Snody, S. v. Ettlinger, R.

J-A03009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SKYAMBER SNODY, INDIVIDUALLY : IN THE SUPERIOR COURT OF

AND AS ADMINISTRATRIX OF THE : PENNSYLVANIA

ESTATE OF KARL R. SNODY, :

DECEASED :

:

Appellant :

:

:

v. : No. 1153 MDA 2019

:

:

ROBERT A. ETTLINGER, M.D., :

PINNACLE HEALTH SYSTEM, :

PINNACLE HEALTH MEDICAL GROUP :

D/B/A PINNACLE HEALTH FAMILY :

CARE MILLERSBURG :

Appeal from the Judgment Entered July 12, 2019

In the Court of Common Pleas of Dauphin County Civil Division at No(s):

2016-CV-9362-MM

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 21, 2020

SkyAmber Snody (“Snody”), individually and as administratrix of the

estate of Karl R. Snody, Deceased (“Decedent”), appeals from the judgment,

entered in the Court of Common Pleas of Dauphin County, following a jury

verdict in favor of Appellees. Upon careful review, we affirm.

The trial court summarized the factual background of this case as

follows:

[Snody alleged] that Dr. [Robert A.] Ettlinger, a [f]amily

[p]ractitioner, negligently prescribed [Decedent] excessive

amounts of opioids and benzodiazepines over a five-year period

which caused his death. In his opening statement, [Snody’s]

counsel described how [Decedent] became a new patient of Dr.

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Ettlinger’s in 2009. [Decedent] was suffering from anxiety and

was prescribed an antidepressant and anti-anxiety medication.

Four days later, [Decedent] saw Dr. Ettlinger for a burn on his leg

caused by a motorcycle pipe and was prescribed opioids for the

pain. [Snody] argued that over the following five years, Dr.

Ettlinger continued to over-prescribe opioids in combination with

benzodiazepines[,] which ultimately caused [Decedent’s] death in

2014.

It was Defendant[s’] position that [Decedent] suffered from

chronic pain after falling from a tree stand in 2002. According to

his daughter, as a result of the fall, he injured his knee and

shoulder and thereafter, suffered from chronic pain. According to

the defense, no one was absolutely certain of the cause of

[Decedent’s] death. There was no evidence that proved he died

from an opioid overdose. However, a piece of a pen with white

residue in it was discovered on [Decedent’s] person at the scene.

The residue was tested by the coroner’s office and it tested

positive for methamphetamine, not a drug that was prescribed by

Dr. Ettlinger. The defense theorized that [Decedent] was smoking

crystal meth and the likely scenario was that once the stimulant

effect of the methamphetamine wore off, he “crashed” and fell

asleep in his freezing cold trailer. When the paramedics reached

[Decedent], his core body temperature was 60 degrees[,] which

is not compatible with life.

Trial Court Opinion, 9/9/19, at 3-4.

On December 19, 2016, Snody filed a medical professional liability

wrongful death and survival action against Appellees, Dr. Ettlinger and his

employer, Pinnacle Health System, Pinnacle Health Medical Group, d/b/a

Pinnacle Health Family Care Millersburg (“Pinnacle”). Snody alleged, inter alia,

that Dr. Ettlinger: prescribed excessive and dangerous doses of opioids; failed

to properly monitor and document the medications prescribed; failed to

recognize the cumulative effects of opioids; prescribed medications that had

known interactions; failed to record appropriate histories of Decedent’s pain

and its progression; failed to refer Decedent to an appropriate specialist; failed

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to adequately evaluate or seek psychiatric evaluation for Decedent’s anxiety

and depression; and failed to recognize that the drugs prescribed could

potentially cause death. See Complaint, 12/19/16, at ¶ 33(a)-(j). Snody’s

complaint also included a claim for punitive damages.

Appellees filed preliminary objections in which they sought to strike as

impertinent paragraph 31 of Snody’s complaint, which alleged that the federal

government had investigated Dr. Ettlinger’s prescribing practices, as well as

Snody’s claim for punitive damages. The court sustained the preliminary

objections, without prejudice.

