The opinion
J-A13035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAULINE ABRAMOWICH AND JOSEPH IN THE SUPERIOR COURT OF
ABRAMOWICH PENNSYLVANIA
v.
ANDREW MICHAEL ALBERT, M.D.,
CONEMAUGH HEALTH SYSTEM, INC.,
I/A/T/D/B/A
MEMORIAL MEDICAL CENTER, AND
CONEMAUGH HEALTH INITIATIVES, INC.
APPEAL OF: ANDREW MICHAEL ALBERT,
M.D.
No. 1039 WDA 2014
Appeal from the Judgment Entered August 22, 2014
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2010-1986
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 18, 2015
Andrew Michael Albert, M.D., (“Dr. Albert”) appeals from the judgment
entered on August 22, 2014 in the Cambria County Court of Common Pleas,
in favor of Pauline Abramowich (“Wife”) and Joseph Abramowich
(“Husband”), (collectively, “the Abramowiches”) in the amount of
$111,713.70, and against Dr. Albert, Conemaugh Health System, Inc.,
i/a/t/d/b/a Memorial Medical Center, and Conemaugh Health Initiatives,
J-A13035-15
Inc.1 On appeal, Dr. Albert alleges the trial court abused its discretion by
precluding him from testifying as an expert witness in the field of radiology.
After a thorough review of the record, the briefs of the parties, and the
applicable law, we affirm.
The facts and procedural history of this case, pertinent to this appeal,
have been gleaned from the certified record and the parties’ briefs, since the
trial court did not set forth such information in its Pa.R.A.P. 1925(a) opinion.
The medical malpractice suit stems from the administration of anesthesia by
Dr. Albert, an anesthesiologist, to Wife, a 73 year-old woman, on December
30, 2008, at the Memorial Medical Center in Johnstown, Pennsylvania, while
she was undergoing a scheduled laparoscopic cholecystectomy. The
Abramowiches claim Dr. Albert negligently intubated Wife, causing a one-
centimeter esophageal laceration that required a secondary surgical
procedure and further hospitalization and treatment.
On May 10, 2010, the Abramowiches instituted this action. Pleadings
and discovery were exchanged. Prior to trial, Dr. Albert indicated that he
intended to testify as an expert in the field of anesthesiology, which the trial
court accepted. He also retained an expert diagnostic radiologist, Dr. Robert
Hurwitz, to provide testimony regarding diagnostic images and how they
impacted the Abramowiches’ theory of liability. It was Dr. Hurwitz’s opinion
____________________________________________
1
Conemaugh Health System, Inc. and Conemaugh Health Initiatives, Inc.
are not parties to this appeal.
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that the air or carbon dioxide that was pumped in Wife’s stomach during the
procedure played an integral role in her injury, and not Dr. Albert’s actions.2
However, shortly before trial, Dr. Albert indicated that he also intended
to testify on his own behalf regarding issues of diagnostic radiology.3 The
____________________________________________
2
Specifically, he stated:
It [is] my opinion with reasonable medical probability that this is
the event that occurred as surgery was begun with distention of
the abdominal cavity with CO2 under pressure at time of the
laparoscopic cholecystecytomy. Proof is the finding on the
digital scanogram of considerable residual abdominal air (CO2)
on the CT scan the night of December 30, 2008.
Dr. Robert Hurtwitz’s Expert Report, 9/3/2012, at 2.
3
At his deposition, Dr. Albert provided his theory for the cause of Wife’s
injury based on radiographs and the CAT scan:
[Wife]’s pneumomediastinum [or air present in the mediastinum]
is the consequence of air tracking around her aortic hiatus,
which occurred as a result of her pneumoperitoneum in the
laparoscopic cholecystectomy. The air simply tracked up her
chest, her neck, and that is what caused the
pneumomediastinum. The pneumomediastinum, if you look at
the CAT scan, compressed her esophagus and she couldn’t
swallow. The CAT scan was misread to show – and it claims
there was a dilated esophagus and it was an extremely
compressed esophagus.
After they had the CAT scan and they did not figure what
was going wrong, they performed a bronchoscopy, which failed
to give any useful information other than the fact that the
bronchus was -- the trachea was intact. So they proceeded to
an esophagram.
…
(Footnote Continued Next Page)
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Abramowiches filed a motion in limine, seeking the exclusion of expert
testimony by Dr. Albert on the issue of diagnostic radiology, claiming the
doctor was not qualified to testify as a diagnostic radiologist, and that any
such testimony by Dr. Albert would be cumulative of Dr. Hurwitz’s
testimony. A hearing was held on March 3, 2014. The following day, the
trial court granted the Abramowiches’ motion. The matter then proceeded
to a jury trial.
