Cole, M. v. Janoski, M.

J-A14038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MERRITT COLE AND BETH COLE, HIS : IN THE SUPERIOR COURT OF

WIFE : PENNSYLVANIA

:

Appellants :

:

:

v. :

:

: No. 2452 EDA 2022

MARIA JANOSKI, ESQ., :

ADMINISTRATRIX OF THE ESTATE :

FOR SUIT PURPOSES ONLY FOR THE :

ESTATE OF RICHARD P. WALLACE, :

M.D. :

Appeal from the Judgment Entered November 17, 2022

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 190402312

BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 19, 2023

Merritt Cole and Beth Cole (collectively “the Coles”) appeal from the

judgment entered against them and in favor of Maria Janoski, Esq., as

Administratrix of the Estate of Richard P. Wallace, M.D. (“Dr. Wallace”). We

affirm.

The trial court provided the factual and procedural history of this case,

which we set forth in relevant part as follows:

. . . Merritt Cole [(“Mr. Cole”)] and Beth Cole (husband and

wife) brought this action against their family physician of more

than [thirty] years, [Dr. Wallace], who died shortly after the

lawsuit was filed, claiming that Dr. Wallace negligently treated Mr.

Cole’s hyperlipidemia by failing to ensure that Mr. Cole take a

statin medication. Following the filing of a suggestion[] of death,

[the Coles] brought a motion to obtain an order from the court to

compel Dr. Wallace’s widow to involuntarily assume the personal

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defense of the action, which the court denied as procedurally

improper and without prejudice to the right to properly and

procedurally correctly refile once the Registrar of Wills had

properly designated a personal representative for the estate. A

substitution was thereafter filed appointing Maria Janoski, Esquire,

as admistratrix ad [litem] . . .. [The estate pleaded the defense

of comparative negligence in its answer and new matter. See

Answer and New Matter, 7/17/19, at ¶ 24. Prior to trial, the Coles

filed a motion in limine to preclude testimony by defense expert

witness Edward Gary Lamsback, M.D.]

****

[The Coles, in their motion in limine, sought] to

preemptively prevent [Dr. Lamsback] from presenting

[testimony] on the treatment records and contents of Dr.

Wallace[’s files] showing repeated documented occasions in which

Mr. Cole declined or refused to follow Dr. Wallace’s treatment

recommendations for diagnostic testing, prescription, lifestyle

modifications[,] or other treatments. [The Coles] argue[d] that,

[if] the court allowed this . . . testimony, it introduced an element

of [comparative] negligence on the part of conduct refusal or

inaction of Mr. Cole that [would] undermine[] the [Coles’] case by

. . . taking the focus off the doctor and putting it on Mr. Cole [and

his compliance or non-compliance with Dr. Wallace’s treatment

recommendations. The trial court denied the motion in limine.]

****

. . . [This matter proceeded to trial from May 31, 2022 -

June 2, 2022. The Coles’ theory at trial was not] that Dr. Wallace

“failed to diagnose” Mr. Cole’s underlying condition OR failed to

inform him of the results of his informative and timely medical

tests (revealing elevated cholesterol, also known by the medical

term “hyperlipidemia”) OR provided treatment that exacerbated

his condition and failed to advise of healthy lifestyle changes.

[The Coles’] claim was that Dr. Wallace “should have written,” that

is, physically written or electronically transmitted to some

unknown pharmacy, a prescription . . .. [The Coles’] experts

presented a radically different . . . portrait of the physician-patient

relationship and the obligations of a treating family physician . . .

to the jury th[a]n did defendants. In their argument, a physician

not only discusses the subject with the patient and makes a

recommendation, relying upon the patient’s own autonomy and

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judgment to make the ultimate decision, but somehow unilaterally

“prescribes” [medication] . . .. [Additionally, the Coles argued

that Dr. Wallace’s periodic recommendation of CT scans to

monitor the buildup of plaque in Mr. Cole’s arteries, via calcium

deposits, was below the applicable standard of care for

hyperlipidemia, and that Dr. Wallace instead should have simply

prescribed Mr. Cole a statin once his LDL reached 190.] . . ..

****

[The Coles] only presented the live testimony before the

jury of one of its experts — [] Michael Soboeiro[, M.D.] The

[Coles’] other [expert] witnesses were presented via video

depositions . . .. [Merritt and Beth Cole also testified.]

****

[The trial court additionally admitted] testimony from the

defense medical witnesses, [Dr. Lamsback and Frank C.

McGeehin, M.D.,] two doctors who reviewed the records of Dr.

