Chiodetti, G. v. Fernandes, E

J-A21006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY CHIODETTI IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DR. EUGENE FERNANDES

Appellee No. 63 EDA 2013

Appeal from the Judgment Entered November 15, 2012

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): April Term, 2009; #0040

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED FEBRUARY 06, 2015

Gary Chiodetti appeals from the judgment entered in the Court of

Common Pleas of Philadelphia County in favor of Dr. Eugene Fernandes,

M.D., in this action for professional negligence. Chiodetti claimed Dr.

Fernandes’ negligence in injecting local anesthesia prior to eye surgery

caused him blindness in his right eye. A jury determined Dr. Fernandes had

not breached the standard of care in administering the injection. In this

timely appeal, Chiodetti raises five issues. He argues the trial court erred in

denying his post-trial motions, claiming trial court error in: (1) preventing

Chiodetti’s expert from testifying regarding a peer-reviewed article he had

authored; (2) permitting defense expert, Dr. Nicholas T. Iliff, M.D. to testify

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*

Retired Senior Judge assigned to the Superior Court.

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beyond the scope of his report, as well as presenting cumulative testimony;

(3) precluding him from arguing at closing that Dr. Fernandes had failed to

call a witness; (4) failing to preclude the use of trial exhibits that had not

been supplied to Chiodetti prior to trial; and (5) failing to preclude defense

expert, Dr. Jay S. Duker, M.D., from testifying when he was not timely

identified as a witness. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.

“Our standard of review [of an order] denying a motion for a new trial

is to decide whether the trial court committed an error of law which

controlled the outcome of the case or committed an abuse of discretion.”

Cangemi ex rel Estate of Cangemi v. Cone, 774 A.2d 1262, 1265 (Pa.

Super. 2001) (citation omitted).

Because Chiodetti’s claims of error involve evidentiary rulings,1 we also

note:

When we review a trial court ruling on admission of evidence, we

must acknowledge that decisions on admissibility are within the

sound discretion of the trial court and will not be overturned

absent an abuse of discretion or misapplication of law. In

addition, for a ruling on evidence to constitute reversible error, it

must have been harmful or prejudicial to the complaining party.

An abuse of discretion is not merely an error of judgment, but if

in reaching a conclusion the law is overridden or misapplied, or

the judgment exercised is manifestly unreasonable, or the result

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1

Chiodetti’s third claim, regarding his preclusion from making an adverse

inference argument in his closing, is best explained as an evidentiary ruling

as well.

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of partiality, prejudice, bias or ill-will, as shown by the evidence

or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).

Similarly, our standard of review regarding the admission of expert

testimony is:

Decisions regarding admission of expert testimony, like other

evidentiary decisions, are within the sound discretion of the trial

court. We may reverse only if we find an abuse of discretion or

error of law.

Cimino v. Valley Family Medicine, 912 A.2d 851, 953 (Pa. Super. 2006)

(citation omitted).

We adopt the relevant factual and procedural history as related in the

trial court’s Pa.R.A.P. 1925(a) opinion.2

On April 13, 2007, twenty-six-year-old Chiodetti presented at

the Frankford-Torresdale Emergency Room with injuries

sustained when he was assaulted in his neighborhood. A CT

scan revealed a displaced fracture of the orbit surrounding his

right eye, an injury referred to as an “orbital blow-out fracture.”

He was admitted with a diagnosis of closed orbital floor, nasal

fractures and facial lacerations, and was placed in the care of Dr.

Fernandes. On April 15, 2007, Dr. Fernandes operated on

Chiodetti’s right eye to repair the orbital fracture. On April 17,

2007, Chiodetti experienced loss of vision in that eye. On April

24, 2007, Chiodetti learned that the loss of sight in his right eye

is permanent.

On April 6, 2009, Chiodetti filed a complaint against Dr.

Fernandes and Frankford Hospital alleging that the blindness in

his right eye resulted from Dr. Fernandes’ negligence in

inadvertently injecting local anesthesia into Chiodetti’s eyeball

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2

The opinion was authored by the Honorable Mary Colins, in lieu of the trial

judge, the Honorable Gary DiVito, who retired.

