Tyler, C. v. Hoover, R.

J-A05037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.

65.37

CHARMAINE TYLER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

RUTH HOOVER : No. 656 EDA 2022

Appeal from the Judgment Entered February 17, 2022

In the Court of Common Pleas of Philadelphia County

Civil Division at No. 190606965

CHARMAINE TYLER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RUTH HOOVER :

:

Appellant : No. 663 EDA 2022

Appeal from the Judgment Entered February 17, 2022

In the Court of Common Pleas of Philadelphia County

Civil Division at No. 190606965

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 24, 2023

This appeal and cross-appeal arise from a judgment in favor of

Charmaine Tyler (Tyler), entered after a jury trial on her successful personal

injury action against Ruth Hoover (Hoover). Hoover appeals the judgment

entered against her. Tyler, in her cross-appeal, challenges the court’s denial

of her post-trial motion for delay damages. Upon careful consideration, we

J-A05037-23

affirm the judgment against Hoover, reverse the denial of Tyler’s post-trial

motion, and remand with instructions.

The trial court detailed the case history, beginning with the procedural

posture, as follows:

On June 24, 2019, [Tyler] commenced her civil action by

filing a complaint in the Court of Common Pleas - Philadelphia

County. [Tyler] filed an affidavit of service on July 16, 2019. On

August 20, 2019, [Hoover] filed her answer with new matter to

[Tyler’s] complaint. A reply to [Hoover’s] new matter was filed on

September 3, 2019.

The first discovery motion filed by [Hoover] was a motion to

compel answers and production of documents dated September

11, 2019[,] relating to interrogatories sent to [Tyler] on July 24,

2019. On September 23, 2019, upon consideration of the motion,

[the trial court] ordered … that [Tyler] provide full, complete, and

verified answers to interrogatories and requests for production of

documents within twenty (20) days or risk court sanctions.

[Hoover] filed a motion for sanctions on November 14,

2019. On December 4, 2019, certification prerequisite to service

of subpoenas was filed by [Hoover]. [Hoover] filed a motion to

compel deposition on December 9, 2019. On December 23, 2019,

the [trial court] granted [Hoover’s] motion to compel deposition

and ordered [] Tyler to appear at her deposition or risk sanctions

by the court.

[Hoover] filed a motion to compel subpoena compliance on

January 29, 2020. On February 11, 2020, the [trial court] granted

[Hoover’s] Motion. [Hoover] filed three discovery motions on

March 2, 2020. [Hoover] first filed a motion to compel answers

to interrogatories. [Hoover] further filed a motion to compel

answers and production of documents[,] and a motion for

sanctions.

On the same day, March 2, 2020, [Hover] filed a motion for

extraordinary relief. Subsequent to [Hoover’s] motion, [Hoover]

withdrew the motion to compel interrogatories filed that day.

[Hoover’s] motion for extraordinary relief was granted … that day,

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and a revised case management order was issued, extending

deadlines by sixty (60) days.

[Hoover] filed further motions for sanctions on May 15,

2020[,] and June 22, 2020. On July 8, 2020, [Hoover] filed a

motion for extraordinary relief. The motion was granted … on July

23, 2020, once again extending case management deadlines for

another sixty (60) days.

On September 28, 2020, [Hoover] filed a motion for

sanctions against third party medical imaging service Advanced

Diagnostics.[1] The motion was granted on October 14, 2020. On

November 19, 2020, a second motion for sanctions against

[Advanced Diagnostics] was filed by [Hoover]. This motion was

granted on December 15, 2020[; the trial court ordered Advanced

Diagnostics to “provide any and all records, including films of

diagnostic testing from July 2 and July 9, 2018, pertaining to

Tyler….” Order, 12/15/20.] On January 25, 2021, [Hoover] filed

a motion for sanctions concerning Advanced Diagnostics’ failure

to comply with [a] subpoena. The [motion] was denied … on

February 8, 2021.

On October 14, 2021, [Hoover] filed two motions in limine

seeking to preclude both evidence of Advanced Diagnostics’

cervical MRI dated July 2, 2018[,] and the testimony of [Tyler’s

____________________________________________

1 Advanced Diagnostics performed scans of Tyler’s spine both prior to and

after the May 24, 2018, car accident, via magnetic resonance imaging (MRI).

See Motion In Limine, 10/14/21, Ex. C. Hoover requested discovery from

Advanced Diagnostics. According to Hoover, Advanced Diagnostics “did

produce reports, and MRI films, for multiple evaluations of [] Tyler, but did

not produce” MRI films dated July 2, 2018, and July 9, 2018, which Hoover

repeatedly requested. Id. ¶ 3 (citing Ex. C); see also id. ¶ 7 (stating

Advanced Diagnostics had responded to Hoover’s discovery requests for the

MRI films via correspondence which claimed “Advanced Diagnostics

experienced a system malfunction” in 2018 which “corrupted” certain

“irretrievable” MRI films).

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medical expert,] Gerald Dworkin, [D.O. (Dr. Dworkin).2, 3]

[Hoover] filed a subsequent motion in limine to preclude the

testimony of representatives of [medical provider] BalaCare

____________________________________________

2 Dr. Dworkin issued an expert report dated December 2, 2019, after he

treated Tyler and assessed her medical history. Dr. Dworkin detailed his

treatment and the results of medical imaging scans that were performed on

Tyler after the May 24, 2018 car accident. See Dr. Dworkin Report, 12/2/19,

at 1-2 (attached to Hoover’s October 14, 2021, motion in limine with respect

to Dr. Dworkin as Ex. D). Dr. Dworkin opined:

Tyler suffers from serious and permanent injury to bodily function

vis-à-vis cervical and lumbar spine segments including but not

limited to soft tissue, muscle ligament, disc, and nerve roots. These

impairments are serious, permanent, and secondary [in] their

entirety to the 05/24/2018 trauma.

Id. at 3; see also id. (stating the above conditions are “associated with

significant physical capacity limitation disability….”). Dr. Dworkin concluded,

“[Tyler] will, in my opinion, [] within [a] reasonable degree of medical

certainty[,] require ongoing medical care as a result of these injuries and their

progression over the next three to five years at a minimum.” Id. at 4.

