Walker, R. v. Lancaster General

J. A18013/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RUFUS WALKER, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

LANCASTER GENERAL, :

THE LANCASTER GENERAL HOSPITAL, :

ALISON JOHANNA HARTEMINK, M.D., : No. 2036 MDA 2014

BRET M. LEVY, M.D., AND LANCASTER :

EMERGENCY ASSOCIATES, LTD. :

Appeal from the Judgment Entered November 24, 2014,

in the Court of Common Pleas of Lancaster County

Civil Division at No. CI-08-10428

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 03, 2016

Rufus Walker appeals from the judgment entered November 24, 2014,

following a defense verdict in this medical malpractice action. Following

careful review, we affirm.

The trial court has aptly summarized the history of this case as

follows:

This is a medical-malpractice case involving

the care and treatment that Defendant

Alison Johanna Hartemink, M.D.[Footnote 1] and

Defendant Bret M. Levy, M.D. provided to Plaintiff,

Rufus Walker, on three occasions in the Emergency

Department at Lancaster General Hospital

(individually, “LGH” and, collectively with Defendant

Lancaster General, “LG Defendants”). Dr. Hartemink

and Dr. Levy both were emergency-medicine

J. A18013/15

physicians and were employed by or partners of

Defendant Lancaster Emergency Associates, Ltd.

(collectively, the “LEA Defendants”). (N.T. Trial Vol.

5 at 593:23-594:3.)

[Footnote 1] At the time of trial,

Dr. Hartemink used her married name of

Dr. Railsback. For the sake of clarify

[sic], this Opinion will refer to her as

Dr. Hartemink, consistent with the

caption, even though she was referred to

during the trial by her married name.

On September 12, 2006, Plaintiff, a 30-year-

old black male, presented to the Emergency

Department of LGH, where he was seen by

Dr. Hartemink for a complaint of diffuse back pain

and a lifting injury.[Footnote 2] (N.T. Trial Vol. 5 at

471:2-5, 472:10-15.) Her impression was that he

had back pain with “no evidence of neurologic

involvement with his back pain, which . . . was

consistent with the musculoskeletal back pain.”

(N.T. Trial Vol. 5 at 479:22-480:3.) On

September 23, 2006, Plaintiff returned to LGH’s

Emergency Department, where Dr. Levy saw him.

(N.T. Trial Vol. 5 at 561:15-20.) Dr. Levy was aware

that Plaintiff had seen Dr. Hartemink at the earlier

visit to the Emergency Department. (N.T. Trial Vol.

5 at 565:6-7.) He testified that, based on the

history from the patient, his own physical

examination of the patient, and a negative MRI of

the lumbar spine, he did not have any reason to

suspect a disease with spinal-cord involvement.

(N.T. Trial Vol. 5 at 584:10-15.) On October 2,

2006, Plaintiff returned to LGH’s Emergency

Department again, at which time he was seen by

Dr. Hartemink. On that date, Dr. Hartemink

reviewed his charts, including Dr. Levy’s notes and

the report of the MRI that Dr. Levy had obtained and

a radiologist interpreted. (N.T. Trial Vol. 5 at 487:9-

12, 493:3-14.) Her impression was that “he had

severe low back pain based on the history of the

lifting injury, the continued symptoms of significant

pain in that area, and then the ED courses, the

-2-

J. A18013/15

emergency department course.” (N.T. Trial Vol. 5 at

498:4-7.) At each presentation to the Emergency

Department, Plaintiff was discharged without

admission after being examined by Dr. Hartemink or

Dr. Levy. The examination at each of the three visits

included a neurologic component. (N.T. Trial Vol. 5

at 475:15-19, 478:5-479:11, 497:5-24, 575:3-

580:8.)

[Footnote 2] Plaintiff injured his back

while carrying a shopping cart filled with

groceries from ground level to his

second-floor apartment. (N.T. Trial Vol.

1 at 107:7-22.)

