Galli, N. v. Odenigbo, V.

J-A06022-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

NICHOLAS GALLI : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

ROBERT SATALOFF, M.D., ROBERT : No. 583 EDA 2024

SATALOFF, M.D. AND ASSOCIATES, :

VINCENT ODENIGBO, M.D., AND :

DREXEL UNIVERSITY :

Appeal from the Judgment Entered January 30, 2024

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 201102018

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E. *

MEMORANDUM BY PANELLA, P.J.E.: FILED SEPTEMBER 10, 2025

In this medical malpractice case, Nicholas Galli appeals from the entry

of judgment on the jury verdict in favor of Vincent Odenigbo, M.D. Galli claims

the trial court committed numerous errors. Notably, Galli argues that he was

unable to adequately rebut defense expert testimony that went outside of the

fair scope of the expert report, in violation of Pennsylvania Rule of Civil

Procedure 4003.5(c). After careful consideration, we affirm.

Galli frequently got papillomas in his airway and had 19 previous

procedures to remove them. For close to 20 years, over half of the operations

were performed by his otolaryngologist (i.e., ear, nose and throat doctor),

Robert Sataloff, M.D. On November 26, 2018, Galli saw Dr. Sataloff at

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* Former Justice specially assigned to the Superior Court.

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Hahnemann Hospital to remove papillomas from his subglottis. Dr. Odenigbo,

was the anesthesiologist for the procedure. This was the first time Dr.

Odenigbo treated Galli. There was no dispute among the parties regarding the

pre-operation and surgical procedures.

The pre-operation intubation was performed by the anesthesia resident

Irum Khan, M.D., under the supervision of Dr. Odenigbo. This intubation was

performed with an endotracheal tube (“ETT”) advanced into Galli’s airway with

a metal stylet and under direct visualization with a solid curved “McGrath”

laryngoscope.1 The pre-operation intubation was completed without incident.

Dr. Sataloff performed the papilloma removal procedure. He used a

special hollow straight laryngoscope (that he invented) and passed a micro

shaver through the hollow lumen of the laryngoscope to shave the papilloma.

He could not visualize the papilloma with the ETT in place. Thus, Dr. Sataloff

performed the procedure apneic, meaning Galli’s ETT was removed and Dr.

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1 Resolving the issues in this case requires a brief understanding of the

intubation process. We commend the parties for educating the Court with

materials to accomplish this endeavor. Intubation involves the insertion of a

flexible plastic ETT into a patient’s airway to allow the passage of air. A

laryngoscope is frequently used to help the provider visualize the larynx and

guide the ETT through the airway. A laryngoscope is “an instrument rather

like a large tongue depressor on a handle, which allows the physician a direct

view of the glottis[.]” 4 Attorneys Medical Advisor § 33:26. A stylet is

sometimes used to help guide the ETT through the patient’s airway. A stylet

is either a rigid or malleable metal rod that is inserted into the ETT to stiffen

the ETT and facilitate greater control. See Stephanie C. DeMasi, et al.,

Evidence-based Emergency Tracheal Intubation, 211(7) Am. J. Respir. Crit.

Care Med. 1156, 1160 (2025). Once the ETT is in place the stylet is removed

from the ETT.

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Sataloff periodically reintubated Galli when his oxygen levels dropped below a

certain level. Dr. Sataloff reintubated Galli numerous times by inserting the

ETT through the inside hollow lumen of his laryngoscope without using a metal

stylet. Dr. Sataloff successfully removed the papilloma and did not observe

any injury to Galli’s airway during the procedure.

Dr. Odenigbo monitored Galli after the procedure. As explained in

further detail below, the parties disputed the post-operation proceedings.

Initially, the dispute centered around whether Dr. Odenigbo used a metal

stylet when he performed a post-operation reintubation. However, later at

trial Dr. Odenigbo testified that he never reintubated Galli after the procedure.

The following day, Galli returned to the hospital and was admitted due

to discomfort in his throat when breathing and swallowing. It was discovered

that Galli had an opening in his posterior tracheal wall. Galli remained at the

hospital for nearly three weeks during which he had to be fed with a Dobhoff

tube. After he was discharged, he needed a stomach feeding tube for nearly

four months. Even after the feeding tube was removed, Galli still had difficulty

swallowing and could only eat soft foods. Galli was weak and lost weight; he

was able to return to work and travel but resumed only limited pre-injury

activities.

