The opinion
J-A06023-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DAREN OUTTERBRIDGE, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATOR OF THE ESTATE OF :
YHVETTA P. OUTTERBRIDGE, :
DECEASED :
:
Appellant :
:
: No. 1261 EDA 2024
v. :
:
:
TRI-COUNTY EMERGENCY :
PHYSICIANS, LLC, WYNCOTE FAMILY :
MEDICINE, PC, SUZANNE SHORTEN, :
MD, KENNETH S. WEISS, DO, BRENT :
C. BEDDIS, DO, ABINGTON :
JEFFERSON HEALTH, ABINGTON :
HEALTH PHYSICIANS, ABINGTON :
OBSTETRICAL AND GYNECOLOGICAL :
ASSOCIATES, KATIE GARRELTS, MD, :
CHESTNUT HILL HOSPITAL, :
CHESTNUT HILL HOSPITAL, LLC, :
CHESTNUT HILL HEALTH SYSTEM, :
LLC, CHHS HOSPITAL COMPANY, :
LLC, READING HEALTH SYSTEM, :
TOWER HEALTH, AMANDA HOWELL, :
MD, TRI-COUNTY EMERGENCY :
PHYSICIANS AT CHESTNUT HILL :
HOSPITAL, ABINGTON HEALTH :
PHYSICIANS
Appeal from the Judgment Entered May 1, 2024
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 191200157
BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E. *
MEMORANDUM BY PANELLA, P.J.E.: FILED MARCH 28, 2025
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A06023-25
Appellant, Darren Outterbridge, individually and as administrator of the
estate of Yhvetta P. Outterbridge, appeals from the judgment entered on May
1, 2024 in the Court of Common Pleas of Philadelphia County after the jury
returned a verdict in favor of Appellees, Abington Memorial Hospital
(“Abington”), Suzanne Shorten, M.D., Kenneth Weiss, D.O., and Brent C.
Beddis, D.O., and the court denied his motion for a new trial. After careful
review, we affirm on the basis of the well-reasoned opinion of the trial court
dated September 12, 2024.
The trial court summarized the factual and procedural history of the
case. See Trial Court Opinion, 9/12/24, at 1-6. Therefore, a detailed recitation
of the underlying facts is unnecessary. It is sufficient for our disposition to
state that Appellant initiated this medical malpractice action after his late wife
passed unexpectedly on May 10, 2018 at the age of 39. Mrs. Outterbridge’s
cause of death, which the Philadelphia Medical Examiner’s Office determined
to be dilated cardiomyopathy, was disputed at trial. From 2009 to 2018, Mrs.
Outterbridge treated with the Appellee primary care physicians at Wyncote
Family Medicine, which is owned by Abington. Appellant alleges the Appellee
physicians breached the standard of care by not referring Mrs. Outterbridge
to a cardiologist for complaints of chest pain.
During the trial that took place from February 12 to March 1, 2024, the
jury heard the testimony of expert witnesses and of the individual Appellee
physicians, who maintained that they did not breach the standard of care
-2-
J-A06023-25
because they did not believe Mrs. Outterbridge’s complaints of chest pain were
cardiac. The jury credited this testimony and returned a verdict for Appellees.
Appellant filed a motion for a new trial, in which he alleged that “the
jury’s verdict resulted from erroneous and prejudicial evidentiary and legal
rulings.” Motion for New Trial, 3/11/24, at 4. The trial court denied Appellant’s
post-trial motion by order dated April 11, 2024. On May 10, 2024, Appellant
filed a notice of appeal.
Appellant raises the following issues for our review:
1. Whether the trial court erred by improperly precluding
[Appellant’s] counsel from impeaching [Appellees’] expert
cardiology witness, Eliott Gerber, MD, and Brent Beddis, DO, with
standard literature, a Heart Rhythm Society/American Heart
Association Expert Consensus Statement, that [Appellant’s]
expert had already authenticated, and which contradicted
[Appellees’] witnesses’ testimony.
2. Whether the trial court erroneously permitted [Appellees] to
argue, over [Appellant’s] objections, that they were vindicated by
the actions of Mrs. Outterbridge’s medical providers in other
specialties who did not refer [Mrs. Outterbridge] to a cardiologist,
including her treating gynecologist, creating the prejudicial and
misleading impression that Mrs. Outterbridge’s treating
gynecologist and other specialists agreed that [Appellees] met the
standard of care by not referring [Mrs. Outterbridge] to a
cardiologist, and the Court further precluded [Appellant] from
introducing testimony that refuted [Appellees’] argument, in
particular testimony from Mrs. Outterbridge’s treating
gynecologist that if a patient needed an outpatient workup with a
cardiologist she expected the patient’s primary care physician
would manage that referral.
3. Whether the trial court improperly denied [Appellant’s] request
for Abington Memorial Hospital to appear on the verdict sheet for
the negligence of its staff despite the physician [Appellees]
themselves offering testimony that its clerical staff may have
negligently failed to follow protocol and provide the physician
-3-
J-A06023-25
[Appellees] with important faxes from outside sources regarding
Mrs. Outterbridge’s cardiac condition, thereby permitting the jury
to conclude that none of the physician [Appellees] on the verdict
sheet were liable for [Appellant’s] harm.
4. Whether the trial court improperly granted [Appellees’] motion
in limine and precluded [Appellant’s] counsel from referring to or
cross examining the [Appellee] doctors about their deposition
testimony that their real-time, contemporaneous, rationale for
assessing Mrs. Outterbridge’s cardiac risk factors as being low
despite her having a brother who suffered a premature sudden
cardiac death included that they thought Mrs. Outterbridge’s
brother could have been a drug user.
5. Whether the trial court erroneously denied [Appellant’s] motion
in limine and allowed [Appellees] to introduce irrelevant
questioning and evidence that [Appellant] continued to treat with
[Appellees’] primary care practice group after his wife’s death, and
thereby permitted [Appellees] to misleadingly and prejudicially
argue that Mr. Outterbridge was “lying” about this collateral and
irrelevant issue, and that [Appellant’s] entire case was
untrustworthy and unmeritorious as a result of his continued
treatment.
Appellant’s Brief, at 6-8 (trial court answers omitted). Appellant maintains
that a new trial is warranted based on these alleged errors. See id., at 73-74.
“We will reverse a trial court’s decision to deny a motion for a new trial
only if the trial court abused its discretion[,]” which exists where “the trial
court has rendered a judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will.” Risperdal Litig. W.C. v. Janssen Pharm., Inc.,
174 A.3d 1110, 1117 (Pa. Super. 2017) (citations omitted).
Furthermore,
[d]ecisions regarding the admissibility of evidence are within the
discretion of the trial court and will be reversed on appeal only if
-4-
J-A06023-25
the trial court abused its discretion or committed an error of law.…
We will grant a request for a new trial based upon a trial court’s
evidentiary rulings only if those rulings not only are erroneous,
but also are harmful to the complaining party.… Evidence is
relevant if it logically tends to establish a material fact in the case,
tends to make the fact at issue more or less probable, or supports
a reasonable inference or presumption about the existence of a
material fact.
A.Y. v. Janssen Pharm. Inc., 224 A.3d 1, 21 (Pa. Super. 2019) (citation
omitted).
Similarly, we review a trial court’s decision regarding what is included
on a jury verdict sheet for an abuse of discretion or an error of law. See Seels
v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 207-08 n.5 (Pa.
Super. 2017); see also Hyrcza v. West Penn Allegheny Health Sys., Inc.,
978 A.2d 961, 968 (Pa. Super. 2009).
After careful consideration of the record, the parties’ briefs, and the
Honorable Angelo J. Foglietta’s 28-page opinion dated September 12, 2024,
we conclude Appellant’s issues merit no relief. The trial court’s opinion
comprehensively disposes of the issues raised by Appellant, with citations to
the record, and we discern no abuse of discretion or legal error.
Accordingly, we affirm on this basis of the September 12, 2024 opinion,
which we have attached for the convenience of the parties.
Judgment affirmed.
-5-
J-A06023-25
Date: 10/3/2023
-6-
03/21/2025 11:09
Circulated 03/2102025 11.09 AM
COURT
COURT OF COMMON PLEAS OF PHILADELPHIA
PHILADELPHIA COUNTY
FIRST JUDICIAL
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
DISTRICT OF PENNSYLVANIA
DAREN OUTTERBRIDGE, Individually
DAREN OUTTERBRIDGE, Individually :
-
-; - .'
