# Outterbridge, D. v. Abington Memorial Hospital > Superior Court of Pennsylvania · March 28, 2025 URL: https://www.frixlaw.com/law-library/cases/10834679 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** March 28, 2025 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Panella - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10834679 ## Opinion text J-A06023-25 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 DAREN OUTTERBRIDGE, : IN THE SUPERIOR COURT OF INDIVIDUALLY AND AS : PENNSYLVANIA ADMINISTRATOR OF THE ESTATE OF :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 ~ + YHVETTA YHVETTA P. P, OUTTERBRIDGE, deceased: NO.: 00157 -- -tr - •• `rte OUTTERBRIDGE, deceased: ·O Plaintiff, Plaintiff. ~ _ t pr -L, ·n »..,. v, V. SUPERIOR COURT NO. p 2- ABINGTON MEMORIAL HOSPITAL, ABINGTON al: 1261 EDA 2024 .n HOSPITAL, et al T e ,n Defendants. Defendants : :% D c ± n� :%··o 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 had aa heart attack. The realityreality waswas there was an there was an autopsy autopsy report saying he died of coronary — coronary- MS. MS. SHOWALTER: Hypertensive Hypertensive atherosclerosis. MR. TROY: Thank you. you. That's the reality. Even in the world they are in they were told he had a a heart attack. Absent any evidence that these doctors were told he died of SUDS, this has no probative probative value to a jury. a jury, MR. ROSS: It does because, first of all, the definition he just gave of SUDS, the one the witness gave, is witness gave, is wrong. wrong. This document proves proves that that it's it's wrong. wrong. What he he said said yesterday yesterday is incorrect. incorrect. The The definition he gave gave is for SADS, S-A-D-S. S-A-D-S THE COURT: COUT. You You can ask ask himhim that. that MR. MR. ROSS: ROSS: That's where I I started, but IIwant to go go to the point that is being raised here. It's my my burden to show that she absolutely would have gotten an echo had had she she had been been sent to to aa cardiologist. THE COURT: THE COURT: If f her first-generation first-generation relative died and the diagnosis was SUDS? MR. MR. ROSS: ROSS: Correct. COURT: THE COURT; Which wasn't the case. MR. MR. ROSS: ROSS: It was the case. case. It absolutely was the case. Here, if you look at the definition of SUDS, here it is that an unexplained death occurring in an individual older than one older than one year year of of age age is is known known as as sudden sudden unexplained death syndrome. unexplained death syndrome SUDS. That's That's him. him. THE COURT: THE COURT: But But it wasn't wasn't unexplained. unexplained MR. MR. ROSS: ROSS: It was. There There was no explanation for what no explanation what caused his MI. If you you look look at the the chapter here chapter here -- -- THE COURT: THE COURT: Correct Correet me if I'm wrong. wrong. There was no explanation at the time that the primary primary care care physicians physicians -- of what - of what caused caused his his heart attack. But heart attack. But he died he died of aaheart attack. MR. MR. ROSS: ROSS II know. This article actually deals with that scenario. It's saying for people people who die of a a cardiac cause, unexplained cardiac death, that's where where theythey start in in the the article. THE COURT: THE COURT: Let me ask you you this. Someone who dies of aaheart attack fits the category of someone who dies an unexplainedunexplained cardiac event. MR. MR. ROSS: ROSS: Yes. Yes. Absolutely, Absolutely, if if you you look look at at the article, article, it it makes makes it clear that it clear that is is true. true THE COURT THE COURT: Being Being aajudge, judge, I I think that is illogical. If they say, my grandfather, if someone in the family family died of aaheart attack, what did he die of, he died of aaheart attack. What did he die of, I I don't know, something that that can't be explained, isn't that two different things? I'm asking you. explained, MR. ROSS MR. ROSS: In this situation, it's not. Because what they are saying here is, they are saying, listen, we are talking saying, talking about everybody who dies of aa cardiac condition. This entire entire section is is dealing dealing with with everybody who who dies dies of aa 17 17 cardiac cardiac condition. He died of an MI. ML. That's the information that they received. received THE COURT: Right. Right MR. MR. ROSS: ROSS: That's where this starts. He fits in this category. category. He was someone who died of what of what they they called called a a sudden cardiac death. death. He died of He of an an MI suddenly. So So he he fits fits there, there, for starters. Number two, for starters. two, if you you don't have an explanation for the the cardiac cardiac death that the person person suffered, you you are aaSUDS. That's what this says. says. By By the the way, way, if if they they disagree disagree with with that, that, they they can can makemake that that disagreement with the jury. That goes disagreement with the jury. That goes to the weight to the weight and sufficiency. sufficiency. THE COURT: THE COURT Do you you want to respond? MR. TROY: MR, TROY It's sudden unexplained unexplained death, not sudden unexplained MI, MI, or sudden unexplained unexplained hypertrophic cardiomyopathy. 