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rather than into the surrounding orbit. The defendants denied

all claims of negligence. Defendant Frankford Hospital was

dismissed from the case on July 12, 2011, a few days before

trial.

Judge DiVito denied Chiodetti’s motion in limine to preclude

documents that Chiodetti claims were never provided to him.

See Order of July 14, 2011 (Control No. 10070081), April Term,

2009, No. 0040. On July 18, 2011, the first day of trial, the

Judge heard argument on Chiodetti’s two other motions in limine

regarding expert testimony. He denied Chiodetti’s motion to

preclude the evidence and testimony of Jay S. Duker, M.D., a

retinal expert, on the ground that he found that Chiodetti

suffered no prejudice as a result of Fernandes’ late retention of

the expert originally retained by the now-dismissed hospital

defendant.[3] Judge DiVito denied Chiodetti’s motion to preclude

evidence from Nicholas T. Iliff, M.D., eye surgeon, on the same

grounds, namely lack of prejudice.

Chiodetti’s expert, Marvin F. Kraushar, M.D., an ophthalmologist

with a specialty in the retina, testified that the standard of care

when administering anesthesia to the eye requires a surgeon to

verify the location of the needle by moving it in such a way to

ensure that its tip is not inside the eyeball itself before injecting

the medication. He opined that since Dr. Fernandes did not use

this method – referred to in the case as “wiggling” the needle –

he inadvertently injected anesthesia into the eye and that the

pressure from this additional fluid cut off the blood flow to the

retina, causing Chiodetti’s blindness. During Dr. Kraushar’s

testimony, Judge DiVito sustained an objection on hearsay

grounds from defense counsel to testimony that an article

authored by Dr. Kraushar was peer reviewed.

Dr. Fernandes testified on his own behalf and denied that he

perforated the globe (eyeball) or that his injection method fell

below the standard of care. Dr. Fernandes presented the

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3

Judge DiVito was incorrect in stating Dr. Duker had been previously

retained by Frankford Hospital; Drs. Iliff and Nicholas Volpe were Frankford’s

experts. However, Dr. Duker specifically adopted Dr. Volpe’s conclusions.

See Duker Report, 4/18/2011, at 3, discussed on pages 21-22. Accordingly,

the opinion did not change from one expert to the next.

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testimony of two experts. The first of these was Jay S. Duker,

M.D., an ophthalmologist specializing in medical and surgical

treatment of the retina. Dr. Duker concluded that upon review

of all the pertinent records that Dr. Fernandes administered

anesthesia to Chiodetti properly. Further, he rejected Dr.

Kraushar’s articulation of the standard of care – “wiggling” the

needle to verify that it had not perforated the globe – stating,

“[t]hat’s a particularly bad idea” that it is based on procedure

long ago recognized as presenting unacceptable risk of injury.

He also said that it was “highly unlikely” that Dr. Fernandes

actually perforated the globe.

Dr. Fernandes’ other expert, Nicholas T. Iliff, M.D., is an

occuplastic eye surgeon (a surgeon who addresses “problems

around the eye that includes some of the difficulties right on the

surface of the eyes, but particularly trouble with the eyelids, the

bones around the eyes, the tear drain system, the tissues behind

the eyes.”) Dr. Iliff testified that Dr. Fernandes met the

standard of care by directing the needle toward the bone of the

orbit, away from the globe in order to reduce risk of perforation.

Like Dr. Duker, Dr. Iliff testified that Dr. Kraushar’s proposed

“wiggle” method is not the standard of care and that it is a

method that poses undue risk of injury. Dr. Duker also testified

extensively on the possible other causes of [] Chiodetti’s

blindness, many of which could not conclusively be ruled out.

…

During closing argument, the judge sustained [Fernandes’]

objection to Chiodetti’s attorney’s reference to Dr. Fernandes’

failure to present the testimony of Dr. Arunan Sivalingam,

Chiodetti’s treating doctor at Wills Eye Hospital, despite Dr.

Fernandes’ counsel’s apparent promise during openings to do so.

The Judge did not offer the basis for his ruling.

Trial Court Opinion, 3/24/2014, at 2-5 (citations to record and footnote

omitted).