• •• 4
And as
And as Administrator of the
Administrator of the Estate of
Estate of DECEMBER TERM, 2019
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YHVETTA
YHVETTA P. P, OUTTERBRIDGE, deceased: NO.: 00157
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OPINION OF THE COURT 6 n
e
This is the appeal
appeal of Plaintiff Darren Outterbridge, individually and as administrator of the
estate of Yhvetta P. Outterbridge, following
following a
a jury's determination that Defendants Abington
Memorial Hospital, Suzanne Shorten, M.D., Kenneth
Memorial Hospital, Kenneth S. Weiss, D.O.,
D.O., and Brent
Brent C. Beddis,
Beddis, D.O.,
did not breach the standard of care necessary to provide proper medical care and services to Mrs.
Outterbridge whose
Outterbridge whose cause of death at thirty-nine
thirty-nine years old was disputed at
at trial.
trial.
On October 12, 2009, Mrs.
Mrs. Outterbridge became aaprimary
primary care patient of Wyncote Family
Hospital.
Hospital. On
On her
her first
first visit
visit there,
there, she saw Dr. Shorten
she saw Shorten for
for a
a physical
physical exam.
exam. Because
Because Mrs.
Outterbridge's intake paperwork
Outterbridge's paperwork indicated that she wanted to
to address ongoing chest pain, Dr.
Shorten took a
a history prior chest pain that was relieved by a
history which detailed prior a "GI Dr.
GI cocktail" and Dr
Shorten listened to Mrs. Outterbridge's
Outterbridge's heart and performed an electrocardiogram
electrocardiogram ("EKG") in the
office. Dr. Shorten found both to be
office. be "normal." She prescribed antiacids and ordered bloodwork to
check Mrs. Outterbridge's
Outterbridge's cholesterol,
cholesterol. N.T. Feb.
Feb. 13, 2024 P,41-42
P. 41-42.
A
A few months later, on January 4, 2010, Mrs.
Mrs. Outterbridge returned to Wyncote Family
Hospital
Hospital to
to be
be treated for stomach
treated for stomach pain.
pain. She saw Dr.
She saw Shorten who
Dr. Shorten checked her
who checked her heart and reported
heart and reported
aanormal rate and regular
regular rhythm.
rhythm. In November 2010, Mrs.
Mrs. Outterbridge presented
presented to Abington
Hospital
Hospital for abdominal pain
pain where she was examined and found again to have a "normal" heart
OPFL60WOerbddge Vs CheshuA HiB Hospital Etal [SYC]
1111111111111111111111111111111
1
III HNI
19120015700534
1912001 5700634
rate
rate and rhythm
rhythm and no complaints of chest pain.
no complaints pain. N.T. Feb.
Feb. 13,
13, 2024,
2024, P.
P 48-49.
48-49, She saw her
gynecologist complaints of chest pain, palpitations,
gynecologist in 2012 with no complaints palpitations, or shortness of breath. Id. P.
P
52. In
In April
April 2012,
2012, Mrs.
Mrs. Outterbridge presented to
Outterbridge presented to her
her primary
primary care practice
practice with gynecologic
gynecologic
problems
problems and then presented
presented to Chestnut Hill Hospital
Hospital for the same in September
September 2012.
2012
On December 8, 2012, Mrs. Outterbridge's
Outterbridge's brother, Nathaniel Woodard, died at forty-three
forty-three
years old from
years old athererosclerotic disease/
from athererosclerotic disease/ a myocardial infarction
a myocardial infarction (heart attack). N.T.
(heart attack). N.T. Feb. 13, 2024,
Feb. 13, 2024,
P. 31, L. 16-20.
P.31,L. 16-20. On
On December 30-31, Mrs.
December 30-31, Mrs. Outterbridge was admitted
Outterbridge was admitted into Chestnut Hill
into Chestnut Hill Hospital
Hospital
for a
a uterine
uterine issue
issue causing vaginal bleeding, blood
vaginal bleeding, groin pain.
blood clots, and groin pain. N.T.
N.T Feb.
Feb. 13,
13, 2024
2024 PM,
PM,
P.
P. 55,L.
L. 12-14,
12-14, P. 58, L.19-25.
P. 58,L.19-25.
Nine days later, on January 9, 2013, Mrs. Outterbridge saw her gynecologist,
Mrs. Outterbridge gynecologist, Dr. Lynda
Lynda
Thomas-Mabine, in
Thomas-Mabine, in office
office and
and complained
complained of
of chest
chest pain—her
pain first complaints
her first complaints of
of chest
chest pain since
pain since
2009. N.T.
N.T Feb.
Feb. 13, 2024, P.
P 60, L. 2-13, N.T. Feb. 21, 2024, P.
P, 81-82. Dr. Thomas-Mabine
referred
referred Mrs. Outterbridge to
Mrs. Outterbridge to the emergency room
the emergency room for
for problems
problems with
with her
her hemoglobin,
hemoglobin, hematocrit,
hematocrit,
and pulse oximetry; Mrs.
pulse oximetry; Mrs. Outterbridge
Outterbridge had significant marked
had significant anemia and
marked anemia and aahemoglobin level
hemoglobin level
around six
around six or seven, which
or seven, which is
is half of aanormal
half of normal level.
level. In
In the hospital, Mrs. Outterbridge
the hospital, Outterbridge received
received aa
blood
blood transfusion which relieved
transfusion which relieved her chest pain.
her chest pain. N.T.
N.T. Feb. 21, 2024,
Feb. 21, 2024, P. 82, L.
P 82, L. 10-12.
10-12. Staff
performed an EKG on
performed an on her,
her, and
and the
the computer
computer reported
reported a
aseptal
septal infarction of unidentified
infarction of age. N.T.
unidentified age. N.T.
Feb. 13,
Feb. 2024, P. 62, L. 6-22.
13,2024,P.62,L. 6-22. The
The EKG was also
EKG was also read
read by cardiologist Dr. Rodriguez
by cardiologist Rodriguez who
who disagreed
disagreed
with
with the "computer read" and reported
the "computer reported that Outterbridge had normal
that Mrs. Outterbridge normal sinus rhythm
rhythm and her
blood
blood tests
tests for clots and
for clots cardiac enzymes
and cardiac enzymes were
were reported as normal.
reported as N.T. Feb.
normal. N.T. Feb. 13, 2024, P. 52,
13, 2024,P 52, 61-
61-
63. 1
63.'
'Plaintiff
Plaintiffssexpert cardiologist, Dr. Ash, disagreed with
with both
both Dr. Shorten's and
and Dr.
Dr. Rodriguez's
Rodriguez's interpretation
interpretation of
Mrs. Outterbridge's EKGs read in 2009 and 2013.
22
In
In June
June 2014, Outterbridge was admitted to
2014, Mrs. Outterbridge to the emergency room at Chestnut Hill
Hill
Hospital sharp chest pains
Hospital for sharp pains which she reported
reported had lasted for three days. Emergency room
doctors ordered another EKG and by x-ray found that she had a
by chest x-ray a normal
normal "cardiomediastinal
silhouette," meaning
silhouette," meaning dimensions of the heart appeared normal. Mrs. Outterbridge was diagnosed
with
with hypokalemia
hypokalemia (low
(low potassium) and discharge
potassium) and discharge instructions
instructions advised
advised her
her to
to follow up with
follow up with her
her
Thomas-Mabine, within five to seven days.
gynecologist, Dr. 'Thomas-Mabine,
At Mrs.
At Outterbridge's next
Mrs. Outterbridge's visit with
next visit with Dr. Shorten
Shorten in 2014,
2014, she
she was
was pregnant, she
pregnant, and she
denied any
any shortness of breath or chest pain reported to have a
pain and was reported a normal heart rhythm. There
were no reports
reports of chest pain
pain or shortness of breath throughout
throughout the remainder of her pregnancy.
On August
August 10,
I0, 2015, Mrs. Outterbridge Dr. Weiss following chest pain that she stated lasted
Outterbridge saw Dr
two weeks which was relieved with the antacid "Tums."
