Blaque, E. v. Chestnut Hill Hospital

J-A04013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELLESIA BLAQUE, INDIVIDUALLY AND IN THE SUPERIOR COURT OF

AS ADMINISTRATRIX OF THE ESTATE OF PENNSYLVANIA

HERBERT F. MCCRACKEN, DECEASED,

Appellant

v.

CHESTNUT HILL HOSPITAL AND TRI-

COUNTY EMERGENCY PHYSICIANS LLC

AND AMANDA HOWELL, M.D. AND

JENNIELYN BUMANLAG, M.D. AND DAVID

M. SCHWARTZ, M.D. AND MENA

ABRAHIM, M.D. AND DAVID JASLOW,

M.D. AND RYAN BURKE, M.D. AND

JOSEPH W. PRICE, M.D. AND JOSEPH W.

PRICE & ASSOCIATES AND UNIVERSITY

OF PENNSYLVANIA HEALTH SYSTEM AND

TRUSTEES OF THE UNIVERSITY OF

PENNSYLVANIA,

Appellees No. 2382 EDA 2016

Appeal from the Judgment Entered September 22, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): August Term, 2013 No. 1763

BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 31, 2017

In this medical malpractice action, Appellant, Ellesia Blaque,

individually and as administratrix of the estate of Herbert F. McCracken (“Mr.

McCracken” or “Decedent”), appeals from the judgment entered on

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

J-A04013-17

September 22, 2016, in favor of Chestnut Hill Hospital, Tri-County

Emergency Physicians, LLC, Amanda Howell, M.D., Jennielyn Bumanlag,

M.D., David M. Schwartz, M.D., Mena Abrahim, M.D., David Jaslow, M.D.,

Ryan Burke, M.D., Joseph W. Price, M.D., Joseph W. Price & Associates,

University Of Pennsylvania Health System, and Trustees of The University of

Pennsylvania (collectively “Appellees”). After careful review, we affirm.

The trial court set forth the relevant facts and procedural background

of this matter as follows:

The medical care at issue in this litigation involves the

treatment of [Mr. McCracken] at the emergency department of

[Appellee] Chestnut Hill Hospital on December 12, 2012. Mr.

McCracken was a 75 year old man who presented to the

emergency department at 5:27 a.m. with complaints of 10/10

abdominal pain and diarrhea over the past two days. (N.T.

2/17/16, afternoon, at 107). Mr. McCracken was first seen by

[Appellee] Dr. Ryan Burke. In his examination of Mr. McCracken,

[Mr. McCracken] denied abdominal pain. (N.T. 2/16/16,

afternoon, at 12). Dr. Burke noted “he believes he ate something

bad” and that Mr. McCracken was requesting “pain medication

just to feel better.” (N.T. 2/17/16, afternoon, at 121). Dr. Burke

diagnosed Mr. McCracken with diarrhea, acute diverticulitis,

small bowel obstruction, dehydration, gastroenteritis, acute

exacerbation of irritable bowel syndrome, acute is[c]hemic

bowel, acute exacerbation of inflammatory bowel disease, and

hepatitis. (N.T. 2/19/16, Afternoon, at 32-35). Dr. Burke ordered

an IV for saline based on concerns for diarrhea and dehydration,

Bentyl for colon spasms, and lab work. (Id. at 37).

At 7:23 a.m., Dr. Burke endorsed Mr. McCracken to

[Appellee] Dr. David Jaslow. (N.T. 2/16/16, Afternoon at 20). Dr.

Burke’s recommendation for Dr. Jaslow was for Mr. McCracken to

be discharged when all the lab work results were completed.

(N.T. 2/19/16, Afternoon, at 22). Dr. Jaslow reassessed Mr.

McCracken and rendered a clinical impression of diarrhea. (N.T.

2/22/16, afternoon, at 140). Dr. Jaslow ordered Mr. McCracken

discharged at 7:47 a.m. (N.T. 2/19/16, afternoon, at 105).

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Nurse Serena Whitfield who assessed Mr. McCracken at

discharge noted “Pt c/o of abdominal pain 10/10 discussed with

Dr. Jaslow, pt willing to take Ibuprofen, one 600 mg given along

with script given during discharge for Motrin 800 mg per Dr.

Jaslow.” (N.T. 2/22/16, morning, at 95).

Mr. McCracken returned to the hospital at 7:18 p.m. on

December 13, 2012 and was diagnosed with an acute [gastro-

intestinal (“GI”)] bleed. Despite treatment and surgeries over

the next few days, Mr. McCracken passed away on December 24,

2012. His Patient Data Sheet listed the diagnosis as “GI Bleed,

End Stage Liver Disease.” (N.T. 2/17/16, afternoon, at 80).

[Mr.] McCracken’s wife, Elizabeth McCracken, initiated this

medical malpractice litigation on August 16, 2013. After the

death of Elizabeth McCracken, [Mr.] McCracken’s daughter,

[Appellant], was substituted as the plaintiff.

The Honorable Denis P. Cohen, Judge of the Court of

Common Pleas, presided over a jury trial from February 12,

2016 until February 24, 2016. On February 24, 2016, the jury

returned a verdict in favor of [Appellees], finding that Dr. Burke,

Dr. Jaslow, and Chestnut Hill hospital were not negligent.

[Appellant] filed a Post-Trial Motion on March 4, 2016 and

a Supplemental Post-Trial Motion on March 7, 2016. On May 5,

2016, this Court issued an order requiring the parties to file

briefs in support of their motions with citations to the relevant

portions of the notes of testimony. This Court heard oral

argument on June 17, 2016. After careful consideration of the

issues raised by the parties, all Motions for Post-Trial Relief are

DENIED in their entirety.