3In Hoover’s motion in limine with respect to Dr. Dworkin, she claimed his

expert testimony was inadmissible because:

Dr. Dworkin [] admitted that he relied entirely upon his

interpretation of reports of diagnostic MRI films dated July 2, 2018,

and July 9, 201[8], which have never been produced and which

apparently do not exist. …

During discovery, the records of Advanced Diagnostics were

subpoenaed…. There are no reports, much less films, produced by

Advanced Diagnostics dated July 2, 2018, or July 9, 2018.

***

Because the opinions expressed by Dr. Dworkin … are

dependent upon his interpretation of the non-existing MRI films, all

such testimony should be precluded from evidence.

Supplemental Memorandum of Law, 11/12/21, at 1-2 (citation to exhibit

omitted).

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Solutions on October 15, 2021[. Hoover claimed such testimony

would be inadmissible as being “wholly dependent upon

admissibility of evidence produced through a report of [Dr.]

Dworkin,” which itself was inadmissible for reasons stated above.

Motion In Limine, 10/15/21, ¶ 3]. On November 1, 2021, [Tyler]

filed answers in opposition [to Hoover’s] motions in limine. The

[trial] court denied these motions.

The trial began with an eight-member jury on November 15,

2021. [Dr. Dworkin testified, over Hoover’s objection, consistent

with his expert report.] The jury returned a 7/8 verdict in favor

of [Tyler] on November 17, 2021. On November 23, 2021[, Tyler]

filed a post-trial motion seeking delay damages. [The same day,

Hoover filed a post-trial motion seeking a new trial, [judgment

notwithstanding the verdict (Judgment N.O.V.), or a remittitur.]

[Tyler’s] post-trial motion for delay damages pursuant to

Pa.R.C.P. 238 was denied by [the trial] court on February 17,

2022. [The court denied Hoover’s post-trial motion seeking a new

trial/Judgment N.O.V. by a separate order entered the same date,

and entered judgment in favor of Tyler in the amount of the jury’s

award, $188,632.]

FACTS

… On May 2[4], 2018, [Tyler] was the operator of a motor

vehicle on the University Avenue I-76 ramp. N.T., 11/15/21, at

94, 132; N.T., 11/17/21, at 36. On this [Thursday] afternoon,

traffic was particularly congested. N.T., 11/15/21, at 94-95.

[Tyler’s] SUV was thereafter rear-ended by [Hoover’s] car. Id.

The parties exchanged information, took photographs, and left the

scene. Id. at 95-96. No police report was filed. Id.

Prior to the motor vehicle accident, [Tyler] participated in

physical therapy continuously from January of 2018 for various

left side, back, and neck pain. Id. at 104. [Tyler] would continue

physical therapy after the accident[, according to Dr. Dworkin,]

“[b]ecause of the increasing nature of her pain.” [Dr.] Dworkin

Depo., [11/8/21], at 31. Physical therapy continued for several

months. Id. [Tyler] also sought out further treatments, including

an MRI of the neck region on July 2, 2018[,] and an MRI of the

lower back on July 9, 2018. Id. at 41. [Tyler] had also undergone

EMG [medical imaging] testing on September 13, 2018[,] and

September 24, 2018. [Dr.] Dworkin Expert Report, [12/2/19,] at

2. A physical examination of [Tyler’s] cervical and lumbar regions

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was performed by … Dr. Dworkin on March 9, 2019. Id. On

December []9, 2019, BalaCare Solutions produced [an expert]

report[, and a subsequent updated expert report,] representing

future medical costs [Tyler] would [incur] as a result of the …

motor vehicle accident. BalaCare Solutions Expert Report[s,

12/9/19 & 5/4/21 (respectively) (attached to Hoover’s October

15, 2020, Motion In Limine as Exs. B & C).]

Trial Court Opinion, 8/19/22, at 1-4 (footnotes added; footnote citations

moved to body and modified; emphasis omitted).

Both parties timely appealed.4 The parties and the trial court have

complied with Pa.R.A.P. 1925.

Hoover presents nine issues for review:

1. Whether Judgment N.O.V. is required because [Hoover] is

clearly entitled to relief where the jury found as a fact that

[Tyler] did not sustain a serious injury, i.e. a serious

impairment of bodily function?

2. Whether Judgment N.O.V. is warranted because the [trial

c]ourt erred in admitting expert testimony about future medical

treatment and costs predicated on the admission of testimony

relying on authenticated reports of non-existent MRI films?

3. Whether, in the alternative, this Court[] should order a new

trial at which [Tyler’s] entitlement to future economic losses

will be litigated?

4. Whether a new trial is required because the trial court

erroneously admitted expert medical testimony based on

unauthenticated MRI reports of non-produced and non-existing

MRI films?

5. Whether a new trial is required because the trial court

erroneously allowed [Tyler’s] medical expert to offer testimony

beyond the scope of his report?

____________________________________________

4 This Court consolidated the appeals on April 26, 2022.

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6. Whether a new trial is required because the trial court

erroneously allowed testimony from [Tyler’s] medical cost

expert relying on the inadmissible testimony of [Tyler’s]

medical expert based upon an unauthenticated report of MRI

films which were never produced and which do not exist?

7. Whether a new trial is required to consider remittitur of the

future damages awarded?

8. Whether Judgment N.O.V., or a new trial, is required because

the trial court in considering motions for post-trial relief did not

view the evidence in the light most favorable to the verdict

winner?

9. Whether Judgment N.O.V., or a new trial, is required because

the trial court in considering motions for post-trial relief, failed

to address the most critical issue in the case, i.e. the

unauthenticated reports of non-produced and non-existing MRI

films?

Hoover’s Appellant Brief at 9.

Tyler, in her cross-appeal, presents a single issue:

Whether the trial court abused its discretion and otherwise

committed an error of law when it improperly denied [Tyler’s]

post-trial motion for delay damages by way of order dated

February 11, 2022 and supporting opinion dated August 19, 2022?

Tyler’s Cross-Appellant Brief at 7 (capitalization modified).