'There hypertrophie cardiomyopathy, There was a a cause of death for the brother in reality reality and there was a a cause of death for the brother explained explained to to these these physicians. physicians. It'sIt's not not of of probative probative valuevalue to to the the jury. jury. It's adifferent topic. different MR. MR. ROSS: ROSS: Look at the title. Unexplained Unexplained sudden cardiac death right up here. Unexplained Unexplained sudden cardiac death. That's what he had. Unexplained sudden cardiac death. MR. MR. TROY: TROY: There are lots of cardiac deaths that they can't figure out what did it. Nathaniel Woodard's pathologist pathologist did figure out what did it and the family family told the doctors — - THE COURT: THE COURT: My My understanding understanding from the autopsy was that he died of hypertensive and coronary atherosclerotic and coronary atheroselerotie disease. He had plaque in his arteries such that his arteries were occluded up to 50 percent. Correct? MR. MR. ROSS: ROSS Yes. THE THE COURT: COURT: That is not unexplained. MR. MR. ROSS: ROSS They didn't know it at the time. They didn't have the autopsy. They autopsy. That is the whole point.point. They They didn't have the autopsy.autopsy MR. TROY: MR. TROY: That he had MI. ML. They had myocardial infarct. MR. ROSS: MR. ROSS: The whole point point of that is, they did not have the autopsy. It was unexplained unexplained to them. I I went through this with Dr. Dr. Beddis. I I have his testimony testimony on it. He actually said it was unexplained, and if they had on it. He actually said it was unexplained, and if they had ---- let let me me finish. finish. If If they they have a contrary argument a contrary argument to to this, this, they they can raiseraise itit with with the the jury. I'm hearing jury. hearing no reason why they can't raise a contrary -- a contrary -- this witness, by by the way, way, he can disagree. disagree. He can say this is not SUDS. Because I'm going to ask him to ask him at at the end of the end of the the day, day, if if it it is SUDS, an is SUDS, an echo echo is is required. required. But But I'm I'm entitled entitled to read the definition of SUDS and say to him, if it's SUDS, an echo is is required. required. Because my expert has said it's my expert it's SUDS. SUDS. He He can can disagree. He He can say say it's not SUDS. SUDS. But I'm entitled to establish with him. THE THE COURT: COURT: What is the questionquestion you propose to ask this witness? MR. MR. ROSS: ROSS: The first couple The couple of questions questions I'm going to do is I'm going to read the definition of SUDS and of SADS. THE COURT: THE COURT: From this article? MR. ROSS: MR. ROSS: From this article. artiele. It's right right there, one and two. I I will read those definitions. I I will will establish establish what what SUDS is is and and then I'm I'm going to to say to to him, him, if if in in fact fact the the brother's brother's death fits under SUDS, according to the article, according to this 18 article, a article, acardiologist cardiologist would be required, required, then, to to do an echo. That's going to to be mymy question. question. By By the way, way, if youyou want me to, I I will even ask him, do you you believe it fits under SUDS? He can say say whatever wants. I he wants. care. I don't care My My expert expert has has aadifferent opinion. opinion. He He says it it does fitfit under under SUDS. I'm I'm entitled to say, say, if, if in fact his death fits under SUDS, aacardiologist is required required by this, IIwill read exactly by this, exactly what it says, that requires a a cardiologist to to do an an echo echo. MR. TROY: MR. TROY: Counsel's position position is that when something is not probative and not relevant, he can use use it anyway anyway and the witness can then say say it's not relevant. That's That's why, why, thank goodness, goodness, we have a a gatekeeper. gatekeeper. It is undisputed undisputed that what these doctors werewere told is he died of an MI. MI. There 'There was aacause of death. The issue is not whether there was was a a known cause of the MI. ML. For them to make that argument would be to say that every time a argument adoctor doesn't have an autopsy report report of afirst-degree a first-degree relative it's a a SUDS case. case THE COURT: THE COURT: And And he he should should send,send, the the primary care physician primary care physician shouldshould send send the first-degree the first-degree relative for an echocardiogram. echocardiogram TROY: MR. TROY- He wants to use that, and it's of no relevance, number one, and then, number two two -- enough. It's not connected -- that's enough. connected. MR. MR. ROSS: ROSS: things, Judge. Two things, Judge. Number Number one, Dr. Dr Hayek Hayek said his death fits fits the the definition of SUDS. And as as aaSUDS death, if the patient is sent to him, he is required to do an echo. echo. 