Memorandum in Support of Orders Denying All Motions for Post-Trial Relief,

7/7/16, at 1-3 (emphasis omitted).1

____________________________________________

1

The trial court’s August 19, 2016 Pa.R.A.P. 1925(a) opinion incorporates

the July 7, 2016 Memorandum in Support of Orders Denying All Motions for

Post-Trial Relief as the basis for its decision.

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On July 27, 2016, Appellant filed a notice of appeal that was

premature as judgment on the verdict had not yet been entered. On

September 14, 2016, this Court entered an order directing Appellant to

praecipe for the entry of judgment and informed Appellant that the notice of

appeal would be deemed timely upon the subsequent entry of judgment

pursuant to Johnston the Florist, Inc. v. TEDCO Construction Corp.,

657 A.2d 511 (Pa. Super. 1995). Order, 9/14/16. Appellant promptly filed

a praecipe for entry of judgment on the verdict, and on September 22,

2016, judgment was entered, thus making Appellant’s notice of appeal

timely.

On appeal, Appellant presents seven issues for this Court’s

consideration:

(1) Whether the Trial Judge committed an error of law, and

abused his discretion in granting the Motion in Limine of Appellee

CHHS Hospital Company, LLC d/b/a Chestnut Hill Hospital, to

preclude any evidence or reference at the time of trial to

[Appellant] being a beneficiary to the Estate of [Mr.] McCracken,

and the Joinder Motion of Appellees Ryan Burke, M.D., David

Jaslow, M.D., and Tri-County Emergency Physicians, LLC

(Control Number 16013440), and striking with prejudice

[Appellant’s] claims under the Wrongful Death Act, where the

Trial Judge erroneously found, based on his reliance on Manning

v. Capelli, 270 Pa. Super 207, 411 A2d 252 (1979), that

[Appellant’s] voluntary emancipation at the age of 16 and lack of

evidence of financial dependence on [Appellant’s] Decedent at

the time of death, precluded her from recovering under the

Wrongful Death Act for the monetary value of such services as

guidance, tutelage, and moral upbringing that [Appellant] would

have received had the death not occurred, which was caused by

Appellees’ negligence;

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(2) Whether the Trial Judge committed an error of law, and

abused his discretion in (a) dismissing Juror Number 7 after

closing arguments based on Juror Number 7 having informed the

Court after jury selection and several days before closing

arguments that she had been to the Emergency Department

(“ED”) of Bryn Mawr Hospital with abdominal pain and headache,

(b) dismissing Juror Number 7 without questioning said juror as

to whether or not she could be objective, and (c) dismissing

Juror Number 7 where there was no prejudice to either party

from Juror Number 7 having been to the ED with one symptom-

abdominal pain, that was an issue in the case;

(3) Whether the Trial Judge committed an error of law, and

abused his discretion in imposing a compressed timetable of

February 24, 2016, for completion of trial, completion of jury

deliberation, and for the jury to render its verdict, resulting in

the jury rushing to complete jury deliberations and render a

verdict before the end of February 24th or risk having to return

to Court five (5) days later on Monday, February 29th to

continue with jury deliberations and render a verdict;

(4) Whether the Trial Judge committed an error of law, and

abused his discretion in permitting the defense to present

evidence of Decedent’s continuing use of alcohol after being

diagnosed with cirrhosis allegedly as it relates to life expectancy,

where it allowed the defense, over [Appellant’s] counsel’s

objections, and contrary to the Court’s order, to characterize the

Decedent’s behavior as alcohol abuse;

(5) Whether the Trial Judge committed an error of law, and

abused his discretion in refusing to take judicial notice, and

charge the jury on the obligations under Pennsylvania law for an

emergency department to have and enforce policies and

procedures governing care of patients in the emergency

department;

(6) Whether the Trial Judge committed an error of law, and

abused his discretion in precluding [Appellant] from testifying at

trial to the emotional grief and suffering [Appellant] and/or her

siblings endured as a result of the death of her father,

particularly where [Appellant] and her siblings had physically

witnessed the terrible pain and suffering their father was

undergoing in the hospital prior to his death on December 24,

2012; and

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(7) Whether, based on the overwhelming evidence presented at

trial by [Appellant], through the testimony of the Appellee

physicians, defense nursing fact witness, and through expert

witnesses, makes it not possible for two reasonable minds to

disagree that the verdict should have been rendered in favor of

[Appellant] and against the Appellees.

Appellant’s Brief at 5-6.

In Appellant’s first issue, she avers that the trial court erred in

granting Appellees’ motion in limine. The order granting the motion in limine

precluded any evidence regarding Appellant being a beneficiary of Mr.

McCracken’s estate and struck with prejudice Appellant’s claims under the

Wrongful Death Act.

A motion in limine is a pretrial mechanism to obtain a ruling on the

admissibility of evidence, and it gives the trial judge the opportunity to

weigh potentially prejudicial and harmful evidence before the trial occurs,

preventing the evidence from ever reaching the jury. Parr v. Ford Motor

Co., 109 A.3d 682, 690-691 (Pa. Super. 2014) (citation omitted). “A trial

court’s decision to grant or deny a motion in limine is subject to an

evidentiary abuse of discretion standard of review.” Id. (citation and

quotation marks omitted).

Questions concerning the admissibility of evidence lie within the

sound discretion of the trial court, and we will not reverse the

court’s decision absent a clear abuse of discretion. An abuse of

discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a

manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support so as to be clearly erroneous.

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Id. (internal citations omitted). “In addition, to constitute reversible error,

an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.” Id. (internal citations and quotation

marks omitted).