On November 23, 2020, Galli commenced a civil action against Dr.

Sataloff, Robert Sataloff, M.D. & Associates, and Dr. Odenigbo. On May 13,

2021, a judgment of non pros was entered against Galli as to all claims against

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Dr. Sataloff and Robert Sataloff, M.D. & Associates. The parties engaged in

pretrial discovery and took depositions.

At his deposition, although he could not recall the specifics of the

surgery and the post-operation care, Dr. Odenigbo testified that he performed

an intubation at the end of the procedure and did not cause an injury to Galli.

See Depo., 8/30/22, at 84-86, 101-02, 106, 129-30. Dr. Sataloff was deposed

a few months later. He testified that he performed the final intubation, not Dr.

Odenigbo. See Depo., 11/8/22, at 49-50.

Next, the parties each produced two expert reports in support of their

position. Galli’s two expert reports were prepared by Alan David Kaye, M.D.,

Ph.D., an anesthesiologist, and David Greene, M.D., an otolaryngologist. Dr.

Kaye and Dr. Greene’s reports stated that Galli’s airway injury was caused by

the post-operation intubation performed by Dr. Odenigbo. Additionally, Dr.

Kaye opined that the airway injury was likely caused by a metal stylet that

went beyond the tip of the ETT.

Dr. Odenigbo’s two expert reports were prepared by Mark Etter, M.D.,

an anesthesiologist, and Bert O’Malley, Jr., M.D., an otolaryngologist. Dr. Etter

opined that Dr. Odenigbo reintubated Galli prior to the end of the procedure

but the assertion that he used a stylet that extended past the ETT was

completely speculative. Instead, Dr. Etter opined that Dr. Odenigbo’s

reintubation could not have caused the injury because Dr. Odenigbo

reintubated Galli by inserting the ETT inside an already in place rigid

laryngoscope. Dr. O’Malley opined that Dr. Odenigbo did the initial pre-

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operation intubation and final extubation. Further, he opined that Galli’s

airway injury could have been caused by a preexisting fistula from one of

Galli’s numerous other procedures or due to Dr. Sataloff’s procedure. A few

weeks before trial commenced, each expert issued a supplemental expert

report responding to the opposing expert reports and reiterating their initial

conclusions.

Trial commenced on July 10, 2023. At the outset the trial court heard

argument on Galli’s outstanding motion in limine regarding Dr. O’Malley’s

testimony. See N.T., 7/10/23, at 9-20. Galli sought to preclude Dr. O’Malley

from testifying about the standard of care for anesthesiologists and that Dr.

Odenigbo complied with the standard of care. Galli argued that Dr. O’Malley

was unqualified because he was not an anesthesiologist and that such

testimony would be cumulative. See id. The trial court denied the motion. Id.

at 19-20; N.T., 7/11/23, at 42-46.

Galli presented the following witnesses in order: his wife; a damages

expert; Dr. Kaye; Dr. Odenigbo as on cross-examination; Dr. Greene; and

himself. After Dr. Greene testified, the trial court, over Galli’s objection,

permitted Dr. Odenigbo to call Dr. Etter out of order and while they were still

on Galli’s side of the case. See N.T., 7/12/23, at 157-58. After Galli’s case in

chief, Dr. Odenigbo’s only remaining live witness was Dr. O’Malley. 2

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2 Dr. Sataloff did not testify at trial but video of his deposition testimony was

played for the jury. See N.T., 7/13/23, at 149-50.

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Relevant to this appeal, Galli objected to portions of Dr. Etter and Dr.

O’Malley’s testimony. Galli sought to preclude, and later moved to strike, Dr.

Etter’s testimony regarding the reasonableness of a post-operation

reintubation and the absence of evidence for such a reintubation as outside

the scope of his expert report in violation of Rule 4003.5(c). See N.T.,

7/11/23, at 255-67; N.T., 7/12/23, at 152-56; N.T., 7/13/23, at 7-26.