'That That came rightright out of his mouth from from the witness stand. THE COURT: THE COURT: I I heard enough enough for both. What I I will do is sustain the objection, but I I will allow you you to ask this witness if he believes that the death of the brother fits the definition of SUDS. MR. MR. ROSS: ROSS: I I know what he's going going to say.say. He's going to say no. THE COURT: THE COURT: Then the question question is not relevant. MR. ROSS: MR. ROSS: Why Why can't I I impeach impeach him? I I have an article that impeaches that. This article literally artiele literally impeaches impeaches that. He is is allowed to say that and I'm not allowed to to impeach impeach him? He He raised raised it. He He actually raised raised it it in in his his testimony yesterday. yesterday, MR. TROY: MR. TROY: What What he said in in his his testimony testimony was was thatthat Mrs. Outterbridge, not her her brother; brother; if the autopsy autopsy was done properly, properly, it would have ended up as aa sudden unexplained unexplained death, death. This is different. This is is saying the brother was a, or they they are trying trying to argue, the brother was a a sudden unexplained unexplained death, when my my doctors had an explanation that the death was caused by by an MI. THE THE COURT: COURT: I I will sustain the objection. I I will allow you you to ask that question. If he says no, I says I want you to move on. MR. MR. ROSS: ROSS: Can I I perfect perfect what my position is? THE COURT: Yes. Yes MR. MR. ROSS: ROSS: Thank Thank you.you, So for causation purposes, purposes, I I have an expert who has said the brother's death is consistent with SUDS, as it is defined by this consensus statement of experts, and that if aacardiologist receives aapatient who has aa first-degree first-degree relative that fits the category of SUDS, aacardiologist must, according to this expert according expert has so testified to that and now IIwant to corroborate it with a adefense expert. expert. Not only that, I I want to show that the defense 19 expert's definition expert's definition is incorrect. And is incorrect, then I And then want to I want corroborate with to corroborate with a a defense defense expert expert that if in fact the brother's death meets the criteria of SUDS, and there's and there's aadispute dispute on that in this case, I'm then entitled to to cross-examine this this witness witness and I I want want to to cross-examine this this witness witness to prove indeed indeed it it fits fits the the definition definition of SUDS. And if so, if he is a a SUDS victim, then the recommendation recommendation to to the cardiologist is, the cardiologist is, you you have have to to do do an echo. echo. IIunderstand understand Your Honor's ruling. ruling. I I have made my record. (Resuming back (Resuming back in open court.) in open court.) N.T. N.T. Feb. Feb. 28, 2024 AM, P. P. 36-51. While While it it is certainly proper is certainly proper to to impeach an expert impeach an expert witness witness with with a a treatise treatise or or other other form form of of authenticated authenticated literature literature when when the expert expert in the field attests to expert or another expert to the publication's reliability, reliability, that that impeachment impeachment must still be relevant to the issue before the Court. Charlton v. • Troy, 2020 PA 2020 Super 170, PA Super 236 A.3d 170, 236 22 (2020), A.34 22 02020), see J.S. • see J.S, v. Whetzel, 860 A.2d Whetzel, 860 A.2d 1112 1112 (holding (holding that "aparty that a party may may impeach impeach an expert expert witness... witness... [but] inquiry must nevertheless be relevant to the main issue [but] this inquiry court. "). before the court."). A A fundamental and irreconcilable flaw with Plaintiff fundamental and s desire to use Plaintiff's use "standard literature" in the field in the of cardiology field of cardiology is that the standard of care for what aacardiologist would do is not relevant to what aaprimary to what care physician primary care physician would do and is not binding on aaprimary care physician. Here, whether whether an an expert expert cardiologist cardiologist believed believed that that Mrs. Mrs. Outterbridge needed needed an echocardiogram and whether the "standard whether the "standard of care" required required aacardiologist cardiologist who knew of a a recent familial death due to an "unknown an cause"' to send a unknown cardiac cause" a patient patient for an echocardiogram was not relevant to the ultimate matter before ultimate matter before the Court Court which was whether whether the the defendant family family care physicians physicians breached breached their standard of care in not referring their standard referring Mrs. Outterbridge to to aacardiologist. 