The opinion
J-A13027-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DANA BORSARI, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF DAVID BORSARI, : PENNSYLVANIA
DECEASED :
:
Appellant :
:
:
v. :
: No. 1361 WDA 2024
:
LATROBE AREA HOSPITAL, INC. :
T/B/D/A EXCELA HEALTH; LATROBE :
HOSPITAL; EXCELA HEALTH :
PHYSICIAN PRACTICES, INC. :
T/B/D/A EXCELA HEALTH MEDICAL :
GROUP, MARK A. MICHAK, M.D. :
Appeal from the Judgment Entered December 3, 2024
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): No. 115 of 2023
BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.
MEMORANDUM BY OLSON, J.: FILED: JANUARY 23, 2026
Appellant, Dana Borsari, Administratrix of the Estate of David Borsari
(Borsari), appeals from the judgment entered on December 3, 2024, following
the conclusion of a civil jury trial. The December 3, 2024 judgment reflected
a jury verdict that exonerated trial defendants Latrobe Area Hospital, Inc.
t/b/d/a Excela Health; Latrobe Hospital; Excela Health Physician Practices,
Inc. t/b/d/a Excela Health Medical Group, and Mark A. Michak, M.D.
J-A13027-25
(collectively, Appellees), after finding that Dr. Michak was not negligent and
had not breached the standard of care.1 We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[Appellant] filed a complaint in medical malpractice against
[Appellees] regarding the medical care provided to [] Borsari on
March 26, 2019. On that date, [] Borsari reported to the
emergency room complaining of chest pains radiating into his left
arm. The attending physician referred him for an echocardiogram
(or EKG), and Dr. Milchak was the cardiologist on duty at the time.
After he reviewed the EKG, Dr. Milchak reported that the results
were normal and recommended a medication. According to
[Appellant] and [the] expert testimony [she presented], Dr.
Milchak fell below the standard of care because he ignored
Borsari’s health and family history and the abnormalities in the
EKG, and did not recommend a heart catheterization. As a result
of Dr. Milchak’s [alleged] breach of the standard of care, Borsari
(hereinafter referred to as “Decedent”) died on his way to work
____________________________________________
1 While Appellant purports to appeal from the October 7, 2024 order denying
post-sentence motions, the appeal properly lies from the entry of judgment
on December 3, 2024. In this case, the jury returned a verdict in favor of
Appellees on July 5, 2024. On July 15, 2024, Appellant filed a motion for
post-trial relief. On October 7, 2024, the trial court entered an order denying
Appellant relief. Appellant filed a notice of appeal on November 4, 2024. On
November 8, 2024, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. On December 3, 2024, Appellant filed a praecipe
to enter judgment on the record. On the same day, the Prothonotary sent the
parties notice of the entry of judgment. Technically, an “[a]ppeal lies from
the judgment entered and not the denial of post-trial motions,” Crosby v.
Dep't of Transp., 548 A.2d 281, 283 (Pa. Super. 1988), and a “verdict [does]
not become final for purposes of appeal until properly reduced to and entered
as a formal judgment under [Pennsylvania Rule of Civil Procedure] 227.4.”
Crystal Lake Camps v. Alford, 923 A.2d 482, 488 (Pa. Super. 2007). As
such, we have changed the caption accordingly. Finally, we note that the trial
court subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a) on
December 27, 2024.
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on April 5, 2019. The autopsy showed that Decedent had coronary
artery disease. According to [Appellees] and their expert
testimony, Dr. Milchak did not breach the standard of care
because he accurately interpreted Decedent’s test results and his
role did not extend any further since the Decedent was not his
patient for any additional purpose.
A jury trial was held on July 1, 2024 through July 5, 2024. At the
conclusion of the testimony, the jury returned a verdict in favor of
[Appellees], finding that Dr. Milchak did not breach the standard
of care. [Appellant] filed a timely post-trial motion arguing four
errors committed by [the trial court] in its evidentiary rulings.
[The trial] court denied [Appellant’s] post-trial motion on all four
matters by order of court dated October 7, 2024.
Trial Court Opinion, 12/27/2024, at 1-2 (unnecessary capitalization omitted).
As set forth above, this timely appeal resulted.
On appeal, Appellant presents the following issues for our review:
A. Did the trial court err as a matter of law and/or abuse its
discretion when it sustained [Appellees’] objection to
[Appellant’s] cardiology expert, Stuart Zarich, M.D., testifying
regarding Decedent’s Troponin levels (cardiac enzymes) when
[the testimony was reflected] within the fair scope of his
report[?]