Hoover’s Appeal at 663 EDA 2022

Hoover includes nine issues in her statement of questions, but argues

only five issues in contravention of our Rules of Appellate Procedure. See

Hoover’s Appellant Brief at 9, 28-48; see also Pa.R.A.P. 2119(a) (“The

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

argued[.]”). We address Hoover’s five issues because the discrepancy does

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not impede review. See Donahue v. Fed. Express Corp., 753 A.2d 238,

241 n.3 (Pa. Super. 2000).

(1) [Whether] Judgment N.O.V. or a new trial is warranted due to

the admission of prejudicial and inadmissible expert testimony

relying on unauthenticated reports of non-existing MRI films.

Hoover argues the trial court

wrongly allowed testimony [by Dr. Dworkin] … based on

unauthenticated reports of MRI films of [Tyler] dated July 2, 2018

and July 9, 2018[,] which were never produced in discovery by

[Tyler] and [were] not produced pursuant to a subpoena directed

to the radiology group Advanced Diagnostics, despite three court

orders, and which were never properly authenticated. Amazingly,

the trial court makes no mention of [Hoover’s] repeated objections

to evidence based on the unauthenticated report of the non-

produced MRI films and does not mention the word

“unauthenticated” and makes no reference to Rule 901 of the

Pennsylvania Rules of Evidence or other rules which would prohibit

the use of such evidence.

Hoover’s Appellant Brief at 28. Hoover further maintains:

The error in allowing the testimony of Dr. Dworkin was

compounded when medical costs projectionist Alisa Dayanim

[(Dayanim)] was permitted to offer expert testimony concerning

the costs of future medical care. By relying solely on Dr. Dworkin’s

report, based upon the unauthenticated report of MRI studies,

[Dayanim] assigned cost values for projected medical care and

arrived at a total of $358,490 as the total lifetime cost of care for

injuries to [Tyler’s] cervical spine, with $231,901 attributable to

one-time cost for an anterior cervical fusion.

Id. at 30 (record citations omitted). Hoover complains this evidence “was

clearly prejudicial and misled the jury, and it should have been excluded under

Rule 403 and Rule 901 of the Pennsylvania Rules of Evidence.” Id. at 32.

We begin with our standards of review. We have explained:

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Our standard[s] of review when considering the motions for a

directed verdict and [Judgment N.O.V.] are identical. We will

reverse a trial court’s grant or denial of [Judgment N.O.V.] only

when we find an abuse of discretion or an error of law that

controlled the outcome of the case. Further, the standard of

review for an appellate court is the same as that for a trial court.

There are two bases upon which [Judgment N.O.V.] can be

entered; one, the movant is entitled to judgment as a matter of

law and/or two, the evidence is such that no two reasonable minds

could disagree that the outcome should have been rendered in

favor of the movant. With the first, the court reviews the record

and concludes that, even with all factual inferences decided

adverse to the movant, the law nonetheless requires a verdict in

[its] favor. Whereas with the second, the court reviews the

evidentiary record and concludes that the evidence was such that

a verdict for the movant was beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)

(citations omitted).

Our standard of review regarding a trial court’s denial of a motion for a

new trial is limited: “The power to grant a new trial lies inherently with the

trial court and we will not reverse its decision absent a clear abuse of discretion

or an error of law which controls the outcome of the case.” Maya v. Johnson

& Johnson & McNeil-PPC, Inc. (In re McNeill-PPC), 97 A.3d 1203, 1224

(Pa. Super. 2014) (citation omitted). We employ a two-part analysis: First,

we determine if an error occurred. If so, we ascertain “whether the error

resulted in prejudice necessitating a new trial.” Czimmer v. Janssen

Pharms., Inc., 122 A.3d 1043, 1051 (Pa. Super. 2015) (citation

omitted). Second, we ascertain whether the error affected the verdict.

Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011). The

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“[c]onsideration of all new trial claims is grounded firmly in the harmless error

doctrine[.]” Id. (citation omitted).

We next examine whether Hoover preserved this issue. See, e.g.,

Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (explaining

“[t]he fact [a]ppellants filed a timely [court-ordered] Pa.R.A.P. 1925(b)

statement does not automatically equate with issue preservation.”).

Pa.R.A.P. 1925(b) provides that a judge entering an order giving

rise to a notice of appeal “may enter an order directing the

appellant to file of record in the trial court and serve on the judge

a concise statement of the errors complained of on appeal [ ].”

Rule 1925 also states that “[i]ssues not included in the

Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.

1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719

A.2d 306 (1998), our Supreme Court held that “from this date

forward, in order to preserve their claims for appellate review,

[a]ppellants must comply whenever the trial court orders them to

file a Statement of Matters Complained of on Appeal pursuant to

Rule 1925. Any issues not raised in a 1925(b) statement will be

deemed waived.” Lord, 719 A.2d at 309. This Court has held

that “[o]ur Supreme Court intended the holding in Lord to operate

as a bright-line rule, such that ‘failure to comply with the minimal

requirements of Pa.R.A.P. 1925(b) will result in automatic

waiver of the issues raised.’” Greater Erie Indus. Dev. Corp.

v. Presque Isle Downs, Inc., 2014 PA Super 50, 88 A.3d 222,

224 (Pa. Super. 2014) (en banc) (emphasis in original).

U.S. Bank, N.A. v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some

citations omitted, emphasis added); see also Greater Erie Indus. Dev.

Corp., 88 A.3d at 224 (“it is no longer within this Court’s discretion to ignore

the internal deficiencies of Rule 1925(b) statements.”).

In addition,

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Rule 1925 is a crucial component of the appellate process because

it allows the trial court to identify and focus on those issues the

parties plan to raise on appeal. This Court has further explained

that a Concise Statement which is too vague to allow the court to

identify the issues raised on appeal is the functional equivalent to

no Concise Statement at all.

Tucker, 939 A.2d at 346 (citations omitted).

Although Hoover filed a Rule 1925(b) statement, she never mentioned

violation of the Pennsylvania Rules of Evidence, or alleged violations of Rules

403, 802, 803(6)(D) and 901 identified in her brief. See Hoover’s Appellant

Brief, at 32-33; Statement of Errors Complained of on Appeal, 3/15/22, at 1-

6. The trial court did not address this issue in its opinion.5 See generally,

Trial Court Opinion, 8/19/22, at 5-24. Accordingly, Hoover waived her first

issue.