7Mrs. Outterbridge's Mrs. Outterbridge's brothers brothers cause of death was not of an an "unknown cardiac cause" as Plaintiff contended. contended. His, His death certificated listed death certificated listed his cause of his cause of death death as atherosclerotic disease. as atherosclerotic disease. 20 Accordingly, Accordingly, it is respectfully respectfully requested requested that this Court's determination that neither Dr. Gerber nor Gerber nor Dr. Dr. Beddis could be questioned Beddis could questioned regarding an article regarding an article that was precluded that was precluded due due to to proper proper application of the Pennsylvania application Pennsylvania Rules of Evidence be affirmed on appeal. In In his his second second issue issue on appeal, Plaintiff on appeal, argues that Plaintiff argues that the the Defendants Defendants were were improperly improperly permitted permitted to cite the actions of medical providers providers who treated Mrs. Outterbridge and did not refer her to a cardiologist as evidence that the Defendant primary care physicians met their standard of a cardiologist care in also not referring referring Mrs. Outterbridge Outterbridge to acardiologist, but that this Court erroneously to a precluded precluded Plaintiff from questioning questioning Mrs. Outterbridge's treating gynecologist regarding whether expected a she expected a primary primary care doctor to refer Mrs. Outterbridge to aacardiologist. In aamedical malpractice malpractice action, aatreating doctor may only testify as to his or her own experience without being experience being presented presented as an expert witness. Lykes v. • Yates, 77 A.3d 27 27 (Super. Pa. (Super. Pa 2013). 2013). See also Brady See also Brady v. v. Ballay, Ballay, Thornton, Thorton, Maloney Maloney Medical Medical Assocs., Assocs., Inc., Inc., 704 704 A.2d A.24 1076, 1076, 1082 1082 (Pa. Super. 1997), appeal (Pa.Super.1997), 738,725 appeal denied, 555 Pa. 738, 725 A.2d 1217 1217 ((1998)("[A] 1998) ("[A] physician who is also a a defendant may defendant may testify as a testify as afact witness on fact witness on his own behalf... his own so long behalf ... so long as as those opinions or those opinions or inferences inferences are rationally rationally based on the witness's perceptions perceptions and helpful helpful to to aaclear understanding of his or her testimony. "). testimony."). Defendants Defendants were were properly properly permitted permitted by by this this Court Court to to question the the defendants and the plaintiff's plaintiffs decedent's treating treating physicians physicians regarding actions that they did or did not take, and Plaintiffs were properly precluded from asking Dr. Lambert's properly precluded Lambert's"8opinion as to what she would expect aadoctor in in aadifferent medical medical specialty to do, as this Court found specialty to found her her expectation to to be an opinion 8In addition to le addition to Dr. Thomas-Mabine, Thomas-Mabine, Dr. Dr. Lambert also also rendered rendered gynecologic care to gynecologic care to Plaintiffs Plaintiff sdecedent decedent Mrs. Mrs. Outterbridge. 21 21 and she was not and she qualified by not qualified by this Court to this Court to give give aastandard standard of care opinion of care opinion for for aaprimary care primary care physician. physician. questioning and opinion The line of questioning opinion elicited by by Dr. Lambert was as follows: Q: "And Q: from what "And from we did what we did look at, there look at, there is nothing that is nothing that would would suggest suggest that you send that you send her her for cardiology workup. for cardiology workup. IsIs that that right?" right?" A: " Yes." A. "Yes." Q: ""Would Q: Would it be your expectation that if a your expectation apatient patient needs aa workup workup with a a cardiologist that's that's something something the the primary or family primary or medicine doctor family medicine doctor would send the would send the patient patient for?" for?" A: A: "yes." Yes." N.T. NT. Feb. 16, 2024, Feb. 16, P. 23-24, 2024,P. 23-24, L.3 24-8. 9 L.3 24-8.