In ruling on the motion in limine, the trial court held that Appellant

was precluded from recovering under the Wrongful Death Act (42 Pa.C.S. §

8301) pursuant to Manning v. Capelli, 411 A2d 252 (Pa. Super. 1979). In

Manning, this Court discussed the Wrongful Death Act and held that “only

those persons who stand in a family relation to the deceased are statutorily

authorized to recover damages.” Manning, 411 A.2d at 270. A family

relation:

exists between parent and child when a child receives from a

parent services or maintenance or gifts with such reasonable

frequency as to lead to an expectation of future enjoyment of

these services, maintenance, or gifts. The term family relation as

thus used does not embrace its comprehensive definition, but is

confined to certain phases of family relation between the persons

named in the act. . . . Before there can be any recovery in

damages by one in that relation for the negligent death of

another in the same relation, there must be a pecuniary loss.

Id. (quoting Gaydos v. Domabyl, 152 A. 549, 551-552 (Pa. 1930) (internal

quotation marks omitted)).

Here, the trial court concluded that Appellant’s voluntary emancipation

at the age of sixteen, her complete lack of financial dependence on Mr.

McCracken since her emancipation, and the fact that she never resided with

him, evidenced the absence of a family relation. Memorandum in Support of

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Orders Denying All Motions for Post-Trial Relief, 7/7/16, at 4. However,

Appellant argues that “a beneficiary may recover the ‘monetary value of

such services as guidance, tutelage, and moral upbringing.’” Appellant’s

Brief at 22-23. We disagree, because in order to be entitled to such non-

pecuniary damages, Appellant was required first to show a pecuniary loss.

Manning, 411 A.2d at 255.

The trial court succinctly addressed this issue and Appellant’s demand

for non-pecuniary damages as follows:

an individual must first show pecuniary damages before he or

she is entitled to recover for non-pecuniary losses such as loss of

society and companionship under the Wrongful Death Act. See,

e.g., Manning, 411 A.2d at 255 (finding that where the appellant

was an emancipated adult at the time of her father’s death, she

had not resided with him since she was eight months old, and

since that time she had not received financial support from him,

the appellant is not entitled to share in the distribution of the

settlement proceeds of the wrongful death action); Arndt’s Adm’r

v. Davis, 34 Pa. D. & C. 444 (Pa. Com. Pl. 1964) (finding that

net proceeds recovered by an administrator in a wrongful death

action are properly disbursed only to decedent’s widow and

dependent children, to the exclusion of the emancipated

children). As such, [Appellant] has not shown any pecuniary

damages and thus cannot be considered a beneficiary under the

Wrongful Death Act.

Memorandum in Support of Orders Denying All Motions for Post-Trial Relief,

7/7/16, at 4-5.

The trial court concluded that Appellant had no family relationship or

expectancy of any interest in Mr. McCracken’s estate. Moreover, Appellant

has failed to establish that the trial court erred or abused its discretion in

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reaching this conclusion. Accordingly, Appellant is entitled to no relief on

this claim of error.

Next, Appellant asserts that the trial court erred in discharging Juror

Number Seven after closing arguments when Juror Number Seven informed

the trial court that she had just recently presented to the emergency

department of a local hospital with abdominal pain. Appellant argues this

error was compounded when Juror Number Thirteen replaced Juror Number

Seven, and Juror Number Thirteen became jury foreperson. Appellant’s

Brief at 44. Appellant now asserts that the trial court erred in replacing

Juror Number Seven, an African-American woman, with alternate Juror

Number Thirteen, a Caucasian male who was engaged to a medical student.

Appellant avers that this was an error necessitating judgment

notwithstanding the verdict (“JNOV”) or a new trial. Id. at 45.

A trial court’s decision to discharge a juror will not be disturbed on

appeal absent an abuse of discretion. Bruckshaw v. Frankford Hosp. of

City of Philadelphia, 58 A.3d 102, 106 (Pa. 2012). Additionally, when

reviewing an order denying a motion for JNOV:

[w]e must view the evidence in the light most favorable to the

verdict winner and give the verdict winner the benefit of every

reasonable inference arising therefrom while rejecting all

unfavorable testimony and inferences. We apply this standard in

all cases challenging the grant of a motion for Pennsylvania law

makes clear that a judgment notwithstanding the verdict is

proper only in clear cases where the facts are such that no two

reasonable minds could disagree that the verdict was improper.

Questions of credibility and conflicts in evidence are for the fact-

finder to resolve. This Court will not substitute its judgment

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based upon a cold record for that of the fact-finder where issues

of credibility and weight are concerned.

Dubose v. Quinlan, 125 A.3d 1231, 1238 (Pa. Super. 2015) (quotation

marks and internal citations omitted). In reviewing a trial court’s denial of a

motion for a new trial, we apply the following standard of review:

It is well-established law that, absent a clear abuse of discretion

by the trial court, appellate courts must not interfere with the

trial court’s authority to grant or deny a new trial. Thus, when

analyzing a decision by a trial court to grant or deny a new trial,

the proper standard of review, ultimately, is whether the trial

court abused its discretion. Moreover, our review must be

tailored to a well-settled, two-part analysis: We must review the

court’s alleged mistake and determine whether the court erred

and, if so, whether the error resulted in prejudice necessitating a

new trial. If the alleged mistake concerned an error of law, we

will scrutinize for legal error. Once we determine whether an

error occurred, we must then determine whether the trial court

abused its discretion in ruling on the request for a new trial.

Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1051 (Pa.

Super. 2015) (quotation marks omitted).