Following the close of pleadings and discovery and the disposition of

numerous motions in limine, a five-day jury trial commenced on January 14,

2019. On January 18, 2019, the jury found Dr. Ettlinger not negligent as to

all claims. Following briefing and oral argument, the trial court denied Snody’s

post-trial motions. Snody filed a timely notice of appeal,1 followed by a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). She raises the following claims for our review:

1. Did the trial court commit prejudicial error by permitting, over

[Snody’s] counsel’s objections with virtually every witness,

defense counsel’s reference to the deposition testimony of

Decedent’s daughter and her mother that defendant Ettlinger’s

____________________________________________

1 Snody purports to appeal from the July 1, 2019 order denying post-trial

motions. However, an appeal properly lies from the entry of judgment.

Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa.

Super. 1995). Here, the jury verdict was reduced to judgment on July 12,

2019, and Snody filed a timely notice of appeal on July 15, 2019. We have

amended the caption accordingly.

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prescription of opioids was necessary to treat Decedent’s

excruciating pain from his 2002 fall from a deer tree stand?

2. Did the trial court commit prejudicial error in denying [Snody’s]

motion in limine by permitting Jason Brajer, M.D., an

anesthesiologist, to testify as to the family practice standard of

care of defendant Ettlinger, a practitioner in family medicine; that

defendant Ettlinger did not violate the 11 allegations (a-j) of the

complaint; and to testify beyond the scope of his report(s)?

3. Did the trial court commit prejudicial error in denying [Snody’s]

motion in limine by precluding the impeachment of Dr. Brajer for

being sanctioned for the same opioid over[-]prescription practice

as defendant Ettlinger?

4. Did the trial court commit prejudicial error in denying [Snody’s]

motion in limine by precluding impeachment and admission

testimony that defendant Ettlinger had been investigated by the

[Food and Drug Administration], the circumstances of the

investigation, and Dr. Ettlinger paying a $45,000 fine?

5. Did the trial court commit prejudicial error in granting

Defendants’ motion in limine by precluding testimony as to the

opioid crisis, including reference to literature of the skyrocketing

increase in opioid deaths from 1997 to 2012?

6. Did the trial court commit prejudicial error in allowing an illegal

drug defense which was unsupported by the evidence?

7. Did the trial court commit prejudicial error in granting

Defendants’ motion in limine by precluding [Snody’s] toxicologist,

William Sawyer, from testifying as to the standard of care of a

physician in prescribing opioids?

8. Did the trial court commit prejudicial error in permitting, over

[Snody’s] objections, a statement in the hospital records that an

unidentified family member said that Decedent had a history of

snorting Xanax and other drugs?

9. Did the trial court commit prejudicial error in permitting

defendant Ettlinger and his experts to defend the case on the basis

that everyone at that time was prescribing opioids, as those

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prescribed by Ettlinger, and criticizing the FDA for the opioid

epidemic?[2]

10. Was the defense verdict contrary to the facts in the case and

law when it is undisputed that Decedent was taking no opioid

drugs when he commenced treatment with defendant Ettlinger,

was prescribed opioids for a motorcycle burn that would be

expected to heal in ten days, and continued a treatment regimen

of prescribing thousands of opioid and benzodiazepine pills, for

five and a half years?

11. Did the trial court commit prejudicial error in communicating

with the jury outside of the courtroom, in the deliberations room,

and communicating that the jury, at approximately 5:00 p.m. on

Friday, wanted to stay as long as it took to reach a verdict, and a

defense verdict was reached in less than an hour?

Brief of Appellant, at 8-10 (capitalization and punctuation adjusted).

Snody’s first several claims involve the trial court’s rulings on motions

in limine. Our standard of review for evidentiary rulings is a narrow one:

When we review a trial court’s ruling on admission of evidence,

we must acknowledge that decisions on admissibility are within

the sound discretion of the trial court and will not be overturned

absent an abuse of discretion or misapplication of law. In addition,

for a ruling on evidence to constitute reversible error, it must have

been harmful or prejudicial to the complaining party.

