James, F. v, Albert Einstein Medical Center

J-A17040-17

2017 PA Super 293

FLORENCE JAMES, INDIVIDUALLY AND IN THE SUPERIOR COURT OF

AS THE EXECUTRIX OF THE ESTATE OF PENNSYLVANIA

LAFAYETTE JAMES (DECEASED),

Appellant

v.

ALBERT EINSTEIN MEDICAL CENTER,

RONALD WALOFF, M.D., ARIA HEALTH,

THE FRANKFORD HOSPITAL OF THE CITY

OF PHILADELPHIA, A/K/A AND OR D/B/A

FRANKFORD HOSPITAL - TORRESDALE

CAMPUS, ARIA HEALTH SYSTEM, ARIA

HEALTH PHYSICIANS SERVICES, GLENN

MEREWITZ, M.D., JEFFREY GREENSPAN,

D.O., OXFORD CIRCLE FAMILY

MEDICINE, ADAM S. PASTERNACK, D.O.,

THEODORE BURDEN, M.D., M.B.A. AND

BURDEN-NEWTON MEDICAL

ASSOCIATES,

Appellees No. 1723 EDA 2016

Appeal from the Judgment Entered May 13, 2016

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 00276 June Term, 2012

BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED SEPTEMBER 12, 2017

Appellant, Florence James, individually and as the executrix of the

estate of her deceased brother, Lafayette James, appeals from the jury

verdict of no negligence in this medical malpractice claim. We affirm.

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*

Retired Senior Judge assigned to the Superior Court.

J-A17040-17

We note at the outset that at seventy-eight pages, Appellant’s brief is

more than two and a half times the “safe harbor” maximum of thirty pages

(2.6 times, to be precise). Counsel for Appellant certifies that the brief

consists of 13,971 words, twenty-nine words less than the specified limit of

14,000 words prescribed in our rules of appellate procedure. (See

Certification of Compliance with Word Count Limit, 3/24/17); see also

Pa.R.A.P. 2135(a)(1).

However, on independent examination, we confirm a count of 18,519

words, making the brief about a third longer than the maximum permissible

length, without permission. It appears that counsel, or his word processor,

misstated the count by over 4500 words (4548, to be precise), failing to

comply with the requirements of Pa.R.A.P. 2135.

We could issue a rule to show cause order, with the possible sanction

of quashal unless counsel provides an adequate explanation for the

discrepancy. See Commonwealth v. Spuck, 86 A.3d 870, 877 (Pa. Super.

2014), appeal denied, 99 A.3d 77 (Pa. 2014).

However, we decline to do so for reasons of judicial economy. While

the brief is excessively rambling and could have benefited from more careful

editing, nothing in the available record suggests that reworking the existing

materials would furnish any proper basis to disturb the jury’s verdict. To

allow (or require) another round of briefs would place an additional burden

on the Appellees, and their counsel, and merely delay the inevitable.

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Accordingly, to the extent possible, we will review Appellant’s non-compliant

brief on the merits, despite the obvious procedural defects.

This is a complicated and convoluted case, but the basic themes of the

trial and the appeal may be simply stated. Appellant alleges that the

defendants/Appellees, five physicians and the institutional medical providers

for which they practiced, failed, for a period of over six years, from

December of 2004 until March of 2011, to diagnose the cause of her

brother’s various recurring abdominal problems. In 2011, after a CT scan,

liver biopsy, colonoscopy, and other tests, Lafayette was determined to have

a neuroendocrine carcinoid tumor.1 He died three years later, in February of

2014.2

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1

For background context, we take judicial notice that neuroendocrine

tumors are a highly diverse group of tumors formed by neuroendocrine cells.

Carcinoid tumors are by far the most common type of neuroendocrine tumor

found in the gastrointestinal system. See the Memorial Sloan Kettering

Cancer Center website, available at http://www.mskcc.org.

A carcinoid tumor is a specific type of neuroendocrine tumor.

Carcinoid tumors most often develop in the GI (gastrointestinal) tract, in

organs such as the stomach or intestines, or in the lungs. More than one

carcinoid tumor can develop in the same organ.