After review, we conclude that the trial court committed no abuse of

discretion in dismissing Juror Number Seven. The trial court explained the

rationale for dismissing Juror Number Seven as follows:

Juror Number 7 informed the court officer that she had gone to

the emergency department of Bryn Mawr Hospital to be treated

for abdominal pain. Although Juror Number 7 certainly did not

want to go to the emergency department for abdominal pain,

Juror Number 7’s visit to an emergency department for

treatment for abdominal pain conflicted with the Court’s

instructions to jurors during trial. The Court instructs the jurors

during preliminary instructions:

Do not visit the location discussed in the case and do

not conduct independent research or investigation

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about the parties, witnesses, lawyers or any other

issue about the case. You must decide all questions

of fact only based upon the evidence received in this

trial and not from any other source.... During this

trial, I must decide that the information you hear

and the exhibits you see are sufficiently reliable to

be admissible under the Rules of Evidence and the

law. Relying on any other information you obtain

outside the courtroom is not only in violation of

these rules, but it’s unfair because the parties would

not have the opportunity to refute it, explain it or

correct it. I specifically instruct you that you’re not to

conduct any searches or research that may produce

any information about the case or the parties or the

attorneys involved in the case.1 (N.T. 2/16/16 at 65-

66).

1

These instructions come from Pennsylvania

Suggested Standard Civil Jury Instructions 11.180.

By visiting a hospital emergency department for treatment

for abdominal pain, Juror Number 7 was experientially obtaining

additional information about one of the central issues in the

case[:] the standard of care for emergency room doctors

treating a patient who complains of abdominal pain. “A challenge

for cause should be granted when the prospective juror has such

a close relationship, familial, financial, or situational, with the

parties, counsel, victims, or witnesses that the court will

presume a likelihood of prejudice.” Cordes v. Associates of

Internal Med., 87 A.3d 829, 833 -34 (Pa. Super. 2014) (citing

McHugh v. P & G Paper Prods. Co., 776 A.2d 266, 270 (Pa.

Super. 2001)). This Court discharged Juror Number 7 because

she had experienced the same situation as the decedent by

presenting to an emergency department with complaints of

abdominal pain. The Court determined that it was highly

doubtful that Juror Number 7 could possibly make a decision

based solely upon the evidence presented at trial.

Unlike in Bruckshaw v. Frankford Hosp. of City of

Philadelphia, 58 A.3d 102, 105 (Pa. 2012) where a court officer

removed and substituted a juror without informing the Court or

the parties, in the instant case, the Court informed the parties

on the record that it would be removing Juror Number 7 and the

reasons for her removal:

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The Court: As to Juror Number 7, I would note that if

during jury selection we had a juror who came to us

who had just been -- let’s say a week before this trial

-- had just admitted her herself into an ER with

abdominal pain, I would excuse that juror for cause.

The Court would doubt whether that person could be

fair and impartial either consciously or unconsciously

because the person went through the same or

similar experience. Here because the juror has

actually heard the evidence already and the Court

has heard the evidence and obviously there are all

sorts of issues before the jury here about whether

doctors and the nurse and the hospital acted

appropriately, given what happened to a patient who

had stomach or abdominal pain, ten/ten, who said

he had ten/ten, pain. There’s even more reason now,

the Court having heard the evidence, and as the

jurors have heard the evidence, the Court is even

more concerned. So the Court appreciates the

objection by [Appellant] -- and [Appellant’s] attorney

can preserve this for appeal – but in the Court’s best

judgment, the Court has to excuse Juror Number 7.

[Appellant’s Counsel]: Your Honor, may I have a

moment to put on the record that, in fact, I

strenuously object to Juror Number 7 being removed

because she was not questioned as to whether she

would, in fact, be unbiased and without prejudice in

this case after hearing the evidence, notwithstanding

the fact that she had been to the emergency room,

Your Honor.

The Court: I would assume for the purpose of this

and I agree we’ve not done that because the Court

doesn’t think that’s the key consideration. So I think

the key consideration is that she had this experience.

It’s too [eerily] similar to the facts in this case right

smack in the middle of the trial. So the Court in the

exercise of the Court’s discretion, the Court is

excusing her. It just doesn’t seem appropriate to

have that juror who had the similar experience in

terms of abdominal discomfort, going to an ER right

smack in the middle of a trial with abdominal

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discomfort in the ER. So even if she said, yes, I

could put that aside and be fair and impartial, that’s

not -- because of the circumstances, that is not

something that would make a difference in the

Court’s evaluation. I appreciate your mentioning

that, but that’s why I want to put it on the record. It

wouldn’t matter to the Court whether -- whatever

said, she could be fair or not fair, I’m concerned that

may even the most subconsciously affect her

because she went through a very similar experience

with the case right here. (N.T. 2/24/16 at 110-112).

In Bruckshaw, the Supreme Court of Pennsylvania held

that “the removal of a juror can only be done by a trial court, on

the record, in open court, with notice to the parties, for cause.”

58 A.3d at 113. The removal of Juror Number 7 was therefore

proper in this case because the Court explained on the record its

reasons for removing Juror Number 7 for cause and the Court’s

decision should be deferred to on appeal. See id. at 111, 113.

After the Court properly discharged Juror Number 7, the

Court followed the fairest procedure in seating the first alternate,

Juror Number 13. See id. at 113 (“Choosing an alternate

arbitrarily, rather than in order, calls into question the decision

to choose one alternate over another.”). If [Appellant] believed

that Juror Number 13 was biased based upon his engagement to

a medical student, [Appellant] could have placed an objection on

the record at the time of trial. Because there was no objection

on the record to [J]uror [N]umber 13 serving as a juror, this

objection is waived. See Pa. R.A.P. 302(a).