Lykes v. Yates, 77 A.3d 27, 32 (Pa. Super. 2013), quoting Reott v. Asia

Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010).

Snody first alleges that the trial court committed prejudicial error by

allowing defense counsel to elicit from Snody and her mother, Andrea Koch,

testimony regarding Decedent’s excruciating pain resulting from a 2002 fall

____________________________________________

2 Although this claim is included in Snody’s statement of questions involved,

it is not addressed in the argument portion of her brief. We, therefore,

consider the claim abandoned and will not address it. Harkins v. Calumet

Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992).

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from a tree stand. She further claims that the court allowed Koch and

unidentified others to testify as to the contents of Decedent’s medical records,

“including snorting Xanax and taking crystal meth.” Brief of Appellant, at 27.

By doing so, Snody alleges that the court permitted defense counsel to obtain

speculative medical opinion testimony from non-expert fact witnesses.

Appellees argue that Snody has “failed to include a single citation to

identify one example of these allegedly erroneous” rulings and urges us to find

this claim waived. Brief of Appellees, at 10. Moreover, Appellees assert, the

trial court “simply did [not] permit non-expert fact witnesses to provide

opinion testimony.” Id. at 11.

We agree with Appellees that Snody fails to identify any specific

testimony supporting her claim that the trial court allowed inappropriate

medical opinion testimony from either Snody or her mother. Rather, Snody

peppers her argument with parenthetical references to broad swaths of the

reproduced record, apparently expecting this Court to scour the portions of

the record referenced, discern the exchanges complained of, and develop an

argument on her behalf. However, it is the appellant’s responsibility to

precisely identify any purported errors. In re Child M., 681 A.2d 793, 799

(Pa. Super. 1996) (Superior Court will not scour record on appellant’s behalf

trying to find mistakes by trial court). It is not the duty of the Superior Court

to act as the appellant’s counsel, and we decline to do so here. See Andaloro

v. Armstrong World Industries, Inc., 799 A.2d 71, 87 (Pa. Super. 2002).

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Because Snody has failed to identify with any particularity the specific

testimony to which she objects, we deem this claim waived.

Snody’s next claim includes multiple sub-issues, all of which concern the

testimony of Jason Brajer, M.D., a defense witness and board-certified

physician in both anesthesiology and pain management. First, Snody asserts

that the trial court erred by permitting Dr. Brajer to offer opinion testimony

as to the family practice standard of care because he is not a family care

practitioner. Snody argues that, under the Medical Care Availability and

Reduction of Error Act (“MCARE Act”),3 a physician may only provide expert

testimony regarding a standard of care where he “practice[s] in the same

subspecialty as the defendant physician or in a subspecialty which has a

substantially similar standard of care for the specific care at issue.” Brief of

Appellant, at 29-30, quoting Wexler v. Hecht, 847 A.2d 95 (Pa. Super.

2004), and citing 40 P.S. § 1303.512. Snody argues that, because Dr.

Ettlinger is a family practitioner and Dr. Brajer is not, Dr. Brajer was not

qualified under the MCARE Act to render an opinion as to the standard of care

in this case. This claim ignores the plain language of the MCARE Act and is

utterly devoid of merit.

With respect to expert medical opinion testimony, the MCARE Act

provides, in relevant part, as follows:

(a) General rule.—No person shall be competent to offer an expert

medical opinion in a medical professional liability action against a

____________________________________________

3 See 40 P.S. §§ 1303.101-1303.910.

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physician unless that person possesses sufficient education,

training, knowledge and experience to provide credible,

competent testimony and fulfills the additional qualifications set

forth in this section as applicable.

...

(c) Standard of care.—In addition to the requirements set forth

in subsections (a) and (b) [relating to licensure and active practice

or teaching requirements], an expert testifying as to a physician’s

standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of

care for the specific care at issue as of the time of the

alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant

physician or in a subspecialty which has a substantially

similar standard of care for the specific care at issue.

...

(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 years.

