Lloyd, S. v. Bell, K.

J-A05030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA S. LLOYD AND ROBERT LLOYD, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

KEVIN J. BELL AND CLARENCE D. BELL,

JR.,

Appellees No. 1807 EDA 2014

Appeal from the Judgment entered May 13, 2014,

in the Court of Common Pleas of Chester County,

Civil Division, at No(s): 11-02039

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN: FILED MARCH 03, 2015

Spouses Sandra S. and Robert Lloyd, (“Mrs. Lloyd”, or collectively,

“Appellants”), appeal from the judgment entered against them and in favor

of Kevin J. Bell, (“Bell”)1. We affirm. Further, we deny Bell’s motion to

quash and/or dismiss this appeal for the reasons cited below.

In disposing of a prior appeal in this matter, we detailed the following

factual and procedural background:

On February 27, 2009, [Mrs.] Lloyd was involved in a motor

vehicle accident when Bell rear-ended the car [Mrs.] Lloyd was

driving. The parties dispute the force of impact. [Mrs.] Lloyd’s

airbag did not deploy, and her car was driven from the scene of

the accident. However, [Mrs.] Lloyd subsequently testified that

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1

As noted below, by stipulation of the parties, Clarence D. Bell, Jr., was

dismissed from this action prior to the commencement of trial and is not

involved in this appeal.

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the car was totaled. Following the accident, [Mrs.] Lloyd

received treatment for neck and back pain. Thereafter,

[Appellants] initiated this action, asserting [Mrs.] Lloyd suffered

injuries in the accident.

A jury trial commenced. [FN2: Prior to the

commencement of trial, Bell’s father and co-defendant, Clarence

D. Bell, was dismissed from this action by stipulation.] Bell

admitted negligence at trial but disputed [Mrs.] Lloyd’s claim of

injury, as [Mrs.] Lloyd had an extensive, pre-accident medical

history of back and neck problems.

The parties’ medical experts agreed that there was no

objective evidence that the accident exacerbated [Mrs.] Lloyd’s

physical condition. However, Jeffrey Friedman, M.D., who

testified on behalf of [Appellants], opined that [Mrs.] Lloyd

suffered from myofascial pain syndrome and fibromyalgia. Dr.

Friedman acknowledged that [Mrs.] Lloyd’s pain complaints were

subjective, but he concluded that the accident had aggravated

her condition.

Bell’s medical expert, David Glaser, M.D., disputed Dr.

Friedman’s diagnosis, suggesting that [Mrs.] Lloyd’s symptoms

were more appropriately explained by her pre-existing back and

neck conditions. Notes of Testimony (N.T.), 10/2/12, at 71-72.

Dr. Glaser also testified, in part, as follows:

Q: All right. Doctor, after the accident, you looked at a

copy of the emergency department records, correct?

A: I did.

Q: Could you tell us about that?

A: The emergency room records basically documented I

think what you all heard about, that she was driving, the

car hit from behind, she came in hours later. It diagnosed

her with having cervical sprain. Also mentioned the

shoulder contusion. There was some bruising as well

mentioned.

Id. at 60-61. Thereafter, Dr. Glaser acknowledged that the

“scrapes or contusions” seen in the emergency room “maybe”

were objective findings of injury. Id. at 68. Dr. Glaser

summarized his conclusions in the following manner:

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Q: Doctor, at the time you saw Mrs. Lloyd in 2012, do you

have an opinion as to whether she was suffering from any

accident related injury?

A: It was my opinion when I saw her she was not suffering

from any accident related injury within medical certainty.

…

Q: Even though there was nothing objective that you saw,

you leave open the possibility that [Mrs. Lloyd] could have

suffered an injury as a result of the accident?

[Appellants’ Counsel]: Objection. Leading.

T[rial] Court: Overruled.

Dr. Glaser: Yes.

Id. at 68-69 (formatting modified). In this context, Dr. Glaser

testified that it was “reasonable to consider” that [Mrs.] Lloyd

suffered a strain of her neck or back. Id. at 69. However, Dr.