Based on the foregoing, Chiodetti’s first claim is that the trial court

erred in precluding his expert, “Dr. Marvin Kraushar, M.D. from testifying

that an article he wrote , establishing the standard of care, had been peer

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reviewed and published[.]” Chiodetti’s Brief at 5. Although we believe the

trial court’s ruling was not thoroughly explained, we agree with the result.

On July 18, 2011, during direct examination, Dr. Kraushar was asked

to comment upon a paper he co-authored with two other doctors in 1995.

The title of the paper was “Prevention of Accidental Intraocular Injection

Following Inadvertent Needle Perforation of the Eyeball.” See N.T. Trial

7/16/2011, at 152. After Dr. Fernades’ counsel objected to the introduction

of the article, this discussion took place at sidebar:

[Dr. Fernandes’ Counsel]: First off, Pennsylvania is not adopting

the treatise exception to the hearsay rule.

Secondly, this is clearly bolstering the witness’ testimony.

We’re on direct examination.

[Chiodetti’s Counsel]: This is about establishing standard of care

for the doctor. This article is exactly about his peer reviewed

article, 1995, this procedure, it talks about it. So unless they’re

going to agree this is the standard of care, it’s a peer reviewed

article establishing the standard of care.

THE COURT: I don’t have a problem about an article he wrote,

he wrote an article about the subject –

[Chiodetti’s Counsel]: It’s not just something he wrote, not just

him putting it out there –

THE COURT: It’s hearsay because you cannot cross-examine on

the peer review.

[Chiodetti’s Counsel]: But it’s not just him –

THE COURT: No.

[Chiodetti’s Counsel]: - his colleague said it’s accepted.

THE COURT: I will not allow it.

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N.T. Trial, 7/18/2011, at 151-152.

The trial court’s ruling was based on the fact that the peer reviewers

were not available for cross-examination.4 This presumes that the

declarants, as referred to in the definition of hearsay,5 were the peer

reviewers, not the authors of the article, one of whom was Dr. Kraushar who

was assuredly available for cross-examination. This presumption is

confirmed by Chiodetti’s counsel’s previously quoted argument that the peer

reviewed article, describing the technique testified to by Dr. Kraushar,

established the standard of care. Therefore, the truth of the matter asserted

was that the peer review certified the described technique as the standard of

care.

In this context, the trial court’s ruling prohibiting reference to the peer

review as hearsay was correct. Those who purportedly certified the

procedure as the standard of care were unavailable to testify as to the basis

of their conclusion.

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4

We note the trial court did not sustain the objection on the basis of the lack

of a hearsay exception for learned treatises. See Ohlbaum on the

Pennsylvania Rules of Evidence, § 703.14.

5

See Pa.R.E. 801, defining hearsay in relevant part as a statement that he

declarant does not make while testifying at the current trial and which is

offered to prove the truth of the matter asserted in the statement.

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Additionally, because of the terseness of the trial court’s ruling peer

review was hearsay,6 we also find that even if the trial court erred in

precluding the proposed testimony, it was harmless error.

The definition of standard of care has recently been discussed by our

Supreme Court:

…the standard of care of physicians in Pennsylvania was an

objective one. That is, “physicians must have and employ the

same skill and knowledge typically used by physicians in the

medical profession, and must keep themselves informed of

contemporary developments in the profession.”

Passarello v. Grumbine, 87 A.3d 285, 298 (Pa. 2014) (citation omitted).

Further,

The Committee [on Proposed Standard Civil Jury Instructions]

established a basic instruction for a physician's standard of care

in a medical malpractice case that remains in effect today: “A

physician must have the same knowledge and skill and use the

same care normally used in the medical profession. A physician

whose conduct falls below this standard of care is negligent.” Pa.

SSJI (Civ) 14.10 (4th ed. 2011).

Id.

Accordingly, standard of care is established by evidence of the general

standards of care, skill, and knowledge employed by similar medical

professionals. Dr. Kraushar testified extensively regarding the standard of

care. The jury heard his opinion and the basis for that opinion. The jury

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6

Because argument on this issue was cut off, the record may not be fully

developed as to the offered meaning of peer review. We believe peer review

may be better described as confirmation that the peer reviewed article

conforms to proper scientific methodology rather than as certification of the

accuracy of the conclusions of the article.