40 P.S. § 1303.512 (emphasis added).

Our Supreme Court has explained:

the ‘relatedness’ of one field of medicine to another, under

subsection 512(e), can only be assessed with regard to the

specific care at issue. Two fields of medicine may be ‘related’

with respect to certain specific issues of care, but unrelated with

respect to other specific issues of care. Determining whether one

field of medicine is ‘related’ to another with respect to a specific

issue of care is likely to require a supporting evidentiary record

and questioning of the proffered expert during voir dire.

Vicari v. Spiegel, 989 A.2d 1277, 1284 (Pa. 2009).

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Here, the “specific care at issue” was Dr. Ettlinger’s prescription and

management of the Decedent’s pain medications.4 During voir dire, Dr. Brajer

testified that he was board-certified in the subspecialty of pain management

and has practiced office-based pain management for 10 years. N.T. Trial

1/17/19, at 814. He testified that his practice included treatment of pain

through various injections, as well as the prescription of narcotics and other

things. See id. In addition, he stated that his practice includes the treatment

of patients suffering from depression and anxiety. See id. Doctor Brajer

testified that there was a “dramatic overlap in how [he] would prescribe

narcotics for patients in chronic pain and how a family physician does.” Id.

at 820.

____________________________________________

4 During voir dire on Dr. Brajer’s qualifications, the following exchange

occurred between the trial court and plaintiff’s counsel:

THE COURT: [W]e heard testimony before about the broad scope

of a family practitioner’s practice. I believe it was from womb to

tomb, cradle to grave, however you describe it. We’re not talking

about Dr. Ettlinger delivering a baby. We’re talking about pain

management and his prescription of medications to manage pain.

Is that not the case?

ATTORNEY ANGINO: What we are testifying—

THE COURT: Is that not the case?

ATTORNEY ANGINO: Yes.

N.T. Trial, 1/17/19, at 822.

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Based on the foregoing, it is abundantly clear that Dr. Brajer was well-

qualified to provide an opinion as to the standard of care related to the

prescription and management of pain-management medicine pursuant to

section 512 of the MCARE Act. Snody is entitled to no relief.

Snody also claims that the trial court erred in allowing Dr. Brajer to

testify outside the scope of his expert report, in violation of Pa.R.C.P. 4003.5.5

Specifically, Snody asserts that Dr. Brajer’s report provided no basis for his

conclusion that Dr. Ettlinger did not deviate from the standard of care, yet he

testified as to “everything but what was in his report, including standard of

care.” Brief of Appellant, at 33. Likewise, Snody asserts that Dr. Brajer’s

report provided no basis for his conclusion that Dr. Ettlinger was not

responsible for Decedent’s death, yet he was permitted to provide causation

testimony at trial. See id. at 34. Finally, Snody asserts that Dr. Brajer was

____________________________________________

5 Although Snody does not specify in her brief which portion of Rule 4003.5

she believes Dr. Brajer’s testimony violated, it appears she is referring to the

following subsection:

(c) To the extent that the facts known or opinions held by an

expert have been developed in discovery proceedings under

subdivision (a)(1) or (2) of this rule, the direct testimony of the

expert at the trial may not be inconsistent with or go beyond the

fair scope of his or her testimony in the discovery proceedings as

set forth in the deposition, answer to an interrogatory, separate

report, or supplement thereto. However, the expert shall not be

prevented from testifying as to facts or opinions on matters on

which the expert has not been interrogated in the discovery

proceedings.

Pa.R.C.P. No. 4003.5(c).

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permitted to opine at trial that the government, rather than physicians, was

responsible for the opioid epidemic, despite the absence of this “novel theory”

from his report. Id. Appellees assert that these claims are “baseless,”

undeveloped, waived, and frivolous. See Brief of Appellees, at 16-18.

Once again, we note that Snody’s arguments regarding Dr. Brajer’s

testimony are woefully underdeveloped and unsupported by specific

references to the record and relevant law. For those reasons, we would be

justified in finding these claims waived. Although we decline to do so, we

agree with the Appellees that Snody’s claims regarding the scope of Dr.