On November 15, 2006, Plaintiff presented to a

different local hospital by ambulance. (N.T. Trial

Vol. 1 at 137:4-6.) At that time, he was admitted,

and he was later discharged to a rehabilitation

facility on December 3, 2006, at which time his

diagnosis was, among other things, transverse

myelitis secondary to neurosarcoidosis. (N.T. Trial

Vol. 2 at 292:5-9, 194:25-195:1.)

At trial, Plaintiff sought to prove that the care

and treatment he received from Dr. Levy on

September 23, 2006 and from Dr. Hartemink on

October 2, 2006 was negligent in that they failed to

diagnose and treat his transverse myelitis and that

such failure caused him harm and/or increased the

risk of harm to him. Generally stated, Plaintiff

contended that the physician-defendants failed to

recognize that Plaintiff’s signs and symptoms were

early signs of a spinal-cord problem, not caused by a

back problem as they believed; the physician-

defendants should have referred Plaintiff to a

neurologist and done further work-up; and, had the

additional work-up been completed and/or referral

been made, the transverse myelitis would have been

identified and could have been treated with steroids

to improve or at least stop the progression of the

condition.

-3-

J. A18013/15

Defendants denied all liability, challenging both

negligence and causation. At trial, their position,

generally stated, was that the physician-defendants

met or exceeded the standard of care for

emergency-medicine physicians, Plaintiff’s condition

on each visit to the physician-defendants was

musculoskeletal-related, and, further, Plaintiff’s

transverse myelitis did not develop until sometime

after the physician-defendants last saw Plaintiff.

Several non-party physicians testified as trial

experts. Dr. Frederick Levy, who testified via

videotaped deposition for use at trial, was Plaintiff’s

liability expert in emergency medicine. Also

testifying for Plaintiff was Dr. David E. Jones, who

was qualified as an expert in neurology and

neuroimmunology on the question of causation.

Dr. Daniel R. Wehner, an emergency-medicine

physician, testified via videotape as the defense

standard-of-care expert.

After a seven-day trial, the jury rendered a

defense verdict on June 24, 2014, finding no

negligence on the part of either doctor. (N.T. Trial

Vol. 7 at 760:4-14.) On June 30, 2014, Plaintiff filed

a timely Post-Trial Motion (“Motion”), alleging eleven

errors by this Court which warranted the grant of a

new trial.[Footnote 3] The LG Defendants and the

LEA Defendants filed their responses on July 10,

2014 and July 14, 2014, respectively.

[Footnote 3] See Pa. R. Civ. P. 227.1(c)

(stating that post-trial motions shall be

filed within ten days after a verdict).

By Order dated July 15, 2014, I directed

Plaintiff to file an amended post-trial motion, “which

amendment shall be limited to citing with specificity

where in the record each of the claims raised in

Paragraphs 1-11 were preserved,” as well as

directing him to file a proper request for the trial

transcript. On September 10, 2014, Plaintiff filed a

timely Amended Motion for Post-Trial Relief

(“Amended Motion”). The LEA Defendants and the

-4-

J. A18013/15

LG Defendants filed their responses on

September 19, 2014 and September 22, 2014,

respectively. With their response to the Motion and

response to the Amended Motion, the LG Defendants

asserted an alternative Cross-Motion for Post-Trial

Relief on the Issue of Ostensible Agency.[Footnote 4]

[Footnote 4] Plaintiff alleged that the

physician-defendants were ostensible

agents of LGH for the purpose of a

vicarious-liability claim. The jury never

answered the ostensible-agency

questions on the Verdict Sheet

(Questions 7 and 8) because, before they

would have proceeded to that question,

they found that the physician-defendants

were not negligent (Questions 1 and 2).

Trial court opinion, 11/18/14 at 1-5.

On November 18, 2014, the trial court denied appellant’s amended

post-trial motion, as well as the LG defendants’ cross-motion for post-trial

relief on the issue of ostensible agency. On November 24, 2014, judgment

was entered in favor of the defendants and against appellant. This timely

appeal followed on December 2, 2014. Appellant complied with

Pa.R.A.P. 1925, and the trial court filed a Rule 1925(a) opinion, relying on its

prior opinion and order of November 18, 2014, disposing of post-trial

motions.