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heard that he had published a book on the treatment of eyes including the

topic at issue, had been invited to speak at a variety of medical conferences

on the topic, and currently used the procedure he advocated in his own

practice at the Scheie Eye Institute. The jury was adequately informed of

Dr. Kraushar’s opinion regarding the standard of care and we cannot discern

how prejudice accrued from the inability to testify that he had published a

peer reviewed article on the procedure. Even accepting for the sake of

argument, that there was error in completely prohibiting Dr. Kraushar from

referencing his article, Chiodetti suffered no prejudice.7

In light of the foregoing, Chiodetti is not entitled to relief on this issue.

Chiodetti’s second claim is that the trial court erred in permitting

defense expert Dr. Nicholas Iliff, to present cumulative testimony and to

testify beyond the scope of his report.8 We will address the second aspect of

this issue first.

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7

The fact that the article did not, by itself, set the standard of care, should

not necessarily have prevented Dr. Kraushar from referencing the fact that

he had written a published article on the very subject at issue in the trial.

The trial court was willing to allow the doctor to say he had published an

article. As long as there was no attempt to assert extra meaning to the

article, a general prohibition against referencing the article appears to be

overbroad. There would be no obvious prohibition from informing the jury

about Dr. Kraushar’s peer reviewed article when describing his credentials as

an expert witness.

8

In his brief, Chiodetti also argues he sought to preclude Dr. Iliff from

testifying on the basis of unfair surprise, namely, Dr. Fernandes had not

previously named Dr. Iliff as an expert witness. Dr. Iliff was known to

(Footnote Continued Next Page)

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We agree with Chiodetti that Dr. Iliff testified beyond the scope of his

report when he changed his opinion regarding the causation of Chiodetti’s

blindness. However, the jury determined that Dr. Fernandes had not been

negligent; therefore, in general, any error regarding causation would not

affect the verdict. See Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013)

(where jury in medical negligence case finds no negligence, errors regarding

causation will not affect verdict).

Nonetheless, it is possible that theories of negligence can overlap into

causation. Therefore, we must examine the nature of standard of care

testimony provided at trial to insure the improper aspects of Dr. Iliff’s

testimony did not support the negligence testimony, and, as such, affect the

verdict.

_______________________

(Footnote Continued)

Chiodetti because he was named as one of Frankford Hospital’s witnesses.

Chiodetti claims he preserved the claim of unfair surprise in his motion in

limine, filed 6/30/2011. See Chiodetti’s Brief, at 17. The motion in limine

only objects to the alleged cumulative nature of Dr. Iliff’s proposed

testimony. Because the motion in limine was filed prior to Frankford

Hospital being released from the case, he could not have argued surprise

therein. The issue of surprise was raised orally on the morning of trial, and

Judge DiVito allowed Dr. Iliff to testify because the substance of his

proposed testimony was known to Chiodetti and so there would be no

prejudice. Chiodetti has not developed this aspect of the claim, and so we

consider it waived. See Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa.

Super. 2014) (“arguments which are not appropriately developed are

waived” and “[m]ere issue spotting without analysis or legal citation to

support an assertion precludes our appellate review of [a] matter.”)

Moreover, we discern no abuse of discretion in Judge DiVito’s ruling.

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Chiodetti’s expert, Dr. Marvin F. Kraushar, testified that Dr. Fernandes’

treatment fell below the accepted standard of care when, during the

administration of local anesthesia, he failed to use the “wiggle maneuver” of

ensuring the needle tip was not within the orb of the eye, and thereafter

injecting the anesthetic solution into the eye, rather than next to the eye.

Specifically, Dr. Kraushar testified:

Once the needle is in the orbit and where the needle is supposed

to be outside the eye, it doesn’t take very much time to move

the syringe like this or like this (witness indicating). And you’ll

see that the eye moves, that tells you you’re in the eye, and you

don’t want to do that.

And that’s all it takes, a couple seconds to do this, a couple

seconds to do that, you’re not moving the eye around. It’s just

a like a little – you go like this, like this, and then like this, and

you know you’re not in the eye, then you can give the injection.