Because carcinoid tumors develop from neuroendocrine cells, they can

make high levels of neuropeptides and amines, which are hormone-like

substances. However, these substances may not be released in large

enough amounts to cause symptoms, or the substances may be defective

and not cause symptoms. A carcinoid tumor can grow slowly for many years

without causing symptoms. Although a carcinoid tumor is cancerous, it has

been described as “cancer in slow motion.” For additional information, See

(Footnote Continued Next Page)

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At trial, Appellant argued, in effect, that defendants/Appellees failed to

order the proper follow-up diagnostic tests, or to make appropriate referrals

to specialists. As a result of this delay in diagnosis, Appellant maintains,

decedent/Lafayette’s tumor grew until it metastasized and became

incurable.

Appellees defended on the ground that the physicians met the

appropriate standard of care in all respects. They also contended that

Lafayette was a noncompliant patient, who over the years failed to follow

through on various referrals to specialists, failed to return for scheduled

follow-up visits, and failed to present himself (in one instance, even failed to

stay in the emergency room) for additional test procedures. The available

record confirms that for the most part, decedent Lafayette only presented

every year or two, when his abdominal symptoms were acute.3

Pertinent to issues raised on appeal, at trial, counsel for Appellant

objected to the trial court’s acceptance of Dr. Steven Peikin as an expert

_______________________

(Footnote Continued)

http://www.cancer.net/cancer-type/carcinoid-tumor/introduction (sponsored

by the American Society of Clinical Oncology).

2

Lafayette brought suit before he died. After his death, his sister was

substituted as plaintiff.

3

Otherwise, he often would not follow up with his medical providers, or only

consult with them on unrelated issues, such as to obtain a prescription for

Viagra, without, however, reporting any ongoing symptoms related to his

abdominal problems. (See Trial Court Opinion, 2/10/17, at 2-3).

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defense witness on oncology.4 Appellant also tried to introduce evidence

supporting a loss of consortium by testimony from the decedent’s mother.

Counsel also objected to certain jury instructions. After a ten-day trial, the

jury rendered a defense verdict, finding no negligence by any of the named

defendants.

This timely appeal followed the denial by operation of law of

Appellant’s motion for a judgment notwithstanding the verdict (JNOV).5

Appellant raises six questions on appeal.

(1) Whether the [t]rial [j]udge erred in qualifying Appellee

Dr. Jeffrey Greenspan’s gastrointestinal expert as an expert in

oncology, thereby essentially denying in part Appellant’s Motion

In Limine, and allowing a gastroenterologist to offer causation

and damages testimony outside the scope of his field of practice,

thereby warranting JNOV in Appellant’s favor, or, in the

alternative, a new trial[?]

(2) Whether the [t]rial [j]udge erred in sustaining

Appellees’ objection to the testimony of Appellant’s Decedent’s

mother on the impact of the death of her son on her life, based

on erroneous Appellees’ argument at the time of her testimony

that she was not a beneficiary to the action, whereas Decedent’s

mother clearly is in fact a recognized beneficiary under the

Wrongful Death Act, thereby warranting JNOV in Appellant’s

favor, or, in the alternative, a new trial[?]

____________________________________________

4

Specifically, the court accepted Dr. Peikin as “an expert in the field of

gastroenterology, carcinoid syndrome, and carcinoid cancers related to

gastroenterology.” (N.T. Trial, 11/19/15 PM, at 31).

5

Appellant filed a timely court-ordered statement of errors, on June 24,

2016. The trial court filed an opinion on February 10, 2017. See Pa.R.A.P.

1925.

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(3) Whether the [t]rial [j]udge erred in its instruction to

the jury on the definition of “injuries,” when the jury inquired

during deliberations as to the definition of injuries of the

Appellant’s Decedent allegedly caused by the negligence of the

Appellees, for the [t]rial [j]udge’s explanation of “injuries,” was

inconsistent with injuries as set forth in the Wrongful Death and

Survival Acts, and the Suggested Standard Jury charges on

injuries under the Wrongful Death and Survival Acts, thereby

warranting JNOV in Appellant’s favor, or, in the alternative, a

new trial[?]

(4) Whether the [t]rial [j]udge erred by charging the jury a

second time on the issue of physician negligence (which was

Question Number 1 on the verdict sheet), where the nature of

the jury’s question during jury deliberation indicated that the

jury had decided the issue of physician negligence adverse to the

Appellees, and was focused on the impact of comparative

negligence of the Appellant’s Decedent (which was Question

Number 3 on the verdict sheet) on the overall verdict,

particularly where the jury requested clarification on Question

Number 5 relating to appointment of percentage of liability on

Appellees whose conduct were found to be a factual cause of

injury to the Appellant’s Decedent, thereby warranting JNOV in

Appellant’s favor, or, in the alternative, a new trial[?]