Memorandum in Support of Orders Denying All Motions for Post-Trial Relief,

7/7/16, at 5-7.

Juror Number Seven reported that she had visited the emergency

department at Bryn Mawr Hospital. This experience allowed her to observe

first-hand that hospital’s treatment and care for a person presenting to an

emergency department in abdominal pain and could have impacted her

understanding of hospital protocols. Accordingly, we discern no abuse of

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discretion in the trial court removing Juror Number Seven and replacing her

with Juror Number Thirteen. Additionally, we further agree with the trial

court’s conclusion that Appellant’s failure to object to Juror Number Thirteen

being seated as a potential juror waives any issues Appellant may now have

with Juror Number Thirteen being called to replace Juror Number Seven, his

race, or his personal relationships. Accordingly, we discern no error of law

or abuse of discretion in the trial court dismissing Juror Number Seven.

Bruckshaw, 58 A.3d at 106. Because we conclude that there was no error

of law or abuse of discretion, there was no basis upon which to grant a JNOV

or a new trial. Dubose, 125 A.3d at 1238; Czimmer, 122 A.3d at 1051.

In her third issue, Appellant alleges that the trial court erred when it

imposed a deadline for completion of the trial and rushed the jury to finish

its deliberations. Appellant alleges:

It is very probable that the Trial Judge, by stating his intention

to have trial, jury deliberations, and verdict concluded by

Wednesday, February 24, 2016, in light of the Trial Judge’s

commitments on Thursday, February 25th, and February 26th

unrelated to trial, and by sending them out to deliberate on

Wednesday, February 24th around noon time, the jury concluded

that there was a de facto limit on the time the jury had available

to deliberate and come to a verdict.

Appellant’s Brief at 49. We conclude that Appellant’s claim is speculative

and a misstatement of the facts. The notes of testimony reveal that the trial

court informed the jury as follows:

THE COURT: So, ladies and gentlemen of the jury, I’ve spoken

to counsel, and they’ve have all agreed that I should ask you

this question, so I have a question actually for your decision.

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This has nothing to do with the facts of the case, but it’s more in

the line of housekeeping.

If you recall in the beginning of the case at the time of jury

selection, I told you all that we’d work no later than 5:00 o’clock.

Do you recall that? I recall that. So we have a possibility that I

wanted to raise to you and ultimately it’s your decision. Counsel

and the Court, we’re all very -- we’re trying to focus on getting

everything done by Wednesday of next week, because if we

don’t get done by Wednesday of next week, unfortunately, we

have to run into Monday the following week, so everyone is

working very hard to try to get this done by having the whole

matter done and complete by Wednesday of next week.

To accomplish that, we’re all trying to find extra time in

order to do that. That’s one reason why I told everyone to be

here at 10:30 in the morning. Originally, I was supposed to be in

criminal court until like 1:30 in the afternoon, but I did that

quickly so I could come here and squeeze in a couple of extra

hours in the morning, so it’s more likely we’d be done on

Wednesday.

Obviously, we can’t guarantee anything. It’s not like a

warranty when you buy a product and then you can return it to

the manufacturer. We can’t ... warrant anything. A trial is a

human process. But our hope is if we were successful enough to

prevail upon you and if you were so gracious to stay on Monday

till 6:00 p.m., we might be able to wrap this up on Wednesday,

because our goal would be for you not to come back the

following week, because that’s a real inconvenience, and I

realize at the same time everything is about a trial, which we’re

taking away from your lives. As I realize and counsel realizes,

every day is an inconvenience on this case and every case with a

jury trial. So we appreciate the good service of the citizens.

Now, I appreciate at the same time that there may be

issues of childcare, elder care or something like that that may

not make it possible to stay till 6:00, but if it is possible to stay

till 6:00, it will add one additional hour of testimony that will

make it -- that will be helpful in our goal to try and get

everything wrapped up by Wednesday. So I just ask if you let us

know that today, we can let the court reporter know that as well.

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Is there a problem for anybody? I know no one is happy.

I’m not asking who’s happy.

THE JUROR: Can I ask a question?

THE COURT: Yes.

THE JUROR: So if we’re going to stay until 6:00, are we going to

get like dinner or --

THE COURT: Then it would be much later.

THE JUROR: -- a lunch allowance or overtime?

THE COURT: Unfortunately, there’s nothing in the budget. We’re

not budgeted for a dinner or something like that, so we can’t

offer that to you. But our goal would be -- and, again, I can’t

promise, but [our] goal is we’re trying to avoid you coming in on

Monday, which is another day.

THE JUROR: But we’re not going to stay until 6:00 on these days

and still have to come in --

THE COURT: As I said, I can’t promise anyone anything, but I

can tell you what the goal is and the goal is to try to have

everything done by Wednesday so you don’t have to come back

on Monday. All of us, counsel, and the Court, and the court staff,

we’re all very appreciative of your time, and we’re trying to save

-- we’re doing everything we can to try to save you from coming

in on Monday.

So why don’t we let you think about that. We’ll go on with

the testimony and then we can address it at the end of the day.

N.T., 2/19/16, at 66-69.

We conclude that Appellant’s allegation is not supported by the record.