Additionally, Galli moved to preclude Dr. O’Malley from testifying about

whether Dr. Odenigbo acted within the standard of care for the second

intubation as outside the scope of his expert report. See N.T., 7/13/23, at 72-

88. The trial court denied Galli’s motions. See id. at 89-97.

At the conclusion of the third day of trial, the trial court held an off-the-

record conference regarding proposed jury instructions. See N.T., 7/12/23, at

229-231. During a brief break the following day, the trial court mentioned that

it was still undecided on whether to give Galli’s requested res ipsa loquitur

instruction and Dr. Odenigbo’s requested “mere occurrence” instruction. See

N.T., 7/13/23, at 99-100. At the conclusion of that day of trial the trial court

held another off-the-record conference regarding jury instructions. See id. at

170-71.

At the start of the last day of trial, the trial court discussed the jury

instructions it would give based on what was discussed off the record. See

N.T., 7/14/23 at 5-20. Specifically, the trial court explained that it would give

both Galli’s res ipsa loquitur charge and Dr. Odenigbo’s requested “mere

occurrence” charge. See id. at 15-16. Regarding res ipsa loquitur the trial

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court explained that “the instruction should still be given even if there’s other

possible reasons why an injury could have occurred.” Id. at 16. Prior to

instructing the jury the parties indicated that they were satisfied with the

proposed instructions that would be given to the jury. See id. at 100-01. The

trial court proceeded to instruct the jury, including the res ipsa loquitur and

mere occurrence instructions. See id. at 126-27. Galli did not object to the

mere occurrence charge during the on the record discussions or when the jury

was charged.

On July 14, 2023, the jury rendered a verdict in Dr. Odenigbo’s favor.

Galli filed a timely post-trial motion which was denied by operation of law on

November 21, 2023. On January 30, 2024, Dr. Odenigbo filed a praecipe for

entry of judgment on the verdict. Galli timely appealed. Galli filed a court

ordered concise statement of matters complained of on appeal and the trial

court filed an opinion. See Pa.R.A.P. 1925(a)-(b).

Galli raises the following issues for our review.

1. The trial court erred by permitting, over objections, both

defense experts to testify to an entirely new defense, which was

outside the scope of their reports, and in fact was wholly

contradictory to the existing discovery record in which defendant

Dr. Odenigbo testified (and introduced into evidence at trial) more

than a dozen times that he performed the final intubation.

2. The trial court erred when it permitted defense expert Bert

O’Malley M.D., an otolaryngologist, to testify as to the standard of

care applicable to [Dr. Odenigbo], an anesthesiologist for which

he was not qualified and further was cumulative of the testimony

of [] another defense liability expert’s testimony.

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3. The trial court erred when it gave an inapplicable and erroneous

jury instruction that “the mere occurrence of an injury does not

prove negligence.”

4. The trial court erred when it permitted the defense, over

objection, to call their liability expert to testify during Plaintiff’s

case in chief.

Concise Statement of Matters Complained of on Appeal, ¶¶ 1-2, 4-5

(renumbered; reordered).3

The issues raised by Galli primarily concern the admission of evidence.

“The admission or exclusion of evidence is within the sound discretion of the

trial court. In reviewing a challenge to the admissibility of evidence, we will

only reverse a ruling by the trial court upon a showing that it abused its

discretion or committed an error of law.” Nazarak v. Waite, 216 A.3d 1093,

1100 (Pa. Super. 2019) (brackets and citation omitted).

An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such a lack of support as to be clearly

erroneous. In addition, to constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.

Id. (citation omitted).

In his first issue, Galli argues that the trial court erred in overruling his

objection to Dr. Etter’s testimony as being outside the scope of his report that

Dr. Odenigbo did not perform a post-operation reintubation and the reason,

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3 Galli raised twelve issues in his concise statement. However, the issues

stated are the only issues he argues in his brief.

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in his opinion, why reintubation following surgery would have been

unnecessary.4 See Appellant’s Brief, at 19-27; Reply Brief, at 6, 10-15. Dr.

Odenigbo argues that Dr. Etter never offered a definitive opinion at trial

regarding which doctor performed the final intubation but rather merely

acknowledged Dr. Sataloff’s previous deposition testimony and was

questioned regarding Galli’s theory of a double reintubation at the end of the

procedure. See Appellee’s Brief, at 35-36.

Under Rule 4003.5(c) “the direct testimony of the expert at trial may

not be inconsistent with or go beyond the fair scope of his or her testimony in

the discovery proceedings as set forth in the deposition, answer to an

interrogatory, separate report or supplement thereto.” Pa.R.C.P. 4003.5(c).