(5) Whether the [t]rial [j]udge erred by instructing the

jury multiple times, at the insistence of Appellees’ counsel, that

Appellant’s medical oncology expert Dr. Andrew Schneider was

being presented as a witness on causation only, and not

standard of care, where no such duplicative instructions were

ever provided by the [t]rial [j]udge as to any other witness,

thereby tainting the jury’s prior instruction when the witness was

qualified as an expert at the conclusion of voir dire, thereby

warranting JNOV in Appellant’s favor, or, in the alternative, a

new trial[?]

(6) Whether, based on the overwhelming evidence

presented at trial by the Appellant, through the testimony of the

Appellee physicians and through expert witnesses, including

Appellees’ own expert witnesses, makes it not possible for two

reasonable minds to disagree that the verdict should have been

rendered in favor of the Appellant and against the Appellees[?]

(Appellant’s Brief, at 6-7).

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We observe that despite the narrative emphasis in Appellant’s brief on

foregone diagnostic opportunities, (see id. at 8-27), the principal focus of

the appeal is on procedural claims of trial court error, chiefly involving the

scope of admissible expert testimony, and various instructions the trial court

gave the jury. We also observe that Appellant’s issues tend to overlap

somewhat, particularly as to jury instructions and the scope of certain expert

testimony. Finally, in a protracted catchall argument, (the sixth claim),

counsel for Appellant claims that she is entitled to JNOV (or a new trial).6

(See Appellant’s Brief, at 57-77). On independent review, we conclude that

none of Appellant’s issues merit relief.

Appellant’s first issue challenges the trial court’s acceptance of Dr.

Steven Peikin, Dr. Greenspan’s expert witness, as an expert in oncology.7

(See Appellant’s Brief, at 6). The thrust of Appellant’s argument is that Dr.

Peikin was improperly permitted to testify outside the scope of his primary

specialty, gastroenterology. (See id. at 25, 28-30). We disagree.

The decision of the trial judge to admit expert testimony may be

reversed only where there has been an error of law or an abuse

of the substantial discretion vested in the trial court. The

Pennsylvania Supreme Court has repeatedly held that the

____________________________________________

6

However, all of Appellant’s claims raise the issue of JNOV (or a new trial),

directly or indirectly.

7

Counsel for Appellant timely objected to the trial court’s acceptance of Dr.

Peikin as an expert on oncology. (See N.T. Trial, 11/19/15 PM, at 7, 31).

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standard for evaluating the qualifications of an expert witness

under Pennsylvania law is a liberal one:

The test to be applied when qualifying an expert

witness is whether the witness has any reasonable

pretension to specialized knowledge on the subject under

investigation. If he does, he may testify and the weight to

be given to such testimony is for the trier of fact to

determine.

* * *

In the area of medicine, specialties sometimes

overlap and a practitioner may be knowledgeable in more

than one field. Different doctors will have different

qualifications, some doctors being more qualified than

others to testify about certain medical practices. It is,

however, for the jury to determine the weight to be given

to expert testimony, in light of the qualifications shown by

the expert witness.

B.K. ex rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1182 (Pa.

Super. 2003), appeal denied, 847 A.2d 1276 (Pa. 2004) (citations and

internal quotation marks omitted) (emphasis in original).

Here, it bears noting that Appellant’s argument is not supported by

controlling authority. Appellant cites McDaniel v. Merck, Sharp & Dohme,

533 A.2d 436 (Pa. Super. 1987), appeal denied, 551 A.2d 215 (Pa. 1988).

(See Appellant’s Brief at 29). However, even McDaniel recognized that

“[e]xperts in one area of medicine have been ruled qualified to address other

areas of specialization where the specialties overlap in practice, or where the

specialist has experience in another related medical field.” McDaniel,

supra at 442 (collecting cases).

The McDaniel Court explained:

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The law regarding the qualification of witnesses as experts

is well established. It is true that whether a witness has been

properly qualified to give expert opinion testimony is vested in

the discretion of the trial court. The Pennsylvania standard of

qualification for an expert witness is a liberal one. If a witness

has any reasonable pretension to specialized knowledge on the

subject under investigation he may testify, and the weight to be

given to his evidence is for the jury. Although the witness must

demonstrate some special knowledge or skill, there is no

requirement that a witness acquire that knowledge as a

result of formal schooling; expertise acquired by

experience is expertise nonetheless.