Brejar’s testimony are completely baseless. During Dr. Brajer’s direct

examination, Snody’s counsel objected only twice on the basis of scope. In

the first instance, counsel objected that Dr. Brajer’s testimony critical of

Snody’s expert’s opinion was beyond the scope of his report. When Appellees’

counsel referred the court to the relevant section of Dr. Brajer’s report,

counsel withdrew his objection. See N.T. Trial, 1/17/19, at 827. In the

second instance, counsel objected that Dr. Brajer’s testimony regarding

Decedent’s cause of death was beyond the scope of his written report.

Appellees’ counsel thereafter rephrased his question and Snody’s counsel did

not object. See id. at 849. Similarly, Snody’s complaint regarding Dr.

Brajer’s criticism of the federal government for its role in creating the opioid

crisis is utterly frivolous. Indeed, Dr. Brajer’s opinion in that regard was

elicited by Snody’s own counsel on cross-examination. See id. at 873-76.

Snody’s counsel neither objected to Dr. Brajer’s testimony nor requested that

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it be stricken. Because there is no basis in the record to support Snody’s

claims regarding Dr. Brajer’s testimony, we find them devoid of merit.

Snody next alleges that the trial court erred in denying her motion in

limine seeking to admit evidence that Dr. Brajer had previously been subject

to disciplinary action in the state of Delaware. However, the record is clear

that Snody’s counsel agreed, prior to trial, to withdraw his request to admit

that information:

THE COURT: And then you also within the motion have sought to

include reference to Dr. Brajer’s . . . disciplinary matter.

[DEFENSE COUNSEL]: Yes, Your Honor, there was a disciplinary—

it’s our understanding that there was a disciplinary action that was

instituted that has been stayed. And it’s that simple. He’s going

to use the fact that there was an investigation to imply a lack of

trustworthiness. There’s no outgoing—I mean, if we permit this

evidence and in three weeks they come back and drop all the

charges, then the jury has just heard highly inflammatory

information that was taken out of context. Again—

[PLAINTIFF’S COUNSEL]: I will withdraw that defense on that

motion.

N.T. Pretrial Motions Hearing, 12/20/18, at 47. Accordingly, this claim is

patently meritless and Snody is entitled to no relief.

Next, Snody asserts that the trial court erred by precluding reference at

trial to the fact that Dr. Ettlinger had been investigated by the federal

government for his prescribing practices and agreed to pay a $45,000.00 fine.

Specifically, Appellees filed a motion in limine to bar admission of evidence

related to the federal investigation into Dr. Ettlinger as irrelevant and highly

prejudicial. See Motion in limine, 10/9/18, at ¶ 4. Snody argued she was

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entitled to introduce that evidence to impeach Dr. Ettlinger’s 2017 deposition

testimony and as an admission of liability. The trial court concluded that,

because the fine paid by Dr. Ettlinger was part of a “no admission” settlement

agreement, it did not constitute an admission and was, therefore, irrelevant

for that purpose. The court further found that the probative value of the fact

that the investigation was conducted was “far outweighed” by the potential

prejudicial effect the evidence would have. Trial Court Opinion, 9/9/19, at 12.

At the outset, we note that, once again, Snody fails to specify in her

brief the specific deposition testimony she believes to be admissible as

impeachment material. However, based on the contents of Appellees’ motion

in limine and the deposition excerpt cited in Appellees’ brief, we glean that

Snody’s claim is based on the following testimony that transpired during

counsel’s questioning of Dr. Ettlinger regarding his termination from

employment with Geisinger Family Practice:

[PLAINTIFF’S COUNSEL]: Are you aware that you are under any

investigation by the Federal Bureau in terms of your dispensing

medicine?

A: I found that out [after my termination].

Q: When did you find that out?

A: Within about a month or two afterwards.

Q: So what month or two are we talking about and what year?

A: In May of—after I tried to investigate what led to my

termination, I found that out. I’m sorry, that was in May of 2015.

...

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Q: You have been under investigation or know you have been

under investigation since 2015. And you learned that your

termination may have been involved with that investigation?

A: That I don’t know. They never said to me what the reason for

my termination was. I am only surmising that it had to do with

[an] incident that I had with someone who was in our office,

because it happened within 48 hours.

