DLP Conemaugh Memorial Medical Center v. Doe, J.

J-A12046-25

2026 PA Super 107

DLP CONEMAUGH MEMORIAL : IN THE SUPERIOR COURT OF

MEDICAL CENTER, LLC D/B/A : PENNSYLVANIA

CONEMAUGH HEALTH CENTER, LLC :

D/B/A CONEMAUGH HEALTH SYSTEM :

AND CONEMAUGH MEMORIAL :

MEDICAL CENTER LEE CAMPUS; DLP :

HEALTHCARE, LLC D/B/A DUKE :

LIFEPOINT HEALTHCARE :

: No. 680 WDA 2024

:

v. :

:

:

JANE BR 1 DOE AND LAUREL :

PEDIATRIC ASSOCIATES, INC., :

D/B/A LAUREL PEDIATRIC :

ASSOCIATES; JOHNSTOWN :

PEDIATRIC ASSOCIATES D/B/A :

JOHNSTOWN PEDIATRIC :

ASSOCIATES; CONEMAUGH VALLEY :

MEMORIAL HOSPITAL D/B/A :

MEMORIAL MEDICAL CENTER; UPMC :

LEE HOSPITAL AND/OR UPMC LEE :

REGIONAL; AND JOHNNIE W. :

BARTO, M.D. :

:

:

APPEAL OF: DLP CONEMAUGH :

MEMORIAL MEDICAL CENTER, LLC :

AND DLP HEALTHCARE, LLC :

Appeal from the Order Entered January 8, 2024

In the Court of Common Pleas of Cambria County

Civil Division at No: 2019-2172

__________________________________________________________

LAUREL PEDIATRIC ASSOCIATES, : IN THE SUPERIOR COURT OF

INC. D/B/A LAUREL PEDIATRIC : PENNSYLVANIA

ASSOCIATES :

J-A12046-25

:

Appellant :

:

:

v. :

: No. 681 WDA 2024

:

JANE BR1 DOE :

v. :

:

:

JOHNSTOWN PEDIATRIC :

ASSOCIATES, INC. D/B/A :

JOHNSTOWN PEDIATRIC :

ASSOCIATES; DLP CONEMAUGH :

MEMORIAL MEDICAL CENTER, LLC :

D/B/A CONEMAUGH HEALTH :

CENTER, LLC D/B/A CONEMAUGH :

HEALTH SYSTEM AND CONEMAUGH :

MEMORIAL MEDICAL CENTER LEE :

CAMPUS; DLP HEALTHCARE, LLC :

D/B/A DUKE LIFEPOINT :

HEALTHCARE; CONEMAUGH VALLEY :

MEMORIAL HOSPITAL D/B/A :

MEMORIAL MEDICAL CENTER; UPMC :

LEE D/B/A UPMC LEE HOSPITAL :

AND/OR UPMC LEE REGIONAL; AND :

JOHNNIE W. BARTO, M.D. :

Appeal from the Order Entered January 8, 2024

In the Court of Common Pleas of Cambria County

Civil Division at No: 2019-2172

BEFORE: STABILE, J., KING, J., and SULLIVAN, J.

OPINION BY STABILE, J.: FILED: May 26, 2026

In these consolidated interlocutory appeals, DLP Conemaugh Memorial

Medical Center, LLC, DLP Healthcare, LLC d/b/a Duke LifePoint Healthcare

(collectively “DLP”) and Laurel Pediatrics Associates (“LPA”) appeal from an

order consolidating four cases for a single trial. These cases involve different

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plaintiffs, different defendants, and individualized allegations of sexual abuse

by a now-incarcerated pediatrician. Although these cases involve common

questions of law, their consolidation will prejudice each defendant before the

jury. We therefore conclude that the trial court abused its discretion by

consolidating these cases for trial against DLP and LPA, and we reverse and

remand for further proceedings.