A review of the trial court’s statement to the jurors reflects a “housekeeping”

issue wherein the trial court informed jurors that concluding on February

24th was an option; it was not a mandate. Moreover, the record establishes

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that the parties agreed to the trial court’s proposed timetable, and Appellant

made no objection. It is well settled that:

[r]equiring a timely specific objection to be taken in the trial

court will ensure that the trial judge has a chance to

correct alleged trial errors. This opportunity to correct alleged

errors at trial advances the orderly and efficient use of our

judicial resources. First, appellate courts will not be required to

expend time and energy reviewing points on which no trial ruling

has been made. Second, the trial court may promptly correct the

asserted error. With the issue properly presented, the trial court

is more likely to reach a satisfactory result, thus obviating the

need for appellate review on this issue. Or if a new trial is

necessary, it may be granted by the trial court without

subjecting both the litigants and the courts to the expense and

delay inherent in appellate review. Third, appellate courts will be

free to more expeditiously dispose of the issues properly

preserved for appeal. Finally, the exception requirement will

remove the advantage formerly enjoyed by the unprepared trial

lawyer who looked to the appellate court to compensate for his

trial omissions.

Faherty v. Gracias, 874 A.2d 1239, 1249 (Pa. Super. 2005) (emphasis in

original) (quoting Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114,

116-117 (Pa. 1974)); and see Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”). 2

Accordingly, any objection to the trial court’s explanation as to the time in

which the trial was to take place and conclude is waived.

____________________________________________

2

Assuming, for the sake of argument, that we were to consider this issue on

its merits, we would be constrained to point out that Appellant’s bald claim

of error fails to establish any prejudice other than that Appellant was

displeased with the verdict.

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In her fourth issue Appellant avers that the trial court erred and

abused its discretion by permitting the defense to present evidence of Mr.

McCracken’s use of alcohol after being diagnosed with cirrhosis over

Appellant’s objection. We disagree.

We reiterate that the admissibility of evidence is left to the sound

discretion of the trial court, and we will not reverse the trial court’s decision

absent an abuse of that discretion. Parr, 109 A.3d at 690. As we

previously noted, an abuse of discretion may not be found merely because

an appellate court might have reached a different conclusion; rather, an

abuse of discretion requires a manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous. Id. at 690-691.

Prior to trial, Appellant filed a motion in limine to preclude, inter alia,

reference to Mr. McCracken’s alcohol use. On February 17, 2016, the trial

court entered an order granting in part, and denying in part, Appellant’s

motion in limine stating as follows:

1. [Appellees are] precluded from the use of the words ‘alcohol

abuse’ or characterizing the decedent’s behavior as such.

[Appellees are] permitted to characterize the decedent’s

behavior as ‘alcohol use.’ [Appellees are] further permitted

to present evidence regarding decedent’s use of alcohol

following a diagnosis of cirrhosis of the liver and how that

continued use relates to the decedent’s life expectancy.

Order, 2/17/16 at unnumbered 1, ¶ 1 (emphases added).

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On appeal, Appellant argues that evidence of Mr. McCracken’s alcohol

use was prejudicial and encouraged the jury to conclude that he contributed

to his injuries and subsequent demise. Appellant’s Brief at 51. However, as

noted above, the trial court permitted reference to Mr. McCracken’s alcohol

use as it related to life expectancy. Appellant fails to illustrate how this

ruling was an abuse of discretion. Moreover, the issue of life expectancy

was an issue of damages, and because the jury did not reach damages since

Appellees were not found to be negligent, we discern no prejudice. Finally,

we note that at trial, Appellees did reference Mr. McCracken’s use of alcohol.

N.T., 2/17/16, Afternoon, at 26-36. Appellant claims that this testimony

came in over Appellant’s objection as it highlighted Mr. McCracken’s abuse

of alcohol. Appellant’s Brief at 52-53. The record reflects no objection by

Appellant on this issue. See N.T., 2/17/16, Afternoon, at 26-36. We

conclude that Appellant is entitled to no relief.

In her fifth claim of error, Appellant argues that the trial judge

committed an error of law or abused its discretion in refusing to take judicial

notice of 28 Pa.C.S. § 117.413 and charge the jury on the obligations an

emergency department has to enforce policies and procedures governing the

____________________________________________

3

In her brief, Appellant cites to 28 Pa.C.S. § 117.41. However, we conclude

that Appellant intended to cite to 28 Pa. Code § 117.41, which discusses

emergency patient care.

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care of patients in the emergency department. Appellants Brief at 53. We

conclude that the trial court committed no error.

Our standard of review regarding jury instructions is

limited to determining whether the trial court committed a clear

abuse of discretion or error of law which controlled the outcome

of the case. Error in a charge occurs when the charge as a whole

is inadequate or not clear or has a tendency to mislead or

confuse rather than clarify a material issue. Conversely, a jury

instruction will be upheld if it accurately reflects the law and is

sufficient to guide the jury in its deliberations.

The proper test is not whether certain portions or isolated

excerpts taken out of context appear erroneous. We look to the

charge in its entirety, against the background of the evidence in

the particular case, to determine whether or not error was

committed and whether that error was prejudicial to the

complaining party.

In other words, there is no right to have any particular

form of instruction given; it is enough that the charge clearly

and accurately explains the relevant law.

Czimmer, 122 A.3d at 1052 (internal quotation marks and citations

omitted).

As stated, Appellant argues that the trial court should have taken

judicial notice of 28 Pa. Code § 117.41 and instructed the jury on that

section. We note that “[t]he contents of the code, of the permanent

supplements thereto, and of the bulletin, shall be judicially noticed.” 45

Pa.C.S. § 506. The relevant section of the Pennsylvania Code provides as

follows:

Emergency patient care shall be guided by written policies

and procedures which delineate the proper administrative and

medical procedures and methods to be followed in providing

emergency care. These policies and procedures shall be clear

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and explicit; approved by the medical staff and hospital

governing body; reviewed annually; revised as necessary; and

dated to indicate the date of the latest review or revision, or

both.