Glaser testified further that no objective evidence of a strain

existed. Id. at 70. According to Dr. Glaser, strains that are not

viewable by MRI take approximately three months to heal. Id.

at 72. Dr. Glaser examined Lloyd on July 11, 2012, more than

three years after the accident. Id. at 45.

Following trial, the [trial court] instructed the jury on factual

cause. [Appellants] did not object to this instruction. However,

[Appellants] objected to the first jury interrogatory on the

verdict slip, which asked whether Bell’s negligence was a factual

cause in bringing about [Mrs.] Lloyd’s injuries. Counsel for

[Appellants] objected in the following manner:

[Appellants’ Counsel]: Secondly, we object to question

number one because we believe that [Bell’s] expert

testified there was some injury. And under those

circumstances, the case law is clear that the jury should

not be allowed to find that there was no injury in the case

because there’s injury coming from both experts in the

case.

Id. at 146. [The trial court] reviewed Dr. Glaser’s testimony and

overruled [Appellants’] objection. After deliberation, the jury

returned a verdict for the defense, answering the first

interrogatory in the negative, thus finding no causation.

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[Appellants] filed post-trial motions, alleging numerous

grounds for a new trial, including one that renewed [Appellants’]

objection to the verdict slip:

This Honorable Court committed prejudicial/harmful errors

of law and/or abused its discretion by permitting, over

objection, Question #1 of the Verdict Slip to permit the

jury to find that the negligence of [Bell] was not a factual

cause of harm to [Mrs.] Lloyd, where [Bell’s] medical

proof, including expert medical proof and [Appellants’]

medical proof, including expert medical proof, establish

that there was at least some injury to [Mrs.] Lloyd, caused

by the negligence of [Bell][.]

[Appellants’] Motion for Post Trial Relief, at 3. The trial court

granted a new trial on this ground, concluding that it had erred

in failing to instruct the jury that it must “award some type of

recovery.” See Order of Court, 2/11/13, at 2 n.1.

Lloyd v. Bell, 97 A.3d 799 (Pa. Super. 2014) (unpublished memorandum

filed February 14, 2014) at 1-5.

Bell timely appealed the trial court’s grant of a new trial, and

Appellants cross-appealed the trial court’s denial of the additional grounds

Appellants had raised for a new trial. We determined that Appellants’ cross-

appeal was not “properly before us” because the “trial court granted

[Appellants’] motion for a new trial, [and therefore, Appellants were] not …

aggrieved … and may not appeal the [trial] court’s order.” Id. at 2 citing

In re Estate of Pendergrass, 26 A.3d 1151, 1154 (Pa. Super. 2011) (“A

prevailing party is not ‘aggrieved’ and therefore, does not have standing to

appeal an order that has been entered in his or her favor.”) and citing

Pa.R.A.P. 501.

We further observed:

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According to Bell, the trial court erred in granting a new

trial because Dr. Glaser did not concede that Lloyd suffered an

accident-related injury. Rather, according to Bell, Dr. Glaser

merely acknowledged that it was possible Lloyd had suffered a

cervical strain. Bell contends that this distinction is significant

because an expert’s language regarding “possibilities” does not

establish the requisite degree of medical certainty, citing in

support Griffin v. Univ. of Pittsburgh Med. Ctr., 950 A.2d 996

(Pa. Super. 2008). Bell concludes that because Dr. Glaser did

not concede an injury to [Mrs.] Lloyd, the jury was free to return

a verdict of no causation. See Livelsberger v. Kreider, 743

A.2d 494 (Pa. Super. 1999); Henery v. Shadle, 661 A.2d 439

(Pa. Super. 1995), appeal denied, 668 A.2d 1133 (Pa. 1995).

Lloyd, supra, at 9-10.

In determining that the trial court erred in granting Appellants a new

trial, we explained:

Absent expert evidence conceding an injury to the plaintiff

that is sufficiently certain, the assessment of the jury must

prevail. [Criswell v. King, 834 A.2d 505, 512-513 (Pa. 2003)];

see also Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995)

(“[T]he jury is free to believe all, some, or none of the testimony

presented by a witness … up until the point at which [its] verdict

is so disproportionate to the uncontested evidence as to defy

common sense and logic.”). The trial judge must defer to this

assessment, decline to usurp the role of the jury as fact finder,

and deny the weight of evidence claim. Criswell at 512-13.