B. Did the trial court err as a matter of law and/or abuse its
discretion when it granted [Appellees’] motion in limine to
preclude the testimony of Nurse Katherine Goldberg regarding
her observations of the relevant stress [EKG] strips[?]
C. Did the trial court err as a matter of law and/or abuse its
discretion when it sustained [Appellees’] objection to
impeachment testimony of Jeffrey Garrett, M.D. regarding the
Winschel v. Jain[2] opinion [and] which went directly to Dr.
Garrett’s credibility[?]
____________________________________________
2 Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007). As discussed more fully
below, Winschel involved a prior medical malpractice case in which Dr.
Garrett’s expert testimony was excluded from the trial record.
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Appellant’s Brief at 7 (unnecessary capitalization omitted).
Appellant claims, initially, that a new trial is warranted because the trial
court erred or abused its discretion in ruling on three evidentiary matters. As
such, we employ the following appellate standard of review:
Our standard of review when faced with an appeal from the trial
court's denial of a motion for a new trial is whether the trial court
clearly and palpably committed an error of law that controlled the
outcome of the case or constituted an abuse of discretion. In
examining the evidence in the light most favorable to the verdict
winner, to reverse the trial court, we must conclude that the
verdict would change if another trial were granted. Further, if the
basis of the request for a new trial is the trial court's rulings on
evidence, then such rulings must be shown to have been not only
erroneous but also harmful to the complaining parties.
Evidentiary rulings which did not affect the verdict will not provide
a basis for disturbing the jury's judgment....
Moreover, 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.
Heffelfinger v. Shen, -- A.3d --, 2025 WL 2025580 (Pa. Super. 2025), citing
Blumer v. Ford Motor Co., 20 A.3d 1222, 1226 (Pa. Super. 2011).
Furthermore,
[a]n abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so 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.
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E. Steel Constructors, Inc. v. Int'l Fid. Ins. Co., 282 A.3d 827, 844 (Pa.
Super. 2022) (citation omitted).
Moreover, regarding the grant or denial of a motion in limine, we have
stated:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. It gives the trial judge the opportunity
to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the
jury. A trial court's decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.
Id. (citation omitted).
First, Appellant argues that the trial court erred by limiting the trial
testimony of her proffered expert witness, cardiologist Dr. Stuart Zarich. See
Appellant’s Brief at 17-28. Appellant contends that the trial court abused its
discretion or erred as a matter of law when it sustained Appellees’ objection
to trial testimony offered by Dr. Zarich pertaining to “Decedent’s troponin
(cardiac enzyme)” levels, [3] because the trial court determined such testimony
____________________________________________
3 More specifically, according to Appellant:
Cardiac enzymes are proteins that are released into the
bloodstream when the heart is damaged or stressed. When the
heart muscle is damaged, troponin levels in the blood will
increase. Troponin levels usually start to rise within hours of heart
damage. A rise and fall in cardiac enzymes (Troponin levels) in a
blood sample can indicate a heart attack or other heart
injury/damage. Even a slight increase in troponin levels will often
mean there has been damage to the heart. Any kind of damage
to the heart muscle can potentially cause the release of this
chemical into one’s bloodstream.
(Footnote Continued Next Page)
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was outside the fair scope of Dr. Zarich’s expert report. Id. at 17. Appellant
argues that Dr. Zarich specifically referenced troponin levels in his expert
report when he stated: “[Decedent’s] cardiac evaluation revealed a normal
exam, no major EKG abnormalities, and a slight elevation in troponin
levels.” Id. at 19 (emphasis in brief), citing Dr. Zarich’s report, at 2. The
trial court precluded Dr. Zarich from testifying about troponin levels because
he only mentioned “a slight elevation” in his written expert report without
offering an opinion or an interpretation of the data; Appellant claims such a
finding amounted to an error of law or abuse of discretion. Id. at 19-21.
Appellant suggests that the trial court failed to determine whether Dr. Zarich’s
report provided Appellees with sufficient notice of his expert opinions and
theories to prepare proper rebuttal and/or determine whether Appellees were
surprised or prejudiced based upon alleged deviations between the expert
report provided in discovery and the expert’s proffered testimony at trial. Id.
at 25. Appellant argues that “Dr. Zarich clearly included the elevated troponin
levels in his report,” referred to them as part of his review of the medical
records, and identified them as factors upon which he relied in formulating his
opinions. Id. at 26. Appellant also suggests that Appellees could not be
“surprised that Dr. Zarich, a cardiologist, discussed troponin levels (cardiac
____________________________________________
Troponin levels are often tested in a series of three tests because
increased troponin levels usually do not show up for hours after
heart damage has occurred.
Appellant’s Brief at 17-18.