If that moves with you, you know you’re in the eye and you have

to pull the needle out and get a retina doctor to examine that

patient to make sure you haven’t torn the retina.

* * *

It is an accepted risk of giving this type of injection to a patient

and accidentally sticking the needle in the eye.

What is unacceptable is not knowing that the needle is in the eye

before you give the injection, and that could be avoided by such

a simple maneuver to avoid complications, okay.

N.T. Trial, 7/18/2011, at 135-37.

On cross-examination, Dr. Kraushar admitted that the wiggle method

was not the only standard of care for the administration of anesthesia via

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injection and that Dr. Fernandes’ expert, as well as an accepted group of

other doctors, supported this contrary belief.

Q: You’re aware that he [Dr. Duker, one of Dr. Fernandes’

expert witnesses] has issued a report in this case in which he

opines Doctor Fernandes used the appropriate technique to give

the local anesthesia, correct, sir?

A: Yes.

Q: You are also aware that in response to your report, you

further – he issued a – strike that.

You’re aware of Doctor Iliff from Baltimore, the Wilmer

Institute --

A: Yes.

Q: - has also written a report, reviewed in this case,

indicating Doctor Fernandes used the appropriate technique and

met the standard of care, sir? You are aware of that, correct sir?

A: Yes.

Q: You’re aware that Doctor Iliff also issued a report that said

your so-called wiggle maneuver is not the standard of care,

correct, sir?

A: Yes.

Q: Dr. Iliff had said specifically, the wiggle maneuver is not

the standard of care. You’re aware of that, sir?

A: Yes.

Q: You’re aware that there are ophthalmologists out there

who opine the wiggle maneuver is not the standard of care,

correct, sir?

A: Yes.

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Q: Would you say there is an accepted group of doctors out

there who would opine your wiggle maneuver is not the standard

of care?

A: Yes.

Q: There is a school of thought out there that the wiggle

maneuver is not the standard of care, correct, sir?

A: I can’t keep answering yes to all these questions without

being able to qualify them.

Q: Well –

A: I’ll be happy to answer your question, but I can’t keep

saying yes without –

THE COURT: Doctor, your counsel will have the opportunity

to redirect.

A: Okay. Yes.

Id. at 209-11.

The jury’s verdict that Dr. Fernandes did not breach the standard of

care is fully supportable by this admission alone. Although Dr. Kraushar

attempted to qualify his response regarding any other appropriate standard

of care, he did not do so on redirect. Therefore, Dr. Kraushar’s testimony

indicated there were other methods of properly injecting local anesthesia

without identifying what those methods were or how Dr. Fernandes violated

those standards. That void in evidence was filled by Dr. Fernandes’ experts’

testimony.

Dr. Fernandes produced two experts who gave similar opinions

regarding the applicable standard of care. First, Dr. Jay S. Duker, provided

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specific testimony on the procedure Dr. Fernandes used to inject the local

anesthesia and why that procedure met the standard of care. See N.T.

Trial, 7/20/2011, at 26-36. Dr. Duker was then asked to comment upon the

wiggle maneuver.

Q: Doctor, we’ve heard from plaintiff’s expert that when

administering the local anesthesia, after the doctor puts the

needle to a location where he wants to administer anesthesia,

there is an obligation on behalf of the doctor to wiggle that

needle tip to ensure it’s in the location he intends prior to

injecting the anesthesia? It’s what I’ve been referring to as the

wiggle maneuver.

A: No, that’s a particularly bad idea.

Q: All right. Now, first off, is that so–called wiggle maneuver

the standard of care in peribulbar injections?

A: Not now and not at the time the surgery was done.

Q: Okay. Explain that for the jury.

A: There was, about 25 to 30 years ago, a rash of

perforations of the globe during ophthalmic surgery and most of

it was technique related.

And at the time what was happening is, surgery was

moving from hospitals to surgery centers and the

anesthesiologists were doing the anesthesia. And some of them

were not completely trained and there were globe perforations.

And so people published techniques to try to tell the less

experienced doctors how to prevent this. And that was

published I think about 20 or 25 years ago, going in with the

needle and wiggling it a little and if the eye moved, it means you

were in the eye.