Even if Hoover had not waived this issue, she provides no legal support.

While Hoover generally cites cases discussing the Rules of Evidence, none of

the cases suggest the Rules of Evidence apply to documents Tyler did not seek

to admit into evidence; the documents were a resource for Dr. Dworkin in

preparing his expert report and testimony. See Coulter v. Ramsden, 94

A.3d 1080, 1088 (Pa. Super. 2014) (“We need not reach the merits of this

issue because the argument section of [the a]ppellant’s brief merely consists

of general statements unsupported by any discussion and analysis of relevant

____________________________________________

5 The purpose of a Rule 1925(b) statement is to afford the trial court the

opportunity to explain its ruling and correct any error. See Tucker, 939 A.2d

at 346.

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legal authority.”); In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (“[I]t is an

appellant’s duty to present arguments that are sufficiently developed for our

review. The brief must support the claims with pertinent discussion, with

references to the record and with citations to legal authorities.”) (citation

omitted, emphasis added).

Waiver notwithstanding, we would agree with the trial court’s statement

that its denial of Hoover’s request

to preclude all references to the July 2, 2018 MRI report [and to

preclude Dr. Dworkin from testifying] was proper. It is well

understood that medical experts may rely on reports customarily

relied upon in their profession. See Primavera v. Celotex

Corporation, 608 A.2d 515 (Pa. Super. 1992); See Pa.R.E. 703.

… [N]either did the [trial c]ourt err when permitting BalaCare

representative Ms. Dayanim to testify about [Tyler’s] future

medical costs. Ms. Dayanim, a registered nurse, was permitted

to use Dr. Dworkin’s diagnoses to underlie her report.

***

As the Superior Court has stated, “to preclude the testimony

of a witness is a drastic sanction, and it should be done only where

the facts of the case make it necessary.” Jacobs v. Chatwani,

922 A.2d 950, 962 (Pa. Super. 2007).

Under Pennsylvania Rule of Evidence 703, an expert’s

opinion must be “based on facts or data in a particular case.”

Pa.R.E. 703. [Hoover] contends that “An expert cannot base his

opinion upon facts which are not warranted by the record.”

Collins v. Hand, 246 A.2d 398 (Pa. Super. 1968). However, in

Primavera, the Superior Court addressed the extent to which an

expert witness may rely on information generated by other

professionals who are not subject to cross-examination. See

Primavera, 608 A.2d 515. As Primavera established, if an

expert has made faulty assumptions or leaps of judgment in

relying on certain sources or in forming conclusions based on

those sources, he should be cross examined about his

assumptions, etc. Id. at 520.

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As the [Primavera] Court explained:

[]It is well understood that medical experts are

permitted to express opinions which are based, in

part, upon reports which are not in evidence, but

which are customarily relied upon by experts in the

practice of the profession.... The fact that experts

reasonably and regularly rely on this type of

information merely to practice their profession lends

strong indicia of reliability to source material when it

is presented through a qualified expert’s eyes.[]

Primavera, 608 A.2d at 518-[]21.

In our case, Hoover’s contention is unsupported by the law.

Dr. Dworkin stated during cross-examination that his reliance on

MRI reports without MRI films is sound. [Dr.] Dworkin also

testified that he does not have access to MRI films “80 to 90

percent of the time,” and that an MRI report authored by a

neuroradiologist is sufficient to show the July 2, 2018 MRI

occurred and that its findings are reliable.

Moreover, the July 2, 2018 MRI report that underlies, in

part, the factual basis of Dr. Dworkin’s testimony is precisely the

kind of evidence that Primavera legitimizes. In Primavera, a

doctor was permitted to use the reports of other doctors who were

not available to testify in an asbestos action. There, the

Primavera Court found that a doctor’s reliance on medical

records produced by medical professionals not subject to cross-

examination was proper, where the reports formed only a small

portion of the data that the expert relied on to form his in-court

conclusions. Id. at 518. This is especially true when an expert

relied on his personal observations and firsthand knowledge of

medical evidence. Id.

In our case, during direct examination, Dr. Dworkin []

elaborated that he can form his opinion on “medical conditions”

without an MRI film, … that having a full report from the

neuroradiologist is akin to seeing the films on his own, that ample

data existed on the record to support his opinion in the instant

case, and that [Tyler’s] physical history, EMG findings and MRI

reports were sufficient to show [Tyler’s] “clinical picture.” …

Although Dr. Dworkin admitted that he never saw a film of

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[Tyler’s] July 2, 2018 cervical MRI, he was still able to base his

opinion on data from a variety of sources.

In conclusion, the [trial c]ourt did not preclude Dr.

Dworkin’s testimony for two reasons. First, the Superior Court’s

ruling in Primavera and [Jacobs] precluded the [trial c]ourt from

excluding the doctor’s testimony. Second, [Hoover] had an

opportunity to question and impeach Dr. Dworkin during cross

examination. Dr. Dworkin was in fact cross-examined about

the factual underpinnings of his conclusions relating to

[Tyler’s] cervical spine even though the actual MRI films

were never presented in [c]ourt.

***

[T]he admission of Ms. Dayanim’s testimony relating to

[Tyler’s] future costs was permissible. … In our case, the

testimony of Ms. Dayanim relating to [Tyler’s] projected future

medical costs was not based solely on Dr. Dworkin’s report as

[Hoover] contends, but rather on a multitude of other sources.

Ms. Dayanim testified that [Tyler’s] total lifetime cost was based

on documents she reviewed from various diagnostic and

treatment clinics and billing records in addition to Dworkin’s

report.

In closing, Dayanim’s future cost projection should not be

precluded because she relied on a variety of information in

compiling her report. As factual evidence underlies Dayanim’s

report, and [Hoover] had an opportunity to cross-examine her,

the [trial c]ourt respectfully requests that this claim also be

dismissed.

Trial Court Opinion, 8/19/22, at 5-12 (footnotes omitted, emphasis added).