...

Q: As of this point, you have not been charged with anything, is

that right?

A: I have been instructed that I have been cleared of both

criminal and civil charges. That is my most recent

knowledge.

Q: That is good for you.

A: Thank you.

Q: You have been cleared of criminal and civil allegations. Is that

what you are saying?

A: Right.

Deposition of Dr. Ettlinger, 12/15/17, at 8-10 (emphasis added).

Although the document memorializing Dr. Ettlinger’s agreement with

the federal government is not included in the certified record,6 it is apparent

that Dr. Ettlinger did not admit liability and that no charges were ultimately

brought against him. See N.T. Motion in limine Hearing, 12/20/18, at 21

(“[DEFENSE COUNSEL]: We obtained a copy of the settlement agreement.

____________________________________________

6 An appellant has the duty to ensure that all documents essential to his case

are included in the certified record. As we have previously stated, “[i]t is the

obligation of the appellant to make sure that the record forwarded to an

appellate court contains those documents necessary to allow a complete and

judicious assessment of the issues raised on appeal.” Commonwealth v.

Walker, 878 A.2d 887, 888 (Pa. Super. 2005). If a document is not contained

in the certified record then this Court cannot take it into account. Id.

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Subparagraph D of the recital says, quote, this settlement agreement is

neither an admission of liability by Dr. Ettlinger, nor a concession by the United

States that . . . its claims are not well-founded.”). Accordingly, Dr. Ettlinger’s

statement at his deposition—that he had been instructed that he had been

cleared of criminal and civil charge—is not inconsistent with the terms of the

agreement he ultimately reached with the federal government. Moreover, by

the terms of the agreement itself, Dr. Ettlinger’s payment of a $45,000.00

fine does not qualify as an admission of liability. See id. Accordingly, we can

discern no error of law or abuse of discretion on the part of the trial court in

precluding the evidence in question.

Snody next asserts that the trial court erred in granting Appellees’

pretrial motion seeking to preclude Snody from referencing the current opioid

epidemic in the United States. Snody alleges that such evidence was relevant

to establish that Dr. Ettlinger breached the standard of care, as he should

have been aware of the epidemic at the time he was prescribing opioid

medications to the Decedent. Upon review of the record, we agree with the

trial court that counsel’s own disregard of the trial court’s pretrial order

renders this issue moot.

Snody’s counsel made his first reference to the opioid crisis less than

one page into his opening statement. Specifically, counsel argued as follows:

ATTORNEY ANGINO: [] My proof will be that starting in 1997 what

happened is people started dying from opioids, generally in

combination with what they call benzos. They put those two

together and it kills people. So the proof in this case will be people

started dying.

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Records are kept, 1997 through 2012. More and more people

died, so that pretty soon there are more people dying from opioids

than there are from motor vehicle accidents.

N.T. Trial, 1/14/19, at 67.

Subsequently, during his cross-examination of Dr. Brajer, counsel again

made reference to the opioid epidemic during the following exchange:

Q: So you understand that starting in 1997 and for the decade

that would follow up until this 2009 period, the number of opioids-

related deaths skyrocketed, were you aware?

A: From when?

Q: 1997 to 2007, that decade, do you know that the opioid deaths

skyrocketed?

A: They skyrocket even more the following decade.

Q: That’s what I’m saying.

A: Right.

Q: And—

A: That’s how it works.

Q: And eventually people are dying from opioid deaths higher

than automobile accidents. Do you understand that?

A: Oh, yes. We have a horrible national epidemic of opioid abuse

and deaths. Yes, awful.

N.T. Trial, 1/17/19, at 872-73.

As these excerpts make it abundantly clear, Snody’s counsel violated

the trial court’s order precluding mention of the opioid crisis and, on multiple

occasions, brought it to the jury’s attention. Accordingly, Snody cannot now

be heard to complain that the trial court erred in its pretrial ruling precluding

her from mentioning the opioid epidemic.