On May 14, 2019, five plaintiffs filed a tort action against DLP, LPA,

Johnny Barto and other medical defendants alleging that Barto sexually

abused the plaintiffs as minors when he was a pediatrician with LPA and held

privileges at DLP. Subsequently, the case expanded in size to include over

140 plaintiffs with claims of sexual abuse against Barto spanning the course

of several decades. The initial complaint, which serves as the master

complaint, has been amended several times. Barto is now serving a prison

sentence following his guilty plea to sexually abusing family members and his

nolo contendere plea to claims of sexual misconduct against his minor

patients. The master complaint alleges the same causes of action by all

plaintiffs: specifically, childhood sexual abuse and vicarious liability,

negligence—hiring/retention, negligent supervision, negligent

misrepresentation, intentional infliction of emotional distress, civil conspiracy

to protect reputation and finances, medical negligence, violations of Title IX,

and corporate negligence.

For most of his medical career, Barto co-owned two private pediatric

practices in the Johnstown, Pennsylvania area: Johnstown Pediatric Associates

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(owned from 1977-2000) and LPA (2000-2017). Barto also held privileges at

different local hospitals at different times, including defendants Conemaugh

Memorial Hospital, UPMC Lee Regional Medical Center, and DLP. There is no

allegation that any of the hospital defendants owned or were affiliated with

either of Barto’s practices.

In June 2023, after several years of discovery, plaintiffs filed a motion

requesting a case management order in which bellwether cases would be

coordinated for all pretrial purposes but tried individually. DLP filed an

objection asserting that plaintiffs’ claims lacked the commonality and

representativeness that is necessary for a bellwether trial protocol and

therefore would be inefficient and fundamentally unfair to DLP.

On January 8, 2024, the trial judge, the Honorable Norman A.

Krumenacker, III entered an order directing that four bellwether cases be

“combined and . . . tried together.” Order, 1/8/24.

The Court determined that plaintiffs’ bellwether proposal had merit and

directed the parties to submit a list of proposed cases for inclusion in the

bellwether cases. The court ultimately selected four cases. It chose cases that

included stronger and weaker fact patterns against some or all of the

defendants. The cases involved claims that spanned multiple years, varied

legal theories, and some or all of the defendants. The court hoped that upon

completion of discovery, the defendants would file motions for summary

judgment, since the selected cases involve stronger and weaker factual

allegations against the various defendants. The court hoped resolution of

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summary judgment motions would put the parties in a better position to

determine how to proceed on remaining claims to avoid the unnecessary

duplication of pretrial motions and trials. Cases that remained after summary

judgment or severance would proceed to trial, and once a jury verdict was

rendered, the court expected the parties to be in a better position to resolve

the remaining cases having the benefit of the full pretrial practice, associated

rulings, and a jurors’ evaluation of the merit of the plaintiffs’ claims. The court

acknowledged that while the selected cases may not ultimately be proper for

joinder, it was the court’s intention to select a broad assortment of cases that

would provide the court and parties the opportunity to resolve a variety of

issues that would arise by way of motion practice and allow them to develop

a procedure to move the remaining cases more effectively towards resolution.

Trial Court Opinion, 9/5/24 at 3-4. The court did not address whether

consolidation would prejudice any party.

On February 6, 2024, DLP applied for reconsideration of the

consolidation order, or, in the alternative, for certification of the order for

interlocutory appeal under 42 Pa.C.S.A. § 702(b).1 One day later, LPA timely

____________________________________________

1 42 Pa.C.S.A. § 702(b) prescribes:

When a court or other government unit, in making an interlocutory

order in a matter in which its final order would be within the

jurisdiction of an appellate court, shall be of the opinion that such

order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate

(Footnote Continued Next Page)

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filed a motion joining in DLP’s application. On February 15, 2024, Judge

Krumenacker denied reconsideration. On February 26, 2024, Judge

Krumenacker recused himself from this case. On March 5, 2024, however,

Judge Krumenacker timely certified the case for interlocutory appeal by

amending the January 8, 2024 order to include the certification language

prescribed in 42 Pa.C.S.A. § 702(b).2 On March 18, 2024, DLP and LPA timely

filed petitions in this Court for leave to take interlocutory appeals from the

consolidation order.3 On June 11, 2024, this Court granted DLP and LPA leave

to appeal.