"Turns." Plaintiffs expert cardiologist testified
that indigestion
indigestion can
can "absolutely" pain in the chest. N.T.
absolutely" cause pain N.T Feb.
Feb. 14, 2024, AM,
AM,PP. 28, L. 12-15.
28,L.
This was
was the complaint of chest pain
the last complaint pain that
that Mrs.
Mrs. Outterbridge had
had before she passed.
passed.
July 7, 2017, Dr. Beddis saw Mrs.
On July Mrs. Outterbridge for fatigue and after labs, found her
hemoglobin to
hemoglobin to be
be 6.6.5.
5. Dr. Beddis
Beddis referred
referred Mrs. Outterbridge to
Mrs. Outterbridge to a
ahematologist,
hematologist, Dr.
Dr. LaPar, and
LaPar, and
there she complained
there she complained of
of "mild
"mild occasional
occasional lightheadedness, with mild
lightheadedness, with mild intermittent fatigue." N.T.
intermittent fatigue." N.T
Feb.
Feb. 26, 2024 AM,P.96,L,7.9,
26,2024 AM, P. 96, L. 7-9. Plaintiff's
Plaintiff's expert cardiologist admitted
expert cardiologist admitted Mrs.
Mrs. Outterbridge's
Outterbridge's severe
severe
iron
iron deficiency
deficiency anemia could cause
anemia could cause light-headedness.
light-headedness. N.T. Feb.
Feb. 13, 2024 PM,
13, 2024 PM, P. L. 8-13
P. 56,L. 8-13.
May 10,
On May 2018, the morning
10, 2018, morning of aascheduled gynecologic
gynecologic surgery,
surgery, Mrs. Outterbridge was
found unresponsive
unresponsive in the bed
bed that she shared
shared with her husband and two-year-old
two-year-old daughter
daughter and
was unable
was unable to
to be revived.
revived. The
The Philadelphia
Philadelphia Medical Examiner's Office,
Medical Examiner's Office, where her autopsy
where her autopsy was
was
performed,
performed, listed her cause of death as dilated cardiomyopathy.
cardiomyopathy. Plaintiff Darren Outterbridge
33
initiated this
this medical
medical malpractice complaint on March
malpractice action by complaint March 9, 2019 and this
this matter was tried
tried
before aajury
jury from February 12, 2024 to March 1, 2024. At trial, Defendant's expert cardiologist,
February 12,
Gerber, and
Dr. Elliot Gerber, and medical examiner forensic pathologist, Dr. Kevin Horn, disagreed with the
Philadelphia
Philadelphia Medical Examiner's cause of death and stated it was their belief to aareasonable
degree of medical certainty
degree certainty that Mrs. Outterbridge
Outterbridge did not die of the medical examiner's listed
cause.
cause.
Plaintiffs
Plaintiff's primary care medicine
primary care specialist and
medicine specialist and primary care standard
primary care standard of
of care
care expert,
expert, Dr
Dr.
Brian Ash testified that many times people are diagnosed with dilated cardiomyopathy as an
"incidental finding"
finding" when,
when, for example,
example, "someone might go to the ER with abdominal pain that
turns
turns out to be an appendix,
appendix, but the ER protocol
protocol is to do an EKG which might show abnormalities.
N.T.
NT. Feb. 12, 2024 P. 43. [emphasis
Feb.12, [emphasis added]. He continued, "So after the emergent situation has
with, the appendicitis
been dealt with, of the abnormal EKG that was
appendicitis then dealt with, the issue of was found,
and subsequently,
and subsequently, the cardiologist diagnosed
the cardiologist diagnosed the cause of
the cause of the abnormal EKG
the abnormal EKG to be
be some
some type of
of
cardiomyopathy.
cardiomyopathy. Id.
Id. [emphasis
[emphasis added]. Throughout years
added]. Throughout years of care by various doctors, including
trips
trips to the
the hospital
hospital for gynecologic issues
for gynecologic surgeries aimed to
issues and surgeries to stop
stop her severe gynecologic
bleeding that caused marked and significant
bleeding significant anemia, Mrs. Outterbridge did not have abnormal
EKG
EKG readings. She did
readings. She did have
have aalow level (grade
low level (grade two or three)
two or three) heart
heart murmur,
murmur, but
but Dr.
Dr. Ash also
Ash also
testified
testified that
that Mrs. Outterbridge's anemia
Mrs. Outterbridge's anemia could have
have caused that.
that. N.T. Feb. 13, 2024 P.
N.T. Feb. P. 17. Dr.
Ash also agreed
agreed that Mrs. Outterbridge's
Outterbridge's low potassium
potassium could cause symptoms of weakness and
abnormal heart rhythms.
rhythms. N.T. Feb. 14, 2024 AM, P.15, L. 20-25.
Gerber, Defendants' expert
Dr. Gerber, expert cardiologist,
cardiologist, also testified that Plaintiff's very severe
pain, difficulty
anemia would cause chest pain, difficulty in the heart and the rest of the body
body and organs getting
enough nutrients
enough nutrients and oxygen, as
and oxygen, as well as fatigue.
well as N.T. Feb.
fatigue. N.T. 27, 2024, P. 44-45,
Feb. 27,2024,P. L. 20-19.
44-45,L. 20-19. Dr. Gerber
Gerber
4
4
testified
testified that
that Mrs.
Mrs. Outterbridge's heart murmurs
Outterbridge's heart murmurs generally during periods
generally occurred during that she
periods that she was
was
anemic and as her hemoglobin
hemoglobin increased,
increased, her murmur was no longer
longer detectable, which ruled out aa
cardiac cause of her heart problems.
problems. N.T. Feb. 27, 2024 PM,P.
PM, P. 3-5.
3-5
Dr.
Dr. Gerber testified to a degree of medical certainty that he
a reasonable degree he did not believe the
Defendant
Defendant doctors caused harm
harm or increased
increased the
the risk of harm
harm to
to Mrs. Outterbridge in
in their
their
treatment of her because she had infrequent
infrequent complaints
complaints of chest pain
pain that were remedied either
with
with antacids or osteopathic
osteopathic manipulation
manipulation of her
her ribs.
ribs. N.T.
N.T Feb.
Feb, 27, 2024 PM,
PM, P. 17, L. 3-19,
P. 17,L. 3-19. He
He
testified that Mrs. Outterbridge
testified that Outterbridge complained
complained to doctors of
to doctors of five
five instances
instances of chest pain
of chest pain over
over a
a period
period
of eleven years
years which was "never
which was never typical
typical of heart
heart pain."
pain." Id. He
He testified
testified that
that Mrs. Outterbridge's
complaints of chest pain
complaints pain were
were never
never consistent with
with aacardiac source because "you
source because "you can't create
heart pain
pain by
by touching
touching the
the chest wall, palpating it.
wall, by palpating it. Heart
Heart pain does not go away
away with antacids.
Heart pain, when it
Heart pain, comes, if
it comes, you have
if you have chest pain
pain and it
it comes, it doesn't disappear for
for two,
two, three
years
years at a
a time,
time, because the source of the heart pain has been there all the time." N.T.
N.T Feb.
Feb, 28,
2024, P. 69-70,
2024, L. 1-7. Further,
69-70,L. Further, he testified that she could not have had dilated cardiomyopathy
from
from 2007 to
t0 2018
2018 without
without there
there ever being
being aachange
change in
in the
the pattern
pattern of her
her EKG
EKG and
and that
that her
her heart,
which measured 400
which measured grams on
400 grams on autopsy,
autopsy, was within
within a
a normal range. Id.,
normal range. Id., P. 70, L. 8-14.
P. 70,L. 8-14. He
He also
also
testified that
testified that the of her
the chambers of her heart
heart were
were normal
normal in size, contradicting
in size, contradicting the
the idea that she
idea that she could
could
have dilated cardiomyopathy
cardiomyopathy because by
by its very
very definition, the heart needs to be dilated. Id. at 71,
71.
Dr. Shorten, Dr. Weiss, and Dr. Beddis all testified that they believed that they did not
breach the standard of care by
by not referring
referring Mrs. Outterbridge
Outterbridge to aacardiologist for her complaints
of chest pain looking at the patient
pain because in looking patient as a
a whole, they did not believe any of her complaints
were cardiac in nature. Dr. Beddis testified that all of Mrs. Outterbridge's EKGs were normal.