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Snody next complains that the trial court erred in permitting Appellees’

counsel “to openly discuss methamphetamine use [by the Decedent] as a

defense in their opening, closing, and questioning of the witnesses.” Brief of

Appellant, at 40. This claim is waived.

In her argument, Snody refers vaguely to “the opinions of Dr. Boyer and

Dr. Brajer regarding causation” and claims that these opinions “lacked a

factual basis” and were, somehow, a violation of Frye v. United States, 293

F. 1013, 1014 (D.C. Cir. 1923). However, Snody neither directs our attention

to the specific opinion testimony about which she complains, nor explains how

such testimony constituted “novel scientific evidence” under Frye. Because

Snody fails to develop her argument in a way that permits meaningful

appellate review, we deem this issue waived. Wirth v. Commonwealth, 95

A.3d 822, 837 (Pa. 2014) (where appellate brief fails to develop issue in any

meaningful fashion capable of review, claim is waived).7

Snody next alleges that the trial court erred in permitting Appellees to

introduce inadmissible hearsay evidence that an unidentified family member

“stated that [Decedent] had a history of snorting his Xanax.” Brief of

Appellant, at 43. Once again, Snody fails to specifically identify the

____________________________________________

7 Moreover, any error on the part of the trial court in admitting this evidence

was necessarily harmless. Snody’s argument goes to causation. Here, the

jury found Appellees not negligent; accordingly, the issue of causation was

never reached. As such, Snody can demonstrate no prejudice. See Boyle v.

Indep. Lift Truck, Inc., 6 A.3d 492, 496 (Pa. 2010) (allegations of error are

harmless where jury not required to deliberate over issue out of which alleged

error arises).

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objectionable evidence or testimony, instead opting only to provide

parenthetical cites to two pages in the reproduced record. We again remind

Snody that it is not the obligation of this Court to scour the record in an

attempt to suss out her claim. Nevertheless, our review of the record indicates

that Snody’s complaint apparently relates to the following testimony elicited

by defense counsel:

Q: Would you agree that there is strong evidence in this case to

suggest that [Decedent] died from hypothermia?

[DR. KATHERINE MARGO8]: We know he was hypothermic. We

don’t know that he died of that. . . .

Q: [Reading from medical records] Said: Family spoke with

Paramedic Cotner in the ER and they report that they hadn’t

spoken to the patient since Wednesday and that he was a known

drug—has a known drug history of snorting Xanax and multiple

other drugs.

Did I read that correctly?

A: That’s what it says.

N.T. Trial, 1/15/19, at 393-94.

Q: And if it [sic] we look at the top of the page, we see a 15,

family members reported that [Decedent] has a history of abusing

drugs, including snorting alprazolam and multiple other drugs?

Tell me where you got that information.

____________________________________________

8Katherine Margo, M.D., testified as an expert in family medicine on behalf

of Snody.

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[DR. EDWARD BOYER9]: That information is from the medical

record.

N.T. Trial, 1/18/19, at 1002.

It is well-settled law that “[i]n order to preserve an issue for review, a

party must make a timely and specific objection.” Commonwealth v. Duffy,

832 A.2d 1132, 1136 (Pa. Super. 2003); see also 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.”). Here, Snody does not point to any such timely objection and

our review of the record does not reveal one. Accordingly, this issue is

waived.10

Snody next complains that the trial court erred by precluding her

toxicologist, William Sawyer, Ph.D, from testifying as to the standard of care

____________________________________________

9Doctor Boyer testified on behalf of Appellees as an expert in emergency

medicine and toxicology.

10 Even if not waived, this claim would be meritless. The statements regarding

Decedent’s history of snorting Xanax were contained in the “trip sheet” of a

flight nurse who provided treatment to Decedent in an attempt to save his

life. Pennsylvania Rule of Evidence 803(4) provides that statements made for

the purposes of medical diagnosis or treatment, regardless of whether the

declarant is available, is admissible as substantive evidence where: (1) the

statement was made for the purpose of receiving medical treatment; and (2)

the statement was necessary and proper for diagnosis and treatment.