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enzymes) in a cardiology case,” particularly where cardiac enzymes were
referenced in his expert report, as well as the reports of expert witnesses
appearing for the defense. Id. at 27; see also id. at 26 (“Defense [e]xpert
[c]ardiologist, Jeffrey S. Garrett, M.D., similarly discussed the elevated
[t]roponins in his February 8, 2023 report.”). Appellant argues that the trial
court’s error warrants a new trial. Id. at 28.
This Court has previously stated:
Under Pennsylvania Rule of Civil Procedure 4003.5, expert reports
define the permissible scope of a party's expert trial testimony.
Pa.R.Civ.P. 4003.5(c) ([The expert's] direct testimony at the trial
may not be inconsistent with or go beyond the fair scope of his
testimony in the discovery proceedings as set forth in his
deposition, answer to an interrogatory, separate report, or
supplement thereto).
In determining whether an expert's trial testimony falls within the
fair scope of his pre-trial report, the trial court must determine
whether the report provides sufficient notice of the expert's theory
to enable the opposing party to prepare a rebuttal witness. In
other words,
in deciding whether an expert's trial testimony is within the
fair scope of his report, the accent is on the word “fair.” The
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, 131–132 (Pa. Super. 2023) (case citations, some quotations, and original
brackets omitted), appeal denied, 327 A.3d 617 (Pa. 2024).
In this case, Dr. Zarich’s expert report opined, in pertinent part:
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6. Mr. Borsari was [a] 59 [year-old] diabetic, hypertensive with a
history of hyperlipidemia, and family history of coronary disease,
when he presented to the Excela ED on 3/26/2019 with a
45-minute episode of chest pain going into left arm at rest
associated with nausea and “indigestion.” His cardiac evaluation
revealed a normal exam, no major ECG abnormalities and slight
elevation in troponin levels. Given concerns for an acute coronary
syndrome occurring at rest, he was appropriately observed
overnight and a stress echo was performed the next day.
He was able to exercise [six] minutes and [one] second on a Bruce
protocol and developed left arm pain in Stage II with frequent
ventricular ectopy starting in Stage I with ventricular tachycardia
in [S]tage II. He started to develop lateral ST depression in Stage
II. At [the] end [of] exercise, he had clear inferolateral ST
depression which actually became more prominent in recovery.
Additionally, there was ST elevation in aVR which is a worrisome
sign for extensive multi vessel coronary disease or left main
disease. By [six] minutes into recovery when monitoring stopped,
his ECG had continued to evolve.
His echocardiogram revealed mild inferolateral hypokinesis at rest
with preserved left ventricular (LV) systolic function. At peak
exercise there was a failure to augment his global LV function and
global dilatation in the LV chamber size (which should get smaller
with exercise). Taken together, [] Borsari developed symptoms,
ECG changes which persisted into recovery associated with high
grade ventricular ectopy and ventricular tachycardia along with
echocardiographic finding which were all consistent with severe
multivessel coronary artery disease. He was given low beta
blocker therapy for his ectopy, but unfortunately suffered sudden
cardiac death on 4/5/[20]19 with autopsy confirming severe left
main and multivessel coronary artery disease.
7. It is my professional opinion that Dr. Michak was negligent in
his interpretation of both [] Borsari’s stress ECG and
echocardiogram which contributed to his death. Proper
identification of these stress abnormalities should have resulted in
a timely evaluation with coronary arteriography, given his abrupt
onset of unstable angina with clear evidence of multivessel
disease on stress testing. The failure to perform subsequent
coronary revascularization increased the risk of Mr. Borsari’s
sudden cardiac death.
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Exhibit A, Plaintiff’s Response to Request for Production of Expert Reports,
11/17/2022, at 2-3 (brackets added).
On Appellant’s first issue, the trial court determined:
In the instant case, it is clear that [Appellees] would have been
prejudiced by allowing Dr. Zarich to testify as to how the troponin
levels were relevant to the case. A review of Dr. Zarich’s
November 1, 2022 report shows only one reference to troponin
levels: “[Borsari’s] cardiac evaluation revealed a normal exam,
no major EKG abnormalities and a slight elevation in troponin
levels.” Dr. Zarich did not discuss the relevancy of the slight
elevation in troponin levels and how or why the elevation related
to Dr. Milchak’s alleged breach of the standard of care or
causation. Dr. Zarich did not opine that Dr. Milchak’s failure to
consider or take some action in relation to the slight elevation in
troponin levels was negligent. As a result, Dr. Zarich’s mere
mention of the elevated [t]roponin levels was insufficient to place
[Appellees] on notice that they had to provide a response
regarding the relevancy of the elevated troponin levels.