The record supports the trial court’s rationale for declining to grant a

new trial or judgment N.O.V. See id. Hoover has not shown the trial court

either abused its discretion or committed an error of law. In re McNeill-PPC,

97 A.3d at 1224; Hall, 54 A.3d at 395. Thus, even if not waived, Hoover’s

first claim would not merit relief.

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(2) [Whether] Judgment N.O.V. or a new trial is required due to the

admission of testimony of [Tyler’s] medical expert beyond the

scope of his report.

Hoover again challenges the trial court’s denial of judgment N.O.V. or a

new trial. She claims the trial court erred in allowing Dr. Dworkin “to offer

testimony that [Tyler] will need future medical care to her low back, including

epidural injections to her low back and ‘the distinct medical possibility that

she would require surgery both in the cervical region and the lumber

region.’” Hoover’s Appellant Brief at 35-36 (emphasis in original).

Our standard of review is well settled. The admissibility of evidence is

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

an abuse of discretion. Whitaker v. Frankford Hosp., 984 A.2d 512, 522

(Pa. Super. 2009) (trial court’s admission of expert testimony will not be

disturbed absent manifest abuse of discretion). Expert testimony is

admissible when it “involves explanations and inferences not within the range

of ordinary training[,] knowledge, intelligence and experience.”

Commonwealth v. Walker, 92 A.3d 766, 788 (Pa. 2014) (citation omitted).

We have further explained:

[An] expert’s testimony on direct examination is to be limited to

the fair scope of the expert’s pre-trial report. In applying the fair

scope rule, we focus on the word “fair.” Departure from the

expert’s report becomes a concern if the trial testimony would

prevent the adversary from preparing a meaningful response, or

which would mislead the adversary as to the nature of the

response. Therefore, the opposing party must be prejudiced as a

result of the testimony going beyond the fair scope of the expert’s

report before admission of the testimony is considered reversible

error.

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Whitaker, 984 A.2d at 522 (citation omitted).

Hoover’s claim is belied by the record. In his report, Dr. Dworkin

detailed the injuries to Tyler’s cervical and lumbar regions. See Dr. Dworkin

Report, 12/2/19, at 1-2; see also id. at 19 (diagnosing Tyler with

“posttraumatic low back pain … [Tyler] suffers from serious and permanent

injury to bodily functions vis-à-vis cervical and lumber spine segments[.]”).

Dr. Dworkin stated Tyler would “require ongoing medical care as a result of

these injuries[.]” Id. at 4 (emphasis added). Thus, in his report, Dr.

Dworkin opined Tyler would require future treatment for both her cervical

spine and lumbar spine injures. Dr. Dworkin concluded his report by

predicting future treatment “included but [would not be] limited to”

various treatments. Id. at 4 (emphasis added). The report put the parties

on notice that the list of treatments was not exhaustive. Dr. Dworkin’s

testimony that Tyler might require future lumber spine surgery was within the

“fair scope” of his expert report. See Whitaker, 984 A.2d at 522. Hoover’s

second issue merits no relief.

(3) [Whether] Judgment N.O.V. or a new trial is required due to the

verdict being against the weight of the evidence.

Hoover argues the jury’s verdict was against the weight of the evidence.

See Hoover’s Appellant Brief at 38-43. Specifically, she contends “the jury

found as a fact that [Tyler] did not sustain a serious injury” but

returned a verdict for almost $200,000 for economic losses which

[Tyler] did not sustain, and … will never sustain. It appears the

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verdict was engendered by bias or prejudice against [Hoover],

perhaps in an effort to punish her for causing the motor vehicle

accident, or more likely, based upon the testimony of Dr. Dworkin

suggesting [Tyler] might need future surgery to her lumb[a]r

spine, which should have been excluded from evidence[.]

Id. at 38-40.

We recognize:

The decision to grant or deny a motion for a new trial based upon

a claim that the verdict is against the weight of the evidence is

within the sound discretion of the trial court. Thus, the function

of an appellate court on appeal is to review the trial court’s

exercise of discretion based upon a review of the record, rather

than to consider de novo the underlying question of the weight of

the evidence. An appellate court may not overturn the trial court’s

decision unless the trial court palpably abused its discretion in

ruling on the weight claim. Further, in reviewing a challenge to

the weight of the evidence, a verdict will be overturned only if it

is so contrary to the evidence as to shock one’s sense of justice.

….

A trial court’s determination that a verdict was not against the

interest of justice is [o]ne of the least assailable reasons for

denying a new trial. A verdict is against the weight of the evidence

where certain facts are so clearly of greater weight that to ignore

them or to give them equal weight with all the facts is to deny

justice.

Tong-Summerford v. Abington Mem’l Hosp. & Radiology Grp. of

Abington, P.C., 190 A.3d 631, 659 (Pa. Super. 2018) (citations omitted).

Our Supreme Court has explained:

While a jury’s verdict and damages award are generally insulated

from challenge, the grant of a new trial may be required to achieve

justice in those instances where the original trial, because of taint,

unfairness, or error, produces something other than a just and fair

result, which is the principle goal of judicial proceedings. … [A]

jury verdict may be set aside as inadequate when it appears to

have been the product of passion, prejudice, partiality, or

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corruption, or where it clearly appears from uncontradicted

evidence that the amount of the verdict bears no reasonable

relation to the loss suffered by the plaintiff. Where the jury’s

verdict is so contrary to the evidence as to shock one’s sense of

justice a new trial should be awarded. [The Court] cautioned that

it was within the province of the jury to assess the worth of the

testimony and to accept or reject the estimates given by the

witnesses, and if the verdict bears a reasonable resemblance to

the proven damages, it is not the function of the court to

substitute its judgement for the jury’s….

Mader v. Duquesne Light Co., 241 A.3d 600, 612-13 (Pa. 2020) (citations

omitted).

The trial court correctly and concisely disposed of this issue, stating:

[T]here was substantial evidence in the record that a [j]ury could

find favorably for [Tyler]. Dr. Dworkin testified on direct

examination that [Tyler] suffered from severe traumatic cervical

and neck injuries and had radiation of pain into both her left and

right arm. … [Tyler] also had various lumbar injuries documented

through an EMG [medical imaging scan], a physical examination,

and an MRI.