Accordingly, absent sufficient evidence, a trial court’s decision to

grant a new trial constitutes an abuse of discretion. Id.; see

also Huber, 58 A.3d at 775-777.

The question remains whether the defense conceded injury

in this case.

Where there is no dispute that the defendant is negligent

and both parties' medical experts agree the accident

caused some injury to the plaintiff, the jury may not find

the defendant's negligence was not a substantial factor in

bringing about at least some of plaintiff's injuries.

Andrews, 800 A.2d at 962 (citing Neison, 653 A.2d at 637);

see also Mano v. Madden, 738 A.2d 493, 497 (Pa. Super.

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1999). However, absent a concession of injury, “the fact finder

resolves conflicts in evidence.” Livelsberger [v. Kreider,] 743

A.2d [494,] 496 [(Pa. Super. 1999)] (distinguishing Neison);

see also Henery v. Shadle, 661 A.2d [439,] 442 [(Pa. Super.

1995)] (defense testimony acknowledging that plaintiff “may

very well have suffered” some injury did not constitute a

concession).

We have reviewed Dr. Glaser’s testimony in its entirety.

As we have set forth the relevant testimony above in detail, we

need not repeat it. Nevertheless, it is clear that Dr. Glaser

rejected Dr. Friedman’s diagnosis, concluding that [Mrs.] Lloyd

was not suffering from any accident-related injury when he

examined her. In his expert medical opinion, Dr. Glaser further

concluded that [Mrs.] Lloyd’s pre-existing conditions were

responsible for her ongoing discomfort. When asked on direct

examination whether it was “possible” that [Mrs.] Lloyd “could

have suffered an injury” in the accident, Dr. Glaser

acknowledged that it was “reasonable to consider” that [Mrs.]

Lloyd suffered a cervical strain. We conclude that Dr. Glaser’s

testimony fails to meet the requisite certainty to establish a

concession of injury. Griffin, 950 A.2d at 1003 (rejecting as

insufficient testimony suggesting the conduct of defendant’s staff

“more likely than not” caused an injury). Accordingly, Andrews

does not apply, and the case properly went to the jury to

determine causation. Livelsberger, 743 A.2d at 496.

In its order granting a new trial, the trial court indicated

that Dr. Glaser’s cross-examination testimony conceded an

injury to Lloyd’s neck. We find no support in the transcript for

this conclusion. The focus of Dr. Glaser’s cross-examination

testimony was upon the thoroughness with which he reviewed

[Mrs.] Lloyd’s medical history and his rejection of Dr. Friedman’s

diagnosis. Moreover, we disagree with the [trial] court’s

characterization of Dr. Glaser’s testimony to the extent it

concluded Dr. Glaser acknowledged a “probable neck strain.”

Dr. Glaser never testified to the probability of a cervical strain.

Nevertheless, testimony suggesting that an alleged injury was

“very highly probable” has similarly been rejected. Id. (citing,

e.g., Eaddy [v. Hamaty,] 694 A.2d [639,] 642 [(Pa. Super.

1997)] (rejecting an expert report that characterized an alleged

cause as “the most reasonable probability” for the injury).

The trial court also noted Dr. Glaser’s purported concession

that [Mrs.] Lloyd suffered scrapes and bruises. Again, we

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disagree. In recounting the manner in which he reviewed [Mrs.]

Lloyd’s medical records, Dr. Glaser merely acknowledged the

contents of the emergency room record, which mentioned “the

shoulder contusion,” “some bruising,” and a “cervical sprain.”

Dr. Glaser did not adopt the emergency room record as his

opinion, nor did he testify to a medical certainty that its contents

were correct. To the contrary, on cross-examination, Dr. Glaser

appeared to minimize such records’ importance, testifying that

the opinions of other doctors as contained in their reports are

“great to know,” but that “they confirm my opinions … they don’t

change my opinions.” N.T. at 83. Therefore, this testimony

does not constitute a concession of injury. Id.