Therefore, pursuant to PA.R.C.P. 4003.5(c), the testimony
[Appellant] sought to introduce was outside the fair scope of Dr.
Zarich’s report and [the trial c]ourt did not err or abuse its
discretion in sustaining [Appellees’] objection and denying
[Appellant’s] request for post-trial relief on the issue.
Trial Court Opinion, 12/27/2024, at 4-5 (record citations omitted).
Based upon our standard of review, applicable law, and examination of
the certified record, we agree that the trial court’s exclusion of Dr. Zarich’s
trial testimony regarding troponin levels did not constitute an error of law or
an abuse of discretion. Here, Dr. Zarich mentioned troponin levels in his
report only once. He opined, in paragraph six of his report as set forth above,
that Decedent’s “cardiac evaluation revealed a normal exam, no major ECG
abnormalities and slight elevation in troponin levels.” Exhibit A, Plaintiff’s
Response to Request for Production of Expert Reports, 11/17/2022, at 2
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(emphasis added). Dr. Zarich stated that the initial evaluation was normal,
no major abnormalities were detected, and there was a slight elevation in
troponin levels. However, the report does not speak to the diagnostic or
clinical relevance of a slight elevation in troponin levels, causation, or how and
why elevation related to Dr. Milchak’s breach of the standard of care.
Moreover, Decedent was admitted to the hospital overnight and an additional
stress echocardiogram test was performed the following day. In paragraph
seven of the above cited report, Dr. Zarich claims that “Dr. Milchak was
negligent in his interpretation of both [Decedent’s] stress ECG and
echocardiogram,” but does not specifically reference a failure to detect “the
slight elevation in troponin levels.” As such, we agree with the trial court
that Dr. Zarich did not, in his pre-trial report, discuss the significance of a
slight elevation in troponin levels or state how or why the elevation related to
Dr. Milchak’s alleged breach of the standard of care. Accordingly, under the
particular facts and circumstances of this case, the trial court acted within its
discretion in finding that the discrepancy between Dr. Zarich’s pre-trial report
and his proffered trial testimony prevented Appellees from formulating a
meaningful response specifically related to troponin levels, even though
Appellees’ own expert briefly mentioned troponin levels in his own report.4
Moreover, at trial, when confronted with a defense objection to Dr. Zarich’s
____________________________________________
4 It is unsurprising that passing references to troponin levels appear in the
expert reports tendered by both sides in a medical malpractice litigation
arising out of a fatal cardiac episode. Hence, mere casual references to
troponin levels do not alter our conclusions.
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troponin testimony as outside the fair scope of his report, counsel for Appellant
acknowledged that Dr. Zarich’s pre-trial report did not render an opinion on
troponin levels. Instead, counsel argued that “[Dr. Zarich] can’t get
everything into the report.” N.T., 7/2/2024, at 211-212. As such, Appellant
essentially conceded at trial that Dr. Zarich’s proffered testimony exceeded
the scope of his initial report. For all of the foregoing reasons, we conclude
that the trial court did not err or abuse its discretion in ruling on the
admissibility of Dr. Zarich’s trial testimony. Hence, Appellant’s first appellate
issue fails.
Next, Appellant argues that the trial court erred by not allowing
Katherine Goldberg to testify at trial “regarding her observations of [Borsari’s]
relevant stress echocardiography [test] strips.” Appellant’s Brief at 28.
Appellant points out that Goldberg was a registered nurse “with over 25 years
of experience in cardiology” and was the person who “conducted [] Borsari’s
stress cardiogram.” Id. Appellant concedes that Goldberg was called as a
fact witness rather than an expert and that she had retired “two years before
the deposition [in this matter and] indicated that she did not know if she would
be able to interpret the [echocardiography] strips satisfactorily.” Id. at 30.
Appellant, however, asserts that “Goldberg was able to clearly point out
certain ‘obvious’ findings” and should have been permitted to “testify[] in her
scope as the cardiac nurse who conducted the stress echocardiogram.” Id. at
30-31. Appellant posits that Goldberg’s precluded testimony “was critical” to
rebut defense expert evidence “that the majority of [Borsari’s] stress echo
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strips were completely normal.” Id. at 37. Appellant claims instead that
Goldberg’s credibility “should have been left to the jury to determine.” Id. at
37-38. Finally, Appellant argues that Pennsylvania Rule of Civil Procedure
4020(a)(5), permits previously recorded medical witness depositions, such as
Goldberg’s 2022 deposition at issue here, to “be used at trial for any purpose,
whether or not the witness is available to testify.” Id. at 38, citing Pa.R.C.P.