Furthermore, [Tyler’s] future medical expenses were

projected to amount to $306,226.35. This projection was based

upon specific timeframes and intervals wherein [Tyler] would need

to seek further medical treatment over time resulting from her

injuries in the instant action.

It is evident that the damages awarded to [Tyler] were not

the result of mere speculation, but rather based on the evidence

the [j]ury considered at [t]rial. … [L]arge verdicts are not

necessarily excessive verdicts. Gillingham v. Consol Energy.

Inc., 51 A.3d 841, 857 (Pa. Super 2012). As such, there was

sufficient evidence to warrant the [j]ury’s verdict, so as to not

shock one[’]s sense of justice and render a new trial imperative.

Trial Court Opinion, 8/19/22 at 19-20 (footnotes omitted).

The record supports the trial court’s analysis. The court did not

“palpably abuse its discretion” in denying Hoover’s weight of the evidence

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claim. Tong-Summerford. 190 A.3d at 659. Hoover’s third issue does not

warrant relief.

(4) The trial court applied an incorrect standard of review in denying

[Hoover’s] motion for post-trial relief.

Hoover complains the trial court’s opinion is deficient. Hoover’s

Appellant Brief at 43-45. She specifically argues, “The court below failed to

recognize that [Hoover], not [Tyler] was the verdict winner.” Id. at 45. She

contends that because she was the verdict winner, the trial court “was

required to view the evidence in the light most favorable to [Hoover].” Id.

Hoover waived this claim because she did not raise it in her Rule 1925(b)

statement.6 See Statement of Errors Complained of on Appeal, 3/15/22, at

1-6; see also U.S. Bank, N.A., 193 A.3d at 996-97 (waiving issues not raised

in Rule 1925(b) statement).

(5) [Hoover] is entitled to a remittitur due to the grossly excessive,

inconsistent and unwarranted award of future medical costs to

[Tyler] who was not seriously injured and incurred no past

medical expenses.

Hoover claims she is entitled to remittitur, because “there is no rational

explanation for the grossly excessive award of economic losses based on

____________________________________________

6 Regardless, we are unable to ascertain the factual basis for Hoover’s

contention that the jury rendered a defense verdict. The record indicates the

verdict was “Jury [v]erdict for [Tyler].” Trial Work Sheet, 11/19/21, at 1. The

verdict slip likewise indicates the jury found Hoover’s negligence “a factual

cause of the harm to [Tyler].” Verdict Slip, 11/17/21, at 1 (unnumbered).

The jury awarded damages to Tyler for future medical costs of $188,632. Id.

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supposed future medical expenses.” Hoover’s Appellant Brief at 47. She

asserts:

This is particularly so in a case where the undisputed evidence

demonstrates [Tyler] sustained no out-pocket losses, no past

medical expenses, no time lost from employment, and had not

received any medical treatment whatsoever for two and a half

years preceding trial in this matter.

Id.

As to the denial of remittitur,

[o]ur standard of review … is circumspect and judicial reduction of a jury

award is appropriate only when the award is plainly excessive and

exorbitant. The question is whether the award of damages falls within

the uncertain limits of fair and reasonable compensation or whether the

verdict so shocks the sense of justice as to suggest that the jury was

influenced by partiality, prejudice, mistake, or corruption. Furthermore,

the decision to grant or deny remittitur is within the sole discretion of

the trial court, and proper appellate review dictates this Court reverse

such an Order only if the trial court abused its discretion or

committed an error of law in evaluating a party’s request for

remittitur.

Renna v. Schadt, 64 A.3d 658, 671 (Pa. Super. 2013) (citations omitted and

formatting altered, emphasis added).

The trial court explained its decision to deny remittitur:

In the case at bar, [Tyler’s] own expert, Dr. Dworkin, testified

about [Tyler’s] injuries and how they were objectively supported.

… Dr. Dworkin characterized [Tyler’s] injuries shown by the EMG

reports, physical examination, and MRI reports as “devastating”

and “difficult.” Finally, he concluded that [Tyler’s] condition was

subject to future “decline.”

Based on Dr. Dworkin’s assessment, a future medical cost

projection was created by [Tyler’s] expert [Dayanim] on behalf of

BalaCare solutions. After considering [Tyler’s] future care

requirements, Ms. Dayanim calculated that [Tyler’s] total lifetime

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cost totaled $306,226.00. This included costs for diagnostic

testing, epidural injections, physical therapy, and surgery.

In support of the medical testimonies, [Tyler] herself

testified that her condition subsequent to the May 2018 motor

vehicle accident changed drastically. She said that her pain,

particularly in her lower back, worsened considerably. Her

testimony clearly corroborated the objective evidence Dr. Dworkin

presented. The [j]ury could consider all of this evidence in their

deliberations.

[Hoover’s] arguments supporting her motion for remittitur

bare striking resemblance to those made by the [d]efense in

Guirlene v. Ryan, 2020 WL 886048, *14 (Pa. Super. 2020)

[(unpublished memorandum)].[7] Indeed, Guirlene forms the

basis of [Hoover’s] motion for post-trial relief concerning the

damages awarded. [The trial court] will now explain that while

the guidance in Guirlene is well taken, distinguishing facts and

circumstances did not allow this [t]rial [c]ourt to grant [Hoover’s]

motion for remittitur.

The Superior Court in Guirlene affirmed the [t]rial [c]ourt’s

decision to grant a new trial, where the verdict in a negligence

action was considered excessive. Id. Like the instant action, the

[j]ury in Guirlene found that the plaintiff did not suffer a serious

impairment of a bodily function. Id. at *9. Nonetheless, the

[j]ury awarded the [p]laintiff $600,000 where future medical costs

were projected to cost as much as $695,000. Id. at *12. In

affirming the [t]rial [c]ourt’s finding [that] the verdict [w]as

excessive, the Superior Court analyzed factors that could render

a damages award improper and warrant a new trial.