“The avoidance of unfair surprise to an adversary concerning the facts and

substance of an expert’s proposed testimony is the primary purpose of the

rule requiring that testimony be within the fair scope of the pretrial report.”

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4 In his appellate brief, Galli focuses largely, although not exclusively, on this

Court’s unpublished memorandum decision in Yamialkowski v. Berry, No.

2280 EDA 2015, 2017 WL 361664 (Pa. Super. filed Jan. 24, 2017)

(unpublished memorandum), which although persuasive authority, is not

binding on this Court. See Appellant’s Brief, at 7-8, 18-19; Pa. R.A.P. 126(b).

In Yamialkowski this Court held that the defendant-doctor was not required

to amend his deposition testimony prior to trial, pursuant to Pa.R.C.P.

4007.4(2)(b), because his refreshed or changed recollection was not

“obtained information” and thus did not fall under the ambit of Rule 4007.4.

Setting aside the limited precedential value of Yamialkowski, in the instant

case, Galli is not directly challenging Dr. Odenigbo’s testimony under Rule

4007.4. The change in Dr. Odenigbo’s testimony is relevant only to the extent

it potentially prompted expert testimony outside of the fair scope of their

reports.

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Walsh v. Kubiak, 661 A.2d 416, 420 (Pa. Super. 1995) (en banc) (citation

omitted).

[I]n deciding whether an expert’s trial testimony is within the fair

scope of his report, the accent is on the word “fair.” The question

to be answered is whether, under the particular facts and

circumstances of the case, the discrepancy between the expert’s

pre-trial report and his trial testimony is of a nature which would

prevent the adversary from making a meaningful response, or

which would mislead the adversary as to the nature of the

appropriate response.

Garced v. United Cerebral Palsy of Philadelphia & Vicinity, 307 A.3d

103, 132 (Pa. Super. 2023), appeal denied, 327 A.3d 617 (Pa. 2024) (citation

omitted). “A fully realized defense includes the presentation of an expert

witness to rebut the evidence offered by the opposing party.” Schweikert v.

St. Luke’s Hosp., 886 A.2d 265, 268 (Pa. Super. 2005) (citation omitted).

In his report, Dr. Etter stated that, prior to the end of the procedure,

Dr. Odenigbo reintubated Galli by inserting the ETT inside the already in place

laryngoscope. See Dr. Etter’s Report, at 4, 6 (unpaginated). Dr. Etter stated

that such a reintubation was “very unlikely” to cause an injury to the airway

because “the instrument which would have allowed the intubation was already

in place[,]” and there was no evidence that Dr. Odenigbo performed a

reintubation with a metal stylet. Id. at 6-8 (unpaginated). Further, Dr. Etter

noted that post-surgery Galli had normal vital signs while in the recovery

room. Id. at 5 (unpaginated). Notably, Dr. Etter never stated that Dr.

Odenigbo performed a post-operation reintubation without a rigid

laryngoscope already in place. See id. generally.

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At trial, Dr. Etter testified that, based on Dr. Sataloff’s surgeon notes

and deposition, Dr. Sataloff performed the final intubation and Dr. Odenigbo

extubated after surgery. See N.T., 7/12/23, at 188-90. Additionally, he

testified that based on his review of the medical records, and Galli’s vital signs

post-operation, there was no reason why Dr. Odenigbo would have extubated,

reintubated, and again extubated. See id. at 192-94.

This testimony from Dr. Etter was within the fair scope of his report.

Based on Dr. Etter’s report, Galli was on notice that it was Dr. Etter’s opinion

that Dr. Odenigbo did not perform a post-operation reintubation. Dr. Etter’s

testimony that it was Dr. Sataloff who performed the final intubation during

the operation was based on Dr. Sataloff’s prior deposition testimony and did

not contradict his opinion in his report that Dr. Odenigbo reintubated Galli at

some point prior to the end of the procedure. Further, Dr. Etter based his

testimony that a post-operation extubation, reintubation, and extubation was

medically unnecessary on Galli having normal vital signs which Dr. Etter stated

in his report.

Galli was on notice of these issues such that he could make a meaningful

response via his experts’ testimony. Galli’s theory of negligence was that

“when Dr. Odenigbo reintubated Mr. Galli . . . after Dr. Sataloff completed

the papilloma surgery, [Dr. Odenigbo] negligently perforated Mr. Galli’s

hypopharynx with the metal stylet he used to advance the [ETT].” Post-Trial

Mot., at ¶ 2 (emphasis added). Proving his theory of negligence, that Dr.