Appellant has raised the following questions for this court’s review:

A. IS IT AN ERROR OF LAW AND/OR AN ABUSE

OF DISCRETION TO LIMIT A TREATING

PHYSICIAN SPECIALIST TO THE FACTS

CONTAINED IN HIS MEDICAL RECORDS AND

TO PRECLUDE HIM FROM OFFERING ANY

EXPERT TESTIMONY WITH REGARD TO

-5-

J. A18013/15

CAUSATION OR TO THE EXISTENCE AND

PROGRESS OF THE DISEASE FOR WHICH HE

TREATED THE PATIENT?

B. IS IT AN ERROR OF LAW AND/OR AN ABUSE

OF DISCRETION TO PERMIT DEFENDANTS

WHO HAD LITTLE OR NO RECOLLECTION OF

EVENTS BEYOND THE MEDICAL RECORDS AND

WHO HAD NOT PROVIDED EXPERT REPORTS

PURSUANT TO PA.R.C.P. 4003.5(a)(1)(b) TO

TESTIFY AS TO WHAT THEY DID, THAT WHAT

THEY DID WAS APPROPRIATE, AND WITHOUT

BEING QUALIFIED TESTIFIED AS EXPERTS

BEYOND THEIR QUALIFICATIONS?

C. DID THE TRIAL COURT COMMIT AN ERROR OF

LAW AND/OR ABUSE HIS DISCRETION IN NOT

GRANTING A NEW TRIAL WHEN THE DEFENSE

CHANGED THEIR THEORY OF THE CASE AT

THE END OF THE TRIAL?

D. DID AN ERROR OF LAW OCCUR WHEREIN THE

COURT CONDUCTED THE VOIR DIRE AND DID

NOT EXCLUDE FOR CAUSE THE NUMEROUS

INDIVIDUALS WHO HAD EMPLOYMENT OR

OTHER RELATIONSHIPS WITH DEFENDANT

LANCASTER GENERAL HOSPITAL?

E. WAS THE JURY VERDICT CONTRARY TO THE

UNDISPUTED FACTS AND EVIDENCE?

Appellant’s brief at 5.

In his first issue on appeal, appellant argues that the trial court erred

in granting the LEA defendants’ pre-trial motion in limine to limit the

testimony of his treating physician, Hany G. Salama, M.D., a neurologist.1

The defendants sought to preclude Dr. Salama from offering expert

1

The LG defendants joined in the motion.

-6-

J. A18013/15

testimony at trial, limiting him to the matters outlined in his August 12,

2013 letter to plaintiff’s counsel, and to material contained in his office

chart. Dr. Salama’s deposition was scheduled for May 29, 2014.

On May 9, 2014, appellant filed a responsive brief, arguing that

because Dr. Salama was appellant’s treating physician, his opinions were not

subject to the rules of expert witness discovery, including Pa.R.C.P. 4003.5.

However, appellant agreed that Dr. Salama should be precluded from

testifying regarding “standard of care liability emergency room issues.”

Appellant argued that Dr. Salama should be allowed to testify regarding

diagnosis and treatment as well as factual causation. Appellant also argued

that Dr. Salama should be permitted to testify from all medical records

produced during discovery and not limited to his August 12, 2013 letter.

On May 28, 2014, before the trial court had ruled on the motion

in limine, appellant canceled Dr. Salama’s videotape deposition. Then, on

June 6, 2014, he filed an amended pre-trial conference memorandum and

trial brief in which he amended his witness list, removing Dr. Salama.

Apparently, appellant decided not to call Dr. Salama as a trial witness, as he

did not reserve the right to supplement the witness list. (Trial court opinion,

11/18/14 at 23.) On June 9, 2014, the trial court granted the motion in

part, and denied it in part, permitting Dr. Salama to use all of the available

medical records as well as the August 12, 2013 letter, but precluding him

from offering any expert testimony regarding the appropriate standard of

-7-

J. A18013/15

care, the alleged negligence of any defendant, or causation.2 Therefore, the

trial court’s order did not preclude Dr. Salama from testifying as a

subsequent treating neurologist in accordance with all of the medical records

and Dr. Salama’s August 12 letter including appellant’s symptoms on

physical examination, his history, diagnosis, and treatment, as well as

appellant’s current condition and prognosis. However, appellant chose not

to call Dr. Salama as a witness at trial.