DLP and LPA raise the same question in these appeals, “Whether the

trial court abused its discretion in ordering the consolidation for joint trial of

the four cases of Plaintiffs BR1, TS 11, AS67, and AP78, where the cases do

____________________________________________

termination of the matter, it shall so state in such order. The

appellate court may thereupon, in its discretion, permit an appeal

to be taken from such interlocutory order.

Id. DLP’s application was timely under Pa.R.A.P. 1311(b), which requires

applications for certification under Section 702(b) to be filed in the trial court

within thirty days of the entry of the subject order.

2 See Pa.R.A.P. 1311(b) (authorizing the court to act upon application for

certification under Section 702(b) within thirty days after it is filed). None of

the parties in this appeal object to the judge’s decision to certify this matter

for appeal despite previously recusing himself. Therefore, we will not address

whether the judge’s recusal precluded him from entering a certification order.

3 See Pa.R.A.P. 1311(b) (petition for permission to appeal must be filed in

this Court within thirty days after entry of certification order under Section

702(b) in trial court).

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not involve common parties or common questions of fact and law, and where

consolidation will result in unfair prejudice to [DLP and LPA]?” DLP’s brief at

5; LPA’s brief at 3.

Pennsylvania Rule of Civil Procedure 213(a) governs the consolidation

of actions pending in the same county. It provides:

In actions pending in a county which involve a common question

of law or fact or which arise from the same transaction or

occurrence, the court on its own motion or on the motion of any

party may order a joint hearing or trial of any matter in issue in

the actions, may order the actions consolidated, and may make

orders that avoid unnecessary cost or delay.

Id. Consolidation is permissible to avoid “multiple trials and proceedings

involving common facts or issues arising from the same transaction or

occurrence.” Pa.R.C.P. 213, Comment. “The duplication of efforts is a benefit

to both the parties and the courts.” Id. Rule 213 was further promulgated

for “the prevention of inconsistent verdicts ... the elimination of trial delays,

speedier litigation, and the reduction of expenses for the parties.” Skender

v. Skender, 2023 WL 8598273, *5 (Pa. Super., Dec. 12, 2023) (unpublished

memorandum).

When deciding whether to consolidate actions, the court must first

examine whether they “involve a common question of law or fact” or “arise

from the same transaction or occurrence.” Pa.R.Civ.P. 213(a). If this test is

met, the court must then determine whether consolidation will prejudice any

party. See Azinger v. Pennsylvania R.R. Co., 105 A. 87, 88 (Pa. 1918).

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Consolidation is not appropriate when it “would tend to place the objecting

party at a disadvantage, or give an undue advantage to his adversary.” Id.;

see also Malanchuk v. Tsimura, 137 A.3d 1283, 1288 (Pa. 2016)

(observing that Azinger remains good law). Another reason not to

consolidate cases for trial is because the jury might be influenced by sympathy

for the plaintiff. Cruz v. Roberts, 2005 WL 4875762, 78 D. & C. 4th 75, 79

(2005)4 (citing Balla v. Sladek, 112 A.2d 156, 159 (Pa. 1955)). Finally,

consolidation is improper when it creates the risk of jury confusion. Cruz, 78

D. & C. 4th at 79.

We review an order consolidating cases for abuse of discretion or an

error of law. Rogers v. Thomas, 291 A.3d 865, 893 (Pa. Super. 2023). A

key consideration in this analysis is whether consolidation will prejudice the

objecting party. See Balla, 112 A.2d at 159 (court properly refused to

consolidate actions for trial against city and railroads arising out of motor

vehicle accident, where “jury might have been influenced by sympathy for the

decedent to the prejudice of the defendants”); see also Skender, 2023 WL

8598273, *6 (citing Azinger, 105 A. at 88 (“The question is one that must

necessarily be left to the discretion of the trial judge, and where the issues

are the same and they arise out of the same transaction, and it does not

____________________________________________

4 While decisions of common pleas courts are not binding precedent, we may

consider them for their persuasive authority. Miller v. Bunting, 335 A.3d

733, 754 n.19 (Pa. Super. 2025).