Commonwealth v. Belknap, 105 A.3d 7, 11 (Pa. Super. 2014) (citations

omitted). Statements made by family members to a flight nurse endeavoring

to save their loved-one’s life falls squarely within this exception to the hearsay

rule.

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of a family practice physician prescribing opioids. The trial court properly

disposed of this claim as follows:

The [c]ourt did not err in precluding [Snody’s] Ph[.]D toxicologist

from testifying as to the standard of care of a family practice

physician prescribing opioids and other medications, as the

MCARE Act and the Pennsylvania Supreme Court specifically

mandate[] that the possession of an unrestricted license to

practice medicine is a requirement, which cannot be waived, and

is necessary to offer standard of care opinions. See 40 P.S. [§]

1303.512(b); Wexler v. Hecht, 928 A.2d 973, [975 n.3] (Pa.

2007).

Trial Court Opinion, 9/9/19, at 14.

Indeed, Snody’s counsel acknowledged that Dr. Sawyer was not present

to testify as to standard of care:

[ATTORNEY ANGINO]: Doctor, you have a Ph.D; is that right?

A: Yes.

Q: Not an M.D., right?

A: Correct.

Q: Do most toxicologists have Ph.Ds rather than M.D.s?

A: Yes.

Q: So when you were asked on cross-examination whether you

were a doctor, you’re not here to testify as to whether Dr.

Ettlinger was negligent. That’s not your function; is that

right?

A: No. I am not here to testify on standard of care. That’s

not my specialty.

N.T. Trial, 1/17/19, at 692 (emphasis added).

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Accordingly, not only was Dr. Sawyer properly precluded from providing

standard of care testimony, he was not presented for that purpose and the

claim is waived.

Next, Snody asserts that the verdict was against the weight of the

evidence. This claim is also waived.

Snody’s argument on this issue consists of one page in her appellate

brief. The first paragraph sets forth the standard for setting aside a jury

verdict. The second paragraph baldy argues that, because Decedent did not

take opioid drugs prior to treating with Dr. Ettlinger, and because Dr. Ettlinger

prescribed opioid and benzodiazepine drugs to Decedent for five and one-half

years, “Dr. Ettlinger is clearly negligent” for failing to follow unspecified

“guidelines as outlined above in the Statement of the Case[].” Brief of

Appellant, at 50. This pronouncement is followed by an extensive string of

citations to broad swaths of the reproduced record. Once again, Snody has

failed to provide a well-developed argument with specific citations to the

record, supported by reference to pertinent law. Accordingly, we agree with

Appellees that Snody’s “undeveloped and editorialized challenge to the jury’s

verdict is nothing more than a disagreement with the jury’s resolution of the

factual issues” and, as such, garners her no relief. Brief of Appellees, at 31.

Snody’s final issue on appeal concerns the trial court’s decision to send

the jury out to deliberate at 5:00 p.m. on the Friday before a three-day

weekend. Once again, Snody has failed to provide any citation pointing this

Court to that portion of the record giving rise to her complaint. Appellees

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kindly provide us with what Snody does not, and note that Snody’s counsel

failed to raise any objection whatsoever to the court’s discharging the jury to

deliberate. Indeed, earlier in that day’s proceedings, the following exchange

transpired between the court and counsel:

THE COURT: Okay. And then we will close, charge; the case will

go to the jury today.

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: We will keep them as long as it takes. So with

than in mind, we’ll see you in a couple minutes.

[SNODY’S COUNSEL]: We had a case one time in Perry County

that the jury came in at 2:00 a.m. So we don’t do much of that

anymore, but—

THE COURT: No.

[SNODY’S COUNSEL]: I’m just suggesting there is some

precedent for staying for awhile.

THE COURT: Well, their option would be to come back Tuesday.

[SNODY’S COUNSEL]: We don’t want that option.

N.T. Trial, 1/18/19, at 919.

As this excerpt makes clear, counsel not only failed to object when the

jury was discharged, he explicitly expressed a preference for requiring the jury

to “stay[] for awhile” and deliberate that evening. Accordingly, Snody’s final

claim is patently meritless.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/21/2020

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