In determining that it would be improper for Dr. Salama to testify as

to any expert opinions he held outside his capacity as a treating provider,

the trial court found that appellant violated Rule 4003.5 by failing to identify

Dr. Salama as an expert witness.3

2

Regarding emergency room standard of care, Dr. Salama would not meet

the same specialty requirement of the MCARE Act, 40 P.S. § 1303.512(c).

3

Rule 4003.5 provides, in relevant part:

(a) Discovery of facts known and opinions held by an expert,

otherwise discoverable under the provisions of Rule 4003.1

and acquired or developed in anticipation of litigation or for

trial, may be obtained as follows:

(1) A party may through interrogatories require

(A) any other party to identify each

person whom the other party

expects to call as an expert witness

at trial and to state the subject

matter on which the expert is

expected to testify and

(B) subject to the provisions of

subdivision (a)(4), the other party

-8-

J. A18013/15

“The admissibility of evidence is a matter addressed solely to the

discretion of the trial court and may be reversed only upon a showing that

the court abused its discretion.” Commonwealth v. Marshall, 743 A.2d

489, 492 (Pa.Super. 1999), appeal denied, 757 A.2d 930 (Pa. 2000)

(citation omitted). “Thus our standard of review is very narrow . . . . To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” McManamon v.

Washko, 906 A.2d 1259, 1268-1269 (Pa.Super. 2006), appeal denied,

921 A.2d 497 (Pa. 2007) (citations omitted).

Rule 4003.5 applies to discovery of experts that a litigant has retained

or specifically employed in the course of preparing for litigation. Generally

to have each expert so identified

state the substance of the facts

and opinions to which the expert is

expected to testify and a summary

of the grounds for each opinion.

The party answering the

interrogatories may file as his or

her answer a report of the expert

or have the interrogatories

answered by the expert. The

answer or separate report shall be

signed by the expert.

(b) An expert witness whose identity is not disclosed in

compliance with subdivision (a)(1) of this rule shall not be

permitted to testify on behalf of the defaulting party at the

trial of the action.

-9-

J. A18013/15

speaking, Rule 4003.5 does not apply to treatment providers whose opinions

were not acquired in anticipation of litigation. The trial court relies on

Kurian v. Anisman, 851 A.2d 152 (Pa.Super. 2004), and Polett v. Public

Communications, 83 A.3d 205 (Pa.Super. 2013) (en banc), reversed,

A.3d , 2015 WL 6472419 (Pa. filed October 27, 2015).

In Kurian, the plaintiffs/appellants argued that Ancy Kurian’s treating

physician, Dr. Alvin Chin, was exempt from expert disclosure requirements

as his opinions were not acquired in anticipation of litigation. Kurian, 851

A.2d at 155. This court disagreed, finding that in his report, Dr. Chin never

came to a conclusion as to whether the defendant doctor deviated from the

standard of care or whether this deviation was a proximate cause of Ancy’s

injuries. Id. at 156. In his 1997 report, Dr. Chin merely stated that Ancy’s

large patent ductus arteriosus must have been present in 1990, when Ancy

had an echocardiogram by Dr. Paul Anisman, and was not diagnosed

correctly at that time. Id. However, in his treatment notes, Dr. Chin

offered no opinions regarding standard of care or causation:

This is hardly surprising. A doctor is concerned with

treating his patients, not about whether a prior

doctor's breach of a particular standard of care was

the factual cause of his patient's injuries. Further,

based on the report, it does not appear as if Dr. Chin

could have come to the conclusions appellants

desire; his report shows that he never even looked

at the 1990 echocardiography.

The fact that Dr. Chin never came to a

pre-anticipation of litigation conclusion as to whether

Dr. Anisman breached the physician’s standard of

- 10 -

J. A18013/15

care and whether such a breach was the proximate

cause of the harm Ancy suffered is fatal to this claim.