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appear the trial of the cases together would tend to place the objecting party

at a disadvantage, or give an undue advantage to his adversary, the action of

the court in ordering the cases tried together will not be reversed”)).

Before proceeding further, we note that this appeal involves unique

circumstances. We have not found any Pennsylvania appellate decision

concerning consolidation of civil actions involving alleged sexual abuse. The

only Pennsylvania decision on this subject is the trial court opinion in Cruz

that we discuss in detail below. Furthermore, we have located only one

Pennsylvania appellate decision concerning use of the bellwether case

procedure in a mass tort setting, Ball v. Bayard Pump & Tank Co., Inc., 67

A.3d 759 (Pa. 2013). For the reasons provided below, we find Ball

distinguishable from this appeal. See n.6, infra.

Presently, the court ordered the following cases consolidated for trial:

Case 1—Jane BR1 Doe contends that Barto sexually abused her

when she was 10 years old on a single occasion in 2000 during a

sports physical at Johnstown Pediatric Associates. She does not

allege any claim against DLP or LPA. Plaintiffs’ Fourth Amended

Complaint at ¶¶ 73-84.

Case 2—Jane TS11 Doe, Jane BR1 Doe’s sister, contends that her

mother told her that Barto sexually abused her as an infant on a

single occasion in 2000 or 2001 at an urgent appointment for an

earache. She has no recollection of the alleged event. She asserts

a claim against LPA but not against DLP. Id. at ¶¶ 163-72.

Case 3—Jane AS67 Doe contends she was a patient at LPA for

approximately fourteen years until 2016 and that Barto conducted

invasive genital and/or breast examinations at her appointments

and alleges an abusive and erroneous vaginal examination on one

occasion. She asserts claims against DLP and LPA. Notice Of

Adoption Of Master Complaint For Jane AS67 Doe.

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Case 4—Jane AP78 Doe also contends that Barto conducted

invasive genital and/or breast examinations at her appointments

between 2000 and 2015. She asserts claims against DLP and LPA.

Notice Of Adoption Of Master Complaint For Jane AP78 Doe.

The four actions here do not arise from the same transaction or

occurrence; they arose at different times and places over a period of sixteen

years.

Turning to whether these actions “involve a common question of law or

fact,” the use of “or” demonstrates that this standard is satisfied if the actions

involve a common question of fact or a common question of law. The four

actions do not involve common questions of fact. In Cruz, supra, two cases

were filed in Lancaster County involving alleged abuse of two different minors

at the same day care center and by the same employee. One minor allegedly

was assaulted several times in 1992 or 1993, while the other allegedly was

assaulted in 2002. The plaintiffs in these actions moved to consolidate them

for trial. The court held that consolidation for trial was inappropriate because

there were no common questions that warranted consolidation, even though

both minors alleged abuse by the same perpetrator. The court reasoned:

At issue in the cases is not the assault of one girl, but two. In

addition, these assaults occurred approximately a decade apart

and would undeniably involve differing factual scenarios.

Furthermore, the questions regarding the defendants’ awareness

of [the employee’s] propensity to assault children relate to two

separate and distinct events and time periods.