Odenigbo perforated his hypopharynx with a metal stylet, necessarily required

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that Galli establish that Dr. Odenigbo performed a post-operation

reintubation. Regarding whether Galli’s theory of a post-operation extubation,

reintubation, and extubation were medically necessary, Galli asserted in his

post-trial motion that his expert witnesses testified “as to why following a

surgery in the airway, a patient is reintubated.” Id. at ¶ 92. This expert

testimony was a meaningful response to Dr. Etter’s testimony that such a

post-operation reintubation was unnecessary in this case. Thus, Dr. Etter’s

testimony did not exceed the fair scope of his report.

Similarly, Dr. O’Malley’s testimony did not exceed the fair scope of his

expert report. Galli argues that Dr. O’Malley’s testified that if Dr. Odenigbo

reintubated Galli then Dr. Odenigbo acted within the standard of care, and this

exceeded the fair scope of Dr. O’Malley’s expert report because in his report

Dr. O’Malley stated that Dr. Odenigbo only did the initial pre-operation

intubation and post-operation extubation. See Appellant’s Brief, at 34-35.

Dr. O’Malley’s testimony did not exceed the fair scope of his expert

report. When briefly asked by defense counsel to assume, based on Galli’s

theory of the case, that Dr. Odenigbo performed a final reintubation with a

metal stylet and compare the risk of that to Dr. Sataloff’s procedure, Dr.

O’Malley stated “even if he did do both, it’s absolutely minimal risk compared

to [Dr.] Sataloff.” N.T., 7/13/23, at 140-41. We reiterate the same reasoning

used to assess Dr. Etter’s testimony. That is, any testimony from Dr. O’Malley

regarding Dr. Odenigbo performing a post-operation reintubation, and his

standard of care in doing so, did not violate Rule 4003.5(c) because Galli

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would have been adequately prepared to respond since Galli necessarily had

to prove that Dr. Odenigbo performed a post-operation reintubation. Further,

based on Dr. O’Malley’s report, Galli was aware that Dr. O’Malley held the view

that there were other likely causes of the injury. Thus, Dr. O’Malley’s

testimony did not exceed the fair scope of his report.

Therefore, Galli’s argument that Dr. Etter and Dr. O’Malley’s testimony

exceeded the fair scope of their expert reports in violation of Rule 4003.5(c)

is without merit.

In his second issue, Galli claims that Dr. O’Malley should not have been

permitted to testify regarding the standard of care applicable to

anesthesiologists for intubations because he was unqualified and the

testimony was cumulative. See Appellant’s Brief, at 30-33, 35-36.

The trial court explained why Dr. O’Malley was qualified to offer such

testimony.

[Galli’s] arguments are misplaced for two reasons. One

reason is that an expert is permitted to testify about a physician’s

standard of care under the MCARE Act if the expert: 1) is

substantially familiar with the applicable standard of care for the

specific care at issue as of the time of the alleged breach of the

standard of care, 2) practices in the same subspecialty as the

defendant physician or in a subspecialty with a substantially

similar standard of care for the specific care at issue, and 3) is

board certified by the same or a similar approved board, unless

the court determines that the expert possesses sufficient training,

experience and knowledge to provide the testimony as a result of

active involvement in or full-time teaching of medicine in the

applicable subspecialty or a related field of medicine within the

previous five-year time period. 40 P.S. § 1303.512.

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[Galli] argues that Dr. O’Malley could not testify about [Dr.

Odenigbo’s] standard of care because he is not an

anesthesiologist. However, the requirements for a standard of

care expert under the MCARE act relate to the “specific care at

issue.” The law is clear that the MCARE Act does not require that

an expert share a subspecialty or board certification with a

defendant physician in order to testify about the standard of care

when they are familiar with the standard of care for the specific

care at issue. See Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010)

(Oncologist qualified to testify as to standard of care against

otolaryngologist where care involved the removal of a tumor from

the decedent’s tongue); Renna v. Schadt, 64 A.3d 658 (Pa.

Super. 2013) (pathologist and oncologist were both qualified to

testify about the standard of care against surgeon relating to his

biopsy method); Frey v. Potorski, 145 A.3d 1171 (Pa. Super.