Id. (emphasis in original). Cf. Polett, supra (trial court did not abuse its

discretion by allowing treating physician to testify as an expert, where he

had reached an opinion as to causation before the prospect of litigation had

surfaced, as evidenced by his treatment notes as well as his deposition

testimony; he was concerned about the cause of his patient’s knee injury

because it was determinative of whether the inflammation and pain she was

experiencing was caused by an infection, or, alternatively, if it was

mechanical in origin).4

Instantly, Dr. Salama’s August 12, 2013 report discussed appellant’s

diagnosis of myelopathy secondary to neurocarcoidosis, his current medical

condition, and prognosis. Dr. Salama’s letter contains no opinion

whatsoever as to standard of care, negligence, or causation issues.

Dr. Salama was initially listed as a damages witness. Indeed, appellant

stated in his response to the motion in limine that he did not intend to

4

As stated above, the trial court relied on this court’s opinion in Polett, in

which a majority of the en banc panel found that the trial court should not

have permitted the treating physician to provide expert testimony, as he

was not disclosed as an expert witness by the Poletts, nor did he prepare an

expert report. The majority concluded that the treating physician’s

causation opinions were not developed during the regular course of

treatment, but, rather, arose under the “sword of litigation.” However, this

court’s decision in Polett has since been reversed by our supreme court,

which determined that the trial court did not abuse its discretion in ruling

that the treating physician’s testimony as to causation was not barred by

Rule 4003.5.

- 11 -

J. A18013/15

question Dr. Salama regarding emergency medicine standard of care or

negligence; nor, as a neurologist, could Dr. Salama testify as to the standard

of care of an emergency room doctor. As far as factual causation, there is

nothing in the August 12 letter to suggest that Dr. Salama reached an

opinion on causation during the course of treating appellant and before

litigation was anticipated, and appellant makes no offer of proof in this

regard. The August 12 letter discusses only Dr. Salama’s care and

treatment as well as his thoughts on prognosis. Cf. Polett, supra (treating

physician first formed his causation opinion in 2006, two years before suit

was instituted, as reflected in his treatment notes, and the cause of his

patient’s injuries (riding an exercise bike) was critical to his chosen

treatment).

Here, the alleged breach of the standard of care, in not recognizing

early signs of spinal cord involvement during appellant’s three ER visits,

referring him to a neurologist, and administering steroids which could have

halted or even reversed the progression of the disease, does not appear to

be critical to Dr. Salama’s treatment plan, as in Polett. In addition, there is

no record as to Dr. Salama’s proposed testimony on causation. Appellant

canceled his deposition and removed him from the witness list before the

trial court ruled on the defendants’ motion.

At any rate, appellant cannot show how he was prejudiced by the trial

court’s ruling, for several reasons. First, the jury never reached the issue of

- 12 -

J. A18013/15

causation because they found the physician-defendants non-negligent.

Second, Dr. Salama’s testimony would have been cumulative of the expert

testimony of Dr. Jones and Dr. Frederick Levy, who did testify at trial

regarding standard of care, liability, and causation. See Pa.R.E. 403 (“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.”). (Trial court opinion, 11/18/14 at 20-22

(discussing expert testimony of Dr. Jones and Dr. Frederick Levy).) There is

no error here.

In his second issue on appeal, appellant argues the trial court erred in

allowing the physician-defendants, Drs. Levy and Hartemink, to offer “expert

testimony” to the effect that appellant’s spinal cord problem developed after

his last ER visit on October 2, 2006. Appellant argues that neither Dr. Levy

nor Dr. Hartemink was a neurologist or neuroimmunologist, nor did they

provide an expert report prior to trial. Appellant contends that this was a

previously undisclosed defense theory and Dr. Hartemink was not qualified

to render a neurological opinion. Appellant also complains that

Dr. Hartemink had no independent recollection of appellant.