It rapidly lost favor or never really became accepted for a

couple of reasons. First of all, if most of the perforations of the

eye are actually double perforations where you go in and then

out the back, number one. Number two, they’re getting more

and more rare because the techniques are getting really refined.

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The third reason is there’s blood vessels in this area and that

needle is sharp and if you go in there and you go like this, you

can lacerate the blood vessels and cause a big hemorrhage. And

a big hemorrhage behind the eye is just as big a complication as

a needle in the eye.

So, basically, that is not a technique we teach anymore,

and it’s no longer or probably never was the standard of care.

Q: Okay. Dr. Kraushar came before this jury and identified

that he has written an article. I believe the date was 1996

where he describes that wiggle maneuver. Is it your opinion

that that is not the standard of care as of the time of this

surgery?

A: That’s correct. It is not the standard of care.

* * *

Q: Now, plaintiff’s expert told this jury perforation of the

globe with the needle is an accepted risk of peribulbar

anesthesia, however, actually injecting the anesthesia into the

globe is not acceptable because you have to wiggle it first. Do

you have a response to that?

A: All of these occurrences are really rare and they are known

complications, both the perforation of the eye and injection into

the eye, and hemorrhage behind the eye and hitting the optic

nerve. These things often happen, but they happen rarely. [sic]

In my opinion none of them necessarily are negligent. As

long as the technique was done correctly, it essentially means a

rare technique – a rare mishap that happened not due to

technique, but because of some other reason.

Q: I want to spend just a moment there and distinguish for

the jury the difference between a known complication and

negligence.

A: Unfortunately, doctors are human, and the human body

doesn’t always heal the way we want it to heal. And so you can

do ten surgeries on ten patients and do exactly the same

technique, exactly every time and it will work nine times, but it

won’t work the tenth and we can’t necessarily explain why.

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So, if you’ve got a procedure that has known reported

complications and you follow all the technique correctly during

that procedure and you get a complication, that’s why your

doctor gives you a form consent before the surgery, to tell you,

look, these things can happen. And even if I do the best job I

can do, something bad may still happen.

N.T. Trial, 7/20/2011, at 37-42.

On July 21, 2011, Dr. Fernandes’ second expert, Dr. Nicholas Taylor

Iliff, testified that Dr. Fernandes had met the standard of care when

injecting the local anesthesia. Dr. Iliff described the method used by Dr.

Fernandes and the reasons why that procedure represented the standard of

care. He concluded his discussion of Dr. Fernandes’ technique, stating:

And what’s done is to delineate exactly where the end of the

needle is to actually hit the bone under the eye so you know

where it is. Because if you hit the bone, it’s something hard, if

you’re putting a needle in around the eye, there are soft tissues

that make it hard to tell exactly where the needle is.

So what you do is you advance the needle away from the eye

downwards and out until you hit the bone that tells you exactly

where the needle is. And then you back it up a little bit because

it’s hard to inject when it’s pushing up against the bone. You

back it up a little bit and give the injection.

During the injection there are some things that you look for that

lets you know that the injecting is going the way you expect it

to, and that is how the tissues swell, how hard it is to inject and

so forth.

And all those things were done and Doctor Fernandes stated this

is how he did it, and this is what he knows. And for those

reasons I felt the injection was done completely within the

standard of care.

N.T. Trial, 7/21/2011, at 24-25.

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Dr. Iliff was then asked about the wiggle maneuver that had been

advocated by Dr. Kraushar as the standard of care.

There are problems with that [use of the wiggle maneuver and

why it is not the standard of care]. In a normal situation … let’s

say a person is having cataract surgery and they haven’t had an

injury, they don’t have any swelling, they haven’t had any

bleeding, when you put the needle in you have some risk of

hitting a blood vessel, of hitting a muscle, or hitting a nerve

even. Even some risk of hitting the eye.

And what you try to do is place the needle so it causes the least

trauma, the least likely to cause any injury to any of those

structures.

In a traumatized orbit, such as was the case here, things are

swollen. The vessels are swollen. The blood vessels are bigger

than normal. Things aren’t necessarily exactly in the right place,

but they’re more sensitive to any kind of trauma.