2016) (hematologist was qualified to render standard of care

opinion against cardiologist relating to administration of

anticoagulant drugs). In Vicari, the Pennsylvania Supreme Court

explicitly held that the “relatedness” of one field of medicine to

another for purposes of the specialty and board certification

exception in subsection 512(e) can only be assessed with regard

to the specific care at issue. Vicari, 898 A.2d at 1284 (“Two fields

of medicine may be ‘related’ with respect to certain specific issues

of care, but unrelated with respect to other specific issues of

care.”).

In our case, Dr. O’Malley testified that he specialized and

was board certified in otolaryngology (i.e., ear, nose, and throat

medicine), that he was the chairman of the Department of

Otorhinolaryngology at the University of Pennsylvania for over 17

years, and that he continues to see patients on a regular basis as

part of his clinical practice. Dr. O’Malley further testified that he is

an expert in the airway and that otolaryngologists are most

needed for intubations and extubations. Dr. O’Malley confirmed

that he had both intubated and extubated “hundreds” of

patients.[]

Overall, the [c]ourt found that Dr. O’Malley was

substantially familiar with the applicable standard of care for the

specific care at issue (intubations and extubations). Moreover,

while he does not practice in the same subspecialty as [Dr.

Odenigbo], the [c]ourt found that otolaryngology has a

substantially similar standard of care for intubations and

extubations. Finally, while not board certified in anesthesiology,

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the [c]ourt found that Dr. O’Malley possessed sufficient training,

experience, and knowledge to provide testimony relating to the

standard of care for intubations and extubations. Therefore, the

[c]ourt properly admitted Dr. O’Malley’s standard of care

testimony.

Trial Court Opinion, 6/10/24, at 17-18 (footnotes, emphasis omitted). We

agree with the trial court’s well-reasoned explanation.

Therefore, for the reasons stated by the trial court, we conclude the trial

court did not abuse its discretion in finding that Dr. O’Malley was qualified to

testify about the standard of care applicable to anesthesiologists for

intubations.

Regarding the cumulative nature of Dr. O’Malley’s standard of care

testimony, Galli argues it was cumulative because Dr. Etter also testified for

the defense regarding the standard of care applicable to anesthesiologists for

intubations. See Appellant’s Brief, at 35-36. Galli’s only argument about

prejudice is premised on Dr. O’Malley not being qualified to offer such

testimony. See id. at 35. However, this argument fails because, as explained

above, the trial court did not abuse its discretion in finding that Dr. O’Malley

was qualified to testify about the standard of care applicable to

anesthesiologists for intubations.

We also conclude the trial court did not abuse its discretion in admitting

the standard of care testimony.

Under Pennsylvania Rule of Evidence 403, “[t]he court may exclude

relevant evidence if its probative value is outweighed by a danger of . . .

needlessly presenting cumulative evidence.” Pa.R.E. 403; see also Pa.R.C.P.

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223(1). Such a ruling is within the sound discretion of the trial court. See

Nazarak, 216 A.3d at 1100.

Accordingly, the trial court did not abuse its discretion in allowing Dr.

O’Malley to testify regarding the standard of care applicable to

anesthesiologists for intubations.

In his third issue, Galli claims that the trial court erred by giving jury

instructions for both res ipsa loquitur and mere occurrence. The trial court

gave the following instruction for res ipsa loquitur:

Now, as I mentioned to you earlier, you should consider

both direct evidence and circumstantial evidence. You may find

that the defendant negligent if the plaintiff has proven the

following: One, that this kind of harm or injury ordinarily does not

occur unless someone has been negligent. Two, the conduct of

persons other than the defendant, including the conduct of the

plaintiff and third persons, did not cause the harm or injury. And

three, the defendant share control of the situation or

instrumentality when the harm or injury occurred. You may

consider the general knowledge of the community and all evidence

presented.

N.T., 7/14/23, at 126.

Immediately after that the trial court gave the following

instruction:

Now, the mere occurrence of an injury or unfortunate result

does not prove negligence nor establish liability. The mere fact

that the plaintiff experienced harm or an unfortunate result, does

not establish negligence on the part of the defendant. Negligence

should not be presumed from the occurrence of an unfortunate

result

Id. at 127.