4020(a)(5) (use of depositions at trial). As such, Appellant argues that
Goldberg should have been permitted to testify as a fact witness, either in
person at trial or by video deposition. Id. at 39.
Pennsylvania Rule of Evidence 701 provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is: (a) rationally based on the
witness's perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701.
Whereas, Pennsylvania Rule of Evidence 702, pertaining to expert
witnesses, states:
If scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education
may testify thereto in the form of an opinion or otherwise.
Pa.R.E. 702.
This Court has previously determined that
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whether testimony constitutes fact or opinion may be difficult, for
there is no litmus test for fact versus opinion. Technical expertise
does not ipso facto convert a fact witness, who might explain how
data was gathered, into an expert witness, who renders an opinion
based on the data.
Deeds v. Univ. of Pennsylvania Med. Ctr., 110 A.3d 1009, 1017 (Pa.
Super. 2015) (internal citations, quotations and brackets omitted). Moreover,
this Court has found that a “treating [medical professional’s] testimony is not
subject to expert witness disclosure when the opinions or facts are developed
in the normal course of medical treatment for a patient[,] are not developed
in anticipation of litigation[, and the] knowledge was required [] to treat []
injury.” Commonwealth v. Clark, 311 A.3d 626 (Pa. Super. 2023), appeal
denied, 318 A.3d 91 (Pa. 2024).
Regarding Goldberg, the trial court determined:
Katherine Goldberg was a nurse that assisted Dr. Milchak in
conducting Decedent’s stress test. During oral argument of
[m]otions in [l]imine, [Appellant’s] counsel stated that she was
only calling Nurse Goldberg as a fact witness to testify about
findings on the stress echo strips that Nurse Goldberg said were
“obvious.”
* * *
[The trial c]ourt indicated to [Appellant’s counsel] that the
testimony would be permitted if Nurse Goldberg testified that she
used the information observed on the strips to provide treatment
to the Decedent. However, at the time of her deposition on May
6, 2022, Nurse Goldberg had been retired for a period of two years
and she testified that she had no independent recollection of the
Decedent or the events surrounding his care. As a result,
[Appellant’s] counsel showed her the strips at issue and asked her
to interpret them based on what Nurse Goldberg said would be
obvious in just viewing the strips. Since Nurse Goldberg did not
utilize [the observations she made at her deposition on May 6,
2022] in her treatment of Decedent, her interpretation of those
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strips at the time of the deposition required specialized knowledge
and qualified as expert testimony rather than factual testimony.
Nurse Goldberg’s findings were no different than any other expert
in the case who reviewed the records after the fact and provided
an opinion of what those records showed. Therefore, her opinion
testimony regarding the test strips was impermissible pursuant to
Pa.R.E. 701(c) and [the trial c]ourt did not err or abuse its
discretion in excluding the testimony.
Trial Court Opinion, 12/27/2024, at 5-6 (record citations omitted). Moreover,
the trial court further noted that even if Appellant had presented Nurse
Goldberg as an expert, she was not qualified under “Sections 1303.512(b) and
(c) of the MCARE Act because she did not possess a physician’s license and
was not board certified in the same specialty” as Dr. Milchak. Id. at 6, n.1.
We discern no abuse of discretion or error of law in precluding Nurse
Goldberg’s testimony at trial. Here, there is no dispute that Nurse Goldberg
was offered only as a fact witness. See N.T., 6/27/2024, at 19 (“Not as an
expert, as a fact witness. Simply as a fact witness because she was in[volved
with] this stress echo.”). The trial court indicated that it would allow Nurse
Goldberg’s testimony if it related specifically “to her particular care” of
Decedent, but noted that “if [Nurse Goldberg was] call[ed] to interpret
information two years after the fact,” she would need to be qualified “as an
expert to render an opinion” but she had not been offered as an expert
pursuant to Pa.R.E. 702. Id. at 20; see also id. at 22 (“[T]o make it factual
testimony she has to say that she used that information in how she treated
the care of the decedent. If she did that in her deposition, [it is permissible].
If she’s just merely interpreting records [based solely upon later review],
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that’s expert testimony.”). Moreover, at no time did Appellant dispute
Appellees’ contention that Nurse Goldberg did not specifically recall Decedent
or the care rendered. See N.T., 6/27/2024, at 18 (“She testified [by
deposition] that she doesn’t remember what she saw at the time, she doesn’t
know what she interpreted at the time. She actually said in her deposition,
it’s been two years since I’ve reviewed the strips, I don’t feel comfortable
reviewing EKG strips and interpreting these.”). The record confirms that
Nurse Goldberg did not recall how her original interpretation of Decedent’s
stress echo strips influenced her treatment of his medical condition. As such,
she was disqualified from testifying as a fact witness. Moreover, Appellant’s
reliance upon Nurse Goldberg’s expertise and technical experience to suggest
she was competent to testify merely highlights the fact that Appellant asked
Nurse Goldberg to offer opinions based solely on her scientific, technical,
and/or specialized knowledge as an expert under Pa.R.E. 702. Because
Appellant merely offered Nurse Goldberg as a fact witness, we discern no
abuse of discretion or error of law in precluding her deposition from trial.5
Accordingly, Appellant’s second issue lacks merit.