Mrs. Outterbridge's normal. Dr.
Shorten testified
Shorten testified that
that when she treated
when she Mrs. Outterbridge,
treated Mrs. she did
Outterbridge, she did not have any
not have any symptoms
symptoms of
of dilated
dilated
55
cardiomyopathy like
cardiomyopathy like palpitations,
palpitations, shortness of breath,
breath, edema, or fatigue.
fatigue. N.T.
N.T. Feb.
Feb. 21,
21, 2024
2024 AM,
AM,
P. 85, L. 17-22.
P. 85,L. 17-22. Dr. Weiss testified
Dr. Weiss testified that
that her
her risk
risk factors
factors for
for heart disease were
heart disease were low—she
she was not
low not
smoking, was
smoking, was not overweight, her
not overweight, her cholesterol
cholesterol was not high, and her
not high, blood pressure
her blood pressure was controlled.
controlled.
N.T.
NT. Feb. 27, 2024
Feb. 27, 2024 PM,
PM, P. 103, L. 2-6. Although
P. 103,L. Although she had
had aabrother
brother who
who died from
from a
a heart-attack,
heart-attack,
siblings and parents
her other six siblings parents were alive, and he believed her chest pain was musculoskeletal
and not
not heart disease. Id
heart disease. Id.
Credibility of witnesses is within the sole province
Credibility jury
province of the jury and on March 1, 2024, the
jury returned aaverdict
jury returned in favor
verdict in of the
favor of defendant doctors,
the defendant doctors, finding
finding that
that Dr. Shorten, Dr. Weiss,
Dr. Shorten, Weiss, and
and
Dr.
Dr. Beddis
Beddis were not negligent
were not negligent in
in the care and
the care and treatment of Yhvetta
treatment of Yhvetta Outterbridge.
Outterbridge. On
On March
March 11,
1H,
2024, Plaintiff
2024, Plaintiff filed
filed aapost-trial
post-trial motion for
for new
new trial. Defendants answered
answered in opposition, and on
April 11,
April 11, 2024 this Court heard oral argument
argument and denied Plaintiff's motion in its entirety.
entirety. On May
1,
1, 2024,
2024, Plaintiff filed aapraecipe
Plaintiff filed praecipe to enter judgment
to enter judgment on
on the
the verdict and on
verdict and on May 3, 2024,
May 3, 2024, Plaintiff
Plaintiff
filed aaNotice of Appeal
Appeal to
to the Superior Court.
the Superior Court. On May
May 7, 2024, this
this Court issued aa1925(b)
1925(b) Order
Order
May 17,
and on May 17, 2024,
2024, Plaintiff timely
timely raised five issues on appeal.
appeal. On July 31, 2024, this Court
issued Plaintiff aasubsequent
subsequent 1925(b)
1925(b) order asking
asking for more specificity
specificity regarding the first issue on
appeal. Plaintiff
appeal. complied and
Plaintiff complied and on
on August 5, 2024,
August 5, 2024, returned
retumed the
the following statement of
following statement of matters
matters
complained of
complained of on
on appeal
appeal (with
(with the clarification for
the clarification for issue one put
issue one put in footnote 4
in footnote below):
4 below)
1.
I. The
The Trial Court committed reversible by improperly
reversible error by improperly precluding
precluding Plaintiff's
Plaintiffs counsel
from impeaching
impeaching Defendants'
Defendants' expert
expert cardiology
cardiology witness,
witness, Eliot Gerber, MD,
MD, and Brent
Brent
Beddis,
Beddis, DO, with standard literature, aaHeart Rhythm
Rhythm Society/American Heart Association
2 See e.g., Keating v. Belcher, 384 Pa.
See e.g., eating • Beleher, 384 Pa. 129, 133, 119 A.2d 535, 538 538 ((1956('It
1956)(`It is the exclusive province of the jury,
not
not the court, to
the court, decide all
to decide all the
the facts, the inferences
facts, the inferences therefrom,
therefrom, the credibility of
the credibility of the
the witnesses
witnesses and the weight and
the weight and
effect to
to be
be given to all of the testimony')
testimony.')
66
Expert Consensus
Expert Statement, that
Consensus Statement, that Plaintiff's
Plaintiff's expert
expert had already authenticated,
had already authenticated, and
and which
which
contradicted Defendants'
Defendants' witnesses' testimony. 3
witnesses' testimony'
2. The
The Trial Court erroneously permitted
permitted Defendants argue, over Plaintiff's
Defendants to argue, objections, that
Plaintiffs objections, that
they were vindicated by the actions of plaintiff-decedent's
plaintiff-decedent's medical providers
providers in other
specialties who
specialties did not
who did not refer
refer plaintiff-decedent
plaintiff-decedent to to aacardiologist,
cardiologist, including
including her treating
her treating
psychologist,
psychologist, creating the
the prejudicial
prejudicial and misleading
misleading impression
impression that
that plaintiff-decedent's
plaintiff-decedent's
treating gynecologist and other specialists
specialists agreed that Defendants met the standard of care
by
by not
not referring
referring plaintiff decedent to
plaintiff-decedent to aa cardiologist,
cardiologist, and
and the Court further
the Court further precluded
precluded
Plaintiff
Plaintiff from introducing
introducing testimony
testimony thatthat refuted
refuted Defendants' argument, in
Defendants' argument, in particular
particular
testimony from plaintiff-decedent's treatingtreating gynecologist that if a a patient
patient needed an
outpatient workup with a a cardiologist
cardiologist she expected the patient's
patient's primary
primary care physician
physician
would manage
manage that referral.
referral
3. The Trial Court improperly
improperly denied Plaintiff s request
Plaintiffs request for Abington
Abington Memorial Hospital
Hospital to
appear
appear onon the verdict sheet
the verdict sheet for the negligence
for the negligence ofof its staff despite
its staff despite Defendant themselves
Defendant themselves
offering testimony that
that its may have
its clerical staff may have negligently
negligently failed
failed to
to follow
follow protocol
protocol and
provide the defendant physicians with importantimportant faces from outside sources regarding
regarding
plaintiff-decedent's cardiac condition thereby
thereby permitting
permitting the jury
jury to conclude that none of
the physician defendants
the physician defendants onon the
the verdict sheet were
verdict sheet liable for
were liable for Plaintiff's harm.
Plaintiffs harm.
4. The Trial Court improperly granted Defendants' motion in limine and precluded
4. precluded Plaintiff's
counsel from referring
counsel from referring to
to or
or cross-examining
cross-examining thethe defendant doctors about
defendant doctors about their deposition
their deposition
testimony that their real-time, contemporaneous, rationale for assessing assessing plaintiff-
plaintiff-
decedent's cardiac risk
decedent's cardiac risk factors as being
factors as being low despite her having
low despite having a
a brother
brother who
who suffered
suffered from
from
a
a premature sudden cardiac
premature sudden death was
cardiac death was that
that they thought
they thought the
the decedent's
decedent's brother
brother could
could have
have
been aadrug
drug user.
user.
erroneously denied
5. The Trial Court erroneously Plaintiff's motion in
denied Plaintiffs in limine and permitted
permitted Defendants
to introduce irrelevant questioning and evidence that plaintiff-decedent's
plaintiff.decedent's husband,
husband, Mr.
Outterbridge, continued to
to treat with Defendants' primary
primary care practice
practice group
group after his
The trial court
The
3 court precluded
precluded Plaintiff's counsel from cross
Plaintiffs counsel cross examining
examining Defendants' cardiology expert,
Defendants cardiology expert, Eliot Gerber,
Eliot Gerber,
MD, and Brent
MD, and Brent Beddis, DO, with
Beddis, DO, with an Expert Consensus
an Expert Consensus Statement
Statement ("Expert Consensus Statement")
("Expert Consensus Statement") published
published byby the
the
Heart
Heart Rhythm Society/American Heart
Rhythm Society/American Heart Association
Association in in 2013
2013 related
related to
to screening and testing
screening and of first-degree
testing of first-degree relatives
relatives
of victims
of of unexplained
victims of sudden cardiac
unexplained sudden cardiac death
death at
at aayoung
young age.
age. Plaintiff sexpert,
Plaintiffs expert, Dr.