28 Pa. Code § 117.41(a).

The trial court addressed this issue as follows:

[Appellant] contends that this Court erred by not taking

judicial notice of 28 Pa. [Code] § 117.41, which relates to

policies and procedures for emergency patient care. First,

[Appellant] has waived this issue as she failed to note in her

brief where on the record she requested the judicial notice of

this statute in violation of this Court’s February 16, 2016 Order.4

[Appellant] argues that “the contents of 28 Pa. [Code] § 117.41

would be instructive for the jury to understand that [Appellee]

Chestnut Hill Hospital was required by statute to have written

policies and procedures.” However, [Appellant] failed to present

evidence at trial that [Appellee] Chestnut Hill Hospital violated

the standard of care by not having appropriate written policies.

In fact, [Appellant’s] expert, Dr. Paynter, who was qualified as

an expert in corporate liability, testified that he did not review

any policies and procedures of Chestnut Hill Hospital. (N.T.

2/19/16, morning, at 60 -61).

4

The Court is also confused by [Appellant’s]

argument regarding judicial notice of policies and

procedures as [Appellant] inconsistently argues both

that Dr. Burke failed to follow Chestnut Hill Hospital’s

policies and that Chestnut Hill Hospital did not have

policies. On page 51, [Appellant] argues that Dr.

Burke failed to document a treatment plan “despite a

policy at Defendant Chestnut Hill Hospital that a

patient’s treatment plan be documented in writing …”

However, on page 51, [Appellant] argues that

[Appellee] Chestnut Hill Hospital “failed to produce

any policy, procedure, guideline, rule or protocol”

and that [Appellee] Chestnut Hill failed to have the

written policies and procedures required by 28 Pa.

[Code] § 117.41.

In [Appellant’s] rebuttal to [Appellees’] closing statements,

instead of arguing that Chestnut Hill Hospital did not have

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appropriate policies and procedure, [Appellant] argued that the

policies and procedures regarding chain of command were not

followed:

Policies and procedures was a non-issue?

No, it wasn’t a non-issue.

The issue of the chain of command is a policy and

procedure issue.

In fact, their own expert, Dr. Kolecki, said, yeah,

they have policy and procedure on chain of

command.

Ms. Whitfield said, I know the chain of command

would mean they had a policy on it. It was not

enforced.

And he’s telling you it’s not an issue.

Of course it was. (N.T. 2/24/16 at 98).

Informing the jury that there is a law that requires

emergency departments to have policies and procedures would

only serve to confuse and mislead the jury when [Appellant]

failed to present testimony that Chestnut Hill Hospital did not

have the appropriate policies and procedures for emergency

patient care. This Court therefore appropriately determined not

to take judicial notice of 28 Pa. [Code] § 117.41. See Carter v.

Adlesic. 2002 WL 34103072 (No. GD98-015779) (Pa. Com. Pl.

Allegheny, January 28, 2002); (“45 Pa. C.S. § 506 does not

mean that wherever a request for judicial notice of law is made,

the court must read the provisions of a state regulation to the

jury, irrespective of their relevance to the case at hand.”).

Memorandum in Support of Orders Denying All Motions for Post-Trial Relief,

7/7/16, at 9-10. We find the case cited by the trial court is persuasive on

this issue. See Sysco Corp. v. FW Chocolatier, LLC, 85 A.3d 515, 520

n.2 (Pa. Super. 2014) (stating that common pleas court decisions are not

binding precedent for this Court, but they may be considered for their

persuasive authority). In Carter v. Adlesic, 2002 WL 34103072 (Pa.

Common Pleas (Allegheny), January 28, 2002), the court stated as follows:

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It first should be noted that the type of judicial notice

involved here (as Plaintiffs acknowledge in their brief), is judicial

notice of law, not judicial notice of facts.

According to Leonard Packel & Anne Bowen Poulin,

Pennsylvania Evidence § 221 (2d Ed. 1999):

It is customarily the duty of the jury to find the

facts. It is customarily the duty of the judge to find

the law and present the law to the jury. This process

of finding the law has been called judicial notice of

law. Labeling this process judicial notice has very

little practical utility for the law of evidence and may

foster confusion in some cases.

Similarly, in the comment to Pennsylvania Rule of Evidence

201, it is noted that: “In determining the law applicable to a

matter, the judge is sometimes said to take judicial notice of the

law.” (citing 21 Wright and Graham, Federal Practice and

Procedure § 5102 (1977)), where it is also noted that:

Judicial notice would be a sufficiently

complicated concept if it were limited to facts; but

due to the curious penchant of legal thinkers for

using the same word to describe quite different

phenomena, the judge who consults the advance

sheets for the latest word from higher courts is said

to be taking “judicial notice” of the law.

Id. at 461.

Thus, the fact that this state dental regulation was brought

to my attention by judicial notice (as opposed to say, a point for

charge), is not particularly significant in this case. Of course it is

true that 45 Pa. C.S. § 506 states: “The contents of the code, of

the permanent supplements thereto, and of the bulletin shall be

judicially noticed.” (emphasis added). This provision relieves the

proposing party from the bother of bringing in witnesses to

prove the existence of a regulation. (Thus, I accepted as true,

without requiring any evidence on the subject, that the cited

regulations were existing and valid state dental regulations.) But

this does not mean that wherever a request for judicial

notice of law is made, the court must read the provisions

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of a state regulation to the jury, irrespective of their

relevance to the case at hand.

The court still must analyze the regulation (as with all law)

and determine its applicability to issues in the case and the facts

adduced at trial. Here any minimal relevance was outweighed by

the danger of misleading the jury.

Carter v. Adlesic, 2002 WL 34103072 (Pa. Common Pleas (Allegheny),

January 28, 2002) (boldface emphasis added).