On March 6, 2014, the jury entered a verdict in favor of Wife in the
amount of $60,000.00, and in favor of Husband in the amount of
$40,000.00, and against the Defendants. The Abramowiches filed a motion
_______________________
(Footnote Continued)
The esophagram unfortunately was a traumatic event.
Because she had a compressed esophagus and could not
swallow, … she kind of vomited and retched. And if you
remember her deposition, she described it as being water
boarding. The water boarding effect is you are trying to get a
person to swallow who can’t, so the gastrografin basically hits
the vocal cords, and when something like that happens you feel
like you are drowning, because that is what happens when you
drown[] is fluid goes down your larynx. She kept on vomiting.
She said she was held down and this increased the inner thoracic
pressure. It caused pressure on the air that was retained in her
chest, raising her inner thoracic pressure.
Now, the only place for that air to go is, one, it can go
back out the aortic hiatus where it entered, or it can go up and
go up in the neck. And, in fact, what happened is it perforated
the esophagus at the level just above her first rib, where your --
where your tissues are no longer supported by the rib cage. So
that is where it perforated, and that is when it perforated is the
esophagram, which is about 2:30 in the morning.
Deposition of Dr. Andrew Michael Albert, 9/11/2012, at 122-123.
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for delay damages on March 13, 2014. That same day, Dr. Albert filed a
motion for post-trial relief, arguing the court erred in prohibiting from
testifying about certain radiology studies concerning Wife because it
impeded his ability to defend the allegations against him.
On March 21, 2014, the court granted the Abramowiches’ motion for
delay damages in the amount of $11,713.70, resulting in a final verdict of
$111,713.70. On June 2, 2014, the trial court also entered an order,
denying the Defendants’ motion based on the following: (1) Dr. Albert did
not possess the required common law medical expertise in the field of
radiology; (2) Dr. Albert did not possess the required medical expertise in
the field of radiology pursuant to the Medical Care Availability and Reduction
of Error Act4 (MCARE Act); and (3) in any event, Dr. Albert’s expert
testimony would have been cumulative of Dr. Hurwitz’s testimony, who was
his retained expert. This appeal followed.5, 6
____________________________________________
4
40 P.S. § 1303.512.
5
On June 26, 2014, the trial court ordered Dr. Albert to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Dr. Albert filed a concise statement on July 17, 2014. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on August 13, 2014, relying on its
June 2, 2014, order.
6
We note Dr. Albert filed his notice of appeal from the court’s June 2, 2014,
denial of post-trial relief. Although this appeal was filed prior to entry of
final judgment, this Court has previously determined jurisdiction may be
perfected after the appeal notice has been filed upon the proper docketing of
a final judgment. Johnston the Florist v. Tedco Const. Co., 657 A.2d
(Footnote Continued Next Page)
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In his sole issue on appeal, Dr. Albert claims the trial court erred by
granting the Abramowiches’ motion in limine and precluding him from
providing expert testimony on the issue of causation of the esophageal tear
based on a radiologic opinion. See Dr. Albert’s Brief at 5. Dr. Albert
contends he was qualified under both the common law and statutory
standards, and that his testimony was not cumulative of Dr. Hurwitz’s
testimony.
“Preliminarily, we note our standard of review concerning a trial court’s
ruling on a motion for new trial is as follows. This Court will not reverse a
trial court’s decision regarding the grant or refusal of a new trial absent an
abuse of discretion or an error of law.” Yacoub v. Lehigh Valley Med.
Assocs., P.C., 805 A.2d 579, 586 (Pa. Super. 2002), appeal denied, 825
A.2d 639 (Pa. 2003).
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 party. Evidentiary rulings which did not affect the
verdict will not provide a basis for disturbing the jury’s
judgment. Ratti v. Wheeling Pittsburgh Steel Corp., 2000
PA Super 239, 758 A.2d 695, 707 (Pa. Super. 2000) [appeal
denied, 567 Pa. 715, 785 A.2d 90, 2001 Pa. LEXIS 41 (Pa.
January 4, 2001)] (quoting Foflygen v. Allegheny General
Hosp., 1999 PA Super 6, 723 A.2d 705 (Pa. Super. 1999),
appeal denied, 559 Pa. 705, 740 A.2d 233 (1999)).