After reviewing Dr. Glaser’s testimony in its entirety, we

discern no error in the [trial] court’s stewardship of this trial.

The trial court properly overruled [Mrs.] Lloyd’s objection to the

verdict slip interrogatory and properly submitted the question of

causation to the jury. Accordingly, mindful of our standard of

review, we must reverse the court’s order granting a new trial.

Huber, 58 A.3d at 776; Griffin; Criswell. On remand, the

parties may praecipe for the entry of judgment on the jury

verdict.

Lloyd, supra, at 13-16 (footnote omitted).

Appellants did not petition for allowance of appeal from our February

14, 2014 reversal of the trial court’s order granting Appellants a new trial.

Upon remand, on May 13, 2014, Appellants praeciped for the entry of

judgment. On the same date, judgment was entered in favor of Bell and

against Appellants. On June 11, 2014, Appellants filed a timely notice of

appeal. On June 16, 2014, the trial court ordered Appellants to file a concise

statement of errors complained of on appeal, which Appellants filed on July

2, 2014. On July 23, 2014, the trial court issued its Pa.R.A.P. 1925(b)

opinion which stated “[u]pon review of [Appellants’] statement, it appears to

be almost identical to the [c]oncise [s]tatement filed in the 2013 [a]ppeal,

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with some minor additions to the issues. As the issues are identical, I have

nothing to add to the June 5, 2013 Opinion I authored on Appellants’ 2013

[a]ppeal … and direct your attention to pages 7-10 [of the June 5, 2013

opinion].” Trial Court Opinion, 7/23/14, at 1.

On August 7, 2014, Bell filed a motion to quash and/or dismiss the

appeal, contending that Appellants’ “issues raised on appeal were decided

either directly or implicitly in the first appeal[.]” Motion to Quash and/or

Dismiss Appeal, 8/7/14, at 1. On September 15, 2014, Appellants filed an

answer to Bell’s motion. On October 3, 2014, we denied Bell’s motion

without prejudice to Bell to renew his request with this merits panel. Upon

consideration, we deny Bell’s motion to quash and/or to dismiss this appeal.

In our February 14, 2014 memorandum, we specifically determined that

Appellants’ issues could not be properly before us until Appellants became

aggrieved parties. See Lloyd, supra, at 16. Appellants became aggrieved

parties on May 13, 2014, following the entry of the judgment in Bell’s favor

and against Appellants. Therefore, we do not find that under the particular

circumstances of this case that Appellants are precluded from raising their

issues before this panel.

Appellants present the following issues for our review:

1. Whether the trial court prejudicially/harmfully erred and/or

abused its discretion by permitting defense counsel to cross-

examine [Mrs. Lloyd] by reading to the jury and exhibiting to the

jury by overhead screen projection for the jury's reading —

hearsay medical records of [Mrs. Lloyd] — where these medical

records were not admitted into evidence and included diagnostic

studies where the opinions and conclusions of the radiologists

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were read by defense counsel to the jury and exhibited by

defense counsel to the jury for their reading during cross-

examination?

2. Whether the trial court prejudicially/harmfully erred and/or

abused its discretion by permitting the defense medical expert to

testify as to the substance of any number of [Mrs. Lloyd’s]

medical records, both post and prior to the accident, where none

of those medical records were included in the defense expert

report, in violation of Pa.R.C.P. 4003.5 and further where

defense expert did not testify that he relied upon these hearsay

medical records for any basis of his medical opinions?

3. Whether the trial court prejudicially/harmfully erred and/or

abused its discretion by permitting the defense medical expert to

challenge the nature and legitimacy of the diagnoses of [Mrs.

Lloyd’s] accident-related injuries without any mention of these

diagnoses in the defense expert report, nor any mention of any

challenge as to the nature of these diagnoses in the defense

medical report, in violation of Pa.R.C.P. 4003.5?