We discern no error in the trial court’s denial of Appellant’s request to

take judicial notice of the Pennsylvania Code and charge the jury on section

117.41. Appellant argued that there were procedures that were not followed

and also argued that there were no procedures at all. Thus, we discern no

abuse of discretion in the trial court’s conclusion that instructing the jury on

28 Pa. Code § 117.41 would have caused confusion.

In her sixth issue on appeal, Appellant avers that the trial judge erred

and abused his discretion in precluding Appellant from testifying as to the

emotional grief and suffering she and her siblings endured due to the death

of Mr. McCracken. After review, we discern no abuse of discretion.

It is well settled that under the Wrongful Death Act, damages for

mental suffering, grief, or distress of mind are not recoverable. Gaydos,

152 A.2d at 552. Thus, there was no error of law or abuse of discretion in

the trial court precluding Appellant from testifying as to any grief or suffering

she or her siblings endured. Moreover, we point out that if such testimony

were permitted, it would be relevant only to damages and not causation. As

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the jury concluded that Appellees were not negligent, damages were never

at issue and, therefore, any error in precluding such testimony was

harmless. See Bensinger v. University of Pittsburgh Medical Center,

98 A.3d 672, 683 n.12 (Pa. Super. 2014) (stating that an error is deemed

harmless if the court determines that the error could not have contributed to

the verdict).

In her final claim of error, Appellant argues that the trial court should

have granted JNOV or a new trial based on the evidence. Appellant’s Brief

at 57. The standards we apply when reviewing a trial court’s ruling on a

motion for a new trial or JNOV were set forth above, and we need not

restate them. Czimmer, 122 A.3d at 1051; Dubose, 125 A.3d at 1238.

Here, the record reveals that Appellant and Appellees called upon

expert witnesses who testified as to whether Appellees met the standard of

care. Appellant called Dr. Ronald Paynter as an expert, and he testified that

Appellees’ treatment fell below the standard of care because there was a

delay in diagnosing Mr. McCracken’s condition. N.T., 2/18/16, Morning, at

84-85. Dr. Paynter opined that a CT scan should have been conducted when

Mr. McCracken presented in the emergency department on December 12,

2012. Id. at 59-60. Dr. Paynter also testified that Appellees deviated from

the standard of care in prescribing Ibuprofen to Mr. McCracken as Ibuprofen

can cause gastrointestinal bleeding. Id. at 78-81.

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On cross-examination, Dr. Paynter testified that Mr. McCracken had

been treated for an ulcer beginning in February of 2012, nearly ten months

earlier. N.T., 2/18/16, Afternoon, at 11. However, Dr. Paynter conceded

that Mr. McCracken may not have been bleeding when he presented at the

emergency department on December 12, 2012:

Q So and it’s your opinion, to a reasonable degree of medical

certainty, that if a CT scan had been performed at sometime

between 5:30 and 8:30 in the morning on the 12th, it would

have been diagnostic for a bleeding ulcer, correct?

A It may not have been … bleeding at that point, but it would

have been diagnostic of an abnormality that was causing the

pain, yes, and would have likely shown some thickening of the

area where the ulcer is forming or some inflammation.

Id. at 70. Nevertheless, Dr. Paynter maintained that a CT scan was

warranted.

However, Appellees’ expert, Dr. John Patterson, testified that the

treatment rendered by Appellees, Dr. Burke and Dr. Jaslow, did not fall

below the standard of care. N.T., 2/22/16, Morning, at 55. Dr. Patterson

testified that when Mr. McCracken presented to the emergency department

on December 12, 2012, a CT scan was not warranted. Id. at 78. Despite

Mr. McCracken’s complaints of pain, Mr. McCracken’s abdominal exam was

benign, and Mr. McCracken was in no distress. Id. Dr. Patterson concluded

that based on Mr. McCracken’s vital signs and the physical examination, a CT

scan was unwarranted, and, therefore, Dr. Burke’s treatment did not fall

below the standard of care. Id. at 79. Moreover, and for these same

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reasons, Dr. Patterson opined that a GI consult was unwarranted. Id. at 79-

80. Finally, Dr. Patterson opined that Dr. Jaslow’s decision to discharge Mr.

McCracken and prescribe Ibuprofen was reasonable. Id. at 97. Ibuprofen

was within the standard of care due to Mr. McCracken’s medical history and

existing liver damage as other pain medication is toxic to the liver. Id. at

99. Moreover, Dr. Patterson stated that the administration of Ibuprofen did

not contribute to Mr. McCracken returning to the emergency department less

than two days later, because it was such a short course of Ibuprofen. Id. at

100. Dr. Patterson noted also that subjective pain scales, where a patient

rates his level of pain on a scale of one to ten, are not helpful and clinicians

tend to use their own judgment in determining treatment. Id. at 103-104.

Dr. Patterson concluded that the treatment Mr. McCracken received in the

emergency department did not lead to his demise. Id. at 106.

As discussed above, JNOV can only be granted in a clear case where

no two reasonable minds could differ. Dubose, 125 A.3d at 1238. Here,

there were different conclusions reached by the experts, and the jury opted

to credit the testimony of Appellees’ expert. When viewed, as we must, in

the light most favorable to the verdict winner, we discern no error or abuse

of discretion. “This Court will not substitute its judgment based upon a cold

record for that of the fact-finder where issues of credibility and weight are

concerned.” Id. There was no error on the part of the trial court that

prejudiced Appellant and required a new trial. Czimmer, 122 A.3d at 1051.

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For the reasons set forth above, we discern no basis upon which to

disturb the judgment entered in favor of Appellees. Accordingly, we affirm.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2017

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