Initially, we observe that the only decision cited by appellant in

support of his argument is Chiodetti v. Fernandes, 120 A.3d 371

(Pa.Super. 2015) (unpublished memorandum). As an unpublished

- 13 -

J. A18013/15

memorandum decision, Chiodetti is non-precedential and is not to be cited

or relied upon by any party, except under extremely limited circumstances

not present here. See Super.Ct. IOP § 65.37(A), 42 Pa.C.S.A. (“An

unpublished memorandum decision shall not be relied upon or cited by a

Court or a party in any other action or proceeding, except that such a

memorandum decision may be relied upon or cited (1) when it is relevant

under the doctrine of law of the case, res judicata, or collateral estoppel, and

(2) when the memorandum is relevant to a criminal action or proceeding

because it recites issues raised and reasons for a decision affecting the same

defendant in a prior action or proceeding.”). As such, we will not consider

Chiodetti.

As appellant limits his argument to Dr. Hartemink’s testimony, we will

do the same.5 At trial, defense counsel asked Dr. Hartemink,

Also, under the circumstances as they existed at the

time, on September 12th and October 2nd, 2006, did

you have any reason to suspect or investigate that

Mr. Walker had some sort of disease process rare or

not, that was somehow affecting his spinal cord?

Notes of testimony, trial, 6/20/14, Vol. 5 at 468. Plaintiff’s counsel

requested a sidebar and complained,

Your Honor, this witness has no independent

recollection of either of these visits. She only knows

what’s in the records, so this would be an

inappropriate question. And any other questions

5

We note that Dr. Levy did, in fact, have an independent recollection of

appellant and was not merely testifying from his office notes. (Trial court

opinion, 11/18/14 at 28 n.18.)

- 14 -

J. A18013/15

that have to do with what happened on either of

these occasions that is not in the record she cannot

testify to.

Id. at 469. The trial court did not make a ruling, but simply asked counsel

to “sit down,” stating, “That’s cross examination.” (Id.) Defense counsel

rephrased the question:

Again, under the circumstances as they existed at

the time on those two dates, based on your training

and experience at the time, was there any reason for

you to suspect or investigate a disease, rare or not,

being present that was in any way affecting

Mr. Walker’s spinal cord?

Id. Without objection, Dr. Hartemink replied,

No. If a patient had a clearly documented lifting

injury and symptoms that were consistent with a

lifting injury, and no other symptoms, that would not

make you think of a systemic illness going on.

Id. at 469-470.

We note that appellant did not argue Dr. Hartemink was not a

neurologist or was not qualified to render an expert opinion, or that the

defense was introducing a previously undisclosed theory of defense at trial,

only that Dr. Hartemink did not have an independent memory of the

September 12th and October 2nd office visits. However, appellant never

availed himself of the opportunity to attack Dr. Hartemink’s memory through

cross-examination. (Trial court opinion, 11/18/14 at 30.)

Dr. Hartemink was a named defendant and was not limited by

Rule 4003.5, which governs discovery of opinions that a party or a potential

- 15 -

J. A18013/15

party to litigation solicits from a non-party expert. Neal by Neal v. Lu, 530

A.2d 103, 106 (Pa.Super. 1987). As a physician-defendant, Dr. Hartemink

could certainly testify as to why she did not feel it was necessary to refer

appellant to a neurologist, without submitting an expert report. In Neal, the

appellants objected to the physician-defendant, Dr. Lu’s causation

testimony, arguing, inter alia, that Dr. Lu was attempting to testify as a

medical expert even though he had neither listed himself as a prospective

expert witness nor furnished the appellants with a synopsis of his proposed

testimony pursuant to general and local rules of discovery. Id. at 105-106.

This court disagreed, finding that Rule 4003.5 did not apply to the testimony

of Dr. Lu where his expert opinion was not acquired or developed in

anticipation of litigation:

The doctor did not “acquire” his opinions on the

treatment of Rebecca's finger “in anticipation of

litigation.” He did not expend time and money

developing his own knowledge or employing himself

as an expert to gain a tactical advantage in the law

suit brought against him by appellants. His opinions

and knowledge, in short, were not the work product

of a well-prepared litigant. They pre-dated any

litigation and are the very gist of appellants’ cause of

action. As such, they fall outside any reasonable

definition of the phrase “acquired or developed in

anticipation of litigation.”