_______________________
(Footnote Continued)
511, 513 (Pa. Super. 1995) (en banc). Moreover, because final judgment
has now been entered on the docket, as of August 22, 2014, we will “regard
as done that which ought to have been done” in this matter. Fanning v.
Davne, 795 A.2d 388, 391 (Pa. Super. 2002).
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Detterline v. D'Ambrosio’s Dodge, Inc., 763 A.2d 935, 938 (Pa. Super.
2000). Furthermore,
[w]hen we review a ruling on the admission or exclusion of
evidence, including the testimony of an expert witness, our
standard is well-established and very narrow. These matters are
within the sound discretion of the trial court, and we may
reverse only upon a showing of abuse of discretion or error of
law. “An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Grady v. Frito-Lay, Inc., 576 Pa. 546, 559,
839 A.2d 1038, 1046 (2003). In addition, “[t]o constitute
reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.” McClain v. Welker, 2000 PA Super 299, 761 A.2d 155,
156 (Pa.Super. 2000) (citation omitted).
Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super. 2006), aff’d,
971 A.2d 1202 (Pa. 2009).
First, Dr. Albert claims the court erred in finding that he did not qualify
as an expert witness pursuant to the common law standard. Specifically, Dr.
Albert states because the court found he possessed “some expertise reading
and interpreting radiology images” by being an anesthesiologist, “all
common law requirements for testifying as an expert witness were
satisfied.” Dr. Albert’s Brief at 11. Dr. Albert points to his curriculum vitae
(CV) and deposition testimony to demonstrate his radiology experience,
which included, but is not limited, to the following: (1) he has the additional
qualification in transesophageal echocardiography, which involves the
interpretation of x-ray imaging; (2) he is familiar with chest imaging; (3) he
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is experienced in reading computerized tomography (CT) scans as a result of
his anesthesia experience with thoracic patients; (4) during his residency, he
gained experience in radiology; (5) he has experience in co-reading films
with radiologists; and (6) in cases of managing a patient, he reads radiology
films himself. Id. at 12. Dr. Albert relies on Freed, supra, in support of his
argument that an otherwise competent and qualified witness can provide
expert testimony about causation.
In general, to qualify as an expert witness, one must only
“possess more expertise than is within the ordinary range of
training, knowledge, intelligence, or experience.” Flanagan v.
Labe, 547 Pa. 254, 257, 690 A.2d 183, 185 (1997); see also
Pa.R.E. 702; [McClain v. Welker, 761 A.2d 155, 156 (Pa.
Super. Ct. 2000)] (noting that the standard for qualification of
an expert witness is a liberal one). Thus, in determining
whether to admit expert testimony, the usual test to be applied
is “whether the witness has a reasonable pretension to
specialized knowledge on the subject matter in question.”
Flanagan, supra at 257, 690 A.2d at 185.
Applying this broad standard for expert testimony to an issue of
medical causation, this Court in McClain, supra, cited our
Supreme Court for the proposition that “an otherwise qualified
non-medical expert [may] give a medical opinion so long as the
expert witness has sufficient specialized knowledge to aid the
jury in its factual quest.” McClain, supra at 157 (citing Miller
v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525
(1995)).
Freed, 910 A.2d at 73 (footnote omitted). “If a witness possesses neither
experience nor education in the subject matter under investigation, the
witness should be found not to qualify as an expert.” Yacoub, 805 A.2d at
591.
Here, the court found the following:
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In the instant matter, the Court does not doubt Dr. Albert
possesses “training, knowledge, intelligence, or experience” in
the field of radiology, which he intends to testify as an expert in.
By virtue of being [i]n anesthesiology, he will have some
experience reading and interpreting radiology images. His
September 11, 2012 testimony confirms as much. The question
for the Court, though, is does he “possess more expertise than is
within the ordinary range of training, knowledge, intelligence or
experience[?]” The Court does not find that he does.
Dr. Albert has said: “[T]here is a fair bit of radiology in
ultrasound … internal medicine … anesthesia. There is enough of
it that you pick things up. You may not be willing to make the
call of whether what type of tumor is what type of tumor, but
you know that there is a mass there. Okay.” Dr. Albert
Deposition Tr. 40:13-20 (Sept. 11, 2012). In that same
Deposition, Dr. Albert also says: “You kind of pick up radiology
as you go.” Id. at 39:6. These comments suggest to the Court
Dr. Albert has some experience in radiology but not the required
“more expertise than … the ordinary” that is required. Experts
do not simply pick things up as they go or have a fair bit here
and there.