____________________________________________
5 Finally, we note that “this Court also determined that the rules governing
expert and lay testimony do not preclude a single witness from testifying, or
offering opinions, in the capacity as both a lay and an expert witness on
matters that may embrace the ultimate issues to be decided by the
fact-finder.” Commonwealth v. Yocolano, 169 A.3d 47, 62 (Pa. Super.
2017), citing Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013).
However, the witness must be presented in dual capacity and the party
offering the testimony must clarify when testimony given in the form of an
(Footnote Continued Next Page)
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In her third issue presented on appeal, Appellant argues that the trial
court erred by not allowing her counsel to cross-examine Dr. Jeffrey Garrett,
M.D., cardiologist and defense expert, in detail, regarding his opinion
testimony addressed by this Court in Winschel v. Jain, 925 A.2d 782 (Pa.
Super. 2007). Appellant’s Brief at 39-46. Appellant asserts that Dr. Garrett’s
opinion in Winschel was similar to the opinion that he offered in this case.
Id. at 44 (“Not only was Dr. Garrett’s opinion in Winschel [] the same opinion
that he offered in this case, the facts are almost identical as well.”). Appellant
posits, however, Dr. Garrett’s opinion was excluded from trial in the Winschel
matter. Id. at 40. Appellant concedes that the trial court allowed Appellant’s
counsel to question Dr. Garrett about his involvement in the Winschel case,
the opinion he formulated in that case, and whether he remembered that he
ultimately was not permitted to provide an opinion in Winschel. Id. at 40-41.
Appellant argues, however, that the trial court erred in prohibiting her
counsel’s attempts to impeach Dr. Garrett by confronting him about the
exclusion of his opinion testimony from the trial record in the Winschel case.
Id. at 44. Appellant argues that the evidence was relevant and that our
Court’s decision in Winschel qualifies as an exception to hearsay under the
public records exception pursuant to Pa.R.E. 803(8). Id. at 44 (“Dr. Garrett
____________________________________________
opinion is based upon expert knowledge or facts personally perceived. See
id. In such instances, the trial court is further required to instruct the jury
regarding lay versus expert testimony and explain that the jurors are solely
responsible for credibility determinations. See id. Here, Appellant never
offered Nurse Goldberg as a dual witness and, as a result, the trial court did
not instruct the jury regarding lay versus expert testimony.
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was impeached with his previously excluded opinion [and] getting flat-footed
is not a basis to preclude from trial relevant evidence used to impeach a
witness’s credibility.”); see also id. at 45-46 (“Neither party can credibly
dispute that the Superior Court decision that was used to impeach Dr. Garrett
was a reliable document [and] a public record.”). Appellant contends that she
is entitled to a new trial because “the jury did not hear the full impeachment
testimony of Dr. Garrett, which goes to his credibility and bias.” Id. at 46.
On this issue, the trial court determined:
In Winschel v. Jain, [Winschel] brought suit against a
cardiologist, Dr. Jain, alleging that his failure to diagnose an
obstruction of the decedent's left coronary artery fell below the
standard of care for a cardiologist because he did not recommend
a cardiac catheterization despite evidence of decedent's risk
factors. [Winschel, 925 A.2d] at 786. The defense offered Dr.
Garrett as an expert on the applicable standard of care. Dr.
Garrett opined that "because Decedent had been referred by his
family physician to Dr. Jain only for a stress test, the applicable
standard of care in this case required only that Dr. Jain perform
the stress test properly and report the results accurately to the
referring physician." Id. at 796. Further, "the standard of care did
not include a duty to make any recommendations for future
treatment, based [...] on the cardiologist's knowledge of the
potential for false negatives of the tests performed and/or the
patient's medical history." Id. The trial court excluded [Dr.
Garrett’s testimony confirming a diminished duty of care in
Winschel], finding that a cardiologist has an independent duty to
the patient that is not "circumscribed by a referring physician."
