartz.

       Plaintiff avers that the Court erred in denying Plaintiffs motion in Ii mine to preclude cross-

examination of Dr. Schwartz on the issue of the negligence of the OB/GYN residents, and that the

Court erred in preventing Dr. Schwartz from offering testimony on the necessity of Plaintiff

receiving IV antibiotics in a hospital setting as outside the scope of Dr. Schwartz's report.

           a. Denial of motion in limine to preclude cross-examination of Dr. Schwartz
              regarding negligence of OB/GYN residents

       We have reviewed the record, and we believe that what Plaintiff refers to is, rather than a

filed motion in limine with argument and citations to legal support, simply an off-the-cuff verbal



                                                 10
request that Plaintiffs counsel made of the Court after all the outstanding motions had been ruled

upon, and as the Court was transitioning to discussion of housekeeping concerns. (N.T. 5/14/18

a.rn. at 26:4-11.)   o argument or formal motion had been presented to this Court, though Plaintiffs

counsel had already availed himself of the opportunity to file such motions regarding other issues

weeks earlier. Furthermore, extensive arguments regarding the scope of Dr. Schwartz's testimony

had already been heard; we do not see that counsel had previously made this request to the Court

during his earlier arguments, which was clearly the most opportune moment to do so. Counsel had

ample opportunity to present a substantive legal argument on this issue, if he had one, to this Court,

or to respectfully request the Court hear his argument despite the fact that the discussion of those

issues had already closed.

        Lastly, we note that Plaintiff did not allege or demonstrate in her Post-Trial Motion that

any prejudice was caused by this decision. No relief is warranted on this issue.

            b. Preclusion of cross-examination on opinion regarding IV antibiotics in a
               hospital setting

        Plaintiff avers that the Court erred in precluding cross-examination of Dr. Schwartz on his

opinions regarding the negligence of the residents because it was outside the scope of his report

when the opposing expert, Dr. Robert Dien, addressed Dr. Schwartz on that particular point in his

own expert report. Counsel argued that, even if the Court found Dr. Schwartz had not specifically

opined on that issue, Dr. Dien had apparently interpreted the Schwartz report to include such an

opinion. Since Dr. Dien construed the report to contain such an opinion, and Dr. Dien opined on

it in response, it could not unfairly surprise Plaintiff to permit exploration of the topic at trial.

        The Court expressed the reasoning for its ruling at the time it was rendered, stating that the

cross-examination would be excluded because Dr. Dien, in his own report, did not state that Dr.




                                                   1I
Schwartz's report was among the materials he reviewed or relied on in forming his opinion. (N.T.

5/15/18 a.m. at 52.)    3


                                                 CONCLUSION

        for the reasons, we respectfully request that the Superior Court affirm.




                                                                                               BY THE COURT:




                                                                               �;<.��
                                                                                                   ROBINSON, J.




1
· To the extent that any of Plaintiff's non-waived allegations of error (potentially waived for being duplicative) were
not addressed in this Opinion, they are omitted here because Plaintiff failed to raise substantive legal arguments in
their support either at trial or in her post-trial filings.

                                                          12