° Plaintiff's counsel relentlessly Plaintiffs counsel relentlessly reiterated reiterated to to this Court that this Count that Dr. Lamber's Lamber's expectation expectation of of what a what a primary care doctor primary care doctor would do when wold do when presented with a presented with apatient patient who who "needs "needs aacardiology cardiology workup" is neither an opinion workup" opinion nor aastandard of care opinion opinion but instead relates directly to the defense of the defendants who specified specified that Doctor Lambert did not refer Mrs. Outterbridge to aa cardiologist. Plaintiff asserted that Dr. Lambert's response cardiologist. response related directly to why she did not refer Mrs. Outterbridge to Mrs. Outterbridge to a cardiologist. The Court explained: a cardiologist. THE COURT THE COURT: Mr. Ross, Ross, this is not aaquestion question of, did you you expect expect the primary physician to refer for cardiology care physician cardiology workup. If that was the question, that would be fine. question, MR. MR. ROSS: ROSS: That's exactly the That's question. the question. COURT: THE COURT: No, it's not the question. question. Let me talk. My My God. It is saying strictly, says, and this is what it says, "Would it be your expectation that if aapatient needs aa workup workup with aacardiologist cardiologist --" --" that is something something --- not that II found she does found she does need need aaworkup workup with a acardiologist, cardiologist, but but I expected her I expected her primary primary care physician physician to do that. It's an opinion opinion as to an event that may may or may may not happen in general, happen general, not specific specific to this case. So my ruling is ruling is my my ruling. Thank you. ruling. 'Thank you N.T. N.T Feb. Feb. 16, 2024, P. 28, L. L. 15-25, P. 29, L. 1-7. 15-25,P.29,L. Defendants objected Defendants 9 objected to line designation of Dr. Dr. Lambert's testimony page 4 44 lines 19 to t0 23. 22 I Plaintiff's Plaintiffs counsel re-iterated his point point and view of the question and answer of Dr. Lambert: MR. MR. ROSS: ROSS. Judge, I'm Judge, sorry, I I'm sonry, don't want I don't want to cut you to cut you off off-— THE COURT: Go ahead. ROSS: MR. ROSS: -- actually actually said exactly what you you said you would allow, which is, if the patient needs the patient needs aacardiology cardiology workup, workup, that she would that she expect family would expect family medicine to take care of it. And we have talked here in this case and Dr. Ash Ash has has testified that this testified that this is is aa team approach, when team approach, when various various people people are taking taking care of the patient. patient. And he has said, those people things. They don't do those things. They expect expect primary primary care to to handle handle it. And And he said primary said should handle primary care should handle it.it. This This is directly to is directly to that point. that point Now, Now, if if she she were say, under were to say, the standard under the standard of care, primary of care, care has primary care has to handle those things, things, IIwould understand. understand. That That is an opinion. opinion. She is is not not saying saying under under the care. She is the standard of care. is simply simply saying saying it's it's her her expectation. expectation. I'm I'm not going going to to handle handle that. They are. THE COURT: Okay. Do you you want to respond? MS. SHOWALTER: I I stand by by my my initial objection that an expectationexpectation is is an opinion. opinion. She is being being asked, what does she expect a expeet a primary care's job job to do. She is not a a primary primary care physician. physician. She is a is a gynecologist. gynecologist. She is is being being asked what the standard of care is for a a primary primary care care doctor doctor if if the patient needs the patient needs toto he seen by be seen by aa cardiologist. cardiologist. I I stand by by my my objection. objection. She is not aaprimary care doctor and can't render that opinion. opinion. MR. ROSS: ROSS: I I would say, Your would say, Honor, she Your Honor, she is is part of this part of this team. team. They need to They all need to know what the know what expectation is. the expectation All the is. All doctors who the doctors who are on on the the team. team. And And the point that the point that she is making making herehere is,is, no, no, not not me. me. I I expect expect primary primary medicine is is going going to handle that. THE COURT: THE COURT: If f that's what she said, I I would allow it, Mr. Ross. Ross, That's not what what sheshe said. said. She She is asking asking in general. Do in general. Do you you want want to say to say something? something? MR. ROSS: And it goes to the very very heart of this case.case. If we are not allowed to defend defend it -- how how do I argue, when I