Id. On appeal, Dr. Jain challenged the exclusion of Dr. Garrett's
testimony. The Superior Court upheld the [trial] court's exclusion
of Dr. Garrett's testimony, holding that Dr. Jain's position "that his
duty to Decedent was defined by the referral instructions from
Decedent's general practitioner” contradicts precedential law
holding that "a specialist physician is held to a higher standard of
care than a general practitioner when the specialist is acting within
his or her specialty.” Id. at 797.
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[Appellant] argued that Dr. Garrett's expert report and testimony
in the current matter was similar to the expert report and
testimony provided in Winschel; i.e., that [Dr. Michak] did not
breach the standard of care because he properly interpreted the
stress echocardiogram, which was his only duty that day as a
Heart Station doctor, whose role was to do stress tests, read EKGs
or echoes, but not do a consultation where a full history is taken
and treatment recommendations are made. [Appellees
challenged the similarities and raised factual differences on the
record in support of an objection.] Despite these similarities,
[Appellant] did not ask [the trial c]ourt to exclude Dr. Garrett's
expert report and testimony based on the Winschel holding.
Instead, [Appellant] asked to question Dr. Garrett about the prior
exclusion as impeachment testimony, arguing that the fact that
his opinion was excluded in another case impacted his credibility
when he [entered another courtroom] with the same opinion.
[Appellant] relies on the case of Commonwealth v. Ballard, 80
A.3d 380 (Pa. Super. 2013) for the position that
cross-examination of an expert witness may include questions
regarding the expert's testimony in prior cases and questions
pertaining to a case where the expert's opinion is excluded. In
Ballard, the expert doctor testified that in his expert opinion, the
defendant suffered from a mental illness. Id. at 395. Previously,
a federal district court excluded the same doctor's testimony
about a defendant's mental illness because it had minimal
probative value and it was confusing to the jury. Id. at 395 and
n.19. The Ballard Court held that it was proper to impeach the
expert doctor regarding the prior exclusion of his testimony;
however, that holding was not [given broad reach], as the
Supreme Court noted that:
the questions about [the prior case] pushed the bounds of
relevancy given the obvious complications involving factual
distinctions, different evidentiary standards, and the
dubious relevancy of another court's discretionary ruling. To
the extent the questioning here could be said to cross the
line, we credit the trial court's alternative finding of
harmless error, given the strength of the aggravating
factors [...].
Ballard, 80 A.3d [at] 397 and n.19.
It is evident from this qualification that the Supreme Court relied
heavily on the particular facts of the case before it in reaching its
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conclusion and recognized that such impeachment testimony may
not be permissible in every case.
Based on the application of the standard for impeachment
testimony and the Ballard holding to the current case, [the trial
court] did allow [Appellant’s] counsel to impeach Dr. Garrett by
allowing her to question him about his involvement in the
Winschel case, his opinion in that case, and whether he
remembered that he was not permitted to provide that opinion to
the jury. Through this testimony, the jury was aware that Dr.
Garrett gave a prior opinion, the content of that opinion, that Dr.
Garrett still agreed with his position in that opinion, and that the
opinion was excluded by another court. The only portion of
testimony excluded, as a result of [Appellees’] objection to
relevancy and hearsay, regarding the Winschel case was
[Appellant’s counsel’s] question that characterized the facts of the
Winschel case in [Appellant’s] counsel's own words and the
follow-up questions [counsel asked that pertained] to that
characterization. Specifically, after Dr. Garrett indicated that he
had no idea if the Winschel Court stopped his opinion from going
to the jury, [Appellant’s] counsel posed the following question:
The Court didn't allow you to give the opinion. The Court
said, no. Cardiologists cannot just act like a radiologist. A
cardiologist who has devoted special study and attention to
the diagnosis and treatment of cardiac disease, which
includes interpretation of results of diagnostic tests, and the
appreciation for the significance of family medical history to
an individual's diagnosis of cardiac disease and subsequent
prognosis must act like a cardiologist. Are you aware of
that?
The entire question was based on [Appellant’s] counsel's
summary, in her own words, of the legal conclusions made in
Winschel and [Appellant] provided no evidentiary basis for
allowing such a summary before the jury. Also, [the trial court]
fail[ed] to see how [exclusion of Dr. Garrett’s] opinion on an
evidentiary basis [made] Dr. Garrett more or less credible in the
current matter. Even if it were relevant, it would be highly
prejudicial because it would also challenge the accuracy and
admissibility of Dr. Garrett's ultimate opinion in the current case
that no breach of the standard of care occurred, which [Appellant]
did not [seek] to exclude and which was properly before the jury.