Wallace and outlined the history of the treatment of Mr. Cole—

what it consisted of, how Dr. Wallace communicated with him and

what recommendations Dr. Wallace made (and the extent to

which Mr. Cole complied with them).

****

[Following the closing, t]he jury returned a verdict on June

2, 2022, in which it answered the first jointly agreed upon jury

interrogatory on the verdict slip[,] “No,” i.e., determining after

deliberation that Dr. Wallace was not negligent in his care of Mr.

Cole.

Trial Court Opinion, 9/16/22, at 1, 2, 4, 7, 9 (paragraphs re-ordered for

clarity). The Coles filed a timely post-trial motion, which the trial court

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denied.1 The Coles timely appealed,2 and both the Coles and the trial court

complied with Pa.R.A.P. 1925.3

The Coles raise the following issue for our review:

1. Did the trial court abuse its discretion in permitting the defense

experts to offer opinion testimony beyond the fair scope of their

reports[,] resulting in an unjust verdict[?]

2. Did the trial court abuse its discretion in denying [the Coles’]

pretrial motion in limine to bar evidence of comparative or

contributory negligence on the part of [Mr. Cole,] resulting in

an unjust verdict?

Coles’ Brief at 1, 4 (unnecessary capitalization omitted; issues re-ordered for

ease of disposition).

Both of the Coles’ issues concern the trial court’s evidentiary rulings.

We have articulated our scope and standard of review for evidentiary rulings

as follows:

We review a trial court’s evidentiary decisions for an abuse

of discretion. In this context, discretion is abused when the course

pursued represents not merely an error of judgment, but where

the judgment is manifestly unreasonable or where the law is not

____________________________________________

1 The order denying the Coles’ post-trial motion is dated September 6, 2022,

time-stamped August 15, 2022, and docketed September 16, 2022.

2 While the Coles appealed on September 22, 2022, following the denial of

their post-trial motion, the trial court had yet to enter a judgment; however,

following a rule to show cause issued by this Court on November 14, 2022,

the Coles filed a praecipe for judgment on November 16, 2022, and the trial

court entered judgment on November 17, 2022.

3 The trial court, in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), directed

this Court to its September 16, 2022 memorandum and order in which it

denied the Coles’ post-trial motion and stated therein the reasons for its

ruling. See Statement of Reasons, 12/27/22.

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applied or where the record shows that the action is a result of

partiality, prejudice, bias or ill will. To reverse the trial court, th[is

C]ourt must consider all the evidence in the light most favorable

to the appellee and conclude that the verdict would be changed if

another trial were granted.

Hassel v. Franzi, 207 A.3d 939, 950 (Pa. Super. 2019) (internal citations,

quotations, and some brackets omitted).

In their first issue, the Coles argue the trial court erred in permitting the

defense experts to testify outside the fair scope of their expert reports.

Pennsylvania Rule of Civil Procedure 4003.5(c) provides, in relevant part, that

“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.” Pa.R.C.P. 4003.5(c).

In applying Rule 4003.5(c), this Court has observed,

[I]t is impossible to formulate a hard and fast rule for

determining when a particular expert’s testimony exceeds the fair

scope of his or her pretrial report. Rather, the determination must

be made with reference to the particular facts and circumstances

of each case. The controlling principle which must guide is

whether the purpose of Rule 4003.5 is being served. The purpose

of requiring a party to disclose, at his adversary’s request, the

substance of the facts and opinions to which the expert is

expected to testify is to avoid unfair surprise by enabling the

adversary to prepare a response to the expert testimony. In other

words, in deciding whether an expert’s trial testimony is within the

fair scope of his report, the accent is on the word “fair.” The

question to be answered is whether, under the particular facts and

circumstances of the case, the discrepancy between the expert’s

pretrial report and his trial testimony is of a nature which would

prevent the adversary from preparing a meaningful response, or

which would mislead the adversary as to the nature of the

appropriate response.

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Hassel, 207 A.3d at 951 (internal citations and quotations omitted).

The Coles argue the trial court abused its discretion in permitting the

defense experts to testify outside the fair scope of their reports. According to

the Coles, “[n]either defense expert articulated in their reports the standard

of care for the management of hyperlipidemia.” Coles’ Brief at 46. The Coles

assert that Dr. Lamsback wrote a “rambling report” setting forth how Dr.

Wallace’s care was “reasonable and appropriate and met the standard of care

for [Mr.] Cole,” and that Dr. McGeehin admitted on cross examination that he

did not “articulate the standard of care in his report . . ..” Id. According to

the Coles, neither doctor set forth his opinion about what the standard of care

was “in [his] respective expert report[.]” Id. at 47.