argue, when I get up I get up in the the closing after after defense counsel has said now already,already, maybe maybe 30 times, this doctor and no other doctor referred other doctor referred her. To get her. To get to stand stand upup inin my opening and say, my opening say, that's because they they expect primary primary care to to do it. THE COURT: TIIECOURT Sure, because that's the opinion of Dr. Ash, who was was called as an expert and gave expert gave his opinions. opinions. MR. ROSS: ROSS: Say that again again. COURT: THE COURT You can argue that because that's the opinion that Dr. Ash gave, as aastandard of care for aaprimary primary care physician. physician. Yes, you can argue that. that. 23 23 MR. MR. ROSS: ROSS Here is the thing, thing, Judge. Judge. I I have an expert who they can say, don't believe their expert. I their expert. I have have it out of the the mouth of the the very very doctor. I I have it right right out of the mouth of the very very doctor. And it's consistent 100 percent percent with what Dr. Dr. Ash said. For me now not to be able to corroborate that with the exact testimony of the doctor, it is his opinion that opinion that the expectation is the expectation is that that primary primary medicine medicine would handle would handle it. Now Now I I have direct evidence have direct evidence from from thethe very doctor who very doctor who they say they say didn't refer didn't refer the the patient patient who says the who says same thing the same as Dr. Ash thing as Ash. Therefore, it's no basis whatsoever for me not to be able to corroborate that. None. None THE THE COURT: COURT: There is a away way the question question could have been asked which would have been unobjectionable. unobjectionable. It wasn't asked in that fashion and I I sustained the objection. objection. Please lease let's move on on. N.T. N.T. Feb. 2024, P. 29-32. Feb. 16, 2024,P.29-32 THE COURT THE COURT: If question, again, If the question, again, would would have have been, if you been,if vou think think she she needed a a workup workup by by aa cardiologist, cardiologist, why didn't you why didn't refer her you refer her to to a a cardiologist, cardiologist, and then if she would have responded to the question, that would be okay. Id., P. 34,L. Id.,P. 34, L. 17-22. 17-22. Plaintiff did not proffer proffer Dr. Lambert as an expert witness and phrased his question to her in aaway way that exceeded the scope scope permissible permissible for her testimony as as aatreating physician. Defendant objected and this Court properly objected properly precluded precluded Plaintiff from eliciting this testimony. In his third issue complained complained of on appeal, Plaintiff argues that this Court improperly denied his request request to include Abbington Abbington Memorial Hospital on the verdict sheet because there was evidence presented against it where the jury presented against jury could have imputed negligence to Abington Memorial Hospital Hospital for for the actions of the actions of its clerical staff. its clerical staff. Dr. Dr. Beddis Beddis testified testified that that he could not he could say that not say he ever that he ever saw Mrs. Outerbridge's saw Outerbridge's murmur classified as murmur classified as a a grade grade three murmur because three murmur because he did not he did not hear hear it as it as that and did not not see documents from from aaGI specialist specialist who did hear hear her murmur and classified it it as Grade 3, which was faxed to his office by by aa hematologist. hematologist. N.T. Feb. Feb. 26, 2024, P. P, 74 -77. .77, Accordingly, Plaintiff Accordingly, contended that Plaintiff contended that he was was entitled to argue entitled to argue to to the jury the the jury the hospital hospital was, either was either J negligent on behalf of the doctors if the documents were put into the bucket and the doctors negligent 24 24 overlooked them or just overlooked just did not see them or negligent negligent on behalf of their staff if the documents were not brought brought to the doctor's attention. attention. N.T. Mar. 6, 2024,P. 2024, P. 4-5. 4-5, Contrary Contrary to Plaintiffs Plaintiff's contention, this Court was proper in denying Plaintiff's request because because there there was aaprofound profound lack of evidence against Abington's clerical staff making inclusion on these these grounds grounds improper improper and individual defendants already listed on the verdict sheet were employees employees or agents Abington, meaning agents of Abington, any verdict meaning any verdict could be molded could be molded against Abington Abington as well. well. Further, Further, Dr. Shorten, Dr. Weiss, Dr Shorten, Weiss, and Dr. Beddis— Beddis the the defendant defendant primary care doctors primary care doctors at at Wyncote Wyncote Family Family Hospital— Hospital were employees and/or were all employees and/or agents agents of of Abington Memorial Memorial Hospital. Hospital. N.T. Mar. 1, 2024, P. 9-10 L.15-4. Accordingly, any determination of liability against any of the 1, 2024,P. three defendants would have allowed for aaverdict against Abington Memorial Hospital. The Appellant Appellant (Plaintiff) (Plaintiff) in Seels v. , Tenet Health System Hahnemann, LLC., LLC,, 2027 PA Super 227, 167 A.3d 167 A.3d 190, 208 -09 (2017) 190, 208.