Id. at 108. “The Rule simply does not apply to expert opinions of a party

when a matter within that party’s field of expertise is at issue.” Id.

See also Pa.R.C.P. 4003.5, comment (“It should be emphasized that

Rule 4003.5 is not applicable to discovery and deposition procedure where a

- 16 -

J. A18013/15

defendant is himself an expert, such as a physician, architect or other

professional person, and the alleged improper exercise of his professional

skills is involved in the action.”). As such, Dr. Hartemink could testify as to

whether appellant was exhibiting symptoms of spinal cord disease which

would warrant referral to a specialist, or whether, given his history of a

lifting injury and the results of neurological testing, his symptoms were

consistent with a musculoskeletal disorder. Appellant’s argument that

Dr. Hartemink, a physician-defendant, had to submit an expert report and

comply with expert discovery rules is wholly without merit.6

In addition, although Dr. Hartemink had no independent recollection of

examining appellant, she could testify from the medical records and her

habit and routine as a treating physician. Pa.R.E. 406.7 She was not

6

In fact, as the trial court observes, appellant repeatedly elicited such

testimony during his cross-examination of Dr. Hartemink, i.e., that there

was no evidence of spinal cord involvement during appellant’s three ER visits

at LGH and the spinal cord condition must have developed between the date

of his last ER visit, October 2, 2006, and November 15, 2006, when he was

admitted to the hospital. (Trial court opinion, 11/18/14 at 28-29.)

7

Q. And these routines that you develop by virtue

of your education and training allow you to say

with a very good deal of certainty what exam

you did on a particular day and what your

documentation tells you, even if, you know,

years down the road, eight years, for example,

let’s just say, you can’t recall what occurred as

if it was a movie playing in your head?

A. Correct.

Notes of testimony, trial, Vol. 5, 6/20/14 at 524.

- 17 -

J. A18013/15

required to actually remember appellant from eight years prior in order to

testify regarding her examination, diagnosis, and treatment. The trial court

did not err in permitting Dr. Hartemink’s testimony.

In his third assignment of error, appellant argues that he was

prejudiced by the defendants’ decision not to call certain expert witnesses

including their neurologist, Dr. Katz, and their emergency room doctor,

Dr. Cosgrove. According to appellant, the defendants changed their theory

at trial, claiming, for the first time, that appellant’s spinal cord disease

started sometime after October 2, 2006. (Appellant’s brief at 35.) Appellant

posits that the defendants did not call these expert witnesses because they

would have contradicted this new position and testified in accordance with

their expert reports, i.e., that appellant’s disease process was in its early

stages during the three ER visits, was steadily progressing, and did not

suddenly appear after October 2, 2006. (Id.) Appellant argues that this

was trial by ambush and he was entitled to some sort of jury instruction.

(Id. at 34-35.)

First, we note that appellant did not make any objection at trial, nor

did he request a jury instruction. (Trial court opinion, 11/18/14 at 31.)

Therefore, the matter is deemed waived. See Pa.R.C.P. 227.1(b)(1)

(“Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not

be granted unless the grounds therefor, (1) if then available, were raised in

pre-trial proceedings or by motion, objection, point for charge, request for

- 18 -

J. A18013/15

findings of fact or conclusions of law, offer of proof or other appropriate

method at trial . . .”). This issue was raised for the first time in appellant’s

post-trial motion. As the trial court states, during the course of trial, it

became obvious that the defendants would not be calling certain witnesses,

including the neurologist, yet appellant did not raise the issue. (Trial court

opinion, 11/18/14 at 31.)