The trial court considered the Coles’ assertions and concluded they were

meritless:

As to contents of the testimony of defense medical experts,

it is clear from the record that [the Coles’] counsel interposed a

barrage of objections during testimony of the defense experts,

repeatedly asserting that questions sought testimony “beyond the

scope” of the experts’ reports. The court has reviewed each and

every such evidence objection in the transcript, side-by-side with

the reports, and has determined that the information elicited fell

well within the fair scope of matters clearly discussed in the

reports and derivable from the witness’ discussion and analysis.

The record of the trial reveals that [the Coles’] apparent concerns

were not based upon any purported prejudice or surprise

occasioned by the testimony of the defense experts or any lack of

foundation for the experts’ conclusions (both doctors exhaustively

reviewed Dr. Wallace’s records as well as Mr. Cole’s deposition

testimony). Indeed, [the Coles] seemed to have had a problem

with how the defense experts interpreted the records and the

conclusions that they were able to draw from [Mr. Cole’s] medical

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history, a history that revealed a pattern of declining to initiate

drug treatment and repeated failure to follow-up on testing and

return visits. . . ..

****

. . . [T]he [Coles] now contend that [the defense] experts

failed to use sufficiently “magic” language in their reports to be

able to express an opinion at trial on the standard of care. . . .

However, both medical doctors thoroughly discuss the salient

points of Dr. Wallace’s treatment, his noted recommendations and

the ongoing progress. Both expert reports clearly state their

assessments as to what aspects of Dr. Wallace’s records support

the conclusion that his treatment was appropriate for [Mr. Cole’s]

condition. Clearly, the finding that a treatment was appropriate

sufficiently encompasses and equates with the conclusion that the

treatment met the standard of care. [The Coles’] linguistic

machinations are without merit[,] as the court finds that the

reports sufficiently apprised [the Coles] of the experts reasoning

and conclusions and their testimony at trial was within the fair

scope of their reports.

****

The [Coles’] grounds for . . . relief are largely focused on

the contents of the expert reports and whether the testimony

exceeded the fair scope of the reports. . . ..

****

There is no suggestion here that [the Coles] were surprised

by the testimony of the defense experts. Rather it appears that

they strenuously disagreed with the defense experts’ conclusions

and disputed whether the conclusions were supported by the

evidence at trial or a fair representation of the contents of Dr.

Wallace’s records. . . ..

Trial Court Opinion, 10/24/22, at 11-13, 22-23 (footnote and citations

omitted).

Following our review, we discern no abuse of discretion by the trial court

in determining that the testimony of Drs. Lamsback and McGeehin was within

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the fair scope of their expert reports. Dr. Lamsback’s expert report opined

that Dr. Wallace met the standard of care for hyperlipidemia, as is shown in

the following excerpts:

A chart from May 31, 2000 confirms that[,] at this point[,

Dr. Wallace] recommend[ed] starting medication to reduce

cholesterol. . . . A note to contact the office was in the records.

A chart entry on February 2, 2004 confirmed that the cholesterol

level remained elevated[,] and it was time to consider medication

and a new heart scan. . . ..

Dr. Wallace continued to provide reasonable and

appropriate primary care over the next 10 years.

****

Review of records provided confirms that Dr. Wallace

recommended cholesterol[-]reducing medication in June 1997[,]

in addition to June 2000 and February 2001. This is clearly

documented in Dr. Wallace’s chart notations. Dr. Wallace made

these recommendations based on evaluating the patient[’]s risk

profile and by appreciating that statins, especially the early

versions[,] had potential significant adverse effects . . ..

****

. . . [Mr.] Cole was provided with multiple opportunities to

treat his hyperlipidemia and[/]or to proceed with testing that

would have resulted in the need to treat his hyperlipidemia . . ..

[Mr.] Cole did not pursue these multiple and reasonable

opportunities that were provided to him. The care provided by Dr.

Wallace met the standard of care and was reasonable and

appropriate.

Lamsback Report, 12/20/20, at 2, 5, 6 (emphases added). This is consistent

with Dr. Lamsback’s testimony that Dr. Wallace met the standard of care.

See, e.g., N.T., 6/2/22, at 48.

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We additionally note that Dr. McGeehin also expressly opined in his

expert report that Dr. Wallace complied with the applicable standard of care:

Records from May 31, 2000 recommend initiation of drug

therapy for dyslipidemia.[4] This was also reconfirmed in the visit

of February 2, 2002. . . .

Dr. Wallace was regularly monitoring and discussing Mr.