Trial Court Order, 6/2/2014, at 2-3.
We agree with the court’s sound analysis. At his deposition, Dr. Albert
proffered the following:
You kind of pick up radiology as you go. Most of mine is thoracic
stuff. So you read chest x-rays. Even -- even as internal
medicine, you just keep on going back and reading more,
because as you learn more you can kind of fit things together to
complete the disease process. There is always chest x-rays and
CT’s in the thoracic rooms when you are doing a bulk -- doing
thoracic cases, lung resections. So you learn that you have to
figure out what the surgeon is doing. You learn to read the films
ahead of time to see what disease processes, whether you can
figure out if it is going to be a difficult placement of a double
wound tube, whether there is large pleural effusions that the
person is going to desat on you very quickly. So you learn that
your -- the more information you get out from the diagnostic
tests actually do affect your anesthesia care, so you just keep on
reading more and studying more.
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Deposition of Dr. Andrew Michael Albert, 9/11/2012, at 39. Other than
expressing familiarity with radiology necessary to perform his services as an
anesthesiologist, Dr. Albert has not demonstrated he has a “reasonable
pretension to specialized knowledge on the subject matter in question.” See
Flanagan, supra. Likewise, while Dr. Albert may have some experience in
reading radiology images, he has not expressed that he has experience in
interpreting and analyzing the images as applied to cases like Wife’s surgery
to the extent that the pressure flow of air or carbon dioxide caused such a
disturbance in her body that an esophageal tear resulted.
Moreover, Dr. Albert’s reliance on Freed is misplaced as we find that
case is distinguishable from the present matter. In Freed, the plaintiff
proffered an expert witness-nurse’s testimony as evidence for the crucial
causation issue in his case, “i.e., that breaches in the standard of nursing
care were the cause of the development and/or worsening of [his] pressure
wound.” Freed, 910 A.2d at 75. The trial court had refused to allow the
nurse “to testify that breaches in the standard of nursing care had caused
[the plaintiff’s] pressure wounds.” Id. at 74. On appeal, a panel of this
Court noted that the expert witness nurse was “a registered nurse, having
received a Bachelor of Science degree in nursing from the University of New
Mexico in 1974. She ha[d] worked in various hospitals and private facilities,
including a rehabilitative nursing home where she gained experience with
adult wound care and long-term rehabilitation.” Id. at 75. Based on these
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qualifications, the panel determined the trial court abused its discretion, and
concluded:
[The nurse was] competent to provide expert testimony
not only on the standard of nursing care, but also on the
causative relationship between breaches in the standard of care
and Appellant’s pressure wounds. Her education and experience
provide her with “more expertise than is within the ordinary
range of training, knowledge, intelligence, or experience”
concerning the cause of pressure wounds.
Id. Unlike the expert witness-nurse in Freed, Dr. Albert has not met his
burden in presenting those specialized qualifications that would demonstrate
he had the training, knowledge, intelligence, or experience necessary to
testify about the field of radiology. Accordingly, we detect no abuse of
discretion on the part of the trial court in precluding Dr. Albert from
rendering expert radiology testimony under the common law standard.
Second, Dr. Albert argues the court erred in finding that he did not
qualify as an expert under the MCARE Act standard. Dr. Albert’s Brief at 13.
Specifically, he states he only had to meet two qualifications under the
MCARE Act because he was only speaking to causation, and not to the
standard of care. Id. at 14. Relying on Weiner v. Fisher, 871 A.2d 1283
(Pa. Super. 2005), appeal denied, 936 A.2d 41 (Pa. 2007), Dr. Albert asserts
the “more stringent requirements concerning the specialty and expert
qualifications only apply when a medical expert is to testify” about the
standard of care in a case. Dr. Albert’s Brief at 14. As such, he states the
only requirements he must meet are as follows: (1) possessing an
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unrestricted physician’s license to practice medicine in any state or DC; and
(2) be engaged in or retired within the previous five years from active clinic
practice or teaching. Id. Dr. Albert notes he “currently enjoys an unlimited
physicians’ license to practice medicine in Pennsylvania, Alabama, Kentucky,
and Idaho” and he “is continuing to practice medicine and also teaches
medicine.” Id. (record citations omitted). Additionally, Dr. Albert alleges
that a panel of this Court in Gartland v. Rosenthal, 850 A.2d 671 (Pa.
Super. 2004), appeal denied, 936 A.2d 41 (Pa. 2007), held that a doctor’s
CV, showing that he was a licensed physician, was sufficient prima facie
evidence that he was qualified to read x-rays.