4. Whether the trial court prejudicially/harmfully erred and/or

abused its discretion by permitting defense counsel to phrase

questions and make argument by reading, and/or exhibiting, the

substance of [Mrs. Lloyd’s] medical records, including diagnostic

records, predating the accident, as well as permitting the

defense medical expert to testify as to the substance of these

pre-accident records, where the defense medical expert

admittedly does not attribute any such past medical condition of

[Mrs. Lloyd’s] to [Mrs. Lloyd’s] post-accident medical condition?

5. Whether the trial court prejudicially/harmfully erred by

refusing to charge the jury on the Pennsylvania Standard Jury

instruction 7.90 (Civ. 4th Ed.) — Other Contributing Causes?

6. Whether the trial court prejudicially/harmfully erred by

refusing to remove the word "the" from the first jury

interrogatory; suggesting to the jury that they had to find one

specific set or version of the injuries as opposed to any injuries

or damage that they may have found from the totality of the

evidence?

Appellants’ Brief at 5-6.

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Appellants’ first, second, third and fourth issues challenge the trial

court’s evidentiary rulings which allowed Bell’s counsel to cross-examine

Mrs. Lloyd, and directly examine Bell’s medical expert, regarding, and in

reference to, Mrs. Lloyd’s pre-accident medical records and diagnoses, and

which allowed Bell’s medical expert to challenge Mrs. Lloyd’s post-accident

diagnosis of myofascial pain syndrome and fibromyalgia. In reviewing these,

we recognize:

[O]ur 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.

Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008), affirmed, 11

A.3d 924 (Pa. 2011) (citation omitted).

Additionally, we are mindful that:

The scope and manner of cross-examination are within the

sound discretion of the trial court and will not be overturned

unless the court has abused that discretion.

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Commonwealth v. Nunn, 947 A.2d 756, 761 (Pa. Super.2008)

(citations omitted), appeal denied, 947 A.2d 756 (Pa. Super.

2008). Further, we have generally defined the scope of cross-

examination to include “inferences, deductions, or conclusions

which may be drawn therefrom, which explain or destroy the

effect of direct testimony.” Nunn, 947 A.2d at 762 (citation

omitted). []

Pa.R.E. 611 provides in relevant part:

Mode and order of interrogation and presentation

(a) Control by [the] court. The court shall exercise

reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to

(1) make the interrogation and presentation effective for

the ascertainment of the truth, (2) avoid needless

consumption of time and (3) protect witnesses from

harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination of

a witness other than a party in a civil case should be

limited to the subject matter of the direct examination and

matters affecting credibility; however, the court may, in

the exercise of discretion, permit inquiry into additional

matters as if on direct examination. A party witness in a

civil case may be cross-examined by an adverse

party on any matter relevant to any issue in the

case, including credibility, unless the court, in the

interests of justice, limits the cross-examination with

respect to matters not testified to on direct examination.

Pa.R.E. 611(a) and (b).

In re M.W., 972 A.2d 1213, 1216 (Pa. Super. 2009) (emphasis supplied) 2.

Instantly, the trial court properly allowed references to Mrs. Loyd’s

medical records, her pre-accident medical history, and her prior diagnoses

____________________________________________

2

While the language of Pa.R.E. 611(a) was amended in 2013, and again in

2014, the version of Pa.R.E. 611 cited in In re M.W. was in effect at the

time of the trial in this case.

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during, inter alia, Bell’s counsel’s cross-examination of Mrs. Lloyd, and

during the testimony of Bell’s expert. A key contention at trial was the

nature, extent, and causation of Mrs. Lloyd’s post-accident injuries given her

“extensive, pre-accident medical history of back and neck problems.”

Lloyd, supra, at 3. We find that Mrs. Lloyd, in this personal injury action,

testifying as a “party witness in a civil case”, was subject to cross-

examination by Bell, “an adverse party,” regarding her pre-existing

conditions which were “relevant” to the issues in the case, and that said

examination properly included references to her prior medical records and

conditions. M.W., 972 A.2d at 1216; Pa.R.E. 611(b); see also American

Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa. Super. 2005)

(“Admission of evidence is within the sound discretion of the trial court and

we review the trial court's determinations regarding the admissibility of

evidence for an abuse of discretion.”).