-09 (2017) made the the same argument and same argument and the the Superior Court characterized it as as "absurd on its face." In Seels, the appellant argued absurd argued "that the jury verdict form was defective in that it it did not include other staff and agents agents working at Hahnemann Hospital caring for for [the Plaintiff Plaintiffss decedent] during decedent] during the relevant time such as nursing staff, other professionals, and residents who committed negligence." committed Superior Court found the argument without merit when named negligence." The Superior defendant doctors were operating operating as agents agents of the hospital and accordingly the hospital was vicariously liable for their acts and counsel failed to identify in anything more than vague terms vicariously any any other agents agents or employees employees who should have been named on the verdict sheet. Id. Including Including Abington Abington Memorial Hospital Hospital on the verdict sheet for negligence of its clerical staff, when there was no evidence offered to support the claim its staff was negligent, would have staff, been erroneous. Testimony been erroneous. Testimony was never offered to support the conclusion that the staff was 25 25 negligent, but negligent, instead was but instead mentioned in was mentioned comment of in comment how the of how office functioned the office functioned and and accordingly, accordingly, it it is respectfully requested that respectfully requested Superior Court agree that the Superior agree with this Court on appeal. In his fourth issue on appeal, appeal, Plaintiff alleges alleges that this Court improperly granted Defendants Abington Defendants Abington Memorial Memorial Hospital, Suzzane Shorten, Hospital, Suzzane Shorten, M.D., M.D., Kenneth S. Weiss, Kenneth 8. Weiss, D.O., D.O., Brent Brent C. Beddis, C. D.O., and Beddis, D.O., and Katie Garrelts, M.D.'s Katie Garrelts, M.D.'s Motion Motion in Limine to to Preclude Preclude Reference Reference to to Alleged Alleged Drug Use, Drug Use, filed under control number 23124751. 23 12475 1. Superior Court has articulated that it follows an evidentiary abuse of discretion The Superior standard of review for evaluating evaluating the grant grant or denial of aamotion in limine. Commonwealth v. • Belani, Belani, 101 101 A.3d 1156, 1160 A.3d 1156, 1160 (Pa.Super. 2014). A (Pa.Super. 2014). A trial court court has broad discretion has broad discretion to determine to determine whether evidence is admissible, and a atrial court's ruling regarding the admission of evidence will not not be disturbed on appeal appeal unless unless that that ruling ruling reflects manifest manifest unreasonableness, unreasonableness, or partiality, partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous. prejudice, bias, erroneous. Id. If the evidentiary question is question is purely purely one of law, law, the Superior Court's review the Superior review is is plenary. plenary. Id. Id At the the time evaluation, Dr. Weiss was time of evaluation, was uncertain uncertain about whether Mrs. Mrs. Outterbridge's brother brother had used drugs drugs and/or died of an overdose. When expert testimony amounts to "mere speculation," speculation," meaning meaning that there is no formal offer of proof, it is proper to exclude said testimony altogether. altogether. See Chiorazzi v. • Com. Dept. ofHighways, Dept. of Higlways, 192 A.2d 400 400 (Pa. Super. 1963) (Pa. Super, 1963) (citing (citing Earl Ear M. Kerstetter, Kerstetter, Inc. v. Dept. of • Com. Dept. of Highways, 171 A.2d 163 Highways, 71 163 (PA. (PA. 1961)). 1961)). Additionally, "expert testimony testimony is incompetent incompetent if it lacks adequate adequate basis in fact." Gillingham v. • Consol Energy, Inc., Inc. 2012 PA 2012 PA Super 133, 51 Super 133, 51 A.3d 841 (2012). A.3d 841 Courts also (2012). Courts also look look to to the the substance of expert substance of expert testimony testimony to determine whether whether his his opinions opinions were were based based on a a reasonable reasonable degree of medical medical certainty rather than upon upon mere speculation. Commonwealth • mere speculation. v. Baez, Bae, 720 A.2d 728 ((1998). A.24 711, 728 1998). 