Dr. Hayek, authenticated the
Hayek, authenticated the
Expert Consensus Statement as standard within the field. N.T. 2/20/24
N.T 2/20/24 at 75- 75-76.
76. Dr.
Dr. Gerber testified that there was
no
o reason for Mrs. Mrs. Outterbridge to undergo echocardiogram, even if referred to aacardiologist. N.T. 2/27/24 PM at
cardiologist. N.T,
63-64. Plaintiff's
63-64. counsel sought
Plaintiff's counsel sought to
to impeach
impeach Dr. Gerber with
Dr. Gerber the Expert
with the Consensus Statement
Expert Consensus Statement indicating
indicating that Mrs.
that Mrs.
Outterbridge's family
Outterbridge's family history ofof sudden
sudden unexplained cardiac death at
unexplained cardiac at aayoung age required
young age required anan echocardiogram,
echocardiogram, but but
the trial
the court precluded
trial court precluded this use of
this use of the
the treatise
treatise for
for impeachment.
impeachment,NT N.T. 2/28/24
1/28/24 AMAM at 35:12-51:16.
at 35:12-51 16, The
The trial court
trial court
made clear
made clear that
that its
its ruling
ruling was
was based on on relevance and "that
relevance and "that Dr. didn't agree
Dr. Gerber didn't agree that
that it
it was authoritative." Tr.
was authoritative." Tr. of
of
4/11/24 Post-Trial
4/1124 Post- Trial Motion Argument at
Motion Argument 69-74.
at 69.74.
Further, Dr. Beddis,
Further, Dr. Beddis, whowho Defendants
Defendants represented
represented toto the
the jury
jury was
was an expert, opined
an expert, opined that
that it
it was
was "never
"never indicated" for
indicated" for
him to obtain an echocardiogram for Mrs. Mrs. Outterbridge,
Outterbridge, that the medical literature did not requirerequire such,
such, and
and that he
provided
provided Mrs. Outterbridge with
Mrs. Outterbridge with good
"good care." See,See, e.g.,
e.g., N,T,
N.T. 2/28/24
2/28/24 PMPM atat 16-17.
16.17. Dr.
pr. Beddis admitted that the
Beddis admitted the
Expert Consensus Statement was was the kind of resource that primary
primary care physicians
physicians generally
generally can go
go to and would
use. N.T. 2/26/24
use. N.T 2/26/24 AM AM atat 18:5-15.
18:5-15. However,
However, the court precluded
the trial court impeachment of
precluded impeachment of Dr.
Dr. Beddis
Beddis with the Expert
with the Expert
Consensus Statement. N.T N.T. 2/26/24 AM at 6.25-15(The
6:25-15 ("The objection
objection is sustained.");
sustained."); N.T. 2/26/24 AM at 1820-2118:20-21.
77
wife's death, and
wife's death, and thereby
thereby permitted
permitted Defendants to misleadingly
Defendants to misleadingly and
and prejudicially argue
prejudicially argue
that Mr. Outterbridge
Outterbridge was "lying"
"lying" about this collateral and irrelevant issue, and that
Plaintiff's was untrustworthy
Plaintiffs entire case was untrustworthy and unmeritorious.
For
For the
the foregoing
foregoing reasons, these
these five legal error
five claims of legal error presented
presented by
by Plaintiff's
Plaintiffs counsel
are unmeritorious and should be denied in their entirety,
entirety.
Plaintiffs
Plaintiff's first
first issue
issue on appeal,
appeal, that
that this Court committed reversible
reversible error by precluding
precluding
Plaintiff's
Plaintiffs counsel from impeaching
impeaching Defendants' expert cardiology
Defendants' cxpert cardiology witness,
witness, Elliot
Elliot Gerber, MD,
and Defendant Brent Beddis, DO, with an article
article "The Expert
Expert Consensus Statement on the
Diagnosis
Diagnosis and Management
Management of Patients
Patients with
with Inherited Primary
Primary Arrhythmia Symptoms" by
Arrhythmia Symptoms" by the
the
Heart Rhythm
Rhythm Society
Society and endorsed by the American College of Cardiology Foundation and the
American Heart Association, should be deemed meritless as this Court's decisions were in
accordance with the Pennsylvania
Pennsylvania Rules of Evidence. First, Plaintiff was precluded from
questioning Dr.
questioning Gerber about
Dr. Gerber about the
the article
article because
because it was not
it was relevant to
not relevant to the issues at trial.
issues at The article
trial. The article
guidelines for
articulated guidelines cardiologists when
for cardiologists when managing
managing aapatient
patient who
who is
is referred
referred to
to them
them who
who has
a
a family
family history of heart issues
issues and what a
a cardiologist could/should do when learning
learning of a
a patient
patient
who has a
a family member die of an
an "unspecified" cardiac condition, is not relevant as to what aa
primary physician could/should do to
primary care physician good care.
to render good
Next,
Next, Plaintiff
Plaintiff was precluded
precluded from questioning Dr.
from questioning Dr. Beddis
Beddis with
with this
this article
article because
because it
it was
not properly authenticated— it is outside of his specialty, was not authenticated as relied on as
properly authenticated
standard in his field, and he did not personally
personally rely
rely on it. Fundamentally,
Fundamentally, for evidence to be
admissible, it
it must
must be relevant. Pa.R.E.
Pa.RR.E. 402. Evidence
Evidence is
is relevant
relevant if.
if: (a)
(a) it has any tendency
has any tendency to
to
make a
afact more or less probable
probable than it would be without the evidence; and
and (b)
(b) the fact is of
consequence in determining the action. Pa.R.E.
Pa.RE. 401.
401,
8
8
Additionally, our rules
Additionally, rules of
of evidence do not recognize
recognize aahearsay
hearsay exception
exception for
for a
a learned
learned
treatise. See Pa.R.E. 803(18).'
803(18). 4 AA "learned
learned treatise" is any textbook, published
published work, or periodical
periodical
that
that has been accepted as authoritative or as reliable
been accepted authority by
reliable authority by members
members of a specific
a specific
professional of Evidence 703.15[3].
professional community. See Ohlbaum on the Pennsylvania Rules of 703.15[3]. Under
Pennsylvania
Pennsylvania law,
law, the
the contents of aalearned
learned treatise
treatise offered at trial
trial to establish principles
principles or theories
is inadmissible hearsay, an extrajudicial declaration offered to prove the truth of the matter
asserted. See Aldridge
asserted. See Aldridge •
v. Edmunds, 561 Pa.
Edmunds, 561 Pa. 323,
323, 750
750 A.2d
A.2d 292, 296 (2000).
292, 296 Experts may
(2000). Experts rely on
may rely on
authoritative publications in formulating
formulating their opinions, and, to aalimited extent, our courts permit
permit
experts to
experts to briefly
briefly reference
reference materials
materials to explain the
to explain the reasons underlying their
reasons underlying opinions. Id.
their opinions. Id. at
297.
297, While such materials are not admissible, an expert may be impeached
impeached with statements
contained in aatext or publication reliable by him_or
publication deemed authoritative or reliable_h him or other experts in the
same field.
ae field, See McDaniel v. Merck, Sharp &
& Dohme, 367 Pa.Super. 600, 533 A.2d 436
(1987). [emphasis added],
(1987).[emphasis added], Pa.
Pa. R.
R. Evid.
Evid. 803(18).
Further, a credibility may
a fact witness's credibility may be challenged
challenged on cross-examination with respect
respect
to any
to any publication
publication in the
the field that zenerally reliable.
that he considers generally reliable. Crespo v.
• Hughes, 167
167 A.3d
A.3d
168,
168, 182
182 (Pa.Super. 2017) (citing
(Pa.Super. 2017) Majdic, supra at 339)
(citing Majdie, 339) [emphasis
[emphasis added].
added]. See also Burton-Lister
v.
• Siegel, & Lebed Assocs.,
e Sivitz &
Sigel, Assoes., 798 A.2d 231, 239
239 (Pa.Super.
(Pa.Super. 2002)
2002) (finding it permissible
(finding it permissible to
cross-examine defendant
cross-examine defendant physician
physician with
with a
a publication
publication that
that he deemed
deemed authoritative).
authoritative), Dr.