Appellants’ own counsel during his opening statement commented on

Mrs. Lloyd’s prior medical history. Appellants’ counsel asserted that Dr.

Jeffrey Friedman, Appellants’ medical expert and one of Mrs. Lloyd’s treating

physician’s following the accident, would “testify that [Mrs. Lloyd’s] general

state of health was good” at the time of the accident. N.T., 10/1/12, at 18.

Appellants’ counsel further informed the jury that Mrs. Lloyd “had back

surgery 20 years ago, and she had recovered from that low back surgery …

She also had a condition that was diagnosed in 2005, and D[r]. Friedman

will talk to you about this.” Id. During Mrs. Lloyd’s direct examination, Mrs.

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Lloyd denied having “problems doing” household chores prior to the

accident. Id. at 53. She further testified that she “d[id]n’t recall having any

problems” before the collision. Id. at 56. While Mrs. Lloyd admitted

receiving a diagnosis and medication “[b]ack in 2006” for fibromyalgia, Mrs.

Lloyd testified that said condition “just kind of went away” and that she was

“[n]ot … aware of” suffering “from that fibromyalgia at all at the time of this

accident[.]” Id. at 57. Appellants’ counsel specifically asked Mrs. Lloyd

about her 2008 cervical “MRI by Doctor Haplea.” Id. at 57-58. When asked

if “any problems with [her] neck” were found, Mrs. Lloyd answered “[n]o.”

Id. at 58. When the trial court inquired “[a]re we going to have this covered

by Dr. Friedman’s testimony[,]” Appellant’s counsel replied “[y]es[,]” and

further expressed, “I’m anticipating it might be covered as well on cross[-

examination].” Id. at 58. Accordingly, we are not persuaded by Appellants’

arguments that Bell improperly relied on and referenced Mrs. Lloyd’s medical

records during Mrs. Lloyd’s cross-examination, especially when Bell’s

questions, inter alia, were germane to challenging Mrs. Lloyd’s credibility

regarding her recollection and understanding of her medical history, records,

and conditions. See generally id. at 66-90. Our assessment is further

buttressed by Appellants’ counsel’s indication to the trial court that during

his redirect examination of Mrs. Lloyd, he would be using Mrs. Lloyd’s

medical records “to the same extent [Bell’s counsel] used them on [cross-

examination].” Id. at 90.

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Further, based on our careful review of the record, we are not

persuaded by Appellants’ arguments that the trial court erred or abused its

discretion in allowing Bell’s expert to reference and be questioned about Mrs.

Lloyd’s prior medical records and conditions. We recognize:

A trial court is vested with wide discretion in deciding

whether to allow the admission of expert testimony into

evidence, and is not subject to reversal absent a clear abuse of

discretion. Allegheny Ludlum Corp. v. Mun. Auth. of

Westmoreland County, 659 A.2d 20 (Pa.Cmwlth.1995). Only

when the admission of the testimony is harmful or prejudicial to

the party complaining will reversible error exist. Id.

Discovery of information concerning expert testimony is

governed by Pa. R.C.P. No. 4003.5. That Rule states, in relevant

part:

[T]he direct testimony of the expert at the trial may not be

inconsistent with or go beyond the fair scope of his or her

testimony in the discovery proceedings as set forth in the

deposition, answer to an interrogatory, separate report, or

supplement thereto. However, the expert shall not be

prevented from testifying as to facts or opinions on

matters on which the expert has not been interrogated in

the discovery proceedings.

Pa. R.C.P. No. 4003.5(c). The explanatory comment to Rule

4003.5(c) explains the Rule is intended to “prevent the

submission of incomplete or ‘fudging’ of reports which would fail

to reveal fully the facts and opinions of the expert or his grounds

therefor[e]...” Pa. R.C.P. No. 4003.5(c), Explanatory Comment-

1978.

The primary purpose of the Rule is to avoid unfair surprise

to an adversary concerning the facts and substance of an

expert's proposed testimony. United States Mineral Prods. Co.