Id., 78 D. & C. 4th at 79-80. Here, as in Cruz, the four cases joined in the

present case do not share a common question of fact, because Barto’s alleged

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assaults against the four plaintiffs took place at different times over a sixteen-

year period and in different locations. Moreover, as in Cruz, DLP’s and LPA’s

awareness of Barto’s propensity to assault the four children relate to separate

and distinct events and time periods—so separate and distinct, in fact, that

DLP is not a defendant in two of the four cases and LPA is not a defendant in

one of the four cases.

On the other hand, the four actions involve common questions of law.

The plaintiffs in all four actions allege the same causes of action, so the same

legal standards will come into play in each case to determine questions of

liability. Moreover, the ultimate legal question in each case is the same:

whether the defendants knew or should have known about Barto’s alleged

conduct. Cf. Garrity v. Governance Board of Cariños Charter School,

2020 WL 5074385, *2 (D.N.M. 2020)5 (separate actions brought on behalf of

two minor plaintiffs against school board and its CEO alleging that CEO

assaulted and groomed them at different times; while court ultimately ruled

against consolidation, it held that cases involved similar legal issues under

constitutional law and Title IX). Given the overlap in legal issues, we conclude

that one of the tests for consolidation is satisfied.

____________________________________________

5 Although decisions from lower federal courts are not binding precedent, we

may consider them for their persuasive authority. Okeke-Henry v.

Southwest Airlines, Co., 163 A.3d 1014, 1017 n.4 (Pa. Super. 2017).

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Nonetheless, although common questions of law exist, we conclude that

consolidation of these cases is improper because of the risks to DLP and LPA

of prejudice and jury confusion.

In Cruz, the trial court reasoned that prejudice would occur by

consolidating different cases involving emotionally charged but different

allegations of abuse to minors. The court explained:

By trying the two matters together, the jury might wrongly

conclude that the defendants knew, or at least should have

known, of that prior assault. Upon hearing that a young girl was

previously assaulted by the same man who then assaulted another

young girl, a jury could be improperly swayed and/or confused by

such information. More likely, the defendants will be prejudiced

by such evidence, regardless of how this court instructs the jury

to view the evidence. Once a jury hears of the 1992/1993 assault,

knowledge of that incident might be imputed onto all of the

defendants, thereby prejudicing the defendants in relation to the

2002 incident. Therefore, this court cannot consolidate the

matters for trial.

Id., 78 D. & C. 4th at 80. If consolidation will prejudice any party, the court

should not order consolidation, even if the “commonality of law or fact

questions otherwise abounds.” Id. at 79; see also Garrity, 2020 WL

5074385, at *4 (finding that consolidation will prejudice defendants because,

inter alia, “the potential that a jury may impute certain facts from one case to

the other is too high for the Court to ignore”).

This same rationale defeats consolidation here. The trial court explained

in its Pa.R.A.P. 1925(a) Opinion that it believed consolidation of these cases

would promote judicial efficiency. The court stated that the four cases were

“bellwether cases” through which “the Court and parties could resolve

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common issues and motions in a manner that would better inform the parties’

actions moving forward on the remaining cases.” Pa.R.A.P. 1925 Opinion,

9/6/24, at 2. The court completely failed, however, to consider whether

consolidation would prejudice the defendants.

We believe that consolidation presents a distinct danger of prejudice to

DLP and LPA. The four lawsuits name different defendants and allege sexual

assaults over a sixteen-year period. The jury will have to keep track of what

evidence applied to what party during what period of time. This ultimately

may create the potential for errors to be made in terms of liability and

damages. Moreover, the jury’s sympathy will lie with the plaintiffs, because

they each will present emotionally charged accounts of heinous crimes that

they allegedly suffered as minors. Presenting four such cases in a single trial

will expose the defendants to the serious risk of guilt by association and also

raise the possibility that the jury will confuse which evidence applies to which

defendant. Although the plaintiffs suggest that the court will eliminate any

prejudice through limiting instructions, we are not confident that limiting

instructions will alleviate prejudice or promote judicial efficiency in such a

highly emotional setting. See Dashnaw v. Usen, 2006 WL 1742174, *4

(N.D.N.Y. 2006) (court denied consolidation of separate sexual harassment

actions brought by two plaintiffs against their employer and its employees; if

cases were consolidated, one plaintiff might bolster her claims by evidence

relating to the other plaintiff, thus prejudicing one of the individual defendants

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through “bootstrapping” and requiring “innumerable jury instructions just to

keep the jury from lumping the particular facts into one sum”).