One factor that should be considered is the specificity of

required future medical care. The Superior Court in Guirlene held

that relief was not due where, in part, the [p]laintiff failed to offer

a clear estimation of how frequently - and for how long - such

treatments will likely occur. Id. at *12. The testimony of

[p]laintiff’s expert did not describe how often the [p]laintiff would

need epidural injections, nor did it specify which of the surgeries

____________________________________________

7 Pa.R.A.P. 126(b) provides that unpublished Superior Court decisions filed

after May 1, 2019, may be cited for persuasive value.

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discussed during trial would be recommended for treatment. Id.

at *12.

In our case, the report provided by BalaCare Solutions,

specifically the summary of costs, depicts various potential future

medical costs, including medical imaging, physical therapy, and

other costs. Furthermore, unlike the [p]laintiff’s expert medical

witness in Guirlene, Dr. Dworkin has identified one specific

potential surgery for [Tyler] rather than two general surgeries not

tailored to the actualities of the [p]laintiff. Id. at *13. Therefore,

the facts of Guirlene are quite distinct from those in the instant

case. For the foregoing reasons, the [trial c]ourt did not err when

denying [Hoover’s] motion for remittitur[.]

Trial Court Opinion, 8/19/22, at 21-24 (footnotes omitted, one footnote

added).

We have reviewed the record and the pertinent law. Because the trial

court committed neither an abuse of discretion nor an error of law, Hoover’s

final claim does not merit relief. Renna, 64 A.3d at 671.

Appeal of Tyler: No. 656 EDA 2022

(1) Whether the trial court abused its discretion and otherwise

committed an error of law when it improperly denied [Tyler’s]

post-trial motion for delay damages by way of order dated

February 11, 2022 and supporting opinion dated August 19,

2022

Tyler argues the trial court “abused its discretion when it denied [her

claim for] delay damages.” Tyler’s Appellant Brief at 12. Tyler observes that

delay damages are a “means to sanction defendants for unreasonably refusing

to settle meritorious claims” and the trial court, while acknowledging Hoover

did not engage in settlement negotiations or make a written settlement offer,

failed to address “this consideration.” Id.; see id. at 12-13. Tyler further

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alleges the trial court made erroneous factual findings, including (a) finding

that two continuance requests made by Hoover were joint requests; and (b)

attributing delays to Tyler that were caused by a third party. Id. at 15-16.

After a thorough review of the law and record, we agree.

Pa.R.C.P. 238 provides:

(1) At the request of the plaintiff in a civil action seeking monetary

relief for bodily injury, … damages for delay shall be added to

the amount of compensatory damages awarded against each

defendant or additional defendant found to be liable to the plaintiff

in the verdict of a jury ….

(2) Damages for delay shall be awarded for the period of time

from a date one year after the date original process was first

served in the action up to the date of the award, verdict or

decision.

***

(b)(1) The period of time for which damages for delay shall be

calculated under subdivision (a)(2) shall exclude the period of

time, if any,

(i) after the defendant made a written offer which complied

with the requirements of subdivision (b)(2), provided that

the plaintiff obtained a recovery which did not exceed the

amount described in subdivision (b)(3), or

(ii) during which the plaintiff caused delay of the trial.

Pa.R.C.P. 238(a)(1)-(2) and (3)(b)(1) (emphasis added).

Instantly, the trial court opined:

[Tyler’s] request for delay damages is unwarranted. The instant

civil action commenced on June 24, 2019. Throughout the [t]rial,

[Tyler] was the target of numerous discovery motions seeking

compliance with discovery procedures. [Tyler’s] noncompliance

with discovery rules does not warrant an award in her favor with

regard to delay damages.

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[Tyler] does not recognize that case management delays

were stipulated to by both parties in two separate Motions for

Extraordinary Relief. This constitutes a delay of trial that cannot

be attributed solely to [Hoover]. Under Rule 238(b)(2), this

period may not be used to calculate delay damages against

[Hoover]. Nonetheless, [Tyler] does not take this into

consideration when calculating her delay damages. In fact, it is

unclear what basis underlies [Tyler’s] formulation for delay

damages.

[Tyler’s] estimation of delay damages are not properly

calculated to reflect the lengthy pre-trial journey of the instant

case. [Tyler] calculates the amount of delay damages on a per

diem rate from July 16, 2020 to November 17, 2021. November

17, 2021, the date the [j]ury successfully found a verdict in favor

of [Tyler], is readily ascertainable from the docket. July 16, 2020,

the date inputted to determine the start of delay, is not a relevant

date in this litigation. This [trial c]ourt assumes [Tyler] intended

to cite the date [Hoover] was given service, July 16, 2019. On

this standing alone, it would be patently unjust and an abuse of

discretion to award a wholly arbitrary amount of delay damages.

[Tyler] has not provided an adequate basis to justify the

[t]rial [c]ourt awarding delay damages. [Tyler] has not identified

delays attributable to [Hoover], nor has [Tyler] offered a proper

calculation of damages to the [trial c]ourt. In keeping with the

[Pennsylvania] Supreme Court’s decision in [Craig v. Magee

Memorial Rehab. Ctr., 515 A.3d 1350, 1353 (Pa. 1986)], the

[trial c]ourt does not believe that the delays in this case were

solely attributed to [Hoover]. Contrarily, there was evidence that

[Tyler] herself was at fault for the delays.

Trial Court Opinion on Cross-Appeal, 8/19/22, at 6-7.

The trial court misconstrues the law concerning delay damages and its

purpose. Under Rule 238, a plaintiff does not have to justify an award of delay

damages; the award is mandatory. See Pa.R.C.P. 238(a)(1). Further, the

trial court’s finding that Tyler’s calculation of the damages from July 16, 2020,

was “not a relevant date in this litigation,” is incorrect. Trial Court Opinion on

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Cross-Appeal, 8/19/22, at 6. Rule 238 provides that delay damages start

accruing one year from the date of service of process. Pa.R.C.P. 238(a)(2).

Therefore, July 16, 2020, one year from the date of service of process, is the

correct date for calculating delay damages under Pa.R.C.P. 238(a)(2).