With respect to expert testimony under the MCARE Act, we are guided
by the following:
With passage of the MCARE Act, the General Assembly created a
more stringent standard for admissibility of medical expert
testimony in a medical malpractice action by the imposition of
specific additional requirements not present in the common law
standard. Gbur v. Golio, 600 Pa. 57, 963 A.2d 443, 452 (Pa.
2009) (Opinion Announcing the Judgment of the Court); id. at
464 (Greenspan, J., concurring) (agreeing that, with the MCARE
Act, the General Assembly raised the standards for an expert
witness testifying to a physician’s standard of care, but also
noting that the statute permitted waiver of certain requirements
under appropriate circumstances); Wexler v. Hecht, 593 Pa.
118, 928 A.2d 973, 986 (Pa. 2007) (Castille, J., dissenting). The
MCARE Act’s provisions as to the requisite qualifications for an
expert witness testifying in a medical malpractice action against
a physician are found in Section 512, which provides, in relevant
part, as follows:
(a) General rule.--No person shall be competent to offer
an expert medical opinion in a medical professional liability
action against a physician unless that person possesses
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sufficient education, training, knowledge and experience to
provide credible, competent testimony and fulfills the
additional qualifications set forth in this section as
applicable.
(b) Medical testimony.--An expert testifying on a
medical matter, including the standard of care, risks and
alternatives, causation and the nature and extent of the
injury, must meet the following qualifications:
(1) Possess an unrestricted physician's license to practice
medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years
from active clinical practice or teaching.
****
(c) Standard of care.--In addition to the requirements
set forth in subsections (a) and (b), an expert testifying as
to a physician's standard of care also must meet the
following qualifications:
(1) Be substantially familiar with the applicable standard of
care for the specific care at issue as of the time of the
alleged breach of the standard of care.
(2) Practice in the same subspecialty as the defendant
physician or in a subspecialty which has a substantially
similar standard of care for the specific care at issue,
except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an
approved board, be board certified by the same or a
similar approved board, except as provided in subsection
(e).
****
(e) Otherwise adequate training, experience and
knowledge.-- A court may waive the same specialty and
board certification requirements for an expert testifying as
to a standard of care if the court determines that the
expert possesses sufficient training, experience and
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knowledge to provide the testimony as a result of active
involvement in or full-time teaching of medicine in the
applicable subspecialty or a related field of medicine within
the previous five years.
40 P.S. § 1303.512.
Thus, pursuant to Section 512, to testify on a medical
matter in a medical malpractice action against a defendant
physician, an expert witness must be a licensed and active, or a
recently retired, physician. In addition, in order to render an
opinion as to the applicable standard of care, the expert witness
must be substantially familiar with the standard of care for the
specific care in question. Furthermore, the expert witness must
practice in the same subspecialty as the defendant physician, or
in a subspecialty with a substantially similar standard of care for
the specific care at issue (“same specialty requirement”).
Finally, if the defendant physician is board certified, the expert
witness must be board certified by the same or a similar board
(“same board certification requirement”). Importantly, the
expert witness must meet all of these statutory requirements in
order to be competent to testify. However, there is an exception
to the same specialty and same board-certification
requirements: if a court finds that an expert witness has
sufficient training, experience, and knowledge to testify as to the
applicable standard of care, as a result of active involvement in
the defendant physician’s subspecialty or in a related field of
medicine, then the court may waive the same specialty and
same board certification requirements.
Vicari v. Spiegel, 989 A.2d 1277, 1281-1282 (Pa. 2010).
Here, the court found the following:
Subsections (a) and (b) apply to non-standard of care testimony
and subsection (a), (b), and (c) apply to standard of care
testimony.
Of the two, Dr. Albert argues he did not want to testify to
the standard of care but rather the non-standard of care issue of
causation. Even if that is true, the Court properly excluded his
testimony. First, the key phrase in subsection (a) is “sufficient
education, training, knowledge and experience to provide
credible, competent testimony.” Dr. Albert desires to use
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radiology reports as a basis to proffer his causation theory. The
problem with this is he does not have the “sufficient education,
training, knowledge and experience to” interpret those reports to
craft credible, competent testimony. The Court hearkens back to
Dr. Albert’s deposition testimony where he stated he picked
things up as he went along and had a fair bit here and there. If
the MCARE Act is allegedly more stringent than the common law
and the common law requires a witness to “possess more
expertise than is within the ordinary range of training,
knowledge, intelligence, or experience” than the Court interprets
the word “sufficient” in subsection (a) to be at the very least
akin to the common law standard. Consequently, if Dr. Albert
cannot satisfy the common law standard, he cannot meet the
MCARE Act standard as well.