Id. at 440 (citations and internal quotation marks omitted; emphasis

added).

Statutory law supports the same result. In pertinent part, the Medical

Care Availability and Reduction of Error (MCARE) Act, 40 Pa. Stat. Ann.

§§ 1303.101-1303.910, provides that:

(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 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-year

time period.

40 Pa. Stat. Ann. § 1303.512 (emphases added).

In this case, counsel for Appellant obtained Dr. Peikin’s concession that

he is not board certified in oncology. (See Appellant’s Brief, at 29).

Nevertheless, there is no dispute that Dr. Peikin is board certified in internal

medicine and gastroenterology. He was previously on the faculty of

Jefferson Medical College for twelve years. He is the head of

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Gastroenterology and Liver diseases at Cooper University Hospital, and is an

adjunct professor at the University of Texas M.D. Anderson Cancer Center.

Dr. Peikin testified that as a gastroenterologist, he diagnoses cancer. At

Cooper, he is on the “tumor board,” a multidisciplinary team which monitors

cancer patients and decides on courses (“modalities”) of treatment. Earlier

in his medical career, after graduating from Jefferson Medical College, he

completed a fellowship in gastroenterology at Harvard (where he was

assigned to Massachusetts General Hospital). He also did a two year

fellowship in endocrine tumors (the tumors at issue here) at the National

Institutes of Health.

We note that the requirements for expert testimony on standard of

care are even more stringent than the requirements for expert testimony on

causation. Under either standard, however, we discern no error of law or

abuse of discretion in the trial court’s decision to accept Dr. Peikin as an

expert in the field of carcinoid tumors. Appellant’s first issue does not merit

relief.

In her second issue, Appellant challenges the limitation of the

testimony of Florence James, mother of the decedent (Mother), about her

pain and suffering. (See Appellant’s Brief, at 6). Appellant argues that

Mother was improperly prohibited from testifying about the impact of the

death of her son on her life. (See id. at 31-37). We disagree.

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We observe that Mother was not a plaintiff in this lawsuit.

Nevertheless, the trial court permitted Mother to testify about her pecuniary

losses as a beneficiary under the wrongful death statute. However, the trial

court sustained defendants’ objections to questions about Mother’s pain and

suffering. After this ruling, Appellant’s counsel declined to question Mother

further.

Counsel for Appellant argues, correctly, that parents are included as

potential beneficiaries under the Wrongful Death Statute. (See Appellant’s

Brief, at 35).

In pertinent part, the statute provides:

(b) Beneficiaries.─Except as provided in subsection (d),

the right of action created by this section shall exist only for the

benefit of the spouse, children or parents of the deceased,

whether or not citizens or residents of this Commonwealth or

elsewhere. The damages recovered shall be distributed to the

beneficiaries in the proportion they would take the personal

estate of the decedent in the case of intestacy and without

liability to creditors of the deceased person under the statutes of

this Commonwealth.

42 Pa.C.S.A. § 8301(b) (emphasis added).

However, Mother would not be entitled to damages for the loss of

consortium with regard to her son. It is well-settled that Pennsylvania does

not recognize a right of filial consortium. See Machado v. Kunkel, 804

A.2d 1238, 1244 (Pa. Super. 2002), appeal denied, 819 A.2d 547 (Pa.

2003); see also Jackson v. Tastykake Inc., 648 A.2d 1214, 1217 (Pa.

Super. 1994) (collecting cases). The trial court properly sustained

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objections to testimony about mother’s pain and suffering, which raised the

issue of mother’s loss of consortium. Appellant’s second claim does not

merit relief.

Appellant’s third, fourth, and fifth issues all challenge jury instructions

of the trial court. (See Appellant’s Brief, at 37-44, 45-52, 52-56). We

address them together.

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.

Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015), appeal denied,

125 A.3d 778 (Pa. 2015) (citations and internal punctuation omitted).

Here, Appellant fails to demonstrate error in the various challenged

jury instructions. Instead, her counsel purports to interpret, with no source

cited, what the jury may have been thinking when it raised various

questions, and what conclusions it may have already reached. (See,

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e.g., Appellant’s Brief, at 41) (“A reasonable interpretation of the jury’s

question . . . is . . .”); (id. at 45) (“[T]he nature of the jury’s question . . .

indicated that the jury had decided the issue of physician negligence

adverse to the Appellees . . . .”) (emphasis added).