So even more important, when you place the needle you move it

as little as possible. You move it straight in to where you want

it. In this case it was necessary to back it up a little bit and give

the injection.

If you wiggle it side by side, the front of the needle is actually

quite sharp and you can lacerate blood vessels, cause significant

bleeding. Even if you have hit the eye you can lacerate the side

of the eye and cause more damage.

So my feeling is it’s a bad idea. I was certainly never taught to

do that and we don’t teach people to do that at Johns Hopkins.

And so I feel that it is not really what you should do.

Id. at 26-27.

The foregoing represents the essence of the testimony from Chiodetti’s

and Dr. Fernandes’ experts. The testimony of all three is clear, concise and

self-contained. The testimony regarding the standard of care in

administering local anesthesia to the ocular orbit by injection was not

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dependent upon other evidence of causation. Moreover, Dr. Kraushar

admitted in testimony that other doctors believed the wiggle maneuver was

not the only standard of care. Drs. Duker and Iliff described a different

accepted methodology and opined that Dr. Fernandes followed that standard

of care, while explaining why they disagreed with the wiggle maneuver.

Therefore, the jury’s determination that Dr. Fernandes was not

negligent and had not breached the standard of care was supportable based

on the consideration of all of the evidence regarding the standard of care by

itself. Even if Chiodetti’s blindness in the one eye was the result of an

injection of anesthesia into his eye, based upon the testimony of Drs. Duker

and Iliff, the jury could still believe there was no negligence in the failure to

wiggle the needle. Additionally, the verdict form, filled out by the jury,

clearly indicted negligence and causation were separate considerations and

that if the jury found no breach of the standard of care then it was not to

consider causation. See Jury Verdict Form. This form reflected the

instructions given to the jury by the trial judge, who did not link evidence of

causation with the determination of breach of standard of care. Accordingly,

we see no reason to suppose the jury’s determination was tainted by Dr.

Iliff’s improper testimony regarding causation.

The second aspect of this claim, that Dr. Iliff’s testimony was

improperly cumulative, also fails. In his brief, Chiodetti only argues the

causation aspect of Dr. Iliff’s testimony as cumulative. Because the jury did

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not reach causation, any error in that regard was harmless. See Lykes v.

Yates, supra.

Chiodetti’s third argument is that the trial court erred in precluding

him from remarking in closing argument, that Dr. Fernandes had failed to

present the testimony of Chiodetti’s subsequent treating physician, Dr.

Sivalingham, despite stating he would do so in the opening statement.

Specifically, Chiodetti asserts:

[Dr. Fernandes] ardently argued in closing that the records of

Dr. Sivalingham was the “smoking gun” relieving [Dr.

Fernandes] of liability. [Chiodetti] should have been permitted

to draw the jury’s attention to the fact that the defense rested

his case on Dr. Sivalingham, but did not elicit his testimony.

Chiodetti’s Brief, at 23. Chiodetti’s claim fails for multiple reasons.

First, a review of closing argument on behalf of Dr. Fernandes

indicates the references to Dr. Sivalingham addressed causation, not

standard of care. Because the jury never reached the issue of causation,

any such error was irrelevant. Lykes, supra.

Next, Chiodetti was essentially seeking an adverse inference from the

failure to produce Dr. Sivalingham. However, Dr. Sivalingham was equally

available to both parties as a witness. An adverse inference is not available

when the witness is available to both parties. Kovach v. Soloman, 732

A.2d 1, 8 (Pa. Super. 1999).

Chiodetti is not entitled to relief on this issue.

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In his fourth issue,9 Chiodetti argues the trial court erred in permitting

defense expert, Dr. Jay Duker, to testify even though Dr. Fernandes did not

identify Duker or provide his expert report until well past the expiration of

the discovery deadline.

The trial court should consider the following factors when

determining whether or not to preclude a witness from testifying

for failure to comply with a discovery order:

(1) the prejudice or surprise in fact of the party against

whom the excluded witnesses would have testified,

(2) the ability of that party to cure the prejudice,

(3) the extent to which waiver of the rule against calling

unlisted witnesses would disrupt the orderly and efficient

trial of the case or of cases in the court,

(4) bad faith of [sic] willfulness in failing to comply with

the court's order.