Trial Court Order, 6/2/2014, at 4.
While Dr. Albert is correct that with respect to Subsection (b) of the
MCARE Act and causation, only two requirements are necessary for an
expert to be qualified. See 40 P.S. § 1303.512(b)(1-2). Nevertheless, Dr.
Albert ignores the fact he must still meet the general requirements under
Subsection (a) before he can be deemed qualified to testify as an expert
witness, and as the trial court properly opined, Dr. Albert does not possess
the “sufficient education, training, knowledge and experience to” interpret
those radiology reports to provide competent testimony. See 40 P.S. §
1303.512(a).
Furthermore, we find Gartland is distinguishable from the present
matter. In that case, the trial court determined that although the expert
witness was knowledgeable about neurology, he did not have sufficient
specific expertise to offer an opinion about the defendant-doctors, who were
either radiologists or a neurologist. Gartland, 850 A.2d at 675. On appeal,
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a panel of this Court disagreed, finding that the expert’s CV indicated he was
a neurologist, and that evidence “established prima facie his qualifications to
read the X-rays in this case and to offer an opinion on what should have
been done under the circumstances.” Id. Nevertheless, the panel did note
the following: “While we would probably not find him qualified to render
such an opinion if the radiologists were reading X-rays of a leg, we believe
that at least at the summary judgment stage and on this record, his opinion
on x-rays relating to neurological problems and the standard of care for
radiologists reading such x-rays should have been allowed.” Id. at 675-
676.
Gartland differs from the present case for two reasons: (1) the
proceedings were at the summary judgment stage as opposed to the trial;
and (2) Dr. Albert attempts to read radiology images in order to determine
the cause of Wife’s injury when he has not demonstrated that it is integral to
his common practice of anesthesiology. Therefore, we conclude the court
did not abuse its discretion in concluding that Dr. Albert was not qualified
under the MCARE Act to opine about the radiology imaging.
Lastly, Dr. Albert complains the trial court erred in finding his
testimony would have been cumulative of Dr. Hurwitz’s testimony and
therefore, excludable under Pennsylvania Rule of Evidence 403. The doctor
states the testimony was corroborative and not cumulative because it is
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evidence that “strengthens or bolsters existing evidence.” Dr. Albert’s Brief
at 16.
Rule 403 provides: “The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
“Evidence that strengthens or bolsters existing evidence is corroborative
evidence; we have previously explained that corroborative evidence is not
cumulative evidence.” Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa.
Super. 2012) (citation omitted).
Here, the trial court found the following:
In the instant matter, Dr. Albert proffered Robert Hurwitz,
M.D. (“Dr. Hurwitz”) as his expert witness. Dr. Hurwitz, an
expert radiologist, intended to testify and proffer a causation
theory of how [Wife]’s injury occurred that differed from the
Plaintiff’s. Dr. Hurwitz did this using the radiological images and
clinical information available. Dr. Hurwitz’s theory centered on
the “periaortic air channels above the diaphragm and to the left
of the expected course of a normal esophagus” as well as “a
moderate right pleural effusion … [and] a small left
pneumothorax.” In light of this, Dr. Hurwitz reached the
conclusion that the air dissected “the mediastinum from the
retroperitoneal space.” In other words, the air or carbon dioxide
that was pumped into [Wife]’s stomach for the procedure played
an integral role in her injury – not Dr. Albert’s actions. Dr.
Albert intended to testify about the same. In the Court’s
opinion, this is cumulative evidence and therefore properly
excludable.
Trial Court Order, 6/2/2014, at 5.
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We note that other than a bald assertion, Dr. Albert fails to explain
how such evidence “strengthens or bolsters” existing evidence. As such, we
agree with the trial court that Dr. Albert’s and Dr. Hurwitz’s theories behind
the causation of Wife’s injury were substantially similar.7 Therefore, we
again find the court did not abuse its discretion in excluding Dr. Albert’s
radiology testimony as cumulative.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2015
____________________________________________
7
See Klein v. Aronchick, 85 A.3d 487, 501 n.7 (Pa. Super. 2014) (three
different defense expert witnesses were permitted to testify on causation,
and their testimony was not considered needlessly cumulative, because
while all three experts reached the same conclusion, they approached the
subject matter from diverse clinical perspectives), appeal denied, 104 A.3d 5
(Pa. 2014).
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