Dr. Beddis
Beddis
aRule 803,
"Rule 803. Exceptions
Exceptions to
to the
the Rule
Rule Against
Against Hearsay--Regardless
Hearsay--Regardless of Whether Is Available
Whether the Declarant ls Available as aaWitness
Witness
18)
18) Statements in
in Learned
Leamed Treatises, Periodicals, or Pamphlets
Pamphlets (Not
(Not Adopted)
Comment: Pennsylvania has
Comment: Pennsylvania has not adopted F.R.E.
not adopted 803(18). Pennsylvania
F.RR.E. 803(18). does not recognize
Pennsylvania does an exception
recognize an exception to the
to the
hearsay
hearsay rule treatises. See
rule for learned treatises. See Majdic
Majdie v.
• Cincinnati Machine Co.,370
Machine Co,, 370 Pa. Super. 611, 537
pa. Super. 537 A.2d 334 ((1988)
A.2d 334 1988).
Regarding
Regarding the permissible
permissible uses of learned treatises under Pennsylvania
Pennsylvania law, see Aldridge v.
v. Edmunds, 561 Pa. 323,
750 A.2d
750 A.2d 292
292 (Pa. 2000).
(Pa. 2000)
Pa.R.E. 803(18)
803(18).
99
testified
testified in
in this
this trial
trial as aafact witness,
witness, despite
despite defense
defense counsel's
counsel's reference
reference to
to him as
as an
an "expert"
expert" in
in
opening statements.°
opening statements. 5
The law
law is
is well
well settled that Superior Court's "standard of review of an
that the Superior an evidentiary
ruling
ruling made by
by the trial court is extremely
extremely narrow." Capoferri,
Capoferri, supra at 143. "The
The admission or
exclusion of
of evidence
evidence is aamatter
matter within
within the sound discretion of the trial court,
court, which may
may only be
reversed upon
upon aashowing
showing of a
amanifest abuse of discretion. To constitute reversible error, an
evidentiary ruling must
evidentiary ruling must not only be
not only be erroneous, but also harmful
harmful or prejudicial
prejudicial to
to the
the complaining
party."
party." Potochnick
Potochnick v.
• Perry,
Perry, 861 A.2d 277, 282
282 (Pa.Super.
(Pa.Super. 2004).
2004)
In
In Charlton v.
• Troy,
Troy, 236 A.3d 22, (Pa.Super,
(Pa.Super. 2020), the Superior Court found
found the
the trial
trial
extremely prejudicial
court committed an extremely prejudicial error and mandated aanew trial following the trial court's
allowance of counsel utilizing
utilizing a
a neurology
neurology textbook to impeach the defendant obstetrician, Dr.
Troy. Superior Court found that without Dr.
Troy. The Superior Dr. Troy's acknowledgment that the text was aa
standard or authoritative work in the field, "no
"no foundation was laid that would establish the Volpe
textbook
textbook as aalearned
learned treatise
treatise for
for the limited purpose
purpose of impeaching
impeaching Dr. Troy."
Further,
Further, the article discussed
the article discussed head
head position during delivery
position during delivery—which
which was
was the
the exact issue on
issue on
trial—and
trial and whether Dr. Troy
Troy breached the standard of care of an obstetrician and harmed the baby
baby
he delivered when he did not use ultrasound technology to make sure the neck was flexed during
delivery to
delivery snapping the dura and causing paralysis
to avoid snapping the ultimate injury to the Plaintiff. The
paralysis--the
Defense Counsel:
Defense
5 Counsel: You
You areare going
going to
to hear
hear from expert
expert witnesses.
witnesses. AsAs aapoint of fact,
point of the three
fact, the three doctors I have the
I have the
privilege to represent
privilege represent in this case, Dr. Beddis, Dr. Weiss, and Dr.
Dr. Shorten, they are experts too. Just means you're a
a
doctor and
doctor and you
you practice and that's
practice and that's what
what you do for
you do for aaliving.
living. And
And they
they are
are going
going toto explain
explain to
to you, in their
you, in own words,
their own words,
why
why they
they absolutely complied with with the
the standard
standard of care in
in this case. And I agree, absolutely, you're going
I agree, going to
to get all
your law in this case from His Honor.
Honor. N.T.
N.T Feb.
Feb. 12, 2024 AM P. 53. L. 16-25,
P. 5$3.L. 16-25,P.P. 54, 1-3.
54,1-3
This Court corrected Plaintiff's
Plaintiffs misunderstanding
misunderstanding regarding Defense counsel's statement that the defendant doctors
were experts.
experts. See. N.T.
N.T Feb.
Feb. 26, 2024 AM, P. 11. H
10
Superior Court stated that "[ilt
"[i]t is beyond cavil that the Volpe
Volpe text was used as substantive evidence,
•e., for the truth of the matter asserted,
i.e., asserted. The reading of excerpts from the text invited the jury
jury to
view the
the `'snapping'
snapping' or
or `popping'
'popping' sound heard during G.C's
G.C.'s delivery both as evidence of Dr. Troy's
Troy's
negligence
negligence and
and as proof
proof that
that he caused the
the injury. Burton-Lister, supra at 239
injury. See Burton-Lister, 239 (finding
(finding error
where a
a publication was used to cross-examine aaparty physician by reading in portions as this use
was
was "an implicit invitation to the jury to view the substance of the material as true")."
true")." Charlton v.
Troy,
Tray, 2020
2020 PA
PA Super
Super 170,
170, 236 40 (2020).
236 A.3d 22, 40 (2020)
This Court did not commit the same error. This Court first precluded
precluded Plaintiff from
questioning fact
questioning fact witness Dr. Beddis, aafamily
family care
care practitioner,
practitioner, with evidence of what is standard
for a
a cardiologist
cardiologist to do as published
published in an article in the cardiology journal Heart Rhythm
Rhythm Society
because Dr. Beddis, or any other primary
primary care physician
physician testifying
testifying in this trial, did not establish
this journal as generally reliable in his field as a
a primary care physician and Dr.
Dr. Beddis did not
state that he was familiar with the article or the journal
journal in
in which it was published.
published.
At side bar,
At side bar, Mr
Mr. Ross advised the
Ross advised Court that
the Court he wanted
that he wanted to ask Dr. Beddis
to ask Beddis if
if aastudy
study done
done in
in
collaboration with the American Heart Association is the kind of standard literature and study that
would be within
would be within the field
field of what aaprimary
primary care
care physician
physician like himself would
would look
look at."
at." The Court
inquired with Plaintiff's
Plaintiffs counsel further if it was
was "within the standard of care that he must follow.
Is that what you're
ls that going to ask him." Mr. Ross answered that it was his intention to ask him
you're going him "with
with
respect to
respect to primary care, is
primary care, standard?"NT.
is it standard N.T. Feb.
Feb. 26,
26, 2024
2024 AM,
AM, P. 13, L. 15-17
P. 13,L. 15-17.
In accordance with Pennsylvania law regarding questioning a
regarding questioning a fact witness, the Court
Plaintiff's counsel that
advised Plaintiffs that if the
the proper
proper foundation
foundation was laid, meaning
meaning that
that Dr. Beddis was
familiar
familiar with
with that
that Journal and stated
Journal and stated that
that it
it was generally
generally reliable
reliable in
in the
the field of primary
field of care,
primary care,
Plaintiff's counsel could question
question Dr. Beddis about this article. The Court further advised
11
Plaintiff's
Plaintiff's counsel that
that if Dr. Beddis, in the
the alternative, rejected knowledge
knowledge of the study and states
that it is not what he relies on to
to establish general
general practice
practice for good care to his patients in stating
something like,
something like, "I'm not
not aware of the study,
study, and,
and, I
I don't consider it,
it, IIdon't
don't consider it
it in
in my
my field
of practice,
practice, and
and the
the studies
studies that
that I do --
I do -- IImean, the
the studies that
that I
I review
review and the
the journal that
that I
I utilize
utilize
-- I
I don't know if he would say
say this,
this, but they
they set the standard of care of how I
I treat patients with
cardiac issues. I'm not aware of this and as far as I'm concerned this has no bearing on how I
I treat
patients. Then [Plaintiff
patients. Then [Plaintiffsscounsel]
counsel] can't ask him
him about it."
it." Id.,
Id., P. 13-14. Returning
P. 13-14, Returning to
to open court,
Plaintiffs counsel's questioning
Plaintiff's questioning of Dr. Beddis proceeded
proceeded as follows:
Q.