Jacobs v. Chatwani, 922 A.2d 950, 961-62 (Pa. Super. 2007) (citation

omitted).

Considering these factors, Chiodetti is not entitled to relief. While it is

true that Chiodetti did not know Duker’s name in a timely fashion, the

opinion Duker espoused was certainly known. Frankford Hospital originally

retained Dr. Nicholas J. Volpe to testify on its behalf. Dr. Fernandes

____________________________________________

9

This was the fifth listed issue in Chiodetti’s statement of questions

involved, see Chiodetti’s Brief at 5-6, but was the fourth issue in the body of

the brief. We are addressing the issues in the order they appear in the body

of the brief.

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intended to rely upon Frankford Hospital’s experts in his defense. It is

undisputed that Dr. Volpe’s report was supplied to Chiodetti in a timely

fashion. After the discovery deadline passed, it became obvious to Dr.

Fernandes that the hospital would be released, therefore, Dr. Duker was

retained in the event Dr. Volpe would not testify.

Dr. Duker’s identity and report were supplied to Chiodetti no later than

April 21, 2011, approximately three months prior to trial. See N.T. Trial,

7/18/2011, at 32. Importantly, Dr. Duker specifically adopted Dr. Volpe’s

positions regarding Dr. Fernandes’ liability. Further, the trial court noted,

and the certified record confirms, that Dr. Kraushar received Dr. Duker’s

report with sufficient time to author a rebuttal. Id. at 31. We fail to see

how Chiodetti can credibly claim surprise when his expert authored a report

addressing the “surprising” opinion.

The record further reflects that there was no disruption of the orderly

process of the trial.

The only remaining factor to consider is whether Dr. Fernandes

willfully ignored the discovery deadlines. The trial court concluded that

Chiodetti suffered no prejudice. Id. at 33-34.10 We agree.

____________________________________________

10

Specifically, the trial court stated, “Well, I attribute that motive to them

[seeking to present expert opinion after discovery deadline without seeking

extraordinary relief], but I don’t necessarily accept that. Counsel has

strategy. I’m not really interested in strategy. What I’m interested in is

whether or not you were prejudiced by that. You have an expert report on

(Footnote Continued Next Page)

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The certified record reflects that Chiodetti had ample time to consider

and respond to Dr. Duker’s report. The substance of Dr. Duker’s opinion

was known to Chiodetti through Dr. Volpe’s report, which was issued in a

timely fashion. Accordingly, we find no abuse of discretion in the trial

court’s decision allowing Dr. Duker to testify.

Chiodetti’s final claim is that the trial court erred in allowing Dr.

Fernandes to use demonstrative evidence without having supplied those

exhibits as part of mandatory pre-trial discovery exchange. Specifically,

Chiodetti refers to anatomical illustrations of the eye. Chiodetti does not

complain that the exhibits were inaccurate. His claim is that he was

prejudiced by defense experts referring to accurate depictions of the eye to

illustrate their testimony.

The trial court opinion notes that the trial judge did not explain his

reasons for denying Chiodetti’s pre-trial motion to preclude. However, the

trial court opinion points out that when the illustrations were actually used at

trial, Chiodetti made no specific objection to their use.

Based on or review, we find the motion in limine preserved the issue,

and further conclude Chiodetti has failed to demonstrate how he suffered

any prejudice from the jury seeing an accurate depiction of the eye.

Regarding other trial exhibits, we note that Chiodetti was presented with a

_______________________

(Footnote Continued)

rebuttal. So, frankly, I’m not going to preclude it based on possibly

negligence – rather prejudice per se.”

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list of the exhibits Dr. Fernandes might use, which included such items as

Chiodetti’s work records, his medical records, and answers to

interrogatories. Chiodetti presumably possessed the majority of the

proposed exhibits. Chiodetti has not claimed, much less demonstrated, any

prejudice he suffered from the introduction of any other of Dr. Fernandes’

trial exhibits. Accordingly, he is not entitled to relief on this issue.

Judgment affirmed.

Judge Strassburger joins this memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/6/2015

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