The question of whether the permissible limits of testimony

under the Rule were violated is determined on a case by case

basis, and the essence of the inquiry is fairness. Id. The

question is whether the discrepancy between the expert's pre-

trial report and his trial testimony is of a nature that would

prevent the adversary from preparing a meaningful response, or

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which would mislead the adversary as to the nature of the

appropriate response. Id. The opposing party must suffer

prejudice as a result of the testimony going beyond the fair

scope of the expert's report before admission of the testimony is

considered reversible error. Id.

Thus, in determining whether an expert's trial testimony

falls within the fair scope of his pre-trial report, a 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. Feden v. Consol. Rail Corp., 746 A.2d 1158

(Pa. Super. 2000). Under this analysis, an expert's trial

testimony may be found unobjectionable whenever it could

reasonably have been anticipated from the content of the

expert's pre-trial report. Butler v. Kiwi, S.A., 412 Pa.Super. 591,

604 A.2d 270 (1992). An expert's trial testimony that

constitutes a reasonable explanation or even an enlargement of

the expert's written words may be deemed to fall within the

coverage of “fair scope.” Hickman v. Fruehauf Corp., 386

Pa.Super. 455, 563 A.2d 155 (1989); Wilkes-Barre Iron v.

Pargas of Wilkes-Barre, 348 Pa.Super. 285, 502 A.2d 210

(1985).

Moreover, where a plaintiff introduces certain evidence in

his case-in-chief, he cannot later deprive his opposition of the

privilege of denying it. See Leaphart v. Whiting Corp., 387

Pa.Super. 253, 564 A.2d 165 (1989). Thus, an expert's opinion

offered in response to other testimony presented at trial need

not be addressed in the expert's report. Allegheny Ludlum;

Earlin v. Cravetz, 264 Pa.Super. 294, 399 A.2d 783 (1979).

Daddona v. Thind, 891 A.2d 786, 805-806 (Pa. Cmwlth. 2006).

Here, in rebutting Appellants’ claims of error, the trial court explained:

[Appellants] object to my rulings regarding the scope and

nature of Dr. Glaser's testimony.

Pa. R.C.P. 4003.5 governs resolution of these claims. Rule

4003.5(c) sets forth what is commonly referred to as the "fair

scope rule."

The rule:

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“…favors the liberal discovery of expert witnesses and

disfavors unfair and prejudicial surprise."

Jones v. Constantino, 631 A.2d 1289, 1294

(Pa. Super. 1993)

***

I invite your attention to N.T., October 2, 2012, pgs. 8-15,

where the scope of Dr. Glaser's anticipated testimony was

discussed. I also invite your attention to Dr. Glaser's report of

July 11, 2012, Exhibit D-10, "Records Reviewed” (p. 3) and

"Comments” (p. 4).

I believe that given [Mrs. Lloyd’s] medical history

which both parties had, it would come as no surprise to

experienced counsel that the defense would attempt to

use those records to show that [Mrs. Lloyd’s] current

complaints related to her prior history, not the incident.

Thus, the surprise element disfavored by the rule was not

violated.

[Appellants] also assert that Dr. Glaser's testimony

as to the contents of medical reports was impermissible

hearsay. Again, I disagree.

Expert witnesses, like any other witness, are subject to the

"hearsay evidence rule." What was said in Woodward v.

Chatterjee, 827 A.2d [433,] 444 [(Pa. Super. 2003)], is

applicable here:

As an exception to the rule against hearsay, “it is

well understood that medical experts are permitted

to express opinions which are based, in part, upon

reports which are not in evidence, but which are

customarily relied upon by experts in the practice of

the profession." Primavera v. Celotex Corp., 415

Pa.Super. 41, 608 A.2d 515, 518-19 (1992). We

recognize that a physician will often base his or her

diagnosis on information obtained through other

sources such as statements from patients, nurses'

reports, hospital records, and laboratory tests. Id. at

520. "The fact that experts reasonably and regularly

rely on this type of information merely to practice

their profession lends strong indicia of reliability to

source material, when it is presented through a

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qualified expert's eyes.” Id. "[W]hen the expert

witness has consulted numerous sources, and uses

that information, together with his own professional

knowledge and experience, to arrive at his opinion,

that opinion is regarded as evidence in its own right

and not as hearsay in disguise." Id. (quoting United

States v. Williams, 447 F.2d 1285, 1290 (5th Cir.