Cole’s lipid profile. . . . Repeatedly, Dr. Wallace spoke to Mr. Cole

regarding initiation of statin therapy. These discussions included

potential side effects. The patient was also advised to undergo

repeat coronary CT scanning seven times between 2008 and

2018. The patient had also been advised to undergo stress testing

in October 2017 which was not performed.

****

The most important issue here is that Dr. Wallace

meticulously followed and discussed Mr. Cole’s risk factors for

[coronary artery disease]. Mr. Cole elected to forego

pharmacologic and further diagnostic testing, as was his right.

Dr. Wallace met and exceeded the standard of medical care

over decades with Mr. Cole. At the end of the day, physicians

offer advice but cannot force patients to initiate treatments

regardless of the medical literature showing benefit. . . ..

McGeehin Report, 1/12/21, unnumbered at 2-3 (emphasis added). This was

consistent with Dr. McGeehin’s trial testimony. See, e.g., N.T., 6/2/22, at

97. As both of the defense experts’ reports expressly spoke to whether Dr.

Wallace complied with the standard of care in his treatment of Mr. Cole, we

conclude that the trial court did not abuse its discretion in determining that

____________________________________________

4 Dyslipidemia is the imbalance of lipids such as cholesterol, low-density

lipoprotein cholesterol, triglycerides, and high-density lipoprotein.

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the doctors’ testimony did not exceed the fair scope of their reports. Thus,

the Coles’ assertion of error on this point is meritless.

In their second issue, the Coles argue the trial court erred in denying

their motion in limine to preclude testimony by Dr. Lamsback. The standard

of review for challenges to rulings on motions in limine is as follows:

A motion in limine is used before trial to obtain a ruling on the

admissibility of evidence. It gives the trial judge the opportunity

to weigh potentially prejudicial and harmful evidence before the

trial occurs, thus preventing the evidence from ever reaching the

jury. A trial court’s decision to grant or deny a motion in limine is

subject to an evidentiary abuse of discretion standard of review.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (internal

citations and quotations omitted). Additionally, to be admissible, evidence

must be relevant; relevance is defined as “having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable.” Pa.R.E. 401, 402. Even if evidence is

relevant, it may be excluded if its probative value is outweighed by, inter alia,

the danger of unfair prejudice, confusing the issues, or misleading the jury.

See Pa.R.E. 403; see also Parr, 109 A.3d at 696. Further, if a party presents

evidence about a certain issue, then they possibly open the door to rebuttal

evidence that may have otherwise not been admissible. See Tillery v.

Children’s Hosp. of Philadelphia, 156 A.3d 1233, 1243 (Pa. Super. 2017);

see also Charlton v. Troy, 236 A.3d 22, 40 (Pa. Super. 2020). Lastly, both

physician negligence and the patient’s comparative negligence are questions

that are properly submitted to a jury. See, e.g., Ferguson v. Panzarella,

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700 A.2d 927, 930 (Pa. 1997); see also Zieber v. Bogert, 747 A.2d 905,

909 (Pa. Super. 2000) (providing that physician defendants “were entitled to

an appropriate jury instruction on the comparative negligence of [the plaintiff]

because there was some evidence of comparative negligence to warrant the

instruction”).

The Coles argue the trial court erred in denying their motion in limine

seeking preclusion of testimony by Dr. Lamsback based on relevance.

Specifically, the Coles argue that Dr. Wallace failed to meet the standard of

care for a patient with hyperlipidemia, because he did not write a prescription

for a statin, and, accordingly, any failures on Mr. Cole’s part to obtain follow-

up scans or take other recommended action is not relevant to Dr. Wallace’s

asserted negligence. See Coles’ Brief at 38-40. The Coles further argue that

“the focus on [Mr. Cole’s] supposed failure to follow the recommendation for

a repeat CT scan is irrelevant since he should have been on statin medication

no later than 2004 and, as . . . Dr. McGeehin acknowledged, a CT scan is not

[the] standard of care for patients on statin medications.” Id. at 41.

The trial court considered this issue and determined it lacked merit:

. . . [The Coles] raised the issue of Mr. Cole’s conduct when

they elicited testimony from Mr. Cole to the effect that “if Dr.

Wallace had prescribed it, [i.e., statins,] Mr. Cole would have

taken it,” and, presumably, it would have completely immunized

him in perpetuity from the consequences of his high cholesterol.

That proposition necessarily implicates the matter of Mr. Cole’s

conduct. Mr. Cole, by making this declaration, opened the door

to th[e] issue of his [compliance] with Dr. Wallace’s various

written treatment recommendations. . . . The jury could, and

apparently did, conclude that Dr. Wallace did tell Mr. Cole about

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statins, and further concluded that Mr. Cole simply was not

credible when he denied having [a] conversation [to that effect].