0. Now,
Now, in in terms
terms ofof you
you trying
trying to to stay abreast of
stay abreast of the
the literature
literature with
with respect
respect to cardiac issues,
to cardiac issues,
the management
management of your your patients
patients as aaprimary
primary care physician, the management of patients
cardiology issues, is this the kind of literature that is sort of a
with cardiology a standard piece of
literature for even a a primary
primary care physician
physician to read, to understand cardiac issues, in
particular
particular issues having
having to deal with sudden cardiac death in a a young person? Is this the
kind
kind of literature that you you would look to that that physicians
physicians like yourself, in in primary
primary care
medicine, would
medicine, look to?
would look to?
A. I
I mean,
mean, I I don't
don't think
think that I I would
would read specifically. IIprobably
read this specifically. probably wait
wait for
for it to
to be
be
mentioned in the family family medicine article that would guide guide us in how to, you know,
manage these patients.
manage patients. But we ean can say
sav that_it'sa
that it's aresource_to_be_used,
resource to be used, but but it's
it's not,
not, no
one is saving
one_is saving it's the standard.
it's_the standard.
Q.
0. I'm
I'm not getting there
not getting there yet.
yet. I'm just asking
I'm just asking you,
you, is it
it the
the type of resource that
type of that is
is used
used byby
primary care physicians
primary physicians in general,
general, to make
make themselves aware of the management of
cardiac issues; specifically, the
issues; and specifically, the management
management of aapatient
patient who
who has
has aafirst-degree
relative
relative who
who has dieddied ofof sudden
sudden cardiac death. Is
cardiac death. Is it
it the kind of
the kind of resource
resource that primary
that primary
care physicians
care generally can
physicians generally en go go to and
and would
would use? That's what I'm
use? That'swhat I'm asking.
asking. I'mI'm not
not
getting to standard of
getting of care yet.
yet.
A.
A. Certainly it's something
Certainlv it's something we could use,
we could sure.
use, sure,
MR. ROSS: May
May I proceed, Your Honor?
I proceed,
THE WITNESS:
WITNESS: AlongAlong with
with many other resources.
many other resources,
Id., P. 17-18.
Id.,P. 17-18.
objected and this Court instructed Plaintiff's
Defense counsel objected Plaintiffs counsel to lay more of a
a
foundation
foundation before proceeding
proceeding to question Dr. Beddis
to question about the
Beddis about article because
the article because he stated that
he stated that he
he
would not
would read this
not read this specifically, and that
specifically, and that it was the
it was type of
the type of resource
resource that
that could be
be used
used in
in the field
the field
with other
with other resources
resources but did not
but did not answer affirmatively, within
answer affirmatively, within this Court's discretion,
this Court's discretion, to establish
establish
12
12
that this resource was generally
generally reliable and he had also just
just testified in a
aprior
prior moment that it was
not the standard in his field. Plaintiff's counsel's questioning continued:
0.
Q. I'm asking you
l'masking if this
you if is the
this is the type of literature
type of literature that
that primary care physicians,
primary care physicians, the
the type of just
type of just
standard literature
standard literature that
that primary
primary care physicians
physicians would look to
would look to in
in order
order to keep themselves
to keep themselves
types
abreast of these types of issues? And I'm
I' m not asking if you in particular would read it, but
people
people in your
your specialty.
specialty. Is it the kind of literature theythey would look to?
A. I can only
Ican only comment on myself. myself.
0.
Q. I'm sorry?
A. I guess I
guess only comment on myself. IIdon't know.
I can only
Q.
Q. Was there cardiology literature that you
cardiology you would look keep yourself
look to keep yourself knowledgeable and
cardiology issues that would pertain
current on cardiology pertain to your clients? Was there cardiology
literature that you
you would look to, separate and apart from family physician literature?
separate
Was
Was there cardiology literature?
there cardiology literature? And
And if if so,
so, what was
was it?
A.
A. Iguess
guess not
not separate
separate specific
specific cardiac resources.
resources. I
I would
would do it it all
all under
under family
medicine resources.
Q.
Q. I
I see.
see. So
So you
you wouldn't look at any cardiology resources?
resources?
A.
A. Maybe I
Maybe I would
would -- --
Q.
0. If
If so,
so, what?
THE COURT: Let him finish the answer.
THE WITNESS: I I don't know off the top of my head.
Id.,
Id,P P. 18-19.
Dr. Beddis
Beddis named
named "the
"the American
American Heart
Heart Association,
Association, the
the American College of Cardiology,
American College Cardiology,
anything"
anything" and stated "In AFP [family
In our AFP [family practice]
practice] journal
journal they publish articles from them, so I
they publish I
say the AFP journal"
would say as cardiology specific resources that he would use
journal" as use to keep himself
knowledgeable cardiology specific
knowledgeable and current on cardiology specific issues.
issues. N.T. Feb.
Feb. 26, 2024,
2024, AM,
AM, P.20,
P.20, L. 4-14.
Plaintiff proceeded
proceeded to question
question the witness and the Court believed Plaintiff was trying to back-
door this article into evidence by just
just asking
asking about medical literature in general and advised
Plaintiff's
Plaintiffs counsel how to ask the question
question to elicit the information he was seeking.
seeking. Instead,
Plaintiff's
Plaintiffs counsel moved onto
moved on discussing a
to discussing adifferent article that
that was published
published in
in aaJournal that
Dr.
Dr Beddis stated that he relies on for information.
information. Accordingly,
Accordingly, it was Dr. Beddis' responses to
Plaintiff's questions, in accordance with Pennsylvania
Plaintiffs questions, Plaintiff's counsel from
Pennsylvania law, that precluded Plaintiffs
asking
asking Dr.
Dr. Beddis further detailed information regarding
regarding an article in aacardiology
cardiology journal
journal with
13
13
which Dr.
which Dr. Beddis
Beddis was
was unfamiliar and was
unfamiliar and was not established as
not established as generally
generally relied
relied on
on in
in his
his field as a
field as a
primary
primary care physician.
physician.
It would have been an abuse of discretion if this Court would have allowed Plaintiff to
to
question
question Dr. Beddis regarding
regarding an article that he was
was unfamiliar with, in a
a medical journal that was
not established to
not established to be
be relied on as
relied on standard in
as standard in his
his field of primary
field of primary care. This Court
care. This Court advised
advised Plaintiff
Plaintiff
correctly
correctly that
that Dr. Beddis,
Beddis, as
as aafact
fact witness, could be
witness, could be questioned about articles
questioned about articles that
that are generally
are generally
relied
relied on in
in their
their respective
respective fields,
fields, but
but Plaintiff's
Plaintiff's counsel
counsel could not
not establish through testimony
testimony
that this article was
was just
just that.
Next,
Next, Plaintiff's counsel argues
argues that they
they were precluded
precluded from "impeaching an expert with
from "impeaching
standard literature in his field," which Plaintiff states his cardiologist Dr. Hayek qualified as such."
such.'
acknowledges that an expert can be impeached with standard literature in his field,
This Court acknowledges
however, to be permissible,
however, permissible, that evidence must still be relevant to the issue at trial, as relevancy is
the fundamental consideration regarding
regarding admission of evidence. Pa.R.E. 607.
Plaintiff's
Plaintiffs counsel correctly
correctly stated that this Court focused on relevancy as the reason for
precluding him from
precluding him from improperly questioning Dr.
improperly questioning Gerber regarding
Dr. Gerber regarding literature
literature that
that Plaintiff
Plaintiff believes
believes
establishes the standard of care for aacardiologist regarding finding out that aapatient's relative died
under
under the age of
the age of fifty
fifty years old from
years old from an
an unexplained condition. As
cardiac condition.
unexplained cardiac this Court
As this Court explained
explained to
to
Plaintiff's counsel,
counsel, the established standard of care for a
acardiologist
cardiologist is
is not the same as the standard
of care for aaprimary physician. See 40 P.S.
primary care physician. PS. $§ 1303.512, v. Hecht,
1303.512, see also Wexler • Hecht, A.2d 95
(Pa.Super. 2004(finding
(Pa.Super. 2004)(finding that
that the
the trial court did
trial court did not abuse its
not abuse its discretion
discretion in declining to
in declining hear
to hear
testimony of a
testimony of apodiatrist regarding evidence
podiatrist regarding of an
evidence of an orthopedic
orthopedic surgeon's
surgeon's standard
standard of
of care)
care) and
and
This Court notes that Dr
'This
6 Dr. Gerber also referred to this article in one of his expert reports.
reports
14
evidence established at trial
trial was
was that
that Plaintiff's decedent's brother did not
not die of an "unexplained"
an "unexplained
cause—he died of a
cause--he amyocardial
myocardial infarction, or heart attack.