1971.)).

[Appellants] further argue that Dr. Glaser merely parroted

what the extra judicial statements said without connecting them

to his opinion. Again, Woodward is helpful:

An “expert” should not be permitted simply to repeat

another's opinion or data without bringing to bear on it his

own expertise and judgment. Obviously, in such a

situation, the non-testifying expert is not on the witness

stand and truly is unavailable for cross-examination. The

applicability of the rule permitting experts to express

opinions relying on extrajudicial data depends on the

circumstances of the particular case and demands the

exercise, like the admission of all expert testimony, of the

sound discretion of the trial court. Where … the expert

uses several sources to arrive at his or her opinion, and

has noted the reasonable and ordinary reliance on similar

sources by experts in the field, and has coupled this

reliance with personal observation, knowledge and

experience, we conclude that the expert’s testimony

should be permitted.

Id. at 521 (footnote omitted).

As evidenced by Dr. Glaser's testimony, he noted the

records he reviewed and how his opinion was impacted by those

records. His testimony does not merely parrot the other medical

records, it was clear they were used in forming his opinion.

See N.T., October 2, 2012, pgs. 53-65.

Trial Court Opinion, 6/5/13, at 7-9 (footnotes omitted) (emphasis supplied).

The trial court’s reasoning is supported by the record. Significantly,

we previously and expressly determined that “[a]fter reviewing Dr. Glaser’s

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testimony in its entirety, we discern no error in the [trial] court’s

stewardship of this trial.” Lloyd, supra, at 16. Accordingly, based on our

careful examination of the record and consonant with Pa.R.E. 611, M.W.,

American Future Systems, Daddona, and the authorities cited therein,

we affirm the trial court’s evidentiary rulings and find that Appellants’ first,

second, third, and fourth issues are without merit.

In their fifth issue, Appellants contend that the trial court

“prejudicially/harmfully erred by refusing to charge the jury on the

Pennsylvania Standard Jury Instruction 7.90 (Civ. 4th Ed.) - Other

Contributing Causes.” In support of their claim, Appellants set forth the

foregoing jury instruction and reference the instruction’s “[s]ubcommittee

[n]ote.” Appellants’ Brief at 53. In so doing, Appellants discount that “we

are not bound by the explanatory notes contained within the Rules of Civil

Procedure.” See Gladstone Partners, LP v. Overland Enterprise, Inc.,

950 A.2d 1011, 1015 n.5 (Pa. Super. 2008) (internal citation omitted).

Appellants cite only a 1989 case for the general proposition that “[t]o be

reversible error, the jury instruction, or failure to provide such an

instruction, must be erroneous and harmful.” Appellants’ Brief at 54.

Significantly, Appellants fail to cite any binding precedent that supports their

position that the trial court erred in not giving this instruction under the

particular circumstances of this case.

Likewise, in their sixth issue Appellants contend that the trial court

erred “by refusing to remove the word ‘the’ from the first jury interrogatory;

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suggesting to the jury that they had to find one specific set or version of the

injuries as opposed to any injuries or damage that they may have found

from the totality of the evidence.” Appellants’ Brief at 54. Appellants only

dedicate 15 lines of text to this issue, and fail to cite a single case or other

legal authority. Their failure to develop and support their arguments with

pertinent jurisprudence effects a waiver of their fifth and sixth issues, and

we decline to reach them. See Giant Food Stores, LLC v. THF Silver

Spring Development, L.P., 959 A.2d 438, 444 (Pa. Super. 2008)

(“Appellant’s issue on appeal is waived because [Appellant] has failed to set

forth in its appellate brief any citation to legal authority pertaining to

[Appellant’s] argument”); see also Korn v. Epstein, 727 A.2d 1130, 1135

(Pa. Super. 1999) (“arguments not appropriately developed are waived”)

(emphasis in original) (internal citations omitted).

Judgment affirmed. Bell’s motion to quash and/or dismiss this appeal

denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/2015

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