[Appellant’s] counsel's follow-up question to the case summary
further establishes this prejudice: "Well the subject of this opinion
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that you're here giving today is [ ... ] a published opinion, [ ... ]
it's an opinion that you cannot give and the Court [in
Winschel] did not allow you to give. You're not aware of that as
we sit here today?" See Dr. Garrett's Deposition Transcript, [at
19-20] (emphasis added). If this question were allowed, then the
jury would be under the impression that Dr. Garrett's expert
opinion regarding the standard of care could not be considered
even though no motion or request was made by [Appellant’s]
counsel to exclude his opinion. Relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice or confusion. Therefore, [the trial
c]ourt allowed [Appellant] to adequately cross-examine Dr.
Garrett regarding the Winschel case, and the exclusions made
were discretionary in nature, were not in error or an abuse of that
discretion, and even if it was in error, it was harmless error
because [Appellant] did get before the jury the information that
was relevant to the impeachment of Dr. Garrett.
Trial Court Opinion, 12/27/2024, at 7-10 (most record citations, quotations,
and case citations omitted; emphasis in original).
Upon review, we agree with the trial court’s rationale. Initially, we note
that our Supreme Court in Ballard has stated
a proper purpose of cross-examination includes attempts to
impeach a witness's credibility. It is well-settled that whatever
tends to show the interest or feeling of a witness in a cause is
competent by way of cross examination. Of course, [a] relevant
dispute [may] involve[] the question of which kinds of facts show
the interest of a witness. With regard to an expert witness's
testimony in prior [proceedings], our Court has addressed this
subject before. See Commonwealth v. Laird, 988 A.2d 618,
644 (Pa. 2010). However, the appellant in Laird framed the issue
not as one of relevance, but as implicating prosecutorial
misconduct, and the Court addressed it as such. Id. [O]ur sister
states generally have found [] questioning [about an expert’s prior
opinion in an unrelated case] proper, so long as the prosecution
does not elicit superfluous facts from prior cases that might
confuse the jury.
First, we find no reason [] to reject the general proposition,
recognized in other jurisdictions, that a mitigation expert in a
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capital sentencing hearing may be questioned about his personal
beliefs about the death penalty, or about his testimony in prior
cases, in order to attempt to establish a testimonial pattern and
expose possible bias - so long as the questions are limited to an
appropriate number and type of cases, and the thrust of the
testimony in those cases.
Ballard, 80 A.3d at 396–398 (most case citations and quotations omitted;
brackets and emphasis added).
Ultimately, our Supreme Court in Ballard found “no abuse of discretion
in the trial court finding that [the expert’s] opinion of the death penalty, his
testimony in prior cases, and the fact of the exclusion of his testimony in [a
prior, unrelated case], were proper areas of inquiry in an attempt to establish
that the doctor was an expert with a defense bias in capital cases.” Id. at
397. However, the Ballard Court also determined that although there was
no abuse of discretion about questioning an expert about a prior case, our
Supreme Court judicially cautioned that such questioning should not “push[]
the bounds of relevancy given the obvious complications involving factual
distinctions, different evidentiary standards, and the dubious relevance of
another court's discretionary rulings.” Id. at 398 n.19. As such, the Ballard
Court determined that “[t]o the extent” that cross-examination “could be said
to cross the line,” an appellate court may consider an “alternative finding of
harmless error[.]” Id.
Here, there is no dispute that the trial court allowed counsel for
Appellant to question Dr. Garrett, in a video-taped deposition played for the
jury, about his involvement in the Winschel case, his opinion in that case,
and whether he remembered that he was not permitted to provide an opinion
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in that matter. See N.T., 7/3/2024, at 495-497 (“Whereupon, the videotaped
deposition of Jeffrey Garrett, M.D. was played for the jury.”); see also
Appellee’s Brief, Exhibit D, Transcript of Videotaped Deposition of Jeffrey S.
Garrett, M.D., 6/23/2024, at 114-120; see also R.R. at 227-229. Dr. Garrett
stated that he did not recall the Winschel case because it had been decided
20 years prior. Id. There was no abuse of discretion in permitting
cross-examination about the expert’s opinions regarding a prior decision. The
jury was permitted to hear proper areas of inquiry in an attempt to establish
that Dr. Garrett was an expert with a bias for the defense.
However, as Ballard makes clear, additional lines of inquiry about
Winschel were impermissible. Quite simply, Appellant was not permitted to
elicit superfluous facts about Winschel that might confuse the jury in light of
obvious complications involving factual distinctions, different evidentiary
standards, and the dubious relevance of the Winschel Court’s discretionary
rulings. As such, we discern no abuse of discretion or error of law in precluding
Appellant from additional cross-examination of Dr. Garrett. Accordingly,
Appellant’s final appellate claim lacks merit.
Judgment affirmed.
DATE: 1/23/2026
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