I
This Court heard and considered extensive argument from Plaintiff's
Plaintiffs counsel regarding his
desire to impeach
impeach Dr.
Dr. Gerber with the Expert Consensus Report on the Diagnosis and Management
of Patients
Patients with
with Inherited
Inherited Arrhythmia
Arrhythmia Symptoms
Symptoms and ruled
ruled that
that this
this impeachment
impeachment was irrelevant
I
and thus inadmissible under Pennsylvania law
law.
COURT:
THE COURT: Let me say, if I'm not mistaken, this is an article that Dr. Gerber indicated
reports and he indicated he relied at least in part
he referred to in one of his reports
upon
upon this report
report in
in forming
forming thethe basis for his opinion. Correct?
MR. TROY:
MR, TROY: Not quite, Your Honor. What he was doing, both Dr. Dr. Gerber and Dr. Hayek
wrote about standard of care in their reports.
reports. And where Gerber mentions
it in his response
response here, he is responding to Hayek about standard of
care. And to be clear, here's the line he is about to read, which is about -—
MR.
MR. ROSS:
ROSS. I'm not going
going to do that. I I know what you're getting at. I'm going to do it in
this fashion, and I I don't think youyou will have an objection to it. First of all, I
I
will show the two definitions here, one, to to show he was wrong in terms of
the definition he gave
gave to the jury
jury yesterday. That's what I'm doing with Items
1
I and 2.
THE COURT:
COURT: About the sudden unexplained death'? death?
MR.
MR. ROSS:
ROSS Correct. That's exactly
exactly right. And then, what I'm going to do is do exactly
what Dr. Hayek
Hayek said, which is, if a a patient like this is referred to me as
a cardiologist, here's what I
a cardiologist, I have to do. So when I I go here, to the point
that you're circling there, Paul, I'm going to say, now, Dr. Hayek has
you're eireling
told this jury, if aapatient
patient with this family history is referred to him as
aacardiologist,
cardiologist, these are the things things he has to do. And he said there are
guidelines
guidelines out there that require
require him, as aa cardiologist, to do these
things.
things. I'm going
going to say
say to the witness, from your vantage point as a a
cardiologist,
cardiologist, when a a SUDS patient comes to you, this is what this
consensus statement says says you
you as the cardiologist have to do. do, And that's
relevant in this case.
THE COURT:
THE. COURT; I
I don't understand the relevance of that because there is no
cardiologist being sued here.
MR.
MR. ROSS:
ROSS The relevance is causation. Because Dr. Hayek says absolutely, 100 percent,
when
when aapatient
patient gets
gets referred
referred to
to me as aacardiologist, I
I have
have to
to do an echo.
That's what this says that the cardiologist has to do. I'm not going to
comment on what the primary
primary care doctors have to do. I'm going to say
to him, you
you as aa cardiologist, they have recommendations in here. In
fact, Dr.
Dr. Beddis said these don't even apply to us. He said these are
cardiology
cardiology things.
things.
15
15
THE COURT: Right.
MR.
MR. ROSS:
ROSS: And
And IIwill say,
say, establish with him that's what has to be done when the patient
is
is sent over there.
there.
THE COURT:
THE COURT: To what end?
MR.
MR. ROSS:
ROSS: What do you mean? mean'?
THE COURT:
THE COURT: What does it matter what a a cardiologist should or should not do?
MR.
MR, ROSS:
ROSS: Because part part of Hayek's
Hayek's opinion is, had the patient been referred to a
opinion a
cardiologist,
cardiologist, an an echo
echo absolutely
absolutely would
would have
have been
been donedone because
because it it has
has to
to be
be
done, under
done, under the guidelines.
guidelines. That's why it's relevant.
why it's relevant.
MR. TROY:
MR. TROY: If
IfIImay,
may, Your Honor, when you look at this that he is about to read, the
premise
premise is, is, if you
you have a a first-degree
first-degree relative who died of SUDS, sudden
unexplained
unexplained death syndrome,syndrome, and the relative should have been sent to aa
cardiologist
cardiologist and should get get this workup, the issue is, we have all seen the
brother's
brother's autopsy
autopsy report
report multiple
multiple times. He did not die of sudden
unexplained
unexplained death syndrome. It was a
death syndrome. a very
very definite diagnosis
diagnosis that
that he hadhad of
6oronary
coronary this and that and the other thing.
THE COURT:
THE COURT: Atherosclerosis
Atherosclerosis disease.
MR. TROY:
MR. TROY- What a cardiologist would do getting
a cardiologist getting aareferral of aarelative of a a SUDS
victim is
victim is of
of no
no bearing,
bearing, moment
moment or or probative
probative value
value to to the jury.
the jury
MR.
MR. ROSS:
ROSS: It is for the reasons I I said. He was
was aa SUDS victim when they were treating
him.
THE COURT-
COURT: Who was?was
MR. ROSS:
MR. ROSS: The brother. He was aa SUDS victim when they were treating him
because they they didn't know what caused his sudden cardiac death. It was
unexplained.
unexplained. I I established that already with Dr. Beddis. That's in his
testimony.
testimony, But we can debate that, on redirect. He can try to establish
he is
he is not
not a a SUDS
SUDS victim.
victim.
THE COURT:
THE COURT: Let
Let me preface,
preface, I I believe both of you are much smarter than than me. My
question
question is
is much
much more
more basic.
basic. My
My question
question is, what
what is
is the
the relevance
relevance_of of
what acardiologist
cardiologist would do when someone is referred to them?
referred_to them7 The
fact
fet of the matter is,
the_matter is, and I I know you're putting up your vour hand,
hand, but
but what
is
is the relevance
relevance what of what a
a cardiologist
cardiologist should or
or should
should not
not do or
or would
would
gr
or would
would_not not dodo when
when a a patient
patient is is referred
referred to to them, since you're
them, since you're not
not
suing
suing thethe cardiologist,
cardiologist, you're
vou're suing the primary
primary care physicians?
MR.
MR. ROSS:
ROSS The relevance is causation. We have to establish, it's our burden to
establish here,
here, if the patient
patient had gone to aacardiologist, she would have
gotten
gotten an echo. That's our burden. That's why this is super relevant. It
is extremely relevant. I
is extremely I have to prove
prove to this jury that if she had gone
to a
a cardiologist
cardiologist she would have gotten an echo. It is part of what
echo.It Imust
what_I_must
prove
prove to
to the fury.
jury, If
If the fury
jury believes,
believes, hev,
hey, if she had gone to aa
cardiologist,
cardiologist, they
they still wouldn't have done an echo, echo, we lose.
lose, This, that is
critical
critical evidence andand it's
it's my
my burden
burden toto establish that
that with
with this
this jury.
jury. And
And
that's exactly
that's exactly what Dr. Hayek
Hayek said. And now I
I can establish with this
witness that what Dr. Hayek
Hayek said is 100 percent correct. Because this is what
the cardiologists need to do. do
16
MR. TROY:
MR. TROY: SUDS is aadiagnosis,
diagnosis. And And we already established with with this
this witness and
another one that SUDS is something a a pathologist does all their work and
says, I
says, I don't know. And it's diagnosed sudden unexplained unexplained death syndrome.
That never happened
happened with Nathaniel Woodard. Woodard. That autopsy report did
reach a a conclusion. The argumentargument counsel is making
making is that my doctors had
not seen that autopsy
autopsy report,
report, therefore somehow that means aadiagnosis of
SUDS. That
SUDS. That idea
idea isis absurd
absurd because what they
because what they were
were told was he
told was he had
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