. ..

[In any event, t]he jury never reached issue of comparative

or contributory negligence. It was never asked to focus on

whether Mr. Cole bore any fault for his medical condition. The

jury focused on one question and one question alone in the agreed

upon verdict slip—did all [of] the things Dr. Wallace did over thirty

years of serving as Mr. Cole’s family physician fall short of what

the doctor needed to [do] in the treatment of Mr. Cole’s risks for

cardiovascular disease. The trial jury looked at[:] thirty years of

written medical records[;] . . . the recommendations[;] . . . the

various tests that were ordered[,] and the ones whose results Dr.

Wallace had[;] what Dr. Wallace provided to [Mr. Cole] in

response to the information available and the known risks[,] and

decided that Dr. Wallace had provided appropriate treatment

within the standard of care for a doctor in his position. The jury

never got to causation or to the qualifying effect of [Mr. Cole’s]

conduct . . ..

Trial Court Opinion, 10/24/22, at 20-21. Additionally, Appellee argues that

“[t]he presentation of the defense of comparative negligence, when supported

by the evidence, is a matter of right of the defendant, and not subject to

discretionary preclusion.” Appellee’s Brief at 30.

Based on our review, we conclude the trial court properly exercised its

discretion in denying the Coles’ motion in limine and permitting testimony by

Dr. Lamsback. Appellee pleaded the defense of comparative negligence. See

Answer, 7/17/19, at ¶¶ 24-26 (pleading the defense of comparative

negligence). As shown above, Dr. Lamsback’s testimony was relevant to the

defense of comparative negligence insofar as Dr. Lamsback testified about Mr.

Cole’s non-compliance with Dr. Wallace’s recommendations. This evidence

was properly put before the jury. See Ferguson, 700 A.2d at 930; see also

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Zieber, 747 A.2d at 909. Accord Verdict Sheet, 6/2/22 (Question 3, which

the jury did not reach, asking, “Was [Mr.] Cole comparatively negligent?”).5

Further, as discussed supra, Dr. Lamsback’s testimony was also relevant to

the issue of whether Dr. Wallace’s treatment of Mr. Cole complied with the

applicable standard of care. See, e.g., N.T., 6/2/22, at 41-42 (Dr. Lamsback

opining, “Really the standard of care is to have a discussion . . .. When a

prescription wasn’t written, the conclusion [is] the patient didn’t want the

statin . . . So[,] you wouldn’t write [it] . . .. . . . You educate and . . . the

patient [decides]”); see also id. at 48 (Dr. Lamsback opining that Dr. Wallace

met the applicable standard of care).

We additionally discern no abuse of discretion by the trial court, in

permitting Dr. Lamsback to testify about Mr. Cole’s compliance with Dr.

Wallace’s treatment recommendations, because, as the trial court concluded,

Mr. Cole opened the door to this line of questioning with his own testimony.

Mr. Cole testified that if Dr. Wallace had prescribed him a statin for cholesterol,

“Oh, of course,” he would have taken it. N.T., 6/1/22, at 110. Only after Mr.

Cole’s trial testimony did Dr. Lamsback testify about Mr. Cole’s compliance

with Dr. Wallace’s recommendations. See, e.g., N.T., 6/2/22, at 17-18 (Dr.

Lamsback testifying that in June 2000, Dr. Wallace recommended medication

____________________________________________

5 “On appeal, the reviewing court may affirm for any sound reason, and is not

limited to the grounds relied upon by the trial court if the result is correct.”

Larsen v. Philadelphia Newspapers, Inc., 602 A.2d 324, 332 (Pa. Super.

1991).

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to reduce Mr. Cole’s cholesterol, and asked Mr. Cole to “[p]lease contact the

office,” but there was no “evidence that there was any follow-up by [Mr.

Cole]”); see also id. at 38 (Dr. Lamsback testifying, “I mean, [Dr. Wallace]

repetitively [sic] called about canceled appointments, missed appointments

and continually brought it up[;] let’s get the CAT scan. . .. Wrote a note saying

we need to find out about the plaque. The patient got the notes and chose

not to do it”). As Mr. Cole opened the door to this line of inquiry, Dr.

Lamsback’s testimony was appropriate for this reason as well. See, e.g.,

Tillery, 156 A.3d at 1243; see also Charlton, 236 A.3d at 40. Because Dr.

Lamsback’s testimony about Mr. Cole’s compliance with Dr. Wallace’s

recommendations was relevant to the properly pleaded defense of

comparative negligence, and, further, Mr. Cole opened the door to this

testimony, Mr. Cole is due no relief.

Order affirmed.

Date: 10/19/2023

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