Consolidation also is improper due to the risk of jury confusion. In Cruz,

the court observed that consolidation should not take place when it might

result in “over-complication of issues.” Id. at 79 (citing Limbert v. Sealview

Plastics Inc., 17 Pa. D. & C. 2d 785, 786 (1959)). Cruz went on to hold that

consolidation was improper because “[a] single jury, hearing both matters,

might be confused by the unusual and significant chronological separation

between the two alleged incidents.” Id. at 80. As stated above, one plaintiff

was allegedly assaulted in 1992-93, while the other was allegedly assaulted

in 2002.

The same danger of jury confusion exists here, perhaps to an even

greater degree that in Cruz. The trial court admitted that the four bellwether

cases “include[] stronger and weaker fact patterns against some or all of the

Defendants. The selected cases involved claims that spanned multiple years,

varied legal theories, and some or all of the Defendants.” Opinion at 3.

Moreover, there are six separate defendants in this lawsuit, each of whom

represents disparate time periods and discrete issues not universal to all

defendants. The claims brought by individual plaintiffs against each

Defendant are based on distinct sets of facts. A proposed special verdict form

under this scenario may necessarily be long and extraordinarily complex. All

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of these factors counsel against consolidation in the manner contemplated by

the trial court.

In sum, the prejudice and confusion that consolidation will cause leads

us to conclude that the order of consolidation constitutes an abuse of

discretion by the trial court. We therefore vacate the consolidation order as

to DLP and LPA and remand for further proceedings.6

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6 We also find it helpful to distinguish this appeal from Ball, the only other

Pennsylvania appellate decision we can find concerning the use of a bellwether

case procedure. In Ball, forty-five residents brought a toxic tort action against

a gasoline station and other affiliated businesses alleging that gasoline and

vapor from a widespread underground leak had entered their homes, causing

property damage and physical illness. The trial court issued an order severing

the cases of four bellwether plaintiffs for trial in reverse bifurcated fashion,

with exposure, causation and damages to be tried first followed by a separate

trial on liability, if necessary. The plaintiffs objected to the severance portion

of the order but not the bifurcation portion. The trial court determined that

severance would avoid prejudice, because

the Defendants would suffer by allowing the Plaintiffs to bolster

each individual claim with the mere fact that [forty-one (41)]

other claims had been filed (albeit with different injuries and

different property locations) … Clearly, the ‘spill-over’ effect of

dozens of Plaintiffs alleging exposure and claims of injury,

distress, disease, fear, and property damage would have had an

insurmountable prejudicial effect on the Defendants.

Id., 67 A.3d at 764 (citing trial court opinion). Following the exposure-

causation-damages trial, the jury found that none of the bellwether plaintiffs

had suffered injury or damages attributable to the gasoline leak. Our Supreme

Court held that the trial court acted within its discretion in severing the cases

and assigning four bellwether plaintiffs. The Court reasoned that the trial

court “carefully considered a host of factors relevant to determining whether

severance of the test cases was warranted under Rule 213(b) for convenience

and avoidance of prejudice.” Id. at 769.

(Footnote Continued Next Page)

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Order vacated as to DLP and LPA. Case remanded for further

proceedings. Jurisdiction relinquished.

5/26/2026

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The important distinction between Ball and the present case is that while the

trial court in Ball considered a “host of factors,” including prejudice, in

reaching its decision, the trial court herein failed to examine the question of

prejudice, which our Supreme Court has held is an essential criterion in the

consolidation analysis. See Balla, Azinger, supra.

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