We decline Appellant’s invitation to engage in speculation or conjecture

about what the jury, collectively or individually, may have been thinking

when it asked the trial court a clarification question, let alone, presume to

direct the trial court, as counsel suggests, to engage in specific procedures

based on any such speculation. (See Appellant’s Brief, at 51) (arguing the

trial court should not have re-read the burden of proof charge to the jury

because the nature of the jury’s question suggested the jury had already

decided the issue of physician negligence adversely to the defendants).

Appellant’s self-serving speculations are unsupported, and unwarranted; in

any event they fail to demonstrate actionable error or abuse of discretion by

the trial court. Appellant’s third and fourth claims do not merit relief.

On the fifth claim, Appellant challenges the trial court’s cautionary

instructions on the scope of testimony of plaintiff/Appellant’s oncology

expert, Dr. Andrew Schneider. Counsel for Appellant had agreed in advance

to limit the scope of Dr. Schneider’s testimony to causation, apparently in

recognition of the fact that Dr. Schneider was not qualified to testify as an

expert on standard of care. Nevertheless, counsel persisted in asking (and

Dr. Schneider repeatedly volunteered testimony), whether the defendant

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physicians rendered a timely diagnosis, an implicit standard of care question,

not correlated to causality. On defense objection, the trial court responded

by reminding the jury through cautionary instructions that Dr. Schneider’s

expert testimony was limited to causation, not standard of care.

On independent review, we conclude that the trial court’s explanation

for the repeated cautionary instructions, necessitated by the repeated failure

of both Appellant’s counsel and Dr. Schneider to abide by the agreed-on

restrictions, was more than adequate to demonstrate that no error of law or

abuse of discretion occurred. (See Trial Ct. Op., at 11). Appellant’s fifth

claim does not merit relief.

Finally, in her sixth claim, Appellant argues generally that the trial

court improperly denied JNOV. (See Appellant’s Brief, at 57-77). We

disagree.

Our standard of review of an order denying judgment

n.o.v. is whether, reading the record in the light most favorable

to the verdict winner and granting the benefit of every favorable

inference, there is sufficient competent evidence to support the

verdict. Any conflict in the evidence must be resolved in the

verdict winners’ favor. Judgment n.o.v. may be granted only in

clear cases where the facts are such that no two reasonable

minds could fail to agree that the verdict was improper.

Tillery v. Children's Hosp. of Philadelphia, 156 A.3d 1233, 1239–40 (Pa.

Super. 2017) (citations omitted).

Appellant maintains that because of the “overwhelming amount of

evidence” in support of her claims, no two reasonable minds could disagree

that the jury rendered an incorrect verdict. (Appellant’s Brief, at 58). It

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bears noting that Appellant uses this unwarranted assumption as a

springboard to reargue virtually the entire case. (See id. at 57-77).

Appellant’s reargument misapprehends the purpose of appellate

review. This is an error correcting Court. We do not sit to re-weigh the

evidence and, if so inclined, overturn the jury’s verdict. Instead, to prevail

on appeal, it was Appellant’s burden to prove an error of law, or that no two

reasonable minds could disagree that the verdict was in error.

Under our standard of review, our role is to read the record in the light

most favorable to the verdict winners and, granting the verdict winners the

benefit of every favorable inference, to determine if there is sufficient

competent evidence to support the verdict. See Tillery, supra at 1239–40.

Mindful of that standard, we conclude that there is. For Appellant to prevail

on a claim for JNOV it is not enough for Appellant’s argument merely to

recite a self-serving version of the facts and to frame the conclusion in the

language of the standard. (See Appellant’s Brief, at 77). Appellant’s claim

for JNOV would fail under our standard of review.

The death of Lafayette James is understandably an occasion of

sadness for his survivors. But this family loss cannot and should not prevent

us from deciding Appellant’s claims according to well-settled precedent by

long established legal procedures. Under our standard of review, Appellant

has failed to prove any actionable error in the jury’s verdict. Furthermore,

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Appellant failed to prove any error or abuse of discretion in the trial court’s

rulings.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2017

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