In addition, appellant cites no authority for the proposition that the

defendants were required to call every witness on their witness list, or else

suffer an adverse instruction. The only case cited by appellant is Chiodetti,

supra, which is non-precedential, and, according to our Internal Operating

Procedures, should not be cited. The plaintiff bears the burden of proof and

the defendants were not obligated to call every witness. As the trial court

observes, a trial is a fluid process and counsel is not required to adhere to a

particular theory of the case as articulated during pre-trial discovery. (Id. at

33.) Apparently, the defendants decided not to call Dr. Katz because they

were satisfied that Dr. Jones’ testimony provided them with a defense. (Id.

at 31-32.) Dr. Jones testified to the rarity of appellant’s condition; that

there is no evidence that administration of steroids alters its course; that it

generally develops over a period of days, rather than weeks or months; and

that appellant had increased symptoms subsequent to his treatment with the

- 19 -

J. A18013/15

defendants. (Id.) Certainly, if defense counsel referenced Dr. Katz or other

witnesses during trial and then failed to call them to the stand, appellant

could alert the jury to their absence; however, even if this matter were

preserved, which it is not, appellant would not be entitled to post-trial relief

for a defendant’s decision not to call a particular witness.

In his fourth issue on appeal, appellant contends that the trial court

erred in allowing jurors to serve who were employees or otherwise

associated with LGH, but stated during voir dire that they could be fair and

impartial. (Appellant’s brief at 36.) Appellant states that LGH is one of

Lancaster’s largest employers. (Id.) Appellant concedes that he did not

object to the voir dire process or challenge any of the prospective jurors for

cause, but claims that a recent decision of this court, Cordes v. Associates

of Internal Medicine, 87 A.3d 829 (Pa.Super. 2014) (en banc), appeal

denied, 102 A.3d 986 (Pa. 2014), changed the legal landscape in this area.

In his reply brief, appellant asserts that he had no basis to object until our

supreme court denied allocatur in Cordes. (Appellant’s reply brief to brief

of LEA defendants and Drs. Levy and Hartemink at 22-23.)

In Cordes, the opinion in support of reversal by Judge Wecht found

that certain jurors’ close familial relationships with patients of the

physician-defendant warranted a finding of per se prejudice, despite their

assurances during voir dire that they could be fair and impartial. Cordes,

87 A.3d at 842-843. Judge Wecht concluded that the trial court failed to

- 20 -

J. A18013/15

give due regard to the importance of ensuring a jury that is not only

impartial in fact, but also in appearance. Id. at 842-846. Judge Wecht also

found that empanelment of a third juror, who testified he could deliberate

impartially despite his employment relationship with Heritage Valley Health

System which had an undisputed financial interest in the outcome of the

litigation, “created a sufficient risk of partiality to establish prejudice per se

arising from his jury service.” Id. at 845 (footnote omitted). Again, in so

holding, Judge Wecht emphasized avoiding even the appearance of partiality

or bias.

There are several problems with appellant’s argument. First, Cordes

was a plurality decision and is not binding precedent. See Shinal v. Toms,

122 A.3d 1066, 1076 n.8 (Pa.Super. 2015) (explaining that Cordes is not

controlling authority and that while a majority of the en banc panel

concurred in the result in Cordes, the judges did not agree on the rationale

for the result). Second, in Cordes, the appellant challenged the prospective

jurors for cause. Instantly, appellant did not argue that any of the

individuals employed by, or who had a close association with, LGH should be

stricken for cause, nor did appellant make any objections during voir dire or

request the trial court to ask additional questions. (Trial court opinion,

11/18/14 at 33-34.) Therefore, the matter is waived. See Shinal, 122

- 21 -

J. A18013/15

A.3d at 1078 (finding appellants’ exhaustion of peremptory challenges

argument waived where they failed to raise the issue at trial).8

Finally, in his statement of questions involved, appellant raises a

weight of the evidence claim; however, he does not argue the issue in his

brief. Therefore, it is deemed waived. See Pa.R.A.P. 2119(a) (“The

argument shall be divided into as many parts as there are questions to be

argued; and shall have at the head of each part--in distinctive type or in

type distinctively displayed--the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”). 9

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016

8

We also note that Cordes was decided on March 12, 2014, and jury

selection took place in this case on June 16, 2014, three months later.

9

Appellant makes a fleeting reference to the issue in his reply brief;

however, reply briefs may not be used as an opportunity to raise additional

issues on appeal. Pa.R.A.P. 2113. Furthermore, the trial court likewise

found appellant’s weight of the evidence claim waived, as mere boilerplate.

(Trial court opinion, 11/18/14 at 37.)

- 22 -