Lastly, this Court has explained:

Rule 238 seeks to encourage settlement and achieve a prompt

disposition of cases so as to unclutter the [c]ourt[s’] dockets. The

Rule also serves to compensate a plaintiff for the delay in

receiving funds rightly due to him, but which remain in the

defendant’s hands during the litigation process. … [I]n

essence, Rule 238 delay damages are an extension of the

compensatory damages necessary to make a plaintiff whole.

Grimm v. Universal Medical Ser., Inc., 156 A.3d 1282, 1289 (Pa. Super.

2017) (citations omitted, emphasis added).

Our review discloses no support for the trial court’s finding that Tyler

“herself was a fault for the delays.” Trial Court Opinion on Cross-Appeal,

8/19/22, at 7.

While Hoover filed two motions to compel discovery against Tyler, those

motions were filed in 2019, prior to the period when delay damages began to

accrue. There is nothing of record demonstrating that the motions delayed

the start of trial. Rather, the record indicates that later discovery extensions

and trial delay were caused by issues with obtaining discovery from Advanced

Diagnostics. See Motion for Extraordinary Relief, 7/8/20 at 2 (unnumbered).

As Tyler discusses in her brief, Hoover in 2020 filed two motions for

extraordinary relief requesting continuances. Tyler did not oppose the first

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motion but opposed the second motion. See Tyler’s Appellant Brief, at 15-

16; Motion for Extraordinary Relief, 3/2/20, at 2 (unnumbered); Motion for

Extraordinary Relief, 7/8/20 at 2 (unnumbered).

Hoover served discovery requests on Tyler with less than 30 days

remaining in discovery and requested some of the relief in the first motion

prematurely. See Tyler’s Appellant Brief at 17-18; Case Management Order,

2/10/19, at 1 (unnumbered); Motion for Extraordinary Relief, 3/2/20, at 2

(unnumbered). The second motion sought a continuance based on Covid-19

limitations and the problems Hoover had in obtaining discovery from Advanced

Diagnostics. Motion for Extraordinary Relief, 7/8/20 at 2 (unnumbered).

Thus, the trial court’s finding that Tyler bore some responsibility for these

delays is unsupported in the record.

Nonetheless, the Comment to Rule 238 makes clear that discovery

delays caused by a plaintiff are not necessarily a basis for reducing, or in this

case, declining to award delay damages:

With respect to delay of the trial, not every procedural delay is

relevant to the issue of delay damages, but only such

occurrences as actually cause delay of the trial. For

example, failure by the plaintiff to answer interrogatories within

thirty days should not affect the award of damages for delay

unless the trial was delayed as a result. Otherwise, the

introduction of the fault concept and its attendant hearing would

create a large new field of court hearings revolving around

evidence of dilatory compliance with discovery procedures, the

evidence of which would consist almost entirely of the attorneys

testifying against each other and could be years old before the

hearing. It is felt that present Rule 4019 provides a vehicle,

although little used at present, which can timely dispose of delay

due to discovery noncompliance regardless of whether or not it

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delays the trial. The note under proposed Rule 238(b)(2) is a

reminder of this alternative remedy to halt delay damages and to

expedite preparation of the case for trial.

Pa.R.C.P. 238, comment (emphasis added).

Regarding delays caused by the Covid-19 judicial emergency, this Court

recently stated:

Th[e Covid-19] issue requires us to interpret and apply the

Supreme Court’s Order and [Pa.R.C.P.] 238. Thus, it presents us

with a pure question of law. …

Sitting en banc, this Court explained the drafters of Rule 238

“specified two, and only two, periods of time to be excluded

from the calculation of delay damages ….” King v. SEPTA,

383 Pa. Super. 420, 557 A.2d 11, 12-13 (Pa. Super. 1989) (en

banc). Those two excluded periods are “(1) any periods of time

after which the defendant has made a written offer of settlement,

the offer is continued in effect for at least ninety days or until the

commencement of trial, whichever first occurs, the offer is

rejected by the plaintiff, and the plaintiff does not recover more

than 125 percent of the offer; and (2) any periods of time during

which the plaintiff caused delay of the trial.” Id. (quoting Miller

v. Wise Bus. Forms, Inc., 381 Pa. Super. 236, 553 A.2d 443,

446 (Pa. Super. 1989)). Thus, we concluded that Rule 238 has

“not allowed for the exclusion of periods of delay not caused by

either party.” Id. at 13 (emphasis in original).

….

COVID-19 and the judicial emergency it created did not diminish

the rights of plaintiffs to be made whole, nor did they prohibit

defendants from engaging in settlement negotiations or making

reasonable offers to help alleviate court dockets. … [S]imply

because the flow of cases had temporarily stopped, it does not

follow that all legal practice had also ceased. [The defendant] was

free at all times during the judicial emergency to increase its offer

to induce the [plaintiffs] to settle and thereby avoid delay

damages.

… We do not read the March 18, 2020 Order of the Supreme

Court as permitting tortfeasors to reap unjust windfalls from a

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five[-]month delay that was clearly beyond the control of their

victims. … [T]he [defendant] must compensate the [plaintiffs] for

using their money during the judicial emergency to the fullest

extent of Pa.R.C.P. 238.

Getting v. Mark Sales & Leasing, Inc., 274 A.3d 1251, 1261-62 (Pa. Super.

2022) (emphasis omitted and added).

It is undisputed that Hoover did not make any written settlement offer.

See Trial Court Opinion on Cross-Appeal, 8/19/22, at 5; Tyler’s Appellant Brief

at 13-14; Hoover’s Brief on Cross-Appeal at 5-6 (recounting the procedural

history of the case without reference to any settlement negotiations or offers).

As discussed above, the record demonstrates Tyler did not request any

continuances and trial delays were caused by Hoover’s last-minute discovery

requests and problems with obtaining discovery from a third party, Advanced

Diagnostics. Consistent with our decisions in Getting and Miller, delays

caused by third parties are not attributable to Tyler, and Tyler is entitled to

delay damages. Getting, supra at 1261-62; Miller, supra at 446.

Therefore, we are constrained to reverse the order denying Tyler’s motion for

delay damages.

In sum, we vacate the trial court’s judgment and remand for the trial

court to mold the verdict to include delay damages and interest.

Judgment affirmed in part and vacated in part. Case remanded with

instructions. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2023

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