26 Dr. Weiss' speculation speculation of whether Mrs. Outterbridge's brother Mrs. Outterbridge's brother used used drugs does does not not amount to an adequate Outterbridge's brother was adequate basis in fact that Mrs. Outterbridge's was a a drug "I drug user. Dr. Weiss stated "I did not know the circumstances of her brother's death. [...] [... ]So that was taken into account, but we surrounding circumstances, were there drugs involved, was there substance abuse." don't know the surrounding Dr. Weiss Weiss asserted that that he did not he did know the not know circumstances of the circumstances of her her brother's death, making brother's death, any making any testimony surrounding her testimony surrounding her brother's drug use brother's drug speculative in use speculative in nature nature and therefore therefore properly properly precluded. precluded. In his fifth issue on appeal, appeal, Plaintiff contends that his motion in limine to preclude Mr. Mr Outterbridge's continued treatment by Outterbridge's by Wyncote, Wyncote, filed under control number 23124669, was was improperly denied. This Court denied Plaintiffs improperly Plaintiff's motion because the amount of time that Mr. Outterbridge spent Outterbridge spent treating treating at Wyncote Wyncote Family Hospital, specifically seeing Dr. Beddis, is relevant to his credibility credibility after he testified in his deposition that he lost confidence in the practice following his his wife's wife's death. As stated previously, Pennsylvania Rule of Evidence 402 provides that, generally, "[a]ll previously, Pennsylvania relevant evidence is admissible" and and "[e]vidence "[e]vidence that is not relevant is not admissible." Pa.R.E. 402. Relevant Relevant evidence evidence is is that which has that which has "any "any tendency tendency to to make make aafact more or fact more or less less probable probable than than it would be without the evidence[,] evidence[,] and the fact is of consequence in determining the action." 401(a), (b). Pa.R.E. 401(a), (b). Thus, our rules preclude preclude testimony and evidence if it "does not tend to prove disprove aamaterial fact in issue, or disprove issue, or to make such aafact more or less probable, or if it does not f afford the basis for aalogical ' logical or reasonable inference or presumption presumption as to the existence of aamaterial fact in issue." Commonwealth v. Thompson, Thompson, 779 A.2d 1195,1200-01 779 A.24 1195, 1200--01 (Pa.Super. 200 1) (quotation (Pa.Super. 2001) marks, quotation, marks, quotation, and citation omitted). omitted). Commonwealth v. Gill, 2017 2017 PA Super 80, 158 A.3d 719, 725-26 725-26 (2017), (2017), judgment part, vacated judgment rev'd in part, vacated in in part., 651 Pa. part, 651 520, 206 Pa. 520, 206 A.3d 459 (2019). A.3d 459 (2019). 27 27 Additionally, absent abuse Additionally, absent abuse of discretion, it of discretion, it is is the sole responsibility the sole of the responsibility of the trial court to trial court to probative value of the offer and ensure it determine the probative it is not outweighed by the risk that its admission will create undue prejudice. prejudice. Keough v. Republic Fuel and Burner Co., 1H6 116 A.2d 67 671 (Pa. 1961). (Pa. 1961). During During trial, Plaintiff argued that he lost faith in Wyncote Family Hospital after his his wife's passing wife's but Mr. passing but Outterbridge continued Mr. Outterbridge continued treatment treatment there there for two years for two years following following the filling the filling of this lawsuit. As a a testifying testifying parry, party, Mr. Outterbridge's credibility is in issue, which is critical to the jury's jury's determination of liability. liability. The fact that Mr. Outterbridge continued treatment with his late wife's primary primary care doctor is is a a clear contradiction of his statement that he he lost faith faith in in the the practice practice and has great great probative probative value to his mindset or the veracity of his statement. This This Court's denial of Plaintiff Plaintiffss motion in limine was proper, proper, new trial should not be granted on this issue on appeal. appeal. It is for the aforementioned reasons that this Court respectfully requests the Superior Court affirm Court affirm its decisions on its decisions on Plaintiff's Plaintiffs issues on appeal. issues on appeal. BY THE COURT: 28 -------------------- Certificate of Service On this date, the 12th day On day of September, 2024, a a true and correct copy of the attached 1925(a) Opinion was filed Opinion by this Court with the Civil Appeals filed by Appeals Unit Unit for service upon upon all attorneys of record via the Court's electronic filing filing system. ,J. ANG 6'i 11 ' O A' - A --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10834679. Public record. Not legal advice.