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At the outset, we find that Galli has waived this issue. Galli asserts that

he objected to the “mere occurrence” charge during the off-the-record charge

conference and his objection can be inferred from the trial court’s discussion

of the proposed charges. See Appellant’s Brief, at 36; Reply Brief, at 25-26.

That is insufficient.

Galli had numerous opportunities to place his off-the-record objection

on the record and failed to do so. Further, after discussing the proposed

charges with counsel, the trial court asked if the parties were “satisfied” with

the charges and Galli’s counsel answered in the affirmative. See N.T.,

7/14/23, at 100-01. Additionally, Galli did not object during or after the

instructions were given. This resulted in waiver. See Jones v. Ott, 191 A.3d

782, 791-92 (Pa. 2018) (plurality) (holding that counsel informing the trial

court after charging the jury that counsel had no issues with the charges given

resulted in waiver of jury-charge challenge); see also id. at 793 (Saylor, J.,

concurring).

Even if it were not waived, the trial court did not err in giving both res

ipsa loquitur and “mere occurrence” jury instructions. In support of his

argument that these jury instructions are contradictory, Galli relies on Pringle

v. Rappaport, 980 A.2d 159 (Pa. Super. 2009) (en banc). See Appellant’s

Brief, at 37-38. In Pringle, the defendant conceded that the plaintiffs had

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established the three elements of res ipsa loquitur. 5 Pringle, 980 A.2d at 176.

The trial court proceeded to instruct the jury on res ipsa loquitur and gave the

following instruction: “And folks, as a general proposition, that applies in any

case, doctors, or physicians, do not guarantee a cure to their patients, and

negligence should not be presumed from the occurrence of an unfortunate

result.” Id. (citation and emphasis omitted).

On appeal, this Court held that the two instructions were clearly

contradictory and warranted a new trial. Id. However, Galli’s reliance on

Pringle is misplaced as the operative fact there was that the defendant

conceded that the plaintiffs established the elements of res ipsa loquitur. See

id. In other words, in Pringle, because it was undisputed that the plaintiffs

established the elements of res ipsa loquitur, providing the “mere occurrence”

charge only served to confuse the jury rather than clarify the law. Pringle did

not establish a per se rule, and we are unaware of any case, and Galli fails to

cite one, where Pringle has been applied as broadly as Galli suggests.

____________________________________________

5 The primary issue in Pringle was whether the trial court erred in giving

“error of judgment” instructions to the jury. Pringle, 980 A.2d at 165. This

Court held that the trial court erred as a matter of law by giving the “error of

judgment” jury charge and the appellants were entitled to a new trial on those

grounds. See id. at 175. The Court further addressed the second issue

regarding the charges of res ipsa loquitur and “mere occurrence.” It briefly

explained that the trial court erred in giving the res ipsa loquitur and “mere

occurrence” charges and this error was a separate basis for a new trial. See

id. at 176.

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Here, the cause of the injury was disputed. The trial court explained

why, under the facts of this case, the two jury charges were appropriate and

not contradictory.

These instructions were not contradictory or confusing. The

res ipsa charge clearly stated that the jury may find [Dr.

Odenigbo] negligent if [Galli] proved the requisite elements. Once

again, [Galli’s] argument presumes that the jury was bound to

find that his injury would not have occurred without negligence.

However, since there was testimony that [Galli’s] injury could

have been caused by a pre-existing defect, fistula, or tumor, the

jury was not bound to assume negligence. Therefore, this

instruction did not mislead or confuse the jury, and accurately

conveyed the applicable law when one considers the

circumstances of this case.

Trial Court Opinion, 6/10/24, at 12 (emphasis in original).

For the reasons stated above, we agree and conclude that the trial court

did not err in providing charges of res ipsa loquitur and “mere occurrence” to

the jury.

In his final issue, Galli challenges the trial court allowing Dr. Etter to

testify out of order before Galli was finished presenting his case. The trial court

is to “exercise reasonable control over the mode and order of examining

witnesses[.]” Pa.R.E. 611(a). Such decisions are within the trial court’s

discretion. For the reasons stated by the trial court, we discern no abuse of

discretion in the trial court allowing Dr. Etter to testify before the conclusion

of Galli’s case. See Trial Court Opinion, 6/10/24, at 14-16.

Therefore, Galli’s issues are without merit, and we affirm.

Judgment affirmed.

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Date: 9/10/2025

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